The directions hearing in the Tasmanian Supreme Court before Justice Wood on Friday, July 3, 2020 was unable to settle on 17 August as the start date for the long awaited appeal against her 2010 murder conviction, reports Rosie Crumpton-Crook, Secretary of the Sue Neill-Fraser Support Group.
Sue was video-linked from Risdon prison and was represented by Paul Smallwood and Paul Galbally who were video-linked from Melbourne. Jack Shapiro represented the Crown and was in court.
Mr Smallwood said that although Sue’s legal team had previously been optimistic that the Appeal would proceed on 17 August 2020, that optimism was now displaced and both parties agreed that the 17 August appeal hearing should now be vacated and listed instead for November. Mr Smallwood acknowledged that this was very unfortunate for the appellant, but said that both parties had reached the conclusion that realistically the matter could not proceed in August due to the spike in COVID19 cases in Victoria, which would impact on the ability of counsel to travel to Tasmania.
Justice Wood however, stated that she felt it would be premature to vacate the August dates. She acknowledged that uncertainties are difficult but she stated that she wanted all possible options to be explored before moving to the November date. She asked that Sue’s legal team look at different options – such as some of Sue’s legal team travelling to Tasmania, and some appearing by video link. She also asked that all requirements for travel / quarantine / what would be classed as essential travel etc be explored.
Justice Wood stated that she was happy to leave a decision for two to three weeks, but she wanted work to continue in the meantime, regardless of when the matter will proceed.
Mr Smallwood stated that Sue’s team had felt in person presentation was essential, but it may be that not all had to present in person.
Mr Shapiro stated that the State wanted to deal with this matter as soon as possible, but the ability to plan efficiently was also needed. Mr Shapiro reported that the DPP will file Proof of Evidence either no later than Monday, 6 July.
Justice Wood adjourned matters for a further Directions Hearing at 9.30am on Friday 24 July 2020.
In reply to Stephen Berry (July 12, 2020 at 11:03 pm):
It seems that there were possiblythree torches on the boat:
Sue said that there was an orange torch and a yellow torch which belonged to the boat [CT 1131 28-40] and that Bob had had one of them in the engine room while he was working there. She did not know what became of the orange torch, she said it had survived the trip to Hobart.
Constable Stockdale [CT 257 20…; 258 …36 ] saw a yellow torch when he boarded the sinking Four Winds after 7:00a.m. 27Jan2009. It was on the RHS on entering the wheelhouse. He said it had blood on it. He radioed for assistance from Marine Police, they arrived within 10 minutes at 7:25a.m.
That yellow torch is possibly the one that Constable Redburn saw on a bench and collected. It had reddish stains on it in a “spatter type pattern“. [EXHIBIT #P06 – TORCH … CT 81 29-36] It had a handle [CT 93 21]. When she first saw it, it was sitting on a bench – neither the bench nor the torch were wet, she said [CT 94 5-10] though one of the stains appeared to have been “somewhat diminished by – by it being watery” [CT 93 33-35]. The colour of the torch is not described by Redburn – perhaps having it as an exhibit in the courtroom along with various photos of it possibly made this unnecessary.
After Redburn had collected the torch (amongst other things) the Four Winds was moved from Sandy Bay to Constitution Dock where later on, in the afternoon of that 27th of Jan. 2009, family members went on board to examine the yacht. Once on board, Sue pointed out [CT 291 4-5] that a torch located inside the cabin and a juice container were not from the vessel.
Dtv. Sgt. Conroy [CT 844 7-22] told the court that this item (pointed out by Neill-Fraser) was larger than the one which was collected by Redburn [P06]. He said that the torch pointed out by Neill-Fraser was not the Eveready that was in court, that the one that she had pointed out was much larger, that it was a black and yellow torch which he believed was a police marine issue torch. It had a handle on it and had been left [he said] by Marine Police who had initially attended.
The torch from which Exhibit number 1 (a swab) was taken, was agreed to by Forensic Scientist Carl Grosser[CT 686 31-33] as being an Eveready Dolphin torch. Christopher McKenzie [678 24-42 mentions that red/brown stains on Exhibit P06 were seen easily on the yellow [of the torch] and were also on the black] This indicates to me that the Eveready Dolphin torch [Exhibit P06] was yellow and black as was the torch that Dtv. Sgt. Conroy said had been left behind by marine police.
So do we have two yellow-and-black torches on the boat before Neill-Fraser boarded it at Constitution Dock? One of which was collected by Constable Redburn, but not the other…?
I have to say, that Redburn, having in the morning ‘collected’ a torch and a number of other items (e.g. a knife and various swabs) while the yacht was at Sandy Bay … kept them during that whole day and night of 27Jan2009 and only after returning the next day (28Jan2009) to the yacht (by then now at Goodwood) and only after making more various ‘collections’, only then – a day and a half later? – only then did she take everything to Forensic Services and check it all in:
I took these on the 27th kept them in my custody until the 28th and I took them to the Forensic Science Service Tasmania, our forensic analyst, for DNA analysis along with the knife and the torch. So I took them on the 28th to the laboratory. [CT 88 14-18].
So, according to Constable Redburn, by the time Neill-Fraser boarded the Four Winds at Constitution Dock on the afternoon of 27Jan2009, there was one yellow-and-black torch on the boat, and, according to Dtv. Sgt. Conroy, he ‘believed’ that it was a Marine Police issue torch, left behind from the morning fracas. Meanwhile, in my view, the other yellow and black torch was in Constable Redburn’s ‘custody’, not at Forensic Services, perhaps in her car boot, perhaps at her home…
One of the particulars of the coming appeal is this:
1.3: The dinghy seen near the Four Winds around the time the deceased was attacked was not the Four Winds’ tender.
In the Eve Ash DVD Feature Documentary, ‘Shadow of Doubt’, (in the ‘Wrong Dinghy’ chapter @ 44min:18sec , it is pointed out that a man with years of experience on the water, Paul Conde, on the afternoon of 26Jan2009, had seen a dinghy alongside the Four Winds. Shown pictures in court of the Four Winds dinghy, he was able to state quite categorically [CT 431 41]:
“the Quicksilver dinghy in the photographs is not the dinghy I saw at five to four on Australia Day last year.”
He had had to resist DPP Ellis’s failed attempts, even in RXN, to find some feature that both dinghies had in common. Paul Conde’s evidence was clear: at 3:55pm, 26Jan2009, a dinghy (not the yacht’s Quicksilver dinghy, was alongside the Four Winds yacht.
Detective Inspector Peter Powell (now retired), then the OIC of the Chappel disappearance case, was later interviewed by Eve Ash (see: ‘Shadow of Doubt’ @ 45min:20sec.). He attempted to explain away Conde’s evidence, saying that the defence had tried to make a lot about the colour and the shape of the dinghy:
“the defence tried to mislead a couple of witnesses by saying it was a different colour to what was in statements”.
That in my view was an unusual statement. He went on to say:
“When people see a vessel on the water like a dinghy, particularly in dusk or darkness, sometimes white looks like grey, with a reflection off the water”.
When Paul Conde saw a dark grey dinghy alongside the Four Winds, at 5 minutes to four, in the height of summer, with daylight savings, it was some four or five hours before sunset – hardly dusk or darkness. He went on to make the following statement, which in my view should be remembered as indicative of what was wrong with the police investigation:
“I guess the important thing is that nobody else came forward to say ‘I was out in a dinghy’, and if they were out there for legitimate purposes, why wouldn’t they?”
The simple answer is that someone in a dark grey dinghy was out there for non-legitimate purposes and that’s why they didn’t come forward. I suggest that Peter Powell’s non sequitur exemplifies what was wrong with the police investigation.
Please, read it again:
“I guess the important thing is that nobody else came forward to say ‘I was out in a dinghy’, and if they were out there for legitimate purposes, why wouldn’t they?”
On the money Garry and after reading most of the trial transcript I came across this.
Page 901. Mr Gunston SC for the defence cross examines SM Conroy who lead the investigation! Asked about the torch that was spotted by the accused on the boat on the day of the 27. Conroy stated in reply “that latter it had been left by the marine police”.
Now lets go to page 81. Forensics for the prosecution describe the torch as the back having red-ish stains and spatter pattern. This is the same description as he does for the rest of the blood found on the Four Winds.
Page 92. Torch samples removed and at page 93 “I observed red-ish brown stains on the rear of the torch”.
Now, lets look at the time line and ‘address the question’. If this torch has Bob Chappell’s blood on it, the question is how did it get there? If this torch belongs to the Marine police then who does it belong to? etc,etc,etc?
Lest my mention of Paul Conde’s having seen the dinghy four and three quarter hours before sunset be confused with Peter Powell’s ‘non sequitur’, I rewrite the following sentences, adding Peter Powell’s name in place of ‘he’:
When Paul Conde saw a dark grey dinghy alongside the Four Winds, at 5 minutes to four, in the height of summer, with daylight savings, it was some four or five hours before sunset – hardly dusk or darkness.
Peter Powell, in his interview with Eve Ash, went on to make the following statement, which in my view should be remembered as indicative of what was wrong with the police investigation:
“I guess the important thing is that nobody else came forward to say ‘I was out in a dinghy’, and if they were out there for legitimate purposes, why wouldn’t they?”
Stephen and Garry – wow! What great observations. If I recall correctly, Barbara Etter’s blog for many years had heaps of similar observations. Alas, that blog is no longer on the internet, I believe.
In NSW where I live, after the Wood Royal Commission in the 1990s, there was a shortage of detectives, so the training time to become a detective was halved. When I look at the nature of the Xie and some other (but not all) investigatIons in NSW this century, I wonder if the training time was ever returned to its original length? If not, I think we have a problem here.
In Tasmania, some of us wonder if detectives are trained at all in many vital aspects of their job, such as keeping an open mind, not falling into the tunnel vision trap, not selecting a suspect then managing the “evidence” to make that suspect look more guilty etc. I guess such things are not part of their training.
I just thought it’s worth raising the point that training of potential detectives might be a problem in some states.
“the matter could not proceed in August due to the spike in COVID19 cases in Victoria, which would impact on the ability of counsel to travel to Tasmania.”
This is disgraceful. The wheels of justice dont stop turning because there is a pandemic on. We dont stop emergency services doing their job at this time. The court system is an adjunct to the enforcment system, you cant have one if the other lags behind. That is just unfair to people caught up in the system. Sues case should be treated as an emergency since Vass came forward 18 months ago.
Our beloved gubmint’s staid old system creaks along at snail’s pace. Australia a progressive country? Pfft, spare me the rhetoric.
Sooner or later Sue will be found not guilty, no doubt about that. I think the Tasmanian DPP should stop relying on their circumstantial case and at least look into all the other factual matters that have been researched by her defense. Common sense says she must win this appeal.
Does Sue have to wait for a vaccine for Covid19 to be developed before her appeal can be heard? On April 9 I posted the following:-
“All interstate participants could be tested for the virus before flying to Hobart, given exemption from isolation as essential workers, be housed at the Intercontinental and practiced social distancing during the appeal in a closed court.”
What happens if the current situation in Victoria is replicated in NSW or other states where participants in this appeal reside? How long will it be deferred?
We have to assume that this virus is with us for the long term and that life must go on using creative strategies for the legal system to continue to operate in a timely manner.
My comments on April 9 are just as pertinent today if not more so, therefore the question for the political and legal class in Tasmania remains;
how long must Sue wait for have her appeal heard. Over to you Mr Premier. And don’t blame the virus, surely you can walk and chew gum at the same time when a woman’s life is at stake?
Of course. If only those responsible for the course of action had the will, the imagination … or ears with which to listen.
Sue has every right to be heard and I know that courts in the USA are still hearing cases by phone, Zoom Conference, etc. The possibility that Sue could be denied this hearing because of Covid 19 is pathetic to say the least. She is innocent and to put off this hearing would be further injustice to an already wrongfully incarcerated woman. Hearings can be held remotely and therefore safely. Sue needs to be home ASAP. The lack of training the detectives received is no excuse because when they had an opportunity early on to re-look at evidence (both new and old), they chose to ignore the evidence and threaten witnesses and interfere with those still gathering evidence and worst of all… they threatened witnesses and sought witnesses out for arrest to scare them and shut them up. Who the hell are they? Sounds like the mob. They need to be fired and charges should be brought against them for the laundry list of crimes they have committed in this case. Also, their prior cases should be investigated. The training of new officers should be mandatory and current officers should be retrained all over again. You don’t get to say sorry and think that’s good enough. Shameful. I would charge each officer complicit and give them the prison sentence Sue received. They should be doing her time.
True, previous cases the bent ‘experts’ worked on should be looked at as well, often there are patterns. Watch The Staircase on Netflix (not a promo for them), about Michael Peterson’s case against North Carolina, it’s a shocker of injustice and deception by key witnesses!
To think millions are spent on such cases too, so perhaps the bent ones should simply pay for them instead of going to prison and costing us more money.
Perhaps Sue wants the chap who will lead her appeal to be physically present in court.
Release Sue Neill -Fraser NOW.
ROYAL COMMISSION TASMANIA.
I hope and pray all advocates for justice of the upper echelon in society including retired and serving judges, and senior legal practitioners, Federal Justice and Government, support a Tasmania Royal Commission.
It is all so frustratingly slow. We can appreciate the difficult scheduling dates with the legal teams and the court made especially worse with covid re emerging in Melb. the worst roadblock of them all, right at crunch time with the appeal organized, ready to go (almost, with a couple more things to file to the court). But it has been 4 years already just to get to this point with the appeal! That has got to say something about the way things are done in the court process. A process that is unncessarily costly even for the seemingly bottomless pockets of the state, which to my mind is a senseless waste of taxpayers money. Bring on a Criminal Case Review Tribunal where all information and evidence can be looked at properly not fought over on each point in the current adversarial system that is woefully inadequate in truth finding. The continual delay and mucking around, going on and on and on is always to the advantage of the state/ prosecution to ignore the truth. Time for change and the time is NOW!
A few points on various of the comments:
1. Justice Wood resisted Neill-Fraser’s Counsel’s suggestion that they abandon the August date. Mr Smallwood, who appeared for Neill-Fraser, is Victorian based, as is Paul Galbally, who is also connected with Neill-Fraser’s defence. Mr Percy QC, is from WA. Justice Wood, while acknowledging the spike in Victoria’s corona virus cases, suggested that it may be premature to ‘vacate’ and floated 3 scenarios:
a) That by then the Tasmanian border might be open without the two week restriction;
b) That by then Tasmania might be open to all states barring Victoria, and
c) That Tasmania’s borders might not be open to any state.
If I understood the above correctly, scenarios a) & b) would enable Mr Percy to appear in person and I think Wood J asked whether on that basis the appeal could proceed with the Victorian defence counsel participating via video-link, if needs be. The DPP, Mr Coates and his colleague, Jack Shapiro, are Tasmanian based. I think that there may also be other complicating factors (other than covid-related travel restrictions) at play for these pro bono lawyers: e.g. Mr Percy’s involvement in matters in WA, and possibly a legal case that could involve Mr Smallwood during August.
2. I think that Sue will be eligible for parole perhaps from 20 Aug 2022 (13 years from the date of her arrest. However, some are worried that parole might be denied her unless she admits guilt. She has steadfastly maintained her innocence.
3. There can be no bail application (in my view) for someone convicted as Sue has been. Tasmanian law does not allow for bail-while-on-appeal except for an appeal made on a question of law. Sue’s appeal is made on ‘fresh and compelling’ evidence. I have written to the Attorney-General recently, asking her to introduce into the Parliament a Bill to amend the Criminal Code Act 1924 to allow for bail in the case of leave being granted to make a second/further appeal against a conviction on the ground of fresh and compelling evidence.
About time someone writes a sensible comment on this blog regarding Sue’s appeal.
Garry doesn’t blame Justice Wood but offers a realistic opinion based on facts that Sue’s legal team is entirely from outside Tasmania and is entirely pro-bono.
Yet another devastating blow to Sue Neill-Fraser, her family and her supporters. How long can this go on?
I just knew this would happen. Judge Wood and the rest (edited), would be happy for Susan to die in prison! THEY CANT AFFORD FOR THE TRUTH TO EMERGE. Hang in there Susan. X
So true they don’t want the real story to emerge as it would cost Tas too much, but bad luck.
Meanwhile, the way to have these things handled in future is to have bent cops & officials simply fined (not jailed nor even convicted) as nothing hurts more than the hip pocket nerve! Bet it will change things!
And surely Sue will be eligible for parole soon!
The tort of misfeasance is possible for public officers if you can prove their actions were malicious or reckless.
The recent meat export case was on that issue- did the minister and ministers department act lawfully?
Though I am perplexed why the taxpayers are carrying the van as I thought the tort was personal- ie it comes out of personal pockets!?
You do have a point: several reputations are at stake.
Given Justice Woods “enthusiasm” why no bail application? This women has served a significant volume of her sentence!
I will be 83 years of age this Christmas and come from a wretchedly torn society with not many excuses for itself but here we are a modern “educated”, civilised and professedly humanitarian nation full of self-pride and with even a tinge of arrogant complacency but we have touched rock-bottom this time.
Does “beyond a shadow of doubt” cease to apply after the verdict is in?
Sue will soon be eligible for a parole hearing but why wait that meagre amount of time?
Now it is the virus that’s the problem, or should that be “another” virus?
And when November rolls around what happens then if there is a further Coronavirus spike ? Surely acceptable arrangements can be made to prevent further outrageous delays? Susan Neill Fraser has waited far too long already….. Enough is enough!
Many share your frustration…. public pressure is the only thing that may have any impact on Tasmania’s politico-legal system.
Hi Andrew
Could you please explain to me why the latest appeal by Sue Neil-Fraser keeps getting moved.
Rodger Warren
See the story above …
The judge is hoping the August can proceed.
She may be genuine on that.
With a witness admitting to and identifying the killer I would Say Sue’s release is in the bag.
Someone should be sued for this.