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  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.
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.