Over a period of just five months in 1990 and 1991 three Aboriginal children went missing from the small coastal town of Bowraville, New South Wales. Two bodies were found. The clothes of the third child were recovered from a river. But 20 years had passed without a conviction when their families contacted legal researchers at the University of Technology Sydney (UTS).
Two decades after their loss the families sought the researchers’ help to revive official and public interest in a case many believed was a miscarriage of justice tainted by racism.
“Due to a series of errors in the police investigation that were partially created because there was such a bad relationship historically between the police and Aboriginal communities, those murders were never solved,” says Distinguished Professor Larissa Behrendt, Director of the Jumbunna Institute for Indigenous Education and Research. “The evidence wasn’t collected properly and so it has been incredibly difficult to bring justice to the families.”
Coinciding with the Royal Commission into Aboriginal Deaths in Custody, the Bowraville case highlighted how police could readily pursue First Nations people for minor infractions but be less than diligent when Aboriginal people were the victims of crime, she says.
In the decade since a first, small meeting with the families, Professor Behrendt and a team of legal and First Nations researchers at Jumbunna have supported them in an ongoing campaign that has produced a documentary giving ‘voice’ to the families, a parliamentary inquiry which found the original investigation had failed, and research backing calls for changes to rules around ‘double jeopardy’, which make it almost impossible for someone to be tried twice for the same offence.
Their own words
The 2014 documentary Innocence Betrayed was produced by Jumbunna and directed by Professor Behrendt, in collaboration with the families. It was the centrepiece of a sophisticated legal, lobbying and media campaign to have the murders brought back to court. The film was broadcast nationally and remains available to download.
“We worked incredibly collaboratively with [the families] in how they wanted their story told,” Professor Behrendt says. “That became the thing people responded to … their passion. We can make lots of eloquent arguments about what went wrong with the police investigation, what went wrong with the court system … but I guess there's nothing that will get the hearts and minds as much as a parent talking about what it feels like to lose a child in those circumstances and to not have justice for it.”
A NSW parliamentary inquiry was held that same year – the first time such an inquiry has considered a specific crime. It began by viewing the documentary and meeting with the Jumbunna team to discuss the best way to take evidence from First Nations witnesses, an area of research Jumbunna had focused on since becoming involved with the case.
Members of the Jumbunna team, which included barrister Craig Longman, also worked with family and community members to ensure they could make written submissions in their own words.
The researchers’ own 184-page submission made 14 recommendations, including submissions on police processes and training, cultural awareness training for the legal profession, a review of jury directions, a review of the law of double jeopardy and strategies to address the impact on First Nations victims of crime.
The inquiry adopted all its recommendations and the report was supported unanimously by the state parliament’s Upper House. “That, in and of itself, was significant for the families, to finally be heard,” Professor Behrendt says.
Jumbunna subsequently developed a training package for NSW Police on working with First Nations witnesses and victims of crime.
The fight continues
Jumbunna also used its research – into double jeopardy, the concept of ‘fresh evidence’, and appropriate dealing with Aboriginal witnesses, among other things – to draft an application for a retrial of the suspect who had earlier been acquitted over the deaths of Clinton and Colleen. It was the third time an application had been made for a higher court to review the case but the first to be granted.
The fight for justice continues, however, after the NSW Court of Criminal Appeal ruled in 2018 there wasn’t enough ‘fresh and compelling’ evidence to justify overturning the two earlier acquittals and order a single retrial for three murder charges. The High Court later refused special leave to appeal that decision.
Then in 2019 the NSW Government stepped away from changes to the double jeopardy rules proposed in a bill put forward by Greens MP David Shoebridge. “This was incredibly frustrating to the families because the earlier parliamentary inquiry had recommended a change to the legislation,” Professor Behrendt says.
But, three decades on from their children’s loss, the families continue to show their determination, working with Jumbunna to lobby for legislative change and exploring other ways forward – including a coronial inquest. The fight is not only for justice for the children but also for enduring change in the police and justice system.
Resources
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listen to Professor Behrendt and members of the Jumbunna team talk more about their work on episode 6 of the Impact at UTS podcast
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download the film, Innocence Betrayed
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Professor Behrendt also directed the 2017 film After the Apology, which addresses the continued removal of First Nations children from their families
DOWNLOAD The final report of the 2014 parliamentary inquiry (incorporating Jumbunna’s submissions)
New South Wales. Parliament. Legislative Council. Standing Committee on Law and Justice, author, issuing body. & Clarke, David. 2014, The family response to the murders in Bowraville (PDF, 192 pages) / Legislative Council, Standing Committee on Law and Justice Legislative Council, Standing Committee on Law and Justice [Sydney, New South Wales].
Research team
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Director, Research and Academic Programs, Jumbunna Institute for Indigenous Education and Research -
Deputy Director and Senior Researcher, Jumbunna Institute for Indigenous Education and Research
