Like lots of others, I’m not too happy about the Corby case. But I think most of the complaints from Australia have been misdirected. The problem is not with the trial which, while not as procedurally tight as the Australian equivalent, seemed basically fair[1] to me. The real problem is with Corby’s twenty year sentence. The likely imposition of the death penalty on the Bali heroin smugglers is even worse.
The reason that attention hasn’t been focused on this issue is that, as a society, we’re fairly hypocritical about the war on drugs. At one level, we recognise that it’s essentially pointless and unwinnable, like a lot of wars. So we’ve gradually backed away from lengthy prison sentences for bit players, and even abandoned the idea that the capture of a few “Mr Big Enoughs” would make any real difference. But it’s still convenient for us that our neighbours should have draconian laws, the burden of which falls mainly on their own citizens. It’s only when a sympathetic figure like Corby gets 20 years for an offence that might have drawn a good behavior bond in Australia, or when some stupid young people end up facing a firing squad that the contradictions are exposed.
fn1. That is, as fair as other drugs trials. The nature of the war on drugs is that normal legal principles have to be suspended if the law is going to be made to work at all. The routine use of procedures bordering on entrapment, and the effective reversal of the onus of proof, once possession is established, are examples of this, in Australia just as much as in Indonesia.
John Quiggin 
Do you think Corby would have been convicted in an Australian court with a decent defense team? Particularly in light of recent facts about the lax baggage handling procedures here?
If your answer is “no” then how can you say the trial is “basically fair”?
[…] ed up in Asia on drugs charges. (Quote care of The Hack) Postscript… John Quiggin points out our hypocracy. No Co […]
Who’s to say that in fact she would have got a decent defense team in Australia? Incompetent lawyers are not confined to Indonesia. And on the evidence we’ve seen she probably would have been convicted in Oz – especially as she would have had neither the massive favourable publicity nor a generous bankroller hoping to sell her story to the women’s magazines.
Mick Kelty’s right – the baggage handler story is basically a furphy (the suspect handlers were handling *incoming* baggage, and were part of a ring with a very different MO). And her version of the story has some definite holes.
I really don’t know whether Corby is guilty or not – but then neither do you, anon. And yes, the trial seemed basically fair. John’s point about the hypocrisy of the War on Some Drugs, though, is right.
Well said, John. The question of guilt must be for the court. We can have no useful opinion on it.
The sentence is different. It is somthing I am deeply opposed to. No matter in which country it is used. (It has been described as surprisingly light by such as Professor Tim Lindsey.)
Derrida, I never claimed she was innocent, only that I doubt she would have been found guilty here, which calls into question the OP’s claim that the trial was “basically fair”. The only “basically fair” thing about it that I can see is that the judges are at least consistent: they never acquit.
They caught suspect handlers over incoming baggage, but that raises plenty of doubt about the whole baggage handling process. And there was plenty more doubt raised in the media – for example the lax security procedures governing the baggage handlers.
Also, it is highly unlikely that if she had been caught in Australia her bags would not have been fingerprinted. And had they not been fingerprinted, that would have been a strong arrow in the defense quiver.
In future, instead of my usual “yes” in response to “did you pack your bags and have they been in your possession since then” at the checkin counter, I will be saying “yes, and will you please indemnify me against any tampering by your baggage handlers otherwise I’m carrying the lot on with me”.
I am not sure how the drug trafficking laws are drafted in Indonesia. For certain kinds of offences, absolute liability applies, meaning there is no requirement for the judge to be convinced of an intention to commit an offence.
In Australia, a well understood example of an absolute liability offence is speeding offences.
In a country where drugs are a serious problem, these laws in effect make it an offence of negligently allowing drugs to be imported into the country. The news reports don’t seem to be indicating this. Does anyone have the text of the judgement?
“The question of guilt must be for the court. We can have no useful opinion on it.”
Speak for yourself, wbb.
After watching the verdict being handed down and the way the whole case was summed up I was very unimpressed. It may have been fairly tight in terms of procedure, but it didn’t get within a bulls roar of being fair.
In the judges opinion the drugs were found in her bag, therefore she is guilty of importing them, because she was unable to prove that someone else in particular did it. Any evidence that someone else could very possibly have done it was disregarded.
It really seemed like a conclusion where no one would be jailed was unacceptable. The evidence was far from conclusive, but someone had to carry the can.
I know very little about the indonesian legal system. Is it normal there for the defendant to have to prove that they are innocent and that someone else is guilty? Is there a requirement for proof beyond reasonable doubt?
She may be guilty, I don’t know. The trial was basically fair, but the way the judgement was reached was not.
The generous bankroller is a problem particularly as he seems to owe more money than he has (Bulletin) It is to be hoped that Schapelle, when she goes to appeal accepts this time the Australian government’s offer of 2 experienced QC’s to assist in her defence, something she apparently chose not to do for the trial. Mr Bakir?
Listening to the judges summing up he did not as I recall address the issue of intent rather went through the incriminating and exculpating evidence and concluded that she had flouted the law against importation of narcotics.
I would think that, in the reverse situation of an Indonesian arriving in Australia, and drugs being found in their baggage, a conviction would have been very likely, even if the person concerned claimed to have no knowledge of how they got there. Certainly an Australian court would not have admitted the hearsay evidence put forward in Corby’s defence. On the other hand, it would have been more likely to rule out some of the police evidence on procedural grounds. A better defence team might have done a better job on this.
In general, it’s a feature of the war on drugs that normal legal principles have to be suspended if the law is going to be made to work at all. The routine use of procedures bordering on entrapment, and the effective reversal of the onus of proof, once possession is established, are examples of this, in Australia just as much as in Indonesia.
“I would think that, in the reverse situation of an Indonesian arriving in Australia, and drugs being found in their baggage, a conviction would have been very likely”
Maybe “more likely” rather than “very likely”, not least of all because there is a prima face profit motive coming the other way.
It seems that the accepted wisdom amongst the Australian and European expat community is that there is a market for Australian dealt marijuana in Bali.
I wonder if any of the well-heeled customers of such marijuana trading feel a tinge of guilt tonight. One of the great hypocrisies with the so-called war on drugs” is that the customer is painted as a victim while the supplier is demonised. It takes two to tango. And often roles are interchangeable.
‘In future, [snip] “did you pack your bags and have they been in your possession since thenâ€? at the checkin counter, I will be saying “yes, and will you please indemnify me against any tampering by your baggage handlers otherwise I’m carrying the lot on with meâ€?.’
Flying on tuesday, I’ll try it…
without holding my breath…
It’s a pretty brutal sentence considering the crime. It doesn’t seem to be consistent with the treatment of Bashir for instance.
The evidence was pretty straightforward though – and she didn’t really have a defence other than her denial.
What a waste of the best years of a life.
The Corby media circus
For those living under a rock, Schapelle Corby has been found guilty of smuggling cannabis into Indonesia, and has been sentenced to a very lenient 20 years in a Bali jail. This result was far from unexpected, it was always close to a certainty that …
It’s a rather brutal sentence considering the doubt about her guilt/innocence. If there was no doubt, the sentence is fine.
The death penalty for the “Bali 9”, while perhaps worse (from a lawbreakers point of view) can hardly be complained about.
“I would think that, in the reverse situation of an Indonesian arriving in Australia, and drugs being found in their baggage, a conviction would have been very likely, even if the person concerned claimed to have no knowledge of how they got there.”
Agreed John but we must also understand what Schapelle Corby is asking us and the Indonesian judges to believe. I weighed my son’s boogy board, flippers and bag(the equipment he has taken to Bali twice himself) and would you believe it- 4.1 Kg in total. Now you will have to add or subtract 100g or so for the innacuracy of my kitchen scales. What Corby wants you to believe, is that she loaded her approx 4.1kg board on the plane in Brisbane and when it doubled in weight(4.1Kg marijuana) and probably thickness, she did not notice anything suspicious until she opened it on the counter after she had lifted it on there herself. Gentlemen, the lady is either a liar or mentally incompetent. She knew the game was up and admitted as much to the customs officers, but changed her story after realising the serious situation she was in. That’s why they didn’t bother about fingerprints on the MJ bag, because they had all the evidence they needed to get the inevitable conviction. Question: Do you think Corby is mentally incompetent?
“I would think that, in the reverse situation of an Indonesian arriving in Australia, and drugs being found in their baggage, a conviction would have been very likely, even if the person concerned claimed to have no knowledge of how they got there.�
For very pertinent material on this question, see the letter published in The Age today (Friday) about some Japanese nationals convicted in Australia on drugs charges.
http://www.theage.com.au/letters/index.html
The price of the drug is much higher in Asutralia than in Bali.
Either this is one hell of stupid woman or she is the first person who DOESN’T sell any product in the market at the highest price.
if she was merely a ‘mule’ then the transport costs would have been quite high for a market where the price isn’t. That doesn’t take into account it would be cheaper to make it in Bali.
She would either lose money or make a lot less money than in Australia .
Why didn’t the defence team have the drugs checked for their origin?
Observa,
JQ’s original post was about the sentence rather her innocence. I think the conversation about whether Shapelle is innocent or not has been done to death over the past few months.
Shapelle was found guilty, but regardless of whether the verdict is correct, the sentence is ridiculous.
Steve at the pub, drink up mate in the happy knowledge that even though alcohol contributes more to social breakdown and death than cannabis or heroin, it’s legal in both Australia and Indonesia so thats ok.
Observa, suppose that when she took her back off the carousel she did notice the extra weight and volume, opend the bag and discovered the dope. What would she have done? What would you have done?
And where did you read that ‘she knew the game was up and admitted as much to the customs officers’? Surely you’re not basing this on what that customs guy said on the 7.30 Report last night.
I’m with ‘anon’. But it seems to me it’s not so much the judges’ unfavourable reading of the evidence that makes it unfair, as the difference in the burden of proof. I think it’s clear that, given the lack of fingerprints, and the availability of an alternative explanation, there is a reasonable doubt that she did it.
What I still don’t understand fully is what exactly the burden of proof is. I’ve heard people say that one is ‘guilty until proven innocent’ in Indonesia; also that judgments are based on the balance of probability; also that the judges consider only the prima facie evidence, whatever that means in this context;, and I’ve also heard all of the above said about European criminal law on which Indonesian law is suposedly based.
If any or all of this is true, it means that, even when the evidence is weighed expertly, these systems are less fair than ours, not just for Corby but for anyone indicted for anything. Can any of the lawyers out there give me a 25-word course on comparative criminal law?
Having said all that, I agree with John and wbb about the sentences. Ridiculously disproportionate.
“She would either lose money or make a lot less money than in Australia .”
Heard a so called expert on ABC radio say the 4.1kg of very high powered ‘skank’ was worth $80,000 and highly prized for tourist consumption in Bali. There is a smuggling trade of this skank into the country as the local stuff is fairly mild and worthless. The ‘stupid’ Bali 9 were apparently carrying heroin for $10-15000 reward each Homer. Go figure.
“Why didn’t the defence team have the drugs checked for their origin?”
And if it was categorically proved that it came from Oz as assumed, how would that assist her defense?
“Observa, suppose that when she took her back off the carousel she did notice the extra weight and volume, opend the bag and discovered the dope. What would she have done? What would you have done?”
James, I put it to you if my son found on picking it up off the carousel, his boogy board had doubled in weight and thickness (and the back had a lumpy soft feel to it) he would have incredulously opened it there and then in front of his mates. His and their shock at the contents would have been obvious to all gathered and they would have called the authorities. Some explaining to do no doubt.
“And where did you read that ‘she knew the game was up and admitted as much to the customs officers’”
Customs officers testimony in the court, which Corby denied in court.
I agree wholeheartedly the penalty doesn’t seem to fit the crime re the Bali bomber conspirators.
I’m opposed to the criminalisation of marijuana on libertarian grounds, and to the misallocation of police resources and the civil liberties implications of the war on druges.
However, John, with that amount in her possession, Corby, assuming she was found guilty by an Australian court, would have done jail time. Though nothing like 20 years. Although under the Drugs Misuse Act Joh introduced in Queensland in the 80s, she could have done 14 years.
Er…. Observa, James et al… as I understand it, she did NOT pick her bag up from the carousel, her brother (rugby player, weight lifter, fairly brawny type) hefted it for her, & she did not touch it until the customs officer asked whose bag, she said “it’s my boogie board bag” & opened it.
“Steve”, this thread is not a pro-drugs line, it is a “severity of sentence” thread. I do point out to you that the impace of herion etc on society would be vastly changed if it was consumed by as many people, as regualarly & in the quantities which alcohol is.
Drinking up may be something you do often, or are in fact doing now, but I shan’t be, as teetotallers rarely do.
The severerity of the sentence looming over the Bali 9… well, it can’t get much more severe, however, there is no doubt of their guilt, & the penalty was known in advance.
As I understood it Steve, Corby was waiting at the green line with the board when they were told to go over to the red line for checking. At the counter the brother had the board beside him when the customs officer asked if it was his. Schapelle eagerly stated it was hers and put it on the counter as he asked and he asked her to open it, she opened the small zip pocket at the front to show him there was nothing in it . According to the officer’s testimony she was quite nervy and he was suspicious and he asked her to open the large zipped bag proper. She opened it part way which exposed the MJ bag to view and closed it again quickly and didn’t want to open it again. She was then escorted to a side room where she had to open it and admitted it was MJ and hers, etc. She denies the admissions of guilt.
Quest: Was she carrying the drugs for someone she knew very well and they had previously agreed she was the less likely to be searched? What a dilemma for that person and Schapelle now if that’s the case?
whether she is guilty or not that evidence is just as much hearacy as everything else both sides have put forward.
Quest: Has Schapelle Corby ever been a regular boogy boarder bloggers? She doesn’t look the surfie type to me and very few girls are.
If Schapelle Corby naively agreed to be a drug mule for someone very close to her, then when she was caught she would probably exhibit all the traits of someone who feels she is largely innocent.
She could be guilty, but there is no substantial case for it.
observa, she’s from the Gold Coast, her brother is a surfie, she’s been pictured previously in newspapers on the beach with a surfboard.
Reefer Madness
As a number of commenters pointed out on one of the threads about Schapelle Corby, one issue raised by the case is the issue of whether harsh criminal sanctions ought to be visited on people for the use of recreational drugs such as marijuana. A relat…
“When it finally came time for her to talk about the end of her personal hell, it all became too much for Chika Honda.
For 10 long years, she lived a grim, desperate life in Victorian jails for a crime she says she did not commit. Now, in her first hours as a free woman back in her homeland, the emotion took over….
…The past decade has been a nightmare for Ms Honda, 46. She was one of five Japanese tourists arrested in 1992 at Melbourne Airport for smuggling almost 13 kilograms of heroin.
They claimed to be innocents abroad who were victims of a set-up, their fate compounded by inadequate interpretation during police interviews and the trial that led to a miscarriage of justice.”
The Age reporting the story Simon Musgrave refers to.
Do not for a moment think the Australian courts would necessarily do a better job than the Indonesians. We should be ashamed of this case.
I would also beware of direct comparisons between Indonesian procedures and ours. They got their system from the Dutch, working on Roman rather than common law. Most Europeans would say their system is fairer than ours.
and the effective reversal of the onus of proof, once possession is established, are examples of this,
Don’t get this, makes me think of that US show where the lawyers as a last ditch went to plan B, nominate someone else as the perp. The problem is that it is unethical without proof. In this case Mr Bakir and co simply nominated the Australian baggage handlers as a class.
Judge said that they hadn’t proved this at all, which they hadn’t.
The lawyers seem to be of one mind that the case. was proved
In the meantime 15 yr old Australians are in goal in Hong Kong and Australians are sitting on death row in Thailand and Singapore, being quietly advocated for by Australia. Those individuals must be praying that the Australian media doesn’t decide to get involved.
I was taken with Schapelle’s dignity and courage, but that proves nothing.
I am deeply saddened by the thought of a young woman losing the best years of her life even if she is guilty. It seems so harsh.
But where are the universal moral laws that say that the sentences imposed by Indonesia (or Asia period) are excessive. They judge differently, and if you want to sell prime pot, even if it is to expatriats, in Indonesia for profit, then that is a choice that you have made.
Agreed, David. And agreed, again. The criticism of the Indo legal system is unfruitful as JQ started up this discussion by saying.
The present and immediate brutality and widespread hypocrisy of locking up a young person for a very long time is right now the thing that is very confronting. She was convicted of carrying marijuana. Marijuana.
There are no Balinese kids overdosing on marijuana tonight on the streets of Denpasar. There are only German backpackers laying back in their losmen enjoying the starry skies. Consumers make the market here. They are complicit in Corby’s private hell.
“where are the universal moral laws”
Ros – we make those up for ourselves. Why be hog tied by the antiquated beliefs of others? If something is right for you, you only need to start saying it, and if enough others join you then, hey presto, it soon becomes the “universal” moral law.
For a time.
I came to the same conclusion as the 3 judges because of a filmed interview I saw with Schapelle on TV today. It was a replay of an old interview with her in prison, where she was going over the opening of the boogy bag. She was saying how she enthusiastically claimed the board as hers when it looked like the customs officer thought it was her brothers. She waved her hands emotively saying how she was so happy to be on holiday in Bali as she put the board on the counter. She opened the small zip then the large zip and she let slip she did close it up again, which concurs with the customs officer’s report. Now the way she was gesticulating and describing how happy she was to claim and hand over the board was too pat for me and I could understand why customs would think she was suspicious. Over eager to please, but only with the small pocket zip. That film take made me believe there was something rotten in Denmark which I’ve been alluding to above.
Well Benno more hearsay for those who might like to believe Indo Customs officers are in the habit of hearsaying western tourists in Bali. Mrs O came home a while ago and I said I thought Schapelle was covering for someone very close to her, who probably likes boogy boarding. Coincidentally, that’s what she had heard today from a work colleague who might just have a friend in Foreign Affairs. Apparently Oz and Indo FAs might believe that to be the case too. Now if a very close ‘friend’ of Schapelles, who perhaps likes boogy boarding a lot had convinced her she’d waltz through customs with his(perhaps a her) dope, now where would he be? To own up and get Schapelle off, he’d have to convince the Indos she knew nothing about it, after they’ve already taken the word of the customs officer that she owned up to knowing the MJ was in there. Poor Schapelle and friend eh? What if the whole Corby family think they know what perhaps Oz and Indo FAs and yours truly think we know? Streuth, wouldn’t they be pissed at the ‘injustice’of it all?
Sorry to be a bit vague tonight guys but you know how it is.
I should add I thought Schapelle was a tower of strength to her hysterical family in court today. They seem like a fairly close knit bunch, but I do wonder if one of them will crack under the strain of it all.
I shouldn’t wonder if they do, observa. Homo Sapiens has a propensity for such antics. Nice to able to sit here and pass judgement on their performance.
Well Observa that is the value though isn’t it of this blogging world. That which is not reported in the old media is thrown around and considered.
For those who are interested there is a poster Habib who is a customs broker and who has some useful stuff. On Tim Blair though so may be a bit down market for some.
Yeah, just a little bit, Ros.
Habib posting in comments at Tim Blair actually put it very coherently, & very objectively.
The rush to re-judge the case is beside John’s main point, which needs much closer attention. The ‘war on drugs’ is being prosecuted hypocritically in rich countries, which are exporting the collateral damage to poor ones. It is most evident in Central and South America where good governance is well-nigh impossible due to the massive flow through of narco-money. The USs so-called war on drugs serves mainly to keep prices high. The US does not bother prosecuting the millions of drug users there and tolerates illicit drug use so long as the biggest problems are confined to the lumpen-proletariat. Meanwhile, the citizens of Central and South America, not big users of illicit drugs themselves, are subject to massive levels of daily crime and violence as a direct consequence of US policies.
There are only 2 rational options for the US.
1. lock up every single drug userrs or seller in the US. (Forget the crap about concentrating on the big dealers – all a smokescreen for maintiaing high prices). It might have a differential impact on poor and black populations in the US – but will help relieve the lot of the even poorer latin americans who are current the war’s collateral damage.
2. Abandon the war on drugs, sigh and say prohibition was never a viable idea.
‘…Roman rather than common law. Most Europeans would say their system is fairer than ours.’
David, I’m not sure if this is meant in any way as a response to my query above, but I was hoping for something a little more enlightening. At face value, if the main difference between ‘Roman’ law and ours is that prosecuters have a lighter burden of poof, that would seem less fair. Is there some element of the ‘Roman’ system that compensates for this? Is it the non-adversarial nature of the system, which means that defendents are not at the mercy of juries who could be swayed by ruthless prosecuters? Or is it that a more complete range of evidence is drawn upon? If the latter, this doesn’t seem to apply to the Corby case, where two pieces of evidence in her favour were apparently disregarded.
For the record, I have no opinion whether Corby is guilty.
I know this is not directly related to JQ’s original post but it is has puzzled me about the whole baggage handler angle.
Part of Corby’s defence rested on the claim that baggage handlers put the drugs in her unlocked luggage in Brisbane and that then a Sydney baggage handler failed to pick up the drugs when they arrived in Sydney.
Can someone please to me why people involved in the drug trade would use such a risky procedure? It requires (1) the baggage handler in Brisbane to be able to stow a 4kg clear plastic bag in someone elses baggage without being noticed, (2) for the baggage handler to then contact his mate in the destination airport and give an accurate description of the bag that the drugs are in, (3) the baggage handler at the destination airport to be in the right place to locate and identify the bag and remove the drugs, again without being noticed. Sounds complicated to me and with a high chance of going wrong.
Assuming the value of 4kg of dope is substantial, wouldn’t it be easier and safer to just DRIVE it down to Sydney?
I don’t know that we are fairly hypocritical about the war on drugs, rather Australians do recognise that it is an extremely difficult and complicated issue. I certainly don’t think that the average Australian thinks in terms of it is convenient for our Asian neighbours to have draconian laws, I doubt that most of the time they have any idea what their neighbours think about drugs or what their problems with them are. They leave the consideration of individual human events as elements of the moral bankruptcy of humanity and failure to aspire to the nobler and greater ought to those who enjoy contemplating the lives of the lumpen proletariat from the outside of the scrum
I do think we are being weird about our choice of martyrs however. A fifteen year old, an Australian child, is sitting in a Hong Kong Goal, and he will be tried as an adult because he is older than fourteen, and he faces life imprisonment and he doesn’t get on to the media’s or Australian’s radar.
Or maybe he should be grateful that the Australian media hasn’t decided to make him a cause celebre. As Schapelle should pray for if it is a year from now and her appeals have failed and the Australian government makes an appeal for clemency. No doubt the media and Kruddy will have moved on to the next feeding frenzy and she will disappear into the mist.
The media was gross. One of them fell over and got trampled by his fellow bringers of the truth to us and I struggled to feel sorry for him.
No derridarer the baggage handler possibility is not a furphy. It clearly showed that security at Australian airports in regard to baggage handlers was poor or non existent. Furthermore it showed that Kelty is a complete and utter drongo playing some idiotic game and should be sacked . As it turns out his effect on the trial was zip , as the judges were hanging ones . Keltys games also involved getting Australians arrrested in third world countries so that they can face the death penalty. The man is an utter disgrace aided and abetted by a morally lax government. This adds further weight to accusations of Federal Police involvement in the sinking of the SievX.
Observa,
Here is the simple economics.
The price of the drug is much higher in Australia than in Bali. The main demand there are people holidaying or exprtatriates who don’t trust indonesians when buying the stuff.
It is a hellva lot cheaper to make the stuff there also. Easier to grow, corrupt cops etc are cheaper to bribe etal.
In other words if she sells it in Asutralia she makes a lot more money.
In you own words go figure!
Moreover if she is a dealer or mule where has the money gone?
Her lifestyle is not one that has gained such money in the past.
i hate to ask this question – but to what extent is our expectation of innocence (and hence media sympathy) dependent on the presentation of the individual.
I doubt a dreadlocked tattoed australian citizen would receive anywhere near that attention that Corby has.
Guilt should be objective.
Alpha, you are 100% correct on that. Innocent until proven guilty (provided you’re photogenic).
Homer Paxton,
Apparently Bali has been experiencing a shortage of weed, due to raids on crops. The local grown stuff is junk compared to Ozzi grown hydroponic weed. The expats in Bali prefer to buy from whites, (less chance of them being undercover cops) & surfshops are apparently a favourite place to buy from. Her sister owns a surf shop in Bail. Wonder why she needed to bring her own boogie board? Not say “go figure”… just something to keep in mind.