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.
http://www.abc.net.au/unleashed/4419290.html
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