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.”
We, who have been through this corrupt injustice system know they dont want us to have an independent review board and it simply boils down to, they dont care how many lives they destroy so long as they close a case and get a conviction.
They will not admit they are wrong as it will cost too much money if all the innocent people are let out.
IT IS ALL SO UNFAIR AND TRUTH DOESNT MATTER
IT IS SOUL DESTROYING AND THERE IS NO JUSTICE
IN THIS CORRUPT SYSTEM
I agree with QC Graham Zellick Chair of Criminal Cases Review Commission in the UK…..pity we cannot claim a just legal system in Tasmania. Tasmanian Attorney General Archer cannot be considered “Honourable” in my mind…….she needs to be able to consider the poor performance of police, justice system and the judiciary.
The Indefensible Refusal: Why Tasmania Cannot Justify Dismissing the Sue Neill-Fraser Review
In 2010, the conviction of Susan Neill-Fraser for the murder of her partner, Bob Chappell, proceeded on circumstantial evidence, lacking the critical anchors of a body, a murder weapon, or corroborating eyewitness testimony. For over a decade, this case has been a flashpoint for systemic criticism, fueled by new forensic evidence and persistent revelations of investigative failures.
The latest comprehensive critique, the November 2025 Etter/Selby report, has brought the urgency for an independent review to a head. However, the former Tasmanian Attorney-General Elise Archer dismissed these calls in 2023, hiding behind legal concepts of separation of powers, judicial finality, and the supposed adequacy of existing appeals.
This analysis argues that these excuses are not sustainable legal barriers but rather political fallacies that prioritize administrative closure over truth. By critically examining the specific failings of the investigation, the hypocrisy of selective executive intervention, and the clear success of corrective reviews in other jurisdictions, it becomes clear that Tasmania’s continued defiance is indefensible and fundamentally undermines public confidence in the rule of law.
The Myth of Appellate Sufficiency and Unexamined Evidence
The official defense of relying solely on existing appellate mechanisms is intellectually bankrupt when key evidence has never been fully or correctly placed before the courts. The Etter/Selby report highlights a shocking list of police shortcomings that demand external scrutiny. The investigation, which secured Neill-Fraser’s conviction, failed to rigorously pursue alternative leads, including credible suggestions of involvement by Chappell’s adult children or associates. Crucially, Right to Information requests later confirmed that critical inquiries were made but not disclosed to the defense or the court, constituting a fundamental breach of transparency duties.
Furthermore, post-conviction analysis, integrated into the parliamentary tabling in 2025, reveals significant problems with the initial forensic interpretations, specifically concerning blood spatter and DNA tracing.
Where contamination risks and inconsistencies were minimized or overlooked, new scientific perspectives now align the Neill-Fraser case with the 70% of Australian wrongful convictions attributed to deeply flawed investigative practices. When appeals are dismissed, often on procedural grounds, as was the case with the High Court’s refusal of special leave the system perpetuates a cycle of doubt.
The failure lies not with the judiciary’s capacity, but with the failure of police and prosecution to provide all the evidence initially. Therefore, an independent, non-judicial review is necessary not to re-try the case, but to assess how the state’s agencies originally handled the path to conviction.
The Finality Fallacy: Prioritizing Closure Over Correction
One of the most commonly invoked arguments for resisting a review is the principle of judicial finality—the idea that court decisions must be respected to maintain the rule of law. This concept, however, is a dangerous administrative convenience, not a pillar of modern criminal justice. Australian legal scholar David Hamer has eloquently criticized this “heavy application of finality in post-appeal reviews,” arguing it actively “hinders wrongful conviction corrections” by prioritizing efficiency over accuracy.
This sentiment is echoed globally. Graham Zellick, former Chair of the UK’s Criminal Cases Review Commission (CCRC), stated plainly that “The principle of finality has no place in the criminal law.” The fact that the Tasmanian Criminal Code was amended in 2016 to allow for appeals based on “fresh and compelling” evidence implicitly acknowledges that convictions are not infallible.
Yet, when faced with overwhelming evidence that the legal system may have made a grave mistake, the state uses the very idea of finality as a shield. True justice is corrigible, it must evolve with evidence and empathy. To insist on finality in a case where substantial doubts exist is to choose administrative ease over the moral imperative to correct a potential wrong.
Exposing the Hypocrisy of Selective Intervention
Archer’s insistence that a review would breach the separation of powers is dismantled by her own contradictory actions. In 2023, she made an unprecedented executive decision to direct a coroner to proceed with an inquest into the death of Indigenous man Jari Wise, directly overriding a recent Supreme Court ruling that had denied it. This move the first of its kind demonstrates that the political will and the executive power to intervene do exist when public or political pressure is sufficiently high.
The difference in approach is striking: if overriding a judicial decision to launch an inquest is permissible and even lauded on humanitarian and public interest grounds, refusing to launch a non-binding review into a potential wrongful imprisonment must be seen as a choice, not a constitutional necessity. As critics have noted, a review simply poses questions about systemic failings; it does not dictate a court’s eventual verdict.
By making such selective use of executive authority, the former Attorney-General exposed the judicial independence argument as a self-serving pretext for maintaining the status quo, thereby actively eroding public trust rather than preserving it.
Reviews as an Enhancement to Judicial Integrity: Precedents
Tasmania’s reluctance also ignores compelling precedents where executive-led inquiries have successfully strengthened the legal process. In New South Wales, Attorney-General Mark Speakman initiated a judicial inquiry into the conviction of Kathleen Folbigg. Chaired by a former Chief Justice, this inquiry successfully reviewed original trial evidence against new genetic data, concluding that “reasonable doubt” existed.
This external, executive-initiated process led directly to Folbigg’s pardon and the quashing of her convictions, showcasing how a targeted review can uphold the rule of law by integrating fresh scientific truth.
Similarly, the ACT’s Board of Inquiry into the Bruce Lehrmann aborted rape trial investigated prosecutorial conduct and agency coordination. These models are proof that executive oversight can provide an essential, arms-length corrective function without directing judicial outcomes. They demonstrate that rather than interfering with justice, a well-structured inquiry enhances it by identifying systemic flaws and ensuring that the pursuit of truth is comprehensive—a lesson that Senator Andrew Wilkie and MLC Meg Webb have repeatedly urged Tasmania to learn.
Conclusion
Elise Archer’s arguments for dismissing an independent review—separation of powers, judicial finality, and appellate sufficiency, are rendered indefensible by the systemic evidence outlined in the Etter/Selby report, the hypocrisy of her own executive intervention, and successful precedents across Australia.
To persist in this refusal is not only to prolong a potential injustice for Susan Neill-Fraser but to signal that Tasmania’s legal system is resistant to self-correction. True justice is built on accuracy, not expediency.
The only path forward is the establishment of an independent, arms-length mechanism; perhaps modeled on a Criminal Cases Review Commission, to finally honor the evidence and restore integrity.
I did read along with this disgraceful attempt at justice. Good luck to you guys for keeping on trying. One day the truth will come out.
The most glaring rubbish put as evidence is the DNA found on the deck of the 4 winds. That it was possibly put there from the boot of one of first attendants is so rediculas to be a Banham and Bayley clown act.
Lets look at what was said and I am recalling it from memory.
A first attendant could have trod on the DNA on the esplanade. Lets run with that. For the DNA to find its way to the deck and only in one place! The alleged respondent would have to hop all the way to the boat that took him or her out to the 4 Winds. Hopped onto the taxy boat without comment by the others on the boat! Held his boot of the deck of the taxy boat until it reached the 4 Winds without comment! Climbed onto the 4 Winds using hands and one leg again without comment! Hopped to the place where the alleged DNA was found in quantity? Put his boot down in that specific place. And then hopped away and cleaned the boot of the DNA so it was not found in any other place on the deck? Barnham and Bailey in the extreme? But representative of most of the evidence against Sue.
I do hope that Sue gets the correction she so gracefully deserves.
Stephen Berry