Pubdate: Sat, 21 May 2005
Source: Australian, The (Australia)
Copyright: 2005 The Australian
Contact: http://www.theaustralian.news.com.au/files/aus_letters.htm
Website: http://www.theaustralian.com.au/
Details: http://www.mapinc.org/media/35
Author: Sian Powell
Bookmark: http://www.mapinc.org/people/Schapelle (Schapelle Corby)

THE CASE AGAINST OUR SCHAPELLE

THE evidence stacked against Schapelle Corby is enough to put her on
trial anywhere in the world, according to legal experts, and will
almost certainly keep her behind bars in Bali.

Almost obscured by the mushrooming cloud of Corby hysteria, the
mounting Australian anger, the death threats and xenophobia, the
blanket media coverage and the mouthings of various singers, talkback
hosts, film stars and politicians, three Indonesian judges have
concentrated on a few basic facts.

A transparent plastic sack filled with 4.1kg of marijuana was found
inside another plastic sack in Corby's unlocked bodyboard bag at
Bali's Ngurah Rai airport on October 8 last year. The former beauty
school student has admitted she owns the bag, as well as the bodyboard
and the flippers that were in it. Despite lifting the bag on to an
arrivals hall counter, she apparently failed to notice its substantial
extra weight. Indonesian Customs officers and police stationed at the
airport have testified the 27-year-old was reluctant to open the bag,
even trying to prevent an official opening it.

Corby's lawyers have tried to throw doubt on the prosecution case,
making the point the bag was unlocked, so the cannabis could have been
slipped into it anywhere between Brisbane airport and Bali.

A defence witness testified he had heard prisoners talking about how
Corby had been an unwitting courier. The defence lawyers suggested the
marijuana might have been on a domestic drugs run, destined for Sydney
from Brisbane, and a mix-up left it in Corby's bag when it was
transferred to the second flight.

They harped on the lapses of Indonesian officials. They pointed out
the examination of Corby's bag and the initial interrogation was not
video-recorded or tape-recorded by police, and an official translator
was not provided. Most important, they told the three judges in
Denpasar District Court, the plastic sacks were not examined for
fingerprints.

Australian Federal Police Commissioner Mick Keelty has described the
Corby defence case as flimsy. The director of the Asian Law Centre at
the University of Melbourne, Tim Lindsey, guardedly says the defence
lawyers didn't have much material with which to work.

But a top defence lawyer from Jakarta may have been able to do more
with it and made a more convincing case, says the Indonesian law
expert, adding more mileage could have been made of the police failure
to take fingerprints.

Perhaps most important in the eyes of the Australian public, there has
been no direct witness testimony to incriminate the young woman from
the Gold Coast, who has regularly and tearfully assured the court of
her innocence.

But in Indonesia, as in Australia, witness testimony is not necessary
for a prosecution or essential for a conviction. Lindsey says the
prosecution has made a substantial prima-facie case against her, a
case in which she seems, on the surface, to be guilty.

"This is her bag, in the bag was found the cannabis," he says. "In any
legal system in the world that would establish a prima-facie case."
Once the prima-facie case is before the judges, the defence has no
option but to prove it wrong.

Indonesia has a different legal system: juries are not used and a
panel of three judges usually decides a defendant's guilt. Many cases
in Australia are decided by a judge alone, without a jury. In
Australia, Lindsey adds, "a person in her circumstances is very likely
to be charged", declining to speculate on whether Corby would be convicted.

Other legal experts, speaking anonymously, say it is likely an
Australian judge would find her guilty.

Much of the prosecution's case turns on the arrest of Corby at Ngurah
Rai airport. She arrived in Bali in the afternoon of October 8 with
her brother, 17-year-old James Kisina, and two friends: Alyth McComb,
25, and Katrina Richards, 17. According to the official indictment, a
Customs official saw "forbidden goods" in the bag after it was
unloaded from the plane and put through an external X-ray machine.

"Because he was suspicious, the official followed the bag to the
baggage claim area and kept watch to determine who owned the bodyboard
bag," the indictment says. Corby retrieved the bag and the official
maintained his surveillance of her, noting she looked anxious, the
indictment continues.

Customs official I Gusti Nyoman Winata told Denpasar District Court
that he asked Corby to open the blue bag, but she unzipped only a
front pocket. He opened the main zip himself, he said. "When I opened
it a bit, she said: 'No,"' Winata said. "I asked: 'Why?', and she
said: 'I have some,' and looked confused."

Winata also said she blocked his hand to stop him opening the main
zip. Finally the bag was opened, and officials saw a pillow-case sized
clear plastic zip-lock bag filled with 4.1kg of marijuana heads.

Winata said Corby identified it as marijuana. "I asked the suspect
what was in the plastic bags. She said it was marijuana. I asked her,
'How do you know?' She said, 'I smelled it when you opened the bag."'

Yet casting some doubt on whether the English conversations were fully
understood, a second Customs officer, Komang Gelgel, said Corby had
told Winata she owned the marijuana, an unlikely admission. "She said,
'This is mine, I own it,"' Gelgel said, a claim Corby vehemently denied.

Gelgel and two police officers largely agreed with Winata's version of
events, including Corby's attempt to prevent him opening the main zip.
It was damning testimony from four Indonesian civil servants, all
apparently objective witnesses.

Corby flatly denied she had tried to avoid opening the main zip of the
bodyboard bag. "Well, firstly he didn't ask me to open the bag, he
just asked whose bag it was," she told the court. "I opened the bag
and I don't remember saying anything or hitting anyone's hand. I
opened the bag and then I closed it."

Corby says she voluntarily opened the bag because she thought it was
expected of her. She told the court she didn't know what was in the
bag, even after the zip was opened. "I was scared, I didn't know what
it was," she said. "Then when I closed my boogie board bag up, a
strong smell came out. I was very scared, I didn't know what was going
on."

Corby didn't deny she identified the substance as marijuana but she
said flatly she had never claimed it as hers. She was not looking
restless or suspicious, she said; she had been happy about her Bali
holiday until grim reality struck.

"I open it, I lift it up and I'm surprised, there's a plastic bag and
half-open, and I'm like 'Ohhh!' And I close it up, I can smell it,"
she told the court. "I never, at any stage, stated that that marijuana
belongs to me; never, ever, have I stated that."

In their last statement to the court, Corby's lawyers averred she had
said, in a startled fashion, "There is something" rather than "I have
some" to Winata, the first time this version of events was related.
The lawyers said Winata's ability to speak fluent English was in
doubt. Corby's brother and her friends supported her testimony.

Corby also denied one of the police officer's claims that her flippers
were found on top of the pillow-case sized plastic sack of marijuana.
"There is no way that the flippers can be on top of the plastic bag,"
she told the court. "I packed my bodyboard and flippers, I did not
pack the plastic bag. The flippers cannot be on top of the plastic
bag, it can't be there."

Regarding her failure to notice the bag's extra weight, Corby told the
court the bag's handle had somehow been broken en route to Bali,
meaning she had to drag it.

Asked if that was why she failed to notice the added 4kg, she replied:
"Well, I had my suitcase and another bag and I had never dreamed there
was anything else in my boogie board bag than what I had just packed."

One of Corby's chief lawyers, Erwin Siregar, asked the two police
officer witnesses, Wayan Suwita and I Gusti Ngurah Bagus Astawa, why
no fingerprints had been taken from the ziplock plastic sack inside
the bodyboard bag. Suwita answered: "We knew it was marijuana, so it
wasn't necessary." Siregar pointed out that the crime of drug
smuggling potentially carried the death penalty and asked if that made
a "perfect investigation" more important.

"It's not my duty to answer that," Suwita replied. "Ask my superior."
Astawa also said he did not know whether fingerprints were taken.
"It's not my field," he explained. Asked whether fingerprints were
necessary in Corby's case, he replied, "No."

Fingerprinting is not a common procedure in Indonesia, where the
under-resourced police force is hard-pressed to deal with burgeoning
crime.

The defence, though, submitted transcripts of television footage
showing gloved police officers dealing with the nine Australians
recently arrested for heroin smuggling in Bali. Why gloves for the
Bali Nine and not for Schapelle, came the question from the defence.

A transcript of an Indonesian TV interview with Bali drug squad chief
Bambang Sugiarto was also tendered to the court by the defence after
the closing addresses. Sugiarto said Corby's "condition" was only 50
per cent, apparently referring to shortcomings in the fingerprinting
and videotaping elements of the investigation.

Countering the defence's queries about the failure to fingerprint the
plastic sack of marijuana, prosecutor Ni Wayan Sinaryati told the
court it was unnecessary.

"In this case, the criminal perpetrator was caught red-handed by the
Customs officers at the airport," Sinaryati said.

The defence was also unable to prove the weight of Corby's bag when
she checked in at Brisbane airport, since all the bags were weighed
together and police in Bali did not weigh all the bags for an overall
comparison. Nor did Balinese police take up an AFP request to test the
marijuana to determine its origin; there was no need, they said, they
already had a case.

The prosecution dismissed as worthless various defence witnesses,
including Victorian prisoner John Patrick Ford, flown to Bali by the
Australian Government to give evidence. Ford had come to Bali, the
prosecutors said, because he "wanted to breathe free air", but his
testimony was pointless. Already dubbed "hearsay on hearsay" by
Keelty, Ford's testimony would not have been admitted by an Australian
court, legal experts say.

Chief Judge Linton Sirait, presiding over the Corby case, has also
told reporters hearsay is not admissible in Indonesian courts.

Accused of rape, Ford told the Bali court how he overheard two men in
prison discussing a drug shipment gone wrong. Corby, he said, was the
unwitting scapegoat, but he declined to name the real criminal.

Lindsey says the Indonesian judicial system, unlike the Australian
system, will accept dubious evidence for consideration and the judges
will then give it no weight.

Defence witness Scott Speed, a Qantas baggage handler at Brisbane
airport, told the court it was possible to put drugs or other goods
into bags after they had been checked in.

Another defence witness, criminologist Paul Wilson, told the court
Corby did not fit the profile of a drug courier, based on his only
interview with her, conducted that morning.

Late in the piece, after the closing statements had been made, Corby's
legal team presented the judges with a bundle of letters, character
references, newspaper articles, a court statement of facts and a
report from the Australian Government concerning an airport-linked
cocaine-smuggling ring, a gang that was operating on the date she flew
to Bali.

Yet legal experts query the cocaine case's evidentiary strength,
considering the cocaine smugglers have yet to be tried, let alone convicted.

The bundle of evidence included transcripts of Australian and
Indonesian TV programs, with other allegations of drug smuggling in
Australian airports.

Yet none of it is sworn evidence, and none can be tested in court. The
judges accepted it as an attachment to the defence, but that doesn't
mean it will carry any weight in their judgment.

Indonesia is notoriously corrupt, routinely languishing at the bottom
of international corruption indexes. The judicial system, too,
undoubtably 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.

On the known evidence, it's almost certain they will find Corby guilty
when they hand down their verdict next Friday, and on past history
it's likely they will sentence her to a lengthy jail term. Indonesia
has tougher drugs penalties than Australia, up to and including death.

Perhaps it's the sentencing disparity that has galvanised so many
Australians rather than the question of whether she has been justly
tried. Sirait has dubbed her trial "ordinary"; yet it's one that has
provoked an extraordinary reaction in Australia, a reaction that is
likely to roll on for some time. 
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MAP posted-by: Richard Lake