Christopher Knaus and Ben Doherty – Two Indonesian children who were imprisoned as adult people smugglers using deeply flawed evidence have asked attorney general, Mark Dreyfus, to use his mercy powers and resolve the "mockery of justice" overseen by his predecessor Christian Porter.
Earlier this year, Guardian Australia used a trove of internal documents to reveal how federal police had placed fictitious dates of birth on sworn legal documents to prosecute eight Indonesian children as adult people smugglers, relying on a wrist X-ray age assessment technique they knew at the time to be questionable.
The children, some as young as 13, were jailed as adults in maximum security prisons in Western Australia in 2010, and spent years housed with some of the state's worst criminals.
Interview transcripts obtained by Guardian Australia show the Indonesians repeatedly told police, immigration and navy officers that they were children, something that should have seen them sent home in accordance with federal policy. Instead, police used the wrist X-ray interpretations to deem them adults, despite being warned over the reliability of the technique seven years earlier.
Earlier this year, six of the eight boys had their convictions overturned by the WA court of appeal, which found the reliance on the wrist X-rays had led to a miscarriage of justice. But two others – Anto, who uses one name, and Samsul Bahar – are still stuck in legal limbo.
Having previously exhausted their appeal rights on other grounds, the pair are now dependent on a referral from the commonwealth's attorney general to have their cases heard by the WA court of appeal. They remain convicted criminals despite the overwhelming consensus that the wrist X-rays used to prosecute them were completely unreliable.
Both Anto and Samsul were 15 at the time of their arrest. Each spent years in detention before being released and sent back to Indonesia, where they now live.
Photographs taken immediately after they were detained, obtained by Guardian Australia, clearly show their childlike appearance.
In 2020, Anto and Samsul turned to then attorney general Christian Porter to ask him to use his powers of mercy and refer their cases for appeal.
Porter refused, telling them he believed a court "could not reasonably conclude that a miscarriage of justice has occurred".
That's despite a finding in a similar case – that of Ali Jasmin – two years earlier that there had been a miscarriage of justice. In that case, the WA court of appeal found the wrist X-ray evidence to be "unsatisfactory and unreliable" and overturned Jasmin's people smuggling conviction.
Commonwealth prosecutors told Porter in 2019 they had no opposition to the pair's request for mercy. Porter's stance also diverged from his colleagues Greg Hunt and George Brandis, who both made referrals in similar people smuggling cases.
Anto and Samsul's lawyers, Ken Cush and associates, have now made a new referral application to Dreyfus, asking him to use his powers to allow the appeals to be heard.
In correspondence seen by Guardian Australia, the lawyers described Porter's prior handling of the requests as an "obvious mockery of justice".
They said the courts had now overturned convictions in eight separate cases where wrist X-ray evidence had been used. In the six most recent cases, prosecutors conceded a miscarriage of justice had occurred.
Dreyfus' office confirmed they had received Anto and Samsul's request and are considering it carefully.
Guardian Australia has also seen evidence that when Porter was WA corrections minister in 2010 he received complaints suggesting underage Indonesian children were being held in the state's prisons.
Porter responded to the complaint by dismissing the concerns and placing heavy reliance on the wrist X-rays conducted by federal police.
"None of the prisoners currently in Departmental prisons have been verified as being under the age of 18," he wrote, in a letter dated 6 December 2010.
"Bone density age verification tests are undertaken by the AFP prior to the transfer of the prisoner into Departmental custody where the age of the prisoner is in question. Following transfer into Departmental custody, where claims or allegations are made of a prisoner being under 18 years of age, the Department seeks confirmation from the AFP that a bone density test was conducted."
Porter has not responded to multiple requests for comment on his handling of the cases.