Strictly legal – seminar provides lesson in law for judge

The President of the Law Society and the Attorney-General of Tasmania must provide legal references if they disagree with the points raised by Dr BOB MOLES* in his address at the seminar, Lifting the Lid on Miscarriages of Justice – The Old Woolstore, Hobart, 24 November, 2022 – The case of Susan Neill-Fraser or else concede that her conviction must be set aside.

A circumstantial case is one where there are no direct evidence or eye-witnesses to the events in question. The surrounding circumstances then provide the only basis for the drawing of appropriate inferences. In such cases there are special rules which apply. In this case the judge correctly observed that in a circumstantial case the conclusion of guilt has to be the only rational conclusion open on the evidence that the jury accepts.

Justice (now Chief Justice) Blow

If there is ‘any rational hypothesis’ or ‘any sensible theory’ consistent with innocence, then Neill-Fraser had to be acquitted. The judge explained how obvious alternative explanations relating to disappearance, accident and suicide could be excluded. If he was mistaken in respect of any one of those, then it would mean that a rational explanation, consistent with the innocence of Ms Neill-Fraser, was still open on the facts and the conviction should therefore be overturned.

The judge dealt with the possibility of disappearance by stating, ‘there is evidence that tends to establish that Mr Chappell is dead and gone’. However, the matters which the judge referred to do not provide ‘evidence’ for it. He said there is, ‘the evidence from the family of not having heard from him’. That, of course, is what they would also say if in fact Mr Chappell had just disappeared.

The judge then observed that police forces, Medibank and Medicare have revealed ‘no sign of him still being alive’. In fact, the underlying observations are that there are no confirmed sightings of him and no activity by him or attributed to him. This is what one finds in all cases where people have ‘disappeared’. In effect, the judge is citing evidence of ‘disappearance’ as if it were ‘proof of death’. This is clearly an invalid and inappropriate inference, and would collapse the distinction between a person who has disappeared and one who has died. The National Missing Persons Coordination Centre states that each year 38,000 people are reported missing in Australia. While 95.5 percent of people are found within a short period of time, there remains approximately 2,000 long term missing persons; those who have been missing for more than three months. It would be irrational to infer that they were all dead because they had not made bank or Medicare transactions. There is no principle by which one can discriminate between the missing and the dead apart from the discovery of the body or evidence of it.

None of this was mentioned in the course of the Neill-Fraser trial to assist the jurors to obtain a sense of perspective in relation to these issues.

The judge stated in his summing up to the jury, ‘[s]o there’s also evidence that tends to suggest that what happened was not an accident.’ However, the factors which he cited failed to support that conclusion. The judge stated, ‘the evidence that the Four Winds was sabotaged tend to suggest there was no accident’.

Clearly, proof of damage to the boat is not proof of damage to the person of Mr Chappell. Indeed, the two events could be entirely unconnected. There is nothing to exclude the possibility that Mr Chappell could have gone off somewhere and later on some people came across the yacht and being unattended, caused damage to it.

The judge also referred to the fact that, ‘[t]he blood in the yacht tends to suggest that there was – that there was no accident.’ This reference by the judge to ‘the blood’ emphasises to the jury the significance of the various (and inconclusive) test results which were inadmissible.

The judge also stated, ‘there’s evidence that tends to suggest that Mr Chappell didn’t commit suicide.’ He referred to Mr Chappell’s son Tim who said that Bob Chappell wasn’t depressed or suicidal. However, such views, even if correct, cannot be said to be contra-indicative of suicide. Tim was not particularly close to his father, and even if he were, there are countless examples of people who commit suicide in circumstances which come as a great surprise to their family or friends.

The judge also noted that Tim said that his father was ‘interested in his work, regarded it as important’. Again, sadly, many people in similar situations do commit suicide. Indeed, much was made throughout this trial, as we saw earlier, of the frailty of Mr Chappell as a factor enabling Neill-Fraser to bludgeon him to death. In his study on suicide, Riaz Hassan noted that suicide amongst older people is associated with declining health and an increasing sense of dependence. As the authors of a recent study on suicide stated, ‘the reasons for a suicide are never really knowable’. They point out that there have been some 30,000 academic papers on suicide published between 1980 and 2011. They cover complex issues in fields such as psychiatry, psychology, genetics, neuroscience and sociology.

None of this was referred to in the evidence at this trial. If one is to conclude from observations about suicidal ideation and ‘interest in work’ to a conclusion about the probable occurrence of a suicide in a specific case ‘beyond reasonable doubt’, then one would have to demonstrate that the conclusion is not only compelling but also consistent with the medical, psychological and sociological studies in this area.

Regrettably, the judge had no expert advice on this topic to assist him, and the best that one could say is that his own intuitive assumptions in this area are not a satisfactory legal basis upon which to encourage a jury to convict someone of murder.

The judge added, ‘and if he did commit suicide it’s hardly likely that he would have scuttled the yacht’. The basis for this probability assessment by the judge is unarticulated, but clearly presupposes principles concerning suicidal behaviours. It represents another issue where the judge is not simply commenting upon the evidence for the assistance of the jury, but is introducing a form of ‘junk’ expert evidence in the guise of ‘comment’, which is clearly unacceptable. If a person was in a frame of mind to inflict life threatening damage to oneself, then why would they not be likely to inflict damage upon their immediate physical environment? A suicidal person might well burn their house down or drive their car off the cliff.

However, to suggest (as the judge does) that a person who is willing to kill oneself, would not be willing to cause physical damage to some inanimate object such as a boat appears to be a non-sequitur.

The judge added that suicide would be unlikely because he wouldn’t have, ‘tied the fire extinguisher to himself and disappeared without a trace.’ This is unacceptable. The judge is not entitled in summing up to the jury to make assertions of fact which are unsupported by any evidence. It is the role of the jury to determine what the facts are. There is no evidence to suggest that Mr Chappell and the fire extinguisher were united in some final, fatal embrace. Neither Mr Chappell nor the fire extinguisher have been located. For the judge to put this proposition to the jury as if it were an established fact is not only prejudicial but invites them to engage in impermissible reasoning and to wrongly exclude the possibility of suicide.

As the judge explained in his earlier remarks to the jury ‘basing your verdict on the evidence means that you mustn’t use guesswork or speculation in arriving at your verdict.’ This is precisely what the judge himself has done. If it could be said that these inappropriate statements by the judge might have influenced the jury in arriving at their verdict, then as with earlier issues, the verdict must be set aside.

*Dr Bob Moles is Adjunct Associate Professor, Flinders University, South Australia and author of several books on miscarriages of justice.

Never mind all the argy-bargy about Meaghan Vass and her DNA, never mind the prejudicial behaviour of the prosecutor, the flagrant incompetence of defence counsel, the use of an unreliable criminal as a key witness or the absence of actual evidence in this case, this sobering analysis highlights just one aspect of the Sue Neill-Fraser conviction that brings shame on Tasmania’s legal system, thanks to a judge careless with the rule of law.
Andrew L. Urban

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23 Responses to Strictly legal – seminar provides lesson in law for judge

  1. Diane Kemp says:

    The directions provided by then Judge Blow to the jury clearly identify the bias against Sue. He misdirected the jury but got away with it and got the outcome he was seeking. Since then, he has risen to Chief Justice and is in charge of overseeing how all judges act. Not only that, for a short time he was Acting Governor!!!
    How can Tasmania ever change when rewards like this are on offer and others do not dare to speak out. The whole power clique would need to be disbanded but there is too much self interest involved to let truth and honesty rise to the surface.
    What a bunch of people involved with a significant lack of ethics by all!!!

    • Owen allen says:

      I doubt anyone connected my dots. The Chief Justice Alan Blow sentenced a female Asian University student to prison; for stealing books.
      Chief Justice Alan Blow and othe Judges have let drug dealers walk, serious offenders rah rah. I blew the whistle to all State Premiers, Prime Minister, Chinese Embassy to President Xi Jinping (he was visiting Tasmania )
      US Drug Enforcement Administration in Canberra, and certain media in Australia, yes the Governor General. I received 2 replies.
      My point, the student was from Singapore. Later a developer from Singapore invests in Tasmania, ( great ) and after Premier Hodgeman absolutely defied Justice, re Sue Neill-Fraser Case, absconded to Singapore as Ambassador to Australia. You work that out and get your head around it.
      Does anyone realise what we are all up against?
      Ciao Owen.

    • Father Ted Whalensky says:

      Was on a jury with a professional jury foreman Queensland style– a truly disgusting experience–His job in this case was to achieve a guilty verdict–i was thrown off the jury– he got the guilty verdict– the judge was happy– the SYSYEM worked as planned !

    • Father Ted Whalensky says:

      It’s no secret that 2 women (2 young daughters) who were do to testify in matters relating to various Queensland Senior Police Criminals–were brutally murdered on behalf of the Illustrious QPS Im not real keen on pigs that murder children ! SO Vass sure must have had the fear put into her– Personally I’m amazed she hasn’t —–we will see ! Come on TasPol– your letting the side down–the heroes could just drive her head first into the ground– as the NSW Policeymens did to that serial nuisance 50 kilo Danny ! That’ll learn him–we will show you the RULE of LAW– bleeding brain ! Have you all seen “them” laughing and congratulating– drove him head first into the floor–If Vass could get her act together–She has already described in detail that Sue wasn’t even on the effing boat– Was she lying ? Which particular Tasmaniac Policeyman has the Vomitious blue cloth in his lunch box ? COMMISSIONER MATERIAL ? ABSOLUTELY !

  2. Owen allen says:

    Rereading, as I do, again and again, Dr Bob Moles has committed a brave, historic and fantastic act to call “Them” out, publicly on an International platform.
    Well done Dr Bob, we are backing you up, as some say, ” Love and Respect” to you, my friend. Owen.

  3. Don Wakeling says:

    The Apple Isle is rotten to the core. The list of officials who caused,and continue to cause total corruption of established principles of the Administration of criminal law, just continues to grow:
    The trial judge, now CJ Blow;
    Prosecutor Ellis, Taspol, the DPP persecutors of lawyer Geoff Thompson; former Sol Gen, now KC O’Farrell; president of the Law Society Simon Gates; Attorney General Archer; the Magistrate who declared that Geoff Thompson perverted the course of justice ( without any evidence at all !!!); the deluded Minister of Police. They stand disgraced before the whole Australian public. .There must be a Royal Commission and they each must be called to answer.

  4. Brian Johnston says:

    Andrew. A circumstantial case is one where there are no direct evidence or eye-witnesses to the events in question.
    Circumstantial evidence is not evidence and it is not sort of evidence and it certainly is not a substitute for ‘real’ evidence.

    All to often the police nominate the guilty person before all or any evidence is in. They become committed to a hypothosis. If real evidence is not suitable it is set aside and they milk circumstantial evidence for all it is worth and they are very good at it.

    The SNF case is not even circumstantial. It is an invention. It is fantasy.
    The sad part is Sue thought she was helping.

    • Owen allen says:

      Yeah, for the uninitiated they suck you in, and lie. They got me, will you come with us to answer a few questions. ( If I refused they would have arrested me, they said later). Answer a few questions and I can go.
      I was arrested anyway. I answered on video, no lawyer, shot myself, but ..
      I represented myself thrice. Lost the dice. Can I be a poet or song writer and sing as Tasmania dies and becomes new like the autumn to spring.

  5. Contessa Antonia Scrivanich de Ivanovich says:

    That Tasmania’s Chief Justice of Tasmania asked the jury in the Susan Neill-Fraser (accused of murder ) case to consider possible scenarios he invented is a frightening precedent which could be used in aubsequent cases ! The Decision which found Susan Neill -Fraser guilty of murder should immediately be set aside as invalid and a gross perversion of the Justice System. An Inquiry is necessary to clean out the ROTTENESS of Tasmania !

    • Father Ted Whalensky says:

      The ” Screen Play” used to convict Sue SNF. is the same EXACT Codswallop used on Lindy Chamberlain and Bradley Murdock–(Raymond Bailey) as the ex Prime Minister said— -” they learn to lie in Police College”– The story of Mendelssohn Miller is quite detailed account as to what happens to a Copper who refuses to lie–so as to achieve the desired guilty conviction of an innocent man–The Police Commissioner–the NSW Policeymens Union and other Police made his life bloody difficult–Miller was lucky to have the support of a Pre Murdock Newspaper — Long gone ! The Queensland Police Commissioner– (Whitrod) had to make a run for it– death threats to him and his family–Lying their guts out is standard practice–“The Necessary Evil ” according to one of Australia’s most intellectual former Prime Ministers–The Australian “Justice” History is rife with Vomitous Aquittals and Convictions– Murder by the State– that Poor little bastard Raymond Bailey–He’ll be in HEAVEN– The Stinking mongrel that put him there will be burning in HELL ! One of the most corrupt murdering Policeymen in Queensland– got Ray Bailey executed- hung by the neck- in that Paradise of Justice–South Australia–Still–I suppose he could have been kicked to death or shot by the courageous Policeymens–We do know of course of the Policeymens involvement in THE HILTON BOMBING and the Whiskey Murders-15 innocents–One Queensland Police Commissioner was accused of Paedophilia– One of the Proud Times In Queensland Policey History– then it got FAR WORSE–The Commissioner in Prison–Wonder if he was bashed and sodomised–ir was it more like a HOLIDAY CAMP for HOT SHOTS ?

  6. William Elliot says:

    In a few words unsurprising totally dysfunctional judiciary and police state where true justice will come to bite these corrupted and incompetent clowns hard on their backsides then Hobartians will see justice prevail and sparks fly as they are on borrowed time and they know it and know they will pay for their total incompetence.

  7. Jerry Fitzsimmons says:

    Great analysis of the legal system Bob Moles. I see now what a professor does! But all jokes aside, this was a shambles and fortunately it’s all there in the transcript for all to see. Then to think this trial judge went on to became someone of notable standing in Tasmania! Christ be with us.
    Andrew, this seminar organised by the support group in Hobart has demonstrated the great work still being done in support of Sue Neill-Fraser and the commentary on this post thus far highlights the need to set the books straight.
    Surely either the Attorney-General or the President of the Law Society could have learned a great deal in simply meeting with Bob and Bibi and may even have had the opportunity to part with some of their own ‘learned’ advice on how the Tasmanian political and legal system operates.
    We could all then have learned a lot!

  8. Ross Cameron says:

    I have followed the case of SNF since I and my wife first came across it many moons ago, initially with the Charles Woolley’s “60 Minutes” segment on the subject. No doubt he and his family might have encountered the same “She done it; No she didn’t” whilst shopping in Hobart. We both came across such conversations from people when baby Azaria disappeared in the NT in the 80’s. Thankfully Ms Chamberlain was totally vindicated.
    What has surprised us since that time is the amazing work that has happened with women who have championed Sue’s cause, including Eve Ash from the start, and other brave women, but not what we might call the main-stream Feminists. Why have such a powerful group of women, with influence, have largely been MIA. Sadly though, it appears now that the most significant advocates for Sue are in fact males.

    • Father Ted Whalensky says:

      Took the little dears 30 years to ADMIT that the poor Sheilas baby was eaten by a dog- the little darlings never appologised to Poor Michael Chamberlain for wrecking his life– the stinking pigs screen play ! Apologise- come bloody off IT !

  9. Rosie Crumpton-Crook says:

    I wrote to both the Attorney-General and the President of the Law Society asking them to meet with Bob Moles and Bibi Sangha while they were in Hobart for the seminar. My correspondence was ignored.

    • Geraldine Allan says:

      Discourtesy personified. How unprofessional! Grrrr

    • Don Wakeling says:

      Such a meeting would not have moved the irrational bias against Sue Neill-Fraser by both the Att Gen and the “Law” Society, even one inch. The Attorney has now flatly stated in Parliament that the Judiciary, the DPP and Taspol all have her confidence. The Society’s President Gates told the press that the public should not criticise the judicial system in Tasmania , or it’s Police, as such criticism could cause people to lose faith in those institutions. They both are fully cognisant of the perversion of the principles of criminal law and procedure on this case but by sheer arrogance and abandonment of ethics, they trash justice in Tasmania. They are both a disgrace to anyconcept of justice and ,frankly, unworthy to be in the company of Bob Moles.

      • Don Wakeling says:

        Upon my contacting the Tasmanian Law Society, an officer of that society pointed out to me that their former president, Simon Gates, in his comments published by the Mercury, were directed only to uninformed critics of the justice and police institutions. That is, that such uninformed criticism could cause the public to lose confidence in those institutions.

  10. Keith says:

    Yet another fabulous article articulating why Elise Archer should act. The frustrating thing is that she appears to be an immovable object. The only thing that can budge her would be extreme public pressure that convinces the Tasmanian public that what they have heard to date is at least questionable.
    I advocate for full page ads in the Mercury, signed by all of the legal luminaries who know that this is an unsafe conviction, funded by members of the two SNF Facebook sites and this Wrongful Convictions page. I’m in for $100, who else is? With 30,000 signatories, surely we can take out multiple ads?

  11. Owen allen says:

    I have previously described Tasmania as a Feudal System, on the record.
    Why, because “they” rule the roost, the senior bureaucrats and police, politicians and cronies in private enterprise, “Party Members”. And has been witnessed with Sue Neill-Fraser case, the Judiciary. Unfortunately for Sue, she is the victim of the highest judicial corruption as per Tasmania Feudal System. If the death penalty was still active Sue would have swung on a rope like Ned.
    Now the Feudal System Tasmania, because of the nepotism, cronyism and corruption reaches out to the suburbs and beyond to very small villages. Locals in a village have open slather when connected to Sandy Bay and Hobart, protection to harass, vilify, break the law. Owen.

    • Michael Smith says:

      If you need confirmation simply look at the Labor Party and the relationship and in-lawship of its parliamentary members.

  12. Owen allen says:

    My question is, why? Because the Judge protects the Prosecutor, who protects the Police, and the Politicians know it.
    I was at a Federal Political Party launch of a contestant at Federal level, a retired State Politician. I pointed out a uniformed police officer whom had been a detective, but demoted for violence, and said to the Party Faithful setting up that police officer is a thug. She replied, that’s how we like them. True, Owen.

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