Bali 9: The Untold Story (20 page)

Once O’Rourke had his argument ready for the Federal Government, he knew that, in the whole Bali Nine debate, four people mattered more than anyone else. It was those people who could help decide the eventual fate of nine young Australians locked in Indonesian jail cells: then Prime Minister, John Howard, then Foreign Minister Alexander Downer, then Justice Minister Chris Ellison and then Attorney General Phillip Ruddock. Four federal government ministers with enormous sway. And without their support, O’Rourke knew, it would be virtually impossible to bring the Bali Nine home.

M
ike Phelan, the Australian Federal Police’s border and international network national manager, is unapologetic about the strife caused by his officers in tipping off their Indonesian counterparts to what was being planned by members of the Bali Nine.

‘If these same set of circumstances would happen tomorrow, we would make exactly the same decision,’ he says.

Phelan is not trying to defend the AFP’s decision, one that has not only divided dinner parties but also prompted four of the Bali Nine’s families to take the matter to court. He just sees that decision as part of the job. The AFP’s role was to fight drugs, and to take the fight as far up the ladder as it could, and it wasn’t able to do that without the vital information swaps
that occur between Australia and countries across the globe.

The AFP has sixty-five officers in thirty-one cities in twenty-six countries. Fighting drug smuggling, and people smuggling and terrorism and all sorts of other transnational crime, is big business, and without intercountry cooperation, few networks could be closed down.

‘We are putting a lot of our efforts into forward engagement and stopping the crime at its source before it reaches Australia,’ Phelan says.

That means dealing with all sorts of different cultures, intelligence levels and criminal justice systems. And many of the other countries which act as drug transit hubs on the way to Australia spell out the death penalty for those found flouting the law.

The AFP’s work in dealing with other countries to combat criminals arriving at our shoreline has rarely been seen as controversial—not, at least, until it was publicly revealed that the AFP had dobbed in the Bali Nine to their Indonesian counterparts. Many saw the move as distinctly un-Australian, as a return favour for a close political relationship, and as a betrayal of nine young Australians who would be forced to face the possibility of a death sentence. And proponents of that view—from high-ranking lawyers and civil libertarians to media commentators and the families of those involved—use the information the AFP provided to the Indonesian National Police (INP) to support their argument.

That information shows that the AFP wasn’t just offering a tip-off. The letter penned and sent on 8 April 2005 by Paul Hunniford, the AFP’s senior liaison officer in Bali, was bloated with detail. Translated into Indonesian, and sent to the INP in Denpasar, it revealed that an attempt to smuggle heroin from Bali to Australia would soon be made, involving eight people ‘carrying body packs strapped to their legs and back’.

That was just the start. The letter went on to explain that the group had planned to smuggle the drugs months earlier but had to abort the attempt because ‘there was not enough money to buy the stuff’. It even contained such details as the couriers not being allowed to smoke for two weeks prior to travel, because they would not be allowed to smoke on the return flight, and might begin to look nervous. It said that expenses had been handed out to the group, and they were told to change the money into the local currency, and buy oversized clothes and thongs.

‘The clothes and thongs were not to have any metal on them to avoid the metal detectors at the airports,’ Hunniford wrote.

The couriers had been given pre-paid mobile phones and were told to carry wooden carvings needing quarantine declaration through the airport, so they could bypass Customs back in Australia.

The letter listed the names of eight of the Bali Nine, and included Andrew Chan’s travel plans. It was fat with intelligence and the AFP were not backwards in asking for help. They wanted the INP to gather evidence
or intelligence to track down the organisers of the operation in Australia and the source of the narcotics in Indonesia; they wanted photographs of meetings, telephone records and any surveillance the INP could provide.

Hunniford sent off the letter more than a week before the Bali Nine were arrested with the heroin taped to their bodies. But his correspondence didn’t end there—on 12 April he sent a second letter to the INP providing more information, including some of their planned return dates.

So what did the AFP hope to achieve by handing over details of the Bali Nine to their Indonesian counterparts? And should they now wear the blame for the death sentences handed out?

Mike Phelan’s tone doesn’t change: ‘What people need to realise is that, had the couriers been allowed to run…we may have picked them up at the airport and that may have been the end of it. We wouldn’t have known the length and breadth of the syndicate, we wouldn’t have been able to track down the upstream…’

His point is backed up by the fact that the AFP had never heard of Myuran Sukumaran, a bigwig in the Australian network. Sukumaran remained under the radar for weeks and weeks as the AFP progressed its investigation, and his name was the only one missing from both of Hunniford’s letters. Officers had homed in on Andrew Chan, whom they believed to be the organiser, and on the two groups of mules from Sydney
and Brisbane. Sukumaran remained anonymous until the INP was able to tie him in to meetings with the other members.

Phelan says that the sting operation proved successful because of the role played by Indonesian police, not only in pinpointing Sukumaran, but also in providing the crucial evidence that linked all nine members. It is a valid point. It was the Indonesian police, through surveillance, who were able to link the two groups of mules, provide evidence of meetings and bring the whole operation to a chilling end, with the arrests of the Bali Nine on 17 April 2005. If the four mules had been allowed to travel to Australia, who is to say that they would not have slipped through the net, or gotten rid of their haul, or tipped off the others back in a Bali hotel room preparing for a night out on the town?

However, Phelan is still prepared for those questions being asked by parents of the Bali Nine, academics, civil libertarians and ordinary folk sceptical of the role played by the AFP. Why couldn’t the AFP have asked the Indonesian police to let the four mules board the plane, so that they could be arrested in Australia, without the spectre of the death penalty?

‘For a start,’ Phelan says, ‘we wouldn’t ask that of the Indonesians. We’d never tell them what to do in their own country.’

He offers the reverse scenario, where the Indonesian police ask us to allow four couriers to board a flight from Sydney to Jakarta, knowing full well that their bodies were packed with kilograms of heroin.

‘Under no circumstances would I allow that to occur,’ Phelan says. Many, many Australians would agree with that course of action.

The nature of the transnational crime-fighting effort also demands cooperation between countries. ‘It’s very much a two-way street,’ Phelan says. And not just with Indonesia. While that country has become a pathway for drugs into Australia, other transit hubs continue to play a big role: Bangkok, Singapore, Hong Kong, Ho Chi Minh City. They are all transit points, and all targets of major efforts to curb the spread of drugs across the globe.

‘We operate exactly the same way no matter which country it is,’ says Phelan. ‘Had this occurred in Thailand, Cambodia, Vietnam, we’d potentially do exactly the same thing given the same set of circumstances.’ AFP crime fighters do not have the ‘luxury of being able to discern’ between countries, he says. ‘We respect the rights and responsibilities of other countries and their laws, and we will operate within that. We do not have the ability, nor the desire, to pick and choose which countries we will deal with, depending on the laws of those countries and how they will deal with offenders for offences that occurred in their own country.’

Another valid point. Just imagine Australia only dealing with those countries that forbid capital punishment—it would mean no assistance for our crime bodies from several countries now known to act as transit centres for drugs destined for Australia.

Supporters of the AFP also point to the statistics which show that in the past decade there has been a fourfold increase in the amount of heroin pulled up on its way to Australia, and this has caused a big drop in the number of people dying as a result of using heroin.

Regardless, the accusations thrown at the AFP over its role in tipping off the INP have certainly hurt its national image in the hearts and minds of many, including senior academics, lawyers and those families at the centre of the Bali Nine drama.

Phelan says that the guidelines adopted by the AFP in making decisions like that made on 8 April 2005 are simple, a point disputed by those who believe that they still need an overhaul. He says that the AFP is entitled to provide intelligence and information right up to the point a suspect is charged—and that is simply what they did in this case.

‘The level of involvement and information supplied by the AFP in relation to the Bali Nine…is minimal compared to what the Indonesians have developed themselves in Indonesia,’ he says. And Australia’s close relationship with Indonesia played absolutely no role in the information exchange. ‘The level of cooperation that we get from Indonesian authorities and transnational crime investigations has, no doubt, improved significantly over the last number of years, but that certainly has not driven our decision as to whether or not we would share the intelligence with the Indonesian authorities.’

Phelan’s message to the parents of the Bali Nine—including the four who ended up taking their case against the AFP to the Federal Court—is simple: ‘We have got a responsibility to the wider Australian community to protect Australia from drugs and we will do whatever is necessary, within the law and within the guidelines and the policies, to be able to protect those interests. Being involved in drugs is extremely dangerous. It’s extremely dangerous for couriers involved. It has a disastrous effect on Australian communities. And that’s what the AFP is mandated to do, is to protect the country from drugs, and we will continue to do that and we’ll continue to take the fight offshore.’

The AFP, says Phelan, had no influence over whether the Bali Nine would be arrested on their way out of Bali. Having provided the information to Indonesian authorities, it was then up to the INP to decide how to handle the matter, just as it would be up to Australian authorities if any crime was committed here. With the four mules boarding a plane in Bali, it had to be the INP, not the AFP, who were responsible.

‘What’s been lost a little bit in this is that there’s been a perception that we actually asked the Indonesians to go and arrest these people because they’re going to bring in heroin,’ Phelan says. ‘What we actually did was request surveillance of the Indonesian authorities on known targets to establish the network.’

In other words, the AFP wanted the INP to help them find out where the heroin was being sourced and
how the disparate group of Bali visitors fitted together. But in handing over the information they did, they were also not ignorant to the possible consequences: that young Australians would face charges in Bali, and potentially face a death penalty.

The AFP argument doesn’t wash with everyone. Some academics have accused the AFP of delivering to slaughter the proverbial young Australian lambs. Civil libertarians, too, have expressed disgust at the AFP playing ball with those countries that boast capital punishment amongst their armour. Kevin O’Rourke has spent sleepless nights pondering the role played by the AFP, which he describes as ‘appalling’.

‘I’m concerned about decisions that are being made by Australian government officials who are representing all Australians,’ O’Rourke says, ‘where those decisions and judgments have the effect of leaving Australian citizens exposed to the death penalty.’

He’s not alone. Take the families of those involved, like Lee and Christine Rush, who tried to have their son warned before leaving. As far as they’re concerned, and for Renae Lawrence’s father, Bob, and hundreds of others, the AFP had no right to hand their children over to Indonesian authorities. Renae Lawrence’s 85-year-old grandfather fought for Australia in World War II and he cannot countenance that the AFP would do this to his only granddaughter. ‘He just doesn’t understand,’ Bob says now, ‘why the AFP did not allow them back into the country’ before arresting them.

The Federal Court has another view, with Justice Paul Finn ruling that the AFP had acted lawfully in handing over information to the INP. His ruling was in response to an application by all four of the Bali mules to access AFP documents relating to the arrests. The four Australians—Scott Rush, Martin Stephens, Michael Czugaj and Renae Lawrence—wanted access to documents and records relating to their arrests. But it wasn’t to be. They lost that argument in a decision announced as the Nine were beginning to find out their fate. But that was in the Federal Court of Australia—the
real
decisions were being made thousands of miles away, in a courtroom in Bali.

M
ichael William Czugaj walked—or, more precisely, shuffled—the few brief steps to his mother, put his arms around her and whispered nervously into her ear. ‘It’s okay, Mum, I love you.’ As Vicki Czugaj instinctively gathered the sixth of her eight children into her arms and the flashbulbs clicked within centimetres of the pair’s private embrace, she could feel the tears welling up within. It was the first time Vicki had ever set foot inside a courtroom and she was a mess. She had been sitting there quietly for the past hour pondering and panicking about this very moment. Now it was upon her and she did the thing that came naturally—she hugged her baby. She felt relief flood through her as she realised that he at least looked okay.

‘This is my child and God only knows what the outcome is going to be,’ she thought as she extracted herself from the embrace she wanted to never end. ‘I just want to take my baby home.’

On that day his mother’s reference was apt: Czugaj looked, for all the world, like a boy in a man’s clothes. As if he had woken up that day and, instead of going out to muck about with his teenage mates, decided to dress up in the garb of a man. His cream-coloured shirt seemed to envelop his hunched shoulders and skinny frame—he seemed lost inside it. Pimples—those telltale signs of adolescence—shone like beacons on his pale and drawn face, the paleness of his skin making them even more noticeable. But the pimples could not disguise the fact that on the morning of 11 October 2005 he was well and truly in a man’s predicament. He had been for five months already, but today the consequences of his actions were very real.

It was day one of the Denpasar District Court trial which would decide Michael Czugaj’s fate—of the nine, his was the first to start. Waiting for him inside the courtroom were the two men and one woman who would decide if he lived or died, if he was guilty or not guilty of attempting to export heroin as part of what prosecutors would say was an organised, secretive, militant and international drug network.

At that moment, though, with his mother’s protective arms wrapped around him, Czugaj looked anything but a drug boss or even a drug lackey. He looked more like a scared, pimply, pasty-faced kid from
next door who had been escorted, in handcuffs, to the courthouse by mistake. In fact, he had always looked like that—from the day of his arrest, when he had cried, to this day. He was not the baby of the Nine—Matthew Norman was the youngest—but he had always appeared so much younger than his years. He would not have looked out of place in a school uniform.

At the time of his arrest Czugaj was a mere nineteen years of age; by the time he appeared in court he was twenty: too young to be in such a dire situation but old enough to have known better. He would soon give the judges his own reasons for doing what he had done, attempting to abrogate and distance himself from some of the responsibility for his own actions. They would be the same reasons articulated by three more of the Nine as their trials progressed, delivered almost by rote. Whether the judges and prosecutors would believe them or think of their stories as fantastical tales dreamt up to save their own miserable skins remained to be seen. It was only the beginning of the trials of their lives.

Czugaj arrived at court at 10 a.m. in a prison truck shared with thieves, drug dealers, pimps and the other Indonesian prisoners also due to face the judges that day. He was barrelled through a throng of waiting media, wearing sunglasses and a baseball cap pulled down low over his eyes, the first of the Bali Nine to experience the media scrum at court. Not far behind him was Myuran Sukumaran whose trial was
scheduled to start the same day. They were so different, the comparison was stark. Czugaj was shrinking, trying to hide his face, while Sukumaran was anything but, striding purposefully through, his freshly shaven bald head held high. He was no shrinking violet—not today, and not once since this process began.

It was the first day of the long-awaited trials and prosecutors had chosen to begin them with one of the airport mules and, in another court, one of the ringleaders. Prosecutors had decided to bring the same primary charge against all nine regardless of their roles: exporting narcotics as part of an organisation. It was this charge—carrying the death penalty as its maximum sentence—which gave all nine good reason to fear for their lives. Their fate was now up to the courts, and to the Nine themselves, depending on the strategies they chose to use during the trials.

The stage for this act of the drama was a rather nondescript court complex in the centre of Denpasar—unremarkable from the street and even more average from the inside. It was the same court where, in May 2005, Schapelle Corby had been convicted and so dramatically sentenced to twenty years in jail. Those expecting a pristine and immaculately manicured and painted court complex, akin to those of Australian capital cities, would have been sorely disappointed. And, for that matter, those expecting courthouse rules like those observed in Australia would also get a shock.

Here no one bothers too much with strict court rules, and that great sin in an Australian court—to
accidentally leave your mobile phone turned on and have it ring during a court session—barely causes a ripple. In fact, phones ring and people answer them, carrying on full conversations in the court—even the officials. Admonishments are rare.

There are five courtrooms with no air conditioning, just a couple of sometimes rickety ceiling fans, so the windows—those which aren’t already broken—are always left open in the hope of catching a rare passing breeze. Through these windows hang the media cameras and curious onlookers from all walks of life.
Bules
—Westerners—on trial are always an attraction for the locals, who break the boredom of the wait for their own cases by leaning lazily through to peer at the latest example of a white-skinned defendant.

When the defendants were Corby or Michelle Leslie, the locals loved it and packed the place to the rafters. The local press always referred to the women in their stories as
cantik
(beautiful), and locals wanted to check them out to see if it was true. Then you would hear them, gossiping amongst themselves, that whoever it was really was as beautiful as her picture; some said they were
more
beautiful than the photos or the TV images.

There was, however, less public fascination for Perth yachtsman Christopher Packer, accused of weapons charges relating to guns he kept on his boat and which he hadn’t reported to authorities. It was the
cantik
women the locals cared about.

Published court lists? Forget it. Strict adherence to court starting times? Again, forget it. Court starts when it starts and the only people who ever raise a stir about such a relaxed system are the Western media, whose deadlines are often missed because the prison truck didn’t arrive on time when bringing the day’s court attendees from Kerobokan Jail. Locals call it ‘rubber time’.

Official court transcripts or court stenographers? Once more, forget it. The judges take notes for themselves and a court official who sits off to one side also takes handwritten notes of proceedings. This, combined with memory, is what is used to consider the evidence.

Indonesian courts are based on the Dutch system of law, inherited from the days of Dutch colonialism. Unlike the system in countries such as Australia, Indonesian law follows European legal systems and is inquisitorial rather than adversarial. As such there are no juries; rather, a panel of three to five judges decide on guilt or innocence. Trials are run more like inquiries and investigations, whereby the judges lead the questioning of witnesses and suspects. All in all, life at Denpasar District Court is pretty relaxed and people rarely complain. But that’s also life in Bali—laid-back and as stress-free as possible.

The Denpasar District Court complex is a community. The families who run the
warungs
, or small cafés, at the back of the court complex live behind their modest shops in modest homes. They make their meagre living from the business of the court, selling breakfast,
lunch, coffees and snacks to those whose business is inside the court. A great deal of court business is done in the
warungs
over bowls of
mie goreng
, cups of thick black coffee or tea laden with sugar, and
pisang goreng
(fried banana).

The women who run the
warungs
, like Ibu Slamet, spend their day ferrying trays of food and drink to those working in the court offices. Her husband works for the court, cleaning the buildings and keeping things as neat and tidy as possible, and they have lived in the tiny room at the back of the café for ten years. For the past year Ibu Slamet has run the
warung
from the front of their home, selling freshly squeezed fruit juices like the locally popular avocado juice with chocolate, noodles, rice and assorted meats and vegetables. But whatever juicy titbits Ibu Slamet hears during her days serving judges, lawyers and prosecutors, she keeps to herself. Discretion is paramount in a business like hers. Ask her about what deals she has overheard being sorted out in her
warung
and she just laughs—it’s a secret.

A similar response is given by her neighbour and fellow
warung
proprietor, Ibu Abas, who, together with her husband, has been there even longer. The couple, with their toddler daughter Nanda, work, live and sleep in the cramped shop—nothing is sacred as they try to eke out a living and a future. Their bed is right next to the serving area and the fridge where customers wander in and help themselves to cold drinks. People say Ibu Abas’s
pisang goreng
is among the best around. Customers help themselves to that too
and somehow, in between juggling the serving of customers, the desk deliveries and the cooking, she manages to keep a tally of just how many pieces each person had that day or how many coffees.

The Bali Nine trials and, before them, the trial of Schapelle Corby, saw a swag of foreign journalists and their staff land in town, along with family members of the accused, which gave the women’s businesses a big boost. The chief judge who heard Corby’s case, Linton Sirait, actually lived in one of the small flats behind the court complex, alongside Ibu Slamet’s
warung
. It was here, with her cups of sweet tea and coffee and bowls of
mie goreng
, that he spent many hours pondering the judgment. Judge Sirait has since moved to Medan and his flat is vacant.

However, the cockfighting roosters which used to keep him company are still there. Jago, the shiny black one, and Barak, the multicoloured one with shiny green tail feathers, belong to Edy, a relative of Ibu Slamet. They live in wicker baskets right next to the fifth courtroom, the one in which Czugaj’s trial first started. For those who think roosters only crow at dawn—think again. Jago and Barak, like their kin in
kampung
(villages) all over Bali, crow night and day. Their cock-a-doodle-dooing is a backdrop to the business inside the fifth courtroom.

This pair are Edy’s pets—prized cockfighters he takes to cockfights around the island. The attraction to cockfighting is not so much the macabre spectacle of watching two proud roosters, sharp spurs attached to
their feet, go hammer and tongs at each other to the death, but the money that is won and lost during the gambling that is a central feature of cockfights. It seems odd in the extreme that Jago and Barak are living on the grounds of a court complex in whose courtrooms people appear, charged with the crime of illegal gambling at cockfights. The fight between two cocks, known as
Tajen
, originated because it forms an important part of the Balinese Hindu religious ceremony. It still does, but gambling at organised cockfights is also part of life in Bali, illegal though it is.

Each afternoon, after the prisoners and judges have gone, Edy gets the pair out of their wicker baskets for training, letting them have a mock spar each day to keep them practised for the real game of life and death.

This day, as Czugaj appeared in court, Jago and Barak were crowing outside. It was now life and death for Czugaj too. Czugaj’s strategy was clear from early on, when his locally based lawyer, Fransiskus Passar, decided to waive the right to deliver a defence rebuttal to the prosecution’s indictment or opening address. He wanted to go straight to the witnesses. Outside court, Frans—as he is known locally—said his client was an ‘innocent victim’. He didn’t want to say too much more at that stage but he didn’t need to: they were going to claim that Czugaj was not a key player or ringleader in this whole sorry saga but, rather, a naive teenager who had got roped into it, and then, when he found himself in too deep, couldn’t make his way out—too scared for himself and the safety of his family to do anything about it.

Would the judges believe it? And would they believe that Czugaj really was threatened with death, or that he honestly didn’t know what was inside the packages strapped to his body? Or, for that matter, that he truly thought he was on a free holiday to Bali and nothing more sinister? That he honestly never suspected that a free vacation, with no strings attached, was just too good to be true? Time would tell.

Czugaj’s trial was almost a template for how each of the Bali Nine trials would run—there were police and Customs witnesses involved in arresting the Nine on 17 April, hotel staff who recognised them from their stays at the various places and the taxi drivers who ferried them around Bali. The aim was to prove where they had stayed, what they did, where they went and with whom—all seemingly innocuous stuff. Most interesting was the evidence of police about the letter that had been sent on 8 April from the Australian Federal Police to the Bali police, along with testimony from Nyoman Gatra, the officer in charge of the surveillance operation. What people really wanted to hear, though, was the Nine themselves, telling their own stories.

Under Indonesian law, in trials where there are joint offenders, prosecutors can call the co-accused to give evidence against each other. So in each trial the other eight were called as witnesses against whoever was actually on trial.