In what can be seen as a companion piece to our article, Duty of disclosure lasts forever by Bibi Sangha and Dr Bob Moles, former barrister HUGH SELBY explains why the police and prosecutors are required to disclose to the defence before trial all relevant material that they have about a case and the consequences of its breach…. and says that “taken together, the non-disclosures in Sue Neill-Fraser’s case are so significant that her conviction cannot stand.”
Examples are drawn mostly from the saga that is the Tasmanian case of Sue Neill-Fraser. Prepare to be appalled.
Disclosable material includes not only the material that supports the prosecution, but also material that is useful to the defence.
This requirement reflects our fundamental belief that we follow a fair process to ensure a fair trial.
Prosecutors must be exemplars of conduct that gives the community confidence that a finding of either “guilt beyond reasonable doubt” or “not guilty” properly reflects not just some of the available evidence but all of it.
Although the practical task is to provide the defence with all that material, the prosecution’s duty of such disclosure is to the court that will hear the case.
This is because it is the obligation of all lawyers to uphold the dignity of, and community confidence in our courts. The effect of non-disclosure is to cause injustice, including wrongful convictions, and those results engender a lack of confidence in our courts. [Ed: Non-disclosure can also result in being a ‘fraud on the court’.)
Example of breach: Around Australia Day 2009 when Sue Neill-Fraser’s partner, Bob Chappell, disappeared from their yacht on the Derwent River, Hobart, the police were investigating recent break-ins and thefts from moored boats in that area. A fire-extinguisher was missing from the yacht, which had been scuttled. The prosecution claimed at trial that Ms Neill-Fraser used it to weigh down her partner’s body.
The prosecution failed to adequately disclose to the defence those break ins, that the police had suspects, that the police failed to properly investigate those suspects, that one suspect had ready access to a boat with which to reach moored yachts, that a suspect had the experience to scuttle a yacht, and that they searched the room of a suspect looking for that fire-extinguisher.
Had that information been disclosed the defence could, for example, have pointed to intruders, not the accused, being on the yacht, attempting to sink it, the disappearance of the fire extinguisher being explicable as theft, and the shortcomings in the police inquiries as inexcusable: Neill-Fraser was charged because it suited police ineptness.
Why tactics, but not fairness, support non-disclosure
The obligation to disclose continues both during and after the trial. For example, the prosecution may be given information by the police during the trial that helps the prosecution. To be allowed to use that new material they must get the permission of the court.
That permission will not be given if the court forms the view that the late disclosure was an unfair ploy to gain a trial advantage.
This approach to “fair dealing” emerged only late last century. Earlier prosecutors, like defence lawyers in compensation cases, loved to give unpleasant surprises. A few examples will show why it detracts from either or both just outcomes and court efficiency:
The first example is a civil case seeking money compensation for a work or car accident. The applicant tells their lawyer what caused the accident, what treatment they have had, and what incapacity they still suffer. Based on that information the lawyer commences litigation and claims an amount of compensation that is based on comparable previous cases.
Traditionally the applicant gave evidence at the hearing about their pain and diminished ability to perform daily tasks. When cross-examined by the insurer’s lawyer they confirmed that pain and the physical limitations. The cross examiner then played a recent video made by an investigator showing the “disabled” applicant happily playing football or basketball or cleaning the gutters on the upper floor of their home. The applicant (and their lawyer) is taken by surprise.
What may have looked like a strong case was now, if not hopeless, weak.
The common result was that the case then settled with the applicant getting little, and possibly nothing. One of the factors leading to that outcome is that the applicant’s lawyers now know that the applicant has given them false instructions. The effect of being caught out with a brazen lie is that everything said by the liar client is now suspect: what else was not true? Better to settle, and at least recover enough for lawyer fees, than go on to disaster.
A key difference between civil and criminal cases is that good criminal defence lawyers, unlike civil lawyers for compensation applicants, do not get their client to give them all the facts.
Keep in mind that the civil applicant has to prove their case and they go first. Hence their lawyer needs the full story. But in a criminal case the prosecution goes first, which means that the defence counsel cross-examines the prosecution witnesses.
A lawyer must never knowingly mislead a court by making an argument they know to be untrue, or asking a question they know to have no proper basis.
Therefore, the best criminal defence lawyers are very selective about what they allow their clients to tell them before trial. This ensures that when cross-examining prosecution witnesses they are able to explore possibilities that will raise a reasonable doubt about the prosecution case. If their client told them the full story some of those possibilities might disappear.
Knowing and weighing up those possibilities depends upon the defence being fully informed as to the prosecution case and having been given any prosecution material that helps the defence.
When the prosecution was permitted to “surprise” the defence by calling a “new” witness the effect upon the defence was to upend their case strategy. While experienced and talented defence counsel might be able to quickly adjust their approach to a case and go with the new flow, that adaptability is beyond most lawyers.
Being “blindsided” or “sandbagged” by a prosecutor is an awful experience for both the inexperienced defence lawyer and their accused client. I know, because it happened to me twice. On the first occasion, an appeal case, I “froze” in disbelief because on my instructions (this was an appeal so I knew my client’s factual case from his evidence at the earlier trial) this witness could not exist, let alone give evidence.
Fortunately, the judge, long experienced in criminal cases, took pity and guided me out of that frozen mental state. That done I was able to effectively cross-examine. But if the judge had stayed silent then we would have lost the appeal. Looking back over decades I think it likely that the “new” witness was known for their availability to help police with perjured evidence in exchange for a favour or two, and that the judge recognised the signs.
The second instance was a jury trial. My client was accused of fraud. The case looked good until the prosecution called as a surprise witness a long time colleague of the accused who spilled the beans, all of them.
No cross-examination of that witness would have been effective. However, if we had known of that evidence before the trial then there would have been a plea of guilty and much time and public money would have been saved.
Indefensible examples of non-disclosure
If the new information during the trial assists the defence then it must be shared with them. There may have to be an adjournment to consider how that information affects the trial. Witnesses may have to be recalled. The trial may have to be aborted.
In the 2010 Neill-Fraser murder trial the key witness to place her and the yacht dinghy at the yacht at the right time was a witness who was exercising on shore. He phoned police to describe what he saw and the officer took proper notes.
It is clear from those notes that the witness was observing another yacht and another dinghy. He had nothing to offer.
However, he was induced to sign a statement prepared by a second police officer that, falsely, had him identify the Neill-Fraser dinghy at the yacht. That statement was disclosed. The earlier notes were not.
At trial he agreed that he had signed the statement. The defence had no knowledge of his prior phone chat with the first officer. They had no information with which to counter his “identification”. Please note that there is no suggestion that this witness ever intended to mislead. What was in the mind of the second police officer is unknown.
The first officer advised a member of the prosecution team in court of the original notes.
That should have resulted in the prosecutor being told of this “new” evidence, that new evidence being immediately shared with the defence lawyers, and the judge then being asked to decide whether the trial should proceed (with the witness being recalled) or be aborted.
None of that happened.
An accused may be convicted and then the police and prosecution obtain new material unknown to the accused or their lawyers which clears the convicted accused or casts significant doubt upon the safety of the conviction. It is the duty of the prosecution service to facilitate an appeal, or a fresh appeal (if there has been an earlier appeal by the convicted person that was lost).
Sue Neill-Fraser… paroled in October 2022 after 13 years in prison
For several years before Neill-Fraser’s unsuccessful second appeal in 2021, the forensic services of the Tasmania Police were making inquiries, at the request of the prosecutor’s office, about the implications of the DNA of a young woman found on the deck of the scuttled yacht in late January, 2009.
Issues of interest included: first, whether the DNA was left by her, or left by way of a transfer from her to another person and then to the deck; second, whether it was left on the day of the killing or some days later; and, third, how long could the DNA survive on that metal deck in those weather conditions.
Forensic services made inquiries of another Australian forensic laboratory. They also made inquiries overseas. They received replies a long time before the 2021 appeal hearing. We know all this because of Freedom of Information requests and titbits of released information over a couple of years.
Neither the inquiries nor the responses were disclosed to Neill-Fraser’s lawyers then or at any later time. The appeal court, to whom the duty of disclosure is owed, was told nothing.
Thanks to other research, we know why it was not disclosed. Forensic science has evolved since the 2010 trial when the prosecution told the jury that the DNA was left by transfer. At the 2021 appeal they claimed that if not Australia Day it was left a few days later when the yacht was at a marine yard.
The better scientific explanation in 2026 is that it was left by the young woman on Australia Day.
This is a lay-down case of a serious breach of the duty of disclosure. It is a breach that is exacerbated by the failure since the 2021 appeal to not only come clean about the science developments, but to go to great lengths to resist any and all freedom of information requests.
There is another intriguing aspect to this saga of misadventure that raises the issue of how active does a prosecution have to be in ensuring disclosure.
Around the same period when forensic services were making inquiries about those DNA issues, one of its staff prepared two reports on the DNA issue. The latter report (which updated the first) was clear that the DNA could have been left on Australia Day. It drew that conclusion without reference to several papers published in respected journals that supported that result.
The report was included in the appeal papers, that is, it was disclosed to Neill-Fraser’s legal team. The prosecution, as respondent to the appeal, indicated in court that they would call the author. However, they then failed to do so. Neill-Fraser’s legal team, for reasons unknown, did not demand that they do so.
The result was that the report was not disclosed to the court. This is a separate breach of the prosecution duty.
Consequences of failure to disclose
The consequences of a failure to disclose can range from nothing to an appeal court entering an acquittal.
A trial court may find that the non-disclosure is of no consequence, that it can be cured by further questioning or that the trial should be aborted.
An appeal court can find the non-disclosure of no consequence, that the effect of the non-disclosure is not enough to change the finding of guilt, that it is serious enough that the verdict of guilty should be set aside and the DPP can decide to go to a retrial or do nothing, or that it is so serious that a verdict of acquittal should be entered.
Taken together, the non-disclosures in Sue Neill-Fraser’s case are so significant that her conviction cannot stand. It is a matter for an appeal court to decide whether there should be the option of a new trial or an acquittal.
The Tasmanian Director of Public Prosecutions, Daryl Coates SC, has stood by for years while these non-disclosures have come to light. This has an obvious and continuing negative impact on the reputation of the Tasmanian courts.
It follows that it is up to the attorney-general to immediately instruct other solicitors and counsel to liaise with Neill-Fraser’s lawyers to expedite a fresh appeal. The attorney-general must also fund the full costs of Neill-Fraser’s lawyers. This is not a political question. It is a fundamental legal issue affecting not just Sue Neill-Fraser and her family and the late Bob Chappell’s family, but all Tasmanians.
Separately, a motion to set up a Royal Commission to inquire into the debacle and scandal that stems from the flawed police investigation into the disappearance of Bob Chappell from his yacht on Australia Day 2009, and continues to today, is to be debated in the Tasmanian Legislative Council on Tuesday, March 24.
This is a political issue, but it is one that goes to the heart of Tasmania’s legal system. Doing nothing, or standing on the sidelines waiting for others, is no longer a credible stance. The evidence of inadequate inquiry, blinkered thinking and failure to follow the rules is overwhelming.
The reasons for these failures must be explored, explained, and be the bases for necessary reforms.
Politicians, whatever their party or independent alignment, ought to demand the setting up of that inquiry with wide-ranging terms of reference, conducted by a highly regarded, interstate sitting or former judge with a wealth of criminal practice experience.
In the case of Sue Neil Fraser the whole thing was a narrative the police told with out evidence.
This is a total miscarriage of justice when a person is jailed for years , lives ruined.
What do we know about the missing fire extinguisher ? Dry powder types are non buoyant but displace almost their own weight when immersed in water so would not assist greatly in sinking a body. CO2 types are full of gas and the containers are usually made of lightweight aluminium. Their positive buoyancy could assist to keep an attached body afloat !
The fire extinguisher was part of the prosecutor’s impermissible speculative scenario. It has no role in the case.
2026 03 16
From the (current) Tasmanian DPP Guidelines:
PROSECUTION POLICY AND GUIDELINES
/Director of Public Prosecutions
and
In all fairness, we must question then Justice Blow’s refusal to have Meaghan Vass recalled to the witness stand after Dtv Sinnitt revealed that Vass was absent from Mara House on the night in question … a fact that had not been disclosed to the defence before the trial. In my opinion, but not in the opinion of Justice Blow, this refusal occasioned a miscarriage of justice. The (first) Appeal decision, under Crawford CJ, maintained the MoJ and dismissed SNF’s appeal. This ‘MoJ’ has never been remedied: SNF was unfairly treated, convicted, imprisoned, appeal dismissed, application to HCA rejected … and on its goes. Her treatment in the prison (solitary for writing her ‘day in the life’ – okayed by the prison censor, but not OK with ‘higher up’ – after posting it to you, [Andrew Urban, Editor/Publisher of WCR]; fellow prisoner placed with her in attempt at entrapment, hidden microphones recording her and others’ meetings with legals, now she is forbidden to tell anyone she is innocent or she goes back off parole.
There are quite a few by now who should hang their heads in shame at what they have allowed to transpire. By the way, even the police know who had use of the ‘battle-ship’ grey dinghy – the one seen by Mr Conde. That person, incidentally, is in prison and has a record going back over years. That person prior to the murder had personal knowledge of the Short Beach area … had had use of one of the facilities on that little spit of reclaimed land where the rowing club is. You know, just where Steve Gleeson would park his car and have his little fire (and gas stove) over in the alcove.
It is as if the police and the ODPP do not want to actually bring the killer to justice … and I suggest that they were premature in coming to think that Sue had done it … before Vass’s DNA was identified and by the time it was identified, the consideration that Sue might have been responsible had hardened into a belief that she was … ‘confirmation bias’? … so that Mr Ellis (on receiving the brief from TasPol) could genuinely believe that Vass’s DNA was simply the result of some officer having stepped on her DNA somewhere in town, got in a car when called to the sinking boat and … boom … the DNA gets tramped on board.
Look, on March 24, Legislative Councillor Michael Gaffney will be speaking to his motion calling on the Government “…to establish a Commission of Inquiry to enquire into and report on the correctness of the conviction of Susan Neill-Fraser for the murder of Bob Chappell”
I hope Gaffney’s motion will succeed and that the Govt will set up a Commission of Inquiry. I don’t believe that the truth was arrived at when Sue Neill-Fraser was found guilty of murdering Bob Chappell. I hope that a Commission of Inquiry will be set up and that it will be able to clear up the deficiencies/mistakes of the police investigation and those of the subsequent trial and appeals.
I share your hope, Garry, but despite being a life-long optimist, I can’t imagine the A-G would be brave enough. Unless the review could be guided to an outcome that didn’t embarrass the entire law & political establishment.
Non-Disclosures in the Sue Neill-Fraser Case Mean No Valid Conviction – A Stain on Every Australian Courtroom
In what should be a companion piece to Andrew’s powerful post and the incisive analysis by former barrister Hugh Selby, it is impossible to read the details of Sue Neill-Fraser’s conviction without feeling a deep, visceral sense of injustice.
Here is a woman who has spent more than fifteen years in prison for a crime the evidence simply does not support once the full picture is known. The non-disclosures in her case are not minor oversights; they are so fundamental that, as Selby correctly concludes, her conviction cannot stand.
The duty of disclosure is not some technical rule invented by lawyers. It is the bedrock of a fair trial. Prosecutors are required to hand over everything that could help the defence, not just the material that helps them convict. This obligation runs to the court itself because the community’s faith in the entire system depends on it. When that duty is breached, the trial becomes a charade. The jury never sees the whole truth.
The accused never gets a real chance. Take the fire-extinguisher that the prosecution insisted Sue used to weigh down Bob Chappell’s body. Police knew about a spate of break-ins on moored boats in the exact area around the time Bob vanished. They had suspects. They had a suspect with a boat who could reach the yachts. They had a suspect with the skills to scuttle a vessel. They even searched one suspect’s room looking for that exact fire-extinguisher. None of this was properly disclosed to the defence. Had it been, the jury would have heard a very different story: intruders on the yacht, theft explaining the missing extinguisher, and police chasing the easy target instead of doing their job.
That is not a small omission. That is the difference between a fair trial and a wrongful conviction. And it gets worse. The obligation to disclose does not end when the trial starts. It continues. Yet time and again we see prosecutors treating disclosure like an optional extra something to be drip-fed only when it suits them.
The old “surprise witness” tactic still lingers in practice, even if the law now frowns on it. Defence lawyers are left blindsided, scrambling to adjust mid-trial while the prosecution smiles. This is not justice; it is gamesmanship at the expense of a human life.
Sue Neill-Fraser is paying for that gamesmanship with her freedom.
But let us be clear: Tasmania is not the only jurisdiction where this happens. The Offices of the Director of Public Prosecutions right across Australia have shown the same troubling patterns. In Queensland, within the last 20 years, there have been murder prosecutions where key material that could have raised serious doubt including reliability issues with central witnesses and alternative investigative avenues was never fully shared with the defence. The result? Convictions built on incomplete evidence that later crumbled under proper scrutiny.
These are not isolated mistakes. They reflect a deeper cultural problem inside too many ODPPs: a mindset that prioritises winning over truth. Non-disclosure becomes a tactical tool rather than the ethical obligation it is meant to be. When that happens, every conviction becomes suspect. Every jury verdict carries the shadow of “what didn’t we see?”
Hugh Selby is right to be appalled. So should every Australian who believes in the rule of law. The non-disclosures in Sue Neill-Fraser’s case are so significant that her conviction is invalid. Full stop. She should not be in prison. She should be free while the system that failed her is fixed.
And the same principle applies to every other case tainted by the same prosecutorial failures. Until every ODPP treats disclosure as a sacred duty – not a suggestion – public confidence in our courts will continue to erode. Sue Neill-Fraser deserves better. So does every other person who has sat in the dock wondering why the full story was never told.
The time for excuses is over. The time for accountability and release is now.
Part 2: The Duty That Never Stops – New Evidence, Mid-Trial Bombshells and Post-Conviction Cover-Ups That Leave Convictions in Tatters.
The obligation to disclose does not pause when the trial begins. If fresh material surfaces during the hearing that helps the defence, prosecutors must hand it over immediately. That may force an adjournment so the defence can reassess its strategy. Witnesses may need to be recalled. In extreme cases the trial itself may have to be aborted. These rules exist for one reason only: to protect the integrity of the verdict.
Yet in Sue Neill-Fraser’s 2010 trial, that rule was simply ignored.
The key witness who supposedly placed Sue and her dinghy at the yacht at the critical time was a man out exercising on the shore. His initial phone call to police was properly noted by the first officer. Those notes made it crystal clear: he was looking at an entirely different yacht and dinghy. He had nothing useful to say.
A second officer then prepared a statement that falsely had the witness identifying Sue’s dinghy. That statement was disclosed. The original notes the ones that destroyed the identification were not.
At trial the witness confirmed he had signed the later statement. The defence, knowing nothing of the first officer’s notes, had no way to challenge it. There is no suggestion the witness himself meant to mislead; the question is what was in the mind of the second officer who changed the account.
Even more damning: during the trial the first officer told a member of the prosecution team about those original notes. That should have triggered an immediate disclosure to the defence, a request to the judge for an adjournment or recall of the witness, and possibly an application to abort the trial. None of that happened.
The duty continues long after conviction too. If police or prosecutors later obtain material that clears the convicted person or casts real doubt on the safety of the verdict, the prosecution service must actively facilitate an appeal or a fresh appeal if an earlier one has already failed.
Sue Neill-Fraser was paroled in October 2022 after thirteen years inside. For years before her unsuccessful 2021 appeal, Tasmania Police forensic services at the prosecutor’s own request were quietly investigating the DNA of a young woman found on the scuttled yacht’s deck. They asked whether it was deposited on the day Bob Chappell disappeared or later, whether by direct contact or secondary transfer, and how long such DNA could survive on metal in those conditions. They contacted other Australian labs and overseas experts. Replies came well before the 2021 appeal.
None of those inquiries or responses were ever disclosed to Sue’s lawyers or to the appeal court, to whom the duty is owed. Freedom of Information scraps and later research revealed why: modern forensic science now strongly supports the DNA having been left on Australia Day itself. That is the opposite of what the prosecution told the jury in 2010 and the opposite of what it argued on appeal.
This is not a technical breach. It is a lay-down miscarriage. Around the same time, a forensic staff member prepared two reports on that DNA. The second, updated report clearly indicated it could have been deposited on the critical day without even referencing several peer-reviewed papers that backed that conclusion. The report was included in the appeal papers, so it reached Sue’s team. The prosecution said in court it would call the author. Then it didn’t. Sue’s lawyers did not force the issue. The report never went before the appeal judges. Another separate breach of the prosecution’s duty.
These are not isolated slips. They form a pattern of withholding material that could have changed everything. The consequences of such failures range from minor corrections at trial right through to an appeal court entering an outright acquittal. Taken together, the non-disclosures in Sue Neill-Fraser’s case are so significant that her conviction cannot stand. It is now for an appeal court to decide whether a new trial is even viable or whether the only just outcome is acquittal.
This is not Tasmania’s problem alone. The Offices of the Director of Public Prosecutions across Australia have shown the same troubling reluctance to disclose exculpatory or credibility-destroying material. In Queensland, within the last 20 years, there was a murder prosecution where police held back critical information about the reliability of their central witnesses information that included prior warnings of fabrication and the witnesses’ reliance on non-empirical sources for their “insights”. That material never reached the defence. The jury heard what appeared to be solid evidence without knowing the full context that should have destroyed its weight. The conviction survived until a higher court intervened, but the non-disclosure of those red flags was central to why the case ultimately collapsed.
Every ODPP in the country faces the same cultural temptation: treat disclosure as optional when it threatens a “win”. That mindset turns fair trials into ambushes and leaves innocent people – or people whose guilt was never properly proven behind bars for years.
Tasmanian Director of Public Prosecutions Daryl Coates SC has stood by while these failures have steadily emerged. The damage to public confidence in Tasmania’s courts is obvious and ongoing.
It is therefore the Attorney-General’s responsibility to act now: instruct independent solicitors and counsel to work with Sue Neill-Fraser’s lawyers on an expedited fresh appeal, and fund her legal costs in full. This is not politics. It is the minimum required by the rule of law – for Sue, for Bob Chappell’s family, and for every Tasmanian who expects their justice system to be honest.
Separately, the motion before the Tasmanian Legislative Council on Tuesday 24 March to establish a Royal Commission into the entire debacle from the flawed police investigation on Australia Day 2009 right through to today’s ongoing non-disclosures must be supported. The evidence of inadequate inquiry, blinkered thinking and repeated breaches of disclosure rules is overwhelming.
Politicians of every stripe should back a wide-ranging inquiry led by a highly regarded interstate sitting or former judge with deep criminal experience. The reasons for these failures must be exposed, explained and used to drive real reform.
Sue Neill-Fraser has waited long enough. The system that failed her and that continues to fail the community’s trust must finally be held to account.
And that’s before we get to the matter of prosecutorial misconduct (speculation) condoned by the judge …
exactly Andrew.
Relying on the honesty of any prosecution lawyer is a pipe dream. 15 years ago, prosecuting lawyer Caroline Burnside hid evidence of a witness confession to purgatory, resulting in the incarceration of an innocent man on the old “domestic violence” bullshit. Burnside received a slap on the wrist from the Victorian Law Society while the poor bastard railroaded into the big house, spent a long time locked away. Oh, and by the way, she was/is the wife of the then Victorian Attorney General, the risible “Rob” Hulls.
The adversarial system of law is incapable of anything but corruption. Self interest rules.
Your comment ” Caroline Burnside hid evidence of a witness confession to purgatory, resulting in the incarceration of an innocent man on the old “domestic violence” bullshit.” Am I missing something here should “purgatory” be perjury?