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Adversarial to Inquisitorial: Reflections on the Criminal Justice System in Victoria, Australia (revised 1 October 2017).
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Contents.
1. A Largely Unwritten Constitution ...... 1
2. The Papal Justice System ...... 2
3. The Tribe...... 3
4. Regulation ...... 18
5. The Bag ...... 19
6. Escaping Regulation ...... 22
7. Due Process of the Law and the Summum Bonum ...... 25
8. Tribal Enforcers ...... 32
9. The Chief Examiner ...... 38
10. Arrest, Imprisonment and Bail ...... 40
11. Investigation ...... 40
12. Wives and Family ...... 41
13. Alibi Witnesses ...... 42
14. Indictment ...... 44
15. Speedy Trial ...... 46
16. Right to Counsel ...... 48
17. Trial-by-Jury ...... 50
18. The Chameleon Rule ...... 51
19. The Proviso ...... 52
20. Defendant Right of Discovery ...... 53
21. Trahison des clercs ...... 58
22. Adversarial to Inquisitorial ...... 62
Bibliography ...... 76
Appendix One. Judgment of the Full Court of the Supreme Court of Victoria ...... 99
Mark Alfred Clarkson, LL B, LL M, MPPM, MBA. The Queen v Clarkson & Others; Wight v Clarkson & Others (Unreported, Supreme Court of Victoria, Crockett, O’Bryan, and Tadgell JJ, 8 December 1986). Mark Alfred C l a r k s o n _ Adversarial to Inquisitorial P a g e | 1
1. A Largely Unwritten Constitution.
As for the other Australian States that are component parts of the Commonwealth of Australia confederated under the Australian Constitution,1 Victoria follows the United Kingdom model of a largely unwritten Constitution. Not all the powers and duties of the otherwise sovereign State of Victoria are committed to writing. The liberties and freedoms of Her Majesty’s subjects resident in the State of Victoria are largely dependent upon the conventions and customs that are expressed in the protocols that have built up over millennium. The will of the Legislature is expressed in those Statutes, Regulations and Rules that are specifically passed or empowered by legislation. There is no Constitutional protection for any of this legislation, which can be amended or repealed at any time. Its interpretation is the province of the Courts.
However, some Statutes are so central to that which defines Victoria, that they are regarded as written parts of the otherwise unwritten Constitution of the State of Victoria. These include the Constitution Act 1975 (Vic) and the other Statutes that constitute the Courts and the Parliament.2 These Acts are regarded as written parts of the otherwise unwritten Constitution of the State of Victoria, not because they cannot be amended or repealed, but because they are not amended or repealed very often, and then only slowly, and with a good deal of debate and trepidation.3 At least that is the theory. However, when Victoria repealed the centuries-old protection against double jeopardy,4 there appeared to be much ‘knee-jerk’ style haste, and not much evidence of debate or trepidation.5 Gone in a flash was what the High Court of Australia unanimously found was a rule ‘properly understood as a value which underpins the criminal law’.6
1 Commonwealth of Australia Constitution Act 1900 (Imp). 2 Including the Constitution (Appointments) Act 2009 (Vic); Constitution (Council Vacancies) Act 1984 (Vic); Constitution (Supreme Court) Act 1989 (Vic). 3 McCawley v R (1918) 26 CLR 9, 52 (Isaacs and Rich JJ). 4 Criminal Procedure Act 2009 (Vic), ch 7A—Limitations on rules relating to double jeopardy (inserted by No. 81/2011 s. 17). 5 Marilyn M McMahon, ‘Retrials of persons acquitted of indictable offences in England and Australia: Exceptions to the rule against double jeopardy’ (2014) 38 Criminal Law Journal 159, 163. 6 Bui v DPP (Cth) (2012) 244 CLR 638 (emphasis in original), following Pearce v The Queen (1998) 194 CLR 610, 614; see also Yuce Baykara, Acquitted with an Asterisk: Implementing the ‘New Double Jeopardy’ Exception into Canadian Law (Master of Laws Thesis, University of Toronto, 2012) 28-32.
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Other rights will also be gone in a flash, once Australia becomes a Republic,7 continuing the process of replacing rights, with Roman Catholic ‘values’8 and ‘doctrine’.9 The Irish Roman Catholic Republic of Australia. An Antipodean Erin – but like for other Islands to which émigrés are transplanted, once free of the cross-fertilization processes that continue to occur in their homeland – their distinctive character will become more concentrated – locked in a time-warp to 18th Century Ireland.
2. The Papal Justice System.
Merely observing that inquisitorial justice systems are features of civil law countries, such as France, Italy, Portugal, the Netherlands, Spain, Chile, Belgium, Luxembourg, and Romania is inadequate. Roman law, together with the Bible, is the basis of canon law, the legal system of the Roman Catholic Church.10 The origins of inquisitorial justice systems come from Roman Catholic Law and Doctrine,11 and persist in jurisdictions where the Roman Catholic Church has not quite relinquished its role as the adjudicator of morals, and proscriber of punishments. Those powers are no longer exclusively exercised by Roman Catholic Ecclesiastical Courts,12 but the de jure separation of these functions from Church to State, did not remove the substance and essence of the powers de facto that the Roman Catholic Church exercises, or the deep roots their modus operandi has in legal systems.13
The righteousness of ‘natural law’ persists as a concept,14 but one could be forgiven for assuming that evolutionary jurisprudence really does mean the survival of the fittest, despite
7 Allyson Horn, and Henry Belot, ‘Bill Shorten renews push for Australian republic, vows to hold referendum within first term of Labor government’ ABC News (online), 29 July 2017
P a g e | 2 Mark Alfred C l a r k s o n _ Adversarial to Inquisitorial P a g e | 3 urgings to the contrary.15 Nor has the assumption of justice powers by the State, removed the influence of the Roman Catholic Church from the process, which persists in most polities where the Roman Catholic Church has a presence.16 The reformation may have allowed States to rise, and take some powers from the Roman Catholic Church, but those States largely continued the application of Roman Catholic Law and Doctrine.17 The explanation of ‘why an authority that lacked the sinews of a state was able to orchestrate a centralised system of law’ is more complex. Indeed, D'Avray makes a convincing argument that it was the very complexity of legal systems that fuelled the need for papal law.18
This papal legal system transplanted into Victoria, Australia, depends upon the exercise of absolute power, untempered by any notion of human rights, which might impose limits upon the otherwise efficient, and immediate imposition of summary justice. Like for good Roman Catholics entering communion with a Priest, the supplicant criminal accused must fully and completely confess, and accept the punishments ordered – as if they were entering the confessional box – and must never complain if the system, like for the Priest, pulls their pants down and imposes wicked ways upon them. Few are ‘special people’ for whom some exceptions might be bargained.
3. The Tribe.
The history of Roman Catholicism in Victoria, Australia, is inextricably linked, but not limited to Irish immigration.19 Yes, there were Irish convicts,20 Fenians,21 and orphans from the Irish famine,22 but the Irish also came to Victoria seeking a better life, in pursuit of gold, land, and jobs.23 In the late 19th Century, Australia, and particularly Victoria, was seen by the Irish as a favourable destination, equal to California, and without the discrimination the Irish faced in
15 Haydn J Rigby, History Matters: A Survey of Ideas about Evolution in Western Legal Theory from Antiquity to the Present Day in order to Propound a Theory of Evolutionary Jurisprudence (Doctoral dissertation, Murdoch University, 2017) 8-13. 16 Jay P Corrin, ‘The English Catholic New Left and Liberation Theology’ (2017) 59 (1) Journal of Church and State 43. 17 Haydn J Rigby, above N 15, 91. 18 David D'Avray, ‘Stages of Papal Law’ (2017) 5 Journal of the British Academy 37, 47-55. 19 Edmund Campion, Australian Catholics (Viking, 1987). 20 Alan George Lewers Shaw, Convicts and the Colonies: A Study of Penal Transportation from Great Britain and Ireland to Australia and other parts of the British Empire (Melbourne University Press, 1977). 21 Keith Amos, The Fenians in Australia, 1865-1880 (UNSW Press, 1988). 22 Barefoot and Pregnant?: Irish Famine Orphans in Australia: Documents and Register. (Genealogical Society of Victoria, 1991). 23 Malcolm Campbell, ‘Ireland's furthest shores: Irish immigrant settlement in nineteenth-century California and Eastern Australia’ (2002) 71 (1) Pacific Historical Review 59; Neil Coughlan, ‘The coming of the Irish to Victoria’ (1965) 12 (45) Australian Historical Studies 68.
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Ireland, Britain, and the East Coast of the United States.24 Indeed, as Malcolm Campbell observes, while in California ‘the Irish were particularly complicit in the marginalization of the Chinese’,25 in Victoria the ill-feeling towards the Chinese that gathered strength during the gold rushes of the mid-1850s to early 1860s, provided the Irish with an issue on which to articulate their demand publicly for full participation in society, and allowed them to become ‘strongly positioned on the privileged side of the color bar that increasingly dominated Australian national life’.26 The Irish Roman Catholics must accept most of the responsibility for the fact ‘the Australian Constitution is founded on racism’.27 Acceptance of the Roman Catholic notion of ‘natural law’,28 does not extend to accepting that all people are created equal, before God, the law or otherwise. As is often the case with sexual abuse, the victims became the abusers.
The simmering racism, and Anti-Semitism that traditionally infects both the Irish,29 and Roman Catholics,30 has always laid uncomfortably with Australian Labor Party (ALP) support for Israel, but that was addressed in June 2017, when the ALP committed to a recognition of Palestine.31 This might be attributed to the influence of immigrants in ALP safe-seats – the Muslims, Maronite-Catholic, Melkite-Catholic, Roman Catholic Vietnamese, and Roman Catholic Filipinos – none of whom greatly like Jews, or are ever likely to become stanch supporters of Israel.32
However, despite the Australian ethnic mix, the traditional simmering Australian racism remains an important factor in the Australian attitudes to immigration, and underpins refugee
24 Malcolm Campbell, ‘The other immigrants: comparing the Irish in Australia and the United States’ (1995) 14 (3) Journal of American Ethnic History 3; David Noel Doyle, ‘The Irish in Australia and the United States: Some Comparisons, 1800–1939’ (1989) 16 (1) Irish Economic and Social History 73. 25 Malcolm Campbell, above N 23, 89. 26 Ibid. 27 Frank Brennan AO, Legislating Liberty: A Bill of Rights for Australia? (University of Queensland Press, 1998) 25. 28 Marske, Kofron, and Vago, above N 14. 29 Ben Cohen, ‘Irish Journalist Behind Antisemitic Sunday Times Article Unmasked as Holocaust Denier’, Algemeiner (online), 30 July 2017
P a g e | 4 Mark Alfred C l a r k s o n _ Adversarial to Inquisitorial P a g e | 5 policy.33 While Australia, signed the 1951 Refugee Convention,34 and adopted the 1967 Protocol,35 without specific local legislation, International Instruments are not considered part of Australian Domestic Law.36 The present Australian position formulated by the Howard coalition government, has persisted through the Rudd/Gillard/Rudd Labor governments, and the later Abbott/Turnbull coalition. It is not an inaccurate conspectus to note that whilst Australia executed International Instruments related to refugees, it would not do so now, if it was able to revisit that decision, 37 and in the meanwhile will simply continue to largely ignore its obligations under them.38
In the late 19th Century, the positioning, and power of the Irish within Victoria, was assisted as ‘numbers of Irish-born lawyers, doctors, and academics, mostly graduates of Trinity College, Dublin, achieved positions of status and privilege within Melbourne society’.39 The seeds of a Tammany Hall style political machine,40 were sown in Victoria.41 Irish Roman Catholic tribalism, imported from Ireland into Victoria became the conduit to combine sets of contradictory objectives. The Irish saw themselves not only as a group which was socially disadvantaged, but as an outpost of Erin, which had endured centuries of English cruelty, and believed this institutionalised oppression continued against them in colonial Australia. ‘Irish’ and ‘Roman Catholic’ became tautological concepts in colonial Australia. The Roman Catholic Church became the focus of Irish identity and culture, and a political vehicle to gain and bargain
33 James Jupp, ‘Religion and integration in a multifaith society’ in Multiculturalism and integration: A Harmonious Relationship. (ANU ePress, 2011) 135-150 34 Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137; [1954] ATS 5 (entered into force 22 April 1954). 35 Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267; [1973] ATS 37 (entered into force 4 October 1967). 36 Bradley v Commonwealth (1973) 128 CLR 557, 582; Dietrich v The Queen (‘Dietrich’) (1992) 177 CLR 292, 391; Minister for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273, 287. 37 Adrienne Millbank, 'The Problem with the 1951 Refugee Convention' (Research Paper 5 2000-01, Australian Parliamentary Library, 5 September 2000)
P a g e | 5 Mark Alfred C l a r k s o n _ Adversarial to Inquisitorial P a g e | 6 for social gains. The Roman Catholic school was a refuge created as protection against the hostile environment for Irish Roman Catholics. Education was the only practical vehicle available to redress their injustices through 'upward social mobility'. However, Roman Catholic education allowed many Roman Catholics to enter the very society from which the Roman Catholic school was supposed to shield their young – the Anglo-Protestant establishment. Irish Roman Catholic aspirants wanted more to join that hegemonic group and to enjoy its fruits, than to change or challenge it.42
In Australia, the power base of the Irish Roman Catholics remains the Australian Labor Party (‘ALP’). Concentrated in unskilled labouring occupations, they accounted for over 25% of the immigrant population in 1891, when the ALP was formed. Irish distinctiveness was accentuated by religious difference, with up to 90% being Roman Catholic. 43 However, the 1955 split with the Communists in the ALP, led to the formation of the Roman Catholic dominated Democratic Labor Party (‘DLP’), and ‘at the federal level, and in the state of Victoria, the existence of the DLP was a major factor preventing the election of ALP governments for 23 and 27 years respectively’.44 Reconciliation was effected in the early 1970s,45 and in the aftermath of the Whitlam Labor Federal election victory in 1972, ‘the DLP imploded’.46
Irish Roman Catholics had gained complete access into Anglo-Protestant establishment, and perhaps ascendency over it, when in 1996 Irish Roman Catholics controlled the three most important posts in Australia. ‘Paul Keating became Prime Minister, The Right Honourable Sir William Deane AC, KBE, QC was Governor-General, and The Honourable Sir Gerard Brennan AC KBE QC, Chief Justice of the High Court of Australia’.47 Remaining was the feeling that all the historic wrongs perpetrated against the Irish, and Roman Catholicism over millennia, could and should be corrected in Australia. From Cromwell’s victories in conquest over the Irish Roman Catholics in Ireland,48 to injustices visited upon Roman Catholics after the succession of the ‘orange’ William and Mary,49 old battles could now be refought, and the Protestant ideological and legal victories in the United Kingdom, could be reversed in Australia.
42 Denis McLaughlin, ‘The dialectic of Australian Catholic education’ in Helen Johnson (ed) Reflecting on Faith Schools: A Contemporary Project and Practice in a Multi-Cultural Society (Routledge, 2013) 101, 103. 43 Ray Markey, ‘An antipodean phenomenon: Comparing the labo (u) r party in New Zealand and Australia’ (2008) Labour History 69, 76. 44 Ibid, 86. 45 Ibid, 45-51. 46 Barry Jones, Coming to the Party: Where to Next for Labor? (Melbourne University Publishing, 2006) 5. 47 Denis McLaughlin, above N 42, 103. 48 Micheál Ó Siochrú, God's executioner: Oliver Cromwell and the conquest of Ireland (Faber & Faber, 2008). 49 Mark R Royce, ‘The Protestant Supranationalism of Britain’ in The Political Theology of European Integration (Palgrave Macmillan, 2017) 207.
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Commensurate with these tribal objectives, from at least 1995, when The Honourable Sir Gerard Brennan AC KBE QC was appointed by the Keating Labor government as Chief Justice of the High Court of Australia,50 the ‘Brennan Court’51 appeared to adopt a policy or doctrine that the Courts of Appeal of the States should largely be the final avenue of appeal in criminal matters, and that the High Court should not interfere with their decisions. This doctrine has been successfully implemented, with the High Court of Australia now only hearing and determining a handful of criminal cases each year. Indeed, the High Court has not heard a significant human rights case since 1992, when Dietrich v The Queen (‘Dietrich’),52 was decided. In 2016-2017:
Of the seventeen appeals, seven (41.18%) were dismissed. However, if the successful Crown appeals are counted as if they were appeals by accused persons being dismissed, the aggregate ‘victories’ for the Crown grows to twelve (70.59%). Two verdicts of acquittal were entered, both in sexual offences (11.76%). Three new trials were ordered (17.65%). In one case, the appeal was allowed and the matter remitted for determination (5.88%). There were two very high-profile cases, Baden-Clay and Robert Hughes. Both lost their appeals.53
The Baden-Clay matter is worthy of additional observations. The murder conviction at trial was overturned by the Queensland Court of Appeal, and a manslaughter verdict entered in substitution. There was a large public outcry, mainly led by the ALP. The victim was a close personal friend of Chloe Shorten, the wife of the Leader of the Opposition, ‘and shared community outrage when Gerard Baden-Clay’s murder conviction was downgraded to manslaughter’.54 By quashing the decision of the Queensland Court of Appeal and re-establishing the murder conviction,55 the High Court of Australia delivered a judgment pitched ad captandum vulgus showing that they are not immune to ‘lynch-mob’ sentiments, or satisfying tribal demands for ‘justice’. The tribe wanted to ‘get’ Baden-Clay, and got him they did. Such is the power of the tribe.
50 High Court of Australia, Former Chief Justices: Sir (Francis) Gerard Brennan AC KBE QC (2010)
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Neal Blewett, AC, ALP member of the Australian House of Representatives is reported as describing caucus factions of the ALP as ‘clans or tribes, grouped around factional leaders, with long histories of internal political cooperation, rather than ideological groupings’. Their leaders ‘had to pay obeisance to certain shibboleths … But provided the leaders could secure offices and perks for members of the tribe, the tribe would acquiesce in most ideological accommodations reached by the leaders of the factions’.56 An ALP sub-tribe, or ‘faction’ was formed called ‘the Participants’, whose membership included ALP luminaries and fellow-Victorians John Button, Race Mathews, Richard McGarvie, Francis Xavier Costigan, (Francis) Xavier Connor, Barry Jones, John Cain Jnr, Clyde Cameron, Tom Burns and Mick Young.
The Participants came from the Victorian Fabian Society,57 a force operating within the Victorian branch of the ALP, but with membership, significance and influence that stretched well beyond Victorian borders. 58 The Participants facilitated the reconciliation of the ALP, and DLP that enabled the Whitlam electoral victory,59 and which on one view was the complete victory of the Irish Roman Catholic DLP over the Communist ALP. All the Participants later enjoyed roles in high public office, as Victorian Premier (John Cain Jnr); Deputy Premier Queensland (Tom Burns); Ministers of the Commonwealth (John Button, Clyde Cameron, Mick Young, Barry Jones); State Ministers (Race Mathews, Barry Jones); Royal Commissioner (Frank Costigan); and Judges (F Xavier Connor, Federal Court of Australia; Richard McGarvie, Supreme Court of Victoria– later Governor of Victoria). Such is the power of the tribe.
Not all the members of the extended ALP tribe, and its sub-tribes are Irish, or even Roman Catholic. However, the extended ALP tribe dominates the legal establishment, and those with other political and religious allegiances need to make accommodations with the tribe. The common Weltanschauung may be where Roman Catholic social teaching, Fabian socialism, and Green/Left thinking are not in immediate conflict, or the tribal members see some advantage in solidarity, or people are simply trading favours.
56 Michelle Grattan, ‘Caucus and the factions’, in John Faulkner and Stuart Macintyre (eds), True Believers: The Story of the Federal Parliamentary Labor Party (Allen and Unwin, Sydney, 2001), 260. 57 Australian Fabians Inc, About us, (2017)
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The Honourable Alastair Bothwick Nicholson, AO, RFD, QC comes from a background that would not immediately place him in the extended ALP tribe. Nicholson was born in 1938 in Melbourne returning with his mother Jean to Papua New Guinea, at that time an Australian territory, where his parents owned a rubber and coconut plantation. He was educated at Scotch College Melbourne where he was a boarder, and studied law at the University of Melbourne. He was admitted as a legal practitioner in Victoria in 1961, and joined the Victorian Bar in 1963. He was appointed Queen's Counsel in 1979 and was a Justice of the Supreme Court of Victoria between 1982 and 1988.60
However, when the ALP government in Victoria headed by John Cain Jnr faced a legal challenge to the appointment by ‘executive decree’ of a liquidator to the Athena Permanent Building Society (‘Athena’) without first giving Athena the right to be heard, or obtaining a court order, Nicholson J dismissed the action, thereby adding an imprimatur to executive action otherwise of questionable legality.61 The audi alteram partem rule of antiquity was swept aside. An appeal manqué was cauterised by having the Athena directors arrested on the steps of the Supreme Court of Victoria, and imprisoned. The main protagonist held thereafter for years without bail, trial or other relief. The Costigan Royal Commission investigated the matter and found in ‘Secret Volume 8’ of its reports that the actions of Nicholson J were lawful, and indeed righteous – for the main protagonist was a criminal (albeit not convicted of any offences). Of course, no input from any accused person was sought, or required. The ‘evidence’ was taken, and deliberations were conducted à huis clos, but the Costigan Commission ‘judgments’ were thrown to the Reptiles of the Press to be disseminated to the populace ad captandum vulgus.
The trial in the Supreme Court of Victoria prosecuted by the Costigan Commission team, was conducted in the third year of the imprisonment of the main protagonist, who unrepresented by Counsel appeared-in-person. The prosecution was assisted by the decision of trial Judge, the Honourable Mr Justice George Hampel, AM QC, to stretch the hitherto known boundaries of the law of theft to envelop the matter. The complaint that after the criminal charges were preferred ‘Costigan conducted enquiries into the same matters and he or his officers interviewed a large number of witnesses who later did or might have given evidence at the trial’, and that these actions by a Royal Commissioner ‘led to or amounted to an interference with the proper course of justice’ failed to persuade Grey J in June 1986 to order the Victorian Attorney-General
60 Wikipedia, Alastair Nicholson, (29 June 2017)
P a g e | 9 Mark Alfred C l a r k s o n _ Adversarial to Inquisitorial P a g e | 10 to disclose any such material in his possession or power.62 The Full Court the month before the criminal appeal found that due process was not a proper foundation for an order for discovery of documents. Despite extensive written submissions, they did not appear to understand what due process meant. Judges are not appointed for their high intelligence quotas or based on the depth of their legal scholarship. The Full Court found that ‘the production of the documents referred to is [not] necessary for the purpose of supporting the appeal or … in any way relevant to those proceedings’.63 This demonstrated the stark contrast between procedures in criminal matters, and those followed in civil actions. The vices flowing from the lack of Defendant Discovery in criminal proceedings are discussed in more depth hereunder. Despite the ancient prohibition on the machinations of the auto-da-fé and Star Chamber intruding into ‘normal’ criminal processes and procedures, preserved in Victoria by those Imperial Acts transcribed in the Imperial Acts Application Act 1980 (Vic), trial by Royal Commission was once again mandated. The Supreme Court of Victoria showed a great reluctance to tackle the excesses of Costigan.
The criminal appeal in the fifth year of the imprisonment of the main protagonist proceeded in August 1986 before the same Full Court who refused the order for discovery in July 1986 in the absence of the otherwise unrepresented appellant. Douglas Raymond Meagher, One of Her Majesty’s Counsel, the Senior Counsel assisting the Costigan Commission, who led the prosecution at trial, was asked by the Full Court of the Supreme Court of Victoria, sitting as the Court of Appeal if there were any appeal points that should be considered. The new law of theft formulated by Hampel J was mentioned, but the appeal quickly dismissed.64 An application to the High Court of Australia for special leave to appeal was refused on the papers in the absence of the unrepresented appellant. The appeal rights in Australian were then exhausted.
The liquidation of Athena had rendered worthless the ‘A’ class shares that conveyed the management rights to Athena, on which Westpac Banking Corporation (‘Westpac’) had secured an advance to buy them. Westpac then claimed that the Bank Bills held in safe keeping for Athena, were security for the advance. On the back of the criminal proceedings, the Crown, the Athena liquidator, and Westpac made an application for money awards against the main
62 In the matter of an application for a writ of Mandamus by Mark Alfred Clarkson, directed to James Harley Kennan, Her Majesty's Attorney-General for the State of Victoria (Unreported, Supreme Court of Victoria, Grey J, 13 June 1986) 1-5. 63 The Queen v Clarkson (Unreported, Supreme Court of Victoria, Young CJ, Crockett, and Grey JJ, 18 July 1986) 2. 64 R v Lyon & Clarkson [1986] 24 A Crim R 54.
P a g e | 10 Mark Alfred C l a r k s o n _ Adversarial to Inquisitorial P a g e | 11 protagonist totalling $2 million to cover the initial Westpac advance, the funds said to have been stolen (being the bank bills Westpac now claimed as security), the $485,000.00 paid to the Liquidators of Athena, interest and costs. The learned Trial Judge refused to make these orders finding that the involvement of Westpac, and the actions of Senior Westpac Officers as disclosed in the evidence led at trial by the Crown showed that it was not an appropriate case in which to make the orders sought.65 The Crown, Liquidator and Westpac appealed, but at the appeal reduced the claim to $1,046,183.00.66
The Full Court appeal against the refusal by the Trial Judge to order money damages against the accused was heard in December 1986 by a Full Court constituted by different Judges from those who dismissed the application for discovery of documents in July 1986, and heard the ex parte Criminal Appeal in August 1986. This second Full Court upheld the decision of the learned Trial Judge finding that he was in a pre-eminent position to decide the matter of money damages in criminal proceedings, and that they would not interfere in the absence of demonstrable error.67 (The judgment apparently ‘lost’ from the Supreme Court archives, is reproduced in Appendix One hereto). The judgment of this second Full Court appears to indicate that they were not altogether entirely comfortable with the approach to the matter taken by the Crown, Costigan Commission, Liquidator and Westpac, or the methodology they employed – the totality of the proceedings showing a largely successful scheme to use the criminal process and the imprisonment of the main protagonist, as a ‘big stick’ to cauterise the various civil proceedings on foot in the Supreme Court of Victoria, which predated the criminal charges.68 There can also be discerned the first faint glimmer of realisation by this second Full Court that the Crown, Costigan Commission, Liquidator and Westpac were acting in concert. This should not have come as a great surprise. Meagher had previously downplayed the relationship saying that it did not matter that the ‘power and prestige’ of Westpac had been brought to bear on the criminal proceedings, because they would be decided only on their merits. The matters were thereafter called the ‘Athena-Westpac’ matters.69
Having failed in the attempts to win money damages in the criminal arena, the Crown, Costigan Commission, Liquidator and Westpac did not bring fresh proceedings in the civil arena seeking
65 The Queen v Clarkson & Others; Wight v Clarkson & Others (Unreported, Supreme Court of Victoria, Crockett, O’Bryan, and Tadgell JJ, 8 December 1986) 3 (Appendix One). 66 Ibid. 67 Ibid, 7-8. 68 Ibid, 5-7. 69 The description adopted by the Full Court in Clarkson -v- Director-General of Corrections [1986] VR 425.
P a g e | 11 Mark Alfred C l a r k s o n _ Adversarial to Inquisitorial P a g e | 12 damages. The criminal charges enabled the Crown, Costigan Commission, Liquidator and Westpac to control the information disclosed to the Court, putting forward only evidence tailored to secure convictions, and preventing any inconvenient documents being disclosed that might undermine their case. They might not have been able to control the proceedings to the same extent in the civil arena. However, despite any misgivings the second Full Court may have felt, the severe term of imprisonment imposed on the main protagonist, and the dismissal of all criminal appeals effectively cauterised any questions that might otherwise have arisen. The liquidators sold the assets of Athena (deducting their not inconsiderable fees and disbursements). Westpac kept the proceeds of the ‘crime’ to repay the loan secured to purchase the management rights, and the victory of the tribe was complete.
The investigations of the Costigan Royal Commission were keenly followed by the media. Extracts of the Costigan Royal Commission ‘Secret’ Final Reports were leaked to The National Times and The Sunday Observer and published. Francis Xavier Costigan ‘believed passionately that one of the best weapons against organised crime was public exposure. And expose he did’.70 This methodology was then a cause célèbre actively championed by the Roman Catholic Church. The Costigan Commission enjoyed the publicly expressed patronage and support of His Eminence Cardinal Dr George Pell – now facing sex abuse charges, and somewhat ironically demanding for himself the full measure of due process of the law.71 No one ever did discover who leaked material from the Costigan Commission to the press – but no one was looking too hard. Michael Eugene Costigan, the twin Brother of Francis Xavier Costigan worked for The Sunday Observer.
The notion advanced by the Victorian Labor government, led by tribal leader John Cain Jnr, and approved by Nicholson J, that the executed always have the capacity to challenge decisions after the event, and persuade the tribe that it should not have acted summarily is the antithesis of the concept of due process – but as shown below due process is a foreign notion that does not mean in Australia what it means in the United States. Tribal power is enhanced by the fact that it is always more difficult for the executed to rally resources for a fight post mortem. The capacity to ‘shoot first and ask questions later’ usually means that the answers are given by those doing the shooting, rather than by those who were shot. The summary imposition of
70 Mike Smith, ‘Costigan: patron saint of investigative journalists’ Crikey (online), 15 April 2009
P a g e | 12 Mark Alfred C l a r k s o n _ Adversarial to Inquisitorial P a g e | 13 imprisonment followed by a public outpouring of righteousness is a much more efficient methodology for the disposal of those the tribe considers inconvenient, than trials conducted according to the due process of the law in Courts. For its veracity, the auto-da-fé relies on faith, and decries procedures encumbering its powers. In its shadows, much injustice is obfuscated.
Nicholson was thereafter appointed Chief Justice of the Family Court of Australia by the Hawke Labor Government. Other honours followed. An Officer of the Order of Australia; Judge Advocate General of the Australian Defence Force (1987-1992), and a promotion to the rank of air vice marshal; an Honorary Professorial Fellow of the University of Melbourne; Chair of the National Centre Against Bullying; founding patron and Chair of Children's Rights International; and patron of International Social Service Australia.72 The ALP tribe smile upon their friends. No doubt Nicholson has the capacity to inculcate many succeeding generations of law students in the ways of the tribe.
Many post World War II Jewish immigrants to Victoria joined the legal profession. Politically, Jewish émigrés were left-leaning, opposed to Fascism,73 with many supporting the Communist Part of Australia.74 However, there were also Yiddish-speaking Polish Jewish refugees that detested Communism, and supported the ALP.75 The latter quickly established a firm presence at the Victorian bar, despite first needing to learn English. Save for more recent developments in civil liability law suits, Barristers seldom work for success-only fees. Most of those at the bar would starve to death if paid only on success. Barristers get paid for effort, but most put surprisingly little effort into criminal law matters.
The farewell tribute to his cousin, the departing Chief Judge of the County Court of Victoria, Michael Rozenes AO, QC, by the Honourable George Hampel AM, QC makes interesting reading. It discloses that Jewish immigrants quickly rose to the heights of the legal profession in Victoria.76 The article leaves the impression that many a ‘short plea for a reasonable fee’,77 at country court houses, with return journeys by sports car punctuated by light lunches,78 to complete a day’s work, provided a very comfortable life style for Jewish émigré Counsel, unrelated to the fate of the clients for whom they acted. Jewish immigrants embraced, rather
72 Wikipedia, above N 60. 73 Phillip Mendes, Jews and the Left: The Rise and Fall of a Political Alliance (Springer, 2014) 175-176. 74 Ibid. 75 Ibid. 76 The Honourable George Hampel AM QC, ‘A reflection on the Hon Michael Rozenes AO QC’ (2015/16) 158 Victorian Bar News 50. 77 Ibid, 50. 78 Ibid.
P a g e | 13 Mark Alfred C l a r k s o n _ Adversarial to Inquisitorial P a g e | 14 than challenged the legal framework under which they prospered. There is much money to be made ‘going with the flow’. The Summum bonum (dealt with hereunder) is now labelled as of Judeo-Christian origin, rather than merely of Roman Catholic Law and Doctrine.79 Jews are now firmly part of the tribe. Many honours have also been bestowed upon Hampel since the victory of the tribe in the Athena Case, and his relationship with the tribe has protected his children from the consequences that might otherwise have been bestowed upon them in their troubled journey through their lives.80
The Honourable Mr Justice Lex Lasry,81 of the Supreme Court of Victoria, comes from a Jewish family proselytized into the Protestant faith, whose Father was a Solicitor, living and practicing in Melbourne’s wealthy Eastern Suburbs.82 Lasry had a privileged upbringing, and schooling,83 but Lasry’s judgments, some of which are dealt with hereunder, his speeches,84 and his Tweets,85 show that he has firmly embraced the Summum bonum, and the causes célèbre of the Green/Left to become a fully inducted member of the ALP tribe, despite some early difficulties.86 Indeed on one view, Lasry would never have been permitted to return from exile in Canberra, where he persisted for some time at the bar,87 to accept the appointment to the Victoria Supreme Court bench, unless he first embraced the Green/Left Weltanschauung,88 and he did so much want to be appointed, apparently enjoying his role as a Judge, almost as much as playing in his ‘boy band’, Lex Pistols.89 Such is the power of the tribe.
79 Jeremy Gans, ‘Charter not applied again!’ on Jeremy Gans, Charterblog: Analysis of Victoria’s Charter of Human Rights (11 November 2008)
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One of ‘the Participants’, The Honourable Dr Race Matthews is said not to be Roman Catholic, but agnostic. However, his book Of Labour and Liberty, Distributism in Victoria 1891-1966,90 was originally written as a doctorate in theology thesis for Roman Catholic Theological College, Melbourne, and the University of Divinity, Melbourne.91 The Communist push against Capitalism has been replaced with new players. Socialists are the new Communists, and they fight the new enemy – ‘distributism’. Matthews details the role of Roman Catholic ‘social activism’, and the Fabian Society, in the development of Roman Catholic critiques of capitalism, and proposals to develop an economy with widespread ownership and participation by workers in the management of their industries and workplaces, to offer a humane and sustainable economy, empowering communities consciously to take charge of their own destinies – a new form of Communism acceptable to the Roman Catholic Church, and posited as community-embracing, green orientated, environmentally friendly, kind, and nice – as long as you do as you are told.
Dr Anne Ferguson, a Solicitor, was appointed a Justice of the Supreme Court of Victoria on 4 May 2010, and quickly elevated to Justice of Appeal on 12 August 2014.92 The Honourable Justice of Appeal, Dr Anne Ferguson was appointed Chief Justice of the Supreme Court of Victoria, effective from 2 October 2017.93 Dr Ferguson was educated at the Brigidine Sisters’ Killester College in Springvale where she was academic Dux. She studied Arts and Law at Monash University, winning the Supreme Court Prize as the top student in her graduating class.94 Monash is the base of the Honourable Dr Race Matthews, Secretary of the Australian Fabian Society,95 and the Honourable George Hampel AM, QC,96 – both bulwark members of the Victorian Labor tribe. Awarded a Commonwealth Scholarship for study in the United Kingdom, in 1989, Dr Ferguson graduated with a Doctor of Philosophy in Law from the University of Southampton, penning a thesis on ‘Unfair Contracts’.97
90 The Honourable Dr Race Mathews, Of Labour & Liberty: Distributism in Victoria 1891-1966 (Monash Publishing, 2017). 91 Stefan Gigacz, ‘Book review: Race Mathews’ fascination with the rise and fall of Distributism in Victoria’, The Catholic Weekly (online), 20 April 2017
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The Roman Catholic Orders, the Brigidine Sisters and the Presentation Sisters journeyed from Ireland to Australia in the 1880’s. This led to the establishment of numerous primary and secondary schools across Australia. In 2014, the Brigidine Sisters established the Kildare Ministries in Australia, a Public Juridic Person, with canonical and civil governance responsibilities for educational services and community works. With much shared history and ‘inspired by the same Gospel values of justice, compassion, hope, courage and wonder’, the Presentation Sisters Victoria have entrusted the governance of several school and community works to Kildare Ministries.98
As a solicitor, at the firm Allens Arthur Robinson,99 where she was a partner, Dr Ferguson worked on some of Australia’s highest profile corporate cases, including the Opes Prime collapse and the Pyramid Building Society court case,100 the latter under the Costigan Commission Senior Counsel, Douglas Raymond Meagher, One of Her Majesty’s Counsel.
Surprisingly active in matters Roman Catholic, despite the prospect of a trial on sex abuse charges,101 His Eminence Cardinal Dr George Pell was apparently consulted on the appointment of The Honourable Chief Justice Dr Anne Ferguson, and approved the appointment. It may not have occurred with this imprimatur. Of course, this may have nothing to do with any forthcoming application by His Eminence to permanently stay the sex abuse proceedings on the grounds it would be ‘oppressive and an abuse of process’ – given the antiquity of the events and the fading memories of witnesses manqué.102
Nothing is published on the personal life of The Honourable Chief Justice Dr Anne Ferguson. No mention of a Husband or Partner (of either sex), family or children. In the ways of the tribe, this silence is more likely to mean she is a Lesbian, rather than a Nun. Au contraire: of course, she may be happily married to a man, and have many children to contribute to the tribe. (Everyone has an itch – someone must be scratching it).
98 Brigidine Sisters, Education (2015)
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In any event, The Honourable Chief Justice Dr Anne Ferguson is a blue-blood Irish Roman Catholic Margravess – Princess of Rome, and no doubt well inculcated in the ways of the tribe, and the effectiveness of the Summum bonum – the ‘no rights are absolute’ and the ‘basket of evils’,103 weighing everything to decide where the greater good of the tribe lays – the twin seeds of corruption, and the twin tools of tyranny.
In a tribal society, life is determined almost in its entirety by social and religious taboos. Not only does everyone know his place, but ‘everyone feels that his place is the proper, the “natural” place, assigned to him by the forces which rule the world’ (citations omitted).104 There are very few problems engaging moral responsibility in such a society. Occasionally, an individual may be called upon to act heroically, but ‘he will rarely find himself in the position of doubting how he ought to act’.105 Rules, roles and customs are not viewed as conventions, which may be questioned or changed. In the magical attitudes that characterise a primitive tribal society, the laws of the society ‘are felt to be as inevitable as the rising of the sun, or the cycle of the seasons, or similar obvious regularities of nature’.106
There is no room in the tribe for individual integrity. The only ‘greater good’ observed is the greater good of the tribe, and its participants. There is no place for dissent. There is no tolerance of ‘whistle-blowers’ who might cause a wider scrutiny of the objectives, and the methodology of tribal solidary that the tribe mandates. In Australia, whistle-blowers are ostracised and hunted down.107 Tribal cohesiveness depends upon the absolute nature of the exercise of tribal power. Any notion of human rights, or of civil rights takes absolute power away from the tribe, and makes less certain its capacity to exact immediate, and overwhelming punitive reprisals against anyone contesting its authority. However, the tribe always can (and does) make exceptions from its otherwise overwhelming grasp for ‘special people’. Those spared (and their sponsors) incur a debt to the tribe, which increases the power of the tribe, and the ‘favour’ can later be called-in. Bargaining for these accommodations would be less frequent, if human rights were more universal and the tribe accordingly had less power. Victoria is ruled by a savage war-like tribe.
103 The Honourable Murray Gleeson AO QC, above N 8. 104 Jeremy Waldron, ‘Tribalism and the Myth of the Framework’, in Jeremy Waldron, Philip Catton, and Graham Macdonald (eds) Karl Popper: Critical Appraisals (Routledge, 2004), 207. 105 Ibid. 106 Ibid. 107 Neville Tiffen, ‘Opinion: Corporate Australia, you need whistleblowers’, (2016) 32 (5) Company Director 48; Nick McKenzie, Michael Bachelard, and Richard Baker, ‘Americans pay millions to whistleblower at BHP; we hound them out of their jobs’, The Sydney Morning Herald (online), 28 August 2016
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4. Regulation.
All encompassing, all enveloping regulation offers many advantages to those doing the regulating. Successive waves of regulation in Victoria, Australia, have given rise to the belief that the State Motto might be: ‘No facet of life knowingly left unregulated’. Once everything is regulated, everyone comes under the power of the regulators. Nothing can happen, unless first permitted. To obtain permission, an application must be made to the relevant authority. To understand what is required in the application, lawyers must be instructed, and sometimes Counsel briefed. To support the application, reports extolling the virtues of the application must be obtained from experts.
The application must be opposed by a ‘proper contradictor’,108 so that the relevant authority can properly consider the position au contraire. To understand what is required of the opposing case, lawyers must be instructed, and sometimes Counsel briefed. To support the opposing case, reports extolling the vices of the application must be obtained from experts. The decision-making process must be seen to be opaque, and often written submissions is support of the application, and the position au contraire, will need to be supported by submissions viva voce.
Once a decision on the application is rendered, there must be a process for appeal or review. To understand what is required for the appeal or review, lawyers must be instructed, and sometimes Counsel briefed. To support the appeal or review, further reports extolling the virtues of the application must be obtained from experts. To understand what is required to oppose the appeal or review, lawyers must be instructed, and sometimes Counsel briefed. To support the opposing of the appeal or review, further reports extolling the vices of the application must be obtained from experts.
Regulation is not merely an exercise in control. It spawns and feeds many industries, and provides a nice life for those not wishing to lift heavy things for a living, and who might otherwise be unemployable. The criminal justice system is just one facet of regulation, albeit with its own special rules and procedures. There are lower standards applied in the conduct of
108 NSW Government Department of Justice, ‘Requests for the intervention of the Attorney General in court or tribunal proceedings’ (Fact Sheet, July 2014) 2
P a g e | 18 Mark Alfred C l a r k s o n _ Adversarial to Inquisitorial P a g e | 19 criminal proceedings that would never be tolerated in civil proceedings. Criminal justice is imposed vi et armis, with a level of ferocity somewhat related to the offences proscribed, but more importantly determined by the station-in-life of the accused.
A deep-seated Australian mind-set is that no one should ever get anything for nothing. Not even their liberty. They must pay. There must always be penalties for those who decide not to be regulated. The penalties can be monetary, or incarceration. The Federal and State police provide the physical enforcement of regulation. Like for all other forms of regulation, to escape the physical restraint of regulation, an application must be made. In Victoria, like for other Australian polities, all offences against Federal laws are prosecuted in States Courts,109 and Federal prisoners are held in State jails.110 Those applications must be made to State Courts, exercising Commonwealth and/or State jurisdiction.
5. The Bag.
When looking at the way Australians conduct commercial affairs on the international stage, observers might be forgiven for thinking that the Summum bonum – ‘the end justifies the means’ was deeply embedded in Australian culture. The Reserve Bank of Australia and Australian Wheat Board payments to the Iraqi regime of Saddam Hussein Abd al-Majid al-Tikriti,111 and the other ‘facilitation payments’ made by the Reserve Bank of Australia to win banknote printing contracts in Malaysia, Indonesia, and Vietnam,112 suggest that Australians (in conduct sanctioned by the state) will do and use any and every means to achieve international trade ambitions. However, the mind-set is not limited to international matters, or only to matter sanctioned by the state.
The ways Australians conduct domestic commercial affairs, particularly in the building and construction industries, were highlighted by the Heydon Royal Commission.113 Perhaps, the Heydon Royal Commission merely disclosed that which Australians always knew, but were
109 Judiciary Act 1903 (Cth) s 68. 110 Commonwealth of Australia Constitution Act 1900 (Imp) s 120. 111 Nick McKenzie and Richard Baker, ‘Scandal? What Scandal’, The Sydney Morning Herald (online), 07 June 2012
P a g e | 19 Mark Alfred C l a r k s o n _ Adversarial to Inquisitorial P a g e | 20 afraid to confront. It is not just a case of Australians paying bribes in some overseas jurisdiction to gain contracts for the greater good of Australia. The Australian building and construction industries are deeply corrupt.114 There is no reason to assume that the mining, oil and gas industries, are not also run in a similar manner, and some evidence to suggest that they are.115
More recently the World Bank debarred SMEC International, based in Melbourne, and four subsidiaries in India, Bangladesh and Sri Lanka after an investigation into misconduct in south Asia. SMEC started out as the Snowy Mountains Engineering Corporation, formed in 1949 to build the iconic Snowy Mountains hydroelectric scheme. It was bought by Singapore-based Surbana Jurong in 2016 for $400 million. The investigation found evidence of inappropriate payments made in relation to World Bank-financed projects in Sri Lanka and Bangladesh, and misrepresentations to meet bidding requirements for projects in Sri Lanka and India. Debarment means the companies are ineligible to receive World Bank-financed contracts.116
It is hard to escape the fact that Australians pay and receive bribes domestically in order to gain contracts for the greater good of the participants in illegal conduct, which is wide spread and an accepted part of ‘doing business’ in Australia.117 In a documented alliance between ‘the bosses’ and ‘the workers’, those controlling the companies, their shareholders and those controlling the unions are all at the forefront of this graft cartel and are its major beneficiaries.118 When Australia says it is ‘open for business’ and offers an open hand it is expecting money to be placed in that open hand. Schmiergeld has been legitimised.
114 Chris Watson, ‘Australian Construction fraud costs estimate at $5 billion per year - Fraud is everywhere and takes many forms. It poses a significant threat to the profitability of clients’ (Grant Thornton Australia, Press Release, 2013)
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The ‘bag’ of Victorian folk-lore probably commenced in the days of John Wren,119 Millionaire, Labor Party Machine Boss, Irish Chieftain, and Organised Crime Figure, and Daniel Mannix,120 the Irish Roman Catholic Archbishop of Melbourne, and the overlapping of their relationship with the ALP.121 The bag is not actually one bag of money passed to its beneficiaries, but more a description in the common vernacular of a systemic system of graft that enables those seeking a decision to obtain one in their favour, and decision-makers to enjoy a few extra benefits, over and above their salary, or wages.
Perhaps the system of graft commenced from the earliest days of the settlement of Victoria.122 The graft sources can vary from stained white-collar endeavours,123 to more street level criminal activity,124 and over the years different sources for the bag have come, and gone as society, business and industry progressed. Sophisticated money laundering capacities facilitated by all Australian banks enable the sources of funds to be almost completely disguised.125 The existence of political ‘purses’, whether called ‘Party Accounts’, or ‘the Leader’s Account’ are a mechanism of long-standing that paints graft as political ‘donations’,126 that are said only to buy ‘access’ to decision-makers at much higher levels,127 than for example the meat inspectors accepting money and meat during the meat substitution racket.128
119 Chris McConville, above N 41; James Griffin, ‘John Wren-A Life Reconsidered’ (2004) 16 (2) The Sydney Papers 48; Lawrence Money, ‘No glory in the saga of the Wren family feud’, The Sydney Morning Herald (online), 17 February 2010
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Whilst no Australian court has yet decided a case directly on the point, it would be of some relief to all involved, if they followed the English decision in National Iranian Oil Company v Crescent Petroleum Company International Ltd & Anor.129 In that case, Burton J found that while English public policy requires that courts refuse to enforce a contract that is illegal under English law, (such as a contract to pay a bribe), there is no English public policy requiring courts to refuse enforcement of a contract procured by bribery or a contract tainted by previous misconduct, (such as a failed attempt to bribe).130 The contracts must stand no matter how they were procured, and should not be vitiated just because someone received a corrupt benefit. This approach must be contrasted with the political and executive decision in NSW to pass special legislation to cancel coal leases corruptly obtained, which the High Court of Australia found to be a valid exercise of legislative power.131 That matter should be viewed as just ‘a bridge too far’ even for a business landscape that is otherwise deeply corrupt, rather than a statement of a new principle of morality.
6. Escaping Regulation.
Until her retirement on 30 September 2017, The Honourable Marilyn Warren, Chief Justice of the Supreme Court of Victoria presided over a program You be the Judge offered by the Sentencing Council of Victoria. Their PowerPoint,132 deals with a real case of Drug Trafficking a large commercial quantity of Ecstasy. The offender, with no prior convictions was sentenced to 5-years imprisonment with a 2-year minimum. He did not get bail and already served 12 months. The Director of Public Prosecutions (‘DPP’) appealed and the sentence was increased to 6-years imprisonment, with a 3-year minimum. The PowerPoint refers to the Sentencing Advisory Council’s Myths and Misconceptions Report.133 However, the Sentencing Council of Victoria does not deal in its publications with the ‘special rules’ that appear to apply to ‘special people’ and does not mention the case of Kristina Hampel.
129 [2016] EWHC 510 (Comm). 130 Jonathan W Hew and Eleanor Scogings, ‘An Oily Situation: Separability, Public Policy and Arbitral Awards’, (Latham & Watkins LLP) Lexology (online), 5 June 2016
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Bail Law in Victoria,134 accurately outlines the new tough bail laws passed by the previous coalition government and the case law that has followed. It is now extremely difficult to get bail in Victoria on any serious criminal offence, particularly for those offences involving the distribution of commercial quantities of drugs. The new bail laws in Victoria came into effect after tough new bail laws in NSW. However, the case law and potential issues identified by the learn’d authors also do not include the exceptions from the otherwise rigid and uncompromising grasp of the bail laws in Victoria, demonstrated by the ‘special rules’ that appear to apply to ‘special people’, and does not mention the case of Kristina Hampel. The flyer,135 spruiking the virtues and scholarly achievements of the learn’d authors of Bail Law in Victoria,136 notes that:
In this 2nd edition of the book Professor George Hampel, Daniel Gurvich and Sarah Bruhn, who prior to becoming a barrister at the Victorian Bar worked at the Supreme Court of Victoria assisting with management of bail applications, provide a timely update of the law on bail in Victoria. A comprehensive review of the case law is provided. The authors identify the potential issues that lawyers need to be aware of when applying for (or opposing) bail.
After a long-standing investigation into drug trafficking, and an undercover police operation, which involved secret cameras hidden in her South Yarra home, Kristina Hampel, the daughter of former Supreme Court Justice George Hampel AM QC, and stepdaughter of current County Court Judge Felicity Hampel, of Senior Counsel, was caught selling cocaine from her home, netting her $3,800.00 for the 10 grams sold. On one occasion, a buyer was seen snorting cocaine off a plate to test its quality before handing over cash. When police raided Kristina Hampel’s home, they found deal bags containing the drugs, $12,300.00 in cash and a canister of tear gas.137
Kristina Hampel was arrested on 14 August 2014, but immediately released on bail, and when finally dealt with pleaded guilty to one count each of dealing cocaine and possessing a prohibited weapon. She claimed media attention about her offending had hurt her career as a self-employed copywriter, and argued a conviction would further set her back.138 Magistrate
134 Ibid. 135 The Federation Press, Bail Law in Victoria, (2017)
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Franz Holze said Hampel should have known better given her age, but considered her early guilty plea and the embarrassment to her family. He sentenced Hampel to a 24-month community corrections order and ordered she carry out 200 hours of community work, but no conviction was recorded.139
Those charged with less serious offences, held without bail, and sentenced, after a year or more on remand in custody, to significant prison sentences appear to just accept the two-tier approach of Australian justice to the questions of bail, conviction and prison sentences. They just seem to know and accept that they are not ‘special people’. The tribe does not protect ordinary people, but makes examples of them – pour encourager les autres.
Peter Ross Hayes, One of Her Majesty’s Counsel, (30 October 1948 – 21 May 2007) was a prominent barrister in Melbourne.140 He was a director of the Melbourne Football Club from 2000 to 2003. In 2005, Hayes was subject to a professional complaint made by solicitor Isaac Alexander Brott, to the Ethics Committee of the Victorian Bar. The solicitor, who worked with Hayes, asked that Mr Hayes be tested for drug use accused him of being an ‘inveterate cocaine user’. The complaint was dismissed as ‘vexatious and lacking in credibility’.
This was in some ways a great pity – the allegations turned out to be true, and a proper investigation might have saved the life of Hayes, by requiring him to seek treatment. Hayes died in the Royal Adelaide Hospital on 21 May 2007, 11 days after being found naked and unconscious in an Adelaide hotel room. Toxicology revealed he had ingested cocaine and heroin immediately before his death, and that lethal drug overdose was the cause of death. He was survived by his former wife Mary Stephen (daughter of Sir Ninian Stephen, a former High Court Judge, and Governor-General of Australia), a son and two daughters.141 The tribe took its own steps, in its own way, to protect one of its own.
Hayes is apparently not alone. Revelations by Forensic Psychologist Tim Watson-Munro, appear to indicate large numbers of those involved in the legal profession in Victoria have substance abuse problems.142 Perhaps it helps them deal with the profound personal moral dilemmas they face, when balancing the demands of the tribe against their personal consciences, in a toxic environment otherwise ruled by the morally vacant, and the intellectually dishonest.
139 Ibid. 140 Wikipedia, Peter Hayes (lawyer), (online), 21 March 2016)
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7. Due Process of the Law and the Summum Bonum.
For more than a thousand years, the proposition that no one shall be imprisoned other than according to the due process of the law has been fundamental to any concept of justice and Rule of Law. Central to the concept of due process is the notion that imprisonment other than in accordance with the due process of the law is unlawful. The remedy on Habeas corpus is to discharge the prisoner from that imprisonment. In contrast, the Summum bonum of Roman Catholic Law and Doctrine (often described as the ‘end justifies the means’) provides that all laws are merely indicative, and confer no absolute rights; that no breach of any legal provision demands that an accused be released from imprisonment, but that all the breaches of all the laws involved in any matter be examined, and balanced to decide where the greatest good lies.
The words due process first appear in Magna Carta,143 and are repeated in several of the Habeas Corpus Acts,144 and in the Bill of Rights.145 They appear in the 5th and 14th Amendments to the United States Constitution,146 and in Article 9(1) of the Optional Protocol of the International Covenant for Civil and Political Rights.147 They are notionally incorporated into the Charter of Human Rights and Responsibilities Act 2006 (Vic), s 21(3).148 The due process and the other requirements of those Imperial Acts transcribed in the Imperial Acts Application Act 1980 (Vic),149 are also regarded as written parts of the otherwise unwritten constitution of the State of Victoria, and are said to continue to influence the development of the common law in Victoria,150 although apart from the platitudes – there is little real evidence of this. The due process concepts were further developed, and reaffirmed in England in the aftermath of the
143 [1297] 25 Edward I c. XXIX (Magna Carta). 144 [1640] 16 Charles I c. X (The Habeas Corpus Act); [1679] 31 Charles II c. II; [1816] 56 George III c. C. 145 [1688] 1 William and Mary Sessions II c. II (The Bill of Rights) 3. 146 Steve Bachmann, ‘Starting Again with the Mayflower... England's Civil War and America's Bill of Rights’ (2000) 20 (2) Quinnipiac Law Review 193. 147 Optional Protocol to the International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976). 148 But not ipsissima verba, although there appears to be no real difference in the effect of the words used. ➢ 5th Amendment: ‘No person shall be … deprived of life, liberty or property without due process of law…’ ➢ 14th Amendment: ‘nor shall any state deprive any person of life, liberty or property without due process of law…’. ➢ [1354] 28 Edward III c. III: ‘no man shall be put out of land or tenement, nor taken, nor imprisoned, nor disinherited, nor put to death, without being brought in answer by due process of the law’. ➢ [1368] 42 Edward III c. III: ‘no man shall be put to answer without … due process …’. ➢ ICCPR, Art 9(1): ‘No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law’. ➢ Charter of Human Rights and Responsibilities Act 2006 (Vic), s 21(3): ‘A person must not be deprived of his or her liberty except on grounds, and in accordance with procedures, established by law’. 149 Emulated in some other Australian States: see for example the Imperial Acts Application Act 1969 (NSW). 150 Antunovic v Dawson (2010) 30 VR 355, 362 [25].
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English Civil War,151 and Revolution (1603-1714),152 as a foil to the tenets of the auto-da-fé, and the Star Chamber, and did not adopt the variable, relative morality of Roman Catholicism concatenated in the Summum bonum, but rejected it, providing rights which were absolute.
In many ways, the English Civil War was more than just a fight between the followers of the Roman Catholic and Protestant religions, but also between those favouring the Summum bonum, and those demanding due process of the law. Roman Catholics largely supported the concept of a Monarch wielding absolute power – (on the basis that the Monarch must be a Roman Catholic), supported by a hierarchy of Nobles.153 This structure emulates the power hierarchy by which the Roman Catholic Church itself is ruled. Whilst following the death of Cromwell, it appeared for a time that the Summum bonum of Roman Catholic Law and Doctrine would become entrenched in England, Scotland, and Ireland under a Roman Catholic Monarch,154 the ascendency of the ‘orange’ William and Mary,155 resulted in the reaffirmation of due process in the English Bill of Rights.156
In Victoria, Australia, reversing the legal and ideological victories the ‘orange’ William and Mary obtained over English Roman Catholic Monarchs manqué,157 is included in Roman Catholic causes célèbre. Gradually, the Summum bonum of Roman Catholic Law and Doctrine vanquished due process of the law. The Summum bonum dilutes the effectiveness of the Charter of Human Rights and Responsibilities Act 2006 (Vic) – with s 7 demanding ‘that rights should not generally be seen as absolute but must be balanced against each other and against other competing public interests’. This application of the Roman Catholic ‘no rights are absolute’ doctrine,158 ignores the plain fact that if it is not ‘absolute’, it is not a ‘right’, and renders the Charter of Human Rights and Responsibilities Act 2006 (Vic), a ‘show-no-go’ instrument designed to placate calls for human rights, without conceding much.
151 Norah Carlin, The Causes of the English Civil War (Wiley-Blackwell, 1999). 152 Mark Stoyle, Soldiers and Strangers: An Ethnic History of the English Civil War (Yale University Press, 2005); Mark Stoyle, Overview: Civil War and Revolution, 1603-1714, BBC (online), 17 February 2017
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The High Court of Australia in Dietrich,159 observed that due process of the law has received scant attention in Australia,160 and that it does not mean in Australia what it means in the United States.161 However, the High Court did not go on to say what due process of the law does mean in Australia.162 While the High Court did not say that in Australia due process of the law is an entirely meaningless expression, it does seem that whatever process effected the imprisonment of anyone is regarded as the due process of the law, ignoring, rather than implicitly repealing historical impediments to inquisitorial powers.163 The Roman Catholic former Chief Justice of the High Court of Australia, the Honourable Murray Gleeson AO observed that the Australian Constitution ‘for a large part of the 20th century, was given a rights-based interpretation’ and: ‘That rights-based interpretation was later abandoned by the High Court, apparently with general approval’.164 However, the High Court neither sought nor obtained the ‘approval’ of the Australian people for this course. In short, the ‘doctrine’165 adopted by High Court of Australia is inconsistent with, and overrides the due process model for the administration of justice. Such is the power of the tribe.
Australia is a signatory to the International Covenant on Economic, Social and Cultural Rights (‘ICCPR’),166 its Optional Protocol,167 and other UN treaties and conventions dealing with Human Rights, which are built on the due process model. Australia urges other countries to adopt these international instruments as part of their domestic law. However, as Mason CJ and McHugh J point out in Dietrich,168 following the earlier decision in Bradley v Commonwealth,169 these international agreements and instruments are not part of Australian domestic law.170 However, the Australian Commonwealth does have some legislative capacity make things inspired by the ICCPR part of Australian domestic law (if it chose to do so).
159 (1992) 177 CLR 292. 160 Before Ibrahim. See Dietrich, 304, and the reference to R v Ibrahim [1987] 17 A Crim R 460. 161 Dietrich, 304, following Adler v District Court [1990] 19 NSWLR 317. 162 Ibid 307. 163 For example, the procedures of the Star Chamber emulated by the Chief Examiner are proscribed by [1640] 16 Charles I c. X (The Habeas Corpus Act), and incarceration to facilitate the investigations of a Royal Commission is imprisonment other than according to due process of the law: [1627] 3 Charles I (Petition of Right) c. I and [1688] 1 William and Mary Sessions II c. II (The Bill of Rights). 164 The Honourable Murray Gleeson AO QC, above N 8. 165 Re Heerey; ex parte Heinrich (2001) 185 ALR 106; Glennan v Commissioner of Taxation (2003) 198 CLR 250; Em v The Queen [2007] HCA 46, [238] (Kirby J). 166 International Covenant on Economic, Social and Cultural Rights, open for signature 19 December 1966, 999 UNTS 3 (entered into force 03 January 1976). 167 Above N 147. 168 (1992) 177 CLR 292, 391. 169 (1973) 128 CLR 557, 582. 170 Reaffirmed in Minister for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273, 287.
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Immediately after the ratification of the Optional Protocol,171 offences proscribing sodomy and gross indecency between consenting adult males under the Criminal Code 1924 (Tas) were challenged by Nicholas Toonen before the UN Human Rights Committee. The Committee held that the existence of these offences violated rights of privacy under Article 17, of the ICCPR.172 The subsequent failure to repeal these laws in Tasmania led the Keating Labor government, relying upon the Federal external affairs powers under the Constitution, to enact the Human Rights (Sexual Conduct) Act 1994 (Cth), giving a right to privacy in relation to sexual conduct for adults that has the effect of rendering the Tasmanian laws inoperative. The Commonwealth Statute is generally accepted as a valid exercise of the legislative powers of the Commonwealth.173
The success achieved in the Toonen case, when most other successes before the UN Human Rights Committee are ignored by the Australian Commonwealth, might be attributed to the great political power wielded by the Lesbian, Gay, Bisexual, Transgender, Queer, Questioning, Intersex, and Allies (LGBTQQIA) community, largely as members of the ALP tribe. Defining sexuality is a complex matter. Not all those engaged in early sexual contact in schools, even with adults, completely reject the experiences, and some become enamoured with them.174 Indeed, the late Robert Joseph (‘Dolly’) Dunn who died in jail convicted of paedophilia, was fond of saying that firstly as a pupil/abused, then as a teacher/abuser he ‘enjoyed the full benefits of a Roman Catholic education’.175 However, it appears that in Roman Catholic School seeing to it that ‘all the faithful, but especially the youth who are the hope of the Church, enjoy this Christian education’,176 does not extend to accepting that due process of the law is necessary to ensuring that human rights are more universally adopted.
If we reject the findings of the majority in Dietrich,177 and adopt from Wolf v Colorado,178 the definition for due process as the ‘compendious expression for all those rights … basic to our
171 Above N 147. 172 Toonen -v- Australia [1994] 1 PLPR 50 Communication No 488/1992, UN Doc CCPR/C/50/D/488/1992, 4 April 1994. 173 See Report by the Senate Legal and Constitutional Legislative Committee, Human Rights (Sexual Conduct) Bill 1994 (December 1994) [1.72]. 174 Resolution on gender and sexual orientation diversity in children and adolescents in schools (American Psychological Association and National Association of School Psychologists, 2015)
P a g e | 28 Mark Alfred C l a r k s o n _ Adversarial to Inquisitorial P a g e | 29 society’ that due process is in the United States Constitution, then the concept due process of the law firstly aggregates all the Statutes, Regulations and Rules that set the regulatory framework for the administration of criminal justice. It also includes all the protocols and conventions that are accepted as part of the practice and procedure of the administration of criminal justice. Many of the latter are derived from the case law. Others, such as the Audi alteram partem Rule, from the tenets of natural justice. Others still from longstanding notions of fairness. Together this concatenation would set the procedures by which the imprisonment of Her Majesty’s subjects could be lawfully effected. However, in Australia, it is not to be.
The Roman Catholic High Court Justice Dyson Heydon illuminated the central theme underpinning the Australian criminal justice system when he explained the Summun bonum, of Roman Catholic Law and Doctrine, in Moti v The Queen (‘Moti’),179 (although in dissent on the ultimate judgment) finding that it is not a case of ‘the end justifies the means’, but that ‘the accident of evil means should not disrupt the fulfilment of a just end’.180 There are a lot of ‘accidents’ in Australian justice, simply because on the case law anything that might otherwise look to the untrained eye as deliberate misfeasance motivated by malice or evil is inevitably found by the Court to be a mere slip or glitch; the unintended and accidental employment of procedures not entirely de regle. In other words, in Australia just because the imprisonment is perpetrated by unlawful or ‘evil’ means, or in violation of due process of the law does not mean that the imprisonment itself is unlawful, but the violations of due process must be balanced against the ‘greater good’ sought to be achieved by the perpetration of the ‘lesser evils’.
One example is provided by Lasry J, in R v Borg,181 which concerned the wholesale use of unsworn affidavits by the Victoria Police. This was before the Evidence (Miscellaneous Provisions) Amendment (Affidavits) Act 2012 (Vic), which enabled unsworn affidavits, and the evidence obtained pursuant to them to be admitted in criminal trials – and saved the Victorian Court of Appeal, and Trial Judges having to invent ever more elaborate excuses to justify and excuse corrupt police, and prosecutorial misconduct when admitting evidence otherwise unlawfully obtained. Lasry J examined Victorian Detective Senior Sergeant Ron Iddles, (a veteran Victoria Police Officer well known to police, prosecutors and defence counsel), in the witness box. Iddles told the Court that everything he said in his affidavit was true and correct.
179 Moti v The Queen (‘Moti’) [2011] HCA 50; 245 CLR 456; 86 ALJR 117; 283 ALR 393; 218 A Crim R 204. 180 Ibid [106]. 181 [2012] VSC 284R.
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DSS Iddles in line with the policy of Victoria Police, did not actually swear the affidavit. Just a small ‘technicality’. But he could now swear to it, so everything was okay, because there were no lies in it. Forget and forgive small lesser crimes like forging and uttering, perverting the course of justice and the criminal contempt of court occasioned by the conduct. Lasry J found that the information contained in the affidavits was accurate, correct and truthful and exercising his discretion allowed the evidence obtained to be admitted. The unashamed certainty that Courts will always make this finding, empowers police, prosecutors and trial judges to do and say anything at all, to obtain or maintain the ‘just end’ (for which read ‘desired end’). The powers that be, first decide what ‘end’ they wish to achieve, then mysteriously, but always ‘accidentally’, ‘evil means’ occur to achieve it.
The Summum bonum is deeply entrenched in Australian law. The decision of former NSW Justice Roderick Howie in R v Cornwell,182 serves as a further example. It was alleged in that case that the information in the affidavit seeking a search warrant was false and misled the officer who issued the warrant. Howie J held that the evidence had not been obtained because of an impropriety, and that the ‘misstatement’, seen in the context of the affidavit as a whole, led him to the view that all that was involved was an ‘inadvertent mistake’ in an otherwise carefully drawn affidavit. His Honour held that such conduct could not alone be reasonably be regarded as improper, notwithstanding the significance of swearing an affidavit in support of a Listening Device Warrant. Howie J also found that there was no causal connection between the impropriety alleged and the obtaining of the impugned evidence, finding:
I am of the view that, otherwise than when sub-sections 138(2) or s 139 apply, the court should determine whether the section is engaged having regard to the particular facts and circumstances before it but with due regard to the seriousness of a finding that evidence was obtained improperly or as a consequence of an impropriety and the outcome of such a finding. Not every defect, inadequacy, or failing in an investigation should result in a finding that the section applies merely because it may be considered that, as a result of those defects inadequacies or failings, the investigation was not properly conducted or that the police did not act properly in a particular respect. On the other hand the terms of sub-section 138(3)(e), which sub-section requires the court to take into account whether the impropriety or contravention was deliberate or reckless make it clear that the conduct need not necessarily be wilful or committed in bad faith or as an abuse of power.183
182 [2003] NSWSC 97; (2003) 57 NSWLR 82. 183 R v Cornwell [2003] NSWSC 97; (2003) 57 NSWLR 82 [20].
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Despite Howie J resigning from all his offices after pleading guilty to criminal offences, perpetrated whilst suffering a long-standing addiction to alcohol and prescription medications,184 (and presumably Howie J wrote all his judgments whilst under the influence of this substance abuse), his path had been followed in a long line of authority.185 The following from Regina (C'Wealth) v Baladjam & Ors [No 46]:186
The Court of Criminal Appeal has itself considered the operation of s 138 of the Evidence Act in recent times. In R v Camilleri [2007] NSWCCA 36; [2007] 68 NSWLR 720 (McClellan CJ at CL, Bell and Howie JJ) reinforced the views expressed by Howie J in R v EM, to the effect that s 138 is concerned with balancing public interests. McClellan CJ at CL (with whom the other members of the Court agreed) said at 727 (31):
The fundamental concern of the section is to ensure that, if the law has been breached, or some other impropriety has been involved in obtaining evidence, this is balanced against the public interest in successfully prosecuting alleged offenders. The competing interests are obedience to the law in the gathering of evidence and enforcement of the law in respect of offenders. In R v EM (at 74), Howie J said:
‘The discretion under s 138 is similar to that which was described in R v Swaffield (1998) 192 CLR 159 as the public policy discretion at common law. Of course, there is a significant difference between the discretion under s 138 and that at common law: the section requires that the Crown persuade the Court to admit evidence that was improperly or unlawfully obtained. But just as at common law, the public policy discretion was distinct and separate from the unfairness discretion, so the discretion to admit evidence under s 138 is a distinct and separate discretion from that arising under s 90. The two discretions may overlap but they are not synonymous. Section 138 is not, in its terms at least, concerned with the Court ensuring a fair trial for the accused. Certainly, that is not a paramount consideration when exercising the discretion. The discretion exercised under s 138(1) seeks to balance two competing public interests, neither of which directly involves securing a fair trial for the accused.’ (highlighting added).
The Summum bonum is central to Roman Catholic Law and Doctrine, and as is shown above, securing a fair trial for any accused is not part of the agenda. The judgments of Justice Breyer, for due process and the Roman Catholic Justice Scalia for the Summum bonum, in the United
184 Jodie Minus, ‘Retired judge involved in crash had taken a drink and drug “cocktail” the night before: court’, The Australian (online), 21 September 2011
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States Supreme Court decision in Hudson v Michigan,187 clearly outline the basis and the consequences of these opposing foundations for justice, and show that Roman Catholic Law and Doctrine is not just an Australian problem, but that this strangler-fig of justice is an international virus. Anyone persuaded by the arguments of the Roman Catholic Justice Scalia for the Summum bonum urging ‘better training’ as the answer to police, prosecutorial, and judicial corruption should understand where adopting that fallacy leads. In Australia, corrupt and unlawful conduct on the part of investigators, prosecutors and judges is promoted as necessary and desirable. It is encouraged by appellate courts, politicians and the media. The variable, relative morality of Roman Catholicism prevails where everything is judged on a case-by-case basis and decided on the basis where in the ‘basket of evils’ the ‘greater good’ lies. The power of the tribe must be absolute, and preserved.
8. Tribal Enforcers.
The stonemasons of Melbourne first won the eight-hour day, and other unions then followed that incentive.188 The victories of these early boom years did not survive the 1890s depression, and ‘employers moved against unions in the name of “freedom of contract” and turned to the armed power of the state to break the resulting strikes’.189 The Australian convict past, bushranger offshoot, anti-authoritarianism sentiment, and armed resistance to armed union-breaking, gave rise to an acceptance of thuggery in unions. The Painters and Dockers Union became notorious for openly accepting active criminals into its ranks,190 but ‘many of the characters associated with the union, the murderers, stand over men, drug traffickers, armed robbers, muscle-for-hire and moonlighters, had spent formative years in the armed services, notably the army’.191
The ‘muscle’ the Builders Labourers Federation (‘BLF’) employed to secure worker’s rights,192 and later environmental incentives,193 became a legitimate tool available to the union movement to secure political advantages, but often led to conflicts with police.194 These matters did not
187 547 US 586 (2006). 188 Humphrey McQueen, Temper Democratic: How Exceptional is Australia? (Wakefield Press, 1988) 18. 189 Ibid 18-19. 190 James Morton, and Russell Robinson, Shotgun and standover: The story of the painters and dockers (Macmillan Publishers, 2010). 191 Russell Robinson, Khaki Crims and Desperadoes (Macmillan Publishers, 2014) 3. 192 Kathie Muir, ‘Thugs and Bullies: The Deployment of Rogue Masculinity in the Campaign for Workers' Rights on Site’ (2013) 28 (75) Australian Feminist Studies 30. 193 Verity Burgmann, ‘The social responsibility of labour versus the environmental impact of property capital: The Australian green bans movement’ (2000) 9 (2) Environmental Politics 78. 194 David Baker, ‘Barricades and batons: A historical perspective of the policing of major industrial disorder in Australia’ (2001) Policing the lucky country 199.
P a g e | 32 Mark Alfred C l a r k s o n _ Adversarial to Inquisitorial P a g e | 33 stop when the Construction, Forestry, Mining and Energy Union (‘CFMEU’) absorbed the BLF membership after its deregistration,195 but more effort was made to build bridges with the community at large.196 The ALP took advantage of the organisational capacities of unions to muster their membership, to deploy them in support of political policies the ALP promoted.197 Social media has enabled large scale mobilisation of protests,198 uniquely positioned to concatenate the political aspirations of students, migrants and Green/Left causes célèbre.199 There is a thin line between strident non-violent protest, and political violence. Policing has moved to counter violent protests with exclusion zones, and specialist squads with paramilitary capacities,200 noting that: ‘The threat of force, like its actual implementation, can be a deterrent to potential protest participants’.201
In Victoria, while unions provide the de facto enforcement of tribal rules, and protocols, with force when deemed necessary, the Australian Federal Police, and State Victoria Police provide the de jure physical enforcement of Commonwealth and State Victoria laws. Often these laws overlap. Trials of both Commonwealth and State offences on joint presentments are routine.202 However, there is one example of a matter progressing all the way to the High Court of Australia under State Victoria laws, before State Victoria prosecutors came to understand that they and the Victorian Courts before whom the matter had been tried, and appealed at first instance were,
195 Liz Ross, Dare to Struggle, Dare to Win: Building Labourers Fight Deregistration 1981-1994 (Vulgar Press, Carlton North, 2004). 196 Sandra Cockfield, Al Rainnie, Donna Buttigieg, and Marjorie Jerrard, ‘Community unionism and union renewal: building linkages between unions and community in Victoria, Australia’ (2009) 34 (4) Labor Studies Journal 461. 197 Jim McIlroy, ‘Sydney rally says, “hands off Medicare!”' (2014) 1030 Green Left Weekly 5; Janis Bailey, and Kurt Iveson, "'The Parliaments Call Them Thugs”: Public Space, Identity and Union Protest’ (2000) 42 (4) Journal of Industrial Relations 517; Doug McAdam, John D McCarthy, and Mayer N Zald (eds), Comparative perspectives on social movements: Political opportunities, mobilizing structures, and cultural framings (Cambridge University Press, 1996); Sandra Jones, ‘A woman’s place is on the picket line: Towards a theory of community industrial relations’ (2002) 24 (2) Employee Relations 151. 198 Christian Ehnis, Milad Mirbabaie, Deborah Bunker, and Stefan Stieglitz, ‘The role of social media network participants in extreme events, in 25th Australasian Conference on Information Systems (Auckland, New Zealand, 8-10 December 2014); Geoffrey Craig, ‘The spectacle of the street: an analysis of media coverage of protests at the 2000 Melbourne World Economic Forum, [Article based on a paper given at the Conference of the Australian and New Zealand Communication Association (2001: Perth, WA)]’ (2002) 29 (1) Australian Journal of Communication 39. 199 Shanthi Robertson, ‘Campus, City, Networks and Nation: Student‐Migrant Activism as Socio‐spatial Experience in Melbourne, Australia’ (2013) 37 (3) International Journal of Urban and Regional Research 972. 200 David Baker, ‘Paradoxes of policing and protest’ (2008) 3 (2) Journal of Policing, Intelligence and Counter Terrorism 8, 9-10. 201 Ibid. 202 Commonwealth Director of Public Prosecutions, Prosecution Process: Joint Trials – State and Territory DPPs
P a g e | 33 Mark Alfred C l a r k s o n _ Adversarial to Inquisitorial P a g e | 34 despite their best endeavours to the contrary, actually operating under Federal, not State laws.203 Because they rely on tribal cohesion to obtain and maintain criminal convictions, tribal apparatchiks don’t need to read many law books, or understand constitutional constraints. They take the view that despite a lack of learning, they will usually be able to blunder through. Whilst a somewhat scary thought, it is a remarkably accurate assessment.
Whether at Federal, or State Victoria level, policing in Victoria means regulating, controlling, administering, and taxing crime – not eliminating it.204 To protect the ‘policing’ and the profits it generates, Victoria police ‘condition’ public opinion using the media, especially crime and investigative reporters. ‘They published the story the way we wanted it or they were left off the list (of journalists) that would be contacted for any sort of story, or assisted in any way, so it was clearly in the interests of media outlets to toe the police line, and that's how it worked’.205
Sometimes, when a member of Victoria Police committed ‘an act of disloyalty’206 as defined ‘in the tribal world of Victoria Police’,207 it becomes necessary for Victoria Police to turn their considerable tribal powers and influence against one of their own. When this happened to drug squad detective Paul Dale, the darker side of Victoria Police tactics in ‘conditioning’ or ‘coaching’ the evidence obtained from prosecution witnesses was exposed by an insider. No doubt, the ‘accident of evil means’, described by the Roman Catholic High Court Justice Dyson Heydon,208 was being employed. One of the statements against Dale obtained by Victoria Police from Carl Williams contained this note:
This previous statement was accurate to the best of my memory without my memory being refreshed. The police have requested that I make an additional statement. The police have advised me that they will supply me with additional information which may refresh my memory. This statement will contain any further information that I can remember after the police have supplied me with this information.209
203 Momcilovic v The Queen [2011] HCA 34; 245 CLR 1; 85 ALJR 957; 280 ALR 221; 209 A Crim R 1. 204 Christine Nixon, Fair Cop (Victory Books, 2012) 148-159; Paul Dale, Disgraced? The Cop at the Centre of Melbourne's Gangland Wars (Five Mile Press, 2013); James Morton, and Susanna Lobez, Gangland Australia: Colonial Criminals to the Carlton Crew (Melbourne University Publishing, 2014). 205 Adam Shand, ‘Ex-detective Paul Dale refuses to cop the blame’ The Weekend Australian (online), 24 August 2013
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The treatment of Dale, must be contrasted with the exoneration of Noel Ashby, a former Deputy Commissioner of Victoria Police, extended later to Stephen Linnell, the former Victoria Police media boss. While rank may have its privileges, these cases speak eloquently of the lack of honesty, and personal integrity at the highest levels of Victoria Police. The report to the Victoria Parliament by the Office of Police Integrity (‘OPI’) found the matter involved a plot to depose Christine Nixon, then Victoria Police Commissioner, and install Ashby as a ‘puppet’ of the Police Union,210 and then remove Simon Overland, a Deputy Commissioner.211 Overland ultimately triumphed, and was appointed Commissioner when Christine Nixon retired,212 but he only lasted 27 months,213 following Deputy Commissioner Sir Ken Jones (an English appointment) out the door.214 On one view, this was the war in police ranks to decide who would rule Victoria Police. At stake, the distribution of the drug profits that sparked the underworld war.215
While the Director of Police Integrity also found that the resignations of Ashby and Linnell had effectively cleansed Victoria Police of corruption,216 others thought ‘a deal had been done’, because Linnell ‘knew too much’.217 The ‘mere technicalities’ decried when advanced by defence Counsel in favour of an ordinary criminal accused, and the full measure of the due process of the law were extended to Ashby to enable the most exquisitely crafted points of law to succeed, and relieve him of the burden of charges of perjury.218 The benefit of this ‘special case’ (not to be regarded as a precedent of general application) were later extended to Stephen Linnell, the former Victoria Police media boss to enable him escape liability for the criminal offences to which he had previously pleaded guilty (no doubt due to a mistake as to the law), and on which he had been convicted. They were after all only perjury charges, relating to the
210 G E Brouwer, Director Police Integrity, ‘Exposing corruption within the senior levels of Victoria Police’ (Report to Victoria Parliament, February 2008) 12
P a g e | 35 Mark Alfred C l a r k s o n _ Adversarial to Inquisitorial P a g e | 36 lies Linnell admitted telling the OPI.219 The moral of the story: you cannot convict a member of Victoria Police on corruption charges, even when he pleads guilty (particularly if you are looking to acquit him).
Despite the observations made by the Director of Police Integrity on the ‘Propensity of Police Witnesses to lie on Oath’,220 lies are what Victoria Police regard as ‘job-craft’ and perpetrate as a matter of daily routine. Some people in Australia have more civil rights than others. Not everyone is equal, and certainly not equal before the law. Nor should the quality of the civil rights accorded to the special few, be confused with the quantity of the civil rights posited as being available to all.
A still darker view of the ‘policing’ of the Victorian drug trade by Victoria Police, might be illuminated by the realisation that many prosecution witnesses, the testimony of whom might not have portrayed Victoria Police in a best light – were murdered before they could give their evidence in Court.221 Carl Williams, one of those witnesses, was murdered whilst a prisoner in maximum security at Her Majesty’s Prison Barwon. The General Manager in charge of the unit in which the murder occurred, ‘disappeared’ shortly thereafter whilst deer hunting in the mountains.222
‘Getting busted is about two things – the drugs and the money, Ka Sing Lei, the head of one of the larger money laundering rings, said on a call taped by police in 2015. Once the stuff is over the border that is not the problem – it's the money’.223 Sophisticated money laundering capacities facilitated by all Australian banks enable the sources of funds to be almost completely disguised.224 As Liam Houlihan puts it: ‘This is the story of police corruption for years swept under the carpet to avoid a Royal Commission. It is the story of a police force politicised to the point of paralysis and a witness protection program that buries its mistakes’.225 Such is the power of the tribe.
219 Lauren Wilson, ‘Convictions against Stephen Linnell for lying to Victoria's OPI have been overturned’, The Weekend Australian (online), 16 June 2010
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The Summary of Australian Policing in the English Home Office Report,226 was written before the more strident harvesting of drug profits by Victoria Police,227 and subsequent underworld war.228 Nevertheless, it does describe police culture with some accuracy:
There is also considerable evidence of longstanding corruption within Australian policing (Finnane, 1994). Evidence of gambling-related corruption is available from the earliest days of this century, particularly in New South Wales in the 1930’s and Victoria in the 1950’s. A series of official inquiries (the Beach, Kaye, Lucas, Lusher and Neesham Inquiries) have uncovered organised police corruption in New South Wales, Queensland and Victoria since the 1970’s. Two recent inquiries: the Commission of Inquiry into Possible Illegal Activities and Associated Police Misconduct in Queensland (Fitzgerald, 1989); and, the Royal Commission into the New South Wales Police Service (Wood, 1997), both found widespread and organised corruption within the police service. Both investigations also pointed to wider problems: inadequate education and training of officers, particularly with regard to ‘ethical training’; insufficient or poor management; a ‘police code’ or culture which showed contempt for the criminal justice system; disdain for the law and rejection of its application to police; disregard for the truth; and abuse of authority (Fitzgerald, 1989: 200).229
Victoria Police have long had ‘a police code or culture which showed contempt for the criminal justice system; disdain for the law and rejection of its application to police; disregard for the truth; and abuse of authority’. It comes from the application of the Summum bonum. However, Victoria Police are not alone when immersing themselves in this culture, and modus operandi.
Answering ‘the question of how otherwise experienced and principled lawyers can make blatantly unethical decisions’, Dr Kath Hall, from the ANU College of Law, posited the view that they did not consciously act immorally, but within the common framework of deliberative action, were engaging in unethical behaviour other than as the result of conscious and controlled mental processes; a tendency increased by situational factors that encourage rationalization.230 Lawyers in Victoria, do not appear to be conscious of their actions, and the wider economic,
226 Tim Newburn, and Barry Webb, above N 124. 227 Rachel Carbonell, ‘Victoria Police admit links between underworld war and corruption’ ABC Radio (online), 21 May 2004
P a g e | 37 Mark Alfred C l a r k s o n _ Adversarial to Inquisitorial P a g e | 38 moral and ethical implications of the decision-making processes in which they engage. That is provoked by more than just the belief that put on inquiry, the decision-making processes are unlikely to be favoured with an autonomism interpretation.
Observers of criminal justice in Victoria find it difficult to distinguish between members of Victoria Police, the criminals they arrest, and the barristers representing them. The story of Nicola Gobbo, of Counsel, niece of Sir James Gobbo, AC, CVO, KStJ, QC, former Supreme Court Justice, and Governor of Victoria – being merely one case in point.231 All share the same culture, and the ultimate source of most of their money comes directly or indirectly from the drug trade. Many also have personal substance abuse problems.232 At the top of this policing tribal enforcement regime are the politicians from all sides of politics233 – masters of all of the above. Labor Party power broker Graham Richardson observed that ‘no laws were broken’ in his day when accepting ‘donations’ from the underworld ‘because electoral funds checks and balances hardly existed in those times’234 – but not much has changed since to stop the practice.235
9. The Chief Examiner.
Yes, there really is a person called the ‘Chief Examiner’ lurking in the bowels of the Police State, Victoria, Australia. No, this is not made up. Whilst he may emulate the Grand Inquisitor of the auto-da-fé reincarnated in Victoria, he is a figment of 21st Century Victorian imagination, empowered pursuant to the Major Crimes (Investigative Powers) Act 2004 (Vic).236 Indeed, as is allowed under the legislation, to replace the first Chief Examiner Damien B Maguire, who held office for a decade, until July 2015,237 on 13 October 2015 Stephen J McBurney was
231 Liam Houlihan, above N 225. 232 Tim Watson-Munro, Above N 142. 233 Nick McKenzie, Richard Baker, and Richard Willingham, ‘Matthew and Madafferi: Opposition Leader Matthew Guy dined with alleged mobster’ The Age (online), 8 August 2017
P a g e | 38 Mark Alfred C l a r k s o n _ Adversarial to Inquisitorial P a g e | 39 appointed the Chief Examiner,238 on 2 February 2016 Joanne L Smith was appointed an Examiner,239 and on 23 February 2016 Damien Hannan was appointed a Sessional Examiner.240 So, there is now a Chief Examiner, and Examiner, and a Sessional Examiner, no doubt with attendant support staff. Parkinson’s Law of the Public Service,241 apparently applies to the Office of the Chief Examiner.
The Inquisitors are not really restrained by provisions restricting their investigations to an ‘organised crime offence’ – very widely defined to include any offence punishable by imprisonment for ten years or more,242 and which involves two or more offenders.243 The Inquisitors must also be satisfied the offence involves substantial planning and organisation,244 forms part of systemic and continuing criminal activity,245 and has a purpose of obtaining profit, gain, power or influence or of sexual gratification where the victim is a child.246 These latter three criteria are satisfied, if the Inquisitors are satisfied that two or more of the offenders involved in the offence are, at any time, either ‘declared individuals’ or a ‘declared organisation members’.247 These terms are defined in the Criminal Organisations Control Act 2012 (Vic), and mean that the individual or organisation (as the case may be) has been ‘declared’,248 by the Court, on application by the Chief Commissioner of the Victoria Police.249
The remnants in Victoria, of the historic ‘right to remain silent’, or ‘right against self-incrimination’ are abrogated – wilting under the powers of the Inquisitors.250 The majority decision of the High Court in Petty and Maiden v The Queen,251 is a distant memory. Whilst the answers given, or documents produced are said not to be admissible against the Inquisitee in any later criminal proceedings,252 that does not apply to anything obtained as a direct or indirect consequence.253 No, the Roman Catholic Church has not been ‘declared’, and the activities of Clergy and other members of the Church have never been investigated as an
238 Major Crimes (Investigative Powers) Act 2004 (Vic), s 21(10(a). 239 Ibid, s 21(1)(b). 240 Ibid, s 21(3). 241 Cyril Northcote Parkinson, Parkinson's Law: The Pursuit of Progress (London, John Murray, 1958). 242 Ibid, s 3AA(1)(a). 243 Ibid, s 3AA(1)(b). 244 Ibid, s 3AA(2)(a). 245 Ibid, s 3AA(2)(b). 246 Ibid, s 3AA(2)(c). 247 Ibid, s 3AA(3). 248 Criminal Organisations Control Act 2012 (Vic), s 3; s 14; s 19. 249 Ibid. 250 Major Crimes (Investigative Powers) Act 2004 (Vic), s 39(1); 39(1A). 251 [1991] HCA 34; (1991) 173 CLR 95 [2]-[3]. 252 Ibid, s 39(3). 253 Ibid, s 39(4).
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‘organised crime offence’, although objectively the continuing systematic abuse of children for sexual gratification fits within the definition. The Chief Examiner is very much a political animal, trained to bite only on command. The very politicalised Victoria police choose the targets, and issue the bite-commands.254
10. Arrest, Imprisonment and Bail.
In Australia, an accused is imprisoned from the moment of their arrest. While the Police have the capacity to grant bail, this capacity is often sold to the accused for money bribes, drugs, or personal favours, but more often for information on the other crimes committed by the accused, or by others against whom they can inform. An accused who after arrest refuses to ‘co-operate’ with Police will be refused Police Bail. An accused charged with a ‘Serious Indictable Offence’ (defined in most states as an offence punishable by imprisonment for 5 years or more) will almost certainly be refused Police Bail, no matter what level or form his co-operation with Police may take. An application for bail may be made to the Local Court or to the Supreme Court. Such applications are almost always refused, when the accused is charged with a Serious Indictable Offence and bail is opposed by the Police. Historically, in Australia, there is no right to bail,255 and in the absence of a United States style Federal system of Habeas Corpus laws, which might permit matters involving summary imprisonment to be considered by the High Court of Australia, (or a new National Intermediate Court of Criminal Appeal manqué),256 little remedy is available to an accused held for long periods in custody without bail, trial or other relief.257 Of course as shown above, none of these rules for the vexation of the general populace apply to ‘special people’ to whom ‘special rules’ apply, and for whom accommodations can, and are always made.
11. Investigation.
Once an accused has been arrested and imprisoned, the task of building a case against him commences. As well as the State and Federal Police Forces, there are several State and Federal Departments and Agencies that have, and actively use investigative powers. Augmenting these are several State and Federal Commissions operating like permanent Royal Commissions
254 For a conspectus of the background to the creation of the Chief Examiner see: Damien B Maquire, ‘Major Crime (Investigative Powers) Act 2004: The Chief Examiner and Coercive Powers’, chapter seven in Ray Bull, Tim Valentine and Tom Williamson (eds) Handbook of Psychology of Investigative Interviewing: Current Developments and Future Directions (John Wiley & Sons, 2009) 109. 255 See Ngoc Tn Chau -v- DPP (1995) 82 A Crim R 339. 256 Mark Clarkson, ‘The Case for a New Australian National Immediate Court of Criminal Appeal’ ResearchGate (online), 8 May 2017
P a g e | 40 Mark Alfred C l a r k s o n _ Adversarial to Inquisitorial P a g e | 41 exercising extraordinary and unlimited powers of investigation, search, seizure and arrest. These include the State NSW Crime Commission, the Australian Crime Commission, and the activities perpetrated à huis clos by the Victorian Chief Examiner.
These Commissions followed the Costigan Commission and the later National Crime Authority (‘NCA’) in a modus operandi that knows no restrain, and obeys no laws or rules. There is no right to remain silent, no right to legal representation, and no protection from the corrupt use of arbitrary power. These Commissions only put to the Prosecutors, and to the Court the material they believe will best secure a conviction – withholding under their ‘Secrecy Provisions’ all material that might confute, impeach or embarrass the Prosecution, or assist the Defence. Material exculpatory of an accused never sees the light of day.258
12. Wives and Family.
The power to investigate is seen in Australia as having no limit. Those cases, (too numerous to list) in the Federal Court seeking to restrain the Costigan Commission, found that Costigan could investigate anyone, for anything, anywhere – even beyond his Terms of Reference.
Because in Australia wives and the other family members of an accused are both competent, and compellable witnesses against an accused,259 Police and Commission investigators feel free to attack the wife and family of an accused. These attacks are formally justified as exercising the capacity, and the need, to investigate whether these potential witnesses might have any evidence of value to the Prosecution. Informally, these attacks are a useful tool to put pressure on an accused to co-operate – or else have investigators go after his wife and family, and to punish them for comforting and supporting their criminal Husband, Father and relative.
Australians have shown themselves to be particularly adept at executing the tactic. The treatment is executed with some success. Two cases come to mind. Darryl Leigh Sorby,260 and Victor Pearce.261 Their wives became Prosecution Witnesses after being compromised morally,
258 Clarkson v DPP [1990] VR 745. 259 Wendy Harris, ‘Spousal competence and compellability in criminal trials in the 21st century’ (2003) 3 Queensland University of Technology Law and Justice Journal 274, [III]. 260 R v Sorby [1986] VR 753; Pamela Pinto and David Wilson, ‘The Days of Mr Midnight’, The Age (online), 9 August 1984
P a g e | 41 Mark Alfred C l a r k s o n _ Adversarial to Inquisitorial P a g e | 42 sexually and financially. Nothing prison officers, police officers, prosecutors and Judges like more in Victoria than having sex with the wives and relatives of the inmates they have placed in custody.262 Especially young good-looking ones. It is detection-free and punishment-free crime. To whom are the victims going to complain? It is not gender specific.263 It is about the exercise of absolute power the perpetrators wield.264 All ‘lesser evils’ sanctioned and required for the ‘greater good’ under the Summun bonum of Roman Catholic Law and Doctrine, and showing that in bringing ‘criminals’ to justice nothing is sacred, no one is barred and no tactic is too low.
13. Alibi Witnesses.
The rules and protocols surrounding alibi witnesses serve as one poignant example of the steps taken in Victoria in the move from the adversarial to the inquisitorial criminal justice model. An accused cannot advance an alibi in support of the defence, without leave of the Court, unless the name and particulars of the alibi witnesses are first provided in a formal Notice of Alibi to the police.265 Once the Notice of Albi is given, a person acting for the prosecution or a police officer must not ‘communicate with that person directly or indirectly with respect to the charge or any related matter before the conclusion of the proceeding, including any rehearing, without the consent and presence during the communication of the legal practitioner representing the accused; or if not legally represented, the accused.266
The Notice of Alibi must not only contain the matters set out in Criminal Procedure Act 2009 (Vic) s 51, ss (5)(a) and (b), but importantly, it must also state the facts upon which the accused relies to establish the alibi. 267 Any failure to meet the formalities prescribed for the Notice of Alibi, which are strictly applied against an accused, will result in the Notice of Alibi being set aside, and the protection otherwise mandated by Criminal Procedure Act 2009 (Vic) s 52 being vitiated.268 In most cases, the prosecution, and the police simply ignore the prohibition, no doubt applying that ‘accident of evil means’ to ‘the fulfilment of a just end’.269 A long history of the abuse of the alibi witnesses provisions gives rise in the criminal milieu to a well-founded fear
262 Barbara Masser, G Tendayi Viki, and Clair Power, ‘Hostile sexism and rape proclivity amongst men’ (2006) 54 (7-8) Sex Roles 565. 263 Richie McMullen, Male rape: Breaking the silence on the last taboo (Heretic Books, 1990). 264 William M Shields, and Lea M Shields, ‘Forcible rape: An evolutionary perspective’ (1983) 4 (3) Ethology and Sociobiology 4 115; Paul Richard Wilson, The other side of rape (Australian Government Publishing Service, 1977). 265 Criminal Procedure Act 2009 (Vic) s 51. 266 Ibid, s 52 (1). 267 Ibid. 268 Ibid. 269 Moti above N 179 [106].
P a g e | 42 Mark Alfred C l a r k s o n _ Adversarial to Inquisitorial P a g e | 43 that the police will do their best to ‘nobble’ any alibi that may be disclosed.270 This may encourage an accused not to give the Notice of Alibi, but seek leave thereafter to call the alibi witnesses.271
The prohibition on communication by prosecution or police with alibi witnesses does not apply to ‘a person who the accused has been notified may be called as a witness for the prosecution at the summary hearing’,272 and may not apply to anyone the prosecution may later decide to call for the prosecution.273 The prohibition does not appear to apply to the Chief Examiner.274 The decision in R v Rich (Ruling No 28),275 was run on basis that the ‘communications’ between the accused and the alibi witness were not covered by legal professional privilege, and did not actually consider whether the Chief Examiner was prohibited from examining the alibi witness, but seems to have proceeded on the basis that he was not constrained from doing so. It is evident that in that case the initial statements made by alibi witness Andrusko were fatal to the prosecution case, but after further questioning by police, and after being ‘questioned at length’ by the Chief Examiner,276 ‘he no longer adhered to the accuracy of what he had said in his initial statement on 23 March 2005’.277 The police denied that they ‘improperly “dismantled” the alibi’,278 but maintained that they merely ‘assisted’ Andrusko because he realised he ‘was in some difficulty and wished to recant’.279
In this manner, Victoria Police, aided by the Chief Examiner ‘precondition’ the evidence later to be called at trial, so that only the evidence that will best achieve a conviction is led, and evidence exculpatory of an accused is ‘lost’,280 or ‘dismantled’. Neither prosecution, nor defence called Andrusko.281 He was a spent force. The Court seemed to accept that Andrusko was ‘overborne’ by the Chief Examiner and ‘had been prepared to perjure himself as a result of being overborne’.282 The Chief Examiner might have been particularly strident in that case – another witness (who may have been particeps criminis in the offences charged) was ‘examined’, and although he gave some evidence at the trial, later committed suicide.283
270 R v Beljajev [2006] VSC 413; 14 VR 241; 166 A Crim R 557 [8]. 271 R v Rich (Ruling No 26) [2009] VSC 159 [35]-[36]. 272 Ibid, s 52 (2). 273 R v Sorby [1986] VicRp 77; [1986] VR 753; R v Beljajev [2006] VSC 413; 14 VR 241; 166 A Crim R 557. 274 R v Rich (Ruling No 28) [2009] VSC 162 [7]. 275 [2009] VSC 162 [7]-[8]. 276 R v Rich (Ruling No 9) [2008] VSC 453 [4]-[11]. 277 Ibid [10]. 278 R v Rich (Ruling No 28) [2009] VSC 162 [8] 279 Ibid. 280 Clarkson v DPP [1990] VR 745. 281 R v Rich (Ruling No 9) [2008] VSC 453. 282 Ibid [46]. 283 Rich v The Queen [2014] VSCA 126; 43 VR 558; 312 ALR 429; 286 FLR 251, [44]-[50].
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14. Indictment.
The Grand Jury returning a Bill of Indictment against an accused was a feature of English Justice brought to the Australian Colonies, but quickly abandoned. In Victoria, anyone who could not persuade the Crown to present an accused for trial could Petition the Full Court to convene a Grand Jury.284 The now repealed s 354, of the Crimes Act 1958 (Vic) provided the Full Court with no discretion, but a Grand Jury of 23 men was required to be convened: ‘Upon the application of any person supported by an affidavit disclosing an indictable offence’. Similar residual Grand Jury powers existed in other States, including NSW, but were seldom used. The Grand Jury has now been abolished in all Australian jurisdictions.285 An accused complaining that they have been unjustly arrested, and wishing to contest the evidence against them have no recourse before a Grand Jury. Nor do those seeking to have persons tried for criminal offences, whom the police will not charge, nor DPP bring to trial.
The facts relating to the last successful application to the Full Court of the Supreme Court of Victoria for a Grand Jury are interesting. The Full Court ordered the Grand Jury be empanelled, then allowed, but ultimately rejected a challenge to that order by John McArdle, the Solicitor affected by the order.286 The facts are otherwise set out in full below from the report on the matter by the Legal Ombudsman to the Attorney-General of Victoria.287
In 1984 Mr John McArdle was charged with conspiracy and one count under Section 148 of the Crimes Act in that he received funds on behalf of Mr Legge and that he failed to account to Mr Legge for those funds. Mr McArdle was committed for trial in the County Court in 1984. The Director of Public Prosecutions entered a nolle prosequi. In November 1986, the informant, as a private citizen, requested the Supreme Court to empanel a Grand Jury. The Grand Jury returned "true bills" meaning that Mr McArdle had to stand trial. At the trial no evidence was led. Entries of not guilty were made upon the record in respect of the count contained in each indictment (references omitted).
The matter did not rest there. The Full Court subsequently ordered that the reasons for the entry of the nolle prosequi, and the correspondence related thereto, be released pursuant to the Freedom of Information Act 1982 (Vic), finding that where persons had taken steps to bring matters of private concern into the public domain, the granting of public access to documents
284 Byrne v Armstrong (1899) 25 VLR 126. 285 Elise Histed, ‘The introduction and use of the grand jury in Victoria’, (1987) 8 (2) Journal of Legal History 167. 286 Prue Innes, ‘Court orders grand jury called’, The Age, 30 August 1986, 19. 287 ‘Report of The Legal Ombudsman: In The Matter Of A Complaint By Ronald V Legge’ (Report to the Attorney-General, Victoria, October 1977: Tabled in Parliament No 62, Session 1996/97) 11
P a g e | 44 Mark Alfred C l a r k s o n _ Adversarial to Inquisitorial P a g e | 45 concerning those matters, would not involve an unreasonable disclosure of personal affairs information.288 On 11 April 1990, ER Smith, the member for Waverley raised the matter in the Legislative Assembly,289 detailing the close relationship between all the persons involved and the accused, and questioning the decision-making processes. The term ‘tribe’ was not mentioned.
In most Australian States, the role of the Grand Jury was for some years taken over by a Magistrate. At a Committal Proceeding, the accused having been presented with some of the statements, said to be those of the witnesses against him, could cross examine those witnesses, and test the veracity of the case against him. The Magistrate, using various tests, would then, if he found the case against the accused sufficient in law, commit the accused for trial.290 However, by successive legislative amendments, an accused now needs leave to cross examine the witnesses against him.291 The tests differ for ‘victims’,292 and other witnesses, but leave is so rarely granted that Defence Counsel now seldom bother to make the application, persuading their clients to accept the ‘Hand-up-Brief’.293 Legal Aid funding is seldom available for committal proceedings.294
The Hand-up-Brief is often given to an accused in the first, or second year of imprisonment. It is a composite of the various questions and answer interviews conducted by investigators, rendered into a statement form, adopted by the witness against an accused, and said to represent the evidence that may be given against him. It sometimes contains copies of documents the Prosecution may rely upon. The committal proceeding has largely now become the forum at which the prosecution attempt to negotiate guilty pleas.295
288 Director of Public Prosecutions v Smith [1991] VR 63, 69. 289 Victoria, Parliamentary Debates, Legislative Assembly, 11 April 1990, 1000-1005 (E R Smith). 290 David Breretont, and John Willis, ‘Evaluating the committal’ (1991) 24 (3) Australian & New Zealand Journal of Criminology 219. 291 David Neal, ‘A National Movement’ (1983) 8 Legal Service Bulletin 178. 292 Sybil Hardie, ‘The Victorian Law Reform Commissioner's Working Paper on Rape Prosecutions’ (1974) 1 Legal Service Bulletin 366. 293 Kerry Stephens, ‘Committals in Victoria: a Police Perspective’ in Proceedings of a Conference held 1-2 May 1990, (Australian Institute of Criminology, 1991)
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The Hand-up-Brief is put together by the Investigators, and sent to the DPP, where it may be reviewed. Once Prosecuting Counsel is briefed (who may be a Prosecutor for The Queen, a statutory office in most States), the Hand-up-Brief is reviewed by the Prosecuting Counsel with a view to fixing any perceived weaknesses in the Prosecution case. Witnesses may be re-interviewed to see if evidence in favour of the prosecution can be boosted, and evidence exculpatory of an accused ‘dismantled’. The Chief Examiner may be used for this purpose.
Once the Prosecutor signs the Indictment (or Presentment), the accused is indicted. The accused takes no part in this process. It is only at the trial, that an accused first gets a limited capacity to test the evidence, by taking what is now seen as the unwarranted high-handed step, of asking questions of the witnesses against them. The function of a Magistrate reviewing the evidence at a Committal Proceeding is now seen as an ‘historical anachronism’ and not to be used.296
15. Speedy Trial.
In Clarkson v Director-General of Corrections,297 Tadgell J, delivering the judgment of the Full Court cited with approval the observation of Mann CJ in R -v- Greenham,298 that the presentment of persons for trial is generally left to the Crown as it thinks convenient, adding ‘It is much the same now as then’. Thirty years later, nothing much has changed. In Jago v District Court,299 it was recognised that there is no right to speedy trial in NSW. The same applies throughout Australia. In most States, an accused can expect trial in the second or third year of their imprisonment.
Notionally the provisions of the Habeas Corpus Act 1640 (Imp), and Habeas Corpus Act 1679 (Imp), remaining in effect in Victoria, pursuant to the Imperial Acts Application Act 1980 (Vic), demand indictment and trial, or bail within two sittings of the Supreme Court. However, Kaye J found that these Imperial provisions conflicted with the modern legislative scheme, including provisions for bail, and no longer had application in Victoria.300 In any event, Kaye J found that Community Welfare Services Act 1970 (Vic) s 118, which provided that ‘every prisoner who is
296 Potier v DPP [2001] NSWSC 514; Potier v Magistrate Maughan [2004] NSWSC 590; Potier v Magistrate Huber and Others [2004] NSWSC 720. 297 [1986] VR 425 (CA), 436. 298 [1940] VLR 236, 239. 299 (1989) 168 CLR 23. 300 In the matter of an Application for the award and grant of a writ of Habeas Corpus by Mark Alfred Clarkson (Unreported, Supreme Court of Victoria, Kaye J, 12 July 1984) 2-4; See also Day v The Queen (1984) 58 Australian Law Journal 53, 56.
P a g e | 46 Mark Alfred C l a r k s o n _ Adversarial to Inquisitorial P a g e | 47 in custody, whether under a sentence of imprisonment or on remand awaiting trial, shall be deemed to be in the legal custody of the Director-General’ operated to prevent applications for writs of habeas corpus, which depend for their jurisdiction on the unlawfulness of the detention.301
In Victoria, ‘deeming the unlawful lawful’, which is considered a sin under Islam, emulating ‘the evil followers of the practice of ibāḥa’,302 probably follows the notion derived from the Summum bonum that ‘the meaning of “lawful” depends on its context’, enunciated by the Roman Catholic the Honourable Sir Gerard Brennan AC KBE QC, (as he then was) Chief Justice of the High Court of Australia in Taikato v R.303 Preventing Courts from examining the lawfulness of detention on Habeas corpus because all custody is deemed lawful appears to stretch the intention of deeming provisions beyond the ‘hypothesis’ they are intended to convey.304 Deeming something to be that which it is not is pure Papal law.
The next year, a further application for Habeas corpus was made.305 On 11 September 1984, the Crimes Procedure Regulations 1984 (Vic) had come into force, setting time limits, within which the Crown must present an accused for trial, and commence the trial (and for extensions of that time).306 In refusing the application, the Honourable Justice Sir James Gobbo, AC, CVO, KStJ, QC followed the decision of Kaye J, and also refused to consider extended detention in the filth and squalor of the notorious remand yards at Her Majesty’s Metropolitan Reception Prison at Pentridge was unlawful finding: ‘resort to an attack upon the custody in the remand yard as cruel and unusual punishment proceeds upon the basis that that custody can be disturbed even where it is lawful custody. I am unable to see how that argument can be sustained’.307 It is plain that the Honourable Justice Sir James Gobbo, AC, CVO, KStJ, QC had never seen the filth and squalor of the notorious remand yards at Her Majesty’s Metropolitan Reception Prison at Pentridge, where the daily struggle was seeing how life could be sustained.
No application by the prosecution for an extension of time to present for trial, or commence the trial of an accused has ever been refused. Defence Counsel do not even bother to raise the point
301 Ibid. 302 George E Lane, Early Mongol Rule in Thirteenth-Century Iran: A Persian Renaissance (Routledge, 2003) 290. 303 (1996) 186 CLR 454, 460. 304 Oliver Jones, Bennion on Statutory Interpretation (LexisNexis, 6th ed, 2013) 815. 305 In the matter of an Application for Habeas Corpus by Mark Alfred Clarkson (Unreported, Supreme Court of Victoria, Gobbo J, 8 February 1985). 306 Ibid, 1-2. 307 Ibid, 6.
P a g e | 47 Mark Alfred C l a r k s o n _ Adversarial to Inquisitorial P a g e | 48 because the response from the Court is always an order granting an Extension of Time. Tadgell J, in Clarkson v Director-General of Corrections,308 also observed that: ‘Conventionally, the Court makes orders every month under s. 359, of the Crimes Act on the Crown's application without prior notice to the accused and these seldom excite comment’. Perhaps His Honour recognised that ex parte Crown applications for orders that are never refused are just not exciting.
16. Right to Counsel.
Before it was amended to counter the effect of Dietrich,309 the Crimes Act 1958 (Vic), s 397, was expressed in similar terms to the 6th Amendment to the United States Constitution.310 The High Court refused to read the due process requirements of the Imperial Acts transcribed in the Imperial Acts Application Act 1980 (Vic), together with the Crimes Act 1958 (Vic), s 397, in the same way as the United States Supreme Court read together the 5th, 6th and 14th Amendments to the United States Constitution to give a right to Counsel.311 As an adjunct to the right to a fair trial, Australians now have a right to an adjournment, but not to Counsel.
308 [1986] VR 425 (CA), 436. 309 (1992) 177 CLR 292. 310 6th Amendment: ‘In all criminal proceedings, the accused shall enjoy the right .... to have the assistance of Counsel for his defense’. The Crimes Act 1958 (Vic), s 397, did provide: ‘Every accused person shall be admitted after the close of the case for the Prosecution to make full answer and defence thereto by Counsel’. 311 The 6th Amendment right to Counsel was interpreted by early US judgments as not including a guarantee that counsel would be furnished at State expense: Houk v Montgomery County Commissioners 14 md App; 41 NE 1068 (1895), even when the charge was murder: People v Moice 15 Cal 329 (1860), and that the Courts had no power to appoint counsel to defend at State expense a person charged with a crime: McDonald v State of Wisconsin 80 Wis 407; 50 NW 185 (1891); Baker v Same 84 Wis 584; 54 NW 1003 (1891), so that counsel appointed by the Court did not get paid. In Powell v Alabama 287 US 45 (1932) the US Supreme Court found that indigent illiterate blacks charged with the rape and murder of a white girl in Alabama who were denied the appointment of Counsel paid for at State expense were denied due process of the law. The due process guarantee was read together with the counsel clause combining the provisions contained in the 5th, 6th and 14th Amendments to found this interpretation. After this decision, there was no general right to counsel. Only those suffering the disability of language, literacy and poverty charged with capital or serious offences could claim the right to be provided with counsel at State expense. In Johnson v Zerbst 304 US 458 (1938), the US Supreme Court held that the 6th Amendment Counsel Clause not only created a right to make use of a retained lawyer in Federal Criminal proceedings, but mandated the assignment of Counsel for an accused otherwise unable to afford legal assistance, upsetting a long prevailing understanding to the contrary. However, in Betts v Brady 316 US 455 (1942), the US Supreme Court refused to hold that the 14th Amendment extended to the States the full 6th Amendment rule imposed on Federal Criminal Courts in Johnson v Zerbst (supra), finding that due process did not require the appointment of Counsel for indigent defendants in every State felony trial in the absence of special Powell v Alabama (supra) special circumstances of mental incapacity, inexperience or language that placed the defendant at a serious disadvantage in maintaining his defence. Even accepting that in Australia there was no general right to counsel, the Dietrich case appeared to fall under the Powell v Alabama (supra) ‘exception’. Not only was Olaf Dietrich indigent, he was not capable of conducting his own trial because he suffered from a clinically diagnosed ‘personality disorder’ that manifested itself in irrational burst of fury, that led him to scream and yell and throw things. Reports from psychologists
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As might have been expected, the ruling in Dietrich is slowly being eroded by decisions that allow trial without Counsel where the interests of justice allow, and such a course would not result in an unfair trial.312 In Victoria, legislative amendments allow the Court of Trial to order the Legal Aid Commission to provide Counsel,313 but Courts have refused to grant legal aid, where justice can still be done following such a course. The rights to legal aid, and Counsel are not absolute.314 Justice can still be served in some selected cases by an accused facing trial 315 without Counsel. The Victorian Court of Appeal found in Slaveski v Smith & Anor, that:
Certainly, it is more difficult for a court to do justice when a party is unrepresented and it is usually slower and more stressful for litigants. Often, too, a lack of legal representation means that a party’s defence is not put as completely or otherwise as well as it might be by counsel. A trial of that kind is imperfect. But a trial does need to be perfect to be fair. As Brennan J explained in Dietrich, it is only where the lack of representation results in a miscarriage of justice that the trial is unfair’ (citations omitted).316
Other State Appellate Courts, in New South Wales,317 Queensland,318 and Western Australia,319 have upheld convictions obtained in trials without Counsel, where no miscarriage of justice actually occurred.320 Sentencing an unrepresented accused summarily to imprisonment, without any formal plea in mitigation, or presentence reports has likewise been found not necessarily unjust, or unfair.321 Under the Summum bonum ‘fair’ is a relative, variable concept – a style of justice that allows for less than ‘perfect’.
supported the view that Dietrich’s personality disorder which manifested itself in these Tourette syndrome style outbursts fell far short of the definition of insanity or mental illness needed for him to demand a verdict from a special jury as to his fitness to stand trial. However, the High Court of Australia did not engage in the level of reasoning required to properly consider this matter, and may have lacked the intellectual capacities, and depth of legal education required to do so. In Gideon v Wainwright 316 US 768 (1942) the US Supreme Court took the process of development one step further finding that Counsel should be provided at State expense for all those indigent accused facing serious charges. The development continued though Wolf v Colorado 338 US 25 (1949); Arsinger v Hamlim 407 US 25 (1972), and Scott v Illinois 440 US 367 (1979). The present position in the United States demands Counsel be provided at State expense for all criminal trial where imprisonment results. 312 Asher Flynn, Jacqueline Hodgson, Jude McCulloch, and Bronwyn Naylor, ‘Legal aid and access to legal representation: Redefining the right to a fair trial’ (2016) 40 (1) Melbourne University Law Review 207. 313 Bayley v Nixon and Victoria Legal Aid [2015] VSC 744. 314 Slaveski v Smith & Anor [2012] VSCA 25; 34 VR 206; 218 A Crim R 252, [27]. 315 Alana Piper, and Mark Finnane, ‘Access to legal representation by criminal defendants in Victoria, 1861-1961’ (2017) 40 University of New South Wales Law Journal 638. 316 [2012] VSCA 25; (2012) 34 VR 206; 218 A Crim R 252, [52]. 317 El-Hilli v R; Melville v R [2015] NSWCCA 289, [12]-[21]; Clark v R [2014] NSWCCA 236 [85-[86]. 318 R v Bartzis [2012] QCA 225, [37]; R v Huston; R v Fox; R v Henke [2011] QCA 349, [201]-[220]. 319 O'Connell v The State of Western Australia [2012] WASCA 96, [97-[138]. 320 McGuinness v Heffernan [2017] WASC 40. 321 O'Connell v The State of Western Australia [2012] WASCA 96, [171-[182].
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17. Trial-by-Jury.
At Federal level, Trial-by-Jury is enshrined in the Australian Constitution.322 However, as Federal offenders are tried in the Court in the State in which the offence arose, State trial laws, including the provisions relating to Trial-by-Jury, apply to Federal Offences.323 The erosion of, and attacks upon Trial-by-Jury have continued for many years. The number and variety of challenges by the Defence to potential jurors has been progressively reduced.324
The Prosecution, to ensure that no one not ‘qualified’ to serve as a juror gets into the jury panel, conducts with the assistance of the Sheriff and Police, ‘background checks’ on potential jurors.325 This provides the Prosecution with valuable information as to who it should best select for jury service. The Defence has no such information. Although the Defence has ‘challenges for cause’, it is unable to effectively exercise them, because it is unable to get any information that may found such a challenge.326 Unless a juror is immediately recognised as knowing the accused or the Police, or witnesses in a case, no challenge for cause can be made. The Crown can ask any juror to ‘stand aside’ without assigning any reason for that decision, although that decision is usually made based on information gathered during the enquiries the prosecution has made.327 The polling or questioning of the Jury Panel by the Defence as permitted in the United States, is strictly prohibited in Australia.328
In the quest for the ultimate Police State in Australian polities that permit such a course, but not (as yet) for Federal Offences, 329 or in Victoria,330 Defence Counsel have taken up the practice, as a cause célèbre, to strongly advising those clients who just refuse to plead guilty despite strong advice to the contrary, to demand a trial by Judge alone without a jury.331 The clients are told that juries are uncertain fickle things and that the results can never be accurately predicted.332 This advice is, of course, completely correct, as far as it goes. Despite the almost
322 Commonwealth of Australia Constitution Act 1900 (Imp) 63 & 64 Vict, c 12, s 9, s 80. 323 Judiciary Act 1903 (Cth), s 68. 324 Jacqui Horan, and Jane Goodman-Delahunty, ‘Challenging the peremptory challenge system in Australia’ (2010) 34 Criminal Law Journal 167, 172. 325 Ibid 170. 326 Ibid 171. 327 Ibid 172. 328 Ibid 178-179. 329 Brown v The Queen (1986) 160 CLR 171. 330 Vicki Waye, ‘Judicial Fact-Finding: Trial by Judge-Alone in Serious Criminal Cases’ [2003] 27 Melbourne University Law Review 423, 425. 331 Jane Goodman-Delahunty, ‘The jury box and the urn: Containing our expectations’ (2015) Pandora's Box 9. 332 Jodie O'Leary, ‘Twelve angry peers or one angry judge: An analysis of judge alone trials in Australia’ (2011) 35 (3) Criminal Law Journal 154.
P a g e | 50 Mark Alfred C l a r k s o n _ Adversarial to Inquisitorial P a g e | 51 insurmountable loading of the dice in all respects towards the Prosecution, and despite the joint efforts of Prosecuting Crown Counsel, Prosecuting Judge and Prosecuting Defence Counsel, juries sometimes inexplicably acquit the accused.
A trial by Judge alone is much less fickle, more certain. No accused facing trial by a Judge alone has ever been acquitted. Except for Western Australian, where Crown Prosecutor Lloyd Rainey, was acquitted by Martin J, on 1 November 2012 of murdering his wife, in a Judge alone trial;333 but that case is thought to be a real exception, unlikely to be repeated. A special case. The tribe protecting one of its own.
However, the sex abuse charges against His Eminence Cardinal Dr George Pell have fuelled calls for Judge-only Trials to be permitted in Victoria on the basis that he may not be able to gain a fair trial.334 In the special circumstances of the Pell case, the tribe apparently believes it will be able to better control the verdict rendered by one Judge-alone to deliver an acquittal, than attempts to control those fickle jurors, who despite every effort to the contrary may just convict His Eminence. Perhaps otherwise, the legal establishment believe that if they can get enough accused to demand a trial by Judge alone, they will be able to cite the success of this procedure when they take away Trial-by-Jury as being an ‘historical anachronism’ no longer needed. The tribe needs to control the process absolutely to procure both the convictions obtained against the masses, and the acquittals needed to favour ‘special people’.
18. The Chameleon Rule.
The ‘Chameleon Rule’ demands that Australian law, as applied, change according to the background and circumstances of the case before the Court. The Chameleon Rule recognises that in Australia, the law is a fluid moving thing and that no statute is completely restrictive nor precedent absolutely binding. Statutes are ‘interpreted’ and case law ‘distinguished’ or ‘not followed’ to allow the law as applied to be set afresh, recast according to the individual circumstances of the case.
333 Joanna Menagh, ‘Corryn Rayney Murder: How did the case against Lloyd Rayney unfold?’ ABC News (online),
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19. The Proviso.
‘The Proviso’ also called in the criminal argot the ‘Guilty anyhow Rule’ is a feature of Appellate Criminal Courts in all Australian States. This provision allows a Court of Criminal Appeal to dismiss an appeal even if it finds that errors of law were perpetuated during a criminal trial, if it also considers that ‘no substantial miscarriage of justice has actually occurred’.335 In Victoria, ‘the proviso’ was removed and the onus cast upon the appellant to establish a substantial miscarriage of justice as well as the substantive grounds of appeal.336 The term ‘substantial miscarriage of justice’ appears to have been interpreted as meaning that the appeal should be dismissed if the Court thinks that the accused was ‘guilty anyhow’. The logical basis for the non-de-plume is that if the accused is ‘guilty anyhow’ of something, then no substantial miscarriage of justice could occur, if the accused was convicted of something, or other, even if not the crimes with which they are charged, and whatever the means used to obtain those convictions. The Proviso flows from an application of the variable, relative morality of the Summum bonum of Roman Catholic Law and Doctrine. Back to the basket of evils, where everything is weighted and balanced. There are no absolutes.
The Proviso has long been exploited by Trial Judges who remain confident that an application of the Chameleon Rule will always be supported at appellate level by an application of The Proviso allowing convictions obtained in error of law to be maintained on appeal.337 In this way, the criminal offence has become in effect the universal ‘status offence’. Judges, prosecutors, police, and defence counsel are apparently able to tell intuitively who is a ‘crim’ and fiddle the verdict needed to lock them up. However, as shown above, the system is equally capable of fixing things so those who otherwise rule over Australians can ensure that ‘special people’, who remain ‘in favour’ escape the more strident consequences of their transgressions. Judges are reasonably intelligent people, and do not have to be constantly reminded who appointed them. They remain tribal apparatchiks.
335 The standard wording adopted from the Criminal Appeal Act 1907 (UK). 336 Criminal Procedure Act 2009 (Vic) s 276. 337 Bibi Sangha, and Robert Moles, ‘Maccormick's theory of law, miscarriages of justice and the statutory basis for appeals in Australian criminal cases’ (2014) 37 University of New South Wales Law Journal 243.
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20. Defendant Right of Discovery.
In Alister v R,338 the High Court of Australia set aside the previous law allowing government agencies to absolutely retain material behind secrecy provisions without question. On the return of a subpoena duces tecum the documents are produced to the Court; the Court inspects them; and then decides whether they should be shown to the applicant, or what further action should be taken. However, for the defence, issuing a subpoena duces tecum for material relevant to the defence, and perhaps exculpatory of an accused is problematic, even when relying upon the High Court decision in Alister v R.339 The defence must be able to describe with some precision the material sought, and specify which entity is holding that material in its possession or power. For the existence of specified documents, the defence must have ‘some concrete ground for belief which takes the case beyond a mere “fishing” expedition’.340 However, as they say in the common vernacular: ‘You don’t know, what you don’t know’.
In Clarkson -v- DPP and Others,341 the accused produced to the Full Court material procured pursuant to freedom of information requests, exculpatory of the accused. In 1987, Counsel for the DPP had told the Full Court that this same material had been destroyed in 1981, and was not available at the trial. This claim by Crown Counsel was confuted when some of the documents were discovered in a box surrendered during freedom of information requests. The only ‘accident’ demonstrated was that the documents ever appeared. The Crown intended that they never be found. The Full Court was prepared to allow the accused to reagitate the convictions on Certiorari. However, despite accepting that prosecutorial misconduct had been proven, the Full Court refused to make a general order for discovery.
Additional material in that case exculpatory of the accused, hidden behind the Costigan Commission secrecy provisions, was sent initially to the NCA. Now ‘custody and control of the records of the Costigan Royal Commission lies with the Australian Government’ and ‘the arrangements agreed between the Australian Government and the Victorian Government in 1984 … provide for consultation … when a request for access … might affect the interests of Victoria’.342 No doubt embarrassing corrupt police and prosecutors ‘might affect the interests
338 [1984] HCA 85; (1984) 154 CLR 404. 339 Alister v R [1984] HCA 85; (1984) 154 CLR 404. 340 Ibid [7]. 341 [1990] VR 745, 757-758; for the background see: R v Clarkson [1987] VR 962, 964-967. 342 Letter from G D Webber, Australian Crime Commission to Mark Clarkson, 30 August 2007 (ACC Ref: 2007/2092859)
P a g e | 53 Mark Alfred C l a r k s o n _ Adversarial to Inquisitorial P a g e | 54 of Victoria’. The Department of Prime Minister and Cabinet was initially ‘responsible for custody and control of the records of the Costigan Royal Commission’, 343 but were then sent to the National Archives of Australia, where they were embargoed behind the ‘30-year rule’, which notionally expired in 2014. However, the National Archives then advised that before any material from ‘the 90 cubic metres of material stored in Melbourne’ could be accessed it needed first to be ‘examined’.344
Naturally, constraints upon budgets and similar impediments affecting the Australian Public Service do not permit resources to be devoted to ‘examining’ material immediately it might otherwise be accessible, and as of 13 August 2017 almost all the material relating to the Costigan Commission had not yet been examined.345 After examination, the objections to release by the Commonwealth and Victoria would then need to be considered. In other words, the exculpatory material will never, ever be released. This is what Geoffrey Chettle (‘Chettle’), Counsel for the DPP sought to achieve in the matter, which led to him facing proceedings before the Victorian Bar Disciplinary Tribunal for failure to disclose exculpatory material to the defence.346
The Honourable Elizabeth Curtain, Counsel for the DPP in the trial and appeal of the matters considered in Clarkson -v- DPP and Others,347 was thereafter appointed to the County Court Bench, and later the Supreme Court bench, from whence she retired to become Chairperson of the Adult Parole Board, and is now Judge in Resident at the Melbourne Law School.348 She is said to offer law students ‘insights into the working of the courts and the role of Australian judges’.349 No doubt these insights will include applying that ‘accident of evil means’ to ‘the fulfilment of a just end’.350 Chettle after being dealt with by the Victorian Bar Disciplinary Tribunal,351 was thereafter appointed to the County Court bench, but did not mention the matter
343 Ibid. 344 Email from J M Smith, National Archives of Australia to Mark Clarkson, 24 November 2014 (NAA Ref: 2014/markc64). 345 National Archives of Australia, Record Search – Costigan Royal Commission (13 August 2017)
P a g e | 54 Mark Alfred C l a r k s o n _ Adversarial to Inquisitorial P a g e | 55 amongst the other ‘defining moments’ in his legal career.352 The tribe looks after its own. Curtain, Lasry and Chettle were all inculcated early in the ways of the tribe, and the application of the Summum bonum as protégés of tribal Capo John Hassett – some of the activities of whom are detailed hereunder. Melbourne Law School is a proving ground for the elitist sons and daughters of corruption, and Curtain well suited to be their mentor.
The rule refusing a defendant in criminal proceedings a general right of discovery, prevalent in Australia, has led to much abuse, particularly in those cases touched by the Costigan Commission, the NCA, the later commissions, and the Chief Examiner. Whilst it is generally accepted that Prosecuting Counsel have a duty to disclose to the Defence, evidence and documents contained in their brief exculpatory of an accused, or which tends to confute the sworn evidence of Crown witnesses, the Rule is not a robust one much ignored in practice, highlighted only when a Prosecuting Counsel gets caught not complying with it.
Some background to the Chettle matter,353 shows how the rule is abused in practice, and leads to miscarriages of justice. Several applications for documents had made pursuant to the Freedom of Information Act 1981 (Vic) and the Freedom of Information Act 1983 (Cth), but were refused.354 During 1988, Geoffrey Lawrence, a Solicitor in the employ of the Victorian State DPP complained to the Director that Chettle, then of Counsel, had asked him to send documents exculpatory of a defendant, gathered by the Costigan Royal Commission, and which had been in the brief of Counsel at the trial, but not disclosed to the defence, to the NCA where all of the Costigan Royal Commission material was held, pursuant to Section 55 of the National Crime Authority Act 1984 (Cth), so that they could be hidden behind the secrecy provisions of the NCA. No doubt Chettle thought he was just applying that ‘accident of evil means’ to ‘the fulfilment of a just end’.355
Lawrence complained that Chettle had said: ‘Send these to the NCA, where they can be hidden behind the secrecy provisions because if the Full Court see these documents they will have my balls and yours will be next’. However, Lawrence apparently valued his gonads highly, and was not prepared to risk them for Chettle. Chettle was later charged by the Victorian Bar Ethics Committee with disciplinary offences. He was dealt with by the Victorian Bar Disciplinary
352 New Lawyer Language, ‘The Honourable Judge Geoffrey Chettle’ on New Lawyer Language Interviews
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Tribunal (‘VBDT’). After a 5-day trial where he was represented by Robert Richter, One of Her Majesty’s Counsel, and Aaron Schwartz, of Counsel, Chettle was convicted of disciplinary offences and reprimanded. The VBDT found that despite his denial during his sworn evidence, Chettle had uttered the words attributed to him by Lawrence.356 A statement of the substance of the charge, the name of the Defendant and the order made by the Tribunal was published in the 1989 Annual Report of the Victorian Bar Council.357 Chettle was thereafter appointed a Judge of the County Court of Victoria a position he maintained until his retirement. The tribe looks after its own.
Despite these events being part of the background put to the Full Court in support of an application for an order for general discovery, that order was refused.358 The problem is exacerbated by the fact that although Prosecutors for The Queen are in some jurisdictions a statutory appointment resplendent with a basket of duties and protocols demanded by tradition, their instructions usually come from the office of a DPP. The DPPs are only one department or agency of the Crown that may have in their possession or power, evidence or documents relevant to the criminal case. Whilst Prosecuting Counsel have a loosely defined duty to disclose anything in their brief that may assist the Court, and the Defence,359 that duty does not extend to that material that may be in the possession or power of the various Crimes Commissions, Chief Examiner, DPPs, Department of Immigration and Border Protection, the Federal Police, State Police Services, other government departments or agencies, and certainly not to private persons or entities. The Police and those instructing Prosecuting Counsel, usually prevent Prosecuting Counsel being embarrassed by moral dilemmas, or into having to make ethical decisions, by ensuring any such material is not included in their brief. In any event, the defence ‘it was not in my brief’ seems to be readily accepted by the Victorian Bar Disciplinary Committee on the word alone of Counsel.
A complaint to the Victorian Bar Disciplinary Committee about the conduct of Douglas Raymond Meagher, One of Her Majesty’s Counsel at a bail application. 360 In his written response to the complaint, Meagher denied exculpatory material was in his brief. The exculpatory material was fatal to the way the prosecution framed, and supported its opposition
356 Chettle, above N 346, 10-20. 357 Annual Report 1st September 1988 – 31st August 1989 (Victorian Bar Council, September 1989) 14
P a g e | 56 Mark Alfred C l a r k s o n _ Adversarial to Inquisitorial P a g e | 57 to bail. Meagher denied knowledge of evidence given before the Costigan Commission, where he appeared as Senior Counsel. Meagher was also intimately involved in the planning, management and execution of the Costigan Commission objectives. In answering the complaint, Meagher said he was not at the Costigan Commission on the day the exculpatory evidence was given, and was not otherwise aware of the material. No Notice of Alibi was required of Meagher, and none was given. On one view, what Meagher said in answer to the complaint defies belief, but his statements were accepted without question, and perhaps too readily accepted.361
The right to a fair trial guaranteed by Article 14, of the ICCPR,362 would impose upon Australia a broader notion of fairness than that which has traditionally applied. Article 14 mirrors Article 6, of The Convention for the Protection of Human Rights and Fundamental Freedoms363 (‘ECHR’) and the ruling of the European Court in Teixeira de Castro v Portugal,364 has many implications for Australia extending the notion of fairness into the pre-trial phase perhaps imposing new standards for criminal investigation and evidence gathering over and above those delineated in Ridgeway -v- The Queen.365
Adoption of the due process model for the administration of Criminal Justice would appear to include the Defendant Right of Discovery in criminal proceedings, repairing an anomaly in Australian law. Relevant material withheld from the accused in criminal proceedings may vitiate convictions obtained in its absence, even if Prosecuting Counsel did not have the same in their possession or power. However, in Australia, it is not to be. As noted above, Mason CJ and McHugh J pointed out in Dietrich,366 following the earlier decision in Bradley v Commonwealth,367 these international agreements and instruments are not part of Australian domestic law. Australia has its developed its own system of justice – remote from any external forces – and it is as unique and indigenous as the wildlife after which it has been named.
361 See comments by Tom Bathurst, One of Her Majesty’s Counsel (now Chief Justice of the Supreme Court of NSW) describing Mr Meagher's performance as ‘conduct with the greatest respect [that] is neither becoming an apparently reputable public company nor certainly an experienced senior counsel’ - James Chessell, ‘AMP battle over PR hand-out’ The Sydney Morning Herald (online), 26 September 2003
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21. Trahison des clercs.
The standard of general education in Australian is poor, and most Australian lawyers have little in the way of legal education or knowledge of the law. The inculcation of Roman Catholic law and doctrine is perhaps the only real education many receive. Otherwise poorly educated Roman Catholics rigidly follow doctrine because they have little capacity to analyse, few cognitive reasoning skills, and generally on a moral plain – they just do not know any better.368
The power of the tribe then inculcates all with the virtues of the ‘accident of evil means’,369 demanding that all members of the tribe apply the Summum bonum. However, the collusion between members of the tribe acting in concert, do not always achieve for them the results they desire – sometimes because their attempts to pervert the course of justice to corruptly obtain false convictions against targets selected by the tribe are poorly executed – and sometimes because God intervenes to frustrate their efforts.
The circumstances surrounding the acquittal obtained on the retrial of the convictions set aside by the Full Court after the Chettle matter,370 illuminate the power of divine intervention, and how sometimes the deep corruption that attends the criminal administration of justice in Victoria can back-fire on its perpetrators.
In the closing stages of the retrial, during the charge by the learned Trial Judge Shillito to the Jury, the accused was taken at the luncheon adjournment by a Prison Officer into an alcove that led from the Court to the lift well, and from which there was also a small holding cell, and a back door to the chambers of Judge Shillito. The County Court at Melbourne was undergoing renovations at that time, and as the Prison Officer led the accused from the Court Room into the alcove, the electric power was cut. The electric locks would not function, there was no manual override capacity, and no phone in the alcove. This was in the days before the widespread distribution of mobile phones. Because of the power failure, the Prison Officer and the accused were locked in the alcove unable to exit back into the Court, enter the holding cell or catch the lift.
368 Miron Zuckerman, Jordan Silberman, and Judith A Hall, ‘The Relation Between Intelligence and Religiosity: A Meta-Analysis and Some Proposed Explanations’ (2013) 17 (4) Personality and Social Psychology Review 325. 369 Moti above N 179 [106]. 370 Chettle, above N 346.
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Distinct voices could be heard from the Judge’s Chambers through the door from the alcove to the Judge’s Chambers. The accused immediately recognised the voice of Judge John Hassett, who when of Counsel, had unsuccessfully prosecuted the accused some years earlier (and apparently still holds a grudge). The other voice, was also recognised as being that of the learn’d Trial Judge Shillito.
For the next 40 minutes, the Prison Officer and the accused listened as Judge John Hassett attempted to pervert the course of Justice by urging Judge Shillito to frame his charge to the Jury in ways that would ensure the conviction of the accused, and which were not otherwise justified by the evidence at the trial or the exercise of the judicial discretion. Judge John Hassett also urged Judge Shillito to impose sentences upon the accused for the convictions manqué, far more onerous than the criminality apparent therein would otherwise have warranted. Judge Shillito did not altogether resist or reject the course urged upon him by Judge John Hassett, but was more concerned to find language that would allow him to pursue the course Judge John Hassett was attempting to procure, but preserve the appearance of propriety.
After 40 minutes, the power supply was restored and the accused was taken down in the lift to the holding cells where he immediately in his hard-backed court book made a contemporaneous note of the conversation that had been overheard between Judge John Hassett and Judge Shillito. At 2:00 pm, the accused was escorted back up to the Court Room by the same Prison Officer, who had escorted him down for lunch, and who had also overheard the conversations between Judge John Hassett and Judge Shillito. The Prison Officer said to the accused: ‘You did not recognise the voices, did you?’ The accused laughed at him and said: ‘The distinctive booming voice of Judge John Hassett is indelibly etched into my memory. I heard that voice for months every day during [my earlier trial] and I would recognise it anywhere. Besides that, each of Judge John Hassett and Judge Shillito identified themselves during the course of that conversation so there can be no doubt as to who participated in the conversation that we overheard, or as to what was said. So, go tell your minders that I made a complete full and what is known in the law as a contemporaneous note of the entire conversation’. The accused then showed the Prison Officer the note of the conversation.
As the accused was escorted back into the Court Room where the trial was being held, the Prison Officer immediately rushed over to speak to the Informant in the case. The accused called Maitland Lincoln, of Counsel, who acted for a co-accused, over to the dock and showed him the notes and quickly explained to him what had happened. Maitland Lincoln, of Counsel,
P a g e | 59 Mark Alfred C l a r k s o n _ Adversarial to Inquisitorial P a g e | 60 walked over to speak to Michael Tovey, of Counsel, who prosecuted the retrial and after they had a short conversation they both came to the dock and spoke to the accused. The accused repeated to Michael Tovey, of Counsel, what he had told Maitland Lincoln, of Counsel, and also showed the notes to Michael Tovey, of Counsel. The learn’d Prosecutor asked the accused what he wanted to do. The accused replied that he was shocked and confused, and at that point in time was unsure what course to pursue, and asked the learn’d Prosecutor what he thought the accused should do. Prosecuting Counsel indicated to the accused that he should think about the matter while the Prosecutor and Maitland Lincoln, of Counsel, spoke to the learned Trial Judge. They then left the Court.
Apparently, the two Counsel spoke to Judge Shillito, and then the three of them went to see His Honour Glen Waldron, then Chief Judge of the County Court. After that conversation, the four of them then walked across the road to see the Honourable Sir John Young, then Chief Justice of the Supreme Court of Victoria. After some delay, Michael Tovey, of Counsel, the learn’d Prosecutor and Maitland Lincoln, of Counsel, returned to the Court and approached the accused in the dock. Michael Tovey, of Counsel, said to the accused: ‘You can do whatever you like, but Shillito is his own man and I think you will be alright’. Maitland Lincoln, of Counsel, said to the accused: ‘Hassett has been very naughty’. They all apparently overlooked the fact that it was not so much a case of Hassett being ‘naughty’ – he had just been caught – doing what probably occurs as a matter of daily routine in Victoria. The tribal Capo delivering tribal commands to a tribal apparatchik.
When Court resumed, His Honour Judge Shillito apologised to the jury for the delay and continued with his charge. To the surprise of the accused, the learn’d Trial Judge then gave the Jury the direction the accused had formerly sought, but which had been refused prior to the ‘Hassett Intervention’, as to the use the Jury might make of the fact that the Crown did not call as witnesses, people mentioned during the Crown case, and whose absence the Jury might assume arose from the fact that the Crown thought those witnesses might not help the Crown case. These witnesses included those the accused had said in his defence had conspired with corrupt police and Costigan Commission investigators to orchestrate false charges to keep him in custody. The learn’d Trial Judge then eloquently gave the Jury his view of the facts of the case, cautioning them that they as sole judges of the facts were not obliged to adopt his views, but elaborating many of the virtues of the defence case, that even the accused had not previously considered. Whilst the accused appeared-in-person, unrepresented by Counsel, and was considered lacking in forensic skills and acumen, and otherwise ‘fair-game’, he was acquitted.
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As they say in the common vernacular: ‘If you’ve got them by the balls – their hearts and minds will follow’. The problem is that you seldom get them by the balls.
Hassett remained a County Court Judge until his retirement in 2002,371 but until 2014 continued in his role as Deputy Chair of the Australian Football League (‘AFL’) Tribunal,372 which conducts trials of football players accused of ‘offences’.
The framework of the tribunal is at once familiar to practitioners, who describe hearings as somewhere between a speedy criminal trial and a sitting of VCAT [Victorian Civil and Administrative Tribunal]. The sport is governed by the Laws of Australian Football and AFL Players Rules, tribunal hearings are policed by a chair who is a retired County Court judge, the counsel present evidence, cross-examine and make submissions to a jury.
The AFL Tribunal has Mr Jones as chair and fellow former County Court judge John Hassett as deputy chair. Jury members are retired AFL players. The chair manages the process and decides points of law, while the jury decides guilt or innocence and applies penalties as per the table of offences and sanctions. Along with Mr Tinney, the only prosecutors to have worked under the reconfigured system are chief prosecutor Jeff Gleeson SC, Will Houghton QC and the late Frank Costigan QC.373
No doubt the AFL Tribunal presents the tribe with an opportunity with this ‘play-school’ criminal process to inculcate the ‘accident of evil means’,374 and ensure that all members of the tribe apply the Summum bonum. Many, including Hassett, and Costigan were probably preeminently qualified to determine the guilt of football players, and apply penalties against the Laws of Australian Football and AFL Players Rules, ‘where the stringent rules regarding gambling, anti-doping, illicit drugs, sex and racial and sexual vilification were detailed’.375 The rough and tumble settings are well suited to their capacities. The members of the tribe just should never be permitted to advance beyond this work into courtrooms. They have become too enamoured with the convenience that the intellectual dishonesty, and moral vacancy of the Summum bonum offers – and like the players, and clubs, all are paid extremely well for their efforts – too well.
371 ‘Farewells - County Court: Judge Hassett’ (2002) 123 Victorian Bar News 17-18. 372 Australian Football League, 2014 Operation of Match Review Panel / Key Appointments to MRP and Tribunal Panel (24 February 2014)
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22. Adversarial to Inquisitorial.
The workings of the contemporary inquisitorial justice system in Victoria, Australia can be aptly demonstrated with reference to the activities of ‘Stuart Paul Gill’ the ‘senior investigator with the Costigan Royal Commission’,376 and Douglas Raymond Meagher, One of Her Majesty’s Counsel, Senior Counsel assisting the Costigan Royal Commission. After the Costigan Commission completed its final reports, Meagher subsequently became head of the white-collar crime prosecution team in Victoria, but continued to lecture Police Forces, academies and law enforcement agencies about organised crime and money laundering.377 Each of these lectures received wide publicity in the media with newspaper reports, magazine articles and television and radio interviews and commentaries directed to these matters. Not all the works of Meagher received unqualified praise:
Professor Harding's scepticism about the so-called 'Meagher report' to ANZAAS was heightened by the absence of substantial factual material, the inaccuracy of at least one factual matter that could be checked and the tendency as in overseas cases to chase folk devils rather than, boringly enough, paying attention to systematic improvement of the law and of its enforcement bureaucracy. Furthermore, Professor Harding's caution was enlivened by what he called the 'organised moral panic' engendered by supporters of the National Crimes Commission. All too often they adopted a simplistic diagnosis of the problem and then ventured simplistic solutions to match (emphasis in original).378
Stuart Paul Gill ‘worked with Victoria Police as a consultant for some time’, and was a ‘senior police investigator’ playing ‘an active and ongoing role in Victoria Police investigations’, and the material uncovered ‘caused the establishment of an invaluable database upon which new and wide-ranging inquiries are under way’.379 No doubt this database emulated, and perhaps overlapped that compiled by the Costigan Commission ‘under the guidance of Douglas Meagher QC’.380 The Costigan Commission data base was reputed to contain ‘more than 5,000
376 Australian Capital Territory, Parliamentary Debates, Legislative Assembly, 7 August 1991, 2534 (Dennis Stevenson). 377 See for example: Douglas Meagher QC, ‘Organised Crime’ in Papers Presented by Mr. Douglas Meagher, QC to the 53rd Anzaas Congress, Perth, Western Australia 16-20 May 1983 (Australian Government Publishing Service, 1983). 378 The Honourable Justice M D Kirby CMG, ‘Forward’ in Proceedings of a Seminar on A National Crimes Commission (Institute of Criminology, University of Sydney, 1983) 12. 379 Australian Capital Territory, Parliamentary Debates, Legislative Assembly, 7 August 1991, 2534 (Dennis Stevenson). 380 Frank Costigan QC, Speech to TI Australia (20 November 2003) 3-4
P a g e | 62 Mark Alfred C l a r k s o n _ Adversarial to Inquisitorial P a g e | 63 files’,381 and many of these files were ‘leaked’ by Costigan Commission personnel to the media.382 While still continuing his police roles, Gill was also ‘hired on staff’ by Dennis Stevenson, a member of the Legislative Assembly of the ACT, to assist him ‘in matters relating to pornography and organised crime’.383 The status and bona fides of Gill were confirmed in writing in ‘a letter of 24 May 1991 by Inspector Cosgriff of the Victoria Police Internal Security Unit’.384 Stevenson was a former army reservist, and former police officer. In this latter role, Stevenson was engaged ‘primarily training personnel in intelligence matters’.385
Relying on the work completed by Gill in his roles as a Costigan Commission and Victoria Police investigator, and the contents of the leaked reports of secret Victoria Police task force investigations code-named ‘Operation Manna’, and ‘Operation Iceberg’, Stevenson made many detailed allegations in the ACT Legislative Assembly naming many prominent people and linking them to pornography and organised crime.386 When challenged on the veracity of the allegations Stevenson continued to defend, and indeed reiterate them for over a year.387 The Stevenson speeches were taken up, and the substance of them repeated by several of Stevenson’s colleagues in the Northern Territory Legislative Assembly and in the Western Australian Parliament. The speeches received wide publicity in the media with newspaper reports, magazine articles, television and radio interviews, and commentaries directed to these matters. Australians love crime fiction.
In 1992, Raymond Hoser published The Hoser files on the internet.388 This work was banned by the Victoria Government, which did its best to suppress it, but it was subsequently published in book form as Victoria Police Corruption.389 Hoser disclosed inter alia that Costigan Royal Commission Investigator Stuart Paul Gill who provided and concatenated a good deal of the
381 Mike Smith, above N 70. 382 Ibid. 383 Australian Capital Territory, Parliamentary Debates, Legislative Assembly, 16 September 1992, 2386 (Dennis Stevenson). 384 Australian Capital Territory, Parliamentary Debates, Legislative Assembly, 16 September 1992, 2386 (Dennis Stevenson). 385 Australian Capital Territory, Members of the First Assembly, Legislative Assembly, September 1990; Wikipedia, Dennis Stevenson (22 September 2016)
P a g e | 63 Mark Alfred C l a r k s o n _ Adversarial to Inquisitorial P a g e | 64 evidence relied upon by the Costigan Royal Commission in matters relating to organised crime and money laundering was actually a fraudster whose real name was Adam Zoccolli, and who also had used several other false names including Zammit. Hoser linked Gill to several corrupt Victoria Police Officers in white-collar offences perpetrated jointly by them. The media picked up the story, and completed some further investigations. These matters forced Stevenson to make an explanation in the ACT Legislative Assembly on 16 September 1992:
Mr Stuart Gill MR STEVENSON (4.29): Madam Speaker, last year I made a number of statements in this Assembly concerning links between organised crime and the pornography industry in Australia. I had received information on these matters from Stuart Gill, who told me that he had been a senior investigator with the Costigan royal commission. He had also said that he was working with the Victoria Police as a consultant and had worked in that capacity for some time. That was later confirmed in a letter of 24 May 1991 by Inspector Cosgriff of the Victoria Police Internal Security Unit.
I hired Gill on staff to assist me in matters relating to pornography and organised crime. During that time Gill told me that a man named Gerald Gold had been named as a leading eastern States crime figure in a confidential segment of the final report of the Costigan royal commission. As a result of that information, I made statements in this Assembly concerning Mr Gold that I now believe were wrong. I later came to understand that Stuart Gill was not a police consultant but was, in fact, an informer for the Victoria Police. Gill left my employ in October last year.
Yesterday the Victorian media reported on allegations about widespread police and political corruption resulting from an investigation named Operation Iceberg. The Victoria Police Commissioner, Mr Kel Glare, stated yesterday that the allegations were not only unsubstantiated but utterly false. The commissioner said that the Operation Iceberg document was not a police report but had been prepared by a police informer. That police informer has been named as Stuart Gill. I am aware that Stuart Gill was born under the name of Paul Dummett and has also used the name Andrew McAuley.
I wish to take the opportunity to apologise to Mr Gerald Gold for any difficulties he may have been caused by statements I made in this house. Gill also stole documents from my office and spread misleading stories about me to the media. I have formed the opinion that Gill is a pathological liar. I have spoken to other people in Victoria - I made a trip to Victoria - and they have told me of certain fraud and other offences which they have said have not been prosecuted. Perhaps this situation in Victoria will give the police an opportunity to put this matter to justice.390
390 Australian Capital Territory, Parliamentary Debates, Legislative Assembly, 16 September 1992, 2386 (Dennis Stevenson).
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The tribe was in damage-control, and quite prepared to jettison Gill to better ‘spin’391 the fall-out. Stevenson did not extent his retraction to cover others he had slighted. The deep corrupt links between Westpac, Victoria Police, politicians, and the Costigan Commission were never investigated.392 They never will be. Indeed, a decade later Frank Costigan described Victoria Police as ‘widely regarded as the cleanest in the country with high standards and leadership of integrity’.393 Who did he think he was kidding? Any one he could. On the death of Costigan, Meagher praised him as ‘the finest man I have known’.394 Praise too in the eulogy for Costigan,395 from Jesuit Priest Frank Brennan AO, Prince of Rome, a ‘fourth generation Australian of purely ethnic Irish on both sides of his parents with partial ethnic German descent and ancestry from his paternal grandmother’,396 teacher of Roman Catholic Law and Doctrine at the Australian Catholic University, and the son of the Roman Catholic former Chief Justice of the High Court of Australia, the Honourable Sir Gerard Brennan AC KBE QC.
The Honourable Michael Kirby AC CMG, delivering the Frank Costigan Oration 2011 provided particulars of the early life of Costigan, and also gushed mellifluous words of praise for him.397 Cautioning against ‘excessive self-congratulations’,398 Kirby found no alleged cases of serious corruption ‘in federal, state or territory courts in Australia’.399 Kirby attempted to explain ‘frank monetary corruption’ and then moving from ‘passing money for favours’ to describe the other variety of impacts upon judicial integrity. Kirby found that post mortem: ‘Frank Costigan, as a significant Australian champion in the national and global struggle against corruption would have recognised this [distinction]’.400 Pity Costigan in life was blinded by his own view of himself, and that in death his legacy is blinded by the views others spruik of his life and works. Birds of a feather, fly together – even in death. De nihilo nihil; de mortuis nil nisi bonum. The tribe protects its own.
391 Elise Arklay, ‘Successful & unsuccessful spin: Australian case studies’ on Elise Arklay Course Work Blog (19 March 2013)
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Journalists were also effervescent in their admiration for the Costigan Commission:
Frank Costigan’s Royal Commission reports were written in a racy style, laced with a sense of outrage against the bad guys and a strong social justice theme in sympathy for the victims of organised crime. He seemed much more like a journalist than a jurist. And he was a tabloid Royal Commissioner, in the most complimentary sense of the word.
Unlike many of his colleagues, he believed passionately that one of the best weapons against organised crime was public exposure. And expose he did. Journalists loved him for it.
His Royal Commission leaked. Journalists liked that too.401
These matters show succinctly why the adversarial/ accusatorial justice system developed, and why. Racy tabloid journalist style reports leaked to the media are a weapon untempered by the proper constraints of jurisprudence. They are the province of the lynch-mob. Australians love great crime fiction. Consider for a moment why no one questioned the activities of Gill, and methodologies he employed. No one. Not Stevenson, a former Police Officer ‘primarily training personnel in intelligence matters’,402 none of the senior counsel and investigators employed by the Costigan Commission, not Costigan, not Meagher, and not one Victoria police officer, including those in the Victoria Police Internal Security Unit.
No one questioned what Gill was doing, or how he was doing it, because he was giving them all what they wanted. They had a source on which they could build – and build they did – all the allegations they wanted to make to destroy the targets selected by the tribe. There are many other witnesses, and ‘investigators’ like Gill. People who will, and do say anything at all – on command. They are used by the tribe to further whatever its agenda may be from time to time. Little wonder then that the Costigan Commission documents remain ‘not yet examined’,403 and will never be released. No one can be permitted to look too hard.
However, these methodologies only succeed à huis clos. They do not survive scrutiny. Even the most rudimentary cross-examination by a poorly trained inexperienced junior barrister would expose the weaknesses in the ‘evidence’ of Gill – and others of his ilk. The tribe cannot permit any contest of the material advanced to destroy people, by a proper contradictor. There
401 Mike Smith, above N 70. 402 Above N 385. 403 Above N 342-345.
P a g e | 66 Mark Alfred C l a r k s o n _ Adversarial to Inquisitorial P a g e | 67 is a lot at stake. It is not only reputations, and careers that are built by successfully executing tribal objectives. The proceeds of the extended brief as Senior Counsel assisting the Costigan Commission enabled Meagher to buy a luxury house in the prestigious Melbourne Bayside suburb of Brighton, and he reads the lesson in Church on Sundays as a pillar of the community.
Robert Reich makes a convincing argument that to maintain their competitive advantage over other firms, corporations will play to the boundaries of regulation, and that more regulation is needed to keep them within the expectations and needs of society.404 Reich examines the nature of corporations, and concludes that like the Scorpion, of Frog fame,405 corporations do what they do, because it is their nature to behave in the ways that they do. They are not permitted by their stockholders, or financiers to behave in any other way, particularly in a manner more consistent with corporate social responsibility.406
As can be seen from the examples above, the Summun bonum of Roman Catholic Law and Doctrine – applied as the ‘accident of evil means’, 407 allows those running the criminal administration of justice to play way outside the boundaries – and shamelessly defy all efforts to rein them in. Indeed, most of those ‘caught’ imposing that ‘accident of evil means’ to ‘the fulfilment of a just end’ are later appointed to high office. Indeed, it appears as if they are never considered for advancement, unless they first behave corruptly in pursuit of tribal objectives. It is almost a rite of passage to higher office.
Bottomley and Bronitt set out and contrast the features of the adversarial, and inquisitorial justice systems – recognising that their analysis is of ‘ideal’ models.408 They also recognise that in practice, many of the features of both systems have merged.409 In examining the features of the modern criminal law processes in Australia, Bottomley and Bronitt appear to conclude that the large volumes of criminal cases dealt with by guilty pleas, and in lower courts, the application of the crime control model, and the constraints imposed by poorly funded administrations determined to get ‘value’ for politicians – volumes of convictions for the money expended – have all worked to vitiate the due process model for the criminal administration of justice, and substituted a hybrid adversarial/inquisitorial model.410
404 Robert Reich, Supercapitalism: the transformation of business, democracy, and everyday life (Scribe, Carlton North, 2008) 3-15. 405 Wikipedia, The Scorpion and the Frog (2017)
P a g e | 67 Mark Alfred C l a r k s o n _ Adversarial to Inquisitorial P a g e | 68
Non-adversarial justice is pushed with virtuous almost mellifluous sounding concepts. ‘Its basic premises are prevention rather than post-conflict solutions, cooperation rather than conflict, and problem-solving rather than dispute resolution’.411 However, powerful Lords imposing ‘negotiated’ jail sentences upon those subjugated by economic and power imbalances, can be included amongst the very vices that adversarial/accusatorial justice developed to counter. Confession, followed by mandated acts of supererogation are central to Roman Catholic Law and Doctrine. Moreover, ‘negotiated’ justice depends for its basic integrity upon the ethics and character of those imposing the negotiations upon others, and as this missive demonstrates, the necessary ethics and character required are simply not available.412 History teaches that your life and liberty can be entrusted to no one.
In extractive industries, where there are risks to the physical safety of workers, and dangers to infrastructure and investment, Professor Andrew Hopkins from the Australian National University recommends that management formulate directions, which become rule compliance for end-point decision makers to guide their decisions and work flows.413 These rules are said to result from the risk assessment, but are also designed overcome some of the vices identified by Gunningham and Sinclair,414 which are inherent in non-compliance when only broad management objectives are set. Like for extractive industries, the criminal justice system presents grave risks to the life and liberty of all whom come into its grasp. Simply put, tribal apparatchiks cannot be trusted to exercise their discretion – because they will fall back into the ways dictated by their nature.
To bring Australia back to a due process model for the criminal administration of justice, all participants in the criminal administration of justice, not just the criminal accused, need to be confined within strict prescriptive rules, that are enforced – but how might they be enforced? There is little point in advocating a strong capital-R Bill of Rights for Australia, a polity where
411 Arie Freiberg, ‘Non-adversarial approaches to criminal justice’ (2007) 16 (4) Journal of Judicial Administration 205, 307. 412 Felicity Nagorcka, Michael Stanton, and Michael Wilson, ‘Stranded between Partisanship and the Truth: A Comparative Analysis of Legal Ethics in the Adversarial and Inquisitorial Systems of Justice’ (2005) 29 Melbourne University Law Review 448. 413 Andrew Hopkins, ‘WP 72 -Risk Management and Rule Compliance Decision Making in Hazardous Industries’, (National Research Centre for OHS Regulation (NRCOHSR) Working Paper 72, Australian National University, 2010) 24
P a g e | 68 Mark Alfred C l a r k s o n _ Adversarial to Inquisitorial P a g e | 69 all involved in the criminal administration of justice – except the criminals – are not merely excused when they break the rules – they are expected to break the rules, and appointed to high office when they do.
The Lasry approach to the application of the Summum bonum as the ‘accident of evil means’,415 as adumbrated above, should be contrasted with the brave stand taken by Judge Montgomery in the County Court of Victoria to exclude evidence unlawfully obtained by Victoria Police following their practice not swear the affidavits in support of search warrants.416 The Montgomery approach very quickly – albeit only for a short time – changed that practice, when nothing else seemed to have that effect. However, even the brave stand taken by Judge Montgomery would have come to nothing had the Victorian Court of Appeal not backed his stand.417
Appellate courts in California first coined the expression ‘fruit of the poisonous tree’ to describe the concept that under the due process model, everything that flowed from a failure to follow the rules for criminal investigation and prosecution became tainted and inadmissible. Successively state and federal courts throughout the United States followed the Californian lead, accepting that this concept was the only effective way of controlling corrupt and unlawful conduct by investigators, prosecutors and judges.418 Judge Montgomery proved them right. Lasry J did not want to change a thing. Perhaps the case merely exposed the true nature and character of Lasry J. Before he reinvented himself as a ‘civil rights advocate’ and ‘human rights lawyer’, Lasry was junior counsel assisting the Costigan Commission, understudying Costigan and Meagher in the ways of the tribe, and the application of the Summum bonum in the setting of an auto-da-fé. Demonstrating the politised nature of criminal justice in Victoria, the State Victoria legislature moved to entrench the Lasry stance.419 As demonstrated above, Australia just has no regard for human rights.420 All of the fruit of Roman Catholic Law and Doctrine, the strangler-fig of justice systems world-wide, is poisonous.
Just as Robert Reich concludes that it is pointless to expect corporations to behave in ways not consistent with their nature – it is also pointless to expect Roman Catholic lawyers, or Judges not to apply Roman Catholic Law and Doctrine – they are trained at birth so to act. It is perhaps
415 Moti above N 179 [106]. 416 DPP v Marijancevic & Ors [2011] VSCA 355. 417 Ibid. 418 Hudson v Michigan 547 US 586 (2006). 419 Evidence (Miscellaneous Provisions) Amendment (Affidavits) Act 2012 (Vic). 420 Stephen James, Human rights (John Wiley & Sons, Ltd, 2008).
P a g e | 69 Mark Alfred C l a r k s o n _ Adversarial to Inquisitorial P a g e | 70 ironical that Jesuit maxim widely attributed to Ignatius Loyola: ‘Give me the child for the first seven years and I will give you the man’, has been unpacked as a myth apparently ‘attributed to Loyola (perhaps mischievously) by Voltaire’.421 What is clear is that societal pressures upon politicians to solve criminal justice ‘problems’ become pressures upon Judges to ‘get tough on crime’.422 The cry of Roman Catholics, and those members of the tribe inculcated into the ways of the Summum bonum, not to adopt ‘American law’ and let criminals go,423 just because of some ‘accident’ of evil means,424 must seem attractive to politicians looking for quick and easy answers,425 to spruik at media events.426
Jesuit Priest Frank Brennan AO – Prince of Rome was a known opponent of any form of statutory entrenchment of human rights,427 and extending to him the Chair of the National Human Rights Consultation Committee was an exercise in cynicism. However, the National Human Rights Consultation Committee ‘recommended that Australia adopt a federal Human Rights Act, along the lines of legislation already introduced in the Australian Capital Territory (‘ACT’) and Victoria’.428 Detailed reasons for this recommendation were given.429 The vices of the ‘show-no-go’ Victorian legislation are adumbrated above.
Despite a diligent search for evidence to the contrary, Margrave Brennan apparently remains convinced that there is little interest amongst the people generally for constitutional reform and the entrenchment of rights in the Constitution, but feels that ‘better education’ for all is the answer,430 echoing the line enunciated by the Roman Catholic Justice Scalia in Hudson v Michigan.431 Margrave Brennan continues to ‘argue against a constitutional bill of rights, which
421 Arnold Beichman, Antonio Martino, and Kenneth Minogue, Three Myths, (The Heritage Foundation, Washington, 1982) 48. 422 Farrah Tomazin, ‘As Premier struggles on crime, Liberals seize the upper hand’ The Age (online), 22 April 2017
P a g e | 70 Mark Alfred C l a r k s o n _ Adversarial to Inquisitorial P a g e | 71 always leaves the final word to the judges, and argue for a statutory bill of rights which sets up a delicate power balance between politicians and judges’.432 The events described above show just how this ‘delicate power balance between politicians and judges’ works in the real world.
Princes (and Princesses) of the Roman Catholic Church don’t live in the real world. They live in the ether – the ethereal realm of God – believing in the eternal goodness of man, and they remain quite distant from the troubles of the real world. Students of the Summum bonum will instantly recognise in what Margrave Brennan posits the continuation of its twin themes:
1. no rights are absolute; and 2. the ‘balancing’ in the ‘basket of evils’ to seek the ‘greater good’ whilst mandating the ‘lesser evils’.
These are the twin seeds of corruption, and the twin tools of tyranny. Later public calls by Margrave Brennan for Roman Catholics to follow his example and break any Australian law manqué inconsistent with Roman Catholic Law and Doctrine can come as no surprise.433 For Roman Catholics, it is their nature.
The Australian Coat of Arms hangs proudly over the bench in every Australian Court. The Red Kangaroo,434 the supporter dexter of the crest in the Australian Coat of Arms, is indigenous only to Australia, and lends its name to the term ‘Kangaroo Court’. An Emu,435 the supporter sinister of the crest, hides its head in the sand when approached and displays its luxuriant plumage of shaggy appearance when so genuflecting, emulating the bewigged incumbents of the seats below. In Australian Courts, Judges sit on the bench between a Kangaroo, and an Emu. Judges looking down see only happy smiling faces. Those looking up have an entirely different perspective. The jurisprudentes in foreign polities may also view Australian courts from the court floor. As is seen above, Australia is immune to foreign influences on its unique and indigenous form of justice. When those petitioning the United Nations Human Rights Committee over some imagined breach of their human rights under International Instruments, obtain a ruling Australia does not favour, it is simply ignored.436
432 Frank Brennan AO, above N 27, 1, 187-188. 433 Frank Brennan AO, ‘Why I will break the law rather than the seal of confession’ The Sydney Morning Herald (online), 15 August 2017
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The year before the decision in Hudson v Michigan,437 confirmed that Roman Catholic Law and Doctrine now rules the United States Supreme Court, Justice Breyer delivered the opinion of the Court in Small v United States.438 The case concerned the duty of a person seeking a gun license to disclose relevant previous convictions. The statute 18 U.S.C. § 922(g)(1), makes gun possession illegal for individuals previously ‘convicted in any court’ of crimes punishable by more than one year in prison. The question before the Court was did ‘convicted in any court’ include a conviction entered in a foreign court. The majority found that it did not. The three Roman Catholics, Justices Thomas, Scalia and Kennedy dissented.
Although said not to dictate their ultimate conclusion, the majority cited the ‘significant differences between foreign and domestic convictions’, and the fear that otherwise the provision might embrace ‘a conviction from a legal system that is inconsistent with an American understanding of fairness’, and involving ‘failures of due process’. The majority upheld the finding of the Court of Appeal that, ‘before recognizing a foreign conviction as a predicate offense under Section 922(g), the court must satisfy itself that the foreign conviction comports with our notions of fundamental fairness as required by the Due Process Clause [of the Fifth Amendment of the United States Constitution]’.439 The Court did not use the term ‘Kangaroo Court’, or specifically single out the Australian justice system for critique – but well they might have.
The High Court of Australia, found in Dietrich that due process of the law does not mean in Australia what it means in the United States.440 Citing Wolf v Colorado,441 Mason CJ and McHugh J referring to [1368] 42 Edward III c. III, which provides ‘no man shall be put to answer … without due process …’ said: ‘As it appears in that provision, the expression “Due Process” can hardly be the “compendious expression for all those rights … basic to our society” that it is in the United States Constitution’.442 Dawson J,443 Brennan J,444 and Toohey J,445
Studies: Complaints about Australia to the Human Rights Committee, (16 September 2010)
P a g e | 72 Mark Alfred C l a r k s o n _ Adversarial to Inquisitorial P a g e | 73 agreed. Gaudron and Deane JJ completely ignored the submission, no reference to the same being found in their judgments, but presumably they too did not see the United States concept of due process of the law as vital to Australian law – but only as a complete contradiction to Roman Catholic Law and Doctrine. They are right. We cannot have both.
We should not have any religious law and doctrine overwhelming traditional rights and freedoms. We must choose either due process of the law, or religious law. The two foundations for a system of justice are not compatible. The Summum bonum of Roman Catholic Law and Doctrine is religious law. Accepting that Sharia Law is deemed the most intrusive and restrictive,446 Papal Law is also intrusive and restrictive – mostly because (as shown in this missive) it authorises and requires intellectual dishonesty and moral vacancy in the application of its tenets, and breaks down any laws it finds inconvenient. In Australia, the choice was made by the Roman Catholics. They chose the Summum bonum. Why are we surprised. It is all they know.
The Australian Constitution s 116 contains a provision dealing with religion. It provides:
The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.
This provision seems to operate in practice in the same way as the First Amendment to the United States Constitution, which provides: ‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof’.
The First Amendment’s Establishment Clause has been seen as a safeguard to ensure that the government is neutral toward religion by not favoring one particular religion or favoring religion over nonreligion. The Supreme Court has stressed that ‘[t]he clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another’. (citations omitted)447
The similarities do not end there. In Australia, Roman Catholic Judges do not see ‘law-making judgments’448 predicated upon Roman Catholic Law and Doctrine as conflicting with the words ‘make any law for establishing any religion’, and in any event, they are the ones who usually
446 Bradford J Kelley, ‘Bad Moon Rising: The Sharia Law Bans’ (2012) 73 (2) Louisiana Law Review 601, 606-615. 447 Bradford J Kelley above N 446, 615-616. 448 Janet Albrechtsen, above N 88.
P a g e | 73 Mark Alfred C l a r k s o n _ Adversarial to Inquisitorial P a g e | 74 exercise exclusive jurisdiction in matters involving the Australian Constitution, or its interpretation.449 In the United States, Roman Catholic Judges do not see ‘law-making judgments’450 predicated upon Roman Catholic Law and Doctrine as conflicting with the words of the First Amendment proscribing the favouring of one particular religion, and in any event, they are the ones who usually exercise exclusive jurisdiction in matters involving the United States Constitution, or its interpretation. In short, any prohibition on the government favouring one religion, does not apply to a Judge, or Judges acting in concert doing so. ‘Officially preferred’ does not mean the same as ‘covertly favoured’.
In Australia, the process of change from rights to the Summum bonum was not immediate. It commenced when the first Dublin trained lawyers set foot in Victoria in the 1800s. Like the strangler-fig, Roman Catholic Law and Doctrine infiltrates indigenous justice systems, growing up, around and enveloping them. At first some of the original tree of justice can be seen peering through the strangler-fig foliage, but eventually and inevitably the strangler-fig prevails, and the host on which it grew is suffocated, withers and dies. The High Court noted in Dietrich that due process of the law has received only ‘scant attention’451 in Australia. This is testimony to the success of the strangler-fig and ‘scant’ is all that remains of due process of the law in Australia.
In Australia, the erosion of capital-R rights, has occurred largely by stealth, with Roman Catholic ‘values’ being portrayed as greater than rights.452 Roman Catholic Law and Doctrine cloaks misconduct with the veneer of legality, righteousness and morality. Roman Catholic Law and Doctrine is after all handed down from God, and who can argue with God! It is not surprising then that Islam also uses God, and the strangler-fig approach to the imposition of Sharia law.453 It is a tactic that works.
Roman Catholic Law and Doctrine reduces criminal justice to the feudal – imprisonment by executive decree – status offences, where the general populace is ruled by laws made to control them, but not their rulers, for whom exceptions are always made. Not what crime you may have committed, but who you are. This is the way the Roman Catholic Church rules itself internally – and it is the only way it knows how to rule other polities that it is permitted to rule. Simply put – it is their nature. No wonder then that in Australia there is no right to bear arms. Violence is the only power possessed by those otherwise without power.
449 Judiciary Act 1903 (Cth) s 30, and s 40. 450 Janet Albrechtsen, above N 88. 451 Dietrich, 304. 452 The Honourable Murray Gleeson AO QC, above N 8. 453 Bradford J Kelley above N 446, 606-615.
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The due process model has not been a feature of the criminal administration of justice in Australia for a very long time. Although the process was incremental, due process was beaten to death by the Summum bonum, and despite what Stephen Bottomley, and Simon Bronitt posit,454 there is nothing hybrid about what remains – it is purely an inquisitorial criminal justice system run by the tribe under Papal law. Victoria has returned to the inquisitorial past from which Arie Frieberg considers criminal justice escaped in the 18th century.455 While the alternative to adversarialism is posited in ‘buzz-word-speak’ as ‘not necessarily inquistorialism, but non-adversarialism’,456 no one should be deluded into considering 21st Century Victoria criminal law is a non-adversarial justice system,457 or fairer,458 or offers more to victims.459 Indeed, those convicted of offences are in a very real way ‘victims’ of Australian justice.
Courts in the United States should accept that ‘Australian criminal convictions’ involve failures of due process, perpetrated under a Papal law system that is inconsistent with an American understanding of fairness, and certainly not compatible with the notions of fundamental fairness required by the Due Process Clause of the Fifth Amendment of the United States Constitution.
In other words, not real criminal convictions – just the pronouncements of an Australian ‘Kangaroo Court’ that would say and do anything to obtain, and maintain a criminal conviction – anything at all – to serve their political and tribal masters. A stark recognition that in the United States, the tribe would never get away with all the crap they pull in Australia. At least not until the United States Supreme Court has only Roman Catholic Judges. Rinne na bodhar Cloch na Blarnan.
Mark Alfred Clarkson LL B, LL M, MPPM, MBA. 10 September 2017 (revised 1 October 2017).
454 Stephen Bottomley, and Simon Bronitt, above N 408, 217-233. 455 Arie Freiberg, above N 411, 205: citing J Langbein, The Origins of Adversary Criminal Trial (Oxford University Press, New York, 2003). 456 Ibid, 207. 457 Ibid, 205; Michael King, Arie Freiberg, Becky Batagol, and Ross Hyams, Non-Adversarial justice (Federation Press, 2014) 262-274. 458 Matthew T King, ‘Security, Scale, Form, and Function: The Search for Truth and the Exclusion of Evidence in Adversarial and Inquisitorial Justice Systems’ (2001) 12 International Legal Perspectives 185. 459 Anthony Bottoms, and Julian Roberts, Hearing the victim: Adversarial justice, crime victims and the state (Routledge, 2010).
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Waldron, Jeremy, ‘Tribalism and the Myth of the Framework’, in Jeremy Waldron, Philip Catton, and Graham Macdonald (eds) Karl Popper: Critical Appraisals (Routledge, 2004), 207.
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Cases.
Adler v District Court [1990] 19 NSWLR 317.
Alister v R [1984] HCA 85; (1984) 154 CLR 404.
Antunovic v Dawson (2010) 30 VR 355.
Arsinger v Hamlim 407 US 25 (1972).
Athena -v- Kilpatrick & Others [1984] VR 1254.
Baker v Same 84 Wis 584; 54 NW 1003 (1891).
Bayley v Nixon and Victoria Legal Aid [2015] VSC 744.
Betts v Brady 316 US 455 (1942).
Bradley v Commonwealth (1973) 128 CLR 557, 582.
Brown v The Queen (1986) 160 CLR 171.
Bui v DPP (Cth) (2012) 244 CLR 638.
Byrne v Armstrong (1899) 25 VLR 126.
Clark v R [2014] NSWCCA 236.
Clarkson v Attorney-General’s Department [1989] 4 VAR 197.
Clarkson v Director-General of Corrections [1986] VR 425 (CA).
Clarkson v DPP and Others (Appeal Division) [1990] VR 745 (FC).
Clarkson v Office of Corrections [1989] 4 VAR 1.
Day v The Queen (1984) 58 Australian Law Journal 53.
Dietrich v The Queen (1992) 177 CLR 292.
Director of Public Prosecutions v Smith [1991] VR 63.
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DPP v Marijancevic & Ors [2011] VSCA 355.
Duncan v New South Wales; NuCoal Resources Limited v New South Wales; Cascade Coal Pty Limited v New South Wales [2015] HCA 13.
El-Hilli v R; Melville v R [2015] NSWCCA 289.
Em v The Queen [2007] HCA 46.
Gideon v Wainwright 316 US 768 (1942).
Glennan v Commissioner of Taxation (2003) 198 CLR 250.
Houk v Montgomery County Commissioners 14 md App; 41 NE 1068 (1895).
Hudson v Michigan 547 US 586 (2006).
In the matter of an application for a writ of Mandamus, by Mark Alfred Clarkson, directed to James Harley Kennan, Her Majesty's Attorney-General for the State of Victoria (Unreported, Supreme Court of Victoria, Grey J, 13 June 1986).
In the matter of an Application for Habeas Corpus by Mark Alfred Clarkson (Unreported, Supreme Court of Victoria, Gobbo J, 8 February 1985).
In the matter of an Application for the award and grant of a writ of Habeas Corpus by Mark Alfred (Unreported, Supreme Court of Victoria, Kaye J, 12 July 1984).
Jago v District Court (1989) 168 CLR 23.
Johnson v Zerbst 304 US 458 (1938).
McCawley v R (1918) 26 CLR 9.
McDonald v State of Wisconsin 80 Wis 407; 50 NW 185 (1891).
McGuinness v Heffernan [2017] WASC 40.
Minister for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273.
Momcilovic v The Queen [2011] HCA 34; 245 CLR 1; 85 ALJR 957; 280 ALR 221; 209 A Crim R 1.
Moti v The Queen [2011] HCA 50; 245 CLR 456; 86 ALJR 117; 283 ALR 393; 218 A Crim R 204.
National Iranian Oil Company v Crescent Petroleum Company International Ltd & Anor [2016] EWHC 510 (Comm).
Ngoc Tn Chau -v- DPP (1995) 82 A Crim R 339.
O'Connell v The State of Western Australia [2012] WASCA 96, [97-[138].
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Pearce v The Queen (1998) 194 CLR 610.
People v Moice 15 Cal 329 (1860).
Petty and Maiden v The Queen [1991] HCA 34; (1991) 173 CLR 95.
Potier v DPP [2001] NSWSC 514.
Potier v Magistrate Huber and Others [2004] NSWSC 720.
Potier v Magistrate Maughan [2004] NSWSC 590.
Powell v Alabama 287 US 45 (1932).
R (Cth) v Petroulias (No. 8) [2007] NSWSC 82.
R (Cth) v Petroulias [No 9] 2007 NSWSC 84.
R v Ashby [2010] VSC 14.
R v Bartzis [2012] QCA 225.
R v Beljajev [2006] VSC 413; 14 VR 241; 166 A Crim R 557.
R v Borg [2012] VSC 284R.
R v Clarkson (Unreported, Supreme Court of Victoria, 27 November 1984, O’Bryan J).
R v Clarkson [1987] VR 962.
R -v- Lyon & Clarkson [1986] 24 A Crim R 54.
R v Cornwell [2003] NSWSC 97; (2003) 57 NSWLR 82.
R -v- Greenham [1940] VLR 236.
R v Huston; R v Fox; R v Henke [2011] QCA 349.
R v Ibrahim [1987] 17 A Crim R 460.
R v Rich (Ruling No 26) [2009] VSC 159.
R v Rich (Ruling No 28) [2009] VSC 162.
R v Rich (Ruling No 9) [2008] VSC 453.
R v Sorby [1986] VicRp 77; [1986] VR 753.
Re Clarkson (1985) 18 A Crim R 231 (HCA).
Re Heerey; ex parte Heinrich (2001) 185 ALR 106.
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Regina (C'Wealth) v Baladjam & Ors [No 46] [2008] NSWSC 1465.
Regina (C'Wealth) v Baladjam & Ors [No 48] [2008] NSWSC 1467.
Rich v The Queen [2014] VSCA 126; 43 VR 558; 312 ALR 429; 286 FLR 251.
Ridgeway -v- The Queen (1995) 184 CLR 19.
Scott v Illinois 440 US 367 (1979).
Small v United States 544 US 385 (2005).
Slaveski v Smith & Anor [2012] VSCA 25; 34 VR 206; 218 A Crim R 252.
Taikato v R (1996) 186 CLR 454.
Teixeira de Castro v Portugal 25829/94; [1998] 28 EHRR 101; [1998] ECHR 52.
The Queen v Baden-Clay [2016] HCA 35.
The Queen v Clarkson & Others; Wight v Clarkson & Others (Unreported, Supreme Court of Victoria, Crockett, O’Bryan, and Tadgell JJ, 8 December 1986).
The Queen v Clarkson (Unreported, Supreme Court of Victoria, Young CJ, Crockett, and Grey JJ, 18 July 1986)
The Victorian Bar Council v Geoffrey T Chettle (‘Chettle’) (unreported, Victoria Bar Disciplinary Tribunal, 27 February 1989).
United States v Mendoza-Lopez 481 US 828 (1987)
Wolf v Colorado 338 US 25 (1949).
Legislation.
Charter of Human Rights and Responsibilities Act 2006 (Vic).
Commonwealth of Australia Constitution Act 1900 (Imp) 63 & 64 Victoria c.12 s 9.
Community Welfare Services Act 1970 (Vic).
Constitution (Appointments) Act 2009 (Vic).
Constitution (Council Vacancies) Act 1984 (Vic).
Constitution (Supreme Court) Act 1989 (Vic).
Constitution Act 1975 (Vic).
Crimes Act 1958 (Vic).
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Criminal Appeal Act 1907 (UK).
Criminal Organisations Control Act 2012 (Vic).
Criminal Procedure Act 2009 (Vic).
Crimes Procedure Regulations 1984 (Vic).
Evidence (Miscellaneous Provisions) Amendment (Affidavits) Act 2012 (Vic).
Imperial Acts Application Act 1969 (NSW).
Imperial Acts Application Act 1980 (Vic).
Judiciary Act 1903 (Cth).
Major Crimes (Investigative Powers) Act 2004 (Vic).
Historical Legislative Provisions.
[1297] 25 Edward I c. XXIX (Magna Carta).
[1354] 28 Edward III c. III
[1368] 42 Edward III c. III.
[1627] 3 Charles I c. I (Petition of Right).
[1640] 16 Charles I c. X (The Habeas Corpus Act).
[1679] 31 Charles II c. II.
[1688] 1 William and Mary Sessions II c. II (The Bill of Rights).
[1816] 56 George III c. C.
US Constitutional Provisions.
United States Constitution, amend I.
United States Constitution, amend V.
United States Constitution, amend VI.
United States Constitution, amend XIV.
International Instruments.
Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137; [1954] ATS 5 (entered into force 22 April 1954).
International Covenant on Economic, Social and Cultural Rights, open for signature 19 December 1966, 999 UNTS 3 (entered into force 03 January 1976).
Optional Protocol to the International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976).
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Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267; [1973] ATS 37 (entered into force 4 October 1967).
The Convention for the Protection of Human Rights and Fundamental Freedom, opened for signature 4 November 1950, ETS 5; 213 UNTS 221 (entered into force 3 September 1953).
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