Speaker 1: Just before nine o'clock last night, the jury returns guilty
Speaker 1: verdicts against all three defendants. It was absolute shambles, to
Speaker 1: tell you the truth, just absolutely really.
Speaker 2: Comorant blood on his clothing the day after the alleged
Speaker 2: detemp on a shallow mud bank and the fitz Roy River. Basically,
Speaker 2: 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.
Speaker 2: I'm Amy Maguire.
Speaker 3: And I'm Martin Hodgson, a senior advocate for the Foreign
Speaker 3: Prisoner Support Service. Our producer is Paul Watts. Music by
Speaker 3: Clint Curtis and produced in collaboration with the Brisbane Indigenous
Speaker 3: Media Association. And a warning, this series contains the names
Speaker 3: of deceased peoples and has distressing content that might sid
Speaker 3: some listeners.
Speaker 1: We are now up to episode five in this podcast
Speaker 1: series and by now you might be forming your own
Speaker 1: opinion about the innocence of Kernin which is Kevin Henry's
Speaker 1: nickname Kevin Henry has been in jail for a quarter
Speaker 1: of a century over the murder of an Aboriginal woman
Speaker 1: named Linda, found on the banks of the Fitzroy River
Speaker 1: in September nine ninety one. We've told you a little
Speaker 1: bit about how we came to doubt Kevin's guilt. Those
Speaker 1: were based on historic title records which showed it was
Speaker 1: very unlikely that Kevin had placed Linda in the water
Speaker 1: where police alleged he did, which was on the south
Speaker 1: side of the river, the Tanuba House side.
Speaker 3: We found she was most likely placed in on the
Speaker 3: opposite side, on the racecourse side. If you've never been
Speaker 3: to rock Hampton in central Queensland, that would require about
Speaker 3: a five to ten minute drive over one of rock
Speaker 3: Hampton's two bridges. We also told you about how the
Speaker 3: police failed in following up other leads despite the need
Speaker 3: to go down every avenue of inquiry. Who told you
Speaker 3: a little bit about Linda's last day of how she
Speaker 3: most likely came into contact with the three women who
Speaker 3: brutally assaulted her that night the night before she was found,
Speaker 3: because she was found having sex with one of the men,
Speaker 3: Duckhart Duckhart.
Speaker 1: Was the man who later found Linda's clothes at Tanuba
Speaker 1: the next morning, before he would have known that she
Speaker 1: had been found on the banks of the river. For
Speaker 1: the past two weeks, we've also been telling you about
Speaker 1: Kevin's confession, the only thing that really ties him to
Speaker 1: Linda's death. There was never any DNA evidence tying Kevin
Speaker 1: to Linda. The only thing that stuck to him was
Speaker 1: that confession. And we brought you an expert in forced confessions,
Speaker 1: Pat McGuinness, whose legal work was the subject of the
Speaker 1: Academy Award winning documentary Murder on a Sunday morning.
Speaker 3: We raised a lot of concerns about Kevin's confession and
Speaker 3: particularly the police tactics used to extract information. Now we'll
Speaker 3: take you back again to the day that Kevin was
Speaker 3: picked up, because this day is important. It was September five,
Speaker 3: four days after Linda's body was found. Now, we told
Speaker 3: you that in the afternoon Kevin was picked up by
Speaker 3: police while walking on the street and taken to Rockhampton
Speaker 3: Police station.
Speaker 1: But earlier that morning, around six am, in fact, the
Speaker 1: woman who led the assault on Linda, Susan Aubrey, was
Speaker 1: also arrested by police. Her arrest was followed by the
Speaker 1: arrest of two other women that day, Margaret Bob and
Speaker 1: Amy Saunders. All three of the women were described in
Speaker 1: several witness statements and later admitted leading the assault on
Speaker 1: Linda that night. We've also told you that the assault
Speaker 1: was brutal, sustained and had the potential to be lethal.
Speaker 3: We're going to tell you a little bit more about
Speaker 3: that assault later in the series. But on this day,
Speaker 3: the police picked up Susan, Margaret, and Amy and charged
Speaker 3: them with murder. The man who recommended the three women
Speaker 3: be charged with murder was the highest ranked police officer
Speaker 3: in Rockhampton, Detective Inspector Kel Weeks. Remember that that's important now.
Speaker 3: Even though the police had already charged three women with murder,
Speaker 3: for some reason, the two arresting officers, Senior Constable Leslie
Speaker 3: Girk and Senior Constable Robert Hunt, picked up Kevin.
Speaker 1: They took him back to the Rock Campden police station
Speaker 1: that afternoon. So that day, those few hours on September fifth,
Speaker 1: before he was picked up, was the last time Kevin
Speaker 1: Henry was free in a quarter of a century. Because
Speaker 1: after that confession, he was charged with murder. Now, think
Speaker 1: about that four people charged with murder on the same day,
Speaker 1: two separate sets of circumstances.
Speaker 2: We'll talk about that later.
Speaker 3: Now, for the last two weeks, we've gone through Kevin's
Speaker 3: confession in detail. Remember, so how it ended. Here's Elijah Player,
Speaker 3: a young Aboriginal radio announcer from rock Hampton's radio station
Speaker 3: four US, playing the role of twenty two year old
Speaker 3: Kevin Henry.
Speaker 1: See that's it, man, I just told you everything.
Speaker 2: That's all the evidence.
Speaker 3: I've got nothing to say. No more. Now you can't
Speaker 3: ask me anymore because I've got nothing else to say.
Speaker 3: Kevin ended that interview and was very clear he had
Speaker 3: nothing more to say. Remember, he had no legal representation,
Speaker 3: he'd only been to year nine in school, and he
Speaker 3: was likely very confused about what was happening. But that
Speaker 3: interview didn't end there.
Speaker 1: Now, after Kevin refused to say anything else, Senior Constable
Speaker 1: Girk and Senior Constable Hunt took Kevin for a ride
Speaker 1: in the police car. They taped the conversation with him
Speaker 1: on that short trip. Now, they took Kevin down to
Speaker 1: Chanuba House and they videotaped him walking through the scene
Speaker 1: of the crime. Now, why didn't we include that fact
Speaker 1: in the last two episodes.
Speaker 3: Well because of this, this is the judge at Kevin
Speaker 3: Henry's trial. So after the initial formalities, the judge was
Speaker 3: quick to raise the issue of the confession. Now, let
Speaker 3: me read from the transcript. The judges remarks, this is
Speaker 3: what he said, mister Wright. The prosecutor has recognized that
Speaker 3: it cannot be said that the interview that continues after
Speaker 3: the accused statement on page nineteen is admissible as a
Speaker 3: voluntary statement. Clearly enough, the accused is exercising his right
Speaker 3: to decline to answer further questions. The exercise of this
Speaker 3: right is ignored by the investigating police, and the accused
Speaker 3: is put in the position where he is effectively told
Speaker 3: he has no such rights. He makes some two or
Speaker 3: three further attempts to assert that he wishes to say
Speaker 3: nothing further, and these are ignored. Clearly, the record of
Speaker 3: interview from the middle of page nineteen onward at the
Speaker 3: CI Branch Rockhampton is tainted and cannot be received as
Speaker 3: a voluntary statement. The judge then goes on to say,
Speaker 3: the accused has quite clearly at page nineteen exercised the
Speaker 3: right that is the right of every citizen that right
Speaker 3: must be respected in its entirety, both by the court
Speaker 3: and by the investigating officers. So I rule that the
Speaker 3: subsequent interview of the record at the CI branch subsequent
Speaker 3: to page nineteen is not admissible, as indeed is agreed,
Speaker 3: and that the video and the audio recording of the
Speaker 3: trip down to Tanuba and the return to the CI
Speaker 3: branch is also not receivable because it is not voluntary
Speaker 3: in the sense that the law uses that word.
Speaker 1: So Martin, in the judge's statement, just then he imagined
Speaker 1: something about a page nineteen.
Speaker 2: What was in that page nineteen.
Speaker 3: Well, that's a part of the interview where Kevin really
Speaker 3: asserts both his rights not to need to speak anymore,
Speaker 3: and he really states what he wants to say, and
Speaker 3: he ends by saying, nobody killed her. See that's it, man,
Speaker 3: I just told you everything. That's all the evidence. I
Speaker 3: got nothing to say. No more. Now you can't ask
Speaker 3: me anymore because I got nothing else to say. And
Speaker 3: that's a clear exercise of his right not to further
Speaker 3: continue with that interview. And yet he was continued to
Speaker 3: be pressed and pressed and pressed. And we know now
Speaker 3: that that interview went on for at least an hour further,
Speaker 3: and he was taken to Tanuba House, he was put
Speaker 3: in a police car. He was interviewed in the police
Speaker 3: car both during the ride down and back from Towas
Speaker 3: And so the judges ruled that all of that was involuntary.
Speaker 3: And we know Kevin earlier in his interview, had already
Speaker 3: asked for earlier quite forcefully. He also declined to comment
Speaker 3: on multiple times. So when the judge says that Kevin
Speaker 3: proclaimed I got nothing else to say, that was not
Speaker 3: the first time Kevin had exercised his right not to
Speaker 3: continue with the interview. The judge clearly identifies two or
Speaker 3: three other times he feels Kevin tried to end the
Speaker 3: interview and should have been allowed not to speak any further.
Speaker 3: And there's also a great deal of concern about the
Speaker 3: fact that Kevin didn't have legal representation, despite what you've
Speaker 3: already heard him requesting it multiple times.
Speaker 1: So, I mean, the police officers heard him say this
Speaker 1: very adamantly. They knew he didn't have legal representation because
Speaker 1: at the first time he'd asked for it, they still
Speaker 1: took him in a police car and took him down
Speaker 1: to Tanuba. I mean, I know, we can't really establish
Speaker 1: what their actual motives were. But it just seems like
Speaker 1: he said it over and over again. Why do they
Speaker 1: need to take him down to Tanuba.
Speaker 3: Well, clearly they're trying to get him to say something
Speaker 3: they want to hear. If they were satisfied that he'd said,
Speaker 3: or he knew, or they could get out of him,
Speaker 3: they would have stopped. But that despite knowing the law. Surely,
Speaker 3: as men who'd conducted many of these sort of interviews
Speaker 3: which they say they had on the stand, they continued
Speaker 3: to press on despite everything they're taught. And the judge
Speaker 3: was pretty ruthless in ruling a lot of this confession out.
Speaker 3: He was very clear didn't need to take his time
Speaker 3: on it. It was a very clear matter of law,
Speaker 3: and he was fairly scathing of the police and the
Speaker 3: police practice.
Speaker 1: And then what does it say that he ruled such
Speaker 1: a big chunk of the confession out so that it
Speaker 1: was involuntary. What does it say about the other parts
Speaker 1: of the confession and the ones we've already read out
Speaker 1: on air. Doesn't mean that potentially they were made involuntary too,
Speaker 1: like what we think.
Speaker 2: Might have happened.
Speaker 3: Well, the judge does say that even at the part
Speaker 3: he ends the interview where the judge doesn't allow any
Speaker 3: more of that interview to be placed into evidence that
Speaker 3: he was concerned on multiple occasions Kevin had already tried
Speaker 3: to terminate that interview. So even the judge feels the
Speaker 3: sense that Kevin was under duress and that he was
Speaker 3: not voluntarily responding to the questions he was being asked
Speaker 3: and the way he was being probed, And in fact,
Speaker 3: he even says that the police ignored the rights that
Speaker 3: Kevin has all citizens have. So I think it definitely
Speaker 3: raises a great deal of concern about the police behavior
Speaker 3: that day. And we've heard last week from Pat McGinnis,
Speaker 3: an expert in this area, and we've heard from other
Speaker 3: experts that false confessions are very common, and now we
Speaker 3: know that Kevin was pushed even when he didn't want
Speaker 3: to say anymore.
Speaker 1: It's very interesting that this came up right at the
Speaker 1: start of the trial. Isn't it that this confession played
Speaker 1: such a big part at the start of the trial.
Speaker 3: Yeah, definitely, And I think that's for two reasons. One,
Speaker 3: the prosecutor had clearly already accepted that there was a
Speaker 3: great likelihood a huge amount of the confession was going
Speaker 3: to be ruled inadmissible, and he didn't protest that at all.
Speaker 3: So even the prosecutor was accepting that the majority of
Speaker 3: Kevin's statement wasn't voluntary. And I think the other reason
Speaker 3: we can assume that this came up so early is
Speaker 3: because there really wasn't any other evidence against Kevin. So
Speaker 3: for the bulk of the trial, all that's been relied
Speaker 3: on is this one confession, and if most of that
Speaker 3: is already struck off, well that's how they had to
Speaker 3: start the trial. So they knew what they were working with.
Speaker 2: And they weren't working was a lot.
Speaker 3: Obviously, no, they weren't working with much at all. So
Speaker 3: the judge made it very clear that in removing such
Speaker 3: a large portion of Kevin's statement, that what was going
Speaker 3: to be allowed into evidence was considerably reduced compared to
Speaker 3: what the prosecutor had previously believed. So it certainly changed
Speaker 3: the shape of the trial, and it lets us know
Speaker 3: a lot about what the judge was thinking, and in
Speaker 3: an extent, even what the prosecutor was thinking, because he
Speaker 3: didn't contest. Once that judge is ruling.
Speaker 1: Now there was something else, very very strange about this case.
Speaker 3: We told you that On that same day, September fifth,
Speaker 3: the last day Kevin Henry was a free man. Three women,
Speaker 3: Susan Aubrey, Amy Saunders and Margaret Bob, the women who
Speaker 3: led the brutal assault on Winder, were arrested as well
Speaker 3: in the morning. They were charged with murder.
Speaker 2: But how could that be?
Speaker 1: How could four people be charged with murder for two
Speaker 1: separate sets of circumstances. How could Linda have been murdered twice? Mardin,
Speaker 1: We've sort of been operating under the assumption that the
Speaker 1: women it was Kevin who was charged with murder, the
Speaker 1: women had gotten the charges for Grover's bodily harm. But
Speaker 1: we later found out that wasn't the case, did we
Speaker 1: How did we find that out?
Speaker 3: Well? I received a package in the mail and I
Speaker 3: was assuming that going to be a transcript or further
Speaker 3: pages to the transcript of Kevin's trial, but in fact
Speaker 3: what it was was a transcript of proceedings in the
Speaker 3: magistrates court in Rockhampton where the three women were formally
Speaker 3: presented in front of a judge charged with murder. And
Speaker 3: this was the first time we'd heard about it, and
Speaker 3: so I'm not sure how much that Kevin's later lawyers
Speaker 3: knew about this and how much that had been analyzed
Speaker 3: even during his initial trial.
Speaker 1: It's interesting, So how long had all four people been
Speaker 1: charged with murder over Linda's death?
Speaker 3: So all four were charged on the fifth of September,
Speaker 3: and the murder charges against the three women were not
Speaker 3: dropped until the twenty seventh of February the next year.
Speaker 3: So that's a good five month period where we have
Speaker 3: Kevin and then a set of three women charged with
Speaker 3: murdering the same woman, Linda, but in separate circumstances. And
Speaker 3: that's a very odd state of affairs, and it's something
Speaker 3: I've discussed with a number of lawyers, both in Australia
Speaker 3: and overseas, and it just seems a highly unusual fact
Speaker 3: that you could have two groups charged with the murder
Speaker 3: of the same person, but based on totally separate evidence
Speaker 3: and different version of events. One can't be true. In fact,
Speaker 3: maybe both aren't true. But we find out that those
Speaker 3: charges against the three women are subsequently dropped.
Speaker 1: The thing I find very confusing about it is that
Speaker 1: the three women of charges murder early on in the morning,
Speaker 1: and yet later on Kevin has picked up so deliberately
Speaker 1: targeted it sounds like because they knew who he was,
Speaker 1: and then he's gone through this big process of almost
Speaker 1: being like, I think, being her worst to confess that
Speaker 1: they'd already had three women charge with murder already, they'd
Speaker 1: already charged people, so got the people they thought were
Speaker 1: responsible for this death. Why would they need to go
Speaker 1: pick up Kevin and charge someone else's murder.
Speaker 3: That was a question I had as well, But the
Speaker 3: answer became very clear once I received this further information
Speaker 3: in the mail. And what that shows is that Susan
Speaker 3: Aubrey was arrested at six point fifty am that morning,
Speaker 3: on the fifth of September. Now, she'd already given a
Speaker 3: statement to police the day after Linda's body had been found,
Speaker 3: and in it she doesn't say anything about Kevin's involvement.
Speaker 3: But once she'd been charged with murder, she started taking
Speaker 3: a completely different line to her first statement, and that's
Speaker 3: when Kevin's name was raised. Now people have to remember
Speaker 3: that everyone would have been talking about Linda's death, the circumstances,
Speaker 3: and there'd been a lot of witnesses to the vicious
Speaker 3: assault the three women committed against Linda. But somehow in
Speaker 3: that second interview, Susan Aubrey starts pointing the finger at Kevin,
Speaker 3: and the police, for whatever reason, start to take that seriously.
Speaker 2: So at this.
Speaker 1: Point, were there any suspects for the murder of Linda
Speaker 1: other than these women, Well, we.
Speaker 3: Can tell immediately from their statements that there certainly were.
Speaker 3: They were mentioning a lot of names by now. But
Speaker 3: we also know something else. A local lawyer approached one
Speaker 3: of the police officers that day and made a statement.
Speaker 3: Now it wasn't officially recorded, but it is acknowledged to
Speaker 3: have taken place, and that is that a client of
Speaker 3: this lawyer had confessed that he'd committed the murder, and
Speaker 3: that client was not Kevin Henry.
Speaker 2: Did the police look into it?
Speaker 1: Was there any suggestion that they had considered this other suspect.
Speaker 3: We don't believe they ever looked at it. In fact,
Speaker 3: we know once Kevin was picked up on the fifth
Speaker 3: of September and the interview conducted with him, most of
Speaker 3: which is later struck out as involuntary, the police didn't
Speaker 3: investigate anyone else. They never followed up on this individual
Speaker 3: who had supposedly confessed to a lawyer. They never followed
Speaker 3: up on the other individuals named in the statements of
Speaker 3: the three women who'd committed the violent assault and who
Speaker 3: were then charged with murder. So the police should have
Speaker 3: been looking for their co assailants if they believed, and
Speaker 3: clearly they did, that those three women had committed murder.
Speaker 3: But even the fact of a lawyer coming to them
Speaker 3: and stating that someone had confessed to them didn't seem
Speaker 3: to change the way they conducted their investigation. And once
Speaker 3: they'd taken their statement from Kevin, even though it's clearly
Speaker 3: tainted and the judge ruled that, they just stopped investigating
Speaker 3: point blank.
Speaker 1: So who actually charged the three women? Was it the
Speaker 1: same police officers?
Speaker 3: So the charges laid against the three women that was
Speaker 3: handled by the most senior police officer in Rockhampton at
Speaker 3: the time, Detective Inspector Kel Weeks. But we know from
Speaker 3: the trial transcripts that Senior comes to a Wesley Girk
Speaker 3: and Senior comes to a Robert Hunt. Were the ones
Speaker 3: that pressed forward with interviewing Kevin, with taking him to
Speaker 3: Tanuba and then we're charging him with murder? And it
Speaker 3: wasn't the detective inspector who would charge Kevin, even though
Speaker 3: the detective inspector was most senior officer and had already
Speaker 3: charged three individuals in relation to Linda's death. The two
Speaker 3: senior constables took it upon themselves to charge Kevin.
Speaker 1: I mean, that's very interesting because obviously, at that point,
Speaker 1: the highest ranked police officer in Rocky had decided that
Speaker 1: there was enough to charge women, and yet lower ranked
Speaker 1: police officers have gone ahead and decided to look into
Speaker 1: someone else.
Speaker 3: It's quite unusual, especially in a country town. It's not
Speaker 3: as if we're in a large city in the United
Speaker 3: States where multiple murders are happening on one day. This
Speaker 3: was clearly the most serious and horrific event that had
Speaker 3: happened in Rockhampton for some time. So you would assume
Speaker 3: that the police were trying to get everything done to
Speaker 3: the book accurately and investigate it fully. And we know
Speaker 3: that the most senior officer in the town was watching
Speaker 3: over the investigation and he'd decided to charge the three women.
Speaker 3: Now why two lower ranked officers and much lower ranked
Speaker 3: officers would go out of their way on that same
Speaker 3: day to charge Kevin without consulting with their superior officer,
Speaker 3: having conduct did an interview with Kevin and seemingly trying
Speaker 3: to get confessions based on just the implication of one
Speaker 3: of the accused murderers seems to be very bizarre.
Speaker 1: So I guess, bringing it back to how we I
Speaker 1: guess started. In February, the women and Kevin, their case
Speaker 1: comes up in court the Magistrate's court.
Speaker 2: Are all four still charged with murder.
Speaker 3: In the first court hearing, all four are charged with murder,
Speaker 3: but it's only the three women who appear. Kevin's not
Speaker 3: scheduled to appear for another couple of months. And it's
Speaker 3: quite unusual what occurs. And I'll read from the court
Speaker 3: transcripts so everyone can understand very clearly what happened. So
Speaker 3: the judge reads the charges and these are against the
Speaker 3: three women, and he states that on the thirty first
Speaker 3: of August nineteen ninety one, at Rockhampton in the state
Speaker 3: of Queensland, you murdered one winder and for cultural reasons,
Speaker 3: we won't say her last name. He goes on to say,
Speaker 3: there is a further charge on the same day, each
Speaker 3: of you unlawfully did grievous bodily harm to one winder.
Speaker 3: At this point the prosecutor interrupts, and this is where
Speaker 3: things get a little strange. The prosecutor says, there are
Speaker 3: preliminary matters. First, I would seek to substitute charges in
Speaker 3: relation to all three defendants in relation to those murder charges.
Speaker 3: Now that's not the strange part. What happens next is
Speaker 3: what's unusual. The judge asks one of the lawyers for
Speaker 3: the women, does he agree to these murder charges being dropped?
Speaker 3: And he states yes, I was informed of that only
Speaker 3: this morning, your worship. So at that point, the judge
Speaker 3: strikes the three murder charges against the women. But what
Speaker 3: we now know is that for five months, the women's
Speaker 3: lawyers had no idea that the charge of murder was
Speaker 3: going to be dropped against them. We don't know when
Speaker 3: that decision was made. We do know that the lawyers
Speaker 3: for the women didn't know until that day that it
Speaker 3: was going to take place that those murder charges against
Speaker 3: the three women would be dropped. What we don't know
Speaker 3: is when the police or the prosecutor made the decision
Speaker 3: themselves to drop that charge. So it appears that for
Speaker 3: five months, four people were charged with murder with two
Speaker 3: separate circumstances.
Speaker 2: So then what happened next.
Speaker 3: Well, then we have quite a lengthy period of argument
Speaker 3: between the prosecutor and the defenders for the three women.
Speaker 3: Once that murder charge had been struck out, the prosecutor
Speaker 3: tried to introduce a new charge of unlawful killing against
Speaker 3: the three women and maintains the charge of grievous bodily harm.
Speaker 3: So there's a great deal of debate between the defense
Speaker 3: lawyers and the prosecutor about that unlawful killing charge, and
Speaker 3: in the end they go back and forward on a
Speaker 3: crucial number of matters of law. But in the end
Speaker 3: the judge rules, based on the fact that there is
Speaker 3: another person who's been charged with murder and that he
Speaker 3: will hear that case in a few months time, that
Speaker 3: he won't accept the unlawful killing charge, and that is removed.
Speaker 3: So the women are no longer charged with either murder
Speaker 3: or unlawful killing. Only the charge of previous bodily harm
Speaker 3: is allowed to stand. And this is important because we
Speaker 3: know at the start of Kevin's trial the judge initially
Speaker 3: raised grave issues about his confession, and we also know
Speaker 3: he struck a huge part of that confession from the record.
Speaker 3: Now we find out the judge also had grave concern
Speaker 3: about the way all four were charged. What they were
Speaker 3: charged with, and the fact that the prosecutor seemed to
Speaker 3: be changing his mind on the run and had only
Speaker 3: told the defense lawyers that day what he was doing,
Speaker 3: and the judge just doesn't accept that. And I think
Speaker 3: that goes largely to the evidence against Kevin and perhaps
Speaker 3: even the evidence against all three women. And this seems
Speaker 3: to stem from the police really not doing their job
Speaker 3: and not having conducted a thorough investigation, because on that
Speaker 3: day in February, the judge does ask about the level
Speaker 3: of evidence against the accused, the.
Speaker 2: Level of evidence against who Kevin or the three women.
Speaker 3: Initially he asks about the evidence against the three women,
Speaker 3: but given the lack of evidence and information put forward,
Speaker 3: he then goes on to ask what the evidence is
Speaker 3: against Kevin. And that's important because for him to be
Speaker 3: convinced that he can drop the unlawful killing charge against
Speaker 3: the three women. He states that he needs to be
Speaker 3: sure that the murder charge against Kevin Henry is still
Speaker 3: going to go ahead, and so he's probing as to
Speaker 3: how much evidence there actually is, and there's not a
Speaker 3: great deal presented. There's some forensic evidence, more of which
Speaker 3: would be later revealed at Kevin Henry's trial, and one
Speaker 3: of the arresting police officers is called to the stand
Speaker 3: to explain to the judge what evidence there is, and
Speaker 3: interestingly enough, some of his evidence changes at Kevin Henry's trial.
Speaker 1: So did the defense have much to say about that
Speaker 1: that lack of evidence.
Speaker 3: They did, And what we find out about the transcript
Speaker 3: from the February is that they hadn't seen most of
Speaker 3: the evidence, particularly the physical evidence, and they asked that
Speaker 3: the evidence be tended and then ask for an adjournment
Speaker 3: so that they can look through the evidence. So that's
Speaker 3: highly unusual that we've got charges being dropped, new charges
Speaker 3: being included. We've got the defense not having seen evidence,
Speaker 3: the defense not being aware that those charges were going
Speaker 3: to be dropped. We've got a judge who's not convinced
Speaker 3: of the whole process. We've got a judge who is
Speaker 3: only agreeing to drop charges and only agreeing to introduce
Speaker 3: new charges if the prosecution will bring that evidence forward
Speaker 3: so that both he and the defense can see it.
Speaker 3: There's a lot of mess in this situation, and it
Speaker 3: comes largely from the police and prosecution side.
Speaker 1: But given that we know that there wasn't a lot
Speaker 1: of evidence to justify what we think anyway in our
Speaker 1: conviction over murtaphor Kevin. I mean, would there have been
Speaker 1: any enough evidence even brought forward at that time in
Speaker 1: February when they're actually looking.
Speaker 3: At this at that time. No. And one thing we
Speaker 3: do know, however, is that multiple witnesses in the case
Speaker 3: gave up to three different statements. In fact, one witness
Speaker 3: may have given many more. So clearly, once this had
Speaker 3: taken place and the judge had been raising doubts, more
Speaker 3: evidence was sought by the police. And that wasn't physical evidence,
Speaker 3: it wasn't forensic evidence, it wasn't DNA, It was simply
Speaker 3: the statements of people who'd already given sworn evidence as statement.
Speaker 1: So what you're saying is after February, when they realized
Speaker 1: they had to gather more evidence, they went back and
Speaker 1: reinterviewed people had given witness statements.
Speaker 2: So other people gave two witness statements.
Speaker 3: Yeah, so there was two witness statements. Some witnesses gave three,
Speaker 3: some even more. And what's concerning about that is in
Speaker 3: their first statements, given either the day after Linda had
Speaker 3: been found or in the following days, those witnesses largely
Speaker 3: say they can't remember what happened, and they say that
Speaker 3: because they consumed a large amount of alcohol the night
Speaker 3: Winder died. So how could they be expected to recall five, six,
Speaker 3: seven months later what they couldn't recall only days after
Speaker 3: Winder's death. Nevertheless, the police pressed forward with interviewing those people,
Speaker 3: and we know they even chased some of them around
Speaker 3: Queen's and to get those interviews. So there was clearly
Speaker 3: concern amongst the police and probably from the prosecutor too,
Speaker 3: that the evidence they had was not going to hold
Speaker 3: up in court, and the judge had made that very
Speaker 3: clear in the February.
Speaker 1: And now before that you talked about the women also
Speaker 1: being charged with unlawful killing instead of murder and how
Speaker 1: that was dropped.
Speaker 2: But what is the difference between unlawful killing and murder?
Speaker 3: Okay, So in that court case in the February, that's explained,
Speaker 3: and I'll read from the transcript. The definition of killing
Speaker 3: is contained in section two ninety three of the Code.
Speaker 3: It simply reads, it is unlawful to kill any person
Speaker 3: unless such a person is authorized or justified or excused
Speaker 3: by law. It goes on to state except as here
Speaker 3: and after as said, for any person who causes the
Speaker 3: death of another directly or indirectly by any means whatever
Speaker 3: is deemed to have killed that other person. Now, whether
Speaker 3: you understand the definition of unlawful killing, the difference between
Speaker 3: unlawful killing and murder in this case, it really doesn't matter,
Speaker 3: because what we know is what happened next, and that
Speaker 3: is the judge refused to accept the unlawful killing charge
Speaker 3: against the three women. He ruled but not only was
Speaker 3: there not enough evidence, but that the prosecutor couldn't possibly
Speaker 3: bring a murder charge later on in the year against
Speaker 3: another individual having been accused of murdering a woman, Linda,
Speaker 3: in completely separate circumstances if he intended to charge the
Speaker 3: three women that day in separate circumstances. So the unlawful
Speaker 3: killing charge as well as the murder charge against the
Speaker 3: three women was thrown out.
Speaker 1: Because they wouldn't have been able to go ahead with
Speaker 1: a murder charge against Kevin Henry if the women were
Speaker 1: being convicted or being charged and then later convicted over
Speaker 1: unlawful killing. It wouldn't work that way. They'd have to
Speaker 1: drop the gu charges against Kevin.
Speaker 2: Would you say, well.
Speaker 3: It sounds like that was the ultimatum that was being
Speaker 3: delivered to the prosecution. The judge went on for a
Speaker 3: number of pages. In fact, most of his discussion was
Speaker 3: done with the prosecutor present, but not even speaking to
Speaker 3: the prosecutor. The matters of law were discussed amongst the
Speaker 3: defense lawyer and the lead barrister and the judge. By
Speaker 3: this point it was fairly clear from what's written in
Speaker 3: the statements as what was said in court, that the
Speaker 3: judge had lost patients with the prosecutor and he was
Speaker 3: going to work out the matter of law for himself,
Speaker 3: and much of the assistance for that came from the
Speaker 3: defense attorney. So we can tell that the judge really
Speaker 3: not satisfied with what was going on, and we have
Speaker 3: to assume that that pressure that was applied that day,
Speaker 3: the unhappiness on the judge's behalf, was passed on through
Speaker 3: the prosecutor to the police who'd made the call that day,
Speaker 3: on the fifth of September, to charge Kevin Henry with
Speaker 3: murder without it having ever been recommended by the most
Speaker 3: senior police officer at the Rockhampton Police station.
Speaker 1: So the fact that the women were charged originally with
Speaker 1: murder makes me think that, you know, the potential for
Speaker 1: the assault to be lethal was obviously something that there
Speaker 1: was thought by a lot of people at the time.
Speaker 3: Yeah, that's right, and it was considered part of the
Speaker 3: forensic evidence, first in the February and then later on
Speaker 3: at the full trial of all four in the April,
Speaker 3: and two forensic experts testified and both would have very
Speaker 3: interesting things to say about the forensics, the way they
Speaker 3: were gathered and what conclusions could be drawn. Now we've
Speaker 3: done our own examination of that forensic evidence, but don't
Speaker 3: just take our word for it. Next week we'll speak
Speaker 3: to an international expert and hear what they have to
Speaker 3: say about the way the forensics were handled, testified to
Speaker 3: and what they suggest.
Speaker 1: That was episode five of Curtain, a podcast delving into
Speaker 1: the nineteen ninety one murder of an Aboriginal woman named
Speaker 1: Linda on the banks of Tanuba or the Fitzroy River
Speaker 1: in Rockampton, Central Quensland. For now, you can catch up
Speaker 1: on iTunes by typing in Curtain the Podcast, or go
Speaker 1: to our website www dot Curtainthepodcast dot com.
Speaker 3: Also follow us on Facebook and Twitter at Curtain the Podcast.