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On Trial… A sailors Comment on the system..... The Manzari appeal hearing Australian Customs versus American Sailors, from TCP # 28 page 7
by Bob Norson
Had a couple words with the Manzari Team of Peter Russo and Steven Keim prior to getting started, all is casual and friendly and the court house staff are remarkably helpful. But once the players assume positions I can't help but think of Alice in Wonderland, “off with their heads!”It's a hierarchy of wigs. Customs has two wigs, a barrister who never says a thing and a QC that takes the podium. There is also a solicitor (I assume) taking copious notes and diving through text to hand over to the QC by way of the barrister. The QC earlier approaches me to sus out who I am and what I'm doing here, politely of course. He has that kind of soft spoken private school persona that would be a type cast of a TV court drama. When he speaks to the court his bushy right eye brow does a dance on his angular face, up and down in a large and distracting twitch.
The Manzari team has Peter Russo doing the note taking and paper shuffling with barrister Steve Keim in the robe and wig. He speaks in a much more casual tone, “can I just say..”. No mistaking the expertise behind the conversation, this man loves the law, but with less pretence. Peter can speak with care if need be (seen on TV) but in person is a jolly sort. Well fed, big smile and flash jewellery. He is a sapphire and diamond guy. The man likes and knows his “bling”. That’s OK, so do I.
The judge is another fugitive of the type cast TV court drama with a little comedy on the side. Maybe it's an “old school” thing but his rubber face contorts into bulging cheeks and pursed lips as he contemplates the material and comments on statements from the barristers. We all try to interpret the face play but I suspect it is meant to be inscrutable. His wig is different from the barristers. It looks like the surface of a brain instead of the curls.
With everyone in place I do some mental addition to tally what a proceeding like this can cost. Customs apparently has little regard for cost. It's not like it's their money. They will hire whoever in the country they think is best suited to the particular court. I am informed from Jim Manzari that he attempted to move the case from Bundaberg to Brisbane to save money for everyone, but Customs objected and blocked the effort. Why? Add transport time for the legal teams to the costs.
The Manzari's have now hired a very good team. These are the boys who defended the good Doctor Haneef who was erroneously charged with terrorism a few weeks ago. The fact that a person defending themselves in a criminal case can be made to pay for the prosecutions expenses if not successful seems bizarre to me. The risk is not distributed fairly. Cost means nothing to the government and everything to someone like a cruising sailor. This was an important factor that caused other sailors to cop the guilty plea from Customs charges. My guess is about $30K for this day in court and maybe more.Peter Russo had explained earlier that the appeal had been abandon in favour of an attempt to quash the conviction. The difference being about the money and the Manzari's concern for their good name. If successful on this tack, they would walk away bearing their expense with no hope of recovering costs from Customs. The problem as it was explained to me is that an appeal can't be heard on an issue of error in law, only on error of fact. Actions by previous council limit the options now available. Barrister Keim argues that the INS (infringement notice scheme that for the shipping industry replaced the criminal convictions and large fines that have been applied to yachties) should have been applied to the Manzari's and that customs have now relaxed their enforcement of the rules to the point that the Manzari's wouldn't have been charged in the current regime. These were all points made in past editions of The Coastal Passage and in fact TCP was referred to on several occasions from both parties. Keim points out that the previous court imposed sentence on the Manzari's based on the prosecutions assertions that this was a “very serious matter” but now this so-called serious matter is mitigated by Customs to the point that it allows a phone call from a friend as sufficient notice and don't worry about the 10 day issue at all. The ACS represented facts as a “very serious matter” that in fact could have been handled as a traffic ticket. All this indicating that the judge made an error because… “information was not reasonably available to the magistrate”. He further states precedent “giving the court the maximum amount of discretion to insure justice is done” in the introduction of new information at this kind of hearing. The matter of intention is discussed in regards to the charge of failing to supply a “crew report”. A log from the local VMR indicating the Manzari's had contacted them as soon as VMR were available in the morning they arrived was discussed. According to the recent changes to ACS policy and the document the Manzari's received from the Australian government office in Noumea prior to sailing, contacting the VMR was an acceptable kind of notice. This argument gets interesting enough the bailiff puts down his newspaper to have a listen. Also discussed was the damage caused to the Manzaris by the record of conviction when entering other countries.
Michael White, the government QC replies that all of this is inadmissible and irrelevant. He brings up the Goedhart case and a letter Goedhart received from the minister saying that he didn't have a criminal conviction. [This letter surprised Bram Goedhart when he received it. He told me he was assured in court from his solicitor that as he plead guilty in a criminal court, he had a criminal conviction] Keim attempted to use the letter to demonstrate that the charges weren't as serious as ACS represented to the court and White uses it to demonstrate that the Manzari's haven't been damaged in their international reputation by the conviction. White states that as the Manzari's were represented at the trial the judge should have had all the information required to make the correct decision, it wasn't after all, the responsibility of ACS prosecution to be accurate.
White argues that the Manzari's set sail with no intent to provide notice of 48 hours or 96 hours. This is disputed by Keim and according to the Manzari's statement in TCP, Jim Manzari did attempt contact at 48 hours but was not within radio range. This comes down to the argument of conduct “knowing”.
A surprising point is when White brought up the other sailors convictions, pointing out that they pleaded guilty (“more or less”) thus inferring guilt on the Manzari's. I was surprised this kind of reference was allowed and would liked to have volunteered the information that the reason some had pleaded guilty was in fear of being sucked up into the maw of a system that has caused the Manzari's so much hardship. These were all foreign boats and crews with no knowledge of the court system and in the case of the Goedharts, limited use of English. This seemed to me to be the very best example of what should be “inadmissible and irrelevant”, but I’m just a sailor
And this is where we end. The day was gone and the judge deferred to a later date to announce his decision. We give the Manzari team a ride to the airport; making jokes along the way about the great enjoyment the team had in exposing the Haneef affidavit to the press that so embarrassed the government and my enjoyment in the result. They fought hard and well today but I am worried. My sense of this is that this court may have favoured the government. I hope I'm wrong. Watch the web site for the decision.
Update of 01/02/08, The court has found against the American couple. Click here to view the judgment. This is a jpg about 550kb