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Terrence Kidner, the Palm Islander who testified Lex Wotton ordered him to torch the police residence. The man in the background is a police officer. The court heard Mr Kidner was accompanied to court by two "minders", although he was not in custody. |
LEX WOTTON TRIAL: Jury to retire this morning after warning from Judge about reliability of evidence
ISSUE 164 - 16 Oct 2008
By Chris Graham
IN BRISBANE
NATIONAL, October 23, 2008: The jury presiding over the trial of accused Palm Island rioter Lex Wotton is expected to retire some time this morning, following the completion of a summing up by the judge and a series of warning about the evidence of some witnesses in the trial.
Mr Wotton is charged with rioting with destruction, an offence which carries a term up to life in prison. The uprising followed the November 2004 death in custody of Mulrunji Doomadgee in the Palm Island police station.
Tensions between locals and police boiled over a week after the death when a pathologist's report claimed Mulrunji had been the victim of an accident, and tripped and fallen on a flat surface. He died within an hour of being arrested for 'public nuisance', with four broken ribs and a liver which had been almost “cleaved in two”.
The policeman blamed for the death by the Acting State Coroner was Snr Sgt Chris Hurley, the most senior officer on the island at the time.
The trial of Lex Wotton has been underway for two and a half weeks in the Brisbane District Court, before Judge Michael Shanahan. The defence and prosecution have both closed their cases. Judge Shanahan late yesterday began summing up the evidence, and directing the jury on matters of law.
Judge Shanahan told the jury that there were seven 'elements' to the offence of riot with destruction, and each would need to be proved 'beyond reasonable doubt' in the minds of all the jurors.
The Crown must prove that Mr Wotton was part of a 'riotous assembly' and that he participated in, or encouraged others, to destroy the police station, adjoining courthouse, a police residence and a police vehicle.
He warned the jury that while there “might be some genuine or perceived righteous anger” over the death in custody of Mulrunji, that “is not a defence to a charge of riotous destruction”.
He told the jury the uprising itself, and the trial, had generated significant publicity, but that the jury must reach its verdict based on only on the evidence placed before the court.
Judge Shanahan also delivered a series of warnings to the jury about the testimony of some of the witnesses.
An Aboriginal man from Palm Island, Terrence Kidner gave evidence against Mr Wotton during the trial, claiming that the accused handed him a drum of petrol and ordered him to torch Snr Sgt Chris Hurley's police residence.
Judge Shanahan warned the jury that they needed to assess Mr Kidner's evidence “with great care” because the jury may decide that Mr Kidner had sufficient motivation to lie in his testimony.
Mr Kidner served 10 months of a four year prison sentence after pleading guilty to torching the residence. Judge Shanahan noted that Mr Kidner was an “accomplice” to the crime, and he warned the jury they needed to consider whether Mr Kidner had lied to lessen his role in the uprising, and receive a lighter sentence.
He told the jury Mr Kidner was “likely to be a person of bad character” given his role in the offence and he also drew their attention to Mr Kidner's perceived level of intelligence, and his difficulties with the English language (through his evidence, Mr Kidner was very difficult to understand).
Judge Shanahan also told the jury they needed to use their common-sense judgement in weighing up the evidence of Tiana Friday, another Aboriginal Palm Islander who testified at the trial.
Ms Friday gave evidence to the court that she was “confused” when she gave a statement to police that during the uprising, she heard “Uncle Lex” call for someone to get a fresh drum of petrol.
“After they set fire to the police station, I heard Uncle Lex say that one of the petrol drums was empty and that someone should get the other one,” the court heard.
But during the trial it emerged that Ms Friday, aged 22 at the time and four months pregnant, was detained by police for an entire day in her nightgown, with no underwear on. She was given no food, not even “a cup of tea”, escorted by police to various houses on Palm Island, which were “tipped up” by police while Ms Friday watched. She told the court her cousin was unnecessarily man-handled by police, and that by the end of her ordeal she was so scared of police she would have “said anything” to escape their custody.
Judge Shanahan told the jury it was a matter for them what they made of Ms Friday's evidence, whether they believed she had a motive to lie, or whether they believed her evidence was affected by her treatment at the hands of police.
Judge Shanahan also warned the jury that the evidence of Joelene O'Neill, a third Aboriginal Palm Island resident, should be weighed up with care.
Ms O'Neill told the court that as the uprising began, she saw Mr Wotton walking towards the police station carrying a red petrol drum. She estimated she was about a “half a football field” in distance away at the time. She told the court she gave her statement to police some four months after the uprising.
But under cross examination, it emerged Ms O'Neill was much further away than stated, and that she could only have seen the person for a very short period of time as the person came into her sight crossing a very narrow laneway.
Judge Shanahan told the jury there was a “special need for caution when relying on identification evidence”.
“It's quite possible for an honest witness to be mistaken,” Judge Shanahan said, adding that miscarriages of justice had occurred while relying on identification evidence.
He warned the jury to consider factors such as the time of day, the relevant distances involved and the length of time over which the identification occurred. The jury needed to satisfy itself that Ms O'Neill was both “honest” and “accurate”, he said.
Judge Shanahan's summing up is expected to continue for another hour this morning, before the jury will be retired to consider their verdict.
• NIT will bring you details of the verdict as it happens, in addition to an update of the remainder of Judge Shanahan's summation.
 
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