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They were tiny': the Indonesians still fighting their conviction as adults in Australia

The Guardian - April 29, 2022

Christopher Knaus and Ben Doherty – Staring at the camera, Anto's face, wide-eyed and child-like, invites a simple question.

How could anyone, let alone Australia's federal crime fighting agency, see an adult gazing back at them?

Anto was 15 in June 2009 when he was on a fishing boat carrying 50 Afghan and Iranian asylum seekers that was intercepted near Ashmore Reef.

From a poor Indonesian village, he jumped at a vague offer of work aboard the boat. He had no idea he was going to Australia. All he knew was the money would help his family survive.

When the boat was intercepted, interview transcripts show Anto told Australian authorities in no uncertain terms he was a child, born on 14 April 1994.

Under Australian federal police policy, he should have been sent home. Instead, police relied on a deeply flawed X-ray technique to deem him an adult.

The date of birth Anto gave police was altered to 14 April 1991, and the new date was included on his prosecution notice, a sworn document seen by Guardian Australia.

With the flick of a pen, Anto suddenly became an adult.

The Guardian has obtained images of Anto when he was first detained by Australian authorities. They show, for the first time, the child-like face law enforcement encountered after the 2009 interception.

Despite his insistence that he was 15, police relied on the wrist X-ray and hauled Anto before the Western Australian district court, where he was prosecuted as an adult and sentenced to five years in an adult maximum security facility in Perth.

Police had changed Anto's date of birth to fit with an X-ray taken of his wrist, which their preferred radiologist used to deem his bone mature. Using a reference tool based on the bones of healthy, middle-class Americans, the doctor made an assumption that the wrist bone generally matures at the age of 19.

"It is [a] reasonable interpretation that Mr Anto is older than 19 years of age," the radiologist told police.

The technique has since been completely discredited. But police had also been told years before Anto's arrest that wrist X-ray comparisons were open to error and an "inexact science".

Senior government figures had also been briefed on UK guidelines stating the technique could not be used to accurately estimate age and may have a margin of error of up to five years.

Unclear road to justice

Colin Singer, then an independent prison visitor, found Anto in the WA jail system back in 2010 and has been fighting for justice for him and other children jailed as adult people smugglers ever since.

Singer still remembers his shock at seeing someone clearly so young being held in an adult jail.

"They were all nice kids, but he was one of the ones who stood out. He was a really, really nice kid," Singer said. "They were tiny ... they not only looked like kids, they acted like kids."

On Tuesday, six other Indonesians won a fight to overturn their convictions and clear their names, redressing an injustice allowed by grave failures of police, prosecutors and the federal government.

The court ruled a "substantial miscarriage of justice" had occurred in their cases due to the reliance on wrist X-rays.

But Anto's conviction still stands. For him and one other Indonesian, Samsul Bahar, the road to justice is not so clear.

Both appealed against their convictions on unrelated grounds while still behind bars, exhausting their appeal rights. They were eventually released in 2012 and returned to Indonesia, where they remain.

Now, more than 10 years later, both are left relying heavily on a referral from the federal attorney general to lodge a fresh appeal against their convictions in the WA courts.

Their plea came before the former attorney general Christian Porter in 2020, who refused to assist them, saying they had no prospect of success.

Guardian Australia revealed this week that Porter had denied referrals in similar cases, despite having prior involvement in the issue as the WA corrections minister in 2009 and 2010.

As corrections minister, Porter had received a complaint warning him he had children in his government's jails. In a letter in December 2010, seen by Guardian Australia, Porter relied on the wrist X-rays and said: "None of the prisoners currently in departmental prisons have been verified as being under the age of 18."

Singer said it was sad the Australian government was still denying culpability for what it did to the children.

"I think this injustice has gone on long enough," he said. "It doesn't reflect well that in Australia, as a country, we would treat young children like this, of any nationality, of any race, of any religion."

The Australian federal police had reason to doubt the reliability of the X-ray evidence long before the cases against Anto, Samsul and the other children in 2010. They were involved in a 2002 case in which a court heard serious concerns about the technique's reliability.

The immigration department had also sounded the alarm internally to the government about wrist X-rays before the convictions of Anto and Samsul.

A briefing to the federal government warned against relying on wrist X-rays and pointed to the UK guidelines on the practice, which categorically stated the technique should not be used to determine age.

Catherine Branson was president of the Australian Human Rights Commission when it published an excoriating 2012 report, An Age of Uncertainty, detailing Australia's treatment of underage asylum boat crew.

Last year, Branson told Guardian Australia she thought at the time political pressure was felt by the government agencies responsible for investigating and prosecuting smuggling.

"I concluded that these agencies wanted to be seen to be bringing prosecutions and securing significant penalties. They wanted to be seen to be taking people-smuggling seriously.

"They wanted to find some way to determine age, there was a high level of anxiety to find a biological marker that could tell you precisely how old a person was, but, in the end, their reliance on the wrist X-rays proved to be ill-founded."

The approach of Porter in denying referrals to the children diverged from that of former attorney general George Brandis. Brandis received the same request in 2015 from lawyers for another boy, Ali Jasmin, who was jailed when he was 12. The wrist X-ray technique had deemed him an adult.

Brandis referred the case to the WA court of appeal and Jasmin's conviction was ultimately overturned.

Source: https://www.theguardian.com/australia-news/2022/apr/30/they-were-tiny-the-indonesians-still-fighting-their-conviction-as-adults-in-australi