The second Red Herring Certificate goes to … Alan Blow (CJ rtd)

The Red Herring Certificate identifies prosecutors and judges who, in our sincere opinion supported by evidence, have helped bring about wrongful convictions. The Inaugural Red Herring Certificate went to Tim Ellis SC, the former Tasmanian DPP whose 2010 prosecution (speculation?) of Sue Neill-Fraser for the murder of Bob Chappell led to what is widely regarded as a wrongful conviction. He called every element that didn’t fit his narrative a red herring. And he had help: trial judge Alan Blow … 

Trial judge Alan Blow. former Chief Justice (official portrait)

Alan Blow (later Tasmania’s Chief Justice, now retired) not only referred to a wrench as a murder weapon in concert with the prosecutor, he failed to stop the prosecutor engaging in impermissible speculations. The judge also failed in allowing the forensic pathologist to offer opinions about an elderly man being killed by a blow from a heavy instrument should not have been admitted; and that a number of the submissions by the prosecutor should not have been made.

The entire research paper in which Moles and fellow legal academic Bibi Sangha detail these (and many other) concerns about the trial is available at http://netk.net.au/Tasmania/Neill-Fraser95.pdf

A few examples from their paper (extracts below, citations omitted) detailing errors in the judge’s summing up to the jury will suffice to fully justify this Certificate:

A circumstantial case is one where there are no direct 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. If there is ‘any rational hypothesis’ or ‘any sensible theory’ consistent with innocence, then Neill-Fraser had to be found not guilty. One criticism of this case is that this explanation was only provided to the jury in the judge’s summing up at the end of the trial. It meant that the jury members had sat through the hearing of all the evidence, no doubt considering how it may have indicated her guilt of the crime for which she was accused, and unaware that pathways to innocence may have been equally important.

It must therefore be established that murder is the only rational explanation of the facts accepted by the jury and that there is no other rational explanation. The judge explained how the obvious alternative explanations relating to disappearance, accident, suicide and third party intervention 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 in support of that conclusion do not do in fact provide support for it. The judge stated 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 there are: inquiries as to other police forces and Medibank and so forth – Medicare and so forth, that have revealed no sign of him still being alive, and there some paragraphs in the agreed facts … as to inquiries that were made and revealed no evidence of him still being alive. The references to ‘no sign of him still being alive’ is consistent with both disappearance and death and provide no basis for discriminating between the two. 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.

It is important to note that 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. Indeed, 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.’ 180 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 (the disappearance of Mr Chappell and damage to the boat) could be entirely unconnected. There is no logical necessity which ties them together. 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 inappropriately admitted, which we discussed at length earlier in this research report. When those results are excluded, there is no sufficient evidence of any blood or bloodstain pattern analysis which is indicative of a murderous assault or indeed of any assault. Minor traces which were found were entirely consistent with the account provided to the jury of Mr Chappell’s extensive nosebleeds on the boat which required him to be hospitalised and subsequently flown back to Hobart.

The judge also stated, ‘[t]here’s evidence that tends to suggest that Mr Chappell didn’t commit suicide.’ The judge referred to the evidence of 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 families or friends. The same can be said of the comments by the judge noting 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.

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. It is clear that if suicide could not be ruled out of contention as a reasonably possible cause of death, then Neill-Fraser could not be convicted of murder in a circumstantial case. The judge then 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 the application of principles concerning suicidal behaviours. As there was no evidence before the court on this topic, 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.

The judge has also presupposed in what he says that the two events (suicide / scuttling the boat) are necessarily connected and demonstrate some inconsistency. The suggestion is that the scuttling of the boat rules out the possibility of a suicide. But this seems illogical. There is no necessary relationship between the two events. It is clearly possible that one person could commit suicide and another person could come across the empty boat and vandalise it. There is also no necessary inconsistency between the two events. 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 then 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. 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.

The judge then referred to evidence which suggests that Mr Chappell’s body was, ‘taken away and dropped in the unsearched deeper waters of the River Derwent.’ Again, there is no evidence to support this.

*

There is much more, but the reader should find the above sufficient to concur that the trial judge deserves this Certificate and the lack of confidence in the conviction that it supports.

More recipients of the Red Herring Certificate coming soon.