Relatives of three Indigenous children murdered in Bowraville almost 30 years ago are heartbroken after a failed bid to have the cases tried together.
A man in his 50s was previously acquitted at separate trials of murdering two of the children: Evelyn Greenup, 4; and Clinton Speedy-Duroux, 16.
This week the NSW Court of Criminal Appeal dismissed an application to have the acquittals overturned and a new trial ordered.
No one has ever been charged with the murder of 16-year-old Colleen Walker, and the families were hoping all three cases could be heard together.
NSW Attorney-General Mark Speakman is now considering whether to take the case to the High Court.
One of Clinton’s nephews, Marbuck Duroux, said he was "devastated" by the decision and vowed to continue fighting.
“We’re going to have to assess the situation and see what’s best for us to do,” he told NITV News.
“It’s not over. It’s never over.”
He protested the decision on Thursday by leaving a series of white ochre handprints on the windows of the Law Courts building in Sydney.
“It was important to show to people that we have that next generation who is ready and more than willing to get up and stand up and fight for what we believe in, what we know is right,” Mr Duroux said.
“This is just showing that we’re not going nowhere. The next generation is here and willing to pick up the fight if need be.”
Evidence put before the appeal court showed police continue to suspect the man, who has protested his innocence, was responsible for all three murders.
“The court was not required to form and has not formed any view as to the guilt of the respondent in respect of any of the deaths,” NSW Chief Justice Tom Bathurst said.
The application to order a retrial was instead rejected on technical grounds which included that the evidence involved was not 'fresh' because it was previously available to prosecutors even if it had not been admitted in court.
If a retrial had been granted, it would also have set a national precedent challenging the historical 'double jeopardy' protections that prevent a person being tried for the same crime twice.
“The court recognises that this conclusion does deprive the families of the three children and the Bowraville community of the closure which they justifiably seek,” the Chief Justice said.
“Nonetheless, the court in fulfilment of its duty is obliged to give effect to the terms of the statute as it has construed them.”
Professor Larissa Behrendt, Director or Research with Jumbunna, told The Point she has watched the families "continue to fight with love and determination for their children".
“They were told to forget a parliamentary inquiry which they got, they were told they would never get the case into the court of criminal appeal, which they did," she said.
“I would say to anyone who thinks this is the end of the road for them, you don’t know these families, and they always have a plan B, and they’re going to continue fighting.”
Attorney-General Mark Speakman said he would seek legal advice about the prospects of applying for leave to refer the case to the High Court.
"I'll be urgently considering what remedies are available either legislatively or in court in the coming days," he said.
- With AAP