Telling it like it isn’t to the Sue Neill-Fraser jury

Andrew L. Urban.

An uninformed or misinformed jury can’t be expected to arrive at a safe, reliable verdict that serves justice. Did Sue Neill-Fraser’s jury hear the truth, the whole truth and nothing but the truth? It seemed more like speculation, malicious testimony and witness error. A case of garbage in – garbage out? 

Sue and Bob

Sue Neill-Fraser, then 56, was accused of murdering her partner Bob Chappell, 65, on Australia Day 2009, aboard their recently acquired yacht, Four Winds. She has always maintained her innocence. Hi body was never found. No murder weapon was found. The Crown stitched together a wholly circumstantial case. But that wasn’t enough: to make it convincing, the prosecutor, then DPP Tim Ellis SC, speculated in detail about how Neill-Fraser might have murdered her partner of 18 years, using a wrench, perhaps, bashing him on the head below deck, hoisting up and dumping him in the dinghy (single handed), dropping the body in the river … because they weren’t getting along.

If we put aside everything we’ve learnt since the trial that discredits the accusation let alone the verdict, and just focus on what the jury heard, we might reasonably conclude that members of the jury were disrespected all round. They weren’t even taken to examine the Four Winds, where Neill-Fraser was claimed by the prosecution (without evidence) to have performed physical acts even powerful, seasoned sailors would not contemplate.

Prosecutor’s evidence-free speculation

Tim Ellis SC, former Tasmanian DPP – prosecutor at trial

MR ELLIS SC: “Now I’ve suggested that wrenches have been on her mind as a sort of implement that she used to kill Mr Chappell.”

“You crept up behind him with a wrench and you banged him on the head with a wrench or something like that.”

“She’s walking backwards and forwards and delivers blow – a blow or blows, or maybe stabs him with a screwdriver, I don’t know…”

“It was a wrench, wasn’t it, or a similar sort of tool with which you struck Mr Chappell from behind and killed him……..Mr Ellis, I have never struck anybody, let alone somebody I loved dearly.”

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Defence counsel elaborating on prosecutor’s speculation:

The late David Gunson SC

MR GUNSON SC: Now just continue this speculation …(cross examining a prosecution witness)

*

Well, let’s think about how you would go about killing somebody on a yacht in these circumstances and the problems you might face one person confronting one other. I suppose you could adopt Mr Ellis’s theory and use the ‘sneak up behind when they’re least expecting and bang them on the head’ (There were no facts to show that a man had been bashed in the head.)

*

Mr Ellis has raised part of this issue, when he said, “Well obviously, she” – that’s his words – “must have winched the body out of the yacht.” Right. That’s a scenario that’s I suppose is reasonably open, given the marks, which the accused, of course, had pointed out. But what are you going to do though once you get your body out of the yacht?

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Prosecution witness poisons the jury with malicious testimony

Phillip Triffett

A malicious witness, Phillip Triffett, and his then partner Maria Hanson, were instrumental in compromising the police investigation into the disappearance of Bob Chappell on Australia Day 2009 – and poisoning the jury’s mind.

At trial in September/October 2010, the prosecutor, Tim Ellis SC, referred to Triffett’s evidence as the ‘sealer’ of the case. This ‘sealer’ evidence consisted of Triffett’s fanciful claim that a decade earlier when they were still on friendly terms, Sue talked to him about murdering her brother Patrick and Bob, too. The police did not disclose before the trial that Triffett had approached them asking if his evidence against Neill-Fraser would be helpful in his own matters due to go to court. That only became known during the trial through an anonymous caller who alerted defence counsel.

On March 9, Detectives Conroy and Puurand had visited Sue’s brother, Patrick, at his home. They said they had information that Sue had previously “plotted to have him murdered” and could be very dangerous. He refuted the proposition, telling detectives, he thought it was “just malicious gossip” and naming Triffett and Hanson as the likely source; they were “at it again”. Once friendly, Bob and Sue had disassociated themselves from Triffett and Hanson a decade earlier in fear of their own safety.

See the full story

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Prosecution witness misidentifies Neill-Fraser

“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.” Letter to the Editor, by Lynn Giddings, who was present at the trial.

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Prosecution witness dinghy description contradicts prosecution’s:

The prosecution wanted to show that the dinghy seen beside the Four Winds on the afternoon of Australia Day, 2009, was NOT some strange dark grey, well worn working dinghy but the smaller, white/blue trim leisure class dinghy of the Four Winds herself. That’s because a different dinghy would sink the prosecution’s narrative. It would mean that it wasn’t Sue Neill-Fraser at the crime scene that afternoon. Someone else was. (The grey dinghy has never been found.)

 The significance of the grey dinghy cannot be overstated: it was seen by at least four witnesses between 3.55 pm and 5.30 pm on Australia Day. According to the Etter/Selby submission (1), we know that Bob Chappell was not seen alive at 5 pm. “If relevant material had been disclosed to the defence before (or even during the trial), the defence could have presented a much stronger alternative hypothesis to the jury.

“The grey dinghy was seen on the afternoon of Australia Day by: Paul Conde, Thomas Clarke, P36 and Jill Ikin. A grey dinghy was also seen on other occasions by Gary Smith, near the rocks where the Four Winds’ Zodiac was found on the morning of 27 January. Only one of those witnesses, Paul Conde, gave evidence at trial. The statutory declarations of both Thomas Clarke and P36 were read to the court (T 2010 p.223 and p.225).

“Mr Conde in his initial statement described himself as ‘an experienced and competent yachtsman’His initial description was simply that of ‘a grey inflatable dinghy’. At trial, he went further and described it as a large dark grey rubber dinghy (T 2010 p.426). In cross-examination (T 2010 p.428) he said it was battleship grey’.

The Four Winds dinghy (police photo)

“In re-examination Mr Conde said that the Four Winds dinghy was smaller than the one he saw (T 2010 p.431). He also said that the dinghy that he saw had a lee cloth across its bow (raised spray guards which stop water coming into the boat in bad weather) and the Four Winds dinghy’s bow was blunter than the pointed bow of the dinghy he saw. He added (T 2010 p.431): the Quicksilver dinghy in the photographs is not the dinghy I saw at five to four on Australia Day last year.”

(1) The Etter/Selby submission is a dossier of documents tabled in Parliament in August 2021 which details many irregularities about the investigation including evidence withheld.

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Exculpatory information withheld from jury:

Trial judge Alan Blow (now Chief Justice)

CT 1486 HIS HONOUR, COUNSEL, JURY ABSENT– SUBMISSIONS, PRIOR TO SUMMING UP, 13.10.10
MR ELLIS SC: The next point is, it was attributed to me that I said it was Mr Chappell’s blood in the dinghy. Now I don’t believe I did.
MR GUNSON SC: Yes, you did.
MR ELLIS SC: Okay – I don’t know why I’d say it
HIS HONOUR: – Well –
MR ELLIS SC: – because I’ve never believed it.
HIS HONOUR: In opening.
MR GUNSON SC: Yeah.
MR ELLIS SC: Oh in opening –
MR GUNSON SC: Yes, in opening.
MR ELLIS SC: Oh okay, I abandon that, if I said it in opening.
HIS HONOUR: All right. Well I’ll do nothing about that point.

(The jury was left with the wrong – inculpatory – impression.)

####

Taken together with the prosecutor’s dismissal of the DNA evidence (placing Meaghan Vass at the crime scene on the boat) as a ‘red herring’, these examples of what the jury heard is clear indication that the conviction stinks little a rotten dead herring.

“Justice will not be served until those who are unaffected are as outraged as those who are. ”  – Benjamin Franklin 

 

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12 Responses to Telling it like it isn’t to the Sue Neill-Fraser jury

  1. Garry Stannus says:

    Regarding your ‘Exculpatory information withheld from jury’, some have attempted to use the evidence of Mark Reynolds (expert witness at the application for leave-to-make-a-second-appeal hearings) in order, apparently, to excuse Mr Ellis from his own opening comments.

    I refer readers to David Killick’s ‘No human blood: expert’ article (The Mercury, 9Mar2018). In it Killick wrote that…

    Dr Reynolds agreed nobody had claimed during Ms Neill-Fraser’s trial that blood was found in the dinghy.

    That – in my view, Editor – misstated Reynolds’ evidence. In fact, Reynolds’ ‘nobody’ response was in the context of agreeing that nobody had claimed at trial that confirmatory tests had returned negative results. Nobody – including Mr Ellis – had claimed that confirmatory tests had shown there was blood in the dinghy. It was the photo of the luminol in the dinghy (a presumptive test only!) that Mr Ellis showed to the jury.

    But Justice Blow, Mr Gunson and various of those on the public benches heard Mr Ellis’s opening remarks (and subsequent examination of Debra McHoul) and concluded that Mr Ellis was claiming that there was blood in the dinghy. The judge himself believed Ellis had said it, “in opening”.

    Mark Reynolds added, resisting Daryl Coates’ line of questioning, that similarly, nobody had been told that 16 confirmatory tests had all returned negative results. The trial jury was left with Mr Ellis’s (uncorrected) opening remarks, the thrust of the suggestive XN of McHoul and the lurid photo – not of luminol showing blood – but apparently, of luminol glowing on itself and its overspray.

    The more I reread Mark Reynold’s evidence on the presumptive tests, the more that I see that he was well ‘across his subject’. Mr Coates, seemed to be floundering. Reynolds was intelligent, informed … and incisive.

  2. Peter Gill says:

    Did the jury also get told that Sue’s DNA was in a latex glove found at the scene, when actually it was someone else’s DNA in the glove? I cannot remember if that was so.

  3. Robin Bowles says:

    How often do we have to go over it? And over it! Why are the Appeal judges taking so long? I bet they are stalling until the closest date possible to Sue’s parole, so if they deny the appeal she has a chance of getting out anyway not long after. Those who know about legal things, don’t throw your hands up in horror at my suggestion ! Don’t say judges don’t do that sort of thing. This case is riddled with things that shouldn’t have been done the way they were, by all members of the so-called justice system. What’s one more? If Sue is home for this Christmas, I’ll stand corrected.

  4. Lisbeth Eastoe says:

    “Bad men need nothing more to compass their ends, than that good men should look on and do nothing. He is not a good man who, without a protest, allows wrong to be committed in his name, and with the means which he helps to supply, because he will not trouble himself to use his mind on the subject.” John Stuart Mill

    The Utas Law Faculty has been obscenely silent on the case of Sue NF. The legal fraternity of this small country town have clubbed together instead to lynch those such integrity and moral courage such as Barbara Etter.

    • Geraldine Allan says:

      Lisbeth, I agree. We witnessed reinforcement in the Supreme Court, Monday 15-18 November 2021, in the part-heard – LPBT v Etter.
      Because the matter is still before the court, one must use caution ⚠️ in comment. Nevertheless, Ms Etter’s evidence, so far, supports our view.

    • owen allen says:

      The Utas Law Faculty has been obscenely silent on the case of Sue NF. The legal fraternity of this small country town have clubbed together instead to lynch those with integrity and moral courage such as Barbara Etter.

      For Lisbeth Eastoe and everyone, Michael Field (former Chancellor of Tas Uni), in 1997, as Leader of Opposition, Tasmania; in his office, told my ex wife and I, “Tasmania Police Force is too corrupt to do anything about.”
      Nobody would help us against red necking.
      We stood up, we were harassed, intimidated, abused, property damage, threatened, and my ex wife was put in a motor vehicle head on situation by a local in a truck; that was when my mind snapped. This is war, and all the authorities in Tasmania offered protection to the local perpetrators.
      Amen. In Jesus Name.

  5. Diane Kemp says:

    Totally agree – where is the rage in Tasmanians??? So many people have knowingly played a deliberate role in misrepresenting so many issues and yet they still prosper in Tasmania. So many who could have acted and who haven’t – and who still continue to not act. Not one of those people involved can read this and not raise a question about this disgrace. What a disservice you do to yourselves and to your professions. Corruption is rife and flourishes under these conditions.
    I am outraged that this has happened to Sue and that Tasmanians think they live in a safe state. It takes courage to speak out – surely there is one of you somewhere who will do this?
    Andrew – agree that this needs to be published wide and far across Australia.
    In the meantime, judges stop dithering and hand down your appeal decision – that way we can all move on to the next move in this disgraceful situation.

    • Peter Martin says:

      My feeling is that the judges are not even dithering in handing down the appeal decision. They are simply not intending to make a decision and have stopped thinking about their obligations. I mean nine months! Fair dinkum unbelievable!

  6. owen allen says:

    LB. Tasmania sucks. Everybody in Tasmania has their group or isolates.
    It is a dangerous place. Anybody can front me for evidence.
    But injustice is apparent to the world and they close ranks.
    See, the cowards in the suburbs, too afraid to be democratic and take on politicians and corrupt police, sneek around in the dark and rob their neighbours, and sell drugs to their neighbours children.
    Some ride Harley Davidsons and Michael Phelan is on their case.
    Cowards bullying their neighbours instead of democratically standing up for justice.

  7. LB says:

    It just beggars belief that this utter shambles has not been fully exposed, especially to every Tasmanian. Just reading it makes me angry and upset; I ask where is the rage in Tasmania? It is a stain not only on Tasmania, but on the whole of Australia, and until it is erased, everyone in Tasmania who could have acted and hasn’t, is living with full knowledge of this travesty. Past and present Premiers, Attorney Generals, Directors of Public Prosecutions, Tas Police all could and should have called for transparent and proper enquires. The collateral damage to those who have tried to speak out is a separate disturbing issue. And that is not okay. Andrew, I urge you to have this piece published in as many media outlets as possible.

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