http://www.smh.com.au/news/World/Sunk-by-defence-team-that-didnt-rise-to-the-challenge/2005/05/27/1117129897865.htmlThe decision by the Denpasar District Court to sentence Schapelle Corby to 20 years in jail was not surprising, given the evidence against her.
The prosecution established a prima facie case against her relatively easily. There was no dispute that the cannabis was in her bag when it was opened at Bali’s Ngurah Rai Airport. Their witness said Corby had admitted it was hers. She denied this – as might be expected, regardless of whether she was guilty or innocent.
The Indonesian system has enshrined the presumption of innocence in legislation as a human right, but once a prima facie case is established – that is, the minimum required to establish the elements of the charge – the burden effectively shifts to the defence to counter the prosecution case. This is true of almost all legal systems, including, in most cases, our own. Corby’s main problem was that her defence team did not rise well to the challenge of countering the prima facie prosecution case by proving her baggage-handler hypothesis.
Her lead Indonesian lawyer, Lily Lubis, is young and relatively inexperienced and this was, reportedly, her first drugs case. She seemed frequently out of her depth and broke down in tears in court. The key evidence she presented was given little weight, as would likely be the case in Australia, because it was either not directly related to Corby’s circumstances or was unreliable.
The evidence of John Ford, the remand prisoner who claimed to have overheard jail conversations regarding a drug ring that planted the drugs in Corby’s bag, was hearsay. He lied to the court about seeking a remission in Australia and refused to name the alleged ringleader. He admitted that most of what he said was “opinion”, which in Indonesia, as in Australia, can be given only by an expert.
The evidence of Scott Speed, an Australian baggage handler, about airport corruption did not relate directly to Corby’s circumstances. This was true also of the Department of Foreign Affairs and Trade letter, which comprised allegations of baggage-handler corruption, not yet tested or proven, by a person who lacked personal knowledge and which again did not tie directly to Corby.
Judges must make their decision solely on the evidence before them. Chief Judge Linton Sirait and his colleagues – whatever their record before this trial – had not much basis on which to enter a not guilty verdict.
This means that Corby’s inevitable appeals will face problems unless new, more compelling evidence is found. Here time will be of the essence. She will go first to the Denpasar High Court and then to the Jakarta Supreme Court. If she fails there, she could ask for an internal review, or PK. At both levels, the courts simply review documentary records from the lower courts, but they can hear new evidence or call witnesses. The High Court should decide her appeal within 150 days and the Supreme Court within 170 days. The PK has no time limit. Corby should now be hoping that both courts take their time, so that inquiries and prosecutions into airport corruption in Australia can produce new evidence.
Failing new evidence, Corby’s best hope is that the higher courts take a more critical view of the failure to obtain fingerprint evidence from the cannabis bag. She would be well advised to hire experienced Jakarta lawyers who can make more of forensic evidence than did her weak Denpasar team.
If all else fails, Corby will be left with the final option of seeking clemency from the President. This is the last resort, as it implies an admission of guilt.
It is hoped that the bizarre letter she sent last week to the President, begging to be released, won’t be read this way.
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Fact & Fiction In The Corby Case By Tim LindseyThe Sydney Morning HeraldMay 27 2005http://www.smh.com.au/news/Opinion/Fact-and-fiction-in-the-Corby-case/2005/05/26/1116950819084.html
What would otherwise be a relatively unremarkable drugs trial in a foreign country has now become the major national story in Australia. The Australian defendant has rapidly become a martyr figure. Popular reaction to the trial – supporting Schapelle Corby and demonising Indonesia, for the most part – has become so extreme that it is now a national political issue.
This public pressure has pushed the Federal Government into unprecedented intervention on behalf of an Australian overseas. The Government has written a letter supporting Corby’s defence, sent a string of ministers to Jakarta, and has begun negotiations for a prisoner exchange treaty – even seeking a one-off exchange agreement for Corby before she has even been convicted of anything.
This is extraordinary, given that government responses to Australians in legal trouble overseas are generally limited. Consular representatives are usually careful not to be seen to be intervening in the judicial system of a foreign country and often will not make representations until after a sentence is imposed.
The Government consistently says it is not doing anything unusual in Corby’s case but that is clearly not the case. The support she has received appears far in excess of what has been provided in the past to other citizens facing drugs charges and the death penalty, including ethnic Asian Australians arrested in Vietnam.
The Government response reflects the popular hysteria in Australia asserting Corby’s innocence and condemning Indonesia: she is obviously innocent and the Indonesian system is obviously pathetic; their judicial system stinks; I will never travel to Bali again. The sense of aggressive certainty in these assertions is disturbing, for several reasons.
First, it is based on a conviction of Corby’s innocence that leaves no room for a judicial proceeding that will examine the evidence and conceivably come up with a different view. Instead, it assumes the system must be at fault, and so Indonesia’s very different and emergent civil law judiciary has been grossly misrepresented and demonised.
Second, the popular pro-Corby position is so uncompromising and emotive that it portrays any alternative view as the product of malice or stupidity. The wave of vituperative abuse that engulfed Derryn Hinch when he said publicly that he thought Corby was guilty is a good example of this, as are the abusive emails I have received since I started suggesting publicly that the evidentiary basis of Corby’s defence was weak.
What Australia is seeing here is a sort of counter-version of what happened to Lindy Chamberlain: a popular emotional prejudgement as to a person’s guilt or innocence that creates a political storm and leaves little room for the law to take its course, even if distorted by political pressure. In the process, rationality begins to suffer; so does policy and, in this case, our image in the region.
The death penalty – rejected in Australia decades ago – is a good example of this. It is proper for Australia to oppose the death penalty overseas, and in particular when it is imposed on Australian citizens, but we now have a credibility problem in doing so in Indonesia.
When Bali bombers Amrozi, Muhklas and Imam Samudra were sentenced to death by the same court that is trying Corby, this was widely celebrated here, with some Australians offering to pull the trigger or burn them alive, and our Government indicating that execution was appropriate. In light of this, how can our Government now claim that death is a barbaric punishment, as popular opinion has it, if it is imposed on Corby or, as is more likely, the Bali nine?
Is it that Australia has changed its policy so that death is now acceptable for some crimes and not for others? The double standard on the death penalty feeds South-East Asian anxieties about neo-colonial, arrogant and racist attitudes in Australia and perceptions that we are the insular and xenophobic white tribe of Asia.
There is a lesson to be learnt from this: what happens in Indonesia directly affects Australians. Whether it is war, terrorism, trials or tsunamis, Australians will always be part of what happens to our near north.
It is time we focused more on building links, on repairing the catastrophic decline in Indonesian studies and language skills in Australia and engaging, rather than demonising and shunning, a neighbour, just because it has an Australian on trial.
Tim Lindsey is professor of Asian law, director of the Asian Law Centre at the University of Melbourne. Additional research by Piers Gillespie, a research assistant.