DPP (Cth) v Thomas

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1526 of 2004

IN THE MATTER of the Judiciary Act 1903 (Cth)
and
IN THE MATTER of the Crimes Act 1914 (Cth)
and
IN THE MATTER of the Bail Act 1977
and
IN THE MATTER of an appeal by the Director of Public Prosecutions for the Commonwealth of Australia against the grant of bail to Joseph Terrence Thomas
THE DIRECTOR OF PUBLIC PROSECUTIONS FOR THE COMMONWEALTH OF AUSTRALIA	Appellant
V
JOSEPH TERRENCE THOMAS	Respondent

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JUDGE:	TEAGUE J
WHERE HELD:	Melbourne
DATE OF HEARING:	15 March 2005
DATE OF JUDGMENT:	15 March 2005
DATE OF REASONS:	31 March 2005
CASE MAY BE CITED AS:	DPP (Cth) v Thomas
MEDIUM NEUTRAL CITATION:	[2005] VSC 85	1^st Revision 6 April 2005

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APPEAL – Bail – Appeal by Commonwealth Director of Public Prosecutions against grant of bail by the Chief Magistrate– Finding of exceptional circumstances open to the Chief Magistrate - Appeal dismissed

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr R. Maidment S.C.	Solicitor for the Director of Public Prosecutions (Cth)
For the Respondent	Mr L. Lasry Q.C. with Mr M. Taft	Robert Stary and Associates

HIS HONOUR:

These are my reasons for having dismissed an appeal against the making of a bail order. The appeal was brought by the Commonwealth Director of Public Prosecutions (“the appellant”). The bail order was made in favour of Mr Thomas by the Chief Magistrate on 14 February 2005.

Three charges were laid against Mr Thomas. The first was that between November 2002 and January 2003 at Karachi in Pakistan and elsewhere, he did, contrary to paragraph 102.6(1) of the Criminal code (Cth), intentionally receive funds from a terrorist organisation, namely, Al Qa’ida, knowing that it was a terrorist organisation. The second was that between 5 July 2002 and 4 January 2003 at Karachi and elsewhere, he did, contrary to paragraph 102.7(1) of the code, intentionally provide support or resources to a terrorist organisation, Al Qa’ida, that would help it directly or indirectly engage in planning, assisting in or fostering the doing of a terrorist act, knowing it was a terrorist organisation. The third was that on 4 January 2003 at Karachi and elsewhere, he did, contrary to paragraph 94(1) of the Passports Act 1938 (C’th) have in his possession or under his control an Australian passport that he had falsified. There was evidence before me that the respondent intended to plead guilty as to the third charge.

The respondent had made two previous applications for bail. The first was made to the Chief Magistrate in November 2004. I will refer to it as the November hearing and as to the reasons given by the Chief Magistrate for denying bail as the November reasons. The second was made to Hansen J in this court in December 2004. I will refer to it as the December hearing and as to the reasons given by Hansen J for denying bail as the December reasons. The third application was made to the Chief Magistrate in February 2005. I will refer to it as the February hearing, and as to the reasons given by the Chief Magistrate for granting bail as the February reasons. In the February reasons, the Chief Magistrate indicated that he was satisfied that there were the required exceptional circumstances warranting the granting of bail on strict conditions, and that he was not satisfied that any relevant risk including the risk of Mr Thomas not answering bail, was unacceptable. The appellant appealed against that decision.

There was no dispute as to the applicable law. During the submissions, I indicated that, prior to the hearing of the appeal, I had reviewed the principles laid down in a number of cases that I now note: Beljajev v Director of Public Prosecutions (Unreported, Full Court, 8 August 1991), Director of Public Prosecutions v Fernandez (Unreported, Bongiorno J, 14 June 2002), Fernandez v Director of Public Prosecutions (2002) 5 VR 374, Application for bail by Andrea Mantase (Unreported, Vincent J, 21 September 2000), Director of Public Prosecutions v Mokbel [2001] VSC 403 (Cummins J), and R v Taylor & O’Meally [1958] VR 285.

In order to be granted bail, Mr Thomas had to show exceptional circumstances. As Vincent J said in Mantase at page 1:

“Of their very nature, exceptional circumstances are incapable of clear definition and can arise either as a consequence of the presence of some particular feature which may be regarded as exceptional of itself, or because there exists a combination of circumstances which take the matter so far beyond the normal situation that they can be regarded as exceptional.”

An applicant for bail, who is not successful at a first attempt, can make further applications. As the Full Court said in Beljajev, at pages 9 and 10:

“In Victoria, at least in some circumstances, the right to make a fresh application for bail where an earlier application has been refused is now made dependent upon…the existence of new facts or circumstances – see the Bail Act 1977, section 18(4). The right of an accused to make a fresh application for bail where an application has previously been refused underlines the fact that an accused person deprived of his liberty prior to trial stands in a situation which is subject to constant variation, where factors which may tend in favour of a grant of bail may at a particular stage become predominant, whereas at another, earlier time they were not; or where new factors may emerge and tip the balance in favour of a grant of bail.”

The requirements as to evidence are relaxed. As the Full Court noted in Beljajev, at page 9, a court considering a bail application is entitled to act upon material of an informal nature.

The appellant may succeed on an appeal if he can show that, on any ground, whether of law or fact, the discretion of the primary decision-maker has miscarried, and can persuade the court that a different order should have been made. See Fernandez at page 390 [31]. See also Taylor and O’Meally at page 289, where the test is set out in more detail.

I turn to the background of Mr Thomas and of the charges laid against him. Mr Thomas was born in May 1973 in Melbourne. He has no criminal convictions. He was raised in Werribee. Apart from when travelling in Australia and elsewhere, he has remained in or near Werribee. His father was a teacher. He was raised as an Anglican. In time he developed a strong interest in the Muslim faith. He became a convert to Islam. He chose to associate, in Melbourne and elsewhere, with other Muslims. In January 1995 he married. His wife, Maryati, had been born in Indonesia. She was of the Muslim faith. She had studied in Melbourne. After the marriage, Mr Thomas travelled outside Australia with his wife. In the course of travelling, Mr Thomas, in company with his wife, met briefly, in Malaysia, with Ali Bakr Bashir, then with his wife. It appears that the two wives had been friends in Indonesia. Back in Australia, a child was born to Mr and Mrs Thomas. In 2001, Mr Thomas decided to travel with his wife and child to Afghanistan. Mr Thomas had taken a particular interest in the position of the Taliban and the Northern Alliance. The three left Australia in March 2001. They took a flight into Pakistan. They crossed into Afghanistan. Mr Thomas left his wife and child with others. He travelled to a camp outside Kandahar. There, for some weeks in mid 2001, he engaged in a form of small arms training. While he was at the camp, it was visited by Osama bin Laden. After that period of training, Mr Thomas rejoined his wife and child. The three were still in Afghanistan on 11 September 2001.

Mr Thomas then took steps to leave Afghanistan with his wife and child. He was reasonably readily able to arrange for his wife and child, but not for himself, to cross into Pakistan. He was thus separated from them. He was to remain separated until the middle of 2003. After he crossed into Pakistan, he was in a dilemma as to how to proceed. He chose not to go to the Australian embassy. For the balance of 2001 and all of 2002, he remained in Pakistan. He moved from place to place. He associated with many people. The nature of those associations and the affiliations of those associates are potentially contentious. At one time, he made plans to travel out of Pakistan, but opted not to go ahead with those plans.

The legislation creating the offences, as to which the charges against Mr Thomas are laid, was passed in July 2002.

In January 2003, Mr Thomas took steps to travel to Australia, via Indonesia. The nature of those steps, and the affiliations of the persons that Mr Thomas liaised with as to those steps, are also potentially contentious. On 4 January 2003, when Mr Thomas went to the airport in Karachi, he was arrested by Pakistani authorities. Between January and June 2003, Mr Thomas was detained in Islamabad. He was questioned at length by authorities from at least Pakistan and Australia. Transcripts, 457 pages long, were prepared of at least some of that questioning. Those transcripts were exhibited before me and given the marking CT11. I will refer to them after this as the CT11 transcripts. In late January 2003, after being asked by Australian authorities to do so, Mr Thomas prepared and provided a 13 page handwritten summary of his movements and associations from before his departure from Australia until his arrest. He later took part in a tape-recorded interview with two members of the Australian Federal Police. I have read closely both the 13 page summary and the record of interview. The record of interview was before the court at the November, December and February hearings. The 13 page summary was before the court at the February hearing, but not at the November and December hearings.

In early June 2003, Mr Thomas was released by Pakistani authorities to travel to Australia. No charge was laid against him by those authorities. On 5 June 2003, Mr Thomas arrived back in Australia. He rejoined his wife and child. He went to live at Werribee. He took on jobs of various kinds. A second child was born to Mr Thomas and his wife in 2004. Later in that year he entered into a contract of sale for a home for his wife and two children. At one point Mr Thomas arranged for money to be sent out of Australia to Jordan. That was a matter that attracted the attention of Australian authorities. There was evidence on the bail application hearings tending to show that that transaction was carried out by Mr Thomas for another person who had limited English, and who had good reason to transmit the money to another family member of that person. There was no evidence to the contrary.

In November 2004, Mr Thomas was arrested and charged. It appears that, between June 2003 and November 2004, steps were being taken to determine what evidence from other sources might be available as to the matters the subject of the charges. After being charged, Mr Thomas was remanded to Port Philip prison. The conditions under which he was kept in prison were extremely restrictive relative to other remandees. They were the subject of evidence on each of the three bail application hearings. On each of the two further bail applications, the materials before the court were supplemented. Because of my concern to better understand the relative position as to the materials before the court on each occasion, I prepared a table shortly before the hearing of the appeal. I provided a copy of the table to counsel when the hearing of the appeal came on before me. I have later modified it to allow for the responses to the queries that I then raised. I believe it to be reasonably accurate. I have appended it as Appendix A to these reasons.

I have appended as Appendix B, a version of the reasons of the Chief Magistrate following the February hearing. I found most unsatisfactory what was put before me as to those reasons. It seems that the reasons were delivered orally and that what was said was recorded on audiotape. That is a significant advance on the days when nothing was recorded. Having said that, I believe that a lot more can and should be done, given that this is the fourth occasion in less than twelve months when I been presented with unrevised reasons. I will elaborate on what I perceive to be the problem. Placed before me on this appeal were two transcripts. It seems that a copy of the audiotape of the orally delivered reasons was provided by the Magistrates’ Court to a representative from the office of the appellant. It seems that one transcript (“the first transcript”) was prepared by a person in the office of the appellant. It seems that another transcript (“the second transcript”) was prepared by a person working in the office of a commercial transcriber of recorded proceedings. I was troubled when I noted that the first transcript had what looked like obvious errors in transcription. I checked the second transcript against the first. There were several instances were the same apparent errors were repeated. There were also some different apparent errors, and some occasions where errors in the first transcript did not appear in the second.

I was troubled that no lawyer or other person who was present when the reasons were delivered orally appears to have checked either transcript. I would note that Appendix B is a slightly reformatted, but not corrected, version of the second transcript. The shaded words in Appendix B illustrate what I think are apparent errors, such as “waiting” instead of “weighting”, and “I is performing” instead of “it was before me”. I can only say apparent errors, as I had no access to the tape.

I was even more troubled that no opportunity seems to have been given to the Chief Magistrate to revise the orally delivered reasons. Any party who proposes to criticise reasons for a judicial decision, as the appellant does here, will be at a disadvantage if the decision-maker has not been given the opportunity to revise the reasons. If there is ambiguity, the starting point of the person later reviewing the reasons would tend to be to resolve it in favour of an interpretation which is consistent with the final decision. In the Supreme Court, reasons for decision are routinely revised. Such revision is not done just for the purpose of correcting errors of spelling or punctuation, as is the position with a transcript of directions to a jury. In revising orally delivered reasons, grammar and phraseology can be amended significantly to resolve ambiguity and thus to achieve greater clarity. The revised version can then be treated as most appropriately reflecting what the decision-maker meant to say. As is made clear in the Guide to Judicial Conduct published for the Council of Chief Justices by the AIJA in 2002, at 16, the basic principle is that the substance of reasons may not be altered, when orally delivered reasons are revised.

My concern as to form here was more focused because there was one submission as to a claimed error which was based on the formulation in the court record of the order granting bail. I would have been troubled as to the validity of such criticism if the Chief Magistrate had been given the opportunity to correct the court record. There was no evidence of such opportunity having been given. The burden of work imposed on all judicial officers is considerable, and even more so for a Chief Magistrate. Unless attention is focused on the formal recording of material for a particular reason, it is readily understandable how errors in entries prepared by clerical staff can pass unchecked.

I would finish this overlong note with a suggestion as to an improvement in the practice in the Magistrates’ Court, if it is to remain the practice to provide to practitioners, tapes of decisions delivered orally to enable a transcript to be prepared. That is that, at the time that the tape is delivered, the practitioner should be notified that it is a requirement of such delivery that the practitioner provide the magistrate the opportunity to revise the transcript as soon as it has been prepared. At the cost of taking even longer, I would stress that this was not an instance of the reasons being inadequate, in the sense that it was not possible to ascertain the reasoning upon which the decision is based. See Cropp v T.A.C. (1998) 3 VR 357 at 376.

There were four grounds of appeal. Three were general. In summary, they were that there were alleged errors: in granting bail; in finding that there were exceptional circumstances; and in finding that there was not an unacceptable risk of answering bail and endangering the public. The only specific claimed error was in according too much weight to the report of Dr Ryan. In his submissions to me, Mr Maidment SC, who appeared for the appellant, elaborated on the four grounds. He argued that there were further specific errors. He put to me that there were errors of fact. One was as to the issue of the contact of Mr Thomas with a relevant terrorist organisation. The other was as to the matter of delay. Other matters that he put to me included: that the report of Dr Ryan was effectively the only new “fact or circumstance”; that the Chief Magistrate erred in not respecting the findings of Hansen J, which were relied on by the Crown; that there had been error in giving weight to the proposition that the co-operation of Mr Thomas had been confirmed by the contents of the CT11 transcripts; that the conclusion of the Chief Magistrate as to the position concerning prison conditions was unreasonable; that the Chief Magistrate had erred in what he had said as to prison conditions and lawyer inconvenience and as to the strength of the Prosecution case; and, that there was demonstrably an unacceptable risk that Mr Thomas would fail to surrender himself into custody in answer to bail, there having been no sufficient change in circumstances since the Chief Magistrate had so found in November 2004.

Before me, Mr Maidment argued that the report of Dr Ryan was effectively the only new material which qualified as a new “fact or circumstance”. In my view, that was clearly not the case. There was considerable additional material that was before the Chief Magistrate at the February hearing that was not before Hansen J at the December hearing. At the December hearing, there was somewhat more material than was before the Chief Magistrate at the November hearing. As to quantity, that is visually obvious from Appendix A. In my opinion, the quality as well as the quantity of the material was also significantly different. There were three additional items that were, in my view, particularly significant. The first item was the report of the psychiatrist Dr Ryan. From my perspective, that was not the most significant of the three. It may have been the most significant in the view of the Chief Magistrate, given that he did quote from it at length. The second item was the hand up brief. The third was the CT11 transcripts. I propose to take some time to refer to the contents of both the hand up brief and the CT11 transcripts. I would first note that I cannot accept what was submitted to me to the effect that the Chief Magistrate erred in not according an appropriate amount of respect to the findings of Hansen J, which were relied on by the Crown. Apart from the fact that Hansen J did not have the items just referred to, there is the sound principle recognised in the passage quoted above from Beljajev, as to appropriate allowance being made on later applications for the continuing variation in the factors affecting a grant of bail.

I propose to highlight the position as to first, documents in the hand up brief, and secondly, the CT11 transcripts. The hand up brief contained two sources of material which I believe would have been seen by the Chief Magistrate as being of considerable importance, which had not been before either the November or the December hearing. The first of the two was the 13 page outline of events handwritten by Mr Thomas in January 2003. It is quite a comprehensive document. It has some significance simply because it was prepared and provided as requested. It also can be seen to provide a helpful overall context for the events between the arrival of Mr Thomas in Pakistan in early 2001 and his arrest in January 2003. Further, it names many people with whom Mr Thomas said that he associated. Each of those matters can be seen to be strong prima facie indicators of the willingness of Mr Thomas to co-operate with Australian authorities.

The second of the two sources was the copies of statements of some 33 witnesses. Of the 33, fifteen are members of the Australian Federal Police, four are Australian Federal public servants, five are members of police forces in the United States, one is a Pakistan official, another a Pakistan travel agent, one is a Melbourne retailer, two are named Australians who were in Afghanistan in 2001. The remaining five are referred to by pseudonyms, and are persons who were in Afghanistan in 2001. Even a cursory review of the statements tended to highlight the major weakness of the Prosecution case, that the Prosecution was at all times prepared to acknowledge. The weakness is that there is but scant evidence against Mr Thomas, other than that what could be seen as the admissions made by him in the record of interview.

As to the CT11 transcripts, their significance lay not so much in what was recorded in the 457 pages, as in what could be inferred from the nature of the transcripts, and from what was stated on the first page as to matters like times, dates and persons present. As to the CT11 transcripts, I am obliged to be circumspect in what I say. The CT11 transcripts were only made available with limitations. It was impressed on me, and I accepted that, National Security concerns dictated a need for confidentiality.

At all hearings, attention was given to three subjects, which had a common thread. The first subject was co-operation. Had Mr Thomas, after his arrest, co-operated with Australian and other authorities, and if so, in naming persons with whom he had associated before his arrest and otherwise and to what extent? The second subject was denunciation. Had Mr Thomas, after his arrest, denounced the terrorist organisations with some of whose members he had at times associated before his arrest? The third subject was contact or non-contact. Had Mr Thomas, after his arrest, had any and if so what contact with persons linked to terrorist organisations?

At the November hearing, oral testimony was given by a Stephan Obers, a member of the Australian Federal Police Force. Obers had been asked questions touching on the three subjects, which had been answered in a guarded way. At the December hearing, the matter was advanced a little further. Before the court were letters from a lawyer in the office of the Australian Government Solicitor. They refer to a subpoena which had been prepared by Mr Stary’s firm seeking documents including transcripts of other interviews of Mr Thomas. The letters provided an acknowledgement that there had been interviews of Mr Thomas. It was a quite limited acknowledgement.

At the February hearing, Mr Stary was at pains to stress the National Security concerns as to the production to the Chief Magistrate of the transcripts, before he handed them to the Chief Magistrate. Later, a photocopy of the front page was made and the transcripts were handed back to Mr Stary. It was nonetheless made clear by Mr Stary that he relied on the transcripts to support submissions that he made both as to the issue of the admissibility of the record of interview of Mr Thomas, which was relevant to the issue of the strength of the Prosecution case and as to the issues of co-operation and denunciation. At the February hearing, although Mr Maidment was supportive of Mr Stary making only a limited use of the CT11 transcripts, he also argued that the transcripts did not provide the level of support for the submissions claimed by Mr Stary.

Before the hearing of the appeal, I had two mention hearings. At one mention hearing, the position as to how I should treat the CT11 transcripts was discussed. I was warned of the need for confidentiality because of National Security concerns. Prior to the hearing of the appeal, I did not read all 457 pages or even half that number. I did read various passages with a view to gaining a broad overall impression. I read the first page with close attention to detail. I see no basis for breaching National Security in my noting that the CT11 transcripts reveal that Mr Thomas was interviewed in the presence of Australian authorities over five days in early 2003, for a total period of in excess of 20 hours, and that there is strong prima facie evidence of extensive co-operation with Australian authorities. Accordingly, I am quite unable to accept that the Chief Magistrate erred in concluding that the co-operation of Mr Thomas had been confirmed by the contents of the CT11 transcripts.

Mr Maidment argued before me that the Chief Magistrate’s reasons included errors of fact, as to the issues of the contact and delay. As to delay, I was referred to the exhibit before the court which was a copy of the “Notice of Order Made” as recorded in the Magistrates’ Court. In that notice, there are four reasons set out for granting bail. One is: “The occurrence of a manifest delay.” I make some brief comments about the discrepancies between that notice and the orally delivered reasons. There is no reference in the oral reasons for delay, let alone manifest delay. Further, the notice fails to make reference to the substantive reasons provided in the oral reasons. Further, the notice says no relevant prior convictions, where the oral reasons say no prior convictions. Further, at the February hearing, Mr Stary did not seek to rely on delay as a basis for exceptional circumstances. There ought to be a degree of embarrassment within the Magistrates’ Court that a form was so incompetently completed. Nevertheless, I am not prepared to unduly elevate the inadequacies of the record so as to effectively disregard the substance of the orally delivered reasons.

The subject of the state of the evidence as to whether Mr Thomas had made contact with any persons linked to terrorist organisations since his return to Australia was canvassed at the November and December hearings. During the February hearing, Mr Stary was making a submission on the subject, when the Chief Magistrate, apparently to shorten matters, interrupted him. He asked Mr Maidment, who confirmed that the position was, in short, that there had been further investigations since the December hearing, and that they had not revealed any evidence of contact. The Chief Magistrate addressed the subject at paragraphs 8 and 15 in Appendix B. While what he said may not be particularly felicitously expressed, given how the matter was addressed during the hearing, I cannot accept that the issue was one of major significance, and again I would note that the Chief Magistrate was given no opportunity to revise his orally delivered reasons. Accordingly, I am not persuaded that there was a material error.

I am unable to accept that the Chief Magistrate accorded undue weight to the report of Dr Ryan. On a bail application, a report from a psychiatrist stating that the circumstances of incarceration are having substantial adverse consequences on the mental health of the remandee could never be taken lightly. It obviously has the potential to be a significant contribution to a finding as to exceptional circumstances. The Prosecution did not seek an adjournment or to have Dr Ryan cross-examined, but was content to argue that the opinions stated had to be viewed with major reservations. As is apparent from paragraphs 5 and 6 in Appendix B, which in their present form suffer substantially from non-revision, the Chief Magistrate quoted significant portions of the report. He also made a number of qualifying comments, including as to the inability to cross-examine, all of which appear to me to be apposite. It is clear that the Chief Magistrate was aware both of the impact of the opinions expressed and of the reservations for which allowance had to be made. Before me, Mr Maidment added to the reservations which he argued ought to have attended the assessing of the opinions of Dr Ryan. I was not persuaded that there was error, even after taking account of those added matters.

I turn to the subject of prison conditions, as to which the Chief Magistrate’s reasons make several references, in paragraphs 7, 15 and 16 in Appendix B. Again, I am unable to accept that the statements of the Chief Magistrate concerning the position as to prison conditions, and in that context as to lawyer inconvenience, were unreasonable. As with other matters, so as to the state of the prison conditions to which Mr Thomas was subject from the time of his arrest, the material before the hearings was somewhat fluctuating. On any view, the position as to Mr Thomas has at all times been very much more restrictive than for the vast majority of remandees. There was an updating of evidence at the February hearing. That updating included information as to the capacity of the lawyers representing Mr Thomas to communicate with him. It appeared to me that the lawyer-communication issue was not raised as a major matter by Mr Stary, but that it was treated as such by Mr Maidment at the February hearing, and consequently was so treated by the Chief Magistrate. It also appeared to me from the material on the subject before the courts at all hearings, that it was accepted on each occasion that the prison conditions to which Mr Thomas was subjected were abnormally restrictive, and exceptionally so. Accordingly, while some easing of that restrictiveness was appropriately the subject of submissions by Mr Maidment, the fundamental problem remained. In the light of the evidence and submissions before the Chief Magistrate, I can discern no error in what he said.

I am not able to accept that what was said by the Chief Magistrate as a reflection on the strength of the Prosecution case was inappropriate. At all hearings, there was discussion about the subject of the admissibility of the record of interview. At the December hearing, the amount of material before the court was more extensive than at the November hearing. The comments made in the November and December reasons were essentially neutral. The issue of admissibility was noted as being one in the future for the trial judge. At the February hearing, the strength of the Prosecution case was appropriately up for re-appraisal, albeit in a limited way. As I noted above, Mr Stary relied on the CT11 transcripts to support the proposition that there was a strong possibility that the record of interview was not likely to be admitted into evidence. The Chief Magistrate recognised that. See paragraph 14 in Appendix B. I can discern no error there, having regard to what had been submitted to him, and to the additional material available to him at the February hearing.

I do not accept that there was demonstrably, as at the time of the February hearing, an unacceptable risk that Mr Thomas would fail to surrender himself into custody in answer to bail or any other unacceptable risk. The subject of unacceptable risk was also obviously canvassed at each hearing. At each of the November and December hearings, there had been a finding that the risk of absconding was unacceptable. The Chief Magistrate was entitled to find that there had been a sufficient change in circumstances since the previous hearings. Again, I refer to the propositions stated in Beljajev as to continually varying circumstances. At the February hearing, the Chief Magistrate had significantly more material before him bearing on the assessment of the relevant risks. As noted by the Chief Magistrate, there was evidence of several significant factors going to the personal circumstances of Mr Thomas that pointed to the relative stability of his situation. They were thus contra-indicative of a high level of risk of absconding or committing further offences. He had close links with stable parents. He was married with two young children. He had just contracted to buy a home near his parents. He had no convictions. He had been working to provide for his family since his return to Australia.

Potentially to be added to those matters was a positive finding of co-operation by Mr Thomas with the authorities. As to that matter, the potential was quite limited at the November and December hearings. By the time of the February hearing, the Chief Magistrate had before him both the 13 page summary and the CT11 transcripts, which provided strong support for a finding of co-operation. I am not persuaded that there was any error on the issue of unacceptable risk.

I am unable to detect any error in the approach of the Chief Magistrate to any of the matters he was required to address. Each of the matters to which Mr Maidment drew my attention in his written and oral submissions was addressed appropriately by the Chief Magistrate, in my view. I am far from persuaded that the Chief Magistrate may have failed to attribute appropriate weight to any individual matter or to their combined effect.

Appendix A

Gray CM 24 11 04	Hansen J 17 12 04	Gray CM 10 2 05	Teague J 15 3 05
Transcript of Hearing before Gray CM 24 11 04 Testimony of Obers Testimony of L Thomas	---	SO3	X	CT2
Prosecution summary produced to Court	X	CT5
Record of Interview produced to Court	X	SO2	CT5
Bundle of references exhibited	X	X	X
Letter produced to Court	X	X
Transcript of Oral Reasons of Gray CM 24 11 04	SO3	X	CT2
Stary affidavit 26 11 04	X	X	X
Obers affidavit 15 12 04	X	X	X
Copy of charges laid	SO1	X	CT1
Transcript of Hearing before Hansen J 17 12 04 Testimony of Stary Testimony of Obers	---	X X X	CT3
Letter from DoJ produced to Court	X	X	X
Letter from DFAT exhibited	X	X	X
Letter Stary to A/G exhibited	X	X	X
Outline of submissions - Champion	X	X	X
Settled Reasons Hansen J 22 12 04	X	CT4
Brief 13 page statement	X X	CT5 CT5
Report of Dr Mark Ryan	X	CT6
Letters from Australian Government Solicitor	X	X
Transcript of Hearing before Gray CM 10 2 05 Testimony of I Thomas	---	CT9
Letters + records of interviews produced to Court	X	CT11
Transcript of Oral Reasons of Gray CM 14 2 05	CT7 and CT10
Notice of Order Made	CT8
Taylor Affidavit 17 2 05	X (CT 1 > 8)
Taylor Affidavit 25 2 05	X (CT 9 + 10)
McGorry affidavit 22 2 05	X
Report of Dr Patrick McGorry	X
Stary affidavit 28 2 05	X
Stary affidavit 1 3 05	X
Taylor Affidavit 2 3 05	X
Roach affidavit 10 3 05	X
Outline of submissions – Maidment	X
Outline of submissions – Lasry	X

Appendix B

CHIEF MAGISTRATE: Gentlemen, I take it there is nothing new to raise in which case I will simply give the decision now on this bail application. This is a fresh application for bail by Mr Thomas. Mr Stary put on his behalf to the court that there are sufficient new factual circumstances to justify a review of the bail, the prosecution did not oppose the review but maintains that bail should continue to be refused and Mr Stary relied upon some new matters, in particular they were these.
Firstly, the report of Psychiatrist Dr Mike Ryan: secondly, the confirmation by the Australian Government Solicitor of some assistance to Australian authorities; thirdly, the confirmation by the prosecution that there is no evidence that since his return to Australia Thomas has made or attempted to make contact with a terrorist organisation, and that is of course for the period between June 2003 and his arrest in late last year in 2004 and that was confirmation of matters that had previously been reported according to previous applications. There is further evidence, and this is fourthly; there is further evidence of cooperation with Australian authorities by reference to interviews conducted before his return to Australia which are relied upon now as tending to contradict the prosecution contention that Mr Thomas is and remains a terrorist who can later be activated, namely a “sleeper”.
Mr Stary argues that these matters taken together with the previous matters collectively constitute exceptional circumstances and the previous matters in essence were these; firstly, the circumstances of Mr Thomas’s detention and they have not materially changed. Secondly, his personal circumstances, including family support, employment, lack of prior convictions, availability of a surety, renunciation of support of Al Qaida and thirdly, a weak prosecution case. Of course on both previous applications the strength or weakness of the prosecution case was elevated to a matter of significance and highlighted certainly by the defence.

Mr Stary argues that these matters justify release on bail pending committal and I note that the committal is now fixed for 22^nd March, about six weeks from now. There is no need to, if I detail recapitulation of the facts, for detailed comment on the record of interview now that has been done in the previous applications. The interview is clearly absolutely central to the prosecution case and much was said about that before Justice Hanson. He and I, when it was before me to a lesser extent, in terms of detail, made various comments about that interview, whether it will be admissible is of course a matter for later not for now although I will make a few further observations about it later in these reasons.
Dealing with the new matters relied upon by Mr Stary; now firstly is the psychiatric report of Dr Mike Ryan. I propose to quote this on passages set out in this report and I note in doing so that the prosecution did not cross-examine Dr Ryan, he was not available for that purpose but his report was tendered without objection, a fair concession by the prosecution on a bail application of course. In other words, it was untested in cross‑examination but I is performing and in my view it must attract some weight. I read from limited passages of it on page 2 of that report under the sub‑heading Current Circumstances. Dr Ryan referred to Mr Thomas being confined to a single cell for a minimum of 21 hours of each day, I think previously for 23, it is now down to 21. He goes on to describe the other conditions including the availability of television and so on. He says this two paragraphs below: "Incarceration under these circumstances, particularly the isolation, the sense of helplessness and uncertainty, has rekindled the traumatic memories of his recent pre detention in Pakistan. He describes himself as quite 'physically shocking, lethargic, clouded in his thinking, anxious, ruminating about his situation, disturbed in his sleeping, feelings and feeling that things have begun to get quite out of control'" - and this is Dr Ryan quoting Mr Thomas: "He has started to experience intrusive memories of incidents from his time in Pakistan and says it feels quite as if 'I’m being tortured'. He states quite 'I don’t know where I’m at' and wonders 'how long it can go on'. He is aware that he may not come to trial for at least 12 – 18 months." At page 3 under the sub-heading Experiences in Pakistan, Dr Ryan, obviously relying upon what has been told by Mr Thomas; none of this tested yet but dealing with it for the purpose of a bail application. Dr Ryan says this: "Mr Thomas was taken into custody as he attempted to leave Pakistan early in 2003 after some 18 months in that country. For the next 5 months he was detained in a number of prison settings which usually took the form of solitary confinement in very small cells with breaks for interrogation, he was at times chained whilst in his cell. As a general rule he was hooded, handcuffed behind the back and shackled when taken from the cell in interrogation sessions, especially initially, were extremely fear evoking, his impending execution was a frequent topic for discussion. He was told his wife would be raped, threats were made to cause pain in ways such as the crushing of his testicles and electrocution. He reports having no reason to suggest these threats would not be pursued. On one occasion he was afraid we put the hem of the hood whilst it was over his head. He recalls screaming and crying, he was terrified, he could often hear the screams of others as they were being interrogated and possibly physically tortured. He described his feelings as 'quite totally helpless'. I’m sorry, he described feelings of quite total helplessness, quite sickening fear and a frightening sense of anticipation that 'anything could happen'. After a couple of weeks he was 'totally broken down'." They are passages on page 3 and most importantly on page 4 of the report. Under the Opinion sub-heading Dr Ryan says this: "Mr Thomas is a married father of two young children who was charged with terrorism offences. Psychiatric evaluation suggested a man struggling in very difficult circumstances, his faith and family are keeping at bay under significant pressure, the emergence of potentially serious psychopathology, depressive and anxiety symptoms have emerged. There is evidence to propose the recent onset of post traumatic stress disorder relating to his detention in Pakistan by intrusive recollections that he makes efforts to avoid and are associated with psychological distress. This is allied with an anxious effect, attention problems, difficulty concentrating and sleep disturbance. His current detention status of isolation and uncertainty in the context of feelings of helplessness mirrors the situation he found himself in Pakistan and these can be expected to further exacerbate his mental state. Depressive features are apparent and are more than likely to increase given his current situation." And on page 5 in his final paragraph he says this: "From a purely clinical perspective unless some relaxation of this man’s circumstances are allowed then this man must be at significant risk, although a more severe and disabling depressive or anxiety disorder, regular psychiatric evaluation would be recommended.

Now, I say again that that is a non tested opinion by Dr Ryan, but it is one which on this bail application in my view must be given some weight. It was tendered without objection and I’m not suggesting the prosecution should have or would have necessarily objected. Ordinarily in bail applications material such as this is admitted and properly whether it’s tested by cross‑examination or not. While untested and perhaps with an element of speculation about the future condition that Mr Thomas might develop were he to remain in this custodial setting, it’s nonetheless on the face of it a reasonable credible assessment especially in the light of what is said to be Mr Thomas’s experiences in Pakistan and on this application that report must be given some weight and it’s a new matter before the court on the application which was before me last Thursday." Of course, it is true that people facing serious charges will often become increasingly anxious or depressed or both, but Mr Maidment made that point and it is of course true. That is not a reason though, to minimise the importance of those conditions or those possibilities or probabilities in this particular case and no reason to minimise Dr Ryan’s specific observations in that regard.

The next matter which calls for some brief consideration is the circumstances of Mr Thomas’s detention by describing Mr Calvin Anderson’s letter which is Exhibit 2 and partly in Dr Ryan’s report. They have been canvassed at some length in both previous applications. On any view those conditions are highly restrictive; he is locked down for between 21 and 23 hours a day; he is classified as high security and treated accordingly and I am not in any position to comment on the merits of the original classification but that appears to simply flow from the nature of the charges, a result we assume is extremely restrictive and as I said last time, could be described as oppressive with severe limits on family visits and with the only actual contact being with his children, but of course he does have that contact. Whilst there is no theoretical limit on the number of professional visits as I understand it, I accept Mr Stary’s submission that given the available visiting hours and the distance to be travelled, the nature of the custodial arrangements is an impediment to access to Mr Thomas’s lawyers for the purposes of proper preparation of his defence to these extremely serious charges. The importance of this aspect of the matter is given some increased significance in my view given that the committal is scheduled for approximately 6 weeks from now. There is additional evidence of cooperation with an assistance for Australian authorities, those matters were canvassed at length previously but the confirmation that I referred to earlier is an additional element or layer now in under that heading; that is there is additional evidence of assistance over and above what had previously been before the court.
And next the confirmation by the prosecution is that after his return to Australia Mr Thomas made no attempt to contact relevant terrorist organisations, it is again a matter which was canvassed last time that is now confirmed and has an added dimension to it, that is the confirmatory dimension. But for the purposes of this application these are related issues, that is the cooperation of the systems and the non contact issues, that is non-contact of terrorist organisations after returning to Australia. They are related issues because the defence says that they both tend to show that Mr Thomas does not pose a continuing risk as a sleeper terrorist cell.
In this context of course Mr Stary also relies upon Mr Thomas’s repudiation of the Al Qaida terrorist organisation and the evidence given by Mr Thomas’s brother before me on the occasion here in November. The prosecution of course maintains that the opposite conclusions remain open and that is despite that those matters, and indeed possibly because of them, they simply may go to show that Mr Thomas is more committed than ever to maintaining a life of normality, apparent cooperation and the like, to promote the view that he is safe, no risk, and therefore the better to ultimately emerge as a sleeper activist.
This is a key issue of course, its about risk assessment in part and risk assessment is always central to bail applications. With the additional material which is the confirmatory matters that I referred to before supporting Mr Stary’s contention now before the court, in my view the scales tend to tip towards the defendant on this point. That is, in my view it should not be concluded that Mr Thomas’s actions and non-actions have been calculated to lull the Australian authorities into a false sense of security, and put in another way that conclusion becomes progressively less cogent and compelling as a conclusion the greater the evidence and confirmatory material is before the court.
There are now the new matters and Mr Stary seeks to rely upon them. They are on his contention to be combined with the previous list, the strength of the prosecution case or the lack of that strength, family ties, employment, lack of prior convictions and the availability of the surety and I have heard and accept his father’s evidence on that point and generally. Apart from the matter of the repudiation of Al Qaida these factors, that is the personal factors, in the absence of a requirement for exceptional circumstances, would normally strongly support a grant of bail.
Here of course, exceptional circumstances is the test. The question is now do these circumstances, both those of the old and new, either individually or collectively amount to exceptional circumstances? I will not canvass the authorities, everybody is familiar with them, they give a degree of flexibility and a combination of matters can, it is now very very well established, amount to exceptional circumstances for the purposes of discharging the onus under the Bail Act.
The prosecution says that they do not achieve that threshold and in essence before me last Thursday, relied upon the reasons for decision of Hanson J and in particular of course the evidence of the training of the Al Qaida camp and the association with the Al Qaida personnel both before and after September 11, 2001 and of course the admitted part for the defence.
On each of the two previous applications that is before me and before the Supreme Court, the matters relied upon by the defendant were substantially the same as now. Each application was refused, each time the prosecution case was said to be weak and this was relied upon as an exceptional circumstance. Dealing only briefly with the strength of he prosecution case point on reviewing the legislation and the authorities referred to in the Supreme Court, the prospect of a record of interview being excluded are in my view somewhat greater than I first considered them to be. For my part this militates them towards a characterisation of a prosecution case as weaker rather than stronger, but it cannot be boldly described now, in my view, as a weak case such that its weakness is of itself an exceptional circumstance. I do not believe the analysis can go quite that far, as Hanson J said, "The admissibility of the interview is a matter for the trial Judge," and although I have expressed the view that there appear, on the review of the authorities, perhaps a greater prospect of exclusion now than I had previously considered, nonetheless for present purposes given that this is an issue for later, the strength or weakness of the prosecution case ultimately at this point in time in my view remains neutral.
However, whilst on both previous occasions the combination of all factors favouring the defendant was not sufficient to amount to exceptional circumstance, this time that combination has some additional weight. There is the evidence of Dr Ryan and I have read relevant passages from it; there is the confirmation that Mr Thomas has not since returning to Australia made or attempted contact with the relevant terrorist organisations; there is the confirmation of assistance. The application for bail is somewhat stronger than it was, in my view, on previous occasions. Also whilst the relevantly harsh conditions of his detention have previously not been considered an exceptional circumstance, it does seem clear that they are at the very least unusual or out of the ordinary, albeit that they flow I think as an administrative or management consequence of his classification. I have reviewed this issue in the light of submissions made by Mr Stary about the serious difficulties caused by such conditions to the preparation of the defence case for the forthcoming committal and I note in passing that this is quite separate from the matters raised by Dr Ryan.
There is no suggestion that the present conditions are likely to be relaxed or the defendant is likely to be reclassified and that is not a criticism of the custodial authorities, that is simply as it appears to be, a reasonable inference or conclusion and in these circumstances in my view the conditions of the detention matter should now attract some additional weight in the overall consideration of the application for bail.
The addition of the new matters to the combination of personal circumstances and the added waiting of the conditions of detention matter - I mean, that in my view the defendant has now in fact demonstrated exceptional circumstances and should be released on bail. Second, conditions will be imposed including a very substantial surety. In my view the "risk of flight" issue was of course canvassed previously in both courts and in my view given that Mr Thomas does not have a passport and given the history of the matter thus far, the matters that have been so far confirmed and to which I have made reference this morning that is confirmed by the prosecution, I do not believe that there is at this point an unacceptable risk of flight which cannot be adequately covered and thoroughly covered by strict conditions of bail.

[2005] VSC 85

15 March 2005