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Caruana , Catherine --- "Kelvin Condren -- Trial by Endurance" [1989] AboriginalLawB 58; (1989) 1(41) Aboriginal Law Bulletin 4


Kelvin Condren –

Trial by Endurance

by Catherine Caruana

The recent release of the Guildford Four and the quashing of the convictions which had seen them wrongly imprisoned for 15 years, highlights appalling flaws in the British criminal justice system. Just as this case lays bare corruption of the worst kind at both ends of that system, so the history behind the imprisonment of a young Aboriginal man in Queensland for a murder he claims he could not have committed, is causing increased public concern. Queensland authorities appear determined not to re-open the Condren case in spite of mounting evidence suggestive of his innocence. However, this intransigent attitude received strong censure this month when the High Court[1] accepted fresh evidence produced for the defence as "relevant, cogent and plausible" and referred the matter back to the Queensland Crown to "reconsider its position".

In reviewing a case such as this it may be edifying to keep the Guildford debacle in mind, as the two cases have disturbing similarities. Four young people (the youngest only 17 years old) were convicted in 1974 of IRA bombings in Guildford and Woolwich. These convictions were based solely on confessions the four had allegedly made to the police. Three years later, IRA members facing charges relating to the Balcombe Street siege confessed to being the real perpetrators of the earlier bombings. They were' able to provide exact and detailed accounts of their involvement in these incidents. However, in a subsequent appeal the Court of Appeal chose to reject this evidence and the convictions of the four were upheld.

Fifteen years after their arrest the Guildford four have been vindicated by new evidence which had come to light. It was discovered that not only had police fabricated the confessions that formed the basis of the Crown case, but the Director of Public Prosecutions himself had withheld from the defence vital alibi evidence relating to one of the accused. Such was the insidiousness of the conspiracy of silence that DPP officials waited a respectable period after the Director's death before sclosing the information.

As with the Guildford Case, the Crown case against Kelvin Condren rests primarily on a signed confession[2] alleged to have been made to Mt Isa police. Condren has always maintained that he was pressured to sign a false record of interview. Expert evidence was called at the appeal which cast serious doubts on the authorship of the responses contained in the transcript, but was rejected by the Court. Witnesses called by the Crown to corroborate the confession subsequently refused to adopt statements they had supposedly made, also claiming they had been pressured to sign false statements.

Only one month after the killing for which Condren was charged, a white man, charged with the murder of an Aboriginal woman in Darwin in similar circumstances, confessed to the Mt Isa murder and provided details of the injuries the deceased received. This man, described by a forensic psychiatrist as one of Australia's most pathological killers, substantially retracted this confession at Condren's trial, and subsequent out-of-court confessions were rejected outright on appeal.

The murder for which Condren is serving a life sentence occurred in the carpark behind the Mt Isa pharmacy sometime on the evening of September 30, 1983. Patricia Carlton, a young Aboriginal woman, was found lying in the carpark by a police officer on a routine patrol, early the next morning. She had been savagely beaten with a large metal pipe and died later that evening from massive head injuries. A large stone had been inserted in her vagina. Forensic evidence showed that the deceased had not been moved but had probably received her fatal injuries when lying on the ground, after the initial attack.

The Trial

According to two witnesses called by the Crown, the deceased had been drinking at the Mt Isa hotel on the night of her death, as had Condren. In statements taken by Barton - the officer who took Condren's alleged confession - both witnesses have the deceased leaving the hotel at approximately 3.30pm. At trial, both witnesses claimed they were forced to sign records of interview which were inaccurate.

Two other vital Crown witnesses who also claimed to have been pressured by the police to sign false statements were Louisa Brown and Stephen McNamee. They were two of a group of people the accused had allegedly named as being present during the attack. At the Committal, both refused to adopt the police statements, claiming that they were not made voluntarily. -Brown asserted that Condren had been arrested for drunkenness earlier than her alleged statement to the police indicated. According to the arresting officer, Condren had been picked up in the Civic Square at 5.50 pm and was so drunk he had to be virtually carried to the police vehicle. No records were produced at trial to verify when Condren was placed in custody, yet there was no indication that such records were not maintained.

The estimated time of the attack assumed great importance very early on in the case. According to the police the accused stated, on two occasions, that the attack took place at 4.15 pin. On the evidence available at the trial, the closest the Crown could get to determining that point was via the evidence of Little. At approximately 7.40 or 7.45pm Little, the manageress of the pharmacy, walked across the carpark where her vehicle was parked. She heard moaning or a gurgling noise near her car and assumed it was a drunk person. She also noted a bar lying on the ground near her car.

One can see that as at trial the evidence presented to the jury was anything but clear cut. The most controversial evidence rebutting the Crown Case, however, was that another man had claimed responsibility for the killing, only one month after Condren's arrest and before the trial. Andy Albury, a white man who worked at the Batchelor Abattoirs in the Northern Territory, had been charged with the brutal murder of Gloria Pindan in Darwin on 25 November 1983. Albury, who had a history of psychiatric disturbance and was an extreme racist, had freely admitted to kicking "a gin" to death in Darwin, pulling out one of her eyes and lacerating her breasts and genitals with a broken bottle. He said he enjoyed the killing and would do it again. When asked why he did it he replied: 'when I'm out shooting it's alright but when I knock off or finish for a while, I feel like killing again."

During the interview Albury stated to police that he had also "killed a gin in Mt Isa in September" while passing through on a bus trip. He described how he hit a woman with a piece of pipe and "shoved a rock up her arse." He said this incident took place approximately half an hour before he boarded a greyhound bus for Katherine, ie. approximately 7.30pm. Albury also confessed to a Melbourne forensic psychiatrist, Dr Bartholomew, who had been retained by Albury's solicitor to do a psychiatric report prior to his trial. However it appears the doctor was never questioned about the details of that confession.

Albury was in fact travelling back from a holiday in Melbourne to Batchelor and although no evidence was called to dispute his presence in Mt Isa at the time of Carlton's death, evidence as to his exact travel details was not produced; it seems the matter was never fully investigated.

Albury appeared as a witness at Condren's trial and substantially recanted his confession. He admitted to being in Mt Isa at the time and drinking at the Mt Isa hotel on 30 September 1983. He said he had punched an Aboriginal woman a number of times on the night in question, somewhere in Mt Isa, and then left her there. However it seems common knowledge that Albury was heavily sedated when he gave evidence at Condren's trial and therefore was unlikely to be completely coherent. Whatever the reason for Albury's retraction, it appears the jury did not attach much weight to his earlier confessions in Darwin.

On all accounts it seems Northern Territory police and Crown law officers were quick to assist with the information they had to hand and expedited Albury's trial so he could be called as a witness in Condren's case. However, three months after the confession it became evident that Crown law officers from Queensland had yet to obtain comparative details of the Darwin murder. Mt. Isa officers were invited to attend Albury's trial in Darwin but, to the great surprise of officers in the NT prosecution's office, declined to attend, though this should have been an important part of their investigations.

Appeal to the full court of the Queensland Court of Criminal Appeal

An appeal against Condren's conviction was heard by the full court of the Queensland Court of Criminal Appeal in March and May 1987. "Fresh" evidence on several points was called. After his appearance at Condren's trial, Albury reaffirmed in an out-of-court statement that he was responsible for the Mt Isa killing. The defence argued that had his further confession been placed before a jury at trial, there would have been a significant possibility of acquittal. Ambrose and McPherson JJ rejected this evidence on the grounds that it was material that had already been before the jury and obviously not accepted by them. They held it was not sufficiently weighty to justify a new trial.

The second ground of appeal was the evidence of two new witnesses, who claimed to have seen the deceased alive at least two and a half hours after Condren's reception at the Mt Isa Watchhouse for drunkenness. Judy McConachie and Wesley Kenny were drinking at the Mt Isa Hotel and claim they saw the deceased there until at least 7.40 pm. Once again the evidence was rejected as lacking "the credibility and cogency necessary for it to have any effect"[3]. From a reading of the transcript it appears the main reason behind Ambrose J's rejection of the testimony of these two women was the fact that it was "inconsistent with a large body of other evidence which has been given upon the trial by witnesses..."[4]. It was decided that the evidence would not have had a significant possibility of influencing the jury at trial. Finally the evidence was held not to be "fresh" as, it was argued, it should have been produced at the trial.

The other main focus of the appeal was the calling of the expert evidence which tended to support Condren's allegation that he was verballed by Mt Isa police. Dr. Eades, a linguistic anthropologist, had closely examined the record of interview with the police and compared the accused's responses therein with speech patterns displayed by the accused during the voir dire and during interviews with herself at Stuart Prison, in light of normal patterns of "Aboriginal English". She found that Condren's speech pattern was inconsistent with the speech pattern as displayed in the record of interview. Again, the Justices felt confident in rejecting outright the evidence of Dr Eades. After questioning whether this was a valid field of expertise they found that the doctor's "opinion" in effect usurped the role of the jury, and as such was inadmissible. In addition, it was suggested that the evidence could not be considered "fresh" as a clinical psychologist, Walkely, had given evidence at the trial of the tendency of Aboriginal people to "gratuitously concur" with matters put to them in questioning. In his reasons for judgement Ambrose J makes a very curious reference to Condren's genealogy, suggesting, it seems, that as the accused was only part Aboriginal he may not have come within the group referred to as "Aboriginal" by Walkley and Eades (see pp 275-6). This is a suggestion I'm sure many Aboriginal people would find offensive.

With this wholesale rejection by the Court of Criminal Appeal of evidence that at the very least raised serious doubts about his guilt, the Queensland justice system appeared to have turned its back on Kelvin Condren.

Further Evidence Uncovered

Further evidence was uncovered in March 1988 primarily due to the efforts of Chris Masters, an ABC journalist who produced an incisive documentary on the case. According to statements of the owner of the pharmacy, Mr Price, and one of his employees, Ms Millican, there was no sign of the deceased in the carpark between 5.15 to 5.45 pm. Both had traversed the carpark separately, within 10 minutes of each other and in broad daylight. If accepted, this evidence suggests that the accused would have had to have attacked the deceased in the carpark sometime between 5.45 and 5.47 pm, staggered the 200 metres to the Civic Square in an extremely intoxicated state, to be found there by the police at 5.47 pm.

In July last year this new evidence was presented to the Queensland Governor, Sir Walter Campbell, via a petition for Condren's pardon. Following his refusal to pardon Condren an appeal to the High Court was lodged. In the meantime, the Northern Territory Attorney General wrote to the Queensland Attorney General, Paul Clauson, in early November this year, outlining further confessions recently made to two psychiatrists by the prisoner Albury. In the sixth year of Condren's imprisonment, outside pressure made it impossible for the Queensland Crown to sweep the Condren case under the judicial carpet.

Appeal to the High Court

The High Court had, by virtue of the Mickelberg case[5] several weeks prior to the Condren appeal, held itself to be unable to receive fresh evidence on appeal. Mr Mulholland QC, for the applicant, argued that unless the Court made a direction regarding this evidence, it would never be tested in any forum and a great injustice would be done to his client.

He was seeking a direction from the Court to the Queensland Attorney General to exercise his powers under S.672A of the Queensland Criminal Code to refer the case back to the Court of Criminal Appeal. The three specific grounds of appeal were:

The matter was heard by the Full Court on the 16th of November this year. The Crown argued that it was not the function of the High Court to review the decisions of the Governor or the Attorney General in the exercise of their functions and that the Justices could not do so on the material placed before them, that was "untested, unargued before any lower court".[6] This, as indicated by Mason CJ, brought the argument full circle to the need for such an appeal in the first place.

The matter was adjourned pending the advice of the Queensland Attorney General as to his proposed course of action. The High Court decision implies that the Justices found the evidence relevant, cogent and plausible. In fact Justice Toohey stated that the evidence of Price and Millican shifted the whole focus of the inquiry, as, if accepted, "it virtually excludes the possibility of the applicant having been the person who committed the offence".[7]

If the Queensland authorities do not immediately quash Condren's conviction, then they must ensure that a rehearing of the matter is not delayed. An informal direction that Clauson was to meet with Condren's legal advisors early the following week, was made by the Court. The outcome of this meeting is unknown. In light of the history of Condren's case he should be immediately released pending the appeal. This was the course of action taken with Paul Hill, one of the Guildford Four, pending an appeal against his conviction for a separate offence. For Condren, who has only recently got out of maximum security, and for his family, especially his mother Julia, who has fought tirelessly for his release, the wait for justice has gone on long enough.

The Kelvin Condren Defence Committee has been raising funds for Kelvin on his release. A concert in Townsville on 18th November raised approximately $2500 and the prisoners of Townsville prison have raised $1000 out of meager prison earnings.


[1] Condren v The Queen, Unreported High Court Appeal November 16,1989.

[2] per Macrossan J in the Queensland Court of Criminal Appeal, Condren v The Queen 28 A Crim R 261 at 276.

[3] 28 A Crim R 261 at 261

[4] Op Cit, 289.

[5] Mickelberg v Reg [1989] HCA 35; (1989) 63 ALJR 481

[6] per Butler, Condren v The Queen Unreported, transcript p.71

[7] Op Cit. p.71


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