DPP (Cth) v Thomas

Supreme Court of Victoria|2006-04-07|Before: CUMMINS J

Criminal law and procedure - evidence - admissibility of police interview - terrorism offences - Commonwealth Criminal Code s.102.6(1) and s.102.7(1) - Passports Act 1938 s.9A(1)(e) - voluntariness - no access to lawyer - public policy - Crimes Act (Commonwealth) 1914 Part 1C and s.23G(1)(b).

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1 On 7 November 2005 in Ruling No. 3 I ruled that the interview of the accused conducted in Pakistan on 8 March 2003 by Australian Federal Police Agents Williams and Lancaster was admissible in evidence before the jury. I so ruled because I found that the answers of the accused were voluntary as contemplated by MacPherson v R[1], that the actions and questions of the interviewing officers were proper and lawful, and that although the accused should have had the facility of communication with a legal practitioner made available to him as required by s.23G(1)(b) Crimes Act 1914 (Commonwealth), in the spatial and temporal circumstances then obtaining it was not unfair to admit the interview in evidence. I stated that I shall publish my reasons during the course of the trial. For ease of access, I reproduce below Ruling No. 3 made on 7 November 2005:

"RULING NO 3

HIS HONOUR: Since last Friday I have re-read the transcript and relevant documents and re-heard the audio recordings of the evidence led or tendered on the voir dire in the light of the oral and written submissions of counsel for the prosecution and for the defence. I had done so previously but did it again after the conclusion of all submissions so that I could consider the whole of the evidentiary material with the benefit of those submissions. I commend all prosecution and defence counsel and their learned instructors for the quality and comprehensiveness of those submissions.

I rule that the interview of the accused conducted in Pakistan on 8 March 2003 by Federal Agents Williams and Lancaster between 4.40 pm and 6.10 pm, consisting of 578 questions and answers and being exhibit OO on the voir dire, is admissible in evidence at the jury trial of the accused. I so rule for the following reasons.

First, I find that the answers given by the accused in that interview were voluntary as contemplated by MacPherson v R. That is, were made by the accused in the exercise of a free choice to speak or be silent. I so find having considered all the concomitant and all of the antecedent circumstances in which the accused found or had found himself after (in the words of Brennan J, as then he was, in Collins and others v R[2]) 'careful assessment of the effect of the actual circumstances of (the) case upon the will of the particular accused'. Having given attention to the content, tone, timing and circumstances of the accused's answers as revealed by the cassette tapes, exhibit OO, I am affirmatively satisfied that the answers of the accused were made voluntarily.

Next, I consider that the actions and questions of the interviewing officers Federal Agents Williams and Lancaster, were proper and lawful. The officers did not, again in the words of Gibbs CJ and Wilson J in MacPherson v R at 519 hold out inducement to or exercise duress, intimidation, importunity or pressure upon the accused. The actions and questions of the officers were proper and fair. In particular, the officers clearly informed the accused of the different character and function of the interview from the six previous interviews conducted by A.S.I.O. officers, being Exhibit C on the voir dire. In my view the accused fully understood the difference. The A.F.P. officers clearly informed the accused of his right to decline to answer questions. In my view the accused, at all times throughout the interview, fully understood that right. The accused answered the questions because he considered there was a potential advantage to him in doing so. The content, tone and timing of the accused's answers as revealed by exhibit OO affirmatively demonstrate that exercise of free will by the accused. I do not consider that the free will of the accused, as contemplated by MacPherson v R, above cited, in the interview was trammelled or derogated from by the six previous interviews of him by the A.S.I.O. officers, exhibit C, or by any antecedent conduct.

Next, I consider the provisions of Part IC Crimes Act (Commonwealth) 1914 applied to the interview on 8 March 2003. That is because the accused was a protected suspect within the meaning of section 23B(2) of the Act. The terms of section 23B(2)(a), (b) and (c)(i) were fulfilled. Thus, ordinarily, the accused should, pursuant to section 23G(1)(b) of the Act, have been informed by the investigating officers that he may communicate with or attempt to communicate with a legal practitioner of his choice and arrange or attempt to arrange for a legal practitioner to be present during the questioning, and the questioning should have been deferred for a reasonable time to allow that communication or presence to occur. The officers, rather than inform the accused of that dual right, informed him that 'this right will not be available to you today' (question 29). Normally, failure to avail an interviewee of that right would be fatal to the admission of a subsequent interview. That is because the right is an important right in the system of justice. However, that requirement is not absolute. Here, the officers had ascertained that that provision would not be permitted in Pakistan. They were faced with the choice of conducting an interview or postponing it for an indefinite period to an indefinite place. Had the officers sought to utilise that situation for a collateral purpose, or as a pretext, or opportunistically to defeat or deflect the requirements of part IC of the Act I would have had no hesitation in ruling the interview inadmissible. Further, I would unhesitatingly exclude the interview if I considered it unfair to admit it. However, I consider the officers acted reasonably, honestly and fairly in all the circumstances.

Further, I do not consider it was unfair to the accused to conduct the interview in the absence of legal recourse as defined by section 23G(2). Doubtless the accused would have availed himself of that legal recourse were it proffered. Presumably the legal practitioner would have advised the accused appropriately. Whether, then, the accused would have answered questions or declined to answer questions is unknown and certainly I do not speculate in that regard.

However, the interviewing officers in my view acted properly. The accused acted voluntarily. The effective choice was between no interview in Pakistan or an interview there and then and that situation was not contrived or engineered by the officers. In all the circumstances I consider it is proper fair and just to admit the interview, exhibit OO, into evidence.

I so rule.

I would wish to review the considerable relevant evidentiary material in detail which I shall do in writing and publish during the course of the trial."

2 On 31 January 2006, in Ruling No. 6 I made rulings as to admissibility of discrete parts of the interview of 8 March 2003. The criteria for admissibility of those parts were stated in paragraphs 3 and 4 of that Ruling.

3 The accused ultimately was arraigned before the jury on 15 February 2006. He pleaded not guilty to each of the four counts on the presentment: count 1, that between November 2002 and January 2003 at Karachi in Pakistan and elsewhere the accused, contrary to s.102.6(1) Criminal Code (Commonwealth), intentionally received funds from a terrorist organisation, namely Al Qa'ida or another terrorist organisation associated with Khaled Bin Attash and/or Usama Bin Laden knowing that the organisation was a terrorist organisation; count 2, that between 5 July 2002 and 4 January 2003 at Karachi in Pakistan and elsewhere the accused, contrary to s.102.7(1) Criminal Code (Commonwealth), intentionally provided resources to that terrorist organisation that would help it engage in preparing or planning a terrorist act; count 3, that between 1 November 2002 and 4 January 2003 at Karachi in Pakistan and elsewhere the accused, contrary to s.102.7(1) Criminal Code (Commonwealth), intentionally provided resources to that terrorist organisation that would help it engage in preparing or planning a terrorist act; and count 4, that on or about 4 January 2003 at Karachi in Pakistan and elsewhere the accused had in his possession an Australian passport that had been falsified. The resource which in Counts 2 and 3 is alleged to have been provided was Mr Thomas himself. The essential difference, apart from the dates, between Counts 2 and 3 is that Count 2 relates to the preparing for a terrorist act overseas, while Count 3 relates to the preparing for a terrorist act in Australia.

4 On 26 February 2006 the accused was found guilty by the jury on counts 1 and 4, and not guilty on counts 2 and 3. Last Friday, 31 March 2006 I sentenced Mr Thomas. I now publish my reasons for Ruling No. 3.

5 The essential background chronology is as follows. The accused left Australia on 23 March 2001 and flew to Pakistan. Then by land he crossed the border into Afghanistan. He then undertook paramilitary training at the Al Farooq training camp in Afghanistan, a training camp of Al Qa'ida, for three months. In July 2001 the accused went to Kabul. He remained in Afghanistan for a period and then went to Pakistan. He there stayed in a series of safe houses associated with Al Qa'ida. He there over time had various discussions with operatives of Al Qa'ida. Shortly before the end of 2002, in one of the safe houses he had a discussion with Khaled Bin Attash in which the provision of US $3,500 and an airline ticket was traversed. The accused then received the money and the ticket. He arranged through another Al Qa'ida operative for his Australian passport to be falsified, to make it appear he had been in Pakistan for a very short period and not for an extended period. Then on 4 January 2003 the accused, with the Al Qa'ida-provided cash and airline ticket and with the falsified passport, attended at Karachi airport intending to fly to Australia. He was there arrested.

6 The accused remained in Pakistani custody from 4 January 2003 until 5 June 2003 when he flew from Karachi to Australia. Thereafter he resided at liberty with his family in Victoria until his arrest on 18 November 2004. He was then charged with the four offences which ultimately constituted the presentment.

7 The accused was in Pakistani custody from 4 January 2003 until his departure by deportation from Pakistan on 4 June 2003. He arrived back in Australia on 5 June 2003. During the 5 months he received 5 consular visits from Mr Alastar Adams, then Consul at the Australian High Commission in Islamabad. The first of those visits was on 22 January 2003; the second on 27 March, that is, after the 8 March 2003 A.F.P. interview. Mr Adams gave evidence before me. I was most impressed by his responsible and professional approach to his work. Mr Adams at his consular visit of 22 January 2003 noted that Mr Thomas "is in good health and claims to be receiving very good treatment".

8 While the accused was in Pakistani custody between 4 January 2003 and 4 June 2003 he was in the custody of the Inter Services Intelligence Directorate (ISID) of Pakistan and interrogated by personnel of ISID and by other persons whom I shall later specify. When Mr Thomas was moved from location to location, or brought in to interrogation, he was hooded and shackled (but not during interrogation). He was questioned on six occasions by personnel of the Australian Security Intelligence Organisation: on 25 January 2003, 27 January 2003, 28 January 2003, 29 January 2003, 24 February 2003 and 26 February 2003. The six A.S.I.O. interviews constituted Exhibit C on the voir dire. It was not proposed by the prosecution that any of the A.S.I.O. interviews be sought to be led as evidence before the jury. Then on 8 March 2003 the accused was interviewed by two officers of the A.F.P., which interview was recorded on audio tape which was Exhibit OO on the voir dire. It was proposed by the prosecution that the A.F.P. interview be tendered as evidence before the jury.

9 The A.F.P. interview was conducted by Federal Agents Williams and Lancaster in Pakistan on 8 March 2003 between 4.40 pm and 6.12 pm and was constituted by 578 questions and answers. It was recorded on audio tape. The accused at the time was in Pakistani custody.

10 For the accused, essentially it was submitted that the A.F.P. interview of 8 March 2003, Exhibit OO, was not voluntary; was conducted unlawfully in that the facility for legal advice was not provided for the accused; was unfair so as to found its exclusion; and should be excluded on the ground of public policy. As to both voluntariness and unfairness it was submitted on behalf of the accused that not only was the A.F.P. interview in itself not voluntary and was relevantly unfair, but that antecedent conduct towards the accused by Pakistani authorities and other persons, and the conduct and content of the six antecedent A.S.I.O. interviews, impacted upon the A.F.P. interview as to render it not voluntary, unfair and its receipt contrary to public policy. It was put that the accused since 4 January 2003 had been held in circumstances of threat and oppression by Pakistani and American personnel; that the six A.S.I.O. interviews were conducted in that context; that two A.F.P. officers were present at all six A.S.I.O. interviews and that the two A.F.P. interviewing officers were present at the fifth and sixth interviews; and that the A.F.P. interview of 8 March 2003 interview was poisoned by those antecedent and contextual matters.

11 I commence with the A.F.P. interview of 8 March 2003. On the voir dire the audio tapes were, as I have said, tendered as Exhibit OO. A transcript of that interview, while not itself being evidence as it was derivative, was as a matter of convenient administration appropriate for a voir dire (but not for trial) accepted by me as Exhibit PP. The interviewing officers were Federal Agents Williams and Lancaster of the Australian Federal Police.

12 Prior to giving Ruling No. 3 I had examined the interview in detail and had given careful attention to the sounds of the interview as revealed by Exhibit OO, including pauses, hesitation, emphasis and like matters. It is necessary to listen to the sounds of the interview Exhibit OO to obtain an understanding of the voluntariness or otherwise of the accused's answers and their character.

13 On the face (transcript) and the sounds of the interview the answers of the accused bear the stamp of voluntariness as to content and tone. That is so for the following reasons. In the analysis below I have segmented the interview under categorical headings. It is necessary to listen to the interview holistically and in its actual sequence to appreciate its development and the relationship of part to part.

14 First, as to the right to silence. As effective bookends, the following was stated at the beginning and at the end of the interview. At the beginning[3]:

"WILLIAMS:

Q3. Do you understand that although you are currently being detained by Pakistan authorities, you are not under arrest for any offence under Australian law?

A Now you've told me, I understand that .....

Q13. 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?

A Yes.

Q14. Can you explain in your own words?

A Ah, my own words?

Q15. Yeah.

A Um, 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.

Q16. But in clear terms it means that any answer you give now in this interview ---

A Could be used as evidence.

Q17. --- could be used in evidence in a court in a future court matter?

A Right.

Q18. And um, you've just got to be - we've got to give you that caution ---

A Yep.

Q19. --- so you fully understand?

A Your urging me to tell you everything.

Q20. I'm not urging you anything - it's your choice of whether you participate in this interview or not?

A Right.

Q21. But we're seekers of the truth?

A Yeah, okay.

Q22. But having said that, any questions we ask you, you're not obliged to answer?

A Okay.

LANCASTER:

Q23. 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.

A Okay."

Near the end, referring to the question of commitment of the accused to Usama Bin Laden:

"Q506. So you were committed - were you asked to?

A No you don't be asked.

Q507. You just do it?

A You've got to do these things, you've got to want to do these things. It's like this interview."

"LANCASTER:

Q574. I'm not going to ask you any questions. Um, have all the answers um, that you given during this interview been made of your own free will?

A Yes.

Q575. Has any threat, promise or inducement been held out to you to make the answers that you've given?

A Not a thing.

Q576. And do you agree that the time is now six ten pm?

A No.

Q577. Oh, what do you agree - what is the time?

A Well, it's six twelve.

Q578. Right, do you agree that the time is now six twelve pm?

A Yeah.

Sorry ... (indistinct) ... the interview is now concluded."

(I include answer 577 only on the question of the accused's alertness).

"LANCASTER:

Q70. ..... 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?

A Okay.

Q71. Um, and I can't - I can't do that to this time - um, without going through this process - is a ah, normal 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.

A All 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 ---

A Do you mind?

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

A Yeah yeah."

(There is then a 3 minute 19 second silence while the accused is privately praying).

"LANCASTER:

Q77. No that fine.

A I really appreciate that from an interviewees.

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 ---

A Yep.

......

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

A Okay ... (indistinct) ... Yes.

WILLIAMS:

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?

A Yes."

16 Third, as to the address of the accused to the interview:

"WILLIAMS:

Q54. Okay. Now, I want you to understand 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 your enquiries?

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

Q56. We will get into that ---

A I certainly - I certainly aint 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 - 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.

.....

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 ---

A Yep.

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

A I - I just - I'm just - I want the prosecution to understand that I'm in - I'm in there um, - I'm in there [sic] ah, bay. I've put myself right alongside with them."

"WILLIAMS:

(Sound of door opening) ...

Q565. All right, we've um, we've been told we have to stop the interview. We'll have to go through some proforma concluding questions. Is there anything further that you wish to tell me in relation to this matter?

A At least - I really tried to help and give you everything I can.

Q566. You understanding we do appreciate what you have um, have been open with us and the other things that you've done. Do you wish to make a handwritten statement in relation to this matter?

A Maybe.

Q567. Yep.

A Is that okay?

Q568. If you wish to - there's no requirement that you do um, but if you wish to, then you can.

A I think you - I think you know that I've really worked hard in - in trying to fill in this hole that I've made for myself."

18 I find that the provisions of Part IC Crimes Act 1914 (Commonwealth) applied to the A.F.P. interview of 8 March 2003. That is because the accused was a protected suspect within the meaning of section 23B(2) of the Act. The Act applied extraterritorially: s.3A. The terms of section 23B(2)(a), (b) and (c)(i) were fulfilled. Thus ordinarily the accused should, pursuant to section 23G(1)(b) of the Act, have been informed by the investigating officers that he may communicate with or attempt to communicate with a legal practitioner of his choice and arrange or attempt to arrange for a legal practitioner to be present during the questioning, and the questioning should have been deferred for a reasonable time to allow that communication to occur. The interviewing officers, rather than inform the accused of that dual right, informed him that "this right will not be available to you today" (question 29).

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[4], 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.

21 Had the interviewing officers sought to utilise the non-access to legal advice for a collateral purpose, or as a pretext, or opportunistically to defeat or deflect the requirements of Part IC of the Act I would have unhesitatingly ruled the interview inadmissible. The Court will not lend itself to defeating the law. However, I do not consider the officers so acted. They were aware that Mr R Stary was acting for the Thomas family. It would require little imagination to conclude that Mr Stary would have been retained by the accused Mr Thomas had connection been effected. But the hard fact was that in Pakistan legal access was not going to be permitted in interview.

22 Finally on the question of legal access, if I considered there were impropriety, or it was unfair, by reason of lack of legal access, to admit the interview I would exclude it. I do not so consider. The matter must be judged on the circumstances, objective and subjective, then and there obtaining, tested against abiding and powerful legal principle and the provisions of the legislation. The interviewing officers acted fairly and properly. The principle of exclusion in Bunning v Cross[5] does not here apply.[6] Nor is it unfair to receive the evidence.[7] The effective choice was between no interview in Pakistan or an interview there and then. That situation was not contrived or engineered by the interviewing officers. It would have been bad investigative practice to let the trail run cold. I observed both officers give evidence in front of me. They impressed me as honest and straight. Commander Lancaster was especially impressive. The accused acted voluntarily. He was intelligent. He was in a difficult position; but to dictate that he should not have had the opportunity to decide whether to proceed or not with the interview is judicial overreach.

23 In stating the above I proceed upon the premise, justified by Mr Thomas' comments in the early part of the A.F.P. interview, that he would have sought legal recourse had it been available and offered. I do not speculate as to what advice a lawyer might have given Mr Thomas; still less, what Mr Thomas then would have decided to do. Safely back in Melbourne in November 2004, when arrested in Werribee the accused on legal advice exercised his right to silence as he was fully and rightly entitled to do. That is no analogy with Pakistan in March 2003.

24 For those reasons I do not consider that the non-provision by interviewing officers of legal access to Mr Thomas in Pakistan on 8 March 2003 founds the exclusion of the A.F.P. interview of that date.

26 The A.S.I.O. interviews of the accused occurred as follows: the first on 25 January 2003 from 2030 hours to 26 January at 0200 hours; the second on 27 January from 2015 hours to 28 January at 0030 hours; the third on 28 January from 2005 hours to 29 January 2003 at 0015 hours; the fourth on 29 January from 2000 hours to 2230 hours; the fifth on 24 February from 2020 hours to 2230 hours; and the sixth and final interview was on 26 February 2003 between 2015 and 2230 hours. In the third interview the accused was asked to provide a handwritten document outlining his experiences in Afghanistan and Pakistan. In the fourth interview he provided the interviewing officers with a 13 page document setting out those experiences, tendered as Exhibit R on the voir dire. The six A.S.I.O. interviews were tendered as two CDs being exhibit C(c) on the voir dire; the transcript thereof (albeit derivative) was exhibit B(c). A.F.P. officer Williams was present at all the A.S.I.O. interviews. A.F.P. officer Briskey was present at the first four of those interviews. The A.F.P. officers asked occasional questions in those interviews.

27 The purpose of the A.S.I.O. interviews was the gathering of security intelligence. This was stated clearly at the outset of the first interview. That interview commences:

"Q ... Jack that the purpose of our visit is to talk to you about who what where when and why those sorts of questions. We're here purely to gather information.

JT Okay.

Q Intelligence for lead generation purposes so we can add to the picture that we have of various activities in Australia and people so we can then provide assessments to Government on the risk that various individuals or groups or issues might pose. You will find us - 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 ---

JT Yes.

Q Because as you would be well aware having been around for quite some time since September eleven and able to access news and so on that there's a very large worldwide investigation.

JT Yes.

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 legal people back in Canberra can then look at other information they hold and then we can determine whether you've been co-operative.

JT Okay.

Q Okay. Does that

JT Yes.

Q Jack, do you have any questions?

JT Perfectly clear.

Q Yes, yes. So we're not here today to build a case against you in Australia or anything like that, we're here simply to talk to you about your experiences, who you met, where you met, when you met, why you met and it's pretty clear, pretty clear you met some very interesting people in your travels.

JT Yes."

The bifurcation of purpose between the A.S.I.O. interviews - the gathering of security intelligence - and the A.F.P. interview - the gathering of legal evidence - was well understood by the accused. At the outset of the A.F.P. interview the officer stated (Q.4)

" ... the issues that we're - that we're investigating at the moment, um, is that you've committed um offences against the laws of Australia"

which offences were then specified to the accused. The accused said to the A.F.P. officers (Q.65)

"... 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 every way possible."

" ... I really like the secret side of things ..."

were eloquent both of his understanding and of his conduct.

28 The conduct of the A.S.I.O. interviews for security intelligence purposes I consider was fair and proper for such purposes. Those purposes were not the gathering of evidence for trial. However three discrete matters need reference to. The first is an incident with a photograph. In the second A.S.I.O. interview, on 27-28 January 2003, at one point (page 63 of 131) a photograph of Mr Thomas with his wife and daughter was shown to Mr Thomas. The passage reads:

"JT: Where was this taken?

Q: I don't know.

JT: It's a beautiful photo.

Q: Yes. I hope that doesn't upset you. But you might like to see it anyway.

JT: It's a beautiful photo. I'm very happy to see it actually.

Q: Yes. Okay.

JT: (Laughter). Very happy to see it.

Q: This is you?

JT: Yeah.

Q: That's Jack with his family. Okay.

JT: That's my wife.

Q: He features in our photo album.

JT: I can't commit terrorism, okay. I've got this, you know, I've got this.

Q: I might give you another look at that later.

JT: You know, it's much better.

Q: We might give you another look at that later.

JT: Thanks mate."

Listening to Mr Thomas' response he did not sound distressed or overwrought. In evidence in chief (Closed Court, 2 November 2005, 626) Mr Thomas did not suggest otherwise. However when I heard the interview I was concerned that the production and showing of the photograph may have been an emotional bait. The matter was touched on in cross-examination of the A.S.I.O. officer in evidence before me (Closed Court, 26 October 2005, 505-506). In that cross-examination the witness said that he had in the interview room a folder of photographs of numerous persons of interest amongst which was the photograph of Mr Thomas and his wife. The officer said (506):

"I guess it was just as we were flicking through the book, it was in amongst it. It wasn't a deliberate action."

I asked counsel whether the answer was being traversed and counsel stated that he would come back to it. Later the matter was returned to (557-559) and the witness stated that (557)

" ... once it became apparent that he was looking at himself and his wife we were quite sensitive about that aspect";

" ... it certainly wasn't a deliberate ploy on our part. Indeed it was just part of a series of photographs. It wasn't a book constructed specifically for the debrief of Mr Thomas. It was a book that had travelled."

The evidence given by the officer on that point appeared direct and frank.

29 The second matter, and of like kind, was a comment made by A.F.P. Agent Briskey during A.S.I.O. interview no. 4, on 29 January 2003. The accused had been handed a letter from his wife - an appropriate action - and the following was said (interview no. 4, 29 January 2003, pages 3 to 4 of 100):

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

JT (Laughter).

Q. (inaudible) ... once he believe that he will be happy ... (indistinct) ...

JT I'll be much happier in their arms.

Q. ... (indistinct) ... this letter I've touched it and its travelled all the way for you.

JT Touch her fingers.

Q. That's right, it's been a house that you were once familiar with. Now you're here and ... (indistinct) ..."

Mr Briskey in cross-examination stated (Closed Court, 11 October 2005, 160) he had no purpose in saying what he did about touching the letter and about its source other than "general chit chat". The A.S.I.O. officer who gave evidence before me stated (Closed Court, 26 October 2005, 558):

"So there was, on your evidence, no discussing about using as an emotional bait, photos or letters from home to encourage Mr Thomas to speak?

... Absolutely not.

So it was just by chance that Mr Briskey produced a letter in interview number four?

... I think, from memory, we were asked by the consul to relay that letter, given his difficulties in obtaining access himself at the time we were seeing Mr Thomas."

Mr Thomas in evidence in chief stated (638) that the incident was "tugging at my heart all the time". Entirely understandable.

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.

31 The third matter is an intervention early in A.S.I.O. interview number two on 27 January 2003 by a Pakistani officer there present. After the "window of opportunity" formulation by Mr Thomas and rehearsed in paragraph 43 below, the following was said (in relevant part) (pages 2-4 of 131):

"Q ... You're being kept 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 that custody I have no idea what the situation is and - um - I won't be told what the situation is, and ---

... And that's not our - frankly, that's not our concern. The consular people might have an interest in that sort of thing.

JT Yes

Q But we're purely interested in information, intelligence.

JT Yes.

Q 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.

JT Yes.

Q 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 ---

JT Of course.

Q Or would I rather be perceived as being obstructionist and difficult and potentially malicious in coming out with stories. So that's - and that's up to you to decide that. Okay. So, I mean, does that make any sense?

JT Yeah, okay.

Q Yes. I know we can't give you much hope or solace or anything, but it's just not appropriate nor is it our place ---

JT Yep.

JT Yep. ...

JT Okay.

Q We are also interested in your time in Afghanistan and Pakistan but we may not get the chance to go to that tonight. Our priority is to seek your opinion, your knowledge on things Australian, Australians or Australia.

JT Yep.

Q And threats that might exist or might not exist.

JT Yep.

Q And that's purely it. And as I said the other night, it's not our purpose here to judge you, to comment on what you might have done, it's simply to talk to you about your experiences.

JT Yep. So there's no rays of hope?

Q No, no. No, as I ---

[The Pakistani officer now speaking]

Q If I could just recall what my friend just said a second ago about the perception obstructionist or co-operative.

JT Yep.

Q But as we also said it's purely collecting information that can help us.

JT Yep.

Q Okay.

JT Yes, which is a good thing.

Q Well it is a good thing.

Q What I was saying, you mentioned that yesterday, the day before yesterday that I told you that - we told you that you had to prove it ---

JT Eh?

Q That you are not a terrorist.

JT Yes.

Q ... (indistinct) ... I never meant that it's a fact. But 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, right.

JT Mm.

Q So you have to tell us each and everything and the next question was that what you are sitting over here in front of all of us, right.

JT Yes.

Q Why you are sitting here. Right. You have to prove it.

JT Yes.

Q That you are innocent man and why you are sitting here.

JT Yes.

Q You have to prove it. You have to tell us, right. To your own people from your own country.

Q And - excuse me ... (indistinct) ... first of all to strike ... (indistinct) ... Do you believe the Al Qaeda people they're involved in the terrorist activity?"

The latter statements including particularly the "You have to prove it" statements were made by a Pakistani officer there present.[8] They were not in terms countermanded by the interviewing A.S.I.O. officers. By contrast, early in the A.F.P. interview on 8 March 2003 the interviewing officer stated (Q.23) "I'm not urging you anything" in the following sequence:

"WILLIAMS:

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 may be used in evidence. Do you clearly understand the caution?

A Yes.

Q17. Can you explain in your own words?

A Ah, my own words?

Q18. Yeah.

A Um, 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 ---

A Could be used as evidence.

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

A Right.

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

A Yep.

Q22. --- so you fully understand?

A Your 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?

A Right.

WILLIAMS:

Q24. But we're seekers of the truth?

A Yeah, okay.

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

A Okay.

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.

A Okay."

32 Propositions such as those stated in the earlier part of the preceding paragraph ("You have to prove it") would be entirely unacceptable in an interview for the gathering of evidence for trial. However that was neither the purpose nor the function of the intelligence interviews. I consider the question of the interface of the A.S.I.O. interviews and the A.F.P. interview below.

33 I turn to the evidence of the accused, Mr Thomas.

34 Mr Thomas gave extensive evidence before me on the voir dire. He showed himself to be intelligent, quick and alert.

35 In evidence in chief Mr Thomas stated as follows (paragraphs 36-38 below).

36 Upon his arrest on 4 January 2003 he was taken into Pakistani custody and remained in that custody until his removal to Australia on 4 June 2003. He was taken from Karachi airport to a Pakistani military base in Karachi. He was immediately questioned by two Pakistanis and two Americans. The questioners said he was in deep trouble. Mr Thomas said he was a student studying in Pakistan, a false story he persisted in at first. Mr Thomas said it became more and more apparent that the interviewers did not accept his story as truthful. He was again questioned the next day. Then he was taken to a mansion house in Karachi where he remained for some two weeks. He was interrogated by the same two Americans as before and by Pakistanis. The Pakistanis threatened to pour water on and electrocute him. They said (Closed Court, 2 November 2005, 593)

"We're outside the law. No one will hear you scream."

Then after a short interlude the interrogation resumed and a Pakistani officer grabbed Mr Thomas by the collar and commenced strangling Mr Thomas. The officer desisted and Mr Thomas (Closed Court, 2 November 2005, 595)

"decided that I'd better start talking because this was getting - you know, I'd gone way past my limit here."

Thereafter Mr Thomas cooperated with the interviewing authorities and told them the truth. He took officers to eleven safe houses in Karachi and Lahore. He was then removed to Islamabad and Rawalpindi. The Pakistanis in Karachi and later often said to Mr Thomas that if he cooperated he would be returned to Australia.

37 Mr Adams, the consul, visited Mr Thomas in Karachi on 22 January 2003. Mr Thomas told Mr Adams that he was receiving good treatment. There were no further interrogations of Mr Thomas by any persons until the first A.S.I.O. interview.

38 Mr Thomas was happy to see the Australian personnel. Mr Thomas wanted to prove himself to them so that he could return to Australia. He told them the truth. After the fourth A.S.I.O. interview he was removed to a military base in Lahore. He was there interrogated on a daily basis by Pakistanis and an American named Joe. After some two weeks Joe threatened Mr Thomas. Joe kept insisting that Mr Thomas knew the next terrorist target and said that he would be sent to Afghanistan where he would be bashed and beaten and his testicles placed in a vice. Joe also said agents would rape Mrs Thomas in Australia. Mr Thomas said he would do a lie detector test to prove he was telling the truth. Mr Thomas then was returned from Lahore to Islamabad and some days later had the fifth and then the sixth A.S.I.O. interview. At the end of the fifth A.S.I.O. interview A.F.P. Agent Lancaster told him of a new phase in the process, a formal record of interview by the A.F.P. Mr Thomas considered that the purpose of the A.F.P. interview was to test him and that if he did not pass the test he would remain in indefinite detention. He felt he "had no choice really" (647) to partake in the A.F.P. interview and answer the questions ("there was no free choice" - cross-examination at 692). Mr Thomas (647)

"wanted to show how - be as - be as cooperative as I could so that they would allow me home."

39 In cross-examination Mr Thomas said that he understood that the A.F.P. officers were inviting him to tell the truth.

40 The threats made to Mr Thomas in Lahore by Joe are to be condemned. Persons in custody are not to be threatened. Likewise the conduct of some of the Pakistani officers above stated. Fortunately the verbal threats were not a continuous course of conduct and were isolated. So too the single physical incident. At all times all Australian officers acted properly to Mr Thomas. Further, at no time was Mr Thomas rendered by Australians to others for ill treatment - a repugnant and unacceptable practice.

41 Generally I accept the truthfulness of Mr Thomas' evidence (and in particular his evidence of threats made to him). There are however four exceptions.

42 First, I do not accept Mr Thomas' evidence that he "had no choice" but to answer the A.F.P. 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 A.F.P. questions quoted in paragraph 14 above. 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 A.F.P. interviewers, or by the A.S.I.O. officers hitherto, either expressly or implicitly. It was a set of alternatives conceived by Mr Thomas himself. His decision to answer the A.F.P. 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.

43 The second matter, related to the first, as to which I do not accept Mr Thomas' evidence relates to an answer given by Mr Thomas early in the second A.S.I.O. interview (27 January 2003). Mr Thomas said (27 January 2003, page 2 of 131):

"JT Can I - can I sort of ask a couple of questions at the beginning?

Q Go.

JT I spoke to my friend here and I said - I was a bit worried of what you've said - with what you said the other day.

Q Which part?

JT That he said well you know all the names so you must be - you must be one of them, you must be a terrorist. Um - it's a - and then - and then this gentleman is saying that we've got a window of opportunity - um - but I want to know if it's a window of opportunity for both of us or if it's a window of opportunity, you know, just for you 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 that custody I have no idea what the situation is and - um - I won't be told what the situation is, and ---"

Mr Thomas in evidence said that the words "window of opportunity" were said off tape by Mr Briskey before the tape of the interview started. That allegation was not put to Mr Briskey in cross-examination (Closed Court, 11 October 2005, page 136). Given the questions quoted above (stating that it was not a window of opportunity and that the officers had no influence or control over Pakistani custody) I do not accept the evidence of Mr Thomas that it was Mr Briskey who said it. I consider it was Mr Thomas first who spoke of "a window of opportunity". That expression was characteristic both of Mr Thomas' language and of his thinking.

44 Third, I do not accept Mr Thomas' evidence (Closed Court, 2 November 2005, 688) that

" - I didn't fully know the difference between being cooperative in the A.S.I.O./A.F.P./CIA/FBI/ISID interviews or a formal record of interview."

Mr Thomas fully knew the difference between the intelligence interviews and the A.F.P. interview. He preferred the former because (A.F.P. interview Q.65)

" ... I really like the secret side of things ..."

Mr Thomas was a person of acuity. He was very alert. To say he did not fully understand the difference between the A.S.I.O. and earlier interviews on the one hand and the A.F.P. interview on the other is pretended.

45 Fourth, I do not accept Mr Thomas' evidence (Closed Court, 2 November 2005, 645-646) that Commander Lancaster, off tape and immediately before the A.F.P. interview commenced, said to Mr Thomas

Both Commander Lancaster and Sergeant Williams in evidence denied that such a statement was made. I accept their evidence. Further, the questions and answers in the A.F.P. interview itself are inconsistent with such an antecedent statement having been made.

46 Finally I turn to the interface of the A.S.I.O. interviews (and the ISID interrogations) and the A.F.P. interview of 8 March 2003.

47 Plainly there is an interface between the A.S.I.O. interviews and the A.F.P. interview. The interviews were all conducted in Pakistan by Australian personnel with the same interviewee over a period of some six weeks. Sergeant Williams of the A.F.P., who was one of the two A.F.P. officers who conducted the A.F.P. interview, was present at each A.S.I.O. interview. He asked some questions in the A.S.I.O. interviews. The content of all interviews - Mr Thomas' conduct, physical and verbal, in Afghanistan and Pakistan since his departure from Australia, and his knowledge - was common to all interviews. Further, there was an interface between the data from the A.S.I.O. interviews and the A.F.P. interview, helpfully reduced to schedule in defence counsel's written submissions at pages 59-62 which schedule I have had placed on the Court file.

48 Of course the requirements of Part IC and of the general law can not be sidestepped by simply importing into an interview governed by those requirements, antecedently obtained admissions or data obtained in circumstances in which those requirements did not apply. Otherwise the law would be negated.

49 I do not consider that the information obtained in the A.S.I.O. interviews was forbidden fruit, let alone poisoned fruit. Certainly it was not admissible in evidence. But it was not obtained illegally. It was permissible for that information to be put to Mr Thomas, so far as it was, in a subsequent police interview, so long as the circumstances or the mode of that puttage was not unlawful, improper or unfair.

50 I do not consider that the puttage of antecedent material, or the antecedent A.S.I.O. interviewing process, or the antecedent events, contaminated the A.F.P. interview. The A.F.P. interview was conducted fairly. There was no inducement proffered. There was a clear bifurcation in purpose, function and form between the A.S.I.O. interviews and the A.F.P. interview. Mr Thomas fully understood it. Thus his words and conduct at the commencement of the A.F.P. interview. Mr Thomas requested time to pray, which facility was granted him. In so requesting he stated (Q.72-78):

" ... can you give me another two minutes? I'll just ask okay --- and then I'll put it all down on the line or not."

Having prayed privately for three minutes Mr Thomas then stated (Q.79):

"I want the prosecution to understand that I'm in - I'm in there [sic] ah, bay. I've put myself right alongside with them."

The purpose and function of the A.F.P. interview was stated to Mr Thomas at the outset and he understood it.

51 In the above analysis I have segmented the A.F.P. interview in order to apply to it relevant principle. However, one can be too segmented, too analytical. As Keats wrote in Lamia:

"Philosophy will clip an Angel's wings,

Conquer all mysteries by rule and line ..."

It is necessary to view the events holistically and the affective state of the accused contextually. There is much knowledge on vulnerability in interviews.[9] I have considered the relevant matters with that contextual matter centrally in mind. Having done so, I find that the A.F.P. interview of the accused in Pakistan on 8 March 2003 was conducted properly and fairly, that the non-provision of legal access should not found its exclusion from evidence, and that the answers of the accused were voluntary.

52 Accordingly I find that the answers of the accused in the A.F.P. interview were voluntary[10], that the evidence elicited thereby was reliable[11], that the non-provision of legal access should not found the exclusion of the interview from evidence, that no inducement was offered to the accused, and that there is no reason in fairness or policy to exclude the interview from evidence.

53 For those reasons I ruled on 7 November 2005 that the interview of the accused by A.F.P. officers in Pakistan on 8 March 2003 was admissible in evidence.

[1] [1981] HCA 46; (1981) 147 CLR 512 at 519 per Gibbs C.J. and Wilson J..

[3] Quoted transcript hereafter contains some evident errors of transcription.

[4] R v Co Lan Tchiang, 24 June 1991, Supreme Court of Victoria.

[7] R v Ireland [1970] HCA 21; (1970) 126 CLR 321; Cleland v R [1982] HCA 67; (1982) 151 CLR 1; R v Swaffield and Pavic [1998] HCA 1; (1998) 192 CLR 159.

[8] See also first A.S.I.O. interview, 26 January 2003, pages 55, 72-75.

[9] For a useful general study see The Psychology of Interrogations and Confessions (Wiley, 2003) by Professor G.H. Gudjonsson.

[10] MacPherson v R above cited; Collins & Ors v R above cited.

[11] Sinclair v R [1946] HCA 55; (1946) 73 CLR 316; R v Swaffield and Pavic above cited; R v Tofilau [2003] VSC 188; (2003) 149 A Crim R 446; s.146 Evidence Act 1958.

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Cases Cited (8)