Justice derailed – Part 1

Andrew L. Urban.

As 2020 begins, we look forward to Tasmania’s Supreme Court finally hearing Sue Neill-Fraser’s new appeal against her 2010 murder conviction in May. Also during the year, the NSW the Supreme Court is expected to hear Robert Xie’s appeal against his 2017 multiple murder conviction. In Part 1 of this series we examine these two cases where tunnel vision was a key element in securing unsafe convictions.

These are just two currently contested cases that highlight a need for reforms that begin with police investigations and continue through the proper use of forensic & scientific evidence to prosecutorial and judicial responsibilities.

We begin by showing how in the cases of Sue Neill-Fraser and Robert Xie, tunnel vision plagued the investigations – and beyond.

SUE NEILL-FRASER

In 2010, then 56 year old Neill-Fraser was convicted and jailed for 23 years for the murder of her partner of 18 years, Bob Chappell, on board their yacht, Four Winds, on Australia Day 2009, on Hobart’s Derwent river in Sandy Bay. However, since Chappell’s disappearance, no body has been found, no murder weapon produced in evidence and there were no witnesses. The Crown produced no evidence supporting its speculation that Neill-Fraser murdered Bob Chappell with a blow to the head below decks, winched him up and placed him into their dinghy and dumped him in the water. She was sentenced to 23 years (26 before appeal).

Neill-Fraser has always strenuously denied she killed Chappell.

Some years after the trial, his searching led former ace detective Colin McLaren to a group of thieves who were never – but should have been – considered persons of interest in the police investigation. “In a nutshell, a yacht break and enter that went horribly wrong,” he writes in his book that details his own research into the case, Southern Justice (Hachette). “On the day Bob went missing, Sandy Bay locals told police about their boats being broken into and their dinghies stolen in the days and weeks preceding Bob’s disappearance. During my research I discovered that break-ins were as common as prawns,” writes McLaren.

“The yachties and fishermen suspected the homeless street kids who sometimes frequented the foreshore, chasing cash to fund a night of boozing or drugs. Some of the boaties named names. Others told police, never to hear back.”

Long time friend and ex-business partner of Sue Neill-Fraser, Bob Martyn, was in her house when police were making their earliest inquiries about Bob Chappell’s disappearance. He offered to be interviewed but the police never bothered. (Nor did police interview Neill-Fraser’s ex husband.) Martyn would have been able to tell the court that petty crim Phillip Triffett’s testimony against Neill-Fraser was, in key aspects, a lie.

Police were looking at Neill-Fraser with tunnel vision; nothing was considered that didn’t fit with their belief in her guilt. They certainly ignored information contained in her sworn statement to police the day after Bob Chappell’s disappearance from their yacht. It provides clues that should have directed police to persons of interest…read it here.

Missed clues in Sue Neill-Fraser’s Statutory Declaration

The DNA of Meaghan Vass, then a homeless 15 year old, was found on the deck of the yacht, but in court (September 2010 and again October 2017) she denied having been on board and the DNA was dismissed as a ‘red herring’ by then DPP, Tim Ellis SC.

But in her emotional 60 Minutes interview almost nine years later (Sunday, March 10, 2019, Channel 9), Meaghan Vass finally told the truth – ‘the objective evidence backs it up’ as Robert Richter QC put it: she witnessed Bob Chappell’s murder on board Four Winds on Australia Day 2009, as part of “a yacht break and enter that went horribly wrong,” as McLaren had put it in his book, published months before the 60 Minutes admission by Vass.

Vass, understandably distraught, gave interviewer Liam Bartlett the answers that not only exonerate Neill-Fraser of the murder but identify the killer/s – whose names she knows but doesn’t reveal on camera.

The court also exhibited tunnel vision, from the prejudicial conduct of the prosecution to the acceptance of the Crown’s speculation by the judge – see below.)

The new appeal has been deferred from March to May 2020.

ROBERT XIE

On July 18, 2009, newsagent Min Lin, 45, Mr Lin’s wife Yun Li “Lily” Lin, 44, their sons Henry, 12, and Terry, 9, and Mrs Lin’s sister, Yun Bin “Irene” Lin, 39, are found dead in their North Epping home. Police investigations over the next six months fail to find clues or culprits. In January 2010, police set up surveillance on Robert Xie: cameras and listening devices installed in his house and car. Still nothing.

On May 5, 2011, Robert Xie is arrested and charged with five counts of murder.

There was no direct evidence that Robert Xie viciously murdered the five members of his wife’s family nor any credible circumstantial evidence.

In the absence of any durable evidence that pointed to Robert Xie, the police exhibited tunnel vision to focus on Xie. The prosecution continued the process and made much of a DNA sample (‘stain 91’) taken from the Xie family home garage floor, 200 metres from the Lin family’s house, the scene of the murders.

Expert witnesses provided extensive but conflicting testimony, and in the end, none of them could exclude young Brenda Lin from the DNA sample; but Brenda was overseas on a school excursion at the time of the murders.

In stain91 six profiles were found with scores exceeding 4000; they were the six members of the family – yet there were only 5 victims. Since Brenda was out of the country at the time, it is virtually impossible for the DNA in stain91 to have originated from the crime scene.

The appeal against his 2017 conviction has been delayed by the Crown, most recently in October 2019 and is expected to be heard in 2020.

THE INSIDIOUS EFFECTS OF TUNNEL VISION
This well known blight on the Anglosphere’s criminal justice system is comprehensively examined in a paper by Keith A. Findlay (University of Wisconsin Law School; Legal Studies Research Paper No. 1116: Conviction of the Innocent – lessons from psychological research. Tunnel Vision by Keith A. Findley):

Tunnel vision both affects, and is affected by, other flawed procedures in the criminal justice system. For example, mistaken eyewitness identifications -the most frequent single cause of wrongful convictions (Gross, Jacoby, Matheson, Montgomery, & Patil, 2005; Scheck, Neufeld, & Dwyer, 2000) -can convince investigators early in a case that a particular individual is the perpetrator.

This happened twice in the Neill-Fraser case, in which the prosecution was trying to show that the relationship between the accused and the victim was breaking down as a precursor to the murder, as a basis for motive:

1- A witness wrongly identified the victim having a loud argument on the Hobart dock with the accused. It turned out not to have been the accused but the sister of the victim and not even the relevant day.

2 – A witness said he saw a female figure – suggested to have been the accused – rowing out towards the crime scene (Four Winds) around midnight on the night of the murder. It turned out to be a slender young man with shoulder length hair helping another yachtie to moor.

Police and prosecutors, convinced of guilt, might recruit or encourage testimony from unreliable jailhouse snitches, who fabricate stories that the defendant confessed to them, in hopes that they will benefit in their own cases from cooperation with authorities.

That is exactly what happened in the Xie investigation when police recruited a prison inmate to try and elicit a confession / self incriminating responses from Xie while he was on remand awaiting trial. (Covert recordings such as this are notoriously unreliable – see article on forensic transcription.)

Police had been unable to find any clues or suspects for almost two years, until finally fixating on Xie. Then the prosecution tried to fit him with the crime despite absence of evidence. That’s how tunnel vision corrupts the process. For example, the Crown asserted that DNA – stain91 as it was called, the only DNA sample found with an identified match – was evidence of the murder weapon having rested on Robert’s garage floor (200 metres from the crime scene, his brother in law’s house), supposedly awaiting disposal later in the day. There was no evidence to support this speculation; indeed, there was no murder weapon ever found.

tunnel vision inside the courts

Tunnel vision is a natural human tendency that has particularly pernicious effects in the criminal justice system. Tunnel vision in this context is generally understood to mean that “compendium of common heuristics and logical fallacies,” to which we are all susceptible, that lead actors in the criminal justice system to “focus on a suspect, select and filter the evidence that will ‘build a case’ for conviction, while ignoring or suppressing evidence that points away from guilt”. This process leads investigators, prosecutors, judges*, and defense lawyers alike to focus on a particular conclusion and then filter all evidence in a case through the lens provided by that conclusion. Through that filter, all information supporting the adopted conclusion is elevated in significance, viewed as consistent with the other evidence, and deemed relevant and probative. Evidence inconsistent with the chosen theory is easily overlooked or dismissed as irrelevant, incredible, or unreliable. Properly understood, tunnel vision is more often the product of the human condition as well as institutional and cultural pressures, than of maliciousness or indifference.

* For example, Justice Blow in sentencing Sue Neill-Fraser seemed to have been afflicted by tunnel vision, too. (Below is an extract from the article (published on January 11, 2014) analysing his sentencing remarks:

Sue Neill-Fraser: the sentencing, 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.

*
The tendency toward tunnel vision is partly innate; it is part of our psychological makeup (Findley & Scott, 2006). Tunnel vision is the product of a variety of cognitive distortions, such as confirmation bias, hindsight bias, and outcome bias, which can impede accuracy in what we perceive and in how we interpret what we perceive. These cognitive biases help explain how and why tunnel vision is so ubiquitous, even among well-meaning actors in the criminal justice system.

transparency would help counter tunnel vision

In criminal cases, greater transparency requires providing the fullest possible investigative information to the defendant-that is, expanded discovery. Traditionally, discovery is very limited in criminal cases — as opposed to civil cases, in which expansive discovery is the rule (Prosser, 2006). Armed with full investigative information, the defense might at least have a chance to push back against the bias-enhanced police hypotheses-to identify alternative suspects, credible evidence undermining the hypothesis of the defendant’s guilt, or the absence of significant evidence against the defendant.

Transparency helps to counter tunnel vision in another important way as well. In addition to sharing the information with actors who have an incentive to look outside the tunnel, transparency also helps to modify the effects of biases on decision-makers. Research shows that, when people know their actions are being observed and that they will be held publicly accountable, they tend to exhibit less bias in their hypothesis testing strategies (Leo, 2004).

Thus, theoretically at least, the more that police investigations are conducted and prosecutors’ decisions are made in open and observable ways, the more likely they will be to resist biasing pressures and tendencies.

suspicious bias

In WA, police defamed an innocent man by publicly naming him (Lloyd Rayney) soon after starting their investigation as the only suspect in his wife’s murder. He was eventually (three years later) charged, tried and acquitted. Twice. He has now sued the State – and won. The killer is still at large. In his judgement, Justice Cheney said: I am satisfied that . . . the police involved in the investigation construed events and information that they learned with a suspicious bias rather than objectively. That conclusion most clearly emerged from the evidence of DSC Williams, DSS Lee, and DS Correia. Each of those witnesses was at pains to construe every snippet of information they had as pointing to Mr Rayney’s involvement with his wife’s murder. Many of the matters that they relied upon as pointing to Mr Rayney’s guilt were at best equivocal, simply not probative of anything or inconsistent with any cogent case theory.

As the text book Criminal Laws [from page 178] (Federation Press) points out, the effects of many police decisions and practices in the pre-trial process will not be apparent to the defence or the court. It will only be revealed through a royal commission or other official inquiry.

The adversaries in this process command wholly unequal resources: the authority and resources of the state (primarily the police) are pitched against those of the individual.

The assumption that formal rights and safeguards favouring the accused (including an effective right of access to statements collected by the police) adequately redress such inequalities is absurd.

Says Findley… greater transparency at all stages of the criminal process might be the most powerful way to counter tunnel vision. Transparency helps to modify the effects of biases on decision-makers. Research shows that, when people know their actions are being observed and that they will be held publicly accountable, they tend to exhibit less bias in their hypothesis testing strategies.

The January 2, 2020 edition of GQ magazine carries an article by Elle Hardy that explores the unreliability of much forensic evidence presented to courts, and the attendant corruption of justice by tunnel vision.

The article quotes legal academic of Flinders University in Adelaide, Dr Bob Moles, who argues that it’s not only the science that needs to be scrutinised, but the culture within the crime-fighting community.

“Look at cases that have been overturned, and you’ll see that a lot of the errors were perfectly obvious from the outset. It wasn’t that some new science came in and they realised that they had made a mistake. If you’ve got a ghastly crime, and find somebody who you think looks a bit suspicious, it’s very easy for the police to adopt tunnel vision to go after that person.”

In a paper on miscarriages, legal authors Juliette Langdon and Paul Wilson write: Over-zealous police conduct is recognised as a major contributing factor leading to miscarriages of justice (Anderson 1993; Newbold 2000; Prenzler 2002; Ransley 2002; Wood 2000, 2003), akin to a ‘systemic dynamic’ (Huff et al. 1996:64). As in Wilson’s (1989) paper, over-zealous police investigation was found responsible or partly responsible in 50 per cent of cases. Examples of such conduct include police deliberately distorting a witness’s statement, coercing a confession from a vulnerable suspect, and ignoring exculpating evidence. The issues relating to over-zealous police investigations are similar to those that Wood (2000) described as ‘process corruption’. Police often appear to engage in such conduct because they strongly believe the suspect is guilty and consequently fail to follow other lines of inquiry. That’s one definition of tunnel vision…

Their analysis of 32 Australian and New Zealand cases reveals that over-zealous police continues to be a significant factor leading to miscarriages of justice. This factor encompasses a wide range of corruption-related behaviours which may explain why so many cases fall into this category.

The natural solidarity and loyalty among law enforcement professionals can stand in the way of justice.

A family in a recent criminal case had lawyers privately appalled at the level of defence, or rather no defence, but they could not find one barrister to run this argument. They were told that “Judges do not like this argument and that it could very well cost us the Appeal,” best to leave this point out. “So the comfortable arrangement between lawyers on both sides, experts, police and judges continues in order to protect the system. And when it is found that there has been not just a mistake but deliberate action that has led to this, no one is held accountable.”

Michael Kirby, then a High Court judge, is on the record saying: “it should be acknowledged wholeheartedly that, in too many cases, it has been the media
rather than the institutions of justice or the Judges, which have been vindicated …
Embarrassing as it is to say … It was a band of loyal journalists who supported them, rather than the judicial institutions which actually led to the termination of that injustice.”

Given that any improvement regarding the appellate process is unlikely to occur, the argument for a Criminal Cases Review Commission in Australia is persuasive.

COMING SOON: Justice derailed – Part 2