By Sonia Hickey and Ugur Nedim
A cognitively-impaired Indigenous man who spent nearly five years in a Western Australian prison for a crime he didn’t commit has received compensation.
The Western Australian government has provided a cognitively-impaired Indigenous man with an ex gratia payment of $1.5 million after he spent almost five years in prison for a crime he did not commit.
26-year old Gene Gibson, who is from the remote WA community of Kiwirrkurra, walked free last year after appealing his manslaughter conviction. His defence lawyers say that although their client is happy with the voluntary payment, he may still sue the government over the botched investigation and imprisonment.
WA Attorney-General Mr Quigley offered his apologies to Mr Gibson on behalf of the state, conceding he unjustifiably endured terrible suffering after a series of errors by police and prosecutors.
Mr Gibson was sentenced in 2014 to seven-and-a-half years in prison for the killing of 21-year old Josh Warneke, who was found unconscious on the side of Old Broome Road, Broome in the early hours of 26 February 2010.
At the original trial, Mr Gibson was accused of being heavily intoxicated while driving a stolen car when he encountered Warneke, who was walking home from a Broome nightclub. Prosecutors alleged that Gibosn stopped the car, got out and struck Mr Warneke on the head with a metal pole.
But Mr Gibson — who speaks limited English and whose first language is the traditional desert language of Pintupi — had made it clear to police that did not understand what was being put to him during his numerous interviews.
He was originally charged with murder, but the charge was reduced to manslaughter when a series of police interviews, conducted without an interpreter, were deemed inadmissible. Mr Gibson then pleaded guilty to manslaughter, but it later became apparent that the interpreter he was provided was not able to communicate effectively in Gibson’s language.
On appeal, Mr Gibson’s lawyers submitted that mental impairment compounded by language barriers meant his client did not enter his guilty plea voluntarily. It was further pointed out that Gibson was advised to plead guilty after being implicated by two witnesses, both of which later recanted their evidence.
An investigation by the Corruption and Crime Commission (CCC) into the death of Mr Warneke exposed “systemic failures” with the way Indigenous people are being dealt with by police.
It found that Mr Gibson was not afforded his right to a lawyer until late in the interview process, and was not initially informed of his right to silence or the fact that answers he gave could be used in evidence.
The CCC report focused in particular on what it called a “series of flawed police interviews” with Mr Gibson in 2012, saying detectives ignored local officers’ advice to arrange an interpreter and re-do the interviews.
While Western Australian police have increased their use of interpreters for both the accused and witnesses since their encounter with Gibson, they are also considering using the Northern Territory model for cautioning someone about their right to silence when English is not their first language.
This involves pre-recording the caution in a variety of Aboriginal languages and playing the correct dialect before an interview.
Indigenous Australians face discrimination at every level
Mr Gibson’s case is only one of scores of similar stories of indigenous Australians behind bars.
A 2017 report by the Chief Justice of WA, Wayne Martin AC, found that the national rate of Indigenous imprisonment is now almost double what it was in 1991, when the Royal Commission into Aboriginal Deaths in Custody made more than 300 recommendations primarily aimed at reducing the number of Indigenous people in custody.
The report cited research by consulting firm PriceWaterhouseCoopers which suggested that Indigenous men are imprisoned at 11 times the rate of the general population, Indigenous women at 15 times the rate and Indigenous youth at 25 times the rate of non-Indigenous youth.
The report found that Indigenous people fare worse than non-Aboriginal people at every stage of the criminal justice process, stating:
“They are much more likely to be questioned by police than non-Aboriginal people. They are more likely to be arrested rather than proceeded against by summons. If they are arrested, Aboriginal people are much more likely to be remanded in custody than given bail. Aboriginal people are much more likely to plead guilty than go to trial, and if they go to trial, they are much more likely to be convicted. If Aboriginal people are convicted, they are much more likely to be imprisoned than non-Aboriginal people, and at the end of their term of imprisonment they are much less likely to get parole than non-Aboriginal people, drawing the conclusion that Aboriginal people are significantly disadvantaged within our criminal justice system in almost every aspect of that system’s operation.”
It seems there is a long way to go before Indigenous Australians achieve anything resembling equality within the curren legal system.