In the wake of public comments from senior police and the prosecutor, former DPP Tim Ellis SC, Lynn Giddings, an observer at the Sue Neill-Fraser trial, responds to the prosecutor’s published defence of the conviction.
While my daughter, Lara Giddings, was Attorney-General at the time of the trial and did not sit in the trial, I did, and therefore would like to respond to Mr Ellis’ opinion in The Mercury (Thursday 16 September, 2021).
My faith in the jury system was shaken to its core by this case – not because of the jury, but because of the evidence either put to the jury or not put that clouded the picture they were given by the prosecutor of the defendant. Let me give you three examples:
The prosecutor wanted to paint a picture of a couple fighting. He brought to the court Mrs Zochling who had seen Bob Chappell in heated discussion with a woman, she thought on Australia Day. This was the “fatal friction” the detectives needed in order to accuse Sue of a possible motive for murder and that is what the jury heard. While in the court, Mrs Zochling said, “the lady in the box”, looking at Sue, was not the same lady she saw on the beach arguing with Mr Chappell. There was plainly an identification problem. At the next adjournment, outside the court, Mrs Zochling identified Bob Chappell’s sister to family as being the woman she had seen. Mr Chappell had taken his sister out in the yacht the day before, on 25th January. Mrs Zochling (now sadly deceased) had the wrong woman on the wrong day, something police should have known well before the trial. Her evidence was irrelevant and should never have gone to court.
A jury is only as good as the evidence they hear or see. They also heard the prosecutor say, “Someone who sought with a pair of latex gloves which she had forgotten that she left on the stove top to clear up as best she could”, but it was not Neill-Fraser’s DNA in the latex gloves. The question for the then DPP is why wasn’t it known at the time of the trial that it was not Sue’s DNA, but in fact someone else’s? And yet, the jury were left with the idea that Sue had used the gloves to clean up after the murder.
I also sat through the Court of Criminal Appeal where this misconception was corrected: transcript of the Appeal, paragraph 151:
Counsel for the Crown now accepts that his mention of the gloves in those ways was inappropriate because there was evidence that a DNA profile found on the glove matched the profile of Timothy Chappell and not the appellant.
Too late for the jury to hear that correction.
Finally, this is what the jury heard from the prosecutor (in his closing address at pp.1392-1393) in a case where there was never a body:
She’s walking backwards and forwards and delivers .. a blow or blows, or maybe stabs him with a screwdriver, I don’t know, he doesn’t look round, and so the body doesn’t have any marks of what you’d expect if someone had come down there, a stranger, intent on doing him harm, the body I suggest would have marks consistent only with being delivered by someone who he knew to be there, who he know and expected to be behind him.
“Suggestions” to me are not evidence, but it makes for a powerful and vivid story to tell a jury where there is no body, no weapon and no witness.
Ability, Robin, I would think. Because he is unable, literally, to rebut what you say. Neither the Police Commissioner nor Riley have had anything substantive to say: it’s all about abusing those who criticize the police procedures, name calling, a minority fringe, all that sort of insulting stuff doesn’t carry weight with people who use their brains. If that is the only way they can deal with matters of evidence and logic then (a) it only shows how wrong they were and are; and (b) what a sorry state the justice system is in Tasmania. And not only the justice system. I was gobsmacked when in today’s Talking Point Minister Guy Barnett spouted lie after lie along the lines of the salmon industry being “world’s best practice” when Flanagan has conclusively demonstrated how utterly bad it is. Not relevant to SNF Case, you ask? But it is. These two events just show how flawed the Governing system is in Tasmania. Mate’s deals all round. That’s been the way since Governor Arthur handed out huge parcels of land.
Rejected; your email address cannot be verified.
Can’t find Mr. Ellis’ opinion in The Mercury (Thursday 16 September 2021). I’m from Belgium (Europe), so not all websites and/or newsarticles about the case are available here. Any links ?
Here is the link –
but you may not be able to access it, so below is the text of the article:
THE latest contribution by Lara Giddings (Talking Point, September 15) compels me, reluctantly, to respond.
I conducted the trial of Susan Neill-Fraser, I responded to the first appeal to the Court of Criminal Appeal and to the application for Special Leave to Appeal to the High Court. I did not see Ms Giddings at any of those events, and what she claims to be the “material before me” which makes her “believe” Sue Neill-Fraser to be innocent has not been stated.
It is presumably the same misinformation that the convicted murderer’s supporters have peddled relentlessly, complete with regular personal attacks on anyone or any institution involved in the investigation or litigation who doesn’t share or suit their view.
Her “belief” is of far less consequence than that of all 12 members of the trial jury, a belief in guilt beyond reasonable doubt after a trial that has not been shown in any proper forum to have been legally flawed.
In her article, Ms Giddings gives only one example, that of the evidence of Peter Lorraine.
She suggests that Mr Lorraine gave different versions of the description of the dinghy he sighted to police and that the defence were only given his description of a small tender dinghy of inflatable or solid construction.
She says the defence were not told he once gave a version of a small yellow dinghy and she says “prosecution argued it was the Four Winds dinghy, that is, a blue and white trimmed inflatable Zodiac with a motor”, and “ defence accepted Lorraine’s written statement of fact”. This is untrue. If Ms Giddings wishes to dispute that, she should give the exact passages from the transcript.
The transcript is easily available.
Further, far from Ms Giddings’ claim that the description given by Mr Lorraine of a yellow un-motored dinghy was hidden from defence, it was in fact given in evidence at the trial and therefore made known not only to defence but also to the jury.
I quote from the trial judge’s summing up to the jury (at page 1525, numbers in the extract are his references to transcript pages),
“ (Mr Lorraine) said at 503 that he saw a very small dinghy, at 510 that it was somewhat dark and very small, at 511 he said he couldn’t see an outboard. Sergeant Conroy gave evidence at page 914 that he’d spoken to Mr Lorraine at the time of the initial investigation and that Mr Lorraine had said things to him when he happened to run into him that didn’t find their way into Mr Lorraine’s statement and that he said to him that the dinghy he saw was whitish cream to yellow.”
Ms Giddings’ sole “example” is thus untrue and misleading.
Refuting every Neill-Fraser’s supporters’ claim is like playing whack-a-mole.
Just last week one wrote in another newspaper that Neill-Fraser’s DNA was “not found on the yacht” – a complete untruth.
This is a new addition to the hardy series of untruths and half-truths which are constantly repeated in order to gain credence by their very repetition.
To give but one example, 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.
I wonder if Michael Gaffney MLC was apprised of this before he used parliamentary privilege to push the same barrow?
I wonder if he, or Ms Giddings or indeed anyone who, like them, was not at the trial and did not hear all the evidence, have actually read the Court of Criminal Appeal decision which sets out clearly and very readably the case which had been presented at trial?
It is at http://classic.austlii.edu.au/au/cases/tas/TASCCA/2012/2.html, and is far more authoritative reading than the so-called Etter/Selby papers, and should be considered to be essential reading for anyone wishing to be properly informed.
Ms Giddings concludes with the Neill-Fraser supporters’ catechism, “it was a circumstantial case, there was no body, no weapon and no witness to the crime”.
She knows that none of these things, together or alone, mean the conviction is unsafe at law.
None of them, together or alone, even diminishes the safety of the conviction. So why say it?
Andrew – Mr Ellis’s own court trial needs reviewing as well. I believe him when he said he fell asleep at the wheel of the car he was driving at 110 kph on an open road with a medical condition which put him at a very high risk of being a hazard for road users.
His doctor was just covering his medical professional back by contradicting his testimony because he had failed in his duty of care to his patient by not contacting the road transport department and arranging for him to be placed on a restricted drivers licence.
And by not advising him it was imperative he complied with his treatment plan and especially if he was staying elsewhere he took his breathing apparatus with him. I can understand a little his reluctance to apologise to his victim’s family. Unless it’s part of his character not to apologise in principle for any of his mistakes, another major one of course being the construct he put around an innocent woman for allegedly causing fatal harm to her partner.
NP’s coroner’s report deliberately omits the contradictory view of the causative factor in her fatal injuries. Very odd!!
Lynn, Your eloquent reply to set the record straight unravels facts of injustice…Misdemeanours and misconception twist the law it in dishonesty! The corrupt pursuing of Susan Neil Frasers of a blatant miscarriage of justice is opened up to us.. That the law breakers are meant to pursue the rule of law; yet it is shocking in its contempt of it…Some crooked police and DPP(S) hiding evidence and misrepresenting it is shocking!. Obviously the rule of law has no meaning to any one of them..Not that this surprises me as I know their form from the late 80’s.. Snide bullies and thugs! They dig their hole deeper as there response writ large covers nothing except to mount up a further show of dishonesty!
No body, no murder weapon, so no ability to forensically determine cause of death; no witnesses, no confession, no motive. A few silly untruths told while Sue was trying to ‘Help police with their inquiries’. NO EVIDENCE WHATSOEVER! 26-year sentence. (Reduced to 23 years).
My guess is that the three Appeal judges have a dissenter so they are waiting to hand down their finding as close to Sue’s parole date as possible, so she’ll get out anyway. They can’t have missed the flurry of stuff published in the Mercury. Never mind the Etter/Selby papers, tabled in Parliament!
Moral of Sue’s and many other stories I’ve encountered: NEVER help the police with their inquiries! Put ‘No comment’ on repeat from your mouth. Make the police do their job, all you are required to do is give them your name and address and then DON’T ANSWER ANY OTHER QUESTIONS, no matter how innocent you are! It happened to Sue, it could happen to YOU!
Rejected; your ‘SharkLasers – Disposable Temporary E-Mail Address’ cannot be verified.
If the Appeal judges are delaying their decision until the eve of Sue’s parole then they are making themselves complicit in this wrongful conviction. Has someone asked them to stretch it out?
Oh dear oh dear. Bob allegedly arguing / having a heated discussion with his sister (Ann Sanchez) not Sue, as claimed, then Sue allegedly “maybe stabs him with a screwdriver”, but there is no body ! so how could this folly even be entertained? Plus her DNA not in those latex gloves as alleged, this sounds more like Keystone Cops than a comprehensive and professional investigation ! If it was not so serious it would be laughable. Every person involved in keeping Sue in prison (including past and present) Tasmanian Premiers, Officers of the DPP, Attorney Generals, Police) must have very little conscience? I feel very sorry for Tasmanians who have no knowledge of this case and even sorrier for those who don’t care enough to have this dirty linen aired. A society is judged by how it cares for its vulnerable and mistreated. In my view, right now, Tasmania fails to meet the lowest of standards.
Prosecutor allegedly says; “so the body doesn’t have any marks of what you’d expect if someone had come down there, a stranger, intent on doing him harm, the body I suggest would have marks consistent only with being delivered by someone who he knew to be there, who he know and expected to be behind him.”
Referring to the body that is not available for inspection. Does the comment make any sense? Is it allowed in a murder trial in Australia?
A lot of speculation?
Very weak “evidence”?
Why was this allowed?
Rejected; your ‘SharkLasers – Disposable Temporary E-Mail Address’ cannot be verified.
The Prosecutor is meant to provide the facts of the case.
Why then, unlike witnesses and interpreters, are prosecutors not asked by the Judge to swear an oath about telling the truth? Could someone with legal experience please let me know?
And are there any jurisdictions in the world where the prosecutor does have to swear an oath at the start of a trial?
is nez t Tim
Contesting truth in court based upon hard evidence, is NOT part of the fabric of Sue’s trial. The transcript reads like a comedy of errors, and lots and lots and lots of supposition and how Colin Riley, Darren Hine and Tim Ellis have the temerity to defend the police investigators, and the work they presented to the court, beggars belief. (100 years of (mal) practice between the four on them!!) As for their litany of OMISSIONS!!
It’s an IDENTICAL case to New Zealand’s worst miscarriage of justice case, where the police FRAME an innocent suspect, into the scene of the crime with fallacious testimony.
In a SPIRIT of humility, as Sue has demonstrated when she erred, ALL three men would be enabled to salvage their careers, if they were to unite and call in one voice, for a Criminal Convictions Review Commission to be established. As this point in the comedy to respond with Colin Riley’s word reprisal or be punitive will create fatal friction in progressing improvements to the criminal justice system in Tasmania, which has taken a really big hit to their reputation and good name after an innocent citizen has been living in Hobart under lock and key for 12 years.
Yes,Pauline, I have been wondering what sort of ‘reprisals’ the police have in mind, after reading Colin Riley’s article. Do we understand from what he sent for wide publication ( the Examiner ran a slightly stronger version) that people speaking out about the lousy investigation will invite ‘reprisals’? Does TasPol have a secret word-police division, trained in China? Will they build a new block onto Risdon prison to accommodate dissenters in solitary confinement( which, BTW, the prison doesn’t have! ) It’s all very 1984! Will agitators from outside Tasmania be refused entry permits in future? I have written to the Police Commissioner, asking him these and other questions. I wrote about three weeks ago. Still no reply.No wonder the investigation of Bob’s death was so sloppy, if the Commissioner doesn’t even have the ability ( courtesy?) to answer a letter.
Robin – I am a member of New Zealand’s most investigated family and I don’t believe a drop scandal is left to disclose. This has lead me into other bloodlines, and it has taken me into the Norfolk Plains, Forth and Hobart and seriously and respectfully many Tasmanian’s have a very big issue with DENIAL. It’s part of the fabric within their society which we don’t see as much of in New Zealand.
Premier Peter Gutwein is trying to break this barrier down and I admire him for his efforts. He has allocated funds in his recent budget to appoint Professor’s Kate Warner and Tim McCormack to investigate truth-telling, Treaty and Reparative Justice for the aboriginal community.
He needs to have us remind him, two dates exist in Tasmania’s social history where the need for truth-telling exists, the 12th of September 1803, and Australia Day February 2009.
If he is a true believer in Sue Neill- Fraser’s Innocence or he thinks of her as a perpetrator getting her just desserts, he is obliged to consider his OWN reputation in Tasmanian history, whereby a very REAL possibility exists, according to 25000 plus, that an innocent citizen is living under lock and key in Risdon Prison, which he has overall responsible for during his term in office, and if he does nothing to properly investigate these unfortunate possibilities, by funding a Commission of Enquiry, it’s going to be a very sorry tale to narrate about HIS reputation and good name. Everything he says and does OR omits to do is history in the making, which I know a lot about coming from a family that has so much written about us.
Robyn – as for Colin Riley – he is an expensive burden on the Tasmanian taxpayer if he doesn’t open HIS mind to the TRUTH four of Tasmania’s police’s top investigator’s allowed their testosterone to reduce their intelligence, and get in the way of a properly conducted investigation – their need for power and conquest is exposed in Colin Riley’s wrath – he would show true leadership if he began to advocate for a Criminal Convictions Review Commission which I keep repeating, as a family member assisted in getting one established in New Zealand.
Robyn, part of the problem is low information over how to actually deal with contested TRUTH, but the Premier has to be given credit for trying, in my humble opinion.