Why Sue Neill-Fraser should not have been charged, let alone convicted

Andrew L. Urban.

“No one needs to go to sea, your Honour,” said David Gunson SC somewhat lightheartedly, just moments into the opening of the murder trial of Susan Blyth Neill-Fraser, on September 21, 2010. It’s eleven years to the day – and the case against her was already ‘at sea’ in the proverbial sense. Here is why.

The late David Gunson SC was defending Sue Neill-Fraser at the trial. What he was referring to was the standard practice of jury viewing some of the physical evidence – in this case the prospect of viewing and physically examining the yacht, Four Winds, where his client was charged by police to have murdered Bob Chappell on Australia Day 2009. How inexplicable that her defence counsel would not want the jury to view the yacht, given that the Crown case was that she killed her partner below the deck and hauled his body up, to then somehow manoeuvre it into the yacht’s dinghy alongside and take it away for dumping in the deep water…somewhere. A considerable (if not impossible) physical feat for a middle aged woman with a weak back. That speculation could well have floundered on the jury’s familiarity with Four Winds.

Having been on board the yacht myself, I am of the opinion that the jury would have entertained considerable doubt about the prosecutor’s speculation as to how Chappell was murdered – and his body disposed of.

Gunson should have INSISTED on a view; why didn’t he? But it should never have got to that. It was not the first mistake.

a parody of justice

What Gunson should have said to then Justice Blow as the trial began is that “No one needs to waste their time with a view, your Honour, because the Crown does not have a case. The Crown has not established that Mr Chappell is dead; Mr Chappell’s body has not been found and without the body, the Crown has not established that if he was murdered, when he was murdered; the Crown has not established time of death – and whether the accused was present at the relevant time and place. I respectfully ask Your Honour to dismiss the charge against my client.”

In effect, I believe that the prosecution reversed the onus of proof. (The prosecution in the Robert Xie case [NSW] likewise took to trial a circumstantial case in which it could not establish time of death, nor the accused’s presence at the crime – yet it, too, was successful in getting a conviction.)

But even before that, the primary mistake was to take the matter to trial. A trial in which everything was an absurd charade, a trial in which nothing was relevant given that the accused was not present at the crime. It was a parody of justice. In a court not short of lawyers.

Whatever the police brief contained, the first imperative for the Crown was to prove that the accused was present at the crime scene at the TIME OF DEATH. Bob Chappell had not been seen since the day before the yacht was found taking water early on the morning of January 27, 2009.

The absence of such crucial primary evidence against Neill-Fraser should have convinced the DPP to reject the brief. For reasons unknown, it was decided to forge ahead with a murder charge against perhaps the most unlikely murder suspect in Tasmanian criminal history. Without that key evidence in hand. Why?

If ever there is an inquiry into the case, that is a question that will need to be answered. Perhaps the first question …

(We have laid the groundwork for such an inquiry)

FOOTNOTE:
The petition calling for an inquiry which passed 25,000 signatures on September 7, passed 26,000 on September 19, signatories coming mainly from Tasmania and all over the Australian mainland, with a smattering from New Zealand, US, Germany, France, Canada, UK,  Hong Kong and South Africa.

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22 Responses to Why Sue Neill-Fraser should not have been charged, let alone convicted

  1. John Ferris says:

    Nit-picking I’m sure and probably not worth publishing but …

    The choice of a fire extinguisher to help “sink” a deceased person would achieve very little. The type most commonly seen on boats are DCP (dry chemical powder) complying with AS1841.5. They are almost buoyant !

  2. John Ferris says:

    Robin Bowles’ book whet my appetite to learn more about what really happened 11 years ago. Having been a “yachtie” all my life (now 78 years of age) intensified that appetite. I have not been aboard Four Winds but am very familiar with similar boats, many amateur built, often of steel, with cruising in mind. They are large above and below deck with good accommodation and storage facilities. Having been on board yourself, Andrew, I am sure your assessment will agree with this basic description. Right from the start of my interest in the case and continuing to this very day is my belief that the proposition of murder and disposal of one person by one other, all unseen, is well nigh impossible, especially by someone with a bad back and a stature like Sue’s. An experienced yacht rigger might succeed given sufficient time and access to blocks, sheets, winches and so on but even so, getting a deceased person up through a hatch to deck level and over the side into a dinghy, then attaching weights, then motoring or rowing to deeper water to “sink” the body, then returning to clean up any trace of the tackle used, tidy up any other evidence of the task, then go ashore without being seen and leaving the dinghy would still be a herculean task to accomplish in a few hours time, during darkness ! What a farce. I hope I live long enough to enjoy Robin’s sequel book which will celebrate Sue’s innocence and freedom, give some closure to Bob’s family and friends, disclose what really happened that fateful time on Four Winds, identify those involved and their reasons why, and last but by no means least, I will read of a long overdue overhaul of the justice system.

    • Tom Cairns says:

      Well, we all need to thank John Ferris for this clear and lucid summary of a point that was raised in one of the episodes of UNDERCURRENT. I think that it was Colin McLaren (correct me if I’m wrong) who graphically showed the improbability of someone of Sue’s physique winching Bob’s body up and over the side, loading him with a fire extinguisher and neatly stowing the rope back on its bracket, and all in the dark, as John says.
      Thank you John; another light comes on.

      • andrew says:

        While I agree with the proposition that it is an impossible task for Sue, I find it irritating that we even bother to talk about it. It was pure speculation by the DPP without evidence. That which is stated without evidence can be dismissed without evidence ….

        • Tom Cairns says:

          Well, it irritates me too, but to me it is a salient and vital issue equating with the lack of a body and a murder weapon and so on. Such things deserve to be held up to scorn, repeatedly, if necessary. We seem unable to learn of any steps to investigate the evidence as to the true culprit’s identity but instead we nit-pick over points of law which only serves the purpose of the wrongful accusers.

  3. Steven Fennell says:

    Obtaining a view, for either the prosecution or the defence is a matter that seems to weigh more heavily in the mind of the defence and that can cause an injustice to occur. The injustice I speak of is the failure to present the evidence in its best light. Looking at diagrams does little if the terrain is not truly represented in a presentation.

    Andrew, from personal experience, I believe that some of the reasons lawyers and barristers are reluctant to undertake a view can include but are not limited to the following:-

    1. A fear of alienating the jury from taking them out of their comfort zone.(This is important because the lawyers are simps and worry about perceptions)

    2. Depending of the location of the view and the logistics to get a jury on sight the defence may not want to inconvenience the trial judge. (Once more the defence was worried about putting the judge out not the benefit to the defence).

    3. Another consideration that was given more weight than it should have was the costs. While I accept that views should be for evidence that is vital or at least important the costs seems to be the lawyers and courts primary consideration.

    There are other reasons that a view could be either overlooked or no considered and for this discussion it is sufficient to make readers aware of what can and does happen.

    Truth has no great weight in a court of law, or in juries considerations only the evidence that is presented or omitted is considered.

    The comments of Geraldine Allan on the matter of a view are accurate, and I add my agreement to these comments:- “How inexplicable that her defence counsel would not want the jury to view the yacht, given that the Crown case was that she killed her partner below the deck and hauled his body up, to then somehow manoeuvre it into the yacht’s dinghy alongside and take it away for dumping in the deep water…somewhere. …” Truly lazy and /or stupid for Sue’s legal team not to have requested a view.

  4. Sue Marsh says:

    As I have mentioned previously, apart from the injustice in the past what is happening now is ridiculous and unbearable. That people with power can leisurely take as much time as they want to make a decision is baffling. WHY is this so, is anyone accountable for the torment Sue is being put through. Shame she was so trusting of the police and naive, all because she knew she was innocent. Why would she think that they would blame her for his disappearance.
    Please Tasmania get behind her.

  5. Williambtm says:

    Andrew, if I may offer the following comment?
    The adroit acuity of Geraldine Allan in her comments must not be placed aside from her intuitive analysis and of her proffered conclusions. I would like to offer that the above is one person in and among Tasmania’s populous that has been put through the mill of collective subjective bias, in place of what should have been pure plain objective bias.
    My respects to you Geraldine.

  6. Noeline Durovic says:

    Andrew Why Why Why seems to be the multi million dollar questions we all question? With all the spilling of the pile up of lawlessness used to pervert cruelty of justice of an innocent woman and her family to hell..Time for accountability of setting up a fully led Commission of Enquiry..With mainland Commissioner His/or Her Assistants – Federal Police Sequestered to act to investigate wrong doing’ wrong doers! Truth must be realised!!!!!

  7. Rodger Warren says:

    Hi Andrew
    The biggest mistake any charged person and their defence lawyer can make is to assume that because they know their client is innocent that no jury could possible convict.
    Thank you again for the Wrongful Conviction report.
    All we can do is to keep trying to get justice mistakes corrected.
    Take care
    Rodger Warren

  8. Brian Johnston says:

    The Xie case was not circumstantial. The whole scenario was invented.
    Bob’s body was never found. He could have slipped overboard, drowned and been swept away.
    To dodge that possibility, the cracked over the head with a wrench hypothesis had to be invented. Not circumstantial. Invented. There seem to be a number of followers that have not grasped, the cops made up their mind before the evidence was in, nominated Sue and built the case around her. Sue did not stand a chance.
    Take the Lindy Chamberlain case they even know which dingo took the baby.
    Why cant Bob Moles bring a team of academics together to improve the justice system.
    Please do not mention the CCRC.
    There are other cases. Why wont Australians get involved with those. There are many.
    Shall I name them?
    I do not understand Sue not wanting it though I believe the supporters should everyday be waving placards outside the Court and the AG’s office.
    Desperate times need desperate measures.

    • andrew says:

      “Why cant Bob Moles bring a team of academics together to improve the justice system,” you ask…. Naive, wishful thinking; academics can’t improve the justice system. The legal profession alone can, with the cooperation of the political system, and public support. I wish they did…

    • Peter Gill says:

      Brian – I’m one of the people who would be interested in seeing a list of some other cases with which Australians should get involved.

  9. Geraldine Allan says:

    Yes, Andrew precisely.

    “How inexplicable that her defence counsel would not want the jury to view the yacht, given that the Crown case was that she killed her partner below the deck and hauled his body up, to then somehow manoeuvre it into the yacht’s dinghy alongside and take it away for dumping in the deep water…somewhere. …”
    Inexplicable, and to be blunt — stupid, imho.

    For $money paid (I’ve heard rumour only of total cost) that Sue paid her barrister/legal representative(s), the standard of representation is incomprehensible and grossly unacceptable to me. Yet, no accountability required.

    I’ve come to learn through both personal experience and observation of other cases, that barristers and legal practitioners generally are not investigative-minded. Rather, they’re primarily driven and preoccupied by the order of the court; the processes as set down by procedural rules. Defence of the client comes somewhere down the list of priorities.

    Re-iterating, I am writing from personal experience, and in this instance
    1. very close to home;
    2. pre-trial substantial funds must be paid into trust account to ensure barrister is assured of payment for service, whatever standard is delivered.

    Surely 2) above doesn’t encourage 100% diligence/effort in pre-trial preparation and conduct of trial thereby allowing a tardy practitioner (and they exist I assure readers) to take his/her foot of the ‘excellence in service’ pedal?

  10. Pauline Chalmers says:

    I’m following Sue’s case with interest as I don’t like my family members living in Australia without the protection of a Criminal Convictions Review Commission.

    And you can’t help but CONCLUDE there is a cultural characteristic, that sitting upon and ignoring an injustice is part of the fabric of the society.

    I had a family member who initiated and drove the overturning of a miscarriage of justice conviction in New Zealand and I can HONESTLY state we live in a culture that is a lot more open minded.

    I believe it is demonstrated in our ability to confront our past and address the harm caused to our indigenous population during British colonisation to the best of our ability.

    So when it came to Teina Pora there was not the struggle to address an injustice as there is with Sue Neill-Frazer. It is simply ludicrous that anyone would believe she is responsible for Bob’s disappearance – simply ludicrous.

    And it’s unfortunate there seems to be no shame attached to showcasing to the world Australians have a pathological issue with denial in more than just one area than a falsely accused Sue Neill-Fraser.

    It is an absolute stain on your reputation, as is your failure to hold commemorative events as we do in New Zealand to acknowledge the lives lost across the racial divide during British colonisation.

    We have a designated the 28th of October as our Remembrance Day. I just call this DRAGGING of your feet, typical of an underarm bowl at an innocent woman living under lock and key in the State of Tasmania. It’s a stain on the good name and reputation of all Australians, and the three appeal judges (edited for legal reasons).

    The ISSUE is how do you deal with the stain of the TRUTH and keep yourselves in good standing as Australian cricketers struggle to do.

  11. Graham Handy says:

    Would it be a good idea to have a talk to the two Crew members who helped bring the Four Winds to Hobart .

    • Pauline Chalmers says:

      It would be more beneficial to talk to A-G Elise Archer about underarm bowling and the game of denial she is playing. She is to law what Greg Chappell was to cricket.

      • andrew says:

        The A-G should be given the benefit of the doubt that she is waiting to establish an independent judicial review of the Sue Neill-Fraser case immediately after the appeal court hands down its decision; whatever it is. We might expect Sue’s legal team to ask her to do that.

        • Pauline Chalmers says:

          AG Elise Archer is Minister of Corrections with overall responsibility for acknowledging the TRUTH that there may be an innocent citizen living under lock and key in Risdon Prison, a place she has overall responsibility for.

          This truth is being actively contested, but is she playing the game with good sportsmanship when the person in question, has just been shoved into seclusion over an incident she has taken full responsibility and apologised to the authorities for?

          I expect the same level of conduct from her, rather than the underhand bullying she has suppressed Sue with, when sanity is finally restored in the State of Tasmania’s legal system.

          Elise Archer will never have the power to suppress the truth, because it will ALWAYS emerge into the light, because God endowed us all with human reason and rationale thought.

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