WEBVTT - Lost in Language 0:00:02.680 --> 0:00:06.080 Just before nine o'clock last night, the jury returned guilty 0:00:06.160 --> 0:00:08.480 verdicts against all three defendants. 0:00:08.520 --> 0:00:11.119 It was absolute shambles, to tell you the truth, just 0:00:11.200 --> 0:00:14.040 absolutely really colored blood on his clothing the day after 0:00:14.160 --> 0:00:15.200 the alleged attamp. 0:00:14.960 --> 0:00:16.960 On a shallow mud bank and the Fitzroy River. 0:00:17.079 --> 0:00:19.119 Basically, I think most of the people are used to 0:00:19.160 --> 0:00:20.600 me are good people. 0:00:20.640 --> 0:00:23.280 I think a really important question we need to ask 0:00:23.480 --> 0:00:26.360 is how many Indigenous prisoners in Australia are innocent. 0:00:27.280 --> 0:00:29.880 This is Curtain, a podcast where we pulled back the 0:00:29.920 --> 0:00:32.440 blinds to shine a light on the darkest parts of 0:00:32.479 --> 0:00:35.400 our justice system and ask who are the victims. 0:00:36.040 --> 0:00:38.600 I'm Amy Maguire and. 0:00:38.479 --> 0:00:42.120 I'm Martin Hodgson, a senior advocate for the Foreign Prisoner 0:00:42.120 --> 0:00:46.480 Support Service. And a warning, this series contains the names 0:00:46.520 --> 0:00:50.839 of deceased peoples and has distressing content that might upset 0:00:50.960 --> 0:00:51.680 some listeners. 0:00:52.800 --> 0:00:57.560 This week Australia's media descended on Rockhampton and all eyes 0:00:57.560 --> 0:01:00.640 were on the Fitzroy River, which runs through the center 0:01:00.680 --> 0:01:03.640 of town. You have heard a lot about this river 0:01:03.760 --> 0:01:06.560 after the past twenty one episodes occurred in the podcast. 0:01:07.160 --> 0:01:09.959 It is the place where Linda lost her life on 0:01:10.040 --> 0:01:14.959 the night of August thirty one, nineteen ninety one. Now 0:01:15.120 --> 0:01:19.400 in twenty seventeen, it's on television as the waters rise. 0:01:19.480 --> 0:01:22.319 It's being used as a backdrop by mainstream news anchors 0:01:22.720 --> 0:01:26.360 who are broadcasting very close to Tanuba House, the site 0:01:26.400 --> 0:01:28.560 of the nine nine one murder and one of the 0:01:28.600 --> 0:01:31.040 greatest injustices in this town. 0:01:33.240 --> 0:01:36.400 And yet while there are acres of reportage as the 0:01:36.440 --> 0:01:40.960 Fitzroy River swells, it's only now that the mainstream media 0:01:41.000 --> 0:01:44.880 are starting to pick up on this injustice, the wrongful 0:01:44.920 --> 0:01:49.320 conviction of Kevin Henry, who's been sitting in jail for 0:01:49.440 --> 0:01:53.800 twenty five years, serving time for a crime he did 0:01:53.840 --> 0:01:59.480 not commit. Yes, he is still in jail. We can 0:01:59.520 --> 0:02:04.000 tell you that this month Kevin Henry's case again went 0:02:04.040 --> 0:02:05.240 before the parole board. 0:02:06.560 --> 0:02:08.560 Remember we told you earlier on in the year that 0:02:08.600 --> 0:02:11.480 the Queensland Government has committed to the recommendations of a 0:02:11.520 --> 0:02:15.239 review into the state's parole system. It hasn't been reformed 0:02:15.280 --> 0:02:19.959 for over eighty years, and judging from Kevin's case, little 0:02:20.000 --> 0:02:21.519 has changed. 0:02:22.240 --> 0:02:24.840 In this episode, we're going to tell you why Kevin 0:02:24.919 --> 0:02:28.840 Henry has again been knocked back for parole for the 0:02:28.880 --> 0:02:33.320 second time in just a couple of months. The decision 0:02:33.360 --> 0:02:37.200 of the Parole Board revolves around a number of technicalities. 0:02:37.919 --> 0:02:42.160 But first it's important to understand that under Queensland law, 0:02:42.639 --> 0:02:47.400 the Parole Board is required to accept the findings of 0:02:47.440 --> 0:02:52.320 the initial trial and the comments of the sentencing judge. 0:02:52.720 --> 0:02:56.760 So they can't look at new evidence and they can't 0:02:56.800 --> 0:03:01.120 decide that Kevin Henry is now innocent. But what they 0:03:01.240 --> 0:03:06.440 can do is look at the trial and Kevin's behavior, 0:03:07.320 --> 0:03:13.600 his conducting of programs over the years, psychologists reports, and 0:03:14.919 --> 0:03:18.519 the way Kevin would impact on the community and how 0:03:18.560 --> 0:03:21.880 he would go upon release, whether he would be likely 0:03:22.000 --> 0:03:26.639 to reoffend or not reoffend. And the primary reason why 0:03:26.919 --> 0:03:30.760 the Parole Board have most recently knocked back Kevin's parole 0:03:32.480 --> 0:03:35.760 is largely based, according to them, on a discussion they 0:03:35.800 --> 0:03:41.160 had with Kevin on June tenth last year, in twenty sixteen, 0:03:42.240 --> 0:03:46.960 and they say it was because of the applicants' admissions 0:03:47.040 --> 0:03:49.440 before the Parole Board on that date. 0:03:50.520 --> 0:03:53.240 Now, in order to understand that, you'll also have to 0:03:53.320 --> 0:03:59.600 understand that the parole decision is based also on cultural differences. 0:04:00.520 --> 0:04:03.640 We've told you before that the parole system discriminates against 0:04:03.680 --> 0:04:07.800 Aboriginal people, and when looking at Kevin's case, it's not 0:04:07.840 --> 0:04:08.760 hard to see why. 0:04:09.920 --> 0:04:10.920 Over the past. 0:04:10.640 --> 0:04:13.840 Decade, Martin and I have been separately working on the 0:04:13.880 --> 0:04:17.359 case of the Barable murders, Mardin in his capacity as 0:04:17.360 --> 0:04:21.240 a lawyer and myself as a journalist. Those were three 0:04:21.360 --> 0:04:24.360 Aboriginal children who were murdered on the Bowable Mission within 0:04:24.400 --> 0:04:27.440 a few months of each other, from the year nineteen 0:04:27.560 --> 0:04:29.919 ninety to nineteen ninety one. 0:04:30.480 --> 0:04:35.080 The tragic murders of Colleen Craig Walker, Clinton Speedy Duro, 0:04:35.520 --> 0:04:39.800 and Evelyn Greenup all occurred only a few months before 0:04:39.880 --> 0:04:44.680 Linda died. Because of flaws in the police investigation and 0:04:44.720 --> 0:04:48.400 in the judicial process, the only man who has ever 0:04:48.440 --> 0:04:50.919 been in the sights of the law over their deaths 0:04:51.400 --> 0:04:56.120 has never been convicted. After twenty five years of campaigning, 0:04:56.680 --> 0:05:00.000 the families have been instrumental in getting him back before 0:05:00.080 --> 0:05:03.880 for the court he's due to appear later in the year. 0:05:04.839 --> 0:05:08.440 He has been acquitted over the murder of Clinton and Evelyn, 0:05:08.560 --> 0:05:11.160 and Colleen has never been found. 0:05:12.480 --> 0:05:16.920 Now. During Evelyn Greenut's trial, a linguistics expert named Diana 0:05:17.000 --> 0:05:20.120 Eads attended and wrote a report on what she saw 0:05:21.440 --> 0:05:25.200 in the trial, she identified key differences in how Duras 0:05:25.200 --> 0:05:29.080 assessed Aboriginal witnesses compared to non Aboriginal witnesses. 0:05:30.480 --> 0:05:34.760 Now, Doctor Diana ads it's important to understand specializes in 0:05:34.839 --> 0:05:41.000 critical socio linguistics, language in the legal process, and intercultural 0:05:41.000 --> 0:05:46.479 communication and this is particularly involving Australian Aboriginal people who 0:05:46.520 --> 0:05:50.040 speak varieties of the English language as well as their 0:05:50.080 --> 0:05:53.320 own languages. And she's also the author of the book 0:05:54.040 --> 0:05:58.880 Aboriginal Ways of Using Language Now. In addition to her 0:05:58.920 --> 0:06:03.240 work on the Bouerville trial, she was also instrumental in 0:06:03.320 --> 0:06:08.039 assisting an Aboriginal woman in Queensland overcome one of the 0:06:08.080 --> 0:06:13.520 greatest miscarriages of justice in Australian legal history. The Aboriginal 0:06:13.520 --> 0:06:18.200 woman was subject of years of domestic violence and sexual 0:06:18.200 --> 0:06:22.960 abuse which resulted in her killing her partner who was 0:06:22.960 --> 0:06:27.080 committing that abuse against her. But despite this being a 0:06:27.160 --> 0:06:31.520 murder trial, the entire trial, including the swearing in of 0:06:31.600 --> 0:06:37.520 the jury, hearings from both sides, the jury returning, took 0:06:37.680 --> 0:06:42.880 just over three hours. This was not justice. After six 0:06:43.000 --> 0:06:48.240 years in Boggo Road Prison in Brisbane, the conviction was 0:06:48.279 --> 0:06:53.520 appealed and doctor Reeds was instrumental in showing that the 0:06:53.560 --> 0:06:59.280 way lawyers, police and all those involving the case communicated 0:06:59.320 --> 0:07:04.520 with this average woman meant that all those extenuating circumstances, 0:07:04.680 --> 0:07:07.760 the fact that she'd been subjected to years of abuse, 0:07:08.720 --> 0:07:12.559 subjected to years of sexual abuse as well, had never 0:07:12.600 --> 0:07:17.800 been presented at the trial. And this is what she 0:07:17.840 --> 0:07:20.160 has to say about why that occurred. 0:07:21.280 --> 0:07:24.360 I had the previous year published a handbook through the 0:07:24.440 --> 0:07:30.000 Queensland Law Society called Aboriginal English and the Law and 0:07:30.040 --> 0:07:33.520 the things that I was recognizing just from that brief 0:07:33.560 --> 0:07:36.800 TV interview about the obvious evidence about the silence in 0:07:36.800 --> 0:07:42.440 that interview long silences, not many pauses, long silences. That 0:07:42.560 --> 0:07:44.640 was also things I'd written about to look for lawyers 0:07:44.640 --> 0:07:48.640 in ninety two. So I was then asked to provide 0:07:48.640 --> 0:07:54.400 an expert report for her second for that appeal against 0:07:54.440 --> 0:07:57.400 the conviction. That was the appeal against the conviction, and 0:07:57.440 --> 0:08:00.480 the grounds of the appeal were that from that the 0:08:00.880 --> 0:08:02.840 lawyers had set up, the grounds of the appeal were 0:08:03.160 --> 0:08:06.480 that her own lawyers hadn't got her story and were 0:08:06.560 --> 0:08:10.560 unable to defend her. And well, the good the good 0:08:10.560 --> 0:08:14.080 thing is that she was successful in that appeal that 0:08:14.200 --> 0:08:20.000 the judges recognized. And there were three grounds on which 0:08:21.240 --> 0:08:24.920 the that the appeal was successful, and one was related 0:08:24.960 --> 0:08:28.920 to now I have to get this right because I 0:08:28.920 --> 0:08:34.200 focused on linguistics, But one was related to the the 0:08:34.240 --> 0:08:38.120 way that victims of trauma don't always remember everything. 0:08:38.840 --> 0:08:39.240 Uh. 0:08:39.280 --> 0:08:44.680 And one that there was another social, social, sociologic, social work, 0:08:44.920 --> 0:08:48.040 psychology grounds. The ground that I was prepared to report 0:08:48.080 --> 0:08:50.480 on was that the evidence that I was able to 0:08:50.480 --> 0:08:54.560 gather that made a strong suggestion that her lawyers didn't 0:08:54.600 --> 0:08:59.080 know how to communicate with Aboriginal people, and the pressure 0:08:59.120 --> 0:09:01.360 that they were under to get you know, they were 0:09:01.520 --> 0:09:04.880 legal aid lawyers working under tremendous pressure. The pressure they 0:09:04.880 --> 0:09:07.200 were under to go to the prison, get her story, 0:09:07.280 --> 0:09:09.959 get answers to some questions, come back and prefer her defense. 0:09:10.559 --> 0:09:13.720 They never got the chance to hear his story, while 0:09:14.480 --> 0:09:17.520 in the same time period she was telling her story 0:09:17.559 --> 0:09:23.040 actually to a counselor who was writing things down and 0:09:23.080 --> 0:09:25.200 who encouraged her to write things down. The sad thing 0:09:25.240 --> 0:09:29.720 is that those things were never taken up by the lawyers. 0:09:31.200 --> 0:09:34.320 But so she had the story and she knew what 0:09:34.320 --> 0:09:36.400 it was, and she was able she was able to 0:09:36.440 --> 0:09:40.319 say the grounds for why she had to she had 0:09:40.320 --> 0:09:43.520 to get the knife, et cetera. But her lawyers never 0:09:43.559 --> 0:09:46.000 heard it. She was never defended. And so that was 0:09:46.040 --> 0:09:50.600 an important issue about communicating people with people in my 0:09:50.679 --> 0:09:54.120 socio linguistic report. It wasn't about particular words, it wasn't 0:09:54.160 --> 0:09:57.040 about accent. It was about a few key things, and 0:09:57.120 --> 0:10:00.600 one was that communication, how you enable a person to 0:10:00.600 --> 0:10:03.680 tell a difficult story, and that whole issue around the 0:10:03.679 --> 0:10:08.080 way silence is used it interpreted, and also about how 0:10:09.080 --> 0:10:14.040 many non Aboriginal people interviewing Aboriginal people, particularly under pressure, 0:10:15.640 --> 0:10:19.679 they don't wait for the answer, and there is about 0:10:19.679 --> 0:10:23.520 that we can talk about that. But also they often 0:10:23.600 --> 0:10:26.000 frame questions in such a way that it's very easy 0:10:26.000 --> 0:10:29.040 to get people just to say yes. But yes mightn't 0:10:29.080 --> 0:10:33.640 mean I agree with what you're saying. It might mean 0:10:33.679 --> 0:10:38.439 something like you asking me all these questions. If I 0:10:38.520 --> 0:10:40.560 keep on saying yes, somehow we'll get through this interview 0:10:40.559 --> 0:10:42.080 and we can sort it all out later. And of 0:10:42.120 --> 0:10:43.760 course in the legal system you can't. 0:10:45.280 --> 0:10:48.559 Now what doctor Diana Eads was describing. There is what 0:10:48.600 --> 0:10:52.160 we've come to know as good sewardous concurrence, and it's 0:10:52.200 --> 0:10:56.959 also known as the yes syndrome. There's a perception that 0:10:57.120 --> 0:11:00.839 the differences in the way Aboriginal people talk, particularly in 0:11:00.920 --> 0:11:04.920 illegal sense, is confined to remote Australia. But in both 0:11:04.960 --> 0:11:09.920 cases Dr Eves is talking about cases that involved Aboriginal 0:11:09.920 --> 0:11:15.880 people living regionally in urban areas. Martin did this issue 0:11:15.920 --> 0:11:19.240 of gratuitous concurrence? How did it come up in relation 0:11:19.400 --> 0:11:20.640 to Kevin Henry's case. 0:11:21.720 --> 0:11:23.720 Well, I think it's a very good point you raise 0:11:23.840 --> 0:11:27.960 that it's not just remote, it's also regional, and it's 0:11:27.960 --> 0:11:32.480 for Aboriginal people right around Australia. In fact, as the 0:11:32.520 --> 0:11:36.320 title of doctor Reed's book says, it's Aboriginal ways of 0:11:36.480 --> 0:11:41.120 using English, so it's even for Aboriginal people whose first 0:11:41.240 --> 0:11:46.640 language is English. And what happened in Kevin's meeting with 0:11:46.720 --> 0:11:50.840 the parole Board is just as we know it as. 0:11:50.920 --> 0:11:54.800 The yes syndrome is that when the Parole Board was 0:11:54.880 --> 0:12:00.199 asking Kevin questions, most of his responses were simply yes, 0:12:00.760 --> 0:12:04.679 and so rather than him being given an opportunity to 0:12:04.800 --> 0:12:10.320 explain what he meant or being listened to, simply the 0:12:10.360 --> 0:12:15.360 way the questions were framed by the Parole Board meant 0:12:15.480 --> 0:12:19.840 that Kevin simply gave a number of yes answers. There's 0:12:19.880 --> 0:12:22.960 a few reasons why this takes place. One is to 0:12:23.000 --> 0:12:29.040 simply placate the person asking the question. The other issue 0:12:29.080 --> 0:12:33.800 is that there can be a misunderstanding as to why 0:12:33.840 --> 0:12:37.880 the question is being asked, the importance of the question, 0:12:38.600 --> 0:12:41.680 and it's also a very stressful environment in which these 0:12:41.760 --> 0:12:45.560 questions are being asked. But basically, what it comes down 0:12:45.600 --> 0:12:49.040 to is the Parole Board is saying that in this interview, 0:12:50.080 --> 0:12:54.360 Kevin broke his twenty five years of maintaining his innocence. 0:12:55.080 --> 0:12:58.320 Now it's important to point out he never actually did that. 0:12:58.880 --> 0:13:03.240 Kevin has always mained his innocence. But one or two 0:13:03.280 --> 0:13:06.520 of the questions that were asked, which perhaps Kevin didn't 0:13:06.600 --> 0:13:12.280 understand or which perhaps weren't explained to him properly, resulted 0:13:12.320 --> 0:13:17.559 in Kevin giving the answer yes. And therefore, based on 0:13:17.720 --> 0:13:24.320 that question, the Parole Board is then saying that Kevin 0:13:25.080 --> 0:13:29.600 didn't exactly admit to the crime, but didn't maintain his innocence. 0:13:30.040 --> 0:13:32.000 And they went on to say, and I quote in 0:13:32.080 --> 0:13:37.000 their report, that history is indicated to the board that 0:13:37.120 --> 0:13:42.840 the applicant did not have difficulty with gratuitous concurrence during 0:13:42.960 --> 0:13:46.800 those years, and what they're talking about there is over 0:13:46.800 --> 0:13:50.360 the last number of years when Kevin has appeared before 0:13:50.480 --> 0:13:54.000 them as a parole board. But of course what they've 0:13:54.120 --> 0:13:58.559 said that he didn't have a problem with gratuitous concurrence 0:14:00.720 --> 0:14:04.760 is one hundred percent inaccurate, and it shows the exact 0:14:04.920 --> 0:14:10.080 issues that gratuitous concurrence raises. That here a parole board 0:14:10.240 --> 0:14:13.760 meeting with an individual they barely know, an individual who 0:14:13.920 --> 0:14:17.840 has maintained his innocence for twenty five years and who 0:14:17.880 --> 0:14:21.960 attempted to do so again in their presence, walked away 0:14:22.000 --> 0:14:27.160 believing he'd done exactly the opposite, just as the yes 0:14:27.200 --> 0:14:31.120 syndrome says, in a question where Kevin probably should have 0:14:31.200 --> 0:14:35.320 said no, he said yes. And from that they have 0:14:35.480 --> 0:14:39.520 changed the course of his life. And so here, once again, 0:14:39.720 --> 0:14:42.400 as it did at trial, as it did in his 0:14:42.600 --> 0:14:46.600 initial interview, and as it has done in Kevin trying 0:14:46.680 --> 0:14:50.400 to get out after twenty five years, this issue of 0:14:50.440 --> 0:14:53.520 gratuitous concurrence has plagued Kevin's life. 0:14:54.000 --> 0:14:56.800 Now it's obvious that the proboard didn't really understand what 0:14:56.840 --> 0:15:00.680 gratuito's concurrence was that Martin. Do they have an excuse 0:15:01.320 --> 0:15:03.760 for using it in the wrong way? Do you think. 0:15:04.560 --> 0:15:06.880 I really don't think there's an excuse for them not 0:15:06.960 --> 0:15:11.840 to understand the issue, particularly given it's so important and 0:15:11.880 --> 0:15:18.000 has been demonstrated in legal precedent in Queensland with the 0:15:18.080 --> 0:15:22.080 Aboriginal woman we spoke about earlier having her sentence totally 0:15:22.160 --> 0:15:26.040 quashed by the Supreme Court of Queensland largely based on 0:15:26.160 --> 0:15:29.840 this issue. But the study of this issue and the 0:15:29.960 --> 0:15:34.440 explaining of it goes back to even nineteen eighty where 0:15:34.440 --> 0:15:38.560 there was a book a university journal called Human Studies, 0:15:39.440 --> 0:15:43.160 and this was produced by the University of California, and 0:15:43.280 --> 0:15:47.840 Ken Lieberman, who wrote about the ambiguity and gratuitous concurrence 0:15:47.920 --> 0:15:54.680 in intercultural communication, cited the most obvious example in all 0:15:54.720 --> 0:15:58.360 of human communication where this arises, and this is what 0:15:58.440 --> 0:16:03.720 he says, that it's between the interaction between European Australians 0:16:03.840 --> 0:16:09.760 and Aboriginal Australians, where communication is cross modal and therefore 0:16:10.120 --> 0:16:15.760 can break down. So there we have a university professor 0:16:16.000 --> 0:16:21.240 explaining at more than a decade before Kevin was even sentenced, 0:16:21.640 --> 0:16:24.760 and we also have Australian lawyers who have written about 0:16:24.800 --> 0:16:28.920 this over the years. One is David Coleman, who has 0:16:28.960 --> 0:16:34.680 spoken about the cultural disadvantage that Aboriginal people experience under 0:16:34.840 --> 0:16:41.600 interrogation and particularly cross examination because of this particular issue 0:16:41.960 --> 0:16:47.400 gratuitous concurrence, and that people are likely Aboriginal people are 0:16:47.560 --> 0:16:51.520 likely to get themselves into all sorts of trouble, life 0:16:51.800 --> 0:16:56.760 changing trouble simply because, as he says, based on whether 0:16:56.800 --> 0:17:00.640 they say yes or no to a question where the 0:17:00.760 --> 0:17:04.919 evidence suggests they will say yes. And if the person 0:17:05.119 --> 0:17:09.719 framing the question knows this, they can exploit it, and 0:17:09.760 --> 0:17:12.480 it means they can get the outcomes that they desire. 0:17:13.080 --> 0:17:16.760 If the person doesn't understand this, it means they will 0:17:16.800 --> 0:17:21.840 totally misunderstand the answers that that Aboriginal person is giving. 0:17:23.680 --> 0:17:26.800 One and we obviously saw this was Kevin Henry's confession, 0:17:26.880 --> 0:17:31.200 which we've discussed previously. But what other examples of gratuitous 0:17:31.240 --> 0:17:34.960 concurrence have aism already in this trial? 0:17:36.080 --> 0:17:40.560 Okay, so the issues we've spoken about in Kevin's confession 0:17:40.800 --> 0:17:44.440 have to do with Kevin obviously saying yes a lot, 0:17:44.480 --> 0:17:48.760 as we know, and also having trouble understanding the questions 0:17:48.840 --> 0:17:52.040 that he's being asked. But it was not just Kevin 0:17:52.080 --> 0:17:57.800 who had this issue throughout his criminal trial, every single 0:17:57.920 --> 0:18:03.359 Indigenous witness on the stand end answered many of the 0:18:03.440 --> 0:18:06.480 questions put to them by the prosecutor with a yes, 0:18:07.280 --> 0:18:10.560 and then under cross examination they were asked the same 0:18:10.720 --> 0:18:16.719 question but leading to the opposite scenario having taken place. 0:18:17.080 --> 0:18:20.280 So where the prosecutor might have been asking just two 0:18:20.359 --> 0:18:24.560 plus two equal four, their answer came back yes. And 0:18:24.600 --> 0:18:28.399 when the defense attorney says to two plus two equal seven, 0:18:28.880 --> 0:18:32.959 their answer came back yes again. So there was a 0:18:33.000 --> 0:18:36.880 great deal of confusion throughout the trial, which is that 0:18:37.080 --> 0:18:42.399 the witnesses, particularly the Indigenous witnesses, were put questions to 0:18:42.480 --> 0:18:46.480 them that a they did not understand and b where 0:18:46.520 --> 0:18:51.560 they simply answered yes, despite those questions being asked twice 0:18:51.760 --> 0:18:55.639 and very differently. So I think we can understand why 0:18:55.680 --> 0:18:59.560 the jury might have been terribly confused as to what 0:18:59.720 --> 0:19:04.480 people were saying and to refresh people's memory. Remember, the 0:19:04.560 --> 0:19:09.760 jury had to come back three times for direction from 0:19:09.840 --> 0:19:14.000 the trial judge. This is highly unusual. And some of 0:19:14.040 --> 0:19:18.840 this did have to relate to the witness's answers. And 0:19:18.880 --> 0:19:23.440 we also saw on the stand that certain witnesses simply 0:19:23.520 --> 0:19:28.840 contradicted their own statements that they'd given, and that's because 0:19:29.040 --> 0:19:33.359 those witnesses, just like Kevin Henry. And remember, many of 0:19:33.400 --> 0:19:37.640 these witnesses had not committed any crime at all, simply 0:19:37.720 --> 0:19:42.960 gave yes answers to almost every question the police asked them. 0:19:43.400 --> 0:19:47.359 They were clearly under a huge amount of stress. They 0:19:47.400 --> 0:19:51.800 were perhaps under duress and being pressured to give statements, 0:19:53.119 --> 0:19:57.200 and their answers, no matter what the question, were coming back. 0:19:57.359 --> 0:19:57.560 Yes. 0:19:58.440 --> 0:20:01.040 Now, one more thing I have to remind you about. 0:20:02.520 --> 0:20:08.200 Almost all of these witnesses gave multiple statements, and almost 0:20:08.320 --> 0:20:13.800 every single one of those statements was contradictory, almost exclusively. 0:20:14.200 --> 0:20:19.160 When witnesses were asked in their first statement who was involved, 0:20:19.359 --> 0:20:21.640 they were able to give the names. And then when 0:20:21.840 --> 0:20:24.840 they were asked if they were sure, yes, are you 0:20:24.880 --> 0:20:28.640 sure you saw this person do this? Yes, Then when 0:20:28.680 --> 0:20:33.000 they gave their second statements and the police introduced the 0:20:33.080 --> 0:20:37.280 name of Kevin Henry, even though the witnesses had never 0:20:37.359 --> 0:20:40.959 raised his name, or if his name had been raised 0:20:40.960 --> 0:20:45.120 in the past, had said he simply wasn't there. Suddenly, 0:20:45.200 --> 0:20:48.879 when they were pushed that yes, syndrome kicked in again, 0:20:49.840 --> 0:20:52.840 and people who had said they didn't even see Kevin 0:20:52.880 --> 0:20:57.439 Henry that night were suddenly seeing Kevin Henry in every 0:20:57.520 --> 0:21:02.000 scenario the police put to them, not by describing that scenario, 0:21:02.320 --> 0:21:07.440 but simply by saying yes. So the issue of gratuitous 0:21:07.440 --> 0:21:12.200 concurrence played an enormous role in the trial of Kevin Henry, 0:21:12.680 --> 0:21:17.119 and perhaps an even greater role than any other murder 0:21:17.160 --> 0:21:21.160 trial you're likely to come across, given that the accused, 0:21:21.640 --> 0:21:26.919 Kevin Henry, had no forensic evidence presented against him, no 0:21:27.119 --> 0:21:32.320 DNA evidence presented against him, pleaded not guilty, and had 0:21:32.359 --> 0:21:36.120 not a single eye witness give evidence to say that 0:21:36.200 --> 0:21:39.520 they saw him commit any crime whatsoever. 0:21:40.840 --> 0:21:43.280 So what specific examples do you have? 0:21:44.000 --> 0:21:47.040 So during the trial, First we'll take the example of 0:21:47.200 --> 0:21:52.240 witness SM, who we've spoken about in the past. S 0:21:52.480 --> 0:21:56.520 M was put to her by the prosecutor that they 0:21:56.560 --> 0:22:00.840 had not been drinking throughout that day, and the answer 0:22:01.040 --> 0:22:06.080 was yes. The questions continued, while everyone else had been drinking. 0:22:06.200 --> 0:22:12.600 You didn't drink until after lunchtime? Answer yes. Now under 0:22:12.640 --> 0:22:19.040 cross examination, Kevin's defense attorney believed SM had been drinking, 0:22:19.880 --> 0:22:23.520 and so they asked the question, you had been drinking, 0:22:23.640 --> 0:22:29.040 hadn't you during the day? Answer yes, you'd been drinking 0:22:29.119 --> 0:22:35.640 before lunchtime that day? Answer yes, Now This very basic 0:22:35.760 --> 0:22:39.840 example shows that four answers were given. All of them 0:22:39.840 --> 0:22:44.480 were yes, but the two contradict each other. So two 0:22:44.640 --> 0:22:49.399 yess say not drinking and not before lunchtime. The second 0:22:49.480 --> 0:22:55.040 two yeses say yes drinking and yes before lunchtime. Now 0:22:55.040 --> 0:22:59.600 there were also other examples. Will take Witness JF, who 0:22:59.680 --> 0:23:05.320 was shown some of the key forensic evidence by duck Hart. 0:23:06.520 --> 0:23:11.040 Witness JF was shown this evidence the following morning, after 0:23:11.280 --> 0:23:15.080 Linda had been murdered and after her body had been found. 0:23:16.320 --> 0:23:20.119 The particular evidence was some of Linda's clothing that was 0:23:20.160 --> 0:23:25.240 found just near to nuber house. Now, asked by the 0:23:25.280 --> 0:23:30.919 prosecutor why she'd gone to where that evidence was who'd 0:23:31.000 --> 0:23:39.480 shown it, JF really couldn't give an answer. JF attempted 0:23:39.520 --> 0:23:43.600 to describe how it might have taken place, but conceded 0:23:43.720 --> 0:23:49.200 that during her statements she'd given multiple answers and didn't 0:23:49.240 --> 0:23:52.360 really understand what the police were trying to get to. 0:23:53.320 --> 0:23:58.679 But the prosecutor pressed forward and simply moved past this issue. 0:23:59.440 --> 0:24:03.640 But this was quite crucial. We're talking about Linda's clothes, 0:24:05.000 --> 0:24:08.480 key pieces of forensic evidence that remember, did not have 0:24:09.160 --> 0:24:13.640 any of Kevin Henry's DNA on them whatsoever. So who 0:24:13.760 --> 0:24:17.960 found them and how they were found is very important. Now, 0:24:18.000 --> 0:24:21.960 just moments after being very confused as to what happened, 0:24:23.040 --> 0:24:26.360 JF was asked by one of the other defense lawyers 0:24:26.720 --> 0:24:31.200 for one of the women Kevin's co accused if duck 0:24:31.320 --> 0:24:36.840 Hart had shown her that evidence, and the answer was yes, 0:24:38.240 --> 0:24:41.159 And a number of questions were asked. Now they are 0:24:41.200 --> 0:24:44.159 quite long questions, so we don't need to repeat them, 0:24:44.560 --> 0:24:48.280 but as to exactly where the clothing was, and that 0:24:48.440 --> 0:24:52.080 was described by the defense lawyer, and the answer came 0:24:52.160 --> 0:24:54.879 back yes. And this went on for quite a number 0:24:54.880 --> 0:24:58.000 of minutes. And so here once again we can see 0:24:58.000 --> 0:25:03.080 a witness who, based on one lot of questioning from 0:25:03.119 --> 0:25:07.639 the prosecutor, has no idea how they ever saw or 0:25:07.720 --> 0:25:13.560 found that forensic evidence, and then under cross examination from 0:25:13.600 --> 0:25:18.560 the defense lawyer, suddenly can explain how that evidence was 0:25:18.600 --> 0:25:23.200 found by them, who showed them and where it was. Now, 0:25:23.359 --> 0:25:27.600 to be fair, we don't know the accuracy of that 0:25:27.680 --> 0:25:33.000 witness's statement. All we do know is once again the 0:25:33.080 --> 0:25:38.640 witness's statement was absolutely contradictory. And the reason behind this 0:25:38.680 --> 0:25:44.639 contradictory statement was this yes syndrome, This gratuitous concurrence. So 0:25:45.200 --> 0:25:48.200 once again we have another example of just how important 0:25:48.280 --> 0:25:53.240 it is in Kevin Henry's trial, and it goes to 0:25:53.320 --> 0:26:00.320 this issue. If every witness was giving contradictory accounts, and 0:26:00.359 --> 0:26:04.920 if every witness was giving multiple statements, and they did 0:26:05.080 --> 0:26:09.600 give contradictory accounts and multiple statements, how on earth could 0:26:09.640 --> 0:26:13.919 a jury find Kevin Henry guilty beyond a reasonable doubt 0:26:14.720 --> 0:26:18.920 with no forensic evidence, no eye witness, and not a 0:26:18.960 --> 0:26:23.239 single witness being able to give a solid account of 0:26:23.280 --> 0:26:29.800 what happened without contradicting themselves multiple times. Now again, this 0:26:29.880 --> 0:26:33.480 is not to blame the witnesses. This is the fault 0:26:33.520 --> 0:26:38.000 of the police and the prosecutors. They knew this was 0:26:38.040 --> 0:26:41.000 going on, they knew because of the statements they had 0:26:41.119 --> 0:26:44.280 taken that they were inaccurate, and they knew why this 0:26:44.480 --> 0:26:47.560 was occurring, but they pushed through to get a conviction. 0:26:48.640 --> 0:26:52.200 And where this comes back to the parole of Kevin 0:26:52.240 --> 0:26:58.800 Henry is that quite clearly, after twenty five years, employees 0:26:58.840 --> 0:27:04.520 of the Queensland government, previously the police and prosecutor and 0:27:04.600 --> 0:27:07.840 now the Parole Board do not understand the issue of 0:27:07.880 --> 0:27:14.000 gratuitous concurrence and are in fact using it against Kevin Henry. 0:27:14.600 --> 0:27:17.919 This is not justice. It was not a fair trial, 0:27:18.680 --> 0:27:21.679 and it is not fair to ask a man who 0:27:21.760 --> 0:27:26.720 has maintained his innocence for twenty five years to change 0:27:26.880 --> 0:27:31.399 that view that he believes absolutely and which he will 0:27:31.440 --> 0:27:35.520 not waiver from, because it's the truth that a parole 0:27:35.560 --> 0:27:38.840 Board can suggest to him, based on a few answers 0:27:39.760 --> 0:27:42.840 that this issue of gratuitous concurrence is not a problem 0:27:42.960 --> 0:27:46.320 for him, and as they said, he did not have 0:27:46.400 --> 0:27:50.639 difficulty with gratuitous concurrence, and their desire for him to 0:27:50.760 --> 0:27:57.080 therefore admit his guilt and undertake an offender's program something 0:27:57.160 --> 0:28:01.159 that Kevin is not keen to do because he is 0:28:01.240 --> 0:28:05.000 not an offender. He is an innocent man. So quite 0:28:05.080 --> 0:28:09.000 clearly the Parole Board needs to take a new look 0:28:09.480 --> 0:28:13.320 at the issue of gratuitous concurrence, and quite clearly this 0:28:13.480 --> 0:28:18.320 new review of the Parole Board must further look at 0:28:18.320 --> 0:28:22.760 the way aboriginal entires Strait Islander people are treated in 0:28:22.840 --> 0:28:27.600 Queensland by the Parole Board, by the courts, and most 0:28:27.640 --> 0:28:32.080 importantly by the police, so that no one else finds 0:28:32.080 --> 0:28:35.680 them in the situation that Kevin Henry does. Having spent 0:28:35.840 --> 0:28:39.920