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Victoria: interview with criminal defence lawyer about the nine people who were arrested in Melbourne on terrorism charges.

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Wednesday, 9 November


FRAN KELLY:  First to yesterday’s terror attacks and, as we’ve heard, Australia’s biggest ever counter-terrorism operation is continuing with federal police searching another home in Sydney’s south west overnight. No arrests were made there.


Rob Stary is the Melbourne criminal lawyer representing eight of the nine men arrested yesterday in Victoria and he’s concerned about some of the comments from senior police, politicians and the media. Referring to yesterday’s arrests, he says much of it was prejudicial. Rob Stary will be back in court later this morning to seek bail for two of his clients. He joins us now from Melbourne.


Rob Stary, what’s your concern in particular about the public comments made by police and politicians yesterday?


ROB STARY:  Good morning, Fran. There are two aspects that concern me: one is that I think there’s been some political opportunism engaged in, in terms of taking credit for the so-called arrests; the Prime Minister engaging in a press conference saying that he’d been vindicated insofar as the Melbourne suspects are concerned. They are not charged with any offence that arises from the recent amendments. They are charged with offences that are alleged to have commenced in July 2004.


FRAN KELLY:  But just on that point, Rob Stary, to be fair, the Prime Minister was asked if this was vindication. He responded that it was and the police commissioners seemed to have backed him up. They all—New South Wales, Victorian and federal police commissioners all said those new laws assisted with yesterday’s raids.


ROB STARY:  It was neither reflected in the charges nor reflected in the evidence that was given in court and I think if you watch Christine Nixon’s comments during the course of the day, she begins to retreat. I think she understands that those comments, firstly, do prejudice our clients’ right to a fair trial and they were not accurate. So that’s one aspect.


The second aspect is we can’t move to a system where we have a presumption of guilt. We cannot allow politicians particularly, chief commissioners who have a vested interest on behalf of the prosecution to try and contaminate the public view of these men. There would be very few people, apart from your listening audience, that might understand that these men have a presumption of innocence.


FRAN KELLY:  It’s difficult, though, isn’t it in a case like this when a massive raid has been carried out? Obviously, there’s a lot of fear through the community. Don’t police and politicians have a duty to reassure the public and say: we’ve done this for this reason and reassure people that things are safer now?


ROB STARY:  And it used to be the case that the chief law officer of both the Commonwealth and the state would be warning the community that these men are presumed innocent. Because these charges necessarily are political in nature, you remember that the nine people who are charged in Melbourne are charged with membership offences. They are not charged with being involved in the assisting or preparation of a terrorist offence. They are simply charged on the basis of their membership of an organisation—unnamed, unspecified—and their linkage is that they are in the same prayer group in the same mosque.


FRAN KELLY:  What about those arrested in Sydney? They’re being charged with something that, on the face of it, seems more serious: planning, involved in the planning of a terrorist attack. Are you saying it’s inappropriate for someone like the New South Wales Police Commissioner, Ken Moroney, to tell the public that the police have foiled a significant imminent attack that could have been catastrophic? Are you saying that’s inappropriate?


ROB STARY:  I can’t comment on the Sydney cases because I know nothing of them but I do know of the Melbourne cases and I do know that there was no imminent threat or imminent terrorist attack in Melbourne. And to suggest that there was, as I said, is neither reflected in the charges nor reflected in the evidence and it’s simply wrong for people to take political kudos as a result of those arrests.


FRAN KELLY:  Are you saying your clients can’t now get a fair trial or won’t get a fair trial?


ROB STARY:  Fran, we’ll be urging any prospective jury to try and put aside any of the material that may have contaminated their view already. But it will be difficult. The reality is these men will have ... the reality is that they’ll have a reverse onus. They will have to prove their innocence rather than the way our criminal justice system is designed to work.


FRAN KELLY: And how can that be amended now? Is there something ... we’re about to speak to Attorney-General Philip Ruddock.


ROB STARY:  Mr Ruddock, and I’m sure he will do this, but Mr Ruddock will say these men have a presumption of innocence and he should be forewarning the community not to be affected by the hysteria that’s been whipped up, promoted by less sophisticated journalists and other media outlets that just see this as a way of selling newspapers or promoting their news services.


FRAN KELLY:  The language used by the prosecution in court in Melbourne yesterday was pretty strong. Were you surprised by the colour and strength of the details outlined by prosecutor Richard Maidment?


ROB STARY:  Of course. When you have people who are charged with membership offences and say that as a result of their membership they’re designed to kill innocent men, women and children, it’s just emotive language. It doesn’t help the situation. It doesn’t go to the evidence at all. There’s nothing [inaudible] about innocent people and particularly described as men, women and children being at risk.


FRAN KELLY:  There is, apparently, or there will be, tendered, evidence that will go to talk about discussions of making bombs, buying bomb-making chemicals and firearms. All of that will be deeply concerning to the Australian public.


ROB STARY:  Of course it will and it will be for the court to determine whether there’s any truth in those allegations. At this stage we have just allegations. There’re no weapons, there was no chemicals, there was no apparatus and there was no other documentation of an incriminatory nature that was found as a result of the raids. These people could have been arrested six months ago, 12 months ago, July 2004. But they weren’t.


FRAN KELLY:  Well, they were, in fact ... many of them were raided six months ago, weren’t they?


ROB STARY:  They were raided by ASIO, who have a different function. They’re there to compile intelligence. They don’t have a prosecutorial or a police function in the same way as the Australian Federal Police. But they’ve been under surveillance for over 15 months.


FRAN KELLY:  One of those you represent, the cleric Abu Bakr, who’s really being portrayed as a leader of these groups of men, has been interviewed on television in recent months arguing for Islam as the only true religion saying his religion of Islam left no room for tolerance of other religions, explaining how believers felt the first drop of blood spilt in defending Allah removed all their sins. That kind of talk, when you see it linked with what’s alleged, you know, plans to buy explosives, build explosives and terrorist attacks, it’s very alarming, isn’t it? Yet you’re arguing for people to be released on bail. Can you see why people would be resisting that?


ROB STARY:  You’re referring to Mr Benbrika and he hasn’t made an application for bail. And Fran, I grew up as a Catholic and I was involved in a church that described itself as the one true faith and itself having represented the body and blood of Christ. Now I don’t say that in a sacrilegious way but every religion promotes themselves as the one true faith.


FRAN KELLY:  Okay. Just before we leave you, and you’re obviously heading off to the courts this morning, and we move to the Attorney-General, Philip Ruddock, what’s your key message to the government now at this point in this operation?


ROB STARY:  I would ask that the government desist from making comments that might suggest that these people are guilty. And as I said, I’m confident that Mr Ruddock will say: these men have a presumption of innocence and that should be assumed.


FRAN KELLY:  Alright, Rob Stary, thank you very much for joining us on Breakfast .


ROB STARY:  Thank you, Fran.


FRAN KELLY:  That’s Melbourne criminal lawyer, Rob Stary. Those charged following yesterday’s arrests in Melbourne will appear before a committal hearing set down for January 31 and applications for bail for some of them he represents will be made today.