Dr. Mohammed Haneef, medical registrar at the Gold Coast Hospital, is now in his eleventh day of detention without charge on the basis of Federal Police suspicion of his supposed involvement in the bungled UK terrorist attacks. After all this time even the Government Gazette feels obliged to report that the police have come up with no evidence to support charges against Dr. Haneef. Nonetheless he remains in detention whilst the fishing expedition continues.
Dr. Haneef’s lawyer has stated that under the Federal Government’s “anti-terrorism” laws his client is being denied natural justice. He is not able to apply for bail, and until very recently the purported grounds for his detention had not been made know to Dr. Haneef or his lawyer.
Legal academic George Williams has said that Dr. Haneef is in the worst kind of legal limbo.
He has less protection than if he was actually charged. The media can have a field day. When you are charged the media can’t publish anything that affects your right to a fair trial.
And the media has had a field day.
The Government Gazette’s Brisbane stablemate (the same paper which assured us that the late Manning Clark had been awared the Order of Lenin) has published front-page stories, with headlines such as “Sinister Links” which consist entirely of backgrounding from unnamed “police sources” about Dr. Haneef’s supposed associations, whilst its unblushingly down-market Gold Coast stablemate has done the same, (also aspersing Dr. Haneef’s friend Dr. Mohamed Ali) under headlines such as “The Enemy Within”. Amongst other things, this has led to excitable lumpenproletarians admitted to the hospital being highly uncooperative with medical staff on the grounds that “I don’t want to see an Indian doctor. I don’t want to see a terrorist.”
As Williams notes, this sort of thing will make it very difficult for Dr. Haneef to resume a normal life if and when he is released.
One obvious concern now is that the detention of Dr. Haneef may have taken on a life of its own, in that the Federal Police and the Federal Government, for fear of embarrassment if Dr. Haneef is released because nothing is found to justify detention of an innocent man for such a sustained period under such Orwellian legal conditions, will now seek to detain him “as long as it takes” until their fishing expedition can turn up something semi-plausible which a suitably disposed judge will deem worthy of a day in court.
To his great discredit, Federal Labor leader Kevin Rudd has stated that he has no concerns about Dr. Haneef’s continued detention, and that a Labor government will retain the laws which have enabled this situation to occur.
If there is any justice in electoral politics, the vote for the Greens and Democrats in this year’s Federal election will be swollen by a flood of principled social democrats, liberals and democratic conservatives determined to vote to preserve the basic norms of democracy, the rule of law and the rights of citizens on which the Anglosphere has prided itself for two centuries.
The most damning accusation, so far, against Haneef is that he shared a house with one of the Glasgow bombers.
This is a perfect example of why you’ve got to be extra careful in looking over the people who respond to your Share Accommodation ads. This applies in particular to medical students. You just don’t know whether they might turn out to be terrorists and would-be mass murderers.
That’s what really bugged me about the terrorism laws. They effectively put a gag order on the accused while letting the police, politicians and whoever else wants to make some hay out the situation have a free for all. If silence is necessary then enforce it on everyone.
Big Brother is suddenly looking much bigger! Democracy is suddenly looking much smaller!
two centuries? Habeas Corpus has been around in an unwritten form since the 1300s, it got formalised statutorally in 1679.
True enough cam.
Paul Norton
Ah, for those halcyon days of 18th century London. Coffee shoppes trilling with the bons mot of philosophes and jurists, Gibbon’s latest chapter in one hand, a quip from Voltaire in t’other.
If only the Ottoman Empire had not thrown its lot in with Germany……
The whole Indian angle is interesting. Sure, Indian diplomats have lodged the usual official protests etc., but the fact that Nelson is over there trying to build an info-sharing system, and the fact that they are a growing economic and military power, shows that this whole policy will need to be rethought – and fast, regardless of what Rudd says in the short term.
Obviously there isnt currently enough evidence for Haneef to be charged in either country, but they would not be holding him if they did not have considerable grounds for suspicion. They also have to reapply for some sort of judicial approval every two days (as I understand it).
Its ridiculous to assert that he is held purely for the Governments political benefit. If so, why have they released the various other medical staff who have been questioned in Australia? You just trot out that same feeble, cliched conspiracy theory every single time something like this happens.
Presumably Haneef is likely to be expelled even if he is not charged (or extradited), since he is on some sort of temporary visa. His intentions may have been far worse than those of Scott Parkin.
Right Bill.
So they have ‘considerable grounds for suspicion’, but can’t find anything remotely suspicious after locking the dude up for two weeks. Talk about having your cake and eating it.
The whole idea is an oxymoron. If there were considerable grounds, he would be charged. That’s what authorities do.
Bill what part of trial by media do you not understand and why do you not understand it?
FFS, just try and wrap your head around the fact that he may be innocent. Then imagine if you were innocent of any crime, but had been labelled as a terrorist by virtually every media outlet in Australia. Then imagine if you were in that position.
PS. It’s called empathy.
Well said, patrickg and adrian. Plus there’s the considerable difficulty, if he is charged, of finding a jury which would not have been prejudiced by the lurid and unrestrained media coverage against which he has had no opportunity to defend himself.
Too bloody right!
This is a classic example of the dangers associated with tampering with habeas corpus.
The fact that the government has a list of approved magistrates means necessarily that there is executive meddling in judicial functions.
The separation of powers exists to protect the executive as well as the rights of the person of interest.
Under present arrangments there is now no elegant means of ending this process beond the person of interest being vomited unceremoniously out of the belly of the executive beast.
But Ratty and Ruddock were determined to make political hay while they could.
“which would not have been prejudiced by the lurid and unrestrained media coverage”
Not only that but some of the information they have been publishing has been incorrect, such as the claim Dr H didn’t tell the hospital he was taking leave. This was denied by the hospital yet you the correction was so deeply buried that most people who read the first claim had no idea that it was not true.
Same thing re his doctor friend. Declared a terrorist by the media when taken in for questioning, yet later released without charge.
“But police argue releasing Dr Haneef would make it more difficult to monitor his movements and who he talked to, in Australia and overseas.”
http://www.smh.com.au/news/national/dr-haneef-it-just-got-worse/2007/07/13/1183833738505.html
What a load of CR*P! They aren’t finding out anything about his movements or who he might talk to while they have him locked up either!
Are they so incapable of doing their jobs that the only way they can monitor his movements and conversations is to lock him up?
I guess these guys are white Christians, so its all okay…
Is it the ethnicity of the defendants or the religious convictions you impute to them or the fact that a jury failed to agree on a verdict on the evidence presented to them, but about which you know nothing, that offends you.
Are you not just indulging in the very prejudice that you are implicitly accusing the jury of?
First McClelland says Labor may well leave combat troops in Iraq for up to a year … 6 months more than the Democrats have just decided is their position in the USA … and then Rudd says he sees nothing wrong with laws that allow detention on the whim of the executive government.
IDK why the public seems to regard Howard’s mob as having better credentials than Labor on ‘national security’ – their policies appear to be identical.
No, I’m not. I’m just pointing out that despite having huge amounts of chemicals used to make explosives, a manual for making them downloaded off the internet, admitting to preparing to manufacturing gunpowder and admitting that they planned to actually use al l these weapons of mass destruction, they are found not guilty. Which leads me to agree with the cop in charge of the investigation who says, “This investigation was not from intelligence-led, proactive policing.”
True, because for some reason members of a fascist, white-supremacist organisation are not subject to scrutiny by law enforcement.
And who goes on to say that,
“It was Carina Cottage saying come and help me, and her husband stockpiling food because he thought there was going to be a civil war. These are totally different circumstances to any Islamic terror trials.”
Which is also true, in that the Nazis involved had the materials and the know how to actually use their weapons, rather than in the recent case of four Muslims condemned to 40 years jail in the UK and the amateurish car bomb attempts of a couple of weeks ago.
I also not the complete lack of media frenzy…
patrickg, what makes you sure they have “can’t find anything remotely suspicious”. Are you part of the police team investigating Haneef? Do you really think the police have to tell the media everything they know, (or dont know), even in such a high profile case?
I’ve certainly never insist that Haneef is guilty and Keelty and Ruddock have both said that he may be cleared, (or words to that effect), as well.
An Australian Dreyfus? What a ridiculous comparison. If media reporting is correct, you have every reason to expect he will be released without charge soon. That’s just a little, tiny bit different from being convicted of a trumped up charge and sent to Devil’s Island for years before exoneration, isn’t it?
Your paranoia about the police/government now keeping him in custody “for as long as it takes” flies in the face of the fact that the Magistrate has already refused once to give a 5 day extension, allowing only 2 days instead. What do you think, the Magistrate is now going to start giving month long extensions?
Get a grip. Terrorism is different from other criminal activity in its aims and means. (Just how many sane common criminals intend killing tens or hundreds of people in the course of their activities?) That’s why ordinary criminal law is inadequate for its investigation.
The only legitimate point you make is against the excesses in the behaviour of the media. If you want special laws to deal with that too, fine, I could see an argument for that. (But then again, if media outlets were entirely banned from reporting the detention of someone under these laws, you would complain that it meant the State could operate with complete secrecy like the worst totalitarian regimes.)
After the farcical Hicks case in Guantanamo, many people seemed conditioned to think that if the authorities grab someone, they’re guilty!
Of course, if they were arrested and held indefinitely without charge, their view would change completely and they’d squeal like stuck pigs!
But you commented on their ethnicity and the Christian religious convictions you imputed to them, even though the article that you linked to made no reference to any such beliefs.
Now you say that:
How do you know that? Members of extremist Islamic organisations are subject to scrutiny by law enforcement agencies in Britain but that has not stopped three terrorist attacks in the past two years, one of which was tragically successful. Why should it be any different with members of fascist white-supremacist organisations in that some of them would be below the police radar?
And you get your facts wrong when you write:
One of them had already pleaded guilty to the possession charge and so in his case that matter did not even go before the jury. Nothing in the report you linked to says that they had made any admission that they had planned to actually use the explosives (which only to a fevered imagination could be described as weapons of mass destruction) and it is likely that on this point of evidence that the juries at their trials were divided having to decide whether on whatever evidence was before them the discussions between the two men were sufficient to meet the criteria for conviction for the offence with which they were specifically charged.
The jury may well have got it wrong. Juries do that from time to time. But it is unfair to, as you have, impute base motives to jury of considerations of ethnicity and religious persuasion when there is simply no evidence that those considerations influenced to jury at all.
Chav
I read that UK media report you cited on the 2 BNP guys who were acquitted. They certainly may have been lucky, but the media report itself does not suport some of the things you say:-
Firstly you say they had “huge” quantities of chemicals – what justifies the word huge? Have you some further information?
Secondly, is it entirely clear that they had actually prepared explosives? The report says that they had in some sentences but somewhat contradicts that in others.
Thirdly why do you assert that the “Nazis involved” had superior ability to actually detonate bombs? Do they have prior form or military training? “The Doctors” seem to have got rather closer to success don’t they?
The British police certainly monitor a variety of extremists, including the racist right, and they would have some informants in these circles. They do devote far more attention to Islamist extremists, but then Islamists seem to be far more dangerous. It’s hardly surprising that they failed to penetrate a plot involving only 2 people.
A) They seem to be doing a pretty spectacular job of leaking bloody anything and everything at the moment. So yes, I’m inclined to believe they do.
B) So you think the police are sitting on a shitload of hot-potato conviction porn, and they’re what? Just extending Haneef’s detention for the heck of it? Because the cells were getting a little musty and needed a some movement?
Don’t be ridiculous. Either there is evidence, or there’s not. There isn’t a good-chance-of-maybe-evidence-that-we-just-need-to-open-one-more-Firefox-cache. That, Bill, shockingly, counts as Not Evidence.
Ten days is more than long enough to find something chargeable, or not.
I wonder how many non-white, non-Christian members of a right-wing, white-supremacist organisation there are?
It shouldn’t be, but it is. The Nazis weren’t busted because they were under surveillance they were able to amass a huge quantity of explosive material, a rocket launcher and a NBC suit, but because the partner of one tipped of the cops.
“Cottage had admitted possessing explosives for unlawful purpose at the first trial because he said he needed to defend himself as the country was heading to civil war.”
“When Cottage admitted possessing explosives at his first trial in February, he said he planned to make gunpowder from the chemicals to cause thunder flashes to scare off intruders in the event of civil unrest.”
“A FORMER British National Party member has been accused of possessing the largest amount of chemical explosives of its type ever found in the country.”
Yeah, okay…
“A FORMER British National Party member has been accused of possessing the largest amount of chemical explosives of its type ever found in the country.�
They certainly do…
Actually, ‘terrorists’ of Christian background, namely the IRA, have been responsible for more deaths in the UK than Islamists…
The question you should ask yourself is how many white Christians are not members of right-wing white supremacist organisations.
Nothing in the reports you have linked to indicates that a) they had a huge quantity of explosive material, b) a rocket launcher or c) an NBC suit.
What? The earlier report you linked to said they were chemicals intended to make gunpowder. More than Guy Fawkes assembled under Parliament, were they?
Your point seems to be that the Police got lucky on this occasion because they have no surveillance of right wing nutters, but you have produced no evidence at all that they don’t have such surveillance, however inadequate, just as they have surveillance of Muslim extremists, however inadequate that has proved to be in the recent past.
How about giving us a fact based post instead of sharing your prejudices with us.
Still it’s nice to see that you, however grudgingly, accept my point that you have not made a case that there is evidence that the jury’s acquittal was on improper grounds.
Everyone:
For me …. the ethnicity and religion of anyone questioned over such serious matters don’t come into it at all. Regardless of whether they be Indian Muslim, Aussie Agnostic, American Bible Fanatic or believer in the Flying Spaghetti Monster
If he is innocent, if there is no evidence of wrong-doing, he MUST go free – no ifs, buts or maybes.
If he is connected with any act of terrorism, he must be interrogated – humanely, professionally, thoroughly and in accord with the spirit of The Law ….. with any evidence gained from such interrogations used solely to frustrate the terrorists and to protect innocent people from harm ….. and not to boost the image of any politician nor to provide entertainment for gawkers nor to help spoilt bullies get their jollies out of inflicting “revenge”.
Not no surveillance, just enough to ensnare Muslims with far less material and uncover “death in the skies” liquid bomb attempts that kinda, like disappear into thin air, but not enough to catch two (or more) Nazis amassing a hoard of deadly weapons.
But like I said earlier , maybe they get confused as to who is a cop and who is a BNP member…
What prejudice would that be? You seem intent on believing that honest white folks are incapable of amassing anything more threatening than a tin opener, despite the evidence. And as for facts, lets compare the numbers killed in the UK by ‘terrorists’. As I pointed out before, the perpetrators of the greatest violence have come from somewhat rabidly Christian backgrounds.
I did? Do tell…
Of course ethnicity and religion should not come into it, but the cold hard reality is that we as a society of “reasonable” people crave the ability to pigeon hole the enemy anyway we can. The media knows this intimately well and prays on it.
They also know we will be much more interested in the story if it has a face to pin to it. To do that they must throw the basic rule of law out the window, name him, shame him and hang him out to dry and if by some miracle he turns out to be innocent then they will deftly jump the fence and shout Human Rights Violated!!!!!
It could happen to anyone, theoretically. Well, least hyperthetically.
That’s my issue hear and that was my issue with Hicks. What is a reasonable way to be treated without compromising the safety of the populus.
Wazzasleep:
By developing thorough ACCURATE local and international intelligence – sometimes called “prevention”. By not hunting for scape-goats [as in the Hate-The-Germans during World War I and World War II]. By not by relying cross-referenced gossip [g.i.g.o.!!]. By not pandering to the needs of politicians and entertainers/”news”[??]-media.
They’ve dropped the application for an extension.
Reeks of politics to me.
Robert, what’s happened? I thought you usually provide the more reasonable posts here! If the Federal Police had gone and sought a 14 day extension, Paul Norton would be saying “see – they’re just trying to avoid embarrassment now”. But the Feds drop the case, (assuming no charges are laid) and it “reeks of politics”? Err, maybe it is just that the laws and investigation have worked exactly as they should have – allowing the Feds (and the British too I guess) enough time to check out to a reasonable extent an Australian’s resident’s close connection to some mad bombers in England. And it was constantly supervised by a Magistrate who showed no sign of giving the police everything they wanted.
According to the ABC news site, Haneef has with “recklessly supplying a mobile phone sim card to a terrorist”.
whoops, should read
Haneef has been charged with “recklessly supplying a mobile phone sim card to a terrorist”.
http://www.abc.net.au/news/stories/2007/07/14/1978526.htm
WTF !!!!
Guess the university he trained at had better prepare for the incipient cruise missile/airstrikes against the terrrrist training centre (with a couple of helpings of “shock & awe” on the side, thank you).
Given that it has taken so long to charge Haneef, despite the fact that the “authorities” evidently knew,
pretty much from the time they incarcerated him, about the sim card, and that he gave it to his uncle (as widely reported in the MSM) I can only conclude too that it
Reckless provision of a sim card…
Gilbert and Sullivan couldn’t have come up with anything so ridiculous as this charge.
When face-saving and arse-covering are identical acts you know you are witnessing the behaviour of prize idiots.
Nice to see you finally getting around to posting links to support some of your claims, Chav. Your argument seems to be that the police should be resourced to keep everyone under surveillance all the time. We’d all support that I’m sure.
Maybe they’re just equal opportunity employers: http://www.dailymail.co.uk/pages/live/articles/news/news.html?in_article_id=466832&in_page_id=1770&ct=5
TEH CRUSADES, TEH CRUSADES!!!
You have produced no evidence at all that either of the two men who were tried were in fact Christians, but don’t let that stand in the way of a bit of anti-Christian bigotry. If they are Nazis, as you have described them, then it’s highly unlikely that they’d be followers of a religion founded by a Jew.
Your characterisation of the members of the IRA as having come from “somewhat rabidly Christian backgrounds” is the most hilarious thing I have read in your otherwise quite hilarious posts. Most of those guys would have been in a church only twice in their lives, once for their baptism and once for their funeral.
John 24:7
Katz:
to be fair, it’s fairly standard procedure in normal criminal cases to charge somebody with something fairly minor which the police have strong evidence for, while they continue gathering evidence on more serious crimes
He’s been charged with providing support to a terrorist organisation.
Robert Merkel, GregM et al:
Charged or uncharged, guilty or innocent, this whole show has moved along at an 19th Century gentlemanly pace ….. we are not up against Luddites or Fenians on foot or on horseback, we are up against enemies who can move at the speed of light and who have access to the latest technology.
Now that Dr Haneef has been charged, he MUST be given the full protection of our judicial system [woefully imperfect though it is]. He MUST be given every right and facilty to clear his name. So if [or rather, when] the Ministry Of Propaganda that pretends to be a “free press” in Australia starts their usual stunts, let’s all jump on them with size-10 boots. We have lost a hell of as lot of our rights, protections and liberties under Howard; let’s not lose the good old Aussie sense of a Fair Go.
This “minor crime” carries a maximum sentence of 25 years.
Fifteen years, not twenty five, Katz. That would be s 102 (7) (1) which deals with intentional conduct. The charge is reckless conduct (s 102 (7) (2)). It would of course be up to the prosecution to convince a jury beyond reasonable doubt that each element of the offence is proved including the element of recklessness which has almost as high a threshold of proof as proof of intent does.
Frankly, if he is guilty then I think that the sentence is entirely appropriate. But then I take the threat to human lives from terrorists seriously.
I have no grounds for disagreeing, but am I the only one who finds such a transparent means of getting around habeas corpus a bit of a worry?
And of course in this particular case, I suspect that this ‘wait until we unload what he really did’ mentality is exactly what The Authorities are counting on. I’m sure They can keep up an impressive supply of leaks and innuendo until November and after that who cares?
What particular interest are you saying that the Australian Federal Police, who have laid the charges, have in what happens in November, Ken?
So come on folks, as you read that provision when it was passed did you really think to yourselves “Sheesh, no more helping out the relos with my mobile phone when I leave for the other side of the world.”
Well did you GregM?
Why none at all Greg M. As sophisticated men of the world such as you and I know, police forces in democratic societies such as Australia have no interest whatsoever in party politics. They are notorious for shunning politics, even when the party in power has done so much to boost their resources and public profile.
It is however vaguely possible … highly unlikely I know, but just conceivable … that one or more police officers might – unconsciously no doubt – act in a way that they believe would please some political animal like …. oh, Philip Ruddock or John Howard, to pluck random names out of the air.
Oh hell no, you’re right, the idea is preposterous.
Christian anti-semitism? That’s unpossible.
Ken, I don’t know all the facts of the case, and neither do you, so I will leave the final conclusion to the courts. But to speculate, as you have done with your comment, if I knew that my relos were involved in terrorist groups, even if I did not know the extent of that involvement, then yes.
So you’re just another dime-a-dozen conspiracy theorist climbing out of the woodwork then, Ken.
Anthony I know that most people who post at LP are historically ignorant but, just so you know, the Nazi ideology wasn’t Christian.
And you would consider 15 years in gaol an appropriate penalty for giving them something that they could walk down the high street and get for themselves at minimal expense and trouble.
That’s what is being suggested … nothing to do with the facts of the case that have to be decided by the court. The prosecution is alleging that the law makes this normal everyday family transaction a crime punishable by 15 years in gaol. The government has not contradicted the prosecution, nor has the leader of the opposition. Apparently they all think this is a dandy law.
I don’t.
And I suspect I’m not the only one who finds smartarse assumptions of moral superiority – as in “I care about the deaths caused by terrorists even if you don’t” – insufferably smug.
LOL jeez I think we have a new Australasian record for the “Quick mum … the ad hominem … I need the ad hominem dammit“
Yes, if in doing so they recklessly assisted a terrorist organisation
Well they would consider it a dandy law. They passed it after all, after considerable debate
And Ken, in your case I think I am perfectly entitled to assume my position of moral superiority. I don’t run around spruiking silly conspiracy theories without seeing the need to have a fact to support them.
The very term “reckless assistance” is logical nonsense.
Recklessness is to be heedless of effects or consequences.
Yet “assistance” is by definition to be heedful of effects or consequence.
If a milkman continues to deliver milk to an address even though ammonium nitrate is stacked on the porch, is that milkman “recklessly assisting” a terrorist organisation?
What if Haneef had given a book of postage stamps to his relative? Does that constitute “assistance” whether heedful or “reckless”?
The offence should be laughed out of court.
15 years for passing on a SIM card? Appropriate “if in doing so they recklessly assisted a terrorist organisation.”
Ridiculous.
GregM, I think your sense of proportion needs a little recalibration.
15 years is the maximum sentence. Perhaps, if found guilty, he may only be sentenced to 14 years or less.
However if he KNEW that his ‘lations were terrorists, then the numerals in his 15 year sentence should be reversed.
And that would be somewhere in proportion with the offence.
Recklessness is a well recognised concept in criminal law, Katz, and it would not trouble a court at all to apply the concept of reckless assistance. It won’t be laughed out of court because it is the business of the courts to apply the laws passed by Parliament and, subject to the Constitution, not to be independent agents. We call this the rule of law.
Still, as I alluded to above, the test for what is reckless behaviour, as against, say, negligent behaviour, is a steep one and it is very possible that the prosecution would founder on that.
A SIM card is a key.
By analogy, if you knew someone who was in a homicidal rage who wanted to drive your car somewhere so they could kill someone would you not, in handing over the key to your car be engaging in reckless assistance? You know the forseeable consequences of your action, the death of someone, you do not wish that outcome so you do not have the intent that that person dies, but with that knowledge of the forseeable consequence for you to hand over the keys is to allow the murder to take place. There we are, that’s not so difficult to understand is it: reckless assistance. In that case not it’s not murder but accessory before the fact of murder and for that a 15 year (maximum) tariff sounds about right.
The idea that SIM cards are lethal weapons is novel, to say the least. Perhaps we should all keep them in locked cupboards in case they fall into the wrong hands.
I’ve got it! The prime minister’s next rabbit out of the hat will be a buyback scheme to rid the community of semi-automatic SIM cards! Too bad Kevin, it looks like another spell in opposition for you dude.
GregM if you are seriously suggesting that the common law concept of recklessness is one and the same thing as the crime of being an accessory before the fact, you are making an even bigger fool of yourself than you have in earlier comments.
No Ken, I’m not saying that at all. I explained in my reply to Katz that the concept of recklessness was was familiar to the courts and that the courts would enforce an Act of Parliament creating a crime of reckless assistance.
I explained to Gummo, by analogy, how the crime of reckless assistance would be similar to being an accessory before the fact in the specific circumstance I set out. Not the same thing at all, but analogous.
Do try to keep up.
Let’s break this down shall we? Either he gave a phone to his fellow doctor in the KNOWLEDGE that it might be used as a weapon of mass destruction or he gave it to him, as he apparently claims, because it was a cheap plan and he thought it was a shame for it to be wasted just because he was moving to Australia.
Let’s imagine for a moment the first scenario. His mate says to him: “We want to blow up an airport. We’re right for the explosives and stuff – we just can’t seem to get our hands on a mobile phone.” The Brisbane doctor replies: “I can’t join you in jihad, because the Gold Coast beckons, but maybe, if I RECKLESSLY give you this otherwise unobtainable instrument of mass destruction I will get the virgins and stuff when I snuff it, and, in the meantime, can surf”.
Far more plausible than the second scenariom I agree.
Do Optus or Telstra or Vodafone or whoever get charged for providing the SIM card of evil?
That’s what a jury will have to decide along with all the other evidence presented to them, if the case ever gets to them, and I expect that they’d be pretty demanding on the prosecution’s evidence, given that the standard of proof required is beyond reasonable doubt.
But let’s say, hypothetically, that the SIM card only had three minutes credit on it. They might wonder at the credibility of the cheap plan motivation.
Still, just like you I am only idly speculating. Better that we leave it to a jury. At least TEH EVIL ONES (we all know who they are) haven’t legislated away the right to trial by jury although of course should the Australian people in a fit of deranged affluence-driven wickedness and a complete failure to appreciate the glories of a socialist society (not that Rudd’s alternative is any better) that will be the first thing that will go after they are returned to office and then we’ll be no better off than the oppressed people of…..Holland.
GregM, you’ve been ending up in the spaminator and the double-posting is just putting both in the spaminator. I’ve released them all and then deleted the duplicates which hopefully will teach the dumb thing.
The standing instruction is to email LP Admin, but not sure anyone is up right now. I’m definitely heading for bed. Good luck!
It’s up to a jury to decide whether and to what extent they are willing to agree unanimously that the set of behaviours of the defendant, as outlined by the prosecution case, adds up to “reckless assistance”.
GregM demonstrates his want of understanding of the nature of “recklessness” here:
This may be the crime of accessory before the fact, although that too would be a stretch.
Historically, recklessness in criminal law revolves around the notion of engaging in conduct which any reasonable person should recognise would result in death or GBH. The principle arose from English hearties driving gigs at great speed down public highways and running over people. It is worth noticing in this context that only the hearty who actually ran over the victim was prosecutable for murder, even though he was racing an equally stupid and reckless hearty who happened to be lucky enough not to squash a member of the public. there was no plot or conspiracy to kill the unfortunate victim.
The idea of the luckier hearty “recklesslessly assisting” the murder of the victim was never accepted in criminal law. In the 19th century, it seems, prosecutors, judges, and juries understood the essential contradiction between “recklessness” and “assistance”.
Mick Keelty has made the following helpful contribution to the discussion about “recklessness”:
Yep, one of the strengths of the jury system is that if they don’t like a law they won’t convict under it and don’t have to give reasons. The “perverse verdict”, as it is called, places a reality check on legislators. As I’ve said above let’s leave it up to a jury, if the matter ever gets that far.
Well of course that was a happier and more innocent time, as we both know from an earlier thread on this topic when the British parliament, gentlemen all, did not pass any novel legislation in reponse to the threat of Irish insurgency and, had they done so then British prosecutors, judges and juries would never have enforced it,and indeed would have laughed it out of court, jolly fellows that they were. Or such, as I recall, was the extent of your knowledge of nineteenth century British legislation.
Howeveer you might consider the case a nineteenth century hearty sitting in the carriage cheering his mate on as he drove recklesslessly. You might find that, in accordance with principles set out in the decision in Coney (1882) 8 QBD 534, BFW 1320, a nineteenth century jury would have convicted the cheering hearty for his participation.
Your analysis of the inherent contradiction between the concepts of recklessness and assistance based on the passing milkman is too risible to comment on.
And Greg Barns offers this perspective on the matter.
From Carmel Egan’s articl, the quote from Greg Barns:
Incitement to violence a thought crime? Who’d have thought?
Of course the Age being what it is Carmel Egan upholds its standards by getting her facts wrong. Rob Stary practises as a solicitor, not as a barrister.
What a fascinating perspective on parliamentary democracy. Don’t worry if the legislature gets a bit carried away cos the good old jury won’t uphold the law.
Then again:
So it’s good for the jury to second guess the legislature – one of the system’s strengths in fact – but it’s not the courts’ business to be independent agents.
No doubt it all makes perfect sense and I’m just being slow again.
Howeveer you might consider the case a nineteenth century hearty sitting in the carriage cheering his mate on as he drove recklesslessly. You might find that, in accordance with principles set out in the decision in Coney (1882) 8 QBD 534, BFW 1320, a nineteenth century jury would have convicted the cheering hearty for his participation.
Is this as good as you can do?
Coney concerns a prize fight. There was no recklessness inferred in the spectators whom the court opined could be accessories before the fact in knowlingly (not recklessly) inciting an assault.
GregM bails.
No, Ken you’re not being slow. The strengths and weaknesses of the jury system are often discussed. Here is a discussion paper from the NSW Law Reform Commission which canvasses those issues. http://www.lawlink.nsw.gov.au/lrc.nsf/pages/DP12CHP2
One of the points made in the paper is:
I have a Dutch friend who is completely mystified by the common law jury system as the Dutch have a civil law system with trial by judges and not juries. The Dutch have, he tells me, very high confidence in their judiciary and do not believe that having a jury would add to their confidence in the justice that Dutch law dispenses. We have inherited a different legal system and the role of the jury has been seen as a bulwark against judicial oppression, especially so in the 17th century when judges were seen as agents of the king and not independent of the executive as they evolved to be after the Glorious Revolution.
Shorter GregM … when I said ‘it’s not the courts’ business to be independent agents’, what I meant was ‘it is the courts’ business to be independent agents’, at least that’s what I mean when it suits my argument unless it doesn’t, in which case I mean what I said the first time.
Now you are being slow Ken.
It’s not just my argument, but that of the NSW Law Reform Commission, and plenty of others. The way our legal system operates is that judges are strictly bound by statute and precedent. A judge could not, for example, refuse to have a case proceed in his/her court because he/she doesn’t like the law. Likewise the judge must instruct the jury on the facts of the case as the law applies to those facts, whether or not the judge agrees with that law.
However, as the NSWLRC paper points out our system provides to juries a latitude in considering the facts and the law inreaching a verdict that is not allowed to judges. I’m surprised that any of this is news to you, given that that’s been the way our legal system has operated for about the last three hundred years. Perhaps, though, you don’t have access to relevant data, though it only took me about two minutes with google to find the NSWLRC paper.
Definition of “terrorist organisation” being either by listing of the Attorney General or by determination of the court ad hoc. The question being whether or not it was “terrorist” at the time the sim card was given, not applied retrospectively ie an organisation which became a terrorist organisation.
“Intentionally provides” ie the prosecution must prove beyond reasonable doubt that he intended to help an organisation, not his cousin.
The recklessness is attributable to knowing the organisation was terrorist, not that the act of giving the sim card has a test of recklessness.
All sounds rather tenuous to me. Do not “consort” with your cousin and give him your sim card just in case he turns out to be a criminal and joins an organisation later held to be terrorist with a cell phone found at the scene of the crime containing the sim card.
IN other words don’t buy your cousin a pair of shoelaces folks, he might rub in gunpowder and use one as a fuse to a bomb years later and according to the AFP’s interpretation of the Criminal Code it will be your recklessness for not having a crystal ball to see the future..
One thing I have been wondering about, Peter, is that he is said to have given his SIM card to his cousin before he left for Australia. As he is not an Australian citizen, nor I think a permanant resident, the action is said to have taken place outside Australia and the terrorist attack to which it is allegedly linked occurred outside Australia, what is there that attracts the jurisdiction of an Australian court?
That’s strange, the corporate media ranted incessantly about the Troubles in NI being a conflict between Catholics and Protestants. Anyone attempting to explain the conflict in terms of nationalism and class was ignored as a Left-wing loon, but, there you go…
As for the good ol’ jury system…hmmm…reminds me of the Rodney King trial…
No it wasn’t. But I’m fairly sure that the number of Nazi party members who held some allegiance to one or other Christian church was far greater than those who described themselves as Nordic paganists. Not to mention the fact they were raised in a Christian society.
It’s good to know that this ridiculous judicial oversight concept can be dispensed with when it suits the authorities. Seems that Haneef was granted bail, but our intrepid and highly competent government simply cancelled his visa and locked him up anyway.
Makes you proud to be an Australian.
Here’s your answer:
It doesn’t matter where.
It hardly matters what. (But as far as I can see, there is no definition of what constitutes a “preliminary act”. I guess it’s up to the court to decide what is a “preliminary act”.)
He isn’t in the strongest position, he shared a flat with his cousin for 2 yrs. His cousin shortly thereafter carried out a terrorist attack.
And he had no idea what his cousins were up to?
Yeah Right!
Why isn’t Marina Oswald in jail?
Why aren’t Dolly Downer, JWH and most of the AWB executives in jail?
Or, he was your cousin, lived in your pub Steve, got sick from drinking beer mixed with everything else from the drain trays, and thereafter carried out a terrorist attack on a brewery?
Wots that you say, you had no idea that he blamed the brewery for the sorry state of his intestinal self rejection???
Thanks Katz for answering Greg’s question. The extraterritoriality of legislation does seem presumptuous. One other example I can think of Greg is legislation related to people here who have been on sex tours having it off with under-aged kids abroad. I guess it’s all about the law catching up with globalisation!
As so many in the blogosphe have said, it’s obvious he’s a terrorist, or he wouldn’t have been arrested in the first place.
And besides, as SATP said, he lived with his cousin who is a terrorist. He must have known what he he was up to.
This is why Ivan Millat’s relos are all doing life after being convicted of being serial nurderers, just like he is.
Oh, wait …
This country becomes more Alice in Wonderland with each passing day.
Especially since the poor bastard has now been locke dup in again, in detention, for “failing the character test”, as Kevin Andrews so delightfully put it.
Who needs anti-terror laws, anyway, when you can just lock people up on “character” grounds?
Jesus.
We shouldn’t be at all surprised. It is well known that medicos have occupied the upper levels of Islamist terror organisations for decades.
For those bewailing the Hippocratic Oath, I can assure you that in a choice between 5th century BC Athens and 7th century AD Mecca, these people will always side with the more modern movement.
“It is well known that medicos have occupied the upper levels of Islamist terror organisations for decades.”
Ergo, all Muslim doctors are terrorists.
Ipso facto, it makes you wonder why he was let into the country in the first place.
I’m sure that last comment’s all your own work cut’n'paste. What a goose.
It is well known that plagarists have occupied the lower levels of national IQ test results for decades…
Perhaps JohnG you should recommend amendments to the Migration Act in regard to sponsored visas. I could think of a title for you:
The Wog Doctors (Terrorist Suspicions) Visas & Employment Bill 2007 (Cth)
What brilliant advertising we have made for foreign doctors in country areas where Sri Lankan, Bangladeshi, Pakistani and Indian doctors (among others) are sometimes the only ones in town.
(And let’s not forget Stalin and the “Doctor’s Plot”)
“What brilliant advertising we have made for foreign doctors in country areas where Sri Lankan, Bangladeshi, Pakistani and Indian doctors (among others) are sometimes the only ones in town.”
Just as long as they are not Muslims.
As a former lawyer working in criminal prosecution, I have to say I’m completely outraged by the decision to revoke Dr. Mohammed Haneef’s visa.
What evidence magically appeared in Kevin Andrew’s hands that rationalised this revocation, but not early enough mere hours before to justify an appeal against the bail decision—a decision, no less, that required a finding of “exceptional circumstances” to give bail, and the magistrate found that these “exceptional circumstances” existed as a result of the weakness of the Crown case.
This is the most extraordinary attack on the rule of law and natural justice. The law doesn’t give the result the Government wants—despite the use of the most draconian legislation this country has ever seen—so they don’t bother appealing. They know that the case is so weak, they’d lose. So instead, they sheet the case over to Immigration law, where the Minister can, with a stroke of the pen, take away most rights the defendant has.
Oh, and how very handy for Kevin Andrews that he can’t divulge the reasons for detaining Haneef.
This is an obscenity, a desperate act by a desperate government seeking to find a wedge issue to capture Rudd. Rudd isn’t going to scream about it, as he ought, morally, because this isn’t an issue going to capture the average voter’s attention, and right now, that’s all that matters.
Shame on both their houses.
This is a very dark day for Australian values. It simply disgusts me.
Agree wholeheartedly Lomandra. I loved the grilling by reporters at smh:
http://www.smh.com.au/news/national/haneef-detained-after-bail-win/2007/07/16/1184438190629.html
More like direct responsibility to LNP fortunes to seek another wedge. So coincidental that Haneef failed the character test only after being granted bail. (To do so beforehand probably being a contempt of court)
An association not proven and remember the criminal conduct occurred well AFTER Haneef’s last contact. This is simply a ministerial declared guilt (retrospective) of consorting BEFORE the act and before establishing criminality in an Australian or foreign court.
I am totally disgusted. Mr Andrews has “satisfied” many that the government of this nation will trash any notions of law and natural justice for their own self interest. (Note that the AFP never found the authoriser of the leaked ONA secret report of Andrew Wilkie’s ONA. Yes, looking at you and your department Dolly)
How could a jury not be influenced by (again) that blaring news report:
Not related indeed Mr Andrews, your actions and the ensuing court case. Watch for the defence application that the accused cannot now, ever, have a fair trial with a jury potentially poisoned against him with that statement.
My prediction is that Haneef will be deported when the government wakes up to its stupidity in prejudicing a fair trial, and when the Crown case starts to fall over (if it gets that far)
Lomandra, let me introduce you to Egon Kisch, commo, journalist, parachute-less skydiver. Denying people visas and entrance based on association and belief is a *thoroughly* Australian tradition. Anyway, since when have people in the immigration system been able to claim the rights of accused criminals?
All I can say is that no, it’s not, and no, it doesn’t. That’s one of the most incoherent paragraphs I’ve ever read. Is the revocation of Dr. Haneef’s visa a party-political act, or isn’t it? Surely, if it were, Kevin Rudd’s office should be opposing it.
Peter Kemp: WTF? What does Andrew Wilkie have to do with anything?
Selective prosecutions by the AFP, optional prosecutions to benefit—-can you guess?
Don’t remember how Mr Keelty did a reverse dive with pike when Ratty hauled him over the coals on the causes of terrorism???
Dr. Haneef: as yet unprosecuted by anybody.
Those benefiting: I’m yet to understand.
Mr. Keelty: fits nowhere in the context of the Glaswegian Doctors Plot, as far as I can tell.
“Ratty”: oh for fuck’s sakes, Peter, the world’s not a conspiracy run out of the Lodge.
Sounds to me like we should be all be sending postcards of support to Dr Haneef at VDC. You know, to remind him that he’s not actually Josef K or Gregor Samsa.
Andrews on 7.30 Report sounded about as convincing as he did when he was water-boy for WorkChoices. These people are just filth, although that’s probably giving dirt a bad name.
Fiasco, you are a bit dense sometimes. Just think about it for a moment.
A competent judicial officer has determined that Haneef should be granted bail, after hearing all the evidence that the AFP presented in a closed court.
Unless you are suggesting:
a) Kevin Andrews more knowledge of this area of the law than the magistrate; or
b) Kevin Andrews was privy to evidence not provided by the AFP to said magistrate-
then there can be no other explanation than a political one for denying the doctor his freedom, restricted as it would have been.
Sorry. Temporarily possessed by mad Irish person.
Unfortunately, FDG is correct about the relationship between the treatment of Haneef and “Australian values”.
Public policy continues to carry the traces of the first white settlement at Sydney Cove — a penal settlement administered by martial law.
Executive power was enormous throughout the colonial period.
The continuation of this tradition can be seen in:
1. The enormous and undefined reserve powers of the Governor General.
2. The constant recourse to ministerial fiat, last seen in Kevin Andrews’ quite legal use of his powers.
3. And most recently, the erosion of the independence and scope of competence of the judiciary under the assaults of the Howard government.
All this is as traditionally Australian as poofter bashing.
Really? Charges laid and prosecution pending for aiding a terrorist organisation are just a fiction of our imagination?
You don’t see a connection between government’s, “Laura Norder” and the voters? (Sheesh, I hope I don’t have to spell out Laura Norder’s bra size)
Correct. Just Australia’s Ratty at work for Joe Sixpack Australians.
Andrews was lame-o, and Kerry didnt ask the tough ones ieg “Australians want to understand the law itself, not merely your compliance with its tests – on what basis is he being detained adminsitratively after proper judicial review led to bail?”
“Why arent properly constituted courts privy to the same information you apparently / allegedly possess on the case?”
More broadly – gimme a break. Not even the prosecution is alleging mens rea, or guilty mind. Id have thought that was a relevant fact in relation to bail, and clearly the magistrate did too.
Adrian, I am, as I’ll freely admit, and I have, as I hope you’ll grant me.
I entirely agree. Australian immigration since European contact has always been political, and as far as I as a non-lawyer can understand them, there’s never been any such thing as common law rights for non-citizens to reside in the country. Ask Eugene Goosens—look him up.
That someone has been granted bail on a criminal charge is no exculpation from a possible crime, yes? I certainly wouldn’t have made Christopher Skase out to be a victim of Australio-Spanish persecution in Majorca because DFAT pursued him despite of bail. That Dr. Haneef has been granted bail simply shows that the magistrate found no grounds to detain him on the grounds with which he’s been charged, not that there are no grounds to detain him. I certainly imagine ASIO, who would brief the Immigration minister, are more informed than the AFP.
Personally I think Dr. Haneef’s treatment has been disgraceful, on a professional level, for the gatherers of evidence in the AFP and QLD Police. If it hasn’t been found by now, it’s not there—and I suspect we’re all going to be arguing for the next month about SIM card symbolics.
Everyone:
What a difference a day makes.
Following a failed terrorist attack in another country, Australian authorities detain and interrogate a foreigner whom they feel had worrying links and who did something suspicious. He was detained and interrogated under Australia’s savage new Soviet-style internal control laws however these “laws” are exercised with professional restraint – he is not tortured, he is not subjected to public humiliation. He is brought before a competent impartial Magistrate who determines that he shall be released on Bail subject to several stingent requirements – after all, he will be under close surveillance – and he may have to face Court sometime in the future where he can clear his name or be convicted of some crime or another.
So far so good.
The whole world can see these Australians are very tough indeed but they are also fair; they are people who should be respected rather than loved.
Then, in an instant, this image of a tough no-nonsense approach to terrorism is shattered with the Federal government’s unbelievably ridiculous Immigration stunt. What a farce! What non-tobacco substances were the idiots smoking? Several hours after this colossal boo-boo, none of the culprits have been sacked or forced to resign. Why the delay?
Fiaso da Gama:
Egon Kisch? Indeed. But that’s not an “Australian tradition”, it’s an “Australian moribund elite tradition” …. they are very, very different.
“Imagine” indeed FDG, the generally useless spooks with the sunglasses, (who can’t ever be posted to the Middle East’s fundamentalist countries cos they can’t go without sex and alcohol for more than a week) briefing the Minister Without Briefs.
Such briefings, from our equivalent of the CIA’s Mr Tenet, undoubtedly incorporating a “slam dunk” approach to the truth that our political masters seek.
FDG, the problem I’ve got with that is that the purpose of the Minister having power to revoke someone’s visa and detain them is for their speedy removal from Australia. However Dr Haneef, who, on what we know of his movements before his detention, wanted to speedily remove himself from Australia to be with his wife after the birth of their child and presumably would still want to be with them in India.
Meanwhile Dr Haneef is subject to criminal charges and, as part of that, a Magistrate has considered and granted an application for bail which, if the police were aggrieved by it, they could appeal to the Queensland Supreme Court.
It seems to me that the Minister is improperly interfering in the judicial process. He should not detain Dr Haneef so as to circumvent the Magistrate’s decision, but to achieve the purpose of the Immigration Act, which is the speedy deportation of those who, in this case Andrews says, fail the character test. If Andrews wants to detain him it should be in order to speedily deport him, and if he wants to deport him it should be to his home country, India, where, I understand, no charges currently lie against him since, as far as I am aware, no charges lie against him in the UK.
Is the revocation of Dr. Haneef’s visa a party-political act, or isn’t it? Surely, if it were, Kevin Rudd’s office should be opposing it.
That’s what a wedge is, Vasco.
GregM! GregM!
I’ve found your fascists in Iraq!
http://bebo.com/PhotoAlbums.jsp?ProfilePhoto=Y&MemberId=2211522509
But whoops! Islamo they ain’t!
Haneef an Australian Dreyfus?
No. Much worse.
Dreyfus was tried and convicted in a court of law. As corrupt as the procedings were, he experienced the customary justice system of France.
Haneef, on the other hand, is subject to ministerial fiat. His treatment is a subversion of the rule of law.
Everyone:
One horrifying thing that has come out of this shemozzle is that, for all their savagry, for all the traditional rights, duties and protections that have been smashed by their introduction, the new anti-terrorist laws are in appllication, as useless as an ashtray on a motor-bike.
Parliament should be recalled, the current laws chucked out before they assist terrorism any further and then new workable just laws be passed, laws that actually work against terrorists.