NO WITNESS. No confession. No body.
None of that matters when it comes to a “no body” murder conviction if the offender’s guilt can be determined by circumstantial or forensic evidence.
But the nature of the conviction doesn’t come without controversy and has significantly contributed to the emergence of innocence projects in Australia.
The parents of murderer Keli Lane appeared on 60 Minutes on Sunday to speak publicly for the first time, about what they said was their daughter’s wrong conviction.
Lane was convicted of murdering her two-day-old baby daughter within hours of leaving hospital in 1996. She secretly gave birth to three babies, adopted two of them out and told police she gave Tegan to her natural father, Andrew Morris or Norris, who police found did not exist. Tegan’s body has never been found.
The family’s story is one of many relating to high profile ‘no body convictions’ in Australia.
In 2010, Susan Blyth Neill-Fraser was jailed for life in Hobart for the murder of her de facto partner of 18 years, Bob Chappell.
Chappell, 65, was about to retire as the Royal Hobart Hospital’s chief radiation physicist when he went missing from the couple’s yacht Four Winds while sailing off Hobart on Australia Day 2009. The judge said Neill-Fraser killed him for money. She was jailed for 26 years with an 18-year non-parole period. Chappell’s body has never been found and Neill-Fraser maintains her innocence.
Criminal lawyer Barbara Etter — who represents Neill-Fraser — told news.com.au Australia’s legal system was in need of a shake up.
She said “right to appeal” provisions were inconsistent in Australia and that an independent Criminal Cases Review Commission, similar to one in the UK, needed to be introduced.
“New Innocence Projects are emerging here in Australia, but appealing a murder conviction, particularly after normal appeal avenues have failed, continues to be a David v Goliath battle,” Ms Etter said.
In circumstances where appeals have been exhausted and “fresh and compelling evidence emerges”, the only way to get the matter back in court, in most cases, is to appeal to the executive under a petition for mercy.
“That can be problematic and not as transparent,” Ms Etter said.
NSW, “unlike South Australia and Tasmania”, does not have legislation that allows for a second or subsequent appeal where there is fresh and compelling evidence, according to Ms Etter.
“It would seem that there would be benefit in having some consistency in the current appeal provisions throughout Australia,” she said.
Ms Etter said there was a growing concern about miscarriage of justice cases because of an increase of exonerations in the US and public debate surrounding the US case of Steven Avery and his nephew Brendan Dassey, who featured on the Netflix docu-series Making a Murderer.
She said Australia needed “to look at other mechanisms to enable those who may have been wrongfully convicted to get their matters back before the court in a reasonable time frame”.
Lindy Chamberlain was at the centre of what is arguably Australia’s most famous ‘no body conviction’ case.
Chamberlain was jailed for the murder of her infant daughter, Azaria, and later acquitted when evidence was found that proved her story about a dingo taking her baby.
Chamberlain is believed to be the only person convicted of a murder without a body to have their conviction overturned.
The Shark Arm Case in 1935 is known as probably the first in which someone was charged with murder without a body, the Daily Telegraph reported.
In this case, there was only the arm of the victim vomited up by a 4m tiger shark held in Coogee Aquarium Baths. It had been cut off, not bitten, and fingerprints identified it as having belonged to SP bookie James Smith.
His best friend Patrick Brady was charged with murder, but the only evidence the prosecutor could present to the jury was that Smith was last seen drinking with Brady at a Cronulla pub and that he had told police a stack of lies about his whereabouts and movements. The judge directed the jury to acquit. Brady has since died.
Other cases of ‘no body convictions’ where the bodies are still missing:
Convicted: Bradley John Murdoch. Victim: Peter Falconio.
British tourist Peter Falconio, 28, disappeared in 2001 while driving with girlfriend Joanne Lees in their Kombi van on the Stuart Highway near Barrow Creek in the Northern Territory. Lees said they were flagged down by a man who shot Peter dead and kidnapped her before she escaped. Murdoch, 52, was convicted in 2006 and jailed for life. Falconio’s body has never been found. The case inspired the movie Wolf Creek.
Convicted: Paul Wilkinson. Victim: Kylie Labouchardiere.
Labouchardiere, 23, arrived in Sydney with two packed suitcases for what she thought would be a new life with her married lover Paul Wilkinson. Instead of leaving his wife, Wilkinson, 34, murdered Kylie in April 2004 and later tried to cover his tracks by burning down the rental house he shared with his wife. He was jailed last year for 28 years, with a minimum 24. Kylie’s body has never been found.
Convicted: Sudo Cavkic, Costas Athanasi and Julian Michael Clarke. Victim: Keith William Allan.
Cavkic, Athanasi and Clarke were found guilty in 2007, after a third trial, of the contract killing of Allan, 53, who disappeared in May 2000. Clarke, a law clerk in Allan’s Avondale Heights office, took up to $560,000 from a trust account to finance his gambling and that of his partner and another associate. To stop Allan finding out, he procured Athanasi to recruit a killer, and Cavkic was brought in. Allan’s body has never been found.
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