Prosecutor’s allegation haunts forthcoming Jeff Thompson trial

Andrew L. Urban

The allegation by Jack Shapiro, a lawyer at the Office of the Tasmanian DPP, that Hobart solicitor Jeff Thompson “duped” a prisoner in the course of working on the Sue Neill-Fraser appeal, is haunting Thompson’s forthcoming trial on charges of perverting justice. The next directions hearing on the matter is listed for next Monday (April 26, 2021); will the court address the allegation against Thompson, who has yet to be tried? Is Shapiro’s allegation likely to ‘poison the jury pool’? 

First reported by the ABC News website in 2018, the allegation was made in court in reference to exchanges with Stephen Gleeson, who had pleaded guilty to two charges of perverting the course of justice. He claimed he had made a mistake; “”I feel more stupid about my actions…”.

Thompson was charged with perverting the course of justice in August 2017 by influencing a photo identification by Gleeson (which Thompson denies); in early 2018 Lynda Mason, counsel for the DPP, requested the Supreme Court (Brett J) that Thompson’s trial be deferred until after the Sue Neill-Fraser appeal has been finalised. (That sits at odds with the requirement that a person should be tried without an unreasonable delay.) The appeal judges have reserved their decision, so that is still some way off.

But would Thompson get a fair trial? The allegation was: “Put simply, he was duped by Mr Thompson and those who visited him and if it wasn’t for their actions he would just be serving his sentence,” he said.

While Mr Shapiro has professional immunity covering his actions in court, Jeff Thompson has not been convicted of any wrongdoing;
a) does Mr Shapiro’s allegation amount to perverting the course of justice?
b) does it prejudice his chance of a fair trial?
c) should the court order Mr Shapiro to issue a public statement retracting his allegation?
d) should Mr Shapiro advise the ABC that he is retracting that allegation and request it be published?

And repeated on smithforensic:
Mr Shapiro told the court that Gleeson was the “least culpable”. “Put simply, he was duped by Mr Thompson.

An allegation of ‘duping’ – especially by a lawyer from the ODPP – is likely to have significant negative financial ramifications for a solicitor, whose good character and credibility are primary requirements by clients and employers.

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26 Responses to Prosecutor’s allegation haunts forthcoming Jeff Thompson trial

  1. Peter Gill says:

    NSW ex-cop Gary Jubelin recently wrote a book,. On pages 95-96 Jubelin discusses how
    police show photographs to witnesses:
    “But not every witness sighting can be trusted. …. [detectives] spent ages chasing up false sightings. Memory plays tricks on people. And sometimes the way police ask questions can cause a witness to think they’ve seen something they haven’t.
    In Bowraville, it turns out, the cops had gone around with photographs of the missing children, asking if anyone had seen them. Do that, and you risk prompting someone’s memory. They’re likely to believe the person in the photograph is the person they saw, even if it is now weeks or months after the event. What they should have done was ask these witnesses to pick the person they remembered out of a collection of different photos. … It’s basic police work.”

    I don’t know exactly what Jeff is accused of, regarding “showing photographs”. Can anyone enlighten me?

  2. Peter Gill says:

    Tasmanian police claim they have about 75 million words in their documents about Jeff Thompson ref paragraph 34 of https://www.ombudsman.tas.gov.au/__data/assets/pdf_file/0009/575244/O1804-116-Decision-Final-Signed.PDF
    which refers to 150,000 pages, multiplied by the usual average of 500 words per page =
    75 million words.

    That is simply ridiculous.

  3. Andy says:

    Yet again another scummy way to get their way. Tas police ransacked jefs home seizing all his files saying he shouldnt have them at home. They were in a lockable file cabinet as they were meant to be. Just a shitty way of tas pol snooping.
    And stephen gleeson had already named the perpetrator, the photo board was to make sure the name matched the face.
    Peter powell passing stephen gleeson off as a harmless drunk i found appalling considering what he just served time for. Jef is a lovely gentle man who got caught up and was used to shield tas pol from taking responsibility…… Again

  4. John S says:

    Saw TV show about Henry Keogh case the other day, what are we becoming here in Asutralia? I tell all my friends to NOT visit Tasmania while this is still outstanding. Most understand but some don’t seem to care. They seem to think it can’t happen to them, it just happens to someone else. Everyone is someone’s “someone else”, so it can happen to them too! We have too many arbitrary arrests in Auatralia, they come under things like “challenging an officer of the law (police)”, with resisting arrest thrown in as an extra. What’s “resisting arrest”? Anytime they like it it seems if you don’t freely allow yourself to be arrested (hold out your wrists for them). It’s a silly charge, but still often added to nearly every case. How may arrests would be welcome by the apprehended?

    Years ago we had vagrancy as a crime, now scrapped. Police resisted the govts for scrapping them, claiming it made life easier for them to simply arrest whomever for “vagrancy” while they thought up some other charges. Too bad, now they have to get it right the first time. Similar “stalking” charges, police got govts to put them in to place, now they’re abused by police in place fo the old “vagrancy” charges. There’s no simple definition of “stalking”, I’m thinking I’m being “stalked” by police these days!

  5. Lynn Giddings says:

    Thank you, Andrew, for your constant vigilance. The longer the Crown drags its feet, the more I believe Susan Neill-Fraser is innocent and the more I sense a cover-up. When the Crown showed the video of Jeff visiting Stephen Gleeson in prison, I thought it exonerated Jeff who packed up and left when Stephen offered to identify someone to help Sue and Jeff declined the offer. We are talking about a clear statement that Jeff Thompson had “duped” Gleeson and was therefore guilty yet the court has not decided or made a determination yet. A jury is potentially prejudiced by this statement and guilt is assumed. That’s not cricket, boys and girls!

  6. Rosemary says:

    Even if the damaging statement were retracted, the prejudice is already out there. What is the use of having the rules around a fair, unprejudiced trial (as outlined by previous comment by Geraldine Allan)when clearly the rules have been ignored. Rules also to have the ODPP act as model litigants, to operate with standards of fairness. Already the unlimted resources of the state against the accused creates disadvantage. Then on top of that the psychological warfare of dragging it out for years before everything can be contested in court, wearing a person down by the mud going out through the media and the great difficiculty in getting access to things through discovery and on and on it goes. Clearly from the transcript of the proceedings in the Stephen Gleeson case he was influenced by wanting to get it over with and have a mitigated sentence yet still expressing a view conttrary to his plea. I guess it was just too easy to take the opportunity to throw in the ‘duped’ argument when there is no chance to dispute it. Too late, the damage is done. The least they could do is retract to maintain some standard in the courts. Other cases on this blog here demonstrate how an interpretation of one or two words can have dire consequences for the accused. What is said must be carefully considered in these situations. Justice has become meaningless.

  7. Geraldine Allan says:

    Feeling furious at the rhetoric … WOW!!!😡
    Refer ps. 54/55
    https://www.dpp.tas.gov.au/__data/assets/pdf_file/0006/570858/DPP-prosecution-guidelines6.pdf

    Media
    No public comment is to be made by prosecutors without the Director’s approval in relation to matters that are the subject of criminal proceedings or that have been referred to the Office for an opinion in relation to potential criminal proceedings. All media contact should be referred to the Director.
    Prosecutors should not give advice to a journalist or media organisation that they can legally publish any material that has been referred to in court.
    All prosecutors must ensure they do not make any comments that demonstrate a lack of detachment or impartiality concerning current or potential matters in any forum where it is likely that such comments may become public and which could lead a fair-minded person to have concerns that the prosecutor may not carry out his or her duty to ensure a fair trial. In an extreme case the court may stay the proceedings of any trial until the prosecutor is replaced (see MG v R [2007] NSWCCA 57).
    Contempt of court
    It is the duty of the State to ensure, as far as practicable, that an accused person receives a fair trial. It is a contempt of court to publish material which has the tendency to prejudice the prosecution or defence in a pending trial (see R v ABC [1983] Tas R 161 per Neasey J at 168).
    In addition there are some statutory contempts such as the publication of the identity of the victim of a sexual assault (s194K of the Evidence Act 2001).
    The seriousness of a contempt is to be judged by the prejudice that is likely to flow from the contempt and the culpability of those concerned (see R v Hally [2012] TASSC 86). In determining whether to prosecute a person or an organisation for contempt of court the following considerations will apply:
    • How prejudicial the published material is
    • What were the circumstances in which the alleged contemptible material
    was published?
    • What was the response of the offending party when the publication of the material was pointed out to them?
    • What systems were in place to prevent such publications; and further, what systems does the offending party undertake to put in place to prevent further repetition of the conduct?
    • What motivated the publication?
    • The position or role a person took in the publication, e.g. was the person
    a private citizen, a junior reporter, an editor or a media company
    DPP Prosecution Policy and Guidelines 54
    • The prior record of the person publishing the material
    It should be noted the weight given to any one of the above factors may vary
    according to the circumstances of the case.

    • Rosemary says:

      Given that the Director of Public Prosecutions must approve such comments as per the rules that you have outlined in such detail Geraldine Allan, is this a case of slackness or blatent disregard for their own rules and behavioural guidelines at ODPP?

      And the big question is; Did the DPP approve of the Shapiro comment in the Gleeson matter? Where is transparency and accountability?

  8. Geraldine Allan says:

    State of Tasmania v Stephen John Gleeson
    For reasons of possible contempt, we are not discussing Jeff Thompson matter currently before the Supreme Court. Since Thompson had already been charged at the time of Shapiro’s (protected) submissions.
    ODPP role
    Furthermore and for clarity, it’s important to remember that this article/discussion is about ODPP prosecutor Jack Shapiro’s March 2018 submission in a public court and, the subsequent Stephen Gleeson sentencing remarks, as published.

    Uncontested matter
    Because Gleeson’s (spurious to me) plea was ‘guilty’, it was an uncontested matter, thus Jeff Thompson had no opportunity to defend, and state his case — the defending facts of the matter.

    Appears to me a reckless approach taking advantage of the uncontested status to turn up the heat on Thompson, and mislead the court about the relevant facts. Additionally, he mislead by omission, including but not limited to, at the time of Gleeson’s alleged offence Thomson was employed part time by the Department of Justice, as a duty solicitor in the court. Shapiro was/is well aware of that fact.

    Since Thompson was charged in 2017, how is it that there was no obligation (I believe there was under 1) Rules of Professional Conduct and 2) ethical obligations under Crown as Model Litigant, plus possible others about which I’m unaware) on ODPP officer Shapiro to seek suppression orders to protect Thompson?

  9. Garry Stannus says:

    Stephen Gleeson ultimately pleaded guilty to two charges of perverting justice. Then he began to make an address to Marshall AJ, by way of mitigation. The main focus of his remarks in mitigation was his claim that lawyer Jeff Thompson had ‘duped’ him into making a false identification from a photo board which Thompson had brought into prison.

    Thompson rejects this and asserts his innocence.

    The matter, some three and a half years later, has not yet been resolved.

    As I understand it, Gleeson’s guilty plea enabled Prosecutor Shapiro to have a long list of prosecution claims read into the court record – as ‘Crown facts’.

    In his listing of what would become ‘Crown Facts’, Prosecutor Shapiro was able to introduce this allegation of duping: “Put simply”, Shapiro said, “He was duped by Mr Thompson and those who visited him…”

    Subsequently, AJ Marshall in sentencing Gleeson, picked up on Gleeson and Shapiro’s duping claim and built it into his sentencing remarks: “The Crown concedes that you were duped by Mr Thompson and you were vulnerable to suggestions by him.”

    All this and Mr Thompson has not even had a chance to give evidence … Gleeson called no witnesses … and ultimately decided to plead guilty to both ‘perverting justice’ charges. He actually told AJ Marshall that his decision to plead guilty to the charge involving the photoboards was taken so that his then upcoming parole in 36 days time would not be endangered… he told the judge he thought he’d been something of a model prisoner and I guess he thought about it and decided those in the system would not impede his parole application if he pleaded guilty. He said he had been told ‘leniency’ was in the offing and so, to safeguard his possible parole, he threw himself on the mercy of the court and pleaded guilty to that charge.

    But have not Mr Shapiro and AJ Marshall prejudiced Thompson’s right to a fair trial? Hasn’t the presumption of innocence been overlooked? How can the prosecutor and the judge both reflect publicly on a person who has been charged, is awaiting trial and has not had judgement of the case?

    It doesn’t seem right.

  10. Williambtm says:

    Tom Cairns, you have nailed it. Despite all the associated concerns and impure actions that hover around the central legal debacle created by the former DPP, which had been the “DPP power of suggestion” that had convicted and condemned Ms. Sue Neill-Fraser to spend the latter portion of her life in prison.

    Peripheral matters though they may be important to some lesser extent, must not distract from the enormity of the unsound conviction of Ms. Neill-Fraser.

    One of the paramount shortcomings that had poked its head over the parapet in the trial of the above: was the overriding amount of DPP discretion that had been sought but not necessarily permitted, to overpower the probity and fidelity of justice being served in its highest capacity.
    Re the case of the Crown Vs. M. Sue Neill-Fraser.
    https://www.dpp.tas.gov.au/__data/assets/pdf_file/0006/570858/DPP-prosecution-guidelines6.pdf

  11. Diane Kemp says:

    That Jeff remains still waiting and in limbo is a disgrace. Yet again, DPP Shapiro has continued the same direction – throw mud and it will stick because that is all he has. Why does he have professional immunity to make outrageous statements??? Jeff has had his life and livelihood destroyed in Tasmania by a corrupt system that has used delay. delay, delay continuously when they do not have any evidence. How is this a just system by anyone’s measurement?? Justice Brett needs to hold them accountable for their lack of action and trying to have a bet each way by waiting for the outcome of Sue’s case. Way, way past time that Jeff can pick up what they have destroyed. Again, what an absolutely disgraceful bunch of so called human beings involved.

    • Garry Stannus says:

      Diane, I think that Jack Shapiro is a Crown Prosecutor who works in the Office of the Director of Public Prosecutions. Mr Shapiro sometimes appears (alongside the DPP). Perhaps his role in such cases is that of ‘Junior Counsel’. The DPP is Daryl Coates. In 2015, Mr Coates replaced Tim Ellis as DPP. Mr Ellis had been sacked following his conviction for negligent driving causing the death of Natalia Pearn in 2013. In Stephen Gleeson’s ‘perverting justice’ hearings, from what I’ve read, it seems that Mr Shapiro has appeared and conducted the Crown case in his own right. I’m not sure that what I’ve written here about the Gleeson hearings/Shapiro’s role is exactly correct.

  12. Geraldine Allan says:

    Questions: –
    1) Since Mr Jeff Thompson had already been charged, how can ‘naming and shaming’ him not be contempt? It is insufficient surely to claim, ‘fair reporting’?

    2) How is it now possible for Mr Thompson to get a fair trial?
    Andrew Urban writes, “While Mr Shapiro has professional immunity covering his actions in court, Jeff Thompson has not been convicted of any wrongdoing”

  13. Geraldine All says:

    Uncontested trial
    After some toing and froing, by pleading guilty (for spurious reasons in my judgement), Mr Stephen Gleeson’s trial was uncontested. That alone surely incurred added responsibility on the crown prosecutor, Mr Jack Shapiro, to avoid any reckless statements, since the subject of his claims was denied a right of reply. That there was no suppression order, adds weight to the obligation to avoid any reckless and misleading statements, presented to the court as fact.

    Rather, being an uncontested trial appears to have given freedom and, even encouraged the prosecutor to turn up the heat on Mr Thompson, who was not afforded an opportunity to state/defend his case.

  14. Tom Cairns says:

    In a nutshell, Robin. The goings-on in this affair have a sordidness at their core that is tainting our “Apple Isle”. If those who hold the reins of justice are to be perceived as unscrupulous and downright mean, with apparently no real concern for an innocent victim, then what hope is there? They try to engage everyone in nit-picking and side-issues in the hope that distraction will somehow work for them and even vindicate. They have tried to negate an urgency that is vital to the release of their victim. They have resorted to ponderous deliberations, procrastinations, impasses, contention and delays. It has all been said before, the issue is no longer about Susan, but what to do about this ramshackle judiciary and police system which needs to be on the rack as soon as possible.

    • Robert Greenshields says:

      You seem to have adequately described the culture festering in Tasmania Tom, but realistically I doubt if the disease is confined to the “Apple Isle”. The petri dish of incestuous corruption is obviously a mutant legacy of combined cowardice and venality that infests all Australian Policing services, and their manipulating, obsequious, toadying, cringing criminal members. While that incredible conga line of accepted cowardice is given oxygen, to help sustain it through the regressing influences of agenda driven news and media outlets, innocent citizens suffer, and sadly Susan is still treading on the wheel of that terrible choreographed culture. No copper or ex copper, and they are seemingly, but of the lowest stratified class of credibility and authority, can claim to be anything but supportive of the dreaded tumorous culture while they knowingly accepted payment for performing and staying in the disgraced job. Police forces around Australia are an indictment on values and the true moral compass of this nation, and policing policies and actions can only ever be truly reflected in the words that were initiated Jack London in his poem, “The Scab”. A blight and ongoing regressive factor in Australian history are our venal policing services, and to maintain the accepted status quo is unacceptable.

  15. Robin Bowles says:

    Go Andrew! About time the Hobart DPP’s Dept is held accountable for their actions—or rather lack of action. These allegations against Jeff Thompson have been dragging on for years. Where is the expedition required in the administration of legal requirements, never mind justice. They did the same thing to Dr Stephen Edwards after holding him in Risdon for months while they tried to make a case against him for the mercy killing of his mother. Same member of the DPP’s adept, Linda Mason. Charges eventually dropped after totally stuffing up Stephen’s life and costing Tasmania a lot of money! Jeff Thompson was a conscientious member of the legal profession, doing lots of work pro bono or at at low fees. His life and his family have been severely impacted by these spurious charges. Living in limbo for all this time without the DPP getting their act together and getting on with putting their cards on the table. Outrageous! It is widely known around Australia that the DPP is awaiting the outcome of the Sue Neill Fraser appeal before sticking their necks out in case they get gazumped. As I said, it’s outrageous!

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