When do the ends justify the means?

It’s a hard question. Is it right to ignore one person’s rights for the potential greater good of society? Where do you draw the line?

I certainly don’t agree with the proposition put forth by two Deakin academics last year that there are situations where it is necessary in a liberal democracy to legalise torture of suspects, even if this results in death. No one mentioned this solution at the time, but it seems to me that if there was a situation where a suspected terrorist had information about a plot, there should be a legally sanctioned process of administering a truth-telling drug. As I have expressed in an earlier post, I do not think persons accused of terrorism or association with terrorist groups should be detained without charge and without trial in Guantanamo Bay.

With all this in mind, I have been looking at the recent decision of the Victorian Court of Appeal in R v Thomas [2006] VSCA 165. Briefly put, the facts are as follows. Joseph Thomas (also referred to as “Jihad Jack”) is an Australian national who converted to Islam. In 2001 he travelled to Afghanistan and attended the Al Faroq training camp run by Al Qaeda. Whilst there, he met Osama Bin Laden and other high ranking Al Qaeda officials. He then went to Pakistan where he stayed for a year and met an Al Qaeda official called Khaled bin Attash. He was arrested at Karachi Airport when attempting to catch a flight back to Australia. Thomas’ passport had been altered, seemingly to disguise the amount of time he had spent in Pakistan. He had a substantial amount of money in his possession. He said that he had been given the money and the airline ticket by Attash. He was detained in custody in Pakistan because of his suspected links to Al Qaeda.

The central issue of the appeal was whether the trial judge should have admitted into evidence an interview taken on 8 March 2004 by the Australian Federal Police (“AFP”) in Pakistan. The AFP were only given an interview strictly limited to 2 hours, with no access to a legal representative for Mr Thomas (despite the AFP’s request that he be given such access). Thus, the interview took place with no access to legal representation for Mr Thomas. The AFP told Mr Thomas that he had a choice whether or not to answer their questions and that he had the right to remain silent. However, from previous interviews involving American, Pakistani and ASIO officials, Mr Thomas understood that he would not see his wife and child again unless he cooperated with investigators.

The Court of Appeal found that, while nothing occurred in the actual interview of 8 March 2003 to overbear Mr Thomas’ will, he did not have a real choice as to whether or not to answer the AFP’s questions. This was because he felt that he had to cooperate to see his wife and child again, and that if he did not cooperate, there was a risk being incarcerated in an unidentified foreign gaol. Thus, the admissions made in the 8 March 2003 interview could not be described as voluntary, and should not have been admissible as evidence. Accordingly, Mr Thomas has been released from custody. This has caused outrage among some groups and commentators.

The Department of Public Prosecution has sought leave to make submissions for a retrial based on a television interview Mr Thomas made with Four Corners on 27 February 2006.

It seems to me that the Court of Appeal got the law right as to the admissibility of the AFP interview. In Australia there is a right to retain legal advice, which is linked to the right to remain silent and the right not to incriminate yourself. Because of the unusual circumstances, Mr Thomas was denied this right. Some claim that he should not have the same rights as others because he was associated with Al Qaeda. I think this is wrong. I return to my original point: as far as I’m concerned, the ends don’t justify the means.

But somehow the outcome still doesn’t sit easily with me. Maybe it’s because Mr Thomas sounded like he was being pretty frank in the AFP interview. I think it was probably an accurate account of what did happen. However, according to the Court of Appeal, it’s an account that shouldn’t be heard by a jury.

I started thinking like a jury member, not a lawyer… If I was a jury member, I would be really irritated not to get all the evidence and have a chance to weigh it up in my own mind. I guess that’s because I’m a very curious person and facts are very important to me. If I’d made up my mind on someone’s guilt or innocence supposing that X was the case, and then afterwards I found out that Y was the case, but it was inadmissible, I’d be angry.

My Evidence law is pretty rusty, but I seem to recall that evidence can be objected to on a number of bases. It can be excluded on the basis that it is prejudicial. So, for example, if someone has committed 50 previous offences exactly like the one in question, the jury cannot find out about it because it might prejudice them against the defendant. Evidence can be ruled inadmissible if it is obtained improperly, as in the Thomas case. Evidence can also be excluded on the basis that it is irrelevant (which seems sensible).

I’m not a criminal lawyer, criminologist or psychologist, and I have absolutely no experience with juries, so I concede my point of view might be totally naive. But it seems to me that juries should be given more evidence rather than less (to assist them in forming a full picture of what happened). It seems patronising to presume that only superhumans known as lawyers are capable of understanding that that some evidence has more weight than other evidence.

I wonder if it would be better to give a jury as much relevant information as possible, and let them make up their minds. Of course, in the case of something like Mr Thomas’ AFP interview, appropriate cautions as to the strength of the evidence would have to be given. The Trial Judge would have to say something like:

“Mr Thomas was not given an opportunity to seek legal representation. He was interviewed after a month of interrogation by Pakistani, American and Australian officials. He was told of his right to silence, but he did not exercise it because he was worried that if he did not speak he would not get home. He wanted to see his wife and child again. These circumstances affected his responses to questions, and made him keen to please the interviewers. You must take this into account in weighing up the truth of this evidence. This kind of evidence is not strong. It would be far stronger if Mr Thomas had been given a chance to seek legal advice, because we could then be sure that he was fully advised of his legal rights, and answering of his own true volition.”

It seems to me that the admissibility of evidence is one of the things that makes lay people think that courts are unfair. The perception is that it can allow offenders to get off on technicalities: form rather than substance. Form is really important, but if we are going to trust juries with decisions, maybe we should trust them with as much evidence as possible upon which to make that decision?

As I say, I’m not a criminal lawyer (never was, never will be, probably lucky for the world). I’m prepared for a better informed person who deals with juries all the time to tell me off, or tell me why my idea is totally wrong. It’s just a thought I had.

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6 Comments

Filed under criminal law, law

6 responses to “When do the ends justify the means?

  1. Aimee

    Despite misgivings I agree with the Court of Appeal decision – you couldn’t admit the evidence of that interview transcript, not without ignoring the laws of evidence or changing them into something else.

    On the one hand you are right that the transcript probably was frank and fairly reliable and yes a jury should have access to all the facts.

    But the discretions to exclude evidence are not just designed to ensure unreliable evidence is excluded, another basis is public policy. It is entirely possible that confessions extracted under torture or the threat of torture, or when no lawyers are underfoot to tell their client to shut the hell up are actually quite reliable – but the point is that we don’t let those kind of confessions in as evidence because we don’t want that kind of criminal justice system. We want our cops and investigators hemmed in with rules and procedures that get in their way because we don’t want to live in a police state, we want police to be accountable and follow proper procedures that value and accord the human and legal rights that our legal system recognises and protects.

    Rules such as the requirement for police to tape record the whole of the interview prevent the police from being able to ‘verbal’ the defendant by saying that “we all heard him confess, there are 3 of us and just one of him and he’s a criminal anyway, so accept our evidence over his” – which must be very tempting to do, especially where they ‘know’ the guy is guilty. The police can’t run that kind of an argument anymore because the Evidence Act requires them to have an independent witness to any confession or admission – a tape recording.

    To me, this is a similar point. We require the procedure to be complied with not so much out of fairness to this accused, but because we care that our police are not compromised and it is better to lose one case than to end up living in a state where criminal investigators are not held by the court to such high standards.

  2. KY

    I think a distinction has to be drawn as to the types of currently inadmissible evidence:

    1. In circumstances where the only issue in question is the quality of the evidence, then I see no reason why they should not be admissible and the jury could decide whether and what weight such evidence should carry. A classic example of that would be hearsay evidence.

    2. However, in cases where an extraneous public policy may be in issue, then such evidence must not be admitted as evidence regardless of how truthful or high quality it may be. The clearest example of this would be confessions extracted under torture or duress.

  3. Legal Eagle

    Excellent points from both of you.

    KY, I think your distinction is a good one. The admissibility rules which really irritate me are things like hearsay, prejudice and the like. Aimee, I totally agree that evidence extracted by torture, verballing and the like should not be admitted as evidence. We certainly do not want to reward investigative authorities for bad practice.

    But I guess something that I don’t like about a strict civil libertarian approach to criminal trials is that sometimes the rights of the defendant seem to be emphasised (over the rights of the victim of a crime or of society at large). In reality, I think a Court must perform a balancing act between the rights of all parties. So, I am cognisant of the considerations mentioned by Aimee, but in a case which is on the line like the Thomas case, it’s hard to draw an easy distinction (and indeed, the trial judge made the opposite judgment).

  4. DAF

    As aimee pointed out, the most significant reason for supporting the Court of Appeal’s decision is on public policy grounds.

    The real problem that I have is the (Murdoch) media’s rabid reaction to the decision. It appears that there is no freedom that we should not relinquish, no right we should not surrender in the quest to fight ‘terror’. History has provided other examples of societies who have gone down this path, ultimately relinquishing all liberties and being subjected to daily quasi-state terror. Although our democratic structures seem to be strong at the moment, in the face of ever diminishing freedoms, how long will that last? How long before it is suggested that elections be cancelled because of the ‘terrorist threat’ (this might seem far fetched but it was discussed by some parts of the US media in 2004)?

    Ultimately, the liberty that has been protected by this decision is fundamental and thus should be immutable. It is this liberty that ultimately protects each and every one of us from facing the threat of torture or other inducements to cooperate with the police. The Courts can deal with situations in which accused persons decide to keep their silence in the face of overwhelming evidence (see Weisensteiner). Further measures are not necessary.

    Finally, having seen a jury in action in a case in which I was personally involved (I was the victim, the accused was acquitted despite a confession and other seemingly rock-solid evidence), I would not trust a jury to tie my shoes, let alone make a sensible judgment as to the weight to be given to a dodgily obtained statement.

    Yep, I’m a raging civil-libertarian. This came as something of a shock to me following 2001! Previously, I had always seen myself on the right of the left.

  5. Legal Eagle

    Thank you all, for your contributions – really good to get some different views – it’s made me aware of some things I hadn’t thought of before.

    On the Jihad Jack case generally, it seems unfair that subsequent to the judgment of the Court of Appeal, the Federal Government have essentially put him on parole. It seems vindictive:
    “Well, we didn’t get you in a court case, so we’ll get you with these nasty laws, so there!”

  6. Iain

    what will be intresting is if the very similar admissions thomas made to The ABC result in him being convicted at retrial.

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