Non-contentious legal principles to overturn Sue Neill-Fraser conviction – by consensus

In a submission to the Members of the Tasmanian Parliament this week, legal academic DR BOB MOLES of Flinders University, articulates the non-contentious legal principles in the Sue Neill-Fraser case; “if any one of the substantive points is sustained, it will satisfy the test for the overturning of the verdict at trial.” And he explains “Why we should reach a consensus.” This is an extract of his submission.  

The legal principles referred to (in this submission) are clear and non-contentious – as are the references set out from the trial transcript. The incompatibility between them cannot sensibly be denied. It is also clear that if any one of the substantive points is sustained, it will satisfy the test for the overturning of the verdict at trial. As mentioned in our reports, the preferred position is to conduct ‘post-appeal’ reviews on a collaborative rather than an adversarial basis. Prosecutors, police, forensic services and academics (as well as politicians) should all have a mutual and shared interest in identifying and rectifying any potential wrongful convictions at the earliest opportunity.

At the same time, we must acknowledge the evident embarrassment and ‘cognitive dissonance’ which arises when facing the possibility of the serious consequences of a wrongful conviction. The former Chief Justice of the UK said once when visiting Sydney that it would amount to a ‘catastrophic failure’ of the legal system. It is only sensible to acknowledge, that in the most serious cases of such failures, those who have participated in the system giving rise to such catastrophes, may not be the first to identify them or to bring them to public attention. In such cases, the final and most important opportunity to provide the required scrutiny, is through the parliament; the body which has ultimate responsibility in all cases for not just making the law, but also ensuring that it is effectively and fairly applied to all citizens.

As a law student, I always had in mind the words of a well-known English judge of the day (Lord Denning) who would say ‘be you ever so high the law (the parliament) is always above you’. As an example of recent reticence, I can point out that we first expressed concerns about the wrongful conviction of Mr Keogh in South Australia in 2001. It took another thirteen years, numerous submissions, petitions, complex legal procedures, books, articles, television programs and an historic change in the law on criminal appeals to get his conviction overturned. Most of that was entirely unnecessary as the basis of his wrongful conviction had been clearly explained at the outset all those years earlier. Similarly, in the UK, in each of the wrongful convictions in which people were hanged, it took an average over 40 years to accept that they were in fact wrongfully convicted. Yet the evidence which clearly demonstrated the nature of the wrongful convictions had been available since the trials all those years earlier.

In recent years, we have written and published leading textbooks on the subject of wrongful convictions. Forensic Investigations and Miscarriages of Justice (2010) is an international review of the law and cases on wrongful convictions. It was favourably referred to by a Canadian Supreme Court judge in a lecture he gave in Edinburgh when he mentioned the importance of our critique of forensic errors. It just happened to include the same error which was taking place in the Neill-Fraser case at that time. It was this book which led to our submitting a Bill to establish a Criminal Cases Review Commission in South Australia and which in turn led to the establishment of the new right of appeal.

Miscarriages of Justice: Criminal Appeals and the Rule of Law (2015) set out the development of the arguments for the new right of appeal.

Associate Professor Bibi Sangha and Dr Robert Moles of Flinders University

It also has chapters on the role and rules governing expert witnesses, prosecutors and the identification of wrongful convictions in the new appeal framework. It is clear that our work has had the support of eminent jurists and forensic experts in Australia and overseas. The Hon Michael Kirby AC CMG, our well-respected former justice of the High Court, was kind enough to write the Foreword to each of the above two books. The Hon Justice Stephen Goudge, a Court of Appeal judge for Ontario, and Commissioner in a leading inquiry into baby deaths had retained myself and Bibi Sangha to provide an expert report to his inquiry. In launching the above book, he said we were ‘eminently qualified experts’ who were able to elucidate thoughtful recommendations to policy-makers in all three jurisdictions of Canada, the UK and Australia.

CONSENSUS

It is clear that the errors identified in the wrongful conviction of Ms Neill-Fraser would be instantly recognised as such by many of the leading forensic experts, prosecutors and specialists in wrongful convictions across each of those jurisdictions. Indeed, it is the common practice in Canada for their judicial inquiries to reach out to experts in other jurisdictions to assist them. It would be quite simple and inexpensive to subject our reports to such scrutiny.

In the event that we were able to reach a consensus that appealable error had occurred in this case, the procedure for its correction is simple and readily available. There have been over 20 cases in the UK where the Crown has conceded that appealable error has occurred – sometimes in cases where they had every intention to proceed with a retrial. Once the Crown concedes that the appeal should be allowed, then with the agreement of Neill-Fraser’s legal team, they could make a joint application to the intermediate appeal court for a further appeal. The new legislation allows for a ‘second or further appeal’. In the Australian case of Farah Jama, the prosecutor, having realised that an appealable error had occurred, applied to the appeal court for an urgent hearing of the appeal. The court sat the next working day. The judgment consisted of 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. We see no reason why the same approach cannot be adopted for Ms Neill-Fraser. We would be most grateful if you would give careful consideration to these reports and the issues which they raise.

ADDENDUM:

Bob Moles adds this note:

I understand that this matter is currently under consideration by the Court of Criminal Appeal. However, that should not prevent all further consideration of this matter in the interim. In my view the correct procedure would be to request the DPP and the FSC to consider the issues which have been raised in our main research paper. It would be a simple matter to check our references to the trial transcript with the online version which is available here:

Full Transcript of Susan Neill-Fraser Trial

The relevant scientific and legal principles would be well known to any reviewer being fundamental and non-contentious.

If after completing their review which could be accomplished within a single day, they were to agree that any one of the substantive issues had been made out, then they would have to accept that this case amounted to a ‘substantial miscarriage of justice’ warranting the overturning of the conviction.

In that event the further procedure would be straightforward.

The Crown has a duty of disclosure.

Justice Blue of the South Australian Supreme Court explained “[t]he duty of disclosure is owed to the court and not to the defendant” – adding “[a]lthough the defendant is the beneficiary of the duty”. (Emphasis added) R v Keogh (No 2) [2015] SASC 180 at [62]

It is well accepted that the duty extends beyond the trial into both the appeal and the post-appeal periods.

In order to fulfil that duty the prosecutor (with the consent of the appellant’s counsel, of course) should apply to the CCA to re-convene to hear further submissions.

The prosecutor and defence counsel should  then make a similar submission to that of Mr Sonnet in the Farah Jama case and the court should of course respond in the same manner by setting aside the conviction.

I do appreciate of course that this procedure would be ‘unusual’ – but so is the case in question.

When we first suggested that the rules governing the appeal courts in all states and territories in Australia, along with those of the High Court and the statutory petition procedure infringed basic human rights principles, the claim was met with incredulity. Those rules had been in force for over 100 years and in all that time nobody had ever complained about their legal and moral force.

However, the Australian Human Rights Commission agreed with our claim and informed the parliament in South Australia of their view. That then led to the unanimous alteration of the law by the SA parliament by establishing the new right of appeal. Your parliament in Tasmania, and the parliament in Victoria also unanimously adopted similar provisions.

At the end of the day the guiding principle must be the pursuit of justice and whenever there has been a manifest miscarriage of justice it is incumbent upon every one of us to do all we can to correct it. I have always taken the view that when procedural provisions and justice collide, the procedure must be altered to attain a just outcome.

In this case, whilst the procedure is unusual, the guiding principles are not – the duty to ensure that the appeal court is correctly and fully informed of the true position is both a legal and moral necessity, and of course the public would expect that to be so.

I do hope that the parliament of Tasmania can request such a review by the DPP and the FSC to ensure that justice is done.

 

 

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10 Responses to Non-contentious legal principles to overturn Sue Neill-Fraser conviction – by consensus

  1. With more than 20 years of experience Griffith’s (University of Griffith in Qld) Innocence Project is a collaborative pro bono project that brings together lawyers, academics and law students to free innocent persons who have been wrongly convicted in Australia. By working together (with masks if it need be) to correct failures in our criminal justice system, we foster an Australian legal culture that champions the defence of the innocent and helps protect the marginalised and oppressed. This should be formulated immediately.

  2. Jerry Fitzsimmons says:

    You know, I have read, not as often as many others may have been doing, the exasperation’s in many of the comments, the carefully guilded and intellectual comments in others and I ponder, what is being achieved! Surely by now the politicians, bar a few, and particularly Attorney Generals should have intervened. They would be aware of the expressed concerns of many, if only to consider investigating what all the commentary is about. Each day I try to imagine what it would be like to be locked up, never being allowed to respond to anything then I think, why are we all providing these comments! Is it self gratification, is it ‘look at what I have to say’ to an i cloud out there, hoping that someone in a perceived position of power gives a rats. I applaud the points of view, the opinions expressed, and even if I say so, by myself but, where are we. There are even those who will say they are working behind the scenes, ‘unable to comment’ or ‘it’s inappropriate to comment on this while it’s before the courts’ and all the manifestations that would make you want to believe that SNF’s days of freedom are within a “ I told you so” release date. What, I ask has so far been achieved? I now realise that the corruption existing out there is much bigger, much greater than any of us would want to acknowledge and on the basis of all that I ask, ‘What is so wrong with having an investigative body that keeps a checks and balances on how we preserve a system that protects our liberties, our freedoms, whether it be private or public’. Corrupt actions are what appears to be the crux of many troubling decisions. So I ask, ‘how do we get to a collective body that carries out the work required to expose corrupt public officials and that will also send a clear message to any public related or funded person who is knowingly considering corrupt practises’? Or have we become immune to corruption?

    • andrew says:

      The point of all our articles and all your comments is to keep in the spotlight the quest for justice. That’s all we can do, so that is what we must do. No, we haven’t become immune to corruption: these pages demonstrate that, as does your evident frustration. Never give up.

      • Jerry Fitzsimmons says:

        My parents would turn in their grave if there was ever a moment I gave up but, thanks for your comments. Just disgusted with the smugness associated with corruption. Watching to much ICAC and IBAC maybe!

      • Helen Adkins-Sherston says:

        Andrew

        I have a draft email ready to go to the Law Faculty of UTAS but because of COVID and other issues was not able to, but we need more than ever an Innocents Project to be formulated which includes DNA samples et al of high importance. Unfortunately it may have been knocked back because of the virus. Hopefully I will do my best to resend this email to the Chancellor as an Innocents Project has been utilized in US and Europe.

  3. Robin Bowles says:

    I fear that Bob’s common sense, measured words and calm legal explanation of this situation is just casting pearls before swine. Oh, how I wish that I be proven wrong and one of the Swine becomes a Handsome Prince ( or Princess) and rescues Sue from the wicked dungeon where she has been unjustly imprisoned for what seems like 100 years!

  4. Rodger Warren says:

    I can only hope that common sense and a desire for Justice will enable the Tasmanian Government to overturn the conviction of Sue Neill-Fraser.
    Until this happens, my confidence in the Tasmanian Justice System will be non-existent.
    Take care
    Rodger Warren

  5. owen allen says:

    I love you Robert, more, than I love the joe average fellow man.
    You step out, without fear; you are an inspiration, like so many other concerned people to keep on the fight of INJUSTICE RULES AUSTRALIA,,,,worse in TASMANIA.
    I love everybody who is contributing on this case, keep it up, don’t let me slip back looking into The Pits of Hell.

  6. Williambtm says:

    In full regard to a DPP’s dealing with each case prosecuted under his purview, I am aware of a case matter decision that had been handed down, in the fact that this person’s intervening high legal authority had not achieved justice.
    That defect or erroneous insertion is the absolute full extent of unbounded discretion that a Director of Public prosecutions is permitted to exercise.

    I say this in the knowledge that the DPP held a strongly influencing bias improperly incorporated into a past case event in Tasmania in the year 2006, that had become the overwhelming influencing factor that had absolved some 18 plus charges laid against
    the defendant despite the amount of culpatory evidence withheld by the DPP.

  7. Robert Greenshields says:

    The weight of evidence looks to be growing in magnitude every hour, yet the Tasmanian judicial system seems to be content to stonewall and obstruct by silently, shirking/evading its true responsibilities and sitting on their hands.
    Like other well recorded factors in our national history, that have been heavily influenced by aged British colonial standards and a status quo of inevitable obsequious conformity, Sue Neill Frasers case and the associated injustices, has morphed into similar proportions of prior historical events that ultimately, when challenged, changed the legal landscape in Australia. The cultures of brutalising/bludgeoning/demonising, extorting, sections of our communities, from those at Eureka Stockade, through to the Kelly family in NE Victoria, on to the debacle that was the Breaker Morant fiasco, and through to the political farce and the mistreatment of opposing Vietnam War conscripts in the latter half of the 20th century, disinforming, pitiable, petty officialdom, along with its manipulating, supportive elite echelons, from the ground up, ie, from policing recruits ( many of doubtful and dubious character), to the over riding influential, probable esoteric cultured, supposedly elite administrative officials, have repeatedly regressed and devalued our once proud egalitarian aspiring acknowledged nation, and continue to persist with those inglorious old world traditions to this day without hesitancy.
    This despicable example, Sue Neill Frasers wrongful imprisonment and ongoing injustices, has confirmed that, in the state of Tasmania, as in other states and territories, the blind acceptance of the colonial era standard of the judicial state of affairs, is an error of gross proportions and should be terminated without any further question or delay.
    Maintain the faith Sue, you are far from alone.

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