The former attorney general Christian Porter rejected a plea for mercy from six Indonesians who said they were wrongly jailed as children using unreliable evidence, telling them they had no chance of success despite their lawyers pointing to a landmark ruling years earlier finding a miscarriage of justice in a similar case.
The six Indonesians, then aged between 13 and 17, were detained on a series of people smuggling boats in 2009 and were prosecuted by the commonwealth and jailed as adults in maximum security prisons in Western Australia.
The boys, all from remote fishing villages, were often duped into crewing the boats and repeatedly told Australian authorities they were juveniles after they were intercepted.
Federal police policy dictated that, as children, they should have been sent home. Instead the police relied on a flawed technique using wrist X-rays to prove their adulthood. Evidence based on that technique has since been found to be “entirely discredited” by the WA court of appeal in a separate case in 2017, a criticism that commonwealth prosecutors now accept.
Five of the six boys pleaded guilty after being charged as adults, meaning the evidence about their ages wasn’t tested in court. The boys were convicted and jailed in maximum security facilities, before being released and returned home to Indonesia in 2011.
In 2020, seeking to have their convictions overturned, the six men asked Porter to exercise his discretion under the royal prerogative of mercy and refer their cases to the WA court of appeal. Their lawyers, Ken Cush and Associates, told Porter the convictions were a “substantial miscarriage of justice”.
The letter described in detail every instance in which the six Indonesians insisted they were children to Australian authorities and informed Porter that wrist X-rays were now widely discredited as a means of age determination.
If he had granted the request, Porter would have made the children’s quest for justice much simpler, avoiding the need for them to convince a court to hear their cases more than 10 years out of time.
Porter refused all six applications. He said the request made by their lawyers was not a proper request for mercy, but even if it had been, he would have refused it.
“This is on the basis that a court of appeal could not reasonably conclude that a miscarriage of justice has occurred and that the circumstances of this case do not warrant the exercise of my discretion to refer the matter,” Porter wrote in early July 2020.
Porter’s assertion that a court could not “reasonably conclude” there had been a miscarriage of justice came despite the Indonesians’ lawyers pointing to a ruling of the WA court of appeal three years earlier, in the highly similar case of Ali Jasmin, which found that the wrist X-ray technique was “unreliable” and that a “miscarriage of justice” had occurred.
Porter’s previous connection
Porter’s letter, seen by the Guardian, did not mention that he had a previous link to the case from his time as WA attorney general and corrections minister.
Porter was not involved in the prosecutions, but as the minister in 2010 he received a complaint alleging that Indonesian children were being held in his state’s jails on people-smuggling charges.
That claim was made by the Indonesia Institute, a peak body for Australian-Indonesian relations and engagement. The institute did not identify any particular prisoners, but complained that “a number of inmates are below 18 years of age”.
“Several of our members have contacted us concerning a number of young Indonesian men being held at Hakea, Albany and Casuarina Prisons,” the institute’s president, Ross Taylor, wrote. “These men are, we are told, incarcerated as a result of convictions and charges concerning illegal fishing and ‘people smuggling’.”
Porter’s response, also seen by the Guardian, dismissed the concerns and placed heavy reliance on the wrist X-rays conducted by federal police.
“None of the prisoners currently in Departmental prisons have been verified as being under the age of 18,” he wrote, in a letter dated 6 December 2010.
“Information concerning the identities and ages of Indonesian prisoners are provided to the Department by the Australian Federal Police (AFP) during the transfer of prisoners into the custody of the Department.
“Bone density age verification tests are undertaken by the AFP prior to the transfer of the prisoner into Departmental custody where the age of the prisoner is in question. Following transfer into Departmental custody, where claims or allegations are made of a prisoner being under 18 years of age, the Department seeks confirmation from the AFP that a bone density test was conducted.”
According to a federal court decision in February, the commonwealth Director of Public Prosecutions privately advised Porter in 2019 that it had no objection to him allowing the six men the referral they sought to appeal against their convictions as miscarriages of justice.
The Guardian asked Porter whether, given his prior link to the issue and his former department’s own reliance on the wrist X-ray technique, he should have removed himself from any involvement in the children’s bid to have their appeals heard last year.
Porter was also asked why he concluded there was no prospect of the men succeeding despite the apparent advice of the CDPP that it did not oppose the referrals.
He did not respond to repeated requests for comment.
Different approaches of Hunt and Brandis
The retired New South Wales supreme court judge Anthony Whealy said Porter’s earlier involvement in the matter “complicated” his decision to refuse the Indonesians a referral to the WA court of appeal.
“Christian Porter’s decision in 2019 to refuse referral to the WA court of appeal is complicated by his earlier involvement as WA state attorney general and corrections minister in 2010,” he told the Guardian.
Whealy also criticised the “intransigence” of Porter in 2019, “especially in light of the DPP’s benevolent attitude”.
His approach to such cases diverged from the then acting attorney general, Greg Hunt, and the former attorney general George Brandis.
Hunt dealt with a similar request for mercy in the case of Rayan Abdul, a juvenile also prosecuted as an adult using the wrist X-ray evidence. In February 2019, more than a year before Porter rejected the mercy applications, Hunt agreed to refer Abdul’s case to the WA court of appeal.
“The expert witness evidence regarding wrist X-rays led by the Commonwealth of the Director of Public Prosecution during Mr Abdul’s age determination hearing in the Magistrates Court of Western Australia was later found by the courts to be not capable of being applied to determine whether a person is 18 years of age,” Hunt wrote. “I have concluded that the above fact raises an issue which would appropriately be considered by a court on referral.”
In 2015, Brandis received a similar request from lawyers for Ali Jasmin, jailed as an adult people smuggler when he was a 12-year-old boy on the basis of the wrist X-ray technique.
After Jasmin’s lawyers used the courts to force Brandis to make a decision, the attorney general accepted the request and referred the case to the WA court of appeal.
The court ultimately overturned Jasmin’s conviction, describing the wrist X-ray technique as “unreliable”. The crown also conceded the technique was inaccurate.
This created a “fairly clear precedent” for the other six Indonesians to ask for the same referral, the federal court has said.
Despite Porter’s refusal, the six men were eventually able to have their cases heard before the WA court of appeal, using another avenue.
They successfully persuaded the court to hear their appeals, despite them being more than 10 years late, and it overturned their convictions without any opposition from commonwealth prosecutors.
In a judgment published on Tuesday, the WA court of appeal said a “substantial miscarriage of justice” had occurred.
“The Crown has conceded that a miscarriage of justice was occasioned by each of the convictions; the judgments of conviction should be set aside; and judgments of acquittal should be entered,” the court said.
“The Crown accepts that there was no reliable evidence when each appellant was convicted and sentenced that he was of or over the age of 18 years.”
