By Andrew L. Urban.
First published in The Australian, 25/3/2015 as “Justice cast to the four winds” (p. 11)
Sue Neill-Fraser was convicted of murder in 2010, after her partner of 18 years, Bob Chappell, disappeared from their jointly owned yacht, Four Winds, anchored off Sandy Bay in Hobart on Australia Day 2009. In the afternoon, Neill-Fraser had taken the dinghy ashore, Chappell stayed on board doing maintenance work. At dawn the next morning the yacht was reported sinking slowly, with no sign of Chappell. What appeared to be a clumsy attempt at sabotage had caused the Four Winds to take on water. It was a mystery.
Tasmania Police soon fixated on Neill-Fraser, after a shady character (on pending charges) with a history of animosity towards the couple accused Neill-Fraser of having invited him to help kill her brother as well as Chappell, some 11 years earlier. More on that later. Neill-Fraser, who had no criminal record or history of violence, denied it. Not to be deterred, the police stayed focused on Neill-Fraser. In the absence of hard evidence – not to mention the body – they were scratching for circumstantial evidence.
Neill-Fraser was arrested and charged with murder on 20/8/2009 – and was denied bail.
Legal academic and author on miscarriages of justice Dr Bob Moles explains how the law stands in circumstantial cases: “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.”
There is the possibility 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 captive – in a yet to be discovered criminal act.
Continues Dr Moles: “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.”
This alone, says Dr Moles, warrants the conviction to be set aside. But there is more, as they say:
The following excerpts from the transcripts show that:
– In the absence of the jury, the DPP admits to the judge that he ‘never believed’ there was any of Chappell’s blood in the Four Winds dinghy, but talks to the jury about the blood testing anyway.
– In the absence of the jury, the DPP admits to the judge that he has no evidence to support his speculation that a fire extinguisher was used to weigh down Chappell’s body, but puts it to the jury anyway – and the judge refers to it in his summing up as well as in the sentencing, as if it were proven evidence.
– In his closing address to the jury, the DPP repeats his speculation about how the murder was committed by Neill-Fraser but admits he doesn’t really know what was the murder weapon he alleges she used. (Without the body, no injuries could be established hence no weapon/s could be ascertained.)
There are several other problems with the trial, including forensic evidence that was led which is not admissible and the failure to properly investigate the DNA of a stranger that was found on the yacht but not matched with the stranger until later.
Although at first the police did not see anything on board that would suggest that the disappearance was a murder, their investigation eventually focused on Neill-Fraser, a mild mannered middle class Hobart woman with two grown up daughters. She was co-owner of the Four Winds yacht with Chappell and they had recently taken delivery of it from Queensland.
Within 24 hours of Chappell’s disappearance, a local man, Phillip Triffett went to the police claiming that Neill-Fraser had wanted him to kill her own brother Patrick as well as Chappell, more than a decade earlier. Neill-Fraser denies this vehemently. (He had not reported these claims to police at the time.)
There was a history of animosity between Triffett and Neill-Fraser; she had reported to Bellerive police in 2001 her concerns for her own and Chappell’s safety after a serious falling out with Triffett. Triffett knew of the letter and may have been concerned he would be a suspect in the investigation.
Neill-Fraser told the court that Maria Hanson, then Triffett’s partner, told her “that Phillip had burnt down her house for the insurance and also that he’d shot a young man when he was very young at the Lakes and hidden the body and followed this up saying, ‘If you go to the police you’ve got a very overgrown back garden and Phillip’s revengeful and he could hide there with a gun, and you’ve got to think of Emma and Sarah’.” (Neill-Fraser’s daughters.)
The police did not disclose before the trial that Triffett had made an approach to them asking if his evidence against Neill-Fraser would be helpful in his own matters due to go to court. It only became known during the trial through an anonymous caller who alerted defence counsel.
The following are extracts from the trial transcript; legal observers, including Dr Bob Moles, say these are just some of the elements that undermine the safety of the guilty verdict.
DPP Ellis speculates about the murder weapon/s but does not produce any in court. Prosecution speculation without evidence is in clear breach of legal rules and inadmissible as was stated by the Chief Justice of NSW in the Gordon Wood appeal, but the judge does not intervene.
CT 1297 DPP ELLIS
It was a wrench, wasn’t it, or a similar sort of tool with which you struck Mr Chappell from behind and killed him.
NEILL-FRASER: Mr Ellis I have never struck anybody, let alone somebody I loved dearly.
DPP Ellis pursues and embellishes his speculation about the method of the murder and admitting not knowing what the murder weapon in his speculative scenario might have been – but keen to convince the jury there was one.
CT 1381 DPP ELLIS:
You picked up something and struck him intending to kill him and killing him?
this is just not true.
CT 1392 DPP ELLIS CLOSING
Anger, bang. Maybe once, maybe twice. But here comes the – here is perhaps the significance of there being no body found. Why, if this is a complete stranger to Mr Chappell and a complete stranger to the boat, would there be no body left on board? That doesn’t make sense, does it. But if in fact it was someone who was closely connected to the boat, closely connected to Mr Chappell, and who would be able to be behind him without raising his attention because they’re known to be in that space, where there’s only one way in.
She’s walking backwards and forwards and delivers blow – a blow or blows, or maybe stabs him with a screwdriver, I don’t know…he doesn’t look round, and so the body doesn’t have any marks of what you’d expect if someone had come down there, a stranger, intent on doing him harm, the body I suggest would have marks consistent only with being delivered by someone who he knew to be there, who he knew and expected to be behind him.
In the absence of the jury, The DPP admits to the judge that he has no evidence to support his speculation that Neill-Fraser weighed down Chappell’s body with a fire extinguisher before disposing of it in the water.
P 14 SUBMISSIONS – JURY ABSENT – HIS HONOUR to DPP ELLIS, 21/9/2010
Can I just ask you about one small point? I haven’t yet got my head around every aspect of the Crown case. What is the evidence that tends to suggest – that the Crown says tends to suggest a weighing down with the fire extinguisher? Is it simply that the fire extinguisher has gone and Mr Chappell has gone, or is there more than that?
MR ELLIS SC:
No, there’s not – there’s not more than that.
In his summing up, His Honour the trial judge asserts that Chappell must be dead, failing to allow for accident, suicide or any other possibility. “To make such claims without any proper evidential basis is clearly contrary to the law as was [also] stated by the Chief Justice of NSW in the Gordon Wood appeal,” says Dr Moles.
CT 1507 HIS HONOUR SUMMING UP, 14/10/2010
… it seems to me that you can fairly readily conclude that Mr Chappell has died.
So there’s also evidence that tends to suggest that what happened was not an accident. All the evidence that the Four Winds was sabotaged tend to suggest there was no accident. The blood in the yacht tends to suggest that there was – that there was no accident.
There’s evidence that tends to suggest that Mr Chappell didn’t commit suicide. Tim Chappell, for example at page 119 of the transcript, said that he wasn’t depressed or suicidal. He – the evidence was that he was interested in his work, regarded it as important, and if he did commit suicide it’s hardly likely that he would have scuttled the yacht and tied the fire extinguisher to himself and disappeared without a trace.
The – there’s evidence that tends to suggest that Mr Chappell’s body was winched out of the – winched up onto the deck and taken away and dropped in the unsearched deeper waters of the River Derwent.
DPP Ellis talking to the jury about Chappell’s blood and DNA found by forensic testing on the dinghy (Chappell’s own dinghy, where traces of his DNA would not be unremarkable).
CT 71 ELLIS – OPENING ADDRESS TO JURY, 21/9/2010
But the tender itself was also subjected to a screening test for blood called luminol, and what happens with luminol is you put it – you put it on objects where there might have been blood and turn off the lights and it gets lum – it goes luminous in the presence of blood, and so that reacted quite strongly, the tender and the inside of the tender for the presence of blood, and swabs taken from the tender were found to match, with a high degree of probability, Mr Chappell’s DNA.
But on the other hand another screening agent for blood taken on that tender showed negative and one of the forensic scientists looked under the microscope to try and find some – what they look for is red/brown indications of blood and couldn’t find any, so some indications of blood, his DNA, but others – others, no.
DPP Ellis explaining to the judge (in the absence of the jury) that he never believed there was any blood in the dinghy.
CT 1486 HIS HONOUR, COUNSEL, JURY ABSENT – SUBMISSIONS, PRIOR TO SUMMING UP, 13/10/2010
MR ELLIS SC: The next point is, it was attributed to me that I said it was Mr Chappell’s blood in the dinghy. Now I don’t believe I did.
MR GUNSON SC: Yes, you did.
MR ELLIS SC: Okay – I don’t know why I’d say it
HIS HONOUR: – Well – -
MR ELLIS SC: – because I’ve never believed it.
HIS HONOUR: In opening.
MR GUNSON SC: Yeah.
MR ELLIS SC: Oh in opening –
MR GUNSON SC: Yes, in opening.
MR ELLIS SC: Oh okay, I abandon that, if I said it in opening.
HIS HONOUR: All right. Well I’ll do nothing about that point. What’s the next point?
(His Honour indeed did nothing about this point, not even telling the jury.)
When sentencing Neill-Fraser, His Honour stated that in his view her disposal of the body was an aggravating factor – and increased the sentence he imposed on her – even though no evidence had been put to support any such speculation. He even refers to the fire extinguisher, despite having been told by the DPP that there was no evidence of its use, only its absence (the court heard some doubt about that, even).
CT 1565 SENTENCING, HIS HONOUR, 18/10/2010
“I am satisfied beyond reasonable doubt that Ms Neill-Fraser used the ropes and winches on the yacht to lift Mr Chappell’s body onto the deck; that she manoeuvred his body into the yacht’s tender; that she attached an old-fashioned fire extinguisher weighing about 14 kilograms to his body; that she travelled away from the Four Winds in the tender with the body for some distance; and that she dumped the body in deep water somewhere in the river.
As a result of the means that she adopted to kill Mr Chappell and dispose of his body, Ms Neill-Fraser made it necessary for the police to undertake a very time-consuming investigation. It involved a large number of officers making thorough inquiries over a long period. In my view the steps that Ms Neill-Fraser took on the night in question to conceal her crime, and the inconvenience and expense of the investigation that she made necessary, are aggravating factors that I should take into account.”
Some might wonder how it is possible that these (and the other errors at trial) went unnoticed by the various lawyers present, two for the defence, two for the prosecution, as well as the judge. It is a pertinent question and one not fully explained by the failure of the appeal that was lodged.
On the 5th and perhaps key ground of the appeal, the Court of Criminal Appeal (CCA) found that: “Concerning his Honour’s use of a wrench in the examples he gave to the jury, it would have been obvious to the jury that examples were being given and that the judge was not endorsing the theory raised by counsel for the Crown.”
“No miscarriage of justice has been demonstrated in support of the ground.”
In his Summing Up, His Honour had said (in part): “And it’s murder if the type of bodily harm that is intended is likely to cause death in the circumstances and the killer knows that. So let’s take the example of hitting a man on the head with a wrench. If an assailant who has no wish to kill the victim hits the victim on the head with a wrench very hard you might think that that’s intended – you might be satisfied beyond reasonable doubt that that’s intended to cause bodily harm and that that’s the sort of bodily harm that’s likely to cause death.”
As Bill Rowlings, CEO of Civil Liberties Australia points out, “If a judge chooses to give examples of a murder weapon precisely identical to the murder weapon hypothesized by the Crown prosecutor, it is an obvious endorsement of that hypothesis as a clear possibility as a preferential choice over another possibility – the judge did not choose a hammer or frying pan, for example, as a theoretical weapon.”
A hypothetical murder, a theoretical weapon, non-existent evidence and a guilty verdict safe from appeal …
Neill-Fraser’s request for leave to appeal (restricted as it is to points of law) to the High Court was refused. The request was based on the fact that the prosecution failed to recall Meaghan Vass for fuller cross examination, a then homeless 16 year old, whose DNA had been found on the yacht and only cursorily questioned during the trial, when she claimed she had never been on the boat. The DPP, Tim Ellis advised the High Court that her DNA was a secondary or transfer sample, perhaps left there from the bottom of a policeman’s shoe. DPP Tim Ellis said: “The core evidence was … she [the homeless girl] was not on the boat”.
But in August 2014, a new report from the Victorian Police Forensic Services Department, obtained by Neill-Fraser’s current lawyer Barbara Etter APM, confirms it to be of primary transfer in nature, contradicting the evidence she gave at trial.
Neill-Fraser remains in jail, wheelchair-bound (due to deteriorating mobility symptoms), her only hope resting in new Right of Appeal legislation that is now being finalised. Attorney General Vanessa Goodwin stated on March 5 that “a draft bill will be released for public consultation” by the end of this month (March 2015). Like the South Australian Bill passed in 2013, this Bill intends to provide a further right to appeal for those who believe their convictions are unsafe, Sue Neill-Fraser is at the front of the queue.
Andrew Rule in the Sunday Herald Sun, 5/4/2015: “Talk all you like but Susan’s lies clinch it”
Andrew Rule’s sneering article re the Sue Neill-Fraser case in the Sunday Herald Sun is notable for reflecting the tunnel vision of TasPol in its investigation, as if Rule worked for the police, not the Herald Sun. The lack of journalistic objectivity is emphasised by his desire to denigrate those who wish to see a court of appeal review the case; he calls them “earnest legal wonks, cynical opportunists, noisy ratbags and conspiracy theorists” – indicative of his failure to mount an argument against such a review. Insults are not arguments.
He also writes: “Just last week a serious newspaper devoted a full page to the proposition that the poor little “rich girl” got a bum steer from a sloppy legal system and unaccountably hostile police.” That newspaper is The Australian and I am the author of that article; I did not use any of the terms he mentions, while Rule did not address any of the matters of legal error dealt with in the article.
‘Earnest legal wonks’ presumably include those who have expressed grave concerns about the safety of the conviction eminent QCs Chester Porter and Robert Richter, the Chamberlains’ lawyer Stuart Tipple as well as Australia’s pre-eminent authority on miscarriages of justice, Dr Bob Moles. I can’t imagine who he lists in the other categories.
Rule’s allegation that Sue Neill-Fraser searched the Internet immediately following Chappell’s disappearance wanting to know how long before a missing person could legally be declared dead was never raised in court for the good reason that it is not based on evidence.
Rule’s grasp of the legal basics also leaves much to be desired. He states: “There are other lies and inconsistencies that seem to outweigh the highly technical “evidence” being claimed as grounds for a retrial or for her release. Leaving aside the far-fetched and unlikely, defence activists hang their hat on the fact there’s no body and no smoking gun. They say if any other explanation for Chappell’s disappearance is even vaguely conceivable, the prisoner deserves the benefit of the doubt.”
There is not a single element in those three sentences that bears any relationship to the facts. His first sentence seems to refer to forensic evidence that has been shown to be inadmissible and incorrect. Those he calls legal wonks, defence activists and conspiracy theorists are united in wanting a full judicial review of the case, as foreshadowed by the proposed new legislation released last week by the Tasmanian Attorney General and currently under public discussion. As for defence activists ‘hanging their hat on the absence of a body’, perhaps Rule could explain how the cause of death could be established without one. The last sentence confirms Rule’s ignorance of the law, given that it is not about what ‘they say’ but what the law says.
Rule’s article does nothing for the public interest in this matter, but does damage the reputation of professional journalism.