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Court in the Act
28 November, 2007  
Justice Adams' "whim"

Swivel-eyed pundit Gerard Henderson says Justice Michael Adams’ finding of dishonesty against an ASIO officer was based on a “whim”. Could this be so?


imageSepulchral scribbler Gerard Henderson (pic) trotted out one of his more spooky Sydney Morning Herald efforts last week.

He bemoaned the loss of “civil rights” for the ASIO officers who Justice Michael Adams found had misconducted themselves in their interview with 21-year old UNSW medical student Izhar Ul-Haque.

This was the case in which the NSW Supreme Court judge found that the records of interview were inadmissible because the reliability of the evidence had been affected by the coercive and threatening behaviour of the ASIO and Federal Police officers.

As a consequence the case against ul-Haque collapsed.

Ul-Haque been charged with receiving training in Pakistan from a terrorist organisation, Lashkar-e-Tayba, which is committed to getting India out of Kashmir.

Lashkar-e-Tayba was proscribed as a terrorist organisation in late 2003, which was after the accused allegedly committed the training offence. But no matter.

The interest of the authorities in ul-Haque was excited because he had contact with Faheem Lodhi, the Pakistan-born, Sydney architect, who was found guilty last year of planning a terrorist attack.

St Gerard’s grizzle was that:

“Virtually no one steps forward to defend the rights of those whose role it is to protect society from terrorism or the threat of terrorism, namely officers who work in the security or police services who are often incorrectly referred to as ‘spies’.”

Bugger any Nancy-boy concern about the rights of the citizen against abuse by agencies of the state. No, St Gerard is more worried that the rights of spooks should remain untrammeled so they can get on with the task of intimidating, unlawfully detaining and trespassing.

It’s a nice twist.

The crusty Stalin-watcher asserted that in finding the ASIO agent B15 to be evasive and dishonest in giving evidence, Justice Adams was acting “essentially on the basis of a whim” and that this was a “flimsy ground indeed to tarnish an ASIO officer’s professional career by a finding of dishonesty”.

Further he exhibited “evident vehemence” towards the ASIO people.

It got even more challenging. Hendo suggested that because ul-Haque had not been physically harmed by the agents that Adams should not have said that B15 acted in a manner “reminiscent of Kafka”.

Fortunately Adam’s judgment reproduces sizeable slabs of the transcript of the hearing, which helps an assessment of whether he acted on a “whim” or on “flimsy” grounds – both pretty serious charges.

The background is that on November 6, 2003 about 20 or so ASIO officers and another four or five AFP officers turned up at the ul-Haque home with a search warrant.

That evening ASIO officers apprehended their target at the parking lot at Blacktown train station, (which Adams found amounted to kidnapping) leaving his 17-year old brother (who couldn’t drive) in the car.

The agents drove him in their car to a nearby park where they told him, according to B15:

“You’re in a substantial amount of trouble. We are conducting a very serious terrorist investigation at the moment and that investigation has lead us to you. We have many means of investigation and we hold considerable information about you. What we now require from you is your full co-operation with ASIO.”

In cross-examination by Ian Barker, the following exchange with B15 occurred:

Barker: “You say that, ‘At Francis Park it was pointed out to Izhar that he was in substantial trouble and that his full cooperation with ASIO in resolving the matter at hand would be required’. Again there doesn’t seem to be much room for an option not to co-operate with ASIO, does there?

B15: I can’t speculate as to what he had in mind –

Barker: I’m not asking you to speculate, I’m asking you to consider the words, ‘his full cooperation in resolving the matter with ASIO would be required’, not asked for, ‘required’. It’s a perfectly simple English word, isn’t it?

B15: It is.

Barker: There’s no doubt about what you were doing, you were requiring him to answer questions?

B15: In order to establish the truth of the matter.”

Justice Adams preferred the evidence of ul-Haque to that of the ASIO and AFP officers on all key points, and he described the evidence of B15 as at times “evasive and dishonest”, particularly citing the following exchange, where His Honour displayed his trademark interventionist style:

Barker: “What does the word ‘require’ mean?

B15: That in order to establish the facts of the matter, that is the serious terrorist investigation with which we were conducting that we needed him to be honest in answering questions that we had of him.

Adams: Are you suggesting that you intended to convey that he had a choice about whether he could talk to you or not?

B15: Well, we were just saying –

Adams: No, are you suggesting that you intended to convey by the words that you used to him that he had a choice about whether to speak to you or not?

B15: He always had a choice, your Honour.

Adams: That is not my question. Did you intend to convey by the words that you used that he had a choice about talking to you or not?

B15: Yes, I did, your Honour.

Adams: Why didn’t you tell him that?

B15: Well, I was encouraging him to tell the truth.

Adams: What didn’t you tell him that he had a choice if you wished to convey that notion to him?

B15: I am not in a practice to say to somebody that it is okay to lie to us.

Adams: You are not in the practice –

B15: Your Honour, I am just saying we are not in the practice of saying to someone it is okay if you lie to us, so we were encouraging him to tell us the truth, simple as that, your Honour.

Adams: He may have wished to remain entirely silent?

B15: That’s true, your Honour.

Barker: Quite clearly you offered him no choice but to talk to you. You demanded he give you answers, right?

B15: No, I don’t agree that we demanded that he give us answers.

Barker: What does ‘we require you to be honest with us and we require your full cooperation’ mean?

B15: In order to establish the facts of the case, i.e., the serious counter-terrorist investigation we are undertaking, that we required honest answers to establish what was happening.

imageJustice Adams found:

“Any ordinary member of the public, let alone a 21-year-old, would, I think, be disturbed and frightened by being informed by intelligence officers that, rather than going to some office for questioning, this was going to take place (close to dark) in a park where the conversation would be ‘private’.

“The very mode of questioning was intimidating. He was not told what was being investigated except in the most general terms. He was told, in effect, that he knew what he had done wrong. It is scarcely surprising that he hung his head… This is reminiscent of Kafka.”

The ASIO officer said he was taken to the park because it was a “timely” thing to do. B15 had no explanation why ul-Haque could not have been taken to an ASIO office.

The officers later, ostensibly under the authority of what was a search and seize warrant, took ul-Haque to his parents’ bedroom and conducted an interview throughout the night.

The times, as recorded by the ASIO search team diarist, were: 12.04 am to 12.55 am; 1.00 am to 1.07 am; 1.55 am to 2.05 am; 2.09 am to 3.00 am; and 3.17 am to 3.45 am.

Ul-Haque’s version of events at a later encounter were that AFP officers came to his house and in the backyard Officer Gawel told him:

“Izhar, you’re a medical student and I think third year is a very important year for medical studies and you wouldn’t want to miss third year medicine would you? And we can make life very difficult for you and your family, and if you don’t co-operate with us, you’re not going to be able to continue your studies.”

The officer denied making these statements, but Adams “reluctantly” concluded he could not be believed.

The judge found the ASIO officers committed the criminal offences of false imprisonment and kidnapping at common law and also an offence under s86 of the Crimes Act 1900 – taking or detaining of a person without that person’s consent as well as false imprisonment at common law.

Adams said:

“Their conduct was grossly improper and constituted an unjustified and unlawful interference with the personal liberty of the accused. So far as their conduct in his parents’ home is concerned, it also constituted an unlawful trespass against the occupants, since they gained admittance under colour of the warrant which did not authorise what they did: keeping the accused incommunicado in a bedroom, let alone subjecting him to compulsory questioning.”

Improper use of a search warrant, illegally taking the suspect to a park where no witnesses were present, intentionally and improperly instructing ul-Haque that there was an obligation not only to accompany the officers but to answer their questions, beating-up the seriousness of the investigation, and keeping him incommunicado by misuse of the warrant.

How flimsy a whim can you get? Could it be as flimsy as the Victorian Court of Appeal overturning the Jack Thomas conviction because of involuntary confessions in Pakistan?

Unless another appeal is launched, ASIO also must be getting ready to file all documents relevant to the deportation of Scott Parkin on the ground that he is a security risk. Also, the agency must produce its thinking behind keeping Mohammed Sagar and Mohammad Faisal on Nauru for five years.

ASIO has been fighting these orders tooth and nail – so much so that it would not surprise if the material revealed only “flimsy” national security concerns. Something bordering on a “whim”, perhaps.

Anyway, the security people must be delighted to have St Gerard throwing a few Molotov cocktails from their corner.