'Charge suspects to test terror laws'
The Australian November 13, 2007 01:04am AEDT
Sally Neighbour | November 13, 2007
A SENIOR counter-terrorism officer with the Australian Federal Police has testified that police were directed to charge "as many suspects as possible" with terrorism offences in order to test the new anti-terrorism laws introduced in 2003.
The admission was made by federal agent Kemuel Lam Paktsun, the senior case officer on the Operation Newport investigation that led to the arrest of Sydney medical student Izhar Ul-Haque, whose trial was sensationally dismissed in the NSW Supreme Court yesterday.
Mr Lam Paktsun's startling testimony came during a pre-trial hearing on October 24 that has not previously been reported, when he was questioned about the circumstances of Mr Ul-Haque's arrest in April 2004.
"At the time, we were directed, we were informed, to lay as many charges under the new terrorist legislation against as many suspects as possible because we wanted to use the new legislation," he testified.
"So regardless of the assistance that Mr Ul-Haque could give, he was going to be prosecuted, charged, because we wanted to test the legislation and lay new charges, in our eagerness to use the legislation."
The frank admission was made under cross-examination during a hearing to test the admissibility of two AFP interviews conducted with Mr Ul-Haque, who was charged with receiving training from the terrorist organisation Lashkar-e-Toiba in January and February 2003.
The case against Mr Ul-Haque was dismissed yesterday in the NSW Supreme Court when judge Michael Adams found the conduct of two ASIO officers who interviewed Mr Ul-Haque prior to his formal AFP interviews had been "grossly improper and constituted an unjustified and unlawful interference with the personal liberty of the accused".
The case of the promising young medical student arrested, charged and almost tried as a would-be terrorist is the latest in a litany of failed terrorism prosecutions in which the Australian authorities' determination to obtain convictions appears to have outweighed their commitment to do so in strict accordance with the law.
Mr Ul-Haque was a polite, studious teenager excelling in high school when his family moved from Pakistan to the middle-class Sydney suburb of Glenwood in 1999 to complete their children's education. After winning a scholarship to attend North Sydney Boys High School, Mr Ul-Haque distinguished himself as an "outstanding student", earning a university entrance score of 99.7 per cent to gain a place in the University of NSW medical school.
"After 36 years of teaching, one can identify the gems among the young people; Izhar is one of those gems", his former principal Bernard Newsom testified in an affidavit in 2003.
But the Ul-Haque family's dream of a prosperous new life in Australia turned to disappointment in the aftermath of the September 11, 2001, attacks in the US and the Bali bombings in October 2002.
Amid a backlash against Muslims, Mr Ul-Haque's father was unable to find work and returned to Pakistan. Distracted from his studies, Mr Ul-Haque failed his second year of medicine.
In late 2002 he wrote to his family: "I'm fed up with Westerners. Western patients look at me as if I'm a frog. They don't wish to speak English to me. How can I spend five to six years with them?" Disheartened and frustrated, he was ripe for recruitment, when he was targeted by a fellow immigrant from Pakistan, Faheem Khalid Lodhi, who is appealing against a 20-year sentence handed down last year for facilitating terrorist acts.
When the older man invited him to travel to Pakistan to join the jihad, Mr Ul-Haque readily agreed. He wrote again to his family, saying that he was planning to join LET to fight the Indian army in Kashmir and that, God willing, he would die a martyr.
Appalled by his actions, Mr Ul-Haque's brother and father followed him to the LET camp to persuade him to come home.
Mr Ul-Haque finished the 20-day beginners' training course, which he later described as being "like kindergarten" and decided, to his family's relief, that he was "physically incapable" of being a jihadist. "I decided I wanted to be a doctor, not a fighter," Mr Ul-Haque later told the Australian Federal Police.
When he flew back to Australia, Mr Ul-Haque was stopped by Customs officers, who found in his luggage diaries and notes recording details of his training. After a lengthy interrogation, Mr Ul-Haque was allowed to go. LET had not been proscribed as a terrorist group at that time, and the authorities were seemingly satisfied with Mr Ul-Haque's account of his three weeks' training.
Nothing more happened until November 2003, after the arrest and deportation of the French terrorist suspect Willie Brigitte. The Australian authorities had been left red-faced by their failure to pick up on Brigitte's presence in Australia, and were thoroughly investigating all of Brigitte's Australian contacts, including the Pakistani immigrant who had taken Mr Ul-Haque to the LET training camp. On November 6, 2003, on his way home from university, Ul-Haque was stopped by three ASIO officers who had waited for him in a carpark near Blacktown railway station.
"You're in serious trouble," an ASIO officer code-named B15 told Ul-Haque. "You need to talk to us and you need to talk to us now."
The ASIO officers interviewed Mr Ul-Haque at length in a park near the railway station and later in his home, in a manner described by Justice Adams as intimidating, deceptive and constituting a "gross breach of powers". Mr Ul-Haque was not offered a lawyer, nor informed that he was not obliged to answer any questions. "They were aware that what they were doing was unlawful," Justice Adams said.
After questioning Mr Ul-Haque until 3am while his home was being raided, the ASIO officers handed him over to the federal police for a formal record of interview.
Justice Adams found: "I am satisfied that when he said he believed he was under arrest and that if he did not comply with what the officers asked him 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, the accused was telling the truth. Furthermore I think that this state of mind was intentionally instilled."
Mr Ul-Haque was interviewed by the AFP on November 7 and 12, 2003, and in January 2004, and repeated the admissions he had made in the earlier illegal ASIO interviews. The AFP interviews formed the basis for his arrest on a charge of training with a terrorist organisation, which was hailed by the Howard Government as a vindication of its "tough on terror approach".
Foreign Minister Alexander Downer announced: "This is exactly what the federal police should be doing, making absolutely sure that people are properly protected in this country."
Yesterday's verdict and the admission by Mr Lam Paktsun that the police were under pressure to mount terrorism prosecutions raises disturbing questions about the lengths Australian authorities have been prepared to go to obtain convictions in a highly politicised "war on terror".
Mr Ul-Haque's case echoes a string of earlier failed prosecutions.
In March 2005, Sydney man Zak Mallah was acquitted on terrorism charges after a trial in which police were found to have acted illegally and improperly in obtaining evidence against him. He pleaded guilty to a lesser charge of threatening to kill commonwealth officers and served two years in jail.
Last year, Melbourne man Jack Thomas had his conviction on terrorism charges overturned in the Victorian Court of Appeal, after it found that his AFP interview had not been voluntary and was unfair and contrary to public policy. Thomas is to face a retrial next year.
And in July, Gold Coast doctor Mohamed Haneef was charged with terrorism-related offences in a highly politically charged case, which was later withdrawn for lack of evidence.
The disturbing inference, which is seemingly confirmed by Mr Lam Paktsun's testimony, is that terrorism prosecutions are being driven not by a reliance on evidence but by a political imperative to obtain convictions. The effect of this was summed up by Mr Ul-Haque's former principal at North Sydney Boys High in his testimony to the court.
"Terrorism wins an awful victory when we are prepared to destroy a young person's reputation and future on the flimsy grounds which have landed Ul-Haque in this present situation," Mr Newsom said.
Sally Neighbour is a senior reporter with The Australian and the ABC's Four Corners Story Tools
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For legal tragics, here's a link to the Justice Adam's Supreme Court judgement throwing out the evidence in the El-Haque case. His Honour is absolutely scathing, saying that the spooks (ASIO) are guilty of kidnapping and false imprisonment (para 57) incompetence (para 70) and hints there may be even more sinister things afoot. A thoroughly enjoyable read.
R v Ul-Haque [2007] NSWSC 1251: