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STATE OF TASMANIA v STEPHEN JOHN GLEESON 6 JUNE 2018

COMMENTS ON PASSING SENTENCE           MARSHALL AJ


Mr Gleeson, you have pleaded guilty to two counts of perverting the course of justice.  The background to your offending is as follows. Between 26 and 27 January 2009, Mr Robert Chappell was murdered on a yacht which was moored off Short Beach in Sandy Bay.  In 2010 Ms Susan Neill-Fraser was convicted of his murder.  In 2012, the Court of Criminal Appeal dismissed Ms Neil-Fraser’s appeal against her conviction, and the High Court refused special leave to appeal.

In 2015, Ms Neill-Fraser filed an application seeking leave to lodge a second appeal. A significant issue at the trial in 2009 concerned the presence of DNA on the yacht from a homeless 15-year old girl. Ms Neill-Fraser’s counsel raised the possibility that the girl had been on the yacht, and so the jury should have a reasonable doubt about Ms Neill-Fraser’s guilt.  Ms Neill-Fraser’s legal team was shown a report from Tasmania Police that suggested that in January 2009, the girl was associating with a 16 year-old boy.

In January 2009, you were living in your car near the rowing sheds beside Short Beach.  On a number of occasions you had spoken to Ms Neill-Fraser and Mr Chappell and helped them launch and retrieve their dinghy.  In late January 2009 you spoke to the police and told them that you were heavily intoxicated on 26 January, and spent most of the day and evening in your vehicle sleeping.  In September 2014 you were arrested in relation to a crime of violence and have been in custody at Risdon Prison since 2014.  When arrested, you brought up the murder of Mr Chappell and said you were asleep in your car on 26 January 2009, and regretted being asleep because, if you were awake, you would have been able to see what had happened.

Between July 2016 and September 2017, you were visited in prison on 14 occasions by various people in connection with the Chappell murder.  At the time Ms Barbara Etter was Ms Neill-Fraser’s solicitor.  You were visited by her and by a Mr Geoffrey Thompson. Mr Thompson is a solicitor with a practising certificate which allows him only to act for clients at a community legal centre.  At the time he did volunteer work for Ms Etter.

On 13 September 2016 Ms Etter took an affidavit from you in which you confirmed your earlier statements that you were intoxicated on the night of 26 January 2009, and slept in your car on your own.  You did not state that you had seen any people that night, or that anyone was in the car with you.

On 8 May 2017 Mr Thompson took a second affidavit from you, although at the time he had been told by Ms Etter he was not authorised by her to work on the Neill-Fraser case.  In your 8 May 2017 affidavit, you said, for the first time, that on 26 January 2009 you were woken up by someone tapping on the window of your car. You said the two people were Adam Yaxley and a girl. You said you let them in your car and cooked them sausages on your gas cooker. You said Mr Yaxley and the girl had talked about breaking into yachts to steal things.  You got back into your car, you said, and went to sleep.  In your affidavit you said that Mr Thompson showed you a photo array, and that you signed the picture which you recognised to be of the girl. You signed your name next to a photograph of the girl. A photoboard containing eight photographs was annexed to your affidavit.  Your affidavit and the photoboard were provided to the Crown and filed in support of Ms Neill-Fraser’s application to lodge a second appeal.

Police received information that Mr Thompson was planning to visit you again to show you a photoboard to identify the person who was in your car with the girl.  You had previously stated that the male in the car was Mr Yaxley, but it was the belief of those working with Ms Neill-Fraser that if you identified the 16-year old boy, that evidence would be compelling evidence on the application for her to lodge a second appeal.  Police obtained a warrant and installed a camera and listening device to record the planned identification procedure.

On 16 June 2017 Mr Thompson visited you.  He showed you two photoboards, each containing eight photographs including of the 16-year old boy.  The first photoboard showed a recent photograph of the boy, while the second showed an older photograph of him. You were not shown any photographs of Mr Yaxley. You believed you were going to be shown photographs of Mr Yaxley so that you could identify him.  Mr Thompson placed the first photoboard in front of you. You initially did not identify any of the photographs.  You were then shown a second photoboard containing photographs from 2009.  You failed to identify anyone again.  Then, Mr Thompson pointed to the 16-year old boy’s photograph on both boards.  You then pointed to the photograph of the boy on the first photoboard and, comparing it to the photograph of the boy on the second board, you said, “This one looks more like him than that one.”  Mr Thompson asked you to sign over the photograph of the boy in the first photoboard, which you did.  You did not identify the boy in the second photoboard, but Mr Thompson pointed to that photograph and said, “That was him there anyway.” You replied, “Was it? I could recognise him for the purpose of getting her out.”  Mr Thompson declined your offer.

You told police you thought Mr Paul Wroe was involved in the murder of Mr Chappell, and that you believed an affidavit was being prepared for you to put to the Court concerning his involvement in the murder.  You told police that, in your discussions with Mr Thompson, you believed your purpose was to identify Mr Yaxley.  The photoboard identification of the 15-year old girl and the 16-year old boy was important evidence in support of Ms Neill-Fraser’s application for leave to lodge a second appeal.  Your identification evidence is the only direct evidence that places the girl near the crime scene on the night of the murder.

On 30 October 2017 you gave evidence before his Honour Brett J on Ms Neill-Fraser’s application to file a second appeal. You identified the girl on the photoboard you had been shown by Mr Thompson.  Under cross-examination you admitted identifying the 16-year old boy when you could not recognise him as the male who was in your car on the night of Australia Day 2009. You admitted that you identified the 16-year old boy and the girl because Mr Thompson had pointed to their photographs.

Your offending is extremely serious. 

You made a false identification for the purpose of seeking a retrial for Ms Neill-Fraser.  You falsely and dishonestly identified a photograph of the 16-year old boy as being a photograph of a person present near Short Beach on the night of 26 January 2009, or early in the morning of 27 January 2009.  The Crown concedes that you were duped by Mr Thompson and you were vulnerable to suggestions by him.  You have expressed remorse for your actions.  You said you made a stupid mistake and you were tricked into doing it, having been under a lot of pressure at the time. You are entitled to the benefit on sentence that is obtained by guilty pleas.  I also take into account that your offending was the result of pressure by others. You are currently serving a custodial sentence for committing an unlawful act intended to cause grievous bodily harm.  Your earliest release date is 30 November 2019.  You are eligible for parole, but have not applied.

You are now 59 years old. A pre-sentence report prepared in relation to your matter by a probation officer recommended that a psychiatric assessment be obtained before a probation order is made.  Such a psychiatric assessment has now been made.  The report stated that you have had previous contact with mental health services in the Hobart region, but none since 2010. Resort to antipsychotic drugs did not prove successful. You have received no antipsychotic medication since 2010. The report showed that you have a long history of problems with alcohol up to your incarceration in 2014.  The report confirms your belief that you were duped into identifying individuals or making statements that certain individuals were with you on Australia Day 2009. The report also states that you had previously been misdiagnosed with schizophrenia, which was later changed to a diagnosis of delusional disorder. This appears to be consistent with your view that you are an ASIO operative. However the report states that this disorder does not explain your more recent offending.  It states that the use of antipsychotics is likely to be unsuccessful and would be resisted by you.  The report recommends a probation order and referral by the probation service to the Community Forensic Mental Health Service for psychological and psychiatric review.  However I consider your offending to be sufficiently serious as to justify a custodial sentence.

The crime of attempting to pervert the course of justice strikes at the wellbeing of society, and has a tendency to subvert our system of justice.  General deterrence demands that a custodial sentence be imposed. You have significant prior convictions which demonstrate a lack of respect for the law.

I convict you on each charge and sentence you to 12 months’ imprisonment. Six months of that term is to be served concurrently with the sentence you are now serving, and the balance is to be cumulative. You are eligible to apply for parole after serving six months of this new sentence.  You are sentenced, as mentioned, in respect of the two charges before the Court.  The first relates to the false identification of the 16-year old boy. The second concerns willingly providing false evidence in your affidavit of 8 May 2017.