KEY POINTS:
David Hicks' guilty plea to the charge of providing material support to terrorism has done nothing to quell the debate about his guilt or innocence.
The spin that is being put on the plea negotiations by Hicks' supporters, including Senators Natasha Stott Despoja and Bob Brown, was inevitable.
They contend that Hicks' plea has nothing to do with his culpability. Rather, they claim that he was forced to cut a deal because he was broken by the oppressive conditions in Guantanamo Bay and his admission of guilt was a desperate measure to remove himself from United States military detention.
Under a plea bargain deal, Hicks will serve only nine months of his seven-year sentence, and will do so in Australia.
He has agreed to withdraw allegations of abuse at the hands of US authorities before or after his arrival at Guantanamo Bay. He also agreed not to speak to the media about the case for a year and to co-operate with US and Australian intelligence agencies.
After that year is up, he may start doing the speaking rounds to his growing tribe of fanatical civil libertarians who will continue to unremittingly proclaim the innocence of their champion.
So what are we to make of the suggestion that Hicks is actually innocent?
One thing that is clear is that it is inappropriate to uncritically accept the self-serving comments by Hicks' lawyers that his resolve to contest the charges was affected by his being subjected to cruel and inhumane treatment, including torture, in Guantanamo Bay.
The Hicks team steadfastly maintained that none of the allegations could be assumed until proved before an independent tribunal. Logically, this means that no allegations of wrongdoing can be assumed until they have been properly tested.
That must include allegations that the US Government has violated international legal norms regarding the treatment of prisoners.
While many allegations of serious mistreatment of prisoners have been made in regard to Guantanamo Bay, none have come from credible, disinterested sources.
Ultimately, the only rational inference to be drawn from Hicks' plea is that he is indeed guilty as charged.
There remains room for some scepticism on this front, because of the heavier penalty he would have received had he been found guilty after contesting the charge.
However, it is misguided to overplay the level of doubt that surrounds his guilt. This would be at odds with the manner in which we approach the guilt of people who plead guilty in Australia.
The pressures on Hicks to plead guilty, while perhaps different in degree, are no different in nature to those charged with garden variety serious offences in Australia.
Cumulatively, these can be so overbearing that sometimes even innocent people plead guilty.
The pressures come in a variety of forms.
First, at the sentencing stage, accused who are found guilty after contesting a charge receive a higher penalty than those who plead guilty.
The discount for pleading guilty varies across the Australian jurisdictions but often it can be up to a third.
By serving his sentence in his homeland, Hicks has the advantage that he can be visited by friends and family.
But accused in Australia have the added pressure that if they go to trial they risk losing their life savings. Criminal trials often run into weeks and sometimes months. Defence fees regularly balloon into the hundreds of thousands of dollars.
Unlike civil matters, if an accused wins the trial they can't get a portion of their costs refunded.
Moreover, it is not uncommon for accused in Australia to spend two to three years in jail waiting for their trial to proceed. Not quite the five years that Hicks has served, but certainly within the ballpark figure.
If such people are ultimately found to be innocent, no compensation is awardable.
It is notoriously difficult to get reliable data on how many innocent people plead guilty as a result of such pressures. The best data comes from research carried out in Britain for the Royal Commission on Criminal Justice, which suggests that 11 per cent of those who plead guilty claim innocence. That figure is likely to be inflated given that accused have an interest in protesting their innocence.
Yet, as the commission noted, the risk of innocent people being pressured into pleading guilty cannot be avoided, and although there can be no certainty as to the numbers it would be naive to suppose it doesn't happen.
There are sound pragmatic reasons for maintaining the sentencing discount for offenders who plead guilty. It saves taxpayers the cost of running expensive trials and spares victims the turmoil of reliving their experiences in court.
But there are no principled reasons for not compensating accused people who beat criminal charges for their legal fees and time served in custody.
People wrongly charged with serious criminal offences in Australia will continue to have undue pressure applied on them to plead guilty until legislation is introduced in all jurisdictions to remedy this situation.
* Dr Mirko Bagaric is a lawyer and author, whose books include Australian Sentencing.
