Pubdate: Sat, 21 May 2005
Source: Sydney Morning Herald (Australia)
Copyright: 2005 The Sydney Morning Herald
Contact:  http://www.smh.com.au/
Details: http://www.mapinc.org/media/441
Author: Matthew Moore
Bookmark: http://www.mapinc.org/people/Schapelle (Schapelle Corby)

THE BIG SHOCK THAT AWAITS CORBY

The odds are stacked against her and it's not just because of
Indonesian law, writes Matthew Moore in Jakarta.

Schapelle Corby's prosecutor is not used to losing, especially in
drugs trials. Of the more than 200 narcotics cases he has handled, Ida
Bagus Wiswantanu has got 90 per cent of the sentences he has asked
for. Those cases where the judge has wound back his requests are the
small ones, he says, "usually less than 100 grams".

For Corby, who was caught last October with 4.1 kilograms of
marijuana, a drug Indonesia classes as a narcotic, the odds are high.
Mr Wiswantanu wants her jailed for life, nothing less. If she gets 15
years, he will appeal immediately. If she gets 20, he will still
probably appeal.

Sentencing Corby to life was the best way, he said, to deter
foreigners from smuggling drugs into Indonesia. "This is a kind of
shock therapy, the life sentence. We have to understand the impact
these drugs have on society."

If Corby is convicted next Friday, there is sure to be a barrage of
criticism in Australia of how unfair the case has been, and how biased
the Indonesian legal system is. And yet those who know something about
the Indonesian justice system will give a quite different response.
Their view is that Corby has got the sort of trial most defendants can
expect when arrested in Indonesia. Like the country's hospitals, where
you must pay up-front for sub-standard care or get left for dead, the
justice system has plenty of shortcomings. AdvertisementAdvertisement

It is desperately under-funded and notoriously corrupt. Those who work
in it are poorly trained and poorly supported. There is no transcript
of proceedings, no proper interpreting service and no worthwhile legal
aid. And bribes are routinely paid, especially in drugs cases.

Compounding the problem is Indonesia's own fight against drugs.
Billboards in the streets and at airports warn of the death penalty
for traffickers.

Foreigners also have a reputation for smuggling drugs here: 23 of the
29 drug offenders on death row are foreigners, as were all three of
the drug dealers executed in the past year.

To Australians watching the case against Corby unfold, Indonesia's
legal system appears bizarre and lawless. TV cameras have free reign
in the court and judges, prosecutors and defence teams will agree to
be interviewed almost any time. They are happy to canvass how the case
is going and to criticise each other in a way that would land them in
court for contempt in Australia.

Chief Judge Linton Sirait even said Corby has not done enough to prove
her innocence. When challenged on this, he denied he was prejudicing
the case and said he had only made the remarks in response to Corby's
claim in court that she was innocent. "Many people who are brought to
court say, 'I am not guilty.' If we accept this, then everybody must
be free. If she said she is not guilty, there should be proof."

Tim Lindsey, the director of the Asian Law Centre in Melbourne, said
Australians needed to understand that Indonesia used the European
civil law system. There judges routinely quiz defendants in a way
foreign to Australia's legal system, which is based on British common
law.

But while the systems were different, "the outcome of trials are not
so radically different".

Dr Lindsey said one myth about Indonesia was that it presumed
defendants guilty until proven innocent. "This is completely false.
There are three separate pieces of legislation that state precisely
the opposite."

As in Australia, the burden of proof is on the prosecution to
establish a prima facie case, and once that is established, the
defence must prove its case in response to defeat the charges.

Corby's problem has been all along that the prosecution has had plenty
of evidence to establish a prima facie case, and she has had very
little to rebut it.

She admits owning the boogie board bag in which the marijuana was
found. And four witnesses, two customs officers and two police
officers, all say she admitted the marijuana was hers and that she
tried to stop the bag from being opened. In court, Corby has denied
these charges, but it is a case of her word against theirs.

She tried to show that the bags the drugs were in did not have her
fingerprints on them, but to no avail. Police handled the outer bag
without gloves from the start, contaminating it in the process, and
her request for fingerprints on the inner bag was never done. Whether
it is malice or incompetence is hard to say.

Although the fingerprints might not have proved anything, Dr Lindsey
thinks this was a serious failing in the police investigation.

One man who understands Indonesian law more than most is not so sure.
Sebastiaan Pompe, who is the adviser to to the World Bank in Jakarta,
said fingerprinting was of modest importance given that Corby admitted
ownership of the boogie board bag.

Trying to prove that a baggage handler in Australia put the drugs in
her bags has proved almost impossible for Corby, although the court
can hardly be blamed for that. It allowed a Victorian prisoner, John
Patrick Ford, to give evidence about a conversation he overheard
suggesting a baggage handler had placed the drugs in Corby's luggage.
In Australia, such hearsay evidence is not allowed. "I feel the court
has shown itself to be extremely accommodating to the defence," Mr
Pompe said.

But Corby has benefited from some sloppy prosecution work. Asked by
Judge Sirait what contact she had had with marijuana, Corby said she
had come across it only in drug education classes at school. She gave
a quite different response to 60 Minutes last year. "Oh, I
experimented."

Perhaps most worrying for Corby is this statistic from Judge Sirait: of the
500 defendants who have appeared before him on drugs charges in the past 15
years, not one has been acquitted.

"It's interesting statistically," Mr Pompe said. "I find it very hard
[to think] you do 500 cases and secure convictions in every one case.
Surely you should have one or two where the evidence would point the
other way."

Schapelle Corby will be hoping she is the first.

[sidebar]

THE LEGAL PLAYERS

Ida Bagus Wiswantanu

No one has shown less emotion in the court than the Balinese lead
prosecutor, Ida Bagus Wiswantanu, who barely moved when Corby appeared
to collapse, forcing him to wait a second week before delivering his
request for a life sentence. Wiswantanu impressed many Australians
when he successfully prosecuted the Bali bomber Ali Ghufron and
persuaded judges to sentence him to death.

Linton Sirait Corby's head judge was a member of the bench that
sentenced the chief Bali bomber, Imam Samudra, to death. Many
Australians would now appear to hope the Christian, from Medan, North
Sumatra, will take a much softer line when sentencing Corby, but he is
not known for leniency in drugs cases.

Lily Lubis Corby's chief lawyer has cried openly in court as the
prosecutor has demanded her client be sentenced to life imprisonment,
evidence of an emotional bond rarely seen between lawyer and client.
Few doubt her claim that she fervently believes Corby is innocent.
Lubis has argued consistently that prosecutors have not been fair to
her client but some lawyers say she should have made more of the
prosecution's failure to fingerprint the bags of cannabis.
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