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Hicks: guilty means guilty, sort of ...

By Mirko Bagaric - posted Wednesday, 28 March 2007

The David Hicks guilty plea to the charge of providing material support to terrorism has done nothing to quell the debate about his actual guilt or innocence.

The spin that is being put on the plea negotiations by Hicks supporters, including Senator Natasha Stott Despoja and Bob Brown, was inevitable. They contend that Hicks’ plea has nothing to do with his actual culpability. Rather they claim that he was forced to cut a deal because he was broken by the oppressive conditions in Guantanamo Bay and his admission of guilt was a desperate measure to remove himself from US military detention.

While his exact sentence is yet to be finalised, there is no doubt that for sparing the prosecution the trouble of proving its case, he will get a significant reduction on the 20 years that the prosecution was pushing for. It is likely that he will get between 8 to 10 years.


Hicks will serve the remaining portion of his sentence in Australia. With a discount for time already served (which will be part of the deal) Hicks is likely to be out in less than five years. Most probably, as he is swanning out of the prison gates the Federal government will slap a control order on him, but this won’t prevent him doing the speaking rounds to his growing tribe of fanatical civil libertarians who will continue to unremittingly proclaim the innocence of their champion.

So what are we to make of the suggestion that Hicks is actually innocent? One thing that is clear is that it is inappropriate to uncritically accept the self-serving comments by Hicks’ lawyers that Hicks’ resolve to fight the charges was overborne as a result of being subjected to cruel and inhumane treatment, including torture, in Guantanamo Bay.

The Hicks team has steadfastly maintained that none of the allegations against Hicks can be assumed until they have been proven before an independent tribunal. Logically, this means that no allegations by any party should be assumed until they have been proven before an independent tribunal. That must also include allegations that the US Government has violated international legal norms regarding the treatment of prisoners. While many allegations of serious mistreatment of prisoners have been made in Guantanamo Bay, none of them have come from disinterested credible sources.

Ultimately, the only rational inference to be drawn from the Hicks plea is that he is guilty as charged. Of course there remains room for some scepticism on this front, due to the heavier penalty he would have received if he had been found guilty after contesting the charge. However, it is misguided to overplay the level of doubt that surrounds his guilt. This would be at odds with the manner in which we approach the guilt of people who plead guilty in Australian courts.

The pressures that were on Hicks to plead guilty, while perhaps different in degree, are no different in nature to those charged with common or garden variety serious offences in Australia. Cumulatively, these can be so overbearing that sometimes even innocent people plead guilty.

The pressures come in a variety of forms. First, at the sentencing stage, accused who are found guilty after contesting a charge receive a higher penalty than those who plead guilty. The discount for pleading guilty varies across the Australian jurisdictions, but typically it is in the order of one-third.


It is likely that Hicks’ lawyer will be negotiating for more than a one-third discount, thus potentially there is even more incentive for Hicks to plead guilty than is typically the case in Australia. And doing time in his homeland has the advantage that he can receive visits from friends and family.

However, those accused in Australia have the added pressure that if they go to trial, they risk losing their life savings. Criminal trials often run into the weeks and sometimes months. Defence legal fees regularly balloon into the hundreds of thousands of dollars. Unlike civil matters, if an accused wins the trial they can’t get a portion of their costs refunded.

Moreover, it is not uncommon for accused in Australia to spend two to three years in jail waiting for their trial to proceed - not quite the five years that Hicks has served, but certainly within the ballpark. If they are ultimately found to be innocent, no compensation is awardable.

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About the Author

Mirko Bagaric, BA LLB(Hons) LLM PhD (Monash), is a Croatian born Australian based author and lawyer who writes on law and moral and political philosophy. He is dean of law at Swinburne University and author of Australian Human Rights Law.

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