If Schapelle Corby is innocent, the Australian media have become her persecutor. So writes CLA member Roger A.Smith, probably Australia's most experienced, hands-on observer of the Indonesian legal system, in this letter to a writer on The Australian newspaper. Smith is backed-up by Kay Danes, who knows first-hand from experience in Laos how Asian legal systems and Australian media naivety are potentially a powerful and toxic combination.

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LETTER from Roger A. Smith to Caroline Overington, The Australian  newspaper

 Dear Caroline

 I write to you in connection with the article that was published under your name on the front page of the Weekend Australian on 5-6 July 2008 titled ‘Corby Father a Dealer: Cousin’.

Let me say first of all say how much I admire your journalism, and in particular, your reporting on the Australian Wheat Board (AWB) scandal and Australian social affairs.  Your most recent article, however, is aberration that is not worthy of the generally extremely high standards of journalism upheld both by yourself and the Oz, of which I am an avid reader.

Over the past three years, I have taken more than a passing interest in the case of Schapelle Corby. My interest derives from having lived in Indonesia for nine years, which included work reporting on court procedures for the International Commission of Jurists (ICJ) and International Bar Association (IBA) as well as work as a consultant to an Indonesian law firm.  I have probably spent more hours in Indonesian courts than just about any other person in Australia – thankfully only as an observer and not as a litigant, or God forbid, a defendant!

As an Australian-trainer lawyer and a keen observer of the Indonesian judicial system, my position on the Corby case is a simple one that is probably shared by anyone who has honestly followed the case. Corby is being unjustly imprisoned for a crime that was NEVER PROPERLY INVESTIGATED. The drugs were destroyed before they could be tested for origin. The bag in which they were contained was never checked for fingerprints. Airport CCTV scans were wiped.  There is no corroborating evidence in the case whatsoever aside from the drugs in the bag and that is not enough to put someone away for 20 years where considerable doubt exists.

Article 66 of the Indonesian Criminal Procedural Codes (KUHAP) states: “The onus of proof is NOT on the Defendant”. Given that no one has been able to prove beyond a reasonable doubt either her guilt or her innocence, then she must be freed.  This is a fundamental principle of any legal system.  You can not send a person to jail for 20 years unless the prosecution has proven its case beyond a reasonable doubt.

It has still never been explained how a passenger could check in on to a Qantas flight a 4kg sack of ganja inside an unlocked surfboard bag and then have it pass without detection through not just one but THREE Australian airport terminals – two domestic (Brisbane and Sydney) and one international (Sydney).  Quite frankly, I don’t fancy my chances if I tried this tomorrow at Canberra airport and then expected it to pass undetected through Sydney on to my intended overseas location. It just wouldn’t happen!.

Simply, we don’t honestly know who put the marijuana in the boogie board.  I don’t believe it was Schapelle. You might suspect it was her or her family, but until this has been investigated and proven, no one should be imprisoned for it.    

The real story here for anyone with the slightest modicum of a sense of justice is not to provide a vehicle for Australians to show how socially superior they are to a downtrodden family with few media skills. The real story is how a young powerless woman is being imprisoned for a crime that she probably had nothing to do with.

I would also have serious doubts about Schapelle and her family’s innocence in the matter except for one very important consideration.  Ever since the verdict was handed down and the Government falsely blamed her supporters for a biological terrorist attack on the Indonesian embassy, the media has been going gangbusters trying to find something to link her or her family to drugs. I have never seen any family in Australia subjected to such extraordinary scrutiny. Every minute detail of their lives and associates from former next-door neighbours to ex-best friends and persons they were once photographed with has been exposed and examined. But every allegation – and there are far too many in the media since 2005 for me to keep track of them all – has been found to lack substance. The defamation verdict in the Today Tonight trial in which Mercedes Corby and her mother were vindicated is just the latest example. Like clockwork, your story too has already been discredited within days of it being published. 

If we are to believe even a small amount of the allegations against Schapelle, her sister, mother, father and brother-in-law, it still beggars belief that they could have been involved in the drug trade for a long period without even a single charge – let alone conviction – against any of them since the 1970s. And this after being subjected to the most intensive media and police scrutiny imaginable!

Whether it was to smooth over relations with Indonesia or for ratings, the media has been going all out to try to convince the Australian public that their initial assessment at the time of the trial back in early 2005 was wrong. Yet it is precisely in this way, through observing directly testimony and the demeanor of defendants and witnesses at trial that our system determines the guilt or innocence of accused persons.

At the time of the verdict, polls showed that some 80-90 per cent of Australians believed she was innocent. This was after direct observation of her demeanor at trial in live or delayed television coverage. Since that time, there has been no substantiated or material or admissible evidence coming to light that would change such an evaluation.  The only change has been the way the media has chosen to play it out – at first strongly supporting her innocence and, from June 2005 onwards, strongly advocating her guilt.

Because I believe in freedom of opinion, I will say what I truly think about the handling of the case by the Indonesian judiciary based on my involvement with their system. There are three elements to the outcome of judicial determinations in Indonesia and only one of these is justice and the law.  The other two are politics and money. In the Corby case, factor number 2 applied. Quite simply, the judges couldn’t possibly have freed her because the politics of the case meant that they couldn’t have been seen to give the benefit of reasonable doubt to an accused drug dealer despite the law requiring them to do so. With the benefit of hindsight, the defence strategy should have aimed at winning public sympathy in both countries! This is what her subsequent Indonesian lawyer, Hotman Paris, tried to do, but by this time the Australian media had turned against her and politics therefore meant she had to serve – in my opinion wrongly and as an innocent person.

Caroline, the Corby family doesn’t have sophisticated media minders, PR agents or political interest groups to lobby on their behalf and she has been almost totally ignored by the human rights groups that defended David Hicks despite the injustices in her case being, in my opinion, graver and her sentence obviously more severe. To criticize the American judicial system is to uphold human rights, but to criticize far worse violations in the Indonesian system is racism. I will never understand this logic.

I don’t honestly know why The Weekend Australian and the ABC choose to so prominently publish unsubstantiated allegations about a dad from a family that is down on its luck to say the very least. Is it because, unlike Mercedes and Roseleigh Corby, a dead man can’t sue for defamation?

It is traumatic enough having had a client as a foreign prisoner in an Indonesian jail, but I respectfully suggest that you can’t possibly imagine the pain that a family in this situation has to go through. 

Advocacy for Schapelle Corby is the most politically incorrect and naive action imaginable in Australia at this time, but it happens to be the right thing to do. We are all diminished and our rights and protections as Australian citizens severely comprised as a result of the shoddy way that she has been treated. 

Regards,

Roger Smith, CLA member

Gordon ACT

PS:  Compare and contrast Schapelle's reaction to that of a guilty, female, convicted, drug smuggler faced with the same punishment, Renae Lawrence.  As one of Australia's most experienced barristers Philip Opas QC said in relation to the Corby case:

"She’s either a better actress than Sarah Bernhardt ever was or she’s telling the truth and if that doesn’t raise a doubt in the minds of anybody observing her then, as I’ve said, I’d eat my wig. I would never convict her on the evidence I’ve seen". (ABC Interview, 15 May 2005)

Corby and the family's appearance in the recent documentary The Hidden Truth screened on Channel 9 in June 2008, coupled with the total lack of any incriminating evidence to emerge since 2005, does nothing to detract from that reality.  If she is guilty, then I suggest we sign her up to play alongside Nicole Kidman or Cate Blanchett once she's released in 2024!

RESPONSE from Kay Danes, Foreign Prison Support Service:

Dear Roger,

I strongly support your writings and just wish this vendetta from the Australian media would cease. They do not seem to care at all that their inconsistent ramblings are damaging a legal case beyond repair. They have clearly lost objectivity and now, as we have seen, even the ABC are running 'claims' made by distant family members, to whom no credibility has been established, in order to promote further bias towards Schapelle Corby. This is something that shocks and sickens me because I would have thought better of the ABC than to succumb to such sensationalist media grabs.

I dont' know what can be done for Schapelle Corby now in a legal sense. Her situation is one of great concern to me, as is the fact that the media is causing Australians to focus more on TV-style drama & ratings than social justice and civil rights. I am deeply disappointed and hope that Australians will realise that the media don't always get it right. Certainly those advising her to smuggle a TV camera into Kerobokan Prison obviously had very little regard to her present situation. It was highly reckless and we are yet to see the repercussions for Schapelle and the other Australians currently detained in Bali.  

When you are detained in a foreign prison you become vulnerable to all the elements, not just those within your controlled environment. When my husband and I were unlawfully detained in Laos in 2000, in violation of international law, most of the media concerning our case merely perpetuated the false allegations put forth by corrupt Lao officials. The media reported what they thought would sell newspapers. To them a headline such as ‘Australian Couple Accused of Gem Theft’ was more attention grabbing than the closer truth ‘Australians held hostage!’ Where there's smoke, there's fire, they say.

This is surely a very lazy way of thinking that is responsible for many injustices in our world. How anyone could believe what our captors released to the media: that I had attempted to smuggle 160kg of sapphires in my underwear, while dragging two frightened children across the border, in the company of the Australian Embassy, and somehow passing this off without anybody noticing, is incredible. As I said, lazy thinking.

But unlike Schapelle, we were lucky, we had the full backing of the Australian Government that believed in our innocence; and professional advisors who were able to handle our case in a manner that did not offend the Laotian authorities. Hence our government was able to negotiate an unprecedented presidential pardon to secure our release. But the truth remained buried beneath the media grabs and, with it, our previously unblemished reputations. 

Regardless of guilt or innocence, I strongly believe that Schapelle Corby is being victimised by the Australian media. These constant attacks leave us with very little room to plead her case to anyone; and all the breaches of Indonesian and international law go unnoticed because they are overshadowed by hearsay and innuendo.

It is a shame people have the tendency to form an opinion based solely on media reports, often without knowing the facts. Is everyone guilty just because it‚s reported in the media that they are?

When a person is detained in prison, they often have no control of what’s going on around them and not much knowledge of what people are doing or saying on their behalf or about them. Prisoners do not lose their rights simply because they are prisoners, or at least they are not supposed to.

Sadly, people tend to forget that prisoners are still human. Schapelle is still someone‚s daughter, sister and someone’s best friend. There are many people who care about her 'rights' and continue to hope that she survives whatever decisions are made by the Indonesian authorities. She should still be allowed some dignity by virtue of simply being human.

Thank you Roger and Civil Liberties Australia for standing up for Schapelle's rights. I will make sure she is made aware of this.

Regards,

Kay Danes, Capalaba QLD

International Human Rights Advocate

Foreign Prisoner Support Service

http://www.foreignprisoners.com