Calls for Tas Attorney-General to re-open SNF appeal
Media release 31 August 2021
Statement from former top policewoman and lawyer, forensic expert and inaugural CEO of the Tasmanian Integrity Commission, Barbara Etter, and qualified lawyer and former Premier of Tasmania, Lara Giddings
On 31 August 2021, in the Legislative Council of Tasmania, Michael Gaffney MP tabled critical papers written by Canberra barrister, Hugh Selby, and former senior police officer, inaugural CEO of the Integrity Commission in Tasmania and lawyer Barbara Etter APM.
These papers demonstrate the inadequacy and impropriety of the police investigation into Bob Chappell’s 2009 death, police non-disclosure to the Office of the Director of Public Prosecutions (ODPP), non-disclosure within the ODPP to the then Director, and non-disclosure by the ODPP to the Defence, all of which has led to a miscarriage of justice for Sue Neill-Fraser (SNF).
Note: SNF has been locked in Risdon Prison for more than 12 years, serving a 23-year sentence for allegedly killing her husband, Chappell, on board the Four Winds yacht moored in Sandy Bay Hobart on the night of Australia Day 2009 – Ed.
Ms Etter was part of the Sue Neill-Fraser team until mid 2017. She began the appeal process as the solicitor in December 2015 seeking leave for the Appeal Court to receive fresh and compelling evidence. The matter was finally heard by the Appeal Court in March of 2021 and a decision in relation to that case is yet to be handed down.
“The issues raised in our papers are not currently before the court and therefore there is no issue in discussing these matters in the public arena and that of the Parliament.
“The only matter being considered by the court relates to the DNA evidence of Meaghan Vass and the associated legal considerations, which these papers do not address.”
Ms Etter said that she had forensically studied all the evidence she could access in relation to the Sue Neill-Fraser case over the past 9 years.
“I have used Right To Information as well as material disclosed to me in related matters to uncover critical evidence, some of which was not known to the defence at the time of the original trial or thereafter.”
Ms Etter said that she and Mr Selby had written to the Attorney-General (Elise Archer) with a copy of their series of papers requesting her to use her common law powers, as the First Law Officer of the State, to seek to have the current appeal reopened in the Sue Neill-Fraser case.
“So far our efforts have fallen on deaf ears.
“Our Attorney-General must ensure justice is done in our State.
“She has a duty to protect all Tasmanians, including those wrongly convicted of a crime.
“The evidence is stark that there have been a number of matters in this case which were either not investigated properly at the time, or important evidence not provided to the Prosecutor or the Defence at the time of the original trial.”
Former Premier and Attorney-General, Ms Giddings said that there was no issue with the separation of powers as the Attorney-General has the necessary powers under the common law.
“There is nothing in the Tasmanian DPP Act that extinguishes this right.
“The Attorney-General may override a decision of the DPP to prosecute or not prosecute a case or take over proceedings in which the DPP has appeared, at will.
“While such powers should be rarely used, they continue to exist for extraordinary circumstances such as that we now find ourselves in.”
Ms Etter said that it was not too late for the Attorney-General to seek leave to reopen the case, so that this material could be immediately considered by the Court of Criminal Appeal (CCA).
“A decision of the CCA could be handed down any day so there is a degree of urgency.
“To delay taking action will mean Sue having to once again go through a long and slow process of seeking leave to go back to the Court of Criminal Appeal to have these matters heard.
“The last time this happened it took over five years to get to the point we are at today.”
Ms Giddings said we cannot, with clear conscience, put Sue Neill-Fraser through that process again, when we have an opportunity through the Attorney-General to re-open the case now in the public interest. Moreover, the current Office of the DPP is conflicted.
“It is critical that the Attorney-General immediately turn her mind to the evidence that Barbara Etter and Hugh Selby have presented to her.
“Sue has already spent twelve years in prison for a crime, which on the evidence contained in these papers, I believe an objective and open-minded person would not believe she committed.
“It is time for the court to hear all the evidence and understand how this miscarriage of justice has taken place.”
Backgrounder:
BARBARA ETTER’S EXPLANATION – PROVIDED IN THE PUBLIC INTEREST
1. The Etter/Selby series (1-16 August 2021) sent to the Tasmanian Attorney-General and others is a result of a close collaboration between Barbara Etter APM and Hugh Selby over the last 8 years.
2. Barbara and Hugh released the series in the public interest, as well-informed community members, because the legal “system” had failed Sue Neill-Fraser. Publication was assisted by former Premier and Attorney-General, the Hon. Lara Giddings.
3. All the assertions in the series can be substantiated with documentary evidence drawn from:
- RTI requests over the years;
- correspondence and advice from the Integrity Commission and Tasmania Police;
- Eve Ash documentary footage (in relation to important comments by Det. Inspector Peter Powell in mid 2012);
- relevant court transcripts and exhibits;
- the Sue Neill-Fraser leave to appeal Application Book from 2016;
- police affidavits; and
- those documents that were disclosed by TASPOL and the ODPP to SNF prior to (or mid) trial and prior to the leave to appeal hearing.
4. Important material was also accessed due to subpoenas issued by the Legal Profession Board [LPB] to Tasmania Police and the Integrity Commission.
5. Barbara drew on her 30 years’ policing experience in three jurisdictions and at the national level (including as Director of the then Australasian Centre for Policing Research (ACPR) and a member of the Australasian Crime Commissioners Forum), as well as her forensic science and legal knowledge and skills to analyse/dissect the Crown case against SNF.
6. She had also had previous experiences in miscarriage of justice issues, including assisting in the resolution of the Andrew Mallard matter in WA as the Assistant Commissioner, Corruption Prevention and Investigation, WA Police (where non-disclosure by the Crown was a key issue). She had also studied the Lindy Chamberlain case and the Morling Inquiry in an official capacity and was a co-author of the report from the forerunner to the ACPR in 1987 entitled “Coordination of Forensic Science in Australia” which eventually led to the National Institute of Forensic Science.
7. Key documents in unravelling what occurred were the Police Investigation Log (or handwritten running sheets) and the Sinnitt investigation folder which was disclosed mid trial, but after the evidence of both Meaghan Vass and forensic scientist Carl Grosser. That material was relevant to both the nature of the DNA sample and how that sample was seemingly left on the deck of the yacht, and the scope and nature of investigations conducted into break-ins on yachts and Meaghan Vass and her associates (including the investigation concerning Mara House and Meaghan Vass’ mobile phone records).
8. The Sinnitt investigation folder was neither an MFI (Marked For Identification) nor an exhibit at the 2010 trial. Barbara made specific inquiries to locate the file as it was not in the materials provided to her by previous lawyers.
9. Barbara undertook an exhaustive analysis of the police investigation and forensics, along with the extent of disclosure by police and the ODPP. Over the years, she has extracted information piece by piece from Police, FSST and the Integrity Commission. Some documents still remain redacted and Sue Neill-Fraser has not benefited from a full disclosure of information sought.
10. Barbara sought expert forensic assistance on key issues such as the luminol, the winching exercise/”reconstruction” and the Meaghan Vass DNA sample.
11. The 9 years that Barbara has spent investigating this miscarriage of justice have had a significant toll on her reputation, livelihood, savings, and mental health. She is very appreciative of those friends, family and colleagues who have supported and assisted her over the years, including members of the Sue Neill-Fraser Support Group.
12. Barbara misses the opportunity to contribute to integrity and justice issues in this State as a practising lawyer and will be vigorously defending her professional disciplinary matters in the Supreme Court in November 2021, where her competence and ethical conduct as a lawyer are being questioned. There is considerable overlap between the Sue Neill-Fraser matters and the subject matter of several of the complaints currently being pursued by the Legal Profession Board (LPB).
13. Barbara was referred to as a “hobby lawyer” in the Supreme Court by counsel representing the LPB. She hopes that, after her long years of pro bono and effective work on the Sue Neill-Fraser case, the fair-minded among her detractors will do the right thing.
14. As a result of what has been exposed to date, Barbara proposes to work with others to achieve:
- A powerful, far reaching and independent Inquiry into the Sue Neill-Fraser miscarriage of justice and the associated collateral damage for her and others;
- Public accountability for those people who by acts or omissions contributed to wrongdoing arising from the investigation and disclosure practices, the 2010 trial, and later hearings in the Sue Neill-Fraser saga;
- Public accountability for those people involved in any improper, associated collateral damage;
- a national or multi-jurisdictional Criminal Cases Review Commission as exists, or is proposed, in the UK, Norway, Canada and NZ;
- appropriate protections for “whistleblowers” or those prepared to legitimately challenge the “system” in the public interest who sit outside of the public sector;
- ‘root and branch’ reform to the Integrity Commission and the LPB, including significant legislative changes to the Integrity Commission Act 2009 and the Legal Profession Act 2007;
- major reform of Tasmania Police investigative practices, including enhanced supervision, management, leadership and review of major investigations (including professional standards matters);
- reform of the Coroner’s jurisdiction to ensure procedural fairness to those adversely mentioned in Coroner findings and comments;
- the taking down from the internet of the Coroner’s decision in Greer (2017) or, if it is to stay there, the addition of an explanatory note that identifies parts of that decision as breaches of the Coroner handbook requirements for good practice (See the Tasmanian Coronial Practice Handbook (2016) pp.122, 149 and 157);
- a Judicial Commission, as exists in NSW and Victoria, to which complaints can be made and thereafter properly investigated;
- a University based Innocence Project with appropriate seed and ongoing funding and support from Government; and
- a truly independent and professionally accountable forensic science service in Tasmania, along with a proper national oversight body for forensic science issues in this country as exists in the UK (i.e. the Forensic Science Regulator).
15. Barbara was publicly challenged by the Police Association of Tasmania in 2014 to “put up or shut up”. She has now “put up”. They might now like to join her in pressing for better training and development, as well as policies and procedures and systems, for important police work. Justice demands comprehensive reform.
ENDS
SPEECH by the Hon Michael Gaffney to the Legislative Council of Tasmania
31 August 2021
Mr President,
This is my first adjournment speech in 13 years of representing Tasmanians, but this is a very serious issue, which I believe deserves the attention of the Hon. Members in this Chamber.
My intentions are first to bring us together to right a wrong, and secondly to have the Attorney General join us in that quest.
Many of us would be aware that Sue Neill-Fraser has spent 12 years in prison for the murder of her partner, Bob Chappell, on the Four Winds yacht on Australia Day 2009.
Our community has been divided about her guilt, some being certain that her guilt was well established, others not giving up the fight to clear her name.
Mr President, this case will not rest – and for good reason.
We have all received the recently published papers by Hugh Selby and Barbara Etter, sent to us by former Premier and former Attorney-General, Lara Giddings.
None of us can ignore these papers establish a miscarriage of justice, now that we are aware of the following issues:
1. An inadequate investigation and tunnel vision by police, which led to obvious lines of inquiry being ignored or barely followed up.
2. Police failure to provide to the Office of the Director of Public Prosecutions (ODPP) the full disclosure of all relevant information.
3. Failures within the ODPP to ensure that their Director and the Defence received all the material supplied by the police.
4. False evidence being put before the jury.
5. A ‘conflict of interest’ within the ODPP so that personal interests have interfered with the proper conduct of the case.
6. An acquiescence in delay that entailed that Ms Neill-Fraser’s application for leave to appeal took over three years.
7. Further delays so that the prisoner then waited almost another two years to have her appeal heard.
8. Despite several sound appeal grounds being available, the March appeal was run on one issue only, for which the only witness – a young woman – was not adequately prepared, managed or supported. During cross-examination her evidence was ‘abandoned’ by those who had intended to rely upon it.
9. The Appeal court being misled in final submissions by an incorrect answer from the DPP about the significance of the sighting of another dinghy, a grey dinghy, alongside the yacht at a critical time.
Mr President, central to the case are the sworn admissions in 2019 of that young woman that she was on the yacht that Australia Day with named males and that Bob Chappell was assaulted. She also stated that Ms Neill-Fraser was not there.
Supporting her admission that she vomited while on the deck of the yacht was a large DNA sample on the deck which was matched to her in March 2010, 7 months after Ms Neill-Fraser’s arrest. At trial this DNA was said by the prosecution to be “secondary transfer” and a “red herring” and not left there by the young woman. However, it’s clear that she left it. It’s also clear that in 2010 one of our local forensic scientists thought so too.
Tragically and inexplicably, the young woman was never offered immunity from prosecution – that is quite extraordinary as it must have hampered any proper inquiries about those males she named.
So far attempts to get the Attorney-General, The Hon Elise Archer to involve herself in this case have been rebuffed with the reasons that this is before the courts and that such involvement would offend ‘separation of powers’.
Mr President, it is true we cannot speak of matters before the court, and I am being careful not to. But we can speak of matters not before the court, which are the issues I highlight tonight and that are so well documented in the Etter/Selby papers.
Issues that were not presented at this year’s Appeal in early March include:
1. Neither the Prosecutor nor the Defence knew that “key” evidence allegedly showing the yacht’s dinghy, a white with blue trim Zodiac (and hence Sue Neill-Fraser), to be at the yacht at 5 pm was false. However, a police officer and a DPP officer, both at the trial, knew otherwise. The supposed presence of that dinghy supported the prosecution case; its absence supported the Defence.
2. Once that false evidence is removed, the evidence of other witnesses who saw another dinghy at the yacht corroborates the young woman’s sworn admission to having been on the yacht with named males.
3. A Forensic officer misled the court as to the presence of blood in the Four Winds dinghy (and countenanced a highly misleading photograph) when that officer knew that there was no evidence of blood at all. The Prosecutor admitted in 2017 that he was ignorant of these falsities and that he did not understand the basic scientific principles. The Defence had the necessary laboratory reports but failed to understand them. “Blood in the dinghy” supported the prosecution theory that Neill-Fraser disposed of the body in the river using that dinghy. No blood, no support for the body disposal theory.
4. The prosecution alleged that the accused had used the winches and ropes on the yacht to get the body from below so that she could place it into the dinghy. But an expert report explains how the relevant winch could not function as required to substantiate this theory.
5. A red jacket was found on shore. The police failed to “bag and tag” it and then lost it for several days, finding it in a police car park. The jury wasn’t told about those problems. Ms Neill-Fraser’s DNA and that of several other unidentified persons was found on the jacket. At the time of testing in early 2009 the young woman’s DNA was not in the database. There are no public ‘results’ for those unidentified persons’ DNA being tested with advanced DNA technology or checked subsequently against the young woman or those whom she has named. Repeated requests this year that it be checked or any results provided have been refused;
6. A prosecution lawyer who it seems had an active role regarding both the ‘blood in the dinghy’ and in the ‘lack of disclosure’ at trial to the Prosecutor and Defence about the false sighting of the Four Winds dinghy, then played an active role both in resisting Ms Neill-Fraser’s quest to be allowed a fresh appeal and in the prosecution case presented at the recent appeal. This is a clear conflict of interest between their duty as a prosecutor and a personal interest to prevent their seeming shortcomings at trial being revealed; and,
7. There is now evidence that police chose not to properly investigate the incidence of break-ins to yachts, that they failed to check critical mobile phone records, and that they failed to follow up reports about the young woman and her known associates.
All those with responsibility have failed to act.
They first received written advice about some of these shortcomings in August 2019. They resolutely ignored it. Likewise they have shut their eyes to the latest information.
These past few weeks we have all had the benefit of a full expose – the results of years of RTI requests, the seeking of expert advice, and detailed forensic analysis.
Mr President, our courts have been misled. A woman has been incarcerated for twelve years as a consequence.
The second limb of the Attorney-General’s refusal thus far to take action is the claim that it would breach the separation of powers.
Mr President, the Attorney-General is the First Law Officer. She has a duty to protect all Tasmanians and in light of the information that has been so expertly gathered and collated in the Etter/Selby papers, she must use her common law right to go to the court immediately and seek its permission to have this material presented to the court with the opposing arguments, so that the court is properly informed of all the issues that should be before it.
It is my understanding that the Attorney General has been asked to ‘take the case over’ from the DPP, under her Common Law power, and ‘to seek to maintain public confidence in the Courts’ by seeking leave to reopen the appeal. It appears that there are examples of the AG intervening when inclined to do so.
Mr President, in order for this House to be better informed, I request that the Government Leader arrange a briefing as soon as possible from Ms Barbara Etter APM (Australian Police Medal), former senior police officer, inaugural CEO of the Tasmanian Integrity Commission and former solicitor for Sue Neill-Fraser, and former Attorney-General and Premier Lara Giddings, for every member of this place so that we can fully grasp the extent of the wrongs.
Mr President, in closing, I would like each and every Member to consider ‘’What if Sue Neill-Fraser was a member of your family, a friend or a person in your electorate?” I raise this matter here in this place Mr President as this place is here to protect the rights of all Tasmanians to ensure proper process. Mr President, because I believe we must put this right for now and into the future.
ENDS