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.
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.
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.