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

Tamara Tulich, Harry Blagg, Ava Hill-De Monchaux


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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A Articles / Books / Reports

Amnesty International Australia, ‘A Brighter Tomorrow: Keeping Indigenous Kids in the Community and out of Detention in Australia’ (Report, Broadway, May 2015)

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

Blagg, Harry, Tamara Tulich and Zoe Bush, ‘Diversionary Pathways for Indigenous Youth with FASD in Western Australia: Decolonising alternatives,’ (2015) 40(4) Alternative Law Journal 257

Blagg, Harry, Tamara Tulich and Zoe Bush ‘Placing Country at the Centre: Decolonising Justice for Indigenous Young People with Foetal Alcohol Spectrum Disorders (FASD)’ (2015/16) 19(2) Australian Indigenous Law Review 4

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)

Crawford, Catherine, ‘Families Impacted by the Criminal Justice System on the Frontier: A New Model Required’ (2010) 17(3) Psychiatry, Psychology and Law 464

Crawford, Catherine, ‘FASD Clinicians Forum’ (Speech delivered at the Telethons Kids Institute, 18 November 2014)

Corruption and Crime Commission, Report on Operation Aviemore: Major Crime Squad Investigation into the Unlawful Killing of Mr Joshua Warneke (Report, Corruption and Crime Commission, 5 November 2015)

Corruption and Crime Commission, Operation Aviemore: Commissioner of Police Response to Commission Recommendations (Report, Corruption and Crime Commission, 2 December 2016).

Cunneen, Chris and Rob White, Juvenile Justice: Youth and Crime in Australia (South Melbourne: Oxford University Press, 3rd ed, 2007)

Dudgeon, Pat and Roz Walker, ‘Decolonising Australian Psychology: Discourses, Strategies, and Practice’ (2015) 3(1) Journal of Social and Political Psychology 276

Loh, Nini Sui Nie, Max Maller, John Fernandez, Anna Ferrante and Matt Richard James Walsh, ‘Crime and Justice Statistics for WA: 2005’ (Report, Crime Research Centre, University of Western Australia, 2005)

Macleod, Fiona, B Macnish and Darlene Gould, ‘A Review of Structure and Service Delivery for the Community and Juvenile Justice Division, Department of Corrective Services,’ (Report, Price Consulting Group, 2009)

McCusker, Malcolm, ‘Miscarriages of Justice’ (2015) 42(9) Brief 14

Murray, Sarah, Tamara Tulich and Harry Blagg, ‘The Innovative Magistrate and Legitimacy – Lessons for a ‘solution-based’ model’ (2017) 40(2) UNSW Law Journal (forthcoming).

NSW Law Reform Commission, People with cognitive and mental health impairments in the criminal justice system: criminal responsibility and consequences, Report No 138 (2013)

O’Carroll, Bethali, ‘Intellectual disabilities and the determination of fitness to plead in the magistrates’ courts’ (2013) 37(1) Criminal Law Journal 51

Parliament of Western Australia, Legislative Assembly, Education and Health Standing Committee, ‘Foetal Alcohol Spectrum Disorder: the invisible disability’ (Report No. 15, Parliament of Western Australia, Perth, 2012)

Queensland Department of Justice and Attorney-General, ‘Community Justice Group Program’ (Report, Queensland Courts, 21 February 2016)

Senate Standing Committees on Community Affairs, Parliament of Australia, Indefinite detention of people with cognitive and psychiatric impairment in Australia (2016)

Western Australian Law Reform Commission, Aboriginal Customary Law Final Report, Final Report No. 94 (2006)

B Cases

Eastman v The Queen (2000) 203 CLR 1

Kesavarajah (1994) 181 CLR 230

Ngatayi v The Queen (1980) 147 CLR 1

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

Crawford, Catherine, ‘FASD Clinicians Forum’ (Speech delivered at the Telethon Kids Institute, 18 November 2014) http://alcoholpregnancy.telethonkids.org.au/media/1020099/fasd_clinicians_forum_magistrate_crawford_presentation.pdf

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

‘Gene Gibson: Indigenous man jailed over Josh Warneke’s death has conviction overturned’ The Guardian (Online), April 12 2017,

‘Gene Gibson freed as conviction for Broome manslaughter of Josh Warneke quashed,’ ABC News (Online), 12 April 2017

‘Josh Warneke death: Gene Gibson granted leave to appeal against conviction over Broome killing’ ABC News (Online), 15 November 2016

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

Laurie, Victoria, ‘Manslaughter conviction overturned, Gene Gibson free’, The Australian (Online) 13 April 2017

Martin, Chief Justice, ‘Indigenous Incarceration Rates: Strategies for much needed reform’ (Speech delivered at the Law Summer School, Perth, 20 February 2015) http://www.supremecourt.wa.gov.au/_files/Speeches_Indigenous_Incarceration_Rates.pdf