Director of Public Prosecutions v Thomas

[2005] VSC 494

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. 1

JUDGE:	Cummins J
WHERE HELD:	Melbourne
DATE OF HEARING:	29 September 2005
DATE OF RULING:	29 September 2005
CASE MAY BE CITED AS:	DPP v Thomas
MEDIUM NEUTRAL CITATION:	[2005] VSC 494

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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) – national security – s.93.2(3) Commonwealth Criminal Code – s.85B Crimes Act 1914 – s.3(1) National Security Act 2004 – temporary prohibition of publication of proceedings.

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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:

1. I am persuaded on the basis of the submissions in particular made by Mr Tracey that I temporarily ought to make the orders which are sought by the parties.  By temporarily, I mean until the commencement of the jury trial.  The principle of sub judice applies in any event to the proceedings over the next month.  That means that no publication can occur of the next month of the proceedings because of the imminence of the jury trial.

1. I consider that the Court will be much better informed by the end of the pre-jury proceedings as to whether the concerns as to national security, howsoever defined – section 93.2(2) of the Commonwealth Criminal Code, section 85 of the Crimes Act 1914 or the criteria set forth in part 3 of the NSI Act 2004 or the criterion set forth in section 3(1) of that Act – are satisfied.  It seems to me that it is desirable before making a final judgment on those matters that I know what the material is in fact and in detail, and accordingly I propose to make the orders on that temporary basis.

1. I give Mr Quill and Ms Byrne liberty to come back to the Court when that material is in and the matter can then be debated with the benefit of clear factual data before the court, which can then be assessed as to whether it does or does not satisfy the criteria set forth in the sections I have cited.  I think there is very considerable merit in what Mr Quill and Ms Byrne have said, but I think it is premature at the moment to make a final determination of those matters until I see it all, as a matter of evidence, on the pre-empanelment proceedings.

1. Accordingly, I propose to make the orders sought until the empanelment of the jury, with liberty to other parties to apply as I have stated in the interim, and if it turns out that there is a trial, well and good.  If it turns out that there is not a trial, I will in any event deal with the matters that have been discussed today, in the interests of open justice.  But I will not make a decision now until I see all the evidence before me, for the reasons stated by Mr Tracey.