Sunday, December 9, 2012


10 December 2012 Larissa Behrendt
Larissa Behrendt Can our legal system, which is so quick to lock up Indigenous offenders, deliver justice for Indigenous people when they are the victims of crime, asks Larissa Behrendt.
Human Rights Day is a time for reflection on how we meet benchmarks for human rights protections and where we can improve our protections; particularly of the disadvantaged and marginalised.
One issue that concerns me, perhaps due to my background as a lawyer, relates to our criminal justice system. New data released last week shows that the incarceration rates for Aboriginal women have increased. According to research by University of New South Wales's Professor Eileen Baldry, the number of prisoners in Australia has risen by 31 per cent in the last 10 years. Women make up only 7 per cent of the overall prison population, but the number of women prisoners has increased by 48 per cent in the last decade.
The largest rise in the prison population is amongst Aboriginal and Torres Strait Islander women, particularly in the Northern Territory, Western Australia and New South Wales.
Professor Baldry explains that the reason for the increase is that people are being locked up when they have other underlying issues that aren't being addressed - particularly people with a disability. Aboriginal women have a much higher rate of remand than others, but they also have shorter sentences because on the whole their offences are not serious. Although this trend is concerning, it is not surprising. Despite an extensive Royal Commission into Aboriginal Deaths in Custody, the representation of Indigenous people in the criminal justice system has also increased.
Today, we still see deaths in custody in circumstances that concern and distress the Indigenous community. Cameron Doomadgee on Palm Island, Thomas 'TJ' Hickey in Redfern and, just this year, Kwementyaye Briscoe in Alice Springs.
Just before the final report from the Royal Commission into Aboriginal Deaths in Custody was handed down, in a five month period between the end of 1990 and the beginning of 1991, three children living on the Bowraville mission were murdered. They were 16-year-old Colleen Walker, four-year-old Evelyn Greenup and 16-year-old Clinton Speedy (pictured above).
Until Clinton's body was found a few months after he disappeared, the police treated the disappearances as though the children had run away, despite insistence from the families that something was terribly wrong.
A few weeks after Clinton's body was recovered, the clothes Colleen was wearing the night she disappeared were found in a river further down the same road and, after a renewed search, the skeletal remains of little Evelyn were found in the bush and off the same track as Clinton Speedy's body. When an investigation was started, the officers in charge were not experienced in homicide, but in child protection. The tensions between the Aboriginal community and the police, already at a low point, were further fractured by what the community saw as the failure to act decisively. A lack of trust between the Aboriginal community and the police meant that police were not able to gain information, and along the way they made other critical mistakes in the handling of evidence.
There was only one suspect, a white man who was seen with or near all three children before they disappeared. He was eventually charged with Clinton's murder and later with Evelyn's. He was the prime suspect in Colleen's murder as well. The man accused of killing Clinton and Evelyn was later tried and acquitted in separate trials.
A strike force was established in 1997 that brought together detectives from Homicide, Major Crime and Local Area Commands. It was headed by Detective Inspector Gary Jubelin. The first thing that Jubelin did was build a relationship with the Aboriginal community. The strike force recommended charges be laid against the same man who had been acquitted of Clinton's murder, but the Director of Public Prosecutions refused to proceed.
But the families did not stop there. They lobbied for a coronial inquest. It was held in 2004. Seen side-by-side, the evidence became overwhelming and the State Coroner recommended that the cases should be brought together.
In 2006, the same man again was put on trial for the murder of Evelyn. He was again acquitted due to lack of evidence.
Many people would have given up, convinced the system would not deliver justice for these three murdered children. But the families decided to lobby to change the law against double jeopardy - the old common law rule that says a person acquitted of a crime cannot be retried for it. In a move that was controversial with the legal fraternity, the families succeeded. Two NSW parliamentarians mentioned the Bowraville case specifically as a reason for the new law.
With the expectation that this change in legislation would finally mean a day in court, the families expected the then Attorney-General, John Hatzistergos, to refer the matter to the NSW Court of Criminal Appeal to determine whether it would proceed to a new trial. In the end, he decided not to proceed. The families sought advice from Chris Barry SC who, agreeing with the strike force, Coroner and other legal experts working on the case, determined that there was enough evidence for a conviction in all three murders.
The current NSW Attorney-General, Greg Smith, in the lead up to the last election, promised to reconsider that decision. Over 18 months later, the families are still waiting to hear what he will decide. And his decision will determine whether this has just been another false promise of the system to deliver justice or if after all this time they will finally get a fair hearing in a court of law.
So, on this Human Rights Day, the question for me is whether this legal system, which is so quick to lock up Indigenous offenders, will deliver justice for Indigenous people when they are the victims of crime?
Larissa Behrendt is Professor of Law and and Director of Research at the Jumbunna Indigenous House of Learning at the University of Technology, Sydney. View her full profile here.

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