Tuesday, May 17, 2016

Screen Australia, the Commonwealth Ombudsman & Franz Kafka!

The Commonwealth Ombudsman, along with the Australian Government Solicitor, endorses the proposition that evidence a crime has been committed can be withheld from the person accused of committing the crime! 


James Ricketson
Europe Guest House
# 51, Street 136 Phnom Penh

Mr Colin Neave AM
Commonwealth Ombudsman
GPO Box 442
ACT 2601                                                                                          

17th May 2016

Dear Mr Neave

Imagine this:

Screen Australia’s $5,000 a day barrister, Mr Smith, adjusts his wig and addresses a Judge in the Supreme Court. His legal team of three look on, along with representatives of Screen Australia’s senior management.

MR SMITH Your Honour, in accordance with, 11A(4) of the FOI Act, under section 42(1), Screen Australia is under no obligation to provide Mr Ricketson with the documents he seeks because they are subject to legal professional privilege and hence exempt from disclosure.

JUDGE These documents to which you refer, Mr Smith, are letters, emails and other forms of communication from Mr Ricketson, are they not?

MR SMITH No, your honour. The documents are those in which Ruth Harley, then Chief Executive at Screen Australia, presented Mr Ian Govey, Australian Government Solicitor with evidence that Mr Ricketson had intimidated of place at risk members of Screen Australia’s staff with his correspondence.

JUDGE And why does your client, Screen Australia, believe that Mr Ricketson is not entitled to be appraised of the evidence Ms Harley believed warranted his being banned? An action which Ms Harley knew would make it impossible for Mr Ricketson to pursue his career as a filmmaker in this country?

MR SMITH Your Honour, Screen Australia's position on this is supported by both the Commonwealth Ombudsman and the Australian Government Solicitor.

JUDGE The withholding of evidence from the accused, of the crime he has been charged with?

MR SMITH There is no suggestion that Mr Ricketson committed a crime, you honour. However, it is Screen Australias contention…

JUDGE Is ‘placing at risk’ not a crime, Mr Smith? What kind of risk? Did Mr Ricketson arrive at the offices of Screen Australia wielding a weapon of some kind? Did he make threats to commit grievous bodily harm? Did Screen Australia make an application to the courts for an AVO to be taken out against Mr Ricketson?

MR SMITH No, your honour.

JUDGE According to the evidence I have in front of me, even when Ms Fiona Cameron called the police to have him arrested for trespassing in the Screen Australia foyer, Mr Ricketson remained calm and did not use abusive language to either the police or to members of Screen Australia's staff. Is this not so?

MR SMITH Yes, your honour.

JUDGE Then I am mystified, Mr Smith, on the need for such secrecy. Is there a question of national security involved in this matter of which I am unaware? Is this the reason why evidence of Mr Ricketson’s guilt must be kept secret?

MR SMITH No, your honour. However…

JUDGE I trust, Mr Smith, that you will be able to share with me the evidence you say Mr Ricketson is not entitled to be shown and which you insist cannot be tested in this court.

MR SMITH I will argue in these proceedings, your Honour, that in accordance with, 11A(4) of the FOI Act, under section 42(1), Screen Australia…

JUDGE Yes, yes, yes, Mr Smith. I trust that Screen Australia is not wasting this court’s time in mounting a defense, before me, of the proposition that an accused person can be found guilty of a crime without his being provided with any evidence that he is guilty as charged?

Mr Smith glances nervously back at his legal team, unsure how to proceed.

JUDGE Mr Smith, you do, I take it, have documented evidence that Mr Ricketson intimidated members of Screen Australia staff?

MR SMITH Your honour, one member of staff in particular felt very intimidated by Mr Ricketson’s correspondence.

JUDGE ‘Felt’ intimidated?


JUDGE And did Mr Ricketson intimidate her?

MR SMITH She felt that Mr Ricketson’s correspondence was intimidating.

JUDGE And you have evidence to present to the court that this person had good reason, based in what was contained in Mr Ricketson’s correspondence, to feel that he was intimidating her?

MR SMITH This is our contention, your honour.

JUDGE But you wish this case to proceed without the evidence that Mr Ricketson intimidated this individual being presented to the court and being tested by Mr Ricketson’s councel?

MR SMITH Your honour, in accordance with in accordance with, 11A(4) of the FOI Act, under section 42(1), Screen Australia…

Mr Neave, the office of the Ombudsman’s response to Screen Australia’s ban on me, from day one, has been "Mr Ricketson has no right to be provided with evidence that he intimidated or placed at risk any member of a Screen Australia's staff."

At any point is the last 4 years your Office could have picked up the phone and said to Ruth Harley, and now Graeme Mason, "Why do you refuse to provide Mr Ricketson with evidence of his guilt?"

Instead you allow Graeme Mason to go through the cynical exercise of citing a section of the FOI Act as a reason not to provide me with evidence of my guilt. This is nonsense.  And you know it is. And so do members of the Screen Australia board and the Australian Government Solicitor.

I suggest that you call Mr Mason today and bring this farce to an end. Yes, your office, the office of the Australian Government Solicitor, Graeme Mason and members of the Screen Australia board will wind up with some egg on their faces when forced to admit that I never intimidated or placed anyone at risk. However,  their embarrassment in May 2016 will be nothing compared with what they will have to endure if this matter becomes a Statement of Claim being heard in the Supreme Court and Screen Australia’s legal counsel has to argue in favour of the proposition that Screen Australia is within its right to withhold evidence because 11A(4) of the FOI Act, under section 42(1) the FOI Act allows it to do so.

best wishes

James Ricketson

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