Found with cocaine in Colombia, we should presume Cassandra Sainsbury's innocence

Twenty-two-year-old Australian woman Cassandra Sainsbury was arrested on April 11 at El Dorado airport in Bogota, Colombia. Sainsbury was due to return to Australia via London. Her suitcase contained 5.8kg of cocaine.

She is now being held in El Buen Pastor women’s prison in Bogota, where conditions are reportedly heavily overcrowded, with many inmates lacking access to basic services.

Sainsbury could be imprisoned for 12-to-25 years if convicted of trafficking such a large quantity of cocaine.

What next for Sainsbury?

Sainsbury claims she met a man during her stay in Colombia who took her sightseeing. She has told family and lawyers he sold her a bulk package of headphones, which she intended to give as gifts to her bridal party at her planned wedding.

Sainsbury’s mother and sister claim that she put 18 individually wrapped packages into her suitcase unopened, and had no idea these contained cocaine rather than headphones.

Yesterday, Channel 7 News reported that US Drug Enforcement Agency officials tipped off Colombian police that Sainsbury might try to leave Colombia with drugs. This tip was delivered on April 5, two days after Sainsbury’s arrival in Colombia.

Should Sainsbury plead guilty to trafficking charges, and provide information on the man who gave her the packages, she might receive a sentence of four-to-six years’ imprisonment. However, should she decide to plead not guilty, Sainsbury could wait between three and four years for a trial.

The risks of prejudgement

Sainsbury’s family have sought donations online to help fund her defence. Some have responded with support; however, the fundraising site also attracted multiple comments presuming Sainbury’s guilt. It has now been shut down.

Media outlets are obliged to ensure a standard of reporting that supports the fairness of the criminal justice process. For example, by identifying a person as an “alleged” offender, media reports do not presume guilt before it can be tested through a properly conducted trial.

However, it is impossible to hold private individuals engaged in online commentary to the same standard. High-profile legal cases attract public attention and many people are drawn to publicly share their views on such cases, especially via social media.

In Sainsbury’s case and many others, this can mean a proliferation of public comments that assume guilt and show little compassion for the position of an accused person. This is a real concern, because the supposition of guilt is fundamentally at odds with the right to a fair trial.

The International Covenant on Civil and Political Rights (ICCPR) enshrines the right to liberty and security of person. Article 9 requires:

• an accused be promptly informed of the charges they face;

• criminal defendants be guaranteed trial within a reasonable time;

• where appropriate, defendants be bailed in advance of their trial rather than remanded in custody; and

• accused persons have the right and capacity to challenge their imprisonment before a judge.

It has not yet been reported whether Sainsbury has been formally charged. However, if she chooses to plead not guilty, she faces the unconscionably long waiting for her trial. It appears she would remain in custody throughout that time.

This level of risk may encourage Sainsbury to plead guilty, despite her protestations of innocence. A fair judicial process would ensure a speedy trial so as to eliminate the risk that an innocent person might confess in order to limit their term of imprisonment.

Article 14 of the ICCPR sets out further specific criteria for a fair trial. At this stage of Sainsbury’s case, the key requirement is the presumption of innocence. This means it is up to the prosecution to prove the guilt of the accused beyond reasonable doubt.

This requirement is an essential safeguard against wrongful conviction. A trial in a court of law cannot be properly substituted with a poorly informed trial by social media.

Accused persons are not guaranteed a jury trial in Colombia, although the country’s constitution does guarantee due process. There have been reports of judicial corruption and interference with the justice process by drug cartels. However, some Australian lawyers have expressed the view that Sainsbury can hope for a fair trial.

Regardless, people drawn to comment online regarding Sainsbury’s circumstances ought to consider the ethics of their choice.

If faced with a similar situation, would not most people prefer that a judge or jury came to a trial unbiased by what they had read or heard about a case?

We should not be so quick to abandon people to their fate

Thankfully, unlike some other Australians facing drug prosecutions overseas, Sainsbury is not facing a risk of capital punishment.

However, one thread of public discourse in Sainsbury’s case echoes the case of Andrew Chan and Myuran Sukumaran, executed in Indonesia in 2015.

In both cases, many people in Australia have stated their acceptance of whatever fate may meet the accused. The underlying reasoning seems to be that anyone tempted to traffick drugs overseas should be well aware – and deterred – by the severe penalties they risk.

If we accept this reasoning, we implicitly accept a weakening of concepts fundamental to criminal justice. For what is the point of a fair and properly conducted trial, if we assume anyone facing a drug prosecution outside Australia must be guilty or, at least, so naive as to deserve to be treated as guilty?

This strain of public discourse reflects comfort with negative and backward-focused motivations for criminal punishment. It focuses on the objectives of deterrence (which is notoriously difficult to prove) and retribution.

While community safety is a legitimate goal, which sometimes requires the incapacitation of a defendant, it is crucial the criminal justice system stay above a drive to revenge.

Instead, at arm’s length from the circumstances of an offender and their alleged crime, the criminal justice system should aim to promote reform and the rehabilitation of offenders for successful reintegration into general society.