by Lee, M
They stopped being collegial in their responses and, in proper legal terms, emailed a reply that was in essence, ‘You can go to hell’. It also contained a number of insulting allegations about my competence as a lawyer (not the done thing in my line of work) and legal threats. I forwarded it to Marcus and he sent it on to Julie at work. A few hours later I received another letter from Thomsons. It was heartbreaking. It detailed a call one of the Thomsons lawyers had received from Julie, who was so desperate about their aggressive response she had phoned them in great distress, saying, ‘You’re killing me, you’re hurting people.’ They wrote to say, ‘Please ensure your client does not contact our firm.’ I called Julie and tried to reassure her that she hadn’t harmed anything by making this call. It was a very emotional day. I was extremely concerned about Julie’s health.
JULIE
It’s true, I called them. John had forwarded us their response to our demands that they do the right thing and when I read the letter I could not believe that the lawyers had stooped to the level of threats. They had no understanding of the damage Sunland and David Brown had done to us. I called one of the lawyers who co-signed the letter. I knew all the contacts were supposed to be made through John, but I was absolutely desperate, there’s no other word for it. I thought maybe if I rang and they knew the misery they were causing, and the toll this was taking on us, maybe they would change their approach. But of course they didn’t. It was an awful, awful day.
JOHN SNEDDON
Marcus and I decided we had no choice other than to keep pressing forward. On 2 February we sent another open letter, a reply to Thomsons’ reply, designed to maintain the pressure. It said, in part:
Three years ago, our client was arrested and, after nine months’ of imprisonment, was eventually released on bail after enduring seven months’ imprisonment without charge. We have previously informed you in writing on an open basis that for the last three years he has been unable to work and Marcus and Julie Lee have had to sell every asset they own in order to survive. We have previously informed you that they are completely impecunious and we represent them on a pro bono basis. When consideration is given to the fact that the prosecution of Marcus Lee is based in large part upon the statements made by David Brown and the Eames memorandum Mr Brown provided to the authorities, it is difficult for our clients to not view your threats to pursue indemnity costs against them as breathtakingly ironic.
Marcus Lee will never pursue ‘unjustified and improper [legal] proceedings’. However, having endured nine months in a foreign jail, the loss of his father, stepfather and grandmother as well as every asset he owns, we respectfully suggest that your client’s threat to pursue indemnity costs against him is the least of his present concerns . . . For so long as Sunland and David Brown fail or refuse to assist our client, there is a genuine risk Marcus Lee will be the victim of a gross miscarriage of justice. We invite your clients to reconsider their position.
I got a response to the effect that from their perspective, the line of communication was at an end. We weren’t going to accept that, so I wrote another letter and then entered a period of without prejudice/confidential discussions that I cannot discuss or reveal. Ian Altschwager from Foreign Correspondent would ring from time to time, just to check in. The next time he called I was able to discuss my open letters — only the open ones — which detailed what David Brown had said and what had really happened. Ian called Ron Eames and said to Ron, ‘Why aren’t you going to withdraw the allegations you’ve made against Marcus Lee?’ Not long after that, on Tuesday 12 April, I received Sunland’s famous ‘exculpatory letter’, as they described it.
The letter was sent as part of the confidential channel of communication, which means that even now I cannot reveal its contents. I had to undertake that it would not be given to the media and would only be used for the defence. I said to my wife that night, ‘I’ll frame this, I’m going to put this on my wall.’ But to this day I can’t, because of my undertaking not to show it to anyone. That is despite the fact that several journalists have told me Sunland gave them copies of it in early 2014. However, a Dubai-based journalist for The National newspaper, who eventually ferreted out a copy through the court system, wrote a story on the public record in which she described it: ‘The three-page letter . . . contained 13 points made by David Brown . . . saying that [Marcus] was not involved in a 2007 deal involving the Dubai Waterfront project. The Sunland parties and Brown have no claim against [Marcus], it said.’
MARCUS
Our defence submission — the huge compilation of all the evidence proving my innocence — was all ready for its due date for lodgement three days later, on 15 April. All the other court submissions had closed, and after nearly three years of court hearings this was the last step before the judgement was due to be delivered on 17 June.
I was always apprehensive when I checked my phone and emails in the morning, wondering what might have happened in connection with the case back in Australia overnight, Dubai time, or what other threats we would have to fend off. This Tuesday there were a bunch of missed calls from John, which made me even more nervous as I fired up my email. I had to read the email John had sent two or three times to make sure I understood: yes, he really was saying Sunland had sent him a letter saying they had no claim against me.
Obviously we had to try to include it in the defence submission, but there were a lot of hoops to jump through. While I organised for it to be translated into Arabic at my end, John was madly rushing around, going through the Dubai court’s official authentication rigmarole at the Australian end. First he had to get an original copy off Sunland’s lawyers, then he had to get it to a notary public to get it notarised, then to the Brisbane DFAT office, where it was authenticated. Then he had to put it in a courier bag to the UAE Consulate in Canberra, from where it would be sent on to Dubai. We all kept our fingers crossed nothing would delay the delivery.
When we showed it to Mr Ali he said, ‘Why did it take so long when they knew what they’d said was incorrect?’ That was an excellent question. However, he also pointed out that what they had actually provided was a letter from one Australian law firm to another. It wasn’t addressed directly to the Dubai prosecutor or judge and therefore they more than likely won’t take any notice of it. He was right. We included it in our defence submission but to make sure it wasn’t missed, one of the staff from the Australian consulate in Dubai personally took a copy to the main judge and handed it to him in his chambers. He said, ‘Marcus has lawyers so I cannot take it from you, you may even be trying to harm him.’ It was too little, way too late.
JULIE
We’d been told the judgement would be handed down on 17 June, then a few days beforehand we found out it wouldn’t happen until July because the date set was a public holiday. The tension was excruciating. I felt like I had a lead-weight constantly pressing on my chest. As well as the possibilities that Marcus might be found either guilty or innocent of the charges he faced, we thought it was also possible that he might be found not guilty of those charges but guilty of a lesser charge as a way of justifying the nine months he’d spent in prison. I prepared for the worst.
On 15 July 2012 we set out for court for the thirty-third time since Marcus had been charged. Before we left, Indrani oversaw a ceremony that was supposed to bring us a just decision. She brought in a tray with a statue of Buddha and a burning candle on it. Marcus had to lift it overhead while saying his prayers and wishes and I had to do the same.
Mr Ali had told us that if a bailed defendant is found guilty and is in the courtroom that day, they are taken straight to the cells to be transferred to the jail. An appeal could be lodged and the person might be released later that day. We understood what he meant: Marcus should not attend the court. So he dropped me at the courts and he drove to Karen’s office to pace anxiously until he heard from me. Karen and her mum, Mary, arrived at the courts just before 9 a.m. and we went in. After so long waiting, everything rested on the nex
t few minutes.
But no, this was Dubai. Unbelievably, instead of making a ruling, the judge sent the case back to the prosecutor because, as Mohammed Al Zari, one of Mr Ali’s lawyers said, ‘the case didn’t match the charges’. Karen took me back to Marcus and we sat in her office trying to understand if this was a good or very bad development.
MARCUS
A week later we were called into the prosecutor’s office to receive the news: almost four years into the case we were charged again. We met with Mr Ali to go through the new charges. He said we were ‘back to square one’. The charges had also been beefed up so that the loss Sunland was supposed to have suffered was no longer the AED44 million it had willingly paid to Prudentia, but now inexplicably AED140 million. There would now be also a new panel of judges, who could choose either to use the documents and existing court transcripts or to start everything again from scratch. Either way, nothing at all would happen for three months until September, when the summer break and Ramadan had passed. There was still one more huge kick in the guts. It was, Ali said, 50:50 as to whether the new judges would choose to extend my bail or not.
Somehow we picked ourselves back up and got through the next day and the next. Julie worked, as she had to, and I worried and paced and pointlessly strategised. Pointlessly, because nothing we could do would make any difference.
September finally arrived and to my profound relief bail was extended. But the monthly hearings continued in the same shapeless, seemingly futile, manner. Mr Ali pushed for only new witnesses to be accepted and for transcripts to be used for those who had already been heard, while Matt Joyce’s lawyer tried to recall David Brown and add Soheil Abedian and Jeff Austin, Nakheel’s former head of planning, thereby delaying the case. The judge allowed this, but they were all safely overseas and failed to show for the next two monthly hearings. When one of the State Security officers who had conducted the original interrogations over three years earlier did turn up he told the judge he couldn’t remember the case. The judge said to him in response, ‘You have to say something, you can’t just say you can’t remember’ at which he simply shrugged his shoulders and said, ‘It’s as per my statement’ and that was it. Another minutes-long court hearing was over.
JULIE
Every day, like Marcus, I’d wake to the emails and messages from Australia. There was always something rotten happening, someone trying to intimidate us. Then every work day, around 8.30 a.m. Marcus would drive me to work at OSN, as Showtime was now called. During the day there would inevitably be something to deal with in connection to the case, on top of my workload. After 6 p.m., Marcus would collect me and make the crazy drive along Sheikh Zayed Road home at 120 km/h. I dreaded these drives. Marcus would unload all the bitterness of his day while I was still trying to deal with a full day’s worth of workplace issues and think through what I needed to do the next day. I often thought it would be easier if it would all just end. Accidents on that road were so very common.
ROSEMARY ADAMS
Julie rang me around this time. She was crying and saying that it was just too hard and had gone on too long. She didn’t think that they were going to survive. She asked me to do something, anything to help them. She had never sounded as bad as this.
Sunland was the problem and since Soheil Abedian had an honorary professorship in Business Ethics at Griffith University, I got in touch with the Dean of the School of Business, Lorelle Frazer, and made an appointment to see her and ask for the university’s support in getting Abedian to do the right thing. Julie and Marcus had both graduated from Griffith University and I hoped that might carry some weight.
I took copies of the relevant evidence to prove that Marcus was innocent. Lorelle appeared to be sympathetic and understood how desperate the case was, in fact she was nearly in tears by the end of our meeting. She promised to put it forward to the Dean and see what she could do. But my request was refused. Lorelle emailed me to say, ‘Thanks for taking the time to explain the situation with Mr Marcus Lee. As promised, I discussed the issue with the Pro-Vice Chancellor (Business), Professor Michael Powell. Professor Powell sought advice from the University and, unfortunately, the University does not believe it should become involved in the case.’
Then, on 26 November, after a story ran about the case in the Weekend Australian magazine that painted Sunland in a less than positive light, Stuart Robert, the MP for the seat of Fadden, which covers the Gold Coast, made a speech in Federal Parliament. ‘As with every story, there are two sides,’ he said. ‘I want to ensure that a local Gold Coast business, Sunland, with 30 years of experience as a solid Australian corporate citizen, is not tarnished by a media that has chosen to tell only half the story.’
After detailing charges against Matt Joyce, Robert said:
Marcus Lee, 43, was also arrested in 2009 on similar charges, despite Sunland having belatedly admitted this year that some of its claims against him, which formed the basis of his prosecution, were wrong. The facts are that Mr Lee has been charged by the Dubai authorities because of his role in facilitating the transaction. The Dubai authorities assert that Lee deliberately undervalued the land in question in order to deliver a larger premium to Reed and Joyce. Lee’s valuation provided a basis for Joyce to reduce the price. Sunland had no knowledge that Reed and Joyce knew one another until after Joyce was arrested. Sunland has made no comment on claims against Lee in Dubai. Sunland did correct minor facts — telephone numbers and dates — relating to Lee’s dealings with Sunland, but those facts are not the basis of the Dubai prosecutor’s claim against Lee. The most damning evidence is a Dubai audit report of 2009 — never tested in Australia — that states: Lee deliberately presented misleading and inaccurate information and omitted some data and studies which were necessary to determine the sale price . . . This is from page 5 of a 2009 government of Dubai Financial Audit Department report.
I decided to contact Robert and try to arrange a meeting to tell him the facts and try to get him to persuade Sunland to do the right thing. I emailed him on 3 December, respectfully explaining what I wanted to see him about. The following day he replied, ‘Happy to meet with you. I’d be a little cautious though in branding my comments misstatements. I’m a little over the Melbourne establishment and their friends attacking me and then attacking Sunland because they got caught out. I had no interest in this issue, until your friends launched a massive Twitter campaign against me before I had made a single comment. If they had done in Australia what they did in Dubai I wonder how much strife they would be in? Helen from my office will be in touch to find some time to get together. But if you’re coming to convince me I’m wrong after what your Melbourne establishment mates launched against me, you are severely mistaken.’
I emailed back to accept the meeting offer and noted, ‘Marcus and Julie Lee have no connection with the Melbourne establishment and were unaware of any Twitter campaign against you’.
On 10 December I met Stuart Robert at his electorate office. He told me how upstanding Sunland were. I told him that what he had been saying about Marcus in Parliament was wrong and I had the proof with me. We went through the evidence. In a matter of minutes he had changed his mind about Marcus’s guilt.
After some general discussion about aspects of the case, Robert offered to contact Soheil Abedian and ask him to provide an appropriately signed letter directly to the Dubai prosecutor correcting the false claims that David Brown had made in his statement to the Dubai authorities. He said he would put it to Abedian that it was in his best interests to do so as it was time for Sunland to start disassociating themselves from this matter and this would be a good face-saving way to do it.
I emailed him after the meeting thanking him for his time, saying, ‘I truly appreciate your generosity in agreeing to talk to Soheil Abedian about sending a letter from Sunland to the Dubai prosecutor.’
A week later when I hadn’t heard anything I sent a follow-up email. Robert phoned me four days later, on 21 December, and said, ‘I sp
oke with Soheil about Marcus and he said that he will give Marcus two letters that reflect what his lawyer’s letter said. He will give one from Sunland and one from David Brown and this can be arranged as early as tomorrow. But to do this Soheil is the kind of man that needs something from Marcus in exchange.
‘He needs Marcus to write a stat dec [statutory declaration] about what Marcus knows about the deal. Soheil accepts that Marcus is innocent and had no knowledge of the deal at the time when it was happening but since that time he believes that Marcus has gained some information about what happened and that is the information he wants in the stat dec. Soheil will arrange for the letters to be given to me and an exchange can take place. I am prepared to help and am happy for the exchange to take place in my office. So, all that is needed is for Marcus to do a stat dec.’
On 2 January I emailed Robert confirming our conversations and the deal that Sunland were offering. Stuart Robert emailed back to say he would get back to me. I chased it up with him on 17 January and again on 3 February and 12 February. He replied that day, saying in part, ‘I’ve spoken again to Soheil and he would still like the statutory declaration please. Can I also sound a quick note personally that I think time is now running out for Marcus to have a bargaining chip as it were . . . over to you and Marcus on what you’d like to do.’