31 August 2021

Mr GAFFNEY (Mersey) - Thank you Mr President. This is my first adjournment speech in my thirteenth year of representing Tasmanians in this place - such is the very seriousness of this issue, which I believe deserves the attention of the members in this Chamber and delivered to the Tasmanian people recorded on video and accessed via Hansard. I also acknowledge a number of the advocates for and supporters of Sue Neill-Fraser who are present in the Chamber today.

My intentions are first to bring us together to right a wrong and secondly to have the Attorney-General join us in that quest. Many of us would be aware that Sue Neill-Fraser has spent 12 years in prison for the murder of her partner, Bob Chappell, on the Four Winds yacht on Australia Day 2009. Our community has been divided about her guilt, some being certain that her guilt was well established, others not giving up the fight to clear her name.

This case will not rest and for good reason. We have all received the recently published papers by Hugh Selby and Barbara Etter, sent to us by the former premier and former attorney-general, Lara Giddings. None of us can ignore these papers establish a miscarriage of justice now that we are aware of the following issues:

(1) An inadequate investigation and tunnel vision by police which led to obvious lines of inquiry being ignored or barely followed up.

(2) Police failure to provide to the Office of the Director of Public Prosecutions (the ODPP) the full disclosure of all relevant information.

(3) Failures within the ODPP to ensure that their director and the defence received all of the material supplied by the police.

(4) False evidence being put before the jury.

(5) A conflict of interest within the ODPP that personal interests had interfered with the proper conduct of the case.

(6) An acquiescence in delay that entailed that Ms Neill-Fraser's application for leave to appeal took over three years.

(7) Further delays so that the prisoner then waited almost another two years to have her appeal heard.

(8) Despite several sound appeal grounds being available, the March appeal was run on one issue only for which the only witness, a young woman, was not adequately prepared, managed or supported. During cross-examination her evidence was abandoned by those who had intended to rely upon it.

(9) The appeal court being misled in final submissions by an incorrect answer from the DPP about the significance of one of the sightings of another dinghy, a grey dinghy, alongside the yacht at a critical time.

Central to the case are the sworn admissions in 2019 of that young woman that she was on the yacht that Australia Day with named males and that Bob Chappell was assaulted. She also stated that Ms Neill-Fraser was not there. Supporting her admission that she vomited while on the deck of the yacht, is a large DNA sample on the deck which was matched to her in March 2010, seven months after Ms Neill-Fraser's arrest. At trial, this DNA was said by the prosecution to be secondary transfer and a red herring and not left there by the young woman. However, it is clear that she left it. It is also clear that in 2010 one of our local forensic scientists thought so too.

Tragically and inexplicably, the young woman was never offered immunity from prosecution. This is quite extraordinary as it must have hampered any proper inquiries about those males she named.

So far, attempts to get the Attorney-General, Ms Elise Archer, to involve herself in this case, have been rebuffed with the reasons that this is before the courts and that such involvement would offend separation of powers. It is true we cannot speak of matters before the court and I am being careful not to but we can speak of matters not before the court, which are the issues I highlight tonight and that are so well documented in the Etter Selby papers.

Issues that were not presented at this year's appeal in early March include:

(1) Neither the prosecutor nor the defence knew that key evidence allegedly showing the yacht's dinghy, a white with blue trim Zodiac - and hence Sue Neill-Fraser to be at the yacht at 5 p.m. - was false. However, a police officer and a DPP officer, both at the trial, knew otherwise. The supposed presence of that dinghy supported the prosecution case; its absence supported the defence.

(2) Once that false evidence is removed, the evidence of other witnesses who saw another dinghy at the yacht corroborates the young woman's sworn admission of having been on the yacht with named males.

(3) A forensic officer misled the court as to the presence of the blood in the Four Winds dinghy and countenanced a highly misleading photograph, when the prosecutor knew that there was no evidence or blood at all. The prosecutor admitted in 2017 he was ignorant of these falsities and he did not understand the basic scientific principles.

The defence had the necessary laboratory reports, but failed to understand them. Blood in the dinghy supported the prosecution theory that Neill-Fraser disposed of the body in the river using that dinghy - no blood and no support for the body disposal theory.

(4) The prosecution alleged the accused had used the winches and ropes on the yacht to get the body from below so she could place it into the dinghy, but an expert report explains how the relevant winch could not function as required to substantiate this theory.

(5) A red jacket was found onshore. The police failed to bag and tag it and then lost it for several days, finding it in a police car park. The jury was not told about those problems. Ms Neill-Fraser’s DNA and that of several other unidentified persons was found on the jacket. At the time of testing in early 2009, the young woman’s DNA was not in the database. There are no public results for those unidentified persons’ DNA being tested with advanced DNA technology or subsequently checked against the young woman or those she has named. Repeated requests this year that it be checked or any results provided have been refused.

(6) A prosecution lawyer who, it seems, had an active role regarding both the blood in the dinghy and the lack of disclosure at the trial to the prosecution and defence about the false sighting of the Four Winds dinghy, then played an active role both in resisting Ms Neill-Fraser’s quest to be allowed a fresh appeal and in the prosecution case, presented the recent appeal. This is a clear conflict of interest between their duty as a prosecutor and a personal interest to prevent their seeming shortcomings at trial being revealed.

(7) There is now evidence police chose not to properly investigate the incidents of break-ins to yachts, they failed to check critical mobile phone records and they failed to follow up reports about the young woman and her known associates. All those with responsibility have failed to act. They first received written advice about some of these shortcomings in August of 2019. They resolutely ignored it. Likewise, they have shut their eyes to the latest information. These past few weeks we have all had the benefit of a full exposé, the results of years of RTI requests, the seeking of expert advice and detailed forensic analysis.

Our courts have been misled. A woman has been incarcerated for 12 years as a consequence. The second limb of the Attorney-General’s refusal thus far to take action is the claim that it would breach the separation of powers. The Attorney-General is the First Law Officer. She has a duty to protect all Tasmanians and in light of the information that has been so expertly gathered and collated in the Etter-Selby papers, she must use her common law right to go to the court immediately and seek its permission to have this material presented to the court with the opposing arguments, so that the court is properly informed of the issues should they be before it.

It is my understanding the Attorney-General has been asked to take the case from the DPP under her common law power, so as to seek to maintain public confidence in the courts by seeking leave to open the appeal. It appears there are examples of the Attorney-General intervening when she is inclined to do so.

In order for this House to be better informed I request the Government Leader arrange a briefing from Ms Barbara Etter, APM, former senior police officer, inaugural CEO of the Tasmanian Integrity Commission and former solicitor for Sue Neill-Fraser, and former attorney-general and premier, Lara Giddings, for every member of this place as soon as possible, so we can fully grasp the extent of the wrongs.

I would like each and every member to consider, what if Sue Neill-Fraser was a member of your family, a friend or a person you represented in your electorate? I raise this matter here in this place as this place is here to protect the rights of all Tasmanians, to ensure proper process because I believe we must put this right for now and into the future.

Mr President, I seek leave to table the associated papers.