DAVID HICKS IS ENTITLED TO –AND IS LIKELY TO RECEIVE- A FAIR TRIAL

David Flint*

The latest indications are that David Hicks’ trial could now be delayed until next year. That trial of course must be fair. This means the tribunal must be independent, he must be presumed innocent and the prosecution must prove its case beyond reasonable doubt.

There is a widespread perception in Australia, and in the US and the UK, that the pendulum has swung too far in protecting an accused person under our criminal justice systems. Indeed, NSW Deputy Crown Prosecutor, Margaret Cunneen, has lamented the fashionable view that it is somehow a noble thing to assist a criminal to evade conviction.

To the public, the system seems to be less about justice and more about technicalities, and excusing behaviour by the sane on sociological and psychological grounds.

This is exacerbated by the perception that the police have become so neutered that at crucial times, (eg. Redfern or Macquarie Fields) they are unable or unwilling to enforce the law.

The result is a serious decline in the quality of life in our cities, and a crisis in confidence in the ability of the state to perform its fundamental duty - the provision of law and order.

But if this is the way to run the criminal justice system, it is surely no way to run a war. 

The danger in extending the current fashionable indulgence of the criminal to the conduct of war is demonstrated by the Clinton administration’s tendency   to treat terrorists as criminals.

Even after the bombing of the World Trade Center in 1993, and subsequent terrorist outrages elsewhere, President Clinton allowed Bin Laden to escape from Khartoum without his plane being intercepted.  Why? Legal advice from the FBI indicated that crucial evidence could not be used in a US criminal court.

Bin Laden was thus able to continue with impunity, culminating in the horror of 9/11. Understandably, President Clinton is said to consider this his greatest mistake.

David Hicks is of course no Bin Laden. Alleged to have trained within al-Qa’ida, and to have joined Taliban forces to fight US-led forces, he is charged with conspiracy, attempted murder and aiding the enemy. He has been denied POW status-if this had been granted he could not have been interrogated except in the most formal sense, but he could also be detained until the termination of hostilities.

After the US agreed not to seek the death penalty, and that any sentence be served here, and with advice that he could not be tried in Australia, the Australian government did not object to a military trial.

So why not try him in an American court?

But as with Bin Laden, crucial evidence may not be admissible. This does not mean it is worthless, or would be not be admitted in the courts of other countries. For example, some of the evidence suggested for Schapelle Corby’s defence in the Bali court would not be admissible here. The ostensible reason for strict rules about this is that a jury could not be trusted not to be prejudiced with such knowledge. This has become the excuse for the increased technicality and the outrageous delays of our criminal law which have become a public scandal. Just think what that does to the victim of, say, gang rape, when she is subjected to yet another drawn out trial because of some technicality.

Those calling for Hicks to be tried before a civil court are either ignorant of American law, or they know, as those who advised President Clinton about Bin Laden did, that any such trial would be a pointless embarassment.

The judicial activists who have dominated the US Supreme Court, particularly in the last decades of the twentieth century, have ensured that. Most if not all of the evidence against Hicks would be disallowed under the exclusionary rule. This rule provides that any evidence secured in breach of the Bill of Rights, the first ten amendments of the Constitution, is not admissible. But the test is not according to the text of the Bill of Rights, as intended by the Founders of the United States. It is according to the interpretation activist judges have chosen to give to each of these rights. For the first 123 years of the Union, there was no exclusionary rule. Until 1961 it applied only against the Federal government. .

The proposition that the US Bill of Rights, as reinterpreted by the most liberal and elitist judicial activists, is to apply to the conduct of war is not realistic.

Whatever we think of the effects of this charade on the criminal justice system, it is fortunate that a military commission will not have to operate this way. In fact, changes announced at the end of August 2005 will modify the process so that it more resembles a civil court, without the disadvantages. The presiding officer will operate as a separate judge, the panel more like a jury.

The public know that trial by a US military Commission is not necessarily unfair. For example, they won’t complain if Hicks testimony on interrogation is not disallowed because the Miranda warning mantra was not administered, or this or other evidence is automatically disallowed from any consideration merely because of the exclusionary rule.

This is not to say that Hicks will not be able to challenge any evidence-for example that an admission was obtained under torture. The presiding officer will weigh this, and consider any evidence tendered which suggests  impropriety. Moreover, his decision can be changed by the panel.  

Being made up of serving  officers, guided by a code of honour and endowed with good sense, the  military commission is also  less likely to be concerned with any argument that Hicks himself was a victim, that he was not fully responsible for his acts.

 They will hear and properly weigh evidence that might be technically  inadmissible in an Australian criminal court- just as judges in France and Indonesia do. This is after all military justice, the sort of justice we dispensed after the Second World War. And in any event, in Hamdan v. Rumsfield, the second highest civil court in the US has rejected   all constitutional and other challenges to such trials. Hamden has just asked the Supreme Court to reconsider the decision. If the court agrees, Hicks case too will have to wait.

 If the trial proceeds, the presumption of innocence and the need for proof beyond reasonable doubt will still prevail. Hicks will be legally represented, thanks to the US and Australian taxpayers. Any decision will not be final.

There is one other potential safeguard, which may encourage the Supreme Court not to intervene- at least at this time. In Hamdan, one  of the judges thought the Geneva Convention provision that  that  all  of the  guarantees recognized as indispensable by civilized peoples must apply .The majority disagreed , but went out of their way to say that if this were correct, the plaintiff could come back if the trial breached those guarantees. The door to the civil courts has not been slammed shut.

In the meantime, surely it is wrong, indeed insulting, to assume that a military trial by officers from the very army we relied on to help save our country in the Second World War, and to keep it free must necessarily be unfair.

 We should wait, as the Supreme Court should, until the trial is concluded.

*David Flint is an emeritus professor of law