Pardon Me:
The Anatomy Of An Australian Political Trial.
James Saleam. January 27 1999
Section Eight
The ASIO Operation, Special Branch
And The Trial And Appeal Processes.
New Evidence And The Need For
An Inquiry Into Conviction.
The Royal Commission Into The New South Wales Police Service
established the corrupt nature of the Special Branch organization.
In March 1997, with the confession of Superintendent Neville Ireland
to perjury, conspiracy, the illegal destruction of records and theft
from Special Branch funds, the Special Branch was bared. Ireland
named Superintendent Peter Ryan (former Branch Commander for 1991),
Inspector Bruce Mohr and Superintendent Garvey in connection with
sundry offences. Mohr figures heavily in the events referred to below.
Garvey had arrested Frost and "investigated" the Funde offence.
The Royal Commission revealed that - at the time Ireland was operating
the Eddie Funde case against Saleam and Smith - he was systematically
stealing from Special Branch funds in respect of an "informant"
("Catherine"). This relationship was terminated in August/September
1990 long after the essential preparation for the Funde prosecution had
been completed.
Although I have no proof other than reasonable inference, it is likely
the Director of Public Prosecutions was fully briefed in 1990 (with
Ireland's version) on the "Catherine"/Ireland relationship. Certainly, as
has been noted, a meeting at the DPP office had taken place on August 17
1990 with Ireland, "Catherine" and DPP Solicitor Richard Herps to map out
a new prosecution of National Action members.
It is reasonable to assume there was further correspondence between
Special Branch and DPP over this amazing relationship. The DPP had
also acquired an apprehension that the Defence would (after "Catherine's"
"defection") thenceforth be briefed with details of the relationship and
was consequently possessed of a powerful weapon to disintegrate the
Prosecution case. I aver this was the situation and "Catherine" was
debriefed by me and Counsel William Brewer .
This revised situation was obviously to the concern of Special Branch.
The trial which had been set for October 1990 was adjourned, ostensibly
because of the imminent visit to Australia of African National Congress
leader, Nelson Mandela. In October 1990, I addressed an Open Letter
to hundreds of New South Wales Police officers concerning the illegal
conduct of Neville Ireland; the distribution of the letter was reported
in the Sydney Morning Herald. It had become clear to Special Branch
that "Catherine" had "changed sides" since the content of the Open
Letter revealed that a letter to Police of May 1989 had never been
mailed out. Only they knew of this. If "Catherine's" evasive conduct
since August 1990 had not already suggested this situation, the Open
Letter would have proved to Ireland's satisfaction the revised
situation.
(i) The Attitude Of ASIO.
The Australian Security Intelligence Organization Report To Parliament
1989-90 dated 12 November 1990 was revealing of attitude:
"Domestic politically motivated violence has never been a major problem
for Australia, and remained at a low level overall in 1989-90.
However, there was an upsurge in violence from the racist right which
was beyond the pattern of previous racist harassment - evidenced by
more than 30 arrests of members of right-wing groups. Given this
escalation, ASIO will allocate further resources to monitor the activities and intentions of these groups in the year ahead." (p.2)
The term politically motivated violence is often used (inappropriately)
by ASIO as a synonym for "terrorism". The arrests referred to reasonably implied (among other things) the Saleam, Smith, Frost, White
charges. ASIO then went further:
"The only discernable domestic threat of politically motivated violence
comes from the racist right. This has suffered serious setbacks in the
past year with the arrest of a large number of leading members of the
two most dangerous groups. Their capacity to recover from these
setbacks is yet to be shown. However, they appear to have established
themselves as fairly durable political entities and will probably
persist for some time as sources of communal and politically motivated violence." (p.60)
The two organizations referred to were (obviously) Australian National
Action and Jack Van Tongeren's Australian Nationalists Movement. At the
time the Report was issued, Van Tongeren and some of his followers had
been in custody for 15 months, and had just received lengthy prison
sentences.
This left Australian National Action (ANA) still operative;
characterized as a source of politically motivated violence and dangerous, it was the lone target for an intrusive operation. This Report
appeared just four days after ASIO applied for a Warrant to tap the
telephone 559-2070 (the office phone number of ANA in Sydney).
It is unknown what information the Special Branch had provided to ASIO on
the state of the prosecution against Saleam and Smith. It is my assessment
ASIO was briefed on the situation induced by Catherine "defection" to the Defence. It would be very likely ASIO was aware of some of the foolish
conduct engaged in by Ireland and had/has files upon the subject. I would strongly aver ASIO had a keen interest to ensure the success of the
prosecution.
In its Report To Parliament 1990-91 ASIO wrote:
"Last year's report commented on the upsurge of violence from racist
right groups in Australia, reflected in a large number of arrests and
prosecutions. During 1990-91 ASIO achieved considerable operational
success against violent racist right groups." (p.37)
"Investigations under the Politically Motivated Violence Program predominated ASIO's operational and analytical work in 1990-91 ... and
the arrests of members of racist right organizations, concluding
intensive investigations conducted jointly with police." (pp.40-41)
The notion of "operational success" and "intensive investigations"
carried out with Police almost certainly involved the Saleam/Smith
case and a close union with Special Branch to obtain success.
In the light of what follows, there is a doubt or question over entire
phases of the evidence presented against me at Trial. It may be ASIO
intervened to bail out Special Branch or conduct its own activities
which would achieve the same result.
(ii) The ASIO Warrants. When Installed. Other Details.
It is a matter of public record arising from R v Perry John Whitehouse
(Supreme Court Criminal Registry File 70114/91) that on November
8 1990, a Warrant (WT116/90) was issued by the Commonwealth Attorney-
General to ASIO to tap the National Action telephone. The Warrant
would become valid after November 10 1990. It should be accepted that
taping of telephone conversations began shortly thereafter.
It was the considered opinion of myself and other associates that the
telephone line was "tapped". However, despite the reticent nature of
our conversation, it would have been inevitable some conversation was
recorded which exposed some aspect of the preparation of the Defence
for the trial. Some conversation was allowed to be recorded.
It was also a belief of the ANA members that a technique called
"frequency flooding" was in use (as above) which allowed ASIO to record
all conversation in the room without the handset being picked up. In
January 1991, Wayne Smith paid a person a sum of money to "de-bug"
the premises. While no transmitting device (as was later installed)
was detected, the phone was judged "alive". This confirmed for us
our suspicions.
It had usually been policy in any case to pull the telephone cord from
the wall while various conversations were conducted. The later ASIO
operation would have recorded us doing that very thing supposedly
to "protect" our conversation.
On January 10 1991 a Warrant (WL/1/91) was obtained from the Commonwealth Attorney General to install a transmitting device inside the
premises at 725 Princes Highway Tempe, the offices of ANA. This warrant
was to become effective after January 25 1991. On a date I believe to
be around February 15, this device was installed by a man dressed as
a technician for Telecom. I let the ASIO operative into the premises
and whilst distracted, the device was installed in a cupboard in the
kitchen downstairs area - the same area where Frost/White supposedly
received their orders from myself and Smith. I understand a room was
rented at the Tempe Hotel about 40 metres away and with the support
of the Hotel owners, security was maintained.
Contrary to certain claims made by the Court of Criminal Appeal, it was
not known that the building was bugged. The actual ASIO taped material
would support my assertion . On occasions, while particular
conversations had to be engaged in, I went outside the premises,
locking a rear door; there was a fear of bugging but no knowledge. Our
responses were inconsistent. On other occasions, we would merely pull
the telephone plug from the wall. These issues were all discussed.
On April 20 1991 at about 5p.m. Perry Whitehouse, after an argument
with Wayne Smith, produced a rifle and shot him. Smith died on the
premises within a metre of the recording device. The lead up to the
murder, the killing and its aftermath, were recorded by ASIO. It is
understood that on the following day, ASIO informed Newtown Detectives
who had carriage of the murder matter, that material might exist from
electronic surveillance. Critical matter relevant to the diffusion of
this detail will be dealt with below; suffice to say here, ASIO's
equipment would probably still have been transmitting on April 21 1991
at about 3 p.m. when I - in company with Shane Rosier - obtained access
to the premises from Police. I would reason ASIO would not have sought
to remove that transmitter in case further information was acquired
which might theoretically have indicated Smith died as the result of a
conspiracy. It would be my hypothesis that ASIO did not remove the
device until after I was found guilty of the Funde charges on May 14
1991.
(iii) What Information ASIO Collected. (With Circumstantial And Other
Evidence Which Suggests Information Was Provided To Special
Branch)
(a) General
The ASIO operation would have been a bonanza of political and legal
preparation information. At various times discussions took place
which referred not only to the (legitimate) political activities
of Australian National Action but to other political groups on the
Right and various personalities. It is the Funde case material
which is of concern here.
It may well be that the situation which developed was unique, and at
each step it must have been apparent to ASIO Intelligence analysts how
they were obtaining information crucial to the operation of a criminal
trial of great importance to the "Politically Motivated Violence
Program". ASIO has admitted this to the Inspector General of
Intelligence and Security.
A chronology of the recorded discussions is critical to this
Application although it should be noted there were other conversations
about issues which could well have reflected upon the Trial.
(b) Chronology.
I state that what follows here should be verifiable from ASIO's
records.
Around February 25 I instructed Whitehouse in the kitchen area of
the building to initiate a search for "Brian Clarke" who testified at
the trial for the Prosecution as David Morley. Whitehouse went through
an elaborate array of phone calls until, around March 8 or 9, he spoke
to Morley who was then serving as a Sheriff in Deniliquin. All of
thee calls were made on 559-2070.
From memory Whitehouse said using this line was advisable since it was
tapped, as it would create an overload for Special Branch in the lead
up to the trial. Faulty logic.
Morley was obviously meant as a surprise Crown Witness. His Statement
had been taken by Ireland at the Sydney Police Centre in September
1990. It had still not been served on the Defence. In that document,
Morley stated that members of National Action had forced him to hand over
the address of crime victim Funde back in January 1989.
Whitehouse addressed various items of mail to Morley through his
parents and other locations; this correspondence suggested we wished
to discuss the case with him. The Defence issued a subpoena for Morley
and had it served. Almost immediately, Morley's Statement was served on
the Defence. Consternation was caused by Morley's reference in that Statement
to the Funde address being forcefully taken. This was overcome immediately
by a Defence "find" which ASIO learned about.
The Morley visit on January 9 1989 had been recorded. The tape had
disappeared. I understand (and Ireland's records could confirm) that
"Catherine" told him the tape was missing. In March 1991, the tape was
located and brought into the kitchen area where discussion took place.
An arrangement was made to re-record the tape and a person called Jack
W arrived with such recording equipment as allowed the small
hand-size recorder's tape to be transferred to cassette. As this procedure was done, ASIO recorded the tape!! ASIO then learned the Funde
address details had never been extracted by force; this subject and
Ireland's fabrication was discussed. "Catherine" was mentioned as
giving Ireland the false information about the tape being lost. Smith
was present along with Rosier and Whitehouse. It was said this coup
would knock out one small part of the case.
I argue:
At the very least ASIO learned Ireland's case contained a flaw. If
ASIO told Ireland it knew Saleam/Smith had the Morley tape, then
Ireland would officially "know" Morley's Statement was false. If he did
not tell the Crown Prosecutor, and he certainly did not tell the
Defence, Ireland allowed a witness to testify to falsity. This would
possibly open Ireland to a charge of "attempt to pervert the course of
justice". Whatever ASIO did with its knowledge would be indicative
of its method.
Around the time Morley was located, there was a further discussion
between Saleam and Whitehouse regarding Kerry Flowers, Jason Frost's
former girlfriend. Again this conversation was in the "bugged" area.
About March 11 in the early evening, Saleam (and from memory
Whitehouse) left the building in company to attend Kerry Flowers' last
known address where several "leads" were obtained. There was some
discussion of this at the building upon return. Whitehouse affected
several enquiries and around March 18 located a phone number for
Kerry Flowers. It may be to this point ASIO kept its knowledge
to itself as there was no reason to believe the line of inquiry
was rewarding for the Defence.
On March 20 or 21, Whitehouse phoned the number from the tapped line
and spoke to Carlene Flowers, wife of the later Defence witness Brad
Flowers (who was Kerry Flowers' brother). There was some discussion
relevant to the call before it was made and conversation after it.
Carlene Flowers surprisingly announced:
"What Jason told me, right, was that the copper said to him 'If you
give evidence against that Wayne Smith, if you admit that they put
you up to it, and everything, then you'll get a light sentence;
we'll make sure it goes light for you.'"
On Friday March 22, I spoke with Carlene Flowers on the bugged line.
She repeated to me the same story. She told me "my husband Brad" knew
more about it. An arrangement was made for me to speak with Brad
Flowers that night.
I say:
At this point ASIO became aware a witness was possibly available to the
Defence to challenge the Prosecution case. ASIO was always aware Mrs.
Flowers had raised the issue of Frost's corrupt arrangement with Police
at the very first contact with the Defence. This knowledge never
revealed implies (as below) ASIO condoned by default the assorted false
constructions of the Prosecution in discrediting Flowers evidence as
fabrication. If it was fabricated, then Mrs. Flowers also fabricated
its essential core aspect.
On the evening of March 22, I spoke with Brad Flowers from my home
telephone line and we made an arrangement to meet at a Hotel in Rooty
Hill on Monday 25 March. On that morning I attended the Tempe building
with Jane Saleam and conferred there with Whitehouse and Rosier.
The conversation ASIO would have recorded was cyptic. I left those
premises with Jane Saleam and met with Flowers between noon and 4 p.m.
Around 5 p.m. I returned to the Tempe premises. I recall saying some
words to Whitehouse about Frost doing deals, the gun he used and
dynamite evidence. At no point could ASIO ever have any material
suggesting the Defence was responsible for Flowers' later harassments.
ASIO would record our stated belief that he was a surprise; we code-
named him in case telephone references needed to be made (ie."The
Valhalla Sequence"). I believe it was also at that time I told
Whitehouse that Special Branch had "recently" interviewed Kerry
Flowers. Some Special Branch record of this interview may exist. If
it does, there exists a clear suggestion ASIO did inform Special Branch
of the Defence's interest in her.
I submit:
With ASIO's receipt of information on Flowers availability to the
Defence, it became aware the Prosecution case could be disintegrated.
On March 26 I attended the District Court at Parramatta on a return of
subpoena hearing in another case brought against me by Ireland. At that
time I made allegations in the Court that Ireland had engaged in
sexual assualts against "Catherine" and some of the material sought-for
would go towards establishing evidence. When I returned to the building
ASIO recorded my words to Whitehouse. I said the allegation while true
was made for effect. I observed the faces of the Police and of
Ireland. Smith had been with me at the time. I discussed with
Whitehouse some tactical considerations relevant to the airing of these
allegations. I recall specifically mentioning the likelihood Ireland
would produce the "verbal" about which I had been warned by
"Catherine", the material about Smith and I being together at the
Tempe premises on the night of the Funde crime. I said to Whitehouse
it would be unlikely he would advance it now. It might look like a
payback for the sexual assualt allegation.
I submit:
ASIO could only have anticipated that Ireland's case was under attack
by robust tactics. Further, if as I believe Ireland was told of this
conversation with Whitehouse, therein lay part the logic for advancing
the "verbal". It was spite, revenge. Ireland's verbal would also
assist in winning the conviction and would have been an act of self-
protection by an officer caught by indiscretion.
On April 6, by arrangement, I served a subpoena on Brad Flowers. He
had requested it.
From discussions between Flowers and Counsel William Brewer, I
apprehend it was in the following week that the harassment of the
Flowers family began. The telephone calls in my name/"National Action"
were frequent. Flowers also suggested that around April 11, his wife
took a call from Neville Ireland who was ostensibly looking for Kerry
Flowers and that this call was received within minutes of an
harassment call. Carlene Flowers told Ireland of these calls.
Given the hypothesis advanced here, it was likely Ireland was setting
the stage for the discrediting of Flowers evidence and some notation
would exist in Special Branch files of this "report".
The "fortuitous" call by Ireland would carry luck too far. However,
if any record of Special Branch "officially" having knowledge of
threats before the Trial exists, it would follow some action would or
should have been taken. If Ireland reported this to ASIO a record
exists. Ireland's proper course of action - if it is allowed for the
purpose of the argument that it was not Special Branch which was
responsible - would have been to obtain a warrant to place a
monitor upon Flowers telephone with some electronic tracer device.
The threats could have been traced and recorded and the offenders
apprehended. It is however certain this was not done. It is averred
nothing was done (if anything was done clear clues could possibly exist
as to the identities of the Flowers kidnappers). Since the favoured
view is that nothing was done, a very clear clue to the identity of
the harassers is provided - Special Branch.
Remiss conduct would be inexplicable. If Saleam/Smith could have been
shown to have been responsible for a campaign aimed at their own
witness, a powerful weapon would have existed for the Prosecution.
Ireland's role would have been to obtain this evidence. Yet it is
predicted - as with the failure to properly investigate the "threat
in the police cells" - Ireland let a supposed opportunity slip away.
I submit:
It must be determined what records exist at Special Branch concerning
its official knowledge of the "threats" prior to the trial. It needs to
be determined that nothing was done in respect of this knowledge.
A powerful argument would thence exist Special Branch's behaviour was
corrupt.
On April 12 Barrister William Brewer attended the Tempe premises for
a "view". In a Conference with Mr. Brewer on April 18 1997, he produced
his diary (a certified copy of the relevant page will be tendered on this
Application) which set out the April 12 date. In all previous argument
with the Court of Criminal Appeal I had thought it was on either April
8 or 15 that this "view" had taken place. ASIO's reply to my
argument and the CCA's Order to Produce on December 8 1992 has been
noted. At no point did ASIO suggest the "view" had occurred on another
date. At no time did the Inspector General of Intelligence and Security
refer to this (if ASIO records still exist) in his correspondence with
me.
On that day, much of the Defence case was discussed. Wayne Smith,
Rosier, Whitehouse and myself were present. The likelihood of Ireland
"verballing" in the essential terms he and Poniris did was discussed
and the full and truthful account of the Ireland/Poniris conversation
of January 30 1989 was discussed. It was peculiar the Ireland/Poniris
verbal so minutely contrasted with the Defence version.
I submit:
If an ASIO record of this legal conference existed then professional
legal privilege was voided. ASIO has denied through the Inspector
General of Intelligence and Security sharing this information with
Special Branch. It may well be this claim was not true. Or that
previous information provided allowed the verbal to be fabricated in
the manner it was.
On April 20 in the afternoon at about 3 p.m. I received a call from
my Solicitor, Brenda Duchen. She told me Brad Flowers had failed to
keep an appointment and that a call to his home had met with abuse from
his wife. At about 4 p.m. I phoned Smith who was at the Tempe premises
and I said words like: "something has happened. I think Special Branch
is playing games. I'll tell you tonight."
Smith was murdered at 5 p.m. It was not until April 21 at about 2.45
p.m. that I and Rosier obtained access to the premises. There was
possibly some conversation which indicated a fear the building
could have just been bugged with some conversation thence transferred
to outside the premises.
I submit:
This conversation would have implied strongly the clear lack of
knowledge the building was "bugged".
On April 22 in the evening there was a meeting of the National
Action Committee at the building. Some six persons were in attend-
ance. I recall it being discussed that the premises could have been
bugged by the Police to collect evidence. I said my case was "ruined".
I said Special Branch may have tampered with a surprise witness. I
recall I said I would send Jane Saleam to speak with him the
following Monday. The CCA (CCAJ18) suggested Jane Saleam deposed I gave
that instruction at our home not at the building. I say again whatever
instruction I gave at our home I also mentioned it at the building.
This must be so in the context of what follows.
I submit to you:
Once ASIO had processed this information, it was aware an attempt would
be made to solicit Flowers assistance. ASIO became aware how I held my
legal position. The ASIO material reasonably suggests the Defence was
still unaware of the bugging operation.
On April 23 Newtown Detectives Ashwood and Finch attended Special
Branch and obtained a copy of the Whitehouse murder tape. Under a Freedom
of Information application, Detective Ashwood has confirmed having the tape
but cannot remember when he passed the tape to the DPP (and therefore
"advised" them officially of its existence). The DPP has no record of
receiving it, nor does that office know when it was received.
This nonsense is strongly suggestive that Special Branch wished to
conceal this information from the DPP. It is suggestive that the DPP is
either incompetent or untruthful.
I have engaged in a lengthy correspondence with the DPP, the Crown
Prosecutor and the Attorney General on the issue of the state of the
knowledge of the DPP about the surveillance operation at the time of
the trial. At first the DPP said that they knew of the security op. from a clipping filed by us with an Affidavit on April 29 1991 when we applied to adjourn the Trial. When I said there was no such newspaper article and
produced a copy of the actual Affidavit, they changed tack. Lie One.
Incredibly, the DPP Mr. Cowdery, has settled upon the position that the
Crown Prosecutor may have known about the operation because she had
read of it in a newspaper. Lie Two. There was no mention of the
surveillance operation in any paper during the trial period.
I will produce this entire folio of misleading obfuscation to the Inquiry.
It is rather obvious that Prosecutor Davenport relied on Brewer's erroneous evidence at the Court of Criminal Appeal about reading about it in a
newspaper. (See Section 7). Repeated attempts to her to give a clear answer
to the questions: "did you know?" or "did you know because you read it
in a newspaper?" (in which case confabulation has taken the place of
true memory) have been met by evasion. This is not appropriate conduct from
a Prosecutor or the Director Of Public Prosecutions.
I have an ernest apprehension of irregularity. However, a complaint
made to the Judicial Commission against Justice Blanche (in 1991 he
was the Director of Public Prosecutions) for concealing this
information from the Defence, has produced denial of any knowledge on his
part. It may well be the DPP was not told. This raises a question developed elsewhere of Ireland's lack of integrity and his conspiratorial agenda
directed at Saleam/National Action.
I conclude:
There is still some doubt over the DPP/Crown Prosecutor's knowledge
of the ASIO operation. There is shadow over the history of the murder
tape (which implies its existence was to be concealed from the Defence).
There are traditional police "bad memories" and lack of records from both
the Police and the DPP. Did the Prosecution want to stop the trial issues
from broadening? Such that the Jury might not begin to wonder if the
evidence had become "contaminated" by the security operation?
One of the most fascinating loose ends of the Intelligence operation
was the vehicle observed by Jane Saleam on 29 April 1991 in the
vicinity of Flowers' Mt.Druitt vehicle repair workshop. The CCA
commented at length on this evidence. The mystery points clearly to
some operation either ASIO, Special Branch or both, circulating
about Flowers' person.
Jane Saleam motored from our residence at Brighton Le Sands (29 April)
to Mt. Druitt and formed an impression a Toyota car had followed
her. When she arrived in the vicinity of Flowers workshop she took a
wrong turn and came down another street and sighted a vehicle which
she took to have been the suspect one. She noted its numberplate:
RPJ 473. The vehicle sped off and after a chase she returned to see
Flowers.
William Brewer testified (CCAT November 23 1992) that he saw a man
enter Court with a message for Ireland that day; he thought he was a
Police officer. I say my Counsel did not recall the person was in fact
the officer who later gave evidence: Charles Poniris. The time was
12.02 p.m. I had made contemporaneous notes of what was said/occurred
in Court. It was the case the "chase" in Mt.Druitt would have been
concluded a quarter hour before. It would be my suggestion the report
had come to Poniris who logically knows the driver's name.
A search of vehicle records was carried out at the Zetland Motor
Registry by me on the afternoon of 30 April and I ascertained the
vehicle was registered to a "Susan Collins" of 24 Cecil Street Gordon.
Nothing further was done with the evidence at the trial.
Subsequent to conviction, my agents attended this address and, as was
accepted by the Court of Criminal Appeal, no person by the name of
Susan Collins resided at the address, which had been occupied for years
by Peter Derwent - the Mayor of Ku-ring-gai.
The CCA had dubbed Jane Saleam's impression of being followed as
"not cogent" evidence. However, the vehicle RPJ-473 was nothing conjured by pipedream. If she had invented seeing it, it was a remakable
concoction. Through enquiries carried out by me in person whilst
still in custody (1994-5) and after my release from prison, the
peculiar character of this vehicle-registration was enhanced:
- no registration papers could be located at the Road and Traffic
Authority other than a microfiche printout.
- the insurance code provided with the registration was false. No
such company code existed.
- no person by the name of Susan Collins possessed a New South Wales
Drivers License in that period.
- no person by the name Susan Collins appeared on the electoral roll.
- a post office box address at P.O. Box 1205 Chatswood appeared on
the vehicle registration. I made enquiries with the Post Office.
A company name "CRR" used the box, but no such listing existed in
this state. The original rental form (June 1989) provided no details
about the "company", but had a cryptic reference "refer to postal manager".
- Toyota Australia advised that both the engine number and chassis
number of the vehicle did not correspond to Toyota records.
- The plates were surrendered in 1992. The Registration was taken out
in the period after ASIO acquired its warrant for a transmitting
device.
Whomsoever falsely registered RPJ 473 clearly went to inordinate
lengths of concealment. No ordinary person would do this.
I submit:
There is fair reason to say RPJ 473 was a falsely registered vehicle
operated by either ASIO or the Special Branch. Whomsoever positioned it
outside Flowers workshop in the circumstances stated could only have
done so because there was knowledge of a special sort to cause that
to be so. Given Poniris entered Court when he did, and granted I did
refer to Jane Saleam's planned visit to Flowers while I was adjacent to
the transmitting device on April 22, I suggest ASIO's Intelligence
must have been shared with Special Branch. It would follow this
surveillance vehicle was utilized to play some role in monitoring
the Defence's relationship with Flowers.
On April 30 William Brewer took a proof of evidence from Flowers at his
Parramatta Chambers. The threats to Flowers did not stop but continued
throughout the trial period. There will be no material from ASIO which
could even remotely establish any link between the Defence and these
threats.
On Friday May 3 I spoke by telephone to Rosier and a Mr. John Klumpe
who was a taxi driver known to me. I had arranged for Klumpe to drive
the distances involved in the Frost version of the crime. He was to
drive from Tempe to Croydon, to Balmain and return to Croydon waiting
for those periods of time described by Frost in his evidence. It
was later put to Klumpe in Cross Examination that he was in fact to
drive only a nominated route (even though Klumpe ackowledged it as the
shortest one with a minor modification based on traffic signs TT374-375).
The Prosecutor was suggesting something improper in the arrangements.
ASIO's telephone intercept would prove a very different case. There was
extensive discussion on the route, how it was determined and related
to Frost's evidence. Klumpe made some points. After driving the route,
there was further telephone conversation.
Such new material, while not proving the Frost evidence false, would
show the manner in which it was discredited.
Exactly how much material became available on the Defence cannot be
accurately quantified. There were undoubtedly conversations between
various persons not referred to here. We do not know exactly what ASIO
told Special Branch nor how Special Branch was able to build upon
this Intelligence from its own sources.
(iv) The Corruption Of The Legal Processes Of Trial And Appeal Through
False Conduct/Incomplete Knowledge.
(a) Neville Ireland's Special Knowledge: Relevance.
As the above mentioned Report of the Inspector General of Intelligence
and Security revealed, the Special Branch received Intelligence related
to conversations between Saleam and one of the Defence legal advisers
on two separate occasions. While we do not know the nature of ASIO's
report to Special Branch, it could be fairly assumed the Branch
would have understood the source of ASIO's information. Similarly,
although the Report of the Inspector General does not state it,
we can only fairly conclude, other information derived from the
operation was passed over. Special Branch - if it was not actually
formally advised of the existence of transmitting and telephone
intercept devices - would have understood what was occurring. Given
the overall circumstances I aver it was Ireland and Mohr who were
in receipt of the information.
I suggest this because Ireland was in charge of the investigation into
ANA and myself and Mohr figured in the Flowers matters and was trusted
by Ireland accordingly. Mohr occupied a certain operational role within
Special Branch and would have been suitably placed to assess ASIO
intelligence.
It reasonably follows both ASIO and Special Branch have records of what
information passed to the Branch. The Inspector General strongly
implied this in being able to state with certainty that the contents
of two phone conversations had been passed over. Despite the reputedly
ramshackle nature of Special Branch records, and the possible illegal
destruction of records by Ireland (something referred to by Ireland at
the Police Royal Commission), it is reasonable to assume some material
still exists.
It is also a matter of record arising from both R v Whitehouse
and R v Shane W. Rosier (District Court Criminal Registry File No.
92/11/0117) that on April 23 1991 Newtown Detectives Michael
Ashwood and Ian Finch attended Special Branch headquarters and received
a copy of the murder tape. I consider it relevant that the transfer
was conducted at Special Branch as it implies forcefully the interest
Special Branch had in every activity of ANA and its members. In the Rosier
case, Ashwood thought Ireland was present at the transfer. It was logical.
Ashwood remembered Mohr in attendance.
It may therefore be taken as certain that during the trial period
Ireland was aware ASIO had conducted an intrusive operation
against Saleam. This took on relevance and Ireland's remiss behaviour
would open him to a charge of "attempt to pervert the course of
justice". (See below)
This Application relies on the sequence of discussion amongst Brewer
Crown Prosecutor Davenport and Judge Ducker (TT438-440) on May 9
1991 concerning the evidence of Flowers and his kidnapping.
At no time did Ireland inform the Defence of the existence of the ASIO operation. Of course, it might be argued that the honest officer Ireland not being responsible for any harassment or kidnapping offences, and not
believing ASIO could morally have been involved, and not knowing enough to suggest ASIO even had any relevant information, was under no obligation to
have said anything. However, the problem lay in the peculiar nature of the
harassment/kidnapping and the clear line of cross-examination of the
Prosecutor which suggested Flowers had invented the story or had
been kidnapped by Saleam-connected forces. Ireland reasonably desired
nothing complicate the Crown case; Ireland would have understood my
character to the extent where - had I known of the ASIO operation -
I would have raised the issue at once. At the very least, Ireland
could only have anticipated a delay in the case (and as noted below
Ireland was well aware knowledge of the ASIO operation would come out
once the murderer Whitehouse appeared in Court); Ireland therefore
resorted to silence.
Ireland was present in Court when Judge Ducker told the Jury:
"I am about to make a comment to you and you are at liberty to object
to this comment if you do not agree with it but you might think any
person who is present in this court-room and heard the cross-
examination of Frost would clearly have known what evidence this
witness is going to give or likely to give." (TT407)
This prejudicial muck would be undermined if Ireland could have been
shown to have contacted Carlene Flowers on April 11 1991, and been told of
the threats. The field of suspects would contract to two sets. And if
Ireland knew of the ASIO operation there would be other questions. The misleading nature of this judicial intervention could not be undone at the
Trial and was not undone at the Appeal and was obviously founded upon a
falsity.
Ireland was also present in Court when the Crown Prosecutor in Final
Address to the Jury said in relation to the Flowers harassment/
kidnapping evidence: "who else could have done this except for the
accused?" Given the limits imposed above upon Irelands's logic, again
Ireland's conduct contained duplicity. Clearly, it was possible at the
very least ASIO might have been able to assist the Court in resolving
the issue whether for or against the Defence.
I submit:
Ireland deceived us all when the Crown Prosecutor who argued with the Court,
in Cross Examination and in Final Address, various positions which were
false in fact. Ireland deceived the Defence in not providing information which could have assisted it. Ireland left a defence witness in
a position of terror which could have been molified by advancing
the ASIO information.
The absence of the fact of an ASIO operation from the Trial was
deliberate contrivance. Material exists to charge Ireland with
"attempt to pervert the course of justice."
Ireland's remiss conduct casts a shadow over the logic of the Court
of Criminal Appeal. Since it is now obvious Ireland had the knowledge
of the surveillance operation, the Court of Criminal Appeal was hoaxed
when it said:
"At the end of the cross-examination (or more strictly when there was
only one issue left to be put to the witness) counsel for the
appellant submitted to the judge (in the absence of the jury) that,
as a suggestion had clearly been put that the kidnapping story had
been made up, he intended to establish by independent evidence
some of the matters raised by Flowers. There followed a discussion
concerning the admissibility of such evidence. It was submitted that
the evidence of Flowers was capable of being interpreted that it
was the police who were responsible for the kidnapping. The judge
ruled there was no evidence to support such an interpretation, that
the evidence went only to the witness' credit and that no other
evidence was admissible. He later informed the jury of that ruling,
explaining that he did not think an adjournment of the proceedings was
justified in the hope some further evidence might be obtained...."
(CCAJ 8-9)
The fact was of course, there was such evidence, not simply the not-yet
revealed fact of an ASIO operation (which was held by the CCA as
insufficient to disturb the verdicts CCAJ 21, 41), but the collateral
conduct of Ireland/Special Branch to deny such evidence from the Court
which may have allowed an adjournment to be granted. This duplicitous
conduct is new and additional evidence to the position I argued
at the Court of Criminal Appeal.
The standard tribunals of justice are inappropriate forums for the
resolution of issues of this type.
I say to you:
The subtle nature of Intelligence-driven tampering with the judicial
process cannot be disentangled by the Appeal process. An entirely
different mechanism is called for which can only be Judicial investig-
ation.
(b) ASIO Also Deceived The Court Of Criminal Appeal
Various Grounds of Appeal were drafted which related to the conduct of
ASIO, Special Branch and the Director of Public Prosecutions. As the
Court of Criminal Appeal noted (CCAJ40) no argument could be made
on these Grounds since the Court (differently constituted) on December
8 1992 ruled against issuing Orders upon these instrumentalities. The
Court said:
"The totality of the material which has been put before the Court today
indicates that there is no material capable of being produced by ASIO
which would in any way assist the appellant in the arguments which he
wishes to put before this Court and certainly nothing has been put
before the Court by the Appellant to justify any further order being
addressed to the Director General of ASIO in furtherance of the
matters... That being so, there is no basis upon which this Court
could direct the orders sought to the New South Wales Commissioner of
Police or to the Director of Public Prosecutions because it could not
be suggested on the material before this Court that there had been
any information communicated by officers of ASIO either to the New
South Wales Commissioner of Police or to the Director of Public
Prosecutions which would have had any bearing on the way the subject
trial was conducted by the learned Crown Prosecutor.."
(Judgment, CCA, Dec. 8 1992 pp.2-3.)
It is clear this was wrong in fact. ASIO failed to produce any material
as had been sought by the Court's Order of November 23 1992.
When I appeared before the CCA on November 23 1992, I sought wide
Orders upon ASIO/Special Branch/DPP. They were inexpertly drafted and
regardless of the "fishing expedition" rules of the CCA, I sought to
uncover what ASIO/Special Branch may have done with Intelligence
from the operation. I argued with the Court that on either April 8
or 15 1991, my Counsel William Brewer had attended the premises
and been recorded by ASIO. The Court issued a limited Order upon
the Director General of Security to clarify this situation; I did
not seek this Order; ASIO answered on December 8 that ASIO did not
record on either of those days. A small piece of telephone "listeners
notes" were available for April 8 and they were produced. This mat-
erial could not advance the Appeal. Why ASIO had not recorded at
certain times was never explained.
However, it is now clear ASIO did have other material. At no point
did ASIO inform the Court it had recorded conversation on other
occasions between me and one of my legal representatives (see
correspondence of the Inspector General Of Intelligence and Security March 12 1997 and April 9 1997). This lie by omission therefore
produced a situation where a Judgment of the Court of Criminal
Appeal was false in fact and otherwise - flawed. At no time did ASIO
indicate the Legal Conference referred to took place on April 12.
I state:
ASIO's conduct in not revealing information was indicative of its
fundamental attitude towards me which may taint every aspect
of the use of the Intelligence material.
ASIO's conduct distorted the process of the Appeal; it denied
me, through disingenuous conduct, the opportunity to argue an
Appeal where fresh evidence was decisive.
(c) The Flowers Kidnapping: Poison In The Trial. Unresolved On The
Appeal. New Evidence
The Flowers kidnapping evidence was a remarkable thing in the midst of
a criminal trial. Correspondence with the Ombudsman (produced)
brought no official response. My allegation of Special Branch
complicity was dismissed as "unsubstantiated allegations". An allegation more serious in the administration of justice could hardly be
brought: a Defence witness threatened, kidnapped by police who were
informed of his evidence by ASIO Intelligence, who had him under
surveillance from a falsely registered vehicle, who were prepared
to "verbal" the witness (as below) and who may have stolen a
vehicle (as below) to carry out the kidnapping. The evidence of the
witness was critical evidence destroyed (by the CCA's finding) by the
giving of the kidnapping evidence. A Special Branch motive existed.
It is averred that the kidnapping of Bradley Flowers casts a doubt
or question over the convictions and hence the resolution of the
kidnapping issue should be attempted. If it can be shown Special Branch
probably committed the offence, the Trial/Appeal processes would be
tainted in such a manner that the convictions should be regarded as
unsafe.
(i) Suspects.
There were four possible solutions to the Flowers kidnapping.
Firstly, it never occurred. This was one line clearly hinted at by the
Crown Prosecutor although not the only one. It was however, a
remarkable tale for an ordinary person such as Bradley Flowers to have
invented. It would imply Flowers also lied about being harassed.
Secondly, it was carried out by Saleam/National Action. That would
imply strongly the Defence harassed Flowers by telephone demanding
his compliance with the giving of evidence; that Jane Saleam gained
that support and a Proof of Evidence was taken; that unsatisfied
with this, the kidnapping was carried out as a final act of subornation.
It would be difficult to show why it was necessary to harass the
witness in the first place. As stated here, there can be no evidence in
existence that members of National Action carried out this campaign.
Thirdly, that it was carried out by Special Branch. This Application
argues this case.
Fourthly, that an unknown force interfered in the Trial for some
indefinable purpose. While Judge Ducker raised that possibility, it
does not fit well with the harassment which began soon after contact
between Flowers and the Defence. This intervention cannot be
given motive. It is suggested no material held by ASIO or Special
Branch would suggest it.
However, it is fairly clear only two sets of suspects will really meet
all criteria for involvement in the enterprise. Either it came about
through the Defence or through ASIO/Special Branch.
(ii) Understanding The Logic
It is my hypothesis that Special Branch was either told by ASIO,
or otherwise deduced from other ASIO Intelligence, the likely availability of Flowers to the Defence.
The telephone harassment was designed to alienate Flowers from the
Defence; hence he was told the calls came from "National Action".
Flowers' wife received similar calls in order to create friction
with Flowers over his involvement in the case. Ireland's probable
contact with Carlene Flowers established the campaign was proceeding
well and disabused her of any concern at Police involvement. As
noted above, Ireland's failure to arrange monitoring of the Flowers'
telephone line would suggest his complicity.
I would suggest the Smith murder would naturally have led Special
Branch to consider Trial victory fairly certain. Nonetheless, evidence
of the existence of the surveillance operation was concealed from
the Prosecution and the Court.
A certain logic appears to operate after the Smith murder. The "verbal"
was created. The Prosecution insisted its witnesses were in fear and
the trial should proceed. Despite judicial warnings to exclude the
murder from the jury's attention, Ireland insisted on revealing the
fact. The CCA rejected my contention Ireland knew exactly what he
was saying when he blurted out to the Jury that Smith had been murdered;
bluntly, he was aware of ASIO Intelligence which showed my case "ruined".
The Court said:
"..it was submitted that the officer's statement, far from accidental,
had been "deliberate and malicious and designed to prejudice the
trial". We regard the inferences upon which the appellant relies (it
is unnecessary to identify them) as far fetched and we are not pre-
pared to draw them." (CCAJ18)
While I have never admitted to the CCA's logic that the jury was not
prejudiced by this remark (after being warned by the judge to disregard
it), I raise the issue upon the questions of Ireland's motives and the
peculiar dynamics of the trial which favoured the Flowers kidnapping.
On May 3-4 Frost gave evidence. It is my assessment Ireland would have
been told (he was not in Court while his evidence was given) Frost was
not a good witness, that discrepencies had emerged and his memory had
repeatedly failed him. It may well be Ireland was told Frost had
confronted Flowers' evidence poorly. Upon the logic of an Intelligence
driven dirty tricks operation, I would suggest two things:
- there was now an urgent reason to discredit Flowers.
- there was no reason for the the Defence to have brought on a
dangerous situation with its own witness.
After Michael White gave evidence, the position for the Defence
could be seen as good as it could be in the circumstances. There were
now various problems in the Prosecution version of the crime. I would
suggest an acquittal was possible if the jury could not decide the
case beyond reasonable doubt.
I would reason Ireland had told the Crown Prosecutor during the trial
period, of the threats received by the Flowers' household. This would
have served to instruct her to prepare an attack upon the witness.
The Prosecutor's attack was very aggressive - as it had to have
been. If Flowers was accepted, Frost fell; if Flowers was accepted,
the jury could reason a conspiracy between Frost and Special Branch
existed. The Prosecutor dealt with Flowers evidence in various ways in
Cross-Examination and in her Final Address:
- Flowers had a grudge against Frost for an alleged assault on
Kerry Flowers.
- Flowers had a grudge against Frost because Frost intervened in an
assault by Flowers upon Carlene Flowers.
- Flowers had made up the kidnapping story because he feared Saleam
and did not wish to testify with the linkage-by-inference Saleam
could have arranged the kidnapping if in fact it really occurred.
- Flowers had received death threats soon after meeting Saleam with the
suggestion the threats must have come from the Defence.
- Flowers had a criminal record.
- Flowers was giving his evidence under compulsion because on May 8
a warrant for his arrest had been put out.
- Flowers was giving false evidence to aid the Defence.
- Flowers had told Snr. Sgt. Mohr of Special Branch he was frightened
of Saleam and did not wish to testify.
There were certain peculiarities of the kidnapping which pointed to
Special Branch involvement. The kidnapping sequence bears some strange
similarity to two scenes drawn from the movie Mississippi Burning
(1988). One scene from the film has a town mayor who was in sympathy
with the Ku Klux Klan ostensibly kidnapped by black militants; these
militants are FBI agents and they acquire information which assists
in unravelling the mystery. The second scene has a Kluxer suspected
of informing kidnapped by his supposed Klan friends who prepare to
execute him; they are driven off by the timely arrival of FBI agents.
FBI men who play the roles are then hurried out of the town so the
"normals" can take over.
Incredibly also, the threats to Flowers are similar to threats made by
phone and allegedly in person to a witness to the Hilton Bombing -
Manfred von Gries. In this case, men warned him against co-operating with
police and a man dressed as an Ananda Marga devotee threatened him from a
motor vehicle. A close friend of Ireland's - Detective Senior Constable
Alan Henderson - "assisted" von Gries to identify a member of the Ananda
Marga. Some people have disbelieved von Gries stories. But they have the
hallmarks of an "op" designed to cast blame for the Hilton Bombing at the
Ananda Marga. Was the Flowers kidnapping a Special Branch script?
If the Defence was involved in the operation, it cannot be suggested why
such a script like Mississippi Burning be used? would be utilized. However,
to the "mind" of political police agencies, such strange methods are not unknown. In this case, Flowers claims to have been pulled over on the Great Western Highway near Westmead by two men in a Grey Holden Commodore (TT390); the car did not look like a police car (TT395); the men said they were
police, but did not take him to a police station (TT401); they asked oblique questions about the case (TT394-5) and finally told him not to come to
court (TT403-4).
However, Flowers could and did describe these men.
Given the kidnappers had no intention of murdering Flowers, the
question of the car was an important one. The RPJ-473 vehicle had
already been used and sighted. It could be anticipated Flowers might
manage to record the number of the Commodore.
It is my belief the kidnap vehicle was stolen. On the evening of
May 8, Rosier attended my premises at Brighton-Le-Sands after Court.
After 6 p.m., he observed two men loitering in Bay Street. They were
driving a Grey Commodore. Rosier noted the numberplate: RNH 187.
He also noted RNH 192 nearby. After the numberplate was taken, the two
men decamped. The following day, Rosier described the men to
Brewer. The descriptions could easily have been the Flowers kidnappers.
The vehicle RNH 187 was registered to a Peter Bartosiewicz of 5
Alma Street Hurstville. However, Bartosiewicz, who would be arrested at
some time later in May or June 1991 on a drug importation conspiracy,
lived at 8/17 Bruce Street Brighton Le Sands in the period of my trial.
This was two streets from my Bay Street address. In 1995, I had
communication in person with a Mr. Ziolkowski, who was accountant to
Bartosiewicz and unaware of his criminal activities. Ziolkowski
told me Bartosiewicz had told him the vehicle had been stolen sometime
in 1991. An enquiry of New South Wales Police established that no
record existed of the theft of Bartosiewicz's vehicle.
I would observe that, if indeed Bartosiewicz's vehicle was the kidnap
vehicle, stealing it from a street near to my place of residence was
a clever ploy. If the numberplate was taken and any evidence led about
it, it would seem to an "average" jury that only my agent would steal
a vehicle from such a convenient place.
By the time of the Appeal, Bartosiewicz had fled Australia for his
native Poland. Given the CCA refused to allow any "fishing trips"
the question of who Bartosiewicz may have been and whether there could
have been any tie between him and Special Branch could not be resolved.
It is still unresolved and given the nature of the drug arrest and
the dearth of information generally available, I cannot advance
the argument further. Only a Court armed with the powers of the
Crimes Act (Sect.474) could determine the issue.
It seems (TT 365) that there was contact between Detective Superintendent Ireland and Carlene Flowers sometime in the late afternoon of May 8. Why
she (according to Ireland) contacted him has never been explained. Ireland
gave a version that she phoned him to say Flowers was in fear of Saleam.
Ireland supposedly asked Mohr to contact Flowers. Mohr then asked
Flowers that evening to come to the Sydney Police Centre at 1 p.m. the
following day.
Obviously, the game plan was this: a statement would be taken. Mohr would
help "shape" it. The contents of the Statement would be used to discredit
Flowers. But Flowers did NOT attend the meeting. Rather, he loyally
contacted Brewer instead!
We have a situation where Special Branch was primed to pounce. The Pros-
ecutor was ready. She accused Flowers of making it all up, or in the
alternative, me of harassing my own man.
A General Submission:
It is my plea that the matter of the kidnapping is a factor which has
soured justice. If, as according to the Court Of Criminal Appeal said, I
bear the responsibility for convicting myself by leading this evidence,
then why not have it examined? The flow of evidence here suggests a
dirty tricks operation. It cannot really be - anything else!
There is new evidence which establishes facts which simply cannot fit. There
are the evasions of the Director Of Public Prosecutions, a policeman who
cannot remember things and Ireland's refusal to reveal all to the Court.
There is a "smoking gun" which until now the State refuses to acknowledge.
The truth is obviously something the secret police do not want revealed.
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.