Director of Public Prosecutions v Thomas

[2006] VSC 33

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

No.1458 of 2004

Director of Public Prosecutions
(Commonwealth)

V

Joseph Terrence Thomas

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Ruling No. 9

JUDGE:	Cummins J
WHERE HELD:	Melbourne
DATE OF HEARING:	9 February 2006
DATE OF RULING:	9 February 2006
CASE MAY BE CITED AS:	DPP v Thomas
MEDIUM NEUTRAL CITATION:	[2006] VSC 33

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Criminal law and procedure – terrorism offences – Commonwealth Criminal Code s.102.6(1) and s.107.7(1) – Passports Act 1938 s.9A(1)(e) – publication of identity of witnesses – s.18(1) and s.19(c) Supreme Court Act 1986 – consequences of Ruling No. 8.

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APPEARANCES:	Counsel	Solicitors
For the Director	Mr N. T. Robinson with Ms L. Taylor	Commonwealth Director of Public Prosecutions
For the Accused	Mr L. Lasry QC with Mr M. Taft	Robert Stary and Associates
For the Commonwealth Attorney-General (by leave)	Mr R.Tracey QC with Dr S. Donahue	Australian Government Solicitor

HIS HONOUR:

1. Yesterday, in Ruling number 8, I ruled that the identities of the five so-called alphabetical witnesses who are proposed to be called by the prosecution in this trial ought not remain prohibited from publication. As that Ruling rehearses, I had, on 12 October 2005, pursuant to section 18(1) and 19(c) of the Supreme Court Act 1986, ruled that their identity remain prohibited from publication during the preliminary stage of this trial; but that, as the Court had reached the public stage of jury proceeding, I ruled that the identities should no longer be prohibited, for reasons in that Ruling and which I shall not repeat.

1. In paragraph 12 of the affidavit of Federal Agent Taylor, sworn 7 October 2005, she stated as follows:

“At the time of the interview with each witness I stated that the AFP would endeavour to seek orders from the Court to give effect to their respective requests to protect their identity when they are giving evidence during these proceedings.”

1. Indeed, AFP and the Prosecution have strenuously sought that that prohibition not be continuous.  However, for reasons I stated in Ruling 8 I considered, having looked at it carefully and closely, that it was in the public interest for public proceedings to be public and accordingly I ruled that the identity of the witnesses called before the jury not be prohibited from publication. 

1. Leading counsel for the prosecution, Mr Robinson, this morning has informed the Court that there is now a difficulty with the five witnesses giving evidence.  The precise difficulty is not presently ascertained, but he has made clear that the witnesses, or some of them, may refuse to give evidence because they do not want their identities revealed.

1. If the witnesses were in the jurisdiction I would have them brought before the Court and I would deal with them. The Court cannot be run by witnesses, and the Court cannot be run by people who threaten witnesses. There is significant power in the Court to protect witnesses, as section 19(c) demonstrates, and I gave anxious and close consideration to that matter. But in the end it is the Judge who must decide the balance of interests, which I have done, and it is the Judge's function to determine the matter of prohibition.

1. I have done that after careful and close consideration to matters of the safety of the witnesses and of the families of the witnesses, within the prison system in the United States and of their families outside the prison system in the United States and overseas from the United States.  For the reasons I have stated I consider that it is necessary for public proceedings to be public in this democracy of Australia.  Therefore I so ordered.

1. As I understand it, the alphabetical witnesses made sentencing arrangements, part of which was that they would give evidence if called upon.  Refusal to do so may or may not have custodial consequences for them in America.  In fairness to each of those witnesses I consider I should give them the opportunity to receive legal advice and to consider the position if they refuse to give evidence, and I propose to do so by adjourning this case for three days so that they can have that opportunity.

1. In all the circumstances I consider that it is appropriate to adjourn the trial until Monday morning, Melbourne time, which will be 13 February, Sunday, American time.  Then I will be able to inform the jury of whether they will be required to come in early or not.  If the witnesses are to be called the jury will be told to come early. If witnesses are not be called, no doubt the United States' processes will flow in relation to those witnesses.  But as far as this Court in Australia is concerned we will proceed without those witnesses in the event that they refuse to give evidence.