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Military Commission rules lessen Hicks chances of fair trial

  • 02 April 2007

Any commentary on the charges facing David Hicks, or the facts surrounding the case, is speculative and uninformed unless the commentator has read the prosecution brief. In order to consider whether Hicks will receive due process as understood in common law jurisdiction it is necessary to analyze the Manual for Military Commissions. It is the Manual that sets out the rules of evidence and procedure under which Hicks will be tried.

The Manual states in its Executive Summary that it provides for a full and fair prosecution of alien unlawful enemy combatants, and that it affords all the judicial guarantees which are recognized as indispensable by civilized people, as should any criminal justice system.

Whist acknowledging that many of the rules of procedure and evidence in the Manual are unexceptional and indeed familiar to criminal law practitioners in Australia, the Manual fails its own standards in a number of ways.

First of all, its jurisdiction is retrospective and wide ranging. Second, an involuntary confession is admissible as evidence. Third, the hearsay rule is unfair to the Accused and dilutes the common law rules of hearsay. Fourth, important procedural rules are not predicated on principles of fairness. Finally, any custodial sentence imposed does not take into account time served by the Accused.


The issue of Jurisdiction is difficult one, as it applies to unlawful enemy combatants. The definition of unlawful enemy combatant is so wide as to include purposeful and material support of hostilities against a co-belligerent of the US. A political analyst could imaginatively construct any number of scenarios that would fit into such a definition but would be outside “the war against terror”.


Combine the question of jurisdiction with the Rule 201 of the Rules of Evidence, which allows for offences backdated to September 11, 2001 and the Military Commission in effect has unlimited and retrospective jurisdiction over any perceived opponent of the United States in foreign policy.


Rule 304 (a) of the Rules of Evidence excludes a statement obtained by use of torture, but if obtained by the product of coercion it may be admitted. Torture is defined as an act specifically intended to inflict severe mental pain or suffering upon another within the actor’s custody or physical control. Coercion is not defined. The military judge may admit such statements if the totality of the circumstances renders the statement reliable and possessing sufficient probative value. The interrogation methods