Andrew L. Urban.
The High Court’s dismissal of Sue Neill-Fraser’s application seeking leave to appeal (August 12, 2022) leaves unresolved the matter of inadmissible forensic evidence at trial and the lack of disclosure of that error to the courts. Flinders University legal academic Dr Bob Moles took the matter to the Integrity Commission Tasmanian (ICT), pointing out the legal obligation that remains unfulfilled.
Moles says the correspondence rejecting his submission reveals that the ICT appears not to understand that “the use of evidence which is false and misleading undermine the rule of law and represent a fundamental breach of our international human rights obligations.”
Dr Bob Moles to Integrity Commission
August 1, 2022 (extracts)
Of course, the FSST is not concerned about the outcome of the appeal. It should only be concerned to inform the DPP’s office that in this case evidence was given at trial by the forensic scientist which was not in accordance with appropriate scientific standards and was therefore inadmissible.
It will then be for the DPP’s office to determine what to make of that from a legal perspective. It clearly has not been appropriate for FSST, having been made aware of these problems for some years now, to remain inactive or unconcerned about the consequences which have arisen from their failure to provide proper scrutiny of evidence being provided by their employees.
As the Splatt and Morin reports make clear, where error has occurred all those involved have an ethical obligation to ensure that it is corrected. That obligation is continuing until the error is corrected.
I note that the Integrity Commission of Tasmania has the power to recommend to the Premier the establishment of a Commission of Inquiry under the Commissions of Inquiry Act 1995. There clearly should be an inquiry into the provision of forensic services in Tasmania, as the errors in this case are indicative of systemic failures which might well affect other cases.
Summary of issues arising:
- Why did the Director of FSST not respond to the report which was sent to him raising concerns about the forensic evidence in the case of Susan Neill-Fraser?
- Why did the Director of FSST not conduct an inquiry into the issues which were raised in the report which was submitted to him?
- Why did the Director of FSST refer the report to the Asst Commission in TasPOL when the issues raised were of a forensic and scientific nature?
- Was the reference of the report to TasPOL a breach of the policy of FSST to maintain an operational separation between FSST and TasPOL?
- Why did FSST not conduct proper peer review of the reports issued by the forensic scientist and of the evidence which was given in an important murder trial?
- The evidence of the forensic scientist in relation to DNA and that of the pathologist in relation to death being caused by a blow to the head should not have been admitted at trial. It did not comply with the conditions for admissibility of expert evidence. Although the provision of this evidence was no fault of those providing it (they were subject to directions by the judge or prosecutor), they do have an obligation to inform the prosecution (post trial) that the evidence should not have been admitted and may have been misleading to the jury.
Duty of disclosure: The relevant legal principles require the Crown (which includes the prosecutors, police and any other agencies of the state (expert witnesses) in support of a prosecution, to disclose any materials which are relevant to the case presented by the prosecution. It is particularly important that any material or information which might undermine the prosecution case or the integrity of an expert witness be disclosed.
The duty of disclosure is continuing – it continues after the trial and after all appeals have been concluded.
Integrity Commission reply to Dr Bob Moles
August 12, 2002 (extract)
We have carefully considered whether the allegations could amount to misconduct, as defined in section 4 of the Integrity Commission Act (the Act). This is important, as we can only act in relation to a complaint that alleges misconduct. We are also required to focus on possible misconduct that is serious or involves senior public officers.
It is clear from your complaint and your academic work that you are concerned with various aspects of the evidence used in the trial of Ms Neill-Fraser.
However, the information that you have provided is an academic opinion and does not indicate that misconduct is likely to have occurred. I note your views and commentary on the need for the independence of FSST. However I do not consider this to be an issue relating to possible misconduct, as defined in the Act
In the circumstances, I have decided that due to the low likely culpability of the public officers involved it is not in the public interest for us to investigate the complaint. I have decided to dismiss your complaint, under section 36(1)(f) of the Act.
Thank you for bringing this matter to our attention.
Chief Executive Officer
Integrity Commission Tasmania
Dr Bob Moles responds to Integrity Commission
August 22, 2022 (complete)
Thank you for your letter of 12 August. I regret to say that the opinions which it expresses appear to be lacking in both common-sense and logic.
You indicate that I am putting to you a mere ‘academic opinion’ which you obviously rate lower on the scale of human endeavour than the opinions of others, without explaining why that is so. I need hardly point out that the research output of universities is more highly regarded outside of Tasmania.
Indeed, my opinion was sought as ‘expert advice’ to the Goudge Judicial Inquiry in Canada, as it was on the establishment of a Criminal Review Commission also in Canada. In addition, our latest book on criminal appeals (to which I referred in my submission to you) was commissioned by the internationally respected law publisher LexisNexis and was published by their legal practitioner’s division as a reference work for legal practitioners.
However, the more important point is that the content of my letter to you was not to provide you with my opinions, but with reference to the judgments of the courts in Australia, Britain and Canada. The empirical basis for my submission to you was the transcript of the trial of Ms Neill-Fraser. Everything I said about the trial was supported by references to that transcript, and so it can hardly be said to contain, in that respect, any expression of my opinions.
The judgments which relate to the evaluation of the propositions put forward in that transcript are not mine, but those based upon the judgments of the courts of the United
Kingdom in the IRA bombing cases – the judgment of a judge of the Supreme Court of Canada – and within my report, the judgment of the Supreme Court of Victoria. Of course, all of that is backed up by the sections of our book on the admissibility of expert opinions and the conduct of prosecutors in Australian courts, to which I also referred in my submission to you and which, for convenience, I repeat below. Nobody has ever suggested that we have misrepresented the law on any of those issues in any way.
No indication of ‘misconduct’
I was then surprised to learn that you formed the view that the matters which I raised with you do not even raise a prima facie case of ‘misconduct having occurred’ so as to warrant any inquiry by the Integrity Commission. It is clear that the judgments of the Australian courts to which I referred took a very different view. They make it clear that the securing of wrongful convictions by the use of evidence which is false and misleading undermine the rule of law and represent a fundamental breach of our international human rights obligations.
I had provided you with the references to the Australian legal judgments which used the expressions ‘an extremely grave criminal offence’ and ‘criminality at the extreme end of the spectrum of official corruption’. The Lord Chief Justice of England and Wales on a visit to Sydney described the possibility of a person being wrongly convicted of a serious crime as constituting a ‘catastrophic failure’ of the legal system.
Yet you state that the conduct to which I have referred is ‘not serious’ – in the context of the possibility of a woman having been wrongly imprisoned for over 13 years. This is your response to the allegation that Forensic Science Services in Tasmania failed to provide peer review of the false and misleading evidence before being provided to the court; failed to investigate that misconduct when it was brought to their attention in my report; failed to maintain operational independence from the police in respect of investigating the concerns which I had raised; failed in their duty to the court to investigate if disclosable material (false evidence) was required to be disclosed to the DPP or the courts.
I have to say that I respectfully disagree with your assessment. The circumstances to which I have referred, when they occurred in the UK, led to two major Commissions of Inquiry, and the most important structural reform to law enforcement which has ever occurred in that jurisdiction – the introduction of a Criminal Cases Review Commission.
Yet when similar misconduct is reported to you, some 30 years after the UK catastrophe was exposed, the Integrity Commission of Tasmania is not embarrassed by publicly stating that they see no need to investigate even the possibility of a similar catastrophe having occurred in your jurisdiction.
I have no doubt that the opinions which you have expressed in your letter to me will be found wanting, either at the subsequent inquiry into the operations of the Integrity Commission, or the inquiry which I have no doubt will also occur into the shocking misconduct which has occurred in the case of Ms Neill-Fraser.
In the meantime, I would suggest that it would do no harm for the Integrity Commission to reconsider its position in relation to this issue while it still has the chance to do so.
Dr Robert Moles ACII (UK) LLB (Hons) (Belf) PhD (Edin)
In August 2019, Tasmania’s Integrity Commission also dismissed the complaint by this journalist against Assistant Police Commissioner Richard Cowling, which raised the contradiction between his statement to the media and the summary of facts presented in court, regarding Meaghan Vass recanting her statement made on 60 Minutes (March 10) in which she admitted witnessing a fight involving Bob Chappell and stating Sue Neill-Fraser was not there.