Dear Brian Wightman, Attorney General of Tasmania
cc The Hon Lara Giddings MP, Premiere of Tasmania
Thank you for your letter dated September 16 (received by email October 1), in response to my concerns about the murder conviction of Sue Neill-Fraser. Please note that I am writing to you as a concerned citizen and a keen observer of democracy. I am not a ‘supporter’ of Neill-Fraser; what I do support is the notion of justice that Australians should be able to enjoy full confidence in the justice system.
I have been told that you are a good man; this is reassuring since your high office places on you a great responsibility to help ensure that justice in Tasmania is administered fairly. Those who have taken an interest in the case of Neill-Fraser all pursue that same objective.
In your letter, referring to a potential review of the case, you say “ … there would first need to be fresh and compelling evidence to warrant a re-examination of the case … reliable …substantial …and in the context of the conviction highly probative. As matters currently stand, there is nothing before me that justifies my intervention in a properly secured conviction in our State Supreme Court.”
Firstly, with respect, I could only understand your position if you have not made yourself familiar with the details of the investigation and the transcripts of the trial.
Secondly, while fresh and compelling evidence exists aplenty, the profile of the investigation and trial of this case makes it abundantly clear to any reasonable person that there has been a gross miscarriage of justice and that your discretion allows you to order a full and independent judicial review of the case as a whole, from beginning to end.
Among the reasonable and eminent persons who believe such a miscarriage of justice has occurred are Chester Porter QC and Stuart Tipple (both with highly relevant professional experience), Dr Robert Moles (author of Forensic Investigations and Miscarriages of Justice, Irwin Law, Toronto, 2010), Robert Richter QC and Bill Rowlings of Civil Liberties Australia. You may dismiss me as a layman who is ignorant of the law, but you can not dismiss the views of those to whom I refer above.
It is clear from Martens v Commonwealth of Australia, that it is not appropriate to use the test of “fresh and compelling” evidence on consideration of a referral of a case to the court of appeal. The article here explains in detail why that is so: http://netk.net.au/CrimJustice/FlindersLJ2012.pdf
It is not uncommon for recent appeal cases to disclose a wide range of errors which had occurred at trial, as for example R v Wood and R v Gilham in the NSW Court of Appeal.
As to finality – which you have cited as another barrier to further examination of the case – I draw your attention to this brief but eloquent comment from Professor Graham Zellick, CBE, QC, Chair of the CCRC, “The Causes of Miscarriage of Justice”, Medico-Legal Journal 2010, vol 78 part 1, 11-20 at 12:
“There is no principle of finality. If it is thought that a mistake may have been made, the public interest demands that it be put right … the principle of finality has no place in the criminal law, not in our system.”
Let me now cite just three examples from a long list that go to the question of the safety or otherwise of the Neill-Fraser conviction to make the point that a miscarriage of justice is blatantly evident:
The prosecution presented a hypothesis that Neill-Fraser used a wrench to kill Chappell, in some detail (eg hit him over the head once, or maybe twice) but did not produce a wrench in evidence, nor is there a body on which injuries of that kind could be proved. The wrench was repeatedly mentioned by the prosecution, as well as the judge. Clearly, this implanted a strong but false and prejudicial impression on the jury. This type of error is similar to that which occurred in R v Mallard in Western Australia.
THE BLOOD STAINS
Blood stains on the Four Winds were consistent with Chappell’s nose bleeds, not with a head injury from a wrench, yet the jury was encouraged to believe otherwise. The presumptive test for blood in the dinghy (in which, according to another hypothesis of the prosecution, Neill-Fraser dumped the body) was presented to the jury as proof of the presence of blood. No blood was found in the dinghy yet the jury were unaware of that. This matter alone should have caused a mistrial. Of course, the results of presumptive tests should not have been admissible, as they are not probative of the facts in issue. This is the type of error which occurred in the IRA bombing cases in the UK and in the Lindy Chamberlain case in Australia.
The reliability of the witness Triffett, who claimed to have known of Neill-Fraser’s plan to murder Chappel (denied) was not adequately tested; relevant information about his arrangements about charges against him with police was kept from the jury.
CHESTER PORTER QC
Last week, he said publicly:
“There are very substantial doubts about this case. I can put it this way. It would not have been at all surprising if the jury had acquitted this lady because the evidence was so weak against her. But with the additional evidence that is now available, it is hard to see how any conviction could stand.”
I do hope that Mr Porter’s opinion provides the Tasmanian Government with the final impetus to act – preferably in the immediate future.
And finally, a sobering thought from Dr Robert Moles, in the context of evaluating the new statutory right of appeal in South Australian criminal cases:
“For around 100 years, the criminal appeal rights in Australia have been in “common form”. Recently, the Australian Human Rights Commission expressed the view that they failed properly to protect the right to a fair trial or to provide an adequate process for a person who has been wrongfully convicted or who has been the subject of a gross miscarriage of justice to challenge their conviction.”
I look forward to your considered response,
Andrew L. Urban