Director of Public Prosecutions v Thomas

[2006] VSC 31

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1458 of 2004

Director of Public Prosecutions (Commonwealth)

v

Joseph Terrence Thomas

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Ruling No. 8

JUDGE:	Cummins J
WHERE HELD:	Melbourne
DATE OF HEARING:	8 February 2006
DATE OF RULING:	8 February 2006
CASE MAY BE CITED AS:	DPP v Thomas
MEDIUM NEUTRAL CITATION:	[2006] VSC 31

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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 – considerations applicable

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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

Ruling No. 8

HIS HONOUR:

1. On 12 October 2005, pursuant to section 18(1) Supreme Court Act 1986 and based upon the consideration in section 19(c) of that Act, namely the physical safety of persons, I ordered that the identity of five witnesses to be called in the trial, and to be called in the pre-trial phase on the voir dire, not be revealed. Of course, on the pre-trial phase the material could not be revealed in any event because the proceedings were subjudice. I made the Order for two reasons: one was because of the question of safety, and the other was because in any event the proceedings were at that stage subjudice. We are now on the eve of empanelment of the jury and opening of the trial, and next week the witnesses' evidence will be called by video-link from custodial situations in the United States of America. The question thus is whether the identity of the witnesses which are currently prohibited from being revealed ought to continue in the public phase of the trial.

1. It is demonstrable, of course, that the public has a profound interest in trials being public, and that is facilitated very substantially through the good agency of the media, and the trial being public is the elemental matter upon which we proceed. Of course, both by long practice, by a matter of justice, and by statutory provision, namely section 19(c), the Court is always conscious of the physical safety of persons. The essential material in support of the continuation of the Order is an affidavit of Ms C.E. Taylor, Federal Agent of the Australian Federal Police, sworn and filed on 7 October 2005.

1. In that affidavit, Federal Agent Taylor sets forth the considerations of safety which found the application of the prosecution to continue - initially to make and now, in the jury phase, to continue - the non-disclosure of identity of the five witnesses.  Essentially, the reasons, which are set forth in detail in the affidavit, which is of 20 paragraphs and has exhibited to it a substantial amount of correspondence in 19 exhibits, are that the safety of the respective witnesses would be at risk if their identity or their giving evidence in this trial linked to their identity were revealed.  Each of them is in custody in the United States of America.  The circumstances of the risk, that is to say from fellow inmates who are disaffected by the giving of that evidence, is set forth in the affidavit and one is sensitive to that.  The further concern expressed in the affidavit of Federal Agent Taylor is that the families, including young children, and a grandmother in one instance, of the witnesses could also be at risk, both in the United States of America, where a number of them live, and outside the United States of America where a number of others live.

1. I am sensitive to those concerns of those persons, which I wholly understand, and I consider them fully and seriously.

1. Very properly, as is stated in paragraph 12 of the affidavit of Federal Agent Taylor, in the information-eliciting phase of the investigation, she did not purport to give to the witnesses any undertaking or guarantee that their identities would never be revealed in public trial, because of course that would be beyond her competence.  What she did, which she was entitled fully to do, was she informed the witnesses that the Australian Federal Police "would endeavour to seek orders from the Court to give effect to their respective requests to protect their identity in their giving evidence during these proceedings".  I must say that Federal Agent Taylor individually, the AFP generally, and the prosecution in this case, have endeavoured, fully in accordance with that statement, to seek orders from the Court to give effect to the requests of those witnesses to protect their identity, and I note that that has been a matter strongly urged upon me by the AFP and the prosecution in this case.

1. There is a further matter which is relied upon by Federal Agent Taylor and by the prosecution here, and that is in paragraph 18, which is the question of general public interest immunity in relation to other or future investigations.  In paragraph 18, the affidavit states: "The disclosure of the identity of these witnesses could therefore jeopardise ongoing and future investigations and hamper the ability of the AFP to pursue those investigations."  Again, I am sensitive to that matter, which is a significant matter and which I take fully into account.

1. There were a couple of matters raised by senior counsel for the accused which were relied upon.  One was that there could be a sinister connotation by the witnesses' identity not being revealed and by the use of the alphabetical pseudonyms.  I am not persuaded of that matter.  I am quite confident that no such consequence would flow to the accused, Mr Thomas, in this trial, given appropriate judicial direction.  Next, the mere fact that the identity of one or more of these persons or indeed of the so-called "Lackawanna 6" of which these persons are said to be five already being in part published to a greater or lesser degree either electronically or in other form is not in my view conclusive of the matter.  The utility argument is not, in my view, a powerful one although I take it into account. 

1. However, I am firmly of the view that the continuation of the Orders ought not be made in this case. First, that is because this is a public proceeding. Second, there is a powerful interest in the community to have court proceedings fully public so far as that can be done, consonant with, amongst other things, the provisions of section 19(c) Supreme Court Act 1986. Third, because - and relevantly - Mr Lasry has responsibly foreshadowed that it will be a necessary or integral part of the defence presentation in this case in testing these witnesses, and no doubt putting to the jury considerations as to whether the witnesses' evidence ought be relied upon or not, that their identities be fully articulated.

1. I am persuaded that their identities should be articulated in the jury trial, and they should not be referred to by means of pseudonym, primarily because I consider the defence should not be hampered in any way from testing the witnesses and from going to the jury on the basis of the witnesses not being appropriate for the jury to rely upon. 

1. Looking at the wider picture, that is to say publication outside the Court, I am affirmatively satisfied that the publication should be permitted to occur.

1. That is because the community has a powerful interest in the proceedings being public, and fully public.  It is a very slippery slope once one commences to curtail the publication of proceedings, particularly in the final curial phase of a case as in this Court we now are.  I am conscious of the concerns as to the safety of persons.  However, as Mr Mukerjea and Mr Quill have both put before me, the identity of the persons to a degree is known, and even if there were a prohibition order as to their identities in the wider community, the fact that they are giving evidence under a pseudonym could be linked up in any event by the persons most immediately likely to be of concern.  Accordingly, whilst I am sensitive to the questions of safety - and the Court always is sensitive to those questions - I am not persuaded that the Orders of 12 October 2005 should remain in any form at all, either within the Court or outside the Court. 

1. Accordingly, I propose to lift the Orders once the trial commences tomorrow morning.