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Court in the Act
5 December, 2008  
Blundering spooks cleared by the right people

If ASIO’s in strife the Inspector General of Intelligence and Security will gallop in to sort things out. According to Ian Carnell that duffer Justice Michael Adams got it all wrong in the ul-Haque case. Jonathan Gadir reports


imageA couple of weeks ago in his regular Sydney Morning Herald column the cold war warrior Gerard Henderson assured us that Australia’s national security laws have “worked well”.

He mentioned the case brought by the government against Izhar ul-Haque, which collapsed after Justice Adams of the NSW Supreme Court in November last year threw out ASIO’s evidence.

Hendo went on:

“Unfortunately most journalists expressed little interest in the subsequent report of the ul-Haque matter by Ian Carnell, the Inspector General of Intelligence and Security …

Carnell found that in November 2003 ASIO was justified in apprehending the real possibility of a terrorist attack in Australia and that it’s information about ul-Haque justified him as being regarded as a person of interest.

Carnell also found there was no evidence before him that supported a finding of false imprisonment or kidnapping against ASIO officers.”

Hang about. We can’t let him get away with that.

The Carnell report on ul-Haque, a medical student at the time of his arrest and now a doctor, contained more fruit than a Margaret Fulton Christmas cake.

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

The report was initiated by Carnell following Adams’ judgment.

It’s not the first time that Henderson has leapt to the defence of ASIO’s handling of the ul-Haque case. Shortly after Adam’s decision in 2007 he wrote that the findings by the judge were based on a “whim” and that the rights of the security agents had been trampled on.

Adams found that the security and “intelligence” organisation had falsely imprisoned and kidnapped ul-Haque and had trespassed on his family’s property.

This happened in a Blacktown park, in ul-Haque’s car and at his home in November 2003.

Plenty of details in earlier Justinian story

Adams said that the records of interview were inadmissible because the reliability of the evidence had been tainted by the coercive and threatening behaviour of ASIO and the AFP.

Carnell took evidence from nine ASIO officers and reviewed all the documents and video material and concluded the two principal ASIO officers in the frame (B15 and B16) lacked the intention to commit any of the offences identified by Adams.

imageHe said he wrote twice to ul-Haque’s lawyer, Adam Houda (seen here with his client), inviting him to put his case, but received no reply.

Carnell said he drew no adverse inferences from ul-Haque’s decision not to respond.

Adams believed ul-Haque’s testimony over that of B15 and B16, which he found to be “evasive” and “dishonest”.

Carnell decided it was possible to believe both ul-Haque and the ASIO officers’ account of events.

The inspector general accepted legal advice that he not weigh up the conflicting evidence.

Instead, he concluded ul-Haque had a mistaken perception of what was going on:

“It seems to me entirely possible for the participants in this series of events to substantially differ in their apprehension of what was occurring. Mr ul-Haque may have subjectively felt that he had no practical alternative but to go with the ASIO officers, especially given that his impressions of how security agencies operate might have been shaped by how some agencies in other countries operate. On the other hand, given their own background and understanding of ASIO’s role, a physical confinement or detention of Mr ul-Haque may be something that was neither intended by the ASIO officers, nor something which they actually foresaw as occurring.”

Against this, is the evidence from the proceedings before Adams. There it was established that B15 had told ul-Haque, after he was driven to the park, that he was “required” to give his “full co-operation” to ASIO. He was not told he had a choice to remain silent.

imageCarnell’s (pic) assessment is coloured by his closeness to the intelligence agency’s “culture”. Immediately before his current job he was a deputy secretary in the Attorney General’s Department in charge of criminal justice and security.

Previously he had worked at Veterans’ Affairs and Centrelink.

He clearly had a high regard for B15:

“I do not see such [supportive] comments [by fellow ASIO officers] as colleagues merely ‘sticking together’ because I have a good knowledge of the work of the officer who gave this testimony to me, and I am confident he is a person of integrity and professional in his work.”

You can’t get more dispassionate than that.

Carnell suggested the agents may not have made a good impression in court because of their reluctance to talk in public.

“I have the advantage of familiarity with ASIO’s operations and culture gained over the last four and a half years in particular. Also, in giving evidence to me there was no basis for B15 and B16 or other ASIO officers to be inhibited or reticent in discussing ASIO methodologies, operations or personnel as their testimony was being given before officials with comprehensive security clearances and in a security cleared environment. B15 and B16 may well have been more reticent or hesitant while giving testimony in court proceedings.”

The IGIS was bolstered by the following morsels:

  • Ul-Haque said either “Yes” or “OK” when asked by B15 at a railway station to accompany him.
  • Ul-Haque did not complaint or protest:
  • Ul-Haque did not voice any objection, or question whether he had a choice about answering the questions. He didn’t request a lawyer.
  • Ul-Haque did not complain that B15 or B16 threatened or otherwise mistreated him or that he had fears for his family.

    On the other hand Adams saw it like this:

    “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.”

    Carnell went through each element of the ASIO officers’ actions that were found objectionable by Adams.

    Without the bothersome detail of needing to test the ASIO boys’ evidence and steeped in his appreciation of the ways of security agencies, Carnell conjured a favourable interpretation of what happened.

    For example, the officers’ taking ul-Haque from the car park at the train station to the deserted park was seen in this rosy hue:

    “In the car park Mr Ul-Haque could conceivably have been recognised by passers by, with issues arising about his safety and/or that of the ASIO officers… An open space such as a park will often be less threatening than going to an enclosed space. I do not think ASIO using a public park is necessarily improper, and it was not improper in this instance in itself.”

    In relation to the offices that Adams found the officers had committed Carnell concluded they lacked the required mental element for false imprisonment and kidnapping – i.e…

    “that they intended to relevantly confine or detain Mr ul-Haque or foresaw, at that time, that Mr ul-Haque would regard himself as in confinement or detention as a result of their conduct.”

    He therefore determined there was no reason to refer the matter for prosecution.

    Carnell implied his legal advice was that the tort of false imprisonment may arise in the circumstances, but he could not recommend any compo since ul-Haque had not complained to him or provided his version of events.

    Justice Adams also found that ASIO had trespassed and had unlawfully detained ul-Haque by holding and questioning him and members of his family in their home under ostensible authority of what was only a search warrant.

    Carnell had no trouble with any of that because, according to the two spooks, ul-Haque consented.

    He did recommend that:

    “ASIO should ensure that any person it interviews on premises where an entry and search warrant is being executed, clearly understands that the interview is not conducted under the authority of the warrant.”

    Carnell’s report appears to be inspired by disappointment at the failure of the prosecution.

    Several recommendations are aimed at improving ASIO coordination with the AFP, which is what Sir Lorenzo (The Magnificent) Street recommended in his report on the ul-Haque affair.

    Also:

    “ASIO should further train all relevant staff on what steps can reasonably be taken to avoid ASIO activities impacting on the gathering of admissible evidence by police.”

    There is the usual pile of other recommendations, “which cannot be put in the public domain” and remain state secrets.

    If ASIO’s in strife Carnell’s your man. And Hendo’s on the sideline cheering.

    * * *

    imageThere was also a side play in all this.

    In the aftermath of Adams’ judgment, the then secretary of the Commonwealth AG’s department, Rob Cornall (pic), on the day before the 2007 election, wrote to the NSW Judicial Commission to complain about the judge.

    Cornall sought the commission’s views on “the propriety” of Adams’ findings of criminal behaviour in circumstances where there were no charges against the officers and no jury verdict.

    He wrote that the statements reflected “adversely and very unfairly” on the officers concerned.

    See his letter letter to the Judicial Commission.

    Ernie Schmatt, the CEO of the commission, replied:

    ”[It is] no part of my role … to express views on a judge’s conduct at the request of a government department or any individual.”

    He reminded Cornall that the judge was doing exactly what was required of him by s.138 of the Evidence Act, which contains the discretion to exclude illegally obtained evidence.

    “There is no function for a jury to perform in that procedure,” he wrote.

    Why on earth didn’t the government test Adam’s thinking with an appeal – instead of setting loose the bureaucratic hounds?

    See Schmatt’s letter.

    See Carnell’s report