Marking 11 years since her arrest (August 20, 2009) and while awaiting the oft-delayed start of Sue Neill-Fraser’s further appeal against her conviction for the murder of Bob Chappell (now scheduled for November 2, 2020), we publish the transcript of the closing submission of her defence barrister, (the late) David Gunson SC, as a case briefing for those not familiar with it, but also as an opportunity to re-examine the various elements that give rise to serious concerns about the safety of the conviction.
This submission to the jury (emphasis added) should be read in the context of the crucial role of the DNA found at the crime scene and matched to then 15 year old homeless Meaghan Vass, who finally admitted she was on board Four Winds in the very public forum of Channel 9’s 60 Minutes, on March 10, 2019. Prosecutor Tim Ellis SC dismissed the DNA evidence, telling the jury it was “a red herring”.
CLOSING – MR GUNSON SC: Thank you, your Honour. Madam forewoman and members of the jury, it might be helpful if at this stage I give you an impression, if that’s the right word, of my view of my learned friend, Mr Ellis’ address to you; it was one based entirely on suspicion and nothing else. In this State nobody can be convicted of a crime that rests – where the evidence rests on suspicion. If that was the lawful base for a conviction for a crime the gaols would be overflowing. The Courts require an exacting standard of proof, which will be discussed with you later today and by his Honour tomorrow, and you must decide this case on the evidence based on that exacting standard of proof without being, and I use the term loosely, suspicious and relying on suspicion.
You hold Ms Neill-Fraser’s future in your hands today and you have a solemn duty to discharge in accordance with the oath that you took at the beginning of these proceedings and let me remind you of that in substance. You either swore an oath or affirmed to decide the case according to the evidence. That oath says nothing about suspicion. When I was listening to Mr Ellis’ address to you this morning halfway through I wrote myself a note and what I said in it was this: It’s an address that was redolent with suspicion and lacking in facts and an address which has conveniently ignored the evidence that clearly shows the accused is not guilty.
Now as that address went on, and I listened with great interest to Mr Ellis, as I’m sure you did too, I added some other adjectives. They were these, and I’ll talk to you about each of them, cynicism, sarcasm, fantasy and misleading coupled with an element of hypocrisy. Let me tell you why I say those things. You may think that’s a harsh comment to make. Fantasy, the way in which he belittled the DNA evidence relating to Meaghan Vass, pure and absolute fantasy. He would have you accept that somehow, magically, perhaps by the DNA pixies, this DNA arrived on the deck of Four Winds, or was perhaps trampled there in circumstances which he couldn’t really explain. He started to suggest that perhaps it had been put there out at Goodwood, conveniently ignoring Ms Vass’ evidence she’d never been there and then I thought backed away from that one, and I think at the end of the day it was a situation, ‘well, we really don’t know how it got there’. But it is pure fantasy to suggest that it was somehow trampled on board. If that was the case, you’d be surprised at – you wouldn’t have been surprised to learn that half of Hobart’s DNA wasn’t found on the deck, having been dragged on there by the feet of various people who went on board. Hypocrisy, the laying of false trails, Mr Ellis was very happy during the course of his submissions to suggest that false trails had been laid by the accused, false trails had been laid by me, which would lead you to basically reject her case.
Let’s think about that. You can probably link in disingenuous here as well, hypocrisy, disingenuous, misleading, false trails and the first false trail to be raised in this address to you was the suggestion that the grey dinghy had suddenly obtained or been elevated to some level of importance during the course of the case that it never had before and, of course, Mr Ellis wants you to believe that grey is white and white is grey and clearly it’s not. And the fact that the grey dinghy has always been a factor never appreciated by the police and never appreciated by Mr Ellis I suggest is clear, and you’ll find the fact that the grey dinghy has been an open issue in the evidence. You’ll find it referred to in P29 which is the statutory declaration by Mr Clark, and you might remember Mr Clark was a passenger on Mr Conde’s yacht, and when Mr Conde sailed past at about 3:55, Mr Clark and Mr Conde saw a grey dinghy. So we know Mr Conde saw a grey dinghy. He told everybody. That’s no new news – there’s nothing new about that – sorry about that – there’s – we know Mr Clark saw a grey dinghy, so it’s always been there and, more importantly, we know that the young lady or the lady described as P36 also saw a grey dinghy. So when Mr Ellis says to you as he did: ‘Look, this really only arose during the trial and it was seized on with great alacrity by the defence” – these are my words – “and you should really reject it because grey means white and white means grey – they’re all the same thing’ – that’s just nonsense.
Now talk about laying false trails; he wants you to believe that before we came to Court that nobody knew anything about a grey dinghy, that it just popped up in this trial and conveniently became an issue – it did not it has always been there. And the same comment about false trails can be made with respect to the DNA evidence; it’s there, it’s always been there, it didn’t arise through my cross-examination. You will remember that when the first forensic report came out – and you will have a copy of it – item 20 in that forensic report refers to a person, a female “E”, it’s referred to by the letter “E”. Now subsequently, as we know, Ms Vass committed a criminal offence, her DNA was taken, it went into the DNA database and the computer said, “Ah ha we have a match, this is person E” – so it’s always been there. So there’s no suggestion that the DNA issue was an issue raised by the defence, it was raised by the prosecution. The grey dinghy has been raised by the prosecution.
But you see, it is necessary, and I understand why Mr Ellis has done this, it’s necessary for him to describe that grey dinghy as white and to try and convince you you’re all as colour blind as he is, apparently, to believe that grey means white and white means grey, and for him to dismiss Meaghan Vass’ DNA evidence as a ‘red herring’ because he knows full well that these issues have irretrievably damaged his case.
Now if something apparently doesn’t suit Mr Ellis’ case and he doesn’t like it, then it’s immediately labelled a ‘red herring’ – ‘it’s a red herring or we don’t like that – the grey dinghy is a red herring, we don’t like that, what a horrible red herring that is – chuck it aside members of the jury, ignore it’. Well if you do that you’d ignore your oath. ‘Chuck aside the DNA it doesn’t fit my case and I’m sorry it’s here but just ignore it, it’s a red herring’, and I would suggest to you that Mr Ellis’ fascination with red herrings and to describe any evidence that he doesn’t like, which doesn’t suit the prosecution case, is singularly unhelpful to you as members of the jury, when setting about determining this case.
Now he criticised me in his opening for saying to you in my brief opening words twice, “if indeed he is dead”. There was nothing sinister in that, it wasn’t a red herring and as his Honour will tell you, and as Mr Ellis knows full well and knew full well when he made that submission to you, one of the things he has to prove in this case is Mr Chappell’s dead. Now if you’re not satisfied about that that’s the end of the matter. I’m not going to suggest to you one way or another what you should find but if you’re not satisfied about that that’s the end of it so it was perfectly proper for me to say, “if indeed he is dead”.
Now in his closing address Mr Ellis said many things to you over a period of about two hours, the total time he devoted to what we say are the critical issues in this case, which are the existence of this grey dinghy and Meaghan Vass’ DNA, was about two minutes. Now I’m going to have to take you through those and tell you things about them and I’ll do that in due course. Now Mr Ellis also was extremely critical of Ms Neill-Fraser’s interview techniques. He said that she prevaricated, I think that’s my word, asked questions of the interviewers and according to him tried to extract information from them which would enable her to answer the questions. Well I submit to you that when you look at those interviews, which are about eight and a half hours, that you’ll find those sort of comments extremely unfair, unjustified and totally unreasonable. Everyone of us is different, everyone of us when asked questions in interviews like that would approach it a different way. Some of us might sit there and just listen to the questions as they’re asked and give answers. Some of us might give short answers, some of us might give long involved answers that take sometime to give, some of us might ask for more information so we can properly answer the questions. Now all she did was that. You may think that she was a bit garrulous through the interview or interviews, some people are, some people aren’t, some people ramble on, some don’t. So what the Crown does is says, “Wow, we have to look for something, we have to try and find something to show that she’s guilty, so we’ll seize on her interview techniques and criticise her about them and we’ll criticise her for not being responsive to every question that was put.
Look at some of the questions that were asked when you look at those interviews, look how some of them were short, some of them were long, some of them were involved, at no stage did you ever see the police interviewers try and stop her from answering the questions or in many instances they provided additional information.
Now Mr Ellis’ submission seems to depend or to be devoted to a word by word analysis that everything she ever said from the 27th January onwards right up until this Court should be dismissed, that you should analyse every sentence and every word and that you should find in some way they be interpreted as evidence of guilt. A sensible and less biased analysis of what she said in my submission will not lead you to the conclusions urged on you by the Crown.
You know, some elements of fantasy came out in Mr Ellis’ address and real example I noted was this issue about the four winches on the roof of the wheelhouse. Now when asked how she would remodel the yacht to make it easier for sailing with two people she said, “Well one issue that was discussed and never was a firm plan was to put the four winches on the roof of the wheelhouse”, which apparently was steel. There was some discussion about whether it would be strong enough. Now what you get is an effort from Mr Ellis this morning to say, “Well this just would’ve been absolute nonsense because it’s a bit like putting four winches on top of your house and – oh sorry, on top of your car and rigging it with sails and we’d all know where the sails and the car would go to, it’d just lift the roof off”, but you know, it’s pretty obvious he knows nothing about sailing. I don’t pretend anything either but I would’ve thought before you’d make such a submission like that you might want some evidence about the strength of the wheelhouse roof, what it was – what type of steel it was, whether reinforcing might be needed, – you see it’s very easy to make those sort of submissions and throw them to you and let you try and digest them and someway find that’s evidence of a guilty mind.
Now while his Honour is going to give you in due course some very clear directions as to the law in this case, which you must follow, nonetheless, it’s appropriate that I tell you a little bit about the law so that you can understand the legal principles that are applicable to this case while I go through the evidence with you. The first is this; that an accused person is deemed to be innocent of the charge preferred against that person until the guilt of the person has been proved. The second is that for an accused person to be found guilty of an offence, a jury must be satisfied beyond reasonable doubt of that person’s guilt. And if a jury is not satisfied beyond reasonable doubt, then the jury, true to their oath, must acquit the accused person of that charge. This means that you do not approach the task of deciding the case by regarding certain circumstances as suspicious and being satisfied that they are suspicious and thereby, convicting the accused – that approach would be wrong. It doesn’t mean that you say to yourself, ‘Oh I reckon he’s guilty’ or ‘she’s guilty’ it doesn’t mean that at all. You are required to analyse the evidence and to look at the competing arguments that are presented to you with respect to that evidence. You are required to draw the appropriate conclusions that are available on that evidence, and it’s only when you’ve done all of those things and discussed them amongst themselves, and when you are satisfied beyond reasonable doubt that you can convict the person. That requirement ‘beyond reasonable doubt’ is a very onerous one, and beyond reasonable doubt means precisely that. If you are not satisfied beyond reasonable doubt then you are obliged to acquit the accused.
Now there’s another principle, and I think his Honour’s already touched on that at some stage; throughout this trial process the onus rests upon the Crown to prove the guilt of the accused person beyond reasonable doubt – they carry the onus of proof. At no stage in the proceedings does this onus of proof shift to the accused. Mr – in this case, Ms Neill-Fraser does not have to come to this Court and prove her innocence to you. That’s reversing the onus of proof. The onus of proof rests on Mr Ellis and Mr Shapiro who represent the Crown throughout. Now Ms Neill-Fraser was entitled at the end of the Prosecution evidence to remain silent if she wished to do so and not to give any evidence in her defence at all. That is her right. She could have said through me in the course of my address, ‘look, she didn’t need to give any evidence, her position’s been made clear in the lengthy records of interview of about eight and a half hours, she’s consistently denied the crime for which she’s been charged, she’s consistently said to police officers ‘I’m not responsible for the death of Mr Chappell, and I’ve consistently said I wasn’t the person in the dinghy seen by Mr Hughes’. And you would have eight and a half hours of video material, you’d have her written statements all of which are to that effect. However, she is entitled if she wishes to do so, and she did in this case, to give evidence on oath. So what’s the consequence of giving evidence on oath? get cross-examined. So if she’d remained silent, the Trial Judge would have directed you that you could not draw any inference adverse to her because she remained silent. In other words, he’d say, ‘just because she didn’t go in the Box, you can’t draw an adverse inference about that, she’s entitled not to go there’. She made the decision to give evidence and she gave evidence in her own defence.
Now this is a circumstantial case and a circumstantial case is quite different to a case where there is direct evidence. Here, as is clear, there’s no direct evidence of the Accused’s involvement in the disappearance of Mr Chappell. There’s no direct evidence the accused is responsible for the presumed death of Mr Chappell. Simply put, circumstantial evidence is evidence of a basic fact or facts from which the jury is asked to infer a further fact or facts. Circumstantial evidence is evidence which proves or tends to prove a fact or a set of facts from which the fact to be proved may be inferred, in this case the fact to be proved is the death of Mr Chappell and the responsibility of the accused. However, in a circumstantial case, circumstantial evidence can only prove in this case the death of Mr Chappell and the accused’s responsibility if and only if all other reasonable hypotheses are excluded. Now what that means is this, simply put, if there are reasonable other hypotheses open, the Crown must exclude them and you have to be satisfied beyond reasonable doubt that those hypotheses are not open. Now to be a reasonable hypothesis it must possess some degree of acceptability or credibility, it can’t be one that’s obviously fanciful, impossible or incredible or too remote or too tenuous, so a reasonable hypothesis.
Now the Crown case, as opened by Mr Ellis, was on the basis that the accused had been out on Four Winds at least as late as 3:55 on the 26th January 2009. As I’ve said the colour of the dinghy, or the tender, is nothing new in this case, it’s something that’s been known to the defence since we got the statements and presumably known to the prosecution since they read them, and, as I said, P36’s statement taken I think in October of 2009 amplified dinghy issue. Of course the dinghy has taken on importance in the case, it was always going to do so, however you would be forgiven for thinking that that might not have always been the case.
First of all we had Constable Sinnitt on the 5th February 2009 telling the accused at her home that a dinghy had been seen at Four Winds at 3:55 and for reasons that I suspect are quite clear he concealed, and we say deliberately concealed, and we don’t shrink from that, telling the accused that the dinghy wasn’t hers but it was a grey one and presumably that didn’t suit the police scenario at that time. And not like, of course, Detective Conroy forgetting to put Mr Lorraine’s description of the dinghy in his statement.
Now that the dinghy was going to take on importance in this case is clear, Mr Ellis said to you in his opening of the case for the prosecution on the 21st September, he said this –
Anyway we’re back to the 5th February, so those two detectives visited and they got some further background material, they made notes, she’s pretty much as before. She said that when she’d been on board on the 26th she’d got in Bob’s way and there was a row, that he was snapping, he wanted her to take off.
Then he added this:
Now by this time some witnesses, Paul Conde and Anne and Thomas Clarke, who you’ll hear from.
I just pause to make the observation, well that was quite incorrect, because when you look at P29, which is the statements of Mr and Mrs Clarke, they weren’t even taken until the 31st August 2009, so that part of the opening’s wrong.
He told police that they’d seen Four Winds on the mooring at four o’clock in the afternoon on the 26th and an inflatable dinghy had been tied up alongside at the port side. As the water was choppy they noticed it, it was moving around a lot. When these detectives on the 5th February put these observations of witnesses to Ms Neill-Fraser her story shifted, and you’ll hear this isn’t the only time that her story shifts when other evidence inconsistent with it is put to her. She said –
And he stopped, he didn’t tell us what she said, then he went on and said – this is his observation:
I mean obviously given that there was a dinghy alongside it she must have still been on board and that she’d stayed there longer than she thought, so –
What she said was that she’d tied the tender to a ladder at the Royal Hobart Yacht Club, so what Mr Ellis has done, he’s put the dinghy in that context immediately by saying to you in his opening, “Well it was obvious, wasn’t it, it must have been her alongside”. Now that’s the track that has been opened in this case by the DPP and it’s similar to the one adopted by the police.
Now let’s just analyse Mr Ellis’ opening comments I read out to you a moment ago because you’ll immediately appreciate that he left out in his opening any reference to the dinghy being large and grey, as observed by Mr Conde, and as I said already, he was quite wrong about suggesting at that stage that Anne and Thomas Clarke had told the police about the dinghy because that’s just not right, and I’ve said look at P29 and you’ll see what I mean. They weren’t even interviewed until the 31st August. In any event it was only Mr Clarke who described a grey dinghy, and not Mrs Clarke. So to this extent Mr Ellis’ opening had the capacity to mislead you, but what is important about his opening is not so much that it had the capacity to mislead you in that paragraph that I read, but because what he said of course is not evidence in this case, he simply in my submission had no real appreciation of the relevance of the grey dinghy or where it was going to fit into this case.
Now obviously, I’m going to have to say much more in due course to you about the grey dinghy issue, but I want to start reflecting on the issue now. You might think it was amazing, if not appalling, that the police consistently ignored the fact that the dinghy sighted at Four Winds at 3:55 by Mr Conde was grey, and as we now know, failed to answer the description of the dinghy for Four Winds and was nothing like it. Whatever Mr Ellis tries to do in this case, you can’t convert the white Quicksilver blue trimmed dinghy into a grey one – he’s not a magician, but he tried to do it. He criticised the police photographs at one stage when it was pretty obvious that white wasn’t going to be grey and grey wasn’t going to be white, by saying ‘Oh they’re washed out, they’re washed out’ you know ‘bad light or something’ you know ‘not good photographs’. But of course if you go to the family snaps you’ll see they’re – it’s a white dinghy.
Now there’s no doubt whatsoever that at 3:55 on the 26th of January another dinghy was alongside the Four Winds. It wasn’t the tender from that boat. What we know now and what clearly the police did not know until as late as last week, when they finally got around to doing that which they should have done, was, it was a large one, large in the context of rubber dinghies, it was grey, it was described by Mr Conde in his later interview as a commercial type, pointy nose, beamy, lee-clothed bowed rubber boat.
Now when I said earlier disingenuous, I had a little note to say, ‘pointy nosed’ – mm, and Mr Ellis got out for you this morning the photograph of the dinghy of Four Winds, which is a very blunt nose which is about the beam or the width of the dinghy and said, “Ah look at that it’s pointy”. Well if you’re going to fall for the two card trick, he wanted you to do it – it’s not pointy – not point at all.
Now – and Mr Clarke, of course, has also described it as a grey dinghy, he said it was a grey – “a small grey coloured tender tied to the side of the boat, I think the tender was probably inflatable, I cannot be sure”. Neither Mr Clarke nor Mr Conde at 3:55 saw anybody on the deck. Then we go to the witness who’s been called or loosely referred to, probably inaccurately, as P46 because that’s the exhibit number, and let me remind you of what that witness had to say in her statement. It was agreed that for reasons that need not trouble you that rather than this witness being called that her statement would be read out in Court and form part of the evidence, and she said this:
On Australia, 26th of January 2009, I was sailing as a guest on a yacht on the Derwent River in company with friends I prefer not to name. We were motoring in a north-easterly direction from the area of Wrest Point at a minimum speed of turning yachts. We were motoring quite close to moorings on the Sandy Bay side of the river and I was keeping an eye out for unattended moorings so that we wouldn’t hit any. I had binoculars on the boat with me. As we motored towards the Battery Point direction, I noticed a striking, different sort of boat. It was white in colour and it immediately caught my attention. The boat was attached to a mooring on the outer line of the moored boats. We didn’t motor in and around the boats. We passed the outside of them. In doing so, we came to within approximately fifty metres of the Four Winds.
Critically, she said this:
I viewed the boat through my binoculars from the first time I noticed it because it was such a lovely boat. I saw the name of it clearly as Four Winds. I can’t be sure but I think that it was written on both sides of the bow of the boat. I didn’t see anybody on board. The boat was facing in a general direction down river as we went across its bow, probably pointing towards south south-east. Attached to the stern of the portside by about four or five feet of rope but floating a short distance from it was a grey inflatable dinghy. The dinghy was tightly inflated. It was a large, mid-grey dinghy and I did not notice any outboard motor on it. My view of the dinghy was with the nose of the dinghy pointing slightly towards the bow of the boat. It was pretty much a bow-on view and it had a squarish nose and looked to be in good condition. The front of it was sitting out of the water slightly.
We passed the Four Winds across its bow and I was particularly struck by the beauty of the boat and I didn’t take my eyes off it from when I initially noticed it. It was different to others in the area in that most of them are modern boats and Four Winds is more a traditional boat. One of the guests on board the boat with me commented that Four Winds was sitting low in the water.
She goes on then to describe the day and she said observed the Four Winds at about 5:00pm.
Now in addition to that there’s the evidence of Mr Lorraine who saw a dark coloured dinghy behind Four Winds at about 5:00pm. He described it in his evidence as somewhat dark in colour and small. Nobody explored with him what was meant by ‘small’, and I think he said it reminds you of somewhat of a coracle he’d seen somewhere in England or the UK in his youth. Now according to Sergeant Conroy, under re-examination by Mr Ellis, Mr Conde had said to him when he was reinterviewed on the night of the 5th October of this year the dinghy was about 10 to 12 feet that he had seen.
Now one of the things to be noted immediately despite Sergeant Conroy disavowing in this court, as indeed he would, that Ms Neill-Fraser was his only person of interest in the investigation you might quite reasonably wonder why neither he nor Detective Sinnitt, or indeed any other police officer, did not make further enquiries at this stage. You may wonder why they never told the accused it was a grey dinghy there being seen. You may wonder why they led her to believe for the purpose of setting the timelines and so forth that it was her dinghy out there. And they also knew about Mr Lorraine’s evidence at this stage and as I said they didn’t bother to interview Mr Clark until many many months later who also confirmed the existence of that dinghy. You might think this is a significant omission by the police. We say it is, and we say this to you, that had the appropriate enquiries been made that perhaps the ownership of that dinghy could be identified we would find out, or they would find out, who had operated it, they would find out who was out there on the boat, clearly at 3:55 and clearly at 5 o’clock, you have all of these witnesses saying a grey dinghy was there. If the police were genuinely trying to identify who might have been responsible for the disappearance of Four Winds, why didn’t they take these steps? Why didn’t they tell the accused about the grey dinghy and try and get some input from her, if any, into it – bear in mind they’re – she’s a person who has been there on that water area for some weeks on a daily basis for doing work on the boat and so forth – why didn’t they properly question Mr Conde, who was obviously possessed of a significant amount of information? Had they questioned him early and asked him the simple questions that I asked him in this Courtroom, and which Mr Ellis asked him, then we would have had a more fulsome – they would have had a more fulsome description very early on and they may have looked elsewhere. Why didn’t they raise the existence of the grey dinghy at the later meeting at the Royal Yacht Club or the Derwent Sailing Squadron? Why didn’t they put out a press release seeking information from the public about the grey dinghy? They did it with just about everything else, you might remember, there was evidence about press releases, and it would have been very easy to enlist the assistance of the media by saying ‘Look, we have this fulsome description of a grey dinghy given by Mr Conde, if anybody recognises it come forward’ – and bear in mind, Mr Conde said he thought it was a commercial type grey dinghy, and he said, “It was a bit faded”.
Now under cross-examination Sergeant Conroy made a number of concessions, I submit, which you will find helpful, and were reasonably made and properly made by him in light of these failings. First of all he never recorded in Mr Lorraine’s statement Mr Lorraine’s account of the dinghy being ‘white’ish cream to yellow’ and Mr Lorraine, of course, said in this Court it was ‘dark’ – yeah Mr – Sergeant Conroy’s late revelation of this admission precluded me from cross-examining Mr Lorraine about this at all, because he didn’t know about it. He tried to say it was too late to correct the admission when he realised he hadn’t put the information in the statements because the file had been submitted within the police chain of command, and that was going to be his bland answer, but he was pressed on that, and when pressed he said he knew full well that he could deliver at any stage a supplementary proof, either himself or Mr Lorraine, I suppose, and simply didn’t do it. And of course, we know supplementary proofs or statements were taken because we have Mr and Mrs Clarke’s statement in August and we have P36’s statement, which was made on the 28th November 2009, so it was just a nonsense for Sergeant Conroy to suggest he couldn’t have, as it were, submitted a supplementary proof by this Mr Lorraine. He could have, he admitted, gone back to Mr Conde and narrowed down the issue about the grey dinghy and he now accepts in this court room all this time later that he should have done that. Now the detailed information, as you will recall, about the dinghy was elicited by Mr Ellis in re-examination and what he elicited in re-examination were two important things. You might remember no doubt with a flourish that he used he produced the photograph of the dinghy and said to Mr Conde in the witness box, “Have a look at this, that’s the grey dinghy, isn’t it”, and Mr Conde said, “Oh nothing like it, absolutely not it”, and you might have noticed the way Mr Ellis sort of stood back and went, “Oh”. Then Mr Conde, I think, added something about it had a lee cloth and I was allowed to ask questions about that and we had the very detailed description then of the lee cloth and its role and the pointy bow and all of those things.
Now remarkably Sergeant Conroy claimed that Mr Conde’s evidence initially wasn’t a highlight, but you would have thought ‘large grey dinghy’, let’s compute that, how does this fit in with a white, blue trim dinghy, it doesn’t. And it would seem that the statement was just taken by somebody, accepted, went on the file, I suggest, and nobody bothered to think through logically what did this all mean. In our submission it cried out for further investigation and it should have been investigated and when I pushed in cross-examination with Sergeant Conroy he accepted that it was a reasonable conclusion as a result of Mr Conde’s evidence as given in this Court and expanded upon that it was reasonably possible that somebody else was on the boat when Mr Conde saw it at 3:55. That was the concession made by Sergeant Conroy.
Now remember what I said about reasonable hypotheses. You’ve got the police officer in charge of this investigation belatedly accepting the proposition that that evidence from Mr Conde could reasonably mean that somebody else was there at 3:55. Now that was a fair concession made by him. He also accepted in light of the other evidence which is P36 that, and of course, Mr Lorraine, that it was a reasonable conclusion that someone else was on the boat at 5 o’clock.
Now I must say I had some difficulty understanding where the Crown was coming from at the end of the day in all of these red herrings that Mr Ellis was talking about, but I got the distinct impression and if I’m wrong then I apologize, but I got the distinct impression the latest theory advanced by the Crown was that some time during the afternoon of the 26th that the Accused had committed murder on board the boat, gone home and when she got the telephone call that night from Richard King that that in some way propelled her to go down to the boat to, as I recall it, take the body away and have a burial at sea. They were the words he used, ‘burial at sea’. I really didn’t understand that. It seems the case has shifted, but that’s a matter for you.
Now Sergeant Conroy made a further comment which I suggest to you is one that you will take on board and think about. He said he believed that he had adequately covered the question of the dinghy at that time. Now the time he was talking about was the time they were investigating. When asked was he so confident now, he said, no, he wasn’t and he admitted, to use my words, the trail was cold. Well very cold indeed, and it’s very sad indeed that the Accused is facing trial in this Court on a murder charge because the police can’t tell the difference between white and grey and did not or would not recognize the possibility that persons other than the accused were on Four Winds late in the afternoon of the 26th of January.
I am glad Mr Ellis actually raised with you the question of that photograph with the little dogs in it. There’s no need to look at it now, but I’d also urge you to have a look at it when you’re in the jury room – I agree with Mr Ellis, if you look very very closely, and sometimes it’s difficult, depending on the light, you can pick up the rust stains coming down the side of the yacht, and you’ll see those in other photographs. It does seem that there is something there at the stern, and that’s the spot where the other persons saw the grey dinghy, and of course the witness P36, in her little sketch which is attached to the statement she made, looks a bit like that, she has the dinghy right at the very stern, and it’s a matter for you whether you can pick up something in that photograph. I don’t disagree with Mr Ellis that depending on light and depending on the angle you hold it, and how long you stare at it – and it gets worse the longer you stare at it – there seems to be something there. Well, you may find it’s a dinghy, if that’s so, then it means that grey dinghy was there later, I think those photographs, on the evidence, were taken between six and seven that evening. But certainly it’s around about dusk or shortly before dusk.
So you have those issues. So, grey dinghy, there for hours. Who was there? We don’t know. What were they doing? We don’t know.
Now I want to come back to the subject of circumstantial evidence, as I’ve said to you, circumstantial evidence can be used to prove a fact beyond reasonable doubt only if all other reasonable hypotheses are excluded. In this case, the Crown seeks to establish that the accused killed Mr Chappell. So what have you got at this stage already, you’ve got a reasonable hypothesis, other people out there, other person out there – people, it doesn’t matter, we don’t know that’s speculation – but at least one person drives a dinghy and you’ve got the description of it.
Now this is a question that I want to put to you – I put to Sergeant Conroy, and I said this:
Would you not have thought it might be reasonable as a trained investigator for the persons who accompanied the witness, P36, on that yacht to be interviewed?
Because you see, P36, in her statement says she was in the company of friends, she preferred not to name. Now what was wrong with the police going to this lady and saying, “Tell us which boat you were on, tell us who you were with”. If she refused to answer their enquiries well that’s it, they couldn’t beat it out of her or they couldn’t get it out of her any other way, but I’m sure if she was such a concerned citizen as on the 25th November, this is after the accused had been arrested, to come forward she probably would have named them. And he admitted that it would have been a reasonable thing for a trained investigator to approach her – to approach those witnesses, and I said:
That would have been a very sensible thing to do, wouldn’t it?……Yes.
Now Ms Neill-Fraser’s evidence was that she left the boat in the afternoon after she’d been on it for about an hour. We know that she went out there about two o’clock, we’ve got the evidence of the gentleman with the kayak, Mr Liaubon, who in his strange ways of discussing his evidence told you he’d got home, he’d washed his kayak, taken his wetsuit booties off and remembered looking at the microwave on the way through the door and it was two thirty, so he set the time at about two o’clock. If she left at about 3:00 p.m., as she said she did, and tied up her dinghy at the Royal Yacht Club then the following questions arise which should have been thought about by the police. To some extent I repeat myself, I make no apologies for it.
– Who was there at 3:55? - Who was there at five o’clock? - If you find there’s a dinghy tied up to the yacht at about six o’clock to seven o’clock when the dog photographs were taken who was there then? - Whose grey dinghy was it? - How long were those persons – that person or persons there?
– What were they doing on board?
We know that on one view, Mr Lorraine, that Mr Chappell was sighted at about five o’clock by him with the grey dinghy behind and whilst Sergeant Conroy didn’t seem to be terribly convinced at the beginning that Mr Lorraine had seen Mr Chappell he seemed to come around to the proposition that that was right, given where the boat was situated, and I would suggest to you that it almost certainly was Mr Bob Chappell at five o’clock. Nobody reported seeing him being on the deck after that. That of course depends on a finding that you make as to whether you accept Mr Lorraine that it was Mr Chappell, I submit to you you could.
Now a reasonable hypothesis which has not been excluded by the Crown, nowhere near it, not within a bull’s roar, is that whoever was on that boat at that time is responsible by whatever means for the disappearance of Mr Chappell. That is the only reasonable conclusion that is open.
You might ask yourself this question. This Case as we know had widespread publicity. It was on television, it was on the radio, it was in that newspaper The Mercury day after day, front page news. We had the police putting out press releases about the red jacket, and about this and that, the IPERB, and everything was reported. You might think though that if somebody who was perfectly innocent who had no role in Mr Chappell’s disappearance had just dropped in to see him on the yacht in the afternoon of the 26th of January by getting out there in a grey dinghy, might you not think with all of that publicity that person or persons would have come forward and said something like this: ‘police officers, I was there at four o’clock to five o’clock, I dropped in to see Bob Chappell, I knew him or I didn’t him as the case may be, or I went there because it was a nice yacht and I wanted to have a chat to him’. No-one ever came forward. Why not? We say for a very good reason. It’s a very sinister reason. That person or persons are the persons responsible. And as I’ve said to you many times it doesn’t matter how many times Mr Ellis tried to twist the grey dinghy scenario you can’t get away from the fact that Mr Conde’s evidence which he led and which was later amplified by Mr Conroy – sorry, Conde – stressed if not anything or emphasised that it was a commercial-type dinghy, faded, that point he knows.
We’ll compound the problems for the Director (of Public Prosecutions). You’d have Meaghan Vass’s DNA being found on the deck of the Four Winds with no rational explanation as to how it got there. We would say to you this, the only reasonable hypothesis is that at some stage Meaghan Vass was on the Four Winds. It is equally a plausible and reasonable hypothesis that she, along with others, went there in the grey dinghy or by some other means, and she and/or her friends are responsible – or associates, I suppose, as to Mr Chappell’s disappearance. It was hardly likely she would admit any involvement in such a serious matter when questioned by the police let alone in this court but what we do know is this. She can’t account for where she was on the night of the 26th January 2009. She can give and did not give any explanation about that at all. I’ll come back to that a little later. What I want to say to you at this point though is something about motive.
In his opening Mr Ellis inferred there was a motive for the accused wanting to kill Mr Chappell because she’d then be able to inherit from him, get his share of the yacht and be free of him. He pursued the theme very vigorously in cross-examination even down to the point of almost auditing the family accounts suggesting that with the increasing cost of the purchase of Four Winds and the repairs to Four Winds that the relationship was deteriorating to the point where he put it to her, one of these imaginary conversations, Mr Chappell saying, ‘I’m sick of it, I’m sick of it, you know, it’s all costing a fortune, you’re bleeding away the family fortune’, and with that she responded violently. Well I’m not in the slightest bit surprised Mr Ellis articulated the prosecution case in that way because it’s always helpful to have a motive even if it is one that is dredged up out of pure suspicion and speculation and nothing else. As I said to you in opening nobody is convicted on suspicion. So what possible motives could the accused have for wanting to kill Mr Chappell.
Let’s go through the evidence about the relationship. They had been in a close relationship for about eighteen years, she told you it’s been a bit rocky in the first few years but by all accounts thereafter they were getting on pretty well. She’d being living in the house with him for quite sometime, she raised her children there with him as obviously as de facto father, she was well looked after by Mr Chappell financially, she didn’t have to go to work he wanted her to stay home and by the time his disappearance she was getting something like I think five hundred dollars a fortnight or thereabouts to just do with it whatever was necessary. They’d obviously shared a common desire to purchase a yacht for some time, a yacht they could use in his retirement, and she told you about the – and told the police, about how much time they’d spent on trips up the east coast of Australia, I think she said on one trip, dropping into thirty or forty marinas trying to find something with an enclosed pilothouse that would be suitable for use in Tasmania. They’d obviously searched for a number of years. They had in mind what they wanted and obviously expended a reasonable sum looking for that boat – they knew what they wanted. They expended two hundred and three thousand dollars to buy it and obviously had to spend money repairing the engine in Brisbane and the other bits and pieces, and obviously had to spend some money getting the yacht into Hobart by hiring a crew, and in Hobart they continued to spend money.
Now there’s no evidence at all from anybody, anybody at all, that Mr Chappell complained to anybody about having to spend more money than he ever anticipated or that it was getting out of control.
Remember the evidence was this was going to be their shack, albeit a floating one. And anybody who ever owned a shack knows you spend money on it, it’s one of the facts of life.
Now it is clear on the evidence, and it came out in cross-examination of Stevenson and Casson, that there was a lot of discussion about the accused and Mr Chappell, what they were going to do with the yacht, how they were going to learn to operate it, travel around the Hobart environs in the yacht, go down the Channel and things like that, and indeed, it was even conceded by them that Mr Chappell was going to join the yacht at Sydney after he’d got out of hospital in Southport. And I put my question to them along these lines, “Did she not want him to join the yacht?” and he said, “Yes, she did she wanted him there, he wanted to be there as well.” They had discussions about rigging the yacht for the two of them to operate it, to be able to handle it together. As I said, they discussed with Stevenson an ambition to sail the yacht into the Pacific when suitably qualified – and there’s no mystery about that, the consensus of opinion seems to be, obviously, if you’re going to sail a yacht that size you need a crew, keen yachties who will sail with you – you don’t need to pay them, as Mr Ellis suggested, they spoke about using friends and so forth. There were no pressing financial circumstances. Mr Chappell had obviously borrowed the money to put into his share of the yacht through this Viridian line of finance through the bank, which he was going to pay back from his very significant superannuation. The accused had her own independent financial means. It’s a reasonable assumption that given the accused’s mother’s assets that on her death the accused will inherit a significant sum from that source, it’s an assumption you can make. If anything the joint financial circumstances of Mr Chappell and the accused would be enhanced on Mr Chappell’s retirement as he’d have access to a significant superannuation sum either in a lump sum or a significant pension. And more importantly, there’s no evidence from anybody of a bad relationship between them. Mr Ellis dwelt on I think comments that were made that they seemed a bit snappy working on the boat together. Well you might find that, but does that mean there’s a bad relationship. Everybody in every relationship I suppose at some time has exchanged a snappy comment with the other partner, it’s a fact of life. And of course more importantly on the 25th January you had the Bruny Island trip where Anne Sanchez went along and they were obviously getting on very well together and you have her evidence about that as to how they worked cooperatively on board, dealt with the anchor problem that arose, albeit not a significant one, but one that was unexpected, and you have her evidence of living in the house for a few days before the 26th January, before she went down to Bruny Island that afternoon, as to the relationship being a perfectly normal relationship. She observed nothing about them whatsoever, nothing untoward.
Now I would say to you this, and I don’t shrink from saying it. The motives put by the Crown we say are fanciful, they are created by an imaginative prosecutor who’s trying to find motives that are not in keeping with the evidence. The Crown’s motives as I understood them were these: There was a cost blow-out on the yacht, that’s denied by the accused, and cost blow-out, if you can call it that, is not supported by any evidence produced by Mr Ellis. He added up his figures and got to about two hundred and forty eight thousand. So what? She said the budget was two fifty or thereabouts, a few thousand over is not going to be the end of the day, you don’t go and murder your partner for that, you don’t get involved in heated debates over that. And you’ll remember the fanciful conversation addressed by Mr Ellis to the accused in cross-examination which I’ve mentioned already, something along the lines of, you know, Bob says: ‘I’ve had it, had it up to here, there’s too much money being spent, you know, I’m – you’ve got me into this, I don’t want to be here, it’s all your fault these things’. There’s not an iota of evidence about this. We don’t have the officious neighbour listening next door over the fence hearing all of this. This is coming from his mind. It’s made up. He put to her it was her desire to be, and I quote from transcript 1289, your Honour: The envy of Hobart.
That’s what he put to her:
That’s what you wanted to be, the envy of Hobart and because you couldn’t be the envy of Hobart, you were prepared to kill.
And there’s simply no evidence of those matters.
Now when you look at motive, you need to look very carefully at what the true circumstances were. You need to look at the evidence.
When you analyze the evidence, you will not find one iota of evidence that supports the motive theory put forward by Mr Ellis.
Well, let’s think about how you would go about killing somebody on a yacht in these circumstances and the problems you might face one person confronting one other. 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? You didn’t kill them or disable them with the first blow and you’ve got a fight on your hands or you’ve got problems. The person screams out and yells out. You know, when you think about it, cold-blooded murder in those circumstances is almost impossible to contemplate because of the risks attached to it. You’ve got – if it happened during the day, we know that it was a public holiday, we know from the evidence other yachts are going past. What would have happened if a blood-battered Mr Chappell crawled up onto the deck, surely somebody would seem him. If it happened at night, then you’ve got all of those houses in the area, the people looking down from Napoleon Street in Battery Point looking straight down onto the water, all those waterfront houses, you’ve got all the houses along Marieville Esplanade, sound travels. You’d think – you know, it’s a great risk. So you think about somebody planning cold-blooded murder. How are they going to achieve it? How are they going to achieve it perfectly without there being a risk factor at all? On top of that, when you think about it, if you were going to take a dinghy, as has been suggested now by Mr Ellis, out to Four Winds late at night to dispose of a body and to give it a sea burial what are the risks associated with it? Well first of all you’ve got the chance of being recognised down at Marieville Esplanade or down at the yacht club. Bear in mind her evidence was she thought there was surveillance there. There wasn’t, that’s not the point, the point is she thought it was there. Now that’s a matter you need to consider.
There’s another matter to also consider and it is this. If the relationship had broken down to the point that the Crown contends, and there is no evidence of that, then there was no need for the accused to commit any crime to obtain money. You will recall that she’d been previously divorced from Mr Meeker, divorce carries with it an entitlement to a distribution of matrimonial property, this couple weren’t married but equally, as with a married couple, in a long term relationship where the parties have been together for in excess of two years there’s an entitlement under Tasmanian law, an Act called the Relationships Act, to a property distribution. Basically it applies the same principles as the Family Law Act and the Court makes an order distributing money as between the parties where due. The Court makes what’s called a holistic value judgement in the exercise of their discretionary power to distribute property. So she could have applied to the Court, that is the Supreme Court, for a property adjustment.
Now we’ll talk about Mr Triffett for a moment. Ms Neill-Fraser emphatically denies ever having tried to recruit Mr Triffett in the manner in which he alleged; that is that back in I think 1996, and the period before that, that there had been some offer made by her to him to recruit him to kill her brother Patrick and her husband. This was denied by her. We haven’t heard from Ms Hanson who was named because she’s unwell and can’t come to court. Think about this, you might think it would be absurd for a person to try and recruit someone, not once but twice, to carry out the crime of murder, and then many years later in the same community carry out the same type of crime which had been previously suggested – it was patently obvious to anybody that news broadcasts after Mr Chappell’s disappearance had been discovered had made it reasonably clear that a fire extinguisher was missing from the Four Winds – you don’t have to be particularly clever to workout that by implication it was being suggested that perhaps that was used to weigh down Mr Chappell’s body – that evidence was in the public domain.
Now also, you might bear in mind, that notwithstanding the attempt, alleged attempt to recruit him to commit, not one but two murders, Mr Triffett made no attempt to contact the police, notwithstanding he acknowledge in cross-examination that what he was being asked to do was wrong and constituted a crime.
Now as I said, you might think in these circumstances, if that had really happened, the last thing you would do is commit a crime that mirrored that which you’d previously try to get somebody else involved in – it’s just not sensible, nor is it something you think would be done. That the Triffetts, the Hansens, Mr Chappell and the accused parted on bad terms is obvious. But what do you make of Triffett’s claim that he told Bob Chappell or he told the accused, wherever it might have been, about these threats some years later, what better way would be there to destroy a relationship by such claims – and there’s no suggestion that when Mr Chappell and Ms Neill-Fraser and Triffett and Hansen parted company that the relationship between Mr Chappell and Neill-Fraser – Ms Neill-Fraser broke down. Do you think anybody’s going to seriously live with another person, having been told that somebody had been recruited, or attempted to be recruited to kill that person.
Now we say that you should totally reject Triffett’s evidence, it simply is not something that happened, we say, on the evidence, and even so, even if you make a finding it did happen, it doesn’t necessarily make the accused a murderer.
Now, of course the problem with his evidence, you’ve got word on word, it’s a ‘he said’ ‘she said’ – I could say to him until he was – I was blue in the face, “I suggest it didn’t happen, Mr Triffett?” – “Oh yes, it happened” – “I suggest it didn’t happen, Mr Triffett?” – “Oh yes, it happened” – it doesn’t achieve very much unless you’ve got some corroborative evidence to suggest that he wasn’t in the place at the time or something you can put to him to demonstrate that he’s telling a lie. No doubt the DPP would make the same observation. You could cross-examine Ms Neill-Fraser about it and she denies it, but you know, curiously, I don’t know why, I’ve no idea, curiously Mr Ellis never put it to Ms Neill-Fraser in cross-examination that she’d had this conversation with Mr Triffett, never put it to him – to her. He never tested her about it, not one single question along the lines, “I suggest to you, Ms Neill-Fraser, you had this conversation with Mr Triffett about Patrick”, never saw her tested about that, or “I suggest to you, Ms Neill-Fraser, that you tried to recruit Mr Triffett to kill your husband back in – sorry, your partner back in 1996”, never even put it to her. So you’re denied the opportunity of seeing her reaction under cross-examination on this issue, but nonetheless Mr Ellis says well you can still accept Mr Triffett. Never even tested her, why? I’m sure it wasn’t something he forgot, he wouldn’t forget something like that. Maybe it’s an acceptance by him that you can’t put any reliance on Triffett. He certainly didn’t seem to press too hard at the end, I thought, matter for you, that you should accept Triffett. Didn’t even put it. You might think that’s a remarkable thing to happen, a remarkable omission and I’m sure it wasn’t deliberate. But there you are, you have it, we can’t speculate, we don’t know.
Well let’s look at Mr Triffett to the extent that you think it might be useful to think about him. We say he’s got no credibility, he’s a man with convictions for an offence that was described in evidence to you. The Crown led no evidence initially about Mr Triffett having put a proposition, and I won’t raise it beyond that, to the police about his giving evidence and what might happen to the police charges and so forth, but somehow this bubbled to the surface and the prosecution were required to recall Mr Triffett, and quite properly, because they had a duty of disclosure once they learnt about it, and we had him back here and we learnt that he had committed these offences – well, his property had been searched on the 7th of January and a large amount of property removed and he was bailed on the 7th of January on charges of possession; and when you look at that document, and of course it’s in evidence, you’ll see it doesn’t disclose the amount of property or the amount of charges. It simply said he’s charged with possession of certain items and some firearms offences. The formal charge wasn’t laid until the 27th of January, and if you look at the document it’s there, and the court stamp on it, it wasn’t filed until the 29th of January. So on the 28th of January you’ve got Triffett coming to the police and giving what we say is a completely fraudulent and dishonest account, and at the same time he says, ‘Oh did anybody’ – these are my words just my words – ‘can anybody do anything about these charges that sort of happened three weeks ago, four weeks ago?’ Now it would seem that nothing did happen about them, but the plain fact is, it was on the table, at least from his point of view.
Let’s now have a bit of think about Meaghan Vass and her involvement? Well, what do we know about her DNA and where it was on Four Winds? Ms McHoul, the forensic scientist, said it was found in area, I think, 11, which was nine and a half metres approximately from the bow of Four Winds, which puts it on the starboard side of the boat right near the entry point – on that side, and that was confirmed by Constable Sinnitt in cross-examination. It is obvious from the scientific evidence that there was a significant amount of DNA. It was enough to show up in the luminol test, and to be extracted from the deck for the purpose of DNA testing. What it was, the experts could not say, they couldn’t say to you, what part of the body it came from, whether it was from her skin, whether it was sweat, whether it was expectorant, you know for instance, she’d spat on the deck, or what it was – or whether in fact it was a bodily fluid that contained a very minute portion of blood – we don’t know. But Meaghan Vass left DNA on that deck. We say to you that the efforts by the DPP to try and suggest that her DNA got there by transference is not credible That was a desperation ploy, absolute desperation, and you might remember when the Forensic Scientist was giving evidence, he was very uncomfortable, in my submission, about what he was being asked to do, trying to explore the – that was Mr Grosser – he talked about, ‘you know, well I would only exclude it, for instance, by some other means if she was in Canada and I knew that, or something like that.’ So we get the, ‘oh well, it could have got on her because she was maybe at Constitution Dock’. Well, it wasn’t bad. Remember the boat was under video surveillance all night. So if you go on board the boat on the 27th when it was at Constitution Dock, she said she was nowhere near there. She said she’d been nowhere near the Clean-Lift Marina at Negara Crescent, and whilst Mr Ellis this morning tried to suggest that maybe, notwithstanding her denials that she got on the boat there, he seemed to fade away and say, ‘well, it probably didn’t really matter’.
Now where was the boat before it was at Constitution Dock and before it was at Negara Crescent Woodwork Clean-Lift? It was on its mooring at Marieville Esplanade. It follows logically if her DNA was on board that boat, if and – it was, there’s no doubt about that. If it was there right near the entry, it follows logically that she was on board and you cannot exclude that as a rational hypothesis.
Now after considerable prevarication, I suggest, Mr Grosser who was the DNA expert eventually can see that the likelihood that she was in Hobart as opposed to be skiing in Canada and transference thereby was not really a plausible explanation, now we know it’s her DNA, there’s no argument about that, no-one suggested it wasn’t. I guess in some ways the accused is fortunate because when that first report came through from Forensic Services, it’s Item 20, you’ll see it there, it’s marked as – identified as a person or a woman E, and I suppose it’s fortunate that Meaghan Vass committed some sort of offence and had her DNA taken for analysis and if that hadn’t occurred we wouldn’t know who Female Person E was, but we do know that. So Question: we know – first of all we know Meaghan Vass’s DNA is there. How did it get there? Reasonable assumption, only open assumption was she was on the Four Winds. Bear in mind this, she refused to be interviewed by the police about the matter at all. Detective Sinnitt said he tried to interview her, she failed to keep appointments with him. Now she said, in the witness box, “I wasn’t on the boat”, well what else are you going to say, of course you’d expect that. The scientific evidence plainly points to the contrary.
Why was she on the boat? A reasonable conclusion is she was there for no good and more likely was there with some other person or persons. A boat like Four Winds sitting alone out there without a tender would be a prime target for thieves operating amongst yachts. It doesn’t matter that no other yachts were reported having been broken into on previous occasions around that area for sometime.
You do have the accused’s evidence that somebody in her belief had been on board that yacht and she explained the methodology by which they could get inside. Nothing was taken, she said. If she was gilding the lily about that how easy might it have been to say, ‘Yes, this that and the other was taken from the yacht’. How could the police prove otherwise unless there was an inventory of everything on board that Mr Chappell and Ms Neill-Fraser had put on the yacht, how else. So if she was going to gild the lily that’s how you would do it. But she said clearly nothing was taken, things were disorganised and so forth.
The likely scenario I suggest on the basis of this evidence that she probably, with others, almost certainly got on board the boat, you can rationalise, I suggest, probably some sort of confrontation with Mr Chappell that, for whatever reason, resulted in his death and we submit that’s the only logical conclusion. And that’s also when you go through the Forensic Services report you’ll find DNA findings with respect to other males who couldn’t be identified. True is it that lots of people had been on that boat but nonetheless there are males unidentified.
Now it’s hardly likely, as I said, that Ms Vass being brought to this Court would come here and say, ‘Look, yes, it’s a fair cop, I did it, it’s a trial about murder I’m prepared to put my hand up to it’, it’s just not going to happen. Well (indistinct words) you consider the evidence about the grey rubber boat alongside Four Winds, you’ll consider that in conjunction with Meaghan Vass’ DNA. We also know that on the 26th January she had said in this court she was living initially at the Annie Kennerly Women’s Shelter. She then said she was living at Stainforth Court on that day, a direct contradiction within a few moments, and I said to her in cross- examination when she said she’d been living at Stainforth Court, I said to her words to this effect, “Hadn’t you earlier in this court room”, when you weren’t present, members of the jury, “said you’d lived at Annie Kennerly Women’s Shelter? She said, “Yes”, so she was conflicted about that. We find out from Detective Sinnitt that all of that was wrong, she was really living at Mara House. We know that he was unable to find out where she spent the night of the 26th January. We know he went to a false address at Mt Nelson which didn’t exist, we know that she was nowhere near Constitution Dock or at Goodwood and it stands to reason that in those circumstances you can comfortably make the finding that I have said.
Now we also I suppose to some extent were hampered in being able to cross-examine Ms Vass because some aspects of her evidence only emerged much later and that was when Detective Sinnitt gave evidence about his difficulties in trying to find her residence of the night of the 26th January. Now I suggest to you that you have evidence from the accused of the unlawful entry on the 10th January, it’s documented, you can bet your bottom dollar that if Mr Ellis thought that was a late entry or in some way was corrupted we would have had some scientific evidence about that. Remember the diary went into evidence through the prosecution.
Now, as I’ve said, there are some real issues about problems with the accused committing the crime of murder at least as it was first advanced by the prosecution, that is going out at midnight and doing this terrible crime. Well let me be blunt about this, what a terrible risk to be taking trying to kill somebody off Marieville Esplanade in Sandy Bay either in broad daylight or at night on a yacht reasonably close to shore, it’s only about five hundred metres out, amongst other yachts. You’ve got yachts and motorboats moored there, you’ve got the yachts at the marina, you’ve got houses, as I said, at Napoleon Street, houses in Marieville Esplanade, close by where people can see people’s comings and goings. We know that the police doorknocked Marieville Esplanade, because we had evidence about it. We know they doorknocked Napoleon Street, we had evidence about it.
Marieville Esplanade, we know, is a place where people frequent at night, you’ve got all of the activities going on down there, you’ve got two yacht clubs there, you’ve got the rowing sheds and so forth. But more importantly, you have the accused’s knowledge of what she called ‘homeless people’ who spent time in the area of the rowing club in their cars. She gave evidence she knew one of them by name; she said he helped them move the dinghy sometimes, she said, “He was called Steve. He was ex-navy and had a yellow car.” So he would know the accused. He would know the dinghy. He would know Four Winds and he’d know Mr Chappell. Is it logical that with that knowledge, that background, you would go down to Marieville Esplanade late at night, go around to the Royal Yacht Club, untie the dinghy, hop in it, start the engine and putter out, with all these people around who could possibly identify you? The classic is these people, who apparently lived down there in their cars. What would be more obvious than a tender going out to a yacht, some five hundred or so metres offshore, and then coming back and then the next day the yacht being found sunk and Mr Chappell not there? Outboards make noise, they’re loud, night makes sound travel easier across the water than it does during the day.
But let’s look at another issue; Mr Ellis has raised part of this issue, when he said, “Well obviously, she” – that’s his words – “must have winched the body out of the yacht.” Right. That’s a scenario that’s I suppose is reasonably open, given the marks, which the accused, of course, had pointed out. But what are you going to do though once you get your body out of the yacht? Out of the saloon, it comes up into the cockpit, you’ve got to move it from the cockpit onto the deck, you’ve then got to get it from the deck into a dinghy, you’ve got to then take it away somewhere, you’ve got to get it out of the dingy – how are you going to do that without rolling the dinghy over – one person, all that weight on one side – what’s going to happen to the dinghy, it would probably flip.
Now if a person was bleeding from wounds, even a person wrapped up in something, I think Mr Ellis said a sheet or a sail or something like that – might you not expect to find some bloodstains in the cockpit on the floor, some bloodstains on the floor of the wheelhouse, some bloodstains on the deck of the yacht, some drag marks, all of those are possibilities. It would be very difficult, I suggest, to do what is being suggested. Mr Ellis only approached the first step, which is to get the body from the cock – from the saloon up into the cockpit. Well one person would have great difficulty all of that, they become – no pun intended – a dead weight once they’re on the deck, you can’t use the winches then. Now two people would achieve it, not one, and as I said, you’d expect to find some marks consistent with that sort of activity and of course there was none.
Now then there was the evidence of the naval architect, Mr Barrett, about the time that it would take to sink the Four Winds by the influx of water. Bear in mind the police found the boat at about 7:00 a.m. partially submerged. In his evidence in chief Mr Barrett said he thought the timeframe by calculating the amount of water in the boat, by calculating the flow from the two pipes would be nine to twelve hours. Agreed in cross-examination, an approximation it could be between seven and fourteen hours and in the end he said – couldn’t say to the jury on any stretch of the imagination that his figure of nine to twelve hours was accurate, it was an approximation, could be less, could be greater, he just didn’t know. That’s 625, your Honour. Now if you think about it, P36 said they saw – or who said her companion saw the yacht was sitting low in the water at five o’clock. If you go back fourteen hours you’re starting to get water in the yacht. This is just speculation, but matters that you will take into account. Mr Ellis says, “Well look, the cut in the pipe in the toilet yacht was obviously made to attempt to sink it, the opening of the seacock was made to sink it, only the accused would know about the seacock, it was a secret seacock or something like that”, but Constable Lawler said words to this effect, “Anything – anybody knowing anything about yachts would know that seacocks would be where they were, under the floorboards. Seacocks are generally hidden away under easily accessible panels so they can be got at when there’s a need to get to them”, I would suggest that anybody with a minimal amount of knowledge of yachts would have known there’d be sea cocks under the floor and would be accessible and, of course, the pipe of the toilet was obviously visible and accessible. And whoever went out in the grey dinghy knew how to operate a grey dinghy so you knew something about the sea, but there’s another aspect about the sea cock that’s worthy of thinking about. You might remember that there was evidence, I think, from Constable Lawler that he said that he had to use a multi-grip tool because it was such a tight, difficult sea cock to close, and one would assume that if it was difficult to close it would be equally difficult to open unless you used such an instrument.
Now I want to talk about Detective Sinnitt. We say to you that you will and should be prepared to completely disbelieve his evidence about claims that he did not suggest a time line to Ms Neill-Fraser. His evidence is in complete conflict with that of Constable Milazzo on the subject. Now Constable Sinnitt went about the task of trying to get the time for the time line in this ingenuous and quite dishonest way. I mentioned this earlier, he knew of Conde’s evidence, he was quite prepared to make a statement to the Accused that a dinghy had been seen tied up at Four Winds at 3:55 and he set out to and did deceive the Accused by not telling her that it wasn’t her dinghy. He misled her and it’s little wonder at that point she said words to the effect, ‘Oh it must have been later than I thought.’ Naturally, because she’d earlier said she’d believed she’d left at 3. Now that was the methodology that he approached. What might the Accused’s response have been if Sinnitt had said,’ Ms Neill-Fraser, at 3:55 there was a large grey dinghy tied to the Four Winds. What do you know about that if anything?’. And her answer would have been, ‘Well, I don’t know anything about it. What’s its relevance?’ or words to that effect.
Now Mr Ellis at some stage, I think it was in his Opening, said to you that there was Mr Chappell’s blood found in the dinghy. Now I suggest to you that the evidence did not come to that level at all. Ms McHoul from Forensic Services Tasmania said that whilst there were a couple of Luminol-positive tests, she could not exclude the possibility of them being a false-positive and more importantly you’ll remember that Ms McHoul said that she conducted a microscopic examination of the dinghy and could not detect any blood. Yes, surprisingly Mr Chappell’s DNA was found on the dinghy and she – that was found on some rope around the side of it and she agreed that where you expect to find the DNA because that rope’s there to pull on it and drag it and things like that so of course you’d expect the DNA to be there. There’s also the possibility that can’t be excluded from the evidence of the accused that maybe a tiny bit of Mr Chappell’s blood from his nose could have, if you find it was blood on the dinghy, have got there when it was in Southport when he was fixing the stern light in the manner that’s been described.
Now what do you make of the dinghy being found in Marieville Esplanade. Well Mr Ellis in, I suggest, his flamboyant way this morning held up the plan and said, well it must have got itself free and it floated from here and it floated from there and it did this and it did that, well that means nothing. You have no idea of what the tide or wind conditions were at night. You’ve got no idea who took it out, it’s just simply we know nothing about it and he invites you to speculate about that.
Now I want to raise with you this issue about Ms Neill-Fraser’s assistance on site with the police. On any view it is clear that she provided significant assistance to the police in pointing out to them irregularities on board the yacht with the ropes, irregularities with the winch handles and other matters of significance including the burn marks. The police hadn’t picked up the burn marks, and this is at about 4 o’clock on the afternoon of the 27th, nobody apparently ever seen them, but she comes along and says, ‘Look at this, my yacht, I know these things, they weren’t there’. Now if she had committed the crime of murder and if she had done what has been suggested, hauled the body out, you might think the last thing you’d be pointing out to the police who are investigating the murder, or the disappearance of Mr Chappell, is these marks, they may have seen them. They may have but they certainly hadn’t seen them by that. And you’ve got Ms Neill-Fraser saying, ‘look at those’. She pointed out problems with the yacht, things the police wouldn’t have picked up. You’d think that if she was going to contend, for instance, that the blood found on the steps of the yacht by the police came from a nosebleed in Southport, that she could have been very ease – it would have been very easy for her to say ‘Oh yeah that blood got there when we were in Southport’.
Now at this stage, Mr Stevenson and Mr Casson hadn’t been interviewed. However, the first time the blood was mentioned to her about coming from Mr – being on the steps, she said, “Look it couldn’t have been from the nosebleed because those steps were repeatedly covered by water on the trip down and any blood would have washed away, so it didn’t come from the nose.” So she’s pointing out factors, which, if you think about it, if you’ve committed the crime, don’t assist her one iota.
The EPIRB, not a matter of great significance but worthy of a mention; why would it be thrown over the side of a yacht? Not a lot turns on it but let me raise some issues with you? Sergeant Conroy said in his opinion the EPIRB had been incorrectly pulled out of the bracket causing the bracket to be snapped. He agreed under cross- examination it would be a reasonable inference to draw that the person had broken the bracket getting the EPIRB out when it was lacking in knowledge as to get an EPIRB from its bracket properly. And that issue is confirmed by Detect – by Constable Crawford, one of the marine police on the subject.
Now one scenario you might like to think about is this; a person not having any knowledge of EPIRBs might think that an EPIRB would be activated by water entering into a boat – so if you’re going to sink the boat you seize the EPIRB and says ‘I’d better get rid of that because as soon as it touches the water it will go off’. We know that’s not right because we know, from what we’ve been told, you have to activate it by lifting up that little tab and sliding something across. But that doesn’t necessarily mean that the person who is responsible for Mr Chappell’s disappearance had the same knowledge we now have, it may well be that it was taken by that person and tossed somewhere into the river, we don’t know where, as a distraction on the basis that once it got into the water it would send off a signal and that would distract people – we don’t know, it’s all speculation. We don’t know where it went to, how long it floated up and down. Well we know it was found on the shore on a certain date, but that doesn’t mean that’s where it was thrown into the water, it could be carried on the current for some considerable time.
Now let’s have a look – a look please at the evidence of Mr Hughes, because this is very important. Mr Hughes was the gentleman who was sitting down at Marieville Esplanade drinking his Farmers Union coffee in the evening between eleven thirty and twelve. Now it’s very important to bear in mind what he said. He saw a dinghy about fifty metres offshore: So that’s towards the eastern shore.
The person had the outline of a female but I can’t be definite.
He couldn’t identify the colour of the dinghy and he said:
It hadn’t passed the end of the reclaimed land where the rowing sheds are built –
When he first saw it. He thought it was about fifty metres out and the dinghy – just bear with me, please – he marked it on the plan and importantly he said this:
It was going northeast towards the eastern shore.
And did you notice –
He was asked this question:
Did you notice where the person you saw in the dinghy was seated?……They were seated.
Whereabouts?……Towards the back.
Yes. On the side of the dinghy or seated in the dinghy?……In the dinghy.
So they weren’t on the left hand side or the right hand side but rather sitting down on what you presume was either a seat or the floor?……Yes.
And you formed the impression it was a woman?……It had the outline of a female.
But you can’t be sure about that one hundred percent?……I can’t be definite.
So at the end of the day what it comes down to is:
You thought it was a woman but you can’t be sure and you can’t tell us what the person was wearing, you don’t know the colour of the dinghy?……That’s correct.
Now the importance of the person sitting on the floor or sitting on the seat is this, when you look at that dinghy you’ll see that there are no seats in it and when you look at the exhibit, P15, photographs 16 and 17, you’ll see how the dinghy is operated, it’s operated by a person sitting on the right hand side and operating the handle on the engine with his left in that case, so what Mr Hughes saw was not a dinghy being operated in that sort of manner.
Now the accused told you that her dinghy was tied up at the Royal Yacht Club directly underneath the crane which is situated on the plinth next to a steel ladder. She said she did this because she thought it was safe there overnight, she said there were other yachtsmen in the area. Believed that there was video surveillance and didn’t find out until later that there wasn’t and she further believed that there were security people, a watchman or something, and she didn’t find out that until later. Now if you think about it logically would it be likely for a person in the accused’s position to go back to the Royal Yacht Club at night where there’s a marina, where her activities could be seen by any yachtsmen, where she could have been observed by the video surveillance she believed existed, where she could have been observed by the night watchmen she believed, or activities could have been observed by persons coming and going from the yacht club, just ridiculous to suggest that would be the case.
As I’ve said the accused cooperated with the police, she gave them a compendious list and things on board she observed, about the ropes being in the wrong place, ropes being on the deck, winches and everything else that she mentioned. She gave the police all her diaries for many years and no doubt which Constable Sinnitt assiduously read. He agreed under cross-examination there wasn’t a single entry in any of those diaries which indicated any disharmony with Mr Chappell or any dislike of him or giving any indication that the relationship was anything other than a good relationship.
Now Mr Ellis hasn’t mentioned this wretched red jacket that sits over here but let me mention it. It’s got her DNA on it, there’s no argument about it, it’s hers. Were it not for the evidence of Mr Hong, the Chinese gentleman who gave evidence, you’d be misled into thinking the jacket was found draped over the fence. Mr Hong said he saw it before anybody else. He said when he saw it on his fence it was rolled up, somebody obviously unrolled it before the police took possession of it and we don’t know who that is. What’s its relevance, how did it get there, who left it there, no one has come forward and said they put it there. You might think about all the publicity about it, that somebody might have found it in Marieville Esplanade, might have come forward and said, ‘look I found it, I put it on the fence because whoever lost it might come looking for it and it will be sticking up there like a red jacket on a brick fence’, but we don’t know how it got there, we don’t know who put it there. I suggest one scenario, a possible one you might like to think about, and that was it was taken off Four Winds by the persons responsible for the death of Mr Chappell and for whatever reason was abandoned. They didn’t like it, didn’t want it or just got rid of it and left it there. That’s speculation, it’s my speculation about it, there being no other evidence whatsoever.
Whilst Mr Ellis didn’t dwell on this subject in his submissions to you, nonetheless, the Galapagos Islands, the Marquis, the US websites for yacht sales, and as I understood the Crown case, at least at one stage, it seemed to be that because she’d had the unmitigated gall to access these sites on Google, that in someway it pointed to her guilt and that this meant she was about to leave Mr Chappell. But she’s given you a cogent explanation about this. I do hope none of you members of the jury ever face the proposition that you look at exotic places on your home computers and then find your partner disappears a few days later because you’ll be in a dock somewhere. Look, it’s ridiculous to think that because you look at a website that has exotic places there, yachties want to go, the Galapagos, owned by Ecuador – had a sister-in-law in Ecuador, that in some way it implies guilt. That’s just not appropriate.
Now you have heard much criticism by Mr Ellis about the accounts given by the accused about going to Bunnings; her failure to disclose her visit to Marieville Esplanade on the night of the 26th of January. She’s given you explanations about these matters – yes, they were lies, she acknowledges that. But they weren’t lies from a consciousness of guilt, she gave you the explanation; 27th of January she’s faced with her yacht sinking, her partner disappeared and she’d expected to be able to give a blow by blow description of the precise events of the previous day. She said she was in a state of shock, as you’d expect, but she eventually told the police that she had got it wrong and gave an account as to why she got it wrong. It’s detailed fully in the records of interviews. She’s detailed in this account. She’s told you about why she went there on the night of the 26th and why she held back the information. I mean you might think about it, it really was an extraordinary night, unbeknownst to her there were the problems on the yacht, but the same night she gets the call from the gentleman who was looking after – or the companion of Claire, and who engaged her in this conversation for thirty five minutes or so, and as she said, it unnerved her, she described what she did and she eventually went down to Marieville Esplanade, she said she was there for a short period, drove home – not inconsistent with a Ford Falcon on evidence being seen on Sandy Bay Road at 12:25 a.m. Now we would say that you don’t draw the conclusions that Mr Ellis wants you to draw from those.
Now there’s not an iota of evidence in this Court about the accused’s car being parked at home that night or parked anywhere else that night, but you can guarantee from what we know because the police door-knocked the area, they’ve told us that, that – they certainly would have door-knocked her area to find out what time she got home and we’ve heard nothing. So we have her evidence about what time she got there.
Now bear in mind during the course of these deliberations that there were many, many questions put to the Accused by Mr Ellis for which he obtained an answer, an answer that perhaps he didn’t like, and one of the things his Honour will tell you is this, that questions are not evidence. Questions are not evidence. The answer is the evidence. A good example was the IPERB. Remember when Mr Ellis was addressing Ms Neill-Fraser saying:
Well look, you’d only gone part of the way in getting the IPERB activated. You had to do this and that with Austar.
She just looked at him blankly and said basically I don’t know what you’re talking about.
He pressed a theory of how it operates to her but, of course, you’ve got no evidence as to how you go about registering the equipment apart from what the accused has told you and what you’ll find written on the back of that particular piece of equipment.
The same 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.
Mr Ellis’s question: I suggest you did it this way. is not evidence.
Now as I said in opening these submissions, the onus of proof in this Case rests entirely on the Crown and throughout the Case. Ms Neill- Fraser’s not required to prove anything in her defence, and I’ve told you about the strong test that must be applied in finding a person guilty on circumstantial evidence. We say that the hypotheses that we have advanced are not fanciful, they’re not impossible, they are not incredible, nor are they untenable or too remote or tenuous. They are real possible hypotheses. The Crown of course, as is clear from Mr Ellis’ submissions this morning, relies heavily on what he says are lies and his Honour will tell you in due course that you can only use lies as a basis for finding guilt on the part of an accused if you are satisfied that those lies have been told out of a consciousness of guilt. Many people tell lies, many people tell lies about events they’re involved in, it doesn’t follow that every time a person tells a lie it’s out of a consciousness of guilt. Somebody might commit a crime, for instance, and deny ever having been in a particular area at the time or be charged, more correctly, with a crime but deny ever having been in a particular area at a time. They may have any number of reasons why they don’t want somebody to know they were there.
So at the end of the day what are you left with? You’re left with suspicion, you’re left with a circumstantial case, you’re left with a Crown case that has lots of holes in it, you have a total lack of evidence about the ownership, use, etcetera of the dinghy. You’ve got Meaghan Vass’ DNA, you’ve got the total denials by the accused repeatedly to the police and here in this court room on her oath that she is in no way responsible, you have a complete and total absence of motive. Now I remind you of what the – I said about motives earlier. You have no identification by anybody of the accused being anywhere near the yacht from three o’clock onwards and her comment to Sinnitt, “Well I must have been there later”, is based on false information provided by Sinnitt. You have a number of hypotheses that are completely consistent with innocence and on any view show the involvement, not merely the suggestion of involvement but show the involvement of other unnamed persons, you have the total and untested denials relative to Triffett’s evidence. As I said, Mr Ellis didn’t even put it to her, and to top this off in our submission you have an investigation by Detective Sergeant Conroy and Detective Constable Sinnitt that was less than proper, less than perfect, where they failed to recognise and to follow up glaringly obvious information, particularly the existence of the grey dinghy. And why did they do this – because they were totally fixated upon the accused and failed to even consider the possibility of any other person’s possible involvement in the matter, that other persons were on that yacht, in our submission, is patently clear from the evidence before you. As I said, yes, lies were told, she admits that, but they were not told through a consciousness of guilt. They were silly. They were silly lies. They were naïve, or she was naïve, it doesn’t mean she committed the crime of murder.
In our submission, ladies and gentlemen, there’s only one possible verdict that you can return in this case and that is one of not guilty.
If it please, your Honour.
Sue Neill-Fraser’s stat dec of January 28, 2009
When justice loses appeal
When justice loses appeal (with link to 2min video of lawyers’ comments)