According to Tom Bathurst, recently appointed Chief Justice of NSW, judges should speak out more. Chief Justice Bathurst was reported yesterday as saying that judges should explain to the public the process of sentencing so as to improve confidence in the judiciary.

Good point. There has been considerable public disquiet recently – particularly in NSW and Victoria – about sentencing for serious crimes. However, the Chief Justice”s logic is also relevant to verdicts in criminal trials where defendants have their case resolved by a judge instead of a jury.

Take, for example, a case that is officially termed R v BUSB. Judgment was handed down by Judge Leonie Flannery in the NSW District Court on June 10, but the media were not given permission to refer to the case until late last week. Judge Flannery found that the accused was not guilty of attempting to murder or cause grievous bodily harm to police Sergeant Adam Wolsey.

The decision turned on the accused”s intention. On November 8, 2005, BUSB, who said he was sick, was confronted by four uniformed police officers who attempted to arrest him in Wilson Road, Green Valley. The police, who had arrived at the scene in a marked police car, told the accused that they wanted to speak with him.

The details of what took place were contested, which is not unusual in a case of this kind. But Judge Flannery found that BUSB had a pistol inside his trousers, which he withdrew and fired at least one shot, hitting Wolsey in the left hand. BUSB was subsequently shot by another police officer and disarmed.

In her judgment, Judge Flannery accepted that, on the day of the shooting, BUSB “had with him, as he walked down Wilson Road, two loaded guns in connection with the preparation for a terrorist act, knowing of that connection”.

However, the judge declared that she was “not satisfied” that BUSB put the pistol “in his pants because he was planning to shoot his arresting officers”. Rather, she found he did so “because he was concerned for his safety, and in the state he was in, brought about by his illness, his concern that he was going to be arrested, and the climate of anti-Muslim feeling in the community at the time, he believed that he might be harmed by police”.

Consequently, Judge Flannery found that there was “a reasonable possibility” that BUSB “did not deliberately shoot in the direction of Adam Wolsey, intending to hurt him”. She found him not guilty. Clearly, the judge accepted the defence”s case that the arrest took place “in relation to terrorism matters, and in an environment of anti-Muslim feeling, which engendered in the Muslim community a high sense of paranoia”.

Judge Flannery did not state how she came to the conclusion that, in 2005, there was a climate of anti-Muslim feeling in the community which would affect an individual”s reaction to a request by police to stop for questioning. Some of Australia”s most successful figures in business, sport and the professions, then as now, were Muslim. Moreover, there is no evidence that police have been tougher on individuals of Muslim faith than other believers or, indeed, non-believers. Certainly the judge referred to no such evidence in her judgment.

Then there is another consideration. If the alleged existence of anti-Muslim feeling in the community is relevant to the state of mind of an accused who shoots at police, what about those of other religions? Would a Jew be entitled to cite a climate of anti-Semitism in the community as affecting the intention of an act which he/she had committed with respect to police? What about a Hindu?

Judge Flannery”s decision was released on the eve of the 10th anniversary of al-Qaeda”s attacks on New York and Washington – what the Americans remember as 9/11. It coincided with a number of articles by civil libertarian lawyers and academics, railing against the national security legislation (which was introduced by the Howard government with Labor”s support) or declaring that the West was at least in part to blame for al-Qaeda”s attacks both before, on and after September 11, 2001. Lawyers Robert Stary and George Williams criticised the national security legislation, while Waleed Aly and Geoffrey Barker asserted that the US and its allies are at least partly responsible for al-Qaeda attacks.

In recent days, the Attorney-General Robert McClelland, the ASIO director general, David Irvine, and the head of the Australian Federal Police, Tony Negus, have all warned that domestic terrorism remains of concern within Australia. In such a climate, Judge Flannery”s decision in R v BUSB warrants full explanation and an open debate.

Gerard Henderson is executive director of The Sydney Institute.