Director of Public Prosecutions v Thomas

[2006] VSC 88

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

RULING NO. 15

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JUDGE:	CUMMINS J
WHERE HELD:	Melbourne
DATE OF HEARING:	24 February 2006
DATE OF RULING:	24 February 2006
CASE MAY BE CITED AS:	DPP v Thomas
MEDIUM NEUTRAL CITATION	[2006] VSC 88

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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) – media publication after verdict of exhibits including electronic exhibits – considerations applicable.

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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. Donahue	Australian Government Solicitor

HIS HONOUR:

1. In this matter Mr J. Quill, appearing for Nine Network Australia Pty Ltd and Channel Seven Melbourne Pty Ltd has sought the release for publication after verdict in this case of five items.  One is the audio recording of the record of interview with the accused conducted on 8 March 2003 by Australian Federal Police in Karachi, Pakistan, of some 80 minutes in duration, Exhibit B.  Two, a photograph of the Qantas ticket of the accused seized at the Karachi Airport on 4 January 2003, Exhibit G.  Three, a photograph of the US $3200 in $10 notes and two $20 US notes seized at that time and place, Exhibit H.  Four, a photograph of the accused's passport, Exhibit D.  And five, a photograph of part of the photograph board identified by the witness, Mr Goba, Exhibit “A”;  being the photograph L which is of the accused.

1. I was, without lengthy persuasion by Mr Quill, prepared to release items 2, 3, 4 and 5 which have been requested by way of being able to be photographed and provided to the media so that they may be published following verdict.  The media have stated that they shall not publish them before verdict and I will proceed upon that basis, and I am confident that will be fulfilled and respected.  Mechanical arrangements can be made, because those items are presently exhibits before the jury, but the jury do not have them overnight, so that can be done through my Associate for the media.  The reason, as a matter of policy and law, I consider those requests should be granted is because the media have a function in effectively standing in the place of the public who cannot physically attend the Court, and accordingly the media ought to be permitted to publish to the public that which the public would see in any event if they were able all to be here.

1. The first item is the audio recording, Exhibit B.  Generally speaking I am firmly of the view that videos or audios of accused persons who are in custody ought not be released to the media for playing on the News or other media programs.  Of course, the answers by the accused in such circumstances are voluntary, otherwise the Court would not have admitted the answers in the first place.  But the situation is coercive, namely the accused has normally been arrested and is giving voluntary answers in the context of being arrested. 

1. More fundamentally I have traditionally declined such media requests because I have always considered there is a significant prospect that the playing of such visual items in particular, but also audio items, in the media has a significant antipathetic potential to the administration of justice in that it is quite likely that persons in the future might say to themselves, when asked whether they seek to exercise their important right of silence, that they would be prepared to exercise the right to speak for purposes of the criminal investigation and potential trial, but will exercise the right of silence because they do not want themselves to be on national television, including to their dear ones.  I do not consider that is a fanciful prospect given the power of the media, particularly of television, in the community.  So traditionally I have refused such applications and I do not resile from that in this ruling in any way.

1. However, I do consider that Mr Quill's eloquent submission this afternoon has substantial weight in one particular balance that he has struck.  He has submitted that this is different from the norm in that first, there has been, to use his words, a "huge public interest" in the operation of Australia law overseas and its enforcement in the arrest and interviewing of the accused in Pakistan, not in Melbourne or Australia.  Second, that the psychological precedent problem that I have previously stated is significantly less likely to impact in this sort of case where it is (a) not visual; and (b) is offshore and therefore exceptional; and he submitted, in practical terms, ordinary accused persons in ordinary interview situations in ordinary police stations are not likely to be affected by this unusual set of circumstances as a precedent affecting their decision to exercise the right of silence or not.  I think Mr Quill's argument is a good one and well presented and I consider I should accede to it.  Accordingly, I propose to permit the media also to publish after verdict the sounds of the audio recording, being Exhibit B.

1. I do not consider the circumstance that Mr Thomas does not oppose the application as relevant in favour of the application.  That is no disrespect whatever to

Mr Thomas.  I simply do not like accused people being placed in the position of being asked to agree to things when they are on trial.  I think that is unfair on accused people.  They have got enough to deal with without these extraneous things being visited upon them.  So, although I have noted what Mr Lasry has said, I do not take that lack of opposition into account in favour of the application.

1. For those reasons I grant the application sought.  The mechanical arrangements can be made, as I have said, and if the jury comes in with verdicts, whatever the verdicts are, guilty or not guilty, the material may be published in the way I have stated.  If the jury do not come in with verdicts the material cannot be published because there would have to be, presumably, another trial.