Just before nine o'clock last night, the jury returns guilty verdicts against all three defendants. It was absolute shambles, to tell you the truth, just absolutely really.
Comorant blood on his clothing the day after the alleged detemp on a shallow mud bank and the fitz Roy River. Basically, I think most of the people are used to me. There 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. Our producer is Paul Watts. Music by Clint Curtis and produced in collaboration with the Brisbane Indigenous Media Association. And a warning, this series contains the names of deceased peoples and has distressing content that might sid some listeners.
We are now up to episode five in this podcast series and by now you might be forming your own opinion about the innocence of Kernin which is Kevin Henry's nickname Kevin Henry has been in jail for a quarter of a century over the murder of an Aboriginal woman named Linda, found on the banks of the Fitzroy River in September nine ninety one. We've told you a little
bit about how we came to doubt Kevin's guilt. Those were based on historic title records which showed it was very unlikely that Kevin had placed Linda in the water where police alleged he did, which was on the south side of the river, the Tanuba House side.
We found she was most likely placed in on the opposite side, on the racecourse side. If you've never been to rock Hampton in central Queensland, that would require about a five to ten minute drive over one of rock Hampton's two bridges. We also told you about how the police failed in following up other leads despite the need
to go down every avenue of inquiry. Who told you a little bit about Linda's last day of how she most likely came into contact with the three women who brutally assaulted her that night the night before she was found, because she was found having sex with one of the men, Duckhart Duckhart.
Was the man who later found Linda's clothes at Tanuba the next morning, before he would have known that she had been found on the banks of the river. For the past two weeks, we've also been telling you about Kevin's confession, the only thing that really ties him to Linda's death. There was never any DNA evidence tying Kevin to Linda. The only thing that stuck to him was
that confession. And we brought you an expert in forced confessions, Pat McGuinness, whose legal work was the subject of the Academy Award winning documentary Murder on a Sunday morning.
We raised a lot of concerns about Kevin's confession and particularly the police tactics used to extract information. Now we'll take you back again to the day that Kevin was picked up, because this day is important. It was September five, four days after Linda's body was found. Now, we told you that in the afternoon Kevin was picked up by police while walking on the street and taken to Rockhampton Police station.
But earlier that morning, around six am, in fact, the woman who led the assault on Linda, Susan Aubrey, was also arrested by police. Her arrest was followed by the arrest of two other women that day, Margaret Bob and Amy Saunders. All three of the women were described in several witness statements and later admitted leading the assault on Linda that night. We've also told you that the assault was brutal, sustained and had the potential to be lethal.
We're going to tell you a little bit more about that assault later in the series. But on this day, the police picked up Susan, Margaret, and Amy and charged them with murder. The man who recommended the three women be charged with murder was the highest ranked police officer in Rockhampton, Detective Inspector Kel Weeks. Remember that that's important now.
Even though the police had already charged three women with murder, for some reason, the two arresting officers, Senior Constable Leslie Girk and Senior Constable Robert Hunt, picked up Kevin.
They took him back to the Rock Campden police station that afternoon. So that day, those few hours on September fifth, before he was picked up, was the last time Kevin Henry was free in a quarter of a century. Because after that confession, he was charged with murder. Now, think about that four people charged with murder on the same day, two separate sets of circumstances.
We'll talk about that later.
Now, for the last two weeks, we've gone through Kevin's confession in detail. Remember, so how it ended. Here's Elijah Player, a young Aboriginal radio announcer from rock Hampton's radio station four US, playing the role of twenty two year old Kevin Henry.
See that's it, man, I just told you everything.
That's all the evidence.
I've got nothing to say. No more. Now you can't ask me anymore because I've got nothing else to say. Kevin ended that interview and was very clear he had nothing more to say. Remember, he had no legal representation, he'd only been to year nine in school, and he was likely very confused about what was happening. But that interview didn't end there.
Now, after Kevin refused to say anything else, Senior Constable Girk and Senior Constable Hunt took Kevin for a ride in the police car. They taped the conversation with him on that short trip. Now, they took Kevin down to Chanuba House and they videotaped him walking through the scene of the crime. Now, why didn't we include that fact in the last two episodes.
Well because of this, this is the judge at Kevin Henry's trial. So after the initial formalities, the judge was quick to raise the issue of the confession. Now, let me read from the transcript. The judges remarks, this is what he said, mister Wright. The prosecutor has recognized that it cannot be said that the interview that continues after the accused statement on page nineteen is admissible as a voluntary statement. Clearly enough, the accused is exercising his right
to decline to answer further questions. The exercise of this right is ignored by the investigating police, and the accused is put in the position where he is effectively told he has no such rights. He makes some two or three further attempts to assert that he wishes to say nothing further, and these are ignored. Clearly, the record of interview from the middle of page nineteen onward at the CI Branch Rockhampton is tainted and cannot be received as
a voluntary statement. The judge then goes on to say, the accused has quite clearly at page nineteen exercised the right that is the right of every citizen that right must be respected in its entirety, both by the court
and by the investigating officers. So I rule that the subsequent interview of the record at the CI branch subsequent to page nineteen is not admissible, as indeed is agreed, and that the video and the audio recording of the trip down to Tanuba and the return to the CI branch is also not receivable because it is not voluntary in the sense that the law uses that word.
So Martin, in the judge's statement, just then he imagined something about a page nineteen.
What was in that page nineteen.
Well, that's a part of the interview where Kevin really asserts both his rights not to need to speak anymore, and he really states what he wants to say, and he ends by saying, nobody killed her. 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 else to say. And that's a clear exercise of his right not to further continue with that interview. And yet he was continued to
be pressed and pressed and pressed. And we know now that that interview went on for at least an hour further, and he was taken to Tanuba House, he was put in a police car. He was interviewed in the police car both during the ride down and back from Towas And so the judges ruled that all of that was involuntary. And we know Kevin earlier in his interview, had already asked for earlier quite forcefully. He also declined to comment
on multiple times. So when the judge says that Kevin proclaimed I got nothing else to say, that was not the first time Kevin had exercised his right not to continue with the interview. The judge clearly identifies two or three other times he feels Kevin tried to end the interview and should have been allowed not to speak any further.
And there's also a great deal of concern about the fact that Kevin didn't have legal representation, despite what you've already heard him requesting it multiple times.
So, I mean, the police officers heard him say this very adamantly. They knew he didn't have legal representation because at the first time he'd asked for it, they still took him in a police car and took him down to Tanuba. I mean, I know, we can't really establish what their actual motives were. But it just seems like he said it over and over again. Why do they need to take him down to Tanuba.
Well, clearly they're trying to get him to say something they want to hear. If they were satisfied that he'd said, or he knew, or they could get out of him, they would have stopped. But that despite knowing the law. Surely, as men who'd conducted many of these sort of interviews which they say they had on the stand, they continued to press on despite everything they're taught. And the judge was pretty ruthless in ruling a lot of this confession out. He was very clear didn't need to take his time
on it. It was a very clear matter of law, and he was fairly scathing of the police and the police practice.
And then what does it say that he ruled such a big chunk of the confession out so that it was involuntary. What does it say about the other parts of the confession and the ones we've already read out on air. Doesn't mean that potentially they were made involuntary too, like what we think.
Might have happened.
Well, the judge does say that even at the part he ends the interview where the judge doesn't allow any more of that interview to be placed into evidence that he was concerned on multiple occasions Kevin had already tried to terminate that interview. So even the judge feels the sense that Kevin was under duress and that he was not voluntarily responding to the questions he was being asked and the way he was being probed, And in fact, he even says that the police ignored the rights that
Kevin has all citizens have. So I think it definitely raises a great deal of concern about the police behavior that day. And we've heard last week from Pat McGinnis, an expert in this area, and we've heard from other experts that false confessions are very common, and now we know that Kevin was pushed even when he didn't want to say anymore.
It's very interesting that this came up right at the start of the trial. Isn't it that this confession played such a big part at the start of the trial.
Yeah, definitely, And I think that's for two reasons. One, the prosecutor had clearly already accepted that there was a great likelihood a huge amount of the confession was going to be ruled inadmissible, and he didn't protest that at all. So even the prosecutor was accepting that the majority of Kevin's statement wasn't voluntary. And I think the other reason we can assume that this came up so early is
because there really wasn't any other evidence against Kevin. So for the bulk of the trial, all that's been relied on is this one confession, and if most of that is already struck off, well that's how they had to start the trial. So they knew what they were working with.
And they weren't working was a lot.
Obviously, no, they weren't working with much at all. So the judge made it very clear that in removing such a large portion of Kevin's statement, that what was going to be allowed into evidence was considerably reduced compared to what the prosecutor had previously believed. So it certainly changed the shape of the trial, and it lets us know a lot about what the judge was thinking, and in an extent, even what the prosecutor was thinking, because he didn't contest. Once that judge is ruling.
Now there was something else, very very strange about this case.
We told you that On that same day, September fifth, the last day Kevin Henry was a free man. Three women, Susan Aubrey, Amy Saunders and Margaret Bob, the women who led the brutal assault on Winder, were arrested as well in the morning. They were charged with murder.
But how could that be?
How could four people be charged with murder for two separate sets of circumstances. How could Linda have been murdered twice? Mardin, We've sort of been operating under the assumption that the women it was Kevin who was charged with murder, the women had gotten the charges for Grover's bodily harm. But we later found out that wasn't the case, did we How did we find that out?
Well? I received a package in the mail and I was assuming that going to be a transcript or further pages to the transcript of Kevin's trial, but in fact what it was was a transcript of proceedings in the magistrates court in Rockhampton where the three women were formally
presented in front of a judge charged with murder. And this was the first time we'd heard about it, and so I'm not sure how much that Kevin's later lawyers knew about this and how much that had been analyzed even during his initial trial.
It's interesting, So how long had all four people been charged with murder over Linda's death?
So all four were charged on the fifth of September, and the murder charges against the three women were not dropped until the twenty seventh of February the next year. So that's a good five month period where we have Kevin and then a set of three women charged with
murdering the same woman, Linda, but in separate circumstances. And that's a very odd state of affairs, and it's something I've discussed with a number of lawyers, both in Australia and overseas, and it just seems a highly unusual fact that you could have two groups charged with the murder of the same person, but based on totally separate evidence and different version of events. One can't be true. In fact,
maybe both aren't true. But we find out that those charges against the three women are subsequently dropped.
The thing I find very confusing about it is that the three women of charges murder early on in the morning, and yet later on Kevin has picked up so deliberately targeted it sounds like because they knew who he was, and then he's gone through this big process of almost being like, I think, being her worst to confess that they'd already had three women charge with murder already, they'd already charged people, so got the people they thought were
responsible for this death. Why would they need to go pick up Kevin and charge someone else's murder.
That was a question I had as well, But the answer became very clear once I received this further information in the mail. And what that shows is that Susan Aubrey was arrested at six point fifty am that morning, on the fifth of September. Now, she'd already given a statement to police the day after Linda's body had been found, and in it she doesn't say anything about Kevin's involvement.
But once she'd been charged with murder, she started taking a completely different line to her first statement, and that's when Kevin's name was raised. Now people have to remember that everyone would have been talking about Linda's death, the circumstances, and there'd been a lot of witnesses to the vicious
assault the three women committed against Linda. But somehow in that second interview, Susan Aubrey starts pointing the finger at Kevin, and the police, for whatever reason, start to take that seriously.
So at this.
Point, were there any suspects for the murder of Linda other than these women, Well, we.
Can tell immediately from their statements that there certainly were. They were mentioning a lot of names by now. But we also know something else. A local lawyer approached one of the police officers that day and made a statement. Now it wasn't officially recorded, but it is acknowledged to have taken place, and that is that a client of this lawyer had confessed that he'd committed the murder, and that client was not Kevin Henry.
Did the police look into it?
Was there any suggestion that they had considered this other suspect.
We don't believe they ever looked at it. In fact, we know once Kevin was picked up on the fifth of September and the interview conducted with him, most of which is later struck out as involuntary, the police didn't investigate anyone else. They never followed up on this individual who had supposedly confessed to a lawyer. They never followed up on the other individuals named in the statements of the three women who'd committed the violent assault and who
were then charged with murder. So the police should have been looking for their co assailants if they believed, and clearly they did, that those three women had committed murder. But even the fact of a lawyer coming to them and stating that someone had confessed to them didn't seem to change the way they conducted their investigation. And once they'd taken their statement from Kevin, even though it's clearly tainted and the judge ruled that, they just stopped investigating point blank.
So who actually charged the three women? Was it the same police officers?
So the charges laid against the three women that was handled by the most senior police officer in Rockhampton at the time, Detective Inspector Kel Weeks. But we know from the trial transcripts that Senior comes to a Wesley Girk and Senior comes to a Robert Hunt. Were the ones that pressed forward with interviewing Kevin, with taking him to
Tanuba and then we're charging him with murder? And it wasn't the detective inspector who would charge Kevin, even though the detective inspector was most senior officer and had already charged three individuals in relation to Linda's death. The two senior constables took it upon themselves to charge Kevin.
I mean, that's very interesting because obviously, at that point, the highest ranked police officer in Rocky had decided that there was enough to charge women, and yet lower ranked police officers have gone ahead and decided to look into someone else.
It's quite unusual, especially in a country town. It's not as if we're in a large city in the United States where multiple murders are happening on one day. This was clearly the most serious and horrific event that had happened in Rockhampton for some time. So you would assume that the police were trying to get everything done to
the book accurately and investigate it fully. And we know that the most senior officer in the town was watching over the investigation and he'd decided to charge the three women.
Now why two lower ranked officers and much lower ranked officers would go out of their way on that same day to charge Kevin without consulting with their superior officer, having conduct did an interview with Kevin and seemingly trying to get confessions based on just the implication of one of the accused murderers seems to be very bizarre.
So I guess, bringing it back to how we I guess started. In February, the women and Kevin, their case comes up in court the Magistrate's court.
Are all four still charged with murder.
In the first court hearing, all four are charged with murder, but it's only the three women who appear. Kevin's not scheduled to appear for another couple of months. And it's quite unusual what occurs. And I'll read from the court
transcripts so everyone can understand very clearly what happened. So the judge reads the charges and these are against the three women, and he states that on the thirty first of August nineteen ninety one, at Rockhampton in the state of Queensland, you murdered one winder and for cultural reasons, we won't say her last name. He goes on to say, there is a further charge on the same day, each of you unlawfully did grievous bodily harm to one winder.
At this point the prosecutor interrupts, and this is where things get a little strange. The prosecutor says, there are preliminary matters. First, I would seek to substitute charges in relation to all three defendants in relation to those murder charges. Now that's not the strange part. What happens next is what's unusual. The judge asks one of the lawyers for the women, does he agree to these murder charges being dropped? And he states yes, I was informed of that only
this morning, your worship. So at that point, the judge strikes the three murder charges against the women. But what we now know is that for five months, the women's lawyers had no idea that the charge of murder was going to be dropped against them. We don't know when that decision was made. We do know that the lawyers for the women didn't know until that day that it was going to take place that those murder charges against
the three women would be dropped. What we don't know is when the police or the prosecutor made the decision themselves to drop that charge. So it appears that for five months, four people were charged with murder with two separate circumstances.
So then what happened next.
Well, then we have quite a lengthy period of argument between the prosecutor and the defenders for the three women. Once that murder charge had been struck out, the prosecutor tried to introduce a new charge of unlawful killing against the three women and maintains the charge of grievous bodily harm. So there's a great deal of debate between the defense lawyers and the prosecutor about that unlawful killing charge, and in the end they go back and forward on a
crucial number of matters of law. But in the end the judge rules, based on the fact that there is another person who's been charged with murder and that he will hear that case in a few months time, that he won't accept the unlawful killing charge, and that is removed. So the women are no longer charged with either murder or unlawful killing. Only the charge of previous bodily harm
is allowed to stand. And this is important because we know at the start of Kevin's trial the judge initially raised grave issues about his confession, and we also know he struck a huge part of that confession from the record. Now we find out the judge also had grave concern about the way all four were charged. What they were charged with, and the fact that the prosecutor seemed to be changing his mind on the run and had only told the defense lawyers that day what he was doing,
and the judge just doesn't accept that. And I think that goes largely to the evidence against Kevin and perhaps even the evidence against all three women. And this seems to stem from the police really not doing their job and not having conducted a thorough investigation, because on that day in February, the judge does ask about the level of evidence against the accused, the.
Level of evidence against who Kevin or the three women.
Initially he asks about the evidence against the three women, but given the lack of evidence and information put forward, he then goes on to ask what the evidence is against Kevin. And that's important because for him to be convinced that he can drop the unlawful killing charge against the three women. He states that he needs to be sure that the murder charge against Kevin Henry is still going to go ahead, and so he's probing as to how much evidence there actually is, and there's not a
great deal presented. There's some forensic evidence, more of which would be later revealed at Kevin Henry's trial, and one of the arresting police officers is called to the stand to explain to the judge what evidence there is, and interestingly enough, some of his evidence changes at Kevin Henry's trial.
So did the defense have much to say about that that lack of evidence.
They did, And what we find out about the transcript from the February is that they hadn't seen most of the evidence, particularly the physical evidence, and they asked that the evidence be tended and then ask for an adjournment so that they can look through the evidence. So that's highly unusual that we've got charges being dropped, new charges being included. We've got the defense not having seen evidence, the defense not being aware that those charges were going
to be dropped. We've got a judge who's not convinced of the whole process. We've got a judge who is only agreeing to drop charges and only agreeing to introduce new charges if the prosecution will bring that evidence forward so that both he and the defense can see it. There's a lot of mess in this situation, and it comes largely from the police and prosecution side.
But given that we know that there wasn't a lot of evidence to justify what we think anyway in our conviction over murtaphor Kevin. I mean, would there have been any enough evidence even brought forward at that time in February when they're actually looking.
At this at that time. No. And one thing we do know, however, is that multiple witnesses in the case gave up to three different statements. In fact, one witness may have given many more. So clearly, once this had taken place and the judge had been raising doubts, more evidence was sought by the police. And that wasn't physical evidence, it wasn't forensic evidence, it wasn't DNA, It was simply the statements of people who'd already given sworn evidence as statement.
So what you're saying is after February, when they realized they had to gather more evidence, they went back and reinterviewed people had given witness statements.
So other people gave two witness statements.
Yeah, so there was two witness statements. Some witnesses gave three, some even more. And what's concerning about that is in their first statements, given either the day after Linda had been found or in the following days, those witnesses largely say they can't remember what happened, and they say that because they consumed a large amount of alcohol the night Winder died. So how could they be expected to recall five, six, seven months later what they couldn't recall only days after
Winder's death. Nevertheless, the police pressed forward with interviewing those people, and we know they even chased some of them around Queen's and to get those interviews. So there was clearly concern amongst the police and probably from the prosecutor too, that the evidence they had was not going to hold up in court, and the judge had made that very clear in the February.
And now before that you talked about the women also being charged with unlawful killing instead of murder and how that was dropped.
But what is the difference between unlawful killing and murder?
Okay, So in that court case in the February, that's explained, and I'll read from the transcript. The definition of killing is contained in section two ninety three of the Code. It simply reads, it is unlawful to kill any person unless such a person is authorized or justified or excused by law. It goes on to state except as here and after as said, for any person who causes the death of another directly or indirectly by any means whatever
is deemed to have killed that other person. Now, whether you understand the definition of unlawful killing, the difference between unlawful killing and murder in this case, it really doesn't matter, because what we know is what happened next, and that is the judge refused to accept the unlawful killing charge
against the three women. He ruled but not only was there not enough evidence, but that the prosecutor couldn't possibly bring a murder charge later on in the year against another individual having been accused of murdering a woman, Linda, in completely separate circumstances if he intended to charge the three women that day in separate circumstances. So the unlawful killing charge as well as the murder charge against the three women was thrown out.
Because they wouldn't have been able to go ahead with a murder charge against Kevin Henry if the women were being convicted or being charged and then later convicted over unlawful killing. It wouldn't work that way. They'd have to drop the gu charges against Kevin.
Would you say, well.
It sounds like that was the ultimatum that was being delivered to the prosecution. The judge went on for a number of pages. In fact, most of his discussion was done with the prosecutor present, but not even speaking to the prosecutor. The matters of law were discussed amongst the
defense lawyer and the lead barrister and the judge. By this point it was fairly clear from what's written in the statements as what was said in court, that the judge had lost patients with the prosecutor and he was going to work out the matter of law for himself, and much of the assistance for that came from the
defense attorney. So we can tell that the judge really not satisfied with what was going on, and we have to assume that that pressure that was applied that day, the unhappiness on the judge's behalf, was passed on through the prosecutor to the police who'd made the call that day, on the fifth of September, to charge Kevin Henry with murder without it having ever been recommended by the most senior police officer at the Rockhampton Police station.
So the fact that the women were charged originally with murder makes me think that, you know, the potential for the assault to be lethal was obviously something that there was thought by a lot of people at the time.
Yeah, that's right, and it was considered part of the forensic evidence, first in the February and then later on at the full trial of all four in the April, and two forensic experts testified and both would have very interesting things to say about the forensics, the way they were gathered and what conclusions could be drawn. Now we've done our own examination of that forensic evidence, but don't
just take our word for it. Next week we'll speak to an international expert and hear what they have to say about the way the forensics were handled, testified to and what they suggest.
That was episode five of Curtain, a podcast delving into the nineteen ninety one murder of an Aboriginal woman named Linda on the banks of Tanuba or the Fitzroy River in Rockampton, Central Quensland. For now, you can catch up on iTunes by typing in Curtain the Podcast, or go to our website www dot Curtainthepodcast dot com.
Also follow us on Facebook and Twitter at Curtain the Podcast.