Speaker 1: Just before nine o'clock last night, the jury returned guilty
Speaker 1: verdicts against all three defendants.
Speaker 2: It was absolute shambles, to tell you the truth, just
Speaker 2: absolutely really colored blood on his clothing the day after
Speaker 2: the alleged attamp.
Speaker 3: On a shallow mud bank and the Fitzroy River.
Speaker 1: Basically, I think most of the people are used to
Speaker 1: me are good people.
Speaker 4: I think a really important question we need to ask
Speaker 4: is how many Indigenous prisoners in Australia are innocent.
Speaker 2: This is Curtain, a podcast where we pulled back the
Speaker 2: blinds to shine a light on the darkest parts of
Speaker 2: our justice system and ask who are the victims.
Speaker 5: I'm Amy Maguire and.
Speaker 4: I'm Martin Hodgson, a senior advocate for the Foreign Prisoner
Speaker 4: Support Service. And a warning, this series contains the names
Speaker 4: of deceased peoples and has distressing content that might upset
Speaker 4: some listeners.
Speaker 5: This week Australia's media descended on Rockhampton and all eyes
Speaker 5: were on the Fitzroy River, which runs through the center
Speaker 5: of town. You have heard a lot about this river
Speaker 5: after the past twenty one episodes occurred in the podcast.
Speaker 5: It is the place where Linda lost her life on
Speaker 5: the night of August thirty one, nineteen ninety one. Now
Speaker 5: in twenty seventeen, it's on television as the waters rise.
Speaker 5: It's being used as a backdrop by mainstream news anchors
Speaker 5: who are broadcasting very close to Tanuba House, the site
Speaker 5: of the nine nine one murder and one of the
Speaker 5: greatest injustices in this town.
Speaker 1: And yet while there are acres of reportage as the
Speaker 1: Fitzroy River swells, it's only now that the mainstream media
Speaker 1: are starting to pick up on this injustice, the wrongful
Speaker 1: conviction of Kevin Henry, who's been sitting in jail for
Speaker 1: twenty five years, serving time for a crime he did
Speaker 1: not commit. Yes, he is still in jail. We can
Speaker 1: tell you that this month Kevin Henry's case again went
Speaker 1: before the parole board.
Speaker 5: Remember we told you earlier on in the year that
Speaker 5: the Queensland Government has committed to the recommendations of a
Speaker 5: review into the state's parole system. It hasn't been reformed
Speaker 5: for over eighty years, and judging from Kevin's case, little
Speaker 5: has changed.
Speaker 1: In this episode, we're going to tell you why Kevin
Speaker 1: Henry has again been knocked back for parole for the
Speaker 1: second time in just a couple of months. The decision
Speaker 1: of the Parole Board revolves around a number of technicalities.
Speaker 1: But first it's important to understand that under Queensland law,
Speaker 1: the Parole Board is required to accept the findings of
Speaker 1: the initial trial and the comments of the sentencing judge.
Speaker 1: So they can't look at new evidence and they can't
Speaker 1: decide that Kevin Henry is now innocent. But what they
Speaker 1: can do is look at the trial and Kevin's behavior,
Speaker 1: his conducting of programs over the years, psychologists reports, and
Speaker 1: the way Kevin would impact on the community and how
Speaker 1: he would go upon release, whether he would be likely
Speaker 1: to reoffend or not reoffend. And the primary reason why
Speaker 1: the Parole Board have most recently knocked back Kevin's parole
Speaker 1: is largely based, according to them, on a discussion they
Speaker 1: had with Kevin on June tenth last year, in twenty sixteen,
Speaker 1: and they say it was because of the applicants' admissions
Speaker 1: before the Parole Board on that date.
Speaker 2: Now, in order to understand that, you'll also have to
Speaker 2: understand that the parole decision is based also on cultural differences.
Speaker 2: We've told you before that the parole system discriminates against
Speaker 2: Aboriginal people, and when looking at Kevin's case, it's not
Speaker 2: hard to see why.
Speaker 3: Over the past.
Speaker 2: Decade, Martin and I have been separately working on the
Speaker 2: case of the Barable murders, Mardin in his capacity as
Speaker 2: a lawyer and myself as a journalist. Those were three
Speaker 2: Aboriginal children who were murdered on the Bowable Mission within
Speaker 2: a few months of each other, from the year nineteen
Speaker 2: ninety to nineteen ninety one.
Speaker 1: The tragic murders of Colleen Craig Walker, Clinton Speedy Duro,
Speaker 1: and Evelyn Greenup all occurred only a few months before
Speaker 1: Linda died. Because of flaws in the police investigation and
Speaker 1: in the judicial process, the only man who has ever
Speaker 1: been in the sights of the law over their deaths
Speaker 1: has never been convicted. After twenty five years of campaigning,
Speaker 1: the families have been instrumental in getting him back before
Speaker 1: for the court he's due to appear later in the year.
Speaker 1: He has been acquitted over the murder of Clinton and Evelyn,
Speaker 1: and Colleen has never been found.
Speaker 2: Now. During Evelyn Greenut's trial, a linguistics expert named Diana
Speaker 2: Eads attended and wrote a report on what she saw
Speaker 2: in the trial, she identified key differences in how Duras
Speaker 2: assessed Aboriginal witnesses compared to non Aboriginal witnesses.
Speaker 1: Now, Doctor Diana ads it's important to understand specializes in
Speaker 1: critical socio linguistics, language in the legal process, and intercultural
Speaker 1: communication and this is particularly involving Australian Aboriginal people who
Speaker 1: speak varieties of the English language as well as their
Speaker 1: own languages. And she's also the author of the book
Speaker 1: Aboriginal Ways of Using Language Now. In addition to her
Speaker 1: work on the Bouerville trial, she was also instrumental in
Speaker 1: assisting an Aboriginal woman in Queensland overcome one of the
Speaker 1: greatest miscarriages of justice in Australian legal history. The Aboriginal
Speaker 1: woman was subject of years of domestic violence and sexual
Speaker 1: abuse which resulted in her killing her partner who was
Speaker 1: committing that abuse against her. But despite this being a
Speaker 1: murder trial, the entire trial, including the swearing in of
Speaker 1: the jury, hearings from both sides, the jury returning, took
Speaker 1: just over three hours. This was not justice. After six
Speaker 1: years in Boggo Road Prison in Brisbane, the conviction was
Speaker 1: appealed and doctor Reeds was instrumental in showing that the
Speaker 1: way lawyers, police and all those involving the case communicated
Speaker 1: with this average woman meant that all those extenuating circumstances,
Speaker 1: the fact that she'd been subjected to years of abuse,
Speaker 1: subjected to years of sexual abuse as well, had never
Speaker 1: been presented at the trial. And this is what she
Speaker 1: has to say about why that occurred.
Speaker 3: I had the previous year published a handbook through the
Speaker 3: Queensland Law Society called Aboriginal English and the Law and
Speaker 3: the things that I was recognizing just from that brief
Speaker 3: TV interview about the obvious evidence about the silence in
Speaker 3: that interview long silences, not many pauses, long silences. That
Speaker 3: was also things I'd written about to look for lawyers
Speaker 3: in ninety two. So I was then asked to provide
Speaker 3: an expert report for her second for that appeal against
Speaker 3: the conviction. That was the appeal against the conviction, and
Speaker 3: the grounds of the appeal were that from that the
Speaker 3: lawyers had set up, the grounds of the appeal were
Speaker 3: that her own lawyers hadn't got her story and were
Speaker 3: unable to defend her. And well, the good the good
Speaker 3: thing is that she was successful in that appeal that
Speaker 3: the judges recognized. And there were three grounds on which
Speaker 3: the that the appeal was successful, and one was related
Speaker 3: to now I have to get this right because I
Speaker 3: focused on linguistics, But one was related to the the
Speaker 3: way that victims of trauma don't always remember everything.
Speaker 2: Uh.
Speaker 3: And one that there was another social, social, sociologic, social work,
Speaker 3: psychology grounds. The ground that I was prepared to report
Speaker 3: on was that the evidence that I was able to
Speaker 3: gather that made a strong suggestion that her lawyers didn't
Speaker 3: know how to communicate with Aboriginal people, and the pressure
Speaker 3: that they were under to get you know, they were
Speaker 3: legal aid lawyers working under tremendous pressure. The pressure they
Speaker 3: were under to go to the prison, get her story,
Speaker 3: get answers to some questions, come back and prefer her defense.
Speaker 3: They never got the chance to hear his story, while
Speaker 3: in the same time period she was telling her story
Speaker 3: actually to a counselor who was writing things down and
Speaker 3: who encouraged her to write things down. The sad thing
Speaker 3: is that those things were never taken up by the lawyers.
Speaker 3: But so she had the story and she knew what
Speaker 3: it was, and she was able she was able to
Speaker 3: say the grounds for why she had to she had
Speaker 3: to get the knife, et cetera. But her lawyers never
Speaker 3: heard it. She was never defended. And so that was
Speaker 3: an important issue about communicating people with people in my
Speaker 3: socio linguistic report. It wasn't about particular words, it wasn't
Speaker 3: about accent. It was about a few key things, and
Speaker 3: one was that communication, how you enable a person to
Speaker 3: tell a difficult story, and that whole issue around the
Speaker 3: way silence is used it interpreted, and also about how
Speaker 3: many non Aboriginal people interviewing Aboriginal people, particularly under pressure,
Speaker 3: they don't wait for the answer, and there is about
Speaker 3: that we can talk about that. But also they often
Speaker 3: frame questions in such a way that it's very easy
Speaker 3: to get people just to say yes. But yes mightn't
Speaker 3: mean I agree with what you're saying. It might mean
Speaker 3: something like you asking me all these questions. If I
Speaker 3: keep on saying yes, somehow we'll get through this interview
Speaker 3: and we can sort it all out later. And of
Speaker 3: course in the legal system you can't.
Speaker 2: Now what doctor Diana Eads was describing. There is what
Speaker 2: we've come to know as good sewardous concurrence, and it's
Speaker 2: also known as the yes syndrome. There's a perception that
Speaker 2: the differences in the way Aboriginal people talk, particularly in
Speaker 2: illegal sense, is confined to remote Australia. But in both
Speaker 2: cases Dr Eves is talking about cases that involved Aboriginal
Speaker 2: people living regionally in urban areas. Martin did this issue
Speaker 2: of gratuitous concurrence? How did it come up in relation
Speaker 2: to Kevin Henry's case.
Speaker 1: Well, I think it's a very good point you raise
Speaker 1: that it's not just remote, it's also regional, and it's
Speaker 1: for Aboriginal people right around Australia. In fact, as the
Speaker 1: title of doctor Reed's book says, it's Aboriginal ways of
Speaker 1: using English, so it's even for Aboriginal people whose first
Speaker 1: language is English. And what happened in Kevin's meeting with
Speaker 1: the parole Board is just as we know it as.
Speaker 1: The yes syndrome is that when the Parole Board was
Speaker 1: asking Kevin questions, most of his responses were simply yes,
Speaker 1: and so rather than him being given an opportunity to
Speaker 1: explain what he meant or being listened to, simply the
Speaker 1: way the questions were framed by the Parole Board meant
Speaker 1: that Kevin simply gave a number of yes answers. There's
Speaker 1: a few reasons why this takes place. One is to
Speaker 1: simply placate the person asking the question. The other issue
Speaker 1: is that there can be a misunderstanding as to why
Speaker 1: the question is being asked, the importance of the question,
Speaker 1: and it's also a very stressful environment in which these
Speaker 1: questions are being asked. But basically, what it comes down
Speaker 1: to is the Parole Board is saying that in this interview,
Speaker 1: Kevin broke his twenty five years of maintaining his innocence.
Speaker 1: Now it's important to point out he never actually did that.
Speaker 1: Kevin has always mained his innocence. But one or two
Speaker 1: of the questions that were asked, which perhaps Kevin didn't
Speaker 1: understand or which perhaps weren't explained to him properly, resulted
Speaker 1: in Kevin giving the answer yes. And therefore, based on
Speaker 1: that question, the Parole Board is then saying that Kevin
Speaker 1: didn't exactly admit to the crime, but didn't maintain his innocence.
Speaker 1: And they went on to say, and I quote in
Speaker 1: their report, that history is indicated to the board that
Speaker 1: the applicant did not have difficulty with gratuitous concurrence during
Speaker 1: those years, and what they're talking about there is over
Speaker 1: the last number of years when Kevin has appeared before
Speaker 1: them as a parole board. But of course what they've
Speaker 1: said that he didn't have a problem with gratuitous concurrence
Speaker 1: is one hundred percent inaccurate, and it shows the exact
Speaker 1: issues that gratuitous concurrence raises. That here a parole board
Speaker 1: meeting with an individual they barely know, an individual who
Speaker 1: has maintained his innocence for twenty five years and who
Speaker 1: attempted to do so again in their presence, walked away
Speaker 1: believing he'd done exactly the opposite, just as the yes
Speaker 1: syndrome says, in a question where Kevin probably should have
Speaker 1: said no, he said yes. And from that they have
Speaker 1: changed the course of his life. And so here, once again,
Speaker 1: as it did at trial, as it did in his
Speaker 1: initial interview, and as it has done in Kevin trying
Speaker 1: to get out after twenty five years, this issue of
Speaker 1: gratuitous concurrence has plagued Kevin's life.
Speaker 2: Now it's obvious that the proboard didn't really understand what
Speaker 2: gratuito's concurrence was that Martin. Do they have an excuse
Speaker 2: for using it in the wrong way? Do you think.
Speaker 1: I really don't think there's an excuse for them not
Speaker 1: to understand the issue, particularly given it's so important and
Speaker 1: has been demonstrated in legal precedent in Queensland with the
Speaker 1: Aboriginal woman we spoke about earlier having her sentence totally
Speaker 1: quashed by the Supreme Court of Queensland largely based on
Speaker 1: this issue. But the study of this issue and the
Speaker 1: explaining of it goes back to even nineteen eighty where
Speaker 1: there was a book a university journal called Human Studies,
Speaker 1: and this was produced by the University of California, and
Speaker 1: Ken Lieberman, who wrote about the ambiguity and gratuitous concurrence
Speaker 1: in intercultural communication, cited the most obvious example in all
Speaker 1: of human communication where this arises, and this is what
Speaker 1: he says, that it's between the interaction between European Australians
Speaker 1: and Aboriginal Australians, where communication is cross modal and therefore
Speaker 1: can break down. So there we have a university professor
Speaker 1: explaining at more than a decade before Kevin was even sentenced,
Speaker 1: and we also have Australian lawyers who have written about
Speaker 1: this over the years. One is David Coleman, who has
Speaker 1: spoken about the cultural disadvantage that Aboriginal people experience under
Speaker 1: interrogation and particularly cross examination because of this particular issue
Speaker 1: gratuitous concurrence, and that people are likely Aboriginal people are
Speaker 1: likely to get themselves into all sorts of trouble, life
Speaker 1: changing trouble simply because, as he says, based on whether
Speaker 1: they say yes or no to a question where the
Speaker 1: evidence suggests they will say yes. And if the person
Speaker 1: framing the question knows this, they can exploit it, and
Speaker 1: it means they can get the outcomes that they desire.
Speaker 1: If the person doesn't understand this, it means they will
Speaker 1: totally misunderstand the answers that that Aboriginal person is giving.
Speaker 2: One and we obviously saw this was Kevin Henry's confession,
Speaker 2: which we've discussed previously. But what other examples of gratuitous
Speaker 2: concurrence have aism already in this trial?
Speaker 1: Okay, so the issues we've spoken about in Kevin's confession
Speaker 1: have to do with Kevin obviously saying yes a lot,
Speaker 1: as we know, and also having trouble understanding the questions
Speaker 1: that he's being asked. But it was not just Kevin
Speaker 1: who had this issue throughout his criminal trial, every single
Speaker 1: Indigenous witness on the stand end answered many of the
Speaker 1: questions put to them by the prosecutor with a yes,
Speaker 1: and then under cross examination they were asked the same
Speaker 1: question but leading to the opposite scenario having taken place.
Speaker 1: So where the prosecutor might have been asking just two
Speaker 1: plus two equal four, their answer came back yes. And
Speaker 1: when the defense attorney says to two plus two equal seven,
Speaker 1: their answer came back yes again. So there was a
Speaker 1: great deal of confusion throughout the trial, which is that
Speaker 1: the witnesses, particularly the Indigenous witnesses, were put questions to
Speaker 1: them that a they did not understand and b where
Speaker 1: they simply answered yes, despite those questions being asked twice
Speaker 1: and very differently. So I think we can understand why
Speaker 1: the jury might have been terribly confused as to what
Speaker 1: people were saying and to refresh people's memory. Remember, the
Speaker 1: jury had to come back three times for direction from
Speaker 1: the trial judge. This is highly unusual. And some of
Speaker 1: this did have to relate to the witness's answers. And
Speaker 1: we also saw on the stand that certain witnesses simply
Speaker 1: contradicted their own statements that they'd given, and that's because
Speaker 1: those witnesses, just like Kevin Henry. And remember, many of
Speaker 1: these witnesses had not committed any crime at all, simply
Speaker 1: gave yes answers to almost every question the police asked them.
Speaker 1: They were clearly under a huge amount of stress. They
Speaker 1: were perhaps under duress and being pressured to give statements,
Speaker 1: and their answers, no matter what the question, were coming back.
Speaker 2: Yes.
Speaker 1: Now, one more thing I have to remind you about.
Speaker 1: Almost all of these witnesses gave multiple statements, and almost
Speaker 1: every single one of those statements was contradictory, almost exclusively.
Speaker 1: When witnesses were asked in their first statement who was involved,
Speaker 1: they were able to give the names. And then when
Speaker 1: they were asked if they were sure, yes, are you
Speaker 1: sure you saw this person do this? Yes, Then when
Speaker 1: they gave their second statements and the police introduced the
Speaker 1: name of Kevin Henry, even though the witnesses had never
Speaker 1: raised his name, or if his name had been raised
Speaker 1: in the past, had said he simply wasn't there. Suddenly,
Speaker 1: when they were pushed that yes, syndrome kicked in again,
Speaker 1: and people who had said they didn't even see Kevin
Speaker 1: Henry that night were suddenly seeing Kevin Henry in every
Speaker 1: scenario the police put to them, not by describing that scenario,
Speaker 1: but simply by saying yes. So the issue of gratuitous
Speaker 1: concurrence played an enormous role in the trial of Kevin Henry,
Speaker 1: and perhaps an even greater role than any other murder
Speaker 1: trial you're likely to come across, given that the accused,
Speaker 1: Kevin Henry, had no forensic evidence presented against him, no
Speaker 1: DNA evidence presented against him, pleaded not guilty, and had
Speaker 1: not a single eye witness give evidence to say that
Speaker 1: they saw him commit any crime whatsoever.
Speaker 2: So what specific examples do you have?
Speaker 1: So during the trial, First we'll take the example of
Speaker 1: witness SM, who we've spoken about in the past. S
Speaker 1: M was put to her by the prosecutor that they
Speaker 1: had not been drinking throughout that day, and the answer
Speaker 1: was yes. The questions continued, while everyone else had been drinking.
Speaker 1: You didn't drink until after lunchtime? Answer yes. Now under
Speaker 1: cross examination, Kevin's defense attorney believed SM had been drinking,
Speaker 1: and so they asked the question, you had been drinking,
Speaker 1: hadn't you during the day? Answer yes, you'd been drinking
Speaker 1: before lunchtime that day? Answer yes, Now This very basic
Speaker 1: example shows that four answers were given. All of them
Speaker 1: were yes, but the two contradict each other. So two
Speaker 1: yess say not drinking and not before lunchtime. The second
Speaker 1: two yeses say yes drinking and yes before lunchtime. Now
Speaker 1: there were also other examples. Will take Witness JF, who
Speaker 1: was shown some of the key forensic evidence by duck Hart.
Speaker 1: Witness JF was shown this evidence the following morning, after
Speaker 1: Linda had been murdered and after her body had been found.
Speaker 1: The particular evidence was some of Linda's clothing that was
Speaker 1: found just near to nuber house. Now, asked by the
Speaker 1: prosecutor why she'd gone to where that evidence was who'd
Speaker 1: shown it, JF really couldn't give an answer. JF attempted
Speaker 1: to describe how it might have taken place, but conceded
Speaker 1: that during her statements she'd given multiple answers and didn't
Speaker 1: really understand what the police were trying to get to.
Speaker 1: But the prosecutor pressed forward and simply moved past this issue.
Speaker 1: But this was quite crucial. We're talking about Linda's clothes,
Speaker 1: key pieces of forensic evidence that remember, did not have
Speaker 1: any of Kevin Henry's DNA on them whatsoever. So who
Speaker 1: found them and how they were found is very important. Now,
Speaker 1: just moments after being very confused as to what happened,
Speaker 1: JF was asked by one of the other defense lawyers
Speaker 1: for one of the women Kevin's co accused if duck
Speaker 1: Hart had shown her that evidence, and the answer was yes,
Speaker 1: And a number of questions were asked. Now they are
Speaker 1: quite long questions, so we don't need to repeat them,
Speaker 1: but as to exactly where the clothing was, and that
Speaker 1: was described by the defense lawyer, and the answer came
Speaker 1: back yes. And this went on for quite a number
Speaker 1: of minutes. And so here once again we can see
Speaker 1: a witness who, based on one lot of questioning from
Speaker 1: the prosecutor, has no idea how they ever saw or
Speaker 1: found that forensic evidence, and then under cross examination from
Speaker 1: the defense lawyer, suddenly can explain how that evidence was
Speaker 1: found by them, who showed them and where it was. Now,
Speaker 1: to be fair, we don't know the accuracy of that
Speaker 1: witness's statement. All we do know is once again the
Speaker 1: witness's statement was absolutely contradictory. And the reason behind this
Speaker 1: contradictory statement was this yes syndrome, This gratuitous concurrence. So
Speaker 1: once again we have another example of just how important
Speaker 1: it is in Kevin Henry's trial, and it goes to
Speaker 1: this issue. If every witness was giving contradictory accounts, and
Speaker 1: if every witness was giving multiple statements, and they did
Speaker 1: give contradictory accounts and multiple statements, how on earth could
Speaker 1: a jury find Kevin Henry guilty beyond a reasonable doubt
Speaker 1: with no forensic evidence, no eye witness, and not a
Speaker 1: single witness being able to give a solid account of
Speaker 1: what happened without contradicting themselves multiple times. Now again, this
Speaker 1: is not to blame the witnesses. This is the fault
Speaker 1: of the police and the prosecutors. They knew this was
Speaker 1: going on, they knew because of the statements they had
Speaker 1: taken that they were inaccurate, and they knew why this
Speaker 1: was occurring, but they pushed through to get a conviction.
Speaker 1: And where this comes back to the parole of Kevin
Speaker 1: Henry is that quite clearly, after twenty five years, employees
Speaker 1: of the Queensland government, previously the police and prosecutor and
Speaker 1: now the Parole Board do not understand the issue of
Speaker 1: gratuitous concurrence and are in fact using it against Kevin Henry.
Speaker 1: This is not justice. It was not a fair trial,
Speaker 1: and it is not fair to ask a man who
Speaker 1: has maintained his innocence for twenty five years to change
Speaker 1: that view that he believes absolutely and which he will
Speaker 1: not waiver from, because it's the truth that a parole
Speaker 1: Board can suggest to him, based on a few answers
Speaker 1: that this issue of gratuitous concurrence is not a problem
Speaker 1: for him, and as they said, he did not have
Speaker 1: difficulty with gratuitous concurrence, and their desire for him to
Speaker 1: therefore admit his guilt and undertake an offender's program something
Speaker 1: that Kevin is not keen to do because he is
Speaker 1: not an offender. He is an innocent man. So quite
Speaker 1: clearly the Parole Board needs to take a new look
Speaker 1: at the issue of gratuitous concurrence, and quite clearly this
Speaker 1: new review of the Parole Board must further look at
Speaker 1: the way aboriginal entires Strait Islander people are treated in
Speaker 1: Queensland by the Parole Board, by the courts, and most
Speaker 1: importantly by the police, so that no one else finds
Speaker 1: them in the situation that Kevin Henry does. Having spent
Speaker 1: a lifetime behind bars for a crime he did not commit.
Speaker 2: So, basically, in summary, the Parole Board's main reason is
Speaker 2: that Kevin Henry has in some part admitted guilt and
Speaker 2: now he won't do an offender's program. That's basically, in
Speaker 2: summary why they won't grant him parole.
Speaker 1: Yeah, that's right. So the reason that those arguing for
Speaker 1: Kevin's parole place on Kevin maybe having misspoken is gratuitous concurrence,
Speaker 1: and the Parole b what's saying, no, we don't believe
Speaker 1: he had a problem with that. He's admitted to us
Speaker 1: in some part that he's committed the crime. Therefore he
Speaker 1: should do the offender's program, and that leaves us at
Speaker 1: a stalemate where, because of a misunderstanding, Kevin Henry's parole
Speaker 1: has been denied and he'll remain in prison until his
Speaker 1: next parole date because of this issue.
Speaker 2: That you raise. Do you think it would happen to
Speaker 2: a white prisoner.
Speaker 1: I don't think it would happen to a white prisoner.
Speaker 1: In fact, one thing we know that the Supreme Court
Speaker 1: spoke about all those years ago when they set an
Speaker 1: Aboriginal woman free who'd been a victim of brutal violence
Speaker 1: for many years was that Aboriginal people should be entitled
Speaker 1: to either people assisting them when they're doing these sort
Speaker 1: of interviews, having an interpreter, and that the people asking
Speaker 1: these questions should be aware of the issue of gratuitous
Speaker 1: concurrence and understand if it's occurring, and to rephrase their questioning,
Speaker 1: and to make sure they don't simply trap a person
Speaker 1: with yes or no questions, that they don't use gratuitous
Speaker 1: concurrence to get the answers they want, but that they
Speaker 1: conduct the interview, whether they be police, prosecutors or parole
Speaker 1: to get the truth, and that it's a truth that
Speaker 1: the person, the Aboriginal person giving the answers is able
Speaker 1: to say in a way that they understand, Yes, this
Speaker 1: is what I'm trying to tell you. And had the
Speaker 1: Parole board asked Kevin Henry directly, are you now confessing
Speaker 1: to this crime, he of course would have said no,
Speaker 1: I never did it, and I maintain my innocence as
Speaker 1: I have to every single person I have ever spoken
Speaker 1: to for twenty five years. But they didn't attempt to
Speaker 1: do that. They simply asked questions, never sought to see
Speaker 1: if Kevin understood the process, never put it to him
Speaker 1: that he'd maybe just made a slip of the tongue
Speaker 1: that now changed things. They simply progressed on and then
Speaker 1: wrote the letter back denying parole. So I don't think
Speaker 1: this would ever happen to a person non Indigenous person,
Speaker 1: particularly a non Indigenous person with high to normal literacy levels.
Speaker 1: This is really an issue for those who are raised
Speaker 1: where English is perhaps not their first language, or as
Speaker 1: we've heard from doctor Reed's, where Aboriginal people have a
Speaker 1: way of using English that is not the same as
Speaker 1: the way everyone else uses English. This is known to
Speaker 1: the parole Board, it's known to lawyers, as we've discussed,
Speaker 1: it's been worked on by academics for nearly forty years,
Speaker 1: and yet in the case of Kevin Henry, they continue
Speaker 1: to get it wrong.
Speaker 2: So, as a person running the case for Kevin Henry,
Speaker 2: what's the next step? What can you actually do about this?
Speaker 1: So our next step is to once again attempt to
Speaker 1: explain to the parole Board the issue of gratuitous concurrence
Speaker 1: and to have them consider that in the decision making process,
Speaker 1: and also to have them consider the way it's impacted
Speaker 1: upon Kevin's Police interview Kevin's trial and their own interviewing
Speaker 1: of Kevin Henry, and also as we seek a pardon
Speaker 1: from the Governor of Queensland and have the Attorney General's
Speaker 1: Office re examine the case of Kevin Henry to ensure
Speaker 1: they are left with absolutely no doubt that the issue
Speaker 1: of gratuitous concurrence exists. It's a field of study for academics,
Speaker 1: it's the practical work of people like doctor Diana Eads,
Speaker 1: and with someone like Kevin Henry, it's the reason he's
Speaker 1: spent twenty five years in prison and them not understanding
Speaker 1: it is not acceptable. The work's been done, the academic
Speaker 1: work is there, the books are there, and the precedent
Speaker 1: has been long since set by the Queensland Supreme Court
Speaker 1: that this is to be taken into account and it's
Speaker 1: time it was taken into account in the case of
Speaker 1: Kevin Curtin Henry.
Speaker 2: That was Episode twenty two. Join us next week for
Speaker 2: Curson