Australian Books


22 September 2018

9:00 AM

22 September 2018

9:00 AM

‘There was no body. There was no wrench. There was no evidence.’ The first two statements are undoubtedly true. Lawyers will dispute the third.

Murder by the Prosecution is not, as its author, film critic Andrew L. Urban declares, a legal reference work but a journalist’s record.

It is a call for official review of the case of Tasmanian Sue Neill-Fraser, who is currently serving a gaol sentence for the murder of her partner, Robert Chappell, on Australia Day, 2009. Neill-Fraser, then 54, left Mr Chappell doing maintenance work on their yacht, the Four Winds, which was moored in Sandy Bay, Hobart. The next day the boat was found to have been sabotaged and was sinking. Mr Chappell was no longer aboard.

A murder case with a surfeit of unequivocal evidence rarely involves a criminal trial. Instead, there is a plea of guilty to murder or, increasingly, a claim that a manslaughter plea ought be accepted by the prosecuting authorities on the grounds of mental impairment. When a criminal trial takes place, there are powerful arguments tending for, and against, guilt. Only when a jury can be satisfied to the high criminal standard of beyond reasonable doubt can the accused be found guilty.

Urban makes a powerful case that grandmother Neill-Fraser, who had run a successful horse-riding school and been involved in property development, was wrongly accused and prosecuted for the murder of Chappell, a radiation physicist, her partner of 18 years.

He describes as ‘speculation’ the scenario put to the jury by the prosecutor, then Director of Public Prosecutions, Tim Ellis SC (who himself was later convicted of negligent driving causing death) that Neill-Fraser had attacked Chappell with a wrench (which was never found) and weighted his body with a fire extinguisher and winched it onto a dinghy and overboard. Urban notes that the prosecutor’s argument to the jury about blood having been found in the dinghy was demonstrably incorrect and he explores the intriguing presence, on the yacht, of the DNA of a homeless teenage girl who steadfastly denied ever having been aboard. The prosecution accounted for this as trace DNA brought on to the yacht on one of the crime scene investigator’s shoes.

Urban compiles press reports on the Neill-Fraser case and threads of online comments upon them to show the stark polarisation between the ‘guilty’ and ‘not guilty’ camps, particularly in Tasmania. Can it be that, particularly in such a small jurisdiction, individuals find it difficult to cast aside their prejudices about the lifestyle or ‘tribe’ of the person accused and come to a just view of the sufficiency of the evidence against them?

Urban is critical of the sneering tone and ‘tunnel vision’ of one investigative journalist who dubbed those advocating a review of this case ‘noisy ratbags and conspiracy theorists’.

Those who quite vociferously support the soundness of Neill-Fraser’s conviction point to significant strands in the circumstantial evidence rope such as lies told by her about her movements at the time Chappell disappeared and her phone call to the ‘callback’ service at 3.08 am that morning to check whether anyone had called in. A witness who gave evidence that Neill-Fraser had, years before, enquired about having Chappell killed, appears to have been discredited since the trial in 2010.

Having been ‘knocked sideways’ by his research into Neill-Fraser’s plight, and having come to be satisfied of her innocence, Urban embarks on analysis of other examples of miscarriage of justice in Australia. The final chapters examine a range of murder cases from those blighted by the evidence of an incompetent forensic scientist to those where, although appellate courts have acquitted, it could hardly be said that the jury’s verdict constituted a miscarriage of justice.

When a jury finds an accused guilty, he or she has a right of appeal. When a jury’s verdict is not guilty, there can be no appeal. Urban recognises that the presumption of innocence and the exacting standard of proof in criminal cases mean that, if courts get it wrong, it is far more likely that the truly guilty go free than the truly innocent get locked up.

However his penultimate chapter, Action Points, indicates that he has isolated a range of shortcomings in the performance of police, prosecutors and judges.

In a criminal justice system which has been strengthened immeasurably by the clear separation between investigating and prosecuting authorities, it is not suggested why a prosecutor would be interested in going to such great and improper lengths to prosecute an innocent person and thereby leave the real culprit at liberty. It seems he has neglected to encourage defence counsel, who come in for very little scrutiny in this book, to receive training to avoid falling for the thimble and pea.

Murder by the Prosecution is engrossing and troubling. Back and forth, the reader is propelled, much as a jury is during the ‘test match’ that a murder trial resembles.

The later stand-alone chapters on other murder trials which have been found to have been unjust stand as sentinels fortifying Urban’s impassioned premise that Susan Neill-Fraser is serving a 23 year sentence for a murder she did not commit. The ethical prosecutor works not for a particular verdict, but for justice to be done. This must be the hope for Susan Neill-Fraser.

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