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Becoming (Jihad) jacked off by our courts

By Mirko Bagaric - posted Friday, 25 August 2006

A farce. That’s how some families of terror victims described the decision by the Victorian Court of Appeal last week to release “Jihad” Jack Thomas, who was the first person to be convicted under the new Federal counter-terrorism laws.

The father of one of the Bali bombing victims, Mr Iliffe, said, “I know it was on technical grounds that Jihad Jack was released, but this undermines the basis, the whole foundation of the judicial system”. The father of another victim said the decision to release Thomas showed how “disconnected the judiciary was from reality”.

They are both right


The decision by the Court to overturn Thomas’ five-year prison term for receiving funds from al-Qaida and tampering with a passport because of an investigative irregularity constitutes a victory for bent rule worshiping over truth, pragmatism and the common good.

The case against Thomas collapsed when the Court held that the interview in which he admitted to shaking hands with Osama bin Laden and accepting funds from al-Qaida was inadmissible in evidence. The Court found that in making the confession (to the Australian Federal Police while being held in custody in Pakistan) Thomas’ will was overborne by inducements made to him by Pakistani authorities that were impliedly endorsed by the AFP.

What is the overwhelming public policy that justifies releasing into the community a person who has admitted to committing terrorism related offences (the prosecution submitted that Thomas made similar confessions on the ABC show Four Corners)?

Regrettably, there is no justification for the outcome. While the Court reached the correct decision on the basis of the law as it currently stands, the principle applied by the Court stems from the application of an outdated, misguided and ineffective legal fiction that over the years has cystallised into unshakeable legal dogma. The only people that seem to support the dogma are lawyers - steeped in the “anti-learnings” of the law. The community can’t quite get their head around the rule relating to the inadmissibility of tainted confessions for good reason, it is nonsensical.

A long standing rule of evidence is that confessions obtained from suspects as a result of threats or inducements are normally inadmissible. This is even if the reliability of the confession is not in question and the case would collapse without the confession. The result of this rule means that sometimes criminals, often serious ones, walk free. The sorts of threats and inducements that are required to activate this rule are normally not of any great magnitude. A representation by a police officer to a suspect that he will get a reduced penalty if he “fesses up” will normally do the trick.

There are two ideals which supposedly justify compromising the search for the truth and allowing serious criminals back into the community without getting their just deserts.


The first basis for excluding tainted confessions stems from a desire to not pollute the supposed purity of our system. Legal theory tells us that if such evidence is admissible it entails that the legal system and the community ultimately endorse the unfair tactics employed against suspects.

This misses the point that as a matter of logic and ethics, blame and wrongdoing aren’t like bad smells - they don’t contaminate everything in the vicinity.

There are far more effective ways to send a clear message that it is unacceptable to use inappropriate means to obtain confessions than rejecting them in evidence. The most effective and direct means of signaling this disapproval is by punishing the investigating agent who is responsible for the irregularity.

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About the Author

Mirko Bagaric, BA LLB(Hons) LLM PhD (Monash), is a Croatian born Australian based author and lawyer who writes on law and moral and political philosophy. He is dean of law at Swinburne University and author of Australian Human Rights Law.

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