Not everyone is entitled to a trial – especially the one that Hicks’ supporters want 
Posted By Mirko Bagaric on February 12th, 2007
People who leave Australian shores in pursuit of violent means of expression and are captured while being engaged by an enemy of Australian during a war are so culpable that they have no right to trial, let alone a speedy or fair one. If that principle is right, the Hicks’ crusade which has now taken to marching on Parliament House in Canberra is a near world record for misplaced compassion.
The Hicks’ lobby has stated that the conditions under which his case will be heard are unfair because hearsay and evidence obtained under coercion might be admissible.
However, a fundamental point that has been overlooked in the Hicks saga is that perhaps Hicks is not morally or legally to a trial at all, and should remain in detention until the war in which he was captured is over.
Not everyone is entitled to a fair trial and certainly not the type of trial that supporters of David Hicks want him to receive. You see, the right to trial is not absolute.
In fact no right is absolute. Even the right to life (upon which all other rights are contingent) can be violated in some circumstances. Hence we are permitted to use lethal force against people who try to attack us with weapons.
Aggressors that are killed by people exercising their right to self-defence obviously also lose their right to trial. However, it is not just urgent situations that warrant deprivation of the right life and the right to trial.
In times of war it is permissible to kill suspected enemy combatants, even when they are not actively engaged in conflict. This is acknowledged by the Hicks crusade. Hence, they didn’t give a peep last year when ‘suspected’ al-Qaeda Number 2 Abu Musab al-Zarqawi had his right to life (and trial) snuffed out by two US bombs that dropped near the top of his head – killing him and 10 other (presumed to be innocent) people in the vicinity.
It takes only a small extension of this principle to bring the Hicks situation within the circumstances in which a right to trial can be violated. Hicks voluntarily left Australian shores and was captured in Afghanistan in November 2001 (after America had declared war on the Taliban) while associated with the murderous Taliban regime. These matters are clear.
Do people who leave Australian shores and associate with the enemy during times of war lose their right to a trial? Perhaps. This is supported by the fact that if Hicks had suffered an even worse fate and being killed as he was guarding the tank there would have been little cause for remonstration – collateral death is a regrettable reality of war.
What is clear is that if Hicks is entitled to a trial, it’s nonsense for his supporters to claim that the rules laid down for the military commission are unfair. While the rules governing the admissibility of evidence differ from those in some Australian courts, this is likely to improve the search for substantive justice.
The law of evidence in Australia consists of counter-intuitive rules, which over the ages have gone from judicial hunches to near concrete truths. These rules often convert the trial process from a search for the truth to a contest to see which side is best at manipulating baseless technicalities.
The complaint by Hicks’ lawyer about using evidence obtained by coercion is a good example of the non-workings of the Australia process. There are two ideals which supposedly justify compromising the search for the truth by throwing out evidence obtained by coercion.
The first is the desire to not pollute the supposed purity of our system. This misses the point that as a matter of logic and ethics, blame and wrongdoing aren’t like bad smells – they don’t contaminate everything in the vicinity.
Disapproval of coercive investigative practices is best signified by punishing corrupt officers who engage in such conduct. There is no need to become obsessive about the issue by throwing out reliable evidence and thereby imperiling community safety by releasing known criminals in order to underline the disapproval of police misconduct.
The ‘disciplinary principle’, which contends that we need to discourage police from adopting inappropriate practices in a bid to nab crooks, is also thought to support the rejection of coerced confessions.
This misses the point that the law of evidence is a wholly ineffective vehicle for disciplining police. Sure, some police have a personal interest in the outcome of their cases, but they are far more interested in ensuring they keep their jobs and stay out of jail.
The best means of ensuring that police follow the Investigative Code of Conduct Manual is, again, by ensuring that those who overstep their powers are punished. The community should not be punished, by having its safety jeopardized, for the sins of police officers.
In a properly functioning legal system, the correct process for dealing with coerced evidence is to admit it and then penalise the parties that obtained the evidence. It is inappropriate to compound the injustice of a coerced confession by allowing a guilty person to walk free.
And as for hearsay evidence, there are so many exceptions to the prohibition of this type of evidence in Australia that the prohibition is observed more in the breach than the observance. Hearsay evidence is especially appropriate in military trials. It would be ludicrous for the US to expect Hicks’ Taliban colleagues to dutifully answer subpoenas and swan into the military commission to provide first hand evidence of the facts relating to Hick’s charges.
It’s time for Hick’s legal team to stop complaining about the process and got a wriggle on and plead guilty or contest the charges at the military commission. Challenging the legality of the newly established military commission is unlikely to be in the interests of even David Hicks – that is if the aim is to get him out of Guantanomo Bay as quickly as possible.
A version of this was in the Canberra Times on 8 February 2007.