PASSAGE OF THE DAY: "The primary ground of appeal – the most critical element in the case from the start – is the central question surrounding the DNA that was found on the deck of Four Winds, later matched to then 15 year old homeless girl, Meaghan Vass. At trial, under perfunctory questioning, a terrified and vulnerable Vass denied having been on board. When it was discovered she had lied about her real whereabouts that night, then DPP Tim Ellis SC objected to her being recalled, and was supported by Justice Blow. This was a crucial decision. But things eventually changed – when Vass changed her testimony, as recorded in an affidavit and broadcast on 60 Minutes on March 10, 2019, Her testimony now correlates with the DNA evidence, the only real evidence in the case."
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PASSAGE TWO OF THE DAY: "Vass is called to the stand and sworn in. Unlike at her previous court appearance, Vass is calm, if nervous. It is put to her that she had made conflicting statements about being at the crime scene on the night of Australia Day 2009. She accepts that. She says she now wants to tell the truth because she wants to see Neill-Fraser returned to her family – an echo of what she said on 60 Minutes. (It might be thought she had grown up and had developed a guilty conscience about Neill-Fraser."
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Asked about the DNA, Vass says she had vomited. Asked if she had seen Sue Neill-Fraser on board that night, she said she had not.
In cross examination, DPP Coates asks why she has changed her version of events. Vass lowers her head and says quietly: “I was scared of what might happen to me if I told the truth at the trial…”
POST: "Sue Neill-Fraser and expectations of the appeal judges," by Andrew L. Urban, posted on his Blog - The Wrongful Convictions Blog - on April 30, 2020.
GIST: "Three Tasmanian judges will hear Sue Neill-Fraser’s new appeal later this year against her conviction for the 2009 murder of her partner Bob Chappell, amid concerns that the appeal should be heard not by local but by interstate judges. One reason is that the trial judge, Alan Blow, is now Chief Justice of Tasmania – their boss. But no doubt Justices Helen Wood, Stephen Estcourt and Robert Pearce will exercise objectivity and learned good judgement, as we suggest in this hypothetical.
Sue Neill-Fraser’s family is seated in the front row of the Supreme Court’s public gallery, immediately behind the bar table, where the black robed teams from the DPP led by Daryl Coates SC and Tom Percy SC for the defence take their places like so many crows on an overhead wire.
The pews are filled with the media and general public, including a large presence from loyal and ever-active Supporters of Sue group. Everyone stands as the three judges enter.
Sue Neill-Fraser is brought in, seated in her wheelchair and parked in the area usually populated by the jury, facing the witness stand. Anticipation, tension, apprehension and dread are swirling invisibly but palpably around the court.
The primary ground of appeal – the most critical element in the case from the start – is the central question surrounding the DNA that was found on the deck of Four Winds, later matched to then 15 year old homeless girl, Meaghan Vass. At trial, under perfunctory questioning, a terrified and vulnerable Vass denied having been on board. When it was discovered she had lied about her real whereabouts that night, then DPP Tim Ellis SC objected to her being recalled, and was supported by Justice Blow. This was a crucial decision …
But things eventually changed – when Vass changed her testimony, as recorded in an affidavit and broadcast on 60 Minutes on March 10, 2019, Her testimony now correlates with the DNA evidence, the only real evidence in the case.
Neill-Fraser has come to this appeal court with a nagging concern, ever since the December 19, 2019 directions hearing at which Justice Estcourt made an unexpected remark in an exchange with Coates: I imagine your position would be the same before this Court, that is that Ms Vass’ evidence might be highly probative and it might be substantial but it’s not reliable, therefore it’s not compelling.
Sure enough, Tom Percy now goes straight to this issue, arguing that Vass lying about being on the yacht at the time of the crime does not correlate with the DNA evidence, whereas her latest testimony does. And he repeats Estcourt’s words back at the bench, that Vass’ evidence is therefore ‘highly probative and substantial’. Percy argues that her testimony is probative and substantial, so it cannot be dismissed on the grounds that she has been an unreliable witness. It would be absurd to suggest that she is now lying, effectively to put herself in even more trouble. So it is indeed compelling. With the DNA evidence and her sworn testimony, Vass could be said to have been unreliable in her previous two court appearances where she denied being at the crime scene. But her admission now would make no sense unless it was true. The court must not ignore that reality.
In conclusion, Percy flirts with contempt of court by referring to Estcourt’s remarks at the earlier directions hearing, suggesting that those remarks demonstrate a view formed before the case was properly presented to the bench – a perception of bias might be inferred… with all due respect, of course.
The DPP’s team is agitated, the public murmurs and the judges pause. Estcourt calls for a short adjournment while the three judges confer privately.
On their return, Justice Pearce reprimands Percy for his suggestion of bias in Estcourt’s comments and says it is the court’s duty to have prepared for the appeal in every sense. However, he says, Vass has committed perjury – her conflicting statements cannot both be true – and her testimony is tainted by that.
Justice Pearce then announces that the judges will consider the matter subject to sworn testimony from Meaghan Vass.
Vass is called to the stand and sworn in. Unlike at her previous court appearance, Vass is calm, if nervous. It is put to her that she had made conflicting statements about being at the crime scene on the night of Australia Day 2009. She accepts that. She says she now wants to tell the truth because she wants to see Neill-Fraser returned to her family – an echo of what she said on 60 Minutes. (It might be thought she had grown up and had developed a guilty conscience about Neill-Fraser…)
Asked about the DNA, Vass says she had vomited. Asked if she had seen Sue Neill-Fraser on board that night, she said she had not.
In cross examination, DPP Coates asks why she has changed her version of events. Vass lowers her head and says quietly: “I was scared of what might happen to me if I told the truth at the trial…”
Justice Pearce interrupts to ask if Vass would have told the truth had she been recalled at the trial. Vass shrugs; “I don’t know…”
“And we will never know, either,” says Justice Pearce, in what could be interpreted as a mild rebuke to the then DPP and trial judge.
Justice Pearce adjourns the court, reserving judgement to a later date."
The entire post can be read at:
PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy: Publisher: The Charles Smith Blog;
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FINAL WORD: (Applicable to all of our wrongful conviction cases): "Whenever there is a wrongful conviction, it exposes errors in our criminal legal system, and we hope that this case — and lessons from it — can prevent future injustices."
Lawyer Radha Natarajan:
Executive Director: New England Innocence Project;
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