Andrew L. Urban.
Former Hobart prosecutor Tony Jacobs has reviewed the case of Sue Neill-Fraser and found many reasons for the conviction to be overturned, urging the Law Society to “help correct this injustice, the product of our Tasmanian legal fraternity.” On November 15, 2022, Independent member Michael Gaffney tabled the Jacobs documents in Tasmania’s Legislative Council – but the Attorney-General has refused all calls for an independent review.
Jacobs was responding to Law Society President Simon Gates, who published a letter in the Hobart Mercury worried that sustained criticism about the case was undermining confidence in the legal system and called for critics to consider all of the evidence. Jacobs did just that – and sent his review to Law Society Executive Director Luke Rheinberger, pleading “Savagely scrutinise my words, but if you cannot fault them, please speak up to help correct this injustice, the product of our Tasmanian legal fraternity.” He is especially critical of the late David Gunson’s defence of Neill-Fraser, calling it “flagrant incompetence” and on its own enough to quash the conviction.
Jacobs (retired since 2020) reveals “serious matters never before raised,” which “show that her conviction in October 2010 should have been immediately overturned.” Those serious matters are critical of the legal fraternity and include:
# flagrant incompetence by defence counsel, the late David Gunson,
# the failure of the solicitors lodging her 2011 appeal to raise these issues,
# the failure of the solicitor lodging her 2012 High Court appeal
# and “the failure of the Tasmanian Appeal Court in 2012 to, of its own motion, raise these issues.”
Jacobs, pointing out he concentrated on the legal issues, begins by listing his research: “I have done what Simon requests. Read all 1550 pages of the trial transcript. Read the decision of the 2012 Appeal Court. Read the 18 page in total 7/9/2012 High Court hearing and decision. Read Mr Justice Brett’s decision. Read the total 544 paragraph November 2021 decision and other materials. Quite a few of these I’ve read more than once. Simon said that the jury found that based on the evidence as a whole, there was no rational hypothesis consistent with innocence. But that verdict was based on what they heard and were told.”
Jacobs goes on to provide extensive instances of errors, and includes examples of appeal judge Justice Wood making excuses for Gunson’s inaction on several occasions. Jacobs concludes, “I suggest he (Gunson) was simply out of his depth”.
Simon Gates made the point that so many judges had been involved; “Fair enough,” comments Jacobs, “but I suggest that Mrs Neill-Fraser was met with a Catch 22 situation whichever way she turned after the trial.”
Jacobs doesn’t say this, but the fact that so many judges were involved yet still there remains a wrongful conviction makes Gates’ observation counter productive and helps to further undermine confidence in the legal system.
Jacobs says near the end of his letter that “obviously with my background I have an interest. “I would have been very happy to find that all was just and above board. It clearly was not and is not. I feel that I have a strong moral obligation to speak up.”
The Simon Gates letter was published on August 23, 2022; Tony Jacobs’ review was sent to the Law Society on September 27, 2022. At time of writing, November 15, 2022, there was no response from the Law Society.
But even before his September letter to the Law Society, Jacobs had written to Attorney-General Elise Archer in January, suggesting an ‘Enquiry Panel’ comprising three retired mainland judges. Archer claimed impotence as the matter was then still before the courts. Jacobs wrote to her again in September with a copy of his submission. In October, Archer replied, predictably enough, claiming that highest courts had considered the case in great detail.
That response is stone-walling; no Attorney-General across her portfolio could fail to know enough of this controversial case to understand that, as Gaffney’s speech on November 15 pointed out, “the courts are only ever as good as the evidence put before them and the appeal courts are only ever as good as the points of appeal put to them, and vulnerable witnesses are only as good as the protection an d support provided to them. When the system fails, or more to the point, when lawyers fail, miscarriages of justice can occur and it is up to the First Law Officer of the Land to recognise these failures and address them.”
Gaffney also turned back on Archer her pleading that the courts decisions be respected or risk undermining the rule of law and the judiciary. “To be deliberately blind to [those failures] is what will undermine confidence in the legal system.”
Gaffney also revealed that “Robert Richter KC and David Edwardson (Jeff Thompson’s lawyer in the prison surveillance device matter), wrote to the Attorney-General some four weeks ago a detailed letter also calling for a Commission of Inquiry. They are yet to receive a response.
“Mr President,” added Gaffney in conclusion, “I call upon the Attorney-General to establish a Commission of Inquiry into the Sue Neill-Fraser conviction and wider systemic entrenched issues in our justice system which may have led to other miscarriages of justice in Tasmania too.”