Director of Public Prosecutions v Thomas

Case •

[2006] VSC 18

•

31 January 2006
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. 7

JUDGE:

Cummins J

WHERE HELD:

Melbourne

DATE OF HEARING:

30 January 2006

DATE OF RULING:

31 January 2006

CASE MAY BE CITED AS:

DPP v Thomas

MEDIUM NEUTRAL CITATION:

[2006] VSC 18

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Criminal law and procedure – open courts – federal criminal proceedings - terrorism offences - Commonwealth Criminal Code s.102.6(1) and s.102.7(1) – Passports Act 1938 s.9A(1)(e) - national security – Part 3 National Security Information (Criminal Proceedings) Act 2004 – sections 6, 21, 22, 24, 25 and 26 – s.18 and s.19(a) Supreme Court Act 1986 – s.93.2 Commonwealth Criminal Code – s.15XT and s.85B Crimes Act 1914 (Commonwealth).

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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
For the Herald and Weekly Times Pty. Ltd., Nationwide News Pty. Ltd., Channel 7 Melbourne Pty. Ltd., Nine Network Australia Pty. Ltd., and John Fairfax Publications Pty. Ltd.  (by leave) Mr W. T. Houghton QC with
Dr M. J. Collins 		Corrs Chambers Westgarth
For The Age Newspaper Pty. Ltd. And The Australian Broadcasting Commission
(by leave) 		Mr S. Mukerjea Minter Ellison

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HIS HONOUR:

  1. The accused, Mr Joseph Terrence Thomas, is before the Court on four counts, being Count 1, that he received funds from a terrorist organisation, contrary to paragraph 102.6(1) Commonwealth Criminal Code; Counts 2 and 3, that he provided resources to a terrorist organisation, contrary to paragraph 102.7(1) of the Code; and Count 4, that he possessed a falsified Australian passport, contrary to paragraph 9A(1)(e) Passports Act 1938.  He has pleaded not guilty to each of those counts and an extensive pre-empanelment inquiry has been conducted in which rulings as to admissibility of evidence have been made.  We are now on the eve of the arraignment of Mr Thomas before a jury.

  1. On 18 July 2005, and prior to the commencement of the pre-empanelment proceedings, the Commonwealth Director of Public Prosecutions gave notice pursuant to s.6 that the National Security Information (Criminal Proceedings) Act 2004 (hereafter the N.S.I. Act) applied to this federal criminal proceeding.  Part 3 (being ss 21 – 38) of the NSI Act is titled “Protection of information whose disclosure is likely to prejudice etc. national security.”  By its provisions is articulated a regime for the disclosure or the non-disclosure of such information in federal criminal proceedings.  Division 1 deals with management of information.  Division 2 deals with Attorney-General’s certificates for protection of information – sub-division A as to notification of expected disclosure, sub-division B as to notification expected from oral evidence, and sub-division C as to Attorney-General’s non-disclosure certificates and witness exclusion certificates.  Division 3 deals with closed hearings and non-disclosure and witness protection orders.

  1. As a consequence of the s.6 Notice, on 22 September 2005 I ordered a s.21 Conference be held.  On 28 September 2005 the prosecution filed a s.24 Notice as to matters which may affect national security.  On 29 September 2005 the defence did likewise.  As a consequence of those matters, on 29 September 2005 and pursuant to the provisions of Part 3 NSI Act I made twenty-two Orders for Court closure or non-publication in relation to evidence to be led on the voir dire, which evidence was led to determine admissibility of material sought to be before the jury in trial.  Essentially, the evidence on the voir dire related to six interviews in January and February 2003 in Pakistan of the accused by ASIO Officers for national security purposes (not for evidentiary purposes) and actions in relation thereto.  An interview of the accused for evidentiary purposes by AFP personnel in Pakistan occurred on 8 March 2003. 

  1. As to the 29 September 2005 Orders, I made four Orders protecting the confidentiality of the NSI hearings and evidence tendered therein relating to or affecting matters of national security; five Orders protecting the confidentiality of the identity of the ASIO witnesses; three Orders protecting the confidentiality of the identity of the members of and relationship with foreign intelligence services; seven Orders in relation to documents that contained national security information; and three Orders protecting the confidentiality of intelligence methodology and ongoing intelligence or police investigations.

  1. I consider those Orders made at the time and for that purpose were appropriate and prudent.  By reason of the proposed evidence and the respective s.24 Notices it was apparent that a substantial amount of security-sensitive material was to be adduced, the ambit and content of which was not fixed; we were embarking upon unchartered waters; and the pre-empanelment proceeding was in any event sub judice. 

  1. On 4 October 2005 the Commonwealth Attorney-General Mr Ruddock gave certification and advice pursuant to the NSI Act, having received the s. 24 notices from the parties.  The Attorney, by paragraph 5 of that certification, advised, pursuant to the various subsections of s. 26, that he had decided at that stage not to issue a s. 26 certificate in relation to the matters there set out.  He advised, by paragraph 7, that it may be necessary in the future to do so, depending upon what transpired at the preliminary hearing.  He gave a further like notice on 10 October 2005. 

  1. If I may say so, I consider the decisions of the Attorney as stated in those notices were entirely responsible and proper.  So, too, his decision not to seek security clearances for the legal representatives of the accused.  For their part, the counsel and solicitors for the prosecution and for the defence, while fully articulating and pressing their respective clients' causes, have conducted themselves most responsibly and properly throughout. 

  1. Mr Tracey for the Attorney, appearing by leave, has sought in the interests of the protection of national security the continuation at jury trial of the Orders of 29 September 2005 or their like.  He also has expressed concern that absent the continuation of such Orders, the procedures invoked by the provisions of the NSI Act could involve fragmentation of the jury proceedings.  Mr Houghton, with Dr Collins, for numerous media entities, and Mr Mukerjea for two other media entities, have sought the lifting of the Orders for the jury trial. 

  1. The Court is amply empowered, absent the NSI procedures, to protect matters of national security when they arise during trials. Under s. 18(1) Supreme Court Act 1986 the Court, in the circumstances stated in s. 19, may order closure of the Court, order persons not be present, or prohibit publication of material. Under s. 19(a) it is provided that the Court may make a s. 18 Order "if in its opinion it is necessary to do so in order not to (a) endanger the national or international security of Australia." Under the Commonwealth Criminal Code by s. 93.2(2) it is provided that at any time a Judge "if satisfied that it is in the interest of the security or defence of the Commonwealth" may make like orders. Section 15XT Crimes Act 1914 (Commonwealth) makes analogous provision.

  1. Further, there is fundamental inherent power in the Court to protect matters which properly should be protected by way of public interest immunity.  I have had before me an affidavit, classified “Secret”, of Mr P.T. O'Sullivan, Director-General of Security, Head of the Australian Security and Intelligence Organisation, sworn in Melbourne on 27 September 2005 and of 47 paragraphs, setting out reasons, including material, in support of confidentiality and court closure pursuant to s. 22 of the NSI Act, s. 93.2 Criminal Code, and ss. 15XT and 85B Crimes Act 1914. I also have before me an affidavit of Mr A.J. McKinnon, First Assistant Secretary, Diplomatic Security Information Management and Services Division of the Department of Foreign Affairs and Trade, sworn in Canberra on 28 September 2005 and of 18 paragraphs. That latter affidavit is a public document. The former affidavit is a non-public document. I today have re-read the material, which I bear centrally in mind, that is set forth in those affidavits, particularly the affidavit of Mr O'Sullivan.

  1. The Court thus is amply empowered, both by statute and by common law, to protect matters of national security interest, and by long tradition and practice the Court is, as it should be, sensitive to matters of national security and to protect those matters.

  1. The essential question is whether that protection should be provided under the NSI Act or in the traditional way that I have just articulated. 

  1. There are powerful reasons why the traditional way should be followed.  Jeremy Bentham in 1827 in The Rationale of Judicial Evidence wrote, and he is as right now as he was then:

"Publicity is the very soul of justice...  It keeps the Judge himself, while trying under trial." 

Bentham's principle did not apply to the trial of Joseph K..Kafka wrote:

"K might care to remember that the proceedings were not public; they could be opened to the public if the Court thought this was necessary, but the Law did not insist on publicity."[1]

[1]Franz Kafka, “The Trial” 1925.

Lord Shaw in Scott v Scott[2] said:

"The right of the citizen and the working of the Constitution in the sense which I have described have upon the whole since the fall of the Stuart dynasty received from the judiciary - and they appear to me still to demand of it - a constant and most watchful respect. There is no greater danger of usurpation than that which proceeds little by little, under cover of the rules of procedure, and at the instance of Judges themselves."

Gibbs J, as then he was, in Russell v Russell[3], having referred to Scott v Scott said, referring to open courts,

"This rule has the virtue that the proceedings of every Court are fully exposed to public and professional scrutiny and criticism, without which abuses may flourish undetected.  Further, the public administration of justice tends to maintain confidence in the integrity and independence of the courts.  The fact that courts of law are held openly and not in secret is an essential aspect of their character. It distinguishes their activities from those of administrative tribunals, for 'publicity is the authentic hallmark of judicial as distinct from administrative procedure' McPherson v McPherson (1936) AC 177 at 200."

The public through the media has a real and legitimate interest in concurrent publication of proceedings.  Retrospective and edited publication fails to fulfil that interest.

[2](1913) AC 417 at 477-8.

[3](1976) 134 CLR 495 at 520.

  1. Of course, as I have said, inherent within the Court's power and exercised from time to time, is closure for security considerations, and that matter remains a matter to which the Court is constantly sensitive. 

  1. I do not consider the likelihood of fragmentation of the proceedings, foreshadowed by Mr Tracey as a concern, warrants the invocation of the statutory power rather than traditional power that I have stated.  I am sufficiently optimistic to believe that the trial can be conducted relatively smoothly in the absence of the 29 September 2005 Orders or their like, while giving full protection to matters of national security and full locus on a continuing basis to the Attorney to consider relevant questions.

  1. I am optimistic for the following reasons based in reality, not in attitude.  First, as has already been demonstrated, the legal practitioners for the parties have conducted themselves responsibly at all times.  Second, the NSI Act, particularly s. 25, lays down requirements of notice of security-sensitive material, which I am sure the practitioners will fulfil.  Third, most of the security-sensitive material heard on the voir dire, and as to the anticipation of which the original order rightly was made, will not be led at the trial.  Fourth, with application of mind, fragmentation of proceedings can be minimised.  I do not believe this trial will be conducted by trench warfare. 

  1. Accordingly, I am not persuaded to continue the Orders made on 29 September 2005 or their like.  The Orders, of course, remain in force at the moment and will remain in force until a jury is empanelled.  I propose then not to extend the Orders.  They remain in place in relation to what has gone before, much of which was security-sensitive and needs to be protected, and little of which, as I anticipate it, will be led at the trial.  But as to evidence hereafter, once empanelment occurs I propose to lift the Orders of 29 September 2005.

  1. Quo vadis?

  1. I think Mr Tracey should have appropriate time to consider the position and receive instructions from the Attorney, and I certainly will grant that time.  In relation to matters which might arise under the ordinary statutory and common law power of the Court to protect national security, as distinct from the NSI Act, if this of any assistance to Mr Tracey in tendering advice to the Attorney, I say the following.  First, I could not envisage why the identity of any ASIO Officer would be revealed in the trial and subject to hearing submissions to the contrary I would fully expect their identities to remain confidential in the normal way.  Second, I do not expect that there will be much security-sensitive material sought to be led by prosecution or defence in this trial.  I think the great bulk of it was led at the voir dire, but is not likely to be led in the jury trial.  Third, the obligations under s. 25 for counsel to notify persons of any anticipated security-sensitive questions or evidence remain in force in any event, and I am confident counsel will fully observe them.  And fourth, the Attorney certainly will have full and continuing locus to consider the position if an issue does arise in which the Attorney may wish to consider the position.  I am

sufficiently optimistic to believe that will not happen a lot, but if it is going to happen, the Attorney certainly will have full locus to consider the position.

  1. For those reasons I do not propose to extend the Orders of 29 September 2005 beyond the empanelment of the jury in this proceeding.


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