An almost 20-year campaign by a group of Aboriginal families changed Australia's criminal justice system. But so far, it has failed to provide the justice they seek for the murder of three children. Oscar Shub and Brendan Ferguson write.
Late on Friday 29 October 2010, New South Wales Attorney-General John Hatzistergos announced what could be one of the most significant decisions in Australia's criminal law history. Twenty years after three Aboriginal children were murdered in the small mid-north coast town of Bowraville, the Attorney-General rejected a submission requesting that he retry a man acquitted of two of the murders and indict the same man for the third murder.
The Attorney-General's power to apply to the court for a retrial constitutes an exception to the 800-year-old principle of double jeopardy. That exception was introduced by the NSW legislature in December 2006, following a lengthy campaign waged by the families of the Bowraville murder victims.
Sixteen-year-old Colleen Walker disappeared in September 1990 after a party at an Aboriginal housing estate in Bowraville known as "the Mission". Three weeks later, four-year-old Evelyn Greenup was kidnapped from the bedroom in which she was sleeping with her mother and two brothers, three doors from the house at which Colleen Walker was last seen.
Following another party at the Mission in January 1991, 16-year-old Clinton Speedy disappeared from a local man's caravan, where he and his girlfriend were sleeping. Clinton Speedy's body was found two weeks later, dumped alongside a bush track, seven kilometres from Bowraville. A blanket and pillow slip from the caravan were found with Clinton's body. Evelyn Greenup's body was found off the same dirt track, three kilometres closer to town. No attempt was made to conceal either body. Both appeared to have suffered significant blows to the head.
Colleen Walker's body was never found, but her clothes were discovered by a fisherman, weighted down by rocks at the bottom of the Nambucca River in the vicinity of the same dirt track.
In April and October 1991, a local man was charged with the murders of Clinton Speedy and Evelyn Greenup respectively. There were significant similarities in the facts of the three murders which tied the accused to each of the victims. In each case, police identified an alleged sexual motive concerning either the victim or someone who was with the victim at the time of their disappearance.
However, in 1993, Justice Badgery-Parker decided that the trials for the two murders should be held separately. Accordingly, evidence of the murders of Colleen Walker and Evelyn Greenup was not admissible in the 1994 trial for the murder of Clinton Speedy. The accused was acquitted.
The man was eventually tried for the murder of Evelyn Greenup in 2006 following a coronial inquest, but again was acquitted. No charge has ever been laid in connection with Colleen Walker's death.
Detective Inspector Gary Jubelin has worked closely with the victims' families since a 1997 reinvestigation of the three murders. Jubelin recalls meeting with the families after the 2006 acquittal to discuss their options. He explained that, since the brief in relation to Colleen Walker's death was insufficient to warrant a charge, there was no other legal avenue to pursue a conviction of the accused man due to the principle of double jeopardy. The families' response was, "how do we get that changed?"
The Crimes (Appeal and Review) Act 2001 now provides for an acquitted person to be retried for a serious crime where there is "fresh and compelling evidence" and "it is in the interests of justice". In commending the 2006 Bill which introduced the double jeopardy exception, the leader of the National Party and Member for Oxley, Andrew Stoner, reflected on the Bowraville murders, stating that "the changes to the legislation ... give some hope to those families that justice may eventually be done".
Fourteen months ago, armed with the advice of Queen's Counsel, the Public Interest Law Clearing House requested that our firm draft submissions on a pro bono basis seeking the Attorney-General's intervention.
The families submitted that a court should, for the first time, have been presented with the evidence of all three murders together, because: since the 1993 decision to split the trials, the threshold for admissibility of similar fact evidence has been reduced with the introduction of the "tendency" and "coincidence" rules; evidence with respect to each of the murders would now be admissible under those rules in a trial for all three murders; if deemed admissible, that evidence would constitute "fresh" evidence as required and when viewed together, the evidence is "compelling" and it is "in the interests of justice" that a person suspected by police of killing three children over a five-month period, in similar circumstances, should be tried on the facts of those murders together.
At 4:30pm on the last Friday of October, eight months after the submissions were lodged with the Attorney-General's office, the families were informed that the matter would not be pursued. The Attorney-General expressed doubt as to the probative value of the evidence and was not satisfied that there were reasonable prospects of a conviction.
The Attorney-General's decision as to whether an application was warranted in this case was entirely discretionary. Nevertheless, this was an opportunity for the Attorney-General to test this important new legislation and allow a court to assess the significance of the evidence. It is an opportunity that this Attorney-General has passed up.
The families have since expressed their frustration at yet another setback. One fully appreciates that the Attorney-General's discretion should only be exercised in extraordinary circumstances, but the families argue that the circumstances of this case are extraordinary. The families were alarmed that Jubelin, who compiled the bulk of the relevant evidence during the 1997 reinvestigation, was not consulted as to the probative value of that evidence by either the DPP or the Attorney-General before their respective decisions to reject requests for a retrial.
Remarkably though, the families' resolve to continue in their pursuit of justice appears not to have waned. Our reading of the legislation is that the families would be entitled to submit an application in the future to the NSW Attorney-General.
For a group of families who have forever changed our justice system, that system has yet to provide the justice they have sought for 20 long years.
Oscar Shub is a partner and Brendan Ferguson a lawyer at Allens Arthur Robinson. They were both a part of the legal team that drafted the submission to the Attorney-General on behalf of the Bowraville families.