To The Attorney General Of
Preliminary Facts And Basis Of The Application`
In The Application Of James Saleam, Supreme Court, (2005) (unpublished), Hidden J records that I was convicted in the District Court at Sydney in February 1987 of Special Verdict (Larceny / Receive) and Make Statement To Obtain Financial Advantage. An appeal was lodged immediately and it was finally dismissed in April 1989. An application was made for a pardon to the Attorney General in 1995 - and was rejected. An application to the Supreme Court for an inquiry into these convictions Crimes (Appeal AndReview) Act (2001) was filed in August 2002 - and dismissed in December 2005.
I append as Folio A. The Application Of James Saleam, Supreme Court, (2005) (unpublished)
I have denied from the moment of my arrest the prosecution case against me. In particular, I have engaged in varied efforts to acquire fresh material since my conviction in order that I might challenge various aspects of the prosecution case and particularly the essential credibility of the only probative Crown Witness in the case, Catalina Martinreyes (deceased 2007).
I was previously supported in part at least by my co-accused, Peter Coleman, who was acquitted at the trial. He gave evidence at the trial denying that he was involved in any way in the crimes and he also challenged parts of Martinreyes’s personal story. Afterwards, he provided affidavit material confirming his sexual relationship with Martinreyes, serious pre-arrest arguments with her and other matters.
It is common ground between me and the Crown\ Solicitor’s Office (and as found by both the Court of Criminal Appeal and Justice Hidden) that the prosecution case depended exclusively upon the evidence of Catalina Martinreyes. Certain documents and some (supposedly) ‘recovered’ stolen property were also tendered at the trial as supportive of her story. The significance of these items in terms of the prosecution case depended entirely upon the construction offered them by Martinreyes. It could be said these items are corroboration only through self-corroboration. Elsewhere, I have called these things “theatre props” for a tale supported by one witness. Nonetheless, it has been held in The Application Of James Saleam at paragraphs 83 and 84, that Martinreyes’s evidence was “cogent” and was tested in a spirited jury trial and that whatever new material I had advanced to that point in 2005 - was not sufficient to impugn the verdicts.
It has always been my position that Martinreyes was mentally ill (a factor relevant to the accusation and the quality of the evidence), but also highly intelligent. If her evidence had been anything less than cogent, I would have registered surprise. In a case of disputed oral testimony in which the word of a single person has been put against me, it has been necessary at every point for me to point out the blemishes upon her testimony. Crown advocates have hitherto said that all my new material was simply an attack upon her credit only. I say that it was always an attack upon her credit at the highest possible range of that notion – at the very vortex of believability and reflexive of the truth as my new material also demolished actual lies sworn to in evidence.
In March 1998, I was telephoned by Catalina Martinreyes and Irecorded that conversation.
It was then that I learned Martinreyes had been the subject of a case in the Yasmar Children’s Court based upon an investigation by the (predecessor of) the Department of Community Services (hereafter:DOCS).. Briefly here, these processes saw her children taken from her and some of the supposed ‘facts’ of her life history as she had given them in her evidence at my criminal trial used in another way to her disadvantage. As I will later describe, there had been a de facto mini trial over collateral issues from my criminal trial which were used to ground another verdict. In particular, new material surfaced as to her mental health – an issue that had been raised against her in the trial albeit without any substantive basis. I say the issue of mental health must have been central to Martinreyes losing custody of her children.
I append as Appendix B a transcript of my telephone conversation with Catalina Martinreyes.
I knew nothing of these events prior to the telephone call from Martinreyes. If this information was known to any police or any prosecutorial agency, it had never been divulged. If she had never contacted me, this information may well have remained concealed.
I subsequently interviewed Martinreyes’s mother Betty Mary Mowbray and she confirmed much of what Martinreyes had told me. She also said other things of relevance to this application for your intervention.
I append as Appendix C a transcript of my conversation with Betty Mary Mowbray.
I acted to have material from the DOCS investigation produced to me in order that it supported my application for review of my convictions at the Supreme Court. An application under Freedom of Information was made and ultimately a case was heard in the Administrative Decisions Tribunal in 2001 - 2002. It was dismissed. An appeal to the Appeal Panel was dismissed. Essentially, it was reasoned that these files were “child protection files” and privileged against disclosure, and that release of them to me was release to the world at large, that release would violate the confidentiality of notifiers and other persons and violate the privacy of the Martinreyes children. Ultimately, I made my application to the Supreme Court without this material.
I append as Appendix D a copy of the judgment Saleam -v- Director General, Department of Community Services and Ors  41
A solicitor acting for DOCS, Mr. David Croke identified some 350 pages of material directly relevant to my application without disclosing their content. He provided a schedule of these documents. There are some extra 2500 pages on the DOCS files. The schedule was before the Administrative Decisions Tribunal.
I append as Appendix E a copy of the schedule of the DOCS papers as before the Administrative Decisions Tribunal.
Acting in what I considered a bona fide way, I made a further application to the Department of Community Services in 2010 for the papers and this too proceeded to the Administrative Decisions Tribunal, where it was dismissed as an attempt to re-adjudicate a matter already determined. Whilst I rejected that notion and argued against it, I was clearly unsuccessful.
I append as Appendix F a copy of Saleam v Department of Human Services, Community Services ; NSWADT 216
I also made a formal request to the Registrar of the Children’s Court for access to the file on Martinreyes. As expected, this was refused with the Registrar citing the 2002 decision in the Administrative Decisions Tribunal as one justification.
I append as Appendix G a copy of the letter refusing access to the Yasmar Children’s Court file.
Long ago, I formed a view that the New South Wales Police Special Branch had knowledge of the Yasmar and DOCS matters at the time my appeal was active before the Court of Criminal Appeal in 1988 - 1989. In 2010, I applied for Martinreyes’s Special Branch file, a case which also proceeded to the Administrative Decisions Tribunal. This application was unsuccessful and dismissed in an extempore judgement on February 7 2011. During the case before the ADT and as a result of material filed on me by the Commissioner Of Police, I formed a view that the Special Branch did have some information about a raid on Martinreyes’s premises by other police (and as she had described to me when her children were taken from her).
I also formed a view that the Special Branch had corresponded with the Director of Public Prosecutions and the then Solicitor for Public Prosecutions about these issues in 1988 - 1989. Nonetheless, whatever I had argued on this application was rejected by the Tribunal Member who upheld the Police submissions that Special Branch material was absolutely exempt from production under Freedom of Information law.
My view that Special Branch documents exist to support these claims was supported by the way the Freedom Of Information Unit framed its objections to the release of material (see below). This was an error on their part.
I append as Appendix H a copy of various submissions on behalf of the Commissioner Of Police.
Why I Come To The Attorney-General
Obvious legal blocks exist .which militate against any disclosure to me of the material. Essentially, I have no court to take a case which may allow the issue of any subpoena for any part of the material. The Administrative Decisions Tribunal has denied access to the DOCS and Special Branch papers. No access to the Children’s Court file is to be allowed. Any other technical complaint that evidence was suppressed from my original trial or appeal processes, as might be made to the Police Integrity Commission or the Ombudsman, are not likely to be taken up. They may not be seen as “serious” enough to warrant any intervention and may otherwise fail through lack of full jurisdiction.
I would submit that only the Attorney-General may now lawfully cause a review of these documents to be undertaken.
During The Application Of James Saleam, I stated in my submissions to the Supreme Court that it may be possible for a subpoena to be issued against DOCS for its material. Nonetheless, I strongly suspected that this was not the law and suggested more properly to His Honour that the absence of the material in view of the schedule provided would of itself induce a doubt or question about the verdicts. His Honour declined that course. Indeed, His Honour stated the law: that it was up to me as the applicant to the Supreme Court to have the material upon which I hoped to rely (paragraphs 39, 78 - 80). The Court did not conduct any pre-inquiry to determine if a case existed that it may order a Crimes (Criminal Appeal And Review) Act inquiry.
In my various cases before the Administrative Decisions Tribunal (I have also attempted to acquire other material outside of the DOCS and Special Branch material), a certain error in law has developed. This error implied that I could, or the Justice could, possibly issue a subpoena at the Supreme Court for material to support my application for judicial review of conviction at the first stage of the matter, that is where was the Justice was assessing whether there was any doubt or question as to the evidence or any part of the evidence as might cause him to direct an inquiry. The error formally stated that I could rely on the hearsay assertion that something existed to cause a Justice to act. Of course, this is not the law and indeed a Justice does not act on hearsay, nor at no point does the applicant have any subpoena rights as they always remain with the Court and then, only after an inquiry is ordered. This error also arose in submissions tendered by the Crown Solicitor’s Office to the Tribunal and in discussion before the Tribunal
I refer to Saleam -v- Director General, Department of Community Services and Ors  NSWADT41 at paragraph 45 (39), 47, 50, 54, 55, 71 I also refer to Saleam v Registrar of Births, Deaths & Marriages  NSWADT 79 at paragraphs.42 - 46 I maintain the grievance that had the Tribunal properly appreciated the working of the Crimes (Appeal And Review) Act (2001), it might have decided my matters there – differently. If the Tribunal had properly understood that no such subpoena rights existed at the first stage of the case and that hearsay assertion of the existence of some supposed evidence were not sufficient to move a Justice to act – then it might have opted to allow access to the papers, or examine them for itself to ground contact with the Attorney-General to alert you to a possible miscarriage of justice.
I append as Appendix I a copy of Saleam v Registrar of Births, Deaths & Marriages  NSWADT 79
In respect of this judgement, I refer to paragraphs 36 – 46.
In taking matters to the Administrative Decisions Tribunal, I have argued that the Freedom of Information process can and should operate as a type of post trial and post appeal discovery method. Certainly, I sought to use it this way, have used it this way and believe this purpose should be formalised.
The Tribunal made it clear in Saleam -v- Director General, Department of Community Services and Ors  iNSWADT 41, and particularly in the direct dialogue between myself and the Tribunal member as in the transcript, that it did not regard the freedom of information legislation as a discovery process where my purpose was paramount Indeed, the blocks placed in my way at the Administrative Decisions Tribunal amount, on my submission, to a calculated use of the law to defeat justice.In my view, the Crown Solicitor’s Office was aware of the effect of its submissions in the Tribunal and that it operated to ensure that no material was adduced that may impugn the verdicts.
I had also argued in 2010 before the Tribunal on the DOCS case and the Special Branch file case that it had the reserve power, if it opted not to grant access to the documents, but accepted that a question may exist over evidence offered in the trial by Martinreyes and which could have affected the result at the appeal or in my inquiry application, to issue some sort of judicial certificate that assisted my future application to the Supreme Court. This certificate could not reveal exempt matter, but it could state that the Tribunal has seen material which appeared to “raise a doubt or question” about my convictions. Such a certificate could have been the ‘open’ document that could have been supported, at the time the application was lodged, by a confidential affidavit detailing the material. I said that his power arose as a construction based upon three sources:
(i) I further referred the Tribunal at one point to Saleam -v- Director General, Department of Community Services and Ors  NSWADT 41 at 50 where it was sated that the original agency has the right to correspond with other authorities if it notes material which points to a breach of the law. I said that the Tribunal stands in the place of the original agency and may report a breach or likely breach of the law. In that regard it may communicate with the Commissioner of Police, the Police Integrity Commission and the Attorney-General.
(ii) I said that the Act conferred a power at Section 58: (the Tribunal may report improper conduct: “If, as a result of a review application, the Tribunal is of the opinion that an officer of an agency has failed to exercise in good faith a function conferred or imposed on the officer by or under this Act, the Tribunal may take such measures as it considers appropriate to bring the matter to the attention of the responsible Minister for the agency.” The Tribunal may determine whether it is possible the Police Force has sought to use the exemptions to cover over corrupt conduct – or even that it might appear to be so. In that regard it may communicate with the Commissioner of Police, the Police Integrity Commission and the Attorney-General.
(iii) I said the Tribunal itself is a legal structure which makes competent decisions and is part of the administration of justice. It has no right to ignore anything that comes before it which may suggest improper or illegal conduct. The Tribunal has no right to conceal a crime which is a Crimes Act offence. In view of the relationship between my cases at the Tribunal case and a criminal process, any offence which arises in the administration of justice, the appropriate authority to resolve the matter must be the Attorney-General.
(iv) I said these powers derive of responsibilities as established under the Freedom of Information Act, under the Crimes Act and under common law. They fuse together to establish that the Tribunal in a particular case can be in a limited way an agency of law enforcement. Such a thing may have been reasonable since the process of judicial review of convictions was unique to New South and operates to a singular method. Evidence must be presented there to invoke the Criminal Appeal And Review Act (2001).Part 7 – to allow review. The evidence must be real evidence whether normally admissible to a trial or appeal or not. The certificate would be admissible with a confidential affidavit to allow a Justice to act.
Previously, the Appeal Panel in Saleam -v- Director General, Department of Community Services and Ors  NSWADTAP 30 rejected the idea that it could do anything along the lines of issuing a certificate in respect of the exempt matter, or releasing material to the Supreme Court only. It claimed lack of power. In view of the foregoing, this is misconceived. I say that the Appeal Panel case was wrongly decided in that general area, but even if it was not, it has left me without real redress. To refuse to release material confidentially to the authority that can review improper convictions is to allow these convictions to stand. The Appeal Panel did not consider what its responsibilities already were in terms of notification to the office of the Attorney General.
I append as Appendix J a copy of Saleam -v- Director General, Department of Community Services and Ors  NSWADTAP 30
Has The Attorney-General Power To Intervene?
I have a sense of grievance that material reasonably exists in the three sets of files to impugn my criminal convictions, but that it cannot be produced by any regular process. I have, as I shall describe, a more than reasonable apprehension as to the probative content of the material.
I have also a sense of grievance that the Administrative Decisions Tribunal has interpreted the law narrowly to deny any form of relief and that the Crown Solicitor has misinformed it as to the law and argued against my proposition that evidence is available or relevant even when officers there must reasonably suspect the truth of my claims.
The Attorney-General has previously conducted a review of material after a trial and an appeal. This was done in 1984 in the well known case of Timothy Anderson, Ross Dunn and Paul Alister who were convicted of attempted murder and conspiracy to murder. Material from the New South Wales Police Special Branch denied to the defence in the trial and the appeal was examined by Malcolm McGregor QC – and successfully grounded a successful judicial inquiry. It was McGregor who represented me on my appeal. For what it is worth here, I say McGregor formed a view on his state of knowledge at the time that Martinreyes had perjured in the trial.
There is in New South Wales no commission that takes submissions and conducts investigations about supposedly unsafe convictions. The powers of the Supreme Court on an application for judicial review do not extend to any form of preliminary discovery process so as to support an application. Although South Australia is now considering forming a Criminal Cases Review Commission, which will carry out investigations where it reasonably appears that evidence may exist out of reach of the applicant, but which could prove a miscarriage of justice, my application here must rely upon the good grace of your office. There is no appeal to any court from any decision you may make.
The power of the Attorney-General to intervene in this matter must lie in the function to protect and uphold the integrity of the administration of justice. It is contrary to public policy to allow convictions to stand if material exists to impugn them and if prosecutorial agencies have not been forthcoming with their state of knowledge about such material. It could also be considered that this case has a long history and that it is more than likely further fresh evidence may be found to impugn the verdicts. I can advise you that I am indeed making additional enquiries. Your power may be discretionary, but it should be exercised in any case where the applicant shows reasonable cause.
My Allegation Of Police And Prosecutorial Misconduct
In July 1988, I appeared with Malcolm McGregor in the Court of Criminal Appeal. We sought leave to issue a subpoena on the Commissioner of Police for material provided to the New South Wales Ombudsman as the result of a complaint that I and Peter Coleman had made against the adequacy of the original case investigation. It was argued that material in the file could ground a fresh evidence appeal. A police officer seconded to the Ombudsman gave evidence that she had noted “anomalies” on the file.
A subpoena was issued and in November 1988 the Court granted my counsel access to the file. I have since obtained this file under Freedom of Information and some documents from it are provided on this application.
This decision in R v Saleam 16 NSWLR 14 has established many of the principles behind the “legitimate forensic purpose” principle in the issue of trial and appeal subpoenas. It referred to many issues including the matter of a subpoena for material that could impugn the credit of a witness where the essential credibility of the witness was crucial to the trial. The decision has often been held up as one which ensured the integrity of both trial and appeal processes. I understand it has some relevance, even after the passage of the new Evidence Act.
I say to you that this liberal decision was poisoned by the parallel legal case at the Yasmar Children’s Court whose details were denied to me and my counsel by the Crown advocate and the police. I would say that this was deliberately done by the Special Branch (which also amounts by law thereby to prosecutorial misconduct). I cannot say what the precise state of knowledge on the part of the Crown advocate may have been. I merely say that he had some knowledge.
In late August 1988, Catalina Martinreyes was the subject of a police raid on her Housing Commission premises in Kellick Street Waterloo. There seems to have been a pattern of complaint to DOCS from a period prior to the February 1987 trial which culminated in serious complaints about her conduct in mid 1988. The nature of these complaints is not known to me, but reasonably these complaints were serious in view of what followed.
The Martinreyes children were taken into care. Enquiries performed by me in the last few years suggest that Martinreyes was ‘scheduled’ to the psychiatric ward at the Royal Prince Alfred Hospital. In the months of September and October 1988, various reports were completed upon her and the children. Around October 28 1988, court orders were issued at Yasmar Children’s Court which granted to Martinreyes’s mother, Betty Mary Mowbray, he custody of the three children. It is likely from material referred to by both Martinreyes and Mowbray in the tape recordings and by the schedule of the DOCS documents and by other reasonable inference, that the Yasmar Children’s Court ruled on the general area of Martinreyes’s mental state.
Had the Crown on the appeal advised that this or any portion of the data existed, it would have certainly led to an application for a subpoena for documents on the same basis as that against the Police in R v Saleam (1989) 16 NSWLR 14.
I note that the High Court Of Australia has found that the idea of prosecutorial misconduct extends to the agents of the prosecution who withhold evidence from the Crown advocates and the defence.
In M v The Queen (1994) 181 CLR 487 at 494;  HCA 63 at  the High Court said:
In order for there to be a fair trial the prosecution is obliged to disclose to the defence all material that is available to it which is relevant or possibly relevant to any issue in the case.  The duty of disclosure includes the obligation to make enquiry to ascertain whether discoverable matter exists and to ensure its preservation.  This obviously includes material which goes to the credit of prosecution witnesses. It may include for example, a previous inconsistent statement, or any other matter which is adverse to the character of a prosecution witness. [24}
In Mallard v The Queen  HCA 68; (2005) 224 CLR 125; (2005) 222 ALR 236; (2005) 80 ALJR 160, the court has effectively concluded that::
The review of the approach of courts, in national and international jurisdiction, indicates the growth of the insistence of the law, particularly in countries observing the accusatorial form of criminal trial, of the requirement that the prosecution may not suppress evidence in its possession, or available to it, material to the contested issues in the trial. It must ordinarily provide such evidence to the defence. Especially is this so where the material evidence may cast a significant light on the credibility or reliability of material prosecution witnesses or the acceptability and truthfulness of exculpatory evidence by or for the accused.
The failure of the Special Branch, the arresting police and the Crown to disclose any information on Martinreyes’s Yasmar Children’s Cout case was an error which lies at the core of this miscarriage of justice.
According to the High Court in Grey v R  HCA 65 (2001) 184 ALR 593::
“It is not the purpose of the proviso to substitute for trial by jury, in effect, trial with the Court of Criminal Appeal as the tribunal of fact.”
It is not for the appellate courts to speculate about the impact of potentially exculpatory evidence that was not disclosed..
The decision in Grey made it clear that for there to be a fair trial the prosecution is obliged to disclose to the defence all material that is available to it and which is relevant or possibly relevant to any issue in the case.
The duty of disclosure includes the obligation on the prosecution to make inquiry to ascertain whether discoverable matter exists, and to ensure its preservation. Even an innocent or inadvertent failure to disclose relevant material may nonetheless constitute a miscarriage of justice.
For these purposes, non-disclosure by the prosecution includes any non-disclosure by the police and any others who may assist the prosecution.
Even where the prosecutor was unaware of the information or the fact of non-disclosure, such a failure by other persons still counts as a prosecutorial non-disclosure.
The point of appellate review is not to discover whether there was misconduct by the prosecution or anybody else. It is to determine whether the non-disclosed material was relevant to the prosecution or defence case. If it was and it could have affected the jury’s decision, then the appellate court must allow the appeal.
The defence lawyer should not be put in the position of having to try to find out in front of the jury if such material exists.
As was said in one of the appeal cases, there is no reason why the defence in a criminal trial should be obliged to ‘fossick for information’ of this kind, to which it is entitled.
Indeed, there may have been in existence facts or evidence that were either ignored or overlooked by the defence. In this respect, it is important to bear in mind that where a miscarriage of justice is said to arise from a failure of process, it is the process that is judged, not the performance of the participants in the process.
Where the conduct of counsel is said to give rise to a miscarriage of justice, it is what was done or omitted that is of significance, rather than why that occurred.
So, while explanations, excuses or justifications giving rise to any non-disclosure might be relevant to a disciplinary inquiry, they are not relevant to an appellate court.
It is not uncommon in such cases for prosecutors to minimise or trivialise the possible effects of any non-disclosure on either their case or the defence case.
But this is a sword that cuts both ways. Prosecutors are not in a good position to assess what possible use the defence might make of any such information. And the minimal effect argument is a very poor explanation for holding something back in a case, and a very good reason for handing it over.
Of course, in the present matter, the misconduct occurred on the way to the Court of Criminal Appeal and then before the Court .It was at the appeal that the Crown had a clear duty to disclose and the Court had limited powers, not to retry the whole case, but to quash the convictions and order a retrial if it found the Yasmar / DOCS material challenged the essential credibility of Martinreyes.
It is said here that the Attorney General may look at all of the circumstances behind the suppression of evidence and how it occurred. The Attorney General may conclude that the appeal probably miscarried and it is for the Attorney General to determine the mode of redress (I make a submission on this).
Some things must have been reasonably understood by the Special Branch in 1988 – 1989:
if the material was produced to the Court of Criminal Appeal, then the convictions may have been quashed and a retrial ordered; but further:
(ii) that a retrial might never result in convictions if information about the mental state of Martinreyes and other credit material from the DOCS cases was available to the defence
(iii)the Director of Public Prosecutions might withdraw the charges in view of these things and because of other material about the perjury allegations I had also made against Martinreyes (as below)
None of this was what Special Branch would have desired. The Special Branch desired I be imprisoned for something (as below).
I suggest to the Attorney General that motive, means and opportunity existed at the Special Branch to conceal the evidence and to mis-instruct all the prosecutorial agencies.
I shall refer in detail to specific Special Branch conduct shortly.
2. The Facts And The Three Sets Of Documents
a. The Yasmar Children’s Court File
The Yasmar Children’s Court file must reasonably contain transcript, statements, reports and other material. It is likely that some of this material would of itself have been inadmissible in the appeal, but would have been material that could have allowed the production of admissible evidence.
I note significant points. Betty Mowbray (Appendix C) refers to Martinreyes’s solicitor withdrawing from the Yasmar case because she was falsely told by her client that the family was of Spanish origin. Reasonably, the solicitor was disinclined to present a case (or any part of a case) she knew to be false. I have concluded that the case was very much about the delusional life lived by Martinreyes. The Spanish issue in this context demonstrates the contempt that Martinreyes had for any legal process and her desire to live out her delusion (and other delusions?) wherever she chose.
From what Martinreyes and Mowbray said to me, some of the material of credit and collateral relevance from the trial became the basis of the attack upon Martinreyes over child custody. This material would involve the Spanish ancestry issue, the paternity of her children, her age and her mental health.It seems that a psychiatric report was done. Martinreyes denied in 2001 before the Administrative Decisions Tribunal ever knowing the psychiatrist) and other evidence was advanced which in combination - saw her relieved of the custody of her children. In documents provided in the Tribunal (and in our taped telephone conversation), Martinreyes claimed that I had organized the police raid on her home and did so out or revenge. That latter was absurd. She even said before the Tribunal that I wanted the DOCS files so I could prosecute her for perjury, She not only understood the bones of my purpose but seemed to be saying that it was possible.
Martinreyes denied under oath at the trial some of the very matters that were determined against her at Yasmar. As I have said elsewhere, our system has produced the odd effect of two verdicts
Nonetheless, on this application, the Yasmar case is best appreciated through the prism of the DOCS files.
I do note that there may be sworn material on the Yasmar transcript which would have been admissible and which would still be admissible in any inquiry proceeding and for your current purposes. This evidence would have arisen from the material held on the DOCS files.
b. The DOCS Files
The DOCS files were the subject of a Freedom of Information request. As the ADT decision explains, I asked for material that would establish Martinreyes’s assertion of Spanish nationality, Martinreyes’s mental health, the paternity of the Martinreyes children, the given age of Martinreyes on any document, any document which referred to me and the criminal case, any document that revealed improper, immoral or perverse conduct on the part of Mratinreyes. See: Saleam -v- Director General, Department of Community Services and Ors  NSWADT 41 at paragraph 6.
My request brought contact with Mr. David Croke, then a solicitor with DOCS.. Mr. Croke was subsequently the Registrar at the Local Court Family Matters at St. James and was later the Registrar of the Children’s Court at Parramatta.
In response to my request, Mr. Croke was able to identity some 350 pages of material. He produced a schedule of the material.
In the years around 2001, Mr. Croke became very familiar with the material Mr. Croke made the decision that the papers should be duly provided to me subject to standard objections from affected parties.
There has been some argument over what rights Mr. Croke had to make the decision to release these papers. However, Mr. Croke said he had read these papers. I had at least two telephone conversations with Mr. Croke in 2000 - 2001 and he asked me a number of questions about the evidence of Catalina Martinreyes and how I thought these documents may affect my future proceedings to overturn my convictions, and how knowledge about the existence of the DOCS case in 1988 might have affected the proceedings in the past. I provided answers. Mr. Croke did use words to the effect: “I would have thought these papers were very relevant; you should have had them”; “they are relevant if you are going back to Court”.
Although the content of the material is not known, it is significant that Mr. Croke was able to group them as he had and say what he had said.
I met Mr. Croke again in the Registry of the Local Court Family Matters at St. James in 2003. I told Mr. Croke that my case for the DOCS papers had been lost in the Administrative Decisions Tribunal. He said words to the effect that he was “surprised”. I reminded him of his earlier words about the DOCS papers. He said words that confirmed his earlier opinion. He said words to the effect that he “would give evidence” in the Supreme Court if subpoenaed."
I have corresponded with Mr. Croke since 2003, but he has not replied. I believe he would confirm his previous view of the DOCS papers if compelled by proper process, or if requested by the Attorney General.
Mr. Croke finds himself in a position analogous to that of the police officer referred to in R v Saleam (1989) 16 NSWLR 14. That officer attested that she saw certain “anomalies” in the material of the police investigation into my Ombudsman’s complaint. Regrettably, the material in that file did not support the appeal. Nonetheless, I submit that the present circumstance of Mr. Croke imposes itself upon the logic of the former proceeding which had allowed a subpoena to issue for the file. Of course, we are past that now. Yet, Mr. Croke has seen and evaluated material in terms of a criminal proceeding. He is a credible person in the administration of justice in New South Wales. His evaluation favours me. This is a proper foundation for the intervention of the Attorney General.
I submit that had the evidence of a DOCS officer such as Mr. Croke been available whilst the appeal process was extant (coupled with the very knowledge that such a DOCS case existed), it could be concluded that the Court of Criminal Appeal would have allowed a subpoena to issue, received and assessed the material to determine whether it was “on the cards” that the material would have assisted the appeal. The Court may have determined the “legitimate forensic purpose” of any subpoena for production – in my favour.
I say that the appeal process reasonably miscarried as fresh evidence was denied to the case.
I would expect that it may be put to you by some at the Crown Solicitor’s Office who have dealt with my application to the Supreme Court and my assorted actions in the Administrative Decisions Tribunal, the material in the file could not have grounded the appeal in any case as it was only credit material and no miscarriage of justice could have occurred. I would reject that absolutely. I certainly reject this notion when it becomes clear that the Crown had knowledge of these matters and denied them to my counsel on the appeal.
The question of Martinreyes’s mental illness goes well beyond any question of ‘credit’ as usually defined. It goes to the essential credibility of the witness as such and to every part of the evidence which could be argued to have been vitiated by her particular disorders. Material on these issues was certainly admissible on the appeal.
In R v Saleam (1989) 16 NSWLR 14, it was said:
“The test is whether that material is properly capable of acceptance, and if so accepted would so affect such credit that, having regard to the part played in the trial by the evidence of that witness, it is likely that a jury would have arrived at a different verdict.”
I have discussed this issue above with reference to certain High Court of Australia decisions. I say that the Court Of Criminal Appeal in 1988, in view of its ruling on the Ombudsman’s file and the contemporaneous nature of all the material, would have been nothing other than consistent and granted access to the Yasmar and DOCS files.
I submit that the new material should be reviewed by you on two bases:
(i) its evidentiary content
(ii) whether the absence and denial of this evidence from the appeal caused that process to miscarry.
The review should also extend to:
(iii) why the Crown did not advise the Supreme Court during my inquiry application as to its knowledge of the material.
I shall deal with the evidentiary matters and after examining how it was that this material was concealed from view.
c. The Special Branch File Of Catalina Martinreyes And Related Police And Prosecution Matters
In August 1988 – September 1988, I was the subject of ‘Operation Odessa’, a Special Branch operation which was designed to investigate me and the political organisation I then directed - National Action - over various specific offences and other possible breaches of the law. It has always been my ‘operational’ understanding that New South Wales Police were instructed to provide to the Special Branch any information which came to their attention regarding me.
I append as Folio K a copy of some operations papers of that period from the Special Branch File of Terrence J. Cooksley
I had it demonstrated in the period 1988 – 1989, that any matter affecting me which involved police, was always referred to the attention of Special Branch; indeed, my personal file suggests that policy at different points over many years. The Cooksley documents presented to you here imply this too.
At the relevant time in 1988 when I was looking for new evidence to defeat the convictions won against me by Martinreyes, the Special Branch was looking for material to support a prosecution against me (or at least my associates) for criminal offences. It might be fairly argued that assisting me in any way to defeat the former, would not be fulfilling the plan of the latter. Essentially, the Special Branch had no interest in assisting me to defeat my convictions. The finding of a Royal Commission,that this organisation was institutionally corrupt, collaterally supports that proposition.
Significantly perhaps, the operation against me revealed in the Cooksley file was commenced on August 23 1988, virtually at he same moment that Martinreyes’s home was raided by police. I have some reason to believe Martinreyes’s home was raided on August 28.
I also advise that from the time of Operation Odessa, through to my imprisonment in 1991 on unrelated matters, one officer figured as a protagonist – Neville George Ireland. He rose to be the last Commander of Special Branch. In March 1997, before the Royal Commission Into The New South Wales Police Service, he confessed to corruption. From another source, I am reliably informed that Detective Ireland had a meeting with Martinreyes in late April or early May 1989.
I can advise you that I was interviewed at length by Royal Commission officers in March 1997, concerning my allegations of corrupt conduct against Ireland. In many other ways, our relationship was poisonous. If any Special Branch officers had any knowledge of the Yasmar Children’s Court case and so forth, Detective Ireland would certainly have been one of them. I say that his Duty Book of the period may reveal enquiries about Martinreyes.
When I applied for the Special Branch file on Martinreyes, I made my request narrow and related it to my criminal convictions at issue.
I requested documents relating to Martinreyes’s date of birth, the police raid on her premises in August 1988, an interview with Neville Ireland, any material relating to the court case at issue, anything about the mental health of Martinreyes, anything about the alleged Spanish ancestry of Martinreyes, and any correspondence between police and the prosecutorial authorities about any matter above.
In a statement of Mr. David Maxwell Brumby of the Archives Unit of the NSW Police Force at paragraph 19, as attached to Police submissions in the Administrative Decisions Tribunal (Appendix H), it was stated that the Special Branch file on Martinreyes referred to a report of a police station. I understand this to be the Redfern Police Station which supervised the Waterloo area where she lived and it is likely it refers to the raid on her home. In that regard, I note the time period of my information-application and its terms. I note at paragraph 23, Mr. Brumby says that the document was forwarded to Special Branch – “and another organisation.”,Whilst this could mean the Australian Security Intelligence Organisation (ASIO), it might more certainly be the Solicitor for Public Prosecutions, or similar. Normally, police stations would not have corresponded directly with ASIO. It was practice that they only do so through the Commissioner of Police, although in effect this meant through the Special Branch. I invite you to accept these reasonable conclusions.
The Martinreyes raid matter would have been one of those normal things of which the Special Branch would have been advised.
At no point did the Special Branch advise me or Malcolm McGregor of this fact, let alone what arose from it. I do not know if they advised the arresting officers. Certainly, the arresting officers told us nothing either.
I suggest that the Special Branch did render some sort of advice to the (then) Solicitor for Public Prosecutions, the Director of Public Prosecutions and the Crown advocate on the appeal. It may be that this advice was highly sanitised and did not cause these officers to make the information available to the defence. Nonetheless, it should be considered that they had a duty to disclose it. This advice, in view of the content of the Special Branch file on Martinreyes may not have been by formal letter, as nothing of that sort putatively appears in the file. It may depend what is written on the various occurrence sheets. It may have been an oral notification.
It is fairly clear on its face that Police made an error in respect of the first sets of correspondence on the Freedom of Information application for the Martinreyes' Special Branch file. This was tacitly conceded before the Tribunal. If the intention contained in the Submissions of September 1 2010 had become not to describe the documents in any way that would tend to reveal to me their contents, the first correspondence has made admissions that documents are available as may meet the request and gave the exemptions claimed for them. Further, in a statement (undated) by Mr. Brumby, material was provided which described the Special Branch file of Catalina Martinreyes (number 9/87) without necessarily describing the documents sought. I read this statement together with the earlier Police responses. I draw my conclusions which I invite you to accept.
In 1987, I complained against Catalina Martinreyes for perjury. I say that this relates directly to the matter of the concealed evidence. The perjury complaint was seen by a senior police officer (Sergeant Mason of Police Legal Services) as “serious”. Two police officers (Sergeant Edwards and Senior Constable Doran) were detailed to investigate the allegations and to report to the (then) Solicitor for Public Prosecutions. These officers wrote an initial report dated May 1988 which claimed I was someone discontented with our legal system and they were not disposed to carry out such an investigation lest it undermine the very system of trail by jury. However, they also asked for instructions. The Solicitor for Public Prosecutions seems never to have replied to these police despite repeated requests on how to proceed. I note that the solicitor who seemingly handled this matter was Nanette Williams, now a senior Crown Prosecutor. Yet, it was also Nanette Williams who had initially ‘ordered’ the investigation. I have long concluded that other prosecutorial staff played a deeper role in this affair.
I append as Appendix L a copy of some New South Wales Police and Solicitor of Public Prosecutions papers on an allegation of perjury against Catalina Martinreyes
The documents establish a chain of events which, when examined against a small sheaf of papers from the Director of Public Prosecutions (Appendix L), point to disingenuous conduct.
In these latter papers, the Director’s office was suggesting the police will carry out enquiries and would act properly, at the very moment when the Solicitor for Public Prosecutions and the Director of Public Prosecutions were refusing to provide instructions. It was even suggested falsely that perjury matters were the preserve of the Commissioner of Police.That was not the law.
On balance of probabilities, you may decide that there was a failure to determine the allegations and that the failure was likely systemic as much as circumstantial. The allegation of perjury was a matter for Police to act upon with advice from the Solicitor for Public Prosecutions. As I made fairly clear in my own draft Application To The Supreme Court for an inquiry into my convictions, there was probably evidence which could have sustained some perjury and/or false swearing charges. But charges were not brought, because the investigation was not completed. My complaint was directed against a State witness. There was no interest for the State in prosecuting its own witness; this would have undermined her credibilityIn The Application Of James Saleam, Supreme Court, (2005) (unpublished), at paragraphs 7, 8), Justice Hidden noted that I complained and still complain .about the perjury investigation whose details he summed up. So the matter stood necessarily unresolved. Ultimately, I was told by the Director of Public Prosecutions in August 1988 and again in March 1989 to pass all material to my counsel for the appeal. McGregor advised that what we had would not ground the appeal.
The circular conduct of prosecutorial authorities discredits the administration of justice. In The Application Of James Saleam,it is also clear at 12 – 25 and 40 – 49 ,that Justice Hidden found material that impugned part of Martinreyes’s evidence (of course he did not find that it was sufficient to disturb the verdicts), but that is not my point to you. Rather it is that perjury has been an offence which our system is loath to prosecute. Historically, it is usually State witnesses who commit the crime and our accusatorial / adversary system has no mechanism to really disentangle evidence and punish for transgressions. There are few prosecutions for perjury although it is probably systemic. I do not say this simply because of this case, although the present case highlights the problem.
If we now say, as the Crown Solicitors Office undoubtedly would, that the material could not impugn the verdicts, it still means Martinreyes could have lawfully suffered a penalty for some of the false evidence she gave. By not pursuing the perjury investigation the accusatorial / adversarial legal regime, simply refused then to consider the Impact of Martinreyes’s false evidence. It still refuses to confront her falsehoods except by saying that they do not impugn the verdicts. I say this is wilful blindness.
The intensity of police and other prosecutions’ activity around me in 1988 makes it all but impossible that the facts of the Children’s Court and DOCS matters were unknown. These matters discredited the Crown’s only witness and the impulse was to conceal the material. Ultimately, by telling me to produce whatever I wanted to the Court of Criminal Appeal, the Director of Public Prosecutions wiped his hands of the matter.
The Special Branch documents may not have been admissible in evidence, but they would have allowed further enquiries at the appeal to form admissible evidence. I say that the absence of this information from the appeal certainly contributed to a miscarriage of justice.
The public interest in your review of the information lies in the administration of justice area – the overturn of false convictions. This material would have been one crucial link in a chain of material that showed that Martinreyes’s life was falling apart from even before the trial began. It may suggest that she was exhibiting substantive signs of the mental instability levied as an allegation against her at the trial - before the trial even began. The Crown case depended entirely upon Martinreyes. The attack that could have been launched via this information was one of essential credibility, a credit attack at the highest range.
I shall deal with the effect of the Special Branch and other Police conduct and its impact upon my case in the next section.
The New Evidence And Its Impact Upon The Appeal Process
I accept that the Court of Criminal Appeal has circumscribed rights on fresh evidence matters, but it was empowered to order a retrial: if the new evidence was capable of belief and so affected the evidence of a prosecution witness that a jury could have found an accused ‘not guilty’; or perhaps, if the new evidence demonstrated some other likely miscarriage of justice..
Had the Crown Advocate revealed the information, the defence would have acted appropriately.
Of course, if the defence had found out through its own efforts that the Yasmar case had occurred, then it would still have looked further to produce admissible material. Had it become known that there was any attempt on the part of any police to conceal this material, a useful point could have been made.
It is not the Attorney General’s function to second guess the Court of Criminal Appeal, nonetheless it is possible and lawful to draw conclusions about the impact of new evidence upon either a trial or an appeal. If that is not so, then in special cases, it would not be possible for the Attorney General to remit “the whole case” after a review back to the Court of Criminal Appeal to treat as a veritable second appeal.
I now deal with the evidence that could have been available. I would take you to the commentary of Betty Mowbray who probably best sets out what the Yasmar Children’s Court and DOCS files reasonably contain.
I reason that the Crown Solicitor’s Office will say to you (as they said to Justice Hidden) that Betty Mowbray was not on good terms with Martinreyes and that whatever she said would suggest bias; yet, it is equally true she was given custody of the children and must have impressed the Yasmar Children’s Court as a person of quality and credibility.. Even so, Mowbray’s statements are corroborated by David Croke’s cautious comments and by the schedule he provided to the ADT and other material I have produced. For the record, I have always maintained that Martinreyes said some things to me in accordance with what Mowbray said.
Betty Mowbray said clearly that her daughter fantasised a Spanish identity which Martinreyes denied at the trial). She said Martinreyes lied to her own counsel that she was Spanish and caused that person to withdraw from the Yasmar case. She says that her daughter suffered from mental illness and had refused treatment. She said that his illness developed as an adolescent and that she had experienced at least one peculiar effect of the illness over time. She said that George Kassis fathered one of Martinreyes's children and Ralph Waites fathered the other two (Martinreyes had reversed that at the trial). Mrs. Mowbray also appeared to know the story that Martinreyesas pregnant to someone in 1984 and that I had told her this.
Parts of the material to which Mowbray referred (I have added to it since 1988) was seen on the application to the Supreme Court as material of note in The Application Of James Saleam, Supreme Court, (2005) (unpublished), at paragraphs 12 – 25, 40 – 49 and 72, but not sufficient to disturb the verdicts. However, the salient point which would have empowered this evidence and raised it to a new level at the Court of Criminal Appeal would have been the matter of mental illness.
The suggestion of mental illness in Martinreyes had been part of the defence case at the trial. However, it had no substantive but only an inferential, basis. The DOCS and Yasmar Children’s Court material would have grounded that point.
The matter of mental illness (and it must be a serious set of disorders) would have been something that the Court of Criminal Appeal could have fairly ignored.
Further: the matter of mental illness must change the entire tenor of the trial evidence. The credit material would have taken on a new significance and the defence would have held that the accusation of robbery against me and Peter Coleman was part of a fantasy. The credit matter would have pointed to a long standing pattern of disturbance, of living out falsehoods for advantages when the subject was calm, or for psychological / pathological) reasons when the subject was registering episodic disturbance. Further, some of the credit material was part of Mratinreyes’s self-creation of her own veracity and linked to phases of both sides’ descriptions of the robbery and the fraud. The defence would have held that the discursive certainty and structure of the Martinreyes evidence, was reflective of a vehemence and cogency born of the irrational. It might reasonably have been added that once a falsehood was asserted the rational Martinreyes could not repudiate it for fear of prosecution or psychiatric detention and hence a ‘rational’ (sic) motive existed to go on with the story.
It is open to accept that had the Court of Criminal Appeal heard the evidence and the arguments, it would have quashed the convictions and ordered a retrial.
I submit that the matter of Martinreyes’s mental illness is the very core question of this application to you, of the case itself at every point.
The State cannot rely upon a witness who was mentally ill and about whom such a proof exists, albeit concealed at this time in certain State records. If I can make such a claim in public with a semblance of credible supportive material and without a proper official response, is to bring justice itself into actual disrepute.
It is my submission that the office of Attorney General exists to ensure the proper workings of the justice system and the right of an accused and an appellant to fair process.
If it is shown that the Special Branch concealed the information and the Crown complied in some manner or another, then I did not receive a fair appeal. In that case, there is definitely a perverse set of individuals who could be damaged by these revelations. I doubt they would assist you in proper enquiries.
If the appeal is shown not to heave been fair, then it is submitted that the Attorney General should ultimately act to move the Court of Criminal Appeal to quash the convictions.
The New Evidence And Its Impact Upon The Application To The Supreme Court
It is clear from the last submission that the issue of the fairness of the appeal process was a matter which the Supreme Court could have acted on to grant an inquiry into my convictions. I am saying that it would not only be a question of the Yasmar Children’s Court and the DOCS evidence that creates a “doubt or question” about the trial evidence, but how this evidence was concealed by Special Branch, other police and other authorities..
It is my complaint that the Crown Solicitor’s Office failed to act fairly and properly during my application to the Supreme Court. Given the Crown Solicitor’s Office was aware of the general nature of the Yasmar Children’s Court and DOCS files, the Crown had an obligation of disclosure. The Crown advocate had the responsibility to inform the Court of whatever was known and what had ever been done about it. Of course, this did not occur.
It is also certain, given that I appeared openly in the Administrative Decisions Tribunal, both on the DOCS files’ case and on a matter relating to my own Special Branch file where things were said about the Martinreyes case in 2001 - 2002, that the NSW Police were aware of my pending application to the Supreme Court. At no point of time was I told anything by the Police.
The Crown Solicitor’s Office was aware that my application in the Administrative Decisions Tribunal had failed to produce the DOCS papers. The Crown merely told Justice Hidden in submissions that my appeal had failed. It implied that my assertions about the files were improper, that the ADT in determining I had no right to them,had in some way discounted their evidentiary relevance to the Supreme Court application. That compounds the falsity.
If the inquiry application is shown not to heave been fair, then it is submitted that the Attorney General should conduct such enquiries as are relevant and take further action as is fair and proper.
Conclusions And The Course Of Action
I submit that I have made out a case for your intervention in this matter. My claim of bad faith from State authorities is a serious one.
I submit that the failure of both the police and the prosecutorial agencies to disclose anything about the Yasmar Children’s Court case and the DOCS material prior to my appeal as a substantial miscarriage of justice. This falsity was compounded when I appeared in the Administrative Decisions Tribunal at various times after 2001 and at the Supreme Court 2002 - 2005..
I regard this failure to disclose as an effective conspiracy howsoever any agent of it presents his behaviour. I regard this false conduct as a systemic failure to deal with evidence outside of the accusatorial / adversarial system. I regard the Special Branch behaviour as criminal.
It is my information that the Crown Solicitor’s Office maintains a special archive on me. It is a resource that can be utilised to frustrate any action I might launch with ‘legal’ and factual’ argument (sic). I am informed that it is updated continually. It may be the position that Crown intervention in any matter where I appear seems to the protagonist simply adversarial in nature and unremarkable and probably as others have become socialised into this normative conduct, they would appreciate their role as simply upholding proper convictions against an argumentative person. As time removes Crown Solicitor’s officers from those who committed the original ‘offence’ of non disclosure, the effect and quality of the original conduct are not perceived for what it was about.
It is the applicant’s position that the Special Branch understood the Yasmar Children’s Court matter in a strategic way. This corrupt organisation did what it was compelled by its nature to do: it did not advise my counsel of this matter; but I believe it did say something to the Solicitor for Public Prosecutions and the Director of Public Prosecutions for the advice of the counsel representing the Crown on the appeal and to cover itself against any possible suggestion it was absolutely withholding information. I verily believe that the Special Branch had plans for my prosecution and anticipated it would be dealing with the Crown regularly. It was establishing propriety – by telling them something. Clearly, I do not know what they said or how much they revealed. As stated, the Crown advocate did not advise my counsel of any of this either. That may indicate that he had formed a view from what he was told that there was nothing relevant to reveal.
That the Solicitor for Public Prosecutions ignored the Police request for instructions in the perjury matter and the Director of Public Prosecutions misinformed me as to their role in the matter (Appendix L), suggests their knowledge went somewhat deeper than that of the Crown advocate.
I concluded long ago that the case had become a mess for the prosecutorial authorities, particularly in view too of my post conviction ancillary confession to knowledge of Martinreyes’s original crime (see The Application Of James Saleam, paragraph 5), and it may have come to be considered by the Director of Public Prosecutions that imprisonment without further ado was the easier course.
Unfortunately for the State, this case has not gone away. It never will.
As has occurred in the past, everywhere I have ventilated these matters, the Crown Solicitor’s Office argues against any production to me of confidential matter and so forth and tribunals of all sorts can be expected to uphold their claims.
None of this deals with the very simple core question: what do the papers at issue really contain? It is the quality of the documents, even more than the attempt to conceal them, which is the substantive question. I have already described the evidentiary content of the documents and by reference to the judgement in The Application Of James Saleam, their significance. The matter of Martinreyes’s mental illness would be final in this case.
(a) Orders the production of the disputed papers of the Yasmar Children’s Court, the Department of Community Services and the Police Special Branch.
(b) Appoints an independent counsel not hitherto connected with the case to review these papers.
(c) If a conclusion is reached that a miscarriage of justice may have occurred to take whatever action is considered proper to resolve the affair.
I am prepared to cooperate in full with your officers.
It is my view that ultimately this case should be remitted to the Court of Criminal Appeal, if evidence of non disclosure of probative material at the original appeal, is found.
Appendix A. The Application Of James Saleam, Supreme Court, (2005) (unpublished)
Appendix B a transcript of my telephone conversation with Catalina
Appendix C a transcript of my telephone conversation with Betty Mary Mowbray
Appendix D a copy of the judgment Saleam -v- Director General, Department of Community Services and Os.  NSWADT 41
Appendix E a copy of the schedule of the DOCS papers as before the Administrative Decisions Tribunal
Appendix F a copy of the judgment of the Administrative Decisions Tribunal second application for the material, 2011.
Appendix G a copy of the letter refusing access to the Yasmar Children’s Court file
Appendix H a copy of various submissions on behalf of the Commissioner Of Police
;Appendix I a copy of the judgement the Administrative Decisions Tribunal Saleam v Registrar of Births, Deaths & Marriages  NSWADT 79
AppendixJ a copy of Saleam -v- Director General, Department of Community Services and Ors  NSWADTAP 30
Appendix K a copy of some operations papers from the Special Branch File of Terrence J. Cooksley
Appendix L a copy of some papers relating to my allegation of perjury against Catalina Martinreyes