Oz Politics Blog

Background
On Friday 27 May 2005, Schapelle Corby was found guilty of importing 4.1kg of marijuana into Bali. The marijuana was found in a transparent plastic sack that was inside another plastic sack in Corby’s unlocked boogie board bag at Bali’s Ngurah Rai airport on October 8 last year. She was sentenced to gaol for 20 years and asked to pay a fine of 100 million rupiah (almost $14,000). If the fine cannot be paid, Schapelle will serve an extra six months in gaol.

Issues
For me, the case raises three issues. The first is Schapelle’s guilt or innocence. The second is the capacity of the Indonesian legal system to determine her guilt or innocence. And the third is the size of the penalty.

Discussion
Guilt or innocence
As an external observer, it is impossible to determine whether Schapelle is guilty or not.

Her defence painted her as the hapless victim of a network of corrupt Australian baggage handlers, who were shipping drugs from airport to airport in the baggage of travellers. I find the notion of a network of corrupt baggage handlers plausible, but not compelling. And with a street value of $8000 at stake, I would be surprised if the baggage handlers were that careless to send it on the wrong flight to the wrong destination.

This explanation also begs the question about why the ‘drug overlords’ would distribute their merchandise using the airport system, with its heightened (post 2001) security and multiple x-ray checks, when couriers on Australia’s rail and bus network would be subject to less scrutiny. Another point overlooked is that the oher allegations in respect of the Australian baggage handlers relate to the distribution of cocaine, not marijuana.

In the popular media the primary argument for Schapelle’s innocence was the irrationality of importing coals to Newcastle. Apparently, marijuana is readily available in Bali at a fraction of its Australian price, and importing it would not be economically rational. While this may be the case for ‘leaf and stem’ marijuana, it does not appear to be the case for hydroponically grown buds:

An Australian who says he has lived in Bali for 15 years contacted the Herald several times to say his children were often offered marijuana called “Aussie gold”. The man, who refused to give his name, said the “hydroponic bud” from Australia sold for $600 an ounce or as much as $20,000 a kilogram.

Top-quality marijuana in Australia sells for about $8000 a kilogram although more when broken into smaller amounts. (SMH)

The further argument put is the fear of the penalty would have precluded Schapelle’s involvement. No-one would be stupid enough to take drugs to Bali knowing the death penalty could be applied. The statistics are a testament that some make a different assessment of cost, risk and benefit.

Across Indonesia, the number of arrests for drug trafficking rose from just over 1800 in 1999 to more than 9700 in 2003, the national narcotics agency, BNN, says. The agency estimates that drug addiction afflicts 3.6 per cent of the nation’s 220 million people, with an increasing number of juvenile users. (NZ Herald)

The drugs were in Schapelle’s bag. The market in Indonesia for high quality marijuana provides a better return on investment than the Australian domestic market. And not all drug traffickers are deterred by the possibility of the death sentence. It is therefore plausible that Schapelle was guilty (in legal speak, there was a strong prima facie case against her). This brings us to the second issue, was the Indonesian legal system able to determine her guilt?

The Indonesian legal system
Many have argued that while the Indonesian legal system found Schapelle guilty, the Australian legal system would have given her the benefit of reasonable doubt. There are three lines of argument here: first the Australian legal system has a presumption of innocence, while the Indonesian system has a presumption of guilt; second, the standard of evidence accepted by the Indonesian legal system; and third, judicial corruption.

The arguments around the presumption of innocence are largely a misunderstanding. Tim Lindsay and Simon Butt noted on 2 May 2005,

It has been widely asserted that Indonesian law presumes defendants guilty and requires them to prove their innocence. This issue is critical in the Corby trial because, if a presumption of guilt applies, then she faces conviction if she cannot explain how the drugs came to be in her bag. If, however, the presumption of innocence applies - as it does in Australia - then Corby should be freed if the prosecution cannot provide sufficient evidence to satisfy a judge that she is guilty. Despite persistent claims that Indonesian law presumes guilt, the fact is it does not. Indonesian law places the burden of proof on the prosecution and provides for a presumption of innocence similar to that which applies in Australia.

Article 8 of the Indonesian Judiciary Law and Article 18 of the Indonesian Human Rights Law state that every person who is arrested, detained, charged or brought before a court has the right to be considered innocent until proven guilty. Article 66 of the Indonesian Code of Criminal Procedure likewise provides that “the obligation of proof is not to be imposed upon the accused or defendant”.

Another furphy is the assumption that because Indonesia does not have juries, trials are inherently unfair. The absence of juries is a feature of the European-derived Civil Law tradition, which is followed by most countries, including Indonesia.

The common law jury system - followed by former British colonies like Australia - is less prevalent, and even in Australia most criminal matters are dealt with at the District (magistrate’s) Court level, where most defendants waive their right to a jury.

More recently Tim Lindsay noted,

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.

The issues of incompetence and corruption have also been raised. The question of incompetence goes to why the transparent bag was not fingerprinted and why the contents were not laboratory tested. The short answer to both is probably the strength of the prima facie case and the level of resources available to Indonesian customs and police. While these tests may have been applied in Australia, it is difficult to see how (for example) the absence of Schapelle’s fingerprints would have proved her innocence. All that would have been argued by the defence is that she used rubber gloves to pack the bag.

On corruption, Sian Powell noted,

Indonesia is notoriously corrupt, routinely languishing at the bottom of international corruption indexes. The judicial system, too, undoubtedly has rotten elements, especially in connection with large civil cases. But no charges of corruption have been levelled against the three judges in Corby’s case, who have listened gravely and courteously to all the witnesses and allowed the defence to submit last-minute documents.

It is reasonable, therefore, to conclude that an Australian court may well have found Schapelle guilty if it had the same evidence before it. (This is not to say that Schapelle is necessarily guilty in fact, or that a stronger defence team may have secured a different outcome). The final issue that remains is her sentence.

The penalty
Like most Australians I found the size of the penalty surprising, particularly given the prevalence of marijuana use in Australia. The 2001 National Drug Strategy Household Survey found,

In 2001, marijuana/cannabis was the most commonly used illicit drug in Australia: over 5 million Australians aged 14 years and over had used this drug in their lifetime.

About one-third (33.1%) of the population aged 14 years and over had used marijuana/cannabis in their lifetime:

• Males (15.8%) were more likely than females (10.0%) to have used marijuana/cannabis in the last 12 months.
• Approximately 1.2 million people aged 14 years and over had used marijuana/cannabis in the last month. A higher proportion of males (10.3%) than females (5.3%) had used in the last month.
• Almost 900,000 Australians aged 14 years and over had used marijuana/cannabis in the last week. Again, a higher proportion of males (7.6%) than females (3.7%) hadused in the last week.

However, the argument that the judges showed no mercy needs to be assessed in context. Schapelle did not receive the death penalty (which was possible), nor did she receive imprisonment for the term of her natural life (a point the defence team will appeal). Here Tim Lindsey said that Corby was fortunate not to get a life sentence.

There’s no question that this is a remarkably light sentence for what is in Indonesia a serious narcotics crime.

And I actually think we will probably hear a lot of protest from the Indonesian anti-narcotics movement … it’s not a light sentence in Australia but it’s a light sentence for Indonesia and indeed the ASEAN region all of which maintain the death penalty.

To use Australian parlance, Corby got the Indonesian equivalent of a slap on the wrist. As has been noted in the last 24 hours, an appeal by Corby risks a heavier sentence — either the death penalty or life imprisonment.

Ultimately, while I disagree with the scale of the penalty, I also must accept Indonesia’s sovereignty, and its right to set punishments to fit crimes as they see them. The old aphorism applies, ‘when Australians go abroad they are subject to the justice system of the countries they visit’.

Conclusion
I am agnostic on the question of Schapelle’s guilt. I have not seen anything that compels me to believe her story (or at least give her the benefit of the doubt). It is likely that courts in Australia would have come to the same conclusion on the evidence presented. It is a moot point whether a stronger defence legal team would have secured a different outcome in Indonesia (or Australia for that matter). While I think the penalty excessive, I respect Indonesia’s right to impose the penalty it thinks appropriate.

Update: Nic White has a good piece on Schapelle-mania.

Update 2: The Australian on 1 June 2005 had three good artciles on Schapelle-mania from Paul Kelly, Emma Tom and Janet Albrechtsen.

Update 3: Ken Parish at Troppo has gone over the ground again.