Australia: Probe launched into wrongful conviction of Sudanese refugee jailed over Edward Spowart murder

The NSW Director of Public Prosecutions has launched an inquiry into a miscarriage of justice that saw a young Sudanese refugee wrongly convicted of murder.

The family of the young man, who spent almost seven years in prison for a crime they insist he did not commit, say their experience in the justice system has destroyed their faith in the rule of law in Australia.

"What has happened to my nephew is something unbelievable," the refugee's uncle told the ABC. "He's an utterly broken man."

The conviction of the Sudanese boy, known only as JB, was quashed in late April by the NSW Court of Criminal Appeal.

The teenager had been convicted in 2009 of murdering western Sydney man Edward Spowart and sentenced to 23 years in jail.

In submissions to the NSW Supreme Court, the NSW Attorney-General said the Crown prosecutor as well as the prosecuting solicitor, and investigating police had all failed to reveal to the defence that the key witness who implicated JB in the stabbing murder was a registered police informant.

The Crown Prosecutor during JB's trial was experienced barrister Terry Thorpe. However, the court made no findings about who within the prosecution knew about the status of the police informant, when they knew, or exactly what they had been told by police.

The failure to disclose the crucial evidence is now being criticised not just by the young man's family, but also by a retired Supreme Court judge.

The CCA said in its April judgment that JB's trial had miscarried because of "failures of the prosecuting authority".

According to the Attorney-General's submissions, the Crown Prosecutor and his instructing solicitor had met with A107, but notes of that meeting provided to the defence "appear to have been edited" and did not mention that A107 was a police informer.

It is not known who edited the notes, however, the submissions raise questions about who in the prosecution knew about A107's status and why it was not disclosed.

Registered informants receive benefits for their assistance to police and are often given discounted sentences in their own criminal matters.

A spokesperson for the NSW Director of Public Prosecutions Lloyd Babb told the ABC a probe was underway.  "This matter is being reviewed internally and accordingly it is not possible to provide any comment at this stage," the spokesperson said.

The NSW Police are also conducting an internal investigation into its role in the matter. In a statement, the force said: "As a result of the acquittal of JB, NSW Police Force has become aware of the apparent non-disclosure connected with the matter.

"NSW Police Force will have to conduct its own investigation and until such time that is concluded it is not appropriate to make comment on specific issues concerning the matter.

Now, the retired Supreme Court judge who rejected a 2012 appeal by JB against his conviction, Anthony Whealy QC, has spoken out to express his concern, saying that, if substantiated, the failure of disclosure would be a "serious dereliction of duty" on the part of the prosecution. "It's a terrible situation where this man has spent nearly seven years in jail as a consequence of a confession that should never have been allowed into evidence," Mr Whealy said.

Mr Whealy said he would have acquitted JB in 2012 if he had known the key witness was a registered police informant. "I'm quite sure that had we known those facts … the appeal would have taken a completely different course," Mr Whealy said.  "That course would have resulted in the conviction being set aside and more than likely a verdict of acquittal being entered on behalf of this young man who has needlessly spent all these years in jail."

The ABC submitted detailed questions to Mr Thorpe. In response, the Crown prosecutor said he had no comment.

JB was sentenced to 23 years in prison, with a non-parole period of 16 years, for the stabbing murder of Edward Spowart. Mr Spowart, 54, was killed in April 2008 during a fight between two groups of young men in the south western Sydney suburb of Granville.

He was not participating in the fight, in which the two groups of men armed themselves with sticks, bricks and street signs.

He was standing by the side of the road carrying a plastic shopping bag when he was stabbed in the stomach, thigh and trunk.

JB, aged 15 at the time, was initially arrested for affray over the incident.

When police seek to interview juveniles, the child must be supplied with a youth support person. When JB was in custody in April 2008, detectives called in a support person who is now known only as A107.

The man entered JB's cell for a private conversation, and after he emerged he told police that the 15-year-old had confessed to stabbing Spowart.

"It was the key plank in the prosecution's case," Mr Whealy said. "The prosecution relied on it even to the absence of other evidence to convict the young person."

A107 avoided jail on fraud charge after police cooperation

In 2014, defence barristers unearthed sensational fresh evidence which revealed the youth support person A107 was a registered police informant.

At the time, he told police JB had confessed to stabbing Spowart, A107 was himself facing charges of having defrauded victims of $40,000.

Police later swore an affidavit that laid out the assistance A107 had given police in the JB case, among others.

Largely as a result of A107's assistance to police, he avoided jail and received a suspended sentence.

Prominent Sudanese lawyer Deng Adut said he had visited JB in prison in the years before he was acquitted. "He told me clearly that he did not kill that man," Mr Adut said.

"He didn't have a knife. He didn't even have anything in his hand. He had nothing in his hand. He never did anything."

In its April judgment, the CCA ruled that without the evidence of A107 that JB had confessed to stabbing Edward Spowart, the prosecution had insufficient evidence to conduct a retrial.

The judges said the case had been a miscarriage of justice. "The trial of JB miscarried because of failures on the part of the prosecuting authority," the judgement said.

"These consisted of an inadequate investigation of the position of A107 and an inadequate disclosure of that position to the defence. "There was no conduct on the part of JB which contributed to the mistrial."

The trial hinged on the evidence of the police informant. The ABC understands that Merrylands detectives never recovered the murder weapon.

The ABC has been told their investigations ceased after the alleged confession was obtained.

It was also revealed in the CCA that the defence lawyer who was on the record as acting for JB, Robert Kaufmann, was also acting for the police informer A107 in his criminal case.

Mr Kaufmann attended the first day of the trial but afterwards relied on a junior solicitor at his firm to defend JB.

Mr Kaufmann said he was unaware A107 was a registered informant and rejected any conflict of interest. "I reject any suggestion that I acted under a conflict of interest in relation to matters for JB, either before his trial, during his trial or for his initial appeal," Mr Kaufmann said.

Original report here


(And don't forget your ration of Wicked Thoughts for today. Now hosted on Wordpress.  If you cannot access it, go to the MIRROR SITE, where  posts  appear as well as on  the primary site.  I have reposted  the archives (past posts) for Wicked Thoughts  HERE or HERE