Director of Public Prosecutions v Thomas
[2005] VSC 435
•2 December 2005
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1526 of 2004
| DIRECTOR OF PUBLIC PROSECUTIONS (COMMONWEALTH) |
| v |
| JOSEPH TERRENCE THOMAS |
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RULING NO. 5
JUDGE: | CUMMINS J | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 10, 25 November, 2 December 2005 | |
DATE OF RULING: | 2 December 2005 | |
CASE MAY BE CITED AS: | DPP v Thomas | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 435 | |
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Criminal law and procedure – prosecution application for revocation of bail – terrorism offences – Commonwealth Criminal Code s.102.6(1) and s.102.7(1) – Passports Act 1938 s.9A(1)(e) – psychiatric considerations – issue as to whether court granting bail misled – application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Director | Mr R. Maidment SC with Mr N. Robinson | Commonwealth Director of Public Prosecutions |
| For the Accused | Mr L. Lasry QC with Mr M. Taft | Galbally Rolfe |
| For the Commonwealth Attorney-General (by leave) | Mr R. Tracey QC with Dr S. Donahue | Australian Government Solicitor |
HIS HONOUR:
The accused, Mr Joseph Terrence Thomas, is charged with three offences contrary to the Commonwealth Criminal Code and one contrary to the Commonwealth Passports Act 1938. The three Commonwealth Criminal Code offences are: count 1, that between November 2002 and January 2003 at Karachi in Pakistan and elsewhere, he, contrary to paragraph 102.6(1) Commonwealth Criminal Code intentionally received funds from a terrorist organisation, namely Al Qa’ida or another terrorist organisation associated with Khaled Bin Attash and/or Usama Bin Laden, knowing that the organisation was a terrorist organisation; Count 2, that between 5 July 2002 and 4 January 2003 at Karachi in Pakistan and elsewhere he did contrary to paragraph 102.7(1) of the Code intentionally provide resources to a terrorist organisation, namely Al Qa’ida or another terrorist organisation, that would help that organisation to engage, directly or indirectly, in preparing, planning, assisting in or fostering the doing of a terrorist act; and Count 3, that between 1 November 2002 and 4 January 2003 at Karachi in Pakistan and elsewhere he did contrary to paragraph 102.7(1) of the Code intentionally provide resources to a terrorist organisation, namely Al Qa’ida or another organisation with which Khaled Bin Attash was then associated, that would help that organisation to engage, directly or indirectly, in preparing, planning, assisting in or fostering the doing of a terrorist act. The passport offence charged against Mr Thomas is count 4: that he did, on or about 4 January 2003 at Karachi in Pakistan and elsewhere have in his possession, contrary to section 9A(1)(e) Passports Act 1938 have in his possession an Australian passport that had been falsified.
Mr Thomas left Australia in March 2001, flew to Pakistan and then crossed to Afghanistan. He remained there for some months and then returned to Pakistan. He remained there throughout 2002. On 4 January 2003, at Karachi airport, Mr Thomas was arrested by Pakistani authorities as he prepared to return to Australia. Between January and June 2003 Mr Thomas was detained in Islamabad. After extensive interest and interrogation by various authorities but during which no charge against him was laid, Mr Thomas returned to Australia on 5 June 2003. He remained in Australia until he was arrested and charged on 18 November 2004. He was remanded in custody until he was granted bail by his Honour Chief Magistrate Gray on 14 February 2005. There had previously been an application before Hansen J for bail which was determined on 22 December 2004, which application was refused by his Honour. The learned Chief Magistrate having granted bail, on 14 February 2005 the Commonwealth appealed from that decision and Teague J on 15 March 2005 dismissed the Commonwealth appeal. Thus it was that the accused remained on bail until the conclusion of his committal.
The committal was heard before her Honour Magistrate Hannan in March 2005 and concluded on 1 April 2005. On that day her Honour, having committed the applicant for trial to this Court, in considered reasons granted the applicant bail. In one paragraph of her reasons, the relevance of which I will come to in a moment, her Honour stated (at p.649): “I further take into account what I regard as a Crown case, while certainly capable of satisfying the committal test, that is less than what could be described as overwhelming.” The matter then came before this Court, and after a lengthy voir dire, on 7 November 2005 I ruled as admissible the record of interview of the accused in Islamabad by Commonwealth officers on 8 March 2003. I think that ruling can rightly be described as a setback for Mr Thomas, and perhaps is a step along the road beyond that which Magistrate Hannan had in mind when she made her qualified expression that I have cited at page 649 of the depositions. Indeed, that setback is one of the grounds upon which the Commonwealth now seeks to have the bail of the accused revoked – the setback said to increase the risk of flight.
After conclusion of the voir dire and following the 7 November 2005 ruling I had intended, and the prosecution had expected and Mr Thomas had expected, that the trial would proceed and be concluded this year. However, due to the arrests of various persons entirely unconnected with Mr Thomas on terrorism charges a couple of days before the jury trial was due to commence and the ensuing extensive publicity thereof, I felt the only right and proper thing to do to ensure a unquestionably fair trial was to adjourn the matter over to 30 January 2006, which I did.
The prosecution then sought the revocation of the bail of Mr Thomas.
I consider the application (‘the revocation application’) by the prosecution was entirely responsible and proper and was made bona fide in all the circumstances. The question is whether it should be granted.
By reason of the nature of the charges preferred against Mr Thomas, which are, as defined by section 1A(b) Anti-Terrorism Act 2004, terrorism offences, and by the reason of section 15AA(1) of that Act, the Court should only grant bail if exceptional circumstances are made out.
The circumstances relevant for consideration in the revocation application are these. First, the nature of the charges. The charges are especially serious charges and, if proved, would normally involve a substantial penalty of imprisonment. Secondly, the strength of the prosecution case. It is inappropriate and undesirable for a judge to comment prospectively about a case. The Bail Act 1977 requires some advertence to the issue. I think it is appropriate that I say no more than the prosecution appears to me to have substantial evidence in support of its case. Third, the personal circumstances of the accused. His general circumstances normally would not constitute exceptional circumstances. Fourth, Mr Thomas’ co-operation with the authorities. This is a Janus-like element in that there may be two aspects to it, and I will say no more about that.
There is evidence before me that Mr Thomas presently suffers from an anxiety and possibly a mood disorder. Whatever is the characterisation and aetiology - the former is not in dispute but the latter is – I would not do justice to the three distinguished psychiatrists who have given evidence before me to rehearse that evidence in an ex tempore judgment. I have read more than once all the psychiatric reports, and I have listened with care and attention to the evidence given before me by the three experts called. The witnesses were Professor P. D. McGorry of the University of Melbourne, clinical psychiatrist, Dr. L. A. Walton of Melbourne, consultant psychiatrist, and Professor A. C. McFarlane of the University of Adelaide. Numerous reports and clinical notes were tendered before me. In the opinions of Professor McGorry and of Dr. Walton, Mr. Thomas presently suffers from post traumatic stress disorder. In the opinion of Professor McFarlane, Mr Thomas presently suffers from a major depressive disorder and post traumatic stress disorder. The aetiology, history and onset of the disorders is the subject of some dispute. Also, an affidavit has been filed of Mr. P. V. Delphine, Deputy Commissioner, Corrections Victoria sworn today as to conditions and facilities available in Barwon Prison and in Acacia Unit, the high security unit of Barwon. It is unnecessary to go to the psychiatric or custodial considerations, because, as I shall come to, I consider Mr. Thomas’s conduct since being released on bail on 14 February 2005 in the stressful situations since pertaining to him constitute exceptional circumstances as contemplated by s.15AA(1).
Before me the prosecution relied upon two matters in support of the revocation application. One was the increased risk of flight consequent upon the setback to Mr Thomas of the ruling that the 8 March 2003 interview in Islamabad was admissible, which matter I have alluded to in paragraph 3 above. The other was the circumstances in which bail was granted at the conclusion of the committal. I turn to this second matter.
The committal concluded on Friday, 1 April 2005 at which time the Magistrate committed Mr Thomas for trial. Thereupon an application for bail was made on behalf of Mr Thomas. On the Thursday 31 March 2005, in support of the application, Professor McGorry, clinical psychiatrist, was called as to Mr Thomas’ psychiatric condition. (Professor McGorry was unavailable on the Friday to give evidence and was called on the Thursday against the event of Mr Thomas being committed for trial). On the Friday Mr Robert Stary, solicitor for Mr Thomas, was called as to the then personal and employment circumstances of Mr Thomas in Melbourne. Mr Thomas did not give evidence on the bail application. That day the Magistrate granted Mr Thomas bail pending trial.
In and in relation to the bail application, two critical events occurred: first, the articulation by Professor McGorry in cross-examination of a history of assaults given in psychiatric consultation with Mr Thomas; and second, the rejection outside court by Mr Thomas of that history at the conclusion of the Thursday 31 March 2005 hearing. I deal with those matters in turn.
In summary, before the Magistrate in cross-examination Professor McGorry gave evidence that Mr Thomas had given him a history of “multiple physical assaults” in Pakistan, of the order of 25 to 50 such assaults. Mr Thomas did not give evidence at the committal or on the bail application before Her Honour. Before me on the voir dire, Mr Thomas gave evidence that he did not give the Professor that history and that such assaults never occurred. However the evidence before the Magistrate when she granted bail was that Mr Thomas had given such a history. Of course, and as the learned Magistrate well appreciated, the history given by Mr Thomas to Professor McGorry, in the absence of evidence before the Magistrate by Mr Thomas, was not evidence of the truth of the history. I detail the relevant evidence as follows.
In evidence in chief before the learned Magistrate Professor McGorry gave opinion evidence as to Mr Thomas’ then psychiatric state. The Professor rehearsed the psychiatric consultations with Mr Thomas and stated that his diagnosis derived from a two-part process, namely the taking of a history and the conducting of a mental state examination. He said “ … the link between the history and the mental state is the key thing” (D.531). In evidence in chief before Her Honour he did not detail the history taken. However, his report of 17 February 2005 was before the Magistrate (and was exhibit 7 before me on the revocation application) and which in part stated:
“He was interrogated on numerous occasions for long period (sic) during which he was blindfolded, hooded and shackled. These interrogations were conducted by Americans and Pakistanis, and during these sessions, he was threatened with execution, electrocution and was physically assaulted and subject to attempted strangulation. Threats were made about future sexual abuse of his wife and several physical threats were made towards him, for example that a new machine, developed to crush a man’s testicles, would be applied to him in the future. The result of these threats and assaults were that he became absolutely terrified and completely helpless. He clearly states that no Australians were present during these interrogations.”
In cross-examination before the learned Magistrate the following occurred (D.542-544):
“What did you determine to be the traumatic event; I take it with post traumatic stress disorder there has to be a traumatic event? --- Or a series of them.
All right. What was the traumatic event, or series of traumatic events in this case as reported to you by Mr Thomas? --- As reported to me by Mr Thomas, the period of incarceration and, as he reported it, physical and mental abuse.
All right. Well, let us break that down, and I am talking about the defendant. What did he tell you in relation to the period over which this incarceration, the torture and the incarceration occurred? --- The impression that I had that it was at least several weeks.
No, not the impression. What did he tell you? --- Well, what he told me led me to ---
No, what did he tell you; what words did he use, please? --- I can’t remember the specific – the exact words, but it appeared to have been occurring over a period of several weeks and maybe months.
All right. Now, who was it that was imprisoning him? --- He was confused about that, but he described that there were American present at the interrogations and also Pakistanis.
Where did this occur? --- This occurred in Pakistan, as he reported it to me.
And what did he say actually was the torture, I mean over and above incarceration, what was the torture? --- Well, this is described in the report. He was ---
No, tell me what did he say was the torture? --- He was interrogated for periods of many hours at a time with a hood over his head. He was physically assaulted, abused, threatened verbally. He was – on one occasion he reported that the interrogators attempted to strangle him.
All right. Now, let us break down what you have said there. Who was it that physically assaulted him? --- What do you mean?
Did he tell you; you said he was physically assaulted? --- Yes, the interrogators.
Who, did he say who? --- He didn’t mention a name, no.
Did he say what they had done; what was the physical assault? --- Yes, I have just told you that.
What was it, I am sorry? --- He attempted to – he was strangled with the cord of the hood.
All right. And that was on one occasion, was it? --- That was on one occasion.
All right. Any other details of physical assaults? --- Yes. He reported multiple physical assaults.
Over what period of time? --- Over several interrogations is what I was told.
And when was that? --- During this period of incarceration, before he was returned to Australia; in the months leading up to that I think.
Well, when you say repeated assaults, what did the form of the assaults take? --- Just physical blows, that sort of – that is what he was reporting.
Where on his body? --- Body, head, multiple sites.
Did he say they were forceful blows? --- Yes.
It hurt? --- Yes.
Did he bleed? --- He didn’t mention that to me, no.
And did he say how many assaults in total, how many physical assaults were there? --- Very – there seemed to be numerous. I couldn’t put an absolute figure on it. I didn’t ask him exactly how many.
More than 50? --- Probably less than 50.
More than 25? --- Yes, I would say around that – that is the impression I got. I didn’t specifically ask him the exact number.
Did he tell you he had ever seen bruising on his body? --- He didn’t mention that but I didn’t specifically ask him about that.
Did he say whether or not he had access to medical treatment? --- He didn’t mention that, but I got the impression that there was no medical treatment provided.”
In Professor McGorry’s clinical notes of 16 February 2005 (exhibit “A” before me on the revocation application but not tendered at committal) made during the examination that day of Mr Thomas, the following words appear: (on page 2) “hooded, blindfolded and handcuffed”; “chained”; “tied up”; “electrocution”; “strangled”; “no beating”; “threats, yelling, swearing”; (on page 3) “said wife would be raped by their agents”; “threat testicles crushed, torture”; “handcuffed”; (on page 4) “hooded”. Plainly, there was no basis in the notes for the evidence of history, given by Professor McGorry in cross-examination before the Magistrate, of multiple physical assaults of the order of twenty five to fifty.
Professor McGorry is a clinical, not a forensic, psychiatrist. His notes were taken primarily for clinical, not court, purposes. The clinical psychiatrist’s focus on history is not that of a lawyer. It does not address factual data as potential evidentiary material. Professor McGorry gave evidence before me, which I wholly accept, that the impugned history did not and does not affect his diagnosis. In a report dated
6 October 2005 headed “Confidential Psychiatric Report” and tendered by the defence before me, Professor McGorry stated in reference to the history given him by Mr Thomas:
“Indeed, he picked me up on an initial error that I made in my first assessment of this experience, in which I got a detail wrong, and was at pains to corrected (sic) me on this point so that his account was accurate and truthful.”
Whilst giving full allowance to the differential significance of history to a clinical psychiatrist and a lawyer, I must say that the characterisation of twenty five to fifty physical assaults as “a detail” is manifestly inadequate. Moving on, Professor McGorry gave evidence before me that in cross-examination before the Magistrate he was giving evidence from memory and from impression. He further gave evidence, which I wholly accept, that
“ … every single torture survivor that I have assessed – and I have assessed hundreds over the years – has been through this unsystematic period of beating, you know, prior to the more systematic torture that [Mr Thomas] had been able to describe and which he has confirmed since.” (T.957-958).
I consider that the otherwise universal histories given to Professor McGorry intruded themselves upon his memory in cross-examination before Her Honour and that he fell into factual error in the aspect of assaults in the history given to him by Mr Thomas. That was a serious error but it is understandable. I am affirmatively satisfied that at no time did Professor McGorry intentionally mislead Her Honour. Mistakes do occur.
In the evidence of Mr Thomas before me on the voir dire Mr Thomas was not taken to the matter of the history he had or had not given to Professor McGorry. Before me, the matter first was addressed in cross-examination. Mr Thomas then said that he had not given Professor McGorry the history cited in paragraph 15 above and which Professor McGorry had stated in cross-examination before the Magistrate. Mr Thomas proceeded (T.743):
“I made a beeline after the court and I said to Professor McGorry and
to Robert Stary that you must be mixing – because Professor McGorry has got 18 years with victims of torture. He must be mixing me up with someone else. ‘I never told you I got beaten. I definitely told you I got strangled’, and I told Robert Stary and Professor McGorry.”
Thus before me there was evidence that one or more of Mr Thomas’ lawyers was – and others of his lawyers might have been - in possession of information from Mr Thomas as to the inaccuracy of evidence given before the learned Magistrate which, although not admissible as to its truth, should have been brought to the attention of the Magistrate. Accordingly I raised the matter in clear terms with senior counsel for the accused. Thereafter, in order that the matter be pursued, Mr Stary, learned solicitor for Mr Thomas, ceased to act. Messrs Galbally Rolfe helpfully stepped into the breach. Now having heard the relevant evidence on the revocation application, I am affirmatively satisfied that none of the lawyers was present at or attended at the meeting briefly held after court on that Thursday afternoon, 30 March 2005 which Mr Thomas has described. Mr Thomas gave evidence before me that Mr Stary was present. Professor McGorry gave evidence before me that Mr Stary was not present. Mr Stary has given evidence before me that he was not present. I unequivocally accept Mr Stary’s evidence in that respect and in every other respect. I think Mr Thomas got his facts wrong. I do not consider Mr. Thomas lied to me; I think he erroneously thought Mr Stary was present when Mr Stary was not. Accordingly, on the matter of the beeline conference the lawyers fall entirely out of the picture.
The lawyers were present in the Magistrates’ Court when the impugned evidence of Professor McGorry was given. However I am informed by counsel and I accept that the first occasion that the errors in the history were directed to the minds of the lawyers was in October 2005 when it arose before me. Although the matter of the impugned history is now well isolated and articulated, on 31 March and 1 April 2005 it was not so isolated.
Although this has been a stressful enquiry for the persons affected it has been necessary. The significance of the impugned history is not to be considered by reference only to evidentiary rules as to hearsay (referred to in paragraphs 13 and 19
above) or to clinical psychiatric modes (as in paragraph 16 above). There is a real and legitimate public dimension to evidence of torture and abuse given in court and committal. Further, this Court will not sit idly by if a Magistrate is misled. Having investigated the matter I am affirmatively satisfied that the learned Magistrate was not deliberately misled.
That, I think, leaves us with the final, and I consider conclusive matter, and that is that the accused has been on bail for a substantial period of time. Bail was first granted on 14 February 2005. Since then Mr Thomas has undergone a committal; he has undergone a voir dire; he has undergone a stressful bail revocation application; he has constantly and loyally fulfilled his obligations under the terms of his bail; and he has never once been late to court. I consider in the holistic and stressful circumstances of this odyssey that that good conduct by Mr Thomas constitutes exceptional circumstances within s.15AA(1) Anti-Terrorism Act 2004 and acceptable risk within s.4(2)(d) and s.4(3) Bail Act 1997 sufficient to refuse the application of the prosecution for bail to be revoked. I do not consider flight a risk.
Accordingly I refuse the application of the prosecution that bail be revoked pending trial on 30 January 2006.
Bail is continued on the same terms and conditions as presently it is. Mr Thomas’ and his wife’s third child is due in two weeks. There have been difficulties with the pregnancy. Mr Thomas is required to be back at Court after Christmas and after, I trust, safe delivery of a child, on 30 January 2006.
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