[TRD2000]

Wednesday September 15, 12:29 PM


Hicks can't receive fair trial: report




Terrorist suspect David Hicks could not receive a fair trial under flawed United States military commission procedures, the Law Council of Australia said.

The council released the report of barrister Lex Lasry, QC, who was the only independent Australian lawyer to observe the initial commission hearing for Hicks at Guantanamo Bay in Cuba last month.

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In his report, Mr Lasry said it would be virtually impossible for Adelaide-born Hicks to receive a fair trial under the current flawed arrangements.

Mr Lasry recommended that the Australian government press the United States to put Hicks before a court martial, the US civilian justice system or return him to Australia.

"The Law Council, having reviewed Mr Lasry's report, is in full agreement with this view," Law Council president Bob Gotterson, QC, said in a statement.

Mr Gotterson said the government must pressure the US to remove Hicks from the military commission process.

He said Hicks should be tried under an independent and properly constituted judicial process, and the same should apply for Sydney man Mamdouh Habib, who is also being held at Guantanamo Bay.

At a preliminary commission hearing in Cuba last month, 29-year-old Hicks pleaded not guilty to charges of attempted murder, conspiracy and aiding the enemy.

"We believe the Australian government must now make strenuous efforts to ensure any proceedings under which Mr Hicks might ultimately be tried take place in a properly constituted and independent court with conventional rules of evidence and a judicial appellate structure," Mr Gotterson said.

In his report, Mr Lasry cited several reasons which he said made a fair trial for Hicks virtually impossible.

He said the military commission was not independent in any sense that would generate confidence, as it was created and exclusively controlled by the executive of the US government.

Five of the six commission members had no legal qualifications and would be required to resolve both issues of fact, normally decided by a jury, and law, decided by a judge.

Mr Lasry said rules of evidence were all but absent and those that did exist appeared to facilitate introduction of evidence which could not be tested by cross-examination.

"The consequence is a likely unfairness that goes to the root of the fair trial issue," he said.

"There is no viable appellate process which can impartially correct errors and remedy a miscarriage of justice."

Mr Lasry said there was a strong relationship between the commission's presiding officer and the appointing authority, the US government.

He also said several commission members might have established views because of their former involvement with military operations in Afghanistan.

Hicks was captured in Afghanistan in November 2001.

Habib was detained in Pakistan in October of the same year.

Only Hicks has been formally charged.