R v Thomas

1 On 26 February 2006, the appellant was convicted by a Supreme Court jury of one count of intentionally receiving funds from a terrorist organisation[1] and one count of possessing a falsified Australian passport.[2] He was acquitted on two further counts of intentionally providing resources to a terrorist organisation.[3]

2 Essential to his conviction on both counts was the admission at his trial of evidence of self-inculpatory statements made by him in the course of an interview conducted by two members of the Australian Federal Police in Pakistan on 8 March 2003 ("the AFP interview"). The appellant sought leave to appeal against his conviction on the ground (amongst others) that the trial Judge ought not to have admitted that evidence.

3 On 18 August 2006, this Court upheld that ground of appeal and ordered that the appellant's appeal should be allowed and the convictions quashed[4]. In publishing the reasons for judgment, the Court stated:

"Counsel for the Crown having acknowledged in the hearing that both convictions depended upon the record of interview being admissible, we propose to direct that a judgment and verdict of acquittal be entered on each count."[5]

4 Counsel for the Commonwealth Director of Public Prosecutions then submitted that the Director should have the opportunity to address the Court as to why, instead of directed verdicts of acquittal, there should be an order for a retrial. The Director's counsel confirmed that, on the evidence at trial, both convictions did depend upon the admissibility of the AFP interview, but submitted that certain statements made by the appellant in a media interview, published after his conviction, might constitute a fresh and sufficient basis for conviction on both counts.

5 Counsel for the appellant urged the Court to proceed as originally proposed, and direct verdicts of acquittal. In the event, the Court decided that the submission made on behalf of the Director could not be disposed of without full argument on both sides and the hearing was adjourned.[6]

6 We have now had the benefit of detailed written and oral argument. The Director relies on statements made by, or attributed to, the appellant -

• in two interviews with a journalist from the Australian Broadcasting Corporation conducted in November 2005. Excerpts from those interviews formed part of a "Four Corners" program screened on ABC television after the appellant had been convicted. Full transcripts of both interviews are now before the Court;
• in a 13-page statement written by the appellant, while he was still in Pakistan. A copy of the statement was provided on his behalf to the ABC journalist and was referred to in the course of one of the interviews; and
• in an article published in "The Age" newspaper on 27 February 2006.

7 The Director argues that these statements - none of which was in evidence before the jury at the trial - are capable of supporting a conviction on both counts "on the same case as made at the original trial". The Director further argues that there are no circumstances which would make it unjust for this Court to order a retrial. We defer for later consideration the question whether the relevant statements constitute a basis on which a reasonable jury could convict the appellant on one or both counts. It is necessary first to identify the principles which govern the Court's discretion to order a retrial.

8 Under s.568(2) of the Crimes Act 1958, the Court of Appeal, having allowed an appeal against conviction, is obliged to quash the conviction and must -

"either direct a judgment and verdict of acquittal to be entered or direct a new trial to be had."

Which of those two courses is to be adopted in any given case is a matter for the discretion of the Court. The subsection provides no guidance as to the considerations which should govern the exercise of the discretion.

9 In DPP (Nauru) v Fowler,[7] the High Court (Gibbs CJ, Murphy, Wilson, Deane and Dawson JJ) identified the relevant considerations. The governing consideration is what the interests of justice require in the circumstances of the case. Their Honours said:

"The power to grant a new trial is a discretionary one and in deciding whether to exercise it the court which has quashed the conviction must decide whether the interests of justice require a new trial to be had. In so deciding, the court should first consider whether the admissible evidence given at the original trial was sufficiently cogent to justify a conviction, for if it was not it would be wrong by making an order for a new trial to give the prosecution an opportunity to supplement a defective case. In the present case, the admissible evidence given at the trial satisfies this test. Then the court must take into account any circumstances that might render it unjust to the accused to make him stand trial again, remembering however that the public interest in the proper administration of justice must be considered as well as the interests of the individual accused."[8]

10 Fowler establishes a two-stage analysis, which has since been applied in all Australian jurisdictions.[9] At the first stage, the Court considers whether the admissible evidence given at trial was sufficiently cogent to justify a conviction. If it was sufficiently cogent, the Court proceeds to the second stage, and considers any circumstances that "might render it unjust to the accused to make him/her stand trial again."[10] But if the admissible evidence given at trial was not sufficiently cogent to justify a conviction, an acquittal should be directed. As the Court said in Fowler -

"[I]t would be wrong by making an order for a new trial to give the prosecution an opportunity to supplement a defective case."[11]

11 It was common ground that the task presently confronting this Court should be approached in accordance with the Fowler analysis. The question for consideration is whether the present case is to be disposed of at the first stage or the second stage of the analysis. If Fowler is read literally, the language of the first stage is applicable. Once the AFP interview is held to have been inadmissible, the admissible evidence given at the appellant's trial was not sufficiently cogent to justify a conviction.

12 But the formulation of the first stage by the Court in Fowler was addressed to - and only to - the typical case, that is, the case where the court of criminal appeal rules some part of the evidence at trial to have been inadmissible and concludes that the remaining admissible evidence could not support a conviction. In those circumstances, the High Court held, it would be wrong to order a retrial because to do so would give the prosecution the opportunity of supplementing what the appellate court has found to be a defective case. The Court doubtless envisaged that such supplementation would involve utilising evidence which was available but which the prosecutor decided not to use and/or evidence which was capable of being obtained for the trial by the exercise of reasonable diligence but had not in fact been obtained. The unfairness of the order for retrial would consist in the prosecution's having a second opportunity to present evidence which could have been deployed at the trial.

13 The present case is different. It has one crucial, atypical, feature which appears never to have been considered by an appellate court. It is that the evidence on which the prosecution would rely on a retrial of this appellant is evidence which was not known - and could not have been known - to the Crown at the time of the trial. Although the ABC interviews had taken place before the trial, this was a matter of which the Crown, inevitably, knew nothing. The same is true of the interview of which excerpts were contained in "The Age" article.

14 For practical purposes, the additional evidence did not exist at the date of the trial. The question is whether, in undertaking the first stage of the Fowler analysis, the appellate court must confine its attention to the admissible evidence in fact led at the trial or should, instead, take into account admissible evidence of this kind, that is, evidence which was neither known to nor knowable by the Crown at the time of the trial.

15 In the event, counsel for the appellant and counsel for the Director were in accord that new evidence of this kind should be taken into account in the first stage of the analysis. If the new evidence is capable of supporting a conviction, Ms Abraham argued, the interests of justice require that there be a retrial, subject to any overriding considerations of injustice. Mr Lasry conceded that he could not responsibly make a submission to the contrary (though he maintained that the new evidence could not support a conviction). In answer to a question from the bench Mr Lasry conceded that, in these unusual circumstances, a retrial could not be regarded as unfairly giving the prosecution "an opportunity to supplement a defective case". As Ms Abraham acknowledged, the statements made by the appellant in the subsequently-published interviews may enable the prosecution to establish a case against him which, without those statements, could not have been established. But it is not contended for the appellant that it would be "wrong" in the Fowler sense to permit the Crown to rely on this evidence (assuming it to be sufficiently cogent to support a conviction).

16 This was a very significant concession, made by experienced criminal counsel. In our view, the concession was properly made.

17 It might have been argued for the appellant that he should not be prejudiced by the error which the trial Judge made. That is, had it not been for the erroneous admission of the AFP interview, the prosecution would have been constrained to conclude - as Ms Abraham properly conceded before us - that there was insufficient admissible evidence to justify presenting the appellant for trial. It may be that, in those circumstances, the Director of Public Prosecutions would have decided to enter a nolle prosequi. But this Court cannot speculate about what might have happened had matters played out differently. Moreover, a nolle prosequi is not the same as an acquittal. Thus any reliance on considerations of double jeopardy[12] - which Mr Lasry in any event disavowed - would be, at best, by way of analogy only.

18 The appellant's convictions have been quashed because he did not have a trial according to law. In deciding whether he should be retried, we must determine what the interests of justice require. The "new evidence" - unknown and unknowable at the time of the trial - consists of statements voluntarily made by the appellant. In those circumstances, it would in our view be contrary to the interests of justice for us to confine our attention to the evidence led at trial and hold that the new evidence must be ignored.

19 So to say does not, of course, conclude the matter. What we have said so far simply means that we must now consider whether the new evidence provides a sufficient basis for a reasonable jury to convict on one or both counts. If, and only if, that question is answered affirmatively, do we proceed to the second Fowler stage, and determine whether there are considerations which would nevertheless make it unjust for this appellant to be retried.

21 Mr Lasry for the appellant conceded - properly - in relation to the passport charge that there was a basis in the new evidence on which a reasonable jury could convict on that count. In relation to the charge of receiving funds, however, he argued that it would not be open for a reasonable jury to convict his client on the basis of the new evidence.

22 Mr Lasry relied in particular on the fact that the only evidence which would be before the jury about the source of the funds (admittedly received by the appellant) was the appellant's own statements, some of which indicate that the funds came from persons unconnected with al Qaeda. He argued, further, that the handwritten statement - which was inadmissible at the trial - remained inadmissible. It had not been adopted by his client - so as to constitute a voluntary statement - merely by virtue of its having been provided to the ABC journalist with his authority.

23 It is unnecessary to decide the question of adoption, since we are of the view that - the handwritten statement apart - there is sufficient material in the new evidence to support a conviction on the "receiving funds" count. The statements made by the appellant in the interviews disclose that the funds in question were provided to him by the same person as had earlier conveyed to him the request of Osama Bin Laden that the appellant consider working for al Qaeda in Australia. For obvious reasons, it is desirable that we say no more on this subject than that.

24 Having formed that view of the evidence, we proceed to the second stage of the Fowler analysis and ask whether there are circumstances which would render it unjust for the appellant to be retried, notwithstanding the existence of evidence on which he could be convicted.

25 As Callaway JA stated in R v ALH:[13]

"There is no doubt that s 568(2) of the Crimes Act 1958 does confer the discretion that counsel invoked, ie to direct a judgment and verdict of acquittal even where it has not been held that the evidence was insufficient to sustain a conviction. ... It is, however, to be exercised with caution and only in exceptional circumstances."

26 Earlier in Tadic,[14] his Honour described the giving of a direction for a new trial as the "ordinary course" to be followed where an appeal against conviction was successful, pointing out that its adoption -

"avoids a judicial determination otherwise than on trial by jury in circumstances where it has not been held that the evidence adduced at trial required an acquittal."[15]

27 In Fowler,[16] the Court stated, when dealing with this aspect, that -

"... the public interest in the proper administration of justice must be considered as well as the interests of the individual accused."[17]

There is an important principle underlying these observations. An appellate court must be careful not to usurp the functions of the properly-constituted prosecutorial authorities which are entrusted with responsibilities and discretions to act in the public interest in the initiation and conduct of criminal prosecutions, or lightly set to one side the system of trial by jury in a case in which there is evidence capable of supporting a conviction. Intervention is justified, however, to ensure that the subjection of an individual to the continued operation of the criminal justice system is not itself a source of oppression or unfairness.

28 In the quite different context of a case involving the admissibility and possible exclusion of inculpatory statements made by an intellectually disabled accused, the Court of Criminal Appeal made the point that the day to day operations of the criminal justice system of a society reflect in practical and powerful ways its actual underlying values, whatever may be the rhetoric through which the society represents itself. The rights, protections and discretions integral to the proper functioning of the criminal justice system in this community are concerned not only with the interests of those who may be subject to it but also to ensure that its operations are not surrounded by an aura of unwarranted harshness or unfairness that "compromise both the system and the society which supports it."[18]

29 It is of crucial importance that our criminal law structures operate and can be seen to do so in accordance with their stated values. This can present a particular problem in a case in which an appeal against conviction has been allowed by reason of the commission of some error of law by a trial judge or because the trial has otherwise miscarried. Wickham, J, in the Western Australian Court of Criminal Appeal, addressed this concern in his judgment in Rabey v R.[19]

"Once justice has miscarried it is not always easy to maintain the scales in precise equipoise on a second occasion. The public interest in securing a fair trial of an alleged wrongdoer must be weighed against public inconvenience and expense, and against the possible oppression upon a member of the public who is placed in jeopardy twice for the same offence, has already spent some time in prison and has already been through one trial and an appeal."[20]

30 The factors to be taken into account in the exercise of the discretion to direct an acquittal or a new trial in the event of a successful appeal have not been clearly identified. The cost and complexity of any re-trial, the seriousness of the offence involved, the likely outcome in terms of penalty, the length of time during which the individual has been subject to criminal law process, and a multitude of personal factors could all assume relevance. We have not attempted in this list to cover the field with respect to the matters to be taken into account, but simply to draw attention to the array of features that could possess significance in a given situation.

31 In the present case, senior counsel for Mr Thomas has emphasized the following considerations:

1. The appellant has been subjected to an extremely lengthy stressful process since the time of his initial interception in Pakistan which occurred almost four years ago. To date, he has been imprisoned and released three times; first, without charge in Pakistan for five months from January to June 2003; secondly, in Australia from 18 November 2004 to 14 February 2005; and thirdly, in Australia from 23 February 2006 until 18 August 2006. The conditions of his confinement in Pakistan were described as "very harsh" and the bulk of his custody in Australia, it was said, has been spent in solitary confinement. Each incarceration, counsel contended, has resulted in inevitable emotional disruption to the appellant and his family. In those circumstances, he argued, to require the appellant to undergo a further trial with the prospect of a return to prison would impose undue hardship upon him, particularly when regard is had to his acquittal on the major charges laid against him.
2. The extent of the stress to which the appellant has been subjected is reflected in the fact that he has been diagnosed as suffering from a major depressive disorder and post traumatic stress disorder.[21]
3. In the period following the determination by this Court of the appellant's appeal, there has been substantial media coverage, both of the Court's judgment and an application made by the Commonwealth for a control order to be applied to him. Such, it was submitted, has been the volume and intensity of the coverage that a fair trial would be impossible.
4. The appellant has cooperated extensively with authorities including those from Pakistan, the United States and Australia. Upon his return to Australia in June of 2003 he continued to cooperate while living in the community until his arrest and charge in November 2004. The prosecution of the appellant was not initiated until November 2004 and did not rely upon any conduct of the appellant following his return 17 months earlier. The delay in his prosecution, counsel asserted, has never been adequately explained.

32 The proper exercise of the discretion in the particular circumstances of the present case requires that serious consideration be given to each of these factors and their combined effect. There are, however, other matters that must be taken into account. First and importantly, Parliament, in fixing a maximum penalty of 25 years' imprisonment for the commission of the offence of receiving funds from a terrorist organisation,[22] has indicated clearly the seriousness with which the engagement in such conduct must be viewed. There is a powerful public interest, militating in favour of directing that a trial be held and the question of guilt determined by a jury, where an arguable case can be seen to exist that there has been a breach of the law of this kind.

33 Although, as Mr Lasry submitted, the appellant has been subjected to three periods of incarceration in undoubtedly very difficult circumstances, it must be borne in mind that he was sentenced to a term of five years incarceration for the offences in relation to which our discretion must be exercised. He has, to the present time, served only a relatively small part of the non-parole period fixed. The appropriateness of the sentence imposed upon the appellant was the subject of debate in this Court in the appeal hearing, but the sentence appeal lapsed when the conviction appeal was upheld. It was, nevertheless, common ground that the sentencing judge fell into error in fixing a minimum term that did not comply with relevant statutory provisions (to which his Honour's attention had not been drawn).

34 On some occasions, the court has entered a verdict of acquittal where it has appeared extremely unlikely that the person would, if convicted, be required to serve any further substantial period of imprisonment, or where the imposition of a monetary penalty was perceived as the probable outcome if a re-trial was ordered, or where the individual has been at liberty for a lengthy period of time having served most or all of the sentence earlier imposed. That is not the situation here. Obviously, it would be quite inappropriate to express any opinion, however hedged or tentative, concerning the penalty to be imposed were the appellant to be convicted on a re-trial. What can be said is that we are not in a position to say that he may not reasonably be required to serve a further significant period of imprisonment. Accordingly, it would not be appropriate for the Court to refuse on that ground to direct that a further trial be held.

35 With respect to the arguments advanced concerning the notoriety attached to this matter, the Court is well aware that the appellant and the nature of the charges laid against him have been the subjects of a great deal of media attention from the time that it became public knowledge that he had been arrested in Pakistan. This is hardly surprising. Cases involving possible serious breaches of the criminal law, particularly when they can be perceived to affect personal or general safety, are understandably of considerable interest and legitimate concern to the entire community and it is to be expected that they will become the focus of attention when they arise.

36 The Courts are accustomed to dealing with such cases, regularly encountering situations in which the notoriety of an event or an individual involved in a proceeding has been the subject of public debate, even on occasions of a kind amounting to punishable contempt. Brennan J recognized in his judgment in R v Glennon[23] that -

" ... some degree of risk, albeit not a substantial risk, to the integrity of the administration of criminal justice is accepted as the price which has to be paid to allow a degree of freedom of public expression when it is exercised in relation to a crime that is a topic of public interest."[24]

"[o]f necessity, the law must place much reliance on the integrity and sense of duty of the jurors. The experience of the courts is that the reliance is not misplaced. In Munday ... Street CJ repeated an unreported passage from one of his Honour's earlier judgments:

' ... it is relevant to note that the system of jury trial is geared to enable juries to be assisted in every possible way to put out of mind statements made outside the court, whether in the media or elsewhere. There is every reason to have confidence in the capacity of juries to do this. Judges do not have a monopoly on the ability to adjudicate fairly and impartially. Every Australian worthy of citizenship can be relied upon to discharge properly and responsibly his duty as a juror. Particularly is this so in the context of being one of a number or group of others all similarly charged with this responsible duty. I have great faith in the multiple wisdom and balance reflected in the verdict of a jury.'

If the courts were not able to place reliance on the integrity and sense of duty of jurors, not only would notorious criminals or heinous crimes be beyond the reach of criminal justice but there would have to be a change in venue for many trials now held in circuit cities or towns where knowledge of the crime and of the alleged criminal easily acquires a wide currency outside the courtroom. Our system of protecting jurors from external influences may not be perfect, but a trial conducted with all the safeguards that the court can provide is a trial according to law and there is no miscarriage of justice in a conviction after such a trial."[25]

Not only are those remarks apposite to the present situation but the confidence in the integrity of the justice system underlying them can be seen to be well placed in this very case, where the jury at the trial arrived at different verdicts on the separate counts according to the evidence before them. We are far from persuaded that a fair trial could not be held.

37 The other considerations relied upon by counsel for the appellant - the evidence concerning his mental state, the length of the process to which he had been subjected, the periods and circumstances of his incarceration and the extent of his co-operation with the authorities - are all matters to which we have had regard. All are relevant to the exercise of our discretion and possess weight. However, whether they are approached separately or in conjunction, in our view they would not justify a decision to direct that an acquittal be entered.

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

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

[3] These charges were brought under paragraph 102.7(1) of the Criminal Code Act 1995 (Cth).

[4] [2006] VSCA 165

[5] R v Thomas (No. 2) [2006] VSCA 166.

[6] [2006] VSCA 166.

[7] [1984] HCA 48; (1984) 154 CLR 627.

[9] See, for example, R v Tadic [2003] VSCA 28; R v ALH [2003] VSCA 129; (2003) 6 VR 276; R v Anderson (1991) 53 A Crim R 421; R v Liristis [2004] NSWCCA 287; (2004) 146 A Crim R 547.

[12] cf. Davern v Messel [1984] HCA 34; (1984) 155 CLR 21 at 30 per Gibbs CJ.

[13] [2003] VSCA 129; (2003) 6 VR 276 at 280.

[14] R v Tadic [2003] VSCA 28.

[16] Director of Public Prosecutions for Nauru v Fowler [1984] HCA 48; (1984) 154 CLR 627.

[18] R v Warrell [1993] VicRp 48; [1993] 1 VR 671 at 681.

[19] Rabey v R [1980] WAR 84.

[21] The attention of the Court was drawn to the appellant's admission since the imposition of sentence to Thomas Embling Hospital and to an updated psychiatric report from Dr Bell, the Assistant Clinical Director of the Victorian Institute of Forensic Mental Health.

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

[23] R v Glennon [1992] HCA 16; (1992) 173 CLR 592.