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.