A 15-year-old boy was charged with homicide and spent nearly a yr in custody after Victoria police detectives used a course of described by a choose as “corrupted” to assemble proof in opposition to him and disregarded data pointing to different suspects, a Guardian investigation has discovered.
The case then collapsed throughout a pre-trial listening to through which the choose stated she was “incredulous” that the prosecution was pushing forward with it regardless of flaws within the proof used to determine the boy because the assassin. She described police conduct in investigating the case as “remarkable”. The homicide cost was later withdrawn.
Homicide sufferer Aguer Akech was 17 when he died at a Melbourne railway station in 2019. Though no motive was established, detectives suspected one risk was that he could have been killed as a result of he had beforehand been a police witness.
However some law enforcement officials concerned within the investigation can’t be named due to a broad Victorian regulation stopping the identification of witnesses in circumstances that originate within the youngsters’s court docket.
The case sheds new mild on how Victoria police pursued youth offenders of African-Australian background and supplies one other extraordinary instance, within the wake of the Lawyer X and Jason Roberts controversies, of the pressure failing to correctly disclose proof to an accused.
Elementary flaws within the case
Aguer was fatally stabbed throughout a battle at Keilor Plains station three days earlier than Christmas in 2019.
The 15-year-old accused, who can’t be named for authorized causes however who Guardian Australia will give the pseudonym James, was charged with homicide in Might 2020. He was launched nearly a yr later after his attorneys revealed a collection of basic flaws within the case. The prosecution was discontinued in mid-2021.
Most of the failings within the murder investigation have been solely uncovered after police had spent months withholding hundreds of paperwork from the boy’s attorneys on the grounds that they have been too delicate to be offered.
These paperwork confirmed that detectives used flawed identification proof within the case, whereas on the identical time failing to analyze different suspects who had been nominated.
Detectives suspected one potential motive for Aguer’s loss of life was the truth that he gave proof to police in opposition to different youths who he alleged have been his co-offenders in one other crime dedicated solely months earlier than he was stabbed.
His father, Lual Akech, feels Aguer was failed twice by the pressure: first, as somebody who trusted he can be protected after offering data to police, after which because the sufferer of an unsolved crime.
“There’s no justice,” he advised Guardian Australia.
Lual and a few folks acquainted with James’s case consider the justice system failed each boys partially due to their race: the pair have been South Sudanese-Australian.
Whereas the race of the boys was not raised as an element within the case within the a whole lot of pages of paperwork seen by Guardian Australia, lawyer and researcher Dr Tamar Hopkins stated Victoria police had a historical past of treating folks of African heritage in a different way.
“Police are far more willing to distrust African young people than anyone else, and bring cases against them where there’s very little evidence to support the actual charge,” she stated.
Victoria police rejected any suggestion that race influenced their investigation.
The case additionally represents one other instance of Victoria police failing in its obligations beneath a authorized course of often called disclosure, which requires them to supply the accused with all related data they maintain in an inexpensive timeframe so it may be utilized in defending the costs.
The pressure has been made to reckon with its dealing with of such issues as a part of the Lawyer X and Jason Roberts controversies.
On this occasion, the pressure additionally didn’t declare it had data nominating different suspects within the case.
Victoria police stated it handled disclosure issues with the “utmost importance” and ensured all staff complied with their authorized obligations.
Different suspects not pursued
Court docket paperwork and transcripts reviewed by Guardian Australia present that seven different boys have been nominated to the murder squad as suspects, together with boys recognized by police from CCTV of the battle which concerned about 30 youths.
These suspects included a boy who a witness alleges threatened to kill Aguer on the practice station the evening of the homicide, and who was allegedly seen by one other witness holding a knife. Police have been advised by one other witness that the boy had bragged about getting away with homicide on social media after the stabbing loss of life.
The DNA of one other suspect nominated to police had been discovered on a automobile which was linked to the homicide.
Detectives who have been thought-about by police to be consultants in figuring out youth offenders from the north-west additionally stated that CCTV of the crime scene that the murder squad believed confirmed James truly confirmed two completely different boys.
The lead investigator within the case later advised the supreme court docket beneath cross examination that these suspects have been both not thought-about or eradicated. In some situations, police had no data that proof such because the suspect bragging on social media about murdering James had been investigated in any respect, he advised the court docket.
Police haven’t discovered the homicide weapon, there was no forensic proof linking James to the crime, and detectives had no witnesses who had stated that they had seen James stab Aguer, and even holding a knife, the court docket heard.
The police case basically rested on two factors: that CCTV footage of the crime confirmed what police stated it did, and that the individual within the footage was James.
However Justice Elizabeth Hollingworth, who presided over James’ pre-trial court docket hearings, stated police had nearly no proof to show these factors, regardless of the prosecutor earlier claiming to the court docket that they did.
“I am just sitting here incredulous, I … can’t think when I’ve had a case like this,” Hollingworth stated.
“I am incredulous that this is proceeding quite frankly … we haven’t had a single person identify [James as being] there.
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“You might remember that I said innocently and quite naively [at an earlier hearing] ‘are we going to get to some witnesses who are going to identify James?’ and I was told CCTV footage would reveal it and of course the CCTV footage is fraught with ambiguity about where things happened and who it might have been.”
Hollingworth was commenting on the finish of s198B hearings, a court docket course of through which attorneys for an accused can look at prosecution witnesses at a separate listening to earlier than a full prison trial begins.
Police relied on statements from seven completely different officers to determine James from CCTV.
Whereas footage of the battle was, because the choose alluded to, of poor high quality, clearer photographs had been taken from different cameras on the station of boys who police suspected have been concerned within the battle, together with James.
Police are required to comply with a strict course of for taking id statements that protects the integrity of the proof.
Beneath this course of, they need to flow into a picture or footage with out further data that might reveal who a suspect is. If somebody believes they’ll determine the individual, they put together a press release.
The method is designed to protect the integrity of witnesses.
The method was not adopted in relation to seven statements offered by police who claimed to have been capable of determine James from the footage, court docket paperwork present.
The court docket heard that some police made a vital omission from the identification statements they offered. These police stated that they had independently recognized James within the CCTV footage, however uncared for to say that they had already been advised James was a suspect.
“To have gone through the process that they went through of not … [showing witnesses] photo boards, not asking any of the witnesses for any identification, and to have gone through – and I use the word corrupted advisably – it’s quite a corrupted process of obtaining police statements, is remarkable in my experience, quite remarkable,” Hollingworth stated.
“Quite frankly – every time [the officer in charge of the investigation] comes up with an answer and I think it can’t get worse, it has. It’s an extraordinary prosecution.
“I use the word remarkable and extraordinary advisably. I can’t think of when I have seen a prosecution that has proceeded in this manner.”
A number of of those officers who took half on this “corrupted” course of beforehand handled James as a part of Operation Wayward, a youth crime taskforce targeted on Melbourne’s north-west which championed “proactive policing”.
Paperwork seen by Guardian Australia present that murder squad officers relied closely on intelligence gathered by the taskforce as a part of their investigation.
Not one of the officers concerned within the case who appeared in court docket as witnesses may be named due to a piece of the Youngsters Youth and Households Act that restricts the publication of “any particulars likely to lead to the identification of a witness in the proceeding” with out the permission of the president of the court docket or a Justice of the Peace.
Q&A
Why can’t the Guardian identify police witnesses on this case?
Present
Victorian regulation accommodates strict provisions designed to guard younger people who find themselves concerned in youngsters’s court docket proceedings.
The Youngsters Youth and Households Act makes it an offence to publish any “particulars” prone to result in the identification of a kid or witness to a continuing within the youngsters’s court docket, or arising from a continuing in that court docket.
However, within the case of Aguer Akech, that regulation additionally protects the id of law enforcement officials concerned in a prosecution described by an “incredulous” supreme court docket choose as “extraordinary”.
As a result of the case originated within the youngsters’s court docket, it means the officers who have been cross-examined as prosecution witnesses throughout pre-trial hearings within the supreme court docket can’t be named.
That is regardless of seven of these officers having severe questions raised about their proof by attorneys for the accused within the case, and the choose within the matter, Justice Elizabeth Hollingworth, agreeing that the police had engaged in a flawed identification course of.
The id of kids’s court docket witnesses, and the situation of the court docket itself, is protected beneath part 534 of the act.
Whereas this prohibition is comprehensible in relation to some grownup witnesses, similar to members of the family of youth offenders, the chance that naming a police officer would in flip result in the identification of a kid is probably going minimal.
Any breach of that part carries a most penalty of two years’ jail or an nearly $20,000 advantageous for people, and an nearly $100,000 advantageous for physique corporates.
Moreover, the Victorian Open Courts Act, which is designed to manage what data is out there within the state’s court docket system, expressly states that it doesn’t apply to this part, making purposes to problem it troublesome.
Permission may be granted by the president of the kids’s court docket or a Justice of the Peace to elevate the prohibitions, however to ensure that a Justice of the Peace to take action they have to be glad that the circumstances “giving rise to the request” are an emergency, and that publication is critical for the protection of a kid or different social gathering to the continuing, or to another individual locally.
Victoria police stated it was restricted in what it might particularly say in relation to the case because the murder squad investigation remained “active and ongoing”.
“Victoria police completely refutes any allegation that this investigation was improperly conducted. It was a difficult and complex matter, and one we are still committed to resolving for the victim’s family,” a spokesperson stated.
“It is certainly not correct to suggest that the cultural background of the victim had any impact on the work of, or the level of commitment from, homicide squad investigators.
“The squad is staffed with dedicated and experienced detectives who are fully committed to providing justice for families impacted by these violent crimes. Every victim is afforded a full and thorough investigation regardless of their background and circumstances.”
Concerning disclosure, the pressure stated “advice was sought on a number of occasions from the [Victorian government solicitor’s office] and a significant amount of time was required to undertake redaction of a large amount of material”.
The Workplace of Public Prosecutions stated that through the s198B hearings “evidence was adduced which revealed a number of important deficiencies in the identification evidence”.
“Following the s 198B hearings, the case was thoroughly and expeditiously reviewed again. As a consequence of that review, the Director of Public Prosecutions formed the view that there were not reasonable prospects of conviction,” an OPP spokesperson stated.
“Accordingly, the prosecution was discontinued. The basis of the decision to discontinue the prosecution, including deficiencies with the identification evidence, was communicated to Victoria police.”
The spokesperson stated that disclosure obligations have been shared between investigators and prosecutors, however that typically “the role each party plays in assessing whether all relevant material has been disclosed will depend on who has possession of the information.”
Are you aware extra? E mail nino.bucci@theguardian.com
