The Affidavit That Was Never Filed

Three Email Exchanges and a Question of Provenance

Some documents matter less for what they argue than for when they were written. An email composed in September 2013 by a man worried about the conduct of the government’s lawyer cannot be improved with hindsight. It says what it says, it was sent to whom it was sent, and nothing that happened afterwards can reach back and alter it. The three email exchanges examined in this essay are of that kind. The authenticity of none of them has been challenged, and I still hold the original digital files with intact metadata. They formed part of the basis of an application made before Justice Mossop in 2017, in which I asked the Court to strike out an affidavit that the prosecution alleged had been prepared at my direction by my lawyers. The application was refused. The same material and the same argument were then put to a jury, which acquitted me on all sixteen charges.

This essay does not revisit the pre-trial ruling, whose correctness is not the question. Its task is narrower and, I think, more useful: to set out, in order, what the emails actually say, to separate what they establish from what they merely suggest, and to be plain about what they do not prove. The editorial discipline that matters most in a case like this is the distinction between documented fact and inference, and I have tried to mark each inference as one.

The Documents and Their Standing

There are three exchanges. The first is a short correspondence between me and Julian Moti QC on 11 and 13 September 2013, concerning a draft affidavit for a matter I was bringing in the ACT Civil and Administrative Tribunal. The second is an email from me to David Robens, then Practice Leader for Dispute Resolution and Litigation at Chamberlains Law Firm, sent on the morning of 19 September 2013, together with Robens’s reply. The third is a chain from 2016, which begins with an email from Constable Michael Harris of the Australian Federal Police to Chamberlains on 30 January 2016, re-sent on 17 March 2016, passes through the firm to me on 18 March, and ends with my reply the same morning.

That each was tendered without challenge to its authenticity is more than a procedural footnote. It means there is no dispute that these words were written by these people on these dates. The argument, if there is one, can only be about what the words mean and what follows from them. Everything below proceeds on that footing.

September 2013: A Draft, a Distrust and a Plan

On Wednesday 11 September 2013, I wrote to Moti and said he would send a copy of his draft affidavit for the ACAT matter and asked whether Moti would look it over. He added something that, read now, is the seed of everything that follows. He thought he would need to ask his Canberra lawyers to have a barrister review and settle the affidavit before it went any further, and he gave his reason in one blunt sentence: ‘Frankly, I don’t trust Peter Garrisson, the ACT Government Solicitor.’ He tied that distrust to the way Garrisson had handled the grievance against Tu Pham, and the legal action that was to follow, which he described as ‘largely why we’ve ended up here.’

Two features of this short message deserve notice. The first is that what I sent was a draft. Nothing in the email suggests a sworn document, a finalised one, or one ready to be lodged. The second is that the plan for barrister review was stated on 11 September, to a third party, eight days before any deadline arrived. It was not a position adopted in a panic on the last day; it was settled in advance and said aloud.

Moti replied on Friday 13 September. He had read the draft and found it concise and direct. He then offered a strategic assessment that is the most candid passage in any of the three exchanges. The Chief Minister, Treasury and Economic Development Directorate had denied holding the documents, despite what the Ombudsman’s letter said, so at this stage, in his words, ‘all you really need to do is go through the motions.’ Once the ACAT process was complete, I would be able to say that I had exhausted every available domestic avenue for having what Moti called Angel Marina’s ‘officially sanctioned racism’ addressed, and the matter could then be taken to the United Nations. ‘You don’t need to achieve anything more at ACAT,’ he wrote, ‘than filing the application and having it struck out.’ On the question of the affidavit itself, Moti agreed with me: given that Garrisson could not be trusted, having it reviewed and settled by a barrister in Australia was a sensible move.

A hostile reader will fasten on the phrase ‘go through the motions’, and fairness requires me to deal with it directly. It does suggest that the ACAT application was understood by both men as a procedural step towards an international forum rather than something expected to succeed on its merits. That is what the email says, and I reiterated in 2016 that dismissal of the application was the outcome I had been seeking. But consider what such a strategy requires. An application that is meant to be filed and struck out needs no persuasive evidence, no impressive annexures, nothing designed to convince a tribunal, because its success condition is dismissal. It is a fair inference, though only an inference, that a person pursuing that strategy had no motive to manufacture documents for the tribunal’s benefit. The email proves nothing about the provenance of any particular annexure. It does bear on motive, and it was written two and a half years before any charge was laid. It also records advice from a senior lawyer that endorsed the one step, independent review by counsel, that would slow the filing down.

19 September 2013: The Instruction

The ACAT filing deadline fell on 19 September 2013. I had met Robens the day before; my email refers to ‘our meeting yesterday.’ At 10:14 on the morning of the deadline I wrote to Robens in terms that could hardly be clearer: ‘could you please not file any affidavit from me in ACAT until it has been reviewed by counsel.’ I acknowledged the consequence in the same breath: ‘I appreciate that this means we will not meet the ACAT timeline for filing by 19 September.’

My reasons were the same as those I had given Moti, with one addition. He did not trust Garrisson, and he wanted ‘to establish as wide a paper trail as possible in case he resorts to his old tactics.’ Garrisson, he wrote, had done everything in his power, and successfully, to derail the last proposed application to the Australian Human Rights Commission against Tu Pham, an application that would ultimately have concerned the actions of Angel Marina. The phrase ‘paper trail’ is worth pausing over. On the very day the deadline fell, I was building a record, in writing, to a lawyer, of what I had and had not authorised. Whatever one thinks of the suspicion behind it, the email is contemporaneous, explicit, and aware of its own cost.

Robens answered. His reply states that he would not file an affidavit with ACAT that day, ‘as instructed by you’, and that he would seek an opinion from counsel as soon as possible. He also recorded that he noted my advice that I was comfortable with missing the 19 September deadline. This is the solicitor’s own confirmation, in writing, that the instruction had been received and would be followed, and it comes from the very lawyer before whom, according to the police email of 2016, the affidavit was said to have been sworn on that same day.

2016: The Police Enquiry

The third exchange begins on Saturday 30 January 2016, when Constable Harris of the AFP wrote to Chamberlains. He described me as a former client who was then before the ACT courts on a number of charges of Use False Document and Use False Evidence, stemming from the use of false documents in an ACAT matter in 2013, at which time I had been represented by Robens. Among the documents in issue, Harris wrote, was an affidavit of Mark Mullins sworn before Robens on 19 September 2013, whose annexures were also signed by Robens on that date. A copy of the affidavit and annexures had been lodged with ACAT on 19 September 2013, but the original affidavit and annexures had not been provided to ACAT and were ‘now being sought as evidence in the criminal proceeding.’ Harris had spoken to Robens, who had indicated that he did not possess any documents relating to Mullins. (The original email said ‘indicted’; Harris corrected it to ‘indicated’ when he re-sent the message on 17 March 2016, after speaking again to the firm by telephone.) He asked whether Chamberlains held the original sworn affidavit and annexures. It needs to be clearly stated here: Chamberlains has consistently stated that it does not hold any copies or drafts of the requested affidavit nor does it hold any of the annexures that were allegedly attached to that affidavit. What does this mean? The only way Chamberlains statement can be read is that the firm had no part in the drafting of the affidavit in question. Strange given Constable Harris stated plainly that the affidavit had been prepared by the firm.

Set beside the 2013 emails, this account presents a stark difficulty. According to the police email, an affidavit was sworn before Robens on 19 September 2013 and a copy lodged with ACAT that day. According to Robens’s own email, written that same morning, he would not be filing an affidavit that day because he had been instructed not to. These two statements are not reconciled by reading a word differently. One describes a lodged affidavit and the other a refusal to lodge one. The emails do not tell us which document was in fact lodged with the tribunal, if any, or by whom. What they do establish is that the lawyer said to have sworn and signed it had, in writing, on that day, recorded that he was acting on a contrary instruction.

There is a second feature of Harris’s email that deserves attention. By his own account, the original of the document charged was not held by ACAT, and the solicitor said to have witnessed it held nothing. The charge was one of using a false document, yet the original, the one object that would carry the signatures, had not been found. The email of 30 January 2016 was written while I was already before the courts. It was re-sent on 17 March 2016, forwarded within Chamberlains the same morning by Brooke Buttler to Stipe Vuleta, and sent on to me by Vuleta on 18 March with a question: did he want the firm to pass it directly to Phil Gibson?

The Chronology Problem

I replied at 9:43 on the morning of 18 March 2016, from my phone. I said yes, the email should go to Gibson, and then raised what I called a concern about the chronology, which appeared to me to be internally inconsistent. Constable Harris had charged me in April 2015 with using a false document. In March 2016, almost a year after laying the charge, Harris was apparently still searching for that same document. ‘If Constable Harris did not have the document in his possession at the time,’ I wrote, ‘I would like to understand what the charges were actually based on.’

The question is a fair one to ask. The date I was charged, was April 2015. The search for the original, in January and again in March 2016, is Harris’s own statement and appears on the face of his emails. The tension I identified therefore arises from combining a fact the police document establishes with a date I was charged.

I then set out my own background in three short steps. At the beginning of September 2013 I had instructed Chamberlains not to file an affidavit in the ACAT matter until a barrister had reviewed it. My reasoning was simple: I did not, and still did not, trust Garrisson. My affidavit was not finalised until after 19 September, so the ACAT deadline was missed, and the matter was ultimately finalised without any evidence being filed on my behalf. Dismissal of my application was the result I had been seeking. It matters that this account matches the contemporaneous emails point for point: the distrust of Garrisson, the barrister review, the missed deadline, the acceptance of that consequence.

It is not a story assembled in response to a charge. It repeats, two and a half years later, what he had written at the time. That is its real strength, and it is also the measure of its limits, because a 2016 email written by a man under charge is self-serving by nature. Its weight lies in its agreement with the documents of 2013, not in any independence from them.

Then came the question that gives the exchange its force. ‘If no affidavit was filed on my behalf,’ I asked, ‘what is the origin of the affidavit that the Government Solicitor provided to Constable Harris?’ I added my belief that, on the facts as I understood them, it was Garrisson, not me, who had used a false document. That is a belief stated by me in 2016, on my understanding of the facts, and the emails do not establish who prepared the document or how it reached the Government Solicitor. But the question was put in writing, through the firm’s own channel, before the trial, and it goes to the heart of the matter. The prosecution’s case at the pre-trial stage was that the affidavit was prepared at my direction by my lawyers. The only direction documented in any of these emails is the opposite one: do not file.

What the Emails Do Not Establish

Candour requires a list of limits, and I would rather state them than have them pointed out. No email contains the disputed affidavit or its annexures. None identifies who authored the document that the Government Solicitor supplied to the police, or when. None says whether Chamberlains, or anyone, filed something with ACAT after the 19 September instruction. None gives Garrisson’s side. Harris’s statements about what was sworn and lodged are his understanding as he put it to the firm, not findings. Moti’s ‘go through the motions’ can be read unfavourably, as I have acknowledged. And a refusal to strike out an affidavit before trial rests on different questions from the one a jury answers at the end of it, so that a pre-trial ruling and a later acquittal can sit side by side without contradiction. I do not suggest otherwise.

A Question Left Standing

What the emails do show is coherent and consistent across three years. In September 2013 I told a Queen’s Counsel that I would have a barrister settle my draft before it went any further. On the day of the deadline I told my solicitor in writing not to file, accepted that the deadline would be missed, and received written confirmation that my instruction would be followed. In 2016, charged with using false documents in that very matter, I wrote the same account to the same firm, and asked the one question the prosecution’s own emails invited: where did the affidavit that reached the police come from?

The jury answered the question put to it. The emails answer a different one, which is what I actually authorised, and on that point they speak with a single voice and an unchallenged provenance. The question they leave behind, the one I asked in March 2016 and the documents do not resolve, is not a question for me. It is a question for the institutions that held the document, supplied it, and charged on it. In a matter that has always been about whether those institutions can be asked to account for themselves, it remains the right one to ask.

– – –

Bakchos is the founder of Blak and Black, an Australian media and advocacy platform established in 2010. Bakchos writes from the intersecting perspectives of Wiradjuri heritage, Jewish identity, and humanism.

© Bakchos, October 2026

BLAK AND BLACK  |  MEDIA AND ADVOCACY  |  EST. 2010