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31 May 2005 @ 09:51 pm
A media-fostered misconception:  
The Indonesian justice system is based on guilty until proven innocent, and is uncivilised.

The Indonesian justice system, far from being uniquely Asian, is in fact based on a European model, as used in countries such as Germany. In many ways it is a superior system to our own, which we inherited from England.

Our justice system is an adversarial system. What that basically means is that you have two sides, the prosecution and the defence, who take opposing views and state their opposing views to a jury (of ordinary untrained individuals) who chooses which side to believe.

The European/Indonesian system is an inquisitorial system, which means that the case is decided by well-trained, experienced judges, whose job isn't so much deciding whose story to believe, the prosecution's or the defence, but to try and work out the truth.

The adversarial system is not interested in the truth of what actually happened, but is instead only interested in a black-and-white guilty or innocent.

Whilst, obviously, the Indonesian court provides such a result, the case is decided on the balance of the facts as they are known, rather than simply picking which side is right. This is why sentencing follows immediately after the verdict, because the judges don't just decide if you are guilty, but also how guilty you are.

This may seem odd to us, but it makes a lot of sense if you think about it. The judges aren't just trying to work out if you did it, they are actually trying to work out the true events as they happened.

Much hoo-ha was made about the fact that the chief judge had never acquitted someone of drug charges. However, that doesn't equal corruption or bias. The fact of the matter is that almost all drug cases are pretty much open-and-shut.

If you have drugs on you, they are almost certainly yours.

And this is the crux of the Schapelle Corby verdict.

Schapelle Corby's boogie-board bag contained a little over 4kg of marijuana - this is a fact that was never disputed by the defence team. It was not disputed because there was simply too much evidence that this was the case.

Since that is an undisputed fact, the question then becomes: how did they get there?

Finding the answer to that is the job of the judges, who heard evidence from a wide variety of sources.

However, none of this evidence provided any plausible explanation other than the obvious one: Schapelle put the drugs there herself.

This whole nation is caught up in the frankly racist notion that Schapelle Corby must be innocent because she is a poor little white Australian girl stuck in an Asian hellhole.

Given the evidence, the Indonesian judges reached the only conclusion they could; the only conclusion that anyone who casts emotion aside and actually thinks about the facts would reach.

Schapelle Corby's bag had drugs in it.
No other plausible source has been found for the drugs.
Therefore, the most likely explanation is that she put them there.

Anyway, getting back to the supposed chasm between the Indonesian legal system and the Australian legal system, I want you to reverse the situation in your mind:

An Indonesian citizen arrives in Sydney airport, supposedly on holiday.
A search of one of her bags uncovers 4kg of marijuana.
The only defence she can come up with at her trial in an Australian court is that the marijuana must have been placed there without her knowledge by a person or persons unknown.

Do you really think that she would be found not guilty?
 
 
 
Gailkowari on May 31st, 2005 09:54 pm (UTC)
Actually, I would blame the staff at sydney airport at the moment.
Big trafficking ring, and until that is cleared up everything not in locked luggage or strapped or inserted in someone I consider suspect.

It is about reasonable assumptions. Indonesia say the reasonable assumption based on the facts is that she put it there (which is true - it is a reasonable assumption). In Australia, there is reasonable doubt that she put it there, so she would likely get off (which is also true, there is a lot of doubt about how the dope could have got in there). Same scenario, different outcome, all based on how you deal with reasonable assumptions.
Jacobyak_boy on May 31st, 2005 11:08 pm (UTC)
She had drugs in her bag.

If there is any doubt that she put them there I don't think it is a reasonable doubt.

Even if there is a drug trafficking ring amongst baggage handlers, it makes very little sense for them to use the bags of random people to courier drugs - because there is too much risk something will go wrong. The report I saw on ACA about how easy it is for baggage handlers to come and go without being checked only reinforces to me that there is no need for them to use unwitting victims as their mules.

If you can walk in and out of an airport without being checked why would you piss about with someone else's bags when you could place whatever you want directly on the plane yourself, and your counterpart interstate can take it directly off the plane at the other end?

Besides, whilst the media tried to make out that there is no plausible reason for importing drugs into Indonesia (which is a complete fabrication, the practice is extremely profitable), the real implausibility is why anyone would take the massive risk of trafficking drugs by air interstate. There aren't any sniffer-dogs on the highway between NSW and QLD, so why doesn't this supposed domestic drug ring just drive the damn drugs around the country.

Like I said, Schapelle Corby's defence, despite what the media has told you, is simply implausible.

If anything would have been different in Australia, it would have to do with the resources of the federal police here. There would be no doubt left as to fingerprint and other physical evidence.

The other difference in the Australian legal system is actually the sort of thing that ACA usually complains about: that obviously guilty people can often get off on a technicality. Which would have to be our hypothetical Indonesian citizen's best hope.
Gailkowari on May 31st, 2005 11:45 pm (UTC)
Reasonable doubt = an unsecured bag.
Reasonable assumption = She put it there.

Reasonable doubt means whether or not you can prove it you can build a scenario that could reasonably happen that means your client is innocent. Circumstantial evidence is always good, sense has nothing to do with it. Like I said, until that whole Sydeny airport thing is cleared up, there is no way to tell. Therefore, reasonable doubt. However, that piece of information was discounted by the judges because it came in after some date or something. So, from a legal proceedings POV, resonable doubt with corroborating evidence is removed.

I am not saying I agree with the reasonable doubt methodology, but that is the way it works.

Obviously guilty and actually guilty are not the same thing.

BTW, the media has told me nothing. I dont have TV and I dont read newspapers. Most of what I know of the case has come from people I know and what they understand to be going on, pointing me to decent articles on the topic, and I have some very savvy friends.
Jacobyak_boy on June 1st, 2005 01:59 pm (UTC)
Well, if an unsecured bag constitutes reasonable doubt, then no-one would ever get convicted of drug smuggling.

"Maybe someone else put it there" is really not a very strong argument, and I really don't think it would hold a lot of water in any court.

Plenty of people are convicted on circumstantial evidence, and just because they can come up with an alternative scenario is not necessarily enough to acquit them.

I'm not saying that it is absolutely the right thing that my hypothetical Indonesian would be convicted, but I still stand by my assertion that they would be convicted.

Seriously, Schapelle Corby's defence amounts to little more than a "what if" story, and I seriously doubt that any Australian jury would see it as grounds for a reasonable doubt acquittal.

The point to remember about our legal system is that, in the end, it isn't the lawyers with their fancy legalese that decide the case. It is an ordinary jury, who aren't all that likely to believe such a story from an unsympathetic defendant.

As for Sydney Airport, I still maintain that it is doubtful that any drug smuggling ring would use an unknowing victim as a drug mule. It just doesn't make sense for them to risk blowing the deal.

Here is a real story about drug smuggling through Sydney Airport. Note two things about this story:

1) The drug smuggling is international, not domestic.
2) The drug mule is (allegedly) a willing accomplice.

I maintain that Schapelle Corby's scenario doesn't make much sense.

Gailkowari on June 1st, 2005 09:39 pm (UTC)
You are not arguing the same thing as me, so I am going to stop now. I am not diagreeing with you - your facts and the way you put them together makes sense. I am just casting doubt on your theory and that you can never know until it gets done.

I can see it perfectly validly going either way. My point was that there was not enough evidence (facts, cold hard evidence, finger prints... not one persons word against another) on how the drugs got in the bag. I never found enough facts to convince me EITHER way. Which brings the whole thing back to reasonable assumptions.
Jacobyak_boy on June 2nd, 2005 08:41 am (UTC)
You are right, and Schapelle Corby is unlucky that Indonesian law is more lenient on the whole policy of assumptions.

I agree that it is impossible to know both how such a trial would happen in Australia, or even if the Indonesian trial had the correct outcome.

It just annoys me that the overwhelming belief amongst the Australian public is that she is definitely innocent, when in reality she is probably guilty.
Mikmareth_redorb on May 31st, 2005 10:19 pm (UTC)
Given the evidence, the Indonesian judges reached the only conclusion they could; the only conclusion that anyone who casts emotion aside and actually thinks about the facts would reach.

I think this is the main problem we have. We in Australia are only given what our media tells us (or what we can find from international sources online), so we are incapable of making a fully informed comment. Given what we have been, I would agree with kowari above, that in our system, there is enough reasonable doubt that she would most likely get off.

However, as you have pointed out, it is not our system, so she didn't.

The other point which is frustrating about so many people complaining about this case is their comparison to the Bali Bomber only receiving eighteen months being unfair. As I understand it, (and please correct me if I get something wrong) the reason he was given such a small sentence is because in their haste, the relevant powers decided to try him on terrorism charges that were brought into effect after the bombing, which under the Indonesian legal system, made them invalid charges, as the laws don't apply retroactively. Hence he received a reduced sentence. If they had instead charged him with existing laws such as murder, conspiracy to commit murder, destruction of property, etc., he would have received a much harder sentence.

Having said all that, I don't know if she did it and I doubt we ever will really know one way or the other.
Jacobyak_boy on May 31st, 2005 10:57 pm (UTC)
If you watched Media Watch you would have seen that the "mastermind behind the Bali bombings" got 18 months on totally unrelated charges.

He is suspected of masterminding the Bali bombings, but has never been charged and certainly hasn't been convicted. Whereas the three men who have been convicted are all on death row.

It's just another case of biased reporting making it look like "us versus them".
Mikmareth_redorb on May 31st, 2005 10:59 pm (UTC)
Thank you. That was the point I was trying to get across.
Talutha: ateambonesinger on May 31st, 2005 10:33 pm (UTC)
Eh. Big WORD to that rant. I am so sick of this entire thing.
I am sick of people claiming that she must be innocent because she is white/Australian/pretty/has parents/ has a 'secret husband'/has freckles. I am sick of people expecting John Howard to pick up the phone and interfere in another country's legal system for no good reason. I am sick of the media. Full stop. I am sick of people suddenly turning against Bali and the Indonesian people because they had the gall to find an Australian guilty of drug trafficking. So she should have a get out of jail free card because she is Australian? Who do we think we are? And most of all, I am disgusted by people wanting their donations back from Tsunami appeals. Australians can be generous and open hearted, but can easily turn on a dime and become petty racist bastards far too quickly.

*pants*

There was hearty agreement with you somewhere under all that ranting.
sjlsjl on June 1st, 2005 06:04 am (UTC)
Rant on. There's a very ugly streak just under the surface of Australian culture, and Howard has done plenty to bring it closer to the surface than it has any right to be.

There are times when I'm ashamed to be Australian.
musaeramusaera on May 31st, 2005 10:58 pm (UTC)
it reminds me of jessica lynch, they wouldnt be making such a big deal about her if she were uglier. notice how the group of boys that were caught hardly got any media attention? betch her fancier name helped too.