[2022] TASSC 11
COURT: SUPREME COURT OF TASMANIA
CITATION: Etter v Legal Profession Board of Tasmania [2022] TASSC 11
PARTIES: ETTER, Barbara Anne
v
LEGAL PROFESSION BOARD OF TASMANIA
ETTER, Barbara Anne
v
LEGAL PROFESSION BOARD OF TASMANIALEGAL PROFESSION BOARD OF TASMANIA
v
ETTER, Barbara Anne
FILE NOS: 3212/2017, 1302/2018, 1732/2019
DELIVERED ON: 1 March 2022
DELIVERED AT: Hobart
HEARING DATES: 11, 15, 16, 17, 18 November, 10 December 2021
JUDGMENT OF: Martin AJ
CATCHWORDS:
Professions and Trades – Lawyers – Complaints and discipline – Disciplinary proceedings – Tasmania.
Aust Dig Profession and Trades [1274]
Professions and Trades – Lawyers – Complaints and discipline – Professional misconduct and unsatisfactory professional conduct – Generally – Relevant lack of competence – Whether conduct below ideal standards of practice is always misconduct – Degree of tolerance for conduct below the ideal standard – Not the result of adding up minor flaws.
Law Society of Tasmania v Turner [2001] TASSC 129, 11 Tas R 1, followed.
Legal Profession Act 2007 (Tas), s 421.
Aust Dig Profession and Trades [1238]
Professions and Trades – Lawyers – Complaints and discipline – Professional misconduct and unsatisfactory professional conduct – Other matters – Abuse of disciplinary process – Justifications and factual basis for making complaints against legal practitioners – Legal practitioner making complaint to Legal Profession Board against another practitioner without a reasonable basis and for an improper purpose.
Legal Profession Act 2007 (Tas), s 421.
Aust Dig Profession and Trades [1250]
Magistrates – Coroners – Inquests and inquiries – Proceedings at inquest or inquiry – Other matters.
Aust Dig Magistrates [1380]
Magistrates – Coroners – Inquests and inquiries – Other matters – Legal practitioner improperly attempting to influence coroner – Threatening Supreme Court application – Use of media to apply public pressure.
Aust Dig Magistrates [1381]
REPRESENTATION:
Counsel:
Appellant: H Selby
Respondent: C Gunson SC, J Sawyer
Solicitors:
Respondent: Tremayne Fay Rheinberger
Judgment Number: [2022] TASSC 11
Number of paragraphs: 432
Serial No 11/2022
File Nos 1302/2018 3212/2017
1732/2019
BARBARA ANNE ETTER v LEGAL PROFESSION BOARD OF TASMANIA
BARBARA ANNE ETTER v LEGAL PROFESSION BOARD OF TASMANIA
LEGAL PROFESSION BOARD OF TASMANIA v BARBARA ANNE ETTER
REASONS FOR JUDGMENT MARTIN AJ
1 March 2022
Introduction
The Legal Profession Board of Tasmania (the Board) is established under the Legal Profession Act 2007 (the Act). The functions of the Board are set out in s 591 of the Act and include receiving, investigating and determining complaints made under the Act and, as necessary, referring complaints to the Disciplinary Tribunal or the Supreme Court for hearing or determination.
The Board has made three applications for declarations that Ms Barbara Anne Etter has been guilty of professional misconduct or unsatisfactory professional conduct (misconduct). A vast quantity of written material was presented by the Board. Oral evidence was given in November 2021. Written submissions were followed by oral submissions on 10 December 2021. In response to issues raised by me during oral submissions, further written submissions were provided on 22 and 27 December 2021.
As a preliminary point, counsel for Ms Etter submitted that to the extent that part of the proceedings are dependent upon the validity of a delegation of power to Mr Frank Ederle, the Executive Officer of the Board, the proceedings are of no effect because the delegation was invalid. The submission was without substance and was subsequently withdrawn.
Mr Ederle has sworn a number of affidavits in these proceedings in which he describes himself as the Chief Executive Officer of the Board. Section 596 of the Act provides that the Board is to appoint a suitably qualified person as the "Executive Officer of the Board". Counsel contended there is no statutory authority for the appointment of a "Chief Executive Officer" and, therefore, a delegation of powers to Mr Ederle by the Board pursuant to s 593 of the Act is invalid.
Section 592 provides that the Board possesses the power to "do all things necessary or convenient to be done in connection with the performance of its functions". In addition to appointing an Executive Officer, pursuant to s 596 the Board may appoint "such other persons as it considers necessary". Plainly it is within the power of the Board to appoint an Executive Officer, and to describe the Executive Officer as the "Chief Executive Officer" of the Board. Further, the power of delegation under s 593 is not limited to delegation to the "Executive Officer". It is a broad power to "delegate" any of its functions or powers and it does not restrict the persons to whom power may be delegated. Finally, Mr Ederle gave oral evidence that although he was appointed as Executive Officer, the Board's secretary subsequently assigned to him the title of Chief Executive Officer.
Ms Etter was admitted to practice law in New South Wales on 13 February 1987. She was granted a principal practising certificate by The Law Society of Tasmania (the Society) on 21 July 2012, and held a practising certificate authorising her to engage in legal practice until the Society suspended her certificate on 31 October 2017. However, pursuant to an order of the Full Court of the Supreme Court of Tasmania, on 20 March 2018 the Society stayed that suspension. Notwithstanding the stay, Ms Etter has not held a practising certificate since 1 July 2018.
On 20 August 2009 Ms Susan Neill-Fraser was charged with the murder of her partner, Mr Robert Chappell, who had gone missing from his yacht on about 26 or 27 January 2009. The trial of Ms Neill-Fraser for the crime of murder took place between 21 September and 15 October 2010 and resulted in a jury verdict of guilty.
Ms Neill-Fraser appealed against her conviction and the appeal was heard on 11 August 2011. The Court of Criminal Appeal dismissed the appeal against conviction on 6 March 2012, but allowed an appeal against sentence, and the sentence was reduced to imprisonment for 23 years, with a non-parole period of 13 years. On 7 September 2012 an application for special leave to appeal to the High Court was heard and dismissed.
In 2012, initially as a consultant but later as a solicitor, Ms Etter commenced acting for Ms Neill-Fraser in connection with the conviction for murder. In evidence Ms Etter explained that she was keenly interested in forensic science cases involving miscarriages of justice, and in coronial practices.
Ms Etter became involved in a public campaign seeking that Ms Neill-Fraser's conviction be set aside. In the course of that campaign Ms Etter made a number of public statements which were subsequently the subject of a formal complaint to the Board by Mr Daryl Coates SC, who was then the Acting Director of Public Prosecutions. The complaint by Mr Coates was made by letter of 29 August 2014, and the conduct about which Mr Coates complained provides the basis of an application by the Board for a declaration that the applicant is guilty of professional misconduct (3212 of 2017 – Coates complaint).
By letter of 8 September 2017 to the Board, Ms Etter made a formal complaint about the conduct of Mr Coates in writing his letter of complaint dated 29 August 2014. In addition, on 25 September 2017 Ms Etter wrote to the Board making a formal complaint about the conduct of the former Director of Public Prosecutions, Mr Timothy Ellis SC, in respect of public statements made by Mr Ellis in connection with the evidence led at the trial of Ms Neill-Fraser.
The Board dismissed Ms Etter's complaints against Mr Coates and Mr Ellis. In respect of those complaints, however, in May 2018 the Board issued proceedings (1302 of 2018), referred to as the "Own motion complaint", seeking declarations that Ms Etter was guilty of misconduct in making serious allegations against Mr Coates and Mr Ellis without proper foundation, and without evidentiary material to support the allegations.
In October 2017, Ms Etter made complaints to the Board about the conduct of legal practitioners, Ms Kate Cuthbertson and Ms Emily Warner, in relation to a separate matter with no connection to Ms Neill-Fraser. Mr Robert Greer had complained to the Board about the conduct of Ms Etter (the Greer complaint) in connection with a coronial inquiry into the death of Mr Greer's mother, Mrs Rita Sally Greer. Ms Cuthbertson and Ms Warner were retained by the Board in connection with the investigation of the Greer complaint, and Ms Etter's complaint against them arose out of their conduct on behalf of the Board.
The Board dismissed Ms Etter's complaints against Ms Cuthbertson and Ms Warner. However, the Board's Own motion complaint, issued in respect of Ms Etter's complaints against Mr Coates and Mr Ellis, also encompasses Ms Etter's complaints against Ms Cuthbertson and Ms Warner. As with the complaints by Ms Etter against Mr Coates and Mr Ellis, the Board alleges that in making the complaints against Ms Cuthbertson and Ms Warner, Ms Etter was guilty of misconduct.
In respect of the Greer complaint, in August 2019 the Board issued proceedings against Ms Etter (1732 of 2019) seeking a declaration that her conduct in connection with the coronial inquiry was, in a number of ways, of such a standard that it amounted to misconduct.
The Coates complaint, the Own motion complaint (arising out of Ms Etter's complaints against Mr Coates, Mr Ellis, Ms Cuthbertson and Ms Warner) and the Greer complaint, were all the subject of an order that they be heard and determined by the Supreme Court. For the reasons that follow, I dismiss the Board's application based on the Coates complaint (3212 of 2017), but find that in making the complaints against Mr Coates, Mr Ellis, Ms Cuthbertson and Ms Warner, Ms Etter was guilty of professional misconduct.
As to the Greer complaint, I find that in only one respect has the Board made out its case. That issue concerns an improper attempt to influence a decision of the coroner.
Principles
The Supreme Court possesses inherent jurisdiction with respect to the control and discipline of legal practitioners, and that jurisdiction is expressly preserved by s 510 of the Act. Orders were made pursuant to s 486 that the applications by the Board be heard and determined by the Supreme Court, and s 487 provides that in deciding these applications, the Court may make any order "it thinks appropriate".
The Board set out to establish that in a number of respects across all applications, Ms Etter's conduct amounted to unsatisfactory professional conduct and/or professional misconduct. Those expressions are defined in ss 420 and 421 of the Act:
"420 Unsatisfactory professional conduct
For the purposes of this Act –
unsatisfactory professional conduct includes conduct of an Australian legal practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.
421 Professional misconduct
(1) For the purposes of this Act –
professional misconduct includes –
(a) unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and
(b) conduct of an Australian legal practitioner whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.
(2) For finding that an Australian legal practitioner is not a fit and proper person to engage in legal practice as mentioned in subsection (1), regard may be had to the suitability matters that would be considered if the practitioner were an applicant for admission to the legal profession under this Act or for the grant or renewal of a local practising certificate."
The "suitability matters" to which s 421(2) refers are defined in s 9(1) of the Act, par (m) of which provides: "persons currently unable to satisfactorily carry out the inherent requirements of practice as an Australian legal practitioner".
Without limiting the operation of ss 420 and 421, s 422 provides examples of conduct capable of constituting unsatisfactory professional conduct or professional misconduct:
"422 Conduct capable of constituting unsatisfactory professional conduct or professional misconduct
(1) Without limiting section 420 or 421, the following conduct is capable of constituting unsatisfactory professional conduct or professional misconduct:
(a) conduct consisting of a contravention of this Act, the regulations or the legal profession rules;
(b) charging of excessive legal costs in connection with the practice of law;
(c) conduct in respect of which there is a conviction for –
(i)a serious offence; or
(ii)a tax offence; or
(iii)an offence involving dishonesty;
(d) conduct of an Australian legal practitioner as or in becoming an insolvent under administration;
(e) conduct of an Australian legal practitioner in becoming disqualified from managing or being involved in the management of any corporation under the Corporations Act 2001 of the Commonwealth;
(f) conduct consisting of a failure to comply with the requirements of a notice under this Act or the regulations (other than an information notice);
(g) conduct of an Australian legal practitioner in failing to comply with an order of the Tribunal made under this Act or an order of a corresponding disciplinary body made under a corresponding law (including but not limited to a failure to pay wholly or partly a fine imposed under this Act or a corresponding law);
(h) conduct of an Australian legal practitioner in failing to comply with a compensation order made under this Act or a corresponding law.
(2) Conduct of a person consisting of a contravention referred to in subsection (1)(a) is capable of constituting unsatisfactory professional conduct or professional misconduct whether or not the person is convicted of an offence in relation to the contravention."
It is apparent from the definitions that professional misconduct is more serious than unsatisfactory professional conduct. The latter involves, as a minimum, conduct falling short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent legal practitioner. Professional misconduct requires proof of:
(a)unsatisfactory professional conduct involving a "substantial or consistent failure" to reach or maintain a "reasonable standard of competence and diligence";
and
(b)conduct that would "justify" a finding that the practitioner "is not a fit and proper person to engage in legal practice".
The statutory provisions do not exclude the operation of the common law. Crawford J (as he then was) summarised the position in Law Society of Tasmania v Turner [2001] TASSC 129, 11 Tas R 1 at [43]:
"[43] Under the Act [Legal Profession Act 1993], s56, the expressions 'professional misconduct' and 'unprofessional conduct' are defined. But the definitions are inclusive, not exclusive. ...
[44] Apart from the statute's inclusionary meanings, professional misconduct consists in behaviour on the part of a legal practitioner which would reasonably be regarded as disgraceful or dishonourable by legal practitioners of good repute and competency. In re a Solicitor [1912] 1 KB 302 at 311, 312; Grahame v Attorney-General of Fiji [1936] 2 All ER 992 at 1002; Myers v Elman [1940] AC 282 at 288, 289; Re Thom; ex parte the Prothonotary (1962) 80 WN (NSW) 968 at 969; Re Veron; ex parte Law Society of New South Wales (1966) 84 WN (Pt1) (NSW) 136 at 143; In re Three Solicitors [1949] VicLawRp 13; [1949] VLR 72 at 73; Re a Solicitor [1960] VicRp 96; [1960] VR 617 at 620. That definition or test has been accepted in unreported decisions of this Court which concerned complaints made under the Legal Practitioners Act 1959. See, for example, In re a Legal Practitioner 105/1982 at 9; Law Society of Tasmania v Walker 56/1988, per Cox J at 22. It is derived from a case which concerned a member of the medical profession. Allinson v General Medical Council [1894] 1 QB 750. It is not an exhaustive definition. See Prothonotary of the Supreme Court of New South Wales v Costello [1984] 3 NSWLR 201 at 207. Counsel for the Society accepted that to be so, adding that it is his essential submission that professional misconduct is, simply speaking, grave conduct which in the Court's judgment would warrant reprobation and condemnation from reasonable legal practitioners of good repute and competency. I think there is some danger involved in searching for words to further define the term and I will not do so.
...
[48] In Re R, A Practitioner of the Supreme Court [1927] SASR 58 at 60, 61, the Supreme Court, in banco, regarded the expression 'unprofessional conduct' as wider than 'professional misconduct'. The court said that whereas 'professional misconduct' when undefined by statute, referred to anything done by a practitioner, in the pursuit of his or her profession, that would reasonably be regarded as disgraceful or dishonourable by his professional brethren of good repute and competency, 'unprofessional conduct' was not necessarily limited to conduct which was 'disgraceful or dishonourable', in the ordinary sense of those terms. It included, in the court's view, conduct which might reasonably be held to violate, or to fall short of, to a substantial degree, the standard of professional conduct observed or approved of by members of the profession of good repute and competency. That view was approved by the Western Australian Full Court in Fordham v Legal Practitioners' Complaints Committee (1997) 18 WAR 467.
[49] In A & B, Legal Practitioners v Disciplinary Tribunal [2001] TASSC 55, Underwood J at par42 expressed the view that the definition of unprofessional conduct in s56 is virtually on all fours with what he referred to as the common law meaning as propounded in those two cases. With respect, I do not agree. By providing that 'unprofessional conduct' includes what is set out in pars(a) and (b), Parliament should be taken to have enlarged the ordinary meaning as articulated in the South Australian and Western Australian cases, to include what is stated in those paragraphs. It follows that in this State, unprofessional conduct extends to conduct which might reasonably be held to violate, or to fall short of, to a substantial degree, the standard of professional conduct observed or approved of by members of the profession who are of good repute and competency (the so called common law test); professional conduct that falls short of a standard of conduct that a member of the public is entitled to expect of a practitioner of good repute and competency (par(a) of the definition in s56); and conduct which results in any serious neglect or undue delay, or in the charging of excessive fees or costs, or in consistent or substantial failure to reach reasonable standards of competence and diligence, but of a lesser degree of seriousness than conduct of that nature which would amount to professional misconduct (par(b) of the definition in s56).
[50] In a general sense, professional misconduct should be regarded in this State as a more grave form of misconduct than unprofessional conduct. There may well be an overlap and the same conduct might in some cases amount to both of those things. However, the view expressed by Nettlefold J in the Full Court in Law Society of Tasmania v Walker 56/1988 at 7, that 'unprofessional conduct' should not be regarded as a less heinous category of conduct, is no longer a generally correct view, having regard to what is contained in par(b) of the definition of unprofessional conduct in s56. The Full Court was of course concerned with a disciplinary complaint under the previous legislation, the Legal Practitioners Act 1959, which did not contain the terms 'professional misconduct' and 'unprofessional conduct', let alone define them. The view I have expressed accords with what was said by the Attorney-General in his second reading speech concerning the Legal Profession Bill in the House of Assembly on 12 May 1993 when he referred to 'the less serious 'unprofessional conduct' complaints' and to 'the more serious complaints involving "professional misconduct"'."
Crawford J was concerned with the statutory definitions of "professional misconduct" and "unprofessional conduct" in the Legal Profession Act 1993. However, his observations have been applied in cases under the 2007 Act. In Legal Profession Board of Tasmania v Haque [2015] TASSC 5, 23 Tas R 434 at [30], Blow CJ cited the remarks of Crawford J at [44] in Law Society of Tasmania v Turner to which I have referred. Similarly, in Legal Profession Board of Tasmania v Hall [2015] TASSC 63, 24 Tas R 110 at [13], Estcourt J cited the same passage.
In Legal Profession Board of Tasmania v Kitto [2019] TASSC 39, 31 Tas R 91 at [12], Blow CJ again referred to the decision of Crawford J in Law Society of Tasmania v Turner and, in particular, to the observation by Crawford J that apart from the categories of professional misconduct identified in the definition, professional misconduct also includes "behaviour on the part of a legal practitioner which would reasonably be regarded as disgraceful or dishonourable by legal practitioners of good repute and competence".
In addition, Blow CJ cited the remarks of Crawford J to the effect that professional misconduct should be regarded as "a more grave form of misconduct than unprofessional conduct".
The burden of proving the facts of Ms Etter's conduct, and that such conduct amounted to unsatisfactory professional conduct and/or professional misconduct, rests on the Board. The standard of proof is the civil standard of proof on the balance of probabilities as explained in Briginshaw v Briginshaw (1938) 60 CLR 366. In civil litigation, even if the matter to be proved involves criminal conduct, the onus remains proof on the balance of probabilities. However, as the majority judgment explained in Neat Holdings Pty Ltd v Carajan Holdings Pty Ltd (1992) 67 ALJR 170 at [2], "the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what is sought to prove".
The Board submitted that although individual or isolated conduct of Ms Etter may not amount to misconduct, "when the totality of her conduct is considered over the period of time that is the subject of the complaints, the Court might nevertheless conclude that she is guilty of professional misconduct". The written submissions contend that it is necessary for the Court to consider "the entirety of the practitioner's conduct rather than assessing each aspect or particular in isolation".
In support of this position, the Board referred to the judgment of Crawford CJ, with whose judgment Slicer J and Evans J agreed, in Scott v Law Society of Tasmania [2009] TASSC 12. The Court was concerned with a practitioner who had been found by the trial judge to have "misconducted herself on a great number of occasions with respect to the affairs of many clients over a period of about six months in 2004[5]". Some of the conduct was found to amount to professional misconduct, and other aspects to amount to unprofessional conduct rather than professional misconduct. As to the latter, Crawford CJ regarded the finding as questionable "when all of the conduct over the six month period" was considered. In other words, Crawford CJ would have had regard to the entirety of the practitioner's conduct. In reaching the conclusion that the appeal should be dismissed, Crawford CJ made the following observations:
"[67] No attack has been made on the findings of professional misconduct and unprofessional conduct that were made after the first hearing. When regard is also had to her other acts of professional misconduct, this was a clear case for striking her name from the roll of practitioners. I am referring of course to the deliberate misleading of the court by withholding from Mr Barns, for disclosure to the learned judge, the fact that the NT society had resolved to admonish her, and her deliberate attempt to mislead the learned judge when she gave evidence that at the time she instructed Mr Barns she had forgotten about the NT complaint."
Crawford CJ then referred to the test enunciated by Lopes LJ in Re Weare; In re the Solicitors Act, 1888 [1893] 2 QB 439 at 448:
"To my mind the question which the Court in cases like this ought always to put to itself is this, is the Court, having regard to the circumstances brought before it, any longer justified in holding out the solicitor in question as a fit and proper person to be entrusted with the important duties and grave responsibilities which belong to a solicitor?"
Principles – duties – hopeless case/allegations
It is unnecessary to discuss in detail the duties owed by legal practitioners to the court and clients.[1] A number of broad principles were identified by Vaughan J in Avwest Aircraft Pty Ltd v Clayton Utz (a Firm) [No 2] [2019] WASC 306 at [374]-[378]:
[1] In Re B [1981] 2 NSWLR 372 at 381, Moffitt P spoke of a barrister's duty being owed to the "public".
"374 A duty of care arises where a solicitor is instructed by a client, for reward, to act in connection with a proposed commercial transaction. The solicitor owes a duty to the client in both contract and tort. However, as CU sought to emphasise, the scope of the duty is variable. For that reason it is often unhelpful to try to describe the duty in the abstract. Moreover, as Gordon J emphasised in Badenach v Calvert, the scope and content of the duty of care is not determined retrospectively, ie by asking what could have been done to prevent the loss or damage.
375 Having offered that caution, a number of relevant principles appear in the authorities:
·The duty of the solicitor depends on the particular retainer and upon the particular circumstances of the individual case.
·The duty is to exercise reasonable care and skill in the provision of professional advice. Ordinarily the standard of care and skill is that reasonably expected of legal practitioners. Where, however, the solicitor professes to have a special skill in a particular area of the law, the standard of care required is that of the ordinary skilled person exercising and professing to have that special skill.
·Often, by way of shorthand, it will be appropriate to characterise the duty as one to exercise the skill, care and diligence expected of a 'reasonably competent solicitor'. (That might, in a particular case, have to be adjusted so that the standard is appropriate to a member of the profession with the relevant specialist skills.)
·Where advice is sought as to whether a transaction can be implemented in a particular way there is a duty to warn a client of any material risk. A risk is material if a reasonable person in the client's position would be likely to give significance to it or if the solicitor is aware (or should reasonably be aware) that the particular client, if warned of the risk, would be likely to give significance to it.
·The scope of the duty may vary depending on the characteristics of the client. An inexperienced client may need explanation and advice before entry into a commercial transaction that would be pointless ‑ or perhaps an impertinence ‑ for an experienced businessperson.
·A solicitor is not normally required to warn an experienced business client of the possibility that an opinion, although firmly held, may not prevail.
·There is no implied undertaking that advice is correct. The duty is to apply the relevant degree of skill and exercise reasonable care in carrying out the advice. Accordingly, the only implied undertaking is that the requisite degree of skill and care had been exercised in the giving of the advice.
·A solicitor will have to exercise judgment as to the manner in which he or she deals with the various aspects which could possibly arise for consideration. There is a point beyond which lawyers cannot be expected to go unless they are specifically asked to examine the possibilities.
·The scope of the duty of care and the nature of the standard of care will depend on the urgency of the situation.
…
378 In every case the nature of the legal services to be provided, and the scope of the related duty of care, will depend on the circumstances in which the solicitor's services are sought. The chief consideration will be what the solicitor is asked to do, ie the instructions given to the solicitor. Also important will be the nature of the transaction. But in a given case other considerations will be relevant, eg the urgency of the situation and the standing, experience and sophistication of the client." [Footnotes omitted.]
Although fundamental principles apply in all circumstances, their application will vary according to the particular circumstances of the practitioner's retainer, including the jurisdiction in which the practitioner is operating. In respect of the Greer complaint, Ms Etter was involved in the coronial jurisdiction which is an inquisitorial process of investigation in which the coroner is not bound by the rules of evidence. The nature of the jurisdiction was helpfully discussed by the Full Court in Attorney-General v Copper Mines of Tasmania Pty Ltd [2019] TASFC 4 at [20]-[22]:
"20 The jurisdiction of the coroner is conferred and regulated by the Coroners Act 1995 'the Act'). The provisions in that Act that are relevant to this case can be summarised as follows:
·In s 3, 'inquest' is defined to mean 'a public inquiry that is held by a coroner in respect of a death, fire or explosion'.
·Amongst other things, a coroner investigating a death must find, if possible, how death occurred, and the cause of death: s 28(1)(b) and (c).
·'A coroner must, whenever appropriate, make recommendations with respect to ways of preventing further deaths and on any other matter that the coroner considers appropriate': s 28(2).
·'A coroner may comment on any matter connected with the death': s 28(3).
·'A coroner holding an inquest is not bound by the rules of evidence and may be informed and conduct an inquest in any manner the coroner reasonably thinks fit': s 51.
·A person whom the coroner considers to have a sufficient interest may make submissions to the coroner at any stage of an investigation: s 52(2).
·A person whom the coroner considers to have a sufficient interest may appear or be represented by an Australian legal practitioner at an inquest, call and examine or cross-examine witnesses, and make submissions: s 52(4).
·'A coroner must not include in a finding or comment any statement that a person is or may be guilty of an offence': s 28(4).
·'A statement or disclosure made by any witness in the course of giving evidence before a coroner at an inquest is not admissible in evidence against that witness in any civil or criminal proceeding in any court other than a prosecution for perjury in the giving of that evidence': s 54.
·The Chief Magistrate may reopen an investigation and re-examine some or all of its findings, or direct another coroner to do so, if she is satisfied, amongst other things, that 'the investigation was not sufficiently thorough or was compromised by evidentiary or procedural irregularity'; or that 'the findings were not supported by the evidence'; or that 'there is another compelling reason to reopen the investigation': s 58(1)(b), (e) and (f). That power may be exercised on the application of a person whom the Chief Magistrate considers has a sufficient interest in the findings of the investigation: s 58(2)(b).
·'Any person may apply to the Supreme Court for an order that all or any of the findings of an inquest are void': s 58A(1). Such an order may be made if the court is satisfied, amongst other things, that 'the inquest was not sufficiently thorough or was compromised by evidentiary or procedural irregularity'; or that 'the findings were not supported by the evidence'; or that 'there is another compelling reason to reopen the inquest': s 58A(3)(b), (e) and (f). If such an order is made, there must be an order for the reopening of the inquest: s 58A(4).
21 An inquest is an inquisitorial proceeding, and not a proceeding between parties: R v South London Coroner; ex parte Thompson (1982) 126 Sol Jo 625 at 628; Annetts v McCann (1990) 170 CLR 596 at 616; R v North Humberside Coroner; ex parte Jamieson [1995] QB 1 at 17; R v State Coroner; ex parte Minister for Health [2009] WASCA 165, 38 WAR 553 at [21].
22 The significance of a coroner not being bound by the rules of evidence was discussed in the Victorian Court of Appeal in Priest v West [2012] VSCA 327, 40 VR 521. The relevant legislative provision was s 62(1) of the Coroners Act 2008 (Vic). In that case Maxwell P and Harper JA said, at [5]-[6]:
'[5] Under s 62(1) of the Act, the Coroner holding an inquest is expressly not bound by the rules of evidence. The subsection provides, moreover, that the Coroner "may be informed ... in any manner that the Coroner reasonably thinks fit". As Tate JA notes, the trial judge took the view that these and related provisions gave coroners "considerable latitude as to the manner in which an inquest is conducted". In his Honour's view, this statutory flexibility and 'wide discretion' told against the argument that the coroner in the present case was bound to have regard to the material in the disputed statements.
[6] With respect, we think these provisions point to the opposite conclusion. While undoubtedly giving the Coroner (appropriately) broad scope to shape and direct an investigation, these provisions emphasise Parliament's intention that the coroner should not be constrained in carrying it out. It is precisely because the Coroner must do everything possible to determine the cause and circumstances of the death that Parliament has removed all inhibitions on the collection and consideration of material which may assist in that task. Parliament has, in particular, exempted the Coroner's processes from the rules which limit the admissibility of evidence in court proceedings. Far from justifying a narrow view of the scope of an investigation, these provisions oblige the coroner to take an expansive or inclusive approach, in our view'." [Footnotes omitted.]
Of particular significance to the issues raised by these proceedings are the principles governing the conduct of a legal practitioner in making allegations against persons, including other legal practitioners, and pursuing causes which might fairly be described as weak or hopeless. Necessarily, the application of the principles will be influenced by the individual circumstances under consideration, but broad statements of principle can be discerned.
In 1998, Ipp J (as he then was) wrote an article, "Lawyers' Duties to the Court"[2], which was subsequently described as "groundbreaking".[3] His Honour made the following broad observations concerning practitioners making allegations of misconduct by other persons and pursuing hopeless cases at 85-86:
"As part of the duty to act with the utmost honour and fairness, lawyers owe a duty to the court to exercise care when making allegations of misconduct about others. Otherwise the process of the court is susceptible to abuse. In particular, before allegations are made inferring unjust conduct on the part of the court, or unprofessional conduct on the part of other lawyers, counsel must first satisfy himself by personal investigations or inquiries that a foundation exists, apart from his client's instructions, for making such allegations. If the client insists that such unsubstantiated allegations be made, it is counsel's duty to decline to carry out those instructions or to withdraw from the case.
A lawyer is often in a difficult position when a client wishes to pursue what he may regard as a hopeless case. If the lawyer is of the view that the client's case is certainly hopeless, he would be obliged to advise the client of that conclusion and urge that the case not be brought. A lawyer who proceeds with a case in such circumstances in order to make costs for himself would be guilty of a breach of his duty. The breach of duty to the court would be exacerbated if the lawyer brings a case which is utterly hopeless and it is known that the client will not be in a position to pay any costs that may be ordered against him, and where the case will harass the other party.
But if the lawyer could not come to the certain opinion that the case is hopeless, and informs the client of the risk involved, and advises the client most strongly not to proceed, and the client still insists on going on (without having any ulterior motive), the lawyer would commit no breach in taking those instructions. As Sir Thomas Bingham MR said in Ridehalgh v Horsefield:
'A legal representative is not to be held to have acted improperly, unreasonably or negligently, simply because he acts for a party who pursues a claim or defence which is plainly doomed to fail ... Legal representatives will, of course, whether barristers or solicitors, advise the clients of the perceived weakness of their case and of the risk of failure. But clients are free to reject advice and insist that cases be litigated'." [Footnotes omitted.]
[2] (1998) 114 Law Quarterly Review 63.
[3] Martin J, "Between the Devil and the Deep Blue Sea: Conflict between the duty to the client and duty to the court", Bar Association of Queensland Annual Conference, 4 March 2012.
In Legal Profession Complaints Committee v Chin [2012] WASAT 77, the Western Australian State Administrative Tribunal dealt with a number of complaints of professional misconduct and unsatisfactory professional conduct brought against a legal practitioner by the Legal Profession Complaints Committee. One of the complaints concerned a letter written by the practitioner to a solicitor for an opposing party alleging that the "firm" by which the solicitor was employed, had engaged in conduct of a "predatory nature" toward the practitioner's client. The letter also asserted that the opposing firm had acted in collusion with their client and, in substance, had assisted their client in achieving "illegitimate and unconscionable gains" from the practitioner's client. Notwithstanding a subsequent apology, when asked for an explanation of his conduct the practitioner stated he had obeyed his principals' instruction to proffer the apology, but maintained he had reason to believe that his allegations were "true" at the time of the offending letter and were "even truer today". In addition, the practitioner's letter to the Committee contained further allegations of misleading and improper conduct.
The Tribunal made the following observations at [60] and [61]:
"[60] An ordinary perusal of the letter reveals allegations of the most serious nature against a colleague, allegedly acting in a predatory manner in order to deprive his client of her properties. Ms Whitehead and Godfrey Virtue are accused of using threats against his client and backing the Strata Managers in their efforts to defraud his client and he threatened legal action against them for damages for 'tortious acts' committed upon his client.
[61] In the absence of convincing evidence substantiating such allegations, the seriousness of such accusations is patent. They would be outrageous and gratuitously offensive if not supported by objective evidence which would compel a trier of fact to come to no other conclusion. We proceed to examine the evidence given by the Practitioner in support of these allegations."
Later in the reasons, the Tribunal dealt with the obligations of a practitioner if serious allegations are to be made against a fellow practitioner at [67]-[69]:
"[67] While it is the undoubted duty of a practitioner to carry out the instructions of a client, that duty is not an unbridled one. Where a client informs a practitioner that the opposing party has committed fraud, great care must be taken by that practitioner to satisfy himself that a proper basis for such an allegation has been made. It is certainly not sufficient for the practitioner to accept the sayso of his or her client and to merely repeat that assertion, for to do so would, in our view, constitute misconduct of the most serious kind. Where, as in this case, the allegation of fraud or dishonesty is made by a client against a fellow practitioner, the duty to make extensive precautionary enquiries in order to verify the allegation before levelling an accusation of the kind made in the letter becomes paramount. Moreover, should such investigations fail to satisfy the practitioner that such a serious allegation can reasonably be made, the practitioner must refuse to make it, notwithstanding the insistence of his client. Should the client persist in requiring the practitioner to make such an allegation in the absence of supporting evidence, the practitioner should refuse to act for that client.
[68] In the case before us, no evidence, whether oral or documentary, was adduced which would justify a reasonably competent practitioner making the allegations contained in the letter. The assertion that his client does not make false allegations does not begin to satisfy the duty incumbent on a practitioner. We do not accept the evidence of the Practitioner that there was a report by a private investigator supporting those allegations when neither the nameless investigator was called nor was the alleged report or its contents placed before us.
[69] We accordingly find that the Practitioner failed to treat a professional colleague with the utmost fairness and courtesy and that he made allegations of improper conduct against fellow practitioners without a reasonable or proper basis for doing so. We find further that his conduct involved a substantial failure to reach or maintain a reasonable standard of competence and diligence and that he is accordingly guilty of professional misconduct."
It is unnecessary to embark upon a review of authorities concerned with the duties of a practitioner in making allegations of improper conduct against fellow practitioners. At the least, great care must be taken by the practitioner and a reasonable and proper basis for making the allegation must exist.[4]
3212 of 2017 – Coates complaint
[4] Huntindale Village Pty Ltd v Korda [2015] WASCA 101 at [39]; Metaxas v Legal Profession Complaints Committee [2020] WASCA 27 at [63]-[69].
Mr Coates is the Director of Public Prosecutions for Tasmania. In August 2014 he was the Acting Director of Public Prosecutions and, by letter of 29 August 2014 to the Board, Mr Coates made a complaint of professional misconduct by Ms Etter. The letter by Mr Coates was as follows:
"Dear Sir
BARBARA ETTER
I herewith make a complaint of professional misconduct and/ or unsatisfactory professional conduct in respect of the abovenamed legal practitioner. Ms Etter is the principal of the legal firm Better Consulting, 145 King Street, Sandy Bay.
For a number of years Ms Etter has purported to be the solicitor acting for Susan Neill-Fraser. Ms Neill-Fraser was convicted of the murder of her partner, Robert Chappell. Subsequent appeals to the Court of Criminal Appeal and the High Court were rejected.
For your information, I enclose a copy of the decision of the Court of Criminal Appeal (annexure 'A') which contains a summary of the evidence at trial.
On the 60 Minutes television programme aired on the Nine Network on the evening of 24 August 2014, and now available on the 60 Minutes website, Barbara Etter was introduced as a lawyer who was adding her 'considerable legal and other experience to the campaign to free convicted murderer, Susan Neill-Fraser'.
Ms Etter was shown participating in an interview during which she said that at Ms Neill-Fraser's trial the jury was shown; a 'highly prejudicial photograph' of a dinghy with a luminol reaction and 'being told there was blood, Bob Chappell's blood, in that dinghy'. A substantial part of the programme was devoted to the allegation that the jury was so told, wrongly, and that doing so made the conviction a miscarriage of justice. The legitimacy of the allegation that the jury were so told depended on Ms Etter's word that it was, no transcript was cited.
In fact this is not the first time Ms Etter has raised this issue. On the blog on her firm's website, in an entry dated 13 June 2014, Ms Etter stated (see annexure 'B'):
'It should be of great public concern that 30 years on from Chamberlain where presumptive testing was wrongly used to identify so-called blood spray under the family car dashboard, similar inappropriate reliance has been placed on presumptive testing of the Four Winds' dinghy in Sue's case. A highly prejudicial photo of the dinghy glowing blue in sections to treatment was presented to the. jury. The impression was created of Bob Chappell's blood having been found in the dinghy (which it was argued was used to dump his body in the deeper depths of the Derwent). Independent expert opinion establishes that there was no confirmed blood from Bob Chappell in the dinghy.'
In fact, the jury was not told Bob Chappell' s blood was found in the dinghy nor that its presence accounted for the luminol reaction. The evidence was that luminol was a screening test for blood but that testing had failed to demonstrate that human blood had caused the reaction. The jury was given an exhibit sheet summarising the forensic test results. Some exhibits were shown to have tested positively to luminol and were also shown to be blood, and some, like the dinghy, were shown to have only tested positively to luminol. At no point did either the prosecutor or the trial judge claim. that testing had demonstrated the presence of the blood of the victim, Bob Chappell, in the dinghy.
I enclose Mr Ellis SC's opening address in respect of the matters (annexure 'C') and the evidence of Ms McHoul, the forensic scientist (annexure 'D'). In her evidence she repeatedly stated that luminol is a screening test for blood and it can react with other substances. She stated she could not confirm the presence of blood in the dinghy. (See, for example, pp 639, 640, 653, 657-8, 663, 668-9, 673). Clearly her evidence was that luminol was a screening test for blood but there could be other possibilities. A forensic report was tendered which clearly showed when luminol results were subsequently confirmed to be blood (annexure 'E').
In his closing address, Mr Ellis SC, the Crown prosecutor, did not mention luminol or the possibility of there being blood in the dinghy. Mr Gunson SC, counsel for the accused, mentioned it extensively saying the evidence did not confirm that blood was present (annexure 'F').
In his summing up, His Honour did not mention luminol in respect to the dinghy but did mention luminol in another context, when he stated (annexure 'G'):
'In other words, luminol which reacts positively to blood but also gives false positive results did produce a positive reaction in area 11. So maybe there was blood there, maybe luminol was reacting to something else.
Clearly the jury were left in no doubt that whilst luminol is used as a screening test for blood, it only indicates the possibility that blood is present and it can react with other substances.
Ms Etter has been involved in this case for several years and was shown in the programme with voluminous documentation, including the trial transcript. Her misrepresentation was deliberate and is present of what she on her blog in an entry on 26 March 2013 entitled 'Innocence regained - strategy used to free Lindy Chamberlain' approved as bully tactics 'required to stir an, impervious·administration to action' (annexure 'H'). A concept which Ms Etter further endorsed in her entry of 13 June 2014 (annexure 'B1') when she stated:
'The legal team is now in the process of gathering statements, affidavits and independent expert reports and analysing/deconstructing key aspects of the Crown case to support a petition for mercy, under section 419 of the Tasmanian Criminal Code, to have the matter referred back to the courts. The decision regarding referral will be a purely political decision which is not judicially reviewable (a situation which has come under strong criticism and which has led to the introduction of further right to appeal legislation in SA last year). As Stuart Tipple, Lindy Chamberlain's lawyer, pointed out in his recent public lecture at UTAS, "people power" as in Chamberlain, will be critical in drawing attention to this miscarriage of justice and convincing Government to take necessary action.'
The false statements in respect of the luminol evidence were made in the course of Ms Etter's legal practice, in which she sees her role as bringing public pressure to bear on the Attorney-General to grant a petition of mercy for her client. In other words, she is attempting to garner public sympathy by spreading a falsehood.
I also refer you to the findings of the Coroner in respect to this matter (annexure 'I'). It was asserted to the Coroner by Ms Neill-Fraser's solicitor (who I am instructed was Ms Etter) that in respect of DVD video recorded interviews between the police and Ms Neill-Fraser that 'significant pieces of conversation appear to have not been included in the taped interviews for the benefit of the court' (see p 26 of the findings).
It was further asserted to the Coroner that a Senior Sergeant Kerry Whitwam, on the instructions of a Detective Sinnitt, had edited the video interviews and that the ones played in court had been edited without the knowledge of defence counsel (see pp 26-27 of the findings).
The Coroner found they were very serious allegations to make against two police officers of having fabricated or interfered with evidence in a homicide/coronial investigation (see p 27 of the findings). He found no evidence to support the allegations.
I enclose the statutory declaration of Senior Sergeant Whitwam, which was disclosed to the defence prior to the trial and instructions for editing from Detective Sinnitt (annexures 'J' & 'K'). Senior Sergeant Whitwam' s statutory declaration reveals that she edited and duplicated numerous CDs and DVDs relating to the Neill-Fraser matter. The vast majority of those disks contained audio recordings from a listening device that had been lawfully installed in Ms Neill-Fraser's house in Alison Street, West Hobart. ·
There was also editing required of CCTV footage from an ATM in Sandy Bay Road and a Coles service station on Sandy Bay Road. Similarly there was a large amount of footage from Bunnings and K&D as the accused said that was where she was on the relevant day. This was disclosed to defence.
In 2009/2010, Police did not edit video recorded interviews and there is absolutely nothing to suggest that any such editing occurred in this case. Police conducted video recorded interviews using a machine that produces an original DVD, a copy DVD, an original audio CD and a copy audio CD. The originals are kept by the police, The copy audio CD is generally disclosed to defence and the copy DVD is provided to our Office in relation to indictable matters with the police file.
The DVD has built into it a running digital clock so if in fact Sergeant Whitwam had edited any of the interviews with Ms Neill-Fraser it would have been readily apparent, a fact Ms Etter would have known if she had viewed the video recorded interviews. The instructions of Detective Sinnitt to Sergeant Whitwam related entirely to the listening device material. Despite the listening device material being edited, which is normal practice so that only relevant material is referred to, copies of all 96 original disks were provided to Ms Neill-Fraser's solicitors prior to trial, and ultimately they were not relied upon at trial.
I have spoken to Mr David Gunson SC, who was Ms Neill-Fraser's counsel at trial. He has authorised me to say that at no stage has Ms Etter approached him about whether there was a possibility that the video recorded interviews were edited. Also, no approach has been made to this Office.
On the face of it, it would appear Ms Etter has made serious allegations to the Coroner concerning two police officers without any factual foundation about which any small amount of investigation could have shown the allegations to be wrong.
In summary, this is not a case of an inexperienced solicitor making over-enthusiastic comments in 'the heat of the moment' whilst representing her client. Ms Etter sees her role as one of building public pressure on the Attorney-General in respect of a future application for a petition of mercy. In doing so, she has misled the public and made unfounded serious allegations against two police officers, allegations that if any due diligence was carried out would be shown to be false. Such behaviour is not fitting of a legal practitioner and has a tendency to bring the law into disrepute.
If you have any queries, please do not hesitate to contact me.
Yours faithfully"
The complaint by Mr Coates forms the basis of the Board's application for a declaration, and the particulars of the conduct by Ms Etter upon which the Board relies are as follows:
"The respondent will seek the following orders:
1A declaration that the applicant is guilty of professional misconduct or unsatisfactory professional conduct in that being an Australian lawyer, in the course of acting for Susan Blythe Neill-Fraser in matters relating to Neill-Fraser's conviction for murdering Robert Adrian Chappell on or about 26 January 2009, she:
(a)authored a letter dated 17 July 2013 and caused it to be sent to the Coroner's Associate which alleged that Tasmania Police, and specifically Senior Sergeant Whitwam of Forensic Services Hobart and Detective Sinnitt of Hobart CIB, may have edited 'listening device material' and Neill-Fraser's DVD records of interview and asked the Coroner to investigate the allegation, when there was no reasonable basis for making the allegation;
(b)on or about 13 June 2014, authored and caused to be published to her online blog the statement:
'It should be of great public concern that 30 years on from Chamberlain where presumptive testing was wrongly used to identify so-called blood spray under the family car dashboard, similar inappropriate reliance has been placed on presumptive testing of the Four Winds dinghy in Sue's case. A highly prejudicial photo of the dinghy glowing blue in sections due to treatment was presented to the jury. The impression created of Bob Chappell's blood having been found in the dinghy (which it was argued was used to dump his body in the deeper depths of the Derwent). Independent expert opinion establishes that there was no confirmed blood from Bob Chappell in the Dinghy.'
when the jury had not been told that Chappell's blood was found in the dinghy and there was no reasonable basis for making the statement.
(c)on or about 24 August 2014, appeared on the Australian television program '60 Minutes' and said:
'The Court was shown, I think, a highly prejudicial photo ... of the Four Winds' dinghy glowing bright blue and being told that there was blood, that Bob Chappell's blood was in that dinghy ...'
when the Court had not been told that Mr Chappell's blood was found in the dinghy and there was no reasonable basis for making the statement."
As disclosed in the particulars, three statements by Ms Etter provide the basis for the Board's case against her. The first of the statements is in a letter dated 17 July 2013 addressed to the coroner's associate and signed by Ms Etter as a barrister and solicitor. The letter, which is set out in full at [50], raised the issue of editing of material in relation to the trial of Ms Neill-Fraser.
The second statement upon which the Board relies was a blog Ms Etter posted on 13 June 2014. It was posted in the context of a candlelight vigil on the lawns of Parliament House for Ms Neill-Fraser, and made assertions that fresh evidence and flaws in the investigation and forensic evidence had been identified. The full blog is set out at [73].
The third impugned statement is based on remarks made by Ms Etter during an interview aired on the 60 Minutes television program on 24 August 2014 (see [75]).
General background
As mentioned, on 15 October 2010 a jury found Ms Neill-Fraser guilty of the murder of her partner, Mr Robert Chappell. The appeal against conviction was heard on 11 August 2011 and was dismissed on 6 March 2012: Neill-Fraser v Tasmania [2012] TASCCA 2. Ms Neill-Fraser's application for special leave to appeal to the High Court was dismissed on 7 September 2012.
In proceedings 3212 of 2017, the Coates complaint, on 8 November 2017 Ms Etter swore and filed an affidavit. She said she received her practising certificate in Tasmania on 21 July 2012 and, in 2013 and 2014, acting on the instructions of Ms Neill-Fraser, she "investigated aspects of the police investigation and the evidence led at her 2010 trial in the Supreme Court of Tasmania".
Mr Craig Mackie is a legal practitioner who acted for Ms Neill-Fraser in relation to her appeal against conviction and sentence. In an affidavit of 3 May 2018, Mr Mackie said he closed his file shortly after delivery of the judgment of the Court of Criminal Appeal. In approximately 2015, having received an authority signed by Ms Neill-Fraser directing him to release her files to Ms Etter, he provided the files to Ms Etter. According to Mr Mackie, other than communication concerning the release of the files, he has not communicated with Ms Etter concerning the case against Ms Neill-Fraser.
In her affidavit of 8 November 2017, Ms Etter briefly identified matters she said she "uncovered" while investigating aspects of the police investigation and evidence in 2013 and 2014:
"4 As part of those inquiries, I uncovered:
a a statement from Senior Sergeant Whitwam of the Tasmania Police dated 5 April 2010 that on its face suggested the need for further inquiry or possible inappropriate practices with respect to investigative materials (CDs and DVDs); and
b deficiencies in the evidence given at trial by Forensic Science Service Tasmania (FSST) scientist Deborah McHoul, issues surrounding statements made by the DPP in his opening address concerning blood in the Four Winds dinghy and the tendering of a photo of the dinghy glowing blue after luminol treatment, and a failure by both the Prosecution and Defence at trial to act upon the written advice of FSST provided pre-trial that the confirmatory tests for human blood in the Four Winds dinghy were all negative."
On 1 September 2009 Tasmania Police gave notice to the coroner of the suspected unnatural or violent death of Mr Chappell. The coroner requested Tasmania Police to investigate the death, but the inquest was adjourned until the conclusion of the proceedings in respect of the charge of murder.
Special leave to appeal to the High Court having been refused on 7 September 2012, in January 2013, the coroner made enquiries of Tasmania Police and the Director of Public Prosecutions (the Director), and the investigation file was made available to the coroner for the purposes of considering whether to hold a public inquest into the disappearance of Mr Chappell.
Letter 17 July 2013
On 17 July 2013 Ms Etter wrote to the coroner. This is the letter identified in par 1(a) of the Particulars of Complaint:
"Mr Russell Smith
Coroner's Associate
Magistrates Court of Tasmania
21 Liverpool StreetHOBART TAS 7001
17 July 2013
RE SUBMISSIONS BY SUE NEILL-FRASER FOR AN INQUEST TO BE RESUMED INTO THE 2009 DEATH Of MR BOB CHAPPELL-THE PROPRIETY OF POLICE EVIDENCE IN RELATION TO LISTENING DEVICE MATERIAL AND THE DVD'S OF THE RECORDS OF INTERVIEW
Dear Mr Smith
In my ongoing review of the materials available in the Sue Neill-Fraser matter, I came across a statement from Senior Sergeant Kerrie Anne Whitwam of Forensic Services Hobart dated 5 April 2010 (See attached).
While Whitwam's statement was disclosed to the Defence, she was never called as a witness at the trial.
I am concerned to read in her statement, if I have read it correctly, that Senior Sergeant Whitwam edited the CDs and DVD's relating to Operation Ransack or the Bob Chappell murder investigation.
The statement says:
The editing was undertaken as per written instructions and verbal assistance from Detective Sinnitt of Hobart CIB. A number of the discs were edited by removing specific parts of the audio file with the NeroWaveEditor programme.
The statement also says that all the 'product discs' were duplicated after the editing process. It would therefore have been the edited discs and not a true copy of the original discs that were actually provided to the Defence.
Ms Sue Neill-Fraser has always maintained that sections of her DVD ROI's have been edited out.
However, we have been unable to ascertain whether this is the case as police have refused Defence access to the DVD's or a copy thereof. Ms Neill-Fraser also has a clear recollection of the material that appears to be missing from the Record of Interview.
It seems very strange that the listening device material would be edited under instructions from one of the investigating detectives. It would be even stranger if it is material similar to the alleged missing material from the ROI that is also missing from the LD material.
It would be most helpful if the Coroner could. urgently seek the following information:
·Whether the original tapes (LD material and ROI DVDs) are still in existence and available for inspection;
·A further statement and details from both Whitwam and Sinnitt as to what was actually edited ie DVDs of ROI and Listening Device original tapes?;
·A copy of the written instructions provided by Sinnitt to Whitwam;
·Information from Whitwam as to the 'verbal assistance' provided by Sinnitt and the reasons provided as to why the tapes were to be edited;
·A copy of any diary or day book entries made by Sinnitt and Whitwam relating to this exercise; and
·A copy of any TASPOL guidelines or Standard Operating Procedures that exist in relation to the conduct of such an exercise.
There is no mention of this 'editing' exercise on the Police Investigation Log maintained by Tasmania Police. There is also no mention of any editing in the statement of Sinnitt, whose statement preceded the exercise outlined. There also appears to be no supplementary statement from Sinnitt covering this issue.
The omission of critical information could well have contributed to a Miscarriage of Justice in this matter.
Please do not hesitate to contact me should you require any further information."
The statement by Ms Whitwam to which Ms Etter referred in her letter of 17 July 2013 was dated 5 April 2010 and was in the following terms:
"My full name is Kerrie Anne Whitwam, I am a Senior Sergeant of Tasmania Police currently stationed at Forensic Services, Hobart.
About 9am on Saturday 13 February 2010, I commenced edited and duplicating numerous CDs and DVDs relating to Operation Ransack. The editing was undertaken as per written instructions and verbal assistance from Detective Sinnitt of Hobart CIB. A number of the discs were edited by removing specific parts of the audio file with the NeroWaveEdltor programme. The remaining discs were edited In real time by copying the required audio directly to CD. All the product discs were duplicated as per Detective Sinnitt's instructions. All discs were handed to me by and returned to Detective Sinnitt.
On Monday 15 March 2010, I concluded duplicating 96 listening device DVD recordings for Detective Sinnitt. This task took a number of weeks and included repair of two discs, The copying of each disc averaged 1 hour. All discs were handed to me by and returned to Detective Sinnitt."
In respect of this part of the Coates complaint, I am concerned solely with Ms Etter's letter of 17 July 2013, and not with any other written or oral contentions advanced by Ms Etter to the coroner. Further, any view the coroner formed about the letter, or contentions advanced to the coroner, is irrelevant to my consideration. The Board particulars with respect to the letter of 17 July 2013 complain that by the letter, Ms Etter alleged that Ms Whitwam and Detective Sinnitt "may have edited listening device material" and "Neill-Fraser's DVD record of interview" when there was "no reasonable basis for making the allegations".
It is common ground that all relevant material in its unedited form was provided to senior counsel for Ms Neill-Fraser, the late Mr David Gunson SC, prior to the trial. The chain of correspondence between the Director and counsel for Ms Neill-Fraser is set out in an affidavit of the Deputy Director of Public Prosecutions, Ms Linda Mason SC, dated 22 March 2021. It is unnecessary to discuss the correspondence in detail. It is sufficient to note that full disclosure was made, and counsel for Ms Neill-Fraser was provided with unedited discs and transcripts of interviews with Ms Neill-Fraser, and with unedited discs of listening device material.
The position with respect to the impugned material was summarised by Mr Coates in his letter to the Board of 29 August 2014:
"I enclose the statutory declaration of Senior Sergeant Whitwam, which was disclosed to the defence prior to the trial and instructions for editing from Detective Sinnitt (annexures 'J' & 'K'). Senior Sergeant Whitwam's statutory declaration reveals that she edited and duplicated numerous CDs and DVDs relating to the Neill-Fraser matter. The vast majority of those disks contained audio recordings from a listening device that had been lawfully installed in Ms Neill-Fraser's house in Alison Sheet, West Hobart.
There was also editing required of CCTV footage from an ATM in Sandy Bay Road and a Coles service station on Sandy Bay Road. Similarly there was a large amount of footage from Bunnings and K&D as the accused said that was where she was on the relevant day. This was all disclosed To defence.
In 2009/2010, Police did not edit video recorded interviews and there is absolutely nothing to suggest that any such editing occurred in this case. Police conducted video recorded interviews using a machine that produces an original DVD, a copy DVD, an original audio CD and a copy audio CD. The originals are kept by the police, The copy audio CD is generally disclosed to defence and the copy DVD is provided to our Office in relation to indictable matters with the police file.
The DVD has built into it a running digital clock so if in fact Sergeant Whitwam had edited any of the interviews with Ms Neill-Fraser it would have been readily apparent, a fact Ms Etter would have known if she had viewed the video recorded interviews. The instructions of Detective Sinnitt to Sergeant Whitwam related entirely to the listening device material. Despite the listening device material being edited, which is normal practice so that only relevant material is referred to, copies of all 96 original disks were provided to Ms Neill-Fraser's solicitors prior to trial, and ultimately they were not relied upon at trial.
I have spoken to Mr David Gunson SC, who was Ms Neill-Fraser's counsel at trial. He has authorised me to say that at no stage has Ms Etter approached him about whether there was a possibility that the video recorded interviews were edited.
Also, no approach has been made to this Office."
Ms Etter's response
The Board having received the complaint from Mr Coates on 2 September 2014, wrote to Ms Etter on 10 September 2014 informing her of her right to make submissions to the Board regarding the matter, including whether the Board should summarily dismiss the complaint. A copy of the letter of complaint by Mr Coates was provided to Ms Etter.
On 24 September 2014 Ms Etter responded with a written submission that the Board should summarily dismiss the complaint. In respect of the letter to the coroner of 17 July 2013, after referring to a section of the coroner's findings, Ms Etter provided the following explanation:
"It is critical in understanding these comments [by the coroner] to refer to my submissions to the Coroner on the matter.
On 8 May 2013, I wrote to the Coroner's Associate and requested access to the DVDs to enable them to be viewed by Defence Counsel (see Attachment C). The heading of the letter was 'RE SUBMISSIONS BY SUE NEILL-FRASER FOR AN INQUEST TO BE RESUMED INTO THE 2009 DEATH OF MR BOB CHAPPELL- ACCESS TO ADDITIONAL INFORMATION SOUGHT - DVDS OF RECORDS OF INTERVIEW CONDUCTED BY POLICE IN MARCH AND MAY 2009'. My client had been trying to access copies of the DVDs since May 2012 without success (see correspondence from previous solicitor Ms Madeleine Ogilvie dated 3 May 2012 to Tasmania Police and a follow up letter dated 14 July 2012 at Attachment D).
The relevant paragraph in my 8 May 2013 letter stated:
We are seeking copies of the DVDs to enable them to be viewed by Defence counsel particularly In light of allegations from Ms Neill-Fraser that significant pieces of conversation appear to have been not included in the taped interviews for the benefit of the court. Such access is also required in relation to the urgent preparation of the Petition for Mercy. (emphasis added)
Paragraph 10 of the Coroner's findings omits the words 'particularly in light of allegations from Ms Neill-Fraser'. These were not allegations emanating from me personally.
Copies of the DVDs were not provided and a response from the Coroner's Office was not received (other than an acknowledgement letter dated 27 May 2013).
I then wrote to the Coroner's Associate over two months later on 17 July 2013 (see Attachment E) in relation to the propriety of police evidence in relation to listening device material and the DVDs of the Records of Interview. I refer to the Whitwam statement and quote from it and state my concern, qualifying this with 'if I have read it [the statement] correctly'.
I would ask that you closely read the wording and assess the tone of this letter. My letter asked whether the Coroner could urgently seek certain information and referred to a distinct lack of associated records (for instance in the Police Investigation Log or Detective Senior Constable Sinnitt's statements) about the editing process.
It is submitted that the issues raised with the Coroner were not 'serious allegations' at all. They were merely routine and appropriate inquiries following up on information unearthed during a review of materials handed to me from previous lawyers about editing of certain records. I also did not receive a response to this request for information other than an acknowledgment letter dated 18 July 2013.
I believe that the language that I have used in my 2013 letter to the Coroner's Associate is professional, courteous and restrained. It Is primarily seeking further and better particulars.
It appears that a number of issues in the Coroner's findings (cited above) are represented as assertions from me but most are actually re-statements of what Senior Sergeant Whitwam said in her own statement.
The statement of Whitwam was particularly unclear as to what was actually undertaken in the editing process. I also could not locate in the materials provided to me the written instructions that had been referred to. In any case, there was still the issue of the unknown verbal 'assistance' or instructions from Detective Senior Constable Sinnitt from Hobart CIB.
There was no serious allegation made against Senior Sergeant Whitwam, in fact it was considered possible that she may have done the right thing by submitting her statement outlining details of an editing process.
It was not possible to view the DVDs as no DVDs were handed over to me in the boxes of materials supplied and we had been trying for over a year at that time to obtain copies from the police without success. Note, copies of the DVDs were only supplied to me under RTI on 17 April. 2014 (via letter dated 16 April 2014).
As to the allegation that the matter was raised 'where there existed no factual basis or foundation for bringing such allegations', I attach:
·Ms Sue Neill-Fraser's handwritten comments on p 380 of her March 2009 ROI, which were apparently provided to Mr Gunson (or his junior counsel) prior to trial. For example, see her comment 'I believe there is a substantial amount missing here'. She also states that between pages 381 and 383 of the ROI that she thinks there are 'missing questions' (Attachment F);
·Ms Sue Neill-Fraser's handwritten instructions dated 27 November 2009 but headed 'Notes for DG -via Louise - Feb 2010' highlighting the issue which were apparently provided to Mr Gunson (or his junior counsel). She states 'I am sure both interview disks have had bits taken out. I need to watch them to identify what and where (list of what I remember included)' (Attachment G);
·An extract from a Legal in confidence briefing re Appeal Against Conviction and Sentence from Ms Kate Cuthbertson to Mr Croucher (no date) in relation to issues to be considered for the Court of Criminal Appeal proceedings. At page 14, the document refers to Ms Neill Fraser's claims that the interviews were edited. The document states 'She says she repeatedly requested from Mr Gunson an opportunity to view them, but was ignored'. On page 14 and 15 points are provided as what have been identified by Sue Neill-Fraser as 'missing or altered'. There was nothing in the material available to me at that time or advice from Ms Neill-Fraser to indicate that the DVDs had been checked (Attachment H);
It is submitted that there existed a factual basis or foundation for bringing such material to the attention of the Coroner. Indeed, based on this material, the unclear Whitwam statement, the unknown 'verbal assistance' and written instructions from Sinnitt (and lack of associated records), and ongoing instructions from my client (who I meet with in Risdon Prison regularly - usually on a weekly basis), I raised this matter in writing with the Coroner in what I believe was a professional and appropriate manner.
The manner in which my correspondence was represented by the Coroner in his January 2014 findings may have given an inappropriate impression as to my conduct in the matter.
As Ms Neill-Fraser's lawyer, I had a clear duty to my client to raise this issue with the appropriate authorities. However, I am fully aware that I am an officer of the court and that my duty to the court is 'paramount' or 'overriding' (See G E Dal Pont lawyers' Professional Responsibility Fourth Edition Thomson Reuters 2010 p 369). I am aware that the lawyer's duty is to 'do right by their clients and right by the court' (ibid p 372). I am also aware that to the extent that the duty to the court conflicts with a duty to the client, the former duty must prevail. In the famous words of Lord Reid in Rondel v Worsley [1969] 1 AC 191 at 227:
Every counsel has a duty to his client fearlessly to raise every issue, advance every argument, and ask every question, however distasteful, which he thinks will help his client's case. But, as an officer of the court concerned in the administration of justice, he has an overriding duty to the court, to the standards of his profession, and to the public, which may and often does lead to a conflict with his client's wishes or with what the client think are his personal interests. Counsel must not mislead the court.
On balance, given the possibility of conflicting duties, I submit that it was appropriate to raise the issue of the possible editing of the DVDs, in the manner in which I did with the Coroner, given the seriousness of the matter (the disappearance of Mr Bob Chappell and the subsequent conviction and imprisonment, possibly wrongfully, of Ms Neill-Fraser for 23 years), instructions from my client where she was convinced such editing had occurred, and the existing and documented factual basis or foundation for this matter (as outlined above). I certainly did not mislead the court at any time.
It is submitted that I did not inappropriately make serious allegations against two Police Officers regarding their alleged interference with and or fabrication of evidence before the Court in circumstances where there existed no factual basis or foundation for bringing such allegations."
A legal practitioner, Ms Emily Warner, was tasked by the Board with investigating complaints concerning the conduct of Ms Etter. In 2015 she posed a number of questions to Ms Etter, including questions concerning the editing raised by Ms Etter in the context of a coronial inquiry. Ms Etter responded to Ms Warner by letter of 10 November 2015 and asserted, as she asserted in evidence, that efforts over a long period to obtain relevant DVDs and CDs had been unsuccessful. Ms Etter said she spoke with a barrister, Mr Greg Barns, prior to drafting the letter to the coroner of 17 July 2013, and he advised that the situation described in the Whitwam statement "did seem a bit strange but that he had not experienced any editing of ROI DVD's". In addition, Ms Etter said she had contacted an experienced former police officer and forensic investigator in Western Australia who had advised that the situation "could obviously be looked upon as being something sinister but then again there might be an innocent explanation". Ms Etter's response to Ms Warner continued:
"He [former police officer] commented that further information was needed from Tasmania Police in order to properly assess the effect of what was undertaken and why. He considered that the view that something was amiss was 'open to be had'."
On 25 November 2015 Ms Warner wrote again to Ms Etter seeking answers to additional questions. Ms Etter responded on 8 December 2015 and advised Ms Warner that during the morning of 17 July 2013, prior to preparing the letter of that date to the coroner, Ms Etter was instructed by Ms Neill-Fraser that material was missing from the record of interview.
In oral evidence, Ms Etter explained that having located the declaration of Ms Whitwam, she found it "interesting" that Ms Whitwam stated she had edited the material on instructions from Detective Sinnitt. Ms Etter thought this was unusual and worthy of inquiry, particularly as there was no record of this activity in the police log. Further, efforts to obtain the relevant material had been unsuccessful.
As to her state of mind, in evidence Ms Etter said she did not think Ms Whitwam had done anything improper. She was more interested in what had been done and the instructions which had been given, and she required information as to the editing.
Discussion
A number of significant points arise from the terms of the letter and Ms Etter's response to the Board dated 24 September 2014. First, Ms Etter was acting for Ms Neill-Fraser and, on behalf of her client, was seeking to persuade the coroner to resume an inquest into the death of Mr Chappell. In that context, Ms Neill-Fraser had instructed Ms Etter that sections of the interviews with her had been edited from the DVD.
Secondly, attempts to obtain relevant material in this context had been unsuccessful. During cross-examination Ms Etter agreed she had not sought to obtain trial exhibits from the Supreme Court, but no evidence was led as to whether the court retained custody of the exhibits after special leave to appeal to the High Court was refused on 7 September 2012.
Thirdly, in her letter of 17 July 2013 Ms Etter qualified her approach to the coroner in two important ways:
· First, that the statement of Ms Whitwam which gave rise to Ms Etter's concern was disclosed to the defence at trial.
· Secondly, Ms Etter's concern from reading the statement was hedged by the words "if I have read it correctly".
Next, in the letter Ms Etter informed the coroner of her instructions from Ms Neill-Fraser that "sections of her DVD ROI's have been edited out", and added "we have been unable to ascertain whether this is the case". The letter continued with an observation that it seemed "very strange that the listening device material would be edited under instructions from one of the investigating detectives".
In her response to the Board of 24 September 2014, Ms Etter suggested the Board read closely the wording of her letter to the coroner, and assess the tone of her letter. She expressed the belief that the language she used was "professional, courteous and restrained", and that the effect of the letter was "primarily seeking further and better particulars". In my view there is force in those contentions.
Having made the observations about her instructions, and that it seemed strange that the material would be edited under instructions from an investigating officer, Ms Etter began the next paragraph in her letter of 17 July 2013 with the words "It would be most helpful if the coroner could urgently seek the following information". The letter then identified the material that Ms Etter was requesting the coroner obtain. In substance, it was a request for discovery of documents that might lead to further lines of investigation or answers to the issues raised by Ms Etter.
It should be noted, while addressing the content of the letter, that the questions raised by Ms Etter were in the context of admitted editing of CDs and DVDs containing listening device material. However, no editing occurred of video recorded interviews.
In considering this part of the complaint against Ms Etter, it is important to bear in mind that this particular complaint is based solely upon the contents of the letter of 17 July 2013. The complaint is centred on the proposition that there was no reasonable basis for making the allegation that police "may have edited listening device material and Neill-Fraser's DVD records of interview". The letter did not allege that Ms Whitwam or any other officer had behaved inappropriately. The questions raised by Ms Etter were qualified by the plain observation that Ms Whitwam's statement had been disclosed to the defence and that Ms Etter was concerned by the statement, "if I read it correctly", that Ms Whitwam may have edited this material. The tone of the letter was respectful. It sought that the coroner obtain further information.
In written submissions, the Board observed that the request to the coroner to investigate the matter was "misconceived" because, by reason of s 25(4) of the Coroner's Act 1995, the coroner could not make any finding inconsistent with the verdict of the jury that Ms Neill-Fraser was guilty of murder. This issue was not raised with Ms Etter during cross-examination, and it is irrelevant to my consideration of Ms Etter's conduct in writing the letter.
I find that the other particulars in the Greer complaint are not proven.
ATTACHMENT A
MERCURY
Tasmania
High-profile Queen's Counsel Robert Richter met with Premier Will Hodgman over murder case
PATRICK BILLINGS, Mercury
August 19, 2017 12:00am
:· Subscriber only
ONE of Australia's most prominent silks, Robert Richter QC, has called on the State Government to launch an independent inquiry into the Susan Neill-Fraser case.
The request was made in a behind-closed-doors meeting with Premier Will Hodgman, Tasmania's Acting Attorney-General Matthew Groom and SolicitorGeneral Michael O'Farrell on May 11 this year, The Mercury revealed on Saturday.
At the meeting, Mr Richter, who lists Mick Gatto and mass killer, Julian Knight as past clients and is representing Cardinal George Pell over historical sex offences, pressed for the independent probe.
Neill-Fraser is serving 23 years for the 2009 killing of partner Bob Chappell on their yacht on the River Derwent.
The 62-year-old is fighting the conviction under landmark legislation that allows for new appeals if "fresh and compelling" evidence emerges.
Mr Richter has previously questioned Neill-Fraser's conviction, which was upheld on appeal, writing to former attorney-general Brian Wightman about the matter in 2013.
At the May meeting, attended by two other unnamed people, Mr Richter argued for Meaghan Vass to be granted indemnity from prosecution.
Ms Vass was a then homeless 15-year-old who was called to give evidence at Neill-Fraser's murder trial, after her DNA was found on the couple's yacht. Ms Vass denied ever being on the Four Winds and prosecutors argued her DNA was likely transferred from elsewhere to the yacht.
The Mercury understands Ms Vass has since provided a statutory declaration claiming Neill-Fraser was not on the boat the day Mr Chappell, whose body has never been found, disappeared.
She is understood to have put two other suspects in the frame. Her evidence was part of the dossier Mr Richter gave the Government in a bid to launch an inquiry.
Mr Richter and his companions asked that any inquiry be held by an interstate former judge or director of public prosecutions. But they were told there would be no inquiry and any application for immunity should be made to Tasmania's Director of Public Prosecutions, Daryl Coates SC.
The Government confirmed the meeting but would not comment further on it.
"A meeting was held at the request of Mr Richter. It would be inappropriate to comment on the topics of discussion," a Government spokesman said.
News of the meeting comes in the wake of a chaotic few weeks for the case.
The charging of Karen Patricia Nancy Keefe, 41, on August 9 with perverting justice and corrupting a witness kicked off a demoralising week for Neill-Fraser and her supporters. Police allege Ms Keefe provided false evidence in the form of an affidavit including evidence relating to Neill-Fraser and Ms Vass.
On the corrupting a witness charge, police allege Ms Keefe agreed to receive $3000 cash in property, a $40,000 reward and a $50,000 education fund for herself and her children "in consideration for an understanding that Meaghan Vass be called as a witness, in a judicial proceeding, to provide false evidence".
A few days later, police arrested a 57 year old man, saying they would charge him on summons with perverting justice. Police said they will allege the man provided false evidence in an application by Neill-Fraser to appeal her 2010 conviction.
Then on Wednesday, another bombshell – Hobart lawyer Jeffrey Ian Thompson was charged with perverting justice in relation to the case.
Police allege Mr Thompson, who was working with Neill-Fraser's former defence solicitor Barbara Etter at the time, deliberately influenced Mr Gleeson and prejudiced photographic evidence in support of Neill-Fraser's appeal.
The Mercury does not suggest Ms Etter, who left the defence team in June and could not be reached, is guilty of any wrongdoing.
In the wake of Mr Thompson's arrest, police for the first time talked about an alleged "conspiracy" to pervert the course of justice that had began in November.
A police spokeswoman said that during an unrelated investigation in early February, police were given information alleging a possible conspiracy to pervert justice by falsifying evidence in support of Neill-Fraser's appeal, which is currently before the court.
The word from inside the force is there will more charges to follow.
Outside court after Mr Thompson's appearance on Wednesday, Neill-Fraser's daughter Sarah Bowles said her mother would be "shocked and in disbelief with regard to this latest development".
Renowned barrister Tom Percy QC, who is representing Neill-Fraser pro bono, declined to comment on developments this week, saying he "might have more to say" on Wednesday when the case heads to the Supreme Court in Hobart for a mention.
Melbourne criminal law specialist Paul Galbally has confirmed he is still on the defence team but declined to comment further.
Legal reform activist Bob Moles – who runs a project investigating alleged wrongful convictions in South Australia – believed the appeal could go ahead despite the charges.
"I'm of the view that the Neill-Fraser appeal could and would be successful if the appeal court was informed of the errors which had occurred at trial" he said. "They have nothing whatever to do with the current events."
Dr Moles highlighted the court's decision to allow evidence about luminol – a screening test for blood but not a conclusive one – to be heard at the trial. But former Tasmanian DPP Tim Ellis SC, who prosecuted Neill-Fraser, said the defence claims surrounding luminol were baseless.
"I never claimed it was blood in there. I said it was tested with luminol but then it was examined for blood ... our witness said that she couldn't say it was blood. The jury was never addressed on the basis it was blood in there, it's a complete nonissue," he said.
Tasmania Police has repeatedly defended the investigation, which it said had survived the scrutiny of an appeal and a coroner's investigation.
"Tasmania Police has no concerns about the soundness of the Supreme Court judgment in this matter, the investigation, or the evidence tendered to the court," a spokeswoman said.
Police would not comment on current matters.
"The investigation is ongoing and there is the possibility of further charges," Assistant Commissioner Glenn Frame said.
ATTACHMENT B
Sue Neill-Fraser and the Australian Women's Weekly ...
Tim Ellis SC. Pk: Yacht at the centre ...
20.06.15 6:45 3111
595 comments
Dear Editor,
Apparently an article in the Australian Women's Weekly is soon to be published concerning Ms Neill-Fraser. I do not know how balanced it might be.
I was asked to comment and I enclose below an email string between the author and me; it might be interesting to see how much actually makes it to the article.
Regards,
Tim Ellis
The emails in order ...
From Tim Ellis
Sent: Tuesday, 28 April 2015 10:17 AM
Subject
Dear Mr Horsburgh,
My former PA has passed on your request for contact. I have not commented publicly on this matter before as I was a prosecutor, but will consider some limited contribution, perhaps just background correction if given the opportunity. If you care to tell me via email what you would like consideration of comment on, I will reply. I trust you are aware the trial transcript is available on the Tasmanian Times Website ( it does not contain interviews of Neill-Fraser by Police and the body of some agreed statements and facts however ), as is a link to the Court of Criminal Appeal judgment, also available on Auslii [sic] website. Both are necessary checks on the Neill-Fraser supporters' claims.
Yours faithfully,
Tim Ellis
On Mon, May 4, 2015 at 10:08 PM, Horsburgh, Susan wrote:
Dear Mr Ellis,
As you know, Neill-Fraser's supports have many concerns about her case, and a balanced article requires the opposing view. Could you please comment on the questions below?
What is your reaction to news that Sue Neill-Fraser will push to have her case returned to court via the proposed right-to-appeal legislation?
What, in your opinion, was the most damning evidence against her?
What was your wrench theory based on?
You suggested in your opening address that there were "some indications of blood" in the dinghy. Was that a reasonable statement when confirmatory tests for blood were negative?
In your closing address you mentioned Neill-Fraser's "involvement with the disappearing young Mr O'Day". What was that based on?
Why was Phillip Triffett put up as a credible witness considering his history of death threats to Neill-Fraser and Bob Chappell years earlier? Why wasn't the court told this?
Do you think the homeless people on the foreshore the night of Bob Chappell's disappearance were properly investigated?
In your opinion, is it possible that Neill-Fraser is innocent?
If you could please get back to me by the end of tomorrow (May 5), it would be most appreciated.
Yours sincerely,
Susan Horsburgh
On Tue, May 5, 2015 at 12:15 PM, Tim Ellis wrote:
Dear Ms Horsburgh,
In answer to your questions;
I will be interested to see in full the "fresh and compelling evidence" to be produced if the legislation proceeds. There is said to be such evidence by Ms Etter, and a report from Victorian Police Forensic Service Department is often mentioned as being that (eg by the film critic writing in the Australian of the 25th March 2015) but so far as I am aware only excerpts from it have been released publicly, not the full report, which is somewhat odd. Perhaps you will be given a full and unedited copy without limitation of its use, so as a responsible and ethical journalist you will be able to validate that what is claimed for it is indeed the case.
In a circumstantial case each juror is entitled to give such weight and importance to each circumstance as they believe it is entitled. For example, one juror might think it most important that Ms Neill-Fraser says she tied up the vessel's tender at the Royal Hobart Yacht Club but after Mr Chappell's disappearance it was found not tied up, but with its rope in the tender, on the beach where it was often launched ( and indeed where it had been launched by Mr Chappell and Ms Neill-Fraser on the morning before the discovery of Mr Chappell's disappearance ) that being to where it could not have drifted had it simply become loose from its moorings. That juror might think that the chances of someone unconnected to the Four Winds stealing that very tender from the Yacht Club and using it on the very night Mr Chappell disappeared could not possibly be a coincidence and coupled with other evidence was the most important for that juror. Other jurors might think the fact that Ms Neill-Fraser changed her story of where she was on the afternoon and evening previously, usually in response to being confronted with further evidence, to be of more importance ( I trust you are aware that originally she said she left Mr Chappell on board following an argument in the afternoon, tied up the tender and then drove to Bunnings where she stayed browsing until it was starting to get dark, then went home where she stayed all night; when told Bunnings closed early that evening she said she might not have been there for the "hours" she had claimed but repeated she did not leave home after returning from Bunnings; later still when told that security cameras failed to show her at Bunnings at all she said she may have been mistaken about being there; later when told a car similar to hers had been photographed in Sandy Bay that evening she told some people, but not initially the Police, that she drove down to Marrieville Esplanade in the night, looked out to where the Four Wings was moored, and drove home. In a later interview with Police she said she tied up the tender in the afternoon and walked home to West Hobart, she said she could not remember where she had parked, or whether it was daylight or dark. She said she walked down to the car that evening, realised she didn't have her keys, walked back home and back again after having gone down to the beach and seen homeless persons around a fire near the sheds, but it was too dark to see the yacht. She then drove home, she said. ) Other jurors might have found her inability to explain why a call was made from her home – she being the only person there – at 3.08am on the 27th January ( the day the Four Winds was found sinking ) to *10#, the function of such a call being to retrieve the number of the last unanswered call to the landline to be the most damning evidence, coupled of course with other evidence. Other jurors may have considered the unchallenged expert evidence that only someone with intimate knowledge of the Four Winds ( which Ms Neill-Fraser had ) would have known the location of the seacock under the flooring in the for'ard part of the yacht, and which served no apparent purpose, which had been opened to let the seawater in as well as cutting a pipe to the same end. There was a wealth of evidence any or all of which might have reasonably been considered by all or any of the jurors to have been the most damning. It is their opinion as those who have heard and seen all the evidence and who are charged with making the decision which is important, not mine. A balance article of the kind you intend to write would reflect that wealth of evidence, as I trust you will.
I am disturbed that you use the phrase "your wrench theory". I never advanced any such "theory". I will refer you to the transcript, the availability of which I have previously alerted you to, but first I point out that it was never the Crown case and it was not and is not essential to the valid conviction of Ms Neill-Fraser that the prosecution produce a murder weapon or prove a manner of death. The position in this respect is no different to the conviction of Bradley Murdoch for the murder of Peter Falconio, a wholly circumstantial case with no weapon or manner of death claimed or proven, and a case on which I believe the Womens Weekly has run articles but never questioned the validity of the conviction.
The transcript is, I have advised in earlier correspondence, at the Tasmanian Times website:
the Court of Criminal Appeal decision is here:
am using page numbers from the transcript:
At 1197 Ms Neill-Fraser raised in cross-examination that wrenches had gone missing from the yacht and claimed that was while it was at Goodwood, well after Ms Chappell's disappearance. She had not previously told Police that.
At 1297, I suggested wrenches were on her mind throughout the trial "because it was a wrench wasn't it, or a similar sort of tool with which you struck Mr Chappell from behind and killed him?"
That was all that was put in cross-examination hardly a "wrench theory".
In address at 1392 and 1407 I linked the claim she had made with missing wrenches with her description of what was happening between her and Mr Chappell on what on her own version was the last time she saw him alive – he was working on an electrical panel and "giving her the usual harangue" and "snapping at me like a crocodile", they had a row, she was working on the washing machine and she was "in the way of the tools" and they were "her tools too".
There was no "wrench theory" formulated or advanced. From the opening I told the jury the Crown did not set out to prove exactly how or with what Mr Chappell was killed, but that he was killed by Ms Neill-Fraser. It was no part of the jury's function to make a finding that a wrench or any other particular weapon was used. At 1392-3 I suggested that the fact that the body was missing pointed to Ms Neill-Fraser rather than a stranger ( as the jury knew that where Mr Chappell was working a stranger would have to come down a ladder directly in front of him to reach him; carpet tiles from that exact spot were proved to have been removed and, like the body, never found ). The complete passage is:
"But here comes the – here is perhaps the significance of there being no body found. Why, if this is a complete stranger to Mr Chappell and a complete stranger to the boat, would there be no body left on board? That doesn't make sense, does it. But if in fact it was someone who was closely connected to the boat, closely connected to Mr Chappell, and who would be able to be behind him without raising his attention because they're known to be in that space, where there's only one way in. She's walking backwards and forwards and delivers blow – a blow or blows, or maybe stabs him with a screwdriver, I don't know, he doesn't look round, and so the body doesn't have any marks of what you'd expect if someone had come down there, a stranger, intent on doing him harm, the body I suggest would have marks consistent only with being delivered by someone who he knew to be there, who he knew and expected to be behind him."
Please note the phrase "a blow or blows, or maybe stabs him with a screwdriver, I don't know".
At 1392 and twice, briefly at 1407 are the only mention I made of wrenches in closing and I have given you the only reference I made in the cross-examination.
I trust you can see that the phrase you have chosen to use, "your wrench theory" is quite wrong.
I have a prior engagement now and I am becoming apprehensive that the length of my eventual reply will prove too much for Gmail. I will send this now and the rest if I am able to complete it in the disappointingly short time you have given me to do so.
Yours sincerely,
Time Ellis
On Tue, May 5, 2015 at 5:09 PM, Tim Ellis wrote:
Dear Ms Horsburgh,
Before I resume, might I refer you to Para 148 of the Court of Criminal Appeal decision as to the phrase "your wrench theory"?
To resume :
To have left it there as you have "quoted" might not have been a reasonable statement, however the full statement at 71, 15-30 of the transcript is:
"But the tender itself was also subjected to a screening test for blood called luminol, and what happens with luminol is you put it – you put it on objects where there might have been blood and turn off the lights and it gets lum – it goes luminous in the presence of blood, and so that reacted quite strongly, the tender and the inside of the tender for the presence of blood, and swabs taken from the tender were found to match, with a high degree of probability, Mr Chappell's DNA. But on the other hand another screening agent for blood taken on that tender showed negative and one of the forensic scientists looked under the microscope to try and find some – what they look for is red/brown indications of blood and couldn't find any, so some indications of blood, his DNA, but others – others, no."
The evidence was presented the same way – completely honestly and openly. These tests had been done, with that result. In these CSI days the jury expects to be told in full of all tests and examinations carried out, and this jury was. Never did I suggest there was proven to have been blood in the tender. It was never claimed on appeal to the Court of Criminal Appeal or for Special Leave to the High Court that I did nor that I could be understood to have done so, nor was it claimed there or at trial that the evidence was objectionable. Your selection of one phrase, out of context and without acknowledging that the context gives a different meaning is exactly what the Neill-Fraser supporters have been doing, and I must say I wonder if you have checked the primary sources of their claims before referring them to me.
The whole question of whether there was blood in the tender is not one of crucial relevance to conviction in any event. The evidence necessary to the conviction of Ms Neill-Fraser might be said to fall broadly into two parts – that proving Mr Chappell is dead, having been murdered being part 1 and that proving Ms Neill-Fraser murdered him being part 2. To prove how the body was disposed of is no part of the necessary case of murder; blood in the tender might have arisen if the body was placed there, not wrapped say in a spare sail or other material, and bled or blood was transferred. Those events if they occurred are only events after the murder and therefore not directly relevant to prove how or where the body was disposed of. The absence of Mr Chappell's body from the immediate vicinity of the yacht's mooring was a fact proven by evidence of searching and of course it was necessary to present to the jury evidence of the searches made in that respect as part of the evidence that Mr Chappell was dead. How the body came to be somewhere else and where that somewhere else was is not something the Crown was obliged or attempted to prove.
Again, I refer you to the transcript. The ONLY reference is at 1394, a fleeting reference but what it picked up on is something Ms Neill-Fraser had herself volunteered in a previous interview or statutory declaration to Police ( not contained in the transcript but shown to and given to the jury. I am at a disadvantage not presently having access to those documents, but I am sure a request under the Right to Information Act will give you the exact context and reference if you are interested in such accuracy. If Ms Etter is co operating with you, she will have it too ) namely that she had been involved in some way as a peripheral witness in the police investigation of the disappearance of a young man named O'Day, son of a well known private investigator, last seen in the vicinity of the Tasman Bridge. It was thought likely but not certain he had suicided but no-one saw him do so and his body was never recovered. The jury could not conceivably have taken my fleeting comment in any other way but that she knew from that involvement that doubt can remain where a body is not recovered. There was no other mention of the matter at trial, and it could be understood in no other way. It was clearly taken that way too by Ms Neill-Fraser and her defence team, as there was no objection or request for clarification or correction at trial. Her very experienced legal team on appeal made no point of this as they knew there was none to be made. Again, this is a case of her supporters trawling the transcript for phrases to be taken out of context.
Phillip Triffett was put up as a witness but that he had previously some traffic convictions and a possession of property charge ( although not conviction for that ) which might adversely reflect on his credit was disclosed to defence and the jury. When it emerged after he gave his evidence that in one of his police involvements he inquired as to possible advantage to himself in the evidence he could give, a fact unknown to me previously, I had additional statements of Police who had been involved taken and disclosed to defence and recalled him so he could be further cross-examined.
Your question presumes that I had reliable admissible evidence or there was evidence other than what Ms Neill-Fraser had asserted in interview ( the exact detail of which I do not now recall except that it was exceedingly bitter and played to the jury – see transcript 1388/35) after she learned Mr Triffett had spoken to Police about her. I did not have such evidence and no such evidence was ever supplied to me. Mr Triffett's former partner had made some kind of statement which may have touched on this, I do not recall, but she was unable to be called and unable to be a reliable witness for the medical reasons given to the jury in certificate form at 563 of the transcript.
Mr Triffett was called as a witness and it was not suggested to him by Ms Neill-Fraser's lawyer, a Senior Counsel, that he made a threat to kill her or Mr Chappell. Your question offensively suggests I was aware of such information and hid it or didn't disclose it when the fact is Ms Neill-Fraser by her lawyers was perfectly free to put such allegations to him and to call evidence in support but did neither.
The question of homeless people on the foreshore never arose for investigation until more than two weeks after Mr Chappell's disappearance when it was mentioned for the first time by Ms Neill-Fraser in the course of admitting to a journalist that which she had previously and repeatedly dishonestly denied to police, namely that she went to the foreshore that evening.
A witness who had been there, Mr Hughes, said he was at the rowing sheds, where Ms Neill-Fraser asserted she saw "homeless people" around a fire, for twenty minutes on the same night and around the same time and saw no-one (379/9) except a female figure in an inflatable dinghy with a motor come from the Royal Yacht Club towards where the Four Seasons [sic] was moored.
No witness on the scene reported signs of a recent fire at the foreshore the next day.
Police made all proper, available and reasonable enquiries as to the location of the "homeless people" only Ms Neill-Fraser belatedly claimed to have seen. As you ask the question I wonder what more you say they could have done but did not do.
I believe Ms Neill-Fraser was properly convicted on the evidence at trial, and her appeal was properly and unanimously rejected and her application for Special Leave to Appeal to the High Court was properly rejected.
I trust this has been of assistance in presenting a "balanced article"; might I suggest that balance requires an understanding of the whole of the evidence against Ms Neill-Fraser?
Yours sincerely,
T J Ellis SC
- AGLC
- Etter v Legal Profession Board of Tasmania [2022] TASSC 11
- Case
- [2022] TASSC 11
- Decision Date
CaseChat Overview and Summary
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.