24 July 2012

Memoirs and Proceeds of Crime

The SMH reports that the Commonwealth has abandoned attempted use of the Proceeds of Crime Act 2002 (Cth) to seize the proceeds - apparently around $10,000 - of Guantanamo, My Journey (Heinemann) by controversial former Gitmo prisoner David Hicks.

Hicks had joined the Taliban in Afghanistan prior to 9/11,  pleaded guilty before a US military commission, spent five years at Guantanamo Bay and was returned to Australia under a plea deal in 2007 (thereafter serving out the remainder of his US sentence in Adelaide's Yatala Prison).

The Hicks memoir is in my opinion disingenuous and perhaps unsurprisingly has not been a best-seller, despite his claim that -
This is the first time I have had the opportunity to tell my story publicly. I hope you find that this book is not only a story of injustice, but also a story of hope.
The Commonwealth Director of Public Prosecutions had sought to have Hick's profits from that book declared 'proceeds of crime' (aka POC), consistent with past moves designed not to reward celebrity criminals or their associates.

Lionel Robberds QC for the Commonwealth reportedly advised Garling J of the Supreme Court of NSW that the DPP had decided not to continue the case, with the Commonwealth then being ordered to pay Hicks's costs.

The DPP had successfully sought orders in August last year freezing the proceeds under s 20 of the Act pending a decision on whether they could be seized as POC under s 152 of the Act.

Hicks is reported to have claimed that he had been unfairly pursued by the Australian government and that the abandonment was a vindication.
In a way I feel that this has cleared my name and I hope now that the Australian government acknowledges that Guantanamo Bay and everything connected with it is illegal. I've always felt that it's always been political, whether back in the days of Guantanamo Bay and now I've been out for four years and we're still going and there's been some closure to that today. 
If there was actually any evidence, if any crime had been committed we would have been able to proceed at court but they've pulled the pin, they weren't prepared to fight us on that.
The DPP media statement today indicates that -
As is often the case under the Proceeds of Crime Act, these proceedings were commenced with initial steps to preserve assets from dissipation, in order that the assets placed under restraint could remain available to satisfy any orders that the Court might ultimately make. 
The evidence available to my Office was sufficient to commence those proceedings on the basis that Mr Hicks stood to benefit financially from the commercial exploitation of his notoriety resulting from the commission of a foreign indictable offence. 
The evidence included Mr Hicks’ plea of guilty before the United States Military Commission and admissions made by him before that Commission. These admissions are recorded in the following documents, which were obtained through international cooperation:
  • A certificate of conviction issued by the Military Commission in relation to Mr Hicks, for an offence against 10 United States Code section 950v Part 25 – providing material support for terrorism, to wit al Qaeda. 
  • The transcript of the Military Commission hearings on 26 and 30 March 2007. 
  • The Stipulation of Fact, Charge Sheet and Pre-Trial Agreement produced in the course of the Military Commission proceedings against Mr Hicks. 
Following commencement of the proceedings, Mr Hicks challenged the admissibility of the documents listed above, based upon the conditions and circumstances in which he made the relevant admissions. The challenge also relied upon the fact that Mr Hicks entered what is known in the United States as an “Alford plea”. This is a type of plea not recognised in Australia, whereby a defendant is able to acknowledge that the available evidence is sufficient to prove the case beyond reasonable doubt, without admitting commission of the offences charged. 
In support of the challenge, the Defendants served evidential material not previously available to the CDPP and AFP.
 The nature of the new evidential material is undisclosed.

I'm reminded of Gerard Henderson's rather tart observations in the SMH about the book in 2010 -
Since his release from prison, Hicks has had many opportunities to tell his story. As the author makes clear in the final chapter of his memoir, he "had no interest in talking to the media". 
It seems that Hicks has decided to write a book and leave it at that. This means that he can state his case without being questioned about his life or his story. Reading Guantanamo: My Journey, you can see the rationale for such an approach. In the author's note, Hicks declares that his book will address how he "came to Afghanistan and many other topics truthfully, honestly and in full detail". It doesn't. A few paragraphs later the author asserts that he "did not harm anyone". How would he know? 
Hicks became a Muslim before he left on his journey to the subcontinent in 2000. In Pakistan he joined the terrorist group Lashkar-e-Taiba (LET). As a member of LET, Hicks engaged in military action from the Pakistan side of the Kashmir Line of Control against targets on the Indian side of the line. 
In his memoir, Hicks presents this military action as of no moment. He writes: "We did not fire upon Indian soldiers or any other people. We only participated in the symbolic exchange of fire. Both sides remained safely housed within their stone bunkers, so we knew we were in no danger of actually hurting anyone . . . nor was that our intention." 
That is what Hicks asserts in 2010. But it is not what he claimed a decade ago. On August 10, 2000, Hicks wrote to his family in the following terms: "Every night there is an exchange of fire. I get to fire hundreds of rounds . . . There are not many countries in the world where a tourist ... can go to stay with the army and shoot across the border at its enemy - legally." 
Hicks's family released his correspondence for a documentary by Curtis Levy and Bentley Dean, which was titled The President Versus David Hicks and was shown on SBS in March 2004. 
In 2000 Hicks was not claiming that that his firing on "the enemy" was in any sense symbolic. In this same correspondence Hicks stated that he had joined the Taliban, praised Islamist beheadings and advocated the overthrow of what he termed "Western Jewish domination". 
In his memoirs, Hicks describes the letters written to his family as "regrettable and embarrassing". Well, yes. But they give a clear picture of how Hicks thought when he was an active member of the LET before he was captured by the Northern Alliance in Afghanistan and handed over to US authorities shortly after the Allied invasion in late 2001. 
As Sally Neighbour wrote in The Australian last Tuesday, Hicks was "a highly trained and seemingly dedicated al-Qaeda recruit" who undertook "no fewer than four military training courses run by al-Qaeda in Taliban-ruled Afghanistan". 
Yet, despite his promise of full disclosure, Hicks deals with this issue in just over a page and denies that he had heard of al-Qaeda until he arrived in Guantanamo. He also ignores the inconvenient truths about him documented by Leigh Sales in her empirical and balanced book Detainee 002, which was published in 2007.
Without endorsing Gitmo and other abuses I'd have liked to have seen more acknowledgement in the memoir of the price paid in Afghanistan by people who disagreed with the Taliban or who were just in the wrong place at the wrong time.

Neither Hicks nor the US military prosecution emerge with glory from Detainee 002, an excellent piece of journalism (reviewed by Sir Anthony Mason & Geoffrey Lindell here), and it is likely that we will never resolve apparent major inconsistencies in statements by Hicks.

Elsewhere the Supreme Court of Victoria in Director of Public Prosecutions v Moran [2012] VSCA 154 has found that property claimed by the state's Director of Public Prosecutions to be tainted could not be considered as such.

The DPP had unsuccessfully sought orders under the Forfeiture Act 1997 (Cth), ie the Victorian PoC statute. On appeal from R v Moran [2011] VSC 375 it was found that there was insufficient connection between loan payments to Moran's co-offenders (for which the property was used as security), for the property to be considered as used in connection with the offence.

The Court in the first instance had
heard an application by the Director of Public Prosecutions for the forfeiture of the proceeds of the sale of your house at 10 Ormond Road, Ascot Vale and of the Land Rover Discovery vehicle that [Judy Moran] purchased for, and gave to, Geoffrey Armour in consideration for his part in the killing of Desmond Moran. 
As I have already indicated in my reasons, I have refused the DPP’s application in respect of the proceeds of the sale of your house, but I have granted the application in respect of the Land Rover Discovery vehicle which I have determined is “tainted property” for the purposes of the Confiscation Act 1997. Apart from the vehicle, which you paid for, there is, therefore, no other issue of forfeiture that must be taken into account in your sentence other than the forfeiture of the vehicle. The proceeds of the sale of your home at 10 Ormond Road will remain available to you.
The Court of Appeal found that the Land Rover was removed from the property to conceal it from police after being used in the murder. That vehicle would only have been considered tainted if given to a perpetrator as payment or reward.