Last Friday, the Victorian Court of Appeal decided to quash the conviction of
Jack Thomas. He had been convicted of receiving money from a terrorist
organisation, and a passport offence.
There has been an unfortunate
reaction in some parts of the press to the decision.
On the weekend,
The Australian went
so far as to say that the decision “allows a mate of Osama bin Laden to walk
free”. It noted that “the problem is that there is still a massive disconnection
between the law and reality” and went on to suggest that “instead of freeing the
enemy, the law should be doing more in the real fight for
Thomas fled Afghanistan and tried to return to Australia
because he was horrified at the September 11 attack, and utterly rejected the
methods of Osama bin Laden. It is simply nonsense to suggest that Jack Thomas is
a terrorist, or that he represents a threat to the community. There is no
suggestion that he has done anything at all which threatens Australia or
Australians. After he returned to Australia, he was allowed to remain free in
the community for 18 months before he was arrested. The Federal Police agreed
that he had done absolutely nothing wrong during that 18-month period.
is a long-established principle of law that a confessional statement made out of
court by an accused person may not be admitted in evidence against him unless it
is shown to have been voluntarily made. The principle operates to exclude
evidence obtained by duress, torture, trickery or inducements. It has been
formulated over many years with a single objective: to ensure that trials are
The Court of Appeal held that Jack Thomas’s “confession” was not
voluntarily made and should have been excluded. There was no other evidence
against him. The Federal Police who interviewed Thomas knew of his previous
interrogations by Pakistani authorities and by ASIO; they knew he had a lawyer
in Melbourne willing to help him; they knew he could not get legal help in
Pakistan; they knew he was entitled to have a lawyer present; they knew they did
not need to interview him until he returned to Australia. They led him to
believe that making a statement was the only way he would ever be able to get
back to Australia.
Criticism of the decision assumes that some people do
not deserve a fair trial. That view has been embraced by America at Guantanamo.
To his eternal disgrace, it has been embraced by the Attorney-General, Mr
Ruddock. But we are not yet America, and Mr Ruddock is not a judge: we have not
yet abandoned the principle of a fair trial for every accused.
we abandon basic principles in order to advance the “war against terrorism” we
hand victory to the terrorists. It would be the ultimate irony if we were to
destroy our democracy in order to save it.