Sue Neill-Fraser prosecutor Ellis replies to journalist

Andrew L. Urban

Tim Ellis SC, then Tasmania’s DPP and the man who prosecuted Sue Neill-Fraser in 2010 for murder, addressed several aspects of his prosecution – in public. It’s rare that a prosecutor speaks in detail publicly about one of his cases – especially one that is contentious. It is instructive to revisit parts of that email exchange now, three years later.

In Tasmanian Times, May 5, 2015, Tim Ellis published an email exchange between journalist Susan Horburgh of the Australian Women’s Weekly and himself, in preparation for an article she was writing about the Sue Neill-Fraser case.  (It was published on July 27, 2015.) Horsburgh put some questions to Ellis; here is an extract from their exchange, together with relevant extracts from the trial transcript.

WHAT WRENCH THEORY?
Horsburgh, April 28, 2015: What was your wrench theory based on?
Ellis, May 5, 2015: I am disturbed that you use the phrase “your wrench theory “. I never advanced any such “theory”. I will refer you to the transcript, the availability of which I have previously alerted you to, but first I point out that it was never the Crown case and it was not and is not essential to the valid conviction of Ms Neill-Fraser that the prosecution produce a murder weapon or prove a manner of death.

FROM TRANSCRIPT: ELLIS CROSS EXAMINING NEILL-FRASER
It was a wrench, wasn’t it, or a similar sort of tool with which you struck Mr Chappell from behind and killed him
FROM TRANSCRIPT: CLOSING ADDRESS BY ELLIS
Now I’ve suggested that wrenches have been on her mind as a sort of implement that she used to kill Mr Chappell.
FROM TRANSCRIPT: CLOSING ADDRESS BY GUNSON (defence)
He pressed a theory (about operating the EPIRB) …. The same (lack of evidence) with the murder methodology that Mr Ellis said. He came out with things like:
You crept up behind him with a wrench and you banged him on the head with a wrench or something like that.
She denied that. There’s no evidence about that. So her answer’s the
evidence: No, I didn’t do it.

FROM TRANSCRIPT: HIS HONOUR SUMMING UP
… you’d need to be satisfied beyond reasonable doubt that the physical act or acts by which she killed Mr Chappell were voluntary and intentional acts. So, for example, if she was walking through the boat and tripped and fell and happened to be carrying a terribly heavy wrench which hit him on the back of the head causing death, that wouldn’t be a voluntary and intentional act.

Mr Ellis in cross-examining Ms Neill-Fraser put to her a series of propositions, a scenario about killing Mr Chappell with a wrench, attacking him from behind.

So let’s take the example of hitting a man on the head with a wrench.

So if an assailant hits someone on the head with a wrench, for example, and if that sort of bodily harm that’s intended, a head injury caused with a wrench, is something that could well cause death and the assailant knows that that’s the sort of bodily harm that could well cause death then that’s murder. For example, if the assailant thinks, ‘I don’t care whether he dies or not, I’m so angry with him I’m going to hit him on the head with this wrench and that’ll really hurt him’, then that can amount to murder.

BLOOD IN THE DINGHY? NO, JUST LUMINOL
Horsburgh, April 28, 2015: You suggested in your opening address that there were “some indications of blood” in the dinghy. Was that a reasonable statement when confirmatory tests for blood were negative?
Ellis, May 5, 2015: Never did I suggest there was proven to have been blood in the tender. … The whole question of whether there was blood in the tender is not one of crucial relevance to conviction in any event. The evidence necessary to the conviction of Ms Neill-Fraser might be said to fall broadly into two parts – that proving Mr Chappell is dead, having been murdered being part 1 and that proving Ms Neill-Fraser murdered him being part 2.

FROM TRANSCRIPT: OPENING ADDRESS BY ELLIS
“…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.” (emphasis added)

Ellis: (later in the trial) As we go through it and could you come perhaps to photograph 21, and what does that show?

McHoul (forensic scientist): This is a photograph that was taken to show the areas that glowed with the luminol screening test for blood. It’s – what happens is the chemical glows quite – the glow isn’t very strong. To take a photograph you need a very long exposure so that’s why it looks a bit blurry, because of the long exposure, but yes, you can see quite clearly there are some positive areas there with the chemical.

Ellis: Yes. And when you look at those do you – are there particular strengths of the reaction that you can take note of?

McHoul: Yes, what we – well we take note of several things when we spray luminol. We take note of the strength of the reaction and how long lived it is, the actual colour of the glow that you see and just the manner of the reaction itself, so whether it’s a constant glow, whether it might be sparkling or you get a bright flash which then dies down, because with experience you can distinguish sometimes between false positive reactions with luminol and true positive reactions with luminol and how it reacts, the colour, the longevity is all an indication of that.

O’DAY
Horsburgh: In your closing address you mentioned Neill-Fraser’s “involvement with the disappearing (sic) young Mr O’Day”. What was that based on?

Ellis: …she had been involved in some way as a peripheral witness in the police investigation of the disappearance of a young man named O’Day, son of a well known private investigator, last seen in the vicinity of the Tasman Bridge. It was thought likely but not certain he had suicided but no-one saw him do so and his body was never recovered. The jury could not conceivably have taken my fleeting comment in any other way but that she knew from that involvement that doubt can remain where a body is not recovered. (emphasis added)