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The Prince of Denmark defence

By Evan Whitton - posted Monday, 1 July 2013


Juries sometimes acquit because they believe the charge is unfair, selective,  against the public interest and so on. Defence lawyers are not allowed to say that, but in appropriate cases they can hint: where is the other guy? This is called the Prince of Denmark (POD) defence. Hamlet was Prince of Denmark. If someone significant is absent, it is said to be like staging Hamlet without the Prince of Denmark. The POD defence is not to be confused with the SODDIT (Some Other Dude Did It) defence, which is usually an attempt to shift the guilt to an innocent person. A few examples, keeping in mind that:

·       A cover-up of a crime is a crime: perversion of the course of justice.

·       Failure to investigate a crime can amount to a cover-up.

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Where is John Wren?

An organised criminal, John Wren (1871-1953), was the main character in Frank Hardy’s novel, Power Without Glory (1950), a lightly fictionalised and largely accurate account of dubious types in Melbourne. Wren (called West in the novel) used his political power to have the authorities charge Hardy with criminal libel on the ground that it was false to suggest that Wren’s wife, Ellen, had an affair with a bricklayer. Regardless of the truth, Hardy was almost certain to go to prison. Libel law in England and its former colonies (except the US since 1964) has been heavily rigged against defendants since 1265; doubly so since Defoe invented modern journalism on 19 February 1704. At Hardy’s trial in June 1951, John and Ellen Wren did not give evidence, either because they refused, or because the prosecution did not dare to let them be cross-examined. Hardy’s lawyer, D. M. Campbell KC, was thus able to ask the jury: “Why weren't John Wren senior and Ellen Wren called?” The jurors retired at 12.59 pm on June 19, had lunch; and came back at 2.17 pm to give their verdict: not guilty. The applause lasted for 15 seconds.

Where is Kevin Humphreys?

In September 1978, The [Sydney] Daily Mirror reported that a policeman had told a parliamentary committee that Kevin Humphreys, President of the Australian Rugby League, had run an illegal gambling (two-up) operation. Humphreys, who was later found guilty of theft, sued the Mirror for libel. At the trial in April 1981, Humphreys’ barrister, Frank McAlary, said the Mirror implied that Humphreys was involved in organised crime and had police protection.  Humphreys did not give evidence. Michael McHugh, for the Mirror, said it must be a long time, if ever, since a person like Humphreys was not prepared to go in the box and give the lie to what had been published about him. The jury took 20 minutes to find against Humphreys.

Where is Mrs Thatcher?

In July 1982, during the Falklands War, an Argentine light cruiser, the General Belgrano, was outside a defined exclusion zone when Prime Minister Margaret Thatcher personally ordered a submarine to sink it; 322 sailors, many of them cadets, were killed. In 1984, a senior civil servant, Clive Ponting, came on documents showing that the Thatchist regime had lied about the incident. He sent the documents to Tam Dalyell MP in July, and was charged with a breach of the Official Secrets Act 1911. At his trial in February 1985, Ponting’s defence was that he acted in the public interest. The judge, Anthony McCowan, summed up for a conviction; he told the jury that the public interest is what the Government says it is. That must mean it is in the public’s interest to be lied to by politicians. That figures; judges believe it is in the public interest for lawyers to lie to witnesses. Ponting took his toothbrush and shaving gear. The jury took about two hours to find him not guilty.

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Where is Bjelke?

Johannes Bjelke-Petersen, Premier of Queensland 1969-87, ran an extortion racket. In 1989, Channel 9 reported that Les Thiess, who owned a construction business, had bribed Bjelke-Petersen to get government contracts. Thiess sued for libel, but Bjelke-Petersen did not go into the witness box. Ian Callinan, for Channel 9, did not mention an arcane Elizabethan drama; he merely told the jurors they might think it was like a play in which a major character did not appear. The jury found that Thiess had bribed Bjelke “on a large scale and on many occasions”.   

Where are the suppressors?

In 2003, Allan Kessing, a Customs official at Sydney’s privatised airport, reported that some Customs staff were drug-runners and thieves. His report was suppressed.  In 2005, someone gave Kessing’s report to a newspaper. Prime Minister John Howard’s Australian government spent $200 million to (unsuccessfully) improve security at the airport, and charged Kessing with whistleblowing.  At his trial in 2007, the judge told jurors not to take the public interest into account. They were initially split, but eventually found Kessing guilty. The judge gave him nine months suspended. In March 2013, it was revealed that Customs at the airport was still infiltrated with organised criminals. Kessing remained a convicted criminal.

Where are Obama and the Justice Department?

In the US, there is a Prince of Denmark defence for almost any crime, including murder. A few recent examples only:

·       When Barack Obama became President in 2008, he said he wanted to look forward, not back. The Justice Department did not charge anyone from the previous administration with torture.  

·       Charges were not laid against people on Wall Street partly responsible for a global financial crisis.

·       The department offered no demur when Obama’s agents killed an unarmed man, Osama bin Laden, or to Obama’s claimed right to use drones to kill anyone he deems suitable.

Where are the Honkers and Shankers?

In 1971, President Richard Nixon launched a “war on drugs”. The net effect was to make drug-running more profitable, and to fill US prisons with people found in possession of as little as leaf of marijuana.Drug cartels blatantly laundered money through Mexican branches of the Hong Kong and Shanghai Bank via boxes constructed to fit the exact dimensions of tellers’ windows. The boxes were daily used to deposit hundreds of thousands of dollars into a single account.  The bank eventually admitted it had laundered billions of dollars for Colombian and Mexican drug cartels. In December 2012, the US Justice Department fined the bank $1.9 billion, a sum about equal to its income for five weeks, but did not charge anyone with a crime.   

Where is The New York Times?

 A US soldier, Bradley Manning, whistle-blew government data because he was ashamed that soldiers in Iraq deliberately killed civilians, and because he wanted “to make the world a better place”. The material was eventually published by The New York Times, presumably also in the public interest. Manning was arrested in May 2010 and charged with assisting the enemy, which carries the death penalty. For nine months, he was tortured via forced nakedness, sleep deprivation, sensory deprivation, and stress positions. Unfortunately for Manning, he does not have a civilian jury, and it would probably be useless to hint to the military court that he could be found not guilty because no one at The New York Times was arrested, charged with assisting the enemy and tortured.     

Where is the Assassination Bureau?

In January 2012, John Kiriakou, a CIA operative, was charged with leaking information about CIA torture, including the name of a covert CIA officer. His crimes, if any, were minuscule by comparison with the CIA’s over 60 years. For example:

In 1951, Allen Dulles initiated a section of the US Central Intelligence Agency which has run drugs, colluded with gangsters, and destroyed foreign governments. Bill Blum, former State Department official and author of Rogue State, says the CIA “has attempted to assassinate more than 50 foreign leaders, many successfully”. Kiriakou acted largely in the public interest but jurors are eliminated from about 90% of US criminal cases by what is effectively blackmail. Prosecutors offer suspects a no-risk plea bargain: accept some prison time or possibly go down for several years or life. In January 2013, Kiriakou accepted 2 ½ years.

 

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Evan Whitton is a legal historian. His Our Corrupt Legal System details the origins of the system used in England and its former colonies. Dr Bob Moles, an authority on miscarriages of justice, said it “should be required reading on Introduction to Law courses in all law schools”. The book can be downloaded for free at .net.au/whittonhome.asp. Also at Amazon and books.google.com.au/ebooks.



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About the Author

Evan Whitton is a former reporter who became a legal historian after seeing how two systems dealt with the same criminal, Queensland police chief Sir (as he then was) Terry Lewis.

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