AN EMINENT LEGAL WARRIOR IN THE HEINER AFFAIR LAID TO REST
10 August 2017
On the brisk and sunny winter afternoon of 1 August 2017, the funeral service for one of Australia's former leading Queen's Counsel, Mr David Fulton Rofe, was held in All Saints' Anglican Church in the Sydney suburb of Woollahra following his death on 21 July 2017. Between 70-100 mourners attended. This included his family members, loyal carers, former High Court Justice the Hon Michael Kirby AC, former Australian Attorney-General the Hon Bob Ellicott QC, many former members of the NSW Judiciary, as well as present and former members from the NSW Bar and solicitor ranks.
Mr Rofe had a long and distinguished career fearlessly practising law at its highest levels in New South Wales and across the nation. Some of his landmark cases were Sankey v Whitlam, the Greek Conspiracy case, the committal hearing in R v Rogerson, the 1992 Premier Nick Griener/Dr Terry Metherall ICAC Inquiry, and the on-going Heiner affair.
One of the four invited eulogists was the Heiner affair whistleblower Kevin Lindeberg from Queensland.
THE ENDGAME CLOSES IN ON THE LONG-RUNNING HEINER AFFAIR
CCC CLUTCHES AT DESPERATE MEASURES IN DESPERATE TIMES
14 December 2016
An extraordinary event setting off a chain of others has finally erupted into the public domain. It's the ticking time bomb only a few in public office knew about for the last year or so. That's all changed now, although there is more disturbing news to come. The watershed event occurred in April 2015. It's about the extraordinary decision by Crime and Corruption Commission (CCC) to secretly breach a public trust with unprecedented and far-reaching consequences for the sound governance of Queensland.
THE HEINER AFFAIR THE LEGALISM SERIES – NUMBER ONE
“…The importance of the rule of law lies partly in the power it denies to people and to governments, and in the discipline to which it subjects all authority. That denial, and that discipline, are conditions of the exercise of power, which in a democracy, comes from the community which all government serves. Judicial prestige and authority are at their greatest when the judiciary is seen by the community, and the other branches of government, to conform to the discipline of the law which it administers. The rule of law is not enforced by an army. It depends upon public confidence in lawfully constituted authority. The judiciary claims the ultimate capacity to decide what the law is. Public confidence demands that the rule of law be respected, above all, by the judiciary.”
Chief Justice Murray Gleeson AC QC “Courts and the Rule of Law” – The Rule of Law Series – 7 November 2000
The commitment to “legalism” by any government in all its dealings is axiomatic to the proper functioning of the rule of law. One cannot exist without the other. This is to say that any democratic government which claims to respect the law should, as a matter of caution and duty, constantly ask itself whether what it intends to do is legal in the full realisation that if it is not, or is later found to be illegal, then legal consequences must flow against the government just as they do against any ordinary citizen who acts similarly. Why should this be so? Because the law is, and must be, no respecter of persons regardless of who commits the breach. This is especially vital when the breach is criminal in nature and even more so when it concerns the actions of government in a democracy. For any government or law-enforcement authority to believe that the law, especially the criminal law, ought not to apply to them when it has found a citizen guilty of a crime committed in materially similar circumstances, is to reduce the law to an instrument of sectional, arbitrary oppression, by and at the hands of government and law-enforcement authorities.Full article here >>>>>>
AND SO IT CAME TO PASS - THE HEINER AFFAIR ENDGAME BEGINS….
On 27 November 2014 Queensland’s most respected long-serving politician, the Independent Member for Gladstone, Mrs Liz Cunningham MP, rose from her seat in parliament and moved her 1st reading speech to establish the Parliamentary (Heiner Affair and Related Matters) Commission of Inquiry Bill 2014 to investigate what might be called the unfinished business of this scandal – its protracted systemic cover-up.
In simple terms, how was it that a demonstrable initial act concerning a very serious prima facie crime, i.e. destroying documents to prevent their known use as evidence (i.e. the Heiner Inquiry documents and tapes), involving the entire 5 March 1990 Queensland Cabinet and others was not found by the various law-enforcement agencies for over two decades despite clear and compelling evidence presented to them by the whistleblower, Kevin Lindeberg, from as early as 1990?
Mrs Cunningham tabled the Bill and the Explanatory Notes as well as necessary supporting material in order for parliament (as well as the public) to fully understand and consider why she had decided to move her Private Member’s Bill.
Her Bill was based on the parliament’s binding legal obligation to act, as final bulwark in our system of government, when matters of potential judicial misbehaviour come to its attention by the establishment of an independent Tribunal headed by three interstate senior judges to investigate such allegations and report to parliament. If the allegations are proven on the balance of probabilities, it may lead to the removal of the judge/s following an address to parliament from the Bar.
The only thing necessary for the triumph of evil is for good men to say nothing (with apologies to Edmund Burke)
Former Adjunct Professor of Journalism, The University of Queensland, and former editor of The Weekend Independent and Independent Monthly
Thank goodness for Doug Ensbey. He said his piece about the DPP’s decision (via some QC) not to press charges against the Heiner document shredders. Good for you Doug.
But, meanwhile, a host of serving judges, former judges, members of the Bar Association, lawyers of all kinds, and academics, past and present politicians and others scrap fiercely over the appointment of Carmody as CJ, yet not one as far as I can tell, not one, has said a single word about the outrageous attack on our rule of law that the Heiner shredders perpetrated and got away with, nor a single word against the cover-up, the lies and deceit entered into by a battalion of lawyers, public servants and politicians that has led us to the DPP’s decision.
They all scurry off to their burrows and fail to say a single word about what happened to Doug Ensbey that did not happen to the politicians and their mates who all got off because they had the power to deal with people like Doug and to look the other way (and look after themselves) when politicians committed offences.
What an appalling joke they all are.
What a dreadful state of affairs we are in.
The Brisbane Times
Man 'jailed' for destroying evidence staggered by Heiner no trial ruling
Date July 2, 2014
A man who in 2004 received a six-month suspended jail term for destroying legal evidence “is staggered” the Queensland government has ruled it is not in the public interest to send former ministers who allegedly destroyed Heiner Inquiry evidence to trial.
Now Pastor Doug Ensbey wants privileges removed from the Goss Government ministers.
He said they should be fined $100,000 and the money given to whistleblower Kevin Lindeberg, who first questioned why the Heiner documents were shredded.
“If I was Premier – and I could do it – I would fine each of them $100,000 and I would put the money into a fund to pay [whistleblower] Kevin Lindeberg,” he said on Wednesday.
Queensland’s new chief justice Tim Carmody last year ruled there was sufficient evidence to put Goss Government ministers on trial for shredding evidence gathered by retired magistrate Noel Heiner during an inquiry into a youth centre in 1989.
He asked the Office of the Department of Public Proesecutions to rule if sending the former politicians to trial was in the public interest.
On Wednesday afternoon Attorney-General Jarrod Bleijie announced it was now unlikely the ministers could be convicted.
The evidence was shredded in March 1990 – after the new Labor government came to power - on the advice of the Goss cabinet.
An Injudicious Revolt
June 27, 2014 - 12.00AM
LAST Friday Paul de Jersey was clearly gambling that his standing within the legal profession would put an end to the revolt against his replacement as Chief Justice of Queensland. He was wrong.
In parts of the legal profession the antipathy towards incoming chief justice Tim Carmody has become even more forthright in the days since de Jersey’s call for peace.
The affair has divided judges and lawyers. Some passionately believe they are duty-bound to step up their campaign to dislodge Carmody because, in their view, he is unfit for office.
Those on the other side of this argument might not necessarily describe themselves as Carmody’s supporters, but they believe just as strongly that it is not up to judges and lawyers to overturn an appointment to the judiciary by the executive branch of government.
This is more than a spat between lawyers. Unless resolved, it means Queensland is fast approaching a turning point that could have adverse consequences for state institutions and, possibly, the separation of powers.
Brisbane lawyer Michael Bosscher facing disciplinary proceedings
- KAY DIBBEN
- THE COURIER-MAIL
- JUNE 25, 2014 9:27AM
PROMINENT Brisbane criminal lawyer Michael Bosscher is facing disciplinary proceedings for tendering an inquiry document containing untrue “scurrilous allegations’’ against a judge.
Mr Bosscher failed to have the disciplinary proceedings brought against him kept out of the public eye, after his application for a non-publication order was rejected.
The Legal Services Commission has applied to Queensland Civil and Administration Tribunal for Mr Bosscher to be disciplined for professional misconduct or unsatisfactory professional conduct.
Mr Bosscher has denied the allegations against him, saying in tribunal submissions he did not endorse any allegation or assert the truthfulness of any allegation in the document.
It concerns the document “The Rofe QC Audit of the Heiner affair’’, which he tendered to the Child Protection Commission of Inquiry, conducted by Chief Magistrate Tim Carmody.
The tendered document included an allegation of corruption against Court of Appeal Justice Cate Holmes, when she was a barrister assisting the Forde Commission of Inquiry, the tribunal heard.
The Brisbane Times
CMC can't probe Heiner affair delays
Date June 2, 2014 - 8:46AM
In his July 2013 findings Commissioner Tim Carmody found the inquiry documents, legally requested by Ipswich solicitor Ian Berry in 1989 and 1990, were illegally shredded on March 5, 1990.
Whistleblower Kevin Lindeberg subsequently lodged a request in January for a full investigation into why an inquiry had taken 23 years to find that cabinet shredded the documents when he first asked the Criminal Justice Commission to investigate the claim in 1990.
On May 15 this year, Crime and Misconduct Commissions acting chair Ken Levy wrote back to Mr Lindeberg to explain the CMC could not investigate because it may not be seen as independent.
“The Commission is of the view that, as the matter has been investigated by the former Criminal Justice Commission and reviewed by the Crime and Misconduct Commission, it may not be perceived as independent to undertake the review sought by you,” Dr Levy writes.
Dr Levy has now returned Mr Lindeberg’s request for a full investigation into why cabinet originally shredded the inquiry documents to Attorney-General, Jarrod Bleijie.
2014 Supreme Court rejects appeal against Commissioner Carmody’s Findings
On 4 April 2014 Supreme Court rejects appeal against Commissioner Carmody’s Findings
Justice Glenn Martin rejects Dean Wells appeal.
On 1 July 2013 Commissioner Tim Carmody SC found that the shredding of the Heiner Inquiry documents and tapes represented a prima facie breach of the section 129 of the Criminal Code against all the surviving members of the 5 March 1990 Goss Cabinet.
This was hardly a surprise to anyone with knowledge of this scandal. For years, some of this nation’s most eminent jurists have long publicly advised of this prima facie breach but the respective Goss/Beattie and Bligh regimes, CJC/CMC, police and DPP turned a blind eye to the glaringly obvious.
The serious prima facie crime Commissioner Carmody found was the same offence which whistleblower Kevin Lindeberg took to the CJC in 1990 and to the police in 1994. Back in 1990, the offence attracted a 3-year jail term; now in 2014, it attracts a 7-year jail term. By any measure, the crime of destroying evidence, if proven, is a serious one.
The two decades of alleged cover-up still remain unaddressed.
On 19 July 2013, Attorney-General Jarrod Bleijie referred the finding to the Queensland DPP to decide whether or not it was in the public interest for those surviving Cabinet Ministers to stand trial. In exercising his legal right, former Goss Attorney-General, Dean Wells, lodged a Supreme Court appeal on 29 July 2013 seeking to have the finding rendered null and void on various grounds, including a charge of apprehended bias against Commissioner Carmody
WHISTLEBLOWER KEVIN LINDEBERG’S 8 AUGUST 2013 COMMENTARY RE POST-CARMODY INQUIRY’S 1 JULY 2013 FINDING OF PRIMA FACIE BREACH OF SECTION 129 OF THE CRIMINAL CODE RE SHREDDING OF THE HEINER INQUIRY DOCUMENTS AND TAPES
Whistleblower Kevin Lindeberg – Former public sector trade union organiser
Q: ARE YOU SAYING THAT COMMISSIONER CARMODY’S NARROW DEFINITION OF ‘GOVERNMENT’ EVENTUALLY CAUGHT UP WITH HIM IN TERMS OF HIS FINDING OF A PRIMA FACIE CRIME BY THE LAW NOT BEING ABLE TO BE FULLY APPLIED?
KL: That’s correct. He said at the Recusal Hearing that if he defined the term “government” to mean “whole of government”, that is, departments and statutory authorities, then he would have to stand aside because it would logically mean that he’d have to investigate himself when he was the Queensland Crime Commissioner in 2001 when I saw him about the Harding Incident. He accepted that the law does not permit a party to an allegation to investigate himself.
In other words, after setting the parameters, he couldn’t apply the full scope of section 7 to the prima face shredding crime without breaching his own narrow definition of “government” to just mean “the political executive” because once the floodgates opened, it flooded everywhere and everything.
The Rofe QC Audit, to all intents and purposes, is the systemic cover-up flooding roadmap.
6 MAY 2013 - A DAY TO REMEMBER
Commissioner Tim Carmody
Some days are just like any other but some may be pivotal in the lives of individuals, for particular issues or nations because of what transpires. This can be judged either instantaneously, prospectively or retrospectively.
On 6 May 2013, in Court 17 of the Brisbane Magistrates Court Building, never before heard arguments as to whether an entire Cabinet may be in serious breach of the Criminal Code were live-streamed to the world on the internet. Specifically, they addressed the extraordinary legal question as to whether the 5 March 1990 order by the Queensland Cabinet to destroy the Heiner Inquiry documents and tapes to, inter alia, reduce the risk of legal action may have been illegal.
Despite it being nearly a quarter of a century since this shredding order, its legal consequences remain alive because no statute of limitations applies.
Presiding over the arguments was Commissioner Tim Carmody SC, head of the Child Protection Commission of Inquiry.
2012 SPECIAL COMMENTARY BY WHISTLEBLOWER KEVIN LINDEBERG
Whistleblower Kevin Lindeberg
Over a long period this webpage has independently drawn together all material available on the public record which goes to making up what is now commonly known across Australia and around the world as “the Heiner Affair.” The whistleblower, Kevin Lindeberg, is not responsible for its content although it contains most of what he has written about his public interest disclosures. He has never directly made a comment on this webpage.
However, due to recent dramatic events, he was approached with a series of relevant questions, and his response is
MOVING TOWARDS THE ENDGAME
Witness confirms pack rape of girl to Heiner Inquiry
John Oxley Youth Detention Centre. Picture: Philip Norrish
Today at the Carmody Inquiry, the Rubicon on the Heiner Affair was irretrievable crossed.
A highly credible witness under oath, Mrs Irene Parfitt, former Youth Worker at the John Oxley Youth Detention Centre, confirmed the contents of her police statement that she told Mr Heiner about the pack rape of Annette Harding when she gave evidence to him in Brisbane Children's Court at North Quay.
She was, in effect, a whistleblower. She would not tolerate silence any longer over a burning issue at the Centre for many staff, and she believed the Heiner Inquiry was the place to make her public interest disclosure. The assault was a matter which greatly disturbed her. Notwithstanding some time difficulties expected after the passage of close to 23 years, she clearly recalled telling Mr Heiner about the sexual assault of Ms Harding, a 14-year-old indigenous child while in the care of the State.
Should Commissioner Carmody Have Recused Himself from the QCPCI?
Alleged Prima Facie Criminal Count 57 of the Rofe Audit.
Commissioner Tim Carmody
Section 87 of the Criminal Code - Official Corruption in regard to the conduct of certain officials of the Queensland Crime Commission in respect of their handling of the allegations by one Kevin Lindeberg and related matters at certain times-
That on divers dates between the thirteenth day of December 2001 and the thirty first day of December 2001, at Brisbane in the state of Queensland, one Timothy Carmody, to the extent of his involvement, being a holder of office in the Queensland Crime Commission, pursuant to the Crime Commission Act 1997, at material times, did corruptly confer an advantage on another in respect the handling of allegations by one Kevin Lindeberg by failing to act honestly, impartially and in the public interest.