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CJ Garlic cgarlick@bigpond.net.au says on 2006-05-14 17:56:16 about Schapelle Corby - Beyond Reasonable Doubt - where are the Human Rights Lawyers and International Treaties when someone really needs Help?
What is the Indonesian perspective to what actually constitutes
‘Possession Knowledge and Control’
In August 2005, if you mentioned Bali and Schapelle Corby to some one who is resident on Australia’s Gold Coast you may well be interested in the comments, as most seem to certainly have one.
Just in case you have been orbiting the earth for the past year and do not know who I am referring to let me enlighten you.
October 8th 2004 Ms Corby and others related to her did travel from Brisbane Australia via Sydney on route to the Island of Bali located in Indonesia for a vacation.
Ms Corby, who is described as young, beautiful and a vibrant Aussie girl did not realise (if you are to believe her side of the story) that she was about to face the most horrific experience any person could ever be confronted with.
She arrived in Bali collected her luggage and was subsequently detained by Customs officers for an inspection of her luggage. Amongst her luggage was a boogie board (a smallish surf board style fun thing one would use at the beach by laying your stomach on it and using it to catch a ride on a wave) which was in a zipped carry bag.
The contents of that bag were inspected and it was revealed that 4.1 kilos of Marijuana was concealed within a plastic bag and secreted in the boogie board carry case.
Corby has since argued that she did not know how the marijuana came to be in the bag. She was sentenced to 20 years imprisonment ;( later reduced to 15 years) she will be released assuming she survives the internment when she is 42 years of age.
Before you cast any stones my way, let me tell you why I have taken the time to research and write this article.
It is not my intention to argue whether Corby is guilty as charged by the Indonesian judicial system. My sole purpose is to activate a solution to a serious contravention of human rights. If your grand mother was accused of the same crime how would you convince the Indonesian authorities of her innocence and why would your relative be any more innocent than Corby.
I have been astonished at the level of cases that are available on the substance of drug trafficking, and you may have already worked out in most, they didn’t do it, they didn’t know it was in their luggage, some one must have put it there, but it certainly is not mine.
Imagine if you can, that you are a customs official and that your sole purpose is to enforce the Customs Act in the jurisdiction where you live, how many times would you have heard that story. Even when I recently came back to Australia after a week in Hong Kong, while I was waiting to exit Sydney Airport, those that had filled out their in flight customs declaration and had stated they had nothing to declare were caught time and time again with oranges, apples, dried fish, bamboo wind chimes and each and every one said ‘oh, I’m sorry I didn’t think you meant this’.
This article will focus on the Law within Australia and how we would deal with a situation like Corby. I stress from the outset that this is my personal observation and research and that there is opportunity to debate as to whether I have approached any of this article from a rationale view point, even though I do believe I will prove that I have once you have read my findings.
I would like to start with the civil jurisdiction and commence with a legal term known as Bailment. To give credit to Associate Professor Denis SK Ong Bond University who is an author, a barrister of Lincoln’s Inn (London) and holds a PhD. I have used some parts of one of his books, Trusts Law in Australia second edition Federation Press 2003 and shall alert you to references by stating Ong.
To quote Ong at page 58 ‘Where a personal chattel (a piece of luggage) is delivered by one person (Schapelle Corby) to another (QANTAS check in) with the common intention that the latter (QANTAS) shall be obligated to return it, the transaction is a bailment. The person who delivered the chattel is known as the bailor (Corby) and the person who is required to return it is known as the bailee. (QANTAS) What has occurred is that a bailment now exists, and Corby is the bailor and QANTAS is the bailee, title to the luggage has not transferred to QANTAS, this remains with Corby, but at this point Corby has lost Possession of the luggage.
At this point a trust has been created and that QANTAS is the trustee of the luggage and Corby is the absolute owner of an item no longer in possession thus giving Corby a beneficial interest in the luggage, which Ong says is ‘the bare common law title’ without any beneficial enjoyment.
Lets examine what has occurred, Schapelle Corby has handed over her luggage, it has been weighed, there are no available records of the weight of her luggage, the luggage is no longer in her possession but she has retained ownership. QANTAS who is now in absolute possession of Corby’s luggage, moves it through x-ray machines to be loaded onto a Sydney bound aircraft.
It is at this point that Corby’s story starts, for she has maintained throughout, that the marijuana was not in her boogie board bag when she left Brisbane Airport and yet some where between Brisbane and Bali her luggage has been tampered with. It is constantly alleged by Corby that an unknown person has mixed the illegal substance in her luggage and that she had no knowledge and cannot explain who put it there.
The Indonesian judicial system is satisfied that possession in a carrier you admit ownership of, is sufficient to prove that you are guilty of importation of an illegal drug even though you claim you had no knowledge that some one had tampered with the luggage and placed it there.
Professor Eric Colvin along with Law lecturer Suzie Linden and Justice John McKechnie of the Supreme Court of Western Australia state in their publication ‘Criminal Law in Queensland and Western Australia’ third edition published by Butterworths 2001 the following. At page 169 ‘The central idea in the concept of possession is that of control. To possess a thing is to be in control of it, in the sense of directing its usage. Two forms of possession are recognised by the law, actual physical custody and constructive custody’.
They go on to say ‘Constructive custody refers to a situation where the thing is physically separate from the person (Corby’s luggage is with QANTAS) but the person is still in control of it. Constructive custody is recognised in section 3 of the Misuse of Drugs Act 1981(WA), which states that to possess includes to control or have dominion over.’ The difficulty for Corby is that the Indonesian judicial system believes she had control and possession and therefore she is guilty of importation of an illegal narcotic.
Confused, well lets try and get back to the basic meaning of the word Possession in the English language. Blacks Law Dictionary states that ‘In the whole range of legal theory there is no conception more difficult than that of possession. The Roman Lawyers brought their usual acumen to the analysis of it, and since their day the problem has formed the subject of a voluminous literature, while it still continues to tax the ingenuity of jurists’.
A reasonable person, would simply say what a load of nonsense, when I don’t have my luggage and it is some where between me and the baggage handler and the hold of an aircraft out of sight and able to be interfered with by any number of unknown persons, how can it be successfully be argued you have control over your luggage and least of all state you still have possession.
The High Court of Australia has examined the problem of possession, control and knowledge. The case of He Kaw Teh v. The Queen 1985, the High Court were concerned with what the parliament intended when they introduced the penalty for trafficking in illegal narcotics.
In Sherras v. De Rutzen (1895) 1 QB Justice Wright said “There is a presumption that mens rea, an evil intention, or a knowledge of the wrongfulness of the act, is an essential ingredient in every offence; but that presumption is liable to be displaced either by the words of the statute creating the offence or by the subject-matter with which it deals, and both must be considered."
He then went on to give examples of regulatory provisions which excluded the presumption of mens rea. In Brend v Wood (1946) 62 TLR 462 Lord Goddard CJ re-stated the rule, at p 463:
"It should first be observed that at common law there must always be mens rea to constitute a crime; if a person can show that he acted without mens rea that is a defence to a criminal prosecution. There are statutes and regulations in which Parliament has seen fit to create offences and make people responsible before criminal Courts although there is an absence of mens rea, but it is certainly not the Court's duty to be acute to find that mens rea is not a constituent part of the crime. It is of the utmost importance for the protection of the liberty of the subject that a Court should always bear in mind that unless a statute, either clearly or by necessary implication, rules out mens rea as a constituent part of a crime, the Court should not find a man guilty of an offence against the criminal law unless he has a guilty mind."
The rule is not always easy to apply. Its application presents two difficulties - first, in deciding whether the Parliament intended that the forbidden conduct should be punishable even in the absence of some blameworthy state of mind and secondly, if it is held that mens rea is an element of the offence, in deciding exactly what mental state is imported by that vague expression. However they stand in marked contrast, all of which deal with the possession of prohibited imports in certain circumstances and all of which contain the words "without reasonable excuse (proof whereof shall lie upon him)". The absence of those words suggests that no reasonable excuse will avail a person who imports narcotics. That would lead to an absurdly Draconian result if it meant that a person who unwittingly brought into Australia narcotics which had been planted in his baggage might be liable to life imprisonment notwithstanding that he was completely innocent of any connexion with the narcotics and that he was unaware that he was carrying anything illicit.
On the other hand, if guilty knowledge is an ingredient of the offence, it becomes understandable that no excuse should be allowed to a person who has knowingly imported narcotics. This provides an indication, although only a slight one, that the Parliament did not intend to displace the presumption of the common law that a blameworthy state of mind is an ingredient of the offence.
Another case that dealt with the issue is Sweet v. Parsley (1970) AC and Gammon Ltd. v. A.-G. of Hong Kong,. A person bringing baggage into a country can no doubt take care to ensure that no drugs are contained in it. The public interest demands that such care should be taken. There is thus an argument, the strength of which I shall later consider, in favour of the view that the Parliament may have intended to penalise importation that was no more than careless. Clearly, however, no good purpose would be served by punishing a person who had taken reasonable care and yet had unknowingly been an innocent agent to import narcotics.
Once again in White v. Ridley which proceeds on the assumption that an innocent agent, a person who does not know that s/he is bringing narcotic goods into the country, will not commit the offence. The critical question is whether it is enough that the offender intended to import a bag or parcel, even though s/he did not know what it contained, or whether knowledge of the nature, and possibly of the quality, of the prohibited thing imported is an element of the offence. Since, as I have indicated, I find it impossible to suppose that the Parliament intended to make the offence one of absolute liability, the only alternative to a requirement of guilty knowledge (by which I include willful blindness) is that no mental state is an ingredient of the offence, but that an accused is entitled to be acquitted if s/he honestly and reasonably believed that s/he was not carrying narcotic goods.
Let me take you back to when Schapelle Corby checked her luggage with QANTAS at Brisbane airport. I have produced a table of want happened to Corby’s luggage after she handed it over.
The argument is plain enough, Schapelle Corby’s luggage was not in her possession since she entrusted her luggage to QANTAS. The luggage was handled a minimum of thirteen times before she was reunited with it. There was ample opportunity for any number of people in any number of places to interfere with the luggage.
There have been cases before the courts that go back as far as the early eighties, where employees at the airports have been caught stealing from passengers luggage. The Australian Federal Police were involved in an under cover investigation into a drug syndicate that were moving illegal narcotics around Australia in unsuspecting passengers luggage. Before the passenger would reclaim the luggage the illegal narcotics would be removed at the new destination. The Australian Federal Police can verify that the baggage handlers were being investigated and so much so that QANTAS has dismissed some of these baggage handlers. The difficulty is convincing the Indonesian Judicial system that on the balance of probabilities this is a very plausible story considering Corby has maintained from the very first instance she was unaware of the illegal narcotics in her luggage.
Associate Professor Tim Lindsey, Director of the Asian Law Centre at Melbourne University was recently interviewed on the Australian Broadcasting Corporation (ABC Radio) by their legal reporter Mr Damien Carrick. During this interview Carrick discussed the persistent claims that Indonesian law presumes guilt, he said ‘the fact is that it certainly does not. Indonesian legislation clearly places the burden of proof on the prosecution and provides for a presumption of innocence similar to that which applies in Australia, the assumption that because Indonesia does not have juries, its trial process is inherently unfair. The fact is that the absence of juries is a feature of the European-derived Civil Law tradition, the legal tradition followed by most countries in the world today. Indonesia inherited this tradition from France via the Dutch, who colonised Indonesia
Professor Lindsey said although the Indonesian legal system provided the sorts of rights and protections for the accused that might be expected in Australian courts, they were not always upheld in the same way in practice’ he said.
Let’s look for a moment at what Professor Lindsay said, ‘Indonesian legislation clearly places the burden of proof on the prosecution and provides for a presumption of innocence similar to that which applies in Australia’
Earlier in this article I referred to a High Court decision that was handed down some 20 years ago that dealt with what the parliamentary elected representatives were attempting to achieve when they passed legislation for the Customs Act 1901. If you consider what is said in section 233B which refers to special provisions with respect to narcotic goods I would like to analyse some sections which state the following – (1AA) For the purposes of an offence against subparagraph (1)(a)(i), absolute liability applies to the physical element of circumstance of the offence, that the relevant possession is on board any ship or aircraft.
Then the Act in another section states (1AAC) A person commits an offence if: (a) the person:(i) exports goods from Australia; or (ii) fails to disclose to an officer on demand any knowledge in his or her possession or power concerning the exportation or intended exportation from Australia of goods; and (b) the goods are a prohibited export to which this section applies.
Considering this part of the Act, it would appear according to the Indonesian judiciary that Schapelle Corby exported from Australia to Indonesia 4.1 kilograms of a prohibited narcotic.
This is now within her knowledge, should Corby advise the Australian federal Police of what she has been charged and convicted?. Now, this may seem some what far fetched, but if our government is aware that Corby is supposed to have done this crime against the Customs Act then shouldn’t the Australian authorities seek Corby’s extradition to stand trial in Australia.
The crime has two legs, the first leg is Australia the second leg is Indonesia, Australia should seek extradition of Corby to stand trial in Australia for breaches against the Customs Act 1901.
The Act however does go on to say that in section (1A) On the prosecution of a person for an offence against subsection (1), being an offence to which subparagraph (1)(a)(iv) applies, it is a defence if the person proves that he or she did not know that the goods in his or her possession had been imported into Australia in contravention of this Act.
The parliament has dealt with this Act in such a way that there is the possibility that a person could have been used to carry illegal narcotics without their knowledge or consent and in that instance the parliament accepts that strict liability for having in your luggage an illegal narcotic that you did not place there should not place you in incarceration for up to 25 years,
this was the position in He Kaw Teh v. The Queen 1985.
The Indonesian judiciary as pointed out by Professor Lindsay is not unlike the Australian system of justice, innocent until you are proved to be guilty is their system. The difficulty however in the Corby case that I have is if the burden of proof is wholly on the prosecution to prove beyond reasonable doubt and then the burden of proving your innocence shifts to the accused it would appear to me from the investigations that I have done, that there appears to be significant gaps in what an acceptable level of procedure would be in Australia.
The Indonesian judicial system has convicted Corby based on possession of an illegal narcotic and that she imported it into Indonesia. Without repeating the earlier comments in this article, if she was not aware of the contents wouldn’t a reasonable test for a law enforcement officer be to isolate the evidence and keep the evidence in an uncontaminated environment.
All I am saying here, is that customs officials who inspect luggage on a daily basis in the search for contraband and illegal narcotics surely would have in place procedures that in the event a passenger is caught with illegal narcotics in their luggage that the customs official(s) would isolate the evidence so that finger prints could be taken to establish if Schapelle Corby had handled the plastic bag that contained the marijuana.
This I would have thought should have been part of the burden that the prosecutor was required to establish, you must remember this charge if convicted requires beyond reasonable doubt. The prosecution has failed in the most basic requirement and that should have been sufficient for Corby to have been acquitted.
At this point I want to remind you of what I said at the outset of this article, it is not my intention to argue whether Corby is guilty as charged by the Indonesian judicial system. My sole purpose is to activate a solution to a serious contravention of human rights.
If your grand mother was accused of the same crime how would you convince the Indonesian authorities of her innocence and why would your relative be any more innocent than Corby? Now that we have progressed to this point you may now understand the difficulties.
If the Indonesian judicial system has reasonable doubt, and that the burden of proof is on the prosecution and they are required to follow basic standard normal probative inquiries, such as finger printing then why have they not done this?
Let me take you a bit further, why wasn’t the plastic bag examined as to it’s origin and why wasn’t the marijuana tested for it’s origin?
One of the biggest events that occur on the Gold Coast in October is the Indy event. Corby was arrested at Bali Airport on the 8th October 2004. The Indy event on the Gold Coast attracts many enthusiasts who would be in party mode. Some of these people use illegal narcotics, and they purchase the narcotics from sophisticated networks that they seem to be aware of.
A curious point I wish to bring your attention to is, marijuana is very available in Bali, and I am told for much less cost than purchasing the product within Australia. What if the marijuana was carefully packed into a plastic bag that fitted inside the standard boogie board carry case in the baggage handlers’ area of Bali Airport? For what purpose you may ask, well it may have been a deliberate decoy that someone who was attempting to get a great amount of marijuana out of Bali to Australia for the Indy motor racing event held on the Australian Gold Coast each October needed a diversion.
While the customs officials would be all over their drug find the real crime was going on behind the scenes without any interference. As it is now common knowledge in Australia the (some) Australian baggage handlers are guilty of a scheme to interfere with luggage which has been proven by the Australian Federal Police.
I have colleagues who were in attendance with the Corby legal team as researchers and assistants who did travel to Bali and who did meet the prosecution. The question was asked, why not check the origin of the marijuana, and check if the plastic bag is in fact available in Australia. The prosecution did not have any desire to allow forensic teams to do this which has been a serious concern for me as these basic tests could actually prove the innocence of Corby.
Indonesia is a party to a great many International conventions to which Australia is also a member. One in particular is the ICC which refers to the International Criminal Courts. The primary function of this court is not to deal with individuals, but to deal with States who violate human rights. It is suggested that the Indonesian Judicial system, in the case of Corby have breached their obligations to provide a just and fair legal process using the available probative norms of law that are available in the world today. It would not be a fanciful idea that the ICC investigates the behaviour of the Indonesian Judicial system for the incarceration of human beings who may well be innocent.
I am fully aware that these comments could in fact point the way to the opening of the flood gates, but when I was taught law it was drummed into me that our system of criminal law is that it has been designed to let nine guilty men walk free rather than imprisoning one innocent human being. Indonesia owes this same level of protection to all human beings while in their legal jurisdiction.
Your own flesh and blood could one day be faced with the same difficulties that face Schapelle Corby, how would you deal with it, who would you turn to for help, how long would justice take?
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