One of the strange by-products of the decision of the Victorian Court of Appeal allowing the appeal of Jack Thomas is not the decision itself — which involved a straightforward application of well known legal principles — but the hysterical reaction to it from some sections of the media, particularly The Australian and its stable of right wing columnists.
All seem to have forgotten that despite the police evidence now found to have been inadmissible, the jury found Thomas not guilty of the principal charge against him. Thomas continued to be described in pejorative terms in these sections of the media as “Jihad Jack”.
In its front page story, The Australian managed an entirely spurious link between Thomas and the Bali bombing and elicited predictable reaction from Bali victims. It even suggested that the judges should have found a way around the legal principle involved, but primarily argued that the principle was wrong and should be changed.
Professor David Flint fulminated irrelevantly and at length about the alleged shortcomings of the criminal justice system and expressed amazement that the court had found that the jury should not have been told of the interview in question between Thomas and the Federal Police. Ironically, he also complained of a collapse of public confidence in the judicial system, a result which the Murdoch Press for which he writes has assiduously pursued and never more than in the Thomas case.
None of these pundits seem to have understood the nature of the principle in question that was applied by the Court of Appeal, which is that evidence that has been obtained as a result of undue pressure and in circumstances where a person has been deprived of legal advice is inadmissible per se, whether before a judge or a jury. This is not a mere technicality but is a cornerstone of freedom in our society.
The reason for this is because improperly obtained confessions are notoriously unreliable and have often led to the conviction of innocent persons. The use of such confessions has always been a hallmark of totalitarian regimes. The Stalinist regime in Russia relied heavily upon such material in the notorious show trials of the 1930s as did dictators such as Franco in Spain and Salazar in Portugal and countless others, including South Africa’s apartheid regime.
The justification was always the same as that advanced by their modern followers, namely that the protection of the State required extraordinary methods or to put it another way, that the end justified the means. In the process, the object of doing justice according to law was abandoned. If we are to go down this path, the end result will be that our society will become indistinguishable in principle from the abhorrent regimes that we criticise. This can only be an aid rather than a hindrance to terrorism.
Somewhat surprisingly, it also doesn’t seem to have occurred to these critics to examine the conduct of the prosecution in the Thomas case as being a possible cause of the problem. We now know, because the prosecution has applied to call evidence of it, that it was in possession of material that was obtained voluntarily from Thomas during a media interview that might have assisted its case.
It must have been obvious that the police interview was of questionable validity and in those circumstances it is at least surprising that it didn’t seek to rely upon the alternative material at trial. Also of note is its alleged failure to make other material available which might have assisted Thomas’s case. Arguably it was these errors of judgment on its part, rather than any deficiency in the law, that led to the result now complained of.