Jihad Jack's Trial by Media

Jack Thomas (‘Jihad Jack’ to some commentators) was freed by the Victorian Court of Appeal a week ago. Thomas was the first person to be tried in Australia under the Federal Government’s new anti-terror laws.

In the blaze of coverage that followed the overturning of charges laid against him, some pretty wild, prejudicial and uninformed things were said not just about Thomas but also about the law and the courts.

Thanks to Fiona Katauskas

Thomas was charged with four terrorism-related offences. At his initial trial, the jury acquitted him of the two most serious charges — those relating to his alleged training and planning for terrorism offences. He was convicted of two lesser charges: one count of receiving funds from a terrorist organisation and one of possessing a falsified Australian passport.

The evidence against him was based entirely on confessions Thomas had made in an interview with Australian Federal Police (AFP) officers in Pakistan. He had been arrested when leaving Pakistan to fly back to Australia and was detained in custody there for five months. In that time he was held in solitary confinement, was not charged, not tried, and had no access to consular or legal advice.

Thomas’s convictions were quashed because the Court of Appeal found that his admissions were made under duress. Australian Common Law holds that a confession made out of court by an accused person is not admissible as evidence unless it is shown to have been made voluntarily.

The Court held that, because Thomas had been subjected to intimidation, coercion and ill-treatment, it could not be said that his confessions had been freely made. Consequently, the record of interview was inadmissible and, because it constituted the entirety of the prosecution evidence, the convictions had to be set aside.

The Court summarised its decision as follows:

Put bluntly, there can be little doubt that it was apparent to [Thomas], 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 on his rights might well antagonise those in control of his life.

I should add that there was no suggestion that AFP officers had subjected Thomas to coercion or ill-treatment. This had occurred in a series of prior interviews by Pakistani and American officers — sometimes with ASIO officials present — that were designed to extract intelligence from him.

The ugly threats made there, however, were critical in persuading Thomas that he had no choice but to answer. These threats included that he may be jailed indefinitely at an unknown location, that agents would be sent to rape his wife, and that his testicles may be crushed.

Chris Merritt, The Australian‘s Legal Affairs Editor, was the first into the fray with a box editorial on 19 August. Merritt, whom I generally respect, penned a ballistic response to the Court’s decision which he characterised as a victory for the enemy.

‘There might be all sorts of nice legal arguments in favour of the decision’, he opined, ‘but try explaining that to the families of those who died in Bali’.

The legal reasoning behind the decision is hardly ‘nice’. What the Court did was uphold a fundamental Common Law principle — admissions must not be procured by duress. Let this principle go and the next concession will be the admission of evidence procured by torture. (What the Bali bombings have to do with Thomas is anyone’s guess.)

Merritt poured scorn on the Court of Appeal, accusing it of being out of touch with reality. ‘Why could [the judges]not find a reason to protect society from this man?’ he asked. But is he seriously arguing that we should have courts dream up rationales for incarcerating people charged under anti-terror legislation in spite of the law? Surely not.

Peter Costello, by contrast, got this absolutely right: ‘We live under a system,’ he said in commenting on the Court’s decision, ‘in which people charged must have the case against them proven. And sometimes that’s difficult.’

Next came Mirko Bagaric, the controversial Head of Deakin University Law School who favours including torture as part of the interrogator’s kit bag. In an article in the Herald Sun on 22 August, headed ‘Keep Jihad Jack Inside’, Professor Bagaric acknowledged that the judges had got the law right, but then attacked the law.

He proposed that in circumstances where a confession is obtained under duress, but where it is nevertheless reliable, it should be admitted into evidence. So, the rule against admitting involuntary evidence should be abolished. The remedy for coercive interrogation should rest, instead, upon penalising the errant law enforcement officials involved.

This is a splendid non-sequitur because the rationale for the exclusion of evidence obtained under duress rests in large part upon recognising that coerced confessions are inherently unreliable. And what better remedy is there for the abuse of police power than quashing any convictions resulting from the use of coerced confessions?

The Herald Sun‘s acerbic columnist, Andrew Bolt, also weighed into the debate in a piece headed ‘Jihad Jack’s Story’.

Unfortunately, Bolt missed the point of the Court’s judgment entirely. ‘It came down to this,’ he said. ‘Thomas did not have a lawyer with him when he made his crucial confessions.’ That, however, was not the basis on which the Court made its decision. Thomas’s record of interview was ruled inadmissible because he had been threatened and intimidated to the extent that he could not be regarded as having exercised free choice to co-operate.

Greg Sheridan in The Australian made the same error. ‘Thomas’s conviction was quashed,’ he said, ‘because in his interview with the AFP in Pakistan he did not have a lawyer present.’ It would be helpful if columnists took a little time to read court judgments more carefully. The Australian‘s Mike Steketee did, and wrote an informed and thoughtful piece as a result.

Sheridan went further, however. The Court’s decision, he argued, indicated that our legal framework is inadequate for dealing with the terrorist threat. Consequently, he appeared to support AFP Commissioner Mick Keelty’s suggestion that we should establish some kind of special ‘terrorism court’. This suggestion rests upon a dangerous confusion.

It is one thing to say that tough laws should be enacted to prevent, deter and punish terrorist activity. That’s fine. But it is quite another to propose that convictions in terrorist cases should be obtained in trials where longstanding principles of criminal law and procedure will not apply.

It is fundamental to the rule of law in every other modern democracy, that all people are equal before the law and should be treated equally by the law. The creation of special ‘terrorist courts’ would radically undermine that principle.

It is also fundamental that judges should apply the law impartially and independently. That is what the Court of Appeal did in the Thomas case. It refused to countenance a radical departure from our accepted understanding of the Common Law principles underpinning a fair trial. So did the US Supreme Court recently when it ruled the Bush administration’s military commissions unconstitutional.

The Court’s decision to overturn Jack Thomas’s conviction has not been a blow to the fight against terror. It has been an immensely significant example of the rule of law at work.

The day after this article was written, Jack Thomas became the first person to whom a Control Order will be applied under Australia’s anti-terror laws. (See Julian Burnside’s article also in this issue of New Matilda.)

Attorney-General Philip Ruddock declared that the Control Order was not imposed to punish Thomas but to protect the public but it’s clear that Ruddock was responding, at least in part, to the coverage of the Victorian Court of Appeal’s decision as described in the piece above. Thus, if the Court would not find against Thomas, the Attorney-General would.

Of their nature, Control Orders seek to deprive their subjects of a measure of liberty not for any offence they have committed, but because they may commit such an offence in the future. The presumption of innocence is reversed, and this is a clear indication that the fundamentals of fair trial in this country may now be under attack.

I note finally that the Court of Appeal in Britain recently dealt with Control Orders imposed on a number of terrorist suspects and found that the Orders constituted a form of indefinite detention without trial which infringed upon the UK’s Human Rights Act.

As New Matilda readers will know, we have no such Act in Australia. Nevertheless, it is clear that the Control Order provisions will be subject to constitutional challenge here. Jack Thomas, a man who has had all charges against him either rejected by a jury or quashed upon appeal, is in for a new and protracted legal battle.