The misconduct primarily concerned four complaints advanced by Ms Etter against the then-acting Director of Public Prosecutions (DPP) Daryl Coates SC, former DPP Timothy Ellis SC, and a barrister and a solicitor working with the board. For the latter two, the court was satisfied that the complaints were “motivated by a desire to pressure the board” into dismissing them and dismissing a complaint against her.

However, casting a broad overview of the applications against Ms Etter, the court said there was a failure to demonstrate a general lack of competence. While there were “episodes of misguided thinking and rigid thought process” that demonstrates a lack of insight into her failings, the board did not prove all particulars.

“The making of a complaint against a legal practitioner is a serious step, particularly if the complainant is also a legal practitioner,” the court found. “The procedure should not be used as a tactic intended to improve the position of the complainant in a dispute or a conflict. In substance, without justification, Ms Etter used the complaint process as a means of a counter-attack to the board’s actions against her.”

Complaints against former and current DPPs

The first two complaints arose out of Ms Etter’s work on the Susan Neill-Fraser case. In August 2009, Ms Neill-Fraser was charged with the murder of her partner, Robert Chappell, who had gone missing from his yacht in late January 2009. The trial, which took place in late 2010, resulted in a jury verdict of guilty for Ms Neill-Fraser.

Mr Coates, who made a complaint in 2014 when he was then only acting as DPP, claimed that Ms Etter had made “false statements” to the media and in a blog post about evidence in the case. The issue concerned a “glowing blue” substance shown in a picture to the jury, which Ms Etter claimed was “told” to them as being blood by the prosecution when she claimed it was in fact the testing agent luminol.

Mr Coates’ complaint, which served as one of the board’s applications in the recent Supreme Court trial, was dismissed. The court found that the assertion the photo of areas glowing blue were prejudicial “could not amount to misconduct” and that it was merely an assertion of a photo that was capable of creating a misleading impression.

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“This is one of those situations in which it was reasonable for opposing protagonists to advance their respective positions and criticise the opposition. However, given the existence of a reasonable basis for the position taken by Ms Etter, it was not appropriate for Mr Coates to assert that Ms Etter was deliberately misleading the situation with respect to the luminol, or that she was ‘intentionally speaking a falsehood’,” the judgment read on its reason for dismissing the complaint.

However, Ms Etter’s later complaint about Mr Coates that he had “failed to act in a professional, competent and diligent manner” was found to have no basis. Ms Etter was also in error for asserting there was “no proper evidence” to support Mr Coates’ allegations that the statements by Ms Etter were misleading.

Ms Etter also made a complaint about Mr Ellis that he, in media articles, “failed to both describe the luminol evidence at the 2010 trial in a complete, fair and objective way, and to outline the way in which he led such evidence at trial”. Ms Etter alleged that this misled the general public about the nature of the evidence.

The court found that it was not incumbent on Mr Ellis to discuss and analyse the evidence and that the broad assertions were “reasonably based and argued”. The complaint by Ms Etter on Mr Ellis’ conduct, it ultimately found, was misconceived.

“I am satisfied that, faced with the rejection of her detailed defence to the Coates complaint, and a reference to that complaint to the Supreme Court, Ms Etter made her complaint against Mr Coates in an endeavour to pressure the board into summarily dismissing that complaint,” the Supreme Court found, adding: “That was her primary motivation, as it was in making her complaint against Mr Ellis.”

Complaints against barrister and solicitor

Two other complaints were made against barrister Kate Cuthbertson and solicitor Emily Warner who were retained by the board to investigate Ms Etter’s conduct in a separate matter. This matter concerned Rita Greer, who the coroner had found died by self-inflicted wounds. Ms Greer’s daughter refuted this, claimed her mother had been murdered, and retained Ms Etter to assist with reopening the investigation.

The coroner again found Ms Greer died by self-inflicted wounds and, thereafter, her son Robert Greer made a complaint to the board about Ms Etter’s conduct. The coroner also made observations that were critical of Ms Etter’s behaviour, particularly that she had attempted to influence the decision to reopen the case.

The board wrote to Ms Etter in connection with those comments and claimed that she had made “serious and unfounded allegations” against several persons with no supporting evidence and that she had failed to act in a “professional, competent and diligent manner”. Ms Cuthbertson was retained to investigate.

Amid Ms Cuthbertson’s investigation, Ms Etter made a complaint to the board that the barrister had, among other allegations, drafted particulars that lacked clarity, and that were “baseless, speculative and/or unfounded”. This complaint was dismissed.

“Ms Etter had no basis for making any of the allegations against Ms Cuthbertson. In particular, there was no basis to assert that Ms Cuthbertson had been guilty of professional misconduct and/or unsatisfactory professional conduct.

“Further, it is clear from Ms Etter’s evidence that she endeavoured to use the complaint process as a means of fighting back against the board and the legal practitioners involved with the board,” the judgment read. “The same conclusion is inevitable with respect to Ms Etter’s complaint against Ms Warner.”

Ms Warner, who was retained by the board in August 2017, to investigate the Greer complaint further, contacted Ms Etter to request various materials. In brief, Ms Etter declined to hand over the files and lengthy court proceedings followed, which ended in the Full Court’s decision that the documents be handed over to Ms Warner.

In October 2017, Ms Etter made a complaint alleging that Ms Warner “failed to act in a professional, competent and diligent manner” and, in particular, Ms Warner had “failed to properly consider my submissions on various matters”.

Ms Etter also alleged during cross-examination that Ms Warner was not impartial because she had been charged with investigating the Greer complaint and was also the officer appointed to investigate the allegations around the luminol issue.

“In later evidence given under cross-examination, Ms Etter again prevaricated and clearly demonstrated an illogicality of thought and a willingness to make serious allegations against a legal practitioner without even a scintilla of material upon which to advance such allegations,” the Supreme Court judgment set out.

“I am satisfied that the complaints against Ms Cuthbertson and Ms Warner were similarly motivated by a desire to pressure the board into dismissing Ms Cuthbertson and Ms Warner, and summarily dismissing the Greer complaint.”

With respect to the Greer complaint – the third of the applications advanced by the board for the most recent hearing – the Supreme Court approved a guilty finding on the basis of the key particular of the complaint, namely that she “improperly attempted to influence the coroner’s decision”. Other particulars were not proven.

The entire judgment can be accessed on AustLII and JADE: Etter v Legal Profession Board of Tasmania [2022] TASSC 11 (1 March 2022).