At melbourne court of appeal joseph terrence thomas




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IN THE SUPREME COURT OF VICTORIA

AT MELBOURNE

COURT OF APPEAL


JOSEPH TERRENCE THOMAS

Applicant



v
THE QUEEN

Respondent



AFFIDAVIT OF PHILIP ALAN LYNCH
Date of document: 3 July 2006

Filed on behalf of: Human Rights Law Resource Centre Ltd.


Prepared by:

Blake Dawson Waldron Solicitors’ Code: 53

Lawyers DX: 187

Level 39, 101 Collins Street Tel: 9679 3000

Melbourne Vic 3000 Ref: SPA:BFM:03 1401 1856



I, PHILIP ALAN LYNCH of Level 1, 550 Lonsdale Street, Melbourne, Victoria 3000, solicitor, do solemnly and sincerely affirm:


  1. I am the director and principal solicitor of the Human Rights Law Resource Centre Ltd (ACN 117 719 267), (the “HRLRC”) and I am authorised to make this affidavit on behalf of the HRLRC.




  1. I make this affidavit in support of the application of the HRLRC to be granted leave to appear as amicus curiae in the application of Joseph Terrence Thomas (the “applicant”) for leave to appeal against his conviction and sentence.


Human Rights Law Resource Centre Ltd

  1. The HRLRC is a company limited by guarantee which was registered under the Corporations Act 2001 (Cth) on 3 January 2006.




  1. The formation of HRLRC was an initiative of the Public Interest Law Clearing House (Vic) Inc (“PILCH”) and the Victorian Council for Civil Liberties Inc (“Liberty Victoria”). PILCH and Liberty Victoria were the founding members of the HRLRC and they remain its only members.




  1. PILCH is an incorporated association formed in 1994 to encourage and coordinate legal services for the public good. Its membership currently comprises 28 private law firms, 4 corporate legal departments, 20 community legal centres, 4 university law schools, the Law Institute of Victoria and the Victorian Bar Inc.




  1. I am informed by Jamie Gardiner, Vice President of Liberty Victoria, and believe, that Liberty Victoria was incorporated in 1984, but existed as an unincorporated association under various names prior to that date, tracing its history back to 1936. According to the statement of purposes in its constitution, the objects of Liberty Victoria are to advance measures and take steps necessary for the defence and extension of civil liberties in Victoria and the rights and freedoms recognised by national or international law. I am informed by Jamie Gardiner and believe that Liberty Victoria has been involved in the promotion of civil liberties and human rights for approximately 70 years.




  1. Now produced and shown to me and marked “PAL-1” is the constitution of the HRLRC. Pursuant to rule 2(a) of the constitution the objects of the HRLRC are to:

    1. promote, protect and contribute to the fulfilment of human rights in Australia, particularly the human rights of people who are disadvantaged or living in poverty including (amongst others) those human rights contained in:

      1. the International Covenant on Civil and Political Rights;

      2. the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment;

      3. the International Covenant on Economic, Social and Cultural Rights; and

      4. customary international law;

    2. contribute to the harmonisation of law, policy and practice in Australia with regard to human rights;

    3. empower people that are disadvantaged or living in poverty by operating within a human rights framework.




  1. Under rule 3 of its constitution, the HRLRC may, for the purpose of carrying out its objects, provide legal services and act as amicus curiae.




  1. Rule 17 of the HRLRC’s constitution provides for the establishment of an advisory committee. The board of the HRLRC has determined that the functions of the advisory committee include:

    1. providing assistance and advice, and making recommendations, to the HRLRC board; and

    2. undertaking and reporting on consultations with communities and constituents relevant to the work of HRLRC.




  1. The advisory committee comprises representatives from human rights organisations, community legal centres, community organisations, university law schools, private law firms and legal professional associations.




  1. With the assistance and advice of the advisory committee, the HRLRC has identified a number of priorities for its work. These priorities include the rights, freedoms, condition and treatment of persons in detention.




  1. Work which has been recently undertaken or is currently being undertaken by the HRLRC includes:

    1. preparing a submission to the Senate Finance and Public Administration Legislation Committee Inquiry into the Provisions of the Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Bill 2005 in relation to prisoners and the right to vote;

    2. examining the feasibility of a constitutional challenge, and of a communication to the Human Rights Committee established under the International Covenant on Civil and Political Rights, in respect of restrictions on the right to vote of prisoners;

    3. examining causes of action in relation to a denial to prisoners of the right to education;

    4. research and advocacy in relation to the establishment of effective monitoring, accountability and complaints mechanisms for people with psychiatric and other disabilities.




  1. The HRLRC receives funding from a range of corporate and philanthropic donors, including the National Australia Bank, a number of commercial law firms, the Law Institute of Victoria, the Victorian Bar, the Victoria Law Foundation, the Helen Macpherson Smith Trust and the R E Ross Trust. The HRLRC does not currently receive any government funding, although the Victorian Government announced on 30 May 2006 that the 2006/07 State Budget initiatives associated with human rights and the proposed Charter of Human Rights and Responsibilities included funding for the HRLRC ‘to assist advocacy work in relation to disadvantaged Victorians’.


Leave to appear as amicus curiae

  1. The grounds of appeal of Joseph Terrence Thomas against conviction include that:

    1. the learned trial judge erred by holding that evidence of the record of interview between the Australian Federal Police and the applicant, conducted in Pakistan on 8 March 2003, was voluntary and therefore admissible; and

    2. even if the record of interview was voluntary, the learned trial judge erred in not exercising his discretion to exclude the interview on the grounds of public policy and/or fairness.




  1. It is the view of the HRLRC that international human rights law relating to:

    1. torture and other cruel, inhuman or degrading treatment or punishment;

    2. arbitrary detention; and

    3. the right to legal representation,

is relevant to the exercise of a discretion to exclude the applicant’s record of interview on the grounds of fairness or public policy and may also be relevant to an assessment under the common law of whether the applicant’s statements during the interview were admissible.


  1. The grounds of appeal against sentence include the following:

    1. insufficient weight was given to the circumstances and difficulties the applicant would suffer in the course of serving his sentence; and

    2. the sentencing discretion should be re-exercised on the basis of additional evidence of the deterioration of the mental state of the applicant since the passing of sentence which allows the effects of incarceration upon the applicant to be better understood.




  1. It is the view of the HRLRC that international human rights law relating to:

    1. the right to be treated with humanity and with respect for the inherent dignity of the human person;

    2. the right to health (including mental health) and the provision of adequate medical care (including mental health care); and

    3. the principle that persons deprived of their liberty not be subjected to hardship or constraint other than that resulting from the deprivation of liberty,

is relevant to the exercise of the sentencing discretion in respect of the applicant in light of his mental health and conditions of incarceration.


  1. If granted leave to appear as amicus curiae the HRLRC would seek to make written submissions to the Court and, where appropriate, to supplement the written submissions by oral submissions. Now produced and shown to me and marked “PAL-2” is a summary outline of the written submissions which the HRLRC would propose to make.




  1. The purpose of the HRLRC in making the submissions would be to assist the Court by drawing its attention to aspects of international human rights law which, it is submitted, are relevant to the decisions to be made by the Court on the application of Joseph Terrence Thomas and any appeal. By virtue of its work in the field of human rights law, and the work in that field of its members and the members of its advisory committee, I respectfully submit that the HRLRC has the necessary expertise and knowledge to offer assistance to the Court within the scope of the matters set out in exhibit “PAL-2” to my affidavit.




  1. At this stage the HRLRC and its legal representatives have been limited to reading the initial reasons given by the learned trial judge for the ruling made by his Honour on 7 November 2005 that the record of the interview of the applicant on 8 March 2003 was admissible in evidence at the applicant’s trial. The HRLRC would be better able to assist the Court if its submissions were informed by the revised reasons of the learned trial judge for the ruling made by his Honour on 7 November 2005. Accordingly, the HRLRC seeks access, upon such terms as the Court thinks just, to the revised reasons. It is authorised to give such undertakings as the Court sees fit.




Affirmed by PHILIP ALAN LYNCH at Melbourne in the State of Victoria this Third day of July 2006 before me:
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