Speaker 1: Just before nine o'clock last night, the jury returned guilty
Speaker 1: verdicts against all three defendants.
Speaker 2: It was absolutely shambles, to tell you the truth, just
Speaker 2: absolutely really heaving.
Speaker 1: Blood on his clothing. The day after the alleged A top.
Speaker 3: On a show a mud bank and it fits through
Speaker 3: a river.
Speaker 2: Basically, I think most of the people are used to me,
Speaker 2: there are good people.
Speaker 3: I think a really important question we need to ask
Speaker 3: is how many Indigenous prisoners in Australia are innocent.
Speaker 1: This is Curtain, a podcast where we pull back the
Speaker 1: blinds to shine a light on the darkest parts of
Speaker 1: our justice system and ask who are the victims. I'm
Speaker 1: Amy Maguire and I'm.
Speaker 3: Martin Hodgson, a senior advocate for the Foreign Prisoner Support Service.
Speaker 3: And a warning. This series contains the names of deceased
Speaker 3: peoples and has distressing content that might upset some listeners.
Speaker 2: Welcome to Curtain the podcast. We've discussed Araville case many
Speaker 2: times on the PODCAS cast. Before that was the murder
Speaker 2: of three Aboriginal children in Bauerville between nineteen ninety and
Speaker 2: Nought for Justice against terrible police investigations trading trials that
Speaker 2: have led to nowhere against all levels of society and
Speaker 2: the Parliament of New South Wales. Yesterday the New South
Speaker 2: Wales Court of Criminal Appeal refused an application by the
Speaker 2: New South Wales Attorney General to retry the person that
Speaker 2: even the peace suspect of killing all three children. Obviously,
Speaker 2: this is a devastating blow to the family. Once again
Speaker 2: they've been denied their day in court where they could
Speaker 2: seek justice for their children. Amy, You've been following this
Speaker 2: case for a long time, have spoken with the families
Speaker 2: a lot over the years. What was your reaction to yesterday.
Speaker 1: My reaction was genuine, largely because I think that surely
Speaker 1: the families deserved a good outcome, and that outcome would
Speaker 1: have been to send this kiss back to trial, because
Speaker 1: that's all what they've ever wanted, ever since two thousand
Speaker 1: and six when they originally had the victory of the
Speaker 1: overturn of the double jeopardy principle in New South Wales.
Speaker 1: So it felt shocking because for me, just witnessing how
Speaker 1: hard they have struggled and just the impact of these
Speaker 1: murders on not just immediate family, but extended family and
Speaker 1: extended communities over the past twenty seven years. I just thought,
Speaker 1: surely something has to happen, and unfortunately, I think we
Speaker 1: saw the real being and anger come out. So the
Speaker 1: family's always, you know, it's almost been like one step
Speaker 1: forward and two steps back, because every wind they've had,
Speaker 1: there's always been a step back, and it's always been
Speaker 1: accompanied by really offensive guessed by those in power, and
Speaker 1: it's always been just accompanied with feeling that Australia doesn't
Speaker 1: really care and those who are ultimately responsible for this
Speaker 1: enduring injustice, which is the justice system the original police
Speaker 1: investigation just don't seem to care. That just all builds up.
Speaker 1: So it was just a real let down, a real
Speaker 1: disappointment to hear that decision because it really felt, you know,
Speaker 1: things were actually going to fall place for the Bearable
Speaker 1: families finally after a long time. And I've been covering
Speaker 1: this case for about six years and so I've been
Speaker 1: up to Variable a few times. I've been at the
Speaker 1: majority of protests and the parliamentary inquiry and various processes
Speaker 1: as this saga has continued. And yeah, it was just
Speaker 1: a real disappointment and I just really feel for the Faise,
Speaker 1: you know, who've waited so long just to be let
Speaker 1: down again and to feel like this may have been
Speaker 1: last shot at justice, But I know that the families
Speaker 1: will never give up and there'll always be avenues that
Speaker 1: they're going to push through. Giving up was never a
Speaker 1: question for them, So it's about what the strategy is next.
Speaker 1: I think so. I think they still hope. But at
Speaker 1: the same time, this is a real blow to a
Speaker 1: lot of the families. I think Martin, there hasn't been
Speaker 1: a lot of detail about actually what the judgment in
Speaker 1: the Court of Criminal Appeal means. And it's already a
Speaker 1: very complicated case. But you've read judgment and you've been
Speaker 1: able to process it. Can you give us, first just
Speaker 1: a brief summary about why the Court of Criminal Appeal
Speaker 1: has noted the Attorney General's at put back.
Speaker 2: Yeah. I think firstly, the thing to I want to
Speaker 2: acknowledge is that this case would never have got to
Speaker 2: the Court of Criminal Appeal it wasn't for the families.
Speaker 2: I don't think it would have got to a parliamentary inquiry.
Speaker 2: If it wasn't for the families, there wouldn't have been
Speaker 2: a second police investigation. And something that's quite unique to
Speaker 2: this case is that it's been reliant on the families
Speaker 2: to push for justice this entire time, and they've really
Speaker 2: achieved something remarkable to get it this far. The fact is,
Speaker 2: what the Court of Criminal Appeal was deciding was the
Speaker 2: concept of double jeopardy, and in doing so, the family
Speaker 2: has pushed so hard to the point that the criminal
Speaker 2: justice system in New South Wales and in Australia has
Speaker 2: been forced for really one of the first times, to
Speaker 2: elect on this principle of double jeopardy and sudden underpinning
Speaker 2: of our system. And it's important to understand what double
Speaker 2: jeopardy is. So the person police believe committed all three
Speaker 2: murders been put on trial twice individually for two of
Speaker 2: the separate cases, so once for Evelyn and once for Clinton,
Speaker 2: and they were separated by twelve years in nineteen ninety
Speaker 2: four the first trial and less than six And what
Speaker 2: the jeopardy basically says is that once a person has
Speaker 2: been acquitted of an offense, that they are protected by
Speaker 2: the principle of double jeppy and can't be tried again.
Speaker 2: But what this doesn't take into consideration, of course, is
Speaker 2: that huge mistakes are made and that as we know
Speaker 2: with Aboriginal people in particular, and we know from this
Speaker 2: case that when these children had been murdered, the police
Speaker 2: treated it as a missing person's case in each situation,
Speaker 2: and so the proper investigative work that should lead to
Speaker 2: a murder conviction was never done. In addition to that,
Speaker 2: at both trials, fundamental evidence that would have helped secure
Speaker 2: a can viction was not either tended to the court
Speaker 2: orred by the jury. So that's why this person, or
Speaker 2: at least one reason why this person, who is suspected
Speaker 2: by the police to have committed all the crimes, was acquitted.
Speaker 2: So the important point that family has always maintained is
Speaker 2: that there needs to be justice, so that this fundamental
Speaker 2: principle of double jeopardy is fine ordinarily, but where justice
Speaker 2: has not been done, where the evidence exists, and where
Speaker 2: there has been failures of the system, that there needs
Speaker 2: to be a review. And this is essentially what the
Speaker 2: Court of Criminal Appeal was doing, was looking at in
Speaker 2: the pursuit of justice, was there the possibility to retry
Speaker 2: this person. And it boiled down to one particular issue,
Speaker 2: which is that was the evidence available at the time
Speaker 2: of these trials, in particular one of the trials, So
Speaker 2: was the evidence that would be presented at a new
Speaker 2: trial to be considered fresh and compelling. Now, what the
Speaker 2: judgment basically says in Layman's terms is that the evidence
Speaker 2: wasn't fresh and compelling, and the restate that is because
Speaker 2: the evidence was seen by the court. But the important
Speaker 2: point is it was not seen by the jury. Some
Speaker 2: of this evidence that is relevant was deemed inadmissible. And
Speaker 2: what was required for this process to be successful is
Speaker 2: for the court to be able to make a ruling
Speaker 2: that evidence that had previously been deemed inadmissible that would
Speaker 2: lead to either ensuring justice or the pursuit of justice,
Speaker 2: i e. That this was evidence that would show a
Speaker 2: person responsible further linked to a crime. It wasn't a
Speaker 2: fishing expedition. This was accurate evidence, but that if that
Speaker 2: had been deemed inadmissible in the past some decades ago,
Speaker 2: that if a law had changed that would now see
Speaker 2: thatce be admissible and allowed in that that should now
Speaker 2: be deemed fresh evidence. But the reason why I believe
Speaker 2: the Court of Criminal Appeal has refused the application re
Speaker 2: trial is not because the evidence isn't fresh. It's not
Speaker 2: because it's not compelling. It's that because the New South
Speaker 2: was parliament after the parliamentary inquiry just two years ago
Speaker 2: failed to make this change that would see and demand
Speaker 2: that the jury see the evidence that not be purely
Speaker 2: at the discretion of judge some twenty years ago, and
Speaker 2: that we maintain judges ruling all the way through. Because
Speaker 2: what makes fresh and compelling evidence is what's presented to
Speaker 2: a jury. It's no use if a judge sees it
Speaker 2: and turns it away. As we know from Kevin Henry's case,
Speaker 2: there was evidence that was never printed. There was his
Speaker 2: forced confession where only certain ass jury as ruled by judge.
Speaker 2: The important part about this case is that you have
Speaker 2: three separate murders, and all of the only two sorry
Speaker 2: how it individually. It's clear to just basic common sense
Speaker 2: that have murders of three children in the same location,
Speaker 2: committed in the same way, with the same prime suspect
Speaker 2: who the police themselves believed did it that the best
Speaker 2: chance of achieving justice is that all the evidence from
Speaker 2: all three crimes be presented. And that's never occurred. So
Speaker 2: what this was hoping that the Court of Criminal Appeal
Speaker 2: would allow a trial and that at least two of
Speaker 2: the case would be heard together, if not all three. Instead,
Speaker 2: I think the failure of the new South Wales government
Speaker 2: to legislate that the jury the court able to hear
Speaker 2: fresh evidence, evidence that was denied to be seen by
Speaker 2: a jury in the past, is the failing that has
Speaker 2: resulted in this knock now.
Speaker 1: Mardin it was there were draft a draft bill put
Speaker 1: forth by Greens and lay Dad Hubridge, who has been
Speaker 1: a key of the Families that he was hoping to
Speaker 1: present to Parliament before the Attorney General at the time,
Speaker 1: gabrielle Upton excited to send the application back to the
Speaker 1: Court of Criminal Criminal Appeal. So what would you say
Speaker 1: about the Attorney generals to that should it have been
Speaker 1: gone to the Niels Parliament first or how easy that
Speaker 1: the fact that the Attorney General has just sent straight
Speaker 1: away to the clarifying that legal definition, because that actually
Speaker 1: came up in the parliamentary inquiry into the family response
Speaker 1: to the murders, which went above and beyond its terms
Speaker 1: of reference and actually recommended clarifying exactly what you just said.
Speaker 1: How would you see that the fact that it did
Speaker 1: go to the Court of Criminal Appeal before there legislative chape.
Speaker 2: I think it's a really important point and it's the
Speaker 2: most important point out of all of what we've learned
Speaker 2: so far, which is that the family's call has always
Speaker 2: been that this person should be on trial for all
Speaker 2: three murders, and they're exactly right. And what the Parliamentary
Speaker 2: Inquiry foresaw was that if these legislative changes weren't made,
Speaker 2: then what happened yesterday, the rejection of an ability to
Speaker 2: retry this individual, was a high possibility. And I think,
Speaker 2: in particular David Ubridge and no doubt his staff, having
Speaker 2: studied other jurisdictions around the world, particularly in the United
Speaker 2: king other common law jurisdictions, that what the examples show
Speaker 2: elsewhere is that if you don't make these legislative changes,
Speaker 2: you really don't leave the court with the ability to
Speaker 2: make such a big finding. Because really the principle of
Speaker 2: double jeopardy is such a cornerstone of our legal system.
Speaker 2: So if you're going to ask a court to allow
Speaker 2: the principle to be not so much overturned in this case,
Speaker 2: but that another trial take place because of all the errors,
Speaker 2: because of fresh and compelling evidence, and because of the
Speaker 2: community's desire amand for justice, and the courts and the
Speaker 2: Parliament should be representing all of us as a community,
Speaker 2: then these changes needed to take place. I think what's
Speaker 2: clear is a few things. One, the legal community in
Speaker 2: Australia has always campaigned behind claud against changes to things
Speaker 2: like double jeopardy. There is quite a conservative element inside
Speaker 2: the legal community in Australia, but in most countries where
Speaker 2: they don't want to see law changed, they particularly don't
Speaker 2: want to see these principles like double jeopardy changed, and
Speaker 2: I think that plant to the Attorney General's decision. I
Speaker 2: also think that it was a very deliberate decision not
Speaker 2: to make these changes, these lisilative changes, because it would
Speaker 2: have taken a little bit of time to go changes
Speaker 2: for all sides of politics in the New South Wales
Speaker 2: Parliament to have their input, to seek advice from experts
Speaker 2: on what the ramifications might be. But these changes needed
Speaker 2: to be made, and if it took a little bit
Speaker 2: of time to get it right and worth getting it right.
Speaker 2: The family has come this far twenty seven years, they
Speaker 2: are owed the Parliament takes that time. Instead, the Attorney
Speaker 2: General rushed to the Court of Kriminal Appeal and I
Speaker 2: think that was largely done because of the public attention
Speaker 2: that had been drawn to the case through a podcast.
Speaker 2: I think anytime the mainstream media picks us with it
Speaker 2: for a small period of time, politicians feel the need
Speaker 2: to act, and by acting quickly, they don't always make
Speaker 2: the best decisions. Often their action is done simply to
Speaker 2: get the heat off their own back that's been caused
Speaker 2: by these issues being raised. Really, what needed to take
Speaker 2: place is for what was raised by David Shubridge at
Speaker 2: the time, what was recommended by the Parliamentary that did
Speaker 2: go above and beyond that across party lines, the individuals
Speaker 2: involved resaw what had happened here, that the families had
Speaker 2: been failed at every turn, that they'd done anything and everything.
Speaker 2: You could ask a family who have suffered such horrific loss,
Speaker 2: the death and murder of their children, they'd done everything,
Speaker 2: and yet the system, the police, are courts, the DPP,
Speaker 2: the attorney and the Parliament had failed them. This was
Speaker 2: the chance, after the parliamentary inquiry right to take the
Speaker 2: time to ensure that before this everything was done right
Speaker 2: and the legislation the judges at the Court of Criminal
Speaker 2: Appeal to make a ruling to allow a retrial herders
Speaker 2: could be retried. This is much as much a legal
Speaker 2: failure and a police failure. So I really think people
Speaker 2: need to start thinking about who they vote for. Who
Speaker 2: is going to take the tough decisions, not just the
Speaker 2: easy decisions when the mainstream media comes calling, Who's going
Speaker 2: to have the guts to say, I'm not going to rush.
Speaker 2: I'm going to get it right because that's what these
Speaker 2: kids deserve and that's what the families deserve. But we've
Speaker 2: seen a rush once again, and it means it leaves
Speaker 2: the families in limbo again after twenty seven years. It's
Speaker 2: completely unacceptable.
Speaker 1: I just wanted to talk and ask you a little
Speaker 1: bit about the fact, you know, this has been on.
Speaker 1: We're all murdered within five each other, on the same
Speaker 1: stretch of barable mission, and yet it has been very
Speaker 1: hard for the families to get any media attention. The
Speaker 1: original police investigation was originally sent in to investigate the
Speaker 1: community themselves. It was a child protection investigation, and the
Speaker 1: original police investigating it made crucial mistakes that you know,
Speaker 1: as you said before, other reason why it has been
Speaker 1: so hard to get the man accused before court yet again.
Speaker 1: So you know, I was really disheartened this week to
Speaker 1: see that although there was greater coverage about it, the
Speaker 1: wider Australia just still sees Aboriginal children as disposable, and
Speaker 1: we saw that over in Perth of the two young
Speaker 1: Aboriginal boys who lost their life in the Swan River
Speaker 1: as well after being chased by police. I think the
Speaker 1: wider issue as well as the way Aboriginal children are
Speaker 1: being seen, because to me, the idea that an alleged
Speaker 1: serial killer has not been brought before court yet again
Speaker 1: after twenty seven years is really disturbing and I don't
Speaker 1: think that would happen anywhere else. If you compare to Caitler,
Speaker 1: there were three white children who'd allegedly been killed by
Speaker 1: one mare, you just wouldn't have that. There'd be a
Speaker 1: community outcry that would last more than just one day
Speaker 1: and more than just a couple of media articles. So
Speaker 1: I think it's that wider issue as well the courts
Speaker 1: have handled it and the way Parliament or the Attorney
Speaker 1: General has handled it, but also the facts that Australia
Speaker 1: still largely closes it seas in its eyes and devalues
Speaker 1: Aboriginal children is really sad because we've seen, you know,
Speaker 1: particularly with legislative changes. You know, you look at the
Speaker 1: lockout laws and you look at all of the king
Speaker 1: hits in the middle of inner city Sydney, and that
Speaker 1: leads to legislative change which actually affects Aboriginal kids disproportionately
Speaker 1: in regional communities. So we see that legislative change can
Speaker 1: actually happen, but not when it comes to Aboriginal kids
Speaker 1: and Aboriginal victims.
Speaker 2: Yeah, I think sadly this week, the loss of the
Speaker 2: life of two young Aboriginal boys in Western Australia highlights
Speaker 2: everything that has gone wrong with this case and highlights
Speaker 2: the reason why four hundred Aboriginal people have died in
Speaker 2: custody in the last twenty five years and yet no
Speaker 2: one has been charged and convicted. I think the reporting
Speaker 2: of the way the boys died also highlights the way
Speaker 2: the mainstream media and the general public view these cases
Speaker 2: and these incidents. These were children in Western Australia, like
Speaker 2: the children of Baarraville, and yet the police claim that
Speaker 2: they were jumping fences. No one in the media bothered
Speaker 2: to check if that was true. They just took the
Speaker 2: police's word for what the boys had done. And this
Speaker 2: was the worst that the police could come up with,
Speaker 2: that these boys had jumped fences. We don't kill people
Speaker 2: for jumping fences. And yet so far I've heard nothing
Speaker 2: from the West Australian government or the public that he's
Speaker 2: going to seek to hold the police to account. Once again,
Speaker 2: it's the Aboriginal community and their families mourning a loss
Speaker 2: and being forced to carry the load of trying to
Speaker 2: get justice. When you look at the cases of all
Speaker 2: three Bauerville children, as you say, their deaths occurred across
Speaker 2: a five month period of time. Initially, the first few
Speaker 2: first cases were handled as they were missing persons, as
Speaker 2: you said, community themselves were investigated. How did the police
Speaker 2: come to the conclusion before they'd done any serious investigation
Speaker 2: that it was a missing person's case. They came that
Speaker 2: conclusion because they have a preconceived notion of Aboriginal people.
Speaker 2: When they walk into Bauerville with that preconceived notion, they
Speaker 2: ensured that the likelihood of the families ever getting justice
Speaker 2: would be nil, and the likelihood that this individual could
Speaker 2: kill again would be near on one hundred percent. You
Speaker 2: have to go into an engation with an open mind.
Speaker 2: All the evidence should have been collected. When you're talking
Speaker 2: about the murder of children. No stone should be left unturned.
Speaker 2: If this was three children in the suburbs of Sydney,
Speaker 2: there would be marches on the street. And yet the
Speaker 2: attention is focused on the very families that had lost
Speaker 2: their little kids and the pressure was put on them,
Speaker 2: they weren't believed and the police continued to cock this up.
Speaker 2: There is a great likelihood that there is evidence that
Speaker 2: is yet to be discovered, that there is evidences that
Speaker 2: existed at the time that would have made these cases
Speaker 2: an absolute slam dunk that was never uncovered by the
Speaker 2: police because they were too busy focusing on the families.
Speaker 2: Focusing on this being missing persons and Aboriginal children going
Speaker 2: walk about their preconceived ideas and racist views of Aboriginal
Speaker 2: people cost justice, but it also cost future lives because
Speaker 2: these didn't happen all on the same night detailings. These
Speaker 2: were done over a period of time. A brazen serial
Speaker 2: killer of children has to be the greatest threat that
Speaker 2: our society and our community faces. Who would deny that
Speaker 2: what we must protect most is the safety of our children,
Speaker 2: of all children in our community right around Australia. And
Speaker 2: yet the very people we pay our tax dollars that
Speaker 2: we go to work for the police to protect us
Speaker 2: from these people. Failed the Beauerville families and have failed
Speaker 2: in Western Australia to the point that more young Aboriginal
Speaker 2: people are dead. It's the complete opposite of the way
Speaker 2: the system is supposed to work. They are supposed to protect,
Speaker 2: not kill. And yet, as you say, where is the outrage,
Speaker 2: we have pockets of coverage whenever there is a parliamentary inquiry,
Speaker 2: when the families hold a protest, maybe some media in
Speaker 2: the mainstream media will turn up. If we're going to
Speaker 2: stop the killing of Aboriginal children, if we're going to
Speaker 2: stop the killing of Aboriginal people in custody, the blatant
Speaker 2: murder of some like young Elijah in Western Australia who
Speaker 2: can be run down and the killer walking free today,
Speaker 2: then the rest of society has wake up and ask
Speaker 2: themselves this one question. Would they accept the same if
Speaker 2: it was their children? If you would, there's something deeply
Speaker 2: wrong with you If you wouldn't, Why do you allow
Speaker 2: it for Aboriginal children. Why are Aboriginal children's lives disposable?
Speaker 2: Why are abige others forced to mourn their children without justice,
Speaker 2: and not only that treated in the first place, as
Speaker 2: if they could be suspects. This will only change when
Speaker 2: the broader public stops thinking the owners should be on
Speaker 2: Aboriginal people, starts taking responsibility for the police, a justice
Speaker 2: and political system, and a public that is indifferent to
Speaker 2: the killing and the violence against Aboriginal people.
Speaker 1: If you want to support the Oval families in their
Speaker 1: continued quest for justice, there will be a protest on
Speaker 1: Thursday Thursday, the twentieth September at ten a m outside
Speaker 1: Parliament House in New South Wales on Macquarie Street. That
Speaker 1: was episode fifty nine of Curtain