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


Section Three

The "Doubt" on The Evidence At Trial:
A Special Review Of The Evidence Of Prosecution/Defence.





The obligation which I must discharge upon the review of the Trial evidence of Defence and Prosecution, is to demonstrate that a "doubt or question" as to my guilt - is present.

This shall be done prior to advancing new evidence which lies at the core of the Supreme Court Application for Inquiry Into Conviction.

I was of course found guilty by a Jury. The Court of Criminal Appeal dismissed that Ground of Appeal which argued that the verdicts were unsafe and unsatisfactory:

"The Appellant identifies various inconsistencies within the evidence of each of Frost and White and other inconsistencies between their evidence. All of these inconsistencies are in relation to entirely peripheral issues which have no particular proximity to their evidence implicating the Appellant. " (R v James Saleam CCA unreported Judgment Record Sheet, pp. 44.)

Whilst the language and purposes of the Judgment were relevant to the appellate review process, I dispute that the challenge to the Prosecution case was one which did not go to "any real proximity between these matters and the evidence implicating the Appellant." (CCAJ46)

The Appellate Court was entitled to come to that view because of those principles which underlie trial by jury, adversary process and the normative rules of Trial/Appeal. Appellate logic does not operate in an Inquiry where natural justice principles function and where all evidence is admissible to determine truth, and where a different scale to assess truth is utilised. From this perspective, this review of the Trial evidence assails the Trial verdict casting doubt upon it and raises questions which new material clarifies.

The Prosecution case was one of interminable contradiction. This situation could not exist if the case was truthful; on that basis (and since new evidence is now available) the criticism offered here is one necessary point of departure to affect the dismantling of the State conspiracy which operated to obtain my conviction.

1. Elements Of Consistency In The Evidence Of Frost And White.

The Prosecution case proceeded upon eight essential propositions:-

(i) That Saleam was present at 725 Princes Hwy. Tempe on the evening of 27 January 1989 (not contested).

(ii) That Smith was present also (contested).

(iii) That Frost attended the premises until about 10 p.m. (contested with the defence maintaining he left at 9.30 p.m.).

(iv) That White attended the premises (contested).

(v) That Saleam had the address of the crime victim Eddie Funde (not contested).

(vi) That a pump action shotgun was present on the premises (contested).

(vii) That a conspiracy to affect the crime took place with Saleam, Smith, Frost and White performing various functions (contested).

(viii) That Frost and White carried out the offence in accordance with those arrangements forged with Saleam and Smith (contested).

To prove the case, the State had only the evidence of Frost and White and the allegation was, in one sense, accepted or rejected in toto, upon the whole of their evidence. These witnesses were certainly consistent on these eight general "facts". They were also consistent as to certain points of detail although questions arise as to the significance of this supposed consistency:

(i) Frost said he had never met White, or couldn't remember meeting him prior to 27 January 1989 (TT26, 46). White affirmed he had not met Frost before 27 January; he had not seen him afterwards (TT138). This evidence suggested Frost and White knew nothing of what would transpire until they arrived at the Tempe building; they were "chosen" by Saleam and Smith to perform the offence and brought together. The Defence said they knew each other prior to the crime.

(ii) Frost said the offence, by direction, was to take place at midnight (TT30). White concurred that this direction was given (TT131). This evidence indicated the involvement of Saleam and Smith in the conspiracy. White added to this evidence claiming he was told to phone the Tempe number and let it ring three times as proof the crime had been performed; this Statement was argued by the Prosecutor in Final Address as "ringing true".

It may be - on any version - that the offence was planned for midnight (although it was completed earlier because of car troubles as White discussed).

(iii) Frost said (TT30) and White confirmed (TT128) they were given one balaclava, gloves, a paper with Funde's address on it and were told where to discharge the firearm. This evidence again was confirmatory of the allegation against Saleam and Smith.

Of course, if the men had their own balaclava, shotgun, gloves and "map" of Funde's house, they could have decided where to discharge the firearm. These items would have been necessary tools in their joint enterprise; it was a simple process to later "discover" these items were presented to them by Saleam and Smith.

(iv) Frost in his Record of Interview of June 14 1989 (which was in evidence at the Trial) and White (TT128) each said the sum of eight dollars was passed to them by Saleam and Smith for alcohol to be consumed prior to the commission of the offence.

This allegation suggested the cold bloodedness of the manipulative organizers of the offence - Saleam and Smith. The figure of $8 was precise; it was a curious piece of evidence. White had read this in Frost's Record of Interview; he did not mention this in his written confession of July 12 1989, the day he probably (see below) read Frost's Record of Interview.

White raised the issue at Trial to confirm his accomplice. Perhaps, he had been learning his evidence.

(v) Neither Frost (TT47,73) nor White (T145) could recall Shane Rosier being present at the premises on 27 January 1989. They did not deny he was present; they were equivocal. Their evidence could be consistent with the offence occurring as alleged or it could be the men had a script to recite and simply excluded whatever did not accord with it.

Since I maintain White was not present at any time, his answer would have been quite logical; since I say Frost saw Rosier that evening, his answer was in accordance with his script. Significantly, at no point did the Prosecution suggest Rosier was not present either, although Trial "tactics" may have called for such a response.

(vi) Frost denied going to White's home on 27 January 1989 to organize the offence (TT55); White said Frost had never been there (TT168-9). This position approximates the logic of point (i), although on my theory of the offence, this response would be an automatic reflex to the truth.

Summing together the central Prosecution propositions and these aspects of consistency in the evidence of Frost and White, there was certainly a possibility of my guilt upon which a Jury could have acted (and obviously did). However, much of this material is well capable of an alternative explanation:-

(i) There is no real evidence to suggest Frost and White did not communicate after the crime and after arrest; any number of communications could have taken place directly or through intermediaries.

(ii) Both men must read the Statements of the other after arrest and knew of other evidence given during the Sentencing procedures (courtesy of their respective Solicitors).

(iii) Both men had regular contact with Special Branch officers (particularly Ireland) after arrest and whilst serving their Sentences; the case must have been discussed.I note Frost said his evidence had been "drummed into" him during the Sentencing process (TT108). "Learning evidence" is not a difficult process; they had 18 months to do it.

For the Prosecution, as the Crown's Final Submissions on the Appeal indicated, these consistent elements in the evidence of Frost and White carried weight:

"Although the Appellant himself called evidence, none of it went to the central facts of the case. As with his attack on the case generally, it was peripheral." (Submission 4)

These remarks were also used by the Court of Criminal Appeal. However, that this logic applied (if valid at all) to the processes of Trial and Appeal. I submit that any scripted perjury must be consistent as to its core aspects. It is only as a move is made into areas beyond the central, doggedly held fictions, that the story must break down. This logic was not considered by the Court of Criminal Appeal. It was not considered that - in fact - the story did break down.

2. Improbabilities In The Prosecution Case.

A number of improbabilities were exposed in the Prosecution case; these must cast a doubt over the essential credibilty of Frost and White. There is a suggestion of the irrational about some Prosecution claims.

Initially, I repeat some details of the Morley-ASIO matter (see Section 2) and develop it.

(i) It was the evidence of David Morley (TT 235, 232) that Saleam could have assumed he was an Intelligence operative. Per Frost's Record of Interview and my statement at Trial, it has been reasonably established that I believed that Eddie Funde's details were passed over to National Action by this (supposed) ASIO agent.

It would have been unreasonable for me to thence organise such an offence; I could not have been certain that Morley ("Clark") was not entrapping me. More reasonably, a lesser intelligence could have could have committed the offence upon impulse and hatred; some evidence suggested Frost was such a person.

(ii) Frost affirmed under Cross-Examination that he certainly had been told Funde's address had come from an ASIO agent (TT 81-82). There was a clash as to when he was told this (Saleam: 11.1.89 ; Frost 27.1.89) The Prosecution case did not have Frost questioning this remarkable situation ; for Frost not to have assured himself that the offence was capable of realisation (ie. that arrest was not likely) was an irrationality. The Prosecution could not concede he was party to the conspiracy prior to 27.1.89. On the Prosecution case, I had a piece of paper with Funde's house drawn on it (implying I had examined the `viability' of the offence) and hence Frost could have thought the offence possible of realisation. (Nonetheless if there was ASIO surveillance of Funde's house, I might not observe it.)

Neither Frost nor White gave any evidence of surveillance of Funde by National Action members (although Frost's Statement of November 15 1989 said I had been "spotting" Funde's house in the week prior to the offence; Frost did not repeat this story at Trial which suggests he had too large a script to recall.)

Frost was asked if he thought Funde's house could have been under surveillance; he said : "I didn't think about it". (TT81) This also was remarkable - unless, as is submitted here, Frost was well aware the offence was capable of realisation because he had performed some surveillance of the area.

(iii) White did not depose to being told the Funde address came from an ASIO agent, nor admittedly was he asked. What White had to say about ASIO was totally different. White's 12 July 1989 Statement was read to him during Cross-Examination (TT177). It said: "I asked Wayne Smith why he couldn't do the job and he replied that he was too well known; he would be followed by ASIO". This was not taken further. If Smith had said this, White could not have been certain Smith was not under surveillance at that very moment, that the Tempe building was being watched as they spoke. White should have questioned the offence at that point, but on the Prosecution case - did not. The situation was farcical.

It is curious ASIO was mentioned by each offender, but in a different context; yet each was supposed to have been in the other's company at the Tempe offices and subsequently during the actualisation phase of the crime.

It is possible White fabricated this story based upon a reading of Frost's Record of Interview.

(iv) In my Statement at Trial (TT312-313) I said that within an hour of David Morley passing over Eddie Funde's details on January 9 1989, Neville Ireland of Special Branch attended the premises with another officer. Jane Saleam corroborated this (TT346-7). I told Ireland of the Morley visit and that I bundled this person off the premises. Ireland said he could not recall being told of this, but said it was "possible" he was told (TT253).

The tape recorded meeting with Morley is available and it records a phone call received and Morley being bundled off the premises. The tape reveals my deep suspicions of Morley. I maintain this call was from Special Branch so as to arrange the visit. It expedited Morley's removal from the premises.

Telling Ireland of the Morley visit would render it most unlikely I would proceed to organize a serious offence in which I would logically be a prime suspect. At that point I could have reasonably considered Morley was linked to Ireland (TT312-3).

His Honour, Judge Ducker, said in Summing Up at 25:

"I propose to make a comment here which you are at liberty to reject, but would you consider that if the accused did have the belief that Morley was some representative of ASIO or some other organisation, to supply Ireland with information about the note might have been a good way of throwing suspicion on somebody else, right away from National Action."

This comment showed the difficulty the Prosecution had with the evidence of my dealings with Ireland. The Judge's comment may have made some sense in terms of my dealings with Ireland on 30 January 1989 when I passed him material obtained from Morley, but it made no sense whatsoever to forewarn Ireland that someone had an interest in Funde on January 9 and then commit the offence myself. The Judge did not address that issue in his Summing Up; perhaps, he could not make sense of it either and, as he was apt to do, summed up as best he could for the Prosecution.

Logically, to have received the material from Morley, and to have decided to tell Ireland this as part of an elaborate plot, would imply I had decided to commission or commit an offence against Funde in the interval between Morley leaving and Ireland arriving. That would be too absurd for consideration.

Or alternatively, to have decided subsequent to Ireland's visit to organise the crime involved a conscious recognition that I would become a prime suspect; the failure of the Prosecution to provide an explanation for such extraordinary conduct raises a doubt as to the truth of its case. It is more reasonable to assume my conduct in making the reference at issue was to "forewarn" Ireland I was aware of some "dirty tricks" operation and I would not be snared.

(v) As noted in Section Two, the Prosecution failed to establish any real motive for the offence. It skirted around this issue. I denied motive (TT294-5) and still do.

Frost said I said ASIO would be blamed (TT81). Telling Special Branch all about the "Brian Clark" person (Morley) could not, as Judge Ducker unfairly and unreasonably suggested, amount to placing blame upon ASIO; it is a matter of public record that since Special Branch's handling of Richard Seary in the Ananda Marga case, procedures have been altered to gaurantee harmony between the two agencies. Trying to "plant" Special Branch with such a story would not be feasible. It is reasonable to assume I was well aware of the Intelligence relationship. The Prosecution cast for motive in my possible aversion to Funde's racial origin or opposition to the African National Congress, but established nothing.

Reasonably, there was an absence of motive which makes it unlikely I was involved in the offence; the motive involving ASIO should be rejected.

(vi) White deposed that Smith, while demonstrating the workings of the shotgun, told him it had been "wiped down for fingerprints" (TT127). If Smith was then handling the weapon, and in the absence of any evidence to the effect he was wearing gloves or somehow wiped the gun again, he must have left his prints on the shotgun.

This was an implausible piece of conversation suggestive again of the existence of a script.

(vii) It was important for the Prosecution to claim not only had Frost never owned a shotgun but he had never fired one either (TT29,61) prior to 27 January 1989. While it is certainly not impossible for any person with some knowledge of firearms (Frost was licensed to use a shotgun/rifle and his lisence was produced) (I also admitted knowing of Frost's interest in weapons and said he owned both an SKS rifle and a shotgun) to be instructed in the use of a pump-action shotgun, it is somewhat unreasonable to organize an offence in such an ad hoc manner. If Frost was not adept at shotgun usage, he could bungle the crime; if the offence was important enough for Saleam and Smith to plan, it was important it be carried out expertly.

The situation described by Frost was - improbable.

(viii) White deposed that during the conspiracy-phase Saleam asked him if he would handle the shotgun side of the offence, but he declined and it was agreed he would drive the vehicle (TT129).

This evidence indicates Saleam and Smith had not closely planned the crime; rather, it was casually organized and dependent upon the whims of the prime-offenders. Again, we witness that I (at least) had made myself a suspect in the offence as a result of the Ireland conversation of January 9, but was lax as to the planning of the crime.

If there was a suggestion White was to be the driver (and in the absence of any other evidence at Trial or elsewhere), Saleam and Smith must have assumed White would arrive by vehicle (Frost came by public transport); how Saleam and Smith knew White would bring his car was not determined.

If White had not come by vehicle, thence on the Prosecution version, the offence would not have occurred.

There was also a peculiar contradiction by implication. Frost's Record of Interview was quoted to him (TT87) where it was said: "Then Mick turned up and he was to be the driver." It seems on this Frost knew White was to drive . If this was the case, White need not have been asked to handle the firearm side of the offence at all.

There is an improbability on this entire section of evidence.

(ix) Frost and White asserted they did not know each other prior to 27 January 1989 (TT29,46,139).

Of course, teaming together persons who did not know each other does possess a certain logic if it is granted each would not discuss personal matters with the other such that, in the event of the apprehension of one, little concrete information could be given against his partner. However, an untried team is also an uncertainty; in accepting the Prosecution version, we must reason Saleam and Smith believed their agents would act in accordance with instructions and not dissaude each other from the crime. Agents in this situation need to be sure of each other; both men said they had reservations about the crime. If this was so, neither Saleam nor Smith could have been convinced the men would act as commanded once they left the premises and were out of their power.

The Prosecution version suggests a certain "hit and miss" attitude on the part of the movers of the crime. If Frost and White had been primed prior to 27 January, some of this laxity would make sense, but that was definitely not the Prosecution case. The evidence on this issue suggests - improbability.

(x) White deposed he was told the crime victim would be Eddie Funde, but he was not told of his political associations (TT142-4). Frost said he was given only sketchy reasons why the offence was to occur (TT107).

In White's case, he was suggesting he was not given a concrete reason for the commission of a serious offence; the reason could only have been a political one and he was denied this detail. White maintained he later read of Funde's connection with the African National Congress in a newspaper article.

In Frost's case, despite being told the name/address of Funde had come from an "ASIO bloke" (Record of Interview), he was given only "sketchy" reasons for the commisssion of a serious crime.

On the Prosecution version we are left to ponder why otherwise reasonable persons would commit a crime without being told why it was necessary. It was likely Frost and White were not telling the truth about matters which should have been elementary if the offence occurred as a result of a conspiracy with Saleam and Smith.

General Submission:

While improbability does not mean impossibility the collective effect of the ten cited improbabilities upon the Prosecution case suggests the truth of the case existed outside of the parameters at the Trial. When the improbabilities of the case are read in conjunction with the infirmities of the evidence of Frost and White this becomes certain and a residual doubt or question as to my guilt is established.

3. Contradictions and Doubts in the Evidence of Jason Frost

(i) Frost's Membership Of National Action.

The Prosecutor sought to establish that Frost had a firm connection with the National Action organisation. Frost deposed that he became a `Full Member' of the organisation around the time of the "National Conference" in late 1988 or New Year 1989. (TT 24, 26) and throughout January 1989 he attended the National Action offices on that basis.

Under cross-examination Frost conceded that he was wrong over the timing of this `National Conference' meeting and agreed it was after the Funde shooting, then at Easter 1989 (TT 73-74, 90).

While Frost under Examination (TT 24) said he had become a Full Member of the organisation just before the Conference, (at the end of 1988) he did say he started to decrease his involvement-level in February/ March and that he last attended the offices in March (TT 38-39). Frost also agreed that at the time of the Conference, his interest in National Action - was declining. (TT 90)

Logically for the Prosecution, Frost had to be shown to be a firm adherent of NA. ; this would explain why he was `chosen' for the offence, why he was `willing' to carry it out, and why his evidence (as a turncoat `reformed' by a realisation of the gravity of his crime) was credible.

However: this wavering evidence did not serve this purpose; it made no sense to become a Full Member at a time of declining interest; Frost resiled quickly from his opening-version of becoming a member in 1988 prior to the crime; confronted, he drifted into evasion - uncertainty. This situation is highlighted further by the issue of the Membership Form.

(ii) The Membership Form

A National Action `Membership Form' completed by Frost and signed by him was placed in evidence by the Defence.

I said in my Statement (TT 306-7) that I received this (undated) form from Frost on 27.1.89 and that this was the reason that Frost attended the Tempe premises that evening. I said I could not recall exactly when I had given Frost this Form.

The form was relevant to both sides. The Form referred to Frost's telephone number being disconnected; Frost had previously deposed that I had phoned him on this number a week prior to the offence to summon him to the Tempe building. The Prosecution proved (TT 275 [a] - 278) that the phone was not disconnected until February 8 ; however, it could not be established whether the telephone was working without service fault around the critical period - Frost was never asked to distinguish between a service fault and a disconnection ; he did say "the phone was on and off". (TT 50)

It was Frost's response to this line of questioning which was the critical material.

Frost said " I don't think I did" give the form to Saleam on 27.1.89 (TT 45) Later he agreed he "cannot say" when the form was returned (TT 51). Frost could not remember Saleam reading this form through, laughing at some of its contents nor any of the conversation when it was passed in (TT 52). In fact Frost never even remembered such a document when first questioned about it (TT 47). Frost later insisted he did not pass the form in on 27.1.89 (TT 89) and subsequently returned to the `Conference time' position (TT 90).

(Significantly, at no point of time has the Prosecution even argued that this crime was some sort of membership test)

The evidence concerning Frost's association with National Action and the Membership Form is cited as an indication of his uncertainty (or falsity) on matters which should be in easy province.

On the balance of the evidence:

Frost did attend the Tempe premises on 27 January and did pass in the membership form and this was by arrangement. Frost's inability to satisfactorily address this evidence should be held as collateral proof of the veracity of my position on the reason for Frost's visit to the National Action offices on 27 January 1989.

(iii) Frost's Arrival Time at the Tempe N.A. Premises

Under examination Frost said he arrived at the National Action offices at "around 7 o'clock" (TT 27).

Under Cross-Examination it was put to Frost that he arrived at 7.30 p.m.. Frost replied "I don't know what time I arrived" (TT 45). Later he thought it was 7 o'clock (TT 46). The question of `timings' is of great relevancy. Frost retreated from precision to some uncertainty.

I submit the uncertainty arose because Frost arrived at the premises after Rosier (7p.m.) who saw him arrive and Frost was hedging around the truth. The matter was further highlighted in the context of other issues of "timing".

(iv) When Did the Gun Appear?

Frost maintained that he was upstairs in the Tempe building reading newspapers when, at a particular point, he was summoned downstairs (TT 27).

At that time in the kitchen area of the building, a gun was produced from a hiding place (TT 27). Saleam, Smith and Frost were present. Frost deposed he did not recall any conversation about the gun. (TT 27)

Shortly after giving this evidence, Frost told the Prosecutor that "Mick White" arrived "around 9.30" but to the sequential question :

"AT THAT STAGE HAD THE GUN BEEN PRODUCED?", Frost answered: "I DON'T KNOW. (TT 29)

Such a position could not reasonably be taken; at the very least such a fundamental shift in the evidence within a short space of time illustrated a cavalier attitude.

In the Final Address to the Jury the Prosecution asked that this type of contradiction be discounted in favour of a general hypothesis - that the inconsistency was simply a matter of "detail". The Prosecution spoke often of "detail" and the Crown on the Appeal of "discrepancies" which a Jury could disregard. We are no longer bound by such logic.

This issue can not be relegated to the "irrelevant basket" considering the Defence claim that event described was a fabrication. It was too difficult for Frost to remember the Perjury in detail so he relied on confusion. There is a point where uncertainty must end and falsity begin.

(v) Who Was Present When The Crime Was Mooted : The Order of Events?

Under Examination, Frost deposed he entered the "kitchen dining-room" area of the premises; Saleam and Wayne Smith were present (TT 27).

Some time elapsed and "around 9.30" "Mick White arrived" (TT 29). Some conversation took place connected with the organisation of the attack upon Funde (TT 29-30). It should be noted that this version of events was consistent with the June 14 1989 Record of Interview.

Frost was Cross-examined upon his Statement (made to Detective Ireland) on 15 November 1989 which suggested White arrived just as Frost came into the kitchen area (TT 87-88) . Frost said White arrived "after" he came downstairs and then " I think that's when he came in" (TT 88) and that his Statement did not "say before or after (TT 88). Frost also said: "I don't remember this situation, what is in there, what is in those statement things." (TT 88) He then said White arrived at 9.30 just as he was about to be told about the offence. (TT 108)

This evidence fluctuated wildly ; the fluctuation was greater when read in context with the `production' of the gun. The penultimate comment of the witness was suggestive of mendacity: this is no reason he should not "remember" his Statements - if they were truthful. It was clear the story had changed from the June 14 1989 Record of Interview to the November 15 1989 Statement with the Trial evidence returning to the first version and wavering towards the second. This sort of discrepancy was an indication that the event described did not occur at all.

(vi) The Quality Of The Conspiracy-Conversation In The Kitchen Area.

During Examination Frost gave no conversation with Saleam and Smith even in the most truncated form, prior to his appearance in the kitchen area.

Indeed it seems that after arriving (at 7.00 or 7.30?) he simply went upstairs to read newspapers. Neither his June 14 Record of Interview nor his subsequent Statements of November 15 1989 and December 2 1989 explain his movements prior to being in the kitchen area; he was not told anything but pliably waited in an upstairs room for a fair period of time.

The Prosecutor asked:-

What was the conversation once he came downstairs? Frost replied: "None that I can recall" (TT 27). The shotgun was produced but again Frost did not recall any conversation (TT 27). The gun was taken from its case, but again, no conversation was recalled (TT 28).

Frost also mentioned that he did not recall any conversation between Saleam/Smith and Michael White (TT29). However he did refer to Funde's name and address being shown, orders to the directioning of the shots being given and an exhortation to do the crime at midnight (TT 30). However Frost recalled nothing else by way of conversation with Saleam and Smith (TT 31).

Two conclusions follow:

(a) Frost was completely unwilling to commit himself to any conversation of any sort prior to the arrival of White; he pleaded memory loss.

(b) Thereafter the conversation was generalised and dappled with further losses of memory.

(c) While it could not be expected Frost should recall the conversation in elaborate detail, he should have had some recollections. His non-committal and evasive responses concerning central details of the conspiracy which should be etched into his memory - implied falsity.

(viii) Where Did Frost Go After Leaving The Tempe Premises?

Frost appeared to consistently maintain (Record of Interview, TT 29) that at about 9.30 p.m. White arrived at the Tempe premises. At about 10p.m., he and White left the premises (TT 106).

I have reviewed his Examination ; it was obvious the Prosecution was loath to elicit from Frost where it was he said he then went and in precise detail (TT 31-32). Rather the Prosecution desired that only a general picture be given to the jury. That was understandable in view of how the story had been constructed. Extensive Cross-Examination naturally took place upon this crucial issue (TT 82-87 : TT 110-112). Upon the whole evidence the position was:-

In his Record of Interview 14 June 1989 and confirmed by his 15 November 1989 Statement, Frost initially said the offenders travelled from Tempe to a hotel in Balmain and after a 45 minute repose they proceeded to Croydon to perform the crime. On 2 December 1989, 2 days before the Saleam-Smith Committal Frost altered this framework fundamentally in a fresh statement.

In the new version the offenders travelled first to reconoitre Funde's address, then to a hotel in a working class area (not Balmain) and finally returned to the crime scene. At Trial Frost said: "I can't remember where the hotel was; it looked like it was a working class area, but I think it was around the docks" (TT 82). He said he had "forgotten" the sequence of events until he corrected himself on 2 December 1989 (TT 86-87). It was put to him that he had not forgotten at all (TT 86-87) but he denied this. Frost's 2 December 1989 Statement reads in part (it was quoted to him): "When we left Tempe we went over to Balmain, no that's not right - first we went over to Funde's place to find it."

This fundamental sequence of events should have produced interrogatory questioning in the Statement-record, yet it did not. The Statement's convenient language was redolent of fabrication.

Frost said he had previously thought he was in Balmain because it was as he imagined Balmain to be and because he had been talking to a Balmain resident (TT 83-5).

Reasonably, Frost could only have imagined (because of the particularity of the evidence) he was in Balmain if in fact he was in an area which bordered Balmain, and that on the balance of probabilities this area was indeed where he was - at some point in the evening of 27 January.

The two charges in the story-line post 2 December 1989 were:

(a) the offenders left Tempe and first surveyed the crime scene prior to adjourning to a hotel.

(b) The hotel was not in Balmain but in some unknown area defined only by "working class" and "docks."

As will be observed elsewhere it is likely Frost attempted to harmonise his version of events with that given by White.

There could be only one reason for altering the very story which, on November 10 1989, Frost adopted as truthful when he pleaded guilty to the crime. It was an attempt at evidence-harmonisation.

(viii) A Question of Timing : Frost Did Not Have Time To Commit The Offence As Alleged.

Frost was thoroughly consistent in his Record of Interview, at his Sentencing hearing in the District Court (TT 108) and under Cross- Examination at my Trial (TT 106), that the crime was conspired from 9.30p.m. after White "arrived." Frost spent some 45 minutes in the kitchen area (altogether) with perhaps a half hour during this time period for the plan to be announced and the arrangements completed (TT 29).

The offenders decamped at 10p.m. (TT 106). This version of events could be regarded as central to Frost's evidence; the crucial problem was that it did not add up after the change to the story-line noted in (vii).

(a) Frost arrived in Funde's street at "11.20/11.25" (TT 32). This final arrival time is consistent with the offence occuring at 11.30p.m. (as Funde's evidence ie. "11.30p.m." showed and as the police Occurrence Pad at Burwood Police confirms Funde's timing). Frost said he alighted from Frost's car in a nearby street, checked the house, prepared the gun, and push started the faulty car. The time of 11.30p.m. is, within a couple of minutes of error - undoubtably correct.

(b) Previous to this Frost had been in a hotel some 20 minutes drive from Croydon (TT 31, 82-5, 111). By simple arithmetic Frost left this hotel for Croydon about 11/11.05p.m.

(c) Frost had spent some 45 minutes at this hotel talking to the Balmain resident and consuming alcohol (TT 82, Record of Interview). Demonstrably, he arrived there at 10.15/ 10.20p.m.

(d) Frost had come from Croydon, 20 minutes away. Logically, he was first at Croydon at 9.55p.m.

Upon no reasonable course of logic could Frost have been simultaneously at Croydon and in the process of leaving, or still at, the premises at Tempe receiving crime-instructions from me as his evidence had stated in (vii).

This basic contradiction was never resolved. Since the jury found me guilty I can only assume that the Frost/White story of a conspiracy with Saleam and Smith was believed and some guesswork was engaged in and -

(a) Frost's timings were altered or,
(b) Frost's story on the matter of where he travelled after leaving Tempe was altered back to his original version of things or some variant or, (c) Frost was disregarded on that point and White's version adopted.

The jury decision was unreasonable. The whole issue is ridiculous. The Defence submitted (and I still aver) that since the Defence - witness Flowers said, that it was the weapon which was disposed of at Balmain (TT82), and that drinks were consumed after the crime at Balmain (TT421-422), Frost must have been in the Balmain area sometime on 27 January 1989. The Defence submitted that this change in story line tended just a little towards consistency with White (on the matter of first being at Croydon prior to the crime) but although each version remained hopelessly at variance, it was offered up to convict Saleam - regardless.

It seems generally that lies were blurred with truth; Frost's "timings" are crucial tests of his credibility and this problem in the evidence went well beyond a "discrepancy" any Jury was entitled to ignore; Frost created a time frame for the crime (for whatever reason) which could not explain the events; if this is so there is a doubt or question - unresolved - as to my guilt.

(ix) Frost Attributes His Own Words To Saleam

Under Examination, Frost said he attended Saleam's offices about a week after the crime but that he did not have any conversation with him concerning the offence (TT38). Frost said "I can't remember" if the matter was ever discussed again (TT39).

The evidence would be improbable if indeed such a crime was so commissioned and committed.

Under Cross-Examination Frost was referred to his Record of Interview where he described fleeing the crime scene after the shooting : "there were cop cars flying everywhere in the backstreets" (TT78). Frost was then asked to confirm that he had not discussed the crime with Saleam after 27 January 1989 and he replied "I said I couldn't remember if I did" (TT79).

He was reminded he had also answered "no" to a question as to if he had discussed with Saleam the crime a week after the offence but Frost said he could not recall giving the evidence (TT79). Frost was taken to his 15 November Statement where he described having a post - crime conversation with me where he credited me with saying "there were cop cars flying everywhere".

Frost replied, "I can't remember all this, I'm tired." (TT79)

He said he "probably did" discuss the crime again (TT80). Defence counsel pointed out to him the similarity of language between his words and the Record of Interview and his Statement which attributed his phrase to me:- "If that's what I wrote then, that's probably what I thought then, but I don't remember now - how long ago did this happen?" (TT80)

This evidence demonstrated that Frost attributed to Saleam words that were clearly his own and when this was pointed out to him he resiled from this evidence; the retraction suggested falsity compounded by an attempt to graft it upon another; a doubt over the veracity of the Statement exists ie. from Frost's own words he composed them and no longer remembered them.

A question exists as to whether the Statements were Frost's own words at all; the variation between his evidence is indicative of -"scripting" .

(x) How Frost Failed To Reply Effectively To Flowers' Evidence (TT36-38)

Bradley Flowers was a crucial witness in the Trial and the Application to the Supreme Court will centre heavily on issues arising from Flowers' presence in the Trial. I shall not review Flowers' evidence here, but deal with - Frost's inability to confront it.

Frost was Cross-Examined closely upon the issues involved in his relationship with Flowers and his conversations with him about the crime against Eddie Funde. (TT56-58).

That this Cross-Examination was an important issue may be gleened fron Judge Ducker's Summing Up at 25:

" He denied any recollection of speaking about Funde to Flowers. You heard and saw that Cross-Examination and you have heard the comments made by learned Counsel for the accused about how well Frost stood up to it. It is up to you to make your judgement in that respect".

Particular points of Frost's Cross-Examination raised questions and doubts to Frost's veracity.

There was no argument as to whether Frost was acquainted with Flowers, had been in his home, had delivered books to his premises, obtained the name of a solicitor from him after arrest and did in some way or another discuss his legal predicament. Frost had a relationship with Flowers' sister. It was all a question to whether Frost had made various statements and admissions to Flowers which invalidated his evidence.

Judge Ducker said of Flowers' evidence (Summing up at 42):

"Last of all there was another witness who was an important witness in the case. There is no doubting that because if you accepted it or ithis evidence raised a reasonable doubt in your mind then you would have to reject Frost's view of things."

Frost had enormous difficulty in confronting Flower's evidence:-

(a) At one point Frost was asked what he thought the purpose of the Cross-Examination as to his conversation with Flowers was.

A: "I don't know what you're driving at."
Q: "You don't know what I'm driving at?"
A: "I know what you're driving at."
Q: "What am I driving at?"
A: "I don't know." (TT60)

It was clear Frost did understand the motive inherent in the Cross-Examination and took refuge in evasion; he was concealing a truth.

(b) At another point Frost was referred to a particularly important conversation with Flowers:

A: I don't remember this meeting, this whole situation.
Q: His Honour: "Can you say that it did not happen?"
A: "No." (TT66)

Judge Ducker took time at one point to question Frost as to whether he understood the difference between saying he could not remember a conversation and denying it occurred.(TT66) Frost continued to answer "I don't remember" to his alleged dealings with Flowers.

The evidence given was suggestive of falsity and mental confusion.

(c) It was put to Frost that in his discussion with Flowers the question of who actually organised the Funde offence had been dealt with, that Flowers had asked him this question. Frost replied:

"I certainly don't remember that question and I certainly don't remember this situation and that question. I can never remember that." (TT67)

This evidence illustrates Frost did discuss the matters at issue with Flowers and had suppressed the truth in favour of a script; this was remarkable and incredible language.

Generally per (a) (b) (c), Frost failed to deal with Flowers evidence; he was not forewarned of this Cross-Examination, or if he was, the sense of guilt at having to confront the enormity of his Perjury was overwhelming. Frost's evidence earned him no credit such that a doubt or question as to this phase of the evidence demonstrably exists.

(xi) Some Areas Of Curiosity And Falsity in Frost's Evidence

(a) Of his memory of the crime and its construction, Frost said : "... bits and pieces come back." (TT103)

Whilst poor vocabulary or imperfect communication skills may affect any witness, this evidence suggested substantial mental confusion or disorder; it may be possible Frost had made some sort of effort to suppress the crime from his memory; there is consequently a question as to his credibility, and to my guilt.

(b) Some of Frost's evidence at Sentencing was quoted to him:

"...it was like a thousand faces looking at me and it was as if I was forced into it." (TT108)

Whilst this self- serving evidence was produced to cast culpability for the crime elsewhere; it was more than graphic licence, it is suggestive of Disorder.

(c) Frost was referred to his evidence being "drummed into me while I was going to Court" although he defined this only as his Solicitor asking him questions prior to, and at, his Sentencing. (TT 103)

Frost learned his evidence or the kernels of it through a dialectical process.

If Frost's evidence was drummed into him it was peculiar how uncertain his trial evidence was; whilst Frost could have suffered Alzheimers-like memory lapses in the interim, the balance of probabilities was that Frost had no faith in his Trial evidence and could not support that evidence.

(d) I record that under Examination/Re-Examination, Frost answered to the effect:

"I don't remember" - some 18 times. Under Cross-Examination he answered similarly some 122 times.

Whilst some of the questioning by Defence counsel may have prompted that type of answer on particular occasions, the pattern developed by such responses was damning of Frost's credibility which must raise a doubt as to my guilt.

(e) One minor incident in the Cross-Examination not only illuminated the character of Frost's evidence, but confirmed his intense interest in South African politics.

Asked of his interest in South Africa's Eugene Terre'Blanche and the Afrikaner Resistance Movement (AWB): "I became fascinated with the movement and the politics of South Africa" (TT43)

Asked if he had named his dog "Terre'Blanche, Frost twice answered "no". Under persistent attack he then agreed he had done this, but the name was "too long" and therefore he renamed the animal - "dog". (TT44) Frost accepted the position put to him after untruthful denials.

Seemingly, Frost was the type of person not only very willing to engage in an offence against Funde, but a person of intense beliefs or opinions and capable of - organising an offence.

(xii) Frost's Record of Interview (14 June 1989) : Doubts To The Genuineness of His "First Confession"

Only Frost's Record of Interview of 14 June 1989 (but neither of his Statements) was placed before the Jury at Trial. The comparitive nature will be discussed subsequently. The Record of Interview, conducted with Detectives Ireland and Garvey, was/is a critical document.

For the Prosecution the underlying and probative worth of the document was -

(a) it was Frost's first confession of the crime.
(b) it was made freely.
(c) it was made after two previous denials of culpability (TT39, 96)
(d) Saleam and Smith were accused of complicity in the offence from the first moment.

The Defence, by the logic of Cross-Examination and by various constructions in its Final-Address to the Jury posited that each of these four qualifications upon the Record of Interview - was false.

The Record of Interview was a pithy document; it suffered from incompleteness ie. the police interrogation could have been much more detailed and precise. Rather Frost was allowed to sketch in the basics of his confession and the matter left at that.

Various details and questions arise as to whether the document was the genuine article:-

(a) Frost's confession of 14 June 1989 was made at Penrith Police Station. "I didn't want to be there," he said, yet he was not under arrest. (TT78)

(b) Frost said he was under duress, in the sense of being stressed when he made the Record of Interview (TT 77-78). Reference was made to Frost also saying the words of the Committal - but Frost said he did not recall the Committal. (TT78)

(c) Frost said he was in fear of being charged with "attempted murder" though he denied being threatened by Ireland (TT90) but was certainly concerned that charge could be laid against him. (TT90)

(d) The Prosecution bolstered Frost's credibility by leading evidence that he had been asked three times about his involvement in the offence (TT38). Frost agreed that was true. (TT96) There were two denials before the truth was elicited at Penrith Police Station. However, from Frost's evidence (TT92, 97-99) there seems to have been more than 3 meetings with Detective Ireland with with some conflict between Ireland and Frost upon this matter. It stretches credulity to accept that these meetings could have occurred without the Funde crime being discussed.

(e) Frost was asked in Cross-Examination whether he understood that compilation of a Record of Interview could make him a witness against other persons. Frost said "yes". (TT92) His Committal evidence was quoted to him where the content was - "no". Frost thence said: "I was hoping that I wouldn't" have to give evidence and from subsequent questioning shifted ground: "No. I was hoping that I wouldn't have to go to Court." (TT92)

(f) Frost also deposed to a remarkable encounter with Special Branch Detectives Ireland and Garvey where he was told Wayne Smith was the person who informed on him for this offence, and where a notebook had been shown to him containing a signature and writing purportedly Smith's. Frost said he believed Smith did inform on him. (TT 97-99) (As will be discussed elsewhere: there was such a Notebook) At Trial Frost was not Re-Examined upon this matter because the Prosecution knew Ireland would (and did) deny any such confrontation.

Some broad submissions can be made:-

(a) Frost was under stress and threat when his confession was made.

(b) He believed Smith had informed on him and he retaliated by dropping Smith into the crime.

(c) There were likely several meetings between Ireland and Frost before the confession came into being, with Frost not fully appreciating the significance of an allegation made against others.

(d) Doubts as to the credibility of this confession indicate Frost became trapped into a story the consequences of which he could not escape.

General submissions follow at the end of the Section.


(xiii) R v Payne 1950, 34 Cr App R 43: A Question Of Law And Fact.

Although I raised with the Court of Criminal Appeal - via my Submissions - a question derived from the case of R v Payne, my point in law was not replied to.

When Frost appeared at the Saleam-Smith Committal he was on Appeal to the District Court against two prison Sentences imposed on November 21 1989 at Balmain Local Court after convictions for malicious damage and violent disorder.

The position taken in R v Payne was that an "accomplice" should not becalled against an accused until he had been dealt with for his part in the offence; certainly Frost had been dealt with in respect of the Funde offences. However, Frost was under the impress of other process. He was in fact beholden to the Prosecution for a favourable attitude towards his Appeals (which in due course he received). Therefore, on the first occasion Frost gave evidence against others (a task he was hoping he would not have to perform) he was not a free agent, but a rat in a trap.

It was the evidence of Flowers that Frost hoped to avoid imprisonment on the Appeal matter by making a "Statement" in respect of the Funde case.

I conclude:

A clear imputation could be drawn that the State produced a tainted witness, a man who bargained with Perjury for his escape from imprisonment on other charges.


4. Contradictions and Doubts In The Evidence Of Michael White

A number of contradictions arose in the Trial evidence of Michael White; taken together or singly in some cases, doubts exist as to the veracity of this evidence.

(i) White's Summons To The Tempe Building

Under Cross-Examination, White deposed that some five days prior to the offence he received a telephone call at his home from Wayne Smith, requesting his attendance at the Tempe National Action offices on 27 January 1989 (TT126). This allegation was dismantled in a multi- faceted attack.

(a) Under Cross-Examination, White was referred to his June 30 1989 Record of Interview, an exculpatory document which contained no admission to the Funde offence. In that document, White was asked whether Saleam had his Sydney phone number: White denied that I did and said contact between us in Sydney was by mail only. White confirmed making the statement. (TT 172)

Although it could be argued (by the State) that the document was generally untruthful, the Saleam phone issue was incidental to whether White did the shooting and was given at a time when White was denying culpability. I submit, a reason to lie on this small point, could be discounted.

(b) White was taken to his July 12 1989 Statement; here White wrote that it was Saleam who phoned him with the summons to the Tempe premises, but White reaffirmed that it was Smith. (TT173)

White said in that regard only, his 12 July Statement was incorrect. (TT173)

It would have been a curious "mistake" given that events must logically have been more "fresh" in White's mind in July 1989 rather than later at my May 1991 Trial.

(d) It was reasonable to assume that White was well aware of the death of Wayne Smith on 20 April 1991; it was not impossible White changed the evidence after this incredible event. Smith was no longer available to deny the lie.

White's evidence on the "summons" was riddled with inconsistency when there was no reason for it; this was a collateral proof that the event did not occur.

(ii) The Sequence of Events During The Conspiracy Phase

Some of the most confusing evidence given in the trial involved the sequence of events at the Tempe building during the "conspiracy phase" of the crime. Just as in Frost's evidence, there were contradictions in White's version.

(a) White deposed he arrived at the premises between 8.30/9p.m. with Saleam, Smith and Frost in the kitchen area. (TT 126-7) Conversation ensued directly relevant to the organisation of the crime. That was the version of events described in Opening Address by the Prosecutor and it was consistent with the first version given by Frost if some allowance was made for timing. However White proceeded to confuse the issue under Cross-Examination: "It could be the case, yes.." that he arrived at 9.30p.m. (TT 144-5) and he could be therefore an hour out in his timings - "Yes, that's, that's right." (TT146)

The State may say that being an hour out in timings does not prove no conspiracy occurred. However, it is clear White did not seek to be precise, merely to assert he was present. Nonetheless, this evidence remained uncertain.

(b) White was closely Cross-Examined as to his 12 July 1989 Statement which had him arriving first at the premises ahead of Frost. Judge Ducker at one point during this phase of the evidence observed (I would say correctly): "your evidence is very confused and confusing" (TT164) White resiled from the Prosecutor's opening version of events and evidence, once he was confronted with the Statement; asked to explain the inconsistency between arriving ahead of Frost and arriving to see Saleam, Smith and Frost in conference, he said: "I can't, I just, I don't know". (TT156) This line of Cross-Examination carried through TT 156-166. White seemed to settle upon not knowing the order of events.

There was no doubt this Cross-Examination was probing and it could be held to be that a witness could have become confused as the Crown submitted upon the Appeal.

In Summing Up, Judge Ducker said at 30:

"It is a matter for you whether you think he emerged as a liar or somebody who was thoroughly confused...The Prosecution suggests that he was not an overly bright young man and he was not able to cope terribly well with the very searching Cross-Examination."

This inconsistency was not the only problem in White's evidence; although by itself it could perhaps be possible to admonish White for confusion. Viewing the evidence in isolation it is still material of a disturbing nature. White gave one version when he made his 12 July 1989 Statement, came to the Trial with a version consistent with Frost's 15 November 1989 Statement, and then resiled from it.

White's inability to deal satisfactorily with the sequence ofevents could be held as collateral proof he was not at Tempe premises on 27 January 1989 and found it difficult to support evidence which had been "scripted" to him.

(iii) Timings and the Numberplates Issue

White's original version of the times (as above) was that he arrived at the National Action offices at 8.30/9p.m. though he accepted he could be an hour out in his estimates.

White deposed that the numberplates of his car were "darkened" through Smith's intervention and this was one of the last things done before leaving the premises (TT153); but it was also something done a half hour prior to the gunmen leaving the premises. (TT147) It occurred a half hour after arriving. (TT148-9)

From this material it appears that White was on the premises for nearly an hour, something obviously incompatible with his willingness to accept 9.30p.m. as his arrival time though compatible with the earlier version. The shifting sand of White's evidence allows the piece to fit the jigsaw puzzle, again by making an allowance in favour of the general Prosecution hypothesis that White was indeed present to conspire the crime.

The surfeit of time which White had, while "convenient"for the Prosecution hypothesis presents a major problem in that nothing further was done or uttered during the available period; it casts uncertainty over White's version(s) of events.

(iv) What Direction Did White Travel After Leaving The Tempe Premises?

Under Examination, White deposed that the route he travelled with Frost to perform the crime was to proceed along the Princes Highway, to the Hume Highway, taking finally a right hand turn into Tahlee St. Croydon (TT136). This route was confirmed (TT140).

My Counsel provided the jury with a street directory and a map to assist in determining the distances and locations involved in the evidence. I also rely on general knowledge in this Application.

Under Cross-Examination White said: "No I don't say that" as to whether he drove along the Princes Highway after leaving Tempe (TT170); rather "that is what I thought". (TT170) White confirmed the route: "that is what I say, yes". However, he denied heading towards Sydney as could be reasonably expected since Broadway leads directly to the Hume Highway/Parramatta Rd. ie. (Cnr. City Rd. or Princes Hwy. and Broadway) (TT171). He said he went in the other direction - "yes"

"Q. Going towards Rockdale?" "I don't know" (TT171) White could "not really" describe how this manoeuvre of travelling along the Princes Hwighway was achieved (TT174). He said "No, no" as to having done this by travelling south.

White pleaded ignorance of Sydney geography on some occassions but this does not explain why he could not even explain which way he went after leaving the Tempe offices. Either he travelled North or travelled South.

White's refusal to commit himself to any detail whatsoever was symptomatic of falsity; he again fell back upon the general Prosecution hypothesis but could not explain himself upon a matter certainly within easy recall; this inconsistent wavering evidence was collateral proof White did not travel from Tempe; he kept the evidence vague so he could not be in trouble over inconsistency with Frost.

(v) White's Timing; A Problem At The Hotel

Under Examination, White indicated that after locating Funde's house, the gunmen proceeded to a hotel for a drink (TT130)

Unlike his previous uncertainties about where he went after leaving Tempe, White located this hotel in the Ashfield/Croydon area, 5-10 minutes from Croydon and not on the highway (TT130,124,135-137).

"About half an hour" was spent there and White did not know what time it was when they left (TT130).

Under Cross-Examination, White was referred to his July 12 1989 Statement; "about an hour" was spent in the hotel on that version (TT177).

The two versions were inconsistent (although somewhat consistent with Frost's "45 minutes". It was highly likely the two men did go to a hotel for a pre- crime drink.)

Unfortunately, the inconsistency complicates White's timings if he was again at the crime scene at "11-ish" (TT131); it would complicate White's assertion he could be an hour out per his timing of the conspiracy phase of the crime; on that version White could not have had time to commit the crime as alleged ie. arrived at 9.30 (Tempe); 1 hour on the premises; the drive to Croydon, 1 hour in the hotel.

In reality the discrepencies in this evidence point to the certainty that there was no conspiracy phase at Tempe and there was an attempt to conceal whatever in fact - occurred.

(vi) The Recovery of the Firearm

Under Examination, White deposed that on the Sunday subsequent to the crime (29.1.89) sometime before lunchtime, Saleam appeared at his premises and recovered the firearm used in the crime. (TT132)

Under Cross-Examination White was referred to his 30 October 1989 Statement which said : "The next morning Jim came around and I gave him back the shotgun." (TT176) White was asked:

"Q. The offence took place on Friday night, didn't it?"
A. Yes.
Q. And the next morning would have been Saturday the 28th.?
A. Yes.
Q. You think it was Sunday?
A. But it was on a Sunday.
Q. So, where the Statement...of 30 October, it says `the next morning' - that is in fact incorrect, is it?
A. Yes."

It was clear White had given two versions and settled on his 12 July 1989 version.

The truth could not be forgotten; the reason for the inconsistency must have some sinister meaning since it was part of a pattern of alteration and evidence-change; it was also related (as below) to a peculiar section of Ireland's evidence which suggested it was he who part-authored the Statement.

(vii) White's Confession of July 12 1989

White's confession of July 12 1989 was his first written confession; it was made in Penrith Police Cells. White was alone with Neville Ireland. (TT263)

There was some uncertainty as to whether White was shown - on that day - Frost's 14 June 1989 Record of Interview. There was a suggestion that he was; White wrote in his 12 July 1989 document: "I have read Frost's Statement and he has given an accurate account of what happened when we left." (TT155) However at Trial, White could not recall being shown the document in the Penrith police cells. (TT155) In other words, "I have read ..." is ambiguous. There was evidence White had seen Frost's Record of Interview on 30 June 1989 when he made an exculpatory Record of Interview. (TT154) Whilst it is likely he was shown the document it would have been normal police procedure that it be shown to him.

White did confirm he understood the meaning of the word "accurate". (TT162) What remains curious therefore is why White's version of events of "when we left" was different from Frost's version.

If the events described took place, they must have been fresher in White's mind on 12 July 1989 than at Trial in 1991; he had read Frost's version of events for both before and after leaving the Tempe premises.

There is another possibility: for reasons known only to White he deliberately gave a different version of events. White confirmed in Re-Examination (TT222) that on June 30 1989 he had given Ireland an oral confession but this confession excluded Saleam and Smith. This substantial prior confession could be the truth; if it was, it would explain the problem in the document of July 12 1989.

At the Committal Ireland said he told White he would use the Statement to prosecute Saleam and others (TT273). Ireland claimed at Trial not to remember saying this although he agreed he must have said the words to White (TT273); he never told White his Statement could make him a Crown witness against others.

The taking of this confession was irregular in that only one officer was present; Ireland's comment to White was unusual in that Ireland must have reasonably known that a mere Statement of an "accomplice" has no power in the prosecution of others; it is likely therefore White did not understand the possible implication of making such a confession nor did Ireland choose to inform him.

It appears likely that White must have been given some freedom to draft his own confession since it contained various contradictions to Frost; Ireland chose not to proceed by way of Record of Interview where he could have controlled the direction of a confession; Ireland appears to have desired a "confession" implicating Saleam and Smith regardless of any flaws; grave doubts must exist as to the veracity of the confession in view of the attendant circumstances under which it was composed and in view of White's oral confession of June 30 1989 which did not implicate Saleam and Smith. General Submissions follow at the end of the section.

5. Doubts Arising From The Contradictions Between The Trial Evidence of Jason Frost and Michael White

There were not only inconsistencies/contradictions within the evidence of each of Frost and White but discrepancies between their evidence. These problems were not resolved at the Trial nor explained satisfactorily at the Appeal. For the State - the matter was dumped upon a Jury entitled to find as it chose. It will be submitted here that the problems were such that it is clear the truth was not being told by Frost and White and that a residual doubt as to my guilt exists upon their evidence.

(i) Who Arrived First At The Tempe Premises

Substantial confusion and contradiction developed over the issue of which man, Frost or White, was supposedly the first to arrive at the National Action offices and hence the first to become party to the conspiracy phase of the crime.

Frost said White arrived at 9.30p.m. (TT 29, 30, 87, 88) - (Record of Interview) and this story was central to his evidence.

White told the Court he arrived at 8.30./9p.m. (TT126) but accepted it could have been 9.30p.m. (TT144-8). He had not previously given in his Statements a time for his arrival. Under Examination White said he arrived to find his three accomplices present (TT127-146). However White drew away from that version and said he arrived first (TT158, 164) and later said he did not know the order of events (TT159).

This welter of confusion should not have existed. Judge Ducker intervened in Summing Up at 28 trying to explain the unexplainable:

"I am about to make another comment which you are at liberty to reject.... with regard to this question ... to the confusion as to White and Frost and the conflict between them as to who got there first. One thing that you might wish to consider: could it be that White got thee first, had some conversation, went out with Smith to dirty up the numberplates, Frost arrived and then went upstairs? Is it possible that what Frost thought was White arriving was in fact White coming back in with Smith? That is only something that has just occurred to me. There is no magic in that.I do not suggest it was necessarily so, but it is a possibility you may wish to consider."

In a succinct manner Judge Ducker accurately described the contortions of the Prosecutor's hypothesis.

On the Judge's logic : since Frost said he arrived at 7p.m. and since White said he arrived first at 8.30./9p.m. then Frost arrived at 9p.m. after White; alternatively the situation could read that White arrived when he said and never knew directly or later from Frost that he had been upstairs in the premises reading papers and mistook his "arrival" in the kitchen area for his arrival at the premises.

Frost said White came in at the door (TT88) ; White said he used the rear garage to come and go when performing the 10 minute subterfuge with the numberplates (TT152-157); he did not mention a door. Frost gave no evidence of the numberplates sequence which he should have witnessed on his version.

Frost's evidence was that he was with Saleam and Smith and never said anything of Smith assisting White. At the Trial Frost had 140 memory lapses but the indicated White arriving to be introduced to the conspiracy; he had been with Saleam and Smith before the crime was mooted and on that version he gave Smith an Alibi on assisting White with the numberplates. If White was in fact returning to the premises already a party to the conspiracy, reasonably this should have been apparent to Frost - but it was not.

These errors make sense only if (a) Frost was reciting his script from some facts known to him; (b) White was trying to harmonise evidence with circumstances he was doubly uncertain of - because he had not been at the premises at all on 27 January 1989.

The confusion was increased over the issue of - the shotgun.

In one of White's variant-stories, he arrived first at the premises and was shown the gun (TT157-163). After this - logically - he was aware an offence was to occur; he then proceeded to camouflage the numberplates of his vehicle. When he returned from that operation Frost "arrived" to be introduced to the conspiracy. In this version, the gun had earlier been taken from concealment - "Wayne brought the gun out." (TT163)

However on the Crown's Opening Address and as led from White during Examination, White arrived to find the gun out on the floor next to Smith;, Smith then pumped the shotgun.

There was a contradiction here: either the gun was concealed and then "produced" - or it was on the floor in plain sight.

On one of Frost's versions of events (the one he seemed to favour) he was alone with Saleam and Smith when Smith produced the gun and pumped it. (TT27-28) There are general contrdictions and a doubt upon this phase of evidence.

It is concluded:

It seems the gun was shown to each offender separately and placed back in concealment to be dramatically produced for the other; if it is permitted to construct upon White's Statement: he arrived at the premises - first. This is most improbable. It should be observed each of my "accomplices" - conveniently - lapsed into affecting a lack of certainty as to the sequence of events, although this was more White's position than Frost's. I submit that this would be more likely if White had nothing upon which to hang his lies other than imperfect memories of Frost's Statements; at least Frost had been at the premises on 27.1.89.

A probing Cross-Examination can produce problems of "detail" (as the Crown submitted on the Appeal), but these discrepencies were not only part of a pattern but more problems in the evidence which should not legitimately existed if the Prosecution case was truthful.

This problem in the evidence began with White's 12 July 1989 "confession": it is likely White decided to fabricate a confession acceptable to Special Branch : only the acceptance of that proposition could explain the chain of errors described.

(ii) A Contradiction On The Matter of Prior Knowledge of The Offence.

Frost always maintained that when he arrived at the National Action offices on 27 January 1989, he did not know what was to transpire and was only told when White arrived (TT108). The notion that neither offender knew what was to occur was endorsed by White (TT127).

However, White also said that Frost had prior knowledge of the offence because he was at Tempe first and because there was a friendly relationship between Frost and Smith. It was an "assumption" on his part (TT147,167).

This evidence shows a truth not obvious in the adversary context :

White simply could not maintain the general lie perfectly; it had to break down at various points ; this evidence could be a collateral proof White was not at the premises to conspire the crime ; this evidence reflects the proposition raised on this Application: the conspiracy belonged first to Frost and White was his dupe.

(iii) A Contradiction On The Issue Of Obscuring The Numberplates

Frost's Record of Interview of 14 June 1989 was a Trial Exhibit.

In this document Frost was asked if any attempt was made to disguise the crime vehicle (a most perceptive question for Ireland to have asked if previously he did not know what had occurred specifically during the conspiracy phase of the crime). Frost answered that the numberplates were "already darkened".

Significantly while Frost in his Statement of 15 November 1989 gave a version of White and Smith darkening the numberplates with oil and dirt (per White's Trial evidence), he did not give this evidence at the Trial.

Reasonably: the lies were all to much for Frost to recall ("I don't remember what's in those Statement things" (TT88). White's Trial evidence on this issue was extensive and he gave an account of himself and Smith performing the oil-dirt camouflage operation on the plates (TT 152-157) outside of the premises. It is unlikely that White could have performed such an operation without being seen by Frost or to Frost's knowledge.

The numberplate-camouflage sequence was blemished by contradiction and, if any disguise was undertaken (see "Grimwood" below), this evidence was designed to conceal what really occurred. Frost referred to "ALREADY DARKENED" numberplates. Whatever that may have meant he declined (suggestively) to develop it at trial by mentioning other actions affected for the offence and hence he failed to confirm his 15 November 1989 Statement which corroborated White; the state of the evidence at Trial endorses the position I take on this Application - the offenders' car was disguised by another method and not at the National Action premises.

(iv) The Identity of the Crime Victim: A Contradiction

Frost deposed he was told by Saleam that the target of the crime was Eddie Funde, that he was associated with the African National Congress and that he was told these things after "Mick White" "arrived" at the National Action offices at 9.30p.m. (TT30, Record of Interview). In contradiction, White mentioned that whilst he was aware that Funde was the target of the offence, he did not know Funde was a member of the ANC until the following day when he read this fact in the newspapers (TT142-144). Only then did he know Funde's identity.

The likelihood of White not being told of Funde's political affiliations (ie. "identity,") could be judged - negligible. There has never been any evidence to suggest White was a criminal mercenary; consequently it is unreasonable to assume White was not given a motive for his participation in the offence. On the Prosecution case, the two offenders were together for some time prior to the commission of the offence and it would be nonsensical to assume they did not discuss the crime they were about to commit, and its purpose. On this Application I must maintain White knew what he was doing and why he was doing it.

This evidence must have been perjury but the reason for it remains somewhat problematical. Of course, White gave this self-serving evidence at his Sentencing and may have felt obliged to go on with it; it could be White was simply mendacious; however, this evidence could be a conduit to the truth: White would not know what if anything was ever discussed between Saleam and Frost at the National Action offices because he was not there, and to minimise his role in the crime he maintained a lie.

(v) A Photo of Eddie Funde at The NA Offices: A Suggestive Contradiction.

Under Trial Examination Frost said there was a photograph of Eddie Funde in the downstairs area of the Tempe premises (TT25). He did not say when this item was present relative to the date of the offence although logically, since he gave this evidence, some suspicion of close proximity to 27 January 1989 could be inferred.

I denied the existence of such an item; I affirm this position.

Under Cross-Examination, White said he had never seen any such photograph (TT144). It was common ground that White had been coming to the premises for some months.

Of course, this material does not dent the Prosecution's central allegation (ie. Frost could have been truthful and White only unobservant on a minor point), but it was still another point of near pointless contradiction - unless of course it was a distorted expression of the concealed truth:

Frost was obliquely referring to Funde's residential and other details copied by him at the NA offices on January 11 1989; in this regard Frost would be altering the evidence to inculpate me.

(vi) Where Was The Shotgun: Another Indication of Concealed Truth.

As the gunmen were departing the Tempe premises, Frost said the shotgun was placed in the boot of the car (TT30,31,33) (He confirmed this evidence from his account of events just prior to the shooting itself when he took the gun from the boot of the vehicle, checked the Funde premises and returned to the car.) To the contrary White deposed that the gun was placed in the back seat of the vehicle (TT130, 166) as the men departed the premises.

I have always conceded this minor (though pointless) discrepancy does not threaten the central allegation of the Prosecution; it would have been poor recall of events (on any version) which traumatically affected the offenders.

However, this discrepancy has significance if each man was describing two separate incidents : one occassion when the gun was in the boot, another when it was in the backseat of the vehicle. White could have been referring to an occasion when the gun was collected from wherever it was obtained and placed in the backseat. Whatever the case this piece of contradiction should not exist in the Prosecution's case.

This evidence goes beyond "detail" and could have additional meaning for the plethora of contradictions following in (vii).

(vii) The Problem of the Hotel Location and Timings Indicate Perjury From Frost and White.

I have referred in the sub-section dealing with Frost's evidence of the significant alteration in his version of the places travelled after the offenders left the Tempe premises. I recount here the substantial contradictions between Frost and White upon this matter.

(a) After first reaching the Croydon crime scene and examining the area around Funde's home, Frost said he and White travelled to a hotel some 20 minutes drive from Croydon (TT31, 93, 111). White however said the journey took 5-10 minutes (TT130, 214) and that it took the same amount of time to return (TT214).

(b) The location of the hotel was a problem. Frost spoke of a working class area possibly around docks (TT82-5, 110-111) after he repudiated his Record of Interview - 15 November 1989 Statement version which maintained he was in Balmain. Frost confirmed at Trial his 2 December 1989 Statement as the true version. White thought the hotel was in Croydon with a suggestion of Ashfield although not necessarily on the highway (TT130, 135-7).

(c) Frost said some 45 minutes were spent in this hotel (Record of Interview, (TT82; White said a half hour was spent there (TT130) although in his 12 July 1989 confession he said an hour as a guess (TT177).

(d) Frost said that, when en route back to Funde's premises from the hotel, the men became "lost" (TT93) and there was a definite implication that it took longer to return to the crime scene than the journey from Croydon to the hotel.

In contradiction, White said the men were never lost (TT218).

(e) Frost said the men arrived back at the crime scene at 11.20/11.25p.m., a most precise answer (TT32). White could only say the men returned "11-ish" (TT131).

These contradictions were substantial and fundamental. While it is the case this material does not - alone - establish that there was no conspiracy between Saleam, Smith, Frost and White, this evidence was nevertheless a major problem for the Prosecution. To render the stories of Frost and White congruent, it was necessary for the Prosecution (at Trial and Appeal) to attribute to Frost and White an incredible set of errors of description and observation or to have invited a jury and thence an Appellate Court to set aside the version of one man in favour of the other or to speculate upon another version consistent with my guilt.

All this was unreasonable.

The Prosecutor also misled the jury on these "discrepancies"; she advanced in Final Address the unsubstantiated theory that the men went to the Sydney suburb of Drummoyne after checking the Croydon crime scene, a notion at variance to Frost's and White's evidence. There were two choices only: working-class-area-akin-to Balmain-near-docks or Croydon-Ashfield evidence. There is no doubt from this conduct the Prosecutor was well aware of her difficulties with this evidence. Drummoyne hardly is a suburb descriptively akin to Balmain and there are no docks; it is not an area similar to Ashfield - Croydon.

The Trial-Appeal process has failed with this problem in the evidence and that a question or doubt upon this material exists such to support (as one pillar) this Application for an Inquiry into these convictions. It may be theoretically possible for a jury (which all but binds the Court of Criminal Appeal) to sever the two stages of the Crown version of the offence (ie. the conspiracy phase at the National Action offices and the actualisation phase) and reason that, since my supposed "accomplices" were not shifted from the central accusation any infirmities in (or even the total discrediting of) their evidence on the actualisation-phase , I commanded the operation of the crime. However, in this case the entire Prosecution version of the events of 27 January 1989 was a single melange which cannot be so neatly compartmentalised; the crime from conspiracy to actualisation was only a matter of hours; a problem in the actualisation phase reflects upon the entire argument.

The contradictions must be summed together with the Defence version. The Defence version was that Frost left the Tempe premises around 9.30 p.m. and had ample time to team up with White; the men probably visited two hotels, one prior to, and one after, the offence; possibly, the firearm was thrown "in the drink" (Sydney Harbour, near Balmain).

The contradiction in the Frost/White evidence squarely raises a question as to whether the Defence contention could indeed be - the truth.

(viii) One Strange Coincidence Which May Show The Truth

There was one curious matter which may indicate the truth or show why these contradictions in Points i-vii exist.

(a) Frost said at the Saleam/Smith Committal that he didn't expect to testify against anyone else after making the Record of Interview; he said he was hoping that he would not have to testify. (TT92)

(b) White said that he was told that there was a chance he might not have to testify. There was a powerful implication in this phase of White's evidence that whomsoever "told" him this told him at the time he made his June 18 1990 Statement concerning the supposed intimidation he received on Dec. 5 1989 just prior to giving evidence at the Saleam/ Smith Committal . He had assumed this case was "finished" with (TT220).

For both Frost and White to have believed they might not have been required as Prosecution witnesses in a criminal Trial, given the situation in which they were clearly immersed, was improbable in the extreme. In White's case he was supposedly told this at the very moment when he was authoring yet another Statement effectively accusing me of a further offence - threatening a witness (ie. himself). In Frost's case he was probably unaware of the effect of making allegations in the first instance and hoped against hope he would not be required.

It seems that neither "accomplice" was a willing Prosecution witness and they appeared as dupes of irregular Special Branch methods; clear suggestions existed that Frost and White wished to avoid testifying which would be reasonable if each imagined that the (earlier) making of Statements incriminating Saleam and Smith were ruses to gain leniency at Sentencing and were stories neither believed he would have to repeat against others. There is a question as to whether a Special Branch conspiracy existed.

General Submissions follow at the end of this section.

6. A Consistent Defence Crime-Version At Trial Raises a Doubt As To Saleam's Guilt

Unlike many "accomplice" Trials I called exculpatory evidence. It is conceded both per the CCA Judgement (44) and the Crown's Final Submissions (para 8) that my witnesses Shane W. Rosier and Jane Saleam were not unbiased witnesses; however, it is again asserted their evidence was essentially unblemished. For my own part, I made an unsworn Statement. This course of action I now regret in view of the conduct of the Trial. As shall be argued later, my intention to make a Statement rather than give sworn evidence, became known to ASIO (a month prior to Trial) and my `intention' may have dictated some actions relevant to my overall contention that a "Dirty Tricks" operation was put in motion to pervert the course of justice. Nonetheless my Statement was exculpatory and nothing arose in it which was of assistance to the Prosecution; indeed in Crown's Final Submissions (para 7), the Prosecution has referred to my "erudition" and the "length and detail" of this Statement.

(i) The Saleam Statement

My Statement covered the gamut of the Prosecution case. I assert the truth of these individual matters contained therein.

(a) I denied having a motive for the Funde crime both on racial- political grounds and as a result of the peculiar manner (ie. via Brian Clark - David Morley) through which I obtained the Funde residential documents.

(b) On January 9 1989, within an hour of receiving Funde's details, I met with Detective Ireland at my offices and I told him of the purpose of Morley's visit. I denied subsequently committing the crime in which I could only have known I would be a major suspect.

(c) I discussed Funde's address details and Clark-Morley with Frost on January 11 1989; Funde's address details were circulated at my premises if Frost wished to steal them and otherwise copy them.

(d) I said that contrary to the Frost/White evidence that they had never met prior to 27 January, I had seen the men together at a party I held at the Tempe premises on/about 20 January 1989.

(e) I denied having sufficient knowledge of Michael White's character such that (if I was so minded) I would involve him in a serious offence.

(f) I gave a version of events at the National Action offices exclusive of the crime-conspiracy. I said Rosier arrived at 7p.m. to do a book stocktake, and repaired to the shopfront; Frost arrived near 7.30p.m. to discuss his NA membership; he left (upstairs in my office) the form later produced by the Defence in evidence; Frost read newspapers upstairs for a while and came downstairs at about 8.30p.m. where I was writing. I left the premises at 8p.m. to attend Newtown Police Station and returned about 8.20 p.m. Frost and I discussed sundry matters and he left the premises about 9.30p.m. I had no idea as to his intentions. My wife had been upstairs, ill, in our bedroom since the afternoon. About 9.30 I went to her, had a brief conversation and repaired to the kitchen to make tea. We watched television movies together. I said neither White nor Smith had been on the premises; there was no conspiracy and no shotgun. Rosier left around 11p.m. Another man (a resident) Rodney Cuneo arrived at the premises thereafter and had a shower in the upstairs area.

(g) I denied attending Michael White's premises on either 28.1.89 or 29.1.89 to recover a shotgun. I said on both days at the time nominated I was in the company of my wife; - on 28.1.89 I purchased a dog; on 29.1.89 I went with my wife to a restaurant.

(h) I denied a conversation with Detectives Ireland and Poniris on 30.1.89 in which these officers maintain I told them that on 27.1.89 I had been at my offices with Smith and my wife watching video movies. I called this "monstrous verbal".

(ii) The Evidence of Jane Saleam

(a) Jane Saleam said that on January 9 1989 Detective Ireland attended the Tempe premises and was told of the Clark-Morley visit and his offer of Funde's address (TT346-7)(TT351).

(b) Jane Saleam said Funde's address and the Clark-Morley visit were matters discussed widely at National Action offices prior to the offence (TT350).

(c) Jane Saleam said she had seen Frost and White together at a party at the National Action offices (TT345)

(d) Jane Saleam said she became ill in the afternoon on 27.1.89 and was confined to an upstairs bedroom. She said she did see Frost up-stairs in the premises that night (TT347) although he did not recall seeing her (TT54); she denied seeing Smith at any time on 27.1.89 (TT348) which contradicted any assertion in Frost's evidence that Smith had been upstairs in the building and repudiated the thrust of the Ireland-Poniris "verbal" of 30.1.89 which had Smith, Jane Saleam and James Saleam together watching video movies. She said at about 9.30p.m. I joined her and she requested I make tea. I returned from the kitchen area about 9.40p.m. and we watched a television movie together. (TT347)

(e) Jane Saleam said Jim Saleam was with her during these hours nominated by White (both on 28.1.89 and 29.1.89) as the time when we supposedly collected a shotgun from his premises.

(f) Jane Saleam gave some evidence of Frost's intense interest in South African politics which established Frost as a person with a motive in the Funde crime. (TT345, 352)

Jane Saleam's evidence which was in substantial ways in flat contradiction to the Prosecution case (particularly on elements of the `conspiracy phase' of the crime) was never sullied.

She was naturally Cross-Examined that, as a wife she was potentially untruthful or biased; however, the Cross-Examination revealed nothing of any benefit to the Prosecution. She was not moved from her evidence and no contradictions or blemishes emerged therein. If the Jury rejected this evidence it did not do so because of any evidentiary reason or because of the "demeanor" of the witness; it was either because it simply "chose" the scarred evidence of Frost and White or because it became confused by the Dirty Tricks operation of ASIO/Special Branch (as below) and opted to reject the Defence crime-version. I submit Jane Saleam's unsullied evidence raises a doubt to the Prosecution case.

(iii) The Evidence of Shane Rosier

(a) Shane Rosier said that he arrived (by arrangement with Saleam) at the

Tempe premises on 27.1.89 to conduct a stocktake on materials held in the bookshop; Frost arrived some 20 minutes later and they acknowleged each other. (TT318-320)

(b) Rosier said Wayne Smith did not attend the premises on 27.1.89 and he certainly would have seen him in the kitchen area if he had been there. (TT321)

(c) Rosier said Michael White did not attend the premises either. (TT321)

(d) Rosier said Frost left the premises about 9.30 p.m. after conversing with Saleam for some time in the downstairs area of the building. (TT320-1)

(e) Rosier said that at no time did he witness any firearms in the kitchen-laundry area. (TT321-2)

Rosier was - of course - aggresively Cross-Examined to a number of convictions for firearms and weapons. The Prosecutor also established one contradiction between his evidence and Saleam's Statement; Rosier said he did not see me leave the premises at any time (TT321, 329) although such a contradiction is not of great importance.

Shane Rosier's evidence, which was directly contradictory of the Prosecution case, was not successfully impeached. Rosier was not moved from his central evidence.

As occured with Jane Saleam's evidence, the Jury chose to reject it; whilst the Jury could have formed an unfavourable view of a man with convictions, it was a leap in faith to "choose" the blotched evidence of Frost/White; an apprehension of the corrupt nature of the Defence derived from the ASIO/Special Branch operation could also have caused a jury to reject Rosier, but that could not be an indictment of Rosier's credibility.

On balance, Rosier's evidence casts doubt upon the Prosecution crime-version.

General submissions follow at the end of this Section.

(iv) The Evidence of Bradley Flowers

His Honour Judge Ducker said:

"Last of all there was another witness who was an important witness in this case. There is no doubting that because if you accepted it or if this witness raised a reasonable doubt in your mind then you would have to reject Frost's version of things." (S.U. 42)

I also demonstrated Frost was confronted with Flower's evidence during Cross-Examination; he did not respond well to this confrontation and His Honour confirmed this by implication :

"He denied any recollection of speaking about Funde to Flowers. You heard and saw that Cross-Examination and you have heard the comments made by learned Counsel for the accused about how well Frost stood up to it." (SU25)

I establish here the importance of Flowers' evidence in this Trial, not only for the purposes of the Section which examines the issue of the ASIO/Special Branch threats directed at Flowers and discussed by him in evidence, but for its general relevancy.

(a) It was common ground that Flowers was acquainted with Frost because of his relationship with Kerry Flowers, sister to Bradley Flowers. Frost had visited Flowers' home; Frost once delivered books there which were concerned with fascism; Flowers had assisted Frost move his personal possessions from a house in Eastern Creek; they had met on occasion at a hotel at Rooty Hill. After Frost's arrest on the Funde charges, Flowers had placed him in touch with a Solicitor and there was agreement they had discussed Frost's legal predicament (1989-1990) - although the content of these conversations was disputed at Trial. The relationship was certainly one which could favour the notion that Frost discussed the Funde case with Flowers.

(b) Flowers said Frost owned a shotgun (TT379) which Frost reflexedly denied. Whether this gun was a pump-action weapon or not and whether a pump-action shotgun was in truth used in the crime or not, Frost's denial that he had ever owned any shotgun was important to the Prosecution case. The contrary was of course crucial to the Defence proposition that Frost organised the crime by himself.

(c) Flowers admitted to some criminal convictions and agreed there was some personal animosity between him and Frost; according to Flowers this arose from an assault by Frost upon Kerry Flowers (TT427-428) whilst according to the Prosecutor it resulted from his intervention in an assault by Bradley Flowers upon his wife (TT442).

To raise personal rancour of this nature as a motive for Flowers to commit monumental Perjury (as the Prosecutor alluded in Final Address) would be extreme.

(d) Flowers evidence was wide reaching in any assessment of the credibility of Jason Frost. It divided into two general time phases for his dealings with Frost : pre-January 27 1989 and post January 27 1989.

- Flowers repudiated that it was only on 27 January 1989 that Frost was told of Funde's address details and of the offence plan. Rather, Flowers deposed to Frost outlining his hatred of Funde in December 1988 and of his desire to cause Funde harm (TT377-8); Flowers recorded that about 2 weeks prior to the offence Frost described his plan for an offence against Funde (TT419); Frost had said he had a gun and was "lining up" a car (TT380). Frost said it was his plan and he was going it alone (TT380). Flowers did not take Frost seriously. This evidence raises a question as to Frost's version of events.

- The crucial evidence remained Flower's conversations with Frost after his arrest for the Funde offences. Before I address the problems which caused the Prosecution at Trial and Appeal to be at its most censorious (ie difficulties arising from the dating of the alleged conversations) I record the following extracts from Flowers' evidence:

"Jason said: I went down to the Balmain area and disposed of the shotgun. I threw it in the drink. I got rid of the cartridges." (TT382) He repeated this again. (TT421-422)

"Isn't this case finished with?' Jason said: `Not according to the police it's not.'" (TT382)

"I asked him if National Action was involved in the case. Jason said `No', that he'd organised it himself." (TT382)

"I asked Jason about the plan of what he had done. He had said that he had wanted to plan it himself. He wanted to gain status. He thought that the National Action would be pleased by what he had done." (TT382)

"He told me that the police had been putting pressure on him....Jason said to me `The police want me to make a statement about-against Jim Saleam' and I said: `Isn't that case finished, over and done with'? He said `Yes but they want me to make a statement about the matter'". (TT385)

" I said to Jason: `Was Jim Saleam involved in the case?' He said `No'. He said to me that the police wanted him to make a statement saying Jim Saleam had ordered him to go out and attack Eddie Funde and I asked Jason if Jim Saleam had ordered him to do so and he said, Jason said, `No', and I said, well I said to Jason `How can you make a statement if this guy Jim wasn't involved?' and he said: `Well the police are putting a lot of pressure on me.' `I said `Well you know if you have done the crime by yourself, you know you have to take the consequences..." (TT385). "He said to me that he did not want to sign Jim up in a statement because he had nothing to do with it but at the same time he said that the police would make sure he got a lengthy sentence on his appeal and that he would lose the appeal." (TT385)

"Yes he told me that if he made a statement...he said to me: `If I make a statement saying that Jim Saleam was involved in the case, that the police would make sure I wouldn't go to jail." (TT385)

"...he fired on Eddie Funde's house and from memory he told me that he went down to somewhere around the Balmain area to get rid of the shotgun and he said that he threw it and went and had a drink.... he told me that he disposed....Jason said he'd dispose of the cartridges but he never told me what he had done with them." (TT421-422)

He said "Down around the Balmain area. He also mentioned that he went to a hotel down there somewhere." (TT422)

Clearly, without circumlocution these conversational fragments must be assessed, regardless of any assault which could be placed upon them, as of no mean bearing upon this case. Despite the Crown attack which ensued, Judge Ducker in his Summing Up felt obliged to give Flowers' evidence weight in the proceedings, and I have reaffirmed the value of Flowers' evidence upon the current Application.

(e) There were some reasonable inferences in Frost's evidence suggesting that these conversations may have occurred. As noted above Frost did not handle his Cross-Examination on this subject with any deftness. He was not even sure if these conversations had occurred (TT66); "I can never remember that", he said. (Or perhaps he just did not want to remember?) He said "maybe" he had contacted Flowers about the case prior to May 1990 (the last time he saw Flowers) (TT65). "Well I don't know about the rest of that, but he told me, `you do the crime, you do the time'" (TT64) which agreed with the Flowers version that he told Frost to accept the consequences of his actions (TT385).

Frost's uncertain evidence of the Flowers' conversations lent versimilitude to Flowers' version of events. (f) Two problems for the Defence existed in Flowers evidence which were seized upon with alacrity by the Prosecution to attempt to discredit him:

- the problem of the dating of these conversations in view of the Sentences received by Frost.

- the problem of rendering sensible the question of Frost's `concern' (on Flowers version) at making a Statement against Saleam when he had already done so.

I shall disentangle this for the purposes of this Application and make some submissions.

Flowers said that he had spoken to Frost at two particular times.

Firstly: "he told me that he had been sentenced on the Eddie Funde case and that he was Appealing against the Sentence, that he was out of jail pending the Appeal". In fact Frost did not appeal his Sentence on the Funde charges; but Flowers knew that Frost did Appeal "a full time prison sentence" (TT243) (this was correct in so far as Frost did Appeal a prison Sentence), but Flowers was confused as to the relationship between the Funde charges and the prison Sentence (TT425-6).

Flowers believed Frost received "weekend detention" as the result of the successful Appeal and this reversed a prison Sentence given on the Funde charges (TT382). Flowers also deposed that Frost "got off light" on the Appeal case, but did not recall the Sentence (TT426). This implies Flowers met Frost to learn of that circumstance.

The Trial Court was given the facts: Frost was Sentenced on November 10 1989 on the Funde matter - to "weekend detention"; Frost was also Sentenced by a magistrate on November 21 1989 to 2 Sentences of 3 months (accumulative) on charges of malicious damage and violent disorder. On May 4 1990, Frost's Appeal on these prison Sentences was upheld and a non-custodial Sentence imposed.

Clearly Flowers was wrong if he thought Frost Appealed the Funde sentence; however while the Prosecution could (and did) make much of this to muddy the waters, it was also suggested Flowers was wrong and that his attempt to date the conversation with Frost, a sham.

In contradistinction that Flowers' error was obviously one of recall not one of falsity; Flowers certainly knew Frost had Appealed a prison Sentence and had made a human error.

There was an inference that one of the Flowers-Frost conversations took place AFTER November 21 1989 and prior to the Saleam/Smith Committal of December 4,5,6, 1989. Flowers was asked :

"Q.Did he ever tell you at any stage that he had given evidence against Mr. Saleam in Court?
A. No he never told me that.
Q. Never mentioned that?
A. Not that I recall, no.
Q. So he only ever talked about making Statements, not giving evidence?
A. Yes."

This conversation makes particular sense when we appreciate Frost had made a Statement on November 15 1989 but the Committal was weeks away. There would be no mention of having given evidence; there was also no reason for Frost subsequently to have told Flowers he had given evidence at the Committal. Flowers asked him "did you make a Statement?"

The "doubt" upon this Application is this : there was a reasonable inference Frost was debating with Flowers giving evidence but doing so in a peculiar manner ; Frost's mental processes were torturous and if he never told Flowers that he had in effect made the Statements of June 14 1989 and November 15 1989 already, he could easily have been discussing the merits and virtues of giving false evidence at Committal.

The Prosecution concluded Flowers was lying because Frost had already made Statements (which caused the Record of Interview of 14 June 1989 to pass into evidence so as to belie "recent invention") and could not therefore be debating whether he should make a Statement.

Flowers said he had "a terrible memory with dates and times over long periods of time" (TT386); he said Frost always seemed "vague" to him (TT418). Flowers certainly had no reason to recall any of these conversations until he was approached by me in 1991. It certainly seems likely on balance between Frost and Flowers that there was a meeting around May 1990 where Flowers learned Frost had won an Appeal and some other meeting ("maybe" said Frost TT67).

Unlike the variable evidence of Frost and White the evidence of Flowers on this dating problem and the Sentences merely suffered from reversal of order. Flowers said Frost was very worried about losing an Appeal and worried that the police might ensure he did lose (TT388). Flowers demonstrably knew many facts about Frost's legal problems.

Crucially, Flowers had no motive to lie. The confusion in Flowers' evidence indicated forcefully that no conspiracy to give false evidence could reasonably have existed between myself and Flowers; I would in that case hardly have encouraged such errors as appeared; I argue that Flowers' evidence should never have been rejected and that, since it was rejected, another reason for this must (and will) be located.

Essentially, the rejection of Flowers' evidence arose from threats he had been receiving in the weeks leading up to the trial and his kidnappping by two men on the day he was due to give evidence. It will be explained to you that these threats and the kidnapping arose from a dirty tricks operation designed to prejudice the trial. I will delve deep into this later. For now, let us just consider the evidence of guilt/innocence in order to appreciate the miscarriage of justice which took place.

Some General Submissions : A Residual Doubt

Although particular Submissions have been advanced at each phase of the crime-evidence I would draw some conclusions which will serve as General Submissions in support a Crimes Act Inquiry:-

1. The case for both Prosecution and Defence had been a case devoid of evidential certainties; it was a case where the cases for both sides was partisan oral testimony; this situation is one where a residual doubt must generally be present if the Defence version of events was never impeached.

2. The evidence of the offenders Frost and White did possess some points of general consistency, a circumstance not at variance with the proposition that scripted perjury must necessarily maintain consistency at its central core.

3. The evidence of the offenders Frost and White was possessed of an array of improbabilities which pointed to an irrational course of events - if the Prosecution proposition that Frost and White were truthful witnesses was to be taken seriously. The absence of motive, false attribution of motive and some circumstances described, forge a suspicion that the Prosecution allegation was false and hence a residual doubt as to my guilt exists.

4. The evidence of Frost suffered from an array of internal contradictions and discrepencies on events during both the "conspiracy phase" of the crime and during its actualisation phase. Frost's choice of language, his occassional bizzare comments and uncertainties were suggestive of mental infirmity and fabrication. Frost appeared at Committal and the Trial as an "accomplice" in law. He had been under the gun at the Saleam/Smith Committal, where in a variation of R v Payne, he was beholden to the Prosecution upon other legal matters when he first gave sworn evidence. There is a residual doubt as to my guilt upon the whole of Frost's evidence.

5. The evidence of Michael White suffered from an array of internal contradictions and discrepencies, both on the conspiracy phase and the actualisation phase of the crime. White affected a doubly confusing manner. White appeared at the Trial as an accomplice in law and his credibility was undermined by the `indemnity' for perjury granted in respect of evidence at the Committal (Sections 4) which not only established (per both Prosecution and Defence) that White was capable of telling untruths, but which obliged him to proceed with a certain version of events inculpating of Saleam and Smith or risk a prosecution for perjury. There is a residual doubt as to my guilt extant from the evidence of Michael White.

6. There were a number of peculiar and debilitating contradictions between the evidence offered by Frost and White. These contradictions cannot be dismissed as the Prosecution did, at Trial and on Appeal, with the incredible Submissions: "Frost and White were both young men and one receives the impression (and it was the Crown's submission (su.17A.7,30.5-10 ) that Frost and White were apparently not overly intelligent young men prone to become confused under Cross Examination. Because of the situation in which the discrepencies arose, the Jury was in a far superior position ... in assessing whether there were discrepencies and the effect of them on credit".

Such a Submission licensed effective stupidity as a factor in increasing the acceptability of the evidence of a Prosecution witness. Rather, the contradictions described ranged broadly across the evidence and reflected grimly upon the proposition that an arrangement existed between Saleam and Smith - and their supposed agents Frost and White. Whether Frost and White were "not overly intelligent", or were of average intelligence, is not the issue at all.

The contradictions between their evidence implied a set of truths glimmering behind the Trial evidence; this became obvious on the evidence relating to the movements of the offenders after they allegedly left the National Action offices.

I have objected to the finding by the Court of Criminal Appeal that there was a lack of proximity between the effect of the contradictions and the central evidence of Frost and White which implicated Saleam and Smith in the offence; such logic can only operate within the adversary procedures of Trial and Appeal. It is submitted that while the Court of Criminal Appeal concurred with the Crown's submission on the "supposed discrepencies" between Frost and White, it did not refer to the Crown's submission that their credibility was contingent upon their lack of intelligence.

I submit that Frost and White could maintain the central fiction that the crime resulted from the importunities of Saleam and Smith, but once asked to explain the full panoply of the crime could not do so without engendering pandemic contradiction. A residual doubt exists as to my guilt through the comparison of the evidence of Frost and White.

7. There was an unimpeached Defence case presented at Trial. While I made a Statement it did not indicate any discrepancy. My crime-witnesses Jane Saleam and Shane Rosier exonerated me from involvement in the offence; their evidence went directly to the events alleged to have transpired during the `conspiracy phase' of the crime. I criticize the Prosecution Submission at the Appeal:

"Although the Appellant himself called evidence, none of it went to the central facts of the case. As with his attack on the case generally it was peripheral."

However when assessing the credibility of my witness, the Prosecution said on Appeal: ".. the persons who came to give evidence on behalf of (Saleam) were not without an interest either. Mrs. Saleam was his wife. The others were in some way connected with the organisation in which (Saleam) held sway."

The CCA agreed:

"each of the Appellants witnesses, other than Mr. Flowers was clearly involved with the Appellant.." (CCAJ44)

While the witnesses provided by the Defence were certainly connected with me, they were not moved from their evidence.

Upon the evidence of Rosier there is a residual doubt as to my guilt.

8. It is the evidence of Bradley Flowers which lies at the centre of this Application for Inquiry. The Prosecution in Ground 25 of its Submissions at the Appeal said:

"..Saleam appears to concede Mr. Flowers must have been an unimpressive witness."

I state that Flowers - for the reasons related to his "kidnapping" during the Trial (see other Sections) was a shaken and nervous man. This issue of Flowers "credibility" is trenchantly taken up elsewhere; I am not concerned how any Jury may have assessed Flowers' credibility. It suffices to say:

Flowers version of his conversations of Frost was plausible and was direct evidence of a criminal conspiracy between Frost and Special Branch. Frost crumbled before the Cross-Examination as to his conversations with Flowers; in some areas Frost corroborated Flowers' background circumstances for these conversations. The analysis offered of Flowers error in dating some conversations and his mistaken explanation of Frost's prison Sentences establishes that on balance of probabilities the conversations occurred and Frost made admissions to Flowers indicative of criminal conspiracy.

A doubt as to my guilt is extant upon Flowers' evidence; questions remain as to how Flowers' credibility came to be challenged by the Prosecution which demand Judicial investigation.

9. Upon summation: The Trial verdicts are not set in concrete. There is a doubt as to my guilt; the uncertainties, issues left unresolved and contradictions in the Prosecution evidence are suggestive of irregularity and fabrication. There is no objection to judicial review of these convictions should new evidence and new material be available to cast light upon issues at trial.

As the reader will learn, this evidence has progressively become available. The mask of State falsity will be torn off. Truth must prevail over State lies.



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.