Just before nine o'clock last night, the jury returned guilty verdicts against all three defendants. It was absolute shambles, to tell you the truth, just absolutely really coming.
Blood on his clothing. The day after the alleged.
Atap on a show a mud bank and it fits through a river.
Basically, I think most of the people are used to me are good people.
I think a really important question we need to ask is how many Indigenous prisoners in Australia are innocent.
This is Curtain, a podcast where we pull back the blinds to shine a light on the darkest parts of our justice system and ask who are the victims. I'm Amy Maguire and I'm.
Martin Hodgson, a senior advocate for the Foreign Prisoner Support Service. And a warning. This series contains the names of deceased peoples and has distressing content that might upset some listeners.
What went wrong and how can we fix it? When there's a total system failure? And that's what the conviction of an innocent is a total system failure. What we do is use DNA testing to get people out of jail who did not commit the crimes. It really began for us in a case nineteen eighty seven eighty eight involving an inmate named Marion Cochley who was wrongfully convicted of a robbery rape in the Bronx. And in that case we tried to use DNA testing, and this was
before DNA testing was even in the courts. It was nineteen eighty eight, and there was not enough high molecular weight DNA to get a result. But we realized from that moment that this could be a transformative technology and it would be able to exonerate a lot of innocent people, would be able to apprehend the real perpetrators, and it also would shine a window on what we believed were
lots of wrongful convictions. My colleague Peter Neufeld and I we actually knew from the very beginning that there were many, many more wrongfully convicted people than anybody lived, and the DNA can demonstrated. We knew that, but obviously when you live through it and you start seeing this one after another, ah, it's quite extraordinary.
Welcome to episode twenty four of Curtin the podcast that was Barry Shack from the Innocence Project. He has more than forty years experience in addressing wrongful convictions. In fact, he's overturned more wrongful convictions than any other lawyer on earth. He studied at both Yale and UC Berkeley's School of Law, so to say that he is qualified in this area is an understatement. Last week we spoke about how a
jury found Kevin Henry guilty beyond a reasonable doubt. Clearly, with all the evidence you've heard, we feel, and from the feedback we've heard from all of you, is that it's very difficult to understand how Kevin Henry could possibly have been found guilty. So, as mister Sheck says, something
must have gone wrong. And this week we're going to highlight how it's possible for someone to be found guilty beyond a reasonable doubt even when it's quite clear from all the evidence that they didn't commit the crime.
In this episode, we're going to go back to the court transcripts. Now we're going to outline three cases of failure in the justice system that led to the ultimate system failure, the conviction of an innocent Aboriginal man who stayed locked up in jail for over a quarter of a century. Martin. What's the first of those failures?
Okay, so one of the failures that I think really occurred in this trial was that of the forensic evidence that was presented. Now, previously we've gone over the issues of blood, the way the blood was examined, the body was examined, issues to do with the way forensic evidence was collected. But as we've spoken about throughout this podcast, very clearly, the tides in the river played a crucial factor, and present at the trial and giving evidence was a
gentleman called as an expert in this area. So to address this and in summarizing just how important tides were to the case, particularly the murder charge, the judge included this statement in his summation. Clearly in relation to the charge of murder, the critical issue that is raised by mister Murray on Kevin Henry's behalf is the contention that it was not Henry who threw her into the river. And it seemed to me tides are relevant to this,
and I would remind you of them. Now. The judge would go on to explain quite a bit of detail as to what was presented about the tides and why they were so critical, But rather than read all of that, I'll quickly remind you remember, as we explained that, as everyone agrees, if Linda's body was placed into the river at the time Kevin Henry is alleged to have done it, he would have had to do so by walking through deep mud that came up to at least his knees,
perhaps higher, and he would have had to have gotten wet. And nowhere was any mud or any water stains found on his shoes or any clothes that he was wearing, and there was no evidence he ever went into the river. The tides also impact on where the body was found, and the tides, as we've discussed in previous episodes, also help us show that not only did Kevin not place Linda's body in the river, but that the body was played on the racecourse side of the river, not the
Tanuba House side of the river. And again, as I discussed, a witness was called to deal with this very issue. You would assume that a witness called on this issue, and this issue of tides alone, a witness who was local to Rockhampton and working for the Queensland Government in a capacity that placed them on the river daily would understand the tides of the river very well. But this
witness didn't, and this was an expert witness. In attempting to explain the tides of the day the September on the night of Linda's murder, the witness kept referring to the thirty first of August, the Friday, and the judge was forced to bring them back to the first of September, the crucial day, the day it matters. And then this expert detailed the tide times, and it was the judge no one else who picked up something was wrong. And this is what his honor said. You have got them
reversed for each day. You see, the high tide on the thirty first was at one thirty PM. That's the first high tide answer, that's right. Then there is a low tide at eight thirty seven PM, and a high tide at one forty one PM, and the first and a low tide at eight point fifty am on the first answer. That's correct. Now, the exact details of all the tides and times I just mentioned is not important.
What's important is the judge was forced to clarify that, in fact, this expert witness was getting the high tides and the low tides around the wrong way, and he was getting AM and PM around the wrong way. Later in this expert's testimony, which went on for a considerable period of time, the expert was asked to identify on a photo where the tide would have been when the police accused Kevin Henry of placing Linda's body in the water.
And the reason the court needed to know this, and the reason we all need to know this is so we could tell how far through the mud Kevin would have to walk. But the expert witness couldn't do it. This is what happened when the witness was asked about these figures after repeat failures. These are figures that relate to high and low tide. Question, are you familiar with the title heights at that time? Answer by the expert not as far as figures go. I can't give you
a tide figure. No, that is the answer from an expert witness. Their entire job for this trial was precisely, if nothing else but to give that figure. And all they would have needed was a tide chart. Now I have one in front of me right now, and I will read to you what the tide is right now in Rockhampton. The tide is two point one meters and
the tide is falling now. Of course I've read this from a title chart taken from the Internet, but tide charts taken the exact same way using the same equipment were available at the time at almost any fishing store, and certainly available to this expert witness who did this for a job. In fact, a brief study of tides shows that the Egyptians knew the height of tides three hundred and fifty six years before or the birth of Christ. We are not asking for new technology to have been used.
This is information that is available to all and has been for centuries. Now. There's one more point that needs to be raised, as the judge tried to clarify the issue of tides and why he was so insistent when he was explaining to the jury they needed to remember what had been said, is that the expert also admitted he was not using the tides from Rockhampton. They took the tide times and the tide heights that they got wrong, but nonetheless used the tide times and tide heights from
another location about thirty minutes drive from Rockhampton. But tides change depending on location, and so I'll tell you what those tides are, right Now as I record this, the tide in Rockhampton is two meters and falling. It has two and a half hours until the low tide. At the location that the expert witness used for the tides for this case that occurred in Rockhampton, the tide is currently one point six meters and rising. They are not the same. One is rising, one is falling, and their
heights are different. The water is moving in two different directions based on the locations, and the height of the tide is different. This expert testimony is not expert at all. Despite the fact the judge was so insistent that tide times and tide heights were so important in this case, and as you know from listening to this podcast, tides were crucial. They would have proven that Kevin Henry could not possibly have placed the body of Linda in the water.
That seems like a huge oversight. Did the prosecution or defense pick that up, Martin.
Unfortunately they didn't, And the judge actually talked about this not only during the trial itself, but during his summation, and he said he believed counsel would have considered it more in cross examination. So the judge himself was quite confused as to a how there was this expert getting issues such as AM and PM wrong, low and high tides wrong. The judge was also confused as to why was this not raised by the lawyers involved, particularly the
lawyers representing Kevin Henry. Again, this was a complete failure, Mardin.
We promised Elliston as three examples of system failure. What is the second one?
Okay? So the second failure has to do again with forensic evidence, but more importantly a failure on the defense's behalf, those representing Kevin Henry. The defense ran an argument that Linda may have been intoxicated that night. Now, it was known to all, or should have been known to all, that Linda was not intoxicated at all. Her blood alcohol was zero. The only things she had in her system were traces of the medication she was using to treat her illness. She had no drugs in her system and
no alcohol in her system. Now, why it was assumed that Linda was drunk can be summed up in two ways. Either a failure on behalf of all involved to read the forensic report that clearly stated Linda had zero alcohol in her system, or it was assumed that Linda, like many of the people, in fact, everyone else at Tanuba House that night had been drinking. She had not. An assumption of this kind is simply unacceptable in all matters.
But when Linda had lost her life, the assumption that she was drunk like everyone else is a disgusting association to make with Aboriginal people and Aboriginal women that they would have to be drunk no matter what, And it's
a complete disregard for Linda's rights as the victim. But the way it impacted on Kevin Henry's trial was that the defense ran the argument that much of the forensic evidence could have been wrong if Linda was intoxicated, and the pathologist agreed with this issue, And the pathologist went on for a number of pages in the transcript, So we're talking at least ten minutes with a whole bunch of scenarios of what could have happened that night if
Linda had been drunk. At no point at that part of the trial did anyone intervene, knowing full well Linda had zero blood alcohol, to say that it was not the case. Now, it was clarified later on when the prosecutor realized the mistake and it was in fact the prosecutor's error. In the first place, he had the certificate that showed Linda had zero intoxication, and he should have presented it as evidence before the court, and he was scolded by the judge for not doing so. But all
involved should have been aware. Now much of the evidence that the pathologist gave about Linda potentially being intoxicated would have helped Kevin Henry, and the defense had managed to get that on record. Even though they got it on record in error, they did get it on record and it did assist Kevin Henry. And so when the prosecutor asked to place the evidence that Linda was not intoxicated on the record, the judge did not wish to grant
that because it was the prosecution's mistake. Beneficial evidence had been provided on Kevin Henry's behalf, and yet the prosecution insisted that they would recall this witness and have another go at getting in this information about Linda's intoxication. The lawyer for Amy Saunders objected, and the judge agreed that
the prosecutor was at fault. It is the Crown the prosecutor's job to prove beyond a reasonable doubt that Kevin Henry committed this crime and the prosecutor had made an error and Kevin Henry shouldn't have to suffer for it. But when the judge asked the defense attorney, mister Murray, Kevin Henry's barrister, if he objected to this new evidence, mister Murray said no, he did not object, and he allowed this witness to be called back to the stand
to clarify the error. And because that was done, that had tried to dismiss the idea of Kevin Henry being involved based on that particular pathological evidence was ruined because all he'd done was based the assumption that Linda had been drunk. There was clearly other avenues he could have gone down. He didn't because of an assumption or because of a lazy error. So remember, Kevin Henry had evidence presented on his behalf that helped him, and that was
the judge who agreed this. The prosecutor admitted he made a mistake, but Kevin Henry's own lawyer allowed that mistake to be corrected that should have never taken place.
One of the problems I have with this point is that what would have ultimately helped Kevin was based on an error of the prosecution, which was based on a fundamental untruth about Linda the victim. How does this work, because surely it speaks to the real complexity in the justice system that this sort of untruth about an Aboriginal woman could have ultimately helped Kevin Henry in the end.
Yeah, it's a very good point. I think there's two ways of answering that. First is that it's the crown's obligation, that being the prosecutor, to prove beyond a reasonable doubt that Kevin Henry was guilty. So if that prosecutor makes an error that provides doubt, then that doubt is to go in mister Henry's favor. But you raise a very good point, which is that that doubt was raised on an untruth. Now it still should have been left to stand,
but it wasn't. So let's deal with the untruth and the issue with that and why it still impacts mister Henry. Mister Henry's evidence did not require Linda to have been intoxicated, so the correct forensic evidence could have been presented to the pathologist about why it was not possible for mister Henry to have committed this crime, even if Linda was
accurately described as not intoxicated. But because not only the prosecutor, but the defense had both assumed that Linda was in fact intoxicated at this time, all arguments presented for mister Henry were simply inaccurate because again they were based on
this falsehood. So the assumption or the error, which one, it doesn't really matter that Linda was intoxicated when she wasn't A harms Linda's reputation and she is the victim here and that he's completely unacceptable and B meant the defense went down the wrong path, a path that would be corrected when had they done their homework, they could have easily presented forensic evidence that would have shown Kevin could not have committed this crime even if Linda wasn't intoxicated,
and she wasn't. So that's why this misstruth, this assumption, this racist suggestion about Linda harmed both Kevin Henry and harmed Linda Mardin.
We've already heard two the systems failures, one regarding the title levels and the experts and the other regarding Linda's intoxication levels. What was the third failure.
Okay, the third is perhaps the most important. We have to remember that Kevin Henry was on trial with the two of the women who would later be found guilty of grievous bodily harm. That's Amy Saunders and Susan Aubrey. They committed the vicious assault against Linda, to which there was a bunch of forensic evidence, witnesses, their own admission,
there was simply no doubt that this occurred. But in Kevin Henry's case, there was no forensic evidence pointing to him, there was no eyewitnesses, and so throughout the trial the judge raised great concern that Kevin was being tried alongside the women, and that perhaps his lawyers should consider separating out the trial so that the two women stood trial
together and Kevin Henry stood trial on his own. Now, at each point this was offered up, those representing Kevin said no, they wished it to continue as it was. But at one point, quite late in the trial, with only one or two witnesses left to be called, the
judge was clearly concerned. And that's because a statement given by Susan Aubrey was accepted by the prosecution and the defense during the trial to be inaccurate, to be inadmissible and unlawful because of the way that it was taken and because of the lies that were told in it. The judge at this point instructed the jury that what they'd heard her say, those lies about Kevin Henry, could not be used against Kevin Henry, and that they must
dismiss them. But of course, as we all know, once you've heard something, even if you're now told it's a lie, it could be hard to dismiss. You can't simply forget it and pretend you've never heard it. And so the judge once again had the jury leave the courtroom and asked Kevin Henry's solicitor and barrister whether they wished for
a separate trial. Kevin henry solicitor and barrister left the court to speak with Kevin Henry, and I will read from the transcript what happened when they returned, your honor. I apologize for being longer than I anticipated. We notoriously tend to underestimate time. So this is mister Murray talking about the length of time it took him to speak to mister Henry and explain what the judge was recommending.
So mister Murray continues, I understand your honor's remarks to be directed towards the material that the jury heard yesterday in relation to the first record of interview of Susan Albury. So there he's saying about what the judge said to the jury about ignoring what Susan Aubrey had said in
that first interview. But mister Murray went on and continued, after reviewing the trial thus far and the material that's gone before the jury, the decision has been taken by my client after discussion with my instructing solicitor and I, that he would not seek your Honor's discretion to separate the charges on the indictment, to seek that this trial be aborted, and he will continue on charge on the indictment with the two others accused. I thank your Honor
for your consideration. So to explain that briefly, mister Murray has come back having spoken with the solicitor for Kevin Henry, and Kevin Henry put it to Kevin that he could have the trial that has currently gone on be aborted and a new trial started afresh without any of the evidence that had been prejudicial against mister Henry, that should not have been allowed in that had slipped through. Primarily that relates to Susan Aubrey's statement, but it also related
to some of the forensic material. And yet we are told that Kevin Henry did not wish to have the trial aborted and that he wanted to continue. There is only a few things that could have happened. A Kevin Henry understood exactly the legal arguments that were being put to him. B Kevin Henry did not understand the legal arguments that were being put to him and what was going on or c They were not correctly explained to him.
Understanding that Kevin Henry, at the time and to this day is illiterate, had no training whatsoever in the legal system. And here we are dealing with a highly complex matter that the lawyers seemed to not understand so much that the judge was having to instruct them to go off
and think about it. This wasn't a one off. The judge had offered this up multiple times until the judge became so concerned he instructed the solicitor and the barrister to take this to get Kevin Henry, and I would put it to you that the system failure here is that mister Henry did not understand what was going on, that it was not properly explained to him that this trial could be aborted and that he could have a fresh trial where he would be the only accused in
the dock, and none of the evidence that had been heard by the jury that was now dismissed would be presented. It would be a fresh slate without any of that confusion allowed to continue. But in the clear confusion that must have gone on, perhaps some even suggested to mister Henry, remember remembering he was in prison all this time, that he would spend more time on remand and more time in custody if he was to have a fresh trial,
and maybe he should just let this continue. And if that's the case, if Kevin Henry didn't want to spend more time I'm in prison to see a new trial come about, having already waited six months, and if it had not been properly explained to him that this trial could be aborted and that it would be favorable for a new trial to commence, this was a total system failure.
Mister Henry was not able to give proper instructions because he didn't have the capacity to do so, just as he was denied that capacity in the first and second interviews he gave police where he himself asked for legal
representation and assistance. This is perhaps the worst of the system failures and clearly catastrophic that Kevin Henry's illiteracy, Kevin Henry's aboriginality, where Kevin came from and who he was was the reason why a trial the judge clearly felt was unfair and had presented evidence that should not have been heard by a jury, was allowed to continue. This was not Kevin Henry's fault. This catastrophic system failure should have been rectified by those who were representing him, and.
It wasn't so.
At the getting of this episode, you heard from Barrysheck, who was the founder of the Innocence Project over in America. But the Innocence Project focuses on exonerations where there's DNA evidence. In Kevin's case, there was no DNA evidence. So what happens in cases of wrongful conviction where there's no DNA Here's what Barry Sheck said.
Only five percent of cases have any biological evidence where you can do a DNA test and determine identity or guilt or innocence. So what about the other ninety five percent of the cases where you have what we know
to be the causes of wrongful convictions. Eyewitness misidentify, vction, false confessions, unreliable or fraudulent forensic science, police reproscatorial misconduct, defense learners that don't do the job, joehaus snitches, and of course, the most intractable problem that of racial bias.
As Barry Sheck just explained, only five percent of cases involve DNA that can be tested and used in a way by a place like the Innocence Project to prove someone's guilt or innocence. Kevin Henry's case falls in the other ninety five percent. And in these ninety five percent of cases, mister Sheck's experience of more than forty years and that of his global organization tell them there are a number of key factors that lead to wrongful conviction. So let's quickly run through them and see if any
of those factors relate to the case of Kevin Henry. First, eyewitness misidentification, Well, there was no eyewitness that ever pointed to Kevin Henry being anywhere near the body of Linda nor putting her body in the river. So there simply is no eyewitness misidentification, although there are people who clearly lied about where Kevin Henry was at that time. Issue number two, false confessions. Well, I think those of you who have listened to this podcast from the beginning will
know that quite clearly Kevin Henry's case involved a false confession. Firstly, Kevin Henry has always maintained his innocence. The only time he may have strayed from that is during a police interview at the very beginning when he was first arrested. That's the interview where he repeatedly asked for legal assistance, where he on many times tried to end the interview
where he was pressured by police. Remember that false confession was so troublesome it went for many hours, and yet the judge threw out the vast bulk of that confession because he said it was inadmissible and was taken unlawfully. Another factor, unreliable forensic science. Well, today you've just heard
about the forensic science of tides and tidal movement. But you heard the expert who was called to speak on this issue was getting simple facts like AM and PM and high tide and low tide around the wrong way. I would say that's fairly unreliable forensic scientific evidence. And remember there was no forensic evidence such as blood, hair, skin, or anything else that linked Kevin Henry to the death
of Linda. Issue number four police misconduct. Once again, we can talk about the vast array of police misconduct that began with the securing of the scene that took into the afternoon, despite Linda's body being found in the morning. That included people being able to trample in and out of Tanuba House where the bloodstains were for up to six hours after the body had been found, and nearly
twenty four hours from when Linda was viciously assaulted. Other issues to do with police misconduct include the way they took witness statements from those who were intoxicated, the way they took multiple statements from people and only submitted those that matched their version of events. The way they hounded witnesses, some for many months who spoke about this on the stand.
The way they didn't follow up and investigate someone who had allegedly con fest to their lawyer that they'd done it and that information was passed on that they never investigated duck Hart, who, of course, as we've outlined, had motive to have harmed Linda on that day, and who never checked duck Heart's alibi. And we could go on and on as to the issue of police misconduct. Issue
number five, defense lawyers that don't do their job. Again, today you heard how the defense lawyers didn't explain to Kevin Henry his legal rights and his legal right to a new and fresh trial that did not include the lies that had been told by Susan Aubrey in a statement the judge ruled inadmissible, and that would have also ruled out some of the forensic evidence that was inaccurate that the judge was scathing of being present in a
new trial. Issue number six, Charle House snitches. Well, we know that basically the only person that directly points their finger at Kevin Henry is Susan Aubrey. But Susan Aubrey had been charged with murder when she gave her statement against Kevin Henry, and she was in prison at that time.
You also had other witnesses who, as the police admitted themselves, took their statements from people who were currently in prison, who were there that night, who may or may not have been involved, but who gave statements that were untruthful. How do we know they were untruthful? They admitted this
on the stand. Finally, the issue of racial bias. Now, if you've listened to this podcast, you will understand the fact that Kevin Henry is an Aboriginal man, that Kevin Henry comes from a small community in central Queensland played a huge part in him ever being charged in the first place. It has to do with literacy, It has to do with the police's own words, getting a black for a black And we have outlined the systematic racism
in the police department in Rockhampton at that time. You've heard from Kevin's own cousin, You've heard from the Courier male journalist who broke the story that led to the Fitzgerald inquiry in Queensland, which was all about police corruption, who spoke about the systematic racism in the Queensland Police
force at that time. They are the seven issues that the world's leading expert on wrongful conviction says can lead to a wrongful conviction taking place, and that, as he says, any one of those issues can cause someone to be found guilty when they are in fact innocent. But, as we've just quickly demonstrated, not one of those issues occurs here in the trial of Kevin Henry. All seven of
those issues occur in the trial of Kevin Henry. How on earth, then, was Kevin Henry found guilty beyond reasonable doubt because of the issues we just raised that lead to wrongful convictions in Australia and around the world. In America, Barryshack and his organization, the Innocence Project of overturned hundreds of wrongful convictions in the case of Kevin Henry. We are well on our way to doing the same