Andrew L. Urban.
Garbled English aside, Tasmania’s DPP misled the appeal court – perhaps unwittingly, but significantly – as the latest Etter/Selby submission to the Attorney-General reveals, with an extract from the transcript of Sue Neill-Fraser’s appeal before Tasmania’s Court of Criminal Appeal in March 2021.
Let’s put it in plain English: the police and the prosecution in the controversial Sue Neill-Fraser case wanted desperately the evidence to show that the dinghy seen beside the Four Winds – the crime scene – on the afternoon of Australia Day, 2009, was NOT some strange dark grey, well worn working dinghy but the smaller, white/blue trim leisure class dinghy of the Four Winds herself. That’s because a different dinghy would sink the prosecution’s narrative. It would mean that it wasn’t Sue Neill-Fraser at the crime scene that afternoon. Someone else was. Case closed.
The significance of the grey dinghy cannot be overstated: it was seen by at least four witnesses between 3.55 pm and 5.30 pm on Australia Day. From an earlier Etter/Selby submission, we know that Bob Chappell was not seen alive at 5 pm. If relevant material had been disclosed to the defence before (or even during the trial, given the 5 October 2010 email), the defence could have presented a much stronger alternative hypothesis to the jury.
The Crown doesn’t have to prove the method of murder or a motive: but the Crown does have to prove that the accused was at the crime scene at the relevant time. For a start.
The Etter/Selby submission refers the Attorney-General to the appeal transcript:
- On 3 March 2021 the following transpired during the closing comments of the DPP (T 137-138):
ESTCOURT, J: What do you say about Mr Conde’s evidence?
MR COATES SC: Mr Conde’s evidence was that the – the yacht was grey–
MR COATES SC: -the dinghy, sorry was grey. Well, the answer to that your Honour, is that – which was what was put at trial, was that the dinghy was white and from a distance over the – over the water it looks grey. And, that’s the answer to that. But, it would be pretty unlikely that a dinghy similar to the Four Winds was – but, a different dinghy was there at I think this time’s around between around about 4 o’clock, and that’s the timeframe that Ms Sue Neill-Fraser said she was there.
MR COATES SC: She went there at 2 and she would have got there at – got back about 3. And, when the police put to her Mr Conde’s evidence, she said well it must have been – I must have left late. So, it’s true Mr Gun son (sic) was saying that the sightings of the dinghy was a different dinghy but, the jury can readily accepted (sic) that the same description, the only difference is one is saying white and one is grey and it’s on a – on the water. (emphasis added)
But the document proves that “The DPP’s response to His Honour’s question is incorrect,” as the authors point out.
The Etter/Selby submission states:
“The grey dinghy was seen on the afternoon of Australia Day by: Paul Conde, Thomas Clarke, P36 and Jill Ikin. A grey dinghy was also seen on other occasions by Gary Smith, near the rocks where the Four Winds’ Zodiac was found on the morning of 27 January. Only one of those witnesses, Paul Conde, gave evidence at trial. The statutory declarations of both Thomas Clarke and P36 were read to the court (T 2010 p.223 and p.225).
“Mr Conde in his initial statement described himself as ‘an experienced and competent yachtsman’. His initial description was simply that of ‘a grey inflatable dinghy’. At trial, he went further and described it as a large dark grey rubber dinghy (T 2010 p.426). In cross-examination (T 2010 p.428) he said it was ‘battleship grey’.
“In re-examination Mr Conde said that the Four Winds dinghy was smaller than the one he saw (T 2010 p.431). He also said that the dinghy that he saw had a lee cloth across its bow (raised spray guards which stop water coming into the boat in bad weather) and the Four Winds dinghy’s bow was blunter than the pointed bow of the dinghy he saw. He added (T 2010 p.431):
… the dinghy – the Quicksilver dinghy in the photographs is not the dinghy I saw at five to four on Australia Day last year.”
The incorrect statement must be rectified by the DPP pursuant to his professional obligations; and the growing body of evidence means the appeal must be reopened so that Sue Neill-Fraser can, at last, be exonerated.