An ‘Ethics Commissioner’ without ethics: welcome to Australia

Yesterday, Thursday I received a phone call from Captain Fred Martens, the man who spent a 1,000 days in jail, having been wrongly convicted of an offence under Australia’s Child Sex Tourism Laws. His conviction was later quashed by the Queensland Court of Appeal (“QCA”). At all times Captain Martens has maintained his innocence. Captain Martens has further maintained that he was a victim of a corrupt Australian Federal Police (“AFP”) prosecution. Indeed, on 20 November, 2007 the following facsimile was sent from Christopher Rose of Cameron Price Lawyers to Andrew Lloyd, Commonwealth Director of Public Prosecutions:

After all, we have been asserting to you for a very long time, this and the [Daphney] Musa matter are corrupt prosecutions, and surely the Commonwealth [of Australia] would not wish to maintain a conviction which resulted…

The reason for Captain Martens somewhat irate, not to mention enraged and outraged, phone call to me was to voice his disgust at a letter he had just received from Australia’s very own Department of Disinformation also known as the Australian Commission for Law Enforcement Integrity(“ACLEI”).

The letter from ACLEI that so outraged Captain Martens was dated 29 February, 2012. This was coincidently the very day that submission to the ACLEI initiated inquiry into the integrity of overseas Commonwealth law enforcement operations closed. The ACLEI letter to Captain Martens was signed by Stephen Hayward, Executive Director and concluded with:

I am satisfied that an investigation [into the AFP] would not be warranted.

Captain Marten’s outrage centred on charges brought against him by the AFP in 2004. Specifically those charges were:

That between 10 September 2001 and 16 September 2001, in Port Moresby, Papua New Guinea, Frederick Arthur MARTENS, did engage in sexual intercourse with a person who was under 16 years of age, namely [GN], contrary to section 50BA of the Crimes Act 1914, and;

That on a date in mid to late 1996, in Port Moresby, Papua New Guinea, Frederick Arthur MARTENS, did engage in sexual intercourse with a person who was under 16 years of age, namely [DM], contrary to section 50BA of the Crimes Act 1914.

Regular readers of Blak and Black might recall that I have discussed the circumstances surrounding these charges on numerous occasions, most recently in a post Martens, Moti and the ‘rule of law’ in Australia. Of concern to Captain Martens, the writer, and many others in Australia and elsewhere is the fact that not long after these charges were brought against Captain Martens one of his alleged victims “DM” recanted the evidence she had previously given to the AFP.

In an affidavit dated 19 November, 2007 Miss Daphney Musa [DM] stated that:

The next day Tania [AFP Agent Tania Anne Stokes] came back, mum had a talk with me. She schooled me about what I had to say to Tania. She said you have to tell Tania the days on which you had sex with Fred. I said to my mum it’s not true I can’t do that. She told me I had to. She said just go and give them your statement. I was very frightened.

Everything I said too Tania about having sex with Fred was not true. I am sorry that I said things which were not true and now I want to tell the truth.

This recantation by Miss Musa, which incidentally lends credence to solicitor Christopher Rose’s assertion that this [the GN matter] and the [Daphney] Musa matter are corrupt prosecutions, so irritated the AFP that they commenced a campaign of harassment against DM. So intense did the AFP’s campaign of harassment against DM become that she was forced to turn to lawyers for help against her harassers (the AFP). The following is an e-mail sent from Captain Martens PNG based lawyers to his Australian lawyers in late 2007:

Dear Peter,

I have not been able to telephone, you can’t get out of the country at the moment. Rose is coming to see me at 2:00pm. AFP have taken Daphney again to the High Commission today. I really don’t have time to ask around other lawyers and they are going to be reluctant anyway. But you need to get on this urgently. The AFP behaviour is disgraceful, they are trying to stand over Daphney [Musa]. (my emphasis)

Regards,

Brian Andrew [Associate Young & Williams Lawyers] 12 December, 2007

Despite all the harassment, intimidation and corruption alleged against the AFP by a number of people including lawyers, Stephen Hayward Executive Director ACLEI has concluded that:

I am satisfied that an investigation [into the AFP] would not be warranted.

During the course of my conversation with Captain Martens concerning the aforementioned letter from ACLEI, Captain Martens made the following observation:

“What’s the point in having an ‘Ethics Commissioner’ if he hasn’t got any ethics?”

After concluding my conversation with a slightly placated, but nonetheless still outraged Captain Martens I retired to Pablo Casals interpretation of Bach. Bach unlike Australia’s ‘Ethics Commissioner’ expressed all the feelings of the human soul. While listening to St. Matthew Passion, possibly the most sublime masterpiece in all of music, and sipping a glass of Duplais Verte Art Edition Absinthe, I happened upon a copy of Sedgwick’s Practical Ethics and thought to myself therein lays the answer to the Captain’s conundrum: how you can have an ‘Ethics Commissioner’ without him having any ethics! ACELI clearly takes a utilitarian view of its role in the world of ‘just-us’ and law enforcement.

In “A Non-Utilitarian Approach to Punishment”,[1] written by H J McCloskey in the racially charged climate of the United States in 1965, McCloskey asks us to consider the following case:

Suppose a utilitarian were visiting an area in which there was racial strife, and that, during his visit, a Negro rapes a white woman, and that race riots occur as a result of the crime….Suppose that our utilitarian is in the area of the crime when it is committed such that his testimony would bring about the conviction of [whomever he accuses]. If he knows that a quick arrest will stop the riots and lynchings, surely, as a utilitarian, he must conclude that he has a duty to bear false witness in order to bring about the punishment of an innocent person.

Such an accusation would have bad consequences; the innocent man would be convicted, but there would be enough good consequences to outweigh them; the riots and lynchings would be stopped. The best outcome would be achieved by lying; therefore, according to Utilitarianism, lying would be the thing to do.

The standard Utilitarian response to this argument demands that we look more closely at the example. Once we do this, it supposedly becomes clear that the Utilitarian is not committed to performing this clearly wrong act. In his reply to McCloskey’s argument, T.L.S. Sprigge[2] contended that if faced with the decision presented in McCloskey’s example, a “sensible utilitarian” will attach a great deal of weight to the near-certain fact that framing an innocent man would produce a great deal of misery for that man and his family. This consideration would receive such weight because “the prediction of misery… rests on well confirmed generalizations”. Furthermore, the sensible utilitarian will not attach much weight to the possibility that framing the man would stop the riots. This is because this prediction “will be based on a hunch about the character of the riots”. Since well confirmed generalizations are more reliable than hunches, happiness is most likely to be maximized when individuals give the vast majority of the weight to such well confirmed generalizations when making moral decisions. Therefore, since the relevant well confirmed generalization tells us that at least a few people (the innocent man and his family) would be made miserable by the false testimony, the utilitarian would give much weight to this consideration and choose not to bear false witness against an innocent man.

All very well and good, but where does this leave Captain Martens? As a result of my dealings with Captain Martens I have formed an opinion of him as being a hard working “straight shooter” with little or no time for “fancy book learnin’”. For him a bald faced lie is a bald faced lie and no amount of philosophical waffle will change that. I’m unaware if the ‘Ethics Commissioner’ that Captain Martens is so enraged about has ever heard or read Sedgwick, McCloskey or Sprigge. What I am sure of is that there is no room in a modern justice, as distinct from a ‘just-us’ system, for ‘scapegoating’. In reality what Captain Martens is so outraged about is that ACLEI, to his eyes and mine, is attempting to argue against the ‘scapegoating objection’ to Utilitarianism.

Surely it is the very definition of injustice to frame an innocent person; yet in Australia in very recent times we have experienced two controversial examples of just such injustices. Both involve the AFP and both involve the AFP operating in an extra-territorial capacity and both appear to have at their core a utilitarian concept of what is ‘good’ for the majority versus what is ‘bad’ for the majority. The issue I’m having trouble identifying is whether the ‘good’ we are talking about is the ‘good’ for the people of Australia, or the ‘good’ for the people of the Asia/Pacific region; or is it simply for the ‘good’ for the AFP?

Clearly there is a need for a global system of justice that is enforced or at least enforceable. Clearly this global need is best met by those countries with the resources to extend their ‘policing’ reach beyond their own borders. There is unquestionably a need to bring child sex tourists, terrorists and those involved in organised crime to justice. Can this need for a globally enforceable system of crime prevention and detection ever justify framing innocent people for the sole purpose of justifying your own existence, no matter how dangerous the evils that you believe your existence provides a bulwark against? The answer must be an unambiguous NO!

Can it ever be in the public good for a man to be forced, by a corrupt or incompetent legal system, to spend 1,000 days in jail for a crime he did not commit? While the charge relating to DM did not go to trial, because she withdrew her statement(s) prior to trial, the charge relating to GN did go to trial, resulting in Captain Marten’s conviction and incarceration.

At all times between his arrest and exoneration, Captain Martens had maintained that the production of certain flight records would cast doubt on the credibility of GN’s evidence and consequently on the strength of the prosecution’s case. Indeed it was the production of these flight records as ‘new’ evidence at Captain Martens appeal that led to his conviction in relation to GN being quashed. In quashing his conviction, the QCA observed that:

The records have always existed and have now been produced. It is a poor reflection upon the two organisations [the AFP and the Commonwealth Department of Public Prosecutions [(“CDPP”)] that one [AFP] should have failed to find them, and denied their existence, and the other [CDPP] object to their use in the reference on the ground that the petitioner should have obtained them earlier…

Captain Marten’s complaint to ACLEI was in part about the non-production of the aforementioned records by the AFP at the time of his criminal trial. Had they been produced then it is unlikely that Martens would have been convicted and sentenced to a lengthy term of imprisonment, given that their weight as evidence at his appeal was sufficient for the QCA to quash his conviction. Yet ACLEI Executive Director Stephen Haywood concluded that:

I am satisfied that an investigation [into the AFP] would not be warranted.

Clearly those in positions of influence in ACLEI believe that there are enough good consequences in not investigating the AFP, so as to outweigh giving justice to Captain Martens. However, if we were to take as our starting point Sprigge’s response, McCloskey’s aforementioned example we would have to conclude that a good utilitarian police chief would in practice be strongly opposed to punishing the innocent. Not so the AFP, or at least not so in Captain Martens case! What was at issue in the Martens case, for the AFP was a treaty with PNG, a treaty that would allow the AFP to have a presence on the ground there. From Australia’s perspective an AFP presence on the ground in PNG was necessary, or at least desirable, in the wake of the Bali bombings and fears about failed Pacific states becoming sanctuaries for organised crime and terrorists. So from a strict Utilitarian perception the incarceration of one innocent man, irrespective of how much misery that incarceration might cause for that man and his family, was justified for the greater good!

However, it wasn’t only PNG that Australia was concerned about. The Solomon Islands, (“SI”) at least to a politicised and emasculated AFP and Australian Public Service, was also a concern. To address this concern the emasculated public servants in Canberra happened upon a plan. “Let’s invade the SI under the guise of a one-sided treaty, using the AFP as the invasion spearhead”. Not a bad plan, but for one small obstacle, Julian Moti QC. Moti had built a career on challenging Australian racism and neo-colonialism in the Pacific. As the SI Attorney-General he presented an insurmountable obstacle. As a wanted paedophile and fugitive from Australian justice, that obstacle vanished. So Australia’s emasculated public servants in Canberra came up with a brilliant utilitarian solution, “let’s dredge up some long forgotten charges, relating to an incident that Moti had already been cleared of in Vanuatu, and lay fresh charges in Australia”. Hey presto, problem solved!

Or so it seemed. Well, to be fair, the AFP and their emasculated cohorts in Canberra did manage to have Moti dismissed from his position as the SI Attorney-General; the AFP did manage to kidnap him and bring him to Australia to stand trial and to give credit where credit is due, the AFP and CDPP even managed to get Moti into court once or twice. But to the everlasting chagrin of our heroes, the AFP and CDPP, the High Court of Australia’s magic tricks are more powerful than those of the AFP, the CDPP and their emasculated cohorts in Canberra. The High Court ruled that because of the way the AFP had conspired to return Moti to Australia against his will, they were not allowed to continue with their prosecution of him.

As in Martens case, the AFP in Moti’s case appeared willing to sacrifice an innocent man to the greater good. But the question as to whose good we are talking about still remains unanswered. My best guess and one that I have discussed previously in my post AFP corruption and their per diem, is that the utilitarian good we are talking about is the AFP’s per diem. Sacrificing Martens gave the AFP a foothold in PNG, at least until the PNG courts ruled their presence under the terms of the Australian dictated treaty unconstitutional. Bye, bye per diem! Not so the SI, lacking the population and the resources of PNG, the SI post-Moti have been lumbered with an Australian led and funded occupation force, a force whose personnel are more concerned about their per diem than with upholding justice.

Well Captain, I hope my thoughts on how an ‘Ethics Commissioner’ can have no ethics, has provided you with some, if little, illumination.