Robert
"Bob" Adrian CHAPPELL
Above left -
Bob Chappell aboard his yacht
Above centre - Police would like to
speak with anyone knowing anything about this jacket which
was found in Marieville Esplanade at Sandy Bay
Above right - The yacht has
been towed to Hobart's constitution dock as the search
continues. (ABC News)
PHOTO: Susan
Neill-Fraser, with Bob Chappell and Susan's daughters. 
Record of Investigation Into Death
(Without Inquest)
Corners Act 1995
Coroners Rules 2006
Rule 11
I, Glenn Alan Hay, Coroner, have investigated the death of
Robert Adrian Chappell
FINDINGS
Formal findings I have made can be found at the conclusion
of this document.
REASONS FOR DECISIONS AND FINDINGS AND GENERAL COMMENTS
Background:
On 1 September 2009 Tasmania Police (TasPol) gave notice to
the coroner of the suspected unnatural or violent death of
Mr Chappell having occurred in Tasmania during the afternoon
or night of 26/27 January 2009. Mr Chappell had not been
seen since that time and his disappearance was believed to
be suspicious in that the circumstances of his disappearance
suggested he had met with foul play. Extensive enquiries to
that time had failed to locate any trace of Mr Chappell or
any indication whatsoever that he might still be alive.
The coroner requested Tasmania Police to continue to
investigate the suspected death. For all intents and
purposes an inquest into the suspected death of Mr Chappell
had commenced as at 1 September 2009.
On the 20 August 2009 Susan Neill-Fraser was charged with
the murder of Mr Chappell, and she was remanded in custody.
As no findings had been made upon the inquest I adjourned it
until after the conclusion of the murder proceedings.
Mr Chappell was a divorced man but had been in a
relationship with Ms Neill-Fraser for approximately 18
years.
The Trial of Ms Neill-Fraser for Murder:
In October 2010 a jury found Ms Neill-Fraser guilty of
murder. Mr Justice Blow conducted the trial. Ms Neill-Fraser
was represented by Senior Counsel. It is inferred by me that
she had in her possession prior to the trial copies of any
relevant documentation or other material presented to the
jury during the trial. I also infer those documents remain
available to her and her current advisors.
On 27 October 2010 Mr Justice Blow convicted and sentenced
Ms Neill-Fraser to 26 years imprisonment with effect from 20
August 2009 and she was not to be eligible for parole until
she had served 18 years of the sentence.
In passing sentence Mr Justice Blow made the following
comments (among others):
It is clear from (the jury) verdict that they were
satisfied beyond reasonable doubt that she murdered her
partner of 18 years, Robert Adrian Chappell, on the
River Derwent on the afternoon or night of 26 January
2009. Mr Chappell’s body has not been found. The case
against Ms Neill-Fraser was based entirely on
circumstantial evidence. In my view that evidence
establishes that Ms Neill-Fraser dumped the body in the
river, and that she made an attempt to sink the couple’s
yacht in order to get rid of evidence and to divert
suspicion from herself.
For sentencing purposes, it is appropriate that I make
findings as to how, when and why the crime of murder was
committed, to the extent that the evidence enables me to
do so. I am satisfied beyond reasonable doubt that Ms
Neill-Fraser attacked Mr Chappell on board the yacht,
the Four Winds, which was at its mooring of Marieville
Esplanade, Sandy Bay. The attack occurred in either the
saloon or the wheelhouse, out of public view, when the
couple were alone. Mr Chappell probably died on board
the yacht, but I cannot rule out the possibility that
the attack left him deeply unconscious, and that that
drowning was the cause of death. I am satisfied beyond
reasonable doubt that Ms Neill-Fraser used the ropes and
winches on the yacht to lift Mr Chappell’s body onto the
deck; that she manoeuvred his body into the yacht’s
tender, that she attached an old-fashioned fire
extinguisher weighing about 14 kg to his body; that she
travelled away from the Four Winds in the tender with
the body for some distance; and that she dumped the body
in deep water somewhere in the river. The evidence upon
which I have based these findings includes evidence as
to blood found on the Four Winds, blood found on a torch
on the Four Winds, the state of the ropes and winches on
the Four Winds on 27 January 2009, the absence of the
fire extinguisher and of sections of carpet from the
saloon of the vessel, the finding of the tender on the
morning of 27th of January, the scientific examination
of the tender, DNA matching of samples from the blood of
on the yacht and Luminol positive areas of the tender
with Mr Chappell’s DNA, and the evidence that Mr
Chappell’s body was not found in the sections of the
river searched by police divers.
The Director of Public Prosecutions suggested that Ms
Neill-Fraser killed Mr Chappell by hitting him to the
head with a heavy wrench from behind. It is quite likely
that that is what happened, but I do not consider that
the evidence is sufficient for me to make detailed
findings as to the manner of attack. I am satisfied
beyond reasonable doubt that Ms Neill-Fraser attacked Mr
Chappell, and that he must have been either dead or
deeply unconscious when his body was hauled up onto the
deck, manoeuvred into the tender, taken away, and the
dumped.
On the basis of the evidence that I have referred to, I
make the following findings;
Mr Chappell was alive at about 5 PM on 26th of January,
when Mr Lorraine saw him, but was not seen alive by
anyone other than Ms Neill-Fraser after that time.
Ms Neill-Fraser attacked Mr Chappell either between
about 5 pm and about 9 pm, or at about midnight, either
killing him or leaving him deeply unconscious.
Ms Neill-Fraser returned to the Four Winds in his tender
between 11:30 pm and midnight, and were seen by Mr
Hughes during that journey.
Thereafter, Ms Neill-Fraser sabotaged the yacht, hauled
Mr Chappell’s body onto the deck, manoeuvred it into the
tender, took it away, dumped it somewhere in the river
and returned home by 3:08 am
I am satisfied beyond reasonable doubt that, before
killing Mr Chappell, Ms Neill-Fraser had come to the
conclusion that her relationship with him was at an end.
I am satisfied beyond reasonable doubt that Ms
Neill-Fraser was well aware that she would be
substantially better off with the relationship ending in
death rather than separating and that she killed Mr
Chappell with material gain in mind.
I am satisfied beyond reasonable doubt that Ms
Neill-Fraser deliberately killed Mr Chappell for a
reason, and that that reason had to do with her
financial betterment-possibly a desire to acquire all
the assets that she stood to receive upon his death, and
at least a desire to place herself in a position where
she could acquire Mr Chappell’s interest in the Four
Winds without having to borrow.
I am satisfied beyond reasonable doubt that Ms
Neill-Fraser attempted to sink Four Winds in order to
destroy evidence relating to the killing and to divert
suspicion away from herself.
As a result of the means that she adopted to kill Mr
Chappell and to dispose of his body, Ms Neill- Fraser
made it necessary for the police to undertake a very
time-consuming investigation. It involved a large number
of officers making thorough enquiries over a long
period.
The Appeal by Susan Neill-Fraser to the Court of Criminal
Appeal:
Ms Neill-Fraser appealed against both the conviction and her
sentence to the Court of Criminal Appeal. She was
represented by Senior Counsel.
On 6 March 2012 the Court of Criminal Appeal handed down its
decision, dismissing the appeal against conviction but
allowing the appeal against sentence which was quashed and
in lieu Ms Neill-Fraser was sentenced to imprisonment for 23
years from 20 August 2009 and that she not be eligible for
parole until she has served 13 years of the imprisonment.
Crawford CJ delivered the primary judgement with which
Tennent and Porter JJ agreed.
The Chief Justice essentially repeated the findings made by
Blow J –
The following facts were found by the judge and they are
not challenged by the appeal.
The deceased was 65 years old. He had three adult children.
He was a conscientious public servant, employed as a
physicist at the Royal Hobart Hospital. He wished to
complete a project involving the commissioning of a new
machine used in cancer treatment before his retirement
The appellant attacked the deceased in either the saloon or
the wheelhouse of the Four Winds.
The deceased probably died on the yacht, but it is possible
that the attack left him deeply unconscious and that
drowning caused his death. The appellant used the ropes and
winches on the yacht to lift his body onto the deck;
manoeuvred his body onto the yacht's tender; attached a 14
kilogram old-fashioned fire extinguisher to his body;
travelled away from the yacht in the tender with the body
for some distance; and dumped the body in deep water
somewhere in the river. The deceased was either dead or
deeply unconscious throughout those events.
The judge thought it quite likely that the appellant hit the
deceased on the head with a heavy wrench from behind, but
concluded that the evidence did not enable the making of a
detailed finding as to the manner of attack.
It was found that the appellant travelled out to the Four
Winds in the tender dinghy at about 2pm on 26 January. It
was also found that the deceased was seen by a witness on
the deck at about 5pm and that the dinghy was tied up
alongside at that time. At some unknown time after that the
appellant left the yacht in the dinghy, tied it to the wharf
of the Royal Yacht Club and went home.
She was at home between 9.17pm and 10.34pm, during which
time she spoke by telephone on the landline to three
different people.
Between 11.30pm and midnight the appellant returned to the
Four Winds in the dinghy.
Some time after that she drove home. At 3.08am on 27 January
she made a *10# call from the landline. A witness found the
tender adrift, nosing up against rocks, at about 5.40am.
Based on those matters, the judge found that the deceased
was alive at about 5pm and thereafter he was not seen alive
by anyone other than the appellant. He was attacked by her
either between about 5pm and about 9pm or at about midnight
and killed or rendered deeply unconscious.
Between about midnight and 3.08am, she sabotaged the yacht,
hauled the body onto the deck, manoeuvred it into the
tender, took it away and dumped it somewhere in the river
and returned home.
The judge felt unable to make a finding concerning whether
there was a significant interval between the decision to
attack the deceased and the time of his death.
It was found that before killing the deceased, the appellant
had come to a conclusion that her relationship with him was
at an end. He may not have known that their relationship had
ended.
The judge said that the evidence suggested two possible
motives for the murder of the deceased. One was a desire to
acquire his interest in the Four Winds without having to
borrow money to buy him out. The other was a desire to
acquire his assets in accordance with his will, the terms of
which she was aware. He had about $800,000 in superannuation
entitlements. He owned his West Hobart house. He owed
$160,000 on a bank loan. His net worth was over $1.3
million. It was found that the appellant was aware of the
benefits she was to receive. They included the house free of
debt, his car, his personal possessions and 50 per cent of
the residue of his estate. He had requested that his
superannuation, which did not form part of his estate, be
dealt with in accordance with the terms of his will. It was
found that if their relationship had ended in separation
rather than the death of the deceased, she would have been
at a disadvantage.
His Honour concluded that the evidence did not enable him to
make a precise finding as to what the appellant was
thinking, other than that she was well aware that she would
be substantially better off with the relationship ending in
death, rather than separation. It was found that she killed
the deceased with material gain in mind.
In substance, the evidence of Mr Triffett was accepted by
the judge. As a consequence it was found that in the
mid-1990s, the appellant told him of a plan to kill her
brother on board a yacht she then owned, attach heavy
objects to his body, throw the body into deep water and
scuttle the yacht. In a second conversation she proposed
that the plan be applied to the deceased. In the light of Mr
Triffett's evidence, the judge inferred that the killing of
the deceased involved the implementation of a plan that was
concocted by the appellant "long ago".
The judge commented that he had the opportunity to observe
the appellant during two very long police interviews, and he
had seen her give evidence at the trial over several days.
His Honour said that she seemed to be clever, very cool
headed and well able to control her emotions. In his
Honour's view, she would not have attacked the deceased
unless she intended to kill him, had a substantial reason
for killing him, was confident that she would succeed in
killing him, and had a strategy to avoid punishment. A
positive finding was made that the killing did not occur
because of a loss of self-control, nor was it a crime of
passion. It was an intentional and purposeful killing,
deliberately committed for financial betterment.
……..
It was found that the appellant attempted to sink the Four
Winds in order to destroy evidence relating to the killing
and to divert suspicion away from herself. She opened a
redundant seacock in a for'ard section of the vessel so that
water flowed in. She cut a plastic pipe near the toilet with
the result that water gushed in. She deactivated the
automatic bilge pump and the automatic bilge alarm.
She removed some sections of carpet from the saloon. Some
were simply able to be picked up, but one or more others
were under some wooden fittings that had been screwed to the
floor with the screws passing through the carpet. She
unscrewed four screws in order to dispose of sections of the
carpet.
In the following part of the comments on passing sentence,
the judge made the statement that is attacked by the second
ground of appeal. The passage is:
"As a result of the means that she adopted to kill Mr
Chappell and dispose of his
body, Ms Neill-Fraser made it necessary for the police to
undertake a very time consuming investigation that involved
a large number of officers making thorough inquiries over a
long period
Between paragraphs 10 to 74 of the written decision, Chief
Justice Crawford set out in some detail the evidence given
at the trial. The Court of Criminal Appeal dismissed the
first ground of appeal which asserted there had been a
miscarriage of justice because the prosecutor and/or the
trial judge failed or refused to recall witness Ms Vass
concerning her whereabouts on 26 January 2009. In
dismissing this ground of appeal the Chief Justice stated
that the appellant had failed to establish that there is a
significant possibility, one greater than a merely
speculative one, that the jury would have acquitted her if
Ms Vass had been recalled - “It cannot be concluded that the
verdict was unsafe or unsatisfactory or that a miscarriage
of justice resulted.”
Ground 5 of the of appeal asserted that the trial judge was
in error in failing to instruct the jury that they could not
accept hypotheses raised by the prosecutor to the effect
that the appellant had used a wrench to kill Mr Chappell and
that she had employed a yellow gloves found in the galley of
the yacht. The Chief Justice dismissed this ground of appeal
as no error of law had been made by the trial judge as
asserted on the basis that 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 and the reference by
counsel for the Crown to gloves was insignificant in the
overall context of the trial.
Ground 8 of the appeal asserted the trial judge erred in
admitting the evidence of Philip Triffett to the effect
that, in the 1990s, the appellant had voiced to him a plan
to kill her brother and then transferred that plan to Mr
Chappell in a manner similar to that which, the prosecution
alleged, actually occurred in respect of Mr Chappell in
2009. Giving detailed reasons, the Chief Justice rejected
this ground.
Other grounds of appeal were also dismissed.
The Appeal by Susan Neill-Fraser to the High Court:
Ms Neill-Fraser next applied for special leave to appeal to
the High Court of Australia. She was represented by Senior
Counsel.
The application was heard on 7 September 2012 and the
application was refused on that day. It was put to the High
Court that the case against Ms Neill-Fraser was mainly
circumstantial; that DNA evidence had been found at the
scene of the crime that matched another person, Ms Vass;
that Ms Vass was 15 years old at the time of the deceased
disappearance, and had been homeless since she was 13; that
after Ms Vass gave evidence at trial, further evidence was
given by a police officer suggesting that there were certain
inconsistency in Ms Vass’ account of her location on the
night of the deceased’s disappearance but that evidence was
ultimately ruled inadmissible and as a result a miscarriage
of justice had resulted.
The applicant contended that there had been an application
to the trial judge for leave to recall Ms Vass for the
purpose of a further cross examination on the
inconsistencies which was rejected and further, that on
appeal to the Court of Criminal Appeal she contended that a
miscarriage of justice resulted from the prosecutor’s
failure to recall Ms Vass.
The grounds of the application were explored at some length
by their Honours of the High Court, as can be seen in their
written reasons for decision. In rejecting the application
the High Court said:
“….in our view, this application does not give rise
to a question suitable to a grant of special leave as
the applicant has not shown that she was denied an
opportunity to produce evidence on a point of substance
which can be shown to have had a significant possibility
of affecting the jury’s verdict”.
Should the Adjourned Inquest Now Be Resumed and Should There
BE A Public Hearing?:
Since the conviction of Ms Neill-Fraser a number of members
of the public have expressed their opinions either in
writing to me, or through the agency of the solicitor for Ms
Neill-Fraser, or via various media agencies that the jury
decision was unsafe, unsatisfactory and contrary to the
weight of available evidence. There has also been a
significant amount of media interest in the conviction along
similar lines. This interest has led to pleas to me and to
others to hold a public inquest into the death or
disappearance of Mr Chappell for various and diverse reasons
and opinions, generally on the basis that it is more likely
than not the holding of a public inquest will make findings
exculpatory of the guilt of Ms Neill-Fraser. Given my views
about my statutory duties, I am of the opinion that many of
these pleas are misconceived and inappropriate.
Some of the public interest has been based clearly upon mere
speculation and also without understanding the appropriate
rules of evidence or statutory role, duty and requirements
of a coroner in dealing with a case where criminal
proceedings have resulted in a person been found guilty of
the murder of the deceased/suspected deceased person.
In January 2013 enquiries were made by me of TasPol and the
DPP and the investigation file was then made available to me
for the purpose of my considerations pursuant to section
25(3) of the Coroners Act 1959. Coincident with this
consideration and by letter dated 21 of March 2013, the
legal representative for Ms Neill-Fraser wrote to me
requesting me to resume the adjourned inquest and to hold an
inquest hearing. It is also clear that members of her family
also join in this request, as do other members of the
public.
In very general terms it was asserted that the police
investigation into the disappearance of Mr Chappell was
incomplete and incompetent and the circumstances required
further inquisitorial investigation. It was further
asserted that there was a “range of significant and
fresh evidence” and there are “several other
critical witnesses who were not called to give evidence at
trial” to the extent that when this evidence is made
available it will exculpate the guilt of Ms Neill Fraser.
I am not informed whether there has been any further
application to re-open the criminal proceedings based upon
this alleged or purported significant and fresh evidence.
Assuming that is possible then it would be the more obvious
step to take given the fetters placed upon me by sections 25
and 28 of the Coroners Act 1959.
Further, none of the grounds of appeal in the criminal
proceedings appear to have raised issues of impropriety in
either the police investigation or in the prosecution of the
criminal proceedings.
In any event, Ms Neill-Fraser has been invited to present to
me such alleged significant and fresh evidence and any other
material relevant to the exercise of my powers and duties.
Between March and approximately August of 2013 I received a
voluminous amount of information, comments, submissions and
requests from the current solicitor representing Ms
Neill-Fraser, from members of the public and on one occasion
(through her solicitor) I received correspondence from Ms
Neill-Fraser. This has resulted in a significant amount of
time and effort in review and checking and follow-up by me
as assisted by Tasmania Police. Later I will set out in
some detail examples of the alleged significant and fresh
evidence and other submissions. I have not dealt with all
of them. Others I did not read as they came embargoed with
caveats such as (among others) “personal and in confidence’
or ‘highly confidential’ or ‘legal in confidence’. I
considered that I could not complete my statutory and public
duties by being hamstrung by such caveats and am also of the
view it was not my duty to provide advice to Ms Neill-Fraser
as to the legal effect upon her or any other person
assisting her should I read and take into account and
publish any such information.
A wide discretion applies in considering the answer to the
question as to whether I should resume the inquest by
holding a public hearing to hear evidence. In Clancy v West
[1996]2VR 647 Tadgell JA observed (at 652):
"It was notably recommended in the Norris Report
that, save in cases where an inquest is made mandatory,
a coroner should have an absolute discretion as to the
manner of discharging the duty to investigate a reported
death - whether by investigation short of a formal
inquest, or by inquest.
I have a discretion to make what are commonly called “in-chambers” findings
as best I am able based upon the evidence and the material
before me or alternatively to hold a public inquest to hear
evidence relevant to the making of those findings.
At the outset I must make it clear that in my view it would
be very unusual to hold a public inquest where there has
been a full criminal trial followed by a conviction and
unsuccessful appeals, as is the case here. This is
particularly so given that section 25 (4) of the Coroners
Act 1995 does not permit a coroner to make any finding
inconsistent with the result of the criminal proceedings. In
my view a full public inquest could only be contemplated if
fresh evidence was forthcoming which either made it unlikely
that Mr Chappell was dead and/or that Ms Neill Fraser was
his killer and/or that he had died in other circumstances
and/or there were others who might be likely to have
contributed to the cause of his death and/or it may be
reasonably possible to comment on any matter connected with
the death including the administration of justice.
It is relevant to note that given the conviction of Susan
Neill-Fraser for the murder of Mr Chappell and also given
her current status as a convict I do not consider she is the
senior or any other next-of-kin of Mr Chappell.
It is also most relevant to note that neither the senior
next-of-kin of Mr Chappell nor any other member of his close
family has sought nor requested there be any formal inquest
hearing. To the contrary, the family of Mr Chappell are
most concerned to end any of the formal processes
surrounding his death so that they may grieve and move on
with their lives as soon as they can.
I also note that during the four week criminal trial, the
evidence of many witnesses was heard including extensive
cross-examination as well as the evidence of many witnesses
being placed before the jury by the consent of Ms
Neill-Fraser without the need for those witnesses to be
present and she also agreed to provide to the jury documents
entitled “Agreed Facts.”
For the reasons which follow, I decline to hold any formal
public inquest hearing. In my view I need go no further
than the findings made upon the conviction of Ms
Neill-Fraser and that I have sufficient information to
permit me to make statutory findings where possible.
Statutory Requirements:
By section 3 of the Coroners Act 1995, a ‘death’ is
defined as including a ‘suspected death’. By section 21 a
coroner has jurisdiction to investigate a death if it
appears to the coroner that the death is or may be a
reportable death, that is, where the death is suspected to
have occurred in Tasmania and appeared to be unexpected,
unnatural or violent; or resulted from an accident or
injury; or where the cause is unknown. In this case it is
clear that there existed a reportable (suspected) death from
at least 1 September 2009 if not before and that the coroner
had jurisdiction to investigate it.
By S 24 of the Act a coroner with jurisdiction to
investigate a death must hold an inquest (which
includes but does not appear to be limited to a formal
hearing) if it appears the cause of death occurred in
Tasmania while the deceased ordinarily lived in Tasmania and the
coroner suspects homicide. However that requirement is
subject to section 25 which relevantly provides that if the
coroner is informed a person has been charged with the
murder of the deceased, the coroner must adjourn the inquest
until after the conclusion of the proceedings with respect
to that offence.
By section 25 (3), after the conclusion of criminal
proceedings a coroner may resume the adjourned
inquest if the coroner is of the opinion that there is
sufficient cause to do so. However, by subsection (4), upon
a resumed inquest the coroner must not make any finding
which is inconsistent with the determination of the matter
in the criminal proceedings
By subsection (7) criminal proceedings are not concluded
until a further appeal cannot be made in the course of those
proceedings without an extension of time.
In this case I am satisfied that no further appeal can be
made in the course of the criminal proceedings without an
extension of time. As I have said previously I am not
informed whether there has been any further application to
re-open the criminal proceedings based upon the alleged
significant and fresh evidence or otherwise.
From information available to me at the time of writing
there is nothing to display that Ms Neill-Fraser has made
any application to the Supreme Court or any other court to
re-open the criminal proceedings upon the basis that fresh,
cogent, relevant and potentially exculpatory evidence is now
available which was not otherwise available at the time of
the original criminal proceedings.
By section 25(8), if I decide not to resume an inquest
adjourned in accordance with section 25, then I must inform
the Attorney General in writing.
By section 26, should I decide not to hold an inquest then I
must record that decision in writing specifying reasons and
notify the senior next of kin of the deceased person of that
decision.
By section 27 a person who has a sufficient interest in the
death may request the coroner to hold an inquest into the
death and the written reasons for any decision in relation
to such a request must be forwarded to that interested
person. In this case and notwithstanding she is a convict;
I have considered Ms Neill-Fraser has a sufficient interest
in the death of Mr Chappell.
Whether I resume the inquest or not or whether I hold a
public inquiry or not, I am still required by section 28 (1)
to make various primary findings, if possible. That
is, to find if possible the identity of the deceased; how
the death occurred; the cause of the death; when and where
death occurred; the particulars needed to register the death
under the Births, Deaths and Marriages Registration Act
1999; and the identity of any person who contributed to
the cause of death. Further, I must, whenever appropriate,
make recommendations with respect to ways of preventing
further deaths and make recommendations on any other matter
that I consider appropriate and I may make comment on any
matter connected with the death including public health or
safety or the administration of justice. Except in the
terms of the ‘administration of justice’ my primary duty is
not to investigate or comment upon the police investigation
or the way in which the prosecution was conducted.
By section 28(4) a coroner must not include in any finding
or comment any statement that a person is or may be guilty
of an offence.
To make any findings I must be satisfied on the balance of
probabilities (s140 Evidence Act) and this remains so even
where the matter to be proved involves criminal conduct. It
does not require certainty to be the basis of my findings,
as might be the standard of proof in a criminal proceeding.
It requires me to be satisfied that it is more probable than
not that the facts necessary to establish any findings
existed. I am required to be actually persuaded of the
occurrence of any fact or its existence before I can make
any finding.
The criminal proceedings against Ms Neill-Fraser involved
mainly circumstantial rather than direct evidence. In any
proceedings before a coroner it will be sufficient that the
circumstances surrounding the death or any suspected death
raise more or less probable inferences required to be
drawn. It is my view that following consideration of all
the circumstances in a given case where any competing
possibilities are of equal likelihood or the choice between
them can only be resolved by conjecture, then findings
cannot be made.
It is clear that by the finding of guilt of Susan
Neill-Fraser the jury must have had no reasonable doubt that
Mr Chappell was deceased and that he was murdered by her on
board the vessel “Four Winds” on the night of 26/27 January
2009 and that his body was disposed of from that place at
that time and his body has not since been discovered. None
of those findings were changed by either appeal court and it
is to be noted that, at least for sentencing purposes, Blow
J was of the view - it is appropriate that I make findings
as to how, when and why the crime of murder was committed,
to the extent that the evidence enables me to do so. He
went on to make the findings as are set out in some detail
above and those findings of fact were not challenged in
either appeal nor did either appeal disturb the jury
findings or the findings of Blow J.
In all of those circumstances my decision not to hold an
inquest must be considered in the light of me being
positively satisfied that there is sufficient cause to
resume the adjourned inquest including that it is necessary
or desirable in the interests of justice to do so, rather
than adopting the findings made in the other proceedings. I
am not so satisfied in this case.
Discussion:
I have not been referred to any relevant Tasmanian common
law principles which might assist in this case.
In Taing & Nuon v Territory Coroner & Attorney-General
for the Northern Territory [2012] NTSC 58, two persons
were discovered deceased and their deaths were treated
initially as suspicious by police who undertook an
exhaustive investigation. A coroner did not hold a formal
inquest hearing and made findings on the identity of both
deceased and the place and approximate time of death and
found that the cause of death was undetermined. The family
of each deceased applied to the Supreme Court for an order
that a formal inquest be held. The families held deep
suspicions that foul play was associated with each death.
They submitted that the primary role of a Coronial
investigation was to identify the root cause of the incident
that precipitated death with a view to analysing systemic
failures that contributed to the death and deciding remedial
responses. It was alleged that investigating police had
failed to properly investigate various relevant issues.
The circumstances are obviously different to the inquest
before me. However, there are some persuasive observations
to be taken from the decision.
As Blokland J said at para 12 –
“I agree there is a need for next of kin to be satisfied
that all proper inquiries have been undertaken to determine
the cause of death, however there needs to be some real
possibility shown that holding an inquest will achieve this
objective. Regrettably in some circumstances this is not
possible to achieve. The deep anxiety and suspicions held
by the plaintiffs are not a substitute for evidence.”
And at paragraph 13 –
“…the plaintiff’s have not pointed to further evidence
or how further evidence would be revealed by holding an
inquest…..Both plaintiffs seek to agitate that the deaths
were in fact suspicious and the result of violent acts or
‘foul play’. They submit an inquest would uncover the
relevant facts in support of such a conclusion.”
And at paragraph 42 –
Having read the relevant analogous decisions from other
jurisdictions, it seems the question of whether an inquest
should be held… requires consideration of whether an
inquest, relying on available, credible and reliable
evidence could raise a real possibility of making a finding
on a determined cause of death. If holding an inquest would
be futile in terms of possibly leading to a finding on a
determined cause of death and nothing would be gained from
holding an inquest, an order should not be made. Even if
there were credible and reliable evidence raising a real
possibility of shedding light on a particular aspect of the
cause of death falling short of findings on a determined
cause of death, that may well suffice depending on the
importance of the factor.
At paragraph 53 –
The discretion needs to be approached assessing the
strength of available evidence and determining after
consideration, whether there would be any benefit in the
holding of an inquest on whether it would be expected to
yield further information that thus far has not come to
light. Any benefit that can be ascertained to flow to the
next of kin needs to be considered, particularly if the
holding of an inquest will contribute to an important
finding.
At paragraph 54 and 55 –
What would make the holding of an inquest “desirable” is
that there be some practical benefit to the next of kin in
terms of better understanding of what occurred to the
deceased, or that there be a benefit to the general public,
a section of it, or to the overall administration of
justice. An inquest should not be held where it would
clearly be a futile exercise.
It is likely the discretion will in fact be exercised
sparingly.”
Hutley JA in Bilbao v Farquar (1974)
1 NSWR 377 considered that a coroner, in deciding whether
to resume an adjourned inquest should not be concerned with
evidence that had been excluded in other proceedings as a
reason not to re-open the inquiry but whether such evidence
would have probative value to assist the coroner in the
further inquiry. Importantly His Honour suggested there is
no reason to reopen an inquiry if the coroner considers that
further evidence would not assist the inquiry.
It was acknowledged in Clancy v West [1996]
2 VR 647 that there should be some comparison between
relevant information that an inquest might be expected to
yield and information otherwise obtainable. It is also
apparent that a coroner in deciding whether to hold an
inquest should consider the relative costs of holding one
and/or doing without one, duly weighing the benefits (if
any) which an inquest might produce against the
disadvantages (if any) which investigation (or further
investigation) short of an inquest might entail.
In Veitch v the State coroner [2008]
WASC 187, there was discussion as to the possibility of a
different outcome by virtue of the existence of a reputable
body of evidence. Justice Beech held that in this context
there should be a real or realistic possibility, not merely
theoretical possibility, and that there should be cogent
credible and reputable evidence. Any new evidence relied on
must reach a threshold of some degree of cogency. The
cogency of the evidence must be assessed before it is
determined whether an inquest is justifiable.
So in my view the authorities indicate that if the holding
of an inquest would be futile, a coroner would be justified
in refusing to hold that inquest. A comment by Warren J in Rouf
v Johnstone [1999] VSC 396 at para 36, also in
somewhat different circumstances is still apt –
“Upon scrutinising the factors relied upon by the
plaintiff in support of the application I consider that all
of the circumstances relied upon are highly speculative,
based on hearsay on hearsay and constitute no more than a
suspicion possibly propelled by inter-family ill-feeling. I
consider that whether the circumstances are considered in
isolation or, alternatively, considered on a collective and
interwoven basis there is insufficient evidence to warrant
the exercise of the power under s. 18(3) of the Coroners
Act.”
THE APPLICATION OF THE STATUTORY REQUIREMENTS AND THE
PRINCIPLES TO THE CIRCUMSTANCES IN THIS CASE.
Having set out in some detail the results of the criminal
proceedings and the findings made by the jury and by the
sentencing judge which were not traversed in subsequent
appeals, it is to be noted such findings were based upon the
higher standard of proof, namely beyond reasonable doubt. In
my view, it would be unusual to hold a public inquest where
there has been a fully explored criminal trial based largely
upon circumstantial evidence followed by a conviction with
further opportunities to challenge the conviction by way of
appeal, as is the case here. This is particularly so given
that section 25 (4) does not permit a coroner to make any
finding inconsistent with the result of the criminal
proceedings. In my view a full public inquest could only be
warranted in the public interest and contemplated if there
was sufficient fresh evidence forthcoming not available in
the criminal proceedings which either made it unlikely that
Mr Chappell was deceased and/or that of Ms Neill-Fraser was
his killer and/or others probably contributed to the cause
of his death and/or that he likely died in other
circumstances. A simple example may well be in the
well-known ‘Azaria Chamberlain’ case following the discovery
of the baby matinee jacket some time well after the earlier
proceedings.
To that end Ms Neill-Fraser has been invited to provide to
the coroner any such relevant material and a significant
amount has been provided on her behalf. In my view, a
significant amount of it seeks to re-agitate issues more
properly the possible subject of grounds of appeal in the
criminal proceedings. They have little apparent relevance to
the findings a coroner may have a duty to make under the
provisions of the Coroners Act.
Ms Neill-Fraser now asserts, either personally or through
the agency of her solicitor who I infer was appointed
following the unsuccessful appeal process or through the
agency of members of the public who appear to support her,
among other things and in summary format:
• the police investigation was not thorough, and
• the investigation was or may have been tainted by fraud,
and
• the police investigation was compromised by procedural
irregularity, including the non—disclosure of evidence and
the failure to take statements from key witnesses, and
• there was possible embellishment of evidence, and
• “a raft of new and fresh evidence not considered at
the trial or subsequent appeals is now available. In this
regard, Ms Eve Ash is able to provide powerful visual
evidence of matters that are highly relevant to the
investigation of the death”, and
• given the entirely circumstantial case in the conviction
of Ms Sue Neill-Fraser and the potential for a miscarriage
of justice to have occurred, particularly given the
limitations of the adversarial criminal justice system,
there is a high probability that the inquisitorial approach
to the death of Mr Chappell will provide critical
information concerning the manner and cause of death and the
circumstances leading to his death, and
• there are numerous forensic advantages of holding an
inquest, and “an inquest will address and allay the
significant public concern and disquiet about this case” (it
is assumed the so-called public concern and disquiet relates
to the conviction for murder), and
• a full public hearing inquest “could also well lead to
important recommendations concerning the investigation of
missing persons cases and major crime in Tasmania and to the
broader administration of criminal justice”, and
• the police investigation which concluded upon conviction
cannot determine with sufficient certainty how the actual
death occurred, the cause of death (including the failure to
identify a weapon or manner of death), the actual time of
death and the identities of persons who may have contributed
to the cause of death or assisted in the disposal of his
body, and
• Ms Neill-Fraser did not receive a fair trial or fair
hearings in appeal courts because there was important and
relevant evidence not made available to those courts which
would have materially assisted in determining her
involvement or otherwise in the death of Mr Chappell.
However, I digress to posit, are these not matters to be
brought back before the Supreme Court and not properly the
subject of an inquest?
• an inquest would uncover the relevant facts in support of
a conclusion inconsistent with the guilt of Ms Neill-Fraser
as having murdered Mr Chappell.
The assertions have very serious implications and on the
face of them call into question the administration of
justice in and about the criminal trial of Ms Neill-Fraser.
I will now refer to specific examples put forward as to why
a public inquest should now continue. They are by no means
exhaustive of all arguments, submissions and reasons
provided to date, but are in my view the most relevant.
1. Ms Neill-Fraser maintains more specifically that the
police investigation was deficient or the verdict unsafe in
that -
a. there is intelligence and information available that
there was a woman involved with the disappearance of Mr
Chappell who was associated to two homeless people known as
Yaxley and Gleeson and that one of them may have been
involved in the disappearance and may even have later
accompanied the woman to New Zealand; that the woman left
Australia shortly after Australia Day and went to New
Zealand and she went by the Christian name of “Trixie”; yet
police failed to investigate the involvement of these 3
persons and there have been lost or unexplored forensic
opportunities to identify this woman, and
b. ‘there was also a very distraught and sobbing woman
picked up by a taxi from RYCT between 11pm and 2am on
Australia’.
Having considered the police investigation I am satisfied
there has been a proper investigation by police about these
allegations both soon after the disappearance of Mr Chappell
and subsequently and nothing has arisen to suggest they
should be pursued any further. The person known as a Gleeson
was spoken to by police officers during the morning of the
27 January. He stated he was and had been asleep in his
motor vehicle at any relevant time and had no information to
objectively assist in what may have occurred at or around
the time of the disappearance. There is no other objective
evidence available to suggest that he may not be telling the
truth. It is apparent that Gleeson had lived in his car at
the Sandy Bay Rowing Sheds site for some time and was known
to be a heavy consumer of alcohol. He had associates known
as Yaxley (aka Little) and Wroe who were also spoken to by
police and who were also heavy consumers of alcohol.
There is nothing in their evidence or recall of events which
could objectively permit any findings to be made on the
balance of probabilities which might assist in this
inquest. Their evidence could only be regarded as generally
unreliable littered with speculation, hearsay and post-event
innuendo. There is nothing in their evidence which might
suggest they had any involvement with the Four Winds on the
26 or 27 of January. There is no acceptable probative value
or weight or other worth in their evidence in the context of
pursuing an inquest hearing. The identity of these
witnesses were known to defence at the time of the trial and
it was open for defence to have pursued them as potential
witnesses, even if the DPP and police considered their
evidence as less than relevant.
Further, in relation to the speculation about the woman who
went to New Zealand at or about the relevant time. I am
satisfied this was and has been properly investigated and
has no relevance to any issue extant in relation to the
disappearance of Mr Chappell. Because this woman left an
apparently abandoned motor vehicle near the Sandy Bay Rowing
Sheds she was posted as a possible missing person on 11
January 2009. She had not been seen since the end of
November 2008. Enquiries were conducted and on 11 January
2009 it was confirmed that this woman was in New Zealand
attending a family wedding on 6 December 2008 and was
staying with family. She returned to Hobart in March of
2009 and was spoken to by police who established there was
no link or connection to Mr Chappell or any other relevant
person of interest and it was confirmed she was in New
Zealand at any relevant time. The speculation that she left
for New Zealand soon after Australia Day, is merely that –
speculation without any foundation.
Following investigation there is no available information in
relation to any person called “Trixie.”
Police have also investigated the report of the sobbing
woman at the RYCT. As a result nothing could be discovered
relevant to this inquest. It falls very firmly into the
arena of mere speculation.
2. Ms Neill-Fraser now asserts that a potential witness,
whom I will identify as Mr X, has come forward (in 2013)
and “he believes he holds critical information, even
“the lynchpin,” as to what occurred on Australia Day 2009.”
It is also asserted that Mr X, “provided a lengthy
handwritten explanation to police as to what occurred
(shortly after the 2009 incident it would seem) and gave a
full description of a woman involved to the police but he
refused to sign a statutory declaration.” It is also
asserted that Mr X has, sometime prior to 2 July 2013 been
in contact with Tasmania Police and given them 3 sources of
more information but police were just “sitting on it.” It
is asserted that this is critical information not followed
up by police and that Mr X’s 2009 evidence was never
disclosed prior to the trial of Ms Neill-Fraser.
Having investigated these assertions I am satisfied that Mr
X was a former registered police informant, having been
de-registered following TasPol discovering that a statutory
declaration provided by him in relation to an entirely
unrelated matter was found to be false. Nevertheless he kept
in touch with Detective Long from time to time.
It is incorrect that after Australia Day police typed a
statutory declaration of his in relation to the Chappell
matter. It is incorrect that the informant provided any
description of a female or anything else said to be linked
to the Chappell death or suspected death. However, it is
correct there was a statutory declaration but on a quite
unrelated matter.
Well after the trial leading to the conviction of Ms
Neill-Fraser, Mr X did write to police on 20 March 2013 with
one asserted piece of information relating to a dinghy being
sold or having been sold by police. Without providing any
information to lay any foundation or basis, he stated in his
letter that “I believe the Purdon Dinghy being sold by
Steve may be involved in the disappearance of the Doctor off
Four Winds.” Further discussion with Mr X by TasPol
disclosed that the information supplied by Mr X in his
letter of 20 March 2013 came from discussions he had with
others in a hotel bar in or around August/September 2012 and
on 9 March 2013. Mr X was spoken to by TasPol on 20 March
2013 and did not wish to be identified, was not prepared to
make any further written statement and was not a willing
witness.
On 20 March 2013, in describing persons present in the hotel
bar some 3 weeks after August/September 2012, Mr X described
two males as being drugged up and drunk and “there was a
dark haired female with tattoos with them. This female went
from bloke to bloke. She was in her late 30’s, long dark
hair, good looking, and had big teeth.” Mr X went on
to say that about 2 weeks later, Mr X was informed this
woman had breached a parole condition and had gone back to
prison. Following detailed investigation this is the only
information provided by Mr X giving the description of any
female possibly relevant to this inquest. There is nothing
to suggest that this unknown female was in any way related
to the disappearance of Mr Chappell, other than the
speculation that the unknown female was in a hotel bar in
late 2012 in close proximity to two drunk and drugged males
who had a very loose connection by proximity to the events
of 26/27 January 2009.
TasPol investigated further and concluded that no useful
probative evidence had arisen or was likely to arise from
the hearsay and unreliable so-called evidence provided. In
all of the circumstances I cannot disagree with that
conclusion. Having separately considered this information
there is nothing within it which persuades me that it is any
more than speculation and hearsay or that it is more likely
than not to have a relevant bearing upon any findings I may
be required to make pursuant to the Coroners Act. Mr X
conceded that any information he had to impart was hearsay
and he had no information to corroborate any assertion. The
reliability of his evidence must also be considered in the
objective context of his own reliability and credibility.
It seems reasonably clear that the two males present in the
hotel may well be Gleeson and Rowe, both of whom have been
spoken to at length by TasPol who objectively considered
that there must be questions as to their general reliability
and credibility. There is just no probative weight in any
information or suspicions surrounding either of them as
having been involved in the death or suspected death of Mr
Chappell.
3. Tasmania Police have refused access to key documentation
such as;
a. a file in relation to a person known as Philip Triffett;
In relation to this, I note that two statutory declarations
made by Mr Triffett and his sworn deposition were included
in the Crown papers available prior to the trial and I
reasonably infer that those papers remain in the possession
of Ms Neill-Fraser or her advisors. The admissibility of
the evidence of Triffett at the trial was the subject of a
ground of appeal to the Court of Criminal Appeal, but was
rejected. It was not a ground of appeal to the High Court.
Having considered available documentation relating to
Triffett, there is nothing within it which persuades me that
any further ventilation will assist me in my statutory
duties.
b. failing to disclose interviews conducted by police with
Mr Gleeson and Mr Yaxley (also known as Mr Little),
allegedly homeless men on Marieville Esplanade foreshore at
a relevant time;
It is trite to say that not all evidence gathered by
investigators will have sufficient cogency or weight or
probative value to warrant producing in evidence. As I
understand it neither of them gave evidence at the trial.
Their names appeared on TasPol investigation running sheets
and their identity known to defence counsel at all relevant
times. I have already discussed the general lack of utility
in their evidence and general unreliability in it. I have
considered their detailed records of interview and other
material about their relevant knowledge and have concluded
there is nothing within them which persuades me that any
further ventilation of them will assist me in my statutory
duties. I can see no reason why the statutory declaration of
Yaxley (aka Little) and the records of interview of Messrs
Gleeson and Rowe cannot be made available.
c. failed to disclose interviews conducted with Ms Vass, the
homeless girl whose DNA was found on the yacht;
This just cannot be correct. At pages 274 to 277 of the
Crown papers is the Statutory Declaration of Senior
Constable Sinnitt noting in some detail his investigations
into the Vass DNA and noting that she declined to make a
statement “stating that she has no recollection of her
movements at the relevant time and stating it would be a
waste of time due to her having no knowledge of the matter.”
The Constable’s hand-written notes of his conversation with
Ms Vass on 18 March 2009 were also in the Crown papers. It
is also to be remembered that Ms Vass was aged just 15 years
at the relevant time and had been homeless for some 2
years. I have previously noted that both appeals rejected
submissions that her evidence should have been rejected. In
my view, whether TasPol did or did not disclose interviews
with Ms Vass before the criminal trial has no significance
to my considerations. Having considered the available
material, there is nothing more usefully to be gained in
relation to the evidence of Ms Vass. There is no acceptable
evidence to link Vass to any other person linked to the
investigation or for any motive for her to be involved with
the murder of Mr Chappell. Other than the DNA match there
was no other link between Vass and the vessel. It is
established that no less than 21 persons, including Police,
Fire Officers, civilian witnesses and Ms Neill-Fraser had
been on board the vessel between the time the vessel was
found sinking to the time the sample of Vass’ DNA was taken
from the deck on or about the 15 March. In the meantime the
vessel had been moored at Constitution Dock and POW Bay.
Vass denied having ever seen the Four Winds or been on it
and denied having any knowledge of Mr Chappell. Her DNA may
well have been placed on board the yacht simply by
transference, but of course that is speculation. As Chief
Justice Crawford said, Ms Neill-Fraser “had failed to
establish that there is a significant possibility, one
greater than a merely speculative one, that the jury would
have acquitted her if Ms Vass had been recalled.” In
all of those circumstances this assertion and the
submissions in relation to it must be rejected as being not
relevant to my considerations.
d. key documents have been significantly redacted or blacked
out by Tasmania Police and the coroner should have access to
this additional information.
I am reasonably satisfied that I have had access to any and
all available documents. I have no specific documents
referred to me by those who assist Ms Neill-Fraser and infer
that any such redacted or blacked-out documents arose from
TasPol complying with obligations under the Right to
Information or like legislation. I am not persuaded I
should take this any further.
4. It is submitted that in the criminal trial Ms
Neill-Fraser gave evidence that on 10 January 2009 she and
the deceased discovered that the Four Winds had been entered
and searched and that this was corroborated by an entry in
her personal diary for that date. It is now submitted that
this “highlights concerns about the issue of drugs well
before the events of Australia Day and indicates quite
likely the yacht had been unlawfully entered several weeks
before the disappearance of Bob Chappell and that it could
well be consistent with people stealing from yachts, or
homeless persons or others using the yacht to obtain
supplies, or for somewhere to sleep for the night,
particularly if they had access to a dinghy and the entry
also indicates that trespassers had explored the boat,
touching various items of equipment and even lifting floor
hatches. This is important as the seacock that was used to
attempt to sink the boat was found to be under a floor
hatch.”
It is submitted by Ms Neill-Fraser that the DPP contended at
the trial the diary entry was a lie and another false trail
by Ms Neill-Fraser and that the diary entry was squeezed in
on that date and was clearly in 2 different pens. There was
evidence from a document examiner to support this.
Having considered the diary entry I am not persuaded that it
would satisfy me that on the balance of probabilities any of
the submissions now made might be correct.
It is submitted that an April 2013 report by a forensic
document examiner, Michelle Novotny establishes that the
inks in the relevant entries are not distinguishable and
there is no evidence to suggest the relevant entry had been
“squeezed into” the entry for that date. She may well be
correct about that because it subsequently came to pass that
the original diary provided by TasPol to the legal
representatives of Ms Neill-Fraser and inspected by M
Novotny was the incorrect one. It seems that within days of
the 27 January 2009, Ms Neill-Fraser volunteered to TasPol
her 2008 and 2009 diaries to assist with investigations into
his disappearance. She took a photocopy of the original
2009 diary and then transposed the diary entries for January
into a new 2009 diary. In March of 2009, TasPol searched
her premises and took into custody all diaries in her
possession including the new or second 2009 diary. The
original 2009 diary was tendered into evidence in the trial
and to date remains within the Supreme Court as one of its
exhibits.
I accept that TasPol in good faith provided what it thought
was the original diary to the agents for Ms Neill-Fraser and
there is nothing sinister in doing so. I assume the
original diary can be made available for inspection upon
request to the Supreme Court. I decline to make that
application.
It is also submitted that this “new material supports
the theory that someone else visited the Four Winds yacht
that day…” At best it is an unsupported theory. It is
not probative of anything in any admissible sense.
Further, the question of the accused seeking to lay a false
trail to divert police by making the diary entry was the
subject of the appeal to the Court of Criminal Appeal
(ground 3). That court rejected that ground of appeal. It
was not a ground of appeal to the High Court.
5. It is asserted that the personal notebooks of the
deceased were in the possession of Taspol but were never
disclosed to defence counsel at or before the trial. It is
maintained the accused handed 3 such notebooks to TasPol
during the investigation. Without laying any basis for it,
it is now the belief of the Ms Neill-Fraser that Mr Chappell
may have recorded in those notebooks a range of important
issues, including the possible disposal of the Four Winds
out-of-commission fire extinguisher.
Those notebooks remain in the possession of TasPol and while
some of the handwriting is hard to decipher I accept that
they contain nothing of relevance to assist me further.
Generally they contain notes about enquiries made before
purchasing the yacht, what needed doing about or on the
yacht; later notes about work planned and safety checks
needed; entries or records of trips they had made and
activities. There is no apparent entry relating to any fire
extinguisher. There is nothing to suggest they may have had
any relevance to the criminal trial or any coronial
investigation. I can see no reasons why copies should not be
provided.
6. It is asserted that the ships log – trial exhibit P 13 - “may
also provide critical information.” Again, without
laying any basis for, it is now the belief of Ms
Neill-Fraser “that a review of this document may also
provide critical information.”
The log was an exhibit in the criminal trial and remains
with the Supreme Court. I accept that it contains notes of
problems Mr Chappell had with the vessel and the details of
the trip from Queensland. Am not persuaded it has any
relevance to the coronial investigation. I assume the
original log can be made available for inspection upon
request to the Supreme Court. I decline to make that
application.
7. It is asserted that the TasPol Forensic Register includes
an entry for the 4th of February 2009 – bedding – sheet
(with red/brown stains) starboard aft cabin of yacht. The
reference is 144314662.
Page 1021 of the Crown papers (Forensic Biology Report) and
item “No. 106 – sheet (with red/brown stains) –
starboard aft cabin – Not examined”. See also
Forensic Exhibit Register item No. 144314662 same
description appears under heading ‘bedding 04/02/2009’.
The bedding was not tested and continues to be held by
TasPol Forensic Services. I accept that given the other
evidence available, investigators made a judgment that it
need not be tested. I am not persuaded there is any utility
in going to that expense. I can see no reason why Ms
Neill-Fraser could not now arrange to have that sheet
tested.
8. The question has arisen whether a black jacket found by
Mr Nicholas Millen on Droughty Point on 28 January 2009 held
at Bellerive police station (miscellaneous receipt 214264)
(see police investigation log entries for 2 February 2009
and 15 April 2009), was investigated by TasPol. The
implication being that it was not.
That is not the case. Ms Neill-Fraser reported that a black
japara with no lining was missing from the yacht and it
belonged to Mr Chappell. The jacket found by Mr Millen on
28 January 2009 was a polar fleece black jacket with a
lamb’s wool type lining and obviously dissimilar to the one
reported as missing from the yacht. A statement was taken
from Mr Millen and disclosed to defence. This jacket had no
relevance. It remains irrelevant. The question about it is
mere speculation with no foundation. The black jacket is
still held by TasPol.
9. It is suggested that a fire extinguisher was found in the
yard of Sandy Bay property around the time of the
disappearance which was said to have been seized by police.
It is suggested this finding was not in the police
investigation log and was not followed through by Tasmania
police.
A search of police records has not revealed any information
regarding the supposedly extinguisher located in the yard.
Records relating to other fire extinguishers located by
members of the public are available and they were all
discounted as they were the incorrect size or otherwise
contained evidence post 27 January 2009. Given the lack of
any formal record of this fire extinguisher it is more
likely than not that it was immediately discounted as not
being relevant upon inspection and accordingly was not
formally recorded. There is no other information available
in relation to it of any probative worth.
10. Copies of DVDs of recorded interviews between the
accused and police in March and May 2009 are sought by Ms
Neill-Fraser as it is asserted, without laying any
foundation for it, that “significant pieces of
conversation appear to have been not included in the taped
interviews for the benefit of the court.”
It is very clear that the original DVD’s were made available
to defence counsel and the originals were tendered as
exhibits in the criminal trial and remain with the Supreme
Court. On the face of it serious allegations are raised in
relation to the propriety of police officers in and about
the investigation. There is no evidence to support the
allegation the originals were edited or changed by TasPol.
It might be that from time to time the DPP may edit copies
of records of interview to delete agreed inadmissible
material before it is played to a jury. I have no
information about that possibility but in any event defence
counsel had ample opportunity to take instructions and
address any such issues before or during trial or subsequent
appeal processes. I reject it.
11. It is also asserted that on 5 April 2010 Senior Sgt
Kerry Whitman of Forensic Services Hobart said in a
statement disclosed to the defence, but never called as a
witness at the trial, that she edited CDs and DVDs in
relation to the murder investigation as per written
instructions and verbal assistance from Detective Sinnitt.
It is said that a number of the discs were edited by
removing specific parts of the audio file with the Nero
WaveEditor program. Her statement is also alleged to support
the allegation that all the “product discs” were
duplicated after the editing process and consequently were
edited discs and not a true copy of the original discs that
were provided to defence counsel. It is asserted that
Neill-Fraser has always maintained that sections of her DVD
records of interview have been edited out.
These are on the face of it very serious allegations to make
against the two police officers of having fabricated or
interfered with evidence in a homicide/coronial
investigation.
The statutory declaration of officer Conroy, p 261 of Crown
papers and officer Puurund page 284, notes that on 4 March
2009 Puurund spoke with the accused at the police station
and it was recorded on discs H1/178/09. On 5 May Conroy and
officer Sice conducted another ROI recorded on discs
H1/348/09 - see page 263 of the papers. Page 285 Puurund
states that on 20 August 2009 he asked the defendant to do
another ROI but she declined.
The ROI dated 4 March was transcribed by Ringrose on 21
August 2009. She transcribed from CD numbered HO1/178/09.
The 5 May ROI was transcribed by Wagner on 7 July 2009 from
CD HO1/348/09.
Both original DVD’s remain in the exhibit register of the
Supreme Court – P68 and P70. It is clear to me that the
statement of Sgt Whitwam relates to the formatting of CCTV
footage obtained from third parties as well as listening
device recordings so that they were in a format to be viewed
by others and played in court. There is no evidence any
records of interview have been edited in any way. No issue
was taken at trial or in subsequent appeals in respect of
this allegation. If she was not called as a witness in the
criminal trial then I infer it was as the result of the
approbation of Ms Neill-Fraser and her advisors following
disclosure of the relevant discs and statements and other
information.
12. It is contended that following subsequent analysis of
statements made by witness Peter Lorraine compared to his
evidence at the criminal trial, his evidence is quite
unreliable, but it was presumably relied upon especially in
ascertaining an approximate time as to when Mr Chappell was
last seen alive. It is also suggested that the original
notes taken by police officer Sinnit of his discussion with
Mr Lorraine on 27 January 2009 was never disclosed by TasPol
before the trial and that the original notes in fact contain
more important detail than the entry contained in the formal
police investigation log. It is asserted that as a result,
the ethical behaviour of investigating police in omitting
critical information from Mr Lorraine statement and the
formal police investigation log must be questioned together
with possible issues of suppression of evidence and
non-disclosure.
The original notes and supplementary information are still
available in police possession. I am informed and accept
that defence counsel were aware of the notes prior to trial.
In my view the contents of those notes would have had no
real impact upon the evidence available. They can be made
available if necessary upon request.
My investigations into these assertions do not permit me to
draw any specific conclusions and in any event the question
is more properly to have been addressed at the trial or
subsequently. Like other witnesses, Mr Lorraine may well
have been confused about the precise timings of events;
however evidence from a nearby shop receipt placed him in
the area at 5 pm. All of his statements were disclosed to
defence counsel and it was open for him to have been
cross-examined regarding any of these issues. Even if Mr
Lorraine’s evidence is found on the balance of probabilities
to be unreliable I am of the view that it would make no
positive difference to any findings a coroner may be
required to make pursuant to the provisions of the Coroners
Act.
13. It alleged there is concern that critical evidence from
Dr Newton obtained by police was not made available to the
court in relation to medical issues for the accused and
there is a need for expert advice on the impact of shock
anxiety and diazepam upon the accused’s memory and the
conviction should not be relied upon to negate the need for
a full and open inquest due to memory issues for Ms
Neill-Fraser in relation to her movements on 26 January
which may well have been brought about by a combination of
shock and anxiety and diazepam medication.
Dr Newton was the general practitioner for Ms Neill-Fraser
at the time of the disappearance of Mr Chappell. TasPol
obtained a medical report from him especially in relation to
any thumb or wrist injury. The report did not disclose a
history of any such injuries. Dr Newton saw Ms Neill-Fraser
on 4 February 2009 and she informed the doctor that her
husband had disappeared in mysterious circumstances. The
doctor’s notes also referred to a claim by her that she had
derealisation sensations and immobility which stopped her
from moving for up to 15 minutes, most probably
stress-related catatonia thought the doctor. The doctor
recommended relaxation time and exercise. At a later
consultation Ms Neill-Fraser sought a referral to a
psychiatrist and subsequently saw Dr Ian Sale. Dr Sale
subsequently provided a report on her behalf. All medical
records and reports were disclosed to defence counsel prior
to trial and it is apparent she did not elect to call any
medical evidence nor did she seek the DPP to do likewise to
further any possible defence.
I am not satisfied I should pursue this matter any further.
There is nothing to persuade me that this assertion, even if
it had a scintilla of relevance, would assist me in my
statutory findings.
14. It is submitted that a statutory declaration of Jill
Ikin dated 2 October 2009 (8 months after the disappearance)
gives firm experienced evidence about a quite different
dinghy being alongside the yacht. It is said this evidence
is now critical as there are now 3 apparently reliable
witnesses who saw a grey and different dinghy secured to the
yacht namely Lorraine and witness P36. P36 was not called at
the hearing nor was Ikin! Ikin in her statutory declaration
also noted that she contacted police within a few days of
the disappearance that there is no entry in the police
investigation log in relation to that and there was no
formal statement taken from her until 8 months later and she
was not called as a witness.
It seems that P36 refers to Exhibit 36 in the Supreme Court
file-“stat.dec by mature woman of sound mind.” Obviously
this person was not called as a witness and the inference to
be drawn is that her statutory declaration was placed into
evidence by the consent of the defendant.
Ikin was not called to give evidence at the criminal trial
but her evidence was available to defence counsel. It must
be noted that Ikin was some distance from the vessel and
dinghy and it is possible that she was confused about what
she saw and where the dinghy was, just as much as some other
witnesses may also have been. Nevertheless, discrepancies in
evidence between witnesses as to the position of the yacht
and the colour of a dinghy were taken into account by both
the jury and the judge in the criminal proceedings. I accept
that there was a lot of conjecture about the colour and
description of the dinghy as seen by various persons and
this topic was canvassed at significant length throughout
the trial.
Following investigation, I am reasonably satisfied that
there has been an oversight in the failure to record on the
police investigation log, the initial contact with witness
Ikin however, it must be accepted there was some note or
reference of it for police to follow it up with her in
October 2009.
In my view this failure or error in a lengthy detailed and
comprehensive investigation does not on the balance of
probabilities give rise to any systemic or any other failure
in the police investigation and does not give rise to any
concern that some other person may have contributed to the
death of Mr Chappell.
15. In relation to DNA testing of a human hair found on the
hatch on the yacht. Again, I am surprised about the
suggestion this was not followed up by TasPol. The Forensic
Biology report dated 1 July was produced during the
preliminary proceedings and formed part of the Crown papers
(page 999) presumably was and still remains available to Ms
Neill-Fraser and her advisors. In any event I have confirmed
the human hair was tested and continues to sit on the
Tasmanian and National database and is automatically checked
against new entries. All that could be found was that it was
a female DNA profile. FSST checked the database 23rd of
October 2013 and there is still no match.
Further, a piece of evidence known as the “long dark
hair” found on the outer surface of the jacket found to
belong to Ms Neill-Fraser was not forensically tested as
investigating police considered it was not relevant. Some of
the hairs found on the jacket were possibly animal hairs but
again were not forensically tested. This hair remains in the
custody of TasPol Forensic Services.
The “apparent hair” found near the removable steps
in blood from Robert Chappell was also not tested and is
held by TasPol Forensic Services.
The Dolphin torch and blue cushion are still held by TasPol
Forensic Services.
16. As best I can understand it, Ms Neill-Fraser also
maintains that generally the police investigation was
deficient in that DNA samples and/or fingerprints were not
taken from all persons no matter how remotely connected with
Mr Chappell and his disappearance. Unidentified fingerprints
were found in or about the yacht and its accoutrements.
Having investigated this matter further I am satisfied that
in fact DNA samples and/or fingerprints were taken from all
and any persons of interest including tradesmen, police
officers and family members and crossed-matched to any DNA
or fingerprints found in or about the yacht and its
accoutrements. While it may be of little relevance, my
investigations disclose that despite very clear evidence Ms
Neill-Fraser had been on board the yacht on at least 25
January for some period of time, none of her fingerprints
were discovered on the vessel or its accoutrements.
17. There is a general and broad but very serious assertion
that a latex glove discovered by forensic officers on the
yacht contained the DNA of Timothy Chappell and this
obviously links him with the disappearance of his father.
This seems to relate to item 26 in the Forensic Biology
Report. The register has several references to latex gloves
and boxes of gloves on board the yacht. Available evidence
is clear that Timothy Chappell was on board the yacht with
police and other family members during the day of 27 January
2009 after the yacht was moved from Battery Point to
Constitution Doc. Whilst on board it was noticed that there
was still water leaking into the vessel via the damaged
seacock. In the presence of police officers and Ms
Neill-Fraser, Mr Chappell used the latex glove to help block
the still leaking pipe. It is to be noted that at the time
Mr Chappell used this glove, police were not treating the
matter as a murder investigation, merely the mystery
disappearance of Mr Chappell.
The yacht was then removed to dry-dock at Prince of Wales
Bay where a thorough forensic examination was undertaken and
the glove was there located by forensic examiners. A
forensic swab was taken of the glove but Mr Chappell was
never interviewed regarding it as he was not a suspect and
investigators realised how his DNA was left in or about the
glove.
There is no evidence to suggest any likelihood that Timothy
Chappell was or is linked to any of the issues in this
inquest.
Conclusion:
It is inevitable that when the body of a deceased person
cannot be presented to the coroner and a person is convicted
of having murdered that person based entirely on
circumstantial evidence, there will be some unanswered and
unanswerable questions and issues arising. It is also
inevitable that not every stone is overturned in a police
investigation, whereas an ideal world might dictate they
should, no matter how relevant or irrelevant they might
appear. In this case there have been many criticisms of the
police investigation, most of which in my view have no
substance to them and I am not satisfied that any of those
criticisms will inevitably lead to a cogent and probative
result likely to change any findings I might otherwise make
in this case.
I am not satisfied that it has been established that there
is any significant possibility, beyond merely speculative
ones that the holding of a public inquest would elicit any
information further to that disclosed by the lengthy and in
my view comprehensive police investigation and the findings
of other courts in and about the death of Mr Chappell which
has sufficiently disclosed the identity of the deceased
person, the time, place, cause of death, relevant
circumstances concerning the death and the particulars
needed to register the death under the Births, Deaths
and Marriages Registration Act.
I repeat that section 25 (4) of the Coroners Act 1995 does
not permit a coroner to make any finding inconsistent with
the result of the criminal proceedings. In my view a full
public inquest could only be contemplated if fresh evidence
was forthcoming which either made it unlikely that Mr
Chappell was dead and/or that Ms Neill Fraser was his killer
and/or that he had died in other circumstances and/or it may
be reasonably possible to comment on any matter connected
with the death including the administration of justice. I
am not so satisfied.
Whether I resume the inquest or not or whether I hold a
public inquiry or not, I am still required by section 28 (1)
to make various primary findings, if possible. That
is, to find if possible, the identity of the deceased; how
the death occurred; the cause of the death; when and where
death occurred; the particulars needed to register the death
under the Births, Deaths and Marriages Registration Act
1999; and the identity of any person who contributed to
the cause of death. Further, I must, whenever appropriate,
make recommendations with respect to ways of preventing
further deaths and make recommendations on any other matter
that I consider appropriate and I may make comment on any
matter connected with the death including public health or
safety or the administration of justice, including systemic
failures that contributed to the death and deciding remedial
responses. An obvious case where this may specifically
apply may be in a work-place accident where the systemic
failures of the employer led to or caused the death of the
employee. Except in the terms of the ‘administration of
justice’ my primary duty is not to investigate or comment
upon the police investigation or the way in which the
prosecution was conducted.
Even if findings could be properly made that investigating
police had failed to properly investigate various relevant
issues, unless it could be shown those failures were
systemic, there would in almost every conceivable case be
little relevance to any section 28 findings to be made. In
any event they would have little if any relevance to having
caused or contributed to the death in this particular case.
It is clear that by the finding of guilt of Susan
Neill-Fraser the jury must have had no reasonable doubt that
Mr Chappell was deceased and that he was murdered by her on
board the vessel “Four Winds” on the night of 26/27
January 2009 and that his body was disposed of from that
place at that time and his body has not since been
discovered. None of those findings were changed by either
appeal court and it is to be noted that, at least for
sentencing purposes.
In regard to how the death occurred, there is no other
cogent material to suggest it occurred other than was found
in the criminal proceedings. In regards to the identity of
persons who may have contributed to the cause of death or
assisted in the disposal of the body, there is no
acceptable, credible or cogent evidence to suggest any
person other than Ms Neill-Fraser was involved.
Findings:
Given the findings in the criminal proceedings and the
conviction of Ms Neill-Fraser, I accept and find that Mr
Chappell was murdered by her and as a result his death
cannot be regarded as being ‘suspected’.
Having regard to the outcome of the charge preferred against
Ms Neill-Fraser and her conviction, the sentencing process
and the comprehensive nature of the investigation, I find
there is no cause for me to resume the inquest pursuant to s
25(3) or to hold any formal inquest hearing pursuant to
section 26(1).
I find that the deceased was Robert Adrian Chappell, born on
2 December 1943 in the United Kingdom. At the time of his
death he was usually resident at 7 Allison Street West
Hobart and was employed as a medical physicist at the Royal
Hobart Hospital.
I adopt the findings in the criminal proceedings that Mr
Chappell was killed following an attack by Ms Neill-Fraser
when they were on board the vessel Four Winds when it was
anchored at Battery Point in Hobart and that he must have
been either dead or deeply unconscious when his body was
placed into the sea at or near that place. The cause of his
death by asphyxia due to drowning cannot be ruled out.
I find that his death occurred somewhere between late
afternoon/early evening of 26 January 2009 and the early
hours of 27 January 2009.
There are no other relevant findings I need to make or to
provide any other particulars to register his death under
the Births, Deaths and Marriages Registration Act 1999.
I can make no findings that any person other than Ms Susan
Neill-Fraser, contributed to the cause of death of Mr
Chappell.
There are no systemic issues which require further
exploration or possible recommendations with respect to ways
of preventing further deaths. There exists no reasonable
prospect that the holding of a formal inquest hearing could
further the aims of the legislation in having reportable
deaths properly, independently and impartially investigated
in the public interest.
In this case a formal inquest hearing does not represent a
valid justification for the utilisation of Court time and
resources and, certainly not least, subjecting next-of- kin
to the rigours of a public hearing.
I now conclude this inquest by offering my sincere
condolences to the family of Mr Chappell and hope these
findings can lead to the earliest possible closure of their
grief.
DATED: 17 day of January 2014.
Glenn Alan Hay
CORONER
Police suspect foul play
in missing yachtsman case
Posted 37 minutes ago -
January 28th, 2009 - ABC
Tasmanian police are looking at the
possibility of murder in the case of yachtsman Bob Chappell
who disappeared from a boat moored at Sandy Bay.
Detectives say the 65-year-old man's yacht was
sabotaged.
They have grave concerns for the welfare of Mr
Chappell who has not been seen since Australia Day.
At the time he was renovating his 16-metre ketch at
Marieville Esplanade and it is understood he decided to
spend the night on board.
Police received a report the yacht was taking on water
early on Tuesday.
Detective Inspector Peter Powell says investigations
point to foul play.
"Certainly someone's deliberately tried to sink the
vessel, as to who that might of been or why we're not sure
at this stage," he said.
Police divers are back in the water today doing more
searches and there are foot patrols of the foreshore.
