An Innocent Man Would be in Jail

This is an extract from a speech given at newmatilda.com‘s launch party on 6 February.

As a journalist reporting on the Mohamed Haneef saga since shortly after his arrest at Brisbane International Airport on the night of 2 July, I have been privy to legal strategies, towering triumphs, thumping disappointments, and challenges to the personal integrity of lawyers Stephen Keim and Peter Russo. The attacks came from Australia’s most powerful politicians and public servants.

It has been a rare privilege to document the extraordinary twists and turns of a case that is to be dissected by a Royal Commission under the new Rudd Government.

Many here tonight know the story. I’ll summarise a few salient points.

Within days of Dr Haneef’s arrest, his lawyer Stephen Keim became aware that law enforcement sources had, as Stephen says, "campaigned remorselessly and anonymously, to destroy Dr Haneef’s reputation in the community".

Keim says, and I quote: "Even though they knew from the conclusion of the first interview on the afternoon of 3 July that the case against Dr Haneef was weak to the point of non-existence, these sources continued to cause leaks to appear in the papers stating things that they must have known were untrue or, at best, misleading. And cabinet ministers, official police spokespersons and even the Federal Labor Opposition allowed themselves to be dragged into the debate making comments that did little to protect Dr Haneef’s reputation."

I visited Keim on the evening of Monday 16 July, in his modest office at Higgins Chambers in George Street, Brisbane.

We had already chewed up hours talking on the telephone before and after Haneef was formally charged – early on Saturday 14 July – with supporting a terrorist organisation by giving a second cousin his old mobile phone SIM card with its unused credit.

As the SIM card was not deployed as a trigger for anything except free chats on a phone plan that had months to run when Haneef left the UK to work on the Gold Coast, the charge seemed absurd.

The surprise intervention of then Immigration Minister Kevin Andrews in cancelling the doctor’s visa had over-ridden the criminal justice system. Keim suspected a serious injustice. He believed his client’s freedom and well being were "now being decided by political decisions made by the Executive". He resolved to confront it even though it meant going out on a limb.

He handed me a thick document, Haneef’s 142-page record of interview with the police. It was a powerful chunk of evidence. I read it in another room late into the night while nursing a beer, then handed it back. Near the end of the record of interview, every word neatly transcribed by the police, Haneef, who comes across as a bewildered patsy guilty of nothing except being distantly related to a bungling alleged terrorist in the United Kingdom, says: "I haven’t done any of the crimes. And I don’t want to spoil my name and my profession."

The following afternoon after weighing the pros and cons, Keim gave a complete copy of the document to a taxi driver and told him to deliver it to me in The Australian‘s Brisbane office. Keim knew exactly what he was doing. He also understood there could be adverse ramifications for himself.

He said afterwards: "I had no doubts that this was lawful; ethical; in my client’s best interests; and the right thing to do. I knew the action in releasing the transcript would be controversial. I knew criticism might descend on those who were thought to be responsible. I knew that Peter [Russo] and Dr Haneef were under enough pressure, already. So, without telling anyone else at all, I made the decision and sent a copy of the transcript by taxi … the public would have their facts."

Contrary to selective leaks by police, the record of interview showed how falsehoods detrimental to Haneef had been put before the Magistrates’ Court by a Commonwealth prosecutor, acting on advice from the police.

The record showed the AFP behaving, as the then Premier Peter Beattie put it, "like Keystone Kops", and the politicians as shameless opportunists. Its release provoked furious responses from the AFP and the Howard Government. Keim’s critics accused him of breaching the rules for barristers, potentially putting his career in jeopardy. As the AFP’s case went pear-shaped there were top level calls for the respected lawyer to be punished.

Keim said: "I do have a very, very strong opinion that this debate is something that could affect the lives of our grandchildren and so I felt very passionate that this debate be conducted on the evidence and not on some skewed version of the evidence."

"How can (the Government) be concerned about my release of a document in full, with all its warts, good and bad as far as my client is concerned, to a journalist who was free to report it, and not be concerned about the leaking of documents the leaking of material from the same document in a way that was skewed and intended to make the case look stronger?"

Haneef, the beneficiary of Keim’s bold step, was freed 10 days later, and effectively exonerated after facing a possible 15-year prison term. He remains in India, in limbo, and is looking forward to testifying at the Rudd Government’s first Royal Commission.

Now, I readily agree that Commissioner Mick Keelty has a very difficult job. I readily accept that cases go badly after appearing extremely promising. I know from my own experience that mistakes are inevitable. But I believe that accountability, and a willingness to admit and apologise for errors, are vitally important in a democracy – particularly when you are the top cop. There is no evidence that Keelty understands this.

Worse, the AFP is now promoting a blindingly-obvious double standard which, in my view, represents an assault on democracy.

Most of you will be aware that Stephen Keim was the subject of a detailed complaint from the AFP for his actions in ventilating the truth. The complaint, which could have resulted in Keim being struck off as a barrister, was dismissed last week by the Legal Services Commission. The dismissal of the complaint was a great relief.

It seems to me that the AFP becomes most bitter and twisted about the leaks which embarrass the AFP.

The controlled leaks, the leaks the AFP manages and massages, are apparently okay by the AFP because they show the AFP in a positive light – and they show the suspects, some of whom have not even been charged, as dreadful criminals.

But heaven help those people behind leaks which go against the AFP.

A little over a decade ago, my sister Kate and her husband Paul Whittaker, who is now the Editor of The Australian, had their home raided by AFP officers.

Their home computer, documents and other household items were carted away.

Paul was threatened with being held in contempt and imprisoned indefinitely unless he gave up a source for a story he had written for The Courier-Mail, where he was then working as an investigative journalist. The AFP threatened to shut down the newspaper’s printing presses.

To Paul’s great credit, he told the AFP to shove it. Paul protected his sources who had given him confidential documents showing that the AFP had run dead on a high profile political investigation.

Keelty should remember the episode well. He was the Queensland officer in charge and he played a key role in the campaign to squeeze and pressure Paul for his sources.

As a journalist and a citizen I find it difficult to reconcile the effrontery of the AFP in seeking to punish sources of truth, given the AFP’s certain knowledge that the AFP itself is behind controlled leaks to which it turns a blind eye.

I am not aware of the AFP raiding the homes and seizing the computers of police officers to get to the bottom of the mischievous leaks relating to Dr Haneef.

I am not aware of anyone in the AFP or the Queensland
Police Service being held accountable for the misinformation which was peddled in this watershed case.

This double standard is curious. It is disturbing.

As a journalist, I will never give up a source. But I am left wondering whether police and security agencies that leak false nonsense, and then attempt to destroy people who leak the truth, skate dangerously close to a moral edge.

Should such duplicitous behaviour be rewarded?

Or should journalists say: Enough. Leave our sources alone or else?