Last year, on Monday 7 November, Victorian Supreme Court
Judge Justice Cummins made a landmark decision in Australian criminal law
It went unreported. It didn’t rate a mention in the news, as journalists present
were instructed not to report the details. All that was reported was that a
trial for terror suspect Jack Thomas would go ahead.

I was there, as were perhaps six reporters and as many
Thomas supporters who believe he is a political scapegoat. I wondered if
there was any way details of the reasoning behind the unprecedented decision
could be reported without being subject to contempt. It wasn’t a closed court
(although each of us was subject to heavy police handling before we entered).
Were Cummins J’s instructions to journalists binding?

The unreported decision concerned whether or not to accept evidence of a
statement extracted without legal representation, and allegedly under torture,
in a foreign military prison. The prosecution’s case rested
heavily on this evidence.

The legal advice I got was not to go public. But yesterday, Thomas’s lawyers did, in his appeal.

Thomas was never charged with any violent offence. Charged with four
terror-related offences, a jury found him not guilty of the most serious of
these. But he was found guilty of receiving funds from a group connected with a
terrorist organisation, and for altering his passport. The former charge was
allegedly based almost entirely on evidence extracted under torture in a lawless
Pakistani military prison without the presence of a lawyer.

Yesterday’s Age reported:

Three appeal court judges have challenged Commonwealth prosecutors to
explain a police interview of Joseph Thomas that breached Australian law… the
Appeal Court president, Justice Chris Maxwell, said that it appeared a decision
was made to go ahead with the interview in deliberate non-compliance with the

Justice Frank Vincent said: “You have a responsibility to comply with the
law that you are enforcing. It is a big thing to say that because you can’t
comply with the law, you are able to set (it) aside.” Justice Peter Buchanan said police could have delayed the interview until
Thomas was back in Australia.

But this is more than a case of prosecutors not complying with the law. I
think the reasoning behind Cummins’ original decision to allow as “evidence” statements allegedly extracted under torture, without the presence of
a lawyer, should be reported and scrutinised. I fear his decision, particularly
if upheld, sets an alarming and dangerous precedent.

The Age
later reported that:

During today’s hearing, Stephen Donaghue, for the Federal Attorney-General,
interrupted [Thomas’s QC] Mr Lasry’s submissions. He said it appeared Mr Lasry
was about to mention an unnamed agency when talking about so-called ASIO
interviews with Thomas in Pakistan.

Ms [sic] Lasry said he was going to mention that the Australian Federal
Police were present at the joint interviews with the “unmentionable” agency. He
then referred the court to documents to avoid reference to topics subject to
public interest immunity claims.

Now, it’s on public record who the “unmentionable” agency
might be. Aside from ASIO and the AFP, the three agencies involved in
interrogating Thomas are apparently the FBI, the CIA, and Pakistan’s ISID. So
the “unmentionable” agency would be one of them. Why this charade of secrecy,
after all the very public media stunts in this trial? Surely, to establish whether or not the evidence against Thomas
was extracted under torture, the Australian interrogators’ dealings with other
agencies must be brought to light?

There’s an interesting discussion about Thomas’s trial going on at Larvatus

Peter Fray

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Peter Fray
Editor-in-chief of Crikey