PREAMBLE
Tasmania’s legal system and political leadership have ignored several calls over the years for an enquiry or a Royal Commission into the 2010 murder conviction of Sue Neill-Fraser. Well, if they won’t, we will. After eight years of investigating the case, we are filling that need in a journalistic sense. The following report is prepared by Andrew L. Urban.
THE CASE
The alarm was raised by the documentary, Shadow of Doubt, made by Melbourne filmmaker Eve Ash, released in July 2013. The film explores the Tasmanian police investigation into the disappearance of Bob Chappell, last seen on Australia Day 2009, on board the yacht, Four Winds, in the Derwent near Sandy Bay, Hobart, which he had recently purchased with his partner of 18 years, Sue Neill-Fraser. By the time the film was released, Neill-Fraser had been charged and convicted (2010) of Chappell’s murder, on scant circumstantial evidence, and had been in prison since August 2009 – still is. Chappell’s body was never found. The first appeal against the conviction was dismissed (2012); special leave to appeal to the High Court (2012) was refused. A second appeal was heard in March 2021; the judges have reserved their decision. The second appeal – see HERE
CALLS FOR AN ENQUIRY
Many people working in criminal law (or just with an open mind) can immediately recognise that the conviction was extremely unsafe and many respected lawyers urged an independent enquiry of some kind into it, as did many in the public:
Dr Bob Moles (legal academic) – independent review 2013
Robert Richter QC & barrister Greg Barns (now QC) – judicial enquiry, 2013
Chester Porter QC – independent enquiry 2013
Andrew Wilkie MP – independent enquiry, 2014
Robert Richter QC – independent enquiry, 2017
Civil Liberties Australia – Royal Commission 2019
Robert Richter QC – Royal Commission, 2019
Public Petition – Royal Commission, 2019 (approx. 25,000 signatures)
wrongfulconvicitonsreport – Royal Commission, 2019 (with Matters Suggested)
A) wrongful convictions report August 15, 2013 – Dr Bob Moles: “This case begs to have a single informed and impartial person to conduct an independent review of it to ensure the manifest failures in its investigation and prosecution are authoritatively determined.
“I can say with confidence that the conviction of Sue Neill-Fraser does not comply with the Australian law on this topic (circumstantial cases).”
“The correct approach would be to say that certain logical inferences can be derived from the evidence, that they are consistent with the guilt of the accused and not consistent with the involvement of any other person. This case does not come close to complying with those basic rational requirements.”
B) wrongful convictions report August 15, 2013 – Robert Richter QC: “This case requires a full judicial enquiry into the investigation and prosecution of the case. There’s no dingo, but there’s significant DNA and other evidentiary material to require answers which are not circumscribed by the adversarial and limited appellate processes.”
(Richter’s reference to the limited and restricted nature of the appellate processes refers to the appeal to Tasmania’s Court of Criminal Appeal which was dismissed – see below – and the special leave to appeal to the High Court which was refused – see Tim Ellis SC below.)
C) wrongful convictions report December 17, 2013 – “There is no doubt in my mind that this case calls for an enquiry. There are very substantial doubts about this case … the evidence is so weak …. it is hard to see how any conviction could stand … Tasmania’s legal system risks being a laughing stock, if it wasn’t such a tragedy.” The words of the late Chester Porter QC on the Sue Neill-Fraser case. Porter and Stuart Tipple – both key players in the notorious Lindy Chamberlain miscarriage of justice – were part of the panel discussion at the special Sydney screening (Chauvel, November 5, 2013), of Shadow of Doubt.
MANUFACTURING THE MURDERER
(investigation & trial; numbers [in brackets] refer to pages of the transcript)
This enquiry sought to identify decisions that contributed to what we believe is the wrongful conviction of Sue Neill-Fraser – and who made them.
Tim Ellis SC – then DPP of Tasmania, the prosecutor who speculated impermissibly without any evidence, how Neill-Fraser murdered Bob Chappell, smeared her as a liar in front of the jury [1249, 1400], and dismissed crucial third party DNA evidence as a red herring [1407, 1408] – and continued to do so to the High Court [Neill-Fraser v The State of Tasmania [2012] HCATrans 213, 7 September 2012], which convinced the judges to refuse Neill-Fraser special leave to appeal. Ellis argued against recalling Meaghan Vass at trial [768-771], after it was discovered she had lied about her whereabouts on the night in question, and whose DNA had been found at the crime scene (the Four Winds).
He called a convicted criminal, Philip Triffett, as a witness, who, we believe, poisoned the jury’s mind with malicious allegations against Neill-Fraser (see below).
Ellis presented the jury with an image of the luminol stained dinghy of the Four Winds, as part of his speculation that Neill-Fraser disposed of Chappell’s body using the dinghy. No blood was found in the dinghy, but even defence counsel & the judge thought that Ellis was claiming there was – as shown in an exchange in the absence of the jury [1486], the essence of which was not passed on to the jury.
The following exchange during Ellis’ examination of the forensic pathologist is impermissible and the expert’s replies are inadmissible, according to legal academic Bob Moles – but went unchallenged by either defence or the trial judge. Because there was no evidence to suggest that such a thing had occurred, and because the jury did not require expert guidance on such a point, he was not legally entitled to express that opinion and he should not have been asked to do so:
[1007] Now, as you would be aware, we don’t have a body in this case, and I want to ask you some questions of a general nature but with particular reference to a sixty five year old man described as somewhat frail and a heavy smoker, if that’s of relevance?
Yes.
Now is it your opinion that such a man could be killed or rendered unconscious by a single blow?
Yes.
By multiple blows?
Yes.
And would it matter to the likelihood – not likelihood – would it matter to the prospect of him being killed or rendered unconscious that such blows might come to his head from behind?
I’m not sure – I’m not quite sure that the relevant bit – I believe that he could be hit on the head, on the back of the head, yes.
[1346, 1393] Ellis also speculated impermissibly what the jury could infer from injuries that Chappell would have … despite the absence of his body; this also went unchallenged by the defence or the judge.
Ellis, in summing up, accused Neill-Fraser of ‘planting’ her DNA on the winches on Four Winds [1413] : ‘quite deliberately made sure her mark was on those winches when she inspected the boat with police the next day. She was told not to touch, she touched both of them and in this Court she says, ‘Oh I did that because Mr Conroy asked me to show him how winches work’. Mr Conroy’s told you of his sailing experience, why would he want to be shown how a winch works, it’s just a complete lie.” Neill-Fraser’s DNA would be all over the boat quite naturally, since it was her boat. In our view, the accusation is misleading – and prejudicial.
(Ellis was the first DPP, then 58, to be relieved of his duties, after a fatal 2013 car accident in which his government-issued Mercedes Benz crashed head on into the Toyota Corolla driven by 27 year old Natalia Pearn. He pleaded not guilty to negligent driving; convicted, he was given a four-month suspended sentence and fined $10,000. Public reaction was swift and angry, with thousands wanting him fired. He had been suspended on full pay of almost $500,000 pa for over a year before he left office.)
Daryl Coates SC – Acting DPP from 2013, appointed DPP in 2015, succeeding Ellis, he continued to vigorously (aggressively, in our view) protect the conviction despite appealable errors that had by 2013 been identified.
Legal academic Dr Bob Moles expressed the view that “the prosecution should concede that appealable error has occurred and make a joint request with defence counsel that the conviction be set aside. If that were to be done, as has been done in many cases in the UK, the conviction could be overturned within a week or two. (It was also done in Farah Jama’s wrongful 2008 conviction of rape in Victoria; when the DNA related error was discovered, Brett Sonnet, the prosecutor, pressed the Registrar on a Friday for an early hearing date and it was listed before three appeal judges (Warren CJ, Redlich and Bongiorno JJ) for the following Monday – the next working day.)
At the second appeal (2021), the DPP sought to break down the testimony of eye witness Meaghan Vass – not in the spirit of serving justice, in our opinion, but to protect the conviction.
Jack Shapiro SC – the enthusiastic second fiddle to both DPPs. He also stated in court that (in relation to the Neill-Fraser matter) Hobart solicitor Jeff Thompson ‘duped’ Stephen Gleeson, by influencing a photo identification by Gleeson (which Thompson denies). Thompson had not been convicted of any wrongdoing. Thompson is yet to face trial; charged in August 2017 with perverting the course of justice, his trial has been repeatedly delayed. In early 2018, Lynda Mason, counsel for the DPP, requested the Supreme Court (Brett J) that Thompson’s trial be deferred until after the Sue Neill-Fraser appeal has been finalised. That sits at odds with the requirement that a person should be tried without an unreasonable delay. It is now over three years since that day. Thompson alerted the judge that he “hasn’t had full disclosure. And secondly I haven’t had the indictment. And thirdly this matter should be held completely independent of any other matter.” Brett J said that as he was dealing with the Neill-Fraser matter, “I think it’s appropriate that this matter be referred to another Judge because I don’t think it’s appropriate I deal with it.” The matter remains in limbo.
Justice Alan Blow AO – trial judge (later Chief Justice), who permitted Ellis to speculate how Neill-Fraser committed the murder without any supporting evidence, complete with an imagined murder weapon (a wrench), disregarding the rules, compounding his error by referring eight times to the imagined murder weapon (a wrench) in his summing up [1493 – 1543]. The judge refused defence counsel’s request to have Vass recalled [774].
A detailed research report on the Sue Neill-Fraser case by legal academics Bibi Sangha and Bob Moles includes the following:
” … the appeal court recognised that the trial judge had stated, ‘there was no direct evidence that the appellant killed the deceased’. It also observed that there was ‘no direct evidence of the circumstances of the homicide.’
Despite this: The judge thought it quite likely that the appellant hit the deceased on the head with a heavy wrench from behind, but concluded that the evidence did not enable the making of a detailed finding as to the manner of attack.
…. ‘quite likely’ is not the standard to be applied in a criminal trial. A conviction for murder requires proof ‘beyond a reasonable doubt’. The judge could not make a detailed finding about the manner of the attack, because there was no evidence that any attack had occurred.
The ‘quite likely’ scenario was not just based upon an insufficiency of evidence, but upon a total absence of it as the judge has acknowledged, and was clearly contrary to the most basic rule of law principles.
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.”
David Gunson SC – the late defence counsel for Neill-Fraser, who, in our opinion, failed to protect his client from impermissible attacks (see above) and to insist on the court adhering to the rules during the trial. Example: following the prosecutor speculating about the amount of blood that might result in a hypothetical head wound when examining the forensic pathologist, Gunson began his cross examination – not by objecting to it but by continuing the prosecution’s inadmissible speculation:
[1010] Now just continue this speculation, I suppose Doctor, and if a person was using aspirin as a prophylactic medication would that have any bearing on the amount of blood that might be expected to flow from either a head wound or a body wound sustained as a result of knife blow?
Detective Inspector Peter Powell – (now retired) who led the police investigation into the disappearance of Bob Chappell, and in our view did not conduct a thorough enough investigation of it. For example, Powell’s team only got around to interviewing two key persons of interest, who always hung around the Hobart foreshore, three years after the event – and that only because they were urged to do so by Neill-Fraser’s team. Sarah Bowles, Neill-Fraser’s daughter, complained about the investigation in the 2013 documentary Shadow of Doubt (by Eve Ash): “What happened was, over and over again, it was alleged that mum had lied. So it gets to this point where you almost have to prove your innocence beyond reasonable doubt and you have to build your own defence by disproving everything that the police say.” Powell and his team – crucially – gave credence to an unreliable allegation by convicted criminal Phillip Triffett that Neill-Fraser had asked him to kill her brother a decade earlier. Neill-Fraser vehemently denies the allegation. The police thought it was probative evidence.
The jury might have expected that notes and records would have been kept of key briefing meetings and critical decisions made by investigating police. 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)”.
Phillip Triffett & Maria Hanson – long estranged acquaintances of Neill-Fraser and Chappell, (there is more to the story of the relationship – for another time) who fabricated testimony against Neill-Fraser, she claims, compromising the investigation to the extent that police confirmation bias drove it. The police did not disclose before the trial that Triffett had made an approach to them asking if his evidence against Neill-Fraser would be helpful in his own matters (illegal ammunition possession) due to go to court. It only became known during the trial through an anonymous caller who alerted defence counsel. Judge Alan Blow found Triffett’s evidence unreliable [1505, 1511, 1512, 1514, 1522, 1559].
Detective Shane Sinnitt – who pursued Neill-Fraser relentlessly, unjustifiably and to the exclusion of all other possible persons of interest. Sinnitt was aware when he told Neill-Fraser on February 5, 2009 that the dinghy tied to Four Winds, as reported by a witness, at 4pm and at 5pm on Australia Day, was a completely different category, shape and colour to the Four Winds dinghy. This was not disclosed prior to trial. Internal TasPol documents confirm that, also prior to trial, Sinnitt was aware that the DNA sample matched to Meaghan Vass was not a transfer. It was a dinner-plate size deposit, “indicative of a large amount of DNA which was more likely to come from body fluids … than a simple contact/touching event,” as stated in an email from Carl Grosser (FSST scientist) on March 18, 2010. The contents of that email would have allowed defence to rebut the prosecution’s ‘transfer’ theory. That email was not disclosed prior to trial.
On March 3, 2009, a covert listening device was installed in the Neill-Fraser home, the warrant signed by Justice Shane Tennant. The next day, Neill-Fraser voluntarily took part in an uncautioned interview at Hobart CIB HQ. She was informed that two people had come forward accusing her of having previously discussed a murder plan. She asked if the informants were credible, thinking of Triffett and Hanson (see above). Detective Conroy told her, “Yes they are, well liked and respected in the community and one has an academic background.” This description was so misleading, she could not identify them as Triffett and Hanson.
FAILING TO ACT/HINDERING REMEDY
(after the trial)
The Court of Criminal Appeal – in 2012, the three judges dismissed the appeal, referring to “a substantial body of evidence that was probative of guilt.” That was incorrect, says Dr Moles: there was no credible evidence which was probative of her guilt. In dismissing Ground 1 (the failure to recall Meaghan Vass resulted in a miscarriage of justice) the CCA speculated as to what evidence Vass might have given and whether it would have assisted the defence.
(Previous) Attorney General Brian Wightman – who failed to act on a proposal from Robert Richter QC & Hobart lawyer Greg Barns, in August 2013, drawing attention to “all the significant new and fresh information” about Chappell’s murder and the doubt thus raised about Neill-Fraser’s guilt. The proposal urged him to set up an enquiry into the case; “the advantages of an Enquiry approach are that it is, and will be seen to be, independent of Government, police, prosecution and defence.”
(Previous) Premier Will Hodgman – who failed to act on another submission for an independent enquiry in May 2017, presented by Robert Richter QC (with Colin McLaren & Eve Ash); the submission was handed to Tasmania Police to investigate, contrary to a request not to do so.
Assistant Police Commissioner Richard Cowling – who issued a statement claiming police re-interviewed Meaghan Vass regarding her March 10, 2019 60 Minutes interview when the program’s promotional material showed her admitting she had been on board Four Winds, the crime scene. “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.” Vass denied his claim and a month later, evidence in court proved her right. When asked, TasPol claimed they were unable to comment “as the matter is before the courts”. Commander Cowling was not restrained by that a month earlier.
Integrity Commission – which dismissed the complaint against Assistant Police Commissioner Richard Cowling, in which I raised the contradiction between his statement to the media and the summary of facts presented in court (see above), regarding Meaghan Vass recanting.
(Current) Attorney General Elise Archer – who has failed to establish an enquiry into this case, thus failing to secure confidence in the Tasmanian criminal justice system. She also refused to address my complaint – and my request to correct the public record – against Assistant Police Commissioner Richard Cowling, claiming the matter was before the court. (The second appeal was yet to be heard.) APC Cowling certainly had no reservations when talking publicly about the case.
Members of Parliament – who failed to ask relevant questions in Parliament or to seek an enquiry over several years when the safety of the conviction came under profound criticism by legal professionals and mainland media. (Exceptions: Andrew Wilkie MP, Independent Member for Clark (calling for an enquiry); and late AG Vanessa Goodwin who introduced the further right to appeal legislation motivated by the Neill-Fraser case.)
Tasmania’s legal establishment – who did nothing to seek a remedy – or at least raise questions – about the conviction, even after renowned defence barrister, the late Chester Porter QC, questioned it on-camera, as we reported on December 30, 2013. See video clip
From 2017 to 2018, the documentary team making the 6-part TV series Undercurrent (Ch 7, March 2019) about the Neill-Fraser case felt intimidated by Tasmanian police, the producers tell me, with phone calls to film crew including an editor, cars were followed, phones were bugged – including discussions with lawyers – hotel rooms entered, secret warrants issued for bank accounts, raids, documentation and film footage seized (in Sydney). It was not screened for Tasmanian audiences in deference to the ongoing legal process.
Tasmanian media – who failed to objectively investigate the case when the safety of the conviction came under heavy scrutiny by legal professionals and mainland media. Exception: The Tasmanian Times (an online community weekly then owned and edited by Lindsay Tuffin) published a wide variety of opinions on the subject (2014-2017), including many who were critical of the conviction, such as this writer.
# Readers blast Tasmanian justice system in the wake of books and TV documentaries on the case (all from the mainland).
CONCLUSIONS
We have focused on the key facts of the case to point out where decisions were made that undermined the proper administration of justice. Our conclusion is that on any objective test, many participants in this case contributed to the wrongful conviction of Sue Neill-Fraser, pursuing a conviction to the exclusion of the truth.
It is deeply troubling that even after the failures of the trial, every effort and opportunity to correct mistakes that led to conviction was thwarted, overlooked, missed or ignored – among them the following:
1 decisions in first appeal in 2011/12 that led to the dismissal of the appeal
2 the argument put to the High Court in 2012 that convinced the judges to refuse special leave to appeal
3 the several serious media investigations and tv shows over several years from 2013 that canvassed the errors and missing evidence in the case – to the point of intimidating the production of the investigative docuseries, Undercurrent, in 2017-18
4 the dismissal (and publicly but incorrectly countering her) of the on-air admission in March 2019 by Meaghan Vass that as her DNA on board indicated, she was an eye witness at the crime scene
5 the ongoing demonisation of Meaghan Vass to discredit her eye witness testimony to protect the prosecution’s narrative, notably at the second appeal in March 2021
6 the repeated refusal by political leaders from 2013 onwards, to initiate an independent judicial enquiry into the case (rationally argued and reasoned), as requested by senior barristers, legal academics and the general public
WHY? That is a question this enquiry cannot answer.
We take this opportunity to make the following points:
A) the privilege of the legal profession to provide its own oversight and the privilege of professional immunity have been abused, to the detriment of justice and to the moral authority on which those privileges rest
B) police investigation methods must adhere strictly to the rules
C) forensic (all scientific) evidence must adhere to the principles of scientific objectivity and accuracy
D) reforms in all areas of the administration of the law are required to address individual and systemic failures that weaken the integrity of the system
Related
Legal Profession Board wrongly dismisses Vass complaint against Wright
Sue Neill-Fraser – the crux of the appeal and best case scenario