In the wake of public comments from senior police and the prosecutor, former DPP Tim Ellis SC, Lynn Giddings, an observer at the Sue Neill-Fraser trial, responds to the prosecutor’s published defence of the conviction.
Dear Editor,
While my daughter, Lara Giddings, was Attorney-General at the time of the trial and did not sit in the trial, I did, and therefore would like to respond to Mr Ellis’ opinion in The Mercury (Thursday 16 September, 2021).
My faith in the jury system was shaken to its core by this case – not because of the jury, but because of the evidence either put to the jury or not put that clouded the picture they were given by the prosecutor of the defendant. Let me give you three examples:
The prosecutor wanted to paint a picture of a couple fighting. He brought to the court Mrs Zochling who had seen Bob Chappell in heated discussion with a woman, she thought on Australia Day. This was the “fatal friction” the detectives needed in order to accuse Sue of a possible motive for murder and that is what the jury heard. While in the court, Mrs Zochling said, “the lady in the box”, looking at Sue, was not the same lady she saw on the beach arguing with Mr Chappell. There was plainly an identification problem. At the next adjournment, outside the court, Mrs Zochling identified Bob Chappell’s sister to family as being the woman she had seen. Mr Chappell had taken his sister out in the yacht the day before, on 25th January. Mrs Zochling (now sadly deceased) had the wrong woman on the wrong day, something police should have known well before the trial. Her evidence was irrelevant and should never have gone to court.
A jury is only as good as the evidence they hear or see. They also heard the prosecutor say, “Someone who sought with a pair of latex gloves which she had forgotten that she left on the stove top to clear up as best she could”, but it was not Neill-Fraser’s DNA in the latex gloves. The question for the then DPP is why wasn’t it known at the time of the trial that it was not Sue’s DNA, but in fact someone else’s? And yet, the jury were left with the idea that Sue had used the gloves to clean up after the murder.
I also sat through the Court of Criminal Appeal where this misconception was corrected: transcript of the Appeal, paragraph 151:
Counsel for the Crown now accepts that his mention of the gloves in those ways was inappropriate because there was evidence that a DNA profile found on the glove matched the profile of Timothy Chappell and not the appellant.
Too late for the jury to hear that correction.
Finally, this is what the jury heard from the prosecutor (in his closing address at pp.1392-1393) in a case where there was never a body:
She’s walking backwards and forwards and delivers .. a blow or blows, or maybe stabs him with a screwdriver, I don’t know, he doesn’t look round, and so the body doesn’t have any marks of what you’d expect if someone had come down there, a stranger, intent on doing him harm, the body I suggest would have marks consistent only with being delivered by someone who he knew to be there, who he know and expected to be behind him.
“Suggestions” to me are not evidence, but it makes for a powerful and vivid story to tell a jury where there is no body, no weapon and no witness.
Lynn Giddings
I congratulate Lynn Giddings on her article … posted on WCR, some three years ago.
You can’t put your points more clearly than Lynn Giddings has done [Wrongful Convictions Report: What the Sue Neill-Fraser jury heard – and not heard: Letter to Editor, 22Sept2021]. The Zochling trial evidence was a fiasco… Who is responsible for that? Was it the trial judge, Justice Blow, or DPP Tim Ellis, or Defence Counsel, David Gunson?
Barbara Zochling had seen Bob Chappell being berated by a woman, down there on the Australia Day weekend, 2009. She had told police about it. The inference drawn … was that it was Sue Neill-Fraser doing the berating.
Macabre?
But in one of those ‘simple twists of fate’ … it actually was Ann Sanchez (Bob’s sister) who Zochling had seen. Sanchez was down in Tassie on one of her periodic visits and Sue and Bob were preparing to take her for a day-trip on their new yacht, the Four Winds. It was Sunday, 25Jan2009.
There has been quite a deal of confusion as to what day of the week Australia Day fell on, that year. We speak of ‘The Australia Day Weekend’ and sort of think that Australia Day itself must have been on the Sunday, and that the Monday must have been the ‘tacked-on’ public holiday … to give us Aussies another of our famous ‘long-weekends’.
Not so: in 2009, Australia Day, the 26th of January, fell on the Monday. The Sunday of that long-weekend was the 25th. Barbara Zochling, on that Sunday of the Australia Day long-weekend, sitting there on that Short Beach middle bench, having got her ice-cream and bread from premises along the way, saw Bob and his sister Ann. They and Sue were about to take the Four Winds for a day cruise to Bruny Island. Zochling can be forgiven for thinking that that Sunday was the ‘Australia Day’ … but that Sunday was the day before Australia Day. Australia Day itself was on the Monday.
It seems that Zochling did not see Sue. Perhaps Sue was busy parking/getting stuff from the station wagon or doing something with the dinghy/trailer. As it turns out, Ann was telling Bob off because he was wanting to go back to the house to get something that he thought they should have with them. Ann just wanted to get going on the boat and apparently – according to Zochling – was giving him a piece of her mind, when she (Zochling) heard her.
Two days later (27Jan), the near-sinking of the Four Winds and the disappearance of Bob Chappell became news and Zochling recalled what she’d seen and heard. She knew Bob Chappell, as she’d met him more than once when receiving radiology treatment at a hospital clinic (I think it was). Zochling seems to have assumed that the woman (who she didn’t know) who had been berating Bob … must have been Bob’s partner (Sue Neill-Fraser). In the media she’d probably seen Neill-Fraser’s name mentioned and in talking to police the impression was made/gained that it was Neill-Fraser that was telling-off Bob.
Now this story does become more macabre…
So Zochling has made a statement and the police now had that “fatal friction” which the detectives needed in order to accuse Sue of a possible motive for murder. As we know, Sue was arrested on 20Aug2009. It was what Sue has referred to as “a grim day” Her trial did not take place until Tue21Sept of the following year: 2010.
Zochling was called as a witness to the trial, but on the weekend prior to the trial had seen a news report which had contained a picture of Neill-Fraser. Having now just for the first time seen Neill-Fraser’s image on the news, Zochling now realised that it was not Neill-Fraser whom she’d seen berating Bob. It was now the Sunday before the trial.
She wrote to Tim Ellis (then DPP), telling him that the woman she had seen on the news report [Sue Neill-Fraser] was definitely not the woman she had seen walking behind [and berating] Bob Chappell. It was the first time she’d actually seen Neill-Fraser’s image. So in her letter to Ellis, she concluded, “Therefore I wish to be excused from attending court.” She could not come and testify to having seen Sue telling off Bob. She now knew she hadn’t.
The next day … the Monday morning … she brought the letter in personally and delivered it. It seems [from what she said later at court], that she also spoke to Ellis at some stage, perhaps on that Monday or perhaps on the following Thursday, when she finally was called to give evidence.
But… having delivered her letter on the Monday, she did not go to the trial court on the Tuesday, in the belief that she would be excused. Not so! Justice Blow ordered her arrest. She was arrested on the Wednesday and locked up … and appeared in court on the Thursday [23Sept2009]. Mr Ellis then told Blow that he didn’t want Zochling … until the next week!
The following excerpt from the trial transcript makes for memorable reading:
Of course, they’ve harassed, locked up, arrested, charged a number of people who are connected to Sue Neill-Fraser’s case … one of them (Stephen Gleeson) ‘rolled over’ … on the understanding that his doing so would help in his upcoming parole application (on an unrelated matter – a very violent assault – for which he was at the time, in prison).
[It should be noted that on the first day of Susan Neill-Fraser’s 2nd Appeal – still at the time of writing undecided after more than 6 months – Meaghan Vass named two people as being on the Four Winds with her: Samuel Devine and Stephen Gleeson]
Macabre.2
Thur 23Sept2010
So Barbara Zochling finally gives evidence. She’s trying to say that the woman she saw berating Bob was not Sue Neill-Fraser.
On re-examination by Mr Ellis, as Zochling was being shown photos in order to identify the woman that she saw that morning berating Bob Chappell, she said,
“No, the woman that – the woman – it…”
and shown a photo [P50/#1] said [Trial Transcript p399 16-36]
“the woman … that I saw … had blond hair … blond ashen hair”
[Zochling had referred to the lady there in the courtroom dock (“the lady … in the box there”) (Sue Neill-Fraser) as having]) black hair.
“the one in the front here”…?
[A reference to someone in the court or to someone in the photo shown to Zochling?]
I believe that both Zochling and Sanchez have/had since giving evidence, confirmed the elements of this account that I have presented and that Lynn Giddings can confirm it. How critical was defence lawyer Gunson in killing Zochling’s evidence? (‘Can I tell you what I saw?’
and his
‘No, you’ll answer the questions.’
…and Justice Blow shutting her down, as she tried to say
‘…the woman I saw was a…’:
…Justice Blow shot that one down, personally, telling her
“No, no, wait for the next question please.”
He’d already had her locked up … Gunson resumed his cross-examination – I find his tone sickening:
“I want you to look at this document, I want you to read it to yourself, I do not want you to say anything about it whatsoever. When you have read the first page please tell me. Now be careful about this, I don’t want you to say a single word about it, do you understand that?……Yes.”
A lot of Gunson’s treatment of witnesses was like that … i.e. like ‘just answer the question … yes or no’ and so on. The truth was not allowed out, and Gunson was the defence lawyer!
So, Lynn Giddings’ point about Barbara Zochling’s evidence is ‘on the money’. There are a number of horses in this race … Neill-Fraser being handicapped unduly, while there are plenty of others out there on the grass, anxious for a win. The bookies have her at 10 to one against, while the Crown nag, DPP’s Delightis quietly tipped to carry off the money. Lady Justice is having her last run and going by the form guide, punters would be well advised to off-set any money thrown down in her direction … by covering with an investment on that proven gelding, Appeal Dismissed. After all, we have to be careful with our money, don’t we!
Later, Barbara Zochling – out of the witness box and beyond Gunson’s repressive questioning, gave a clearer account…
[Written c. 2021 (prior to or close to SNF’s 2n Appeal) and now added to in the following, 2024…]
On the matter of Barbara Zochling’s evidence given in court, can I note that later, Barbara Zochling – out of the witness box and beyond Gunson’s repressive questioning, gave a clearer account…
Here are some of my further notes on this matter:
[During SNF’s trial, Barbara Zochling (now dec.) gave evidence on Mon27Sept2010. After Zochling gave her evidence, she remained in the court precincts. She identified Ann Sanchez as the woman she had seen ‘arguing’ with Bob.
Ann Sanchez, on reflection, later recalled that she had been at the beach with Bob the day before.
Mrs Zochling, at Short Beach in Jan 2009, had first assumed that the woman she had seen with Bob was his wife/partner, not knowing that the woman was actually his sister Ann, and Zochling had only realised that there was something wrong with her identification of the woman as Sue, once she’d seen Sue’s picture on television.
It was for this reason that she then attempted to contact DPP Ellis, because she felt that she, contrary to previous expectations, could no longer identify Sue Neill-Fraser as the woman who had been arguing with Bob Chappell on the beach that Australia Day morning.
In my view, it is clear that Barbara Zochling (now deceased) had actually seen Bob and the blondie-ash woman on the day before Australia Day (i.e. on the morning of the 25Jan2009. This day was a Sunday, the Sunday of the Australia Day long-weekend. Australia Day itself was on the Monday. Bob, Sue and Ann Sanchez did go to the FW at 7:30 on the 25Jan2009 (at the time of day fitting with the evidence given by Zochling). Clearly, Zochling had the ‘wrong day’.
After giving her evidence, Barbara Zochling waited outside the court. At the next adjournment, while standing outside the Court, she spoke to a member of the family and pointed to Ann Sanchez as the woman she saw arguing with Bob. Much later, Sanchez in a conversation with a family friend, said that she had been arguing with Bob on the beach the day before (i.e. the Sunday the 25th), because Bob had wanted to return home for something and she had wanted to get going for Bruny Island.
Tony Jacobs, ex Prosecutor, has written that Gunson was guilty of ‘flagrant incompetence’. Perhaps he was, yet I’d suggest that if anything, it was something more complicated than ‘incompetence’.
Excellent comment, Garry, and I agree: it seems more than incompetence. Tony Jacobs set out his critique of the case in great detail; see the report at https://wrongfulconvictionsreport.org/2022/11/15/sue-neill-fraser-injustice-product-of-our-tasmanian-legal-fraternity/
Ability, Robin, I would think. Because he is unable, literally, to rebut what you say. Neither the Police Commissioner nor Riley have had anything substantive to say: it’s all about abusing those who criticize the police procedures, name calling, a minority fringe, all that sort of insulting stuff doesn’t carry weight with people who use their brains. If that is the only way they can deal with matters of evidence and logic then (a) it only shows how wrong they were and are; and (b) what a sorry state the justice system is in Tasmania. And not only the justice system. I was gobsmacked when in today’s Talking Point Minister Guy Barnett spouted lie after lie along the lines of the salmon industry being “world’s best practice” when Flanagan has conclusively demonstrated how utterly bad it is. Not relevant to SNF Case, you ask? But it is. These two events just show how flawed the Governing system is in Tasmania. Mate’s deals all round. That’s been the way since Governor Arthur handed out huge parcels of land.
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Can’t find Mr. Ellis’ opinion in The Mercury (Thursday 16 September 2021). I’m from Belgium (Europe), so not all websites and/or newsarticles about the case are available here. Any links ?
Here is the link –
https://www.themercury.com.au/truecrimeaustralia/police-courts-tasmania/supporter-on-why-sue-neillfrasers-murder-case-demands-more-scrutiny/news-story/bccb30c407041ab24ecf8f56aec9868c
but you may not be able to access it, so below is the text of the article:
THE latest contribution by Lara Giddings (Talking Point, September 15) compels me, reluctantly, to respond.
I conducted the trial of Susan Neill-Fraser, I responded to the first appeal to the Court of Criminal Appeal and to the application for Special Leave to Appeal to the High Court. I did not see Ms Giddings at any of those events, and what she claims to be the “material before me” which makes her “believe” Sue Neill-Fraser to be innocent has not been stated.
It is presumably the same misinformation that the convicted murderer’s supporters have peddled relentlessly, complete with regular personal attacks on anyone or any institution involved in the investigation or litigation who doesn’t share or suit their view.
Her “belief” is of far less consequence than that of all 12 members of the trial jury, a belief in guilt beyond reasonable doubt after a trial that has not been shown in any proper forum to have been legally flawed.
In her article, Ms Giddings gives only one example, that of the evidence of Peter Lorraine.
She suggests that Mr Lorraine gave different versions of the description of the dinghy he sighted to police and that the defence were only given his description of a small tender dinghy of inflatable or solid construction.
She says the defence were not told he once gave a version of a small yellow dinghy and she says “prosecution argued it was the Four Winds dinghy, that is, a blue and white trimmed inflatable Zodiac with a motor”, and “ defence accepted Lorraine’s written statement of fact”. This is untrue. If Ms Giddings wishes to dispute that, she should give the exact passages from the transcript.
The transcript is easily available.
Further, far from Ms Giddings’ claim that the description given by Mr Lorraine of a yellow un-motored dinghy was hidden from defence, it was in fact given in evidence at the trial and therefore made known not only to defence but also to the jury.
I quote from the trial judge’s summing up to the jury (at page 1525, numbers in the extract are his references to transcript pages),
“ (Mr Lorraine) said at 503 that he saw a very small dinghy, at 510 that it was somewhat dark and very small, at 511 he said he couldn’t see an outboard. Sergeant Conroy gave evidence at page 914 that he’d spoken to Mr Lorraine at the time of the initial investigation and that Mr Lorraine had said things to him when he happened to run into him that didn’t find their way into Mr Lorraine’s statement and that he said to him that the dinghy he saw was whitish cream to yellow.”
Ms Giddings’ sole “example” is thus untrue and misleading.
Refuting every Neill-Fraser’s supporters’ claim is like playing whack-a-mole.
Just last week one wrote in another newspaper that Neill-Fraser’s DNA was “not found on the yacht” – a complete untruth.
This is a new addition to the hardy series of untruths and half-truths which are constantly repeated in order to gain credence by their very repetition.
To give but one example, in the so called “Etter /Selby papers” much time and space is devoted to seeking to prove that the prosecution’s case that there was blood in the dinghy was wrong and that matters contrary to that proposition were hidden.
It was never the prosecution case that there was blood in the dinghy. I never said the jury could so find at any stage of the trial, and no submission invited them to so find.
Ms Etter knows this well. Ms Etter had complained to the Legal Profession Board (LPB) that I falsely denied after the trial that I had told the jury that there had been found to be blood in the dinghy.
That complaint was examined by the LPB who concluded that there had been no presentation of a blood in the dinghy case and no assertion of it by me and Ms Etter’s complaint was summarily dismissed.
I wonder if Michael Gaffney MLC was apprised of this before he used parliamentary privilege to push the same barrow?
I wonder if he, or Ms Giddings or indeed anyone who, like them, was not at the trial and did not hear all the evidence, have actually read the Court of Criminal Appeal decision which sets out clearly and very readably the case which had been presented at trial?
It is at http://classic.austlii.edu.au/au/cases/tas/TASCCA/2012/2.html, and is far more authoritative reading than the so-called Etter/Selby papers, and should be considered to be essential reading for anyone wishing to be properly informed.
Ms Giddings concludes with the Neill-Fraser supporters’ catechism, “it was a circumstantial case, there was no body, no weapon and no witness to the crime”.
She knows that none of these things, together or alone, mean the conviction is unsafe at law.
None of them, together or alone, even diminishes the safety of the conviction. So why say it?
Andrew – Mr Ellis’s own court trial needs reviewing as well. I believe him when he said he fell asleep at the wheel of the car he was driving at 110 kph on an open road with a medical condition which put him at a very high risk of being a hazard for road users.
His doctor was just covering his medical professional back by contradicting his testimony because he had failed in his duty of care to his patient by not contacting the road transport department and arranging for him to be placed on a restricted drivers licence.
And by not advising him it was imperative he complied with his treatment plan and especially if he was staying elsewhere he took his breathing apparatus with him. I can understand a little his reluctance to apologise to his victim’s family. Unless it’s part of his character not to apologise in principle for any of his mistakes, another major one of course being the construct he put around an innocent woman for allegedly causing fatal harm to her partner.
NP’s coroner’s report deliberately omits the contradictory view of the causative factor in her fatal injuries. Very odd!!
Lynn, Your eloquent reply to set the record straight unravels facts of injustice…Misdemeanours and misconception twist the law it in dishonesty! The corrupt pursuing of Susan Neil Frasers of a blatant miscarriage of justice is opened up to us.. That the law breakers are meant to pursue the rule of law; yet it is shocking in its contempt of it…Some crooked police and DPP(S) hiding evidence and misrepresenting it is shocking!. Obviously the rule of law has no meaning to any one of them..Not that this surprises me as I know their form from the late 80’s.. Snide bullies and thugs! They dig their hole deeper as there response writ large covers nothing except to mount up a further show of dishonesty!
No body, no murder weapon, so no ability to forensically determine cause of death; no witnesses, no confession, no motive. A few silly untruths told while Sue was trying to ‘Help police with their inquiries’. NO EVIDENCE WHATSOEVER! 26-year sentence. (Reduced to 23 years).
My guess is that the three Appeal judges have a dissenter so they are waiting to hand down their finding as close to Sue’s parole date as possible, so she’ll get out anyway. They can’t have missed the flurry of stuff published in the Mercury. Never mind the Etter/Selby papers, tabled in Parliament!
Moral of Sue’s and many other stories I’ve encountered: NEVER help the police with their inquiries! Put ‘No comment’ on repeat from your mouth. Make the police do their job, all you are required to do is give them your name and address and then DON’T ANSWER ANY OTHER QUESTIONS, no matter how innocent you are! It happened to Sue, it could happen to YOU!
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If the Appeal judges are delaying their decision until the eve of Sue’s parole then they are making themselves complicit in this wrongful conviction. Has someone asked them to stretch it out?
Oh dear oh dear. Bob allegedly arguing / having a heated discussion with his sister (Ann Sanchez) not Sue, as claimed, then Sue allegedly “maybe stabs him with a screwdriver”, but there is no body ! so how could this folly even be entertained? Plus her DNA not in those latex gloves as alleged, this sounds more like Keystone Cops than a comprehensive and professional investigation ! If it was not so serious it would be laughable. Every person involved in keeping Sue in prison (including past and present) Tasmanian Premiers, Officers of the DPP, Attorney Generals, Police) must have very little conscience? I feel very sorry for Tasmanians who have no knowledge of this case and even sorrier for those who don’t care enough to have this dirty linen aired. A society is judged by how it cares for its vulnerable and mistreated. In my view, right now, Tasmania fails to meet the lowest of standards.
Prosecutor allegedly says; “so the body doesn’t have any marks of what you’d expect if someone had come down there, a stranger, intent on doing him harm, the body I suggest would have marks consistent only with being delivered by someone who he knew to be there, who he know and expected to be behind him.”
Referring to the body that is not available for inspection. Does the comment make any sense? Is it allowed in a murder trial in Australia?
A lot of speculation?
Very weak “evidence”?
Why was this allowed?
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The Prosecutor is meant to provide the facts of the case.
Why then, unlike witnesses and interpreters, are prosecutors not asked by the Judge to swear an oath about telling the truth? Could someone with legal experience please let me know?
And are there any jurisdictions in the world where the prosecutor does have to swear an oath at the start of a trial?
is nez t Tim
Contesting truth in court based upon hard evidence, is NOT part of the fabric of Sue’s trial. The transcript reads like a comedy of errors, and lots and lots and lots of supposition and how Colin Riley, Darren Hine and Tim Ellis have the temerity to defend the police investigators, and the work they presented to the court, beggars belief. (100 years of (mal) practice between the four on them!!) As for their litany of OMISSIONS!!
It’s an IDENTICAL case to New Zealand’s worst miscarriage of justice case, where the police FRAME an innocent suspect, into the scene of the crime with fallacious testimony.
In a SPIRIT of humility, as Sue has demonstrated when she erred, ALL three men would be enabled to salvage their careers, if they were to unite and call in one voice, for a Criminal Convictions Review Commission to be established. As this point in the comedy to respond with Colin Riley’s word reprisal or be punitive will create fatal friction in progressing improvements to the criminal justice system in Tasmania, which has taken a really big hit to their reputation and good name after an innocent citizen has been living in Hobart under lock and key for 12 years.
Yes,Pauline, I have been wondering what sort of ‘reprisals’ the police have in mind, after reading Colin Riley’s article. Do we understand from what he sent for wide publication ( the Examiner ran a slightly stronger version) that people speaking out about the lousy investigation will invite ‘reprisals’? Does TasPol have a secret word-police division, trained in China? Will they build a new block onto Risdon prison to accommodate dissenters in solitary confinement( which, BTW, the prison doesn’t have! ) It’s all very 1984! Will agitators from outside Tasmania be refused entry permits in future? I have written to the Police Commissioner, asking him these and other questions. I wrote about three weeks ago. Still no reply.No wonder the investigation of Bob’s death was so sloppy, if the Commissioner doesn’t even have the ability ( courtesy?) to answer a letter.
Robin – I am a member of New Zealand’s most investigated family and I don’t believe a drop scandal is left to disclose. This has lead me into other bloodlines, and it has taken me into the Norfolk Plains, Forth and Hobart and seriously and respectfully many Tasmanian’s have a very big issue with DENIAL. It’s part of the fabric within their society which we don’t see as much of in New Zealand.
Premier Peter Gutwein is trying to break this barrier down and I admire him for his efforts. He has allocated funds in his recent budget to appoint Professor’s Kate Warner and Tim McCormack to investigate truth-telling, Treaty and Reparative Justice for the aboriginal community.
He needs to have us remind him, two dates exist in Tasmania’s social history where the need for truth-telling exists, the 12th of September 1803, and Australia Day February 2009.
If he is a true believer in Sue Neill- Fraser’s Innocence or he thinks of her as a perpetrator getting her just desserts, he is obliged to consider his OWN reputation in Tasmanian history, whereby a very REAL possibility exists, according to 25000 plus, that an innocent citizen is living under lock and key in Risdon Prison, which he has overall responsible for during his term in office, and if he does nothing to properly investigate these unfortunate possibilities, by funding a Commission of Enquiry, it’s going to be a very sorry tale to narrate about HIS reputation and good name. Everything he says and does OR omits to do is history in the making, which I know a lot about coming from a family that has so much written about us.
Robyn – as for Colin Riley – he is an expensive burden on the Tasmanian taxpayer if he doesn’t open HIS mind to the TRUTH four of Tasmania’s police’s top investigator’s allowed their testosterone to reduce their intelligence, and get in the way of a properly conducted investigation – their need for power and conquest is exposed in Colin Riley’s wrath – he would show true leadership if he began to advocate for a Criminal Convictions Review Commission which I keep repeating, as a family member assisted in getting one established in New Zealand.
Robyn, part of the problem is low information over how to actually deal with contested TRUTH, but the Premier has to be given credit for trying, in my humble opinion.