Submitted by Peter Kemp on Mon, 02/07/2011 – 23:24
Peter Kemp is a contributor to WL Central and a NSW Supreme Court Lawyer
– WACA –
From the Guardian’s timeline, rewritten for chronology and with legal terminology:
The hearing opened with Clare Montgomery QC, for the Crown Prosecution Service on behalf of the Swedish authorities. Opening submissions are that the Swedish prosecutor, Marianne Ny, is asserted to be an issuing authority for the purposes of a European Arrest Warrant (EAW).
In relation to the offences, the court decides that the alleged victims are to be called Woman A (three counts of sexual assault alleged) and Woman B (one count of r*pe alleged)
Ms Montgomery says the matters are extraditable offences because the definitions in the two countries are the same. “Mr Assange had sexual intercourse with her and exploited the fact that she was asleep.” This is submitted to be an offence under English law. In relation to Woman A there are three counts of sexual assault “without consent” and again contrary to English law.
“Interrogation before prosecution is how the Swedish system proceeds in such cases, she says.”
Addressing the defence’s argument that extradition should not be for the purposes of questioning, she submits that the EAW “clearly denotes a sufficient intention to prosecute” and that questioning does not detract from its main purpose. Ms Montgomery indicates that Swedish lawyer Björn Hurtig will be cross examined tomorrow in relation to the defence claim that the Swedish prosecutors have not provided the evidence against Mr Assange and on the issue of his offers to be interviewed.
On the issue of a fair trial Ms Montgomery’s submission is that Mr Assange will get one in Sweden and the possibility he will be extradited to the USA is a “hypothesis” with the “risk” of it not yet established. Such an extradition she submits has to have the consent of the UK in any event.
Geoffrey Robertson QC opens for the defence case with submissions. He says that Assange would not get a fair trial in Sweden because such trials for r*pe are held in a closed court, ie without press or public attendance. Such a trial creates a “risk of flagrant violation of his rights”.
On this point the Guardian quotes a Press association Report.
Mr Robertson argued that the huge amount of press coverage of events created a risk that Assange would receive a “trial by media”.
Front-page newspaper articles have described his client as a coward for refusing to return to Sweden and face justice, he said, adding: “There’s a danger this kind of media campaign, media vilification, will prejudice this secret trial.”
He pointed out that rape trials in Sweden are often held behind closed doors and that, unless the public and press were allowed to witness proceedings, Assange would not receive a fair trial. “That’s a compelling argument that there’s a real risk of a flagrant violation of his rights,” he said.
“Given the amount of vilification throughout the world that Mr Assange has faced – he’s been accused of being a coward and of vicious behaviour – it’s obviously unfair he should be taken under this warrant and then ushered into a secret court and then convicted or even acquitted. Even if he’s acquitted, the stigma will remain.”
Butressing his argument of Julian Assange not getting a fair trial, in his submissions, Robertson describes Claes Borgström, the Swedish lawyer representing the two complainants as “a politician who has been retained by these women”… this man Borgström” has villified Assange and would be in jail for contempt of court if he was in the UK.” Robertson asserts that it was Borgström who leaked information on the allegations to the Swedish press.
Robertson submits that that Assange would be refused bail in Sweden and be held “incommunicado”, this likely intended to “soften him up for interrogation”.
In relation to the charges Robertson submits that in relation to woman A, she “admits she did consent” and it all occurred within the context of consensual sex. Woman A had asked Assange to put on a condom and he did so. Robertson further submits that “it was hyperbolic and irrational to suggest there was wickedness involved.” Police are not “entitled to slip under the bedclothes”.
In relation to the rape allegations of woman B. Robertson submits that the prosecution description of this is “minor r*pe” which is “…a contradiction in terms. R*pe is not a minor charge.” What Swedish law calls minor r*pe is not r*pe in other jurisdictions, as it does not involve coercion, force or a lack of consent. “It’s not natural to call this r*pe.”
Continuing on the woman B allegations Robertson submits there were “three utterly consensual acts” and then a fourth without a condom “but she let him continue”. After that Assange and woman B made a “jokey” conversation.
On the issue of prosecutorial conduct Robertson submits that Assange was willing to be interviewed using Skype either at the Swedish embassy in London or Scotland Yard however that offer was not accepted, so the EAW issued by Sweden lacked “proportionality”. Assange also offered to be available for interview while he was in Sweden.
Robertson’s further submission is that Ms Ny is not authorised to issue an EAW.
The four key points of Robertson’s submissions to this point are – “unfair trial, double criminality, minor rape and proportionality.”
Former Swedish judge Brita Sundberg-Weitman is the first witness for the defence and gives evidence in examination in chief questioned by Robertson.
A Press Association report states that Sundberg-Weitman is critical of the Swedish authorities, the case was “extremely peculiar” from the beginning and she accused the chief prosecutor of having a “rather biased view against men”:
I honestly cannot understand her attitude here, it looks malicious. It would have been so simple to have him heard while he was in Sweden. After he left Sweden it would also have been very easy to have him questioned by telephone, video link or at an embassy.
Sundberg-Weitman is cross examined by Montgomery and a translator is brought in to assist her to understand Montgomery’s questions. Sundberg-Weitman is questioned on whether the EAW is proportional and she answers that she does not believe it is, however she concedes that a Swedish District court and an Appeal Court have held that it was proportional.
Tweets from the court indicate that the former judge does not seem to have a very high opinion of the Swedish justice system: the “rule of law” has been “decaying” since the mid 1970s.
Sundberg-Weitman is cross examined on her evidence in chief namely that Swedish prosecutor’s actions were “malicious”.
Robertson re-examines Sundberg-Weitman and refers to some English-language press releases from the Swedish prosecutor on the Assange matter and asks “Is this normal?” She answers “No.” To the question was Ny was communicating with the press during the investigation period Sundberg-Weitman states that she saw Ny on TV.
Sundberg-Weitman’s evidence is completed and the second witness Göran Rudling is sworn. He is a blogger and campaigner on Swedish r*pe laws.
Rudling is questioned (in examination in chief) by Robertson on woman A’s tweets. His evidence is that he contacted police after he observed online that she had erased her tweets from 14 and 15 August, those tweets had indicated that she had been happy with Assange. They were in relation to a “crayfish party.” Woman A had tweeted that she was with “the coolest people in the world”. Rudling states that he is not a supporter of Assange or WikiLeaks.
Rudling continues his evidence in chief and describes the 7 Point Plan (update: for revenge) of woman A posted online in January 2010 and translates those points from Swedish.
Montgomery cross examines and asks him how much of the police file has he read. He answers “100 pages.” She puts to him that what he has seen are statements of witnesses served on Assange’s lawyer. She asks him if he knows why woman A erased the tweets. She puts to Rudling that woman A said she erased the tweets to avoid media attention.
Cross-examination of this witness ends and the hearing is adjourned to 10am tomorrow.
Outside the court the Guardian reports a statement by Julian Assange:
For the past five-and-a-half months we have been in a condition where a black box has been applied to my life. On the outside of that black box has been written the word ‘rape’. That box is now, thanks to an open court process, been opened. I hope over the next day we will see that that box is in fact empty and has nothing to do with the words that are on the outside of it. We have seen that today and I would like to thank my supporters and my lawyers for continuing to help me. A process like this surely lets you understand who your friends are.
Submitted by Peter Kemp on Mon, 02/07/2011 – 23:24