Schapelle Corby

The Indonesian legal system is very different to ours, which is one reason why it is difficult to believe that Schapelle Corby will receive justice. Tim Lindsey explains how it works.

Alan Saunders: It's been a week that's ended with a couple of legal stories. Ray Williams, and before him, Rodney Adler was off to the chokey, or as Adler put it, 'sent to his room'. He was apparently under the impression that he was being punished by the Australian government, which shows a poor understanding of our legal system and of the separation of powers.

And if we can't understand our own legal system, what chance do we have with that of another country? Which brings us to the other legal story of the week: Schapelle Corby is in hospital in Bali after collapsing on her arrival at court on Thursday for the next stage of her trial for smuggling drugs.

The case has received enormous interest in this country. In fact one of the reasons she collapsed was that she was being smothered by the Australian media scrum on her way into the court. There's a lot of sympathy here for the young beauty student facing the possibility of a death sentence, particularly as the Indonesian justice system is so different to ours. The Prime Minister has said that we must respect the processes of the Indonesian justice system. Well, so no doubt we must, but do we really know what those processes are?

Well according to Tim Lindsey, who is Director of the Asian Law Centre at the University of Melbourne, and has written on Indonesian law and society, the fact that it's a different system doesn't mean that it is a corrupt system, or that Schapelle Corby won't receive justice. And to talk about this, Tim Lindsey joins us now. Tim, welcome to Saturday Breakfast.

Tim Lindsey: Thanks, Alan.

Alan Saunders: Now Corby, as I said, collapsed while she was on her way into court to hear whether the prosecution will be asking for the death penalty. Now that's before she's even been found guilty, and that seems strange to us for a start.

Tim Lindsey: Well perhaps yes, but it actually works quite well. The system goes that at the end of the presentation of evidence the prosecution has the opportunity to indicate what sort of sentence it would like, in a sense, what we would call sentencing submissions are made prior to the judges' deliberation. The advantage of this is that it allows the judges to deal with both conviction and sentence in one hit, so when they give their verdict they will also proceed straight to sentencing.

Alan Saunders: Now Schapelle's father, Michael Corby, has said 'everything's reversed here, you're guilty until you're proven innocent.' Now he's an upset and concerned man of course, but in fact is the Indonesian justice system very different to ours?

Tim Lindsey: Well it is indeed quite different in many respects to our system, but that doesn't mean it's a sort of rogue legal system, or some sort of strange alien system. What it is, is a version of the French legal system. The Indonesian legal system was introduced by the colonisers of Indonesia, the Dutch, and the Dutch in turn derived their system from the French, and it's a fairly classical, maybe a little archaic, French-Dutch system.

Alan Saunders: Yes, now what we're talking about here is normally captured by saying that this is the distinction between our system, which is an accusatorial system, and theirs which is inquisitorial, so perhaps you could just explain the difference.

Tim Lindsey: Well there are huge distinctions, and they go back in fact to the Napoleonic conquests in Europe. And the idea of civil law or European courts, is that the judges act in a fashion that's broadly comparable to what we would call a Royal Commission here, or a Commission of Inquiry. Their objective is to find the factual truth behind the events that are before them, and to that end, they have a broad discretion about what evidence they hear, about what facts they take into account.

Judges in a civil law system, that's the European system, may in some cases for example, be able to locate evidence themselves, certainly they can intervene in the system by asking questions of witnesses, which they frequently do and in fact did in Schapelle Corby's case. Now in our system, judges are not charged with the obligation of locating the factual truth, but of deciding in a most reasonable fashion, or whatever burden of proof is placed on them in different proceedings, but deciding on the basis of the evidence that the parties put before them in accordance with rules of evidence. So you have a broader discretion to deal with facts and information in the European system than in our system. If we take for example, the witness who gave evidence, John Ford, in this case: in Australia -

Alan Saunders: This was the Australian prisoner who overheard her being discussed in prison?

Tim Lindsey: Yes. His evidence is in an Australian system, the courts would wait for one of the parties to put him forward as a witness, it would then conduct an inquiry into whether or not the evidence that he was proposing to adduce was acceptable within the framework of the laws of evidence of this country, or make a decision as to whether it would hear him or not, and as that then proceeds, parties can object and narrow down what evidence the court can take into account. And that evidence, once it is in front of the judges, is more or less binding on them.

Now in a European or civil law system, it's quite different. The judges will generally allow the parties to put more or less what evidence they choose in front of them, and may actually seek evidence themselves to supplement it, and would allow most things in. What they then do is they weigh up the merits of all that evidence in their deliberations and decide what weight they will attach to it, and then in their judgment, indicate whether they think it's significant or insignificant, or whether they will take it into account at all. In other words, in the British-derived Australian system, we decide whether the evidence is any good before we hear it, in their system they hear it, and then decide whether it's any good. There's certainly, as you can guess, some pretty good arguments for the European system. It allows much more information to come before the courts than our system, but it certainly is different.

In the Schapelle Corby case, Ford has given his evidence, but I don't think we should assume that it will be given any weight at all by the court.

Alan Saunders: Well in this case, given the evidence that's been presented, would Schapelle's case have got this far under our system, or imagine that she were being tried in former British colonies like Singapore and Malaysia, would it have got very far under that sort of system? Is there sufficient evidence for us, let's say?

Tim Lindsey: I think that as it stands now in the Indonesian court, it is likely that Schapelle Corby will be convicted, and I think that she would find herself in a similar position if she was being tried in a common law system such as ours. The reason for that is that her defence hangs largely on the evidence of Ford.

What Ford said is that while in prison he heard two prisoners talking, who indicated that a third person had been responsible for placing the cannabis in her luggage, and when cross-examined in the court by the judge, he refused to name that person incidentally. Now that evidence is what we would call here in Australia hearsay. Usually in our courts, that sort of hearsay evidence would not be admitted in the first place. She was caught with 4.1 kilograms of cannabis in her luggage and that creates a prima facie case really for the prosecution. Her defence is it was somebody else. There are many hypotheses about what happened that might well be true, but none of that evidence has been put before the court in Bali. Her evidence is based on a flat denial. 'They're not my drugs, I didn't put them there, I don't know who put them there'. That denial is of course quite consistent with innocence, but it is also what you might expect a guilty person to say. That's the problem, it's a real dilemma for her. If she is innocent, (I have no views as to her guilt or innocence) but if she's innocent, that is what she would say; if she's guilty, that's what she would say.

The problem is here, what we're coming back to, this is nothing to do with an inadequate legal system, it's nothing to do with there being something inherently flawed in the European legal system, yes there are problems in developing countries in any system, whether it's British or European. The problem is really you can't expect to succeed in court without hard evidence.

Alan Saunders: Obviously in order to defend her case in an Indonesian court, she has to have an Indonesian legal team; how do you think they've handled it?

Tim Lindsey: I think that any foreigner, whether it's a private citizen or a company in an Indonesian court, will need some very skilled and effective representation, and it seems to me that if Schapelle Corby had got one of Jakarta's hard-hitting, streetwise senior lawyers, for example like the ones who defended Abu Bakar Bashir so effectively, she might have been able to present a stronger defence case, and maybe put some of the material that is occupying the public here of the hypothesis relating to baggage handlers before the courts, she might be in a different position now.

Alan Saunders: So what's the best thing that Australia can do? I mean at what point does all this media attention become counter-productive?

Tim Lindsey: In the broader issues here, that drugs cases in Bali are very common because of the high tourist numbers that go to Bali. Bali, after Jakarta and Surabaya, is probably one of the centres for drug-related crime in Indonesia, and the courts process large numbers of drugs cases there, just as they do in our major cities. The Australian media is not interested at all in Indonesians going through that court, or in other nationals going through those courts and receiving these sorts of sentences, whereas we have a massive media circus as soon as an Australian woman faces those same charges. And this creates a sense of resentment in a country that after all fought a revolution, an armed revolution for independence against colonisers. There is an anti-narcotics group in Indonesia that has been loudly protesting around the court room in the Corby case, demanding that she receive the death penalty on the grounds that all the other traffickers receive life or death for smaller amounts than Corby's accused of.

So why should she be treated differently? Then there is that sense that creates - and there's a lot of cynicism in Bali about the behaviour of foreign tourists, and drugs, sex and other things. And I think this huge pressure in the media, the visits of senior figures to Indonesia, lobbying on Corby's behalf, probably is not helping her.

Alan Saunders: Well, we'll find out what the outcome's going to be very, very soon. Tim Lindsey, thank you very much for joining us on Saturday Breakfast.

Tim Lindsey: That's a pleasure.

Alan Saunders: And Tim Lindsey is the Director of the Asian Law Centre at the University of Melbourne.