A number of very important issues arise from the Jihad Jack appeal.
Readers will remember that Thomas was charged with terrorism offences based solely upon a confession to AFP officers in Pakistan. Immediately before his trial and with the consent of his lawyers, he was voluntarily interviewed by the ABC’s Four Corners, during which he also gave them a handwritten statement. Both the interview and the statement amounted to a confession.
During preliminary argument, the defence alleged that the Pakistan confession was involuntary and Thomas gave sworn evidence to the judge to that effect. The judge rejected the application. Thomas did not give evidence in front of the jury. Immediately after the jury verdict (he was convicted of some counts and acquitted of others), Four Corners played the interview to the public.
Thomas appealed on the basis that the Pakistan interview was involuntary, the Appeal Court agreed and quashed the convictions. Belatedly, the Crown said it had fresh evidence (the now public ABC interview) and the Court held that there should be a retrial based upon it.
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Three important issues arise.
First, the legal and ethical position of the ABC in obtaining and withholding admissible evidence of a serious criminal offence (terrorism).
The general problem clearly arises in the following hypothetical example: A person charged with murder and about to stand trial gives a TV interview in which he admits the crime. The TV station agrees to keep the interview secret until after the trial. The person stands trial, gives evidence on oath, denies the offence (contrary to the TV interview) and is acquitted. Because of the double jeopardy rule, he can never be tried again. On the night of the acquittal, the TV network (whose reporters had attended the trial and heard the evidence) play the interview on air to the public. As a result, the public loses confidence in the criminal justice system.
Should the ABC have made full disclosure to the AFP once it had the material, thus enabling it to be used by the Crown in the trial? Who made the decision to withhold? Did the ABC have legal advice and, if so, what was that advice? It may be that the serious criminal offences of misprision, concealment, compounding or an attempt to pervert the course of justice have been committed by the ABC and some of its staff. Thus the ABC needs to be fully investigated for possible ethical breaches and criminal misconduct.
Second, the ethical position of Thomas’s lawyers, who (I assume) knew that he had made a “voluntary” confession to the ABC yet permitted him to give sworn evidence that his Pakistan confession was “involuntary”. This question needs to be taken up by the professional authorities and investigated for any ethical offences that may have occurred.
Third, the competence of the Commonwealth DPP in its prosecution of this trial. It is an extraordinary omission not to argue on the appeal that, one, there was fresh evidence (the ABC material) which, two, should be admitted as evidence on the appeal to support the Crown contention that the Pakistan confession was voluntary.
One difficult legal point needs to be grasped in all this.
The voluntary ABC confession is (in my opinion) admissible and relevant to, and highly probative of, the voluntariness of the earlier, similar confession in Pakistan. The fact that Thomas indisputably makes a voluntary confession to the ABC makes it more likely that the similar, earlier confession he made in Pakistan was also voluntary. If known, it would have been powerful evidence at the trial.
It also should have been raised by the Crown as fresh evidence on the appeal.