A number of readers have emailed urging me to say something about the bloody Schapelle Corby case. God knows why they’d want to read yet another pundit whittering on about it; surely Schapelle has already consumed enough column centimetres for even the most hardened legal soap opera addict. Not to mention the fact that all that moronic, manufactured hysteria about the case seems now to have provoked some even bigger lunatic into a letter bomb biological attack on the Indonesian Embassy. If I never hear anything more about Schapelle Corby it will be too soon.
In fact I have previously blogged about her case here, where I said:
Corby was caught red-handed with 4 kilos of gunja in her boogie board bag, which she (allegedly) initially refused to open when challenged by Customs at Denpasar airport. That would be sufficient evidence to sustain a possession charge in any part of Australia, in the absence of a cogent defence. And Corby hasn’t produced one.
Shouting hysterically that “it must have been planted” doesn’t amount to a defence in Australia any more than (one suspects) it does in Bali.
Various legal experts have subsequently agreed with my position i.e. we can’t by definition know positively whether Corby is in fact guilt or innocent, but there was certainly sufficient evidence to find her guilty, even in an Australian court.
Asian law expert Tim Lindsey made this point recently, as yesterday did highly respected Federal Court Justice Ronald Sackville:
First, apart from Corby herself and perhaps a few others, no one knows for sure if she is guilty or innocent.
Not her most fervent supporters. Not the media commentators who assert or assume her guilt or innocence. Not the Government or the Opposition. They may have strong opinions, but they do not know.
Second, there was enough evidence presented to the Indonesian court to make it a matter for the judges to decide whether or not Corby was guilty of the offences with which she was charged.
Notwithstanding the presumption of innocence, having a large amount of a prohibited drug in a person’s luggage is ordinarily enough to establish a prima facie case against an accused in any legal system.
This is so whether the ultimate decision is made by juries (as in Australian superior courts) or by a panel of judges (as in Indonesia).
I couldn’t agree more. It’s difficult to avoid concluding that the people who are so vehement about Corby’s innocence and imagined unfair treatment at the hands of the Indons are mostly motivated by an unattractive combination of racism and an ignorant belief that a young pretty woman with a Fountain Lakes moniker, big tits and a talent for strategically-staged histrionics couldn’t possibly be guilty.
Some commentators, even some you’d expect to know better (like Graham Young) seem to labour under the misapprehension that the Indonesian legal system (which is derived from European civil law) doesn’t have a presumption of innocence in criminal cases. That simply isn’t correct, as Tim Lindsey explains here. Certainly it appears that the onus of proof may shift formally to the defence once the prosecution has made out a prima facie case, but in effect that’s also true in British-based systems like ours. In Australia too, once the prosecution had proved Corby had the drugs in her possession and adduced evidence that she refused to open the bag and said words which (if the evidence was believed) meant she knew the gunja was there, Corby would effectively bear the burden of establishing a specific defence or negating that evidence (which she manifestly failed to do).
Other commentators suggest that the fact the judges in the Bali court allowed cameras and a mass of jabbering media into the courtroom, or the fact the judges were willing to answer media questions, somehow proves that the Indonesian system is hopelessly primitive and corrupt. But these are merely unimportant differences in the political and legal culture; they say nothing at all about the integrity or sophistication of the Indonesian legal system. Anyone who has taken any notice at all of the current Michael Jackson trial in the US would realise that it too has a quite different legal culture and traditions than Ausralia. It would be impossible to deny that Indonesia, despite its impressive democratic reform process, doesn’t still have some serious corruption problems, or that they sometimes affect the judiciary. But no-one has presented any credible basis for concluding (or even suspecting) that the Bali judges hearing the Corby case were either corrupt or incompetent.
At least some libertarian critics like Professor Bunyip seem to approach the issue from a vaguely principled position i.e. marihuana is a relatively harmless drug whose possession shouldn’t even be illegal let alone punishable by death or life imprisonment. However, their arguments of principle would be somewhat more convincing if they campaigned against US federal authorities as vehemenetly as they are doing against Indonesia. The Americans are the major international upholders of the War against Drugs strategy. If a poor country like Indonesia dared to legalise or even decriminalise marihuana it would almost certainly face heavy pressure and possibly even trade sanctions from the US.
I’m not suggesting that Corby hasn’t suffered injustice, however. But if she did, it wasn’t the fault of the Indonesian legal system. It appears that there is significant evidence of organised drug smuggling through Ausralian airports, but that it wasn’t made available to Corby’s defence team at an early enough stage to do her case any good. Whether that’s because they didn’t ask through the correct channels or because it would have jeopardised police investigations to disclose the evidence prematurely isn’t entirely clear. You would think that Australian authorities could at least have told Corby’s lawyers at an early stage that there were some ongoing investigations that couldn’t yet be disclosed but which might ultimately prove relevant to Corby’s defence, and that therefore they would be well advised to seek an adjournment of the trial until police had finalised matters. Whether an adjournment would have been granted in those circumstances is unclear, but I see no reason why the Federal Police could not have communicated with Corby’s legal team in those terms without compromising their investigation.
Nevertheless, it remains unclear whether the evidence of organised drug smuggling through Australian airports will in fact prove especially helpful to Corby’s defence anyway (even if she was being tried under Australian law). The smuggling racket exposed so far seems to be exclusively international, and involve harder and more high-yielding drugs like cocaine and heroin. As I’ve commented previously, it isn’t at all obvious why domestic drug smugglers (as opposed to international ones) would take the extraordinary and totally unnecessary risk of smuggling gunja in the luggage of unsuspecting airline passengers, when they could do so far more simply and with little or no risk through transporting it by road. On the other hand, the reported (and corroborated) evidence of some Bali tourists who found gunja in their luggage on arrival at ther Kuta hotel some 7 years ago suggests that Corby’s story isn’t utterly implausible or unheard of. But again this evidence wasn’t placed before the Bali court during Corby’s trial AFAIK.
Readers whose Corbymania still isn’t satiated could do much worse than read this post by political science blogging guru Bryan Palmer. Bryan has done the hard yards on Corby, and I agree with pretty well everything he says. Now back to marking endless essays.