The following breaches occurred with respect to general preliminary aspects:
Articles 54 and 56 (1) – The right to legal aid lasts throughout the whole proceedings whenever the defendant is interrogated, from the beginning of the preliminary examination by the police interrogator to the trial, and at every stage.
Observation
Schapelle Corby did not have legal counsel at the preliminary interrogation at Denpasar airport.
Article 177 (1) – The right to the assistance of an interpreter free of charge if one cannot understand or speak the language used in court. The interpreter, to be appointed by the judge/chairman of the session, must promise under oath or pledge to truly interpret all that has to be interpreted.
Article 53 – Extends the right outlined in Article 177 (1) to the preliminary examination.
Observation
Schapelle Corby did not have an interpreter at the preliminary interrogation. She was interrogated by airline staff whose English-language proficiency has never been established and she did not understand Indonesian. For example, when Customs Officer Winata was interviewed by Liz Hayes on '60 Minutes' in November 2004, her questions to Winata were translated into Indonesian, and Winata’s responses, in Indonesian, were translated by an interpreter into English. Would this have been necessary if Winata had had good English speaking skills and good English listening skills?
Article 51 – The suspect or defendant has the right to be clearly informed in a language he understands about what has been presumed about him at the start of an examination or the charges brought against him: a formulation which already implies the right to the assistance of an interpreter. (See Article 53, above)
Articles 52 and 153 (2) - When the suspect is interrogated he must be in the condition to speak freely without pressure being brought to bear upon him by anyone and in any form.
Observation
Best calculations suggest that Schapelle Corby was interrogated for nine hours – after 12 hours of travel. The drive to Brisbane Airport began at 4.30am, so Schapelle Corby would have awakened around 3.30 am to prepare for the drive to the airport. How much sleep did she have that night? How long had she been awake by the time the preliminary interrogation started? She must have been suffering from travel fatigue, a recognized medical condition, and would have been in no condition to be interrogated, especially without the assistance of a lawyer and interpreter.
Articles 69 and 70 (1) – If the suspect has been arrested or detained, the legal adviser in turn has the right to be present and to speak with his client whenever he is being questioned, from the moment of arrest or detention and at all stages of the proceedings.
Observation
Schapelle Corby’s access to a lawyer appears to have been hampered or denied for many hours. If “prima facie” evidence is all that the Indonesian justice system needs to convict a suspect, why did the airport authorities interrogate Schapelle Corby for so long before allowing her to contact a lawyer?
Article 66 - The suspect or defendant shall not be burdened with the duty of providing evidence.
Observation
The following events resulted in Schapelle Corby being forced to seek evidence of any kind, in a 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 presented to the court 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.
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.
Observation
Access to the marijuana, for example, for forensic testing, was refused throughout.
General breaches of the International Covenant on Civil and Political Rights (ICCPR):
Article 14 (3) (a) - To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him.
Observation
Self evident breach.
contaminate untested primary evidence by repeatedly handling it without gloves.
.