AFP accused of fabricating evidence, yet again!

Post update

The Australian Government has today 28 September, 2011 at 7:30PM announced that it has invoked its right to immunity from prosecution in the Solomon Islands over a secret witness payments case involving the Australian Federal Police, which is discussed below.

AFP accused of fabricating evidence in the Solomons

SBS Australia has reported on Australian radio that secret witness payments made by the Australian Federal Police (“AFP”) are at the heart of an extraordinary compensation case currently underway in the Solomon Islands (“SI”).

Three former politicians, Alex Bartlett, Charles Dausabea and Nelson Ne’e, are suing the Solomon Islands Government (“SIG”) claiming the AFP set them up for political purposes.

The claim comes amid on-going criticism of some actions by the Australian-led stabilisation mission to its Pacific neighbour, known as the Regional Assistance Mission to the Solomon Islands (“RAMSI”).

Background to the claims

The biggest corrupting influence on Solomon Islands politics is RAMSI. In 2003, the Australian Government deployed hundreds of troops, police and government officials to the SI and ever since has maintained effective control over its state apparatus, including police and prisons, legal system, finance department and central bank and other sections of the public service.

RAMSI controlled police (primarily the AFP) and prosecutors have arrested and detained a significant number of prominent public figures, including members of parliament who have been critical of Australia’s intervention in the SI on charges of involvement in the communal fighting which emerged in 1998-99 between rival militias from Malaita and Guadalcanal.

Several of these high profile critics of Australia’s intervention were subsequently imprisoned for protracted periods only to be acquitted at trial for lack of evidence. At the same time a number of major criminal identities, who the local’s refer to as criminal ‘big fish’, remained at liberty, free to express their public support for RAMSI.

Someone who openly expressed his support for RAMSI was former SI Prime Minister Alan Kemakeza who functioned as Canberra’s puppet between July 2003 and the 2006 SI general elections. During this period, Kemakeza was effectively nothing more than a figurehead for the nominally sovereign SI Government, with the Australian Government maintaining effective control over SI Government policy.

When Manasseh Sogavare was elected as SI Prime Minister in May 2006, he attempted to wrest from RAMSI some SI Government control over the country’s public finances. These attempts were met with an outraged response from Canberra, followed by a confrontational campaign orchestrated by Canberra for regime change in the SI. Canberra’s campaign for regime change in the SI included an Australian police-led raid on Sogavare’s office, the arrest of several of his ministers on bogus charges and a vicious witch-hunt against his Government’s Attorney General, Julian Moti, on politically motivated statutory rape charges. The destabilisation drive culminated in a parliamentary no-confidence vote in December 2007 and the installation of a new pro-Australian government headed by Derek Sikua.

What is absolutely certain is that Australian officials, including intelligence operatives, have been and remain deeply involved in the SI election process, seeking among other things to ensure that any SI Government is subservient to Canberra’s whim.

Claim for compensation

Snyder Rini was SI Prime Minister from April to May 2006. He was elected as Prime Minister by the SI Parliament on 18 April 2006, an event which caused wide spread unrest in Honiara with many locals claiming that the election was fixed and that Rini’s Government would be unduly influenced by local Chinese businessmen and by either or both of the mainland Chinese and the Republic of China (Taiwan) Governments. Originally to be sworn in as Prime Minister on 19 April, this was delayed until the following day because of the riots and was conducted without prior notice to avoid triggering further unrest. In response to the unrest, extra Australian, New Zealand and Fijian police and defence personnel were dispatched as part of RAMSI in an attempt to enable Rini’s Government to regain control.

On 26 April, Rini resigned immediately before facing a motion of no confidence in Parliament. The news of his resignation caused celebrations in the streets of Honiara. His successor, Manasseh Sogavare, took office on 4 May 2006, defeating Rini’s Deputy Prime Minister, Fred Fono, in the vote to replace Rini.

Fono, as Leader of the Opposition, named Rini as Shadow Minister of National Planning and Aid Coordination. After Sogavare was defeated in a no-confidence vote in December 2007, Rini became Minister for Finance and Treasury under Prime Minister Derek Sikua.

In response to the unrest which followed Rini’s election as Prime Minister, RAMSI police arrested and charged two members of the SI Parliament, Charles Dausabea and Nelson Ne’e, both of whom stood trial on charges alleging that they orchestrated the riots in April 2006. Former SI Foreign Minister Alex Bartlett (who had a large number of charges against him) also stood trial.

During the trial of Bartlett, Dausabea and Ne’e, the SI High Court heard about written agreements that the then SI Police Commissioner, Shane Castles (an AFP officer on secondment to the SI Police), made with two crucial prosecution witnesses. Pursuant to these agreements the witnesses received significant financial and other assistance on the condition they kept the agreements secret and gave evidence in Court only in accordance with their police statements. The agreements were in a form that violated judicial rulings on such matters and attempts to keep them secret clearly violated SI law governing disclosure of relevant information to defence lawyers.

Such a bungle in a high profile case in Australia would almost certainly have seen pressure on the Commissioner to resign for signing such damaging and foolish agreements. It was only following the issue of subpoenas that such payments came to light and there was reluctance on the part of the police to disclose. Again, the prosecution relied upon the worst type of witness (those who had a significant interest in giving evidence. They had much to gain by giving evidence – such as reduced sentence or financial reward). The three accused were acquitted of all charges. The further significance of the matter was the interest taken by Mick Keelty, Commissioner of the AFP, immediately following the riots and commenting upon the accused Charles Dausabea. Such comments appeared at the time to be in contravention of the recognized need for restraint on police and prosecutors commenting on the guilt or otherwise of individuals who are to face court. All three had spent significant periods on remand in highly political circumstances. The whole episode was in the context of the Julian Moti dispute waged between Australia and the Sogavare Government. This context included Australian Foreign Minister Downer writing an open letter to the people of the Solomons in which he attacked Mr Ne’e and Mr Dausabea.

The aforementioned agreements formed the basis of the subsequent civil action brought by Bartlett, Dausabea and Ne’e against the Commissioner of Police and the Director of Public Prosecutions, claiming that their prosecution was malicious and vexatious, arguing they were entitled to be compensated for wrongful arrest and detention as well as for defamation of character, reputation and standing.

The AFP’s extra-territorial practice of witness bribery and corruption

The actions of the AFP in paying witnesses in the Bartlett, Dausabea and Ne’e cases should not be viewed in isolation. They need to be viewed within the context of what appears to the standard extra-territorial modus operandi of the AFP.

As regular readers of Blak and Black will be aware, Julian Moti, the man at the centre of the dispute waged between Australia and the Sogavare Government, is currently awaiting a decision from the High Court of Australia (HCA) on the outcome of his appeal over his illegal rendition to Australia by the AFP in December 2007. The first ground on which Moti was granted special leave by the HCA to appeal the Queensland Court of Appeal decision to overturn the permanent stay granted by Justice Debra Mullins of the Queensland Supreme Court is the issue of whether the financial support given to prosecution witnesses by the AFP amounts to an abuse of process.

The relevant legislation concerning the taking of evidence from people outside of Australia in child sex offence allegations is found in Division 272 of the Criminal Code Act 1995 (Cth). Subdivision D deals with video link evidence. This subdivision reads in part, “In a proceeding for an offence against this Division, the court may, on application by a party to the proceeding, direct that a witness give evidence by video link.” Subdivision 272.25 empowers the court to “… make such orders as are just for payment of expenses incurred in connection with giving evidence under a direction by the court under this Subdivision.”

It can only be assumed that the Australian Parliament, under advice from relevant agencies including, one would expect, the AFP, has given appropriate consideration on how to deal with overseas witnesses. To this end, express provision has been made in legislation to provide for a cheap and reliable means of taking evidence from overseas witnesses via video link. The legislature further empowered the court to determine what would constitute just “payment of expenses incurred in connection with giving evidence under a direction by the court”. This being the case, on what basis does the AFP justify the payment of large sums of Australian taxpayer money to overseas witnesses to “enable them to testify in Australian criminal proceedings”?

The underlying indictment against Moti was permanently stayed by Justice Debra Mullins, who found that the financial support given to prosecution witnesses by the AFP was an abuse of process. A similar finding was made by the SI High Court in the Bartlett, Dausabea and Ne’e cases. The issue has so far been glossed over by the courts in the Fred Martens matter.

One of the issues in allowing the AFP to make substantial cash payments to ‘support’ overseas witnesses while they are waiting to give evidence in Australian criminal proceedings is that the system is open to abuse. A situation which is amply born out in the Bartlett, Dausabea and Ne’e cases where the SI High Court found that the then SI Police Commissioner, Shane Castles (an AFP officer on secondment to the SI Police), made inappropriate financial arrangements with two crucial prosecution witnesses. Under these agreements the witnesses received significant financial and other assistance on the condition they kept the agreements secret and gave evidence in Court only in accordance with their police statements. It is the writer’s understanding that similar statements have been made by crucial prosecution witnesses in the now discredited Fred Martens prosecution.

RAMSI sanctioned corruption

In a recent article in the Solomon Star, Canberra-based lawyer Stephen Lawrence, who as a SI public defender represented a number of people pursued by RAMSI, is reported as saying that:

“The ‘tension trials’ have been shameful and a comprehensive failure. Would RAMSI be quiet on convictions if they had good numbers to trumpet? Rather than objective notions of the rule of law, RAMSI’s criminal justice response became an attempt to achieve a form of political cleansing of those deemed to be at odds with Australia’s national interests. The rhetoric that Australia intervened to end the conflict is incorrect. The Australians came at least three years after the peak of violence when it became politically opportune in the broader context of a `war on terror’. Australia feared having a failed state on its doorstep, potentially leading to terrorist infiltration, refugee flows and transnational crime, as well as possible interference by a foreign power. A specific case of AFP bungling came to light on August 19 [2010], when Solomon Islands High Court judge David Cameron threw out evidence because AFP officers investigating a murder had “forgot” basic procedures, including reading the suspect their rights.”

While former SI public solicitor Ken Averre writing in State Society and Society in Melanesia Working Paper No. 2008/3 has commented that:

“RAMSI have not been subjected to any real investigative scrutiny and have largely relied on a few journalists and civil society organisations, interested in police accountability, to avoid accountability or scrutiny. Any in-depth analysis or feedback is largely paid for by RAMSI themselves and AusAID send in “Technical Advisory Groups” to assess project/programme effectiveness but reserve a right of veto –presumably to ensure they do not end up looking too bad out of it. The question in the case of Solomon Islands would be what would be the reaction in Australia if a series of similarly high profile cases led to acquittals, following police bungles and impropriety? Resignations would be demanded. What have the AFP/RAMSI learned from these experiences? It has certainly not been to engage in a meaningful analysis of the problems and to consult with defence lawyers as to where the problems lie. It has been more to close ranks and become more reluctant in areas such as disclosure etc.”

Sadly the Bartlett, Dausabea and Ne’e scandals are just the tip of the iceberg. When justice is finally achieved for all of the victims of AFP corruption, the real losers are going to be Australia’s credibility on the world stage and the Australian taxpayer who is going to have to ‘foot’ the compensation bill for all those who have suffered the indignity of being fitted-up by one of the world’s so called elite police services.