Canberra anti-apartheid activist Kerry Browning goes on trial on May 27. KRISTIAN WHITTAKER outlines the contorted history of this political saga.
Against the background of a peaceful, long-running and very effective campaign by anti-apartheid activists aimed at isolating the South African embassy and exposing its role, in early 1988 three cars belonging to the South African and US embassies were allegedly firebombed.
Kerry Browning and her husband, Maxwell Nemadzivhanani, were charged over the firebombings in October 1988. At the time, Nemadzivhanani was the Pan Africanist Congress chief representative to Australasia. Police laid 11 charges against Browning. Nemadzivhanani was charged with being "knowingly concerned", but this was dropped after an international outcry, especially from African nations.
In the period leading up to the arrests, police harassed and questioned a wide variety of anti-apartheid activists, including those from other solidarity movements, public radio 2XX and trade unions. Several of these activists' homes were broken into by persons unknown.
ASIO and the Australian Federal Police (AFP) had placed the home of Browning and Nemadzivhanani under 24-hour surveillance, with listening devices planted in their bedroom and elsewhere in their house, and arriving and departing friends being videoed.
On the day of the arrests, up to 40 armed plainclothes police shouldering video cameras raided Browning's house, her workplace and the PAC office. They collected an extensive range of "evidence": leaflets and posters, contact lists and photos from numerous pickets and demonstrations outside the South African embassy, household chemicals and even rubber bands.
Despite the massive sweep and surveillance operation, at the beginning of the committal hearing the only "evidence" the police could produce was a Coca-Cola can allegedly containing some "black powder" and a few common household cleaning items that, police say, could have been used to make the firebombs.
Later in the hearing, police also produced a shopping docket found, they alleged, near the scene of the firebombings and bearing a fingerprint alleged to be Browning's.
Further raids
After her release on $5000 bail, further raids were carried out, and Browning was rearrested on November 21, 1988, for allegedly breaching her bail conditions. An unsigned letter "of a threatening nature" had turned up in US Ambassador Lane's mail. One quarter of a fingerprint on this letter, again alleged by police to be Browning's, was put up as the "substantial link" to the previous charges.
Bail was at first denied. But an appeal to the Supreme Court resulted in her release. This time, however, Browning was landed with a 10 p.m. to 6 a.m. curfew (currently midnight to 6 a.m.). Similar "house arrest" situations operate within South Africa to isolate activists.
Furthermore, bail conditions included a prohibition on Browning or any of her "servants, agents or collaborators" approaching internationally protected persons or property. In effect, this placed the entire anti-apartheid movement on bail: if any activists wanted to exercise their democratic right to protest outside an embassy, their actions could affect Browning's bail.
The main political work of Nemadzivhanani of course involved his making contact with diplomatically protected persons in his role of ambassador of his organisation.
One of the other consequences was the refusal of the US government to grant Nemadzivhanani an entry visa, necessary for him to take up an appointment as PAC representative to the United Nations in New York.
Browning and Nemadzivhanani had hoped all the charges would be dropped early in the committal hearing. The police evidence, they felt, was flimsy to the point of being farcical. But it soon became obvious the prosecution was prepared to go a long way in order to make the charges stick.
New charges
By December that year, the police had added new charges — 10 counts of "imposition" for Browning's alleged defrauding of the Department of Social Security and the Housing Trust by understating her income. The amounts supposedly involved were trivial. Browning suggests a careful check of the figures reveals she received less than she was entitled to. At the time these new charges were announced, they were front-page news in the local media, but when they were dropped last August, there was no coverage at all in the press.
The committal hearings began in April 1989. On occasion police were uncertain whether exhibits tendered were concerned with Browning's case or a different one. The court heard admissions of AFP involvement with unaccountable and secret organisations including ASIO and US and South African "security" agencies, as well as ASIO's surveillance, phone tappings and other monitoring of the PAC.
Diplomats from the US and South African embassies (the complainants) failed to appear and give evidence; this followed the withdrawal of a South African official from the hearing as soon as Browning's defence counsel questioned him about his duties.
The prosecution's case began to come unglued. First came the revelation that the fingerprint on the shopping docket had been identified as Browning's by the police officer in charge before it had been enhanced by fingerprint specialists and subsequently identified by the AFP.
Secondly, in spite of the prosecution holding many samples of Browning's handwriting, its expert was able only to say there was a "probability" that the "threatening letter" had been penned by Browning. And in this expert's first three reports to the AFP, the "probability" had been merely a "possibility". Until the shopping docket with the fingerprint turned up, the police had in fact been investigating another suspect — whom they had regarded as the prime suspect.
Concerning the "threatening letter", the prosecution alleges it was written on red-coloured paper from Browning's office. However, there was ample opportunity for someone else to obtain the paper.
From August to November 1988, the office where she works was repeatedly broken into. Despite an expensive alarm system, neither police nor workers were notified of the break-ins. In the handwriting expert's report it is documented that ASIO was 'accessing' my workplace.
A year ago, the chief magistrate of the ACT ruled there was insufficient evidence that Browning was at the scene of the 1988 firebombings. He dismissed the principal charges against her. Also dismissed was a charge of possessing an explosive substance.
However, he committed her to trial on four charges of being "knowingly concerned" with the firebombings and one charge relating to the threatening letter. Browning has pleaded not guilty to these remaining charges.
'Political scapegoat'
Browning's counsel then pursued a "no bill", arguing that the police evidence for the remaining charges was so weak that the prosecution stood a better than good chance of losing the case. However, the director of public prosecutions dismissed the application.
Alongside the court battles, Browning has had to struggle to gain access to Legal Aid funding for the counsel of her choice. She has had to fight for the right to maintain counsel who are well versed with the case and its complexities, rather than being obliged to chop and change at crucial points of the proceedings.
"I've reached similar conclusions to those of Legal Aid staff themselves: that people who are on middle, low or no income just can't afford to have the legal defence of their choice — no matter how crucial this may be."
The early date set for the trial is also a disadvantage. "The nature of the police 'evidence' throughout has meant that continuity in defence has been a real necessity. And now there's so little time to prepare. There's so many transcripts to go through, counter forensic experts that may need to be engaged, as well as the need to completely refamiliarise ourselves with all the complexities of the previous proceedings."
After two and a half years already before the courts, Kerry Browning believes "This case really highlights the nature of the 'justice-injustice' system in Australia. We've had to deal with intelligence and security organisations, both local and international, that are fundamentally unaccountable. We've had to deal with diplomats who cannot or will not answer our questions even though they are supposed to be the 'victims'.
"I think we're left with my being a political scapegoat.
"Still, if the aim of the charges was to intimidate the anti-apartheid movement, it has failed. The charges have certainly been disruptive, but they have hardly stopped our struggle or that of other activists involved in similar struggles. In fact they've served to heighten the awareness of activists about how the police and the spooks in this country are used as political tools."