Article 8 of the Indonesian Code of Criminal Procedure, Article 18 of the Indonesian Human Rights Law, Article 14 (2) of the International Covenant on Civil and Political Rights, to which Indonesia is a signatory, and Article 11 of The Universal Declaration of Human Rights, all state the following in so many words:
“Everyone charged with a criminal offence shall have the right to be presumed innocent until proven guilty according to the law, in a public trial, at which he or she has had all the guarantees necessary for their defence.”
The onus was therefore on the Prosecution to prove guilt, rather than on the Defence to prove innocence, in Schapelle Corby’s case. However, they didn’t do this. Their case was weak and lacked evidence. Apart from the marijuana itself, the only other evidence they presented was the testimony of four men, and this testimony was unsupported by CCTV footage, which it could, and should have been, considering how important it was to the outcome of the trial.
Since Schapelle’s boogie-board bag was unlocked from the time it left the Corby’s home to the time it arrived on the Customs counter at Ngurah Rai Airport, anyone could have inserted the plastic bag of marijuana into it during that time, at any stage in its journey.
For Schapelle to be guilty of importing a prohibited drug, the Prosecution would have to prove that she had put the drugs into the boogie-board bag herself or, at the very least, prove that she knew the drugs were in there prior to opening the bag. They would also have to prove that the drugs actually came from Australia.
She certainly could not have been found guilty of drug smuggling, since to smuggle means to convey secretly. Having the drugs in a clear plastic bag, inside an unlocked boogie-board bag with your name on, and then willingly opening that bag for inspection thus exposing the drugs, cannot be construed as conveying secretly!
For Schapelle to be guilty of drug trafficking, the Prosecution would have to prove that she had some connection with a drug distribution network in Bali. Since she was there to help celebrate her sister’s 30th birthday and have a holiday on the beach, to suggest that she intended spending her entire fortnight trying to sell the drugs off piecemeal in a foreign country, is nothing short of absurd.
Any one, or all, of the following points could have been investigated by the Balinese Police, to assist the Prosecution in building their case against Schapelle, and if they had been doing their job properly one would have expected them to do so:
· Checking for fingerprints on both the outer and inner plastic bags in which the marijuana was packed. If her fingerprints appeared on either bag - Guilty.
· Weighing the entire luggage that had been checked in under Schapelle Corby’s name at Brisbane Airport. Put the bag of marijuana on the scales at the same time, then compare this weight with the checked-in weight. If the two weights were the same then the marijuana was in her bag at check-in - Guilty.
· Forensically testing the marijuana to determine its country of origin and THC content. Proving that the marijuana came from Australia, while not exactly proving that Schapelle was guilty, would have provided them with a prima facie case. It would also have been necessary, to establish that the drugs were, in fact, imported. If, on the other hand, Schapelle’s DNA had been matched against the DNA of any hair or skin fragments found amongst the drugs - Guilty.
· Accessing the CCTV footage from the camera above the Customs counter at Ngurah Rai Airport. The Customs Officer there, Gusti Winata, testified that Schapelle displayed signs of nervousness, was hesitant about opening her boogie-board bag, and pushed his hand away when he tried to open it. If true, this footage would have corroborated his story and would have proved that Schapelle had prior knowledge of the drugs in her bag - Guilty.
This last point was as vital to the Prosecution’s case as it was to the case for the Defence, as we will see later.
The presence of the marijuana in Schapelle Corby’s boogie-board bag was not, on its own, grounds for a conviction. Under Indonesian Law, the Prosecution is required to produce some form of secondary evidence, with which to back up the primary evidence.
Had the results from any one of the first three points above favoured the Prosecution’s case, it would have provided them with secondary evidence. As such, it is reasonable to assume that they would have wanted these points investigated, and that the Police would have done so.
The fact that not one of these points was ever investigated seemingly defies all logic, unless we look at the alternate hypothesis. These points, if properly investigated, could just as easily have proven Schapelle’s innocence, and they would have done.
So, were the Police just playing it safe, to protect the Prosecution’s case at all cost, or did they know in advance which way the results would go? If the latter is true, then how did they know?
The only people who actually asked for these points to be investigated, pleaded for it in fact, were Schapelle and her Defence Lawyers. Schapelle even signed a consent form allowing the AFP to forensically test the marijuana, in order to ensure an impartial and fair result.
Since the AFP’s brief in a case like this is to assist the Prosecution and not the Defence, asking for this forensic testing, and asking for these other points to be investigated, would have been utter stupidity if Schapelle had, in fact, been guilty. The results would only have further incriminated her. If, on the other hand, the forensic tests had proven that the drugs were not from Australia, Schapelle would have been exonerated immediately and the finger pointed at the Balinese, particularly the Police.
As it was, her requests in regard to all of the above, and those of her Lawyers, were all denied. Not only were they denied by the Balinese Police, who refused to give the AFP a sample of the marijuana for testing, they were also denied by the Judge. This was a total obstruction of justice, as it severely limited Schapelle’s chances of mounting an effective defence. One has to ask though, why were the Balinese Police so against conducting these forensic tests, or allowing anyone else to conduct them?
An investigation by the Police into how Schapelle planned to rid herself of the drugs could also have provided secondary evidence. It would have been necessary, in any case, to support the trafficking charge. Had a link between her and any one or more drug distribution networks in Bali been established - Guilty.
Although no investigation of this nature was ever carried out, and no evidence or testimony was ever presented by the Prosecution to support the trafficking charge, it did not stop the Judges from finding Schapelle ‘Guilty’ of trafficking anyway. In so doing, they were then at liberty, under Indonesian Law, to impose a sentence in excess of 10 years, this being the maximum allowable for possession and importation alone.
An investigation by the AFP into how Schapelle might have grown or acquired 4.2kg of marijuana would have been quite in order. Working with their Balinese counterparts, to eliminate any further transnational drug importations of this type into Indonesia from Australia, would have been in the interests of both countries. Had a link between Schapelle and any known drug dealers in Australia been established - Guilty.
Although they were never informed that their affairs and finances were being looked into, the Corby’s are fairly certain that they were. Clearly, however, there was nothing irregular about either, since no further investigation was ever carried out. Not one family member has ever been questioned by the AFP in relation to this crime.
Had Schapelle been a drug user, particularly a marijuana user, and had she been caught using or possessing drugs of any kind following her arrest, this fact could also have been used as secondary evidence - Guilty.
To the detriment of the Prosecution’s case, Schapelle was not a drug user and her blood and urine tests proved this. Nor was she, or has she ever been, caught in possession of drugs.
Even now, when it would be so easy for her to descend into the darkness, and numb her pain with the wide variety of illicit drugs that are readily available in Kerobokan Prison, she chooses not to, even when so many of her fellow inmates have.
So, with no fingerprints, no weight comparison, no forensic test results, and no investigation into how Schapelle had acquired the drugs or how she intended to get rid of them, when she tested negative to drug use the Prosecution found themselves with no secondary evidence.
The Police did attempt to help them out, trying twice to trick Schapelle into signing a confession, both times written in Indonesian which she could not speak or read at the time, the first one just hours after her arrest. They also tried to plant drugs on her in the Polda visitor’s room. However, these measures all failed.
How bizarre that the Police would resort to these underhanded tactics, in an attempt to provide secondary evidence, when they had already passed up so many legitimate ways of achieving the same result.
In the end, the testimonies of the two Customs Officers and two Anti-Drug Squad Officers, who were present in the airport at the time, formed the basis of the Prosecution’s secondary evidence. For the crimes of possession and importing a Class One Narcotic, and for trafficking, Schapelle Corby was convicted and sentenced to 20 years in a third world prison. She was convicted on the strength of their testimonies, and their testimonies alone. That there was no proof the drugs even came from Australia, and no evidence to suggest that Schapelle had links with a drug distribution network in Bali, was totally ignored.
Gusti Winata was the Customs Officer at the counter when Schapelle’s boogie-board bag arrived there.
Winata testified that he asked her to open the boogie-board bag but she refused, saying there was nothing in there. She was nervous, and when he tried to open it himself, she pushed his hand aside and said, “No.” He proceeded to open it a bit, at which time she yelled, “No!” When the Judge asked if Schapelle agreed, she said, “No, he's lying.”
So, with no fingerprints, no weight comparison, no forensic test results, and no investigation into how Schapelle had acquired the drugs or how she intended to get rid of them, when she tested negative to drug use the Prosecution found themselves with no secondary evidence.
The Police did attempt to help them out, trying twice to trick Schapelle into signing a confession, both times written in Indonesian which she could not speak or read at the time, the first one just hours after her arrest. They also tried to plant drugs on her in the Polda visitor’s room. However, these measures all failed.
How bizarre that the Police would resort to these underhanded tactics, in an attempt to provide secondary evidence, when they had already passed up so many legitimate ways of achieving the same result.
In the end, the testimonies of the two Customs Officers and two Anti-Drug Squad Officers, who were present in the airport at the time, formed the basis of the Prosecution’s secondary evidence. For the crimes of possession and importing a Class One Narcotic, and for trafficking, Schapelle Corby was convicted and sentenced to 20 years in a third world prison. She was convicted on the strength of their testimonies, and their testimonies alone. That there was no proof the drugs even came from Australia, and no evidence to suggest that Schapelle had links with a drug distribution network in Bali, was totally ignored.
Gusti Winata was the Customs Officer at the counter when Schapelle’s boogie-board bag arrived there.
Winata testified that he asked her to open the boogie-board bag but she refused, saying there was nothing in there. She was nervous, and when he tried to open it himself, she pushed his hand aside and said, “No.” He proceeded to open it a bit, at which time she yelled, “No!” When the Judge asked if Schapelle agreed, she said, “No, he's lying.”
Schapelle, on the other hand, testified that when James was asked if the boogie-board bag was his, she said, “No, no, it’s mine. Here you go...” and placed it up on the counter. She noticed that the zips had been tampered with but thought nothing of it and, without being asked to do so, willingly unzipped the bag for inspection. She was immediately struck by the smell and sight of the marijuana, and in a panic she zipped the bag up again.
The second Customs Officer to testify, Komang Gelgel, gave the following testimony.
The second Customs Officer to testify, Komang Gelgel, gave the following testimony.
According to Komang, when asked about the bag of marijuana, Schapelle said, “This is mine, I own it.”
In response to this Schapelle said, “I never at any stage stated that the marijuana belonged to me. Never, ever, have I stated that.”
Komang’s statement was clearly a lie, since no one in their right mind would admit to owning the drugs, whether it was true or not.
These testimonies were later backed up by the testimonies of two Anti-Drug Squad Officers, both of whom were in the airport at the time the boogie-board bag was placed on the counter.
Despite being a considerable distance away from the counter in what was, at the time, a crowded airport, both claimed to have seen Schapelle push Winata’s hand away when he tried to open the boogie-board bag. Both also claimed to have heard Schapelle say that the drugs belonged to her, even though neither of them could speak English!
It was Schapelle’s word against theirs.
People can easily lie, but cameras cannot.
Had the CCTV footage from the camera above the Customs counter been made available in court as requested, it would have instantly corroborated one version of events or the other. Since it was Schapelle and her Lawyer Erwin who requested it, it’s logical to assume that it would have favoured her testimony.
Initially, the Judge agreed to look into it, this later became, “We’ll get it if we need to,” but in the end he never found the need. If the footage had favoured the Prosecution’s case, would he have found the need then?
Komang’s statement was clearly a lie, since no one in their right mind would admit to owning the drugs, whether it was true or not.
These testimonies were later backed up by the testimonies of two Anti-Drug Squad Officers, both of whom were in the airport at the time the boogie-board bag was placed on the counter.
Despite being a considerable distance away from the counter in what was, at the time, a crowded airport, both claimed to have seen Schapelle push Winata’s hand away when he tried to open the boogie-board bag. Both also claimed to have heard Schapelle say that the drugs belonged to her, even though neither of them could speak English!
It was Schapelle’s word against theirs.
People can easily lie, but cameras cannot.
Had the CCTV footage from the camera above the Customs counter been made available in court as requested, it would have instantly corroborated one version of events or the other. Since it was Schapelle and her Lawyer Erwin who requested it, it’s logical to assume that it would have favoured her testimony.
Initially, the Judge agreed to look into it, this later became, “We’ll get it if we need to,” but in the end he never found the need. If the footage had favoured the Prosecution’s case, would he have found the need then?
Let’s not underestimate the importance of this point. The testimony of these four men was the Prosecution’s only secondary evidence. They had nothing else.
If these men were lying, and it’s reasonable to assume that they were, then the evidence was inadmissible and the case against Schapelle Corby was over.
The Judge would have had no choice but to acquit Schapelle of all charges and set her free.
If these men were lying, and it’s reasonable to assume that they were, then the evidence was inadmissible and the case against Schapelle Corby was over.
The Judge would have had no choice but to acquit Schapelle of all charges and set her free.
According to the Law of Indonesia, there would have been no grounds for a conviction.
Not only should access to that camera footage have been allowed, the Judge himself should have insisted on it. The testimony of these men was both crucial and damning, and Schapelle had every right to request this footage for the purpose of refuting it outright. When the Judge failed to comply with the request he was, essentially, siding with the Prosecution.
His failure to allow the footage into court, considering the importance of it to the case, was totally inexcusable.
In the end, Schapelle Corby was never proven Guilty, she was merely judged to be ‘Guilty’, by a Judge prepared to take the word of liars over that of Schapelle herself, a Judge who had never acquitted a defendant in over 500 previous drug related cases. Is it any wonder why?
For him and the other two Judges to find Schapelle ‘Guilty’, without attempting to confirm, or prove to the World, that the evidence upon which they would base their verdict was true and correct, especially when this evidence was in dispute, was an outrageous travesty of justice.
Schapelle’s first appeal could have been based on this one point alone.
Even now, it should be sufficient grounds for her conviction to be overturned.
To this day, not one piece of evidence has ever been produced, by the Balinese Police or Australian Federal Police, which links Schapelle Corby with the plastic bag of marijuana found in her boogie-board bag on the 8th October 2004. Whether or not the drugs actually came from Australia has never been established, and they were burned, untested, in March 2006, well before Schapelle's avenues of appeal had been exhausted.
Not only should access to that camera footage have been allowed, the Judge himself should have insisted on it. The testimony of these men was both crucial and damning, and Schapelle had every right to request this footage for the purpose of refuting it outright. When the Judge failed to comply with the request he was, essentially, siding with the Prosecution.
His failure to allow the footage into court, considering the importance of it to the case, was totally inexcusable.
In the end, Schapelle Corby was never proven Guilty, she was merely judged to be ‘Guilty’, by a Judge prepared to take the word of liars over that of Schapelle herself, a Judge who had never acquitted a defendant in over 500 previous drug related cases. Is it any wonder why?
For him and the other two Judges to find Schapelle ‘Guilty’, without attempting to confirm, or prove to the World, that the evidence upon which they would base their verdict was true and correct, especially when this evidence was in dispute, was an outrageous travesty of justice.
Schapelle’s first appeal could have been based on this one point alone.
Even now, it should be sufficient grounds for her conviction to be overturned.
To this day, not one piece of evidence has ever been produced, by the Balinese Police or Australian Federal Police, which links Schapelle Corby with the plastic bag of marijuana found in her boogie-board bag on the 8th October 2004. Whether or not the drugs actually came from Australia has never been established, and they were burned, untested, in March 2006, well before Schapelle's avenues of appeal had been exhausted.
The Innocent Should Not Be Punished
