Strictly legal – seminar provides lesson in law for judge

The President of the Law Society and the Attorney-General of Tasmania must provide legal references if they disagree with the points raised by Dr BOB MOLES* in his address at the seminar, Lifting the Lid on Miscarriages of Justice – The Old Woolstore, Hobart, 24 November, 2022 – The case of Susan Neill-Fraser or else concede that her conviction must be set aside.

A circumstantial case is one where there are no direct evidence or eye-witnesses to the events in question. The surrounding circumstances then provide the only basis for the drawing of appropriate inferences. In such cases there are special rules which apply. In this case the judge correctly observed that in a circumstantial case the conclusion of guilt has to be the only rational conclusion open on the evidence that the jury accepts.

Justice (now Chief Justice) Blow

If there is ‘any rational hypothesis’ or ‘any sensible theory’ consistent with innocence, then Neill-Fraser had to be acquitted. The judge explained how obvious alternative explanations relating to disappearance, accident and suicide could be excluded. If he was mistaken in respect of any one of those, then it would mean that a rational explanation, consistent with the innocence of Ms Neill-Fraser, was still open on the facts and the conviction should therefore be overturned.

Disappearance
The judge dealt with the possibility of disappearance by stating, ‘there is evidence that tends to establish that Mr Chappell is dead and gone’. However, the matters which the judge referred to do not provide ‘evidence’ for it. He said there is, ‘the evidence from the family of not having heard from him’. That, of course, is what they would also say if in fact Mr Chappell had just disappeared.

The judge then observed that police forces, Medibank and Medicare have revealed ‘no sign of him still being alive’. In fact, the underlying observations are that there are no confirmed sightings of him and no activity by him or attributed to him. This is what one finds in all cases where people have ‘disappeared’. In effect, the judge is citing evidence of ‘disappearance’ as if it were ‘proof of death’. This is clearly an invalid and inappropriate inference, and would collapse the distinction between a person who has disappeared and one who has died. The National Missing Persons Coordination Centre states that each year 38,000 people are reported missing in Australia. While 95.5 percent of people are found within a short period of time, there remains approximately 2,000 long term missing persons; those who have been missing for more than three months. It would be irrational to infer that they were all dead because they had not made bank or Medicare transactions. There is no principle by which one can discriminate between the missing and the dead apart from the discovery of the body or evidence of it.

None of this was mentioned in the course of the Neill-Fraser trial to assist the jurors to obtain a sense of perspective in relation to these issues.

Accident
The judge stated in his summing up to the jury, ‘[s]o there’s also evidence that tends to suggest that what happened was not an accident.’ However, the factors which he cited failed to support that conclusion. The judge stated, ‘the evidence that the Four Winds was sabotaged tend to suggest there was no accident’.

Clearly, proof of damage to the boat is not proof of damage to the person of Mr Chappell. Indeed, the two events could be entirely unconnected. There is nothing to exclude the possibility that Mr Chappell could have gone off somewhere and later on some people came across the yacht and being unattended, caused damage to it.

The judge also referred to the fact that, ‘[t]he blood in the yacht tends to suggest that there was – that there was no accident.’ This reference by the judge to ‘the blood’ emphasises to the jury the significance of the various (and inconclusive) test results which were inadmissible.

Suicide
The judge also stated, ‘there’s evidence that tends to suggest that Mr Chappell didn’t commit suicide.’ He referred to Mr Chappell’s son Tim who said that Bob Chappell wasn’t depressed or suicidal. However, such views, even if correct, cannot be said to be contra-indicative of suicide. Tim was not particularly close to his father, and even if he were, there are countless examples of people who commit suicide in circumstances which come as a great surprise to their family or friends.

The judge also noted that Tim said that his father was ‘interested in his work, regarded it as important’. Again, sadly, many people in similar situations do commit suicide. Indeed, much was made throughout this trial, as we saw earlier, of the frailty of Mr Chappell as a factor enabling Neill-Fraser to bludgeon him to death. In his study on suicide, Riaz Hassan noted that suicide amongst older people is associated with declining health and an increasing sense of dependence. As the authors of a recent study on suicide stated, ‘the reasons for a suicide are never really knowable’. They point out that there have been some 30,000 academic papers on suicide published between 1980 and 2011. They cover complex issues in fields such as psychiatry, psychology, genetics, neuroscience and sociology.

None of this was referred to in the evidence at this trial. If one is to conclude from observations about suicidal ideation and ‘interest in work’ to a conclusion about the probable occurrence of a suicide in a specific case ‘beyond reasonable doubt’, then one would have to demonstrate that the conclusion is not only compelling but also consistent with the medical, psychological and sociological studies in this area.

Regrettably, the judge had no expert advice on this topic to assist him, and the best that one could say is that his own intuitive assumptions in this area are not a satisfactory legal basis upon which to encourage a jury to convict someone of murder.

The judge added, ‘and if he did commit suicide it’s hardly likely that he would have scuttled the yacht’. The basis for this probability assessment by the judge is unarticulated, but clearly presupposes principles concerning suicidal behaviours. It represents another issue where the judge is not simply commenting upon the evidence for the assistance of the jury, but is introducing a form of ‘junk’ expert evidence in the guise of ‘comment’, which is clearly unacceptable. If a person was in a frame of mind to inflict life threatening damage to oneself, then why would they not be likely to inflict damage upon their immediate physical environment? A suicidal person might well burn their house down or drive their car off the cliff.

However, to suggest (as the judge does) that a person who is willing to kill oneself, would not be willing to cause physical damage to some inanimate object such as a boat appears to be a non-sequitur.

The judge added that suicide would be unlikely because he wouldn’t have, ‘tied the fire extinguisher to himself and disappeared without a trace.’ This is unacceptable. The judge is not entitled in summing up to the jury to make assertions of fact which are unsupported by any evidence. It is the role of the jury to determine what the facts are. There is no evidence to suggest that Mr Chappell and the fire extinguisher were united in some final, fatal embrace. Neither Mr Chappell nor the fire extinguisher have been located. For the judge to put this proposition to the jury as if it were an established fact is not only prejudicial but invites them to engage in impermissible reasoning and to wrongly exclude the possibility of suicide.

As the judge explained in his earlier remarks to the jury ‘basing your verdict on the evidence means that you mustn’t use guesswork or speculation in arriving at your verdict.’ This is precisely what the judge himself has done. If it could be said that these inappropriate statements by the judge might have influenced the jury in arriving at their verdict, then as with earlier issues, the verdict must be set aside.

*Dr Bob Moles is Adjunct Associate Professor, Flinders University, South Australia and author of several books on miscarriages of justice.

COMMENT
Never mind all the argy-bargy about Meaghan Vass and her DNA, never mind the prejudicial behaviour of the prosecutor, the flagrant incompetence of defence counsel, the use of an unreliable criminal as a key witness or the absence of actual evidence in this case, this sobering analysis highlights just one aspect of the Sue Neill-Fraser conviction that brings shame on Tasmania’s legal system, thanks to a judge careless with the rule of law.
Andrew L. Urban

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