Parallels between Mallard Case and Smith Beach Case. Part 2.

The CCC's dirty war on Burke and Grill - the Smiths Beach Investigation. Part 2. The Mike Allen Report.

Like the Andrew Mallard case, the Smiths Beach investigation was neither honest nor impartial, as shown by the Corruption and Crime Commission's investigation of Mr Mike Allen.

The $8 million the CCC spent on the Justice Dunford's review of the Andrew Mallard case showed the police withheld important and vital evidence from the defence and behaved in a manner that resulted in Mallard's wrongful conviction.

The $50 to $60 million Smiths Beach investigation by the Corruption and Crime Commission also shows the same lack of honesty and impartiality, which in Judge Dunford's opinion was also lacking in the Mallard investigation by police.

Why does Mike Children Overboard Silverstone tolerate similar unethical behaviour by his investigators which resulted in the now discredited Smiths Beach Report? What does this say about his professionalism and character? Does Silverstone want to risk another miscarriage of justice?

The investigation into Mike Allen was appallingly incompetent, yet there has been no apology just brief dissembling comment from the nameless faceless spokespersons in the CCC. CCC Exposed put the appalling treatment of Mike Allen more forcefully than the Desert Rat's first examination of Mark Ingham's behaviour.

"Senior CCC investigation officer Mark Ingham was the Officer in Charge of the Inquiry into Smiths Beach when senior DPI Officer Mike Allen was judged guilty by the CCC of serious misconduct. The finding turned on claims that Mr Allen asked one of his officers – Ms Barbara Pedersen – to write a report on the development. The Commission found that former Premier Brian Burke had suggested to Mr Allen that Ms Pedersen write the report and this, the Commission said, showed Mr Allen was influenced by Mr Burke and, as a result, was guilty of serious misconduct.

There is just one problem: Mr Allen was not asked by Mr Burke to instruct Ms Pedersen to do anything; Ms Pedersen never wrote any report and was never asked to do so.

How could such a monumental injustice be done to Mr Allen, a highly regarded senior public servant with an impeccable record?

Enter Mr Ingham.

Mr Ingham actually interviewed Ms Pedersen before the finding of serious misconduct was made against Mr Allen. In that interview, Ms Pedersen told Mr Ingham she was never asked to write a report and had not done so. She told Mr Ingham that no such request had been made of her by Mr Allen.

Now, most fair minded people would have thought: “That’s the end of it – Mr Allen didn’t do what he was accused of”.

But not Mr Ingham!

In his report overturning the finding against Mr Allen, the Parliamentary Inspector Malcolm McCusker QC reported:

On Friday, 29 February 2008, I interviewed Mr Mark Ingham, senior investigator with the CCC. Mr Ingham had been the investigator in charge of the "Smiths Beach investigation". With my permission, his barrister was present.

The Parliamentary Inspector asked Mr Ingham about his interview with Ms Pedersen

MCCUSKER: … Now, when you interviewed Miss Pedersen, having completed the interview, what did you do with the record of interview? Did you convey the contents of it to anyone else?

INGHAM: I don’t know Sir…I didn’t do a written report to the best of my knowledge I most certainly, no. I can’t remember who I reported to if

MCCUSKER: In particular, you may not be able to be specific in terms of memory but as a matter of practice would you have conveyed the contents of that interview to a Commissioner or any senior officer or lawyer?

INGHAM: I’m sure I would have done, Sir, but I have no recollection of …

Remember: The claim that Mr Allen instructed Ms Pedersen to write a report is the crucial key point on which the Commission justified it’s finding against Mr Allen…here it’s clear the Senior Investigator in charge of the inquiry knows the claim is untrue but can’t recall telling anyone.

Undeterred by what he had learned from Ms Pedersen, Mr Ingham produced a "Final Report and Recommendations" on 2 April 2007.

It recommended that "consideration be given to a finding of misconduct", based solely on the incorrect proposition about which Mr Ingham knew the truth.

The crucial importance of this key point was not lost on the Parliamentary Inspector who tried time and time again to get some sense out of Mr Ingham.

Mr McCusker asked (Mr Ingham) if he had been involved in the formulation of the "misconduct finding" in the CCC's Report. He said that he had not, and was unable to tell me how that proposition had evolved, or by whom.

He, the chief investigator, had not suggested it.

Mr McCusker put to Mark Ingham that the evidence of Ms Pedersen, given to him in the interview of May 2007, contradicted the "finding" in the CCC's Report that Mr Allen had appointed her to write "the DPI report"

The Parliamentary Inspector then asked Mr Ingham whether he had realised this, when he read the CCC Report.

He said that he had not.

Then Mr McCusker asked Mr Ingham whether he agreed that, given the terms of the misconduct finding, witnesses who were obviously relevant were not only Ms Pedersen, but also Ms Cherrie, Ms Clegg, and Mr Singleton (the Director to whom they, and Ms Pedersen, were responsible).

Mr Ingham accepted that, and said that he considered it was unnecessary to interview them because he was investigating possible "misconduct" (and not a criminal offence).

Pity Mr Allen, his reputation and his career.

Mr McCusker then asked Mr Ingham if he had read the CCC Report before it was tabled.

MCCUSKER: Were you asked to consider it in any way before it was finally tabled?

INGHAM: Yes.

MCCUSKER: …And did you read it?

INGHAM: Yes.

MCCUSKER: The report makes no mention, as you are no doubt aware, that’s the CCC report makes no mention of the contents or even the fact of the interview that you conducted in May two thousand and six (sic, seven) with Miss Pederson. Does it?

INGHAM: Not with. She was or

MCCUSKER: No.

MCCUSKER: True. But did you, did you notice at the time the report was produced before it was finally tabled that there wasn’t any reference to what Miss Pedersen had told you?

INGHAM: No it didn’t.

MCCUSKER: No. It didn’t jump out at you?

INGHAM: No Sir it didn’t.

MCCUSKER: that was only the negative finding. Now when that (CCC) report was finalised, by then of course you’d, you’d interviewed Miss Pedersen.

INGHAM: Yes.

MCCUSKER: And Miss Pedersen had told you that as far as she was aware there was no report.

INGHAM: I didn’t consider it at the time Sir.

MCCUSKER: But before making a finding of misconduct, against Mister Allen …based upon his alleged agreement with Mister Burke to have her, Miss Pedersen, write the report in reference to Miss Clegg … did you not consider that it was desirable and indeed essential to determine whether any such report existed?

INGHAM: I didn’t and the Commissioner didn’t.

Mr McCusker continued to say that the CCC’s preparedness to rely on speculation, to support its conclusion is disturbing.

He said it showed a lack of objectivity (and) coupled with a "fudging" of the evidence…in the cases of Mr Allen (and Mr Frewer) serious damage was done to their reputations, and their careers, by the public examination and the accusatorial way which counsel assisting put questions.

They were sometimes based on incorrect information, as for instance, when Mr Urquhart, counsel assisting, put to Mr Allen (T1294):

"Were you aware that your colleague, Mr Frewer, was also assisting Mr Burke in getting amendment 92 deferred?".

There was in fact no evidence to support that proposition; nor had the CCC any basis for suggesting that Mr Allen was "assisting Mr Burke in getting amendment 92 deferred".

Mr McCusker concluded: ‘Such "loaded questions" are damaging.’

In his most damning conclusion, Mr McCusker reported:

Whilst both men (Mr Frewer and Mr Allen) have been vindicated by the fuller (and objective) investigation … showing the CCC's investigation to be inadequate and its "findings" to be seriously flawed, that does not compensate them for damage to their careers, the anguish and stress which, for over 12 months, they endured as a result of the CCC's public examination and accusations, followed (many months later) by the findings of "misconduct".

Which brings us back to Mr Ingham.

The one person who had full knowledge of the truth because he interviewed Ms Pedersen and learned the “Report” did not exist, was Senior Investigator Mark Ingham - who could not remember if he told anyone what he learned.

With his barrister present, Mark Ingham – a trained and experienced investigator - repeatedly failed to recall crucial details of his inquiries and, in the final analysis, did nothing when he read the CCC report condemning Mr Allen for something he (Mr Ingham) knew to be untrue."

Think about the unethical practices in the investigation of the murder, for which Andrew Mallard was wrongfully convicted and ask why Mike Children Overboard Silverstone and the CCC are reluctant to prosecute the police and the DPP prosecutor! They may have to look at themselves!

The Desert Rat asks, "How different was the behaviour in both cases?"

Parallels between Mallard Case and Smith Beach Case.

The Smiths Beach Investigation, like the Mallard Case, was neither honest or impartial. Part 1. The Andrew Mallard Case.

The parallels between the police handling of the Andrew Mallard case and the Corruption and Crime Commission's investigation of Smiths Beach matters and their report, have many similarities. Mallard, who was innocent, spent 12 years in prison.

The opinions expressed by Justice Dunford QC $8 million CCC investigation, which leaves many questions unanswered, revolve around the behaviour of various police officers and a prosecutor which were in Dunford's opinion, not honest or impartial.

The report reveals that evidence that was exculpatory (that shows a person to be not guilty of a wrongdoing) was ignored and omitted by police. Evidence tampering by police; original witness statements that did not fit, were altered and changed by leading on witnesses and getting them to change their statements. The accused Andrew Mallard was effectively put "out of circulation" by the police making it difficult for Mallard to get any assistance while the police assembled their case.

In the Mallard case, Justice Dunford set out his opinion of various police officers and a prosecutor's actions, he said:

Police officer Caphorn wrote a letter to the Police Prosecutor dated 17 June 1994 containing errors and incorrect statements, constituted the performance by him of his functions in a manner which was not honest or impartial resulting in Andrew Mallard being remanded to Graylands for further psychiatric assessment and Dr O’Dea admitted him as a compulsory patient.

If the true state of affairs had been disclosed, it is possible that Andrew Mallard would have been released on bail and, whatever the intention, the effect of the remand was that Andrew Mallard was out of circulation whilst police built up their case against him.

Mallard had not been charged with the murder of Mrs Lawrence and the only charges he was facing were assaulting Det Sgt Caporn on 10 June and the charges arising from his arrest on the morning of 23 May 1994.

Another police officer requested Mr Lynch to delete from his report all reference to the salt water testing which constituted the performance by him of his functions in a manner which was not impartial.

That Det Sgt Shervill engaged in misconduct causing the witnesses Katherine Barsden, Michelle Englehardt, Meziak Mouchmore, Katherine Purves and Lily Raine, to alter their statements as they did without any reference in their final statements to their earlier recollections, involved the performance of his functions in a manner which was not honest or impartial.

That Det Sgt Shervill engaged in misconduct by making false entries in the Running Sheets relating to the amendments to the statements of the witnesses Katherine Barsden, Michelle Englehardt, Meziak Mouchemore, and Katherine Purves, involved the performance of his functions in a manner which was not honest.

That Det Sgt Shervill engaged in misconduct by failure to disclose to the DPP’s Office the prior statements of Katherine Barsden, Michelle Engelhardt, Meziak Mouchemore, Katherine Purves and Lily Raine, the original report of Bernard Lynch and details of the unsuccessful efforts by police to find a tool capable of inflicting the injuries suffered by Mrs Lawrence’s, involved the performance of his functions in a manner which was not honest or impartial and/or involved a breach of the trust placed in him by reason of his employment as a public officer.

That Prosecutor Mr Kenneth Bates engaged in misconduct in conducting the trial on the basis that the murder weapon was a wrench as drawn by the accused, but making no attempt to prove that such weapon could have caused the deceased’s injuries, particularly in circumstances where it was known that there was a problem about the pattern of some of the injuries, and involved a breach of the trust placed in him by reason of his employment as a public officer.

That Prosecutor Ken Bates engaged in misconduct by failing to disclose to the defence the results of the pig’s head testing of the wrench constituted or involved a breach of the trust placed in him by reason of his employment as a public officer.

It is not surprising that there was a miscarriage of justice in the original Mallard trial and the Court of on which sat Judge Roberts Smith the now CCC commissioner.

No criminal charges have been laid by against any of these police officers or the prosecutor.

The Desert Rat doe not find that surprising when we look at the behaviour of investigators working under Mike Children Overboard Silverstone on the Smiths Beach investigation.

Even when their behaviour has been exposed, no disciplinary action has been taken by Mike Silverstone the Executive Director of the CCC.

How good is Mike Silverstone's memory?

Why did Silverstone have false testimony charges laid where the exact detail of a lawful conversation could not be recalled accurately?

Michael Greenberg of the New York Review of Books in a very enlightening review of Sue Halpern's Can't Remember What I Forgot: The Good News from the Front Lines of Memory Research - shows just how dangerous the Corruption and Crime Commission charges of false testimony can be.

When the Desert Rat read the various media accounts of Julian Grill's false testimony charge and trial before a Magistrate, it sounded like Grill denied or thought he never spoke to Mike Allen at the Department of Planning and Infrastructure, which was not the case. In fact Julian Grill admitted under oath that he had a number of conversations with Mike Allen about a variety of planning matters - which were all intercepted and taped by the CCC, but did not recall a conversation which apparently touched briefly on Smith's Beach which was a matter being dealt with by Brian Burke.

What is both strange and malicious is that it was subsequently determined (when some crucial evidence, known to, but deliberately left out by the CCC), that Julian Grill had not done anything unlawful nor had Mike Allen a senior public servant. Yet the CCC supremos Silverstone and Roberts-Smith still pursued an expensive prosecution of alleged false testimony against Grill. A case where they have to prove intent to give false testimony - even though the whole process was lawful. Mind boggling?

The point of all this vindictive prosecution escapes the Desert Rat. Halpin's account of recent memory research shows how dangerous charges like this can be, even where very serious matters that involve unlawful conduct are dealt with.

Giving evidence on matters at the CCC public hearings circus would be incredibly stressful, because the CCC does not advise the victim about what matters, on which they intend to publicly interrogate them. The CCC have usually seized all the victims files and records so that they cannot refresh your memory on issues they may anticipate could arise. Witnesses can be maliciously set up by this evil and poisonous practice used by the CCC.

Greenberg writes in his review (which can be read here):

In her fascinating book about memory loss and the efforts of scientists to understand it, Sue Halpern reports an experiment in which members of the Cambridge Psychological Society were asked to reconstruct a meeting of the society that had taken place two weeks before. The average person was barely able to recall 8 percent of what had happened, and almost half of this was incorrect, peppered with the recollection of events that had never occurred or that had occurred elsewhere.

Such paltry power of retrieval in an educated, and supposedly attentive, group is not surprising. Memory, Halpern reminds us, "is not an archive," nor does it record in real time. It lives in the brain "in chemical traces. The traces can fade...and they can be augmented," depending on one's experience and observation. The intensity of an experience may sharpen the memory of it, while making it even less accurate. During situations of extreme stress, for example, the body is flooded with damaging amounts of the hormone cortisol, causing communication relayed by neurotransmitters and other chemicals in the brain to break down.

Silverstone's "Chinese Whisper" reflects a lack of basic administrative skill

What happened when Silverstone transmitted sensitive information orally and without confirmation?

Like the CCC's Smith's Beach fiasco, the Children Overboard political fiasco was also a massive waste of taxpayer's money and resources.

The Desert Rat was interested to read a submission by Commodore Sam Bateman (ret.) to the Children Overboard Inquiry. Under the heading "Communications", he writes:

" The Minister for Defence has acknowledged that there was a breakdown of communications within his portfolio with the “"children overboard”" incident (3) but I believe the causes of confusion are deeper than that.

Developments in communications over the last decade or so, particularly email and mobile phones, have meant that an unofficial and informal channel of communications has developed within the Defence Force that to some extent runs counter to the formal chain of command and formal message channels.

Frequently the informal channel will run ahead of the formal channel leading to the risk of “Chinese whispers” as information is passed from one person to another. Chinese whispers” clearly were happening during the “children overboard” incident as demonstrated for example, by the controversial phone conversations on 7 October 2001 between Commander Banks and Brigadier (Mike) Silverstone and then further “up the line”.

As now appears accepted, the conversation between (Commander) Banks and Silverstone was the main source of the myth that was passed onto Air Vice Marshall Titheridge then to Ms Jane Halton and then seized upon by the political “spin doctors”.

At the meeting of the People Smuggling Task Force on Sunday 7 October (4), Group Captain Walker appears to have had the formal messages but by then, the informal channel had jumped ahead and “the horse had bolted”.

As Dennis Shanahan, Political Editor of The Australian, has suggested, the entire episode was the result of senior professional military officers hurriedly transmitting information orally and without confirmation”.(5) I agree with this assessment but in defence of the senior military officers, I must also say that they were responding to a heavily politicised environment created by aggressive, “shoot from the hip” bureaucrats in senior positions in Canberra.

What can be done about this situation? It is a consequence of technological advances and to some extent, it is inevitable that in a highly political charged situation, bureaucrats and ministerial staff in Canberra are going to seek information from the operational level on which to base their advice to the Minister.

However, for officers at the operational level, these phone calls are highly disruptive. The same might be said within the Defence Force about phone calls from further up the operational chain of command. As Greg Sheridan has rightly observed in The Australian, these phone calls are “a dysfunctional aspect of modern military organisation”. (6)

While Brigadier Silverstone, as Commander Northern Command, was notionally in command of border protection operations, he is an Army officer and not experienced in maritime operations.

His (Silverstone's) phone call to Commander Banks (7) in the heat of the operation on October 7 would not have been helpful, particularly as Banks may have found the need to explain carefully some basic issues of seamanship, seaworthiness, life saving at sea, navigation and so on.

The present system of operational command and control in the Defence is a joint one and officers trained in one military environment (air, land or sea) can find themselves in command of operations in another environment. However, it is most important that they do not move personally into a mode of giving advice or asserting influence outside of their experience. I suggest that this was a feature of the phone calls between Silverstone, Titheridge and Halton. "

The Desert Rat thinks history is repeating itself with Brigadier Mike Silverstone (ret.)

(3) John Kerin, “Communications breakdown, says Hill”, The Weekend Australian, The Nation, February,
16-17, 2002, p. 4.
(4) Marian Wilkinson, “Tampering with the evidence”, The Sydney Morning Herald, News Review, February
16-17, 2002, p.23.
(5) Dennis Shanahan, “A damning indictment of bureaucrats”, The Weekend Australian, The Nation,
February 16-17, 2002, p. 4.
(6) Greg Sheridan, “Out of the blue, a big whopper”, The Weekend Australian, Inquirer, February 23-24,
2002, p.23.
(7) Marian Wilkinson, “A few good men”, The Sydney Morning Herald, News Review, February 23-24,
2002, p.27.