Abuse of Power – Tasmania style

Andrew L. Urban.

With great power comes great responsibility, no? No. Not in Tasmania, it seems, where through the example of the Sue Neill-Fraser case, we see the State’s legal apparatus shown up to be anything but responsible. Police abuse their powers, the DPP dismisses DNA evidence and the leaders of the Government ignore vital new information.

When police raided Sydney production company CJZ in November 2018, they collected over 500 hours of raw footage which investigated the disappearance and probable murder of Bob Chappell. The raw material was edited into the 6 episodes of Undercurrent on the Seven Network (except in Tasmania) from January 30. The raid was intended not to discover any new evidence but to find the filmmakers in an act of perverting justice.

“It is always a concern when rushes and unedited footage go outside the immediate production team,” says CJZ CEO Matt Campbell. “Hence we were very concerned when we heard the Tasmanian Police Force were intending to seize the footage.  Our main concern from then on, was for the people in the footage.  We also had to make sure we had copies of all the material so that the seizure didn’t impact the production process.  The difficulty for anyone doing this kind of production (or even a podcast) is that there are no protections for investigative journalism in Australia.  It is possible for such a seizure to happen and if the producers are not prepared for that, it could be disastrous.”

Campbell adds: “We have the greatest respect for the police, but in these circumstances, it felt that it was only our team which had an open mind about the guilt or innocence of Sue Neill-Fraser.  That was the purpose of the series – to explore the truth.”

Producing the series was Eve Ash, who says she “felt violated … and worried for the people who we had given our word to protect…who had given us confidential information. I was frightened for the safety of our own team. Why did they need hundreds of hours of my work? Why didn’t they do their own work? And why didn’t they thank us for the work we had done. I was also shocked that three of my staff were contacted by TasPol, and one of them was visited by a TasPol officer – at their home in Melbourne.” Some people might consider that to be intimidation, given the circumstances.

The police demanded all the footage shot by Missing Man productions (Eve Ash’s company), who worked with CJZ Productions on Undercurrent. How did they know about it? Phone taps. Who authorised that process?  On what grounds was a warrant issued? On what grounds was the footage seized?

“Surveillance and secret phone tapping of a film crew, seizing 500 hours of film footage? Civil Liberties Australia believes the underhand purpose of this police bastardry is to try to protect Tasmania police’s own reputation,” says Bill Rowlings, CEO of Civil Liberties Australia (below, with CLA President Dr Kristine Klugman). “Their actions meant witnesses could no longer give their planned evidence freely and fairly in a Supreme Court appeal case; the police misbehaviour resulted in the threat of criminal charges hanging over witnesses and potential witnesses.

“We think TasPol has itself perverted the course of justice by its latest ploy,” Rowlings says. “It should – and must – be for a Supreme Court judge to decide whether the affidavits and evidence given by a witness is reliable. The police have no place misusing their powers, and abusing the intrusive search warrant process, by manipulating the law maliciously to their own ends.

“In this case they have usurped the right of the court to decide truth. I believe police have acted this way because the competence and reputation of the police themselves would be at serious risk if witnesses had been allowed to give their evidence free of intimidatory police behaviour.

“The Sue Neill-Fraser case is crying out for a full, open and public state inquiry. When that happens, TasPol misfeasance, malfeasance and nonfeasance will be exposed to Tasmanian citizens. Everyone will be shocked by how badly they have been let down by their own police force, and by what I believe is twisted manipulation of the legal system, the prosecution office, the courts and even some of the media to try to salvage their reputations over a botched investigation a decade ago,” Rowlings says.

The police have been joined in their efforts to hide the truth not find it in the case of Sue Neill-Fraser, by key players of Tasmania’s legal establishment. The Tasmanian politicians responsible for providing oversight of the administration of the law are shown to be failing miserably in their responsibility. Author Colin McLaren discovered this while researching his new book, Southern Justice (Hachette).

dossier ignored

He writes: “Naively, I compiled a dossier of over fifty pages, highlighting the flaws in the investigation and the mountain of missed evidence. I thought Tasmania’s head lawmakers might welcome having this debacle brought to their attention, and perhaps undertake a fresh and independent investigation.

“But once my dossier was handed to those in power, they did not accept it. Those high up in the police and political hierarchy ignored what I had found,” writes McLaren, a book in which he often reveals his anxious state of mind, his deeply felt concerns for Neill-Fraser, her family and key witnesses – and his worrying heart condition, not helped by being hunted for seeking the truth.

“In 2017, the police were applying pressure to those who dared have a different opinion about the death of Bob Chappell,” he writes. “Their adversarial thuggery was at its height towards the later part of the year, when they alleged that our interview with (key witness) Meaghan (Vass) in the hotel room in Hobart had been filmed under duress. The claim, accompanied by a not so subtle threat, was first made in a letter to her lawyer.

“Trouble is, the defence obtained a signed statement from Snapper (a Vass friend), in 2018, in which he recalled going to Sharyn’s house (another friend) with Meaghan and meeting (solicitor) Jeff Thompson. He said that Meaghan went through her evidence carefully with Jeff and signed the statement, making it clear that she and others were on the yacht. There was no hint of duress; it was just a fair and honest statement-taking process.” (Vass’ DNA was found on the deck; she has made conflicting statements about having been on board. The DPP had always downplayed the DNA evidence, referring to it in court as a ‘red herring’ and dismissing it as of no importance in the High Court, when objecting to Neill-Fraser’s quest for an appeal.)

The whole experience has left McLaren with a dim view of Tasmania. ” …while the days of Tasmania’s penal settlement and its convicts have ended, it seems to me that the colonial system of justice in that state has not. You could swear Tasmania never went through any reforms. Sure, the convicts died off, but their system of justice appears to remain. I can offer no other explanation for the mess surrounding Sue Neill-Fraser’s wrongful incarceration.” (McLaren might be darkly amused to learn that the Coroner had referred to Neill-Fraser in his report as ‘the convict’ …)

“No other city in Australia pursues the twin ideals of incompetence and corruption with quite the same enthusiasm as Hobart. When it comes to asinine administration,” snorts McLaren on page 289, “the Tasmanian government is in a league of its own.”

The tragedy is that these disturbing failures of our adversarial system are so well known they are even documented for law students. For example, in the study book, Criminal Laws in NSW(The Federation Press), there is an incisive exploration of the underlying issues, in a section titled The Adversary System and the (In)Visibility of the Pre-Trial Process. In the introduction, it states: Courts have traditionally been reluctant to enforce duties of disclosure, ethical duties of fairnessand otherwise ‘intervene’ in what is described as the largely discretionary accountability mechanisms which affect the conduct of the police and the prosecutorial functions.

That, surely, is a very disturbing aspect of our legal system.

In the following section, ‘Police control over pre-trial processes’ there is a lengthy extract from Travesty! Miscarriages of Justiceby K. Carrington. Here are a couple of relevant snippets:

The real source of difficulty lies in the effective control police exercise over the prosecution process. Police are required to fulfil both an investigative role – seeking to inquire into criminal events to establish what happened – as well as an accusatory role – gathering evidence which will secure a conviction against a person or persons who they have decided is responsible for a particular crime.

The requirement on police to gather evidence which will secure a conviction almost invariably shapes the direction of their investigations from an early stage, especially where the major reward systems influencing police are centred on making arrests and gaining convictions. These normal pressures are likely to intensify, both within the police organisations and from outside, in cases of a serious nature … there is an impetus to gather evidence which will confirm guilt and eschew evidence suggesting innocence.” (In common parlance, that’s tunnel vision.)

Michael McConville, in an article written soon after the Guildford Four were released, lucidly describes the mechanics of the British justice system that inevitably produce miscarriages of justice: … ‘the effects of many of these police decisions and practices in the pre-trial process will not be apparent to the defence or the court. It will often only be as a result of a royal commission or other official enquiry that they will come to light.The adversaries in this process command wholly unequal resources: the authority and resources of the state (primarily the police) are pitched against those of individuals of usually less than modest means.

It is not simply cynical fabrication of evidence by police that is problematic. Rather it is the taken-for-granted power police exercise over routine evidence gathering in circumstances where they’re required both to initiate the criminal process by investigating crimes and secure convictions by constructing the prosecution case. This role is carried out without clear, precise and enforceable rules and mechanisms of accountability. The courts, the news media and popular common sense tend to legitimate this power and its lack of accountability. Courts in Australia generally overlook policing improprieties and illegalities in the gathering of evidenceif they’re regarded as contributing to the successful apprehension of suspects. Police officers are rarely prosecuted or disciplined for perjury or other misconduct in the course of criminal prosecutions.(all emphasis added)

These matters referring to police investigation culture are at the top of the list of reforms that are needed to ensure a fairer system of criminal justice, to help reduce the incidence of wrongful convictions. Unfortunately, there is no evidence that any elements of the legal system are prepared to engage with serious reforms.  They are – literally – a law unto themselves. They must not abuse that power.