Director of Public Prosecutions v Thomas

[2006] VSC 230

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IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1458 of 2004

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOSEPH TERRENCE THOMAS

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JUDGE:	CUMMINS  J
WHERE HELD:	Melbourne
DATE OF PUBLICATION:	26 June 2006
CASE MAY BE CITED AS:	DPP v Thomas
MEDIUM NEUTRAL CITATION:	[2006] VSC 230

RULING NO. 16

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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) – publication of pre-empanelment proceedings – public interest immunity – considerations applicable.

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APPEARANCES:	Counsel	Solicitors
For the Director	Mr N. T. Robinson	Commonwealth Director of Public Prosecutions
For the Accused	Ms P. Murphy	Robert Stary and Associates
For the Commonwealth Attorney-General, Department of Foreign Affairs and Australian Federal Police (by leave)	Mr R.Tracey QC with Dr S. Donaghue	Australian Government Solicitor

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HIS HONOUR:

1. This Ruling relates to the publication of evidence, submissions and rulings in the pre-empanelment phase of this trial.

1. Hitherto the evidence, submissions and rulings have substantially been prohibited from publication by Orders I made to that effect.  Much of that material was in any event subject to the sub judice principle and on that account was not publishable before verdict.  The question of prohibition from publication (on national security grounds and on the sub judice ground) was the subject of consideration at the outset of proceedings. In the reasons for the Order made on 22 September 2005 effecting the holding of a s.21 National Security Information (Criminal and Civil Proceedings) Act 2004 conference I stated three principles as a matter of general guidance for the parties (22 September 2005 T.23-24). I had the benefit of submissions of counsel for the parties, of counsel by leave for the Commonwealth Attorney-General, and of counsel by leave for The Herald and Weekly Times Pty Ltd., Nine Network Australia Pty Ltd and Seven Network Ltd and for the Age Company Ltd. In Ruling No. 1 made on 29 September 2005 for the reasons there stated I made certain non-publication orders as to the pre-empanelment proceedings. As this was a jury trial, effectively that meant the orders operated at least until verdict. On the date of sentence, 31 March 2006, I stated (T.1905) that I would review those orders so that the pre-empanelment proceedings could be made public, subject to national security considerations. The closed court part of that exercise has now been completed. The exercise has involved careful and detailed consideration of a substantial amount of material. Mr Tracey with Dr Donaghue appeared by leave in this phase of the proceedings not only for the Commonwealth Attorney-General (on N.S.I. Act matters) but also for the Department of Foreign Affairs and the Australian Federal Police on public interest immunity matters. Mr Thomas was represented throughout the proceedings. This post-sentence phase of the proceedings was conducted in closed court in order to enable counsel, particularly Mr Tracey, to articulate properly the matters sought to be put. On the basis of submissions put on behalf of the Commonwealth Director of Public Prosecutions, Mr Thomas, and the parties for whom Mr Tracey and Dr Donaghue appear, I have reached the conclusions I state below. Of course, media interests and any other appropriate party have not yet been heard on these matters. I here state my reasons and conclusions, with appropriate orders, and publish them. If the parties being media entities which appeared before me in September 2005 wish to seek further publication than that which I presently order, they are welcome to come before me. Doubtless they would first wish to consider that which is now published.

1. I order that, apart from the material stated in paragraph 4 below, the submissions, evidence and Rulings in the pre-empanelment proceedings in this matter no longer be prohibited from publication.  By this Order the vast majority of the pre-empanelment proceedings are made public.  That includes the evidence given at those proceedings, including the evidence of Mr Thomas, and the Reasons for Ruling No. 3 in relation to the admissibility of the Australian Federal Police interview of Mr Thomas in Pakistan on 8 March 2003.

1. The parts of the pre-empanelment proceedings which remain prohibited from publication are the following:

(a)material revealing the names, pseudonyms or identities of A.S.I.O. operatives;

(b)material likely to prejudice national security;

(c)material revealing security methodology or ongoing security operations;

(d)material revealing the contents of classified documents.

I have proceeded upon the principle that the only material which should remain unpublished is material which clearly falls within the principles of public interest immunity.  The principles are well known.[1] 

[1]See generally Sankey v Whitlam & Ors (1978) 142 CLR 1; Alister & Ors v The Queen (1984) 154 CLR 404; Conway v Rimmer (1968) AC 910; and Rogers v Home Secretary (1973) AC 388.

1. Appended to this Ruling is the published material.