Andrew L. Urban.
The police investigation that led to Neill-Fraser’s arrest was irredeemably flawed, as we reported in Part 1 and it led to a train wreck of a trial that mocks the integrity of the criminal justice system. There is a remedy even now, says a legal academic: “the prosecution should concede that appealable error has occurred and make a joint request with defence counsel that the conviction be set aside … as has been done (before and) in many cases in the UK”.
That wrongful arrest led to then DPP Tim Ellis SC accepting the police ‘brief of evidence’ and proceeding to trial. The original sin of the arrest without probable cause turned rancid in a trial that broke almost every relevant rule of criminal justice in court. (See ‘inadmissible evidence’ below) We have reported extensively on many of them, not least the prosecution’s speculation about Neill-Fraser’s imagined method of murdering and disposing of Chappell without any evidence to support that scenario – unchallenged by trial judge, now Chief Justice Blow.
Extract from the Closing address by Ellis SC:
CT 1348 S.B. NEILL-FRASER / HOBART 12.10.10 XXD MR ELLIS SC
You lowered his body into the dinghy and you took it somewhere into the deeper channels of the Derwent ….
CT 1351 S.B. NEILL-FRASER / HOBART 12.10.10 XXD MR ELLIS SC
… you completed the work and disposed of Mr Chappell’s body by using winches to haul him out and the fire extinguisher and other things. You wrapped him up in some form of doona or cloth or a sail cloth or something with the carpet pieces which were bloody and which you’d removed …..
In his own closing address, defending barrister Gunson SC said to the jury: “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.”
A little later came this exchange, jury absent:
CT 1486 HIS HONOUR, COUNSEL, JURY ABSENT– SUBMISSIONS, PRIOR TO SUMMING UP, 13.10.10
MR ELLIS SC: The next point is, it was attributed to me that I said it was Mr Chappell’s blood in the dinghy. Now I don’t believe I did.
MR GUNSON SC: Yes, you did.
MR ELLIS SC: Okay – I don’t know why I’d say it
HIS HONOUR: – Well – -
MR ELLIS SC: – because I’ve never believed it.
HIS HONOUR: In opening.
MR GUNSON SC: Yeah.
MR ELLIS SC: Oh in opening –
MR GUNSON SC: Yes, in opening.
MR ELLIS SC: Oh okay, I abandon that, if I said it in opening.
HIS HONOUR: All right. Well I’ll do nothing about that point. What’s the next point?
Had Blow J erred? Should he not have recognised that the prosecutor had misled the jury – as well as His Honour. And should he not have done something about ‘that point’?
But that wasn’t all, as legal academic Dr Bob Moles of Flinders University has explained: After Sue Neill-Fraser was convicted and had been unsuccessful in her appeal I was asked to have a look at her case.
Upon reviewing the transcript of her trial it was manifestly obvious that there had been a number of very significant errors in the conduct of her trial.
For example, a forensic scientist gave evidence to the effect that she had found traces of blood in and about the boat. The test she had used to determine the presence of blood was a “Luminol” test.
The scientist acknowledged that this was only a preliminary screening test, and she should also have known that it could not have been probative of the existence of blood without a follow-up confirmatory test. She said that confirmatory tests were not done. This means that her assertions about the presence of blood should not have been admitted into evidence. The fact that they were admitted constituted an appealable error, and would, in and of itself provide sufficient grounds upon which the appeal should be allowed.
In addition, the prosecutor stated that the jury could infer from the injuries that Mr Chappell would have had that he must have been attacked by someone known to him and not by a stranger. Apart from being entirely irrational, there was no evidential basis to establish that Mr Chappell had any injuries and if so what their nature was. A prosecutor is not allowed to put submissions to the jury unless the facts upon which they are based has been established by properly admitted evidence.
The prosecutor also stated that the jury could infer that Mr Chappell had been attacked by someone known to him and not by a stranger because a stranger would not have bothered disposing of his body – he said that would make no sense at all. The only thing here which did not make sense was that submission by the prosecutor. There is no rational basis upon which it could be said that strangers do not bother to dispose of bodies in murder cases. Of course there was at the time the submission was made no evidential basis to establish that there was in fact a body which had been disposed of.
It is clear to me that such submissions by the prosecutor were in error and would of themselves have provided a sufficient basis upon which an appeal would and should have been allowed.
The wrongly admitted evidence by the forensic scientist, along with the erroneous submissions by the prosecutor provide a compelling case for the overturning of this conviction.
The above opinions have been set out in further detail in our research report which is available at http://netk.net.au/Tasmania/Neill-Fraser95.pdf
It is my view that the prosecution should concede that appealable error has occurred and make a joint request with defence counsel that the conviction be set aside. If that were to be done, as has been done in many cases in the UK, the conviction could be overturned within a week or two.
As attractive as this remedy is, it is unlikely that the DPP would countenance that course of action, given the history of official resistance to any review.
So the appeal court may not hear (or want to hear) the above failures at trial that cast doubt not only on the conviction but on the court itself – their fellows in the legal fraternity. But they should not be allowed to forget what prominent Melbourne barrister Robert Richter QC says about Meaghan Vass’ DNA: it “anchors her to the crime scene”.
There are a number of other active lawyers, barristers, judges past and present who join her family and friends in expressing their deep concerns over Sue Neill-Fraser’s conviction. By contrast, we have not heard from any member of the legal establishment (other than the Tasmanian DPP’s office) speaking out in support of the guilty verdict.
First it was March 24, then it might have been August 17, then November 2, but Sue Neill-Fraser’s last chance to appeal her controversial murder conviction has once again been deferred to a date beyond December 1, after Tasmania last week extended its border closure, due to Victoria’s latest outbreak. Her pro bono legal team reside interstate: instructing lawyer Paul Galbally in Melbourne, barrister Tom Percy QC in Perth. At a directions hearing in July both her team and the DPP agreed that the appeal hearing needs to be held in person, not on video links.
This is an especially disturbing example of the destructive ripple effect of state border closures spreading through every aspect of the community.
The new date for Neill-Fraser’s appeal may be set at the next directions hearing, scheduled for September 28, 2020.