Andrew L. Urban.
Garbled English aside, Tasmania’s DPP misled the appeal court – perhaps unwittingly, but significantly – as the latest Etter/Selby submission to the Attorney-General reveals, with an extract from the transcript of Sue Neill-Fraser’s appeal before Tasmania’s Court of Criminal Appeal in March 2021.
Let’s put it in plain English: the police and the prosecution in the controversial Sue Neill-Fraser case wanted desperately the evidence to show that the dinghy seen beside the Four Winds – the crime scene – on the afternoon of Australia Day, 2009, was NOT some strange dark grey, well worn working dinghy but the smaller, white/blue trim leisure class dinghy of the Four Winds herself. That’s because a different dinghy would sink the prosecution’s narrative. It would mean that it wasn’t Sue Neill-Fraser at the crime scene that afternoon. Someone else was. Case closed.
The significance of the grey dinghy cannot be overstated: it was seen by at least four witnesses between 3.55 pm and 5.30 pm on Australia Day. From an earlier Etter/Selby submission, we know that Bob Chappell was not seen alive at 5 pm. If relevant material had been disclosed to the defence before (or even during the trial, given the 5 October 2010 email), the defence could have presented a much stronger alternative hypothesis to the jury.
The Crown doesn’t have to prove the method of murder or a motive: but the Crown does have to prove that the accused was at the crime scene at the relevant time. For a start.
The Four Winds dinghy (police photo): a Zodiac – note the shape, the clear colour definition/contrast, the stripes, the lack of any lee cloth to cover the front, the readily visible outboard motor and the QUICKSILVER branding. The grey dinghy has never been found and no-one has come forward claiming it was them at the Four Winds.
The Etter/Selby submission refers the Attorney-General to the appeal transcript:
- On 3 March 2021 the following transpired during the closing comments of the DPP (T 137-138):
ESTCOURT, J: What do you say about Mr Conde’s evidence?
MR COATES SC: Mr Conde’s evidence was that the – the yacht was grey–
…
MR COATES SC: -the dinghy, sorry was grey. Well, the answer to that your Honour, is that – which was what was put at trial, was that the dinghy was white and from a distance over the – over the water it looks grey. And, that’s the answer to that. But, it would be pretty unlikely that a dinghy similar to the Four Winds was – but, a different dinghy was there at I think this time’s around between around about 4 o’clock, and that’s the timeframe that Ms Sue Neill-Fraser said she was there.
…
MR COATES SC: She went there at 2 and she would have got there at – got back about 3. And, when the police put to her Mr Conde’s evidence, she said well it must have been – I must have left late. So, it’s true Mr Gun son (sic) was saying that the sightings of the dinghy was a different dinghy but, the jury can readily accepted (sic) that the same description, the only difference is one is saying white and one is grey and it’s on a – on the water. (emphasis added)
But the document proves that “The DPP’s response to His Honour’s question is incorrect,” as the authors point out.
The Etter/Selby submission states:
“The grey dinghy was seen on the afternoon of Australia Day by: Paul Conde, Thomas Clarke, P36 and Jill Ikin. A grey dinghy was also seen on other occasions by Gary Smith, near the rocks where the Four Winds’ Zodiac was found on the morning of 27 January. Only one of those witnesses, Paul Conde, gave evidence at trial. The statutory declarations of both Thomas Clarke and P36 were read to the court (T 2010 p.223 and p.225).
“Mr Conde in his initial statement described himself as ‘an experienced and competent yachtsman’. His initial description was simply that of ‘a grey inflatable dinghy’. At trial, he went further and described it as a large dark grey rubber dinghy (T 2010 p.426). In cross-examination (T 2010 p.428) he said it was ‘battleship grey’.
“In re-examination Mr Conde said that the Four Winds dinghy was smaller than the one he saw (T 2010 p.431). He also said that the dinghy that he saw had a lee cloth across its bow (raised spray guards which stop water coming into the boat in bad weather) and the Four Winds dinghy’s bow was blunter than the pointed bow of the dinghy he saw. He added (T 2010 p.431):
… the dinghy – the Quicksilver dinghy in the photographs is not the dinghy I saw at five to four on Australia Day last year.”
Case closed.
The incorrect statement must be rectified by the DPP pursuant to his professional obligations; and the growing body of evidence means the appeal must be reopened so that Sue Neill-Fraser can, at last, be exonerated.
* UNDERCURRENT – the 6-part documentary about the Sue Neill-Fraser case is available online
Posted this day on
https://wrongfulconvictionsreport.org/2021/08/23/tasmania-weve-got-you-cowered/
Reposting here for relevance.
Andrew, referring to your August 13, 2021 article,
https://wrongfulconvictionsreport.org/2021/08/13/grey-dinghy-case-closed/
in part you wrote, “…The Etter/Selby submission refers the Attorney-General to the appeal transcript:
1. On 3 March 2021 the following transpired during the closing comments of the DPP (T 137-138):
ESTCOURT, J: What do you say about Mr Conde’s evidence?
MR COATES SC: Mr Conde’s evidence was that the – the yacht was grey–
…
MR COATES SC: -the dinghy, sorry was grey. Well, the answer to that your Honour, is that – which was what was put at trial, was that the dinghy was white and from a distance over the – over the water it looks grey. And, that’s the answer to that. But, it would be pretty unlikely that a dinghy similar to the Four Winds was – but, a different dinghy was there at I think this time’s around between around about 4 o’clock, and that’s the timeframe that Ms Sue Neill-Fraser said she was there.
…
MR COATES SC: She went there at 2 and she would have got there at – got back about 3. And, when the police put to her Mr Conde’s evidence, she said well it must have been – I must have left late. So, it’s true Mr Gun son (sic) was saying that the sightings of the dinghy was a different dinghy but, the jury can readily accepted (sic) that the same description, the only difference is one is saying white and one is grey and it’s on a – on the water. (emphasis added)
But the document proves that “The DPP’s response to His Honour’s question is incorrect,” as the authors point out.
…
Andrew you added, “….Case closed.”
I understand you were not speaking literally. For me and numerous others, it is not “case closed” insofar as I call on DPP Coates to comply with his professional obligation to the court, to correct his misleading of the Appeal Court, in particular Estcourt J.
Surely there’s no argument that the DPP is professionally obliged to correct his misleading statement to the CCA. If that means the appeal hearings must be reopened so be it. The now known misinformation, or was it disinformation i.e. false and/or inaccurate information, especially that which was deliberately intended to deceive requires corrective action, and fast.
This unnerving state of public affairs cannot be left ignored and/or passed over.
And still the media and Attorney-General are silent? Consistently ignoring the Rule of Law breaches over a number of years, the Tasmanian ‘establishment’ is now confirming to me what I’ve known for decades — there is much to hide.
This is not an ok state of affairs; far from it.
When a governance system responsible for law and order closes in on itself, the ‘voices of the people’ are justifiably agitated, and we feel nervous, very, very nervous.
An appropriate inquiry is now overdue. I hear the drums beating louder … legal abuse is wrong, very, very wrong
My remark ‘Case closed’ refers to the case for the defence being triumphant.
Credit to Elise Archer for the below response to my recent Messenger correspondence. I’ll leave it to others with legal expertise to dissect her reply however if valid, it seems these latest submissions may fall on fallow ground.
“As advised, neither the Attorney-General or the Government has the power to intervene as you suggest due to the separation of powers. It is an important function of our Justice system that the courts/judiciary retain their independence from political interference. Our Government did reform the law to allow a fresh trial with new evidence which has occurred this instance.”
Regards
Elise
Keith – I sought legal advice from Hugh Selby to confirm what I understood to be the situation. Here it is:
The AG and her advisers know that reply to Mr Kroger to be nonsense. They could not possibly believe that statement.
Until Australian Governments set up DPP offices by Acts of Parliament the prosecutions in the higher courts were initiated by the Attorney General using the vehicle of Crown Law offices.
When the DPP Acts were passed the State and Commonwealth AG’s retained their common law powers, as first law officers, to initiate or otherwise take action with respect to Criminal proceedings, such as ‘taking over the conduct of an action’.
A good example of this power is the Queensland case involving the death of a First Australian on Palm Island. The Queensland DPP refused to present an indictment ( ie go to trial) against the police officer. The Queensland AG went ahead, presented the indictment, and the police officer was acquitted (as I recall).
In the Sue Neill-Fraser case the Tasmanian DPP office is ‘conflicted’ as a result of its conduct – as covered in the papers – by its failure to disclose to the Defence before and during the 2010 trial, its conduct at the leave to appeal, and its misleading in March of the Appeal Court.
It is therefore appropriate that the AG step in to SEEK LEAVE to re-open the appeal. She does this by either asking the Solicitor General to file the necessary papers or retaining a private firm of solicitors to do so. She then appoints a competent and independent barrister to run the application. That will have to be someone from interstate.
This has NOTHING TO DO WITH SEPARATION OF POWERS. That concept does not even arise in this case.
It is truly embarrassing that an Australian AG, with the resources of her office advisers and a competent Solicitor General could peddle the rubbish sent to Mr Kroger.
It is made even worse because she and her office have not dared to try that response to Ms Etter and me, or any response at all, since we began sending her the materials.
Keith – you are free to send this as a reply to Elise Archer.
Thank you Andrew for calling out the response from Ms Archer. How many times will the AG continue to try to cover up with more untruths??? She has always had the power to intervene and ensure that the procedures are just and fair and follow the letter of the law ( that is her job) however she has continued to enable bending of the lack of evidence. Accountability time is approaching.
Some Prosecutors in the UK I believe, have actually been honourable enough to admit when they got it wrong. But of course, I understand those prosecutors are not “professional Prosecutors” but barristers who might prosecute today and defend next week. Perhaps that might be a better system.
Thank you Andrew for your excellent reports on this disturbing case.
I would like to draw to your attention your Wrongful Convictions article of 1/7/21 in which you comment on the statement put to the jury by the prosecution. I am very concerned about all the assumptions made by the prosecutor such as that Bob Chappell must have been stabbed by someone he knew, that he was attacked with a wrench ( said to have been a big one as it was a big boat!) or a screwdriver. How did he know that the body had no marks? There was no body to observe! Surely these assumptions which can not possibly be substantiated should not have been conveyed to the jury. Surely the jury must have been influenced by these statements albeit they were based on speculation. I wonder if these assumptions could be put forward to add weight to arguments supporting the lack of safety of Sue’s conviction?
Indeed…the prosecution’s impermissible speculation (supported in part by the trial judge’s summation) propelled the wrongful conviction. Our report tomorrow will highlight that wrongdoing.
Sue’s dinghy was described by the rowing coach as “grey” in an email he sent out to the members of the rowing club.
So fortunately Tony we have more detailed description of the scruffy looking , more pointed shaped, longer dinghy, with a lee cloth, and commercial dark grey, army type colour that everyone would recognize. Pictures were provided in court as well. ‘Grey’ says the rowing coach, meaning light grey. The scruffy dark grey dinghy was very, very different to the pretty much brand new Quicksilver with distinctive blue stripes. Its a pity more people aren’t able to actually be in the location at different times of day to observe colours of dinghies in various lighting. It would be so much easier to discern in reality than nitpicking words. We know that the coach acually saw the Quicksilver and you can easily tell from the description given by all those other witnesses that it was not the Quicksilver at the Four Winds at 3.55pm
“The Crown doesn’t have to prove the method of murder or a motive: but the Crown does have to prove that the accused was at the crime scene at the relevant time. “
There we have it in a nutshell. Release Sue now and take the whole trial back to Court. Any court. Re open the appeal would be a start.