R v Thomas
Encyclopedia
R v Thomas was an Australian court case decided in the Victorian Court of Appeal
on 18 August 2006. It concerned the conviction in February 2006 of Joseph Thomas
(nicknamed "Jihad Jack" in the media) on terrorism
-related charges, specifically receiving funds from Al Qaeda. The appeal revolved around the admissibility
of a confession
Thomas made during an interrogation in Pakistan
in 2003. The court found that the evidence
, which was crucial to Thomas' convictions, was inadmissible because it had not been given voluntarily. The court accordingly quashed his convictions, but after further hearings ordered on 20 December 2006 that he be retried rather than acquitted
.
by land. For the next three months, he was alleged to have trained at the Al Farouq training camp
near the city of Kandahar
, before travelling to Kabul
in July 2001. Over the next eighteen months or so, Thomas stayed in various Al Qaeda safe houses, and is alleged to have made contact with several Al Qaeda officials.
On 4 January 2003, Thomas was apprehended by Pakistani immigration officials at an airport in the city of Karachi
, and taken into custody. Thomas had with him items including an Australian-issue passport
, an airline ticket for travel to Indonesia
, and about $
3,800 in cash
. The passport, issued on 19 May 1993, had been tampered with, for the intention of concealing the details of Thomas' movements after his departure from Australia in 2001. He was blindfolded, and driven to an unknown location, where he was questioned for about two hours by two Pakistani men and two Americans.
He was questioned several times over the next few days, before being taken to another location, which Thomas described as "some sort of mansion house", where he was kept in a small cell for the next two weeks and questioned on a number of occasions. Initially he maintained a fabricated story, that he was a student who had been travelling in Pakistan, but he later revealed the truth, that he had been in contact with Al Qaeda in Afghanistan. He said that he was motivated to change his story by several incidents, including one in which one of the Pakistani interrogators pulled on the collar of his hood, so as to strangle him, and incidents in which interrogators said that he would be electrocuted
and executed. According to Thomas, he was then told that his cooperation was welcome and that he would be returned home.
After the two weeks, Thomas was blindfolded and shackled, and flown to Islamabad
, where he remained in custody. There he was visited by an Australian consular
representative, who later gave evidence that Thomas did not appear to have been maltreated, or denied food or water. However, the representative did testify that while Thomas was on the phone to his parents in Australia, he told them "I'm not going to Cuba
" (referring to the Guantanamo Bay detainment camp
), to which a Pakistani official replied, "No, that's not correct."
Between 25 January and 29 January, Thomas was interviewed four times by members of the Australian Federal Police
(AFP) and by members of the Australian Security Intelligence Organisation
(ASIO), accompanied by Pakistani officials. During one of these interviews, a Pakistani official said to Thomas "we told you that you have to prove it... that you are not a terrorist... you have to prove it that you are an innocent man and why you are sitting here." Thomas was then transferred again, this time to the city of Lahore
, where he was kept for another three weeks, and interrogated by Pakistani officials and an American official referred to as "Joe". This man suggested that Thomas return to Afghanistan with a recording device, to obtain information on Al Qaeda figures, a suggestion Thomas rejected because he feared he would be killed. Joe also threatened Thomas that he would be sent to Afghanistan where he would be tortured by having his testicle
s twisted, and implied that agents would be sent to Australia to rape Thomas' wife. Thomas was then returned to Islamabad.
On 8 March, Thomas was interviewed again by two members of the AFP, who had made special arrangements with the Pakistani Directorate for Inter-Services Intelligence
(ISI) to have the interview conducted pursuant to Australian law, particularly the requirements of the federal Evidence Act 1995 and Crimes Act 1914
, so that admissible evidence could be gathered. ISI allowed the interview, but with a very limited timeframe, and did not allow Thomas to have access to legal advice. During this interview, Thomas made several self-incriminatory statements, which were key to his later convictions and the admissibility of which was the central issue in the appeal. In the statements, Thomas admitted that he had tampered with his passport to conceal the amount of time he had been in Pakistan, and also admitted that the money and airline ticket had been given to him by Tawfiq bin Attash
, a high ranking Al Qaeda lieutenant involved with the 1998 United States embassy bombings
and the USS Cole bombing
. On 10 March, the AFP wrote again to the ISI, reiterating the requirements of the Australian legislation, and saying that "the admissibility of [the record of interview] in Australian Courts has been seriously compromised."
On 6 June 2003, Thomas was released from Pakistani custody, at which point he was deported
to Australia. He spent nearly a year and a half subsequently living with his family in the Melbourne
suburb of Werribee
, Victoria
, before he was arrested by the AFP on 18 November 2004 and charged with several federal offences, including one count of possessing a false passport (an offence under the Passports Act 1938), and one count of receiving funds from a terrorist organisation and two counts of providing resources to a terrorist organisation (offences under the Criminal Code Act 1995).
. On 26 February, was found guilty of the passport charge and the receiving funds charge (although he was acquitted of the providing funds charges). He was later sentenced on 31 March, to a total of five years' imprisonment with a two year non-parole
period.
With respect to the admissibility of the record of the 8 March interview, the trial judge (Justice Cummins) had instructed the jury
that:
In his assessment, the judge said that the AFP interviewers had conducted the interview "fairly and properly", and had not attempted to use Thomas' lack of legal representation to their favour.
The trial judge also concluded that Thomas had been properly informed of his right to silence, and had not been induced by the AFP officers to participate in the interview by offer of repatriation or any other reward. Ultimately he decided that Thomas had participated voluntarily in the interview, and that in the circumstances, Thomas' lack of legal advice should not make the record of the interview inadmissible.
QC
, on behalf of Thomas, argued that the trial judge had made several errors of law
:
Several other matters were also raised, relating to particular parts of the evidence (specifically, relating to the witness testimony of Yahya Goba
, one of the Buffalo Six
), but these matters had little bearing on the final outcome of the case, and were dealt with only briefly by the court. The central argument raised was that, with regard to all the circumstances, Thomas did not actually have a practical choice whether to speak or not.
The other main argument was an alternative argument, that if the court decided that the admissions were in fact voluntary, they should not have been admitted anyway on the basis that to do so would be unfair, because of factors including Thomas' lack of access to legal advice even where he had a right to obtain it, his vulnerability in the circumstances, and "the contamination of the record of interview by the previous joint team interrogations, and their potential or actual use as levers to remind the applicant of his earlier answers."
Two other parties sought to be involved in the case as amici curiae
, Amnesty International
(represented by former Federal Court
Justice Ron Merkel), and the Victorian human rights advocacy group the Human Rights Law Resource Centre. However both their applications were rejected, because they could not assist the court in a way in which they could not otherwise be assisted, and their submissions were largely subsumed into submissions made by Lasry in any event.
Owen Dixon
, followed unanimously by the High Court of Australia
in later decisions, in which he said that:
The court also noted a recent decision of its own, in which it had emphasised that the principles of evidence strike a balance between the rights of the individual and the rights of the state, and that:
The court considered that Thomas had been regularly informed by all those who had interrogated him that the degree to which he cooperated would determine what happened to him, and that given their position as authority figures, Thomas would have readily perceived that they had the ability to change his situation; indeed, none of the interviewers had done anything to dispel the idea that they would be able to help Thomas. The court also pointed out that even if actions such as showing Thomas photographs of his family and letters from them could not be said to be deliberately improper, as the trial judge seemed to indicate would be necessary to characterise them as inducements, there was no way that they could be interpreted by someone in Thomas' position, other than as indications that if he cooperated he would be reunited with his family. Particularly, after Thomas expressed happiness at seeing the photographs, one of the interviewers took them away, saying "[we] might give you another look at that later", comments which were "calculated, if not intended, to remind the applicant that he was dependent on his captors and interviewers for favours."
The court rejected the opinion of the trial judge that Thomas viewed the 8 March interview differently to the other interviews, which were concerned only with intelligence gathering. Rather, they emphasised how similar the interviews all were: "same place, same AFP personnel, same topics." They considered that the inducements offered in the previous interviews, and indeed the threats and intimidation in previous interviews by the American "Joe" and others, all "remained operative, their power undiminished" in 8 March interview.
Lastly, the court rejected the argument that the admissions were voluntary because Thomas knew he had a right to silence, because he did not have any practical opportunity to exercise the right. The court concluded that the trial judge had made an error by separating the interview from the circumstances, and that in the circumstances Thomas had no real choice whether to answer questions: "Even the threat 'Confess or be tortured' can be said to involve a choice, and a chance that torture may not be applied. But it could never be regarded as a free choice in the relevant sense."
Ultimately, the court found that the admissions were not given voluntarily, and so were not admissible.
The court also referred to a judgment of Justice McHugh
of the High Court, in which he said that although there is some discretion as to whether evidence obtained where an interviewee does not have access to legal advice should be admitted or not, judges are not free to make the decision "by reference to general notions of fairness."
The court concluded that the trial judge had erred in not exercising his discretion to bar the evidence from being admitted, although it was not necessary to decide the point.
sought to make a submission as to whether there should be a directed acquittal or whether there should be a retrial. The court heard brief arguments, then set aside the issue for a further hearing, to be held after the parties had made written submissions. The prosecution sought to introduce as evidence statements Thomas made in an interview with the Australian Broadcasting Corporation
for the Four Corners television program in February 2006.
The parties made submissions, and there was an oral hearing on 1 December 2006. All parties accepted that the relevant test to be applied was the test set out in the High Court
case of DPP (Nauru) v Fowler, which sets out two preconditions for a retrial; the first requiring that the admissible evidence presented at trial be "sufficiently cogent" to support a conviction, the second requiring consideration of circumstances that would make it unjust to put the accused through a retrial. However this case had an unusual feature, namely that the evidence that the prosecution would seek to use at a retrial had not been available at the original trial, through no fault of the prosecution, since although the interviews had been taken at that time they had not been published. Ultimately all parties agreed that all evidence, not just evidence submitted in the original trial, should be considered when applying the first part of the Fowler test.
The court decided that it would be reasonably possible for a jury to convict Thomas based on the available evidence, so it then considered whether there were factors which would make a retrial unjust. Thomas' lawyer Lex Lasry argued that the delay in Thomas' prosecution (he was not arrested until seventeen months after he returned to Australia) and the extensive media coverage of the case meant it was unlikely Thomas would get a fair trial, and that a retrial would be an undue hardship on Thomas given that he has spent long periods in custody, mostly in solitary confinement
, without conviction, which has led to him being diagnosed with depression
and post-traumatic stress disorder
. The court was of the opinion that a fair trial was not impossible in these circumstances, and although the other factors were considered, the court ultimately decided that the circumstances did not preclude a retrial.
As such, the court ordered on 20 December 2006 that Thomas be retried. Thomas was then released on bail
, with requirements to report three times a week and not to leave Australia. Thomas and his family were in court to hear the verdict, his mother crying and Thomas looking "more like a startled rabbit [than a terrorist]." Thomas' retrial is, , scheduled for 2008.
. Former President of the Victorial Council of Civil Liberties, Robert Richter QC, said that the decision was important "because the pressure is to say, 'Well, do anything' if the case is said to be a terrorist case. That is unacceptable, the Court of Appeal has said it's unacceptable." University of Melbourne
evidence law professor Andrew Palmer said that "I think that it was a little bit naive to think that they could interview somebody and gather admissible evidence... when that person was being held in conditions which were possibly oppressive... I don't really know what they were thinking."
The decision has also attracted criticism. Conservative columnist Piers Akerman
said that the decision "has handed al-Qaeda, Jemaah Islamiyah
and all other terrorist organisations a major victory and confirmed the adage the law is an ass." Akerman emphasised that information about Thomas (including the Four Corners interview) was already available in the public domain
for the populace to make its own judgment, despite "judicial commands to juries to ignore material [which] may have some minor relevance in their petty fiefdoms."
Conservative Melbourne lawyer Peter Faris
QC called for an appeal to the High Court or changes to the laws of evidence legislation, saying that "this case is bad law", alternatively suggesting that Thomas be handed over to Pakistan, since he stated that the evidence from the interview would in his opinion be admissible in a Pakistani court. Faris also argued that there was an issue of apparent bias arising with respect to the presiding judge in the appeal, Maxwell
P, which could afford grounds for invalidating the appeal.. It should be noted however that Pakistani law of evidence dose not permit a confession made to a police officer to be admitted (Article 38 Qanun-e-Shahdat Order (Law of Evidence)= http://pakistanconstitution-law.org/category/11-the-qanun-e-shahadat-order-1984/ Faris argued that the apparent bias arose because of Maxwell's activities before his appointment to the Supreme Court of Victoria
, including his membership of organisations including Amnesty International
, his past presidency of Liberty Victoria, his past involvement with human rights law and advocacy against counter-terrorism laws. Faris drew a comparison with the House of Lords
case which considered the extradition of Augusto Pinochet, which was overturned on appeal because of Lord Hoffman
's failure to disclose his links to Amnesty International.
Because of the ongoing proceedings relating to whether Thomas should be acquitted or retried, neither the Government of Australia
nor the Opposition
commented immediately after the case, although Treasurer
Peter Costello
later said that anti-terrorism legislation did not need to be strengthened in the wake of the case, and Opposition foreign affairs spokesperson Kevin Rudd
said that "What is plain from the events of yesterday is that the Government has bungled – and bungled badly – the prosecution of this case."
Gerard Henderson
said that the case "highlights an emerging division within democracies" between civil libertarians on the one hand and "a democracy defence lobby, which maintains that radical Islamism
poses a real and present danger to Western nations" on the other.
Supreme Court of Victoria
The Supreme Court of Victoria is the superior court for the State of Victoria, Australia. It was founded in 1852, and is a superior court of common law and equity, with unlimited jurisdiction within the state...
on 18 August 2006. It concerned the conviction in February 2006 of Joseph Thomas
Joseph Thomas
Joseph "Jihad Jack" Terrence Thoppil Thomas is an Australian citizen whose conviction for receiving funds from Al-Qaeda was overturned on appeal...
(nicknamed "Jihad Jack" in the media) on terrorism
Terrorism
Terrorism is the systematic use of terror, especially as a means of coercion. In the international community, however, terrorism has no universally agreed, legally binding, criminal law definition...
-related charges, specifically receiving funds from Al Qaeda. The appeal revolved around the admissibility
Admissible evidence
Admissible evidence, in a court of law, is any testimonial, documentary, or tangible evidence that may be introduced to a factfinder—usually a judge or jury—in order to establish or to bolster a point put forth by a party to the proceeding...
of a confession
Confession
This article is for the religious practice of confessing one's sins.Confession is the acknowledgment of sin or wrongs...
Thomas made during an interrogation in Pakistan
Pakistan
Pakistan , officially the Islamic Republic of Pakistan is a sovereign state in South Asia. It has a coastline along the Arabian Sea and the Gulf of Oman in the south and is bordered by Afghanistan and Iran in the west, India in the east and China in the far northeast. In the north, Tajikistan...
in 2003. The court found that the evidence
Evidence (law)
The law of evidence encompasses the rules and legal principles that govern the proof of facts in a legal proceeding. These rules determine what evidence can be considered by the trier of fact in reaching its decision and, sometimes, the weight that may be given to that evidence...
, which was crucial to Thomas' convictions, was inadmissible because it had not been given voluntarily. The court accordingly quashed his convictions, but after further hearings ordered on 20 December 2006 that he be retried rather than acquitted
Acquittal
In the common law tradition, an acquittal formally certifies the accused is free from the charge of an offense, as far as the criminal law is concerned. This is so even where the prosecution is abandoned nolle prosequi...
.
Background to the case
Joseph Thomas is an Australian citizen. On 23 March 2001 he left Australia and travelled by air to Pakistan, crossing into AfghanistanAfghanistan
Afghanistan , officially the Islamic Republic of Afghanistan, is a landlocked country located in the centre of Asia, forming South Asia, Central Asia and the Middle East. With a population of about 29 million, it has an area of , making it the 42nd most populous and 41st largest nation in the world...
by land. For the next three months, he was alleged to have trained at the Al Farouq training camp
Al Farouq training camp
The Al Farouq training camp, also known as "the airport camp", was an alleged Al-Qaeda training camp near Kandahar, Afghanistan. Camp attendees received small-arms training, map-reading, orientation, explosives training, and other training....
near the city of Kandahar
Kandahar
Kandahar is the second largest city in Afghanistan, with a population of about 512,200 as of 2011. It is the capital of Kandahar Province, located in the south of the country at about 1,005 m above sea level...
, before travelling to Kabul
Kabul
Kabul , spelt Caubul in some classic literatures, is the capital and largest city of Afghanistan. It is also the capital of the Kabul Province, located in the eastern section of Afghanistan...
in July 2001. Over the next eighteen months or so, Thomas stayed in various Al Qaeda safe houses, and is alleged to have made contact with several Al Qaeda officials.
On 4 January 2003, Thomas was apprehended by Pakistani immigration officials at an airport in the city of Karachi
Karachi
Karachi is the largest city, main seaport and the main financial centre of Pakistan, as well as the capital of the province of Sindh. The city has an estimated population of 13 to 15 million, while the total metropolitan area has a population of over 18 million...
, and taken into custody. Thomas had with him items including an Australian-issue passport
Passport
A passport is a document, issued by a national government, which certifies, for the purpose of international travel, the identity and nationality of its holder. The elements of identity are name, date of birth, sex, and place of birth....
, an airline ticket for travel to Indonesia
Indonesia
Indonesia , officially the Republic of Indonesia , is a country in Southeast Asia and Oceania. Indonesia is an archipelago comprising approximately 13,000 islands. It has 33 provinces with over 238 million people, and is the world's fourth most populous country. Indonesia is a republic, with an...
, and about $
United States dollar
The United States dollar , also referred to as the American dollar, is the official currency of the United States of America. It is divided into 100 smaller units called cents or pennies....
3,800 in cash
Cash
In common language cash refers to money in the physical form of currency, such as banknotes and coins.In bookkeeping and finance, cash refers to current assets comprising currency or currency equivalents that can be accessed immediately or near-immediately...
. The passport, issued on 19 May 1993, had been tampered with, for the intention of concealing the details of Thomas' movements after his departure from Australia in 2001. He was blindfolded, and driven to an unknown location, where he was questioned for about two hours by two Pakistani men and two Americans.
He was questioned several times over the next few days, before being taken to another location, which Thomas described as "some sort of mansion house", where he was kept in a small cell for the next two weeks and questioned on a number of occasions. Initially he maintained a fabricated story, that he was a student who had been travelling in Pakistan, but he later revealed the truth, that he had been in contact with Al Qaeda in Afghanistan. He said that he was motivated to change his story by several incidents, including one in which one of the Pakistani interrogators pulled on the collar of his hood, so as to strangle him, and incidents in which interrogators said that he would be electrocuted
Electric shock
Electric Shock of a body with any source of electricity that causes a sufficient current through the skin, muscles or hair. Typically, the expression is used to denote an unwanted exposure to electricity, hence the effects are considered undesirable....
and executed. According to Thomas, he was then told that his cooperation was welcome and that he would be returned home.
After the two weeks, Thomas was blindfolded and shackled, and flown to Islamabad
Islamabad
Islamabad is the capital of Pakistan and the tenth largest city in the country. Located within the Islamabad Capital Territory , the population of the city has grown from 100,000 in 1951 to 1.7 million in 2011...
, where he remained in custody. There he was visited by an Australian consular
Consul (representative)
The political title Consul is used for the official representatives of the government of one state in the territory of another, normally acting to assist and protect the citizens of the consul's own country, and to facilitate trade and friendship between the peoples of the two countries...
representative, who later gave evidence that Thomas did not appear to have been maltreated, or denied food or water. However, the representative did testify that while Thomas was on the phone to his parents in Australia, he told them "I'm not going to Cuba
Cuba
The Republic of Cuba is an island nation in the Caribbean. The nation of Cuba consists of the main island of Cuba, the Isla de la Juventud, and several archipelagos. Havana is the largest city in Cuba and the country's capital. Santiago de Cuba is the second largest city...
" (referring to the Guantanamo Bay detainment camp
Guantanamo Bay detainment camp
The Guantanamo Bay detention camp is a detainment and interrogation facility of the United States located within Guantanamo Bay Naval Base, Cuba. The facility was established in 2002 by the Bush Administration to hold detainees from the war in Afghanistan and later Iraq...
), to which a Pakistani official replied, "No, that's not correct."
Between 25 January and 29 January, Thomas was interviewed four times by members of the Australian Federal Police
Australian Federal Police
The Australian Federal Police is the federal police agency of the Commonwealth of Australia. Although the AFP was created by the amalgamation in 1979 of three Commonwealth law enforcement agencies, it traces its history from Commonwealth law enforcement agencies dating back to the federation of...
(AFP) and by members of the Australian Security Intelligence Organisation
Australian Security Intelligence Organisation
The Australian Security Intelligence Organisation is Australia's national security service, which is responsible for the protection of the country and its citizens from espionage, sabotage, acts of foreign interference, politically-motivated violence, attacks on the Australian defence system, and...
(ASIO), accompanied by Pakistani officials. During one of these interviews, a Pakistani official said to Thomas "we told you that you have to prove it... that you are not a terrorist... you have to prove it that you are an innocent man and why you are sitting here." Thomas was then transferred again, this time to the city of Lahore
Lahore
Lahore is the capital of the Pakistani province of Punjab and the second largest city in the country. With a rich and fabulous history dating back to over a thousand years ago, Lahore is no doubt Pakistan's cultural capital. One of the most densely populated cities in the world, Lahore remains a...
, where he was kept for another three weeks, and interrogated by Pakistani officials and an American official referred to as "Joe". This man suggested that Thomas return to Afghanistan with a recording device, to obtain information on Al Qaeda figures, a suggestion Thomas rejected because he feared he would be killed. Joe also threatened Thomas that he would be sent to Afghanistan where he would be tortured by having his testicle
Testicle
The testicle is the male gonad in animals. Like the ovaries to which they are homologous, testes are components of both the reproductive system and the endocrine system...
s twisted, and implied that agents would be sent to Australia to rape Thomas' wife. Thomas was then returned to Islamabad.
On 8 March, Thomas was interviewed again by two members of the AFP, who had made special arrangements with the Pakistani Directorate for Inter-Services Intelligence
Inter-Services Intelligence
The Directorate for Inter-Services Intelligence , is Pakistan's premier intelligence agency, responsible for providing critical national security intelligence assessment to the Government of Pakistan...
(ISI) to have the interview conducted pursuant to Australian law, particularly the requirements of the federal Evidence Act 1995 and Crimes Act 1914
Crimes Act 1914
The Crimes Act 1914 is a piece of Federal legislation in Australia. Pursuant to the Australian Constitution it prevails in any conflict with State laws dealing with the subject of crime....
, so that admissible evidence could be gathered. ISI allowed the interview, but with a very limited timeframe, and did not allow Thomas to have access to legal advice. During this interview, Thomas made several self-incriminatory statements, which were key to his later convictions and the admissibility of which was the central issue in the appeal. In the statements, Thomas admitted that he had tampered with his passport to conceal the amount of time he had been in Pakistan, and also admitted that the money and airline ticket had been given to him by Tawfiq bin Attash
Tawfiq bin Attash
Walid Muhammad Salih bin Roshayed bin Attash is a Yemeni prisoner held in extrajudicial detention at the United States' Guantanamo Bay detention camps....
, a high ranking Al Qaeda lieutenant involved with the 1998 United States embassy bombings
1998 United States embassy bombings
The 1998 United States embassy bombings were a series of attacks that occurred on August 7, 1998, in which hundreds of people were killed in simultaneous truck bomb explosions at the United States embassies in the East African capitals of Dar es Salaam, Tanzania and Nairobi, Kenya. The date of the...
and the USS Cole bombing
USS Cole bombing
The USS Cole Bombing, or the USS Cole Incident, was a suicide attack against the United States Navy destroyer on October 12, 2000 while it was harbored and refueled in the Yemeni port of Aden. Seventeen American sailors were killed, and 39 were injured...
. On 10 March, the AFP wrote again to the ISI, reiterating the requirements of the Australian legislation, and saying that "the admissibility of [the record of interview] in Australian Courts has been seriously compromised."
On 6 June 2003, Thomas was released from Pakistani custody, at which point he was deported
Deportation
Deportation means the expulsion of a person or group of people from a place or country. Today it often refers to the expulsion of foreign nationals whereas the expulsion of nationals is called banishment, exile, or penal transportation...
to Australia. He spent nearly a year and a half subsequently living with his family in the Melbourne
Melbourne
Melbourne is the capital and most populous city in the state of Victoria, and the second most populous city in Australia. The Melbourne City Centre is the hub of the greater metropolitan area and the Census statistical division—of which "Melbourne" is the common name. As of June 2009, the greater...
suburb of Werribee
Werribee, Victoria
Werribee is a city in Melbourne, Australia, 32 km south-west from Melbourne's central business district. Its Local Government Area is the City of Wyndham. At the 2006 Census, Werribee had a population of 36,641. Statistically, Werribee is considered part of Greater Melbourne.Werribee is...
, Victoria
Victoria (Australia)
Victoria is the second most populous state in Australia. Geographically the smallest mainland state, Victoria is bordered by New South Wales, South Australia, and Tasmania on Boundary Islet to the north, west and south respectively....
, before he was arrested by the AFP on 18 November 2004 and charged with several federal offences, including one count of possessing a false passport (an offence under the Passports Act 1938), and one count of receiving funds from a terrorist organisation and two counts of providing resources to a terrorist organisation (offences under the Criminal Code Act 1995).
Trial
Thomas was tried in the Supreme Court of VictoriaSupreme Court of Victoria
The Supreme Court of Victoria is the superior court for the State of Victoria, Australia. It was founded in 1852, and is a superior court of common law and equity, with unlimited jurisdiction within the state...
. On 26 February, was found guilty of the passport charge and the receiving funds charge (although he was acquitted of the providing funds charges). He was later sentenced on 31 March, to a total of five years' imprisonment with a two year non-parole
Parole
Parole may have different meanings depending on the field and judiciary system. All of the meanings originated from the French parole . Following its use in late-resurrected Anglo-French chivalric practice, the term became associated with the release of prisoners based on prisoners giving their...
period.
With respect to the admissibility of the record of the 8 March interview, the trial judge (Justice Cummins) had instructed the jury
Jury
A jury is a sworn body of people convened to render an impartial verdict officially submitted to them by a court, or to set a penalty or judgment. Modern juries tend to be found in courts to ascertain the guilt, or lack thereof, in a crime. In Anglophone jurisdictions, the verdict may be guilty,...
that:
"Normally, failure to avail an interviewee of [the right to legal access] would be fatal to the admission of a subsequent interview... However, the requirement is not absolute, nor can it be... it is not hollow to say that the suspect had the right to choose whether to proceed without that legal access. He had the right to choose not to answer, and wait for the legal bus which might never arrive, or to answer, in the legitimate aim of ultimate return to Australia. To say such a choice is no choice at all is revisionism."
In his assessment, the judge said that the AFP interviewers had conducted the interview "fairly and properly", and had not attempted to use Thomas' lack of legal representation to their favour.
The trial judge also concluded that Thomas had been properly informed of his right to silence, and had not been induced by the AFP officers to participate in the interview by offer of repatriation or any other reward. Ultimately he decided that Thomas had participated voluntarily in the interview, and that in the circumstances, Thomas' lack of legal advice should not make the record of the interview inadmissible.
Arguments
Lex LasryLex Lasry
Lex Lasry QC is a prominent Australian lawyer and a judge in the Supreme Court of Victoria.Lasry graduated from Haileybury College, Melbourne then Monash University in Melbourne. He was admitted to practise law in Victoria in 1973 and was appointed Queens Counsel in 1990. Lasry is the former chair...
QC
Queen's Counsel
Queen's Counsel , known as King's Counsel during the reign of a male sovereign, are lawyers appointed by letters patent to be one of Her [or His] Majesty's Counsel learned in the law...
, on behalf of Thomas, argued that the trial judge had made several errors of law
Question of law
In jurisprudence, a question of law is a question which must be answered by applying relevant legal principles, by an interpretation of the law. Such a question is distinct from a question of fact, which must be answered by reference to facts and evidence, and inferences arising from those facts...
:
- the trial judge should have found that the 8 March interview was not voluntary and hence inadmissible, and
- even if it had been voluntary, the trial judge should have excluded it anyway on grounds of fairness or public policyPublic policyPublic policy as government action is generally the principled guide to action taken by the administrative or executive branches of the state with regard to a class of issues in a manner consistent with law and institutional customs. In general, the foundation is the pertinent national and...
.
Several other matters were also raised, relating to particular parts of the evidence (specifically, relating to the witness testimony of Yahya Goba
Yahya Goba
Yahya Goba is a Yemeni-American who grew up in the suburbs of Buffalo, New York. In 2002, he was arrested and charged as part of the War on Terror together with the other members of the "Lackawanna Six", based on the fact the group of friends had attended an Afghan training camp together years...
, one of the Buffalo Six
Buffalo Six
The Buffalo Six is a group of six Yemeni-American childhood friends who were convicted of providing material support to al-Qaeda, based on the fact they had attended an Al Qaeda training camp in Afghanistan together in the Spring of 2001.They are:*Mukhtar Al-Bakri,*Sahim Alwan,*Faysal...
), but these matters had little bearing on the final outcome of the case, and were dealt with only briefly by the court. The central argument raised was that, with regard to all the circumstances, Thomas did not actually have a practical choice whether to speak or not.
The other main argument was an alternative argument, that if the court decided that the admissions were in fact voluntary, they should not have been admitted anyway on the basis that to do so would be unfair, because of factors including Thomas' lack of access to legal advice even where he had a right to obtain it, his vulnerability in the circumstances, and "the contamination of the record of interview by the previous joint team interrogations, and their potential or actual use as levers to remind the applicant of his earlier answers."
Two other parties sought to be involved in the case as amici curiae
Amicus curiae
An amicus curiae is someone, not a party to a case, who volunteers to offer information to assist a court in deciding a matter before it...
, Amnesty International
Amnesty International
Amnesty International is an international non-governmental organisation whose stated mission is "to conduct research and generate action to prevent and end grave abuses of human rights, and to demand justice for those whose rights have been violated."Following a publication of Peter Benenson's...
(represented by former Federal Court
Federal Court of Australia
The Federal Court of Australia is an Australian superior court of record which has jurisdiction to deal with most civil disputes governed by federal law , along with some summary criminal matters. Cases are heard at first instance by single Judges...
Justice Ron Merkel), and the Victorian human rights advocacy group the Human Rights Law Resource Centre. However both their applications were rejected, because they could not assist the court in a way in which they could not otherwise be assisted, and their submissions were largely subsumed into submissions made by Lasry in any event.
Judgment
In a unanimous decision, the three judges decided that the appeal should be allowed (more specifically, that leave to appeal should be granted and the appeal heard and allowed instanter - at once), on the basis that the 8 March 2003 interview was not voluntary and so was inadmissible, and by admitting it the trial judge had made an error of law resulting in a miscarriage of justice.Voluntariness of the interview
The court quoted from a 1948 judgment of future Chief Justice of AustraliaChief Justice of Australia
The Chief Justice of Australia is the informal title for the presiding justice of the High Court of Australia and the highest-ranking judicial officer in the Commonwealth of Australia...
Owen Dixon
Owen Dixon
Sir Owen Dixon, OM, GCMG, KC Australian judge and diplomat, was the sixth Chief Justice of Australia. A justice of the High Court for thirty-five years, Dixon was one of the leading jurists in the English-speaking world and is widely regarded as Australia's greatest ever jurist.-Education:Dixon...
, followed unanimously by the High Court of Australia
High Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
in later decisions, in which he said that:
"At common law a confessional statement made out of court by an accused person may not be admitted in evidence against him upon his trial for the crime to which it relates unless it is shown to have been voluntarily made. This means substantially that it has been made in the exercise of his free choice. If he speaks because he is overborne, his confessional statement cannot be received in evidence and it does not matter by what means he has been overborne. If his statement is the result of duressDuressIn jurisprudence, duress or coercion refers to a situation whereby a person performs an act as a result of violence, threat or other pressure against the person. Black's Law Dictionary defines duress as "any unlawful threat or coercion used... to induce another to act [or not act] in a manner...
, intimidationIntimidationIntimidation is intentional behavior "which would cause a person of ordinary sensibilities" fear of injury or harm. It's not necessary to prove that the behavior was so violent as to cause terror or that the victim was actually frightened.Criminal threatening is the crime of intentionally or...
, persistent importunity, or sustained or undue insistence or pressure, it cannot be voluntary. But it is also a definite rule of the common law that a confessional statement cannot be voluntary if it is preceded by an inducement held out by a person in authority and the inducement has not been removed before the statement is made..."
The court also noted a recent decision of its own, in which it had emphasised that the principles of evidence strike a balance between the rights of the individual and the rights of the state, and that:
"On the one hand, there is an obvious need to bring to account those who have committed serious offences if the objectives of the criminal justice system are to be achieved and societal values vindicated, but, on the other, it cannot be forgotten that those values incorporate the rights of the individual and, in part define the nature of the relationship between the citizen and the community in which he or she resides."
The court considered that Thomas had been regularly informed by all those who had interrogated him that the degree to which he cooperated would determine what happened to him, and that given their position as authority figures, Thomas would have readily perceived that they had the ability to change his situation; indeed, none of the interviewers had done anything to dispel the idea that they would be able to help Thomas. The court also pointed out that even if actions such as showing Thomas photographs of his family and letters from them could not be said to be deliberately improper, as the trial judge seemed to indicate would be necessary to characterise them as inducements, there was no way that they could be interpreted by someone in Thomas' position, other than as indications that if he cooperated he would be reunited with his family. Particularly, after Thomas expressed happiness at seeing the photographs, one of the interviewers took them away, saying "[we] might give you another look at that later", comments which were "calculated, if not intended, to remind the applicant that he was dependent on his captors and interviewers for favours."
The court rejected the opinion of the trial judge that Thomas viewed the 8 March interview differently to the other interviews, which were concerned only with intelligence gathering. Rather, they emphasised how similar the interviews all were: "same place, same AFP personnel, same topics." They considered that the inducements offered in the previous interviews, and indeed the threats and intimidation in previous interviews by the American "Joe" and others, all "remained operative, their power undiminished" in 8 March interview.
Lastly, the court rejected the argument that the admissions were voluntary because Thomas knew he had a right to silence, because he did not have any practical opportunity to exercise the right. The court concluded that the trial judge had made an error by separating the interview from the circumstances, and that in the circumstances Thomas had no real choice whether to answer questions: "Even the threat 'Confess or be tortured' can be said to involve a choice, and a chance that torture may not be applied. But it could never be regarded as a free choice in the relevant sense."
Ultimately, the court found that the admissions were not given voluntarily, and so were not admissible.
Discretion to exclude evidence
Although it was unnecessary to decide the alternative argument, the court addressed it briefly anyway. After considering previous cases on the issue, the court considered whether the Australian investigators acted fairly. They concluded that "only one course [was] properly open to the investigating officials in the light of the position taken by the Pakistani authorities. It was to acknowledge that no formal record of interview could be conducted so long as the applicant was in Pakistan since, as the investigating officials appreciated, any such interview would be unlawful, that is, would be contrary to Australian law."The court also referred to a judgment of Justice McHugh
Michael McHugh
Michael Hudson McHugh, AC, QC is a former justice of the High Court of Australia; the highest court in the Australian court hierarchy.-Judicial Activity:...
of the High Court, in which he said that although there is some discretion as to whether evidence obtained where an interviewee does not have access to legal advice should be admitted or not, judges are not free to make the decision "by reference to general notions of fairness."
The court concluded that the trial judge had erred in not exercising his discretion to bar the evidence from being admitted, although it was not necessary to decide the point.
Consequences
Thomas' original convictions were quashed, however before the final orders were made the Commonwealth Director of Public ProsecutionsDirector of Public Prosecutions
The Director of Public Prosecutions is the officer charged with the prosecution of criminal offences in several criminal jurisdictions around the world...
sought to make a submission as to whether there should be a directed acquittal or whether there should be a retrial. The court heard brief arguments, then set aside the issue for a further hearing, to be held after the parties had made written submissions. The prosecution sought to introduce as evidence statements Thomas made in an interview with the Australian Broadcasting Corporation
Australian Broadcasting Corporation
The Australian Broadcasting Corporation, commonly referred to as "the ABC" , is Australia's national public broadcaster...
for the Four Corners television program in February 2006.
The parties made submissions, and there was an oral hearing on 1 December 2006. All parties accepted that the relevant test to be applied was the test set out in the High Court
High Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
case of DPP (Nauru) v Fowler, which sets out two preconditions for a retrial; the first requiring that the admissible evidence presented at trial be "sufficiently cogent" to support a conviction, the second requiring consideration of circumstances that would make it unjust to put the accused through a retrial. However this case had an unusual feature, namely that the evidence that the prosecution would seek to use at a retrial had not been available at the original trial, through no fault of the prosecution, since although the interviews had been taken at that time they had not been published. Ultimately all parties agreed that all evidence, not just evidence submitted in the original trial, should be considered when applying the first part of the Fowler test.
The court decided that it would be reasonably possible for a jury to convict Thomas based on the available evidence, so it then considered whether there were factors which would make a retrial unjust. Thomas' lawyer Lex Lasry argued that the delay in Thomas' prosecution (he was not arrested until seventeen months after he returned to Australia) and the extensive media coverage of the case meant it was unlikely Thomas would get a fair trial, and that a retrial would be an undue hardship on Thomas given that he has spent long periods in custody, mostly in solitary confinement
Solitary confinement
Solitary confinement is a special form of imprisonment in which a prisoner is isolated from any human contact, though often with the exception of members of prison staff. It is sometimes employed as a form of punishment beyond incarceration for a prisoner, and has been cited as an additional...
, without conviction, which has led to him being diagnosed with depression
Clinical depression
Major depressive disorder is a mental disorder characterized by an all-encompassing low mood accompanied by low self-esteem, and by loss of interest or pleasure in normally enjoyable activities...
and post-traumatic stress disorder
Post-traumatic stress disorder
Posttraumaticstress disorder is a severe anxiety disorder that can develop after exposure to any event that results in psychological trauma. This event may involve the threat of death to oneself or to someone else, or to one's own or someone else's physical, sexual, or psychological integrity,...
. The court was of the opinion that a fair trial was not impossible in these circumstances, and although the other factors were considered, the court ultimately decided that the circumstances did not preclude a retrial.
As such, the court ordered on 20 December 2006 that Thomas be retried. Thomas was then released on bail
Bail
Traditionally, bail is some form of property deposited or pledged to a court to persuade it to release a suspect from jail, on the understanding that the suspect will return for trial or forfeit the bail...
, with requirements to report three times a week and not to leave Australia. Thomas and his family were in court to hear the verdict, his mother crying and Thomas looking "more like a startled rabbit [than a terrorist]." Thomas' retrial is, , scheduled for 2008.
Commentary
The decision was praised by civil libertariansCivil libertarianism
Civil libertarianism is a strain of political thought that supports civil liberties, or who emphasizes the supremacy of individual rights and personal freedoms over and against any kind of authority...
. Former President of the Victorial Council of Civil Liberties, Robert Richter QC, said that the decision was important "because the pressure is to say, 'Well, do anything' if the case is said to be a terrorist case. That is unacceptable, the Court of Appeal has said it's unacceptable." University of Melbourne
University of Melbourne
The University of Melbourne is a public university located in Melbourne, Victoria. Founded in 1853, it is the second oldest university in Australia and the oldest in Victoria...
evidence law professor Andrew Palmer said that "I think that it was a little bit naive to think that they could interview somebody and gather admissible evidence... when that person was being held in conditions which were possibly oppressive... I don't really know what they were thinking."
The decision has also attracted criticism. Conservative columnist Piers Akerman
Piers Akerman
Piers Akerman is a right-wing commentator and columnist for The Daily Telegraph.-Brief biography:Born in Wewak, Papua New Guinea, Piers Akerman was raised in Perth by his parents, John, an Australian Government doctor, and Eve Akerman , a newspaper columnist and reviewer in Western Australia. He...
said that the decision "has handed al-Qaeda, Jemaah Islamiyah
Jemaah Islamiyah
Jemaah Islamiah , is a Southeast Asian militant Islamic organization dedicated to the establishment of a Daulah Islamiyah in Southeast Asia incorporating Indonesia, Malaysia, the southern Philippines, Singapore and Brunei...
and all other terrorist organisations a major victory and confirmed the adage the law is an ass." Akerman emphasised that information about Thomas (including the Four Corners interview) was already available in the public domain
Public domain
Works are in the public domain if the intellectual property rights have expired, if the intellectual property rights are forfeited, or if they are not covered by intellectual property rights at all...
for the populace to make its own judgment, despite "judicial commands to juries to ignore material [which] may have some minor relevance in their petty fiefdoms."
Conservative Melbourne lawyer Peter Faris
Peter Faris
George Peter Faris, QC is a criminal lawyer, media commentator and former radio broadcaster in Melbourne, Australia.He commenced practice as a solicitor in 1963 under the tutelage of the Australian defence lawyer Frank Galbally...
QC called for an appeal to the High Court or changes to the laws of evidence legislation, saying that "this case is bad law", alternatively suggesting that Thomas be handed over to Pakistan, since he stated that the evidence from the interview would in his opinion be admissible in a Pakistani court. Faris also argued that there was an issue of apparent bias arising with respect to the presiding judge in the appeal, Maxwell
Chris Maxwell
Chris Maxwell BA , LLB , BPhil , QC is an Australian jurist.Maxwell has been President of the Victorian Court of Appeal since 16 July 2005, succeeding Justice John Winneke....
P, which could afford grounds for invalidating the appeal.. It should be noted however that Pakistani law of evidence dose not permit a confession made to a police officer to be admitted (Article 38 Qanun-e-Shahdat Order (Law of Evidence)= http://pakistanconstitution-law.org/category/11-the-qanun-e-shahadat-order-1984/ Faris argued that the apparent bias arose because of Maxwell's activities before his appointment to the Supreme Court of Victoria
Supreme Court of Victoria
The Supreme Court of Victoria is the superior court for the State of Victoria, Australia. It was founded in 1852, and is a superior court of common law and equity, with unlimited jurisdiction within the state...
, including his membership of organisations including Amnesty International
Amnesty International
Amnesty International is an international non-governmental organisation whose stated mission is "to conduct research and generate action to prevent and end grave abuses of human rights, and to demand justice for those whose rights have been violated."Following a publication of Peter Benenson's...
, his past presidency of Liberty Victoria, his past involvement with human rights law and advocacy against counter-terrorism laws. Faris drew a comparison with the House of Lords
Judicial functions of the House of Lords
The House of Lords, in addition to having a legislative function, historically also had a judicial function. It functioned as a court of first instance for the trials of peers, for impeachment cases, and as a court of last resort within the United Kingdom. In the latter case the House's...
case which considered the extradition of Augusto Pinochet, which was overturned on appeal because of Lord Hoffman
Leonard Hoffmann, Baron Hoffmann
Leonard Hubert "Lenny" Hoffmann, Baron Hoffmann, PC is a retired senior British judge. He served as a Lord of Appeal in Ordinary from 1995 to 2009...
's failure to disclose his links to Amnesty International.
Because of the ongoing proceedings relating to whether Thomas should be acquitted or retried, neither the Government of Australia
Government of Australia
The Commonwealth of Australia is a federal constitutional monarchy under a parliamentary democracy. The Commonwealth of Australia was formed in 1901 as a result of an agreement among six self-governing British colonies, which became the six states...
nor the Opposition
Opposition (Australia)
Her Majesty's Loyal Opposition in Australia fulfils the same function as the official opposition in other Commonwealth of Nations monarchies. It is seen as the alternative government and the existing administration's main opponent at a general election...
commented immediately after the case, although Treasurer
Treasurer of Australia
The Treasurer of Australia is the minister in the Government of Australia responsible for government expenditure and revenue raising. He is the head of the Department of the Treasury. The Treasurer plays a key role in the economic policy of the government...
Peter Costello
Peter Costello
Peter Howard Costello AC is an Australian politician and lawyer who served as the Treasurer in the Australian government from 1996 to 2007. He is the longest-serving Treasurer in Australian history. Costello was a Member of the Australian House of Representatives from 1990 to 2009, representing...
later said that anti-terrorism legislation did not need to be strengthened in the wake of the case, and Opposition foreign affairs spokesperson Kevin Rudd
Kevin Rudd
Kevin Michael Rudd is an Australian politician who was the 26th Prime Minister of Australia from 2007 to 2010. He has been Minister for Foreign Affairs since 2010...
said that "What is plain from the events of yesterday is that the Government has bungled – and bungled badly – the prosecution of this case."
Gerard Henderson
Gerard Henderson
Gerard Henderson is a conservative Australian newspaper columnist for The Sydney Morning Herald.. He is also Executive Director of the Sydney Institute, a privately funded current affairs forum. His wife Anne Henderson is Deputy Director.-Education:Henderson attended the Jesuit Xavier College in...
said that the case "highlights an emerging division within democracies" between civil libertarians on the one hand and "a democracy defence lobby, which maintains that radical Islamism
Islamism
Islamism also , lit., "Political Islam" is set of ideologies holding that Islam is not only a religion but also a political system. Islamism is a controversial term, and definitions of it sometimes vary...
poses a real and present danger to Western nations" on the other.