WEBVTT - Beyond a Reasonable Doubt 0:00:02.680 --> 0:00:06.080 Just before nine o'clock last night, the jury returned guilty 0:00:06.160 --> 0:00:08.480 verdicts against all three defendants. 0:00:08.520 --> 0:00:11.119 It was absolute shambles, to tell you the truth, just 0:00:11.240 --> 0:00:12.560 absolutely really honored. 0:00:12.280 --> 0:00:13.280 Blood on his clothing. 0:00:13.320 --> 0:00:15.160 The day after the alleged at top a. 0:00:15.160 --> 0:00:16.960 Show a mud Bank and the Fit through a River. 0:00:17.079 --> 0:00:19.119 Basically, I think most of the people are used to 0:00:19.160 --> 0:00:20.600 me are good people. 0:00:20.640 --> 0:00:23.280 I think a really important question we need to ask 0:00:23.480 --> 0:00:26.360 is how many Indigenous prisoners in Australia are innocent. 0:00:27.280 --> 0:00:29.880 This is Curtain, a podcast where we pull back the 0:00:29.920 --> 0:00:32.440 blinds to shine a light on the darkest parts of 0:00:32.479 --> 0:00:36.240 our justice system and ask who are the victims. I'm 0:00:36.240 --> 0:00:37.520 Amy Maguire. 0:00:38.360 --> 0:00:41.680 And I'm Martin Hodgson, a senior advocate for the Foreign 0:00:41.760 --> 0:00:46.120 Prisoner Support Service. And a warning this series contains the 0:00:46.200 --> 0:00:50.319 names of deceased peoples and has distressing content that might 0:00:50.440 --> 0:00:51.680 upset some listeners. 0:00:53.240 --> 0:00:57.680 Welcome to episode twenty three of Curtain, the Podcast. And 0:00:57.760 --> 0:01:01.240 as we were recording this week's episode, exciting news came 0:01:01.280 --> 0:01:05.760 in from Western Australia. An Aboriginal man named Jane Gibson 0:01:06.319 --> 0:01:09.200 given a seven and a half year sentence for manslaughter 0:01:09.240 --> 0:01:12.160 over the death of a white man just had his 0:01:12.280 --> 0:01:16.280 conviction quashed. Josh Warnecki was found dead on the side 0:01:16.280 --> 0:01:20.080 of a road and broom seven years ago. Mister Gibson, 0:01:20.360 --> 0:01:23.840 who was from a remote Western desert community, was sentenced 0:01:23.880 --> 0:01:28.000 in twenty fourteen after pleading guilty to the unlawful killing 0:01:28.120 --> 0:01:30.640 of mister Warnecki, but. 0:01:30.680 --> 0:01:35.560 On Wednesday, the Western Australian Court of Appeal quashed that conviction. 0:01:36.760 --> 0:01:42.080 Mister Gibson only speaks limited English and his first language 0:01:42.240 --> 0:01:47.400 is pintubby. Witnesses also testified that he'd had a cognitive 0:01:47.440 --> 0:01:53.280 impairment and could potentially have feed alcohol spectrum disorder known 0:01:53.320 --> 0:01:58.320 to many as FAZD. Mister Gibson has already served four 0:01:58.440 --> 0:02:01.920 years for a crime he did do. His story has 0:02:01.960 --> 0:02:04.520 been widely covered in the media this week. 0:02:05.840 --> 0:02:10.320 Now to consider this, Kevin Henry or Curtin has been 0:02:10.360 --> 0:02:13.160 locked up for over a quarter of a century for 0:02:13.280 --> 0:02:17.200 a crime he did not do. Like mister Gibson, his 0:02:17.320 --> 0:02:20.880 confession is also false will. Mister Gibson was not given 0:02:20.919 --> 0:02:26.160 adequate translation to understand the complicated court processes and instructions. 0:02:26.639 --> 0:02:29.800 Kevin Henry did not even have a lawyer present. He 0:02:29.960 --> 0:02:33.080 was forced to confess while intoxicated. 0:02:33.040 --> 0:02:37.560 Now, throughout this podcast series, we've gone through the transcripts 0:02:37.600 --> 0:02:42.440 of Kevin Henry's trial in exhaustive detail. We've raised doubt 0:02:42.639 --> 0:02:46.519 not only on witness statements, but also on the title records, 0:02:46.960 --> 0:02:52.200 the forensics, and how the police conducted their investigation. We 0:02:52.200 --> 0:02:54.120 weren't the first to raise that doubt. 0:02:54.760 --> 0:02:57.560 Now, one of the other bits of listener feedback we've 0:02:57.600 --> 0:03:01.959 received has been this, given all this doubt, how did 0:03:01.960 --> 0:03:03.880 the jury convict Kevin Henry? 0:03:04.520 --> 0:03:07.120 So this week we're going to read to you the 0:03:07.200 --> 0:03:10.320 instructions that were given to the jury by the trial 0:03:10.440 --> 0:03:13.919 judge in Kevin Henry's case. This will help you put 0:03:13.960 --> 0:03:18.000 yourselves in the position of the jury. You've heard as 0:03:18.120 --> 0:03:22.480 much evidence as those who sat in judgment on Kevin Henry. 0:03:23.040 --> 0:03:27.840 In fact, you've been given the benefit of much more detail. 0:03:28.200 --> 0:03:31.280 But listening to what the judge says and his summation, 0:03:32.280 --> 0:03:35.920 you can decide for yourself whether you would find Kevin 0:03:35.960 --> 0:03:38.960 Henry guilty beyond a reasonable doubt. 0:03:39.400 --> 0:03:42.800 A reasonable doubt is not a mere possible doubt, a 0:03:42.920 --> 0:03:47.760 speculative imaginary are forced doubt. A reasonable doubt as to 0:03:47.800 --> 0:03:50.720 the guilt of the defendant may arise from the evidence 0:03:51.400 --> 0:03:55.760 conflict and the evidence are the lack of evidence. If 0:03:55.800 --> 0:03:58.960 you have a reasonable doubt, you should find the defendant 0:03:59.200 --> 0:04:03.400 not guilty. If you have no reasonable doubt, you should 0:04:03.440 --> 0:04:04.800 find it defending guilt. 0:04:05.760 --> 0:04:09.600 That was the judge in Brendan Butler's trial shown in 0:04:09.680 --> 0:04:13.640 the award winning documentary Murder on a Sunday Morning. And 0:04:13.720 --> 0:04:16.880 as we've discussed previously in this podcast, if you haven't 0:04:16.920 --> 0:04:21.960 seen that documentary, it will help you understand Kevin Henry's case. 0:04:23.120 --> 0:04:27.400 Now, what you just heard is a definition of reasonable doubt. 0:04:28.560 --> 0:04:32.640 Here's the judge in Kevin Henry's trial describing to the 0:04:32.720 --> 0:04:37.719 jury the same principle as they heard it. The standard 0:04:37.760 --> 0:04:40.800 to which the crown must prove the charge before you 0:04:41.640 --> 0:04:44.400 can find any of the accused guilty of any of 0:04:44.440 --> 0:04:50.880 the charges is described as proof beyond reasonable doubt. This 0:04:50.960 --> 0:04:53.200 is a phrase that's been used in our law for 0:04:53.240 --> 0:04:57.240 a long time. It is a concept that juries applied 0:04:57.360 --> 0:05:01.320 day by day in our criminal courts. It means what 0:05:01.440 --> 0:05:05.240 it says that you, as twelve citizens who have a 0:05:05.279 --> 0:05:08.880 wide range of experience of life and a great fund 0:05:08.920 --> 0:05:12.880 of common sense, look at the evidence and decide whether 0:05:13.000 --> 0:05:17.320 or not the evidence that's there satisfies you beyond any 0:05:17.760 --> 0:05:23.120 reasonable doubt. If a reasonable doubt remains on some aspects 0:05:23.160 --> 0:05:26.520 of the evidence which has to be proved, then the 0:05:26.560 --> 0:05:32.239 Crown has failed in respect of that charge. The verdict 0:05:32.279 --> 0:05:36.039 that you reach must be the unanimous verdict of the 0:05:36.120 --> 0:05:36.839 twelve of you. 0:05:37.640 --> 0:05:41.000 Now, the other question that we're constantly being asked by 0:05:41.080 --> 0:05:45.000 listeners to this podcast is was it an all white jury? 0:05:45.920 --> 0:05:49.880 And by all accounts, the answer is yes. And as 0:05:49.920 --> 0:05:54.760 you heard in the judge's instructions, he said that the 0:05:54.839 --> 0:05:58.960 twelve citizens on the jury had a wide range of 0:05:59.040 --> 0:06:03.279 experience of life. But this was not a jury of 0:06:03.400 --> 0:06:08.200 Kevin Henry's peers. These were not people who in any 0:06:08.200 --> 0:06:12.320 way could relate to Kevin Henry. Had there been at 0:06:12.440 --> 0:06:17.400 least one Indigenous person on the panel of jurors, perhaps 0:06:17.440 --> 0:06:20.919 they would have been able to explain the issues such 0:06:20.960 --> 0:06:25.680 as gratuitous concurrence. They might not have understood the technicalities, 0:06:26.200 --> 0:06:29.440 but they could at least explain the issues that Aboriginal 0:06:29.480 --> 0:06:33.919 people have always had dealing with the police, and the 0:06:33.960 --> 0:06:38.120 issues Indigenous people face when they're questioned by police, not 0:06:38.279 --> 0:06:44.440 provided legal services, not provided interpreters, and the general distrust 0:06:44.560 --> 0:06:46.279 of law enforcement. 0:06:46.279 --> 0:06:48.880 Now, in the previous case we told you about Brandon 0:06:48.960 --> 0:06:53.400 Butler's trial over in the United States. His jury was 0:06:53.440 --> 0:06:56.840 a perfect representation of the community that he was from. 0:06:57.360 --> 0:07:01.200 The demographics were generally a good breakdown, so his jury 0:07:01.240 --> 0:07:06.560 included a number of African American jurors. Now, Brandon Butler 0:07:06.640 --> 0:07:09.120 was acquitted of murder, and it's shown in that Oscar 0:07:09.160 --> 0:07:13.440 Award winning documentary. Consider that when you think of the 0:07:13.600 --> 0:07:17.360 jury and when you hear what Martin is going to 0:07:17.400 --> 0:07:19.560 read in next from the judge. 0:07:20.040 --> 0:07:23.960 So, after the judge had explained what reasonable doubt is 0:07:23.960 --> 0:07:28.000 to the jury, he then outlined what each of the 0:07:28.120 --> 0:07:32.000 charges were that the jury had to consider. Now, we 0:07:32.080 --> 0:07:35.440 won't go over the charges that were laid against the women, 0:07:36.240 --> 0:07:39.640 but remember Kevin Henry was part of a trial that 0:07:39.760 --> 0:07:43.320 included two of the women who were found guilty of 0:07:43.360 --> 0:07:47.920 assaulting Linder. So those parts of the judge's instructions we 0:07:47.960 --> 0:07:52.320 won't include because they don't relate to Kevin Henry. But 0:07:52.400 --> 0:07:56.000 here's what does and I'm quoting the judge. Now, the 0:07:56.040 --> 0:07:59.360 fifth count is the one of the murder that on 0:07:59.440 --> 0:08:03.400 the thirty first day of August nineteen ninety one at 0:08:03.520 --> 0:08:09.960 Rockhampton in the state of Queensland. Kevin Allen Henry murdered Linda, 0:08:10.720 --> 0:08:14.080 remember when leaving out her last name in respect for 0:08:14.160 --> 0:08:19.320 her family. Now, the definition of murder involves considering a 0:08:19.480 --> 0:08:24.000 number of things. First of all, any person who causes 0:08:24.040 --> 0:08:29.240 the death of another directly or indirectly by any means 0:08:29.400 --> 0:08:34.000 whatever is deemed to have killed that person. That means, 0:08:34.240 --> 0:08:39.200 for present purposes, if Kevin Henry through the unconscious or 0:08:39.240 --> 0:08:43.400 badly abused body of Linda in the river and left 0:08:43.440 --> 0:08:47.000 her drift there, and she then drowned, he would have 0:08:47.080 --> 0:08:51.079 deemed to have killed her. In other words, a person 0:08:51.160 --> 0:08:56.120 may unlawfully kill someone else without themselves actually doing the 0:08:56.200 --> 0:09:01.280 direct things that causes the death. It is not necessary 0:09:01.400 --> 0:09:03.559 for you to imagine that he stood in the water 0:09:03.800 --> 0:09:08.040 and held her head under until she was drowned. If 0:09:08.040 --> 0:09:10.680 she is thrown in the river in the condition in 0:09:10.760 --> 0:09:14.480 which she could be unlikely to look after herself, well, 0:09:14.760 --> 0:09:18.600 that would directly or indirectly cause her death by drowning. 0:09:19.720 --> 0:09:26.480 All killing is unlawful unless it is authorized, justified, or excused, 0:09:27.080 --> 0:09:33.440 or there's no authorization, justification, or excuse. Any person who 0:09:33.520 --> 0:09:37.599 unlawfully kills another with the intention of killing them or 0:09:37.640 --> 0:09:41.200 with the intention of doing them grievous bodily harm, is 0:09:41.240 --> 0:09:46.280 said to have murdered that person. So the Crown must 0:09:46.320 --> 0:09:50.240 prove an intention to kill or to do grievous bodily harm. 0:09:50.960 --> 0:09:54.040 If there is no such intention proved, but you are 0:09:54.120 --> 0:09:57.840 otherwise satisfied that the accused has caused the death of Linda, 0:09:58.800 --> 0:10:02.640 and that it was not author authorized, justified, or excused, 0:10:03.200 --> 0:10:08.680 then you would return a verdict of guilty of manslaughter. Now, 0:10:08.720 --> 0:10:12.120 having said that, it's important that you remember, as the listeners, 0:10:12.960 --> 0:10:16.880 that Kevin was not found guilty of manslaughter. He was 0:10:16.920 --> 0:10:23.400 found guilty of murder. So intent becomes very important. What 0:10:23.520 --> 0:10:27.000 the judge has just explained is that Kevin Henry had 0:10:27.040 --> 0:10:30.480 to have had the intention of killing Linda. 0:10:31.640 --> 0:10:35.880 Now, the judge's summation went for about fifty pages, but 0:10:36.160 --> 0:10:38.840 Martin is now going to outline a number of the 0:10:38.920 --> 0:10:41.680 key points the judge raised and told the jury. 0:10:43.440 --> 0:10:46.520 The judge was quite keen to stress on a number 0:10:46.520 --> 0:10:50.560 of occasions that the jury was not allowed to simply 0:10:50.760 --> 0:10:57.160 jump to conclusions. And I'll quote the judge. It's not 0:10:57.240 --> 0:11:01.679 a matter of simply saying, well, this is a dreadful situation. 0:11:02.240 --> 0:11:05.960 If there's anything pointing to guilt, well we'll have him. 0:11:06.960 --> 0:11:10.079 And on quite a number of occasions, the judge wanted 0:11:10.120 --> 0:11:16.360 to make this clear that speculation was not acceptable, that 0:11:16.520 --> 0:11:21.480 jumping to conclusions was not acceptable, that despite the horror 0:11:21.559 --> 0:11:26.679 of what was done to Linda, the jury, in particular 0:11:26.800 --> 0:11:31.680 relating to Kevin Henry, remembering unlike the women, there was 0:11:31.760 --> 0:11:37.840 no forensic evidence linking Kevin whatsoever, that they couldn't simply 0:11:37.880 --> 0:11:41.720 assume that there was and that it was missed. They 0:11:41.760 --> 0:11:45.400 couldn't simply make up their own mind that someone had 0:11:45.440 --> 0:11:48.160 to go to jail for this, and because Kevin Henry 0:11:48.200 --> 0:11:50.560 was in front of them, that it would be him. 0:11:51.520 --> 0:11:55.120 The judge was also very keen to point out something 0:11:55.160 --> 0:12:00.000 we've stressed to you, and this is what the judge says. 0:12:00.000 --> 0:12:03.520 It is a rather bizarre circumstance here that for some 0:12:03.720 --> 0:12:07.120 reason the police charged the three women with murder at 0:12:07.120 --> 0:12:11.040 one stage, although there doesn't seem at that stage to 0:12:11.120 --> 0:12:15.280 have been any evidence that they were involved in Linda's death, 0:12:16.240 --> 0:12:20.360 And this action tends to suggest a willingness to jump 0:12:20.400 --> 0:12:25.680 to conclusions rather than to get evidence assembled which proves something. 0:12:26.920 --> 0:12:30.920 If that has happened, and happened with trained police officers. 0:12:31.480 --> 0:12:35.840 It is very very important that twelve citizens who are 0:12:35.880 --> 0:12:40.320 assembled as a jury don't do the same thing. You 0:12:40.400 --> 0:12:44.360 may only return a verdict of guilty against Kevin Henry 0:12:44.559 --> 0:12:48.000 on the charge of murder if you are satisfied on 0:12:48.120 --> 0:12:51.600 the evidence that he did it. You must not jump 0:12:51.640 --> 0:12:57.400 to conclusions. You need to evaluate these so called confessions, 0:12:58.000 --> 0:13:01.360 looking at the witnesses who say they heard these things 0:13:01.960 --> 0:13:05.920 and deciding whether you can rely on them. And then 0:13:06.000 --> 0:13:09.440 if you are satisfied with the actual words, you have 0:13:09.520 --> 0:13:12.600 to be satisfied that they amount to a confession of 0:13:12.760 --> 0:13:17.000 murder and not to some other statement or garbled account 0:13:17.400 --> 0:13:22.079 that doesn't tally with the other evidence. So quite clearly, 0:13:22.840 --> 0:13:26.800 the judge was very keen to raise the issue of 0:13:27.160 --> 0:13:31.520 the three women being charged with murder and Kevin Henry 0:13:31.559 --> 0:13:35.520 being charged with murder on the same day prior to 0:13:35.559 --> 0:13:39.720 their being any evidence found by police that either implicated 0:13:39.760 --> 0:13:44.600 the women or Kevin Henry. He also wanted to make 0:13:44.679 --> 0:13:51.760 it quite clear that the statements made by witnesses had 0:13:51.800 --> 0:13:55.920 to be evaluated. You couldn't just simply rely on them 0:13:56.240 --> 0:13:59.240 because they were said. They had to match with the 0:13:59.280 --> 0:14:04.079 evidence and the jury had to satisfy themselves that not 0:14:04.120 --> 0:14:07.439 only were these statements made, not only were they truthful, 0:14:07.960 --> 0:14:11.120 not only did they match the evidence that they had 0:14:11.160 --> 0:14:17.439 to be linked absolutely to murder. Otherwise it simply does 0:14:17.559 --> 0:14:20.800 not add up to beyond a reasonable doubt. 0:14:21.240 --> 0:14:25.680 So given that manin, did the judge raise any doubt 0:14:25.720 --> 0:14:26.920 about those statements. 0:14:28.080 --> 0:14:31.080 The judge certainly did, and he spent a good deal 0:14:31.120 --> 0:14:37.880 of time, particularly analyzing the statements of Susan Aubrey, remembering 0:14:37.960 --> 0:14:42.400 that she was Kevin Henry's co accused and was convicted 0:14:42.520 --> 0:14:46.400 of the grievous bodily harm, and the judge was a 0:14:46.680 --> 0:14:51.160 concerned that she was also on trial alongside Kevin Henry, 0:14:52.040 --> 0:14:56.280 but also that her statements had changed, and that she'd 0:14:56.440 --> 0:15:02.280 implicated Kevin Henry once she herself had been charged. And 0:15:02.360 --> 0:15:06.200 in fact, he made quite a distinctive ruling, and this 0:15:06.320 --> 0:15:10.080 is what he says. She gives you a very good 0:15:10.160 --> 0:15:13.400 illustration of why this is so, because she has been 0:15:13.480 --> 0:15:18.080 interviewed twice and has changed her story the second time, 0:15:18.560 --> 0:15:22.680 blaming Henry a great deal than in her first account. 0:15:24.040 --> 0:15:27.520 In neither instance has she given her evidence on oath, 0:15:27.920 --> 0:15:31.640 and in neither instance is she cross examined in your presence. 0:15:32.520 --> 0:15:38.120 So from Henry's point of view, you must disregard it. 0:15:38.120 --> 0:15:43.400 It's not admissible in law against him. Now, given the 0:15:43.480 --> 0:15:47.760 judge made this very clear to the jury, it seems 0:15:47.840 --> 0:15:50.440 to me quite clear that he was worried the statement 0:15:50.560 --> 0:15:55.920 Susan Aubrey had made were not accurate and were potentially false. 0:15:56.440 --> 0:16:00.720 And we've explained previously why that would be so, because 0:16:01.360 --> 0:16:05.840 Susan Aubrey changed her statements on a number of occasions, 0:16:06.680 --> 0:16:11.320 first never mentioning Kevin Henry, and then later after she 0:16:11.440 --> 0:16:15.760 herself had been charged with murder, suddenly she was raising 0:16:16.000 --> 0:16:21.360 Kevin Henry's name left, right and center. The jury may 0:16:21.480 --> 0:16:26.239 have taken that into consideration. They may have actually believed 0:16:26.400 --> 0:16:30.080 Susan Aubrey despite there being no evidence what she says 0:16:30.720 --> 0:16:35.520 is factual in any way, and the judge was very 0:16:35.600 --> 0:16:39.720 clear to tell them that what she said could not 0:16:39.880 --> 0:16:44.880 be used against Kevin Henry, must be disregarded and it 0:16:44.920 --> 0:16:48.640 was not admissible in law against him. But this was 0:16:48.680 --> 0:16:51.800 one of the problems with there being a co trial 0:16:52.040 --> 0:16:56.720 a joint trial, that despite this evidence being not admissible, 0:16:57.360 --> 0:17:00.600 it had been heard by the jurors because because Susan 0:17:00.640 --> 0:17:05.600 Aubrey was on trial alongside Kevin Henry. So one thing 0:17:05.680 --> 0:17:10.760 to consider, did the jury get confused by these instructions 0:17:11.359 --> 0:17:17.040 and was Kevin Henry found guilty partly as confusion arisen 0:17:17.280 --> 0:17:20.080 out of the fact there was a joint trial and 0:17:20.119 --> 0:17:23.840 they heard evidence they would not have heard had Kevin 0:17:23.880 --> 0:17:26.600 Henry been on trial just on his own. 0:17:27.320 --> 0:17:30.400 Now, Mardon, A big part of this podcast has rested 0:17:30.480 --> 0:17:33.720 on Kevin's confession, and what we say is that it's 0:17:33.840 --> 0:17:36.000 very likely that it was forced and that became a 0:17:36.040 --> 0:17:40.800 false confession. Anywhere in the summation, does the judge allude 0:17:40.880 --> 0:17:42.440 to this, Yeah. 0:17:42.240 --> 0:17:45.119 He certainly does. And again, like on many of the 0:17:45.200 --> 0:17:50.000 issues we've raised, the judge raised them also, and he 0:17:50.119 --> 0:17:54.720 refers to a forced confession as if the person giving 0:17:54.800 --> 0:17:58.479 those answers that are false are telling a lie. And 0:17:58.560 --> 0:18:02.040 so that if Kevin Henry at any point said he 0:18:02.080 --> 0:18:05.600 did it, he could in fact be lying. And there's 0:18:05.800 --> 0:18:11.480 reasons people lie, and as we've spoken about, that could 0:18:11.520 --> 0:18:15.359 be because of intimidation, it could be out of those 0:18:15.400 --> 0:18:19.840 answers being coerced or forced. It could be because that 0:18:19.880 --> 0:18:23.240 person doesn't want to get in trouble, doesn't want to 0:18:23.280 --> 0:18:28.800 implicate others. Maybe they lie because they were simply intoxicated 0:18:28.920 --> 0:18:32.320 and don't remember anything at all. And this is what 0:18:32.359 --> 0:18:36.040 the judge said. As I said, people may lie for 0:18:36.119 --> 0:18:40.560 a variety of reasons. They may not want others to 0:18:40.680 --> 0:18:45.000 find out. There are various reasons for lying which don't 0:18:45.040 --> 0:18:49.720 amount to a consciousness of guilt. But more importantly, at 0:18:49.760 --> 0:18:52.960 the end of the day, there must be other evidence 0:18:53.080 --> 0:18:56.919 that proves guilt. Not just other evidence that proves what 0:18:57.080 --> 0:19:00.280 is said is a lie, but there must be other 0:19:00.320 --> 0:19:04.680 evidence that proves guilt. This is very important in the 0:19:04.720 --> 0:19:08.520 case of Henry. Keep that in mind when we come 0:19:08.600 --> 0:19:13.600 to it. So here the judge was particularly alluding to 0:19:13.920 --> 0:19:17.720 Kevin Henry and making sure that the jury kept that 0:19:17.840 --> 0:19:21.120 in mind when they came to the final wrap up 0:19:21.240 --> 0:19:24.199 of what they were going to have to decide. And 0:19:24.480 --> 0:19:28.639 what he was also saying was that if this confession 0:19:29.080 --> 0:19:31.600 was a lie, so that it was coerced and what 0:19:31.800 --> 0:19:36.280 was in it is not accurate, you can't simply convict 0:19:36.480 --> 0:19:40.239 Kevin based on that. There must be other evidence that 0:19:40.359 --> 0:19:44.600 proved guilt. And as the judge said previously, that can't 0:19:44.640 --> 0:19:48.000 just be other people's statements. That could also be lies, 0:19:48.280 --> 0:19:51.280 that would just be speculation. And this is where the 0:19:51.320 --> 0:19:54.560 issue of a lack of forensic evidence, a lack of 0:19:54.640 --> 0:19:59.679 eyewitness testimony, and all the issues we've raised about tidal 0:19:59.720 --> 0:20:03.880 record cords, the way the forensics were handled, the fact 0:20:03.920 --> 0:20:07.119 that none of it linked Kevin Henry comes into play. 0:20:07.720 --> 0:20:10.439 The judge was very clear to point out to the 0:20:10.520 --> 0:20:15.680 jury that a confession coerced or not was not something 0:20:16.040 --> 0:20:17.760 the jury could purely rely on. 0:20:18.600 --> 0:20:22.080 Now that seems to be quite hard to understand. Is 0:20:22.119 --> 0:20:27.280 it possible that the jury understood what the judge might 0:20:27.280 --> 0:20:28.160 have been trying to say. 0:20:28.760 --> 0:20:33.560 I think it's possible they either misunderstood, disregarded what the 0:20:33.640 --> 0:20:38.200 judge was saying, or was simply confused. Remembering the instructions 0:20:38.240 --> 0:20:43.520 were very long, So about twenty pages after the judge 0:20:43.560 --> 0:20:48.159 had said what I just read out, he continued to 0:20:48.280 --> 0:20:52.159 try and reinforce this. He was very clear on trying 0:20:52.200 --> 0:20:55.840 to make sure the jury didn't jump to conclusions and 0:20:55.960 --> 0:21:01.800 understood that lies and confessions that particularly don't add up 0:21:01.840 --> 0:21:05.560 with the known facts needed to be treated as such, 0:21:05.640 --> 0:21:09.480 and that they needed other evidence. And this is what 0:21:09.560 --> 0:21:12.760 he said some twenty pages later as a way of 0:21:12.800 --> 0:21:17.680 reminding the jury that you must not jump to conclusions. 0:21:18.640 --> 0:21:23.040 You need to evaluate these so called confessions, looking at 0:21:23.080 --> 0:21:27.040 the witnesses who say they heard these things, and deciding 0:21:27.160 --> 0:21:30.040 whether you can rely on them. And then if you 0:21:30.080 --> 0:21:33.879 are satisfied with the actual words, you have to be 0:21:33.960 --> 0:21:37.719 satisfied that they amount to a confession of murder and 0:21:37.800 --> 0:21:41.440 not to some other statement or garbled account that doesn't 0:21:41.480 --> 0:21:45.600 tally with the other evidence. This is vital because when 0:21:45.760 --> 0:21:50.840 the judge says looking at the witnesses, he's not just 0:21:50.960 --> 0:21:54.520 talking about the people at Tanuba, he's talking about the 0:21:54.560 --> 0:21:59.159 police as well. And listen to his words again, you 0:21:59.280 --> 0:22:06.080 need to these so called confessions. He doesn't say confessions, 0:22:06.119 --> 0:22:11.560 he doesn't say statements. He makes it very clear that 0:22:11.600 --> 0:22:16.080 the jury needs to consider them as potentially so called confessions, 0:22:16.640 --> 0:22:19.560 as in they could have been coerced, they could have 0:22:19.600 --> 0:22:22.359 been made up, and they may not be based in 0:22:22.520 --> 0:22:24.000 any fact whatsoever. 0:22:24.800 --> 0:22:28.800 Did the judge actually emphasize the difficulty of Kevin's defense 0:22:28.840 --> 0:22:32.320 given that it was a trial the two other women 0:22:32.320 --> 0:22:33.360 on trial with Kevin. 0:22:34.160 --> 0:22:36.240 Yeah, he did raise it a number of times. And 0:22:36.280 --> 0:22:39.360 of course, because the issue is that the jury will 0:22:39.359 --> 0:22:42.160 have heard a lot of evidence that just didn't even 0:22:42.200 --> 0:22:45.399 relate to Kevin. All the things to do with the 0:22:45.440 --> 0:22:49.159 women committing the assault against Linda for which there was 0:22:49.280 --> 0:22:53.480 forensic evidence was heard by the same jury who were 0:22:53.720 --> 0:22:56.800 sitting in judgment of Kevin Henry and looking at Kevin 0:22:57.720 --> 0:23:02.919 as this evidence was being resented. And so the judge 0:23:03.000 --> 0:23:06.040 raised the issue about the difficulty for the defense in 0:23:06.160 --> 0:23:10.560 such a scenario, and perhaps what would have happened if 0:23:10.640 --> 0:23:13.440 Kevin had a trial of his own, And this is 0:23:13.480 --> 0:23:17.800 what the judge said. If Kevin Henry stood trial on 0:23:17.880 --> 0:23:21.919 his own, it wouldn't, of course, have been possible to 0:23:22.000 --> 0:23:25.840 have this other material from Susan Aubury come out as 0:23:25.920 --> 0:23:30.360 part of the crown case. The conduct of a defense 0:23:30.480 --> 0:23:34.919 is a thing that requires painful judgment. Often, as I 0:23:35.000 --> 0:23:38.919 understand the way mister Murray has conducted the defense, he 0:23:38.960 --> 0:23:42.360 has let this material go before you to show how 0:23:42.440 --> 0:23:46.680 once the Tenuba community was confronted with a corpse, as 0:23:46.720 --> 0:23:49.919 it were, it looked for someone to carry the blame, 0:23:50.880 --> 0:23:53.919 and Kevin Henry was the person who ended up with 0:23:54.040 --> 0:23:58.240 that burden. You have the allegations that Susan Aubrey made 0:23:58.320 --> 0:24:02.160 which demonstrate the possible truth of this line of argument. 0:24:03.359 --> 0:24:05.960 So what the judge is saying there is that the 0:24:06.040 --> 0:24:10.160 multiple statements of Susan Aubrey would not have been heard 0:24:10.359 --> 0:24:13.520 by the jury if Kevin was on trial on his own, 0:24:14.320 --> 0:24:19.160 and that the truth around Susan Aubrey's conduct in all 0:24:19.240 --> 0:24:25.000 circumstances would perhaps reinforce this line of argument that the 0:24:25.040 --> 0:24:28.520 Tanuba community, or at least some people who were there, 0:24:28.960 --> 0:24:32.840 decided to put the blame on Kevin Henry because that's 0:24:32.880 --> 0:24:37.439 what Susan Aubrey did, and there were clearly questions about 0:24:37.520 --> 0:24:40.080 the validity and the truth of her statements. 0:24:40.640 --> 0:24:41.359 So mardon the. 0:24:41.359 --> 0:24:43.320 Other part of the trial, as I can imagine, the 0:24:43.400 --> 0:24:46.800 jury was confronted with a lot of complicated forensic evidence 0:24:46.920 --> 0:24:48.840 that wouldn't see it complicated. 0:24:48.359 --> 0:24:51.280 Them at the time. Was it something that the judge 0:24:51.359 --> 0:24:53.360 actually talks about of this sumnation. 0:24:54.359 --> 0:24:57.439 Yeah, the judge spends a considerable period of time on 0:24:57.480 --> 0:25:01.960 the forensic evidence, and as the judge says, almost all 0:25:02.080 --> 0:25:06.760 that forensic evidence relates to the women and not Kevin Henry. 0:25:07.240 --> 0:25:10.960 The judge also explains quite a number of times that 0:25:11.000 --> 0:25:15.239 the issues of the tide play a large part, and 0:25:15.800 --> 0:25:19.200 what he's trying to say to the jury is that 0:25:19.480 --> 0:25:23.040 there are many issues here, not just one where there 0:25:23.119 --> 0:25:26.520 could be doubt, and that the jury has to be 0:25:26.600 --> 0:25:30.439 satisfied beyond a reasonable doubt, and that a lot of 0:25:30.480 --> 0:25:34.000 this forensic evidence that was presented and a lot of 0:25:34.040 --> 0:25:38.800 the other evidence that was presented could possibly raise that doubt. 0:25:39.600 --> 0:25:42.560 And so here's what he said towards the end of 0:25:42.600 --> 0:25:48.400 his summation. Your task is to be satisfied beyond reasonable 0:25:48.480 --> 0:25:52.919 doubt on the evidence, not to say to yourself, this 0:25:53.080 --> 0:25:56.000 is the most terrible crime. We must bring someone to 0:25:56.040 --> 0:26:00.200 book for it. You must return a verdict on the 0:26:00.240 --> 0:26:05.560 evidence that satisfies you beyond reasonable doubt. Now this is 0:26:05.640 --> 0:26:09.840 your responsibility, ladies and gentlemen, and I simply emphasize this 0:26:10.040 --> 0:26:13.080 to you. I wouldn't suggest for one minute that you 0:26:13.119 --> 0:26:16.520 would do other than return a verdict according to the evidence. 0:26:17.280 --> 0:26:20.520 But there is this hazard in this case that we 0:26:20.600 --> 0:26:24.520 may jump to conclusions, and you must not do that. 0:26:25.359 --> 0:26:28.960 You must follow the path of the evidence. You must 0:26:29.040 --> 0:26:31.919 find that there is evidence that satisfies you beyond a 0:26:32.000 --> 0:26:36.000 reasonable doubt that Kevin Henry was the person who put 0:26:36.119 --> 0:26:40.280 the body in the river. If after you've considered all 0:26:40.320 --> 0:26:43.200 this carefully, you are left with a doubt about that. 0:26:44.359 --> 0:26:47.919 If the duck Heart suggestion raises any doubt, if the 0:26:47.960 --> 0:26:51.000 people down the river raise any doubt, or if the 0:26:51.119 --> 0:26:54.760 other circumstances that you see there leave you with a doubt, 0:26:55.359 --> 0:26:59.359 then of course you must acquit Kevin Henry of the 0:26:59.440 --> 0:26:59.879 charge of me. 0:27:01.480 --> 0:27:05.040 So at this point the jury retired at three point 0:27:05.080 --> 0:27:09.440 thirty two pm. Mardin what happened after they retired. 0:27:09.840 --> 0:27:14.000 Well, immediately after they were retired to consider their verdict, 0:27:14.440 --> 0:27:18.200