“It’s sort of like when you think of Atlas holding up the planet,” says Terry Irving, an Aboriginal man from north Queensland who spent four-and-a-half years in prison for a bank robbery he did not commit, and half his life trying to carry that weight on his angular shoulders.
In Greek mythology, Atlas was sentenced to hold aloft the heavens for eternity. Irving was given seven years and five months, no prospect of parole, for the robbery of $6,230 from an ANZ bank branch in Cairns in 1993. A jury took 10 minutes to find him guilty.
“I felt like Terry holding up the judicial system, trying not to be crushed by it,” Irving says.
“I spent 1,671 days in custody, and there were numerous times in there where I thought I’d never get the chance to walk through the gate. It’s affected me in more ways that I can probably describe. There’s a gap of five years in my life, five years in everyone’s lives that I’m connected to, because of what happened.
“Now there’s times when I’m sitting on my own and I reflect upon the enormity of the grief that I feel but that I don’t show. I wish I never had that baggage. But it does exist.”
Irving was released from prison by the high court in late 1997, after the state of Queensland conceded he had not received a fair trial. The chief justice, Sir Gerard Brennan, said he had “the gravest misgivings about the circumstances of this case” and that it was “a very disturbing situation”.
But for Irving, who is now 67, justice did not arrive the day he was exonerated. It would take another 25 years.
‘There’s no justice in Queensland’
The first 37 years of Irving’s life story flash by in fast forward. He takes less than a minute to skip ahead through that time – growing up in Sydney and working a series of physically demanding labouring jobs, from construction to fruit picking. It’s like in Irving’s world time began to move differently on 19 March 1993.
That day he walked into the Oceanic Hotel in Cairns and began speaking to a couple of blokes he’d met playing in pool competitions. One of them asked to borrow his car, a grey Isuzu Bellett, for 10 minutes. They returned a few hours later.
The same afternoon a man wearing a beret, dark glasses and a scarf partially covering his face walked into the ANZ bank branch in Harley Street, Portsmith, with a sawn-off shotgun and carrying a yellow sports bag.
Irving was driving home from the Oceanic when he first heard about the robbery on the 5pm radio news. The suspect was Filipino, in his early 20s and driving a purple Toyota, the radio report said. Towards the end, it gave the registration of a car that had been seen in the area.
“It turns out that was my registration number they were broadcasting,” Irving recalls. “But I didn’t think anything of it at the time because neither of the guys that I’d lent the car to were Filipino. It wasn’t saying this car was used in the robbery, it was just seen in the vicinity [so] I didn’t think anything of it.”
The next morning, the Cairns Post, quoting a police officer, said the man who robbed the ANZ bank was “about 183cm tall, in his early 20s, of medium build, and with an olive complexion and was wearing his black hair in a pony tail”. Irving was considerably older and shorter (37 and about 175cm).
The next he heard about the robbery was eight weeks later, when two officers drove out to Atherton, where he was working, to ask him about the car.
“There was never any recording of this conversation [declared by the police] except what these two coppers said that they sat down hours later and reconstructed,” Irving says.
Irving was arrested as an accessory to the robbery. Police opposed bail, claiming that he had six “fail to appear” offences on his record (it later emerged this was incorrect). While held on remand, he was investigated and charged as the bank robber.
“My family didn’t know where the fuck I was, I was unable to communicate with any of them,” he said. “I had had life experiences earlier in my life as a juvenile in New South Wales and apparently this is what led them to me, the fact that I had a … juvenile history. It triggered so many bad memories, being locked up, isolated … so vulnerable, unable to do anything about it.”
On the morning of his trial, in December 1993, Irving was led through the foyer of the courthouse in handcuffs. He says he was frustrated that morning – his lawyer had pulled out at the last minute due to a conflict in his schedule, and sent a colleague in his place.
“I was just in an agitated state and yelling out to people: ‘there’s no fucking justice in Queensland, look at this, this is bullshit’. You know? They walked me into the courtroom, took the handcuffs off me and called in a panel of jury members. These are the people I’ve just been walked past in the foyer.
“And I just … that feeling of being crushed returned again. I was there, but I wasn’t there, you know, I couldn’t do anything.”
A chance meeting and a case full of holes
Michael O’Keeffe remembers the “cranky” medium-security prisoner who approached him, on his first visit to the Stuart prison, in August 1994.
O’Keeffe had just moved to Townsville after being appointed the senior lawyer at the local Legal Aid office. Irving had been denied Legal Aid funding for an appeal four times.
O’Keeffe asked: “What’s your problem?” Irving replied: “Fuck. Problem?” and began recounting his grievances.
Naturally, they are still close friends almost 30 years later.
Irving recalls: “The people that I was asking for help … it was like somebody on a beach looking at somebody drowning and saying, ‘I’ll help them’ and then stopping, because they can’t swim.
“Michael said he’d make an appointment and come back. And I said to him, ‘well, that’ll be the test, because no one’s ever returned’. And Michael’s been with me ever since, counselling me along the way, inspiring me, encouraging me and all the legal advice that goes with that. It’s been just amazing. He’s a lifesaver. He can swim.”
O’Keeffe took on the case pro bono. He says he knew right away that Irving was telling the truth.
“You have these in-built bullshit detectors after years of being in criminal law. And I could tell this was true and I could see the defects [in the case] emerging early on.”
Questions had begun to emerge about the evidence used to convict Irving and the conduct of police.
The prosecution case against Irving relied on the formal statements of three witnesses who identified him from a photo board containing the images of 12 people, all wearing dark glasses.
But audio recordings of the witnesses taking part in the photo lineup – recordings used to support Irving’s high court appeal – reveal them wavering or unclear when shown Irving’s picture.
One witness who implicated Irving was initially recorded saying he “sort of looks as though it might be [the robber] to me, but…”. Another said his skin colour looked similar, but that “I am not sure”. The third was recorded saying: “but I am not – I wouldn’t say yes, that was him, not at all”. Their statements were written up saying they believed Irving was the man who held up the ANZ bank.
The recordings also reveal that several other witnesses took part in the photo lineup and said they could not identify the robber from the images. Irving’s lawyers told the high court police took no formal statements from them.
On 8 December 1997, O’Keeffe rang Irving to inform him the high court had thrown out his conviction instanter, immediately after verbal submissions. He was released on bail until the state decided to discontinue the case, rather than seek a retrial, the following year.
“And I just looked around and I was like, ‘I’m not happy’,” Irving recalls. “This has just taken five years out of my life and I’m walking out now, I’m on bail.
“The fight has just started. I’m coming off the 10-yard line in a race that’s already been bloody run. So I try to take a step forward, a step towards happiness. And happiness has taken all this time. It was only on the 17th of June [last year], I smiled and I thought, it looks like there is some justice coming in Queensland.”
A system stacked against exonerees
Irving walked out of the Stuart prison penniless and found it nearly impossible to find work. A Centrelink employee advised him: “Just don’t tell them you were in jail.”
“The only people around me then were ex-prisoners, long-term unemployed people, drug addicts and homeless people,” Irving said in a victim impact statement, tendered to the supreme court.
“We all shared tears of despair. My vulnerability meant I fell into this circle and suffered the consequences of this as well.”
Under Queensland law, which is similar to other Australian jurisdictions except the ACT, there is no statutory legal remedy for a person wrongfully convicted or imprisoned, even in circumstances where they have clearly been mistreated. Since 1983, Australia has declined to ratify the relevant UN treaty provision – it is the only democracy in the world that refuses to do so.
“The whole system is stacked against the exoneree right from the beginning,” says O’Keeffe.
When Frank Alan Button, an Indigenous man convicted of rape but freed on delayed DNA testing evidence, was exonerated in 2001, a judge said it was “a black day for justice”. Button served 10 months in prison in Queensland and has never been compensated.
Neither have Arthur Langlo and Glen Nuggins, also Indigenous men from Townsville, who both served more than two years for manslaughter before being freed by the Queensland court of appeal in 2013. Their application for restitution was rejected by the state in 2016.
Only one person in the past 30 years – the former Queensland chief magistrate Di Fingleton – is known to have been awarded an ex gratia payment for wrongful conviction and imprisonment in Queensland.
“Di Fingleton was appallingly treated, just as Irving, Button, Langlo and Nuggins were,” O’Keeffe says. “But there are no discernible factors that differentiate Di Fingleton’s case from these other … victims of wrongful conviction, except that she is white.
“The suggestion arising from these fundamental case studies is that systemic racism unfortunately infects the perpetuation of Queensland wrongful convictions for First Nations people.”
The UN Human Rights Committee, in 1999, said Irving had been subject to “a miscarriage of justice” and questioned whether the state was breaching its international obligations by refusing compensation. The same year the Queensland Criminal Justice Commission found that the officer who arrested and prosecuted Irving “had not been guilty of any criminal offence, but her conduct was far from optimal”.
The Queensland government instigated a judicial review of the case, but abandoned the process in 2009, forcing Irving to sue. The process has taken years.
In December 2021, the Queensland court of appeal ruled that Irving was maliciously prosecuted on the initial accessory charge, during which time he was held on remand and investigated for the armed robbery.
The decision was confirmed in June, when the high court dismissed an appeal application lodged by the state of Queensland. The amount of compensation is yet to be determined.
The fight has dragged on so long that O’Keeffe, who was the best man at Irving’s wedding and has remained close friends with him, retired and sought out national firm Maurice Blackburn to run the case. Now 70, he remains involved on the legal team as an assistant.
A chunk of life that cannot be replaced
In his victim impact statement, Irving recalls his first few weeks on remand at the Lotus Glen prison, in the hinterland near Cairns. He says he sought the advice of an older man, who had been in and out of prison, about how to handle being wrongly accused.
The old prisoner’s advice: “To avoid disappointment, expect nothing.
“The court system is a weapon for the exclusive use of the police to screw the needy,” he told Irving. “You can’t fight the system, it is designed to absorb those who stray into it, run them through a blending process in prison, then through the sausage-making machine and deliver a reconstituted product for release, to please the community’s social requirements.”
Over the years, Irving has done a few interviews but, on legal advice while his civil claim dragged on, his comments have typically been relatively brief and guarded. We spoke in a Townsville motel room, with a makeshift recording setup consisting of a microphone balanced on a bedside lamp. His voice shook a few times, then steadied and hardened as the conversation turned to the idea of justice – something he has thought deeply about for almost 30 years.
It seems he’s been through that same emotional cycle over and over. Almost broken by the experience; then somehow dragged himself back from the brink, determined not to give in.
Irving says there were times in prison where he was certain he would not leave; then he found a source of strength in helping others inside with their appeals, or getting assistance. He recalls being deeply affected by a death in custody during his time at the Cairns watchhouse, and by the plight of fellow detainees.
“I guess each time I was able to overcome my own sense of bloody worthlessness, was a belief that … if nobody does anything, nothing changes. And I guess I was trying to demonstrate that as much as I could while I was inside. Everybody I met I tried to encourage them to believe that there is a possibility of having a better life.”
He is most emotional remembering how his two sons, aged seven and five at the time of his conviction, would come to visit him at the prison in Townsville.
“Their mother got a job offer over in WA. I begged her to take it and go away, because I could not ... it was hard enough me being in there, let alone me seeing my boys,” he says.
“I look at the impact on my life. I look at the impacts on Michael and myself, but also look at my boys. There’s a chunk of me not in their lives. I can’t correct any of that. I can’t fill that void in their lives. I cannot.
“I’ve got to hold true to my intent. I asked when I got out of prison, I just asked for an apology. I asked for an inquiry to ensure that this incident, these events never happened in anyone’s life, and I asked to be compensated in some way.
“And here we are. I’ve been alive for about 23,000 days. And 11,000 of those days have been spent involved in this.”
