Speaker 1: Good.
Speaker 2: Just before nine o'clock last night, the jury returned guilty
Speaker 2: verdicts against all three defendants. It was absolutely shambles, to
Speaker 2: tell you the truth, just absolutely really heading blood on
Speaker 2: his clothing the day after the alleged a top on.
Speaker 1: A shallow mud bank and it fits through a river.
Speaker 3: Basically, I think most of the people are used to
Speaker 3: me are good people.
Speaker 1: I think a really important question we need to ask
Speaker 1: is how many Indigenous prisoners in Australia are innocent.
Speaker 2: This is Curtain, a podcast where we pull 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. I'm
Speaker 2: Amy Maguire and I'm.
Speaker 1: Martin Hodgson, a senior advocate for the Foreign Prisoner Support Service.
Speaker 1: And a warning, this series contains the names of deceased
Speaker 1: peoples and has distressing content that might upset some listeners.
Speaker 3: Welcome to episode fifty of Curtain, the podcast. First this week,
Speaker 3: before we get into more information about Kevin Henry's case
Speaker 3: and some of our new findings and what we've uncovered,
Speaker 3: There's been some new data come out and new reports
Speaker 3: about exonerations in the United States and the sheer number
Speaker 3: of people who have been locked up for decades, some
Speaker 3: of them on death row for crimes they never committed,
Speaker 3: and have finally been exonerated and released. Amy, You've been
Speaker 3: looking at these articles discussing this phenomena this week. What's
Speaker 3: the overview of what's been going on.
Speaker 2: Yeah, so there are quite a few articles in the
Speaker 2: US media and all to say, the British media about
Speaker 2: a new report released by the University of Michigan Law
Speaker 2: School and the Michigan State University College of Law. And
Speaker 2: they actually have a National Registry of Exonerations and they
Speaker 2: released a report this week and on their website they
Speaker 2: say there's currently been two one hundred and eighty three exonerations,
Speaker 2: so that's over the period that they've been counting, and
Speaker 2: they've talied that that's more than nineteen thousand, one hundred
Speaker 2: and ninety years lost. So they tallying up all of
Speaker 2: those prison sentences of innocent people, of innocent people, innocent
Speaker 2: people in America have lost nineteen thousand, one hundred and
Speaker 2: ninety years. But specifically, this report looked at the most
Speaker 2: recent exonerations and they estimated that in the United States,
Speaker 2: one hundred and thirty nine convicted defendants were exonerated last year,
Speaker 2: and I thought it was very interesting because The New
Speaker 2: York Times ran an article focusing specifically on how much
Speaker 2: a lot of those exonerations can be put down to
Speaker 2: the work of dedicated lawyers and private organizations that were
Speaker 2: actually focusing specifically on wrongful convictions. And so what the
Speaker 2: New York Times reported was those such professional exoner which
Speaker 2: we call which they called them, were responsible for more
Speaker 2: than half of the exonerations in twenty and seventeen, according
Speaker 2: to that report, and that's they also broke down a
Speaker 2: lot of those exonerations, so eighty of those exonerations were
Speaker 2: due to private organizations actually working to overturn wrongful convictions.
Speaker 2: The years lost just last year was one four hundred
Speaker 2: and seventy eight years. On average, each defendant exonerated last
Speaker 2: year spent at least ten point six years behind bars,
Speaker 2: so that's adding up to almost one thy five hundred
Speaker 2: years spent waiting just to be cleared. Specifically, looking at
Speaker 2: eggxzonerations caused by official misconduct, so that includes things like
Speaker 2: officers threatening witnesses, analysts falsifying tests, or officials withholding evidence
Speaker 2: that could have cleared the defendant those were eighty four,
Speaker 2: So eighty four exonerations were due to official misconduct and
Speaker 2: sixty six exonerations were due to no crime, So defendants
Speaker 2: who were wrongfully convicted in cases in which there was
Speaker 2: no crime at all committed. So this included things like
Speaker 2: a dozen drug possession cases, eleven child sex abuse cases,
Speaker 2: and nine murder cases. So there's very interesting statistics there
Speaker 2: from the United States, particularly around the fact that half
Speaker 2: of those exonerations, those one hundred and thirty nine exonerations,
Speaker 2: were due to just dedicated people working specifically on wrongful convictions.
Speaker 2: Midin when you hear stats like that, does that surprise
Speaker 2: you or what do you think when you when you
Speaker 2: actually hear those sort of reports and those sort of
Speaker 2: that sort of data.
Speaker 3: I think there's two really concerning things coming out of
Speaker 3: the information we received this week. Firstly, the sheer number
Speaker 3: of people who are being wrongfully convicted. The fact that
Speaker 3: so much many of these people were convicted of crimes
Speaker 3: that simply never took place, and that should be hugely
Speaker 3: problematic to anyone. This is not a bungled investigation. This
Speaker 3: is police making up crimes and clearly imprisoning people. And
Speaker 3: we know it's largely African American, poor white people and
Speaker 3: Latinos who are overrepresented in prison. The second thing that's
Speaker 3: really troubling is that the work is not being done
Speaker 3: by law enforcement of any kind, not even internal affairs.
Speaker 3: That the majority of this is being done by concerned
Speaker 3: citizens groups, individual lawyers, but more so small organizations right
Speaker 3: around the country. And so what we're having to see
Speaker 3: is just as we're doing here, groups with very small
Speaker 3: amounts of resources going up against the state, and we
Speaker 3: know just how it is to overturn a conviction. So
Speaker 3: for this many people to be exonerated again, we have
Speaker 3: to think how many people in the US are in
Speaker 3: prison who are innocent? And it goes to the point
Speaker 3: we've always made, which is this open question how many
Speaker 3: indigenous prisoners are innocent in Australia. And one thing I
Speaker 3: would say is Australians have a habit of looking at
Speaker 3: the US and we watch all their crime shows. We
Speaker 3: know about the overrepresentation of African Americans in US jails
Speaker 3: and it is bad. In fact, African American males are
Speaker 3: five times more likely to be in prison than their
Speaker 3: white counterparts. In Australia, it's three times worse for Aboriginal
Speaker 3: men and women. For those under the age of eighteen,
Speaker 3: it's up twenty times worse than for African Americans. So
Speaker 3: if you think it's bad in the United States, we
Speaker 3: know it's bad, and we're seeing these exonerations. We know
Speaker 3: the answer to this open question that we're asking, how
Speaker 3: many Indigenous prisoners are innocent, it's hundreds, if not thousands.
Speaker 3: But we come back to if it's small community groups
Speaker 3: and individuals who are overturning these cases, it won't happen
Speaker 3: in Australia till the people doing the work get support
Speaker 3: and more people, particularly lawyers, step up and do the
Speaker 3: work that needs to be done to free the innocent
Speaker 3: people we have in our own prison system.
Speaker 2: And Martin, I've read a few quotes over the past
Speaker 2: couple of weeks, and you know, we don't know the
Speaker 2: full extent just talking about America of wrongful convictions in
Speaker 2: the US justice system, but lawyers seem to estimate that
Speaker 2: at least one percent of people who are convicted and
Speaker 2: given jail time are innocent, which comes to thousands a year.
Speaker 2: Hundreds Would you consider that to be similar in Australia.
Speaker 3: We don't have a.
Speaker 2: Lot of that data over here, but it seems like
Speaker 2: a small percentage one percent, but it actually represents a
Speaker 2: huge number of people that actually aren't even being picked
Speaker 2: up in the US at the moment, despite this push
Speaker 2: and a lot of these private and professional exonerators actually
Speaker 2: working dedicating their time to this. But would you expect
Speaker 2: there to be a similar rate over in Australia.
Speaker 3: I think for the general prison population. If we think
Speaker 3: about it in the United States in terms of the
Speaker 3: average prison perhaps holding five to six hundred individuals, in
Speaker 3: that case, there's five or six people in that prison
Speaker 3: who are innocent, and we know about the harsh sentencing
Speaker 3: they have in the US. But the reason I believe
Speaker 3: the figure is probably higher in Australia is again if
Speaker 3: we look at the representation of Aboriginal people in the
Speaker 3: prison system. You look at juvenile justice in Western Australia,
Speaker 3: for example, where there was a period of time where
Speaker 3: there was one hundred people in juvenile detention and ninety
Speaker 3: eight of them were Indigenous, despite being only three percent
Speaker 3: of the population. When you have statistics that are that
Speaker 3: far out of balance, it's very likely for a large
Speaker 3: range of reasons why a far greater percentage of those
Speaker 3: young people are innocent, and of course their adult counterparts
Speaker 3: are innocent. Partly that's to do with there is a
Speaker 3: greater process for appeal in the United States. There's been
Speaker 3: new legislation introduced in the US that we don't have
Speaker 3: in Australia for post conviction relief, particularly in states like
Speaker 3: Michigan where there was very high imprisonment rates. In fact,
Speaker 3: the death penalty in Michigan was apped by a Republican
Speaker 3: governor precisely because of the number of innocent people in
Speaker 3: prison and on death row. So we also know that
Speaker 3: there's chronic underfunding of things like the Aboriginal Legal Service.
Speaker 3: There's a lack of translators, there's a lack of community
Speaker 3: support to go on with things like appeals. Aboriginal prisoners
Speaker 3: who are trying to appeal don't ever get to choose
Speaker 3: their own lawyer unless they have the funds too. This
Speaker 3: is another enormous problem. If a lawyer has already failed
Speaker 3: you once at trial, and we know that's happened, the
Speaker 3: likelihood of them then successfully appealing your case is virtually zero.
Speaker 3: So I think even a conservative estimate in terms of
Speaker 3: Indigenous prisoners convicted of serious crimes, because we know the
Speaker 3: most scary thing about all of them is the worse
Speaker 3: the crime, the more likely it is the prison system
Speaker 3: and the justice system gets it wrong. And this is
Speaker 3: from long term studies both in Australia and the United States.
Speaker 3: And I'd go back to Michigan again, where they had
Speaker 3: a between a one and two percent failure rate that's
Speaker 3: sending innocent people to prison across the general population on
Speaker 3: death row. When they analyzed every single case of current
Speaker 3: death row inmates at the time, the failure eight was
Speaker 3: twenty five percent. Now that's one in four prisoners. So
Speaker 3: if we think of all the Indigenous men and women
Speaker 3: in maximum in maximum security prisons in Australia, it's very
Speaker 3: likely the figure could be that high.
Speaker 2: So Martin, there seems to be a lot we can
Speaker 2: learn and draw links to from this report that was
Speaker 2: recently released in the US this week and Kevin Henry's case,
Speaker 2: particularly when you look that those statistics around exonerations caused
Speaker 2: by official misconduct and exonerations where there was no crime committed,
Speaker 2: which seems to be a majority of the exonerations or
Speaker 2: a large percentage of them. Specifically, what can we what
Speaker 2: sorry how does this link back to Kevin Henry's case?
Speaker 2: What do we see in Kevin Henry's case that have
Speaker 2: enormous similarities to these exonerations and these statistics in the US.
Speaker 3: Yeah. Well, one of the big problems, of course in
Speaker 3: the United States and in Australia too is junk forensics
Speaker 3: and junk science. We've seen in some of the most
Speaker 3: highly publicized cases, whether it be oj Simpson's case, that
Speaker 3: of Michael Peterson in North Carolina, where the forensics are
Speaker 3: either made up or don't make sense. And here's something
Speaker 3: we can reveal for the first time about keV Henry's case,
Speaker 3: that is that two post mortems were conducted. Now, this
Speaker 3: is highly unusual, and it's also unusual because there was
Speaker 3: never an inclination of any kind given to the defense
Speaker 3: attorneys that we're aware of that two were done. In fact,
Speaker 3: the findings of one seem to have been taken and
Speaker 3: then stored from after Kevin was arrested until we've uncovered
Speaker 3: them very recently. One was conducted the day that Linda
Speaker 3: was found, on the Sunday, and the second one was
Speaker 3: conducted on the Monday, the following day after the first
Speaker 3: had been conducted. And they were done almost twenty four
Speaker 3: hours after each other. They were both done at about
Speaker 3: ten in the morning. Now, the problem with the two
Speaker 3: post mortems is that they detail very different things. One
Speaker 3: of the post mortems is largely what is included in
Speaker 3: the trial transcripts and was used at evidence in the
Speaker 3: trial of Kevin Henry. But the second transcript of the
Speaker 3: post mortem that was carried out on the Monday contains
Speaker 3: things that were never included, and this includes something called
Speaker 3: what the state of hypostasis was at the time of death,
Speaker 3: and it was recorded as posterior. So to explain that
Speaker 3: very simply, that means that the person passed away, most
Speaker 3: likely when they were lying on their back, which was
Speaker 3: how we know Linda was during the attack that took
Speaker 3: place on her. It's not what occurs when a body
Speaker 3: is placed in the river when the person is still alive.
Speaker 3: And for Kevin to have been found guilty of murder,
Speaker 3: Linda had to still be alive when she was placed
Speaker 3: in the river. So we know that that is not correct,
Speaker 3: and that's from this second post mortem. The other issue
Speaker 3: is that the examiner from the second post mortem clearly
Speaker 3: states that the body had already been tampered with or
Speaker 3: at least someone had done something in terms of cleaning
Speaker 3: the body up. And we've discussed this briefly before, that
Speaker 3: Linda's body was covered in mud and that her body
Speaker 3: was cleaned before the post mortem the second one took place,
Speaker 3: and that should never have happened. We don't know what
Speaker 3: the chain of custody was, and we don't know who
Speaker 3: had the responsibility to ensure no tampering took place. But
Speaker 3: what we do know is that only one name continues
Speaker 3: to come up was present when Linda's body was found
Speaker 3: and inspected by a doctor from the Rockampton Hospital, when
Speaker 3: the first post mortem was carried out, and when the
Speaker 3: second post mortem was carried out, and that was Detective
Speaker 3: Senior Constable Robert Hunt. You'll know from this podcast he's
Speaker 3: also the person that charged Kevin Henry, who was present
Speaker 3: during Kevin Henry's interviews where there's the mysterious gaps in
Speaker 3: the tape, who Kevin Henry has previously alleged he was
Speaker 3: threatened during that interview, that Kevin Henry was also not
Speaker 3: given a lawyer, and that the situation around that is
Speaker 3: very suspect to say the least. And you will have
Speaker 3: heard that. This is also the detective who, despite being
Speaker 3: quite junior ranks, turned up for just about every witness statement.
Speaker 3: This is also the detective who took witness statements from
Speaker 3: people when they were intoxicated, who took witness statements from
Speaker 3: people who were in prison, and of course we know
Speaker 3: about the veracity of witness statements given by jail house snitches.
Speaker 3: This is also the detective who took a witness statement
Speaker 3: from a miner who was intoxicated at the time without
Speaker 3: a lawyer present. And this is the detective who on
Speaker 3: the stand was found in many cases simply not to
Speaker 3: have been telling the truth and had admitted very openly
Speaker 3: that they considered this an open and shutcase. It's no
Speaker 3: surprise that this is the same detective that was there
Speaker 3: from the very start, and it's clear from his statement
Speaker 3: to the court that he cherry picked the very best
Speaker 3: of what would suit his case from the two post mortems. So,
Speaker 3: while we're not suggesting that the doctors in conducting this
Speaker 3: these two post mortems did anything wrong, it's very strange
Speaker 3: that two took place. It's strange that the findings are different,
Speaker 3: and it's quite worrying that some of the things that
Speaker 3: would have led to clear signs of Kevin Henry's innocence
Speaker 3: were deliberately left out.
Speaker 2: So Martin, when you mentioned about the mud, how do
Speaker 2: we know that the mud was on her when she
Speaker 2: actually was brought back to Shaw? How do we know
Speaker 2: that it hadn't been washed off by the river? For example?
Speaker 2: Who saw the mud on her when she came back
Speaker 2: to shore?
Speaker 3: Okay, So we have the statement of the two fishermen
Speaker 3: who had no reason to say anything other than what
Speaker 3: they saw. We have confirmation in terms of the mud
Speaker 3: being on Linda's body from the police photographer. We have
Speaker 3: information of mud being on Linda's body from the first
Speaker 3: police officer who was on the scene. We have confirmation
Speaker 3: from the first doctor on the scene, and we have
Speaker 3: confirmation from the first criminologist and coroner who did the
Speaker 3: first post mortem. Then we get confirmation the body had
Speaker 3: been cleaned by the second doctor who said that and
Speaker 3: I quote, I understand that when initially retrieved, the body
Speaker 3: had been covered with mud, but the body has since
Speaker 3: been cleaned. But there's nothing about why the body was cleaned,
Speaker 3: what evidence might have been removed when the body was cleaned,
Speaker 3: and who cleaned it and where, where, when and why?
Speaker 3: And these are questions that we don't have answers to
Speaker 3: other than we know that this one detective was present
Speaker 3: for the examination of all three the two post mortems
Speaker 3: and the first examination by the doctor who was called
Speaker 3: down to the riverbank. So we have statements from eyewitnesses,
Speaker 3: from police and from three doctors, and they all contradict
Speaker 3: that of one officer.
Speaker 2: So Martin, obviously, what you've just detailed then shows the
Speaker 2: official misconduct, which we hopefully have detailed a lot of
Speaker 2: in previous podcasts as well. But what about the no
Speaker 2: crime taking place.
Speaker 3: It's a very important and serious point. First, we have
Speaker 3: the issue, of course that the forensics clearly shows that sadly,
Speaker 3: Linda had already passed away when she was placed in
Speaker 3: the water. But the reason Kevin Henry is still in
Speaker 3: prison to this day is not because of the murder charge.
Speaker 3: It's because of the charge of rape that was leveled
Speaker 3: against him. And this is something that's very important because
Speaker 3: this is what has held up parole for so long. Remember,
Speaker 3: Kevin Henry absolutely denies ever raping Linda, and even though
Speaker 3: we know there was a forensic report and the crime
Speaker 3: lab in Brisbane conducted a vast range of forensic tests
Speaker 3: at the time. We have the doctor's examination, and then
Speaker 3: we have two post mortems now from people who were
Speaker 3: qualified to carry out post mortems as coroners, and they
Speaker 3: were all consistent on one fact. Linda did not suffer rape.
Speaker 3: There was no crime of rape. So Kevin Henry should
Speaker 3: never have been found guilty of that in the first place.
Speaker 3: The fact that that is what's holding up his parole
Speaker 3: to this day, more than two decades, nearly three decades later,
Speaker 3: is just what we see in these exoneraisations in the
Speaker 3: United States. We're talking about crimes that simply never took place.
Speaker 3: So we have multiple doctors, pathologists, people with the expertise
Speaker 3: for the State of Queensland to entrust these people as
Speaker 3: coroners to determine how people died, often in very difficult
Speaker 3: circumstances to understand, and they all rea on one thing,
Speaker 3: and that is that Linda was not raped. Now, this
Speaker 3: is vital for two reasons, and I think it's absolutely
Speaker 3: disgusting that the police even took that charge to trial,
Speaker 3: let alone that Kevin was convicted of it. First, it
Speaker 3: means that for all this time Linda's family has been
Speaker 3: led to believe she was sexually assaulted and have been
Speaker 3: forced to live with that memory for the rest of
Speaker 3: their lives. And it's something that simply did not take place.
Speaker 3: This was a crime committed by the police on Linda's family,
Speaker 3: an Aboriginal family already suffering greatly because of police action.
Speaker 3: Doctors and coroners all state, in their official reports tended
Speaker 3: to the court that no crime of rape took place,
Speaker 3: and yet the police would take it to court and
Speaker 3: through what we've detailed in this podcast gain a disgusting
Speaker 3: and wrongful conviction. Secondly, of course, it's meant that Kevin
Speaker 3: Henry has stayed in prison all this time because a
Speaker 3: parole board understandably does not want to release someone who's
Speaker 3: been convicted of rape if they believe that person has
Speaker 3: not gone through the proper processes in terms of rehabilitation.
Speaker 3: But what they've been told is the same lie that
Speaker 3: the rape took place when it never did. And because
Speaker 3: of the ridiculous laws in the state of Queensland, the
Speaker 3: parole Board has not been able to consider the very
Speaker 3: evidence that should have been presented to court that was
Speaker 3: done by professional doctors and coroners at the time that
Speaker 3: this rape simply never took place. So it's not just
Speaker 3: a matter of the police fabricating evidence and stitching Kevin
Speaker 3: Henry up. It's also got to do with politicians not
Speaker 3: passing the laws that make exonerations possible. It shouldn't be
Speaker 3: in twenty eighteen that we can hold in our hands
Speaker 3: official documents and post examination reports done by doctors and
Speaker 3: coroners that categorically states something did not happen, and nearly
Speaker 3: thirty years later a man is in prison for that crime.
Speaker 3: So if we are going to see any number of
Speaker 3: people released, as we're starting to see in the United States,
Speaker 3: we're going to need lawyers to start taking these cases up.
Speaker 3: We're going to need politicians willing to change laws to
Speaker 3: allow the truth, the real evidence, to see the light
Speaker 3: of day. And we're going to need the public to
Speaker 3: support work of those trying to free the wrongfully convicted,
Speaker 3: because it can't be done without resources and a great
Speaker 3: deal of time. Just as we've seen in the United States,
Speaker 3: sadly in Australia only a handful of people are carrying
Speaker 3: out this work. This podcast is one of those works,
Speaker 3: but it needs support or people like Kevin Henry and
Speaker 3: all those like him won't get justice, And the families
Speaker 3: of those like Linda whose life was tragically taken and
Speaker 3: then the police doubled down on that crime by completely
Speaker 3: lying to her family about what took place. Has continued
Speaker 3: for nearly three decades, and it's time that changes.
Speaker 2: That was episode fifty of Curtain