Beyond a Reasonable Doubt

of a road and broom seven years ago. Mister Gibson, who was from a remote Western desert community, was sentenced in twenty fourteen after pleading guilty to the unlawful killing of mister Warnecki, but.

day by day in our criminal courts. It means what it says that you, as twelve citizens who have a wide range of experience of life and a great fund of common sense, look at the evidence and decide whether or not the evidence that's there satisfies you beyond any reasonable doubt. If a reasonable doubt remains on some aspects of the evidence which has to be proved, then the Crown has failed in respect of that charge. The verdict that you reach must be the unanimous verdict of the twelve of you.

as gratuitous concurrence. They might not have understood the technicalities, but they could at least explain the issues that Aboriginal people have always had dealing with the police, and the issues Indigenous people face when they're questioned by police, not provided legal services, not provided interpreters, and the general distrust of law enforcement.

here's what does and I'm quoting the judge. Now, the fifth count is the one of the murder that on the thirty first day of August nineteen ninety one at Rockhampton in the state of Queensland. Kevin Allen Henry murdered Linda, remember when leaving out her last name in respect for her family. Now, the definition of murder involves considering a number of things. First of all, any person who causes the death of another directly or indirectly by any means

whatever is deemed to have killed that person. That means, for present purposes, if Kevin Henry through the unconscious or badly abused body of Linda in the river and left her drift there, and she then drowned, he would have deemed to have killed her. In other words, a person may unlawfully kill someone else without themselves actually doing the direct things that causes the death. It is not necessary for you to imagine that he stood in the water

and held her head under until she was drowned. If she is thrown in the river in the condition in which she could be unlikely to look after herself, well, that would directly or indirectly cause her death by drowning. All killing is unlawful unless it is authorized, justified, or excused, or there's no authorization, justification, or excuse. Any person who unlawfully kills another with the intention of killing them or with the intention of doing them grievous bodily harm, is

said to have murdered that person. So the Crown must prove an intention to kill or to do grievous bodily harm. If there is no such intention proved, but you are otherwise satisfied that the accused has caused the death of Linda, and that it was not author authorized, justified, or excused, then you would return a verdict of guilty of manslaughter. Now, having said that, it's important that you remember, as the listeners, that Kevin was not found guilty of manslaughter. He was

found guilty of murder. So intent becomes very important. What the judge has just explained is that Kevin Henry had to have had the intention of killing Linda.

And on quite a number of occasions, the judge wanted to make this clear that speculation was not acceptable, that jumping to conclusions was not acceptable, that despite the horror of what was done to Linda, the jury, in particular relating to Kevin Henry, remembering unlike the women, there was no forensic evidence linking Kevin whatsoever, that they couldn't simply

assume that there was and that it was missed. They couldn't simply make up their own mind that someone had to go to jail for this, and because Kevin Henry was in front of them, that it would be him. The judge was also very keen to point out something we've stressed to you, and this is what the judge says.

It is a rather bizarre circumstance here that for some reason the police charged the three women with murder at one stage, although there doesn't seem at that stage to have been any evidence that they were involved in Linda's death, And this action tends to suggest a willingness to jump to conclusions rather than to get evidence assembled which proves something. If that has happened, and happened with trained police officers. It is very very important that twelve citizens who are

assembled as a jury don't do the same thing. You may only return a verdict of guilty against Kevin Henry on the charge of murder if you are satisfied on the evidence that he did it. You must not jump to conclusions. You need to evaluate these so called confessions, looking at the witnesses who say they heard these things

and deciding whether you can rely on them. And then if you are satisfied with the actual words, you have to be satisfied that they amount to a confession of murder and not to some other statement or garbled account that doesn't tally with the other evidence. So quite clearly, the judge was very keen to raise the issue of the three women being charged with murder and Kevin Henry being charged with murder on the same day prior to their being any evidence found by police that either implicated

the women or Kevin Henry. He also wanted to make it quite clear that the statements made by witnesses had to be evaluated. You couldn't just simply rely on them because they were said. They had to match with the evidence and the jury had to satisfy themselves that not only were these statements made, not only were they truthful, not only did they match the evidence that they had to be linked absolutely to murder. Otherwise it simply does not add up to beyond a reasonable doubt.

is what he says. She gives you a very good illustration of why this is so, because she has been interviewed twice and has changed her story the second time, blaming Henry a great deal than in her first account. In neither instance has she given her evidence on oath, and in neither instance is she cross examined in your presence. So from Henry's point of view, you must disregard it.

It's not admissible in law against him. Now, given the judge made this very clear to the jury, it seems to me quite clear that he was worried the statement Susan Aubrey had made were not accurate and were potentially false. And we've explained previously why that would be so, because Susan Aubrey changed her statements on a number of occasions, first never mentioning Kevin Henry, and then later after she herself had been charged with murder, suddenly she was raising

Kevin Henry's name left, right and center. The jury may have taken that into consideration. They may have actually believed Susan Aubrey despite there being no evidence what she says is factual in any way, and the judge was very clear to tell them that what she said could not be used against Kevin Henry, must be disregarded and it

was not admissible in law against him. But this was one of the problems with there being a co trial a joint trial, that despite this evidence being not admissible, it had been heard by the jurors because because Susan

Aubrey was on trial alongside Kevin Henry. So one thing to consider, did the jury get confused by these instructions and was Kevin Henry found guilty partly as confusion arisen out of the fact there was a joint trial and they heard evidence they would not have heard had Kevin Henry been on trial just on his own.

answers being coerced or forced. It could be because that person doesn't want to get in trouble, doesn't want to implicate others. Maybe they lie because they were simply intoxicated and don't remember anything at all. And this is what the judge said. As I said, people may lie for a variety of reasons. They may not want others to find out. There are various reasons for lying which don't amount to a consciousness of guilt. But more importantly, at the end of the day, there must be other evidence

that proves guilt. Not just other evidence that proves what is said is a lie, but there must be other evidence that proves guilt. This is very important in the case of Henry. Keep that in mind when we come to it. So here the judge was particularly alluding to Kevin Henry and making sure that the jury kept that in mind when they came to the final wrap up

of what they were going to have to decide. And what he was also saying was that if this confession was a lie, so that it was coerced and what was in it is not accurate, you can't simply convict Kevin based on that. There must be other evidence that proved guilt. And as the judge said previously, that can't just be other people's statements. That could also be lies,

that would just be speculation. And this is where the issue of a lack of forensic evidence, a lack of eyewitness testimony, and all the issues we've raised about tidal record cords, the way the forensics were handled, the fact that none of it linked Kevin Henry comes into play. The judge was very clear to point out to the jury that a confession coerced or not was not something the jury could purely rely on.

and that they needed other evidence. And this is what he said some twenty pages later as a way of reminding the jury that you must not jump to conclusions. You need to evaluate these so called confessions, looking at the witnesses who say they heard these things, and deciding whether you can rely on them. And then if you are satisfied with the actual words, you have to be satisfied that they amount to a confession of murder and not to some other statement or garbled account that doesn't

tally with the other evidence. This is vital because when the judge says looking at the witnesses, he's not just talking about the people at Tanuba, he's talking about the police as well. And listen to his words again, you need to these so called confessions. He doesn't say confessions,

he doesn't say statements. He makes it very clear that the jury needs to consider them as potentially so called confessions, as in they could have been coerced, they could have been made up, and they may not be based in any fact whatsoever.

as this evidence was being resented. And so the judge raised the issue about the difficulty for the defense in such a scenario, and perhaps what would have happened if Kevin had a trial of his own, And this is what the judge said. If Kevin Henry stood trial on his own, it wouldn't, of course, have been possible to have this other material from Susan Aubury come out as part of the crown case. The conduct of a defense

is a thing that requires painful judgment. Often, as I understand the way mister Murray has conducted the defense, he has let this material go before you to show how once the Tenuba community was confronted with a corpse, as it were, it looked for someone to carry the blame, and Kevin Henry was the person who ended up with that burden. You have the allegations that Susan Aubrey made which demonstrate the possible truth of this line of argument.

So what the judge is saying there is that the multiple statements of Susan Aubrey would not have been heard by the jury if Kevin was on trial on his own, and that the truth around Susan Aubrey's conduct in all circumstances would perhaps reinforce this line of argument that the Tanuba community, or at least some people who were there, decided to put the blame on Kevin Henry because that's what Susan Aubrey did, and there were clearly questions about the validity and the truth of her statements.

The judge also explains quite a number of times that the issues of the tide play a large part, and what he's trying to say to the jury is that there are many issues here, not just one where there could be doubt, and that the jury has to be satisfied beyond a reasonable doubt, and that a lot of this forensic evidence that was presented and a lot of the other evidence that was presented could possibly raise that doubt. And so here's what he said towards the end of

his summation. Your task is to be satisfied beyond reasonable doubt on the evidence, not to say to yourself, this is the most terrible crime. We must bring someone to book for it. You must return a verdict on the evidence that satisfies you beyond reasonable doubt. Now this is your responsibility, ladies and gentlemen, and I simply emphasize this to you. I wouldn't suggest for one minute that you would do other than return a verdict according to the evidence.

But there is this hazard in this case that we may jump to conclusions, and you must not do that. You must follow the path of the evidence. You must find that there is evidence that satisfies you beyond a reasonable doubt that Kevin Henry was the person who put the body in the river. If after you've considered all this carefully, you are left with a doubt about that.

If the duck Heart suggestion raises any doubt, if the people down the river raise any doubt, or if the other circumstances that you see there leave you with a doubt, then of course you must acquit Kevin Henry of the charge of me.

And what the prosecutor wanted to raise was he felt that the judge had not in fact gone far enough in discussing the year surrounding Kevin Henry's alleged force confession, which the prosecution of course is taking as a confession, and this is what the prosecutor says, that if the jury don't hear the words that the Crown says are on it, that is the confession, they simply must disregard

it as part of the evidence against Kevin Henry. So it was in fact the prosecutor that led to the jury being recalled for the first time, and the jury had this explained to them. Then the jury returned a second time, and this time the jury was confused about what grievous bodily harm was. Remember this relates exclusively to

the women and not Kevin Henry. But grievous bodily harm was explained in great detail to the jury, but just minutes after they'd retired, they'd had to come back yet again and have it explained to them all over again, and it was quite lengthy what the judge went through. He went back over a great deal of the evidence against the women. Then at five point twenty six pm the jury came back again. Now they didn't understand the issue of intoxication. Remember that many of the witnesses were

heavily intoxicated when the crime took place. Remember the witnesses were all intoxicated when they gave their statements. In fact, its thoughts. Some of the witnesses may have even been intoxicated when they were on the stand, as many admitted themselves. They simply drank every day, and quite heavily, And the

judge wanted to remind the jury something about this. After he'd explained the issue of intoxication and in the way it impairs people's ability to have a clear mind, he reminded the jury that if Kevin Henry was heavily intoxicated to the point where he'd fallen asleep during that day, as we know he did, then his ability to form intent to commit murder would not exist. He was very detailed in these instructions, and the jury retired once again.

Now only moments later the jury returned again. They were confused about more evidence, They were confused about some of the witnesses, They were confused about the difference between manslaughter and murder, and they were confused as to what intoxication

would be and how someone would be intoxicated. Now, it's important that at this stage the judge wanted to make it crystal clear, and because the jury seemed confused about certain witnesses, in particular, the judge reminded them what that witness had drunk that day, and he says, three cartons, three flagons, one vodka, and one rum and cola, just a big rum, you know, straight and just pure rum and coke in a coke bottle. Because that's what the

witness says, and that's what the police are alleged as well. Now, clearly that amount of alcohol would leave someone heavily intoxicated, and so what the judge again was trying to say, is that would deeply impair that witness's ability to remember anything, to have given a truthful statement, and whether the jury should even consider what they said to be plausible or factual. Again, the jury retired.

jury returned and their verdicts were unanimous. In the case of Susan Aubrey, they found her guilty, in the case of Amy Saunders, they found her guilty. And in the case of Kevin Henry, despite all this confusion, they found him guilty and twenty five years later, he's still in prison.