Tasmanian legal system on trial

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).

Verdict: GUILTY
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)

Verdict: GUILTY
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 –

  1. an intention to cause bodily harm,
  2. the objective fact that the intended bodily harm was such that it could well cause death, and
  3. 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.

Verdict: GUILTY
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.

Verdict: GUILTY
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.

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16 Responses to Tasmanian legal system on trial

  1. owen allen says:

    I am working on how a legal team of Militia can storm Tasmania and arrest those that are perverting the course of Justice under the Magna Carta
    to ensure justice rules.

    • andrew says:

      Your legal team astride a growl of Harleys, no doubt ! :)

      • owen allen says:

        I wish Andrew, but; one man had the skills to do it alone, but no arrest, guilty and sentenced ; his name is Hans Rudel.
        And his former flight instructor would not authorise him active duty when posted to his squadron.
        He became the most decorated pilot, through dedication and fearlessness. I do not glorify war, but sometimes it has to take place. Stuka Pilot. I only read recently when it was at the end he landed behind American Lines because he was a Soviet Tank Buster. He is a mentor to me like Douglas Bader, and many other wartime pilots; and Lest We Forget the soldiers in the trenches.
        And look at Australia now, and Tasmania in particular.
        WTF is going on?

  2. Diane Kemp says:

    The Premier, Attorney General, Member of Parliament, police officers who know the truth and even the sitting Judges for Sue’s appeal. It is way past time for you to stand up and speak out and correct this grave miscarriage of justice. As thinking human beings, it is not possible to continue to ignore all the evidence that has been placed before you that discredits the trial and the total lack of evidence produced then. To continue to keep Sue in prison for something she did not commit and leave those who did free is a travesty.
    No more silence – you have been silent too long already. To continue this way makes you a willing participant and as such, you will be judged and learn what Risdon Prison is like.

    An Independent inquiry will find you guilty of perverting the course of justice – what many of you have alleged and attempted to prosecute Sue’s supporters.
    Stay strong Sue – it is all starting to unravel and many are starting to panic.

    • owen allen says:

      Diane,
      I know you are repulsed, as I am and many others.
      I want to give you Faith, I experienced the Tasmania Way at boot camp level; local protected worker thug.
      Took me to Political Office.
      Lest We Forget the confession, admission by a Very Senior Politician, who stated Tasmania Police are too corrupt to do anything about. WTF??
      Later they proved it to me again.
      Shall I, shall we call for Angel Help?
      I have spare bikes for Hells Angels, but I know Angels Fly and they leave feathers sometimes. My Harley doesn’t leak oil like the older ones.
      I need a Yak 52 or Pitts S2 and L39 for my passion.
      Passion is desire, creates work ethos.
      Fear is Strength.

  3. Pauline Chalmers says:

    Andrew – on February the 11th 2021 Colin Riley issued a press release on behalf of the Police Association calling out AGAINST the psychological injuries and PTSD his members were experiencing in their line of duty. Is it not timely to consider the psychological injury and PTSD the police, lawyers and judges have CAUSED Sue Neill-Fraser and continue to do so. Colin Riley’s mind is closed to the truth her 2010 Trial showcased a public whipping of malevolent words, for a crime she didn’t commit, and denial of this TRUTH continues. It can be claimed the criminal justice system in Tasmania has ALWAYS had it’s defects and deficiencies and it appears professional development is needed to teach the practitioners in law there, the correct procedures they need to exonerate an INNOCENT prisoner, in one of Australia’s worst Miscarriage of Justice cases in Australia’s history. Honestly New Zealand can teach them how. Teina Pora’s case was much more complex than Sue’s case is and we managed.

    • andrew says:

      Professional development … if TasPol employed such management tools it is not evident.

      • Pauline Chalmers says:

        Andrew – if you can be mindful everything you have said and done is history in the making and will be used as a PRIMARY source when this travesty is acknowledged and researched to identify the fatal flaws in the investigative practices that produced a miscarriage of justice in this island State. It is NOT a new phenomenon but as old as the injustice that occurred on the 3rd of May 1804 and the Criminal Justice System has ALWAYS had it’s flaws and deficiencies since my children’s forebear was working as a Magistrate for Governor Arthur in the 1840 -1850’s. It beats me how anybody on the island holds the fallacious belief they live with a perfect criminal justice system. It’s a deluded belief. The Tasmania Police Capability Review Overview version 12 November 2019 makes no mention of building competencies to review police culture and malpractice risk’s and I rest my case.

  4. Noeline Durovic says:

    Andrew, you inform us in a rational way doubling down on not only the utter lack of real evidence pursued by the Task force chosen to produce a murderer of Bob Chappell! Cruelly aided and abetted by the DPP(S) and Judiciary. They fore-go all trust as they all within and from their participation devised the evil of a serious miscarriage of justice to any form of justice as they frame a truly innocent woman. Innocent beyond reproach as the Etter/Selby documents inform! Merit’s research of truth by the Etter/Selby combination of two foremost expert in law! Evidence formalised conclude with out doubt who and how Susan Neil Fraser was so cruely framed without mercy by crookery? I believe the words fiendishly – ugliness of dirty misconduct of lawlessness is what fitted Susan Neil Fraser beyond reason, without motive she killed and murmured her partner of many years whom she loved and cared about deeply! The gravest of misconduct emerges beyond all reason the mind bloody scenario formed in bias methodology ‘she did it with a wrench’ A produced large wrench of no good reasoning or reality was fitted to conjured up a bloody scene of killing? Mercenary,,,wicked …deceptive…diabolical? What manner of rotten persons are all those whom participated in this cruelness? Why do it what did there crookery gain? This was criminality writ large!!!!!!

  5. Peter Martin says:

    I think that the hypothetical penalties could also have a financial penalty applied as a contribution to the sizable compensation that Sue Neill-Fraser must receive when she is exonerated.

    • andrew says:

      And then there is the cost to taxpayers, from the clunky and pointless police investigation, the trial, the efforts to protect the conviction while intimidating supporters and tv crews (Undercurrent) … millions.

      • Whale says:

        Anyone can convict a guilty person– its much more satisfying to get a guilty verdict on an innocent person–for the power seekers who choose these types of professions –they really get their rocks off when they achieve a convjction of an innocent poor little victim– legal advice given to me on a much less serious charge was–” You won’t win–they lie their effin guts out”– so what’s in it for “tbem”– Two of the most horrible little baskets I knew in Vietnam both joined the QLD POLICE .Can you imagine it–nasty pair of second rate swine ! When I was a nine year old child–was the victim of a paedifile Queensland police pig.- Reported this whole stinking business to a Police Sargent in that town a few years later –he had children my age in my school–can you imagine the foul mouthed threatening response- never mind–God got the mongrel later ! Was on a Queensland Jury–the jury foreman was slotted in by the prosecution–was feeding the jury members some nasty derogatory stuff–that didn’t get a mention in the COURT–His job was to get a conviction– which I’m sure he did–i got the hell out of it ! Felt guilty about that action ever since ! No way the accused got a fair trial . If you think that a jury can’t be stacked –you are pretty naive ! Spend a bit of time on how it’s done- quite interesting . On the ABC LAW REPORT some years ago-there was some almost funny stories about the justice system in NT. by senior people in the legal profession- when they were young and worked there when legal aid was introduced- took the police a little while to get used to at least not having open slather to lie their guts out !

  6. Jerry Fitzsimmons says:

    Geraldine, “Elected Representatives………..trusted….” Are you serious, to quote John McEnroe.
    This is why so many are now turning to Independent politicians.
    Party apparatchik’s should be concerned. The day of party politics is winding up.
    Trust in someone who supports ‘the party line’ is waning.
    Look what’s happening to climate change, look what’s happening to legally transparent reforms, look what’s happening in humane terms for genuine refugees from situations like Afghanistan or Syria, look what’s happening at ICAC, NSW, look what’s happening at IBAC,VIC., look what’s happened to Sue Neil-Fraser and ask ‘What have the leaders of the major party’s done to even recognise and acknowledge her wrongful conviction! Do I need to go on?
    The new voices of independents deserve credit, as they have, in every generation.
    They are the one’s we should be listening to for a guideline to our future. My guess is that it won’t be long before we have a new batch of politicians who won’t be following ‘a party line’, and trust may therefore be restored. So not only is the legal system in Tasmania on trial, the political system is also on trial! The independent voice is an apparent choice, could even be your’s. 👍

  7. Rodger Warren says:

    Hi Andrew
    Like many people who read the Wrongful Convictions Report I believe the Tasmanian Justice System is broken.
    I hope the Bob Moles submission is effective, but I don’t think any of us can rely on that.
    Take care
    Rodger Warren

  8. Pauline Chalmers says:

    I’d like Colin Riley to apply the golden rule, to quote him “We are not, however, prepared to remain silent as individuals make unfounded allegations against our members without reprisal ……HERE ARE THE FACTS ……. has he ever read Sue Neill-Fraser’s 2010 Trial Transcript? It’s a narrative woven with micro aggressions and unfounded allegations unsubstantiated with facts and the vivid imaginations of malevolent minds. It was a hate trial and all that was true was evidence of uninvited invaders recorded in a note in Sue’s diary and the primary deposit of MV’s DNA.
    If the Tasmanian Parliament persists without effecting change to this egregious scandal it can only lead to one conclusion – their LACK of capacity. They may need to look offshore to aid them in their dilemma, as it’s become an embarrassment, that will require humility to remedy. I know of someone known for his discretion they could call!!

  9. Geraldine Allan says:

    It’s simple in my mind.
    The guilt is about what TASPOL & ODPP did know & deliberately didn’t tell the jury, as evidenced in the Etter/Selby papers.
    That is evil, wicked, cruel as well as grave misconduct; no ifs & buts.

    ‘Tis now well past the time to bring the real criminals to account and bear subsequent consequences as they’ve earned.

    Elected representatives this is the job you are tasked and trusted with. Please do it ASAP 🙏

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