Tasmania’s justice system will be “a laughing stock”, if calls for an independent review of the Sue Neill-Fraser murder conviction are refused, Chester Porter QC told a public forum in Sydney last week, while Lindy Chamberlain’s lawyer Stuart Tipple drew troubling parallels between the two cases, suggesting a high likelihood of a similar gross miscarriage of justice.
Speaking at Sydney’s Chauvel Cinema screening of Shadow of Doubt, the documentary about the case by filmmaker Eve Ash, Porter said the NT Government had also tried to avoid a review of the Lindy Chamberlain conviction “but that just made things worse for them when it blew up”.
Neill-Fraser was convicted and jailed for 23 years for the 2009 murder of her partner of 18 years, Bob Chappell, on board their yacht. However, since Chappell’s disappearance, no body has been found, no murder weapon produced in evidence and there were no witnesses; Neill-Fraser has strenuously denied her guilt.
“And as far as I’m concerned, and I do claim to be somewhat of an expert on miscarriages of justice in the criminal area, there is no doubt in my mind that this case calls for an Inquiry. There are very substantial doubts about this case. I can put it this way: it would not have been at all surprising if the jury had acquitted this lady because the evidence was so weak against her.
“But with the additional evidence that is now available, it is hard to see how any conviction could stand.”
Porter, who was Counsel Assisting the Morling Royal Commission into the Chamberlain conviction, said at the forum he had studied the case and what he had learnt was that the investigation and trial process was “even worse” than was depicted in Shadow of Doubt. He said it was “essential” that an independent review be conducted.
“I see many parallels with this case to the Chamberlain case,” said Tipple. “I also had the problem of asking the Attorney General in the NT to review the case. I was able to show him that the foetal blood spray was sound deadener, amongst a number of other things, and all I got was a letter saying that he had reviewed it after 6 months of sitting on it and there was nothing cogent that required any review. So I see many parallels. It deeply disturbs me.”
Unlike other jurisdictions, such as the US and UK, Australia does not have a Criminal Cases Review Commission. “It does concern me that that there isn’t a Criminal Case Review Commission or anywhere else that you can go and the Appellate process that Tasmania is left with is totally unsatisfactory,” Tipple added.
• Chester Porter QC speech before the screening of the Sue Neill-Fraser documentary Shadow of Doubt last Tuesday night at the Palace Chauvel in Paddington
Why are we here tonight? In the words of Martin Luther King: Injustice anywhere is a danger to justice everywhere.
And so we in NSW are concerned with the possibility that there is a woman in Tasmania wrongly convicted.
For over 60 years my main interest in law has been miscarriage of justice and I’d like to think my last book may have done some good in reducing the chance of injustice in Australia.
When you see the film tonight let me tell you this, that it doesn’t tell the full story by a long shot. It is much worse.
To understand what this is all about you have to appreciate one of the defects in Tasmanian law and to a large extent the law throughout Australia. If someone is convicted by a jury and the jury simply makes a mistake of fact, and no errors of law, the only possible appeal is to the judges on the basis that no reasonable jury could have reached that verdict ... which means in effect that if a jury makes a mistake it’s very difficult to correct it. Now let me go a little further.
If a person convicted wants to appeal they have a limited period in which they can appeal. Once they have appealed, that’s it! In Tasmania at least.
Now say for the sake of argument, new evidence occurs. Say all sorts of things are revealed that were not revealed at the trial. Say all sorts of evidence comes forward that the jury never heard. Too late! According to the law of Tasmania, unless the Attorney General in his own discretion decides to intervene. It’s a little different in NSW where we can appeal to a Supreme Court judge as was done in the McLeod-Lindsay case.
It’s different now in South Australia, thanks to Dr Moles.
But in Tasmania if the alleged victim of this murder walked in to Hobart town tomorrow, no one could do anything about it legally unless the Attorney General acted. That is why there is all this effort to get the A-G to act.
Now in England the position is quite different. They have a Criminal Cases Review Commission, and that not only has the power to investigate, but can refer cases onto the Court of Criminal Appeal, and wrong cases are quashed. And quite literally some hundreds of cases have been set aside by the English Court of Criminal Appeal particularly those women who were wrongly accused of murdering their babies who died of cot death. Sally Clarke and the others accused with her.
So the importance of this gathering tonight is that if you are in fact convinced that there’s something wrong with this conviction, only public opinion will ultimately force the Attorney General of Tasmania to do something about it and hold an Inquiry. All the legal remedies have now run out.
I was a little worried about this case when I first saw the film, because cases where the body has not been found are always a little suspect. My first murder case was when I was a lad of 25. I was called upon to deal with the case of Frederick McDermott, which had occurred in 1936 when I was only 10 years old. There was a Royal Commission in 1952, and McDermott was ultimately freed rather reluctantly by Royal Commission and Mr Justice Kinsella. A few years ago, I think in 2004 - the body of the alleged victim, Harry Lavers, turned up. And the situation of the body, and the state of the body, were such as to show that the entire police case from go to whoa, from beginning to end, was a bunch of rubbish. The whole case was misconceived. The Court of Appeal exonerated McDermott long after he was dead, this year.
Now let’s come to this case. The main evidence against Sue is twofold. One of an informer who claims that she talked about murdering her partner 10 years before. The second is that she was alleged to have lied to police about where she was at the relevant times. And if you look at all the other evidence, alleged evidence against her, it’s really just guesswork.
Now as far as lying is concerned, anyone who has any experience of the criminal law knows that persons accused of criminal offences very frequently say silly things. And if you go to the most famous cases, of persons who are undoubtedly wrongly convicted, they all confess to their guilt. Timothy Evans - he was hanged. He confessed to his guilt, he was lying apparently. Darryl Beamish of WA confessed to his guilt. Mallard confessed to his guilt. Jaqueline Fletcher in England confessed to her guilt. John Button confessed to his guilt. They were all proved to be innocent. So you don’t want to take too much notice of the fact that someone under police investigation, does not tell the truth. They’re silly. But I’ve had the experience of dealing with people who couldn’t even describe going to the post box and back without lying. Some people have verbal diarrhoea. Some people just have difficulty telling the truth.
In the case of this lady. Realise this. On the day after her partner disappeared, Triffett, an old time enemy of 10 years back, of whom she had complained to the police and sought protection, came along to the police. He then, being under various police charges and asking whether he could do any good for himself, and then claimed she had asked him to murder her partner. Now that meant that from there onwards, some people call it tunnel vision, I call it targeting. In other words the police were quite convinced that Sue was guilty. And everything she said and everything she did had to be evidence of guilt.
And when you see this film, I want you to realise that even on this film, there is a lot more to indicate that Triffett’s evidence was utterly unreliable. But to people like Stuart Tipple, who was in Chamberlain, we spent many weeks in Darwin…
But this lady, one of the big pieces of evidence against her was a dinghy that was supposed to have been soaked in blood because it showed a positive to luminol. Now way back in Chamberlain, years before, luminol was known as a presumptive test only. Of no real value unless it was confirmed. And yet this jury had the impression of a dinghy soaked in blood.
You’ll see that in the film.
There were blood stains supposed to have been found on the boat, and yet it was well known, or should have been well known, that this man, the alleged deceased, had frequent nose bleeds. Now one would think that in these modern times, one can tell by forensic tests whether a blood stain has come through a wound or a nose bleed. Because if it comes through a nose bleed there are other matters with it. So far as this jury was concerned it had the impression of ordinary blood stains.
There now appears to be evidence, even more than you’ll see on the film, that the dinghy near the yacht was not the dinghy of the yacht, and was not the dinghy associated with the accused. There is after all a considerable difference between a grey dinghy and a white dinghy. And there’s a lot of evidence about a grey dinghy. More than in this film.
Now you’ll see the film. One thing I do want you to understand is this, that there’s a good deal more evidence indicating a real doubt in this case, than you’ll see in the film. And as far as I’m concerned, and I do claim to be somewhat of an expert on miscarriages of justice in the criminal area, there is no doubt in my mind that this case calls for an Inquiry. There are very substantial doubts about this case. I can put it this way. It would not have been at all surprising if the jury had acquitted this lady because the evidence was so weak against her.
But with the additional evidence that is now available, it is hard to see how any conviction could stand.
And so I come back to the words of in the words of Martin Luther King: Injustice anywhere is a danger to justice everywhere.
And on that basis I suppose we’re all concerned because so long as people such as you take an interest in these things, then something will be done about such cases.
Not so long ago Lindy Chamberlain was wrongly convicted. I don’t think any reasonable person can doubt that now. And the Coroner so held. But it was only the protest of numerous people in Australia, that saved Lindy Chamberlain. And it’s really your feeling as to whether you value justice so highly that you find it hard to accept… There is a very real doubt about the guilt of Sue in Tasmania.