IT WAS the fourteenth day of the trial. The two men in the dock, charged with murder, were young Aborigines; the dead man was white. If found guilty the accused would go to jail for life, which in the Northern Territory means a minimum mandatory non-parole period of twenty years. Both were pleading not guilty.
Their parents had been in court for every day of the trial. Filling the public gallery today were aunties, uncles, brothers, sisters, cousins, nephews, nieces, some of them small children, and a grandmother of one of the men. Just before one o’clock, when the jury retired to consider its verdict, the wait began.
The family of the dead man left the courthouse. The family of the accused settled in on the narrow benches that line the walls of the foyer, the children playing under their parents’ feet. Now and then the judge’s associate would emerge to talk to the lawyers or prosecutors; conversations stopped and everyone watched until he disappeared again. When the jury was ready, he was the person the jury attendant would tell.
The hours wore on and the children became fractious. The anxious adults were preoccupied, so the security guard, a white man, suggested the children play hide-and-seek with him. He was the kind of person who just can’t help being friendly. The court had installed a security scanner in the entrance, like the ones at airports, and each day he took the opportunity to chat to everyone who passed through. Now he had the children running all over the foyer, hiding behind the potplants or around corners, and whooping with delight when he found them. The adults watched and smiled.
By five o’clock most of the court staff had gone home. Who knew how much longer this would go on? The kids were getting hungry, so the guard suggested that everyone chip in for pizza. Out came the change and the five-dollar notes. He was just figuring out how many to order when the judge’s associate appeared and the lawyers and prosecutors followed him back into the courtroom.
The jury had sent word that they weren’t close to a verdict. They wanted to stop for the day and come back tomorrow. It was 6.20 pm. The anti-climax settled on the families like a heavy blanket. They trailed out into the night. With disappointment, the guard watched them leave; he’d been looking forward to the picnic with them.
WITH its romantic image of the hardy frontier town now just an uneasy memory, Alice Springs is widely cast as a place of Aboriginal disadvantage and dysfunction. Much of the blame for that shift is attributed to the legacies of the colonial past, including racism of the institutional as well as everyday kind. But might it be more useful to understand Alice as a place constantly being remade by multifaceted encounters between different cultures and their different histories? What the town might come to look like is a matter of debate and contest, yet changes are happening every day.
In the trial of these two men in 2011, a picture emerges of the town’s interracial dynamics. They are not nearly as clearcut as might be supposed: we see some of the prejudices and sensitivities, some of the systemic biases and divisions, some of the aspirations and the connections – not only between individuals, but also within the justice system, the administration, in local media, in workplaces, leisure places and public places.
The town was accustomed to news of alcohol-fuelled violence afflicting Aboriginal individuals and families. This time it was a rarer event, the killing of a white man. It was a trial in which lines separating the races in Alice Springs were sharply drawn – or at least it initially appeared that way.
The dead man’s name was Ed Hargrave. He died on the night of 3 April 2009 in a suburban street from a single stab wound. The photo released by police at the time showed a handsome man with short light-brown hair, warm blue eyes and a wry smile. He’d come to Alice from country Victoria in the early nineties as a competitive boxer, loved the place, stayed and came to be well-known and well-liked. In this motor-mad town he switched from boxing to motocross and then to racing quads. He started a family with Sarah Woodberry, whose father owned a successful motorbike dealership. They had three little girls and, although he and Sarah hadn’t known it when he died at the age of thirty-seven, a fourth child was on the way. His memorial service began with a long cavalcade of cars, bikes and trucks through the town and was attended by hundreds of people.
The two young Aboriginal men accused of his death had fled the scene but were soon arrested. They were Graham Woods, twenty-five, and Julian Williams, twenty-two. On remand, they complained of being threatened and abused by guards, and for a while they were moved to Berrimah jail in Darwin. Woods became convinced that he would not get a fair trial in Alice Springs, so in mid 2010, backed by his family, he applied through his lawyers to have the case heard in Darwin. Williams joined the application. It was supported by an affidavit from Woods’s father, Graham Senior, who said that following Hargrave’s death he had had difficulty getting work in Alice Springs for the first time in his life. Threatening and offensive remarks had been made to him and his family, and he believed they were being blamed for the killing.
Woods’s lawyer, Russell Goldflam of the Northern Territory Legal Aid Commission, also made an affidavit about his personal and professional experience of local antagonism towards Aboriginal people on the basis of their race. It was, he said, “common, widespread and deeply felt.” He attached to the affidavit examples of the media coverage of Hargrave’s death, which he argued revealed an implied bias.
The biweekly Centralian Advocate’s front-page coverage of the death was headed, “Good guy who could do anything.” The story spilled onto page two where, alongside details of the killing and of Hargrave’s life, there was a vox pop survey of locals’ views on “gang-related street crime.”
A fortnight later the paper led with a plea from Hargrave’s parents, headlined “Don’t Let this Happen Again.” Their comments linked the tragic death of their son to the town’s “real issues”: “I see grown men in their late twenties walking aimlessly in the streets with no direction or pride in themselves,” said Richard Hargrave. “There are young children roaming the streets with nothing better to do and no guidance from their parents. I see people living for their next government cheques, so they can afford to buy grog.” Trish Hargrave recalled the “gentle and clean” Alice of the past. Now the town had become a “violent and dirty place that has attracted trouble makers and criminals of the worst kind.” The word Aboriginal wasn’t mentioned: it didn’t need to be.
Comments, partly in a similar vein, were aired on local ABC radio following Hargrave’s funeral. The report quoted Scott McConnell, Hargrave’s boss and friend, who was with him on the night of his death and would be an eyewitness at the trial. McConnell said the death was “a wake-up call for the community.” “A person of Ed’s stature, to be picked out like this and to have this happen to him, is an appalling indictment on our town,” he said. “When are we going to do something to deal with the issues that exist here? And when are we going to work together instead of telling the stories and looking for somebody else to blame?”
In June, in the lead-up to the off-road Finke Desert Race, one of the biggest events in the Alice Springs sporting and social calendar, the ABC reported that a paraplegic competitor would be doing his best to honour Hargrave, who had helped him modify his bike. The report, not choosing its words carefully, went on to say that Hargrave had been “murdered during a disturbance in April.”
In December a report of the committal hearing, leading the Centralian Advocate, was headlined “DNA found on knife.” Readers had to go to page two to learn that the DNA was the victim’s. It was not clear if any DNA taken from the suspected murder weapons belonged to the accused.
Material from the weekly Alice Springs News was also included with the application for the trial to take place in Darwin. Two of the items were articles I had written, in which I referred to Hargrave’s death, albeit briefly, while discussing racial tension and division. One article named the accused; the other referred to “two Aboriginal men” accused of his murder. Both articles were prompted by the death of the Aboriginal man D. Ryder (now called Kwementyaye, an Arrernte bereavement term) and the legal proceedings dealing with five young white men who ultimately pleaded guilty to his manslaughter.
Neither this material, nor the oral submissions, was enough to persuade Justice Jenny Blokland. The alleged treatment of the applicants by prison guards, if true, was serious but it had since changed, she said. Local “intensity of feeling” had diminished in the year or more since the death. She noted submissions from the Crown reporting that no antagonism had been evident in and around the court at the committal. In her view, any residual concern could be dealt with by the trial judge. In the interests of the community, trials are usually conducted where the offence has been committed and in front of juries from the same area. This trial would go ahead in Alice Springs.
Many locals viewed the Hargrave case as the inverse of the fatal assault on Kwementyaye Ryder, which was seen as a white-on-black attack. Ryder died on 25 July 2009, three months after Hargrave. In the coverage of the Ryder death, the race element was highlighted; it prompted and framed much of the national and international media interest, some of it quite hysterical. There was almost no national media coverage of the trial of Hargrave’s attackers. While a racial dimension had been at least implied in local coverage, people expressed anxiety in private about the potential for an increase in racial tension. By the time the matter finally came to court – and the town had weathered the Ryder case without further incident – this fear had receded. The trial, however, would bring race into focus once more.
APART from what they saw as evidence of local racial prejudice towards their clients, the defence team presented Justice Blokland with a further concern. In their view, the jury selection process in Alice Springs was racially skewed. Blokland thought that the trial judge could properly direct the jury and, no matter what its racial makeup, there was no reason to believe the jury would not comply.
In September 2010, just ahead of the trial’s scheduled start, the defence team tried again. This time their challenge to the jury array was considered by the Full Court. The central argument was that, given the way they were selected, juries in Alice Springs could never be representative. Aboriginal people make up around 21 per cent of the town’s population but never comprise a similar proportion of jury members. They also make up the overwhelming majority of inmates in the Alice Springs jail. The point was not that juries should be made up of a proportionate number of Aboriginal people – true random selection would not necessarily achieve this – but that selection procedures should provide for that possibility.
Various factors precluded it, argued the defence team, which was headed by prominent Territory QC Jon Tippett, brought in by NT Legal Aid, with Russell Goldflam as junior counsel. They included the broad disqualification provisions in the Northern Territory’s Juries Act. To qualify as a juror anyone sentenced to a prison term must have completed his or her entire sentence at least seven years before. One-in-four people were disqualified from the initial jury list for the Woods and Williams case, most likely on the basis of having a criminal record.
In the Full Court, Justice John Reeves described this as a “startling figure.” Given the “very extensive mandatory sentencing provisions we’ve had in the Northern Territory over a very long period of time,” the acting chief justice, Dean Mildren, was less surprised.
Goldflam pointed out that the disqualification provisions did not distinguish between short-term and long-term sentences and hence the degree of seriousness of the offence. He also provided comparative estimates: 0.3 per cent of potential jurors in Victoria were disqualified or exempted; 0.5 per cent of the general population over the age of twenty-one in New South Wales had received a prison sentence. There was a “gross” disparity between these figures and Alice’s 25.4 per cent.
The defence team also put its finger on some of the ways that bias against Aborigines had come to be taken for granted in day-to-day administration and services in Alice Springs. These included the failure of the electoral roll to record house numbers for addresses in town camps, where a substantial minority of the town’s Aborigines live. Potential jurors are also summonsed by mail, but at the time there was no direct postal service to town camps (although this began to change in 2011).
Part of the challenge succeeded. The Full Court found that the jurors had not been summonsed in strict accordance with the law, and that the checks for disqualification had been carried out by SAFE NT, a division of Police, Fire and Emergency Services, which “is not indifferent to the prosecution.” The court quashed the jury array and processes were tidied up. It would now be up to potential jurors to declare their criminal record; court staff would check only after empanelment.
But the disproportionately low participation by Aborigines on juries is not entirely caused by these processes, as we shall see. Nor was it, in the trial of Woods and Williams, the only race issue that judge and jury would have to contend with. The spectre of bias would dog the conduct of the trial to its penultimate day.
THE trial finally got under way on 7 March 2011. Almost two years had passed since Hargrave’s death and the subsequent arrests. The accused, and their families, were in a limbo of anxiety about their futures; the family of the victim was in a limbo of grief and anger over the legal manoeuvres.
Even though only a quarter of the 300 people summoned were in attendance (not, apparently, an unusually low proportion), there was standing room only for jury selection and empanelment in courtroom one as crown prosecutor Ron Noble read out the list of witnesses who would be appearing. Potential jurors could be exempted if they knew any of the witnesses, or were acquainted with any of the lawyers, either of the accused, or the alleged victim. One by one, twenty-nine of the thirty-four people seeking to be excused, or believing they might need to be excused, were given permission to leave. Trial judge Justice Reeves erred on the side of caution: even the “perception of the possibility of bias” was of concern, he said.
Those twenty-nine included a number of Aboriginal people – at least four, judging by their appearance, though that is not always a definitive guide. One was a plumber who had been working with Hargrave before he died; another, a ranger, had worked with one of the witnesses and was “affiliated” with the Woods and Williams families. A woman who worked as a researcher with an Aboriginal organisation was related to the Woods family – “my full family,” as she put it – and a woman who worked as an electorate officer had, by coincidence, been at the scene of the crime on the night and had also had dealings with one of the witnesses.
A ballot was then conducted, using numbered marbles drawn from a barrel, and the lawyers – standing next to their clients – had their chance to vet the candidates. They appeared anxious to eliminate white men and women who looked to be of Hargrave’s age group and social milieu. Although they sometimes hastily conferred with their clients, mostly it was the lawyers’ decision. They issued the maximum twelve challenges allowed for each of the accused.
Only one person was eliminated by the Crown. I was surprised that she had not sought to be excused as I immediately recognised her as a close relative of one of the men convicted of the manslaughter of Kwementyaye Ryder. (The five had already pleaded guilty and been sentenced, and four of them were still behind bars.) But her name wasn’t lost on prosecutor Noble. She looked relieved when she heard him call out, without even turning round, “Stand aside!”
There were only eight marbles left in the barrel when a jury was finally assembled. Goldflam has commented that the process “was not so much one of randomness as one of attrition.” The six men and six women ranged across ages, ethnicities and backgrounds, and appeared to include two women of Aboriginal descent (again, I say this on the basis of physical appearance – there may have been others). They were joined by two reserve jurors, both women. Woods and Williams were now in their charge as the sole “arbiters of the facts.”
From the outset, prosecutor Noble tried to head off the race angle. In his opening address to the jury he referred to the “racist taunts” on both sides. But he pointed out that while Woods and Williams were “part-Indigenous,” so were some of Hargrave’s friends present on the night. He also said that Scott McConnell, Hargrave’s friend and boss, would give evidence that he tried to explain to the accused men that Hargraves worked for an Aboriginal corporation. Noble thus rejected any suggestion that the case was about violence based on race. The “bottom line,” he said, was simply violence: the Crown case was that Graham Woods had inflicted a fatal stab wound on Ed Hargrave and that Julian Williams, acting with “unlawful common purpose,” had struck a blow with a pole immediately after.
The defence lawyers were initially restrained on the race issue. Tippett QC for Woods mentioned the “prejudice” that “we all suffer from in one way or another”; he asked that the jurors be “objective” about the things that “humans do in circumstances of great pressure.” John Dickinson QC, brought in from interstate by Central Australian Aboriginal Legal Aid to represent Williams, echoed Tippett – “we’re all human” – and urged the jurors to put aside “emotion and prejudice.”
APART from racing quads, Ed Hargrave had been an expert welder and worked for a small Aboriginal organisation, Ingkerreke Outstations Resource Services, whose enterprise arm, Ingkerreke Commercial, specialised in construction and metal fabrication. Hargrave trained its apprentices – young Aboriginal men – in welding. “Ed was proud of the boys,” his brother George wrote in his victim impact statement, “not only at work but in their family lives too because they were mates.” George thanked these men and their families for “their support at Ed’s funeral.” He made this point before describing those he held responsible for his brother’s death as “the fucking scum of the earth.”
On the night of the death, Ingkerreke staff were out on the town to farewell a colleague. He was Faron Peckham, a middle-aged local Aboriginal man with a self-assured, steady manner. A qualified tradie, Peckham was leaving Alice to take up a job in Queensland. Hargrave was at the farewell, as was his young brother-in-law, Luke Woodberry, also employed at Ingkerreke at the time, and another workmate, Greg Smith, and his wife, Rosina Ross, who are both Aboriginal.
Smith and Ross had been having a social drink at the suburban Gillen Club before meeting up with the others at Town & Country, a pub on Todd Mall, at about three in the afternoon. The boss, Scott McConnell, joined them a little later. A white man, born in Alice Springs and raised on Napperby Station, McConnell had become CEO of Ingkerreke in 2005, taking it in a new direction with a focus on full trade apprenticeships and commercial activity to generate real jobs for Aboriginal people. He’s articulate, assertive and down-to-earth.
From Town & Country the Ingkerreke group moved along Todd Street to the Memorial Club, known as the Memo, where there was a karaoke bar. It was a Friday and drinking sessions would have been going on all over town. There was nothing unusual about that, except that Alice locals, black and white, do their drinking extra seriously, downing twice the national average (1.5 times if Aboriginal drinkers are taken out of the equation). Peckham told police later that night that his group was “intoxicated.” In their trial evidence they all admitted to drinking, but not, they said, excessively. The boss, McConnell, said he was “well and truly in control of his faculties”; young Woodberry said he was “never drunk.”
The accused men, Woods and Williams, were doing their bit, sharing two cartons of beer between five. They’d started that afternoon at Graham Woods’s flat on Northside. His very pregnant wife, Coralie Neil, was over at his sister’s place with their son. His brother Corey had shouted him a CD by the American rapper 2Pac and they listened to it while having a few drinks with their cousin Julian Williams and a couple of friends. After sundown, their friends went home and Graham, Corey and Julian walked into town, finishing their last cans on Anzac Hill. They were “pretty charged,” Woods told police.
From Anzac Hill they wandered down the mall and along Todd Street to the 24 Hour store, where Corey bought them each a cheese and bacon pie. It was here that they came into contact with the Ingkerreke group.
It started with what the prosecutor described as a “taunt” aimed at McConnell, who had left the Memo, a few doors down, to go to an ATM. McConnell said that he was called a “fat white c—t,” twice. (“White c—t” is a common enough term of abuse in Alice – I have been called a “white c—t” for irritating a fellow user of the roads. “Black c—t” would be just as common, if not more so.) In his police interview Woods denied using this term of abuse but said it sounded “pretty much like” what Williams had said. It was Williams, according to Woods, who had started teasing “the chubby bloke” and who kept it up. From the start, Williams maintained his right to silence, so we never heard his account of events.
McConnell said he was told he needed to go on a diet and was also squirted in the face. Initially he’d feared it was acid but in fact it was only water (Woods said Williams did this). McConnell’s verbal retort, he admitted under cross-examination, was that his abusers were “softcocks.” There was some argy-bargy and McConnell, by now “extremely annoyed,” used his mobile to call his friends who were still inside the Memo.
Hargrave and Woodberry were the first to respond, finding McConnell and his tormentors in the carpark opposite the club. Smith and Peckham soon followed. Punches were thrown, with five men on the Ingkerreke side and four on the other – the Woods brothers, Williams and another cousin, Jermain Woods.
Hargrave was a big man –188 centimetres tall, weighing 110 kilograms. The forensic pathologist provided the court with this precision, and Hargrave’s size was repeatedly stressed by the defence. We could see his companions for ourselves, as one by one they gave their evidence. Peckham was older than the rest but tall and well-built; Smith, probably in his thirties, was tall, lean and tough-looking but edgy; Woodberry, relatively short and stockily built, was young and strong; McConnell, probably in his forties, was of average height but with a large frame and quite overweight. The contrast with the other side was sharp. Graham Woods, in particular, was slightly built, although he looked fit; Williams was a little bulkier, as were Corey and Jermain Woods. Each was in his early to mid twenties and of only average height.
Jermain – who, Graham Woods told police, had the “pissed horrors” – was knocked out cold in the fight. He said he was hit on the left side of his face and was “asleep for a while.” Who hit him? “The bloke who’s dead.”
The altercation escalated. Jermain got to his feet and took off towards Bloomfield Street. Corey, Graham and Julian were behind him, with the Ingkerreke group following. As they passed the Flying Doctor base, Corey jumped the hedge and hid. From there, Graham and Julian were on their own. As they ran, Hargrave, Woodberry and Smith were closest behind them. Smith said he was “sprinting”; later, Hargrave overtook him. McConnell and Peckham were walking and soon lost sight of the others.
Tippett QC for Woods described it as “a hunt”; Ingkerreke boss McConnell preferred to see it as “responding” but admitted that, in one of his six phone calls to police to get help, he had spoken of wanting to “break some fucking skulls.” He had also declined to accept the advice of the operator to return to the Memo or come to the police station. At the end of the fifth call he told the operator, “All right, we’ll deal with it, thank you.”
Woods and Williams, meanwhile, were heading for the home of Woods’s sister, Lindy, in the public housing flats on the corner of Bloomfield and Musgrave Streets, 1.4 kilometres from the Memo. In his police interview, Woods said he was “puffed out” and “exhausted from running” when he got there.
WOODS’s interview was conducted on the evening of 6 April, three days after Hargrave’s death. He had been arrested the day before. His “prisoner’s friend” was his grandmother, Agnes Woods. Detective Senior Constable Vanessa Barton asked most of the questions. She had a steady, not unfriendly manner and, in the circumstances, Woods seemed quite comfortable with her. He told her that English is his only language. He went to year nine at the local Catholic school and can read and write, though “not very good.” He had worked in the past but not in the last month.
Woods came across as an ordinary guy with a pleasant appearance and demeanour. Perhaps he also seemed somewhat immature despite being, like Hargrave, the father of three with a fourth on the way (the child would be born the following week). He spoke fondly of the children who were in his sister Lindy’s flat on the night, including “my little boy, Latrell.” Detective Barton commented on the unusual name and he told her that it was from a movie, “a good movie.” At this stage the three-hour interview had been going for over two hours, with one short break. Barton kept taking him back over the events, working her way slowly towards getting from him an increasingly detailed and candid account. From the start he was emotional when describing the critical moments, his voice very low. Later he cried, wiping his eyes, his voice breaking.
He admitted that he was not in danger when he ran out from Lindy’s flat to meet Hargrave, but he qualified by saying, “I was in danger when they was chasing me.” Elsewhere in the interview he said he was frightened: the men outside were singing out, “We’re going to kill yous c—ts.” He said Williams wanted to fight and went out with a bottle and a little pole in his hands (this, like all of his comments about Williams, could not be used as evidence against his co-accused, as Justice Reeves made clear to the jury). Woods said he went outside because Williams was his cousin and also because he thought the men chasing them “were going to come inside my sister’s flat.”
Barton asked him whether he feared for his life. “I tell you the truth, if they would’ve caught me they would’ve beat the shit out of me.” Asked again how he had felt – and by this time he had admitted that he had a hockey stick in one hand and a kitchen knife in the other – he answered, “Felt like upset.” Upset how? Angry way? “Because they kept on coming, they just kept on coming.”
Woods ran out and Hargrave “stood his ground,” as the prosecution described it, or went to meet him, as the defence had it. They came together in the middle of the street and grappled. Hargrave grabbed Woods’s right arm, apparently in an effort to get the hockey stick; his back was exposed. In a single movement – a key plank of the defence, acknowledged by the forensic pathologist as possible, and ultimately accepted by the jury – Woods’s knife, in his left hand, cut Hargrave’s scalp and then penetrated the back of his right shoulder towards the neck.
“I forgot all about a knife in my left hand,” Woods told Barton. “I thought I pushed him, at the last minute I realised I had a knife in my hand.” It went through muscles, downwards and forwards, fracturing one rib, cutting another and injuring two relatively large arteries, which bled profusely. Hargrave died within minutes in the arms of his brother-in-law, Luke Woodberry, twenty years old at the time.
In court, the families of the accused and the dead man didn’t look at each other. Woods’s and Williams’s parents would sit as close as possible to the dock, close enough to touch their sons, to speak to them in whispers at the end of each trial day. Hargrave’s family – his parents daily, his siblings and in-laws some of the time, his widow on the final day – would sit as close as possible to the entrance and as far as possible from the accused and their relatives.
Luke Woodberry – two years later still emotionally wrought by the events – admitted under cross-examination that the pursuit across town was “a chase” and that he had wanted to “fight.”
Greg Smith said the accused men were “egging us on” and he was ready to “give it back to them.” He still seemed ready in the witness box. Tippett QC, a short man with a big voice and combative manner, went in hard. Smith pushed back just as hard: “I don’t think so, mate,” he would say, “I don’t know, mate,” angry and scornful. Tippett put to him that he had told police he was going to chase Woods and Williams and beat them up. “Exactly,” Smith replied. The way he saw it, Woods and Williams had challenged the Ingkerreke group to fight. “They were baiting us all the way,” he said. “We was invited back there.” At one stage, Smith said, he hid in the saltbush along the railway line; from there he saw Woods and Williams “throw rocks at the boss” – McConnell – and “hunt him down like a dog.”
McConnell described the scene when he arrived in Musgrave Street as “pandemonium.” Tippett suggested that the Aboriginal women in Lindy Woods’s flat were “defending their home,” “yelling and screaming,” telling the Ingkerreke group to “fuck off” and “banging sticks on the ground.” McConnell couldn’t say, but Peckham gave evidence that the women were brandishing sticks, hitting the ground and swearing. Asked if he had threatened to punch and kill women, Smith said, “I might have.” Asked if he had threatened to harm children, he said, “No, who knows, yeah.”
The diminutive Lindy Woods said she was watching TV with her sister Samantha and Coralie Neil, Graham’s heavily pregnant wife. Three children were with them in the flat. She heard banging on bins and yelling. When she let Graham in she could see “two fellas” – one “white” and “big built, tall,” one “dark,” “a big fella as well,” an Aboriginal man. They were coming up the street towards her flat and “another fella” was on the opposite side of the street. The two near her were swearing, she said: “You black c—ts,” “Get them pricks out.” She said they were throwing rocks and dirt at her and Coralie.
The “dark” one was Peckham. He was an impressive witness. Justice Reeves later remarked that Peckham was in the “unusual position” of having all counsel – the prosecution and both defence lawyers – rely on him. He was “fairly even-tempered, controlled,” said Justice Reeves; he seemed “fairly definite about what he saw and not willing to adopt positions he didn’t agree with.”
Asked to describe Hargrave’s attacker, Peckham said the man was “my colour, skin tone that is, a bit dark.” He described an exchange of words with the women. They asked who he was and he replied, “This is my grandfather’s country. Who are youse?” The prosecutor asked whether he had said this in English or “language” (meaning an Aboriginal language). Peckham said he had spoken in “plain English.”
While many local Aboriginal people are related or know one another, that is not always the case. Peckham and Smith did not appear to have known Woods and Williams; their loyalty on the night was to their non-Aboriginal workmates, and their antipathy was to their boss’s Aboriginal tormentors.
As for generalisations about the aimlessness of young Aboriginal men and the trouble this causes, they too were tested by what the court learned later of Graham Woods. He had worked full-time for two years as a labourer in a gardening business and, before his arrest, had been about to take up a permanent position as a truck driver at the Granites Gold Mine, in the Tanami Desert northwest of Alice Springs. The court also heard that he had no alcohol or substance abuse problems – “unusual for a person in [his] position,” according to Justice Reeves.
IF A murder trial is always a heavy responsibility for a jury, the trial of Woods and Williams piled on extra pressure. To start with, at least some of the jurors would have been aware, from the media coverage, of the legal challenge to the jury array on the grounds of its built-in bias. This awareness may account for some of the sensitivities that were revealed as the trial went along, and some jurors may have been more self-consciously determined to scrutinise themselves and what was put before them for bias or prejudice. But before the trial got even that far, the small-town web of connections evident during the jury empanelment – particularly among Aboriginal people with their large extended family networks – resurfaced on the very first afternoon.
Justice Reeves received a note from a juror wondering whether he or she had a conflict of interest. A work colleague had revealed she was the aunty of both Woods and Williams, suggesting that the juror could use this as an excuse for not serving. The juror was not on close terms with this colleague and had never met the accused, but felt uneasy about the perception of bias. Justice Reeves didn’t see a problem, however, and neither did counsel. A message was sent back that there was no cause for concern.
The next day was Tuesday, publication day for the biweekly Centralian Advocate. After lunch a copy of the paper was being passed between counsel at the bar. The headline on page one was innocuous enough – “Court told of fatal stabbing” – but inside, on page two, the juror’s note was grossly misrepresented. According to the article, the juror was “related to the accused but had never met the two men and their family ties would not affect the juror’s decision.” After “a brief deliberation,” it said, Justice Reeves had “allowed the juror to remain.”
Tippett for Woods was first to his feet, wanting time to seek instructions. Prosecutor Noble was sanguine – he felt the situation could be dealt with by directions to the jury – but Dickinson for Williams could hear “alarm bells” ringing.
After a brief pause, Tippett applied to have the entire jury discharged. Even if a substantial retraction were printed, it would not appear until Friday. The jury would feel “compromised” by their perceived lack of impartiality, and this could “infect” their capacity to deliberate fairly. Better to discharge them now before a lot of evidence had been given (there had only been one witness so far). The concern was not limited to the jury, said Tippett; it extended to the town of Alice Springs.
Dickinson backed his call: even if His Honour set the record straight in court and a retraction were published, there was no way of ensuring that the jurors would not still have to deal with a lingering perception in the community that they were compromised. This would play on their minds, and they might feel more reluctant to accept evidence in favour of his client. Noble promoted a minimalist approach: discharge the juror, though it was no fault of that person, and continue without a taint on the other members.
The upshot was that the erring young journalist and his editor were carpeted. They were at risk of being found in contempt of court, but of greater concern to Justice Reeves was what they could do to correct their inaccuracy. Their next edition was not due until Friday, explained editor Gary Wasserman. But perhaps their sister paper, the Northern Territory News, a daily, could do something.
Tippett did not think the NT News was widely read in Central Australia and believed that the problem remained. He linked the situation to his client’s past application to have the trial removed to Darwin because of a perception of bias against him. Dickinson picked up on this point: given its history, the trial didn’t need another reason to tip the balance towards “unfair.” Noble reliably took a more sober view: properly directed jurors would be true to their individual oaths, they would all know that they were not tainted, and with the retraction published, anyone who had been misinformed would soon be disabused.
The jury had been released for the day and now the court adjourned. Justice Reeves had rejected the application to discharge the whole jury and he would be reflecting overnight on his course of action, at present leaning towards discharge of the single juror.
By the next morning he had decided that even that would be wrong. It would not only reinforce the effect of the Advocate’s inaccuracy, it would also set an unfortunate precedent: a juror, or jury, could be targeted by publishing inaccurate information about them.
Wasserman appeared with the NT News’s detailed correction. With the Advocate’s own correction following on the Friday – a double column on the front page – Justice Reeves was satisfied. (The Advocate did not return to reporting the trial, except for a brief account of the verdict.) Drama averted, Justice Reeves explained the decision at some length to the jury and then urged them to put it aside.
Day four was drawing to a close when the jury again struck a snag, this time in relation to one of the very matters the defence team had raised in their challenge to the array. Court staff in Darwin had discovered that one of the sworn jurors was actually disqualified from serving because she had been sentenced to a term in prison on the wrong side (by some months) of seven years ago. The one-month sentence had been wholly suspended, but it was still a term of imprisonment within the definition of the Juries Act.
Tippett, backed by Dickinson, wanted time to consider and asked for an adjournment, but Noble said it was clear, the juror should be discharged. By the next morning Tippett and Dickinson agreed. The juror concerned was called and, sure enough, she was one of the two who appeared to be of Aboriginal background. Ironically, this whole scenario would have been avoided had SAFE NT continued to do the background checks of everyone on the list before selection and empanelment. The juror was discharged, and one of the two reserves was chosen by ballot to replace her.
There was still at least one Aboriginal woman on the jury. We cannot know what difference that may have made, but we do know that at least one other juror was conscious of her presence. In his summing up, Dickinson QC for Williams had told the jury the case was “ripe for sympathy and prejudice,” that it had “racial overtones” and he referred to “a debate going on” in this town “that we all know about.” He obviously did not feel the need to be more specific but went on to urge the jury not to allow “sympathy” for the Hargrave family to “colour” their analysis of the evidence.
One juror objected to this message strongly enough to send Justice Reeves a note on the matter. Dickinson’s comments had been “offensive and insulting,” and “at no time in any breaks have the racial backgrounds been discussed prejudicially amongst jurors.” “I expect I do not speak only for myself,” wrote the juror, adding, “There is at least one indigenous member of the jury who may also have found the comments insulting.”
In his or her umbrage, the juror also wrote: “Quite frankly it would seem that his [Dickinson’s] client was the initiator of any racial issues, so it was disappointing to have this raised as a theme which may influence the jury.” The lid had again been taken off.
Dickinson QC was not in court to hear all this; he had left for Melbourne where he had commitments in the Victorian Supreme Court, leaving junior counsel Ted Sinoch to represent Williams. Sinoch now applied for the jury to be discharged and the trial vacated, on this its thirteenth day. The juror had concluded, said Sinoch, that “the racial dimension” to the offending had been initiated by his client and it appeared that the juror’s views had been relayed to others. The jury was now “tainted” with a view that was “prejudicial” towards his client. Dickinson’s comments were “nothing out of the ordinary,” and were the sort that would be made on any matter that had “an interracial element.” It was the juror’s sensitivity that suggested “a prejudicial mind.”
Justice Reeves wanted to know what the “interracial element” was.
Sinoch’s answer began simply: “The person or persons at whose hands the deceased died were Aboriginal; the deceased was a non-Aboriginal or Caucasian man.” He then referred, without explicitly naming it, to the Ryder death: “Your Honour may be aware that this matter follows or rather is attended in general community consciousness with another matter where the reverse was the case.” In this context, Dickinson’s exhortation was “appropriate”; it was the juror’s “apparent offence” that was “remarkable.”
Justice Reeves thought the note showed that the juror, and the others he or she had spoken to, seemed to be rejecting “any racial element” and was saying that the matter would be dealt with impartially. But Sinoch saw danger in the juror’s having canvassed the views of others, rather than simply expressing his or her own view. Had the juror started a “groundswell” of a view prejudicial to his client? If His Honour would not discharge the jury and vacate the trial, could he at least explain to the jury “in the strongest possible terms” that Dickinson “was not seeking in his comments to create a racial divide,” he was “merely seeking to ensure that racial prejudice or bias was expunged” from the jurors’ minds.
Justice Reeves was reluctant to justify Dickinson’s comments to the jury: Dickinson had been the “only person” in the trial to raise the issue of race, apart from the evidence given of various slurs on both sides. If Dickinson had had “a greater knowledge of the local situation,” he would not have embarked on that particular reference. “In a sense,” Dickinson had created the problem for his client, while he, Justice Reeves, had been at pains to avoid making any allusion to any “background” to this matter.
The implication was that Dickinson, the outsider, had said what was locally unsayable, best left alone.
Tippett for Woods did not back Sinoch’s application; he felt the issue could be dealt with by a direction to the jury. Prosecutor Noble agreed, though he commented that the words “ripe for prejudice” were “unfortunate.” What was more unfortunate in Justice Reeves’s view was Dickinson’s reference to “the debate that’s going on, that we all know about.” What debate, he asked rhetorically, before answering almost to the point of being disingenuous: “the political debate about policing in the town? The federal opposition leader has called for more police. What? The debate in the newspapers? All those matters are entirely irrelevant and why he referred to them I don’t know.”
Justice Reeves said he would speak to the jury, but in a way that he hoped would not cause further offence. Sinoch was left with his “nagging concern” that there would be fallout for his client, from the notion that he was the “initiator” of the events. Justice Reeves felt that was taken care of: “I’ve already told them, the issue for them to decide is what happened in Musgrave Street, not what happened out the front of the 24 Hour store.” This direction in part, he said, was to “avoid any prejudicial issues.”
The argument was not quite over. There was discussion between Sinoch and Justice Reeves about his summary of evidence to the jury that allowed for the possibility of Williams having struck Hargrave a blow. In his summing up, Dickinson had argued that the Crown had abandoned its case in this regard. Justice Reeves, however, said he was being careful to draw the distinction between something being possible and something being “reasonably possible” in the view of the forensic pathologist; it would be a matter for the jury to look at the whole of the evidence.
Tippett, returning to Sinoch’s application, raised the possibility of vacating only one trial, that of Williams. It had crossed Justice Reeves’s mind. At this point, Williams, who had sat impassively in the witness box for two weeks, became agitated. I could hear his whispered plea to “Ted” (Sinoch); they conferred briefly. Williams’s head was in his hands; then he began hitting it, repeated blows to the forehead, as though what he was hearing was unbearable. Was it fear that the jury might accept that he had struck a blow? Was he worried that Sinoch’s application looked set to fail? Or was it dread of it succeeding and having to go through it all again, at some undetermined date in the future, after having already spent two years in jail?
The application did fail. Justice Reeves spoke to the jury. Having been a member of the Alice Springs community in the past, and of the broader Northern Territory community, he understood that they might take offence, but the case needed to be tried on the evidence. The central issue was what happened in Musgrave Street, where Hargrave died. What happened outside the 24 Hour store and the Memo, but more particularly the chase, were relevant to “the state of mind of the accused” but most other aspects were “completely irrelevant.”
WILLIAMS need not have been so worried: he was acquitted. There was no evidence beyond reasonable doubt that he had struck Hargrave, nor evidence to support a finding of “aiding and abetting,” for which Williams would have had to have known that Woods had a knife. He looked stunned as he stepped out of the dock. He kept his eyes on the floor as he walked behind the bar table and past the family of the dead man in the gallery, not even looking around for his own family. His mother, whom he resembles strongly, stood up with tears running down her face and followed, with his father and others behind her. After two years in custody, Williams was free.
Woods, too, was acquitted of murder, but was found guilty of manslaughter. Although the court doesn’t hear the jury’s reasoning, Justice Reeves, in sentencing Woods, spent an hour outlining his reasoning based on the jury’s verdict. He considered the events outside the Memo and the subsequent chase to be “too removed in time and place” to have bearing on the sentence. Woods’s defence team had argued that these events provided the context for Woods’s action, leading him to act out of fear for himself and his family – “even if it was a classic case of excessive self-defence.” Justice Reeves rejected this, saying that the jury must have found that he did not act in self-defence or defence of others, or they would have acquitted him of both murder and manslaughter.
Woods had always maintained that he was not aware, until the knife went in, that he had it in his hand, but in Justice Reeves’s view the jury must also have rejected this and the argument put by his defence team that the blow had been struck “independently of his will.” Woods’s “high degree of culpability” for his crime was ameliorated by its not having been part of a sustained attack and not having had a murderous intention.
Woods became angry in the dock during an exchange between his lawyer, Goldflam, and Justice Reeves over the interview he had given to police. Goldflam argued that Woods was entitled to credit for conceding crucial facts in the interview, albeit slowly. Justice Reeves thought, however, that he had lied and prevaricated and had even attempted to blame his co-accused for the fatal blow. Woods would have sensed then what was coming. He appeared resigned when the detail was finally announced: a head sentence of nine-and-a-half years with a fixed non-parole period of four years and nine months. Such a sentence, with its fateful ring, is always a terrible moment in court. My hand was shaking as I noted the term. Woods’s tearful mother muttered, “Bunch of bloody liars.” She was able to hug her son before he was taken away: “Don’t you worry, son, don’t you worry.”
A friend of Kwementyaye Ryder had sat in court for most of this trial, obviously feeling that there was a link between the two cases. She, too, was angry about the sentence, seeing it as a case of a black man being treated more harshly than white men. Ryder’s five assailants had pleaded guilty to manslaughter and the judge, Chief Justice Brian Martin, determined that the manslaughter was negligent rather than reckless. One relevant factor was that Ryder’s injuries were minor and would not normally have resulted in death; another was that the probable cause of death was a ruptured brain aneurism that may have been precipitated by a blow or a fall – the forensic pathologist could not be sure.
Ryder’s attackers were sentenced to terms ranging from four to six years. The sentence of one, who had struck no blows, was to be suspended after twelve months; the remaining four had non-parole periods of three-and-a-half to four years. I said something to the woman about the difference in the type of attack, in particular about Woods’s use of a knife. I didn’t press the point with her, but the sentence, or at least the non-parole period, was not much harsher than four out of the Ryder five had received, even though Woods’s culpability was deemed greater – he’d been “reckless” rather than “negligent.”
Two narratives, with differing emphases from the two defence cases, had been constructed for the jurors. Their verdict showed that they extracted the threads from each that they thought were supported beyond reasonable doubt by evidence and plausibility. It confounded simplistic views, if any were still held, that this was a “black and white” case. Predominantly “not black,” though more ethnically diverse than the term “white” allows, the jury set a black man free and, while sending the other to jail, it was for a lesser offence.
The trial had allowed close inspection of events ending with a killing that had initially appeared to have strong inter-racial dynamics. It revealed a social picture of Alice Springs where, in contrast to much of the rest of Australia, there are frequent and complex interactions between Aboriginal and non-Aboriginal people. In this picture, when it comes to thinking about what is going on in the community and why, race is part of the mix not necessarily overshadowing all else – such as a male propensity to violence, fuelled by a drinking culture.
IT WOULD be glib to say that “justice had been done.” Julian Williams, after two years on remand, may have felt he had paid dearly enough for his acquittal.
Graham Woods, it emerged at sentencing, had made two offers in writing to plead guilty to manslaughter the year before. They had not saved him the trial and its anguishing possibility of a murder conviction and a “life” sentence, but at sentencing they gained him a two-and-a-half-year discount. More might have been allowed if a guilty plea had been made at the earliest opportunity, said Justice Reeves, and if the letters had contained expressions of remorse. Goldflam for Woods was surprised by this expectation – he had written many plea offers and they did not usually deal with remorse. Woods had shown remorse in his record of interview when he said he was “disgusted” with himself; and he had expressed his “deepest sorrow” in his letter of apology to Hargrave’s family, read out in court following the verdict. “As a family man with young children,” he had written, he could begin to imagine their “heartache.” Not a day went by when he didn’t wish he could “turn back the clock,” but now he and his family had to live with what he had done “for the rest of our lives.”
The words of remorse echoed the words of grief and anger expressed by Ed Hargrave’s young widow, Sarah Woodberry: “We have been given a life sentence,” she said. She was now raising four children by herself, including the last born, Ed’s only son, whom he had never known. She had left Alice Springs as she no longer felt safe in the town where she had grown up. “There will never ever be justice for us, for those of us that are left behind. What we will continue to endure is greater than any punishment this court could possibly hand out.”
Graham Woods appealed his sentence on the basis of how Justice Reeves dealt with the issue of excessive self-defence. The Court of Criminal Appeal found that Reeves had erred in finding that it could not be a matter in mitigation. But the burden of proof was on Woods to establish he had acted in self-defence and that burden had not been discharged. The appeal was dismissed. Woods then applied for special leave to appeal to the High Court but was refused. Proceedings were finalised on 5 October 2012, three-and-a-half years after Hargrave’s death. •