1. Dr. Haneef was arrested at Brisbane Airport on Monday 2 July 2007. He was questioned for 50 minutes at the airport from 11.05pm.
  2. Dr. Haneef was taken to AFP headquarters at Wharf Street. After Dr. Haneef waited for over two hours in an interview room at AFP headquarters, he was allowed to sleep and questioned the next day from 11.01 am. He did not want a lawyer present. He freely answered the nearly 12 hours of questions that the two police officers wanted to ask him.
  3. At 10.15am on 3 July 2007, an order was made by Mr. Jim Gordon, magistrate, extending the 4 hour questioning time by 8 hours. At 5.30pm, Mr. Gordon extended the investigation or questioning time by another 12 hours, the maximum allowed under part 1C Crimes Act. An order to specify time during which Dr. Haneef could be held without questioning (referred to as “downtime”) in an amount of 48 hours was made by Mr. Gordon at 11.05pm on that same evening, 3 July 2007.
  4. A further order for specified time of 96 hours was made 7.05 pm on Thursday, 5 July 2007. Dr. Haneef’s solicitor Peter Russo was present but was excluded from the room while Mr. Gordon read secret information tendered to him by the AFP applicant.
  5. Stephen Keim SC was engaged to act for Dr Haneef on Friday, 6 July 2007.
  6. On Monday, 9 July 2007, Stephen Keim appeared on an application for 5 days of downtime. He argued that a failure to provide the basis on which the application was being made was a breach of natural justice implied by s.23CB(6) which provides “the person, or his legal representative, may make representations about the application”. After my submissions, Mr. Gordon adjourned the matter for two days to allow the AFP to obtain legal advice. He made an interim downtime order for two days.
  7. On Wednesday, 11 July 2007, the AFP was represented by Mr. Howe, a Queen’s Counsel from Canberra. Dr. Haneef’s lawyers were provided with Mr. Simms’ Application and Statutory Declaration in support. Mr Keim argued that Mr. Gordon should disqualify himself on the ground of apprehended bias in that he had spent time alone with the applicant in previous applications where Dr. Haneef and his lawyers were not present; when he had sent Mr. Russo out of the room; and when he had heard and granted applications for search warrants. Mr. Gordon adjourned until Friday to consider the matter.
  8. On Friday, 13 July 2007, the AFP withdrew their application for more downtime. Mr. Gordon did not have to decide the application to disqualify himself. That evening, going into the next morning, Dr. Haneef was questioned for another 12 hours using up the balance of the available 24 hours of questioning time.
  9. Early on Saturday, 14 July, Dr. Haneef was charged with an offence pursuant to s.102.7(2) of the Commonwealth Criminal Code.
  10. On that Saturday, Haneef’s lawyers Keim and Russo applied for bail for Dr. Haneef before magistrate, Ms. Jacquie Payne. Pursuant to s.15AA Crimes Act, they needed to show that there were “exceptional circumstances”. One of the grounds relied upon was the weakness of the Crown case. They relied on Mr. Simms’ material as indicating the weakness of the case as well as aspects of the submissions by the DPP officers who appeared for the Crown.
  11. Unbeknownst to any of Dr. Haneef’s lawyers, shortly after the bail application finished, four senior Australian Federal Police officers, David Craig, Frank Prendergast, Ramzi Jabbour and Luke Morrish, discussed the possibility that the bail application might be successful. They came up with a contingency plan. They would get the Minister for Immigration to cancel Dr. Haneef’s visa. This would allow them to keep Dr. Haneef in detention. At 5.22pm on Saturday, Mr. Craig was able to report that these “contingencies” were “in place”. Mr. Craig does not say to whom in the Minister’s office or to whom in the Department of Immigration and Citizenship he spoke, to put the plan in place. On Monday morning, 16 July 2007, at 8.10 am, Mr. Morrish, one of the Australian Federal Police officers, forwarded Mr. Craig’s affidavit to Peter White, a high ranking officer in the Department of Immigration and Citizenship. Mr. White would, shortly thereafter, prepare all the documentation which would allow the Minister for Immigration, Mr. Andrews to cancel Dr. Haneef’s visa.
  12. At approximately 11.30am on that Monday, bail was granted by Ms. Payne, subject to sureties amounting to $10,000. In her decision, Ms. Payne said:

    “The case against [Dr. Haneef] as told to me on Saturday, was a SIM card which belonged to [Dr. Haneef] was left in the United Kingdom with his second cousin with whom he was residing. There was no evidence before me the SIM card was used in any terrorist activity.

    Further, the SIM card was given to the UK suspect 2, more than 12 months ago, and, in relation to the element of the offence there have been no submissions to support the element of the offence that the defendant was reckless, other than that he was living with UK suspects 1 and 2 and he gave the SIM card to UK suspect 2.”

  13. In setting out her reasons for granting bail, Ms. Payne also said:

    “The Crown does not allege that the defendant has any direct association with any terrorist organisation and further [concerning] the provision of the resource, the SIM card, the defendant … was reckless as to whether the organisation was a terrorist organisation.

    There is no evidence or submission that the SIM card was used or associated with any terrorist attack or activity other than being in a vehicle that was used in a terrorist attack.”

  14. Shortly after 1.00 pm, the same day, Mr. Andrews cancelled Dr. Haneef’s work visa, thus executing the arrangements of the AFP officers who had been party to the emails. If Dr. Haneef were to meet his bail sureties, he would immediately be taken into immigration detention.
  15. Ms. Payne had adjourned the criminal proceedings until 31 July 2007 for a committal mention. Dr. Haneef’s lawyers filed an application seeking that the charge be struck out or amended on the basis that it had omitted a crucial element of the offence charged. The element concerned the allegation that the resources given (the SIM card) would help the organisation to whom it was given (the terrorist organisation) engage in a terrorist act.
  16. The Commonwealth agreed with the need to amend the charge. However, they sought to have it put off to a later date. Dr. Haneef’s lawyers insisted that the matter be dealt with on the proposed mention day, 31 July 2007.
  17. As it turned out, on Friday, 31 July 2007, both Mr. Macsporran SC, who appeared on the mention for the Crown and Mr. Bugg, the Commonwealth Director of Prosecutions, announced that the charge would be discontinued. Magistrate, Ms. Wendy Cull, struck the charge out. Mr. Bugg announced that he had considered the evidence held by the Crown and evidence likely to be obtained from investigations still being carried out in considering whether there was any prospect that a conviction would be obtained. The prosecution had collapsed.

Peter Fray

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