Over the past few days there have been thousands of words expressed about the Court of Appeal’s decision to quash Jack Thomas’s terrorism conviction – almost all of it from people with a barrow to push and a vested interest in telling only half the story. I’ve now had an opportunity to study the court’s decision and the following is intended as a brief and impartial explanation of the judges’ legal reasoning:
In 2001, Jack Thomas attended a terrorist training camp of al-Qaeda in Afghanistan. Later, in Pakistan, al-Qaeda gave him US $3,500, an airline ticket to Australia and a false Australian passport.
He was arrested by the Pakistanis and, while in their custody, interviewed by ASIO for security purposes. This was not evidence against him.
On 8 March 2003 (still in Pakistani custody) he was interviewed (ROI) by the AFP. This confession was the main evidence against him.
In 2006, a jury found Thomas guilty of receiving funds from a terrorist organisation (al-Qaeda) and of possessing a false passport. He was sentenced to five years jail with a minimum of two years.
No confession is admissible as evidence unless it is voluntary. This is for the trial judge to decide, not the jury. An involuntary confession may produce a true confession (as in Thomas’s case) or a false confession. Both are inadmissible.
A voluntary confession is made in the exercise of free choice. If the person confesses because he is overborne or because of duress, intimidation, pressure or inducement then the confession is not voluntary. (McDermott v R 1948 High Court)
The VSCA held that Thomas did not, in any practical sense, have a free choice to speak or be silent (paragraphs 66-95).
An admissible confession may also be excluded as a matter of discretion because it is unfair or against public interest. In Thomas’s case, the VSCA held the confession was unfair because he was not given the opportunity to communicate with a legal practitioner (paragraphs 96-115).
The VSCA quashed the conviction and is yet to decide whether to order a retrial (because of the “confession” by Thomas on ABC TV) or an acquittal.
An acquittal means that Thomas is an innocent man and “double jeopardy” prevents him from ever being tried again.