Source : - Sydney Morning Herald
January 20, 2007
DAVID HICKS'S military lawyer, Major Michael Mori, has criticised new Pentagon rules for putting his client on trial, saying they are in some ways worse than the previous ones ruled illegal by the US Supreme Court.
However, the Australian Government yesterday welcomed the military commission guidelines and called for charges to be laid quickly against Mr Hicks and a trial held. The rules, which allow the use of hearsay evidence and evidence gathered using coercion, meant Mr Hicks had no chance of a fair trial, Major Mori said.
"It's a fresh coat of paint on a broken-down house," he said.
"All I want is for David to get a fair trial for a real crime. The real problem is the same people who wrote the previous system created this system."
There is no provision in the rules for the US to automatically take into account the five years Mr Hicks has already spent in detention should he be convicted and sentenced, something the Australian Government has asked for. Mr Hicks would have to ask for the deduction during any sentencing submissions.
The Labor Party criticised the new trial system, pointing out that US citizens were not to be subjected to it. "Why does the Australian Government accept what no other Western government does?" asked Labor's legal affairs spokesman, Kelvin Thomson.
The Law Council of Australia said the military commissions fell well short of fair trial standards and were "designed to rubber-stamp decisions about guilt that were made long ago".
The rules reverse the normal presumption on the admission of hearsay evidence; the defence will have to show reason why such evidence should be ruled out instead of the prosecution having to argue why it should be included. The Attorney-General, Philip Ruddock, defended the use of hearsay and coercion because those being tried had been detained in a military conflict.
"Ultimately the admissibility of evidence will be a matter for the military judge to determine, taking into account the totality of the circumstance," he said.
Under the previous military commissions Mr Hicks was charged with conspiracy, aiding the enemy and attempted murder by an unprivileged belligerent. The rewritten rules eliminate at least two of these charges because they stipulate that suspects can only be charged with aiding the enemy if they owe allegiance to the US.
The charge of attempted murder, with its reference to an unprivileged belligerent - someone who is not a soldier of an opposing army - also does not appear in the new set of offences.
But the change has reinstated the charge of conspiracy, which the Supreme Court said was not a normal law of war.
Meanwhile, it emerged that the anonymous person who the Foreign Affairs Minister, Alexander Downer, said had visited Mr Hicks and concluded he was not in an poor mental state was travelling with a group of visiting dignitaries, including officials from the US embassy.
None was medically qualified.