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.

Trouble and Lawsuits Down South

Things are getting ugly in Wollongong.


Politics down south of Sydney has been a pretty rough trade of late.  Between the Wollongong Council ICAC investigation and the resignation and outing of David Campbell (then member for Kiera) it's been rough sailing for Labor in those parts of late.


Going into the election, Keira, Shellharbour and Wollongong were all "safe" Labor seats.  I say "safe" because very few seats were actually safe given the swings that some people were expecting.


Not only was Labor on the nose, but many people thought that David Campbell debacle would hurt Labor, even though some sympathised with him after the way Channel 7 handled his outing.


In the event, Labor held all 3 seats, but with drastically reduced margins - in Shellharbour a margin of 21.6% was reduced to 8.6%, in Keira, a margin of 22% was reduced to 3.9%, and in Wollongong Noreen Hay held on by the skin of her teeth, her 25.3% margin having been decimated to lie at 1%.


It was so close in Wollongong that her independant opponent, Gordon Bradbery, in fact claimed victory on the night, despite sitting on a margin of 0.4%.


It took some five days before Hay called the media to claim victory by a mere 650 or so votes.


Even on the day of the Election however, there were rumblings of discontent.


This article explains that the Liberals had been advocating a "vote one" strategy - meaning that they were asking voters to only number the box next to the Liberal candidates name.


The allegation (made initially by the Liberal party, and apparently the subject of a complaint to the NSW Electoral Commission) was that Labor had stolen some of those cards and hand amended them to ask voters to place a "2" next to Noreen Hay's name.

Photo from The Illawara Mercury

The above photo is one of the allegedly doctored How To Vote Cards.  Hay denied any knowledge of the incident, despite the fact that the doctored cards were said to have been found hidden amongst Labor's campaign material.


The campaign has already gotten rough - thanks to the very excellent ElectionLeaflets.org.au we can see this leaflet that Gordon's supporters delivered during the campaign. 

Photo from ElectionLeaflets.org.au

Unfortunately no one has uploaded the original Labor leaflet, but I think we get the idea.


The Daily Telegraph reported this week that Gordon Bradbery had filed a complaint with the Court of Disputed Returns. 


The NSW Parliament website helpfully provides a copy of the document here. 


The petition makes the following complaints:


a) At least 800 fraudulent how to vote cards were found at a polling  booth at Farmborough  Road in the seat of Wollongong on the day of the election. These cards which were repeatedly handed out to voters and falsely directed preferences to Ms Hay.


b) A high incidence of double voting occurred in the election in the seat of Wollongong, particularly as a result of voters in nursing homes lodging postal votes and voting a second time on polling day. The Second Respondent failed to accurately identify and take into account double voting prior to the declaration of the poll by the First Respondent on 5th April 2011.


c) A number of posters erected on and before polling day in the seat of Wollongong, some of which displayed Labor party authorisation, instructed voters to "Just   Vote  1".  The potential for voters to misinterpret these posters as an official directive from electoral authorities was  such that the result of the election by may have been affected. 


Time will tell how many of these allegations he will actually be able to prove. The way b) is phrased it it sounds like it is simply a criticism of the NSW Electoral Commission procedure.


The first allegation really is the big ticket item.  If true, it shows a shocking course of conduct by at least one person in the Labor party - and the question will then be "How high does it go?"


If there is a whistle-blower willing to say that Hay knew about this - well, let's just say that it should be excellent viewing.

A Hans On Kind of Girl

When Pauline Hanson first nominated for the NSW Upper House, I think everyone expected drama, but surely nothing like this.


First we had the drama as the final seat went down to the wire, and the sniping between Labor and the Greens about whose fault it would be if she was elected. 


Then we had the chance to view the distribution of preferences and see just how close Hanson got to a seat.  


But even though Hanson missed out in the end (at least according to the NSW Electoral Commission) she has refused to lie down.


As far back as the day that the final count was announced (April 12), Hanson was crying foul. 


Hanson complained then that the the system leans towards the major parties because they get to have their names above the line.


She also pointed to the 230 000 informal votes and 200 000 blank votes and suggested that there is "something wrong with the system".


Two days later on April 14 Hanson was demanding a recount.  There is an extremely complex system whereby preferences are distributed that I don't intend to address, but suffice to say Hanson felt that she had been cheated by it.


More recently though, a more serious complaint has emerged.


There appear to be 2 distinct branches of complaint.


First of all, as detailed in this article, at least one scrutineer discovered Hanson votes sorted with blank votes. 


We're given no further details in that story, but this would seem to be a fairly weak complaint - no doubt every party lost out on some votes that were incorrectly counted or distributed. This problem will persist until the day we finally do away with paper voting entirely.


The more interesting complaint is explained here.


In essence, she is complaining that dodgy electoral staff have "cheated" her out of a seat.


According to the Tele, her solicitor said that "an email had been sent to Ms Hanson from someone within the NSW Electoral Commission proving her claims were true."


The Herald goes one further and appears to quote said email, which reads as follows: "We know some of her people and the media are looking at the blank ballots and are trying to get them all rechecked because one of her scrutineers was meant to of (sic) found some of her votes in amongst the blanks (I have heard through the chain that there could be as many as 1200 across the state that are in with the blanks as there were a few dodgy electoral staff on, but don't offer that)."


It goes without saying that if the claim is true then it would a scandal of enormous proportions.


The important questions are:
- Who wrote this email?
- What level of knowledge did the writer have?
- What evidence is there of "dodgy electoral staff"?
- Is dodgy meant to suggest incompetent, or corrupt?
- What basis is there for the claim of 1200 votes?


At this stage, the whole thing looks a little groundless.  Hopefully as things progress is made we will find out more about Hanson's claims.