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An Aboriginal man has spent the past 25 years in jail for a murder he says he did not commit, his only link to the crime a dubious 1991 confession. By Amy McQuire.

Pardon call over ‘flawed’ Kevin Henry murder case

For the past 25 years, an Aboriginal man in Rockhampton, central Queensland, has been serving time for a murder he says he did not commit.

Kevin Henry, or Curtain, as he is more commonly known, was 21 when he was accused of raping and murdering an Aboriginal woman named Lynda. He pleaded not guilty in court but was convicted of the crime a year later. He has spent the past quarter of a century stuck in the mundanity of prison life as the world moves on around him.

The Fitzroy River is one of the largest catchments on the east coast of Australia. Last week it was swollen and breaking its banks, as floodwater from the northern rivers released the aftermath of the catastrophic cyclone Debbie.

As time passes, still some things remain the same. In 1991, the river town was recovering from its first major flood since 1954, as it forced the remnants of another cyclone through to the open ocean. The disaster, though, was not the only turbulent event of the year.

On the morning of September 1, two fishermen were on the river when they saw the naked body of a woman on the northern bank, two kilometres down from the centre of town.

One fisherman got off his boat and sank deep into the bank. Beside the woman, there was a 150-metre line carved into the mud, a crude map that showed she had travelled straight down the bank as the high tide of the night before lowered. The woman would later be identified as Lynda, and for cultural reasons we cannot print her full name. 

She was a 36-year-old Aboriginal mother of four, educated and accomplished, who was in Rockhampton because her non-Indigenous husband, from whom she was separated, was working as a university lecturer. She had been missing for eight days, but her estranged husband had not filed a report. Lynda had a history of mental illness and was being treated for schizophrenia. 

Her background is one of trauma: her brother had died violently in custody, becoming one of the most high-profile cases of the Royal Commission into Aboriginal Deaths in Custody. When the commission’s report was handed down a year later, her brother received no justice. 

The night before she was found, Lynda had been brutally assaulted at an alcohol and drug rehabilitation centre called Toonooba House. The building, which was formerly the city morgue, sits on the southern banks of the river, opposite where Lynda was found. It now houses the coast guard. 

Toonooba House co-ordinator and Aboriginal elder Aunty Judy Tatow told me that in 1991 Aboriginal people with nowhere else to go would sleep on mattresses underneath the house, in full view of the Fitzroy River. It had become a sanctuary from over-zealous police, known for their brutality towards Aboriginal people on the riverbank, as well as white vigilantes who would target young Aboriginal women. 

That night, though, it was not a sanctuary for Lynda. Shortly after she arrived, she was targeted by three women, who would later be convicted of grievous bodily harm and handed sentences of three to four years in prison. 

The assault was violent and sustained. It stopped and started over the course of an hour, and left Lynda with severe trauma and bleeding to her head, body and perineum, where one of the women had inserted an unknown object. 

Martin Hodgson, a senior advocate for the Foreign Prisoners Support Service, who has been investigating this case for more than a year, says new forensic analysis of Lynda’s injuries show it was very likely she could have died of her injuries, before she was placed in the river. While her official cause of death was ruled as drowning, Hodgson said the finding was too simplistic. 

A number of people – up to 35 – witnessed the assault on Lynda that night. Kevin Henry played no role in the assault. In fact, some witnesses say he tried to stop it. What happened after is as murky as the Fitzroy. 

This is the version of events police allege. After Lynda was assaulted, police claimed Kevin Henry dragged her, unseen, to an area close to the house, where he allegedly sexually assaulted her and then placed her body in the river, where she drowned. 

But there are several problems with this version of events, Hodgson says. 

“First of all, there was no DNA evidence found connecting Kevin to the crime,” he tells The Saturday Paper

“There was none of Lynda’s blood found on his body, or his clothing, and none of her DNA found on him. He was picked up the next day, in the same clothes he had been wearing, and he had no blood or mud on his clothes. The banks were incredibly muddy, and Lynda was bleeding after the assault. And yet there was no DNA found at all on either of them. 

“Then there was the fact Lynda was found on the other side of the river. Historical tidal records show it was a strong, high tide that night – and it was virtually impossible that a person could have crossed the river. The fact there was a long vertical line found next to her body shows the direction her body travelled in, and it wasn’t horizontal. 

“To have committed this crime, Kevin would have needed to have taken the body to the other side, and he would have needed a car, which he didn’t have. He was in his early 20s, and like most Aboriginal people on the riverbank at that time, he didn’t have access to one.”

Adding to that, Kevin Henry had an alibi. “He was at the Crown Hotel, a short walk up the river, with a big group of people from Toonooba House at the time the crime would have occurred,” Hodgson says. 

“The only thing that convicts Kevin Henry is his confession.”

 During police questioning, Henry was refused legal assistance twice, and the tape was stopped three times during the recording. A large portion of the confession was thrown out at trial by the judge, who determined it had not been obtained “voluntarily”.

Henry was also illiterate. He had reached only year 9 at school, and he may have still been intoxicated when it was recorded. Henry had himself come from a background of trauma. He had not grown up with his mother or father, and had been fostered by another Aboriginal couple, who died in a car accident when he was a child. Despite this, Henry had been in regular employment, and had been in Rockhampton for only a short time, from his home in the nearby Aboriginal community of Woorabinda, when he was picked up off the streets and charged with Lynda’s murder. 

One person who believes Henry was forced to confess is his cousin – Douglas Graham. Graham remembers police showing him a grainy video recording when he went to the station to inquire about Henry. His version of events is consistent with the transcript of the confession, seen by The Saturday Paper

“His mannerisms just didn’t seem right to me,” Graham says. “Nothing seemed right … One part, they were saying, ‘Did you do it, did you do it?’ And he was saying, ‘Well, okay then.’ I thought to myself, ‘No, hang on a minute, that’s not a confession. It’s like I’ve had enough of you having a go at me on this.’ ” Graham said Henry seemed “drowsy from sleep”, or was still intoxicated in the video. 

Back in 1991, around the time of the Fitzgerald inquiry into police corruption in Queensland, Graham says police brutality was a common story, and he himself had been hit with a telephone book while in the watch house. 

Norman Ross, an Aboriginal man who spent time in prison with Henry, tells me police were well known for their brutality against Indigenous people, including against him and family. 

“Coppers can get away with anything, and they are still doing it today. They are still harassing Murri people,” he says. 

Ross maintains his own innocence after he was sentenced to six years in prison for another crime, saying he was forced to sign a statement. 

“When I was in the watch house, I asked for lawyers, I asked to speak to Legal Aid. They never got that for me … [It was] just like Kevin. Kevin is not a murderer. There’s no way in the world.” 

Kevin Henry’s aunty, Arwa Warterton, agrees. “Growing up he was a very loving boy,” she says. “Very respectful. He would never ever disrespect any of his elders. That’s the way I know Kevin, and that’s his nature … Kevin would never ever hurt a fly.”

Warterton says it’s time her nephew was released. “He’s been locked up for 25 years … but when he gets released, he will go back to his country. And he will come out a better man and put his head up for his mum and dad and say, ‘I didn’t do that.’ I want people to know that: he is innocent. He didn’t do it.”

The enduring question is this: If Kevin Henry didn’t do it, if he did not put Lynda’s body in the river as was suggested, who did? 

After police charged Henry and the women, investigating detectives closed their investigation and did not follow up any other leads, despite witnesses pointing to other possible perpetrators. 

“The police investigation was completely botched,” Hodgson says. “Simply speaking, once they decided Kevin was the perpetrator, they stopped investigating, despite obvious flaws in the case.”

Hodgson believes he is getting closer to finding answers to what happened that night, and they revolve around a witness statement given almost a decade ago, which was buried in the files of the Aboriginal and Torres Strait Islander Legal Service in Brisbane, and Griffith University’s Innocence Project, which did not act on it. 

The statement, obtained by Hodgson and seen by The Saturday Paper, paints a different picture of the events of that night. While some facts are the same – the witness describes an assault on Lynda, and her time line corroborates with other witness statements – it is what she says happened after the assault that is groundbreaking. The woman says she was in a car that transported Lynda’s body to the other side of the river, a version of events consistent with tidal records. 

The statement absolves Kevin Henry, who other witnesses say was asleep under Toonooba House that night. 

Hodgson says the witness’s statement corroborates other facts he has uncovered about the case, including some from witnesses who are still alive today. 

“It proves what we now know: Kevin Henry is innocent, and he has been locked up for 25 years for a crime he didn’t commit. If Kevin is released, he will likely be the country’s longest-serving exoneration.”

Hodgson is calling on the Queensland government to pardon Henry. 

Sitting on the banks of the Fitzroy River, Douglas Graham says there needs to be justice, not just for Kevin Henry, but also for Lynda, who can still be felt on the river. 

“If you look back in the history of this country, from colonisation, there were massacres around this river and this district. There have been murders up and down this river that are still unsolved. There are families that are still grieving…” he says.

“Some days you can sit down here and feel the sadness. You can still hear them crying out.”

This article was first published in the print edition of The Saturday Paper on Apr 15, 2017 as "Pardon call over ‘flawed’ murder case". Subscribe here.

Amy McQuire
is a Darumbal/South Sea Islander journalist.

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