Miscarriage of Justice in Western Australia: The Case of Gene Gibson

Tamara Tulich, Harry Blagg, Ava Hill-De Monchaux

Abstract


On 12 April 2017, the Western Australian Court of Appeal overturned the conviction of Gene Gibson, a young Aboriginal man who had spent nearly 5 years in prison after pleading guilty to the manslaughter of Joshua Warneke. The Court of Appeal quashed Mr Gibson’s manslaughter conviction on the basis that he suffered a miscarriage of justice, as he did not have the language skills or cognitive ability to understand the legal process. This article outlines the systemic failings of the Western Australian justice system highlighted by this case in responding to Aboriginal peoples and, in particular, Aboriginal persons suspected of having some form of cognitive impairment. We argue that the reforms instigated by WA Police in response to this case, while welcome changes, will not, of themselves, resolve many of the underlying problems that led to this miscarriage of justice. These reforms need to be accompanied by changes to Western Australia’s mentally impaired accused regime and must, we argue, be developed within a broader paradigm shift that strengthens community justice mechanisms and ensures greater partnership with Aboriginal people.  


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References


REFERENCE LIST

A Articles / Books / Reports

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Australian Human Rights Commission, Equal Before the Law: Towards Disability Justice Strategies (Report, Australian Human Rights Commission, February 2014)

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Blagg, Harry, Tamara Tulich and Zoe Bush, ‘Indefinite Detention meets Colonial Dispossession: Indigenous Youths with Foetal Alcohol Spectrum Disorders in a White Settler Justice System,’ (2017) 26(3) Social and Legal Studies (forthcoming)

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B Cases

Eastman v The Queen (2000) 203 CLR 1

Kesavarajah (1994) 181 CLR 230

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Njana (1998) 99 A Crim R 273

R v Butler [No 1] (1991) 102 FLR 341;

State of Western Australia v BB (A Child) [2015] WACC 2

State of Western Australia v Gibson [2014] WASCSR 203

State of Western Australia v Tax [2010] WASC 208

The States of Western Australia v Gibson [2014] WASC 240

C Legislation

Communities Act 1979 (WA)

Criminal Law (Mentally Impaired Accused) Act 1996 (WA)

Criminal Investigation Act 2006 (WA)

Police Act 1982 (WA)

D Other

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Clarke, Tim ‘How Justice Failed Gene Gibson,’ The West Australian (Online), 13 April 2017, https://thewest.com.au/news/wa/how-justice-failed-gene-gibson-ng-b88442950z

Diss, Kathryn, ‘Two WA Police officers face possible demotion over bungled Josh Warneke investigation’ ABC News (Online), 7 January 2016

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Laurie, Victoria, ‘Indigenous Australian Gene Gibson was lost in translation,’ The Australian (Online), April 8 2017,

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