Sue Neill-Fraser – failure of lawyers

By Andrew L. Urban

As Sue Neill-Fraser contemplates her fifth prison Christmas ‘feast’ at Hobart’s Risdon jail, we should take a moment from the celebrations to reflect on how Tasmania’s criminal system appears to have failed in her case, according to many, including eminent lawyers and legal experts. And it isn’t just Neill-Fraser who suffers: the case has profoundly undermined confidence in Tasmania’s criminal justice system.

If you’re not familiar with this case, I urge you to look it up (see some links below); in short, it’s an echo of the incompetence displayed in the police investigation into Azaria Chamberlain’s disappearance and the eventual trial & conviction of Lindy Chamberlain for her baby’s murder. Chamberlain was eventually acquitted, of course, but it took a very long time. Neill-Fraser will be 60 in March 2014; she doesn’t have as much time as did Lindy …

In short, Neill-Fraser was convicted of murdering her partner of 18 years, Bob Chappell, on board their yacht, Four Winds, moored in Sandy Bay, Hobart, on Australia Day 2009. Chappell’s body has never been found; the prosecution had no murder weapon to show the jury (so they invented one – see below). The motive put forward was also invented. In fact, there was no evidence at all, and the Coroner had not finished his inquest, so there was no evidence of his death even – which means there could be no rational conclusion that it was a ‘wrongful death’.

Arguably, Neill-Fraser’s case should never have got to court; the enthusiasm of the police overcame the absence of hard evidence. Once in court at trial, it was in the hands of lawyers, but they failed the criminal justice system and cost Neill-Fraser 23 years of her life.

The law states that in cases reliant exclusively on circumstantial evidence, the court can only accept a guilty verdict if that evidence leaves no possible alternative but that the accused committed the murder. No other scenarios must be possible. In this case, the court seems to have inverted that principle, as if meant the exact opposite. In effect, she had to try and prove her innocence.

Neill-Fraser murdering Chappell is the least plausible scenario to explain his disappearance. There is no physical evidence whatsoever of a murder having taken place on the yacht. She had no motive, she couldn’t have physically done any of what the prosecution speculated (especially alone) and she co-owned the yacht. And when accused by the prosecution that she hit him on the head with a wrench, she replied, “I’ve never hit anyone … let alone someone I love dearly.”

1 The prosecution claimed Neill-Fraser hit Chappell on the head with a heavy wrench while he was working below decks.
– No evidence was produced for this bit of speculation, yet the judge in his summing up mentioned it eight times.

2 The prosecution claimed Neill-Fraser winched the body up two decks and over the railings, into the boat’s dinghy, weighted the body with a fire extinguisher and then dumped it overboard somewhere in the Derwent River.
– No evidence was produced for any of this and no blood was found in the dinghy. Blood splatters found in the yacht were consistent with Chappell’s chronic nose bleeds (droplets). The presumptive luminol tests on the dinghy were positive, but there was no actual blood found. This is a direct echo of the Chamberlain case where the incriminating blood spray – luminol tested – in the family car turned out to be part of the manufacturing process.

3 The prosecution called a witness with a history of antagonism toward the accused (documented in a letter to police years earlier), who was negotiating with police over criminal charges he faced, and presented him as a credible, reliable witness who claimed Neill-Fraser had asked him to help kill Chappell 10 years earlier. Even the judge remarked on the witness’ reliability – but he didn’t warn the jury to minimise the value of his testimony.

4 Tasmania’s Court of Criminal Appeal overlooked many of the errors at trial – except for the reason for the original 26 year sentence, which included a penalty for Neill-Fraser hiding the body so effectively that it made it impossible and expensive to locate. That was said to be wrong at law – and it shows the mind-set in operation and it makes one question how many more cases has the Tasmanian criminal justice system got wrong.

With the swag of learned lawyers in court during a murder trial, one would have thought some of these glaring errors (from unfounded speculation to forensics) would have set off alarm bells. What a terrible failure.

Video clip: Chester Porter QC and Stuart Tipple (Chamberlain case) concerned about the safety of the conviction

Review: Shadow of Doubt – 80 minute documentary by Eve Ash revealing the flaws, Nominee, Best Feature Documentary, 2014 AFI|AACTA Awards

Interview with Eve Ash

 

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