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EDITORIAL 27/2/2014: MURDER BY THE PROSECUTION – CLUES IN A FILM

By Andrew L. Urban

Sue Neill-Fraser will celebrate – if that’s the word - her 60th birthday next Monday, March 3, 2014 inside Hobart’s Risdon prison, shut away from her daughters and grandchildren, serving a 23 year sentence for the murder of her partner Bob Chappell, which she vehemently denies. The case is destined to be a cause célèbre because, in the absence of hard evidence, the prosecutor literally manufactured a murder scenario by speculation, unsupported by any physical evidence.

Public outrage and legal concern culminated in a public rally on the 2014 Australia Day weekend (5th anniversary of the event), with calls for an enquiry from concerned citizens and Independent MP Andrew Wilkie – (see Sky News report on YouTube – 2:30 mins)
It’s been almost three and half years since Neill-Fraser was tried and convicted (October 2010); why has it taken this long for public outrage to erupt?

The trigger seems to have been the galvanising force of the investigative documentary about the case,  Shadow of Doubt (2014 AFI|AACTA Best Feature Documentary Award nominee), by Melbourne psychologist and filmmaker, Eve Ash, which had its premiere screening at Hobart’s State Cinema simultaneously with its broadcast on FOXTEL on July 31, 2013. (And rebroadcast over the 2014 Australia Day week.)

Shadow of Doubt was also screened for invited guests, eminent lawyers and the public in Sydney, Melbourne and Canberra during October and November 2013.

Neill-Fraser was convicted 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. Neill-Fraser had taken the dinghy ashore, Chappell stayed on board doing maintenance. 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.

The DPP, Mr Tim Ellis, speculated that Neill-Fraser had returned to the yacht later that day and murdered Chappell with a wrench (no wrench was produced in evidence yet it was mentioned 27 times, and there is no body to check for injuries). He went on to speculate that afterwards, she used a latex glove to ‘cover up’ what she had done. But the DNA that was found in the glove, on which Mr Ellis relied to convince the jury of this speculation, actually belonged to Tim Chappell, Bob’s son. It was well after the trial - well after the jury had delivered their verdict - that Mr Ellis admitted this mistake.

He also speculated that after killing Chappell with a wrench, Neill-Fraser winched his body up two decks, over the side, into the dinghy, and dumped the body somewhere in the river, weighed down by a fire extinguisher. There was no physical evidence offered to the jury about this chain of speculative events. 

The jury were encouraged to believe (with the help of graphic imagery) that a large blue, luminol-induced stain in the Four Winds’ dinghy suggested a large amount of blood; but conclusive testing showed there was no blood in the dinghy and this was played down.

In what Bill Rowlings, CEO, Civil Liberties Australia, describes as disturbingly flawed, prejudicial and inadequate findings, The Court of Criminal Appeal in 2012 rejected her original 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 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 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.”

The court got it wrong, says legal commentator Dr Bob 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.” ( 4/12/13 Tasmaniantimes.com)

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. In Australia, without a body such as Britain’s Criminal Cases Review Commission, A Petition of Mercy is Neill-Fraser’s one last avenue to have her case re-examined. Britain’s CCRC has referred hundreds of cases back to the Court of Appeal which has resulted in more than 350 convictions being overturned. Mistakes happen, as many lawyers and judges agree; the criminal justice system should be eager to correct them when they do.”

Neill-Fraser’s legal team is now preparing a Petition of Mercy – her last avenue to take her conviction back to the Court of Criminal Appeal – and hope for a better result than last time.

Within 24 hours of Chappell’s disappearance, Phillip Triffett went to the police claiming that Neill-Fraser had wanted him to kill her own brother Patrick, a decade earlier. (Not that he reported it at the time.)

In court, Judge Alan Blow found Triffett “did not always tell the truth”. However, this one piece of ‘information’ of dubious value propelled police to focus on Neill-Fraser only. In court, Triffett’s evidence was referred to by the DPP, Mr Tim Ellis, as possibly the ‘sealer’ of the case.

But Triffett’s account was repudiated by Neill-Fraser, who had reported to Bellerive police in 2001 her concerns for her own and Chappell’s safety after a serious falling out with Triffett. That was prompted by an earlier event. She related in 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.

In what legal circles is a well known affliction called ‘tunnel vision’, Tasmania Police had convinced themselves that Neill-Fraser killed Chappell, then proceeded to convince the Office of the Director of Public Prosecutions, who went on to convince the judge and jury at a trial that one Tasmanian observer has described as ‘outrageous’.

The Crown case was built on circumstantial evidence, but calling much of what was presented ‘evidence’ seems grandiose; a better word might be “guesswork”, to quote Chester Porter QC, who was Counsel Assisting the Morling Royal Commission into the Lindy Chamberlain miscarriage of justice and who – after studying the Neill-Fraser case - believes the conviction is unsafe. 

See Chester Porter QC and Stuart Tipple (Chamberlains’ lawyer) speak out (2 mins)

And then there is the extraordinary matter of a DNA sample taken from the deck of the Four Winds in the days after Chappell’s disappearance. It wasn’t until March 15, 2010, seven months after Neill-Fraser’s arrest and incarceration that the match was made as a result of a DNA database search: it was the DNA of a homeless girl, Meaghan Vass, then 15, whose DNA was on the database following her arrest on February 18, 2010 for an unrelated offence. The large volume DNA found on the yacht cannot be explained by her evidence or account to police and her possible connection with other homeless people, which was never investigated.

Forensic Scientist, Carl Grosser stated to Detective Sinnitt on March 18, 2010: “Given the strong DNA profile that we obtained from this swab I’d suggest that this is indicative of the presence of a relatively large amount of DNA, which is more likely to come from body fluids (blood, saliva etc.) than a simple contact/touching event.”

But the prosecution dismissed the presence of a stranger’s DNA at what police regarded as the scene of the crime; murder, no less. The DPP argued in his closing address that the issue of Meaghan Vass was one of the “two big red herrings” raised in the trial.

At the protest rally, the 5th anniversary of Chappell’s disappearance, Wilkie called on the Tasmanian Government to “get a backbone” and call for an enquiry. Two days earlier, the Coroner, Mr Glenn Hay, released his Findings. 

He reports on the large volume of ‘assertions’ that he has received from Neill-Fraser’s legal representative, Barbara Etter APM (a former CEO of the Tasmanian Integrity Commission) to convince him to complete his enquiries into the case. He says that those ‘assertions’ “seek to re-agitate issues more properly the possible subject of grounds of appeal in the criminal proceedings,” and remarks that they have “very serious implications and on the face of them call into question the administration of justice in and about the criminal trial of Ms Neill-Fraser.”

Indeed, so does the 80 minute investigative documentary Shadow of Doubt, which has given Sue Neill-Fraser a voice. Let’s hope the Attorneys General around Australia are listening and will move to establish a Right to Appeal law (as introduced in SA last year) when they meet in April to bring our legal systems into the 21st century. Any of them wishing to see Shadow of Doubt, just ask:
andrew@urbancinefile.com.au 


(The then Director of Public Prosecutions, Mr Tim Ellis, was given an opportunity to comment on the key elements of this article that relate to his prosecution of the case; he did not do so. Mr Ellis is currently suspended from his role as DPP on full entitlements. He is facing a charge of causing death by negligent driving: he denies the charge. A magistrate’s hearing is set for March 2014. The case involves the death of a woman in a collision in March 2013. It is alleged Mr Ellis was the driver of a car which allegedly crossed to the wrong side of the Midland Highway and ran head on into a car driven by Natalia Pearn, 27.)

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