By Andrew L. Urban
I may be unlearned in law, a lay man, but I don’t think I’m an intellectually lame man. I have been looking at the sentencing remarks in the controversial Sue Neill-Fraser case (about which I have written at great length) as a journalist. What strikes me about the sentencing remarks of Justice Blow (October 2010) is the apparent eagerness with which he has accepted the prosecution’s speculative and unproven case.
Here is a critical passage from the sentencing remarks, which goes a long way to reveal His Honour’s willingness to be satisfied beyond reasonable doubt on matters which are quite evidently in doubt.
“I am satisfied beyond reasonable doubt that Ms Neill-Fraser attacked Mr Chappell on board their yacht, the Four Winds, which was at its mooring off Marieville Esplanade, Sandy Bay. The attack occurred in either the saloon or the wheelhouse, out of public view, when the couple were alone. Mr Chappell probably died on board the yacht, but I cannot rule out the possibility that the attack left him deeply unconscious, and that drowning was the cause of death. 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. The evidence upon which I have based these findings includes evidence as to blood found on the Four Winds, blood found on a torch on the Four Winds, the state of the ropes and winches on the Four Winds on 27 January 2009, the absence of the fire extinguisher and of sections of carpet from the saloon of the vessel, the finding of the tender on the morning of 27 January, the scientific examination of the tender, DNA matching of samples from the blood on the yacht and Luminol positive areas of the tender with Mr Chappell’s DNA, and the evidence that Mr Chappell’s body was not found in the sections of the river searched by police divers.”
BLOW BY BLOW:
Blow: I am satisfied beyond reasonable doubt that Ms Neill-Fraser attacked Mr Chappell
Urban: On what evidence? None was produced in court. No weapon. No body. No Witness.
Blow: I cannot rule out the possibility that the attack left him deeply unconscious, and that drowning was the cause of death
Urban: Baseless speculation based on baseless speculation.
Blow: 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.
Urban: On what evidence? None was produced in court.
Blow: The evidence upon which I have based these findings includes evidence as to blood found on the Four Winds
Urban: Blood droplets consistent with Chappell’s frequent and chronic nosebleeds, as was explained in court.
Blow: … the state of the ropes and winches on the Four Winds on 27 January 2009
Urban: There was no evidence produced as to the state of the ropes when the yacht was first boarded by police, and none to prove that the ropes and winches were used as His Honour states; they were out of their normal positions in such a way as to suggest they were moved; that is all.
Blow: … the absence of the fire extinguisher
Urban: The absence of the fire extinguisher does not by itself prove that it was used to weigh the body down and is speculation reliant on the sum total of the prosecution’s speculation; besides, one witness, a mechanic who had worked on the boat, gave evidence that it may not have been on board at the time; another witness (an ex-Wormald employee) said she did not see it on board.
Blow: … the scientific examination of the tender, DNA matching of samples from the blood on the yacht and Luminol positive areas of the tender with Mr Chappell’s DNA
Urban: This is either a confused or a misleading statement, despite the words ‘scientific examination’: a) the presumptive (preliminary) luminol test was positive, but the confirmatory test proved there was no blood in the dinghy – not Chappell’s nor anyone else’s; b) Chappell’s DNA being present on his own dinghy is not proof that Neill-Fraser put his body in it.
Blow: …and the evidence that Mr Chappell’s body was not found in the sections of the river searched by police divers
Urban: This is totally unsustainable reasoning; His Honour calls the absence of a body evidence that the accused dumped the body in deep water ‘somewhere’.
In further sentencing remarks, Justice Blow said:
“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.”
Which he did, in the following terms:
“Susan Blyth Neill-Fraser, I convict you and sentence you to twenty-six years’ imprisonment with effect from 20 August 2009. You will not be eligible for parole until you have served eighteen years of this sentence.”
Neill-Fraser appealed against the conviction and against the severity of the sentence, and while the Court of Criminal Appeal (March 2012) dismissed all the grounds against the conviction (another critical article is needed on that matter) it upheld that His Honour Justice Blow erred in applying his reasoning to the severity of the sentence and reduced Neill-Fraser’s sentence to 23 years and the non parole period to 13 years.
In his remarks, appeal judge Porter J very politely said “there is a need for caution about taking post offence conduct into account when assessing the objective circumstances of an offence. In particular it is well-settled that while a plea of guilty might be a mitigating factor, a plea of not guilty is not an aggravating factor. He used quotes from other judgements to make his point without having to reprimand the learned judge directly. “It is quite improper to use language which may convey that an accused is being sentenced because he pleaded not guilty or he has run his defence in a particular way,” he said quoting R v Harper (1968). And: “It is impermissible to increase the sentence in order to mark the court’s disapproval …” quoting R v Gray (1977).
Given that Neill-Fraser had pleaded not guilty, that she denied every accusation and charge against her, Justice Blow’s aggravated sentencing might be considered vindictive as well as “impermissible”.
Even a disinterested observer would be forgiven for seeing this case as an example where the defendant is asked to prove their innocence against the Crown’s hypothetical and unproven speculation.
But learned barristers and eminent lawyers have also expressed grave concerns about this case; two of them are Chester Porter QC and Stuart Tipple, seen in this clip speaking at a public screening in Sydney of Eve Ash’s investigative documentary, Shadow of Doubt, revealing many of the flaws and errors in the investigation and trial.
The Chief Justice of England, Lord Igor Judge said recently on a visit to Sydney, “..the prospect of an innocent person being convicted of a serious crime represents a catastrophic failure of the legal system.”
It seems likely that the conviction of Sue Neill-Fraser is just such a catastrophe – and Tasmania’s Attorney General is the only one who can do anything about it. So far, mid January 2014, he has done nothing, despite being advised that the conviction is unsafe at law on several grounds. He certainly can’t rely on the judge’s sentencing for comfort.
NB: Justice Blow was appointed Chief Justice of the Supreme Court of Tasmania on April 8, 2013.