Breaches of the Indonesian Code of Criminal Procedure (KUHAP) in the Schapelle Corby Trial

Independent Research Paper
» Introduction
» General Aspects
» Chronological Study
» Further Aspects
» Appendix I
» Appendix II
 
 
 

 

 

 

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3. A CHRONOLOGICAL STUDY:

The following study examines some of the many breaches in a chronological manner:

 

Monday, 11 October 2004 :

On this day, Lily Lubis (case Lawyer) stated that: "There is no bail for drug-related offences in Indonesia , the only way to get her out is to prove she didn't do it.”  

Breaches of the Indonesian Code of Criminal Procedure (KUHAP):  

Article 8 - Presumption of innocence.

The defence were in error when they stated “The only way to get her out is to prove she didn't do it.” And the police, prosecution and judges appear to have conformed to this false assumption even though it does not comply with Indonesian law.  

Breaches of the International Covenant on Civil and Political Rights (ICCPR):  

Article 14 (2) - Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.  

Breaches of Indonesian Human Rights Law:  

Article 18 - Every person who is arrested, detained, charged or brought before a court has the right to be considered innocent until proven guilty.

 

NOTE: Indonesian law presumes innocence. Therefore, the onus is on the prosecutor to prove guilt. The onus is not on the defendant to prove innocence. The prosecution clearly did not prove guilt beyond reasonable doubt. Reasonable doubt certainly exists in Indonesian law. In fact the term itself was used in the final verdict.

     

Tuesday, 12 October 2004 :

On this day Bambang Sugiarto, Head of Bali’s drug squad, claimed the marijuana was “high purity and quality and would sell in Bali for about 14 times the price of locally grown marijuana.”

The Bali police, prosecutors and court accepted this claim as the truth without any supporting evidence. Despite their continuous and repeated demands, the defence were denied access to the evidence to test the marijuana for its quality and origin and to have the inner plastic bag and the inside surface of the boogie board bag tested for fingerprints. Throughout the first trial, the High Court appeal and the Supreme Court appeal, the defence was denied access to the evidence.  

Finally, on 17 March 2006 , the whole of the evidence was destroyed despite last minute pleas by the defence to preserve a sample.  

Breaches of the Indonesian Code of Criminal Procedure (KUHAP):  

Article 72 The evidence collected by the investigators is accessible to the suspect and his counsel. On their request, the official concerned must provide them with a copy of the report of the preliminary examination.

What about access to the marijuana?    

Breaches of the rules of evidence:

What are the rules of evidence?  

Please refer to the following for a full account of this issue:

Appendix 1: The Failure To Test for Fingerprints or Determine the Quality and Origin of the Marijuana

     

 

Monday, 1 November 2004 :

Lily Lubis stated: "Now we have to prove that it (the marijuana) does not belong to her."  

Breaches of the Indonesian Code of Criminal Procedure (KUHAP):  

Article 8 - Presumption of innocence.  

The defence were in error when they stated "Now we have to prove that it (the marijuana) does not belong to her."  And the police, prosecution and judges appear to have conformed to this false assumption even though it does not comply with Indonesian law.  

Indonesian law presumes innocence. Therefore, the onus is on the prosecutor to prove guilt. The onus is not on the defendant to prove innocence.  

Article 66 - The suspect or defendant shall not be burdened with the duty of providing evidence.  

Article 66 was not upheld. The defence attempted to prove Schapelle Corby’s innocence because they were always working under the premise that it was their job to prove innocence. They were wrong. It was always the prosecution’s responsibility to prove guilt. A failure to prove guilt must therefore result in acquittal.

Breaches of the International Covenant on Civil and Political Rights (ICCPR):  

Article 14 (2) - Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.

Breaches of Indonesian Human Rights Law:  

Article 18 - Every person who is arrested, detained, charged or brought before a court has the right to be considered innocent until proven guilty.

 

     

Week beginning Monday, 8 November 2004 :

It is reported that “Balinese police say this case is clear-cut: Corby was caught red-handed, so now it's a matter of the sentence she's given.”  

Breaches of the Indonesian Code of Criminal Procedure (KUHAP):  

Article 8 - Presumption of innocence.  

There is a clear assumption of guilt in this statement which breaches article 8. The police, prosecution, judges and the defence conformed to this false assumption even though it does not comply with Indonesian law.  

Indonesian law presumes innocence. Therefore, the onus is on the prosecutor to prove guilt. The onus is not on the defendant to prove innocence. The prosecution did not prove guilt beyond reasonable doubt. Reasonable doubt exists in Indonesian law. In fact the term was used in the final verdict.

Breaches of the International Covenant on Civil and Political Rights (ICCPR):  

Article 14 (2) - Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.  

Breaches of Indonesian Human Rights Law:  

Article 18 - Every person who is arrested, detained, charged or brought before a court has the right to be considered innocent until proven guilty.

 

     

Saturday, 5 March 2005 :

The Sydney Morning Herald reports: from the outset, prosecutor Wiswantanu insisted that the only way he would accept that Schapelle Corby was innocent was proof - visual or by weight - that the marijuana was not in the boogie board bag when she checked it in at Brisbane Airport . Or visual evidence of someone putting the drugs in the boogie board bag.

Breaches of the Indonesian Code of Criminal Procedure (KUHAP):  

Article 8 - Presumption of innocence.  

The prosecution presumed guilt when he set parameters for evidence for the defence. The prosecutor’s role is to prove guilt, not presume it. The prosecution clearly did not prove guilt beyond reasonable doubt. Reasonable doubt certainly  exists in Indonesian law. In fact the term was used in the final verdict.  

Article 66 - The suspect or defendant shall not be burdened with the duty of providing evidence.  

The following events resulted in the defendant being forced to seek any kind of evidence in a desperate bid to prove her innocence:  

·               The outer plastic bag was handled by many people without protective gloves before the bag could be tested for fingerprints.

·               The total weight of the baggage was not compared with the total weight checked in at Brisbane airport.

·               Neither an audio nor a visual recording was made of the initial discovery of the drugs at the customs counter, nor of the initial interrogation which took place in the interview room later

·               The X-ray machine was not equipped to take photographs - so no image was available to show the location of the marijuana in the boogie board bag before it got to customs.

·               Denial of access to the evidence for forensic tests.

Breaches of the International Covenant on Civil and Political Rights (ICCPR):  

Article 14 (2) - Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.

Breaches of Indonesian Human Rights Law:  

Article 18 - Every person who is arrested, detained, charged or brought before a court has the right to be considered innocent until proven guilty.

 

Wednesday, 30 March 2005 :

Judge Sirait revealed today that he could not comment publicly on the judges' current thinking about Schapelle Corby's guilt or innocence.  

Judge Wayan Suasatrawan echoed Sirait’s comments: "I cannot tell you whether we think [Ford] was credible or not but of course we will consider what he talked about."  

NOTE: Later, Sirait fails to uphold the law in this regard.

 

   

Wednesday, 6 April 2005 :

This is The Bulletin’s cover date, but it would have been distributed a week or more before this date. Judge Sirait tells The Bulletin that Schapelle Corby is “a polite and very well-dressed young girl”, and says he awaits evidence that conclusively proves her innocence.  

Breaches of the Indonesian Codes of Criminal Procedure (KUHAP):  

Article 158 – A judge is prohibited from showing by his attitude or by a remark during the trial whether or not he thinks the defendant is guilty.  

Sirait’s pre-verdict comments to The Bulletin reveal that at this time unless further evidence is produced, he has already decided Schapelle Corby is guilty.  

Article 8 - Presumption of innocence.  

Sirait’s pre-verdict comments to the Bulletin that he awaits evidence that conclusively proves her innocence revealed that he ignored article 8. According to the law, he is supposed to be awaiting evidence of her guilt not her innocence.  

Article 66 - The suspect or defendant shall not be burdened with the duty of providing evidence.  

Sirait’s pre-verdict comments to The Bulletin that he awaits evidence that conclusively proves her innocence revealed that he ignored article 66.  

Breaches of the International Covenant on Civil and Political Rights (ICCPR):  

Article 14 (2) - Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.  

Breaches of Indonesian Human Rights Law:  

Article 18 - Every person who is arrested, detained, charged or brought before a court has the right to be considered innocent until proven guilty.  

Potentially Breaches of Judges’ Code of Ethics:

There is almost certain to be an association specifically for Indonesian judges which will have a code of ethics to govern behaviour. It is difficult to see how this sort of comment could not be in breach of such a code.  

Breaches of KORPRI rules:

Along with all other public servants (or is the term “civil” servant?), judges must be members of an association called KORPRI which obliges all members to follow the association’s rules and policy guidelines, enforceable by sanctions. Again, it is hard to see how comments like those above could align with such rules.

 

 

Tuesday, 19 April 2005 :

It was reported today that Bambang Sugiarto said he was very concerned about the recent increase in drug smuggling cases involving Australians in Bali and said: "I think we need to send a warning to other Australians.”  

Breaches of the International Covenant on Civil and Political Rights (ICCPR):  

Article 26

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.  

Sugiarto’s comment singling out Australians is discriminatory on the grounds of national origin and also potentially reveals his personal prejudice against Australians. Also, at such a key stage of the trial, it clearly can be interpreted as setting the scene for the sentence which followed. 

 

 

Thursday, 28 April 2005 :

The eleventh court session. On the day that the defence team delivered its final submission, Judge I Gusti Lanang Dauh was reading a book in court called: Life Imprisonment.  

Outside the court, Judge Dauh explained he was reading the book before deciding Schapelle Corby's sentence. "Because there is a demand from the prosecutors for a life sentence, I am reading this book as a reference to add to my knowledge."  

It was still too early to reveal if he would give prosecutors what they had requested. "That's a secret," he said.

Breaches of the Indonesian Codes of Criminal Procedure (KUHAP):  

Article 158 – a judge is prohibited from showing by his attitude or by a remark during the trial whether or not he thinks the defendant is guilty.  

This judge showed by his attitude in court that he had already decided Schapelle Corby was guilty and only the sentence needed to be determined.  

Article 8 - Presumption of innocence.  

This judge’s attitude in court strongly suggests that he did not comply with the spirit of article 8.  

Breaches of the International Covenant on Civil and Political Rights (ICCPR):  

Article 14 (2) - Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.  

Breaches of Indonesian Human Rights Law:  

Article 18 - Every person who is arrested, detained, charged or brought before a court has the right to be considered innocent until proven guilty.  

Breaches of Judges’ Code of Ethics:

There is almost certain to be an association specifically for Indonesian judges which will have a code of ethics to govern behaviour. It is difficult to see how this sort of comment could not be in breach of such a code.  

Breaches of KORPRI rules:

Along with all other public servants (or is the term “civil” servant?), judges must be members of an association called KORPRI which obliges all members to follow the association’s rules and policy guidelines, enforceable by sanctions. Again, it is hard to see how comments like those above could align with such rules.

   

 

Thursday, 28 April 2005 :

Judge Sirait says the defence team has not "done enough" to prove Schapelle Corby’s innocence. As far as I can determine, he made the remarks today but the interview was published in The Weekend Australian on 30th April.  

Judge Sirait said: "From Corby 's defence I haven't heard anything to prove she is innocent."

Judge Sirait said Schapelle Corby’s final plea (Thursday 28 April) made no difference: "Not enough. He or she has to prove he or she is not guilty. Every inmate would say: 'I'm not guilty'. I'm still looking for something related to the law."

Regarding the sentence, Sirait appears to have said: "I'm already 75-percent decided, but I can't tell you our conclusion.”  

NOTE: If he is already 75 per cent decided about the sentence, it means that he has already decided whether she is guilty or innocent.


Judge Sirait also revealed he had never acquitted an accused drug offender in the estimated 500 such cases he had presided over in his 15 years on the bench.
In another article it is reported that Sirait made his controversial remarks to the Nine Network via a translator.

 Vasu Rasiah says today that he is puzzled by the statement from Judge Sirait that he is 75 per cent decided on what sentence Schapelle Corby should be given. Vasu Rasiah: "I'm surprised the judge can come openly and make a statement like that. My gut feeling is that they are experienced judges - they can see there is nothing conclusively that says Schapelle Corby is guilty."

Breaches: see Thursday 5th May 2005

 

   

Thursday, 5 May 2005 :

Vasu Rasiah criticised Judge Sirait over his pre-verdict observations that Schapelle Corby had not done enough so far to prove her innocence and said those comments could pave the way for a higher court appeal. Rasiah said the comments were amazing. "I cannot believe a judge as senior as him would say that. I don't think the judge has any right to say that."  

Breaches of the Indonesian Codes of Criminal Procedure (KUHAP):  

Article 158 – A judge is prohibited from showing by his attitude or by a remark during the trial whether or not he thinks the defendant is guilty.  

Sirait’s pre-verdict comments put doubts on his objectivity.  

Article 8 - Presumption of innocence.  

Sirait’s pre-verdict comment: “He or she has to prove he or she is not guilty” revealed that he completely ignored article 8.  

Article 66 - The suspect or defendant shall not be burdened with the duty of providing evidence.  

Sirait’s pre-verdict comment: “He or she has to prove he or she is not guilty” revealed that he ignored article 66.  

Breaches of the International Covenant on Civil and Political Rights (ICCPR):  

Article 14 (2) - Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.

 Breaches of Indonesian Human Rights Law:  

Article 18 - Every person who is arrested, detained, charged or brought before a court has the right to be considered innocent until proven guilty.  

Breaches of Judges’ Code of Ethics:

There is almost certain to be an association specifically for Indonesian judges which will have a code of ethics to govern behaviour. It is difficult to see how this sort of comment could not be in breach of such a code.  

Breaches of KORPRI rules:

Along with all other public servants (or is the term “civil” servant?), judges must be members of an association called KORPRI which obliges all members to follow the association’s rules and policy guidelines, enforceable by sanctions. Again, it is hard to see how comments like those above could align with such rules.

 

   

Sunday, 1 May 2005 :

This is the weekend when Sugiarto made a number of controversial comments on Bali television station SCTV and which were aired on Channel Nine. The interview was conducted in the Indonesian language.  

What he said:  

·              The case had not been properly completed and only 50 per cent of the necessary work had been carried out.

 

·              The prosecution case has many gaps and weaknesses.

 

·              The prosecution case was only half there because Indonesian Police have never done any fingerprinting. No fingerprinting was ever conducted on the drugs or on the boogie board bag.

 

·              Admitted the unlocked boogie-board bag had been contaminated by the number of people who handled it before it reached police headquarters.

 

·              He singled out the lack of video footage of the arrest at the airport as the prosecution's main shortcoming.

In the Nine Network’s Sunday program Ross Coulthart says: By contrast, when the Bali Nine were arrested last month, Indonesian Police were at pains to videotape themselves wearing gloves to ensure no evidence was contaminated. But nothing was filmed of Corby 's arrest, nor the crucial search at Airport Customs where she disputes stopping officers from searching her bag.  

Breaches of the Indonesian Code of Criminal Procedure (KUHAP):  

Article 72 The evidence collected by the investigators is accessible to the suspect and his counsel. On their request, the official concerned must provide them with a copy of the report of the preliminary examination.  

What about access to the marijuana?    

Breaches of the rules of evidence:

What are the rules of evidence?  

 

 

Friday, 27 May 2005 :

Schapelle Corby is pronounced guilty and sentenced to 20 years in prison.  

Breaches of the Indonesian Code of Criminal Procedure (KUHAP):  

Article 183 – A criminal charge is proved when the judge is convinced that the criminal act has really been committed and that it is the defendant who is guilty of perpetrating it, based on at least two pieces of evidence.  

The judge based his decision on:  

Evidence 1: the marijuana was found in her boogie board bag.  

Evidence 2: the disputed testimony of customs officer Winata and others whose English-language proficiency was never tested.  

Article 199 (1) (b) – A defendant can be acquitted on the grounds of insufficiency of proof.  

This is the concept also known as “reasonable doubt” and should have been applied to Schapelle Corby because there was insufficient proof of her guilt.  

Breaches of the International Covenant on Civil and Political Rights (ICCPR):

Article 14 (1) - All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.

 

NEXT: Further Aspects




  Schapelle: Please don't let her become a forgotten soul.