By Andrew L. Urban
August 20, 2014, marks 5 years to the day since the arrest of Hobart grandmother Sue Neill Fraser, for the murder of her partner Bob Chappell. She has been in custody ever since, without pre-trial bail allowed; she is now in Hobart’s Risdon Prison. This is nothing to celebrate, since it is not a case of bringing a murderer to justice, but a catastrophic failure of the Tasmanian legal system to produce a fair trial. A failure that is so blatant and shocking hardly anyone who hears of the case can believe it really happened the way it did.
The way it really happened has been denounced by lawyers as respected and informed about the system as Chester Porter QC, no stranger to miscarriages of justice (refer Lindy Chamberlain Royal Commission). Likewise Dr Bob Moles, an authority – and literally an author – on the subject (refer his pivotal role in South Australia introducing new laws to allow further appeals in serious cases where the verdict is in doubt).
You can read a deconstruction of the trial and how the then Director of Public Prosecutions, Mr Tim Ellis manufactured a murder scenario by sheer speculation, without providing any evidence for that speculation – here. Yes, I guess it is hard to believe in 21st Century Australia.
Yet despite the blatant nature of the miscarriage of justice, the Tasmanian legal system has closed ranks and not a single lawyer or judge has expressed concern that perhaps this trial should be independently reviewed by an appeal judge – from the mainland.
Yet that is what is now being proposed in the case of Mr Ellis and his conviction for negligent driving causing death.
That tragic case – the death of Natalie Pearn in March 2013 – illustrates the solidarity of the legal brothers in Tasmania. Magistrate Chris Webster last month (March 2014) found Ellis guilty of causing the death of 27-year-old Natalia Pearn by negligent driving. It had taken a year to bring the case to court as all other Tasmanian magistrates disqualified themselves from hearing it. Ellis was – is – one of theirs.
As the ABC reported on July 15, 2014 Ellis was due to be sentenced in late July but lodged applications with the Supreme Court to have the magistrate’s decision reviewed and his sentencing put off until then. Justice David Porter has ordered an interim stay on sentencing, but disqualified himself from hearing applications for any further orders.
The search is now on for any Tasmanian judge who would be prepared to hear the application for sentencing to be delayed. Justice Porter said it may be necessary to bring in an interstate judge.
The legal fraternity in Tasmania is dancing sideways to steer clear of any part of the Ellis case – clearly demonstrating what a tightly knit, self protective club it is. It is certainly ethical of them to disqualify themselves – but it shows how difficult it is for the Tasmanian legal system to question its own processes.
Not enough that Tim Ellis played a major role in an unfair trial resulting in the loss of liberty for one woman, driving negligently resulting in the loss of life for another woman, his drawn out case (while he remains on full pay) is now allowing him to retain his liberty in a case where the evidence is probative, not circumstantial.
Pity that Tasmania is off the mainland media radar. As retired High Court Judge Michael Kirby has said, cases like this may need the pressure of public opinion and the media to jolt the legal system into corrective action.
NOTE: On August 20, 2014, Neill Fraser’s current legal representative, Barbara Etter APM, will be speaking at the Plenary Session of the Australian Academy of Forensic Sciences, at Sydney’s Union University Club. Etter, a 30 year police veteran and former Assistant Commissioner of Police (in WA) and former Integrity Commissioner (in Tasmania) will outline her first-hand exposure to a miscarriage of justice case in WA where Andrew Mallard spent 12 years in gaol for a murder he did not commit. She will also discuss the Neill Fraser case. She was awarded the Australian Police Medal (APM) in 2008.