criminal law: November 2007 Archives

The Daily Telegraph reports that the UN Committee against Torture have weighed in on the Taser debate, saying that 'The use of these weapons [i.e. Tasers] causes acute pain, constituting a form of torture'

Nic Suzor has been giving Taser incidents a lot of coverage on his blog of late, there's not a lot that I can usefully add to what he's written at this point in time.

The Sydney Morning Herald and other outlets are reporting that the Sydney man who made a 'bootleg' recording of the Simpsons movie with his mobile phone, uploaded it to the Internet, and was subsequently charged with two criminal offences for so doing, has pled guilty and been fined $1000.

It's a bit of a joke really -- not because his punishment was so low, but because it shows up all the claims that the government was making about the copyright infringement notice scheme as a low-cost, low-hassle alternative to the 'traditional' methods of charging people and bringing them before a court.

This guy was fined $1000.  If, instead of being charged with two copyright offences, he was given two infringement notices, he would have had to pay 12 penalty units for each one, with a penalty unit being worth $110, for a total of $2640.

That's right -- this villainous scourge of the motion picture industry, whose Crimes Against Hollywood were so great so as to cause the Attorney-General to weigh in, saying how good Australia's copyright laws were, and how seriously we take these issues, went to court the 'traditional' way and paid less than half of what he would have paid if he'd been given infringement notices.

This really gives the lie to the government claims that the fines associated with infringement notices would be less than if people took the matter to court.

It won't be long before MIPI, AFACT, and their ilk start bleating about Australia being a 'banana republic'.  Again.

Many news outlets are reporting that a 'terrorist' prosecution in NSW has fallen on its arse because the court ruled evidence obtained in certain interrogations to be inadmissible, because of 'misconduct' by ASIO and the AFP.  But it's only when you read the judgment -- R v Al-Haque [2007] NSWSC 1251 -- that you find out exactly how egregious the conduct of the ASIO officers was.

I encourage you to read the judgment in full.  The high points are that three ASIO officers:

• Had no warrant for the arrest of the accused, or any lawful authority to detain him;
• Confronted the accused (a 21 year old) in the car park of a train station at night;
• Told him:
• that he 'was in serious trouble' and that 'you need to talk to us and need to talk to us now';
• that they 'were doing a very serious terrorism related investigation' and that 'we require your full cooperation';
• that they were taking him 'somewhere to have a private discussion';
• Then took the accused by car to a public park (as opposed to, say, a police station!);
• Told him:
• 'you're in a substantial amount of trouble. We are conducting a very serious terrorist investigation at the moment and that investigation has lead us to you. We have many means of investigation and we hold considerable information about you. What we now require from you is your full co-operation with ASIO in resolving the matter by being honest with us';
• 'we can do this the easy way or we can do this the hard way. Either you should co-operate with us or there'll be consequences for you, and it's in your own benefit that you keep talking to us'
  

The list goes on.  Adams J criticised (at [52]-[54]) the evidence of one of the ASIO officers involved as evasive and dishonest.  His Honour found that:

• The ASIO officers deliberately used language that suggested they had lawful authority to detain the accused and to require him to answer their questions; (at [34])
• The accused 'was intentionally given to understand that he was under an obligation to accompany the ASIO officers and answer their questions'; (at [27])
  
• The ASIO officers in fact detained the accused, although they knew they had no authority to do so; (at [35])
• The accused 'believed he was under arrest and that if he did not comply with what the officers asked him that they would either use physical violence or take him to a more sinister place for interrogation or otherwise do something else to his family or him'; (at [35])
• The ASIO officers committed the common-law misdemenour (or the tort) of false imprisonment, and the common-law crime of kidnapping, as well as trespass (for other conduct not described above); (at [57]-[60] and [62])
  
• The ASIO officers knew that their conduct was unlawful and 'were perfectly well aware that they were not entitled to detain [the accused]' and that '[t]heir conduct was grossly improper and constituted an unjustified and unlawful interference with the personal liberty of the accused'; (at [61])
• 'The impropriety of B15 and B16 was intentional and calculated to produce the very admissions that were made. It was grave. There is no suggestion that the officers acted contrary to ASIO protocols and good reason for thinking that they did not.' (at [105])
  

The gallant men and women saving us all from terrorism just can't get a break these days.  First the Victorian Court of Appeal quashed the convictions of 'Jihad' Jack Thomas, because overseas officials and a mysterious American (whom he believed to be a CIA agent) had threatened him with being shipped off to Afghanistan to be tortured by having his testicles twisted, or threatening to send people to Australia to rape his wife.

And then Mohamed Haneef gets off the hook because they had no evidence against him.  Not that that little fact stopped them from telling the courts otherwise.  And you never know -- maybe if they'd kept him locked up without trial for a few years, he might have confessed anyhow and saved the government the hassle of that whole 'burden of proof' and 'beyond reasonable doubt' stuff.  It worked for David Hicks!

And now this.  Adams J even had the gall to quote (at [60]) the judgment of that pinko commie Kirby J in Ruddock v Taylor [2005] HCA 48: ([137]-[139])

[The tort of false imprisonment] reflects the fundamental interest of the common law in protecting individual liberty and freedom of movement.  As Fullagar J observed in Trobridge v Hardy:

The mere interference with the plaintiff's person and liberty constituted prima facie a grave infringement of the most elementary and important of all common law rights.

This concern is especially significant in respect of a claim for wrongful imprisonment made against members or officers of the Executive Government. It is a fundamental principle of Australia's constitutional law that the executive may not interfere with the liberty of an individual without valid authorisation. In Re Bolton; Ex parte Beane, Deane J explained:

The common law of Australia knows no lettre de cachet or executive warrant pursuant to which either citizen or alien can be deprived of his freedom by mere administrative decision or action. Any officer of the Commonwealth Executive who, without judicial warrant, purports to authorize or enforce the detention in custody of another person is acting lawfully only to the extent that his conduct is justified by clear statutory mandate. ... It cannot be too strongly stressed that these basic matters are not the stuff of empty rhetoric. They are the very fabric of the freedom under the law which is the prima facie right of every citizen and alien in this land. They represent a bulwark against tyranny.

When will these pesky judges realise that the rules have changed, and that all pre-11/09/2001 authorities on the rights of individuals against the government are no longer good law?  We're at war, people!  Sacrifices need to be made.  Civil liberties are an outdated concept, and a tyrannical surveillance state is preferable to a risk of being killed in a terrorist incident which is statistically about the same as the risk of being killed by lightning.

Maybe once Peter Faris QC has his way and the use of torture is legalised, they'll be able to get confessions from all these innocent people and make them stick.  Then we can all feel safer.

(For the avoidance of doubt, the above several paragraphs are, of course, sarcasm)

I hope that Ul-Haque sues the government, and the agents who kidnapped him.  I also hope that ASIO and the AFP once and for all get the message that coercing confessions is morally and legally wrong and the courts will slap them down where they do it.

But I doubt they will.