How justice failed Gene Gibson

Tim Clarke, Legal Affairs EditorThe West Australian
Gene Gibson walks out of Casuarina Prison.
Camera IconGene Gibson walks out of Casuarina Prison. Credit: Justin Benson-Cooper

A fresh hunt for the killer of Josh Warneke is under way after an illiterate, cognitively impaired Aboriginal man convicted of his manslaughter was set free when WA’s highest court ruled he had been the victim of major miscarriage of justice.

Having served five years behind bars, Gene Gibson, 25, left Casuarina Prison yesterday, after WA's Court of Appeal ruled unanimously his conviction for the 2010 manslaughter of Mr Warneke, 21, was unsafe.

The decision, handed down less than a week after an appeal hearing was completed, prompted WA Police to voice their regret, Mr Warneke's mother to voice her anger, and justice advocates to call for more reform to protect the most vulnerable in the State’s justice system.

More than seven years after Mr Warneke’s body was found on the side of Old Broome Road, Broome, it took less than seven minutes for three judges to send the bungled murder investigation back to the beginning.

Broome man Josh Warneke was killed while walking home from a night out in 2010.
Camera IconBroome man Josh Warneke was killed while walking home from a night out in 2010.

Police Commissioner Karl O’Callaghan admitted the re-investigation had begun weeks ago after police correctly anticipated the appeal decision.

"Police were only part of a system or one part of a system that failed Josh Warneke, Gene Gibson, the men’s families and the broader community,” Mr O’Callaghan said.

“We deeply regret how our failures contributed to this and have tried to set things straight.

“We will reinvestigate the whole thing from the bottom and start again. We will have some leads already.”

Michael Lundberg, partner at law firm King and Wood Mallesons, which ran Mr Gibson’s appeal, said there were no winners in the case.

“Josh and Gene have never met, but their lives are now intertwined,” he said.

“There is also the reality that the life of another young man, Josh Warneke, came to an end in Broome seven years ago.

“We wish to acknowledge in that regard Josh's mother, Ingrid Bishop, who has publicly supported our client’s cause, and we hope in the future she obtains the justice she and her family deserve.” Ms Bishop, who attended last week’s appeal hearings, said Mr Gibson’s release was “one of the most profound moments of my life”.

“I have said over the past several years Gene is innocent,” she said.

“I wish Gene, (his mother) Alamay and his family all the very best as they start the next stage of their lives, and wish them strength and courage as they begin to heal and rebuild.”

She was highly critical of the Aboriginal Legal Service which defended Mr Gibson.

“The very agency tasked with protecting and supporting Gene failed, and failed dismally, and has taken the process of justice back 50 years for Aboriginal Australians,” she said. Premier Mark McGowan said a modern justice system should not fall down because people didn’t understand the language or suffered mental impairment.

He said it was too soon to anticipate a potential ex gratia payment to Mr Gibson, similar to those granted to Andrew Mallard, Darryl Beamish and John Button.

Mr O’Callaghan revealed three of the police castigated over their role in the initial investigation had not accepted blame and would now face an internal disciplinary process.

The police union said its members “are remorseful, regret the part they played and have accepted their role”.

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