Chappell, Robert Adrian
I, Glenn Alan Hay, Coroner, have investigated the death of
Robert Adrian Chappell
Formal findings I have made can be found at the conclusion of this document.
REASONS FOR DECISIONS AND FINDINGS AND GENERAL COMMENTS
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.
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."
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.
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.
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