R v Thomas

[2006] VSCA 165

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 95 of 2006

THE QUEEN

v.

JOSEPH TERRENCE THOMAS

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JUDGES:	MAXWELL, P., BUCHANAN and VINCENT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 and 25 July 2006
DATE OF JUDGMENT:	18 August 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 165	1ST REVISION, 21.8.06

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Criminal Law – Conviction – Receiving funds from a terrorist organisation – Possessing a falsified Australian passport – Crucial to applicant’s conviction was the admission of self  inculpatory statements made in the course of an interview with Australian Federal Police in Pakistan – Whether confessional statements made by applicant voluntary – Whether applicant had a realistic free choice to speak or be silent in the circumstances – R. v. Tofilau [2006] VSCA 40 – Applicant repeatedly urged to co-operate and explicitly proffered the possibility of returning to his family in Australia – Made clear that Australian authorities would only be able to assist if he fully co-operated – Inducements to co-operate held out by persons in authority – Whether admission of applicant’s record of interview unfair or contrary to public policy – Failure to comply with s.23G of the Crimes Act 1914 – Whether trial judge’s discretion miscarried.

Criminal Law – Applications to be heard as amicus curiae – Exercise of discretion – Applications refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr. L. Lasry, Q.C. with Mr. M.P. Taft	Robert Stary & Associates
For the Commonwealth Director of Public Prosecutions	Ms W. Abraham, Q.C. with Mr. N.T. Robinson	Commonwealth Director of Public Prosecutions
For the Commonwealth Attorney-General (with leave)	Dr. S.P. Donahue	Australian Government Solicitor
For Amnesty International (amicus curiae)	Mr. R. Merkel, Q.C. with Ms C. Harris	Holding Redlich
For the Human Rights Law Resource Centre (amicus curiae)	Mr. B.E. Walters, S.C. with Mr. E.M. Kingston	Blake Dawson Waldron

MAXWELL, P.
BUCHANAN, J.A.
VINCENT, J.A.:

1. The applicant, an Australian citizen, was apprehended by Pakistani immigration officials at an airport in Karachi on 4 January 2003.  He was found in possession of an Australian passport issued to him on 19 May 1993, and which he had used when he left this country in 2001.  It had, at some stage, been altered with the obvious intention of concealing some of his movements thereafter.  The applicant also had an airline ticket for travel to Australia, via Indonesia, and a little over $3,800 in cash. 

1. He was detained, and remained in the custody of the Pakistani authorities until he was released and returned to Australia, on 6 June 2003.  He then remained at large until arrested at his home in Melbourne approximately 17 months later, on 18 November 2004, and charged with the offences with which we are here concerned.

1. The applicant was subsequently found guilty by a jury in the Supreme Court of Victoria, on 26 February 2006, on one count of receiving funds from a terrorist organisation[1] and one of possessing[2] a falsified Australian passport[3]. 

   [1]Paragraph 102.6(1) of the Criminal Code Act 1995.

   [2]Paragraph 9A(1)(e) of the Passports Act 1938.

   [3]He was acquitted on two further counts of intentionally providing resources to a terrorist organisation (Paragraph 102.7(1) of the Criminal Code Act 1995).

1. Crucial to his conviction on both counts was the admission at his trial of evidence of self-inculpatory statements made by him in the course of an interview conducted by two members of the Australian Federal Police (AFP) in Pakistan, on 8 March 2003 (“the AFP interview”).   No question has arisen with respect to the truthfulness or reliability of those statements but, the complaint has been advanced (inter alia), that the trial judge erred in permitting the prosecution to adduce them.

1. In essence, it has been argued for the applicant that the correct application of the deeply-entrenched legal principle, that a confessional statement made out of court by an accused person is not admissible unless it is shown to have been voluntarily made, required the exclusion of this evidence.  Alternatively, it was contended, the evidence had to be excluded in the proper exercise of the discretion reposed in the trial judge on the basis that its admission was unfair, in the sense that that term is employed in the law, or would be contrary to public policy. 

1. In the interview, the applicant admitted that he had altered his passport in order to conceal the amount of time he had spent in Pakistan.  He was concerned that questions might be asked about his associations and activities whilst absent from Australia, which included his contact with members of the al Qaeda terrorist organisation and his having been in Afghanistan (more specifically, at the al Faroq camp at which al Qaeda training was conducted).  He also stated that the ticket and money had been provided to him by a man named Khaled bin Attash, who was an associate of Osama Bin Laden and a high ranking al Qaeda operative.

1. At this stage, it is desirable to set out some of the background relating to the  applicant’s detention in the period between his initial arrest and the time of the conduct of the AFP interview, as it constitutes a significant part of the context in which the impugned statements were made.

The Applicant’s Version of Events

1. What follows is the applicant’s version, which he gave at the trial, of what took place during the period of his detention.[4]  The trial Judge accepted almost the entirety of this account as truthful.  His Honour said:

   [4]This outline has been prepared from the transcripts and summaries of evidence provided to the Court, the accuracy of which has not been the subject of any controversy in the proceeding.

“Generally I accept the truthfulness of Mr Thomas’ evidence (and in particular his evidence of threats made to him).  There are however four exceptions”.[5]

[5]D.P.P. v. Thomas (Ruling No. 3) [2006] VSC 243 at [41].

His Honour did not accept –

·the applicant’s claim that he had “no choice”, but to answer questions when interviewed by members of the AFP on 8 March 2003;

·that, prior to the commencement of a (joint AFP-ASIO team)[6] interview of the applicant, on 27 January 2003, one of those involved told the applicant that he had “a window of opportunity” open to him to improve his situation;

·the applicant’s claim that he did not fully appreciate the difference between being co-operative in the other interviews and the “formal record of interview” conducted on 8 March 2003;  or

·that, prior to the AFP interview, the applicant was advised by Commander Lancaster, who participated in the interview, to “Just co-operate as you have been”.

[6]It was a joint team comprising officers of the Australian Federal Police and of the Australian Security Intelligence Organisation.

1. At the time he was taken into custody, the applicant was in the course of travelling home to Australia.[7]  On presenting his ticket and passport at the customs barrier, [8] he was told that “[his] friends were on the way.” He realised that he was about to be arrested.  After about 10 minutes, some men, dressed in military uniform and armed with Kalashnikov rifles, arrived and he was taken to a four-wheel drive vehicle; “not handcuffed or shackled, but blindfolded and hooded.” 

   [7]He said that he proposed to stop over in Indonesia in order to visit his parents-in-law who resided there.

   [8]He gave them the name that he used whilst in Pakistan, Abu Hyiar.

1. After a journey of approximately half an hour, the applicant arrived at what he thought was a Pakistan military base.  He formed this view on the basis of the limited vision that he had of his surroundings through the mesh of the hood covering his head.  

“At the base I met two Americans, by their accents.  They did not tell me what agency they were from.  I was put straight into the room and questioned by two Pakistanis and the two Americans.  They told me I was being spoken about in high places but nobody gave me any names.  This came from the American.

There were no threats of violence at this stage, and no physical violence.  They said I was in deep trouble but they did not tell me what the consequences of that were.  In the conversation I was asked to explain what I had been doing. I fabricated a story that I had been travelling and stayed in Pakistan.  I had been a student.”

He said in evidence that he had provided this explanation out of fear of being sent to Guantanamo Bay in Cuba and, more generally, of being held in indefinite detention.[9]  His interrogation continued for about two hours, during which he maintained that he was telling the truth, but it became increasingly apparent that they did not believe him.

[9]He said that “I had requested they do not take me to the Americans…;  I asked that because of fear of being sent to places I did not want to go”.

1. After this initial questioning was completed, he was placed in a cell where he remained until he was interrogated again later that night and on the following day.  These sessions were shorter.  They were undertaken by one Pakistani official and the same two Americans.  Although the applicant persisted with his story, it was evident to him that they believed he was lying.  They said that it would be better for him if he co-operated and told the truth.  No threats were made nor was he offered any inducement to do so.    

1. Sometime later, the applicant was taken by car to “some sort of mansion house”.  He was blindfolded and hooded for the trip[10].   He was held for about two weeks in a cell that he described as “a dog kennel about the size of a toilet”, with open bars and a gate that exposed him to the elements. 

“It had a roof, quite high but very boxed in.  It was a concrete floor and I was given a blanket on the ground and a pillow.  Two men could probably sleep in there.  I was given a Koran.  I was given nothing else.  I had been given a meal earlier but for the first couple of days at the mansion place initially I was not given water or food.  I think I had no food for about 3 days.  I cannot recall food in the first day or so at the mansion.”

[10]He was also handcuffed and shackled.

1. When he was to be questioned at this location, he would be moved from the cell into the back of the house and up some stairs, shackled and handcuffed.  On each such occasion, he was taken to the same room and placed on a low stool, with his feet padlocked to a large metal plate in the floor and with his hands cuffed behind his back.  Although blindfolded and hooded throughout these sessions, he was able to see the people questioning him under the blindfold and through the mesh of the hood.  The two Americans were present and there were some Pakistanis. 

1. The first questioning session lasted from about noon to dusk.  Presumably because he continued to maintain the student story, the Pakistanis present commenced to threaten him by saying that they would pour water on him and electrocute him, and that he would be executed.  These threats were made –

“a number of times. … They did not tell me how this would be done but kept saying ‘Come on, man, you have a family you must tell the truth.’” 

On a number of occasions, the Pakistani officials told him: “We’re outside the law. No-one will hear you scream”. 

1. The applicant maintained his story until –

“after I was interrogated again I changed my approach to the questioning.  This was on the next session.  This was 10 or 20 minutes after the last session.  They had left me alone in the room. What changed my attitude was the short Pakistani officer grabbed my hood by the collar and strangled my hood so that I was suffocating and being strangled with my hood and the heat and the stress was unbearable and I felt they were not going to stop until I screamed out and they released me. 

They all left the room and one man came into the room.  They told me in the previous interrogation I was not allowed water.  One of the Pakistanis came in and put a bottle of water, a cold frosted bottle, right in front of me, and me with my hands handcuffed behind me.  I decided I had better start talking, because this was really getting  ... I’d gone way past my limit here.  I was taken back to the cell, the dog kennel.  I had not said anything about co-operating.  I  was just thinking about  what I should do.  I was trapped.

The shorter Pakistani who had strangled me took a different approach when he came downstairs.  He asked me what my price would be for talking.  “Is it money or ... what is it?”  I said “Well,  I want to return home free to my family.”  That was when I decided and we discussed about me co-operating.”

Once he indicated this change of attitude, he was given food, and the circumstances of his detention improved.

1. On the following day, he was again taken to the room and interrogated.  On this occasion, he began to answer questions as fully and accurately as he could.    

“They were very accepting of the information that I gave to them.  When I was telling them things they would accuse me of lying.  Well you can’t understand, you can’t imagine, when there’s a super power on one side of a little table and you’re with your handcuffs behind your back, how you have no choice but to co-operate.

I was doing my best to tell the truth.  I was doing my darndest to give every detail I could if my life depended on it.  What I said was consistent with what I told the AFP and ASIO members in their interviews, although I was much less reserved in that.  There was an American with a beard, I can’t recall his name, and he said things about going my going back to my family.  He was saying ‘I hope for you that you will be returning to your family.’”

1. The questioners told him that they were “overjoyed” with the information he had provided.  They said they would ignore his initial “storytelling” and report that he had co-operated immediately.  They indicated that they were going to pass on their favourable impression, so that he could return home to his wife and children. 

“The Pakistani wrote that down on his notepad.  I do not believe he was writing anything down.  He said that I would be going home.”[11]

[11]He stated that he did not think that the interviews were being tape recorded but believed that the Americans were taking notes while the Pakistanis were asking questions.  This was an exception.

1. At the end of the two weeks, he was placed on a light aircraft and flown to Islamabad.   

“I thought I was going home, wishful thinking.  I was again blindfolded, hooded and shackled and remained so throughout the flight.  These were different Pakistanis to those previously.  I saw them when the hood was taken off when we were flying and I was then told to put it back on.

In the mansion house the Americans said they hoped I would be going home and the Pakistanis said it much more explicitly.  There were no Australians involved at this time and they did not explain how this would be done.

1. His first contact with Australian officials was on 22 January 2003, when he was permitted a consular visit by Mr Alastar Adams who was based at the Australian High Commission in Islamabad.  The visit was supervised by officers of the Pakistani Intelligence Directorate.  According to the evidence given by Mr Adams, the applicant’s appearance did not suggest that he had been subjected to any maltreatment and there was no indication of food or water deprivation. 

1. In the course of this visit the applicant was allowed to make a telephone call to his family.  He assured them that he was being treated well.  However, he said -

“It would have been great to speak to Mr Adams without the Pakistanis being present but I did not raise this with Mr Adams.  At a later stage I did ask him (Adams) to leave the room so I could speak to the Pakistanis.  This was at a later stage.  I needed to get some human to human advice, I wasn’t in a position to ask the Australian to be alone in the room so I clung to those that could be the Pakistanis.  I remember saying to Mr Adams that I was in good health, and said I was receiving good treatment.  I did say that.”

1. Mr Adams said in evidence that, while the applicant was on the telephone saying to his parents “I’m not going to Cuba”, a Pakistani intelligence official intervened and said, “No, that’s not correct”.  In substance, Mr Adams recalled, the applicant was told that he should not assume that he was not going to Guantanamo Bay. 

Interviews with Australian Officials

1. It is apparent - and entirely understandable - that the activities, associations and possible knowledge of the applicant were of considerable interest to Pakistani, American and Australian intelligence agencies.  It is also apparent that, as the applicant was informed by the Americans when interviewed at the “mansion”, his situation was “being spoken about in high places”.  At all times he was in the custody of the Pakistani authorities, under the Security of Pakistan Act, although no charges had been laid against him and the investigation of the matter was proceeding.  Against that background, arrangements were made for interviews to be conducted by agencies of each of the three countries concerned.

1. A joint interview team of the AFP and ASIO officers was involved in this process.  On 23 January 2003, it was reported by Sergeant Williams of the AFP, who participated throughout, that -

“Interview plans have been prepared and tactics for the conduct of the interview have been discussed with all relevant agencies.  It is anticipated that the interview of Thomas will be over a significant period of time (several days).  The interview team will comprise two AFP and two ASIO officers in the first instance.”

1. Four interviews were then conducted between 25 January and 29 January 2003, all, it appears, in the presence of Pakistani and Australian officials, who emphasized to the applicant that his future was dependent upon the extent of his co-operation.  The situation emerges clearly in the following extracts from the transcripts of those interviews:

“INTERVIEW 1 – 25-26 JANUARY 2003

2-5     Q[12] ….. my interest is getting your story.

[12]Unless otherwise indicated, the questioner was Australian.

……

Q …. You will find tonight we’re more interested in having a discussion with you rather than an interrogation.  We tend to adopt a friendly approach.  We encourage you to be truthful….

……..

Q. And a lot of people have been spoken to, a lot of people that you may have come across, people who are here may know and a lot of people have told us a lot of things about a lot of other people.  So, you know, we will be in a position to determine whether we think you’re telling us the truth so …

JT. Yes

Q. On that basis I would encourage you to be completely open and honest with us and then down the track, down the track once we’ve prepared our reports then our analytical people back in Canberra can then look at other information they hold and then we can determine whether you’ve been co-operative.

………

PakQ.Now you are amongst your own men right.

JT. Okay.

PakQ. And there is no problem.  And you have to be absolutely fair whatever you tell us.

PakQ. And you must not hide anything.

JT. Yes

PakQ. Right.

JT. There’s no point…..

PakQ. And you must give us the maximum co-operation.

…

72-7PakQ. …. Today you should be more confident, more happy among your own people, right.  They’re here to look after you.

JT. Okay.

PakQ. But the problem is that they can only look after you once you co-operate with them.

JT. Okay.

PakQ. You co-operate with us.

JT. Yes

PakQ. We’re your Muslim brothers.

JT.Yes

PakQ. We want you – your welfare.  We want you to benefit.

JT. Yes

PakQ. So I think you should be more open right, whatever you know ……

74.Q. Okay. So-um what our colleagues say here is true and a full and thorough, full and thorough explanation by you to all of us here is – in your best ….

75Q.And I know that the various authorities involved were very pleased with the information you provided them…

…

INTERVIEW 2 – 27-28 JANUARY 2003

2-7…….

JT: ……then this gentleman is saying that we’ve got a window of opportunity – um – but I want to know if it’s window of opportunity for both of us or if it’s a window of opportunity, you know just for me to tell you everything and then you’d lock me up and throw away the key.

Q. No, well, no it’s like this.  You’re being held in Pakistani custody.

JT. Yep.

Q. And that’s something that we have no influence or control over, and I’ll be upfront in saying that.  And as to the future of the custody I have no idea what the situation is……..and frankly that’s not our concern.  The consular people might have an interest in that sort of thing. ……

About all we can do for you is reflect back to our Pakistani colleagues and to our Government as to whether we consider that you’ve been co-operative or not. …..Now whether that does you any good is something that I can’t comment on either.  It’s something you need to decide in your own mind, would I rather be perceived as being co-operative or would I rather be perceived as being obstructionist and difficult and potentially malicious in coming out with stories……

…

JT: So there are no rays of hope?

Q. No, no. … If I could just recall what my friend just said a second ago about the perception obstructionist or co-operative…..

………

PakQ. What I was saying, you mentioned that yesterday, the day before yesterday that ….we told you that you have to prove it ….that you are not a terrorist …. The problem is once you are sitting over here, right, you know so many people who were involved in terrorist acts or they were believed to be involved … so you have to tell us each and everything and the next question was that …. Why you are sitting here…. You have to prove it that you are an innocent man and why you are sitting here…. You have to prove it.  You have to tell us, right.  To your own people from your own country. ….in your own personal capacity can help your own countrymen, … to stop this practice in future. ……so as a good human being ….as a good Muslim, you can stop this heinous crime.

……

PakQ. It is very simple. For that you have to exactly give us the correct organisation…

JT. Yes

PakQ. …that is working for terrorism in Australia, in Pakistan, in Afghanistan and their related links and facilitators.  That is our precise requirement.”

1. In the course of this interview, he was shown a photograph of himself with his family.  We refer to this incident later.

“104-5 PakQ. You are you not sharing everything with me?

JT: I am sharing everything with everybody, don’t worry.

PakQ. Since yesterday you have seen your own people from your own country….

JT. I know I am often facing this way…

PakQ:You have no gift for us – you are not giving any gift to us, your Muslim brothers.

JT (laughter) If any of you ask me – I’ve given you my full co-operation, I promise, with everything I can.

…

Q: We gave you opportunities and you knocked them back, to contact the mission and you knocked them back.

JT: …I accepted the wrong advice.

Q: That was your lifeline.

JT: Well I’m trying – I’m trying to cling onto it now.

Q: I think it’s too late.  You’re in Pakistani custody. Anyway.

PakQ: Just to find if you have done nothing…. We are here as Muslim brothers to help you. Right. Now you tell me, where were you on September 11. Be frank

JT: Kabul.

PakQ. Be happy, right. We are your friends.  Talk like friends.

JT. Yes.

PakQ.  There is no need. If you start crying we are not going to leave you. Right. If you are not cooperating then it’s bad.

JT. Oh, yeah.

PakQ. If you are giving any information happily you are happy, we are happy. Right.

JT. Yes.

…

Q. I mean you’re in an excellent position to assist us and, you  know, and we may – and it’s the sort of assistance which could save lives.

JT. Yes.

Q. So you know, if you feel any remorse or you feel any guilt, I mean we are offering you an opportunity to reprieve yourself, which I think be good certainly good for us and good for you and good for Australia as a whole. And so, you know we’re encouraging you to do whatever you can to recall as much as you can---

JT. Yep.

Q. About the people, what you said, because small details can be very important in this sort of matter.

PakQ. Okay, Thomas, still we can give you a chance to think more.

……

PakQ. We can come tomorrow again.  You think tonight, think tomorrow.

JT: Can you give me some paper and a pen?

PakQ: Listen, listen. You will write …..we have read your statement previously given … of 50 pages. Now you are going to write some more…And we can give you one more chance. We can come tomorrow. …

PakQ. This is benefit you to write.

JT. Yep.

Q. Right.

…

128PakQ: …….And you believe in Allah right? … If you have done nothing then He’s going to help you. If you’ve done nothing your people they’re willing to help you. ….We pray for you, all of us, you are our brother….

JT: Look, I really, I’m really thankful, I can assure you. And I can look deep into your eyes and deep into your heart even, and tell you one and all, that I haven’t committed any terrorist crimes or any crimes of that sort…That’s something I can bloody well tell you that I haven’t done… or intended to do.

PakQ: You have to make us believe. Right. Tomorrow… ….

INTERVIEW 3 – 28-29 JANUARY 2003

16Q. …… we might move into a new area now ….I’ll preface it with the same remarks that I made in our first sessions, that whilst this is a new area and it’s something that we do have certain knowledge on and – so we’ll just encourage you again to be totally frank because we will be in a position to cross-check what you’re saying.

JT. Yep.

Q. In some cases we’ll be able to do that immediately, in other cases we might have to refer back, but just – just bear that in mind. …

…

90Q. This man [Pakistani ISI officer] has spoken very highly of you, of your character ….

91Q. The way in which you address questions that [the officer] will ask you about your wife will be a measure …..

JT. Of my honesty.

Q. Of your co-operation.

JT. Okay.

Q. Because that will be hard for you, and we know that.

JT. Yeah.

Q. Believe me, we know that.

JT. Yep.

Q. That it will be a measure of your co-operation, so if we can move into those questions, start those questions now, we will get a measure of just how far you’re prepared to go and that will be good.

INTERVIEW 4 – 29 JANUARY 2003

1. On this occasion, the applicant was handed a letter from his family in Australia.  The letter was produced by AFP Agent  Briskey who had, according to the evidence, been asked by Mr Adams, the consul, to relay the letter.  The following exchanges then took place between Agent Briskey and the applicant:

   Q. Sounds like your lucky night. Not only do you get to sit here and drink tea and biscuits with us you get to read a letter. You can’t do much better than that Jack.

   ……

   JT. I’ll be much happier in their arms.

   Q. See this letter .. I’ve touched it and it’s travelled all the way for you.

   JT. Touch her fingers.

   Q. That’s right, it’s been in a house that you were once familiar with.  Now, you’re here and now they’re there.

2. Later in the same interview:

85Q. We don’t know anything about this. We know a lot about a lot of things, but we don’t know anything about his bit….

JT. M’mm

Q. So you need to tell us.

90JT. I reckon to kill your Muslim brothers or any people is just not right. All I’m thinking about is getting home to my family. ….

93Q. Was there anything else you might do in Karachi, perhaps not on a terrorist scale, to cause trouble?

JT. I wasn’t interested in – I wasn’t looking for trouble. I was looking for…

Q. Because, you know, we might have information that you were prepared to cause trouble, so you had better tell me the truth.”

1. The applicant gave evidence on the voir dire concerning these four interviews.   (What follows is taken from the summary of evidence provided by the Crown for this appeal, with alterations as required to conform with the transcript).

“I was first told the Australians were going to see me when I was taken from my cell for that purpose, during the 10 minutes it takes to put the hood, handcuffs and shackles on.  First met the Australians in a sitting room, and we had a conversation.

Present then was 4 Aussies and 2 Pakistanis.  In the room were Briskey and Williams from the AFP and [two men] from ASIO.  I was told they were going to ask me some questions.  This conversation was after the hood and shackles were all taken off.

I was aware it was Friday or Saturday night.  I joked ‘Bloody hell what a way to spend your Saturday night’.  The ASIO people told me this was secret and told me they weren’t even here.  Briskey and Williams did not tell me why they were there.  After a while my assistance to the Americans came up.

I was glad to see the Australians.   I wanted to hug them, get home in their suitcase actually.  I was just happy to actually hear Australians and see Australians.  I thought these were guys who could do something.  I was hoping that I could get home with them.  I did not know what the steps might be.  All I knew was my life got easier when I co-operated.  It was made clear to me by the Australians that they’d be asking me questions and that they wanted information.  I told them I was very willing, to provide them with information.  I wanted to prove myself to show the Australians ‘Hey you know, this guy has found himself in the right place at the wrong time and he deserves’ ... He’s told us the guts of everything”, and [they’d] allow me home.  ‘He’s gone all out to do the right thing by filling’, by filling in the hole that I’d dug for myself’.  I can’t remember if it was particularly in the first interview that they said co-operation was better than not.

The Australians told me they already had information about me.  They constantly referred to their ability to cross-reference information.  They put a lot of pressure on me to be very detailed.  At the outset of interviews or at different stages they said ‘We’ll know if you’re telling us the truth by cross-referencing that information’.

My opinion was that, if I did not answer their questions, it was indefinite detention.  Well I was wondering about what the Pakistan Colonel had said, I was wondering if it would be Pakistan or Guantanamo Bay, because I was just being held.”

1. Interview 1:

“I was relieved when I was told that the interview was going to be more of a discussion than an interrogation.

I was apprehensive about what had occurred as a result of the raids in Karachi.  People I had provided information on and had stayed with had been arrested.  I believed that my wife, or my life and my family’s life were at risk if these people found out that I ratted them out.

My view was that the most human and the best thing to be doing was giving every bit of information I can so that Australia will be protected but also so that for my own life, on my own prospects of a reasonable... of a good future, that that would be conveyed to the people who make decisions, and that was just so important.  I had to really struggle to think of events and people and places, in my darnedest to prove to them that I was worthy of returning home.   I was in that state of mind throughout these interviews.

I understood what was said by Agent Briskey to mean that with fuller and thorough co-operation I would get what I’d ask for.” 

1. Interview 2:

“My concern here [from the questions about whether I wanted to be seen as co-operative or obstructionist] was that I was in indefinite detention and I needed to know what was going to happen with my life.

I understood that the most important thing was to be perceived as totally cooperative.  I wanted to be perceived as Jack Thomas Australian who’s found himself in a third world country desperately trying to get home and doing all he can to ransom himself by giving full co-operation.  They told me that it’s better that you’re seen to be co-operative than not. 

---

When I said there were ‘no rays of hope’, it was a bit like an emotional rollercoaster at this stage.  It had gone up and down.

I remember being shown the photograph.   It showed my wife holding our baby daughter and myself in happier times.  I was very happy to see it.   [An official] deliberately showed me the photo and said ‘I will show it to you again’.  I was very happy about that.  My other emotional reaction was that I was obviously very sad.  It was a bit of a kick in the head but I was thousands of miles away in a third world country away from the life of my wife, my wife and child.

What happened was the photograph was in an album and it was removed and handed to me.  From my memory I was deliberately handed the photograph. 

[When the ASIO officer said that I was being given an opportunity to reprieve myself, which would be “good for them, good for me and good for Australia”]   I understood that “good for me” meant that by giving information it would be good for me.  The good for me will be to return home to my wife and family.”

1. Interview 3:

“I recall it being put to me that this would be a test of the measure of my cooperation.  I understood that passing the test would mean that when they passed the information to those in Australia who made the decisions, they would see that I’m a reasonable fellow and allow me home.

1. Interview 4:  

“This was a letter to me from my family, I wanted to read it right there and then.

It was tugging and tugging at my heart all the time.  I don’t think I was really concerned about anyone else in the room at that time, just the letter.  I can’t recall if I had received any other letters prior to this from my family.  They were always, always, very, very valuable.

By the end of this interview, it was my belief that I had given my heart  and 100 per cent cooperation and I believed they were happy with my co-operation.” 

The Interrogation at Lahore

1. Following the fourth interview, the applicant was taken from Islamabad to Lahore.  He was held in Lahore for three weeks and was interrogated on a daily basis by Pakistani officials and by an American called “Joe”.

“It was during this period when I was in Lahore I met the man Joe.  This was two or three days after the last [joint team] interview.  I was taken out of my cell and into a sitting room.

I knew the Pakistani officers who moved me.  They were the ones that previously moved me.  The sitting room was in a house in a military base.  I was being interrogated when I met Joe.

Joe was leading the questioning.  … A point was reached at which Joe made threats to me.  I was down there for 3 weeks and this was in the third week.  I had been interrogated daily and I was answering the questions truthfully.  I was kept in a cell smaller than my first one.  The living conditions were disgusting.  It was wet, the blankets were rotten, there were mossies everywhere, the meals were the same every day.  I couldn’t eat.

Joe did not tell me what agency he was from.  I believed he was from the CIA.  He proposed that I go back and work undercover, wearing a recording device.  I would be working for the Americans.

I did not agree to do this because I would be killed as a spy.  Joe kept insisting that I knew the next operation or next target and I kept insisting I did not get involved in that kind of discussion, and had no knowledge of such things.  He wasn’t believing me so he was ratcheting up the pressure.  He said I would be sent back over the border into Afghanistan, where the latest technique to extract information was twisting testicles. ‘I love to hear the sound’, he said, ‘-‘when they twist their testicles.  They just scream.’  He said the guards would not treat me like that here. I would be bashed and beaten every day.  He said:  ‘You’re just going to have to prove it once  you get there.’   I felt sure I was being sent there and no matter what I said wouldn’t console him.  I just got to a stage when I broke down  because of what he was saying, especially about my wife and sending agents to Australia to rape my wife.

He said, ‘Your wife will be getting lonely now.’  These things were very upsetting.  I couldn’t do anything.  I’m handcuffed and in a third world country.  I’m thousands of miles away from home.  You just can’t understand unless you’re there.  If I could sink into the earth I would have... because of the threats of the particular types of torture that would be carried out because he wasn’t believing me.  So I happily agreed to go through a lie detector test.  I understood that if I failed the lie detector test I would be sent back across the border until I told the truth... more specifically to Baghram than Afghanistan.  I was never given the lie detector test.  I returned from Lahore to Islamabad about two days before the fifth ASIO interview.  I was interviewed in the same place as the previous interviews.”

Two further Australian joint team interviews

1. Following this process, he was taken back to Islamabad where two further interviews were conducted by the joint AFP-ASIO team.

“When I returned from Lahore I was again interviewed by the [joint team], and Mr. Lancaster of AFP had joined the team by then.

I think at the end of the fifth interview I was told by Mr. Lancaster that the process was entering a new phase.  Lancaster said they were here to conduct the investigations and to see if I would help them in their investigations. I believe something like ‘formal record of interview’ was said by Mr. Lancaster.  I asked the AFP members Williams and Lancaster what I should do.  I didn’t get a satisfactory response.”

1. The applicant was kept in solitary confinement throughout the entire period of his detention.  For each of the six interviews, he was brought to the interview location by his Pakistani captors, handcuffed, hooded and shackled.  Although these restraints were removed during the interviews, they were replaced before he returned to his cell.

The AFP interview on 8 March 2003

1. In undated correspondence addressed to the relevant Pakistan Government official at an agency called Inter-Service Intelligence (“ISI”) in Islamabad, Mr Rohan Pike, an AFP officer attached to the Australian High Commission, set out a number of requests.  Relevant to the present application are the following passages:

“The AFP now wish to progress our investigation by gathering evidence pursuant to these [Australian] laws in a format that is admissible in an Australian court.

…

The admissibility of any evidence in an Australian court is dictated by the Commonwealth Evidence Act 1995.  The AFP are seeking the permission and assistance of the ISI to conduct the evidence gathering phase of the Thomas investigations in accordance with Australian law.  By doing so, the AFP will be able to produce a Brief of Evidence in a format that affords the best possible opportunity for charges to subsequently be laid.

The AFP believes that the following avenues of inquiry are required to provide evidence to support any future prosecution:

·Taped record of interview conducted by AFP Officers with Thomas.  An AFP interview team has arrived in Pakistan to conduct a taped record of interview with Thomas.  It is the AFP’s wish that this interview be conducted pursuant to the regulations set out in Part 1C of the Commonwealth Crimes Act 1914.  As previously stated, by conducting the Record of Interview in this manner, any admissions made by Thomas would have a higher chance of being considered admissible in an Australian court.  The considerations listed in Part 1C include the following guidelines for the proper conduct of an interview:

oInterviewee is required to be offered the following rights:

§Access to and communication with a legal practitioner if desired.

§The ability to contact a friend or relative to let them know of his general whereabouts.

oThe interviewee will be given a criminal caution that informs the interviewee that they need not answer any question when asked.

oNo threat, promise or inducement can be offered to the interviewee to participate in the interview.

oThe interviewee should not be under the influence of duress, sleep deprivation, intoxication, hunger or mental illness that will affect his judgment.

oThe interviewee should be supplied a copy of the audio tapes of the interview.

oThe interviewee should be supplied a copy of any transcript of the interview if it is made.

During previous interviews conducted by the AFP in similar circumstances, some of the rights discussed above were withheld due to the conditions imposed by the holding authorities.  Although the interviews proceeded, they will be subject to intense legal scrutiny during subsequent court proceedings.  Although the AFP wishes to formally interview Thomas under any circumstances the ISI will allow, we would like to point out that the probative value of any admissions made on tape by Thomas without being afforded these rights is significantly reduced.

The AFP is placing significant emphasis on the formal Record of Interview procedure because any interview which contains admissions and is conducted in a manner consistent with Australian regulations would form the centrepiece of any subsequent Brief of Evidence against Thomas.” 

1. Access was permitted by ISI, and the proposed interview was then conducted by Australian Federal Police members, Williams and Lancaster, on 8 March 2003.  The Pakistani authorities fixed a very short time frame for the interview and rejected out of hand the possibility of the provision of legal assistance to the applicant in any form.

1. Case notes and minutes prepared by various AFP members were in evidence.  They reveal that the AFP officers appreciated the need to secure evidence admissible in Australian courts before any prosecution could be commenced.  It appears that a more extensive interview, possibly of a more investigative character, was initially contemplated but, because only a limited period of access to the applicant had been allowed, the interview focused predominantly upon his receipt of money from a terrorist organisation and possible membership of a terrorist organisation.

1. In short, whilst the first six interviews were conducted primarily, if not solely, for intelligence-gathering purposes, the AFP interview was directed to the need to obtain evidence of the admissions earlier made, in a form and by a process that would be acceptable in an Australian court.  At this stage in the process, there was simply no evidentiary foundation for any charge to be laid against the applicant.  That would only be possible if the applicant voluntarily made the necessary admissions, under the requisite interview conditions. 

1. It was clearly understood from the outset, by those conducting the interview, that they faced a number of serious problems.  They were aware of the pressures operating upon the applicant.  They knew that his family in Australia had engaged a solicitor on his behalf, and yet they had been informed by the Pakistani authorities that he would not be permitted access to a legal practitioner at that stage.  There is no reason to suppose that the interviewing members were comfortable with this situation, or that they were not endeavouring to do their best.  To the contrary, it seems reasonably clear that the AFP officers wished to ensure that the interview process was compliant with Australian law, and that appropriate efforts were made to achieve that end.

1. As the AFP officers well knew, however, the refusal of the Pakistani authorities to allow the applicant any access to a legal practitioner meant that it was impossible for s.23G of the Crimes Act 1914 (Cth) to be complied with. (We refer to the terms of this section below). Furthermore, the AFP officers appreciated that the circumstances in which the interview was conducted meant, inevitably, that whatever explanations were provided to the applicant, a real doubt had to arise concerning the voluntariness of any admission made. In a case note prepared the following day, AFP Officer Williams stated:

“Due to the obvious admissibility issues attached to this interview in the unusual circumstances all attempts were made to cater for this.

The interview did achieve basic objectives and identified the fact (in a legally admissible format) that Thomas had committed offences against Australian Law in that:  He did receive funds from a terrorist organisation; he (arguable) was a member of al Qaeda; and that he uttered a forged document.  He also made several statements that indicate that his state of mind at the time of association with al Qaeda was one of sympathy for their cause, a sense of brotherhood and that he made approaches for ‘work’.”   

1. We referred earlier to the letter sent by Mr. Pike of the AFP to Pakistani Intelligence Agency, ISI, setting out the desired conditions for the AFP interview.  Two days after the interview, on 10 March, Mr. Pike wrote again to ISI, in the following terms:

“As stated previously, in order to obtain an interview that is acceptable to Australian Courts we must satisfy the provisions of Australian legislation.  The AFP requested that Thomas be provided access to a legal representative and that we would require 3-5 hours to conduct the interview.  We further indicated that communications between Thomas and his legal representative could be facilitated by the use of a telephone.

On 8 March 2003, we were advised that Thomas was available for criminal interview on that same day with certain conditions imposed:  interview strictly limited to 2 hours (which translated to 1.5 hours due to travel and introductions), and no access to legal representative.

Due to these conditions, in addition to other factors, the admissibility of that ROI in Australian Courts has been seriously compromised.” (emphasis added).

1. In evidence at the committal proceeding, Mr. Pike was asked  about the phrase “seriously compromised”.  He said that it was not terminology he would use and that the document was probably drafted by AFP officer Lancaster.  He confirmed, however,  that he had been content for it to go out over his name, because he did hold the view that the admissibility of the record of interview was seriously compromised.  For his part, officer Lancaster acknowledged in evidence that it was his phrase but said that he had overstated the position in the hope of persuading the Pakistanis to reconsider their stance.

1. Since the primary purpose for conducting the interview was to secure admissible evidence for use in an Australian court, the question arises as to why it was decided to conduct the interview in Pakistan and not upon the applicant’s return to Australia, where these problems would never have arisen.  No satisfactory explanation has been given for this decision.  Senior counsel for the Crown referred to evidence given by AFP officers on the voir dire of their concern that the applicant might remain in Pakistan for some time, and might even be released there.  In the latter event, evidence would be necessary to support an extradition application.

1. The reason for the decision to conduct the interview in Pakistan was also addressed by AFP officer Williams at the applicant’s committal:

“Her Honour:

Given that Mr. Thomas’ need to come back into the jurisdiction before you could prosecute, what would the prejudice have been to AFP to wait and interview him in Australia?

A.My view, again, your Worship, I was purely an intelligence officer at the time, I wasn’t involved in the decision-making process as to when things occurred.  However, my opinion would be that every AFP investigation – we were pursuing actual information at the earliest possible opportunity, not necessarily to take advantage of any situation that is present, it was just to – to ensure that the – any evidence that we can capture is captured at the earliest possible opportunity.  And if the interview were to lead to further evidentiary requirements – further avenues of inquiry, the earliest possible opportunity would dictate that we do it at the soonest possible time.”

1. Both before the trial judge and in this court, counsel for the applicant argued that the AFP interview could, and should, have been deferred until the applicant was returned to Australia.  Our attention was drawn to documentary records of communications which took place before 8 March 2003.  These records show that Australian officials had reason to believe, before the AFP interview took place, that the Pakistani authorities were keen for Australian authorities to take Thomas off their hands and have him returned to Australia. 

1. Specifically:

·    In a report by Mr. Adams of the Australian High Commission, regarding a meeting between the High Commissioner, himself and ISI on 24 February 2003, Mr. Adams said:

“The Paks are in no hurry to charge him while they can bleed him for intelligence.  Our own agencies want to get as much as they can also.  AFP wish to conduct a criminal interview in which case they have to issue him a warning about whatever he says may be used against him.  They would wish to do this at the end of the questioning cycle for obvious reasons ... .  They [ISI] do not appear all that interested in charging him, but rather handing him over to Australia so that we can maximise the drama of punishing home-grown terrorists.  Their primary aim has been to get intelligence and  they have got plenty of that.”;

·    At about the same time, the High Commissioner told ASIO and AFP officers that it was his strong feeling that the Pakistanis were looking to “off-load” the applicant to Australia;

·    In early March an AFP officer told ASIO that an ISI delegation visiting Australia had unequivocally stated that they had no interest in pursuing a prosecution in Pakistan;

·    At a meeting on 1 March, involving Mr. Pike of AFP and officers of ASIO and ISI, ISI officers told the Australians that their preferred option was to release the applicant into Australian custody and that “if [he] was tried and gaoled in Australia it would act as a deterrent for other miscreants.”  (In his committal evidence, Mr. Pike confirmed the accuracy of this record).

1. In his evidence on the voir dire, AFP officer Williams acknowledged that he knew, at the time of the interview, that the possibility of the applicant’s return to Australia was being discussed between the AFP and ISI.  According to Mr. Williams, however, “the Department of Foreign Affairs and Interior were telling us the opposite.” 

1. The trial judge said with respect to the non-compliance with s.23G:

“[19]  Normally, failure to avail an interviewee of that right would be fatal to the admission of a subsequent interview. That is because the requirement is of central importance. It is not to be danced around, the subject of artifice or pretended blindness, or the subject of trammelling or undermining.

[20] However, the requirement is not absolute, nor can it be. The officers in this case had ascertained that the provision of legal access would not be permitted in interview in Pakistan. This was no short or finite delay. Thus the interviewing officers were faced with the choice of conducting an interview without the offer of provision of legal access, or postponing the interview for an indefinite period to an indefinite place. So to postpone it would have been poor investigative practice. Trails go cold. Further police investigation could be obviated. Further, it is not hollow to say that the suspect had the right to choose whether to proceed without that legal access. He had the right to choose not to answer, and wait for the legal bus which might never arrive, or to answer, in the legitimate aim of ultimate return to Australia. To say such a choice is no choice at all is revisionism.”[13]

[13]D.P.P. v. Thomas (Ruling No. 3) [2006] VSC 243 at [19]–[20] (footnotes omitted).

1. His Honour’s statement that it would have been “poor investigative practice” to defer the interview, as “trails go cold” and further investigation could be “obviated”, must have been based upon a view that the AFP interview was being conducted for investigative purposes, as with the previous six interviews, in the expectation that new information, not hitherto provided by the applicant, might be forthcoming.  Yet, when distinguishing between the joint team interviews and this final AFP interview, his Honour said there was a “bifurcation of purpose.”  The ASIO interviews, he stated, were conducted for “the gathering of security intelligence”, while the AFP interview was undertaken for the purpose of “the gathering of evidence for trial”.  We will return to this aspect.  

1. In order to address the issues that have arisen in this proceeding it is necessary to set out a number of passages from the transcript of the AFP interview.  Save for one quite significant respect, to which we will return, the interview was conducted in what can be reasonably described as a conventional fashion.  The subjects to be covered were sufficiently outlined, as the applicant acknowledged at the time, and there is nothing to suggest that the questioning was conducted in an overbearing or offensive fashion.

“Q15   Now, do you clearly understand all the matters that we’re investigating?

A      Yeah.

Q16.Okay.  Now, before I go on, I intend to ask you further questions in relation to this matter, but before I do I must caution you that you do not have to say or do anything, as anything you do say or do will be recorded and maybe used in evidence.  Do you clearly understand the caution?

AYes.

Q17.Can you explain in your own words?

AAh, my own words?

Q18.Yeah.

AUm, well it’s like I have say what they say in the movies, “You’re under arrest”.  Anything you can and do say will – can and maybe used against you in a court of law.

LANCASTER:

Q19.But in clear terms it means that any answer you give now in this interview ---

ACould be used as evidence.

Q20.---could be used in evidence in a court in a future court matter?

ARight.

Q21.And um, you’ve just got to be – we’ve got to give you that caution ---

AYep.

Q22.---so you fully understand?

AYour urging me to tell you everything.

Q23.I’m not urging you anything – it’s your choice of whether you participate in this interview or not?

ARight.

WILLIAMS:

Q24.But we’re seekers of the truth?

AYeah, okay.

Q25.But having said that, any questions we ask you, you’re not obliged to answer?

AOkay.

LANCASTER:

Q26.For us to present it in a court of law we have to abide by certain instructions, and this is one of them, we’ve got to caution you – it’s a right to silence.

AOkay.”

[He was informed of his rights under Australian law.]

“Q28.Now, under Australian law you’re entitled to ah, consult with a legal practitioner---

AM’mm.

Q29.---or a lawyer – however um, we’ve been advised that in this case, um, this right will not be available to you today.  This is outside of our control.  Do you clearly understand?

AYep.

[The reference to his entitlement to consult with a legal practitioner indicates that, as he acknowledged in evidence, Lancaster was aware of the provisions of section 23G of the Crimes Act 1914.]

Q54.Okay.  Now, I want you to understand that regardless of what you told investigators during the previous interviews, that you’re not under any obligation to participate in this interview.  Do you clearly understand?

AYes.

Q55.Are you willing to participate in an interview to assist us with our enquiries?

AWell, I want the prosecution to understand that um, I’ve been a very helpful …(indistinct)…. And ah, ---

Q56.We will get into that ---

AI certainly – I certainly aint any big fish.

Q57.Right.

ABut ah, from – you know – I really – I really want – I want – I want to go back to my family and ah – and you know – be a good Australian citizen – I’m – I want – I want the prosecution to really – to think about all the places or the people, all the things that I’ve um, given away and help that I’ve provided – it’s just enormous – it’s a gold mine.

Q58.M’mm, we’re aware of the assistance – well, we’re partially aware of the assistance that you’ve given and we will cover that as part of the interview, so you will have an opportunity to – to explain that.  Um, but at this point, what we’re trying to understand is are you willing to participate in the interview and assist us in our enquiries?

AI’m no lawyer – I’ve got no – I’ve got no bloody idea what I should do?

Q59.Okay.

AI – now, the only thing I can think of is – is to pray again and ask if its – if it’s the right thing to do because I – I have no legal experience, I’m dumb – I’m totally in the wilderness here.

LANCASTER:

Q60.Just – I think we’ve got to look at it clearly that we can’t provide that you legal – um, that solicitor – that’s one – it’s now really your choice of whether you’re going to participate – this is as clear as its going to get – your choice of whether you’re going to participate in this interview knowing that the answers um, could be provided in a court of law in the future – ah a brief of evidence – so that is your – that is your decision to make.  Ah, its not whether you provided evidence, or you providing help to other people, and – and ah, if you want to be good – that’s not the issue – the issue you’ve got to really consider is are you willing to participate in this interview?

WILLIAMS:

Q61.And keep in mind that any questions that I ask you, you’re not obliged to answer those questions, so ---

LANCASTER:

Q62.That’s right, so if there are questions there that you just refuse to answer, just don’t answer them?

AI had no advice.

Q63.Yeah, we understand that and – and obviously we’ve discussed that with you.

LANCASTER:

Q64.And we can’t provide you any guidance?

AUm, can I ask you to at least stop the tape and I’ll ask for guidance, ‘cause I need something and I can’t just – you know – I’ve been thinking about – I’ve been thinking about it a lot of course ---

Q65.Mmm.

A---and I mean as far as I know I really like the secret side of things where I’ve participated and given a hundred and ten per cent effort in – in all I can, and you know and help in everyway possible.  Now, you want to test me out, and you know I mean – I’ve ---

Q66.---(Indistinct)… What we want to do is present it in a format that we can use as evidence?

AWell, I’ve been told for example by other law enforcement agencies, that instead of perhaps um, when new laws are in – coming into ah, coming into effect, they need to be tested, and – and the way they do that is that they asked for ah – a double – a double period of detention, for example, instead of five years, they’d ask for ten.  I mean I can’t spend that time away from my family without having law – you know legal advice, this is ridiculous.

WILLIAMS:

Q67.That’s um, that’s incorrect.  The advice that you’ve received before.  There is none – within legislation there is a set period of imprisonment – a maximum that is set.  Anything under that is up to discretion of the judge, so that advice that you were given – that you were given that they double um, sentences and things like that for first offences or first cases as tests, is incorrect – it’s not flexible there’s no flexibility.

LANCASTER:

Q68.…(Indistinct)… basis though that’s opinion.

AM’mm.

Q69.And new laws like this don’t come in everyday – more like test cases – you just treat it on face value and place it in context of unusual circumstances – um, you’ve been brought here?

AYeah.

Q70.Um, so we can’t offer any – I don’t want to offer any opinion on what – on any sentencing or that – I’m just interested in seeing it – whether there is – whether you Jack THOMAS have committed an offence – that’s all I’m interested in?

AOkay.

Q71.Um, and I can’t – I can’t do that to this time – um, without going through this process – is a ah, normal a process which we have to do – and again, um, we cannot ah, convince you to do it, or promise or induce you to participate on this, and I’m not about to.

AAll right, look, listen ---

Q72.Yeah.

A---can you give me another two minutes?  I’ll just ask okay ---

Q73.H’mm.

A--- and then I’ll put it all down on the line or not.

Q74.…(indistinct)… there’s no obligation, it’s up to you whether you participate, that’s what I want to know.  It can’t be seen as a way to you of getting back to Australia by trying telling us all the answers we want to hear or ---

ADo you mind?

Q75.Ah, no can we leave the tapes going, it doesn’t matter?

AYeah yeah.

Q76.…(indistinct)… turn this tape off.

AThis is just a matter of….

WILLIAMS:

Q77.No that fine.

AI really appreciate that from an interviewees.

LANCASTER:

Q78.It’s so we just can’t be seen to um, be offering anything or saying you should undergo it or – it’s completely your decision.  You understand what it’s got to be used for ---

AYep.

Q79.---so its ah – I’ll have to whether you want to – you know – give – give that version?

AI – I just – I’m just – I want the prosecution to understand that I’m in – I’m in there um, - I’m in there ah, bay.  I’ve put myself right alongside with them.

Q80.M’mm.

AOkay, so you know.

WILLIAMS:

All right.

LANCASTER:

Q81.So do you wish to continue with the interview?

AOkay. …(indistinct)…Yes.

WILLIAMS:

Yes …(indistinct)…

Q82.Now, by participating in the interview you are not to expect the repatriation to Australia – that’s not the purpose of the interview, you understand?

AYes.”

What the applicant said about the AFP interview

1. The applicant gave evidence on the voir dire about the AFP interview.  As we mentioned earlier, the prospect of a formal record of interview was first raised by AFP Officer Lancaster during the fifth joint AFP/ASIO interview.  The applicant recalled being anxious as to what he should be doing.  When he asked those present for advice he was told –

“that I should continue to co-operate as I have been.”[14]

[14]The trial judge did not accept that this statement was made.  It was one of the four exceptions earlier mentioned.

Asked whether he understood the purpose of the so-called “new phase” in the investigation, he said:

“I believe that they mentioned court, but I’ve never been in court.  I don’t – I didn’t understand... what a record of interview was all about.”

He agreed that he had determined to co-operate because he believed it would assist his return to Australia.

1. The applicant was asked whether he had “a belief in relation to the AFP that was in any way different from the belief you had about the role of ASIO so far as it might affect you returning to Australia”.   He said:

“I believed it was a crunch – it was like a test for me to return to Australia. ... Because Jason Williams had been there all along and sitting in on the ASIO/AFP [interviews] I had got used to Jason quite a bit because he’s sort of almost my age... This was a bit formal, a bit more formal but this was like a test to see how far I would put myself, you know, into the hands of the Australian Government and – to see how much I would, you know, if you like, step off the ... I felt that they were testing me.”

The record of interview was the test, he said, and he believed that if that test was not passed –

“I would remain in indefinite detention”.

1. The applicant was given no advance notice of when the interview would take place.  The interview took place in the same room as the sixth AFP/ASIO interview.  The applicant was taken there hooded, handcuffed and shackled, as before.  He was only told on the way that there was to be an interrogation, but not what it was about.  The guard said, “Your people are in here”.   He was not told that what was about to occur was an aspect of the so-called “new phase”. 

1. When the blindfold and hood were removed, the applicant saw that only Williams and Lancaster were present, and that this was “different”.  Lancaster said that he was there to do the record of interview and –

“to see whether or not you’ll assist us”.

The applicant again asked, “Can you advise me?”.  Lancaster replied:

“Just continue to co-operate as you have been”.[15]

[15]See previous footnote.

1. Before the interview began, the applicant said, he was undecided about whether to co-operate.  He was asked to explain why:

“When they mentioned the courts and, you know, you think of gaols and you add up whether or not you want to stay in indefinite detention or – you know, I didn’t know what – but I had no choice really.  I just was praying to God to guide me to whatever was good because, I mean, I really wanted them to see that I’m – to see as a human I needed advice and I was clinging on to them and I wanted to show how – be as – be co-operative as I could so that they would allow me home.”

The AFP officers told the applicant that there had been a number of difficulties in making the arrangements for the interview.  In particular, they told him that they would not be able to provide him with access to legal advice. 

1. The applicant understood, as he said in the interview, that he was being urged to tell the AFP everything.  When asked in evidence where he got that understanding from, he answered:

“From all throughout the ASIO/AFP and indeed from the very beginning I was - I knew that co-operation would ... When I was asked what would I need for my co-operation, I would – and I said I wanted to return home, I understood that by telling them everything, I would be returning home.”

1. The applicant said in evidence that he would “no doubt” have taken the opportunity to consult with a lawyer, had that opportunity been offered to him at that point in the process.  Asked why he was so clear about this, he said:

“Because the Australians there were basically saying in tongues, sometimes hot, sometimes cold, ‘Co-operate it’s better.  No, we can’t’ – ‘we can’t give you any specific advice, but if you co-operate it’s better’.  And I mean I have never been in a court – I’ve never needed a lawyer. ... I didn’t understand this process.”

1. The applicant had previously signed a document authorising a solicitor to have information about him.  He did this because his father had arranged to engage the solicitor, and he wanted to follow his father’s advice.  He did not, however, recall this when he was being questioned:

“No, I didn’t – I didn’t have any rights.  There was no – I didn’t feel I had any rights to anything.”

1. When asked why he said in the interview that he wanted the prosecution to understand that he had been very helpful, he said:

“I understood that everything I did was being passed back to Australia. ... I thought they were doing their job and I was trying to appeal to their human side and be ... as co-operative as I can and do as they have said so that I could return home.

... I didn’t know what I should be doing.  All I knew was that it was best to co-operate.”

1. It was put to the applicant that it appeared from the questioning that he was being put in the position where he had to make a choice.  Asked whether that was how he saw it, he responded:

“Yes.I didn’t feel I – I actually didn’t feel I had a choice.  What I felt like, I was being pressured to make the – to say yes.”

(As noted earlier, the trial judge did not accept the applicant’s evidence that he had no choice.  We deal with this further below).

The trial judge’s findings

1. Defence counsel objected to the introduction of the evidence of the admissions made in the course of the AFP interview.  A hearing on the voir dire was conducted, in the course of which the applicant gave the evidence we have set out.  As earlier indicated, the trial judge concluded that the impugned statements were voluntarily made and decided that no justification existed for their exclusion in the exercise of discretion, either on the basis that their admission would be unfair in the circumstances, or by reason of public policy considerations.

1. Crucially, his Honour found that the applicant made a free choice to answer questions in the interview:

“[42]  I do not accept Mr Thomas’ evidence that he ‘had no choice’ but to answer the AFP questions in the 8 March 2003 interview.  Mr Thomas had a choice and he was acutely aware of that choice. He knew he could decline to answer questions. That knowledge is articulated in the answers to the AFP questions [3, 13-23, 506-7 and 574-578].  He also believed that he was at risk of indefinite detention in Pakistan or of removal to the United States or Cuba. He decided to seek to minimise the chance of indefinite detention in Pakistan or of removal to the United States or Cuba, and to seek to maximise the chances of return to Australia, by answering the questions. That was not a set of alternatives put to him by the AFP interviewers, or by the ASIO officers hitherto, either expressly or implicitly. It was a set of alternatives conceived by Mr Thomas himself. His decision to answer the AFP questions was an informed decision — that is, informed by his knowledge of his right to silence. It also was a rational decision in the circumstances as he perceived them. It was voluntary.”[16]

Again -

“[50]  I do not consider that the puttage of antecedent material [from the AFP-ASIO interviews] or the antecedent ASIO interviewing process, or the antecedent events, contaminated the AFP interview. The AFP interview was conducted fairly. There was no inducement proffered. There was a clear bifurcation in purpose, function and form between the ASIO interviews and the AFP interview. Mr Thomas fully understood it.   The purpose and function of the AFP interview was stated to Mr Thomas at the outset and he understood it.”[17]

[16]D.P.P. v. Thomas (Ruling No. 3) [2006] VSC 243 at [42] (emphasis added).

[17]D.P.P. v. Thomas (Ruling No. 3) [2006] VSC 243 at [50].

1. We now turn to the grounds upon which the applicant seeks leave to appeal against his convictions.  The applicant has also sought leave to appeal against the sentences imposed, but in view of the conclusion we have reached, there is no need to address this complaint.

The application for leave to appeal against conviction

1. In support of this application, it is asserted that:

“1.       The learned trial Judge erred in holding that evidence of the record of interview between the Australian Federal Police and the appellant conducted in Pakistan on 8 March 2003 was voluntary and therefore admissible.

2.Even if the record of interview was voluntary and therefore admissible the learned trial Judge erred in not exercising his discretion to exclude the interview on the grounds of:

i)         public policy;  and/or

ii)       fairness.

3.Having admitted the record of interview, the learned trial Judge erred in not excluding passages of that interview that were the product of cross examination by the interviewing officers and/or grounded by references to previous inadmissible interviews.

4.The learned trial Judge erred in admitting the evidence of the witness Goba.

5.The learned trial Judge erred in his directions to the jury by:

i)qualifying the directions on the standard of proof;

ii)misstating the basis upon which the Crown relied upon the evidence of the witness Goba.

6.The learned trial Judge erred in failing to leave the alternative verdict of recklessly receiving funds from a terrorist organisation in respect of count 1 of the Indictment.”

Ground 1:  were the admissions voluntarily made?

1. In 1948, in McDermott v R.[18]  Sir Owen Dixon gave an account of “the imperative rules of law requiring the rejection of confessional statements unless made voluntarily”.  What his Honour said was adopted by a unanimous court in R v Lee,[19] and has continued to be applied ever since.[20]  His Honour said:

“At common law a confessional statement made out of court by an accused person may not be admitted in evidence against him upon his trial for the crime to which it relates unless it is shown to have been voluntarily made.  This means substantially that it has been made in the exercise of his free choice.  If he speaks because he is overborne, his confessional statement cannot be received in evidence and it does not matter by what means he has been overborne.  If his statement is the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure, it cannot be voluntary.  But it is also a definite rule of the common law that a confessional statement cannot be voluntary if it is preceded by an inducement held out by a person in authority and the inducement has not been removed before the statement is made:  per Cave, J. in R. v. Thompson …  The expression ‘person in authority’ includes officers of police and the like, the prosecutor, and others concerned in preferring the charge.  An inducement may take the form of some fear of prejudice or hope of advantage exercised or held out by the person in authority (Ibrahim v. The King…;  R. v. Voisin …).  That is the classical ground for the rejection of confessions and looms largest in a consideration of the subject.”[21]   

[18](1948) 76 C.L.R. 501.

[19](1950) 82 C.L.R. 133 at 144.

[20]See, for example, Collins v. R (1980) 31 A.L.R. 257 at 259 per Bowen, C.J. and at 305-7 per Brennan, J.; R v Swaffield (1998) 192 C.L.R. 159 at 168 per Brennan, C.J.

[21](1948) 76 C.L.R. 501 at 511-12 (emphasis added).

1. This Court pointed out recently in R v. Tofilau[22] that these principles represent an aspect of –

“… a very carefully constructed balance between the respective rights and obligations of the State and the individual and have been developed to ensure that reliability and integrity is maintained in a system directed to the protection of the rights of both the community and the individual and to the advancement of the interests of justice.  On the one hand, there is an obvious need to bring to account those who have committed serious offences if the objectives of the criminal justice system are to be achieved and societal values vindicated, but, on the other, it cannot be forgotten that those values incorporate the rights of the individual and, in part define the nature of the relationship between the citizen and the community in which he or she resides.”

[22]R. v. Tofilau [2006] VSCA 40 at [152].

1. The onus rests on the prosecution to establish on the balance of probabilities[23] that a confessional statement made by an accused person is to be regarded as voluntary.  The ultimate question, as Brennan, J. made clear in Collins v. R.,[24] is –

“whether the will of the person making the confession has been overborne, or whether he has confessed in the exercise of his free choice.  If the will has been overborne by pressure or by inducement of the relevant kind, it does not matter that the police have not consciously sought to overbear the will.  A finding that there has been an attempt to overbear by persons in authority is neither determinative of, nor an essential prerequisite to, a finding that the will of the person making the confession was overborne.  …

A confession is not held to be involuntary merely because the confessionalist is by nature or temperament predisposed to confess and is furnished with an opportunity to do so;  it is the effect of an external factor, of the kind referred to by Dixon J in McDermott’s case, upon the will which determines admissibility.  ‘Voluntary’ does not mean ‘volunteered’, but ‘made in the exercise of a free choice to speak or be silent’ … .[25]

… The principle, focussing upon the will of the person confessing, must be applied according to the age, background and psychological condition of each confessionalist and the circumstances in which the confession is made.  Voluntariness is not an issue to be determined by reference to some hypothetical standard:  it requires a careful assessment of the effect of the actual circumstances of a case upon the will of the particular accused.”[26]

[23]With respect to the burden of proof when the issue of voluntariness arises, see Cleland v. R. (1982) 151 C.L.R. 1 at 19, per Dixon, J. and the cases there cited.

[24]Collins v. R. (1980) 31 A.L.R. 257.

[25]His Honour here referred to Lee’s case, supra, at 149.

[26]At 307 (emphasis added).

1. The applicant contends that, when a careful assessment is made of the effect on him of the actual circumstances in which he found himself, he did not, in any practical sense, have a free choice to speak or be silent.  It was quite unrealistic, the applicant contends, for the Judge to have reached the conclusion that he did have such a choice.

1. In our view, this submission must be upheld.  Our reasons are as follows.            

1. The applicant had been repeatedly told by his Pakistani interrogators, to whose control he was subject at all times, that his fate would to a very substantial extent be determined by the extent of his co-operation.  This was also emphasised  by members of the Australian joint team, one of whom said to the applicant in the first interview:

“Q.  On that basis I would encourage you to be completely open and honest with us and then down the track, down the track once we’ve prepared our reports then our analytical people back in Canberra can then look at other information they hold and then we can determine whether you’ve been co-operative.”

Again, an Australian official said to the applicant in the second interview:

“About all we can do for you is reflect back to our Pakistani colleagues and to our Government as to whether we consider that you’ve been co-operative or not. ...Now whether that does you any good is something that I can’t comment on either.  It’s something you need to decide in your own mind, would I rather be perceived as being co-operative or would I rather be perceived as being obstructionist and difficult and potentially malicious in coming out with stories...”

1. Both the Pakistani officials and the Australian joint team members who were present for the various interviews were clearly persons in authority, as that term is used in the cases.  There is no exhaustive definition of this term but it is clear that no narrow view is to be taken of the classes of persons who may be so categorised.[27]  As this Court said in Tofilau:[28]

“Over the years, the issue has arisen in many different sets of circumstances, but all have involved the notion that, viewed from the perspective of the maker of the statement, the person holding out the inducement was, by reason of their status vis a vis that person or with respect to the investigative or prosecution process, in a position to influence his or her situation in relation to the investigation or the prosecution of some criminal offence.

It is not to the point to enquire whether the person in authority has abused their position in holding out the inducement. Sometimes, actual abuse is involved, but it is not necessary that that be the case or even that the profferor is aware that an inducement is being held out. Frequently, there is no practical capacity in the person holding out the inducement to enforce the threat or provide the promised advantage. However, from the perspective of an individual who fears prejudice by reason of the apparent ability of the proferror to act to their detriment, the situation could be quite alarming and the inducement regarded as very powerful.  Similarly a person who, from the viewpoint of the maker of the statement, appears to possess authority may be perceived as able to influence the course of events in relation to a prosecution or possible prosecution favourably to the maker.  The prospect of release on bail, the dropping of charges, the non-charging of other persons or the making of representations for leniency on his or her behalf may all operate as powerful pressures upon an individual to speak.”[29]

[27]See the discussion in R. v. Dixon and Smith (1992) 28 N.S.W.L.R. 215 at 225 per Wood, J.

[28]R. v. Tofilau [2006] VSCA 40.

[29]At [160]-[161] (emphasis added).

1. From the viewpoint of the applicant, and in view of what had been said to him, the Pakistani officials, in whose custody he remained, and the Australian officials who  interviewed him, would undoubtedly have been perceived by him as “able to influence the course of events” favourably to him, with respect to detention or prosecution.  The repeated statements by various officials to the effect that co-operation would be in the applicant’s best interests were calculated, if not intended, to create that perception. 

1. The Pakistani officials put explicitly to the applicant the possibility, on the one hand, of returning to his family and, on the other, a very different fate.  They made clear that the Australian authorities would only be able to assist him if he could be seen to have co-operated fully.  The Australians present did nothing to distance themselves from the position attributed to them.   Acquiescence alone would have been sufficient confirmation in the circumstances but the Australian officials went further and, by their remarks, impliedly endorsed what the Pakistanis had said. 

1. Importantly, the “hope of advantage” was on each occasion held out in the presence of Sergeant Williams, who was involved in all six of the joint team interviews and in the AFP interview on 8 March.  The considerable power of the inducements to co-operate would undoubtedly have been appreciated by Sergeant Williams and by the other AFP members who participated.   

1. Specific reference should be made to the separate occasions in the course of the joint team interviews when the applicant was, first, shown a photograph of himself with his wife and daughter and, secondly, was given a letter from his wife, and invited to read it.  As to these matters, his Honour said in his ruling:[30]

“Whilst giving full allowance as one must to the emotional trigger of items such as the photograph and letter in the situation Mr Thomas then was, I do not consider the actions described above were improper or manipulative.  Nor is there any evidence on the audio tapes that Mr Thomas was distressed or overwrought by either of the two events. Care must be exercised in interviews including intelligence interviews to avoid unfair dealing with interviewees and particularly to avoid emotional manipulation of them.  I do not consider that occurred here.”

[30]D.P.P. v. Thomas (Ruling No.3) [2006] VSC 243 at [30].

1. With respect, we disagree.  It is unnecessary to consider whether what occurred was improper, but we have no doubt that these two incidents did constitute emotional manipulation of Thomas.  The incident with the letter is capable of no other explanation.  There was no occasion for the AFP officer to give the highly emotive prompts he did, referring to the letter having been held by the applicant’s wife and having come from a house where he had once been.  Whatever was intended by these references, they could have had only one effect on someone in the applicant’s position – that is, to remind him of how badly he wished to be reunited with his family and, by clear implication, that his responsiveness to questions would affect the likelihood of that occurring.

1. In relation to the photo incident, the Australian questioner presented the photo to the applicant saying:

“I hope that doesn’t upset you.  But you might like to see it anyway.”

Thomas having said, twice, that he was “very happy” to see the photograph, the questioner then said – twice – that he/they –

“might give you another look at that later”.

The last remarks were calculated, if not intended, to remind the applicant that he was dependent on his captors and interviewers for favours.  In particular, he was being reminded that the interviewers held the power to allow, or deny, him a further emotional lift by seeing the photograph again.  The term “emotional manipulation” is an apt description.

1. The defence submission to the trial Judge relied squarely on the common law principles to which we have referred and, in particular, argued that inducements had been held out to the applicant by persons in authority.  In the event, his Honour made no reference in his ruling either to the general principles or to the concepts of “inducement” and “persons in authority”.  As a result, it is not clear from the ruling what view his Honour formed of the contention that inducements were indeed held out to the applicant by persons in authority and that they impacted on his decision to speak.

1. His Honour did accept that the applicant was concerned to minimize the undoubtedly frightening prospect of indeterminate detention, with which he had effectively been threatened by his custodians.  He also accepted that the applicant believed that the best course for him to adopt to reduce the chance of this happening was to demonstrate as forcefully as he could that he was prepared to co-operate fully with them and, as far as possible, ingratiate himself with the Australian authorities in the anticipation that they might influence the situation in his favour.  This assessment by the applicant was made against the background and incidents of his detention and earlier interrogation.  It certainly does not require any feat of imagination or any high level of sensitivity to appreciate that the prospects with which the applicant was faced had considerable potential to overbear his will.

1. His Honour concluded, however, that because the applicant understood that the interview of 8 March 2003 was being conducted for different purposes from those of the earlier interviews, the inducements could not be seen to have influenced his decision on 8 March to answer questions. 

1. As appears from the passage of the Ruling we set out earlier, his Honour rejected the contention that the applicant “had no choice” in that situation, holding instead that the alternatives were “conceived” by the applicant himself.  The applicant’s decision was considered to be rational “in the circumstances as [he] perceived them” and, accordingly, the admissions that he then chose to make were to be regarded as voluntary. 

1. With great respect to his Honour, we cannot accept this reasoning.  In our view, it is clear from the extracts from the various interviews set out earlier, and from the very circumstances themselves, that these “alternatives” were not simply “conceived” by the applicant.  Rather, they were inherent in his situation and  were presented to him, directly and indirectly, by the officials on more than one occasion.  It was not to the point that these clearly powerful inducements were not held out at the time of the AFP interview nor that the interview itself was directed to a different objective from that of the interviews in which the inducements were held out.  What was important was whether the inducements were held out by persons in authority and whether they were likely to have been operating upon the mind of the applicant at the time he was interviewed on 8 March 2003. 

1. In our view, it was immaterial whether or not the applicant appreciated the difference between an interview conducted for intelligence-gathering purposes and  an interview conducted for the purpose of Australian law.  What is striking is the degree of continuity between the earlier interviews and the last:  same place, same AFP personnel, same topics.  It was hardly surprising that the applicant referred, during the AFP interview, to his hope that “the prosecutor [would] really think about all the places or the people, all the things that I’ve given away and help that I’ve provided – it’s just enormous – it’s a gold mine.”  

1. Put bluntly, there can be little doubt that it was apparent to the applicant, at the time of the AFP interview, as it would have been to any reasonable person so circumstanced, that, if he was to change his current situation of detention in Pakistan and reduce the risk of indeterminate detention there or in some unidentified location, co-operation was far more important than reliance on his rights under the law.  Indeed, it is apparent that he believed – and, we would add, on objectively reasonable grounds - that insistence upon his rights might well antagonise those in control of his fate.

1. Those conducting the interview were well aware of his earlier, but inadmissible admissions and knew something, at least, of the treatment to which he had been subjected, including the threats made against him and his wife by the American, “Joe”.  

1. As far as the applicant was concerned, nothing had changed.  It was made clear to him that his future still rested in the hands of the Pakistan authorities and impliedly that his future would be considered at inter-governmental level.  He was reminded at the commencement of the interview that –

“although you are currently being detained by Pakistan authorities, you are not under arrest for any offence under Australian law,”

and his state of mind at the time can be seen in the passage:

“Q54.  Okay.  Now, I want you to understand that regardless of what you told investigators during the previous interviews, that you’re not under any obligation to participate in this interview.  Do you clearly understand?

A      Yes.

Q55.  Are you willing to participate in an interview to assist us with our enquiries?

A      Well, I want the prosecution to understand that um, I’ve been a very helpful … (indistinct) … And ah, ---

Q56.  We will get into that ---

A      I certainly – I certainly ain’t any big fish.

Q57.  Right.

A      But ah, from – you know – I really – I really want – I want – I want to go back          to my family and ah – you know – be a good Australian – I’m – I want – I want the prosecution to really – to really think about all the places or the          people, all the things that I’ve um, given away and help that I’ve provided – it’s just enormous – it’s a gold mine.”

1. The inducements remained operative, their power undiminished.  Naturally, the Crown’s submissions placed considerable emphasis on the clear statements made by the interviewing AFP officers during the 8 March interview, to the effect that the applicant was not to expect repatriation to Australia to be the result of his participating in the interview.[31]  In our view, these statements could not, in the circumstances, have dispelled the “hope of advantage” created by the earlier exhortations to co-operate. 

   [31]See questions 74, 78 and 82 set out above. 

1. Nor is it to the point that the applicant made the admissions in the knowledge of the existence of a right to silence under Australian law, if in truth he had no real opportunity to exercise that right.  As this Court pointed out in Tofilau[32]:

“There are almost certainly, in any given situation, a multiplicity of situational and psychological factors operating on the mind of an individual when considering whether anything and, if so what, should be said about a matter that may affect them or others around them. The notion of a free choice does not require an absence of possible benefits or detriments upon which the will may operate, but the absence of pressure that overbears the individual’s will thereby restricting the available choices or the manner of their exercise.”

[32]R. v. Tofilau [2006] VSCA 40 at [155].

1. Of course, the applicant could have declined to answer questions and subjected himself to what he clearly perceived would be an increased risk of indeterminate detention in a foreign country.  Realistically, however, that alternative prospect was so daunting that few would be likely to have accepted the risk.  Whatever the threat or inducement proffered, there is almost always a choice if the individual is prepared to accept the consequences of the threat being realised or the inducement denied.  Even the threat “Confess or be tortured” can be said to involve a choice, and a chance that torture may not be applied.  But it could never be regarded as a free choice in the relevant sense. 

1. What is important is whether the applicant could, in any real sense, be said to have had a free choice to speak or remain silent.    In our view, the Judge fell into error by divorcing the interview from the context in which it occurred, a context which his Honour found operated on the will of the applicant.   It is necessary, when considering the admissibility of an inculpatory statement made by a person in the course of a police interview, to bear in mind that evidence of this kind differs from most other forms of evidence.  The most obvious difference, which has long been identified and to a large extent underlies the principles governing the admissibility of such evidence, is that the evidence comes into existence at the time of the interview and is a product not only of the interview itself but of many factors, both external and personal to the maker.  Whether or not an individual decides to speak or remain silent, and the content and form of any statement made, will inevitably be influenced by his perception of the situation in which he is placed at that time. 

1. Obviously, the fact and circumstances of his detention, the various inducements held out and threats made to him, and the prospect that he would remain detained indefinitely, can be seen to have operated upon the mind of the applicant when he decided to participate in the 8 March interview.  Whilst nothing occurred in the interview itself that could be seen to overbear the will of the applicant, there can be little doubt he was, at that time, subject to externally-imposed pressure of a kind calculated to overbear his will and thereby restrict, in a practical sense, his available choices and the manner of their exercise.  His endeavours to persuade the interviewers of his good faith and the extent of his co-operation up to that point indicate that he was, as the trial judge found, seriously concerned about what would befall him if he failed to do so. 

1. The interview was conducted in circumstances where the interviewers were well aware of the extreme pressure to which the applicant was subject, including his knowledge that they knew a great deal from the earlier interviews.  They must have recognised that there was great pressure on him and, therefore, that this was a situation which carried a substantial risk that his will might be overborne.

1. Admissions made in the circumstances we have described could not, in our view, be held to be voluntary.  It follows that the evidence of the interview of 8 March 2003 should not have been admitted.  This application should be allowed and the convictions set aside.

1. In view of this conclusion, it is not necessary to address the other grounds of the application.  For completeness, however, they will be dealt with briefly.

Ground 2:  assuming the admissions to have been voluntary, should the evidence have been excluded in the exercise of discretion?

1. This ground falls to be considered on the assumption that (contrary to our view) the admissions of the applicant in the 8 March interview were to be regarded as voluntarily made.  The applicant argued that the proper exercise of the trial Judge’s discretion required the exclusion of this evidence from the trial on the basis that its admission was unfair to the applicant or because of considerations of public policy.

1. According to the applicant’s submission, the elements which should have been considered on the issue of the exercise of the discretion were:

(a) the inability of the applicant to obtain the legal advice envisaged by Part 1C of the Crimes Act 1914;

(b)      the vulnerability of the applicant in these particular circumstances;  and

(c)       the contamination of the record of interview by the previous joint team interrogations, and their potential or actual use as levers to remind the applicant of his earlier answers. 

1. The nature of the unfairness discretion, and its underlying rationale, were addressed by Brennan, C.J. in R. v. Swaffield and Pavic: [33]

“A discretionary category of exclusion arose after the rule against admission of involuntary confessions was established and in response to a new set of circumstances. It came to be known as the discretion to exclude for unfairness. In McDermott … Dixon J explained:

‘[T]here has arisen almost in our own time a practice in England of excluding confessional statements made to officers of police if it is considered upon a review of all the circumstances that they have been obtained in an improper manner. The abuse of the power of arrest by using the detention of an accused person as an occasion for securing from him evidence by admission is treated as an impropriety justifying the exclusion of the evidence. So is insistence upon questions or an attempt to break down or qualify the effect of an accused person’s statement so far as it may be exculpatory.’[34]

[33](1998) 192 C.L.R. 159 at 171-2 (emphasis in original).

[34](1948) 76 C.L.R. 501 at 513.

1. Later, the Chief Justice said:

“In Lee … , the Court acknowledged the recency of the origin of the discretion and agreed … that the unfairness which enlivened the discretion ‘must arise from the circumstances under which [the confession] was made’. But the Court held that it is relevant to consider whether or not the circumstances are calculated to cause an untrue admission to be made … . Significantly, the Court denied that evidence of a voluntary confession should be rejected as ‘some sort [of] sanction for a failure by a police officer to obey the rules of his own organisation…, a matter which is of course entirely for the executive’… . If the rejection of evidence is not to be seen as a sanction for a failure by a police officer to obey police regulations, the fairness discretion must have a purpose other than police discipline. The purpose is, of course, to safeguard a person from the unfairness of using his confession in evidence against him at his trial. The relevant unfairness is not so much in ‘the use made by the police of their position in relation to the accused’, as Dixon J said in McDermott …, but in the admission into evidence against an accused of a confession obtained by improper or illegal means. Ex hypothesi, any such confession has been voluntarily made.”[35]

[35](1998) 192 C.L.R. at 159 at 173 (emphasis added).

1. Although there has over the years been a degree of uncertainty concerning the area of operation of this discretion, it appears always to have been accepted that some relationship must exist between the behaviour of those involved in the interrogation, the circumstances under which it is conducted and the state of mind of the confessionalist, such that the presentation of the resultant evidence would be productive of an unfair trial.

1. The applicant also invokes public policy considerations of the kind discussed by the High Court in Bunning v. Cross.[36]  There, as here, statutorily-enacted safeguards had not been complied with.  In a passage which is as relevant today as in 1978, Stephen and Aickin JJ (with whom Barwick CJ agreed) said:

“The liberty of the subject is in increasing need of protection as governments, in response to the demand for more active regulatory intervention in the affairs of their citizens, enact a continuing flood of measures affecting day-to-day conduct, much of it hedged about with safeguards for the individual.  These safeguards the executive, and, of course, the police forces, should not be free to disregard.  Were there to occur wholesale and deliberate disregard of these safeguards its toleration by the courts would result in the effective abrogation of the legislature’s safeguards of individual liberties, subordinating it to the executive arm.  This would not be excusable however desirable might be the immediate end in view, that of convicting the guilty.  In appropriate cases it may be ‘a less evil that some criminals should escape than that the Government should play an ignoble part’ – per Holmes J. in Olmstead v. United States.  Moreover the courts should not be seen to be acquiescent in the face of the unlawful conduct of those whose task it is to enforce the law.  On the other hand it may be quite inappropriate to treat isolated and merely accidental non-compliance with statutory safeguards as leading to inadmissibility of the resultant evidence when of their very nature they involve no overt defiance of the will of the legislature or calculated disregard of the common law and when the reception of the evidence thus provided does not demean the court as a tribunal whose concern is in upholding the law.

...

If the unlawfulness was merely the result of a perhaps understandably mistaken assessment by the police of the inferences to be drawn from what they observed of the appellant’s conduct this must be of significance in any exercise of discretion.  Although such errors are not to be encouraged by the courts they are relatively remote from the real evil, a deliberate or reckless disregard of the law by those whose duty it is to enforce it.

Where... the illegality arises only from mistake, and is neither deliberate nor reckless, cogency is one of the factors to which regard should be had.  It bears upon one of the competing policy considerations, the desirability of bringing wrongdoers to conviction.”[37]

[36](1978) 141 C.L.R. 54.

[37]At 77- 79.  (footnotes omitted).

1. In Swaffield, Brennan, C.J. pointed out that the chief object of “the public policy discretion” was –

“the constraining of law enforcement authorities so as to prevent their engaging in illegal or improper conduct, although the securing of fairness to an accused is a relevant factor in the exercise of the discretion. But if a confession of an offence is voluntarily made in circumstances that throw no doubt on its reliability, it is difficult to identify the unfairness that may be thought to affect the admission of his confession in evidence at his trial for that offence. The unfairness, if any, must consist in the admission of a confession which would not have been made or would not have been made in the form in which it was made if a person or persons in authority had treated the confessionalist in a lawful and proper manner. Unfairness of this kind, if it is to be regarded as unfairness, is different from the unfairness of admitting a confession of dubious reliability into evidence with the attendant risk of wrongful conviction. Unfairness of the former kind is simply the disadvantage suffered as the result of the conduct of the person or persons in authority. To characterise that disadvantage as ‘unfair’, the conduct which produced the confession must be of such a nature and degree that no suspect in the confessionalist’s place ought to be subjected to it. That judgment must be made by reference to either a controlling statute or public policy.”[38]  

[38](1998) 192 C.L.R. 159 at 178.

1. On the assumption that the applicant had exercised a free choice to speak or remain silent, the questions that would remain would be –

1.        whether the conduct of the police, in interviewing the applicant in the       absence of an opportunity for him to secure legal advice, created unfairness in      that given such access he may well not have made inculpatory statements at   all or may not have made them in the same form;  and

2.        whether, in the circumstances, the reception of the evidence should be       regarded as contrary to public policy. 
(For reasons which follow, it is unnecessary to address the other arguments directed at the exercise of discretion.)

1. In its relevant part, s.23G of the Crimes Act 1914 provides as follows:

“(1)    Subject to section 23L, if a person is under arrest ..., an investigating official must, before starting to question the person, inform the person that he or she may:

(a)...

(b)communicate, or attempt to communicate, with a legal practitioner of the person’s choice and arrange, or attempt to arrange, for a legal practitioner of the person’s choice to be present during the questioning;

and the investigating official must defer the questioning for a reasonable time to allow the person to make, or attempt to make, the communication and, if the person has arranged for a legal practitioner to be present, to allow the legal practitioner to attend the questioning.”

1. As appears from the opening words of s.23G(1), that requirement is – like the other requirements imposed on investigating officials by Part 1C of the Crimes Act - subject to the exceptions created by s.23L. The effect of s.23L(1) is that the requirement imposed by s.23G does not apply if, and for so long as, the investigating official –

“believes on reasonable grounds that:

(a)compliance with the requirement is likely to result in:

(i)an accomplice of the person taking steps to avoid apprehension;  or

(ii)the concealment, fabrication or destruction of evidence or the intimidation of a witness; or

(b)if the requirement relates to the deferral of questioning – the questioning is so urgent, having regard to the safety of other people, that it should not be delayed by compliance with that requirement.”

1. It can be seen immediately that none of the exceptions had any application to the present case. So much was properly conceded by senior counsel for the Crown before us. As mentioned earlier, his Honour referred to the “central importance” of the requirement imposed by s.23G(1). He went on to say that “the requirement – is not absolute, nor can it be.” Had this been a reference to the exceptions created by s.23L, the statement would have been unexceptionable. His Honour did not, however, make any reference to s.23L. Rather, in explaining why the requirement could not be absolute, his Honour said that:

“The interviewing officers were faced with the choice of conducting an interview without the offer of provision of legal access, or postponing the interview for an indefinite period to an indefinite place.  So to postpone it would have been poor investigative practice.  Trails go cold.  Further police investigation could be obviated.”[39] 

[39]D.P.P. v. Thomas(Ruling No. 3) [2006] VSC 243 at [20].

1. With respect, his Honour was in error in so saying. The requirement imposed by s.23G is subject to the exceptions created by s.23L, and none other.[40]

   [40]His Honour may have had in mind the discretion to admit evidence of a confession notwithstanding non-compliance with s.23G, although strictly the discretion does not qualify the section.

1. In the circumstances, the investigating officials did not “defer the questioning for a reasonable time” to allow the applicant to communicate with a legal practitioner.  Senior counsel for the Crown argued that there had already been a deferment for a reasonable time, in the period leading up to the AFP interview.  In that time, as we have noted, the Australian officials had ascertained that under no circumstances would the applicant’s Pakistani custodians allow him any access to a lawyer.  Ms Abraham argued that it would therefore have been pointless to defer the questioning.

1. In our view, it would be contrary to public policy for this Court to condone what was a knowing non-compliance with the legal protection afforded by Australian law. It is expressly provided by s. 3A of the Crimes Act 1914 that the Act has extra-territorial operation. Accordingly, these protections apply to Commonwealth investigations conducted anywhere in the world.

1. The investigating officials had, we accept, acted in good faith in requesting of the Pakistani authorities that they allow the applicant access to a legal practitioner. The outright refusal of that request meant that s.23G could not be complied with. The notion of deferment for “a reasonable time” has no meaning when the suspect has been prohibited from making any “attempt to contact a legal practitioner”, of the kind contemplated by the section.

1. In our view, there was only one course properly open to the investigating officials in the light of the position taken by the Pakistani authorities.  It was to acknowledge that no formal record of interview could be conducted so long as the applicant was in Pakistan since, as the investigating officials appreciated, any such interview would be unlawful, that is, would be contrary to Australian law. 

1. The impossibility of compliance with s.23G was a function of the fact that the applicant was in Pakistani custody, not Australian custody. That circumstance had presented no obstacle in the way of the intelligence-gathering interviews which had been taking place, the product of which was as we have said of obvious interest to Australian intelligence, as well as to Pakistani and American intelligence agencies. Thus understood, the position of the applicant as a Pakistani prisoner afforded the opportunity for intelligence-gathering, but it rendered the collection of admissible evidence impossible. That is where the matter should have ended. Any other conclusion would seriously undermine the extra-territorial operation of a provision such as s.23G, if not negate it altogether.

1. We respectfully adopt what was said by McHugh, J. in Pollard v R.,[41] in a passage relied on by defence counsel in submissions to the trial Judge. His Honour was dealing with s.464C(1) of the Crimes Act 1958 (Vic), which is practically identical with s.23G(1). What his Honour said in relation to the Victorian provision applies with equal force to the Commonwealth provision. He said that the provision about access to a legal practitioner –

“lays down rules which the legislature declares must be followed if a confession or admission made by a person in custody is to be regarded as fairly obtained.  A breach of those rules makes it prima facie unfair to the accused to admit evidence obtained as the result of the breach.  The evidence may displace the prima facie case of unfairness if it shows that the breach was insignificant or was irrelevant to the obtaining of the confession or admission.  But it is not for the courts to disregard a breach of [the provision] by analysing the circumstances of the case by reference to general notions of fairness.  The rules which [the provision] enacts express the legislature’s judgment as to what is required if a confession or admission made by a person in custody is to be regarded as fairly obtained.  Although [the provision] does not declare that evidence obtained in breach of the section is inadmissible, failure to comply with the section will ordinarily be unfair to the accused and call for the exclusion of evidence obtained after the breach.” [42]

[41](1992) 176 C.L.R. 177.

[42]At 236.

1. We would also respectfully adopt what was said by Deane J in the same case.  His Honour said:

“...[T]he principal considerations of ‘high public policy’ which favour exclusion of evidence procured by unlawful conduct on the part of investigating police transcend any question of unfairness to the particular accused.  In their forefront is the threat which calculated disregard of the law by those empowered to enforce it represents to the legal structure of our society and the integrity of the administration of criminal justice.  It is the duty of the courts to be vigilant to ensure that unlawful conduct on the part of the police is not encouraged by an appearance of judicial acquiescence.  In some circumstances, the discharge of that duty requires the discretionary exclusion, in the public interest, of evidence obtained by such unlawful conduct.  In part, this is necessary to prevent statements of judicial disapproval appearing hollow and insincere in a context where curial advantage is seen to be obtained from the unlawful conduct.  In part it is necessary to ensure that the courts are not themselves demeaned by the uncontrolled use of the fruits of illegality in the judicial process.”[43]

[43]At 202-203.

1. In our view, his Honour’s exercise of discretion miscarried.  Had it been necessary for us to do so, we would have upheld this ground of appeal also. 

Grounds 3, 4, and 5

1. Ground 3 relates to the admission into evidence of particular passages in the record of the interview conducted on 8 March 2003.  It was contended on behalf of the applicant that the impugned passages were the product of cross-examination and/or grounded in references to the earlier but inadmissible interviews.  It is, however, apparent that the matters covered were relevant and had probative value in relation to the issues before the jury.  There was nothing about them that suggested that that value might have been outweighed by their possible prejudicial impact in the circumstances.  The questions asked by the interrogators could not be sensibly received as unfair, or in the nature of cross-examination, nor did they by implication convey any inappropriate or prejudicial reference to the earlier interviews.

1. Ground 4 makes a complaint regarding the trial judge’s directions on the standard of proof and asserts that he misstated the basis upon which the prosecution relied upon the evidence of a witness named Goba.  Goba had been at the Al Faroq camp and gave evidence of his understanding of the nature of the activities conducted there.  Both of these complaints are, in our view, without substance.

1. Ground 5 claims that the trial judge should have left the alternative verdict of an offence under section 102.6(2) of the Criminal Code, that is, recklessly receiving funds from a terrorist organisation in respect of count 1. As the Crown pointed out in submissions to this Court, it was common ground that the applicant was well aware that al Qaeda was a terrorist organisation, that Bin Attash was associated with and that he appreciated the source of the funds with which he was supplied. Senior counsel who appeared for the applicant, both in this Court and at the trial, did not seek to have this alternative presented to the jury.

1. We agree with the Crown’s submission that, considered in the context of the trial, it would have been quite unrealistic to put before the jury the possibility of a verdict based upon a factual scenario for which neither side contended and which was simply not supported by evidence.

Conclusion

1. For the reasons we have given, the application for leave to appeal against conviction should be granted, the appeal treated as having been instituted and heard instanter, the appeal allowed and the convictions quashed.  Counsel for the Crown having acknowledged that both convictions depended upon the record of interview being admissible, we will direct that verdicts of acquittal be entered.

[POSTSCRIPT:  Following the publication of the reasons for judgment, but before the pronouncement of final orders, the respondent Director of Public Prosecutions sought leave to be heard in relation to the proposed direction that verdicts of acquittal be entered.  Following argument, the Court adjourned for further hearing the question of whether there should be directed acquittals or whether, as the Director proposes to submit, there should be a re-trial.  The short reasons given for this ruling are published separately.  The Court then made orders granting the application for leave to appeal, allowing the appeal and quashing the convictions.]

Applications to be heard as amicus curiae

1. In advance of the hearing, the Court received written applications from the Human Rights Law Resource Centre Limited and Amnesty International Australia, respectively, to be heard as amicus curiae.  The applications were in each case accompanied by detailed written submissions.

1. The HRLRC wished to make submissions in respect of international law, and its influence upon the common law and the exercise of judicial discretion, in the areas of:

(a)       torture and other cruel, inhuman or degrading treatment or   punishment;

(b)      arbitrary detention;

(c)       the right to legal representation;

(d)      the right to be treated with humanity and with respect for the           inherent dignity of the human person;  and

(e)       the right to health (including mental health) and the provision of      adequate medical care (including mental health care).

1. Amnesty wished to make submissions –

"in relation to the principles and human rights considerations that are relevant to the exercise of the public policy discretion to exclude evidence obtained from a person suspected of terrorist offences who is being held in detention in a developing country and has not been afforded his right to legal counsel during questioning.”

1. Having heard oral submissions from senior counsel for each agency, the Court rejected both applications.   We now state shortly our reasons for that decision.

1. As both applicants acknowledged in their written submissions, the decision whether to hear an amicus curiae is entirely in the Court’s discretion.  As Brennan, C.J. explained in Levy v. Victoria:

"That discretion is exercised on a different basis from that which governs the allowance of intervention.  The footing on which an amicus curiae is heard is that that person is willing to offer the court a submission on law or relevant fact which will assist the Court in a way in which the Court would not otherwise have been assisted.”[44]

His Honour went on:

"It is not possible to identify in advance the situations which the Court will be assisted by submissions that will not or may not be presented by one of the parties nor to identify the requisite capacities of an amicus who is willing to offer assistance.  All that can be said is that an amicus will be heard when the Court is of the opinion that it will be significantly assisted thereby, provided that any cost to the parties or any delay consequent on agreeing to hear the amicus is not disproportionate to the assistance that is expected.”[45]

[44]Levy v Victoria (1997) 189 C.L.R. 579 at 604 (footnotes omitted).

[45]At 604-5.

1. The arguments which the applicant wished to advance in his application for leave to appeal were founded on established principles of the criminal law.  They are principles which themselves embody important notions of individual rights.  In view of the extensive submissions filed on his behalf and on behalf of the Crown, as to the applicability of those principles to the present case, we were not persuaded that hearing either proposed amicus would assist us in a way in which we would not otherwise have been assisted.[46] Significantly, Mr Lasry for the applicant acknowledged that there was nothing in the proposed amicus submissions which he could not advance in submissions on his client’s behalf. 

   [46]See R. v G.J.  [2005] NTCCA 20 at [63]-[65].

1. Following the refusal of the amicus applications, counsel for the applicant filed two supplementary written submissions, embodying much of the material from the amicus submissions.  In part, those supplementary submissions related to the questions of voluntariness and legal representation, which we have dealt with above.  As is apparent from the reasons we have given, it has not been necessary for the disposition of this application to make reference to that material.

1. The supplementary submissions also addressed questions of arbitrary detention, and torture and other cruel, inhuman or degrading treatment by a State.  No question of that kind falls for determination on this application. 

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