Andrew L. Urban.
What the Attorney-General said is wrong; she does have the power to SEEK LEAVE to re-open the Sue Neill-Fraser appeal; and the DPP, Daryl Coates SC, must advise the Court of Criminal Appeal his answer to Estcourt J about the grey dinghy was wrong, as barrister Hugh Selby explains.
Agitated by the avalanche of wrongdoing revealed by Barbara Etter APM and Hugh Selby in documents (and in our reports of them) sent to Tasmania’s Attorney-General about the investigation into the disappearance of Bob Chappell – and subsequent conviction of Sue Neill-Fraser – one of our readers, Keith Kroger, sent a friendly note via Messenger to the Attorney:
Hi Elise, I wrote to you recently about the new information you have received from Barbara Etter about the SNF case. Since then, there is more information about the bungling of the information regarding the dingy which I hope you will look at carefully.
I have voted Liberal for 50 years, have a long family tradition with the Liberal Party and nothing would bring me greater pleasure than for me to see you do the right thing, do the right thing by your conscience and at least call for a re-trial. I’m sure your dear mother would want you to do the right thing and not simply acquiesce to the wishes of the police and legal fraternity whose performance here has been sub-par at best. Come on Elise, you can do it.
Elise Archer MP, Tasmanian Attorney-General
The good news! Elise Archer replied
“As advised, neither the Attorney-General or the Government has the power to intervene as you suggest due to the separation of powers. It is an important function of our Justice system that the courts/judiciary retain their independence from political interference. Our Government did reform the law to allow a fresh trial with new evidence which has occurred this instance.
Regards
Elise”
The bad news! She’s wrong
Barrister Hugh Selby explains: “The AG and her advisers know that reply to Keith Kroger to be too clever by half. They could not possibly believe that statement to be an honest reply to Keith Kroger, as they know full well that I have been repeatedly urging the AG to seek leave to re-open the appeal; not to herself seek a retrial.
Keith wants the AG to do the right thing. I agree with him. Here it is.
Until Australian Governments set up DPP offices by Acts of Parliament the prosecutions in the higher courts were initiated by the Attorney General using the vehicle of Crown Law offices.
When the DPP Acts were passed the State and Commonwealth AGs retained their common law powers, as first law officers, to initiate or otherwise take action with respect to Criminal proceedings, such as ‘taking over the conduct of an action’.
A good example of this power is the Queensland case involving the 2004 death of a First Australian on Palm Island. The Queensland DPP refused to present an indictment (ie go to trial) against the police officer. The Queensland AG went ahead, presented the indictment in 2007, and the police officer was acquitted.
In the Sue Neill-Fraser case the Tasmanian DPP office is ‘conflicted’ as a result of its conduct – as covered in the papers – by its failure to disclose to the Defence before and during the 2010 trial, its conduct at the leave to appeal, and its misleading in March of the Appeal Court.
It is therefore appropriate that the AG step in to SEEK LEAVE to re-open the appeal. She does this by either asking the Solicitor General to file the necessary papers or retaining a private firm of solicitors to do so. She then appoints a competent and independent barrister to run the application. That will have to be someone from interstate.
This has NOTHING TO DO WITH SEPARATION OF POWERS. That concept does not even arise in this case.
It is truly embarrassing that an Australian AG, with the resources of her office advisers and a competent Solicitor General could peddle the wholly inadequate response sent to Mr Kroger.
It is made even worse because she and her office have not dared to try that response to Ms Etter and me, or any response at all, since we began sending her the materials (on August 1, 2021).”
Selby adds that “Given what the Etter/Selby papers have revealed this past two weeks, then at the very least (DPP Daryl) Coates must let the CCA know forthwith that he misled them when he gave the wrong answer to Justice Estcourt’s question about the grey dinghy sightings and witness Conde.
“At the same time both parties have the right to request the court to reopen the appeal in the light of recently revealed serious flaws in the case that cover a poor police investigation, police failure to disclose, ODPP failure to disclose to its own Director as well as to the Defence, a police expert who misled the court – and still to come, a police officer who lied about an important article of evidence.
“The Attorney can and should make the application instead of the DPP because of the conflict that now arises because of the mischief done within the ODPP. But if the Attorney does nothing – and she has done nothing this last two weeks other than give nonsense replies to inquirers (see above) – then the Sue Neill-Fraser team is free to make the application and they should. However, they should demand that the Attorney fund their preparation and appearances. ”
Confidence in govts the world over are at all time lows. As a small and economically struggling state, it’s hardly surprising to find the same in Tasmania. Nepotism plays a large role in this, as well as fostered disinterest in good governance (complaints simply ignored away, schools dumbed down, etc). Instead of the best people being chosen, it’s simply someone’s mate. Doubt this will change anytime soon, short of a revolt!
And there’s more!!!
Heavy reading, nonetheless, for those so inclined … read on.
I’ve not included it here, yet for those who have time, a read of the Crown Proceedings Act 1993, which below is referenced as making “…it clear that the Attorney-General may intervene in any proceedings which relate to public law actions against or involving the Crown in the right of Commonwealth or Tasmania …”
There following excerpt is from https://auspublaw.org/2017/10/mistake-to-consolidate-premier-and-attorney-general-portfolios/
“…Certainly, the politicisation of the Attorney-General’s role over the last century has meant that the Attorney-General, as a government minister, is also less likely to stand up for the judiciary or against other government members. It can be – and has been – argued that the Attorney-General has become largely politicised and redundant and all this reshuffle has done has proved that. Yet, while politics may have changed, the law has not.
Hence, in Tasmania’s case, both the DPP and Solicitor General are statutorily bound to exercise their primary duties at the ‘direction or request’ of the Attorney-General. For instance, the Crown Proceedings Act 1993, makes it clear that the Attorney-General may intervene in any proceedings which relate to public law actions against or involving the Crown in the right of Commonwealth or Tasmania, and the Parliamentary Privileges Act 1857 allows the Houses to direct the Attorney General to prosecute any justiciable offences against those houses or any Member. In the second reading notes for s 8C of the Constitution Act, Premier Nielsen justified the need to separate the office of Attorney-General from other Ministries on the grounds that, she or he has, conferred upon her or him by statute: …”
Hey readers, have a read of this, especially being mindful of Attorney-General Archer’s reply to Keith Kroger — yes same person, same role in 2019.
Hmmmn?
Must depend on which day of the week it is? For anyone thinking of contacting Ms Archer, the 6th June 2019 was a Thursday. Maybe that’s the day-of-week ‘intervention OK’ stamp comes into use?
“…
Ms Archer said it was a normal part of the Attorney-General’s role to intervene in court proceedings seeking the answer to a legal question, in this case seeking to clarify a jurisdictional issue.
“It’s one of the non-political roles of the Attorney-General, as the first law officer, to intervene on proceedings to seek clarification,” Ms Archer said.
“This appeal raises important issues relating to the validly of Tasmania’s laws.” …”
https://www.examiner.com.au/story/6203063/no-comment-on-lake-malbena-appeal-intervention-advice/
For non-subscribers, here’s the full 06/06/19 text: –
“Attorney-General Elise Archer defends intervention in Lake Malbena appeal
Emily Jarvie
June 6 2019 – 11:00AM
SITE OF CONTENTION: An artist’s impression of the proposed site on Halls Island. Picture: supplied
…
The appeal was lodged by the developer of a proposed luxury tourism development on Halls Island, at Lake Malbena in the Walls of Jerusalem National Park.
The proposal was voted down six councillors to three at a council meeting in late February.
RELATED: Attorney-General seeks to intervene in Lake Malbena appeal
In a budget estimates hearing, Greens leader Cassy O’Connor asked Ms Archer why she sought to intervene on a jurisdictional question which has been around for two decades “after a crushing defeat.”
“You conveniently joined an appeal by a developer,” Ms O’Connor said.
Ms Archer said it was a normal part of the Attorney-General’s role to intervene in court proceedings seeking the answer to a legal question, in this case seeking to clarify a jurisdictional issue.
“It’s one of the non-political roles of the Attorney-General, as the first law officer, to intervene on proceedings to seek clarification,” Ms Archer said.
“This appeal raises important issues relating to the validly of Tasmania’s laws.”
Ms Archer said she could not go into more detail as the appeal was still before the court.
“I’m acting on legal advice in my capacity as first law officer. I’m not going to provide a commentary on advice – it would be extremely inappropriate for me to do so,” she said.
Ms O’Connor questioned why Ms Archer suddenly joined an appeal that, if successful, would remove the power of councils over reserved lands with management plans in place.
“It is really hard to see it as an apolitical action as it is designed to prop up the policies of the day,” Ms O’Connor said.
Mr Archer said she would wait the court’s decision and examine the judgement at that time.”