Former Premier & AG calls for Criminal Cases Review Commission

Former Tasmanian Premier Lara Giddings officially launched Andrew L. Urban’s, Murder by the Prosecution (Wilkinson Publishing) on September 6, 2018 at Fullers Bookshop in Hobart, calling for the establishment of a Criminal Cases Review Commission and stating that the provisions of new, further right to appeal legislation “set the bar too high” to be truly effective in delivering justice.

Below we publish Lara Giddings’ remarks in full, followed by the remarks presented at the launch by Sarah Bowles, daughter of Sue Neill-Fraser, whose controversial case forms the bulk of the book. (See full details of the Neill-Fraser case.)

LARA GIDDINGS:
Thank you Andrew for asking me to launch your book tonight. It is a pleasure to be here with so many people to support you.

Lindy Chamberlain – Evil Angels
My interest in miscarriages of justice began as a high school student. I remember in my year eight class in 1986, strongly arguing the innocence of Lindy Chamberlain, who had recently been released from prison after the discovery of Azaria’s matinee jacket. I had read John Bryson’s book Evil Angels and was outraged at the injustice of her treatment, trial, conviction and appeals. She had been let down by our justice system and the people who work within it. This case triggered in me a desire to fight for truth and justice through the law.

Gerry Conlan – In the Name of the Father
In 1993, two years into my law degree, I watched a movie called In the Name of the Father, based on the true story of Gerry Conlan, one of the Guildford Four. Three men and one woman, arrested, charged and found guilty of the 1974 bombing of the Guildford pub.

Forced confessions using torture, evidence withheld from the defence, statements tampered with and witnesses not called, all led to their imprisonment with life sentences in 1975. Their application to appeal was refused. It wasn’t until fourteen years later that they were set free as the police impropriety was brought to light. They were let down by the police and by the courts, who failed to protect innocent people.

This film was so powerful for me, that I almost walked away from my law degree, feeling disheartened that the justice system I had had such belief in could be so manipulated and corrupted.

Michael Peterson – The Staircase
This year, I have been equally dismayed, outraged, disheartened and left in disbelief over the case of Michael Peterson in the US, told through the Netflix documentary series, The Staircase. Peterson was convicted of the murder of his wife found dead on the staircase in their home in 2003. The case was solely based on circumstantial evidence, including the prosecution relying on a weapon, supposedly used to kill, that police failed to find in their search of the premises, but later found by the defence team untouched for years, and faulty forensic evidence around the victim’s head injuries and blood splatter that didn’t hold up to peer review. He was released in 2011 but kept under house arrest until 2014. He continued to fight for his innocence, but ended up in 2017 having to plead the Alford plea, a guilty plea where you still maintain your innocence, just to bring the case to an end.

“There but for the Grace of God Go I”
With miscarriages of justice comes the saying “There but for the grace of god, go I”. If it can happen to Gerry Conlan or Michael Peterson or closer to home, Lindy Chamberlain, Henry Keogh or Gordon Wood, and even closer to home, as Andrew Urban’s Book I am launching today, Murder by the Prosecution, argues, has happened in the case of Susan Neill-Fraser, it could happen to you or me.

Murder By the Prosecution
Murder By the Prosecution takes you on Andrew’s journey of how he came to be so disheartened, disappointed and angry at our justice system leading to, as he puts it, his “obsession” with miscarriages of justice. After all, as he says in the book “Each one centres on a person, a life unjustly ruined and its consequences on entire families, circle of friends and careers.”

While most of the book centres around the Tasmanian case of Sue Neill-Fraser, it also outlines several other cases such as Henry Keogh’s and Gordon Wood’s, in an accessible way for the lay person.

This is not a legal textbook. It does not discuss the intricacies of the law.

It is an easy book and a compelling book, to read – even the demands of a seven-month-old baby could not get in the way of me finishing the book in time for this launch.

The book focusses on the extraordinary Tasmanian case that has left many of us believing that a miscarriage of justice has occurred. And when I say ‘us’, I include the hardworking dedicated people of the Susan Neill-Fraser Support Group who sit alongside imminent legal minds like Deputy Senior Crown Prosecutor from NSW, Margaret Cunneen SC, who wrote the foreword to the book, legal expert Dr Bob Moles, Robert Richter QC, Chester Porter QC, Lindy Chamberlain’s lawyer, Stuart Tipple, and me, a former Attorney-General.

Miscarriages of justice can leave you feeling despondent, angry and powerless. If you are to get any heart out of the book, it is that the problems we see in Sue’s case are not special to Tasmania’s criminal justice system. Problems occur in every other state in Australia and around the world. We are not special.

The fact is people and the systems they work within are fallible.

But, the book doesn’t just highlight problem cases, it looks at how we can reduce the risk of sending innocent people to gaol and for those languishing within prison walls already, how a Criminal Case Review Commission could help them seek justice.

The book’s main focus in on the Sue Neill-Fraser case, a case built solely on circumstantial evidence as there is no body, no weapon, no motive and no forensic evidence to link the accused to the crime.

Although if you listened to the prosecution in the trial, you would think there was a body and a weapon as the prosecutor put to the jury that Sue had hit Bob Chappell with a wrench or screwdriver to the back of his head, winched his body up from below the decks of the boat, weighed him down with a fire extinguisher and placed him in a dingy, (noting there was no blood in the dingy) and then dumped his body in the depths of the River Derwent.

The case relied upon a witness who was known to be antagonistic towards Sue and Bob and who was at the time negotiating with police around his own criminal charges.

Andrew takes us through the case having had his interest awakened through the documentary by Eve Ash, Shadow of a Doubt. I will leave it to him to tell you more.

My role as Attorney-General and Premier
So how is it that a person who can be so concerned about miscarriages of justice, be an Attorney-General and Premier during the case that continues today with so many question marks and seem to do nothing about it?

Firstly, let me assure you the case was never far from my mind – my mother, as Secretary of Sue’s Support Group, ensured that at every Sunday night dinner I was given an update. In addition to mum, I kept abreast of progress on the gathering of further evidence through the tireless and magnificent work of Barbara Etter, who was working pro bono for Sue. There were many times I would have liked to have been able to comment publicly, but I couldn’t!

The answer why, lies in the separation of powers doctrine that underpins our democracy. That is, our constitution distributes power across the parliament, executive and judiciary to avoid anyone group having all the power. The parliament thus creates the law, the executive puts the law into action and the judiciary makes judgements about the law. Therefore, politicians must keep out of the business of our courts and much of my time as Attorney-General the case was before the courts.

The last thing I would want to see in Australia is the politicisation of the legal system as we see in the United States, where even the Prosecutor can be an elected position and thus, held ransom to the pressure to be populist on law and order issues. See The Staircase for a case in point.

Politicians in Australia are not however, totally absolved from some role in the legal system as an Attorney-General has the power to recommend a Petition of Mercy.

But, you only have to read in Andrew’s book the difficulty politicians have in making decisions around a petition of mercy, or indeed read Dr Peter Patmore’s controversial article this week in the Mercury around Cabinet’s decision to not release a prisoner, to see how ineffectual politicians are in this area. Being seen to be strong on law and order is unfortunately a part of our political discourse, no matter how hard some of us have tried to argue otherwise.

While politics should remain out of our courts, it does not however abrogate politicians from all responsibility, after all they are the ones who can change the law or establish a Royal Commission or even better create a Criminal Case Review Commission.

In the case of South Australia, while the former Attorney-General Hon. John Rau is criticised in the book regarding the Keogh case, he was the AG who made the legislative structural change that enabled Keogh to have a second appeal. Tasmania has followed this lead with the right in the Criminal Code to a second appeal where there is fresh and compelling evidence and a substantial miscarriage of justice. The bar is however high – I would argue too high to adequately provide for all miscarriage of justice cases.

Miscarriages of justice can happen for a myriad of reasons – all are valid – police tunnel vision, prosecution tunnel vision, defence lawyer’s weakness, judges overlooking points of law, unreliable forensic evidence – yet when all avenues of appeal are exhausted, you still need fresh and compelling evidence to have your case heard again, regardless of any injustices with the initial trial and appeal processes.

We remain to see whether the fresh and compelling evidence high bar can be overcome in the case of Sue.

Future reform – Criminal Cases Review Commission
In the meantime, I support the need for further reform. We should have a national Criminal Cases Review Commission such as can be found in the United Kingdom. The UK Commission can investigate cases of alleged miscarriages of justice without requiring fresh and compelling evidence. It has the power to send a case back to the appeals court, which has seen over 350 convictions overturned, that is 350 innocent people have now been freed.

As a national body may take years to achieve, I see no reason why the State Government cannot establish a like body independent of the police to investigate alleged miscarriages of justice. Perhaps this body could be under the auspices of the Integrity Commission to minimise administrative costs, with expertise brought in as and when required to investigate cases.

Conclusion
Andrew hopes that his book will help to raise awareness of miscarriages of justice and ignite community anger at what is happening in our own back yard. I hope he achieves his aim and I congratulate him on this thought provoking, informative and alarming book.

Wrongful convictions do occur and will occur – no system is perfect – the problem with wrongful convictions is that while an innocent person rots in prison, the real murderer remains at large.

It is with pleasure that I now officially launch Andrew Urban’s Murder by the Prosecution.

SARAH BOWLES:

It is so much easier for people to believe mum is guilty than to think of the horror of convicting an innocent person of murdering their partner of 20 years. If one can entertain the idea of her innocence, they must also be forced to think of the monumental effort it takes to shine a light on the issues that have resulted in an injustice.  For many, this is just too hard to comprehend- it challenges the concept that we can have faith in our police and the judicial process. It is a frightening prospect!

Mum has made a memorial garden in the prison for Bob. She frequently goes there to speak to him and reflect on their lives together. She recently said to me that she can still picture him so clearly standing in the kitchen at home, beer on one side- pipe in his mouth, cooking some amazing new recipe. Bob loved to cook. I have many of his cook books and it is bitter sweet feeling to come across his handwritten notes in which he amends the recipe to suit their taste.

Our lives have been derailed in the most intense and horrific way.

I just hope that one day lessons are learnt to ensure no family suffers as we have. Reform is required.

I speak with mum nearly ever day on the phone. Our calls are monitored and cut out after 10 minutes. I can’t call her so I often wait anxiously for the phone to ring. For a long time I tried to prevent my 5 year old daughter from answering the phone to avoid her hearing the pre-recorded preamble: “This call originates from an inmate of Risdon Prison” I hoped this nightmare would be over by the time she was old enough to understand but unfortunately, the inevitable questions have started arising ‘mummy, Susu must not like me because she won’t come to Grandparent Ballet day’ or ‘Why did the police ‘do the arresting’ of Susu, if she didn’t break the rules? Was she driving with her hands off the wheel?’ I answer as dispassionately and as basically as I can- she does not need to realise the pain that such questions illicit.

Andrew’s book gives me comfort as one day Susu’s grandchildren can read it and then understand the depth of emotion associated with being trapped within a miscarriage of justice.

They will also understand from this book the obstacles and we have faced along the way to pursue the truth and find out what really happened to Bob.

ANDREW L. URBAN:
Thank you all for coming here to Fullers. My book is a bit unorthodox, a compendium of my many articles, interviews and communications about wrongful convictions over almost 5 years.

I’d like to preface my remarks by acknowledging the work of all the dedicated lawyers, from defence to prosecution, and all the overworked judges who do their ethical and learned utmost to manage our impossibly strained legal system. The best of them are gladiators of our democracy, free of political leverage, given great powers and tasked with great responsibility. I know a few of them. The separation of powers means that the legal system is answerable to no one. And therein lies the greatest challenge… recognising and self correcting errors … promptly.

A research paper by a legal academic at Griffith University’s school of criminal justice finds that there were 71 identified and known wrongful convictions in Australia between 1922 – 2015. But the full extent of the problem is debated and unknown.

I didn’t set out to write this book – it evolved after I had spent several years researching the by now controversial case of Sue Neil-Fraser, convicted in 2010 of murdering her partner Bob Chappell aboard their yacht on Australia Day 2009. That led me to discover other cases of serious crimes – cases where convictions had been overturned, sometimes only after many years.

As a journalist, my interest and research into these cases provided a valuable learning experience about aspects of criminal law and trials.

For instance, I learnt that in a circumstantial case a guilty verdict can only stand if there is no other rational explanation consistent with the innocence of the accused.

In Sue Neill-Fraser’s case, for example – what if partying youths celebrating Australia Day, and or Chinese New Year and or the Regatta, on a nearby yacht, boarded Four Winds, with or without malice, a scuffle turned nasty, there was an accident and people panicked. It is one – and not the only one – possible rational alternative. Indeed, the DNA of a teenager found on the yacht supports the rational possibility such a scenario.

On this ground alone, I am told by legal academics, the rule of law requires the conviction warrants being set aside.

I learnt that the rule of law requires the prosecution not speculate to the jury without evidence.

I learnt that the rule of law requires the prosecution not say prejudicial things addressing the jury.

I learnt that the judge must definitely avoid saying prejudicial things in his summing up.

I learnt that forensic evidence must be 100% reliable and clearly explained.

I discovered in the transcripts, how in the case of Sue Neill-Fraser, the high court was dissuaded by the DPP at the time, to hear an appeal on the grounds that a stranger’s DNA found on the yacht is of no consequence, having been transferred, perhaps on the boot of a policeman. Some boot it must have been: the stain recorded by the Tasmanian forensic service was the size of a pancake, but that was not discussed.

In the book I refer to several lawyers who are deeply disturbed about the Sue Neill-Fraser case.

In the words of Chester Porter QC, commenting on the case in 2013, Tasmania’s legal system is in danger of becoming a laughing stock …if a tragic one.

(see 2 minute video of Porter)

I also quote the Chief Justice of England, Lord Igor Judge, who said on a visit to Sydney, “.. the prospect of an innocent person being convicted of a serious crime represents a catastrophic failure of the legal system.”

If my book encourages a debate about the reforms that are summarised in its closing pages, not least the need for a Criminal Cases Review Commission, it will have done its job.

I want to publicly and sincerely thank my publisher Michael Wilkinson for taking on this fight against wrongful convictions, when no other publisher dared.

I also want to thank the many, many people who have contributed to the information I have gathered along the way, all fighting for the betterment of our legal system. And we ain’t finished yet.

 

This entry was posted in General articles. Bookmark the permalink.

Leave a Reply

Your email address will not be published.

This site uses Akismet to reduce spam. Learn how your comment data is processed.