Andrew L. Urban.
It didn’t take long. After the first seven days of public hearings at the Board of Inquiry chaired by Walter Sofronoff KC into the handling of the Brittany Higgins allegation of rape against Bruce Lehrmann, its first witness, the DPP Shane Drumgold, was no longer the DPP. He was replaced in his role by his deputy, Anthony Williamson SC. Officially, Drumgold is on leave… Continue reading
Andrew L. Urban
Bruce Lehrmann sat quietly in a back corner of the anodyne, lawyer-filled room in Canberra last week where former judge Walter Sofronoff KC is chairing the inquiry into the hot mess that grew out of the Brittany Higgins allegation of rape against him. The tables had turned: he wasn’t the defendant in this hearing, his former prosecutor was.
Submissions by Civil Liberties Australia, academic and author John Biggs AM and writer & court observer Jennie Herrera are just three of the submissions to Tasmania’s Legislative Council’s Committee on Adult Imprisonment and Youth Detention Matters that directly attack the murder conviction of Sue Neill-Fraser. Continue reading
Andrew L. Urban
There is no such thing, I don’t suppose, as a ‘wrongful leader’ but if there were, I would nominate Mark Speakman, the recently elected leader of the NSW Liberal Party. This is my ‘j’accuse’ … Continue reading
Andrew L. Urban
Former NSW premiers Barry O’Farrell, Mike Baird and Dominic Perrottet all failed to protect the rule of law as it relates to ICAC; “The law was changed to protect wrongdoers,” and new Premier Chris Minns has a chance to right that wrong, argues CHRIS MERRITT (The Australian, April 21, 2023).
When Dominic Perrottet’s Coalition government lost office in NSW, it left a magnificent gift for the incoming Labor administration. It should not be ignored. Gathering dust in the government archives in Sydney are two reports from parliamentary committees that were shelved by the former government. And the reason? They would have required the Coalition to address two of the worst mistakes of former Liberal premiers Barry O’Farrell and Mike Baird. The first of those reports was completed in October 2019 by the law and justice committee of the Legislative Council. It called on the Coalition government to address the issue of compensation for innocent shareholders who had been stripped of coal exploration licences in 2014 without proof of wrongdoing when O’Farrell was premier.
O’Farrell’s government cancelled those licences on ICAC’s recommendation. But he ignored the fact that ICAC also said the government could consider compensating innocent parties who would be affected by the cancellations. He also overlooked the fact that the justice system, not parliament, has the exclusive right to decide guilt and innocent. ICAC is not a court and cannot make conclusive findings of guilt and innocence.
companies denied compensation
A wise government that respected property rights and the rule of law would therefore have waited until the justice system had done its work. Instead, O’Farrell placed undue emphasis on ICAC’s accusations and persuaded parliament that nobody should be compensated – a decision that is now at odds with reality. The two companies that were affected by those decisions were NuCoal Resources – which was not even accused of wrongdoing by ICAC – and Cascade Coal.
Now that the courts and prosecutors have examined this affair, nobody associated with either company – past or present – has a conviction against their name over the manner in which they obtained their licences. The other report that has been left for Chris Minns was handed down in November 2021 by the parliamentary committee on the Independent Commission Against Corruption. Recommendation seven from this report is the one that counts. It seeks to unwind, at least in part, one of the worst excesses of the Baird government. The parliamentary committee unanimously recommended that ICAC’s corruption declarations against four men should be assessed in court without the benefit of retrospective legislation known as the Independent Commission Against Corruption Amendment (Validation) Act
This act had been rushed through parliament in 2015 to “validate” actions by the commission that would otherwise have been unlawful. It amounts to a direct attack on some of the most important principles of the rule of law. It made a mockery of the doctrine that the law should be known in advance, should be applied equally and fairly, and that the legislature should not interfere in the work of the judiciary. Just before the Validation Act was enacted, ICAC had agreed in the Court of Appeal that it had no basis in law for declaring the four men corrupt.
men stripped of legal rights
A draft declaration confirming ICAC’s defeat had been prepared and circulated by Margaret Beazley, who was then president of the Court of Appeal and is now governor of NSW. But before the court could finalise its ruling by striking down ICAC’s unlawful findings, the government, then led by Baird, was lobbied by ICAC, which was then led by Megan Latham. Parliament was never told that the Validation Act would have the effect of changing the outcome of legal proceedings in which ICAC had already admitted liability. One of the four men who were stripped of their legal rights, Travers Duncan, died last year. The others, who have never stopped trying to clear their names, are businessmen John McGuigan, John Atkinson and Richard Poole.
Had Perrottet acted on these reports, he could have distanced his government from decisions that disregarded principles that should be second-nature to all Australians – particularly those elected to parliament. He could have drawn a line under some of the most contentious conduct of his predecessors and at least some of the unlawful conduct of ICAC. While recommendation seven from that 2021 report focused on restoring the legal rights of the four men who had already won admissions from ICAC, it would not amount to a complete solution. It later emerged 128 people had been adversely affected by inquiries and rulings by the commission that had no basis in law.
Perrottet’s timidity was not just bad in principle, it was terrible politics. It has handed the new Premier an opportunity not just to fix the Coalition’s mistakes, but to free ICAC, now led by former Labor attorney-general and judge, John Hatzistergos, from the taint of its association with those matters. Just consider what happened: under O’Farrell’s leadership, the Coalition used parliament to impose a financial penalty on people whose conduct has subsequently been shown to be entirely innocent. Under Baird’s leadership, the Coalition used parliament to retrospectively change the law midway through a court case so unlawful conduct by a government agency could be retrospectively rendered lawful.
That means victims of ICAC’s past misconduct have forever been denied access to the normal law. The law was changed to protect wrongdoers. Minns now has a chance to make it clear that nobody is above the law – least of all a government agency that is supposed to be the enemy of wrongdoing. These reports would give Minns the perfect platform to make defence of the rule of law one of Labor’s key points of distinction.
Chris Merritt
Chris Merritt is vice-president of the Rule of Law Institute of Australia.
Andrew L. Urban
It’s been five years since the South Australian Court of Criminal Appeal refused Derek Bromley leave to appeal his 1984 murder conviction, which leads to his current application to The High Court – which has set aside May 17 & 18, 2023, just to hear argument seeking leave to appeal. Continue reading
A jailed NSW couple protest their innocence as a new podcast – Shadow of Doubt – investigates their convictions for ‘depraved’ abuse. By RICHARD GUILLIATT in The Weekend Australian (April 1&2, 2023) Continue reading
Andrew L. Urban
A comment posted by reader Nick Albu (if that is his real name) raises a number of issues to challenge Marco Rusterholz’s claim of innocence, in the wake of his double 2015 murder conviction and failed appeal – even though the Tasmanian appeal judges agreed 3-0 that the circumstantial case did not prove guilt beyond reasonable doubt.
The case is complex, involving feuding characters, drugs and conflicting testimony. Rusterholz, 51 at the time, pleaded not guilty to the murders of Angela Hallam and Joshua Newman in Ravenswood, Tasmania, in 2012. It took the Supreme Court jury in Launceston about 10 hours over three days to convict Rusterholz of murdering Hallam, 31, and Mr Newman, 21. The Crown’s case, entirely circumstantial, was that Rusterholz stabbed the couple and cut their throats before setting their bodies on fire. The state argued Rusterholz killed Hallam over a drug debt and because he believed her death would please his new girlfriend. Newman was described as being in the wrong place at the wrong time and was killed because he went to Hallam’s aid.
Over the course of the seven-week trial, jurors heard from more than 70 witnesses. Witness Matthew Coventry told the court he and Hallam trafficked drugs for Rusterholz and they had stolen a large amount of drugs from him. Both Coventry and Mayer said Rusterholz had admitted the murders to them. Those arguably self-serving, unreliable claims, played a key role in the rejection of his appeal.
Albu’s comments follow our report published in January 2023, which provides an overview of the case; in the public interest, we have asked Marco Rusterholz (via his good friends the Hoffmans) to respond to Albu’s claims and allegations. Rusterholz’s response is detailed, extensive and exhaustive. It is a valuable archival record, and we have explored it for a couple of relevant examples to publish here, rebutting Albu’s comments and we believe that these examples destroy the validity of those comments and Albu’s credibility.
ALBU:
Marco Rusterholz conveniently fails to address the fact that a strong scent of bleach was reported in the laundry of his residence by investigating officers and that his own wife admitted to burning the clothes he wore on the night of the murders that were covered in blood.
The police prosecutor provided information regarding the scent of bleach and that was testified to in court by detectives on the scene.
Marco & son Saxon, in 2012 before his arrest
ROSTERHOLZ:
At that time, I had eight children. The eldest was 12 years old. Eight children, 12 years old and younger. Yes, we had bleach in our laundry. Of course, we had bleach! There was a new-born in the house and with the two or three youngest; there were still bed wetting issues and the usual accidents, thus common-sense hygiene dictates that one has bleach to clean and sanitise one’s clothing for the family. Most of the police who searched the place said that the laundry smelled like a laundry and some said it had a bleachy smell. There was NEVER an issue of whether there was bleach in the house – well in this case – the laundry. Unless bleach was on the nose in every room – which it was not. Only in the laundry.
Police were actually looking for clothing that smelled of petrol – as lmlach had a tale that I had spread petrol all through the victim’s unit. Thus, logically – the clothing could contain petrol fumes. Page 1134 of Brett lmlach’s testimony, Line 28 to line 41 he claims that I poured fuel all through the victim’s unit – upstairs and down. Quite creative – but fortunately – this is all able to be verified, or dismissed, by scientific evidence.
There was NO scientific trial evidence from anyone re: clothes burning, hair burning, work boot burning or blood washing having taken place at the accused’s dwelling! Neither was any Police documentation or records, spoken of, or made available, or referred to, regarding such claims as made by Albu. This does not exist.
Furthermore; at the Rusterholz dwelling, the police went through the water of the washing machine and the ‘U’ section of all drains to strain the water for even the most minute concentrations of blood in the dwelling. There was not a single blood drop, or stain, or blood specimen or sample found on any door-handle, drain, fireplace, firebox, firebox handle, furniture, bedding, beds, sheets or clothing or even on ANY knife anywhere in the Rusterholz dwelling whatsoever … EXCEPT on a Brand-New looking fuel container, with price tag still attached, found just inside the door of the shed. This had victim’s blood on it pretty well wherever there was Morgan’s (co-accused, David Morgan) DNA and/or prints located. His DNA was found pretty well everywhere that one would carry, use, open or handle this can type!
After 36 separate swabs and 12 months of possession (that’s a whole year) inside forensic services – Rusterholz DNA was found on the back bottom edge of can. Police Prosecutor Ransom stated that they place no value on that DNA and he himself suggest it was probably transference.
ALBU:
The pony tail Rusterholz hacked from Miss Hallam’s head and presented to Imlach. Rusterholz presenting that same ponytail to Sally as her “birthday present” to which Sally of the multiple last names/aliases replied “I wanted her fkn head,not her hair”. For the record, the injuries to Miss Hallam were described as a partial decapitation.
RUSTERHOLZ:
Dr Donald Ritchey – forensic pathologist conducted the autopsy of the victims. He said … Page 333 Line 19-44 In terms of there being evidence of hair removal, or the removal of hair … the prospect of it being cut, scissored or removed … And that your answer .,. was that you did not notice anything like that – do you recall that answer? I do recall that. Page 334 line 4-5 … there was nothing that you saw that suggested that hair had been cut … There was nothing that I saw …
FORENSICALLY PROVEN FACT – There was no hair cut from the victim. Nor did the victim have blond hair. A scientific and forensic fact! On the stand Mayer testified to the prosecution that her birthday present was in fact a car.
Page 1093 lines 33-40 “Okay, thank you. You were asked by Mr Hughes about a motor vehicle being a birthday present? ….. Yes. And that motor vehicle was the one that was brought down was it on the night by Mr Rusterholz? …..Yes. A small Hyundai? Yes.”
Lastly; no evidence whatsoever in Mayer’s trial transcripts – where she wants the victim’s head!
Nowhere in Dr. Ritchey’s (autopsy specialist) trial evidence does he even use the words “partial decapitation”. In fact that word isn’t said in the whole trial by anyone!
ALBU:
Remind Rusterholz about the violent threats he had made to Joshua Newman the week prior. Mr Newman had informed others about these threats, referring to Rusterholz by his first and last name.
RUSTERHOLZ:
There was no evidence given by any witness; police, phone technician or civilian, that Joshua Newman had any threats made to him by Rusterholz. Or vice versa! Nor was there any evidence whatsoever of Mr Newman informing anyone at all, that threats had been made to him by Rusterholz. There was no evidence, at all, of any phone text conversations, NOR phone calls, between the two! EVER!
ALBU:
The cruelty and abuse to his own children were also testified to.
RUSTERHOLZ:
Albu couldn’t have been in court during the trial; couldn’t have read the transcripts. Everything claimed (by him) does not have mention in the trial transcripts. No one gave any evidence of Rusterholz’s “cruelty and abuse to his own children”. There was no evidence of that nature even discussed by anyone at all in the court trial. Cove’s missus, Dana, did report that Mr Coventry was “a very violent man”. Coventry even admitted on the stand the following; “Page 908 line 1: You become … quite nasty when you’re wild don’t you? Correct.”
malicious
We can only speculate as to the motives behind Albu’s malicious imputations and allegations; they certainly can have no impact on any future appeal. Perhaps personal animosity is at play …
Andrew L. Urban
Under the constitutional doctrine of the separation of powers, parliaments make laws, the executive administers and enforces laws, and the judiciary adjudicates disputes about the law. The judiciary is thus insulated from outside oversight; that’s a good thing … until it isn’t. Because if the judiciary is beyond oversight (other than its own) it can fall into error, and simply stonewall if challenged. Continue reading
The inquiry into the handling of the Bruce Lehrmann case by ACT police, the DPP and virtually anyone associated with it, can expect to come across a witches brew around the discontinued rape allegation against him by Brittany Higgins; how it was orchestrated and how it ensnared a number of senior politicians. Continue reading