Who knows?

We have quite a complex system of justice with many checks and balances. Often we get it wrong but far more often we get it right. Often those who are victims or the innocent are upset with the outcome, but far more often it is the guilty are upset that justice has been one. Not only should justice be done but it should also seen to be done, which are not necessarily the same thing.

Some of the rules cover evidence, the way the guilty is treated, witnesses, the conduct of the advocates and the prosecution, even the conduct of the state. All of these rules apply equally to those accused of petty theft and to those accused of serial murder. It makes no difference in law – the rules of the court must be adhered to to ensure a balanced and fair trial. There are very good reasons for all of these rules and we weaken them to our peril. One of the wise men of the ancient world, the king Solomon said that it was a wise king that brought justice to those who could not defend themselves, and over many hundreds of years out system of justice has striven to do just that. We are right to be proud of the system that we have inherited from our forebears and it is beholden to every generation to uphold the time worn principles on which our justice system is founded.

It is easy to pass judgment in the media, or with whispered half truths. How easy it is for a state to slander and undermine the truth with the resources available to it. This is why the Westminster principle of the separation of powers is so important. Legislature, Judiciary and law enforcement should be independent so that evidence can he tested impartially and independently to see if has any veracity. Every accusation should be tested in the court to establish the truth.

Evidence obtained under duress is inadmissible. It is considered as unreliable and not allowed to be heard. The accused is permitted to hear and challenge any evidence that comes before the court. The accused must not be held without charge and that charge, when made, can be challenged to prevent abuse by the state.
But what of the plea bargain? Obviously the idea is that it saves the cost and burden of a lengthy trial where the accused admits their guilt and thereby demonstrates remorse and in return accepts a lighter penalty. There is however a fundamental flaw with the plea bargain. The evidence is not brought before the court. It is assumed that the person offering the plea is indeed guilty and not coerced. One would hope that the system of justice in the west is such that one pleading guilty is not doing so out of fear that there may be a perversion of justice and that they are indeed innocent. I am sure that the movie type scenario is the exception rather than the rule. However the recent challenges to old convictions by reason of the new science of DNA testing makes one wonder how many innocent people were executed or are still incarcerated.

But what of a system where even these protection I spoke about are suspended. Where there is no appeal process as we have in civil courts. Where the rules of evidence have been weakened to allow evidence obtained by coercion. Where the accused does not have the right to challenge certain evidence due to its “sensitive” nature. What if the accused had been held for over five years without charge, where they allegedly had evidence obtained from them and others using coercion? What if they were offered a way out – merely by agreeing with their accusers?

What do we know of David Hicks’ guilt? I contend that we know absolutely nothing. We have heard innuendo and rumour but none of this innuendo has been tested. We do not “know” that he is a terrorist, whatever that means. We do not “know” that he was a member of Al Qaeda. And his admissions mean nothing. The statements of a person under duress are worthless. I am not saying he was not a terrorist, but neither does anyone have the right to accuse him of being a terrorist. Nothing is proven and we will never know.

What this whole exercise demonstrates is that the protections from state abuse are precious and we erode them at our peril.