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Bali bombing sentences in doubt -

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Bali bombing sentences in doubt

Reporter: Jonathan Harley

KERRY O'BRIEN: When Indonesia's Constitutional Court ruled last month that it was in fact
unconstitutional to use retrospective terrorism laws to prosecute the Bali bombers, the Australian
Government described it as a technicality.

Well, that technicality has now become a significant loophole, to the shock and consternation of
the friends and family of all 202 victims of the bombing -- 88 of them Australians.

The death penalties and prison sentences handed down to more than 30 people convicted for their
role in the bombing may be in doubt, after a self-confessed key member of the bomb plot escaped
charges over the blast.

After earlier expressing confidence that those already convicted would serve their full sentences,
Foreign Minister Alexander Downer was worried enough to call his Indonesian counterpart today with
his concerns.

And we'll be discussing that with Mr Downer in a few moments.

But first, this report from Jonathan Harley.

JONATHAN HARLEY: He's the latest smiling assassin.

The man most widely known as Idris.

A man who confessed to help plan the Bali attacks but who could not be convicted for that crime.

JAKE RYAN: Like he said in his confession, that, you know, it was an act in Jihad and I want to do
this to, you know, look after Muslims and all that sort of stuff.

And he's done that and now he'll get away with it in a way.

So why wouldn't he be laughing.

DAVID 'SPIKE' STEWART: I can't understand it.

A man admits to killing 202 people, planning the whole thing and he gets off.

JONATHAN HARLEY: The South Jakarta court found Idris guilty of carrying out evil conspiracy in
assisting last year's Marriott Hotel blasts, in which 12 people were killed, and sentenced him to
10 years in prison.

More than 200 people were killed in Bali and despite confessing to his key role in those attacks,
the case against him came unstuck on the basis of a technicality.

For victims of the Bali blasts, the ruling is shocking and infuriating.

Jake Ryan was badly burnt and went back to Bali to see the likes of Samudra, tried and convicted.

JAKE RYAN: I don't know what's going on with their legal system.

Having been in the court there and seen it and seen the way the court proceedings went, I had
faith, complete faith, that they were doing the right thing and now they've gone totally back on
what they've done and I know it's a legal issue, but you know just makes a mockery of it again.

JONATHAN HARLEY: But it was not unexpected.

And it's by no means the end of the matter.

PROFESSOR DON ROTHWELL, INTERNATIONAL LAW, SYDNEY UNIVERSITY: Common sense would dictate that if
the laws under which they've been convicted have been found to be unconstitutional, that
immediately appeals would be lodged.

JONATHAN HARLEY: The scene was set for this legal conundrum last month.

Indonesia has two anti-terrorism laws.

One is a broad piece of legislation on terrorism crimes passed last year, which allows for the
death penalty.

The second enabled its application to the Bali case retrospectively.

It's this latter law which was struck down by the Constitutional Court last month.

International law expert Don Rothwell says backdating such laws is forbidden by Indonesia's
constitution.

PROFESSOR DON ROTHWELL: The principle of retrospective criminal laws being seen as being repugnant
under both international and national legal systems is well founded not only within common law
countries like Australia, but also in civil and Islamic law countries throughout the world.

So this is a very fundamental principle which goes to the heart of legal systems globally.

JONATHAN HARLEY: The retrospective use of the law was successfully challenged by Masykur Abdul
Kadir last month, when he appealed against a 15 year jail term for helping the bombers.

It's been a long-held concern only now coming to a head.

ASSOCIATE PROFESSOR TIM LINDSEY, ASIAN LAW CENTRE, UNIVERSITY OF MELBOURNE: It's been coming for at
least since the first day of the trials in Bali.

It was raised on day one of Amrozi's trial and was brushed aside by the district court judge
hearing it.

It's been raised consistently through all the trials.

JONATHAN HARLEY: And so emerges the question of whether existing convictions could unravel?

Dozens are already convicted over the attack, but topping the list of whose sentences are now in
doubt, the man dubbed the smiling assassin, Amrozi, sentenced to death a year ago and who lost an
appeal in January.

Also sentenced to death, Imam Samudra and Mukhlas.

Jailed for life for their role in the Bali attacks -- Ali Imron and Mubarok.

Earlier today Amrozi's lawyer confirmed he will appeal his client's conviction.

DEFENCE LAWYER WIRAWAN ADNAN: It was believed that he was charged with the wrong law, that was our
opinion from day one, from the beginning.

DAVID 'SPIKE' STEWART: I knew this was going to happen when I was over there and watching Amrozi's
trial and all that.

Just a gut feeling, but I'm scared now that it's going to have a flow-on effect.

JONATHAN HARLEY: For Dave Stewart who lost his 29-year-old son Anthony, the Bali saga and the
search for justice seem set to go on forever.

DAVID 'SPIKE' STEWART: It's just sort of never ending.

You think, you really think -- I won't say closure but you think something 's happening, something
good's happening and then all of a sudden they go bang.

And it all comes back and you just get hate all over again, you know.

To John Howard and Downer, do something.

Do something now.

Make sure that it doesn't bloody happen again.

I don't want your grandkids or your sons or daughters going to Bali and this happen again or
Jakarta or anywhere.

Do something in case it does happen.

JOHN HOWARD, PRIME MINISTER: Now we will continue to put all the legitimate pressure we can on the
Indonesian Government to make certain that these people remain in jail, remain punished and remain
fully accountable before the law.

Exactly how it works its way through I can't be certain at the moment, but I can promise the
families of the victims that no stone will be left unturned by my Government to see that these
people remain behind bars.

JONATHAN HARLEY: But there are many complicating factors such as the spectre of double jeopardy,
the legal principle which prevents anyone from being tried for the same crime a second time.

But experts argue that shouldn't apply to the Bali bombers.

PROFESSOR DON ROTHWELL: In other words, if the Indonesian courts took the view that because the
first set of charges were brought on the basis of unconstitutional laws, they could take the view
that the charges were null and void to begin with.

And therefore they would take the view that, well the whole process has to start again which could
in fact mean a complete retrial.

JONATHAN HARLEY: And that could well mean trials on more conventional charges such as murder, arson
or illegally transporting explosives.

PROFESSOR DON ROTHWELL: I would find it extraordinary that if the courts quashed the original
guilty verdicts, that they would then be allowed to walk free.

I would have thought that the Indonesian authorities would then seek to immediately rearrest them
on more common criminal charges such as murder and so forth and then for a new trial to commence.

JONATHAN HARLEY: For Jake Ryan, that's almost unthinkable.

JAKE RYAN: It's very bizarre, it's bizarre and it's very tough for the people trying to get
through, get through it all, because they just have to re-live it again and again.

I don't know how often you can keep doing that.

JONATHAN HARLEY: Don Rothwell believes Australian authorities may have to consider a last-ditch
legal option.

PROFESSOR DON ROTHWELL: As an ultimate fall-back, there could be a potential for Australia to take
legal action in these cases, there is certainly some capacity under Australian law for potential
prosecutions to be brought against the Bali bombers.

That is of course if the prosecution cases completely fail in Indonesia.

KERRY O'BRIEN: Jonathan Harley with that report.