06 December 2010

Ariel: The Trial Continues...

The trial continues...

The latest hearing of the "Ariel Does Indonesian Celebrities" trial was a public one. The fact that the hearing was a public one was not all that surprising in the big scheme of things. In essence, the hearing was merely a formality in that the judges were handing down their decision on the objections (eksepsi) of the defense to the prosecution's case. From what I can tell, the objections were contained in an injunction application.

The scenic District Court of Bandung is the place where the nitty gritty of this trial is to be played out. The crux of this case is whether Ariel did anything to prevent the distribution of the sex tapes he allegedly shot with Luna Maya and Cut Tari, and if he did do anything whether it was enough to absolve him of responsibility for the eventual distribution of the sex tapes.

According to the presiding judge in this case, Singgih Budi Prakoso, there is enough to proceed with the calling of witnesses. It would seem that Singgih is leaning towards the arguments that Ariel did not do enough to prevent the distribution.

Obviously, Afrian Bonjol, the lawyer for Ariel, was of the view that Singgih did not give sufficient thought or legal reasoning when rejecting the objections. Nevertheless, Bonjol has stated that Ariel accepts the decision of the judge and is looking forward to proving his innocence as the trial goes forward.

The next hearings for this trial are set for 13 December 2010 and 16 December 2010.


lawbugger said...

sounds muy interesante.

He has to prove his innocence according to his lawyer) - woe is he

I assume this is not a strict liability offence. I guess that gives Ariel some wriggle room at least.

Rob Baiton said...

@ Lawbugger...

Why the Spanish? Are you trying to give me a hint as to who you might be?

I guess the point the law was trying to make was that the rejection of the eksepsi and statements to the effect that there was enough to proceed on this one, suggests that Ariel is going to have to prove his innocence by putting forward an alternate scenario as to what went on leading up to the distribution of the sex tapes.

Ultimately, there is still a presumption of innocence. And, theoretically the prosecution is still required to prove its case, but all the same, the point in the previous paragraph is a valid one.

I have argued previously that there is plenty of wiggle room. In fact, I have argued that there is too much wiggle (or wriggle) room, and as such this case should not have been the test case for the provisions here.

Who said anything about a strict liability offense? As far as I can tell the prosecution is not arguing a strict liability position.

lawbugger said...

ok got it. the Spanish is from a past life. Guatemala 1984.

By stict liability I was referring to certain cybercrimes in Australia where I believe the prosecution only needs prove actus reus. If this were the case here, in your opinion would indeed he be responsible/liable for the distribution if his laptop was stolen?

Your blogging for a while there was almost becoming extensive and up to the moment enough for me to log on to you instead of the SMH during the day. I guess I need not fear having to pay for news in the future - I have a substitute. Im not so interested in the tatoos; but I guess they are no more distracting than the numerous adverts in newspapers.

Rob Baiton said...

@ Lawbugger...

Don't divulge too much, I might work out who you are by joining the dots! But, 1984 makes you an old bastard, doesn't it? :)

I figured that was what you were getting at.

Actus reus on the making of the tapes or the distribution? They are two different acts, aren't they? If the court were to accept that the laptop was stolen then how do you reasonably prove that he committed the act of distribution?

Change the facts ever so slightly. Assume you are taking a controlled prescription medicine, such as morphine, and someone breaks into your house and steals your prescription meds and then proceeds to offload them over the internet or even down the street on the known drug-dealing corner, are you guilty of distribution?

Nope, if the court accepts the defense argument that the laptop or external hard-drive (at least that is what I understood to be the device used for distribution) was stolen, then this case has to get tossed.

The prosecution argument, and one that seemingly the court is prepared to accept, is that Ariel did not do enough to prevent the distribution from happening.

Presumably, the "not enough" angle is that he did not erase the tapes after he made them or he did not sufficiently secure them to prevent them from being accessed in the event his 'equipment' was stolen.

I am not convinced that this argument is a legitimate one nor am I convinced that it is sustainable. If it does succeed then it sets a really poor precedent for the future. It would be a foregone conclusion that a guilty conviction in this case will be appealed, as will an acquittal.

As to strict liability, I will need to go back and check, but I did not think that the articles of the law forming the indictable charges here were strict liability ones. If that is the case then mens rea would also need to be proved to a satisfactory degree, and to my mind that is not something that can be done. Not, at least, on what I know of the facts to date.

Rob Baiton said...

@ Lawbugger...

As to the tattoos. To each their own :)

Perhaps they are the equivalent to adverts. They do, after all, tend to bump up the daily visitor statistics...

Anonymous said...

Thanks for your comments. I prefer to be called an old bugger, more in line with my current "nom de". And an atrophied one at that. Too old and tough to tatoo. I note you have ample room for a couple of tats. I wonder what you would chooose?? As for the Luwak entry I note that "Seven sebelas" is still running in Bandung.

hav a good one. Holiday here

Rob Baiton said...

@ Lawbugger...

Semantics! You know that "you old bastard" is a term of endearment here in Australia, right?

"Ample room", that is a bit rude, isn't it? :)

I have been thinking of adding to my collection for a while. I have been thinking a portrait as one. I would also like to get a couple of commemorative pieces inked as well.

And, on 7-11, the point being?

lawbugger said...

just joking on the ampleness.

an old bugger is about the same where i come from

the thing about 7/11 is that 7/11 stores (due to slSlurpees)are going gangbusters in Jakarta at the mo, giving Alfamart a run. In Bandung we see a translated trademark (a breach right? as in apel computer) pulling them in.

Passing off at the least....

I thought there was some commonality to the luwak case you posted on??

Rob Baiton said...

@ Lawbugger...

Ah, now I am on the same page.

It only becomes a potential infringement if the rightful holder pursues the alleged breach.

Then again, an Indonesian court might say that it is sufficiently distinctive that it would not cause any confusion.

Maybe if someone was to set up an Ice Teller in Kingsford, next to UNSW, we would see how it might be handled here in Australia.