Do not tamper with legal process
Meddling with the judicial process can lead to disaster, warns Peter Patmore
THE media circus and well-orchestrated public pressure by supporters of Susan Neill-Fraser is a good reason to reflect on why it is ultimately up to the courts to decide her guilt or innocence — not members of Parliament subjected to pressure and lobbying.
The basic principle behind this is the concept of separation of powers between the legislature and the judiciary, essentially meaning that Parliament makes laws, but it is then up to the courts to ensure that the laws are followed.
To quickly summarise the saga so far: NEILL-FRASER was charged with murdering her partner Bob Chappell. SHE was found guilty in the Supreme Court by 12 jurors, who sat through the evidence. HER appeal was dismissed by the Court of Criminal Appeal. THE Coroner’s investigation reviewed all the then available evidence and supported the court’s findings. THE High Court rejected her leave to appeal. PARLIAMENT then passed an amendment to the Criminal Code giving the right for a convicted person to seek a retrial on the basis of “fresh and compelling evidence’’.
NEILL-FRASER now awaits the decision of Justice Brett of the Supreme Court as to whether or not there is fresh evidence to justify a retrial. The case has become a
cause celebre for the wellmeaning and conspiracy theorists alike (many of whom never sat through the trial, or read the evidence and decisions) who ardently believe her innocence and continue agitating for her release.
I have no doubt that if the court rules against her this will not be the end of the matter and further pressure will be applied to MPs to intervene, possibly moving to the next stage of petitioning the Attorney-General and Governor to exercise the little-used Royal Prerogative of Mercy to grant Neill-Fraser a pardon. This should not happen. For a salutary lesson in the dangers of meddling in the judicial process we need look no further than how a past government interfered with the judicial process for Rory Jack Thompson, the so-called “mad scientist’’.
Thompson killed his wife and cut his wife’s body into pieces, many of which he flushed down the toilet. The very nature of the murder meant that the trial was the subject of heavy publicity. He became a person reviled and an example of the ultimate results of domestic violence.
He was found not guilty by reason of insanity, and was confined to a secure mental health facility at Risdon Prison. Six years later the Mental Health Review Tribunal recommended his release on the grounds he was no longer insane and that there was little chance of his reoffending.
As Attorney-General I took to Cabinet a recommendation that the tribunal’s decision be accepted. Although totally unqualified in such matters, members were too concerned about community backlash and how it would look “politically’’ to agree with the tribunal. It was also obvious that to some their disgust at the crime prevailed over the objectivity required.
As a result a tribunal psychiatrist resigned on the basis that he would not remain a member of a tribunal that was party to an injustice. Even more disturbing was the fact that other murderers were being released partly because, unlike Thompson, they lacked a high profile.
I formed the view that this was a breach of the separation of powers and an interference with legal process.
After two failed attempts to have the tribunal’s recommendations accepted I then drafted the Criminal Justice (Mental Impairment) Act that took such decisionmaking powers out of the hands of the government of the day and returned it to the courts. This proposal was accepted by Cabinet and became law.
However, while this took place Thompson remained in prison unaware of this proposal. He came to the conclusion he would never be
He became a political prisoner, not for his political views but because of the politics and publicity that would surround his release
released, made an unsuccessful escape attempt, and ultimately committed suicide in prison.
While many would have no sympathy for his demise, it does not avoid the uncomfortable fact that Thompson remained in prison partly because of political considerations.
In a bizarre manner he became a political prisoner, not for his political views but because of the politics and publicity that would surround his release. This firmly convinced me that the Executive should not meddle in judicial functions.
Similarly, in the case of Neill-Fraser, if the court finds that there is fresh or compelling evidence I will accept it because the decision will be made on the objective basis of evidence presented. However, if the court finds there are no grounds for a retrial I will also accept that she has been rightly found guilty.
What I will not accept are further attempts by her supporters, no matter how strongly or honestly held, to interfere in the judicial process by attempting to pressure members of Parliament to somehow have her released in opposition to valid evidencebased judicial decisions.
Dr Peter Patmore was Labor Attorney-General from 1989-92 and 1999-2002. He is past co-ordinator and currently a lecturer at the University of Tasmania’s Law Faculty in professional development for Australian and New Zealand parliamentary clerks.