Andrew L. Urban.
To highlight how badly the Tasmanian legal system went off the legal rails in its treatment of Sue Neill-Fraser, we have drawn up a short list of charges we would argue at court in an ideal world (and outside Tasmania). The charges are based on legal opinions supported by evidence in the Etter/Selby papers and the Dr Bob Moles submission – all recently delivered to Parliament. (There are several other reasons to have the conviction set aside; many known for years.)
The Etter/Selby papers provides detailed, evidence based citations of errors and wrongdoing, primarily by TasPol. Dr Bob Moles’ submission focuses on the requirements of the law that were not met at the trial. Both submissions demonstrate that the rule of law was flouted, from the start (police investigation) to the end (original trial). We acknowledge that Moles would prefer a remedy by consensus, but the realist in us has set out the charges below.
Sue Neill-Fraser was convicted of murdering her partner Bob Chappell on their yacht Four Winds on Australia Day 2009. She was sentenced to 26 years (23 on appeal). Each of the many identified errors and misdeeds are sufficient to require the conviction to be set aside. Here are just three – plus the charge of failing to review against the Minister of Justice:
CHARGE 1 – TasPol: non-disclosure of evidence
THAT members of TasPol acted contrary to the law in withholding/altering exculpatory information and/or evidence.
EXAMPLE: Peter Lorraine’s evidence about sighting the Four Winds’ dinghy on the Australia Day afternoon was incorrect. He didn’t see any of the Four Winds, its dinghy, or Bob Chappell. He saw another yacht, another dinghy, another person. The notes of his first contact with police make that quite clear. But those notes were not disclosed to the Defence. In a letter from the Manager, Operations, Integrity Commission to Mrs Etter dated 25 March 2014 (referring to the Lorraine complaint (MM 13/0137)) it was simply stated that the Commission was advised by Assistant Commissioner Adams that the Sinnitt handwritten notes “were not disclosed to Defence counsel”. (see Etter/Selby papers for more).
Suggested penalty on conviction: Custodial sentence equal to the period served by the accused from arrest until her release.
CHARGE 2 – the prosecution: no evidence to support assertions
THAT the prosecution has not acted in accordance with the general guidelines or the more specific duties which are required of it.
The prosecution guidelines state that prosecutors must be fair, independent and objective. It is a requirement that the prosecutor must not: express by inflammatory or vindictive language, the prosecutor’s personal opinion that the accused is guilty; press the prosecution’s case for a conviction beyond a full and firm presentation of that case; by language or other conduct seek to inflame or bias the court against the accused. In Wood v R119 the Chief Justice stated that the Barristers’ Rules (NSW) state that: A prosecutor must not, by language or other conduct, seek to inflame or bias the court against the accused.
Moles submission: “Mr Chappell disappeared from his yacht and it is (at trial) not yet known what became of him. However, the prosecution case was based upon the claim that Neill-Fraser had beaten him to death with a metal wrench or had stabbed him with a screwdriver. The prosecutor developed the analysis by informing the jury that ‘wrenches had been found to be missing’. It would have been better to say that wrenches had not been found and were assumed to be missing. It was then said that ‘[a] great big fifty three foot boat, they’d need a bit more than a tiny little wrench.’ The suggestion appears to have been that the size of the missing wrench could be inferred from the size of the boat. That would have to be regarded as an invalid inference. It would be more rational to suggest that the size of a wrench would be related to the size of the equipment or machinery it was to be used on. The prosecutor then told the jury, ‘she’s walking backwards and forwards, he’s getting increasingly angry’. There was no evidence whatever to support those assertions. (see Bob Moles submission for more)
Suggested penalty on conviction – if professional immunity did not protect the prosecutor: Custodial sentence equal to the period served by the accused from arrest until her release.
CHARGE 3 – the trial judge: confirming prosecution’s speculation to jury
THAT despite there being ‘no evidence’, in sentencing and in his summing up, the judge was content to accept that Mr Chappell had been struck by a wrench.
The Director of Public Prosecutions suggested that Ms Neill-Fraser killed Mr Chappell by hitting him to the head with a heavy wrench from behind. It is quite likely that that is what happened, but I do not consider that the evidence is sufficient for me to make detailed findings as to the manner of attack. The ‘quite likely’ scenario was not just based upon an insufficiency of evidence, but upon a total absence of it as the judge has acknowledged, and was clearly contrary to the most basic rule of law principles.
The judge could not make a detailed finding about the manner of the attack, because there was no evidence that any attack had occurred:
But here, there’s no evidence as to – well you might think there’s no evidence as to what went on, if you are satisfied that Ms Neill-Fraser killed Mr Chappell. The difficulty though is that because (sic) there’s no evidence as to what happened to Mr Chappell. (see Bob Moles submission for more)
Trial transcript – His Honour Summing Up
1542 So let’s take the example of hitting a man on the head with a wrench. If an assailant who has no wish to kill the victim hits the victim on the head with a wrench very hard you might think that that’s intended – you might be satisfied beyond reasonable doubt that that’s intended to cause bodily harm and that that’s the sort of bodily harm that’s likely to cause death.
1543 So if an assailant hits someone on the head with a wrench, for example, and if that sort of bodily harm that’s intended, a head injury caused with a wrench, is something that could well cause death and the assailant knows that that’s the sort of bodily harm that could well cause death then that’s murder. For example, if the assailant thinks, ‘I don’t care whether he dies or not, I’m so angry with him I’m going to hit him on the head with this wrench and that’ll really hurt him’, then that can amount to murder.
That will amount to murder if you’re satisfied beyond reasonable doubt of an intention to cause –
- an intention to cause bodily harm,
- the objective fact that the intended bodily harm was such that it could well cause death, and
- that that’s something that the person knew, that the assailant knew that that bodily harm could well cause death.
Then the judge went on to provide an example that might have led the jury to think that even if the intention of the accused (Sue Neill-Fraser) was not to kill Chappell, it was still murder. This is what he told them:
The type of murder without an intention to cause death …. That’s a situation where the person who causes death, the person I’ll call the killer, doesn’t wish to cause death and doesn’t even wish to cause bodily harm. The example that springs to mind is a case that was tried here thirty odd years ago involving a man who, as part of his – as part of sexual activity took pleasure in applying pressure to a sexual partner’s neck in order to cause unconsciousness during sex. Now it’s a gruesome and nasty example but it’s the one that springs to mind. He didn’t intend to cause death, he didn’t intend to cause bodily harm, he intended to cause unconsciousness, in fact he strangled the woman. Now in that situation, although he had no wish to cause death or to cause bodily harm, first of all the jury came to conclusion that I’ve got there in (b)(i), his act was likely to cause death. If you apply pressure to somebody’s carotid arteries you strangle them, first they become unconscious and if you don’t release the pressure they can die. So this man went to gaol for murder and one of the bases upon which the jury could have reached their conclusion was this one, so that can – that was an act that was likely to cause death in the circumstances, death is something that could well happen.
Suggested penalty on conviction – if professional immunity did not protect the judge: Custodial sentence equal to the period served by the accused from arrest until her release.
CHARGE 4 – Minister for Justice: failure to establish a review
THAT Tasmanian Attorney-General / Minister for Justice (The Hon Elise Archer since 2017), by failing to establish an independent review, has failed to ensure the administration of justice according to the rule of law in the matter of Sue Neill-Fraser.
“I can say with confidence that the conviction of Sue Neill-Fraser does not comply with the Australian law on this topic (circumstantial cases).” Dr Bob Moles, 2013
It is the Minister’s responsibility as Attorney-General to ensure that the justice system adheres to the rule of law. The Minister’s Department was made aware of serious doubts about the safety of the murder conviction as early as July 2013, with the release of the documentary, Shadow of Doubt. An urgent review of the police investigation on behalf of the Department would have been appropriate.
By the end of 2013, the late Chester Porter QC, Melbourne silk Robert Richter QC, Hobart barrister (now silk) Greg Barns SC, Dr Bob Moles had all called for a review. Troubling details of the case were published in an extensive feature article in the national daily, The Australian. Those calls have been followed over the years by many other examinations by various mainstream media, three books, TV documentaries as well as submissions (eg by Richter) plus individual letters to the Attorney-General.
In particular, the details that were made public in the years from 2017 leading up to the second appeal against the conviction, exhibited an urgent need for a full review. One such crucial detail was the confirmation by Meaghan Vass on 60 Minutes in March 2019, that – as her DNA indicated – she was there to witness the altercation with the victim, Bob Chappell, and Sue Neill-Fraser was not there.
All these alerts were ignored.
Suggested penalty on conviction: Custodial sentence equal to the period from 2017 served by the accused until her release.
NOTE ON PENALTIES
These hypothetical penalties are meant to convey the outrage that ordinary and reasonable people might feel that Tasmania’s entire legal system has flouted the law in pursuit and protection of a conviction readily seen as – at best – unsafe; and even the responsible Minister has ignored that injustice for several years.
But it’s still not too late; an independent review (devised immediately and perhaps under the auspices of Parliament) might help atone for the egregious behaviour of a system meant to protect not persecute citizens.