Pardon Me:
The Anatomy Of An Australian Political Trial.
James Saleam. January 27 1999
Section One
Prosecution Case/Defence Case:
An Abstract.
(The Cases As Presented At The Trial)
So: what are the raw "facts" in the case?
To best explain to you what the State alleged against me - and what
I claimed were the actual facts - this abstract explains the two "sides".
Australia inherited the British "adversary system" of justice where two
sides (Prosecution and Defence) have a verbal joust with a jury empanelled
to supposedly determine guilt or innocence. The truth is not always found,
and the law textbooks tell us that in any case the system is not designed
to find the truth, but to weigh the evidence. As shall become very clear,
the system failed. The truth lay outside of the evidence.
For me, the night of January 27 1989 was a night like many others. I was
at the offices of Australian National Action, a building owned by me. By midnight, the crime had been committed for which I would go to prison.
Let's see what it's all about.
I shall allow here for certain contradictions in the Prosecution case;
in presenting this abstract I offer the Prosecution case as it was
reasonably understood. The Defence case was all but - consistent.
The material here refers to the two conflicting versions of the
actual crime and not to any material concerning the trial process or the
police investigation (that shall be referred to below).
(a) Prosecution Version.
Saleam obtained the address of crime victim, Eddie Funde, from David
Morley (alias Brian Clark), a sort of pro-South African mystery man in
early January 1989. Funde was the Australian Representative of the African National Congress residing at 40 Tahlee Street, Croydon (a Sydney suburb).
A week prior to the offence date, Saleam, in a phone conversation with
Jason Roderick Frost, requested his attendance at 725 Princes Highway,
Tempe (the offices of the Australian National Action organization) on
Friday January 27 1989. Saleam was the Chairman of the organization
and Frost a 21 year old member.
Another member of Australian National Action, Wayne David Smith, a
few days prior to the offence, contacted another supporter, Michael
George White, also requesting his attendance at the Tempe offices on 27
January 1989.
Frost and White, who did not know each other before that evening,
arrived (Frost at about 7 p.m.; White perhaps - 2 hours later).
Neither knew what would transpire. At some point after 9 p.m., Saleam and
Smith produced a pump action shotgun, ammunition, a balaclava, a map of
Funde's home, an address and informed them their task was to discharge the weapon at the premises around midnight.
They agreed - even if beguiled. Smith and White obscured the number plates of White's vehicle with oil and dirt. Saleam gave Frost $8 to spend on alcohol prior to the commission of the offence. The
two men decamped around 10 p.m. and drove to Funde's address to
reconnoitre the area; they adjourned to a hotel and had drinks. At about
11.30 p.m., they returned to the address; because of car troubles, they
opted to perform the crime earlier than instructed. Two shots were
discharged. White drove Frost to Newtown Railway Station and he continued
on to his girlfriend's home in Coogee; White returned to his home in
Camperdown. He phoned the office number of the organization, and in a prearranged signal, let the phone ring three times to indicate - success.
White then went out with some friends. Subsequently (on either Saturday or Sunday morning around lunch time), Saleam recovered the shotgun from White.
The gun was not produced in evidence.
Frost and White did not see each other again; White returned to Queensland soon afterwards.
On January 30 1989, Special Branch detectives, Neville George Ireland
and Charles Poniris, interviewed Saleam. Saleam told them how he had
obtained the Funde details and suggested "Clark" could have been an ASIO operative; Saleam told them he had been home on 27 January 1989, in company with his wife and Wayne Smith, watching movies. He gave them some documents provided by Clark.
Frost and White were properly detected and pleaded guilty to their involvement in the offence and testified accordingly at the Trial.
Smith did not stand Trial; he was murdered in unrelated circumstances on 20 April 1989, 9 days before the commencement of the Saleam Trial. The killer was Perry John Whitehouse.
(b) The Defence Case.
Saleam obtained (unsolicited) Funde's residential and vehicle details
from a person calling himself Brian Clark, on January 9 1989. Saleam
already had Funde's address. On that very day, January 9, Saleam was
interviewed by two Special Branch detectives about another matter. One
was Ireland. Saleam told Ireland that a man had offerred him Funde's
details. Saleam suspected Clark was an ASIO agent.
On January 11, Saleam told Frost about this incident. The paperwork was
freely available and Frost must have copied it. Although Frost denied at
Trial owning any shotgun, Frost owned a pump action shotgun, but did not
possess a vehicle. Sometime around January 20 (probably at a party where
they were seen together) Frost recruited White to the scheme.
On January 27 1989, at about 7.20 p.m., Frost came to the offices to
leave a membership application form; he stayed for under two hours reading
newspapers in the upstairs area of the building. After some conversation
with Saleam downstairs in the kitchen area, he left, ostensibly to go to
his girlfriend's house in Coogee. Smith was not present in the building
at any time on 27 January 1989; White was never there either. Jane Saleam
and Shane W. Rosier gave evidence in various ways corroborative of this
version of events. There was no shotgun on the premises and no conspiracy
to affect the crime.
There was no visit to the home of Michael White to recover the shotgun
and Jane Saleam corroborated this. There was a conversation with Ireland/
Poniris on 30 January 1989 but at no time was it said that Smith had been
at the offices on 27 January 1989; this was denounced as a"verbal".
The defence also produced Bradley Flowers, a personal friend of
Frost (the brother of Frost's girlfriend); Flowers said Frost had told
him well before the crime that he wanted to harm Funde and a fortnight
prior that he had the weapon and was securing a vehicle. Subsequently,
Frost told Flowers the police had pressured him to implicate Saleam.
Special Note On The Evidence.
The case for the Prosecution was one which did not contain any scientific evidence which linked either Saleam or Smith to the offence.There was no evidence from any independent witness which corroborated the evidence of
Frost and White. There was no confession; the evidence of Ireland and Poniris was not held to be corroborative (ie. of the nature of a lie indicating a consciousness of guilt) and was itself uncorroborated police evidence, never previously part of the Prosecution case, and conveniently produced in Statements supplied to the Defence the day the Trial began.
The cases of Prosecution and Defence are "oral" cases. They were mutually exclusive . If either side was untruthful, in whole or in part, it could only have been by agreement that this was so. The Jury undoubtedly pondered that, and reasonably fell back upon the adage: why would the Prosecution witnesses say these things if they were not true? This position is not a sound one upon which to base a verdict of guilty to each charge.
The Defence accused the Special Branch of crafting the evidence of
Frost and White, of conspiring to falsely convict Saleam. Because the
evidence in this case is merely partisan oral testimony, it stands as
a case fairly open to be reconsidered by Judicial review.
But the two cases were only the tip of an iceberg. The Court process
was merely the formalisation of a contest between Australian National
Action and the police Special Branch. What lay behind it all, and how
the Special Branch rampaged to produce the desired result can now be
examined.
Readers Note:
Two particular cases with some bearing on the Funde case will be
referred to in the text.
First: the case against Perry John Whitehouse for the murder of Smith. This
case created Australian criminological history, being a murder committed
while an Australian Security Intelligence Organisation transmitting device
was operating. The murder was recorded on tape!
The case was used to suggest Australian National Action was a criminal organization, whereas in fact, this crime was a fantastic but random event. By the same logic, the murder of a Labor Party member of parliament by Vietnamese members of his own party, would prove the Labor Party to be a criminal organization. That is not conceded.
Second: the case against Whitehouse for "attempt to pervert the course of justice".
Charged in October 1989, Whitehouse was accused of attempting to
persaude White to give false evidence.
A statement by White given in writing to Whitehouse at Parramatta
jail exculpated Saleam and Smith.
Because of the unique circumstances at the Trial, the contents of
this Statement were not placed into evidence.
Links to the Sections of "Pardon Me":
Main Page
Introduction
Section One
Prosecution Case/Defence Case: An Abstract. (The Cases As Presented At The Trial)
Section Two
A Political Case: A Conspiracy To Affect An Extra-Legal Result
Section Three
The "Doubt" on The Evidence At Trial: A Special Review Of The Evidence Of Prosecution/Defence.
Section Four
Michael White: The Threat In The Police Cells; The Explosion Of Credibility.
Section Five
Catherine: Gross Irregularities In The Investigation. New Material Raises Questions.
Section Six
The Role Of Neville Ireland: Questions Concerning Ireland's Evidence
And His Relationship To The Prosecution Witnesses And Their Evidence.
Section Seven
The Inadequate Appeal Process:
Doubts And Questions Raised By New Evidence And Argument At The Court Of Criminal Appeal.
Section Eight
The ASIO Operation, Special Branch And The Trial And Appeal Processes.
New Evidence And The Need For An Inquiry Into Conviction.
Section Nine
A Table Of New Evidence In Support Of A Judicial Inquiry. Explanation Of The New Material. Its Relevance.
Section Ten
Special Branch Files Opened: How They Impact On This False Process. Revelations Shatter The Guilty Verdict.