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The judge also added, “there was an attempt to clean up the scene of the killing and that a stranger would not have done that.” The suggestion that “a stranger” would not have “cleaned up the scene” is puzzling. Every good student of old police programs and current CSI programs knows that any self-respecting burglar or murderer always carries a handkerchief expressly for the purpose of wiping fingerprints from the scene. It is self-evident that such conduct is not meant to express the degree of friendly association with the deprived or the deceased, but is indicative of the desire to remove evidence so as not to be caught. Clearly “strangers” are just as desirous of not being caught as any family member would be. The judge drawing false inferences in this way is indicative of “tunnel vision”.
When one of the appeal court judges noted that “she had led a blameless life until she murdered Robert Chappell”, that was hardly consistent with the prior acceptance by the judge that she had planned to murder her brother 10 years previously.
The appeal court judge also commented on the fact that the trial judge had found that there was almost nothing that counted in Ms Neill-Fraser’s favour for sentencing purposes. She did not plead guilty. She showed no remorse. She had not said or done anything that would assist in the finding of the body. That, of course, is exactly what an innocent person would do, wouldn’t they?
It is clear that there is not a scintilla of evidence which implicates Ms Neill-Fraser in the murder of her partner. It is equally clear that there is no evidence to show that he has in fact been murdered. The case gives rise to a very legitimate concern as to his safety and well-being. It is important to note that the Australian Federal Police web site states that “each year 35,000 people are reported missing in Australia. While 95 percent of people are found within a short period of time, there remains approximately 1,600 long term missing persons; those who have been missing for more than six months.” This means that there are around 130 people who go missing in Australia every month.
Clearly, it is not sensible to suggest that all of those people have been murdered. In this case, there is no compelling evidence-based criteria by which one could distinguish whether Mr Chappell is in fact missing or murdered.
In the judgment in the Stafford case, it was said that it should not be assumed that the appeal court would readily conclude that there was a miscarriage of justice where the evidence “merely cast doubt upon some aspects of a circumstantial case”. However, it was accepted there that the evidence and argument on the appeal “undermined the coherence of the Crown case” to such an extent as to demonstrate a “procedural” miscarriage of justice that required the court to set aside the conviction.
Clearly the same should apply in the case of Ms Neill-Fraser in Tasmania. Australians are entitled to equal justice, no matter where they live.
It is clear from the cases which we have referred to in this article that all states and territories have demonstrated egregious error in dealing with criminal prosecutions and appeals. If such an error had occurred in the construction of a bridge or the assembly of an aeroplane or car, there would be an immediate recall or cessation of activities until the problem had been identified and resolved. In the case of criminal convictions and appeals, there appears to have been no advance in error identification and error correction systems over the last 30 years. The same faulty evidence and procedures which convicted Mr Splatt and Ms Chamberlain have been used recently to convict Mr Mallard (Western Australia), Mr Stafford (Queensland) and Mr Wood and Mr Gilham (New South Wales). There are a significant number of cases yet to be resolved in South Australia and no doubt pressure will continue to build until the case of Ms Neill-Fraser has been properly resolved.
I would suggest that the time has come for a national debate on this issue. Clearly there needs to be a national CCRC. Investigators, prosecutors and expert witnesses in all states and territories must be required to adhere to their professional ethics and their own codes of conduct. Blanket denials of wrongdoing in the face of overwhelming evidence to the contrary is simply not consistent with a mature democracy which claims to respect human rights and the rule of law. Australia, in this respect, must awaken from its slumbers and meaningfully engage with the scholarship and reforms which are taking place in other similar jurisdictions.
Dr Bob Moles is a joint author of Forensic Investigations and Miscarriages of Justice (Irwin Law, Toronto, 2010) which deals with miscarriages of justice in Australia, the UK and Canada. He has also published books on miscarriages of justice in South Australia. He previously taught in law schools at Adelaide University, the Australian National University and Queen’s University in Belfast. He has developed the Networked Knowledge website at http://netk.net.au