The costs of injustice

By Andrew L. Urban

She is wheeled into the clinical surrounds of the Supreme Court in Hobart in a wheelchair and positioned in front of the empty jury benches, facing the witness box. Sue Neill-Fraser’s demeanour is low key, her little smile vague. It’s October 2017 and she’s been in prison since her arrest more than eight years earlier, in August 2009, when she was a healthy 55 year old. Two prison officers escort her.

The public gallery is full of her supporters and the media. In front of them are the two costly barristers and their two expensive associates, the two instructing solicitors – and scattered around the court, the wage-earning court staff. Sitting in his elevated isolation is Judge Michael Brett, presiding over Neill-Fraser’s appeal. Well, not her actual appeal, her request for leave to appeal.

There have been three or four directions hearing over the previous 12 months, trying to set the legal grounds for the hearings as well as suitable dates, three days of witness examinations in October another day in February 2018 and three days in early March 2018.

If leave is granted, the whole appeal rigmarole will be replayed for a full bench of three judges, enabled under recent amendments to the Tasmanian criminal code that now allows for a further right to appeal subject to fresh and compelling evidence.

Of course, all this was preceded by a lengthy police investigation, followed by a month long trial, an appeal to the court of criminal appeal and a request for leave to appeal to the High Court (not granted).

Neill-Fraser is serving a 23 year sentence for the 2009 murder of her partner Bob Chappell, which she vehemently denies. In the absence of hard evidence (and without a body), the prosecutor literally manufactured a murder scenario by speculation. To many legal observers such as Adelaide based author on wrongful convictions, Dr Bob Moles, the case is a clear miscarriage of justice.

And it’s an expensive one. In the latest quest for an appeal, police have set up a dedicated task force to monitor – and in some cases charge – potential witnesses, including a solicitor. Further costs were incurred when on behalf of Tasmania Police, NSW police raided the offices of CJZ Productions in Chippendale and seized some 250 hours of footage shot for a Seven Network crime series by Eve Ash, who made Shadow of Doubt, which reveals some gaps in the original police investigation surrounding Bob Chappell’s disappearance in 2009. The raid plus the viewing and transcribing costs are added to the total bill paid by taxpayers. (At the discount rate of $3.20 per minute, transcription costs alone would run to $48,000.)

The current DPP is fighting hard to keep the appeal from going ahead. It’s the legal system’s self protection on an industrial scale on show.

Taxpayers around Australia are underwriting the results of wrongful convictions to the tune of many millions of dollars, not to mention the costs of unpunished perpetrators posing further risks to the community, nor the personal costs involved in convicting the innocent.

Sue Neill-Fraser case, Tasmania: $?? million
A police investigation including lengthy secret surveillance of the house, a jury trial, an appeal, a plea to the High Court, a further plea for leave to appeal … possibly a full appeal court hearing…. And if eventually successful and released from prison, Sue Neill-Fraser might well be advised by her lawyers to sue the State of Tasmania for compensation. No matter which party is in Government after the March 3, 2018 election, that would not be welcomed by Treasury.

David Eastman case, ACT: $27 million
Eastman was convicted in 1995 of the murder of Assistant Commissioner of Police Colin Winchester. On August 22, 2014, the conviction was quashed and a new trial ordered, by which time Eastman had served almost 20 years of a sentence of life imprisonment. The DPP is proceeding with the retrial. The costs of the trials are reported by the Canberra Times as something in the order of $27 million. The ACT Budget sets aside $5.103 million for the trial in the current year (2018) and in addition $3.028 million is allocated to the Office of the DPP, an undisclosed portion of which relates to the Eastman prosecution.

Why is the DPP proceeding? There are three possible outcomes, as Canberra barrister G. A. Stretton SC points out:
1) Eastman is convicted. As he is now 72 and has already served the best part of a life sentence surely a court is unlikely to impose a further penalty.
2) Eastman is acquitted. That would raise compensation questions which would likely be very costly.
3) A jury cannot agree, in which case there must be a retrial or a discontinuance of the prosecution.

Note: The DPP had withheld information they should have passed over to the defence (inadvertently, they claimed) and the AFP failed to disclose serious flaws in the practices and evidence given by their chief forensic witness in relation to bullet residue.

Lloyd Rayney case, WA: $13 million
Lloyd Rayney, after being acquitted of murdering his wife, Corryn (both at the original trial and then at an appeal conducted as a ‘re-trial’, in 2016), sued the WA Government for defamation.

The defamation action centred on comments made by senior police about six weeks after the murder of Rayney’s wife, Corryn, in August 2007. Rayney was described to a media conference by Detective Senior Sargeant Jack Lee (since promoted to Inspector) as the “prime” and “only” suspect in the case on 20 September 2007.

Rayney sued the State of WA for compensation over the trashing of his reputation and his business, effectively by the WA Police. Rayney had been a well-known and respected criminal barrister … with a record of defending police.

On 15 December 2017, Judge John Chaney found for Rayney, and awarded him more than $600,000 for loss of reputation. On 20 December, the judge awarded additional sums for economic losses and interest, bringing the total award to $2,623,416. And the total cost (including both trials and the defamation action) to the taxpayer of this wrongful conviction is estimated at $13 million.

Gordon Wood case, NSW: $20 – $40 million
Supreme Court 9d (predictably enough on the 9th floor of the Law Courts building in Sydney’s Queens Square) its windows at the rear of the room looking out onto another modern city building, its blank eyes expressing nothing. But inside, it was high drama as Gordon Wood’s legal team was busy turning him from prey into hunter, in a case of malicious prosecution against the State of NSW and the DPP’s office, notably its senior counsel, Mark Tedeschi.

There was certainly nothing outside the windows to distract the bench, where Her Honour, the razor sharp Justice Elizabeth Fullerton was the only one facing the windows. In front of her on either side of the central podium sat the plaintiff’s team, led by Barry McClintock SC; adjacent to them sat the team representing the State of NSW, led by Peter Neill SC. (McClintock was the barrister acting for then Federal Treasurer Joe Hockey in the successful 2015 defamation case against Fairfax Media.)

McClintock would twirl the long flaps of his gown around his hands, remove his wig occasionally to briefly air his sparse scalp and lean on the lectern.

Behind his barrister’s team sat Gordon Wood, and next to him, his solicitor Bill Kalantzis. Court staff brought the payable head count to 12; for three weeks.

Gordon Wood was convicted in 2008 of the murder of Caroline Byrne, whose body was found early morning on June 8, 1995, on the rocks at The Gap, a notorious suicide spot on Sydney’s Eastern coast. In 2012 the Court of Criminal Appeal set aside his conviction and entered a verdict of acquittal. The Chief Justice made it clear in his judgement that even the most basic elements of the case had failed to be established.

Given that this latest (civil) trial was concluded in March 2017, Justice Fullerton’s reasons are expected early in 2018. If she finds for Wood, she will award some damages – even if not all of the $20 million he claims. Together with the costs of his trial and appeal, this case will be recorded as one of the most expensive miscarriages of justice in Australian legal history. Just one of them !

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