In the shadow of the firing squad

BY IAN MUNRO

It was when all was lost and their plight was at its worst that the condemned men were at their best. 

With their deaths by firing squad imminent, Myuran Sukumaran and Andrew Chan, once alleged by police to be the “strongman” and the “Godfather” respectively of the Bali Nine drug smuggling operation, confirmed the truth of their rehabilitation with deeds of compassion. 

“It’s well documented that the process of execution is deeply traumatic for all involved,” says Julian McMahon (BA(Hons) 1987, LLB 1990, Trinity College), the longest serving of the team of Australian lawyers who represented the condemned men. 

Chan and Sukumaran knew that they were being watched, and their integrity was being assessed to the last, he says. They faced death caring for their fellow prisoners and their executioners. 

“They held everyone else together. The prisoners as a group died praying and singing, and I saw most of them at length in the days leading to their death. They were composed, and for the most part…” – here, McMahon pauses for a long moment to find the right word before concluding – “serene.” 

Though their case had rolled on for 10 years, dropping in and out of Australia’s national consciousness, the nation was transfixed when the two convicted Australians were executed in Indonesia earlier this year. 

Standing in their corner for eight of those years – largely unseen – was that band of volunteer human rights lawyers, committing their time, skill and emotional energy to trying to save the pair as their case wended its way through the Indonesian judicial system. 

The deaths of Sukumaran and Chan would ultimately leave some in the legal team feeling raw and frustrated, while insisting none of it was really about them. McMahon, for one, resists any focus on himself and refuses to discuss the case in personal terms. 

The long road to Nusakambangan Island, where the Indonesian government conducts its executions, began at Bali’s Denpasar Airport on April 17, 2005 when four young Australians were arrested with heroin strapped to their bodies. Three others in possession of heroin were arrested at a Kuta Beach hotel. 

Chan and Sukumaran – “the boys” to their lawyers – were also arrested in connection with the smuggling operation. In February 2006 they were found guilty of heroin trafficking and sentenced to death. 

Almost immediately legal networks in Melbourne and overseas were tapped to provide a defence. It began in 2006 when the Chan and Sukumaran families sought out Lex Lasry QC, who was known for trying to save another Australian, Van Tuong Nguyen, who went to the gallows in Singapore in 2005. 

Lasry recruited McMahon, another who had acted for Nguyen. Over time the team would grow and change as circumstances and career shifts dictated. In 2007 Lasry was made a Justice of the Supreme Court of Victoria, leaving McMahon as the sole barrister. 

He in turn recruited eight barristers and solicitors to the collective, but along the way two more left to take up senior appointments: John Champion SC (LLB 1973, GDipArts(Crim) 1974, GDipCorp&SecLaw 1994), who became Director of Public Prosecutions; and Mark Taft SC, who became a County Court judge. 

Other recruits were prominent defence barrister Peter Morrissey SC (BA(Hons) 1981, LLB(Hons) 1991), and Michael O’Connell SC, who has lived in Indonesia and is fluent in the language. 

Just like the shifting membership, there was a touch of improvisation in the way each lawyer’s role played out. Morrissey became local and international media spokesman, while McMahon, O’Connell, and solicitor Veronica Haccou, who is also fluent in Indonesian, worked on the ground in Indonesia. 

Despite the desperate nature of the exercise there was no lack of lawyers willing to try to save the men. None would be paid, but that is not unusual, says McMahon. 

“Barristers in criminal law operate under the cab rank principle – you take the next case that comes along if you have the time and it’s appropriate that you do it, for example, if you don’t have a conflict of interest,” he says. 

“Often barristers try to apply that principle whether or not a brief is a paid one. It’s also common for barristers to carry multiple briefs at the same time. “You don’t have one case and work on it until you have another case, so the pro bono case is just another case you are working on.” 

McMahon tells students at the University that the privilege of studying brings the obligation to share their skills pro bono. He told a student publication in 2012: “With the luxury of quality education comes the responsibility to show courage and to lead.” 

Peter Morrissey says working unpaid on deserving cases is “good for the soul”. “We all do a lot of pro bono,” he says. “With me, it’s all mixed in. I was doing (paid) work along with this at all times. It’s really your own principles at work. For me it’s really a joy to be in the thick of legal life. It’s nice to live a life where altruism and self-interest complement each other.” 

Does it take a personal toll? “There is a sadness in the loss, if you lose a case,” says Morrissey. “And very frequently that happens, but that’s part of the lot of being a defence lawyer. If you are playing at the top level of criminal law you have people who are going to get 20 years. 

“During the running of the case the toll is on your family. I don’t have any complaints. I wish I had done more.” 

While the Australian lawyers drafted appeal and clemency applications for Sukumaran and Chan, in court the work fell to Indonesian human rights lawyer Todung Mulya Lubis, who was recommended to McMahon as he built the team. 

“At this point (August 2006) they had lost in the Supreme Court and had been sentenced to death three times in eight months. Their profile in the media was disastrous and there was a real expectation that execution was a strong chance in the foreseeable future,” says McMahon. 

“All of my contacts in a number of countries identified senior commercial lawyer Mulya Lubis. He has a lifelong history of fighting for human rights in Indonesia.” 

Yet representing accused drug offenders carries a stigma in Indonesia. “He was submitting himself to enormous personal criticism in order to act for people on death row,” says McMahon. “He is a person I hold in the highest regard.” 

Michael O’Connell had studied Indonesia’s language and literature, had taught legal aid lawyers there and was familiar with its legal system. Trying to save the lives of Chan and Sukumaran was a collaboration, he says. 

“We would write draft papers … send them to Indonesia saying these are the types of arguments we think are ope
n. They would look at them and accept them or not. They would Indonesian-ise the arguments they wanted and would work those up. It meant going there two or three times a year to see the clients and talk to the lawyers.” 

Once President Joko Widodo unexpectedly refused clemency for the pair in December 2014 and January 2015, the lawyers had to try to fight that decision in the courts. They took the case to each of the courts where it might have been possible to have the merits of the case or the President’s decision reviewed, but were unsuccessful in obtaining a full hearing in each instance. A further complication emerged with allegations of judicial corruption.

O’Connell recalls: “Even on the day of the executions we were arguing with the Judicial Commission, saying that they should summon Andrew and Myuran as part of their investigation into the corruption allegations. Right up until they were killed we had those arguments running. It’s impossible not to be touched by the intensity of it.” 

Following such tortuous legal paths burnt up untold nervous energy and creative thought. “He will not tell you, but Julian was astounding in those months,” says Morrissey. “He was almost full time from December (2014) while taking zero paid work here in Australia.” 

And why do they speak of the condemned men as boys? “They were 21 and 24 when arrested,” says Morrissey, “and there is a sort of arrested development thing that happens in jail. And you come to feel very protective towards them.” 

Over time, he believes, the public perception of the pair shifted, but only once they shifted first. Says McMahon: “About seven years ago they made a decision to lead good lives. They not only stuck with the commitment, but they showed tremendous integrity and courage in holding to that ideal so that by leading good lives themselves and encouraging others to lead good lives through education, in Myuran’s case, and religion in Andrew’s case, they could help other prisoners and improve themselves, and have anyone who chose, notice that they had reformed and were good people. 

“And the proof of the depth of that transformation was exhibited in the manner of their dying, which was essentially an exercise in taking care of the other prisoners who were to be executed, and the guards and their executioners.” 

For Morrissey, the truth of their rehabilitation was its emergence under trying circumstances. “By the time I met them each had a good name in prison,” he says. “They changed their lives and they sustained that change. You are under such pressure in a prison that you can’t fake it.” 

Ultimately, they were executed with six others, their final legal case unresolved. As McMahon describes it, it is almost accidental that he campaigns on the death penalty. “I just take the briefs that come into my room. People know I do the work so they send it to me. I am involved because I never say ‘no’ if someone wants me to speak about the death penalty.” 

Morrissey likewise says he would not hesitate to take on a similar case: “It’s not an abstract career move where you think, ‘Oh, it’s time I did a death penalty case’. It’s more that the story comes to you.”