LITTLE did the judge know when sentencing a 19-year-old farm labourer to spend years in Britain’s Van Dieman’s land penal colony that his actions would have a profound effect on as yet unnamed town of Portsea.
James Sandle Ford was transported to what was to become Tasmania aboard the Eliza in 1831, a convicted fellon because of his role in an uprising of agricultural workers.
After being granted a free pardon in 1836, Ford went to Sydney in 1838, marrying Helen Sullivan in 1841. The Sullivan family had emigrated from Ireland two years earlier hoping to find employment in the Port Phillip area.
History shows that Ford, discarded by Britain, had the ability to organise and grasp business opportunities as they arose.
Three years after marrying Helen Sullivan he leased 30 acres of land at Point Nepean, the start of a career that would see him credited with naming Portsea, probably after an area near Portsmouth, the last place he saw in England as the Eliza sailed south in 1831.
Ford became an influential member of the community, building the first pier at Portsea from which to ship produce to Melbourne; helping establish the Point Nepean National School; holding a publican’s licence and running a rooming house, which was eventually transformed into the Nepean Hotel (demolished in 1971).
Ford was 79 when he died in 1890, but his contribution to to developing the Portsea area lives on in the town’s avenue of Cypress pines and now a reserve in Wattle Grove.
A sign at the reserve traces Ford’s life, and that of some of the eight children he had with Helen Sullivan.
Joan Hoskins worked with his great great granddaughter Carol Darroch, Nepean Historical Society and Mornington Peninsula Shire Council “to ensure that the last remaining parcel of land which had formed part of his original land holding was appropriately named the James Ford Reserve”.
“He owned land from Point Nepean through to what is now Wattle Grove in Portsea,” Ms Hoskins said.
The reserve joins the two sections of Wattle Grove, which is not a through road for vehicles.
Ms Hoskins said that the Melway street directly incorrectly shows “an area on the wrong side of Wattle Grove marked as the James Ford Reserve”.
“It never had this name and was never part of his land holding. The register of reserves has no record of the name there either. But the shire has verified where it was meant to be and is now named.”
Ms Hoskins managed the Sorrento Cemetery for 10 years where she found the family connections to be “fascinating”.
“I have lived in Portsea now for nearly 40 years and so know where everyone fits,” she said.
Discovering mistake in the street directory brought Ms Hoskins into contact with Ford’s descendants, eventually leading to the naming of the historically “correct” reserve.
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A former MasterChef contestant who plied a teenage girl with alcohol before grabbing her on a hotel bed has avoided jail, and instead been ordered to make a donation to charity and apologise to the girl.
In the Melbourne Magistrates’ Court today, Ben Ungermann admitted to the lesser charge of common law assault against the 16-year-old girl after prosecutors dropped three sex assault charges.
The chef was placed on the court’s diversion program, which allows low-level offenders to avoid a criminal record.
No finding of guilt was made against him.
The girl, who cannot be named because she is a child, was denied an opportunity to make a statement to the court because her comments were inconsistent with the facts that were part of the plea deal.
Magistrate Mia Stylianou ordered Mr Ungermann to make a $1,000 donation to the White Ribbon Foundation, get counselling and write a letter of apology.
She told the court that the teenager had told police that the outcome of the proceedings was “acceptable”.
“I have determined to give you the opportunity of diversion which means that there will be no recording of a conviction and no finding of guilt, but there is an admission of responsibility and acceptance of the charge before the court,” the magistrate said.
“I accept everything that’s been put on your behalf, the impact that these proceedings have had on you, the extra-curial punishment, the loss to your reputation and everything that has followed,” she said.
Outside court, his friend and fellow MasterChef contestant, Ben Bullock, who is also a lawyer, claimed victory.
“Benny’s been dealing with these charges now for more than 12 months. So we welcome the withdrawal of the sexual assault charges, which have been denied the whole time,” Mr Bullock said.
“We also welcome the opportunity for Benny to clear his name. It’s really just about him going forward now,” he said.
In February last year, the court heard that Mr Ungermann had dinner with the girl and plied her with alcohol, telling her that he “was going to get shitfaced”.
The pair then returned to a hotel where he now admits to common law assault.
Victoria Police prosecutor Sergeant Peter Murphy told the court that the incident started when Mr Ungermann tried to encourage the girl to hug him “without success”.
“The accused has then placed his hand under her armpit and across her right breast, over her clothing, and pulled her down onto his chest. His hand remained for approximately two seconds,” the sergeant said.
“[She] has pulled away from the accused … left the bedroom in a visibly distressed state.”
The father-of-three was arrested about two weeks later at a hotel where he was staying with the other MasterChef contestants.
Once he was charged, he was given an hour the following day to pack his things and leave.
The court heard police supported plans to put the 37-year-old on a diversion program.
His barrister, Abbie Roodenburg, told the court that Mr Ungermann was willing to accept responsibility for the charge.
“Mr Ungermann”s position has always been that he didn’t have any intention, there was no deliberate act,” she said.
But she took aim at the way her client was treated by police during his arrest.
“He was in the middle of filming the MasterChef show, and staying at the hotel room … and two plain-clothes detectives and two police in tactical gear arrived at his door,” she said.
“It was an incredibly shocking experience for him. He recalls being told that he was under arrest for sexual assault but certainly not who it was in relation to.”
The court heard Ungermann lost his sponsorship deals, had a heart attack and had been unable to work since being charged.
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Anyone under the age of 40 in the UK will be offered an alternative to the AstraZeneca coronavirus vaccine amid concerns of rare blood clots, reports suggest
The British government’s Joint Committee on Vaccination and Immunisation (JCVI) has recommended that the age threshold be lifted from 30, the Independent reports.
The (JCVI) recommended that people in the age group should instead be offered an alternative Pfizer or Moderna jab.
The move was described as “an abundance of caution” by one government source and comes after new data on blood clots associated with the vaccine rollout was released.
“Because prevalence of COVID is low and given the strength of the programme, that means we’re in a position to act with an abundance of caution and offer a different vaccine to the younger groups,” the source said.
The latest weekly figures from the UK Medicines and Healthcare products Regulatory Agency (MHRA) showed that case incidence of the rare brain clots combined with low platelet counts is 10.5 per million doses.
The source said the move would not affect the UK government’s target of offering a vaccine jab to all adults by late July.
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The Supreme Court has denied bail to a drug trafficker linked to police informer Nicola Gobbo, while he appeals against his conviction.
Barrister-turned-police informer Nicola Gobbo was the first lawyer to visit drug trafficker John Higgs when he was arrested for the so-called “tomato tin drug conspiracy” in 2008, the Supreme Court heard last week.
Higgs was sentenced to 18 years’ jail after he was convicted in 2012 of conspiring to smuggle 15 million ecstasy tablets — hidden in tomato tins – into Australia in 2007.
The 74-year-old is one of many prisoners appealing convictions after the Lawyer X scandal came to light.
“We are not persuaded that his prospects of success are of sufficient strength to justify his release on bail, while he still has years to serve before even his non-parole period expires,” Supreme Court Justices David Beach and Karin Emerton found.
“There is in our view nothing that could be described as ‘truly exceptional’ in the present case.”
On Thursday, the Supreme Court heard that Ms Gobbo had been informing on Higgs – who has served nine years of his sentence — to police while acting as one of his lawyers.
David Grace, who is representing Higgs, told the court that his client’s relationship with Ms Gobbo “goes back to the 90s”.
“Their relationship was resurrected in 2006, and flowing through to his arrest in 2008, when low and behold, the first lawyer Higgs sees when arrested for the tomato tins prosecution is Gobbo,” Mr Grace said.
“Gobbo was acting for Higgs in a solicitor-client relationship.”
He said Ms Gobbo intended to “inveigle information” from Higgs that was given to her in confidence and then inform on him as “an agent for Victoria Police”.
“That puts us in the same category as [Tony] Mokbel and [Faruk] Orman,” he said.
In 2019, Faruk Orman walked free from Victoria’s Court of Appeal after his 2002 murder conviction was quashed in the wake of the scandal.
The following year, the same court quashed a cocaine trafficking conviction for drug kingpin Tony Mokbel, who remains in jail for other offences.
Ms Gobbo represented both Mokbel and Mr Orman during court hearings.
Kevin Armstrong, for the Director of Public Prosecutions, told the court that Ms Gobbo did not represent Higgs in court, and he did have “senior or experienced” barristers act on his behalf.
“It’s notable that Ms Gobbo, at no stage, appeared on the record or in any court hearing [for Higgs],” he said.
“There’s no evidence of a forensic disadvantage because of the alleged misconduct of Ms Gobbo. [Higgs] relies on, in essence, an abuse of process in terms of a perception of a miscarriage of justice.”
In response, Mr Grace told the court that Ms Gobbo did not represent Mr Orman during his murder trial – but instead represented him on an unrelated case in Queensland.
Higgs’s co-accused in the tomato tins case, Calabrian mafia boss Pasquale Barbaro and Mokbel associate Rob Karam, have also lodged appeals against their convictions.
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After two-and-a-half days of twists and turns, Susan Neill-Fraser’s appeal against her murder conviction has wrapped up.
Sue Neill-Fraser’s lawyers abandoned evidence from a key witness after she gave contradictory evidence
Supreme Court judges have reserved their decision on whether there is fresh and compelling evidence to warrant a retrial
Supporters say they will continue the fight to free her from prison
The appeal, which was five years in the making, came to an early end after Neill-Fraser’s lawyers abandoned their star witness.
Neill-Fraser is about halfway through her 23-year prison sentence for the murder of her partner Bob Chappell aboard his yacht in 2009.
In August next year, she will be eligible for parole but supporters say she wants to go free as an innocent woman.
Neill-Fraser’s appeal against her conviction centred on the evidence of Meghan Vass, who was homeless and 15 at the time of Mr Chappell’s disappearance.
Ms Vass’s DNA was found on the boat — in the original trial and this appeal the Crown argued she had never been on the boat and it had been transferred there accidentally by another person.
Meaning, someone might have trod on it and then walked it onto the yacht.
Ms Vass, too, told the trial she had never been to Sandy Bay or on a yacht.
Neill-Fraser’s team maintain that Ms Vass was on the yacht that night and that is the most plausible explanation as to how her DNA got there.
But Ms Vass’s witness testimony during the appeal was contradictory.
On day one, she told the Court of Criminal Appeal she had been on the yacht with three other men, at least one of whom assaulted Mr Chappell.
By day two, in cross-examination, she had changed her story, telling the Director of Public Prosecutions she had never been on the yacht.
Neill-Fraser’s lawyers eventually decided to relieve her and abandon her evidence. Confirming in their closing argument that all of it was irrelevant to the case before the judges. The DPP did the same.
They instead focussed on what they labelled “issues” in the original trial, namely the DNA evidence of Ms Vass.
In closing arguments, Neill-Fraser’s junior counsel Chris Carr SC said reports by DNA expert Max Jones supported their argument that the DNA was deposited by Ms Vass herself.
This was for two reasons:
His explanation of how it could have got there with a secondary transfer did not match the explanation given by the Crown.
He said that such a large patch of DNA was more likely to have come from Ms Vass herself.
Neill-Fraser’s team said their explanation of Ms Vass visiting the yacht with some friends was just as plausible as the Crown’s version of events.
Mr Carr told the court that if the jury in the original trial had been given this evidence, there would have been some doubt in her guilt, meaning it was a “substantial miscarriage of justice” and he called for a retrial.
Director of Public Prosecutions Daryl Coates SC maintains that Ms Vass was never on the boat.
He told the court that the Four Winds yacht was not initially treated as a crime scene and therefore it was moved to Constitution Dock and then Goodwood, an area that Ms Vass had earlier told the court she spent time in.
He said at least 21 people had been on the boat before the sample was taken, which is how the secondary transfer could have occurred.
“[There’s the] sheer unlikelihood of Ms Vass being involved. At the same time, there’s overwhelming evidence that the appellant [Susan Neill-Fraser] was,” Mr Coates said.
After the case wrapped up, Neill-Fraser’s daughter Sarah Bowles said she felt very “optimistic” and hoped the judges would recognise the “substantial miscarriage of justice”.
“Mum is innocent and this needs to be rectified so that she can get out and be acquitted,” she said.
Ms Bowles said she would never stop fighting and was prepared to look at other avenues if this failed.
“I have heard many times that this is our last chance and yet here we are again,” she said.
“Whilst in some ways a lot rides on this, we will never stop fighting for this case.”
Neill-Fraser supporter Rosie Crumpton-Cook said “it was going to be a “tough” wait.
“Who knows how long it will be? she said.
“I hope for Sue it’s not too long.”
The judges have reserved their decision.
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George Floyd must receive justice, his family says ahead of opening arguments on Monday in the trial of the white police officer accused of killing the black man, whose agonising death ignited protests against racism and police brutality across the United States and around the world.
“I have a big hole right now in my heart. It can’t be patched up … I need justice for George. We need a conviction,” Mr Floyd’s brother Philonise told reporters in Minneapolis on Sunday.
Derek Chauvin, a veteran of the Minneapolis Police Department, faces murder and manslaughter charges for his role in the 25 May 2020 death of Mr Floyd, 46.
Mr Chauvin, 44, who was fired from the police force along with three other officers, could be sentenced to up to 40 years in prison if convicted of the most serious charge – second-degree murder.
“I have faith that he will get convicted,” Philonise Floyd said on Sunday.
The Minneapolis-based StarTribune newspaper called the trial “a defining moment in America’s racial history”.
Mr Floyd’s cause of death is expected to be the central issue in the case, and a key piece of evidence is likely to be the bystander-filmed video of his death that went viral and triggered a summer of anti-racism protests.
Mr Chauvin was seen in the video kneeling on Mr Floyd’s neck for nearly nine minutes while arresting him for allegedly passing a counterfeit $US20 bill.
While lying with his face in the street, the handcuffed Mr Floyd complains that he cannot breathe and calls out for his mother.
Mr Chauvin’s lawyer, Eric Nelson, is expected to argue that the officer was following police procedure and claim that Mr Floyd’s death was due to an overdose of the drug fentanyl and underlying health conditions.
Derek Chauvin faces murder and manslaughter charges for his role in the death of George Floyd.
Ben Crump, a lawyer for the Floyd family, said on Sunday that the defence would attack Mr Floyd’s character in hope that “you forget what you saw on that video”.
Opening arguments are to begin at 9am Central time (1am AEDT) in a heavily guarded Minneapolis courtroom for a trial being closely watched around the world.
Proceedings are expected to last about a month.
Fifteen jurors have been selected, though Hennepin County Judge Peter Cahill is expected to drop one juror on Monday and proceed with 12 and two alternates.
The panel seated after two weeks of jury selection is racially mixed: six white women, three Black men, three white men, two mixed-race women and one black woman.
Police officers are rarely convicted in the United States when charges are brought against them.
A conviction on any of the charges – second-degree murder, third-degree murder or manslaughter – will require the jury to return a unanimous verdict.
George Floyd must receive justice, his family said ahead of the trial of the white police officer accused of killing the black man.
‘Extreme amounts of publicity’
The public has been banned from attending the trial because of the COVID-19 pandemic, but it is being live-streamed.
The identities of the jurors will not be revealed until after the trial but some details are known.
They range in age from their 20s to their 60s and include a chemist, a social worker, an accountant and a nurse. Two are immigrants to the United States.
One is a grandmother, one is recently married and one is a single mother of two teenage boys.
The jury selection process was complicated by the intensive pre-trial publicity surrounding the case and all but one of the jurors said they had seen at least some of the arrest video.
Several potential jurors were excused after telling the judge they could not be fair or impartial or presume Mr Chauvin to be innocent as the law requires them to do.
Others expressed concern for their safety.
Mr Nelson, Mr Chauvin’s lawyer, asked to have the trial delayed and moved out of Minneapolis because of the 12 March announcement that the city had reached a $US27 million ($A35 million) “wrongful death” settlement with the Floyd family.
Judge Cahill rejected the demand, saying: “I don’t think that there’s any place in the state of Minnesota that has not been subjected to extreme amounts of publicity on this case.”
Three other former police officers – Tou Thao, Thomas Lane and J Alexander Kueng – also face charges in connection with Mr Floyd’s death.
They are to be tried separately later in the year.
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Ex-NRL star Sam Burgess, who was accused of intimidating his former father-in-law Mitchell Hooke during an altercation, has had his conviction overturned on appeal in the NSW District Court.
Mr Burgess was last month found guilty of intimidation following an argument at his ex-wife Phoebe Burgess’ father’s property in the Southern Highlands in October 2019.
Mr Burgess opted to appeal the decision, which Judge Mark Williams SC overturned on Friday at Goulburn District Court.
Judge Williams deemed the case a matter of “he said, he said” and said he was not satisfied Mr Hooke’s version of the altercation could be proven beyond reasonable doubt.
“This was a case of the word of Burgess against the word of Hooke,” Judge Williams said.
During evidence, Mr Hooke claimed Mr Burgess walked over to him and pointed his finger “1.5 metres to two metres” away from his face, yelling: “You’re a f–king piece of shit, I’m going to get you.”
Judge Williams said the argument did “not constitute intimidation” before quashing the conviction.
Judge Williams also said the accuracy of Mr Hooke’s version of events became questionable after both he and Ms Burgess “denied” speaking to anyone else prior to making statements to police.
Phone records read to the court showed the pair had spoken to personal lawyers and a PR expert ahead of going to Moss Vale Police Station.
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The jury’s verdict of manslaughter rather than murder suggests they found Davis’s response — to crack Mr McKee’s skull with a samurai sword after his girlfriend, Hannah Quinn, chased the intruder down the street — was excessive.
The notorious flexibility of ‘reasonableness’
Andrew Dyer, Senior Lecturer at University of Sydney Law School, says the division between self-defence and excessive self-defence turns on the question of reasonableness.
“Reasonableness is a notoriously flexible concept,” Mr Dyer said.
“When juries apply that concept, there’s no certainty as to how they will apply it, and so different juries can come up with different determinations on similar facts.”
He said the test of self-defence had two “limbs”.
Firstly, a person must establish they believed their conduct was reasonable in defence of themselves or others.
Secondly, the person must establish that the conduct was a reasonable response in the circumstances as they were perceived at the time.
“Although it’s oversimplifying it a bit, excessive self-defence really applies where you can establish a possibility of the first but not the second limbs of the test for self-defence,” Mr Dyer said.
During an unsuccessful bail application pending an appeal, Justice Natalie Adams said the only way the jury could have acquitted Davis was if he gave clear evidence of the circumstances as he perceived them.
Earlier in sentencing, she rejected Ms Quinn’s claims to police that Mr McKee was pointing his imitation gun at her when Davis struck him.
The verdict was consistent with a conclusion that the intruder did not pose “any immediate threat to Ms Quinn such as would have made the fatal sword strike a reasonable response by Mr Davis,” the judge said.
She also found Davis intended to kill Mr McKee.
A case may also turn on whether an aggressor was running away from the defendant, as McKee was, Mr Dyer said.
Another example of this was in the case of Benjamin Batterham.
Mr Slater later died in hospital as a result of an undiagnosed heart condition and toxic levels of the drug ice in his system
This landed Mr Batterham in a Supreme Court murder trial in 2019, where he was cleared of both murder and manslaughter.
Mr Dyer said if Davis and Ms Quinn had simply restrained Mr McKee until police arrived, the case would have played out differently.
The case of the boxing champion
Craig Charles Pitts was a man who satisfied the first limb of the self-defence test, but whose conduct after his Redfern door was kicked down by two men in 2011 was found to be not reasonable.
One of the men was former Australian boxing champion John Marceta, and the other wanted to buy cannabis, as he had done in the past.
Pitts, recognising Mr Marceta as a boxer and worried about his two nieces who were home at the time, grabbed a knife from the kitchen, followed the men down the hallway and fatally stabbed Mr Marceta in the chest.
He was found guilty of manslaughter — which the judge found was by excessive self-defence — and received a maximum sentence of 10 years.
Grabbing a knife was, in the words of the sentencing judge, “a heinous and misguided attempt to redress the physical discrepancy between them” which resulted in “disastrous and irreversible consequences”.
Pitts appealed against his sentence in 2014 but it was rejected.
Hindsight another difficulty in the courtroom
One of the trickiest parts of self-defence cases is that a person’s actions in the heat of the moment are scrutinised so heavily in hindsight by the court.
But Mr Dyer said the law recognises that difficulty.
“It’s a well established principle of self-defence law that if you’re the jury, you don’t judge the accused too harshly,” he said.
“So in other words, you take into account when you’re determining whether it was a reasonable response, the fact that the accused didn’t have all that long to work out what to do and was faced with a situation of emergency.”
During the Davis sentencing, Justice Adams acknowledged the offence of manslaughter produces “the greatest variety of circumstances affecting culpability of any other criminal offence”.
That means the range of sentences that can be imposed range from the maximum 25 years in prison, right down to a non-custodial term.
Excessive self-defence provisions also differ in each state and territory.
Davis is taking his matter to the Court of Criminal Appeal, where he will argue that an accumulation of factors during the trial gave rise to a miscarriage of justice.
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A case that first made headlines in 2009 returned to court this week as a Hobart grandmother continued her fight for freedom.
Susan Neill-Fraser was convicted in 2010 for the murder of her partner, Bob Chappell, on Australia Day, 2009
A law change in 2015 has given her another chance to appeal against the conviction
Tasmania’s Court of Criminal Appeal will decide whether she has “fresh and compelling” evidence casting doubt on the conviction
Susan Blyth Neill-Fraser is serving a 23-year sentence for murdering her partner, Bob Chappell, 65, on board their yacht, the Four Winds, moored off Sandy Bay on Australia Day 2009.
Mr Chappell’s body has never been found. Nor has the murder weapon.
Then chief justice Ewan Crawford was one of three judges who dismissed Neill-Fraser’s 2012 appeal against her conviction.
In his summary of the case published in the 2012 decision, he said:
“The jury was urged by counsel for the Crown to conclude that in the days and months following the killing of the deceased, [Neill-Fraser] told a great number of lies concerning her movements that day and night, in the course of which she kept changing her position, and that the jury should conclude that they were told out of a consciousness of guilt, knowing that the truth would reveal it.”
Neill-Fraser’s team was led in court this week by Melbourne-based barrister Robert Richter QC, known for his defence of high profile people, including Cardinal George Pell and underworld figure Mick Gatto.
Mr Richter initially described evidence from Meaghan Vass, a homeless 15-year-old in 2009 whose DNA was found on the Four Winds’ deck, as “our case”.
Evidence from Meaghan Vass at trial
The court this week heard that in 2010, Ms Vass told the jury she did not remember ever being on or near the yacht at the time of Mr Chappell’s disappearance and could not remember where she was on the night of January 26.
The prosecution at trial argued Ms Vass’s DNA got onto the deck as a result of secondary transfer — such as from the sole of a shoe.
Neill-Fraser’s barrister David Gunson SC tried to have Ms Vass recalled to give further evidence at the trial, after police subsequently received information about her whereabouts on January 26.
The information was that she had left a shelter in New Town at 3:50pm and said she would stay at a unit in Mount Nelson.
There was an arrangement that she would telephone later with the number of the person she would be staying with but failed to do so.
Trial judge Justice Alan Blow ruled against Mr Gunson.
“The question of just where Meaghan Vass was and what she did on the night of January 26 seems to be peripheral when her version of events is unshakeably, or apparently unshakeably, that she did not go onto the Four Winds, that she didn’t go to the slip yard at Goodwood, and that she didn’t go to Constitution Dock at or about the time the boat was there,” he said.
It became a ground of Neill-Fraser’s 2012 appeal against her conviction.
Then-chief justice Ewan Crawford said in his reasons for dismissing the 2012 appeal that Neill-Fraser had “failed to establish that there is a significant possibility, one greater than a merely speculative one, that the jury would have acquitted her if Ms Vass had been recalled.
“It cannot be concluded that the verdict was unsafe or unsatisfactory, or that a miscarriage of justice resulted”.
Law change brings right to appeal
Neill-Fraser was unsuccessful in taking her case to the High Court, but in 2015 a law change in Tasmania gave convicted people the right to a second or subsequent appeal if they have “fresh and compelling” evidence and can argue that as a result of that evidence not being considered in the original trial, there may have been a substantial miscarriage of justice.
If such an appeal is successful, the court can order a re-trial, or acquit.
It is this legislation that allowed Neill-Fraser’s current appeal. Again, Meaghan Vass has been central.
This week, the Court of Criminal Appeal heard Ms Vass made a statement in 2017 that she had been on board the Four Winds with people she would not name, and that Neill-Fraser was not on the boat, but that later that year, she recanted.
The court also heard she told Nine’s 60 Minutes program in 2019 that she had been on the boat with two other males and saw at least one of them assault Mr Chappell.
On Monday, Ms Vass told the Court of Criminal Appeal she was on board with three other males and was there when one was involved in a violent altercation with Mr Chappell, and that Neill-Fraser was not there.
Under cross-examination, Ms Vass recanted that evidence and told the court she had been hounded since about 2016 to say she had been on board.
The court adjourned early on Monday after Ms Vass’s solicitor told the court his client was too distressed to continue.
Mr Richter on Tuesday told the court his client would no longer rely on Ms Vass’s evidence. The appeal now rests on questions about how her DNA came to be on the yacht.
‘Significant possibility’ of different verdict
Her lawyers are relying on evidence previously given by Victoria Police forensic specialist Maxwell Jones to argue the prosecution was wrong at trial to dismiss the DNA deposit as a red herring.
“There is …a significant possibility that the jury would have delivered a different verdict if the evidence of [Maxwell] James had been before it,” barrister Chris Carr SC told the court.
DPP Daryl Coates SC said the evidence was not fresh or compelling, and Mr Jones had not been able to rule out secondary transfer.
He also said the DNA swab was taken three days after Mr Chappell’s disappearance, and, according to Mr Jones, the DNA matching Ms Vass’s was likely to be a day or two old when it was swabbed.
When the hearing ended earlier than expected, the court reserved its decision.
The question before it is not whether Neill-Fraser is guilty or innocent, but whether there is fresh and compelling evidence that casts doubt on the original verdict.
Over the years, a group of supporters has rallied around Neill-Fraser, attending her court appearances and showing their support for her in the community.
More than 20 of her supporters lined up outside the court on Monday morning, where seating was limited because of COVID-19 restrictions.
Neill-Fraser’s family members and some supporters were able to sit in court room one, and the proceedings were shown via video link to another court room being used for overflow seating, and to the court’s jury assembly room, which is where journalists watched the proceedings along with some members of the public.
On Wednesday, the third and final day of the appeal hearing, supporters in the court room marked Neill-Fraser’s 67th birthday.
“We sang Happy Birthday to her as she came into court,” supporter Rosie-Crumpton Cook said outside court.
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A Geelong police officer found guilty of assaulting a prisoner has avoided a conviction due to his “exemplary” history in the police force.
Sergeant David Magher was earlier this week found guilty in the Geelong Magistrates’ Court of two counts of assault, after kicking Andrew Birch at Corio Police Station in September 2018.
Magistrate John Lesser today sentenced Sergeant Magher to pay a $4,250 fine for the assault but decided not to record a conviction.
Earlier in the week, Magistrate Lesser ruled the first of three kicks delivered by Sergeant Magher was a reasonable use of force but the two kicks that followed were assault, describing the kicks as “gratuitous and unnecessary”.
During sentencing, Magistrate Lesser said police officers were required to confront people on a regular basis that were “often reactive and defiant” but the community was “required to trust that even in these challenging circumstances police must act lawfully, which requires a great deal of tolerance and patience”.
“Your character and past history to that point are exemplary, in terms of your employment, and in my view there is a likely impact of recording a conviction on both your social wellbeing and economic wellbeing and your future employment prospects,” he said.
“On balance therefore I have decided to exercise discretion not to record a conviction.”
Magistrate Lesser said he hoped if Sergeant Magher remained in the police force that he always remembered what constituted “lawful and appropriate conduct”.
Defence lawyer Stewart Bayles argued his client’s background, with no prior convictions and nine Victoria Police awards for exemplary work, should be considered when sentencing.
He also asked Magistrate Lesser to take into account Sergeant Magher’s dedication to policing over his 26-year career, including being part of a program to reduce mental and physical harm to police officers and offenders, and being in charge of a unit in Geelong to reduce youth crime.
Mr Bayles said Sergeant Magher still dealt with the impact of attending two teenage suicides in the years before the 2018 incident and saving someone from an attempted suicide on the West Gate Bridge.
He said Sergeant Magher had also been seriously injured “multiple times” throughout his career.
Mr Birch, who was 36 at the time of the incident, died a week after being released from custody from a suspected drug overdose.
In a victim impact statement, Mr Birch’s father Gary Birch said his son was “larger than life” and someone who showed “genuine remorse” when he did the wrong thing.
“Andrew’s four days in custody were very stressful for our family. We were aware something had happened but were not aware of any information. We were trying to help him but couldn’t,” Gary Birch said.
“To know he was treated so inhumanely days before his death breaks our hearts.”
Magistrate Lesser said he “felt great sympathy” for the Birch family for their loss, but noted that the family’s victim impact statement was within “a much broader context than just the charges [Sergeant Magher] must be sentenced on today”.
The magistrate said he hoped the sentencing brought “a conclusion to what has been a long and difficult process for you to follow”.
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