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Estimates: David Hicks Questions

Estimates & Committees
Penny Wright 17 Oct 2012

Legal and Constitutional Affairs Committee
Wednesday 17 October 2012

Office of the Director of Public Prosecutions

Senator WRIGHT: I have questions regarding the proceedings against David Hicks under the Proceeds of Crime Act. First of all, can you please explain the basis on which this case was brought, what was the crime that was alleged to have occurred and from which a profit was alleged to have been made?

Mr Jolliffe: There was an action under the Proceeds of Crime Act, as you may already be aware. The previous director, now His Honour Judge Craigie, of the New South Wales District Court, issued a statement at the time those proceedings were discontinued, in which he briefly summarised the issue. In short compass, if you bear with me for a moment, I will just run through this for you. I do not know how much detail you want me to go into.

Senator WRIGHT: Probably not a lot, actually. That statement was issued and I could probably find that. Given that we are really short of time, I might move on, actually.

Mr Jolliffe: The statement issued by the former director covers the general background, Senator, but not in the specific detail that you have just raised. It was a statement issued on 24 July 2012 and it is headed 'Statement in the matter of David Hicks'. If you like, Senator, we can take the additional questions on notice, if that does not satisfy you.

Senator WRIGHT: Thank you; I would appreciate that. There are probably some answers that I would prefer to hear verbally tonight.

Mr Jolliffe: Certainly.

Senator WRIGHT: I am interested in knowing what evidence formed the basis of the case against David Hicks that was initially instituted in July 2011. 

Mr Jolliffe: Senator, again, I refer to that statement issued by the director on 24 July. I will quickly summarise it for you because, as you have indicated time, is an issue. I quote:

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 with 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. 

Senator WRIGHT: Was that all the publicly available evidence that was relied upon to form the case against David Hicks?

Mr Jolliffe: Technically, in relation to the commencement of proceedings, Senator, a summons was obtained and it was supported by an affidavit. I will not go into the details of what was contained in the affidavit. But the material is as has been summarised in the director's note of 24 July. That summons was filed in late July 2011 and a consent order was made in early August in relation to the obtaining of the restraining order.

Senator WRIGHT: And that would encompass all the publicly available evidence upon which the decision-

Mr Jolliffe: Yes. There are other issues inherent in your question. Again, it is covered briefly in the director's statement. In short compass, the director took that action to restrain any likely dissipation of assets under section 20 of the Proceeds of Crime Act. So it was a restraining order application.
This, of course, was a literary proceeds application, and they are very few in number. In fact, I think this was only the second occasion on which a literary proceeds order had been sought. There are a number of discretionary factors about obtaining final relief under the proceeds act in relation to the final making of a proceeds order, and in section 152 and, in particular, in section 154 of the Proceeds of Crime Act, which sets out a number of factors that the court has to take into account, and that the court may also take into account. So it is entirely discretionary as to the final order. But the restraining order was obtained under section 20 in the circumstances in which I have briefly outlined.

Senator WRIGHT: The Australian government has previously referred to and relied upon two separate investigations, one conducted in 2004 and one in 2005 by US authorities regarding allegations of mistreatment of David Hicks during his incarceration at Guantanamo Bay, Cuba. Did the Director of Public Prosecutions also rely upon these investigations and reports as part of its proceeds of crime case against David Hicks?

Mr Jolliffe: Are you talking about in instituting the proceedings? I have outlined what we relied upon to institute-

Senator WRIGHT: I guess I am asking, to what extent, did the DPP rely upon-

Mr Jolliffe: No, in terms of instituting the proceedings it was the situations that I have outlined.

Senator WRIGHT: In July 2012 the proceeds of crime case against Hicks was dropped. Can you explain why, please.

Mr Jolliffe: Again, in short compass, I have some difficulties in providing some detail to you because when the action was commenced, in the circumstances I have briefly outlined, Mr Hicks's legal representatives then put the director on notice-again, this is briefly outlined in the director's statement-that the admissions contained in the documents that I previously, briefly summarised would be challenged.

At a practical level that meant that we had to deal with two particular provisions in the New South Wales Evidence Act, in particular section 84 of the New South Wales Evidence Act, which relevantly provides that evidence of an admission is not admissible in the court unless the court is satisfied that the admission, and the making of the admission, was not influenced by violent, oppressive, inhuman or degrading conduct, or a threat of conduct of that kind. That is section 84 of the New South Wales Evidence Act; section 138 of the act relevantly provides the court with a discretion to exclude evidence that was obtained improperly or in contravention of an Australian law or in consequence of an impropriety or contravention of an Australian law.

The director carried the onus in relation to this litigation so the director had the burden. When the matter was commenced certain evidentiary materials were eventually filed on behalf of Mr Hicks. I will not go into the details because there is an implied undertaking of confidentiality in relation to the proceedings, because the affidavits were not read in court, so I feel, and the CDPP feels that we are bound by that implied undertaking of confidentiality. So it limits what I can say in terms of the details of the documents. But in essence, in light of the materials that were filed, the director was unable, despite attempts, to obtain the necessary evidentiary material in a form that would meet the allegations made in Mr Hicks's case.

Senator WRIGHT: Can I just clarify. The materials that you just referred to that were filed, were they filed by Mr Hicks's legal representatives? Is that right?

Mr Jolliffe: There was evidence filed in Mr Hicks's case. Can I just explain-to put it in context-that the matter was set down for what is called a 'voir dire hearing'-it was a four-day voir dire hearing-which was schedule to be heard at the end of July this year.

The purpose of the voir dire hearing was to test or challenge the evidence that the director was relying upon-namely, the documents that I have previously outlined-and in particular the certificate of conviction, the transcript of the military commission hearings and the stipulation of fact charge sheet and pre-trial agreement.

Senator WRIGHT: At what time was the evidence you referred to filed by Mr Hicks's legal representatives? When was that filed?

Mr Jolliffe: We had been put on notice of the nature of the challenge in the voir dire, but from memory-and I could take this on notice, if you like, to give you more detail-is that we were provided with initially unsigned documents between January and July 2012.

Senator WRIGHT: Would that constitute the totality of new evidence that came to light between July 2011, when proceedings were instituted, and July 2012 that ultimately cause the case to be dropped?

Mr Jolliffe: Are you talking about evidence filed in Mr Hicks's case?

Senator WRIGHT: No, not necessarily filed on behalf of Mr Hicks, just new evidence generally that may have changed the view of the Department of Public Prosecutions as to the likelihood of success in the case after the proceedings were instituted.

Mr Jolliffe: It is a practical litigation issue really in terms of other materials that we were able to obtain and the evidentiary value of those materials in meeting the evidence that Mr Hicks had put forward or had been put forward on Mr Hicks's behalf. As I said earlier, the director bore the onus in relation to the litigation.

Senator WRIGHT: I am interested in whether evidence came to light or became available to you that was not necessarily filed on behalf of Mr Hicks and could not necessarily be used to challenge the evidence filed on behalf of Mr Hicks, but other evidence through your own investigations that may have caused you to have doubts about the likelihood of success in the case.

Mr Jolliffe: We are not an investigation agency, as you would appreciate, so in relation to any inquiries that can be made we rely on others, whether they be local or domestic or if any international inquiries can be made. All I can say is that the director took the view, as I have indicated and as he indicated in his statement of 24 July, that the totality of the material that we had-in other words, all the material that the director had available-was reviewed and after considering the issues and taking into account as part of that advice from both within the DPP and from a senior counsel who had been retained to advise, factoring all those things in, the director took the view that the proceedings could not be sustained.

Senator WRIGHT: I would be right in thinking that you would be considered to be or required to be a model litigant, is that right?

Mr Jolliffe: Technically we are not bound by but we do apply those rules.

Senator WRIGHT: So if evidence came to light-whether it was filed on behalf of Mr Hicks or whether it came to light in other ways-that was to cause concern about the likelihood of success and other concerns in relation to the conduct of the litigation, you would be bound to take that into account? 

Mr Jolliffe: We review legal proceedings pretty much on an ongoing basis and if there is a concern as to the sufficiency of the available evidence when the office reviews the matter, regardless of the stage that the proceedings have reached, then we would take the appropriate action. As I said, while we are not strictly bound by the model litigant rules we certainly act in accordance with those principles.

Senator WRIGHT: The other thing I am interested in exploring is that, given the circumstances in which it was clearly evident publicly that the nature of the conviction that David Hicks had and the nature of the plea that he made-which was very well publicised at the time and rather controversial-it is not surprising that one of the grounds of challenge to the proceedings by Mr Hicks's lawyers would be that his plea could not be relied upon. I am interested in why it was not until six or seven months after the proceedings were instituted that that started to give pause to the idea that perhaps it would not be possible to be successful in the proceedings.

Mr Jolliffe: As I indicated briefly earlier, the proceedings were commenced with initial steps to preserve the assets from dissipation and that was the restraining order stage. Then, as I indicated, in terms of getting any final orders it was necessary to enter into a series of steps in the litigation process where the judge presiding over the case set timetables for the filing of affidavits in relation to evidentiary issues. Of course, then there was the challenge in relation to the voir dire in terms of the admissibility in the director's case. It played out over a period of months and various pieces of evidence were filed on behalf of Mr Hicks, as I said, between January and July 2012. But I think the director's position was that when he commenced the proceedings he was entitled to rely on the admissions from the United States proceedings that were available to him at the time.

Senator WRIGHT: I am not an expert on section 84 or section 138 of the Evidence Act, but it would be surprising to me, given again what we know about the allegations of coercion and the events that surrounded the final plea that Mr Hicks made under the US system, that there was not some concern all the way through about the reliability of those admissions and the conviction in the Australian courts.

Mr Jolliffe: I would only say that the evidence that we had available at that time to initiate the proceedings indicated that Mr Hicks had entered his plea voluntarily and of his own free will and that he had not entered the plea of guilty as a result of any threat or force. It also indicated that he understood the meaning and effect of his plea. That was available to us at the time we commenced arising out of those documents that I briefly referred to earlier. 

Senator WRIGHT: Finally, please provide the total cost of legal fees incurred by the Australian government in relation to the proceeds of crime case against David Hicks.

Mr Jolliffe: Are you talking about the direct legal costs? There would be a lot of other investigation costs et cetera. I could take that on notice.

Senator WRIGHT: I appreciate that you probably will need to take that on notice; I would like that. But I think the direct and the indirect costs would be of interest to me and to many others.

Mr Jolliffe: The director would be aware of the costs to the office in terms of legal costs. The indirect cost to the wider Australian government might be a separate issue entirely.

Senator WRIGHT: Are you in a position to tell me the direct legal costs that were incurred in that case?

Mr Jolliffe: It might be best for me to take it on notice. I will be much more easily able to ascertain those costs for you than I will be the indirect costs that might be associated with the entire litigation.

Senator WRIGHT: Are you in a position to provide that now? I appreciate that you would need to take the indirect costs on notice, but are you in a position to give any sense of the direct costs at this point?

Mr Jolliffe: I can tell you, on the note that has just been brought to my attention, the CDPP spent approximately $165,618 on counsel and administration costs.

Senator WRIGHT: I ask you to take notice the other part of the question.

Mr Jolliffe: The wider costs: I think we might need some further assistance from other agencies in relation to those.

Senator WRIGHT: Thank you.

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