It’s great heartwarming news for every Australian. That freckle-faced kid, that Aussie larrikin, David Hicks is coming home! What a story he will have to tell about his adventures across the seas.

Hicks has pleaded guilty to providing support for terrorism, apparently not because he actually did it, but for other reasons. First, he wants to get out of the American Gulag and second, he could not have a fair trial, so he would be convicted whatever he did.

Hicks’s pleading guilty raises some interesting issues. No lawyer could permit his client to plead if the client did not commit the offence and no tribunal should accept such a plea. Hicks’s tribunal will have to be astute to be satisfied that it is a genuine plea.

A plea (of guilty) is an admission of the facts constituting the offence. The defence and prosecution lawyers are scheduled to meet to discuss the facts that will be the basis of his plea. This will involve an admission of facts by Hicks. If the facts do not support the offence charged, then the tribunal will not accept the plea of guilty. If sufficient guilty facts are admitted, then it is likely Hicks will be asked by the tribunal to admit them personally. If he is really not guilty, then he will have to lie his way into a conviction. It would be quite wrong for his lawyers to permit Hicks to admit facts which are not true.

If he is not guilty, then he should fight the case and obtain an acquittal. Ah, you say, he will be convicted even if there is no evidence. Well, I disagree. Hicks’ formidable media campaign has forced him into first place in the trials, ahead of all the others. The glare of world publicity would be on this trial. There is no way in which the American tribunal would be so stupid as to convict him on no evidence or insufficient evidence. To do so would be a victory for Hicks and radical Islam.

If he is pleading guilty, then you can be certain that his lawyers have advised him that they cannot get him acquitted because the evidence is too strong. Also, at a trial, he would have to give evidence and be cross-examined.

I have practised criminal law for about 45 years and it is my experience that it is extremely rare for a person who believes himself innocent even to contemplate pleading guilty (other lawyers may have different experiences). Hicks’s case is, of course, unusual. But, invariably, it is the clients who are convinced that they are innocent who fight the hardest.

If Hicks is innocent, then he should fight the case. If the evidence is not good enough, he will be acquitted. It is not credible that he should plead guilty to something he has not done, falsely admit facts to the tribunal and then come back to Australia and deny both guilt and the facts.

The one question that has been lost in the whole debate over Hicks is: Is he guilty?

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Peter Fray
Peter Fray
Editor-in-chief of Crikey
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