Andrew L. Urban.
In an escalation of damning revelations (fifth batch), the spotlight shifts from the police investigation to then prosecutor, DPP Tim Ellis SC, and the ODPP, as lawyers continue to unpack the miscarriage of justice in the Sue Neill-Fraser murder conviction.
At Sue Neill-Fraser’s murder trial in 2010 the prosecutor, then Tasmanian DPP Tim Ellis SC, showed the jury a photo of a luminol-stained dinghy – glowing blue in numerous areas. Ellis had been telling the jury (without a weapon, body or witnesses to the crime) how Neill-Fraser had killed Bob Chappell, probably with a wrench, hauled his body up on deck and then loaded it into the dinghy … all that blue! All that blood! But near the end of the trial, Ellis said he didn’t ever believe there was blood in the dinghy, as he told the judge and defence counsel in the absence of the jury. Inexplicably, the judge, now Chief Justice Alan Blow, didn’t pass that on, leaving the jury to see red in the blue of the luminol.
Ellis later claimed that he hadn’t read the major Forensic Biology Report on the case, leaving the task to his junior, Jack Shapiro, according to a letter to the Legal Profession Board of Tasmania in November 2017. In that letter “he also stated, in effect, that he did not understand the nature of luminol testing and the need for biological confirmatory testing, according to the latest (fifth) batch of documents sent to Attorney-General Elise Archer by Neill-Fraser’s former lawyer Barbara Etter APM and Canberra based barrister Hugh Selby. They urge the A-G to act, to seek to reopen the appeal, even as the last appeal against the conviction is being considered by the three judges of the Criminal Court of Appeal.
Trial transcript T639:
“As we go through it and could you come perhaps to photograph 21, and what does that show?……This is a photograph that was taken to show the areas that glowed with the luminol screening test for blood.” (emphasis added)
Which is it?
* Did Ellis show the prejudicial photo to the 2010 jury in ignorance of luminol’s proper and accepted use as he claimed in 2017? (The DPP didn’t know? He was admitted as a barrister in 1979, appointed DPP in 1999.)
* Ellis was merely speculating how the crime may have been committed, which is why he “never believed” there was blood in the dinghy, as he told the judge … ?
* Ellis didn’t believe there was blood in the dinghy, so why did he show the misleading photo to the jury?
In his covering letter with the latest documents, Hugh Selby reminds the Attorney-General that “These last twelve days I have put before you material that addresses poor police investigation, police failure to disclose, ODPP failure to disclose, and DPP misstatement of evidence at the March 2021 appeal … and that these shortcomings, both factual and procedural, support an acquittal for Sue Neill-Fraser.
“There is no reliable evidence that Sue Neill-Fraser went back to the Four Winds in its dinghy late on Australia Day afternoon. There is both DNA evidence and the multiple sightings of another dinghy that another person or persons did go to the yacht at that time. Ms Meaghan Vass has twice made statements that she was on the yacht. She has said that Sue Neill-Fraser was not there.
“There is no evidence that Sue Neill-Fraser harmed Bob Chappell or that she took away his body.”
* Barbara Etter APM and Canberra-based barrister Hugh Selby are not part of Sue Neill-Fraser’s current legal team.
Great work by everyone contributing. Very inspirational, if we can not attempt to help one another when in need,, what is the point of life.
You all are helping me too, I hope you realise.
Bring on the Federal Royal Commission Tasmania.
Human Rights Abuse abounds in Tasmania by corruption of Public Servants.
Whether or not it’s proper to ask an Attorney-General to intervene in a case ‘before the courts’ is a question which has been troubling me.
We know about the so-called ‘separation of powers’ and we should not want – in my opinion – to ask political leaders to attempt to influence the courts.
And yet, new … ‘fresh evidence’ has again emerged in relation to the disappearance from and presumed murder of Bob Chappell, while on board the Four Winds on the 26-27Jan, 2009.
The Tasmanian Court of Appeal [CCA] is seen to be dragging its feet: it is now five months since Meaghan Vass told the court that she was present on the yacht when Bob Chappell was attacked. She named the killer, but in the face of focused questioning from DPP Daryl Coates (which exposed deficiencies in her account) Vass gave up and agreed to all of Coates’ subsequent questions … ‘yessing’ in agreeance … such that she was never on the boat and so forth and that others got her to say certain things and sign certain documents..
Yet while Daryl Coates achieved some sort of victory on that second and third day of Sue’s 2nd Appeal, I (like a significant number of persons … in Tasmania, on ‘the Mainland’ and around the world) have concerns about the case that the DPP put to the original (2010) trial court.
What does the CCA’s failure to produce a decision on the 2nd Neill-Fraser appeal signify? It may be – as the Editor has suggested – that the Appeal Court is split/cannot decide. “Justice delayed is Justice denied” is the aphorism. It’s not unfair, I think, to suggest that there is a crisis within the CCA.
Neither is it unfair, I suggest, to question the extraordinary decision of the pro-bono team to dispense with all but that of Maxwell Jones’ expert witness evidence. Gone was the ‘winch’, gone was the ‘grey dinghy’, gone was the man walking his dog, meeting two men and a teenage girl on Short Beach, having come ‘out of nowhere’ on a dinghy … six-ish or seven-ish, cutting through the bowling club and then cutting up noisily that night, to the annoyance of the lady next door.
There are many questions/criticisms that arise when viewing the pro-bono’s team’s conduct of the Appeal. Firstly, we should know that it was Barbara Etter’s solid work which paralleled Eve Ash’s Shadow of Doubt. And it was Barbara – and Eves’ – work which enabled the application for leave to make a 2nd Appeal. Then came Barbara’s withdrawal from the case … unexplained … for years. In my view, she was forced out by the ‘pro-bonos’, who may well have said they would not pursue the appeal if Barbara continued on in her ‘solicitor’s capacity’. I think that’s why she withdrew. She did it gracefully, without a ‘song and dance’. She was forced out. I think she avoided public explanation – in my opinion – so as to not weaken/harm Sue’s 2nd Appeal’s prospects.
That was Mr Percy and Belinda Lonsdale – she now elevated to the West Australian bench. So then Mr Galbally (Victoria) filled the gap. And Mr Richter QC, in another of those unexplained-to-the-public developments, then replaced Mr Percy … just days before the 2nd appeal began. What was going on? Why also, did Richter abandon wider matters and tell the court that ‘it was only Vass, they had nothing else.’
And now, we have the incredible situation where the Appeal Court seems ‘stalled at the intersection’, a situation where the ‘Pro Bonos’ are nowhere to be seen and where Barbara Etter and Hugh Selby have attempted to step into the breach and to regain the ground which in my view, was given away by Richter. In my view, it should be Mr Richter & Mr Galbally leading this push for a last minute intervention in the Appeal … they have standing in the court.
The fact that Etter-Selby have approached the Attorney-General, Elise Archer, to ask the CCA to receive and consider their submission … that fact … of going to the A-G, rather than making application to the CCA itself, reflects on the Pro-Bonos’conduct of the Appeal.
There is a depth of matter in this case which is unseen on the surface. Should we trawl deeply? Do we do a ‘John West’ and throw back what doesn’t suit our purpose? What is our purpose? Justice for Sue? The truth to be known? Freedom for Sue? Vindication for Sue? It’s obvious to me, Editor, that a Commission of Inquiry is needed … moreso than ever. For now, with these new revelations, we can appreciate that the Government, being aware of the Etter-Selby documents, becomes either the implement of Justice or its obstruction. I say that because our A-G, Elsie Archer, is the Minister. She is the Attorney-General, the Minister for Justice, the Minister for Corrections and so forth. She is a member of the Tasmanian Cabinet. She is part of the inner core of government in this state. She has responsibility for the welfare of Susan Neill-Fraser, for Neill-Fraser’s access to justice and for Sue’s ‘correction’. She – Elise Archer – has responsibility for Sue’s continued imprisonment.
I support the Etter-Selby approach to Minister Archer, which requests that she ask the CCA to reopen the as-yet-undecided appeal.
Indeed, Garry, a Commission of Inquiry has been needed – and sought by many reasonable people, lawyers included – for years. It would have been embarrassing then, but now it would be so explosive and damaging to so many reputations, it cannot be contemplated. That’s why this mountain of evidence that overturns every aspect of the case against Sue Neill-Fraser is so white hot, the State is terrified to go near it. I don’t think they’ll have much choice, though. Club Tas is just digging itself a deeper and deeper hole…you watch …
I’m watching as I have been for years; I’m waiting as I have been for years and, I’m listening as I have been for years.
Garry Stannus, I’ll comment more extensively later. For now —
Excellent points Garry. Thorough as usual! What is the best step forward? Pro Bono lawyers seem the right ones to make the application to re open appeal based on all that is coming out in last few weeks. However as Minister Archer, with many years in her role, and as you rightly pointed out that her other portfolios also charge her to protect Sue as a prisoner, should act, even if it is just to recommend to the judiciary to take note of the ‘white hot’ revelations. Otherwise the build up of egg on faces by inaction, may end up making these state decision makers unrecognisable!