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Corby case a lesson

By Steven Freeland - posted Thursday, 26 May 2005


Tomorrow the Denpasar District Court is expected to give its decision in the trial of Schapelle Corby. Amid the distractions of the sometimes chaotic conduct of the trial and its unfortunate exploitation by certain sections of the Australian media, we should not forget there is a simple but extremely important point to all of this - whether the court, on the evidence presented to it, will find Corby guilty of charges involving the alleged importation last October of more than 4kg of cannabis.

As has been well documented, the consequences of this decision are extremely serious. While it seems that the possibility of a death sentence if she is found guilty has receded, she still could face the prospect of a very lengthy prison sentence. Despite the attempts of the media to sensationalise the situation, this is a very sobering thought.

The more recent arrest of the so-called "Bali Nine" and their alleged associates complicates the situation, and could be seen as adding weight to calls by the prosecution in the Corby case for a strong anti-crime message to be sent by the court. In this context, every Australian would share in Prime Minister John Howard's "fervent" wish that the decision is fair and just in the circumstances.

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So what important messages should we take from the Corby trial?

Without in any way wishing to pre-empt the court's decision, it presents a clear reminder that all Australians - with the exception of diplomats accorded immunity in certain circumstances - are subject to the laws that exist in the country in which they find themselves.

There is no legally valid argument that would allow an Australian accused of violating local laws to assert that he or she should not be prosecuted simply because those laws are different from the law as it exists in Australia. This also extends to the range of sentences that may be applicable.

Once more this is dependent on the local law of the country concerned. While most of us would find the notion of the death penalty abhorrent, it is a sad but true reality that about 60-70 countries of the world still do have this sanction on their statute books.

It is not entirely clear whether an argument before an international court that the death penalty was illegal would (yet) succeed.

Of course, if an Australian was sentenced to death, the Australian Government could and should make strong diplomatic representations to try to have this sentence altered by the relevant government. However, this is a diplomatic rather than a legal issue. Unfortunately, there are an increasing number of Australians who are facing criminal prosecution before the courts of other countries.

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Perhaps it is worthwhile reflecting on the need for a more visible public campaign to provide us all with more education about the risks associated with any criminal conduct overseas. It is undoubtedly the case that the Australian Government is restricted in the ways it can assist those Australians facing charges overseas. The point has been made on a number of occasions that Canberra is unable to intervene in the domestic legal processes in another country and seek to impose our standards in any trial involving Australians.

We all witnessed the confusion on Corby's face as she was confronted with a legal process - in an unfamiliar language - that was in every sense "foreign". Yet, because it is different, it does not necessarily mean that it is unfair. Even if we perceive it as such, there is limited scope for Australia to try to alter this process in order to make it more "familiar". Having said this, there are various things the Government is legally entitled to do.

One of these is to provide whatever consular assistance and support it can to the accused person. For example, it was disturbing to hear reports last week about the plight of Australian citizen Talaal Adree, who allegedly has been held in a Kuwaiti prison since February without any access to Australian officials.

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First published in The Courier-Mail on May 25, 2005.



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About the Author

Steven Freeland is Senior Lecturer in International Law, University of Western Sydney, and recently has been appointed as a Visiting Professional at the International Criminal Court, The Hague.

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