Behind the wire: Sue Neill-Fraser. Image Supplied
Andrew L. Urban:
In what acclaimed legal expert Dr Bob Moles describes (60 Minutes, 9 Network, Sunday, August 24, 2014) as the worst miscarriage of justice in 40 years, the 2010 murder conviction of Sue Neill-Fraser has now been fatally and forensically undermined with the latest report from the Victorian Police Forensic Services Department.
[ The Neill-Fraser case: In 2010, Sue Neill-Fraser was tried and convicted of the 2009 Australia Day murder of her partner Bob Chappell on board their yacht, Four Winds, anchored in Sandy Bay, Hobart. Chappell’s body has never been found, no murder weapon was produced at her trial, there were no eyewitnesses and there is no forensic evidence linking Neill-Fraser to the murder. ]
As explosive and far reaching as the finding of the legendary matinee jacket in the Lindy Chamberlain case 28 years ago, the DNA report confirms that a person other than the accused was present at the crime scene. (The accidental discovery of baby Azaria Chamberlain’s matinee jacket near a dingo lair well after Lindy had been tried, convicted and jailed, led within five days to her release from prison, as it was evidence supporting a key element of her defence.)
In Ms Neill-Fraser’s case, the investigating police and the DPP during the trial, as well as the subsequent appeal judges, all dismissed the DNA sample found on the yacht and its provenance, as being of no consequence, “a red herring” said the DPP, Mr Tim Ellis, since it was probably transferred on the shoe of a policeman, he suggested to the jury. He told the High Court that “The core evidence was … she [the homeless girl] was not on the boat” – and the High Court refused leave to appeal on that basis.
The DNA of a then homeless 16 year-old girl found on Four Winds on January 30, 2009, is now confirmed by Victorian Police Forensic Services Department to be of primary transfer in nature, contradicting the evidence she gave at trial saying she had never been on the boat. (Ms Neill-Fraser’s lawyer was unable to access the necessary materials to have new independent DNA tests carried out until the Coroner’s report was handed down early in 2014.)
This report contradicts the prosecution’s argument on the matter, it contradicts the Court of Criminal Appeal’s reasoning for refusing to uphold this ground of appeal, and it contradicts the High Court’s view that the matter was not on a substantial point.
Taken together with a litany of serious legal and other forensic errors at trial, this represents a catastrophic failure of the justice system, and if such an error is not urgently addressed, democracy itself suffers through the erosion of public confidence in what is one of the main pillars of our democratic system – a safe, reliable, self-correcting criminal justice process.
Referring to the new DNA report, Ms Neill-Fraser’s lawyer for the past two years, Ms Barbara Etter APM, says: “The conclusion has to be drawn that the DNA was deposited directly onto the deck of the yacht by the homeless girl. Given the girl’s constant denials about ever having been on the boat, this development presents a rational or reasonable alternative hypothesis which has not been excluded as to what may have happened to Bob Chappell on Australia Day 2009”.
In his closing (CT pp.1428 – 1461) defence counsel Mr Gunson SC repeatedly mentioned the Meaghan Vass DNA. He argued that transference was not credible and that the homeless girl was on board. It therefore followed logically that she could not be excluded as a rational hypothesis.
In the Appeal Court, Mr Gunson (at p93) again stressed the implications of the DNA: “To say that it’s completely speculative is just not open in my respectful submission. It’s quite the opposite, you’ve got a person whose DNA is there about whom there is evidence that she’s lied to the Court or may well have lied to the Court about her whereabouts on that night. It went not just to the possibility of an alternative suspect, it also went to the issue of whether or not this boat had been the subject of unlawful interference at earlier or later stages, because that was part of the appellant’s defence.
Andrew L. Urban has been a professional journalist for over 30 years and is currently publisher & editor of online publications pursuedemocracy.com and urbancinefile.com.au He has contributed over 2,000 freelance articles to mainstream media including The Australian, Sydney Morning Herald, Sun Herald, The Bulletin and many others.
The evidence at Susan Neill-Fraser’s trial speaks for itself.
While the original trial transcript is not available publicly, the Court of Criminal Appeal has published a transcript of its decision to throw out her appeal, and it makes for sobering reading (• Court of Criminal Appeals decision. Read for yourself, here )
Ms Neill-Fraser lied repeatedly about her whereabouts on the night of the murder. She lied about the deteriorating state of her relationship with Bob Chappell. She lied (to the first police officer she met) about criminals using the yacht for drug-smuggling, before it was even known that Bob Chappell was missing. She lied about her clothing on the night of the murder. She lied about injuries to her hand and wrist that occurred on the day of the murder. She lied about the reason Bob Chappell remained on the yacht on the day of the murder. She lied about leaving the dinghy tied up on the day of the murder. She lied about Bob Chappell’s ability to use the dinghy. She lied about the yacht being broken into in Hobart. She lied about the yacht being broken into in Queensland. She then lied about ever claiming that the yacht had been broken into in Queensland. And she repeatedly referred to Bob Chappell as if he were already dead, while being interviewed by police just one day after the yacht had been found sinking.
Her farrago of lies were clearly aimed at creating a scapegoat, and obstructing the police investigation into her own activity on the night of the murder. She is yet to provide a verifiable explanation for any of her deceptions, so we still don’t know what she was doing that night.
Her supporters claim she was ‘confused’ or ‘on drugs,’ and have resorted to picking over legal minutiae, or raising spurious legal issues that were dealt with during the trial, the appeal, the inquest, and the rejected application to the High Court. But the evidence continues to speak for itself.
The full transcript of the Court of Criminal Appeal decision is lengthy. I’ve included what I believe to be some of the most compelling findings below, findings that have been glossed over by Susan Neill-Fraser’s supporters, with my own clarification added in [ ] brackets. For the full list of findings please visit http://www.austlii.edu.au/au/cases/tas/TASCCA/2012/2.html
The appellant [Sue Neill-Fraser] and the deceased [Bob Chappell] purchased and took possession of the [yacht] Four Winds at Scarborough Marina in Queensland. There was evidence suggesting that they had spent more than they had originally planned.
They hired two crew members for the journey from Queensland to Hobart. They were Peter Stevenson and David Casson.
[Bob Chappell then suffered a series of serious nosebleeds, and was admitted to hospital before travelling back to Hobart independently. Sue Neill-Fraser subsequently sailed the yacht to Tasmania with the crew members, and was met by Bob Chappell following arrival in Hobart].
Evidence was given by Mr Stevenson that during the journey the appellant said that her relationship with the deceased was strained, it was over and it had been for some time. She also said that she would like to borrow $100,000 from her mother to buy out the deceased’s interest in the yacht.
Mr Stevenson’s evidence was that [when SNF arrived in Hobart with the yacht] the deceased “went to approach Sue and she really just stood back from him and ignored him, didn’t sort of respond to his – to, you know, acknowledging that – how he was”. He said that he had noticed no sign of affection between them when they were together on the boat.
Evidence was given by the deceased’s son, Timothy Chappell, that on 26 December 2008, and again two or three weeks later, he was on the Four Winds when the appellant and deceased were both present. He thought that “there was quite a lot of tension between them”, and said that he “felt a bit uncomfortable on the boat because of the tension between them”. He referred to sniping words and obvious friction between them. The source of it appeared to him to be that they had different expectations for what they would do with the yacht.
Evidence was given by Jeffrey Rowe, a Queensland yacht broker who negotiated the sale of the Four Winds to the appellant and the deceased. He said that in the course of a telephone conversation he had with the appellant on 8 January 2009, she told him that she and the deceased had separated and she commented “that she was just tired of having to do everything”.
[On the morning of 26 January 2009 Sue Neill-Fraser visited Bob Chappell on the yacht, before departing later that morning to attend a lunch appointment.]
The appellant drove home to Allison Street, changed and returned to the Royal Yacht Club with Ms Sanchez for lunch. At the club, Ms Sanchez took some photographs of the appellant. They showed that she had no injuries or strapping on her wrist.
[Sue Neill-Fraser then returned to the yacht mid-afternoon on the same day. She told police that she had an argument with Bob Chappell, who she said told her he wanted to stay on the yacht overnight, so she took the dinghy back to shore after about an hour she estimated (leaving him stranded on the yacht overnight)].
The appellant said to police that it was safer for her to leave the deceased on the yacht without the dinghy because he was not adept at getting in and out of it on his own.
However, his son, Timothy Chappell, gave evidence that the deceased was quite capable in the dinghy. Ms Sanchez’s evidence was that on 25 January 2009, the deceased showed the appellant how to use a new outboard motor on the dinghy. The deceased’s daughter, Katherine Chappell, gave evidence that when she went out to the Four Winds on 26 December 2008, the deceased operated the dinghy and the appellant criticised him concerning the way he was driving it into the waves. There was also evidence that the deceased controlled the dinghy containing him, the appellant and two men who were going out to work on the Four Winds in early January 2009.
The appellant said that when she returned from the Four Winds [that afternoon], she tied the dinghy to a ladder at the Royal Yacht Club in her usual way with three knots. She believed she had tied it up adequately and said that it had never come undone before.
At 9.17pm on 26 January 2009, the appellant made a 14 minute telephone call to her daughter, Emma Mills, on the landline at Allison Street. At 9.31pm she telephoned her mother for about five minutes. At 10.05pm she received a telephone call on the landline from Mr Richard King. The call lasted approximately 29 minutes.
The next telephone call to or from the Allison Street landline was at 3.08am on 27 January, when a *10# call was made from it. The function of such a call is to retrieve the number of the last unanswered telephone call to a landline service.
John Hughes gave evidence that between 11.30pm and midnight on 26 January, he was parked at the end of rowing sheds at Marieville Esplanade when he saw and heard an inflatable dinghy with an outboard on the back coming from the direction of the Royal Yacht Club, heading northeast towards the Eastern Shore of the Derwent. It was open to infer from that evidence that it was travelling roughly from where the appellant had said she left it at the Royal Yacht Club and roughly towards the Four Winds. Mr Hughes said that there was only one person in it who had the outline of a female, but he could not be definite. He was “almost 100 per cent definite” that there were no other persons in the area of the sheds.
At about 5.40am on 27 January, a witness found the dinghy bobbing against rocks. The witness secured it. With another man he headed out in a boat. As they passed the Four Winds they noticed that it was very low in the water on its mooring. They boarded it. Shortly after, the police arrived as a result of a call.
[The dinghy’s painter (the rope with which it was allegedly tied to the ladder)] was inside the dinghy, which suggests that it had been put there by someone and that it had not simply come undone from the ladder where she said she had tied it. If it had become undone with the result that the dinghy drifted away, it is likely that the painter would have been trailing in the water.
At 7.04am, on 27 January 2009, an unanswered telephone call was made from the landline at Allison Street to the appellant’s mobile telephone which was later found on the Four Winds. No further call was made by the appellant to that telephone and she raised no alarm. Having received reports of the Four Winds sinking, police telephoned her on the landline at Allison Street at 7.11am. She headed directly to Marieville Esplanade in the car. Her evidence was that she had parked it overnight outside the house.
On the shore at Marieville Esplanade, before it was known that the deceased was missing, she spoke with Constable Shane Etherington. She told him that the deceased had been on the yacht making some repairs in relation to some panels that had apparently been loosened by unknown persons. She said that she believed the boat may have been boarded in the two or three days prior to the deceased being on it. She explained that a similar yacht had been used to smuggle drugs into Australia from other countries and the drugs were stashed in similar panels and she believed that was what may have happened to the Four Winds. She asked if the police had sniffer dogs which could go onto the yacht.
That morning, a red jacket was found on a brick wall outside 2 Margaret Street by the occupant. It was about 120 metres from where the appellant said she had left the dinghy tied up on 26 January. The occupant had not seen it there when he arrived home the previous evening at about 6pm. A police officer took possession of it and it was placed in the boot of a police car at Marieville Esplanade. It was shown to the appellant who said that it did not belong to her and she had never seen it before. However, a swab taken from the inner surfaces of the collar and cuffs of the jacket was found to contain a DNA profile that matched her DNA profile and the chances of some other unrelated person matching it was less than one in 100 million.
When the appellant was at Marieville Esplanade that morning, police officers observed that she had some strapping round her wrist and a Band-Aid on her left thumb. She said she had cut her thumb. At the request of Constable Stockdale she removed the Band-Aid and revealed a one to two centimetre cut. In the course of the conversation she said that her fingerprints might be on a torch on the Four Winds. A torch was indeed found on the Four Winds. It had human blood splattered on it and a DNA analysis of the blood matched the DNA profile of the deceased.
When police boarded the Four Winds that morning they noticed blood on steps, a knife on the floor of the wheelhouse and the torch with blood on it and no trace of the deceased. The yacht was low in the water and sinking. The causes were located. A pipe to the for’ard toilet had been cut allowing seawater to flow in. It was also discovered that a seacock under the flooring in the for’ard part of the yacht had been opened, allowing seawater to flow in.
Evidence was given by Constable Lawler, who had experience in marine and rescue services and with water craft, that in his opinion the person responsible for cutting the pipe and opening the seacock had an intimate knowledge of the Four Winds. That was particularly the case with the seacock, which was under a carpet and panel, and which served no apparent purpose.
The operation of the plumbing aboard the Four Winds, including the location of the cut pipe and the seacock, had been explained to the appellant by a plumber, Mr Klaas Ruiter, when working on the yacht in Queensland. A photograph in evidence showed her with the book open at the plumbing diagram. Evidence from Mr Nathan Krokowiak, a mechanical fitter who worked on the yacht on or about 15 January 2009, was that he explained to her about “gate valves, seacocks and things like that which are open to the outside of the vessel” whilst working on the area containing the seacock which was found on 27 January to have been opened.
The inflatable dinghy had many areas that were positive to luminol, a screening test for blood but not a conclusive one.
Sergeant Conroy also gave evidence that the appellant drew attention to some rub marks on the wooden surrounds of the main hatch for entry into the yacht, which she said had not been there before. The Crown maintained that the marks were small and inconspicuous. There were fibres in the marks that appeared consistent with those from a rope.
It was also Sergeant Conroy’s evidence that when speaking to the appellant on 28 January, at which time he obtained a statutory declaration from her, she referred to the deceased throughout in the past tense, although at one time she apologised, saying that she and the family had come to the realisation that he was dead.
In the days following 27 January she told Timothy Chappell that she had been to Bunnings the afternoon before.
On 28 January 2009 she made a statutory declaration in which she said that after tying up the dinghy at the Royal Yacht Club she went to Bunnings for a long time, although she did not buy anything, just browsed. It was starting to get dark when she arrived home. She mentioned the telephone calls she made and received and said she got off the telephone at 10.30pm. That accorded with records. She said that she stayed alone at home that night and that the following morning she was notified the yacht was sinking. She made no mention of travelling to Marieville Esplanade after 10.30pm.
On 5 February 2009, she told Constable Marissa Milazzo and Detective Senior Constable Shane Sinnitt that after she left the Four Winds on 26 January she went straight out to Bunnings. [She then gave detailed evidence about her clothing on the day and her movements around the shop].
When interviewed by police on 4 March 2009, she continued to maintain that she drove to Bunnings from the Yacht Club. She said she remembered feeling guilty when doing so because she thought that if the deceased telephoned her, he had her mobile and she was not at home. However, she was aware that police had examined CCTV footage at Bunnings and could not find her on it and retreated to claiming that she was “pretty sure” she had gone there. She was told that Bunnings shut that day at 6pm, which made it unlikely that she could have been there for “hours” as she had previously claimed.
Later in that interview she maintained that she did not leave her home on the night of 26 January after receiving the telephone call from Mr King.
On 5 March 2009, Detective Sergeant Conroy spoke to the appellant’s two daughters about the investigation and showed them a photograph taken by a camera at the corner of Sandy Bay Road and King Street, Sandy Bay, at 12.15am on 27 January 2009, which showed a grey station wagon similar to the appellant’s vehicle travelling on Sandy Bay Road. The appellant’s daughters were in constant contact with her.
Ms Sanchez gave evidence that on either 8 or 10 March 2009, she had a telephone conversation with the appellant, in the course of which the appellant told her that on the night of 26 January she was disturbed or anxious about the content of the telephone call from Richard King and had driven down to Sandy Bay, looked across at the yacht, but it was in darkness, and then drove back. That was the first occasion upon which the appellant had admitted to returning to Marieville Esplanade that night.
On 13 March 2009, she was interviewed by an ABC journalist, Ms Felicity Ogilvie. She told Ms Ogilvie that after the telephone call from Mr King she drove down to the boat to check that everything was okay, did not see anything going on at the yacht and drove home. She added that she saw homeless people with fires while down there. Ms Ogilvie later provided that information to police. It was the first time they were aware that the appellant had returned to Marieville Esplanade on the night in question.
On 23 March 2009, Ms Sanchez had another telephone conversation with the appellant in which the appellant said that although she had driven down to Marieville Esplanade that night, she left the car there and walked back home to West Hobart for the exercise. It was the first time she said she had left the car at Marieville Esplanade.
Police interviewed her again on 5 May 2009. Asked about what she had done on the afternoon of 26 January after going out to the Four Winds, she said that she had been mistaken about going to Bunnings, claiming that she had mixed up the day with another day a few days earlier when she had left the deceased on board the yacht and gone to the store.
During the same interview, she said she had been on the yacht on the afternoon of 26 January until later than she had previously indicated, and after tying the dinghy at the Royal Yacht Club, she walked back to Allison Street, West Hobart, leaving the car on Marieville Esplanade or around the corner in Margaret Street, she could not remember which. She said she did not remember whether it was daylight or dark. After the telephone call from Mr King, the content of which had unnerved her, she decided to collect the car and drive it home so that it would be available to her to drive to the yacht if the deceased called her. She decided not to telephone him because having regard to the lateness of the hour, he might be asleep. So she walked to the car at or near Marieville Esplanade. However, on arriving there she found she had farm keys and not the car keys and had to walk back to Allison Street to collect them and return once again to the car. She then drove along to the rowing sheds, which was the only place from which the boat could be seen properly. She got out, walked down to the beach and saw a fire going and homeless people there. She could not see the boat because it was pitch black. She felt a lot better for having gone there. She then drove home.
In that interview, the appellant was told that the red jacket police had shown her on the morning of 27 January was in fact hers because it contained her DNA. She conceded it was hers and said she had no idea how it came to be on the fence in Margaret Street.
She agreed in the interview that when on 27 January she gave an account to police of her movements the night before, she had not told them about returning to Marieville Esplanade. She gave as her reason that she was worried Timothy Chappell would be upset at mention of her concern about the subject of the telephone conversation from Mr King.
She also told the police that when the yacht was being repaired at Scarborough Marina in Queensland, the mechanic, Mr McKinnon, advised her that it had been illegally entered and panels had been opened and things moved about.
It was Timothy Chappell’s evidence that on 27 January the appellant told him that the yacht had been broken into twice in Hobart on its mooring, which surprised him because he had not heard about it before. The appellant told Constable Etherington on 27 January that the Four Winds may have been boarded two or three times before, that some panels had been removed by unknown persons, and that the yacht may have been used to smuggle drugs. On the same day, she made a statement in which she said that approximately 13 days before she and the deceased discovered that someone had been on the yacht unlawfully. She noticed that the chart table had been accessed and the freshwater pump cover and the electrical switchboard had been opened. She said exactly the same thing happened in Queensland in October when someone had been on the boat.
A marine mechanic, Mr James McKinnon, gave evidence that the appellant and the deceased commissioned him to inspect the Four Winds in Queensland and to work on it at Scarborough Marina. During the course of the work he reported to the appellant that he believed someone had been entering the yacht after he finished work some days, and he also told her that on one occasion he noticed an electrical panel had been removed. However, he subsequently discovered that an electrician, Chris Geddes, had done that and he told the appellant that was the case. Evidence was also given by Mr Rowe that he had also discussed with the appellant about the electrical panel having been opened and about the situation that people thought the boat was being broken into. He said it was discovered that an electrician had been working on the switchboard of the yacht and he informed the appellant of that.
That evidence of Mr McKinnon and Mr Rowe was not challenged by the appellant’s counsel in cross-examination. However, the appellant gave evidence that it was she who told them that it was Mr Geddes who had entered the yacht.
On 27 January 2009 the appellant told Sergeant Conroy that Four Winds had been entered on two occasions, that it appeared to her that something heavy may have been lifted out, and she believed it was drug smugglers and that the deceased may have been on the yacht when they came back to it.
On 13 February 2009, in a telephone conversation, the appellant told Sergeant Conroy again about break-ins on the vessel. On 19 February she mentioned her belief that the prefix PV in the registration number of the yacht stood for Port Vila, and that drugs smugglers from Europe went to Port Vila and that was a line of inquiry she thought he should follow.
In the course of being interviewed on 5 May 2009, the appellant denied that there had been any break-ins on the yacht in Queensland or Tasmania and she denied saying that it had been searched.
When giving evidence, the appellant said that she and the deceased went aboard the Four Winds on 10 January 2009 and found it had been entered and searched, with floor hatches pulled up, cupboard doors open, some of the cushions unzipped and mattresses flicked up, but there was no damage and nothing was missing. They decided between them not to report the matter to police. Later in evidence she denied ever saying that the yacht had been broken into in Queensland.
Other circumstantial evidence relied on by the Crown included the evidence of Mr Phillip Triffett. He gave evidence that he and his partner had been friends with the appellant and the deceased some years before, and that the appellant owned a yacht at that time which she kept at a marina down Electrona or Margate way. He said that when they were on the yacht in about 1996 or 1997, the appellant asked him to assist her in taking her brother Patrick out to sea and throwing him overboard, because he was in her way over their mother’s property. She said they would weigh him down with a toolbox and that Mr Triffett would then take the yacht closer to shore and sink it after she had gone ashore in the dinghy. She showed him how they could sink the yacht by using the bilge pump.
Mr Triffett also gave evidence of a conversation not long after at the appellant’s home when the appellant complained that the deceased was mean with his money and “dangerous around the kids” and she said he had to go. She wanted the same thing to happen as she had suggested before, except that she wanted the deceased to be wrapped in chicken wire.
Ben Lohberger grew up in southern Tasmania and lives in Glen Huon, where he’s currently working on his house and farm. He has previously worked for a range of employers including the Department of Social Security, Media Monitors, the Premiers Office, the Tasmanian Greens, Aurora Energy, and The Parthenon (No IV).
• Eve Ash, in Comments: Anyone who missed 60 Minutes 24 August and the new evidence, new leads, and problems with the forensic science in the case …
• Ben Lohberger, in Comments: Susan Neill-Fraser’s supporters appear to have access to the transcript of Ms Neill-Fraser’s trial, a transcript that is not available publicly. If they are going to cherrypick …