Tried as an adult On March 22nd, 2007, in the Darwin Supreme Court, the Northern Territory Chief Justice Brian Martin sentenced Kyle Horace to seven years imprisonment commencing from 23rd November 2006. Kyle will serve a minimum of five years in the Darwin Correctional Centre, better known as Berrimah Prison, before being eligible for parole. Kyle was born of Aboriginal descent in Wyndham, Western Australia on 24th March, 1988. In late 2006, as a well-built adult he stood in the dock before an all-white Darwin jury, charged with the rape of a 13-year-old white girl more than three years previously, in May, 2003. He was tried as an adult, although when the alleged offence was committed Kyle was legally still a child of 15 years and two months. The police did not even move to charge Kyle until August 2005, two-and-a-half-years after the supposedly violent sexual offence that he vows he did not commit. However, the courts interpreted Kyle's protestation of his innocence as a lack of remorse. Kyle (left) at 15 with brothers

by Bill Day 17 Apr 2007

By 2006 Kyle had other preoccupations. His loving partner, a respected Darwin girl who he has known for almost five years, gave birth to their baby daughter on February 2nd, 2007, the month before Kyle was sentenced. That afternoon in 2003 when an immature teenager had clumsily experienced sexual intercourse with a girl in an empty school yard would have remained a distant adolescent regret if it had not been for a surprise visit by police to his grandmother’s Rapid Creek home in August 2005 to charge Kyle with three counts of rape. Apparently the police officer investigating the original complaint that was made on Monday May 5th, 2003, had been suffering from ‘depression after a marriage break-up,’ and the preparation of charges against Kyle had been deferred – deferred for two-and-a-half-years! Meanwhile, between May 2003 and the trial in late 2006 Kyle had committed some minor offences for which he had served a total of 56 hours of community service. There were no sexual offences recorded in this time.

The court heard that on the afternoon of Darwin’s May Day public holiday, Monday May 5th, 2003, Kyle met two 13-year-old girls waiting at a Darwin northern suburbs bus stop. One of the girls stated that her friend gave Kyle two dollars, the other girl said she did not. The judge noted in sentencing that the several inconsistencies in the two girls’ evidence were ‘of no significance.’ Kyle was said to have then asked the girls directions to a particular street. The judge noted in his sentencing:

In an effort to get rid of you, the victim agreed to point you in the direction of the street. For that purpose, the victim walked with you into the grounds of the Anula Primary School where she pointed in the general direction of the street.

Despite the claim that the girls were frightened of Kyle, the other girl waited at the bus stop until her friend returned, after the offences were supposed to have occurred. Kyle says he walked back to the bus stop with the girl and waited until their bus arrived. The school caretaker says he saw Kyle and the girl walking back together. He said they looked to him, ‘like [affectionate] lovers.’ Kyle then walked to his aunt’s house where she offered to drive him home to his grandmother’s house. He declined the offer and said that he would catch a bus. Hardly the behaviour of a 15-year-old boy who was supposedly guilty of a violent rape moments earlier!

That night Kyle’s step-father received a telephone call from his mother-in-law, Kyle’s grandmother, to say that Kyle was in the police lock-up. The man is the father of the youngest of Kyle’s half-brothers and has a particularly close relationship with his step-son. At the police station, the man asked Kyle, ‘Did you rape this girl?’ to which Kyle replied, ‘I did not rape any girl.’ (Kyle has always admitted that he had sexual intercourse in the school yard). While he was at the police station, Kyle’s step-father glanced over at the young girl being hugged by her tearful parents. He says that the girl looked across at Kyle with a grin on her face. The step-father says, ‘It must be said, the girl that I saw looked like a 20-year-old-hooker.’ Even from his prison cell, Kyle still expresses his concern for the girl who he says has lied to the court, and asks, ‘Why did she lie?’ The girl’s father works for the Australian Army and has since been transferred with his family out of the Northern Territory, so the answer to Kyle’s question may never be known.

At no time did Kyle give evidence in his defence. The defence lawyer, Allan Woodcock, advised Kyle against it. Neither did Mr Woodcock see anything wrong with having an all-white jury in a town like Darwin where there has been much recent alarmist publicity about the antisocial behaviour of gangs of ‘coloured youths.’ In court, the jury faced a grown man who was alleged to have raped a 13-year-old-white-girl from a respectable family. In contrast to the tall brown-skinned man in the dock, the prosecution painted a picture of the complainant as a naïve school girl. The girl did not appear in person. In his judgment, the judge said:

She was obviously a friendly child from a good family who lived a relatively sheltered life. This was not a young girl who had knocked around or, in the words of the prosecutor to the jury, was looking for some action. This was a young girl who liked reading, drawing, writing and going to the movies. She did not have a boyfriend - she was, very obviously, extremely naïve.

At the same time Kyle was barely 15 and shared similar interests, as would have been obvious if he had been tried in the Children’s Court, years earlier.

When Kyle was first taken into custody in May, 2003, the police confiscated his new Nike shoes that his grandmother had bought him. Despite repeated requests, he has not seen his shoes again. These shoes could have been produced by the defence in 2006, and Kyle asked to try them on. Of course the shoes would no longer fit the grown man standing before the jury. In the intervening three-and-a-half-years, the boy had become a man who was now being tried in an adult court.

The more Kyle pleads his innocence, the more it is said that he does not accept responsibility for his actions. As the Chief Justice said, ‘You continue to maintain that the sexual acts were consensual.’ But how was it that a supposedly violent rapist had been allowed to freely roam the streets of Darwin for two-and-a-half of his undoubtedly disturbed adolescence years, before being charged? And then another year before his trial. In contrast, a 15-year-old boy in Perth, Western Australia, was recently detained for eleven months after being charged with the rape of a 17-year-old-girl. The Director of Public Prosecutions opposed bail. In 2007 The Sunday Times reported (April 1st, 2007, pages 1): ‘[the boy] was dragged out of bed by police a year ago and arrested on nothing but the say-so of a lying 17-year-old girl who cried rape.’ (See also page 8, ‘He’s lost his youth’; Also The Sunday Times April 8th, page 8, ‘My 11 months of hell’; ‘DPP response,’ pages 66-67; ‘Why police laid charge,’ page 63).

At one point during his years of growing up in Darwin, Kyle was banned from the Casuarina Shopping Centre and later, when he returned, charged with trespassing in breach of a bond. Hardly a major crime! Not mentioned was the fact that Kyle was given a hiding at the back of the Centre by two security guards. Other minor stealing and loitering charges were not surprising for a boy who spent his early boyhood in an alcoholic and unstable shifting environment. At the age of eleven, Kyle was told by his mother’s partner, the man who Kyle thought was his father, that Kyle was not to call him ‘Dad’
anymore. Kyle has never known his biological father.

Fortunately, Kyle eventually returned to Darwin where he could be under the care of his sober and loving grandmother, a respected member of the Darwin community. She is actually Kyle’s grandfather’s half-sister. Kyle’s grandfather was the well known boxer and Aboriginal activist, Norman Horace, who fought internationally as ‘Kid Langford.’ Under the guidance of his grandmother during his teenage years, Kyle has participated in treatment programs for children of alcoholics and for his own alcohol and drug abuse. Testimony was given at the trial that he responded positively.

When Kyle’s grandmother entered the court to give her evidence she was not even aware that it was to be a Supreme Court with the all the intimidating paraphernalia of wigs and gowns and an all-white jury sitting in judgment. The police had raided her home several times over the years at all hours, once at 2am, and disrespectfully called the anxious elderly woman, ‘Nana.’ The whole experience has been extremely stressful for her and will continue to affect her health as long as her grandson is in Darwin prison.

Kyle’s defence was provided by NAAJA, the body that has replaced the North Australian Aboriginal Legal Aid Service. Otherwise the lawyer did not view the case as a racial matter. Perhaps he was influenced by his background as a prosecutor. However, the trial of a boy of Aboriginal descent on a charge of the rape of a 13-year-old white girl should not have been heard before an all-white jury in Darwin. Equally, a boy who offends should not be tried as a man in an adult court. This is double prejudice against the accused. Also the Chief Justice had something to prove after the public reprimand he received following his judgement in the previous sexual assault case. Kyle and his grandmother were caught up in something they did not understand, and still cannot understand.

The Chief Justice said on March 22nd:

The sentence in total would have been longer if you had been a mature adult or if you had previously offended in a significant manner. I have no power to suspend part of the sentence… the Criminal Code has directed the Court to impose a non-parole period of not less than 70 percent of [the total period of imprisonment of seven years]. This is a reflection of the community’s concern about these types of crimes and the need to protect the public. I fix a non-parole period of five years…

As for many Indigenous youths, justice has not been done nor seen to be done in the case of Kyle Horace. We ask your support to free Kyle.

Note: There will be a further statement when the full transcript of Kyle’s trial and committal hearing becomes available.

Contact:

PO Box 425

Maylands WA 6931

Email to: