26 March 2019
The High Court of Australia has refused to hear an appeal from the NSW Attorney-General in relation to trying the man suspected of murdering three Aboriginal children in Bowraville. The saga of the Bowraville murders has lasted for almost 30 years, beginning with the deaths of the children over a period of five months from 1990 to 1991. The disappearances were originally treated with minimal concern by the police, who suggested the children had gone “walkabout”. The police failure to gather evidence in the crucial early period doomed the attempt to gain justice for the children. In 1994, a man was tried for the murder of one of the children, Clinton Speedy-Duroux. He was acquitted.
According to Professor Larissa Behrendt, the police began to rebuild their credibility with the local Aboriginal community by appointing detective inspector Gary Jubelin to investigate the case. He gathered new evidence to try the same suspect, and presented it before a coronial inquest in 2004. It was regarded as compelling, and this led to a new trial of the suspect, this time for the murder of one of the other children, Evelyn Greenup. Once again, the man was acquitted. The prosecution argued for admitting the new evidence in relation to the deaths of the other children, but this submission was rejected.
This was due in part to the rule against double jeopardy. If a person is tried for a crime, they cannot be tried for the same crime again. This is an important civil liberty, which protects people from the power and resources of the state being used to repeatedly prosecute someone. Vulnerable and over-incarcerated communities, particularly Aboriginal people, particularly benefit from this principle.
Under the double jeopardy rule, evidence relating to Clinton’s murder could not be admitted, and the murder cases could not be heard together. In 2006, the law was reformed to allow for an exception to the double jeopardy rule, where there is “fresh” and “compelling” evidence. However, whilst the new evidence may have been compelling, the NSW Court of Criminal Appeal ruled that it was not fresh. Whilst it had not been admitted for the jury’s consideration, it had technically been “adduced”. The court refusing to admit it into evidence meant that it was no longer fresh.
On Friday 22 March, the High Court dismissed the application for special leave to appeal the Court of Criminal Appeal’s judgment. Justices Kiefel, Bell and Gageler ruled that the evidence in question could not be considered “fresh”. Greens MLC David Shoebridge responded to the judgment by stating that he intended to bring a bill to reform the laws as soon as parliament resumes. Due to the rebuff by the High Court, this seems the only prospect for retrying the man suspected of murdering the three Aboriginal children from Bowraville.
Michael Brull
Policy Lawyer
NSW Council for Civil Liberties
