With every step towards justice, the families of three Aboriginal children murdered in Bowraville have had to endure further disappointment. It’s time for MPs to make good on the tears they once shed, writes Amy McQuire.
Two years ago, I watched in awe as NSW Parliament House opened its doors to the people who traditionally protest outside its gates. The relatives of three Aboriginal children – Colleen Walker-Craig, 16, Evelyn Greenup, 4, and Clinton Speedy-Duroux, 16, all murdered within months of each other in 1990-1991 on the small mission in Bowraville – had in November 2014, come together to fill the public gallery of the state’s upper house.
Because of bungles in the original police investigation, largely the result of racist assumptions about Aboriginal victims and families, and a lack of expertise in homicide investigations (the original investigation was staffed by officers from the child mistreatment unit), combined with a devastating media apathy and problems with the judicial process, the only man ever accused of these crimes has never been convicted.
More than two decades have passed, but this collective trauma has grown to such a mass that it warps time. For many family members, it feels as if their children went missing only yesterday. They speak as if their children are still with them because, in many ways, they are. Colleen’s mother Aunty Muriel Walker-Craig, says her daughter, whose body has never been found, is always around her, guiding her.
Meanwhile, the accused killer has escaped this perpetual cycle of mourning and is living in Newcastle, under a new name and with a new family. Because of faults in the criminal justice system, he has never been convicted – even though the evidence linking him to the crimes has put him squarely in the sights of NSW Police following a second investigation headed by Detective Inspector Gary Jubelin.
This day in parliament seemed different from the past. It was a significant occasion. The parliamentary inquiry into the family response to the murders was being handed down. The families had travelled from as far as Tenterfield and Brisbane, and were greeted with a vastly different reception from previous years. Rather than the imposing gates of parliament, the upper house was open and accommodating. There was a morning tea organised in the rooms of the historic building.
It was ironic because, only a year before, the families had been protesting outside the front of that same building. It had been the culmination of a deep frustration emanating from the latest setback: the then NSW Attorney-General Greg Smith, a former prosecutor, had knocked back an application on behalf of the families, compiled by legal firm Allens, which included evidence the families argued was “fresh and compelling” to get the accused back before the court of criminal appeal.
Smith’s explanation was that the application was unlikely to result in a conviction and he didn’t want to close the families’ legal avenues in case a confession or new evidence were to arise. He also had reservations about the word ‘adduced’ in the double jeopardy legislation, which is currently untested in NSW courts.
To the legal fraternity it seemed a ‘reasonable’ decision. But to the families, so accustomed to knockback after knockback, so used to paternalistic assumptions of what they ‘need’, it was just another insult.
All the families have ever wanted was a chance to get the accused back to court, to combine the three murders in one trial (which had never previously occurred). They felt they could not wait any longer for justice, as their elders slowly began passing away and the prospects of getting the accused back before court dimmed with every passing year.
If his decision wasn’t insulting enough, Greg Smith then compounded the hurt when he called Clinton Speedy-Duroux’s father Thomas by the accused’s name in a meeting, and said he believed that if it was him, he would be able to move on. He also recommended grief counselling. He never realised that a privileged white politician does not hold the same place in Australian society as an Aboriginal man mourning the loss of his murdered son on a mission.
“I was just going to get up and walk away then… because the only thing we really want is justice – not grief counselling or something like that,” Clinton’s father Thomas later said.
But this did not weaken the tenacity of the families, who shut down Macquarie St and protested for justice, in a heated and emotional rally that ended in optimism and a parliamentary inquiry.
The inquiry, pushed for by Greens MLC David Shoebridge, opened a small window of opportunity after for the families after Smith shut the door in their faces.
The families have always maintained that the state’s politicians must visit Bowraville, must sit down and talk to them, to realise the extent of their hurt. This was the opportunity the inquiry presented. For so long they have been completely ignored, both by mainstream media and by politicians, who have never visited Bowraville.
I attended the first public hearing of the inquiry in Macksville. On the first day, the committee members – from all sides of politics and headed by the high profile member of the Liberal’s religious right, David Clark – wore the stern, emotionless expressions of impartiality.
But on tabling the report, the committee members were noticeably different. This was acknowledged by Nationals MLC Sarah Mitchell, who broke down in Parliament on handing down the report. She told the Parliament that she was embarrassed to admit she did not know much about the Bowraville case before sitting on the inquiry.
“On the first day of our first visit to Bowraville and our first meeting with the families, later, whilst driving home, I became very emotional and started sobbing. I cried for Colleen, Evelyn and Clinton, and for all their families and friends because in this case there seemed to be no justice,” Mitchell said.
“Detective Inspector [Gary] Jubelin had made it very clear to us that the police knew who was responsible for the murders of those children and that that person had not been convicted of the crimes. It became clear to me at that point that this inquiry was extremely important. We needed to ensure that as a committee we gave the families every opportunity to have their say and that our report must reflect the wishes of these families, who had been through so much and deserved to be listened to.”
Clark also shed tears as he joined his unlikely political ally, David Shoebridge, in pushing for justice.
“We pay our respects to the memory of these three children murdered 23 years ago, to their families, to the Bowraville Aboriginal community and to the wider Aboriginal community. We pay our respects also to those who have stood with them and supported them through the years. Finally, our committee now does what it does in its report. It formally acknowledges the pain and suffering experienced by the families of the three children over the past 23 years; pain and suffering that have been significantly and unnecessarily contributed to by the failings identified in this report. We now ask that justice be done,” Mr Clarke told the committee.
The report delivered a number of recommendations but two in particular were important because they aimed to clear the artificial legal barrier that had held up the legal application at both Smith’s office and that of the previous Attorney-General John Hatzistergos.
The recommendations aimed to clarify the legal definition of the term ‘adduced’ in the double jeopardy legislation, which was amended in 2006 with the Bowraville families in mind. They had campaigned for the change after the accused was acquitted over the murder of Evelyn Greenup (he had also been previously acquitted over Clinton’s murder). This was significant because the terms of reference had been deliberately narrow. However, after meeting with the families, the inquiry had concluded that what the families needed above anything else was justice.
Following the tabling of the report, the politicians joined the family members at the morning tea. Despite the pain of the occasion, there was an undeniable sense of optimism. There was a comradery amongst all sides of politics in that room, and not just from the upper house.
Two members of the lower house, then Aboriginal Affairs Minister Victor Dominello and former ALP MLA Linda Burney, the first and only Aboriginal member of parliament in the state, both made heart-rending speeches calling for justice. There was, at this point, hope that the NSW government would act, given the reception in the upper house, and the presence of Dominello and Burney. But maybe that was too much to hope for. Last week, the families were again forced to travel from near and far to meet outside the gates of NSW Parliament.
The last time they were there, they were guests. Now they were inconvenient reminders of how meaningless political promises are, even when they are accompanied by tears (although I must make a note that both David Shoebridge and David Clark, joined the families in the march from Hyde Park to Parliament House). While Christian Democrat Fred Nile and Shoebridge spoke on behalf of the families, there were many political voices noticeably missing.
The families had waited a half a year for any response from the Baird government about the recommendations of the inquiry.
The silence was so deafening that Shoebridge released a draft bill attempting to clarify the word ‘adduced’ for submissions, in order to legislate instead as the Attorney-General Gabrielle Upton dragged her feet. All but one submission, by Jumbunna Indigenous House of Learning at UTS, were in opposition to the draft amendments.
Despite this, Shoebridge, pushed ahead. And the pressure worked. Two days before he introduced the bill to the upper house, Upton finally responded, and announced a review into the inquiry recommendations by Justice James Wood. Unfortunately, the Bowraville families would again be forced to wait until November for an outcome.
Despite that, there was optimism and a feeling that a couple of months of waiting was nothing given how long the fight had continued.
But when November approached, they were once more left bitterly disappointed. They were first informed a long awaited meeting delivering the Justice Wood recommendations was cancelled, and by an even more insulting medium: a text message from the Attorney-General’s office, delivered only a few days before the meeting.
This may seem small to an outsider, but to the families it was just another sign of the disrespect that has continued over two decades. It is built on a compounding list of disrespectful acts, including occasions on which the media has received vitally important news before them. Can you imagine white families being treated this way?
But this wasn’t the end. Just before Christmas, Gabrielle Upton’s office informed the Bowraville families of the sad outcome of Justice Wood’s report. He had recommended against legislative changes to the word ‘adduced’, and the NSW government would be accepting those recommendations.
The news, just before Christmas and buried in the holiday rush, was devastating.
To make matters worse, in early December Clinton Speedy-Duroux’s cousin Trevor Duroux was killed by a coward punch on the Gold Coast. Outside of the local media, there was no coverage. Meanwhile, within the same month, a white teenager in Brisbane died in a similar situation. His death made news across the state, sparking a heated debate over toughening penalties on coward punch assaults. Trevor Duroux’s case, and the case of his cousin Clinton and the other two Bowraville children, Colleen and Evelyn, were again buried in the news cycle, as has happened to so many other black victims of crime.
It is important to recognise this because we have seen time and time again that governments around the country do not hesitate in weakening civil liberties when the victims are white, even if they have harsh consequences for the most vulnerable sections of society – more often than not, Aboriginal people.
I say this because, last week, after the protest, I sat amongst the Bowraville families in the upper house after they staged another rally outside the front of Parliament. It followed Gabrielle Upton’s Christmas decision.
This time, I didn’t sit in awe. It was pure shock.
This same chamber, which two years ago had united in tears and had promised to deliver justice to these families, was again characteristically emotionless, as both Labor and Liberal MPs delivered their dry reasons about why they would not be supporting David Shoebridge’s bill to clarify the legal barrier getting the accused back to the Court of Criminal Appeal.
The legal fraternity, the Baird government, and the NSW ALP are tip toeing around the double jeopardy principle, while the Bowraville families continue to cry for justice. Meanwhile, in the same state they are happy to weaken civil liberties when it affects white victims or promotes their own interest.
NSW Minister for Ageing John Ajaka told the upper house “the government understands that the families want justice for the victims, these three children… however, the 2006 amendments altered the long established law of double jeopardy and finality and also inserted strong safeguards so that the interests of justice and the rights of an accused were finely balanced.”
He said the government would not be supporting Shoebridge’s bill because it was not consistent with the Justice Wood review.
Leader of the NSW Opposition Adam Searle acknowledged that the original police investigation was “bungled, incompetent, and in my view, racist”. But he said that the DPP, the Law Society of NSW, the NSW Bar Association, and Legal Aid NSW had all raised concerns that clarifying ‘adduced’ in the double jeopardy amendments could lead to “unintended increases in applications for retrials because it would have a broader impact”.
That was knocked down by Greens MLC Jeremy Buckingham, who in a passionate speech to the upper house said he did not accept that argument there would be a flood of cases.
“This bill applies to the most heinous of crimes – murder and serious sexual offences,” he said. “So what if we err on the side of the victims? Some people may be brought back to court to face a retrial and they may be acquitted again, but we should err on the side of the victims in this matter.”
Greens MLC David Shoebridge broke down as he apologised to the families in the chamber for not bringing justice again. He said that the government has no problem passing laws at the expense of Aboriginal communities.
“Time after time this Government has passed laws that in their application will almost certainly act adversely against the Aboriginal community. We will see more Aboriginal people in jail and more Aboriginals brought to the courts as subjects of the criminal law,” he told the chamber.
“On this one occasion, when the Aboriginal community has come to the Government and said, ‘We would like a little bit of tightening of the criminal law to deliver justice for the murder of our kids’, it slams the door on them. The reason for not doing so is given as some belated respect for those civil liberties that have been trashed repeatedly for five years.
“How would members feel as a member of the Aboriginal community if the one occasion on which they want the criminal law changed to deliver justice is the one occasion when the civil liberties argument is raised by the Government to say no?
“I do not agree that this change will have a significant or real impact on civil liberties. This change will still be governed by the interests of justice test, by an appeal before the Court of Criminal Appeal and by the fundamental rules of evidence. We are talking about a marginal change to a law that has fundamentally failed. In 2006 this Parliament passed double jeopardy laws and those sitting in the gallery the Bowraville community are the principal reason it was raised at that time.
“We put these double jeopardy laws through in 2006 to give these families a shot at justice. They are still sitting in the gallery and the laws have failed them. We want the laws fixed.”
After Shoebridge spoke last week, the upper house split to vote, with the Liberals and the ALP, some of whom had spoken so eloquently in support of justice for Bowraville two years ago, bowing their heads as they sat in silent ‘no’.
The Greens and other crossbenchers sat in silent protest on the ‘ayes’.
After the bill to clarify this artificial legal barrier was voted down, the families in the public gallery sadly declared ‘shame’. Rather than anger, there was a wariness built on the back of the past two decades.
I can’t describe the feeling – this heavy weight of disappointment chaining down the families in the public gallery. To understand it, you have to realise that every time the families have made a breakthrough in the past 26 years they’ve had that small victory tainted in some way. Whether it is the trials of Clinton and Evelyn, the continual knockbacks by both the DPP and the past three Attorneys General, to the current day. The indignities that have built around them – from being told their children had gone walkabout, from being accused of hurting their own kids, from learning via the media of vital developments in their case, from having a meeting with the Attorney General delayed by text message. They are acts that would never happen to white victims of crime. They have continually been let down by a criminal justice system that has failed them at every turn, by a mainstream media that has compounded the trauma in its silence, by politicians who get away with shallow tears and broken promises (except for some notable exceptions) and now, by a legal fraternity that supports a dry legal principle – and not true justice.
The Baird government has announced it will send a new application by NSW Police to an independent assessor. The Police, led by Gary Jubelin, who headed the second investigation, have been important supporters of the families. It’s a bitter development though. “Mike to the mike” the families cried out last week at the gates of parliament– they wanted Mike Baird to personally deliver his government’s reasoning.
Of course, he never came out.
Let us hope that this small victory is not overshadowed yet again. Let us remember Bowraville and hope that the politicians, who stood up so forcibly two years ago, do too.