By Andrew L. Urban
In what acclaimed legal expert Dr Bob Moles describes (60 Minutes, 9 Network, Sunday, August 24, 2014) as the worst miscarriage of justice in 40 years, the 2010 murder conviction of Sue Neill-Fraser has now been fatally and forensically undermined with the latest report from the Victorian Police Forensic Services Department.
[ The Neill-Fraser case: In 2010, Sue Neill-Fraser was tried and convicted of the 2009 Australia Day murder of her partner Bob Chappell on board their yacht, Four Winds, anchored in Sandy Bay, Hobart. Chappell’s body has never been found, no murder weapon was produced at her trial, there were no eyewitnesses and there is no forensic evidence linking Neill-Fraser to the murder. ]
As explosive and far reaching as the finding of the legendary matinee jacket in the Lindy Chamberlain case 28 years ago, the DNA report confirms that a person other than the accused was present at the crime scene. (The accidental discovery of baby Azaria Chamberlain’s matinee jacket near a dingo lair well after Lindy had been tried, convicted and jailed, led within five days to her release from prison, as it was evidence supporting a key element of her defence.)
In Ms Neill-Fraser’s case, the investigating police and the DPP during the trial, as well as the subsequent appeal judges, all dismissed the DNA sample found on the yacht and its provenance, as being of no consequence, “a red herring” said the DPP, Mr Tim Ellis, since it was probably transferred on the shoe of a policeman, he suggested to the jury. He told the High Court that “The core evidence was … she [the homeless girl] was not on the boat” – and the High Court refused leave to appeal on that basis.
The DNA of a then homeless 16 year old girl found on Four Winds on January 30, 2009, is now confirmed by Victorian Police Forensic Services Department to be of primary transfer in nature, contradicting the evidence she gave at trial saying she had never been on the boat. (Ms Neill-Fraser’s lawyer was unable to access the necessary materials to have new independent DNA tests carried out until the Coroner’s report was handed down early in 2014.)
This report contradicts the prosecution’s argument on the matter, it contradicts the Court of Criminal Appeal’s reasoning for refusing to uphold this ground of appeal, and it contradicts the High Court’s view that the matter was not on a substantial point.
Taken together with a litany of serious legal and other forensic errors at trial, this represents a catastrophic failure of the justice system, and if such an error is not urgently addressed, democracy itself suffers through the erosion of public confidence in what is one of the main pillars of our democratic system – a safe, reliable, self-correcting criminal justice process.
Referring to the new DNA report, Ms Neill-Fraser’s lawyer for the last two years, Ms Barbara Etter APM, says: “The conclusion has to be drawn that the DNA was deposited directly onto the deck of the yacht by the homeless girl. Given the girl’s constant denials about ever having been on the boat, this development presents a rational or reasonable alternative hypothesis which has not been excluded as to what may have happened to Bob Chappell on Australia Day 2009”.
In his closing (CT pp.1428 – 1461) defence counsel Mr Gunson SC repeatedly mentioned the Meaghan Vass DNA. He argued that transference was not credible and that the homeless girl was on board. It therefore followed logically that she could not be excluded as a rational hypothesis.
In the Appeal Court, Mr Gunson (at p93) again stressed the implications of the DNA: “To say that it’s completely speculative is just not open in my respectful submission. It’s quite the opposite, you’ve got a person whose DNA is there about whom there is evidence that she’s lied to the Court or may well have lied to the Court about her whereabouts on that night. It went not just to the possibility of an alternative suspect, it also went to the issue of whether or not this boat had been the subject of unlawful interference at earlier or later stages, because that was part of the appellant’s defence
On what basis did the Victoria Police Forensic Office (VPFO) conclude that the “DNA was deposited directly onto the deck of the yacht by the homeless girl.”
The scientific validity of the conclusion reached by the VPFO has to be verified by independent scientists before it can be accepted as the most probable explanation at the exclusion of the secondary transfer.
I very much doubt that the science of DNA analysis has advanced to the stage where a forensic expert specialising in DNA analysis can to a sufficient level of confidence determine whether the transfer was primary or secondary.
Dr Peter Lozo
Applied Physicist/Perceptual Scientist
Adelaide, South Australia