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Upper House MP calls for independent inquiry into SNF case

Upper House MP calls for independent inquiry into SNF case

Momentum continues to build for a full-on Commission of Inquiry into the wrongful conviction of Sue Neill-Fraser (photo) for murdering her husband, Bob Chappell, on a yacht in Hobart, on Australia Day 2009. Tassie Upper House MP Mike Gaffney in August 2023 again called for Attorney-General Elise Archer to appoint an interstate judge to head an inquiry. SNF has served 13 years in jail, and is on parole wearing an e-bracelet for the next nine, unless justice is achieved. Here’s the Gaffney address to Parliament

Extract – Adjournment Debate – Tuesday 22 August 2023

Sue Neill-Fraser Case – Call for Commission of Inquiry

[4.53 p.m.]

Mr GAFFNEY (Mersey) – Mr President, this is my third adjournment contribution regarding Sue Neill‑Fraser in my 15 years of representing Tasmanians in this place. I take the role of the adjournment speech contributions seriously and I see the Sue Neill‑Fraser issue as an exceptionally important one.

My two previous speeches on 31 August 2021 and 15 November 2022 both dealt with the Sue Neill‑Fraser murder conviction. I took the opportunity to table the detailed Etter/Selby papers and to outline the concerns of Mr Tony Jacobs, a senior prosecutor for many years in the office of the DPP, about non‑disclosure issues and the competence of trial counsel.

I sought the intervention of the Attorney‑General in this matter, given fresh evidence and apparent instances of material non‑disclosure. I also called for a commission of inquiry.

The Etter/Selby papers were sent to the Attorney‑General in August 2021 with a request for her to use her common law powers as the First Law Officer of the State, to seek to have the then appeal reopened.

The appeal had been heard on 1 March 2021 with the decision not yet handed down. The Attorney‑General chose not to intervene.

Indeed, to date, there has been no apparent investigation and no substantive response by the Attorney‑General to the many concerning issues raised in the papers, including:

  • non‑disclosure;
  • a possible misleading of the court by the DPP in the March 2021 appeal;
  • a conflict of interest within the Office of the DPP;
  • an inadequate police investigation; and
  • forensic failures concerning the red jacket and luminol testing.

On 17 October 2022, Robert Richter KC and David Edwardson KC also called on the Attorney-General to establish a commission of inquiry into the Sue Neill-Fraser and Jeff Thompson surveillance device debacle.

On 23 December 2022, the Attorney-General once again declined to act, citing Tasmania’s and Australia’s highest courts had each now considered the case in great detail and that it was vitally important that the courts’ decision be respected.

I note that the Neill-Fraser case has not been heard by the High Court. On two occasions, leave to appeal has been declined.

Despite this stated position that intervention is not possible in the Neill-Fraser case, the Attorney-General earlier this year saw fit to intervene in the Jari Wise coronial matter, directly overturning a decision of the Supreme Court of Tasmania.

This reveals that not only is it available for the Attorney-General to act in the Neill-Fraser case, she has demonstrated a willingness to exercise her powers under law and intervene in other matters.

I believe the Attorney-General should look at the Neill-Fraser situation afresh, particularly in light of evidence that has emerged in more recent times. We know from the Chamberlain, Eastman and Folbigg cases that appeals can be ineffective in identifying serious flaws in the courts’ consideration of issues and bringing to light miscarriages of justice. Appeals are constrained by legislative considerations and common law precedents.

In recent times, we have witnessed the significant and disturbing findings of the Sofronoff inquiries, one in Queensland on DNA testing and the second in the ACT on the Higgins/Lehrmann alleged rape matter. The ACT inquiry exposed multiple instances of alleged misconduct by the then ACT DPP, Shane Drumgold, including examples of misleading the court and material non-disclosure.

Non-disclosure is an area of particular concern in the Sue Neill-Fraser case, with a litany of examples of evidence that appears to not have been appropriately disclosed to the defence team. The current list of nondisclosures in Sue’s case include:

(1) Police disclosure folder 13, including the Youth Justice Action Report and Complaint [relating to Meaghan Vass].

(2) Information concerning the associations of Meaghan Vass who were known to steal from boats, as publicly stated by former Inspector Peter Powell on film in June 2012.

(3) The updated 21-page police offence report of 2009.

(4) The handwritten contemporaneous notes of the conversation with Mr Peter Lorraine on 27 January 2009, regarding the sighting of a dinghy, yacht and man at the critical time of 5 p.m. on Australia Day 2009, which were not disclosed until August 2018.

(5) Failure to disclose important information held by the police about Phillip Triffett.

(6) The failure to advise of the loss of the red jacket.

(7) The document relating to the search of premises at Gepp Parade, Derwent Park, in February 2009 and which appears, given additional information in the form of a sworn affidavit, that the search involved a search for a fire extinguisher – an item that formed an important part of the Crown body disposal theory.

(8) The DNA forensic testing results for the small blue towel which was missing from the major forensic biology report of 1 July 2009 (without any explanation). The Crown failed to disclose testing/examination results on this potentially important exhibit from 2009, 2019 and 2021.

I know that, like me, many colleagues here have been copied into correspondence sent to the Attorney-General, raising concerns and calling for an inquiry into the Neill-Fraser case. Often inquiries are needed to shine a light on hidden and entrenched issues that may have resulted in a miscarriage of justice.

One issue that recently caught my attention from letters to the Attorney-General was the issue of Barbara Zochling and events at the 2010 trial. On the morning of Australia, 2009, Barbara Zochling saw a woman arguing with Bob Chappell. She had assumed it was Neill‑Fraser and was called as a prosecution witness. Only when she saw the photo of Sue in the Mercury paper did she realise she was mistaken about identity. That woman was someone else. On legal advice, she wrote to the DPP, Mr Ellis, telling him she was mistaken about the identity of the woman arguing with Bob. On not hearing back from the DPP, she assumed reasonably that she need not appear as her evidence would be incorrect.

Judge Blow subsequently had Barbara Zochling arrested for disobeying a court order. When she was in court, Zochling stated the woman she had seen was Ann Sanchez, Bob’s sister, and not Sue Neill-Fraser. However, the jury was not informed of the mistaken identity and left with the incorrect belief that Sue and Bob were on bad terms, and even arguing. This might seem minor, but the case against Sue was entirely built on circumstantial evidence and speculation.

This incorrect inference of an argument between Sue and Bob, which was allowed to remain uncorrected with the jury, is a clear example of the questions to be investigated in a much-needed inquiry. There was no body, there was no weapon, no clear motive, no witnesses and no forensic evidence against Sue. In addition, and of great concern, is the fact that recent RTI requests have revealed potentially critical DNA testing was not provided to Sue’s legal team at any stage.

Whilst there have been issues with the evidence of Ms Vass, she has stated on numerous occasions that she was on the yacht and that she vomited on the deck. Her DNA sample was found in a large luminol positive area the size of a dinner plate. A blue towel was seized not far from this location. It was visibly stained and tested in the Forensic Science Service Tasmania (FSST) DNA laboratory in February 2009 with a positive result.

Tasmania Police are refusing to release the 2009 and 2021 testing results for the blue towel under RTI. This prompts concerning questions about the independence, impartiality and integrity of our forensic body.

Just this past week, there was the 14-year anniversary rally for Sue on the parliament lawns, with a persuasive call to action from the member for Nelson. Tomorrow night, former attorney-general and premier, the honourable Lara Giddings, will launch Andrew Urban’s second book on the Neill-Fraser case.

There have been so many resounding, yet unheeded, calls for scrutiny of this case. I add my voice once again, and call for the Attorney-General to urgently establish an independent commission of inquiry into the Sue Neill-Fraser conviction and related matters to be conducted by a retired and respected interstate judge with no ties to Tasmania. Such an inquiry is essential to ongoing confidence and trust in our forensic science services, our police and the broader criminal justice system.

Motion agreed to.

The Council adjourned at 5.02 p.m.

Corrections to the Hansard account: Gaffney M., MLC

Mr GAFFNEY (Mersey) – Mr President, I would like to voice two corrections to the adjournment speech I made on Tuesday August 22.

Because of the seriousness of the Sue Neill-Fraser case, I believe members of the public deserve to receive an updated accurate account of the circumstances.

As we know, minor draft changes can be made by the current Hansard process, prior to publication.  However, because the transcript was already in the public domain, I take this opportunity to correct the record.

Firstly, in my speech dot point 8, regarding the missing forensic testing results of the blue towel, I stated:

Originally the Crown failed to disclose testing and examination results on this potentially important exhibit from 2009, 2019 and 2021. 

Mr President, the failure to disclose occurred in 2009 and 2021, not 2019.

The second correction, in my speech I referred to details in letters forwarded to the AttorneyGeneral and also to members of parliament which raised the Barbara Zochling issue. In relation to Barbara Zochling, sadly now deceased, the jury was made aware that Zochling did not believe that the woman she saw was Sue NeillFraser but it was only when Ms Zochling spoke to someone outside the courtroom that she identified the person as Bob’s sister, Anne Sanchez. It became apparent that Zochling had seen Bob and Anne arguing; it was actually on 25 January 2009 and not on Australia Day as I mentioned in my adjournment speech.  However, this information was never put before the jury. 

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