Tampering with Evidence

ABSENT JUSTICE  Tampering with evidence.

When I phoned AUSTEL’s Cliff Mathieson, a public servant at the government communications regulatory department, to talk about this hang-up fault on 26 April 1994, Mr Mathieson suggested he and I conduct a series of tests on the phone line. He planned for me to hang up and count aloud, from one to 10, while he listened. This first test proved he could hear me count right up to 10. He suggested we try it again and count even further this time. It was still the same situation: he could hear me right through the range as I counted. Then he suggested I switch the phone on that line with a phone connected to another. I did this, and we repeated the counting test with the same results. It was apparent to both that the fault was not in the phone but somewhere in the Telstra network. Mr Mathieson suggested that, as I was in arbitration then, I should bring this fault to the attention of Peter Gamble, Telstra’s chief engineer. Lindsay White, a Telstra whistleblower, named Peter Gamble in a Senate estimates committee hearing as the man who said he and Telstra had to stop the first COT five claimants (including me), at all cost, from proving our claims (see Senate Hansard ERC&A 36, Front Page Part One File No/23 dated 24 June 1997).

Unaware of these orders to stop us from five COT cases (at all costs), I switched the phones back to their original lines and phoned Mr Gamble, but did not tell him Mr Mathieson and I had already tested two phones on the 055 267230 lines. Mr Gamble and I then performed similar tests on the 055 267230 line. Mr Gamble said he would arrange for someone to collect the phone for testing the following day. FOI K00941, dated 26 March 1994, show someone (name redacted) believed this lock-up fault was caused by a problem in the RCM exchange at Cape Bridgewater see Tampering With Evidence File No 1-A to 1-C. Document K00940, dated the day the tests were performed with Mr Mathieson and Mr Gamble, suggests that Mr Gamble believed the problem was caused by heat in the exchange see (File No-B) where document folio R37911 states:

“This T200 is an EXICOM and the other T200  is an ALCATEL, we thought that this may be a design ‘fault???’ with the EXICOM so Ross tried a new EXICOM from his car and it worked perfectly, that is, released the line immediately on hanging up. We decided to leave the new EXICOM and the old phone was marked and tagged…” (see File No 1-C).

On 27 April 1994, Telstra collected my so-called faulty EXICOM TF200 telephone. Documents I later acquired under FOI show that Telstra knew this telephone fault often occurred in moisture-prone areas like Cape Bridgewater. They also knew that the local exchange suffered from heat problems. When I received my copy of Telstra’s 12 December 1994 defence of my government-endorsed arbitration process, I found it included a 29-page report titled TF200. This document reported that Telstra’s laboratory testing showed that the lock-up problem with my service lines was due to my actual TF200 phone.

Six years after my arbitration, which was supposed to have fixed this problem, I discovered that this lock-up issue was not fixed, even though Telstra claimed to have investigated it on 27 April 1994. At this time, they disconnected the EXICOM TF200 phone from the fax machine. They replaced it with another EXICOM TF200, which remained connected to the fax machine until August 2001, when Telstra and I tested the 55 267230 lines again and proved it was still locking up.

Photographs included in Telstra’s report show the outside of the phone was very dirty. According to the laboratory technicians, the inside was wet and sticky when they opened the phone. Analysis of the substance showed that it was beer, and the conclusion was that beer caused the hookswitch to lock up. The obvious implication here was that my drinking habits were the cause of all my phone problems. The laboratory technicians appeared not to know that the government communications regulatory department and I had already tested two phones on that line and still found the same fault.

Telstra FOI folio D01026/27 (Tampering With Evidence File No 2) confirms Telstra knew there were lock-up problems in moisture-prone areas affecting the EXICOM T200s manufactured after week seven of 1993. This document confirms that one of the known lock-up side effects of this problem was that, while the line was in locked-up mode, the line remained open so one party could hear the room noise of the locked-up party after the call was supposedly terminated. Document D01026 confirms that instead of destroying these faulty EXICOM TF200 phones, Telstra allowed their technical staff to re-deploy some 45,000 phones back into service in areas where local technicians believed moisture was not a problem.

During my government-endorsed arbitration, I received Telstra document FOI folio number R37911 under FOI. This document shows that on the day after retrieving the TF200, Ross Anderson, a Telstra technician from Portland, tested the TF200 EXICOM fax phone at least 18 times without it once displaying this lock-up fault. Telstra FOI document folio K00942/3 Tampering With Evidence File No/1-C
suggests the lock-up problem could have been related to heat, moisture, or both. There is no mention in this document suggesting that alcohol spillage might have caused this problem.

After Mr Anderson completed his testing on 27 April, the phone took nine days to reach Telstra’s laboratory. It arrived on 6 May, and laboratory testing did not commence for another four days. Ray Bell, the author of the TF 200 report, was adamant at point 1.3, under the heading Initial Inspection, that:

“The suspect TF200 telephone when received was found to be very dirty around the keypad with what appeared to be a sticky substance, possibly coffee.” (See Tampering With Evidence File No 3)

A second photo I received under FOI is a photo taken from the front of the same TF200 phone, confirming a note I placed on the phone was quite clean when it was received at Telstra. See Open Letter File No/37  exhibits 3, 4, 5 and 6.

This report raises several questions. When the phone left my office, it was quite clean. Why did it arrive at the laboratory in such a filthy state? How did the beer get inside the phone? Who would have a reason to pour beer into the phone and why? If the addition of beer was not deliberate, how did it get inside the phone? The main aim of Telstra’s submitted report, used as evidence, was to prove Telstra’s service was not at fault.

As soon as I read this beer-in-the-phone report, I requested the arbitrator, asking for a copy of all the laboratory technicians' handwritten notes so he could see how Telstra had arrived at their conclusion. I had appointed my forensic document researcher to look over the documents when I received them, and he provided me with his CV credentials and signed a confidentiality agreement stating he would not disclose his findings to anyone outside of the arbitration procedure. Although I passed all this information on to the arbitrator, the only response I received from the arbitrator and Telstra was a duplicate copy of the report I had already received as part of Telstra’s defence.

On 28 November 1995, six months after my arbitration ended, I received Telstra’s TF200 EXICOM report. This report confirms Telstra carried out two separate investigations of my EXICOM TF200 telephone, two weeks apart and the second test report, dated between 24 and 26 May 1994, proved that the first one, the report provided to the arbitrator, was not an accurate account of the testing process at all, but a total fabrication. Photos and graphs by Telstra laboratory staff proved wet beer introduced into the TF200 phone dried out entirely in 48 hours. As mentioned above, Telstra collected my phone from my business on 27 April 1994, but it was not tested until 10 May – a gap of 14 days. Various pages (see Tampering With Evidence File No/5) confirm that, even though Telstra knew its second investigation proved the first arbitration report, dated between 10 and 12 May 1994, was more than fundamentally flawed, it still submitted the first flawed report to the arbitrator as Telstra’s true findings.

The marked Telstra FOI documents folio A64535 to A64562 (see Tampering With Evidence File No/5), are clear evidence that Telstra did do two separate TF200 tests on my collected phone two weeks apart. FOI folio A64535 confirms with this handwritten Telstra laboratory file note, dated 26 May 1994, that when wet beer was poured into a TF200 phone, the wet substance dried up within 48 hours. The air vents within the phone itself allowed for the beer to escape. In other words, how could my TF200, collected on 27 April 1994, have been wet inside the phone on 10 May 1994 when it was tested at Telstra’s laboratories?

Another disturbing side to this tapering with arbitration evidence by Telstra is that I volunteered for the Cape Bridgewater Country Fire Authority (CFA) for many years before this tampering occurred. The following chapters show that during my arbitration Telstra twisted the reason I could not be present for the testing of my TF200 telephone at my premises on a scheduled meeting on the morning of 27 April 1994. Telstra only reported in their file notes (later submitted to the arbitrator) that I refused to allow Telstra to test the phones because I was tired. There was no mention in these file notes that I advised the fault response unit that I had been fighting an out-of-control fire for 14 hours or that my sore eyes made it impossible to observe such testing by Telstra. I fought the fire the previous evening from 6 pm to 9 am the following morning.

It is clear from our Tampering With Evidence page that not only did Telstra set out to discredit me by implying I was just too tired to have my TF200 phone tested, but after Telstra removed the phone, it was tampered with before it arrived at Telstra’s Melbourne laboratories: someone from Telstra poured beer into the phone. In its arbitration defence report, Telstra then alleged that sticky beer was the cause of the phone’s ongoing lock-up problems, not the Cape Bridgewater network. This wicked deed and the threats I received from Telstra during my arbitration are a testament that my claims should have been investigated years ago. So, even though I carried out my civic duties as an Australian citizen, over and beyond, by supplying vital evidence to the AFP and fighting out-of-control fires, I was still penalised on both occasions during my arbitration.

The other twist to this part of my story is, how could I have spilt beer into my telephone, as Telstra's arbitration defence documents state, when I had been fighting an out-of-control fire? I certainly would not have been driving the CFA truck or assisting my fire buddies had I been drinking beer. Reading this part of my story will give the reader some idea of the dreadful conduct that we COT Cases had to put up with from Telstra as we battled for a reliable phone service. 

When I provided the arbitrator and the arbitration Special Counsel with a statutory declaration prepared by Paul Westwood s forensic documents specialist, who advised he would test the collected TF200 and inspect Telstra's laboratory working notes to see how Telstra came up with their findings regarding my drinking habits had caused my phone faults and not the EXICOM TF200 both the arbitrator and arbitration special counsel refused my request to have Telstra's arbitration defence investigated on the grounds fraud had played a significant part in the preparation of the TF200 report. 

Concealing A Crime

This sort of tampering with evidence, after a claimant has provided it to an arbitration process, including (again, in my case) changing that evidence into a different format, must be one of the worst crimes a defendant (in this case, the Telstra corporation) could have committed against an Australian citizen.  So why, when evidence of this tampering was provided – twenty years ago to the Telecommunications Industry Ombudsman (John Pinnock), the Chair of the TIO’s Counsel (The Hon Tony Staley), the Chair of the Telstra Board (David Hoare), and Telstra’s then-CEO (Ziggy Switkowski AO), was that evidence not investigated immediately?

After all, it was Telstra’s own internal investigations that uncovered this unlawful conduct during my arbitration, but that didn’t stop Ziggy Switkowski from accepting an Order of Australia award three years ago (i.e., 16 years later, in 2014) even though he has sat on this crime for more than 18 years now. The following nonfeasance link >  

suggests Zingy Switkowski and the new Telstra CEO Andrew Penn and chair John Mullins have a moral and legal obligation to investigate the criminal misconduct committed by previous employees during my litigation with Telstra

At point 3, in the conclusion of this bogus report prepared and signed off by Telstra’s Manager Technical Liaison Customer Equipment Division, he noted:

“The cause of the fault condition has been confirmed by Telecom Research to be due to the presence of a foreign substance possibly beer inside the telephone case which directly caused the incorrect operation of the telephone membrane hookswitch . When the hookswitch was removed from the foreign substance, the telephone operated correctly. 

“The state of the telephone when received suggested that the telephone was not well cared for by the customer”

“If the customer had reported the liquid spillage when it occurred the telephone would have been replaced under standard maintenance procedures with no resultant loss of business”.

Why didn’t the Telstra board do anything about that evidence when they discovered it had been tampered with?  Why didn’t they immediately remove that evidence from their arbitration defence of my claims as soon as their internal investigation unit had clarified that Telstra had indeed acted outside of the law as exhibits Open Letter File Nos/36, 37 and File No/38 show? This raised a most important question:  why has the Telstra Board not advised the current Australian government that Telstra has both a legal and a moral obligation to rectify these wrongs as soon as possible? 

Perhaps the most important aspect of the exposure of this fraud is that the findings from Telstra’s internal investigation into this matter also show that, although the phone was collected from my premises on 27 April 1994, it was not tested until 10 May 1994, a sixteen-day time-lapse that appears to have been the reason for this internal review of their arbitration defence on this matter. The findings of that arbitration review describe how the second series of tests were carried out between 24 and 26 May 1994. Those tests proved that wet beer (and wet Coca-Cola) that had been deliberately poured into my telephone had all dried out within forty-eight hours, which contradicts the so-called ‘evidence’ first provided by Telstra)?

Just as importantly, why is it that the current Telstra board had also done nothing about these proven claims since they know that it was Telstra’s own findings that confirmed that my claims were correct, including my claim that the telephone that Telstra collected from my premises was perfectly clean when they took it away? So the ‘dirty, greasy substance’ was later found to be ‘all over the phone’, and the ‘sticky substance’ found inside the phone could only have been put there by Telstra employees after it left my premises but before it arrived at Telstra’s laboratories?

TF200 EXICOM falsified 'beer in the telephone' Report 

Over two decades ago, evidence of tampering was presented to the Telecommunications Industry Ombudsman, John Pinnock, the TIO council chair, The Hon. Tony Staley, Telstra's board chair, David Hoare, and CEO Ziggy Switkowski AO. However, they did not investigate it despite Telstra's internal investigations that uncovered the unlawful conduct during your arbitration. It's surprising that Ziggy Switkowski accepted an Order of Australia award in 2014 despite sitting on this crime for over 20 years. The current Telstra CEO and chair, along with Ziggy Switkowski, have a moral and legal obligation to investigate the criminal misconduct committed by previous Telstra employees during your litigation. It's important to learn why Telstra's executives allowed unscrupulous criminals, corrupt politicians, and lawyers who control the legal profession in Australia to take charge of the COT case arbitrations. The actions of these lawbreakers are shameful, hideous, and treacherous.

The conclusion of Telstra’s original arbitration TF200 defence report, prepared and signed off by Telstra, states:

“The cause of the fault condition has been confirmed by Telecom Research to be due to the presence of a foreign substance possibly beer inside the telephone case which directly caused the incorrect operation of the telephone membrane hookswitch. When the hookswitch was removed from the foreign substance, the telephone operated correctly.

“The state of the telephone when received suggested that the telephone was not well cared for by the customer.

“If the customer had reported the liquid spillage when it occurred the telephone would have been replaced under standard maintenance procedures with no resultant loss of business.”

A drop of silicon

Telstra eventually sold two containers of T200s as scrap to Liberty USA Pty Ltd, which moisture-proofed the phones with silicon and resold them to Poland. John Tuczynski, managing director of Liberty Australia Pty Ltd, who was also an ex-Polish national, like Mr Switkowski, secured the lucrative deal to sell these faulty TF200s.

Mr Tuczynski’s method, using silicon on TF200 hookswitches to moisture-proof the phones, was a technique Telstra did not know. This could have saved the corporation money and EXICOM customers years of heartache. Remember, the Australian government and its citizens owned the Telstra Corporation at this time, but instead of looking for a solution to fix the EXICOM problem, Telstra decided it was easier and cheaper to tamper with the TF200s and blame the customer for any faults.

Telstra’s Ted Benjamin admitted, on 26 September 1997 to a Senate estimates hearing, that, as a TIO council member, he attended meetings where COT cases’ arbitrations were discussed. He also admitted that at no time did he advise these meetings of his conflict of interest, i.e., he never advised he was a co-in-charge of Telstra’s arbitration defence of the COT claims. The Senate committee hearing condemned both John Pinnock and Mr Benjamin for allowing the defendants access to how the arbitrations were progressing. During the period when three senior Telstra executives were present at monthly TIO board and council meetings, the COT cases were not represented at all. In August and September 1995, Mr Benjamin also admitted to John Pinnock that 50 per cent of my May 1994 requested arbitration FOI documents were NOT released to me until 23 May 1995, after the arbitrator, Dr Hughes, brought down his award.

The material released on 23 May 1995, 12 months after I requested it, proved Telstra knowingly used the impracticable Cape Bridgewater Bell Canada tests as arbitration defence documents. Again, as happened during the arbitration process, no one investigated why Telstra was allowed to withhold this vital information from me.

In my letter of 9 August 1995 to Mr Benjamin, I noted:

“I am now asking Telstra to supply this TF200 Telephone Report under the FOI Act. I am forwarding an additional $30.00 for this request . . . . 

“It appears by your own admission, in your letter dated 3 August 1995, that Telstra has only supplied various FOI documents in accordance with Telstra’s own views regarding each particular application.

“I find this late admission by Telstra of FOI documents most alarming, especially when I have been in a Settlement/Arbitration Procedure for some 15 months and documents have not been provided in accordance with the FOI Act . . . . 

“I demand that Telstra provide all the documentation associated with this TF200 Report so as to allow me the chance to defend those allegations contained within the Report. I await your response with regard to this matter. . . .

“I hope that the result on my request for the supply of the original documentation related to the TF200 Report receives a different response from you than that received to my request for this ELMI data” (Open letter File No/42)

I did eventually receive a copy of the second TF200 report, which shows that tests were done on 24 and 26 May 1994, and which therefore proves that the first tests, on 10 and 12 May 1994, were fabricated (see also Open letter File No/42), which I received on 28 November 1995 (six months after my arbitration was concluded). Similar ELMI testing data was not released to me by the Australian Communications and Media Authority (ACMA), under several FOI requests I made between 2001 and 2008.

Arbitrator File No/45 shows that on 30 March 1995 – 11 months before the arbitrator’s letters to Mr James – the arbitrator’s resource unit wrote to the TIO outlining the progress of my arbitration. The timeline indicates that I informed them about receiving my discovery documents through the agreed FOI process. However, Telstra submitted its defence of the claim only after my claim was finalized. I could not provide evidence of ongoing telephone problems and requested the arbitration to obtain extracts from the log books of the Portland and Cape Bridgewater Telstra telephone exchange, detailing all the faults during my arbitration period up to the conclusion date when the arbitrator issued the award. Unfortunately, Dr Hughes denied this request on May 5, 1995, suggesting a biased process favouring Telstra.

It is important to note that John Wynack, Director of Investigations for the Commonwealth Ombudsman’s Office, and Tony Morgan, a National Chief Adjuster for GAB Robins (Australia), are both aware that most of the 24,000 documents provided were not relevant to my Cape Bridgewater business. These documents lacked identification or schedules to explain their origin. They were associated with the Fortitude Valley and Lutwyche Ericsson AXE telephone exchanges in Brisbane, which are over 1,200 kilometres away from my business's telephone exchange. The delivery of these irrelevant documents seems to have been intentionally orchestrated to cause distress.

More than 16,800 FOI documents were meaningless without a schedule detailing their relevance. I had only 13 days to address Telstra’s defence using documents I could not interpret.

When I advised Warwick Smith, the Telecommunications Industry Ombudsman (and administrator to my arbitration) about this terrible situation, being left with only 13 days to decipher what documents belonged to me and which belonged to the two other COT cases, he said to contact Dr Hughes, the arbitrator. However, the arbitrator’s office informed me that Dr Hughes had taken his usual Christmas break, which meant the 13 days left for me to answer Telstra’s 12 December 1994 defence would be over by the time Dr Hughes returned from leave. Warwick Smith’s response to this was: do the best you can.

Tampering With Evidence File No 1-A to 1-C
Tampering With Evidence File No 2
Tampering With Evidence File No 3
Tampering With Evidence File No 4
Tampering With Evidence File No 5
Tampering With Evidence File No 6
Tampering With Evidence File No 7
Tampering With Evidence File No 8-A to 8-C
Tampering With Evidence File No 9
Tampering With Evidence File No/10
Tampering With Evidence File 11-A to 11-B
Tampering With Evidence File No/12-A to 12-E
"...I believe that it should be pointed out to Coopers & Lybrand that unless this report is withdrawn and revised their future in relation to Telecom may be irreparably damaged."
Tampering With Evidence File No 13
Tampering With Evidence File No 14
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