Where in the world could a jury find in favour of someone, only to have a judge deliver a decision opposite to the jury's finding? Well, this has happened in NSW and the victim is Mamdouh Habib, best known for being imprisoned by the US military without charges at its Guantanamo Bay naval base, before being released and flown home to Australia in January 2005.
In February 2006, a NSW Supreme Court jury found that Habib had been defamed by an article by Sydney Daily Telegraph columnist Piers Akerman implying Habib had falsely made claims about torture following his arrest in Pakistan in 2001.
Over a year later, on March 7, NSW Supreme Court judge Peter McClellan ruled in favour of the Murdoch family's Nationwide News, the publisher of the Daily Telegraph. Based on testimony from the Australian Federal Police and ASIO, McClellan found that in some media interviews, Habib had knowingly made some false claims about his experiences and because of these allegedly false claims, the newspaper's article was substantially true.
The AFP and ASIO agents had testified that they hadn't seen any signs of torture on Habib while he was under arrest in Pakistan, and that he had never said anything about it when they witnessed him being interrogated by Pakistani police. Habib testified that he'd been told by Pakistani police not to talk about his treatment in custody or he'd face even worse treatment.
This was obviously a false statement, as the Pakistani police have an impeccable record of never having threatened anyone in their custody with torture — as obviously false a statement as the claim in the US State Department's February 2004 review of Pakistan's human right situation that, "Security force personnel continued to torture persons in custody throughout the country", including "beating; burning with cigarettes; whipping the soles of the feet; prolonged isolation; electric shock; denial of food or sleep; hanging upside down; and forced spreading of the legs with bar fetters".
"Justice" McClellan said he believed that the experiences Habib had suffered in custody were "traumatic", but, "I am satisifed that Mr Habib's claims that he was seriously mistreated in the place of detention in Islamabad cannot be accepted… I have reflected at length on his evidence and have ultimately concluded that I cannot accept the allegations of mistreatment in the detail which he gave the evidence in this court."
Why? Because, he hadn't given such accounts in other interviews. "I can only conclude that this evidence was given in order to enhance his forensic position in the present litigation", said McClelland. "That does not mean that I have concluded that these events did not happen, but merely that I cannot be satisfied that they did happen."
After the judgement, Habib said it had not come as a surprise. Since he had returned to Australia he had been subjected to a continuous harassment by federal government agents and the NSW Police, and vilification by sections of the corporate press.
They never could accept that, after being tortured in Pakistan, Egypt and Guantanamo Bay, he could came back and stand up, not only for his rights, but also defend the human rights of innocent victims the Washington-Canberra "war on terror".
The Canterbury Bankstown Peace Group, of which Habib is member, is keeping up the fight for justice. Its members have written letters to Prime Minister Kevin Rudd, Attorney-General Robert McClelland, and home affairs minister Bob Debus demanding a public inquiry into the former Howard government's abuse of the human rights of Habib, David Hicks and Mohamed Haneef. So far, beside a polite letter of acknowledgement, the only response has been the opening a very limited inquiry into the Haneef case.