Director of Public Prosecutions v Thomas

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1458 of 2004

DIRECTOR OF PUBLIC PROSECUTIONS (COMMONWEALTH)

JOSEPH TERRENCE THOMAS

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Ruling No. 4

JUDGE:	Cummins J
WHERE HELD:	Melbourne
DATE OF HEARING:	10 November 2005
DATE OF RULING:	10 November 2005
CASE MAY BE CITED AS:	DPP v Thomas
MEDIUM NEUTRAL CITATION:	[2005] VSC 525

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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) – application for adjournment of jury trial on ground of publicity concerning concurrent arrest on terrorism charges – application granted.

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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. Donaghue	Australian Government Solicitor

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HIS HONOUR:

After substantial pre-empanelment proceedings in this matter, the jury trial is due to commence next Monday, 14 November 2005, today being Thursday, 10 November. In the past 48 hours and continuing there has been saturation media publicity by television, radio and print of events in Melbourne and Sydney this week connected with the arrests after lengthy investigations of persons on charges of terrorist-related activities. Some front-page headlines are “We have disrupted the final steps of a large-scale attack” (“The Age” yesterday), “Osama’s Aussie offspring” (“The Australian” yesterday), “Holy war plot” (“The Herald-Sun” yesterday), and “Terror alarm on map” (“The Herald-Sun” today, referring to a map of Commonwealth premises in Melbourne allegedly found by police in a search during one of the Melbourne arrests two days ago). Further, the accused Mr Thomas is described on the front page of today’s “The Australian” as a “homegrown extremist”. The newspapers have been tendered before me.

In the circumstances, Mr Lasry, senior counsel for the accused Mr Thomas, has applied for the imminent jury trial to be adjourned to 30 January 2006.

Long experience in the Courts has shown that juries are conscientious, disciplined and honourable in their discharge of their function as the judges of the facts. Trials are often conducted in an atmosphere of substantial current or antecedent publicity, including debate of matters of public importance. Trials are often conducted where there is an evident or asserted connection between them and other cases or other matters of possible prejudice. My experience is that with proper judicial direction, proper trial management, and relying upon the conscientiousness of Australian juries demonstrated year in and year out, accused persons do get fully fair trials – in the plenary sense of the word fairness – in difficult circumstances. And, indeed, in this Court throughout this year that has been demonstrated.

However, I think in the end one’s instincts are a good guide. My instinct in this case at present is that the current situation is pregnant and oppressive. In fairness to the accused and in fairness to the jury and in fairness to the community, and all the persons affected by the trial, my instinct is it would be not right to proceed with it at the moment. I entirely understand what Mr Maidment most responsibly has said, that atmosphere can settle quickly and experience shows it does settle quickly. But the events of the last two days are exceptional circumstances and I think the court should be attuned to the character and timing of those circumstances.

Accordingly, I am persuaded that the trial ought to be adjourned until 30 January next year. The Court cannot, of course, control external events. I regret the inconvenience to witnesses, particularly the Ambassador presently travelling back to Australia, but I think fairness and justice require that the date of next Monday be vacated and in its place the 30 January 2006 be fixed.

The case of Director of Public Prosecutions v Thomas involved the defendant being charged under the Commonwealth Criminal Code with terrorism offences. The case was heard in the Supreme Court, where the defendant sought an adjournment of the jury trial. This application was made on the ground of the publicity surrounding the defendant's concurrent arrest on terrorism charges, which the defence argued would prejudice the fairness of the trial. The key legal issues before the court were whether the publicity was so prejudicial that it would make it impossible for the defendant to receive a fair trial and whether the court should exercise its discretion to adjourn the trial under the circumstances.

The court considered the extent and nature of the publicity, the timing of the publicity in relation to the trial, and the potential impact on the jury's impartiality. It was noted that the publicity was extensive and highly prejudicial, with details of the defendant's arrest and the terrorism charges being widely reported. The court held that the publicity had the potential to significantly influence the jury's decision-making process and that the risk of prejudice outweighed any public interest in a speedy trial. The court found that the defendant had made out a compelling case for an adjournment and granted the application. The court emphasised the importance of ensuring that the defendant received a fair trial and that the publicity did not affect the jury's ability to make an impartial decision based solely on the evidence presented in court.

The court granted the application for an adjournment of the jury trial to a later date to be determined. The adjournment was intended to allow the publicity to dissipate and to give the jury sufficient time to distance themselves from the prejudicial information before commencing deliberations. The court did not set a specific date for the new trial but instructed the parties to prepare for a hearing to determine a suitable date. This outcome ensured that the defendant's right to a fair trial was protected and that the jury's impartiality was not compromised by the prejudicial publicity surrounding the case.

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Legal Principle Established