Corruption and accountability: the AFP in the Asia/Pacific region

The criminal justice system consists of three main parts: (1) Legislative (create laws); (2) adjudication (courts); and (3) corrections (prisons, probation, parole, fines, community service). In a criminal justice system, these distinct agencies operate together both under the rule of law and as the principal means of maintaining the rule of law within society.

The first contact an alleged offender usually has with the criminal justice system is the police (or law enforcement) who investigate a suspected wrong-doing and make an arrest or issue a summons to appear at a given date at a particular court. The courts serve as the venue where disputes are then settled and justice is administered. If an alleged offender is found guilty by the courts, the offender is then handed over to the correctional authorities who have the responsibility to administer whatever punishment the court has mandated.

Punishment always involves a change in a person’s legal status, a change that is, in his/her legal relations. Obviously not every change is punishment. One changes one’s legal relations by marrying, but only as a joke is it called legal punishment. However, some changes in legal relations are clearly instances of punishment. Changes to one’s rights resulting from the commission of a crime, done properly and by the proper authorities is legal punishment. To deprive a citizen of his/her right is to punish him/her; (s)he is being prevented from exercising all the rights of a citizen. To require a citizen to pay a fine is to create an obligation a citizen not fined does not have. To incarcerate someone is to punish him/her; (s)he is being deprived of the right to determine for his/her self where (s)he will sleep, or where (s)he will walk. What particular forms of punishment a legal system adopts is a matter to be determined by utilitarian considerations, by a society’s commitment to some rights over others, by a society’s concepts of morality. In our system we generally punish, a black if not a white thief, by depriving him/her of his/her rights regarding his/her freedom of movement. In others systems a thief may be punished by creating an obligation for him/her to pay the person robbed. In yet others a thief may be punished by being deprived of the offending limb. But none of these variations affect the point that legal punishment involves changes in a person’s legal relations.

The status of this point needs to be made clear. I am not denying that what we call legal punishment in fact often involves pain. All of us are cognizant of how much pain is involved in incarceration, though ‘pain’ and its variants hardly seem of sufficient diversity to cover all that can go wrong, such as crowded jails, loss of privacy, loss of a sense of dignity, knifings, fear of bodily harm – rape, assault, etc… It would be foolish to deny that these occur. I want to emphasize that they do occur, for my claim is not that they do not occur, but that when they do occur they cannot be legal punishment. This is not to make a moral claim. I am not claiming that they ought not to occur, though that is true too. I am making an ontological point, one about the status of legal entities and about what is appropriately ascribed to them.

It is the status of people as legal entities and the role the criminal justice system has in altering that status that is of concern. Once convicted an individual loses some, if not all, of the rights normally enjoyed by other citizens. Even if not incarcerated, those rights are eroded. They are eroded in terms of job prospects, which results in poverty, loss of human dignity, despair and often suicide, a harsh penalty for what is frequently a trivial crime. Often these erosions of self-worth lead to recidivism, an outcome without benefits to anyone. Theoretically the checks and balances (legislature, police and courts) within the criminal justice are meant to ensure just outcomes for all, including attempts at rehabilitation for the offender. But, what if one of the checks within the system becomes corrupted? Obviously, any punishments flowing from a tainted prosecution cannot be legal punishments, even though those punishments might be dispensed by a court, which in and of itself is not corrupt but might be corrupted as a result of a corrupt prosecution brought about by corrupt police or a corrupt prosecution service. What if while incarcerated an innocent victim of a corrupt prosecution is raped or murdered or commits suicide? What then of a society’s morals and ethics?

All too often I’m told by those alleging police malfeasance that a magistrate or a judge will say words to the effect of, “I’ll always take the word of a police officer over a civilian.” Jolly good for the magistrate or judge, but what if the allegations being levelled against the police are true?

Captain Fred Martens spent 1,000 days in jail after being wrongly convicted of having had sex with a 14-year-old girl in Papua New Guinea in 2001. The conviction was overturned after two appeals when his family obtained official documentation which proved he was in Australia and not Papua New Guinea at the time of the alleged offences.

After his release, Captain Martens launched a $45 million wrongful imprisonment claim against the Australian Federal Government, which was thrown out on a legal technicality by Justice Stanley Jones of the Queensland Supreme Court, having been vigorously opposed by those responsible for his imprisonment.

Justice Jones ruled that Captain Martens claim for $45 million should have been filed under Queensland legislation rather than federal law. He said the claim should have been filed under Queensland’s Personal Injury Proceedings Act (“PIPA”) and because Mr Martens’ legal team had not followed the procedures required by that legislation, it must be dismissed. He also ordered Mr Martens, of north Queensland, to pay the legal costs of the government, the same government that had wrongfully imprisoned him!

Captain Martens then went to the Queensland Court of Appeal (“QCA”) which unanimously allowed his appeal. In setting aside Justice Jones’s order, the QCA struck out the original statement of claim but allowed Captain Martens until April 13, 2012 to serve a further statement of claim on the Australian Federal Government.

Justice Margaret Wilson said Justice Jones had been correct in finding Mr Martens’ claim for personal injury should have been filed under state law. “The difficulties with the pleadings are such that it is not clear whether he is seeking to pursue other claims as well,” she said. Justice Wilson went on to say that Mr Martens should have an opportunity to replead any claim that was not a claim for personal injuries.

So much for the honesty and integrity of the Australian criminal and civil justice system, but what of the corruption and/or incompetence that caused Captain Martens imprisonment in the first place? Captain Martens accuses an Australian Federal Police (“AFP”) agent of perjury, trying to cover up problems with the investigation, perverting the course of justice and malicious prosecution. The officer had tried to ”amass evidence to bolster a case against [Captain Martens] regardless of its truth or falsity”, ”deliberately ignored obvious inconsistencies” in the girl’s statements, and agreed with PNG officers to conceal various documents, the damages claim says.

Areas of concern with respect to the AFP’s investigation centre on certain comments made in official statements by AFP agents that appear to be false, or at least not corroborated by other evidence.

Of crucial importance to Martens defence was the date on which an application for a passport was made by the alleged victim “GN”. Captain Martens defence team had asked the AFP on numerous occasions to locate a copy of GN’s passport application in Papua New Guinea. To assist in their enquiries the AFP turned to Detective Inspector Moses Ibsagi of the Royal Papua New Guinea Constabulary.

With respect to the enquiries Detective Inspector Moses Ibsagi made concerning the whereabouts of GN’s passport application, on 20 July 2005 he made a statement to the AFP which was witnessed by AFP agent Leisa James. In this statement Detective Inspector Moses Ibsagi says:

I concluded checks with PNG Immigration Division to confirm the issuing of a PNG passport to the alleged victim, [GN] The check was with assistance from Federal Agents Terry and [Leisa] James. F/A James located the passport application in a storage area and retained possession of this form. (My emphasis)

No problems here; Inspector Ibsagi carried out the enquiries he was asked to carry out and achieved the desired result; he located the passport application of GN. Now let’s consider Inspector Ibsagi’s statement in light of an official statement made by AFP agent Tania Ann Stokes on 27 April, 2005, concerning the passport application of GN:

On 21 April 2005, Inspector Moses Ibsagi from the Royal Papua New Guinea Constabulary transnational Crime Team advised me of the following results:

The Director of Operations from the Papua New Guinea Immigration Department advised me most of their records were stolen from their office in 2004 and as such there is no record of a passport application in the name of GN.

Inspector Ibsagi in his own statement witnessed by AFP agent Leisa James confirms that the same Leisa James located the passport application in a storage area and retained possession of this form. Yet, AFP agent Tania Ann Stokes claims that Inspector Ibsagi advised her that the records were stolen from the PNG Department of Immigration in 2004 and as such there is no record of a passport application in the name of GN. I’m finding it somewhat difficult to reconcile these conflicting statements! But the problems with the AFP statements don’t stop here.

One further piece of evidence should be mentioned. GN swore an affidavit on 8 September 2009 during Captain Martens acquittal hearing, to which she annexed the record of attendance for pupils in grade 7B of the Morehead Primary School for the year 2001, the year in which the sexual assault of her by Captain Martens is alleged to have occurred. The parties did not agree upon whether the record of attendance should be admitted into evidence. Counsel for the petitioner (Captain Martens) objected to it. It was not, of course, properly proved. GN’s identification of the records was hearsay. They were not proved to be an official record of the school or the Department of Education. The teacher, who remained unidentified, had not authenticated the records.

While the authenticity of the documents is relevant, what is more relevant and concerning is that on 19 August 2005 Detective Inspector Moses Ibsagi made a further statement to the AFP in which he made the following comment:

I also made enquiries at the Morehead School, to confirm the presence of GN at school during 2001 and to confirm that her father, MN was a teacher at that school during that period.

Result: I have been informed that these records no longer exist. It is a remote area and they do not keep records.

In 2005 the records for the 2001 school year, at least according to Detective Inspector Moses Ibsagi, had ceased to exist, yet the Commonwealth Department of Public Prosecutions (“CDPP”) tendered into evidence during Captain Martens acquittal proceedings documents that purported to be the very documents that Detective Inspector Moses Ibsagi had previously sworn did not exist as at 19 August 2005! The AFP and the CDPP call this justice!

At the bottom of each of the AFP statements I have quoted from is the following cautionary note:

I make it [the statement] knowing that, if it were to be admitted as evidence, I may be liable to prosecution for stating in it anything that I know to be false.

The statements of Detective Inspector Moses Ibsagi, AFP agent Tania Ann Stokes and GN can’t be reconciled without conceding that at least two of those statements are false. In terms of who made the false statements, I’ll let the evidence speak for itself. When assessing the evidence, it is worth remembering that those false statements, at least in part, caused an innocent man to spend nearly 1,000 days in jail for a crime he did not commit. The punishment he received for the crime he did not commit cannot be seen as being legal punishment. It falls into the same category of illegal punishments as would a knifing an assault or a rape if inflicted on even a guilty offender while serving a legal punishment of incarceration.

It’s time police and public prosecutors were held accountable for crimes they commit against citizen and non-citizen alike in furtherance of their personal objectives. I contend that the interests of the people of Papua New Guinea would be best served in the absence of an AFP presence on their soil. For the record, Blak and Black has made enquiries with the Boroko CID, who have confirmed that the PNG Department of Immigration made no complaint of a break, enter and steal on their premises in the years 2003 to 2005.

For details on another example of AFP misconduct in the Pacific I refer readers to the page on Blak and Black titled Moti 666 Documents.