They didn’t know Jack!

On the same day the Joseph Thomas’s lawyers got leave from their trial judge to take their appeal against the Court of Appeal’s order of a new trial to the High Court, a copy of the judgment being appealed from is at last available on Austlii, having presumably receiving approval from the censors. The judgment reveals that torture remains a part of Thomas’s life, this time in the form of increasingly tortured reasoning from the Court of Appeal, including using his own civil liberties against him.

In the aftermath of the Court of Appeal’s courageous ruling that all of the evidence presented at Joseph Thomas’s 2006 trial was inadmissible (what with the torture and lack of a lawyer and all that), segments of the  media were furious. The Australian blamed the judges, with its ‘legal affairs editor’, Chris Mitchell, asking: “Why could they not find a reason to protect society from this man?’ The Court of Appeal promptly found just such a way, exercising its discretion to order a new trial for Thomas instead of entering an acquittal. This maneuver required the DPP to interrupt the court just as it was about the issue its order quashing the conviction; the DPP presumably wasn’t as shocked as the media by the outcome of the appeal. 

Ordering a new trial immediately after declaring that all of the evidence at the old trial was inadmissible was also a pretty gutsy move for the court. The crystal clear authority on the discretion is a unanimous High Court decision from 1984:

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.

The Court of Appeal got around this inconvenient precedent by declaring that the High Court weren’t thinking of a case like Jihad Jack. (The High Court case involved an alleged assault against a manager of the Nauru Phosphate Corporation, where a lot – but not all – of the evidence was hearsay.) What was different about Jack?:

… [T]he evidence on which the prosecution would rely on a retrial of this appellant [was] evidence which was not known – and could not have been known – to the Crown at the time of the trial. Although the ABC interviews had taken place before the trial, this was a matter of which the Crown, inevitably, knew nothing… For practical purposes, the additional evidence did not exist at the date of the trial.

So, the Court of Appeal claimed, the decision on whether or not to hold a new trial depended on the cogency, not just of the (non-existent) admissible evidence at Thomas’s original trial, but also the evidence that has since been discovered by the Crown, courtesy (the Crown said) of the broadcast of the Four Corners interview the first Monday after the verdict in Thomas’s original trial.

This new appeal was brought because the claim that the Four Corners interview was fresh evidence turns out to be a bit whiffy. Unsurprisingly, ASIO, which was presumably bugging Thomas’s phone, knew that he had made repeated contacts with journalists, although they claimed to the court to have no idea that Thomas participated in two lengthy interviews with Four Corners in private homes. (Lucky thing he wasn’t planning a bombing, hey?) ASIO told the court, though, that much of the information its receives is thrown into an unsearchable archive once it is deemed to be not a security concern. (Readers of any of the books on 9/11, notably The Looming Tower, will now be recalling the infamous Wall between the FBI and CIA that ensured that crucial intelligence about the conspirators, one of whom was arrested a month before 9/11 was never pieced together.)  However, the contact with the journalists did make it into an ASIO report a couple of weeks before Thomas’s trial:

On 8 February 2006, an intelligence report was prepared by a case officer within ASIO and distributed to some other officers within ASIO. It is the only intelligence report brought into existence in ASIO which made any reference to contact between the journalist (or any other journalist) and T. The report recorded that the journalist had spoken to T about a particular person who, the report said, was a person ‘of security interest’. It was significant, according to counsel for T, that this same person had been mentioned by T during the interviews in Pakistan. The report made no mention of T having participated in an interview with Four Corners, nor did it contain any indication that he had made, or might have made, admissions about matters relevant to the charges on which he was about to stand trial. (It should be noted that this report came into existence only eight days before the trial was due to commence.)

Ergo, said Thomas’s lawyers, the Four Corners interview wasn’t fresh evidence: either the Crown (including ASIO, for this purpose) knew about the interview or the Crown (not including ASIO) ought to have known.

The Court of Appeal answered the first argument by furiously denying that ASIO (which interviewed Thomas six times amidst his torture in Pakistan before the AFP’s interview and then pointed the AFP to potential witnesses after the interview) was a part of the investigation. To the contrary, the pair of Commonwealth organisations were running separate, parallel inquiries: one into security, the other into crime. Australians, the court declared, should feel reassured that the ASIO kept within its statutory charter:

17(1)(a) to obtain, correlate and evaluate intelligence relevant to security;

(b) for purposes relevant to security and not otherwise, to communicate any such intelligence to such persons, and in such manner, as are appropriate to those purposes …

Hmm. And what is ‘security‘?:

[T]he protection of, and of the people of, the Commonwealth and the several States and Territories from: (i) espionage; (ii) sabotage; (ii) politically motivated violence; (iv) promotion of communal violence; (v) attacks on Australia’s defence system; or (vi) acts of foreign interference; whether directed from, or committed within, Australia or not…

As you can see, there’s no overlap at all between ASIO’s job and the AFP’s, when it was investigating whether Thomas had received money from a foreign organisation known for its politically motivated violence. Whew! Sure, maybe the ASIO and the AFP had the odd chat when they bumped into eachother at the movies and gave eachother a friendly hug now an then, but there was nothing else going on between them!  (The Court of Appeal’s backpeddling from its original judgment is made especially clear by the fact that the Court back then rejected an argument that there was no connection between the ASIO interviews (conducted mid-torture) and the AFP ones (post-torture) because of their different purposes: security and criminal investigation.)

Inconveniently for the Court of Appeal, there are a number of UK cases that indicate that various elements of the Crown are to be treated as one when it comes to deciding who knows what. But the Court rejected these cases because they were about the duty to disclose exculpatory information (I.e. which will help the defendant) rather than inculpatory information (which will hurt the defendant). This argument ignores, of course, the disadvantage that the Wall poses for defendants like Thomas, who now face a second trial on all new evidence just because it happened to be distributed between two organisations that, while both out to get him, were doing so in ‘parallel’.

The Court of Appeal then turned to an inconvenient statutory provision, which provided that ASIO could transmit information to the AFP even if it wasn’t for security purposes:

18(3)(a)[W]here the information relates, or appears to relate, to the commission, or intended commission, of an indictable offence against the law of the Commonwealth or of a State or Territory – (i) the information may be communicated to an officer of the Police Force of a State or Territory; or (ii) to a member or special member of the Australian Federal Police; or (iii) to the Chief Executive Officer of the Australian Crime Commission or a member of the staff of the ACC.

The Court of Appeal interpreted this provision to make it more convenient:

In our view, there is no reasonable argument that ASIO was authorised by s 18(3)(a) 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. 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.

So, the Court’s concern is about Thomas’s rights! But anyone who’s studied policing will recognise this trick, which often arises when there’s a dispute about whether or not the police reasonably suspected someone of a crime (which can trigger cautions, recording requirements, informed consent requirements and so on.) When it’s convenient to them, the police insist that, out of due regard to civil liberties, they kept an open mind; equally, when it’s convenient to them, the police insist that they really suspected someone of a crime (hence the frisk search that yielded the drugs.) See this article for how this trick works when it comes to DNA sampling.

The Court of Appeal’s supposedly strict reading of s18(3)(a) won’t inhibit ASIO in the slightest if it wants to pass something onto the AFP. If the info turns out to be incriminating, then 18(3)(a) is satisfied and, if not, no-one will ever know about it. And, even if they did, what chance do you think there is that an ASIO agent – especially one who maintains that they were complying with 18(3)(a) – will be prosecuted and attract the dreaded two year imprisonment the Court of Appeal made a big deal about? Anyone can see that the prosecutions are only going to happen for rogue leaks or security breaches, not infringements of some alleged terrorist’s privacy. (Prosecutions can’t even be commenced without the Attorney-General’s consent.) Pull the other one, Court of Appeal. (Also, the Court’s reading makes it nice and easy, now, for ASIO to be as minimalist as possible about any duty of disclosure it has of exculpatory evidence. We have to obey our statutory charter! Note that ASIO, of course, is no public authority for the purpose of the conduct mandate in that other statutory Charter.)

Anyway, even accepting that s18(3)(a) is somehow controlling of the issue, what sort of nonsense is the claim that Thomas’s contact with Four Corners could not ‘appear to relate’ to the offences he was charged with. What did ASIO (or the Court of Appeal) think he was going to chat with Four Corners about? Notice that Thomas wasn’t chatting with Today Tonight. Four Corners would scarcely agree to a program that did not address the very crimes that Thomas was accused of. So, any take Thomas had may well be of great significance to his prosecution. (As it turns out, the interview didn’t contain any confessions about the more serious crimes Thomas that the jury acquitted him on, but did contain statements of relevance to the crimes of having a false passport and receiving money from Al Quaeda, which the jury convicted him on. What’s the bet that the jury, in ruling out the major charges, thought that it was delivering a slap in the face to the AFP and DPP, rather than exposing Thomas to a maximum 25 years?)

And this is why Vincent JA’s example, proudly quoted in the judgment, is beside the point. The argument wasn’t about Thomas’s lengthy conversations with anyone, or even any journalist, but rather with a particular variety of journalist. Of course, there are still privacy and free speech implications, but they are narrower than Vincent JA’s argument made out. Anyway, all this talk of privacy is a bit galling, given that Thomas’s house and phone was bugged the whole time, with ASIO having carte blanche to send details tot he AFP if THomas said anything about his time in Afghanistan and Pakistan. Likewise, how can the Court of Appeal – including ex-civil-liberties head Chris Maxwell – speak with a straight face about freedom of expression when Thomas’s attempt to get his story into the open (doubtless on legal advice that a post-trial broadcast couldn’t rebound on him, given Fowler) is now potentially the means for the Commonwealth to lock him up for up to twenty-five years? Do you think Thomas is likely to feel free to go to the media now, having read this judgment? Indeed, he’d be well advised to go to the AFP and hand them everything his ever said or written in the past, just to make sure that the DPP and Court of Appeal can’t pull the same stunt if the new trial falls in a heap.

So, the next step is seeking leave to the High Court. The Court hates giving leave in interlocutory matters, but you’d have to think there’s a good argument to do so here, given that appeal is effectively from the Court of Appeal’s order in the appeal from Thomas’s original trial and that the Victorian Court made an unprecedented reading of one of the High Court’s own judgments. The timing might be fortuitous as, assuming special leave is granted, the case is unlikely to be heard in time for anti-defence Chief Justice Gleeson (soon to retire) to participate, but should be able to be heard by Kirby before his departure next year. Depending on who McClelland replaces Gleeson with, this might be Thomas’s best opportunity for appropriate protection against the double jeopardy trap sprung by Victoria and the Commonwealth right after the media demanded it.

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