R v Thomas (No 4)
[2008] VSCA 107
•16 June 2008
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 37 of 2008
| THE QUEEN |
| v |
| JOSEPH TERRENCE THOMAS (NO 4) |
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JUDGES: | MAXWELL ACJ, BUCHANAN and VINCENT JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 7, 19 March and 22 May 2008 | |
DATE OF JUDGMENT: | 16 June 2008 | |
MEDIUM NEUTRAL CITATION: | [2008] VSCA 107 | |
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CRIMINAL LAW – Appeal – Convictions quashed – Retrial ordered – Application to rescind order for retrial – Whether order for retrial based on misapprehension of facts – Whether evidence ‘unknown and unknowable’ at time of trial – Whether matters known to Australian Security Intelligence Organisation known to or capable of being ascertained by Australian Federal Police/Director of Public Prosecutions – Director of Public Prosecutions for Nauru v Fowler (1984) 154 CLR 627.
CRIMINAL LAW – Security and intelligence – Whether ASIO active participant in criminal investigation – Activities of ASIO and AFP conducted in parallel rather than joint prosecution – Whether knowledge of ‘indivisible’ Crown – Statutory constraints on dissemination of information by ASIO officers – Knowledge of communication with journalist – Whether information ‘related, or appeared to relate’ to commission of indictable offence – R v Blackledge [1996] 1 Cr App R 326 considered – Australian Security Intelligence Organisation Act 1979 (Cth), s 17(1), 18(2), (3)(a).
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr J Kennan SC with Mr M J Croucher | James Dowsley & Associates |
| For the Commonwealth For the Director-General of Security | Mr I D Hill QC Mr H Burmester QC | Commonwealth Director of Public Prosecutions Australian Government Solicitor |
MAXWELL ACJ,
BUCHANAN JA,
VINCENT JA:
On 26 February 2006, the appellant (‘T’) was convicted by a Supreme Court jury on one count of intentionally receiving funds from a terrorist organisation[1] and one count of possessing a falsified Australian passport.[2] He was acquitted on two further counts of intentionally providing resources to a terrorist organisation.[3]
[1]Para 102.6(1) of the Criminal Code Act 1995 (Cth).
[2]Para 9A(1)(e) of the Passports Act 1938 (Cth).
[3] These charges were brought under paragraph 102.7(1) of the Criminal Code Act 1995 (Cth).
Essential 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 in Pakistan on 8 March 2003 (‘the AFP interview’). T sought leave to appeal against his conviction on the ground (amongst others) that the trial judge ought not to have admitted that evidence.
On 18 August 2006, this Court upheld that ground of appeal and ordered that T’s appeal should be allowed and the convictions quashed.[4] On 20 December 2006, the Court directed that T be retried on the two counts of which he was originally convicted. The Court upheld a submission by counsel for the Director of Public Prosecutions that certain statements made by T in a media interview, broadcast after his trial had finished, were capable of supporting a conviction on both counts.
[4]R v Thomas (2006) 14 VR 475.
By notice of motion, T now seeks to have the Court rescind the order for a retrial and, in its place, direct that there be verdicts of acquittal on both counts. The essential ground of the application is that the order for a retrial was based on a misapprehension of the relevant facts. In order that the nature of the complaint be fully understood, it is necessary to provide some background. The first step is to restate our reasons for ordering the retrial.
The reasons for the retrial order[5]
[5]Paragraphs [5]-[8] reproduce the substance of paragraphs [8]-[14] of R v Thomas (No 3) (2006) 14 VR 512.
Under s 568(2) of the Crimes Act 1958, the Court of Appeal, having allowed an appeal against conviction, is obliged to quash the conviction and must
either direct a judgment and verdict of acquittal to be entered or direct a new trial to be had.
Which of those two courses is to be adopted in any given case is a matter for the discretion of the court. The subsection provides no guidance as to the considerations which should govern the exercise of the discretion.
In DPP (Nauru) v Fowler,[6] the High Court (Gibbs CJ, Murphy, Wilson, Deane and Dawson JJ) identified the relevant considerations. Fowler establishes a two-stage analysis.[7] At the first stage, the court considers whether the admissible evidence given at trial was sufficiently cogent to justify a conviction. If it was sufficiently cogent, the court proceeds to the second stage, and considers any circumstances that ‘might render it unjust to the accused to make him/her stand trial again.’[8] But if the admissible evidence given at trial was not sufficiently cogent to justify a conviction, an acquittal should be directed. As the Court said in Fowler –
[I]t would be wrong by making an order for a new trial to give the prosecution an opportunity to supplement a defective case.[9]
[6](1984) 154 CLR 627 (‘Fowler’).
[7]See, for example, R v Tadic [2003] VSCA 28; R v ALH (2003) 6 VR 276; R v Anderson (1991) 53 A Crim R 421; R v Liristis (2004) 146 A Crim R 547.
[8]Fowler (1984) 154 CLR 627, 630.
[9]Ibid 630.
It was common ground in R v Thomas (No 3) that the task which confronted the court should be approached in accordance with the Fowler analysis. The question for consideration was whether the present case was to be disposed of at the first stage or the second stage of the analysis. If Fowler was read literally, the language of the first stage was applicable. Once the AFP interview was held to have been inadmissible, the admissible evidence given at T’s trial was not sufficiently cogent to justify a conviction.
But the formulation of the first stage by the Court in Fowler was addressed to – and only to – the typical case, that is, the case where the court of criminal appeal rules some part of the evidence at trial to have been inadmissible and concludes that the remaining admissible evidence could not support a conviction. This case was different. It had ‘one crucial, atypical, feature’, which we characterised in the following terms:
… [T]he evidence on which the prosecution would rely on a retrial of this appellant [was] evidence which was not known – and could not have been known – to the Crown at the time of the trial. Although the ABC interviews had taken place before the trial, this was a matter of which the Crown, inevitably, knew nothing. The same is true of the interview of which excerpts were contained in ‘The Age’ article. For practical purposes, the additional evidence did not exist at the date of the trial.[10]
We held that, in undertaking the first stage of the Fowler analysis, the appellate court was not limited to the admissible evidence in fact led at the trial but must take into account admissible evidence which was known to or knowable by the Crown at the time of trial. We concluded, however, that the admissible evidence of T’s admissions was ‘unknown [to] and unknowable by’ the Crown. By ‘unknowable’, we meant ‘not capable of being ascertained by the prosecution acting with reasonable diligence in the circumstances’.
[10]R v Thomas (No 3) (2006) 14 VR 512, 515 [13]-[14].
The present application challenges that conclusion. T contends that the evidence (of his admissions in the media interviews) was either known to or knowable by the Crown at the time of the trial.
Was the evidence ‘unknown and unknowable at the time of the trial’?
It is not in dispute that, at the time of the trial, the fact of the ABC interviews was unknown to those directly responsible for the conduct of the prosecution, that is, the relevant representatives of the Director of Public Prosecutions and the relevant officers of the Australian Federal Police (‘AFP’). From as early as April 2005, however, an officer of the Australian Security Intelligence Organisation (‘ASIO’) was aware that an ABC TV journalist was attempting to interview T with a view to preparing a story for the national current affairs program ‘Four Corners’. Then and subsequently, ASIO became aware of a number of conversations between T and the journalist.
The essential submission for T on this application was that because ASIO had in its possession, before the commencement of T’s trial, information about the (proposed) ABC interview, the statements made by T in the interview could not be treated as ‘fresh evidence’. This was so, it was argued, because what was known to ASIO at that time was either known to AFP/DPP or was capable of being ascertained – and, hence, was ‘knowable’ – by AFP/DPP.
In our view, each of those contentions should be rejected. Before we state our reasons for that conclusion, however, it is necessary to be more precise about the state of ASIO’s knowledge of relevant matters in the period between April 2005 and 16 February 2006, when T’s trial commenced.
What ASIO knew
Under s 17(1) of the Australian Security Intelligence Organisation Act 1979 (Cth) (‘ASIO Act’) ASIO’s relevant functions are:
(a)to obtain, correlate and evaluate intelligence relevant to security;
(b)for purposes relevant to security and not otherwise, to communicate any such intelligence to such persons, and in such manner, as are appropriate to those purposes …
The term ‘security’ is defined in s 4 of the ASIO Act to mean
(a)the protection of, and of the people of, the Commonwealth and the several States and Territories from:
(i)espionage;
(ii)sabotage;
(ii)politically motivated violence;
(iv)promotion of communal violence;
(v)attacks on Australia’s defence system; or
(vi)acts of foreign interference;
whether directed from, or committed within, Australia or not; and
(b)the carrying out of Australia’s responsibilities to any foreign country in relation to a matter mentioned in any of the subparagraphs of paragraph (a).
According to an affidavit filed on behalf of the Director-General of Security (who was granted leave to intervene in this application), ASIO’s core function is
the sourcing, collection and analysis of information relevant to security. It carries out that function by obtaining information from a variety of sources including, but not limited to, open source information, access to material held by other Australian Government agencies, interviews with members of the community and telephone intercept and other technical operations conducted under warrant.
ASIO’s concern is with information that is “relevant to security”. In endeavouring to obtain information of that kind, ASIO inevitably also obtains a large amount of information not relevant to security. A significant task which confronts ASIO on an ongoing basis is to sort through the information it receives in order to determine what is relevant to security, and what is not.
The same affidavit provided the following description of ASIO’s method of collecting and assessing information:
19. Consistent with the above, in any particular ASIO investigation or operation a large amount of information will ordinarily be collected through the use of whichever of ASIO’s sources and capabilities are identified as most relevant at the first step of the intelligence cycle. It may be, for example, that listening devices or telephone intercepts may be employed. If such techniques are used, it is usually the case that only a small subset of the information collected through those techniques is relevant to security. That follows because such a device or intercept records information that relates solely to the daily or family life of the subject of the investigation. That information is sometimes of a very personal or private nature. For that reason, it is important it is not processed further unless it is strictly necessary for purposes relating to security.
20. Indeed, even when raw information is found to be relevant to security and is incorporated into an intelligence report, such a report is not automatically available to everyone within ASIO, let alone to persons or organisations outside ASIO. On the contrary, intelligence reports, like raw information, are accessible only by those with a “need to know”. While the group of persons with access to ASIO intelligence reports is wider than the group with access to any particular raw information, the group is still limited to officers with a “need to know”.
21. Whether any particular information captured by ASIO is processed into intelligence, and thereby integrated into ASIO’s holdings and made potentially available for dissemination, depends upon the judgment made by the officer or [a] small number of officers within ASIO who have access to the raw information after it is acquired.
…
24. Only a small subset of information received by ASIO, being the information relevant to security, becomes “intelligence” by being processed into an intelligence report.
25. The balance of the information, ordinarily being the large majority of the information ASIO collects during an investigation, is set aside until it is destroyed at the conclusion of the investigation (subject to compliance with the Archives Act). Until such time as it is destroyed, the raw information set aside in this way is not stored by any uniform method, and is not readily retrievable or searchable. Indeed, raw information that has not resulted in the generation of an intelligence report can be accessed only if there is a specific reason to attempt to locate a specified piece of information. It is impracticable to attempt to access such information for any other reason, because if information has not resulted in the generation of an intelligence report then in the absence of a specific pointer to the relevant information it is often only by reviewing the raw material in real time that it is possible to discover the content of the raw information which has been set aside.
26. Accordingly, once raw information is not assessed to be relevant to security, in practical terms that information is ordinarily known only to the individual officer or officers who received the information or who reviewed it for the purpose of making a judgment about whether it was relevant to security. The information cannot be located by any formal search process, and there may be no record the information was ever held. Further, the “need to know” principle and the importance of protecting individual privacy mean the existence of raw information that is not relevant to security will not be disseminated within ASIO beyond, at most, a small group of officers.
Counsel for the Director-General also drew attention to what was said in 1984 by the Royal Commission on Australia’s Security and Intelligence Agencies, as follows:
8.73It is not a function of ASIO to collect or communicate any intelligence other than that which is relevant to security. Thus it cannot employ an agent to collect “non-security” intelligence or to seek this intelligence from a contact …
8.74It is obvious that notwithstanding this limitation on ASIO’s intelligence collection functions, it will, as an incident to its collection of security intelligence, collect much information which is not relevant to security. Thus an agent, reporting to his case officers, will often report on a great many matters which are not of security relevance; and possibly the greater part of intercepted telephone conversations have no bearing on security. This receipt of irrelevant information by ASIO is unavoidable.
In April 2005, a case officer within ASIO became aware that an ABC journalist was attempting to interview T with a view to preparing a story for Four Corners. The case officer assessed that these facts were not relevant to security. He therefore did not record this information in an intelligence report.
(In 2007, the ABC journalist was subpoenaed by T’s representatives to give evidence at a pre-trial hearing. Under examination she described the events which led up to the broadcast of the interview in February 2006). Later in April 2005, the ABC journalist filmed an interview with T. This took place in Melbourne at a private home. That location was chosen deliberately in order to avoid the surveillance which T suspected was in place.
The ABC journalist contacted T by telephone approximately 10-12 times before the interview, using his home or mobile telephone number. The telephone conversations were generally short, and concerned practical arrangements. They did not involve any discussion of substance. The journalist was aware of the possibility of surveillance by ASIO and she was honouring an agreement with T to keep the interviews secret until after the trial.
In early October 2005, the ABC journalist filmed a further interview with T. This time, the interview took place in a hotel room. As previously, the location was chosen in order to avoid surveillance. The journalist spoke with T on the telephone approximately 8-10 times in the period leading up to the October interview.
On about 30 January 2006, the journalist filmed a final short interview with T at his home. She spoke with T on the telephone approximately six times between the October interview and January 2006.
On 8 February 2006, an intelligence report was prepared by a case officer within ASIO and distributed to some other officers within ASIO. It is the only intelligence report brought into existence in ASIO which made any reference to contact between the journalist (or any other journalist) and T. The report recorded that the journalist had spoken to T about a particular person who, the report said, was a person ‘of security interest’. It was significant, according to counsel for T, that this same person had been mentioned by T during the interviews in Pakistan. The report made no mention of T having participated in an interview with Four Corners, nor did it contain any indication that he had made, or might have made, admissions about matters relevant to the charges on which he was about to stand trial. (It should be noted that this report came into existence only eight days before the trial was due to commence.)
Attributing ASIO’s knowledge to AFP and DPP
Accepting that the evidence of T’s admissions was not in fact known to AFP/DPP until after the interview was broadcast, counsel for T relied on the concept of deemed – or imputed - knowledge. The submission was that, because the AFP and ASIO were ‘working as a team’ in relation to the prosecution of T, ASIO’s knowledge of the material in question could and should be imputed to the AFP and to the DPP.
In view of ‘the role of ASIO in this particular prosecution’, counsel submitted, it was
unthinkable that the AFP and/or DPP could hide behind some sort of cloak of divisibility among the agencies concerned to defeat the applicant’s point. Were that so, the administration of justice would descend to the untenable position that ASIO could “sit on” information it discovered prior to trial, deliberately refrain from passing it on to the AFP or the DPP, see how the subsequent appeal went and then, if necessary, trot out the “new” information in furtherance of the prosecution on the question whether to direct an acquittal or a retrial.
Reliance was placed on what was said by Smith ACJ in R v Lucas. In that case, a person convicted of culpable driving challenged his conviction successfully on the ground that the prosecution had been conducted unfairly, by reason of the failure of the prosecution to call a particular witness. Smith ACJ said:
For the purpose of establishing such an allegation of unfairness it is not necessary for the applicant to be able to point to the conduct of an identified person or persons concerned in the prosecution as having been blameworthy. It is sufficient for him to show that the totality of the acts of those concerned on behalf of the Crown in the preparation and conduct of the prosecution has operated unfairly against him. [11]
Counsel sought to apply this proposition to the present case, by analogy, to establish that T did not need to ‘point to any particular person or agency as having the relevant knowledge or capacity to know at the relevant time’.
[11][1973] VR 693, 696.
The submissions for T also relied on the decision of the English Court of Appeal (Criminal Division) in R v Blackledge.[12] The appellants in that case had been convicted of conspiracy to export prohibited goods to Iraq without a licence. Their appeal succeeded on the ground that they had been denied access – before their trial – to government documents which lent weight to their contention that the relevant government authorities had ‘turned a blind eye to what they were doing’.
[12][1996] 1 Cr App R 326 (‘Blackledge’).
At the time of the trial, the only documents available to the prosecution, and hence to the defence, came from the Department of Trade and Industry. On the appeal, however, the court had before it documents from the Ministry of Defence, the Foreign and Commonwealth Office and the security services. At the relevant time, an inter-departmental committee had been dealing with the issue of export licences and those other departments held information about the defendants’ activities. The Court of Appeal concluded that the failure to disclose those other documents to the defence amounted to a material irregularity.
In reaching this conclusion we consider that the documents in the possession of one or other Government Department involved in the inter-Departmental consideration of [exporting] licences are to be regarded for the purposes of this case as in the possession of the Crown as an indivisible entity.[13]
This proposition was not further elaborated.
[13]Ibid 337.
In our view, nothing said by the Court of Appeal in Blackledge has application to the present case. There are three reasons for this. First, the court was there concerned with the well-established obligation of the prosecution to disclose exculpatory material to the defence.[14] As the House of Lords stated in R v H:[15]
Fairness ordinarily requires that any material held by the prosecution which weakens its case or strengthens that of the defendant, if not relied on as part of its formal case against the defendant, should be disclosed to the defence. Bitter experience has shown that miscarriages of justice may occur where such material is withheld from disclosure. The golden rule is that full disclosure of such material should be made.[16]
[14]See M Hinton, ‘Unused Material and the Prosecutor’s Duty of Disclosure’ (2001) 25 Crim LJ 121.
[15][2004] 2 AC 134, 147 [14].
[16]See, for example, Grey v The Queen (2001) 75 ALJR 1708; Mallard v The Queen (2005) 224 CLR 125, 133 [17] (Gummow, Hayne, Callinan and Heydon JJ), 155 [81] (Kirby J).
In Blackledge, the informant in the prosecution was a government department (the Department of Trade and Industry). The prosecution brief, it appears, contained only documents from that Department. But the relevant law enforcement activity – of ensuring that exporters held export licences as required – was the joint responsibility of the inter-departmental committee, all the members of which had dealt with the defendants or had knowledge of their activities. It was therefore unfair for the defendants to be denied access to exculpatory information in the possession of those departments.
The present application is not concerned with any alleged failure on the part of the Director to disclose exculpatory material to T. Quite the contrary. The argument for T is that ASIO came into possession of inculpatory material relevant to the prosecution, and the prosecuting authorities should be deemed to have had that material available to them. The proposition that ASIO should be viewed as an active participant in a prosecution – seeking out and supplying incriminating evidence – raises fairness issues of a quite different kind. As was pointed out in argument, it is a most surprising submission coming from defence counsel.
Secondly, this was not – could not have been – a joint law enforcement operation involving ASIO. That contention is without factual or legal foundation, as we shall explain. Thirdly, there was no suggestion in Blackledge that there was any constraint on the passage of information between the three government departments identified. The court in Blackledge was not required to consider the issue which arises squarely in this case, namely, the existence of stringent statutory constraints on an agency’s dissemination of information. That is a question to which we will also return. We deal first with what the evidence shows about ASIO’s links to the prosecution of T.
Did ASIO have a role in the prosecution?
The events leading up to the charging of T are not in dispute.[17] He was apprehended by Pakistani immigration officials at Karachi Airport, Pakistan, on 4 January 2003. He was detained by Pakistani authorities. While in detention in Pakistan, T participated in six interviews. Each interview was conducted by two ASIO officers and two AFP agents. These interviews (‘the joint interviews’) were conducted primarily, if not entirely, for intelligence gathering purposes.[18]
[17]R v Thomas (2006) 14 VR 475.
[18]Ibid 488 [39].
On 8 March 2003, T participated in the AFP interview. No ASIO officers were present. As we said in R v Thomas,[19] the AFP interview was directed at the need to obtain evidence of the admissions which T had made in the joint interviews, in a form and by a process which would be acceptable in an Australian court. At the end of the joint interviews, there was no evidentiary foundation for any charge to be laid against T. That would only be possible if he voluntarily made the necessary admissions, under the requisite interview conditions.
[19]R v Thomas (2006) 14 VR 475.
On 6 June 2003, T was released from detention in Pakistan and returned to Australia. On 18 November 2004, he was arrested by the AFP and charged with the offences on which he subsequently stood trial. The criminal investigation was conducted by a joint counter-terrorism team, comprising representatives of the AFP and State police. The team did not include any ASIO representative.
The brief of evidence provided to the DPP did not contain any information provided by ASIO. Nor did it contain any reference to the joint interviews. The Crown case was based substantially on the admissions made by T in the AFP interview. It was, of course, the inadmissibility of the AFP interview which founded T’s successful appeal against conviction.
On the present application it was submitted for T that ASIO was ‘associated with’ the prosecution of T from the beginning. But the events which we have described simply do not bear this out. The presence of both AFP and ASIO officers during the six joint interviews in Pakistan reflected the existence of concurrent, but separate, interests. As we said in R v Thomas,[20] the product of the joint interviews was ‘of obvious interest’ to Australian intelligence. Equally, that product was of obvious interest to the AFP, because what T said appeared to disclose the commission of offences against Australian criminal law. Hence the need for a formal record of interview, for which the AFP alone was responsible.
[20]Ibid 507 [112].
Counsel for T drew attention to records which showed co-ordination between AFP and ASIO in the period immediately following the AFP interview. This apparently included ASIO providing to AFP information to assist AFP in locating other individuals who might be relevant to AFP’s investigation and prosecution of T. These contacts reflect the existence of the concurrent, but separate, interests to which we have referred.
Nor did ASIO at any later time become part of a joint investigation/ prosecution. Senior counsel for T relied on dealings in July and August 2005 between an AFP agent and three ASIO officers. These meetings were held for the preparation of witness statements dealing with the conduct of the joint interviews in Pakistan, and the circumstances of T’s detention there. Crucially, however, the need for these witness statements was occasioned by the actions of the defence, not the prosecution. Each of the three ASIO officers (having participated in the joint interviews) was subpoenaed by the defence to give evidence on the voir dire to determine the admissibility of the AFP interview. In the event, one ASIO officer gave evidence on the voir dire, while the statements of the two other officers were tendered without cross-examination. Nothing contained in the witness statements formed part of the prosecution case against T.
Senior counsel for T also relied on statements made by ASIO in its 2005-06 annual report. He relied in particular on references to: the charges against T; the joint operation by ASIO and police in Sydney and Melbourne in November 2005 and March 2006; prosecutions, including that of T, having drawn heavily on ASIO’s resources; ASIO’s having provided ‘support for prosecutions’; and ‘joint operations with Australian law enforcement agencies’ being part of ASIO’s strategy. As general statements, however, they are of no assistance in this application.
Reliance was also placed on the following passage from the report:
ASIO has worked closely with Federal, State and Territory police over many years. During 2005-2006, we continued to refine the model for working together.
The working model we have with police recognises ASIO’s lead role in conducting broad-based intelligence investigations aimed at identifying threats to security. Should investigations identify significant criminality (in terms of terrorism offences), the model calls for early police involvement in evidence collection as a parallel to ASIO’s intelligence collection activities. This structure aims to maximise the opportunity for police agencies to collect evidence.
ASIO-police working relationships generated significant resource savings and at times increased the type and amount of resources available for investigations.[21]
With respect, this passage is of no assistance to T either. On the contrary, the reference to
early police involvement in evidence collection as a parallel to ASIO’s intelligence collection activities
describes precisely what occurred in the joint AFP-ASIO interviews in Pakistan. And, as the report clearly states, when that occurs the activities of ASIO and the AFP are conducted in parallel, not jointly. Given that the one is a security service and the other a police force, this is hardly surprising. Their respective functions are mutually exclusive. ASIO is authorised by its Act to co-operate with other Commonwealth agencies – but only ‘so far as necessary for, or conducive to, the performance of its [own] functions’ (s 19(1)).[22]
[21]Emphasis added.
[22]ASIO Act, s 19.
Nor is T’s argument advanced by the following passages from ASIO’s 2006-07 annual report, on which he also relied:
ASIO had a role in supporting the litigation process in connection with individuals who were facing terrorism-related charges through the provision of information, witnesses and other support. In 2006-07, ASIO had the greatest litigation related workload it had ever experienced, comprising security related criminal proceedings (including terrorism prosecutions), judicial and administrative reviews of security assessments and other civil proceedings.
…
In response to requests for evidence ASIO provided information to the Commonwealth Director of Public Prosecutions and the AFP for evidentiary use in terrorism prosecutions … In all terrorism prosecutions, ASIO has worked closely with Commonwealth prosecuting agencies and State law enforcement agencies.
In the present case, there is no suggestion that the DPP/AFP made any ‘request for evidence’ of ASIO. (Indeed, T relies on their failure to make any such requests.) Quite simply, the ‘parallel’ involvement of the AFP with ASIO from the outset of the joint interviews with T meant that no such request was necessary. Everything which ASIO learned from T about his activities in Pakistan and Afghanistan was learned, simultaneously, by the AFP. The purpose of the AFP interview, as we have said, was to convert the admissions already made into a form which would be admissible against T in a trial.
As discussed below, s 18(3)(a) of the ASIO Act contemplates that, in the course of its intelligence-gathering activities, ASIO may come upon information which discloses, or appears to disclose, the commission of a criminal offence. In that event, ASIO is authorised to provide the information to law enforcement authorities. The existence of that power would also make it proper for criminal investigators to make a request of ASIO as to whether it had in its possession information of the requisite kind. Once again, however, the circumstances of this particular case made it unnecessary either for ASIO to communicate information to the AFP of its own motion or for the AFP to make a request of ASIO for such information. As we have said, the AFP had all the necessary information from the outset, and had conducted a record of interview on which the intended prosecution was to be based.
In short, this was not a joint prosecution. Nor could it have been. ASIO has no power to act as a law enforcement agency[23] and there is nothing in the material before the Court to suggest that it purported to do so in relation to T. Although this is not the conclusion for which T contended, it should reassure the Australian community about ASIO’s adherence to the limits of its statutory charter.
[23]See Australian Crime Commission v AA Pty Ltd (2006) 49 FCR 540, 547 [32].
ASIO’s ability to communicate
Even if (contrary to our view) the prosecution of T were properly to be viewed as a joint AFP – ASIO operation, we would still have concluded that the Blackledge proposition – concerning the knowledge of an ‘indivisible’ Crown – was inapplicable. ASIO is a statutory authority established by Parliament. It is legally and functionally separate from the departments of the executive Government. Parliament has authorised ASIO to gather intelligence, including by intrusive means, in the interests of national security but, at the same time, has imposed very strict constraints on ASIO’s ability to communicate the information which it collects. That being so, there is simply no room, in our view, for any notional ‘attribution’ of ASIO’s knowledge to any other agency, department or public official. The position of an inter-departmental committee the members of which are all part of the executive government is quite different.
Under s 18(2) of the ASIO Act it is an offence, punishable by two years’ imprisonment, for an ASIO officer to make an unauthorised communication of information acquired by ASIO, except ‘for purposes relevant to security’ (s 17(1)(b)). The relevant law enforcement exception is created by s 18(3)(a), which provides:
[W]here the information relates, or appears to relate, to the commission, or intended commission, of an indictable offence against the law of the Commonwealth or of a State or Territory –
(i)the information may be communicated to an officer of the Police Force of a State or Territory; or
(ii)to a member or special member of the Australian Federal Police; or
(iii)to the Chief Executive Officer of the Australian Crime Commission or a member of the staff of the ACC.
This provision is central to T’s alternative argument, namely, that the fact of the ABC interview and the admissions made by T in it was ‘knowable’ by the AFP before the start of T’s trial.
Was the information ‘knowable’?
As we have said, ASIO is not a law enforcement agency. It does not carry out criminal investigations. The power conferred by s18(3)(a) is an incidental power, a power exercisable incidentally to ASIO’s discharge of its intelligence-gathering functions. (It is expressed to be a power to communicate ‘information that has come into the possession of [ASIO] in the course of performing its functions under s 17’.) The collection and evaluation of intelligence is, necessarily, carried out by persons trained in the assessment of issues relevant to security, not by police investigators. The power conferred by s 18(3)(a) must be seen in that context.
Senior counsel for T argued that, once it was known to ASIO that T had given two lengthy interviews to a TV journalist for a full-length current affairs program, there was a reasonable inference – which ASIO should have drawn – that the interview would have covered the activities of T which gave rise to the criminal charges. This inference, senior counsel submitted, was ‘neither far fetched nor fanciful’.[24] Counsel relied in particular on the fact that the person of security interest referred to in the intelligence report of 8 February 2006 was a person earlier identified by T in a statement which he prepared and provided to ASIO and the AFP following the third joint interview. (Counsel for the Director-General argued that, on the evidence, ASIO did not know that ‘two lengthy interviews’ had been given. For reasons which follow, we have found it unnecessary to resolve this factual dispute.)
[24]Cf Wyong Shire Council v Shirt (1980) 146 CLR 40.
Senior counsel for T accepted that ASIO itself had no power to investigate further what T might have said to the ABC. He maintained, however, that ASIO could, and should, have notified the AFP of the fact of the ABC interview. He argued that the communication to the AFP should have been along the following lines:
You might like to go and talk to Four Corners and find out what he has been saying to them. He has given them two interviews, and one is to be shown after the trial.
The primary submission was that a communication of this kind would have been permitted by s 18(3)(a). In the alternative, senior counsel submitted that the Court should proceed on the basis that ASIO was not constrained by the legal limits on its powers to communicate. That approach was justified, he submitted, because of what was said to be ‘the free flow of information’ which had taken place between ASIO and the AFP in the course of the investigation and prosecution of T.
We have already rejected the proposition that there was any joint prosecution. Nor is there any evidence of any ‘free flow of information’. In any case, we reject out of hand the rather surprising submission that ASIO should be regarded – for the purposes of this case – as having been unconstrained by its own secrecy provisions.
In our view, there is no reasonable argument that ASIO was authorised by s 18(3)(a) to communicate to the AFP the information in its possession about T’s contact with the ABC journalist. The fact that T was speaking to a journalist with a view to being interviewed was itself unremarkable. As counsel for the Director-General argued before the trial judge, it had been ‘apparent since the moment of [T’s] arrest that there was a high level of media interest in him.’ Critically for present purposes, the fact that T was to be – or had been – interviewed was not information which ‘related, or appeared to relate’ to the commission of an indictable offence. On the contrary, this activity was, on the face of it, entirely lawful. As Vincent JA pointed out in argument, the corollary of the argument for T was that whenever ASIO became aware of any lengthy conversation between T and any person, whether a journalist or not, ASIO should reasonably have inferred that T was likely to be speaking about his activities abroad, in a manner likely to bear relevantly on the charges against him, and should have tipped off the AFP accordingly.
The proposition is offensive to fundamental notions of privacy and freedom of speech, and ignores the express limitations on ASIO’s activities. Those limitations are clearly defined by the ASIO Act, for self-evident public interest reasons. We reject completely the notion that ASIO could be regarded as having authority to advise law enforcement authorities that a person, otherwise of security interest to ASIO, was having apparently lawful conversations with a journalist. The position would, of course, be wholly different if ASIO was aware of conversations which did relate to the commission of a crime – for example, the planning of a terrorist bombing. The present case could hardly have been further removed from that scenario.
If in the course of its continuing surveillance of T, ASIO had come upon information which was itself apparently relevant to the charges laid against T, ASIO might have been expected to communicate it to the AFP under s 18(3)(a). Unsurprisingly, the relevant AFP officer confirmed in evidence that any such information would have been of interest. But we reject the proposition that the AFP should have been making regular enquiries of ASIO in the period between the charging of T and the trial. The events the subject of the charge had occurred years earlier, and in foreign countries, and there was no reason for the AFP to expect that anything said or done by T following his arrest and charging in late 2004 would bear relevantly upon the proof of those charges. In particular, the AFP had no reason to expect that T would be making frank admissions to a journalist with a view to their being broadcast after the trial.
As senior counsel for the Director of Public Prosecutions correctly pointed out, the only ASIO intelligence report of relevance came into existence a matter of days before the trial. The proposition that the AFP should, on the eve of the trial, have been pressing ASIO for additional evidence against T contradicts the fundamental principle of a fair trial which requires disclosure, well in advance of the trial, of all of the evidence on which the prosecution will rely. Again unsurprisingly, the record shows that the AFP’s active evidence-gathering phase ended with T’s arrest in November 2004.
For these reasons, in our view, the application should be refused. There was no misapprehension of the facts when the order for retrial was made.
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