The coming judgment

Well, the full judgment in the case of Joseph Terrance Thomas – oops Joseph Terrance T –  isn’t out yet. But the Court of Appeal registry and library – who were very helpful to someone who rang as a member of the public and didn’t have to drop the U-bomb – tell me that the judgment won’t be restricted and so we’ll see it soon. What’s the delay? It needs a looking-over to make sure that it won’t prejudice the coming trial. Let’s imagine the checklist:

a. drama: The Four Corners show that is the main evidence in the coming trial has a quite good dramatisation of the AFP interview in Pakistan.

b. portrayal by actors: ditto

c. salacious behaviour: you mean the bit when a CIA agent said that he’d send someone to rape Thomas’s wife? Am I allowed to mention that?

d. humorous dialogue: My favourite bit of the Four Corners show was where the defendant is asked what he was like as a child. Answer: “A terror”. Now, there’s an admission!

e. music: The defendant was in a rock band – the Frontal Lobotomies or some such – but the Underbelly soundtrack it aint.

f. mixing fact and fiction: Just check out Vincent JA’s insane hypothetical below.

I can see why they’ve summoned the fair trial censors.

Anyway, as the full judgment is on its way, I’ll hold off analysing the summary. But, for those who can’t be bothered looking at the court website, here it is. The big news: it even mentions some human rights!  I pity the fools…

Conviction and appeal

On 26 February 2006, Mr Thomas was convicted by a Supreme Court jury on one count of intentionally receiving funds from a terrorist organisation1 and one count of possessing a falsified Australian passport.2 He was acquitted on two further counts of intentionally providing resources to a terrorist organisation.3 Essential to his conviction on both counts was the admission at his trial of evidence of statements made by him in the course of an interview conducted by two members of the Australian Federal Police in Pakistan on 8 March 2003. Thomas sought leave to appeal against his conviction on the ground (amongst others) that the trial judge ought not to have admitted that evidence. On 18 August 2006, this Court upheld that ground of appeal and ordered that the convictions be quashed.4 On 20 December 2006, the Court directed that Mr Thomas be retried on the two counts of which he was originally convicted. The Court upheld a submission by counsel for the Director of Public Prosecutions that certain statements made by Mr Thomas in an ABC interview, broadcast after his trial had finished, were capable of supporting a conviction on both counts. In making its order for a retrial, the Court of Appeal said that, at the time of Mr Thomas’ trial, the prosecution did not know – and could not have known – about the ABC interview.

This application

Mr Thomas’ legal representatives subsequently became aware that ASIO had known of his contact with the ABC and the proposal for an interview. In seeking to set aside the retrial order, counsel for Mr Thomas argued that, once ASIO knew about the ABC interview, ASIO should have inferred that he was likely to have made statements about the activities overseas on which the charges against him were based. In those circumstances, it was argued, the fact of the interview could, and should, have been communicated by ASIO to the Australian Federal Police, which would in turn have enabled the AFP to investigate the matter with the ABC. Alternatively, it was argued, because ASIO was an agency of the Commonwealth Government and had been actively involved in the prosecution of Mr Thomas, everything which ASIO knew about Mr Thomas should be treated as having been known simultaneously to the AFP and the Director of Public Prosecutions.

The decision

The Court rejected each of these arguments.

“… This was not a joint prosecution. Nor could it have been. ASIO has no power to act as a law enforcement agency and there is nothing in the material before the Court to suggest that it purported to do so in relation to T. Although this is not the conclusion for which T contended, it should reassure the Australian community about ASIO’s adherence to the limits of its statutory charter.”

The Court concluded that ASIO was not authorised by its Act to communicate to the AFP the information in its possession about T’s contact with the ABC journalist.

“The fact that T was speaking to a journalist with a view to being interviewed was itself unremarkable. As counsel for the Director- General argued before the trial judge, it had been ‘apparent since the moment of [T’s] arrest that there was a high level of media interest in him.’ Critically for present purposes, the fact that T was to be – or had been – interviewed was not information which ‘related, or appeared to relate’ to the commission of an indictable offence.5 On the contrary, this activity was, on the face of it, entirely lawful. As Vincent JA pointed out in argument, the corollary of the argument for T was that whenever ASIO became aware of any lengthy conversation between T and any person, whether a journalist or not, ASIO should reasonably have inferred that T was likely to be speaking about his activities abroad, in a manner likely to bear relevantly on the charges against him, and should have tipped off the AFP accordingly. The proposition is offensive to fundamental notions of privacy and freedom of speech, and ignores the express limitations on ASIO’s activities. Those limitations are clearly defined by the ASIO Act, for self-evident public interest reasons. We reject completely the notion that ASIO could be regarded as having authority to advise law enforcement authorities that a person, otherwise of security interest to ASIO, was having apparently lawful conversations with a journalist. The position would, of course, be wholly different if ASIO was aware of conversations which did relate to the commission of a crime – for example, the planning of a terrorist bombing. The present case could hardly have been further removed from that scenario.”

So, given what’s covered in this summary, it looks as if Charterblog is now permitted to reveal that the defendant was actually convicted in his first trial and that the evidence against him consisted of statements made by him to the AFP in Pakistan. It was the inadmissibility of those statements that caused the first trial to go bung. But why were the statements inadmissible? Well, I still don’t know if I’m allowed to reveal that, given that the judgments about that issue have been pulled from the net.

This summary also seems to indicate that it may be sub judice to reveal the defendant’s name. The Underbelly precedent strikes again! Who knows what will happen if a prospective jury found out that the defendant was a person? However, special agents Buchanan, Maxwell and Vincent need to work on their super secret code a bit, as someone might be able to guess his or her name from, say, the name of the judgment or the earlier bits of the summary. Or maybe not. Prospective jurors can’t read, can they?

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