Andrew L. Urban
Given the failures of two previous appeals by Sue Neill-Fraser against her discredited murder conviction, Tasmania’s legal system is still defying serious scrutiny. The latest Etter/Selby report highlights both the reasons and the need. Former Tasmanian Attorney General Elise Archer’s unsustainable reasons for refusing to establish one provide an instructive backdrop.
In the first months of 2023, members of the Sue Neill-Fraser Support Group individually wrote to Tasmanian Attorney-General The Hon Elise Archer, once again urging her to establish a review into the case. The Attorney-General once again rebuffed the requests, citing grounds that cannot be sustained. She writes:
The separation of powers between the Executive, Judiciary and Parliament is an important cornerstone of our system of government. This means that Tasmanian courts hear and decide cases, independent of and without influence from, the government of the day. Similarly, the Director of Public Prosecutions, who prosecutes crimes in the Supreme Court and conducts appeals, exercises his or her functions independent of and without influence from the government of the day. This ensures there is no political, sectional or other interference.
This view seems to be contradicted by the Attorney’s own actions. On May 4, 2023, she intervened to direct the coroner to hold an inquest into the death of Jari Wise, a man who died after being struck by a car driven by his former partner, overturning a Supreme Court decision made just hours earlier. Asked if this was the first instance of an Attorney-General intervening in this way, the Justice Department said it “is not aware of a similar direction having been made”. Yet reviews have been held in the NSW cases of Kathleen Folbigg’s murder convictions and Bruce Lehrmann’s abandoned rape allegation in the ACT, both established by the Attorney-General of NSW. The establishment of an independent review by the Attorney-General would not constitute political interference. Rather, it would demonstrate respect for justice.
Archer confuses asking a question with directing an answer.
no principle of finality
As you may know, our Government amended the Criminal Code Act I 924 to allow for a further application to the Court of Criminal Appeal in cases where there is further evidence that is ‘fresh and compelling.’ This provides for further judicial review of matters, such as Ms Neill-Fraser’s conviction, and a Commission of Inquiry has not been shown to be needed or justified in Ms Neill-Fraser’s case.
This statement can only be maintained by ignoring the long list of outstanding errors which have not been considered by the courts. The Attorney also ignores the number of legal practitioners (among others) that have called for an inquiry over the years.
Ms Neill-Fraser and her experienced legal team took the opportunity to make an application under this new law. Ms Neill-Fraser also later made an application for special leave to the High Court. In both instances, the applications were dismissed by the respective courts.
One of my duties as Attorney-General is to uphold the rule of law. This means ensuring that a case is adjudicated independent from the executive arm of government. Tasmania and Australia’s highest courts have each now considered Ms Neill-Fraser’s case in great detail. It is important that the courts’ decisions be respected. For me not to do so would undermine the rule of law and the judiciary.
This argument is specious. It conflates the appeal heard in the Supreme Court with the application seeking leave to appeal to the High Court. For reasons that show the then DPP in a poor light, the High Court refused leave to hear the appeal; it did not hear any arguments on the ground of the proposed appeal. There is a long history of court decisions (convictions) overturned after several appeals were initially lost.
In short, Archer is trying to assert the notion of ‘finality’ as a reason for declining to establish any sort of commission of inquiry into the case. But “final” does not mean infallible.
The notion of finality in criminal cases is a myth that attempts to prioritise expediency over equity. The reality of wrongful convictions, coupled with inadequate appeals and the advantages of corrigibility (or correctability), demands ongoing review. True justice is not static; it evolves with evidence and empathy, ensuring that no conviction is beyond reproach.
Australian legal scholar and professor David Hamer has critiqued the heavy application of finality in post-appeal reviews, arguing it hinders wrongful conviction corrections. As Graham Zellick, CBE, QC, Chair of the Criminal Cases Review Commission in the UK has said: “There is no principle of finality. If it is thought that a mistake may have been made, the public interest demands that it be put right … the principle of finality has no place in the criminal law, not in our system.”