ABC News

NT parliament invaders appeal conviction

Tuesday, 25 November 2003

A group of activists, sentenced to jail terms for illegally entering the NorthernTerritory's parliament have told the Supreme Court they may take their case to the High Court of Australia.

Members of the Network Against Prohibition were convicted by the Darwin Magistrate's Court in June, after being charged with invading Parliament.

Gary Meyerhoff, Mick Lambe, Stuart Highway and Robert Inder-Smith are appealing the ruling.

The group entered the chamber during a sitting in May last year, protesting against the government's drug-house laws.

The hearing lasted a month and several members of Parliament were subpoenaed to give evidence.

Mick Lambe told Justice Steven Bailey he had sent a petition to the High Court asking it to look into the case, which he described as unprecedented in the Northern Territory.

Justice Bailey agreed the unusual nature of the case might catch the Court's interest.

On the matter of the appeal, he adjourned the hearing to allow the group to get proper legal representation.

------------------ Ends

Usual dramas trying to get this application into the High Court. The NT Supreme Court Staff insisted the application to have matters moved out of the NT Supreme Court into the High Court of Australia was an appeal.

Wasted two days trying to get this application to the High Court.*

It is obvious from the 'confusion' at the NT Supreme Court that not enough people here are taking advantage of their rights in these matters.

Justice Bailey explained (in that patient and painstaking manner favoured by Judges when addressing Appelants without legal represention) -- that our previous Amended appeal was "rubbish". This helpful legal advice led to this more detailed Amended appeal** which is mirrored in the High Court application.

Obviously I have been unable to include every detail raised in evidence in one the "longest running" trials in the Northern Territory.

This is just one example of my treatment by the NT Anti-Discrimination Commission and the NT Ombudsman.

The political climate we laboured under

1998 -- The first time we held a PARIAH stall at Mindel Beach Markets (in Darwin 130kms away) an associate's caravan was ransacked and his bed urinated on.

The second time, our home was ransacked and food and bedding thrown out onto the ground outside.

The hatred has been unrelenting. We continued to hold a stall.

* High Court application delivered 14 January, still being delayed for acceptance for 'technical' reasons.

** Amended appeal to the NT Supreme Court. 12 January, 2002

We will be complaining to the UN's Special Rapporteur on the promotion and protection of the right to freedom of opinion.

IN THE MATTER OF AN APPLICATION
FOR REMOVAL OF A MATTER INTO THE
HIGH COURT UNDER S.40(2) OF THE
JUDICIARY ACT AND QUASHING OF THE
CONVICTION (OR ORDER OR ADJUDICATION)
MADE ON THE 5TH DAY OF JUNE, 2003
BY THE COURT OF SUMMARY JURISDICTION
OF DARWIN IN THE NORTHERN TERRITORY
OF AUSTRALIA ON THE HEARING OF A
CERTAIN INFORMATION (OR COMPLAINT)
WHEREIN PAUL FRANCIS TUDOR-STACK OF
DARWIN, WAS THE INFORMANT (COMPLAINANT)
AND MICHAEL PAUL LAMBE THE DEFENDANT.
JA 104/03 (20207640)

EX PARTE: MICHAEL PAUL LAMBE

Affidavit of Michael Paul Lambe

1. On the 12th day of January 2004, I, Michael Paul Lambe, of ------------ Fannie Bay, Northern Territory, currently an unemployed tutor, make oath and say as follows;

2. Exhibited hereto and marked with the letter "A" is the Draft Order Nisi which I seek for the Court to issue.

3. That s.61 of the Criminal Code be struck down as void for purporting to grant jurisdiction to the Court to declare the Applicants conduct to be a political crime, a crime against the Assembly, or in contempt of the Assembly, and is therefore ultra vires of the Constitutional law in the Northern Territory which vests such jurisdiction wholly within the Legislative Assembly itself.

4. S.61 of the Criminal Code be struck down as void for purporting to grant jurisdiction to the Court to make a political judgment as to whether conduct amounted to a contempt of the Assembly, a political crime, or a crime against the Assembly.

5. That this Court declares that the prosecution against the Applicant was unlawfully issued against the Applicant, as no resolution was issued by the Legislative Assembly stating that the applicant's conduct constituted an improper interference with the Assembly.

6. That this Court declare the Legislative Assembly (Powers and Priveleges) Act 1992 and the Legislative Assembly (Security Act) 1998, represent a complete and exclusive scheme for the protection of the democratic functions of the Legislative Assembly, which acts as an effective repeal of s.61 of the Criminal Code of 1983.

7. That s.61 of the Criminal Code be declared void for inconsistency with the Legislative Assembly (Powers and Privileges) Act 1992 and the Legislative Assembly (Security Act) 1998 in terms of mandatory procedure, substantive offences, and prescribed punishment regime.

8. That the Applicants communications and speech within the Assembly constituted part of the proceedings and the Applicant is immune from judicial intervention and protected by the Bill of Rights 1688.

ON THE GROUNDS;

9. Recent disturbances of the House of Representatives by non-members of that House (Senators from the "other place" Senators Brown and Nettle) during the speech of United States President George W. Bush were not subject to the jurisdiction of any criminal court and could not have been and the Applicants have the same rights of protection as those guests (Senators Brown and Nettle) had in the House of Representatives, subject only to proceedings by the House itself to declare such conduct illegal, improper, inappropriate, or an exercise of Constitutional Rights to free speech and communication, as the case may be.

10. s.61 of the Criminal Code is in violation of the separation of powers doctrine by purporting to grant jurisdiction to the Court to declare the Applicants conduct to be a political crime, a crime against the Assembly, or in contempt of the Assembly, and is therefore ultra vires of the Constitutional law in the Northern Territory which vests such jurisdiction wholly within the Legislative Assembly itself.

11. The Applicant was protected by the Bill of Rights 1688 (William & Mary) as a guest of the Legislative Assembly and had absolute freedom of speech and communication in the Legislative Assembly subject only to the exclusive jurisdiction of the Legislative Assembly under the Legislative Assembly (Powers and Priveleges) Act 1992 and the Legislative Assembly (Security) Act 1998.

12. The Applicant's exercise of the rights of freedom of speech and communication in the Legislative Assembly are immune from judicial review, and the Applicant has all the immunities rights and freedoms in the Assembly as he would enjoy as a guest of the House of Representatives, subject only to the exclusive jurisdiction of the Assembly itself under the Legislative Assembly (Powers and Priveleges) Act 1992, and the provisions of the Legislative Assembly (Security) Act 1998.

13. The Applicant was exercising his lawful right to freedom of speech and expression in the Legislative Assembly and the Court had no jurisdiction to review such conduct or to declare such conduct to be an improper interference with the Legislative Assembly or a crime against the Assembly.

14. The implied Constitutional and Territorial right to freedom of speech in political matters extends to the right to disturb the Legislative Assembly by the exercise of lawful free speech and communication, subject only to the jurisdiction of the Legislative Assembly to determine by resolution under the Legislative Assembly (Powers and Priveleges) Act whether such conduct is a improper interference with or crime against the Assembly.

15. There has been no declaration by the Legislative Assembly that the Applicant's speech and communication at the Legislative Assembly exceeded the Applicant's lawful rights of freedom of speech and communication or was in any way an improper interference with the Assembly.

16. Only the Legislative Assembly has the power to declare otherwise lawful conduct by any person to be an improper interference with the functions of the Assembly under s.5 of the Legislative Assembly (Powers and Priveleges) Act.

17. Only the Legislative Assembly has the power to declare otherwise lawful conduct by any person to be an offence against the Assembly under s.5 of the Legislative Assembly (Powers and Priveleges) Act.

18. There has been no declaration by the Legislative Assembly under the Legislative Assembly (Powers and Priveleges) Act that the Applicants communications, speech, and conduct in the Assembly amounted to an excess of the Applicants rights to freedom of speech such as to be an improper interference with the Assembly.

19. S.61 of the Criminal Code is ultra vires of the Constitution, ultra vires of the separation of powers doctrine of the Constitution, ultra vires of the right to freedom of speech, and ultra vires of s.12 of the Northern Territory (Self-Government) Act.

20. S.61 of the Criminal Code is a violation of the separation of powers, and which purports to grant jurisdiction to the Courts over proceedings and conduct within the Legislative Assembly, to declare conduct to be a political crime, an offence against the Assembly, or a contempt of the Assembly.

21. S.61 of the Criminal Code is void for vagueness, uncertainty, and imprecision.

22. S.61 of the Criminal Code is void for the inordinately harsh and grossly disproportionate penalty it prescribes, which is inconsistent with the sentencing regimes prescribed by the Legislative Assembly (Powers and Priveleges) Act 1992 and the Legislative Assembly (Security) Act 1998.

23. The Legislative Assembly (Powers and Priveleges) Act 1992 and the Legislative Assembly (Security) Act provide an exclusive and complete legislative regime for dealing with political disturbances within the Assembly such as to exclude and repeal and render inoperable for inconsistency s.61 of the Criminal Code.

24. S.61 of the Criminal Code is grossly and manifestly oppressive by its uncertainty of description of the offence.

25. S.61of the Criminal is grossly and oppressively excessive in the punishment it prescribes.

26. S.61 of the Criminal Code defines no offence or criminal conduct. It simply states like a Dog Act - if a person's behavior is found to be disturbing by a Magistrate then that person will be sent to jail.

27. S.61 of the Criminal Code breaches the separation of powers by purporting to sub-delegate to a Magistrate the legislative power which is entrusted by the Federal Parliament into the Legislative Assembly for declaring conduct to be in contempt of the Assembly, a political crime, or an offence against the Assembly.

28. S.61 of the Criminal Code was beyond the power and competence of the Assembly to pass as it purports to grant jurisdiction to the Courts over speech and actions which are within the inherent and exclusive jurisdiction of the Legislative Assembly.

29. Only one branch of Government has jurisdiction over speech, actions, and conduct within the Legislative Assembly and that is the Legislative Assembly itself.

30. The essential elements of the offence have not been proven by the Prosecution. No offence took place, as the Assembly has not declared by resolution under the Legislative Assembly (Powers and Priveleges) Act that an improper interference has occurred.

31. The actions were authorised justified or excused under the Criminal Code of the Northern Territory in that it is an essential element of the law that the actions of the defendants are presumed to be lawful as there has been no resolution by the Assembly that any improper interference with the Assembly has taken place,

32. IT IS FOR THE ASSEMBLY AND THE ASSEMBLY ALONE TO DECLARE WHETHER THERE HAS BEEN AN IMPROPER INTERFERENCE WITH THE ASSEMBLY.

33. It is only the Legislative Assembly which has jurisdiction and the means to decide and declare whether such interference occurred and crucially if so whether it was "IMPROPER" -- or not.

34. Whether the Legislative Assembly has been improperly interfered with by the Applicant is a matter which must be proved by the prosecution beyond reasonable doubt. The absence of a declaration by the Assembly that the Applicant's conduct was an improper interference with the Assembly means that the verdict is void and an acquittal must be entered for the Applicant.

35. Political bias was demonstrably evident throughout the trial which saw Magistrate Wallace presiding. The constitutional separation of the Police and Judiciary was not apparent to the Applicant.

36. The amended appeal in the Northern Territory Supreme Court incorporates these points in support of that belief and that attendant discrimination by the Northern Territory Government and associated bodies, is condoned (or at best ignored) by the Northern Territory Criminal system.

37. The Defendants who were unrepresented were not adequately advised of their rights including their right to have their guilt or innocence declared by a jury of their peers.

38. The Defendants did not make a free and informed consent to the hearing of the matter summarily by the Magistrate.

39. The hostile media campaign (epitomized by Attorney General Peter Toyne's public remarks on the court case) made an unbiased jury trial seem unlikely to Defendants. The NT News ran a headline -- 'Jail my son' (Luke Masters - one of the protesters) the day before the Defendants were to be sentenced.

40. The Defendants were emotionally and physically exhausted by the government and Police campaign mounted against them. They were dealing with a statistically improbable number of other cases and legal matters at the time.

a.) An example -- The Applicant has had to prepare this document, as well as preparing for other cases on the 12th January, the 13th of January, the 21st of January and the 2nd and 3rd of February 2004. Today is the 12th of January 2004.

41. The politicization of the trial was evident. Particularly during the sentencing/press conference finale. Political bias.

42. The Magistrate and Public Prosecutor appeared to any reasonable member of the public to be bound by a need to exonerate Superintendent Bert Hofer, who the Applicant witnessed assault a defenseless female (Ms Ema Birkeland Corro) in the Assembly.

43. Magistrate Wallace exhibited actual bias in his comments to the assembled press (during sentencing) about the assault the Applicant witnessed by Superintendent Bert Hofer upon a defenseless female (Ms Ema Birkeland Corro) in the Assembly.

44. The police doctored the video tape evidence so that the Applicant was denied his right to have the whole of the evidence before the Court, including matters tending to exonerate the Defendants and explain the whole of the circumstances and events in the Assembly on the day the events took place.

· The Hansard tape then "...(went) missing somewhere between the Supreme Court and the Magistrate's Court." between the first and fifth of December 03. This event and the 'reappearance' of the Hansard video have yet to be explained.

"Police Prosecutor Peter John Thomas, speaking from the witness box said "...this is embarrassing."

"Court orderly Jason Finlay, also speaking from the box said "I have been working here for 2 years and evidence has never been lost before."

45. I will rely on the (Police doctored) video tape and the transcript to demonstrate why the Magistrate's summation was biased and unnecessary (a different case) in regard to the assault on a defenseless female in Parliament.

46. Magistrate Wallace claimed the Applicant couldn't see Ema (Corro) being kicked from his position. He stated this for the benefit of the Press during sentencing. As the (NT Police doctored) videotape shows, I am looking directly at Ema when Superintendent Bert Hofer kicks her. You can hear me yell out as Ema is kicked by Hofer.

47. The "railroading" of Ema Birkeland Corro, assaulted by Superintendent Hofer (an event also witnessed by Rebecca Morse, an ABC reporter) exemplifies the 'selective prosecution' - (which has no place in a democracy) -- rampant in the NT . It was obviously an attempt to punish, intimidate and discredit Ema Birkeland Corro, who found herself charged with assault.

48. So obvious that Ms Corro refused to participate in the Court proceedings, choosing to remain silent. Not many people would be cooperative in a situation where they were charged with assault -- while their own (earlier) complaints of assault against their alleged victim (and the alleged victim's only witness) were not even investigated by Police.

49. Ms Corro was found guilty of assault on the basis of evidence that she "...jumped on Aaron Wigmore's back from a table known as the Repository of the Mace." (ABC News)

50. The video shows clearly that the table in question is at least ten meters from the Security Guards. And shows Ms Corro jumping to the floor.

51. The Police Prosecutor Peter John Thomas -- (same Prosecutor as in Parliament trial) was aware of this -- as he had seen the video tape many times before. He was also aware that Ms Corro had charged the Security Guards with assault prior to their 'complaint' -- Ema's complaint of assault was simply (and illegally) ignored by Police.

52. The video tape shows Ms Corro being held upside down and dropped on the floor by the two Security Guards. In another incident a Security Guard has seized her by the breasts -- Conceded by Magistrate Wallace. The video tape shows no evidence of Ms Corro assaulting anyone. The Security guard who claimed to be injured is entirely fit and active in the video footage.

53. Magistrate Loadman's bullying treatment of Ms Corro was biased in the extreme from the viewpoint of any reasonable person. This bias by a Magistrate who has referred to Jabiluka protesters as "selfish, arrogant and fascist" -- ("Fascist" being an entirely inappropriate and insulting term that evokes violence, bigotry and a servile acceptance of the State, right or wrong) -- has been evident in every case where he has dealt with protesters, that the Applicant has witnessed.

54. Ms Corro was sent to the cells a couple of times at least (I was ejected from the court room) to "coerce" her to cooperate. This only confused a Defendant who had been told earlier by Magistrate Loadman that she could leave if she wished. She chose to stay.

55.The legal value of such a "coerced" testimony - - particularly given the pressure Ms Corro was placed under -- would have been questionable.

56. A written statement prepared to explain Ms Corro's reluctance to testify was ignored, despite repeated attempts at submission, until after the Magistrate's attempts at "coercion" had failed. The Magistrate had earlier referred to her statement as a "diatribe" before he had actually read it. Such blatant bias is extremely prejudicial and entirely disconcerting to a Defendant.

57. Magistrate Loadman has been asked to withdraw from NAP and PARIAH cases at least a dozen times because of his bias and inappropriate behaviour towards said Defendants. He refuses to do so.

58. Currently the Applicant and Ms Corro face contempt charges (with a possibility of two months in prison) for a spontaneous outburst in protest against Magistrate Loadman's un Magisterial conduct. Once again in a case where he was asked to withdraw on the basis of his bias.

59.That this case against Ms Corro was a fabrication for the aforementioned reasons, is made clear by the Prosecutor's failure to use the video tape (primary evidence in this alleged assault) -- and his silence when facts he knew to be false were presented to the Court.

60.The involvement of the same Police Prosecutor in both cases and Magistrate Wallace's superfluous remarks tending to absolve Superintendent Hofer, make the 'assault' case against Ms Corro entirely relevant as evidence of bias and political interference in the Parliament trial. The police-tampered Hansard video-tape is also a major tie-in between these two cases. Ms Corro was unable to subpoena the Hansard video in time for her case. Ema's attempt is on record. This primary evidence in serious criminal cases was still unavailable to the Defendants at this time. Magistrate Loadman is currently dealing with another 'Parliament' Defendant Scott White and unsurprisingly, has refused to disqualify himself on the grounds of bias put forward by Mr White.

Insert

JUSTICE MURRAY WILCOX, FEDERAL COURT: JUSTICE MURRAY WILCOX, FEDERAL COURT: The principles concerned in contempt of court cover several matters. One of these is the protection of litigants from improper pressure to abandon or discontinue claims or defences. The law does not countenance intimidation of litigants or their being subjected to public obloquy or abuse to defend their rights."

24/7/2001 - Source

End of Insert

61. The Court was used at times by the Prosecutor to help Police gain evidence in matters unrelated to the alleged offence for overtly political reasons.

62. The Applicant was questioned about an article he had written describing Superintendent Bert Hofer's assault on Ms Corro, which was published on independent (http://www.indymedia.org/) media web sites. The Applicant's reply in the affirmative regarding authorship and his advice that the Police Prosecutor could tell that to his mate Hofer, demonstrate an immediate awareness of the question's irrelevancy and intent.

63. The Applicant was questioned about TUF (Territory Users Forum) a group that has been under pressure for its relationship with NAP. The Chief Minister Clare Martin, has fielded questions on this subject in Parliament Question Time.

http://notes.nt.gov.au/lant/hansard/hansard9.nsf/0/233666E4E16147CB69256D9D0022E458?opendocument

64. The lack of relevance is apparent -- given the Applicant's reasons for protesting in Parliament. The Applicant's "sincerity" as a political activist was raised by Magistrate Wallace during a previous court case involving an East Timor protest. As was his relationship with the Belyuen people.

65. The message this manifestly excessive sentence sends to the community in respect to political protest - as an alternative to violent recourse -- (when institutional and other avenues fail) -- is entirely counter-productive.

66. These cases appear on the Applicant's web site - http://country-liberal-party.com

67. Continues