Legal columnist HUGH SELBY believes the Tasmanian Office of the Director of Public Prosecutions needs to be remade from top to bottom. He says it needs new leadership that believes in, and acts upon “fair process and fair trials”.
Kill another car driver by driving on their side of a good road in good weather?
That gets a four-month suspended jail sentence (no time in jail) and you lose your job, but go back to being a barrister in Tasmania with, say the leaders of your legal profession, your good character intact.
Be found to have repeatedly behaved unacceptably, egregiously, in your preparation for a much publicised criminal trial in Canberra? For that you have to resign, but you go back to being a barrister with your good character intact.
Have a drink-driving conviction, be said to gamble during office hours, be subject to criticism over the handling of a plea bargain following a shooting. For that you resign, but you too go back to being an Adelaide barrister until you die nearly a decade later.
Our directors of public prosecutions (DPPs) always seem to get another chance.
The last one is interesting because so many people speak well of you, despite your fall from grace. It’s nice to be remembered as, “a fair, well-rounded prosecutor … [who] understood well the duty of a prosecutor is not to simply achieve convictions but to ensure fair process and a fair trial.”
“Fair process and a fair trial”: looking around now that man might have been a saint among heathens.
Do you think that any DPP holding to, and living up to that view, could have countenanced their office media unit feeding information to a Sydney radio shock jock to do over a respected, experienced trial judge?
There are well known, well tried ways to make complaints about how a judge conducts a trial: using a shock jock is not one of them.
Let’s be generous and accept that the DPP didn’t know about it at the time, but heard about it after the radio show. Wouldn’t the decent thing, the right thing to do, be to pull out all stops to apologise, eat humble pie, and apologise again? If you think that, then you are out of touch.
Showing contrition is an essential part of the criminal law process as it affects the sentence given to defendants. But it’s a term that has no application when it comes to DPPs. How odd that showing by example is not part and parcel of being at the apex of criminal prosecution work.
That’s not quite accurate. Putting “contrition” to one side there’s no shortage of leading by example. Some principles might surprise you, but only if you still believe in “a fair process and a fair trial”.
The first principle is: “When caught out, tough it out”. A Tassie prosecutor led evidence from a witness that put the accused at the crime scene. That’s great.
After the trial and unsuccessful appeals, the witness admits that the evidence they gave at trial was wrong. They were looking at another yacht in another place. An ethical prosecutor would take advice on what should be done to correct the wrongful conviction. Didn’t happen. What does happen is cover up.
Here’s another instance. The Tassie prosecution led evidence from a so-called forensic expert. That evidence was compelling and it was necessary for the prosecution case theory.
However, the evidence was scientific nonsense and known to have been so for the previous 25 years. Unfortunately, the defence was inept and neither the rubbish evidence nor the witness was exposed at trial. Some years after that trial the DPP was advised of the problem. The response was to threaten the messenger with “contempt of court” proceedings. The “problem” went away.
The second principle, performed superbly in Tasmania: “Keep the lid on it by any means possible”.
Those means include ensuring that any complaints to “independent” bodies are dismissed without reasons, ensuring that successive attorneys-general never descend to dealing with the substance of incontrovertible evidence of misconduct and incompetence, always attacking the messenger, and ensuring, so far as is possible, that the use of freedom of information (FOI) is fruitless for those seeking information.
It is a lovely irony that it is the Tasmania Police playing of FOI games to not release information that has provided a treasure trove of evidence of their wrong doing.
This has happened because, like liars that do not remember previous lies, the police have failed to check their previous responses when offering new excuses to deny access to information.
Openness, not cover up, is vital for all of us
In 2008 a young man, Farah Jama, was wrongly convicted of rape in Victoria and went to jail.
As highly regarded Victorian Supreme Court judge Frank Vincent was to explain after he conducted an investigation of how it all went so wrong: “The case against him was arrant nonsense. This did not protect him against prosecution, conviction and imprisonment, but it was recognised as such by the assistant crown prosecutor who had responsibility for the conduct of appeal (by Mr Jama) on behalf of the Crown.
“He queried the DNA evidence and learned of the potential for contamination of the sample on which the case rested and acted immediately to address the situation”. (The power of expert evidence: a cautionary tale – ScienceDirect),
That assistant crown prosecutor and his DPP knew what was right. They understood the concepts of fair process and a fair trial. That meant that when they discovered how Mr Jama came to be wrongly accused and convicted they didn’t attempt to conceal it. Instead, they took steps to be open and to redress the wrong done to Mr Jama.
Likewise, the sexual assault facility, once it was made aware that its protocols didn’t prevent contamination of samples, moved to quickly solve that problem.
Mr Jama’s wrongful conviction is a case study for the use of forensic science and upholding the principles that underlie good prosecuting.
How starkly different is the approach of the Tasmanian Office of the Director of Public Prosecutions and the Tasmanian Police.
An incompetent investigation into what may be a murder (but not by Sue Neill-Fraser), might have been an accident, has been followed by a decade of refusal to admit serious factual and scientific error, threats to lawyers and witnesses, intimidation of media, manipulation of media, the deliberate withholding of significant information from both the Supreme Court and Ms Neill-Fraser’s lawyers, and the misuse of FOI processes.
The right result, indeed the only acceptable result, is that the DPP, Daryl Coates SC, should resign. The ODPP in Tasmania needs to be remade from top to bottom. It needs a new DPP who believes in, and acts upon “fair process and fair trials” It also needs to have legislation that brings it up to date.
We learn from history that the current DPP can go back to being a barrister and his mates will line up to attest to his good character.
He’ll be right, especially if his successor turns back the clock and ensures that the Tasmanian ODPP is committed to “a fair process and a fair trial”. If that happens then Tasmanian barristers doing criminal work, be it to prosecute or to defend, will be able to do a good job.
But that’s not likely to happen, unless and until there is a Royal Commission into entrenched Tasmania police and ODPP misconduct. Such is the scale of that misconduct that the biggest reason to avoid an inquiry is how big and rank is the rotten core.
That’s one of the results of endemic corruption: the lies, the deceit, the misconduct build layer upon layer. The size of the problem is a big obstacle to redressing it.
Some readers of this article will wonder why, over several years, I have penned articles on a Tasmanian case that CityNews has published for our local readership.
Let me then explain that we have one system of justice in this country, a system that is based on openness and accountability. That is what “a fair process and a fair trial” require.
Wrongful convictions are inevitable. People make mistakes, from inadvertence, lack of knowledge or ambition. People then cover up those mistakes to protect reputations. The cover up inevitably involves lies and deceit. Meantime innocent people languish in jail.
The Tasmanian case of Sue Neill-Fraser is remarkable for the extent to which for more than a decade key players, powerful people, have gone to maintain the conviction, despite the quality and quantity of evidence as to the wrong person being charged, convicted and imprisoned.
Intimidation and manipulation of information and people in Tasmania has been extensive and unchecked: articles taken down from media websites following threats of defamation by senior barristers misusing their position to remove fair comment, bullying threats of contempt of court proceedings, ABC radio cancellation of a pre-arranged interview, error-ridden media releases, failure of attorneys-general to even acknowledge correspondence or material tabled in the parliament, courts and judges misled, a parole condition that Ms Neill-Fraser cannot comment on her conviction – these are a few examples of how the game is played in the Apple Isle
The proposed new stadium in Hobart is to seat 23,000 for AFL, 31,500 for concerts. There is a petition for a wide ranging public inquiry into the morass which is the wrongful conviction of Sue Neill-Fraser. You can find it here: Petition · Sue Neill-Fraser innocent, 13+yrs in TAS jail. WRONG! Needs INDEPENDENT Judicial Inquiry.
The cost of that inquiry will be peanuts compared to the stadium, but it will inform, it will educate, the exposé will enthral, and it will make for a better Tasmania.
Your support, when added to the 40,000 who have signed, will help to maintain the kind of justice that you would expect if you, a family member, a friend or colleague, ever become either a victim or an accused anywhere in Australia. So sign up and get others to join in now.
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