I am many things, but have never before been an acronym.

What a joke, who do the courts act for, lawyers and the accused or victims?

Criminal, equitable, property, succession, contract, torts, administrative, constitutional etc etc –whatever Rog, there’s a concept behind it, a purpose that it serves, sometimes incredibly difficult to grasp for people who can’t force it into (knee-jerk populist) submission: it’s called justice.

steve at the pub on 20 August 2006 at 1:00 pm
If the law isn’t working, it is our job to change it.

There you go!

At last, a practical suggestion from a RWDB.

If you RWDBs want to mount a campaign for reform, you ought to talk to us Lefties.

We Lefties have been the world champion reformers for at least the last 180 years.

So, any questions?

What a joke, who do the courts act for, lawyers and the accused or victims?

Joe Cinque case was another farce where the responsibility of the guilty was diminished to the point of irrelevance, the victims were abandoned to deal with their grief whilst justice was “seen to be done”.

Phillip Adams: Are you responsible, or were you responsible, for what you did, in your own view: sit in judgment on yourself.

Anu Singh: No, I absolutely am responsible and take full responsibility for it, and that’s something that is difficult to come to terms with and it’s something that I live with every single day. It’s difficult that the whole notion of responsibility is predicated on the basis that someone is rational, and it makes it even more difficult that when you are rational, you can look back and see what you’ve done in a state of irrationality, and it’s actually harder to be able to accept that, because I guess a lot of me wishes so much that I’d listened to so many people who had said, ‘Look, there’s something wrong, you need to actually get treatment in a different way.’ I was consumed with what I perceived to be physical illnesses, and in fact what happened was that my illness manifested in a physical way, so that I was not at all wanting to accept the prospect that possibly there wasn’t something wrong with my body, it was something with my mind. And I guess in terms of now accepting full responsibility, I’m trying to determine ways of making it up to my parents, to society, I don’t think that …

Shameful semantics

If only they could synthesise the imperviousness of the RWDB mind. They could coat the Space Shuttles with it.

They’d survive a million re-entries.

Katz has opined here that guilt (or innocence) is not the primary issue in justice.

Actually Rog, Katz is correct in that the whole appeal was about admissability, and was the primary isssue. Guilt, the secondary issue was quashed by rejecting its admission in Cummins J’s lower court.

Despite many RWDBs who want to throw all perceived enemies into jail without due process, and also throw away the keys, the case was all about long-held, hard-fought-for legal rights which will not disappear just because those RWDBs have simplistic irrational childish neo-con inspired fears of phantom enemies which have not coincidently replaced “reds under the bed.”

The Victorian Supreme (Appeal) Court said there is a process and it must be adhered to. Period.

Robert, it was sort of meant as a rhetorical question but we both suffered from not having all the transcripts at our fingertips, but I want to thank you sincerely for the debate, that’s what really matters, and so darned useful for honing my (at this moment slightly chateaux cardboard sozzled) grey matter

Katz has already said elesewhere that she wants to see Saddam reinstated as President of Iraq.

Katz has opined here that guilt (or innocence) is not the primary issue in justice.

Katz is rational, and calm.

Having said that, Peter and Roberts’ comments above are good examples of why it is worth it.

Still, allow me to try to explain myself a little bit. In the previous thread, I was playing devil’s advocate to a certain extent — I made it pretty clear from the outset that I was not familiar with the full details of the case, but was trying to clarify what Cummins J did and did not hold in his judgment. However, I admit slipping “into character” a little bit too readily as the discussion went on and I got cranky.

I was quite open about the fact that I was in no position to argue the merits of the “voluntariness” aspect of the case. In fact, my first comment in the thread asked for “those who are more knowledgeable” to step forward. I asked for more information about those claims the whole way through the discussion.

The appeal decision includes a very much more fulsome description of the situation Thomas was in, including the nature of the inducements made to him and the AFP’s acquiescence in them. I must say, having read that fuller description, I find it hard to see how Cummins J could accept Thomas’s will was not overborne.

On the breach of s23G, I thought Cummins J was on reasonable ground, because the AFP had no opportunity for a later interview. However, as I pointed out in my comment on this thread, the appeal court decision shows that that the AFP had every reason to believe they would soon have access to Thomas in Australia. Had I known then what I know now, I could not have held the same position.

The Court of Appeal put another strong argument against Cummins J, at [109]-[112]:

It is expressly provided by s.3A of the Crimes Act 1914 that the Act has extra-territorial operation. Accordingly, these protections appy to Commonwealth investigations conducted anywhere in the world. … [T]he position of the applicant as a Pakistani prisoner afforded the opportunity for intelligence-gathering, but it rendered the collection of admissible evidence impossible. That is where the matter should have ended. Any other conclusion would seriously undermine the extra-territorial operation of a provision such as s.23G, if not negate it altogether.

This is a very powerful argument which did not occur to me, and which, if it was raised in the other thread, I unfortunately missed.

So, in a nutshell — yes, I was wrong, but I was up front about taking my position based on sparse information, and I’m happy to admit I was wrong now that further and better information is available.

Clearly on the results, part 1C [incl. s.23G] was subverted, and the officers took advantage of the circumstances of prohibited legal representation in saying “this right will not be available to you today,� which was deceptive by omission in that it was never available. Cummins J. also held that the officers “acted, reasonably honestly and fairly in all the circumstances� but this was a tautological justification at best.

As their Honours said in the link (appeal) provided by Robert:

109 In our view, it would be contrary to public policy for this Court to condone what was a knowing non-compliance with the legal protection afforded by Australian law. It is expressly provided by s. 3A of the Crimes Act 1914 that the Act has extra-territorial operation. Accordingly, these protections apply to Commonwealth investigations conducted anywhere in the world.
110 The investigating officials had, we accept, acted in good faith in requesting of the Pakistani authorities that they allow the applicant access to a legal practitioner. The outright refusal of that request meant that s.23G could not be complied with. The notion of deferment [for "a reasonable time" has no meaning when the suspect has been prohibited from making any "attempt to contact a legal practitioner", of the kind contemplated by the section.
111 In our view, there was only one course properly open to the investigating officials in the light of the position taken by the Pakistani authorities. It was to acknowledge that no formal record of interview could be conducted so long as the applicant was in Pakistan since, as the investigating officials appreciated, any such interview would be unlawful, that is, would be contrary to Australian law.

On the torture issue I said
http://larvatusprodeo.net/2006/07/25/judge-should-please-explain/#comment-117740

The torture issue is another one again, which not having read all the transcripts or being aware of all the facts I would reserve a final opinion, but it seems to me if that was part of the voir dire, and torture evidence was unreasonably excluded by Cummins J, that could be the ultimate issue of a successful appeal. [It was ie. not voluntary] If torture (or a constructive cumulative torture in Thomas’ case) is accepted as fact, it would effectively mandate exclusion of the evidence.

What I didn’t know was the circumstances of what turned out to be a “constructive cumulative” coercion.

So, the grounds for the appeal were successfully accepted, namely
ground 1: Admissions not voluntarily made
ground 2: Even if voluntary, the discretion was exercised wrongly and contrary to public policy.

[ How did you make out Robert? ]

The rule of law and its attendant principles is such an important foundation of our democratic society that we are supposedly intent on safeguarding, that only someone with zero understanding of these principles would even contemplate their removal.

Anyway, the decision has now been published: R v Thomas [2006] VSCA 165 (rtf). Maybe now we can discuss what actually was decided, rather than some second- or third-hand speculation?

I’d like to highlight the fact that the AFP knew all along that they were going to face admissability problems. AFP Officer Williams, one of the officers who conducted the disputed interview, acknowledged in a case note prepared the next day that there were “obvious admissibility issues attached to this interview” (at [41]of the judgment). The day after that, AFP Officer Pike (attached to the Australian High Commission in Pakistan) wrote to the Pakistani authorities to complain about their inflexibility (at [42]):

Due to these conditions, in addition to other factors, the admissibility of that ROI [record of interview] in Australian Courts has been seriously compromised.

I highlight this merely to illustrate that this is not an example of “judicial activism”, in which the Court has bent the law to favour the accused. Rather, it is an example of the Court upholding longstanding legal safeguards against the arbitrary exercise of power — safeguards of which the AFP were well aware at the time of the interview, and to which they tried (unsuccessfully, as it turns out) to adhere.

Of course, they could have avoided these “obvious admissibility issues” if they’d waited until Thomas was back in Australia before they interviewed him. The Court of Appeal is convincing on this point (at 46]):

Our attention was drawn to documentary records of communications which took place before 8 March 2003 [the date of the disputed interview]. These records show that Australian officials had reason to believe, before the AFP interview took place, that the Pakistani authorities were keen for Australian authorities to take Thomas off their hands and have him returned to Australia.

The Australian High Commission’s Mr Adams reported a fortnight before the interview that (at [47]):

They do not appear all that interested in charging him, but rather handing him over to Australia so that we can maximise the drama of punishing home-grown terrorists.

“The defence would have had to have proved this beyond reasonable doubt.”

Maybe in Wonderland, Alice, but not under our Anglo-Saxon system of justice.

And what Rob said.

Nonetheless, in spite of Rog’s bravado, the threat of totrure would make most of us shit our pants. The courts got it right, end of story.