Indigenous Law Resources Reconciliation and Social Justice Library

MALCOLM CHARLES SMITH - DEATH OF TERRY PERCIVAL AND ITS EFFECTS

Three weeks after returning to Dareton Malcolm committed the one major crime of his life, the killing of Terry Percival, the consequences of which were to change his outlook and personality and ultimately lead to his death.

Prior to his release on 1 August 1980 Malcolm was at Goulburn Gaol, and was receiving letters from his sister Mary Ann, who had taught herself to read and write. She was living with Joe Martin, and his sister Peggy with Terry Percival, both of whom were white. A prisoner friend, who had helped the illiterate Malcolm with his correspondence in gaol, tells that Malcolm had received letters saying that Terry was bashing his sister Peggy all the time and wouldn't leave her alone. Malcolm had told the prisoner that he would kill Terry when he was released. A brother-in-law told the Commission that Malcolm had said 'he was coming down to sort these white bastards out', which he took to mean Joe Martin and Terry Percival.

Peggy was aware of Malcolm's hostility to Terry Percival and attempted to prevent the confrontation. 'He said to me "I'm out to get your boyfriend". Someone was writing him letters in goal telling him stories about us, our problems. I told him let me work out my problems, I don't want my brother to work it out for me - let me handle it myself. She also attempted to persuade Terry Percival to stay away from Malcolm. She said that Malcolm also attempted to get Mary Ann's boyfriend Joe Martin. According to Malcolm's brother Albury, Malcolm had himself told Terry Percival that he would get him.

For present purposes the details of the crime are unimportant. Malcolm had Terry called out of a hotel, assaulted him on the footpath, and hauled his body away. At his trial Malcolm unconvincingly raised self-defence. On any view there was brutal treatment of Terry, and it may be that Malcolm was lucky to escape trial on the more serious offence of murder, with which he was originally charged. Shortly after Terry's death Malcolm must have learnt that he was wanted in relation to the murder of Terry Percival and 'went bush'. He was arrested in Victoria on 2 October and charged with burglary and stealing committed whilst in hiding, for which he was sentenced to nine months imprisonment . On completion of this sentence he was committed for trial for the manslaughter of Terry and for stealing a car. The magistrate found that there was insufficient evidence to support a murder charge.

In due course he was tried and convicted. For the manslaughter he received four years imprisonment with hard labour, to commence at the expiration of his existing sentences, which were reinstated by reason of his breach of parole. For the car stealing, he received one year's imprisonment with hard labour, to commence at the expiration of the sentence for manslaughter. The judge fixed a non-parole period expiring on 25 June 1984. In effect he added five years to existing sentences, and two years to an existing nonparole period.

-Given his experience and attitudes, the prison sentence itself probably had little impact on Malcolm and would not explain the change which came over him in his subsequent life in prison and ultimately resulted in his death. He had learnt to live in institutions, and particularly in gaols, the comparative freedom of which he preferred to the stifling conformity demanded in juvenile institutions. Already in 1973 he was getting involved in weight training and sports and was a leader to the other 'Kooris' when racism was played out in sport. A Parole Officer who interviewed him in August 1975 found him to be philosophical about his situation and at ease in the gaol environment. At Kirkconnell in 1975 another Parole Officer found him 'very popular with other prisoners and also with the prison officers quite happy making the most of the opportunities to play a lot of different sports The prison officers were very happy with him'. He was a leader in the camp and was looked up to and respected by the other prisoners. A fellow prisoner at Maitland in 1978 observed in his statement 'Mat got on real good with other prisoners, black and white. They all liked him cause he'd have a go, he wouldn't back down from anyone'. He described Malcolm as 'a leader in just about everything we did'.

A couple of times on being released he said to another prisoner 'I've got no-one outside ... I don't know anybody,. The only friends I've got are in gaol... I'll be back.' The prisoner commented 'He always was', and expressed the view that he didn't make any effort to stay out. There were many other testimonies to Malcolm's ability to cope with gaol life.

What is more likely to have affected him is the reaction of his family. For all the limitations on his family contact, it remained his one link with the world outside prison, and his only source of human warmth apart from his prison friendships. It was the prospect of seeing his family that revolutionised his' conduct at Tamworth Boys Home. When he discussed his family with a Parole Officer at Goulburn Gaol on 18 August 1975, 'he became very animated and appeared quite happy to return to where his family lived'. There were numerous other indications of a powerful emotional bond to his family.

Malcolm was not normally a violent person. His offences were housebreaking, car stealing and escaping from prison. The only other times he was charged with an assault was in late 1977 when he assaulted another prisoner and two prison officers in Bathurst Gaol within a short period. The latter assault was the day before he was to go to court, and at all times he maintained that he was feeling strange and blacked out when the officers came to give him medicine. According to expert medical evidence, such events are not uncommon amongst prisoners who feel stress and frustration in response to the accumulated pressures of prison life.

Certainly the killing of Terry Percival was quite out of character as an act of extreme, premeditated violence. But it was not the first time Malcolm had seen it as his role to protect weaker people, as witness the circumstances of his escape from Kirkconnell Prison Camp and his attempted escape from Maitland Gaol. Everything points to the fact that he was trying to assume the role of protector of the family that meant so much to him, but for which he had been able to do so little. It was an ill-advised attempt to protect his sister by a brother who, with little experience of life outside prison and none of domestic relations, completely misread and misjudged her interests and the attitude of the family generally.

But given his motivation, and the importance of his family as his only tie, however weak, to the world outside prison, the reaction of family members must have been devastating. When he was recaptured, he was taken out in the police van to Mary Ann's place. Peggy was there and her own account captures the drama and tragedy of the occasion.

'Soon as they come out there with the police van, he looked at me and I said ... oh, he went to say he's sorry. I said "Don't tell me you're sorry", I said. "It is too late to be sorry. I will never speak to you again. I will never forget this." I said, "Look you knew" I said, "I told you not to do these silly things". I said "You would not listen to me." I said "Why did you do it?" I said, "Now, I won't own you for a brother", I said "I will never speak to you again "I said, "I'm going to have this baby now, he got no father". I said, "All right, thanks for you, for doing this to me". I said "What thanks I get." '

Amongst those who gave evidence for the prosecution were his sisters Peggy and Norma, his brothers Albury and Maurice, and his father.

A psychiatrist who was asked to report at the time of the manslaughter trial was unable to detect any delusions or hallucinations or any mental illness which would have any beating on his responsibility for the offence.