White justice, black suffering - Griffith Review
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White justice, black suffering

Extracting false confessions

Finalist for the 2019 Walkley Award for Coverage of Indigenous Affairs


This story contains descriptions of violence.

FOR THE ENTIRETY of my childhood – all through the ’90s, the early noughts – I watched my father go through the same routine. Most days, he rose before the sun, putting on the kettle and sipping coffee as he watched the darkness fade into light. His uniform would be ironed and laid out from the night before, each crease perfectly pressed, just as he learned in the army. He would brush his teeth, comb his bushy hair and kiss us – his children – goodbye, before pushing out the door to make the twenty-minute drive to the Etna Creek jail, just outside Rockhampton.

Dad began this job in 1989 in the days of the Royal Commission into Aboriginal Deaths in Custody. He was not the only black prison guard on staff – in fact, at one point, Rockhampton’s jail had the highest percentage of Indigenous employees in the state. And yet, there were even more Murris locked up. The first thing that shocked Dad was just how many were inside, and over the next two decades he would see many of his own relatives coming through the gates.

Although small changes were made at Etna Creek after the Royal Commission, Dad noticed these did not amount to much – and in fact, during the last decade, black jailing rates have grown in Queensland by 39 per cent. Prison did not change, but it did have a way of changing a person.

If you were in there long enough – as a prisoner or an officer – you’d realise life inside was like a play, and no one really strayed from the script. Every morning, the prisoners would come out of their cells in the same order, and Dad knew in advance who were the leaders, and who would be dragging their feet; who would be tidy, and who would look like they had just jumped out of bed. People began to lose perspective. One long timer once said he thought the prison guards went into the cupboard at night and were pulled out in the morning. He had been in so long he couldn’t envision a life outside.

Because this life was so tightly scripted, the smallest deviation, the slightest detail askew, could build as quickly as a tropical cyclone. Guards might goad the prisoners, tug at them or taunt them, and while an inmate’s routine might be predictable, their trigger was not. Dad never saw much point in acting like that, because he knew if things had turned out differently, it could have been him on the other side of the bars. He always thought it was his job to make the bars disappear. Part of that meant respecting the inmates as human beings, and part of that respect meant not asking them why they were there.

Of course, if they wanted to tell you, Dad said, you let them. And more often than not, they would plead their innocence. Dad didn’t think it was his job to judge: he would tell them, ‘I hear you, but there is only one person who knows and that’s Him up there.’ In his years at the prison, out of all the people he met, there was only one who gave him pause for thought.

His name was Kevin Henry, but most people called him ‘Kurtain’ – a childhood nickname that stuck after he emerged from the shower one day and draped himself in a curtain rather than a towel. Dad had known Kurtain since he was seventeen, when he was incarcerated in the adult jail for nonviolent offences. But in 1991, at the age of twenty-two, Kurtain was given a life sentence for rape and murder.

He was quite short and slim, with a penchant for talking a bit too much. He entered jail with the scars of his childhood, and in the early days of incarceration he’d made new ones, taking razor blades to his skin and burning his arms. He was sent away to Brisbane and to Townsville, away from his countrymen from Woorabinda; he was moved around every couple of months. These were the hard days, but as time went by, he adjusted as best as he could and made no trouble. He retreated into prison life and became a part of the play in which all prisoners inevitably performed; he made his own part in the script. Within the limits of his days, he mentored the young ones, played footy and hit the boxing bag, and he began painting his stories. His art became part of his healing.

Through all this, he never stopped pleading his innocence. He never stopped trying to get someone, anyone, to notice.

It was not up to Dad to judge – that was not his job. However, he had his suspicions about Kurtain’s conviction. It was a conversation he had with Kurtain in 2007 that raised doubts in his mind – but he did not tell anyone, keeping it tucked under his uniform, close to his black skin.

In 2015, I made my way back to Queensland after ten years working as an Aboriginal affairs journalist down south. I was co-hosting the daily current affairs show Let’s Talk on 98.9FM with the late and legendary Tiga Bayles when I invited Yuin human rights lawyer Martin Hodgson on for a chat. Hodgson had spent a decade working on cases in the Middle East, Asia, Europe and America, with clients including David Hicks, Peter Greste, members of the Bali Nine and Amanda Knox. He had also worked with cases of wrongful conviction, including the death penalty case of African-American man Rodney Reed – the topic of our conversation that day. As we spoke about the factors that could lead to wrongful conviction in the United States, Hodgson expressed his frustration about our failure to address the same issues in Australia, especially where Aboriginal prisoners are concerned.

The legal system is ‘very much stacked against poor people’, Hodgson said. ‘That’s why prisons in Australia are filled predominately with poor white people, but overwhelmingly with Indigenous people, because there are no funds to run the cases how they deserve to be run… So I think a really important question we need to ask is how many Indigenous prisoners in Australia are innocent?’

Hodgson believed many Indigenous prisoners had been wrongfully convicted, and that the issue was not receiving the widespread attention it deserved. We just needed one high-profile case, he said, to show the rest of the country that this was a problem in our justice system.

I immediately thought of Kurtain. I had heard about his case a few years earlier, and there had been persistent rumours of his innocence among the Aboriginal community in Rockhampton. That day, Hodgson’s question – ‘how many Indigenous prisoners in Australia are innocent?’ – stuck in my mind. I rang my dad, and he told me the rest of Kurtain’s story.

 

IN 2007, DAD was leading Kurtain into the ‘airlock’. They were in a new jail, and it was difficult to find a place to have a conversation without surveillance. The airlock – the small room between the block and the yards, where both prisoner and guard had to wait to be buzzed in by the controller – was one of those places. As the airlock door closed behind them, Kurtain raised his head.

‘A detective put a gun to my head,’ Kurtain told my dad. ‘They said they were gonna take me up and throw me off Mount Archer if I didn’t confess.’

Dad had reason to believe him: he’d been on shift when Kurtain was brought back in handcuffs after his conviction in 1992. The prison guard who sat through the trial had walked past Dad and said, ‘Oh, I don’t know about this one!’ Dad was shocked: he didn’t know many guards who gave any prisoner the benefit of the doubt.

Kurtain’s conviction was based on two confessions: one given in the watch house on 1 September 1991, the day after the crime, and the other given to two arresting police officers on 5 September 1991. What Kurtain told my dad that day – that a police officer ‘had put a gun’ to his head – referred to the watch house confession. As Dad told me what Kurtain told him, my instinctive reaction was to believe Kurtain – because I often believed blackfellas over the word of police. What I had trouble understanding was how someone could confess to a crime they did not commit.

Martin Hodgson had experience of this. To a layman, he said, it was difficult to understand, but it was actually a very common occurrence. There is limited research on this in Australia, but in the US a large body of research underpins the prevalence of false confessions and is backed by statistics on wrongful convictions. The US-based Innocence Project says that in a quarter of wrongful convictions overturned on DNA evidence, the person gave a false confession.

Talking to Dad, I realised there was the potential that Kurtain had given not one, but two, false confessions. It was time to revisit the facts of the case.

 

ON 1 SEPTEMBER 1991, the body of an Indigenous woman called Linda was found on the northern bank of the Fitzroy River, the large waterway that runs through the Central Queensland town of Rockhampton. For thousands of years before European invasion, the Darumbal peoples called this river ‘Tunuba’, and it was an artery for country – a lifeline that fed the lands and people around it. Linda’s homelands were in South Australia, and she had only been in Rockhampton for a short while before her death. A few days before she was found, she’d been heard arguing about land rights with a white man in one of the pubs. She was a strong, successful Aboriginal woman: a mother of four, a leader in Aboriginal early childhood education and a cultural woman who knew her ancestral language. She was also suffering from schizophrenia.

Her body was found early on this Sunday morning on a shallow bank just outside the city reaches. It was low tide and the river had retreated to expose its muddy banks to the Queensland sun. Within hours, police focused on the residents of Toonooba House, an Aboriginal alcohol and rehabilitation centre run by the Anglican charity Careforce in the ‘old morgue’ building on the river’s southern bank. At nights and weekends, Toonooba House was closed, but the bottom of the building was left open for those with nowhere else to go. Toonooba House was seen as a sanctuary for blackfellas on the riverbank, but it was not a safe place for Linda. On Saturday 31 August, she was brutally assaulted by three women. The alcohol-fuelled assault was long and sustained, resulting in severe head trauma as well as injuries to Linda’s body and private area. It was witnessed by up to thirty-five people – including Kurtain, who says at one point he tried to intervene to stop it.

Kurtain lived in Woorabinda, two hours west, and came into town that weekend to drink with mob, staying on the mattresses strewn across the concrete floor of Toonooba House. He’d had a hard life. From the top of his left eyebrow was a scar that ran towards the back of his skull: this was from a childhood car crash that had ripped off a large portion of skin. But the deepest cuts are internal, and Kurtain, like many young Murri kids, had started drinking at twelve to forget those other injuries.

One of those early traumas was the death of his foster parents – an Aboriginal family in Woorabinda who had raised him and taught him about the land and living on country. After their deaths, he was raised in different relatives’ houses. On the Sunday Linda was found in the river, Kurtain was thrown into the watch house for public drunkenness with two other Aboriginal men from Toonooba House. The officer on duty turned on the CCTV, which was protocol when more than two people were being detained in the watch house. This camera recorded the confession Kurtain allegedly made. All three men were released the next day.

It did not take long for the police to cordon off Toonooba House as a crime scene as part of their investigation into Linda’s death, and as they gathered witness statements, a timeline of the assault – and those who’d been involved in it – emerged. While there were differences in accounts due to the intoxication of the witnesses at the time, all of them broadly corroborated with the others. On 5 September – four days after Linda’s body was found – the detective inspector gave instructions to arrest the three women for Linda’s murder.

But there was a problem. While the witness statements, the crime scene and the injuries to Linda’s body pointed to the women’s involvement in her death, the coroner determined that her cause of death was drowning. That meant whoever placed her in the river was the person who murdered her. When and how that happened was the mystery.

After the assault, the group – including Kurtain – had gone to a local pub to buy more alcohol. When they came back, in staggered groups, Linda was gone. Many of the residents assumed she’d walked away, despite her injuries. The forensic report, which showed a number of injuries, suggested she may have been unable to get up. While it appeared clear that the women committed the assault, the question now was, how did Linda end up in the river? On the morning she was arrested, one of the women involved pointed her finger at Kurtain.

On that Thursday afternoon, Kurtain was picked up off the street and taken in for questioning. Within two-and-a-half hours, he’d been charged with Linda’s murder, based on a second ‘confession’ given to the two arresting officers. In this alleged confession – recorded without legal representation – Kurtain admitted to the following events: after the rest of the group left Toonooba House on the Saturday night, he stayed behind, dragging Linda to a grassy area near the riverbank, where he said she consented to sexual intercourse with him.

But Kurtain maintained he did not place her in the river; he claimed he called an ambulance for her. Yet that day he was charged with murder, along with the three women.

It was a curious case: police alleged four people had committed the one murder, under two different sets of circumstances. The next year, the three women’s charges were downgraded to grievous bodily harm. But Kurtain was convicted of rape and murder and sentenced to life.

 

AUSTRALIANS OFTEN SPEND their leisure time binging true-crime documentaries such as Making a Murderer and The Staircase. They shake their heads at cases like the Central Park Five and forensically interrogate the potential wrongful conviction of Adnan Syed of Serial fame. They are less likely to believe that these cases of wrongful conviction, now apparently so prevalent in the US, could happen here. The US National Register of Exonerations project has counted 2,383 exonerations, with more than 20,945 years lost through time served, since 1989. In Australia, we do not have comparable statistics, although we have had high-profile wrongful conviction cases (such as Henry Keogh, Andrew Mallard and Lindy Chamberlain).

Lynn Weathered, from Griffith University’s Innocence Project, argues that Australia has many of the same causal factors leading to wrongful conviction as the US, including faulty eyewitness testimony, informer evidence, bad defence representation and overzealous policing. ‘Acknowledging that wrongful conviction occurs is the first step in addressing its correction. Further, the incidence of wrongful conviction in other countries should remind us of the flaws in our own system and provide examples of how we can act to prevent and address wrongful conviction in this country.’

Our high-profile cases are more usually seen as aberrations rather than as a systematic failure in our justice system. There remains a lack of post-appeal mechanisms for those who maintain their innocence. Appeal courts are less likely to overturn the decisions of lower courts due to the principal of finality, and appeals are usually lodged shortly after conviction, giving people limited time to gather fresh evidence. David Hamer, law professor at the University of Sydney, writes:

For conviction, guilt must be proven beyond reasonable doubt. This is intended to minimise the risk of wrongful conviction. However, it cannot totally eliminate the risk. Some innocent defendants are convicted. And then, on appeal, the defendant ‘does not come before the court as one who is “innocent”, but on the contrary as one who has been convicted by due process of law’. Instead of being presumed innocent, the defendant is presumed guilty – the conviction is presumed to be correct – and this presumption can be difficult for the defendant to displace.

For the past two decades, Kurtain has found it very hard to get people to believe in his innocence. He lost his appeal in 1993 and has been frustrated by the lack of options available to him since then. But he has not stopped trying. In 1993, he made his first complaint to Queensland’s Criminal Justice Commission (the CJC: the predecessor to the Crime and Misconduct Commission, and the current Crime and Corruption Commission), claiming he was wrongfully convicted and alleging that police officers had taken false witness statements while witnesses were intoxicated. He tried again in 1999. Both times, the commission refused to investigate, stating it was not a ‘further appeal forum’ and that it did not work as an ‘appellate court’.

In 2002, Kurtain wrote to his local Labor MP Robert Schwarten, alleging that the detectives involved in the case ‘had threatened me with a pistol to my head and threatened me they would easily dispose of me up Mt Arch(er)’ if he did not confess. Mr Schwarten forwarded the complaint to the then CMC, who referred it back to the Rockhampton police. The investigation there was conducted by a detective acting senior sergeant, who cleared the detective at the centre of the allegations. Martin Hodgson, Kurtain’s legal advocate, says it is a clear-cut case of ‘police investigating police’ and that it should have been undertaken independently.

Over the past three years, Hodgson and I have worked on a podcast to raise attention about Kurtain’s case. The podcast is broadcast on Aboriginal radio station 4US in Rockhampton and is aired inside the prison; it’s also available internationally via iTunes. Given the few legal avenues available to Kurtain, we saw a need to drum up community and media pressure. But while we have attracted support from the wider Aboriginal community, there remains little awareness of the case beyond that, despite its significance: if his conviction is overturned, Kurtain will be the longest-serving exonerated prisoner in Australia.

This year is Kurtain’s twenty-eighth behind bars.

 

IMAGINE YOU WERE in an interrogation room as a suspect for murder. Imagine the only evidence against you was the statement you were just about to give. Why on earth would you confess or even concede any detail? Most people would say, ‘that could never happen to me’. But an emerging body of research suggests the opposite, because the many examples of false confessions from the US show that it is actually quite easy for police to extract a false confession from someone, especially if they are from a marginalised background, living with a disability or intoxicated at the time.

Brandon L Garrett, a professor of law at Duke University, is a leading expert in wrongful convictions and the author of Convicting the Innocent: Where Criminal Prosecutions Go Wrong (Harvard University Press, 2011). Martin and I contacted Garrett, who sent us a case similar to Kurtain’s. Frank Sterling was convicted of murdering an elderly woman in New York state in the same year Linda died. Sterling was interrogated by police for twelve hours without a lawyer, and only the last twenty minutes of his alleged confession were videotaped, showing him ‘confessing in apparent detail, giving key facts in the case – the location of the murder, the colour of the victim’s jacket and clothing, and the use of a BB gun’. Sterling was later exonerated on DNA evidence pointing to another suspect. He had served nineteen years.

‘Sterling has explained how he was worn down during the interrogation, and ultimately decided to repeat the account the police gave him,’ Garrett said. ‘In 16 per cent of the first 250 DNA exonerations, innocent defendants falsely confessed. Frank Sterling was not alone. All but two of forty DNA exonerees [in the US] who falsely confessed were said to have confessed in detail. Their confession was contaminated.’

In fact, in 95 per cent of the false confessions Garrett has studied, it was the detectives who claimed that the wrongfully convicted offered these key details, and this knowledge – information that only the perpetrator could have known – became a core part of the prosecution’s case against them. In this way, what happens in the interrogation room can have a huge impact on the trial and the potential for wrongful conviction.

 

SEVERAL THINGS STOOD out about Kurtain’s second ‘confession’ to police on Thursday 5 September 1991. Not only was it taken with no lawyer present, it was also taken after Kurtain repeatedly asked for representation. The transcript quoted from below was included in evidence in the case:

Detective: Kevin do you recall a short while before we commenced this interview I asked you if you wished to have anyone from legal aid present, do you recall that?

Kurtain: Yeah.

Detective: And could you tell me what you said to me?

Kurtain: Yes.

Detective: Could you tell me what you – when I asked you if you wanted someone from legal aid, could you tell me what you said?

Kurtain: I want somebody here anyways…from legal aid anyways.

Detective: When I asked you before the commencement of the interview you told me that you didn’t want anybody from legal aid. Do you recall that?

Kurtain: Oh yes, yeah.

Detective: Now do you…are you saying now that you want someone from legal aid or you don’t want someone from legal aid to sit here?

Kurtain: Yeah I want someone from legal aid.

Detective: So you want someone from legal aid now?

Kurtain: Yes, yes yeah now.

Detective: Right Kurtain what I’m going to do is suspend the interview

Kurtain: Yes.

Detective: So you can get someone from legal aid okay?

Kurtain: Yes

[Interview suspended.]

American defence lawyer Patrick McGuinness has worked on over 400 homicide cases, ‘a fair few of them involving false confessions’. In McGuinness’s experience, ‘virtually all’ the false confessions he has seen were extracted without a lawyer present: ‘A lawyer would generally never permit [police] to engage in tactics that solicit false confessions.’

There was an evident power imbalance in the room on that Thursday in 1991. Not only was Kurtain only twenty-two years old, he was also illiterate and had only reached Year 9 in high school. He was in an environment in which he would be naturally anxious, and was denied a lawyer despite asking for one. There is also the very likely possibility that Kurtain was still intoxicated when the confession was obtained – a fact alluded to by his cousin, who saw the videotape at the police station in 1991 and said Kurtain looked drunk, or drowsy from sleep. To this day, Kurtain says he does not remember the details of the confession.

But there were also differences in the way he presented as an Aboriginal witness. Linguist Dr Diane Eades has written on the ways Aboriginal witnesses are viewed and misinterpreted by a predominately white justice system, and her work is largely based on the Bowraville murders of three Indigenous children on the mid-north coast of New South Wales in 1990–91. She specifically singles out the issue of gratuitous concurrence as leading to vulnerabilities. In her words, gratuitous concurrence refers to ‘the pattern of saying yes in answer to a question (or no to a negative question), regardless of actual agreement, or even understanding of the question’. This is apparent in the transcript put in evidence in the trial:

[Interview resumed]

Detective: Right this interview is now resumed. The time now is 2.27 pm. Do you agree with that time Kevin?

Kurtain: Yes.

Detective: Kevin prior to me suspending the interview you said that you wanted someone from legal aid and you told me that you wanted to get on with the interview and you didn’t want anyone from legal aid, is that correct?

Kurtain: Yes.

Detective: Now do you wish to have anyone from legal aid here or not?

Kurtain: No.

Detective: Well you are happy if we continue the interview?

Kurtain: Yes.

Detective: Without anyone from legal aid?

Kurtain: Yeah, no – oh yes, yeah, no legal aid here.

Parts of the confession may also point to contamination. Kurtain continually referred to ‘drag lines’ or ‘marks’ at the scene of the crime, which police maintain was evidence of where he had dragged Linda on 31 August. At no time did the police mention the ‘drag lines’ on tape, which may suggest that this information was put to Kurtain when the tape was turned off.

The tape was turned off and back on again three times during the interview and after each time Kurtain changed his answers.

One of the key indicators of a false confession in Kurtain’s case is described by Patrick McGuinness: the physical evidence simply did not fit his confession. Because Linda’s body was found in the river, the police alleged that she was placed in the water on the Toonooba House side, the same side as Rockhampton’s CBD. But her body was found two kilometres downstream, on the opposite side of the river. Given that Kurtain had no way of getting to the other side of the river that night, the prosecution would later build a case on the idea of him dragging her to a patch of grass near the riverbank where he allegedly raped her, then dragging her down the steep bank into the mud at low tide.

In his confession, Kurtain claimed he had ‘sex’ with Linda. But the details were confused, and he continually backtracked. One of the key parts of the confession where this occurred was when police questioned him about blood. At first, Kurtain claimed there was blood ‘pouring on the ground’, but this did not fit with the evidence at the crime scene: only three large blood patches were found, and these were at the site of the assault, not where Kurtain was alleged to have taken Linda. Kurtain then changed his story to claim the blood had dried, or that there was no blood – and this did not fit with the injuries to Linda’s body described by the forensic pathologist.

‘When Kevin speaks of blood, when he speaks of the injuries, when he speaks of Linda, he is clearly referring to what he saw whilst Linda was being assaulted,’ Hodgson says.

But the inference in the confession, and the way the questions are asked, leaves those reading the confession to believe that it is what Kevin saw when he was alone. He mentions the stairs, mentions the trauma to Linda’s face and head. We know that Kevin’s statement only matches the forensic analysis if he is talking about the assault [on Linda by] the women. He certainly saw the beginning of the assault – most of the assault and the aftermath, and so he gives a very clear recollection of the things we know took place. But he is very fuzzy about the things we cannot confirm.

There was no blood on Kurtain’s clothes, and no traces of Linda’s hair on him. He also had no mud on his clothes, despite the bottom of the river – which police alleged he would have trudged through – being like glue. This was pointed out by the trial judge in his instructions to the jury:

You keep in mind the basic allegation is of dumping the body in the river below where those reeds were trampled down and you need to keep in mind the tide times, as I have indicated to you, and the amount of mud down there, the fact that Henry was not found with mud on his clothes. [my emphasis]

But the most damning indictment on the confession is that the placement of Linda’s body on the southside of the river does not match the tidal records of that night. Not only was there no large influx of water to push her across the wide expanse of the Fitzroy, but when she was found, the police recorded a 150-metre-long line in the mud, stopping just at her feet and horizontal to the bank. This acted as a crude map of her last movements. Hodgson has since uncovered three witness statements – all from people who do not know one another – pointing to two other alleged perpetrators that night: two men who had a stolen car, and who placed Linda’s body on the opposite side of the river. This version of events fits with the tidal records.

The next day, a burnt out, abandoned car was discovered on the southside bank of the river. The police never investigated it. They also failed to follow up other potential suspects, including a man who came forward to confess to the crime. Simply speaking, once they extracted the confession from Kurtain, they closed all other avenues of investigation.

 

THE SECOND CONFESSION was the only piece of evidence police had against him, and yet Kurtain never admitted to placing Linda’s body in the river. He tried to wind up the interview by saying, ‘See that’s it man, I just told you everything, that’s all the evidence, I got nothing to say no more now. You can’t ask me anymore because I got nothing to say.’ But the police continued questioning. The judge at trial threw out the rest of the confession – about 80 per cent of it – stating it had not been obtained ‘voluntarily’.

It is in the first confession, taken in the watch house on the day Linda was found, that Kurtain is alleged to have said he ‘threw her in’. Kurtain had been picked up off the street and thrown in the watch house for ‘public drunkenness’. It was in the watch house that Kurtain alleged a gun was put to his head to force his confession. Kurtain was let go the next day after giving his initial witness statement about the assault to police. But rather than citing the tidal records, or the lack of forensic evidence, or the second confession to police, it was this first confession on which Kurtain’s defence lawyer based his appeal in 1993, claiming that it should never have been admitted as evidence based on the Privacy Act. He also claimed that the recording was poor quality, and it was hard to distinguish what was said. The appeal judge knocked this back, saying that while it was not a clear recording, it was up to the jury to determine whether the ‘critical words’ could be heard.

It is impossible to know how much weight the jury gave to either confession in making their decision to convict Kurtain. But there was no other evidence on which they could base that decision. New forensic analysis was completed by international experts in the UK determining that the original cause of death – drowning – was too simplistic, so it is possible Linda may have died as a result of her injuries before she was placed in the river. In addition, Hodgson and I have discovered there was very limited time for Kurtain to have committed the crime – and that he had an alibi. Several witness statements point to him being with the group from Toonooba, walking together to the pub.

But there was another complicating factor for Kurtain: he was given a joint trial with the three other women. This meant the majority of the trial concentrated on the details of the assault in which Kurtain played no part, other than being an eyewitness to it. But it also meant that the jury heard information that would not have been introduced if Kurtain had been granted a standalone trial. This included the witness statement of the woman involved in the assault who claimed Kurtain may have placed Linda in the river. This matter was also raised by the trial judge in his summary:

There are parts of the evidence which you must be very careful to use only in respect of the accused person to whom they directly relate. For example, [one woman] was interviewed and you have heard a long interview with her. In the course of that, she says a number of things about the accused Henry. What she says there is relevant to her but you must disregard it in Henry’s case.

It is very likely that Kurtain would have been acquitted if he had been given his own trial.

 

KURTAIN’S SITUATION IS made difficult not only because Australians seem to take these cases on an individual basis, but also because Kurtain is an Aboriginal witness accustomed to being disbelieved. Not only that – he is an Aboriginal witness who has been silenced by prison walls since 1991. But his story has remained consistent from 1991 to the present. His testimony is backed by the facts of the case.

Given the high rates of Indigenous incarceration in Australia, and the fact many Aboriginal people are encouraged to plead guilty due to inadequate legal representation, it is likely that large numbers of Aboriginal people have served sentences while innocent. Despite this, wrongful convictions are largely missing from our conversations about justice and reducing black prison numbers.

Kurtain’s case tells us a little bit about how the justice system can operate for Aboriginal people. He not only faces an uphill battle because he was found guilty at trial, but also because, just by the colour of his skin, he was presumed guilty in the watch house, the interrogation room and the courtroom. His ‘confession’ was interpreted through the eyes of the police, the jury and even his own defence, who used a shaky foundation for appeal and exhausted further avenues. Now, Kurtain’s hope may lie in his telling of his own story, in his willingness to again raise his head in an airlock – like he did with my dad – and speak his own truth. He just has to get his chance.

This essay was edited with the assistance of Allanah Hunt, Jasmin McGaughey and Grace Lucas-Pennington as part of State Library of Queensland black&write!
editorial internship program.

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