Qld & Vic prosecutors set example for Tas prosecutor

Dr Bob Moles & Andrew L. Urban. 

It was made clear last night on the SBS program Insight – Wrongfully Convicted Part 2 (September 3, 2019), that the prosecutor in the Queensland case of Frank Button recognised that a significant error had occurred in relation to the DNA evidence in the case. As a consequence, the prosecutor ensured that the case was before the Court of Appeal within 24 hours.

In its judgment, the appeal court judges made it clear that Mr Button had been wrongly convicted. The judgment opened with the words, “…today is a black day in the history of the administration of criminal justice in Queensland”.

The Court expressed approval of the fact that the DPP had put in train the necessary processes to ensure that an enquiry would take place to find out what had gone wrong.

The appeal court judgment is but a single page – it does not cite any case-law or legislation in its judgment. It merely says that an unacceptable error had occurred, that it ought not to have happened, the fact that it did was most regrettable, and that not only must the conviction be overturned, but that everyone should know that Mr Button is innocent of this crime.

Short – simple – effective.

The judgment is here

Further details on his case are here: 

Previously in the Victorian case of Mr Farah Jamah, it became clear that his conviction had been based upon misleading interpretations of the DNA in his case. Once the prosecutor had identified the fact that such an error had occurred, he took steps to ensure that the case was put before the Court of Appeal at the next available opportunity. The judgment of the appeal court was but a single sentence, ‘The Court, having read the materials filed by the parties and having considered the submissions and concessions of the Crown, is satisfied that it is appropriate to order that the conviction relating to the applicant be set aside and a verdict of acquittal be entered.” The Court then formally stated the orders setting the conviction aside.

The judgment is here: 

Further details on the case are here: 

Mr Jamah had spent some 6 months in custody. Mr Button had spent 10 months in custody. In each case the prosecutors said that it was shocking that an innocent person could have been imprisoned for so long,

DNA evidence misrepresented

Susan Neill-Fraser has been imprisoned for over 10 years. In addition to DNA evidence given at her trial which had been clearly misinterpreted, there were also significant errors by the prosecutor in presenting the case to the jury. He invited them to infer from injuries the missing person ‘would have had’ that he must have been attacked by someone known to him.

But of course there was no evidence of such injuries before the court for obvious reasons. The fact that ‘the body’ had not been found was said by the prosecutor to be indicative of murder by someone known to the missing person. After all, why would a stranger have bothered to dispose of the body, he said. Again there was no evidence before the court to show that strangers do not dispose of bodies in murder cases. There is a confession by a trial witness to having participated in the crime that night in the absence of the person who had been convicted.

Surely the errors in the Neill-Fraser case are at least as clear and as compelling as the errors in the Button and Jamah cases? Why then do the Tasmanian prosecutors not ensure that this case returns to the court in a similar timely manner?

On July 26, 2019, Faruk Orman was released from prison having served 12 of his 20 year sentence for the 2002 murder of underworld figure Victor Peirce, because of a “substantial miscarriage of justice” caused by (as The Guardian describes her): his double-agent lawyer Nicola Gobbo, also known as Lawyer X. The Victorian DPP has said that it would be unjust to demand a retrial.

The immediate release of Sue Neill-Fraser from prison is being sought by her supporters – and is within the powers of the Tasmanian Director of Public Prosecutions, based on the evidence of Meaghan Vass that she witnessed the crime and Neill-Fraser was not a perpetrator – and her DNA to prove it.

Neill-Fraser has spent just over 10 years incarcerated now, convicted of murdering her partner Bob Chappell on Australia Day 2009. Her new appeal is likely to begin next year, but her supporters are clamouring for her to be allowed to go home, at least on home detention terms, until the appeal is finalised.

The integrity of the justice system

Eve Ash is also deeply concerned. Ash, who made the documentary Shadow of Doubt and the TV series Undercurrent, both about this case, says “If it is good enough for Frank Button and Farah Jamah why not for others in similar positions?​”

“I’ve always thought the Director of Public Prosecutions has a responsibility to the public to rectify an obvious miscarriage of justice. Doesn’t the presence of a witness to the crime, whose DNA confirms presence at the crime scene, mean anything in Tasmania?

“And why are so few people in Tasmania concerned? How can politicians both past and present sleep at night knowing Sue Neill-Fraser has to sit it out for another year or so?”

And no less than a US prosecutor, Lindsay Runnels, told a court recently, “The integrity of the justice system depends on those in power telling the truth and correcting errors when they become known.”

The only thing in the way of Neill-Fraser’s release is the unwillingness of the prosecution to exercise their powers with proper regard to their code of conduct and the plight of a wrongly convicted person.

As one of our readers, Geoffrey R Hardy writes: I once imagined that in a truly just and honest system where mistakes and miscarriages of justice occurred those involved would be able to say we got it wrong. Through that, despite human error, they would be applauded for their integrity and real implementation of the care and justice that every citizen deserves. The horror of an unsafe verdict and wrongful incarceration like Sue’s should outweigh any concern for reputation or career which should not be tarnished by acknowledging mistakes and setting them right. How naive I was!

The irony, of course, is that the reputations that are being protected will be even further diminished by the failure to expedite a correction.

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20 Responses to Qld & Vic prosecutors set example for Tas prosecutor

  1. drtuber says:

    18.27 The Commissions consider it inequitable and discriminatory to criminalise the sexual activity of young gay men who have reached the age when sex with a person of the opposite sex would be legal. These laws can be seen as an official sanction of the unfairly different treatment experienced by many young gay men and lesbians. All States and Territories that have not already done so should make the age of consent the same for heterosexual and homosexual sex.

  2. Keith says:

    I note that David Eastman has just been awarded $7.2 million in compensation for a wrongful conviction after serving almost 20 years in gaol. This had already cost the ACT Government $30m.
    Might I suggest the Tasmanian treasurer budget something in the order of $4m for Sue Neill Fraser in the FY 20/21 – methinks he is going to need it.

    • Diane Kemp says:

      Agree Keith however think the amount should be closer to $10m given the false case that was told by the DPP and the misleading information from the Judge and the continued stupidity of anyone to acknowledge the miscarriage of justice.

  3. Mez says:

    I missed these 2 episodes of Insight, but just caught up. While heart-wrenching to listen to these stories, I learned a whole new respect for Bob Moles. Sue has the best and brightest on her side! Keep up the good fight Bob xxx

  4. Williambtm says:

    An interesting studied observation is that some 80% of Tasmania’s legal practitioners are members of some sort of covert brotherhood. An example I have provided below concerns the actions by a number of those members in this covert brotherhood, to have managed to stretch out a grant of probate matter being obtained through the Tasmanian Supreme Court, for a period of some 8-9 years.
    In stating my studied observation, this in no way diminishes the extraordinary bias
    exhibited during the SNF trial, nor does it explain the absence of any at all exculpatory evidence. The judiciary officials that attend to Tasmania’s Supreme Court well know of their extraordinary bias.
    Tasmania functions via the great divide held between the State’s academic Exclusives Vs. the Commoners……….. everyday people in Tasmania.
    Those in the latter category are denied the prospect of possessing any at all credibility.
    Hence the enormous bias exercised against all matters of substantial consequence.

  5. Di Kemp says:

    Not Tasmanian parliamentarians including the Governor, Premier and Attorney General nor the Prime Minister, the Opposition Leader, Jacqui Lambie who lives in Tasmania, has the courtesy to reply to letters sent to them about home detention until the appeal reaches court!!! Not one of them cares that a woman remains in prison after the so called evidence provided at trial has been blasted out of the water. This is not my Australia!!! Good people do not turn their back on truth and justice but fight for what is right. I will continue to send my letters and they will continue to ignore them so they will become as responsible as those who used lies and deceit to get a conviction that is flawed in every way.
    God help our future with people like these running our country. Take a stand, speak up and be counted now.

    • Marie LEONE says:

      the behavior of so called leaders. protecting the drug dealers and leaving this innocent woman behind bars. PERVERTING THE COURSE OF JUSTICE

    • Geraldine Allan says:

      Di, my understanding is that Tasmanian laws prevent a convicted murderer (uncomfortable using that term for SN-F, yet by law for now that is her status), from being released pending appeal.

      I think some other states’ laws may differ.

      You could check the accuracy of my understanding if you feel inclined to pursue your campaign.

  6. LB says:

    Tasmanians should lobby their Premier and keep going until notice is taken about the plight of Susan Neill -Fraser. Why are the Tasmanian authorities not receptive to the calls from not one but several eminent lawyers that this conviction is unsafe? There is only one plausible explanation.

    Perhaps SBS Insight, ABC 7:30 Report and ABC Four Corners might trigger a Royal Commission into this wrongful conviction, as was done with their Aged Care reporting.

    Tasmania – a complete disgrace.

  7. Rebecca says:

    File a group case…I also know of someone in Tasmania being stitched up by incompetent and biased police. It is systemic and lots of individuals fighting can be intimidated and lost but what about if they come together as a large group and bring charges against or sue the prosecutors etc, whoever they can basically?

    • HGF (Jerry) Fitzsimmons says:

      I believe you have a point. Thankfully Andrew retains confidentiality in our emails.Would you be willing to pass on to Andrew some contact details for those interested in doing what you suggest and Andrew if you think it best can this be done with discretion to retain confidentiality.
      It is apparent that many flaws exist that cause wrongful, and if may say frustrating, convictions.
      It is human nature that we do our best in what we do and I feel that court egos, because they are public, create blinkered results or outcomes.
      It is also human nature to make mistakes, be to embarrassed to admit it, hence wrongful convictions.
      I didn’t mean to go on but it would be a worthy cause to follow up on what you are suggesting Rebecca. Look at Hong Kong!

      • andrew says:

        I’d be happy to assist, but this looks quite possibly a class action. Lots of lawyers do that work!!

        • HGF (Jerry) Fitzsimmons says:

          Andrew, I totally agree, after all, you, by your own admission, and I are not legally trained however, let’s never doubt the power of genuinely organised people.
          They are the backbone of what great lawyers make their reputations on.
          Let’s give Sue’s legal team and Sue herself an organised opportunity to pursue what is really going on and push for what Bob Moles has asked for, a Criminal Cases Review Commission in Australia.
          This greatly qualified man has not only spoken publicly on the recent SBS ‘Insight’ program about the number of cases reviewed and overturned as a result of such a body, which of course requires legal know how but, both you and I know that people power is the first step.
          Let’s do it.

  8. Tom Cairns says:

    It is at least of some consolation to see that many minds are coming together over this affair and these are only the ones who speak out. Let’s hope that plenty of the silent majority watched this week’s Insight on SBS.
    The video recordings of Sue’s police interrogations impressed me as someone rather ingenuous and bewildered by young men who had authority to bully and intimidate. The idea that ostensibly finding her in a lie meant she must be guilty convinced them they were right, but only because they wished it to be so and had nothing to do with the confusion that they themselves induced. Their vision was narrow and the whole amounted to incompetence, there is no other word for it.
    The Tassie bureaucrats are stalling and praying for a miracle. Why their silence, because that is what their covert deliberations amount to?
    Let Sue go home you people. If and when you find a body, a murder weapon a confession and critical evidence then you can put her back. In the meantime, it appears that the life that is her birthright is being trashed by strangers for that is what they are.

  9. Sandra C ack says:

    I have proof, not only do the higher authorities in Tasmanias judicial system protect, the corrupt prosecutors, they set out to intimidate, those who investigate cases, and speak.

    Put at the barrel of a gun, i wont be silenced.

    Worse is, these ‘law protectors’ get politicians to pass new laws without consultation with the public, rushed through, to further protect the DPP, Pathologists, police and in our case, a paramedic that should of been investigated.
    3 more people are dead, they framed my son to shut a case down fast, but, left a murderer on the streets, who has taken 3 more lives, justified, to protect a paramedic workng with an ice addict criminal and murderer. It simply was an accident for that paramedic doing his job on an ice addict – but- lets get real, once covered up, with-held, this evidence is withheld, and thats perverting the course of justice, thats criminality in the highest order.
    Sue should of gone straight to the high court and never trusted the Tasmanian System, it is so corrupt, from cop, to (EDITED) and (EDITED).

    I wont he silenced, my innocent son, has endurred serious injuries, eye cut out with raxor blades, raped by gangs, solitude as punishement because I filed, investigated and lodged an appeal, cause, they refused him legal aid, we appealed, still refused.
    The refusing judge of legal aid, was on the panel for the appeal. Wow, its so corrupt.

    I feel for susan frazer, but, we have others going through the same, but no one cares for them, and im a single mum, lost career, so on newstart and aline, am fighting for my sons innocence. All to cover for a paramedic who was under pressure and stabbed an injured mans good lung.
    A document i have said , my son didnt have a father and the mother didnt care- you were so wrong- i care about TRUTH. INTEGRITY.
    We need a royal commission- judiciary Mafiaism – it is alive in Tasmania.

    • Mez says:

      I heard about your case Sandra. My boss has spoken with you about it. I sincerely hope he finds a way to expose this horrid, corrupt and disgusting excuse for a justice system in Tasmania! Fingers crossed xxx

  10. HGF (Jerry) Fitzsimmons says:

    Andrew, like Eve I have often dared to think “Why are so few people in Tasmania concerned?
    I do however realise and know, as both Eve and you do, that what occurred to some very prominent people who dared to advocate for Sue Neill-Fraser is still playing out to this day.
    This is what those in the circles of power rely on, I believe, to create a culture of fear.
    They have the means and power to intervene and correct this incestuous bungle.
    Yet they have constructed this fear to remind those less prominent, less daring or legally illiterate to remain only passively concerned about an apparent Tasmanian cronyism that has allowed this tragedy to escalate. But why.
    Dare anyone speak out and you will be hounded but yes, bravely some have chosen to do just that.
    This great island does not need further shame and I sense it may take a seriously outstanding and honest individual from Tasmania to publicly lead and right this wrong.
    Until this occurs Andrew then everyone will continue to surmise why so few Tasmanian’s are concerned.
    Tasmania needs honest professional leadership.
    “Insight” on SBS demonstrated how police and DPP called out in support of the truth in other places to have wrongful convictions that they were involved in overturned. This can also happen in Tasmania and the sooner the better in Sue’s case.

  11. Noeline Durovic says:

    Authoritarian abuse of power by so called legal entities seem to follow a pattern:
    In the case of Susan Neil Fraser -A legal fit up. – Truth hidden supposedly never to be seen or realeased (kept in rooms and cupboards never to see the light of day in the hands of the legals) Legals perversely falsely perverting the course of justice – Legals covering for the crimminals known to them?..Misleading to fit up the innocent Only by addressing through a Commission of Enquiry this abusive of power perverting justice with in our system will our legal system cleared out then be accountable. However Tasmania’s legal system now questionable so flawed corruptive must seek independent outside commissions and assistants not local Legals.. As such legals to an appointment would then be like turning hungry foxes into the hen house and shutting the door behind them!!!

  12. Gruntle Massey says:

    I think the most important observation on Insight last night was the comment from the NSW appeal judge in the audience. H cited the four main reasons why these miscarriages occur –

    1. Police corruption
    2. Police incompetence including laziness
    3. Unqualified Experts and their biased opinions, questionable forensics.
    4. A prejudicial flawed attitude by the Public Prosecutors.
    I will add a fifth
    5. the suppression of exculpatory evidence , as was highlighted by almost all of the victims on the program.

    It is not just Tasmania, or other states that has a problem, it is the whole world that has a problem. Many innocoent people are in jail globally. If you are unlucky enough to end up as a suspect in a crime, you can expect to stitched up. Therefore, as I always say, never talk to police, and always film all your dealings with them.

  13. Monique Bertino-Clarke says:

    When people who should be independent are not held accountable, this is what you get. If I get it seriously wrong or even deliberately wrong in my work, I could get demoted, stood down or lose my job. It’s a travesty to know, after the fact, that Police, Attorney General (in the case of Henry Keogh), Prosecutors and expert witnesses who have knowingly withheld, hid, manipulated key information, or not been transparent on information that sheds a different light on facts, continue to remain in their positions. Some even ending up promoted. We need mandatory jail sentences for all of the above where they commit perjury. You only have to jail one and you may slow down this abuse of power and the mindset to win at all costs.

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