A wrongful conviction of a whistleblower

The Australian Federal police withheld exculpatory evidence after their laziness was exposed to the media

WHISTLEBLOWER Allan Kessing may have been wrongly convicted after critical information was withheld from his defence lawyers and never presented to the jury.

After reviewing the information that was withheld from Mr Kessing's legal team, criminologist Paul Wilson said the former Customs officer's criminal conviction "would clearly fall into the category of a wrongful conviction".

Mr Kessing was convicted in 2007 of breaching section 70 of the Commonwealth Crimes Act by leaking to The Australian long-ignored reports revealing criminality and flaws in security at Sydney Airport.

Professor Wilson said the information that was withheld during the trial meant the conviction "appears to be based on flawed and inaccurate circumstantial evidence and, at that stage, an ignorance of the Customs investigations" into the leak.

Professor Wilson is chair of criminology at Bond University and co-convenor of the nation's first university course on miscarriages of justice. He was speaking after examining a letter about the leak that was sent from Customs to the Australian Federal Police on June 1, 2005, the day after details of the Customs reports appeared in this newspaper.

That letter, which carries a "received" stamp, was addressed to federal agent Fiona Drennan of the AFP's transnational crime co-ordination centre. It has been supplied to Mr Kessing by a person he describes as "a wellwisher".

Barrister Peter Lowe, who represented Mr Kessing during his trial, said the information in the letter could have been used to support Mr Kessing's argument that somebody else leaked the reports to The Australian.

The letter was written by Geoff Lanham, who managed the Customs internal affairs unit, and outlines his unit's investigation of the leak. He told the AFP that Customs believed "at least two" Customs officers with knowledge of the reports had unlawfully provided information to this newspaper.

The letter outlines dates and circumstances in which reporters from The Australian and another organisation, who both had knowledge of the leaked reports, stated they had more than one source inside Customs.

Mr Lowe said the letter should have been made available during Mr Kessing's trial. Had he known of its contents, he would have run Mr Kessing's defence very differently. "I would have gone in hard on the potential for a second source, that is, a source other than Allan, and that one or more people who gave evidence -- and didn't disclose it -- may have been lying," Mr Lowe said. He said the fact that Customs believed there was a second source had never been revealed.

There is no suggestion that Mr Lanham, who is no longer employed by Customs, or agent Drennan were responsible for preventing the information in the letter being conveyed to Mr Kessing's lawyers.

Professor Wilson said Mr Kessing's consistent argument that he was not responsible for the leak to The Australian "gains enormous credence as revealed by the contents of this letter".

This is the second time information that was withheld from the jury has come to light about the Kessing case.

In September 2009, Mr Kessing revealed one of the factors behind his decision not to give evidence during the trial. While continuing to deny he leaked the reports to The Australian, he said he had secretly provided access to one of the reports to solicitor Nathan Cureton, a staff member who had been employed in the Sydney office of Labor frontbencher Anthony Albanese, who is now Infrastructure Minister. Mr Kessing had hoped in vain that Mr Albanese would use parliamentary privilege to expose security flaws at Sydney Airport.

The meeting with Mr Cureton took place in April 2005, about two months before details of the reports were published in The Australian. Mr Kessing did not take the stand at his 2007 trial over the leak to The Australian in order to ensure his leak to Mr Albanese's office remained secret. Despite his public disclosure in 2009 of the leak to Mr Albanese's staffer, Mr Kessing has never been questioned about the incident by the AFP.

Details of the leak to Mr Albanese's office and the belief by Customs that there were two sources for The Australian's report was not available to the NSW Court of Criminal Appeal in December 2008, when it rejected Mr Kessing's appeal.

Judge Virginia Bell, now of the High Court, ruled that, while part of the trial judge's instructions to the jury had been wrong, this error was not enough to undermine the "powerful circumstantial case" against Mr Kessing.

Professor Wilson said the inaction by federal authorities over the leak to Mr Albanese's staffer "raises the question as to why not?" "Is there a concern that any prosecution would inevitably involve a minister in the Gillard government?" he said.

The Lanham letter reveals Customs tried to piece together background information about the leak to The Australian with assistance from the agency's corporate communications staff.

The letter shows corporate communications officer Simon Latimer provided the internal affairs unit with details of remarks made by reporter Martin Chulov on Sydney radio station 2GB on May 31, 2005, the day his article was published in The Australian. Mr Latimer reported to internal affairs that Chulov had said "information was coming to him from two Customs sources".

The Lanham letter contains details of talks between Norm Lipson, a contract journalist for Women's Day, and corporate communications officer Zoe Ayliffe. Lipson contacted her on May 16, 2005, saying he was writing on airport security and had information "from a couple of sources" inside Customs. He had asked questions about drug courier Schapelle Corby and if two reports had warned about corrupt baggage handlers, the letter says.

Mr Lanham told the AFP he believed Lipson did not have copies of the reports. But he believed Lipson had been unlawfully supplied with information about the reports by "an unknown Customs officer". The letter does not reconcile this reference to a single Customs officer with Lipson's statement he had "a couple of sources".

Mr Lanham wrote he believed Chulov and his co-author Jonathan Porter had obtained information from "at least two Customs officers", one of whom was said to have given Chulov a document. The letter has emerged as the federal government faces pressure from independents Andrew Wilkie and Nick Xenophon.

Mr Wilkie raised the question of a pardon with Julia Gillard during a 45-minute meeting on February 8, almost 18 months after Senator Xenophon began a series of letters to Home Affairs Minister Brendan O'Connor seeking a pardon for Mr Kessing.

Asked about the outcome of the talks, the Prime Minister's spokeswoman said: "The minister for home affairs is the minister responsible for the consideration of pardons."

Senator Xenophon's first letter to Mr O'Connor seeking a pardon for Mr Kessing is dated October 1, 2009. It said Mr Kessing was unable to pay for a High Court challenge and unable to endure the strain of more legal action. Senator Xenophon said he was "disgusted" the letter to the AFP had been withheld from Mr Kessing's legal team.

Professor Wilson said it was clear that Mr Kessing had leaked the report "but not to The Oz". "Even assuming that he did leak to The Oz, as well as Albanese, Kessing in my view is a hero -- his motives were entirely in the public interest, may well have led to changes in airport security that saved lives and exposed a potential criminal culture among some segments of personnel working at airports.

"His financial devastation for acting in the public interest and his present legal position is an appalling indictment on a government that says it respects human rights and justice," Professor Wilson said.

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