Tasmanian Times

The individual has always had to struggle to keep from being overwhelmed by the tribe. If you try it, you will be lonely often, and sometimes frightened. No price is too high for the privilege of owning yourself. ~ Friedrich Nietzsche

The individual has always had to struggle to keep from being overwhelmed by the tribe. If you try it, you will be lonely often, and sometimes frightened. No price is too high for the privilege of owning yourself. ~ Friedrich Nietzsche

Article

Reviewed! Murder by the Prosecution

The yacht at the centre of the controversy ... Four Winds

 

Murder by the Prosecution by Andrew Urban, Wilkinson Publishing, 2018. The book was launched at 5.30 pm on Thursday 6th September at Fuller’s Bookshop and is in Hobart bookshops, price $30. It was launched by former premier, Lara Giddings.

This is both a book about a number of Miscarriages of Justice around Australia and a personal journey by Hungarian-born Andrew Urban. The interest to Tasmanians is both how vulnerable any justice system is to human errors, human egos, and human carelessness, and the space it gives to the Sue Neill-Fraser case.

Long-time film critic Urban became interested in the case after watching Eve Ash’s film Shadow of Doubt. In the process of coming to Hobart to find out more about the Neill-Fraser case he also widened his researches into other high profile cases such as Henry Keogh in South Australia and Gordon Wood in Sydney and includes an earlier case, that of Garry Nye in NSW, for whom he wrote an obituary. In both the Keogh and Wood cases the professionals got it terribly wrong, in my view. South Australia used a Dr Colin Manock as their Chief Forensic Pathologist even though he wasn’t qualified which has led to hundreds of his cases needing to be re-evaluated.

Gordon Wood was said to have thrown his girlfriend Caroline Byrne off the notorious suicide place The Gap and this was supposedly proven by a scientist throwing women into a swimming pool in broad daylight. This is a pertinent reminder that re-enactments have little value and can be seriously misleading unless they recreate time, place, people and actions as closely as possible.

Urban draws on comments that originally appeared on the Tasmanian Times web-site to give an idea of the responses the Neill-Fraser case has drawn from the Tasmanian public. He also quotes that vital summing-up by Dr Bob Moles, “if there was a reasonable possibility that Mr Chappell just disappeared, or if he committed suicide or had an accident, or was killed by some other person, then the accused cannot be convicted. Each of those alternative explanations have to be excluded “beyond reasonable doubt” otherwise, any one of them would constitute a reasonable doubt and be inconsistent with a finding of guilt.”

A former Tasmanian Ombudsman told me a circumstantial case needs to be conducted by the most rigorous standards of evidence, not speculation. Whereas Urban points out that the DPP Tim Ellis “repeats his speculation” (in his closing address to the jury) “but admits he doesn’t really know what the murder weapon he alleges she used was.” Without a body “no weapon/s could be ascertained.” It didn’t stop the DPP showing a knife to the jury and then mentioning a wrench more than 20 times.

Although moving between cases makes the book seem a little scrappy this is offset by the passion for justice and the warmly human response Urban brings to his writing. These are not statistics, cases, or numbers but ordinary human beings caught in terrible situations. The book is a timely reminder that, in Ludovic Kennedy’s words “Justice is too important to be left to the judiciary” (or to the police). It is something which concerns us all, not something removed from everyday life to the sterile and stylized confines of our courts. Because no wrongly convicted person can ever have those missing years returned to them. They may also lose homes, families, careers, income, reputations, self-esteem, trust and faith.

Ludovic Kennedy wrote of a Scottish miscarriage of justice in A Presumption of Innocence and said, “A law that people can have faith in is one big enough to admit mistakes, on the rare occasions they occur, and then endeavour to correct them.”

Andrew Urban’s book Murder by the Prosecution is a timely reminder that we as a nation make heavy weather of admitting and correcting mistakes. He provides a very readable and interesting insight into how mistakes are made and how our legal systems are so reluctant to correct them. I hope many people will read his book and ponder on how we can make Australia’s legal systems less about winning and more about seeking the truth.

 

Jennie Herrera

Author Credits: [show_post_categories parent="no" parentcategory="writers" show = "category" hyperlink="yes"]
12 Comments

12 Comments

  1. Dr Peter Lozo

    October 6, 2018 at 6:25 pm

    Misconceptions about the Four Winds dinghy and the tipping of a body overboard

    A number of people expressed an opinion about the possibility of the dinghy either tipping over or capsizing. Below I copy a few relevant comments.

    1. “I have always questioned how a woman could put a body in a dingy and tip it out of the dingy somewhere in the river by herself without capsizing! I would bet that an experiment to do so would find it very difficult if not impossible.

    by Jacinta Marr on July 27, 2018 at https://wrongfulconvictionsreport.org/2018/07/24/sue-neill-fraser-what-the-jury-didnt-hear/#comments

    2. “Through all of this no-one has addressed the issue of how a woman on her own could tip a body out of a dingy without tipping it over! Try it and see, its actually near impossible. Given that there is no material evidence inside the dingy, seems like a rather large hole in the case, on a practical level to me.”

    by J M on July 3, 2018 at https://wrongfulconvictionsreport.org/2018/07/01/sue-neill-fraser-abc-

    3. “Actually, tipping a body over the stern is fraught with hazards, assuming there is no third person in the bow to provide a counterweight.”

    by Steve at http://www.oldtt.pixelkey.biz.au/index.php/article/sue-neill-fraser-the-sentencing-blow-by-blow

    On robustness and the stability of inflatable dinghies

    Here are two YouTube videos for those who don’t understand how robust and stable inflatable dinghies are.

    1. Watch “Capsized rubber boat” on YouTube
    https://youtu.be/er-ZOmGW-x8

    Note that when 3 youths (whose combined weight is probably over 100 kg) are sitting on the same tube of the dinghy, the other side of the dinghy hardly lifts up. Note that when two male youths are standing on the same tube of the dinghy, the other side of the dinghy hardly lifts up. But, as the two boys jump off they are pulling on the ropes and thus flip the dinghy over. This dinghy is a bit longer and wider than the Four Winds Dinghy (looks to be about 4.5 meters in length; Four Winds dinghy is 3.6 meters in length).

    2. Watch “2 Inflatable boats in big swells.” on YouTube

    https://youtu.be/Ekqxr_85yis1

    Note how well the inflatable dinghy handles the large swells. This dinghy is probably a bit smaller than the Four Winds dinghy.

    Wind condition for 26th January 2009

    People should note that whilst it was reasonably windy and choppy in the afternoon on 26th Jan 2009 (one witness said that the waves were about 3 foot high), the wind dropped down significantly by the evening. Those who took note would have read a significant and relevant sentence in Sue’s Statutory Declaration (as it was transcribed on page 59 of the Trial Transcript):

    “Bob had checked the charts and said the wind would drop out and said he had decided to stay on the boat.”

    Over a year ago, I went online to see what the wind was like in Hobart for that day. The wind chart shows that (in Hobart) the wind was as follows

    From 1 pm to 8 pm, the wind speed was in the range 20 – 25 miles per hour. From 8 pm to 8 am the next morning, the wind speed was about 10 miles per hour.

    See the chart here https://www.wunderground.com/history/daily/au/hobart/YMHB/date/2009-1-26

    It was the Crown case that Sue returned to the yacht at around midnight. This is most probably when Sue lowered the body onto the dinghy (likely via the stern gate) and then dumped it some distance away from the yacht.

    In conclusion: I don’t see any significant issues related to the lowering of the body onto the Four Winds dinghy late at night when the wind dropped to about 10 miles per hour, transporting the body via the dinghy some distance away from the yacht, and then tipping the body overboard. It is entirely possible that the body was lowered across the bow of the dinghy so as to enable easy push overboard. It is also entirely possible that the weights were tied to the body by a length of rope and then lowered into the water before pushing the body overboard.

    Here is one relevant comment that was made in response to Steve’s comment:

    “Try lying in the bottom of the dingy and pushing with your feet. Stability and reach plus strength. Don’t forget SNF was an experienced sailor and had spent a lifetime working with horses. Don’t mess with horsey women!”

  2. Dr Peter Lozo

    October 6, 2018 at 11:06 am

    GORDON WOOD case: some science

    I think that it would be useful for those who don’t have tertiary education in physics and yet are offering an opinion on the work that was conducted by the prosecution expert witness (A/Prof Cross), to read the following:

    CLIFF FALL IN SYDNEY
    By Rod Cross, Physics Department, Sydney University. 

    “The following specific examples from the judgement illustrate some of the many instances where the judges used their higher authority to prove that I got it wrong. In all, I counted 170 factual mistakes made by the appeal judges. That was just concerning my own evidence. There were too many to include them all in this brief summary.”

    See

    http://www.physics.usyd.edu.au/~cross/FORENSIC-PHYSICS/CLIFFFALL.htm

    Note: Rodney Cross is a Physicist. He was an Associate Professor of Physics. But in paragraph 9, the Court of Criminal Appeal decision has this sentence “Although his evidence was important to the Crown case it is now apparent that it was because of the efforts of A/Prof Rod Cross, an engineer, that the police were able to make progress towards a prosecution.”

    Court of Criminal Appeal Decision

    Wood v R [2012] NSWCCA 21 (24 February 2012) Supreme Court of New South Wales – Court of Criminal Appeal Decisions

    http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2012/21.html

  3. Dr Peter Lozo

    October 4, 2018 at 10:13 am

    The fairy tale invented by the MoJ campaigners in the Neill-Fraser case has an interesting parallel to what has been going on in the US with respect to the Steven Avery and the Brendan Dassey cases. In both the Tasmanian case and the Wisconsin case, the supporters of the convicted person(s) are treating the respective prosecutor as the villain whilst the convicted person is the hero.

    In the South Australian case of Henry Keogh, his supporters are treating him as a hero whilst they are treating Dr Manock as a “fraud” and the villain. Mr Keogh even got a standing ovation at the 2017 Misscarriages of Justice Symposium that was held in Adelaide last year. Did Mr Keogh during his talk at that symposium mention that on the Valentine’s Day in 1994 (a month before Anna-Jane Cheney’s death) he met, at different time of the day and location, both of the women he had a relationship with whilst he was supposedly in a relationship with Anna-Jane. He even gave one of these two women a Valentine’s Day card. When she got the card she asked him: does this mean that you are mine. His reply was YES! And yet he was to be married to Anna-Jane 3 or so months later. Did Mr Keogh mention during the same talk (or at any other time except at his 1995 trials) that not only did he forge Anna-Jane’s signature on insurance application forms (and has also provided false information on those applications) but had also forged her signature on cheques that were used to pay the initial premiums, as well as on automatic debit forms for the periodic payments of the 5 insurance policies? Mr Graham Archer, in his book about the case, has suppressed a lot of incriminating circumstantial evidence against Mr Keogh.

    I gather that Mr Urban, in his book which is primarily on the SN-F case (but also has a section on the Keogh case) has similarly suppressed some circumstantial evidence against Ms Neill-Fraser.

  4. Dr Peter Lozo

    October 4, 2018 at 8:57 am

    The most significant forensic discovery since 2004 about how Anna-Jane Cheney died is now available at:

    https://m.facebook.com/story.php?story_fbid=873301189539948&id=100005802249120

    I will write more on this in the near future.

    William, unlike you, I don’t speculate but reason about the case evidence.

    My well reasoned opinion is that Sue is definitely guilty.

    My well based scientific opinion is that Anna-Jane Cheney was definitely forcibly drowned (whilst leaning over the bathtub and then had her face pushed into the water via pressure applied to the back of her neck).

    My understanding of physics is that Carolyn Byrne couldn’t have, without assistance, reached the necessary take-off horizontal speed to reach the further of the two locations. Therefore, if the further of the two location was the correct location, then she must have been thrown by someone. Experiments have demonstrated that there does exist a throwing technique such that a man who could bench press 100 kg would have sufficient physical strength to throw a woman of Carolyn’s weight at a sufficient speed for her to land that far out, and without requiring as long a horizontal run-up as was available at the scene of death. There was moonlight at the time a woman’s scream was heard. But moon set before Gordon saw parts of Carolyn’s foot- it was pitch dark at that time. But the prosecutor chose not to present information that there was moonlight at the time a woman’s scream was heard.

  5. John Wiseman

    October 4, 2018 at 8:09 am

    Poppy. SNF stuck to her alibi for many weeks. Long after the cameras and microphones were removed. It was only when the police advised her daughter that they had footage from a cctv in Sandy Bay did she contact the abc reporter to change her story. I hope she enjoys her porridge because thats what murderers eat.

  6. Poppy Lopatniuk

    October 2, 2018 at 6:46 pm

    Andrew Urban’s book “Murder by the Prosecution” shows his long time interests for fairness and thorough investigation by fully qualified professionals in the trials of those accused of murder. These days there is rightly distrust of those in the judiciary who, by subtle means, and the airing of personal perspectives can influence juries to the detriment of the offender appearing at court.
    To most ordinary women it would be a very daunting experience when trying to deal with the shock and bewilderment of a very personal and perplexing loss of a husband to have reporters thrusting their microphones in your face, photographers jostling for an angle and the looming intense presence of police in background, adding to the pressure. Composure and having to remember with clarity events of recent happenings while in a distressed state would not be easy.
    Both Lindy Chamberlain and Joanne Lees had to deal with this predicament when the media splashed their photos and stories nationwide. I believe the media does give a very sensationalised version of these tragic events with little compassion shown. Witnesses come up with rumours and grudges giving a biased impression of these stories and often a first impression is a lasting one.
    Having had close encounter with many members of our state and local government in my twenty year endeavour to get the government to acknowledge the cancer cluster at Wentworth Park, a beachside suburb on the eastern shore, Hobart I can fully endorse the need for greater transparency and honesty by government into the ‘miscarriage of justice’ and corruption that follows.

    • Dr Peter Lozo

      October 4, 2018 at 9:09 am

      Poppy, what kind of a dinghy did you muck about in all those years ago? I ask because I read your comment where you wrote that a dinghy would tip over if one tried to throw a body overboard. Unlike aluminium and wooden dinghies whose design and buoyancy is very different to inflatable dinghies, the latter are very stable. The dinghy in question, the Four Winds dinghy, is an inflatable dinghy (that can carry up to 5-6 adults) and is much more stable than other dinghies. Therefore the problem that you envisaged isn’t an issue in this case. Plus, there are a variety of ways one can tip a body over from an inflatable dinghy without having to stand up. Such inflatable dinghies aren’t deep. Have a look at the few online photographs of the dinghy in question.

      • Poppy Lopatniuk

        October 5, 2018 at 8:41 pm

        Dr Lozo With reference to your questioning about my earlier comment appearing on Tas Times in 2014
        “Years ago when I was young and strong I used to muck about a lot in dinghies in our inland rivers. Had I ever tried to get an inert heavy body over the side, I could not have managed it without the dinghy capsizing. Currents and movements of waters in the bay would make capsizing even more hazardous.”
        About the dinghy .. it was most certainly not an inflatable and certainly had no motor attached – it would have been either wooden or tin/aluminium and method of propulsion was rowing with oars and then when waters were calm and peaceful. Pretty unstable getting in and getting out of.
        I certainly did not infer in my comment that a dinghy would tip over if one tried to throw (your word) a body overboard nor did I mention about standing up (your wording) in a dinghy to do so. I am sure neither myself when young or Mrs Neill-Fraser were of herculean stature and able to throw an inert body from a dinghy into the water. In early reports of her trial it was suggested that she headed to where the currents in the river were strong enough to take a body downstream. I believe that in rough waters an inflatable dinghy would be tossed around in such waters and any method getting a body overboard would have been hazardous for one person.
        I have never met Mrs Neill-Fraser or any of her family. I have seen very few proven facts about her case but much surmising and fabrication as to what may have happened.
        I have great empathy for anyone fighting for justice in Tasmania. Numerous Integrity Commissions have not been able to perform their duties because of government interference and the muzzling of politicians gives little faith to the public other than to put up and shut up.

  7. John W

    October 2, 2018 at 11:34 am

    And John Wiseman, that is where it ends.

  8. Burt

    October 2, 2018 at 8:34 am

    Jenny Herrera’s review of Andrew Urban’s book conforms to the Neill Fraser Supporter’s template of public comment, namely
    1. Make sure you name and demonise the prosecutor, as every good fairy story must have a villain (and of course the heroine in this story is always “Sue”)
    2.Quote Bob Moles, in this case for the inane and legally wrong proposition that because Moles ( or Urban , or anyone who was not on the jury and so saw and considered all the evidence ) can think of hypotheses consistent with innocence then the conviction of Neill – Fraser must be wrong , when in law it is the for the jury ,not the peanut gallery, having heard all the evidence to eliminate hypotheses consistent with innocence until only guilt remains , if a guilty verdict is to be returned .
    3. Repeat one of the well-worn lies such as” the prosecutor argued there was blood in the dinghy when there wasn’t” (the lie the only other reviewer of this book advanced, presumably because Urban had advanced it) or make up a new lie or exaggeration. Here, Ms Herrera offers that that the DPP mentioned a wrench “more than 20 times”. According to the transcript it was only 15 times, with six times appearing at 1297 in cross-examination after Neill- Fraser herself had raised wrenches for the first time, then seven times within one passage in closing address at 1392 and twice at 1407. Still, “more than 20 times” is more dramatic than 15 times occupying 3 of 1590 pages isn’t it?
    In the same vein the author Urban in his account of his book launch in his tendentious blog reports that he said to the enthralled supporters there gathered, in rubbishing the submissions made in the High Court that the contentious stranger’s DNA sample on the yacht may have been transferred on a boot,
    “Some boot it must have been: the stain recorded by the Tasmanian forensic service was the size of a pancake, but that was not discussed.”
    The source of the “size of a pancake “claim was not revealed, and it certainly isn’t in the trial transcript. Never mind, this is advanced not only to debunk the claim which doesn’t suit Urban’s speculation but also it seems to suggest that the High Court was misled. I presume Ms Herrera was there- did she strive to correct or clarify this remark of Urban’s, or is this now to join the roster of mistruths the supporters love to trot out?
    If only a Court hearing Neill – Fraser’s appeal had said the prosecutor had caused a miscarriage of justice by misrepresenting the blood evidence and by making misleading statements concerning it , or by making speculative submissions which were apt to “mislead and confuse”, or by making comments which were “inflammatory and derogatory and likely, if not actually intended, to cause unfair prejudice to the appellant” and making a comment which was ” gratuitously pejorative and fundamentally irrelevant” which ” represented a crossing of the boundary between what was legitimate and what was illegitimate for a Crown Prosecutor to say to a jury.” In New South Wales in 2013 the Court of Criminal Appeal unanimously found a prosecutor had caused a miscarriage of justice by doing all those things, and set aside the appellant’s conviction for murder as a result -Paul Darcey Armstrong v R [2013] NSWCCA 113. The prosecutor’s name? Margaret Cunneen SC who has endorsed Urban’s book on the cover ( she may have written the forward too , I am not going to waste $30.00 to find out) and who has written the only other review of this book.
    Meanwhile, I await Urban’s answers to the questions of just how much of the evidence has he seen or read and why he is so much more clever than the jury, and other still unanswered questions , on another of these interminable threads.

  9. John Wiseman

    October 1, 2018 at 8:34 pm

    If Sue Neill Fraser had not lied so much throughout the investigation into her husbands disappearance I could agree partially with the arguement about beyond reasonable doubt. There was such lying about her alibi, witness statements about her saying she was leaving Bob or asking about removing him etc. I would have said guilty if I was on the jury. Innocent people make mistakes but the guilty will lie to save their skin.Sue deserves her fate.

  10. William Boeder

    October 1, 2018 at 11:05 am

    Ever since this SN_F case had been dissected and the many refutations were declared by Dr Peter Lozo, my questions have been consistent to Dr Peter Lozo in that justice had not been served by the Judiciary in our State.
    Over a period of almost 3 years, the relentless endeavours by the above specialist has continually relied on the submitted evidence and whatever forensic examinations were initiated, add to that the overall opinion that the suspicious circumstances surrounding the disappearance of Bob Chappell having been pursued by the State police and State Judiciary had also followed the same line of reasoning.
    Now, this comment is not to claimed as a criticism, I have expressed the views held as being remarkably similar to the views held by many others.
    Though the one stand-alone fact is that the hypothetical assumptions and or postulations submitted by Tasmania’s DPP, really held no basis for the prosecutor to submit his mixed bag of the power of suggestion circumstantial only evidence.
    All the legalistic processes that followed were hinged upon the suggestive themes introduced by the DPP. Pure and simple.
    There had been the emphasis dwelt upon by the prosecution, and others, that the initial replies to these constant and repetitive questions were not necessarily satisfying nor acceptable to the investigating police, then why should SN-F not offer a slightly varied response, her own mind asking herself the question, will a somewhat varied reply be more acceptable and able to satisfy the ever questioning police investigators?

    Such a scenario is just as credible as the DPP speculative submitted modus claimed toward SN_F had been given for the Court’s consideration.
    To argue differently is pointless as the speculative DPP hypothesis was subsequently held foremost in the minds of all in attendance. Indeed this must have had the same effect on the jury panel as it did in the presiding Judge’s summation of the matters for the jury to consider.

    Now I can state that Dr Peter Lozo had later entered into this case matter to dissect and examine the witness statements and the DPP evidence that was tendered in the SN-F trial.

    One can compare the carriage of the SN-F case to that of the Keogh case, neither case had been conducted in the strict disciplines obliged to the presiding judge.
    In the SN-F case the said judge had incorporated (the power of suggestion) the evidence proffered by the DPP that had not held any supportive basis, other than unsubstantiated non-fact evidence, thus the Judge and jury had become reliant upon a fist full of circumstantial evidence that was incorporated in the summation by the judge to the jury.
    The result plea for Keogh (despite my own speculative opinion of his guilt) was that he had been convicted on the basis of unsound evidence provided by a non-qualified pathologist. (Dr Mannock.)

    Tasmania’s then DPP had modelled his prosecution to that which had brought about the conviction of Bradley Murdoch, an appeal to that conviction had later been withdrawn.
    https://www.theguardian.com/world/2006/dec/12/australia.ukcrime

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