The war against David Hicks may be over 
Friday, July 27, 2012
Justinian in Commonwealth DPP, David Hicks, George Brandis, Guantanamo Bay, Proceeds of Crime, Theodora

Proceeds of Crime case against David Hicks folds ... Long period of vilification for Hicks may be over ... Admission of guilt in Guantanamo Bay "unreliable" ... Shadow of political meddling in criminal justice ... Soapy Brandis wide of the mark (again) 

David Hicks - outside the NSW Supreme Court on Tuesday

THE ultimate ignominy transpired this week when the Commonwealth Director of Public Prosecutions withdrew his prosecution of Hicks under the Proceeds of Crime Act

The proceedings sought to restrain further publication of the book Guantanamo: My Journey and an order for recovery of the proceeds of the book's sale. 

The last person on the parapet shouting and pouring boiling oil on Hicks' head has been the Coalition's alternative attorney general Senator (Soapy) Brandis. He was given chest-beating space in the Murdoch press to advance his ill-conceived legal thesis that Hicks must be charged. 

As one prominent lawyer said to me after the case was dropped:

"Better to appoint a wombat as the next attorney general. At least it would do no harm and it would mean well." 

Brandis could not have been across the common law or s.84 of the Evidence Act, both of which say that an admission of guilt cannot be put to a court if it was procured by "violent, oppressive, inhuman or degrading conduct". 

The statement put out on Tuesday (July 24) by the DPP was an attempt at face saving. It claimed that Hicks' lawyers served new evidence, not previously available to the police or the prosecutors. 

Maybe no one at the Commonwealth DPP has read Hicks' book, which detailed his mistreatment, the denial of assistance by the Australian government and the fact that he faced the prospect of staying in Guantanamo forever, even if he was successful before a Military Commission. 

Any "new" evidence would have been an elaboration of what was already available. 

The last sentence of the DPP's statement said:

"I reached the view that this office was not in a position to discharge the onus placed upon it to satisfy the court that the admissions should be relied upon and decided that these proceedings should not continue."

In other words, Hicks' admission of guilt is unreliable. 

There is also another consideration. Not only was Hicks' admission forced by mistreatment, but the charge itself is a fabrication. Never has "material support for terrorism" (or MST) been a war crime, in the entire history of the world - until it was manufactured by the US Congress in the Military Commission Act of 2006. 

This was after Hicks' had allegedly materially supported terrorism by "engaging in combat" against US forces in Afghanistan. 

For the US to make opposition to Americans in a war zone a war crime and to apply it retrospectively is beyond the norms of anything previously considered in international law. 

The issue of whether MST is a valid war crime is awaiting an outcome from the US Court of Appeals for the District of Columbia Circuit in the Hamdan case. The decision is imminent. 

Maybe its very imminence is a factor that weighed on the prosecutor's mind back home. If all of a sudden the offence to which Hicks pleaded guilty was found to be invalid by a US court, his prosecution under the proceeds of crime legislation would be left looking pretty silly. 

We've seen this late minute scuttling of prosecutions before. In 2005 a DC District Court judge, Joyce Hens Green, was on the verge of releasing her judgment in which she was to discuss Mamdouh Habib's torture. 

Someone in the US government, perhaps Vice President Cheney's people, may have tipped off Howard & Co as there was a sudden change of tack. 

Australia successfully sought Habib's repatriation just before the court decision was announced. 

Drawn from Richard Ackland's SMH opinion column, July 27, 2012

Article originally appeared on Justinian: Australian legal magazine. News on lawyers and the law (
See website for complete article licensing information.