Abusing process

From today’s Crikey! by Greg Barnes.

When the Howard government and its allies in the ALP fell over each other in their mad scramble to pass draconian anti-terror laws, there were some wise heads warning that such legislation would open the door to abuse by law enforcement and security authorities of their powers. Well guess what surprise, surprise its happened.

The decision handed down by NSW Supreme Court judge Michael Adams concerning the case of Izhar Ul-Haque makes for disturbing reading. Its a case of ASIO officers scaring the bejesus out of an individual in their quest for a result.

Izhar Ul-Haque was charged with training with an alleged terrorist organisation in Pakistan in 2003. ASIO interviewed him three times in late 2003, early 2004 about the matter.

Justice Adams chronicles a disturbing level of intimidation and aggression used repeatedly by ASIO to try and break the will of Mr Ul-Haque.

Hows this for example. At 7.25pm on 6 November 2003, twenty or so ASIO and four or five police officers, all in plain clothes, attended with a search warrant at the home where the accused lived with his parents and three brothers. Yes, its not a misprint twenty five or more Federal Police and ASIO officers go to this mans home. What were they expecting to find there a nuclear arsenal?

The boys from ASIO met Mr Ul-Haque and his 17-year-old brother in a railway station car park on that November day. They told Mr Ul-Haque he was in serious trouble, bundled him into a car, took him to a local park and forced him to answer questions. They took his frightened brother along as well an action described by Justice Adams as “highhanded”.

And heres what Justice Adams thought of the spooks taking Mr Ul-Haque to a park: The officers were dealing with a young man of twenty-one years. It is obvious that any citizen of ordinary fortitude would find a peremptory confrontation of the kind described by the ASIO officers frightening and intimidating. Furthermore, the fact that he was being taken to a park rather than any official place would have added an additional unsettling factor. I do not think it can be doubted that this was precisely the effect that was intended.

And despite having no authority to do so, the ASIO officers gave Mr Ul-Haque the distinct impression that he had to cooperate with them and answer their questions. If he did not, he reasonably assumed they might beat him up or take him to another sinister location.

Then the ASIO officers took him back to his home, kept him in his parents’ bedroom and proceeded to interview him again until 3.45 the next morning. None of which impressed Justice Adams who observed, To my mind, to conduct an extensive interview with the accused, keeping him incommunicado under colour of the warrant, was a gross breach of the powers given to the officers under the warrant.

No doubt those commentators like Janet Albrechtsen at The Australian will complain that Justice Adams is an interfering busybody and a dreaded judicial activist. But most sensible people would say thank goodness for gutsy judges prepared to expose rampant abuses of power by the state.
And maybe now our politicians will see with their own beady eyes the post-9/11 monster they have created.

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Niall
14 years ago

t`was always only a matter of time.

Chris Fryer
14 years ago

It is very disturbing where this country seems to be heading. I hope more comes of this and those officers charged.

I just hope things do change when Labour gets in.

P
P
14 years ago

To my thinking this points to the need for a Bill of Rights, also DIAC just released someone improperly in immigration detention after 5 years locked up. Those with the power of ASIO, the AFP and DIAC seem to be trying to convince us of the level of their competence.

Stephen Bounds
Stephen Bounds
14 years ago

Um, let’s have a sense of perspective here.

ASIO and AFP officers use law enforcement tactics that have been used in potboiler crime novels for the last 100 years (“we know you done it”), and suddenly it’s Guantanamo Bay all over again?

The thing that always strikes me about these so-called “abuses of the law” in Australia are how mild they are.

Yes, they broke the rules.
The man is now free because a judge has ruled the evidence inadmissible.
This is how the law is supposed to work!

SJ
SJ
14 years ago

Stephen Bounds said: “Yes, they broke the rules… This is how the law is supposed to work!”

The judge said that they broke the law, not the rules. That isn’t how the law is “supposed to work”, you stupid git.

observa
observa
14 years ago

And if one of the bastards manages to slip through the net there’ll be real hell to pay from ‘most sensible people’, which is of course why our elected representatives of all political persuasions ignore their ‘sensible’ bleatings now.

observa
observa
14 years ago

“Yes, its not a misprint twenty five or more Federal Police and ASIO officers go to this mans home. What were they expecting to find there a nuclear arsenal?”
Yep, blocking off the street and manning the houses next door to keep residents inside and out of harms way as well as manning the fences, so villains won’t hop over them and take hostages or perhaps shoot a little old lady watering the garden, while a few enter the house. Obviously they should have sent a local copper to knock on the door and serve the warrant while his offsider trots off to pick up the burgers.

observa
observa
14 years ago

Crackle crackle…’Code Red eveybody! Forget the Mussies and call for backup! We’ve got a pensioner here ignoring Level 5 water restrictions!’

Doctor Patient
Doctor Patient
14 years ago

Let’s not get all excited about another arcane decision from the legal club. It was only a few short years ago that a man was found not guilty in the Blacktown Local court after being charged with carrying a handgun. His reason for carrying the handgun? Well, in his native haunt of Sarajevo you were considered undressed if you didn’t complete a daily ritual before you left home; wallet, American Express, shirt, trousers and of course a handgun. Perfectly acceptable to our enlightened legal club.

Anyone who puts faith in our legal club and its rulings has loads of trust.

melaleuca
14 years ago

There there Obby. I’m sure all 25 appreciated the overtime.

Gummo Trotsky
14 years ago

It was only a few short years ago that a man was found not guilty in the Blacktown Local court after being charged with carrying a handgun. His reason for carrying the handgun? Well, in his native haunt of Sarajevo you were considered undressed if you didnt complete a daily ritual before you left home; wallet, American Express, shirt, trousers and of course a handgun.

I guess this can’t be the incident you’re referring to, Doctor Patient. Although it turned up in a Google search for “Blacktown court handgun”, the offender was from the Philippines, the case was heard at Penrith Local Court and far from being released on the basis that handguns were normal day wear in his home town of Sarajevo the offender was refused bail and ordered to undergo a psychiatric assessment.

Guess I need to search a little further back than December 16, 2005 – unless you’d care to substantiate that extraordinary allegation yourself. Excuse me if I refuse to believe your little fable until you do.

observa
observa
14 years ago

Whaddya reckon the pensioner would get from the same judge eh mel? Ten to life!

observa
observa
14 years ago

‘If it please your Honour, I was a bit mentally bewildered about the watering times.’

‘Silence or I’ll hold you in contempt! Make sure this dangerously deranged enemy of the public is suitably restrained for sentencing Sergeant.’

derrida derider
derrida derider
14 years ago

Never mind criminal charges (they should happen but of course they won’t). Ul Haque’s solicitor is probably right now briefing a civil law barrister. He should make a packet from the unlawful detention suit.

I’m sorry, I’ve dealt enough with these sort of official clowns that I’d feel much safer if we got rid of most of them, kept our tax money and took our chances with the odd terrorist.

observa
observa
14 years ago

Whoa wait up a bit! They’ll be needed to round up the usual suspects http://www.news.com.au/story/0,23599,22756858-29277,00.html

Gummo Trotsky
14 years ago

Speaking of rampant abuses of power (hat tip to Jeremy, a lawyer.

Doctor Patient
Doctor Patient
14 years ago

GT, I am aware of the case you mentioned but that isn’t the case I had in mind. I’ll have to wade through my newspaper clippings. I’m not in the habit of posting B/S.

Doctor Patient
Doctor Patient
14 years ago

Zoran Mijadzevic yesterday told Blacktown Local Court he carried the gun because he feared for his life following the death of Senior Constable Glenn McEnallay. Mr [Lawrence Lawson] sentenced Mijadzevic to three months in jail and six months’ parole after Mijadzevic pleaded guilty to possessing a prohibited weapon. Mijadzevic yesterday pleaded guilty to flashing his gun during a dispute over a pool table at a Blacktown nightclub in May. About two years ago, Mijadzevic, of Hebersham, organised to have his car stolen because he could not afford the repayments and the people he gave his car to allegedly shot and killed Sen-Constable McEnallay.

magistrate Lawrence Lawson took into consideration Mijadzevic’s childhood growing up in war-torn Bosnia before he escaped to Australia in 1996. “I accept you have had a background where violence during a large part of time is very much a norm,” Mr Lawson said.

Mijadzevic kissed his fiancee goodbye in court and was taken into custody but two hours later he was put back on the streets after appealing against the severity of his sentence.

He paid $1000 bond money and was released on conditional bail.
Copyright News Limited Sep 23, 2003

Ignorance of the law is no excuse. Who remembers that old trope? Working from memory, Mijadzevic was successful in his appeal.

Paradise refound, and grog’s been banished
Tony Koch and Ian Gerard
24jun06

THE 300 residents of picturesque Mapoon on western Cape York have a lifestyle to be envied.

This tranquillity has not been achieved by accident, but through rising from the ashes — literally, according to Mapoon Mayor Peter Guivarra.

“If a petrol-sniffer comes here, he’s given a one-way ticket out of town,” Mr Guivarra said.

Hello Qld’s A-G. Here’s a case of discrimination. Anyone home up there in Qld?

Imagine if you will GT a white petrol sniffer stumbling into the bucolic backwater of Mapoon. Hed be run out of town. What if the people of Tamworth said Sudanese people were predisposed to crime and were not welcome in their town?

What has all this to do with the case mentioned? It merely highlights that the law is a harlequinade.

Gummo Trotsky
14 years ago

Thanks for taking the trouble Dr P. Let’s revisit your first account of this story:

It was only a few short years ago that a man was found not guilty in the Blacktown Local court after being charged with carrying a handgun. (my emphasis)

This doesn’t quite square with the material you’ve provided from your clippings collection:

Mr [Lawrence Lawson] sentenced Mijadzevic to three months in jail and six months parole after Mijadzevic pleaded guilty to possessing a prohibited weapon.

So he wasn’t found not guilty after all – he pleaded guilty, and the magistrate imposed a custodial sentence after taking some of those “mitigating circumstances”, so beloved of defence lawyers, into account. Nevertheless (once again from your clipping):

Mijadzevic kissed his fiancee goodbye in court and was taken into custody but two hours later he was put back on the streets after appealing against the severity of his sentence.

He paid $1000 bond money and was released on conditional bail.

Oh them pesky civil rights! Oh the due process! But how you get from there to your next remark has me stumped:

Ignorance of the law is no excuse. Who remembers that old trope?

Mijadzevic’s lawyer perhaps? Who might have reminded him of that “old trope” while he was trying to convince his client that his best option was to plead guilty and throw himself on the mercy of the court. But there I’m just speculating, on the assumption that Mijadzevic’s lawyer was competent enough to advise him on what was best to do in his (Mijadzevic’s) own best interests. Oh them pesky civil rights! Oh the due process!

Working from memory, Mijadzevic was successful in his appeal.

Your memory hasn’t exactly shown itself as particularly reliable so far, has it? I’ll be interested to see what else you can turn up from your clippings collection on this case.

observa
observa
14 years ago

Waiting until after the election to hand down their judgement. The lily-livered chicken shits!
http://www.news.com.au/adelaidenow/story/0,22606,22765913-5005962,00.html