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Court warns of retrial, possibly at great expense, CLA says

Court warns of retrial, possibly at great expense, CLA says

LATE NEWS: Robert Richter QC of Melbourne has replaced Tom Percy QC of Perth as SNF’s barrister, due to Covid-19.

Despite a great deal of interest in the Sue Neill-Fraser case Australia-wide, the Court of Criminal Appeal in Tasmania has been unable to arrange live-streaming of the appeal, which begins 1 March 2021.

One of the reasons it has given – the possibility of a retrial – should come with a warning sign attached for the taxpayers of Tasmania, CLA believes.


The hearing of the second appeal in the matter of Neill-Fraser v. State of Tasmania is scheduled to commence before the Court of Criminal Appeal on 1 March 2021 in the Supreme Court in Hobart.

The Court has decided not to implement a proposal to video stream the hearing of the appeal…

Whilst acknowledging the public interest in these proceedings, it is plain that video streaming of these proceedings will be problematic and that there are valid concerns in this case which have informed the Court’s decision.

The Court is concerned at the potential of video streaming to prejudice a future trial if the Court was to order a retrial. There are other practical considerations that mean live streaming was not a viable option in this case. – Dated: 23 February 2021

Why isn’t live-streaming available?

CLA says: A decade ago, Tasmania was given the first rollout of the NBN fast-internet network in Australia to enable the state to lead the nation in electronic communications.

Obviously, someone forgot to tell the worthies of the Court of Criminal Appeal and the Supreme Court of Tasmania.

The court system should have had live-streaming available half-a-decade ago, at least, and from other big Tassie cities, not just from Hobart. That live-streaming doesn’t exist indicates that the courts’ thinking could be behind the times.

CLA points out that any possible retrial is not a decision for the Court of Criminal Appeal to make.

Whether a retrial occurs would be a decision for the Director of Public Prosecutions, depending on which of several optional decisions the court makes.

Civil Liberties Australia is unable to comment here for legal reasons on the possibility of a retrial decision. But any such decision would be likely to be subjected to the closest legal scrutiny by some of the best legal minds from throughout Australia, probably all the way to the High Court, before such a trial began.

When the ACT appeal court “ordered” a retrial of convicted murdered David Eastman, who had served more than a decade in jail, and the ACT DPP decided to go ahead with a new trial, Eastman was acquitted.

The Territory was forced to pay $7 million compensation to Eastman, paid for by taxpayers of course. Close observers believe the failed retrial was a significant factor in the total sum of the largest such compensation award ever handed out in Australia,

CLA believes that both courts and DPPs have a responsibility to the State for justice that is fair, timely…and cost-effective as well.

Justice also needs to be accessible, and must be seen to be done.

Unfortunately, very few people will see how legal matters play out in the Sue Neill-Fraser appeal of 2021. It has already been delayed some 18 months by Covid and judicial-legal hold-ups, meaning there was plenty of time to anticipate the need for live-streaming.

Only 18 people can sit in the public gallery of the Hobart courtroom.

There will be a live CCTV link to another courtroom nearby, seating 17. And just 8 journalists will be able to watch – again by CCTV – in a separate media room.


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