Witness K: was his guilty plea coerced?

Jun 18, 2021

After years of suffering oppression, delays and injustice from his employer the Federal Government, Witness K, finally pleaded guilty before a closed court for disclosing classified Commonwealth material to his lawyer about Australia’s dirty antics against East Timor. Two days of sentencing hearing are set down for Thursday and Friday. But was his guilt plea coerced?

K’s prosecution came long after he raised objections to the Australian Government, through one of its intelligence agencies, installing remote switch listening devices in the government buildings of Australia’s near neighbour and friend The Democratic Republic of Timor Leste. This was done to gather information to cheat Timor Leste out of its fair share of sea oil and gas resources, which were Timor Leste’s only real sources of income.

There are reasons to doubt that Witness K considers himself guilty, despite his plea. One of them is discussed here.

Taking a populist view, there’s this obvious question:

Why would a Commonwealth intelligence officer, having misgivings about obeying orders to secretly bug the cabinet room of a poor friendly nation to help his own government steal from them, an officer who pursued those misgivings with his senior but with a lacking response, who then enlisted an approved lawyer to protect him, then prepared to take the matters to the Court of Arbitration in the Hague, then years later after the oil issues were settled in favour of the poor nation was suddenly charged with crimes of disclosing, and along with his lawyer was raided and grounded, then was moved at imperceptible speed through a secret ‘show trial’ prosecution with no end in sight, whilst seeing similar closed protracted ‘show trials’ of other whistleblowers and his former lawyer, why would he then ‘suddenly’ give up and plead guilty?

The highest probability is that the entire process by the Australian government of nullifying Witness K registered all along as duress, that his ‘confession’ was the only way he knew to end the unending trauma, and was made under duress and was therefore coerced. If this is true, it is definitely the case that there has been a miscarriage of justice.

Even without other evidence, this matter needs urgent investigation by the Attorney General of the Australian Capital Territory who has general portfolio responsibilities for the court system in which K was tried. He must ensure that justice is delivered always and at all times. Surely this lesson was learned through the long trial of David Eastman, jailed for two decades for a murder he didn’t commit and awarded $7 million after his release?

Of course, the Attorney General must not interfere in court proceedings, but at the same time, he must ensure his court system is not used to bring about a miscarriage of justice or correct one swiftly if it occurs.

Those of us who turned up at the courts in the early months to support K and his former legal counsel former ACT Attorney General Bernard Collaery (also being prosecuted, for representing his client), until we were forced out of this grotesque ‘show trial’, saw enough of the willingness of some on the Bench to grant the Federal prosecutors any and all extensions in time they sought, and still more time when the DPP returned to the Court, mildly conceding they had again failed to meet their own time limits.

Did this apparent ineptitude on the part of the Prosecution, which caused massive harm to Collaery and K by delaying and thus denying them justice, continue when the doors were closed to us?

Was it ineptitude, or are they under orders from higher up to drag their feet?

It would have been difficult, even impossible, for the Bench to confidently decide whether material and evidence put up by Commonwealth prosecutors should be kept secret, given they couldn’t see it.

Why was Witness K’s application for legal aid from the ACT government not treated in a timely and fair manner? How many different solicitors and Counsel have he and Collaery been forced to instruct from the top, due to protracted pre-trials alone?

Without suggesting that the Magistrates in K’s matter, or his tireless legal advisers, did not do their jobs well, still, the Attorney General should look into these proceedings, including the process of K making and having a guilty plea accepted.

A Magistrate has no control over how a defendant pleads and must accept a guilty plea but they must be convinced that the accused understands what they are doing and that there are facts to support their plea. The Magistrate and the accused’s legal advisers must work through any possible issues to ensure the plea is genuine. If a Magistrate has doubt, they should adjourn and ask the accused to accept legal advice.

They must be sure the person entering the plea is of sound mind. The Magistrate must also be sure that they are not subject to coercion or duress in entering a guilty plea.

An independent assessment can be needed to determine this. But that could be impossible in K’s case. Would the Commonwealth government ever agree to such a thing, even a government not as inordinately paranoid and vindictive as this one? And if K was determined to plead that way, who was there to enlighten the court?

Court appearances for the two now exceed 50 and neither trial has begun. The ACT Attorney General could have taken an interest in why.

Mounting media and widespread public concern, on which he receives regular briefings, could have put him on notice. (From random surveying in Canberra fifteen months ago, I found around ninety per cent of a few hundred respondents knew of the trials and were either mystified or disgusted. Knowledge is far greater now.)

So could the ACT Attorney General have noted serial protests outside his courts, addressed by more and more eminent people, and the commitment of those around the country and overseas to opposing these trials. So could he have taken notice of the imprecise and ambiguous prevarications of former Commonwealth Attorney-General Porter, on who decided to prosecute – as between himself and the Crown DPP, and on how the public interest was weighed in decisions to prosecute and continue.

How did The ACT Attorney-General weigh all these serious matters? Did he take an interest or receive briefings? What was he told? Did he ask if there was anything he should know? These are all serious public interest matters, as are other trials of whistleblowers, notably David McBride for blowing the whistle on war crimes in Afghanistan long ago.

Even if the ACT Attorney-General didn’t or couldn’t know before, he still has a responsibility to investigate now. It is also open to the ACT Legislative Assembly to inquire into the conduct of proceedings against Witness K and other whistleblowers on trial in their courts.

If there is no accountability from within the jurisdiction trying these citizens, it will surely come from other quarters.

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