Director of Public Prosecutions v Thomas

[2006] VSC 19

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. 6

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 19

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Criminal law and procedure – terrorism offences - Commonwealth Criminal Code s.102.6(1) and s.102.7(1) – Passports Act 1938 s.9A(1)(e) – evidence – admissibility – interview of accused – discrete questions and answers – 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

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HIS HONOUR:

1. Before me I have submissions made on behalf of both parties, the prosecution and the defence, as to the deletion of discrete questions and answers, or parts thereof, in the interview of the accused by AFP Officers in Pakistan on 8 March 2003.  I have previously, in Ruling number 3 on 7 November 2005, ruled globally that the interview is admissible.  I did so because I considered, as I there stated, that the answers given by the accused in that interview were voluntary as contemplated by MacPherson v The Queen in that the answers were made by the accused in the exercise of a free choice to speak or be silent; that the actions and questions of the interviewing officers were proper and lawful and that they did not, again in the words of MacPherson's case, hold out inducement or exercise duress upon the accused; and further, that while the accused was a protected suspect within the meaning of section 23B(2) of the Act and ordinarily should have been advised of his right to have a legal practitioner and that facilitated, nonetheless in the spatial, geographical and temporal circumstances there obtaining I considered it was not unfair to admit the interview.

1. The question now arises as to whether specific parts of the interview ought be excluded.  A number of parts should, in my view, be excluded.

1. I apply the following criteria to consideration of discrete questions and answers.  First, of course, the usual criteria of relevance and of the probative-prejudicial axis apply.  The especial consideration in this exercise, however, is the interface between the six previous interviews by ASIO Officers, in Pakistan in January and February 2003, being Exhibit C on the voir dire, and this AFP interview of 8 March 2003.  The six previous ASIO interviews were conducted not for evidentiary purposes, but for security purposes.  The basal question is whether material from the antecedent interviews (the six ASIO interviews which hereafter I will call ‘the antecedent interviews’ for convenience)  imported into the interview by the AFP Officers of 8 March 2003, ought to be excluded.  Neither the prosecution nor the defence before me submit that all reference to the antecedent interviews ought be excluded from the AFP interview.  Indeed, the defence seeks the inclusion of a number of questions and answers in the AFP interview deriving from the antecedent interviews even though the prosecution seeks the deletion of those very questions and answers.

1. The relevant criteria I consider for determining the interface between the A.F.P. interview and the antecedent interviews are these.  First, plainly a mere rehearsal of antecedently obtained information would not of itself render that material, obtained in circumstances which were inadmissible, into admissible form in the AFP interview.  Plainly further, the use of the antecedently obtained material as a lever or for testing or for cross-examination is impermissible.  The expression in the defence submission of 30 January 2006, page 6, 11th line of "a lever" I agree with.  Next, questions  involving testing or cross-examination by reference to previous answer, or testing or cross-examination in any event on general principle, are inadmissible.  Again, the defence expression, paragraph 4, "to apply pressure by way of test and reminder" and the defence expression, paragraph 8, "used for the purposes of testing and/or cross-examination" I agree with.  Next, questions and answers which involve unfairness in a particular or plenary sense are inadmissible, including questions which are unfair in form, content, context, effect or generally.  However, reference to previous answers in the antecedent interviews in order to inquire of a matter and seek fairly the voluntary elucidation of material, and the fair and voluntary answer, are admissible.  It is not only, of course, the intent of the interviewing officer but the state of mind of the accused which is central as a consideration.  Reference in the A.F.P. interview to material from the antecedent interviews, if fair in form, content and context, is admissible.

1. I apply those criteria to the matters litigated before me.

1. I will take the matters seriatim rather than categorically because I think that is much more convenient for persons who are actually having to conduct the case, including preparing it.

1. The first questions and answers are questions 50 to 53.  The prosecution seeks that those be excluded.  The defence seeks that they be included, doubtless for proper forensic reasons.  In my view, if the defence seeks them to be included they should be included and I rule them admissible.

1. Next, in question 54 the words "regardless of what you told investigators during the previous interviews" are sought to be excluded by the prosecution, and the defence agrees, and they are excluded.

1. Next, in question 57 the prosecution seeks the question and answer to be excluded.  The defence seeks it to be included.  I rule that it be included.  Likewise in question 58, the prosecution seeks partial exclusion of the question in relation to the assistance of Mr Thomas.  The defence seeks it included.  Again, for like reason, I rule that it be admitted.

1. Next, question and answer 65 the prosecution seeks to be excluded.  The defence seeks it included.  For like reason I rule that it be admitted.  Questions and answers 66 to 69 both the defence and the prosecution seek to be excluded and they are excluded. 

1. The next section commences at question 145.  The prosecution seeks questions and answers 145 to 158 to be excluded.  The defence agrees with that and accordingly those questions and answers 145 to 148 are excluded.  The defence also seeks exclusion of questions and answers 149 to 150.  The prosecution seeks the inclusion of that material.  In my view, questions and answers 149 to 150 are admissible.  They are not tainted by the same flaw as questions 145 to 148 and I consider are independent of them.  The reference to Khaled Bin Attash is independent of the matters raised in 145 to 148.  I do not consider questions 149 to 150 are cross-examination or testing.  I consider the answers are relevant and probative.  Thus there is a bifurcation between 145 to 148 on the one hand which are excluded and 149 to 150 on the other hand which are admitted.

1. Next, questions and answers 205 to 211.  Both parties seek the exclusion of those questions and answers and they are excluded.

1. In the answer to question 245 the prosecution seeks the exclusion of the words  "intelligence people."  The defence seeks that the full answer remain in and I order it be admitted, for the reasons stated previously namely that the defence doubtless will seek proper forensic use of that material.

1. Next, a set of questions commencing at 301.  I consider questions and answers 301 to 315 are admissible.  First, they are relevant and probative.  The answers go to knowledge of the accused as to relevant persons and entities.  The words "you said" in question 301 I do not consider are cross-examination, because they refer to the answer in 290.  I consider the questions and answers 316 to 319 ought to be deleted as both parties likewise consider.  The prosecutions submits that after 319 the answer should be admitted.  I do not agree.  I consider the answers to the end of 323 should be excluded.  Questions and answers 316 to 323 constitute an entity and a unity and I rule that 316 to 323 are excluded.  However, I consider there is a bifurcation between those questions and the questions and answers commencing at 324 because at 324 the questions go to the current state rather than the historical state and in my view they are admissible, that is, 324 to 337.  The essential reason is that the material admitted is relevant and probative, going to knowledge of the accused as the relevant persons and entities and does not constitute cross-examination or mere rehearsal of antecedent answers.  I further consider that the probative-prejudice axis falls clearly on the side of the probative.  The word "vetting" in question 337 does not constitute cross-examination because it comes from the answer to question 326.  Question and answer 338 and following I consider are relevant and probative and were not objected to.  I note, Mr Robinson, in answer to 325 there is a typing error.  The word "our" should read "out", I think, if you have a look at that.

1. Next, question and answer 482 was not in the current defence submissions but was in Mr Taft's written schedule placed before the Court in December last.  The defence seeks that to be excluded and I agree and exclude it.  That is agreed by both sides, in any event.

1. Question and answer 498 I consider are admissible.  I understand Mr Lasry's submission this morning, adopting the criteria he specified yesterday and in the written submissions, that the mere omission from the tendered interview of the reference to the antecedent material is a solution of form and not of substance or of psychology because the question was in fact asked and the accused would have had the question in mind when he answered it.  However, I do not agree with Mr Lasry's submission in this instance.  I consider that the question asked in 498, including the reference to the previous interviews, was in fact and in substance a matter directing the accused's mind to a current answer in the AFP interview and not merely a rehearsal of previous elicited material.  The proffered solution thus is not a matter of form only because in my view the substance of the question, fairly construed and looking at it from the most favourable position of the accused, is that his mind was directed to "what were you to do in Australia" and that is what he answered, rather than a rehearsal merely of antecedent matter which is contained in the balance of that question.  Thus I consider it is not merely a matter of form but a matter of substance and fairness to allow the answer in with those words deleted that the prosecution has sought to be deleted.  I think the whole section after the word, "Australia" until the end of the two questions should go out.  So the questions reads, "What were you to do in Australia?"  Answer, "Yeah, yeah, he said look at military installations."  Accordingly I rule as such.  If the defence wants those two questions in by way of explanation for the answer, or confession and avoidance, or for any other appropriate reason, the defence of course is welcome to make that application and I would rule upon it.  Subject to hearing such an application I rule that the question should be, "What were you to do in Australia" and then the answer, for the reasons I have stated, namely that I consider that the accused was answering the question, "What were you to do in Australia" not merely rehearsing antecedent data.

1. Next, commencing at question 536 I agree with the defence that questions and answers 536 to 544 ought be excluded.  The topic is not inadmissible but I consider the method of elicitation is impermissible, that is, it was cross-examination or at least a lever.  I consider thus as a matter of procedure rather than topic, questions and answers 536 to 544 be excluded.

1. The next category is 545 to 546.  Again I consider those questions and answers should be excluded because I consider they constitute a form of cross-examination.

1. Next, I consider questions and answers 547 to 548 should be excluded because they not only constitute a form of cross-examination but involve an expression of opinion. 

1. I then come to question 549.  I consider the question is impermissible and the word in answer "Nuh" is excluded.  However, I do not consider the balance of the answer ought be excluded.  I consider the answer is probative and was given in a fair context by the accused and was not the product of cross-examination or expression of opinion and ought to be admitted.  Previously the defence had sought the deletion of questions and answers 545 to 555 but now it seeks the exclusion of 545 to 549 which I agree with up to and including the word, "Nuh."  I do not agree with the defence submission that the answer that I have ruled in 549 ought to be given in some artificial or constructive form by the informant.  The defence seek the content of the answer but not the form.  I consider that the best evidence is the answer given by the accused.  That is what the jury should have before it rather than an artificial construct from the informant.  I consider it should be in that form and accordingly I rule the answer to 549 in rather than have it in a construct. 

1. For those reasons I rule in relation to the interview of the accused by A.F.P. officers on 8 March 2003.

ADDENDUM:   At T. 1120 I ruled that the D.V.D. of training at the Al Farouq camp and other matter was inadmissible.

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