The case revealed a grave error in the administration of justice

Indonesian children imprisoned in Australia as adults

• Children are being drawn to go to Australia.

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• The use of X-rays to determine the age proved to be wrong.

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Six Indonesian children were mistakenly imprisoned in Australia, while smugglers were acquitted in a case that exposed a "grave miscarriage of justice" in Australia.

The six Indonesians, aged 13 to 17, were intercepted on fishing boats in Australian waters in 2009, during the highly charged political climate around border protection.

lure

Smugglers have lured children into boats from their poor villages with vague offers to work for a high wage somewhere, often unaware of their destination or they will be considered asylum seekers.

Internal records seen by the Guardian show the children have repeatedly told Australian immigration officials and police that they are children, which usually means they are sent home under Australian Federal Police policy.

Instead, the police relied on using x-rays to find out their age, and x-rays were used to conclude that the boys were likely adults, and as such the police charged them.

All but one of the boys pleaded guilty.

But later this technology was proven to be completely unreliable.

Last week, the Western Australian Court of Appeal overturned the convictions of Rudi Usman, Hamza Jojo, Muhammed Maling, Michael Hosa, Usman Ari and Vande, who were represented by the law firm Ken Koch & Associates.

The court found that "a grave error in the administration of justice had occurred".

The court ruled that regardless of the use of wrist x-rays to determine their age, the six boys "should not be charged as adults" and decided that the District Court of Western Australia had no jurisdiction to hear their cases.

It found that "the remaining available evidence argument, with respect to each Appellant's date of birth, cannot support the finding that any of the Appellants, at the time of the application, was 18 years of age or older."

The court said that Commonwealth prosecutors have now admitted that their earlier reliance on wrist x-ray evidence "casts express doubt as to the fairness of every admission of guilt and of every decision not to age the appellant".

The court acknowledges that there was no credible evidence when each appellant was convicted and sentenced to be 18 years of age or older.

doubts

The documents attached to the boys' case reveal that both the police and senior government figures knew before the boys were imprisoned that there were doubts about the accuracy of the accusation.

Documents seen by the Guardian show that an investigative officer in some cases was implicated in a notably similar trial eight years ago, during which the court heard that the use of wrist x-ray evidence to determine age was error-prone and "not very accurate".

Despite these concerns, the police changed the birth dates given to them by the six children - and changed the year of birth, while retaining the month and date - to convert them to adults and match their ages to X-ray reports.

The new dates, which the boys' lawyers told the court were "fictitious", were used in prosecution memos, indictments and other legal documents supporting the prosecution of the children as adults.

A June 2010 Immigration Department briefing reveals that the government has been directly warned about the unreliability of this technology.

This briefing took place long before five of the six children were convicted and sentenced, after X-ray reports were extracted.

The brief warned the government that wrist x-rays were subject to error, and pointed to UK guidelines that cautioned against their use for age determination, which said: "The question of whether chronological age can be determined from bone age estimation has been discussed, and the answer is that it cannot."

After nearly three years and multiple complaints about children being held in adult prisons, they were released and sent home.

scathing report

In 2012, the Australian Human Rights Commission investigated the detention of children and submitted a scathing report, acknowledging that Australia's treatment of such children was "disturbing" and that "the Australian authorities did not appear to place much weight on the rights of this group of young Indonesians".

Then-Commissioner for Human Rights Catherine Branson told the Guardian that she believed at the time that government agencies responsible for investigating and prosecuting smuggling felt they were under political pressure.

"I've concluded that these agencies want to be seen by the Australian people as being prosecuted and with significant penalties," she said. "They wanted to be seen as taking people smuggling seriously."

"They wanted to find some way to determine the age," she says.

There was a high level of concern to find a biomarker that could accurately tell you a person's age, but in the end, their reliance on wrist X-rays proved unfounded.”

At the time, Branson, who is now the president of the University of Adelaide, considered it likely that many of the young men working in people-smuggling boats were "somewhat victims".

Those poor little boys say...

Punishments disproportionate to the offense

“They are basically from remote Indonesian islands, from poor backgrounds, and if someone approaches them and offers them a huge amount of money, all they have to do is come sail for a few days, of course they will accept,” said former ambassador Tony Kevin.

University of Queensland professor of criminal law, Andreas Schlewenhardt, wrote that the legislature has forced judges to impose harsh penalties disproportionate to the guilt of perpetrators, a fact that some judges themselves have acknowledged.

The prosecution of alleged people smugglers has been influenced by “a great deal of political and media misinformation, myths and stereotypes about people smuggling and people smugglers,” as he wrote in the Sydney Law Review in 2016.

"But the most significant flaw in the design of this legislation is that Australian law is under constant criticism because it It does not reflect international law, and to this day we arrest people who do not commit any crime under international law.”

He concludes, "The people who wrote these laws in the 1990s, and who rewrote them in 2010, knew what they were doing."

• In 2012 the Australian Human Rights Commission investigated the detention of children and submitted a scathing report, acknowledging that Australia's treatment of such children was "disturbing" and that the Australian authorities did not seem to place much weight on the rights of this group of young Indonesians.

• The documents attached to the boys' case reveal that both the police and senior government figures knew before the boys were imprisoned that there were doubts about the accuracy of the accusation.

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