Andrew L. Urban
When Meaghan Vass finally identified herself to the court in March 2019 as an eye witness to Bob Chappell’s 2009 murder, confirming the evidence of her DNA at the crime scene, the prosecution’s circumstantial case against Sue Neill-Fraser fell apart. The new appeal is due to be heard later this year, but Vass has already changed everything.
The American Innocence Project has used DNA as its primary tool to exonerate hundreds of convicted murderers and rapists over the past 25 years. But in the Neill-Fraser case, the prosecution argued in contradiction to the DNA evidence. When DNA was found at the crime scene at the start of the investigation, it could not be matched to anyone in the police database. But that doesn’t mean it wasn’t vitally important evidence. Whose was it? What did they do or see? Could it be evidence consistent with the innocence of the accused? (Obviously, yes.)
And even when a match was made, several months before the trial began while the accused – Sue Neill-Fraser – was on remand in prison, the case against her was not dropped. It should not have mattered that the then homeless 15 year old Meaghan Vass denied to police having been on the boat and lied as to her whereabouts on the night. (They believed that? and not Neill-Fraser’s denial of guilt?) This was exculpatory evidence of the most powerful kind. Yes, it would have been embarrassing for all concerned to admit having arrested the innocent partner of the murdered man, but that must never be a justification for the legal system itself to pervert justice.
TasPol should never have submitted their brief of evidence against Neill-Fraser in the first place, but after the match, TasPol should have immediately withdrawn it. In the days after Chappell’s disappearance from their yacht, police should have attempted to match the DNA with persons of interest around Hobart – not least the petty crims and others who were eventually identified years later by former detective-turned author Colin McLaren, as he detailed in his book Southern Justice (Hachette) and in the 6-part docu-series, Undercurrent (Eve Ash & CJZ Productions).
The DPP should also know that DNA does not stand for Do Not Admit.
In light of Vass’ testimony, everything about this case acquires new dimensions. Here are just a couple of elements.
CONFIDENCE OR DENIAL?
On 60 Minutes (8.30pm, Sunday, March 10, 2019, Channel Nine), Meaghan Vass confirmed that Sue Neill-Fraser did not kill Bob Chappell on Australia Day 2009. Vass knows because she was an eye witness, as her on-board DNA indicated, though it was dismissed as a ‘red herring’ by the DPP for the past 10 years. She provided the court with an affidavit to that effect which was the fresh evidence that persuaded Justice Brett to grant Neill-Fraser leave to appeal (March 21, 2019).
The Advocate news report, March 11, 2019: Tasmania Police said it was aware of the contents of the 60 Minutes story. Assistant Commissioner Richard Cowling said police re-interviewed Ms Vass last week when the program’s promotional material suggested a new version of events.
“The version of events given by Ms Vass on 60 Minutes is contrary to her previous police interview, contrary to her sworn evidence in court and contrary to last week’s police interview,” Commander Cowling said.
In her interview on 60 Minutes, Vass had said she wouldn’t tell the police what she was revealing on air – but was prepared to say it under oath in court. Tasmania Police did not present any “contrary” new information based on “last week’s police interview” with Meaghan Vass to the court in the days following that interview or in the 10 days following the 60 Minutes broadcast.
“We continue to have full confidence in both the original and current police investigators and reiterate that Sue Neill-Fraser stood trial and was convicted by a jury.” (March 11, 2019)
(Why does it need reiterating – of course Neill-Fraser stood trial and was convicted by a jury; that’s the whole problem. All wrongful convictions are preceded by a guilty verdict.)
Earlier, after an Australia Day call for a royal commission by Civil Liberties Australia, a State Government spokesman said the Tasmanian legal system was sound. “The Attorney-General has every confidence in the Tasmanian Legal system,” a spokesman said. (Jan 28, 2019, The Mercury)
So much confidence, so little to base it on.
The prosecution went to trial armed with an argument based on character assassination, circumstantial evidence – and speculation without proof. The DNA of a stranger at the crime scene was just ‘a red herring’ Tim Ellis SC maintained. He speculated how the murder must have been committed.
In Tasmanian Times, May 5, 2015, Ellis published an email exchange between himself and journalist Susan Horburgh of the Australian Women’s Weekly; she was preparing an article 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, followed by relevant extracts from the trial transcript.
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.
I suppose you could adopt Mr Ellis’s theory and use the ‘sneak up behind when they’re least expecting and bang them on the head’ but what would happen if the person fought back if your attempt was inadequate? (Ed: yes, this was defence counsel!)
FROM TRANSCRIPT: HH JUSTICE BLOW 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.
1) It is impermissible for the prosecution to speculate – and for good reason. In a serious criminal case, the state must take extreme care to ensure that the accused receives a fair trial: the punishment is heavy. 2) In a circumstantial case, the burden of proof beyond reasonable doubt is also subject to the proviso that the guilt of the accused is the ONLY reasonable conclusion available to the jury.
As for Mr Ellis’ claim that “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,” … it is nonetheless essential that the prosecution produce evidence of the identity of the murderer beyond reasonable doubt.