Ray Fulcher, Melbourne
The Victorian Court of Appeal quashed the conviction for "terrorism" offences of Jack Thomas and released him from custody on August 18. Thomas was the first person to be convicted under the federal government's so-called anti-terror laws.
The three judges found that Thomas's conviction was unsound as the evidence it was based on was inadmissible in an Australian court of law. This was the argument by Thomas's defence from day one. Under Australian law, any confession must be given voluntarily: for evidence to be admissible in court it has to have been the choice of the defendant whether to speak or remain silent.
A confession is not voluntary if authorities offer inducements — promises or threats — or if the confession was the result of oppressive conduct, e.g. torture, such that the person's will is overborne and they believe they have no choice but to cooperate. These safeguards are to ensure that free "confessions" are truly free.
Thomas was convicted on February 26 of falsifying a passport and receiving "support" — a ticket home from Pakistan and US$3500 — from a terrorist organisation. These convictions were quashed. He had been acquitted of more serious charges of being a "sleeper" agent for al Qaeda.
In early 2003, Thomas was arrested in Pakistan and held by the Pakistani secret service. He had been in Afghanistan and undergone training with the Taliban. He was tortured, threatened by Pakistani security and advised to cooperate with Australian authorities as his only way of returning home. Thomas was subsequently interviewed by ASIO and the Australian Federal Police (AFP), whose goal was to turn the intelligence provided to ASIO into admissible evidence to prosecute him.
During Thomas's Supreme Court trial and subsequent hearing at the Court of Appeal, the prosecution made much of the "bifurcation", or separation, of the ASIO and AFP interviews. During the ASIO interviews (and with the aid of Pakistani security), Thomas was told he needed to cooperate to prove himself innocent of terrorism. He was told that if he did, he would return home.
Faced with the prospect of further torture by Pakistan's security forces, or perhaps a trip to Guantanamo Bay, Thomas cooperated. No such inducements were offered by the AFP, but the AFP officers were present throughout the ASIO interviews.
The prosecution argued successfully at Thomas's trial that since the AFP interviews offered no inducements and AFP officers formally advised Thomas that he did not have to speak, the ASIO and AFP interviews could be viewed separately, and that Thomas' statements during the AFP interviews were therefore voluntary and admissible.
The Appeals Court judges were scathing of this approach, and repeatedly told the prosecution that the ASIO and AFP interviews were unable to be artificially bifurcated.
The judges were also critical that the AFP interview proceeded without Thomas being allowed a lawyer. The Pakistani authorities had refused Thomas a lawyer even though he had requested one and under Australian law had the right to contact, or attempt to contact, one. The judges acknowledged that the AFP made efforts to obtain a lawyer for Thomas, but argued that the interview should not have proceeded if it could not be done according to Australian law.
In quashing the convictions, the judges said that the AFP's interview on March 8, 2003, was conducted in circumstances where Thomas was under external pressure "calculated to overbear his will". The interview was therefore inadmissible, and as it was the sole basis of evidence against Thomas, the convictions could not stand.
In what Thomas's barrister Mark Taft described as a "bloody-minded" response, the prosecution immediately requested the appeal judges approve a retrial to be based on potential new evidence from a TV interview that was aired after Thomas' conviction. Taft argued for an immediate acquittal. The judges will consider this in six weeks, but told the prosecution that it had had plenty of time to raise this during the appeal but hadn't.