Originally published by New Matilda on May 7, 2015
A bill aiming to clear the way for the trials of three Aboriginal children murdered on Bowraville mission more than 20 years ago has been introduced to state Parliament, in the ongoing struggle for justice for a community still crippled from past trauma.
Greens MP David Shoebridge yesterday introduced the Crimes (Appeal and Review) Amendment (Double Jeopardy) Bill 2005 in order to clarify the legal definition of ‘adduced’, which held up previous applications to send “fresh and compelling” evidence back to the Court of Criminal Appeal.
It is one of the first private members bills introduced in the life of the new Parliament, which sat for the first time since the state elections this week.
From 1990-1991, three Aboriginal children were murdered within months of each on Bowraville mission. Their names are Colleen Walker, 16, Evelyn Greenup, 4, and Clinton Speedy Duroux, 16. The only person ever accused of the crimes is a non-Indigenous man who hung around the mission at the time, and who has been acquitted over Clinton and Evelyn’s murders.
Colleen’s body has never been found.
The families have always maintained there would have been a better chance of conviction if the three trials were combined into one, similar to the case of Ivan Milat, in which seven murders were combined into one.
That belief is supported by independent legal advice, and by NSW Police, who headed a renewed investigation in 1997 after the original investigation was botched, and tarnished by an underlying racism.
The bill was introduced following a period of consultation, resulting in a report produced by Mr Shoebridge.
It follows a parliamentary inquiry into the family response into the murders, which handed down a number of recommendations last year, two of which are specifically designed to clear the way for the families to take the accused back to court.
The families campaigned to have the double jeopardy laws overturned and in 2006 were successful, but because the legal terms ‘adduced’ and ‘admissible’ have never been tested in NSW courts, two former Attorneys-General knocked back new applications submitted on behalf of the families.
The “fresh and compelling” evidence relates to a key witness statement that was originally misdated, and was tendered in one trial but later ruled inadmissible in another.
Mr Shoebridge’s report says there are two legal interpretations of the word ‘adduced’.
Shoebridge, right, with fellow Greens NSW MP Jenny Leong. Image: twitter/@ShoebridgeMLC
“One legal interpretation of ‘adduced’ is that if the evidence is presented to the judge, but rejected as inadmissible under the laws of evidence, then it has been ‘adduced’. Another, alternative interpretation is that evidence is only ‘adduced’ once it is both presented to the Court and admitted into the evidence before a jury,” the report says.
“This is important in the Bowraville case because if ‘adduced’ has the former meaning then the tendency and coincidence evidence linking all three murders cannot be fresh under the NSW double jeopardy laws.
“If it has the latter meaning, then the evidence could be the basis for a double jeopardy application.”
Mr Shoebridge says this bill “sets the wheels in motion for Parliament to act to bring about a just outcome.”
The NSW government was asked to deliver its response to the parliamentary inquiry’s report by May 6 but due to the caretaker period triggered by he NSW elections it was delayed.
Attorney-General Gabrielle Upton recently sent a letter to Members of Parliament announcing that the NSW government would deliver a response shortly after. But Ms Upton did not say when this would occur, or when a date would be set.
New Matilda was waiting on comment from Ms Upton’s office today about when that response would be delivered, and whether the NSW government would support the Greens’ bill.
Ms Upton met with members of the Bowraville families earlier this month, which reportedly went smoothly, according to representatives.
Mr Shoebridge congratulated Ms Upton for meeting with the victims’ families so early on in her term but said it was time for concrete legislative change.
“Given Parliament’s emotional commitment last year when the Bowraville report was tabled, we hope that every political party can get behind this reform and put into law our collective promises of last year,” Mr Shoebridge said.
“Whether the Bill is supported through Parliament as a Greens Bill or the Government adopts the measure as one of its own measures when Parliament resumes, this is a reform that has been a quarter of a century in the making.”