Another jihad against Jack

Today’s news is a big disappointment to me:

Victorian man Jack Thomas will be retried on terror charges after an appeal by his lawyers was dismissed today. The former Melbourne taxi driver, dubbed Jihad Jack, was cleared of terror charges in 2006 but the Victorian Court of Appeal today ordered a retrial following new alleged evidence. The retrial was ordered on charges of accepting money from al-Qaeda and possessing a false Australian passport following interviews Thomas did with the ABC’s Four Corners program. But Thomas’ lawyers argued the prosecution case was relying on a media interview that did not provide fresh evidence and did not warrant Thomas being retried. Today Justices Chris Maxwell, Peter Buchanan and Frank Vincent rejected the appeal and ordered the trial to go ahead.

With a retrial pending, it’s difficult to fully discuss this case (and I guess we won’t be seeing any docudramas any time soon.) The new judgment from the VCA is yet to appear on Austlii and maybe it won’t, given that the other judgments from this case have all been taken down, as has the Four Corners interview. (Subscribers to commercial databases, or visitors to any law library, can, of course, read the relevant judgments in the Victorian Reports. And the less privileged can google. But we must keep up pretences.)

But the Age article reveals the basics. Thomas was tried. The trial was bung. (Why the reasons for this have to be a secret is beyond me, but I’ll leave it at that.) Now he’s being re-tried. There’s nothing unusual about re-trials, but the odd thing here is that the main (and perhaps sole) evidence to be adduced at the re-trial is a Four Corners interview Thomas did that was screened after Thomas’s original trial. So, his new trial will be based exclusively on evidence that wasn’t adduced at the original bung trial.

The question of whether or not Thomas should be re-tried turns, in part, on this statutory provision:

568(2) …[T]he Court of Appeal shall, if it allows an appeal against conviction, quash the conviction and either direct a judgment and verdict of acquittal to be entered or direct a new trial to be had.

There’s a clear test for how this discretion should be exercised, from a unanimous High Court judgment from 1984 (ah the good old days):

The power to grant a new trial is a discretionary one and in deciding whether to exercise it the court which has quashed the conviction must decide whether the interests of justice require a new trial to be had. In so deciding, the court should first consider whether the admissible evidence given at the original trial was sufficiently cogent to justify a conviction, for if it was not it would be wrong by making an order for a new trial to give the prosecution an opportunity to supplement a defective case. In the present case, the admissible evidence given at the trial satisfies this test. Then the court must take into account any circumstances that might render it unjust to the accused to make him stand trial again, remembering however that the public interest in the proper administration of justice must be considered as well as the interests of the individual accused.

It’s obvious that the first test is not met in this case. But the Court of Appeal decided that the High Court’s test doesn’t apply when there’s new ‘fresh’ evidence (fresh in the sense that the prosecution didn’t and couldn’t know about it. Apparently, the AFP and the Cth DPP doesn’t know anything about who alleged terrorists are speaking with. I feel so safe. [EDIT: No, it turns out ASIO did know, but apparently that wasn’t enough to make it ‘fresh’. Eh, why bother with a ‘fresh’ requirement anyway?) And they also decided that any unfairness to Thomas from the sequence of events (including the fact that the error in Thomas’s original trial was only detected after the interview was broadcast, which is hardly Thomas’s fault) was outweighed by the burning need to prosecute Thomas for the brand spanking new offence of receiving funds from terrorists with its oh-so-appropriate twenty-five year maximum penalty. These appeal judges are warriors for justice.

Now I’m curious about a lot of things about this case, including whether or not the Court of Appeal (which was so bold in its original appeal judgment) was affected by the media storm that followed it – including personal attacks on President Maxwell, who was part of the bench on all the subsequent backtracks – and also the question of whether the new evidence, fresh or otherwise, is admissible given the law on admissions (such as it is.) But what I’m really really curious about is whether the Charter has played any role in today’s appeal.Thomas’s re-trial was originally ordered on 20 December 2006, just 11 days before the commencement of the Charter. But his actual trial is set for this year, after the Charter has fully commenced. Surely there’s a pretty damn strong argument that this Charter right:

26 A person must not be tried… more than once for an offence in respect of which he or she has already been finally convicted or acquitted in accordance with law.

could alter how s568 was re-interpreted by the Court of Appeal back in late 2006. Yes, I know that Thomas technically wasn’t finally acquitted in accordance with law. But it’s well accepted that such processes aren’t determined exclusively by local procedures or nomenclature but instead must be determined according to autonomous international meanings. The question is whether those international standards can stomach a re-trial exclusively based on new evidence.

One unfortunate thing to note is that any reliance on the Charter by Thomas will be barred by the Charter’s most poorly conceived provision, at least if it’s read according to its natural meaning:

49(2) This Charter does not affect any proceedings commenced or concluded before the commencement of Part 2.

It’s hard to think of a clearer instance of the unfairness of Charter s49(2) than its application to this trial, where – despite his charging way back in 2004 – all the evidence to be adduced at his new trial in 2008 or 2009 will date from 2006 and will be the result of an order just 11 days before the commencement of Part 2. What possible interest is Charter s.49(2) serving here? Anyway,  I have an article coming out in next month’s LIJ that suggests a way to overcome this problem which would be directly relevant to Thomas. Stay tuned.

Another unfortunate thing is that Lex Lasry, Thomas’s lawyer at his original appeal, foreswore any reliance on the principles of double jeopardy. Beats me why. But since then, Lasry has been elevated to the bench and the Charter is upon us.

A third unfortunate thing is that this issue will obviously have to be resolved by the High Court, though the Court’s recent practice is opposed to resolving these things before a trial. Alas, the High Court of today is quite different to the High Court of 1984 when the test for new trials that the Court of Appeal brushed aside was unanimously declared.

A final unfortunate thing?: still no judgment up on Austlii. And, if no judgment emerges – presumably because of fear of contempt – then the Court of Appeal’s new reasoning (and, indeed, the precise arguments that were before it today) won’t be known until after Thomas’s trial. All in a good cause, I’m sure, but it sure shields the Court of Appeal from scrutiny. Anyway, hopefully the judgment will appear shortly, in which case you’ll see my analysis here soon after. [EDIT: Woo hoo. There’s a summary up now, but no judgment yet. The summary hilariously refers to the defendant as T. Now, that’s keeping up appearances. Or is T meant to stand for terrorist? I’m so confused…]

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