Image for Sue Neill-Fraser and the Australian Women’s Weekly ...

• Dear Editor,

Apparently an article in the Australian Women’s Weekly is soon to be published concerning Ms Neill- Fraser. I do not know how balanced it might be.

I was asked to comment and I enclose below an email string between the author and me; it might be interesting to see how much actually makes it to the article.

Regards,

Tim Ellis

The emails in order ...

• From: Tim Ellis
Sent: Tuesday, 28 April 2015 10:17 AM
To: Horsburgh, Susan
Subject: Neill- Fraser

Dear Mr Horsburgh,

My former PA has passed on your request for contact. I have not commented publicly on this matter before as I was a prosecutor, but will consider some limited contribution, perhaps just background correction if given the opportunity. If you care to tell me via email what you would like consideration of comment on, I will reply. I trust you are aware the trial transcript is available on the Tasmanian Times Website ( it does not contain interviews of Neill-Fraser by Police and the body of some agreed statements and facts however ), as is a link to the Court of Criminal Appeal judgment, also available on Auslii website. Both are necessary checks on the Neill-Fraser supporters’ claims.

Yours faithfully,

Tim Ellis

• On Mon, May 4, 2015 at 10:08 PM, Horsburgh, Susan wrote:

Dear Mr Ellis,

As you know, Neill-Fraser’s supporters have many concerns about her case, and a balanced article requires the opposing view. Could you please comment on the questions below?

1. What is your reaction to news that Sue Neill-Fraser will push to have her case returned to court via the proposed right-to-appeal legislation?

2. What, in your opinion, was the most damning evidence against her?

3. What was your wrench theory based on?

4. You suggested in your opening address that there were “some indications of blood” in the dinghy. Was that a reasonable statement when confirmatory tests for blood were negative?

5. In your closing address you mentioned Neill-Fraser’s “involvement with the disappearing young Mr O’Day”. What was that based on?

6. Why was Phillip Triffett put up as a credible witness considering his history of death threats to Neill-Fraser and Bob Chappell years earlier? Why wasn’t the court told this?

7. Do you think the homeless people on the foreshore the night of Bob Chappell’s disappearance were properly investigated?

8. In your opinion, is it possible that Neill-Fraser is innocent?

If you could please get back to me by the end of tomorrow (May 5), it would be most appreciated.

Yours sincerely,

Susan Horsburgh

• On Tue, May 5, 2015 at 12:15 PM, Tim Ellis wrote:

Dear Ms Horsburgh,

In answer to your questions;

1.I will be interested to see in full the “fresh and compelling evidence” to be produced if the legislation proceeds. There is said to be such evidence http://www.abc.net.au/news/2015-04-01/new-laws-could-allow-convicted-murderer-sue-neill-fraser-furthe/6363452  by Mrs Etter, and a report from Victorian Police Forensic Service Department is often mentioned as being that (eg by the film critic writing in The Australian of the 25th March 2015) but so far as I am aware only excerpts from it have been released publicly, not the full report, which is somewhat odd. Perhaps you will be given a full and unedited copy, without limitation of its use, so as a responsible and ethical journalist you will be able to validate that what is claimed for it is indeed the case. 

2. In a circumstantial case each juror is entitled to give such weight and importance to each circumstance as they believe it is entitled. For example, one juror might think it most important that Ms Neill-Fraser says she tied up the vessel’s tender at the Royal Hobart Yacht Club but after Mr Chappell’s disappearance it was found not tied up, but with its rope in the tender, on the beach where it was often launched ( and indeed where it had been launched by Mr Chappell and Ms Neill-Fraser on the morning before the discovery of Mr Chappell’s disappearance ) that being to where it could not have drifted had it simply become loose from its moorings.That juror might think that the chances of someone unconnected to the Four Winds stealing that very tender from the Yacht Club and using it on the very night Mr Chappell disappeared could not possibly be a coincidence and coupled with other evidence was the most important for that juror.  Other jurors might think the fact that Ms Neill-Fraser changed her story of where she was on the afternoon and evening previously, usually in response to being confronted with further evidence, to be of more importance ( I trust you are aware that originally she said she left Mr Chappell on board following an argument in the afternoon, tied up the tender and then drove to Bunnings where she stayed browsing until it was starting to get dark, then went home where she stayed all night; when told Bunnings closed early that evening she said she might not have been there for the “hours” she had claimed but repeated she did not leave home after returning from Bunnings; later still when told that security cameras failed to show her at Bunnings at all she said she may have been mistaken about being there; later when told a car similar to hers had been photographed in Sandy Bay that evening she told some people, but not initially the Police, that she drove down to Marrieville Esplanade in the night, looked out to where the Four Winds was moored, and drove home. In a later interview with Police she said she tied up the tender in the afternoon and walked home to West Hobart, she said she could not remember where she had parked, or whether it was daylight or dark. She said she walked down to the car later that evening, realised she didn’t have her keys, walked back home and back again after having gone down to the beach and seen homeless persons around a fire near the sheds, but it was too dark to see the yacht. She then drove home, she said. ) Other jurors might have found her inability to explain why a call was made from her home - she being the only person there - at 3.08am on the 27th January ( the day the Four Winds was found sinking ) to *10#, the function of such a call being to retrieve the number of the last unanswered call to the landline to be the most damning evidence, coupled of course with other evidence. Other jurors may have considered the unchallenged expert evidence that only someone with intimate knowledge of the Four Winds ( which Ms Neill-Fraser had ) would have known the location of the seacock under the flooring in the for’ard part of the yacht, and which served no apparent purpose, which had been opened to let the seawater in as well as cutting a pipe to the same end. There was a wealth of evidence any or all of which might have reasonably been considered by all or any of the jurors to have been the most damning. It is their opinion as those who have heard and seen all the evidence and who are charged with making the decision which is important, not mine. A balanced article of the kind you intend to write would reflect that wealth of evidence, as I trust you will.

3. I am disturbed that you use the phrase “your wrench theory “. I never advanced any such “theory”. I will refer you to the transcript, the availability of which I have previously alerted you to, but first I point out that it was never the Crown case and it was not and is not essential to the valid conviction of Ms Neill-Fraser that the prosecution produce a murder weapon or prove a manner of death. The position in this respect is no different to the conviction of Bradley Murdoch for the murder of Peter Falconio,  a wholly circumstantial case with no weapon or manner of death claimed or proven, and a case on which I believe the Womens Weekly has run articles but never questioned the validity of the conviction.

The transcript is, I have advised in earlier correspondence, at the Tasmanian Times website:

http://tasmaniantimes.com/index.php?/article/the-sue-neill-fraser-trial-transcript-/

and the Court of Criminal Appeal decision is here:

http://www.austlii.edu.au/au/cases/tas/TASCCA/2012/2.html.

I am using page numbers from the transcript:

At 1197 Ms Neill-Fraser raised in cross-examination that wrenches had gone missing from the yacht and claimed that was while it was at Goodwood, well after Mr Chappell’s disappearance. She had not previously told Police that.

At 1297 , I suggested wrenches were on her mind throughout the trial “because it was a wrench wasn’t it, or a similar sort of tool with which you struck Mr Chappell from behind and killed him? “.

That was all that was put in cross-examination: hardly a ” wrench theory”.

In address at 1392 and 1407 I linked the claim she had made with missing wrenches with her description of what was happening between her and Mr Chappell on what on her own version was the last time she saw him alive - he was working on an electrical panel and “giving her the usual harangue” and “snapping at me like a crocodile “, they had a row, she was working on the washing machine and she was “in the way of the tools” and they were “her tools too”.

There was no “wrench theory” formulated or advanced. From the opening I told the jury the Crown did not set out to prove exactly how or with what Mr Chappell was killed, but that he was killed by Ms Neill-Fraser. It was no part of the jury’s function to make a finding that a wrench or any other particular weapon was used. At 1392-3 I suggested that the fact that the body was missing pointed to Ms Neil-Fraser rather than a stranger ( as the jury knew that where Mr Chappell was working a stranger would have to come down a ladder directly in front of him to reach him; carpet tiles from that exact spot were proved to have been removed and, like the body, never found ). The complete passage is:

“But here comes the – here
is perhaps the significance of there being no body found. Why, if
this is a complete stranger to Mr Chappell and a complete stranger to
the boat, would there be no body left on board? That doesn’t make
sense, does it. But if in fact it was someone who was closely
connected to the boat, closely connected to Mr Chappell, and who
would be able to be behind him without raising his attention because
they’re known to be in that space, where there’s only one way in.
She’s walking backwards and forwards and delivers blow – a blow or
blows, or maybe stabs him with a screwdriver, I don’t know, he
doesn’t look round, and so the body doesn’t have any marks of what
you’d expect if someone had come down there, a stranger, intent on
doing him harm, the body I suggest would have marks consistent only
with being delivered by someone who he knew to be there, who he
knew and expected to be behind him.”

Please note the phrase “a blow or blows, or maybe stabs him with a screwdriver, I don’t know”.

At 1392 and twice, briefly at 1407 are the only mention I made of wrenches in closing and I have given you the only reference I made in the cross-examination.

I trust you can see that the phrase you have chosen to use,  “your wrench theory” is quite wrong.

I have a prior engagement now and I am becoming apprehensive that the length of my eventual reply will prove too much for Gmail. I will send this now and the rest if I am able to complete it in the disappointingly short time you have given me to do so.

Your sincerely,

Tim Ellis

• On Tue, May 5, 2015 at 5:09 PM, Tim Ellis wrote:

Dear Ms Horsburgh,

Before I resume, might I refer you to Para 148 of the Court of Criminal Appeal decision as to the phrase “your wrench theory”?

To resume :

4. To have left it there as you have ” quoted ”  might not have been a reasonable statement , however the full statement at 71, 15-30 of the transcript is:

“But the tender itself was also subjected to a screening test for blood
called luminol, and what happens with luminol is you put it – you put
it on objects where there might have been blood and turn off the
lights and it gets lum – it goes luminous in the presence of blood, and
so that reacted quite strongly, the tender and the inside of the tender
for the presence of blood, and swabs taken from the tender were
found to match, with a high degree of probability, Mr Chappell’s
DNA. But on the other hand another screening agent for blood taken
on that tender showed negative and one of the forensic scientists
looked under the microscope to try and find some – what they look
for is red/brown indications of blood and couldn’t find any, so some
indications of blood, his DNA, but others – others, no.”

The evidence was presented the same way - completely honestly and openly. These tests had been done, with that result. In these CSI days the jury expects to be told in full of all tests and examinations carried out, and this jury was. Never did I suggest there was proven to have been blood in the tender. It was never claimed on appeal to the Court of Criminal Appeal or for Special Leave to the High Court that I did nor that I could be understood to have done so, nor was it claimed there or at trial that the evidence was objectionable. Your selection of one phrase , out of context and without acknowledging that the context gives a different meaning is exactly what the Neill-Fraser supporters have been doing, and I must say I wonder if you have checked the primary sources of their claims before referring them to me.

The whole question of whether there was blood in the tender is not one of crucial relevance to conviction in any event. The evidence necessary to the conviction of Ms Neill-Fraser might be said to fall broadly into two parts - that proving Mr Chappell is dead, having been murdered being part 1 and that proving Ms Neill-Fraser murdered him being part 2. To prove how the body was disposed of is no part of the necessary case of murder; blood in the tender might have arisen if the body was placed there, not wrapped say in a spare sail or other material, and bled or blood was transferred.  Those events if they occurred are only events after the murder and therefore not directly relevant or necessary to a valid conviction of Ms Neill-Fraser. It was not necessary nor was it part of the Crown case to prove how or where the body was disposed of. The absence of Mr Chappell’s body from the immediate vicinity of the yacht’s mooring was a fact proven by evidence of searching and of course it was necessary to present to the jury evidence of the searches made in that respect as part of the evidence that Mr Chappell was dead. How the body came to be somewhere else and where that somewhere else was is not something the Crown was obliged or attempted to prove.

5. Again, I refer you to the transcript. The ONLY reference is at 1394, a fleeting reference but what it picked up on is something Ms Neill-Fraser had herself volunteered in a previous interview or statutory declaration to Police ( not contained in the transcript but shown to and given to the jury. I am at a disadvantage not presently having access to those documents, but I am sure a request under the Right to Information Act will give you the exact context and reference if you are interested in such accuracy. If Ms Etter is co operating with you, she will have it too ) namely that she had been involved in some way as a peripheral witness in the police investigation of the disappearance of a young man named O’Day, son of a well known private investigator, last seen in the vicinity of the Tasman Bridge. It was thought likely but not certain he had suicided but no-one saw him do so and his body was never recovered. The jury could not conceivably have taken my fleeting comment in any other way but that she knew from that involvement that doubt can remain where a body is not recovered. There was no other mention of the matter at trial, and it could be understood in no other way. It was clearly taken that way too by Ms Neill-Fraser and her defence team, as there was no objection or request for clarification or correction at trial. Her very experienced legal team on appeal made no point of this as they knew there was none to be made.  Again, this is a case of her supporters trawling the transcript for phrases to be taken out of context.

6. Phillip Triffett was put up as a witness but that he had previously some traffic convictions and a possession of property charge ( although not conviction for that ) which might adversely reflect on his credit was disclosed to defence and the jury. When it emerged after he gave his evidence that in one of his police involvements he inquired as to possible advantage to himself in the evidence he could give, a fact unknown to me previously, I had additional statements of Police who had been involved taken and disclosed to defence and recalled him so he could be further cross-examined.

Your question presumes that I had reliable admissible evidence or there was evidence other than what Ms Neill-Fraser had asserted in interview ( the exact detail of which I do not now recall except that it was exceedingly bitter and played to the jury - see transcript 1388/35 ) after she learned Mr Triffett had spoken to Police about her. I did not have such evidence and no such evidence was ever supplied to me. Mr Triffett’s former partner had made some kind of statement which may have touched on this, I do not recall, but she was unable to be called and unable to be a reliable witness for the medical reasons given to the jury in certificate form at 563 of the transcript. 

Mr Triffett was called as a witness and it was not suggested to him by Ms Neill-Fraser’s lawyer, a Senior Counsel, that he made a threat to kill her or Mr Chappell. Your question offensively suggests I was aware of such information and hid it or didn’t disclose it when the fact is Ms Neill-Fraser by her lawyers was perfectly free to put such allegations to him and to call evidence in support but did neither.

7. The question of homeless people on the foreshore never arose for investigation until more than two weeks after Mr Chappell’s disappearance when it was mentioned for the first time by Ms Neill-Fraser in the course of admitting to a journalist that which she had previously and repeatedly dishonestly denied to police, namely that she went to the foreshore that evening.

A witness who had been there, Mr Hughes, said he was at the rowing sheds, where Ms Neill-Fraser asserted she saw “homeless people” around a fire, for twenty minutes on the same night and around the same time and saw no-one (379/9) except a female figure in an inflatable dinghy with a motor come from the Royal Yacht Club towards where the Four Seasons was moored.
 
No witness on the scene reported signs of a recent fire at the foreshore the next day.

Police made all proper, available and reasonable enquires as to the location of the “homeless people” only Ms Neill-Fraser belatedly claimed to have seen. As you ask the question I wonder what more you say they could have done but did not do.

8. I believe Ms Neill-Fraser was properly convicted on the evidence at trial, and her appeal was properly and unanimously rejected and her application for Special Leave to Appeal to the High Court was properly rejected.

I trust this has been of assistance in presenting a “balanced article”; might I suggest that balance requires an understanding of the whole of the evidence against Ms Neill-Fraser?

Your sincerely ,

T J Ellis S.C.