It concerned the conviction in February 2006 of Joseph Thomas (nicknamed "Jihad Jack" in the media) on terrorism-related charges, specifically receiving funds from Al Qaeda.

[2] Initially he maintained a fabricated story, that he was a student who had been travelling in Pakistan, but he later revealed the truth, that he had been in contact with Al Qaeda in Afghanistan.

However, the representative did testify that while Thomas was on the phone to his parents in Australia, he told them "I'm not going to Cuba" (referring to the Guantanamo Bay detainment camp), to which a Pakistani official replied, "No, that's not correct.

On 8 March, Thomas was interviewed again by two members of the AFP, who had made special arrangements with the Pakistani Directorate for Inter-Services Intelligence (ISI) to have the interview conducted pursuant to Australian law, particularly the requirements of the federal Evidence Act 1995 and Crimes Act 1914, so that admissible evidence could be gathered.

In the statements, Thomas admitted that he had tampered with his passport to conceal the amount of time he had been in Pakistan, and also admitted that the money and airline ticket had been given to him by Tawfiq bin Attash, a high ranking Al Qaeda lieutenant involved with the 1998 United States embassy bombings and the USS Cole bombing.

[1] The trial judge also concluded that Thomas had been properly informed of his right to silence, and had not been induced by the AFP officers to participate in the interview by offer of repatriation or any other reward.

[1] Lex Lasry QC, on behalf of Thomas, argued that the trial judge had made several errors of law: Several other matters were also raised, relating to particular parts of the evidence (specifically, relating to the witness testimony of Yahya Goba, one of the Buffalo Six), but these matters had little bearing on the final outcome of the case, and were dealt with only briefly by the court.

The other main argument was an alternative argument, that if the court decided that the admissions were in fact voluntary, they should not have been admitted anyway on the basis that to do so would be unfair, because of factors including Thomas' lack of access to legal advice even where he had a right to obtain it, his vulnerability in the circumstances, and "the contamination of the record of interview by the previous joint team interrogations, and their potential or actual use as levers to remind the applicant of his earlier answers.

But it is also a definite rule of the common law that a confessional statement cannot be voluntary if it is preceded by an inducement held out by a person in authority and the inducement has not been removed before the statement is made..."[4] The court also noted a recent decision of its own, in which it had emphasised that the principles of evidence strike a balance between the rights of the individual and the rights of the state, and that: "On the one hand, there is an obvious need to bring to account those who have committed serious offences if the objectives of the criminal justice system are to be achieved and societal values vindicated, but, on the other, it cannot be forgotten that those values incorporate the rights of the individual and, in part define the nature of the relationship between the citizen and the community in which he or she resides.

"[6] The court concluded that the trial judge had erred in not exercising his discretion to bar the evidence from being admitted, although it was not necessary to decide the point.

Thomas' original convictions were quashed, however before the final orders were made the Commonwealth Director of Public Prosecutions sought to make a submission as to whether there should be a directed acquittal or whether there should be a retrial.

The court heard brief arguments, then set aside the issue for a further hearing, to be held after the parties had made written submissions.

[7] The prosecution sought to introduce as evidence statements Thomas made in an interview with the Australian Broadcasting Corporation for the Four Corners television program in February 2006.

All parties accepted that the relevant test to be applied was the test set out in the High Court case of DPP (Nauru) v Fowler, which sets out two preconditions for a retrial; the first requiring that the admissible evidence presented at trial be "sufficiently cogent" to support a conviction, the second requiring consideration of circumstances that would make it unjust to put the accused through a retrial.

[9] The court decided that it would be reasonably possible for a jury to convict Thomas based on the available evidence, so it then considered whether there were factors which would make a retrial unjust.

Justice Curtain ordered that Thomas be imprisoned for nine months but found he was free to go after taking into account time already served.

Conservative columnist Piers Akerman said that the decision "has handed al-Qaeda, Jemaah Islamiyah and all other terrorist organisations a major victory and confirmed the adage the law is an ass.

"[14] Akerman emphasised that information about Thomas (including the Four Corners interview[15]) was already available in the public domain for the populace to make its own judgment, despite "judicial commands to juries to ignore material [which] may have some minor relevance in their petty fiefdoms.

"[14] Conservative Melbourne lawyer Peter Faris QC called for an appeal to the High Court or changes to the laws of evidence legislation, saying that "this case is bad law", alternatively suggesting that Thomas be handed over to Pakistan, since he stated that the evidence from the interview would in his opinion be admissible in a Pakistani court.

[18] Faris argued that the apparent bias arose because of Maxwell's activities before his appointment to the Supreme Court of Victoria, including his membership of organisations including Amnesty International, his past presidency of Liberty Victoria, his past involvement with human rights law and advocacy against counter-terrorism laws.