Here is the REAL story on the Aussie 'runaway' David Hicks. Let...

Here is the REAL story on the Aussie 'runaway' David Hicks. Let him prove he is truly innocent!


Peter Faris | January 01, 2008
DAVID Hicks's former Australian lawyer Stephen Kenny has told the media that Hicks has not committed any crime. Hicks would not have been convicted of a terrorism-related charge by any fair court, he has said.

Hicks had simply accepted an "offer he couldn't refuse" to get out of a US military prison at Guantanamo Bay, Cuba: "It was quite clear on all the evidence we had, there was no evidence that he had actually committed any crime."

This legal opinion raises some interesting questions. If Hicks has committed no crime then he should not have remained in custody in Australia.

Further, if there is no evidence against him, the Labor Attorney-General should not have authorised an application by the Australian Federal Police for a control order and the magistrate should not have imposed an order.

The law considers a confession sufficient evidence of a crime. A person can be convicted on a confession even if there is no other evidence.

Here, Kenny implies that Hicks made a false confession of guilt, knowing full well that he had committed no crime. Kenny suggests he did this to get out of the prison at Guantanamo Bay. A false confession in these circumstances is not sufficient to support a conviction.

There are also other legal issues raised here. The Hicks book (and film rights) will be worth millions of dollars. Will Attorney-General Robert McClelland and the AFP seek to prevent Hicks and his family from directly (or indirectly) profiting from the alleged crime?

Labor is in a difficult position: the public will be outraged if a confessed terrorist is rewarded for his terrorist conduct with millions of dollars. On the other hand, if Kenny's legal opinion is correct, Hicks will be free to accept the profits because he has committed no crime.

Hicks is apparently serving a suspended sentence from the Military Commission. Any breach of that would (theoretically) send him back to jail, either here or in the US. If he has committed no offence, it is quite wrong that this should be left hanging over his head.

Interestingly, Hicks and his lawyers have failed to challenge any of these matters in the Australian courts. In fact, his present lawyer David McLeod says that the control order condition of reporting to the police three times a week is to be challenged, but that Hicks would not challenge the primary basis of the order.

Hicks came home because of a successful public campaign that held, as its basic principle, that he should be tried in Australia because its laws are fair. Now is his opportunity. He should challenge the US conviction as being obtained on no evidence and a coerced, false confession of guilt (according to Kenny).

This can be done in the Australian courts. He has plenty of money behind him and plenty of lawyers willing to act.

If he succeeds, then the control order and the suspended sentence fall and he keeps millions of dollars in proceeds from the book and film.

If Hicks does not challenge the primary basis, then ordinary Australians are entitled to conclude that he is guilty.

Peter Faris QC is a Melbourne criminal barrister.