The Schapelle Corby case has had at least one worthwhile effect. It has drawn attention to the importance of the rule of law and the rights of people accused of criminal offences.
It seems that a lot of people rushing to judgment are thinking: “Gosh what if that was me? What if someone put a wad of dope in my luggage and I was facing life imprisonment?”
That should lead people – whether in Australia or overseas – to value more the fundamental rights of those charged with criminal offences: the presumption of innocence; procedural fairness; the right to access to a lawyer; the right to remain silent; the right to be charged or set free and to be brought before a magistrate as soon as possible if arrested and not bailed; the right to legal representation; the right to know the case against you and the right to bring witnesses and to cross-examine prosecution witnesses; a right to appeal – and so on.
These rights have often been belittled by the hang-‘em-high brigade and the shock jocks who decry lawyers’ tricks that “get criminals off”. And notice that these are the same shock jocks who are now championing “Our Schapelle” with counter-productive slurs against the Indonesian President and court system.
I wouldn’t argue that the Indonesian justice system is perfect. But then again the Australian-British system has had a few shockers – Lindy Chamberlain, Ziggy Puhl, Timothy Evans and others.
What would happen to someone in Corby’s position in Australia, as distinct from Indonesia? She arrived in the country and a large amount of prohibited drugs was found in her luggage. Inevitably, she would be charged. It is a pretty strong prima-facie case, so she would probably be committed for trial.
The wording of the charges and the offences are fairly similar in Australia and Indonesia.
In Australia under various state and federal criminal codes the wording is typically: Anyone “who imports, or attempts to import” into Australia any of a list of prohibited drugs “shall be guilty of an offence” and “shall be liable to imprisonment for life”.
Notice, the wording does not provide for any knowledge or intention. On its face, if the drugs are in your luggage you have had it.
But that is not how the Australian courts have interpreted these provisions in cases, like Corby’s, where the defendant asserts innocence, no knowledge of the drugs and asserts that they must have been planted.
Twenty years ago, when Australia was going through a tough-on-drugs phase, the High Court ruled on the interpretation of these offences whose wording does not seem to excuse innocent importation.
In a case called He Kaw Teh (SUBS: make sure this is spelt T-E-H. Microsoft is autocorrecting it) v The Queen, the High Court said the words of the offence might suggested that “no reasonable excuse will avail a person who imports narcotics”. However, Chief Justice Harry Gibbs (no bleeding-heart leftie) said, “That would lead to an absurdly Draconian result if it meant that a person who unwittingly brought into Australia narcotics which had been planted in his baggage might be liable to life imprisonment notwithstanding that he was completely innocent of any connexion with the narcotics and that he was unaware that he was carrying anything illicit.”
All five judges held that He Kaw Teh’s conviction should be quashed and a new trial ordered.
No doubt at the time it would have drawn criticism from the tough-on-crime lot as legal tricks allowing crims to get off and another example of the courts usurping the plain words of Parliament.
In Australia, the general principle is that in serious matters the prosecution must prove some sort of guilty intent. The prosecution has to prove this by drawing inferences from the circumstances, because no-one can go into someone else’s mind. These might include what was said at the airport; descriptions of the accused’s demeanour and utterances by witnesses (including customs officers); whether there is a reasonable explanation of the presence of the drugs; motive (usually profit, addiction or use by self or friends); associates; criminal history and so on.
The Indonesian court is looking at some or all of these things.
Nonetheless there are some disquieting things about the Indonesian process. These include Bali Chief Judge Linton Sirat’s comment that: “I’ve been handling more than 500 drug cases but I have never acquitted one.”
The failure of the customs officers to handle drugs packet properly is a worry. They did not use gloves. They put their fingerprints all over it in a way that denied the defence the opportunity to do finger-printing that might support Corby’s assertion of planted drugs – other people’s prints would be all over it and hers would not.
The failure to record conversations once they knew they were on to something is also a worry.
The circumstance of the illogicality of taking drugs to a place where they are less valuable and that the amount was way beyond what the accused or friends could use would raise the bar a bit higher for the prosecution in Australia because it removes some evidence of motive and intention. Whether that cuts any ice in Indonesia we will find out today.
The fact that Indonesia has a variant of Roman Dutch law (a funny foreign system) and does not have juries is not of huge moment. At least Corby will get reasons from the judges for their decision – something she would not get from an Australian jury. If convicted she will have a right to appeal. And as we have seen in the terrorism cases, it is not a sham appeal.
crispin.hull@netspeed.com.au
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