Pardon Me:
The Anatomy Of An Australian Political Trial.
James Saleam. January 27 1999
Section Seven
The Inadequate Appeal Process:
Doubts And Questions Raised By New Evidence
And Argument At The Court Of Criminal Appeal.
The Appeal process could not correct the miscarriage of justice
which operated in the District Court trial. To introduce this point,
the reader should know, that during argument concerning the alleged
dirty-tricks from the Australian Security Intelligence Organisation/
Special Branch which surely poisoned the Trial, His Honour Mr. Justice
Carruthers said:
"One thing that the court does turn its face against is appellants asking for orders for the production of documents merely to undertake a
fishing expedition in the hope something will turn up. If we did that
in every appeal, the court would collapse under the weight of the
problems to which it would give rise." (Appeal Transcript; November
23 1992 p.7)
His Honour was subsequently even more direct:
"One thing you must understand is that this Court is not going to
conduct an investigation into this whole business. You heard what
Mr. Johnson said. He is responsible counsel here instructed by the
Director-General of ASIO and one thing we are not going to do is to
conduct an inquiry into what happened in relation to all these
matters. Carry on." (Appeal Transcript, December 8 1992, p.4)
Such candour is useful upon this Application. The issues went beyond
those which can be remedied upon Appeal. These matters can only be
addressed by Judicial investigation. That is invariably the case in all
politically motivated prosecutions. It was so in the Ananda Marga case.
Once political police get to work on the "evidence", adversary process
cracks under the weight of fabrication and deceit. I allege my Trial was
perverted by a dirty tricks operation. The Court Of Criminal Appeal
determined I would not be allowed to use its forum to pursue the
matter. I was refused access to documents.
The line adopted by Justice Carruthers went on to affect much of the
other material produced as fresh evidence on the Appeal; much of this
material also demanded "inquiry" and not appellate review. An appellant
appears before an Appeals court as a "guilty" person who must leap a
number of barriers to have new material admitted, let alone to have a
conviction quashed. Nonetheless, the perverse logic of my Appeal can be
seen by the reader here as a miscarriage of justice in its own right.
It is now clear - as a result of a resolved complaint made by me
against the Australian Security Intelligence Organization - that the
comments of the Court of Criminal Appeal advanced to exclude the issue
of a security operation amidst my Trial, were factually flawed.
The report of the Inspector General of Intelligence and Security
(March 12 1997) supports my argument that the Court was lied to by
omission. Two points shall be argued:
there was other information which could have supported my Application for
Orders to Produce; ASIO did not tell the Court such material existed ;
the answer ASIO provided to the Court Of Criminal Appeal was misleading.
This argument is canvassed in full below.
When the Appeal was finally heard on June 13 1993, various pieces of
new evidence were adduced. This Section will discuss this new evidence
(the issue of whether the Court of Criminal Appeal properly assessed the Submission that the verdicts were unsafe and unsatisfactory has been
dealt with in Section Three at length and will only be mentioned by way
of Summation; somewhat the same position can be taken in respect of the
new evidence brought on the matter of the "threat in the police cells"
covered in Section Four). Some of this new evidence involves matters
related to the ASIO operation and it will be covered in such a way as to
not impinge upon the broad arguments which arise from new material
and as appear in the next Section.
(a) Verdicts Unsafe And Unsatisfactory.
It was clear the witnesses Frost and White were contradictory of
themselves and each other although there was "consistency" on central
aspects of their evidence. The Court of Criminal Appeal in its
Judgment (42-46) stated the attacks upon the credit of Frost and
White were peripheral; this was plainly not so. It was further clear
that past the central consistencies of Frost/White, there reigned a
state of pandemic contradiction. The CCA decided it could not determine
the Jury ought to have doubted them and upheld the convictions.
As Section Three has demonstrated, serious questions hang over the
evidence of Frost and White. The CCA never debated these issues for
their meaning, nor was it the function of the Court to do so.
I submit:
The Appeal process was inadequate and inappropriate to the resolution
of these questions. Whether the jury ought to have doubted Frost and White
is an issue in adversary process, but not an issue upon a natural justice
application.The buck has been passed onto the jury and the system has
been given its alibi.
(b) The Evidence Of Portelli And Malincevski, White's June 18 Statement And The Cells Book Of Central Police Station.
The Judgment (pp.22-29) dealt with the witnesses called to dispute
the evidence of White that he had been threatened whilst in custody
on December 5 1989, and that this threat explained his refusal to give
the Prosecution version of events at the Committal, a fact which it was
submitted by me would effect the credibility of his Trial evidence. The
Court of Criminal Appeal focused on the principle that the evidence of
Portelli/Malincevski was not fresh evidence (since it was available at
Trial and was not called by decision of Counsel) but reviewed it
anyway, noting that it was incomplete on the issue of whether White was
threatened; the CCA observed that two other men (Martz and McKinnon)
were not called at the Appeal to round off the issue.
Given the attitude of the Court, I do not believe that would have moved
it one degree. Quite frankly, it didn't matter what I proved, the
Court simpply shifted the goal post.
It was rather beyond me - in the conditions imposed by imprisonment -
to have been able to produce all four men. Nonetheless the evidence of
the two men, when summed with the material in the White's Statement of
June 18 1990 and the Cells Book of Central Police Station, indicated
Perjury. The CCA said: "We do not agree". The CCA also said (agreeing
with the Crown) that the new material lacked cogency and put a test
impossible to contradict against the two men called: the CCA said
the men would not have admitted the threat had they made it or
overheard it.
In effect the Court left one matter open; the men Martz and McKinnon
could raise the issue to a new level if produced. More importantly,
the CCA never addressed questions such as why White could not attempt
identification of the man who threatened him, why Detective Ireland
never investigated the threat, how such a threat could have been
organized, what Ireland was doing in the Cells complex after the
alleged threat, what effect White's "undertaking" against prosecution
for supposed perjury at Committal had upon his evidence, why the Crown
has never requested an investigation of the supposed crime affected
against White; more damningly, the CCA never assessed the quality of
White's evidence on the whole affair. This was a collateral question of
crucial importance. It has never been investigated; this process can
only be affected by a Judicial Inquiry; an adverse finding against
White on this collateral issue would raise a serious question as to
guilt; a serious question already exists upon this sequence of the
evidence.
If, as will be shown in Section Eight, nothing was done by Defence
counsel at Trial in respect of the four men, primarily because of the
effects arising from the kidnapping of the Defence witness Flowers,
the finding of the CCA was inadequate and erroneous.
I submit:
The Appeal process did not address the entire phase of the Cells-
Threat evidence; nor did it find appropriately on the fresh
evidence presented. After the Appeal, a doubt or question hung
over this evidence so as to support a judicial inquiry.
(c) The Evidence Of Andrew Grimwood.
The CCA's Judgment (pp.33-37) dealt with various issues arising
from the evidence given at the Appeal by Andrew Grimwood, an
actual witness to the Funde shooting. It was incredible evidence.The
CCA has grossly mistated the situation at every step of the way. My
Application seizes upon this set of errors.
Grimwood's evidence was this:
On 27 January 1989 he was situated in Tahlee Street Croydon, diagonally
across the road from Funde's premises; he saw a vehicle approach,
stop outside the premises and he heard two loud noises which he
interpreted as shots. He crouched down inside his vehicle and observed
the car as it sped away. Grimwood described the vehicle to Police in a
Statement made on January 30 1989; he made a further Statement on 15 July
1992 for the Appeal. The vehicle was described as a yellow or mustard
coloured Toyota Corolla of 1970's vintage. This description was consistent
with the vehicle owned by Michael White in 1988-89. (See also Grimwood:
Appeal Transcript June 11 1993 pp. 16-23)
Grimwood maintained he saw the crime vehicle escape and noticed
the letters M and W on a yellow and black series New South Wales
numberplate. A few minutes later he said he saw a similar vehicle
approach again from the same direction and he took the full plate: HMW
102. Grimwood was certain he saw the same vehiclealthough on this
occasion there was only one person visible in the vehicle. He had also
given these details to police on 27 January, just after the crime.
The evidence of White had been he drove a Queensland registered vehicle
OEZ 476 with black and white plates which were - in any case - obscured
on the night of the crime by oil and dirt applied by himself and Smith.
Frost had deposed and otherwise stated that, after the shooting, he had
crouched down in the backseat of White's vehicle. This was consistent
with Grimwood; White however had said they did not drive around the block.
(Enquiries reveal that HMW 102 was an unregistered vehicle in
January 1989. It was a a Toyota Corolla with a 1977 microfilm note - unregistered. There is no material which may indicate where this vehicle
was, who had possession of it - or where the numberplates were.)
Grimwood's eyewitness account (and the CCA adjudged there was no
information adverse to his "credit") has created a problem of no
small relevance to the version of events brought forward by Special
Branch. That this was so may be suggested by the fact this Statement
was never served on the Defence by the Prosecution. This could only
be because - regardless of any consideration of relevance - the
numberplates issue was a bomb under the Prosecution case.
The Court of Criminal Appeal obscured this whole question behind a
smokescreen of admissibility and Court-room tactics. These rules of
adversary procedure are irrelevant to this Application. Firstly,
the CCA said (following on from Crown Submissions):
"What numberplates were used by Frost and White in committing their
offences, whether they were obscured and whether the vehicle to
which they were attached belonged to White were neither facts in
issue nor facts relevant to any facts in issue." (CCAJ35)
Secondly, the CCA said that I was aware of the Grimwood evidence in full,
and that I had resolved not to use it:
"It demonstrates to us that a deliberate decision was taken at the
trial not to do so, obviously for the legitimate tactical reason
that there should be no doubt cast upon the guilt of Frost and White,
...This was confirmed by the Appellant at the hearing of this Appeal
when he stated that he had instructed his counsel that Mr. Grimwood
must have identified the wrong vehicle." (CCAJ37)
I shall sort out this nonsense.
In fact, I had indeed told counsel Brewer that Grimwood had identified
the wrong vehicle but at no stage did I know Grimwood had seen White's
vehicle twice. When I subpoened the records relevant to the shooting (the occurrence pads from Burwood police who arrived on the scene), I was
looking for the times relevant to the crime in order that I could dispute
the timings provided by Frost and White for the crime. The Judge did not
allow me personal access to these documents. When counsel Brewer told me
(as I sat in the dock) Grimwood identified HMW 102, I told Brewer this
was wrong and I relied on information previously provided (garbled) by CATHERINE. "Catherine"had said Ireland had told her a witness identified
the wrong vehicle. I accepted this; Brewer accepted my misinstruction and
the matter rested.
Had I actually seen the Occurrence Pad entry, and noted that Grimwood had identified the M and W on the plates the first time he sighted the
vehicle, something very different would have occurred to me (and any other reasonable person). It implied very strongly Frost and White were either
driving a different vehicle to the one nominated or had possession of
the HMW 102 plates; this would mean the entire sequence of evidence
offerred by White in respect of "oil and dirt" would have been false;
it would have been false by independent evidence. Frost's Record of
Interview referred to the numberplates being "already darkened" and the
Grimwood evidence would have implied White had taken his cue from
Frost. It could suggest an entire sequence from what had really occurred
had become exposed to view. White would have been seen as an inventive fabricator who was probably under instruction of the Special Branch who
most certainly knew of the numberplates material.
This issue does not mean that the Defence would have run -
or could have run - a case which denied the guilt of Frost and White.
The HMW 102 material never suggested other offenders were involved.
Rather, it always suggested the truth was other than that told by
these witnesses. Even now I must aver that if I had seen the material
regarding the first sighting of "M" and "W" and yellow and black plates by
Grimwood and in my wildest exercise of tactical adversarial principle
exercised a deliberate decision not to run the issue (all things I
adamantly deny about my conduct at Trial ), it would not change the natural justice issue raised here.
The finding of the CCA was thus perverse:
"..we are not satisfied that the evidence of Mr.Grimwood would be
admissible to contradict the evidence of White on such extraordinarily
peripheral matters. They do nothing to support the appellant's case
that Frost and White acted on their own without any participation by
him". (J36)
I submit:
The evidence of Andrew Grimwood has created a doubt or question over
the convictions. It has been assessed as irrelevant to the convictions
under Appellate review where the Court of Criminal Appeal has been
obliged to tamper with logic and commonsense. The material shows that
Frost and White must be lying not only in their evidence against Saleam
but covering up the truth behind the lies.
The independent credible evidence of Andrew Grimwood is material
which is capable of further investigation upon an Application
for judicial inquiry.
(d) A Lie From Michael White: Newspaper Reports Of The Shooting.
The Appeal produced a piece of new material connected to White's
motive for the crime (as given). This course of evidence was
reviewed by the CCA (J29-32).
White deposed I had given him instructions to discharge the gun
at premises which housed Eddie Funde; White agreed I had told him
Funde's name, but not his political affiliations. He was confronted
by his evidence at Sentencing where he said he did not know the
identity of the person/persons at the premises. White had claimed
that on "the following morning" he had read in the newspapers
who Funde was. There was debate at the Trial as to whether identity
meant "name" or affiliation.
The Crown conceded there was no mention of the shooting on Saturday
28 January 1989 in any newspaper; I had previously obtained Orders to
Produce from the Court of Criminal Appeal (November 23/December 8 1992)
directed at various Sydney newspapers. There was indeed no mention of
the Funde crime on 28 January; references appeared in Sunday 29
January newspapers and in the press in the following week.
The CCA did concede:
"We are able to see an argument that, if it could be shown that White
lied when seeking to explain the obviously self-serving evidence
which he gave when he was being Sentenced himself, that is a matter
which goes generally to White's credit as a witness, but we are unable
to accept that this material relates to any issue of the appellant's
motive. If it was a lie, it went only to White's credit." (J30)
The CCA also went on to debate what White would have meant by the
expression "the following morning"; I have already referred to
this expression which appeared in White's Statement of October 30
1989 and Superintendent Ireland's Statement of Facts produced at
the time I was charged on October 13 1989.
While this area of new evidence could not of itself disturbed a verdict at Appeal, it was clear White was making up stories as he went to
present himself in a favourable light. White must have known the nature
of the crime in which he was engaged and must have known who Eddie
Funde was and what his affiliation was - or he would never have committed the crime. White was not a criminal mercenary, a gun for hire;
according to the Prosecution, he was a naive youth inveighled in
a political organization directed by me. On this version I had to
persaude White to commit the offence - and hence I would have been
obliged to give White a motive.
I submit:
This small area of evidence brought forward at the Appeal showed
Michael White capable of invention and Perjury. There is a residual
doubt or question over this evidence which favours my Application for
judicial inquiry.
(e) A Legal Absurdity: Court Of Criminal Appeal Ruled That Saleam
Convicted Himself By Trial Tactics.
It is my Thesis that a conspiracy to pervert the course of justice
operated by the Special Branch was present during the Trial. The
conditions under which the Defence laboured were conditioned by
this process. At pages 4-11 of the Judgment, the Court of Criminal
Appeal debated the issue of the refusal by the judge to adjourn the
Trial at the conclusion of the evidence of Bradley Flowers. Counsel
sought an adjournment to make enquiries to establish independently the
kidnap facts alleged by Flowers.
The Court of Criminal Appeal argued that the time to have sought the
adjournment to look into the matters of Flowers' kidnap was before his
evidence was given - not afterwards at a time the CCA said: "Mr. Flowers
did not fare well in Cross-Examination". (Judgment p.8)
More damagingly, the CCA said: "The inference is clear that the
application was made at that stage only because Flowers had proved
to be such a poor witness. (p.11). The Defence certainly did note
the problem of credibility raised in the "kidnap" evidence; the Defence
always felt it had no real choice in this area but to lead the evidence.
After all, Flowers was a witness who shook as he gave evidence. His manner
was that of a frightened man. It was his manner that 12 very ordinary
"jurors" could use to decide he was a liar.
Amazingly, the CCA found:
"The fact that the evidence caused detriment to his case (by
discrediting the evidence which Flowers gave against Frost, whether
or not it also made the jury suspicious of the appellant's involvement
in the kidnap) was an inevitable consequence of that decision
deliberately taken." (CCA 11)
It was never considered by the CCA that the Defence had been destabilized first by Ireland's reference to the Smith murder and then by the
kidnapping - indeed by the oppressive atmosphere under which it worked.
If there Trial tactics at work, it all came from the Prosecution and the
Special Branch.
Regardless of Defence tactics (and I have consistently disputed the
guesswork of the Court of Criminal Appeal), it has taken to the
point of absurdity the rationale underpinning adversary justice and
has arrived at a situation which does an injustice. The Court of
Criminal Appeal has - in effect ruled - that I convicted myself in
tandem with Defence Counsel Brewer.
The CCA found the Jury would not have considered that Saleam was a
party to the Flowers' kidnap (CCAJ10); quite bluntly, the Court does
not know what the Jury would have thought. This Trial was constructed
by the Prosecution at every point to create prejudice against me.
The murder of Smith, the intimidation of Michael White, the kidnapping
of Flowers were all inflamatory issues. The atmosphere of the Trial was
of similar vintage to the Ananda Marga trials and the Hilton Trial of
1990. The Flowers kidnap (see Section 8) arrived just at the right
moment for the Prosecution in timing which could not have been more
opportune - unless it was planned.
The Court found: "Upon the information before the judge, he was in our
view entitled to refuse the adjournment sought." However, this judge
never knew ASIO had conducted a security operation against me; he did not
know ASIO/Special Branch were theoretical suspects in any kidnap once it
was established that I had discussed Flowers' evidence within a metre of
the ASIO transmitting device at my offices!!. The judge ruled that the
rules of evidence were such that we were not entitled to obtain "credit" evidence to shore up Flowers. Regardless of what he was entitled to do at
the time, it is absurd to uphold a previous position as worthy of
sustaining a conviction when the factual basis to sustain the ruling -
is found to be wrong.
The CCA ( CCAJ11) rejected the idea the Defence was compelled to lead the Flowers evidence because the Crown could obviously cross-examine Flowers
about the harassment evidence (ie. the telephone threats which were
supposedly from National Action) as distinct from the kidnapping material
which we "opened up" ourselves. The Crown gave signs it would go in hard
about the harassment. Defence Counsel Brewer was not at fault by leading Flowers' kidnapping evidence. It was the Court of Criminal Appeal which was
at fault in not examining the Trial Transcript at TT360-4 for the clear
signs of the Prosecution's intent.
The Prosecution clearly intended to suggest to Flowers that he had
received threats from people who claimed to represent me, and that he was
lying now. This is where the Prosecution ambushed the Defence. Defence
Counsel considered he was obliged to counter that, and the nervous
manner of the witness, by evidence about the kidnap. He was not ready for
the proposition that the Defence did the kidnap! (see below)
I submit:
An Application under Section 474 of the Crimes Act is a natural
justice Application. The adsurdities and connundrums which can
arise from the adversary rules of a Trial can be most successfully
highlighted in cases such as this one. No reasonable person
could do other than see that the Court of Criminal Appeal has ruled
that my convictions were partly produced by my own tactical decisions
taken in conjunction with Counsel. No conviction can be considered beyond question where this condition exists. A doubt or question exists which
validates this Application for review of these convictions.
(e) The Court Of Criminal Appeal Made A Major Error Of Fact
In Respect Of The ASIO Operation.
The Court of Criminal Appeal made a major error of fact. In the
Judgment (pp.19,20) we read:
"Counsel (and thus presumably the Appellant) were aware by the time
that the Trial began that ASIO or the Special Branch - or some Special
Task Force within the State or Federal Police had "an active Tap
within the premises that didn't rely on the telephone being picked up"
(evidence given on 23 November 1992 CCAT 19,22). Whatever inferences
may be drawn from the material upon which the appellant relies, the
material itself was available to be led at the trial so that the jury
could have drawn them."
"It did not matter to the appellant's theory that it was ASIO rather
than some other police unit which was responsible for the kidnapping;
his argument at the trial was that it was the Special Branch and the
defence team was aware at that time that some police unit such as the
Special Branch had a permanent listening device installed at the National
Action headquarters."
This was absolutely untrue.
I aver as follows:
Before the time of the Trial I formed an opinion my telephone line
was monitored. I also had the view "frequency flooding" was being
employed, a process which allows the entire telephone handset to
become a microphone unit for the recording of conversations within
a room. I told Counsel Brewer of my suspicions early in the Trial
when Flowers told the Defence he had been receiving harassment. I
repeated this to Counsel Brewer after the "Flowers kidnapping".
At no time was I aware ASIO had installed a transmitting device.
I only learned this shortly before June 25 1991 when I was brought
to the Glebe Coroner's Court where I was produced as a witness in the
Whitehouse murder case. I said this to the CCA on November 23 1992
(CCAT 9, 26-30).
I also say and affirm the actual ASIO transmitting device caused
to be recorded my conversations about the "frequency flooding"
technique and the need to pull the telephone plug from the wall
during confidential conversation. It would also confirm my fears
the building could "be bugged", but would not suggest knowledge
this was so; in fact the actual ASIO records would imply I believed
it was probable the building was not bugged.
I also say that a reading of the Appeal Transcript (23 November
p.26-30) makes it very clear that I did not suspect a transmitting
device but other activities.
But most importantly, the Court of Criminal Appeal misquoted and
misstated the evidence which was given by Counsel Brewer and has based
its misassessment on an error provable by simple investigation.
The evidence referred to is at CCAT 19 and 22 on 23 November 1992.
In fact, the evidence ranged over pages 10-25 and the Court has seized upon
two extracts which served its purpose. It did not dare quote the remainder
of the material. This selective referencing has produced a false impression.
(i) At CCAT 13 Brewer said he thought that on 29 April 1991 it was
revealed in a newspaper the Smith murder had been Taped. This was
incorrect. No mention of a Tape occurred in any media until June 25 1991.
(ii) Brewer had an apprehension something had occurred relevant to
Taping - after the Flowers kidnapping (CCAT 16).
(iii) On CCAT 19 Brewer's obviously uncertain memory about Taping is
clear:
"I have a feeling it was either very close to the beginning of the
trial or just afterwards. I think the early reports of what I had
read about the Smith matter or what had been brought to my attention
about the Smith matter was that he had simply been arrested - sorry
yes, there had been a murder and the man Whitehouse had been arrested.
Now I think the detail of the actual conversation just prior to the
murder being on tape I don't think that was initially published but
it was certainly published around about the same time as the trial.
That is as far as I can take it."
At CCAT 20 Brewer said:
"..but what precise stage the matter about the recordings at Tempe
were made public I don't know."
At CCAT 22, the very page and section relied on by the Court of
Criminal Appeal in dismissing my claims, Brewer linked the "active tap"
which did not rely on a telephone being picked up - with media reports
in the "Telegraph" and "Herald".
The Court of Criminal Appeal did not check newspapers during the
period from the April 20 1991 murder through to the conclusion of
the Trial on May 14 1991 for such references. Had it done so, the
CCA would have found no such references. This fact makes an absolute
mockery of the finding of the Court against my claims.
It was clear Brewer was very confused as to the timing of the
revelation a murder had been Taped by ASIO. He had certainly formed
impressions the Trial was being perverted by security services as it
actually proceeded. But he had no firm knowledge.
Counsel William Brewer will provide an Affidavit to support my
Application for Inquiry. It shall attest to his actual knowledge and as to
certain supposed "tactics" adopted by him for the Trial. I waived my
privilege that this Affidavit could be made.
I submit:
A proper reading of the Brewer evidence and a simple check of media
reports would reveal the error of the CCA's finding that the Defence
was aware of an Intelligence operation at the National Action
headquarters at the time of the Trial.
I had an apprehension of a phone tap and "frequency flooding" which
would be borne out by the production of ASIO's tapes. The CCA would
know that no Trial judge would have permitted Brewer to "fish" on
ASIO/Special Branch to establish whether there had been a "bugging
operation" without some sort of proof. If Brewer knew of the operation,
why did he not raise the matter with the trial judge? If it had been
mentioned in the press, the matter could have gone further. Reasonably,
Brewer did not know at all. And no one was telling us!
If the Court of Criminal Appeal has based part of its Judgment on
selective quotation of erroneous information, a doubt or question as to its
findings on new material at the Appeal is extant.
(f) The New Evidence Of Jane Saleam:
The Court of Criminal Appeal dealt with the evidence of Jane
Saleam in its Judgment (CCAJ 16-22). The uselessness of the Appeal
process to this evidence - and its implications - was demonstrated.
Mrs. Saleam deposed that on April 29 1991, the day the Trial began she
motored from her home in Brighton-Le-Sands to the Mt.Druitt workshop
operated by Mr. Flowers. She had been asked to ascertain if there had
been any interference with Flowers in respect of giving evidence in the
Trial. On the way to Flowers address, she believed she had been
followed; near her destination, she took a wrong turn and subsequently
arrived in a street near Flowers workshop where she observed a parked
vehicle similar to the one she thought had been following her. Jane
Saleam noted its numberplate - RPJ-473. The vehicle sped away quickly and
she chased it. A man was driving. After giving up the pursuit, Mrs. Saleam
proceeded to interview Flowers who told her of the telephone harassment. I informed William Brewer of this situation and he arranged to see Flowers
and take a Proof Of Evidence (April 30 1991). Mrs. Saleam proceeded to
the Roads and Traffic Authority and did a check on the ownership of the
vehicle: it was registered to Susan Collins of Cecil Street, Gordon.
Nothing was done during the Trial period in respect of attending that
address. The Court of Criminal Appeal accepted it was the home of the
Mayor of Ku-ring-gai, Peter Derwent; the CCA accepted Affidavit
material from Derwent disclaiming any knowledge of Susan Collins.
At the Appeal, I led this evidence without the benefit of any other
information (as is now available - see Section Eight) in respect of
the vehicle or its registration. I did this in tandem with the
publicly admitted fact of an ASIO operation at the National Action
premises (which I claimed revealed to ASIO that Mrs. Saleam would try
and see Flowers). I suggested security services perpetrated the
Flowers harassment/kidnapping and operated RPJ 473.
The CCA (CCAJ18) noted Mrs. Saleam said she actually received the instruction to visit Flowers at our flat in Brighton-Le-Sands and not at the Tempe offices which were bugged by ASIO. This discrepency between my
statements in Court and her evidence was noted. However I aver:
While the matter was discussed between us at the Brighton-Le-Sands
address I also discussed this course of action with her on Monday
22 April 1991 at the Tempe premises and did so when it is reasonably
certain the ASIO device was still operating. It matters not what
the CCA may reason; their conclusion is faulted in actuality.
The Court of Criminal Appeal was stuck in the decision of the
Court of December 8 1992 not to allow my so-called "fishing expedition" upon ASIO/Special Branch/DPP. The CCA said:
"We have some difficulty in accepting that it would be reasonable to
conclude upon this material alone that ASIO was responsible for the
harassment and kidnapping of Flowers, or even that it was reasonably
possible that such was the case." (CCAJ 18)
The CCA's statement begs the question as to whether there was further
information held by other State agencies upon which I was not per-
mitted to "fish".
It was certainly open to the Defence to have sought to have recalled
Mrs. Saleam to the stand (she testified on May 8 1991) after the Flowers
kidnapping incident which occurred that afternoon) to give evidence about
the strange vehicle. I note the CCA said that a refusal by the Trial judge
to allow her recall would have been a "serious error" (Judgment p.21).
Again, blame was shifted by the Court onto the conduct of the Defence
counsel. It was not understood that the Defence was thoroughly bamboozled
and confused by the Flowers events and should not be held absolutely
responsible for whether Mrs. Saleam was recalled or not.
The CAA however, in assessing Mrs. Saleam's evidence at the Appeal,
gave a clue about how it would have been assessed even if it had been led
at the Trial. When she said the vehicle which she thought had followed her arrived at Flowers address ahead of her because the driver "probably at
that stage realized where I was going", the Court greeted her conclusion
with the opinion: "There is in our view little cogency in this evidence."
(CCAJ 18) Yet for her evidence to make sense that must have been the
position.
This entire phase of the evidence was of some importance to any Jury
decision. I note that at no point whatsoever did the Court of Criminal
Appeal deal with my attributing to the Crown Prosecutor in Final Address
the malicious words: "who else could have done this except for the accused?"
No jury could have stood up to such logic.
The Prosecutor was in the Court Of Criminal Appeal assisting Senior
Counsel Barr on the Appeal; at no time did Prosecutor Davenport
instruct Barr that these words were not said. The Court of Criminal
Appeal failed to assess the power of the Prosecutor's Address. It must
somehow stand upon the notion I brought this calumny upon myself by
opening up the Flowers' evidence in the first place. The new evidence
from Mrs. Saleam was weighed within the narrow legal concern that the
Defence withheld this evidence and was now seeking a new trial "because
the result may be different" (CCAJ 22).
Even if this was so (and it was not) there is a broad doubt over this
area of the evidence; there is a question as to who was operating
RPJ-473 and what the relationship of this mystery vehicle was to the
Trial. The CCA never addressed that question; it did not dare. The
Crown never Addressed on it; its Submissions argued only that the
evidence was not "cogent" and their strictures were followed by the
CCA in arriving at Judgment. The question over this area of evidence
was alive at the Appeal and with the additional material now avail-
able, the errors at Appeal are now manifest.
General Submission On The Appeal.
The Appeal process failed utterly to address the ASIO operation
and its possible effects on the Defence case; in particular it
could not deal with the Flowers kidnapping.
The Court in November/December 1992 refused to deal with the broad
claims made against ASIO, Special Branch and the Director of Public
Prosecutions and refused to allow a "fishing expedition" to investigate what ASIO did with its Tapes (see Section Eight). A truncated
argument was certainly mounted by Saleam that the knowledge such an
operation existed would have helped the jury arrive at a different
verdict. This point was rejected (and as in subsection f) false
opinion was relied upon to dismiss the argument.
It was also clear other new material brought to the Appeal raised
various doubts or questions as to the Prosecution case. It was
material inadequately addressed in the Appeal process. These
doubts or questions are still alive and can be read in conjunction
with new material provided in Section Eight.
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.