Six Indonesian children wrongly jailed in Australia as adult people smugglers have cleared their names in a case exposing a grave and “substantial miscarriage of justice”.
The six Indonesians, aged between 13 and 17 at the time of their arrest, were intercepted on fishing boats in Australian waters in 2009, during the highly charged political climate around border protection.
The children had been lured on to the boats from their impoverished villages with vague offers of highly paid work, often unaware of their destination or that they were to transport asylum seekers.
Internal records seen by the Guardian show the children repeatedly told immigration officials and police they were children, which ordinarily would have meant they were sent home under Australian Federal Police policy.
Instead, police relied on the use of X-rays to interpret the maturity of their wrists, comparing them to a reference tool built using the bones of healthy, middle-class Americans. The X-rays were used to conclude that the boys were likely to be adults, and police charged them as such. All but one of the boys pleaded guilty.
That technique has since been completely discredited.
On Tuesday, the WA court of appeal overturned the convictions of Rudi Usman, Hamzah Gogo, Muhammad Maleng, Maikel Husa, Usman Ari and Vandi, who were represented by Ken Cush & Associates. The court found “a substantial miscarriage of justice has occurred”.
The court found that, without the wrist X-ray evidence, all six boys would “not have been charged as an adult” and the WA district court would have had no jurisdiction to deal with their cases.
“The cogency of the remaining available evidence, as to the date of birth of each appellant, cannot support a finding that, at the material time, any of the appellants was of or over the age of 18 years,” it found.
The court said commonwealth prosecutors had now conceded their earlier reliance on the wrist X-ray evidence “gives rise to a serious doubt about the integrity of each plea of guilty and about the integrity of each decision not to put in issue the appellant’s age”.
“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.”
Documents attached to the boys’ case reveal both police and senior government figures knew before the boys were jailed that there were doubts about its accuracy.
Documents seen by the Guardian show an investigating officer in some of the cases had been involved in a remarkably similar prosecution eight years earlier, during which the court heard that using wrist X-ray evidence to determine age was open to error and “not an exact science”, and that the key reference tool on which it depended should be used with “judicious scepticism”.
Despite those concerns, police altered the dates of birth provided to them by the six children – changing the year of birth, but keeping the month and date – to turn them into adults and make their ages fit the X-ray reports.
The new dates, which the boys’ lawyers told the court were “fictitious”, were used in prosecution notices, indictments and other sworn legal documents to prosecute the children as adults.
An internal immigration department briefing from June 2010 shows the government was directly warned about the reliability of the technique. That briefing occurred well before five of the six children were convicted and sentenced, but after the X-ray reports were produced.
The briefing warned the government that wrist X-rays were prone to error and pointed to UK guidelines warning against using them to determine age, which said: “The issue of whether chronological age can be determined from the estimate of bone age has been discussed at great length in the literature. The answer is that it cannot.”
After about three years and multiple complaints about the detention of children in adult jails, they were released on licence and sent home.
Many were not told they were being released due to doubts about the evidence. They remained convicted people smugglers who were still technically serving their sentence.
In 2012, the Australian Human Rights Commission investigated the detention of children on people-smuggling charges and delivered a scathing report, titled An Age of Uncertainty, which said Australia’s treatment of such children was “disturbing” and that “Australian authorities apparently gave little weight to the rights of this cohort of young Indonesians”.
The then human rights commissioner Catherine Branson told the Guardian she thought at the time the government agencies responsible for investigating and prosecuting smuggling felt they were under political pressure.
“I concluded that these agencies wanted to be seen to be bringing prosecutions and securing significant penalties,’’ she said. “They wanted to be seen to be taking people-smuggling seriously.
“They wanted to find some way to determine age; there was a high level of anxiety to find a biological marker that could tell you precisely how old a person was, but, in the end, their reliance on the wrist X-rays proved to be ill-founded.”
At the time, Branson, now chancellor of the University of Adelaide, considered it likely that many of the young people crewing people-smuggling boats were “in a sense, victims themselves”.
“They were mainly from remote Indonesian islands, from impoverished backgrounds,” she said. “If someone approached these young people, offering what was to them an enormous amount of money, and all they have to do is come sailing for a few days, of course they would accept.
“Many of them appeared to have had no idea what they were part of; they were already out at sea when they learned that passengers were on board, they couldn’t get back, there was then nothing they could do. The ringleaders in all of this were, by the time the vessels reached Australian waters, far away.
“It seemed pretty clear to me many of these young people were victims too.”
Andreas Schloenhardt, a professor of criminal law at the University of Queensland, has written extensively on the criminalisation of people smuggling by Australia and the mandatory minimum penalties that severely limited sentencing discretion. He argues that they forced judges to impose harsh sentences they considered to be disproportionate to the culpability of offenders, a fact acknowledged by some judges themselves.
The prosecution of alleged people smugglers was influenced by a “great deal of misleading political and media rhetoric … myths and stereotypes about people smuggling and people smugglers”, he wrote in the Sydney Law Review in 2016.
Schloenhardt told the Guardian a confluence of pressures was brought to bear on different government agencies as the number of boats grew: from seven arrivals in 2008 to 300 by 2013.
The AFP had been given laws that made “facilitating the entry of five or more people” into Australia “a very simple, easy-to-prove offence” to be laid against captains and crew of asylum boats. The commonwealth director of public prosecutions was “completely overwhelmed by the caseload” generated by the growing number of boats.
“But the most significant flaw is in the design of this legislation,’’ Schloenhardt said. “Australian law has been consistently criticised because it does not reflect international law. To this day, our thresholds for prosecution are much lower, and we capture people that under international law do not commit any offence.
“This is a political decision, of course. The people who wrote these laws in the 1990s, who rewrote them in 2010, they knew what they were doing.”
Schloenhardt said mandatory minimum sentences were introduced for people-smuggling offences despite widespread criticism.
Tony Kevin, a former Australian ambassador who has spent decades researching the issue of asylum seeker boats, said Australian policies had made asylum voyages more dangerous.
“Australian policy, by criminalising the Indonesian ferrymen and the sailors who worked for them, has had all sorts of perversely negative consequences. Those policies encouraged people smugglers to seek out old, dilapidated boats of little value – because they knew the boats would be burned – and that made voyages more lethal.”
Kevin said severe penalties for adults, but not for children, meant there was an incentive to recruit minors to be crew.
“These poor young boys – they didn’t know what was happening, they didn’t carry documents – and great mistakes were made I’m sure, which left them rotting in Australian prisons.
“But these children were expendable to the nasty people organising these trips, whom we rarely, if ever, saw before Australian courts.”
The AFP said in a statement that it no longer used wrist X-rays for age determination. It said it could not comment on matters before the courts.
