Supporters of Sue-Neill Fraser ‘peddle untruths about the trial’

Examples put forward by Sue Neill-Fraser supporters as evidence her conviction were flawed do not stand up to scrutiny, argues Tim Ellis SC — the man who ran the murder trial.

THE latest contribution by Lara Giddings (Talking Point, September 15) compels me, reluctantly, to respond.

I conducted the trial of Susan Neill-Fraser, I responded to the first appeal to the Court of Criminal Appeal and to the application for Special Leave to Appeal to the High Court. I did not see Ms Giddings at any of those events, and what she claims to be the “material before me” which makes her “believe” Sue Neill-Fraser to be innocent has not been stated.

It is presumably the same misinformation that the convicted murderer’s supporters have peddled relentlessly, complete with regular personal attacks on anyone or any institution involved in the investigation or litigation who doesn’t share or suit their view.

Her “belief” is of far less consequence than that of all 12 members of the trial jury, a belief in guilt beyond reasonable doubt after a trial that has not been shown in any proper forum to have been legally flawed.

In her article, Ms Giddings gives only one example, that of the evidence of Peter Lorraine.

She suggests that Mr Lorraine gave different versions of the description of the dinghy he sighted to police and that the defence were only given his description of a small tender dinghy of inflatable or solid construction.

Tim Ellis, Tasmania's Director of Public Prosecutions

She says the defence were not told he once gave a version of a small yellow dinghy and she says “prosecution argued it was the Four Winds dinghy, that is, a blue and white trimmed inflatable Zodiac with a motor”, and “ defence accepted Lorraine’s written statement of fact”. This is untrue. If Ms Giddings wishes to dispute that, she should give the exact passages from the transcript.

The transcript is easily available.

Further, far from Ms Giddings’ claim that the description given by Mr Lorraine of a yellow un-motored dinghy was hidden from defence, it was in fact given in evidence at the trial and therefore made known not only to defence but also to the jury.

I quote from the trial judge’s summing up to the jury (at page 1525, numbers in the extract are his references to transcript pages),

“ (Mr Lorraine) said at 503 that he saw a very small dinghy, at 510 that it was somewhat dark and very small, at 511 he said he couldn’t see an outboard. Sergeant Conroy gave evidence at page 914 that he’d spoken to Mr Lorraine at the time of the initial investigation and that Mr Lorraine had said things to him when he happened to run into him that didn’t find their way into Mr Lorraine’s statement and that he said to him that the dinghy he saw was whitish cream to yellow.”

Ms Giddings’ sole “example” is thus untrue and misleading.

Refuting every Neill-Fraser’s supporters’ claim is like playing whack-a-mole.

Just last week one wrote in another newspaper that Neill-Fraser’s DNA was “not found on the yacht” – a complete untruth.

This is a new addition to the hardy series of untruths and half-truths which are constantly repeated in order to gain credence by their very repetition.

To give but one example, in the so called “Etter /Selby papers” much time and space is devoted to seeking to prove that the prosecution’s case that there was blood in the dinghy was wrong and that matters contrary to that proposition were hidden.

It was never the prosecution case that there was blood in the dinghy. I never said the jury could so find at any stage of the trial, and no submission invited them to so find.

Ms Etter knows this well. Ms Etter had complained to the Legal Profession Board (LPB) that I falsely denied after the trial that I had told the jury that there had been found to be blood in the dinghy.

the DPP's Tim Ellis at estimates hearing in the Long Room at Parliament House on 31/5/12

That complaint was examined by the LPB who concluded that there had been no presentation of a blood in the dinghy case and no assertion of it by me and Ms Etter’s complaint was summarily dismissed.

I wonder if Michael Gaffney MLC was apprised of this before he used parliamentary privilege to push the same barrow?

I wonder if he, or Ms Giddings or indeed anyone who, like them, was not at the trial and did not hear all the evidence, have actually read the Court of Criminal Appeal decision which sets out clearly and very readably the case which had been presented at trial?

It is at http://classic.austlii.edu.au/au/cases/tas/TASCCA/2012/2.html, and is far more authoritative reading than the so-called Etter/Selby papers, and should be considered to be essential reading for anyone wishing to be properly informed.

Ms Giddings concludes with the Neill-Fraser supporters’ catechism, “it was a circumstantial case, there was no body, no weapon and no witness to the crime”.

She knows that none of these things, together or alone, mean the conviction is unsafe at law.

None of them, together or alone, even diminishes the safety of the conviction. So why say it?

Tim Ellis SC was the then Director of Public Prosecutions who prosecuted the Sue Neill-Fraser murder trial.

Why Sue’s case demands more scrutiny - Lara Giddings’ Talking Point - September 15

THE release of the Etter/ Selby papers has stirred a hornet’s nest. Extraordinary public statements have been made defending the indefensible surrounding the Sue Neill-Fraser murder case.

I say this because rather than challenge the material collected and presented in those papers, we have seen various parties in the media and on social media disparage the work of Barbara Etter, a past recipient of the Australian Police Medal, and Hugh Selby, barrister, as nothing more than “rumour, innuendo and gossip” (Colin Riley, Talking Point September 6).

Susan Blyth Neill-Fraser, jailed for murdering her de-facto husband.

On social media, people from within the wider police service have entered the debate calling Michael Gaffney’s statement to parliament “ridiculous” and “misinformation”. In fact, a person went on to say, “just don’t believe everything you read or hear, especially from crackpots that just want their name to be known”.

As one of those “crackpots”, let me assure you that this is not about needing my name to be known! This is about a woman who has spent 12 years in prison for a crime I believe, based on the material before me, she did not commit.

File photo,

The Etter/ Selby papers raise a number of issues upon which the public can make their own assessment.

I encourage you to read the documents, which are based on detailed research and careful analysis, which has uncovered material not previously disclosed or considered by the courts.

An example is the evidence of Peter Lorraine, an important witness in the trial. He rang police on January 27, 2009 and said he had seen on the day before “a very small yellow dinghy attached astern”, possibly at the Four Winds yacht.

Fourteen minutes after the first call, police recorded in handwritten notes, Mr Lorraine had seen a 5-foot yellow/white cockle boat, not a Zodiac (inflatable) and no motor.

File photo

The typed police investigation log dropped these critical details simply recording a “small tender dinghy tied to the rear of yacht”. Four days later, Mr Lorraine said in a written statement he had seen a small tender of inflatable or solid construction. The prosecution argued it was the Four Winds dinghy, that is, a blue and white trimmed inflatable Zodiac with a motor.

Defence only had the misleading typed police investigation log and the written statement. Police attempted to remind the ODPP mid trial via email about the discrepancies, but this critical difference in Lorraine’s evidence was not disclosed to defence. Instead, defence accepted Lorraine’s written statement as fact.

Unfortunately, the facts as presented by Mr Riley in his article “The real facts behind police investigation into Sue Neill-Fraser case” are not entirely accurate:

A CORONER’S investigation did not review all the evidence. To the contrary, the Coroner stated he did not read documents that were marked “Highly Confidential” or similar, that is, a 60-page document outlining alleged deficiencies in the police investigation by Barbara Etter, Sue’s solicitor at the time. Moreover, the Coroner rightly acknowledged the significant “fetters” placed upon him by the Coroners Act, which meant he could not make any finding inconsistent with the result of the criminal proceedings.

Bob Chappell on holiday in 2008. Picture: Supplied

THE investigation has not been “scrutinised inside and out by the courts, including the High Court”. The High Court rejected the special leave to appeal application, which was based on a legal point (such as the test used to refuse the recall of Meaghan Vass). There was no appeal heard in the High Court.

IT is inaccurate to say that those making the “allegations” lack an understanding of “investigative processes, rules of evidence and court process”. Ms Etter is a former Assistant Commissioner of Police and lawyer (holding an Honours Law degree and a Masters) and Mr Selby is an author of various works on expert evidence, advocacy, appellate practice, coronial practice, civil pleading, policing, and current legal issues.

IT is also inaccurate to state that the content is not fresh. The issues raised about the police investigation, and instances of nondisclosure, have not been raised with or considered by the courts. Neither are they currently before the Appeal Court.

Hobart CIB Detective-Inspector Peter Powell

Justice systems across the world can get it wrong – and do get it wrong. You only have to look at the miscarriages of justice in Australia, such as, Chamberlain and Mallard, to see no system is perfect.

We just want to see truth and justice upheld for a woman who has been found guilty of a crime in an entirely circumstantial case where there was no body, no weapon and no witness to the crime.

If, as Mr Riley claims, investigators are unconcerned over any scrutiny or testing of their investigation, surely he will join me in calling for an urgent Commission of Inquiry into this case.

Lara Giddings is a former Labor premier and Attorney-General