Integrity Commission Tasmania complaint & response

Andrew L. Urban.

The High Court’s dismissal of Sue Neill-Fraser’s application seeking leave to appeal (August 12, 2022) leaves unresolved the matter of inadmissible forensic evidence at trial and the lack of disclosure of that error to the courts. Flinders University legal academic Dr Bob Moles took the matter to the Integrity Commission Tasmanian (ICT), pointing out the legal obligation that remains unfulfilled.

Moles says the correspondence rejecting his submission reveals that the ICT appears not to understand that “the use of evidence which is false and misleading undermine the rule of law and represent a fundamental breach of our international human rights obligations.”

Dr Bob Moles to Integrity Commission
August 1, 2022 (extracts)

Of course, the FSST is not concerned about the outcome of the appeal. It should only be concerned to inform the DPP’s office that in this case evidence was given at trial by the forensic scientist which was not in accordance with appropriate scientific standards and was therefore inadmissible.

It will then be for the DPP’s office to determine what to make of that from a legal perspective. It clearly has not been appropriate for FSST, having been made aware of these problems for some years now, to remain inactive or unconcerned about the consequences which have arisen from their failure to provide proper scrutiny of evidence being provided by their employees.

As the Splatt and Morin reports make clear, where error has occurred all those involved have an ethical obligation to ensure that it is corrected. That obligation is continuing until the error is corrected.

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I note that the Integrity Commission of Tasmania has the power to recommend to the Premier the establishment of a Commission of Inquiry under the Commissions of Inquiry Act 1995. There clearly should be an inquiry into the provision of forensic services in Tasmania, as the errors in this case are indicative of systemic failures which might well affect other cases.

Summary of issues arising:

  1. Why did the Director of FSST not respond to the report which was sent to him raising concerns about the forensic evidence in the case of Susan Neill-Fraser?
  2. Why did the Director of FSST not conduct an inquiry into the issues which were raised in the report which was submitted to him?
  3. Why did the Director of FSST refer the report to the Asst Commission in TasPOL when the issues raised were of a forensic and scientific nature?
  4. Was the reference of the report to TasPOL a breach of the policy of FSST to maintain an operational separation between FSST and TasPOL?
  5. Why did FSST not conduct proper peer review of the reports issued by the forensic scientist and of the evidence which was given in an important murder trial?
  6. The evidence of the forensic scientist in relation to DNA and that of the pathologist in relation to death being caused by a blow to the head should not have been admitted at trial. It did not comply with the conditions for admissibility of expert evidence. Although the provision of this evidence was no fault of those providing it (they were subject to directions by the judge or prosecutor), they do have an obligation to inform the prosecution (post trial) that the evidence should not have been admitted and may have been misleading to the jury.

Duty of disclosure: The relevant legal principles require the Crown (which includes the prosecutors, police and any other agencies of the state (expert witnesses) in support of a prosecution, to disclose any materials which are relevant to the case presented by the prosecution. It is particularly important that any material or information which might undermine the prosecution case or the integrity of an expert witness be disclosed.

The duty of disclosure is continuing – it continues after the trial and after all appeals have been concluded.

Integrity Commission reply to Dr Bob Moles
August 12, 2002 (extract)

We have carefully considered whether the allegations could amount to misconduct, as defined in section 4 of the Integrity Commission Act (the Act). This is important, as we can only act in relation to a complaint that alleges misconduct. We are also required to focus on possible misconduct that is serious or involves senior public officers.

It is clear from your complaint and your academic work that you are concerned with various aspects of the evidence used in the trial of Ms Neill-Fraser.

However, the information that you have provided is an academic opinion and does not indicate that misconduct is likely to have occurred. I note your views and commentary on the need for the independence of FSST. However I do not consider this to be an issue relating to possible misconduct, as defined in the Act

In the circumstances, I have decided that due to the low likely culpability of the public officers involved it is not in the public interest for us to investigate the complaint. I have decided to dismiss your complaint, under section 36(1)(f) of the Act.

Thank you for bringing this matter to our attention.

Michael Easton
Chief Executive Officer
Integrity Commission Tasmania

Dr Bob Moles responds to Integrity Commission
August 22, 2022 (complete)

Thank you for your letter of 12 August. I regret to say that the opinions which it expresses appear to be lacking in both common-sense and logic. 

Academic opinion

You indicate that I am putting to you a mere ‘academic opinion’ which you obviously rate lower on the scale of human endeavour than the opinions of others, without explaining why that is so. I need hardly point out that the research output of universities is more highly regarded outside of Tasmania.

Indeed, my opinion was sought as ‘expert advice’ to the Goudge Judicial Inquiry in Canada, as it was on the establishment of a Criminal Review Commission also in Canada. In addition, our latest book on criminal appeals (to which I referred in my submission to you) was commissioned by the internationally respected law publisher LexisNexis and was published by their legal practitioner’s division as a reference work for legal practitioners.

However, the more important point is that the content of my letter to you was not to provide you with my opinions, but with reference to the judgments of the courts in Australia, Britain and Canada. The empirical basis for my submission to you was the transcript of the trial of Ms Neill-Fraser. Everything I said about the trial was supported by references to that transcript, and so it can hardly be said to contain, in that respect, any expression of my opinions.

The judgments which relate to the evaluation of the propositions put forward in that transcript are not mine, but those based upon the judgments of the courts of the United

Kingdom in the IRA bombing cases – the judgment of a judge of the Supreme Court of Canada – and within my report, the judgment of the Supreme Court of Victoria. Of course, all of that is backed up by the sections of our book on the admissibility of expert opinions and the conduct of prosecutors in Australian courts, to which I also referred in my submission to you and which, for convenience, I repeat below. Nobody has ever suggested that we have misrepresented the law on any of those issues in any way.

No indication of ‘misconduct’

I was then surprised to learn that you formed the view that the matters which I raised with you do not even raise a prima facie case of ‘misconduct having occurred’ so as to warrant any inquiry by the Integrity Commission. It is clear that the judgments of the Australian courts to which I referred took a very different view. They make it clear that the securing of wrongful convictions by the use of evidence which is false and misleading undermine the rule of law and represent a fundamental breach of our international human rights obligations.

I had provided you with the references to the Australian legal judgments which used the expressions ‘an extremely grave criminal offence’ and ‘criminality at the extreme end of the spectrum of official corruption’. The Lord Chief Justice of England and Wales on a visit to Sydney described the possibility of a person being wrongly convicted of a serious crime as constituting a ‘catastrophic failure’ of the legal system.

Yet you state that the conduct to which I have referred is ‘not serious’ – in the context of the possibility of a woman having been wrongly imprisoned for over 13 years. This is your response to the allegation that Forensic Science Services in Tasmania failed to provide peer review of the false and misleading evidence before being provided to the court; failed to investigate that misconduct when it was brought to their attention in my report; failed to maintain operational independence from the police in respect of investigating the concerns which I had raised; failed in their duty to the court to investigate if disclosable material (false evidence) was required to be disclosed to the DPP or the courts.

My conclusion

I have to say that I respectfully disagree with your assessment. The circumstances to which I have referred, when they occurred in the UK, led to two major Commissions of Inquiry, and the most important structural reform to law enforcement which has ever occurred in that jurisdiction – the introduction of a Criminal Cases Review Commission.

Yet when similar misconduct is reported to you, some 30 years after the UK catastrophe was exposed, the Integrity Commission of Tasmania is not embarrassed by publicly stating that they see no need to investigate even the possibility of a similar catastrophe having occurred in your jurisdiction.

I have no doubt that the opinions which you have expressed in your letter to me will be found wanting, either at the subsequent inquiry into the operations of the Integrity Commission, or the inquiry which I have no doubt will also occur into the shocking misconduct which has occurred in the case of Ms Neill-Fraser.

In the meantime, I would suggest that it would do no harm for the Integrity Commission to reconsider its position in relation to this issue while it still has the chance to do so.

Dr Robert Moles ACII (UK) LLB (Hons) (Belf) PhD (Edin)

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In August 2019, Tasmania’s Integrity Commission also dismissed the complaint by this journalist against Assistant Police Commissioner Richard Cowling, which raised the contradiction between his statement to the media and the summary of facts presented in court, regarding Meaghan Vass recanting her statement made on 60 Minutes (March 10) in which she admitted witnessing a fight involving Bob Chappell and stating Sue Neill-Fraser was not there.

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34 Responses to Integrity Commission Tasmania complaint & response

  1. Geraldine Allan says:

    Here you have it — The headline says it all!

    Any potential applicants?

    “Toothless Tiger looking for new Gutless Wonder to take over doing absolutely nothing
    Expressions of Interest invited for Chief Commissioner of the Integrity Commission

    Expressions of interest are being sought from suitably qualified persons interested in being appointed as Chief Commissioner of the Integrity Commission.

    The Commission is an independent statutory authority established under the Integrity Commission Act 2009 and its role is to improve the standard of conduct, propriety and ethics in public authorities in Tasmania; enhance public confidence that misconduct by public officers will be appropriately investigated and dealt with; and enhance the quality of, and commitment to, ethical conduct by adopting a strong educative, preventative and advisory role. To be considered for appointment, a candidate must be an Australian legal practitioner of not less than seven years’ standing, and must not have served as a Member of a House of Parliament of the Commonwealth or a State or Territory, a member of a council; or as a member of a political party or a member of a similar organisation.

    An Information Package, containing the selection criteria and further details on the requirements of the role, can be accessed under “Expressions of Interest” on the Department of Justice website at http://www.justice.tas.gov.auApplications must be received by close of business Friday, 16 September 2022.”

    Oh deary me!
    REPEATING FOR EMPHASIS — 
    “The Commission is an independent statutory authority established under the Integrity Commission Act 2009 and
    its role is to
    • improve the standard of conduct, propriety and ethics in public authorities in Tasmania;
    • enhance public confidence that misconduct by public officers will be appropriately investigated and dealt with; and
    • enhance the quality of, and commitment to, ethical conduct by adopting a strong educative, preventative and advisory role.

    https://www.thevigilantenews.com.au/…/toothless…/…

  2. Chris says:

    Maybe it would be easier if Bob Moles outlined the forensic evidence at the original trial that in his view was actually admissible!

    But seriously, the FSST expert went to great lengths to explain the limitations of luminol testing, pointing out that luminol was a screening test on numerous occasions during the original trial. And why was the DNA evidence inadmissible (!) – what a strange assertion for Bob Moles to make at this point in proceedings after the valiant effort by Sue’s lawyers to use the Vass DNA result to gain an acquittal.

    Also looks like the FSST forensic reports and trial transcripts were thoroughly peer reviewed by Dr Reynolds and Mr Jones. Did either of these experts assert that any of the forensic evidence was inadmissible?

  3. Keith says:

    Your comment comes under our rejection policy relating to repeated discussions and speculations related to details of the Meaghan Vass DNA deposit. See more at https://wrongfulconvictionsreport.org/?s=blue+rag

  4. Don Wakeling says:

    Can someone fill me in on this aspect. Have the 2 males named by Vass as having committed the murder, been interviewed by Police. Did they make statements and/or consent tore orded interview. Did the police ever disclose whethe their whereabouts at the relevant time range was learnt.

  5. Ian Ronald Gardner says:

    Tasmanian police, judiciary and political system come across as totally corrupt. Need to go back to the beginning and examine the inadequate, incompetent police investigation. That seems to have started a chain of cover-ups by officials for reasons that can only be sorted out by proper enquiry.
    Congrats to Dr Bob Moles for his educated and constant work. Can only hope that you keep it up Sir. Persistence will prevail.
    Perhaps China, with its love of islands will look at Tasmania. If so, let them have it, as the existing justice system would fit right in with their regime.

    • Owen allen says:

      President Xi Jinping and his Government have higher moral standards domestically, than the State of Tasmania.
      Owen.

  6. Venessa says:

    If we refer to the cross-examination of the two defence forensic scientists (Mr Jones and Dr Reynolds) who appeared at Neill-Fraser’s right-to-appeal hearing we will notice that neither of the two disagreed with the forensic opinion of the two prosecution forensic experts at Neill-Fraser’s trial. We will further notice that one of the defence forensic experts (Dr Reynolds) said that a luminol can sparkle or it can glow. A glow is more likely to indicate blood whereas a sparkle indicates other substances. Mr Jones said that a long lasting glow is indicative of blood. He also said “You’d take notice of the strength of the glow, how long-lasting it is, whether it showed an constant colour. If it sparkles it is more likely to be something other than blood”.

    I read Dr Moles’ original complaint. My conclusion is that his opinions regarding the forensic evidence in the Neill-Fraser case aren’t based on knowing what experienced forensic scientists who use luminol have observed about the nature of luminol reaction to blood versus the nature of luminol reaction to non-blood substances. Dr Moles’ objection seems to be based on his opinion that since the nature of luminol reaction to various substances isn’t written in text books that therefore forensic scientists shouldn’t be allowed to express their opinion that are based on their experience with luminol.

    It is my opinion that because Dr Moles hasn’t had any experience in a court of law as a lawyer arguing about forensic evidence that his understanding is limited and that therefore his opinion is largely academic.

    • Don Wakeling says:

      What does your forensic insight tell you about Vass’s DNA concentrated on one area of the yatch. You know, the Bass DNA that, according to the prosecution, was walked onto the yatch from the sole of some investigator’s shoe.Of course, you could suggest that the DNA stuck to the shoe/shoes and from wherever in Hobart, ( it is not even speculated where???) it was trodden on , it just stayed in situ waiting to , miraculously, all come off on one place within an area the size of a diner plate.
      Try and fit that absurdity into your “forensic” reasoning. I think it’s back to common-sence school for you.

      • Mary says:

        Don Wakeling

        You should have read the 2021 CCA decision to understand what the forensic reasoning was of Sue’s defence forensic expert Mr Jones!

        The answer to your question is in paragraph 170 of the 2021 CCA decision.

        “Mr Jones was asked in examination in chief by the appellant’s counsel about the fact that there were no other findings of the same DNA profile elsewhere on the deck of the Four Winds. He gave evidence that the significance of that depends on whether the biological material was blood or other bodily fluids. He could not say for certain that the luminol test in detecting the presence of blood, actually related to the DNA detected. It may have been that the luminol reacted to something else and by chance the DNA detected was also deposited in the same area. Mr Jones said in his evidence that if the DNA profile related to blood that had been deposited by the sole of a shoe it is very likely that you would have seen the profile in other places on the deck because a luminol test is very sensitive. He explained that it may have been another substance on the deck such as saliva in which case luminol would not have reacted to it. If the DNA detected was from saliva it could have been elsewhere on the deck of the Four Winds, but not sampled because there is no screening test to detect saliva. “

      • Fiona Peate says:

        I understand that when the sinking boat was taken from its mooring to the Hobart docks and then out to Goodwood the boat was tied up with the port side next to the wharf. The DNA (plate sized sample of vomit) was on the starboard side so not easily deposited while anywhere else than on the mooring.

        • Don Wakeling says:

          When you refer to the “sinking”boat I hope are you not echoing the deliberately selective view of ” guilty knowledge ” that the super sleuth, now Chief Justice of Tasmania, attributed to the accused. He found that she was so knowledgeable of the yatch’s systems that she had the ability to sink the vessel. So blatent and completely reprehensible was his bias, or arrogance (probably both when you consider the number of “facts” he invented for the jury) he consciously didn’t tell the jury of the defence evidence that the yatch was virtually unsinkable due to certain watertight compartments and the bleeding obvious; it did not sink. Over the intervening years I wonder how many defence lawyers and their clients have recoiled in fear of fair outcomes when receiving the news from their clerks that His then
          Honour, Justice Blow would preside.

    • andrew says:

      Reply from Dr Bob Moles:

      If Venessa would read the chapter of our book on the role of expert witnesses that would assist in understanding the nature of my objection.
      The witness said that she could tell the reaction was to blood because of the quality and duration of the glow and sparkle response. She provided no objective measures of either ‘duration’ or ‘quality’. That means that we only have her word for it.
      The cases on admissibility of expert evidence state that the responses must be recorded in such a way that another similar expert could read the test results and be satisfied that the correct conclusions had been arrived at.
      Of course, the objection also fails to respond to the evidence of the expert which described the test as ‘preliminary’ and the legal cases of which there are a great many to say that it is wrong to assert that preliminary tests could be conclusive.
      So, even if the expert formed the opinion that the tests were actually responding to blood, that opinion of hers would not be admissible as an ‘expert opinion’ in legal proceedings.

    • Fiona Peate says:

      Luminol is a preliminary test. It can indicate the presence of up to 100 different substances including food, cleaning agents & itself if over sprayed. No matter what it does or doesn’t do, it remains a preliminary test and to be sure of what the substance that reacted actually is requires confirmatory tests to be done. They weren’t done.

  7. Diane Kemp says:

    What a disgrace the Tasmanian Integrity Commission is as it appears they can simply say any complaint is dismissed and that is the end of it!!!!
    Rhetorical question but why has this commission never been investigated?? It certainly does not do what it is supposed to do!!! But then this is Tasmania where those in the know scratch each others backs and ensure their precious carers are not disrupted.

    The lid on Sue’s case remains firmly closed but the questions will continue to be raised. Is there no one with any integrity willing to speak out or are people just happy that it is not them involved. But it certainly could be!!!! Careful Tasmanians what you wish for.

  8. David Smith says:

    I have had dealings with the Tasmanian Integrity Commission and found them to be Corrupt and Dishonest and their only use in Tasmanian Government is to cover up any offences committed by Police and or Public Servants or others. One Case was with Dishonest and Dangerous Police who assisted an Offender to Harass and Intimidate a Woman – part of which was firing a weapon at her. Recently I have been reading TOXIC about the Tasmanian Salmon Industry – This is typical of how Government Departments in Tasmania Operate. As above – The protection racket knows no bounds.

  9. FATHER TED says:

    Just watched the episode of the SUE Debacle where she is betraying the basic principal of those expecting justice to be done-NEVER TALK TO THE PIGS . They is the types that mount a suburban subway– pump 6 shots into your face–claim you were of poor character– oh well– that’s OK then . My little dog is not a pig . Even HE has a guilty look after he pisses on my petunias–

  10. John says:

    Is Dr Moles really saying that the DNA evidence should not have been admitted during the original trial? In that case no wonder the various appeals failed, relying as they did on the significance of the DNA linked to Meaghan Vass!

  11. Whalensky says:

    INTEGRITY ? Just choked on my Vegemite Sandwich-Now will have to rewrite that page of my PHD.Thesis (what is the subject of your research you ask ) Glad you asked–“Are Human Creatures just Skin Bags of Bacteria on a Rock orbiting a Star ) The Treatment of SNF SUE is just one more nail in the Putrid Reputation Coffin of the Nay Sayers .

  12. Whalensky says:

    The ABSOLUTE OBLIGATION of ANY REPRESENTATIVE OF THE AUSTRALIAN PEOPLE IN THE COMMONWEALTH PARLIAMENT OF THE LAND–( member of federal parliament )REGARDLESS of which Ultimate PIG Jurisdiction has done over a citizen–upon becoming aware of such COCKROACH BEHAVOUR to speak out in cases of Wrongful Conviction and IMPRISONMENT OR ANY TYPE OF PUNISHMENT inflicked on any Australian Citizen–even IF–and especially IF– One of the TIN POT Provinces of the Land behave in such manner as to cause a deliberate miscarriage of justice to any citizen–a clear breach of The United Nations Human Rights Agreements Australia is signed on to–this is a Federal Matter Andrew–A Federal Jurisdiction–There have been numerous breaches of THE HUMAN RIGHTS CONVENTIONS –A FEDERAL JURISDICTION– ONE LITTLE EXAMPLE OF STATE POLICEYMAN PIGGERY IN QUEENSLAND–$30 MILLION Damages to the Aborigines of Palm Island– which power drunk halfwitted moron thought he was in Nazi Germany and could walk all over common decency–by organising that bit of thuggery–and what of the piglets that obeyed the order to do a Gestapo Raid on Aboriginals homes ! If you can’t see this as a clear example of the same smart arse behaviour as the questioning of OUR SUE. AND SHE IS “OUR” SUE NOW — this is a Matter for the PEOPLE OF AUSTRALIA–We have to “force” our Federal Representative to speak on our behalf in the Nations Capital–(my representative is just a lying opportunistic swine) Guess what ? Nothing will happen !

    • Owen allen says:

      Stay calm Brother, breath deep, smell the vegemite, it is going down Bro, we will succeed, Sue will be exonerated, a National Criminal Case Review Commission will be established soon under this Federal Government.
      Owen.

  13. Don Wakeling says:

    How has it ever beome possible for so many institutions, in that one island state to, jointly and severally, combine to crush one individual. Trial by a Judge who invents “facts”and feeds them, in some self-empowered authority, to a jury . A state appointed prosecutor who fails every legal duty he is bound by. He lies by inventing more “facts”. One upon the other these two ” officers” of the law we live by, deliberately and systematically foul the jury against the the accused. Initial ” investigation” of the crime by Taspol; blatent refusal to follow up leads on the crime and the nearby boating community. Concealment of material evidence. With one only exception ( Justice Brett), total appellate court mistatement of law. Forensic nonsence by State controlled FFSC . And that body reports to the mind-closed Taspol. Deliberate Police and DPP interference with, and then false prosecution, of decent , innocent people trying to get to the truth of the crime. Government actions, even via the Tasmanian Prison system , to segregate and cower the prison . Government Ministers refusing Inquiry into these gross and manifest litany of deliberate injustice. Abysmal failure by elected Government members and Ministers to act . Are they not state and nation-wide toally and utterly shamed failures.
    Surely there MUST still be some Good and Able Tasmen to right this wrong.

    • Owen allen says:

      Tasmanian Totalitarianism, and unfortunately Don, all of Tasmanian society is tarred with the same brush; but for those that don’t participate are frightened to speak out and object. It is a very seriously evil and violent place; young Melbournian first day in Tasmania, uni student run over and killed, he stopped a car in Launceston to ask for directions, he was run over not once but twice. Asian student in Hobart went back to the flat in Glenorchy and he smashed her head in with a brick. German girl cycling went missing, Italian girl stabbed to death on North East beach, no arrests on those. I fought for years against local small town thugs, sanctioned by one and all, local council, tas police, state government bureaucrats, and state politicians, until the Tasmanian Ombudsman stepped in.

  14. Countess Antonia Maria Violetta Scrivanich says:

    The Tasmanian Integrity Commission should have been sacked many years ago for frustrating truth and justice.

  15. Rosemary says:

    Still too many questions go unanswered. Sue is stymied at every slow turn over 13 years. Heads in the sand attitude at the highest level trying to sweep issues under the carpet. So frustrating. Thank you Bob Moles for your continued fight. Plus Andrew and all supporters. No integrity at the Tasmanian Integrity Commission!

  16. Rodger Warren says:

    Hi Andrew
    It is incredible in a country like Australia that the Sue Neill-Fraser case continues to be ignored by the Federal Government.
    It is obvious to all that the Tasmanian Government is unwilling to accept a miscarriage of Justice occurred in her case.
    I applaud everyone who continues to fight for her release.

    • andrew says:

      The Feds have no jurisdiction…

      • Robert Moles says:

        “The Feds have no jurisdiction”. Whilst that is generally true in relation to the operation of state-based criminal laws, there is perhaps one exception. If it is alleged that conduct is in breach of our international human rights obligations, that is a matter for the Federal government which has the responsibility to ensure compliance with Australia’s international treaties.

        • andrew says:

          Thanks Bob – and of course that is relevant to this case, as you have previously pointed out. Yet not even that is being taken up by the Commonwealth Attorney-General.

          • Jerry Fitzsimmons says:

            Totally agree Andrew, and of course Bob. Has anyone written to the current Commonwealth Attorney-General? I will. We all know by now what politicians say, such as, “no one asked me to intervene”. We can’t ‘assume’ that these politicians, smart as they want us to think they are should know, even though we know the Tasmanian Attorney-General ignores the fact that a wrongful conviction may have occurred here. The Federal A-G should be given the same information as was given to the Tasmanian government, about the facts, possibly even human rights issues, and more. Does someone like Andrew Wilkie, a Federal politician get involved, maybe because he sees Sue Neill- Fraser is an Australian citizen? C’mon, have we not witnessed the breaking of conventions by a very high profile Federal minister assisted apparently by a former Federal-Attorney General. Who could argue that we don’t need a Federal and State based ICAC, in ALL States? These are all individuals lengthening a sentence on a wrongfully convicted woman and with all their might and power, they cannot yet find a ‘missing person!

      • FATHER TED says:

        The Feds have total Jurisdiction over matters concerning breaches of THE HUMAN RIGHTS CONVENTIONS. (Ya can’t do over ya citizens–ya mongrels)

  17. Keith says:

    The protection racket knows no bounds!

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