Murder conviction quashed … Acquittal verdict by CCA in the case of a refugee where vital evidence was not disclosed at trial by the prosecution … DPP orders an investigation into prosecution failures … Justin Pen reports from ringside 

The NSW Court of Criminal Appeal has overturned the conviction and entered a verdict of acquittal in favour of “JB”, a Sudanese refugee who, at 15-years-old, was convicted of the murder of Edward Spowart in 2008.  

The acquittal comes after the crown’s key witness, a support person known as “A107” to whom JB allegedly confessed, was revealed to be a registered police informer. 

A107’s compromised role was known to the prosecution and the accused’s solicitor at the time of the trial, but not disclosed to JB’s barrister. 

A107 claimed that JB had confessed to stabbing the victim, something the accused repeatedly denied. 

The crown’s case against JB all but hinged upon the “confession” made to A107, who accompanied him at the police station. The police had arranged for the informer to see the boy on his own while being detained, without any disclosure. 

At the time A107 was facing charges of defrauding victims of $40,000 and largely as a result of his “assistance” in JB’s case he received a suspended sentence. 

JB’s solicitor, Robert Kaufmann, also acted for A107 in the fraud proceedings. The prosecutor who allegedly did not reveal the conflicted position of his prime witness was Terry Thorpe. 

The NSW attorney general submitted that there should be a referral to the CCA under the Crimes (Appeal and Review) Act, saying that there was a non-disclosure by the crown prosecutor and instructing solicitor, non-disclosure by the police and “an undisclosed conflict of interest” by Robert Kaufmann. 

Kaufmann told the ABC that he rejected any suggestion that he was conflicted, either during JB’s trial or his initial appeal.

No doubt the plods at the Law Society are investigating. 

The DPP, Lloyd Babb, has ordered an inquiry into the conduct of the case. The coppers are also conducting an internal investigation, with a spokesmodel saying:

“As a result of the acquittal of JB, the NSW Police Force has become aware of the apparent non-disclosure connected with the matter.”  

Spowart was stabbed to death amid a brawl, involving nearly a dozen men, at Granville on April 21, 2008. 

The trial judge found that the deceased was “exposed, unarmed and unprotected”.  

JB was convicted and sentenced to 23 years imprisonment, with a non-parole period of 16 years. He had served almost seven years before the CCA quashed his conviction.  

Notes from a meeting between the prosecution and A107, provided to JB’s barrister, “appear[ed] to have been edited” and failed to mention that the crown’s key witness was a registered police informer. 

Without A107’s tainted evidence Cliff Hoeben CJ at CL, who delivered the principal judgment, said that the crown’s case “would not be a strong one”. Instead of ordering a retrial, he determined that “the interests of justice require that a verdict of acquittal be entered”. 

The trial heard that JB, who was intoxicated at the time, approached Spowart near Granville Station and asked the deceased for a cigarette. Spowart rebuffed him and told him to go to home. The trial judge, Megan Latham noted: 

“Apparently reacting out of a wounded sense of pride, the offender [JB] threw a punch.” 

This became the catalyst for the fatal melee between JB and his group of friends, and five other men described as being “of Islander appearance”. Spowart, though in the presence of the other men, was an innocent bystander to the brawl. 

JB was unsuccessful in appealing his conviction to the Court of Criminal Appeal (Whealy, Hislop and Grove) and unsuccessful again in seeking special leave to appeal to the High Court.  

In 2014, after all avenues of appeal had been exhausted, the matter came before R.A. Hulme J, who determined that the whole of JB’s case should be referred to the Court of Criminal Appeal under s.78 of the Crimes (Appeal and Review) Act. 

If the court found there was insufficient evidence at the original trial to warrant a conviction, or if evidence available at any new trial would be insufficient, then JB would be entitled to an acquittal as of right 

Hoeben, reviewing the dregs of remaining evidence, noted: 

“The strength of the crown case has undoubtedly been greatly diminished by the absence of the evidence of A107, which was pivotal to the conviction of JB at trial.”

Auditing the available witness and documentary evidence, the CCA observed an abundance of inconsistencies. CCTV footage showed, “there was no evidence of anyone, in particular JB, producing a knife at the time of the initial altercation on the platform at the Granville station”.  

The remaining three eyewitnesses, JB’s antagonists in the brawl, gave unreliable accounts of the description of the knife-holder. In an additional blow to the prosecution, the crown was unable to produce any reliable witnesses to the stabbing itself. 

“Once the evidence of A107 is taken out of the picture, there is evidence that at least two, if not more of [JB’s] group, had knives,” Hoeben said. 

The crown contended that JB had admitted to Ringo Madut, a member of his group, that he had been involved in Spowart’s stabbing. However, Hoeben noted that Madut, who received a discounted sentence in exchange for giving evidence on behalf of the crown, “had a direct interest in not only exculpating himself … but in implicating JB”.  

Auxiliary attacks on the crown’s case came from the considerable passage of time, between the events of 2008 and the present day. Hoeben said: 

“Almost eight years have passed since the offence occurred. The memories of the witnesses, many of whom were young, were adversely affected by liquor. Those memories were not particularly good at the time of trial and would have further deteriorated …  

In the circumstances, the anxiety and hardship associated with a re-trial would be substantial.”  

Lucy McCallum J dissented from the findings, asserting that it was rash to acquit JB without first hearing the crown’s “fresh and new evidence”. 

“With great respect,” her Honour chided Hoeben for his “expedient” approach to the matter. 

She pointed out that Madut, in particular, was unable to confront the allegations made against his reliability as a witness. 

McCallum, however, was at pains to stress the injustice JB endured over eight years, but she was “not persuaded that the court can enter a verdict of acquittal by the process proposed”.  

“I wish to record that I have reached this conclusion with a measure of reluctance because, as already indicated, I apprehend the orders proposed by the chief judge may well reflect the outcome that is ultimately just in this case.”

Michael Adams J, who concurred with Hoeben, said that the prosecution did not deserve a “second bite at the cherry”.  

Unmoved by the prospect of any “fresh and new” evidence from the crown, Adams said that it was “unlikely” that a jury would accept the prosecution case. 

“It is clear that it [the crown’s evidence] does and could not strengthen Madut’s credibility, whilst the involvement of Mr Kaufmann – as to which the evidence is not in dispute – adds a troubling feature.” 

A large compensation claim surely looms.