Sensible judgment in terrorism case

I'm really excited about Justice Adams' judgment in the Ul-Haque case, delivered a week ago.

The essence of the judgment is that certain interviews of the defendant, conducted by ASIO and the Australian Federal Police, were inadmissible in the trial of the defendant under s 102.5(1) of the Commonwealth Criminal Code. (That section prohibits training with a terrorist organisation.) The DPP has abandoned the trial as a result of the decision.

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This case is interesting to me for a number of reasons. (1) It involves evidence law. (2) In particular, the DPP could have appealed from the decision of Adams J (or, of course, simply continued with the trial, but that's a bit silly when your case has collapsed) under s 5F(3A) of the Criminal Appeal Act 1912 (NSW). (3) The case also involves the interpretation of the commonwealth anti-terrorism legislation, which is interesting to me from a human rights perspective.

So, evidence first. Adams J basically applied the law: under s 84 of the Evidence Act 1995 (NSW), if an admission is made, and the court is convinced that it was made because of and influenced by oppressive conduct (among other alternatives), the admission cannot be used as evidence against the person who made it. (An admission, by the way, is a statement adverse to the interest of the person who makes it - that's defined in the Dictionary to the Act.)

The party who is trying to get the evidence excluded (ie Ul-Haque in this case) has to show that there was oppressive conduct, and if the court is satisfied of that, then the onus is on the other party (ie the DPP) to show that the admission wasn't influenced by the oppressive conduct. In this case, Ul-Haque jumped his hurdle, but the DPP was unable to jump theirs, and the evidence was excluded. If you have a look at the judgment (it's pretty long, but I recommend these paragraphs to get an idea of the strength of Adams J's comments: [44], [61]-[62], [73], [76]), you'll see that Adams J was in absolutely no doubt that (1) there was oppressive conduct and (2) it did influence the making of the admission.

So it's not particularly surprising that the DPP did not try to appeal the decision. In some ways, it's better to have such a scathing judgment kept to the lowest level possible - in this case, a single judge of the NSW Supreme Court, rather than the Court of Criminal Appeal or, even worse, the High Court of Australia. You don't bother to appeal if you think you're going to lose, especially when you don't want a precedent set at a higher level.

However, for me, it brings to mind a question that's been bouncing around my head for a while: to what extent is our evidence law influenced by the fact that the precedent-setting decisions - those made at the highest level - are a result of defendants who have been convicted bringing appeals against their conviction? I mean, if a judge or lower appeals court gets it wrong with respect to the admissibility of evidence, and a defendant is acquitted as a result, it's very, very rare for the Crown to be able to challenge that decision as to admissibility of evidence. Really, the way around it would be to appeal the decision before a verdict was reached, but that has all sorts of hairy practical implications, mostly to do with juries and bail and, you know, the facilitation of quick decisions generally being seen to be a good thing.

It's entirely possible that our evidence law would not be any different in substance if such appeals were more common. But it might be different in structure and in application.

Further, it seems to me that the main place this is likely to cause nasty issues (like: the DPP saying "we're not going to indict because we don't think we'll get XYZ evidence in" or "because the defendant IS likely to be able to get ABC evidence in) is in rape trials. In most other types of cases, the Crown is the party which adduces the huge majority of the evidence. Evidence adduced by a defendant is likely to be largely alibi-type evidence, or perhaps good character evidence, although it's hard to get that in except if the Crown has already attacked the defendant's character. But in rape cases, as we well know, the complainant is often on trial as much as the defendant is - arguably more, in practice - and the defendant will usually be attempting to adduce evidence which impugns the complainant's evidence in some way.

Even when this is done in a completely horrible manner - or when a judge makes a clearly wrong decision to admit certain evidence - it is rarely appealed by the Crown.

And this is the thing: we can introduce as much legislation as we like to try to prevent the wrong type of evidence being admitted in rape trials (eg sexual history, what she was wearing, etc etc), or to change the argument that is being made (eg getting rid of the "but I thought she was consenting because she didn't say anything when she was passed out on the bed!" defence), but none of that will help if judges don't apply it correctly.

One thing that would help with that would be judicial education. Another would be the possibility of a Crown appeal against a decision to admit evidence of the wrong type. Because if you were a judge, and you were facing a borderline (or even not-so-borderline) decision, and you knew that if you stepped one way, it could and might well be appealed, but if you stepped the other way, it could or would not be appealed, which way would you step?

I'm not saying, by the way, that judges make decisions about admissibility of evidence based only on the possibility of an appeal from their decision. But I don't doubt that it is almost always a factor in the minds of many judges. Nobody likes to be told they're wrong. Lawyers - and those who have become judges are usually a sort of hyper-lawyer in terms of personality - especially.

After that little rant, it almost seems anti-climactic to talk about human rights. But it is much more simple: essentially, many people were scared about this counter-terrorism legislation, these fairly draconian provisions inserted into the Commonwealth Criminal Code. Many people forgot to trust the judges that even if the provisions were nasty, judges are fairly protective of criminal procedure, especially when there will be serious consequences for a defendant if they are convicted. I think this case proves that we can trust judges to continue protecting criminal procedure and not be cowed by ASIO, the AFP and the government in general when it comes to trying cases under these provisions.

And that is a Very Good Thing.

[Not, by the way, that it makes the counter-terrorism provisions of the Criminal Code any less nasty or scary in themselves. Or any more justifiable. It just gives me a warm fuzzy feeling to see the checks and balances inherent in our system (because of the separation of the judiciary from the legislative and executive branches of government) actually working. Not so warm and fuzzily: it makes me wonder what the federal government - whoever gets in - will do, too. If there's another terrorist act in some place that causes another spike in counter-terrorism legislation, will the evidence laws be the next thing that gets changed?]