The first trial in a century of a WA police officer for killing an Aboriginal person ended in an acquittal, from a jury without a single Black juror. By Jesse Noakes.
‘A cop can shoot a person in cold blood and get away with it…’
Bernadette Clarke is going home. After three weeks living with her family in a Perth hotel room, she and her three children are on the road north through the hills to their house in Northam.
“Going home, my babies, we’re going home,” Bernadette says to the kids over her shoulder. “Stronger and wiser, this made me. They tried to break us, but they can’t. They only brought us closer together.”
Two days earlier, the police officer charged with murdering Bernadette’s sister was found not guilty. Yamatji woman JC, as the family wish her to be identified for cultural reasons, was shot dead on a quiet suburban street in Geraldton in the early evening of September 17, 2019. The police officer who shot her became the first serving officer to be charged with murder in Western Australia since the Forrest River massacre in 1926.
Every day for three weeks, Bernadette, her cousin, Bonnie, and other family, sat at the back of the court observing the process in front of them.
On occasion Bernadette left the courtroom when the details became too distressing or overwhelming. Otherwise, she sat scrutinising proceedings all day, surveying the demeanour and reactions of individual jurors.
“I need to see this,” she said. “Over two years we’ve been waiting for answers, and now we finally get to find out what happened that night. Answers, that’s all we want. Answers – and justice.”
The first trial in Western Australia in almost a century of a police officer for killing an Aboriginal person began on October 4 with a robed “clerk of the reins” reaching into a polished wooden box to pull out numbers corresponding to a group of potential jurors clustered at the back of court.
It ended in anguished, heart-rending scenes late on a Friday afternoon outside the District Court in Perth, as the family responded to the not guilty verdict delivered after two hours deliberation by a jury without a single Aboriginal or Black person on it.
“I’m disgusted in this state of Western Australia,” Bernadette told the media blocking the steps outside the court. “My ancestors are disgusted … The man shot her at point blank. Left the family broken. How long is this gonna go on for?”
“It’ll go on forever,” came the response from a Bibbulmun Elder waiting beyond the press pack. “Use that blackfella law. You fellas have got it in Meekatharra. Do it, do it,” she continued in a desperate cry. “You can do it. I know you can.”
Bernadette agreed from the steps. “White man need to understand that black man law came before white man law. A killer walked free today. What do we do? What do we do?”
Anne Jones, JC’s foster mother, said afterwards that the verdict was devastating for her family. “I heard the verdict in court, and I was in disbelief and shocked initially, that this cop killer had been acquitted for the murder of my girl. This disbelief and shock soon turned into resentment, anger and rage.”
JC’s young son attended court on the day of the verdict into his mother’s death. “Caesar now grows up without knowing the love of his beautiful mum,” said Jones. “Our hearts weep.”
Megan Krakouer is director of the National Suicide Prevention and Trauma Recovery Project and has been supporting the family since JC’s death. “The family is devastated,” she said. “They expected justice and were betrayed in a widespread public spectacle where their loved one was character assassinated and her memory defamed. The officer was last to arrive and first to shoot, to the surprise and shock of some of his colleagues.”
The trial heard from almost 60 witnesses called by the state, and finally from two defence witnesses including the accused, who cannot be named because of an ongoing suppression order.
The evidence presented was in parts uncontroversial. JC was a woman who “wasn’t doing so well at navigating her life,” in the words of lead prosecutor Amanda Forrester. JC was released from prison in Perth less than a month before her death, and had been discharged as a mental health inpatient just one week prior. The court was told JC had suspected foetal alcohol spectrum disorder and was diagnosed with schizophrenia. She used drugs that may have exacerbated her mental health troubles.
JC was homeless and on the afternoon of the shooting expressed a desire to get back to the town where her foster mother and son lived, about an hour away. That afternoon, she visited other family members in Geraldton, who recalled that she seemed distressed and more agitated than usual. She repeatedly predicted she would die that day and eventually her family became so concerned for her that they called the police to perform a welfare check.
A call came through from a nearby street describing someone carrying a large bread knife in one hand and a small pair of scissors in the other. “Yep, it’s JC,” came the confirmation over the police dispatch shortly after. Four squad cars were sent. The accused was the third officer at the scene.
One officer, who knew JC from previous interactions, approached her unarmed from the side. “I find weapons are a barrier to communication,” he would later explain in court. Another drew a taser but did not arm it. The accused pulled his gun as he exited his car and within 16 seconds he had fatally shot JC in the abdomen.
The circumstances in the few seconds immediately preceding that action were the primary subject of the 15-day trial. The accused maintained he fired his gun because JC had raised her arms and leaned towards him from several metres distance. Some witnesses supported this version, including a former South African infantry soldier who had pulled up on a verge outside another house and testified that JC “lunged” before she was shot.
Others who were there, including several police officers called as witnesses, did not see JC move. Nor did CCTV footage of the incident – shot from several houses down and a key part of the prosecution case – show any movement from JC towards the officer before he shot her.
When this footage was first played in court, during the prosecution’s opening, it was preceded by a cursory warning about the potentially distressing nature of the footage. Bernadette, who had been briefed in advance, immediately left the courtroom. Other family members stayed.
The moment the tiny figure on the screen hit the ground there were sobs of distress followed by angry voices from the back of court. A dozen family members left the courtroom, some gesticulating or calling to the accused as they exited. The trial was immediately aborted and started again with a fresh jury the following day. From then on, there was extensive and solicitous emphasis on the distressing nature of certain evidence from both the prosecution and the judge.
The defence’s opening address stressed that, unlike in cases overseas, such as the police murder of George Floyd in Minneapolis last year, “the colour of her skin” was not a factor in JC’s death. Race was not mentioned again during the trial.
I watched part of the defence’s opening from a spillover courtroom at the WA Supreme Court. Young children, JC’s nieces and nephews, sat mainly silent with the odd interjection shushed by adults. An older girl gave a younger cousin a drink from a two-litre orange juice and asked her to sit down just as the defence case culminated with the words: “She needed to be taken down.”
At this comment, JC’s family picked up their things and left the courtroom in disgust. Shortly before they did, I heard a comment that would be repeated regularly throughout the trial: “That jury is all white. There’s not a single Aboriginal person on it.”
The accused’s testimony – that he acted only in self-defence for fear of “being stabbed” – was summed up during his barrister’s opening address: “You don’t bring fists to a knife fight. You bring a gun to a knife fight.”
As prosecutor Amanda Forrester later responded, the defence was trying to argue the response was proportionate. “But he didn’t bring one gun. He had his own and seven others. Eight tasers. Skill and training and four cars. Decades of experience. All to contain one woman with a knife. And there was no knife fight.”
The jury was told that a police officer is entitled to use any force as long as it is reasonably necessary in order to effect an arrest, or to overcome resistance to an arrest. The prosecution countered that “it was never reasonably necessary to shoot [JC] in the abdomen to achieve the outcome”.
“Of course, she should have dropped the knife,” Forrester accepted. “But you can’t shoot a person because they won’t do what you tell them. That word ‘reasonably’ means something.”
Dr Hannah McGlade is a Noongar human rights lawyer and associate professor at Curtin University. She condemned the verdict. “Australia must stop this violence to Aboriginal women,” she said. “This is Indigenous femicide and the state is failing in its duty to prevent, respond and punish the perpetrators. Racism in the legal system stands in the way of justice for our people and must be confronted.”
Apryl Day, who lost her mother Tanya Day in police custody in 2017, sparking a high-profile coronial inquest and a successful campaign by her family for legislative change, supported JC’s family through the trial. “What we know is that family-led advocacy and campaigns are the most effective in implementing change and law reform,” she told The Saturday Paper after the verdict. “JC’s family have experienced tremendous grief but have remained staunch throughout it all. Sadly, this isn’t the end for the family’s fight for justice, only the beginning.”
On Thursday, October 28, the family and their supporters led a series of marches in cities across Australia, in protest at the verdict. Anne Jones insists that her family will continue to fight for justice and accountability. “This decision clearly sends a message right across the nation that police are protected by the system, which fails our brothers and sisters nationwide. It further sends a message that a cop can shoot a person in cold blood and get away with it. This is a cruel, heartless system for our people.”
Western Australian Greens senator, Dorinda Cox, a Yamajti Noongar woman, described JC’s death as preventable. “The system failed her, like it has for many other Aboriginal people.”
She said, “It has been 30 years since the Royal Commission into [Aboriginal] Deaths in Custody recommendations were handed down and yet very few have been implemented. Nearly 500 people nationally have died and not a single individual has been convicted of a crime. The systemic racism in our courts, our police, our healthcare and our education needs to stop.”
The family is calling for a raft of measures to address systemic and structural racism in the justice system, including jury bias and representation. Following this verdict, they also want independent investigations into all deaths in custody, without the involvement of police as investigators.
Bernadette describes her sister as a “good girl” who just needed help. “She needed help from mental health and from the government when she was taken away from her mother.”
Bernadette is also focused on racism in the health system, especially the mental health system, to ensure cultural safety for Aboriginal people. She supports the establishment of Aboriginal healing centres, disability support services and family violence services to guarantee a holistic community response that mitigates police involvement.
For now, though, Bernadette needs a rest. The morning after the verdict she’s at a Perth park with her family, watching her son snap goals from the forward pocket with a tiny Eagles Aussie rules football.
“I’ve got a voice now,” she says. “And I’m going to use it.”
Bernadette intends to be an Aboriginal activist. “I wanted to be a lawyer, but I’m over that now.” She plans to finish her training and become a teacher. She looks over at her daughter, now five years old. “We’re going to stop the cycle, aren’t we, my baby?”
This article was first published in the print edition of The Saturday Paper on October 30, 2021 as "‘A cop can shoot a person in cold blood and get away with it…’".
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