Van Tongeren , Van Blitterswyk v The Queen

[1997] HCATrans 305

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  Nos P15 and P16 of 1996

B e t w e e n -

(JACK) PETER JOSEPH VAN TONGEREN

Applicant

and

THE QUEEN

Respondent

Office of the Registry
  Perth  No P17 of 1996

B e t w e e n -

JOHN ANTHONY VAN BLITTERSWYK

Applicant

and

THE QUEEN

Respondent

Applications for special leave to appeal

TOOHEY J
McHUGH J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON FRIDAY, 24 OCTOBER 1997, AT 9.50 AM

Copyright in the High Court of Australia

______________________

TOOHEY J:   Is Mr Van Blitterswyk here?

MR J.A VAN BLITTERSWYK:   Yes, I am here, your Honour.

TOOHEY J:   You come forward, please, Mr Van Blitterswyk.  Just sit at the bar table, thanks.  Mr Van Tongeren, would you come forward, please, and sit at the bar table.  Mr Van Tongeren, this is your application for special leave to appeal against conviction and against sentence, is it?

MR J.P. VAN TONGEREN:   Yes, your Honour, it is.

TOOHEY J:   Yes, sit down for a moment, please.  Mr Van Blitterswyk, you have an application for special leave to appeal against sentence, do you not?

MR VAN BLITTERSWYK:   That is right; yes, your Honour

TOOHEY J:   You have the one application book.  Would it be convenient for us to hear you, Mr Van Tongeren first in respect of both your applications and then Mr Van Blitterswyk in respect of his application ,before deciding what course we will follow thereafter?

MR VAN TONGEREN:   Yes, I think that would be best, your Honour.

TOOHEY J:   Mr Van Tongeren, can you get a microphone - perhaps it is better for you to come across here.  I was asking you both as to the convenience,

from your point of view, of the Court hearing both of you first and then deciding what course it would adopt thereafter in respect of the Crown’s submissions.

MR VAN TONGEREN:   Yes, sir.  You would have a letter that I put at the front of that list of references and what have you, your Honour.

TOOHEY J:   Yes.

MR VAN TONGEREN:   In that, I asked about the 20 minutes.  There is three cases here; there is two of us.  Is that 20 minutes, 20 minutes in total for the whole lot?

TOOHEY J:   No, it is not.  Each of you has your 20 minutes in respect of your own application.

MR VAN TONGEREN:   Okay.  Thank you for that, your Honour.  As you have probably gathered, I am the one that has actually put all the appeal together, and if I could, I would like to extend my 20 minutes.  John is prepared to let me basically - because our case is on the sentence - - -

TOOHEY J:   I do not want you to go into detail at the moment, but we will see how we go with the timing of it.  I understand what you are saying.

MR VAN TONGEREN:   Yes, they are the same.

TOOHEY J:   Between you would occupy 40 minutes, but how you spend that time between you is a matter for you.

MR VAN TONGEREN:   That will do fine, your Honour.  Okay.

TOOHEY J:   Mr McKechnie, you appear for the Crown, do you?

MR J.R. McKECHNIE, QC:   If your Honour please, with my learned friend MRS V.R. CAMPBELL, I appear for the Crown.  (instructed by the Director of Public Prosecutions (Western Australia))

TOOHEY J:   Does the suggested procedure cause any problems from the Crown’s point of view?

MR McKECHNIE:   No, your Honour.

TOOHEY J:   Mr Van Tongeren, let us hear from you, please.

MR VAN TONGEREN:   You want to hear from me now, your Honour?

TOOHEY J:   Yes, we do.  Just make sure you keep in front of the microphone, Mr Van Tongeren.

MR VAN TONGEREN:   Yes, your Honour.  I would like to hand you a copy - some photos that were not actually - these are another view of the photos you already have in the application book.  This is from the back view, because ‑ ‑ ‑

TOOHEY J:   Are you saying these were exhibits at the trial or on appeal?  Because we will not be taking material that was not before the trial judge or before the Court of Criminal Appeal.

MR VAN TONGEREN:   It is a point I am going to make, your Honour, because there is a case there of Sheehy v The Queen that actually happened last year.  I will deal with that in a minute.  The point about this is, when the evidence presented there was looked at by experts from another perspective, then it was shown that the Crown were lying and that he was telling the truth.  This is another view of the tree house from the back, not the front, that shows that it is in fact a tree house and not a look out.

TOOHEY J:   You have not quite answered my question.  Those photographs, were they exhibits before either the trial judge or on appeal to the Court of Criminal Appeal?

MR VAN TONGEREN:   That particular one was not, your Honour.

TOOHEY J:   Then I am afraid we cannot take that.  But just develop your submissions.

MR VAN TONGEREN:   Okay, I will. 

KIRBY J:   You can use the podium.  It might be easier if you put your papers on that, and then you will speak into the microphone, you see.

MR VAN TONGEREN:   Yes.  My apologies, your Honour; I am not used to this sort of set up.

TOOHEY J:   That is all right.

MR VAN TONGEREN:   What I want to first say, the first thing that we are not legally qualified people.  There are probably going to be things that I say and do that are not - just that one, for starters - that are not what you would normally expect from someone, a competent lawyer who has been doing this all his life.  But - - -

TOOHEY J:   We understand that.  You just make his submissions.

MR VAN TONGEREN:   We have a case, and this is what I wish to present to your Honours.  Basically, in a nutshell, we have been a victim of a miscarriage of justice, and it has taken us years and years to get this far.  What I want to try and explain and hammer is a point, you have the spirit of the law, you have the letter of the law and when the letter of the law gets stretched too far or abused deliberately and the spirit of the law is contravened, then what is actually done, even though technically it may be legal, is actually illegal.  I want to go on to this.

There is a chap called Cicero and he made an interesting comment about the nature of the law:

True law is right reason in agreement with nature.  It is of universal application, unchanging, everlasting.  We cannot be freed from it by Senate or people.  The law is not one thing at Rome and another at Athens, but it is eternal and immutable and valid for all nations and for all times.  God is the author of it, its promulgator and its enforcing judge.  Whoever is disobedient to it is abandoning his true self and denying his own nature.

I put that in to sort of put this in perspective of what I am trying to say.  Facts are facts; in the end we cannot be convicted and sentenced and treated the way we are treated on the basis of lies.  There was a chap called Galileo, Galileo Galilea ‑ ‑ ‑

TOOHEY J:   Could I just suggest this to you, Mr Van Tongeren.  You have limited time and you might make better use of that time if you were to focus on the particular matters which you complain of in your application for special leave to appeal, remembering also that you are seeking an extension of time after a very, very long delay.

MR VAN TONGEREN:   I am going to get on to that too, your Honour.  Just on Galileo.  The court at the time said he lied and they were telling the truth, but the court itself showed that the court was wrong and it brought a lot of disrespect on the legal system at the time for supporting a lie as opposed to the truth.  That is what I want to say about Galileo.  In our case, eventually - and this is what I want to bring on to - the lies that were told and upheld at the trial and appeal are commonly known:  they are on the Internet; they have been exposed; millions of people already know.  That is part of the reason why I wanted to bring that photo in.  Okay, I cannot.

Two plus two does not equal five, and no matter how respectable sounding the people the say it is, that is not the fact.  The fact is, two plus two equals four.  The nature of that Bindoon property is a crucial factor that was used as an excuse to deny us bail and put us in the predicament where we had no lawyers, denied bail and faced a trial as idigents totally unprepared for a trial.  That is why I am going to get on to the Dietrich case in a minute.  That exposure of the lies, on 25 August there was actually a seminar at the University of Sydney.  What you are hearing in this Court today, the exposure of the lies and the corruption involved, was actually exposed there, as well as on the Internet.  Might I add, the subject matter of what is being brought before you, and is in the application books there, is also the subject of an anti-commission inquiry now.  I will just put that on record.

I will deal with that paramilitary terrorism lie first, because as your Honours know, when sentences are made the intent - and if I can put it, the environment, the nature of how the offences were perceived to have been done is a relevant factor in how savage the sentences are.  In our case, the story was that we were paramilitary terrorists.  You will see that time and time again in the trial, the sentencing and when the appeals judge upheld the sentences and so on.  We were accused of being terrorists and we were accused of running a paramilitary training camp at Bindoon. 

Ever since that accusation was made against us we have tried, on my occasions, for the last seven years, to just simply get qualified people, the court or military people or someone like that, to go up and have a look and see for themselves there is nothing there of a paramilitary nature.  When that paramilitary excuse is taken out of the equation, then the terrorism excuse that follows later would never stick, because again - and I will on to this in a minute - but on the application book, pages 212 to 230, we have gone into the correct definition of what terrorism really is.

TOOHEY J:   That is not what you were convicted of.  You were convicted ‑ ‑ ‑

MR VAN TONGEREN:   No, but we were sentenced that way, your Honour, with due respect.

TOOHEY J:   Let us stay with the conviction for a moment.  You were convicted of 53 offences, were you not?  They were offences of conspiracy, stealing, wilful damage, assault occasioning bodily harm, arson, false pretences, wilfully causing an explosion. 

MR VAN TONGEREN:   Yes, that is what we were convicted of.  Actually, I had a spiel here; I do not know how to go about it.  All right.  You see, what I have got before me deals with both the - what I am trying to point out, and I am also trying to answer is the prosecution’s comments on their counter argument.  That is part of what I am trying to go through here.  Let me put on record, there is no paramilitary training camp there.  The photo that I was trying to show you before basically - and again on what a look out tower really is, it should be towering above the trees to look out over.  Mr Scott, when he opened up the prosecution’s case, actually stated that that look out tower could see all over the property.  You cannot even see the front gate.

I will put this on record.  I am prepared, anybody, your Honours, get a military man to go up there and have a look and I am so certain that you will find nothing there of a paramilitary nature, for the next 10 years I will donate one quarter of whatever wages I earn to the Salvation Army.  I put on record to say, I have got nothing to hide; I am telling your Honours the truth.  My ability to portray it according to the legal - the way it is done may well be off the mark, but what I am trying to say to you, there are facts relating to this and these facts have been turned into lies and we have been sentenced on the lies.  There is no paramilitary training camp; we are not terrorists.  We have not killed people.  We have not carried out armed violence against people.  When the convictions were made, when you take all that atmosphere out it, then those sentences are way over the top.

TOOHEY J:   Have you moved from the question of conviction to the question of sentence?

MR VAN TONGEREN:   Yes, I know.  All right.  Take the conspiracy.  It was actually the one that I was going to deal with last, but I will have to deal with it first.  There is a moral historical legal reason that can be brought forward for all the offences we were convicted of.  I unfortunately cannot do it in the few minutes I have got available.

TOOHEY J:   We have your written material.  We have had that in accordance with the ordinary procedures.

MR VAN TONGEREN: Right. I want to point out something that was only touched on in the application book, in that all important conspiracy charge we were charged with and convicted of causing “detriment to Asians living in the State of Western Australia”. They did not say “Australian citizens” and this is where I am going to try, in a few minutes, to explain something. We were, at the time, we were the leadership of the Australian Nationalists movement. We were carrying out a campaign which was in accordance with the spirit and will of the Australian people who had brought in the Constitution in 1901.

One of the first Acts of the Australian Federal Parliament was to pass what was known as the Immigration Restriction Act 1901. That became the basis of the White Australia Policy, which was then the will of the people and still is the will of the people; there has never been a mandate to change that. When the Asians referred to in that charge are part of not just a few Asians but an invasion size immigration, which is causing detriment to our own Australian people, and after 20 years of lobbying, voting and all that, and it had no effect on it, this detrimental effect to our people, then some people, patriots, have the right to fight back.

TOOHEY J:   What does this constitute - - -

MR VAN TONGEREN:   This constitutes, your Honour, a defence - - -

TOOHEY J:   - - - a defence to the charges against you?

MR VAN TONGEREN:   Particularly the conspiracy charge.  When you see the way that they fitted all that together so that whatever other offences followed were then put in a more serious light, you see - - -

TOOHEY J:   One could understand that in the light of what you have just been saying, that they were treated in a serious light.

MR VAN TONGEREN:   You see, I have only got a few minutes.  I want to put that on record, that where does the law - right.  The spirit of the Australian people - all legality, all law is ultimately based on the consent of the people to be governed. 

KIRBY J:   Yes, but you are entitled to express your point of view, subject to the Racial Discrimination Act and other laws of that kind, but you are not entitled to exhibit violence against other people who are under the protection of the law of this country.  This is the problem, that you are charged with actual criminal offences and have been convicted of 53 of them.  You can hold your point of view.  You can have it in your mind.  You can express it to your friends, subject to the Racial Discrimination Act and other laws.  You can express it to other citizens.  But you cannot exhibit violence on other people under the protection of the law of Australia. 

MR VAN TONGEREN:   First of all, your Honour, on the word “violence”.  It was not violence, it was property only, with one very minor exception.  I want to put that on record.  We are not killers, we are not murderers, all that.  We did not maim, all that.  I just want to put that on record.  The word “violence” - and that again has been thrown against us.  We are not violent people, because one of the reasons why I wanted to stand before the Court rather than have it done in the absence of - John Van is down there.  You can check our background and so on.  We are not violent people.  We have not carried out violence.  That is the first thing.

You see, your Honour has put forward a point which would take me and witnesses which, if we had been out on bail, if we had lawyers, we could have got the Australian historians, we could have got the competent people to come in and say what has happened since 1966 when the White Australia Policy was quietly, without any mandate from the people, pushed aside.  What has happened in that 20 years of lobbying, voting, working, as your Honour said, within the existing legal system as it is written out, not the spirit, as it is written out, the spirit says something else, the written letter of the law says something else again.  Having said all this, I am well aware that I am probably condemning myself to another four years gaol, but there comes a time, your Honour, with all respect, there comes a time when you are on trial for what you are, what you believe in, what goes on after your death.

TOOHEY J:   Mr Van Tongeren, what you are not doing is taking us to any of your grounds of appeal, or proposed grounds of appeal, the basis of your application.  You have not addressed the particular offences of which you are convicted in an endeavour to show that in either a trial or in the treatment of those convictions by the Court of Criminal Appeal there was an error which would warrant a grant of special leave to appeal.

MR VAN TONGEREN:   All right.  I will just finish up on that conspiracy about Asians and the will of the people.  I will put on record, a nation has a right to exist.  If its legal system says you cannot, then there is a moral legal right for that people to say, “We’ve got to use some other method.”  I am going to leave that there for now. 

Back to your question, your Honour.  I am going to now then - all right, if I cannot get past that, the Dietrich Case.  Contrary to what was put forward, we did not qualify for the Dietrich.  I have shown you the caveat warrant that was put on my house; a similar one was put on John Van Blitterswyk’s property.  We were indigent, and John McKechnie’s office, the DPP, even went so far as to prevent us from getting rent money.  Later on, that was overturned.  That was back in 1993, I think.  We were indigent, we were facing trial unprepared, and the reason that we engaged in a hunger strike - - -

KIRBY J:   You say you were indigent but you did have a property, did you not?  You had your own real estate.

MR VAN TONGEREN:   Your Honour, we did not have access to it; there was a caveat on it.  We could not sell it for any money.  We were not able to touch that property until 1993.

KIRBY J:   Whose caveat was that?

MR VAN TONGEREN:   That is the - your Honours have got a copy there.  That is why I sent it in.

KIRBY J:   Just tell us.  You do not have to demonstrate, just tell me whose caveat was it.

MR VAN TONGEREN:   The Crown got a restraining order put on it, to be:

not disposed of or otherwise dealt with by any person until the discharge or expiry of this Restraining Order.

I sent in a copy of this to your Honours.

TOOHEY J:   Yes, that is with us.

MR VAN TONGEREN:   The point is, there was a similar one for the Bindoon property.  We did not have any money, we did not have any lawyers, and we were denied bail, consistently denied bail.  We tried to get bail on about 12 occasions, the last one being just the same day as the trial started.  We were indigent, and if any case was - - -

KIRBY J:   You did have counsel in the Court of Criminal Appeal.  You had counsel in the Court of Criminal Appeal.

MR VAN TONGEREN:   Only for myself, for the sentence only, and that is it; the rest, no.  John Van went in totally unrepresented.  And that was it, but no more.  But for the trial, we had nothing.

KIRBY J:   Did you ask the Crown to release the caveat so that you could expend the funds that were otherwise yours to secure counsel?  Was it not the fact that you preferred to present the case yourself at trial?

MR VAN TONGEREN:   Your Honour, in fairness, we did not ask, we did not know we could ask.  I will just go back a bit.  When we were first arrested we did, indeed, inherit lawyers from an earlier charge where John Van Blitterswyk was arrested six weeks earlier.  Those lawyers just faded away.  To cut a long story short, did not want to have anything to do with it.  Then we were stuck on our own; we could not get legal aid, and, bang, we were stuck on our own there.  It was from about the beginning of the first bail application onwards we were pretty well on our own and then we were totally on our own.  In fact, on the day the trial started a lawyer - I have got it in the application book - Paul Nicholls tried to get the trial stopped, but he could not get to see us; he was prevented from actually seeing us in the court the day that actual trial began.  I put that on record too.

You see, what I am trying to say too is that because of the fact that we were denied any chance of putting together - I mean, I was even denied a typewriter.  John and I were in different gaols; we could not talk to each other; we could not get together to put any defence together.  At every step of the way the legal authorities just hindered us, stopped us, to prevent getting any defence together.  You have a right, according to - - -

KIRBY J:   But if you do not ask the Crown to release the caveat so that you can be represented, is it not a fair inference that you wanted to represent yourself and to put your point of view, and put things on record, just as you did earlier today before this Court.

MR VAN TONGEREN:   When you said, “Did you ask the court to release it?” that is the first time I have been even told that I could do that. 

KIRBY J:   It is a matter of protecting your own interests.

MR VAN TONGEREN:   I think that decision was made on - - -

KIRBY J:   Anyway, you say the Crown put a caveat on your property, you had no other property, you were in gaol, you were out of contact with lawyers, you were not able to get anybody to represent you and you did not have the funds to be represented and, therefore, you did not get proper legal advice.

MR VAN TONGEREN:   Correct, your Honour.

KIRBY J:   You were sent to trial without a lawyer to represent you, although the charges against you were very serious and ended up with you having a 19 year sentence of imprisonment.

MR VAN TONGEREN:   Yes, your Honour, that is the case.  That is what I am trying - - -

KIRBY J:   Yes.  That is the essence of your Dietrich point.

MR VAN TONGEREN:   Yes, that is the Dietrich point, your Honour.  It is just that what was presented by the Crown says we did not qualify for the Dietrich situation; I am saying we did. That is the point I am making, your Honour.

TOOHEY J:   Mr Van Tongeren, just so you know where you stand, the 20 minutes allocated to your application have expired, but I understand that you, by arrangement with Mr Van Blitterswyk, will use some of the time allocated to his application to conclude what you are saying.  Is that right?

MR VAN TONGEREN:   Yes, your Honour, it will.

TOOHEY J:   Is that in order with you, Mr Van Blitterswyk?

MR VAN BLITTERSWYK:   Yes, that is fine.

TOOHEY J:   So that we now have some regard to when that time expires, is 10 minutes of that time sufficient for your purposes?

MR VAN TONGEREN:   It should be, your Honour, yes, your Honour.  I want to say something about - to be quite honest, I did not expect to be jumping and changing the way I am. 

KIRBY J:   You have got to be used to that in this Court.

MR VAN TONGEREN:   So it appears, your Honour.  This is first time I have been before this Court.

TOOHEY J:   You must remember that this application, like all other applications for special leave to appeal, requires the filing of written material on both sides - and that has been done, of course - and then the limited time that is made available to all applicants is so that you can develop particular aspects that you may want to focus attention on.

MR VAN TONGEREN:   Yes, your Honour.  The extension of time thing that you brought up too, your Honour, it is not our fault that the first lot of appeal papers, which we did send in within 21 days, just mysteriously disappeared in the certified mail.  I have got that - I have shown you the certified mail receipts and so on.  We did attempt to get this High Court appeal in well within time, a long time ago.  There are a whole series of other factors - I have got it in the application book - why we are only are now fronting the Court five - - -

TOOHEY J:   It does not quite explain the length of time.  I understand what you say about the original papers that you say were mislaid, but, what, there was a delay of some four years, was it, between - - -

MR VAN TONGEREN:   We waited for a year and a half until we got a lawyer for another - in fact, for the properties, 1993, and we explained to him what was going on, and as far as we were concerned there was a High Court appeal waiting to be heard.  Again, as a layman, we assumed that they would tell us when they were ready.  A year and a half later, what had transpired is that then he discovered they had gone.  Then I had to get on to the Ombudsman, and he took his time hunting it down and coming back with the answer, “Sorry, sir, they disappeared.” 

It was about that time that I was thrown in the Special Handling Unit ‑ again, this is a factor I have got to explain, that is cruel hell on earth.  You are in a steel and concrete cage just looking at nothing but the bars and the walls.  There is not much can be done from there.  I had to wait until the end of ‘94 before getting out.  Then we got - what had happened in the meantime is the High Court rules had changed.  What I had put in earlier was not actually okay for the next lot.  Then in 1995 I got it together and put it in.  You should have a copy - I have got a copy here - I actually went so far as - I have a letter from the High Court, 7 August 1995.  We tried in 1995 to put it in and he said it was not the right format.  So I put it together again, then it went in, in 1996.  That is what actually happened over those five years.  I will go on record there.

I will just finish.  There is the case of Sheehy v The Queen where when an expert had a look at the evidence presented the whole thing was overturned, because you get a totally different view of it.  Defence evidence was withheld from the jury - and this gets back again, your Honours, to what I am trying to say about, we were convicted but if we had have been prepared, it defence evidence that we wanted to present was presented, particularly looking at the property, particularly getting in people who could give the moral, legal justifications for our actions, the verdicts would well have been very different, and certainly the sentences would as well.  An extension of time thing too - - -

McHUGH J:   What do you mean by the “moral, legal justifications” for your actions?  What was the defence that you wanted your lawyers to put on your behalf?

MR VAN TONGEREN:   Thank you, your Honour.  This gets back to what I was trying to say before.  I had a few more points I was going to cover in that last 10 minutes, see.

McHUGH J:   You make your own points, it seems to me that your two most arguable points are the Dietrich point and the sentence point, and you really have not dealt with either point in any real detail.  So far as the Dietrich point is concerned, you should be attempting to persuade us that if you had had representation your counsel would have been able to bring out evidence which would be legally admissible or would have been able to cross-examine so that the jury’s verdict may have been different.  So far as the sentence matters are concerned, you should be comparing the facts of your case with the facts of other cases to show that your sentence is excessive by those standards.  We are controlled by rules, we are controlled by the evidence in the courts below and we have to operate within that framework.  You have got to address yourself within that framework.

MR VAN TONGEREN:   Okay.  Point taken, your Honour.

McHUGH J:   But you take your own course.  They are the matters that I am most interested in.

MR VAN TONGEREN:   I see your point, your Honour.  Right.  Let us get to the - we requested that the judge take the jury to the property and see it for themselves.  This was refused.  Because of that and the fact that this allegation of paramilitary terrorism was not ever challenged, then the sentences - and this I will quote the case I have quoted in the application, Haabjoern and Chester and Mahood.  In both those cases, I might add, they got less than us.  But when, again, if we had a lawyer, if we had have been prepared, we would have known in the case of Mahood that was not just a case of someone throwing a Molotov cocktail, it was in connection with grievous bodily harm.  I have enclosed the actual details in the application book.  That was a far more serious offence because it involved an act of someone trying to physically kill or maim someone in a crowded park.  We did nothing like that.

The other case, of Haabjoern and Chester, they got seven years with parole, and again, what they were convicted of was - I mean, good Lord, I think they use a whole case of power gel and blew that gantry sky high.  They kidnapped a guard, put a gun under his nose, and they had a timing device that was - it was infinitely far more serious than what we were convicted of. 

KIRBY J:   Mr Van Tongeren, I pick up Justice McHugh’s question to you.  Can it be suggested that if you had the caveat removed and had access to your funds or otherwise got a lawyer to represent you, that you would have insisted that that lawyer go along and conduct a trial, putting things on the record and making political speeches, because lawyers cannot do that, and, therefore, that you really did not lose anything because that is all the lawyer would have been asked to do for you.  Or do you say that if you had had a lawyer you would have been given advice that would have directed attention to the aspects of your case that would have defended your legal rights?

MR VAN TONGEREN:   First of all, sir, if we had a lawyer, he would have advised us that we could have sold our properties to get money.  That is the first thing.  As I said, I can honestly tell your Honour, right to your Honour’s face, until you said that today, I did not know that we could challenge - - -

KIRBY J:   For all we know, you might have had a big mortgage and you may not have had much equity in the property.

MR VAN TONGEREN:   I had about half and half.  I think the figures are written down anyway.  They were written down in the case to decide whether they were going to take the properties or not - this was in 1993.  The figures are available there.  There was money available on both the property and the house too, if that had have been done, to get a lawyer.  That is the point there.  I can tell your Honour honestly, I can look your Honour right in the eye and say until your Honour said that today, I did not know that could even be challenged.  The court order was, “This will be dealt with after the trial and that is that.”

KIRBY J:   You say that, effectively by putting the caveat on your property, the Crown effectively put you out of the capacity to represent yourself because you neither had a court-appointed advocate nor did you have access to your funds to get one for yourself, and you were in custody at the time.  Is that your complaint?

MR VAN TONGEREN:   Yes, your Honour.  We were indigent; we were without bail.  Even if we had have been given bail, as in the case of Connell, they waited until his prison sentence expired, when he had spent, I think it was two or three months on bail to put his case together, then he went to trial.

KIRBY J:   But you elected not to take part in the criminal trial.  Might you not have done the same if you had had a lawyer?

MR VAN TONGEREN:   Again, what we are following is the only bit of legal advice we knew, and that was from the advice of Murphy in the dissenting judgment in the McInnes Case, and that is where, if you - - -

KIRBY J:   That was the state of the law before Dietrich.

MR VAN TONGEREN:   That was 1979, I think the case was.  His advice was, if you are faced with proceedings in the court which are a denial of justice, then you refrain from taking any part in proceedings, which is what we did in the first few days.  This is why, in fact, none of the videos and stuff were ever challenged.

KIRBY J:   Did you ask the judge to appoint a counsel to assist you?  Did you make any application to the court?

MR VAN TONGEREN:   We were trying for bail, your Honour; we were trying to get bail.  In answer to your Honour’s question to that, no, we did not ask for a lawyer.  We were trying - - -

McHUGH J:   But if you had had a lawyer, you would have wanted him to run the argument that you had a moral justification for doing what you did, irrespective of the letter of the law.  Is that not the defence that you wanted to run?

MR VAN TONGEREN:   I will put that in two - I am not evading the question, your Honour, I want to put that in two contexts; firstly, it would certainly have put the justification there in regard to the conviction; secondly, on the sentencing aspect, we would have put the case for very, very good mitigating circumstances.  I want to put that on two levels.  This is what I would put there, on those two levels.  I think your Honour knows what I am saying there.

McHUGH J:   Yes.

TOOHEY J:   Mr Van Tongeren, the additional 10 minutes have expired.  I think you need to leave some time for Mr Blitterswyk.  It is a matter between the two of you as to how you divide up the time, as I have said, but there is only another 10 minutes available.

MR VAN BLITTERSWYK:   Your Honour, Jack pretty well covered it.  I was just going to have a few words about the Dietrich thing, you know, if I had a lawyer - - -

TOOHEY J:   Just a moment, Mr Van Blitterswyk.  Anything you say, you will just need to go to the microphone, otherwise it will not be picked up in the transcript.

MR VAN TONGEREN:   Could you give me two more minutes, your Honour?

TOOHEY J:   Yes, all right, and then we will hear from you, Mr Van Blitterswyk.

MR VAN TONGEREN:   Because I was going to say this:  in the case of the indemnity against Russell Willey, this man was a criminal, and when you read through the actual guidelines for prosecution against indemnity he should never, as a main offender in the actual law breaking, been given an indemnity; but on the political side he was a minor player.  The State used or abused the law to set the main offender at liberty by punishing all the lesser offenders.  There is a political overtone in that, sir.  That is what I want to say about that.

TOOHEY J:   Thank you, Mr Van Tongeren.  Mr Van Blitterswyk, would you go to the microphone, please.  You have the balance of what time was - the 40 minutes.

MR VAN BLITTERSWYK:   All I have got to say, your Honour, was about the actual Dietrich thing.  If I would have had a lawyer I could have put across that my place was not a paramilitary training camp, and I believe that my sentence would have been far less.

TOOHEY J:   Your application relates only to sentence, so the Dietrich point that you are making is in relation to legal representation on a plea in mitigation, in effect, is that right?

MR VAN BLITTERSWYK:   That is right, yes.  That is all I had to say.

McHUGH J:   Mr Van Blitterswyk, if in fact you had had a lawyer, can it be said that you would simply have wanted to conduct a political campaign in court, because that you cannot do.

MR VAN BLITTERSWYK:   I would not have myself; I would have just put across the facts that, you know, I done what I done believing I was doing the right thing, and put all the facts without having lies about paramilitary and stuff, and I reckon my sentence would have been far less.  That is the point, and the way I would have run my case.

TOOHEY J:   Thank you, Mr Van Blitterswyk, thank you.  Mr McKechnie, the Court would like to hear from the Crown in so far as the application for special leave to appeal against conviction is concerned on what has been referred to as the Dietrich point, and in particular the availability of Mr Van Tongeren’s property, and so far as in each case there is an application for special leave to appeal against sentence, anything that you might have to say about the totality of the sentences.

MR McKECHNIE:   Your Honours, very briefly, in a sense in response to the second applicant, Mr Van Blitterswyk, admittedly not speaking directly for the first applicant, Mr Van Tongeren, but at page 110 and 111 of the application book is there set out Mr Van Blitterswyk’s opening to the jury.  More particularly, at page 111, where he says:

we have been denied bail, and we have also had to defend ourselves because we haven’t been able to get lawyers who want to fight it the way we want to fight the case.  The Crown is fighting the case as a political case, not as a criminal case, yet all our lawyers only wanted to do it one way so we have been forced to do it on our own.

KIRBY J:   Is this not a difficulty, that unless people are given sound legal advice, especially when they are looking down the tunnel at a very large sentence, that they tend to do it their way, and that may be an ignorant way that does not really properly protect them?

MR McKECHNIE:   It may be, your Honour, or it may be a deliberate frustration of the trial, as his Honour the Chief Justice concluded.

KIRBY J:   But do you understand a certain sense of discomfort, that the Crown puts a caveat on a person’s property and that puts a restraint on their use of their property for their proper legal representation.  Then the person faces very lengthy sentences on very serious matters which, on one point of view, from the point of view of society, should be properly tried.  That means, in a serious criminal case, multiple offences, serious offences, tried with the assistance of counsel.

MR McKECHNIE:   Your Honour, one would start from the point of view that it always better if people are represented at trial in any case, particularly in a case such as this.  It does appear that at the commencement the caveat, or the restraining order, in fact, under the Crimes (Confiscation of Profits) Act, was placed on the property at a very early stage, at a time, as I understand it, when each of the applicants had access to legal advice.  Under the Crimes (Confiscation of Profits) Act there are procedures for the release of funds and dealing of money for - - -

KIRBY J:   But it you do not, it is a sort of catch 22 situation:  if you do not have a lawyer that tells you that, you do not know that and you just think the Crown, in  its mighty power, has got your property and has you locked up and you do not have a lawyer for the trial, you cannot be properly represented.  That is what Dietrich said is not acceptable in a civilised country.

MR McKECHNIE:   Yes.  On the other hand, your Honour, there was applications for legal aid which were refused.  Of course, it is not presently before the Court; it is mere speculation as to why they are not refused.  He was a man - - -

KIRBY J:   That was under the remit of McInnes at that time, a different rule.  We now have the wisdom of Dietrich.

MR McKECHNIE:   No.  The question of legal aid was not under McInnes, that fell to be decided in the ordinary way.  The fact that the applicant Van Tongeren had access to funds would, in the ordinary course - I do not know in this course - be a relevant factor in the grant or refusal of legal aid by the Legal Aid Commission.  Can I say, your Honours, their Honours in the court below were acutely aware of this problem.  They refer to the fact that Dietrich was, itself, under appeal to this Court.  That said, this case fell to be decided on the law as it then existed.  The Court of Criminal Appeal was acutely aware, I would submit, in this case of the possibility of a miscarriage of justice, highlighted, of course, by the action of the applicant Van Tongeren in going on a hunger strike and absenting him from the trial.  For that reason, the Court of Criminal Appeal looked very, very carefully at the question of miscarriage of justice, in my respectful submission, and concluded, on the basis of the law as it then existed, that there was no miscarriage of justice.

KIRBY J:   You say “as it then existed” but Dietrich was not a rule of practice for the future, Dietrich was the declaration of the common law; therefore, by the theory of our law, it was in force at the time of Mr Van Tongeren’s application for legal aid.  These are very serious crimes, very, and somewhat unique crimes for our country, all the more important, it seems to me, arguably, at least, that they should be manifestly properly tried, with the aid of counsel, the restraining aid of counsel.

MR McKECHNIE:   Your Honour, a special leave application is no time or place to permit me to debate, with great respect to your Honour, the question as to whether the law was declaratory of the common law as it always existed or whether, having regard to McInnes, courts were in fact justified in acting under what the law had been declared in McInnes. 

Your Honour, I cannot, obviously, on a special leave application answer completely the point that, if your Honour came to the conclusion that on an application of the Dietrich principle, this case fell to be a potential miscarriage of justice, because that was not the basis of the reasoning of the court below, because that decision was not then handed down.  What I can say to your Honours, with some firmness in the submission, is that their Honours were acutely aware of all the issues that your Honour has just put to me, in carefully examining this case and these cases.

KIRBY J:   But may they not have come to a different view if they had had the benefit of Dietrich?  And is that not, given the very lengthy sentences and the unique nature of the crimes, something that might warrant the attention of this Court?

MR McKECHNIE:   In my respectful submission, the answer to the first, having regard to the sentences, is no - I will address your Honours briefly on that in a minute - and when your Honours come to consider the question of miscarriage, which is Dietrich as well, one cannot, in my respectful submission, divorce the extensive delay.  Even assuming that the applicant sent off papers which never arrived for a year, there has been from, I think, from 1993, October 1993, very, very significant delay, which, of course, on any trial, has to be taken into account in relation to prejudice to all parties. 

The sentences themselves were certainly, in relation to each of the sentences imposed, within a range.  The only argument that might be mounted is the totality of the sentences, one on the other.  Perhaps for special leave - although I know your Honour the presiding Judge invited me to comment on it, the comment that we would make for special leave is that those were matters upon which the court had the assistance of counsel, at least in respect of Van Blitterswyk, and were matters where their Honours, in my respectful submission, applied the correct principles of law - - -

KIRBY J:   It seems a crushing - or arguably, at least arguably, a crushing sentence:  19 years.

MR McKECHNIE:   Your Honour, the whole application of a totality principle and what might be crushing or what might not be crushing is, in the end, the subject of individual views as to the discretionary exercise of the sentencing power.  This was a sentence passed by a District Court judge and reviewed by the Court of Criminal Appeal.  The review which your Honour would undertake by the characterisation of it as “crushing”, in my respectful submission, falls well short of saying that their Honours erred in the exercise of that review, because that is really what it is about, in my respectful submission.  That, absent a point of principle which is established, cannot be a special leave matter, the mere fact that the sentence might be regarded by some as crushing when the totality principle has been applied, without apparent error.

McHUGH J:   It is difficult to escape the conclusion that there is a large deterrent element in this sentence.  Leave out the deterrent element, it may be very difficult to justify, even under the totality principle, a sentence of these lengths in the case of Mr Van Tongeren.  Do you accept that the deterrent element has played an important role in the sentence?  If so, what effect should be given to deterrence in this type of case?

MR McKECHNIE:   I am sure that a deterrent principle played an effect when one looks at page 3 and the way that his Honour commented:

You had gathered around you in this period of time a group of like minded people and together you brought into the streets of Perth a taste of terrorism from which we had thought we were exempt.....you waged a guerilla war against the public.

But I would not, for a moment, concede that the sentences, with or without a deterrent effect, are excessive, having regard to all the circumstances.  When one examines the degree, the nature of the crime, the period over which the crime occurred and the types of crimes and the individuals involved, it is no answer to say, “Well, it was just property,” when a number of Chinese restaurants, for example, were fire bombed, torched, when there was a great degree of burglaries, all for profit, to finance the aims of this organisation.  I would accept that there is a deterrent element but I would strongly submit that it was an appropriate matter to be taken into account by the learned trial judge.  He did not err and neither did the Court of Criminal appeal in their evaluation of his sentence.

TOOHEY J:   Mr McKechnie, at the time these sentences were passed, what was the regime of parole in the sense that if a declaration of eligibility for parole was made, what was the consequence of that?

MR McKECHNIE:   I was rather hoping Your Honour would not ask for that, because I have always had trouble in sentences above six years; but, effectively, a person served - I will just check with my junior - it is, effectively, two-thirds minus two years.

TOOHEY J:   And if no declaration of eligibility for parole is made?

MR McKECHNIE:   I think it was two-thirds, your Honour, but I will check.  Yes, two-thirds, without the two years.

TOOHEY J:   So it is the same, without the benefit of the additional subtraction of two years.

MR McKECHNIE:   That is correct, your Honour.

TOOHEY J:   So in the case of Mr Van Tongeren, having regard to the time when he was convicted, how much remains of his sentence?

MR McKECHNIE:   I have not done the sums, your Honour, but it would be two-thirds of 18 years, so about ‑ ‑ ‑

TOOHEY J:   That is, when I say how much remains before eligibility for parole?

MR McKECHNIE:   Probably about - before eligibility for parole, it would be about four years, on my calculation, your Honour, but I would not want to be held to that.

TOOHEY J:   And Mr Van Blitterswyk is on parole?

MR McKECHNIE:   He is on parole, yes.

TOOHEY J:   Yes, thank you.

McHUGH J:   If you compare the sentence - the case of Mr Van Tongeren, with sentences in, say, New South Wales, it is equivalent of 30 years, with a 20 year minimum sentence.  It is a very strong - a very long sentence.

MR McKECHNIE:   I am not entirely sure, with great respect to your Honour, that I can accept either your Honour’s maths or reason.

McHUGH J:   In New South Wales, for example, a minimum term, before you are eligible for parole, tends to be something like two-thirds of a head sentence.  Mr Van Tongeren’s, if you add the 21 months, or the 14 months that he spent in prison beforehand on remand, it comes out fairly close to 20 years.  It is not 20 years but it is close enough to it, is it not, without parole.

MR McKECHNIE:   Say 20 years, then with what is taken off that, he is not going to do 20 years, of course, if I understood your Honour correctly.  I may have misunderstood your Honour - - -

McHUGH J:   No, perhaps I misunderstood it.  When will he be eligible?

MR McKECHNIE:   As I say, I would not like to be entirely held to it, but up here, I would say, in about four years time.  It would certainly be two-thirds of - I was working on 18.  There is 12 less 2, so - - -

TOOHEY J:   So, in effect, it is about 12 without the benefit of another two years, had there been a declaration of eligibility.

MR McKECHNIE:   Yes, that would be right, yes.

McHUGH J:   Plus what he spent in gaol on remand.

MR McKECHNIE:   Yes.  His Honour took that, of course, into account in reducing it.

TOOHEY J:   Yes, I know.

MR McKECHNIE:   The overall sentence was 20 years.  I do not quibble, of course, with the fact that the sentence was a heavy sentence.  I would dispute, with great respect, your Honour, the epithet “crushing”.  What I do say about it in a special leave - and I will close - is that there is no, apart from a challenge as to the overall total, there is no identifiable error asserted by the applicant in relation to the sentence.

KIRBY J:   But we had to try to concede what, if he were represented before us today, would be the arguments that would be put and what, in the event that special leave were granted, assuming he could then secure some sort of representation, the arguments would then be put of principle.  It certainly would be very unusual to grant special leave to look at a sentence.

MR McKECHNIE:   The arguments that would be put by counsel, your Honour, would still have to take into account what was said both by the trial judge and by the Court of Criminal Appeal to determine error, in my - - -

KIRBY J:   But it would be properly analysed.  We would be looking at comparative figures of the other co-accused. We would be looking at the sentence imposed on the person who was given an indemnity.  We would be looking at the principles of sentencing.  We would be looking at matters as a question of principle and not simply a reaction that it looks a very large sentence.

MR McKECHNIE:   All of which matters, I might say, your Honour, their Honours dealt with in some detail.  The indemnity was a complete indemnity, so there was no sentence there.  Apart from that, comparative sentences were examined by their Honours.  Questions of that nature were looked at in detail by his Honour, which is why I say it comes back to whether there is an identifiable error in the court below.  Of course, I say there is not, but I understand your Honour’s point.

McHUGH J:   You see, what makes this case is unusual is that the accused were sentenced not merely for the consequences of the crime or the inherent evil in what they did, but because of a theory that connected all the offences.  If, for example, these offences had been committed by some criminal psychopath for his own gratification, would he have got the same sort of

sentence?  But what the judge said, particularly in relation to the Ko-Sing restaurant, a bombing, or explosion, “was a departure into the black deaths of terrorism.”  So it was this notion of terrorism that seems to be the link between all these sentences.  That is what makes the case unique.  Is it that fact alone that is entitled to make this case at the higher end of the range or perhaps go beyond what might be involved in the ordinary range of sentences?

MR McKECHNIE:   That fact alone, in my respectful submission.  If crimes are done with the purpose of, as his Honour said, “waging guerilla war” on the Australian community, or a part of it, that fact alone would justify the sentences that were imposed.

McHUGH J:   Does it?  They were not convicted of terrorism; that was not the offence they were charged with but one gets the impression that they were sentenced for terrorism.  Is that a mistake of principle?

MR McKECHNIE:   I would, with great respect to your Honour, say the impression is wrong.  You cannot divorce entirely the actual crimes from the factual matrix in which they occur, whatever the crime may be.  The judge recognised that terrorism was the factual matrix, but when he went through, very carefully, and analysed each crime as a crime, in my respectful submission, he imposed the appropriate penalty for that crime and did not weigh it or add it in the way your Honour has said.

TOOHEY J:   Thank you, Mr McKechnie.  Mr Van Tongeren, do you wish - you have a right of reply, if you wish to exercise it, in respect of what has been said by Mr McKechnie.

MR VAN TONGEREN:   Yes, I do, your Honour.  I will try not to take too much time.  With respect to the Dietrich principle, again I will reiterate, the Dietrich Case went to trial in 1988-89.  It was actually going on at the same time - - -

TOOHEY J:   Yes, we are familiar with that.

MR VAN TONGEREN:   Okay.  In regard to the hunger strike, we did that as a last resort to try and draw attention on the fact that we were being denied justice in the impending trial.  I want to bring that point.  We were not out to - in the court we did not carry on with shenanigans or abuse and all the rest of it, we just said, “We want a fair trial.”  When we could not get it, we applied, as we understood it, the only advice we got, the McInnes Case, refused to take part.  That is why the voir dire was not done. 

On the parity of sentencing, again I mentioned earlier Haabjoern and Chester and Mahood, which they drew on heavily.  Those sentences, the actual offences were far more serious in themselves anyway and they were less, as it stood, anyway.

McHUGH J:   Yes, but in your case there are more convictions and they are linked by this theory of terrorism.

MR VAN TONGEREN:   That is the next point I want to make, your Honour.  In the application book there I have gone into - and I have quoted some of the experts on what terrorism really is.  Professor Wilkinson and Dr Conor Gearty, in reference to the High Court - and this is also of significance - he is pointing out where, if people are not careful in the way that they put generic definitions on things, then the actual - the whole business of give every man his due; let the punishment fit the crime, it starts getting twisted out and out and the divisions between it, the degrees and that, become blurred.  If unscrupulous governments and systems begin to just throw a very bad label on anyone for anything, that government can become very oppressive and misuse the legal system with the excuse of something terrible in people’s minds.  I mean, you have just got to look and the TV and that to see the image we have.

McHUGH J:   Yes, but, Mr Van Tongeren, as I understand it - and correct me if I am wrong - but you accept responsibility for these explosions, for these offences against the State, but you seek to justify it.  But if your acts are contrary to law, the State is entitled to convict you of it and punish you for it in according to the law of the State.

MR VAN TONGEREN:   On the last bit, your Honour, okay.  I want to make another point that I have dealt with in the application book.  On the business of the Ko-Sing bomb, the main instigator in that, the chap that carried it all out, did the whole lot, was Russell Willey.  He even went so far as to steal the explosives to do it.  Even if you accept that we were involved ‑ and I would dispute that - but if you accept it, John and I are the minor players.  I got 10 years gaol without parole; John got 7 years.  I mean, where is the justice here? 

The other thing, the judge, when he made that statement, a very sweeping statement about “you waged a guerilla war” against Australian society, we have not even injured anyone, let alone kill.  Guerilla wars:  I mean, it is a totally different thing.  Terrorism:  it is a totally different thing to what we were convicted of.  But that clouds it and colours it.  What you said before, your Honour, we were not convicted of terrorism, but we were sentenced that way.  What I am putting to you, when you examine the facts as opposed to the story and the lies presented, we are not terrorists.

McHUGH J:   Why was it not legitimate for the trial judge to take into account what he regarded as terrorism.  You may debate whether or not it is terrorism according to this or that person’s definition of it, but whatever it was, it was all these crimes against you, for which you have been convicted, linked by a theory.  Your theory was to drive Asian people out of the Australian community, and you were prepared to go to the length of destroying property to do that. 

MR VAN TONGEREN:   Okay.

McHUGH J:   On that basis, why should you not get a heavier sentence, because of the end you had in mind, than somebody else who blew up or committed arson, for example, for insurance purposes, for example, just restrict it, financial greed?

MR VAN TONGEREN:   We are not greedy people.  Anyway.  What I am going to try and say is this - - -

TOOHEY J:   I am afraid your time is up, Mr Van Tongeren.  Do you want to finish the sentence - - -

McHUGH J:   Answer my question, please, Mr Van Tongeren.

MR VAN TONGEREN:   The fact of the matter is, we are not terrorists and that terrorism label was incorrectly, erroneously applied to us and we were sentenced on that.  Unfortunately, I do not have the time to go on it further, but that is the point I want to make there.  The parity of sentence, I mean, two years for Johnny Bain and six and a half times for me and something like three and a half times for John, that is right over the top.  I will finish up on that.

TOOHEY J:   Can we take it that your remarks apply to Mr Van Blitterswyk as well?

MR VAN TONGEREN:   Yes.

TOOHEY J:   Yes, thank you.  The Court will take a short adjournment to consider its course of action in this matter.

AT 11.00 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.10 AM:

TOOHEY J:   What I am about to say in respect of the application by Mr Van Tongeren for special leave to appeal against conviction I say on behalf of a majority of the Court.

The applicant seeks an extension of time in which to apply for special leave to appeal from the judgment of the Court of Criminal Appeal on 16 April 1992 which dismissed his appeal against conviction on 53 charges and refused leave to appeal against the sentences which resulted.  There was a delay of four years between the judgment and the application which is not entirely explained in the material filed. 

The applicant has advanced several grounds in support of his application.  Some of the matters complained of relate to the circumstances of the trial, in particular, the absence of legal representation.  The Court has considered the material accompanying the application and Mr Van Tongeren’s oral submissions, together with the respondent’s summary of argument and oral submissions.  The Court is not persuaded that in all the circumstances, including the applicant’s behaviour at trial, the Court of Criminal Appeal erred in rejecting the appeal against conviction. 

What I am now about to say is the view of the Court.  As to the application for special leave to appeal against sentence, the Court is not persuaded that there was any error of principle on the part of the Court of Criminal Appeal.  In those circumstances, there is nothing to be gained by an extension of time in respect of the substantial delay that has occurred.  Accordingly, in the case of each application by Mr Van Tongeren, an extension of time in which to seek special leave to appeal is refused.

In the case of Mr Van Blitterswyk v the Queen, what I am about to say is the view of the Court.  The applicant seeks an extension of time in which to appeal from the judgment of the Court of Criminal Appeal on 16 April 1992 which dismissed his application for leave to appeal against the sentences he received on a substantial number of charges of a serious nature.  The time lapse is the same as in the case of Mr Van Tongeren’s application. 

The matters urged in support of the application involve the sentencing discretion of the trial judge, the exercise of which was upheld by the Court of Criminal Appeal.  An appeal would have no prospect of success. 

Accordingly, there is nothing to be gained by an extension of time in respect of the long delay which has taken place.  The application for an extension of time in the case of Mr Van Blitterswyk is refused.

AT 11.12 AM THE MATTER WAS CONCLUDED