As Dr Moles knows, I am no longer a prosecutor; my misfortunes in that respect having been the subject of gloating celebration for more than two years of hate-filled commentary on social and other media by certain Neill–Fraser supporters.
I have a keen interest in justice but that does not mean I am going to donate my services to testing arguments offered for a rich murderer who has been already ably represented on appeal by a real lawyer skilled and experienced in criminal trials and appeals (and who is now a Victorian Supreme Court Judge) who did not deign to advance the luminol shibboleth Dr Moles continues to.
No doubt that lawyer did not advance that argument because he would know that:
• it is not “ legal error” that a witness has given what might be contestable evidence on a matter of fact ( science being a matter of fact as much as any other );
• an appeal court will not select one phrase used by a witness as a basis to set aside a soundly-based conviction but will look at the whole of the evidence and the conduct of a trial;
• it behoves anyone seeking to advance such an argument based on the claimed contestability of the utterance of one witness to fairly and honestly set out the context in the trial. To fail to do so is intellectual dishonesty, and would be quite unacceptable to an appeal court.
I have said in my comments to the Women’s Weekly writer’s questions fed to her by anonymous Neill–Fraser supporters that the luminol/ blood in the dinghy argument ( if there is one ) is not probative of murder by her, or anyone. It was evidence led in the duty to present the whole picture. If there was blood in the dinghy it does not prove that Mr Chappell was murdered or that he was murdered by Neill–Fraser. It was never suggested it could prove that. It was not even suggested there was proven to be blood. Dr Moles does not attempt to address the question of materiality nor how he claims the evidence would be probative of Neil–Fraser’s guilt or, for that matter, innocence. He cannot claim it was advanced as a link in a chain of logic, let alone an indispensable link to guilt as would be required by Shepherd’s case before there was a miscarriage.
In earlier incarnations of this argument it was suggested blood in the dinghy if present was not probative because there might have been nose bleeds from Mr Chappell. That may be so; the point didn’t have to be argued at trial because there was no claim for there to have been proven blood. None of the actual, not armchair, participants in the trial saw it as of any importance or an issue by which the jury might be led into error.
An appeal court is entitled to consider the issues as perceived at trial.
Someone who was under a real lawyer’s ethical duties would not suggest there was “legal error” ( by whom? ) by a witness saying luminol was a test “for blood” without giving the transcript page and number reference. Dr Moles doesn’t give that reference. I can’t find it. I can find this at 639/25
“… if we’re looking for blood we use – well there
are two classes of tests that we can use. We can use a test called a
screening test or a confirmatory test. So in this case I used a
screening test. A screening test is a test that’s very very sensitive
for the substance that you’re looking for but it’s not necessary
specific. So in this case I used a chemical called liminal( sic ) which is a
screening test for blood.”
Someone under a real lawyer’s ethical duties seeking to make an argument as if to an appeal court would not claim that the witness who is criticised as Dr Moles does for saying it “was possible to determine if the luminol was reacting to blood” by the reaction without giving the actual quote ( 640/10 ) in which she only said it was “sometimes” possible, and would also concede that she did not say in this case that the luminol reaction in the dinghy she observed was indeed and conclusively that to blood. At the highest, at 658/1, she said there were several areas of staining in the dinghy she would say are probably not false reactions based on the type of reaction she observed ( which as is often pointed out would be no surprise if Mr Chappell had nose bleeds ). This was given in response to cross–examination and not led as part of the Crown case.
That lawyer would also say that immediately after that, the following exchange occurred at 658/22 (in cross –examination):
“..it is a possibility that what you saw was a false positive result and you cannot exclude that?…….
No, I can’t, certainly not.
Thank you”
Senior Counsel for Neill–Fraser was so pleased with this answer that he asked immediately for the lunch adjournment which was taken so it was the last evidence the jury heard before lunch.
The intellectually honest lawyer will draw attention to the fact that the same witness agreed and gave examples of many substances besides blood which would give luminol reaction and would not, as Dr Moles has, accuse the witness of “misleading’ on the apparently false attribution to her that she said lumilol was a test “for blood” as if for nothing else.
The real lawyer, one who has duties to the Court, in seeking to make an argument to an appeal court would be aware that it would be of especial importance to see what use the prosecution and the Judge had made of what was said to be the contestable evidence of blood in the dinghy and would advise the court that no mention was made of it at all by defence counsel or by the prosecutor in closing address nor by the Judge at all in his charge to the jury. He certainly would not claim, as have Neill–Fraser supporters and perhaps as has Dr Moles on another occasion, that something said by the Judge in the absence of the jury (1084/13) or in sentencing could be possibly relevant to whether there was an error of law infecting the verdict.
Nor would that real lawyer, at least if they were hoping to be taken seriously by an appeal court, make specious comparisons to the Guildford Four or Chamberlain and the like cases where the contested scientific evidence was a crucial part of the Crown case and indispensable to conviction.
Now I have already spent far too much time yet again addressing selective and misleading argument. I will not be replying again, not even when the Neil-Fraser supporters repeat their false claims such as “the jury was not told it was Mr Chappell’s son’s DNA in the latex glove” when the jury had that information in written form with them throughout their deliberations and the entire question has already been dealt with on appeal. Nor will I be addressing armchair detective theories for example based on a mistaken belief that every time an object like an EPIRB is touched there are left on it viable and readable fingerprints which then survive long immersion in water. As others have mentioned, there is now a little industry around this case, people selling DVDs and CDs, having gatherings, playing at being real lawyers without troubling to get the entitlement to practice as such and being answerable to a disciplinary body, driving their new careers in law and seeking to advance or perhaps revive political careers.
I still would like to see the asserted “fresh and compelling” evidence out of interest though, and not to have to accept that it is as claimed by others. I have asked Mrs Etter to produce it and to explain on her blog she has directed people to “in the public interest” how the evidence of Ms Lees in the Murdoch case of hearing a noise like a car and soon after seeing a firearm was not circumstantial evidence of Falconio being shot by Murdoch, given she seems to appears to claim it is not, but she will not publish that request.
T.J. Ellis SC
