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So much for Rudd's 'full judicial inquiry'

By Stephen Keim - posted Monday, 29 September 2008

In May of this year, I worked with others on the submissions on behalf of Dr Haneef to the Clarke Inquiry. They were delivered on May 23.

I will draw on those submissions to give you some idea of their main contentions. Of course, as a barrister engaged in the ongoing process of the Inquiry, it is not my role to express personal opinions about the matters contained within the purview of the Inquiry. I am only conveying to you observations and conclusions argued for in the submissions.

Errors, omissions and misleading statements

One of the reasons why Mr Bugg reviewed the case against Dr Haneef was that factual errors in the prosecution had become evident through the media.


The submissions made on Dr Haneef's behalf contain a detailed analysis of the different factual statements made by government agencies against other documents and the now known facts. In carrying out this analysis, we were startled by the degree of factual error that we discovered. Here are just three of the factual misstatements identified in the submissions.

The first is the repeated failure of authorities to communicate the fact that Dr Haneef attempted to ring a UK investigator, Tony Webster, at least four times on the afternoon of the night he was arrested to answer any questions Mr Webster had for him.

The second is the failure, even at this late stage, by the AFP to acknowledge the receipt by them of the Kafeel email which exonerated Sabeel Ahmed of any involvement in or foreknowledge of terrorist activity and, by extension, exonerated Dr Haneef.

The third involved the statement that the SIM card had been found in Glasgow in the burning jeep. A mis-communication in instructions can always occur. What is alarming about this error is that no one corrected the public record until ABC journalist, Raphael Epstein, broke the story six days later. This raises questions about the way the AFP conducted itself in Dr Haneef's case. And it does not explain why the error was allowed to persist in the public mind for another four days until the error was corrected by an ABC journalist.

Ignoring the law

The submissions also seek to test, on the basis of the known facts, the legal validity of the various decisions made concerning Dr Haneef. These include the decision to arrest; the decisions to apply for detention orders; the decision to charge Dr Haneef; and the cancellation of Dr Haneef's visa. I will discuss here only the decision to arrest.

Section 3W Crimes Act 1914, under which Dr Haneef was arrested, requires that the arresting officer hold a reasonable belief that, in this case, Dr Haneef had committed the offence for which he was being arrested.


Part 1C allows, upon a lawful arrest, a person to be detained for very limited purposes. The detention is for the investigation of the offence for which the person has been arrested or another terrorism offence which the investigating officer reasonably suspects the detained person may have committed.

There are several touchstones by which one may judge the decision by the arresting officers to arrest Dr Haneef. Mr Bugg found no reasonable basis to anticipate a conviction on July 27. When Mr Ramzi Jabbour, with the assistance of his superiors in Canberra, made the decision to charge - against the advice of the Queensland Police Service and despite ASIO’s contrary opinion - he chose to charge Dr Haneef with a less serious offence than the offence for which he had been arrested. The difference was that the charge only alleged that Dr Haneef was reckless about whether the organisation to whom he had given his SIM card was a terrorist organisation. The offence for which the arrest was made alleged that Dr Haneef knew that the organisation was a terrorist organisation. Mr Jabbour, therefore, concluded that the more serious offence, the subject of the arrest, was not even remotely available. He must have concluded that recklessness rather than knowledge was the most that could be suggested about Dr Haneef's state of mind.

The analysis contained in the submissions suggests that the arresting officers had very little information when they arrested Dr Haneef. They may have been suspicious that he was leaving Australia (despite the fact that he was travelling in his own name to his home in India, having arranged seven days leave from his job and made repeated attempts to contact a UK investigator who, he understood, wanted to speak to him). But whether that amounted to a reasonable belief that he committed the offence for which he was arrested is a very different question.

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This article is an edited version of a talk given by the author - The Clarke Inquiry in Progress: Tentative Observations for Reform, notes for a talk at the Federal Criminal Law Conference, at the Hilton Hotel, Sydney on September 5, 2008. Read the full article here (PDF 132KB). First published at in September 2008.

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About the Author

Stephen Keim has been a legal practitioner for 30 years, the last 23 of which have been as a barrister. He became a Senior Counsel for the State of Queensland in 2004. Stephen is book reviews editor for the Queensland Bar Association emagazine Hearsay. Stephen is President of Australian Lawyers for Human Rights and is also Chair of QPIX, a non-profit film production company that develops the skills of emerging film makers for their place in industry.

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