Fred Martens and the AFP – the limits of the rule of law

…that in America THE LAW IS KING. For as in absolute governments the King is law, so in free countries the law ought to be King; and there ought to be no other.

Thomas Paine, 1776

It seems that at least one of the people I mentioned in my post A lie by any other name does not make a truth, unless you’re the AFP has been affronted by my utterings. So great was their alleged affront at my utterings that I received an e-mail from their legal representatives threatening me with all manner of unpleasantries unless I took the post down and issued a formal retraction. I intend to do neither.

The reason I intend to do neither is that all the material published by me on Blak and Black is truthful and verifiable. More importantly, nothing will be published by me on Blak and Black unless I’m sure of the source and veracity of the material. Further, even if the source material is truthful and verifiable, I will not publish it unless it serves a public interest. If there is evidence which supports or tends to support an allegation that either or both the Australian Federal Police (“AFP”) and/or the Office of the Commonwealth Director of Public Prosecutions (“CDPP”) has tampered with, manipulated or otherwise blended evidence or facts to produce an illusion of criminality where no criminality existed, then it is in the public interest for that material to be put into the public domain.

To remove any doubt as to the accuracy or otherwise of the material I cited in A lie by any other name does not make a truth, unless you’re the AFP I have uploaded copies of all the documents I relied on in writing that post. I invite all readers of Blak and Black to view the source material and to form their own conclusions. Further, I have published a more detailed set of documents relating to this issue under the tab titled Martens claim.

Musa timeline

For the edification of those in the AFP, CDPP and elsewhere in the Canberra beaurocracy I offer the following timeline of events which clearly shows the transformation of Daphney Musa (aka Defney Musa) date of birth 23 September, 1981 to Daphney Sulama (Sulama being her father’s surname) date of birth 23 September, 1983. Before moving onto the timeline, I believe it’s important that readers understand the significance of the change in birth year.

In both of the statements Daphney Musa swore before AFP officer 10695 Tania Stokes she stated that her year of birth was 1981. She further stated that the first act of sexual intercourse between her and Fred Martens occurred on his boat the M.V. Bukap in Port Moresby. Musa also stated that prior to the first act of sexual intercourse between her and Martens she was a virgin. As it would generally be expected that most people would recall the occasion of their loss of virginity, the detail about the M.V. Bukap had to be made to fit the provable facts of its whereabouts on the occasion of Musa’s first alleged act of sexual intercourse with Martens, and the loss of her virginity.

The age of consent in PNG is sixteen, therefore, if the first alleged act of sexual intercourse between Martens and Musa occurred after 23 September 1997 there would be no crime, assuming Musa’s birthdate to be 23 September, 1981. The problem both the AFP and the CDPP had in pursuing the Musa allegation, an allegation that Martens was charged with by the AFP in 2004, was that between 26 July 1994, and 2 December 1997 the M.V. Bukap was neither in Martens’ possession, nor was it under his control. The M.V. Bukap had in fact been stolen from Lae at Voco Point on 26 July 1994 and was not recovered until 2 December, 1997 by the PNG police, meaning that either Ms Musa’s recollection of the timing of the events she described was wrong or the events themselves did not occur.

If the first act of sexual intercourse between Martens and Musa could not have occurred until after 2 December, 1997 there was no crime, assuming Musa’s birthdate to be 23 September, 1981. If however her birthdate were 23 September 1983, she would have only been fifteen in December 1997, therefore if an act of sexual intercourse actually did occur between Martens and Musa, an allegation which Martens categorically denies, in December 1997, a crime would have been committed by Martens.

1. 14 May, 1999 Ms Musa was issued with a Papua New Guinea (“PNG”) passport bearing the serial number 084150. This passport had an expiry date of 14 May, 2004. This document shows Ms Musa’s birth date as being 23 September, 1981.
2. 14 August 2000, Daphney Musa gave birth to a daughter at The Private Hospital Port Moresby, NCD. The father of this child is documented on the PNG Certificate of Entry of Birth as Tom Joseph Long, an Australian citizen.
3. The aforementioned daughter of Musa and Long was granted Australian citizenship by descent on 6 September, 2000.
4. 4.     On 5 August 2004, the same Daphney Musa who gave birth on 14 August, 2000 in Port Moresby, gave a statement to AFP officer 10695 Tania Stokes in which she stated: My full name is Daphney MUSA. My date of birth is 23 September 1981.
5. On 15 October 2004, the same Daphney Musa swore another statement before AFP officer Tania Stokes in which she stated that: On 23 September 1995, I turned fourteen years old, making her birth date 23 September, 1981.
6. The parents of the same Daphney Musa who is mentioned in points 1 to 5 officially registered her birth with the PNG Register General in Port Moresby on 18 October, 2004. The parents names are listed as Galakiyato Musa and Richard Ibali Sulama, with the Register-General’s Office rubber stamp noting this registration on 20 October, 2004. By this time Daphney Musa was either 21 or 23 years of age depending on which birth year we take as being correct. With the registration of her birth in 2004 Daphney Musa became Daphney Sulama with an official year of birth that could accommodate all of the circumstances surrounding the now established arrival the M.V. Bukap in Port Moresby. Despite this, Daphney continued to declare statements using the name Musa, not Sulama in later in 2004, 2007 and 2012.

The implications for the rule of law

The AFP have had in their possession since at least 25 August, 2004 (the day after the AFP arrested Martens on child sex tourism allegations) Daphney Musa’s 1999 passport application which shows her date of birth as being 23 September, 1981. On 25 August, 2004 Musa’s entire 1999 passport application was faxed from an AFP fax in Port Moresby. The transmitting fax number on the header is shown as 325 2116. This document is in Martens court file. On the advice of Martens, this document was handed to his then Barrister the late Michael Sumner-Potts by the CDPP three days before his criminal trial on child sex tourism charges, out of sequence and mixed in with about a thousand other pages. This is what the CDPP obviously believes is meant by adhering to the ‘rule of law’.

For the law to be King, to use Thomas Paine’s metaphor, it must be accessible and so far as possible intelligible, clear and predictable. This seems obvious; if everyone is bound by the law they must be able without undue difficulty to find out what it is, even if that means taking advice (as it usually will) and the answer when given should be sufficiently clear that a course of action can be based on it. There are English and Australian authority to this effect and the European Court of Human Rights has also put the point very explicitly:

… the law must be adequately accessible: the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case … a norm cannot be regarded as a ‘law’ unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail.

The Sunday Times -v- The United Kingdom (No 1) – (1979) 2 EHRR 245

The point is not trivial. The questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion, especially if that discretion is being exercised not by delegation, but by police officers and public prosecutors more concerned about career advancement and pandering to the whims of their political masters than adhering to the rules of the King. In contemporary Australia as in the America of Thomas Paine, that King is the law; nobody is above the law, not politician, not police officer, not public prosecutor.

Obviously if the law is King, then in the words of Justice Tom Bingham there can be no discretion as to the facts on which a decision-maker, official or judicial proceeds. An assessment of the facts may of course be necessary and will depend on the effect made by the evidence on the mind of the decision-maker. The assessment made may be correct or it may not, but if the evidence leads the decision-maker to one conclusion he has no discretion to reach another, any more than a historian has a discretion to conclude that King John did not execute Magna Carta at Runnymede in June 1215 when all the evidence shows that he did. Similarly, most so-called discretions depend on the making of a prior judgment which, once made, effectively determines the course to be followed, and leaves no room for choice. Even the least constrained of judicial discretions – that as to the award of costs – is governed by principles and practice.

All very neat and tidy, but it all depends on the integrity of the system. If one opposes the King, is one not a traitor, or rebel or indeed both? Is not treason generally considered to be the most heinous of crimes? If the most trusted servants of the King, in Australia’s case this would include the AFP and CDPP, act without integrity are they not traitors? Manipulation of documents to fit a certain factual scenario in a criminal trial, a manipulation which serves no other purpose than to give an illusion of fact to fiction, is an act without integrity. This act without integrity is an act of rebellion against the King. An act of rebellion that needs to be dealt with using the full force of the King. In such a case the rebels should be tried before the King, according to the King’s law, and subjected to the King’s punishment.

Until the AFP and indeed the CDPP really learn what is meant by the ‘rule of law’ in both spirit and word, is there any room for Australia to play a role in international affairs? The answer to this question must surely be no. Is it acceptable to the people of PNG that the AFP have knowingly used documents in a criminal prosecution in Australia that has its roots in PNG that it (the AFP) knew or ought to have known were false, in order to pretend to the people of PNG that as an organisation it can act impartially? Again, the answer to this question ought to be in the negative. Can an organisation that lacks integrity bring anything of lasting value to a foreign country? The answer must again be no. Perhaps it’s time our brothers and sisters in the Pacific sent a message, loud and clear to the AFP: “Until you learn the meanings of integrity and the ‘rule of law’ you have no place on our soil.” Maybe then, will the rebels against the King be brought to heel.