Did Sue Neill-Fraser’s defence counsel contribute to her conviction?

Andrew L. Urban

Sue Neill-Fraser was convicted of murdering her partner Bob Chappell on Australia Day 2009, aboard their recently purchased yacht, Four Winds. His body was never found. It wasn’t enough that the police investigation was a miserable wreck, the prosecutor speculated impermissibly without evidence and the trial judge failed to intervene … oddly enough, her own counsel often seemed to be aiding the Crown’s case.

David Gunson SC died November 26, 2018 aged 72. (Then DPP Tim Ellis SC delivered the eulogy at his funeral.) He was admitted to practice in 1971, and held a range of positions during his legal career, including Law Society president and Legal Aid Commission chairman. He was an experienced (and expensive) defence barrister, who might have been expected to cast reasonable doubt on his client’s guilt in the minds of the jury, given the circumstantial nature of the case. He might have objected vigorously and frequently, in the absence of the judge’s own intervention to disallow it, to the prosecution’s repeated (and strictly forbidden) speculation without evidence. Inexplicably, he did the opposite: he adopted it. In this first example, he invited the witness to continue the speculation in great detail about wounds made by a murder weapon – which was not in evidence on a body that was not found – in his cross examination of Crown witness, Dr C.H. Laurence, State Pathologist for Tasmania:

CONTINUING – NOT CHALLENGING – THE PROSECUTOR’S SPECULATION

EXN – MR ELLIS SC (for the Crown): 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 40 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.

Yes. Could be killed by a single blow too, to several parts of the body, is that right?….That’s right.

Just finally, would age and frailty brought on by age, I suppose, have anything to do with a susceptibility to dying or being rendered unconscious?……We’re getting pretty – pretty into the hypotheticals here, you’d really have to – I’d really be more comfortable with what sort of frailty and what sort of injuries. Obviously natural disease can accelerate the rate at which you die but, you know, we’re getting very speculative here.

Yes, thank you. Thank you, Doctor.

XXN – MR GUNSON SC (for the defence): 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?……Yes, aspirin – aspirin inhibits the platelet action and will cause the person to bleed more.

So with a person who was using aspirin, was a long time user of aspirin, you would expect if he or she was bashed over the head in the way that the Director has suggested you’d expect a large amount of blood to normally flow?……Well it would depend on the nature – as I explained the nature of the wound. If there was a –

Assuming there was a wound – if there was a skin defect, yes, you would expect more blood.

Right. When you say a skin defect you mean an opening in the skin 20 to cause the flow?……Yeah, an open – yeah, that’s right.

So if we had two people, a person who was using aspirin as a blood thinner and one who wasn’t and both had exactly the same skin structure and both were struck with exactly the same instrument in exactly the same part of their heads, you would expect the person with the blood thinning agent to bleed more profusely than the other?……Yes.

Thank you. And the same with a knife wound dependent of course – 30 ……Yes, again dependent on the (indistinct words)

And the critical thing with a knife wound, is it not, is the severing of one of the veins or the arteries and if you do that you’re going to get more blood aren’t you?……Yes.

And if you get an artery you’re going to get the pumping affect aren’t you?……Yes.

Yes, thank you. I was worried which way’s coming in and which way’s going out but the artery is pumping it out isn’t it?……That’s right.

And that’s where you get the spray affects and things?……Yes.

Yes, thank you for that. When a person suffers a subdural haemorrhage it’s not generally the case that they die instantly the – it’s the affect of the blood welling up under the dural, isn’t it, that causes damage, placing the pressure on the brain?……Well unconsciousness can occur pretty quickly but death may take some time, yes. And death in fact with a subdural haemorrhage can take a long time can’t it?……Yes.

Yes, thank you. And during that period the person to all intents and purposes would appear to be alive but unconscious and probably strong snoring sort of sound type noises coming from the body?……Yeah, it can be – I think it can be difficult for people to tell sometimes whether they’re unconscious or dead.

Yes. Look, there’s – if I could – I’m not in any way seeking to denigrate your evidence but what you’re really telling us today is this, that really anybody can die as a result of a single blow to the head?……Yes.

In his closing address to the jury, Gunson SC again took up the Crown’s unsupported speculation and even contributed to it rather than dismissing it:

Page 1446
MR GUNSON SC: Well, let’s think about how you would go about killing somebody on a yacht in these circumstances and the problems you might face one person confronting one other. I suppose you could adopt Mr Ellis’s theory and use the ‘sneak up behind when they’re least expecting and bang them on the head’, but what would happen if the person fought back if your attempt was inadequate? You didn’t kill them or disable 10 them with the first blow and you’ve got a fight on your hands or you’ve got problems. The person screams out and yells out. You know, when you think about it, cold-blooded murder in those circumstances is almost impossible to contemplate because of the risks attached to it. You’ve got – if it happened during the day, we 15 know that it was a public holiday, we know from the evidence other yachts are going past. What would have happened if a blood-battered Mr Chappell crawled up onto the deck, surely somebody would seem him (And he went on with speculating “if it happened at night”.)

Pages 1452/3
MR GUNSON SC: Now, as I’ve said, there are some real issues about problems with the accused committing the crime of murder at least as it was first advanced by risk to be taking trying to kill somebody off Marieville Esplanade in Sandy Bay either in broad daylight or at night on a yacht reasonably close to shore, it’s only about five hundred metres out, amongst other yachts. You’ve got yachts and motorboats moored there, you’ve got the yachts at the marina, you’ve got houses, as I said, at Napoleon Street, houses in Marieville Esplanade, close by where people can see people’s comings and goings.

But let’s look at another issue; Mr Ellis has raised part of this issue, when he said, “Well obviously, she” – that’s his words – “must have winched the body out of the yacht.” Right. That’s a scenario that’s I suppose is reasonably open, given the marks, which the accused, of course, had pointed out. But what are you going to do though once you get your body out of the yacht? Out of the saloon, it comes up into the cockpit, you’ve got to move it from the cockpit onto the deck, you’ve then got to get it from the deck into a dinghy, you’ve got to then take it away somewhere, you’ve got to get it out of the dinghy – how are you going to do that without rolling the dinghy over – one person, all that weight on one side – what’s going to happen to the dinghy, it would probably flip.

CLEANING UP THE CRIME-SCENE?

The topic of the sensitivity of Luminol was the subject of the following exchange with forensic scientist D. McHoul which would not appear to have been advantageous to his client:

Page 667
MR GUNSON SC: Generally speaking, attempts to remove blood stains by ordinary domestic household cleaning methodology will not remove all blood residue for the purpose of a Luminol test. In other words, if a blood stain has been cleaned up, you can still, generally speaking, use Luminol to find it?

McHOUL: In many instances that’s true yes … it’s certainly possible for someone to attempt to clean blood up and for us to detect it with Luminol. Defence counsel: And depending on the quality of the cleaning, the chances of finding blood increase or decrease accordingly? Witness: Yes, the quality of the cleaning, the amount of cleaning product or the amount of water that’s gone over the item in question, there are a whole of variables, but yes, it’s certainly possible for someone to attempt to clean blood up and for us to detect it with Luminol.

MR GUNSON SC: It doesn’t necessarily follow just because someone cleans up what they believe is a blood stain that it will not be able to be detected using Luminol.

McHOUL: No that’s correct.

MR GUNSON SC: Thank you. And that’s one of the beauties of Luminol from the point of view of forensic scientists, they can come into a place that’s been ostensibly cleaned up after an offence where blood’s been spilt and still find the blood stains?

McHOUL: That’s certainly why we use it. Sometimes it’s successful and sometimes it isn’t but yes – that’s often why we use it.

• There is no indication in the evidence that any inquiries were made to ascertain whether the surfaces on the boat or the dinghy had ever been cleaned with cleaning agents based around bleach or any other ‘household cleaners’ referred to in the question, which could also have been part of the explanation for those results.

MEAGHAN VASS

Meaghan Vass, then a 16 year old homeless girl, was (or should have been) a key witness for the defence, her DNA found on the deck of Four Winds. From the following exchange in court, it seems unlikely (and Vass doesn’t remember) that the defence team spent any time preparing her for what was to be a crucial appearance for the frightened girl. The trial took place in September/October 2010, some 20 months after the event.

JURY ABSENT
XXN – MR GUNSON SC: Where were you living in January 2009, Ms Vass?…….I’m pretty sure I was living at Annie Kenney Women’s Shelter in Montrose

WITH JURY
[…] where were you living on the 26th January 2009?……Probably – I’m pretty sure it was Stainforth Court in Lenah Valley.

Gunson then challenged her with having changed her story:

You were asked a question a minute ago, “Where did you live on the 26th January 2009”, and you said, “The Annie Kenny Women’s Shelter at Montrose”………Yes. I’ve been homeless since I was thirteen.

Just listen to the question. In this court a matter of minutes ago were you not asked the question, “Where did you live on the 26th January 2009”?……..Yes.

And your answer was, “The Annie Kenny Shelter at Montrose”?……..Yes.

I asked you the same question a moment ago and you said you were then living at Stainforth Court. They’re not the two same places, are they?……No.

So I’ll ask you again, where did you live on the 26th January 2009?……Annie Kenny Women’s Shelter in Montrose.

So why did you tell us a minute ago you lived at Stainforth Court?……Because I’m getting very confused and I have been homeless since I was thirteen, so it’s very hard for me.

It’s not difficult, is it, you were asked the question in this court a few minutes ago?……Yes, I’m sorry.

• Gunson effectively undermined the credibility of his own witness through his sloppiness. It is arguable that the different addresses Vass gave was an opportunity to explore why, given that the specific day was so pertinent. Vass’s evidence was key to the case and he blew it.

BOB MARTYN

Sue Neill-Fraser had instructed Gunson to call long time family friend Bob Martyn as a witness (among others); Gunson refused to call any. Martyn’s testimony would have profoundly challenged the incriminating but false testimony of Phillip Triffett, who claimed that Neill-Fraser had asked him to murder Patrick, her brother, and Bob Chappell a decade earlier. There was no evidence or corroboration to support Triffett’s claim, but the prosecutor referred to it as the ‘sealer’ of the case. Martyn has provided an affidavit to the discredit the false testimony; more details  HERE

LEGAL PROPOSITIONS

There are two legal propositions that are relevant, as Flinders University legal academic Dr Bob Moles points out:

“1 – speculation by witnesses is not permissible – one is only allowed to draw inferences from ‘evidence’;

2 – expert witnesses can only express opinions where the facts on which they are based have been or will be proved by evidence.

When Gunson refers to speculation it should only have been to cry foul!

“The comments by the pathologist were inadmissible because there were no facts to show that a man aged 65 had been bashed in the head.

“All of what you have referred to (above) was not only inadmissible – it was also highly prejudicial; it may have encouraged the jury to engage in impermissible reasoning – ie there was some proper basis from which they could infer that these fanciful circumstances had actually occurred.”

On top of all the other slings and arrows of outrageous fortune, Sue Neill-Fraser had the misfortune to be defended by a barrister who sought to elaborate on the prosecution’s speculations. Sue Neill-Fraser didn’t stand a chance.