Fabrication of Evidence and Institutional Corruption
In an historical account of a trial involving members of the Industrial Workers of the World in Sydney in 1916, Ian Turner contends that there was a complex relationship between the government, the judiciary and the police that involved ‘an unacknowledged agreement’ where ‘law enforcement is based on violence [that] almost necessarily involves malpractice’ and ‘[y]et none of this can be admitted by Government or Bench, because to do so would be to undermine an institution on which the power of judges and politicians depends’.[i]
Chester Porter QC focuses on the presumption of innocence as the fundamental basis of liberty in his book The Conviction of the Innocent.[ii] Porter notes the role played by judicial officers in allowing the practice of the police verbal to flourish: ‘In the past, many, many persons were convicted of serious crimes – including murder – on little other evidence than police verbals. Such cases are, of course, an indictment of our magistrates and judges. There is no doubt that many judicial officers in those days were hopelessly biased in favour of the police force. I have sat in court watching a respectable Sydney businessman give evidence as to how he was brutally bashed by a police officer whom he had offended. I looked at the presiding judge. He was not even looking at the witness who was demonstrating the assault, and of course completely rejected his evidence’.[iii]
The problem with police verbals has to some significant extent been overcome by the use of audio-visual recording of police interrogations. Porter notes that the corruption in the police force can run from the highest to the lowest ranks and that the planting of evidence remains a serious problem. He states:
Unfortunately, police misconduct by way of planting evidence is always on the cards. Thus it was in the case of Arthur Allan Thomas in New Zealand. The report of the Honourable R.L. Taylor (a former Justice of the Supreme Court of New South Wales) and two others found, after a lengthy inquiry in 1980, that Thomas was framed for the murders of David Harvey Crew and Janette Lenore Crew. In the words of the report: “He should never have been charged by the Police. He was charged and convicted because Police manufactured evidence against him, and withheld evidence of value to the defence. The fact that he is imprisoned on the basis of evidence which is false to the knowledge of Police Officers, whose duty it is to uphold the law is an unspeakable outrage.” Among other matters, there was the planting of a cartridge case. Thomas served nine years when he was an innocent man.[iv]
In the case of Thomas, the fabrication of evidence by the planting of a cartridge was an obvious criminal act, the non-disclosure of evidence was a corruption of the process of disclosure and a breach of the dependent relationship between those who enforce and apply their criminal law.
The nexus of corrupt interests between politicians and police is probably more opaque for those directly involved in the administration of justice; unless they are part of it. Such corruption can probably be best seen by those who study the phenomenon, such as journalists. A very good example of the corrupt nexus can be found in journalist David Hickie’s work The Prince and the Premier.[v] He detailed the links in the 1960’s and 1970’s between the Premier of New South Wales, Sir Robert Askin, corrupt senior police and those who ran criminal operations and supplied politicians and police with substantial amounts of illegally acquired money. Hickie describes, amongst other things, the links that Askin had with corrupt police, SP bookmakers and illegal casino operators: ‘Askin’s links with corrupt police allowed those casinos and SP betting to flourish. The corrupt police included Commissioners Norm Allan and Fred Hanson. During the Askin reign the illegal casinos blossomed into the major political scandal of post-war New South Wales. Most importantly, they provided colossal cash flows to the underworld and enabled organised crime to consolidate its powers once and for all . . . . Parliament, the police, public morality – compromised, it was natural for the violence and unsavoury activities of the 1970s and 1980s to evolve largely unhindered’.[vi] Askin was a Liberal Premier who won four elections between 1965 and his retirement in 1975. It is probably reasonable to say that it was against the interests of the corrupt to legalise casinos because it would have interrupted the flow of money to them. Sir Robert Askin died on 9 September 1981and left an estate worth $1.958 million. The Department of Taxation determined that ‘a substantial part of Askin’s estate was generated through undisclosed income from sources other than shares or punting and taxed it accordingly’.[vii] His wife, Lady Askin, inherited most of his estate, which upon her death was valued at $3.725 million.[viii] The reach of organised crime and extent of involvement of professionals and politicians with it was commented on by Justice Athol Randolph Moffitt, President of the NSW Court of Appeal, and Head of the Royal Commission into Organised Crime in NSW Clubs 1973-1974, in the following way: ‘Organised crime has made enormous advances in the past 10 years and is now operating on a large scale across Australia . . . . no group, professional or political, could be free from the likelihood that some of its members were corrupt.’[ix]
Where there is a close nexus between corrupt politicians and the senior ranks of the police force, it is unlikely that the politicians are going to insist the law is enforced and it is against the interests of the corrupt police to investigate their political protectors or their criminal money providers. None of the parties involved in the illegal activities wanted the casinos legalised or the law enforced.
Reliance on the integrity of any part of the justice system as offering a reliable safeguard against corrupt and illegal behaviour is naïve to the point of being reckless. The recent historical examples of police misconduct and political corruption show the need for vigilance and concern about the activities of police and politicians. The need for caution is enhanced where fundamental legal rights safeguards are removed or diminished. Whilst a distinction can be drawn between cases of abuse against an individual and abuse of power more generally, as shown in a number of the examples including the Fitzgerald Report and Wood Royal Commission referred to below, they form part of the same power centered criminality. It occurs because the individuals engaged in the activity have power and think they can use it in a way that ignores the law without unacceptable consequences to them.
Blackburn Royal Commission
A good example of police investigative failure that involved the breaching of the fundamental legal rights of an individual and corruption of procedure is the Blackburn case. On 24 July 1989, Harold James Blackburn, a man of good character and who had no criminal record, was arrested as he left his workplace at the Special Investigation Unit, Federal Attorney-General’s Department in Sydney. In the evening of that day he was paraded by police before television cameras and later charged with 25 crimes, 13 of which involved sexual assaults against women. Blackburn had joined the New South Wales police force in 1947 and was appointed as a Superintendent on 2 January 1985. He was promoted to Officer in Charge of the Scientific Investigation Section. He retired from the police force on 3 May 1988 and was working with the War Crimes Commission at the time of his arrest.
On 11 October 1989, in the Local Court, the Director of Public Prosecutions offered no evidence and the Magistrate discharged Mr Blackburn on all charges. On 14 October 1989, the Premier of New South Wales announced that there would a Royal Commission established to inquire into the arrest and charging of Mr Blackburn and the withdrawal of the charges. Justice JA Lee was appointed Royal Commissioner. He examined the investigation undertaken by the police and highlighted points where the evidence was inappropriately gathered. His findings about the reasons why the police charged Blackburn are relevant for the purpose of providing an example of corrupt behaviour. One of the terms of reference was, ‘Whether any person who was involved in the investigation, arrest, charging, prosecution, discontinuance of prosecution . . . acted out of any improper motive.’ Justice Lee found that there was evidence showing misconduct, deceit, fabrication and suppression of evidence that could be attributed to an improper motive on the part of some investigating police. He stated, inter alia, ‘One sees incompetence, gross at times, slip shod practices, deceitfulness, lying and, above all else, an attitude that accepts evidence blindly, not objectively but because on its face it might implicate the suspect….’[x]
Mr Blackburn was probably fortunate in that he held a high profile position and was a person of unblemished character which resulted in people with influence taking an interest in his case. The vast majority of people charged with criminal offences, even when they are withdrawn, do not receive the benefits of Royal Commission investigation. It is not unusual for charges to be withdrawn against an accused person because there is no evidence or insufficient evidence, even if the accused person has spent a considerable amount of time in gaol.[xi] It is also not uncommon for individuals to have been convicted of crimes they did not commit, because they were inappropriately targeted by the police. The traditional criminal justice system at least offers some hope for people who are wrongly convicted to get their conviction overturned on appeal. There is also a greater potential for people to have charges withdrawn where, upon disclosure of the prosecution case, it is found that they have no evidence or insufficient evidence. The charging and prosecution procedures involve not just police, lawyers and judges but also public scrutiny through open courts and reporting of cases.
Probably the clearest example of a police force that engaged in corrupt practices along with a Premier who controlled it was exposed in the Fitzgerald Report.[xii] It is an example of a nexus of political and police corruption on a very broad scale. On 1 November 1986, Sir Johannes Bjelke-Petersen was re-elected as leader of the National Party Government in Queensland. Shortly after his election he began campaigning to enter Federal politics. The control of the government was left in the hands of the Deputy Premier William Gunn when the Premier attempted to enter the federal parliament. In December and January 1987, the Courier Mail newspaper published a number of articles about police inactivity concerning prostitution and gambling. The articles were written by the journalist Philip Dickie. On 11 May 1987 the Australian Broadcasting Corporation’s 4 Corners aired a documentary called the ‘Moonlight State’ compiled by journalist Christopher Masters. The work of Dickie and Masters was instrumental in exposing police corruption. The day after the broadcast of the ‘Moonlight State’, Acting Premier Gunn announced that there would be an inquiry. The inquiry was not given the status of a Royal Commission and the Chairman of the Inquiry was appointed by Order in Council. The Chairman of the Inquiry Tony Fitzgerald noted, ‘The general expectation was that the inquiry would be brief and ineffectual and was primarily a device to ease the political pressure on the government’.[xiii] The expectation was not to be fulfilled. The Commission of Inquiry’s terms of reference were greatly expanded. Fitzgerald commented that the Inquiry ‘began by pulling a few threads at the frayed edges of society. To general alarm, sections of the fabric began to unravel’.[xiv]
The Inquiry produced extensive evidence of police corruption and links between corrupt police and politicians. The government of the day and its appointed Police Commissioners engaged in similar activities to those typical of the Askin years in New South Wales. The difference was that a Commission of Inquiry had been established in the absence of the Premier, and it exposed in a formal way extensive corruption. The Inquiry’s findings can be summarised from the words of its report under the heading of ‘Police Misconduct in the 1980’s’. Fitzgerald stated:
In the last decade, vice in Brisbane increased and became more organized, organized yndicates plainly became involved, some with members with serious criminal records, and activities were expanded in other areas of criminality, including illegal drugs, violence, extortion and arson. Various ethnic communities became involved through the misconduct of some of their members. Police corruption grew with the additional funds available for bribery.
Much the same pattern developed outside Brisbane, especially in tourist areas such as the Gold Coast, where vice, drugs and police corruption are all grave social problems, with the same organised criminal syndicates and their associates involved. . . . .
Not all police officers stationed in the sections of the Police Force or locations where there has been widespread misconduct have participated, but most, if not all, have been aware of what was occurring and have acquiesced for one reason or another, some less culpably than others.[xv]
Fitzgerald exposed extensive corruption but by no means all of it. He found ‘it ought not to be thought that the Inquiry has exposed all or even most of the misconduct which has occurred. It most certainly has not. Other material held by the Commission makes it clear that only a small number of the guilty have been exposed’.[xvi] The type of activities he noted that were available to police officers in the criminal justice system included: ‘manufacture or falsification of evidence; interference with evidence and other material, including loss and destruction of records; intimidation and suborning of witnesses; obtaining admissions by threats or inducements; and obstruction of investigations’.[xvii]
The police, according to Fitzgerald, engaged in corrupt activities that included stealing forfeited property, accepting money, property and sexual favours.[xviii] Police became criminals and those who did not failed to arrest and charge those who were and thereby committed a criminal offence as well. Many police could reasonably be described as being members of criminal gangs who were posing as law enforcement officers. Fitzgerald noted: ‘There is no single “rotten apple” or small number of “rotten apples” in the Police Force, and its problems are not confined to specific sections, although there are major concentrations of misconduct in some areas of police activity’.[xix] The Fitzgerald Inquiry exposed a degree of corruption that is more often associated with third world countries where the rule of law has little influence. The role of the police in supporting politicians of their choice is an identifiable problem because it can be influential in allowing corruption to flourish. Queensland Police Commissioner, Sir Terence Murray Lewis, described how he would never support Deputy Premier Bill Gunn to become Premier, stating ‘I got on well with my men, there’s no two ways about that, and he [Gunn] knew that the police vote in the country could be very useful because a lot of people were friendly with their local policeman [and] their Sergeants or whatever, and they’d all talk together . . . they thought Joh was a good bloke’.[xx] The police and political misconduct exposed by the Inquiry was not unique to Queensland and is not an historical artefact.
Royal Commission into the New South Wales Police Service
The ongoing problem with crime in the police forces was at least in part exposed by the subsequent Royal Commission into the New South Wales Police Service,[xxi] which was established on 13 May 1994 by Letters Patent issued to Justice James Wood. It authorised the investigation of a number of matters including ‘the existence, or otherwise, of systemic or entrenched corruption within the New South Wales Police Service’.[xxii] The Royal Commission continued until 10 June 1997. It found that there was systemic and entrenched corruption in the New South Wales Police Service. Justice Wood’s comments about the protection of the drug trade and drug trafficking by the police provide good examples of systemic and entrenched corruption. He stated:
There is an overwhelming body of evidence suggesting the existence of close relationships between police and those involved in the supply of drugs. This encompassed a variety of activities ranging from police turning a blind eye to the criminality of the favoured in return for regular payments, to active assistance when they happen to be caught, to tip-offs of pending police activity, to affirmative police action aimed at driving out competitors.[xxiii]
The police activities around the drug trade did not only involve allowing and protecting criminals to engage in the trade, but also the elevation of police criminality into the direct marketing of illegal drugs. Justice Wood stated:
Perhaps most disturbing of all was the extent to which police admitted to being directly involved in the supply of Cocaine, Heroin and Cannabis. In most cases this involved the recycling of drugs seized in various operations that had simply not had been booked up. The methods of supply included the provision of drugs to informants in return for information and re-sale through informants and known drug dealers.[xxiv]
The police would protect a preferred group of fellow criminals and they would remove criminal competitors.
The Royal Commission engaged in proactive investigations rather than simply reviewing available evidence and questioning witnesses. This approach allowed for a more effective gathering of evidence than is usually the case in Royal Commissions.
The Wood Royal Commission did not just consider police involvement in the illegal drug trade, it also dealt with a wide range of criminal activities such as theft and extortion, assaults and abuses of power, fraudulent practices, compromised prosecutions, protection of gaming and betting interests, protection of clubs and vice operations. Its investigations stopped in 1997 and there remained significant areas of New South Wales where its investigations had not completed or had not commenced.
As a result of the Wood Royal Commission, senior police acknowledged the need to raise the ethical standards of police. It is now accepted by senior police that there is a requirement to have high ethical standards that include upholding the law and preserving an individual’s rights and freedom.[xxv]
The Royal Commissions and the Fitzgerald Inquiry examined past and current misconduct by police. They were open inquires that allowed for exposure of wrongdoing. The aims of such inquiries are to identify wrongdoing and through exposure stop the behaviour. Additionally, such inquiries can lead to the laying of criminal charges and law reform. In the case of anti-terrorism activities under the ASIO Act 1979, there is little prospect of inquiries into wrongdoing, and when the Hope Royal Commission did investigate ASIO its inquiries were done in secret. There is little chance of a Royal Commission being established to investigate misconduct by those engaged in anti-terrorism law enforcement. If one was established precedent indicates that it would carry out its investigations in secret while trying to investigate secret activities, where those they were investigating were authorised to destroy evidence and had immunity from prosecution.
Probably the most infamous case, certainly the case that has received the most publicity, which revealed the fragility of the criminal justice system, is the Chamberlain case. On 17 August 1980 Azaria Chamberlain went missing from a camp site at Ayres Rock (Uluru) in the Northern Territory. This case is covered in detail in another section.
Harold Eastman Case
The Eastman case provides a very clear example of where failure to disclose evidence can lead to a failure to provide a fair trial. On 10 January 1989 at about 9.15am Assistant Commissioner in the Australian Federal Police, Colin Stanley Winchester, was shot and killed when alighting from his vehicle near his home in Lawley Street, Deakin, Canberra. He was shot in the head twice as he was about to get out of his car. The shots it was claimed were fired at point blank range from a Ruger 10/22 calibre rifle fitted with a silencer.[xxvi] David Harold Eastman was charged with the murder of Winchester. On 2 May 1995 Eastman was arraigned and pleaded not guilty. On 3 November 1995 a jury returned a verdict of guilty. Eastman was sentenced to imprisonment for life. There were a number of unsuccessful appeals and an inquiry in 2005 concerning his fitness to stand trial.[xxvii] On 29 April 2011 Eastman applied for another inquiry into his conviction. On 3 September 2012 the application was granted and an inquiry ordered.
Acting Justice Brian Martin conducted the Inquiry. He found a number of flaws in the way that the case was conducted, but one of the most significant was that there was a failure to disclose evidence about the reliability of the testing of gunshot residue undertaken by the prosecution expert, Mr Barnes. Martin J. findings were, inter alia:
A substantial miscarriage of justice occurred in the applicant’s trial.
The applicant did not receive a fair trial according to law. He was denied a fair chance of acquittal.
The issue of guilt was determined on the basis of deeply flawed forensic evidence in circumstances where the applicant was denied procedural fairness in respect of a fundamental feature of the trial process concerned with disclosure by the prosecution of all relevant material.
As a consequence of the substantial miscarriage of justice, the applicant has been in custody for almost 19 years.
The miscarriage of justice was such that in ordinary circumstances a court of criminal appeal hearing an appeal against conviction soon after the conviction would allow the appeal and order a retrial.
A retrial is not feasible and would not be fair.[xxviii]
The failure to properly disclose crucial evidence as found in the Eastman case occurred when all the traditional protections available to ensure a fair trial were available.
David Hicks Case
The Australian government’s readiness to accept fundamentally flawed criminal procedures that ignore or avoid fundamental legal rights protections is shown in the case of David Hicks. This case also shows the muted response by the Australian public to the abuse of one of its citizens by a foreign power. The reaction to his case by the public and the government is an example of why a fully functioning criminal justice system buttressed by established due process protections is essential if the rule of law in a democratic state is to have meaning.
David Hicks, an Australian citizen, was abused by the United States military and security agencies, with the full knowledge of the Australian government.[xxix] He was detained without trial in Guantanamo Bay for over five years, three years of which was spent in isolation. He was captured by members of the Northern Alliance in a taxi in Baghlan, Afghanistan, in December 2001.[xxx] On 11 January 2002 he was taken to Guantanamo Bay and detained without charge as an ‘unlawful combatant’. In July 2003 it was decided by the US President George W Bush that Hicks and five others were eligible for trial by Military Commission which was established by Presidential Order. In 10 June 2004 Hicks was charged with conspiracy to commit war crimes, attempted murder and aiding the enemy. However, before a trial could be held the US Supreme Court in June 2006 held that the Military commissions established by the President were unconstitutional.[xxxi]
Hicks continued to be held in detention without any clear prospect for release. In late 2006 the United States Congress enacted the Military Commissions Act of 2006. In March 2007 Hicks pleaded guilty to one charge of ‘providing material support for terrorism’. In April 2007 he was sentenced to seven years imprisonment, and he was returned to Australia on 20 May 2007 to Yatala Labour Prison in South Australia. As part of a plea bargain by Hicks the remaining nine months of his sentence was suspended on 29 December 2007, and he was then placed under a 12 month control order. In 2014 Hicks appealed against his 2007 conviction and on 18 February 2015 the United States Court of Military Commission Review set aside the guilty plea and sentence and his conviction was quashed.[xxxii] Hicks spent time in gaol as a result of a system that ignored the rule of law and fundamental legal rights.
The Law Council of Australia criticised the way Hicks was treated for the followings reasons: ‘the inability of Hicks to effectively challenge the legality of his detention; Hicks’ treatment in detention; the flawed and inherently unjust rules of procedure and evidence of the military commissions; the lack of any legal foundation for the charges initially pursued against Hicks; the retrospective nature of the charge eventually pursued against Hicks; the acquiescence of the Australian Government in Hicks’ detention without charge; the acquiescence of the Australian Government in Hicks’ trial before a military commission; the terms of Hicks’ plea agreement; and the unnecessary imposition of a control order on Hicks upon his release’.[xxxiii] Timothy McCormack describes the politicisation of the processes involving Hicks as involving, amongst other things, the ‘blustering by Australian politicians’ and by US military prosecutors who claimed Hicks was ‘one of the most dangerous people in the world’, and one of whom addressed a jury with the words, “you are on the frontline of the global war on terror and sit here face to face with the enemy”. The claims, as McCormack points out, ‘proved to be utterly devoid of substance’.[xxxiv]
The case of David Hicks exposed how the parallel legal system allowed for abuse within Australia by the imposition of a control order on a person who ultimately was found to have committed no crime. The case clearly shows the willingness of the executive government to allow one of its citizens to be exposed to abuses whilst in the custody of a close ally who refused to allow him access to their criminal justice system. The attitude of the government as reflected through the then Prime Minister, John Howard, was that justice was not a matter that needed to be considered in the case of Hicks. John Howard states:
The prime example of a barnacle was the time it had taken for the Americans to bring David Hicks to trial. Most Australians suspected that Hicks was at least guilty of the things to which he ultimately pleaded guilty. They had little sympathy for him, but he should have his day in court. The fact that a lot of the delay was due to major constitutional challenges against the military commissions which were intended to try detainees such as Hicks went through to the keeper with most Australians. The longer the wait dragged on, the harder it became to stop supporters of Hicks building him into some kind of martyr.[xxxv]
The former Prime Minister John Howard made these comments although he, at least by qualification, had some understanding of the law. Before entering parliament, he was a solicitor. His comments are concerning in a number of ways. First, they are put forward in a way that reflects his views when he was Prime Minister and therefore the leader of the executive arm of government that devised and promoted anti-terrorism laws. Second, the views display an emphasis on perceived public attitudes rather than on ensuring that an individual received a fair trial. Third, he seems to be endorsing the military commission system of trial, which was inherently flawed, did not contain the safeguards necessary for a fair trial, and has most recently been discredited.[xxxvi]
The public view about how David Hicks was treated is hard to discern and there may not be a settled view by a majority of people about whether the Australian government acted reasonably in his case or not. However, Michael Bradley, a managing partner of a Sydney law firm, probably reflects the opinion of the majority of legal professionals when he commented on the disregard for basic human rights by politicians and suggested that the rule of law would have provided a better solution in the Hicks’ case. He stated:
. . . the likes of Abbott and Brandis . . . debase themselves and their offices with comments that trample on the most basic legal rights. The fact is that Hicks never committed a crime and should never have been charged, convicted and imprisoned. That ought to be acknowledged. Not necessarily apologised for, nor compensated – those are political choices the Government can make.
The lesson that should be taken from this case is that the rule of law, imperfect as it is, provides much better solutions to complex situations than governments will do when they decide to make up the rules as they go. Next time we decide to invade another country, we need to determine our legal justification for doing so and then deal with who and what we find accordingly.[xxxvii]
Another example of the methods employed by law enforcement agents when dealing with someone charged under anti-terrorism laws also indicates that, like their political supervisors, they are prepared to trample on basic rights. The case of Ul-Haque, described next, is one example of unlawful behaviour; however, later additions to the anti-terrorism laws probably make the unlawful techniques that enforcement agents employed now lawful and their criminal offending immune from prosecution. It is apparent that politicians with the necessary power did not want judges criticizing, or finding criminal, the behaviour of law enforcers in the parallel legal system. They have also taken the necessary legislative steps to limit criticism of their actions and those of law enforcers, by limiting or removing access to information about their activities, and by the introduction of non-disclosure and other secrecy provisions.
The Case of Izhar Ul-Haque
An example of how law enforcement authorities can abuse fundamental legal rights when investigating an alleged terrorist offence is shown in the case of Izhar Ul-Haque, a third year medical student, who was charged pursuant to s102.5(1) of the Criminal Code in the following terms :
That between 12 January 2003 and 2 February 2003, in Pakistan, he did receive training with respect to combat and the use of arms from a terrorist organisation, namely Lashkar-e-Taiba, he the said Izhar Ul-Haque at the time aforesaid knowing that the said organization was a terrorist organisation.[xxxviii]
Ul-Haque pleaded not guilty and at his trial objection was taken to alleged admissions he was said to have made to Australian Federal Police officers during interviews which were conducted on 7 and 12 November 2003 and 9 January 2004.
It was alleged that Ul-Haque had trained in a camp operated by Lashkar-e-Taiba for twenty-one days. Upon his return from Pakistan to Sydney on 20 March 2003 his baggage was searched by Customs officers who found a number of documents that consisted of books, notebooks and printed material. The documents referred to a number of things including that he was going to Kashmir for ‘jihad’ and that he intended to join Lashkar-e-Taiba. The Customs officers seized the material and let him go.[xxxix]
Over six months after his return to Australia on 6 November 2003 at 7.25pm about twenty ASIO officers assisted by about five police officers, all in plain clothes, executed a search warrant at his home where he lived with his parents and three brothers.[xl] ASIO and the Australia Federal Police, as the evidence revealed, wanted to use him as an informant. Ul-Haque had been under surveillance earlier in the day at the University of New South Wales, and was observed catching a train from Sydney to Blacktown. ASIO officers B14, B15 and B16 waited for him in the car park of Blacktown railway station[xli] (the names of the ASIO agents have been kept secret). Al-Haque and his seventeen year old brother were confronted by agents and taken in a car to Francis Park some distance away.[xlii] According to Ul-Haque he was confronted and intimidated and told he had to answer questions, he stated; ‘At that time really I didn’t know where I was being taken. In my mind a lot of things were going on, you know, am I being taken to a secret location or some secret ASIO interrogation rooms. I didn’t know what was going to happen to me and then they took me to a park near the Blacktown Railway Station. I think it’s Francis Park, and when we got to the park, officer [B15] told me to get out of the car.’[xliii]
The trial judge Adams J described the initial confrontation and actions in the following way: ‘The officers were dealing with a young man of twenty-one years. It is obvious that any citizen of ordinary fortitude would find a peremptory confrontation of the kind described by the ASIO officers frightening and intimidating. Furthermore, the fact that he was being taken to a park rather than any official place would have added an additional unsettling factor. I do not think it can be doubted that this was precisely the effect that was intended.’[xliv] There were a number of questions asked about activities on the day between Ul-Haque and the ASIO officers. His Honour Adams described the questioning as ‘intimidating’ and noted that Ul-Haque ‘was not told what was being investigated except in the most general terms. He was told, in effect, that he knew what he had done was wrong.[xlv] Adams J’s criticism of the actions of ASIO officers was scathing, stating it was ‘reminiscent of Kafka’.[xlvi]
His Honour found that B15 and B16 had committed the offences of false imprisonment and kidnapping at common law and also an offence under s86 of the Crimes Act 1900 (Kidnapping). He stated that: ‘Their conduct was grossly improper and constituted an unjustified and unlawful interference with the personal liberty of the accused. So far as their conduct in his parents’ home is concerned, it also constituted an unlawful trespass against the occupants, since they gained admittance under colour of the warrant which did not authorise what they did: keeping the accused incommunicado in a bedroom, let alone subjecting him to compulsory questioning.’[xlvii] The period of time when the accused’s fundamental right to liberty was withdrawn was relatively short but nevertheless the agents of the state who did it felt that they were able to do so without penalty, either that or they had no understanding the law placed limits on their behaviour.[xlviii]
The Australian Federal Police conducted an interview with Ul-Haque on 7 November 2003. His Honour Adams noted that Ul-Haque was given a ‘completely inadequate caution’ and the person who commenced the questioning was unaware of the improper conduct of ASIO.[xlix] However, his Honour found that other Australian Federal Police officers failed to ‘remove the effect of what had been said’ to Ul-Haque by ASIO officers.[l] That is, the AFP officers knew that he had been intimidated and had not been properly cautioned by ASIO officers, yet they did not try to overcome the effect of these due process failures on the accused.
The interview that occurred on 12 November 2003 was considered together with the interview of 7 November 2003. His Honour considered the admissibility of the interviews under a number of sections of the Evidence Act 1995. Section 84 of the Act governs the exclusion of admissions where they have been influenced by ‘violent, oppressive, inhuman or degrading conduct’. In this regard his Honour found, inter alia, ‘the conduct of ASIO, in particular by officers B15 and B16, was well within the meaning of the phrase. In substance, they assumed unlawful powers of direction, control and detention. It was a gross interference by the agents of the state with the accused’s legal rights as a citizen, rights which he still had whether he was suspected of criminal conduct or not and whether he is a Muslim or not. Furthermore, the conduct was deliberately engaged in for the purpose of overbearing the accused in the hope that he would co-operate.’[li] Relevantly, for the purpose of considering whether separate agencies, within the enforcement part of the criminal justice system, would be a controlling influence on each other for the purpose of stopping abuses, his Honour found this not to be a realistic proposition. He stated:
Quite rightly, the accused regarded ASIO and the AFP as arms of the state. He quite rightly assumed that they were acting together. The notion that he would be likely to reason that the AFP would not tell ASIO about the extent of his cooperation is fanciful. It would also have been utterly mistaken. Not only did the AFP disclose what he had said to ASIO, but both organizations were aware that this was consistent with what he had said to ASIO on 6 and 7 November. Ordinary reason – quite apart from the accused’s evidence – leads to the conclusion that there could be no confidence either that the cautions would be taken as realistically describing his actual position or that his agreements at the end were honestly answered.[lii]
The interviews were excluded pursuant to s138 of the Evidence Act 1995 that governs the exclusion of improperly or illegally obtained evidence.[liii]
The police evidence was found in several instances to be untruthful. Adams J stated: ‘I do not accept that in respect of those parts of the evidence in which [AFP Officer Pegg] is contradicted by the accused, I should prefer his account. Having decided, as I reluctantly feel I must, that Mr Pegg did not tell the truth about the conversation following the first interview with the accused, a question mark as to his veracity necessarily attaches to other portions of his evidence which are not independently corroborated. I prefer the accused’s evidence over that of Mr Pegg where they are in contradiction.’[liv]
The third interview which occurred on 9 January 2004 was also found to be inadmissible on the basis that the Crown could not prove it was not influenced by the oppressive conduct of ASIO.[lv] The Director of Public Prosecutions abandoned the prosecution after the judge found the alleged admission could not be used during the trial.
The Australian Federal Police who gave evidence at trial were identified and their errors exposed to public gaze, as is appropriate in criminal cases. The ASIO agents who committed criminal offences were protected from public scrutiny. The then Attorney-General, Philip Ruddock, is reported to have said that ‘any disciplinary action against the ASIO officers was a matter for the intelligence watchdog, Ian Carnell’.[lvi]
The ramifications for the justice system are not limited to one criminal case being decided on an admissibility issue, as frequently occurs. The judge, who made the decision, it is reported, had a complaint lodged against him by Robert Cornall, Secretary of the Federal Attorney General’s Department and one of the original architects of the first wave of anti-terrorism legislation. The complaint, it is reported, was lodged with the Judicial Commission of New South Wales and was in part based on the fact that it was revealed that ASIO Agents had broken criminal laws.[lvii]
Ian Carnell, the Inspector-General of Intelligence and Security, in a ‘Report of Inquiry into the Actions Taken by ASIO in 2003 in Respect of Mr Izhar Ul-Haque and Related Matters’ dated 12 November 2008, made a number of findings and recommendations. Carnell held the position of Inspector-General between 23 March 2004 and 9 April 2010. Prior to taking up the position he was Deputy Secretary, Attorney Generals Department, responsible for national security. His findings differ significantly from those of Justice Adams. Essentially, Carnell decided the agents B15 and B16 were people of good character and accepted the evidence of other ASIO officers that they were ‘habitually professional and respectful in approaching members of the community,[lviii] and that there was no ‘substantial evidence’ to show they did anything wrong.[lix]
Carnell made very little reference to the credibility of Ul-Haque, simply stating that he did not give evidence before him and in that any event ‘I do not see it as my role to come to a view as to whether I prefer the substance of the evidence of one person over another’.[lx] Whilst he claimed not to prefer the evidence of one person over another, he clearly did, and he used good character to assist in determining the issue of whether the agents did anything wrong. At law, character evidence can be used to assist in determining if a witness should be believed or not. The approach he adopted when considering the case seemed to be administrative rather than judicial. He therefore was not required to apply a standard of proof or to consider who had the burden of proof.
Dr Mohamed Haneef Case
Dr Haneef, an Indian Doctor, was about to leave Britain to travel to Bangalore to visit his family before travelling to Australia to take up a position at a hospital in Queensland. Before leaving, on 25 July 2006, he gave his second cousin Sabeel Ahmed the SIM card from his mobile phone. It was due to expire in August 2006. On 30 June 2007, approximately one year later, the second cousin’s brother Kafeel Ahmed crashed a jeep into the entrance of Glasgow Airport, with Kafeel dying from injuries two days later. The day before that action Kafeel was a central figure in a thwarted attempt to car bomb 2 London nightclubs. The second cousin, Sabeel, was arrested on 30 June 2007 in connection with the Glasgow attack and failed London bombings.
Dr Mohamed Haneef was arrested on 2 July 2007 and held without charge for 12 days under the provisions of Australia’s anti-terrorism legislation.[lxi] The relevant sections of the Crimes Act 1914 allow for an extension of the period of detention where a person has been arrested for a terrorism related offence. However, in order for a police officer to arrest a person, even if subsequent amendments to anti-terrorism are applied, [lxii] that officer needs to have a reasonable suspicion that person committed or was committing an offence. The involvement of one second cousin in the bombing and the provision of a SIM card that expired nearly a year before the bombing could not form the basis of a reasonable suspicion for an arrest. The police removed the fundamental right to liberty and continued the abuse despite the fact that they had no legal basis for doing so, and the magistrate or magistrates who kept approving the extension of his detention were either mislead about the need for continuing detention, or applied an administrative rather than a judicial approach to the detention.
On 14 July 2007 Dr Haneef was charged with one offence of recklessly providing support to a terrorist organisation on the grounds that his SIM card was connected to the failed terrorist attacks in Britain, contrary to section 102.7(2) of the Commonwealth Criminal Code. The police who arrested Dr Haneef alleged the SIM card he gave to his cousin Sabeel was found in the jeep that Sabeel’s brother Kafeel had crashed at Glasgow Airport. It was a false allegation, but none the less formed one of the unreasonable bases of his arrest. The UK police had known for six days before Dr Haneef was charged that the SIM card was not found at the scene, but no attempt was made to correct the erroneous story by the Australian Federal Police, the Commonwealth Director of Public Prosecutions or the Queensland Police Service. Furthermore, there was evidence in an email known as the ‘Jihad email’ sent by Kaleef to his brother Sabeel, that the latter had no knowledge of the plans; evidence which showed that Dr Haneef was not connected to the car bombing.
Dr Haneef had his 457 work visa cancelled by the Immigration Minister on the basis of failing the character test pursuant to section 501(3) of the Migration Act 1958. Under s 147 of that Act he was required to stay in immigration detention and later home detention and then to leave voluntarily for India on 28 July 2007. The day prior to his departure the Commonwealth Director of Public Prosecutions had withdrawn the charge.[lxiii]
The case of Dr Mohamed Haneef is a clear example of where the criminal justice system failed to protect his rights and where anti-terrorism laws were used to justify his incarceration. The government intervention in his case is a clear example of it becoming involved in the administration of justice in a way that allowed the criminal justice system to become dysfunctional. The former Prime Minister, John Howard, seems to have had little concern about Haneef and how he was being treated. He was, however, very concerned about how the Government would be viewed. He wrote:
Other awkward news was the decision of the AFP to abandon altogether any action against Mohamed Haneef, the Indian doctor employed in a Queensland hospital and detained on suspicion of a link with a terrorist attack in Glasgow, Scotland. Even though Haneef had been released, Kevin Andrews cancelled his visa and the man returned to India. The detention and charging of Haneef had occurred independently of the Government. The AFP had acted on the advice of the Director of Public Prosecutions (DPP) who later admitted that the advice given had been faulty. Even though Andrews had adequate reason on character grounds to cancel the visa, the Government was heavily attacked for trying to exploit fear of terrorism for political gain. The AFP’s decision to abandon the case against Haneef bolstered, however unfairly, that attack on the Government.[lxiv]
The suggestion by Howard that the ‘advice given had been faulty’ implies that information based on a lie was a minor issue. It cannot reasonably be regarded as a minor problem because such lies allow the criminal justice system to be perverted. Lies fracture the interdependent relationship between the various elements of the system and can lead to miscarriages of justice.
The action of government Minister, Kevin Andrews, in cancelling the visa of Dr Haneef was clearly a political decision taken on the basis that he was a terrorist threat, or at least had close connections with people who were terrorists and therefore had an unsuitable character for residence in Australia. The fact that a distant relative was a criminal would not normally be used to assess character without the terrorist element. The government had no reason to be concerned about Dr Haneef because the evidence clearly showed that he had no involvement at all with the attack at Glasgow Airport, but it was willing to use fear to enhance its political standing. Kathleen Gleeson makes a number of significant points about the case. First, that evidence ‘was clearly secondary to innuendo and speculation’ and that ‘humanising information was avoided’. Second, that Kevin Andrews focused his media appearances on talkback radio where he had a better chance ‘of the message resonating with listeners’. Third, that although most Australians thought the case was ‘poorly handled’, they ‘thought extraordinary detention measures were warranted’.[lxv]
As Kent Roach notes, the actions taken against Dr Haneef were worse than a failure of due process or, as suggested by Howard, a reasonable character assessment and a failure by the DPP. Roach calls the Haneef case a demonstration of ‘how aggressive counter-terrorism measures can stretch the limits of the law’, in his case ‘through a strategic use of “dead time” provisions that exempted unused hours from provisions that allowed detention for questioning’, thus allowing 12 days of detention. [lxvi] Dr Haneef was abused by government officials and law enforcement agents who were not penalised for their behaviour. He received a financial settlement and an apology from the government.
There are numerous other Australian cases where miscarriages of justice have occurred, even though procedures are in place to reduce the possibility. Rachel Dioso-Villa identified 57 people who had been convicted and were later exonerated and received compensation in Australia between 1956 and 2011. The time served in custody ranged from 30 months to 15 years.[lxvii] The cases identified by Dioso-Villa do not include all those who have been wrongfully convicted during the period examined. There are also many cases in other common law countries including England and the United States. The point being that even in those criminal justice systems which robustly attempt to ensure fair trials, the very real possibility of a miscarriage of justice occurring remains, and where safeguards are removed the number of people wrongfully convicted will more probably than not increase.
A further significant case that involved police lying and fabricating evidence that led to a miscarriage of justice is Mickelberg v The Queen.[lxviii] In Morgan v R[lxix] the prosecution used spurious expert evidence to gain a conviction. The case Wood v R[lxx] involved the use of inadmissible evidence.
Additionally, if it is thought that police criminality can be relegated to history, more recent examples show this to be wrong. For example, there is the high profile case of Mark Standen who was Assistant Director of Investigations with the New South Wales Crime Commission. He was arrested on 2 June 2008 and eventually found guilty of conspiring to import and supply 300 kilograms of pseudoephedrine and using his position to pervert the course of justice. He appealed his conviction but was unsuccessful, and his sentence of 22 years with a non-parole period of 19 years was maintained.[lxxi] Standen was reported as having ‘supervised some of Australia’s biggest international drug busts and investigated corrupt police’.[lxxii] Standen fits the profile of criminal offending by police revealed in the Fitzgerald Inquiry and the Wood Royal Commission.
In a legal system that places emphasis on restricting rights and maintaining secrecy, the opportunity for miscarriages of justice multiplies. The inquiries and cases reviewed show that reliance should not be placed on any part of the criminal justice system acting in isolation, to act with integrity. In the case of law enforcement officers, the need for vigilance to ensure they do not abuse their powers is overwhelmingly made out. Of crucial significance is also the fact that a system that allows for secrecy and provides law enforcement agents with wide ranging powers allows for criminal activity to flourish, as shown by the findings of the Fitzgerald Inquiry and the Wood Royal Commission. Both those inquiries reveal systemic corruption by law enforcement officers, the extent of which raises serious concerns about the potential for institutionalised abuse in the parallel legal system that has been created as a result of anti-terrorism legislation. The cases of Ul Haque and Haneef demonstrate that there is little to stop abuses by law enforcement officers occurring and recurring, particularly in a political environment of manipulated fear of terrorism. The Ul Haque case also shows that reviews by bureaucrats within the parallel system legal system established by anti-terrorism laws, such as the report by the Inspector-General of Intelligence and Security, cannot be expected to reveal restrictions of fundamental legal rights, let alone prevent or minimise such restrictions.
[i] Ian Turner, Sydney’s Burning, (Alpha Books, 1967) 256.
[ii] Chester Porter QC, The Conviction of the Innocent: How the Law can let us down (Random House, 2007) 1.
[iii] Ibid 43.
[iv] Porter, above n 146, 50-51.
[v] David Hickie, The Prince and the Premier (Angus & Robertson, 1985).
[vi] Ibid 11-12.
[vii] Murray Goot, ‘Askin, Sir Robert William (Bob)’, Australian Dictionary of Biography (Melbourne University Press, Vol 17, 2007) 35-40, cited at http://adb.anu.edu.au/biography/askin-sir-robert-william-bob-12152.
[ix] Neil Mercer, ‘Crime must be attacked now, says Moffitt’, The Sydney Morning Herald, 19 May 1983, 3.
[x] J.A. Lee, Royal Commissioner, Report of the Royal Commission of Inquiry into the Arrest, Charging and Withdrawal of Charges Against Harold James Blackburn and Matters Associated Therewith, June 1990, 395.
[xi] A recent example involving an arrest for an alleged offence is the case of teenager Harun Causevic who was held for 120 days before being released: Adam Cooper and Michael Bachelard, ‘Terrible injustice’: Lawyer calls for apology for teen terror accused Harun Causevic, The Age, 25 August 2015.
[xii] G.E. (Tony) Fitzgerald Q.C., Report, Commission of Inquiry into Possible Illegal Activities and Associated Police Misconduct, Brisbane, 1989.
[xiii] Ibid 3.
[xiv] Ibid 4.
[xv] Ibid 63.
[xvi] Ibid 7
[xvii] Ibid 206 [7.4].
[xviii] Ibid 207.
[xix] Ibid 208.
[xx] Cited in Matthew Condon, All Fall Down (University of Queensland Press, 2015) 247.
[xxi] Justice JRT Wood, Royal Commission into the New South Wales Police Service, Final Report, May 1997.
[xxii] Ibid 1.
[xxiii] Ibid [4.135], 119.
[xxiv] Ibid [4.182], 132.
[xxv] New South Wales Police Service, ‘NSW Police Service, Code of Conduct and Ethics’, 25 February 1997, Commissioner’s Instructions, Instruction 3 – Professional responsibility in policing.
[xxvi] Eastman v The Queen  548 FCA.
[xxvii] Inquiry under s 475 of the Crimes Act 1900 into the matter of the fitness to plead of David Harold Eastman, 6 October 2005.
[xxviii] Report of the Board of Inquiry, ‘Inquiry into the Conviction of David Harold Eastman for the Murder of Colin Stanley Winchester’, .
[xxix] Detailed descriptions of the public and mental abuse inflicted on David Hicks can be found in David Hicks, Guantanamo: my journey, (William Heinemann, 2010).
[xxx] Leigh Sales, Detainee 002: The Case of David Hicks (Melbourne University Press, 2007) 27.
[xxxi] Hamdan v Rumsfeld 548 US 577.
[xxxii] David Hicks v United States of America CMCR 13-004. The UN Human Right Committee recently found that Australia violated article 9(1) of the Covenant on Civil and Political Rights by imprisoning Hicks from 20 May 2007 until 29 December 2007 in accordance with the transfer agreement it had negotiated with the United Sates. Human Rights Committee, International Covenant on Civil and Political Rights, Communication No. 2005/2010, 16 February 2016, annex I, para 5.
[xxxiii] Law Council of Australia, David Hicks Reports, Summary attaching reports from 2004 to 2011, cited at www.lawcouncil.asn.au/lawcouncil/index.php/david-hicks.
[xxxiv] Timothy McCormack, ‘David Hicks and the Charade of Guantanamo Bay’ (2007) 8(2) Melbourne Journal of International Law 274.
[xxxv] John Howard, Lazarus Rising: A Personal and Political Autobiography (Harper Collins, 2013) 745,746.
[xxxvi] See United States Supreme Court case Hamdan v Rumsfeld 548 US 577.
[xxxvii] Michael Bradley, ‘The lessons to learn from the David Hicks case’, ABC News, 20 February 2015, cited at www.abc.net.au/ news/ 2015-02-20.
[xxxviii] R v Ul-Haque  NSWSC 1251.
[xxxix] Ibid 12.
[xl] Ibid 14.
[xli] Ibid 15.
[xlii] Ibid 15.
[xliii] Ibid 17.
[xliv] Ibid 19.
[xlv] Ibid 31.
[xlvi] Ibid 31.
[xlvii] Ibid 62.
[xlviii] Adams J formed the view that the behaviour of the ASIO agents showed at least incompetence: Ibid 70.
[xlix] Ibid 69.
[l] Ibid 70.
[li] Ibid 95.
[lii] Ibid 97.
[liii] Ibid 106.
[liv] Ibid 116.
[lv] Ibid 118.
[lvi] Tom Attard, ‘ASIO interrogators were grossly incompetent: judge’, Sydney Morning Herald, 13 November 2007.
[lvii] Tom Allard, ‘Complaint filed against judge who slammed ASIO’, The Age, 26 December 2007.
[lviii] Ian Carnell, Report of Inquiry into the Actions Taken by ASIO in 2003 in Respect of Mr Izhar Ul-Haque and Related Matters, 12 November 2008, 35 .
[lix] Ibid 36 .
[lx] Ibid 35 .
[lxi] Part 1C Subdivision B, Crimes Act 1914.
[lxii] Section 3WA, Crimes Act 1914.
[lxiii] Mark Rix ‘The Case of Dr Mohamed Haneef: An Australian ‘Terrorism Drama’ with British Connections’, (2009) Plymouth Law Review 126-147.
[lxiv] Howard, Lazarus Rising, n 189, 752, 753. Brian Galligan and Emma Larking note that ‘the Haneef case was politicized to a degree almost unthinkable in a country supposedly committed to the rule of law’. ‘The separation of judicial and executive powers in Australia: detention decisions and the Haneef case’, refereed paper delivered at Australian Political Studies Association Conference, Brisbane, July 2008, p 18.
[lxv] Kathleen Gleeson, ‘Using the Bully Pulpit: The Construction of the “War on Terror” Discourse in Australia’, PhD Thesis, University of New South Wales, 2012, 200.
[lxvi] Kent Roach, The 9/11 Effect: Comparative Counter-Terrorism, Cambridge University Press, 2011, 311.
[lxvii] Rachel Dioso-Villa, ‘Without Legal Obligation: Compensating the Wrongfully Convicted in Australia’, (2012) 75.3 Albany Law Review 1329, 1340. Other cases, many of which may be unrecorded, involve police criminality that was not investigated. For one example, see Rick Feneley, ‘Erased from the records: investigation into bashing of gay man by police in Surry Hills in 1989’, Sydney Morning Herald, January 19, 2015, cited at http://www.smh.com.au/nsw/erased-from-the-records-investigation-into-bashing-of-gay-man-by-police-in-surry-hills-in-1989-20141030-11e4pz.html.
[lxviii]  WASCA 145.
[lxix]  NSWCCA 257.
[lxx]  NSWCCA 21.
[lxxi] Paul Bibby, ‘Former NSW Crime Commission boss Mark Standen loses appeal in drug supply case’, Sydney Morning Herald, 14 August 2015, cited at www.smh.com.au/nsw/former-nsw-crime-commission-boss-mark-standen-loses-appeal-in-drug-supply-case-20150813.
[lxxii] Les Kennedy and Dylan Welsh, ‘Top investigator arrested’, Sydney Morning Herald, 3 June 2008, cited at www.smh.com.au/national/top-crime-investigator-arrested-20080602.