Wednesday, June 15, 2011

None so Blind...

There are none so blind as those that will not see.

Pauline Hanson's legal challenge for a seat on the Legislative Council crashed and burned in dramatic fashion in the NSW Supreme Court late yesterday afternoon.

Her star witness was revealed to be a not only a liar, but a vicious prankster who deceived everyone for reasons that we may never know.

Sean Castle.  Photo from SMH
Hanson withdrew her case after Sean Castle revealed that he had sent the email purporting to be from "Michael Rattner". He further revealed that he did not know anyone who worked at the Electoral Commission and that the emails suggesting that the count was incorrect were utter fabrications.

One issue I wanted to discuss first - contrary to just about every article I have read and the chat on twitter yesterday (with the exception of an excellent analysis by Matthew Knott over at Crikey), I don't think that Castle received immunity from prosecution in return for his evidence.

No one in that courtroom had the power to grant that immunity.

Rather, the "immunity" spoken about related to protection from his evidence being used against him at a later date, as per section 128 of the Evidence Act.

There is a general protection before Australian courts against giving evidence where that evidence might be used against you at a later date.

On that basis, if there is a possibility of the answer you give to a question being used against you at a later date, you can refuse to answer a question.

It's similar to the way that, if you are accused of a crime, you have no obligation to give evidence, and the crown cannot force you to get on the stand.

Judging from the live tweeting that @tobiasziegler was kind enough to provide, we can see that Castle first refused to answer questions:
and then was granted a "certificate" meaning that the evidence could not be used against him at a later date.

He can still be prosecuted for a offence in relation to the emails - it just means that his evidence before the court yesterday cannot be used against him.

The hard part, having said that, is to find an appropriate offence. It seems unlikely that he has committed fraud, as there was no obvious "benefit" received by him or anyone else.

He hasn't committed perjury - in fact, when finally under oath, he appears to have told the truth for the first time.

I haven't looked into it closely enough, but he may have committed some sort of forgery type offence. 

I don't propose to recreate the wheel by listing all the reasons that Hanson perhaps should have cottoned onto what was going on before everything collapsed so spectacularly - Matthew Knott lists 5 very good reasons in his article.

I do, however, want to pick up on the one oddity that was plainly obvious without the benefit of hindsight.

The email that we now know to be fake says "I have heard through the chain that there could be as many as 1200 that are in with the blanks."

This is information that Hanson had from day one - as you can see from the email, it was part of the original document that Rattner/Castle sent to Hanson.

Part of the email sent to Hanson's team.  From Crikey

There are a multitude of reasons why the issue should have died right then and there.

Firstly, the person who (according to the document) wrote the email said that he has heard it "through the chain" which to me means "unsubstantiated gossip".

Moreover, that number of votes would have required some sort of conspiracy - it is difficult to imagine how anything less than a team of saboteurs could have achieved something of that scale.

Who are they?  What are they trying to achieve? How could they manage such a deception?  

How did Rattner/Castle get hold of this email? Surely the people having this discussion would have been sensitive to the consequences if it was to be leaked?

Then there was the fact that neither Hanson or anyone in her legal team had ever actually met with this whistleblower.  Surely the fact that he refused to sit down with them and swear and affidavit should have been a clue that things were not as they seemed.

But the biggest issue, the one that should have stopped her before she launched any legal action, is this - she lost by more than 1200 votes.

The email suggests that "as many as 1200 votes" went missing.  As I wrote about here, on the last count Pauline was 1306 behind Sarah Johnson and was eliminated.

Even if the email was true, even if the unsubstantiated allegation was true, even if Rattner was a real person, she was still over 100 votes off the pace.

I have no idea what advice her lawyers did or didn't give her - I don't know them personally.  But surely we have to assume they explained to her very clearly that she was on shaky ground and that there didn't appear to be a huge amount to work with.

I wrote about the unanswered questions when the perceived irregularity first came to light, and asked a bunch of questions, most of which Hanson's team were clearly not able to answer until yesterday.

But, as I think we can all attest to, sometimes there is just no telling some people.

Clearly Hanson was distraught about her loss, which I think we can all identify with on some level. However, there does also have to be a time when we accept that things are the way they are and move on gracefully.

The very first day the email came it, her team should have gotten Castle/Rattner to front up with evidence, or simply ignored him.  It was Hanson and her team that fuelled this story, and it is Hanson who is left looking like a fool.

She launched a massive legal action, knowing that if it all blew up she would leave herself horribly exposed, on the basis of an email sent to her by someone she had never met.

Sometimes, however, common sense has no chance against the genuine belief that you have been cheated.  Her lawyers may very well have told her that the case was doomed from the very start.

Heck, they may have pleaded with her not to proceed because they were able to see this coming.

They no doubt warned her about the potential for a 6 figure costs order against her from the defendants.

But, sometimes, there are none so blind as those that will not see.  And they may just have been her undoing.

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