TV PROGRAM TRANSCRIPT
LOCATION: http://www.abc.net.au/7.30/content/2004/s1200045.htm
Broadcast: 15/09/2004 Hicks unlikely to get fair trial: lawyer
Reporter:
KERRY O'BRIEN: After years of debate over whether Australian Guantanamo Bay inmate David Hicks will receive a fair trial at the hands of the American military for alleged links to Al Qaeda in Afghanistan, the Australian Law Council has today released a blistering independent report which says there's a high risk there'll be a miscarriage of justice.
Melbourne QC Lex Lasry wrote the report for the Law Council after attending the opening days of Hicks's preliminary hearings at the prison camp last month as an independent observer.
Dismissing the prospect of a fair trial as "virtually impossible", Mr Lasry found: that the military commission is not independent in any sense that would generate confidence in its impartiality; that it includes five members who are not legally qualified, but are required to act as judge and jury; that the rules of evidence are all but absent and such rules as do exist seem to facilitate the admission of evidence that will never be tested by cross-examination; that the count of conspiracy against David Hicks is so broad and so easily facilitates a conviction as to arguably represent a misuse of that charge.
Coincidentally, after regularly expressing confidence in the American trial process, the Howard Government suddenly voiced concern about inadequate trial rules for the first time earlier this month, after the Lasry report was written, but before its public release.
Lex Lasry QC joins me now from our Canberra studio.
Lex Lasry, as an experienced trial lawyer, wedded to a fair and independent judicial system in this country, how did this trial impact on you personally as it unfolded?
LEX LASRY QC, LAW COUNCIL OBSERVER: Well, Kerry, I think the main thing that struck me was the lack of independence and the apparent lack of impartiality.
I'm used to independent judges, independent of government, supervising criminal trials and what I saw on August 25, I must say, didn't inspire me with confidence in that independence.
That was an early impression, amongst other things, created by the questioning of the commission on that first day.
KERRY O'BRIEN: So why can't this military commission be seen to be independent and impartial?
LEX LASRY, QC: Well, because it is a creature of the United States Department of Defence and it is under the control of that department and ultimately under the control of President Bush.
It is not in any sense a system of criminal justice that operates independently of government.
Effectively, the United States Government acts as David Hicks's original arrester, jailer, prosecutor, to some extent defender, sentencer and in a sense, provides a half a system of appeals.
KERRY O'BRIEN: But is that any different to a court martial?
LEX LASRY, QC: Well, a court martial operates independently, as I understand it, and has its own structure of appeals, in effect, staffed by judges who are specialist judges in that system and, of course, in the United States, a court martial ultimately has resort to the United States Supreme Court.
That doesn't apply in this case.
KERRY O'BRIEN: Is it important that five members of this commission, as you point out, aren't legally qualified?
There is plenty of precedent for that, isn't there, in military court martials?
LEX LASRY, QC: There probably is, but the important thing about this, Kerry, is that the non-qualified members of this commission are people who will be required to make not just judgments of facts, as juries would, but judgments of law as well.
So non-lawyers will have to independently - the presiding officer, who is a judge - will have to make judgments about the law.
And as I follow it, some of the legal issues will be quite complex.
KERRY O'BRIEN: You say that the rules of evidence are all but absent and to the extent that there are rules, they can't be cross-examined.
How serious a concern is that?
LEX LASRY, QC: Well, the problem is that there is really only one rule of evidence and it is, effectively, that anything that is probative to the reasonable person goes in, so there is no more complex set of rules, which enable proper analysis to be done of the evidence and the way that it can be used, particularly in the hands of non-qualified people who are making judgments or decisions about the facts.
KERRY O'BRIEN: You say that the particular conspiracy charge laid against David Hicks is very broad and will easily facilitate a conviction.
It almost sounds like you're suggesting that the outcome has been cooked, that the process has been designed for a conviction, regardless of the merits of the case.
LEX LASRY, QC: Well, there are people who think that it has been established as a conviction-based process and I can understand why they think that.
KERRY O'BRIEN: Do you think that?
LEX LASRY, QC: Well, it is too early to say, but the conspiracy charge is a very broad conspiracy charge.
It effectively is a charge of association and in courts - I'm sure in the United States and certainly here in Australia - courts are being critical about misuse of the charge of conspiracy.
And those criticisms may turn out to apply in this case.
KERRY O'BRIEN: You talk about the risk of a miscarriage of justice.
How strongly do you believe that a miscarriage of justice is likely in this case?
LEX LASRY, QC: Well, when you don't have an independent process before a commission, which contains members who appear to have a professional interest in the outcome and no independent process of appeal, the likelihood of a miscarriage must be very high.
KERRY O'BRIEN: You would be well aware, of course, that these have been extraordinary times since the savagery of September 11, particularly in its impact on America.
You don't think that such brutality, that such a threat that is implicit and even explicit in that attack and what's happened since justifies a tougher legal response with suspected terrorists?
LEX LASRY, QC: Well, Kerry, as I follow it, the logic of the war on terror is to preserve our way of life.
That's what President Bush and Prime Minister Howard say is under attack.
And part of our way of life is an independent, fair, principled criminal justice system.
To be dismembering that in the cause of dealing with people associated with terrorism is to me completely illogical and not a good reason to start removing long-tested, long-proven principles.
KERRY O'BRIEN: I assume that you'd apply the same findings to a similar military commission hearing, in any future case against the other Australian at Guantanamo, Mamdouh Habib?
LEX LASRY, QC: Well, there's no reason to believe that the rules would be the same, so, yes, my criticism, I suspect, will also apply to him also and it's a matter of considerable concern.
KERRY O'BRIEN: Coincidentally in timing, the celebrated investigative journalist Seymour Hersh - the man who revealed the extent of the tortures at Abu Ghraib in Iraq - has just released a book with powerful allegations of similar torture and mistreatment at Guantanamo Bay.
Where does that issue sit alongside your concerns?
LEX LASRY, QC: Well, one of the major problems with this process is that confessions, which appear to be the product of coercion, which would never be admissible in a civilian criminal court, if that could be demonstrated may well be admitted into evidence.
And I suspect that much of the evidence in these cases will depend on statements by other detainees who have made incriminatory statements of people like David Hicks in response to that kind of treatment.
Now if that turns out to be the case, then that's obviously a travesty of justice.
KERRY O'BRIEN: You've said that the Howard Government should demand changes from the Americans, either a court martial or a civil trial.
LEX LASRY, QC: Yes.
KERRY O'BRIEN: Mr Ruddock, the Attorney-General, has already dismissed your findings, which we'll hear in more detail in a moment, but if he was sitting in front of you now, how would you try to persuade him to change his mind?
I mean, how strongly, how passionately, do you believe what you've been telling us?
LEX LASRY, QC: Well, I would say to the Attorney-General, as the Attorney-General of Australia, that an Australian national is before a system of - apparently, a criminal process in Guantanamo Bay which is not independent and not impartial and in no way reflects the basic principles that apply to our criminal justice system and that that is something which the Australian Government ought to interfere with, to the extent that it can and make strong requests that David Hicks and Mamdouh Habib not be part of it.
Now, in the end, that's all I could say and I'm aware of the fact that the Attorney-General has effectively dismissed my criticisms and my report, although he has said that they are apparently negotiating some changes in response to concerns they have.
I would be most interested to know what those changes that they propose actually are.
KERRY O'BRIEN: Lex Lasry, thanks very much for joining us tonight.
LEX LASRY, QC: Thanks, Kerry.