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 colored blood on his clothing the day after the alleged attamp.
On a shallow mud bank and the Fitzroy 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 pulled 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.
This week Australia's media descended on Rockhampton and all eyes were on the Fitzroy River, which runs through the center of town. You have heard a lot about this river after the past twenty one episodes occurred in the podcast. It is the place where Linda lost her life on the night of August thirty one, nineteen ninety one. Now in twenty seventeen, it's on television as the waters rise.
It's being used as a backdrop by mainstream news anchors who are broadcasting very close to Tanuba House, the site of the nine nine one murder and one of the greatest injustices in this town.
And yet while there are acres of reportage as the Fitzroy River swells, it's only now that the mainstream media are starting to pick up on this injustice, the wrongful conviction of Kevin Henry, who's been sitting in jail for twenty five years, serving time for a crime he did not commit. Yes, he is still in jail. We can tell you that this month Kevin Henry's case again went before the parole board.
Remember we told you earlier on in the year that the Queensland Government has committed to the recommendations of a review into the state's parole system. It hasn't been reformed for over eighty years, and judging from Kevin's case, little has changed.
In this episode, we're going to tell you why Kevin Henry has again been knocked back for parole for the second time in just a couple of months. The decision of the Parole Board revolves around a number of technicalities. But first it's important to understand that under Queensland law, the Parole Board is required to accept the findings of the initial trial and the comments of the sentencing judge. So they can't look at new evidence and they can't
decide that Kevin Henry is now innocent. But what they can do is look at the trial and Kevin's behavior, his conducting of programs over the years, psychologists reports, and the way Kevin would impact on the community and how he would go upon release, whether he would be likely
to reoffend or not reoffend. And the primary reason why the Parole Board have most recently knocked back Kevin's parole is largely based, according to them, on a discussion they had with Kevin on June tenth last year, in twenty sixteen, and they say it was because of the applicants' admissions before the Parole Board on that date.
Now, in order to understand that, you'll also have to understand that the parole decision is based also on cultural differences. We've told you before that the parole system discriminates against Aboriginal people, and when looking at Kevin's case, it's not hard to see why.
Over the past.
Decade, Martin and I have been separately working on the case of the Barable murders, Mardin in his capacity as a lawyer and myself as a journalist. Those were three Aboriginal children who were murdered on the Bowable Mission within a few months of each other, from the year nineteen ninety to nineteen ninety one.
The tragic murders of Colleen Craig Walker, Clinton Speedy Duro, and Evelyn Greenup all occurred only a few months before Linda died. Because of flaws in the police investigation and in the judicial process, the only man who has ever been in the sights of the law over their deaths has never been convicted. After twenty five years of campaigning, the families have been instrumental in getting him back before for the court he's due to appear later in the year.
He has been acquitted over the murder of Clinton and Evelyn, and Colleen has never been found.
Now. During Evelyn Greenut's trial, a linguistics expert named Diana Eads attended and wrote a report on what she saw in the trial, she identified key differences in how Duras assessed Aboriginal witnesses compared to non Aboriginal witnesses.
Now, Doctor Diana ads it's important to understand specializes in critical socio linguistics, language in the legal process, and intercultural communication and this is particularly involving Australian Aboriginal people who speak varieties of the English language as well as their own languages. And she's also the author of the book
Aboriginal Ways of Using Language Now. In addition to her work on the Bouerville trial, she was also instrumental in assisting an Aboriginal woman in Queensland overcome one of the greatest miscarriages of justice in Australian legal history. The Aboriginal woman was subject of years of domestic violence and sexual abuse which resulted in her killing her partner who was
committing that abuse against her. But despite this being a murder trial, the entire trial, including the swearing in of the jury, hearings from both sides, the jury returning, took
just over three hours. This was not justice. After six years in Boggo Road Prison in Brisbane, the conviction was appealed and doctor Reeds was instrumental in showing that the way lawyers, police and all those involving the case communicated with this average woman meant that all those extenuating circumstances, the fact that she'd been subjected to years of abuse, subjected to years of sexual abuse as well, had never
been presented at the trial. And this is what she has to say about why that occurred.
I had the previous year published a handbook through the Queensland Law Society called Aboriginal English and the Law and the things that I was recognizing just from that brief TV interview about the obvious evidence about the silence in that interview long silences, not many pauses, long silences. That was also things I'd written about to look for lawyers in ninety two. So I was then asked to provide an expert report for her second for that appeal against
the conviction. That was the appeal against the conviction, and the grounds of the appeal were that from that the lawyers had set up, the grounds of the appeal were that her own lawyers hadn't got her story and were unable to defend her. And well, the good the good thing is that she was successful in that appeal that
the judges recognized. And there were three grounds on which the that the appeal was successful, and one was related to now I have to get this right because I focused on linguistics, But one was related to the the way that victims of trauma don't always remember everything.
Uh.
And one that there was another social, social, sociologic, social work, psychology grounds. The ground that I was prepared to report on was that the evidence that I was able to gather that made a strong suggestion that her lawyers didn't know how to communicate with Aboriginal people, and the pressure that they were under to get you know, they were
legal aid lawyers working under tremendous pressure. The pressure they were under to go to the prison, get her story, get answers to some questions, come back and prefer her defense. They never got the chance to hear his story, while in the same time period she was telling her story actually to a counselor who was writing things down and who encouraged her to write things down. The sad thing is that those things were never taken up by the lawyers.
But so she had the story and she knew what it was, and she was able she was able to say the grounds for why she had to she had to get the knife, et cetera. But her lawyers never heard it. She was never defended. And so that was an important issue about communicating people with people in my socio linguistic report. It wasn't about particular words, it wasn't
about accent. It was about a few key things, and one was that communication, how you enable a person to tell a difficult story, and that whole issue around the way silence is used it interpreted, and also about how many non Aboriginal people interviewing Aboriginal people, particularly under pressure, they don't wait for the answer, and there is about that we can talk about that. But also they often frame questions in such a way that it's very easy to get people just to say yes. But yes mightn't
mean I agree with what you're saying. It might mean something like you asking me all these questions. If I keep on saying yes, somehow we'll get through this interview and we can sort it all out later. And of course in the legal system you can't.
Now what doctor Diana Eads was describing. There is what we've come to know as good sewardous concurrence, and it's also known as the yes syndrome. There's a perception that the differences in the way Aboriginal people talk, particularly in illegal sense, is confined to remote Australia. But in both cases Dr Eves is talking about cases that involved Aboriginal people living regionally in urban areas. Martin did this issue
of gratuitous concurrence? How did it come up in relation to Kevin Henry's case.
Well, I think it's a very good point you raise that it's not just remote, it's also regional, and it's for Aboriginal people right around Australia. In fact, as the title of doctor Reed's book says, it's Aboriginal ways of using English, so it's even for Aboriginal people whose first language is English. And what happened in Kevin's meeting with the parole Board is just as we know it as.
The yes syndrome is that when the Parole Board was asking Kevin questions, most of his responses were simply yes, and so rather than him being given an opportunity to explain what he meant or being listened to, simply the way the questions were framed by the Parole Board meant that Kevin simply gave a number of yes answers. There's a few reasons why this takes place. One is to
simply placate the person asking the question. The other issue is that there can be a misunderstanding as to why the question is being asked, the importance of the question, and it's also a very stressful environment in which these questions are being asked. But basically, what it comes down to is the Parole Board is saying that in this interview, Kevin broke his twenty five years of maintaining his innocence. Now it's important to point out he never actually did that.
Kevin has always mained his innocence. But one or two of the questions that were asked, which perhaps Kevin didn't understand or which perhaps weren't explained to him properly, resulted in Kevin giving the answer yes. And therefore, based on that question, the Parole Board is then saying that Kevin didn't exactly admit to the crime, but didn't maintain his innocence.
And they went on to say, and I quote in their report, that history is indicated to the board that the applicant did not have difficulty with gratuitous concurrence during those years, and what they're talking about there is over the last number of years when Kevin has appeared before them as a parole board. But of course what they've said that he didn't have a problem with gratuitous concurrence is one hundred percent inaccurate, and it shows the exact
issues that gratuitous concurrence raises. That here a parole board meeting with an individual they barely know, an individual who has maintained his innocence for twenty five years and who attempted to do so again in their presence, walked away believing he'd done exactly the opposite, just as the yes syndrome says, in a question where Kevin probably should have said no, he said yes. And from that they have
changed the course of his life. And so here, once again, as it did at trial, as it did in his initial interview, and as it has done in Kevin trying to get out after twenty five years, this issue of gratuitous concurrence has plagued Kevin's life.
Now it's obvious that the proboard didn't really understand what gratuito's concurrence was that Martin. Do they have an excuse for using it in the wrong way? Do you think.
I really don't think there's an excuse for them not to understand the issue, particularly given it's so important and has been demonstrated in legal precedent in Queensland with the Aboriginal woman we spoke about earlier having her sentence totally quashed by the Supreme Court of Queensland largely based on
this issue. But the study of this issue and the explaining of it goes back to even nineteen eighty where there was a book a university journal called Human Studies, and this was produced by the University of California, and Ken Lieberman, who wrote about the ambiguity and gratuitous concurrence in intercultural communication, cited the most obvious example in all of human communication where this arises, and this is what he says, that it's between the interaction between European Australians
and Aboriginal Australians, where communication is cross modal and therefore can break down. So there we have a university professor explaining at more than a decade before Kevin was even sentenced, and we also have Australian lawyers who have written about
this over the years. One is David Coleman, who has spoken about the cultural disadvantage that Aboriginal people experience under interrogation and particularly cross examination because of this particular issue gratuitous concurrence, and that people are likely Aboriginal people are likely to get themselves into all sorts of trouble, life changing trouble simply because, as he says, based on whether they say yes or no to a question where the
evidence suggests they will say yes. And if the person framing the question knows this, they can exploit it, and it means they can get the outcomes that they desire. If the person doesn't understand this, it means they will totally misunderstand the answers that that Aboriginal person is giving.
One and we obviously saw this was Kevin Henry's confession, which we've discussed previously. But what other examples of gratuitous concurrence have aism already in this trial?
Okay, so the issues we've spoken about in Kevin's confession have to do with Kevin obviously saying yes a lot, as we know, and also having trouble understanding the questions
that he's being asked. But it was not just Kevin who had this issue throughout his criminal trial, every single Indigenous witness on the stand end answered many of the questions put to them by the prosecutor with a yes, and then under cross examination they were asked the same question but leading to the opposite scenario having taken place. So where the prosecutor might have been asking just two
plus two equal four, their answer came back yes. And when the defense attorney says to two plus two equal seven, their answer came back yes again. So there was a great deal of confusion throughout the trial, which is that the witnesses, particularly the Indigenous witnesses, were put questions to them that a they did not understand and b where they simply answered yes, despite those questions being asked twice
and very differently. So I think we can understand why the jury might have been terribly confused as to what people were saying and to refresh people's memory. Remember, the jury had to come back three times for direction from the trial judge. This is highly unusual. And some of this did have to relate to the witness's answers. And we also saw on the stand that certain witnesses simply contradicted their own statements that they'd given, and that's because
those witnesses, just like Kevin Henry. And remember, many of these witnesses had not committed any crime at all, simply gave yes answers to almost every question the police asked them. They were clearly under a huge amount of stress. They were perhaps under duress and being pressured to give statements, and their answers, no matter what the question, were coming back.
Yes.
Now, one more thing I have to remind you about. Almost all of these witnesses gave multiple statements, and almost every single one of those statements was contradictory, almost exclusively. When witnesses were asked in their first statement who was involved, they were able to give the names. And then when they were asked if they were sure, yes, are you
sure you saw this person do this? Yes, Then when they gave their second statements and the police introduced the name of Kevin Henry, even though the witnesses had never raised his name, or if his name had been raised
in the past, had said he simply wasn't there. Suddenly, when they were pushed that yes, syndrome kicked in again, and people who had said they didn't even see Kevin Henry that night were suddenly seeing Kevin Henry in every scenario the police put to them, not by describing that scenario,
but simply by saying yes. So the issue of gratuitous concurrence played an enormous role in the trial of Kevin Henry, and perhaps an even greater role than any other murder trial you're likely to come across, given that the accused, Kevin Henry, had no forensic evidence presented against him, no DNA evidence presented against him, pleaded not guilty, and had not a single eye witness give evidence to say that they saw him commit any crime whatsoever.
So what specific examples do you have?
So during the trial, First we'll take the example of witness SM, who we've spoken about in the past. S M was put to her by the prosecutor that they had not been drinking throughout that day, and the answer was yes. The questions continued, while everyone else had been drinking. You didn't drink until after lunchtime? Answer yes. Now under cross examination, Kevin's defense attorney believed SM had been drinking, and so they asked the question, you had been drinking,
hadn't you during the day? Answer yes, you'd been drinking before lunchtime that day? Answer yes, Now This very basic example shows that four answers were given. All of them were yes, but the two contradict each other. So two yess say not drinking and not before lunchtime. The second two yeses say yes drinking and yes before lunchtime. Now there were also other examples. Will take Witness JF, who was shown some of the key forensic evidence by duck Hart.
Witness JF was shown this evidence the following morning, after Linda had been murdered and after her body had been found. The particular evidence was some of Linda's clothing that was found just near to nuber house. Now, asked by the prosecutor why she'd gone to where that evidence was who'd
shown it, JF really couldn't give an answer. JF attempted to describe how it might have taken place, but conceded that during her statements she'd given multiple answers and didn't really understand what the police were trying to get to. But the prosecutor pressed forward and simply moved past this issue. But this was quite crucial. We're talking about Linda's clothes, key pieces of forensic evidence that remember, did not have any of Kevin Henry's DNA on them whatsoever. So who
found them and how they were found is very important. Now, just moments after being very confused as to what happened, JF was asked by one of the other defense lawyers for one of the women Kevin's co accused if duck Hart had shown her that evidence, and the answer was yes, And a number of questions were asked. Now they are quite long questions, so we don't need to repeat them, but as to exactly where the clothing was, and that was described by the defense lawyer, and the answer came
back yes. And this went on for quite a number of minutes. And so here once again we can see a witness who, based on one lot of questioning from the prosecutor, has no idea how they ever saw or found that forensic evidence, and then under cross examination from the defense lawyer, suddenly can explain how that evidence was found by them, who showed them and where it was. Now, to be fair, we don't know the accuracy of that witness's statement. All we do know is once again the
witness's statement was absolutely contradictory. And the reason behind this contradictory statement was this yes syndrome, This gratuitous concurrence. So once again we have another example of just how important it is in Kevin Henry's trial, and it goes to
this issue. If every witness was giving contradictory accounts, and if every witness was giving multiple statements, and they did give contradictory accounts and multiple statements, how on earth could a jury find Kevin Henry guilty beyond a reasonable doubt with no forensic evidence, no eye witness, and not a single witness being able to give a solid account of what happened without contradicting themselves multiple times. Now again, this is not to blame the witnesses. This is the fault
of the police and the prosecutors. They knew this was going on, they knew because of the statements they had taken that they were inaccurate, and they knew why this was occurring, but they pushed through to get a conviction.
And where this comes back to the parole of Kevin Henry is that quite clearly, after twenty five years, employees of the Queensland government, previously the police and prosecutor and now the Parole Board do not understand the issue of gratuitous concurrence and are in fact using it against Kevin Henry.
This is not justice. It was not a fair trial, and it is not fair to ask a man who has maintained his innocence for twenty five years to change that view that he believes absolutely and which he will not waiver from, because it's the truth that a parole Board can suggest to him, based on a few answers that this issue of gratuitous concurrence is not a problem for him, and as they said, he did not have difficulty with gratuitous concurrence, and their desire for him to
therefore admit his guilt and undertake an offender's program something that Kevin is not keen to do because he is
not an offender. He is an innocent man. So quite clearly the Parole Board needs to take a new look at the issue of gratuitous concurrence, and quite clearly this new review of the Parole Board must further look at the way aboriginal entires Strait Islander people are treated in Queensland by the Parole Board, by the courts, and most importantly by the police, so that no one else finds them in the situation that Kevin Henry does. Having spent a lifetime behind bars for a crime he did not commit.
So, basically, in summary, the Parole Board's main reason is that Kevin Henry has in some part admitted guilt and now he won't do an offender's program. That's basically, in summary why they won't grant him parole.
Yeah, that's right. So the reason that those arguing for Kevin's parole place on Kevin maybe having misspoken is gratuitous concurrence, and the Parole b what's saying, no, we don't believe he had a problem with that. He's admitted to us
in some part that he's committed the crime. Therefore he should do the offender's program, and that leaves us at a stalemate where, because of a misunderstanding, Kevin Henry's parole has been denied and he'll remain in prison until his next parole date because of this issue.
That you raise. Do you think it would happen to a white prisoner.
I don't think it would happen to a white prisoner.
In fact, one thing we know that the Supreme Court spoke about all those years ago when they set an Aboriginal woman free who'd been a victim of brutal violence for many years was that Aboriginal people should be entitled to either people assisting them when they're doing these sort of interviews, having an interpreter, and that the people asking these questions should be aware of the issue of gratuitous concurrence and understand if it's occurring, and to rephrase their questioning,
and to make sure they don't simply trap a person with yes or no questions, that they don't use gratuitous concurrence to get the answers they want, but that they conduct the interview, whether they be police, prosecutors or parole to get the truth, and that it's a truth that the person, the Aboriginal person giving the answers is able to say in a way that they understand, Yes, this
is what I'm trying to tell you. And had the Parole board asked Kevin Henry directly, are you now confessing to this crime, he of course would have said no, I never did it, and I maintain my innocence as I have to every single person I have ever spoken to for twenty five years. But they didn't attempt to do that. They simply asked questions, never sought to see if Kevin understood the process, never put it to him that he'd maybe just made a slip of the tongue
that now changed things. They simply progressed on and then wrote the letter back denying parole. So I don't think this would ever happen to a person non Indigenous person, particularly a non Indigenous person with high to normal literacy levels. This is really an issue for those who are raised where English is perhaps not their first language, or as we've heard from doctor Reed's, where Aboriginal people have a way of using English that is not the same as
the way everyone else uses English. This is known to the parole Board, it's known to lawyers, as we've discussed, it's been worked on by academics for nearly forty years, and yet in the case of Kevin Henry, they continue to get it wrong.
So, as a person running the case for Kevin Henry, what's the next step? What can you actually do about this?
So our next step is to once again attempt to explain to the parole Board the issue of gratuitous concurrence and to have them consider that in the decision making process, and also to have them consider the way it's impacted upon Kevin's Police interview Kevin's trial and their own interviewing of Kevin Henry, and also as we seek a pardon from the Governor of Queensland and have the Attorney General's Office re examine the case of Kevin Henry to ensure
they are left with absolutely no doubt that the issue of gratuitous concurrence exists. It's a field of study for academics, it's the practical work of people like doctor Diana Eads, and with someone like Kevin Henry, it's the reason he's spent twenty five years in prison and them not understanding
it is not acceptable. The work's been done, the academic work is there, the books are there, and the precedent has been long since set by the Queensland Supreme Court that this is to be taken into account and it's time it was taken into account in the case of Kevin Curtin Henry.
That was Episode twenty two. Join us next week for Curson