Andrew L. Urban.
The foundation stone of the law is morality. All laws have a moral basis or background – but not all individuals and/or institutions within the legal system do. Moral considerations ought to inform legal considerations. In the case of Sue Neill-Fraser this imperative has failed and continues to fail.
That failure of morality is a human failure, it comes from human decisions. For example, as we reported yesterday (If Pell, why not other innocents in jail, April 9, 2020), “The coppers and the Director of Public Prosecutions would be assisted, I think, by doing a root-cause analysis, by figuring out dispassionately … what happened in this case,” Terry Tobin QC, Chancellor of The University of Notre Dame Australia, said. Anyone following the legal disaster that is the Neill-Fraser case, would cheer such an approach in Tasmania, but at the same time laugh with derision at the very thought. (Legal academic at Flinders University, Dr Bob Moles invited then DPP Tim Ellis to participate in such an analysis some years ago in the Neill-Fraser case, but his invitation was ignored.)
The resistance of the Tasmanian legal system to a proper review (judicial and independent) of Neill-Fraser’s conviction is driven by its lack of collective morality. Protecting the conviction takes precedence over finding the truth. In this case, it is even worse than that because we know the truth.
The truth is that Neill-Fraser did not murder Bob Chappell. The whole world knows this, especially after Meaghan Vass revealed on 60 Minutes (March 10, 2019) that she witnessed the on-board scuffle that led to Chappell’s disappearance and presumed death. Neill-Fraser was nowhere near the boat at the time. Her DNA was collected from the deck, so the only real evidence in the case matches the Vass admission. That is the truth.
Tasmania’s DPP should have the moral imperative inform the legal imperative and instead of pursuing the immoral objective of protecting the conviction (for all the wrong reasons), put to the court a submission that takes this truth into account, relieving the burden of a wrongful conviction from Tasmania’s legal system. (Not to mention Neill-Fraser herself.) He has refused to do so. That is the kind of immorality that undermines the law. The DPP has the legal right to pursue his course, but not the moral right. Hence the law is diminished.
“When law and morality contradict each other, the citizen has the cruel alternative of either losing his moral sense or losing his respect for the law.”― Frédéric Bastiat, The Law
And as Harry S. Truman said, “If we don’t have a proper fundamental moral background, we will finally end up with a totalitarian government which does not believe in rights for anybody except the State.” This observation is especially apt in this case; Tasmania has shown its institutional monopoly on rights in various ways.
For example, Tasmania’s Assistant Commissioner Richard Cowling made a statement on or about March 11, 2019, to the effect that after her 60 Minutes admission, Vass had been interviewed by police and had ‘changed her story’ about witnessing Bob Chappell’s murder on Four Winds.
The transcript of a court hearing of April 18 (Vass in an unrelated matter) shows the prosecution explained to the court that police advised that Meaghan Vass had said ‘no comment’ to all questions put to her in the interview on March 8. This clearly contradicts the statement by the Assistant Commissioner.
The publication of Cowling’s statement could only serve to discredit Vass as an unreliable witness in any upcoming court appearance in the Neill-Fraser case.
I wrote to Tasmania’s Attorney General Elise Archer, drawing her attention to this misleading statement by an officer of the State. She declined to act on the basis that the Sue Neill-Fraser case ‘is before the court’.
I also lodged a complaint with Tasmania’s Integrity Commission over the matter. “The legislation which establishes the Commission only allows us to investigate ‘misconduct’ – which has a specific definition under the Integrity Commission Act (2009) (the Act),” replied Integrity Commission Director Operations, Michael Easton.
“While it is clear from your complaint, that you are concerned about the actions of Tasmania Police, the information you have provided does not indicate that misconduct, as defined in the Act, has occurred.”
This is what is defined as misconduct in the Act:
s4 (1)(a) of the Integrity Commission Act 2009:
(a) conduct, or an attempt to engage in conduct, of or by a public officer that is or involves –
(i) a breach of a code of conduct applicable to the public officer; or
(ii) the performance of the public officer’s functions or the exercise of the public officer’s powers, in a way that is dishonest or improper; or
(iii) a misuse of information or material acquired in or in connection with the performance of the public officer’s functions or exercise of the public officer’s powers; …
And the Tasmanian Police Code of Conduct States:
42 (i) A police officer must behave honestly and with integrity in the course of his or her duties in the Police Service;
Members must be truthful, fair and impartial and act ethically at all times …
morally bankrupt trial
Institutional lack of morality was also responsible for what passed for the police investigation after Bob Chappell was missing from his yacht in January 2009. Embracing a false accusation by a known lowlife (then facing charges) that Neill-Fraser had spoken to him of murdering her brother 11 years earlier, police put on their tunnel vision goggles and pursued Neill-Fraser. The incompetence of the investigation is detailed in former ace detective Colin McLaren’s book, Southern Justice (Hachette).
The morally bankrupt trial featured a prosecution that invented a murder scenario, produced no evidence and attacked Neill-Fraser inadmissibly, prejudicially. Sound and fury replaced reason and proof. Indeed, one witness testifying that she saw Neill-Fraser and Chappell argue loudly on the dock, corrected herself when she saw Neill-Fraser in court, saying that it was a different woman (Chappell’s sister, in fact) who did the arguing. The prosecution ignored that.
On the bench, Justice Blow permitted the prosecution’s speculation about the murder and the wrench that might have been used (but was not produced in court) and referred to a wrench several times in his summing up.
The first appeals court took the view that despite the grounds of appeal, there was enough other evidence to convict. It did not actually refer to any such evidence. Another failure of morality.
In the words of philosopher and statesman Edmund Burke, “Morality is more important than laws, because law depends on morality.”