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sydney alternative media - non-profit community independent trustworthy
Tuesday, 17 July 2007
The breaking down of Dr Haneef, tear in eye after 10 days
Mood:  accident prone
Topic: legal
My instinct is the federal police are gaming both the Big Media and defence lawyer/civil liberty lobby. The premium and priority for the AFP and security services in this situation surely is ANY intel Haneef innocently or not can provide as access into the world of Al Qaeda. In this way the 'good' Doctor is a gem of intel they would never willingly give up from the most serious to trivial cultural insights he might have into the bad 2nd cousins. Law Council on Fran Kelly abc 576 earlier today says they would be "surprised" if the full evidence was not presented to the Qld magistrate regarding bail. But even if the Law Council is right, that still leaves all the intel Haneef potential holds not directly probitive of charge(s). The longer Haneef is held the looser his tongue will be - even Nelson Mandela says solitary is the worst suffering for an intelligent man after 2 or 3 days. We need that contact to really live. Also a trivial charge helps keep open lines of inquiry and investigation without tipping the police hand to the opponents so the Law Council and civil liberties lobby may yet get that surprise. And that is even allowing for the "scathing" view of lawyers Rob Starry (UTS lecture 2006, last night UTS) and Lex Lasry thesis (Trioli abc 702 show this morning) of deliberate contamination of the public, and Richard Neville (former editor Oz Magazine) incredulity as to systemic failure (no doubt) of sub judice in this Haneef case on Glover (ABC 702) last evening, making a fair trial virtually impossible. It's all about the intel, and little people get crushed in that spooky world.
Tom McLoughlin, solicitor

Postscript #1

Sent: Tuesday, July 17, 2007 8:00 PM
Subject: Tony Burke MP spotted at Keating The Musical

Opposition spokes on Immigration Tony Burke was spotted Sunday 8th July at the Seymour Centre in Sydney for the last week 2nd season of Paul Keating the Musical. It was a packed house. Was it 'John Howard' singing like a bellowing heifer "I want power", or 'Bob Hawke' with a tinny schmoozing women in the front row, or kinky Paul "doing John Hewson slowly" that appealed to MP Burke? Or was it ribald 'Alex' getting "freaky"? Burke so quick to play the angles should fit right in to a future Rudd musical after me-tooing the ruthless Haneef star chamber. 'Whatever it takes' - alive and well here in Sydney.
Tom McLoughlin

Postscript #2 18th July 07, 8.45 am

Well the dynamic real politik of this situation is really flowing and it's not entirely in anyone's control would be my view.

1. Crikey ezine  notes with some heavy logic  the govt's anti terror laws didn't keep their target Haneef in detention, causing them to rely on immigration law. Strike 1 the federal government.

2. AG Ruddock is saying last night (Lateline?) Parliament may need to stiffen the no presumption of bail laws causing Tim Bugg of the Law Council to sound warnings about civil liberties 'built up over centuries' on Trioli 702 this morning (as we write). Work in progress.

3.  The ALP is 'quiet on this' to quote Fran Kelly this morning in talkies with Michelle Grattan earlier today, noting their Tony Burke maintains 'bipartisan support for the government with nothing futher to say on this operational matter'.  That's out sense of it too - operational. But also ruthless as regards rights but also fairness to 'good' Dr Haneef.

4. There is a fraught debate over the 1st of 2 records of interview (all 142 pages of transcript) leaked, that's right, leaked to The Australian. AFP chief Mick Kelty in mild grave tones was on AM abc 702 after 8am this morning and what a cracking quiet interview it was. Along the lines of 'I [Kelty] have rung the editor [Chris Mitchell] already this morning and been assured the transcript didn't come from the AFP, and he knows I am publicly holding him to that.' The interview sails on with speculation it could be lawyers of defence or prosecution or maybe govt [departmental/ministerial staff - say Immigration or Attorney Generals on the visa cancellation?] Kelty swears on air Ministers couldn't have access to the transcript, but that the leak to a newspaper is contempt of court - presumably for running evidence in public that is subjudice. Kelty is surely correct about that too including contempt by the newspaper, but given the systemic abuse of subjudice it's a collective Big Media guilt, and a faint hope of Kelty perhaps due to the election climate to flush the truth of this case out. Right to know and all that.

5. Kelty incredibly says the transcript #1 leak damages the prosecution case. But does it? How Kelty can offer that legal advice is beyond me. Doubt he is a litigation lawyer even if a top police officer. Maybe he means it sabotages the legal process due to mis-trial for contempt. But it certainly helps the immigration visa cancellation rationale of Immigration Minister Andrews (causing some outrage) for showing the good Dr was financed in his studies by the UK arrestee, was in fairly regular social contact, and shared a flat.  [Actually he didn't share a flat apparently, only visited for several days: Refer front pager The Australian 20/7/07. Also on reflection it is fair to say transcript #1 does damage the prosecution as per the headline quoting Haneef 'I am no radical' front page The Australian 18th July.]
You will notice we don't link to the 142 page transcript posted apparently by The Australian because we suspect that's not open to a practicising lawyer (this writer) in a case where the charge is before the court.

6. What becomes apparent from the transcript summarised in paper version of The Australian is that Dr Haneef at first failed his UK medical exams which is explicable on many levels - culture shock, language, pressure to get paid work. That he was loaned 300 pounds by the arrestee cousin etc etc. But it could also suggest he was not the 'the best and brightest' to quote Michael Sheur ex CIA Bin Laden unit and therefore not in fact Al Qaeda material? On the other hand he might have been more vulnerable to their ideology too?

7. Later same abc AM show Peter Russo, defence solicitor doing a stirling job as advocate states categorically he didn't leak the transcript #1, and is annoyed at being treated like "a mushroom" by "someone".

8. Chris Merritt, legal editor of The Australian, for the last two months has been reporting the demise of a very stupid idea from the peak Qld lawyers union (Law Society there?) that the profession's Code of Conduct should ban lawyers speaking to the media during a court case. That is, self censorship. The idea which limped along under the radar it seems sort of evaporated on contact with sunlight after howls of derision from lawyers on the ground calling it "bizarre". Indeed. Imagine Peter Russo, Qld solicitor being gagged after his stirling work this last week in maybe the biggest case of his life? And what a nuggety humble weather beaten (Bruce Willis in 16 Blocks?) type of lawyer he proves to be, visiting the cells up there in Qld. Bravo Peter Russo. You're doing the profession proud. Just be yourself. Your rough hewn sincerity is priceless.
Postscript #3 late 18th July 2007

Well what do you know, the defence barrister not so much leaked, as released the transcript to The Australian, saying its only what would have been presented into public hearings at a commital hearing. No bail has been posted and Dr Haneef now resides in a Qld prison, and not Villawood Immigration Detention Centre in Sydney as hoped by the Federal Govt. And the PM and his AG Ruddock are fairly ropable on the nightly tv news bulletin/s that someone else should dare to seize the Big Media initiative in place of tactical prosecution leaks. Ouch.
 [acknowleding Crikey.com.au cartoon ran 19th July 07]
We at SAM were not the only ones thinking it was a govt placement into The Australian, and we even rung around a bit with the theory it could lead to a mistrial get Haneef out of the Qld legal system and into Villawood. We still don't understand why this material was not subjudice and thus a breach of those rules by The Australian and the defence and indeed earlier leaks by the govt/prosecution. It's all too weird.

Postscript #4 8.30 am 19th July 07
The Qld Law Society is backing the ethical judgement of the defence barrister, The Australian is defiant with legal editor Chris Merritt front page (still to read), and the barrister Stephen Keim SC is determined in the Big Media like Lateline last night and the press generally. Indeed he has repudiated the personal attacks of PM, AG and AFP chief Mick Kelty. It's legal high drama for us more humble lawyers, and indeed thrilling to see senior lawyers in possibly their best light fighting for the little guy (like Mandela, Robert Kennedy, Gandhi).

What becomes apparent is that senior Victorian defence lawyer Rob Starry naming in the most profound "scathing" way the racket whereby the govt/prosecution tactically, strategically leaks evidence in terrorism cases against the defence over the last 2 years in various cases, where the AG Ruddock and PM have turned a blind eye, has now compromised their ability to credibly criticise the action of the defence barrister Keim (pictured front of The Australian today).

It is legal reporting AO1 to not run contentious evidence through the general media, indeed a matter this writer was effectively
sacked/resigned over for refusing to circulate so in a previous job with Sydney City Hub front cover story about a King Cross sex shop raid. Suffice to say we don't have high profile friends to back us up and were not willing to put our practicising certificate at risk based on say the ABC legal handbook advice.
[We note Richard Ackland in his column in the Herald, it has to be said rival to The Australian but still trustworthy, dated 20/7/07, reinforces our understanding of orthodox subjudice rules of legal reporting by quoting the Qld Bar Association Rule 60(a) to not publish or assist publishing material concerning a current proceeding except for quite "anodyne" matters which don't cover the police Q & A transcript. The reason such a rule exists is orthodox subjudice as we expressed above.]

So why is this basic and sound rule of subjudice breaking down in such a systemic way now from both the prosecution and defence side of things (to the delight of Big Media helping to sell newspapers)? Because the political leadership of the country has allowed the principle to be corrupted selectively and that is a matter of accountability at AG Ruddock's door. The aghast AFP's Mick Kelty on AM yesterday who notes the unravelling legal norm might realistically be directing his criticism at the federal govt failure of political leadership in sustaining the sound legal administration of justice for nurturing  a culture of evidence leaks in sensitive cases for political gain.

We say it was inevitable defence lawyers of real mettle as Keim so obviously is, were going to take action sooner or later, and so it has happened. But the point is the corrupted legal culture under this federal govt.

Postscript #5 9am 19th July 07

Trioli show 702 is digging into this in the biggest city in Australia (Sydney).
Prefaced the interview with ex PM Fraser (Liberal), and Barry Jones ex MP (ALP),  but that outrage glosses the "operational" nature of the situation as regards evidence withheld from the Qld magistrate, including the 2nd transcript of interview with Dr Haneef.

As we write Prof Mark Findlay legal academic on criminology is the talent. He says in normal criminal trial such docs would be provided to the defence. [Sure, accepted.]
Findlay notes AFP/DPP refers to contempt of court, not national security strictures against publishing.
But what of the publication of the transcript? Interview not probitive of subjudice principle? Reference to both sides doing the wrong thing by Trioli, defence forced into the public arena suggests Findlay.
Bongiorno decision in Tamil case in Melbourne referred to as indicative of broader legal industry concern as to selective Big Media duress on the judicial decision making.

[reminds of family holidays as  14 year old in Casino NSW with the Bongiorno family - caught drinking out of the milk carton by Big Bernard! How embarrassing. Funny how you remember such things.]

[Chris Merritt legal editor at The Australian has front page today squarely challenged the principle of subjudice with this sentence "Do the authorities really believe that jurors are so stupid that they cannot tell the difference between a newspaper report and evidence that is tested in court?" In context this is explosive impertinence because The Australian has put contentious evidence into the public arena in deliberate attack on the subjudice legal reporting rule AO1. And probably News Ltd in particular have been doing so in various cases for the last 2 years.

It's a very serious and determined attack on the principle of subjudice we are witnessing here, done slyly for the prosecution till now in the last 2 years (says Rob Starry et al), and openly for the defence here in the Haneef case yesterday by agency of The Australian. Notice this allusion to the clash of judicial power and Big Media power i.e. 2nd (exec govt), 3rd (judiciary) versus 4th (media) estates also by Chris Merritt same article:

"the court of public opinion [in the Hicks Case] can sometimes be far more powerful than a court of law".

That's an allusion to bare faced trespass on the judicial constitutional power being excused by Merritt with it seems an axe to grind over the failure to put Hicks away forever. Strange times indeed.

A "sober" assessment would say subjudice is a good and valid public policy for legal administration. Trouble is its been selectively implemented and we are now in the swirling waters of a poisoned paradigm, law of the jungle extreme free speech. That's poor governance in my book. We need a treaty amongst the 2nd, 3rd and 4th estate and re establishment of the principle of subjudice or else its a crazy free for all of selective leaking of contentious evidence to sell newspapers. Where is the public interest indeed in feeding the Big Media meglomania during a trial?  




Further besides the tussle over the principle of subjudice itself, there is also a real tension in all this between the public Right to Know agenda of the Big Media and the national security interest in covert operational matters, as surely Merritt knows. Will we ever read the content of transcript #2 in the Haneef case, and should we, and when, if ever? A question of fine moral judgement balancing subjudice, operational covert investigations and public Right to Know. Whoa my brain hurts.

The Trioli spin doctors section has a commentator [Antony McLellan] that there is no contempt of court for publishing the transcript #1, but I hold my judgement on that. The ABC legal handbook is pretty categorical that once a person is charged its bare facts only as suitable for reportage. This bares far more authoritive legal analysis - for instance subjudice prevents a potential juror begging off saying 'I've read about this and its affected my thinking' to avoid jury duty.

And the idea a judge is not affected by Big Media is highly unconvincing. Sure judges are only supposed to take "judicial notice"  of very uncontroverisal general knowledge and ignore the rest. But they live such constrained lives my guess is they are voracious consumers of the quality media.

The Supreme Cout of NSW if memory serves is a client of Media Monitors based on my 2 years as a reader analyst there 2000-2001. That begs the question why such an interest in Big Media by the judges? Because they defend their power like all the others. 
( By the by, the client list of Media Monitors is commerical in confidence but we had to learn the client codes by heart like a foriegn language along with all the other institutional interests in society also represented. There must have been hundreds. The real proverbial Big Brother on life in Australia.)

Sean Carney interviewed from The Age notes Treasurer Costello has damaged Howard re personal bad relations, lack of economic respect for colleague PM Howard. BUT what it really significes is a deliberate distancing by Costello from Howard leadership consistently sinking in the polls, and building a post Howard career foundation.

Postscript #6 20th July 2007

Well what a wild legal reporting media politik ride this Haneef matter has become. Our traverse of the quality press does we agree show a dynamic democracy at work as per Dennis Shanahan's large comment piece in The Australian today.

It does also reflect a broad suspicioun of a rodent led federal govt prone to  'crying wolf ' as per the allusion of the Sydney Morning Herald editorial today.

Incredibly subjudice has been totally junked with front page story in The Australian testing and in fact convincingly junking the affidavit evidence of the AFP as to Haneef's character based on factual errors. To add salt to that injury to AFP/Immigration minister near fatally injured credibility, the ABC radio news have come over the top this morning via intrepid Raphael Epstein that Haneef's SIM card was not in the Glasgow bomb car at all though it was held by one of the arrestees.

All of this is subjudice contentious evidence that belongs in a court not in the general news but the case is being run through the media no doubt now. Indeed spilt milk, toothpaste out of the tube.

The Australian editorial bangs on about public interest (to sell more newspapers?) and then with grand impertinence calls for the transcript #2 (the one likely to be most revealing for Dr Haneef at his most fragile after more days of solitary) to also be released. No surprises there - sell more newspapers public interest or not.

So how "operational" in terms of national security is transcript #2? Or even future potential interogations? Shanahan above, seen as a strong ally of this federal govt, warns balancing national security concerns is serious and real.

We say as per the Herald reference to the federal govt seen as crying wolf, the power of that fable and metaphor is the general understanding that a wolf does exist. In this context, the Tube bombings happened. Madrid too. Bali. Others facing terrorism charges right here or even convicted.

(Why they do terrorism is another debate again. Many say ideological religion like Chris Hitchens in The Australian recently. We at SAM see a deeper concern allied to religion as an opiate for inequity and geo politik/economic grievances. Religion including extremism as psychological salve for damage done. We choose Gandhi's courageous peaceful protest to transcend that spiral of tit for tat violent damage. But we are not so naive to observe that in this world many don't.)

A great irony in the news today - the column by William Maley, an academic at ANU, is that he correctly criticises the reliance of Minister Andrews on an AFP summary for his visa deliberations rather than the original transcript which is intrinsically selective, but doesn't notice the publication on Wednesday last of the guts of the transcript #1 in the paper version of The Australian was itself arguably selective, especially given absence of ...transcript #2.

We say all the chest beating and self justifications, which are all fertile veins of Big Media coverage content filling the hungry 24 hour cycle (not least a platform for an expanded 4 page legal reportage empire of Chris Merritt every Friday now at The Oz, though to be fair no Haneef stories today there) are not probitive of the content of transcript #2. So again we say how operational is it? Should it be published at all? Voyeuristic curiousity and Big Media sales imperatives don't seem to me a safe way to run national security when the wolf is real (leaving open whether Dr Haneef is one of the innocent sheep or not).

And that is allowing for the criticism of Antony McClellan about hypocrisy of the authorities  (in The Media section yesterday of The Oz, also abc 702 Trioli spin doctors)  identifying AFP leaking for the govt/prosecution here, with info NOT provided to the Qld magistrate. Ouchy:

We write all of this, not fully ready to concede an absolute right to the presumption of innocence in the context of a terrorism threat, in anticipation of the Sydney leg of the APEC conference. Not for the world leaders of variable moral quality but for the street full of average citizens, the 18 year old uni student peacenicks, socialist agitators and labour activists, not least greenies, as well as average workers.  I don't want any of these to become another Madrid, or Tube slaying. Similarly if Dr Haneef is no more or less than one of these he has my vote too.
I look to a functioning democracy across all 4 estates free of selective politiking to accurately decide which. Indeed as an editorial of The Australian carries in a headline public safety trumps political opportunism everytime.
Postscript #7 [Press releases]
Thursday, 19 July 2007

Howard's double standards on judiciary

The Howard government is engaged in an unprincipled attack on the
judiciary, Greens Leader Bob Brown said today.

"The Howard government has changed the dividing line between the
judiciary and the parliament in an unforgivable way," Senator Brown

"The Howard government has condemned the granting of bail to Dr Haneef.
It has also attacked Dr Haneef's barrister, Stephen Keim SC, for
releasing transcripts of police interviews with Dr Haneef, but leaks
from the government in this case (and in a series of previous episodes,
such as the leaks against former ONA officer Andrew Wilkie) have been
welcomed with silence by the Prime Minister."

"The standard of public life is being eroded under this government, but
there are wider consequences. The vilification of Dr Haneef is damaging
Australia's standing in India and around the world."

"The Prime Minister is trading political advantage for national loss,"
Senator Brown said.

Further information: Ebony Bennett 0409 164 603

Detention of Dr Haneef has unravelled: Greens

20 July 2007

Continued detention of Dr Haneef has become untenable with revelations
that the case against him is falling apart, Australian Greens Attorney
General spokesperson Senator Kerry Nettle said today.

"The case against him appears to be unravelling at the seams," Senator
Nettle said.

"British police have revealed that the SIM card alleged to be owned by
Dr Haneef was found hundreds of kilometres away from the UK terrorist

"Minister Andrews should review his decision to cancel Dr Haneef's visa
particularly as it appears that the information he has used to do so is
flagrantly incorrect.

"Dr Haneef has maintained all along that he did not reside with any
terrorism suspects.

"At best this is a stuff up.

"Minister Andrews claimed he has cancelled Dr Haneef's visa and liberty
on police advice that he posed a threat to Australians. It's now clear
that the case against him does not appear to be objective or accurate.

"Minister Andrews must fix his mistake and return Dr Haneef's visa."
Senator Nettle  said.

More information Kristian Bolwell: 0411638320


Postsrcipt #8 early Monday 23rd July 07
Some things become apparent. Via David Marr at the SMH feature on the weekend that defence solicitor Peter Russo was at the interrogation of Dr Haneef for the unreleased transcript #2. We didn't realise this before and it tells us many things - Russo is maintaining his legal strategy of a full defence, he is participating in public meetings and general media. This tells us there is not much in transcript 2 versus the already released #1 of any incriminating nature.
Thus we saw the Saturday Telegraph hide the Haneef case back on p9 after the centre sports section, while the other press put it front and centre.
Similarly some nasty bogus "leaks" incriminating Haneef which have been repudiated by the defence as you might expect, but by the so called source - the senior levels of the Australian Federal Police, who reportedly (quality media abc tv, radio) have directly contacted the defence to say it rubbish and not from them. The story ran in the Sunday Mail in Brisbane with echoes in the sister paper of the Sydney Telegraph. Looks like a deliberate fraud on the public.
Now Premier Beattie is cranking on radio national abc as we write the failure of systemic governance around this determined breach of subjudice rules as promoted by the Howard govt lobby in the Big Media for cynical PR reasons.
And Howard loyalist Alexander Downer is on 702 news 7.50 am as we write attacking Beattie for 'doing the work of Rudd' which even if true doesn't change the logic of Beattie's critique - the political farce is bringing anti terrorism measures into disrepute and that is bad (that's right ear piece for one station (702), another radio for the other brand of abc (576 national), and typing too!).

Postscript # 9 July 29th 2007

Dr Haneef is free, charges dropped, work visa not renewed though, 60 Minutes has paid him for an interview to be broadcast tonight as per Sydney front page Sunday press today:



Posted by editor at 11:32 AM NZT
Updated: Sunday, 29 July 2007 9:13 PM NZT

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