Andrew L. Urban.
In a rare public comment (Mercury, Sept. 16, 2021) on a case in which he was prosecutor, former Tasmanian DPP, Tim Ellis SC, defends the conviction and refutes Lara Giddings’ claims published the day before. But his comments raise questions …
“THE latest contribution by Lara Giddings (Talking Point, September 15) compels me, reluctantly, to respond,” he begins. After refuting Giddings’ example of the Peter Lorraine testimony, Ellis turns to the matter of “blood in the dinghy”. (The dinghy in which, he had speculated at trial, the murdered, bloody body of Bob Chappell, had been taken from the yacht and dumped in the water by Neill-Fraser…)
“ … in the so called “Etter /Selby papers” much time and space is devoted to seeking to prove that the prosecution’s case that there was blood in the dinghy was wrong and that matters contrary to that proposition were hidden.
It was never the prosecution case that there was blood in the dinghy. I never said the jury could so find at any stage of the trial, and no submission invited them to so find.
Ms Etter knows this well. Ms Etter had complained to the Legal Profession Board (LPB) that I falsely denied after the trial that I had told the jury that there had been found to be blood in the dinghy.
That complaint was examined by the LPB who concluded that there had been no presentation of a blood in the dinghy case and no assertion of it by me and Ms Etter’s complaint was summarily dismissed.
BUT – let’s go to the trial transcript:
CT639: STATE v. NEILL-FRASER P-70 MR ELLIS SC / HOBART 21.9.10 OPENING
“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.”
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 …..
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?
- His Honour Justice Blow (now Chief Justice) indeed did nothing about this point, not even telling the jury that the prosecutor did not believe there was blood in the dinghy. Nor did Ellis. Why not? Like Mr Gunson and His Honour himself, the jury was thus left with the assumption that there was blood in the dinghy, to fit the prosecution’s speculation, as supported by the blue luminol stained dinghy.
- 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 and defence, jury absent…
- Ellis didn’t believe there was blood in the dinghy, so why did he show the photo of the luminal stained dinghy to the jury?
- Did Ellis show the prejudicial photo to the 2010 jury in ignorance of luminol’s proper and accepted use as he claimed in a 2017 response to the Legal Profession Board (see his comment above)? And if that’s the case, why did he say to the jury:
ELLIS OPENING CT71
But the tender itself was also subjected to a screening test for blood called luminol, and what happens with luminol is you put it – you put it on objects where there might have been blood and turn off the lights and it gets lum – it goes luminous in the presence of blood, and so that reacted quite strongly, the tender and the inside of the tender for the presence of blood, and swabs taken from the tender were found to match, with a high degree of probability, Mr Chappell’s DNA. But on the other hand another screening agent for blood taken on that tender showed negative and one of the forensic scientists looked under the microscope to try and find some – what they look for is red/brown indications of blood and couldn’t find any, so some indications of blood, his DNA, but others – others, no.
Issues that Ellis ignores
Flinders University legal academic Dr Bob Moles comments on Ellis’ article defending the conviction:
“It is interesting to note that the former DPP makes no mention of any of the issues I raised in our research paper which clearly demonstrate that –
* the evidence of the forensic scientist based upon luminol test results should not have been admitted;
* that the opinion of the forensic pathologist about an elderly man being killed by a blow from a heavy instrument should not have been admitted;
*that a number of the submissions by the prosecutor should not have been made;
*that some of the directions by the judge were inappropriate.
*It is clear that the errors by the forensic scientist or the prosecutor would individually or together have provided a sufficient basis for the conviction to be set aside,
The research paper is available at http://netk.net.au/Tasmania/Neill-Fraser95.pdf