By Andrew L. Urban
Several serious legal errors were made at the 2010 trial of Sue Neill-Fraser, any one of which warrants the murder conviction being set aside, according to a legal expert in miscarriages of justice, Dr Bob Moles.
“The evidence given to the court by the forensic scientist was totally inadmissible. This error warrants the conviction being set aside.”
“The evidence given to the court by the forensic pathologist was totally inadmissible. This error warrants the conviction being set aside.”
“The prosecution address to the jury was in breach of the legal rules and prosecution guidelines, and was seriously prejudicial. This error warrants the conviction being set aside.”
“The judge’s summing up was in breach of legal rules and was seriously prejudicial. This error warrants the conviction being set aside.”
“These issues were not presented to the Appeal Court so the judges did not have the opportunity to consider these serious errors.”
The High Court: “I’m confident the High Court and the Appeal Court will overturn the conviction if given the chance to address these issues.”
These alarming findings are based on a list of errors made by senior legal practitioners –notably the DPP and the Judge (now Chief Justice and Acting Governor of Tasmania) – at the trial of Sue Neill-Fraser in 2010, in which she was (not safely, it seems) convicted of the 2009 Australia Day murder of her partner Bob Chappell on board their yacht, Four Winds. As Mr Chappell’s body has never been found there are no body marks to inspect and the prosecutor had no weapon and no witnesses to present to the jury, as to the facts relating to a possible cause of death. Yet he speculated in detail on how Mr Chappell may have been murdered with a wrench below decks, winched up and into the yacht’s dinghy to be then dumped in the water, weighed down by a fire extinguisher.
“The extraordinary thing is that these speculative claims were actually based upon the absence of evidence. There was no body, no fire extinguisher and no wrench. The law makes it clear that such speculation is not permitted in criminal trials,” remarks Dr Bob Moles*, after studying the trial transcripts.
Dr Moles is in Hobart from today (Monday, August 18, 2014) to address a law School seminar, a rally supporting calls for a review of the Neill-Fraser conviction and to brief several Tasmanian MPs on the details of his findings. August 20 is the 5th anniversary of Neill-Fraser’s arrest.
Prosecutor’s summing up:
Among other things, Dr Moles pinpoints “The worst aspect of the summing up by the prosecutor … when he told the jury that Mr Chappell was most likely killed by a single blow to the head by a heavy wrench. He said it would have been a big wrench because it was a big boat – as if there was some logical connection between the two. He then added that such a method of killing Mr Chappell could only have been done by someone he was friendly with, not a stranger.”
The prosecutor then added that the injuries to the body would have been indicative of an attack by a friend not a stranger; “to make such claims without any proper evidential basis is clearly contrary to law as was stated by the Chief Justice of NSW in the 2012 Gordon Wood appeal. All of this,” says Dr Moles, “in the total absence of any evidence about death, cause of death, nature of injuries – because there is no body – is extraordinary.
“The DPP then added that the fact that the body has disappeared also indicated homicide by a friend not a stranger, because if a stranger had killed Mr Chappell – why would that person have bothered to dispose of the body? This submission is contrary to logic and common sense…”
The Judge’s summing up:
Dr Moles also outlines basic flaws in the Judge’s summing up: “A circumstantial case [such as this was] is one where there are no eye-witnesses. In such a case, a person cannot be convicted unless the fact of their guilt is the only rational explanation of the circumstances. The law says that if there is a single rational explanation of the facts, other than the guilt of the accused, then the person cannot be convicted.
“This means that if there was a reasonable possibility that Mr Chappell just disappeared, of if he committed suicide or had an accident, or was killed by some other person, then the accused cannot be convicted. Each of those alternative explanations have to be excluded “beyond reasonable doubt” otherwise, any one of them would constitute a reasonable doubt and be inconsistent with a finding of guilt.”
There is also the feasible scenario that Mr Chappell was perhaps enticed or forced to leave the yacht by parties unknown, who boarded the yacht while Chappell was unaware, (working below decks) and kidnapped, murdered or held prisoner – in a yet to be discovered criminal act. (On October 14, 2010, the day before the jury was to hand down its verdict, there was a media release by the AFP about a major drug bust worth $160 million involving a similar yacht and the very same Queensland marina at which Four Winds had been purchased.)
Dr Moles says “the judge told the jury that Mr Chappell had not disappeared, and it must be accepted that he must be dead. He said that this could be inferred from the inactivity on his Medicare account and his bank accounts and the fact that he has not been in touch with anyone.” Dr Moles points out that these factors are not indicative of ‘death’, they are in fact key indicators of ‘disappeared’. If there had been any such activity, then he would have been found. To make such claims without any proper evidential basis is clearly contrary to the law as was stated by the Chief Justice of NSW in the Gordon Wood appeal.
“This possibility was improperly excluded.
“The judge said that Mr Chappell had not committed suicide because he had no reason to do so – he enjoyed his work and had projects to work on. His family thought he had no reason to do so.” Dr Moles makes the obvious point that “regrettably, there are many recorded cases where people do commit suicide unexpectedly, and to the complete surprise of their families. The judge also said that it is unlikely that Mr Chappell would have tied the extinguisher to himself and thrown himself overboard. But this is assumes that there is evidence to show that this is in fact how his body was disposed of. There is no evidence to support it.
“This possibility was improperly excluded.
“The judge stated that this was no accident. In support of this he mentioned the sabotage [cut pipes on the yacht].” As Dr Moles points out, proof of deliberate damage to the boat is not proof of deliberate damage – deliberate or otherwise – to the person of Mr Chappell. The two events could be entirely unconnected. There is nothing to exclude the possibility that Mr Chappell could have gone off somewhere (or slipped and hit his head and fell overboard) and later on some people came across the yacht unattended and caused damage to it. The judge also referred to the blood in the boat which tends to suggest that this was no accident.
“This possibility has been wrongly excluded.
“The judge then gave a lengthy explanation to suggest that if Mr Chappell were killed then the involvement of others could be excluded. He sought to demonstrate that the evidence supported the view that Ms Neill-Fraser had a motive to want to get rid of Mr Chappell. He said there was the money – which in fact turned out to be relatively little given the assets which she had available to her. He then mentioned the fact that the relationship between them was not good. In this connection he cited as witnesses, the person who had helped navigate the boat down from Queensland to Hobart; an electrician who had worked on the boat, and a diesel mechanic who worked on the boat engine. This is after a 19 year relationship. None of her long term friends or family were referred to by the judge to say that there was anything wrong.
“The diesel mechanic expressed the opinion that they seemed friendly enough but not particularly intimate. Of course, diesel mechanics are not suitably qualified experts on human relationships and the law does not allow them to express such opinions. It also begs the question as to what degree of intimacy people should display when talking to their diesel mechanic about how to fix the engine. Many might think that none at all is most appropriate, and that does not indicate any intention to want to do away with your partner.
“Of course, evidence relating to motive is entirely irrelevant if it has not been established that we have a murder. In this case, we don’t even know if we have a death, let alone one which has been deliberately caused.”
SYSTEMIC ERROR
Dr Moles is keen to add that the inadmissibility of some of the forensic evidence is indicative of serious systemic error. This means that similar errors could have been made in other cases. The need to recognise and deal with this error is urgent, because it could have affected – or could yet be involved – in many other cases.”
Dr Moles’ most recent book, Forensic Investigations, was being published in Toronto at the same time that the Neill-Fraser trial was taking place. A few months later, a judge of the Supreme Court of Canada was giving a lecture in Edinburgh. During the course of that lecture he stated, “In their study of miscarriages of justice in Britain, Canada and Australia, Professors Sangha, Roach and Moles identify recurring problems common to the experience of those jurisdictions. These include the use of preliminary tests as conclusive evidence [emphasis added]. Little did they know at the time that exactly that error was being repeated in the Neill-Fraser case. It was exactly that error which had occurred in the IRA bombing cases in the UK and in the Lindy Chamberlain case in Australia. It is the failure to learn from those experiences which most concerns Dr Moles.
Video clip: Chester Porter QC and Stuart Tipple (Chamberlain case) concerned about the safety of the conviction of Sue Neill-Fraser and calling for a review.
Court of Criminal Appeal (Tasmania)
In what Bill Rowlings, CEO, Civil Liberties Australia, describes as disturbingly flawed, prejudicial and inadequate findings, the Court of Criminal Appeal in 2012 rejected Ms Neill-Fraser’s appeal (except to reduce her sentence from 26 to 23 years, and the non-parole period from 18 to 13 years). “Just one example, at Clause 39, the report says: ‘The inflatable dinghy [of the Four Winds yacht from which Mr Chappell disappeared] had many areas that were positive to luminol, a screening test for blood but not a conclusive one.’ The Court of Criminal Appeal should have noted that there was no evidence from any forensic confirmatory testing that Mr Chappell’s blood was in the dinghy – where, according to the Crown, his bleeding body was placed and then dumped into the water.”
Adds Dr Moles: “The appeal court judge … referred to the fact that there was a substantial body of evidence that was probative of guilt. That was simply incorrect. There was in fact no credible evidence which was probative of the guilt of Ms Neill-Fraser.”
High Court
The High Court refused leave to appeal in a decision that also disappointed Dr Moles: “There are so many procedural and substantive errors in this case, that I’m confident the High Court would have overturned the conviction if it had accepted it for review.”
The application for special leave to appeal to the High Court in 2012 was solely related to the matter of DNA found on Four Winds, later matched to then homeless 16 year old Meaghan Vass.
“That application was refused as it was said that the application did not give rise to a question suitable to a grant of special leave as the applicant had not shown that she was denied an opportunity to produce evidence on “a point of substance”.
“Yet, Ms Vass gave very limited evidence at trial and as the High Court acknowledged, was asked “very, very few questions. Her evidence constitutes around 7 pages of a 1554 court transcript (not including sentencing comments) or 10 to 15 minutes of a three week trial. When it became apparent during the trial, after Ms Vass had given evidence, that not all relevant material had been disclosed by police, defence counsel sought to have Ms Vass recalled in light of the disclosed material given that she had lied to police, lied to Mara House (where records show she was staying) about her whereabouts on the evening in question, given a non-existent address and had no alibi for the relevant time due to poor memory issues. Ms Vass, then a juvenile, had refused to be interviewed by police and a statement had not been taken from her by police prior to trial.”
In fact, says Dr Moles, in the Fitzgerald decision handed down by the High Court last week (on August 13, 2014), it was held that the failure to consider a possible alternative explanation, based upon DNA and open on the evidence, was a major error in a circumstantial case and warranted the conviction being set aside.
Of course, not all Tasmanian lawyers and judges get it so wrong in murder cases – but even one such case is more than enough and some of these errors are of such fundamental nature we have reason to be concerned. A woman’s liberty has been taken as a result, her life destroyed, her family distraught. So too is Mr Chappell’s family, we can assume. And much of the public is deeply, deeply disturbed – and rightly so. 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.
* Dr Bob Moles, former professor of law, has spent 15 years investigating alleged miscarriages of justice going back over 40 years. He is the co-author of Forensic Investigations and Miscarriages of Justice, (Irwin Law, Toronto, 2010) among other books and papers. He advocated and helped the South Australian Parliament introduce legislation granting applicants a further right of review in cases such as that of Ms Neill-Fraser.
It was the first major change to the criminal appeal rights in Australia in 100 years. The change was introduced because the Australian Human Rights Commission had declared that the criminal appeal rights in all states failed to comply with international human rights obligations. That remains the position in Tasmania at this time.