IN THE COURT OF APPEAL
OF THE
OF
AP 12 of 2004 – (20207648)
AP 13 of 2004 – (20207624)
AP 15 of
2004 –
(20207623)
ON APPEAL from the judgement of
Angel J in proceeding
No. JA 100/03, 101/03, 102/03 and 105/03
BETWEEN:
ROBERT PAUL INDER-SMITH (AP 13/04)
GARY
WILLIAM
MEYERHOFF (AP 15/04)
Appellants
AND
THE QUEEN
Respondent
______________________________________
APPELLANTS’
WRITTEN
SUBMISSIONS
______________________________________
PREAMBLE
[1] The Appellants would like to say a few words about our preparation for this appeal. Although there has been almost seventeen months since the decision that we are appealing today, the Appellants have been under considerable stress and pressure during that time.
[2] The Appellant Meyerhoff has been quite ill. He has a recurring HIV-related pneumonia and according to a letter written by his doctor, Dr Brian Hughes, to assist the Supreme Court in another matter, his life expectancy is looking pretty grim. This in itself has caused all of the Appellants considerable stress. The Appellant Meyerhoff can provide the court with a copy of an affidavit and supporting medical documents previously filed on the 26th of November 2004 in AP 15 of 2004 and there is also a copy of Dr Hugh’s letter (dated some time in mid-October, 2005) on that file. These documents confirm his poor health status.
[3] The Appellant Meyerhoff’s medical condition
has also
been impacted upon by the abundant court matters that the Appellants
have faced
in the Darwin Magistrate’s Court and the Northern Territory Supreme
Court since
the formation of the Network Against Prohibition NT (NAPNT) on
[4] Many of the charges against NAPNT members have
resulted
in prison terms. The Appellants
[5] The Appellants’ financial situation has also caused us problems in the preparation of this appeal.
[6] All of the Appellants are indigent. We are all in receipt of Centrelink benefits. This is a major factor affecting the Appellants’ ability to print out and photocopy all of the documents referred to in these written submissions.
[7] The Appellants have been unable to afford private legal representation or legal aid for this matter.
[8] The former High Court Justice Lionel Murphy said that is easier for a camel to pass through the eye of a needle than for a poor man to get justice.
[9] These written submissions have been made under the most trying circumstances.
[10] The Appellants ask for leniency from the court in this regard.
INTRODUCTION
[11] This is an appeal in the Court of Appeal in the Northern Territory
of
Australia against conviction for breaching section 61 of the
Northern
Territory Criminal Code. The Appellants appeal the
[12] It is the Appellants’ contention that the conviction be quashed or at the very least, a mistrial declared.
[13] As are set out in original appeal of the decision of Wallace SM dated 5th June 2003 (pages 22 to 24 in the appeal book) and the amended notice of appeals dated 08/06/04 (Inder-Smith, pages 30-34 in appeal book), 10/06/04 (Highway, pages 25-29 in the appeal book) and 21/11/03 (Meyerhoff, pages 35-38 in the appeal book) there are numerous grounds for this appeal and it is actually an all grounds appeal. The grounds for the appeal are set out below and they follow in no particular order:
[14] The Magistrate’s Court had no jurisdiction to hear the matter.
[15] The Appellants were not legally represented and not advised of their rights.
[16] There could not have been a fair trial in the context of hostile media coverage.
[17] The Appellants do not believe the
Constitution has been correctly interpreted in light of Mabo and other
changes
in
[18] The Appellants believe that a
Parliament
that presides over a racist and corrupt state has fewer rights under
the
Constitution than people who protest said racism and corruption.
[19] The convictions were politically motivated and resulted in the criminalisation of protest.
[20] This was a case of politically motivated malicious prosecution.
[20.1] Appellants could not have a fair trial in the context of Attorney General Peter Toyne’s comments to the media, which the Appellants believe amounts to contempt of court.
[21] The Appellants believe that Section 61 of the NT Criminal Code conflicts with their implied right to freedom of speech and access to government, as implied in the Australian Constitution.
[22] It is the Appellants contention
that the
“War on Drugs” and subsequent “tough on drugs” and zero tolerance
legislation
are illegal and breach international law.
[23] It is the Appellants contention that due to the ongoing “War on Drugs”, the appellants have available to them the provisions of the Geneva Convention, to which Australia is a signatory and should have been treated as such, and
[24] Wallace SM displayed overwhelming bias against the Appellants.
[25] The
[26] Angel J claimed that we want to decriminalise drugs when nowhere in the transcripts do the Appellants say that.
[27] Angel J ignored the defence put forward by
the
Appellants that they had Section 34(3) of the NT Criminal Code
pertaining to
provocation available to them. Angel J also ignored our contention that
the
Magistrates court had no jurisdiction to hear the case; it was a
political
trial; that the video selectively edited and Wallace SM was biased
especially
with his history with
[28] Lange v ABC. Misunderstands key questions in the important phrase: “effectively burdens freedom of communication”. The answers to each key question should be yes and no in that order – therefore S61 of the NT Criminal Code IS “invalid’’. Angel J erred by finding to the contrary.
[29] Angel J erred in finding Dietrich v Queen ‘’not relevant’’. He said: (the Appellants) ‘’didn’t obtain legal advice’’. The Appellants actually said and the transcripts prove it that legal aid refused to represent the Appellants unless they pleaded guilty.
[30] Angel J erred in finding there was no evidence of police harassment.
[31] Angel J said there was no proof of bias or politicisation of the trial’’.
[32] Angel J ignored the protections available to the Appellants through the Geneva Convention.
[33] Angel J erred in ignoring the Appellants defence available under Section 34 of the NT Criminal Code, provocation. His honour said “No reasonable person would have acted in the same way”. He presumes to know how we felt. Does his perspective of how people behave, extend to the press and to why people commit crime, apart from the obvious?
[34] Angel J ignored the Appellants’ claims that Wallace SM displayed overwhelming bias against the Appellant.
[35] Ultimately, what started as an innocent and peaceful protest against the Northern Territory Government’s draconian “drug house” legislation, and other human rights and social justice catastrophes that are happening around us, not only in the Northern Territory, but around the world, has turned into a case of malicious prosecution with a politically motivated outcome.
[36] It is the Appellants’ contention that it is obvious, from the above grounds of appeal, that there was no way that the Appellants’ could have had a fair trial in the Northern Territory and that Wallace SM, forced us to proceed, with no legal representation, ensuring that the hearing would result in a miscarriage of justice.
[37] We have attempted to address each of the appeal points.
Appeal point 1 – The
Magistrate’s Court had no jurisdiction to try this case
[38] The first appeal ground is that the
[39] There has been no definitive declaration by the Legislative Assembly in accordance with s.5 of the Legislative Assembly (Powers and Privileges) Act 1992.
[40] It is the exclusive jurisdiction of the Assembly to state if an offence has occurred and especially to prosecute in the Legislative Assembly sitting in its judicial role under ss. 5,25, and 26 of the Legislative Assembly (Powers and Privileges) Act 1992.
[41] The constitutional requirement of the separation of powers applies to the exercise of the powers of the house of representatives and exercise of similar powers vested in the legislative assembly by s.12 of the Northern Territory (Self-Government) act, as enacted under the legislative assembly (powers and privileges) act. There is a constitutional requirement that the judiciary does not have power to declare whether legislative assembly has been improperly interfered with or to punish persons for their exercising of their right to freedom of expression within the legislative assembly.
[42] Only one of the branches of Government has jurisdiction over the Act in question, and in this case clearly it is the exclusive jurisdiction of the Legislative Assembly, and in fact, there can be no offence without a vote under s.5 of the Legislative Assembly (Powers and Privileges) Act 1992.
[43] Further to the above, it is the Appellants’ contention that Section 61 of the NT Criminal Code is invalid for other reasons.
[44] It has been extremely difficult to find a
precedent for
our actions on
[45] In Australian law there are no precedents. A
major
reason for this is that
[46] It is the Appellants’ submission that section 61 of the NT Criminal Code is invalid because it conflicts with the NT Powers and Privileges Act and the separation of powers as laid out in the constitution. The Commonwealth Parliament has not seen fit to implement such legislation and the Appellants do not know the reasoning behind the laws implementation in the NT.
[47] To look into this properly it is essential that we look at the history surrounding the legislation.
[48] The Appellants were only able to find one precedent for an incursion into a Parliament and this was an incursion into the English Parliament in 1642 by King Charles 1 and three hundred soldiers. This led to the English Civil War.
[49] The status of the monarchy had started to decline under the reign of James 1. He was known as the “wisest fool in Christendom”. James was a firm believer in the “divine right of Kings.” James expected Parliament to do as he wanted; he did not expect it to argue with any of his decisions.
[50] However, Parliament had one major advantage of James – they had money and he was continually short of it. Parliament and James clashed over revenue. In 1611, James suspended Parliament and it did not meet for another ten years.
[51] In 1621, James re-called Parliament to discuss the future marriage of his son, Charles to a Spanish princess. Parliament was outraged that Charles would marry a catholic bride. The marriage never took place but the damaged relationship between the King and Parliament was never mended by the time James died in 1625. Charles 1 became King.
[52] Charles was arrogant, conceited and a strong
believer
in the divine right of Kings. From 1625 to 1629, Charles argued with
parliament
over most issues. In 1629 Charles had the doors of
[53] In 1640 when Charles grew short of money to fight the Scots, he recalled Parliament as only they had the necessary money needed to fight a war and the required authority to collect extra money.
[54] By 1642 relations were not good. Charles had to do as Parliament wished as they had the ability to raise the money that Charles needed. However, as a firm believer in the “divine right Kings”, such a relationship was unacceptable to Charles.
[55] He went to Parliament with three hundred soldiers to arrest his five biggest critics. These men had already been tipped off and escaped arrest, but Charles had shown his true colours. Members of Parliament represented the people, if Charles was prepared to arrest five members of Parliament simply because they dared to criticise him, how many others were not safe? The English Civil War was started.
[56] The war ended with the defeat of the Royalist’s Army at the Battle of Preston in 1648. Cromwell pushed for a full trial of Charles who was to be charged with Treason.
[57] On
[58] Charles protested against what he saw as the illegality of what he called “this pretended court”.
[59] The Act was in force for thirty days. Charles
was
sentenced to death on
[60] This precedent clearly supports the Appellants’ proposition that the Magistrate’s Court had no jurisdiction to hear the matter. As Charles was brought before members of Parliament in 1649, we should have been dealt with by the Parliament for the May 2002 incident.
[61] Cromwell was appointed Captain-General of the Commonwealth until his death in 1658.
[62] After ten years of tyranny under Cromwell,
the monarchy
was restored to
The first was the Act Legalizing the Convention Parliament in 1660 for “removing and preventing all questions and disputes concerning the assembling, sitting, and proceeding of” the present Parliament.
[63] In 1661 he gave assent to the Act Against Tumultuous Petitioning. This Act clearly recognised the Parliament as the people’s house and was enacted to lay out some boundaries with regards to the petitioning of the Parliament by citizens. It also aimed to prevent such incursions such as that of Charles 1 and three hundred soldiers in 1642.
[64] The Tumultuous Petitioning Act reads:
“Wherefore by statute 13 Car. II. st. 1. c. 5. it is enacted, that not more than twenty names shall be signed to any petition to the king or either house of parliament, for any alteration of matters established by law in church or state; unless the contents thereof be previously approved, in the country, by three justices, or the majority of the grand jury at the assises or quarter sessions; and, in London, by the lord mayor, aldermen, and common council: and that no petition shall be delivered by a company of more than ten persons: on pain in either case of incurring a penalty not exceeding 100 l, and three months imprisonment.”
[65] Another Act that prevented large groups of
people from
approaching Parliament house was Seditious Meetings Act 1817,
particularly
section 23. Both of these Acts were repealed in
[66] Whether or not our entry into the Legislative
Assembly
is identified as petitioning is a matter of opinion. A number of the
appellants
including myself referred to petitioning while giving evidence in the
Magistrate’s Court. There was no evidence to suggest that we were not
petitioning the Government. Nine people entered the Northern Territory
Legislative Assembly on
[67] Finally, the Bill of Rights 1688 clearly states in point 5:
“That it is the right of the subjects to petition the King, and all commitments and prosecutions for such petitioning are illegal”.
[68] This shows the intention of the English Parliament to allow and encourage its citizens to petition the King and/or the Parliament about their grievances. Section 61 of the NT Criminal Code conflicts with this fundamental principle in the Bill of Rights and therefore should be declared invalid.
[69] The Bill of Rights also says:
“That the freedom of speech, and debates or proceedings in parliament, ought not to be impeached or questioned in any court or place out of parliament”.
[70] This principle has been breached by our prosecution by the NT authorities. This is further evidence that the Magistrate’s Court had no jurisdiction to hear the matter and that Magistrate Wallace should have adjourned the matter to the Supreme Court so that this legal issue should be looked at.
[71] On this ground alone the appeal should be allowed and the conviction dismissed. It would be unlawful for this matter to be reheard in the Magistrate’s Court or the Supreme Court. It is clear that only the Legislative Assembly had the power to prosecute the Appellants in this matter. This option is still open to them.
Section 4 of the NT Powers and Privileges Act says:
[72] “The powers (other than legislative powers), privileges and immunities of the Assembly and of its members, committees and officers, to the extent that they are not declared by this Act, other than this section, shall be the powers (other than legislative powers), privileges and immunities for the time being of the House of Representatives of the Commonwealth, and of the members, committees and officers, respectively, of that House.”
[73] The important statement there is “The powers, privileges and immunities of the Assembly and of its members, committees and officers”. That statement clearly shows that the powers, privileges and immunities apply to the Legislative Assembly as a space, as a structure, as well as to its members, committees and officers.”
[74] We cannot therefore be charged under section 61 of the NT Criminal Code. The only way we can lawfully be prosecuted under the powers and privileges act.
[75] Section 6 of the same Act says:
“For the avoidance of doubt, it is hereby declared and enacted that the provisions of article 9 of the Bill of Rights, 1688 apply in relation to the Assembly and, as so applying, shall be taken to have, in addition to any other operation, the effect of the subsequent provisions of this section.
[76] (2) For the purposes of the provisions of article 9 of the Bill of Rights, 1688 as applying in relation to the Assembly, and for the purposes of this section, "proceedings in Parliament" means all words spoken and acts done in the course of, or for the purposes of or incidental to, the transacting of the business of the Assembly or of a committee”.
[77] The important statement here is “Proceedings in Parliament means all words spoken and acts done in the course of, or for the purposes of or incidental to, the transacting of business in the Assembly.”
[78] There is no doubt that our entry into the chamber of the Legislative Assembly was an act done incidental to the transacting of business in the Assembly.
[79]
[80] “The temptation not to heed what s. 16(3) of the Parliamentary Privileges Act 1987 says is strong; the results, if one simply applies its language, are so odd that it is hard to believe Parliament could have intended them. We have the assurance of the Privy Council and of counsel for the Attorney-General of the Commonwealth that the provision merely represents the pre-existing law; that perhaps supports the idea that one should treat the sub-section as saying something different from the meaning its language seems to convey, but such a course would be unorthodox.”
[81] In this case the court must heed section 6 of the NT Powers and Privileges Act. It is my submission that it would be unorthodox if this appeal is not allowed and our convictions are not overturned.
[82] The events of
[83] ‘‘When a law of a
State or federal
Parliament or a Territory legislature is alleged to infringe the
requirement of
freedom of communication imposed by s 7, 24, 64 or 128 of the
Constitution, two
questions must be answered before the validity of the law can be
determined.
First, does the law effectively burden freedom of communication about
government or political matters either in its terms, operation or
effect?
Secondly, if the law effectively burdens that freedom, is the law
reasonably
appropriate and adapted to serve a legitimate end the fulfilment of
which is
compatible with the maintenance of the constitutionally prescribed
system of
representative and responsible government and the procedure prescribed
by s 128
for submitting a proposed amendment of the Constitution to the informed
decision of the people (hereafter collectively ‘the system of
government
prescribed by the Constitution’). If the first question is answered
‘yes’ and
the second is answered ‘no’, the law is invalid.’’ (Footnotes omitted.)[4]
[84] As the impugned provision does demonstrably restrict the implied freedom, by purporting to restrict prima facie political communication,[5] the answer to the first question is yes.[6]
[85]
A law is deemed to be reasonably appropriate and adapted to protecting
the
implied freedom of political communication only:[7]
[86]
'If the direct purpose of the law is to restrict political
communication, it is valid only if
necessary for the attainment of some overriding public purpose. If, on
the
other hand, it has some other purpose, connected with a subject matter
within
power and only incidentally restricts political communication, it is
valid if
it is reasonably appropriate and adapted to that other purpose.'[8]
[87] Therefore in
order to determine the validity of an impugned law, it is necessary to
examine
whether it is appropriate to means through which to achieve an
objective, which
is capable of protecting the implied freedom, despite imposing a burden
upon
it,[9]
or that the law be adapted to achieve this lawful end, through imposing
the
smallest burden possible.[10]
[88] The law must be capable of providing protection to, or promoting the Constitutionally prescribed system of government, or to providing the necessary climate for it to survive. Therefore the law, though imposing a significant burden upon some aspect of the implied freedom, may be demonstrated to be capable of providing increased protection to the requisite communication, and dissemination of information regarding the prescribed process.
[89] Where a law infringes drastically upon the implied freedom, it will be invalid if the desired ends could be achieved through less drastic means:
[90] 'In ACTV, for example, a majority of this
Court held
that a law seriously impeding discussion during the course of a federal
election was invalid because there were other less drastic means by
which the
objectives of the law could be achieved. And the common law rules, as
they have
traditionally been understood, must be examined by reference to the
same
considerations. If it is necessary, they must be developed to ensure
that the
protection given to personal reputation does not unnecessarily or
unreasonably
impair the freedom of communication about government and political
matters
which the Constitution requires.'[11]
[91] This requirement will therefore only be satisfied if the objective of the law, being a valid objective, is achieved with the imposition of the smallest possible burden upon the implied freedom.
[92] The impugned provision in this instance is ‘Disturbing the Legislative Assembly.’[12] The wording of the provision is particularly sparse and ambiguous, thus requiring recourse to the common law in order to determine the meaning of the provision.[13]
[93] In the
[94] 61. Disturbing the Legislative Assembly
[95] Any person who intentionally –
[96] (a) disturbs
the
Legislative Assembly while it is in session; or
[97] (b) engages in
conduct in the immediate view and presence of the Legislative Assembly
while it
is in session with the intention of interrupting its proceedings or
impairing
the respect due to its authority,
[98] is guilty of a crime and is liable to
imprisonment for
3 years.
[99] This section does not make unmistakably and unambiguously clear, whether in fact it does apply to legitimate political protest, therefore it possible that any strenuous objection to the activities of the legislative assembly, even within the legislature itself, could be seen as being sufficient to ‘disturb’ the legislature.
[100] A similarly worded section of the Criminal Code Act (QLD) was recently the subject of discussion in the Queensland Parliament, where the Premier of Queensland pointed out the following problems with the provision;
[101]
Sending an MP
to the criminal court would have several adverse consequences. The most
worrying of these is that a future government could cite such a
precedent and
use its numbers in parliament or on a committee to send opposition
members for
trial on charges under chapter 8 of the Criminal Code Act, such as
section 56
which refers to ‘Disturbing the Legislature’. A future government might
utilise
section 56, which makes it clear that—
[102] (1) Any person who advisedly—
[103] (a) disturbs the Legislative
Assembly while in
session ...
[104] is
guilty of a
misdemeanour, and is liable to imprisonment for 3 years.
[105] There
are no
qualifying definitions here. There is nothing to limit the guilty
person to a
member of the public who disturbs parliament. For example, I can see
nothing to
stop a loud and disruptive parliamentarian from being referred to the
criminal
courts for standing when he has been ordered to sit down by the Speaker
and
continuing to speak despite being told to stop by the Speaker. Some
people find
that very disturbing.
[106] The
Criminal
Code has no shades of grey here—absolutely none. According to the
Criminal
Code, every time the member for Callide, for example, disturbs the
Legislative
Assembly he is guilty of a misdemeanour and is liable to imprisonment
for three
years. But should the parliament deal with him through the criminal
courts
every time he disturbs parliament? Of
course not. Neither should we send the member for Sandgate to be
tried
in a criminal court. But the examples I have quoted raise the question
of
whether this chapter should be amended to make clear the intentions of
sections
such as 56 and 57. They were never intended to be used in the way that
has been
suggested by those opposite. I table chapter 8 of the Criminal Code.
[107] There
may be
those here who would scoff at the suggestion that a
[108] Therefore, the
provision could impose a drastic burden on the
freedom of political communication, and is not only not reasonably
adapted to
protecting the freedom, or to giving effect to the Constitutionally
defined
system of government, it can, according to Peter Beattie,[15]
cause
irreparable damage to it. The
legislation in the
[109] It is evident that the law is particularly inappropriate to the achievement of its desired objective, being the exclusion of unlawful entry to the chamber of the legislature,[17] as by doing so it could conceivably be used to limit or restrict political communication within the chamber, as no attempt has been made by the legislature to provide any defence or excluded class of communication, any person, regardless of position, who disturbs the chamber is guilty of an offence.[18]
[110] As the impugned provision is designed to achieve a legitimate objective, being the exclusion of unauthorised entry,[19] the fact that it imposes a severe restriction upon the freedom of political communication is sufficient to result in the invalidation of the provision if the desired end could be achieved through less drastic means, which would impose a lesser or no restriction upon the freedom of communication, thus, as the desired objective could be most easily achieved through utilizing the existing provision within the Criminal Code, aimed at unlawful entry, which would impose no significant restriction upon the freedom, it is evident that the provision is not reasonably adapted to achieving its desired end, and the protection of the Constitutionally implied freedom and system of government.
[111] Therefore, the answer to the second question is no, and the law is invalid.
[112] Alternatively, the impugned provision
purports to
restrict, abrogate or curtail the appellant’s fundamental common law
right to
freedom of expression. However, the provision that seeks to abrogate or
curtail
this fundamental right is not stated with the irresistible clarity, and
unambiguous and unmistakable language necessary for the courts to
impute such
an intention to the legislature.[20]
This is because it is:[21]
[113] 'in the last degree improbable that the
legislature
would overthrow fundamental principles, infringe rights, or depart from
the
general system of law, without expressing its intention with
irresistible
clearness; and to give any such effect to general words, simply because
they
have that meaning in their widest, or usual, or natural sense, would be
to give
them a meaning in which they were not really used.’[22]
[114] This is particularly evident in this instance, as not only does the provision purportedly abrogate or curtail the fundamental right to freedom of expression, and of political communication, within the legislative assembly, it makes no attempt to exempt any class of persons or provide defences to such offence. Indeed it appears that the legislature may not have intended the provision to restrict political communication at all, particularly as it appears that it has devoted little legislative thought to doing so, in which case the courts may not impute to the legislature that intention.[23] Thus the provision is invalid pro tanto, or the provision should be construed as meaning that unauthorised entry to the Legislative Assembly sufficient to disturb the assembly, excepting any such disturbance caused by political communication, or freedom of expression, is an offence.
Appeal point 2 - The Appellants
were unrepresented and were not adequately advised of their rights
[115] Despite numerous applications to have the matter adjourned to enable the Appellants to raise funds to obtain legal representation, Wallace SM forced them to go ahead with a hearing. This was also despite claims of ongoing police harassment and intimidation directed towards the Appellants before and during the hearing and submissions by the Appellant Meyerhoff that he was suffering ill-health. In all attributes, this hearing was not fair.
[116] It would be fair to say that the Appellants, with no legal background or training, were incompetent to conduct their defence in this indictable matter. Wallace SM should have ordered a stay of proceedings until the defendant’s were in a position to proceed.
[117] The conduct by the Appellants in the
[118] In R v McCormick (2000) 33 MVR 9; BC200008024; [2000] QCA 522, Helman J (with whom Pincus and Thomas JJA agreed) recognised with reference to R v Paddon [1999] 2 Qd R 387 per Chesterman J (with whom McPherson JA and Helman J agreed) at 393 that it is well established that before an appellate court will set aside a conviction on the ground that conduct by the defence occasioned a miscarriage of justice, it must fit the description of “flagrantly incompetent”.
[119] The Appellants believe that the conduct of
their
defence in the
[120] Paddon also establishes:
[121] (1) That the court will not lightly infer that the counsel's conduct of a trial, which has turned out badly for the accused, was incompetent. Unless the inference is the only one available and is compelled by the circumstances, it should not be drawn.
[122] (2) That flagrant incompetence in the sense of obvious, shocking ineptitude, will not be demonstrated by an error of judgment in the conduct of a criminal offence. There must, at least, be something in the conduct of the defence which could never be thought by a competent counsel in the circumstances of the trial to be of any possible advantage to the accused.
[123] (3) As long as the decision to adduce evidence can be seen as providing some forensic advantage to the accused, it cannot form the basis for intervention by an appeal court because it will not be possible to draw the inference of flagrant incompetence.
[124] (4) An appellant in such a case ought to approach the solicitors and/or counsel who appeared at the trial and request their support for the appeal by providing an affidavit concerning the matter which is said to constitute flagrant incompetence.
[125] The court also referred with approval to R v Green [1997] 1 Qd R 584 at 586–7; R v Birks (1990) 19 NSWLR 677 at 683–5; 48 A Crim R 385 and R v Miletic [1997] 1 VR 593 at 598.
[126] Although there is no duty on the trial judge to inquire whether an unrepresented accused person wishes to have counsel it is in general desirable that this should be done. See R v Hanias (1976) 14 SASR 137. It is the Appellants contention that Wallace SM did not make it clear in his own mind as to whether the defendants in the matter wanted legal advice.
[127] The essential judicial characteristics of patience and courtesy must be displayed at every trial particularly a criminal trial conducted before a jury at which the accused person has not had the benefit of legal representation. It is the duty of the trial judge to take special pains to ensure that an accused person who is not legally represented receives a fair trial. See Love v R (1983) 49 ALR 382 (HC).
[128] Where an indigent accused person charged with a serious offence who through no fault on his or her own part is unable to obtain legal representation applies to a trial judge for an adjournment or stay of proceedings, then in the absence of exceptional circumstances the trial should be adjourned, postponed or stayed until legal representation is available. See Dietrich v R (1992) 177 CLR 292; 109 ALR 385
[129] Dietrich is clear, Mason CJ and McHugh J at page 297 said “In our opinion, and in the opinion of the majority of this Court, the common law of Australia does not recognize the right of an accused to be provided with counsel at public expense. However, the courts possess undoubted power to stay criminal proceedings which will result in an unfair trial, the right to a fair trial being a central pillar of our criminal justice system. The power to grant a stay necessarily extends to a case in which representation of the accused by counsel is essential to a fair trial, as it is in most cases in which an accused is charged with a serious offence.”
[130] And at 304 “In Jago v Judges of the District Court of NSW Kirby P expressed the view that, where the inherited common law is uncertain, Australian judges may look to an international treaty which Australia has ratified as an aid to the explication and development of the common law. As a suggested example of this approach, the applicant points to the status accorded to the ECHR in English law. In common with the status of the ICCPR in Australian law, the ECHR is not part of English domestic law and thus rights contained in the ECHR cannot be enforced directly in English courts; furthermore, if domestic legislation conflicted with the ECHR, English courts would nevertheless be required to enforce the legislation. However, it is "well settled" that, in construing domestic legislation which is ambiguous, English courts will presume that Parliament intended to legislate in accordance with its international obligations. English courts may also have resort to international obligations in order to help resolve uncertainty or ambiguity in judge-made law.”
[131] “Assuming, without deciding, that Australian courts should adopt a similar, common-sense approach, this nevertheless does not assist the applicant in this case where we are being asked not to resolve uncertainty or ambiguity in domestic law but to declare that a right which has hitherto never been recognized should now be taken to exist. Moreover, this branch of the applicant's argument assumes that Art. 14(3)(d) of the ICCPR supports the absolute right for which he contends. An analysis of the views of the Human Rights Committee on communications submitted to it relating to Art. 14(3)(d) reveals little more than that the Committee considers that legal assistance must always be made available in capital cases . However, the European Court of Human Rights has approached the almost identical provision in the ECHR by emphasizing the importance of the particular facts of the case to any interpretation of the phrase "when the interests of justice so require" . As will become clear, that approach is similar to the approach which, in our opinion, the Australian common law must now take.”
[132] The Appellant Meyerhoff made a number of
applications
for the hearing to be adjourned, all ignored by Wallace SM. See the
following
exchange from the
[133] On
[134] From page 85 on
[135] MR THOMAS:
That’s the second day in a row that Mr
Meyerhoff hasn’t been ready. The case
has been closed since 1 November; he ought to prepare.
[136] HIS
WORSHIP: He ought to be? That’s right.
[137] MR MEYERHOFF:
Being harassed by the prosecution – I've got
so many charges – I've got six hearings.
[138] Now, to some people that may not seem out of the ordinary – 6 charges. Even less so if the Appellant Meyerhoff was represented by a lawyer, if that was the case it wouldn’t require much work from him. In the Appellants case however, we are forced to represent ourselves because legal aid refuses to represent us unless we plead guilty.
[139] Further to this Appellants were subject to ongoing harassment from NT Police before and more significantly, during the hearing – this is evident because:
[140] At one stage during the hearing, bail conditions prevented the Appellants Meyerhoff, Inder-Smith and Highway from associating with each-other or with our co-defendants. The Appellant Meyerhoff could not associate with the people he lived with outside the boundaries of the house. This was further complicated by the fact that at the time he had recently been in RDH with pneumonia and was still quite ill.
[141] These bail conditions arose from another attack by police on a NAPNT event less than 3 weeks before our hearing was due to commence.
[142] Police present in court – Bert Hofer (transcript 31st October 2002) page 19, Police recruit class in court (transcript 19th February 2003 page 13), Police present in court to hear us sentenced.
[143] Massive amount of politically motivated charges – I ask you to order a copy of my antecedence report to assist you in that regard.
[144] Tactics of intimidation – scaring people away from NAPNT demonstrations.
[145] The Appellant Highway gave evidence of NAPNT
protests
held prior to
[146] “We saw from that that the – the Northern Territory police state was determined that Network Against Prohibition was not allowed to have their say. We realised we were up against this police state and we – it was a fairly violent and intimidatory response. So, the only – our only defence was to get the – the superior numbers of the public on our side and to counter the – the violence of the police.” (Transcript 19/02/03pages 10 to 15)
[147] Wallace SM had already disregarded this as a reason to adjourn the matter:
[148] HIS WORSHIP:
If Mr Meyerhoff’s right, and if the smoke-ins and so on
continue, and if
the police go on behaving in the way he alleges they’ve behaved, then
chances
are there’s going to be even more charges laid against you of the
annoying,
pestering, harassing type that he’s complaining about.
So it hardly seems to me that that in that
sense the lapse of time is likely to make things easier for the
defendant.(Transcript
Appeal point 3 - The
politicization of the hearing was evident. Political bias
[149] The hostile media campaign (epitomized by Attorney General Peter Toyne's public remarks on the court case) made an unbiased jury trial seem unlikely to the Appellants.
[150] The Appellants were emotionally and physically exhausted by the government and Police campaign mounted against them. The Appellants were dealing with a statistically improbable number of other cases and legal matters at the time.
[151] The Appellants were subject to ongoing
harassment from
NT Police before and more significantly, during the hearing in the
[152] The hearing was politicised.
[153] It has always been the Appellants’ contention that evidence was tampered with and not made available to the Appellants as appropriate and that cross examination was prejudicial to the Appellants.
[154] The following quote taken from Hansard is
clear
evidence of the politicisation of the hearing. Debates - Ninth
Assembly, First
Session -
[155] From http://www.napnt.org/pages/Hansard-Spiel.htm
[156] Toyne: "We are pressing on with this, and we are actually encouraged by the invasion today. We are saying to those people, and it was good to look them straight in the eye and see the sort of people that we are bringing these laws in to counter the interests of. They can go somewhere else, the dealers can go somewhere else, we don't want to make it easier for them here."
[157] “Madam Speaker, let me put very clearly on the record, that disgraceful events like this morning's invasion of Parliament House will not deter this government from tackling the drug distribution, drug traffickers and drug dealers right across the Territory. So, I put drug dealers, drug traffickers, drug manufacturers - those who want to stand up, as we saw this morning, for those people who are doing this in our society - on notice, because we are not deterred. We, as a government, are not deterred from bringing in our very effective drug legislation into this sittings of parliament.”
[158] and, “We need to make very clear to those who are dealing drugs, those who are manufacturing, those who are trafficking in drugs in the Territory, that displays like the one we saw this morning will not deter this parliament, will not deter this government from getting tough on drugs and those who are dealing them.”
[159] On
[160] "I think people here in the
Northern Territory are getting heartily sick of Gary Meyerhoff and his
group
and their total disrespect for every institution that holds our
community
together whether it be the parliament or the procedure that they're now
entering in to”.
[161] The Denis Burke NAALAS fiasco gave us an important precedent here:
[162] Wilcox J said the following: “The principles concerned in contempt of
court cover several matters. One of these is the protection of
litigants from
improper pressure to abandon or discontinue claims or defences. The law
does
not countenance intimidation of litigants or their being subjected to
public
obloquy or abuse to defend their rights."
[163] According to the Readers Digest Great
Illustrated
Dictionary, Obloquy is defined as: “Abusively detractive language or
utterance;
condemnation.”
[164] Any
reasonable person listening to ABC radio on the 3rd of
October,
2002, would have heard Mr Toyne’s comments as condemnation of NAPNT,
regardless
of whether or not they use currently illicit drugs and/or support the
Network
Against Prohibition NT.
[165] On
there own these comments may escape prosecution for contempt of court,
but in
the context of hostile news reporting in the NT News, attacks from the
parliament under the protection of parliamentary privilege and the
relentless
harassment of NAP members and supporters by NT Police in 2002/3, they
can only
be seen as an attempt to set a framework for the upcoming hearing into
the
parliament invasion and other court cases faced by NAPNT members at the
time.
[166]
The Appellants have attempted to raise this matter during numerous
separate
matters at the Darwin Magistrate’s courts and my concerns and those of
my
fellow defendants have fallen on deaf ears. This can only further fuel
any
suspicions we have that we will never get a fair trial or hearing in
the
[167] In common with China, Croatia, Cuba, Egypt, El Salvador, Indonesia, Iran, and Iraq, Australia locks up dissenters who in the process of expressing their abhorrence of some action by the government and in adherence to their commitment to some higher law or to the values of their conscience violate a statute or are accused of a violation.
[168] From radicals and leftists, to anti-war and refugee rights activists, to civil rights and anti-racist fighters, to Trade Union activists -- and right-wing dissenters too-- the nation silences dissenters by trial and imprisonment and denies it is political.
[169] Just as
[170] From Henry David Thoreau's refusal to pay taxes to express his opposition to slavery and the Mexican War (defended in his essay "Civil Disobedience") to the protesters who shut down the San Francisco Bay Bridge to express their opposition to the Gulf War of 1991 (the protest defended upon the Nuremberg Principles and the First Amendment), citizens have refused to obey government rules or laws they believed unjust.
[171] During the Civil Rights and the anti-Vietnam War movements in the US, thousands of people were jailed for protesting leaders and laws considered profoundly contrary to truth and justice. These protesters defied authority and were consequently subjected to the force of the state in trials and imprisoning, which the state denies is political.
[172] The 1997 edition of Butterworth’s Concise Australian Legal Dictionary describes a political offence as “An offence directly and solely related to an organised, prolonged campaign involving a number of people to change government policy or to overthrow the domestic order of a state and its governmental authority.”
[173] Although Amnesty International originally recognized as "prisoners of conscience" only those who have not used or advocated violence, now they include everyone who has been denied trial within a reasonable time, when trial procedures do not conform to recognized international norms, when prison conditions are cruel, degrading, and inhuman, and all condemned to death. But as Australian history indicates, countless individuals throughout Australian history have been arrested in defence of their ideals, while the government has resolutely denied the category "political prisoner" or "prisoner of conscience," thereby preventing a political defence.
[174] It was obvious when questioning witnesses that Wallace SM would not allow the defendants to properly explore their defences of justification and provocation, or the political nature of their actions. The attitude of Magistrate Wallace seems at odds with our Federal Parliament who have obviously accepted that some offences will be political in nature.
[175] Section 13(1) of the Extradition (Foreign States) Act provides that a person is not liable to be surrendered to a foreign state "if the offence to which the requisition for his surrender relates is, or is by reason of the circumstances in which it is alleged to have been committed or was committed, an offence of a political character or if the requisition for his surrender has in fact been made with a view to try or punish him for an offence of a political character".
[176] Denman J in Re Castioni [1891] 1 QB at 158 “that the court is not concerned with the wisdom of carrying out the relevant act in the advancement of that cause -- but that "the motive and purpose of the accused in committing the offence must be relevant and may be decisive". His Lordship went on to reject the necessity for open insurrection or for an intention to change the composition of the government:
[177] "An underground resistance movement may be attempting to overthrow a government and it could hardly be that an offence committed the day before open disturbances broke out would be treated as non-political while a precisely similar offence committed two days later would be of a political character. And I do not see why the section should be limited to attempts to overthrow a government. The use of force, or it may be other means, to compel a sovereign to change his advisers, or to compel a government to change its policy may be just as political in character as the use of force to achieve a revolution. And I do not see why it should be necessary that the refugee's party should have been trying to achieve power in the State. It would be enough if they were trying to make the government concede some measure of freedom but not attempting to supplant it."
[178] Wallace SM and the Prosecutor seemed bound by a need to exonerate Superintendent Bert Hofer, who assaulted a defenceless female in parliament and the Appellant Meyerhoff.
[179] The Appellants absolutely refute all of Wallace SM’s comments to the assembled press (during sentencing) about this assault.
[180] The Appellants rely on the (Police doctored) video tape and the transcript to demonstrate why.
[181] The Court was used at times by the Prosecutor to help Police gain evidence in matters unrelated to the alleged offence for overtly political reasons.
[182] The video evidence was withheld and tampered with and was withheld from the Appellants until very late in the proceedings. This exhibit should never have been allowed by Wallace SM.
[183] Cross examination and evidential criteria were grossly prejudicial to the Defendants.
Appeal point 4 - The Appellants
do not believe the Constitution has been correctly interpreted in light
of Mabo
and other changes in Australia's social and legal framework since its
inception
[184] The Appellants maintain the contention that
the
Constitution has been correctly interpreted in light of Mabo and other
changes
in Australia's social and legal framework since its inception but wish
to add
nothing further to this appeal ground.
Appeal point 5 – The
Appellants believe a Parliament that presides over a racist and corrupt
state
has fewer rights under the Constitution than people who protest said
racism and
corruption
[185] Henry David Thoreau on the duty of civil
disobedience
(originally titled: Resistance to Civil Government - 1849):
[186] “Unjust laws exist: shall we be content to
obey them,
or shall we endeavor to amend them, and obey them until we have
succeeded, or
shall we transgress them at once? Men, generally, under such a
government as
this, think that they ought to wait until they have persuaded the
majority to
alter them. They think that, if they should resist, the remedy would be
worse
than the evil. But it is the fault of the government itself that the
remedy is
worse than the evil. It makes it worse. Why is it not more apt to
anticipate
and provide for reform? Why does it not cherish its wise minority? Why
does it
cry and resist before it is hurt? Why does it not encourage its
citizens to put
out its faults, and do better than it would have them? Why does it
always
crucify Christ and excommunicate Copernicus and Luther, and pronounce
Washington and Franklin rebels?”
Appeal point 6 - The
sentencing was manifestly excessive and ignored the circumstances of
the Appellants
[187] Namely the stressful political situation and economic disadvantages of the Appellants and their political motivation. This is the criminalisation of political protest.
[188] Wallace SM also failed to take into account the enormous amount of evidence revealing a campaign by NT government and Police to marginalize and destroy NAPNT (Network Against Prohibition NT).
[189] As the appeal against sentence in this matter has been separated from the appeal against conviction, we wish to make no further submissions on this appeal ground.
Appeal point 7 - Evidence
of 'selective prosecution' on political grounds
[190] The Appellants contend that there was
evidence of
selective prosecution on political grounds. Some examples being the
refusal of
Police to even investigate complaints made by the people assaulted in
Parliament on
[191] Attempts to bring NT Attorney General Peter Toyne's comments on the trial -- which the Appellants believe amount to Contempt of Court -- to the attention of the court have yet to meet with success.
Appeal point 8 - It
is the Appellants’ contention that Section 61 of the NT Criminal Code
breaches
our implied right to freedom of speech and access to government as
implied in
the Australian Constitution
[192] Chief Justice Murray Gleeson said in his year 2000 Boyer Lecture The Rule of Law and the Constitution:
[193] “One of the ways in which the law seeks to
promote
justice and individual liberty is in its function as a restraint upon
the
exercise of power, whether the power in question is that of individuals
or
corporations, or whether the power in question is that of other
individuals or
corporations, or whether it is the power of governments. Many Acts of
Parliament, and many rules of judge-made law, limit the capacity of
corporations, or individuals, or bureaucracies, to do what they will.
The basic
law of
[194] One of the first records of ‘freedom of
speech’ can be
found in the Statutes of Wiślica" introduced in 1347 by
Casimir_III_of_Poland.
These statutes codified freedom of speech in medieval
[195] The philosopher Alexis de Tocqueville observed that people may be hesitant to speak freely not because of fear of government retribution but because of social pressures. When an individual announces an unpopular opinion, he or she may face the disdain of their community or even be subjected to violent reactions. While this type of suppression of speech is even more difficult to prevent than government suppression, there are questions about whether it truly falls within the ambit of freedom of speech, which is typically regarded as a civil liberty, or freedom from government action.
[196] There are a number of differing theories of free speech.
[197] One theory is that freedom of speech is crucial in any democracy, because open discussions of candidates are essential for voters to make informed decisions during elections. It is through speech that people can influence their government's choice of policies. Also, public officials are held accountable through criticisms that can pave the way for their replacement. The US Supreme Court has spoken of the ability to criticize government and government officials as "the central meaning of the First Amendment." New York Times v. Sullivan. But "guarantees for speech and press are not the preserve of political expression or comment upon public affairs, essential as those are to healthy government." See Time, Inc. v. Hill.
[198] Some suggest that when citizens refrain from voicing their discontent because they fear retribution, the government can no longer be responsive to them, thus it is less accountable for its actions. Defenders of free speech often allege that this is the main reason why governments suppress free speech--to avoid accountability.
[199] Alternatively, it may be argued that some
restrictions
on freedom of speech may be compatible with democracy or necessary to
protect
it. For example, such arguments are used to justify restrictions on
support of
Nazi ideas in post-war
[200] A classic argument for protecting freedom of
speech as
a fundamental right is that it is essential for the discovery of truth.
Justice
Oliver Wendell Holmes wrote that "the best test of truth is the power
of
the thought to get itself accepted in the competition of the market,
and that
truth is the only ground upon which their wishes safely can be carried
out." See Abrams v.
[201] This marketplace of ideas rationale for freedom of speech has been criticized by scholars on the grounds that it is wrong to assume all ideas will enter the marketplace of ideas, and even if they do, some ideas may drown out others merely because they enjoy dissemination through superior resources.
[202] The marketplace is also criticized for its assumption that truth will necessarily triumph over falsehood. It is visible throughout history that people may be swayed by emotion rather than reason, and even if truth ultimately prevails, enormous harm can occur in the interim. However, even if these weaknesses of the marketplace of ideas are acknowledged, supporters argue that the alternative of government determination of truth and censorship of falsehoods is worse.
[203] Another rationale is that it is an essential aspect of personhood and autonomy. Professor Baker said that "to engage voluntarily in a speech act is to engage in self-definition or expression. A Vietnam war protester may explain that when she chants 'Stop This War Now' at a demonstration, she does so without any expectation that her speech will affect continuance of the war ... rather, she participates and chants in order to define herself publicly in opposition to the war. This war protester provides a dramatic illustration of the importance of this self-expressive use of speech, independent of any effective communication to others, for self-fulfillment or self-realization." This view suggests a rationale for the protection of acts of expression that are not obviously political or vital to self-government, such as abstract art, music, or dance.
[204] Protecting speech because it aids the political process or furthers the search for truth emphasizes the instrumental values of expression. Justice Thurgood Marshall wrote that "the First Amendment serves not only the needs of the polity but also those of the human spirit -- a spirit that demands self-expression." (Procunier v. Martinez, 416 U.S. 396, 1974).
[205] Critics of this view argue that there is no inherent reason to find speech to be a fundamental right compared with countless other activities that might be regarded as a part of autonomy or that could advance self-fulfillment.
[206] Another explanation is that it is integral to tolerance, which some people feel should be a basic value in society. Professor Lee Bollinger is an advocate of this view and argues that "the free speech principle involves a special act of carving out one area of social interaction for extraordinary self-restraint, the purpose of which is to develop and demonstrate a social capacity to control feelings evoked by a host of social encounters." The free speech principle is left with the concern of nothing less than helping to shape "the intellectual character of the society."
[207] This claim is to say that tolerance is a desirable, if not essential, value, and that protecting unpopular speech is itself an act of tolerance. Such tolerance serves as a model that encourages more tolerance throughout society. Critics argue that society need not be tolerant of the intolerance of others, such as those who advocate great harm, even genocide. Preventing such harms is claimed to be much more important than being tolerant of those who argue for them.
[208] In democratic countries, freedom of speech is taken for granted, though the exact degree of freedom varies between countries and jurisdictions. This freedom generally includes:
[209] the right to criticize the political system and political leaders, including those in power;
[210] the right to criticize public and corporate policies;
[211] the right to criticize religious and political ideas.
[212] Still, in no country is freedom of speech absolute. Limits include, for instance, the prohibition of libel and slander (or defamation) – that is, publishing or saying things that are detrimental to one person in an "unfair" way, though, again, the exact limits of what is prosecutable vary. Some democratic countries prohibit so-called "hate speech" – speech that is intended to stir up aggression against certain groups for religious, racial, etc. reasons.
[213] The majority of African constitutions
provide legal
protection for freedom of speech. However, these rights are exercised
inconsistently in practice. The replacement of authoritarian regimes in
[214] Freedom of speech is increasing in
oil-producing
countries (such as
[215] Several
[216] The Indian constitution guarantees freedom
of speech
to every citizen and there have been landmark cases in the Indian
Supreme Court
that have affirmed the nation's policy of allowing free press and
freedom of
expression to every citizen. In
[217] Article 19 of the Indian constitution states:
[218] All citizens shall have the right
[219] (a) to freedom of speech and expression;
[220] (b) to assemble peaceably and without arms;
[221] (c) to form associations or unions;
[222] In
[223] The free communication of thoughts and of
opinions is
one of the most precious rights of man: any citizen thus may speak,
write,
print freely, save [if it is necessary] to respond to the abuse of this
liberty, in the cases determined by the law.
[224] In addition,
[225] Freedom of speech is protected by Article
40.6.1 of
the Irish constitution. However the article qualifies this right,
providing
that it may not be used to undermine "public order or morality or the
authority of the State". Furthermore, the constitution explicitly
requires
that the publication of "blasphemous, seditious, or indecent matter"
be a criminal offence. Under the European Convention On Human Rights
Act, 2003,
all of the rights afforded by the European Convention form an integral
part of
the
[226] It can be readily accepted that freedom of speech and expression is fundamental to democratic society. It is one of the fundamental concepts that has formed the basis for the historical development of the political, social and educational institutions of western society. Representative democracy, as we know it today, which is in great part the product of free expression and discussion of varying ideas, depends upon its maintenance and protection. (Retail, Wholesale & Department Store Union, Local 580 et al v. Dolphin Delivery Ltd (1986) 33 DLR (4th) 174 at 183 per McIntyre J.)
As was said by Lord Simon of Glaisdale in Attorney-General v. Times Newspapers Ltd [1974] AC 273 at 320:
[227] “The public interest in freedom of discussion (of which the freedom of the press is one aspect) stems from the requirement that members of a democratic society should be sufficiently informed that they may influence intelligently the decisions which may affect themselves’s.”
[228] Although in many democratic societies the freedom enjoys constitutional protection the freedom is not absolute. Bingham LJ in the Court of Appeal in Attorney-General v. Guardian Newspapers Ltd (No. 2) 1990 1 AC 109 at 214 quoted the following words of the distinguished American author, Archibald Cox:
[229] “Freedom of expression, despite its primacy, can never be absolute. .... At any time unrestrained expression may conflict with important public or private interests .... Some balancing is inescapable. The ultimate question is always, Where has - and should - the balance be struck?” (Freedom of Expression (1981) p.4)
[230] Even John Stuart Mill in his famous essay On
[231] In section 1 of the Canadian Charter of Rights and Freedoms the freedom of expression guaranteed by section 2(b) of the Charter is subject "to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society".
[232] Article 10(2) of the European Convention on Human Rights provides that the freedom of expression guaranteed by article 10(1) may "...be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."
[233] Article 19(3) of the International Covenant on Civil and Political Rights ("ICCPR") also provides that the right to freedom of expression may be subject to such restrictions as are provided by law and are necessary:
[234] (a) For respect of the rights or reputations of others; and (b) For the protection of national security or of public order (ordre public), or of public health or morals.
[235] The freedom enjoys its widest protection
under the
First Amendment to the Constitution of the
The freedom as set out in Article 10 of the European Convention has been recognised as consistent with the common law. In Attorney-General v. Guardian Newspapers (No. 2) [1990] 1 AC 109 at 283-4 Lord Goff of Chieveley said:
[236] “Finally, I wish to observe that I can see no inconsistency between English law on this subject and article 10 of the European Convention on Human Rights. This is scarcely surprising, since we may pride ourselves on the fact that freedom of speech has existed in this country perhaps as long as, if not longer than, it has existed in any other country in the world. The only difference is that, whereas article 10 of the Convention, in accordance with its avowed purpose, proceeds to state a fundamental right and then to qualify it, we in this country (where everybody is free to do anything, subject only to the provisions of the law) proceed rather upon an assumption of freedom of speech, and turn to our law to discover the established exceptions to it.”
[237] Unlike most other nations that legally
protect freedom
of speech,
Appeal point 9 - It
is the Appellants’ contention that the “War on Drugs” and subsequent
“tough on
drugs” and zero tolerance legislation are illegal and breach
international law
[238] The Appellants want to point out to the court from the outset that they are among the growing numbers of Australians who believe that democracy in this country has gone down the tubes.
[239] As Dr Jo Toscano has said in the Anarchist
Age Weekly Review:
“When the Federal government introduces
legislation into Federal Parliament next week that allows Federal and
State
authorities to arbitrarily arrest, detain, interrogate and imprison its
citizens, it will unilaterally tear up a contract written in blood that
exists
that protects the individual from the ideological capriciousness of the
government of the day. Over the centuries, individuals, groups and
political
and social movements around the world have been involved in struggles
against
their rulers that, through the ultimate sacrifices made by millions of
ordinary
human beings, have won Australians the rights and freedoms we enjoy
today and
that we are so rightly proud of.”
[240] He went on to say: “No
government has the moral authority to unilaterally remove the rights
and
liberties, checks and balances that currently exist, that protect the
individual from the excesses of the State. Any government that does so,
betrays
the trust of the people it represents and governs and runs the very
real risk
of increasing the alienation that is being felt by an increasing number
of
Australians who believe that the democratic process is much more than
the
almost meaningless act of casting a ballot every 3 years to give a
politician a
signed blank cheque to do whatever they like for the next 3 years.”
[241] It is the Appellants’ position that Hitler and Mussolini’s brand of fascism did not suit their corporate masters. The corporations have worked with the governments of the United Kingdom, the United States and Australia to implement a new brand of fascism which ensures the continued domination of the world by corporations, our new world leaders.
[242] According to the 1984 edition of the Reader’s Digest Great Illustrated Dictionary, fascism is: “A philosophy or system of government that exercises a dictatorship of the extreme right, typically through the merging of state and business leadership, together with an ideology of belligerent nationalism.”
[243] The Appellants are of the sincere belief
that this is
the form of government that we currently have in John Howard’s
[244] For members of NAPNT, including the
Appellants, the
damage caused by this corporate leadership is obvious. One symptom of
this
corporate leadership is the “war on drugs”. As has been said by one
NAPNT
member: “there can be no war on drugs and
no war on terror, only war on people.” It is the Appellants’
contention
that the war on drugs is motivated by greed and fuelled by racism.
[245] Even though the war on drugs cannot be won,
royalties
flow to the corporations to pay for the pharmaceutical drugs to poison
drug
users and the Round Up used to poison Colombian coca crops (in anti-US
areas).
The royalties pay for the helicopters and weapons for the Thai and
Colombian
Governments and the incarceration of the hundreds of thousands of
people around
the world in the private prison system as a result of the war on drugs.
[246] The war on drugs is not motivated by
honourable
intentions and it is analogous with the
[247] Ironically, American helicopters are still
being used
in
[248] The Australian Government is complicit in the War on Drugs. In 1998, representatives of the Australian Government signed UN protocols promising to eradicate all illicit drug use by 2008.
[249] The United Nations met between June 8 to 10,
1998 in a
special session to develop a worldwide drug control strategy based on
the
failed model of the US Drug War. The UN is even mimicking the absurd
rhetoric
of the
[250] The Appellants refer your honours to the
page at the
following web address, www.drugsense.org/ungass.htm
[251] It is the opinion of the Appellants that anyone who subscribes to the view that a drug-free world is possible is either seriously deluded or a plain lunatic.
[252] The Appellants started fighting the war on drugs in the NT, by targeting the ‘drug house’ legislation, and by extension, that battle now encompasses free speech. The Appellants will continue the struggle and try to mobilise their brothers and sisters. If every person who uses illicit drugs got out on the streets tomorrow and demanded an end to drug prohibition, it would be stopped and the perpetrators would be made to answer for their actions. The stigma and discrimination associated with substance use prevents most people who use drugs from standing up and being counted. The threat of incarceration or losing your children or your home just because you are a drug user is very real and that is where people must ask themselves how far they are prepared to go to protect their rights.
[253] The media is an entirely different proposition. Suffice to say, the War on Drugs is killing our children, and if that's not news-worthy, we are doomed.
[254] Adolf Hitler once said: "How fortunate for governments that the people they administer don't think."
[255] This statement is even more telling when our news is limited and we are only told what governments and corporations want us to know.
[256] It is for these reasons, to prevent what
they saw as
unlawful acts on so many levels, that the Appellants took the action
they did
on May 14, 2002.
[257] The War On Drugs Is a Declared
War. We refer to drug law violators in political terms because
the
political nature of the war on drugs is readily apparent. We believe
that
prisoners of the drug war are actually prisoners of war, and that this
war has
been declared. The drug war has never been a metaphor. Read a quote
from Dan
Baum's book Smoke and Mirrors, it illustrates our point very well:
[258] "A full 83 percent of Americans polled in a 1987 opinion poll approved of reporting drug using family members to the police. It was in this atmosphere that the U.S. Supreme Court decided that drug defendants "even nonviolent ones" are inherently dangerous and can be denied their Eighth Amendment right of reasonable bail.
[259] 'We have repeatedly held that the government's regulatory interest can, in appropriate circumstances, outweigh an individual's liberty interest,' the Court ruled. 'For example, in times of war or insurrection...the government may detain individuals whom the government deems to be dangerous.' Thus was the War On Drugs anointed a real war by the Supreme Court."
[260] In
[261] We further state our point by showing that this over-broad
definition
has been applied to Australian citizens before. Italian and German
Australians
were deemed dangerous to the government during World War II and held in
detention camps "isolated from society" losing jobs, homes,
possessions and loved-ones. The same horror is being carried out
against Australian
citizens again.
[262] At least 3 people are arrested every minute for
[263]“Human rights are not exclusive to any particular society or
group of
individuals, and they are as relevant to people living in
[264] “Human rights are an inextricable part of our lives. In fact,
they are
so much a part of every day living that we often take for granted the
protection they offer us. Consider, for example, how often you drink
clean
water; eat food; go to school or university; say or write what you
think;
practice a religion (or not); vote for a political party; demand
privacy, and
expect to be treated fairly by others. All of these everyday activities
depend
on the adequate protection of your human rights as well as those of
your
neighbour. Where the protection is inadequate or missing altogether
your human
rights suffer.”
[265] “The fundamental importance of human rights is such that we
cannot
afford to neglect them. And to be sure that we do not neglect them, we
all must
know more about them.”
[266] This isn’t Gary Meyerhoff, Robert Inder-Smith or Stuart Highway talking, this is the introduction to the Australian Human Rights and Equal Opportunities Commission document “Human Rights Explained: A guide to Human Rights in Australia in a global context.” The Appellants couldn’t agree more with this staement, we cannot neglect human rights and we feel that it is our duty to highlight any breaches of human rights in our own back yard, and to be aware of human rights breaches that are happening around the globe and being part of the global movement against these human rights breaches.
[267] In regards to the NT ‘drug house’ legislation, the target of the May 14, 2002 protest, the Appellants argue that the legislation is unlawful for a number of reasons.
[268] It (the ‘drug house laws’) fails to
recognise a demand
for illicit drugs. The fundamental flaw of this legislation is that it
fails to
accept that people in the
[269] It only targets the dealers at the lower end
of the
spectrum. It seems that the legislation will target suburban “dealers”
who
happen to be low-income people, the majority of whom are drug users
themselves,
struggling to survive like everyone else. These people are the target
of the
drug house legislation and not the kingpins of the drug trade.
Although, if the
NSW drug squad is any example, the drug house legislation should most
definitely target the staff room of the police service’s drug
squad.
[270] It goes against the Federal Government
policy of harm
minimisation. The Australian Federal Government support the policy of
harm
minimisation but the NT Governments proposed drug house laws will serve
only to
maximise harm as they force drug users further into the black market
and
contribute to the maintenance of a climate of fear around certain
substances.
[271] It will demonise drug users and force drug
users
further underground. The drug house legislation will target specific
houses and
venues such as nightclubs. While the drug trade in
[272] Criminalising drug use is not the answer. The War on Drugs, as it is called, has forced the criminalisation of some substances for over 5 decades; surely we should have won the war by now. Over and over again we see governments running with the “Tough on Drugs” approach that has really been an abject failure. Simply criminalising drug use and building more and more prisons is not the answer to problematic drug use. We need to see a massive increase in the range of options open to dependent users, including more pharmacotherapies (in particular heroin), improved detoxification and rehabilitation services, diversified needle and syringe programs, reality based education for our young people and the community. An important myth that needs to be smashed is the myth that dependent drug users are inadequate members of society.
[273] It will discriminate against young people and indigenous people. Although the government is arguing that this legislation is part of a crackdown on drug dealing and distribution, they fail to recognise that young people and members of the indigenous community will occupy most of the houses they will target. There is ample evidence that zero tolerance policing is overwhelmingly directed at the least powerful and most vulnerable groups in society. This kind of intervention will impact in a particularly negative way on young people, the unemployed and the indigenous community. It will increase the already high level of street-based contact between the police and these groups of people.
[274] It massively increases police powers. Just
like the
juvenile diversion and illicit drug diversion initiatives that have
been
condemned by social justice activists and organisations like the Top
End Users’
Forum, the proposed drug house legislation will dramatically increase
police
powers. By allowing police to have houses declared “drug houses”, they
will be
able to attend the premises, enter and search without a warrant. In
NSW, the
drug house legislation allows a person to be charged with “being at a
drug
house”, even if there are no drugs present. This is a gross violation
of human
rights.
[275] It is a massive waste of taxpayers money.
The
[276] The NT Labor Government isn’t increasing treatment options at the same time. If the Labor Government was really committed to improving the health and well-being of users of illicit substances, they would implement a range of positive strategies, rather than implementing punitive legislation such as the "drug house" laws. Treatment options for dependent users could be massively increased, a heroin trial could be looked at, a safe injecting room opened, needle exchange options increased, but instead, Labor wants to double the size of the drug squad and give them a new law to play with.
[277] The legislation fails to address the real issues behind problematic substance use. Massive unemployment, family conflict, financial and work stress, prohibition: these are some of the reasons behind problematic drug use and these issues are not being effectively addressed by our society. Problematic drug use is a symptom of a whole wide range of societal ills that can only really be addressed by structural change. Blaming certain substances for societal ills is a favourite tactic of Australian and other Western Governments.
[278] The War on Drugs is insane, immoral and dangerous. The “War on Drugs” and subsequent “tough on drugs” and zero tolerance approaches are illegal and breach international law.
[279] To quote Ronald Reagan: “Government exists to protect us from each other. Where government has gone beyond its limits is in deciding to protect us from ourselves."
[280] Nearly everyone who knows someone who
injects drugs
knows someone who is living with the Hepatitis C virus.
[281] Hepatitis has swept through the Australian
community
like wildfire over the past decade or so and is continuing unabated.
People who
inject drugs continue to make up the vast majority of HCV infections,
despite
the excellent education and prevention work carried out by drug user
groups and
individual drug users in
[282] Community groups receive funding from
Federal, State
and Territory Governments, and are able to produce brochures, booklets,
posters, videos and websites, facilitate groups and run education
programs for
injecting drug users and people who provide services for them like
doctors,
nurses and drug and alcohol workers. Why then do injecting drug users
continue
to be over-represented in the statistics of new infections?
[283] The answer is simple – the seditious
enterprise known
as drug prohibition. Until we see the end of drug prohibition it will
be
impossible to break down the stigma associated with “drugs” and break
down some
of the barriers that prevent us from getting important health messages
out to
injecting drug users and the wider community (potential injectors).
This poses
a major challenge for organisations committed to preventing HCV
infections
among injectors.
[284] To some extent we have been successful in
educating
long term injectors about the risks of HCV and other blood borne
viruses. Where
we will continue to struggle is among the ranks of new injectors, many
of whom
are young people and many of whom because of fear and isolation choose
to hide
their new mode of administering drugs from their peers, their friends,
their
workmates, their families and even their partner.
[285] This is a double-edged sword for those of us
trying to
prevent HCV infections. New injectors are probably at a higher risk of
HCV
infection than someone who has been injecting for a while, but they are
the
least likely to inform their doctor that they are injecting drugs or
drop into
a drug user group to get some information.
[286] As long as drug users face the risk of
incarceration,
losing their jobs, their children and their families, they will be
reluctant to
access health and support services, including drug user organisations.
This is
a much bigger problem in rural and remote communities like those in the
[287] We can produce all the glossy brochures in
the world,
but if someone is too scared to take it home for fear of being
identified as an
injecting drug user, it is useless.
[288] It is time for the community to wake up and
tackle the
real cause of the massive rate of HCV infections in
[289] During the hearing, the Appellants all alluded to the fact that they had entered the chamber of the Legislative Assembly to prevent the NT Government from further perpetuating the War on Drugs with their “drug house” legislation. It is the Appellants contention that the war on drugs is a declared war and it breaches international law in numerous ways, one of these being the Nuremberg Principles:
[290]
Principle I. Any person who commits
an act which constitutes a crime
under international law is responsible therefore and liable to
punishment.
[291]
Principle II. The fact that internal
law does not impose a penalty for
an act which constitutes a crime under international law does not
relieve the
person who committed the act from responsibility under international
law.
[292]
Principle III. The fact that a
person who committed an act which
constitutes a crime under international law acted as Head of State or
responsible government official does not relieve him from
responsibility under
international law.
[293]
Principle IV. The fact that a
person acted pursuant to order of
his Government or of a superior does not relieve him from
responsibility under
international law, provided a moral choice was in fact possible to him.
[294]
Principle V. Any person
charged with a crime under international
law has the right to a fair trial on the facts and law.
[295]
Principle VI. The crimes
hereinafter set out are punishable as
crimes under international law:
[296] (a) Crimes
against peace:
[297]
(i) Planning, preparation, initiation or waging
of a war of aggression or a war in violation of international treaties,
agreements or assurances;
[298] (ii)
Participation in a common plan or conspiracy for
the accomplishment of any of the acts mentioned under (i).
[299] (b) War
Crimes:
[300]
Violations of the laws or customs of war which
include, but are not limited to, murder, ill-treatment or deportation
of
slave-labour or for any other purpose of the civilian population of or
in
occupied territory, murder or ill-treatment of prisoners of war or
persons on
the seas, killing of hostages, plunder of public or private property,
wanton
destruction of cities, towns, or villages, or devastation not justified
by
military necessity.
[301] (c) Crimes
against humanity:
[302] Murder,
extermination, enslavement, deportation and
other inhumane acts done against any civilian population, or
persecutions on
political, racial, or religious grounds, when such acts are done or
such
persecutions are carried on in execution of or in connection with any
crime against
peace or any war crime.
[303]
Principle VII. Complicity in
the commission of a crime against
peace, a war crime, or a crime against humanity as set forth in
Principle VI is
a crime under international law.
[304] It is
the Appellants’ contention that the ‘war on
drugs’ breaches the
Appeal point 10 - It
is the Appellant’s contention that due to the ongoing “War on Drugs”,
the
defendants have available to them the provisions of the Geneva
Convention, to
which
[305] Article 3, the text of which is repeated in all
four Geneva
Conventions, is the only part of the conventions that applies
explicitly to
internal armed conflicts. It has been called a "treaty in miniature,"
and sets forth the minimum protections and standards of conduct to
which the
State and its armed opponents must adhere. The protections it spells
out are at
the core of international humanitarian law.
[306] “In the case of armed conflict not of an
international
character occurring in the territory of one of the High Contracting
Parties,
each Party to the conflict shall be bound to apply, as a minimum, the
following
provisions:
[307] 1.
Persons taking no active part in the hostilities,
including members of the armed forces who have laid down their arms and
those
placed hors de combat by
sickness, wounds, detention, or any other cause, shall in all cases be
treated
humanely, without any adverse distinction founded on race, color,
religion or
faith, sex, birth of wealth, or any other similar criteria.
[308] To this
end the following acts are and shall remain
prohibited at any time and in any place whatsoever with respect to the
above-mentioned persons: (a) violence to life and person, in particular
murder
of all kinds, mutilation, cruel treatment and torture; (b) taking of
hostages;
(c) outrages upon personal dignity, in particular humiliating and
degrading
treatment; (d) the passing of sentences and the carrying out of
executions
without previous judgement pronounced by a regularly constituted court,
affording all the judicial guarantees which are recognized as
indispensable by
civilized peoples.”
[309] One of these judicial guarantees must be the right to a fair
trial.
The Appellants, as obvious from this submission, were not been granted
a fair
trial in the
[310]
It is my contention that due to the ongoing “War on Drugs”, the
defendants have
available to them the provisions of the Geneva Convention, to which
[311]
In 1969, shortly after his inauguration, President Nixon declared a war
on
drugs and crime.
[312] In 1970 the modern "War On Drugs" was born as the
"Comprehensive Drug Abuse Prevention and Control Act". Title II (the
"Controlled Substances Act" or "CSA") established 5
"schedules" of substances, with schedule "one" prohibiting
substances even from medical use (Marijuana was placed in schedule one,
despite
the recommendations of the task force that marijuana not be
criminalized). The
CSA affects an absolute prohibition on many substances, and provides
for
federal law enforcement to act even on an intrastate level.
Appeal point 11 - Wallace
SM displayed overwhelming bias against the Appellants
[313] This includes but is not limited to:
[314] Wallace SM ignored any defences put up by the defendants, namely:
[315] That the Appellants were justified in their actions in that they were attempting to prevent the parliament from breaching international law,
[316] That the Appellants had available to them the defence of provocation, in accordance with NT Criminal Code Section 34 Subsection (3), in view of the harassment and intimidation faced by the Appellants in the months proceeding the incident.
[317] Wallace SM did concede that the Appellants had been intimidated by the NT Police but refused to take this into account when reaching a verdict.
[318] Wallace SM disallowed many questions, on the basis that the above defences were not available to the Appellants. He also disallowed witness subpoenas on this basis, including Police Commissioner Paul White.
[319] Wallace SM refused to stand himself down from the matter due to his bias, despite numerous applications made by the defendants. Of particular concern is the relationship between Wallace SM and the Prosecutor, Peter John Thomas, Wallace SM ignored any applications of this nature.
[320] It is the Appellants’ contention that Section 61 of the NT Criminal Code breaches the right to freedom of speech and access to government implied in the Australian constitution. Wallace SM refused to adjourn the matter and refer it to the NT Supreme Court or the Federal Attorney General, in accordance with Section 162 of the Justices Act or Section 18 of the Crown Proceedings Act respectively.
[321] As stated, the Appellants believe that Section 61 of the NT Criminal Code impugned the freedom of speech and expression to which all in Australia are entitled.
[322] The decision of Wallace SM was inconsistent with and breached the Appellants' implied constitutional right to freedom of political discussion and communication;
[323] Wallace SM erred in law in construing the Code and, in particular, failed to have regard to the Appellants' constitutional right to freedom of political discussion and communication and the Appellants’ common law right to freedom of speech and expression;
[324] Wallace SM forced us to proceed despite the Appellant Meyerhoff’s application for an adjournment, on grounds of ill health, ongoing police harassment and intimidation, no legal representation and other reasons.
[325] Wallace SM refused our requests for internet access in the courtroom.
[326] For further submissions on bias, with extensive references to the transcripts, see appendix A to this document. Appendix A is fully endorsed and supported by all of the Appellants although it has been written by the Appellant Inder-Smith from his point of view.
The decision of
Justice Angel
[327] With regards to the September 17, 2004 decision of Angel J, his honour claimed that we want to decriminalise drugs when nowhere in the transcripts do we say that.
[328] His honour ignores Section 34(3) of the NT
Criminal
Code pertaining to provocation; ignores our contention that the
Magistrates
court had no jurisdiction to hear the case; it was a political trial;
video
selectively edited and Wallace was biased especially with his history
with
[329] Lange v ABC. Misunderstands key questions in the important phrase: “effectively burdens freedom of communication”. The answers to each key question should be yes and no in that order – therefore S61 of the NT Criminal Code IS “invalid’’.
[330] His honour erred in finding Dietrich v Queen ‘’not relevant’’. He said: (We) ‘’didn’t obtain legal advice’’. We said and the transcripts prove it that legal aid refused to represent us unless we pleaded guilty.
[331] His honour erred in finding there was no evidence of police harassment.
[332] His honour said there was no proof of bias or politicisation of the trial’’.
[333] His honour ignored the protections available to the appellant through the Geneva Convention.
[334] His honour erred in ignoring our defence available under Section 34 of the NT Criminal Code, provocation. His honour said “No reasonable person would have acted in the same way”. He presumes to know how we felt. Does his perspective of how people behave, extend to the press and to why people commit crime, apart from the obvious?
[335] His honour ignored our claims that Magistrate Wallace displayed overwhelming bias against the Appellant.
[336] The Appellants refer your honours to the website of the Network Against Prohibition NT – http://www.napnt.org.
[337] We’ll finish this part of our written submissions with another quote from NAPNT member Strider: “The “War Against Drugs” (no-country), Was it necessary? Psychological, softening up, to digest us, to accept a non-sensical “war against terror” think about it! The concept of war has been subjected to a radical redefinition.”
Appendix A
The Full Bench should he very concerned at the way Wallace SM conducted the hearing in the Magistrate’s Court in 2002-03, and equally as concerned with the contemptuous dismissal by Angel J of the defendants’ appeal against conviction.
What happened in the former was indefensible and appalling – and
that is before the legal ramifications are
explored.
The original two-week hearing was pockmarked by cowardice, chicanery
and
acts of bastardry.
History will show that Mr Wallace’s famous, shockingly wasteful
Parliament
Invasion trial plumbed new lows in
Despite what Justice Angel decided in the NT Court of Appeal 15
months
later, all the defendants have multiple reasons to feel that they were
the
victims of a gross miscarriage of justice.
Even if the charge of contravening S.61 of the Criminal Code were
proven
beyond reasonable doubt - the defendants maintained from the outset
that S.61
was unsustainable for a welter of reasons - Mr Wallace’s conviction
should have
been struck down because of his manipulation of the case, and
especially, for
comments he made during it.
Had Justice Angel read all the magistrate’s court transcripts, he, too, would have been given grave cause for concern. But by his own admission he didn’t and in his befuddled way, called into question his capacity to judge without fear or favour.
In fact, his dismissal of the appeal against conviction doubled the
wrong
committed against the appellants and Justice Angel himself has some
explaining
to do because of it.
Alarming questions leap from the many hundreds of pages of
(magistrate’s
court) transcript: questions about witnesses being protected, questions
about
inconsistent and-or arbitrary rulings, questions about how a magistrate
can at
best exaggerate, and at worst, fabricate evidence - and get away with
it - and
how he can so blatantly and shamefully exceed his powers.
Mr Wallace’s calculated determination to protect the witnesses will
come
back to haunt him. His personal enmity of and bias against one of the
defendants – me – was an undisguised bias against all the defendants,
who did
not have the benefit of legal representation.
His comments, some of which can only be described as gob-smacking,
betrayed
him, his state of mind, his modus operandi and his conceit. For this
reason, Mr
Wallace was hoist with his own petard.
The defendants suffered and are still suffering as a result of this
undeniable travesty, farce and scandal.
One big question is this: whatever happened to the democratic notion
of
separation of powers that supposedly divides the judiciary and
legislature?
Still more serious and over-arching questions are the ones defendant
Stuart
Highway might want to ask His Worship about a certain admission he made
in
court on February 17, 2003.
This pertains to a four-centimetre scar on the back of Stuart’s head.
If ever there were any doubt about how it got there, there is none
now,
given the astonishing revelation by Mr Wallace, that Stuart’s head was “cut open” by an NT police officer
eight years ago (see page 17)
Why Mr Wallace, the presiding magistrate in the ensuing court case,
did not
rule in Stuart’s favour at the time, gives fresh cause for speculation.
If, having made that pronouncement, Mr Wallace suddenly realized
that Stuart
had therefore been the victim of a miscarriage of justice in that 1994
hearing,
he did not seek to alleviate the crime by standing himself down from
our trial.
Just the opposite, he compounded it by refusing repeatedly our requests that he do so. These were instigated by Stuart, who on the strength of the ’94 hearing, trusted neither Mr Wallace nor prosecutor Peter John Thomas who co-incidentally, was also the prosecutor in ’94.
Why the defendants did not leap upon the comment and-or pick it up
in time
for the Justices Appeal hearing before Justice Angel is irrelevant.
Suffice to say, the ghost is well and truly out of the closet and Mr
Wallace
would have some explaining to do, should he be asked all of this.
He would also have some explaining to do about why he lied – not once, but twice - to save face for the Attorney-General (see pages 29-35).
This perfidious treachery demands an inquiry.
It goes without saying that on these grounds alone, the Full Bench should overturn Wallace’s conviction, set aside Angel’s decision, and order a retrial.
Justice David
Angel’s
decision
NT Court of Appeal
Justice Angel gave the impression he had our best
interests
at heart.
During the three-day hearing, he was at times
helpful, as Mr
Wallace had been in the magistrate’s court, and seemed to be
sympathetic to our
cause.
He gave us our head and let us speak our peace.
We expressed gratitude for his unsolicited tidbit
about Lord
Buckmaster, the morphine addict,(1) and nodded appreciatively when he
said
sagely, “You’ve got to have a good memory to be a good liar”.(2)
Little did any of us know, that even as he spoke,
his words
had already been proven true and given resounding emphasis from a
highly
unlikely quarter.
Unfortunately, Justice Angel’s decision was as
much a
miscarriage as the original Magistrate’s Court hearing 15 months
earlier.
It was flawed in dozens of areas, and seriously
flawed in at
least two of the conclusions he himself drew from testimony of the
appellants
during the Justices Appeal hearing, in August-September, 2004.
Included in his decision was a raft of highly
contestable
assertions and demonstrably false extrapolations. As well, many of the
rules of
law cited and used against the appellants have philosophy at their
core, which
was a point dismissed by both Wallace and Angel.
For instance, Lange v
the ABC (High Court, 1997 [89 CLR 520 at 567-568]) – a precedent
used to
prosecute previous Network Against Prohibition criminal court cases -
is losing
its force. This is because the two fundamental questions upon which it
is based
and which are used to determine whether a law infringes upon
constitutional
freedoms, are not clear cut. To the contrary they are based on flawed
premises
– the first being that the (Australian) public is “sufficiently
informed that
they (can make) intelligent decisions which may affect themselves”;(3)
the
second being that we live in a democracy.
Nobody who has noticed the glaring diminution in
the size,
scope and influence of Australia’s mainstream (print) media in the
past, say,
50 years, or who has seen the convergence of the mainstream political
parties
in the past 20 years, or indeed, who has witnessed and felt the
explosion in
the number of laws passed since World War II, could counter this
argument.
Those arbiters of law who argue that freedom of speech is not
absolute, must also agree that democracy is (no longer)
absolute, and therefore any law premised wholly on both, is vulnerable
and open
to debate – as is Lange v the ABC.
If anything, the answers to both questions posed
in “Lange”
are the opposite of what is generally ascribed to them by judges and
magistrates. This makes the law under which the appellants were charged
– S.61
of the NT Criminal Code – not only superficially invalid, but also
demonstrably
invalid.
I am not venturing down all roads. What I shall
focus on are
the more obvious errors made by Justice Angel, for they are the ones
that have
insulted the appellants and betrayed him the most. They have, in the
process,
sheeted home the reality that well-meaning as he might have sounded
initially,
he was not up to hearing our appeal.
His two most blatantly erroneous discourses are:
1) That we, the
defendants,
“believe all drugs should be decriminalised”(4)
(emphasis added); and
2) that “the Attorney-General made
some comments adverse to the appellant Inder-Smith to the effect that
the
public was sick of (him) and his attitude to drugs”.(5)
In the first instance, Justice Angel has confused decriminalise with legalise. Not one of
the defendants/appellants advocated the former
in either the Magistrate’s Court, or before him in the Court of Appeal.
Decriminalisation was discussed in evidence in chief on March 5 - but
not as
the policy of choice by the defendants. The Network Against Prohibition
wishes
to see illicit drugs legalised.
In the second instance, Justice Angel confused me
with my
co-appellant Gary Meyerhoff. His comment, “there is nothing in the
appellants’
complaint in this regard”(6) is therefore meaningless. (For the record,
I weigh
95kg and am bald. Gary Meyerhoff is hursuit and slim.)
A third, equally unforgivable error was Justice
Angel’s
statements that there was “no evidence” that (we) had endured a
constant and
ongoing campaign of police harassment and intimidation.(7)
Had he done his duty and read the transcripts, he
would
realise how repugnant those claims were.(8)
Despite these obvious flaws in his thinking,
Justice Angel
was determined that he was right and we were wrong. Co-incidentally,
that was a
trait shown by Wallace SM.
Two particular instances are worth highlighting,
one small,
the other quite significant because it shows that Justice Angel’s
memory is not
as good as perhaps it once was, and certainly not as good as he boasts.
At the
top of Page 7, on
“Also talking about the raggedy trouser - it's
from the book
The Ragged Trousered Philosopher.”
HIS HONOUR:
“Philanthropist.”
MR INDER-SMITH:
“Philanthropist, sorry - I've only got half the word. It also
comes to
philosophy . . .”
Wrong, Justice Angel. The title of the book is
indeed, The Ragged Trousered Philosopher.(9) But
I couldn’t tell him because not all the word “philosopher” was visible
to me on
my documentation at the time, so I had to take his word for it.
The second example came the next day while
co-defendant Gary
Meyerhoff was talking to him. Again on P.7 there is this exchange:
HIS HONOUR: “Yes,
but as I said yesterday, it's not unique to the
MR MEYERHOFF: “Well,
to
HIS HONOUR: “And
WA.”
MR MEYERHOFF: “I
beg
your pardon?”
HIS HONOUR: “
MR MEYERHOFF: “I'm
not sure on that one, your Honour.
According to research that we did, we could only find the law in
No, Gary you were right and Justice Angel was
wrong.
It raises the question, if Justice Angel was wrong
about
these, what else did he get wrong during our appeal that we didn’t know
about?
Worst of all, though, over and above all the
confusion,
mistakes and insults, was Justice Angel’s declaration that there was
“plainly
no miscarriage of justice”.(10)
Only two conclusions can be drawn from this
(setting aside
the avalanche of conflicting assertions and the presumption that we
were guilty
as charged): either Justice Angel never spotted Mr Wallace’s
manipulation of
proceedings in the Magistrate’s Court, with all the attendant bias and
wanton
magisterial hyperbole, and fabrication and cronyism,(11) and his
witness
protection racket and stonewalling of the defendants, or the two
unmistakable
lies he told for the Attorney-General(12) - or he did.
If the former conclusion is true, the only option
remaining
is self-evident. If the latter is true, then it is to Justice Angel’s
eternal
discredit and the result should be the same.
That Justice Angel failed to overturn the
conviction,
doubles the size of the wrong done to the appellants, and intensifies
the
contempt shown to the likes of
_________________________
Notes
1. Justices Appeal testimony (JAT),
2. Ibidem. August 30, p.48
3. Lord Simon of
Glaisdale in A-G v Times Newspapers [1974] AC 273 at 320.
4. Angel J’s decision, at 5.
5. Ibidem. at 40.
6. Ibidem. at 6.
7. Ibidem. at 18 and 28.
8. In JAT, bottom of p.112,
9. http://www.fullmoon.nu/book/chap.php?id=c12
10. Decision at 43.
11. On March 5, on p.141, Wallace SM refused all
questions
about government policy. He protected senior Cabinet ministers
12. See pages 29-35.
Submission by Rob Inder-Smith
defendant,
October
2002 to June, 2003
What follows is a
date-by-date exposition of what I believe constitutes
sufficient grounds for the ordering of a retrial following the two-week
hearing
in
Certain things that
occurred and that were said, and certain rebuttals
Mr Wallace threw at me personally cannot be ignored.
They prove that I was
denied a fair trial, and if I was denied a fair
trial, so were my co-defendants.
The issues were as
“harmless” as Mr Wallace refuting my assertions of
what witnesses had said (witnesses Elferink and Scrymgour’s evidence
being
cases in point) and encroach into far more serious ground (Dr Toyne’s
role or
non-roll in the Drug House legislation).
The final document,
“For The Record”, demonstrates clearly the malice
Mr Wallace harboured for me personally.
There is much worse and
for this reason this summary must be given full
scrutiny by the Full Bench. For convenience, I shall state that the
events
highlighted from pages 29-35 alone
should be of particular concern.
• My words are in
italics for convenience of printing.
I’m not an experienced
lawyer (EL).
But I would have
thought that ANY evidence that has been tampered with
during the commission of a crime would be inadmissible in a court of
law.
Unfortunately I have
not been able to find a precedent in this regard,
and rules of evidence remain at large. But it seems common-sense to me.
Yet that is what
happened during our magistrate’s court hearing, in
which the prime piece of evidence - the parliamentary video tape – was
admitted
even though it was proven to have been tampered with. The evidence came
from
the video tape operator herself, Cheryl Villaflor, the first witness up
on day
one of the trial.
Witness #1, Villaflor
Top of p22 So all the
five cameras are working at the same time . . . (next
par) I can manipulate them to an individual speaker, or
I can pan out around the chambers just to see who's there and what's
happening.
Why did she operate only
one?
Bottom of p.24 – Wallace:
. . . if the (video) turns out to be inadmissible, such as
confessions
often do.
Mr Wallace knew the tape might
be inadmissible
Topof p.33
Villaflor: I can zoom in and out
onto particular people or objects, chairs, move it around the chamber
as far as
it will pan.
She answered “'yes’' to
the question, Did you use those controls during that part of the
tape we've
just seen?
Top of 34: Only me at
the panel . . . (bottom of 34) I just zoomed in on the camera
that . . .
I thought was best at the time.
p.35: Thomas: Any
evidence that this (tape) has been edited or
altered after you created it?
Villaflor: No.
Then Opposition leader
Dennis Burke reveals his surprise at the final footage, saying on P.331 of March 7, 2003, while
being examined by Lambe: Well, my understanding is that they can -
they can
take about four shots at once and what surprises me there is that there
only
seems to be one - one camera working, so I don’t know whether it
was only
one person using one camera but it has more capability than what’s
revealed
in that video.
On May21, 2003, p.17,
Thomas, during his closing submission, said the
final video was a result of (Ms Villaflor's) manipulation of
the
controls available to her.
On June 5,
at top of P.7,
Wallace says the video was compiled at (Ms Villaflor’s) discretion.
It is established that
the evidence is tainted. The tape was interfered with during
commission of the alleged crime. Wallace stayed silent on this
obvious
fact, depriving us of a fair trial.
Back to
October 31:
Our intentions are
discussed on pp67-70 while witness # 2 Lorrain
Braham, the Speaker, is in the dock. Aaron tried to make mileage (of
intentions), saying on p.68: Now as
you said that, only I can be aware of my intentions, do you think that
the
court has the power to tell me what my intentions were that day?
MR THOMAS:
Objection, Your Worship, it’s irrelevant.
Then, on the next page,
we had Ema Corro discussing the issue. Why was
it irrelevant when the first word of the charge was “Intentionally”
(disturbing)? The issue of intent was relevant and we were persisting
with it
four months later, on February 17 (middle
of p38).
MR STALLARD-BRYCE: I don’t think there’s anything
better
than saying that you can’t tell me what my intentions were . . .
The issue of intent
was not explored enough by us. We should have questioned the charge. We
should
not have allowed ourselves to be put off by Mr Wallace. But we
weren’t ELs
Then we come to witness #
3 John Elferink. What a shemozzle his
evidence was. Early in our cross-examination of him, on p74, he was effusive, saying we
''jumped
around, yelled things out”. On top of p
of 75, people were ''yelling, and screaming''.
Importantly, at the
bottom of p.74, he begins to moderate his language. He says this: (he)
saw
me (the bald-headed gentleman) climbing onto the table in the
centre of
the chamber. We’ll come back to that
adjective.
What he told Ema Corro
at the top of p.79 was this:
MS BIRKELAND-CORRO:
Okay, you said that you saw protesters jump onto the table and
dance
around; is that correct?---Yes.
So you actually saw protesters jump onto the
table?---Yes.
How? In what way did
they jump onto the table? When - -
-?---Well they climbed up onto the table in the centre of the chamber -
- -
They climbed?---And then danced around on the
table.
What do you mean by dance?
What kind of dance?---Well if you’re asking me to say whether it
was a
mambo or a stomp, that’s not what I was referring to, as you well know. What I was – what they were doing was they
were – they jumped up onto the table, they were standing on the table
and they
were moving back and forth upon the table, holding signs above their
heads.
What do you mean by moving back and forth?---I
don’t know
how more simple the English can be, they were standing on the table, jumping
on the table, moving back and forth across the table, so back from
one end,
forth to the other end and back again.
On page 82, Wallace
unfurls his witness protection program. He definitely muddies the
waters/distorts evidence with a pedantic discourse about semantics. At
the bottom
of p.82 he triggered this nonsense:
Mr Inder-Smith, I must say - I might be wrong, but
I
don't recall Mr Elferink speaking of people jumping up and down, he
certain
said they jumped on the table - - -
MR INDER-SMITH: Well
jumping on the table - - -
HIS WORSHIP: -
- -
and jumped about, but - - -
MR INDER-SMITH: He
said danced, he said dance - - -
MR STALLARD-BRYCE:
Actually, Your Honour, he actually said after climbing on
the table
they jumped around.
MR INDER-SMITH:
That's right.
HIS WORSHIP: No,
jumped around - - -
MS BIRKELAND-CORRO:
And danced.
HIS WORSHIP: -
- -
jumped around - - -
MR LAMBE: Jumping
around, sir, that's the exact quote.
HIS WORSHIP: But
not
jump up and down, that's the issue I'm taking with your question.
MR INDER-SMITH: Well
I'll ask him again - - -
HIS WORSHIP: Yes.
ME: Did you see
people jumping around on that table?---I saw, as I described before,
people
moving around on the table and I described it as jumping and dancing,
those
were my choice of words. If the court
wishes to place some sort of different meaning on those then that is
the
business of the court.
Mr Elferink, I - yeah - no, no, you missed the
point, the
simple question is a yes or no, did you see people jumping around on
the
table?---Yes.
You did?---Yes.
Well I - - -?---That is my choice of adjective; if
you have
a problem with it, then that's a matter between yourself and the
magistrate.
Well I just hope that it doesn't become a problem
for you in
future hearings or - - -
MR THOMAS:
Your Worship, the - - -
HIS WORSHIP: Yes,
Mr
- - -
MR THOMAS: - -
-
defendant is arguing with the witness.
HIS WORSHIP: Yes,
he
is, sergeant.
Yet earlier, there it
is at the top of P.81, in response to Aaron
Stallard-Bryce, Mr Elferink said: “They danced and jumped as I
described
before''.
Elferink remained
certain that he had not exaggerated. Yet on
p.87, he retracts his evidence AGAIN with
Did he know what he was
talking about at all? Where was his reliability as a witness? Why
didn’t Mr
Wallace just say to him, “Was there jumping or was there not?” Did Mr
Wallace
know himself, what Mr Elferink said?
On p.95 witness #4 Len Keily continued the
hyperbole royale:
“There was . . . yelling down at people'', which
was part of this quote: “Jumping up on the table, jumping into the
Speaker's chair, yelling down at people”.
Wallace's contemptuous
treatment of Aaron's was evidenced by comments such as this: I
will ask
other witnesses the same question, too.
At the bottom of p99
to the middle of p.100, Kiely is evasive. Did we (jump) or didn’t we?
He, too,
waffles to deflect attention off his own exaggeration and lack of
credibility.
I say to him: Did
you see me doing that, Mr Kiely?---Look, I can't really say whether you
were
doing that or what you were doing, I mean, you know, my - - -
But you did use the term 'dance' and I need your
clarification (inaudible)?---I didn't use the term 'dance'.
You did, you said earlier - - - ?---You used the
term
'dance'.
MR THOMAS:
Objection, Your Worship - - -
MR INDER-SMITH: No,
jump, sorry, I beg your pardon.
HIS WORSHIP:
Jump.
MR INDER-SMITH: Jump
- - - ?---Yes.
- - - I correct myself, I apologise.
You did use the term 'jump'?---Yes.
Now did you see me do what my colleague just did
then?---If
I used the term 'jump' then I'd say yes I did.
You did see me doing what
Well I remind you, as I reminded Mr Elferink, that
you are
under oath and that exaggerations can be termed as lies in some cases -
- -
MR THOMAS:
Objection, Your Worship - - -
MR INDER-SMITH: -
-
- but I shall move on, I shall move on - - - An
EL would not have given up
so easily.
The evidence of neither
Mr Kiely nor Mr Elferink was challenged by the magistrate. Mr Wallace
made no
mention of them in his summing up. In fact Mr Wallace didn’t criticise
ONE
witness in his summing up, even though the evidence of all of them was
much the
same as Elferink’s and Keily’s. Still, worse was to come.
Hocking didn't interview any witnesses. Rebecca
Morse, a
prime INDEPENDENT witness, was not interviewed. This exchange between
Hocking
and Meyerhoff on p.27: You didn’t interview Rebecca Morse for ABC
TV?---No.
At no stage you spoke to Rebecca Morse?---I don’t
believe
so.
At the bottom of p,12
MEYERHOFF: And on top of the harassment that we’re
receiving
from the police, we have been subject to what I perceive as bias within
the
judiciary in terms of magistrates. For
example, magistrate – Magistrate Trigg showed a clear bias against me
because
of my political affiliations. And in
fact in the transcript from Mr Deacon’s matter Mr Trigg said - - -
HIS WORSHIP: Mr
Meyerhoff, why tell me this? If
you’ve got any complaints about me, fair enough. But if Mr Trigg or
any
other magistrate said something disobliging about you then I’m better
off not
knowing about it, and you’re better off that I don’t know about it.
MR MEYERHOFF: I believe, sir, that it clearly
shows a bias
from two magistrates within this magistrates court. And that that is
extremely
relevant to the defendants. And it’s –
you know, I don’t believe any of these quotes will hinder the defence
of any of
the defendants in any way.
But when Mr Trigg says that, ‘Some of the names
are fairly
familiar to me through the courts, some of them I would expect would
look at it
as some opportunity to try and push some form of political barrow’. That is of some concern to myself. And he goes on to say that – talking about
the remaining defendants that he would have thought that from what he’s
seen on
the video, that people would be looking at somewhere approaching 18
months’
imprisonment. This is before he’s heard
any evidence from any of these defendants.
To me that’s clearly judicial bias.
And also the treatment Ms Corro received from
Magistrate
Loadman . . .
We don’t need to
remind the Full Bench of the two Loadman decisions that have since been
overturned by this court – for bias.
Toward the bottom of
p.14,
We can’t even afford to print or purchase copies
of NT
Legislation and can probably safely say that most of the defendants
haven’t
even looked at the Criminal Code or the Powers and Privileges Act or
any of the
Acts that will be discussed in this case.
We have no access to those documents, which means that it’s
extremely
difficult for us to defend ourselves in this matter.
Then on 15:
Putting further pressure on defendants, Federal
and
Territory Members of Parliament have refused NAP members access to
photocopying
and other resources, so it – we can’t get the free access that other
community
groups have to a photocopier to photocopy legislation, judgments from
various
courts, and other documents that we may need.
And at the top of 48:
We needed funds and an
EL – simple
To us, February 17 was a most damning day of
bias, Not
the least of which was proof conclusive of the unhealthy familiarity
that
existed and most likely still exists between the magistrate and
prosecution
lawyer. The first comes on Page 11:
HIS WORSHIP:
Excuse me, Peter, would you ask Mr Lambe to come back in please?
Again at the middle of p.62 (Meyerhoff
cross-examining): Here
we are, Peter.
Curiously, on March 3,
at the very bottom of p.34,
there is also this:
“It’s that one John”
There’s no attribution
for that March 3 remark. But I know that none of the defendants would
have said
that. A considered guess would be that it was Mr Wallace. We’ll never
know for
sure, because as you can see, the transcript doesn’t say who said it.
If
Mr Wallace didn’t think there was anything wrong by addressing the
prosecution
in such friendly terms, why didn’t he continue to do so throughout the
entire
trial? There remained another two weeks left to run. But not once after
February 17, did Mr Wallace call him Peter. He was careful in fact, to
address
him only as ''Sergeant” or Sergeant Thomas”.
Back to February
17: Earlier, on P.6
In the middle of P.16, we
get to Toyne’s non-charge.
MEYERHOFF: Also to us of
concern is – and this has been raised in court previously, and as an
issue hasn’t
been addressed. The fact that the Attorney-General, Mr Toyne, we
believe
interfered with court process and is guilty of contempt of court. And
on ABC
Radio on Friday 27 September last year (2002) ---
HIS WORSHIP: Once again Mr
Meyerhoff, whatever Mr Toyne said on ABC Radio, as far as I know I’ve
never
heard it - - -
MR MEYERHOFF: Well - - -
HIS WORSHIP: - - - I don't
listen to ABC Radio very often. So he hasn’t interfered with the
process of
this court because I’m blissfully ignorant of what he said.
Next comes this very
odd and unmagisterial-like remark. Clearly, it is
an undisguised threat:
HIS WORSHIP: And if you’re
going to read it out to me, it won’t be Mr Toyne who’s interfering
with the legal system, it’ll be you. Because you’ll be disturbing my
state of
blissful ignorance about these comments, whatever they were.
I open my big mouth
giving Mr Wallace a perfect chance to move into
damage control. At least that’s what he attempted, but his message is
garbled:
HIS WORSHIP: I understand
that, Mr Inder-Smith, but if I – I certainly don’t have any way of
knowing
what’s in the Attorney-General’s mind, unless he speaks and I happen to
hear
him. And if he spoke on an occasion, I haven’t heard him so I don’t
know what
is or was in his mind.
MR MEYERHOFF: There is a
precedent, Your Worship, in that Denis Burke walked out onto the steps
of the
Supreme Court and said a number of things to the media, this is the
exact
same situation. It wasn’t within the Supreme Court, it was outside
the
court. The judge may not have heard the comments in the media, but
Mr Burke
was found guilty of contempt of court and fined.
HIS WORSHIP: I understand
there that the finding against Mr Burke was that his remarks were
likely to
affect the conduct of the litigation by some effect upon the
plaintiffs,
not upon the court itself. So it was a – isn’t that right, Sergeant
Thomas?
Mr Wallace articulated
the very concerns that should have been paramount. Instead, with a few
dismissive sentences of gobbledegook, he has moved from wanting to
remain
“blissfully ignorant” about the serious
issue of possible contempt committed by the Attorney-General, to the
more
trivial issue of what might be on the AG’s mind. Then he has the
audacity to
follow up his “isn’t that right Sergeant Thomas?”, with:
I’ve never really
followed that sort of legislation.
Was his regaling in his
own ignorance supposed to engender confidence
among the defendants?
Mr Wallace should have been
very concerned when contempt was committed by witnesses in the case. He
was
equally dismissive of our claim that Marion Scrymgour also committed
contempt
during an interview she gave with the ABC immediately outside the
courthouse.
This from May 21, p.2:
MR INDER-SMITH: Okay. First
of all I shall ask the court if anyone here among the prosecution or
yourself
Your Worship, heard the
HIS WORSHIP: I can sure you,
Mr Inder-Smith, the only radio I listen to these days is KICK FM which
doesn’t have any news on it at all.
MR INDER-SMITH: The reason I
mentioned it, Your Worship, we have strong reason to believe that contempt
of court might have been committed by Ms Scrymgour who was
interviewed
personally by the ABC outside this magistrates court, and that’s of
some
concern to us. Moves are afoot to get a transcript of the broadcast and
the
ensuing street (inaudible) that I believe they did.
HIS WORSHIP: In that case, Mr Inder-Smith, probably the less said the better because as I say, I didn’t hear that news, indeed I didn’t hear any news. I saw about five minutes of the television news last night and that was all, and it wasn’t on the – anything to do with this case. He then moves on.
Back to February 17
On p18
Mr Thomas makes this naïve and curious
comment. Was he trying to change the subject?
MR THOMAS: I thought the
incident to which Mr Meyerhoff refers was resolved in the media rather
than by
court action.
We have big problems with what is about to
follow. It
pertains to bias:
On page 20 an eight-year-old ghost is about to
be
released from the closet. It is one of several stunning and extremely
dubious
moments that give sufficient grounds for the trial to have been aborted.
Mr Wallace asks Mr Highway do you have a
position on
whether you want the matter to go ahead today or not?
HIS WORSHIP: I
think
I can vaguely recall the case you’re talking about.
HIS WORSHIP: Must
be
a long time ago now.
HIS WORSHIP: Well,
that’s mostly a matter for him,
MR INDER-SMITH:
Excuse me, sir, is that appropriate that. That
is what he says. I mean, it’s not in your
position to decide
that. I find that peculiar, in the
least.
HIS WORSHIP: Well,
the situation as I understand it is once – well, in fact, as I remember
it, is
once long ago Mr Highway was the alleged victim of an assault, and in
the
course of the hearing against – I’ve seen him since at Daly River, Simon
Freson was it?
MR THOMAS: Yes, Your Worship.
MR INDER-SMITH: A
charge of perjury is very serious.
HIS WORSHIP: In the
course – no, no – in the course of the hearing against the man –
policeman
alleged to have assaulted
Then this astounding statement:
There’s no doubt
he got his head cut open by Mr Freson.
That is the first of a
welter of damning statements made by the magistrate. What does that
remark say
about his handling of the 1994 case? Is Mr Wallace suggesting that he
“got it
wrong”? If he believed that then – that “Mr Freson . . . cut open
Stuart’s
head” – how could he have not found in Stuart’s favour?
Should that case be
reheard as well? My co-defendant
I say something about
the scar down his head, then this again from Mr Wallace:
HIS WORSHIP: Yes.
No doubt he was pursued by Freson and ended up with his head cut
open,
the question was how that had come about.
I can’t remember much more than that. Anyhow, the fact that Mr
Thomas
has given evidence in a case against Freson, and that his evidence may
have
differed from that of Highway in the course – who also gave evidence in
the
case against Freson, hardly seems a reason to me why Thomas today ought
not to
be involved in proceedings against
That is dissembling at
its most convoluted.
Two sentences down,
Stuart again:
HIS WORSHIP: I
can
remember that.
HIS WORSHIP: Quite
possibly the case.
HIS WORSHIP: As
I
say
There’s no knowing
at this stage!? Earlier on he’d categorically stated that Stuart’s
head was
cut open by Freson. For the record:
There’s no doubt he got his head cut open by Mr Freson.
Continuing: Yes,
thanks,
HIS WORSHIP:
I don’t think that’s . . . going to
happen.
On the top of p.31, to
prove his ability to muddy the waters and subtly
change tac, Wallace turns once more to point the finger back at Stuart,
as if
to try to justify his handling of the’94
case:
All he needed to say
was that “I believed the police and not you”.
That’s all he’s really saying there, so why the waffle?
The defendants have big
problems with all the above. Justice Angel should have noticed it.
Four pars down, back on
p.28, Mr Wallace is digging his heels in:
Wallace: The suggestions
of bias within the judiciary don't seem to press upon my
discretion
in relation to granting an adjournment in this case. And once again, it’s
hard to see how that bias is going to change if it exists, by
virtue of an
adjournment.
He’s almost admitted
that he is biased and it doesn’t matter anyway,
because the case will proceed. Remaining
steadfast to the end, and refusing to either grant an adjournment much
less
disqualify himself, Mr Wallace says this five pars down on p.29:
HIS WORSHIP: Those reasons
seem to me – all of them, inadequate to grant an adjournment.
Five pars down on p.30 Mr
Wallace refers to it as . . . the sort of routine grief which is
caused by
court proceedings, to witnesses and defendants and is just incurable.
Then we move back to
exhibit #2, the video tape. I’m not sure if what commences in the
middle of
p.33 worked in our favour, or against us. We go from more waffle by Mr
Wallace
then Mr Thomas mentions Luppino SM’s refusal to issue the video and how
there
were to be “no copies were to made” and that “that’s been the order
from a long
time back”.
In a bizarre
This comes as a surprise to
the prosecution.
He says he’ll have to
“convey that to Madam Speaker” and that Mr
Wallace has “ruled against” him.
HIS WORSHIP: Yes.
MR THOMAS: And she’s been
under the impression since August that this matter would – that this
was a
settled question. Your Worship has now reached a different position.
HIS WORSHIP: Yes.
Yes. That’s all Mr
Wallace could say about this stunning reversal that hit
the prosecution like a bolt from the
blue. I’m not sure whether it helped the defendants or not. An
EL might
have known better and advised us accordingly.
Either way, for some
reason, Mr Wallace has suddenly changed his
mind – almost as if to take the heat off himself for the
Highway-assault
business, and to appease us. The question must be asked though: what
else did
he change his mind on? Did anybody tell him to change his mind?
We move in the middle
of p.36 toward Mr Wallace’s personal dislike and
bias against individual defendants, and hence, all defendants. I know
he
disliked and was biased against me, and I’ll prove why. Earlier,
however, I
mentioned young Aaron Stallard-Bryce, who got the magistrate’s goat up
with
comments such as this:
MR STALLARD-BRYCE:
Your Honour, no. Because after this
there’s going to be an
application put in for bias, because we know that everything that
has been
said in this court has been ignored, has gone straight off the
shoulders,
straight through the ears . . . We’ve all got good defence. And it’s been ignored.
Now why would I bother defending myself to someone
who’s not going to listen to my defence?
He is reproaching the
magistrate. That is unheard of. Here’s a man not
even 20, telling off the magistrate. Of course he was going to incur Mr
Wallace’s wrath. Then came this on
the next page (37): MR STALLARD-BRYCE:
No – that’s a part of it, Your Honour.
I also like to remind you, as
On pages 39/40
ensues discussion about selective editing of the video tape. On page
44,
Wallace says something that suggests there’s a bit of fait accompli
about the
whole issue – almost as if he knew what was panning out and how it
would end
up.
HIS WORSHIP: And
if he did I’d probably grant that request and issue a warrant. And if I did that you’d probably get
arrested. And once you're arrested you’ll be brought back before the
court, and
you’d probably make an application for bail, and I’d probably grant
that
application. You’d then be on bail, and
if you didn’t show up after that, you’d probably get another warrant,
and you’d
get arrested. And you have a lot more
trouble getting bail the second time. But that – you see it’s all
probably
this, and probably that, and maybe this, and maybe that.
But that’s the likely sequence of events
that happens in cases like this. So
that’s the most I can tell you. You can
ask Sergeant Thomas about the first one
Whatever all that
means.
Then on p.47, we
begin to get to the nitty gritty about him being biased – and this is
when I
believe his personal hostility toward me begins to show.
HIS WORSHIP: And
the last matter that arose out of all of that is Mr Inder-Smith, you
mentioned
a concern that I may be biased.
MR INDER-SMITH:
Yes, Your Worship.
Then there’s a few
exchanges and I say: I think your
position . . . might be called into question.
HIS WORSHIP: Well
- - -
And then Aaron and I
gang up on the learned magistrate, with Aaron saying:
I think we’d all need to speak up ourselves.
Then ensues a
discourse by me about our collective concerns about the obvious
friendship that
bonds the magistrate with the prosecution. I refer to perjury, then I
say this:
. . . it’s very pertinent to what’s going
on in this
courtroom today. And if . . . we are even remotely in a position where
we will
be victimised by let’s just say an exaggeration here, a distortion
there, I put
to you that we don’t stand a chance of justice . . . the fact that you
have in
a way aligned yourself with the prosecution . . . by paying no heed to
Mr
Highway’s claims that Mr John Thomas may . . . have lied.
I wind up by saying,
It makes me feel uneasy.
MR STALLARD-BRYCE:
Hear.
MR INDER-SMITH: I can’t be more specific
than that, but I
trust you’ve got the gist.
MR MEYERHOFF: If
I
could speak further on that?
HIS WORSHIP: Yes.
MR MEYERHOFF:
Yeah, I’d make an application as well, sir, that you disqualify
yourself
on the grounds of bias. Most of the defendants have this morning
developed a
perception that you are biased against us, and we’re concerned that
this is
seriously going to affect our ability to get a fair trial.
So Mr Wallace had
been chested. We’d put him on notice that we knew he was not going to
give us a
fair trial and he singled out Aaron and myself for “special” treatment,
as
shall be proved.
First, I highlight
another example of his stonewalling. It comes at the end of that quote
from
Gary, who says: You have ignored those submissions . . .
and ends with a
noticeably irritated Mr Wallace basically stomping his foot a few
sentences
later:
HIS WORSHIP:
Suppose that the DPP charge the Attorney-General with contempt .
.
. There’d be no basis for me to adjourn
these proceedings on that basis. Suppose
he does it, there’s no basis, it’s not worth mentioning
That is to say the
least, a curious remark to make to somebody trying to defend themselves
and
highlight an issue that in any other courtroom, would be given a lot
more than
the scant regard shown to it by Magistrate Wallace.
Then there is a few
paragraphs of
MR MEYERHOFF: I
actually have a copy of an e-mail I received yesterday which is the
Saturday 15
February, if I can hand that up.
MR THOMAS: No
objection.
HIS WORSHIP: Why? Why Mr Meyerhoff? I
don’t need it handed up.
I believe that any
reasonable person in the back of the court would have developed a
perception
that you are biased against us
Former television
reporter Derryn Hinch went to jail for commenting publicly in the
Father John
Glennon child molestation case 20 years ago, while the case was still
in
progress. That’s exactly what Toyne did. Is it because of who he is
that saved
him from the same fate?
At p.53 Wallace says to
me:
HIS WORSHIP: Yes, I’ve heard
those (complaints) and they don't strike me as being those that
would strike
a reasonable person as having any substance at all.
He’s implying that I’m not a reasonable person.
It
reaches a head at p56, where Stui reads from the transcript of ‘94. He
begins:
HIS WORSHIP: Sorry,
And it – you’ve got – you’ve, ‘I have endeavoured
as far as
can to put out of my mind of all the favourable – and they are
favourable
impressions I have of him, which have arisen from that contact. And I have endeavoured as far as I possibly
can to treat him as just another witness, and to judge his evidence’.
Not only that but you’ve shown a – you’ve
displayed a
pro-police bias. You’ve praised the
police, such as Jock McPherson, Sergeant Swift, and Simon Young. One police officer who has since been
dismissed from the Northern Territory Police for assaulting another
member of
the police which - who was his partner.
And he was dismissed from the Police Force for that reason, and
he was
last heard of running a hotel in Dili,
HIS WORSHIP: I’m
stumped,
MR STALLARD-BRYCE:
Your Honour, everyone else understands.
HIS WORSHIP: I’m
sorry, I don’t really know - - -
It spills over into the
next couple of pages. It is very worrying to defendants seeking a fair
trial.
Then of course, on P.62,
Wallace refers to “Peter” again.
That transcript read out
by Stui should have been tendered as evidence of bias. There is no
question an
EL would have submitted it, thereby rendering the trial dead in the
water from
that point.
We begin with Toyne's
contempt, at p5. Wallace says re ordering video copy:
We don’t have a great of
experience with contempt or court being followed up in this
jurisdiction, it’s
a decision of the Director of Public Prosecutions. But the Parliament I
imagine
would be extremely cross, and would do what it could to induce the
Director to
do what he could and the police to do that they could to investigate
and
prosecute such a matter, so it’s a serious undertaking, and if the
order is, in
fact, a serious order.
Whatever that meant.
Toward bottom of p.24,
Stuart talks of provocation/motive - to prevent commission of a
wrongful act.
To make a point that the
drug house bill which is being introduced by the Northern Territory
Government
was stupid, unreasonable and unworkable. And it was not appropriate for
the
February 19
P59: Exhibit 6 is the
photo which includes
On P.67 Mr Wallace says
to Aaron: when it comes to explaining anything like grace or
courtesy to a
person with no apparent manners, it's really hard.
That is clear and obvious
bias. Aaron never deserved that. He was NOT demonstrating poor manners
at all –
he was simply being outspoken.
March 3
Top of
p.35
Wallace: Yes, I can’t see
that it is not - or is certainly not relevant, I don’t really
understand the
defence - it’s being run but until the factual material is before
me, I
don’t know that I can really hear submissions on law unless it’s
possibly going
to assist me to understand the situation, whatever it is that gives
rise to whatever
the argument is for the defence.
March
4
More talk of
provocation pp13, 14, highlighted by this from
Wallace on 13: Wallace: So the
extension from a police officer or a pack of police officers on 20
April
(smoke-in) to the Parliaments seems to be a difficult one to justify .
. .
He failed to mention
the Drug House Legislation.
At the bottom
of p.19,
into P.20, Mr Wallace refers to section 34 of the Criminal Code, the
section we
stake much of our defence upon. He says:
there seems to be
numerous problems in applying either
of the available limbs of provocation to this particular alleged
offence. And,
looking at as I have, briefly, there seems to be numerous problems.
What about the effect
of cumulative provocation? I personally
have been angered for many years by parliaments ALL AROUND
Mr Wallace’s
undisguised dislike of me rears its head with this
antagonistic question and ruling on page 69: Mr Inder-Smith, do you
wish to
ask a question?
MR INDER-SMITH: Yes, if I
may, sir.
HIS WORSHIP: Well, I'm
sorry, you've missed your bus, you had your chance and you don't get
any more.
If I had missed the
bus, as he said, why did he ask me if I had any
more questions? That was a vexatious demonstration of him playing games and proof that he should never have
heard the trial.
March 5
The “assisted
passage” granted to certain key witnesses was
not among the finer court-room moments of NT judicial history. The
cross-examination
of the Attorney-General and Deputy Chief Minister, for instance, served
only as
a salutary lesson in how well a magistrate and politicians can work in
consort
to smash any notion of a “separation of powers” that supposedly exists
between
parliament and judiciaries.
First, we
deal with the Attorney-General.
At
the top of p.98,
under questioning about the “parliament invasion” by (NAP), Mr Toyne
says: It wasn't
discussed in Cabinet.
Was it
discussed in Parliament?---Well, I mean the - it is a
bit hard to say that there had been no discussion given that the
invasion that
occurred amongst us in Parliament. Obviously, people talk about an
incident
like that.
MEYERHOFF: So
it was discussed?---But there was no formal
discussion of any sort by Government.
He failed to
mention
that his boss Clare Martin lambasted NAP afterwards
in Parliament. That’s in Hansard. It
was a serious attack and Toyne neglected
to mention it.
More examples of where we
were stonewalled and refused questions came on pp98,99, Gary – Can you tell the court why the cabinet – or
why you as a minister have adopted the zero tolerance approach to
illicit drug
issues?
HIS WORSHIP: Mr Meyerhoff,
as I said yesterday and I think on Monday, as well, I can't see that
the – any
question directed at the reasoning or future intentions of the
government of
the past reasoning is relevant or of assistance to the court. What this
government allows – what government have done; what parliaments have
done is a
matter of record.
On p.101,
Again at the top of p.102
– Yes Mr Meyerhoff, I am not allowing that question.
On top of
p.106, Wallace cuts
So you had
mandate?---Well, all governments have a mandate.
Just answer
the question sir?
HIS WORSHIP:
Mr Meyerhoff I have disallowed that question
once I disallow it again bit (sic) in any event it doesn't follow from
the
previous question that you implied did.
MR MEYERHOFF:
Well, if they had consulted with the community
and they found that they had a mandate sir.
HIS WORSHIP:
Mr Meyerhoff it may be relevant for you to ask
about consultation because you may be getting onto the subject of your
own
attempts to put something into that consultation process. But otherwise
it
is not relevant matter. So if you could stick to - - -
An EL
wouldn’t have
given in so easily.
At the bottom
of p117 and into 118,
Gary to
Toyne: Are you aware
of any polls conducted by
the Northern Territory News with
regard to the government’s approach to drug issues?---No, I am not.
HIS WORSHIP:
Mr Meyerhoff once again that seems to be
straying into areas of what has effected the government's or
parliament's
policy but it doesn't seen to be directly related to your position. Or
that of
your defendants.
MR MEYERHOFF:
Again we are arguing provocation and
from evidence given by Mr Toyne there was a certain amount of indirect
lobbying
around this issue which it seems for whatever reason- - -
HIS WORSHIP:
Mr Meyerhoff as I have said before, I can see
that you might think and you might be right that anything you've done
or your
group has done or codefendants have done in order to agitate the
government to
your point of view, is admissible but it doesn't seem to me that a
catalogue of
all the other things that anybody has done to speak to the government
really
effects your position at all. You may say that it ought effect the
government's
position but that is not what we are here for.
Towards the bottom of
p.120 Mr Wallace again demonstrates his
protectionist policy of the witnesses. It was an important issue
for the
case, and a more important issue for Ema, now cross-examining, who was
charged
with aggravated assault as a result of her role in the parliament
invasion.
What better witness to ask about “due process” than the Justice
Minister?
Ema to Toyne:
I am not asking about your role, I am asking
about this due process - does it involve the right to a fair
investigation- - -
HIS WORSHIP:
Ms Corro, Doctor Toyne is saying it is not his
role. I think he has also implying that he doesn't have any experience
in
investigations and he may be reluctant to answer simply because he
doesn't know
what the general run of things is and the correct run of things is.
MS CORRO: I
think it is a pretty straightforward question.
Does he think that one of the things involved in justice is the right
to a fair
investigation. It is fairly straightforward.
HIS WORSHIP:
Well, if it means anything more than everything
should be lovely. Which we all agree with. But - - -
MS CORRO: No,
I mean fair as in actually investigated
actually.
HIS WORSHIP:
Anyhow I don't see that Doctor Toyne has any
particular expertise to answer that question any more than say, I have.
Not
that I am particularly expert either but you could put that as a
proposition to
me. You don't need to put it to a witness.
That bit of twaddle and
the careless remark that “everything should be lovely”, forced Ema to
retreat
into a different line of questioning. As a result, a simple but valid
question
went unanswered. Once more, Wallace protected
the witness and got away with it because of our ineptitude.
In the middle p.122, I
ask Toyne: Would you be happier . . . if there were no drug takers
and no
drug users and no drugs in the
Both were
leading
questions, but again they get to the heart of why we did what we did.
After
all, that’s what the Drug House legislation is/was aimed at achieving –
eradicating drugs and therefore drug users.
The
prosecution asked,
What was the relevance?, and Wallace stonewalled.
I didn’t
contest but an
EL almost certainly would have.
Next comes the first of
several reverberating remarks by the magistrate
on one particular topic, which conclusively betray him, his modus
operandi, his
state of mind, and his conceit. At issue are what on the surface were
confident
assertions by Mr Wallace, who must bare full responsibility for
allowing the
trial to degenerate into farce and become the mistrial that we always
claimed
it was going to be. If Justice Angel noticed these comments for what
they
really were, he failed to mention it at our initial Supreme Court
appeal in
August-September, 2004, and it is to his eternal discredit that he did
not act
and rule accordingly. Had he read the entire transcript, which he ought
to have
done as a matter of jurisprudential course and in the name of giving us
a fair
hearing, their significance would never have escaped his notice.
But because Mr Angel
was unfit to have heard that appeal it is Mr
Wallace who must be held to account and suffer Full Bench censure. For
this
reason alone, Justice Angel’s decision to reject our initial appeal
must be set
aside and Wallace’s conviction of all defendants overturned. HE decided
that he
was a fit and proper person to hear the case. HE ruled so many
important
questions irrelevant. HE diverted cross-examination and side-tracked
the
defendants. HE accepted testimony of witness after witness without
reproach. HE
presided with so-called fair and honest impartiality. And now it can be
revealed: HE only PRETENDED to know and understand what was said in his
court
room.
What has remained
unstated until now, is that in making these
dismissive remarks - and they were dismissive, every one of them - he
further
exacerbated the terrible travesty he alone had set into train by
deciding to go
ahead with the trial. This travesty should never have unfolded like it
did, and
Mr Wallace could and should have circumvented it for any number of
reasons.
Instead, what he did was watch the trial degenerate, if that was at all
possible, into something never before witnessed in the NT. With his
cavalier
dismissals; his arbitrary over-rulings; his veiled and not-so-veiled
threats to
the defendants; his pretence at comprehending the incomprehensible; and
his
various undeclared “gentlemen’s agreements” with the prosecution and
witnesses,
Mr Wallace plumbed the depths of sham trials.
Whether or not Mr
Wallace actually believed he was assisting
proceedings at this point on this shameful day, is not relevant, to use
an
oft-quoted dismissal by him of the defendants. But the effect of his
interventions was the same: they derailed questioning, throwing up a
perfect
distraction for the witnesses, and he convinced himself in the process
that he
alone had grasped everything that was said in his court room. Whatever
the
message, and however garbled it might have been, he at least had
deciphered it.
Or so he smugly thought.
In fact, he grasped
nothing, at least not on this particular day. Not
unless it is indeed possible to grasp circuitous nonsense. The source
of
nonsense can be seen and heard. But absurdity heaped upon absurdity is
for the
arena of clowns, not
This death’s
head of testimony involved Toyne and Syd
Stirling – co-incidentally, two of the most senior ministers in the
Martin
Labor Government. It covers almost 100 pages of transcript and reared
up like a
kraken at various intervals until the death.
It had its
genesis at the top of p.99, with Gary fencing
with Mr Wallace, whose ripostes come one after the other: “I am
disallowing the
question”, “it’s irrelevant and of no interest”, “no relevant interest”
and,
“not relevant and cannot be relevant and is of no use (to) proceedings”.
Three
sentences from the bottom of the page, Mr Wallace
says: So I am not
going to permit the question to be
asked and I’m asking Doctor Toyne not to answer it.
Then the
nightmare begins.
MR MEYERHOFF:
Okay, I will try a different angle. Were you
involved in writing the Drug House Legislation?---Well, it is my job it
is the
- I don't actually write legislation but I facilitate the
development of
legislation at its introduction and passage through Parliament. That is
my job.
GARY: So if
you didn't actually write it (an even more direct
question) who wrote
it?---Well, Parliamentary Council drafts the legislation and my
department, the
Department of Justice has a policy unit that works with the
Parliamentary
Council to get the details of the legislation replaced.
There we had
Mr Toyne
stating that he (doesn’t) actually write the legislation. When
Then we come in at the
bottom of p.125, with me cross-examining. The
preceding remark to what follows, was this from me to Toyne: Well I
didn’t
hear him . . . he didn’t say that he specifically wrote the Drug House
legislation, and Mr Wallace agrees with
me for once, saying firmly: No he says he didn’t write it
(the
Drug-House legislation).
He continues: He
does not write legislation the parliamentary
council/counsel writes legislation, that’s the evidence.
I use the word
“specifically” a few times, get a bit worked up and at
the top of p.126, move on to telephone taps. But before doing so, I
say, “He
creates the law” (almost like God). Now I don’t know whether I meant
that. I
confess, I was befuddled at that stage. But interestingly, neither Mr
Toyne NOR
MR WALLACE stopped and corrected me. So maybe I was right, even though
Mr
Toyne’s own comments to
However, flashing ahead
to pp170-71, with the next witness, former
Police Minister Syd Stirling, who is now under oath and being
questioned by me,
we have a new stage in the life-cycle of what I shall call this
entanglement-in-progress:
At the bottom of 170:
INDER-SMITH:
. . . we've had the alleged Attorney General here earlier and
now he said
he washed his hands of the whole thing, he didn't claim responsibility.
This
man (
And here comes not one
bombshell, but two: WALLACE: On the
contrary, the Attorney-General said it was his bit of
legislation (one bombshell).
Top p.171
INDER-SMITH: Well the committee this mysterious committee
. . .
WALLACE: No no, he said
it was his piece of legislation (two
bombshells) that was actually written by . . . parliamentary
counsel that
he put it through.
We have a few
conflicting ideas here. In the first instance, the “on
the contrary” instance, with
Let’s go back to when
Toyne was in the box. What was Mr Wallace certain
about then?
HIS WORSHIP: No, (Toyne)
says he didn’t write it.
So the scene thus far
then is: Mr Toyne definitely did not write the
bill. But according to Mr Wallace, it’s his piece of legislation. He’s
certain
of this. The parliamentary council/counsel wrote the legislation, at
least the
parliamentary counsel/council drafted it. The police were “talked to”
and the
Department of Justice’s policy unit got the details replaced. Mr Toyne
then(?)
put it through the parliamentary council/counsel and presumably, it
then became
law(?)
Taken
separately, Mr
Wallace’s remarks – so brief, yet resonant with authority and reason -
are now
being seen as not entirely kosher, and the source of the drug house
legislation, certainly not as straight-forward as Mr Wallace would have
us all
believe. A pattern is emerging; the entanglement growing.
If Mr Wallace was
confused, he didn’t show it. Seemingly, he had
comprehended the superficial tripe. It was us, the unrepresented
simpletons –
and specifically me -- who had not. In hindsight, he must have taken me
for a
fool. But just to prove that he was satisfied with proceedings and that
nothing
untoward was happening, he decided to wrap up the sorry mess by asking
the man
sitting restlessly in the hot seat staring at the ceiling – Syd.
Six sentences down on
p.171, he fired off the question we had all been
asking in different ways, and were still no closer to clearing up.
HIS WORSHIP: Which
minister was responsible for the
drug house bill?
You couldn’t get much
clearer than that, and straight from the
magistrate no less.
The answer?
MR
That response wasn’t
exactly to the script. But it WAS part of the
beautiful ballet of babble that washed through our hearing. Even then,
though,
the question had been prompted by my own
direct one to
Mr Stirling’s
“definitive” answer in no way echoed or endorsed what Mr
Wallace had been at great pains to try to explain so glibly. Just the
opposite,
it contradicted all his assertions that it WASN’T Mr Toyne’s “bit” or
“piece”
of legislation . . . or was it?. By deciding to ask the question of Mr
Stirling
himself, Mr Wallace was simply being SEEN once more, to conduct a fair
and just
trial. That Mr Wallace didn’t demand a direct answer from either Toyne
or
Twenty-four hours
later, on March
6, that fertile ground I mentioned sprouts a twist – one ripe with
still
more questions about this entanglement which is about to transmogrify
into an
unadulterated monster. Mr Wallace has decided that it WAS Mr Toyne’s
legislation, afterall. Nothing can dissuade him otherwise. Syd’s words
have
obviously found a place in his subconscious over night, and Mr Wallace
has
woken up and run with them right into court.
Should the Drug House
bill be raised again, he knows just what to say,
with even more conviction, only this time, he has another fall guy to
replace
the (mysterious) parliamentary council/counsel - the “policy section”.
On p.301
of the transcript, with Denis Burke in the box, Mr Wallace repeats for
the
THIRD time:
It’s (Toyne’s) piece of
legislation . . . That it was drawn up by the Parliamentary Counsel on instructions from policy section of the
Attorney-General's Department and presented to the Parliament by him,
the
Attorney-General, because it's his Act.
Just in case I still
hadn’t got it – for it was I the cross-examiner -
Mr Wallace added with only the slightest acerbity:
What more do you want from
there?
The day before, Wallace
had been certain of two things – Toyne wrote
the bill; and Toyne didn’t write the bill. That was his story and he
stuck to
it, and when announcing both certainties, he was sure to name the
parliamentary
council/counsel as an afterthought. Every time it came, he had his
answer off
pat. This time, however, he presented an even bigger picture, one with
a tiered
hierarchy – one involving the policy “section”, which presumably was
the policy
UNIT Mr Toyne had originally mentioned to
I said, But the
Attorney-General didn't concede yesterday that he
was actually the master mind or the - he didn't say - he didn't . . .
And Mr Wallace, ever
helpful, calmly reminded me that:
He said he was responsible
for it.
The twist kicks in.
Yesterday’s entanglements have miraculously been
unentangled, not that Mr Wallace would ever admit to being in a tangle.
The
state slate has been scrubbed clean and is now graced by new key words
writ
large: policy section; instructions; Attorney-General’s Department; his
Act . .
.
Today it is official.
It IS Mr Toyne’s “piece” of legislation, and the
old fall guy, the stuffy parliamentary council/counsel, has been
replaced by
the new fall guy, the policy section (rechristened by Mr Wallace).
Things are not always
as they seem, however, and on closer scrutiny, Mr
Wallace’s words fit into this category. I shall take them word-by-word,
phrase-by-phrase.
First we can forgive Mr
Wallace’s mishearing not once, but twice, the
Attorney-General while he was answering Gary Meyerhoff the day before.
This
resulted in Mr Wallace 1) renaming the policy unit the policy SECTION,
and 2)
switching Mr Toyne’s phrase“drafts the legislation” with his own “drawn
up by”.
To “draw up” is different to “draft”. It is a subtle difference, but it
is
there. Something drawn up would tend to be more permanent than a draft.
Anyway,
both were probably an honest mistake . . . happens all the time in
court hearings.
Then we get down to the
nitty gritty, beginning with Mr Wallace’s
opening salvo which contained the phrase, “on instructions from the
policy
(unit)”. How did Mr Wallace reach that conclusion? It certainly didn’t
come out
in evidence. Mr Toyne himself told
“. . . the Department of
Justice has a policy unit that works with the Parliamentary
Council to
get the details of the legislation replaced.”
How does “works with” -
as in Parliamentary Counsel in conjunction with
(the) policy section – translate to (the former being) “on instructions
from”
(the latter), as he claimed it did? “Works with” does not imply that
one party
is subordinate and that it receives/takes “instructions” from another
party/parties. Works with says only that – that party/department A
works with
party/department B.
How therefore, did Mr
Wallace come to deduce from this, that
Parliamentary Counsel works under instruction from (the) policy
section?
This, too, could be the result of an honest mistake. Nonetheless, it is
there
and it is not an insignificant digression.
I shall call this
questionable assertion #1(QA1)
Next is the adjectival
collocation in the same pronouncement, that
assigns the renamed policy section to the Attorney-General’s
department.
This is very interesting given that Mr Toyne had said that the policy
unit was
part of theDepartment of Justice, not the Attorney General’s
department.
That’s a big department to mishear.
I shall call this QA2.
Third, we have the
penultimate declaration by Wallace, “ it’s his Act”.
This is still a questionable assertion, QA3,
because Mr Toyne NEVER EVER said
that it actually WAS his act. Mr Wallace did, several times, and he was
mindful
each time to quickly add the rejoinder “that was written by
parliamentary council/counsel”, as if
having a bob each way to cover any
doubts that he himself might have been harbouring deep down. So, was it
really
HIS Act? If he didn’t write it, how can it be his act?
There is absolutely no
doubt about QA4.
This extends from QA3 because it was uttered by Mr Wallace almost in
the same
breath. QA4 in fact is a bald-faced
lie. It is this: He said he was responsible for it.
No he didn’t. Mr Toyne never
said that in Mr Wallace’s court, not during business hours. Perhaps Mr
Wallace
was getting confused with what he himself had attributed to Mr Toyne,
and what
he had said to Mr Stirling: “Which minister is responsible for the Drug
House
legislation?”
Perhaps Mr Wallace was
so pleased to hear a clear answer from Mr
Stirling for once, that he sub-consciously agreed, and silently
ordained Mr
Toyne as BEING responsible. Regardless, QA4 is inexcusable, outrageous
and an
affront to the defendants//appellants, not to mention a black day for
NT
criminal justice. Only Mr Wallace knows how it came into being.
The entire hearing
hinged on this thread of fabrication and lie for the
obvious reason that the defendants were at his mercy for two entire
weeks. This
is not simply a trifling about Mr Wallace speaking “figuratively” or
taking
license with his words. He is a well educated, highly paid magistrate -
a
servant of the state, employed to administer justice. He should not
need
recourse to “speak figuratively” or use words loosely. Above all, he
should be
honest during the trials he conducts. And this he was not during ours.
It was the same with
his out-and-out exaggerations. Compared to what
the witness himself had told us, his description at page
35 on May 21 of how Commander
Bert Hofer had removed Gary
from the Speaker’s chair was injudicious, to put it mildly. In any
man’s
language, it is a preposterous embellishment of the witness’s own
words.
Combined with comments he made during Jane Aagaard’s and Clare Martin’s
testimonies, it could be said that that Mr Wallace’s approach, for want
of a
better description, was “unconventional”.
One possible
explanation for the above inconsistencies is that they were all the
result of
supposition on Mr Wallace’s part. He SUPPOSED that what he was
asserting was
true. In the same vein, he might have been INFERRING that “what Mr
Toyne said
was this’’ etc. In both scenarios, supposition or inference, all he
then needed
to do, once hearing all the conflicting testimony, was use his
magistrate’s
verbiage to nourish and feed his supposition/inference, and give it
voice repeatedly
in order to sound like he had comprehended the incomprehensible. This
might
have been entirely unintended – or it might have been deliberate. It
might also
have been the case where he realised his mouth had gotten him once into
trouble
already, loosing the ghost from the closet, and that his addenda during
talk of
the Drug House legislation, was him being seen NOT to make another faux
pas. In
other words, he didn’t want to stuff it up again.
In the same vein –
along the lines of untruthful remarks - Mr Wallace
could have been fabricating evidence. In legal parlance this is called
“self-serving evidence” only it was to the benefit of the politicians.
A less
sinister, more human, theory for why he fabricated that evidence, was
because
he was confronted with his own failings as a magistrate – perhaps he,
too, had
had trouble making head or tail of the testimony. Perhaps his pride
then kicked
in and he decided to “make it up as he went along”, which was very much
how it
seemed to pan out. In that respect, he simply took his cue from the
witnesses.
There was no doubt he
was hell-bent on having everybody believe that
the persona non grata Drug House legislation was Mr Toyne’s – right up
to his
closing statements. Right up to May 21 he
was still standing his ground, pressing home the advantage that he had
contrived for himself and the witnesses, in the most unscrupulous,
dishonest
and cowardly manner.
On p.35,
during his summing
up, Mr Wallace says:
The evidence consistently
was that (the drug house legislation) was the Department of Justice,
Attorney-General’s bill, not a police bill.
How dare he lie like
that. That was the second shocker he told on the
subject. How can he get away with that? Consistent?! That is an
outrageous statement. The chance of it being a police bill wasn’t even
RAISED
in evidence, so why should he mention the police? And wasn’t it
interesting how
ownership was now with the Department of Justice as well as the
Attorney-General? That in itself is ridiculous, an inconclusive furphy.
One is
a department, the other an individual. Which is it Mr Wallace?
Amid all the disgusting
mayhem one common denominator stands out like
the proverbials and it is me, RobInder-Smith. That’s because Wallace
didn’t
like me. He hated me from the first time I asked, nay demanded, that he
stand
himself down from hearing the trial. It was a request I made several
times. He
couldn’t contain his festering antipathy for me, which exploded at
several
points during the trial. And that’s the result – lies and fabrication
and smug
assertions that HE had a handle on the testimony. Each time I tried to
get a
name from Toyne,
The pathetic charade
demonstrates graphically the whole incestuous
nature of the trial. Wallace’s manipulations seemed innocuous at the
time.
Indeed, they were so innocuous that they never rang alarm bells with
Justice
Angel. I doubt that Your Honours have had your alarm bells set off by
them. Yet
they came from the man who was to sum me up as “unwilling to be
explicit in . .
. answers, professing failure of recall (and) deliberately
misunderstanding the
drift of the questions” (May 22, p39).
Certainly it was me –
us the defendants - and not the witnesses who
were on trial. But Mr Wallace’s failure to mention THEIR evasiveness
speaks
volumes and cannot go overstated. Once again, one could speculate that
this
failure was deliberate.
Mr Wallace covered
himself, in that he was SEEN to be conducting a fair
and open trial. He gave us our head – me included – in what was often clumsy cross-examination and irrelevant
questioning. But what he gave on one hand, he took away with the other
by
constantly overriding and generally subduing otherwise determined
attempts to
get to the truth of relevant matters. In the bitter end, it all
came
down to the mysterious committee – the same one I was referring to all
along.
The whole insidious
display dragged the case to hitherto un-plumbed
depths, reeking of back-scratching, bastardry, cowardice and duplicity
as it
went.
What was that about
separation of powers?
_____________________
Back to me trying to
break through the Toyne barrier. Half-way down
p.127 I ask after a faltering start: . . . is it not strange that
someone .
. . like yourself who has made a comment on a present drug case has not
been
charged with contempt of court?
Mr Toyne, emboldened
and cocky because of the hammering I’ve been given
by Wallace, responds arrogantly: I think we had dealt with that
earlier.
In fact we hadn’t.
A couple of sentences
down, Mr Wallace puts me in place for daring to
prompt Mr Toyne.
HIS WORSHIP:
Mr Inder-Smith if you ask a question and the
witness begins to answer it you have got to keep your mouth shut until
the
answer is complete.
Nice way to
put it. The
point is, the issue of contempt was
another one of vital importance that was not explored as
comprehensively as it
should have been. This was due to two key factors – our ineptitude at
cross-examination, and especially, obstacles thrown up and stonewalling
by the
prosecution and magistrate. Stuart had to contend with these near the
bottom of
p130, where he asked Toyne:
Are you aware of the experiment of
alcohol prohibition in the
HIS WORSHIP:
Mr Highway, once again I can't see where you
are going with that except to debate policy matters with the witness
and it
doesn't seem to me that that is going to go anywhere.
It was a relevant
question and a lot could have been made from the
answer, had Wallace not overruled it.
Top of 131, Wallace errs
by saying: I know that
But he DID need to take
it up with Toyne, that's why he asked him.
Near the bottom of
p.141, Wallace: ''Government policy . . . just
is not an issue''. Of course
it was the issue. That’s why we did what we did – because of the policy
of the
government to introduce the Drug House legislation.
Near the top of P.145,
We said Rebecca Morse “couldn't afford” the
video link-up. An EL would have organised for a teleconference with
her. NT
courts have had teleconferences for other NAP cases. The prosecution
never
suggested it, but Wallace should have. Why didn’t he? Could it have
been that
Ms Morse might have given damning evidence on behalf of the NAP?
Now to the dreaded Drug
House petition – another shameful episode that
yielded nothing.
The relevant quote from
Mr Stirling early into his cross-examination by
Gary Meyerhoff, comes half-way down p.148: . . . there was a
petition that
was shoved in front of my face on a particular May Day and I
recall that
being associated with the same organisation.
Once again,
Mr Wallace protects/shields the witness. Halfway
down p.150,
So you didn't
have the full time to read it and yet you
scribbled on it?
MR THOMAS:
Your Worship, that's not what the witness said.
MR MEYERHOFF:
He said he didn't have the full time to read
it, sir.
HIS WORSHIP:
He wasn't given an opportunity to read it, he
was exhorted to sign it.
MR MEYERHOFF:
He said - - -
HIS WORSHIP:
That's what he said.
MR MEYERHOFF:
But he said he vehemently disagreed with what
the petition said. So he must have read it, sir. How could he
vehemently
disagree with it if he didn't read it, it could have been a petition
about the
railway line or about traffic in the mall. He said that he vehemently
disagreed
with it, so he must have read it.
HIS WORSHIP: That
doesn’t follow at all.
MR MEYERHOFF:
It does in my opinion.
This was appallingly
unfair, to derail that line of questioning. It was almost an act of
bastardry
on Mr Wallace’s part, to quash
As to Wallace’s “That
doesn’t follow”, that was part of his technique throughout the trial –
to twist
meanings and words to either nullify questioning or steer it away from
where it
was leading to. Of course it followed.
Did you or did you not
vehemently disagree with the petition?---
A bit down on
p.151: MEYERHOFF:
A
vague recollection. Are you vehemently - do you vehemently disagree
with the
concept of providing a full range of treatments to dependent users?
HIS WORSHIP:
Mr Meyerhoff - - -
MR THOMAS: Mr
Stirling may have an opinion?
HIS WORSHIP:
Yes
MR THOMAS:
It's not relevant.
HIS WORSHIP:
For the reasons I was giving before lunch Mr
Meyerhoff, which you may not accept, but must abide by, I'm just not
going to
allow you to ask questions of directed at establishing what the
government
position is and the merits of that position, still less am I going to
allow you
to ask the questions and directed at Mr Stirling's private opinions in
relation
to such matters. They’re neither here nor there.
Mr Wallace thwarted the
question because it became too prickly for the witness. He prevented
In the middle
of p.168, Me to
HIS WORSHIP:
Mr Inder-Smith - - -
It doesn’t
matter how I
framed the question, I should have been allowed to ask it. Mr Stirling
was
lying. I should know, because I was there. I should have gotten
him to
explain the seating arrangements because they were important to what he
alleged
- that the petition was “shoved in his face”. Wallace should have
allowed the
question and an EL would not have yielded the way I did.
Mr Wallace
waffles again
and completely railroads me: HIS
WORSHIP: Mr Inder-Smith you are one of the
people involved here, you're one of five people involved here and the
five of
you are charged with an offence . . .
Middle p.170,
more stonewalling and protecting the witness:
Me to Mr Stirling: What input
did you have into the drug house
legislation?
HIS WORSHIP:
Mr Inder-Smith
MR
INDER-SMITH: That's on record, he said he had input an, I
just want to - - -
HIS WORSHIP:
Yes.
MR
INDER-SMITH: What input, he said he had an input.
HIS WORSHIP:
I know he did, Mr Inder-Smith, I was listening.
But I wonder of the relevance of that answer to the question, I wonder
of the relevance
of your question. Doesn’t seem to me to matter Mr
Inder-Smith unless
you can make it relevant in some other way through some other question,
I just
can’t see it.
We don’t need to canvas
that terrible fiasco any more.
Between pp179-183.
discussion turns to ''democracy'' surveys that show that . . . most
people
think that (pot) should be legalised. Near the bottom of p.179, Ema
asks a
direct question of
. . . Do you think that it
is particularly democratic that their (pro-pot-smokers') views have
been
ignored?
WALLACE: Before you answer
that Mr Stirling . . . Ms Coro, unless that is an accepted fact, Mr
Stirling
cannot answer that question.
THOMAS: Objection. There is
no answer to that question that assists Your Worship.
On p.180, Thomas again
objects
BIRKELAND-CORRO: Would you
change your opinion on legalisation of marijuana if that . . . is what
opinion
polls said?
Top of p.183 sums it up:
WALLACE: . . . I am just not interested.
That declaration came at
the end of a burst of legalese from Wallace on
The upshot was that
Wallace grew irritable – “I’m just not interested” - and Ema was forced
to move
on to the more innocuous and far less confronting:
What is your . . . role . .
. as police minister?
On p.194,
THOMAS: . . . that's not
raised in cross-examination
WALLACE: I didn't think that
was raised from any question that was asked by anybody in
cross-examination.
MEYERHOFF: Well, they were.
Ema was trying to raise that issue.
WALLACE: Invalid . . . I
don't find – I couldn't find any answer helpful. (We didn't GET any
answers!).
At top of 195:
Wallace cuts him off
saying it’s not important. Gary says it is important, but once again,
he
withdraws the question, possibly because he felt intimidated, but most
likely
because he knew he was raising the magistrate’s ire. And that is not
justice
nor is it justice even being seen to be done.
March 6
More of the same.
In the middle of
p.208, Stui is refused while questioning
Vatskalis, do you believe the natural human urge to
self-intoxication . . .
can be legislated out of . . . existence?
The opinion he was
seeking and those being sought by all defendants were not those of the
average
Joe Blow. They were the opinions of the people responsible for managing
and
administering the Territory, passing legislation and promulgating its
laws.
Wallace should have allowed us to canvas their opinions. Wallace's
summations
were inadequate reasons for refusing us this right. Could it be that
the reason
he would not let us ask their opinions about illicit drugs was because
the
answers they may have given might have laughed in the face of
Government
legislation, in effect, heaping scorn upon ridicule and serving to
further
embarrass them and the government?
At the bottom of
p.212, Inder-Smith to Vatskalis, after saying,
“is deceit not relevant . . . to this court?”: Why wasn't the
public
consulted before development started at Wickham point?
WALLACE: Don't answer that .
. . (and again at top of 214). Wallace threatens to discontinue my
cross-examination.
Provocation again raised
in the middle of 214. INDER-SMITH: I'm fed up with being lied to by
politicians.
Wallace to Gary, top of
p.213: . . . we're not here to discuss a critique of effective
protest.
Middle of 213, Wallace
cuts me off with: . . . unless you can point me in some direction
that
makes it relevant.
I repeat, it came back
to deceit. And I ask once more: was that not
relevant in Mr Wallace’s courtroom during this trial?
All of pages 213 and 214
demonstrate Wallace's steadfast refusal to allow us to explore the
avenue we
were on – and an EL would have pursued the matter and possibly struck
at the
heart of it, chastising the magistrate in the process.
On p.228,
THOMAS . . . this has got
nothing to do with 14 May.
WALLACE: No
THOMAS: It's satisfying Mr
Meyerhoff’s curiosity.
WALLACE: No I . . .
MEYERHOFF: It's not
curiosity at all. I've been arguing about the human rights of drug
users, the
access – the lack of access to treatment services, accessible and
appropriate
treatment services, in the
WALLACE: Mr Meyerhoff . . .
MEYERHOFF: It's one of the major
motivations . . .
Top of p.230,
WALLACE: Possibly so . . .
Then comes Wallace's
mission statement: You're not setting the scene, you've jumped to
the end
of the story and we're not interested in the end of the story which
has
an opinion in the middle of it.
What did that all mean?
At the bottom of 234,
Gary to Aagaard: So as Health Minister . . . is it your opinion .
. . that
zero tolerance policies and legislation like the drug house legislation
and
police campaigns have no impact on the health and wellbeing of illicit
drug
users?
WALLACE: Ms
Aagaard, I don't think you need answer that
question.
Therein is
the ruling:
no hard questions and don’t bother trying for any answers of substance.
MEYERHOFF: Well . . . from
the evidence so far, we see the Government sets up a ministerial task
force on
illicit drugs in Nov. 2001, which released its report in August 2002.
No action
is taken in that period to improve the health and wellbeing of illicit
drug
users. In fact nothing is done until Sep. 2002. However, two months
before the
task force releases its report, the drug house legislation is rushed
through
Parliament. Now that's one of the reasons that I went into the
Parliament.
Two sentences down:
. . . what's that got to do with the chain of
reasoning we just talked about? . . . nothing.
MEYERHOFF: I would argue
that legislation and zero tolerance policies have a major impact on the
health
and well-being of illicit drug users.
WALLACE: yes, you've argued
that . . .
MEYERHOFF: and here's the
Health Minister . . . (saying) it's got nothing to do with (her).
WALLACE: Well she hasn't
MEYERHOFF: . . . I'm
interested to know why that is sir – not just for my own . . . but . .
. for
the court's benefit so that we can understand this issue.
WALLACE: . . . as far as my
job is concerned . . . I have no interest at all in that matter
and
that's why I'm saying it's irrelevant.
Then Thomas objects about
anything discussed in Cabinet if it ''encroaches on the subject''.
PP259-top of 261,
Inder-Smith v Aagaard. I get to the
crux by saying: you're refusing me (the right) to ask questions
that she
can be specific with, but yet you allowed her to answer questions in an
ambiguous way.
Where . . . do you draw the
line at where an exaggeration ends and a lie begins and if
you're going
to tolerate both, then I plead what I pleaded the first day, that we're
going
to (get a) mistrial and, you know, exaggeration becomes lie. And we've
had
three witnesses exaggerate at least and that's giving them the benefit
of the
doubt.
Bias returns in the
middle p.264. It is an extraordinarily sympathetic remark from one who
deems
himself capable of being impartial. It comes after Aagaard finishes
telling
HIS WORSHIP .
. . it's often . . . amazing but the hard
thing to believe is that people are working really hard during that six
to
eight weeks to answer a letter!
Quite so! Is that
naivety or is Mr Wallace having a lend of us?
AAGAARD: I don't think
that's exactly what I said . . .
In fact it IS exactly
what she said, a few pars up (p.264): I think illegal drug use is
a symptom
of society where things have broken down considerably . .
Misleading witness
comments such as this were never addressed by Wallace.
That triggers a
Toyne-sque and Stirling-like performance whereby Aagaard disgorges a
litany of
duckspeak about how slow the Government was to act, until eventually,
halfway
down the next page (265), Wallace spares us all the agony by again
preventing
the hard question from Gary, which was: . . . why did it take so
long for
the health department to take action after you were elected (in 2001)?
WALLACE: Mr Meyerhoff – it
took as long as it took and that's an historical fact. The reasons
behind it don't
seem to have any bearing on this case.
Mr MEYERHOFF: . . .
basically this whole issue was given a lack of priority by the
Government.
WALLACE: Well, that's quite
possibly the case, but what's happened has happened. The
reasons for it
don't seem to me to have any bearing on this case. So I disallow
the
question.
That’s Mr Wallace
saying I don’t care and let’s get on with it, and
Gary mentions Toyne, then
refers Aagaard to the transcript of Toyne's interview with Fred McCue.
Wallace
says it wasn't evidence, but agrees with
THOMAS: Well, your Worship,
what does this witness . . .
This was the Health
Minister for God's sake – An EL would have exploited the chance.
Wallace should
have allowed, nay encouraged the question.
Getting into P.269,
I simply can't see the
relevance.
At the top of p.270,
I was just unaware that
there were violent protests to which Mr
Wallace says something about how many
things Mr Burke knows. Then comes this laughable remark:
. . . but you're just not
going to waste our time exploring those matters of curiosity.
I'll keep going on
another angle.
P.273:
HIS WORSHIP: Mr Meyerhoff -
there's no need to answer that Mr Burke it's not a matter where your
answer's
relevant to anything.
MR MEYERHOFF: I withdraw
the question.
By now, we were worried
about upsetting Wallace. It’s one of the reasons
He raises the issue of
“cumulative”
provocation again toward the bottom of p.284, saying:
MR MEYERHOFF: If I was to
argue, sir, that it isn't just the Labor Government that provokes this
incident
but that you know . . . that there has been years if incidents that
together
amount to provocation.
Then comes an example
of how Mr Wallace was not as au fait with some of
the questions as he considered himself to be. Three paragraphs down on
page
285, he chides
HIS WORSHIP: That's not the
point. Your question was - you were starting to ask Mr Burke about his
knowledge of the Network Against Prohibition. That network, as I
understand it,
didn't exist when he was in Government. So if you're going to talk
about the
CLP's rule - - -
In fact
Okay, I'll remove it for
the moment.
On the same page, the
subject of land ownership comes up. Mr Thomas
objects, Gary refers to June Mills’s evidence from two days ago, then
Mr
Wallace interrupts:
HIS WORSHIP: Mr Meyerhoff,
it may be relevant that you believe that Larrakia people were owners of
the
land. It may be relevant whether or not they are the owners of the
land.
But I can't see whether Mr Burke believes that they are, accepts that
they are,
is relevant at all unless he's got some special knowledge.
In fact, it was a simple
yes or no answer. Instead,
Okay well, I'll withdraw
that.
Bottom p289, on
breaking law to get attention –
HIS WORSHIP: Mr Meyerhoff.
MR THOMAS: Your Worship - -
-
MR MEYERHOFF: I'll
withdraw the question sir
This at the
top of
p.290:
Not that you recall, okay. We've talked about lewd and unseemly
language, have
you yourself ever used lewd or unseemly language in the Chamber?---In
the
Chamber?
Yes?---I
would say no but - yeah, I would say no.
MR THOMAS:
Your Worship, what relevance is that?
HIS WORSHIP:
Yes, what relevance is that got to anything Mr
Meyerhoff?
MR MEYERHOFF:
Well, it's just relevance to lewdness and
again to this disruption of the Parliament and just trying to paint a
picture
that politicians are constantly disrupting each other and disturbing
each
other. We've seen a pattern of that and here we have a clear example of
a lewd
statement.
HIS WORSHIP:
No thanks Mr Meyerhoff.
MR MEYERHOFF:
Okay. Then no further questions for Mr Burke.
It was a good
point
though. And it shows the two standards at work when it comes to
“disturbing the
legislative assembly”.
At the bottom of 296 I
talk hypothetically to Mr Burke about trying to talk with an enemy, and
using
the white flag for the purpose. Then we turn to p.297
and I say:
Okay. Well, that's a -
probably a comment in itself isn't it - what do you do - put it this
way - what
do you if the enemy refuses to talk to you?
There is a brief
interjection from Mr Thomas then I say it’s all about
dialogue. Then Mr Wallace throws the weight of his verbiage behind the
bid to
steer me away from my analogy. He finishes his spiel by mistakenly
saying that:
. . . whatever you were doing
it wasn't soldering on the day so - - -
But that’s where he’s
wrong, because we ARE/WERE soldiering –
we're drug warriors fighting the war on drugs.
MR INDER-SMITH: I'd still
like to know what recourse he would take - resort to - what would he do
- what
would you do if someone refused to listen?
HIS WORSHIP: I'm sorry Mr
Inder-Smith, I'm not going to allow you to ask Mr Burke that.
Middle of p.298, still
with Burke:
Was the drug
house legislation thought through in your
opinion?
MR THOMAS:
Objection Your Worship, no doubt Mr Burke has an
opinion but - - -
HIS WORSHIP:
Yes, who cares.
MR THOMAS: -
- - it doesn't assist.
HIS WORSHIP:
Sorry Mr Burke, I don't mean that nobody cares,
I mean that I don't care.
He’s the
opposition
leader! Surely he is allowed to express his opinion on this most vital
of
topics.
Immediately after that, I get onto
contempt:
MR INDER-SMITH: You've been
charged with contempt haven't you Mr Burke - can you tell us briefly
about -
just quickly what the nature of that was?
HIS WORSHIP: Again Mr
Inder-Smith, what's the relevance of that?
With another obstacle
thrown in my path I soldier on for a few
paragraphs before spluttering to a halt with a simple:
Okay.
I regret doing so,
because it was a crucial issue that should have been
exploited.
I'm cut off again from
p.299
Me to Burke: I wonder if we could refer to exhibit
11 now
please Your Worship? (NT News article,
Do you recognise that
article Mr Burke?---Yep.
Is that a true and honest
recollection of your quotes of what you said to the NT
News reporter?---It's a - the quotes are accurate - the quotes
are accurate.
And what's - I'm sorry I
forget what the heading was - can you just tell what the heading
is?---'Burke
Fuels Dope Fire'.
Okay. And what do you do in
the article just briefly Mr Burke - can you tell us - tell the court
what you
do?---Well, what I was doing or how they reported it?
In the - no tell us what you
were saying to society?---What I was saying was that I was making a
comment on
the emphasis that an under resourced police force is putting on
recreational
use of marihuana in comparison to other crimes that are occurring in
the
Are the police wasting their
time on marihuana offences and marihuana users?---I think that any form
of
trafficking is wrong and it should be hit hard. But in the Criminal
Code of the
Northern Territory, recreational use of marihuana is seen for the
danger that
it causes and that is that it's an on-the-spot fine. It's the
acknowledgement
that it exists. It's not condoning it. It simply says that that is the
degree
of crime that it's the seriousness that is seen in the Criminal Code.
Okay. I guess what I'm
asking is marihuana been demonized?
MR THOMAS: Your Worship, how
does this witnesses view on that assist?
HIS WORSHIP: Yes, Mr
Inder-Smith I think all of this in relation to that exhibit is not
terribly
relevant - - -
MR INDER-SMITH: He's on - -
-
HIS WORSHIP: - - - to
proceedings but that last question is just getting beyond - - -
MR INDER-SMITH: Well, he's
gone on the record, Your Worship, as making a comment on marihuana and
I just
want him to explain if he thinks that it is been demonised and if drug
users
and dealers are being persecuted - can I ask him if - - -
HIS WORSHIP: Once again I
can't see that the answer yes or the answer no is going to assist me -
no
answer is going to help me in this case so it's not a relevant
question.
On p.301, Inder-Smith
to Burke: Can I ask about another curiosity -
the life cycle - the life cycle of a piece of legislation in the NT
Parliament
please - from its conception to when it's been promulgated?
HIS WORSHIP: Why Mr
Inder-Smith?
MR INDER-SMITH: Again, Your
Worship, it comes back to the drug house legislation which is at the
core of
the one of the reasons we did what we allegedly did. I was just
wondering if Mr
Burke can shed light on who might have participated in it because we
haven't
had much success from people who've been there this afternoon or
yesterday.
Here it comes again.
HIS WORSHIP: We had Dr Toyne
saying that it's his piece of legislation.
No Mr Wallace, he DID
NOT say it was “his piece of legislation” etc
etc.
INDER-SMITH: Okay.
After Mr Wallace re-iterates
his questionable assertion, I give up by saying:
I’ll move on.
We come to another head,
this time with Mr Wallace’s dislike of me boiling to the surface in a
big way.
At the top of p.267,
Wallace is asked by
HIS WORSHIP: Having
seen what I have seen . . . I doubt
whether Mr Inder-Smith is capable of coherently leading any witness
through any
evidence.
MR INDER-SMITH: What do you
mean by that Your Worship.
HIS WORSHIP: Would it help
if you're allowed to sit Mr Meyerhoff, as indeed you are welcome to?
MR INDER-SMITH: Can I ask
what you mean by that Your Worship?
HIS WORSHIP: Mr Inder-Smith,
I've heard you now cross-examining, I don't know, at least a dozen
witnesses in
this matter and very rarely has one or two of your questions been to
the point.
I can't remember an occasion when three questions in a row have
been to
the point and asking a witness with their evidence in chief, is a
matter really
of asking what's you story, what happened next, what happened next,
what happened
next - it requires restraint and - - -
MR INDER-SMITH: So
irrelevant questions - - -
HIS WORSHIP: - - - listening
to the answers. If
MR MEYERHOFF: Is that okay
for
An EL would have handled
that better. For instance, the obvious come-back from me would have
been to
remind Wallace that he was cutting me off so often – and not just me,
my
co-defendants as well - each time I asked a hard question. And of
course, I
knew well and truly by now that he had it in for me, and was determined
to make
me look bad. This he did by interrupting me so often with unfair
rulings, and
things like,”No, he didn’t say this” or “she didn’t say that”, when
often it
was HE who was wrong. He was actually taking revenge on me.
Surprisingly, he was
quite happy to allow a change in the ''batting order'' to use his own
term an
hour later, on p.292, when Burke is in the box and Ema is due up. She
tells him
it is (me), Highway and then her. Wallace has no objection to that
switch.
But he cuts me off
repeatedly at the top of 293:
HIS WORSHIP: Mr Inder-Smith
- - -
MR MEYERHOFF: - - - that you
have then found offensive well - I'm afraid that's not my problem Your
Worship.
HIS WORSHIP: I was speaking
about offensiveness, I was speaking about competence - - -
MR INDER-SMITH: Well, I'm -
- -
HIS WORSHIP: - - - would you
be kind enough to ask Mr Burke any questions you have for him.
MR INDER-SMITH: Well, I'm
going to ask you a question first Your Worship. First of all why did
you say
what you said to me when Mr Meyerhoff was requesting the equivalent to
a stress
leave - why did you then say to me: 'No, Mr Inder-Smith may not step
up', why
did you say that?
HIS WORSHIP: I didn't say it
to you, I said it to Mr Meyerhoff and the reason I said it was because
I'm
concerned Mr Inder-Smith that you have not displayed a capacity to
coherently question any witness, certainly this year in these
proceedings -
I can't remember what happened last year and in particular in relation
to your
questioning. And it doesn't seem to me on what you have done in this
week and a
couple of weeks ago that your capacity to get coherent evidence in
chief from a
witness is demonstrated. And I was not therefore prepared to have you
substitute yourself for Mr Meyerhoff as I said to Mr Meyerhoff, when he
requested that that substitution remain.
MR INDER-SMITH: My - - -
HIS WORSHIP: Now would you
would you please - - -
MR INDER-SMITH: My questions
have been incoherent?
HIS WORSHIP: Yes.
MR INDER-SMITH: Well, some
of the witnesses seem to have been dumb struck - I'm going to ask you
to stand
yourself down because of your personal vice against me. Will you stand
yourself
down?
HIS WORSHIP: No I won't Mr
Inder-Smith. Could you please ask any questions you have for Mr Burke.
MR INDER-SMITH: Okay.
(See “For The Record”,
p68)
Witnesses otherwise known as elected
representatives tried outdoing each other in the piffle stakes. This
from
p.349, with Sue Carter in the dock and me cross-examining:
ROBINDER-SMITH: Okay, but you said that person was jumping, you
specifically
used - - -?
SUE CARTER: They were light in step.
RIS: Light in step?
SC: Mm.
RIS: So that’s not a jump, is it a jump or is it not?
SC: Perhaps not a strict definition of jump, but they appeared to me
- and
we are going back many months in recollection, but as opposed to
stomping
around on the table they were light in step.
RIS: Light in step. Well, there’s a big difference you understand
between
jumping and being light in step. So were they jumping or were they not
- we’ve
used the term jump?
SC: All right, well, I’ll
withdraw the word jump and rephrase it as being light in step.
On pp360-362 of Wallace’s
argument about why we couldn't summons Police Commissioner White and
officer
Les Martin might have been correct and true. But not being ELs, we
couldn’t
challenge it and I would ask the Full Bench to read the particular
pages to
determine whether or not his comments were challengable or
unchallengable. The
dialogue is resurrected at the bottom of page 7 of
Having consulted DPP
chief solicitor(?) Greg McDonald, Wallace wraps up
his rejection of our desire to summons Police Commissioner Paul White
with this
comment:
HIS WORSHIP: The facts are
the facts, somebody in the police force has made each of these
decisions to put
men and women on to confront demonstrators, to lay charges, whether
it’s been
happening at the level of senior sergeant like Mr Thomas or
whether
it’s been happening at the level of the Commissioner or Assistant
Commissioner
or Commander, Superintendent – who knows? But who cares, what’s
happened has
happened.
That is a blasé dismissal
of what amounts to provocation and one of our main arguments which has
included
a cheerio for his mate Mr Thomas. His last remark shows the contempt in
which
he holds our case.
P.9: Wallace:
Whether that’s a fair impression who knows, this is
not the place to find out, but even if it were, so what? I mean
the
evidence creates that impression and there it is, and who needs Mr
White to
comment on it?
Wallace's summation on
pages 10, 11, 12 might be true and accurate. But this is at the bottom
of p.11:
HIS
WORSHIP: Well, they might, Mr
Meyerhoff, but it’s
really your summons and I don’t know there’s much more to be said
on the law.
By refusing
Page 19, Wallace on a
Meyerhoff question: Sergeant, really Mr Meyerhoff’s question that
you just
interrupted was a better one than the one that went before, so I’ll
allow that.
Examples like that
demonstrate how and where Wallace was SEEN and HEARD to be unbiased and
fair.
There are a few examples like that. But justice was not done and he was
far and
away unfair.
P.24 MEYERHOFF to
MR THOMAS: Your Worship,
there’s no answer to that that will assist Your Worship in this
matter.
HIS WORSHIP: The answer
“No’’ would be of assistance. It would stop the line of questioning.
THE WITNESS: I’m trying to
tell the truth, Your Worship. Certainly I’ve marched in every May Day
march in
Why would Thomas and
Wallace want to abort the question? Mr Wallace had let witness Carter
answer
the same question.
Wallace demonstrates his
random selectivity about whom he lets ask what questions. On p.33
Stuart is
quizzing witness Henderson.
HIS WORSHIP: Well, same
again,
I'd covered the issue of
drug addiction as an illness/medical condition, which is what Stui was
getting
to before he was cut off
Stui continues on
valiantly asking about the category of problem it should all be and the
answer
is mumbo-jumbo about whole-of-government. Then this quite valid
question from
Stui:
And what’s been the extent
of your consultation with drug users in the community?
HIS WORSHIP: Again,
This is and remains a
crucial question. But it’s almost as if Mr
Wallace was growing bored, so he called “time”. Most of the witnesses
were
asked this, because it gets to the heart of why we did what we did. But
every
time we tried extracting an answer of substance on this simple but
absolutely
paramount question – how did you consult the community about this
legislation,
if at all you did? – we were stonewalled.
Top of p.34:
Isn’t it true that the
impact of the legislation is disproportionately on the disadvantaged or
the
more disadvantaged sectors of society like - like youth, Aboriginal
people, the
unemployed, the working class people, whereas we don’t hear so much
about
people in higher up positions in society being - having their houses
raided,
searched and harassed and taken to court for dealing drugs or using
them?
MR THOMAS: Isn’t that rather
a long question, just an invitation to debate the merits of a bill
which is now
an Act?
HIS WORSHIP: Yes. Yes, it
is,
MR THOMAS: Can any answer
help you?
HIS WORSHIP: No.
MR THOMAS: I repeat the
objection, Your Worship.
HIS WORSHIP: Mr Highway,
presumably the legislation has very little impact on houses from which
drugs
are not sold and it may have a fair bit of impact on people living in
houses
from which drugs are sold, are you asking anything else than that?
It goes on from there.
What Mr Wallace and his co-conspirator Thomas
did was appalling. Any lawyer who has taken his vows would blanche at
that
disgusting obfuscation. A few paragraphs down, Wallace says he
“disallows” the
question, and Stui relents and moves on:
MR THOMAS: Again,
Your Worship, it’s just got no relevance.
That’s the tag-team in
action again. Sure enough, Mr Wallace slaps
skins:
HIS WORSHIP: Mr Highway, in
order that Mr Henderson answer that question, first of all he’s got to
agree
with you that alcohol and tobacco do more harm than other drugs, he
might,
he might not. (they ARE – statistics are there loud and clear
and if he
is any sort of police minister,
MR THOMAS:
Your Worship, whatever the answer is, it still doesn’t help you.
HIS WORSHIP: Well, at least
Mr Henderson is in a position to comment on matters of cheap political
ploys because
he’s a politician he's also
police minister, so can he not answer other questions asked by Stui?
This also
contradicts Wallace’s ruling with the previous witness, Sue Carter, who
was
asked by me about the effectiveness of street marches – Wallace
disallowed the
question. To wit:
P.349, March 7,
ruled invalid an albeit awkward question of mine to Carter:
MR
INDER-SMITH: All right, I’ll rephrase that. I’m sorry.
The protest - street protests on the war in
HIS WORSHIP:
Mr Inder-Smith, Ms Carter said that she has
taken part in Reclaim the Night marches and that’s her only experience.
She
has no particular expertise about judging protests and their
effectiveness.
That comment conflicts
with his “cheap political ploys” ruling, which he allowed with Stui v
Back
to May 19, bottom of p.35:
So I think he can answer
that, and to some extent it might go to
MR THOMAS: As the court
pleases.
HIS WORSHIP: I think that
one does fall within Mr Henderson’s capacity to answer, whether he’s
able to
I’m not sure.
Sorry, Mr Henderson, do you
remember the question or should I have
MR HIGHWAY: I put it to you
that your government’s anti-illicit drug policies is nothing more than
a cheap
vote getting ploy to try and win the conservative voters who would
normally
vote for the Country Liberal Party to get them to vote for the Labor
Party at
the next election so that your government can be returned to power?
---Well, much as I’d love to
have a lengthy political debate, maybe a bit of a lesson in history. We
went to
the people of the Northern Territory very specifically and very target
- very
targetedly with a three-point plan to reduce the amount of illicit
drugs
that were being consumed in our society (Toyne said it was the
DEALERS
they were after) based on - from opposition a very clear
understanding from
research, from being part of this community, that illicit drug use was
causing comprehensive
social harm (How is he so sure about this? He wasn't allowed to
comment on
alcohol/tobacco, so is his credibility at least not questionable?)
to this
community and we detailed a very definitive three-point plan to address
illicit
substance abuse in the
On and on and on he
dribbles for that so-called “specific” answer. But
Stui soldiered on, and
You don’t need
Mr Henderson to answer that. Who knows what was in people’s minds
when
they voted.
A few sentences down,
Stui raises another important issue with the
police minister.
If your government really is
serious about tackling what you see as a drug problem in the community,
why is
funding being withdrawn from drug treatment programs and programs have
been
closed down and funds have been cut off - - -
HIS WORSHIP:
HIS WORSHIP: Mr
HIS WORSHIP: Well, no,
it’s not (yes it is) because the question you asked is
why, present
tense, are funds being taken away from alternative treatment . . .
Surely that must be a
pertinent question. Anyway, Mr Wallace finishes
his stream of consciousness with:
I disallow that question
as well.
At the top of 34, I try
getting an answer as to why
Before his Worship asks
the rhetorical question, Is that a
question, Mr Inder-Smith?
The tag-team deliberate
for a bit, Hendo chips in with his verbiage, I
re-ask the question, Cabinet confidentiality is dredged up, and two
pages later
yet another valid line of questioning has gone the way of all things.
On P.
40, I ask another simple
question: Would it be possible that the reason the people
who
climbed onto the table did so to escape possible assault by the
Parliament
clerk, Lumpy McNeil?
HIS WORSHIP: Mr Inder-Smith, anything’s possible
when you
start to talk about what might be in other people’s minds (that
was one of Mr Wallace’s pet phrases – what’s on people’s mind)
but Mr Henderson can’t answer that question. Why
not? Simple yes or no would have sufficed.
MR INDER-SMITH: I
assure you, Your Worship, I’m trying to get to what the - state of
what
was in his mind at the time. So was it possible?
HIS WORSHIP: Don’t
answer that question, Mr Henderson.
MR INDER-SMITH: You used the
term, ‘rigorous public debate’, Mr Henderson, when was the last
rigorous public
debate conducted in this town?
HIS WORSHIP: Mr Inder-Smith
- - -
MR INDER-SMITH: He said it,
Your Worship.
HIS WORSHIP: Yes, I know he
said it, but there’s no - - -
MR INDER-SMITH: Well, can
you tell me when the last rigorous public debate in this town was
conducted?
I’m simply asking Mr Henderson that question.
HIS WORSHIP: It’s not a
relevant question, Mr Inder-Smith.
MR INDER-SMITH: Even though
it’s - (inaudible) on what he has given in evidence.
I give in and move on to
phone taps. In fact it was a VERY relevant question to ask the police
minister.
We WANTED debate, that’s why we confronted them in parliament. The
answer is
inescapable: Mr Wallace himself KNEW there had not been, and nor has
there
been, any “rigorous public debate” in this town. THAT is why he
shielded
As for my question
about phone taps, that, too, was disallowed.
Top of 42: Do you believe in
open and accountable government, Mr Henderson?---Yes.
Would you describe roads
that are bulldozed through to places like Wickham Point by the
petro-chemical
factory without the public’s knowledge - - -
HIS WORSHIP: Mr Inder-Smith
- - -
MR INDER-SMITH: - - - is open
and accountable government. Maybe I’ll rephrase the question.
MR THOMAS:
Your Worship.
HIS WORSHIP: Yes. Abandon
the question, Mr Inder-Smith.
MR INDER-SMITH: He’s
answered yes to the question, ‘Do you believe in open and accountable
government’.
HIS WORSHIP: Yes.
MR INDER-SMITH: So I just
want to establish his thoughts on something the government sanctioned
when his
government was in power.
HIS WORSHIP: If you find any
relevant ones, Mr Inder-Smith, you can ask him about those, possibly,
but roads
aren’t relevant to this matter.
MR INDER-SMITH: Well, it’s a
controversial road, Your Worship. Maybe I should be permitted to
ask the
question anyway.
HIS WORSHIP: No.
Come down to the bottom
of p.42 I say: Well, Mr Wallace, I’ve asked
you this before and I think the time has come for me to ask you again, I
perceive you to be biased, jaundiced, vexatious and quite frankly not
fit to
hear our trial, so will you stand yourself down from this matter?
HIS WORSHIP: No, I shan’t,
Mr Inder-Smith.
MR INDER-SMITH: Okay. I’ll
move on.
Do you believe in zero
tolerance approach to policing, Mr Henderson?
MR THOMAS:
Your Worship, that’s a phrase a lot of people use and each have -
-
MR INDER-SMITH: By the
Police Ministers themselves.
MR THOMAS: It might require
clarification if it were relevant.
HIS WORSHIP: Mr Inder-Smith,
once again this is an interesting question, an ordinary member of the
public
might really want to know whether the Police Minister, as Mr Henderson
now is,
is keen on zero tolerance approaches to policing, but it’s got nothing
to do
with today’s case or rather last year’s case. He wasn’t the Police
Minister
then, his views on zero tolerance policing may have changed in the
meantime, if
he had any at all at the time and in any event zero tolerance issues
are
matters of - well, really - what I’ve said is enough. It just can’t
help.
MR INDER-SMITH: Well, I
can’t ask a simple yes or no answer?
HIS WORSHIP: No, you
can’t.
MR INDER-SMITH: Is he
adopting the zero tolerance policing approach.
HIS WORSHIP: Certainly not,
Mr Inder-Smith.
MR INDER-SMITH: Why not?
HIS WORSHIP: Because
nobody here in this court ought to really care at all what approach the
government is now adopting to law enforcement - - -
WHAAAAAT???!!!!
MR INDER-SMITH: Well,
Your Worship, that again reflects your bias, I’m sorry to have to
tell
you, but zero tolerance policing is quite a serious issue, in fact it’s
an
issue worthy of public debate.
HIS WORSHIP: I absolutely
agree with that, Mr Inder-Smith.
MR INDER-SMITH: Well, I’m
glad to hear that.
So it goes, with me
eventually withdrawing another question.
Over the next few pages
we had a succession of questions either disallowed, or we were
reluctantly
moved on. On P.51 we had Mr Lambe Fine, I’ll just move on from
that, then we had Mr Wallace ordering him
not to ask the question, at the top
of p.55, still with
In the middle of p.55,
we had
MR MEYERHOFF: Well, I only
had another question related to that, sir. Mr Henderson did raise
the fact
that they are improving anti-drug education through the school system,
I just
wanted - - -
HIS WORSHIP: That’s what he
said, yes.
MR MEYERHOFF: I just want to
make an inquiry as to whether that’s meant increased funding or a new
system,
or just a revamp of an existing system. I withdraw that question
then.
By then, we were
intimidated by Wallace. This was evidence that had come out during this
trial.
We were simply trying to probe about comments that had already been
made, and
were referring to things that Henderson himself had said. Yet between
them,
Wallace and Thomas worked to nullify our line of questioning: Wallace,
by
either outright refusal, and-or Thomas, by simply prompting the
magistrate with
an objection or the like. By now, so many questions were being
circumvented, we
were giving up and withdrawing them ourselves.
Toward bottom of p.55,
still with
MR THOMAS:
Your Worship, how does that help? Governments make decisions in
all sorts
of things, how does that help sort out what happened on 14 May?
HIS WORSHIP: Mr Meyerhoff, I
think you might legitimately ask Mr Henderson if he was aware that the
detox
facility has been closed, there might be a question you can ask arising
from
that, that is for example what’s taken its place. But as to why
I don’t
think questions of policy like that are properly put in this court.
Are you aware of the detox -
or a detox facility being closed?--
In the first instance,
Wallace was being SEEN to be unbiased (by
suggesting a question for
Middle of 56 But
you’re a member of Cabinet, surely - - -
HIS WORSHIP: Mr Meyerhoff,
it’s a task force that we’ve heard - or you’ve heard, reports to the
Health
Minister. Mr Henderson might have kept up with the health portfolio
once upon a
time when he was in opposition, but he’s said explicitly he hasn’t done
so
since.
MR MEYERHOFF: I withdraw
that question.
By the middle of p.57
it is clear that Wallace has us rattled.
And then, from
That’s the cue for
Thomas who finally demands that Wallace put an end
to this particular question, which had also been asked of Carter and
Burke.
Wallace then goes into his spiel about the relevancy of the question,
etc. But
where was his censure of the witnesses? Why was he not as assiduous
with his
demands for THEIR being “proper” and “correct” in what THEY were saying
in his
courtroom? Why didn’t Thomas and-or Wallace jump on them when THEY
dragged his
courtroom and the judicial procedure into disrepute with their
repetitious outpourings
of specious gobbledegook, evasiveness, hyperbole and sweeping
generalisations
(for eg, Henderson’s burst of duckspeak in the middle of page 36, under
cross-examination by Stui. Why were the witnesses never ever chastised
for not
answering specific questions?
Bottom of p.70, another example of where we
failed in our
cross-examination, to capitalise: MR MEYERHOFF to the Chief
Minister: To your knowledge were there any
public
meetings held with regards to the Misuse of Drugs Amendment
Bill?---What I am
aware of is that the Network Against Prohibition did not approach the
Minister
for Justice and - and ask for a meeting in all the time.
That wasn’t the
question – and Wallace should have chipped her because of it.
So you’re not aware of an incident on 20 March
last year
when five members of the Network Against Prohibition were arrested at
the front
of the Justice Department?
Middle of p.71 MR
THOMAS: Your Worship, it’s a wonderful review of how the
government
functions in the Territory. It’s of no relevance to this case, this is
not an
inquest.
MR MEYERHOFF: It should
be.
His worship then
launches into another vacuous discourse which includes
this line:
how well co-ordinated those
two projects were, or whether they’re co-ordinated at all is neither
here nor
there. He finishes the phrase with
another
who cares?
MR MEYERHOFF: I’ll
withdraw the question.
p.72: Do you
believe that civil disobedience plays some role in our
society?---If we are speaking specifically about the actions of 14 May,
no.
Generally - a generalisation
- - -
MR THOMAS:
Your Worship, the witness has answered - - -
MR MEYERHOFF: I withdraw
it.
What was wrong with the
question? It was asked in various ways, of previous witnesses and
neither
Thomas nor Wallace objected.
Middle p.73 At this
stage do you have any figures that indicate
there has been a reduction?
HIS WORSHIP: Again, Mr
Meyerhoff.
MR MEYERHOFF: I withdraw
the question, sir.
p.76 Stui to Martin: HIS
WORSHIP: Is that the line you are working on?
On he goes with a
sudden burst of trivia about drug users committing
property crime and how it is commonplace. Then this:
You can take that as an
established fact. It was in your evidence, I think it was one of
the pieces
of evidence that was uncontroversial.
All this from the man
who just an hour or so earlier, was non-committal
about the damage being caused by cigarettes and alcohol. Mr Wallace
demonstrates that he knows and understands the link between drug-use
and
property crime – but it is obvious he does NOT know of the bigger
picture and
the ravages and human rights violations of the War on Drugs. If he
does, he
remained silent on them. Again, he cuts Stuart off when he asks Clare
Martin a
perfectly valid question:
MR HIGHWAY:
Wouldn’t - you say it would be better -
wouldn’t it be a better approach for the NT Government to - to work
towards the
- against the prohibition approach and concentrate more on the health
and
social issues that lead to drug use and given that illicit drug users
are and
always have been and probably always will be, the - Territorians and
it’s -
they’re part of the community?
MR THOMAS: That
question’s plainly argumentative, Your Worship.
It’s not only asking her about events after
14 May, he’s asking about the step after today.
HIS WORSHIP: Yes.
HIS WORSHIP:
Mr Wallace is verbose
while refusing it for the next few sentences. Stuart retorts with:
Back to our
motivations . . . ultimately Mr Wallace paid them scant regard.
A lot has been made of
the witnesses’ exaggerations and at least Ms Martin had the good grace
to
apologise for hers. But then, she didn’t have much choice, because in
the
middle of giving evidence, she was forced to watch the parliamentary
video of
the terrifying incident. Before it began, I told her specifically, at
the
bottom of p.79, to “look out for signs of anybody running”. Five
minutes later,
Ms Martin wanted to change the tune she had been singing with the rest
of the
witnesses:
MS MARTIN: I was simply wrong about that, so I
apologise for
that.
MR INDER-SMITH: Thankyou. The Network Against
Prohibition
accepts your apology.
This was the only time NAP thought to
replay the video to “jog” the memories of all those witnesses who
claimed there
had been “dancing”, “jumping” etc, inside the chamber. In other words,
all of
them who were CONVINCED that that’s what we did, perjured themselves.
This was
not a simple case of people’s recall being flawed. The witnesses were
our
elected representatives, they are/were
supposed to be above suspicion. That they should exaggerate about the
same small
facts, proves they were all intent on blowing the incident out of
proportion.
An EL would not have been so slow to resort to the key piece of
evidence.
__________________________
On March 5 and 6, Mr
Wallace was
breathtaking in the way he shielded Attorney-General Peter Toyne and
deputy
Chief Minister Syd Stirling from questions about the Drug House
legislation. As
a consequence, nobody found out – not even him – who actually spilled
the first
drop of ink to initiate the controversial and widely discredited bill.
Mr
Wallace’s conduct was shameful. He deserted every oath he ever took to
get to
where he is. While giving Toyne and
Those emissions were
of a different nature to the brief, solitary pronouncement that was
enough to
make eyes roll back into their sockets on May
19. In some ways, Mr Wallace excelled himself. It’s hard to
believe, but he
did. The objective was the same – to sabotage cross-examination, which
by
co-incidence, was being conducted by his favourite defendant. This
time, the
witness was Chief Minister Clare Martin. Mr Wallace’s foray onto
fatally thin
ice begins halfway down p.89, after I say to Ms Martin:
Clare, you talked
authoritatively of the potency of
current day marihuana, can you elaborate that?
MR THOMAS: Your Worship
- - -
HIS WORSHIP: That’s
irrelevant too.
MR INDER-SMITH: Well, she
did talk as if she’s an authority on how much stronger it is today -
allegedly
today.
And awaaaaay he goes:
HIS WORSHIP: Mr Inder-Smith,
it’s a well known fact, I don’t know if it’s true but it’s a well known
fact
it’s reported in newspapers and in government reports that
hydroponically grown
marihuana is - I don’t know, the figures quoted are wild, but there -
everybody
says it’s greatly more powerful today than it was a generation ago. As
I say, I
don’t know that it’s true, but Ms Martin has access to the same
material that
you and I do read on that, whether we believe it or not is another
question.
That probably takes the
golden roscoe for the most absurd stream of
consciousness to have emanated from any one set of human vocal chords
during
the entire two-week hearing. It is stellar in its banality. If there
were a
hall of fame for imbecilic utterances, that 90-word masterpiece would
be
welcomed with a red-carpet and canon fire. It is as disturbing in
magnitude as
it is jaw-droppingly ignorant and head-rattlingly convoluted. If the
criminological tenet, Language Structures Thought, were at play during
the
emission of that flatulence, Mr
Wallace’s tongue and cerebral cortex must have shared more than just a
spliff
of Clare Martin’s dreaded hydro, they must have dropped a tab of
new-age LSD
together. If there had been a bullshit meter in the corner of his court
room,
it would have started smoking, then melted into a fused heap on the
carpet. The
really worrying thing is that it came not from the morons posing as
witnesses,
but from the man who was weighing up the evidence, with the view to sit
in
judgment and later pronounce sentence on the accused.
For asininity it beat
anything from Elferink, Carter, Kiely, Toyne,
_________________________
Mr Wallace glorifies in
his witness protection racket on pages 89 and
90. In the middle of p.90 he takes the time to say:
Don’t waste our time, Mr
Inder-Smith.
Me waste the court’s
time? He has the wrong bloke.
Me: Ms Martin, is it not
possible that if drugs were legalised the incidents of property crime
would
drop and quite considerably I’d suggest.
MR THOMAS: It’s
argumentative, Your Worship.
HIS WORSHIP: Yes, and irrelevant.
MR INDER-SMITH: It’s not, is
it possible, yes or no.
HIS WORSHIP: Mr Inder-Smith,
you can put that proposition to me and I can say, yes, it’s possible
and Ms
Martin can say yes, it’s possible, she’s not sure, she doesn’t know.
The point
is, the answer isn’t going to assist because Ms Martin is not an expert
on
criminology.
I ask: And to what
effect, Ms Martin, how is it damaging our youth?
MR THOMAS: Argumentative,
Your Worship. (Sustained)
p.93 Personal bias
against me.
HIS WORSHIP: I’m well aware
of that, Mr Inder-Smith, but that isn’t really an issue. You beliefs
are clear
enough, not as clear as Mr Highways, because he’s been far
more lucid,
but they’re clear enough and what the laws are is clear enough, whether
you’re
right or wrong doesn’t matter too much.
More Wallace aggravation
in the middle of p.94:
HIS WORSHIP:
Mr Inder-Smith, what’s the question? And if you
don’t ask a relevant question soon I’m going to ask you to stop your
cross-examination because you haven’t done anything in the last 10
minutes
P.102 contains a comment
that typifies Wallace’s approach.
HIS WORSHIP: Mr Meyerhoff,
there can’t be much because all your colleagues and indeed Sergeant
Thomas
haven’t asked many relevant matters . . . We weren't allowed to
that's why
At the top of p.104, a
simple comment from Mr Wallace – “she’s
changed her mind” – is another example of his willingness to protect
the
witnesses.
May 20
Mr Wallace can’t help
himself. He comes at me whenever I ask direct
questions or ones that make the witnesses uncomfortable. At the top of
page 33,
he refutes something I say to witness Marion Scrymgour.
INDER-SMITH: You said that
the alleged invasion was an act of violence.
HIS WORSHIP: No, she didn’t say that, Mr
Inder-Smith. And he then proceeds once more to try to
impugn me and have my recall thrown into doubt. I was the one who had
it wrong
etc. He begins talking about Stuart’s evidence. He calmly and
imperiously sets
the record straight -- or so it would seem.
Well, I’m sorry
Zealous Dick, it was you who had it wrong, because Ms Scrymgour said
PRECISELY
that. On p.27, she is asked by Ema Corro:
Well, what would you say to someone who said that
it was a
peaceful protest, that it wasn’t violent?
And Ms Scrymgour
replies: Well, it depends if you say that – I mean as a member in
that
Chamber and felt violated I suppose you could interpret that as an act
of
violence, I mean committed in an area where it shouldn’t have
happened.
On page 47,
Witness exaggeration is
explored again from p.48, and Gary Meyerhoff
argues lucidly and compellingly, talking about the “lowlights” of the
trial
thus far: Syd Stirling’s lies; Ms Carter’s amusement at what we did; Ms
Scrymgour’s apparent fear; and of course, all the wild references to
the
jumping and dancing we performed inside the chamber.
Then Dick comes back
in at the bottom of page 48: Wallace: So I don’t know that the use
of the
phrase ‘jumping on the table’ meaning getting onto the table really
excites any
suspicion, it’s just a careless and very every day usage. The idea of people jumping up and down is a
bit different because that didn’t happen at all and as you say about
running,
there’s no evidence of anybody going at much speed until I think
perhaps Ms
Corro gets up to a bit of a trot when she’s trying to escape the
attentions of
somebody moving up towards the Speaker’s chair, but that’s not at the
time of
the entry. So you’re right about that.
MR MEYERHOFF: But
to
me it’s just misleading language, sir, and it’s been repeated
through
and especially people running into the Chamber which, you know, is
obviously
not the case, people just strolled in.
My co-appellant
articulated this nicely way back in May, 2003. For
Mr Wallace to act as an apologist for
exaggerations being made by the witnesses in his courtroom,
demonstrates his
disgusting bias. If the witnesses were in any other trial, would he
have
guarded them the same way? Would he have “ridden shotgun” like he did
for the
politicians? I think not.
He was too blasé
in dismissing this careless hyperbole.
This was not a backyard
barbecue where an adjective was being bandied
around with the expectation that listeners would invariably interpret
it
liberally and apply its generic sense, as with “jumping into or out of
a car”,
to quote Mr Thomas. Mr Wallace was being unfair to the defendants with
his cavalier
attitude. These were supposedly senior public figures – the Territory’s
most
powerful and well-paid plutocrats – who should know how to use the
language,
without embellishments. I regard
Mr Wallace to have rushed to their
aid all too often. He did this when they ventured into dangerous ground
and
were at risk of contradicting themselves, though he wasn’t always quick
enough
off the mark in that regard, and especially when he saw that their
answers
might incriminate themselves and-or the government.
Anyway, Mr Wallace
betrays his bias at the top of page 50, in reference
to Jane Aagaard’s evidence: . . . at the end of her evidence I had
a fairly
good grasp of the sequence in which things had happened in that field.
Poppycock. She was just
as evasive in her testimony and used just as
much duckspeak and jargon as anybody. For
Wallace to say that he understood it, is him dissembling – again.
In the middle of p54,
Gaz: The High Court’s held that I’ve got that
right and my submission is that the – I think section 61 of the
Criminal Code
that we’ve been charged with – that that piece of legislation actually
conflicts with the Australian Constitution and therefore that we can’t
be found
guilty of that offence.
Top of p.56: MR
THOMAS edifies
with: Your Worship, just dealing with one count under section 61(a)
of the
Criminal Code, my research indicates that this section has a parallel
in
Queensland – their Code – and would appear to have its origins in the
Tumultuous Petitioning Act of 1661 (that’s
how antiquated this law is – Mr Thomas articulates for us – it’s a
prohibitionist law, to prevent revolt; to stop the troops revolting . .
. to
stomp on democracy) which was enacted to remedy a situation which
had
arisen immediately before the English civil war and indeed apparently
Cromwell
when he wasn’t on the side of Parliament was a tumultuous petitioner
and so the
restored Monarchy was quite happy to see this Act go through to prevent
new
Cromwell’s arising.
Section 61 reads:
So far as is relevant any
person who intentionally disturbs the Legislative Assembly while it is
in
session . . . is guilty of a crime.
Gary used the word
dodgy and that was the apt description of these
witnesses: Syd Stirling, who claimed he had never seen the pigs-head on
a
platter before, even though it had been thrust under his nose, like the
petition (March 5, p.185); Kon Vatskalis - “(people) yelling” three
times in
one sentence from March 6, p.202; and Jane “somebody made a threatening
remark
to me but I don’t remember what it was” Aagaard (March 6, p.242).
On page 21, Section 34(3)
(provocation) arises. The appellants were in no way able to challenge
all the
things that were said. There is no mention of the Drug House
legislation, which
provoked us into doing what we did.
The
defendants/appellants were to learn to their misfortune, and not
until well after the hearing, that one of Mr Wallace’s fortes was the
easy way
he could “stretch” evidence to suit either himself or the witnesses -
or just
to stretch it for the sake of it. His efforts on March 5 and 6 were a
low point
in proceedings. However, what he said about the assault of Gary
Meyerhoff
inside the chamber by Commander Bert Hofer, of the NT Police Service,
was also
an example of how he himself could exaggerate with the best of them.
On P.35, Mr
Wallace says: Mr Hofer made no denial about
what Meyerhoff
was alleging about the assault of himself and Mr Hofer was happy to
say he
had dropped Meyerhoff down the stairs.
Mr Hofer said
nothing like that. When giving evidence to Gary himself, on
MR MEYERHOFF: So
what happened then?
MR HOFER: I grabbed
you by the shirt and
shoulder and you proceeded to go limp and I physically grabbed you and
because
you were still and supple in position, dragged you down the two steps
leading
to the speakers chair, pushed you toward the exit and let you go.
Mr
Wallace had a colourful turn of phrase – especially
when describing actual or potential violence. For instance, on pp.35,36
he
said: Suppose the honourable members had banded together and
grabbed the
protesters and beaten them black and blue within an inch of their life
and
tossed them out the door, what difference would it make to this charge?
Perhaps none – but one
would expect a few charges of assault to be
laid.
And on the subject of inability
to
comprehend and-or paraphrase lucidly, how about this summary of
something Clare
Martin purportedly said to
Yet this was Mr
Wallace’s take on that answer 23 pages later, on p.101, while
HIS WORSHIP: I
don’t
see any ambiguity about that, or any need to expand it,
Mr Meyerhoff and
Ms Martin’s referred to changes in information about the medical harm
or harm
that marihuana can do and to the increasing strength of drugs and
other
things. She says she’s changed her
mind.
To put it in the
vernacular, that is bullshit.
June
5
At the bottom of page
12 of his summing up, Mr Wallace can’t help
himself: Every one of those witnesses was upset by the
incursion
into the Parliament; some were angry about it; Mr Vatskalis could be
called to
mind in particular. Some were scared, made fearful by the events. Every
one of
them plainly desired that such a thing not happen again as victims
of most
crimes do. None of them has suffered any lasting trauma that I can
see. Ms
Scrymgour was perhaps the most upset but seems to have got over her
anger
and fear. No, she acted as if she was.
Wallace just believed her, or ruled in
her favour for his own reasons.
Res
ipsa loquitur
_______________________________________
For the record
Examples of my asking
at least
three questions in a row*
(before Mr Wallace’s
dummy spit
on
Example 1: p.78 - I asked Mr Elferink five
questions in a row;
Example 2: p.94 - I asked Mr Kiely five;
Example 3: p.96 – “ “
“ “
four.
Example 4: pp.38-40 – I asked Stui twenty-five;
Example 5:
pp41-42 – “
“
“ five;
Example 6:
pp44-45 - “
“
“ nine;
Example 7:
pp46-47 - “
“ “ eighteen;
Example 8: p.48
-
“ “
“ six,
etc.
March
4
Example 9: p.46 – I
asked police officer Paolucci six in
a row;
Example 10: p.47 – “
“
“
“
“ six.
March 5
Example
11:
pp122-123 - I asked Mr Toyne three;
Example 12: p.124 - six;
Example 13: p125 – six;
Example 14: p126 – seven;
Example 15: p.127 – three;
Example 16: p.124 – six;
Example 17: p.126 – seven;
March
6
Example 18: pp209/10 - I asked Mr Vatskalis
thirteen in a
row.
Example 19: p.299 – I asked Mr Burke five in a row.
* I considered all the
questions
I asked to be relevant. They depended upon the witnesses. For instance,
politicians were asked if they had exaggerated the events of
IN THE
COURT OF APPEAL
OF THE
OF
AP 12 of 2004 – (20207648)
AP 13 of 2004 – (20207624)
AP 15 of
2004 –
(20207623)
ON APPEAL from the judgement of
Angel J in proceeding
No. JA 100/03, 101/03, 102/03 and 105/03
BETWEEN:
ROBERT PAUL INDER-SMITH (AP 13/04)
GARY
WILLIAM
MEYERHOFF (AP 15/04)
Appellants
AND
THE QUEEN
Respondent
______________________________________
APPELLANTS’
WRITTEN
SUBMISSIONS
______________________________________