Neill-Fraser, Susan Blyth v State of Tasmania [TASCCA]

• Jurisdiction: Tasmania
• Judge: Crawford CJ,Tennent J,Porter J
• Judgment Date: 06 March 2012
• Court: Court of Criminal Appeal
• Date: 06 March 2012
• Docket Number: 929/2010

[2012] TASCCA 2

SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

Crawford CJ, Tennent and Porter JJ

929/2010

Neill-Fraser, Susan Blyth

and

State of Tasmania

REPRESENTATION:

Counsel:

Appellant: M J Croucher, K Cuthbertson

Respondent: T J Ellis SC, J Shapiro

Shepherd v R (1990) 170 CLR 573 , applied.

Penney v R (1998) 72 ALJR 1316 , not followed.

R v Pantoja [1998] NSWSC 565 , R v Plevac [1999] NSWCCA 351, R v Fowler (2003) 151 A Crim R 166, R v Kotzmann [1999] 2 VR 123, R v Koeleman [2000] 2 VR 20, R v Nguyen (2001) 118 A Crim R 479, R v Cummins (2004) 10 VR 15, approved.

Aust Dig Criminal Law [2709]

Shepherd v R (1990) 170 CLR 573 , followed.

Re Belhaven and Stenton Peerage (1875) 1 App Cas 278 , Liberato v R (1985) 159 CLR 507, referred to.

Chamberlain v R (No 2) (1984) 153 CLR 521 , HML v R (2008) 245 ALR 204, distinguished.

Aust Dig Criminal Law [2711]

Edwards v R (1993) 178 CLR 193 , Zoneff v R (2000) 299 CLR 234, Nguyen (2001) 118 A Crim R 479, R v Chang (2003) 7 VR 236, R v Cook [2004] NSWCCA 52, R v SBB (2007) 175 A Crim R 573, R v MC [2009] VSCA 122, approved.

Aust Dig Criminal Law [2910]

R v Cavkic (No 2) [2009] VSCA 43 , R v Wilkinson (No 5) [2009] NSWSC 432, applied.

Fox v Fletcher unreported 17/1970, referred to.

Aust Dig Criminal Law [3274]

Criminal Law — Evidence — Matters relating to proof — Standard of proof — Circumstantial evidence — Motive — Whether facts establishing a motive are indispensable to the drawing of an inference of guilt — Whether those facts must be proved beyond reasonable doubt — Direction to jury.

Criminal Law — Evidence — Matters relating to proof — Standard of proof — Circumstantial evidence — Reasonable hypothesis consistent with innocence — Directions to jury — Adequacy — Whether a need for a direction that intermediate facts must be proved beyond reasonable doubt.

Criminal Law — Evidence — Corroboration — What constitutes corroboration — Admissions and conduct of accused — Lies, denials etc — Post-offence conduct — Allegations of laying of a false trial — Whether relied on by Crown as probative of guilt or going to credit — Direction to jury.

Criminal Law — Sentence — Relevant factors — Response to charges — Co-operation with police or assistance to authorities — Generally — Post-offence conduct — Inconvenience and expense of investigation caused by accused's actions — Whether an aggravating factor.

Orders of the Court

• 1 Insofar as leave to appeal against conviction is required, leave is granted.

• 2 Appeal against conviction dismissed.

• 3 Appeal against sentence allowed.

• 4 Sentence quashed and in lieu the appellant is sentenced to imprisonment for 23 years from 20 August 2009 and it is ordered that she is not to be eligible for parole until she has served 13 years of the imprisonment.

REASONS FOR JUDGMENT

COURT OF CRIMINAL APPEAL

Crawford CJ

1 At a trial before Blow J, the appellant was found guilty of murder. She was sentenced to imprisonment for 26 years with effect from 20 August 2009, and it was ordered that she was not to be eligible for parole until she had served 18 years of the imprisonment. She appealed against both the conviction and sentence.

The appeal against conviction

2 Insofar as she sought to appeal against the conviction, leave of the Court to appeal is required for a ground of appeal other than one which involves a question of law alone. Criminal Code, s401(1). Some of the grounds of appeal raise questions of fact. However, nothing of significance should arise out of deficiencies in the notice of appeal. Because of the importance of some of the issues raised, it is appropriate to give leave to appeal.

3 There are a number of grounds of appeal. For reasons I will give, none of them should succeed. They require individual attention, but before dealing with them it is worthwhile relating some of the aspects of the case.

4 The appellant was charged with the murder of Robert Adrian Chappell on or about 26 January 2009. At the time of the events she was aged 55 and he was 65. He was employed as a physicist at the Royal Hobart Hospital. From about 1992 they lived together at a house in Allison Street, West Hobart. He had three adult children from a marriage, and she had two adult children from a marriage. On 26 January 2009, the day upon which it was alleged the murder was committed, the appellant and the deceased were the only ones living at the house.

5 In September 2008, they purchased a 53 foot ketch called Four Winds in Queensland. It was brought to Hobart in December 2008.

6 From about 9am on 26 January 2009, the deceased was on the yacht where it was moored off Marieville Esplanade, Sandy Bay, for the purpose of doing work on it. The appellant was with him on the yacht for a short time in the morning and returned to it at about 2pm, using the yacht's tender, an inflatable dinghy. Later in the afternoon she returned to the shore in the tender. The deceased remained on the yacht.

7 At about 5.40am on 27 January, a witness found the dinghy bobbing against rocks. The witness secured it. With another man he headed out in a boat. As they passed the Four Winds they noticed that it was very low in the water on its mooring. They boarded it. Shortly after, the police arrived as a result of a call.

8 The deceased was not on board and he has not been seen since. The boat had been sabotaged and was sinking. A pipe had been cut and a seacock opened allowing seawater to flow in. An automatic bilge pump and alarm had been deactivated. Blood was found on the yacht, including on steps leading down to the cabin.

9 It was the Crown case that through violence the appellant killed the deceased, winched his body onto the dinghy and, having weighed it down, disposed of it somewhere in the water. The Crown case depended entirely on circumstantial evidence.

The circumstantial evidence and some of the Crown's case based on it

10 I will relate some of the circumstantial evidence and the Crown's case. As the appeal does not attack the correctness of the jury's verdict, it is unnecessary to relate the appellant's arguments concerning much of it, nor her evidence in which she denied responsibility for Mr Chappell's death.

11 The appellant and the deceased purchased and took possession of the Four Winds at Scarborough Marina in Queensland. The purchase price was $203,000. Work was required to be done on it. They organised for work on the engine prior to sailing from Queensland for Hobart. They expected it would cost $6,000 to $7,000, but there was evidence that it in fact cost close to $20,000. Once it was in Hobart it was discovered that the engine was damaged and in need of major work. In her evidence, the appellant accepted that by 28 December 2008 they had spent $243,422 on expenses connected with the boat, which included the purchase price. There was evidence suggesting that they had spent more than they had originally planned.

12 They hired two crew members for the journey from Queensland to Hobart. They were Peter Stevenson and David Casson. They commenced sailing on 7 December 2008. During the first part of the trip the deceased suffered a nose bleed. When approaching Southport on the second day the engine failed and the coastguard was called to tow them in. The deceased suffered another nose bleed which persisted. While at Southport he worked on the engine but continued to suffer nose bleeds and was admitted to hospital for treatment. It was arranged that the appellant and the two crew members would set sail and he would rejoin the yacht in Sydney. However, the crew members were concerned that he might have further nose bleeds and he did not rejoin them. Instead, he flew home to Hobart while the others brought the yacht there, arriving late on the evening of 23 December. A number of mechanical and equipment problems had marred the trip.

13 Evidence was given by Mr Stevenson that during the journey the appellant said that her relationship with the deceased was strained, it was over and it had been for some time. She also said that she would like to borrow $100,000 from her mother to buy out the deceased's interest in the yacht.

14 The deceased went to Marieville Esplanade early in the morning of 24 December to meet with the appellant and the crew following their arrival. Mr Stevenson's evidence was that the deceased ‘went to approach Sue and she really just stood back from him and ignored him, didn't sort of respond to his—to, you know, acknowledging that—how he was’. He said that he had noticed no sign of affection between them when they were together on the boat.

15 Evidence was given by the deceased's son, Timothy Chappell, that on 26 December 2008, and again two or three weeks later, he was on the Four Winds when the appellant and deceased were both present. He thought that ‘there was quite a lot of tension between them’, and said that he ‘felt a bit uncomfortable on the boat because of the tension between them’. He referred to sniping words and obvious friction between them. The source of it appeared to him to be that they had different expectations for what they would do with the yacht.

16 Evidence was given by Jeffrey Rowe, a Queensland yacht broker who negotiated the sale of the Four Winds to the appellant and the deceased. He said that in the course of a telephone conversation he had with the appellant on 8 January 2009, she told him that she and the deceased had separated and she commented ‘that she was just tired of having to do everything’.

17 On 25 January 2009, the appellant, the deceased and his sister, Caroline Sanchez, spent a day cruising to Bruny Island and return on the yacht. Ms Sanchez was staying with them on a visit from Sydney. They used the motor there and back. There was no evidence that they tried to sail. 1 When they were at Bruny Island the anchor winch failed and they were unable to lower the anchor. Ms...