A Fair Trial for David Hicks? by Stephen Charles

The conclusion seems inescapable that the Australian Government was concerned that the evidence upon which the prosecution relied for a conviction of Mr Hicks would be rejected in a trial in Australia, and that he might in consequence be acquitted

Last week the Australian press published information contained in a statement allegedly written by one Feroz Abbasi while a prisoner in Guantanamo Bay, and which included a number of assertions as to statements supposedly made by David Hicks and what were said to be his intentions. It was also reported that Mr Abbasi had made a later signed statement entirely repudiating the first, and describing the allegations made against Mr Hicks as “ludicrous in their content (yet believed by dense investigators)”.

In an interview on ABC television’s 7.30 Report on 6 February last, the Attorney-General stated that it is possible that evidence obtained coercively (not from Mr Hicks himself but from others) could be used against him, the means involved being such as sleep deprivation, or questioning for up to 20 hours.

Some of these coercion techniques were graphically illustrated in the photographs published during the trial of members of the US military at the Abu Ghraib facility. A particularly repellent, but permitted, form of coercion is waterboarding, which involves the prisoner being repeatedly lowered, head first, into water until he is about to drown. The US military also does not regard torture as having taken place unless the act is “specifically intended to inflict severe physical or mental pain or suffering.”

One of the problems with the use of torture – apart from the objections of any civilized person to the procedures involved – is the extreme unreliability of the confessions obtained under torture. The press has in recent days heard much from the senior military prosecutor, Colonel Moe Davis. One wonders how long any of Colonel Davis’s military prosecutors would last under waterboarding before confessing to anything at all which they thought might end the torture.

The rules established by the Bush Administration for the conduct of military commissions permit them to accept statements extracted under coercion, and hearsay evidence. Colonel Davis last week said that prosecutors planned to use hearsay evidence against Mr Hicks. The commissions have a discretion to admit summaries of documents, and also to prevent the accused or his lawyers from being present, or even having access to evidence called by the prosecution in certain circumstances. It might also be remembered that in 2006, three members of the US military prosecutor’s office resigned in protest at the procedures proposed.

The statements of Mr Ruddock and Colonel Davis suggest that the first written statement made by Feroz Abbasi may be tendered in evidence by the prosecution without him being called as a witness. In an Australian criminal court, such a statement would be hearsay evidence and rejected. The rare occasions on which hearsay evidence may be admissible are not relevant in this context. The prosecution would be required to call Mr Abbasi to testify and he would be rigorously cross-examined as to the circumstances under which the statement was made and whether it was offered freely, under coercion, or in response to promises, say, of better treatment. Even if he verified the first statement, his later retraction would in any case seriously damage, if not destroy, any probative value in the former. Any “confessions” by David Hicks while in Guantanamo Bay tendered by the prosecution would almost inevitably be rejected for the same reasons as were given recently by the Victorian Court of Appeal in dealing with the confessions made by Jack Thomas under interrogation. Thomas’s later statements made on television stand, of course, in an entirely different category. But any prosecutor who tried in an Australian court to rely on evidence, knowing it had been obtained under coercion, would certainly leave the court with no reputation remaining for either fairness or competence.

From time to time the Government has been asked what offences Mr Hicks is said to have committed and why he could not be tried in Australia. The Government’s reply has been that he committed no offence under Australian law as it then stood, and the Prime Minister has said a number of times that the Government would not legislate retrospectively to cover the case, the impression given being either that the Government couldn’t pass such retrospective legislation, or that it would be in some way unfair to do so.

There is, however, no basis at all for any suggestion that the Australian Parliament cannot pass retrospective criminal legislation. In 1988 the Hawke Government passed amendments to the War Crimes Act for the purpose of enabling the prosecution of those claimed to have committed war crimes in Europe after 1 September 1939. The legislation was both extra-territorial and retrospective to the extent of nearly 50 years. The validity of the legislation was challenged in Polyukhovich’s case, but it was upheld by the High Court. The Government’s legal advisers would have been very well aware of the decision.

Nor is it likely that the Government seriously considered that it would be unfair to David Hicks to pass such legislation. After all, to do so would merely have meant that he was tried in an Australian court on precisely the same charges as those which he may now face in the military commission. In any case, fairness to him or the need for a fair trial were not part of the Government’s vocabulary in discussions of David Hicks’ case at any time in the first four years of his incarceration at Guantanamo Bay. The Government’s presently professed concern for him to have a fair trial seems only to have arisen in this election year.

For like reasons the Government would surely not now say that there existed some slavish desire to accommodate the Bush administration that affected its attitude to retrospective legislation. If the British Government was able, without apparent damage to its relationship with the United States, to extract its citizens from Guantanamo Bay without even prosecuting them on their return to the U.K., the Australian Government must have known that it could extract Hicks also, particularly if it undertook to prosecute him in Australia.

But what this Government could not do was try David Hicks under procedures similar to an American military commission. Even to persuade the Australian Parliament to pass the necessary legislation would probably have been an insuperable obstacle, and the procedures would then have had to survive the High Court’s scrutiny. Numerous precedents suggest they could not have done so for much the same reasons as those that dictate that no U.S. citizen is likely to face trial in the military commissions.

The Australian Government must have known that if David Hicks were brought to trial in an Australian court, the trial would have to be fair, and the admissibility of evidence would be decided on well-established common law rules. Evidence obtained under coercion would be rejected, as would hearsay evidence, say, of a written statement made by Mr Abbasi, without his giving the evidence in person. And the coercive methods used by investigators would be examined in detail, further damaging the reputations of the U.S. military and both the U.S. and Australian Governments.

The conclusion seems inescapable that the Australian Government was concerned that the evidence upon which the prosecution relied for a conviction of Mr Hicks would be rejected in a trial in Australia, and that he might in consequence be acquitted; that it did not pass retrospective legislation to cover offences of the nature now alleged against Mr Hicks because it wanted him to be tried by the seriously flawed procedures of the military commissions, rather than by an Australian court; and that it did not wish him to be tried before an Australian court, precisely because such a trial would have to be a fair one.