Sue Neill-Fraser appeal should be heard by mainland judges – says judge

Andrew L. Urban.

February 3, 2020: The three Tasmanian judges set to hear Sue Neill-Fraser’s new appeal in May 2020 against her 2010 conviction for the 2009 murder of her partner Bob Chappell should disqualify themselves and be replaced by interstate judges, says a former State and Federal court judge thoroughly familiar with the case.

The main rationale for his view is that in the appeal hearings, the Tasmanian judges (Justices Helen Wood, Stephen Estcourt and Robert Pearce) may be called on to consider matters concerning the trial judge, who is now their Chief Justice, Alan Blow AO. This would put them in a conflicted position.

At the trial, the judge had refused leave to recall Meaghan Vass, the homeless 15 year old whose DNA was found on the deck; Vass had earlier denied having been on board. In her 60 Minutes interview on March 10, 2019, Meaghan Vass admitted that she was on Four Winds with two male friends and witnessed the altercation that led to Bob Chappell’s death; Neill-Fraser was not on board. She also said she had vomited, which would have been the source of her DNA. That admission is the basis for the ‘fresh and compelling’ evidence supporting the primary ground of appeal to be heard in May. Leave to appeal under Tasmania’s new Further Right to Appeal law (passed in November 2015) was granted by Justice Brett on March 21, 2019.

A secondary consideration, says the judge, is the closely knit nature of Tasmania’s legal fraternity. This is not to question the ethics of those involved, but the silken threads of friendship are recognised as a reality of the human condition and could well make the public uneasy – especially so in this matter.

This highly controversial case has polarised Tasmania and has worried many that it is eroding confidence in the legal system, a cornerstone of democracy. Perceptions will be formed about the appeal process and the Tasmanian government would be wise to take precautions – such as outside judges – that this long awaited appeal is seen to be scrupulously fair, says the judge. Neill-Fraser has been incarcerated for more than 10 years; her first appeal was heard in 2011. And roundly criticised

Speaking exclusively to wrongfulconvictionsreport.org, the former judge thinks that the case should never have got to court, but once it did, it should have been dismissed for lack of evidentiary basis. And during the trial, there were several instances where this judge would have ruled against the prosecutor speculating about how the murder was committed. In the end, he would have directed the jury to acquit Neill-Fraser as no case was made out against her. This view is shared by the famed Chester Porter QC, among others.

Timeline of a worst case scenario – the months and years slip by ……

a flawed investigation, a guilty verdict, a failed appeal, a refused appeal, a delayed appeal

Bob Chappell on Four Winds – in happier times

26 January 2009 Bob Chappell last seen alive by his sister Anne Sanchez at breakfast and by his partner, Sue, on board their yacht, Four Winds, moored off Sandy Bay, Hobart, early afternoon.

27 January 2009 6am Four Winds low in water on mooring, Bob missing. Four Winds’ dinghy found near rowing shed rocks.

20 August 2009 Sue Neill-Fraser arrested for Bob’s murder, bail refused.

15 March 2010 DNA found on Four Winds matched to homeless 15 year old, Meaghan Vass.

21 September 2010 Trial commences in Hobart Supreme Court; Justice Blow, D. Gunson SC for the defence, T. Ellis SC for the prosecution. A terrified Vass denies she was on Four Winds.

Sue Neill-Fraser, Australia Day2009

15 October 2010 Sue is found guilty.

27 October 2010 Sue is sentenced to 26 years in prison, non parole of 13 years.

11 August 2011 Court of Criminal Appeal (Crawford CJ, Tennent and Porter JJ) hears Sue’s appeal.

6 March 2012 Appeal dismissed, but sentence reduced from 26 to 23 years.

7 September 2012 Appeal to High Court on ground of stranger’s DNA at crime scene a risk to conviction; High Court refuses to hear appeal when DPP claims that Vass’ DNA was transferred on-board, not direct deposit.

17 January 2014 Coroner’s findings support trial outcome (it has to, by law).

2 November 2015 New Right to Appeal law passed in Tasmania.

31 January 2016 Sue Neill-Fraser lodges new appeal with barrister Tom Percy QC. DPP Darryl Coates SC argues against appeal leave being granted.

20 June 2017 Sue’s lawyer Barbara Etter steps aside from the legal team. Paul Galbally steps in a little later.

21 August 2018 Third hearing before Justice Brett., seeking leave to appeal

Meaghan Vass on 60 Minutes, March 10, 2019

10 March 2019 In her 60 Minutes interview, a distraught Meaghan Vass admits that she was on Four Winds and witnessed the altercation that led to Bob Chappell’s death; Neill-Fraser was not on board.

21 March 2019 Leave is granted for a further appeal

2 August 2019 Appeal documents lodged with court (see below)

20 August 2019 10th anniversary of arrest

12 November 2019 Appeal hearing set for March 2, 2020

13 December 2019 Appeal hearing delayed till May 25, 2020

The grounds for appeal are:

Fresh and compelling evidence establishes that there has been a substantial miscarriage of justice.

Particulars:

There is fresh and compelling evidence that:

1.1: Meaghan Vass had boarded the Four Winds, and the deceased was attacked while she was on board.
1.2: Evidence led by the prosecution at trial in relation to:

1.2.1: the results of, and inferences that could be drawn from, DNA testing;
1.2.2: the results of, and inferences that could be drawn from, Luminol testing;
1.2.3: a winching reconstruction of the Four Winds was misleading.

1.3: The dinghy seen near the Four Winds around the time the deceased was attacked was not the Four Winds tender.

 

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35 Responses to Sue Neill-Fraser appeal should be heard by mainland judges – says judge

  1. Seemingly a decade ago, justice was seen to be done, by an administration and its cringe worthy, obsequious venal cohorts. Irrespective of the true value of the truth and nothing but the truth, it more than appears an innocent woman has been unjustifiably shafted by a judicial system, and officers of the law, who obviously, professionally, leave very much to be desired. The venality of those connected with the prosecution of this case, I concur, needs to be thoroughly investigated and transparently reported upon. Regressing Australian moral and ethical standards through the manipulation of recorded evidence, to choreograph a government/public service acceptable outcome, is fundamentally farcical and not suited to a nation of 21st century values. Where reported Tasmanian values and practices stand though, looks to be quite 19th century, comfortably enveloped in colonial conspiracies and institutionalised incestuous illegitimacy.

  2. LB says:

    People appear to be sinking to a new low on this blog – wagering amounts about what seems to be largely speculation isn’t at all helpful, interesting or appropriate. Personally I find it rather distasteful. If there is nothing informative or intellectual to add, why bother commenting at all? Hmmmmmmm…. I predict that this circus may look rather foolish all too soon.

  3. Jason Collins says:

    Alan Blow became Chief Justice on 8 April 2013. Sue’s first appeal was in 2012. Her appeal was rejected even though Alan Blow wasn’t the Chief Justice then. The main issue now is whether Meaghan’s affidavit of last year was factual or false. Since that affidavit was provided a decade after Alan Blow presided over Sue’s trial in 2010 then none of the current judges on her appeal have to worry about Alan Blow and his reaction to their decision. This appeal is about fresh and compelling evidence that wasn’t available or couldn’t have been produced at the trial in 2010.

    • andrew says:

      Missing the point: the issue referred to here is that during the appeal matters may be raised regarding justice Blow’s conduct and/or decisions at trial.

  4. Diane Kemp says:

    Very interesting to see new names appearing trying to trash Andrew and his blog. My thoughts are that as the appeal grows closer, we will see more responses like those above from the naysayers. We do not have blinkers on, as for believing an Assistant Police Commissioner from Tasmania – you have to be joking !!!!!
    Methinks that the dirty tricks brigade have started or maybe they are posts from police????
    Believe what you wish but Sue is innocent and has been the subject of a corrupt system across all levels.

    • andrew says:

      Yes Diane, and you identify yourself, unlike those agitators here who identify themselves as TE, Beverly, DB, and others – previously Peter Lozo – all protecting the conviction. That is what the police and the DPP are doing. These arguments are over details in the case that are really beside the point; like this issue about the dinghy testimony. There is no witness testifying to having seen Sue Neill-Fraser boarding the Four Winds that night, so it is of no real value. But the nitpicking – like the hype about her “lying” visiting Bunnings, and the endless bickering about the fire extinguisher that was missing from the boat and would it or would it not weight a body down, that was part of prosecution speculation – is all a distraction from the hollowness of the prosecution case. I shall not publish any more such comments. As to Meaghan Vass and my complaint to the Integrity Commission, I stand by it. See it here: https://wrongfulconvictionsreport.org/2019/06/18/complaint-to-the-integrity-commission-tasmania/

  5. TE says:

    The credibility of this blogsite is in serious doubt after it was revealed that Mr Andrew Urban has consistently promoted that it was Mr Grant Maddock who was spotted at around midnight on Australia Day 2009 even though it had been brought to Mr Urban’s attention a number of times that Mr Maddock did NOT have a motor on his wooden dinghy at that time whereas the prosecution witness during Sue’s trial stated, under cross-examination by Sue’s defence attorney, that he heard an overboard motor on the (inflatable) dinghy that he saw. I refer Andrew to page 385 of the Trial Transcript. Anyone who isn’t familiar with the trial evidence would have been misled by Mr Urban’s persistent avoidance of facing up to the discrepancy that is now leading the defence team to probably ditch the ground of appeal related to Mr Maddock.

    This is from rom page 385 of the trial transcript:

    “Thank you. The dinghy was – more correctly the outboard of the dinghy was obviously making sufficient noise to draw your attention to it?……I heard it, I heard an outboard.

    Did you hear the outboard before you sighted the dinghy?……I can’t remember.

    At fifty metres away from it you could clearly hear the engine as it – as the dinghy went along?……Yes.

    And it was reasonably loud to where you were?……It wasn’t a roaring noise but I could hear the outboard. “

    • andrew says:

      The relevance of this witness testimony about a figure in a dinghy at midnight heading in the direction of Four Winds is totally irrelevant to the charge of murder against Sue Neill-Fraser. It proves nothing, whether it was Mr Maddock or not, whether it was a motor or not…. waste of time even talking about it.

      • TE says:

        The critical issue is that since no-one called TasPol to inform them that he/she was the person who was on a MOTORISED inflatable dinghy travelling past the Rowing Shed late at night on Australia Day 2009 then it is beyond a reasonable doubt that the person who was spotted by the prosecution witness (Mr Hughes) is the killer of Mr Chappell. Your readers, if they are interested in the TRUTH of who killed Mr Chappell, ought to be very curious about the identity of that person. Who would have a need to be on a dinghy, a motorised inflatable dinghy, at around midnight heading out North East on Australia Day. Who lied about not going out to Marieville Esplanade late at night, about the same time a ‘female figure’ was spotted on a motorised inflatable dinghy?

    • Beverly says:

      If it wasn’t Grant Maddock who was spotted by Mr Hughes then it must have been Sue Neill-Fraser on her inflatable dinghy heading out to Four Winds sometime between 11:30 pm and midnight.

  6. Gilbert & Sandra Andrews (Queensland) says:

    You word against the word of an Assistant Police Commissioner? You must have blinkers on Mr Urban.

  7. DB says:

    Andrew Urban, We can discuss the validity of your complaint on the first day of Meaghan’s appearance under oath in the supreme court. On the basis of the public information so far, I am offering you a $1,000 wager that your complaint was unjustified.

  8. Tony Brownlee says:

    This garbage trial does not for one moment Come as any surprise to
    Me. The 1889 jury system is as of 2020 highly flawed. It does not represent the intention of the Framers of Section 80 one bit! As Kirby J. Stated in Brownlee v The Queen the constitution is evolving, otherwise of course an openly gay, very good man, would never end up sitting in the HC of A! Even though this was a state matter the issues prevail in all jury trials. Jurors have no idea as to their responsibilities! They are thrown in the deep end. Many who have approached me, not in them, have said the same thing! In many cases jurors have stated: they believed they had an obligation to convict! Each state should hire a fixed pool of full time jurors. They would still be representative of the community but would be educated as to the law, which is missing!!!

  9. Beverly says:

    Does it really matter who the appeal court judges are given that the main ground of appeal concerns whether or not Meaghan Vass boarded Four Winds? Sue’s lawyer has allocated 10 days just to this first ground. If Meaghan says in the court that she was on Four Winds when one of her then associates attacked Bob then Sue will be released. Otherwise, Sue’s appeal is very likely to fail.

    • DB says:

      That is exactly my thought, Beverly. So much has been made about Meaghan’s confession on 60 Minutes. It is now time to put the credibility of that confession to the rigour of cross-examination in the court. I think it very odd that the defence would want 10 days for a discussion about the first ground of appeal. This length of time wouldn’t be required by the defence team had they been confident that Meaghan will stick by her 60 Minutes affidavit.

      • andrew says:

        Actually, it was the DPP who wanted 2 weeks…This is our report published November 13, 2019: Justice Helen Wood has set the date for appeal against Sue Neill-Fraser’s murder conviction, for March 2 – 13, 2020, after DPP Darryl Coates estimated it would take two weeks; Neill-Fraser’s lawyer, Chris Carr, had estimated just 3 – 4 days.

  10. Tom Cairns says:

    There is a classic line from the old movie “In the Heat of the Night” when Sidney Poitier is asked what he is doing here:
    “They’ve got a murder they don’t know what to do with.”

  11. Williambtm says:

    I Have already been enabled to learn the facts, that no fulsome pristine case decisions can be an expectation from or by Tasmania’s Supreme Court.

  12. Robin Bowles says:

    Justice must not only be done, but he seen to be done! Never did this apply more aptly! Of course the appeal should be heard by judges not tainted by the long arms of the Establishment in Tasmania. How is this Appeal bench going to rule against their boss? In order for an appeal to be successful, the Appellant must show that the decision maker erred factually or legally, affecting the outcome of the case. An Appeal is not a new trial or a rehearing. For the Appeal to succeed, the Appeal judges must agree that the trial judge got it wrong. That’ll go down like a lead balloon in Establishment circles!

    • Diane Kemp says:

      Agree Robin. The Chief Justice must not be allowed to be seen as making a mistake with this case. I fear for the outcome for Sue if Tasmania does not bring in judges from outside but given the bloody mindedness that has been clearly demonstrated, I do not believe they will budge. Why can’t Justice Brett sit on the panel – at least he appears to be able to make well informed judgements without any bias??

  13. Geraldine Allen says:

    Andrew, I notice that a Committal Hearing is not listed in your chronology. In more recent times I’ve become particularly interested in what transpired at this SN-F hearing, since it is claimed as a process that plays an “important role” in our justice system.

    “… The collective view of our members is that committals are essential to a fair trial of serious charges. This is not because of lawyerly self-interest – in fact without committals, more jury trials would be heard, and they would be longer. We believe, and the Victorian Law Reform Commission acknowledges, that it is crucial to ensuring a fair trial that there are some forms of pre-trial proceedings. …” (Criminal Bar Association of Victoria.)

    “… A fair and efficient trial is not only essential for all accused, but also reduces delay and inconvenience for complainants, other witnesses and juries. Experience shows that late disclosure of important evidence by the police is a major cause of delay. A key purpose of committals is to ensure proper disclosure. …”

    “… Committals allow independent scrutiny of the evidence, separate from the police investigation, before an accused faces trial. This key benefit protects the right of an accused to receive a fair trial. Committals frequently resolve factual disputes between the prosecution and defence and allow cases to resolve appropriately and on an accurate factual basis before a trial date is allocated. …”

    “…Experience shows that committals:
    —enhance the efficiency of the criminal justice system by reducing the length of jury trials
    — facilitate efficient use of court time
    — ensure the fair trial rights of accused persons
    — contribute to early resolution of cases
    — dispose of cases with insufficient evidence to support a conviction, and
    — improve early disclosure of the police case.
    It should be remembered that any person accused of a serious crime is presumed innocent. It is in this context that committals continue to play an important role in Victoria’s justice system. That’s why the Criminal Bar Association supports their retention. …”
    Full article
    https://www.lawyersweekly.com.au/wig-chamber/27376-committals-are-essential-to-our-justice-system

  14. Keith says:

    Surely if the appeal fails, it will be grounds for a further appeal? The Tasmanian legal system couldn’t be so stupid could they? If past behaviour is the best predictor of future behaviour, then I suppose it’s inevitable.

    • Robin Bowles says:

      Yes an appeal against the outcome (if unsuccessful) is possible, provided the pro bono team will keep fronting up indefinitely. Perhaps the DPP and Co are just counting on her continuing to appeal until her minimum time is served, then let her out and wash their hands of it all- no compo, no apology, no blame. A bit like Graham Stafford, or John Button, or many others I could mention.

      • Geraldine Allan says:

        Andrew Mallard. That story is wicked, wicked, wicked. Cover-up after cover-up.
        I feel so increasingly angry about that state of affairs to which those who are elected to oversight, turn a blind eye & deaf ear.

  15. Brian Johnston says:

    7 September 2012 Appeal to High Court on ground of stranger’s DNA at crime scene a risk to conviction; High Court refuses to hear appeal when DPP claims that Vass’ DNA was transferred on-board, not direct deposit.

    DPP claims DNA was transferred. He had no knowledge? or did he. Was he ignorant or knowing. We the people had been led to believe a small amount of DNA may have been traipsed onto the boat, chewing gum?. We then learn it was about the size of a dinner plate. Then we learn vomit.
    DPP should be charged for saying DNA was transferred. Misleading?, more likely deceitful, worse than dishonest.

  16. LB says:

    This has been raised before. To have three judges deliberating on matters and reviewing decisions made by the current Chief Justice is totally inappropriate! Even IF there are no conflicts of interest, the perception that there is insufficient distance between these officers of the court in such a small jurisdiction should be enough to not even have this situation as a remote consideration!

    Yet another failure of the system in Tasmania!
    Simply appalling!
    Wake up Tasmania!

  17. Fiona Peate says:

    I agree absolutely with everything this ex State & Federal judge has suggested. I am not a legal person but common sense made me think from the outset that any Tasmanian judges who work to Chief Justice Alan Blow would be conflicted.

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