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Bowraville murders: We need policing free of racism, not new double jeopardy laws The murders of three Aboriginal children continue to haunt the legal system 25 years after the fact
(about 3 hours later)
The frustratingly slow grind of the law can be illustrated in no better instance than the case of the Bowraville murders.The frustratingly slow grind of the law can be illustrated in no better instance than the case of the Bowraville murders.
There have been two trials, both resulting in the acquittal of the accused, various applications for retrials, three coronial inquiries, along with various legislative changes and parliamentary inquiries. Still there’s no outcome that might give a sense of justice to the community and families of three children from the Bowraville Aboriginal Mission in the hinterland of the mid-north coast of NSW, who disappeared presumed murdered 25 years ago.There have been two trials, both resulting in the acquittal of the accused, various applications for retrials, three coronial inquiries, along with various legislative changes and parliamentary inquiries. Still there’s no outcome that might give a sense of justice to the community and families of three children from the Bowraville Aboriginal Mission in the hinterland of the mid-north coast of NSW, who disappeared presumed murdered 25 years ago.
Related: NSW to review double jeopardy laws over Bowraville child murdersRelated: NSW to review double jeopardy laws over Bowraville child murders
In February 1991 the remains of Clinton Speedy-Dutroux, aged 16, were found in bushland. In April that year clothing was discovered belonging to Colleen Walker-Craig, also 16, and a week later the skeletal remains of Evelyn Greenup, 4-years old, were found in the bush. The police investigation was found to be flawed and tainted by racism. The justice system was saddled with old rules about similar fact evidence and double jeopardy. There have been amendments to the law, yet important legal issues remain unresolved.In February 1991 the remains of Clinton Speedy-Dutroux, aged 16, were found in bushland. In April that year clothing was discovered belonging to Colleen Walker-Craig, also 16, and a week later the skeletal remains of Evelyn Greenup, 4-years old, were found in the bush. The police investigation was found to be flawed and tainted by racism. The justice system was saddled with old rules about similar fact evidence and double jeopardy. There have been amendments to the law, yet important legal issues remain unresolved.
The NSW government has appointed former supreme court judge and police royal commissioner James Wood to try and find a way through the thicket.The NSW government has appointed former supreme court judge and police royal commissioner James Wood to try and find a way through the thicket.
His job will be to focus on the law relating to double jeopardy, which is the old legal principle that a man or woman cannot be tried again after being properly acquitted on the same or similar charge.His job will be to focus on the law relating to double jeopardy, which is the old legal principle that a man or woman cannot be tried again after being properly acquitted on the same or similar charge.
A 2004 coronial inquest into the deaths of Evelyn and Colleen noted that the circumstances surrounding all three deaths had strikingly similar characteristics and coincidences.A 2004 coronial inquest into the deaths of Evelyn and Colleen noted that the circumstances surrounding all three deaths had strikingly similar characteristics and coincidences.
Partly in response to the Bowraville case, and following changes to the law in England, the NSW parliament in 2006 passed amendments to the Crimes (Appeal and Review) Act allowing for the retrial of an acquitted person where, in serious cases, there is “fresh and compelling” evidence that had not been “adduced” in the proceedings which saw the accused acquitted.Partly in response to the Bowraville case, and following changes to the law in England, the NSW parliament in 2006 passed amendments to the Crimes (Appeal and Review) Act allowing for the retrial of an acquitted person where, in serious cases, there is “fresh and compelling” evidence that had not been “adduced” in the proceedings which saw the accused acquitted.
“Adduced” is the sticking point. Does it mean evidence that previously existed but was not admitted at the previous trial or is the requirement for completely new evidence?“Adduced” is the sticking point. Does it mean evidence that previously existed but was not admitted at the previous trial or is the requirement for completely new evidence?
To appreciate what is at stake we have to track back to amendments to the NSW Evidence Act in 1995, following the collapse of the cases against Jay Thomas Hart on charges of murdering Clinton Speedy-Dutroux and Evelyn Greenup.To appreciate what is at stake we have to track back to amendments to the NSW Evidence Act in 1995, following the collapse of the cases against Jay Thomas Hart on charges of murdering Clinton Speedy-Dutroux and Evelyn Greenup.
In 1993 the DPP sought to prosecute Hart in a single trial for the murders of both Clinton and Evelyn. At the pre-trial stage Justice Jeremy Badgery-Parker separated the indictments and consequently there were to be two trials and any “similar fact” evidence demonstrating common features between the two deaths became inadmissible.In 1993 the DPP sought to prosecute Hart in a single trial for the murders of both Clinton and Evelyn. At the pre-trial stage Justice Jeremy Badgery-Parker separated the indictments and consequently there were to be two trials and any “similar fact” evidence demonstrating common features between the two deaths became inadmissible.
The trial relating to Clinton’s death was conducted without any reference to the deaths of the other two children and in 1994 the accused was acquitted of the murder of Clinton. The DPP then withdrew the charge against Hart for Evelyn’s death.The trial relating to Clinton’s death was conducted without any reference to the deaths of the other two children and in 1994 the accused was acquitted of the murder of Clinton. The DPP then withdrew the charge against Hart for Evelyn’s death.
The following year the Evidence Act was amended, changing the test for “similar fact” evidence, and allowing in more material relating to “tendency and coincidence”.The following year the Evidence Act was amended, changing the test for “similar fact” evidence, and allowing in more material relating to “tendency and coincidence”.
It meant that the sort of evidence that was inadmissible at the trial relating to Clinton’s death would now be admissible in future trials.It meant that the sort of evidence that was inadmissible at the trial relating to Clinton’s death would now be admissible in future trials.
In May 2005, after a report from a police strike force, the DPP indicted Hart for Evelyn’s murder. While the rules relating to tendency and coincidence were wider, evidence about Clinton’s murder did not get in because of the rule against double jeopardy.In May 2005, after a report from a police strike force, the DPP indicted Hart for Evelyn’s murder. While the rules relating to tendency and coincidence were wider, evidence about Clinton’s murder did not get in because of the rule against double jeopardy.
Hart was acquitted, again, in 2006.Hart was acquitted, again, in 2006.
It was then that NSW moved to amend the law relating to double jeopardy and, after a Coag agreement, the other states followed suit.It was then that NSW moved to amend the law relating to double jeopardy and, after a Coag agreement, the other states followed suit.
The legislative changes resulted in applications to the DPP for a retrial, which DPP Nicholas Cowdery rejected because he did not believe the evidence was “fresh and compelling”.The legislative changes resulted in applications to the DPP for a retrial, which DPP Nicholas Cowdery rejected because he did not believe the evidence was “fresh and compelling”.
Large city law firm Allens helped the families of the dead children pro bono, and there were unsuccessful submissions to former attorneys generals to reopen the case.Large city law firm Allens helped the families of the dead children pro bono, and there were unsuccessful submissions to former attorneys generals to reopen the case.
Allens’ contention was that the evidence as to tendency and coincidence relating to the three deaths that was not admitted at the previous trials could now be regarded as “fresh” at any future trial.Allens’ contention was that the evidence as to tendency and coincidence relating to the three deaths that was not admitted at the previous trials could now be regarded as “fresh” at any future trial.
The DPP disagreed with this interpretation of the double jeopardy amendments. A report from the NSW Legislative Council’s standing committee on law and justice last year found that the act is unclear and should again be amended so as to broaden the definition of “adduced”.The DPP disagreed with this interpretation of the double jeopardy amendments. A report from the NSW Legislative Council’s standing committee on law and justice last year found that the act is unclear and should again be amended so as to broaden the definition of “adduced”.
Last month, Greens MLC David Shoebridge introduced his own bill so as to extend an exception to the rule against double jeopardy in relation to someone who had been acquitted where previously inadmissible evidence becomes admissible.Last month, Greens MLC David Shoebridge introduced his own bill so as to extend an exception to the rule against double jeopardy in relation to someone who had been acquitted where previously inadmissible evidence becomes admissible.
Related: Change in double jeopardy law led to Gary Dobson's retrial | Joshua RozenbergRelated: Change in double jeopardy law led to Gary Dobson's retrial | Joshua Rozenberg
In a sense, we don’t need another review of the law relating to double jeopardy. The immediate difficulty about the interpretation of the legislation could be resolved if Shoebridge’s amendment was passed.In a sense, we don’t need another review of the law relating to double jeopardy. The immediate difficulty about the interpretation of the legislation could be resolved if Shoebridge’s amendment was passed.
The most recent parliamentary committee report found serious shortcomings in the original police investigation. Variously, the police had told the parents of the victims that their children had gone “walkabout” or that, in Colleen’s case, her mother and grandmother “had sold her”.The most recent parliamentary committee report found serious shortcomings in the original police investigation. Variously, the police had told the parents of the victims that their children had gone “walkabout” or that, in Colleen’s case, her mother and grandmother “had sold her”.
Police also allowed the removal of barbells from the caravan of a suspect, and forensic examination later suggested they may have been used as a weapon to kill Clinton. There was also a failure to pass on circumstantial evidence to the prosecutors, including the sighting of a man by the side of the road standing over an Aboriginal boy who matched Clinton’s description.Police also allowed the removal of barbells from the caravan of a suspect, and forensic examination later suggested they may have been used as a weapon to kill Clinton. There was also a failure to pass on circumstantial evidence to the prosecutors, including the sighting of a man by the side of the road standing over an Aboriginal boy who matched Clinton’s description.
In a statement to the parliamentary committee, the strike force officer, detective inspector Gary Jubelin, who was later brought in to investigate said:In a statement to the parliamentary committee, the strike force officer, detective inspector Gary Jubelin, who was later brought in to investigate said:
The families told me right from the start in 1997 that people did not care because they are Aboriginal. I naively thought they were wrong, but I 100% support what they say.The families told me right from the start in 1997 that people did not care because they are Aboriginal. I naively thought they were wrong, but I 100% support what they say.