Pardon Me:
The Anatomy Of An Australian Political Trial.
James Saleam. January 27 1999
Section Nine
A Table Of New Evidence
In Support Of A Judicial Inquiry.
Explanation Of The New Material.
Its Relevance.
In this Section, I explain to you why the Supreme Court of New South Wales should order an Inquiry into my convictions. I do this by outlining in brief form what all the new evidence is, and how it impugns the verdicts won
against me (and upheld on Appeal). In most cases, the material referred
to here has been discussed above.
1. Neville Ireland's Committal Perjury
As the officer who directed the case, Neville Ireland's conduct was
crucial to the integrity of the process.
It is certain that Ireland perjured at the Committal hearing
(December 4 1989) in respect of his general relationship with "Catherine"
and a specific discussion with her regarding the Funde case. The evidence
given by Ireland at the Royal Commission Into The New South Wales Police
Service (RC) and the Report To Parliament Regarding The Former Special
Branch (Police Integrity Commission) established the parameters of his relationship with "Catherine". Ireland's Duty Book was available to those authorities.
This Perjury does not prove that Ireland was untruthful generally. But it
shows:
(i) he was prepared to casually lie when it suited Special Branch
requirement in keeping his "informant" in reserve.
(ii) he was prepared to deceive a Court and deny possibly probative
evidence from examination.
(iii) The Perjury was a layered in character, expressive of Ireland's
character and attitude towards the Funde prosecution.
2. Neville Ireland's Three Counts Of Pervert Course Of Justice.
On three occasions, Neville Ireland caused to be tendered in proceedings
involving Saleam, Affidavits sworn by senior police officers (Stirton,
Gibson and Jarratt), knowing that justice would be frustrated thereby.
Each time, the Defence had subpoenaed for records relating to Ireland's
money claims on particular days when he dealt with Catherine.
Each time public interest immunity was claimed by a senior officer upon Ireland's advice. In the course of the Funde trial, the information
which would have been disclosed, and the falsity of the public interest
immunity claim which was cast to exclude the information from view, might
have resulted in the utter discrediting of Ireland's evidence. It would
have tainted the entire Prosecution case.
These three offences (Crimes Act Section are extremely serious.
Taken together, these offences show:
(i) Neville Ireland would deceive senior police to protect the organized theft of Special Branch funds by himself and other officers.
(ii) Neville Ireland would falsely claim public interest considerations
to exclude evidence from a trial where that evidence could materially
affect the result.
It is argued that the combined effect of this new evidence is to:
- weaken the "verbal" evidence advanced by Ireland and Poniris which
recounted an alleged conversation with me regarding my whereabouts on the
night of the Funde crime. Any claim made that this evidence was perjury
should be received as probability.
- render suspect other testimony from Ireland in the case. Ireland's
evidence was the "glue" which held the whole Prosecution case together. The removal of this evidence does not mean Frost and White were necessarily untruthful, but it places under a cloud the preparation of their Statements and causes a doubt to arise: could some parts of their
evidence be falsity put to them by Ireland?
3. Neville Ireland's Refusal To Reveal ASIO Op.; Pervert Course Of Justice
No.4.
It is clear Ireland was aware that an ASIO intelligence operation was
underway at the Tempe premises.
He chose to reveal this fact neither to the trial Judge nor to the Defence.
It was germane to the Defence case as it developed - in Ireland's
very presense while he sat in the Court. His silence denied us the right to recall both prosecution and defence witnesses to explain evidence, to bolster
Flowers' credibility, to raise doubts over Ireland's honesty and the
presentation of the prosecution case.
It was relevant to the Final Address of the Crown Prosecutor whom he
permitted to deveive the Jury (as below) in Final Address, with material
about Flowers' credibility and the kidnapping, which he must have understood to be evidentially weak.
It rendered absurd trial Judgmments by the Court in respect of Flowers.
This offence of pervert the course of justice suggests I did not receive
a "fair trial" according to law.
4. Neville Ireland's Revealed Character From Royal Commission Material.
In weighing the essential credit of Neville Ireland, his evidence at the
Royal Commmission is crucial. Some of this has been referred to above
(1,2). Other areas include his drunkenness, the general climate in the
Special Branch of corruption and conspiracy, misuse of the name of another
Special Branch member during the Judge Yeldham affair when Special Branch
protected this homosexual State officer from public exposure. In other
words, Neville Ireland was the type of officer who could easily operate a "frame".
Ireland admitted lying to Royal Commission investigators who were investigating the Yeldham affair and lying under oath to the Royal Commission.
This evidence was neither available at the Trial nor the Appeal, and
raises fundamental doubts over any evidence Ireland may have given and over
the essential credibility of the Prosecution case.
5. The Question Of Catherine.
The identity of "Catherine" is well-known to the State.
The attempt to employ this woman against members of the Australian National Action establishes the essential hypocrisy of the Special Branch in claiming threats were made by this party to the families of Ireland and Garvey.
The use of "Catherine" shows malice towards members of Australian National Action and criminal conspiracy.
Ireland's theft of money as "informer payments" to "Catherine" would
tend to suggest that a false history of the Funde case was crafted by him to justify the payments. Some of this history may well have
contaminated the trial evidence.
The likely fabrication of records by Ireland and former SB Commander
Ryan to establish that secret venues for meetings were made for by the
Special Branch, suggests a conspiracy to cover "Catherine's" allegations
of sexual harassment from Ireland.
Ireland's concern at the allegation of sexual assualt raised on March 26
1991 would explain the desperation of Special Branch to secure my conviction
at the trial. This secret history would show why the Ireland/Poniris perjury
was constructed in the week before the trial. It would provide a reason for
the dirty-tricks operation to discredit the evidence of Flowers.
In theory, "Catherine's" evidence could have been led at the Trial. However,
it is only the revelations of the Royal Commission which led corroboration
to the information advanced on this Application.
The question of "Catherine" creates a doubt or question about the credibility of the entire Prosecution case. It casts a pall over any and all
evidence offered by Ireland and Poniris.
6. The Forged Notebook/Occurrence Pad Proves Perjury.
The Ireland/Poniris "verbal" (perjury) was a neat little piece of
untruthfulness, similar to other "scrum downs" (to use the Royal
Commission's language) which plug a hole in Prosecution evidence.
It is appropriate that the State allows me to carry out an examination
of the key documents which "support" the evidence. If it is shown the
documents are forgeries an offence under Crimes Act Section exists.
(i) Electrostatic Deposition Analysis
Since I know that I did not tell Ireland and Poniris on January 30 1989
that I had been home on January 27 watching video films with my wife and
Wayne Smith, then any material written in Poniris' Notebook and onto
an Occurrence Pad are falsities. Further: since no possible reason
could have existed for Ireland/Poniris to have written down on an official record in January 1989 that I had said these things, then the Notebook
and Occurrence Pad were created later.
I have applied for the production of these items, and preceding pages
of the document-set, in order that Electrostatic Deposition analysis
can confirm my claim. It is my hypothesis that the documents were forged
sometime during the period of the ASIO surveillance operation in 1991.
Electrostatic Deposition analysis has proven police perjury in various
cases. It will be successful here!
(ii) The ABC Journalist.
Watch this space! Investigations are presently underway to contact the
Australian Broadcasting Commission journalist who was at my premises on
January 30 1989. This journalist - if he is reading these lines - has a
moral responsibility to come forward and tell the truth.
The receipt of this independent evidence would establish the conniving
and corrupt nature of Special Branch evidence. It would cast a doubt over
this piece of pseudo-corroborative material. The journalist would know
that my conversation with Ireland/Poniris took place elsewhere from
where they alleged, and with no other person present. Contrary to Ireland/
Poniris, my wife was not present during the "verbal" but with the
journalist. This evidence would be the final proof of the falsity of
Poniris' Notebook and the Occurrence Pad.
In combination, the proof of (i) and (ii) is new evidence which can be
read in conjunction with the other material on this Application. It is
material which would cause the Inquiry to reject the evidence of
Ireland/Poniris. It raises a question therefore as to whether Smith
was ever at my premises on January 27 1989.
Watch this space for an "update".
7. A Case For Smith:
(i) Bill Brewer's April 12 1991 Legal Conference: ASIO's Record.
We now know that on the above date Brewer was present at the National
Action offices for a "view" and discussion of the Defence evidence.
Wayne Smith was present. We have Brewer's personal Diary.
Any reasonable Jury was entitled to know what defence (if any) Smith
intended to make to the charges.
The Trial Judge in Summing Up to the jury:
"Here the Crown seeks to prove that the accused, together with the man
Smith, produced the 12 gauge pump action shotgun, that they had it jointly
in their possession, for a common purpose, and that they gave that weapon
into the possession of the two young men, Frost and White, in order that
that common purpose could be further pursued" (p.11)
Very clear. But IF Smith was not there to have been part of this
arrangement, what then?
On April 12 1991, Smith was present, while others in his hearing, clearly
said that he was NOT at the Tempe premises on the evening the crime was allegedly organized.
By silent and conversational consent with Brewer and the others, consent,
Smith has adopted this version.
The ASIO tapes and other records MUST be produced.
A case of this sort is unprecedented. It is a case from beyond life.
The recordings were "legal". "Hearsay" from Smith say the lawyers?! But
the rules of hearsay are never settled. This case has produced a new
situation.
This evidence repudiates the version of Frost and White.
(ii) Smith's Acquittal On Malicious Damage Charge.
Smith's acquittal on a malicious damage charge in December 1989 produced
the decision of Magistrate Beveridge. This Judgment found that a falsified
Notebook had been used by Ireland and John William Garvey.
Ireland was partnered with Garvey in the National Action investigations
and together, they were stealing funds from Special Branch.
Ireland and Garvey had charged Frost with the same offence, but convicted
him upon different facts. This information was not put before the
Magistrate.
The attempt to load Smith with this offence and convict him on the
basis of a separate case from the one operated against Frost showed an
intense malice towards Smith.
The hatred of Smith had obviously formed in the period after his arrest
on April 15 1989 and the charging of Frost with the same offence
(about May 28 1989). This frame-up might reasonably explain why Smith was
dropped into the Funde crime.
The establishment of a case for Smith's innocence is vitally relevant
to undermining the credibility of the convictions. If Smith was not only
denying guilt, but was a target for Special Branch crime, then a doubt must exist as to my guilt. Whether the State likes it or not, the Defence of the charges required Wayne Smith to deny the allegations. His absence knocked
out a pillar of truth and forced me to face the "evidence" in a weaker
position. The case for Smith is part of the whole truth.
8. The Threat In The Police Cells.
Evidence from a Solicitor is available which states in 1992, he spoke to
Shane Martz who was then in custody. Martz denied ever having threatened Michael White in 1989 during the Saleam/Smith Committal. Martz denied
knowing anything about the case. It is appropriate that the State call
Martz to so testify.
The effect of this new evidence is to leave the State with one candidate
for the alleged subornation of Michael White. Let's see if the Prosecution
would ask Michael White to "choose" his tormetor now?!
9. The Intimidation Of Frost.
While the matter passed over at the Trial, it had been brought out at
the Committal that Frost and Ireland gave very different versions of
the issuing of a threat to Frost.
Frost had detailed a meeting where Special Branch officers (Ireland was
one and Garvey the obvious other) had threatened to prosecute him for
attempted murder of Funde. Ireland denied telling Frost he made any
such threat.
The Royal Commission exposed Garvey as a man who bashed a suspect in
custody because he refused to sign a confession. He sprayed a chemical
into his face. He lied to investigators about the incident and then
fabricated evidence against the suspect.
It is a well known principle of law that persons defined as "accomplices"
are known to fabricate material and even accuse innocent persons in order
to curry favour with police.
In this situation a serious hiatus has developed in the evidence. If a
threat was mmade (and Frost for whatever reason revealed it), then a reason
for the existence of the case against me is revealed.
A doubt or question exists as to the substance of Frost's allegation.
10. The Harassment/Kidnapping Of Flowers.
The harassment/kidnapping of Flowers was a remarkable part of the evidence
placed before the Jury. Whether or not this evidence should have been
led, whether or not the Jury used the material against me and whether
or not I am responsible for convicting myself via the exigencies of
adversary procedure - all pale into insignificance as we consider the
full panoply of the new evidence. The evidence points to a dirty-tricks
operation to poison a criminal trial and convict me by fraud.
(i) The Surveillance Car
The vehicle RPJ 473 which was outside Flowers' workshop on April 29
1991, was remarkable find. With only one Roads And Traffic Authority
document in existence about it, I have found that it was recorded with a
false engine and chassis number and with the insurance code of a non-
existent company. It was registered to an address where the person
was unknown. The registered owner "Susan Collins" had no electoral
roll entry and no driver's lisence. The car was registered in January 1991
and the plates were handed in in 1992.
It cannot be accepted that my wife's sighting of this car was of no
consequence. Most of the facts cited here were discovered after the lost
Appeal.
The evidence showed that "someone" had my witness and my agent under
surveillance. Why? Who were "they"? How did "they" know to be there?
Do the records of Special Branch anywhere reveal a link with this
vehicle?
This matter must be the subject of judicial Inquiry. I have taken it
as far as I can.
(ii) The Post Box
The "Collins" vehicle registration document also referred to P.O.
Box 1205 Chatswood New South Wales.
My search has revealed the box was opened in July 1989 by a "company"
which did not exist. The rental card said "refer to manager" for
details of the registration.
As of 1995, the box had not been cleared for a long time.
Was Box 1205, a Special Branch letter drop?
As yet another remarkable thing, it is fair to say that this matter
requires a judicial Inquiry to establish the truth.
(iii) Poniris' Knowledge
I have said that I personally witnessed Detective Charles Poniris
enter the Courtroom at 12.02 p.m. on April 29 1991 and pass Ireland a
note. Counsel William Brewer corroborates this. The timing of this was
curious as it was close in time to my wife pursuing the suspect vehicle
through the Mount Druitt area. It is proper that a search be made of all
Special Branch records to establish the scope of Poniris' duties that day
and the duties of other Special Branch officers. The driver of RPJ 473 was
obviously a Special Branch officer.
(iv) Bartosiewicz
Was the Flowers' kidnap vehicle RNH 187, a Commodore owned by Peter
Bartosiewicz of Bruce Street Brighton Le Sands? Flowers has given in
evidence a description of the kidnappers. Do any Special Branch officers
match these descriptions? This area is in shadow. There is a question to
be resolved. Is there anything to be found about Bartosiewicz's vehicle?
The Flowers Harassment/Kidnapping material (see also Point 11) has never
been tested. The Court Of Criminal Appeal had declined to issue Orders To
Produce on Special Branch, ASIO and the DPP which might have assisted.
In any case, much of the material came to me after the Appeal. The key information provided here is accurate and the allegation of Special Branch
has merit that requires further judicial investigation. A number of
inwevitable conclusions follow from what is available:
- Someone went to incredible lengths to falsely register a vehicle. This
vehicle was involved in the surveillance of the kidnapped witness. This
someone was involved in the case and no evidence could exist that the
vehicle was connected to the Defence.
- There are leads which suggest that Special Branch controlled this
vehicle.
- There are curiosities about the vehicle RNH 187 which say it might
has be been the kidnap vehicle.
This sequence of facts should encourage a deeper investigation. Any proofs against Special Branch taint the Prosecution case fundamentally. It would
imply that Flowers evidence was either true or regarded by Special Branch
to have been of such a quality that it would have crushed Frost's version.
Proof of the kidnapping re-establishes the credibility of Flowers, just as
my inability to prove Special Branch culpability at the trial -
destroyed it.
11. The Sequence Of Events (Inside My Case). ASIO's Admissions. The Tainting
Of The Prosecution Case.
Section Eight has set out a detailed chronology of the information about my legal preparations which ASIO obtained. There has probably never been a
case in Australian criminal history where entire elements of the preparation of a Defence case, were exposed to a political police organization
then engaged in activities designed to hamper the activities of that
accused person - namely me!
Do the tapes exist? Do other records exist? Perhaps ASIO has destroyed
them? We do not know.
(i) Violation Of Legal Privilege/Evidence Fabrication.
ASIO has told the Inspector General Of Intelligence And Security that
they were aware of the need to safeguard my legal privilege while the
operation was in force. Touching! But now, after deceiving the Court Of
Criminal Appeal, they admit they did acquire information on my legal preparations. Why did they not tell that to the Court Of Criminal
Appeal?
They admit passing information to Special Branch about certain investigations. What investigations?
The ASIO admission now places ASIO as a suspect in the harassment
of Flowers, something the Jury was never aware of.
The ASIO admission now makes Special Branch's conduct at every phase
of the trial - suspect.
How do we know Special Branch did not put together a full picture of my
legal activities? Why was Ireland in touch with the Flowers' household
during the harassment period? Did he learn of the discovery of the Morley
tape? Did Ireland learn of the concern the Defence had that a "verbal"
would be constructed around the whereabouts of Smith on January 27 1989?
What of Klumpe's assessment of the routes taken by White/Frost? Was Special Branch aware I would make a Dock Statement and not give evidence? Did they learn the straits the Defence was in after the death of Smith? Is this why
Ireland, contrary to judicial instruction, mentioned that Smith had been
murdered?
The Jury knew none of this.
The violation of legal privilege was so fundamental that ASIO's denial
that it never used the details for its benefit cannot be accepted at face
worth. The manufacture of "operational success" against me/National Action
was its mission at that time.
This issue must be reviewed at an Inquiry. Exactly what information was
passed to Special Branch must be shown.
A question therefore hangs over several areas of evidence and prosecution
trial conduct.
(ii) The Question Of Flowers.
Flowers' evidence was attacked in various ways by the Prosecution as a
fabrication. Yet, ASIO recorded Flowers' wife, on the very first occasion
of contact, stating that a deal was struck by Frost.
ASIO knew what Flowers might say. What did ASIO tell Special Branch?
The harassment/kidnapping of Flowers has never been investigated. Did
Special Branch investigate this crime? Did Carolyn Davenport, who
imputed I was guilty of it, ever refer the matter to the Commissioner Of
Police? For that matter, since she must have "believed" her case, did
Carolyn Davenport cause to have investigated the "threat" I supposedly
made to her witness at Central Police Cells? Somehow, I suspect she did
nothing - just like Special Branch.
The process which discredited Flowers flowed through the chronology as
a security operation.
Why discredit Flowers?
It is stated here that Flowers' evidence, if it had been given by a man
who was NOT shaking in the witness box, whose manner was that of an
ordinary person trying to tell the truth, was sufficient for a reasonable
Jury to have rejected Frost's evidence.
A serious "question" exists over this whole phase of evidence. It is
proper that the issues be resolved. A sufficient pall exists over an entire
part of the trial to properly allow for the convictions to be quashed.
12. The Files Of Special Branch
In March 1997, Special Branch was disbanded and its
files and records seized by the Commissioner Of Police under the direction
of the then-Royal Commission Into The New South Wales Police Service.
The Special Branch was found to have been a corrupt organization and,
in view of that finding, applications made for documents which tend
to show improper or illegal conduct should be considered of merit.
Three files so far examined contain material of relevance: T. Cooksley, S. Rosier, my own.
The three file documents established a number of things relevant to the case. The new material may be given as:
(i) The file of T. Cooksley at p.28ff showed that an investigative operation was run into the members of the National Action committee from August 29 1988 until September 16 1988. More than once did Neville Ireland deny that a Special Branch taskforce had ever been assembled to investigate National Action. Of course, it might be thought he was referring deliberately to the period after the Funde offence (and even then he obviously lied), but it pushes credulity to accept that he did not know of the earlier operation.
(ii) The file of Shane Rosier confirmed (per Cooksley's file) the operation's existence under its code-named 'Odessa'. The Special Branch set out to establish whether or not National Action members had been involved in certain offences allegedly committed against 'anti-racists'. The officers involved included Poniris, Garvey and Magdopoulos (who moonlighted at Villawood Autovillage which supplied 'Catherine' with her discount vehicle in 1990)
.
Rosier's file also confirmed material advanced here regarding 'Catherine'; it contained three pages which described documents that might answer a subpoena issued by Rosier on my behalf - for material relating to an informant and returnable in the District Court on August 17 1990. It seems that on May 5 1989, Ireland wrote a report to the Commander of SB about Catherine and further, there were descriptions of items he had had Catherine write. Undoubtedly the material in Catherine's handwriting assisted Ireland to defraud the Informants' Fund. This proved her 'value' such that 'payments' could thence be taken from the Fund..
(iii)The Saleam file was most helpful.
First: there was an entry made on 12/2/89 in my personal dossier covering a conversation I had had with SB on January 9 1989 at the Tempe offices. This was the conversation Ireland could not 'recall' on the witness stand. It was that day that Brian Clark had appeared and, as I have said, the day Ireland made enquiries about a particular National Action activity. It had been then, 18 days before the offence that I had told Ireland Clark had offered me Funde's address and other details.It was something Ireland said sounded "familiar" and that I could have told him etc.
This reference in the file confirms my Dock Statement at the trial and my overall position. From this reference I did meet SB on that date and therefore I could have told Ireland of the Funde information, something for obvious reasons, Ireland did not wish to confirm.
Second: at pages 1200 - 1202 of the file, there appears a typed document. It appears on the surface to be a typed version of the handwritten 'confession' to the Funde offence as composed by Michael White in the police cells at Penrith on July 13 1989.
Interestingly, the typed document has never before been seen in the case. It was unsigned and had supposedly been typed at Penrith Police.
It contained all the spelling mistakes of the White confession.
The questions must be: did White write his confession and then Ireland type it up (although it was never signed etc) OR did Ireland give White this typed document and ask White to copy it, mistakes and all, as a viable confession?
Of course, if he had done that latter, the statements made by Frost and White were inconsistent and contradictory. But at this stage, Ireland could not guarantee that Frost and White would cooperate in a prosecution of Saleam and Smith and he did, in the cases of Frost and Smith over the McMahon malicious damage affair, operate contradictory cases. And if Ireland was merely preparing a statement for proper use in court there is no reason why he would not have corrected the mistakes.
Certainly, had this statement been known of at the time of the trial or the Appeal, it would have opened up new lines of cross-examination.
Third: my personal dossier seems to contain a section (blacked out) that might easily be my conversation etc with Ireland and Poniris on January 30 1989.
Fourth: at page 863 of the file Detective Georghiou of the SB, in an occurrence pad entry, makes reference to a John T(....). The name of this person has never before figured in the proceeding.
Fifth: at page 871 of the file there is a clear description of two different persons in two different cars, observing Funde's home in the week prior to the offence. In one case, a vehicle registration was taken (by Funde?).
The vehicle registration number must be produced such that enquiries can be undertaken.
The existence of other conspirators in the offence must be established.
Sixth: at pages 668 - 671 of the file, we learn that a highpowered lobbying process was underway in October-November 1990 to prosecute me for the (alleged) criminal defamation of Ireland.
Assistant Commisssioner Gibson wrote (6/11/90) concerning a "contempt of court" action and a State Investigative Group taskforce to investigate. The Director of Public Prosecutions, Reg Blanche, referred the matter to the Attorney-General.
Most significantly, Assistannt Commissioner, Col Cole, wrote that I "may resort to violence" against Ireland and in dynamite fashion said that:" the continued publicizing of the material might abort the proceedings".
The question of the public expose of Ireland had obviously thrown the prosecution case into crisis and this might also explain the ultimate involvement of ASIO in the case - that it may be resolved successfully.
Ireland's malice is an issue again. The Police too were in a position to turn a blind eye to any allegation from me of 'irregularity' against SB in general and Ireland in particular. I would say that the criminal defamation matter set the scene for the offences committed against Flowers in order that the jury could be stampeded into the 'necessary' guilty verdict.
There was a tacit admission by Senior Sergeant Bowen that I could use the full files to work against my convictions.
The following Special Branch documents are constructively available. Quite simply: too much has been denied to me and there are other documents that reasonably impact upon the case.
(i) Material relevant to the receipt and use of ASIO intelligence from
the surveillance operation. (Points 3, 10/11)
(ii) Ireland's Occurrence Pad entries which show that on January 9 1989
I told him of the "Brian Clark visit" and his attempt to pass Funde's
home details to me. His Duty Book entries for the same information. This material would suggest Ireland perjured when he said he could not recall
being told of the Clark incident. (Point 6 and new evidence of perjury)
(iii) Documents which show what, if anything, the DPP was told about the
ASIO operation. (Point 15).
(iv) Documents which refer to the vehicle RPJ 473 and post box
1205 Chatswood. (Point 10)
(v) Charles Poniris' Notebook for the period January/February 1989 and
the Occurrence Pad which contains entries for the period January 27
1989 - February 2 1989, or as sufficient to carry out Electrostatic
Deposition Analysis. (Point 6).
(vi) The complete personal files for James Saleam, "Catherine" and
Wayne Smith, Jason Roderick Frost and Michael George White.
These records would probably establish the aversion in which Saleam
and Smith were held, the misuse to which "Catherine" was put, and
salient facts regarding the relationship which formed between Ireland and
his "witnesses".
(vii) Neville Ireland's Duty Book (or books) for 1989-91. Here we
receive proof of Perjury (Points 1, 12 (ii) (v), possible alternate
versions of the Funde crime, the misuse of "Catherine", the scope
of Ireland's scheme to convict me of a serious offence and the use of
the ASIO operation (Point 3, 11) and the Flowers' harassment/kidnapping
(Point 10).
(viii) Material regarding Special Branch officers who might match Flowers'
description of the kidnappers, the whereabouts of Special branch staff on
April 29 1989 (the time of the RPJ 473 surveillance of Flowers) and May
8 1989 (the Flowers kidnapping).
(ix) The Notebook used in the Wayne Smith prosecution for malicious
damage (Point 7(ii)).
(x) Occurrence Pad/Notebook entries from Neville Ireland regarding
contact with the Flowers' household during the period that telephone
threats were being received, particularly Ireland's conversation with
Carlene Flowers who reported threats to him. Any document which
shows what Ireland did with this information. (Point 10.)
(xi) Other Special Branch documents regarding the Funde investigation
and prosecution.
(xii) Documents which were referred to by implication, courtesy
of former Special Branch Superintendent Ryan, and which say that "Catherine" was interviewed at venues paid for by Special Branch. (Point 5)
Given the findings of the Royal Commission Into The New South Wales Police Service and the Police Integrity Commission, which were adverse to Special
Branch and Detective Ireland personally, this Application to examine
its files for exculpatory evidence in my matter, cannot be held to be
vexatious or improper.
It is clear that I was not convicted from unimpeachable evidence; there
are also unanswered questions hanging over parts of the evidence. The
production of such records as would assist in the Application for a Crimes
Act Inquiry is appropriate. It removes any claim that State agents were
involved in a malicious prosecution and have been rewarded by complicity in
the suppression of information as may overturn a conviction.
It is my claim that Special Branch records must cast a "doubt or
question" over parts of the evidence.
13. Trial Judgments Faulty.
Trial Judge William Ducker, made one intra-trial Judgment which can
now be seen as faulted in fact. His Summing Up to the Jury also contained
certain faults of fact. The claim made here is probably not without
precedent. It goes to whether the original trial process was in fact
- fair.
(i) At TT437-441, there was intense discussion between Defence Counsel
and Judge Ducker regarding whether an opportunity should be granted to
the Defence to seek further evidence to establish that Flowers was
kidnapped. Ducker declined any adjournment. He did proceed on to tell
the Jury that such an application was made and declined.
As the Court Of Criminal Appeal has reminded me: both myself and Brewer
were at fault for not seeking to have my wife recalled to testify about
RPJ 473. Ah! How wonderful it is to be convicted of my own omission!
If we had done this, and Judge Ducker had refused to allow her evidence,
I might have had my conviction quashed.
But it was fairly clear that Judge Ducker did not intend any such material
to "take over" (his words) the trial.
He told the Jury instead that any person who been in Court and had heard
Frost in Cross- Examination would have known what evidence Flowers would
give and could have been responsible for the kidnappiing. He then heard the Prosecutor's Final Address (as below) and did not correct himself.
It is my claim here, from my own words as spoken near the ASIO transmitter
and on the telephone, that ASIO knew of Flowers' existence and his likely
evidence. The effect of Judge Ducker's actions was poisonous even if
unintended.
Judge Ducker's decision to decline an adjounment and to ignore the
Prosecution's claims about Flowers' unreliability and my possible
responsibility for the kidnapping, created unbridgeable prejudice.
(ii) The Summing-Up 44-45 repeated material about the Flowers's
harassment/kidnapping. The Judge's descriptions of Flowers receiving
threats after meeting me, being threatened to come to court or have his
family and himself murdered, of not noticing the registration of the car
in which the kidnappers travelled and the fact they did not look like
police, was inflammatory. The Jury was told what was wrong with
Flowers. There was no information of the ASIO operation or Ireland's
knowledge of it, and no information from me regarding how ASIO would have
had the knowledge about Flowers.
It cannot be wondered why the Jury retired for but one hour - and returned
with verdicts of "guilty".
And yet, this trial was conducted some six weeks before the public
admission was made that an ASIO operation had been underway at my premises.
If one juror had held out for "not guilty" or was uncertain, then perhaps
another trial might not have been held before the ASIO revelations.
I do say that Judge Ducker's Summing Up was generally favourable to the Prosecution as were his other interventions during the trial, but it is
unlikely that he was aware of the ASIO operation. He soldiered in the dark.
In doing so, his decisions, whether right in law or not, misguided a
criminal trial.
I did not receive a fair trial. The trial was a facade for the workings
of a corrupt police officer and an INtelligence operation.
14. Appeal Inadequate.
The Court Of Criminal Appeal dismissed my Appeal on February 11 1994.
The idea that I convicted myself by leading the Flowers' kidnap evidence,
and that therefore such a conviction was truly safe - was one absurdity
which our adversary system can produce.
The CCA was deceived by ASIO which did not admit that it had acquired information on my legal preparations (hence its judgment denying me
exploratory Orders To Produce on various agencies).
The CCA was simply wrong when it found that both I and my Counsel knew the
ASIO operation had occurred; there was no evidence for that other than
Brewer's uncertain memory of reading about the "bugging" in a newspaper at
the time of the trial.
The CCA's findings about the new evidence brought on the Appeal were
occasionally perverse and even if legally "sound" beg further questions.
That ASIO had conducted an operation was ignored in terms of judicial
rulings at Trial as was the claim that the Prosecutor's Final Address
was false to facts discovered later and prejudicial at the time. New
witnesses were ignored as not affecting the verdicts.
The Appeal shifted the goal posts! The Appeal has been shown as grossly
inadequate to resolve the issues which occurred at the trial. The new
evidence brought there when summed with the material referred to on
this Application will demand full investigation.
15. Prosecutorial Wrongdoing.
(i) The ASIO Operation.
Did the Director Of Public Prosecutions office and the Trial Prosecutor
know that ASIO had conducted the operation at my premises? Was the idea
that my trial would be pushed through before this fact was revealed
in the Whitehouse prosecution? If I was acquitted, no harm done; if I
was found guilty, it would be hard for me to protest.
The DPP says it has no record as to when it received the famous ASIO
murder tape. And therefore no idea of when it received the official
information. First up, the DPP said the information was contained in
an Affidavit from me asking that the trial date be vacated. They changed
that story when I produced the draft Affidavit. Now they just say
they don't know.
The police officer who received the tape on April 23 1991 at Special
Branch headquarters - Michael Ashwood - cannot remember when he
gave the tape to the DPP or even what he did with it. He was an officer
at Newtown Detectives. No record exists at that Station as to the
receipt of such crucial evidence. Strange? Or just utter rubbish?
The Prosecutor Carolyn Davenport says she knew the operation had been
conducted because she read of it in the newspaper around the time of the
trial. But it was never mentioned in any paper. She refuses to discuss
the matter further.
If either the DPP or Carolyn Davenport knew of the operation, then my
trial was a stain on justice.
Where goes all the fine rules about fairness towards an accused? Where
goes the DPP's policy that all relevant evidence must be given to the
Defence? Or was it "decided" the ASIO op wasn't relevant?
Only a Judicial Inquiry can force the "L.A. Lawyers" at the DPP to come
clean and tell the truth.
(ii) The Final Address.
The Final Address to the Jury given by Carolyn Davenport was no ordinary
Address. Like the Address of a certain Crown Prosecutor in Anderson's
Hilton Bomb trial (October 1990), it created "evidence" to explain
what the Prosecution case couldn't, and it was otherwise a wildly
inflammatory speech.
- Davenport said that the fact there were certain discrepencies in the
evidence of Frost/White proved Ireland didn't script them.
- Davenport inferred that White might have known who threatened him in
the police cells, but just didn't want to say. (Has she ever asked him?)
- Davenport said that I could not say what motive Ireland/Special
Branch had to "frame" me. (I certainly can now!)
- Davenport attacked Klumpe's attempt to reconstruct the crime by
saying he had a prepared route to drive. And she wangled out of the
impossible places where Frost/White had allegedly driven together by
inventing places they never talked of namely - "docks" and "Drummoyne".
- Davenport lied when she said that neither of her witnesses had
any immunities. It was technically true, but White had made his Statement
alleging threats in the police cells, armed with an "undertaking".
Continually, Davenport argued that Frost and White were not overly
intelligent witnesses but despite their discrepencies, they were
"consistent" as to their story. She implied they were frightened of me.
(They were not consistent at all save to a few central tales.)
However the full force of this Address was saved for Flowers. It is clear
that Carolyn Davenport regarded his evidence as the test of her case.
That is important, because this is precisely a key part of the
argument here.
- Davenport made it clear that Flowers met me and then he received
phone threats.
- Davenport noted that a voice told Flowers "two days prior" to the
trial: "if you don't go to court, I'll kill you". "Who was calling Mr.
Flowers?" She said there was an "inference" that "the accused" or
"his interests" were involved.
- Davenport said that a "stronger impression" of my guilt arose from
the kidnapping when the alleged kidnappers ask: "what evidence are you
going to give?".
- Davenport said Flowers was "frightened of the man on the end of the
phone", "frightened in the witness box" "trying to remember the contents
of his statement".
- Davenport played on the idea that the kidnapping might not have
occurred: "fantastic story that he was kidnapped" and he took "no car
number" "just got the guided tour".
- Davenport said that the kidnappping "goes very much to his credit; if you think he's frightened, then his evidence of fear" can be used to dismiss
his evidence.
- Davenport said that Flowers believed Frost had broken his sister's nose
and being "resentful" wanted "to get even with someone" - namely Frost.
The "contact from the accused" was convenient for this purpose. But the
phone calls began telling him to come to court. "Who else could have done
this, except for the accused?"
This Address was a fantasy in fact. I cannot believe for one moment that
Carolyn Davenport could have reasoned as she did. But allowing this was
what she thought at the trial, how does she rate the effect of its
delivery? I thought it was rather "good", if "good" means the stuff of
which guilty verdicts are made.
I have no doubt the Jury thought she made perfect sense as far as the
Flowers material was concerned. She had glossed over the problems of her
own case and focused on the very "side question", the Courts have
previously insisted cannot be pursued. Bluntly: Carolyn Davenport
convinced the Jury I had harassed and (possibly) kidnapped my own
witness, if in fact he wasn't lying about about the kidnapping.
The Final Address is faulted by the new evidence. If there is now a
"doubt or question" over the entire Flowers sequence, then we must ask
whether the Final Address occasioned a miscarriage of justice. If its
content was factually flawed in some way, then it must be concluded that
it brought on a miscarriage of justice.
Further, if there is any proof that Carolyn Davenport was aware of the
existence of the ASIO operation, then a serious issue of misconduct
would be extant.
These questions can only be dealt with at a judicial Inquiry. No authority
less than such an Inquiry can compel the DPP to come clean.
16. The Discovery Of The Firearm (?) Perjury From Frost And Ireland
Amounting To Conspiracy?
Was Jason Frost's pump action shotgun found? And found at Special Branch headquarters.
Senior Sergeant Trevor Bowen has deposed that no firearm of this desription has been located in connection with my application for my Special Branch file.
Frost denied at the Trial that he had ever owned a shotgun and had never
fired one either (TT 29, 61). Questions were put to him in Cross Examination
to lay the basis for Flowers' evidence about a shotgun.
Ireland denied at the Trial ever recovering a shotgun: "No that is correct".
(TT 270) Of course, Ireland may now say he was referring to "my" gun, as
given to the offenders. But did he recover a gun which he didn't want the
Jury to find out about?
The Report To Parliament Regarding The Former Special Branch Of The New
South Wales Police Service (June 1998) said at Paragraph 6.22:
"There was a cabinet in the records room found to contain firearms,
other weapons and detonators. It was revealed that some of these items
had been there for eight years. The last Commander of Special Branch
admitted no knowledge of these items. A subsequent Internal Affairs
investigations found that the same firearms had been seized by the
Special Branch during an operation but had not been disposed of in
accordance with the proper procedures. The other weapons and the
detonators could not be identified as having been seized in any operation
but they were located in the Special Branch records room with documents
relating to an alleged extremist group."
Eight years from the time of Ireland's 1997 interviews means 1988-89.
Ireland's lack of knowledge. An operation. Two lots of weapons and the
literature of an "extremist group".
It is here revealed for the first time:
(i) that the first quantity of weapons was recovered from Rodney Cuneo
in 1988. The reason for the seizure was never given and Cuneo, a licensed shooter, never recovered the weapons. Cuneo (mentioned above) did not
receive correspondence about his property.
(ii) Michael Brander, Chairman of Australian National Action, has
made a Statement that he had seen Jason Frost's pump action shotgun
in March 1989. This has confimed my Dock Statement.
(iii) The other weapons mentioned with the documents concerning
the "extremist"group, must now be produced to establish if there is any sort of shotgun
shotgun amongst them. An investigation must be undertaken to confirm the ownership-history of any such weapon. What the documents are must be
revealed.
Should there be anything which can be traced to Frost, then both Ireland and Frost committed perjury. This perjury could only have been by arrangemment ie. as a result of a conspiracy. The combined effect of proven perjury and the physical existence of any weapon that was Frost's
would be a ground to order an Inquiry.
Whatever the truth may be, there is a question hanging over the weapons found at the SB headquarters.
17. Michael White's Signed Confession.
Although it could not be used at the trial, this Statement deserves
consideration and investigation. It gave a version of the crime which
exonerated Saleam/Smith.
It will be produced, with its imperfections, on the basis that Michael
White made it to assist the Defence. He made it because he did not
want to be a pawn of Neville Ireland and Special Branch in a political
prosecution.
It will be produced also on the basis that the DPP withdrew the prosecution
of Perry Whitehouse concerning the taking of the Statement, because it was
feared that with Brewer for the Defence, an attempt would be made to
re-open parts of the case against me, to glean new evidence, to discredit
the verdicts against me.
This Statement is a piece of direct exculpatory evidence.
Plea For A Judicial Inquiry.
When the seventeen matters of new evidence are summed together, a case has
been made that a "doubt or question" now pertains to the two convictions
won against me by the State.
The trial evidence was never strong or compelling. It is almost certain
that conviction followed upon the Jury's belief that I had intimidated
my own witness Flowers; the death of Smith cast me in the role of
a person surrounded by violence and mayhem and the lack of a case
for Smith made it seem our cases were contradictory. The evidence of Frost
and White was appalling but it was enough to have set a conviction.
Even so, there were serious blemishes upon that evidence and there was
a Defence case which was consistent.
The Jury cannot be blamed.
The new evidence given at Appeal did not overturn the verdict, but it
created additional doubt. The Court Of Criminal Appeal followed the
norms of adversary procedure and its rules of evidence, and produced an
irrational result. The new evidence tilted the scales - but not
enough!
My new Application brings forward material which tilts the scales of
justice absolutely. The State cannot ignore the material advanced here.
It shall be compelled by means of a public campaign to confront
these issues. For the Supreme Court Of New South Wales, the appropriate
course of action is to instruct a Justice to review the new material.
My real crime was that I opposed the economic-political-cultural
Asianization of my country. This political "crime" was answered by the
time-honoured practice of a political trial with all the deceit which
goes with it. Pardon Me!
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.