If Sue Neill-Fraser is innocent, as many experts believe, who did kill Bob Chappell? How can you overturn the 23-year sentence for a murder she didn’t commit?

 Who killed Bob Chappell?

Item 26, Latex Glove…why no appeal?

By a special correspondent*

Sue Neill-Fraser is serving 23 years for the murder of her partner/husband of 18 years, Bob Chappell, on board their newly- and jointly-purchased yacht Four Winds on the Derwent River off Sandy Bay, Hobart, on the night of Australia Day, 26 January 2009. In prison for more than four years, she has always protested her innocence. Civil Liberties Australia believes her conviction is a monumental miscarriage of justice, which the Tasmanian justice system is morally obliged to correct as soon as possible.

In the transcript of the trial of Sue Neill-Fraser, reference is made to “some latex gloves”, “the box of latex gloves” and “item 26, latex glove on the top stove galley”. Latex gloves are mentioned at least eight times or, on one occasion, a particular glove is referred to as “that glove”.

On 29 September 2010, under cross-examination by Sue’s counsel, Mr Gunson, Carl Grosser, a forensic scientist with Forensic Science Services Tasmania, was asked if “at item 26, latex glove on the top stove galley, is that the same one you were referring to in 97 where there was a box of gloves, or a separate item?” Mr Grosser replied, “It was a separate item”. He could not make any inference whether or not “that glove might have come from that box”.

On 7 October 2010, Peter John Maczi, a fingerprint specialist employed by Tasmania Police, also gave evidence that he had conducted an examination of a number of items on the yacht, Four Winds, that included “some latex gloves” amongst an outboard motor, foot pump, fuel can, a pair of oars and wooden stairs. In relation to fingerprints, he believed “one was Mr Casson, one was a Mr Stevenson, one was a Mr Chappell and one was … Ms Neill-Fraser.” Casson and Stevenson were the two sailors who had helped sail the yacht to Hobart. When queried by the prosecution, “When you say Mr Chappell that was Tim Chappell, was it? Mr Maczi confirmed it was, Tim Chappell, Bob Chappell’s son. Surprisingly, he didn’t find any fingerprints that matched Ms Neill-Fraser, but he explained it was not unusual that he had not found her fingerprints as “a fingerprint’s made up of about ninety eight to ninety nine percent water and some people perspire more than others, some people leave better fingerprint impression than others.”

Although some of the photographs taken of the interior of the yacht showed latex gloves, some were used, but not worn, to stop water leaking into the boat from the cut pipes. Little emphasis was placed on the gloves during the trial, being in the  “background” to the more contentious aspects of the case, until the Director of Public Prosecutions, Mr Ellis, cross-examined Sue. Having described how she may have killed her partner by coming up from behind with “one of the tools – or some other implement …  And that left injuries behind him, didn’t it, to the back, which could only have been done by someone he knew was there and therefore would not look – have looked around to? … You, having done that, sought to cover up what you had done, you got out some latex gloves and left them on the stove top and put them on – and put the box on the stove top and put out the latex gloves to cover up what you had done?”

Although Sue had already stated, “Mr Ellis, I have no idea what happened on that boat” and then responded “No, absolutely not” and “This is not true”, “This is just not true”, the prosecutor, in his closing address, again referred to the gloves:

“Someone who sought with a pair of latex gloves which she had forgotten that she’d left on the stove top to clear up as best she could and perhaps abandon the idea…”

There was no mention in the trial that the only DNA in a latex glove was Tim Chappell’s, not Sue’s. Nor was the jury told that, prior to the arrival of Bob Chappell’s sister, Caroline Anne Sanchez, Sue had made an effort to clean the yacht with bleach for her arrival. This is not surprising remembering that, on setting out for home, Bob had a severe nosebleed and was hospitalised on the Gold Coast, completing his journey by air.

At the Appeal in the Supreme Court in Hobart on 10 August 2011, I was sitting in the front seat of the court. Before the appeal commenced, the prosecutor, Mr Ellis, spoke to Sue’s new barrister, Mr Michael Croucher, in front of me and I heard him say words to the effect, “You can drop the ground of appeal of the latex gloves as I can answer that simply, the police told Tim to put on rubber gloves.”[1]

Ground 5:   The learned trial judge erred:

a)  in failing to instruct the jury that they could not accept the hypotheses, raised by the prosecutor in cross-examination of the appellant and in his final address, to the effect that the appellant had used a wrench to kill Mr Chappell and that she had employed yellow rubber gloves found in the galley of the yacht;

Paragraph 151 of the Court of Criminal Appeal transcript sums it up well when it states,

Latex gloves were found in the yacht’s galley. When cross-examining the appellant, counsel for the Crown put to her that having killed the deceased, she sought to cover up what she had done and had got out some latex gloves and left them on the stove top. She responded: “Absolutely not”. Near the end of his closing address to the jury, counsel suggested that she had used the latex gloves to clear up as best she could and had forgotten that she left them on the stove top. Counsel for the Crown now accepts that his mention of the gloves in those ways was inappropriate because there was evidence that a DNA profile found on the glove matched the profile of Timothy Chappell and not of the appellant.

The newspaper, Examiner, reported this on 11 August 2011 under the headline, “Mistake admitted in murder appeal” when Rosemary Bolger wrote,

Tasmania’s Director of Public Prosecutions has admitted that he made a mistake suggesting a Hobart woman murdered her husband using a wrench while wearing rubber gloves but he told the Supreme Court in Hobart the error was not grounds for an appeal……

….. In the Supreme Court in Hobart yesterday, Neill-Fraser’s barrister, Michael Croucher, argued the judge should have directed the jury not to accept the prosecution’s theory that she used a wrench to kill Mr Chappell while wearing yellow rubber gloves found on board the boat.                                                                                                                                                               

Director of Public Prosecutions Tim Ellis, SC, admitted he made a mistake because DNA found on the gloves actually belonged to her (sic) son who visited the yacht after Mr Chappell’s disappearance and wore the gloves at the request of the police.

But he said it was “a throwaway line” among a volume of evidence against Neill-Fraser.

Note the error in this article where I have written (sic): Tim Chappell is not Sue’s son, he is Bob Chappell’s son.                                                                                                                                

I can only postulate how this mistake in relation to the DNA surfaced: perhaps Mr Croucher went through the forensic reports with a fine tooth-comb! Certainly, the jury were unaware of this and would have been left with the decided impression that Sue used the glove/s to clean up her crime scene.

In Paragraph 152, of the same transcript of the appeal, the Chief Justice rules.

       No error of law was made by the learned judge in the ways asserted by this ground of appeal. His Honour was not obliged to direct the jury that they could not find that a wrench was used by the appellant to kill the deceased. Nor was his Honour obliged to direct the jury that they could not find that she used the gloves that were found in the galley. His Honour made it clear to the jury that the use of the wrench was merely a theory and there was no evidence that one was used. The references by counsel for the Crown to the gloves were insignificant in the overall context of the trial, the cross-examination of the appellant, and counsel’s closing address. The trial judge was not obliged to comment on everything that was raised in cross-examination or argument by counsel.

I would argue that what Mr Ellis calls “a throwaway line” is his own “throwaway line” among a volume of hypothetical propositions, for example, ‘the wrench’ that didn’t exist was mentioned in court 29 times, including being endorsed by the judge in sentencing as “likely”.

Without knowing how, when or why, Tim Chappell’s DNA got into a latex glove, this was NOT Sue’s DNA, as the jury were led to believe. In a totally circumstantial trial without a body, without a witness, without a confession and without a wrench, I fail to see how:

 ‘The references by counsel for the Crown to the gloves were insignificant in the overall context of the trial…’. as the Chief Justice said.

I would argue that it was a powerful and inaccurate premise and completely prejudicial to Sue’s case. It was wrong and it was damning.

NOTE: *  CLA’s special correspondent is a respected retired employee of the Department of Justice in Tasmania who observed the Sue Neill-Fraser trial and full bench appeal closely from the gallery.