Andrew L. Urban.
Evidence withheld by police, misleading forensic evidence and serious investigation failures into the death of Bob Chappell (including the unchecked mobile phone records of key witness Meaghan Vass) revealed in a damning submission calling for the Attorney General to ask for the re-opening of the Sue Neill-Fraser appeal.
“… certainly Meaghan Vass had some associations with some young male offenders, underage offenders, that have been in the past guilty from breaking into boat yards and stealing things off boats.” This statement by Detective Inspector Peter Powell (now retired), recorded on camera by filmmaker Eve Ash on 27 June, 2012, appears on the very first page of the submission to the Attorney-General.
It’s revealing, and it’s important because it is an admission that the police knew about break ins, break ins that they avoided making proper inquiries about. Bluntly this line of inquiry is so obvious that its neglect says a great deal about the problems with the police investigation.
It is also important because the police disclosed this to filmmaker Ash some 11 weeks before Neill-Fraser’s unsuccessful application to the High Court on a relevant issue. “This information ought to have been disclosed to both the DPP and the Defence teams.”
Most readers will be aware that Meaghan Vass has twice made sworn statements as to her being on the Four Winds on Australia Day 2009 and that Sue Neill-Fraser was not there. In one 2019 statement she named two males who were with her. However, when twice questioned in court she did not adhere to those statements.
The 55 page report analyses and dissects the police investigation into Meaghan Vass and what police knew or should have known and should have disclosed to the Crown and defence counsel. A vital issue underpinning the police investigation was the strong and large volume DNA sample of MV found on the deck of the yacht (at the crime scene).
The DNA as a supposed “red herring” was strongly advanced by the Crown at trial. But critical information that was included in an investigation folder prepared by then Detective Senior Constable Shane “Sam” Sinnitt was not disclosed to the Office of the Director of Public Prosecution (ODPP) prior to the trial. It includes an 18 March 2010 email from TASPOL Forensics on the nature of the Meaghan Vass DNA sample found at the crime scene on board Four Winds, that described the strong DNA profile as indicative of the presence of a relatively large amount of DNA, which was more likely to have come from body fluids than a simple contact/touching event. Hence she, not someone else, left it on the yacht.
The submission to Tasmania’s Attorney-General Elise Archer states: “From the trial transcript (see T 757 and 768), it is clear that the Crown had not previously seen the Sinnitt investigation folder. This non-disclosure is also evident from the investigator’s affidavit in another case as to the materials he forwarded to the ODPP for disclosure to the Sue Neill-Fraser legal team. This failure (and the lack of any explanatory detail in the relevant Forensic Biology Reports from 2009 and 2010) may explain why there was no mention of Vass or the DNA sample in the Crown’s opening address, no proof of evidence from her, and that she was not even listed as a witness (2010 trial T 689 & 767).
“An examination of the Crown Disclosure Folders (1-6 and Supplementary) (as supplied) indicates that the contents of [Police disclosure] Folder 13 [relating to Meaghan Vass] from Police were not disclosed. It also appears that neither of these Folder 13 documents were included in the Sinnitt investigation folder which was disclosed mid trial in 2010 after cross examination by David Gunson SC [who appeared for the accused] exposed its existence. This disclosure of the folder importantly occurred after the evidence of MV and Mr Grosser from FSST regarding the now critical DNA sample. ”
The submission, prepared by Neill-Fraser’s previous solicitor Barbara Etter APM and Canberra-based barrister Hugh Selby (who are not part of the current legal team but writing as concerned members of the public with an intimate knowledge of the case), “brings to light information that has not been presented to the court at any stage of the initial trial, subsequent appeals nor the latest appeal currently before the Court of Appeal,” the authors claim. This information relates to what is alleged to be a highly inadequate police investigation and non-disclosure by police.
Quite apart from the issue of who left Ms Vass’s DNA on the yacht the submission argues, with specific examples of what should have been done but wasn’t, that “TASPOL investigators in Operation Ransack (the operational name for the Sue Neill- Fraser murder investigation) failed to follow up basic and obvious lines of inquiry about Meaghan Vass [MV] and her known associate Sam Devine both prior to the Sue Neill-Fraser trial in 2010 and thereafter.”
THE IMPACT OF NON-DISCLOSURE
From the submission:
“The results of the non-disclosure of relevant material were that:
- The Crown, the Defence, and the trial judge were misled as to the availability to the SNF defence at trial of a viable (not ephemeral) alternative hypothesis, namely that a person or persons, not being Sue Neill-Fraser, caused Chappell’s disappearance (and presumed death).
- While the issue as to MV being on the yacht (she said she hadn’t been on the yacht) as argued in the Court of Appeal and later in the High Court did not amount, at that time, to a ‘point of substance’ (as found by the High Court in September 2012 on the leave to appeal application), it is clear from what follows that it was and is now a significant ‘point of substance’. The reason it was not a point of substance previously is because police were incompetent.
“The reason that Justice Blow and the subsequent Appeal Courts did not find the MV evidence sufficiently weighty to warrant her recall at the trial or thereafter to order a retrial is wholly and solely because of inexcusable police failure, first as to investigation and secondly by their lack of proper disclosure to the Crown.
“This paper demonstrates a point of substance that, if known at the time, would either have altered the trial outcome or been of great significance in any appeal.
- The police disinterest in Ms Vass may be explained by an early decision by them to discount any allegation that someone other than Sue Neill-Fraser was responsible for Chappell’s disappearance and presumed death. This approach required ignoring any suggestion that some other person or persons had gone aboard the yacht. The obvious reason for such an incursion would be to break in to take food, alcohol or any valuables. This decision should be considered in the context of the following:
10 January 2009 when Sue-Neil Fraser makes a diary entry about a possible break in or illegal access of the Four Winds;
27 January 2009 when Peter Lorraine has a phone chat with TASPOL officer Sinnitt and describes a dinghy that is NOT the Four Winds’ dinghy;
27 January 2009 when Grant Maddock, a local yachtsman living on his yacht in the vicinity of Four Winds, speaks with police at the low loading dock at Constitution Dock. He speaks to Conroy [who was in charge of the investigation] (and even emails him photos of the Four Winds immediately prior to that day – T 199 leave to appeal hearing 1 November 2017) but Conroy never contacts him again (see leave to appeal hearing T 198-199 and 205 1 November 2017);
28 January 2009 when Phillip Triffett contacted police ‘providing information about the yacht and Ms Fraser’ (see Police Investigation Log);
31 January 2009 when Peter Lorraine meets Conroy who has him sign up to a statement that has him seeing the Four Winds’ dinghy. Sinnitt’s contemporaneous notes of Lorraine’s initial evidence that describe a very different sort of dinghy were available to Conroy;
4. Thereafter police have the crime scene/forensic document examiner provide inconsistent statements (see Appendix C to [their] paper) in an effort to substantiate a claim that Sue Neill-Fraser had ‘doctored’ her diary to insert a false ‘break in’ claim.”
The lengthy and detailed submission by Etter & Selby provides a helpful chronology and itemises investigation failures into the disappearance and presumed death of Bob Chappell, whose body has never been found. Some of the failures listed include:
“His life partner was convicted of his murder because the police:
Failed to make any inquiries among the locals and boaties about theft from moored boats. If they did make inquiries then they failed to disclose them. But by June 2012 they admit to knowledge of her associates and their theft from boats (see above);
Allowed the Crown to suggest at trial that the accused had ‘fabricated’ an entry in her diary about unauthorised access to the Four Winds just a couple of weeks before the Australia Day tragedy when they knew that their forensic evidence did not support that suggestion, and when they should have known, and perhaps did know, about the pilfering from boats;
Put it about that the teenage Vass’ DNA was left there by someone else via secondary transfer when they should have known that it was left by her;
Gave incomplete and misleading evidence at trial that Chappell’s blood was in the yacht’s dinghy.
A key concern highlighted is the lack of independence of Forensic Science Service Tasmania (FSST) which is corroborated by the conduct of one of their staff at the trial who failed to mention that all the tests done in that laboratory showed that there was no blood in the yacht’s dinghy. “The Police Investigation Log (PIL) for 16 April 2009 records comments of this scientist that the tests for blood in the dinghy “did not work” [which implies the tests were negative for blood, not positive. There were no positive results]. The improper collaboration between TasPol and FSST is further shown by September 2014 correspondence from Barbara Etter that raised bona fide technical questions addressed to the Director of FSST being dismissively replied to by a senior member of police command.”
The Etter/Selby submission puts forward a number of questions that support the charge of incompetence around the police investigation – here are just some of them:
- Why is there no supervision, management or leadership evident in this matter? (An RTI request by Etter in 2012 revealed that there were no written records of any directions given by senior officers during the investigation and no records of a briefing of the Commander by the lead Detective as noted on the Investigation Log for 2 March 2009 as the briefing was verbal and there were no written records. When notes or records of other key briefings were requested, advice was provided to Etter that no records were kept of such meetings and the decisions had been recorded on a whiteboard i.e. “no permanent record exists”).
- Where are the necessary file notes, diary entries, policy files and critical decision logs (or similar)?
- What further guidance or advice was given to Sinnitt by FSST personnel?
- If secondary transfer (of the Vass DNA) was a possibility why was there no questioning of those documented as coming on board the Four Winds as to how they may have come into contact with a significant biological sample (urine, vomit, blood etc) belonging to MV? (See 2010 trial T 788 for 30 September 2010)
- Why is there no analysis of the outcomes of the investigation by Sinnitt?
- Why is there no investigation report or even a memorandum to more senior officers in Operation Ransack?
- Why is there no memorandum or report for the ODDP on the issue?
- What Quality Assurance (QA) or review of the investigation into MV and the DNA took place? What QA or independent review was undertaken of Operation Ransack?
- Why are the relevant staff and residents of Mara House not spoken to about when MV returned to Mara House on 27 January 2009 (as noted by Sinnitt) and her condition, state of mind, any comments on where she had been etc?
- Why was there not further investigation when the address she had given for the evening at Mt Nelson was found to be a non-existent address?
- Why were mobile phone records of Sam Devine not checked when he and MV were known associates and his mobile number was on record in January 2009?
- Why were mobile phone records of MV for the number clearly listed in the disclosure folder including on a Detention record in February 2010 not checked?
- Why were the identified owners of the three mobiles that texted the Meaghan Vass mobile number on 26 and 27 January (that was checked by police) not spoken to and asked the reason for their contact with MV?
- Why was Sam Devine not investigated when he was a documented criminal associate of MV (in January 2009), particularly when Mara House records indicated that MV was spending the night at Sam’s place?
- Why did police claim that the diary entry of Sue Neill-Fraser for 10 January 2009 in relation to unlawful trespass and interference with the yacht was false?
- Why did they continue with this allegation in light of the statement of forensic document examiner Constable Tony Fox dated 4 March 2009 prior to trial re document examination?
- Why were people living on the Marieville Esplanade foreshore or on their yachts in the vicinity of the Four Winds on the night in question (such as Grant Maddock) not carefully and thoroughly questioned about their observations, movements and any information about theft, trespass and break-ins, as well as the theft of dinghies?”
From the submission:
The High Court’s decision in Penney v R  HCA 51;(1998) 155 ALR 605; (1998) 72 ALJR 1316 is instructive, especially the following, from the leading judgment of Callinan J who discussed the significance of a “defective” police investigation:
…there may be cases in which deficiencies in the investigation might be of such significance to a particular case as a whole that the accused will be entitled to an acquittal or a retrial. But that will all depend on the facts of the particular case.
“Regard should also be had to the High Court decision in AB v CD and others, 2018 HCA 58, This decision is illuminating because, inter alia, the full court said,
Victoria Police were guilty of reprehensible conduct in knowingly encouraging EF to do as she did and were involved in sanctioning atrocious breaches of the sworn duty of every police officer to discharge all duties imposed on them faithfully and according to law without favour or affection, malice or ill-will. As a result, the prosecution of each Convicted Person was corrupted in a manner which debased fundamental premises of the criminal justice system…
“They were considering the case of a defence solicitor in Melbourne turned police informant; however, the remarks have a somewhat wider application. Penney’s time may be nigh.”
TheEtter/Selby submission asserts that the police deficiencies described in their paper combine “to realise the facts to which Justice Callinan was referring as justifying at least a retrial, and possibly an acquittal. His Honour’s dicta have been cited in cases around Australia, including in Tasmania by (the trial judge, now Chief Justice) Blow CJ in Pike v Lusted  TASSC 46 at . ”
- Many of our readers have previously remarked in the context of the Sue Neill-Fraser case, that “the truth will out”; it seems an appropriate note on which to end this report.