Andrew L. Urban.
Following two unsuccessful appeals against her conviction for the 2009 murder of her partner Bob Chappell and twice refused leave to appeal to the High Court, Sue Neill-Fraser’s controversial 12 year old conviction is an ideal matter for consideration by a body such as a Criminal Cases Review Commission. And it is not the only case that could seek correction around Australia.
Like other wrongful convictions that have withstood several attempts to be corrected (eg Lindy Chamberlain), the failure of appeals in the Neill-Fraser case has been due not to the robust case against her but the weakness or shortcomings of the appeals that were put to the courts. As Bob Moles and Bibi Sangha put it in their newest briefing paper supporting a national Criminal Cases Review Commission, “her appeals have been unsuccessful despite egregious and fundamental errors having occurred at her trial.” In short, the appeals failed not because the conviction is safe but because of shortcomings exhibited by a) the appeals and b) the appeal judges. (Excluding Justice Estcourt, whose dissenting decision in the 2021 appeal shows up the weaknesses of the decisions by his fellow judges on the appeal bench to dismiss the appeal.) The criminal appellate system is in need of reform, as many agree, including former High Court judge Michael Kirby.
As their latest briefing points out, “the new appeal right (in several states), although welcome, still fails to comply with the provisions of the International Covenant on Civil and Political Rights (ICCPR) and the ‘rule of law’ provisions. The requirement for a ‘higher hurdle’ to access the appeal court for a second or further appeal is in breach of the requirements that people should be treated ‘equally’ before the law, and it also, as we explained, operates to perpetuate injustice.”
And as Michael Kirby has observed, “a new right of appeal without any capacity to investigate potentially delinquent cases is only a pyrrhic victory. Without access to transcripts, any ability to consult with expert forensic experts or to obtain legal advice, the chances of identifying wrongful convictions are almost eliminated.”
Sue Neill-Fraser was released on parole on October 4, 2022, after serving 13 years in jail (of her 23 year sentence). But she, and her family, remain determined to clear her name. The Tasmanian Attorney-General could launch an independent inquiry into her case, as thousands of people are urging. But the A-G has ignored a dozen previous calls for such a review over the years, many from legal professionals. Given that no reason has ever emerged for such refusal in the face of insistent calls, we can only speculate that the fear of a review is based on the knowledge that any such review will bring to light the many reasons why it is necessary – and seriously embarrass the entire politico-legal establishment. There is also the fear of a large compensation payout when the appeal court quashes the conviction.
“it would be quite simple”
If Australia had a CCRC structure in place as envisaged by Moles and Sangha for example, Neill-Fraser’s legal representatives could make their own application to it for a review, as they explain in their latest briefing:
“It would be quite simple to incorporate a single body in Australia called a Criminal Cases Review Commission. Each state and territory could then legislate to grant powers to that CCRC, to conduct reviews of alleged wrongful conviction cases on its behalf, in accordance with criteria agreed with all participating states and territories. Upon completion of reviews giving rise to possible wrongful convictions, the CCRC could refer the case to the relevant state or territory appeal court.
“Alternatively, the lawyers acting for the party or parties could themselves apply for leave to appeal under the legislation allowing for second or further appeals with the support of a report from the CCRC. The main role of the CCRC would be the ability to exercise powers to access documents and materials held by any public or private body (such as police or forensic science centres or prosecution departments) to ascertain if relevant materials have been withheld, or tests have not been properly conducted, for example.”
In other words, the CCRC would itself conduct the equivalent of a review of the case in question – and if found deserving of another appeal, refer the case to the relevant appeal court. (In the case of Sue Neill-Fraser, a CCRC investigation would discover a whole menu of appealable errors.)
Of course, the proposed national CCRC would require (preferably all) states to agree its functionality viz their jurisdiction. It would let politicians off the decision-making hook in some controversial instances ….while one or two states may baulk at that, nervous about the outcomes … but they would have to explain their refusal to cooperate with the scheme, which in ideal circumstances would be championed by the Federal A-G … one who stands for reform! (The criminal justice system doesn’t seem willing to reform itself …)
Moles & Sangha point out that “the main body of criminal law in Australia is legislated and administered by each state and territory. To have a separate review commission for each of them would unnecessarily duplicate administration costs, and inevitably lead to fragmentation with part-time commissioners and investigators. It would also lead to a lack of independence as the review officials would depend upon the state or territory government to continue their contracts.
“A single body providing experienced staff to support multiple states and territories, will develop the specialist and collective body of knowledge and experience to provide an efficient, independent and cost-effective service. If the money currently spent on ad-hoc commissions and inquiries were to be diverted to a proper full-time professional investigative and referral agency with appropriate powers, the time, cost and effectiveness of reviewing cases could be substantially enhanced.
“For example, the inquiry into David Eastman’s wrongful conviction in the ACT cost over $8m with another $6m spent on a retrial which led to a speedy acquittal. The first inquiry into the conviction of Kathleen Folbigg cost well over $2m, sat for 11 months and resulted in a 450 page report which failed to apply basic principles governing criminal appeals. The second inquiry appears to be heading in the same direction. Both inquiries have failed to consider that their role is merely to determine if leave to appeal should be granted. [See the discussion by Bob Moles of this issue in the Mothers Guilt podcast]”
* Dr Robert Moles and Ms Bibi Sangha, Networked Knowledge; Adjunct Associate Professors, College of Business Government and Law, Flinders University.
The rejection by Prosecuting Bodies in establishing a Criminal Cases Review Commission is understandable! It would serve in many cases to prove them incompetent, display defects in “their” system and in some cases maybe even unearth corrupt behaviour seeking to support a conviction. The plea to establish the Commission which is desperately and urgently required will not get off the ground no matter this Labor Government appears to support it, once Prosecuting Bodies get their teeth into the AG his office and staff! We must push back, but to do so without first educating and informing the public is a waste of our time and energy! Legal Movies/shows have convinced the public that Courts are places of – truth, fairness, fact and honour – none of which is true. They are courts of law, as evidenced by Fraser, Zie etc! All criminal trials are a “contest” – almost a game, between the prosecution and the defence, he or she who is the best at their job wins and while the truth sometimes intervenes, it rarely matters, unless blatantly obvious. A verdict of guilty does not mean the accused is guilty. Appeal courts demonstrate this often, likewise a verdict of acquittal does not mean the accused did not offend as charged. Only a National Criminal Appeals Commission completely seated by Members without a judicial past could succeed in exposing wrongful convictions! I just cant see Prosecution authorities lowering their ego standards sufficiently for the AG to push this over the line.
There have been several Cases where Innocent People have been convicted on little or no evidence – What this highlights is just how easy it is for the People in Power to get the Decision they want – Conviction without any Body – or no direct evidence -circumstantial evidence that makes no sense or even relates to the Offence – Disregarding Corroborated Direct Evidence that shows the Person wrongfully convicted – it was impossible for them to have committed the offence – Convict at all costs – Find a couple of witnesses (Usually Criminals who want a Deal) who will give False Evidence to assist in convicting the person – Select a Jury that will come back with a Guilty Verdict – Get the right Person in Judiciary who will support the Prosecution – Planting or disappearing Evidence – and it goes on – With the Support of those in Power – you can get a Conviction on anyone with the right people involved. The Butterworth Case where a Person admitted to Murder and has never been arrested or appeared in Court for the Murder. The decision can go either way – Just depends on what decision you want.
Of course we should have a National Criminal Case Review Commission. Thank you Andrew for continuing to fight for this and continuing to bring attention to this issue.
How difficult can it be to pass the legislation necessary to bring one into being? I suggest the difficulty is in persuading the minds of the judiciary, or whatever body’s support is needed, that a review commission is necessary when the judiciary seems to have invested intellectually and emotionally in the opposite point of view – perhaps because it threatens their power and their sense of invincibility. It is always almost impossible to change another’s point of view after a person has invested emotionally in that point of view because it is a painful process for any person to admit that they were wrong.
And, after all, judges are often so confident of their ability to judge on every issue [not just on the law] that they often make judgements where they override the advice of doctors and others, even eminent specialists in their fields, presumably because they don’t trust those doctors or other experts.
A person could be forgiven for wondering, if one should ever need a lawyer, whether perhaps such a person should instead call for a doctor!! Or an accountant!! or even a bricklayer!!
The point is, that while ever the judiciary, or whoever would support the appointment of a National Criminal Case Review Commission, continues, for whatever reason, to be invested emotionally in the lack of a need for such a Commission, all attempts to get such a Commission are likely to fail.
They have to see the problem not as a theoretical proposition that threatens their power, but from the point of view of being a potential client in need of a Review Commission.
Good points Mary. Human nature is in the way of reform; exactly.
I have conducted a number of investigations into the Tasmanian justice system, the sticking block is Tasmania’s, Attorney-General.
I still have questions to ask both the current & the former Directors of Public Prosecutions.
One discovery was that the former DPP had engaged in a cause to pervert the cause of justice. The case goes back to 2006, the accused had not faced a full trial, & all of the 18 charges had been absolved when the former DPP had called for the discharge of the accused before her Supreme Court trial had begun.
Should the Government “bend” and create a Criminal Cases Review Commission, the Board of same must have civil non lawyer members. When I put this recently to a sitting Justice the response was as expected! “Non lawyers would not be in a position to understand the law and review the evidence according to law”. My reply: You mean Your Honor, like a Jury.
What happened next–did youse both go for it ? You could have sat her on her—-Why were you calling her your honour–I call my wife ” mein Fuhrer “The cause of Wrongfully Convicted outcomes has absolutely nothing whatsoever to do with stinking smart arse law– In fact it’s smart arse law that causes the wrongful conviction in the first place–Justice is not the result of Law. Jusice would have been the outcome for Sue SNF if a big burley CFMEU member ordered judgey wudgey– to bring Vass back into the court for however long it takes for her to loose her terror of the Policeymens–and the DPP. repeat what she already said–she saw Bob Murdered– SNF was not on the boat– this is not law– it’s truth and justice– a completely different animal ! And-and- this crap where “stuff” is discussed behind the juries back- and then the information is then hidden from the jury–the jury foreman says to the judge ” tell us what youse were yacking about or we’ll can you arse !
Well done Tony. That confuses the issue now, doesn’t it.
Re Tasmanian Jury Sue Neill-Fraser, could any of them read or write?
It should be noted that in the UK the CCRC teams conducting reviews are not made up primarily of lawyers – they include people from a wide range of different backgrounds. Of course they have access to legal advice when required, but much of the work requires administrative, investigative and scientific skills for example.
… and common sense might be useful.
It’s not a matter of non-lawyers being unable to understand the law; it’s lawyers,particularly arrogant Judges who do understand the relevant law but REFUSE TO APPLY IT like BLOW C J when he was the trial judge. And then, misapplication of the criminal law by all subsequent Judges right up to, and including the High Court ( with the exception of Justices Estcourt and Brett ).
The hopeless imbalance between criminal cases under appeal across Australia is so obvious yet ignored. Pell is convicted upon in person evidence, the HC of A overturn the conviction against transcripts upon the ground there is reasonable doubt as to his guilt. Then we have Fraser whose guilt is glaringly in doubt, but nothing moves. I say again, that while a Criminal Cases Review Commission is completely warranted and in fact desperately warranted, it is the competitive nature the competition between crown and defense both competing for a win, that must be addressed.
Absolutely Tony. The adversarial system has injustice built into it. Williambtm’s point about our A-G being a blockage to any inquiry at all would surely apply to a CCRC or any similar “threat” to our comfy politico-police-justice system. However if we (as many writers to the Mercury are now belatedly urging), chuck out the corrupted Liberal Government come the next election, there would be a reasonable chance of judicial reform. I’m reminded of the 2022 election, which threw out a decade of Liberal governments and as a result all sorts of reforms are now being implemented that would be impossible just a year ago.
A National Criminal Commission is long overdue.
Any innocent person in an Australian Jail is a disgrace.
Thank you Andrew for continuing the Wrongful Convictions Report.
What do we want? A National Criminal Case Review Commission.
When do we want it? We want it now.
Thank you very much