Speaker 1: Just before nine o'clock last night, the jury returned guilty
Speaker 1: verdicts against all three defendants. It was absolute shambles, to
Speaker 1: tell you the truth. Just actually really pain of.
Speaker 2: Blood on his clothing the day after the alleged attamp
Speaker 2: on a shallow mud bank and it fits through a river.
Speaker 1: Basically, I think most of the people are used to me,
Speaker 1: 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 pulled 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 and.
Speaker 3: I'm Martin Hodgson, a senior advocate for the Foreign Prisoner
Speaker 3: Support Service. And a warning. This series contains the names
Speaker 3: of deceased peoples and has distressing content that might upset
Speaker 3: some listeners.
Speaker 4: In nineteen eighty seven, Ron Williamson and Dennis Fritz were
Speaker 4: tried separately in Oklahoma and convicted of a brutal rape
Speaker 4: and murder. Questionable forensic evidence tied them to the scene
Speaker 4: of the crime. Williamson received the death penalty. Fritz was
Speaker 4: sentenced to life in prison. Fritz and Williamson were innocent,
Speaker 4: and they were exonerated by DNA evidence. In over fifty
Speaker 4: percent of DNA exonerations, the forensic evidence was unvalidated or improper.
Speaker 4: There were a host of problems with the forensics used
Speaker 4: to convict these innocent people. Analysts testifying as experts at
Speaker 4: criminal trials made invalid claims, false claims unsupported by science.
Speaker 4: They made serious errors because they used unreliable methods which
Speaker 4: were either error prone or lack repuatability. They also engaged
Speaker 4: in scientific negligence, even outright misconduct. They concealed evidence of innocence,
Speaker 4: and they used vague and confusing terms that jurors could
Speaker 4: not be expected to understand. In the Fritz and Williamson case,
Speaker 4: two types of forensics were presented, blood and hair analysis.
Speaker 4: Blood or a cyological analysis has sound science to back
Speaker 4: it up, but in this case, the analyst reached exaggerated
Speaker 4: and false conclusions that made totally inconclusive eb L blood
Speaker 4: taping seem like evidence of their guilt. Fretz and Williamson
Speaker 4: each served twelve years for a crime they did not commit.
Speaker 4: At one point, Williamson was only five days from execution.
Speaker 5: That was Brandon ell Garrett, author of Convicting the Innocent,
Speaker 5: Where Criminal Prosecutions Go Wrong. He works for the Innocence
Speaker 5: Project and teaches law at the University of Virginia Law School.
Speaker 5: You've heard him on this podcast before, but there he
Speaker 5: was explaining the importance of forensic evidence and that when
Speaker 5: it's used poorly, collected, poorly, or mishandled in over fifty
Speaker 5: percent of cases where people are exonerated, it was because
Speaker 5: of this poor use of forensic evidence. This week, we've
Speaker 5: got a bigger episode for you because we've been waiting
Speaker 5: on information that's been a long time coming. We told
Speaker 5: you late last year that we had grave concerns about
Speaker 5: the forensic analysis brought at the trial of Kevin Henry,
Speaker 5: and because of this, we sent this data away to
Speaker 5: an international expert in the United Kingdom. This week we
Speaker 5: finally received this independent analysis back and we can tell
Speaker 5: you it's explosive. It confirms our previous suspicions on several aspects.
Speaker 2: Of this case.
Speaker 1: Now, before we outline this information, I want to extend
Speaker 1: a huge thank you to our listeners, especially those of
Speaker 1: you who've stuck it out with us over the past
Speaker 1: few weeks while we've revisited certain information, we have been
Speaker 1: waiting on the outcome of Kevin Henry's parole hearing, and
Speaker 1: we are still waiting.
Speaker 2: Because of that.
Speaker 1: We had a few quiet episodes this week, though we'll
Speaker 1: begin to go into detail about the FORENDS analysis in
Speaker 1: this case. We've told you before preliminary assessments from experts
Speaker 1: had already raised concerns it was overly simplistic. This new
Speaker 1: analysis confirms this.
Speaker 3: But first we have to warn our listeners, especially our
Speaker 3: Aboriginal and Torres Straight Islander listeners, that this episode will
Speaker 3: contain distressing content. It contains the names of deceased people. Now,
Speaker 3: we've taken a great deal of care in this podcast
Speaker 3: series not to be gratuitous. Out of respect for Linda's
Speaker 3: memory and her family.
Speaker 1: We've tried our best to censor some of the more
Speaker 1: disturbing aspects of Linda's death. This is largely because, as
Speaker 1: an Aboriginal woman, she was victim not only to this crime,
Speaker 1: but to so many others in her short time on
Speaker 1: this earth. We don't want to add to that disrespect,
Speaker 1: and we don't want to further the trauma and hurt
Speaker 1: felt by her family.
Speaker 3: But this week, we unfortunately do have to outline the
Speaker 3: more distressing details of her death. This is because the
Speaker 3: information we will provide you with is critical to Kevin
Speaker 3: Henry's case. It's critical to understanding why an innocent man
Speaker 3: has been sitting in jail for the past twenty five years.
Speaker 3: But as we outline these details, never forget that Linda
Speaker 3: was an accomplished, smart, strong mother of four. She was
Speaker 3: loved by her immediate and large extended family, and deserves
Speaker 3: to be remembered as the brilliant person she was in life,
Speaker 3: rather than the tragic circumstances of her death.
Speaker 1: We believe that a graver injustice has been committed against Linda.
Speaker 1: It was because she was Aboriginal, and it was because
Speaker 1: she was a woman that police failed to investigate this properly,
Speaker 1: that media failed to follow up and hold them accountable,
Speaker 1: and why her name was lost to the events of
Speaker 1: nineteen ninety one, forever tied to a tragedy when her
Speaker 1: life was worth so much more.
Speaker 3: Now, we have told you several times before in this
Speaker 3: podcast series that Linda's official cause of death was drowning,
Speaker 3: But let's go back.
Speaker 1: A bit so before we bring in the new information
Speaker 1: that we've received. We actually have to go back to
Speaker 1: the transcript. Now, Martin, when you look at the trial,
Speaker 1: when did the pathology report and the expert testimony actually
Speaker 1: come into play?
Speaker 3: Well, it came in two parts by two witnesses, and
Speaker 3: it was fairly scattered. One was called early on and
Speaker 3: one was called almost at the end of the trial.
Speaker 3: I think that's problematic because it can be quite complex information. Generally,
Speaker 3: you would hope if you have two expert witnesses, as
Speaker 3: they did in this case, they'd be called one after
Speaker 3: the other so that the jury has a chance to
Speaker 3: understand what's being said. But that wasn't done. The pathologist,
Speaker 3: who will be predominantly speaking about today, was called in
Speaker 3: between two witnesses who happened to be at Tanuba House
Speaker 3: that evening. So I think that also might go to
Speaker 3: why some of the jurors were clearly or had to
Speaker 3: be confused about some of the information. And it did
Speaker 3: seem a slightly bizarre time in the trial to introduce
Speaker 3: that information.
Speaker 1: So when you talk about those two experts, what testimony
Speaker 1: are we going to talk about today and where did
Speaker 1: those reports come from?
Speaker 3: Okay, So the testimony itself is what we call forensic pathology,
Speaker 3: and that basically gives an understanding of the medical issues
Speaker 3: as to what occurred that night and that day, and
Speaker 3: it tries to explain how a person died, the injuries
Speaker 3: they might have suffered beforehand and after their death. It
Speaker 3: also looks at any blood toxicology and that information came
Speaker 3: from a laboratory expert in Brisbane who analyzed things like
Speaker 3: blood alcohol level samples and also a medical practitioner. And
Speaker 3: that person is the one that acted as the specialist
Speaker 3: pathologist in the trial, and it was that person that
Speaker 3: produced a cause of death for Linda. And I'll just
Speaker 3: quickly read from the transcript that the cause of death
Speaker 3: was determined and this is what the pathologist, who was
Speaker 3: a medical practitioner said. I made to support the diagnosis
Speaker 3: of drowning as the cause of death.
Speaker 1: So what did they base that cause of death on?
Speaker 3: Okay, So, as we've discussed in the podcast, Linda sustained
Speaker 3: a huge number of injuries during the assault took place
Speaker 3: against her by the three women who were convicted of
Speaker 3: grievous bodily hal but the cause of death is given
Speaker 3: as drowning and that was because when Linda was found
Speaker 3: and the examination of her body was done. There was
Speaker 3: water in the lungs, there was some watery fluid in
Speaker 3: the stomach, and there was a small amount of froth
Speaker 3: in the airway. This is what led to the diagnosis
Speaker 3: of drowning as the cause of death.
Speaker 1: So at the time and on the stand, was it
Speaker 1: contested this cause of death, that it was drowning.
Speaker 3: No, And despite this being a murder trial and that
Speaker 3: being given as the cause of death, there was really
Speaker 3: no challenge to that being the case at all, and
Speaker 3: no challenge to the forensic evidence that allegedly supported it.
Speaker 3: And I should say that one of the issues is
Speaker 3: that not only with Kevin on trial, but the women
Speaker 3: were on trial alongside him. So a large percentage of
Speaker 3: the forensic information presented a trial was not in relation
Speaker 3: to Kevin at all. It was in relation to the
Speaker 3: assault perpetrated by the women, and so almost all of
Speaker 3: the forensic information given at trial relates to that assault.
Speaker 3: There's no link of Kevin's at all in that assault,
Speaker 3: either in the pathology that is, there's no connection with Kevin,
Speaker 3: and also by witnesses own statements that Kevin actually told
Speaker 3: the women and was the only person to speak up
Speaker 3: and tell them to knock it off. So it's important
Speaker 3: to understand that the vast bulk of the forensic information
Speaker 3: presented was about the assault on Linda, and it was
Speaker 3: some of this information that was challenged by the lawyers
Speaker 3: representing the three women. But in terms of Kevin Henry,
Speaker 3: the cause of death was never challenged.
Speaker 1: And why is it important to look back at the
Speaker 1: cause of death and consider whether she had drowned when
Speaker 1: we look at this case.
Speaker 3: Okay, So for the prosecutors to convince a jury beyond
Speaker 3: a reasonable doubt that Kevin Henry was responsible for the
Speaker 3: murder of Linda, the only way they could do that
Speaker 3: was drowning, because there was no other forensic evidence that
Speaker 3: supported her death in a way that Kevin could have
Speaker 3: contributed to. Now we've already gone through why even Kevin
Speaker 3: being involved is simply inaccurate. But I think they chose
Speaker 3: this largely because there was simply no other way to
Speaker 3: link to the death. So, to give an example, if
Speaker 3: they suggested that Linda had been strangled, they would have
Speaker 3: had to prove that it was Kevin Henry who did it,
Speaker 3: and you would expect to find his tissue samples his skin,
Speaker 3: perhaps his hair or blood as part of the crime scene,
Speaker 3: and none of that was found. So it was important
Speaker 3: that they determine drowning as the cause of death because
Speaker 3: there was no other way that they could even reasonably
Speaker 3: argue that Kevin had committed murder.
Speaker 1: And Kevin was charged, just to remind our listeners before
Speaker 1: this determination of drowning was actually handed.
Speaker 3: Down, that's right. So it's important to remember that Kevin
Speaker 3: was charged on the fifth of September with murder and
Speaker 3: the three women had been charged earlier in that day
Speaker 3: with murder, but under different circumstances. And as you say,
Speaker 3: this was before any cause of death was known to police.
Speaker 3: So how they made that determination in relation to Kevin
Speaker 3: Henry is quite bizarre. When it relates to the women,
Speaker 3: it can be understood they had committed a vicious assault
Speaker 3: against Linda. There was up to thirty witnesses. The forensic
Speaker 3: evidence as to their involvement had already been discovered and
Speaker 3: while it was still being tested, it was very obvious
Speaker 3: as to their involvement and there was no doubt about that,
Speaker 3: and they would be convicted of that later on. But
Speaker 3: as you say, Kevin was charged with murder before any
Speaker 3: understanding was known of how Linda died, and certainly before
Speaker 3: there was any understanding of how he could have been
Speaker 3: involved in that death.
Speaker 1: So we saw this forensic analysis, why did you decide
Speaker 1: to then get a second opinion and actually send it
Speaker 1: to an independent person and an independent expert to have
Speaker 1: a look at.
Speaker 3: Well? When I read the trial transcripts when we finally
Speaker 3: received them, I expected to find in their damning evidence
Speaker 3: against Kevin Henry, and I expected to find fairly comprehensive
Speaker 3: forensic evidence of the way Linda died, particularly the drowning aspect,
Speaker 3: because if they couldn't prove beyond a reasonable doubt that
Speaker 3: Linda had indeed drowned, then the murder charge against Kevin
Speaker 3: simply couldn't be upheld. But when I read that trial transcript,
Speaker 3: not only was the forensic evidence presented very simplistically, it
Speaker 3: was not at all comprehend and in no way did
Speaker 3: it link Kevin Henry to the crime. So I felt
Speaker 3: it was vital that we understand the forensics further and
Speaker 3: try to discover if we could learn more about the
Speaker 3: way Linda died and if we could potentially find any
Speaker 3: more information out about if Kevin wasn't involved, who might be,
Speaker 3: and also if there could be links to Kevin Henry.
Speaker 3: But those links just didn't show up, and they would
Speaker 3: have been shown at trial if they did. But my
Speaker 3: main concern was the simplistic nature of the forensics and
Speaker 3: also the fact that there was no direct link to
Speaker 3: Kevin Henry provided.
Speaker 1: So this is actually a big question, Martin, because really
Speaker 1: the question centers around was Linda alive before she was
Speaker 1: put in the water or she'd actually been put in
Speaker 1: the water and she died beforehand.
Speaker 2: So that's quite a critical question, isn't it.
Speaker 6: In the sole case, absolutely for them to convict Kevin
Speaker 6: Henry or proved that he had committed murder, they needed
Speaker 6: to prove and the judge made this clear.
Speaker 3: That Linda was still alive when she was placed in
Speaker 3: the water, because that would be the only way Kevin
Speaker 3: could be found guilty of murder by drowning was that
Speaker 3: Linda was still conscious and alive before she was placed
Speaker 3: in the water, and that it was indeed Kevin Henry
Speaker 3: who did place her body in the water with the
Speaker 3: intent of committing murder, That is, that he deliberately placed
Speaker 3: her body in the water for the purpose of drowning her,
Speaker 3: yet virtually no evidence as to this is presented, and
Speaker 3: will break down the evidence that was presented and why
Speaker 3: that fails to convict and should have failed to convict
Speaker 3: Kevin Henry of the crime.
Speaker 1: Now, before we get into what we're going to talk
Speaker 1: for the majority of this program about, which is the drowning,
Speaker 1: was there any other forensic evidence that could have pointed
Speaker 1: to this crime being committed by Kevin Henry.
Speaker 3: Yes, So, the crime scene examiner and the pathologist examines
Speaker 3: the many large patches and pools of blood that were
Speaker 3: found at the scene. Upon analysis, this showed that it
Speaker 3: was Linda's blood and that of at least one or
Speaker 3: more other people, but it was not a match for
Speaker 3: Kevin Henry. The blood's often mixed when people fight, when
Speaker 3: someone struggles against their attacker. But Kevin also did not
Speaker 3: have any of Linda's blood on him, no blood on
Speaker 3: Winder's clothing or body that was Kevin's, and there was
Speaker 3: no match for any other biological material on either Winder's
Speaker 3: clothing or body that was from Kevin. Now, it's also
Speaker 3: important to point out one last thing. There was hair
Speaker 3: found in some of the pools of the blood that
Speaker 3: was not tested and it should have been, and one
Speaker 3: of the experts was asked why they didn't do that,
Speaker 3: and basically they said that it wouldn't have provided any
Speaker 3: further information. But when challenged that if there could show
Speaker 3: that other people were involved, they had to concede that
Speaker 3: that was a possibility, but we would never know because
Speaker 3: those tests were not done, and because those samples were
Speaker 3: kept or taken, that information is lost forever, and that
Speaker 3: hair could have very well led to someone else who
Speaker 3: was involved ultimately in the death of Linda.
Speaker 2: That seems like a huge oversight.
Speaker 1: I'm just wondering back in nineteen ninety one, whether it
Speaker 1: was common for them to test hair and do those
Speaker 1: sort of DNA.
Speaker 3: Tests at the time of the trial. In nineteen ninety one,
Speaker 3: this was largely before DNA was used in murder trials
Speaker 3: or any type of criminal trial, So testing of things
Speaker 3: like blood and hair was very common because this is
Speaker 3: what they had available to them, and it allowed them
Speaker 3: to narrow down suspects link people to crimes purely by
Speaker 3: taking hair samples and matching it to what was found
Speaker 3: at the scene. And it's not the just hair was found.
Speaker 3: It's very important at a crime scene as to where
Speaker 3: these things such as blood, hair, skin matter are found.
Speaker 3: And the hair that was found was found in a
Speaker 3: pool of blood, so we know that more than likely
Speaker 3: it was linked to the assault on Linda, and yet
Speaker 3: it was not tested. Now, had it been linked to
Speaker 3: Kevin Henry, and had it been Kevin's hair, there's no
Speaker 3: doubt they would have tested it because they were trying
Speaker 3: to find anything that linked him to Linda's death. But
Speaker 3: because it was quite obvious and known to all were
Speaker 3: the police and the witnesses and everyone that Kevin was
Speaker 3: in no way involved in the assault, they simply didn't
Speaker 3: test it. But it also means we'll never find out
Speaker 3: who that hair belonged to, and it could very well
Speaker 3: point to the person directly responsible for Linda's ultimate death.
Speaker 2: So that's pretty amazing man.
Speaker 1: And there was no blood linking even though there was
Speaker 1: blood all around the crimes, and there was none that
Speaker 1: linked Kevin to this assault. I'm wondering if there was
Speaker 1: anything else that was found that could have potentially pointed
Speaker 1: to Kevin Henry.
Speaker 3: Yeah, so that was examined by the crime scene examiner
Speaker 3: as to if Linda was placed in the water, what
Speaker 3: would you expect to find. And as we've discussed previously,
Speaker 3: the riverbank is very muddy, and so immediately what they
Speaker 3: expected to find was mud on the clothing of whoever
Speaker 3: committed the crime. And no mud, not even a microscopic
Speaker 3: dot of it, was found on the clothing of Kevin Henry.
Speaker 3: And it should be known that the clothing he was
Speaker 3: wearing that night was recovered voluntarily by Kevin. There's no
Speaker 3: doubt that the clothing he wore that night was tested
Speaker 3: and he did nothing to impede any of this forensic
Speaker 3: evidence being gathered, and that was never suggested, and that's
Speaker 3: very important. And the forensic expert who examined the crime
Speaker 3: scene was asked about that river bank and the fact
Speaker 3: that you would have to go into the mud to
Speaker 3: place a body in the water, And this is what
Speaker 3: they were asked on the stand by Kevin Henry's barrister,
Speaker 3: mister Murray, did you go down into the mud? Not myself? No,
Speaker 3: Did you see any of the officers who did? Yes,
Speaker 3: I did. Did they come back very much mud stained? Answer?
Speaker 3: They sure did. Now Kevin again had no mud on him.
Speaker 3: And this is from the examiner of the crime scene
Speaker 3: saying those officers that did go down into the mud
Speaker 3: came back covered in mud, with a lot of mud stains. Now,
Speaker 3: I should also point out that both officers and the
Speaker 3: forensic experts stated that although the crime happened at night,
Speaker 3: they did not go down into the mud at night
Speaker 3: when they examined the scene at night themselves. That was
Speaker 3: for a number of reasons, and we've touched on this before.
Speaker 3: That's because the river has crocodiles, That's because the mud
Speaker 3: becomes very deep, very quickly, and that's because the river
Speaker 3: bank is very unstable. It's very easy to slip and fall,
Speaker 3: to get stuck in the mud, to fall in the water.
Speaker 3: And the officers simply didn't want to end up at
Speaker 3: night covered in mud or stuck in the river with
Speaker 3: a bunch of crocodiles around. And yet they would claim
Speaker 3: that a very intoxicated Kevin Henry managed to carry the
Speaker 3: body of an individual down this unstable bank, willingly go
Speaker 3: into the water where there was crocodiles and large snakes
Speaker 3: as known to all, and be able to place that
Speaker 3: body in the water without getting a sceric of mud
Speaker 3: on his body or his clothes or his shoes. This
Speaker 3: tests credulity completely.
Speaker 1: He would have to be the world's most lucky criminal,
Speaker 1: I would say, to get away from it without completely
Speaker 1: clean clothes and no evidence completely. So I guess it
Speaker 1: gives you a sense of how important the drowning analysis
Speaker 1: was to the prosecution's case against Kevin Henry.
Speaker 3: That's right. So now they had no forensic evidence whatsoever
Speaker 3: linking Kevin to the death itself and to any assault.
Speaker 3: They had no forensic evidence or eyewitness evidence that showed
Speaker 3: Kevin placing the body in the water. All they could
Speaker 3: rely on was the drowning itself.
Speaker 1: So we've been moting on this forensics report from overseas
Speaker 1: for a very long time and it's only come back.
Speaker 2: Just this past week. What does it actually say about drowning?
Speaker 3: Okay, so at the trial it was stated that the
Speaker 3: cause of death was drowning, and less than a paragraph's
Speaker 3: worth of evidence was presented about that, just that there
Speaker 3: was the watery fluid in the lungs, the stomach and
Speaker 3: some of the airways. But from the report, this is
Speaker 3: what it states in forensic terms. There is nothing whatsoever
Speaker 3: deemed classic about any drowning, No one particular physical characteristic
Speaker 3: manifesting in the body that would aid in expediating such
Speaker 3: a ruling. So because of this, the methodology for reaching
Speaker 3: a determination that it was a water death a drowning
Speaker 3: is chiefly focused on excluding other forms of foul play.
Speaker 3: This place is a great deal of importance on the
Speaker 3: initial investigative role of police personnel who could inform or
Speaker 3: misinform a medical examiner with their on site reports and
Speaker 3: early conclusions.
Speaker 1: So we've already shown that we have a lot of
Speaker 1: concerns with how this police investigation was actually carried out.
Speaker 2: Could that have potentially happened in this case?
Speaker 3: Were it certainly the case that a large amount of
Speaker 3: forensic evidence that was collected was not secured properly by police.
Speaker 3: So we've spoken previously about the fact that people were
Speaker 3: allowed to walk through the crime scene all day on
Speaker 3: the Sunday. We also know that the body or that
Speaker 3: was first discovered by fishermen was secured by police, and
Speaker 3: so a lot of those early reports that they would
Speaker 3: have given information to the medical examiner about where and
Speaker 3: how the body was found in what position. All that
Speaker 3: sort of thing influences the ability of the examiner to
Speaker 3: come to an accurate conclusion.
Speaker 1: So how does a pathologist usually determine a drowning death.
Speaker 3: Okay, so a pathologist will attempt to reconstruct what happened
Speaker 3: by first determining what didn't happen. This may sound a
Speaker 3: little contradictory, but it's the easiest way to rule out
Speaker 3: anything other than accidental death. Quite simply, if the pathologist
Speaker 3: has been asked to autopsy a body that was found
Speaker 3: in water but does not have any physical injuries or
Speaker 3: problems with heart disease, then the most likely conclusion is
Speaker 3: that death was caused by drowning, and its list is
Speaker 3: death by misadventure. But of course we do know that
Speaker 3: Linda had subsustained serious physical injuries. There may well be
Speaker 3: occasions when it's difficult to establish whether or not the
Speaker 3: deceased was alive when they entered the water. This is
Speaker 3: because that even if an individual is deceased when they
Speaker 3: enter the water, providing the body remains submerged for a
Speaker 3: period of time, the lungs will fill up anyway. Now,
Speaker 3: the pathologist was asked about this on the stand because
Speaker 3: this is crucial. We have to remember, as I discussed this,
Speaker 3: that they had to prove beyond a reasonable doubt that
Speaker 3: Kevin placed Linda in the water while she was still alive.
Speaker 3: And what we've just heard is what modern pathologists consider
Speaker 3: to be an absolute base truth, which is that someone
Speaker 3: already deceased will present with the same evidence in terms
Speaker 3: of water in the lungs as a person who was
Speaker 3: still alive when they were placed in the water. But
Speaker 3: at the time, the pathologist on the stand was asked
Speaker 3: about this and he said that that wouldn't happen. So
Speaker 3: it's very clear we know that that was wrong. There's
Speaker 3: also a condition called dry drowning. This is where the
Speaker 3: deceased larynx has gone into spasm and water has entered
Speaker 3: the throat and blocked the passage into the lungs, and
Speaker 3: that any water in the lungs already can't get out
Speaker 3: and more can't get in. Now. At the time of
Speaker 3: Kevin's trial, this was another issue of forensic science that
Speaker 3: was being debated widely around the world. The pathologist at
Speaker 3: Kevin's trial says that this doesn't happen, and he was
Speaker 3: asked this by mister Murray, Kevin's lawyer. We now know
Speaker 3: that the condition known as dry drowning very much does
Speaker 3: happen and has to be considered. So once again we
Speaker 3: have both inaccurate information present, and that is partly because
Speaker 3: it was done too simplistically and partly because new methods
Speaker 3: and methodology is now known.
Speaker 1: So this dry drowning, it seems to me that that
Speaker 1: suggests that she was put in alive when she was
Speaker 1: put into the water. So that seems to suggest that
Speaker 1: she did drown. Why did I guess he say it
Speaker 1: didn't happen, and why is that important to this case?
Speaker 3: I guess well, I think what's very important is that
Speaker 3: they were trying to rule out the fact that Linda
Speaker 3: was already deceased when she was placed in the water,
Speaker 3: because if she was, then what Kevin did did not
Speaker 3: constitute murder. So what we see is the pathologist ruling
Speaker 3: out basically anything that would suggest that Linda was deceased
Speaker 3: when she was placed in the water, but also ruling
Speaker 3: out controversial or are they types of methodology that would
Speaker 3: prove drowning. He really just wanted to stick to what
Speaker 3: he believed was the sign of drowning and nothing else.
Speaker 3: And that's important because we now understand so much more
Speaker 3: about what happens when someone drowns.
Speaker 1: So it shows that he's quite in a way close
Speaker 1: minded to other possibilities of what might have happened that
Speaker 1: he only sees. He's very narrowminded and what he sees
Speaker 1: as a drowning.
Speaker 3: Does that's right. And this also goes back to could
Speaker 3: the examiner have been given misdirection by the police very
Speaker 3: early on? If the examiner wasn't told vital information, that
Speaker 3: information was excluded either by accident, deliberately, or by incompetence.
Speaker 3: This is partly what would have caused him to suggect
Speaker 3: that certain aspects that were presented to him weren't possible.
Speaker 3: He could have been given misinformation, or he simply could
Speaker 3: have been doing the analysis completely wrong.
Speaker 1: So what are the basic tests, if there are any,
Speaker 1: that a modern pathologist would do in this.
Speaker 3: Case, Because the usue of water being in the lungs
Speaker 3: could occur whether a person was placed either dead or
Speaker 3: alive in the water, there are a few basic tests
Speaker 3: that a pathologist will carry out to determine if the
Speaker 3: person was alive when they were placed in the water
Speaker 3: in drowning. The primary test is the hemorrhage in the
Speaker 3: mastioid air cells of the bilateral temporal bone. They also
Speaker 3: test for water in the aviole lie of the lungs.
Speaker 3: They look for what's known as washerwoman's hands, and that's
Speaker 3: what you might see if you're in a bathtub for
Speaker 3: three hours and the skin goes wrinkly, and they actually
Speaker 3: test the state of the skin, and they also examine
Speaker 3: what's known as post mortem lividity, and this occurs because
Speaker 3: of the way a body acts when it's in the
Speaker 3: water if the person, while alive, has inhaled a huge
Speaker 3: amount of water. Not a single one of these tests
Speaker 3: were done. Now, these are all basic tests that are
Speaker 3: now carried out routinely, even if a person has drowned.
Speaker 3: There were witnesses to that drowning and it was purely accidental.
Speaker 3: These are just routine tests and they help determine and
Speaker 3: give a cause of drowning as being a definitive reason
Speaker 3: why the person died. Any of these tests on their
Speaker 3: own assist all of them are much better. And yet
Speaker 3: not a single one was done in this case.
Speaker 1: So, given that these tests weren't actually done, what does
Speaker 1: that mean? Can we say definitively that she hadn't drowned
Speaker 1: or that she did drown What does the report say
Speaker 1: about that?
Speaker 3: So what we can say, based on the evidence that
Speaker 3: was provided a trial and the testing that was done
Speaker 3: at the time, a determination of drowning simply could not
Speaker 3: be made. The pathologist simply stated that the lungs were
Speaker 3: heavier than normal water logs, and that water fluid was
Speaker 3: present in the stomach and airways, but he doesn't say
Speaker 3: where in the airways this fluid is found. Now, if
Speaker 3: we go back to the forensics from the modern report
Speaker 3: that we have, that froth that he refers to would
Speaker 3: not be considered in a sufficient amount to prove drowning.
Speaker 3: It's also not sufficient just to say there was some
Speaker 3: in the airways. There would be large amounts in the airways.
Speaker 3: It would be in the mouth, the nostrils, and the
Speaker 3: upper and lower airways, and that froth would contain blood.
Speaker 3: On the stand, the pathologists provided no evidence at all
Speaker 3: that there was blood in that froth, And the volume
Speaker 3: of this froth is generally much greater in drowning than
Speaker 3: from any other way of a person dying of asphyxiation,
Speaker 3: which includes perhaps strangulation, having a bag placed over their head,
Speaker 3: a pillow placed over their mouth. Now we're not suggesting
Speaker 3: any of those things happened in fact, we can be
Speaker 3: fairly sure that in terms of things such as a
Speaker 3: bag or strangulation, those things didn't happen, but we don't know,
Speaker 3: and we can't ever know because the testing was not
Speaker 3: done properly, and even the testing to prove drowning as
Speaker 3: a cause of death was completely insufficient, and the evidence
Speaker 3: provided is not evidence that would get anywhere close to
Speaker 3: a finding of drowning either back when this testing was
Speaker 3: done and particularly now.
Speaker 2: Now Madin.
Speaker 1: Another thing that the report comes back with, which is
Speaker 1: really interesting is about diatoms. Can you explain a little
Speaker 1: bit about what diatoms are and why are they're important
Speaker 1: in this context.
Speaker 3: Yeah. So, generally, when a body is found in the water,
Speaker 3: whether that be in a backyard, swimming pool, but particularly
Speaker 3: in waterways such as the river the ocean, water samples
Speaker 3: will be taken from where the body is believed to
Speaker 3: be placed into that water body, and it will also
Speaker 3: be taken from where the body is found. And the
Speaker 3: reason they do that is there's very distinct markers that
Speaker 3: change even from bank to bank on a river and
Speaker 3: particularly upstream and downstream, and these markers are known as diatoms.
Speaker 3: These are very small particles that are in the water.
Speaker 3: They're generally an algae like substance. But it's important to
Speaker 3: understand these are basically a living thing and in any
Speaker 3: water that's not treated so you tap water, these will
Speaker 3: be present and they differ from location to location. What
Speaker 3: can be done is that under a microscope these diatoms
Speaker 3: can be seen to be whether they exist or not,
Speaker 3: and to what level they exist and what type they are.
Speaker 3: So to break it down, what would be done when
Speaker 3: the water testing is done is the water from where
Speaker 3: the body was placed in the river would be tested
Speaker 3: and the types of diatoms examined. They would also scrape
Speaker 3: algae off the rocks. Then what they do is they
Speaker 3: take the water from where the body was found and
Speaker 3: once again they examine the diatoms under a microscope and
Speaker 3: they look at their differences, the number that exists the
Speaker 3: algae content. Then the third aspect is to take the
Speaker 3: water recovered from the body of the drowned INDIVI. Now,
Speaker 3: diatoms are not just found in the water of the
Speaker 3: person who's drowned. That's in their lungs or perhaps in
Speaker 3: their throat. These diatoms are absorbed into the organs, so
Speaker 3: they can be found in the river, the kidneys, even
Speaker 3: the brain, and after a period of time, they will
Speaker 3: also be found in the bone marrow. So this leaves
Speaker 3: a very distinct marker and shows how a body might
Speaker 3: have moved in the water, and it makes determining where
Speaker 3: that body was placed in the water and where it
Speaker 3: was found very easy to determine because these diatoms differ
Speaker 3: from place to place and will never be the same.
Speaker 1: So if they had done these tests, they could have
Speaker 1: very well solved this problem of where Linda was placed
Speaker 1: in the river once and for all, almost quite definitively,
Speaker 1: we could have ruled and places out.
Speaker 3: Yeah, and that's very important because if Linda wasn't placed
Speaker 3: in the river at Tanuba House, then the murder could
Speaker 3: not have been carried out by Kevin Henry. Again, this
Speaker 3: would have placed huge doubt as to Kevin's involvement. In fact,
Speaker 3: it could have proved whether he was or was not involved.
Speaker 3: But further to that, it could have shown exactly where
Speaker 3: Linda was placed in the water and helped lead police
Speaker 3: to other suspects of people who had access to a car,
Speaker 3: who were at other parts of the river at that night,
Speaker 3: whose whereabouts couldn't be accounted for. But these tests simply
Speaker 3: weren't done. Now, the diadom test might sound complex, and
Speaker 3: so we can say that perhaps it wasn't done because
Speaker 3: because the pathologists was sure enough about their results, when
Speaker 3: we now know that those results were simply not good enough.
Speaker 3: But this testing of even water samples was not done.
Speaker 3: We had no evidence that any scraping of nearby rocks,
Speaker 3: trees the bank of the river was done to find
Speaker 3: the certain types of algae that could be then found
Speaker 3: in the victim's body or in the water that is
Speaker 3: then in the victim's lungs or in their organs. So
Speaker 3: none of this testing was carried out. So not only
Speaker 3: is it important in terms of determining who the real
Speaker 3: killer might have been, it would have definitively ruled Kevin
Speaker 3: Henry in or out. Now, I have to believe that
Speaker 3: if they felt it would have shown Kevin Henry to
Speaker 3: be the killer, they would have done this testing. This
Speaker 3: testing was available at the time. The taking of the
Speaker 3: water samples is as easy as year eight science at
Speaker 3: high school, and yet it simply wasn't done. So once again,
Speaker 3: there is no evidence that Kevin Henry was involved, let
Speaker 3: alone beyond a reasonable doubt in the disposing of Linda's
Speaker 3: body into the water, and particularly at ten Uber House.
Speaker 1: It definitely does sound like so many other factors. The
Speaker 1: fact that Kevin was originally charged with murder is what
Speaker 1: almost contaminated the rest of the investigation, including how the
Speaker 1: forensic evidence was gathered and examined.
Speaker 3: That's right, and I think that's clear from what we've
Speaker 3: learned from experts around the world previously in this podcast.
Speaker 3: What we're learning today from expert fromensic scientists and pathologists,
Speaker 3: that the fact Kevin was charged so early, the fact
Speaker 3: he was charged before there was a cause of death established,
Speaker 3: the fact there was no witnesses that saw Kevin ever
Speaker 3: place Linda's body in the water. All of this meant
Speaker 3: that the pathology work that was done, the forensic examination
Speaker 3: that was done, missed any other signs that could lead
Speaker 3: to who the real killer was.
Speaker 1: So what else did this new report find in the
Speaker 1: original investigation that they found wasn't done?
Speaker 2: Probably it was insufficient.
Speaker 3: Okay, So there was two issues. One was in relation
Speaker 3: to blood in the lungs and whether the sheer force
Speaker 3: of water flowing in a river could cause bleeding in
Speaker 3: the lungs now. Mister Murray asked the forensic pathologist at
Speaker 3: trial whether this was possible. He simply said no. The
Speaker 3: report that we have now tells us that that is possible,
Speaker 3: and it's quite a frequent occurrence, particularly in a waterway
Speaker 3: where the water moves rapidly, and as we've discussed previously,
Speaker 3: the Fitzroy River that runs through Rockhampton is a very
Speaker 3: tidal river and the water flows in and out very
Speaker 3: fast with the tips. The second issue is looking for
Speaker 3: any pieces of plant life, stones, rocks, algae or biological
Speaker 3: matter from another individual that may be present on the hands, fingers,
Speaker 3: or under the fingernails of the person that drowned. Firstly,
Speaker 3: this will show when they moved through the water, what
Speaker 3: did they touch, and therefore it helps in the determination
Speaker 3: of where the body was placed and where the body
Speaker 3: moved to. But it will also show that if the
Speaker 3: person was indeed alive, their hands would have touched the
Speaker 3: person or attempted to touch the person placing them in
Speaker 3: the water. They might have clawed at the individual trying
Speaker 3: to escape, and this would leave behind biological markers such
Speaker 3: as the hair, blood, or skin of the person responsible.
Speaker 3: These tests were not done again, these are routine tests,
Speaker 3: and had they been done, they would have provided further
Speaker 3: evidence of who the real killer was if indeed Linda
Speaker 3: was placed in the water while she was still alive.
Speaker 3: What we do know is that none of the bioline
Speaker 3: logical matter, whether that be blood, hair, skin, that was tested,
Speaker 3: was ever found to be that of Kevin Henry.
Speaker 2: So Martin, I guess it seems really strange for me.
Speaker 1: If they truly believed Kevin had done this crime, why
Speaker 1: wouldn't they do these tests, these preliminary tests, which would
Speaker 1: have just given them more evidence against Kevin if they
Speaker 1: truly believed that he was the one who did this.
Speaker 3: Well, I think the answer is quite simple, and it
Speaker 3: comes from the fact that Kevin was charged before the
Speaker 3: cause of death was determined. Once the pathologist had made
Speaker 3: that determination, all the basic tests that we've described could
Speaker 3: have been done and could have been done to further
Speaker 3: link Kevin Henry to the crime. Now, whether they did
Speaker 3: these tests or didn't do these tests, if they had,
Speaker 3: if it would have ruled Kevin in or out. But
Speaker 3: by the police's own admission, the moment they charged Kevin
Speaker 3: Henry with murder, their investigation stopped so any information that
Speaker 3: came back that showed not only did Linda not die
Speaker 3: of drowning, but perhaps more likely died as a result
Speaker 3: of the injuries that were perpetrated against her in the assault,
Speaker 3: and didn't show a link to Kevin Henry could have
Speaker 3: quite easily been ignored. And this would have been done
Speaker 3: to satisfy their desire to have Kevin Henry found guilty
Speaker 3: and satisfy the fact that they charged Kevin Henry with
Speaker 3: murder before they had any of this forensic information made
Speaker 3: available to them. So we won't know if those tests
Speaker 3: were ever done or not done. If they were done
Speaker 3: and they showed that Kevin Henry was any way involved,
Speaker 3: surely they would have been raised a trial they simply weren't.
Speaker 3: That means that That means that the charge that he
Speaker 3: deliberately drowned Winda in the river and that led to
Speaker 3: the murder conviction, by modern standards, and even by the
Speaker 3: standards available at the time, couldn't be upheld beyond a
Speaker 3: reasonable doubt. In fact, I don't think it could be
Speaker 3: upheld to any level of doubt had the tests been done,
Speaker 3: and if they were done, that information presented to the jury,
Speaker 3: but the police had made their decision. They charged Kevin
Speaker 3: Henry with murder when the determination that drowning came back
Speaker 3: as the cause of death. They knew that no information
Speaker 3: linked Kevin to that drowning, and that's clear in the
Speaker 3: forensic pathology, and so they chose either to ignore it,
Speaker 3: not present it, or instruct that those tests not be done.
Speaker 1: So whether they were simply incomfident or whether they deliberately
Speaker 1: ignored these tests is up to you, the listener, to decide.
Speaker 3: So whatever you decide about what you've heard, you have
Speaker 3: to keep in mind that for the murder conviction, for
Speaker 3: that to be proven beyond a reasonable doubt, the police
Speaker 3: and the prosecutor were required to show that Kevin placed
Speaker 3: Linda's body in the water while she was still alive,
Speaker 3: and that she died of drowning. And based on the
Speaker 3: evidence we've given you today, you can decide for yourself
Speaker 3: whether you think they proved that beyond a reasonable doubt,
Speaker 3: whether Kevin was involved, or whether it could be said
Speaker 3: Linda died from drowning and was placed in the water
Speaker 3: while still alive. Next week, we'll bring you more from
Speaker 3: the new forensic report, and we'll get closer to showing
Speaker 3: the innocence of Kevin Henry and closer to showing who
Speaker 3: a real killer could be. That's next week on Curtain,
Speaker 3: the podcast