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Tuesday, 8 February 2005
Page: 171

Senator Brown asked the Minister representing the Attorney-General, upon notice, on 16 November 2004:

With reference to the prospective trials of Mr David Hicks and Mr Mamdouh Habib before a United States (US) Military Commission established under a Military Commission Order, under which a statement is admissible in evidence ‘if it has probative value to a reasonable person’:

(1)   Does this provision give the defendants less protection against making admissions as a result of physical or mental torture than they would have if they were tried by a civil court in either Australia or the US.

(2)   Will the Australian Government petition the US Administration to ensure that statements made by the defendants under duress are not admitted as evidence by the military commission.

(3)   Will the Australian Government petition the US Administration for an inquiry into whether Mr Hicks and/or Mr Habib have been subjected to torture to be conducted by an independent inquiry rather than by an inquiry held within the US Navy.

Senator Ellison (Minister for Justice and Customs) —The Attorney-General has provided the following answer to the honourable senator’s question:

(1)   The provision of Military Commission Order No. 2 cited in the question is a rule governing admissibility of evidence, not protection against making an admission. That is, it is not a rule about the methods by which confessions may be obtained, but rather a rule about whether those admissions may be accepted as evidence in a military commission proceeding.

In Australia, the admissibility of admissions into evidence in a prosecution for offences against Commonwealth criminal law is governed by the Evidence Act 1995 and provisions in the Crimes Act 1918. In accordance with section 84 of the Evidence Act 1995, an admission is to be excluded from evidence if it was influenced by “violent, oppressive, inhuman or degrading conduct” or “a threat of conduct of that kind”.

The rules of evidence applicable to the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda do not include an express provision excluding evidence obtained as a result of torture. Rule 95 of the Rules of Procedure and Evidence applicable to the ICTY states that: “No evidence shall be admissible if obtained by methods which cast substantial doubt on its reliability or if its admission is antithetical to, and would seriously damage, the integrity of the proceedings”. Similarly, evidence is not to be admitted before a military commission unless it would have probative value to a reasonable person. A determination of the probative value of a piece of evidence may include consideration of the manner by which that evidence was obtained.

(2)   US authorities have previously advised it is open to defence counsel acting in military commission cases to argue that the manner in which evidence, including admissions, was obtained means that the evidence could not have probative value to a reasonable person.  The decision whether to admit evidence is a matter properly considered by the military commission members who are sitting as deciders of law and fact.

(3)   The Government will await the results of the US Navy’s investigation.