Thursday, March 30

‘Systemic failures at every step’: the Indonesian children Australia sent to adult jails for years | Australian immigration and asylum

A bare few miles inside Australian waters, the dark nearly absolute, a small fishing vessel sat low in the ocean, waiting to be boarded by the Australian navy.

Maikel Husa, a slightly built boy of just 15, was among those watching as the patrol boat approached.

Husa had been deceived. He left his village on Sulawesi for Java on the promise of paid work transporting goods. The captain instead took on 58 asylum seekers, destined for Australia.

When they were intercepted north of Ashmore Reef, in the dying hours of New Year’s Eve 2009, one of first things the Australians asked him was his age.

Husa, afraid and far from home, told them he was a child.

“I said I was born in 1994,” he recalls.

He would soon tell immigration officials and federal police the same thing.

Husa told the Australians he just wanted to go home. That’s exactly where he should have been sent, according to federal police policy on juvenile people smugglers.

Instead, he would spend years behind bars in maximum security prisons in Australia, held as an adult aged 19.

Maikel Husa: ‘I said I was born in 1994.’

Husa is one of dozens of children, some as young as 13 when they were detained, who were wrongly prosecuted as adult people smugglers using deeply flawed evidence to show how old they were. The boys were jailed in Western Australia’s adult correctional system before being released years later and quietly sent back to Indonesia.

On Tuesday, Husa and five others won a remarkable victory.

Despite the passage of more than a decade since their conviction, they argued successfully for the WA court of appeal to hear their cases and quash their convictions, overcoming a refusal by the former attorney general Christian Porter to refer them for a fresh appeal.

“I can say there were systemic failures at every step for these children,” their lawyer, Mark Barrow, of Ken Cush & Associates, says. “In the end, the six acquittals stand as truth of the injustices.”

The court found a “substantial miscarriage of justice had occurred” and found that, without the X-ray evidence, all six boys would “not have been charged as an adult”.

The court said commonwealth prosecutors now acknowledged their earlier reliance on the wrist X-ray technique “gives rise to a serious doubt about the integrity” of the convictions and left “no reliable evidence” to sentence the boys as adults.

“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 case has done much more than simply clear the boys’ names.

It has exposed hundreds of pages of internal records, which for the first time reveal the full story of Australia’s shocking conduct, including the extent to which police knew there were questions about the accuracy of the evidence they were using to prosecute the children as adults.

The documents tell the story of six children lured from isolated fishing villages with vague promises of work on boats, only to become collateral damage in a government’s desperate attempt to appear tough on borders.

Interview transcripts and affidavits show the boys told anyone who would listen – navy, immigration, police – that they were under 18.

But in nearly all the cases the Australian Federal Police instead relied on reports from a doctor who said he could help determine a person’s age using X-rays of their wrists.

Seven years later, his evidence in a similar prosecution would be criticised by appeal judges as “unsatisfactory and unreliable” and as having “no acceptable basis in fact”.

The Guardian can now reveal that both police and senior government figures were told before the six boys were convicted that there were serious questions about the technique’s accuracy.

Internal police notes show an investigating officer working on some of the cases had been involved in a remarkably similar prosecution eight years earlier, during which doubts were raised about the accuracy of using wrist X-ray evidence.

The courts in that case heard that using the technique to determine age was “not an exact science” and open to error, and that the key reference tool on which it depended should be used with “judicious scepticism”.

These doubts did not stop police relying on wrist X-rays when they arrested the six boys in 2009.

Instead, internal records show, police altered the dates of birth the boys gave them – adjusting the year, but keeping the month and day – to make their ages fit the X-ray evidence and to prosecute them as adults.

The new dates, described by the boys’ lawyers in court as “fictitious”, were used on sworn legal documents.

The prosecutions continued even after the immigration department warned the government about the reliability of the X-ray technique, pointing out the UK considered it “an inexact science” with a “margin of error [that] can sometimes be as much as five years either side”.

That warning was given before five of the six children were convicted as adults in the WA district court. In two cases, those of Hamzah Gogo, 15, and Muhammad Maleng, 13, the warning came just a month before they were sentenced to five years in adult prisons.

The government did nothing to intervene.

Now, senior legal figures are calling for an independent inquiry into the actions of police. The retired New South Wales supreme court judge Anthony Whealy says the AFP’s decision to rely on the wrist X-ray evidence, despite questions about its reliability, was “deeply concerning”.

“Incarceration of juveniles in adult prisons is a matter of the gravest concern, both domestically and internationally.”

‘This is not the truth’

At 13, Rudi Usman was the youngest of the six.

Usman left school after his fourth year and had spent much of his young life working on fishing boats in Oebobo, a village of about 1,000 people on the outskirts of Kupang, on the western part of Timor.

Rudi Usman
Rudi Usman, pictured recently, was just 13 when he was taken into custody.

Before his voyage to Australia, he earned the equivalent of about $13 a month, almost all of which went to his parents.

In December 2009 he was asked to help crew a boat carrying timber. He would be paid 2m rupiah – about $250 – an amount that would transform his family’s circumstances.

It was only once he was on board that he discovered the boat was carrying passengers – 53 Afghans, mainly Hazaras – bound for Australia.

Twenty-two miles north of Ashmore Reef, Usman’s boat was intercepted by an Australian customs vessel. Taken to Christmas Island, he told police he was born on 12 February 1996, making him 13.

But the date of birth he gave to police was altered. The new date – 12 February 1991 – appeared on sworn legal documents.

That made him 18, aligning with the findings of the wrist X-ray, and allowing him to be prosecuted as an adult.

Usman was sentenced to serve five years in an adult prison, the mandatory minimum introduced by the Howard government.

Maikel Husa’s date of birth was similarly altered.

He told the Australian authorities he was born on 1 January 1994, but police changed it to 1 January 1990.

“This is not true,” he says. “I didn’t tell anyone in Australia that was my date of birth.”

Husa, like all but one of the boys, pleaded guilty, and his lawyers did not contest the evidence about his age. Only one of the six Indonesians, Muhammed Maleng, gave authorities any reason to believe he was an adult, initially telling police he was 13, before saying he was much older because he “thought it would help me if I was much older. I made up my age.”

Husa was sent to maximum security prisons, where he spent more than two years among some of WA’s most dangerous criminals.

The adult inmates of Perth’s Hakea jail had a nickname for him – “the boy”.

“I asked why and they said because I looked so young.

Usman Ari on a boat
Usman Ari: ‘I told them I was 16 years old’.

X-rays and experts

Vandi was broke when a vague offer to work on a boat landed in his lap in 2009.

Born on the island of Binongko, the 17-year-old farm worker and fisher had never travelled out of sight of his birthplace.

He would soon find himself detained on an Australian navy vessel off Browse Island, north-west of the Kimberley coast.

“I was asked how old I was,” he says. “I said I was 17 years old and born in the year 1992.”

He told immigration officials and police the same. Three days later, police charged him as an adult.

The prosecution notice and indictment, both sworn documents, listed his date of birth as 17 March 1990, giving him an age of 19, which fitted with the X-ray evidence of the Perth-based radiologist Dr Vincent Low.

Vandi: ‘I said I was 17’.

Low’s report, seen by the Guardian, told police that “complete fusion has occurred at all examined growth plates. This indicates skeletal maturity and therefore a skeletal age of 19 years or greater.”

Police and prosecutors should have had reason to question the evidence. Other experts they had used had expressed concerns about the limits of using wrist X-rays to determine age, including Dr Sven Thonnell, whom commonwealth prosecutors had used repeatedly.

“It really doesn’t help at all in determining the chronological age or the skeletal age,” Thonnell said in giving evidence in a 2002 case.

Immigration officials had also sounded the alarm internally about the use of such X-rays.

In June 2010, eight months before Vandi went to trial, the immigration department provided a briefing to senior government ministers. It warned that wrist X-rays could have an error range of at least two years either way.

Interpreting wrist X-rays, the department warned, was highly subjective. Different experts could interpret the same image differently.

The department also pointed the ministers to the UK’s official guidelines on the practice. They were unequivocal.

“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 guidelines said. “The answer is that it cannot.”

The briefing was provided well after Low’s reports to police. But it prompted no intervention from the government in Vandi’s case, nor in any of the others.

The X-ray image of Rudi Usman’s wrist
The X-ray image of Rudi Usman’s wrist.

‘Not an exact science’

In 2002, seven years before the arrest of Vandi and the other five boys, a remarkably similar case came before the courts.

Federal police were attempting to convince the WA children’s court to let them prosecute an Indonesian boy, who insisted he was 15, as an adult people smuggler.

The boy had repeatedly told authorities he was not an adult. But, just as they would in 2010, police relied on a wrist X-ray, interpreted by Low, who concluded the boy was likely to be over 18.

Low’s technique involved inspecting an X-ray of an accused’s wrist and comparing it against a reference tool for skeletal maturity, known as the Greulich and Pyle Atlas. The reference tool was built largely from the bones of healthy, middle-class Americans.

He relied on the tool to say that, on average, skeletal maturity occurs at 19 years old.

During the 2002 proceedings, Low himself conceded it was “not an exact science” and there was a “possibility of error” in conducting X-ray comparisons.

The court heard that the authors of the GP Atlas had warned it should be used with “judicious scepticism”. The authors said the tool was meant to be used only to estimate a person’s skeletal maturity, rather than their actual age, and said there was a tendency to attribute it a greater precision than they had ever intended.

While the court accepted the doctor’s evidence, it found, given the potential uncertainty and the defendant’s insistence he was a child, that the boy was probably under 18.

The AFP brought its own appeal to the WA supreme court, saying the judge had not given enough weight to Low’s evidence, but the appeal was dismissed. The supreme court judge said Low’s evidence must be read subject to “the cautions and warnings to which I have referred contained in the Atlas on which the evidence was based and must be read subject also to the qualification which Dr Low gave about his own evidence”.

Yet, seven years later, the AFP again relied on the wrist X-rays to charge Vandi and the other five boys as adults.

AFP case notes, seen by the Guardian, show one member of the investigative team for some of the cases in 2010 was closely involved in the 2002 case that raised serious questions about the accuracy of the practice

Vandi’s age was raised at his trial, but the court ultimately deemed him an adult.

It would take more than two years for the then federal attorney general, Nicola Roxon, to release on licence 15 children who had been convicted, due to concerns about their age. Cases were dropped against a further 48 children who had been charged and remanded in adult jails, where they had spent on average 199 days.

One, Ali Jasmin, had his conviction overturned in 2017.

Jasmin’s case led the way for the current group of six. It also prompted a landmark class action against the Australian government by 122 people who said they were detained or prosecuted as adults for suspected people smuggling.

In overturning Jasmin’s conviction, the WA court of appeal was scathing of Low’s evidence.

“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,” the judges ruled. “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.”

In 2012 the Australian Human Rights Commission released a scathing report, An Age of Uncertainty, which found the method was “inherently flawed”, because, among other things, there was no constant relationship between age and skeletal maturity, and the technique took no account of differences between Indonesian populations and those used as the basis for the GP Atlas.

Other experts told the AHRC more than half of all men achieved skeletal maturity before the age of 18.

Low did not respond to a request for comment.

But in a submission to the AHRC inquiry that led to the report, he defended his methods, saying they were based on an exhaustive dataset and a widely used method to analyse a person’s skeletal maturity.

Low said other studies showed there was no difference in skeletal development based on ethnicity and people from backgrounds with poorer nutrition were likely to develop more slowly, meaning the technique would tend to identify them as younger, rather than older. He said his opinions left open the possibility that subjects were under the age of 18.

“My opinion and testimony introduces a realistic appraisal of the possibility of the subject being less than 18 years of age due to the normal variation in human physiology,” he said.

The Royal Australian and New Zealand College of Radiologists, of which Low is a fellow, wrote to the government in 2011, well after his evidence in these cases, urging it to abandon the use of wrist X-rays for age determination.

“We advise you that these methods are unreliable and untrustworthy when used as criminal evidence in a court of law,” the college said.

The practice is now completely discredited and no longer used.

‘He just burst into tears’

Two memories burn brightly in Colin Singer’s mind when he recalls 27 April 2010.

Singer, an independent prison visitor in Perth, had arrived at Hakea prison, ready to help anyone who might need him.

Colin Singer helps one of the boys wrongfully imprisoned as an adult
Colin Singer helps one of the boys wrongfully imprisoned as an adult.

Waiting for him were the prison’s superintendent, deputy superintendent and chaplain. “Excuse me, sir, I think we have a problem,” they told him.

Singer was taken to the prison’s medical director.

The doctor was distressed. He handed Singer a piece of paper, with a series of names highlighted.

“He had this piece of paper in front of him, and it had the names of all the prisoners they were doing the medicals on,” Singer says. “He had highlighted them and then he had just written across this thing, ‘THEY’RE KIDS’.”

Some of the children, the doctor said, were prepubescent.

Singer can still recall seeing Ali Jasmin for the first time.

“I remember going and there’s this tiny kid, just holding on to this fence. I remember going up to him and saying, ‘Hey mas, are you Ali Jasmin?’

“He just burst into tears.”

At first, Singer thought the mistake would quickly be corrected.

He raised it the same day with the office of the inspector of custodial services and the Indonesian consulate.

“I was an idiot. I thought this is so bad, come tomorrow morning, everything’s going to be fixed. Ten years later, we’re still fighting the same thing.”

Singer tried to protect the children. He watched their cases through the courts, advocated for their release, publicly and privately, and began flying to Albany, where some of the children were transferred, at his own expense.

“The key thing is, from day one, everyone knew they were kids,” he says.

In An Age of Uncertainty, the AHRC said the Australian government’s treatment of children caught up in smuggling operations was “disturbing” and that “Australian authorities apparently gave little weight to the rights of this cohort of young Indonesians”.

“Each of the Australian Federal Police, the Office of the Commonwealth Director of Public Prosecutions and the Attorney-General’s Department engaged in acts and practices that led to contraventions of fundamental rights … such as the right to a fair trial.”

The commission said agencies laboured under heavy workloads, with difficult investigations and limited resources, leading to poor practices.

“Others, however, seem best explained by insufficient resilience in the face of political and public pressure to ‘take people smuggling seriously’; a pressure which seems to have contributed to a high level of scepticism about statements made by young crew on the boats carrying asylum seekers to Australia that they were under the age of 18 years.”

One Indonesian national, whose case was abandoned because the commonwealth could not establish he was over 18, was incarcerated for more than two years – of which more than 21 months was spent in an adult jail – before he was released without any conviction and allowed to return home.

Maikel Husa has been home nearly a decade now. He is married and his daughter will turn two next month. He has rebuilt his life and, like others, says he does not like to think about his time in Australia.

“When I got home, I worked as a fisherman on a small boat. I still do this. I didn’t like what happened to me in Australia.”

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