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The Conversation

  • Written by Simon Butt, Professor of Indonesian Law, University of Sydney

On Thursday in Central Jakarta District Court, a panel of three judges decided one of the most high-profile and controversial criminal cases in Indonesian legal history.

The case highlights issues with Indonesia’s widely criticised judicial system.

After a four-month trial, broadcast live on two national television stations, Jessica Kumala Wongso, an Australian permanent resident, was found guilty of premeditated murder. The judges sentenced her to 20 years’ imprisonment for poisoning her friend Mirna Salihin at an upmarket cafe in Jakarta in January this year.

They accepted the prosecution claim that, after arranging to meet Salihin and a mutual friend, Hani, at the cafe, Wongso arrived early. She ordered drinks, and before her friends arrived, put a dose of cyanide into Salihin’s Vietnamese iced coffee. The prosecution said she placed three paper shopping bags on the table she was sitting at to hide what she was doing from CCTV cameras.

Salihin drank the coffee and then collapsed, dying before she reached hospital. For the judges, Wongso’s motives were jealousy and revenge. Wongso was jealous of Salihin’s happy marriage, and wanted revenge after Salihin had told her to break up with her Australian boyfriend, and because she had not been invited to Salihin’s wedding.

Wongso’s case was highly controversial from the start. Indonesia asked the Australian Federal Police to help them investigate Wongso for charges of premeditated murder, even though Indonesia’s Criminal Code allows judges to impose the death penalty for that crime.

Indonesian Law and Human Rights Minister Yasonna Laoly, reportedly gave a guarantee she would not face the death penalty. However, the minister cannot give such a guarantee, because prosecutors decide what penalty to pursue, and the courts can impose any penalty they like.

Adding to the controversy were allegations that senior Indonesian police refused to allow her lawyer to accompany her during questioning, thereby breaching police procedures and perhaps even the Code of Criminal Procedure. Police deny that they forced her lawyer from the room, but admitted that they “asked” the lawyer to leave the room to prevent him influencing her statement.

In court, and in the media, Wongso was portrayed as crazed, malicious and capable of murder. However, the evidence against Wongso has always been circumstantial and threadbare. Even prosecutors appeared reluctant to proceed to trial in her case, asking the police for more evidence on four occasions.

Because no direct evidence of her guilt exists, the trial consisted largely of expert witnesses, for both the prosecution and defence, opining about Wongso’s mental state and post-mortem tests on Salihin’s body. There was limited CCTV footage available. Almost none of the prosecution-led evidence was convincing, at least when compared with the defence evidence.

The prosecution called several psychologists as expert witnesses to testify about Wongso’s mental state in general, and after Salihin collapsed. However, none of them examined Wongso themselves, and their testimony appeared to be crude and lay rather than expert. For example, one described Wongso’s reaction to Salihin’s collapse as “strange” because the CCTV footage did not show that Wongso tried to help Salihin.

Another testified that it was unusual for someone to place their bags on a table when the seat beside them was vacant. Yet another raised questions about Wongso’s mental state, based on a police statement made by her former boss in Australia, who said she heard Wongso say:

“If I wanted to kill anyone, I know how to do it. I could use a gun. And I know the right dosage.”

Wongso’s former boss did not appear at trial to confirm this statement.

image Supporters hold Justice for Mirna pins outside the sentencing hearing for Jessica Kumala Wongso at Central Jakarta District Court in Jakarta. AAP/Oscar Siagian

Prosecutors alleged that Wongso knew that the café had CCTV cameras and where they were located, so that, as mentioned, she used shopping bags to block the view of her putting the cyanide in Salihin’s coffee. One expert testified that the CCTV footage showed Jessica making “suspicious movements” when she opened her handbag, and that perhaps she had put something on the table.

However, none of the footage played during the trial showed that she took anything from her handbag, much less that she pulled out cyanide and then stirred it into Salihin’s drink. In fact, Wongso’s lawyer demonstrated that she had sent a text message on her phone at the time her hands were obscured by the bags. This could account for the so-called “suspicious” movements.

Worse, the prosecution did not convincingly prove that Salihin died from ingesting poison, let alone cyanide. The coffee that Salihin drank was neither tested nor produced at trial. It was likely discarded at the cafe soon after Salihin collapsed. One expert from the National Police Hospital testified that Salihin’s intestines were corroded and her mouth was blackened, which was consistent with cyanide poisoning. The Court appears to have accepted this testimony over the mountain of expert testimony called by the defence, serious doubts about whether the cause of Salihin’s death was cyanide.

Critically, no autopsy was conducted, and toxicology tests conducted 70 minutes after her death revealed no cyanide in her gastric fluid, bile, liver and urine. Only small traces of cyanide were found in her stomach fluid several days after her death, but, as University of Indonesia forensic pathologist Jaya Surya Atmaja testified, this was probably from embalming chemicals.

The possibility remains, then, that Salihin died from natural causes such as a heart attack. An Australian pathologist supported these conclusions, testifying that he would expect much higher levels of cyanide in the stomach of a person fatally poisoned, there would also be cyanide in the bowels and liver. He explained that the onset of cyanide poisoning typically occurred up to 30 minutes after ingestion, not two minutes as the prosecution claimed. Other typical indications of cyanide mentioned by defence experts, including red skin, the smell of cyanide, and poison in the stomach, were not present.

Other important issues were ignored by the judges. After Salihin apparently complained about the taste of the coffee, both Hani and the cafe owner tasted it, but suffered no ill effects. Does this add support to the defence argument that Salihin might not have been poisoned after all?

The claim that Wongso “arrived early” at the cafe as part of a plan to put the cyanide in the coffee also does not withstand scrutiny: text messages produced by the defence suggest that Wongso arrived at the time the three women had agreed, but Salihin and Hani arrived late. If they had arrived on time, as planned, Jessica would not have had an opportunity to lace the drink.

With not much evidence to go on, the prosecution, and even the judges, asked numerous seemingly random questions to witnesses and the defendant during the trial that had no clear progression or direction, apparently to “trip up” the defendant.

The judges wrote in their judgement that Wongso’s crying during the trial had been a “stage show” because it had not “come from deep within her heart”; she had sobbed, but could produce no tears and did not need to hold a tissue to wipe tears from her face, they observed.

Immediately after the judges finished reading their decision, Wongso’s lawyer, Otto Hasibuan, declared that she would appeal, calling the decision a “death knell” for justice. The judges, he suggested, had ganged up again the defence, acting as though it were the prosecution and ignoring the defence’s evidence.

Whether she poisoned her friend or not, Jessica Wongso is entitled to a fair trial under Indonesian law. She does not seem to have had one yet.

CORRECTION: This article was corrected on October 28 to replace the line “She was deported” with “Indonesia asked the Australian Federal Police to help them investigate Wongso…” and the line “the Australian police relied…” with “Indonesian Law and Human Rights Minister Yasonna Laoly, reportedly gave a guarantee that she would not face the death penalty.” The Conversation apologises for the error.

Authors: Simon Butt, Professor of Indonesian Law, University of Sydney

Read more http://theconversation.com/jessica-wongso-found-guilty-in-cyanide-coffee-case-but-she-may-not-yet-have-had-a-fair-trial-67836

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