AN Indonesian people smuggler, who was convicted and jailed as an adult even though advocates said he was just 13 years old at the time, has had his conviction quashed by WA’s highest court.
Ali Jasmin was convicted in 2010 and jailed for five years in an adult Western Australian prison, despite documents showing, and advocates insisting, he was a teenager at the time of his arrest.
Hailing from a fishing village on the island of Flores, Jasmin was recruited as a cook on a people smuggling boat which was stopped by Australian authorities while carrying 55 Afghans near Ashmore Reef in December 2009.
During an appeal earlier this year, the Commonwealth conceded evidence used to demonstrate Jasmin was an adult rather than a child – an x-ray of his wrist which prosecutors at the time said proved was 19 – was unreliable.
Today, the WA Court of Appeal overturned his conviction in what was considered a crucial test case for 14 other Indonesians released alongside Jasmin in 2012 by then attorney-general Nicola Roxon, due to doubts about their age.
In the judgment today, president of the Court of Appeal Justice Michael Buss said the medical evidence relied on at the court determined Jamsin’s age contained “a number of flaws”.
After hearing evidence from another radiologist Dr James Christie, the court also criticised the reasoning used by Dr Vincent Low, who represented the Crown in at least 70 similar cases.
“Dr Christie’s reports were received as evidence at the hearing of the referral,” Justice Buss said in his judgment.
“The Crown did not dispute the accuracy or reliability of the opinions expressed by Dr Christie in his reports.
“I accept the correctness of Dr Christie’s opinions. I prefer his opinions to those of Dr Low where there is any conflict or inconsistency between them.
“Low’s opinion that, at the time of the alleged offence, there was a 24% chance that the appellant was aged 18 years or younger may have been plausible at the trial, by virtue of its precision and the confidence with which it was expressed, but in truth it had no acceptable basis in fact or by reference to generally accepted scientific methodology. Dr Low’s opinion was unsatisfactory and unreliable.”
Jamsin pleaded guilty to the charge of people smuggling, despite an Indonesian birth certificate and family registration document putting his age as 13 at the time of his arrest – documents which were never tendered as part of Mr Jasmin’s defence.
Today’s appeal judgment also said observations made by then District Court judge Richard Keen about Jasmin’s age “carried little weight”.
“His Honour’s view as to the appellant’s age, based on his observations of the appellant in court, carried little weight,” the judgment said.
“The foundation for his Honour’s conclusion that the appellant was, at the material time, of the age of 18 years was Dr Low’s opinion supported by his Honour’s observations of the appellant in court.
“The unsatisfactory and unreliable nature of Dr Low’s evidence having been exposed, his Honour’s observations of the appellant in court are manifestly inadequate to support his Honour’s conclusion.”
Today’s ruling is likely to become a touchstone for the cases of many other Indonesian men who claim to have been jailed as adults in Australia which they were children.
It could also be significant in a $103 million class action lawsuit launched in Indonesia courts on behalf of 31 boys under the age of 18 who were jailed in Australian adult prisons and a further 84 who were held in immigration detention between 2008 and 2012.