Donna Nelson’s guilty verdict is not an aberration. Japan has a high criminal conviction rate for a reason

Australian grandmother Donna Nelson was convicted today by a panel of three judges and six jurors of illegally transporting nearly two kilograms of drugs into Japan. She was sentenced to six years’ imprisonment.

As typically occurs when citizens of Western countries face trial in Japan, her case has provoked condemnation of Japan’s so-called “hostage justice” system – and particularly its 99% conviction rate.

Like all countries, Japan’s criminal justice process has many objectionable features. One is its extremely lengthy pre-trial detention, almost always without bail. Nelson’s ran to nearly two years. This certainly warrants critique, although this period will be discounted from her sentence.

Nelson also alleges poor interpretation during her initial police questioning. It is not clear, however, that even flawless translation would have materially altered how her case was handled.

Her reportedly extensive solitary confinement and restrictions on communication with anyone but her lawyer (for very brief periods, and never during police interrogation) are also problematic features of Japanese criminal investigations. These should be reformed.

However, Australian criticisms around the fairness of Japanese criminal trials – and Nelson’s conviction, in particular – are problematic. They reveal much about the preconceptions of Western audiences.

A high bar for prosecutions

As many experts in Japanese law have previously tried to explain, the high conviction rate in Japan does not necessarily mean trials are unfair.

It’s due to the extreme caution of Japanese prosecutors, who work with very limited resources and face severe professional consequences for “failure” at trial (that is, an acquittal). As a result, prosecutors only send to trial defendants they are certain a court will convict.

If conviction rates are lower in Australia, it is generally because defendants are being indicted on the basis of evidence too weak for Japanese prosecutors to ever dream of sending to court.

There is something to be said for Japan’s approach. Trials are traumatic for defendants, victims and jurors. They are arguably best avoided when justice and rehabilitation can be achieved through less punitive means.

Proving intent

The real question, then, is whether it was wrong to indict Nelson in the first place.

The fact of her drug possession was undisputed. Nelson, however, denied knowingly bringing the drugs into Japan, claiming she was duped as part of a “romance scam”.

The prosecution’s job was to prove Nelson intended to import the drugs. The presence of drugs in someone’s luggage will generally lead a court (in any jurisdiction) to infer such an intention, in effect forcing the defendant to demonstrate things are not how they outwardly appear.

Australian drug law and policy does something similar in treating mere possession of large quantities of drugs as presumptive evidence of an intention to supply to others.

Legal experts acknowledge this inference represents a “compromise” with the presumption of innocence, but one necessary for effective law enforcement. Subjective states of mind are notoriously hard to prove, and circumstantial evidence is often all a court has to go on in such cases.

Nelson’s seemingly impeccable character is not a persuasive argument against drawing this inference. Good people can and do break the law in uncharacteristic and irrational ways. Particularly if – as Nelson asserts — they have been manipulated by a skilled criminal operator.

Nelson’s lawyers complained the authorities seemed more intent on reiterating her guilt than investigating the man she alleges deceived her. But the inevitable priority for law enforcement everywhere is to indict the person caught red-handed with a suitcase full of drugs. They won’t generally expend their limited investigative resources on substantiating the person’s explanation for why things are not as they seem.

Smuggling enterprises survive precisely because their operatives are highly skilled at vanishing without a trace when things go south. This leaves the carrier to take the fall.

A potential diplomatic intervention

The legal difficulties in these kinds of cases explain why intervention generally comes through diplomatic efforts. We have seen this recently in the negotiations over potentially transferring the surviving “Bali Nine” members from Indonesian to Australian detention.

But the Australian authorities are unlikely to compromise vital relations with Japan by implying disrespect for the integrity of its legal process or the country’s right to strictly punish crimes committed on its territory.

So, any intervention would probably only extend to requests that Nelson’s sentence be served partially in Australia on compassionate grounds. And even this is unlikely before a substantial portion of her sentence has elapsed.

The Japanese criminal process is designed to procure a defendant’s compliance and confession. This leaves it chiefly to prosecutors’ discretion to ensure only the strongest cases are tried and in all probability lead to convictions.

This expectation of a confession sounds egregious, but all systems of criminal justice seek somehow to incentivise defendants — inevitably including some wrongly accused — to confess.

Australia does the same thing by generally imposing harsher sentences on defendants who maintained their innocence at trial than those who pleaded guilty and spared the legal system the expense of a full hearing.

It’s understandable Australians might find Nelson’s conviction upsetting. But it is not clear that someone similarly apprehended in Australia would have a different experience or result.