While Schapelle Corby and the Bali nine wait out their future in Denpasar cells, the one certainty is that Canberra has a legal mess on its hands that could unfold on television screens for years.

Australians are struggling to make sense of a Indonesian legal system that seems wildly chaotic compared to the staid courtrooms they are used to.

As a tearful Corby pleaded with judges to look to God and show mercy in their verdict, television crews outside fought among themselves and photographers sprawled and smashed into trees as they jostled to get close to the hapless former student.

Across town, in the usually-quiet Bali police headquarters lockup, the scene was no better.

Network producers battled to lock down exclusive rights to the stories of the Bali nine, while families wandered into the crush of media wearing radio microphones, ready to capture the drama of their reunion with children who may face the death penalty.

One media representative from a network which has sent six television crews to Bali was elbowed to the ground by news photographers as he sought to shut down access to one of his "exclusives" in the alleged heroin gang.

Another television team told police they were family to get themselves into the exercise courtyard used by the nine Australians.

They were kicked out when police were alerted by competitors watching from outside.

Even Corby's translator and sister Mercedes wore radio microphones into the Denpasar District Court.

The heavily made-up Mercedes directed a documentary crew recording the inside story of her sibling's fight to avoid a life sentence for alleged drug smuggling.

It all added to the sense of chaos that has outraged Australians and helped convince them that Corby at least is not getting a fair go from the Indonesian courts.

"From my perspective this system seems crazy. The whole innocent until proven guilty thing has been turned upside down," said Colin from Perth, who arrived at court waving an Australian flag in support of Corby.

Scores of Australian tourists have come to the court in recent weeks to give Corby their backing, turning the two-storey building into an unlikely tourist attraction on the popular resort island.

Foreign Minister Alexander Downer has also railed against trial by television as some sections of Australia's media take advantage of the deference many Indonesians have towards westerners in general, and the reluctance of police officials to bar access to Corby and the nine Australian drug suspects.

Many of the court battles are being played out at the point of a microphone before the case even comes before the judges, particularly in the case of the Bali nine.

The AFP has also sought to defend both itself and the Indonesian police in case the mounting acrimony in Australia begins to affect the mood of the court in Denpasar.

Already the Indonesian prosecutor has lashed out at ill-advised hints in the Australian media by one of Corby's main backers, Queensland businessman Ron Bakir, that he was seeking a deal. Bakir said he was misunderstood.

But however hard the government attempts reason, the intense interest in the Indonesian legal system is not going to go away while Corby's trial runs through what is certain to be a long appeal process, and while the other nine Australians fight a possible death sentence.

ELEANOR HALL: Two high profile Indonesian legal actions have been dominating the headlines here this week.

The two drug smuggling cases involving Australians – one, the Shapelle Corby trial and other the arrest of the nine Australians known as the Bali Nine – have sparked enormous public interest and sympathy, and concern about just how the Indonesian justice system operates.

In a moment we'll hear from an Australian lawyer who had a role in devising the new Indonesian legal system and strongly defends it.

But joining us now in Melbourne is Indonesia analyst Damien Kingsbury, from the School of International Political Studies at Deakin University, who argues the Indonesian justice system in practice has some serious flaws.

Dr Kingsbury, thanks for joining us.

First to the arrests of the Bali Nine. There's been criticism of the Australian Federal Police for its role in this joint operation with the Indonesians. Has that been warranted in your view?

DAMIEN KINGSBURY: I think that the role of the Australian Federal Police in working with Indonesian police should be applauded generally. I think the problem here is that they've involved themselves in a case that brings potentially a penalty that is simply not acceptable in the Australian judicial system. So there's a moral question that's been raised there by that activity.

ELEANOR HALL: You're talking about the death penalty, but the Australian Government had no problem with the death penalty when it was the Bali bombers who were on trial.

DAMIEN KINGSBURY: Well, that was obviously a subjective judgement, but I think in principle that the issue of the death penalty does raise some serious moral questions in Australia, and involvement of Australian authorities in having that sentence effectively, or potentially, applied to Australian citizens abroad does raise a major dilemma.

That's not to suggest that the Australian Federal Police shouldn't work with the Indonesian police. Indeed it's been probably the most important element of a rebuilding of the relationship between the two countries. But that particular element of it – the death penalty – really does need to be separated out and considered on its own merits.

ELEANOR HALL: What should the Australian Federal Police have done in this case then?

DAMIEN KINGSBURY: Well, it's easy to judge from the outside, but clearly some of the offenders, or alleged offenders in this case, were on their way to Australia. They could have been arrested once they'd arrived in Australia, and the five who remained have been arrested in Indonesia. That wouldn't have involved the death penalty, at least on face value it wouldn't have. That was one option.

They did want to get them all, though, in one place, and that's why they worked with the Indonesian police to nab them there. Unfortunately, as I say, though, that's raised some very difficult moral dilemmas, and has called into question the nature of the cooperation.

ELEANOR HALL: Now, the Schapelle Corby trial. Of course she gave her impassioned plea in court yesterday. Has she been given a fair trial?

DAMIEN KINGSBURY: Well, it depends on what you mean by fair. Certainly within the Australian context it wouldn't be seen as fair. But within the Indonesian context it's probably fairly standard.

That should be noted, though, that the Indonesian judicial system really does have a number of flaws in it. It operates on a judicial process, or a judicial canon, which is questionable in the Australian terms, there's an assumption, generally, of guilt.

The rules of evidence are very poor, the training of both the judiciary and the defence teams is often very, very poor, and they don't have rules of sub judice and so on.

So in an Australian sense, no, it's not fair, but in an Indonesian sense this is pretty much standard practice. Unfortunately standard practice in Indonesia operates at what might be called a sub-optimal level.

ELEANOR HALL: You're saying that the Indonesian and Australian systems of justice are quite different, particularly on issues like the presumption of guilt, then?

DAMIEN KINGSBURY: Absolutely, I mean, they're almost diametrically opposite.

The method in which the trials are conducted in Indonesia is quite different. It's more of an inquisitorial process, whereas in Australia there's a presentation of evidence, there's issues of doubt and reasonable doubt, which doesn't exist in Indonesia.

It really functions in a very different manner. This is not even to mention, of course, the capacity for judges to be influenced by external sources – political influence, bribes, and so on.

ELEANOR HALL: So what do you consider the main flaws in the Indonesian justice system as it applied in this case?

DAMIEN KINGSBURY: Well, there's essentially an assumption of guilt that appears to apply here. The rules of evidence certainly have significant holes in them, and had the evidence been handled properly, I think that there would have been at least reasonable doubt to assume that Schapelle Corby was not an active drug courier.

ELEANOR HALL: When you say the evidence handled properly, you mean before the case came to court?

DAMIEN KINGSBURY: That's right. I mean things like fingerprinting, the weighing of the drugs, checking that against the original baggage weight when the baggage was checked in and so on. I mean, these things could have shown that there was external interference in the process, and raised doubt.

Unfortunately, though, in the Indonesian system the issue of doubt or a matter being beyond reasonable doubt doesn't really occur the way it occurs in Australia.

ELEANOR HALL: How do they make a judgement then?

DAMIEN KINGSBURY: Well, basically it's made up of the prima face evidence – the bag was hers, there were drugs in it – and then it's a question of trying to explain how that might have happened one way or another.

If you want to find innocence you have to offer up a plausible excuse that's backed by hard evidence. Unfortunately in this case that hasn't happened, and in part that's been because the evidence has been so badly handled. In part I think it reflects fairly poorly on Schapelle Corby's defence lawyer.

ELEANOR HALL: Damien Kingsbury from Deakin University, thank you.

April 29, 2005

THERE'S no doubting the popular passion surrounding the Indonesian actions against Schapelle Corby and the Bali Nine. Indonesian officials in Australia have been sent death threats. So, too, have Australian politicians.

The Howard Government was even urged by one Aussie taxpayer to send in the SAS and extract Corby from the Bali jail in an Entebbe-style raid. (One example of the problematic policy of pre-emptive strike that John Howard will not be taking up.)

Young Aussies held captive in "shocking" conditions in Indonesian jails facing the death penalty: it has the potential to touch a veritable harpischord of heart-strings, and distraught, suffering parents and relatives are sad fodder for the nightly pathos.

Yet, despite all the publicity, the depth of public feeling and the potential to reap a political whirlwind of recrimination and base emotions, the Australian political leadership has stood united.

The Coalition, Labor and the Australian Federal Police have maintained a proper stand in the interests of Australia and the various accused.

Howard and Alexander Downer have not sought to buy into the issue and, more importantly, Kim Beazley and Kevin Rudd have not given the slightest hint that they will pervert policy for a cheap headline.

But it's not just a Realpolitik issue of attempting to maintain good relations with Indonesia that is the point here. There can be fateful and even fatal consequences for the accused in an overheated and ill-informed public debate in Australia about trials overseas. As The Australian's Errol Simper so poignantly illustrated in his Media column yesterday, recalling his experience of reporting on the executions of Australians Brian Chambers and Kevin Barlow in 1986, anti-Australian sentiment in Malaysia sparked by anti-Malaysian comments in Australia didn't help their cause.

Ham-fisted and ignorant remarks about the Indonesian prosecutors, legal system and government have the potential to alter the atmospherics of the courtroom in Bali. An Australian media campaign aimed at raising sympathy for Corby or the nine accused heroin traffickers is going to have little positive impact in Indonesia.

What's more, if such campaigns are designed to maximise pressure on the Australian Government to seek clemency in the event of guilty verdicts and-or the death penalty they are only making the political task harder. Getting the Indonesian Government to commute a sentence or to activate legislation allowing prisoners to serve their terms in Australia is not made easier if the Indonesian Government faces public hostility fuelled by anti-Indonesian propaganda in Australia.

Howard and Downer are deeply committed to keeping the momentum going on the Australia-Indonesia relationship and the highly successful co-operation between Australian and Indonesian agencies. In a real bipartisan sense, Beazley and Rudd are acting accordingly.

The Labor leader and his foreign affairs spokesman could easily rise to the bait offered at every media interview to kick either the Government, Howard or the AFP. But both resist while properly reserving their right to campaign against any death penalties.

Indeed, Beazley went out of his way at his first opportunity to highlight the need for police co-operation not just because of "the movement of illicit drugs; it is a critical thing in relation to our ability to handle a terrorist threat in this region". There's the nub of the question: the same sort of co-operation and intelligence sharing that led to the arrest of the Bali bombers led to the arrest of nine Australians charged in relation to attempting to smuggle several kilograms of heroin into Australia.

When AFP commissioner Mick Keelty put the investigators' side in another interview with Laurie Oakes on Nine's Sunday program, there was no frantic call from Howard's chief-of-staff chiding him for speaking out on policy as there was the time he talked about terrorism.

Keelty dismissed conspiracy theories about drug stings and made the point that information was passed to the Indonesian authorities early in the piece. Australia has a policy of not providing evidence that can directly lead to someone receiving the death penalty, but there is a grey area where routine information is passed on for the other nation to act on. There are numerous successful cases of multinational operations in recent years.

In a fair but firm assessment it was Keelty who dispassionately set out the reality of the operational background to the Bali drug cases and touched on the wider issues of multinational co-operation. Keelty also alluded to the anomaly of media hype over Corby and the other nine when we co-operate successfully in reducing illegal drug shipments with other countries that have the death sentence for trafficking. Indeed, there are two Australians facing the death penalty in Singapore and Vietnam and there are more Australians imprisoned in Ho Chi Minh City than in any other foreign city.

Where is the outcry for them? What's more, we shouldn't forget that many Australians supported the death penalty in Indonesia during the trials of the Balibombers.

Of course, no consideration should be given to healthy international relations if it means condoning the death penalty. It is barbaric whether it's practised in Beijing, Texas, Singapore, Japan, Saudi Arabia or Bali. We just have to make it clear that the campaign against the death penalty is not just some excuse to run anti-Indonesian feeling.