Pardon Me:
The Anatomy Of An Australian Political Trial.
James Saleam. January 27 1999


Section Two

A Political Case:
A Conspiracy To Affect An Extra-Legal Result.





That a Trial results from political disputation does not necessarily grant it the status of a "Political Trial". Nonetheless it shall become clear that my prosecution and Trial were political acts and the result was arrived at through gross irregularities and illegalities fashioned by political police agencies.

1. Essential Background

In January 1989, I was the National Chairman of Australian National Action; I was well-known for my political opinions.

I knew from media reports that around October-November 1988 various representations had been made to the NSW Attorney-General and other politicians to the effect that I and "National Action" were waging a subterranean campaign of violence against various liberal-internationalist journalists, academics and pro-immigration organizations. The supposed perception such a campaign existed produced a "National Inquiry Into Racist Violence" in 1989-91. The Report of this Inquiry stated:

"The National Inquiry Into Racist Violence was motivated by a widespread community perception that racist attacks, both verbal and physical, were on the increase. During 1988, a number of church and community leaders and other prominent anti-racists were subjected to what seemed to be a well-organized campaign to intimidate them or deter them from their activities. These violent attacks most commonly took the form of slashing car tyres, graffiti attacks on homes and places of work, bricks being thrown through windows and death threats." (Report p.6)

I was one of the persons named in the Report; it was suggested I was a "racist" (which I was not) and a suggestion was made I could have been linked to this "campaign".

Representations made to the Human Rights And Equal Opportunity Commission prior to the Inquiry, by the putative victims of this campaign, were the very basis for the initiation of the investigation. The same representations made to the NSW Attorney-General, were obviously made in the hope of securing police and other action. Although officers of the New South Wales Police Special Branch have shown great reticence throughout all my legal proceedings in stating the truth squarely - it is reasonably the position this agency was instructed to carry out an investigation of me and National Action with a view to establishing a criminal prosecution. Detective Sergeant Neville George Ireland (later Superintendent and Commander of Special Branch) was the officer appointed to this investigation.

In the months of December 1988 and January 1989 I received visits from various officers of Special Branch - Detectives Ireland, Poniris, Garvey and Georghiou. I believed then - and I most certainly still contend - I was a "target" for investigation. I considered the references of certain politicians to need for the passage of "Racial Vilification legislation" was related to a concerted attack upon National Action and similar organizations. I had no illusions as to the character of Special Branch in that period and had previously published material critical of that group; I considered I may be a target for a malicious and false prosecution.

It is also reasonably the position I was a person of some political discernment. I held two university degrees and could not be described as a person incapable of rational thought. Two points follow:

Firstly, given I was acutely aware of the investigative arms of the State probing into my activities, it would be unlikely I would become involved in the crime committed against Eddie Funde in the political climate then prevailing.

Secondly, given the various manoeverings of the Special Branch and the Human Rights and Equal Opportunity Commission in this period, I understood that there was a State interest in restraining National Action activities and/or prosecuting its members. This conditioned the manner in which I responded to the harassment of the Special Branch at each stage.

2. How I Became Involved In The Case: An Absence Of Motive.

I did not deny at Trial - nor do I deny now - that I had made mention of Eddie Funde in publications issued by National Action. I made critical references to the State's support for Funde's presence in Australia and passed comments against the African National Congress. These comments had been made at different points over a number of years. They were not contigious with the time of the attack.

As I explained in my Statement at Trial, I had had contact with a person calling himself "Brian Clark"; as it transpired his name was Morley. This man purported to be a Rhodesian veteran living in Australia. Morley claimed to operate a network which collected information on "anti-South African elements" in Australia. In October 1988 Morley came to the National Action offices and passed to me and Evan Raftery, a close supporter, information concerning Maxwell Namidzhivhanani, Representative to Australia of the Pan-African Congress. Both myself and Raftery concluded Morley was an oddity and we apprehended he may have had an ASIO connection after Namidzivhanani and his wife were arrested in Canberra and charged with various offences against Republic of South Africa Embassy property. As it transpired, we were wrong in this, but it was what we believed as of January 9 1989 when Morley attended our offices.

I recorded most of that meeting and I will be producing that tape with the Application to the Supreme Court.

Morley passed to me certain documents concerning Funde which were later tendered in evidence at the Trial. The documents included driver's licence details and car registration information; Funde's address was thence on paper inside our offices. As the Tape reveals I interrogated Morley in company with a number of other members of National Action. Whilst this was occurring I received a telephone call from Georghiou of Special Branch indicating they wished to speak with me concerning a National Action activity of the preceding week-end. The ringing sound and the interruption can be heard on the Tape. Thereafter Morley was bundled out of the building.

I associated Morley's visit with the phone call. As the Tape also reveals, I was deeply suspicious of Morley's motive and was fearful of some sort of frame-up.

When Ireland arrived with Georghiou he wanted me to provide information regarding a demonstration directed against a journalist, Marie Mohr. I declined to assist him, pointing out no offence had been committed and that I had a taped record of the incident. As Ireland was about to leave I said: "I want you to know, I've just had someone here offering me the home address of Eddie Funde of the African National Congress". Ireland said: "What did you do?" I said only: "I bundled him out of the building". The matter was left there by both sides and I believed then I had alerted Ireland to my resistance to whatever game was being played. (I deal with this subject again in Section Three of this document.)

That I believed Morley to have been some sort of agent was never denied by the Prosecution. Why I would then act upon information obtained in such suspicious circumstances, was never resolved within the parameters of the adversary system at Trial. Indeed, the Prosecution witness Frost, said (TT81-2; Record of Interview June 14 1989) that I had told him the Funde address had come from an "ASIO bloke" and that ASIO would get "the blame" for the crime. Why Frost would act on information provided from such a source - was never explained by the Prosecution either.

At Trial, the Prosecution did not take the time to explain how it was I sought to "blame" ASIO - other than by telling Special Branch on January 30 1989 that the address had come from a person I suspected of an ASIO connection (see Section 3). HOWEVER, although it was not mentioned at Trial I did do two media interviews on January 30 in which I stated I had this ASIO apprehension concerning "the person who offered me the Funde details". In early February, I spoke with two officers of ASIO who called at my offices. They asked me several questions about Morley and I explained the infirmities of Morley's various stories. ASIO may well have harboured resentments for my media comments. I said I thought Morley some sort of rogue agent; they denied he was from ASIO.

I note also Funde was a Representative for an organization recognized by the Australian Government as a de facto government for South Africa. An attack upon Funde could only have been of great concern to the foreign policy workings of the Australian Government. It would be logical to assume there was pressure for a prosecution in this case. I recognize I was a suspect. It may well be that certain forces set out to - if it became possible - ensure that I was the person to be loaded up with the organization of the offence.

When I was Sentenced, Judge Ducker said the crime was:

"..a naked act of political terrorism conceived in the mind of the prisoner and seen by him to be in accordance with and directed towards the advancement of the policies of the National Action organization.. motivated by political purposes and designed to terrify Funde and possibly others."

It has never been shown what these purposes may have been or how these purposes could have advanced the policies of National Action. The only persons to benefit from my prosecution were the political police agencies ASIO and Special Branch, the Human Rights And Equal Opportunity Commission "Inquiry", the African National Congress propagandists and Australian foreign policy makers. It would seem this naked act of political terrorism was an abject failure. But it was something never capable of serving any cause at all. Frost never claimed responsibility for it. Claiming responsibility is the trademark of all acts of "normal" political violence. Yet this never happened on any version of events.

I would say to my readers:

(a) No motive for the crime was produced by the Prosecution and that any motive centring around "blaming ASIO" is fantastic.

(b) It is clear from the Tape of the Morley conversation, it was the members of National Action who were aware of State monitoring and who were concerned at being framed for an offence.

(c) It cannot be demonstrated how this crime did any service for myself or National Action or that I ever attempted to so use it.

(d) Although, as is clear, the crime was certainly committed by Frost and White, the prosecution was organized to the advantage of particular state agencies and other parties.

3. ASIO's Political Interest In The Saleam Prosecution.

In the Australian Security Intelligence Organization Report To Parliament 1990-1, we read of (at page 37):

"..increased effort under the Politically Motivated Violence Program ...and to maintain coverage of the activities of Australian right-wing

groups with a proven history of violence ...Last year's Report commented on the upsurge of violence from racist groups in Australia reflected in a large number of arrests and prosecutions. During 1990- 91 ASIO achieved operational success against violent racist groups."

The Report also referred to (at page 37):

"..the arrests of members of racist right groups concluding extensive investigations conducted jointly with police."

It is also a matter of public record that the Director-General of ASIO, Mr. David Sadlier, has referred to the direction of ASIO's resources to the "monitoring" (and hampering?) of the "racist" and nationalist organizations. It is reasonably clear ASIO - since 1989 - has been heavily involved in this type of work.

In respect of the period 1989-91, two organizations were the meat of ASIO's interest - the Australian Nationalists Movement and Australian National Action.

The open use of a term "operational success" (which shall be discussed further in this Application), begs many questions. It is reasonably clear the "arrests" of "members of racist right groups" (for the purposes of the argument I shall accept the epithet) were indeed the product of "investigations conducted jointly with police".

I was charged with the Funde crime in 1989 by Special Branch police. ASIO had clear interests in this case from the beginning. It was a politically motivated violence case involving a quasi-diplomat who had the favour of the Australian government. Security agencies operate "programs" to achieve multifaceted results. One expert on these programs wrote:

"It is the autonomous operation of Special Branch (when compared with other units within a disciplined force), its symbiotic relationship with other police agencies and its specific ideological/political motivation, which makes it unique within the State's mechanics of social control. As the "Seary Operation" illustrates, its potential to achieve an orchestrated ideological victory in terms of a particular police investigation is significant. And through a combination of traditional police powers and overt political intention, it represents an essential conduit through which the "independent" process of political intelligence is advanced."

(Mark Findlay, Legal Service Bulletin, December 1989, p.271)

My case presents the model explicated by Findlay.

My Prosecution was a circular prophesy. While the Human Rights and Equal Opportunity Commission was pursuing its "National Inquiry Into Racist Violence" to raise public awareness of a problem such that legislative action could be recommended, Special Branch was investigating (with ASIO assistance) one major case of such violence. My arrest would justify the original propaganda drive and the final successful prosecution would restrict the activities of the targetted group. Legislative action would be justified. And so forth.

That in 1990-91, ASIO increased the level of its interest in my case may be confirmed by its decision to undertake an extensive electronic surveillance operation at the premises of National Action. This action would obviously be linked to its on-going Politically Motivated Violence Program.

I say to my readers:

(a) The Saleam Prosecution must have been an aspect of the Politically Motivated Violence Program of ASIO; considerable pressures would have operated upon the Special Branch to ensure the credibility of probative evidence. There would therefore have been a type of unhealthy pressure upon the police to ensure the conviction of Saleam and Smith.

(b) Since ASIO had a partisan interest in the case at each point throughout 1989-91 - and given the resources clearly directed at the target - it is clear pressure would have existed to assist the Special Branch in winning convictions.

(4) Detective Superintendent Ireland's Political/Personal Malice: Substantial Factors In The Saleam/Smith Prosecution.

The malice of police officers against particular suspects, and the formation of vendettas which result in particular prosecutions - are known factors in the New South Wales legal culture.

In this case, Detective Superintendent Ireland had a demonstrable malice (independent of the material produced in the Section "Catherine"). It is also the probable situation that the methods I chose to thwart Ireland's supposed "investigations" contributed in symbiosis to the development of this Detective's rancour.

There were a number of meetings between Ireland and me prior to my charging with the Funde offences (October 13 1989):

(a) December 1988 (date approx. Dec. 10): Ireland was present at 725 Princes Highway Tempe during a discussion between myself and two Special Branch detectives; the subject was alleged phone threats made against me by a person - Simon Lain - and my suggestion this person was armed with a shotgun with intent to injure a public figure.

(b) January 9 1989: Ireland attended the Tempe premises with Detective Georghiou to interview me regarding a demonstration at the home of Marie Mohr, a reporter for Current Affair. He demanded a tape recording of the event (which established no wrongdoing on the part of my supporters). I refused to give it and demanded he return with a particular waiver from the Attorney General. It was on that day (as above) I mentioned the Morley visit.

(Ireland at Trial did not wish to confirm this meeting without equivocation; his duty books and other records may establish it occurred as I tell it.)

(c) January 30 1989: Ireland and Detective Senior Constable Poniris interviewed me regarding the Funde crime.

(d) March 1989 (date uncertain): Ireland arranged to interview me at the offices; he questioned me regarding those allegations which lay at the basis of the establishment of the National Inquiry Into Racist Violence. I denied any knowledge of these matters. Ireland asked if I knew of any neo-nazis who would be likely to do violence in connnection with Hitler's 100 year birthday. I said the small group of Sydney neo-nazis was probably harmless even if stupid. Ireland then asked why I thought allegations of violence were made against National Action and I said I did not know. He called me a "good liar" and left the premises.

(e) April 6 1989 (poss. April 7): On April 4 1989 an article by Gerard Henderson appeared in the Australian newspaper. It called for a response by the State to the activities of National Action. I protested the piece to Henderson's "Sydney Institute" office and said henceforth Henderson would be demonstrated and campaigned against. The Prime Minister, Mr. Hawke, condemned National Action for this "harassment" - using the forum of Federal Parliament the following day. Within a day or so, Ireland and Garvey called upon me and we spoke over the rear fence of the premises. It was Garvey who threatened that if any members of my organization appeared at any place to demonstrate against Henderson, he would engineer their arrest. The "interview" was a shouting match. I told both officers we would demonstrate - legally - as was our right.

(f) April 15 1989: Ireland, along with Detectives Senior Constables Garvey and Midson arrested Wayne Smith (see below) from the rear of the Tempe premises. I exchanged acrimonious words with Ireland and advised Smith to keep silent. After the arrest of Smith I phoned Special Branch headquarters; I told a female person that Ireland's arrest of Smith was improper. I said I would organize a demonstration against Ireland in the vicinity of his home. The female said "Ireland will be most interested in that".

(g) April 18 1989: Ireland and Garvey called at the Tempe premises; I refused to allow them access and once again - we spoke over the fence. Ireland said I was "not" to demonstrate near his home. Garvey said "families are not part of this". I said "families?" Ireland implied I had threatened his family. I said I had never done any such thing and would not. Ireland repeated it; I said I would fight his campaign by all legal methods. Ireland then said "you will not believe how far I will go." This moral hypocrisy falls flat in the "Catherine" section.

On April 20 I was imprisoned on two matters which have been the (recent) subject for an Application under the Crimes Act (Section 474B) for investigation and Pardon. The Sentence expired on October 31 1989. With me absent from the political scene, Ireland was "free" to deepen his investigations. Members of National Action however, sought to destabilize his efforts. On April 23, Wayne Smith published a pamphlet HEAVENGATE 2 (second edition) which carried Ireland's "secret" home telephone number. He changed it at once. Ireland clearly decided to set the scene for a criminal rampage.

On May 3 1989, in the Legislative Council of New South Wales, the Police Minister, Mr. Pickering commenting on the Special Branch investigation into National Action referred to the arrest of a man (obviously Smith) and said:

"It is interesting to note from the last briefing that I received from Special Branch that because police have been so successful against the organizations involved in this area the officers themselves are now the subject of target by these organizations. Threats have been made against them and their families. As the officers involved are married with children they have every reason to be concerned about those threats. The people they are dealing with are the lowest form of life. I wish to place on record my thanks to the Special Branch officers for the work they have done on this matter. I look forward to continued good work from them."

Only Ireland, Garvey and myself know there were no threats to the families at issue. The point here is that these officers said there were threats. They inveighled a Minister in their allegation. They obtained his blessing. They had carte blanche for whatever would follow.

The Special Branch officers conducted thenceforth an "investigation" which operated behind the facade of "threats" to their families. If these threats had been made, the officers would have been motivated to settle the account; if there were no threats, then Special Branch dissembling had created a satisfactory climate to manufacture false evidence.

On May 5 1989, Ireland was reported by Graham Williams of the Sydney Morning Herald. The article was headed "Extremist Group Calls For Officer To `Be Hit'". It was falsely claimed the pamphlet "Heavengate Two" had made this appalling threat. The pamphlet said no such thing. Ireland said of the "threat": "it will not discourage me - I will redouble my efforts". Ireland's false courage is noted and his threat observed. However: either Williams reported whatever Ireland said and therefore Ireland lied about the threat; or Williams invented the threat in the pamphlet and in some manner deceived Ireland and the general public. The latter is incredible.

It can only be concluded that Ireland lied, that Ireland was creating for himself a strong image in the media; it follows Ireland's investigation can be judged by his methods.

On May 25 1989 Sandra Harvey of the Sydney Morning Herald reported Ireland in an article: "Police Get Extremist Hate Mail At Home". Ireland claimed National Action had addressed an open letter to police criticising the conduct of Special Branch. He said the letter had upset police, was a desperate move by National Action because of the effectiveness of the investigation. He did not rule out legal action but regarded the Special Branch investigation as "effective". This piece of self-advertising indicates Ireland's need for a "cover" and a justification for his work. Sandra Harvey played the game.

However the truth was: the letters were never sent.

This truth will be discussed in the Section "Catherine". For now it can be said that Ireland could never produce an officer who received the letter. He can not produce a mailed letter. He can not produce a complaint to the relevant police authority be any aggrieved officer.

The use of the media to spread disinformation was a necessary adjunct of the Special Branch campaign against National Action.

The Special Branch drive against National Action proceeded through the period May-October 1989. Various members were charged with a number of offences:

Keith Lowe (violent disorder); Richard Holdforth (violent disorder); Tim Wainwright (violent disorder); Peter Colantuono (malicious damage); Shane Rosier (violent disorder); Douglas McKenna (violent disorder); Perry Whitehouse (possess prohibited article) (indictable assualt - dismissed) (attempt to pervert the course of justice - withdrawn); Michael White (the Funde crime); Jason Frost (violent disorder) (malicious damage) (the Funde crime); Wayne Smith (violent disorder - dismissed) (assualt and rob - dismissed) (malicious damage - dismissed) (the Funde crime); Jim Saleam (the Funde crime).

It was reasonably the position these arrests were not simply prosecutions for criminal conduct but a mechanism to achieve the political result - the destabilization of National Action.

On November 1 1989 I appeared at the Supreme Court before Her Honour Justice Matthews on a Bail Application in respect of the Funde charges. Smith had been allowed bail by the Magistrate. Ireland gave evidence and said:

"We are worried that if he gets Bail he will let his supporters know he is out and will re-establish National Action."

It was reasonably the situation Ireland saw the Bail Act as yet another weapon in a struggle which was only partly related to the matter about which I was charged. Ireland's mission was to destroy or hamper National Action; his statement reflects upon the charge itself. If he held this view - he had a motive to present false evidence.

At this hearing before Justice Matthews, Ireland had to concede that he did "not like" me. Political opposition and personal aversion are powerful inducements to pervert the course of justice.

The acrimony between myself and Ireland did not rest there, but continued into 1990. In April 1990, I published "We Accuse: The State Conspiracy Against The Australian Nationalists Movement And Aust- ralian National Action". Ireland received a copy of this document. It was a fulsome denunciation of that officer for criminal conspiracy. It was widely circulated. The viturperative tone of this document could only have caused Ireland further anger and conditioned him to ensure the charges were successful.

In October 1990, I published an Open Letter which was forwarded to in excess of 700 police officers. The tone of this document was an aggressive denunciation of Ireland for criminal conspiracy with his "witnesses" Frost and White; it also accused him of lying in respect of the Sandra Harvey article in the Sydney Morning Herald. Ireland took this letter seriously and in March 1991 (prior to my Trial) threatened libel proceedings. In July 1991, he further threatened to institute proceedings. In December 1990, before His Honour Justice McInerney, the DPP sought to have my Bail revoked because of the issuance of these letters. It was - again - the position Ireland sought to manipulate the Bail Act to achieve an extra-legal result.

I say to my readers:

Upon the totality of the inter-relationship of Saleam/Ireland, Smith/Ireland, National Action/Special Branch that there was ample motive for the fabrication of the Funde case against Saleam and Smith.

5. Special Branch Falsity In The Prosecution Of Wayne Smith On A Malicious Damage Charge.

On April 15 1989, Smith was arrested by Detectives Ireland, Garvey and Midson of Special Branch. He was charged with "violent disorder" arising from a National Action demonstration at a meeting of the Gay and Lesbian Immigration Task Force (April 10 1989); he was charged with malicious damage to the property of Rev. Dorothy McMahon (being one of the persons in a photograph displayed in the Sydney Morning Herald November 18 1988 of three men burning an effigy outside her home); in early May 1989, he was charged at Newtown Local Court for "assault and rob" arising from an alleged theft at the Gay and Lesbian Immigration Taskforce demonstration.

Smith provided the officers with a "confession" to his participation in the McMahon offence; Smith said he had committed the offence in company with some South African men. This confession was supposedly recorded in an official police Notebook and adopted by Smith with signature.

The magistrate, Mr. Beveridge of Castlereagh St. Local Court, dismissed all charges against Smith. The McMahon matter is the issue here.

The Transcript of the magistrate's decision indicates that the Special Branch provided to the defence a "copy" of the Notebook which did not match the original version. Detective Garvey argued Ireland had had possession of the Notebook and that he was not responsible for the provision of inaccurate material. The falsification was extensive and could hardly have been the fruit of chance. Smith was consistent: the Special Branch had threatened his family and he understood the nature of verbal. He provided a confession which was implausible and which could be repudiated later. The Magistrate found a doubt in Smith's favour; he also found that clothing taken from Smith did not match clothing worn by the offender in the photograph who was purportedly - Smith.

However, the curious fate of the altered Notebook was not the only irregularity in this "investigation".

On May 28 1989, Ireland and Garvey had, after contact with Jason Frost, charged him with participation in the McMahon offence. Frost completed a Record of Interview and a very different story came into being. On this version, Saleam, Smith, a person who was determined as RODNEY CUNEO and another man had committed the offence. The offence came into being by invitation. As will be suggested, this confession bore peculiar similarities to the crime-scenario painted by Frost in the Funde crime. I was never charged as a result of this allegation.

What was remarkable was that Frost was never produced against Smith. Rather, Special Branch ran two different cases. It had Smith doing the crime with unidentified South Africans (although Garvey did say he did not believe that particular version) and Frost performing the offence with Smith and others. Frost pleaded guilty to his version.

Logically, no appeal to the adversarial process can justify this flagrant disregard for objective truth.

Ireland was keen to ensure he not have to produce (and possibly endanger credibilty of) Jason Frost. It was disingenuous abuse of the legal process to operate the Smith case. Had Smith been convicted, he would have had very peculiar grounds of Appeal and an incredible witness - Frost - against the verbal brought against him separately. It was reasonably the position nonetheless that Special Branch wished to affect a false conviction against Smith.

Reasonably, the Smith malicious damage acquittal raises a doubt as to Special Branch's integrity in any case brought against him at any point. It therefore automatically raises a question as to the veracity of any case brought against me for the Funde crime given that Saleam and Smith were equal co-accused.

General Submission:

Upon the material recorded here, the case brought against Saleam and Smith was a political case. The background suggests strongly the existence of motives to frame the accused who were the targets of an Inquiry Into Racist Violence. There were political pressures and interests involved in the Funde crime .

The Special Branch ran a flawed case against Smith on other charges. This case has a quality similar to other cases which have been affected by Special Branch and which have stained justice in New South Wales.

The collapse of the credibility of Ireland and Garvey at the Police Royal Commission shall be referred to at various points in this document. Their credibility is the key to apppreciating the muddy beginnings of the Funde prosecution. This should be remembered as you wade through this document.





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.