Reporter: Jonathan Harley
KERRY O'BRIEN: Welcome to the program. For the Australian alleged heroin smugglers known as the Bali 9, who could face a firing squad after being arrested and charged on Indonesian soil. It's a blunt question of life and death. But did it have to be that way? Right from the start there have been questions about why the Australian Federal Police, who were tipped off before the bust, didn't wait to arrest them when they arrived back on home soil. Two of the alleged drug mules have taken action in Federal Court, claiming the AFP acted illegally in assisting the Indonesian police, exposing them to the death penalty they would not have faced if convicted here in Australia. Now, an explosive letter has emerged from evidence presented in Bali, revealing the AFP gave Indonesian authorities detailed advanced information of the plot as well as instructions to "take whatever action was appropriate". That "action" may well lead to the death penalty for at least some of the nine if they're found guilty. Jonathan Harley reports.
JONATHAN HARLEY: From the moment they were arrested and in the case of those caught at Denpasar airport, unceremoniously undressed, the spectre of the death penalty has hung over the heads of those now known as the Bali 9.
REPORTER: Any word from family back home, at the moment, mate?
JONATHAN HARLEY: So, too, questions have hung over the Australian Federal Police. The most disturbing, whether or not the force knowingly let the Bali 9 face the prospect of death by firing squad.
JOHN NORTH, LAW COUNCIL OF AUSTRALIA: It was an invitation to arrest them, charge them and finally, put them in front of a firing squad, if found guilty.
JONATHAN HARLEY: We've known for some time that the AFP tipped off the Indonesians, but the precise dimension of that exchange has never been clear. Now we have a significant chunk of the puzzle. This is official correspondence between the AFP and its Indonesian counterparts, tendered as evidence in Bali and obtained by the 7:30 Report. The letters outline, in meticulous detail, the extent of the Australian intelligence. The Bali 9 were being watched well before they departed for their alleged heroin assignment and the AFP was only too willing to pass on what they knew, and what they fear, to the Indonesians.
JOHN NORTH: They told the Indonesian authorities when, why and where all of these drugs would be attempted to be imported into Australia and they told them that they could act as they wished before these people left Australia.
JONATHAN HARLEY: But just as the letters renew questions about the role of the AFP in sealing the Bali 9's fate, the spotlight is also drawn on how the AFP is torn between two objectives.
DR SANDY GORDON, FORMER HEAD OF INTELLIGENCE, AFP: The AFP is under two contrary pressures. One is to adhere to the spirit of the guidelines and the other is to interdict heroin coming into this country.
JONATHAN HARLEY: The letters were tendered in court yesterday as part of the trial of 19-year-old Queenslander Michael Czugaj, one of the alleged mules. Dated 8 and 12 April, they lay out in detail AFP intelligence on the Bali 9 and their planned movements. In light of the events which transpired, the letters read like a prophecy, detailing how the heroin would be strapped to the mules' bodies, the sorts of baggy clothing they would wear and fingering Andrew Chan as the main man. In the first letter, the AFP requests of the Indonesians if there is suspicion of Chan and/or the mules of taking the drugs at the time they departed, then the bapak, or the chief, can take whatever action necessary.
JOHN NORTH: It appears from the tenor of the letter that they told the Indonesians exactly what was going down in Indonesia and invited them to take action, again in Indonesia.
DR SANDY GORDON: I think the crucial issue, however, here is whether they could have arrested these people back here in Australia, even if they weren't carrying heroin and whether they would have had evidence to bring the full syndicate to court.
JONATHAN HARLEY: For Police Commissioner Mick Kelty, the man spearheading a new era of co-operation with Indonesian police in the wake of the 2002 Bali blasts, the Bali 9 case presents problems that just won't go away. This morning on Southern Cross Radio Commissioner Mick Kelty was unapologetic about the AFP's conduct.
MICK KELTY: This is the nature of our business, so we can't apologise for it. The outcomes are things that we have no control over.
JONATHAN HARLEY: In such cases of police-to-police assistance involving countries where the death penalty applies, the AFP is guided by this document which states: "Australia will exercise discretion when considering requests for mutual assistance." But Law Council president John North argues the government has an overriding responsibility.
JOHN NORTH: The AFP is an agent of the government. Government policy does not allow co-operation where the death penalty comes into play.
JONATHAN HARLEY: Once suspects have been charged.
JOHN NORTH: No, at all. Australian policy is not to help from government to government if they know the death penalty will be available.
JONATHAN HARLEY: Former head of intelligence at the AFP Dr Sandy Gordon believes the policy is ambiguous and needs urgent review.
DR SANDY GORDON: Almost any co-operation that we can think about throughout the Asian region could result in the death penalty. So, the point that I think the police would make in their defence is here we can't stop co-operating. There's always the possibility of the death penalty.
JONATHAN HARLEY: Calls for review, too, from the Federal Opposition.
SENATOR JOE LUDWIG, OPPOSITION JUSTICE SPOKESMAN: And the Australian Federal Police do need clear guidelines, clear policy, as to how this law is in fact going to operate and so that they have certainty.
JONATHAN HARLEY: It's still not clear exactly what the AFP would have preferred the Indonesians to do. In its letter dated 8th April, the AFP even appears to flag the prospect of the Bali Nine facing court in Indonesia. Indonesian police are asked to take photographs of any meetings among the alleged conspirators to use in the court process here. Since the letters are signed by the senior police liaison officer in Bali, Paul Huniford, it would appear that "here" refers to Indonesia..Today, AFP chief commissioner Mick Keelty said the aim of the AFP is said to identify the entire drugs syndicate.
MICK KEELTY: We also if the letter specified we were trying to identify the entire syndicate, so right from day one this was an operation where we were speculating on the events that may occur and no-one knew that the letter would result in the people picking up heroin straight away.
JONATHAN HARLEY: To that end, it seems the operation may have failed. Indonesian police missed the crucial moments when the heroin was allegedly handed over to Andrew Chan. The big fish slipped the net and these nine otherwise unremarkable suburban Australians are in the hands of the Indonesian courts.
Click Here for Bali 9 Case Information