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Legal, police experts want SNF appeal re-opened

Legal, police experts want SNF appeal re-opened

By Bill Rowlings, President of Civil Liberties Australia.

Two experts on the Sue Neill-Fraser case have asked Tasmania’s Attorney-General, Elise Archer, to request the Court of Criminal Appeal to re-open an appeal to consider alleged enormous failings by Tasmanian Police in their investigations of the murder charge 12 years ago.

Throughout the long-running saga, there have been constant murmurings and rumblings about the quality and integrity, or otherwise, of the police investigation. This is the first time the behaviour of TasPol has been attacked head on.

It has never been done in court.

The police failings are so gross, the experts say, that immediate acquittal of Sue Neil-Fraser is a distinct possibility. They give chapter and verse over 55 pages which analyse and report on the police investigation.

Their document lodged with the AG is titled: “What TasPol knew and ignored”.

The current Neill-Fraser appeal against conviction for murdering her husband, Bob Chappell, on a yacht moored in Sandy Bay Hobart in January 2009, was heard over three days five months ago. That case is effectively in limbo, awaiting the decision and published reasons of three judges of the appeal court, under judge Helen Wood.

Lay observers consider their ruling is well overdue.

Neill-Fraser has served 12 years of an original 26-year sentence, reduced to 23 years after an earlier appeal a decade ago. She becomes eligible for parole in August 2022.

The two experts who claim that TasPol’s investigation was so flawed that the original conviction should be abandoned are extraordinarily highly qualified.

One, Hugh Selby (photo, left), is a barrister who educates other barristers to Masters degree level. For 33 years he edited ‘Expert Evidence’. Selby has appeared for clients in courts throughout Australia, including in Tasmania and at the High Court, and has trained people to give evidence in court…including police.

The other, Barbara Etter (photo, right), was possibly Australia most-qualified-ever police officer. She holds a masters degree in Law, a bachelor’s degree in Pharmacy/Chemistry, and an MBA in Management as well as a Company Director’s Diploma. In terms of forensic knowledge, she is a Fellow of the Australasian College of Biomedical Scientists.

No longer practising law, she was inaugural CEO of the Integrity Commission of Tasmania, Assistant Commissioner of WA Police for Corruption Prevention and Investigation, and for Professional Development, and is a former Director of the Adelaide-based Australasian Centre for Policing Research. She has an Australian Police Medal for distinguished service and is for former WA Telstra Businesswoman of the Year.

For five years until about 2017 she was Neill-Fraser’s pro bono (“for free”) lawyer.

The two authors claim that police failed to investigate aspects of the case which they knew about, but avoided or ignored. The police failings were enough to corrupt the integrity of the evidence they provided to the Office of the Director of Public Prosecutions.

But, allied to those failings, were a raft of untruths, falsehoods and erroneous suggestions, Selby and Etter say.

The police incompetencies – or worse, active evidence manipulation – included:

  • misleading the jury by claiming that there was blood in the dinghy (evidenced, as but two examples, by judicial comment and a photo exhibit of a Luminol chemical reaction);
  • falsely suggesting that Neill-Fraser could have used winches and rope on the yacht to pull a body from below deck;
  • providing false and misleading evidence about a sighting of Chappell and the dinghy at the yacht by an observer late in the afternoon, at a critical time; and
  • the fiasco of Neill-Fraser’s red jacket, which her supporters say was shown to her in a most unprofessional way, with her response-from-a-distance later used against her.

None of those matters were raised during the March 2021 appeal, meaning Neill-Fraser has never received justice, the pair suggest.

Legally, they quote a formal comment by Ian Callinan in the High Court of Australia, which basically says that a police investigation that was unfair and incompetent would make any verdict unsafe and unsatisfactory. Callinan’s statement was even cited favourably by the Neill-Fraser trial judge, now the Tasmanian chief judge, Alan Blow, in another case four years ago, so it has direct relevance top the Neill-Fraser case.

Selby and Etter say the Neill-Fraser investigation was deeply flawed. “The basic building blocks for an impartial, efficient, and effective investigation are simply missing,” they say.

The claim they have extra evidence (including material obtained under RTI – as the Freedom Of Information process is known in Tasmania – and other sources) available to indicate critical procedural deficiencies by TasPol in:

  • call-taking;
  • door knocking;
  • statement-taking;
  • record-keeping;
  • decision-making;
  • the following up of leads;
  • crime scene management; and
  • the gathering of appropriate intelligence and the use of existing intelligence.

“In the interests of justice and clear adherence to maintaining confidence in the Rule of Law it is imperative that the Attorney-General act immediately to reopen the appeal process currently before the Supreme Court,” Selby and Etter said to AG Archer in early August 2021.

“In such a re-opened appeal, the Crown should be represented by independent counsel, brought in from interstate and with no professional or social backgrounds with the Tasmanian ‘lawyer actors’,” they say.

11 Comments

  1. ‘No compelling evidence of Bob Chappell’s death, let alone a murder’ was legal academic Dr Robert Moles, of Flinders University, conclusion in review of the evidence of this trial. Similarly, former DPP Tim Ellis SC, Crown Prosecutor of SNF, suggested in the Womens Weekly, July 2017, it was not necessary to prove with evidence Bob Chappell was murdered. That is, the Primary Premise of the Crime of Murder, is based on an assumption. It is reasonably doubtful. This contradicts the very foundation of formal logic for a valid inference. That is, the premise of the crime, that Bob Chappell was murdered, to this day, is NOT beyond a reasonable doubt. It’s true value is based on a unproven belief. If p, then q. If a Crime(p) is proven in evidence, only then can one be certain to validly infer the existence of a Perpetrator(q). Consequently, the conviction of SNF is based on a formal fallacy of Affirming the Consequent. That is Guilt cannot be a inferred as a true conclusion. Where is the compelling evidence establishing as a True Fact that Bob Chappell was murdered? Without which, it is irrational to infer with certainty, the TYPE of Crime, WHERE it occurred, How or When. The Legal Process is in direct contradiction to scientific method of hypothetic deductive model of analysis. Whereby any evidence that contradicts the hypothesis renders it null. Consequently the conviction of SNF is the violation of Fundamental Human Rights. It has denied SNF the Presumption of Innocence, the Right to a Fair Trial, it denies the Onus for the Burden of Proof, and it is certainty not recognized in formal logic or the scientific method as a Proof. From the time SNF was charged in 2009, it was an arbitrary detention and in violation of Article 9 of the ICCPR. Because it is irrational to certain about knowing any Perpetrator(q) until the Premise of the Crime(q) is proven with evidence to be beyond a reasonable doubt. There remains a deficit in investigation of this case, to establish the Essential Facts necessary for a valid inference of Guilt. To conform with formal logic, then it would be necessary to prove in evidence the Premise of the Crime, the Perpetrator was in Fact at the Crime, and they acted alone. None of these logical conditions where meet with evidence in the SNF trial. This entire trial is base on assumptions. It was not a proof argument. Consequently the Onus for the Burden of Proof has been rendered null and void by Authority in the State of Tasmania. And Equality in Law has been denied. Democracy is dead.

    Ben Dean
  2. The jury obviously concluded a lot of things, some almost certainly based on the series of wrong evidence presented by the police and the DPP, as revealed in the Etter/Selby series. The jury was only shown the winching “reconstruction” as imagined by police…which was patently wrong, as the commentator admits. That fabricated – by the police – “reconstruction” was also believed by the judge, in his sentencing remarks.
    None of the photos of the yacht as a crime scene can be relied on. Some 22 people, at least, were on the yacht before the first police evidence photos were taken. Some of the photos used in police evidence were taken many hours after the police first boarded, on the next day, or even days later. No reliability can be placed on what appears to be where on the yacht in the police “evidence” photos.
    The police failed to treat the yacht as a crime scene, despite being told at 7.40am on the day the yacht was discoverd sinking, within about an hour of the discovery, by one of the first arriving constables, that there was blood evident.
    And despite the presence of a longish (25cm) cook’s knife in the cockpit: it turned out the only “prints” on the cook’s knife were from the pattern of rubber of the bottom of a police officer’s shoe – so some police poerson walked on a knife at a crime scene. That’s a perfect exammple of how poorly police went about all their evidence preservation and collecting.
    Mr Felix has had a good shot at his viewpoints: THIS CLOSES THE CORRESPONDENCE FROM HIM.

    Bill Rowlings
  3. Agreed. That is the point of questioning why the police and DPP chose to tender Lorraine’s evidence, which was misleading in the extreme, but nevertheless helped to convict Sue Neill-Fraser, wrongly in Civil Liberties Australia’s view. Ed.

    Bill Rowlings
  4. I agree that the winching reconstruction was incorrect. But this doesn’t help Sue because the DPP at the trial did mention the crime scene photograph that showed that a winch on the front mast had a winch handle and a rope that went to the saloon’s skyline hatch. You can see that crime scene photo in the following news article by Andrew Rule, published on 10 March 2018:

    Twists in the tale of Bob Chappell murder mystery

    https://www.heraldsun.com.au/news/andrew-rule-twists-in-the-tale-of-bob-chappell-murder-mystery/news-story/e4b2b0513ae3fb74cdc06d7ae995c682

    Thus, if Selby and Etter wish to report on the winching problem then they ought to have been complete about it by referring to the above crime scene photo of the deck area next to the saloon’s starboard skyline hatch because the rope that was found dangling down that skyline hatch was connected to the rigged winch.

    It is also to be noted that when Sue boarded Four Winds with a detective on the afternoon of 27th at Constitution Dock that, even though she was told not to touch anything but simply to point out anything that was out of order, she touched the above mentioned winch handle and took it out of the said winch. She also took the rope off that winch. Sue thus corrupted the integrity of any potential forensic evidence on that winch hande and the rope (DNA, fingerprints). Had Sue believed that someone else inserted that handle into the winch on the front mast after she left Four Winds the afternoon before then she wouldn’t have touched that winch handle and would probably have asked the cops to check for DNA and fingerprints on that winch handle.

    The jury at Sue’s trial heard the above mentioned actions of Sue and could have concluded that Sue used that winch on the front mast as part of the overall winching set-up to winch out Bob’s body from below the deck, then winch the body across the deck and also use the winch to lower the body just below the water’s surface to then tow it away and dispose some distance away from Four Winds (or to lower the body across the tube of the dinghy and then push it overboard at some distance away from Four Winds).

    Felix
  5. “Small ‘cockle boat’, 5” tender, yellow/white, Not Zodiac, no motor, @ rear of boat” does not refer to a dinghy that was sighted at Four Winds.

    When you read about all sightings of a dinghy, whether they were sighted on or before Australia day, you need to keep in mind the LOCATION OF THE SUN WITH RESPECT TO THE DIRECTION THAT THE EYEWITNESS WAS LOOKING AT because the reflection of sunlight from water’s surface will cause glare that will make it difficult for the eyewitness to see the actual colour of the dinghy. You also need to keep in mind that human memory doesn’t work like a movie camera but that it is highly malleable. I don’t expect lawyers to have taken this into account.

    Peter Lorraine wasn’t looking at Four Winds. His testimony shouldn’t have been included.

    Felix
  6. I think Etter and Selby say that Sue Neill-Fraser could not have used the winches and sheeets (ropes) on the Four Winds in the way described by the police to the jury. Her lack of strength to wind up the sail winches was agred by the two sailors with whom she sailed from Brisbane to Hobart. If she was physically incapable os using the winches in the “police” arrangement, it is puzzling that the judge in sentencing commented that she had. – Bill Rowlings, Ed

    Bill Rowlings
  7. Selby is not representing anyone other than himself and, as co-author, Etter, in the series of analytical reports sent to the AG of Tasmania. Some of the issues in the Sue Neill-Fraser case are involved in the Etter – Legal Professional Board of Tasmania matter, so the Etter/Selby analysis overlaps the two cases.
    In relation to the description of the dinghy, one of the very first identifications was as follows:
    “Small ‘cockle boat’, 5” tender, yellow/white, Not Zodiac, no motor, @ rear of boat”
    That description was not revealed in court even though it was available to the prosecution during the original trial.
    Etter, who worked for more than 5 years on the case pro bono, was not aware of that description until
    January 2020, when its existence was revealed to her as part of the ‘disclosure’ process by the Legal Profession Baord of Tasmania in its action against Etter
    Should you wish to see chapter and verse on the issue of this crucial description of the dinghy – which was never revealed to the jury or Tasmanian and High Court appeal judges, it is contained in SNF Appendrix C – Descriptions of dinghy by Lorraine (etc).
    The times given in the SNF case can also be analysed to show how misleading they eventually became. Little reliance can be put on them.

    Bill Rowlings
  8. “falsely suggesting that Neill-Fraser could have used winches and rope on the yacht to pull a body from below deck;”

    Can Mr Selby and Mrs Etter prove that Neill- Fraser could not have used winches and rope on the yacht to pull a body below the deck? If not then then on what basis can they justify their claim?

    TasPol erred by proposing that a winch on the mizzen mast was used. One of the crime scene photos shows that one of two winches on the main mast was rigged with a winch handle and a rope. The rope from that winch went to the saloon’s starboard skyline hatch and was dangling down the hatch. It is easy to use that winch with the sail boom such that the latter is swung over the hatch and used as a hoist. Crime scene photos also show that there was a block and tackle with rope attached to the relevant hook on the sail boom. A physically weak person would have been able to use the winch in combination with that block and tackle on the sail boom to vertically winch a 65 kg body from the floor of the saloon onto the deck via that starboard skylite hatch.

    Felix
  9. Hugh Selby has a conflict of interest because he is representing Barbara Etter in her forthcoming court battle. See

    EX-CORRUPTION WATCHDOG BOSS’S SUPREME COURT BATTLE

    https://www.themercury.com.au/news/hobart-south/excorruption-watchdog-boss-barbara-etter-headed-for-supreme-court-battle-later-this-year/news-story/5da7c2312094e4f49d09554503ae48c5

    As for some of Etter’s and Selby’s comments about how Mr Coates addressed the issue of the “grey” dinghy. I suggest that they go out to a river or an ocean and photograph white dinghies and white boats from different vantage points to see whether they can disprove Mr Coates’ statement that a white dinghy can look grey from distance.

    Those who read the trial transcript would have seen that Sue’s white dinghy was described in a variety of ways by different people. The rowing coach sent an email to the members of the rowing club about the dinghy that he saw in the morning of 27th next to the rowing shed. That was Sue’s dinghy but the rowing coach referred to it as being “grey”.

    It was also noted in the Trial Transcript that Ms Vass left the boarding house (Mara House) at 3:50 pm. Mr Conde and his cousins saw the “grey” dinghy at 3:55.

    Mara House is about 7km from the Yacht Club in Sandy Bay. It would therefore have been practically impossible for Meaghan to have gotten from Mara House to the Yacht Club and then onto a dinghy so as to board Four Winds in 5 minutes! That is, Meghan did not board Four Winds via the “grey” dinghy that was spotted at portside of Four Winds at 3:55pm and at around 5pm. Sue Neil-Fraser said in her final interview that she may have stayed on Four Winds longer than she originally thought. It is thus highly likely that Sue was on Four Winds at least until 5pm (if not until about 8pm) and that her dinghy appeared to the eyewitness to look grey because of glare from sunlight reflected from the water’s surface.

    Felix

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