Alleged drug mule Cassie Sainsbury and others in her situation can't expect Australia to rescue them

Screenshot of Smart Traveller Website
Photo courtesy Department of Foreign Affairs and Trade website

So far the case is not exceptional other than for the media attention it has generated.

Yet again another Australian has been arrested overseas on drug related charges. Cassie Sainsbury from Adelaide was detained at El Dorado Airport in Bogota, Colombia on 12 April where she was found in possession of 5.8kg of cocaine concealed inside 18 headphones in her suitcase. Sainsbury claims that she obtained the headphones from a person she befriended in Bogota and that they were acquired as gifts for friends in Australia. Sainsbury’s family and fiancé are convinced of her innocence. A legal team has been engaged both in Australia and Colombia. Her Colombian lawyers have indicated that it may take over a year before her case goes to trial, but much less if she agrees to a guilty plea.

So far the Sainsbury case bears striking similarities to that of Schapelle Corby, the Gold Coast resident who was stopped in 2004 upon arrival at Bali’s Denpasar Airport where her boogie board bag was found to contain 4.2 kg of marijuana. Corby was eventually convicted in 2005 on charges of seeking to import the drug into Indonesia and sentenced to 20 years in jail. Corby has always denied any knowledge of the drugs. Following several remissions of her sentence, Corby was granted parole in 2014, and is due to be deported to Australia later this month. Both the Sainsbury and Corby cases highlight expectations on the ability of Australian government to come to the aid of Australians caught up in overseas legal processes through the provision of consular assistance. In 2015-2016 DFAT reported a total of 15,740 consular cases which can range from simple matters such as the replacement of a lost passport to the death of a citizen. A total of 1,551 of these cases or ten percent involved Australians who had been arrested overseas, while 391 related to Australian prisoners in foreign jails.

In recent years successive Australian governments have come under public and media pressure to respond to cases involving Australians arrested or detained overseas. In 2012 Labor Foreign Minister Bob Carr was particularly proactive when an Australian lawyer working for the International Criminal Court in The Hague, Melinda Taylor, was detained in Libya. After an intense diplomatic effort involving several countries Taylor was released. Current foreign minister Julie Bishop was actively engaged in the case of Australian journalist Peter Greste, who in 2013 was arrested in Egypt and eventually convicted of defaming Egypt. Greste was held for 400 days before he was eventually deported in 2015 following legal appeals and considerable diplomatic and political pressure. Likewise Bishop was closely involved in the cases of Andrew Chan and Myron Sukumaran, two members of the so-called Bali Nine, who had been arrested and convicted on drug trafficking charges in Indonesia in 2005, and were executed by an Indonesian firing squad in April 2015. Australians caught up in legal proceedings in China such as Stern Hu and Matthew Ng have also attracted attention.

All of these consular cases, which involved the government providing support and assistance to the detained Australians and their families, had distinctive features which ultimately resulted in the Foreign Minister and DFAT investing considerable diplomatic and political capital. The cases included procedural and legal irregularities, violations of fundamental human rights, extra-judicial detention, freedom of the press, and imposition of the death penalty. In the cases of Chan and Sukumaran not only did the Australian government makes representations at the highest political level in an effort to save their lives but was prepared to take Indonesia to the International Court of Justice. It was only because Indonesia refused Australia’s request to refer the dispute to the court that their case did not go to The Hague.

While the Sainsbury case is at the very early stages, Foreign Minister Bishop has already been asked to respond to media questions as to the Australian government’s response. So far the case is not exceptional other than for the media attention it has generated. Consular assistance has been provided which has included checking on her welfare and ensuring that she has legal representation. All of this is consistent with the DFAT Consular Services Charter which makes clear what the Australian government can and cannot do for Australians detained overseas and awaiting trial. The DFAT Smartraveller website warns Australians travelling to Colombia “You are subject to the local laws of Colombia, including ones that appear harsh by Australian standards. If you’re arrested or jailed, the Australian Government will do what it can to help you under our Consular Services Charter. But we can't get you out of trouble or out of jail.” Australians are advised to exercise a high degree of caution due to the threat of criminal activity.

Suggestions that Sainsbury may be able to enter a plea bargain and find her way back to Australia need to be treated with caution. Australia does not have a prisoner exchange treaty with Colombia that could facilitate such a process. There is nothing about her case so far which would require the Australian government to do anything more than it has. As Bishop has said, and not for the first time, Australian law does not follow Australians overseas and anyone who travels internationally needs to understand the consequences of breaking foreign laws and the limited assistance the Australian government can provide.

This article was first published in Fairfax Media on 11 May, 2017.

Updated:  10 August 2015/Responsible Officer:  College General Manager, ANU College of Law/Page Contact:  Law Marketing Team