Author: Christopher Craigie SC, Date: 12/11/2009 Venue: Heads of Prosecutions Agencies of the Commonwealth (HOPAC) conference
It is well known that a prime strategy of many terrorist movements is to fray the fabric of a democratic society by provoking state responses that compromise or degrade the rule of law and public confidence in the effectiveness of established criminal justice mechanisms for dealing with crime. This paper seeks to outline a particular approach rejects the terrorist strategy by seeking to ensure that a prosecution process maintains and employs the status of independence as a potent means of dealing with what is no more and no less than a species of very grave crime. The purpose of this presentation is to provide a brief overview of how we have responded over a relatively brief period to the particular challenges of terrorism prosecutions. We have sought to do this in a manner that is consistent with the role of an independent prosecuting entity and I believe that our task in prosecuting is all the more effective because of our commitment to that status. I readily concede that the challenges and responses that I describe reflect some features that are in combinations unique to the Australian Commonwealth. We have also been blessed or burdened in starting with our own set of historical, legal and constitutional advantages and hurdles. With that caveat, you may nonetheless detect some themes that are relevant to your own experience. I trust that the paper raises some matters of common interest, even given subject matter that has some distinctly Australian peculiarities.
Prior to the events of September 11 2001 the Office of the Commonwealth DPP (CDPP) dealt mainly with matters of fraud on the Commonwealth (which is to say the federal government) and its agencies, Corporate offences and drug importation offences. Whilst there were national security and defence related Commonwealth offences on our statutes, history had been kind to us. Apart from some notable but widely separated incidents of political violence, in the main related to tensions between recently arrived immigrant groups was seldom any occasion to the existing Commonwealth provisions that had been enacted against the contingency of Australia being involved in war. In the day to day operations of the Office the offences constituting the gravest levels of criminality for which life sentences were provided as the statutory maximum were the large scale drug importation matters. Often associated with the latter in particular has been a long standing and well developed national Proceeds of Crime practice related to the seizure, freezing and forfeiture of proceeds. This has also proved important as prosecution of terrorist-related offences became a more prominent part of our work. Whilst we accepted briefs of evidence from approximately 40 different agencies, most notably the Australian Federal Police (AFP), our work did not in general deal with offences against the person. What one might classify as more traditional crimes, including such things as murder and other serious crimes of violence involving victims were the work of the state and territory Directors of Public Prosecutions. It was also our historical experience that, depending mainly on the targeted individual or place, a terrorist act or conspiracy to commit such an act might well be prosecuted by one of the state DPP Offices, quite possibly as a conspiracy to murder under the laws of a state or territory. This was the case for some of the small number but nonetheless alarming cases of terrorism or politically motivated crimes in much of our post war history. Of course, if the target was an embassy, a Commonwealth protected person such as a foreign head of state, or there was otherwise a sufficient connection to the Commonwealth and its functions, the prosecution would in those former times have been by the Commonwealth DPP or the then Commonwealth Crown Solicitor’s Office, prior to establishment of my Office’s in 1984. Cases that arise in our many core areas that pre-date 2001 remain a large and important part of our work but from the fateful date of September 11 2001 our practice as the national prosecuting office was transformed substantially, and not just in the area of terrorism. My Office now prosecutes a generally wider range of matters, that in addition to terrorism offences, extends to sexual servitude and slavery offences, trafficking in people, debt-bondage and smuggling offences to name a few. Notably they all involve direct victims. All of these types of prosecutions also raise markedly different issues for the CDPP as to how we can efficiently and effectively meet the expectations of the investigatory agencies and the community as a whole, whilst maintaining both the perception and reality of our independence from the political process. We have been required to develop new ways of thinking and reacting to issues in the context of the unchanging obligations of a prosecutor to assist the courts in ensuring that an accused obtains a fair trial. In approaching the particular challenges of prosecuting terrorist offences we have regarded strong adherence to the Prosecution Policy of the Commonwealth and to the traditional values of the Office as essential starting-points. However, we have been required to adapt and refine our procedures to deal with the new environment in which we found ourselves and which grew out of the history I outline below.
Recent Legislative History of Counter-Terrorism Offences in Australia
Following the events of 11 September 2001, the United Nations Security Council issued Resolution 1373. Resolution 1373 consolidated the United Nations Security Council’s previous comments on the need for stronger and more cooperative measures among member States to counter acts of terrorism. It decided that “all States shall … prevent and suppress the financing of terrorist acts [and shall] criminalize the wilful provision or collection … of [terrorist] funds by their nationals or in their territories”. It also required nation-states to ensure that terrorists, their accomplices and supporters are brought to justice and that “terrorist acts are established as serious criminal offences in domestic laws … and that the punishment duly reflects the seriousness of such terrorist acts” (Resolution 1373, para. 1(a), 1 (b) and 2 (e)). The resolution is formally binding on Australia under Chapter VII of the Charter of the United Nations. Australia responded by enacting a range of terrorism related offences in Part 5.3 of the Commonwealth’s Criminal Code Act 1995. The provisionswere drafted and enacted by the Commonwealth Parliament, initially coming into effect in July 2002. On the introduction of the counter-terrorism legislation the then Attorney-General, the Hon. Daryl Williams AM QC MP, in his second reading speech on the Security Legislation Amendment (Terrorism) Bill 2002 outlined the purpose of the legislation: “The [Bill] is part of a package of important counter-terrorism legislation designed to strengthen Australia’s counter-terrorism capabilities. Since 11 September there has been a profound shift in the international security environment. This has meant that Australia’s profile as a terrorist target has risen and our interests abroad face a higher level of terrorist threat… This package, and other measures taken by the Government, are designed to bolster our armoury in the war against terrorism and deliver on our commitment to enhance our ability to meet the challenges of the new terrorist environment.” House of Representatives Hansard, Second Reading Speech, Security Legislation Amendment (Terrorism) Bill 2002, 12 March 2002, p1040. The Criminal Code Amendment (Terrorism) Bill (Act no. 40, 2003) was introduced on 12 December 2002. This Act re-enacted Part 5.3 of the Criminal Code (which contained the federal terrorism offences enacted in June 2002, and later amended in October 2002) so that it would attract the support of State references of power in accordance with section 51(xxxvii) of the Commonwealth Constitution. There have been other amendments to this Part, including in the Anti-Terrorism Bill 2005 (Act no. 127, 2005) which clarified that it is not necessary to identify a particular terrorist act. In May 2003 further amendments were introduced supporting constitutional referrals of certain powers that it might have been argued were formerly vested in the parliaments of the states. This was done to remove any room for argument that all the measures came within the constitutional remit of the national parliament. Prior to the introduction of the counter-terrorism legislation it was acknowledgedthat there were gaps in Australia’s “systemic and legislative preparedness to prevent or respond to [terrorist attacks]” (Report of Australia to the Counter-Terrorism Committee of the United Nations Security Council pursuant to paragraph 6 of Security Council Resolution 1373 (2001) of 28 September 2001). The pre-existing legislation contained no specific anti-terrorism laws. Instead Australiarelied on various Commonwealth and State and Territory legislation creating offences that may be applicable to acts constituting what are commonly described as terrorism offences. The counter-terrorism legislation addressed certain ‘gaps’ in the existing legislative framework and focused on criminalising terrorist acts and attacking terrorist organisations and networks. The Commonwealth Parliament proceeded on a view that offences such as murder, kidnapping, assault occasioning grievous bodily harm, criminal damage, arson, conspiracy, treason and offence provisions dealing with unlawful associations may not be adequate to deal with certain terrorist activities. Specific counter-terrorism legislation was seen as necessary, particularly in relation to alleged conduct such as providing or receiving training from a terrorist organisation; directing the activities of a terrorist organisation; recruiting for a terrorist organisation; providing support to a terrorist organisation; and possessing things connected with a terrorist act. The counter-terrorism legislation enacted under Commonwealth law had the advantage of dealing with terrorism comprehensively and consistently rather than relying on a myriad of other laws that may apply. The laws concerning conspiracy, attempt, incitement and aiding and abetting can be problematic to prosecute in the context of some of the factual scenarios outlined above, in that many ancillary offences can only be proven if they attach to a specific primary offence. The nature of terrorism is such that individuals involved in terrorist activities or preparation for terrorist activities may not be aware of the specific details of the terrorist act that is being contemplated. An important distinction is that counter-terrorism offences are directed at establishing liability prior to the commission of a terrorist act, whereas traditional substantive offences generally relate to acts that have already been completed.
Counter-Terrorism Offences in Part 5.3 of the Criminal Code
Part 5.3 provides a range of offences addressing terrorism activity. These include offences relating to terrorism in Division 101 of Part 5.3, namely offences relating to:
- engaging in a terrorist act;
- providing or receiving training from a terrorist organisation;
- directing a terrorist organisation;
- possessing things connected with a terrorist act;
- collecting or making documents likely to facilitate a terrorist act; and
- acts done in preparation for, or planning, a terrorist act.
Division 102 concerns terrorist organisations with offences relating to:
- directing the activities of a terrorist organisation;
- membership of a terrorist organisation;
- training a terrorist organisation or receiving training from a terrorist organisation;
- getting funds to, from or for a terrorist organisation;
- providing support to a terrorist organisation; and
- associating with a terrorist organisation.
Division 103 concerns financing terrorism with offences relating to financing terrorism and financing a terrorist. The provisions of the new legislation seek to attach criminal liability to certain action at an early time. As the New South Wales Chief Justice Spigelman CJ said in the case of Lodhi v R  NSWCCA 121 at ;
Preparatory acts are not often made into criminal offences. The particular nature of terrorism has resulted in a special, and in many ways unique, legislative regime. It was, in my opinion, the clear intention of Parliament to create offences where an offender has not decided precisely what he or she intends to do. A policy judgment has been made that the prevention of terrorism requires criminal responsibility to arise at an earlier stage than is usually the case for other kinds of criminal conduct, e.g. well before an agreement has been reached for a conspiracy charge. The courts must respect that legislative policy.
There have been numerous reviews of the legislation and work is still ongoing to refine and shape the legislation to meet the situations that we face as a community. In July this year the current Federal Attorney-General the Hon. Robert McClelland released a discussion paper that drew together many of the recommendations contained in those reviews with the aim of ensuring that the focus of Australia’s national security and counter terrorism laws remains on preventing a terrorist act from occurring in the first place – not just waiting to punish those who would commit these heinous crimes after they occur.
The Prosecution Policy of the Commonwealth
The functions and role of the CDPP are reflected in the Prosecution Policy of the Commonwealth. This is a public document, available on our website and is fundamental to the work of the CDPP. The Prosecution Policy of the Commonwealth sets out guidelines for making decisions in the prosecution process. An important purpose of the Prosecution Policy is to promote consistency in the making of the various decisions which arise in the institution and conduct of prosecutions. This assists CDPP lawyers to make the sound decisions on the basis of careful judgement and the sensible exercise of discretion. The Prosecution Policy of the Commonwealth also serves to inform the public of the principles upon which the Office performs its statutory functions. In addressing the criteria governing the decision to prosecute, the Prosecution Policy of the Commonwealth commences by recognising that not all suspected criminal offences must automatically be the subject of prosecution. In every case great care must be taken in the interests of any victim, the suspected offender and the community at large to ensure that the right decision is made. The Policy recognises that a wrong decision to prosecute, or conversely a wrong decision not to prosecute, can both tend to undermine the confidence of the community in the criminal justice system. The initial consideration in the exercise of this discretion is whether the evidence is sufficient to justify the institution or continuation of a prosecution. A prosecution should not be instituted or continued unless there is admissible, substantial and reliable evidence that a criminal offence known to the law has been committed by the alleged offender. When deciding this, the existence of a bare prima facie case is not enough. The prospects of conviction must be considered and a prosecution should not proceed if there is no reasonable prospect of a conviction being secured (paragraph 2.5 of the Prosecution Policy). This requires an evaluation of how strong the case is likely to be when presented in court. It must take into account such matters as the availability, competence and credibility of witnesses and their likely impression on the arbiter of fact, and the admissibility of any alleged confession or other evidence. The prosecutor should also have regard to any lines of defence which are plainly open to, or have been indicated by, the alleged offender and any other factors which in the view of the prosecutor could affect the likelihood or otherwise of a conviction. The Prosecution Policy of the Commonwealth states that this assessment may be a difficult one to make, however application of this test dispassionately, after due deliberation by a person experienced in weighing the available evidence, is the best way of seeking to avoid the risk of prosecuting an innocent person and the useless expenditure of public funds. The Prosecution Policy provides (in paragraph 2.7 of the Prosecution Policy) that when evaluating the evidence regard should be had to a number of listed matters, but states that this list is not exhaustive and that the matters to be considered will depend on the circumstances of each individual case, and that, particularly in borderline cases, the prosecutor must be prepared to look beneath the surface of the statements. Having satisfied himself or herself that the evidence is sufficient to justify the institution or continuation of a prosecution, the prosecutor must then consider whether, in the light of the provable facts and the whole of the surrounding circumstances, the public interest requires a prosecution to be pursued (in paragraph 2.8 of the Prosecution Policy). A decision whether or not to prosecute must clearly not be influenced by:
- the race, religion, sex, national origin or political associations, activities or beliefs of the alleged offender or any other person involved;
- personal feelings concerning the alleged offender or the victim;
- possible political advantage or disadvantage to the Government or any political group or party; or
- the possible effect of the decision on the personal or professional circumstances of those responsible for the prosecution decision.
The Prosecution Policy of the Commonwealth states that the decision to initiate investigative action in relation to possible or alleged criminal conduct ordinarily rests with the department responsible for administering the relevant legislation and that the CDPP is not usually involved in such decisions, although it may be called upon to provide legal advice or policy guidance (paragraph 3.2 of the Prosecution Policy). The CDPP may be consulted where, for example, there is doubt whether the alleged misconduct constitutes a breach of Commonwealth law. Generally speaking, the CDPP is not involved in investigations although from time to time it may be called upon to provide legal advice or policy guidance during the investigation stage. The CDPP has a long history of providing legal advice at the investigative stage, dating as far back as its early prosecutions arising from ‘bottom of the harbour’ tax frauds that were so significant in the establishment of the Office. The CDPP regularly provides this assistance to investigative agencies, particularly in major matters and where investigations involve new criminal offences. Pursuant to Regulation 3(f) of the Director of Public Prosecutions Regulations, the Director has a function to give, to an authority of the Commonwealth, legal advice on law enforcement or a matter relating to law enforcement, whether or not the advice is for the purposes of a particular investigation. Pursuant to the DPP Act the CDPP also has the function to do anything incidental or conducive to the performance of any of the CDPP’s other functions. If as a result of the investigation an offence appears to have been committed the Prosecution Policy of the Commonwealth states that the established practice is for a brief of evidence to be forwarded to the CDPP where it will be examined to determine whether a prosecution should be instituted and, if so, on what charges. Although an AFP or other Commonwealth officer has authority to make the initial decision to prosecute, the Director has the responsibility under the DPP Act to determine whether a prosecution, once commenced, should proceed. It is generally desirable wherever practical that matters be referred to the CDPP prior to the institution of a prosecution (paragraph 3.4 of the Prosecution Policy). As indicated above we have maintained our adherence to the Prosecution Policy when approaching counter terrorism prosecutions. However, in light of the complexity of both the investigations and the legislation we have adopted a number of practices and policies to deal with these issues.
The Effective Prosecution of Counter-Terrorism Offences
Counter-Terrorism prosecutions are generally very complex and require specialist skills to deal with the legal issues involved and the large amounts of evidence. The CDPP’s experience has been that these prosecutions often involve numerous interlocutory appeals and challenges, including Constitutional challenges. In the current structure, established over five years ago and replacing much smaller scale arrangements that had been in place, the CDPP has designated specialist counter-terrorism prosecutors in each CDPP regional office and has established Counter-Terrorism Branches in the two larger regional Offices in Sydney and Melbourne and Head Office. These Branches are headed by Senior Executive Service Officers who are actively involved in providing advice to the AFP and in conducting prosecutions. The Branches are staffed by senior and very experienced prosecutors. The Branch in Head Office has oversight of the conduct of counter-terrorism prosecutions and is headed by a Deputy Director (Deputy-Director Counter-Terrorism). This Branch includes a Counter-Terrorism National Coordinator who receives weekly reports from CDPP regional offices and provides a consolidated weekly report to me as Director and to the First Deputy Director. The Office has found that the approach of having specialist senior prosecutors who are familiar with the specific evidentiary and procedural requirements of the state Supreme Courts, where in the main, these prosecutions are brought, in combination with Head Office oversight and co-ordination, has proven successful. Important decisions and advice on all counter-terrorism matters are settled at the highest level in the CDPP. The primary responsibility for investigating terrorism-related offences rests with the Australian Federal Police in conjunction with the state and territory police forces. The AFP refers briefs of evidence relating to terrorism related offences to the CDPP for possible prosecution. The CDPP is available to provide legal advice to investigative agencies prior to formally receiving a matter and in our view this is desirable in large, complex or sensitive matters. On occasion urgent advice is required and this is provided. This involvement is typical in the counter-terrorism area. Depending on the speed at which an investigation progresses, there is early and extensive liaison between the AFP and the CDPP in relation to terrorism related investigations which reflects the CDPP and AFP’s arrangements for the CDPP to be involved at an early stage prior to charges being laid by the AFP. Advice is often provided as an investigation develops with CDPP Head and Regional Office representatives attending operational meetings at a senior level. There are many benefits from this early involvement in the course of an ongoing investigation, including being able to advise on the elements of offences and identify evidentiary deficiencies. This usually occurs well prior to any charges being laid. Investigations in terrorism related matters may be long and complicated and the evidentiary material gathered is voluminous and complex and often overseas. There are frequent liaison meetings between the CDPP and investigating agencies to discuss specific issues relating to a particular case and more general issues. In the usual course it will be desirable for the CDPP to become involved in a counter-terrorism matter once the criminal investigation has commenced and when there is a real prospect that the matter under investigation will be referred to the CDPP for prosecution or consideration of prosecution. For example, in one major counter-terrorism operation, the CDPP provided advice in accordance with the Prosecution Policy of the Commonwealth at different stages during the investigation in relation to whether there were reasonable prospects of conviction resulting in arrests ultimately being made when sufficient evidence became available. This included obtaining advice from security cleared senior counsel and being referred to the Director for final decisions. In another major operation, the CDPP did not have sufficient material to provide advice in relation to reasonable prospects of conviction at the time of arrest. However in both this and the other major counter-terrorism matter, senior CDPP officers were in attendance at investigative meetings to provide on-the-spot legal advice as the matter progressed to the resolution phase. Both arrangements worked well and this demonstrates the need for flexible arrangements depending on the circumstances of the particular matter. In these matters the police made the operational decisions including the decision to arrest. Arrangements are in place in each region for applications for warrants for counter-terrorism offences (such as s3E Crimes Act 1914 warrants and Telecommunications (Interception and Access) Act 1979 and Surveillance Devices Act 2004 warrants) to be referred in draft to the CDPP prior to the relevant application being made. While the conduct of the investigation is a matter for the investigative agency, the CDPP is available to provide advice to the AFP on discrete legal issues when they arise in the course of an investigation. The CDPP provides considerable assistance in relation to these applications and detailed comments are provided on the offences identified within the material and evidentiary issues that are raised. The level of assistance for all types of warrants also results in general enquiries by police, and advice being given on similar or related issues. I should note the importance that telephone-intercept and listening device evidence plays in many of our large CT prosecutions. The product of intercepts under warrants is admissible in Australian courts. We have used such material for many years, most significantly in major drug importation cases and to great effect. Our state and territory counterparts are also very experienced in their value at trial. Similarly in CT prosecutions it can and has provided extremely persuasive evidence of the guilt of the alleged offenders and in our two most recent multi accused trials in Victoria and New South Wales, such evidence was the essential core of the Crown case. The existing methodology and techniques for obtaining and utilising such evidence have been utilised to shape the investigations and subsequent prosecutions in these matters albeit with adaptations to take account of the different ways alleged terrorists communicate utilising the available technologies. One of the real challenges for both investigators and prosecutors in this respect is the requirement for resources to intercept, listen to, analyse, translate and transcribe intercept product. Where large investigations carry on for 6 or more months involving numerous phones, computers and premises the gathering, distilling and processing of such information can place a great burden on the investigating and intelligence agencies who are monitoring the conduct. By way of example of the challenge this also creates for the prosecuting team, I refer to the recent terrorist conspiracy trials in the states of Victoria and New South Wales: The Victorian trial concluded in September 2008 involved 70 days of pre-trial hearing, prior to some 8 months of jury hearing. The jury found seven offenders guilty, acquitted four and could not agree in respect of one offender who pleaded guilty to a related charge and was sentenced with the others to a significant term. Two other offenders had entered guilty pleas before the trial, that fact having been suppressed during the trial. During the trial 482 phone calls were played to the jury. This was after a distillation of over 1000 potentially admissible calls that in turn represented but a small fraction of what had been gathered by investigators. The New South Wales trial concluded in October 2009 with guilty verdicts against all five of the offenders who went to trial and after 8 months of pre-trial hearing and 11 months before the jury. A further four offenders had pleaded guilty before or during the course of the trial’s jury phase. The prosecution process in this trial required a pre-trial distillation of some 30,000 calls in the police brief (of a total 127,000 recorded, down to the 448 calls played to the jury. As one may readily imagine, effectively marshalling this material as coherent, powerful and admissible evidence requires great effort and cooperation. It can also create an enormous disclosure issues for the prosecutor and those agencies in the event charges are laid, often involving considerations of national security and public interest immunity claims. Through early involvement with the investigating police and the security agencies we are able to anticipate and plan for the resolution of these issues. When the AFP has provided the CDPP with proposed evidence in an appropriate form and there is time to consider that material, the CDPP is available to provide advice to the AFP as to the sufficiency of that evidence, the reasonable prospects of securing a conviction and the public policy considerations of pursuing a prosecution in accordance with the Prosecution Policy of the Commonwealth. In this process the CDPP is reliant upon the content, form and timing of the information provided by the AFP. If the CDPP does not have sufficient evidence to provide advice in accordance with the Prosecution Policy of the Commonwealth then the decision whether to proceed or not is an operational matter for the investigating agency. The decision to arrest is an operational decision and so one for the investigative officer concerned rather than for the CDPP. At law, the decision is made upon the personal belief of a constable. Section 3W of the Crimes Act 1914 provides that: “a constable may, without warrant, arrest a person for an offence if the constable believes on reasonable grounds that: (a) the person has committed or is committing the offence; and (b) proceedings by summons against the person would not achieve one or more of the” specified purposes in the section including “(i) ensuring the appearance of the person before a court in respect of the offence”. There are liaison meetings with police and other agencies which deal with relevant issues during the life of matters and prospective matters are discussed. There is also national liaison between the CDPP, the AFP and other agencies. At stages of particularly crucial decisions, the Director has consulted with the AFP Commissioner and the ASIO Director-General. In the CDPP’s view these arrangements have been successful, and there have consistently been good working relationships with all relevant agencies.
Other Assistance to Agencies
The CDPP has also put in place several initiatives to better communicate with and assist investigative agencies. The CDPP has added a new Information Service to its Client Agencies website to update them on criminal law issues. This covers Commonwealth criminal cases, new legislation, and recently published books, articles, conference papers and Government reports. This is in addition to the CDPP’s online manuals for search warrants and electronic surveillance warrants. Another recent initiative is that the CDPP is now providing offence element breakdowns and draft charges on its Client Agencies website. This is an important development to enable investigators to readily identify the physical and fault elements that must be proven in order to establish an offence and to assist in charges being formulated.
The CDPP is implementing a new electronic document management, litigation support and court presentation system. This will be available as a common tool for investigative agencies and the CDPP to collate and analyse material. The system has powerful search facilities and will improve the CDPP’s capacity to present evidence to courts electronically. It will facilitate the electronic referral of briefs to the CDPP and enable this to be done more efficiently.
Specific Arrangements with the AFP and Intelligence Agencies
In relation to the CDPP’s relationships with other Commonwealth agencies, the CDPP participated in the Review of Interoperability between the AFP and its National Security Partners chaired by the Honourable Sir Laurence Street AC KCMG QC. This Committee was established by the Commissioner of the AFP following the case of Ul-Haque where Adams J severely criticised the actions of ASIO and the AFP in relation to the interviews they conducted with the defendant. The Committee stated that they were heartened by the strength of the shared commitment to ensuring the prevention of a terrorist incident in Australia and the shared understanding that successful prosecutions under Australia’s anti- terrorism laws was a central element in that overall strategy. The Committee noted a number of areas where improved structures, processes and systems were required.
The Committee recommended that the AFP Commissioner, the Director-General of Security and the Commonwealth Director of Public Prosecutions constitute a committee to ensure issues relevant to national security, strategic priorities and enhanced interoperability are reviewed and resolved on a regular basis. That Committee meets on a 3 monthly basis and has proved a useful and effective forum for the exchange of views. The Committee also recommended that the role of the CDPP, consistent with its functions and powers in providing advice and prosecuting counter-terrorism offences, where appropriate commencing from the operational planning stage of an actual or likely terrorism offence investigation, be formalised along the lines of the Counter-Terrorism Prosecution Guidelines and Checklist that was at the time being considered by ASIO, the AFP and the CDPP. Those guidelines are now in place and provide a template for communication and cooperation between the agencies in a counter terrorism investigation and prosecution. The Committee also recommended the development of a Joint Operations Protocol between the AFP and ASIO which has been developed with input from the CDPP.
The AFP, ASIO and the Office of the CDPP have also established a sub-committee to develop a joint training and relationship enhancement program.
The CDPP has been concerned to learn how its overseas counterparts operate in this area. For example, in 2007 the Head of the Counter-Terrorism Division of the Crown Prosecution Service in the UK visited at the CDPP’s invitation, and attended a series of meetings with the CDPP and other relevant agencies to share experiences in prosecuting in this challenging area. The CDPP has provided training in relation to the role of the CDPP and has also provided and will continue to provide specialist training and assistance on an ongoing basis to members of the AFP and ASIO on the laws which apply to the conduct of counter-terrorism prosecutions and mutual assistance. The CDPP has also provided and will continue to provide training on the requirements necessary to prepare briefs of evidence.
This approach has enabled the CDPP to have effective involvement in counter-terrorism investigations consistent with its responsibilities under the Prosecution Policy of the Commonwealth.
Of course things have not always gone as well as we would have liked. Most of you would have heard of the case involving Dr Mohammad Haneef who was arrested and charged with an offence of providing support to a terrorist organisation relating to the provision of a SIM card. What occurred in this case was not consistent with the approach I have set out above. In this matter the CDPP was not involved in providing legal advice until a late stage at which a decision to charge or not was urgently required and the advice given was not in accordance with the Prosecution Policy of the Commonwealth. The charging of Dr Haneef fell against the backdrop of terrorist activity occurring in the United Kingdom and an ongoing complex investigation in Australia and overseas. The alleged conduct occurred overseas and there was anticipation, and confidence, that further evidence from overseas would be obtained. There were pressures arising from the expiry of the period that Dr Haneef could be detained and Dr Haneef’s intention to leave Australia. Time critical decisions had to be made in circumstances of incomplete and changing information. The people involved in this matter had different perceptions in a number of areas. For example, the CDPP Brisbane Case Officer provided advice anticipating that further evidence would become available to establish the elements of the offence based on his perception that the investigators had confidence that this would occur. The AFP anticipated that further evidence would be available, but were also influenced by their perception that advice had been given with confidence that a charge could be established. A review of the sufficiency of the evidence in this matter was commenced immediately after the bail hearing on Saturday 14 July 2007. The evidence was assessed within the CDPP and by the former Director personally, who discontinued the prosecution on completing his review on 27 July 2007. The prompt action by the Director demonstrated the proper role and value of an independent prosecution service undertaking its work objectively and impartially on behalf of the Australian community. Throughout the Haneef matter, the CDPP and its officers acted independently from the political process and were not subject to any attempted influence. An independent inquiry into the Haneef matter was instituted by the Government, who appointed the Hon. John Clarke QC, a former New South Wales Supreme Court judge to undertake the task. Although the inquiry did not fall into the usual categories of either a royal commission or judicial inquiry and did not have the powers of either, the CDPP embraced the opportunity presented for our submissions to explain the essential structures independence of accountability that underpin our work. The Clarke report reflected an appreciation of this and of the fact that any errors in the Haneef matter were those of individual judgment, not of systemic failure. The overriding obligation of the CDPP is to ensure that no person is prosecuted for an alleged offence against Commonwealth law unless there is a reasonable prospect of the conviction of that person. This is the central plank of the Prosecution Policy of the Commonwealth and essential to upholding the principles of accountability that justifies the public trust that goes with independence and the power to prosecute in the name of the Australian Commonwealth.
There are currently 12 persons before the court at either the committal or trial stage charged with terrorism related offences.
In Sydney on 16 October 2009 the jury returned verdicts of guilty against 5 accused facing charges of conspiracy to do an act in preparation (or planning) for a terrorist act contrary to s11.5(1) and s101.6(1) of the Criminal Code. The maximum penalty for this offence is imprisonment for life. It was alleged these persons entered into an agreement to obtain the capacity to prepare or plan for a terrorist act (or acts) and pursuant to this agreement sourced chemicals and materials which could be used in the construction of an explosive device, possessed or attempted to possess firearms and ammunition, and possessed large amounts of ‘extremist’ and instructional material. Another 4 persons pleaded guilty to related charges and were sentenced to various terms of imprisonment. In this matter there were 8 months of pre trial arguments and the trial lasted over 11 months. The jury heard from over 300 witnesses, examined over 3,000 exhibits, watched 30 days of surveillance tapes and listened to 18 hours of telephone intercept material. The jury deliberated for 23 days. The matters are next before the court in December for sentencing.
In Melbourne, 12 persons faced trial in 2008 with respect to various offences. One accused was charged with directing the activities of a terrorist organisation contrary to s102.2 of the Criminal Code. A range of other offences were charged against several of the accused including membership of a terrorist organisation and providing support or resources. On 15 September 2008 the jury returned verdicts in respect of 10 of the men. Six were found guilty of being members of a terrorist organisation knowing it was a terrorist organisation (s102.3 (1) of the Criminal Code). Three were also found guilty of intentionally providing resources to a terrorist organisation (s102.7(1)) and three were also found guilty of attempting to make funds available to a terrorist organisation (s102.6(1) and s11.1). One was found guilty of possessing documents connected with preparation for a terrorist act (s101.4(1)) and the leader found guilty of intentionally directing the activities of a terrorist organisation (s102.2(1)). The jury acquitted four of the accused. The next day the jury returned a verdict on a further accused of guilty but was not able to reach a verdict on the 12th man. That accused later pleaded to 2 terrorism offences. All accused have been sentenced. The trial lasted 8 months, some 482 TI and LD conversations were played to the jury, 46 witnesses were called and 175 exhibits were tendered. To give you an idea of the size of the investigation some 97,791 conversations were intercepted from which 1,042 formed part of the brief before being prepared for the trial. The investigation gathered 17,000 computer files (some 57GB of data) and took 4,000 witness statements.
In Melbourne three other persons face trial on making assets available to a prescribed entity under the Charter of the UN Act 1945.
Also in Melbourne on 4 August 2009 a total of 5 people were arrested by police in Melbourne and subsequently charged with conspiracy to do an act in preparation for a terrorist act (s11.5(10 and s101.6(1)) and other terrorism related offences. These offences relate to an alleged plot to enter an army base and fire upon army personnel in a suicide raid. Four of the five did not contest their committed for trial on 26 October 2009. The remaining person’s contested committal will proceed in May 2010.
The CDPP has prosecuted several other matters in counter-terrorism or related areas. Faheem Khalid Lodhi was convicted on offences of doing an act in preparation for a terrorist act (s101.6(1) of the Criminal Code), collecting documents connected with preparation for a terrorist act (s101.5(1) of the Criminal Code), and possessing a document connected with preparation for a terrorist act (s101.4(1) of the Criminal Code). Lodhi was sentenced to imprisonment for 20 years with a non-parole period of 15 years. Lodhi was refused special leave to appeal by the High Court following his conviction and unsuccessful appeal to the Court of Criminal Appeal.
Bilal Khazaal was charged with making a document in connection with the engagement of a person in a terrorist act contrary to s101.5 of the Criminal Code and inciting another to commit a terrorist act contrary to s11.4 and s101.1 of the Criminal Code. Khazaal was convicted on the making the document charge and was sentenced to imprisonment. The CDPP discontinued the prosecution of Izhar Ul-Haque following the exclusion by the Trial Judge of records of interview.
The CDPP’s recent experience in terrorism prosecutions also includes the prosecution of Jack Roche, Zacky Mallah and Jack Thomas. Roche entered a plea of guilty part way through his trial for an offence of conspiring to commit an offence contrary to s8(3C)(a) of the Crimes (Internationally Protected Persons) Act 1976 and was sentenced in the District Court of Western Australia to nine years’ imprisonment with a non-parole period of four years and six months. Roche was charged with having conspired to intentionally damage the premises of the Israeli Embassy in Canberra, with the intention of endangering the lives of people by that destruction. At the time the conduct occurred the terrorism offences contained in Part 5.3 of the Criminal Code had not been enacted.
Mallah was the first person charged with doing an act in preparation for a terrorist attack (s101.6(1) of the Criminal Code). In March 2005 a jury acquitted Mallah of terrorism charges and Mallah pleaded guilty to a charge of threatening to kill Commonwealth officers and was sentenced to two years imprisonment. Thomas was charged with receiving funds from a terrorist organisation (s102.6), two counts of providing resources to a terrorist organisation (s102.7), and possessing a falsified Australian passport. Thomas was convicted by a jury on the charge he had received funds from a terrorist organisation and of the passport offence. The jury acquitted Thomas of the two other charges. The Victorian Court of Appeal quashed the convictions after ruling that the record of interview conducted with Thomas was not voluntary and thus not admissible against him. The Court of Appeal ordered a retrial based on public statements Thomas made to the media which came to light following the conclusion of the Supreme Court trial. Thomas was subsequently acquitted on the terrorism charge. At this stage, there are still comparatively few relevant decisions from appellate courts in relation to counter-terrorism offences. It should be noted that under our Constitution the trial of serious Commonwealth offences on indictment must be before a jury. At the Commonwealth level we cannot run these matters before a special tribunal or by judge alone. The CDPP is committed to reviewing its cases at their conclusion together with the investigative agencies, the security agency and counsel to consider whether any improvements in our performance can be had and to ensure that valuable knowledge and best practices are captured and recorded in the organisation.
There are systems in place to ensure that counter-terrorism cases are dealt with appropriately in the CDPP. The CDPP recognises the value of prosecutors playing a role in the investigative phase in providing legal advice. In addition to long standard general instructions there are now settled and explicit instructions for CDPP officers concerning the role of the CDPP and the procedures for consultation to be followed when providing advice to investigators. In both respects the independence of the CDPP’s functions adds value and assurance to the advice that supplements and assists the investigators’ task in directing resources towards a process optimising the prospects of a successful prosecution that will stand up to scrutiny, by the media, the public and by the appellate courts. The CDPP’s commitment is to provide an effective national criminal prosecution service that is fair and just and operates with integrity. It is fundamental to the CDPP’s work on behalf of the Australian community that prosecutions are commenced, conducted and continued when there is a sufficient evidentiary basis in accordance with the Prosecution Policy of the Commonwealth. In essence we point to our independence as a valuable weapon in the prosecution of all offences, not least of all those related to terrorism. Of course, it is not wise to present prosecutorial independence as a self-evident virtue. For all the virtue that it may have in the eyes of its practitioner adherents it is worth remembering its pragmatic attraction if it contributes to effectiveness in prosecuting, particularly in the vital area of counter-terrorism. The Australian experience is that perceived and real independence gives the investigating agency the benefit of clear eyed advice from the prosecutor’s view, whilst not trespassing on the investigator’s area of responsibility and knowledge as events unfold, sometimes at speed and with great complexity. A demonstrable reality of independence also affords the strong shield of integrity to prosecutions that could otherwise be diminished by allegations or media speculations of political influence or worse. There is often a complex political back-drop to terrorism trials, sometimes related to the ethnic identity of some accused persons if they happen to be from a minority group (which has not always been the case in Australia). In all such trials there is a national interest in maintaining strong community support the rule of law across all political and ethnic sectors. In an incidental but nonetheless important way, the fact that a prosecuting entity is independent and is generally accepted as being so contributes significantly to that process.