Reopening Sue Neill-Fraser appeal – a step by step guide

Hugh Selby.

How righting the wrong done to Sue Neill-Fraser can be done with speed, civility, and be a credit to the court and the legal profession. 

1. The persuasive reasons why Sue Neill-Fraser [SNF] must have a re-opened appeal and leave that court with an acquittal have been set out in earlier papers in the Etter/Selby series that began on 1 August 2021.
2. To maintain public confidence in the courts and our legal system the application for leave to re-open should be made by the State’s first Law Officer, that being the Attorney, who should brief senior counsel from interstate. That the Attorney has the power to do so is beyond doubt (as shown by the Queensland example in 2007 when their Attorney presented an indictment for manslaughter against police officer Hurley arising from an incident on Palm Island in 2004). I note, with some dismay, that during these two weeks a long time supporter of the Attorney’s party wrote to her office asking her to ‘put it right’. Her short, but wholly misleading response was to say that ‘the separation of powers’ meant that she couldn’t do anything.
3. If the Attorney won’t seek leave then the application must be made by the SNF legal team who should be guaranteed funding by the Attorney.
4. Meanwhile the DPP must file his correction of what he wrongly said in answer to a query about Mr Conde’s evidence and the “grey” dinghy from Justice Estcourt at the March 2021 appeal.
5. While the ODPP would usually appear as respondent to the appeal, that is not appropriate for this case for the following reasons that arise from the content of the recent papers:

• The ODPP failed to disclose information to both its Director and the Defence before and during the 2010 trial (e.g. see Peter Lorraine contemporaneous notes and Folder 13 of the Sinnitt investigation folder re Meaghan Vass);
• The previous Director has admitted in 2017 to being inadequately briefed for the expert witness evidence regarding luminol at that trial;
• With knowledge of a ‘conflict of interest’ regarding the evidence led in the Crown case about both Peter Lorraine and the luminol, the present Director permitted a ‘conflicted’ staffer to have an important role in both the preparation and the presentation of both the leave to appeal and the March 2021 appeal;
• At the ‘leave to appeal’ hearing, a member of the ODPP cross-examined a Crown witness from the trial, called by the SNF team, and failed to disclose knowledge of a prior inconsistent statement by that witness when that statement was adverse to the Crown case (see T 139-140, 31 October 2017);
• The present Director has made complaints or threats to complain against Ms Etter both before and during the Leave to Appeal period, including in relation to luminol, when such complaints are wholly rebutted by the transcript of the proceedings. There is an additional complaint from the Director in 2014 that Ms Etter stated on her website blog in 2014 that “inappropriate reliance” had been placed on the presumptive testing of the Four Winds dinghy. The LPB alleges that this was stated “when the jury had not been told that Chappell’s blood was found in the dinghy and there was no reasonable basis for making the statement”.  Readers of the papers these past two weeks can assess the legitimacy of that complaint;
• Moreover, the current Director has failed to file an affidavit in the resultant disciplinary proceedings against Ms Etter and has instead had another member of the ODPP, with no actual knowledge of the complaints, file the necessary affidavit. By so doing he has avoided being cross-examined on his complaints; and,
• From 2014 until the present the conduct of the Director has been antithetical to an approach by both parties that would assist the CCA to determine the merits of the Appeal in an efficient and expeditious manner.

6. Given the inappropriateness of the DPP or the ODPP representing the Crown it will be necessary to appoint an independent, highly regarded interstate Senior Counsel, instructed by an interstate solicitor with proven criminal practice at trial and appellate level to act on behalf of the Attorney.
7. It is a matter for the members of the current SNF team as to whether they wish to continue or not. However, from this moment forward, those representing Sue Neill-Fraser should come from interstate and be paid by the State of Tasmania. The time for pro bono or underfunded representation is over.
8. There is a fundamental notion attached to prosecuting, described as the prosecutor being a ‘Minister of Justice’.  Given what has been exposed in the last two weeks in the Etter/Selby series an independent prosecutor has much to gain by working with, rather than against, the SNF team in the pursuit of too long delayed justice.
9. In the spirit of assisting both parties to reach the just result as quickly as possible, Barbara Etter is willing to sit down with both sides as they examine the detail behind the content of our papers. Undoubtedly, she has a better collection of relevant documents and a better mastery of the facts on the issues raised than anyone else.
10. Just as the ODPP can have no role in the quick and just resolution of the dozen years of injustice, so too TasPol will have to be replaced by officers borrowed from another police service, and forensic officers from another forensic agency (preferably one independent from police), if required.  Putting to one side the many inadequacies in their performance before and during the 2010 trial, the history of their obstruction in the years since compels the conclusion that police command is dedicated to keeping the conviction in place no matter what. Within the papers released these past two weeks has been information about their refusal to deal with the misleading evidence of their FSST staffer, their failure to recheck crime scene and other evidence, and their recent refusal (qualified at this stage) to release pertinent information requested under RTI.
11. Of great concern is their response following Ms Vass’ 2017 statement and her 2019 sworn statement. They knew it was her DNA on the yacht and they had known that since 2010. Nevertheless, they merely went through the motions with respect to inquiries. An example is the interview with one of the males named by Ms Vass as being on the yacht with her.  In 2019 they released a false press release that she had retracted her admissions.  But more than those shortcomings the fact that there has been no public raising of discussion between and among the ODPP, TasPOL and the Attorney as to giving Ms Vass ‘immunity from prosecution’ sums up the ‘We’ll find nothing here’ approach by these entities.
12. So soon as Ms Vass made her first statement contradicting her first sworn evidence at trial the ‘criminal law’ and its processes were engaged. Quite apart from possible perjury charges against her there were the possibilities that arose from accessory, common purpose, and joint criminal enterprise.  It is absurd to suggest that Ms Vass would want to co-operate without the benefit of an immunity. Further any competent follow up inquiries by police would require that they had a lot more detail from her, so that any interview of a person or persons that she named were properly prepared.
13. Supposing, sadly, that the suggestions made here and earlier are ignored by those to whom they are principally addressed, and if the CCA – deprived of relevant, probative material – dismisses the appeal, then there remains open either or both of the following:

• An application for special leave to the High Court of Australia; and,
• A Parliamentary Inquiry or a Commission of Inquiry.

14. Given the content of the Etter/Selby series, and its distribution, there are some grounds of appeal that might be of considerable interest to the High Court. Such an application cannot be run by the present SNF team but others could carry the fight to that court.
15. An Inquiry should cover rather wider ground than an appeal limited to the law and the facts of this case. It might, for example, examine the systemic issues of failure by police, the ODPP, the FSST, the Integrity Commission, and the Legal Profession Board.
16. Any independent inquiry would, of course, be interested not only in the sad and sorry saga that has been Sue Neill-Fraser’s lot, they would also be interested in why people with the power, indeed the obligation to act, chose to do nothing even after the facts were laid before them.

The Chronology of New and Concerning Evidence by Barbara Etter APM and
Hugh Selby 1-16 August 2021 – The Etter/Selby Series

2. 1 August What TasPOL knew and ignored from late 2008 about Meaghan Vass and Her Associate Sam Devine. A saga of defective investigation, failure to disclose and why that matters
3. 4 August What TasPOL knew and ignored from late 2008 about Meaghan Vass and Her Associate Sam Devine. A saga of defective investigation, failure to disclose and why that matters (Revised –55 pages – including 27 June 2012 quote from Det. Insp. Peter Powell on covering page)
4. 9 August SNF – Why is it OK? (5 pages)
5. 11 August Crown Failure to Disclose a Critical Handwritten Note (35 pages)
6. 12 August The Misleading of the CCA by the DPP – The Grey Dinghy seen alongside the Four Winds (7 pages)
7. 13 August There was No Evidence of Blood in the Four WindsDinghy (13 pages)
8. 15 August The Red Jacket in the Sue Neill-Fraser Case – Yet Another Example of Non-Disclosure (10 Pages)
9. 16 August How Righting the Wrong Done to Sue Neill-Fraser can be done with Speed, Civility, and be a Credit to the Court and the Legal Profession (Email with attached Chronology of Submissions 1-16 August 2021)

   The above documents have been sent to the Attorney-General and others, including the ODPP and the SNF legal team.