IN a last-ditch attempt to overturn the death penalty, Scott Rush’s lawyers will call on three witnesses to give evidence in the Bali Nine inmate’s final appeal in the Indonesian Supreme Court late next month.
Rush’s Indonesian lawyer, Robert Khuana, would not disclose the identities of the witnesses for security reasons, but he has not ruled out calling courier Renae Lawrence, who is serving 20 years with Rush in Bali’s Kerobokan prison. Mr Khuana said on Tuesday he was afraid that Rush, who is facing the death penalty for drug smuggling, would be moved from Kerobokan to a prison island off central Java, as the Bali bombers were in preparation for their execution.
Rush, 24, will be the first to lodge his appeal, ahead of fellow Australians Andrew Chan and Myuran Sukumaran, also facing death for their part in a plot to smuggle 8.3kg of heroin from Indonesia to Australia in 2005.
Mr Khuana outlined the arguments he would use to try to save Rush from execution, saying Rush was a courier, not an organiser, did not technically export the drugs, and that the judges failed to read all the facts and did not differentiate between the cases.
Leading a six-member legal team, Mr Khuana will present Rush’s case in the PK, or Reconsideration, a review of the prisoner’s last failed appeal to the Supreme Court in 2007, before different judges.
He will argue that Rush was one of six of the Bali Nine classified as drug couriers, while three were “organisers”, including Tan Duc Thanh Nguyen, “the recruiter”, whose death sentence was commuted to life in 2008.
“We will argue this is not fair, that it is a mistake. Our question is why was the decision different for Scott compared with the other five couriers? Why did they apply the same facts but impose a different punishment?”
Mr Khuana will review the role of the Australian Federal Police, who had the power and the information to stop Rush and the group travelling to Bali following a telephone call from Rush’s father, Lee. “Why did they let them come to the airport? The intention was to catch them in customs to be able to charge them with exportation,” Mr Khuana said.
Had the Bali Nine not passed through customs they would have been charged with possession, which carries a 10-year jail sentence.
Under the Indonesian Customs Act No 10 1995, the customs area is classed as an export and import area. But under Article 102 of the act, a person who enters or leaves Indonesia cannot be charged with exportation while carrying one or more documents including a passport, ticket and boarding pass. The Bali Nine had this documentation. Though the article was cancelled in 2006, it still stands in the Bali Nine case.
Mr Khuana will also argue that the legal process was wrong, and that Rush’s case was not standard procedure. The chronology of decisions suggests there may have been possible errors. In February 2006, Lawrence and Rush were sentenced to life. Lawrence and three others had their sentences reduced from life to 20 years on appeal in April. As a result of appeals by prosecutors in September, Rush and three others had the death penalty imposed.
In their appeals against the 20-year terms faced by most of the nine, prosecutors only called for them to be increased to life imprisonment. “If you read the Supreme Court verdict, there is a mistake from the judge. The prosecutors never lodged an appeal to the Supreme Court (for the death sentence),” Mr Khuana said.
The Australians’ last chance is a plea for clemency to Indonesian President Susilo Bambang Yudhoyono, who has not been merciful to drug traffickers.
And Kevin Rudd could appeal for clemency to the Indonesian President, who will visit Australia next month.
However, Mr Khuana prefers to think Rush’s case will not have to go that far.
