Six Indonesian children wrongly jailed in Australia as adult people smugglers have cleared their names in a case exposing a grave and “substantial miscarriage of justice”.
The six Indonesians, aged between 13 and 17 at the time of their arrest, were intercepted on fishing boats in Australian waters in 2009, during the highly charged political climate around border protection.
The children had been lured on to the boats from their impoverished villages with vague offers of highly paid work, often unaware of their destination or that they were to transport asylum seekers.
Internal records seen by the Guardian show the children repeatedly told immigration officials and police they were children, which ordinarily would have meant they were sent home under Australian Federal Police policy.
Instead, police relied on the use of X-rays to interpret the maturity of their wrists, comparing them to a reference tool built using the bones of healthy, middle-class Americans. The X-rays were used to conclude that the boys were likely to be adults, and police charged them as such. All but one of the boys pleaded guilty.
That technique has since been completely discredited.
On Tuesday, the WA court of appeal overturned the convictions of Rudi Usman, Hamzah Gogo, Muhammad Maleng, Maikel Husa, Usman Ari and Vandi, who were represented by Ken Cush & Associates. The court found “a substantial miscarriage of justice has occurred”.
The court found that, without the wrist X-ray evidence, all six boys would “not have been charged as an adult” and the WA district court would have had no jurisdiction to deal with their cases.
“The cogency of the remaining available evidence, as to the date of birth of each appellant, cannot support a finding that, at the material time, any of the appellants was of or over the age of 18 years,” it found.
The court said commonwealth prosecutors had now conceded their earlier reliance on the wrist X-ray evidence “gives rise to a serious doubt about the integrity of each plea of guilty and about the integrity of each decision not to put in issue the appellant’s age”.
“The Crown has conceded that a miscarriage of justice was occasioned by each of the convictions; the judgments of conviction should be set aside; and judgments of acquittal should be entered,” the court said.
“The Crown accepts that there was no reliable evidence when each appellant was convicted and sentenced that he was of or over the age of 18 years.”
Documents attached to the boys’ case reveal both police and senior government figures knew before the boys were jailed that there were doubts about its accuracy.
Documents seen by the Guardian show an investigating officer in some of the cases had been involved in a remarkably similar prosecution eight years earlier, during which the court heard that using wrist X-ray evidence to determine age was open to error and “not an exact science”, and that the key reference tool on which it depended should be used with “judicious scepticism”.
Despite those concerns, police altered the dates of birth provided to them by the six children – changing the year of birth, but keeping the month and date – to turn them into adults and make their ages fit the X-ray reports.
The new dates, which the boys’ lawyers told the court were “fictitious”, were used in prosecution notices, indictments and other sworn legal documents to prosecute the children as adults.
An internal immigration department briefing from June 2010 shows the government was directly warned about the reliability of the technique. That briefing occurred well before five of the six children were convicted and sentenced, but after the X-ray reports were produced.
The briefing warned the government that wrist X-rays were prone to error and pointed to UK guidelines warning against using them to determine age, which said: “The issue of whether chronological age can be determined from the estimate of bone age has been discussed at great length in the literature. The answer is that it cannot.”