Director of Public Prosecutions v Thomas

[2005] VSC 523

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. 3

JUDGE:	CUMMINS J
WHERE HELD:	Melbourne
DATE OF RULING:	7 November 2005
CASE MAY BE CITED AS:	DPP v Thomas
MEDIUM NEUTRAL CITATION:	[2005] VSC 523

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Criminal law and procedure – evidence – admissibility of police interview – terrorism offences – Commonwealth Criminal Code s.102.6(1) and s.102.7(1) – Passports Act 1938 s.9A(1)(e) – voluntariness – no access to lawyer – public policy – Crimes Act (Commonwealth) 1914 Part IC and s.23G(1)(b).

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APPEARANCES:	Counsel	Solicitors
For the Director	Mr R.J.H. Maidment S.C. with Mr N. T. Robinson	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. Since last Friday I have re-read the transcript and relevant documents and re-heard the audio recordings of the evidence led or tendered on the voir dire in the light of the oral and written submissions of counsel for the prosecution and for the defence.  I had done so previously but did it again after the conclusion of all submissions so that I could consider the whole of the evidentiary material with the benefit of those submissions.  I commend all prosecution and defence counsel and their learned instructors for the quality and comprehensiveness of those submissions.

1. I rule that the interview of the accused conducted in Pakistan on 8 March 2003 by Federal Agents Williams and Lancaster between 4.40 pm and 6.10 pm, consisting of 578 questions and answers and being exhibit OO on the voir dire, is admissible in evidence at the jury trial of the accused.  I so rule for the following reasons.

1. First, I find that the answers given by the accused in that interview were voluntary as contemplated by MacPherson v R[1].  That is, were made by the accused in the exercise of a free choice to speak or be silent.  I so find having considered all the concomitant and all of the antecedent circumstances in which the accused found or had found himself after, (in the words of Brennan J, as then he was), in Collins and Ors v R[2] “careful assessment of the effect of the actual circumstances upon the will of the particular accused”.  Having given attention to the content, tone, timing and circumstances of the accused answers as revealed by the cassette tapes, exhibit OO, I am affirmatively satisfied that the answers of the accused were made voluntarily.

   [1](1981) 147 CLR 512 at 519 per Gibbs CJ and Wilson J.

   [2](1980) 31 ALR 257 at 307.

1. Next, I consider that the actions and questions of the interviewing officers, Federal Agents Williams and Lancaster, were proper and lawful.  The officers did not, again in the words of Gibbs CJ and Wilson J in MacPherson[3], hold out inducement to or exercise duress, intimidation, importunity or pressure upon the accused.  The actions and questions of the officers were proper and fair.  In particular, the officers clearly informed the accused of the different character and function of the interview from the six previous interviews conducted by ASIO officers, being exhibit C on the voir dire.  In my view the accused fully understood the difference.  The AFP officers clearly informed the accused of his right to decline to answer questions.  In my view the accused, at all times throughout the interview, fully understood that right.  The accused answered the questions because he considered there was a potential advantage to him in doing so.  The content, tone and timing of the accused answers as revealed by exhibit OO affirmatively demonstrate that exercise of free will by the accused.  I do not consider that the free will of the accused, as contemplated by MacPherson v R[4], in the interview, was trammelled or derogated from by the six previous interviews of him by the ASIO officers, exhibit C, or by any antecedent conduct.

   [3]At 519.

   [4]Above cited.

1. Next, I consider the provisions of part IC of the Crimes Act (Commonwealth) 1914 applied to the interview on 8 March 2003.  That is because the accused was a protected suspect within the meaning of section 23B(2) of the Act.  The terms of section 23B(2)(a), (b) and (c)(i) were fulfilled.  Thus, ordinarily, the accused should, pursuant to section 23G(1)(b) of the Act, have been informed by the investigating officers that he may communicate with or attempt to communicate with a legal practitioner of his choice and arrange or attempt to arrange for a legal practitioner to be present during the questioning, and the questioning should have been deferred for a reasonable time to allow that communication or presence to occur.  The officers, rather than inform the accused of that dual right, informed him that “this right will not be available to you today” (question 29).  Normally, failure to avail an interviewee of that right would be fatal to the admission of a subsequent interview.  That is, because the right is an important right in the system of justice.  However, that requirement is not absolute.  Here, the officers had ascertained that that provision would not be permitted in Pakistan.  They were faced with the choice of conducting an interview or postponing it for an indefinite period to an indefinite place.  Had the officers sought to utilise that situation for a collateral purpose, or as a pretext, or opportunistically to defeat or deflect the requirements of part IC of the Act I would have had no hesitation in ruling the interview inadmissible.  Further, I would unhesitatingly excuse the interview if I considered it unfair to admit it.  However, I consider the officers acted reasonably, honestly and fairly in all the circumstances.

1. Further, I do not consider it was unfair to the accused to conduct the interview in the absence of legal recourse as defined by section 23G(2).  Doubtless the accused would have availed himself of that legal recourse were it proffered.  Presumably the legal practitioner would have advised the accused appropriately.  Whether, then, the accused would have answered questions or declined to answer questions is unknown and certainly I do not speculate in that regard. 

1. However, the interviewing officers in my view acted properly.  The accused acted voluntarily.  The effective choice was between no interview in Pakistan or an interview there and then and that situation was not contrived or engineered by the officers.  In all the circumstances I consider it is proper, fair and just to admit the interview, exhibit OO, into evidence.

1. I so rule.

1. I would wish to review the considerable relevant evidentiary material in detail which I shall do in writing and publish during the course of the trial.

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