Originally published by New Matilda on May 1, 2015 Aboriginal Affairs
There is a glimmer of hope still shining through the injustice that has clouded the families of three Aboriginal children murdered on Bowraville mission nearly 25 years ago.
A report released by Greens NSW today recommends proposed changes to the double jeopardy laws which were overturned in 2006 with the families in mind, which would clarify the meaning of ‘adduced’ allowing ‘fresh and compelling’ evidence to be sent back to the Court of Criminal Appeal.
The draft bill will be introduced to state Parliament next week.
Between 1990 and 1991 three Aboriginal children – Colleen Walker, 16, Evelyn Greenup 4, and Clinton Speedy Duroux, 16 – were murdered on the same stretch of street that runs through Bowraville mission. There has only been one person accused of the crimes – a non-Indigenous man who hung around the mission at the time.
The original police investigation into the deaths involved severe bungles, including the fact key evidence was given back to the accused, and was influenced by the racism that hung around the mission at the time.
The accused was acquitted of Clinton and Evelyn’s murders, but the families have always maintained that the three cases should have been linked in one trial, due to the striking similarities between them. The murders of Colleen and Evelyn were not brought up in Clinton’s trial.
Independent legal opinion in 2008 agreed there would be a reasonable prospect of conviction if this occurred, based on evidence gathered by a second homicide investigation, headed by Detective Inspector Gary Jubelin.
However, the families’ application, with new ‘fresh and compelling evidence’ was knocked back by two separate state Attorneys-General due to the definition of the word ‘adduced’ or ‘admitted’, which is currently untested in NSW courts.
Muriel Craig, the mother of Colleen Walker.
The former state Attorney-General Greg Smith said that if the application was knocked back at the Court of Criminal Appeal, it would completely remove any legal avenue for the families to pursue prosecution if new evidence relating to Colleen’s murder emerged.
The application included a key witness statement from a truck driver who saw a man who looked like the accused standing over the body of an Aboriginal boy who looked like Clinton Speedy Duroux at Norco Corner.
That statement was tendered in one trial, but later ruled inadmissible in another. Mr Smith was concerned about the definition of the word ‘adduced’ and whether the evidence had been previously admitted.
The knock-backs prompted a parliamentary inquiry into the family responses to the murders, following a heartfelt rally on Macquarie St which stopped traffic.
The inquiry handed down its report in an emotional day in state parliament in November. The unanimous report made a number of recommendations, with two specifically designed to remove the hurdles that have prevented the families’ application being sent back to the Court of Criminal Appeal.
One of these hurdles is for the NSW government to review section 102 of the Crimes (Appeal and Review) Act 2001 to clarify the definition of ‘adduced’ or ‘admitted’, which has been labelled an ‘artificial hurdle’ towards sending the evidence back before the court.
After five months of waiting, and no response from the government, the Greens MLC David Shoebridge released a draft bill seeking to implement the recommendation of the committee.
It follows a period of consultation attracting nine formal submissions, with only two – the NSW Law Society and the NSW Public Defenders, arguing against the bill.
The report says there are two legal interpretations of the word ‘adduced’.
“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.”
The report says in order to “address this uncertainty” the draft bill proposes a “straightforward statement to the effect that the definition of ‘fresh’ evidence is satisfied if the laws of evidence are changed so that evidence which was previously inadmissible is now admissible.”
The Jumbunna School of Learning at the University of Technology Sydney is supportive of the draft bill, and said if this bill does not pass Parliament, the NSW government should propose another way for justice for the families of the three victims.
“We are concerned that should this Bill not pass the Parliament, in order to ensure that the families of the victims and the Bowraville community do not experience again the disappointment of a legal system unable to provide justice, some other pathway for the family to receive justice should be laid out for them by the NSW Parliament,” its submission says.
Mr Shoebridge says time is running out for justice for the families.
“25 years is too long to wait for justice and that is why we will be presenting this Bill to Parliament on its return next week,” Mr Shoebridge said.
“Given the 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 concrete action behind our collective promises of last year.
“We received invaluable feedback in the consultation over the draft Bill, and this has resulted in a more closely drafted and targeted law change.”
Earlier this week, the new state Attorney-General Gabrielle Upton met with the families for an hour, and promised to meet with Det Insp Gary Jubelin, as well as a number of others concerned with the case – including Aboriginal academic Larissa Behrendt.
Mr Shoebridge said Minister Upton should be commended for taking the step so early while in office.
“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.
“In all my dealings with the families their primary request is the same, they want justice for their lost children. This Bill takes their cause one step closer to reality,” Mr Shoebridge said.