In Defense of Accused People Smugglers - ABC TV story on Stuart Jay Raj and David Svoboda's Work

Lawyers in Australia are set to lodge a compensation claim against the government of behalf of an Indonesia teenager detained for people smuggling.

And legal teams are going to great lenghts to represent other detainees, embarking on trips to Indonesia to gather evidence.

Last Updated: Wed, 6 Jun 2012 17:42:00 +1000

There are more than 150 cases involving Indonesian crew that are before Australia courts, and the cost of bringing such cases to trial has risen to around $AU14 million this financial year, up from $1,500,000 in 2009-2010, according to the Commonwealth Director of Public Prosecutions.

A Senate inquiry into mandatory sentences has found that while they are appropriate for people smuggler organisers, the punishment is unjust for boat crew.

Now, Australian judges and lawyers say the five-year mandatory jail terms are punishing the wrong people.

West Java defence

Legal teams are going to great lengths to represent those detained, embarking on trips to far flung parts of Indonesia to gather evidence on their behalf.

Australian lawyer David Svoboda has started another long journey to a remote part of Indonesia.

His client is from West Java and was caught and charged by Australian authorities for people smuggling.

“The reason for this trip is to visit my client’s home village,” Mr Svoboda said. “We want to inform juries as much as possible as to the backgrounds of men who’ve been charged with people smuggling.”

If found guilty, his client could face a mandatory minimum sentence of five years’ jail, with a three-year non-parole period.

“What the prosecutions have to prove in these cases is that these men had knowledge of Australia, Australian territorial issues and knowledge of asylum seeker issues and knowledge of visas and passports.”

Trips like Mr Svoboda’s to Indonesia, which are assisted by legal aid groups in Australia, are costly, time consuming and exhausting. But they have proven an effective legal strategy.

Mr Svoboda said every client he had visited in Indonesia in relation to a trial had been acquitted.

“I would think that the material we put together – the culturally based material that we put together for those trials – had some role in the acquittals that we’ve had.”

Mr Svoboda conducts many of these trips with translator, cultural expert and witness, Stuart Jay Raj.

Together they speak to the family and friends of those accused. They take notes, photographs and video of anything that might help them with their case.

It is often an emotional experience for the villagers. Many of the men have been away for more than a year.

“He was at my home everyday,” one relative told Newsline. “And now he’s been missing for so long.”

Many families do not know why their relatives have been arrested or what will happen to them.

It often falls to the legal team to explain the situation to them.

“If he’s found ‘not guilty’, he’ll be released and according to the rules, it should all be done by the end of September,” Mr Raj tells the client’s father.

“But if he’s found ‘guilty’, the judge will have to hand down a sentence, in accordance with the law, of five years’ jail.”

The father’s response was typical.

“I feel very sad, because I don’t get to see my own son. I miss him so much. I hope he can return home.”

Mr Raj said in some cases, families resort to extreme measures to cope with the absence of their son or brother.

“We see their wives and their children. Because the breadwinner isn’t here, they go into prostitution, they end up being domestic help and getting beaten and raped in Saudi Arabia and other places. So it’s not just ‘oh, they’ve come in illegally, they have to go to prison’. There are so many other people and things that are affected because of it.”

Mr Svoboda has called on the Australian Government to reassess its policy of mandatory detention, saying the number of cases will grow so long as it remains in place.

“I don’t have the answers, it is a difficult problem, I acknowledge that. But the reality now is that imprisoning impoverished Indonesian fisherman or villagers is not going to stop the continuing influx of boats into the country.”

‘One in ten’

And more pressure is expected, as an Australian lawyer prepares to lodge the country’s first compensation claim on behalf of a young Indonesian fisherman detained in an Australian prison.

Since 2008, 314 boats carrying asylum seekers have been picked up in Australian waters.

Saul Holt, of the Australian state agency Victorian Legal Aid, told Australia Network’s Newsline: “We estimate that about one in 10 of the people that come in from Indonesia on these boats claim to be minors.

“And the task is to check those claims, and if they are children to make sure they get sent home.”

An Australian lawyer is now preparing to lodge the country’s first compensation claim on behalf of a boy, who was 17 when he was taken into custody as a crewman on an asylum-seeker craft and spent a year in an adult jail.

He is now back in his home village after his lawyers were able to eventually convince a court of his age.

It is believed more compensation claims are likely.

Mr Holt is overseeing dozens of people-smuggling cases before the courts in Victoria.

“Those children have been held in adult detention facilities, sometimes adult prisons, and they have spent months if not years in custody away from their parents in a foreign country,” he said.

“So there are no winners in any of this.”

Both the Australian Human Rights Commission and the Senate are inquiring into the treatment and detention of Indonesian minors in Australia.

Lawyers say on average individuals are spending seven months in custody before they are even charged, and then in some cases almost two years before it is acknowledged that they are children.

Peter O’Brien, a criminal lawyer, tells of “the fret that they had for not seeing their family, the despair in not being with their loved ones, the lack of support, the absence of English language.

“They were imprisoned with the toughest and harshest of prisoners in the state. The effects were profound.”

Mr O’Brien’s firm has so far represented 12 Indonesians on people-smuggling charges. All have since been acquitted. Eight were under-age, the youngest 13 when he was picked up by the Australian Navy.

The lawyer claims much money has been spent unnecessarily on defence incljuding legal aid when “the onus was on the Australian Federal Police and the prosecuting authorities and the government generally. ”

He is now preparing to lodge the first civil compensation claim against the Commonwealth on behalf of one of the minors his firm represented. The client was 17 at the time he was apprehended, was held in detention for six months before being charged and was then in an adult prison for about 12 months.

Mr O’Brien says he is speaking to other former clients about pursuing civil actions against police and government for unlawful detention.

“These children being detained in adult prisons represents a breach on so many different levels,” he said.

“As a civilised society we have an obligation to put right what has happened to these children and we have an obligation internationally to do that as well.”

Phil Lynch, executive director of the Melbourne-based Human Rights Law Centre, said: “It seems clear to me that where a minor has been held (in adult prison without fair hearing) . . . there are a significant number of major human rights breaches that have occurred.”

Until recently, police relied almost solely on an X-ray process established in the 1950s to determine whether someone was a child or an adult.

Lawyer Saul Holt says: “The prosecution have been relying very heavily on wrist X-rays which we have said for a long time are unreliable and shouldn’t be used. The Royal College of Radiologists have now said the same thing.”

The Australian Federal Police and the Minister for Justice declined Newsline requests for an interview.

Last month, Attorney-General Nicola Roxon announced a review into the convictions of 28 Indonesian people smugglers after the Indonesian government and the Australian Human Rights Commission raised concerns about their ages at the time of the offences.

The Immigration Minister, Chris Bowen, has defended Australia’s age assessment methods. He said in March: “It is difficult to prove someone’s age and it is obviously in the best interests of the individual to try and assert that they are under 18.

“And they may not be, and that can be a complex process.”

Defence lawyers say, regardless of that with children the principle of benefit of the doubt must apply.