The case involved an Aboriginal man from the remote western desert community of Kiwirrkurra in Western Australia. The victim was a young white man, Josh Warneke, tragically bashed to death, his body left on the outskirts of Broome. Witnesses placed the accused, Gene Gibson, at the scene. There was other persuasively inculpating evidence. He made some admissions to police, although they were later excluded from the evidence. Did the criminal justice system have the right man?
As is commonly the case in remote Aboriginal communities, English was not Gibson’s first language. For some Aboriginal people, English is sometimes not a second but a third language. Gibson thus required an interpreter. To aggravate things, he had what was described to the court as a cognitive mental impairment.
With a mounting case against him, and witnesses saying he’d killed “that white fellow” (statements later recanted), Gibson pleaded guilty to manslaughter after the original murder charge was withdrawn. He did so, he said, while maintaining his innocence to his lawyer. It is a cardinal rule of criminal law that if one’s client maintains his or her innocence a guilty plea cannot be entered, but Gibson’s lawyer in his evidence placed a different interpretation on events. In the end, however, Gibson pleaded guilty – he said to get “little time” not “big time” – a reference to his likely sentence length.
His lawyer, in giving evidence, told of pressure from the court to expedite proceedings, to accept the plea while it was available to his client. He also said he felt unsettled by the competence of the interpreter, and appeared to lack confidence that all he was saying was being accurately conveyed – a red flag warning for lawyers. The interpreter, predictably, gave an alternate version in his evidence.
Following his guilty plea, Gibson was sentenced to seven-and-a-half years imprisonment for manslaughter. Seemingly, that was the end of the matter. But it wasn’t.
It is unusual to appeal following a plea of guilty but the Gibson case recently made its way to the WA Court of Appeal and the evidence referred to above was part of what it heard. Reading the daily reports of the evidence in the appeal, one had an unsettling sense that things had gone awry in Gibson’s original hearing. The appellant said he didn’t understand what was going on – a common complaint of Aboriginal people who are involved in the criminal justice system.
In a unanimous decision, the Court of Appeal allowed Gibson’s appeal and he walked from prison a free man, having already served, however, four-and-a-half years of his sentence. The evidence at its best could not prove his guilt beyond reasonable doubt.
The case has lessons beyond itself and the tragic death of Josh Warneke, a young man who was a victim of senseless violence.
Cases such as Gibson’s tell us that if governments invest in the justice system, mistakes and injustices can be better avoided.
When we have disturbingly high levels of imprisonment of Aboriginal and Torres Strait Islander people, the Gibson appeal helps us understand why that is so. It tells of courts and lawyers under constant pressure, accused people for whom criminal proceedings happen so quickly they lack adequate understanding about what’s going on, and all being conducted in a language foreign to them. The lessons go beyond the experience of Aboriginal people before the courts, although, for them, in some jurisdictions there are alternatives. The Koori Court in Victoria is an example, but governments need to invest in such courts and the criminal justice system more broadly if we want to have timely but fair justice. Many people for whom English is a first language would struggle to understand exactly what is transpiring before a court.
In the Koori Court proceedings are dramatically slowed down, Aboriginal Elders are present to explain proceedings to the accused, and only when the court is satisfied of the accused’s full and proper understanding of the sentencing process are proceedings concluded. Sentences are no lighter, but recidivism rates are dramatically reduced. Frankly, many non-Aboriginal offenders would benefit from the same approach, however it costs governments money to support such endeavours.
Gibson was initially represented by an Aboriginal legal aid organisation – the Aboriginal Legal Service. Without legal aid he presumably would not have had a lawyer. It is interesting, however, that The West Australian newspaper some months ago, when legal aid was granted to an accused person to appeal their conviction, labelled it “evil aid”, as did Sydney’s Daily Telegraph a few weeks ago, obviously parroting the tabloid media line. Such headlines may sell newspapers, but the Gibson case illustrates how important it is for a person before the court to have good legal representation, demonstrated by his lawyers on the appeal. Without legal representation, how many innocent people would still be in jail? Why would we ever deny legal aid for an appeal that is found to have merit?
Last week the Federal Government announced a reversal of its intended $35 million cuts to the community legal sector and legal aid budget, instead promising $55.7 million in new funding. Crucially, $16.7 million is earmarked for Aboriginal and Torrens Strait Islander legal services. The remaining $39 million will go to community legal centres and focus on combatting domestic violence and helping distressed women and children. This turnaround happened after much lobbying by the sector and the Law Council of Australia. The LCA lobbied so that people like Gibson could be legally represented, as well as a huge number of people appearing in our family law courts. However, a decision not to cut funding does not arrest the constantly falling investment in the legal sector, unless our impending Federal Budget contains a pleasant surprise.
Cases such as Gibson’s tell us that if governments invest in the justice system, mistakes and injustices can be better avoided. Economically, investing in the front end will not only result in jobs, it will avoid greater costs at the back end, including the crippling cost of imprisoning people.
The Gibson case is telling in so many ways. For those up close and personal with the system it has a depressingly familiar ring to it. Similar matters play themselves out in many courts across our land every day. It shows so plainly the shortcomings in our justice system. It illustrates very clearly what could be done to improve that system, yet the judgement was handed down amid an ongoing and seemingly endless argument with our Federal Government about preserving what little funding to the legal sector still exists.
Ultimately the case is about how precious justice is, how vital it is to have a lawyer prepared to argue to the ends of the Earth for you, and the importance of our courts in getting to the truth.
There ought to be no argument when it comes to properly resourcing our third arm of government – our treasured system of justice.
Morry Bailes is the managing partner at Tindall Gask Bentley Lawyers, president-elect of the Law Council of Australia and is a past president of the Law Society of SA. The opinions expressed in this column are his own.
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