R v Thomas [2006] VSCA 165

Court of Appeal (Vic)|2006-08-18|Before: MAXWELL, P., BUCHANAN and VINCENT, JJ.A.

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

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

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

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

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

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

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

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

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

"No, I didn't - I didn't have any rights. There was no - I didn't feel I had any rights to anything."

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

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

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

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

"Yes. I didn't feel I - I actually didn't feel I had a choice. What I felt like, I was being pressured to make the - to say yes."

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

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

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

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

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

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

The application for leave to appeal against conviction

65 In support of this application, it is asserted that:

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

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

Having admitted the record of interview, the learned trial Judge erred in not excluding passages of that interview that were the product of cross examination by the interviewing officers and/or grounded by references to previous inadmissible interviews.
The learned trial Judge erred in admitting the evidence of the witness Goba.
The learned trial Judge erred in his directions to the jury by:

i) qualifying the directions on the standard of proof;

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

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

Ground 1: were the admissions voluntarily made?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thomas having said, twice, that he was "very happy" to see the photograph, the questioner then said - twice - that he/they -

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A I certainly - I certainly ain't any big fish.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

...

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

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

102 In Swaffield, Brennan, C.J. pointed out that the chief object of "the public policy discretion" was -

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

103 On the assumption that the applicant had exercised a free choice to speak or remain silent, the questions that would remain would be -

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

2. whether, in the circumstances, the reception of the evidence should be regarded as contrary to public policy.

(For reasons which follow, it is unnecessary to address the other arguments directed at the exercise of discretion.)

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

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

(a) ...

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

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

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

"believes on reasonable grounds that:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(b) arbitrary detention;

(c) the right to legal representation;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[10] He was also handcuffed and shackled.

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

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

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

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

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

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

[20] See, for example, Collins v. R [1980] FCA 72; (1980) 31 A.L.R. 257 at 259 per Bowen, C.J. and at 305-7 per Brennan, J.; R v Swaffield [1998] HCA 1; (1998) 192 C.L.R. 159 at 168 per Brennan, C.J.

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

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

[23] With respect to the burden of proof when the issue of voluntariness arises, see Cleland v. R. [1982] HCA 67; (1982) 151 C.L.R. 1 at 19, per Dixon, J. and the cases there cited.

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

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

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

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

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

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

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

[33] [1998] HCA 1; (1998) 192 C.L.R. 159 at 171-2 (emphasis in original).

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

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

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

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

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

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

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Cases Cited (2)