Andrew L. Urban
Australians concerned that Sue Neill-Fraser is destined to spend her tenth year in prison despite it being now known for sure by the legal system* that she is innocent of the murder conviction that put her there, would agree that reform across the legal system is badly needed. Former High Court judge, Michael Kirby would also agree.
This is what The Hon. Michael Kirby AC CMG# said on the subject at the Australian National University National Law Reform Conference Canberra, 15 April 2016:
“The fact that this conference has occurred is, I believe, the product of two developments. First, a recognition that every professional lawyer is necessarily involved to some degree in consideration of the defects, injustices and gaps in the law. And secondly, a recognition that the institutional machinery for addressing law reform (whether in Parliament, the courts or permanent institutions of law reform) are insufficient and ineffective to do the job, and increasingly so.” # Justice of the High Court of Australia (1996-2009); President of the New South Wales Court of Appeal (1984- 96); Judge of the Federal Court of Australia (1983-4); Chairman of the Australian Law Reform Commission (1975-84).
That was almost exactly three years ago. To date, no reforms of any kind have been identified by any institution of the law, never mind addressed.
A summary of proposed reforms – from the investigation through to the trial stage – was drawn up even earlier, at the November 2014 Symposium on Miscarriages of Justice (Flinders University, Adelaide) which we reported here
and which was included in my book, Murder by the Prosecution (Wilkinson Publishing) published in September 2018. No Attorney General has seen fit to request the Australian Law Reform Commission to enquire into any of these matters.
That summary refers to reforms needed in the areas of police investigations, forensic scientists, prosecutors and judges. The Sue Neill-Fraser case offers examples of mistakes in every category identified.
The Symposium summarised reforms needed as follows –
Police investigations:
training to avoid ‘tunnel vision’ approach
training to adhere strictly to investigation procedures, notably accurate record keeping, witness statements, evidence collection
management culture to emphasise serving the court not the prosecution
In the Neill-Fraser case:
* A sample of DNA found on the deck of Four Winds could not be matched immediately and was disregarded in the investigation; it was later matched to Meaghan Vass, months before the trial, but the brief of evidence was not changed and Neill-Fraser went to trial.
* Neill-Fraser was the only suspect (tunnel vision).
* Sue’s first husband was never interviewed by police.
* Stephen Gleeson and another man (both about 50 at the time) should have been persons of interest during the investigation. Gleeson was living in his yellow Ford near the water’s edge in Sandy Bay at Rowing Shed point. The second man’s yacht was moored nearest the Four Winds. Both men had a history of violence. These two men were not formally interviewed until 2012, three years after the murder. The interviews were unsatisfactory, as Colin McLaren details in his book, Southern Justice (Hachette).
* Notes and records should have been kept of key briefing meetings and critical decisions made. An RTI response from Tasmania Police dated 18 September 2012 advised that “All investigation team briefings were verbal and tasks allocated on whiteboard (no permanent record exists).”
Forensic scientists, laboratories, professional bodies:
develop a system of quality standards, with documented policies and procedures
training to explain evidence in court so that it is understood
requirements for validation of evidence
training to avoid contextual bias
emphasis on serving the court not the police or prosecution
In the Neill-Fraser case:
* The forensic pathologist was asked to provide an expert opinion to the jury as to whether an older person, perhaps a bit frail, could be killed by a blow to the head with a wrench. This evidence was inadmissible.
* The testimony of the forensic scientist was inadmissible: the witness said that it was possible for her to distinguish between a positive response (to human blood) and a false positive response (to other substances) by the quality of the glow or sparkle, and the duration of the glow. At other times she said that she could make such discriminations on the basis of her “experience”. These were the type of explanations which have been rejected in numerous previous cases. They do not accord with basic principles of scientific method.
Prosecution:
Adherence to rules of law (eg not presenting speculation as fact)
Explain forensic evidence rationally
Presentation of evidence fairly
seeking conviction must be subservient to seeking of truth
accountability: penalties to apply for misconduct
In the Neill-Fraser case:
* The jury was told by the Director of Public Prosecutions (DPP) Tim Ellis SC, that Bob Chappell was most likely killed by a blow to the head – in total absence of any evidence, since Chappell’s body has not been found.
* The jury was given the strongest impression by the DPP and the judge that a wrench was the weapon – with no supporting evidence.
* The jury was told by the DPP that the DNA of Meaghan Vass on board the yacht – the scene of the crime – was a red herring.
* The jury was told by the DPP that Sue tried to clean up after the crime with latex gloves – but it was Tim Chappell’s DNA (Bob’s son’s) on the inside of a latex glove found and analysed, not Sue’s.
* The jury was told Sue Neill-Fraser used red herrings to divert police like suggesting there may have been drugs hidden on board the yacht when they bought it at Scarborough Marina and sailed it down only a month prior to Bob’s disappearance. Yet the very day the jury went out to consider their verdict, one of the biggest cocaine busts was made by AFP at Scarborough Marina on a yacht.
* It was proposed that Sue tied a fire extinguisher to Bob’s body to weigh it down but there is evidence the fire extinguisher was not even on board the yacht, nor would it be of sufficient weight.
* A blurry image of a car from an ATM machine was used to suggest Sue was in her car driving in Sandy Bay Rd – but at the same time as she was supposedly out on the river dumping the body – and there was insufficient fuel used by Sue’s dinghy.
Sue Neill-Fraser, Australia Day 2009
* A witness (Mrs Zochling) was said to have seen and heard
Anne Sanchez, Australia Day 2009
Bob and Sue arguing on the morning of Australia Day 2009 but on seeing Sue in court and Bob Chappell’s sister Anne Sanchez in court she realised that she had seen Bob not with Sue, but with Bob’s sister on the morning before. But this was not clarified for the jury – wrong woman, wrong day. (The prosecution was trying to show conflict between Bob and Sue.)
* It was suggested Sue searched on her computer to look at Galapagos Islands – as something she wanted to do without Bob, supposedly after killing him. There was absolutely no basis for any such presumption. Sue in fact searched together with Bob as this was a place on the way by boat to his sister who lived in Ecuador.
* The prosecution address to the jury was in breach of prosecution guidelines, and seriously prejudicial. This included the suggestion that Sue was somehow involved with the disappearance of a young man, which she had nothing to do with. (The defence should have been vigorously demanding intervention by the judge.)
Judges:
Demand clarity and understanding by jury of scientific & forensic evidence
Ensure prosecutors adhere to rules of trial behaviour and fairness
Accountability: penalties to apply for misconduct
In the Neill-Fraser case:
* The judge failed to disallow the prosecution’s speculation without evidence about the murder scenario. (The defence should have been vigorously demanding intervention by the judge.)
* The judge refused to allow the defence to recall Meaghan Vass for fuller questioning; it was her DNA that was found on the yacht at the crime scene.
* The judge’s summing up was clearly in error; he referred to a wrench – echoing the speculative prosecutor – multiple times. (The defence should have been vigorously demanding intervention by the judge.)
These examples from the Sue Neill-Fraser case are not exhaustive; but they are sufficient to demonstrate that this case provides a comprehensive dossier of the errors that – each on their own – lead to wrongful convictions. Together, they are a damning catalogue of misjudgements and errors that are unacceptable in contemporary law enforcement.
Other important reforms suggested by this case include a more responsive appeals system to minimise delays. Serious criminal offences such as murder and rape, are heavily punished. The risk to those wrongfully convicted is therefore enormous. The system must be more demonstrative of its concerns to correcting errors. It is entirely in the hands of the legal profession to devise suitable reforms.
* NOTES:
On March 21, 2019, Justice Brett of the Tasmanian Supreme Court granted Neill-Fraser leave to appeal her murder conviction. It is estimated that the appeal will not get to court until later in 2019, and that the decision on the appeal may not be handed down until early 2020. And she will still be in prison …. Neill-Fraser was arrested on August 20, 2009; her trial was held in September/October 2010. Meaghan Vass had – first on 60 Minutes (March 10, 2019) and then in a sworn statement to the court, admitted she witnessed the murder on Four Winds and Neill-Fraser was not the killer.
In light of Robert Richter again stating that a royal commission must occur into the handling of this case, where are the responses from the Tasmanian Premier, Attorney General, DPP, judicial system and last but never least, police. For the acting commissioner to continue to state he has full confidence in the investigation is ridiculous!!!! My best guess is that there may be many careers that would be placed at risk if any independent investigation occurred right from the top down including the Premier and Chief Justice. We will not go away until this is corrected.
Its a stretch to say that it is “… now known for sure by the legal system that she is innocent”. An unreliable witness has come forward and again made a sworn statement that could turn out to be false, as she has already perjured herself.
The symposium reforms for Police in para 7 are a bit of a laugh; essentially train the Police twice to do properly what they already know from their first lot of training. Like they are a bit thick and need the info punched in twice.
When is reform coming for compensation for wrongfully imprisoned people? That has always largely been the unkindest for victims, as if to rub salt into the wounds.
Despite the Police and the court itself exhibiting bias and false narratives, no one seems to question why the jurors got it wrong. To any intelligent person, SNFs behaviours did make her look guilty, however there is still too many anomalies, and thus sufficient doubt to convict. One has to wonder if the jurors are really intelligent at all to swallow everything that is put before them. Was I in SNFs position I would would opt for a judge only verdict , no way would I want to be judged by folk pulled off the street. Currently I believe judge only trials are only exercised when the defendant cannot afford a legal appeal. I think it should always be available as a choice for any accused.
Thanks for your thoughtful comment, but I must point out that Meaghan Vass’ sworn statement to the court in which she admits having witnessed the murder of Bob Chappell is supported by 1) her DNA found there; 2) by her description of the source of her DAN (her vomit – only she could know that) and 3) by reason: what does she stand to gain by claiming to have been a witness to murder? Her denials in the past were clearly driven by fear for her own safety (of legal and physical risks).
As for police investigation reforms, there is a mountain of evidence to show that despite the training to whcih you refer, it has not always sunk in. Many professional police are admirably able to perform their duties as required by law. But not all.
As for the jurors getting it wrong – actually, many have indeed raised such a question. I devote a chapter to the subject in my next book, No Crime, Much Punishment (due out later this year).
Gruntle Massey
What makes you think that the jurors got it wrong? They made a judgement based on the evidence presented to them and having read a substantial portion of the evidence i believe they got it right. It’s clear that the vast majority here are relying on Meaghan Vass’ claim that she witnessed the murder, which if true, would exonerate SNF however given Vass’ track record of lies i would take with a grain of salt.
Andrew
I’m not going to debate the points you raised however the notion that two young men would go to the trouble of removing Chappell’s body from the boat then putting the body in a dinghy and dropping it overboard, down river, and then attempting to scuttle the yacht by cutting the plumbing pipes as well as locating and opening up the seacock is, i believe, implausible. I don’t know whether a wrench was used on Chappell but i wonder whether the torch onboard was of a metal construction like a MAGlite because Chappell’s DNA from dried blood was found on the torch?
What on earth makes you think anyone is suggest8ng that two men put the body in the dinghy etc etc? And what makes you think Meaghan Vass’ DNA is of no consequence as evidence, coupled with her admission? You can wonder and hypothesise all you like, but hard facts and known evidence is more valuable. Try reading the entire trial transcript for a start.
To reiterate i don’t believe anything Vass has claimed apart from her admission that she was on the yacht at some point confirmed by the DNA evidence. Let’s be mindful and not dismiss that she has continued to flip-flop claiming one thing and then denying it in court so why would anyone believe anything she has to say in relation to Chappell’s murder? I don’t feel the need to read the entire transcript because the Court of Appeal highlighted the important details which you have, apparently given little weight to, and was probative of SNF’s guilt in their judgement. Let’s wait and see what the Court of Appeal decides when they review the fresh evidence shall we?
WOW !!!!!
An excellent and very useful summation Andrew, excellent work as always. It is incredibly frustrating to watch as the Tas establishment diminishes the importance of Meaghan Vass’ testimony or the mounting catalogue of missteps in the conduct of the investigation, trial and appeal. It is difficult to not see actual malfeasance when the whole is put together. That the original trial judge is now Tas Chief Justice is beyond belief.
I agree Diane Kemp it angers me also that it is clear Sue is innocent, but the process could see her remain behind bars for another year or possibly two before her appeal is even heard! Why cant the Government intervene in such situations, this woman, now a grandmother aged in her sixty’s has already spent nine years behind bars, there is now signed evidence to not just support her innocence but completely clears her name, so why must she continue to wait for justice! Its ludacris!
Diane, yes it appears Tasmania is waiting for the SNF Appeal.
However, as I understand it, a Petition for Release CAN be given to the Tasmanian Governor and Attorney General for their consideration and action.
The problem with this is that by convention, the Governor acts on the advice of the Government, and the AG being part of the government. The Attorney General being the first law officer in the state, could exercise powers of release under law, rather than as /with political consideration.
I guess we all have to ask AND keep asking …… “is this going to happen in Tasmania, and as a matter of urgency in the SNF case?”
This article sums up a terrifying litany of errors, omissions and deceits – just reading about this ongoing utter disgrace is disturbing. One can only hope and pray that all will be properly exposed, sooner rather than later. It is troubling that this could occur anywhere, but in Australia? Beyond belief. Where is the Tasmanian Premier, the Attorney General, the Coroner, the Office of the DPP now? What action are they taking, and what will embarrass Tasmania to actually put right these wrongs? Is everyone in Tasmania pottering around pretending that their state is just a stage for the “Emperor Has No Clothes”?! The silence is deafening.
You might recall that in the immediate aftermath of the 60 Minutes interview by Meaghan Vass, Tasmania’s Assistant Police Commissioner Richard Cowling said “police re-interviewed Ms Vass last week when the program’s promotional material suggested a new version of events. “The version of events given by Ms Vass on 60 Minutes is contrary to her previous police interview, contrary to her sworn evidence in court and contrary to last week’s police interview,” Commander Cowling said. When I requested information about that interview to clarify the matter, the police said they would not be commenting. It seems obvious now that the statement by Commander Cowling doesn’t accord with the affidavit Vass has provided the court. The statement also said that at TasPol “We continue to have full confidence in both the original and current police investigators and reiterate that Sue Neill-Fraser stood trial and was convicted by a jury.” That confidence seems badly misplaced. It certainly isn’t shared by others. But it highlights the culture of denial and self protection that is driving official responses to this miscarriage of justice. It also highlights the refusal by the legal system and the Parliament, to do anything about it. It is up to the people of Tasmania to demand action. In the streets if necessary, but certainly in a flood of letters to the media. Activism in a good cause …
Diane, you have posed a great question. Will the Australian Government intervene? Clearly anyone following this case, including all government leaders,ministers,senators, independents etc etc must be witnessing what you and I are witnessing with the public disclosure of this case. One would ask then, are they all going to say “ It’s out of our hands”, or even worse, simply ignore what could actually happen to one of them as has occurred to this woman who remains wrongfully in prison. While she awaits a further hearing one would want to believe that a Government intervention could expedite her waiting time in prison to a Home Detention release, at least until the listing of her Right to Appeal hearing is determined. However we have all seen what has occurred to those professionals who have dared to seek justice for this woman. Diane, I will also ask the same question now, “Will the Australian Government intervene on behalf of this Australian citizen”? and in doing so I would hope that one of Andrew’s readers may have access to an interested Government employee who can take such a decisive step. It is not ‘beyond reasonable doubt’ that we need to have something occur to restore a little faith in our Government systems. Thank you Diane for your earlier remarks and also Andrew for the excellent covering details.
Evidence that is lost, destroyed or withheld is a topic which needs to be reformed too. That the prosecution is not legally obligated – only expected to on the basis of good practice – to disclose ALL evidence to the defense is a cop-out!
It absolutely disgusts me how this can be allowed to drag on like this. Is there anywhere outside the Tasmanian system that this wrongful conviction can be raised to get justice. If this was occurring overseas, the Australian Government would be strongly intervening on behalf of an Australian citizen. Yet no one does anything in this case!!!! Thank you Andrew for again clearly stating what is going on but what can we do to get Sue freed? My anger grows with each day she is kept separated from her family.