AN EVEN STRONGER CASE - DAMNING DIARY ENTRIES AND TWO EMINENT JURISTS
The massive publicity in the Weekend Australan of April 2 2022 not only resulted in gaining access to the diary of Arthur Pickering QC but also resulted in two more fronts opening in my battle for justice.
Mike Ahern, the former Queensland Premier who has since died, put me in touch with retired Queensland District Court judge Warren Howell who had always believed there were problems with the Bailey case and had, while a barrister, clashed with Detective Glan Hallahan, saying: "In cross-examining GP I would throw the book at him and never knocked a chip off him.”
And Warren put me in touch with retired barrister Frank Lippett, who had once been a detective with personal knowledge of Hallahan's corrupt behaviour."
I believed the diary entries and the opinions of two such eminent jurists made it essential to submit an addendum to the February 2022 petition.
ADDENDUM TO THE PETITION TO HER EXCELLENCY MS FRANCES ADAMSON AC, GOVERNOR OF SOUTH AUSTRALIA, FOR A POSTHUMOUS PARDON FOR, AND QUASHING OF, THE CONVICTION OF RAYMOND JOHN BAILEY, FOUND GUILTY OF THE MURDER OF THYRA BOWMAN ON MAY 20 1958 AND HANGED ON JUNE 24 1958.
Addendum dated May 2022
CONTENTS
1) PREAMBLE
2) DIARY ENTRIES RELATING TO ITEM 9 OF THE PETITION
3) PRIORITY GIVEN TO ANOTHER BRIEF
4) SOCIAL OCCASIONS TOOK PRECEDENCE OVER THE BRIEF
5) EXCESSIVE ALCOHOL CONSUMPTION, MENTAL AND PHYSICAL IMPAIRMENTS
6) "A ROTTEN LABORIOUS WAY OF EARNING A LIVING"
7) SUMMARY OF ARGUMENTS ADVANCED IN THIS ADDENDUM
8) SIGNATURES
SUBMISSION BY WARREN HOWELL
STATEMENT BY FRANCIS LEONARD LIPPETT
EXTRACTS FROM THE 1958 PERSONAL DIARY OF ARTHUR PICKERING QC
A1. PREAMBLE
A1.1) This addendum relates to item 9 of the petition submitted in February this year but also includes a submission by retired judge Warren Howell and a statement by former head of Queensland Parole Board Francis Leonard Lippett.
A1.2) Item 9 deals with evidence from the R v Bailey trial which shows defence counsel Arthur Pickering QC failed in his duty to his client.
A1.3) Additional evidence of this aspect of the petition has come to light through revelations in the personal 1958 diary of Pickering which has been made available by his grandson, Michael Becker of Hawthorndene, South Australia, 5051.
A1.4) The diary makes it plain that Pickering was incompetent in dealing with the case.
A1.5) I have read the entire diary in which Mr Pickering made daily entries, often about 100 words, until he suffered a massive stroke on June 16.
A1.6) I have photographed the pages mentioned in this addendum.
A2) DIARY ENTRIES RELATING TO ITEM 9 OF THE PETITION
A2.1) In particular item 9 of the petition demonstrates that:
defence counsel made it clear to the court he did not believe his client's statement that he had not committed the murder for which he had been charged and, instead, he believed the alleged confession, which the petition demonstrated to have been largely concocted by Detective Hallahan, contradicting the facts of the murder as determined by government pathologist Dr John Dwyer.
A2.2) On February 25 and 28 Pickering referred in the diary to "the confession" as a fact.
A2.3) This was despite the accused telling the jury in an unsworn statement: “Gentlemen, I did not kill any of these people and I am not guilty of this charge.”
A2.4) Proof that Pickering believed the concocted confession rather than his client exists in his (Pickering's) address to the jury: “He should have been told he did not have to answer questions. Only after about two hours of being pressed did he make an admission. Once he’s made a deadly admission, he can’t go back.”
A2.5) Believing his client had confessed, as detailed in 9.3, 9.9, 9.10 and 9.11 of the petition, it follows that the only option Pickering believed he had was to argue that the "confession" had been obtained without the proper caution being administered (9.11).
A2.6) In a paper delivered in 2009 entitled The Profession of Barrister - Service, Duty and Independence, The Hon Justice Kiefel, High Court of Australia, referred to a rule "which prohibits the making of submissions or the expression of views which "convey or appear to convey the barrister's personal opinion on the merits of that evidence or issue" (Barristers Rule 2007, r 22.)
A2.7) A diary entry for May 12, the first day of the trial, confirms Pickering's opinion: "... if Bailey gives evidence he will be sunk."
A2.8) It should have been obvious to a competent barrister that the account of the killings in the alleged confession did not match the facts given in evidence by the prosecution.
A2.9) A competent counsel should have demolished Hallahan's statement and the alleged confession one lie at a time in cross-examination. The trial transcript reveals he failed to do so.
A3) PRIORITY GIVEN TO ANOTHER BRIEF
A3.1) The reasons for this failure can be understood by the following diary entries.
A3.2) Pickering accepted the brief to defend Bailey for £400 on February 12 1958 (diary entry).
A3.3) The committal hearing took place that month.
A3.4) Pickering noted on March 13: "Bailey case is being put off until 28th April."
A3.5) Just five days later Pickering wrote: "Arranging to postpone Bailey's case so as to take on T.V. application."
A3.6) The "T.V. application" refers to a four-day federal government inquiry in Adelaide at which Rupert Murdoch, Frank Packer and an advertising conglomerate would be competing to determine which one should be recommended to run the sole, massively-profitable commercial television station scheduled for the city.
A3.7) The hearings from Tuesday May 6 to May 9 would leave Pickering only the weekend of May 10 and 11 to prepare for the opening of Bailey's trial on Monday May 12.
A3.8) Pickering gives no reason in his diary for prioritising the inquiry over a brief he had accepted. One suggestion would be that the fee and the prestige of the inquiry was more attractive than the £400 Bailey brief despite the life-and-death nature of Bailey's case.
A3.9) On Sunday May 4 the diary entry says Pickering spent seven hours of preparation for the television inquiry. The entry for Monday May 5 says he spent the whole of the Monday afternoon on the television inquiry preparation.
A3.10) But on Saturday May 10, after a full week concentrating on the inquiry, Pickering played golf in the morning. "Pain in my left shoulder. Home reading the Sundown murder. Iris [his wife] put on a turn because I have not taken her out lately."
A3.11) This was his first mention in the diary of the Bailey case since February 28. The entry suggests his concentration may have been affected.
A3.12) Unlike the previous Sunday when he had spent seven hours in preparing for the inquiry, the diary entry for Sunday May 11, with Bailey due to step into the dock the next day, reveals he played golf again, complaining about his left shoulder "which pained me all the round. Too much to drink before we started...Back to the library to work for an hour."
A3.13) Next, according to the May 11 entry, there were guests for a meal "then to bed to read the Sundown brief."
A3.14) So, affected by "too much to drink" the barrister entrusted with trying to save Bailey from the hangman spent many hours less preparing for this life-and-death case than he had for the television inquiry.
A4) SOCIAL OCCASIONS TOOK PRECEDENCE OVER THE BRIEF
A4.1) The May 10 and 11 examples of social occasions taking precedence over preparation for the Bailey case were also evident on February 24 and May 18.
A4.2) According to the diary entry for February 24 he attended a cathedral service to mark the opening of the legal year then had lunch, went to a judges' reception from 4.15 to 5.15pm and "Then back to the office for a while. Home and dinner about 7 and to work on the Sundown murder case for tomorrow."
A4.3) February 25 was the opening of committal proceedings against Bailey.
A4.4) The diary entries for May 22 and 23 make no mention of any work on the Bailey case.
A4.5) The February 24 entry was his first about the case since the 18th.
A4.6) On Sunday May 18 he "Did some work on Bailey's case until 12" before playing golf. The prosecution case finished the next day, meaning Pickering would be faced with the monumental task of making the defence case on the Tuesday.
A4.7) This lackadaisical approach to preparation would help to explain why Pickering had failed to spot the flaws identified in the alleged confession.
A4.8) In her 2009 paperJustice Kiefel said "...there can be no lack of interest by a barrister in the full and complete preparation of the case at hand."
A4.9) As referenced in the actual petition, The Hon Justice Michael Kirby AC CMG has written that: “…in keeping with greater realism, courts in Australia have developed principles to protect litigants from incompetent counsel…It is easy to be wise after legal events - a privilege that specially belongs to appellate judges. But today, where a person is denied a fair trial because of incompetent legal representation, the courts do not wash their hands; neither should they.” (2002 (23) Adelaide Law Review)
A4.10) In a 2016 paper "Incompetence of Counsel as a Ground for Appeal in the CCA" prepared for a legal conference, Peter Guirguis, Senior Solicitor, Legal Aid NSW, an accredited specialist in criminal law, analysed Nudd v The Queen [2006] HCA 9.
A4.11) He reports: "It was accepted by the High Court, directly and indirectly, that counsel conducted the trial incompetently." This was despite the judgement of guilt being upheld.
A4.12) Guirguis continues: "Each judgment placed considerable emphasis on the strength of the prosecution case, which was characterised as being “effectively unanswerable” (even allowing for evidence that might have been excluded if the trial were conducted by competent counsel). There was consensus among the members of the Court that, if the accused had been deprived of a real chance of an acquittal by reason of the effect of counsel’s incompetence, then the verdict could not stand. It was held ultimately that there was no failure of process that departed from the essential requirements of a fair trial, despite the fact that counsel was woefully incompetent."
A4.13) In the Bailey case the current petition makes clear that the prosecution case was demonstrably contestable and answerable, that the alleged confession was the only direct evidence advanced and that it was manifestly flawed.
A4.14) It therefore follows the above analysis of Nudd v The Queen that the accused was deprived of a real chance of an acquittal by reason of the effect of counsel’s incompetence and, therefore, the verdict cannot stand.
A5) EXCESSIVE ALCOHOL CONSUMPTION, MENTAL AND PHYSICAL IMPAIRMENTS
A5.1) There are further pointers to explain Pickering's failure to properly represent his client.
A5.2) Throughout the period when Pickering had the Bailey brief, he recorded his over-consumption of alcohol and the effect it had on him, as with the May 11 example already referred to in which he confessed "Too much to drink" before playing golf.
A5.3) April 11: "I will have to put my foot down about our pre-lunch drink. It usually turns into 3 and no one can work properly in the p.m."
A5.4) May 2: "Had a lot too much to drink."
A5.5) May 3. Saturday "Woke with a hangover and was reluctant to get up. Got breakfast and then returned to bed until 10."
A5.6) How much did he drink?
A5.7) January 4: "Home about 1am after consuming a lot of Scotch."
A5.8) March 29: "I brought John Dodds home and we consumed a bottle of Goddard's Rum. Then Iris and Judith came home and we had a few drinks with John."
A5.9) And the effect?
A5.10) Sunday March 9: "...had a party till 1am."
A5.11) Monday March 10: "Felt very jaded when I woke....Very tired all day. I must get some sleep. I have been sleeping badly and have got into the habit of waking about 3am and having to go to the toilet."
A5.12) Wednesday March 19: "I have been feeling tired and jaded lately...my sleep has been very broken for the last week."
A5.13) Thursday March 20: "I attended the Barossa Valley Bacchus Club dinner...finished in the bar at 2am."
A5.14) March 21: "Woke feeling somewhat lousy, a feeling which persists all day."
A5.15) Wednesday May 21: "So tired I could hardly work at all."
A5.16) Saturday May 24: Woke "with a heck of a hangover."
A5.17) Friday June 13: "Woke with a heck of a hangover and was tired all day."
A5.18) Hangovers and tiredness would not have been conducive to clear thinking, analysis and concentration, thus contributing to his incompetence.
A6) "A ROTTEN LABORIOUS WAY OF EARNING A LIVING"
A6.1) His references on March 10 and 19 to being jaded are reflected in his attitude to his work as a barrister.
A6.2) He recorded on April 28: "I am not at all happy about having to work so hard for such a small net return."
A6.3) And the next day: "Express Freight case all day. Am getting sick of it and don't know if I'm going to win...I shocked John Bray today by telling him I regarded the law lately as merely a rotten laborious way of earning a living."
A6.4) This "rotten laborious way of earning a living" is hinted at in a diary complaint on June 2: "Back to the office to work at high pressure on Bailey's appeal for tomorrow. He certainly is getting good value for the £400 I received from his father."
A6.5) He was having "to work at high pressure" because once again he had left such preparation to the last possible day because for the previous nine days he had driven to Melbourne and back to attend the Melbourne sittings of the television licence inquiry, despite the appeal being the last chance to save Bailey's life.
A6.6) The jaded state of mind is also evident when Pickering, who recorded that his earnings of £4,500 a year exceeded the chief justice's salary (diary March 27), referred in a dismissive way to the £400 provided by Bailey's father (diary February 12) which represented about six months' income for him, based on government statistics for the period.
A6.7) In her 2009 paper Justice Susan Kiefel said: "...it has always been understood that a barrister's conscience will guide them to provide assistance in a deserving case, to the extent that they can reasonably afford to do so."
A6.8) Pickering's state of mind and lack of dedicated time to the case calls into question whether he was fully involved in this aspect of his honourable profession.
A6.9) The deteriorating state of Pickering's state of mind and health reached a new low on the most crucial day of Bailey's trial. The QC had staked everything on keeping Bailey out of the witness box. Therefore, the entire defence case rested on Pickering making such a wholehearted and forensic speech that it would convince the jury to return a not guilty verdict.
A6.10) This is how he recorded the address in his diary:
"Woke feeling like a heart attack. Heart appeared to be operating very irregularly. Never felt like it before Bailey case. I started my address about 10 to 12. Felt better once I was on my feet. Finished about 3.30 and judge summed up till 5.30. Jury retire and we went down to the Thistle for a drink in the new cocktail bar and then had dinner. Verdict Guilty at 7.10 and sentence of death...Drove Arthur Mangan home and had a few drinks..."
A7) SUMMARY OF ARGUMENTS ADVANCED IN THIS ADDENDUM
A7.1) This addendum argues:
A7.2) That Pickering's approach to the case amounts to incompetence and negligence.
A7.3) Nudd v The Queen [2006] HCA 9 supports the view that where the accused was deprived of a real chance of an acquittal by reason of the effect of counsel’s incompetence in a case where the prosecution case was demonstrably contestable and answerable, the verdict cannot stand.
A7.4) The diary provides further evidence that Pickering believed the alleged confession rather than his client when he told the court his client had confessed to the murder, thus breaking Barristers Rule 2007, r 22 (as mentioned by Justice Kiefel in her 2009 paper) which prohibits the making of submissions or the expression of views which "convey or appear to convey the barrister's personal opinion on the merits of that evidence or issue."
A7.5) Rushed and insufficient preparation given to the case resulted in Pickering failing to analyse Hallahan's statement and the alleged confession, listing the crucial flaws and sufficiently cross-examining the detective on those flaws in his evidence and in the alleged confession.
A7.6) Diary entries make it abundantly clear that Pickering accepted a brief to appear at the television inquiry having already accepted the Bailey brief and prioritised the inquiry to the detriment of preparations for the Bailey case, resulting in insufficient preparation to properly defend Bailey. As Justice Kiefel pointed out: "...there can be no lack of interest by a barrister in the full and complete preparation of the case at hand."
A7.7) Pickering's somewhat dismissive attitude to having "to work at high pressure" for £400 suggests his mind may not have been fully devoted to providing "assistance in a deserving case, to the extent that [he could] reasonably afford to do so."
A7.8) Pickering's self-confessed over-consumption of alcohol, the resulting hangovers and lack of sleep, his jaded attitude and the statement that he "regarded the law lately as merely a rotten laborious way of earning a living" rendered him unfit to fully carry out his professional duties.
A7.9) All these reasons add to the those detailed in the February petition as to why a posthumous pardon should be granted to Raymond John Bailey and his conviction quashed.
SIGNATURES OF PETITIONERS
This addendum was researched and compiled by Stephen Anthony Bishop, PO Box 521, The Gap, Queensland, 4061.
Signed
Stephen Anthony Bishop.
Dr Robert N Moles, Networked Knowledge and Adjunct Associate Professor, Flinders University
Lola Jean Bateup, a sister of Raymond John Bailey
The Hon Mike Ahern AO, former National Party Premir of Queensland
Bruce Milne OAM
John Shobbrook, Redcliffe, Queensland
Submission of Warren Howell, BA, LLB (UQ), LlM ( Lon).
Barrister-at-Law Queensland 23 Nov 1965, Barrister & Solicitor TPNG 1968, Barrister-at-Law NSW 1983.
Member Honourable Society of Gray's Inn 3 March, 1971.
Magistrate Hong Kong 1972-73.
Queensland Bar Board Examiner (Old Rules), all 15 subjects 1974-77.
District Court Judge Queensland 26 July 1984--30 May 2009 (compulsory retirement at age 70).
Chairman Mental Health Act Patient Review Tribunal 1988-89.
I have read the April petition to the South Australian Governor seeking a posthumous pardon for Raymond John Bailey, found guilty at Adelaide Supreme Court in May 1958 of murder and hanged in June 1958; the May addendum to that petition; and excerpts taken from the 1958 diary of defence counsel Arthur Pickering QC.
As a result I submit:
Bailey was denied a fair trial because of the incompetence/negligence of defence counsel.
Defence counsel was incompetent/negligent in not cross-examining on the significant differences between the established facts of the killings and the contents of the confession, and internal inconsistencies in the established facts at the locus in quo.
Defence counsel was incompetent/negligent in not cross-examining on threats causing the false confession, in accordance with Bailey's unsworn statement from the dock, which further would have avoided the possibility of rebuttal evidence with its significant prejudicial effect.
Defence counsel was incompetent/negligent in not calling evidence including expert evidence on the said two topics.
Defence counsel was incompetent/negligent in his tactical overemphasising of the failure to warn, thereby attenuating much stronger points.
Defence counsel was incompetent/negligent in not giving real and appropriate emphasis in cross-examination and calling of evidence on the vulnerable state of the accused in the making of the confession.
Defence counsel was incompetent/negligent in not highlighting in cross-examination (and possibly in calling evidence) of the matters strongly in Bailey's favour of his not being the killer on the physical evidence at the scene.
Defence counsel was incompetent/negligent in not calling Bailey's father-in-law to give evidence. Alternatively he should have strongly submitted for an adjournment until the father-in-law could give evidence.
Crown counsel breached his duty in not calling Bailey's father-in-law, alleged to be a crucial witness in possession of direct evidence. Alternatively, Crown counsel should have asked for an adjournment until the father-in-law was available to give evidence.
Different counsel other than Pickering QC should have argued the appeal to pursue the argument that Bailey was denied a fair trial by virtue of the incompetence/negligence of Pickering QC on the grounds detailed above.
The verdict of guilt is against the evidence and the weight of the evidence. It would be unsafe, unsatisfactory and dangerous in the administration of justice for a verdict of guilt to stand.
I had a virtually exclusive Criminal Practice at the Queensland Bar (70% defending and 30% prosecuting) from November 27 1965 to July 25 1984.
At the Bar, one was only too aware of Detective Hallahan's reputation for corruption, dishonesty and involvement in serious crime. I cross-examined him on a number of occasions. I am hamstrung in my detailed criticisms of Detective Hallahan in referring to information from clients on serious charges because of limitations imposed by legal professional privilege.
STATEMENT IN SUPPORT OF THE PETITION SEEKING A QUASHING OF THE CONVICTION OF, AND PARDON FOR, RAYMOND JOHN BAILEY
My full name is Francis Leonard Lippett.
Relevant experience
Between 1965 and 1974 I was a Queensland Police Officer, serving primarily as a detective at the Brisbane and environs Criminal Investigation Branch. From 1974 to 1978 I was a detective with the then Commonwealth (now Federal) Police. Between 1979 and 2019 I was a barrister in practice at the private Bar in Queensland and New South Wales, with occasional forays into South Australia, Tasmania and Victoria.
While in practice I held part-time appointments as the president of the Brisbane and then the Queensland Corrections Board (Parole Boards), and later as president of the renamed Queensland Parole Board. Parole Board work spanned about nineteen years, for three of which I was also the vice-president of the Association of Paroling Authorities International.
When a Queensland detective, I was put to work with Glen Patrick Hallahan for about three weeks until he requested another partner, as we had quite different standards and attitudes. Throughout my Police service and afterwards, Hallahan, another detective named Murphy and Terry Lewis who became the Police Commissioner, were reputed to be involved in serious criminal and corrupt activity. It was not just inappropriate office gossip, but a series of accusations by a number of respected detectives, although hard evidence was lacking. His propensity to fabricate evidence was confirmed by at least three Courts, as detailed by the petitioner. Hallahan had died by the time his close acquaintance Terry Lewis was charged and sentenced to fourteen years’ imprisonment.
My experience and observations during the late 1960’s and early 1970’s was that the fabrication of a confession (“the verbal”) was a weapon regularly wielded by corrupt detectives, who did not hesitate to boast about it to their workmates. The social climate of the time was that some judges, magistrates and juries were aghast at the proposition that a Police Officer would tell a lie, and believed unhesitatingly that the only person not telling the truth was the defendant. That view increased the boldness of corrupt police. During my eight years as an active detective, which involved giving evidence a number of times, my evidence was not ever challenged. Further, proper investigation most often resulted in the offender pleading Guilty.
Material considered
I have read the Petition and supporting documents as well as the Judgment of the Supreme Court (in Banco) which dismissed Bailey’s appeal. The thoroughness and accuracy of Mr Bishop’s material cannot be disputed; and it is not intended to regurgitate it, but to highlight some aspects about which I believe I am qualified to comment.
Association with the Petitioners
I have met only one of the Petitioners, Judge Howell. Until reading the material, I had not heard of Bailey’s case.
Submission as to what would be a just outcome
In my respectful submission, it would be just to either pardon Bailey, or quash his conviction. If those outcomes are thought too extreme at this stage, then the case could be thoroughly and fully ventilated in the Court of Appeal as a first step. It is not suggested that the Supreme Court erred in 1958. However it is now possible to consider the evidence in the light of what is now known about the activities of Glen Patrick Hallahan, without whose evidence the prosecution would have surely failed.
The confession/s
At trial and on appeal, defence counsel relied upon the narrow ground that Bailey was not warned about his right to silence until it was too late, in contravention of the Judges’ Rules. There was no cross-examination or appeal submission alleging that either the confession to Hallahan or the refinement of it by the South Australia detectives was fabricated.
That may have been due to inadvertence or may have been a deliberate tactic, given the community’s general unwillingness to accept that Police Officers perjured themselves. It is noted that defence counsel wrote in his diary that Bailey would be “sunk” if he gave evidence. That view may have been the product of a belief that Bailey was guilty and would not fare well in cross-examination; or it could have been because he knew Bailey would claim that he did not confess, and that proposition was likely to be rejected by the jury.
Whatever the reason, it is submitted that the flaws in the fabricated confession/s raise more than a reasonable doubt about Bailey’s likely guilt.
Flaws and contradictions in confession
The contents of the alleged confession are to be considered in the light of Hallahan’s concession at trial that when he interviewed Bailey, he had only “a summary” of the murders.
Method of killing
The pathologist’s opinion was that all three victims had their skulls fractured before being shot; and in his opinion they were all killed where they were found. But according to the confession, Bailey took all the victims to another place some distance away after killing them.
The confession also had him saying that he shot Thyra Bowman as she walked towards him. The pathologist said she was shot in the back of the neck as she lay face down on the ground. The confession claims Bailey said he hit Wendy Bowman on the head with the rifle butt, causing her to fall down. Then he shot her as she was getting up. The pathologist said
she was shot through the head while lying on the ground with the right side of her face facing downwards.
The weapon
Bailey obtained a Huntsman rifle before leaving South Australia, but did not have it in his possession when searched at Mt Isa, and explained the disposition of it. The victims were in possession of a Sportsman rifle. There are distinct differences in appearance between the two.
The confession claims Bailey said that he saw his rifle, broken and covered in blood, on the front seat (of a car) at the scene. The only rifle at the scene was broken and had blood on it, but it was the Bowman’s Sportsman.
That means, according to the confession, there was sufficient light available for Bailey to see that the gun was broken, and was able to see blood stains, but was not able to discern that it was not his rifle.
It is emphasised that on his own admission, Hallahan was not in possession of the details of the murder scene when he interviewed Bailey.
The confession claimed that Bailey said he threw the murder weapon, his rifle, out the car window after leaving the murder scene and before arriving at Alice Springs. There was substantial publicity about a search that the police said was to be made, in company with Bailey, for the missing weapon. There were even blacktrackers engaged to help. However at trial it was conceded by a South Australia detective, one Moran, that no search for the weapon took place, with or without Bailey.
It is submitted that the only likely reason to call off a planned and announced search would be because other police realised, or suspected, or were told by Hallahan, that the rifle would not be found because he had fabricated that part of the confession.
The father-in-law
While at Mt Isa, Bailey made arrangements for his father-in-law, a Mr Hudson, to travel from his home in Dubbo to Mt Isa to visit him at the police station. That visit, according to Hallahan, started at 7.30pm on Saturday 25 January 1957. Hallahan claimed that in his presence, Bailey confessed to his father-in-law. Bailey later denied having done so.
If Hallahan’s version of events was the truth, then it would have been fundamental police practice to obtain a written statement from Mr Hudson as to what Bailey had said as soon as possible, given the extreme importance of his evidence as a relative who was able to give sworn evidence of admissions of guilt. Astonishingly, it seems Hallahan did not obtain a written statement from Mr Hudson.
The only written record which was created about the alleged conversation was made by Hallahan, and that almost a month after the conversation took place. Hallahan’s record was created on Friday 21st February. The committal proceedings were listed to commence on Monday 24th February.
At the commencement of the trial, the Crown Prosecutor told the jury that Mr Hudson would be an important witness. However he was not called by the Crown, and no reason was advanced by the Crown for the omission to call him. It is submitted that the likely reason to not call such an important witness was that the Crown Prosecutor was either told, or came to believe, that Mr Hudson could not confirm Hallahan’s version of the conversation.
Bailey told the Court that he believed Mr Hudson did not attend because he had the mumps. But there was no medical or other evidence adduced to indicate either that Mr Hudson was sick, or that he could not travel to the Court. And it was the Crown’s responsibility to deal with the situation, not the accused’s. The Crown Prosecutor could have sought an adjournment until Mr Hudson was able to attend. The fact that the Prosecutor did not do so leaves the inference open that a forensic reason emerged for the Crown not wanting him present.
Hallahan’s reliability
Bailey and his wife were travelling in a black de Soto car. There is a plethora of evidence that the South Australia investigators told other Police, including those at Mt Isa, that they were interested in speaking with the occupants of a black de Soto in connection with the murders.
Hallahan gave evidence that he saw a black de Soto with South Australia registration at 5.00pm in Mt Isa, and waited nearby until 6.20pm when the occupant (Bailey) returned to the vehicle. It was then that Hallahan and his partner, a Detective Pfingst, started to question Bailey about his ownership of the vehicle. In Court, Hallahan claimed he did not know at that time that the vehicle was of interest to the murder investigators, but alleged the two detectives were watching the car because “of information received.” If that was the truth, the information must have been about the acquisition of the car by false pretences, with which Bailey was later charged. It is to be noted that Hallahan claimed to have not been told the registration number of the wanted car before his afternoon watch.
In other words, on Hallahan’s version of events, he was ignorant of the South Australia police notices of interest in the vehicle over the murders, despite being a detective in a small town on a main outback route from the Northern Territory to Queensland. But he did receive information about a fraud concerning the same car from the same State, even though it related only to a de Soto car with an unknown registration number.
Second, there is the aspect of Hallahan’s interview with Bailey. When he questioned him about the car, and charged him with false pretences, he had Detective Pfingst with him. That accorded with standard police practice to have a corroborator present who could give evidence of what was said.
However there was a curious system employed by Hallahan when Bailey was interviewed about the murder. The District Inspector at the time was a man named Norwin Bauer. Hallahan questioned Bailey about the murder on 22 January, between 10.30am and 1.30pm. In evidence, Hallahan said: “Bauer was present for most of the interrogation. He went out on quite a few occasions.” Hallahan said he cautioned Bailey about his right to silence at 12.15pm, and that Bauer was present when the caution was administered “and was present thereafter.” He gave evidence that the interview continued for “about twenty-five minutes” after the caution.
Several points arise from that evidence. First, the only reference to Bauer in Hallahan’s statement for Court was that Bauer was present when Bailey was cautioned at 12.15pm, and was present for the remaining twenty-five minutes of the interview. It was only when giving evidence that he first mentioned that Bauer was present intermittently between 1030am and 1215. The obvious question is why an investigating detective would not have mentioned the
whole involvement of the District Inspector in his Court statement, if Bauer was in truth present earlier.
Second, it appears from the material that Bauer was not called to give evidence even though, at least potentially, he could have given evidence corroborating the confession, if it had been made. It beggars belief that the Crown Prosecutor would not either call him, or at least have him at Court in case the genuineness of the confession was challenged.
Third, there must be only a small likelihood of the District Inspector being used as a silent witness during a murder interrogation, rather than another detective such as Pfingst who was present during the previous day’s interviews about the car, or a uniform Police Officer.
Fourth, Hallahan’s claim that Bauer was absent from the interrogation “on quite a few occasions” means that even if Bauer had been sometimes present, there was ample opportunity for Hallahan to apply his over-bearing and intimidating tricks without a witness; and also to be able to claim Bailey had confessed when Bauer was absent. Further, the likelihood of the District Inspector offering or agreeing to the corroborator’s role, but then not remaining in the room for three hours must be remote. It has to be highly unlikely that matters of urgent district importance arose several times during a two hour period (10.30am to 12.15pm) on a Tuesday in Mt Isa.
Fifth, this is the only occasion on which I have experienced or been told that a detective noted the specific time a caution was administered. There is no point in doing so in the event of a genuine confession and genuine caution. But if both were fabricated, a note of the time of the alleged caution might bolster the stocks of the detective in the minds of the jury, in that he would be seen as a thorough and meticulous person. The whole of Hallahan’s evidence about Bauer smacks of falsity.
Identification evidence
After Bailey had been charged, his car was taken to a police holding yard. Kulgera is a small town about twenty kilometres north of the South Australia border, on the road to Alice Springs. The Kulgera storekeeper, a Mr Wilkinson, was interviewed and taken to the holding yard to view the vehicle. The prosecution case included an allegation that Bailey bought petrol at Wilkinson’s store.
Mr Wilkinson gave evidence at the committal proceedings about a black car having passed through Kulgera, but he was unable to recall details. However at the trial he was definite about the car and the date on which he saw it. Mr Wilkinson said his memory was improved by seeing Bailey’s car at the police holding yard.
Importantly, when asked about identification of the car’s occupant, Mr Wilkinson looked directly at Bailey, and said: “I have never seen this man before this Court case.”
There does not appear to have been any connection between Mr Wilkinson and Bailey. He was just a storekeeper from a small town giving honest evidence. His certainty of never having previously seen Bailey should have raised a doubt in the jury’s collective mind. But it did not, highlighting the importance of the confessional evidence.
Footprints
There was evidence that some shoeprints of varying sizes were found at the murder scene. They were estimated to be between sizes seven and ten. Bailey’s shoe size was five and a half or six, depending on the brand of shoe. Once again, the discrepancy should have caused the jury some concern. But again the belief in the truth of the fabricated confessions carried the day.
Defence counsel
Defence counsel in criminal cases must sometimes make important but difficult tactical decisions. Often there are simpler alternatives, but counsel usually try to make the decision which will be most likely to help the client. In so doing, tactical mistakes can be made. In the present case, it could be that counsel did not prepare as thoroughly as would be expected, as the petition suggests. Alternatively it could be that the wrong tactics were chosen.
It was not put to Hallahan that the confession was a fabrication, and he was not subjected to rigorous cross-examination about its flaws and contradictions. And it was not put to the South Australia detectives that they refined the confession to make it better align with the evidence. Consequently the jury did not have an opportunity to even consider the possible falsity of the confessional evidence.
As the Crown did not call the father-in-law Mr Hudson as opened, defence counsel could have done so, or sought an adjournment if the witness was ill. Not doing so deprived Bailey of an important opportunity. According to Bailey’s statement, which presumably was in line with his instructions, Hudson’s evidence would have been that Bailey did not confess to him.
Hallahan should have been cross-examined about the falsity of that part of his statement and then evidence led from Hudson about there not having been a confession in his presence. In relation to the alleged confession to Hallahan, to not cross-examine about it being fabricated but to rely only on the narrow ground of a caution not having been made earlier than it was, was a serious error.
Conclusion
I accept and unreservedly endorse the worth of all the contents of the petition. This statement is intended to reinforce some of the points already made, from the perspective of personal experience.
My ultimate submission is that the system of administration of justice would be best served in this case by granting Raymond John Bailey a pardon, and quashing his conviction; or at least having the whole case ventilated in the Court of Appeal.
Thank you for considering the matter.
RELEVANT EXTRACTS FROM THE PERSONAL 1958 DIARY OF ARTHUR PICKERING QC
Direct references to the Bailey case are in bold. All words contained in quotation marks are Pickering's words, phrases and sentences quoted exactly from the diary. Underlinings are used for emphasis.
January
1: "My health and resilience to alcohol seem better than ever before."
4. "Home about 1am after consuming a lot of Scotch."
21: "We are about £3,000 down on last year."
February
3: "It is incredible how this practice has grown in the last 10 years. Last month's salary bill was £631 which is a lot."
"Got my tax assessment £4,400 which is fantastic."
12: "Arthur Mangan briefed me on Sundown Murders case R v Bailey (murder of 3 people near Sundown Station) at a fee of £400. The defendant's father is putting up
£500."
14: After collecting an Electrolux cleaner from a shop at 8.45am "Then to the office where I prepared a statement in R v Bailey asking that preliminary hearing evidence be not published....and then to court where I made my request asking that it be considered(?) until March 25 when I would renew it."
18: 4pm "Then a conference with Arthur Mangan re Sundown Murders and home to dinner."
20: "Worked hard in the office all day - mostly on an opinion for Dave Waterhouse re MLC Building and Fricker Bros Ltd."
21: in the morning in court for a careless driving case. "Spent the rest of the day working on the MLC opinion....Drinks at the club then home with Bob and Don Westwood for more drinks with the three wives...Bed about 1am very tired.:
22. Saturday golf and drinks. No work
23. Sunday afternoon party. No work.
24: Cathedral for opening of the legal year. Lunch. Judges' reception 4.15 to 5.15. "Then back to the office for a while. Home and dinner about 7 and to work on the Sundown murder case for tomorrow."
25: "Sundown murder case started before Clarke SM R v Bailey, Eb Scarfe prosecuting. Arthur Mangan and I for defence. Clarke ruled against my request to prohibit publication of evidence but Scarfe did not open the confession. Crowds waiting to enter and loads of press reps."
Later: "Home working in the evening."
26: "Sundown case. Tremendous publicity. Case is faring alright at present." Rotary bowls in the evening. Tea on the lawn.
27: "Sunshine murder all day. Rather cooler. Cross-examined fingerprint expert O'Neill and others. Not sufficient evidence yet to convict....Home with Iris in the evening."
28: "Sunshine murder case all day. SM cleared the court to hear the police evidence which means the confession will not be published. A major victory for which I have been striving all the week. To the club then home."
MARCH
1: Saturday. Golf. Drinks. "Home about 7. Rather merry."
2: Sunday "Up for breakfast at 10 and to Bruce Thompson's at 11.30 for a morning party."
3: "All morning finishing up Bailey case in p/ct. Police evidence given in camera so no press reports and the case fizzled out like a damp squib."
9: Sunday party till 1am
10: "Felt very jaded when I woke....Very tired all day. I must get some sleep. I have been sleeping badly and have got into the habit of waking about 3am and having to go to the toilet."
13: "Bailey case is being put off until 28th April."
18: "Arranging to postpone Bailey's case so as to take on T.V. application."
19: "I have been feeling tired and jaded lately...my sleep has been very broken for the last week."
20: Thursday "I attended the Barossa Valley Bacchus Club dinner...finished in the bar at 2am."
21: "Woke feeling somewhat lousy, a feeling which persists all day."
27: Legal cocktail party with judge Geo Ligertwood. "...Geo wrote a complaint about judges' salaries - actually well justified as the c/sol gets £4,150 and a judge only £4,000.Rather ludicrous that my i/tax £4,500 exceeds the cj salary."
29: "I brought John Dodds home and we consumed a bottle of Goddard's Rum. Then Iris and Judith came home and we had a few drinks with John."
APRIL
11. Friday "...I was tired all day. We are all going to be excessively busy for the next few weeks. To the club for lunch. I will have to put my foot down about our pre-lunch drink. It usually turns into 3 and no one can work properly in the p.m."
28: "I am not at all happy about having to work so hard for such a small net return."
29: "Express Freight case all day. Am getting sick of it and don't know if I'm going to win...I shocked John Bray today by telling him I regarded the law lately as merely a rotten laborious way of earning a living."
MAY
1. Thursday "Express Freight case all day. Judge summed up at 4pm after eight days. Dinner at home and then read 2nd day's TV transcript."
2: "Had a lot too much to drink."
3. Saturday "Woke with a hangover and was reluctant to get up. Got breakfast and then returned to bed until 10." Golf.
4. Sunday "At 4pm Bill Sykes arrived and conference re TV application till 6pm. Reading Brisbane transcript till 11pm."
5. Lunch "Then office trying to complete preparation for TV case tomorrow.
6. Television inquiry where Frank Packer and Rupert Murdoch were vying for licences and were represented by QCs. Pickering and Bill Sykes appeared for TV Broadcasters, sponsored by advertisers. Conference about the inquiry until 10.30pm.
7: TV case all day. TV conference and then ball until 12.30am.
8. "TV case all day." ..."Young Ruprt Murdoch. I'm rather sorry for him. Brilliant father. He is trying very hard to make good but is too young and naive."
9. "TV case all day." Family gathering till midnight.
10: Saturday golf. "Pain in my left shoulder. Home reading the Sundown murder. Iris put on a turn because I have not taken her out lately."
11. Sunday golf. "...I had (??) in my left shoulder which pained me all the round. Too much to drink before we started..." ..."Back to the library to work for an hour." Guests for tea..."then to bed to read the Sundown brief."
12: "Sundown murder case...Spent all morning submitting evidence of confessions should be excluded but Reed J let it in. I think I could toss(?) his ruling in the H Ct but if Bailey gives evidence he will be sunk." Home at 10pm after drinks.
13. "Sundown murder" There is nothing further about the case on this day.
14. "Sundown case all day...Straight home from court and to work after dinner."
15. "Sundown murder all day...Still on Crown case" guest for dinner. "I worked on the case."
16. "Bailey's case all day."
17. Saturday. "To Adelaide Gaol for an hour with Bailey finishing his statement. Then to golf..."
18. Sunday "Did some work on Bailey's case until 12." Then golf.
19: "Bailey case all day...Evidence finished at 4.15 with Bailey making an unsworn statement during which 2 women were dragged out screaming "Hang him".
20. "Woke feeling like a heart attack. Heart appeared to be operating very irregularly. Never felt like it before Bailey case. I started my address about 10 to 12. Felt better once I was on my feet. Finished about 3.30 and judge summed up till 5.30. Jury retire and we went down to the Thistle for a drink in the new cocktail bar and then had dinner. Verdict Guilty at 7.10 and sentence of death." ..."Drove Arthur Mangan home and had a few drinks..."
21. "So tired I could hardly work at all."
24. Saturday he drove to Dimboola and on the Sunday to Melbourne to spend the week working on the TV inquiry for four days and having a day off with friends and family on the Friday, driving back to Dimboola on the Saturday and to Adelaide on Sunday. He had woken "with a heck of a hangover..." on the 28th.
JUNE
2. Monday "Back to the office to work at high pressure on Bailey's appeal for tomorrow. He certainly is getting good value for the £400 I received from his father." Then lunch.
3. "Bailey's appeal from his conviction for murder...Argued all day and finished tired out. Took the car in to clean up for a new engine."
4. "Bailey's case all day. They are going to decide against me."
5. "Arthur Mangan went down to the Gaol and saw Bailey who is resigned to being executed next Tuesday and does not wish to appeal to the HC."
13. "Woke with a heck of a hangover and was tired all day."
16. Monday. Queen's Birthday. To Mount Lofty and played golf with Iris and John Dodds. Half way round I developed what I thought was a migraine headache and could not focus my eyes sufficiently to putt. Got John to drive me home where I was violently sick. Went to bed and developed paralysis of the left leg and arm in the night. Dr Dick Bennett and John McPhie diagnosed a cerebral thrombosis, a blood clot and I then spent the next six weeks in bed hovering between life and death...Now after nearly six weeks (July 24) I am able to walk with a stick and sit by the fire which relieves the tediousness of lying all night and day in bed."
Mike Ahern, the former Queensland Premier who has since died, put me in touch with retired Queensland District Court judge Warren Howell who had always believed there were problems with the Bailey case and had, while a barrister, clashed with Detective Glan Hallahan, saying: "In cross-examining GP I would throw the book at him and never knocked a chip off him.”
And Warren put me in touch with retired barrister Frank Lippett, who had once been a detective with personal knowledge of Hallahan's corrupt behaviour."
I believed the diary entries and the opinions of two such eminent jurists made it essential to submit an addendum to the February 2022 petition.
ADDENDUM TO THE PETITION TO HER EXCELLENCY MS FRANCES ADAMSON AC, GOVERNOR OF SOUTH AUSTRALIA, FOR A POSTHUMOUS PARDON FOR, AND QUASHING OF, THE CONVICTION OF RAYMOND JOHN BAILEY, FOUND GUILTY OF THE MURDER OF THYRA BOWMAN ON MAY 20 1958 AND HANGED ON JUNE 24 1958.
Addendum dated May 2022
CONTENTS
1) PREAMBLE
2) DIARY ENTRIES RELATING TO ITEM 9 OF THE PETITION
3) PRIORITY GIVEN TO ANOTHER BRIEF
4) SOCIAL OCCASIONS TOOK PRECEDENCE OVER THE BRIEF
5) EXCESSIVE ALCOHOL CONSUMPTION, MENTAL AND PHYSICAL IMPAIRMENTS
6) "A ROTTEN LABORIOUS WAY OF EARNING A LIVING"
7) SUMMARY OF ARGUMENTS ADVANCED IN THIS ADDENDUM
8) SIGNATURES
SUBMISSION BY WARREN HOWELL
STATEMENT BY FRANCIS LEONARD LIPPETT
EXTRACTS FROM THE 1958 PERSONAL DIARY OF ARTHUR PICKERING QC
A1. PREAMBLE
A1.1) This addendum relates to item 9 of the petition submitted in February this year but also includes a submission by retired judge Warren Howell and a statement by former head of Queensland Parole Board Francis Leonard Lippett.
A1.2) Item 9 deals with evidence from the R v Bailey trial which shows defence counsel Arthur Pickering QC failed in his duty to his client.
A1.3) Additional evidence of this aspect of the petition has come to light through revelations in the personal 1958 diary of Pickering which has been made available by his grandson, Michael Becker of Hawthorndene, South Australia, 5051.
A1.4) The diary makes it plain that Pickering was incompetent in dealing with the case.
A1.5) I have read the entire diary in which Mr Pickering made daily entries, often about 100 words, until he suffered a massive stroke on June 16.
A1.6) I have photographed the pages mentioned in this addendum.
A2) DIARY ENTRIES RELATING TO ITEM 9 OF THE PETITION
A2.1) In particular item 9 of the petition demonstrates that:
defence counsel made it clear to the court he did not believe his client's statement that he had not committed the murder for which he had been charged and, instead, he believed the alleged confession, which the petition demonstrated to have been largely concocted by Detective Hallahan, contradicting the facts of the murder as determined by government pathologist Dr John Dwyer.
A2.2) On February 25 and 28 Pickering referred in the diary to "the confession" as a fact.
A2.3) This was despite the accused telling the jury in an unsworn statement: “Gentlemen, I did not kill any of these people and I am not guilty of this charge.”
A2.4) Proof that Pickering believed the concocted confession rather than his client exists in his (Pickering's) address to the jury: “He should have been told he did not have to answer questions. Only after about two hours of being pressed did he make an admission. Once he’s made a deadly admission, he can’t go back.”
A2.5) Believing his client had confessed, as detailed in 9.3, 9.9, 9.10 and 9.11 of the petition, it follows that the only option Pickering believed he had was to argue that the "confession" had been obtained without the proper caution being administered (9.11).
A2.6) In a paper delivered in 2009 entitled The Profession of Barrister - Service, Duty and Independence, The Hon Justice Kiefel, High Court of Australia, referred to a rule "which prohibits the making of submissions or the expression of views which "convey or appear to convey the barrister's personal opinion on the merits of that evidence or issue" (Barristers Rule 2007, r 22.)
A2.7) A diary entry for May 12, the first day of the trial, confirms Pickering's opinion: "... if Bailey gives evidence he will be sunk."
A2.8) It should have been obvious to a competent barrister that the account of the killings in the alleged confession did not match the facts given in evidence by the prosecution.
A2.9) A competent counsel should have demolished Hallahan's statement and the alleged confession one lie at a time in cross-examination. The trial transcript reveals he failed to do so.
A3) PRIORITY GIVEN TO ANOTHER BRIEF
A3.1) The reasons for this failure can be understood by the following diary entries.
A3.2) Pickering accepted the brief to defend Bailey for £400 on February 12 1958 (diary entry).
A3.3) The committal hearing took place that month.
A3.4) Pickering noted on March 13: "Bailey case is being put off until 28th April."
A3.5) Just five days later Pickering wrote: "Arranging to postpone Bailey's case so as to take on T.V. application."
A3.6) The "T.V. application" refers to a four-day federal government inquiry in Adelaide at which Rupert Murdoch, Frank Packer and an advertising conglomerate would be competing to determine which one should be recommended to run the sole, massively-profitable commercial television station scheduled for the city.
A3.7) The hearings from Tuesday May 6 to May 9 would leave Pickering only the weekend of May 10 and 11 to prepare for the opening of Bailey's trial on Monday May 12.
A3.8) Pickering gives no reason in his diary for prioritising the inquiry over a brief he had accepted. One suggestion would be that the fee and the prestige of the inquiry was more attractive than the £400 Bailey brief despite the life-and-death nature of Bailey's case.
A3.9) On Sunday May 4 the diary entry says Pickering spent seven hours of preparation for the television inquiry. The entry for Monday May 5 says he spent the whole of the Monday afternoon on the television inquiry preparation.
A3.10) But on Saturday May 10, after a full week concentrating on the inquiry, Pickering played golf in the morning. "Pain in my left shoulder. Home reading the Sundown murder. Iris [his wife] put on a turn because I have not taken her out lately."
A3.11) This was his first mention in the diary of the Bailey case since February 28. The entry suggests his concentration may have been affected.
A3.12) Unlike the previous Sunday when he had spent seven hours in preparing for the inquiry, the diary entry for Sunday May 11, with Bailey due to step into the dock the next day, reveals he played golf again, complaining about his left shoulder "which pained me all the round. Too much to drink before we started...Back to the library to work for an hour."
A3.13) Next, according to the May 11 entry, there were guests for a meal "then to bed to read the Sundown brief."
A3.14) So, affected by "too much to drink" the barrister entrusted with trying to save Bailey from the hangman spent many hours less preparing for this life-and-death case than he had for the television inquiry.
A4) SOCIAL OCCASIONS TOOK PRECEDENCE OVER THE BRIEF
A4.1) The May 10 and 11 examples of social occasions taking precedence over preparation for the Bailey case were also evident on February 24 and May 18.
A4.2) According to the diary entry for February 24 he attended a cathedral service to mark the opening of the legal year then had lunch, went to a judges' reception from 4.15 to 5.15pm and "Then back to the office for a while. Home and dinner about 7 and to work on the Sundown murder case for tomorrow."
A4.3) February 25 was the opening of committal proceedings against Bailey.
A4.4) The diary entries for May 22 and 23 make no mention of any work on the Bailey case.
A4.5) The February 24 entry was his first about the case since the 18th.
A4.6) On Sunday May 18 he "Did some work on Bailey's case until 12" before playing golf. The prosecution case finished the next day, meaning Pickering would be faced with the monumental task of making the defence case on the Tuesday.
A4.7) This lackadaisical approach to preparation would help to explain why Pickering had failed to spot the flaws identified in the alleged confession.
A4.8) In her 2009 paperJustice Kiefel said "...there can be no lack of interest by a barrister in the full and complete preparation of the case at hand."
A4.9) As referenced in the actual petition, The Hon Justice Michael Kirby AC CMG has written that: “…in keeping with greater realism, courts in Australia have developed principles to protect litigants from incompetent counsel…It is easy to be wise after legal events - a privilege that specially belongs to appellate judges. But today, where a person is denied a fair trial because of incompetent legal representation, the courts do not wash their hands; neither should they.” (2002 (23) Adelaide Law Review)
A4.10) In a 2016 paper "Incompetence of Counsel as a Ground for Appeal in the CCA" prepared for a legal conference, Peter Guirguis, Senior Solicitor, Legal Aid NSW, an accredited specialist in criminal law, analysed Nudd v The Queen [2006] HCA 9.
A4.11) He reports: "It was accepted by the High Court, directly and indirectly, that counsel conducted the trial incompetently." This was despite the judgement of guilt being upheld.
A4.12) Guirguis continues: "Each judgment placed considerable emphasis on the strength of the prosecution case, which was characterised as being “effectively unanswerable” (even allowing for evidence that might have been excluded if the trial were conducted by competent counsel). There was consensus among the members of the Court that, if the accused had been deprived of a real chance of an acquittal by reason of the effect of counsel’s incompetence, then the verdict could not stand. It was held ultimately that there was no failure of process that departed from the essential requirements of a fair trial, despite the fact that counsel was woefully incompetent."
A4.13) In the Bailey case the current petition makes clear that the prosecution case was demonstrably contestable and answerable, that the alleged confession was the only direct evidence advanced and that it was manifestly flawed.
A4.14) It therefore follows the above analysis of Nudd v The Queen that the accused was deprived of a real chance of an acquittal by reason of the effect of counsel’s incompetence and, therefore, the verdict cannot stand.
A5) EXCESSIVE ALCOHOL CONSUMPTION, MENTAL AND PHYSICAL IMPAIRMENTS
A5.1) There are further pointers to explain Pickering's failure to properly represent his client.
A5.2) Throughout the period when Pickering had the Bailey brief, he recorded his over-consumption of alcohol and the effect it had on him, as with the May 11 example already referred to in which he confessed "Too much to drink" before playing golf.
A5.3) April 11: "I will have to put my foot down about our pre-lunch drink. It usually turns into 3 and no one can work properly in the p.m."
A5.4) May 2: "Had a lot too much to drink."
A5.5) May 3. Saturday "Woke with a hangover and was reluctant to get up. Got breakfast and then returned to bed until 10."
A5.6) How much did he drink?
A5.7) January 4: "Home about 1am after consuming a lot of Scotch."
A5.8) March 29: "I brought John Dodds home and we consumed a bottle of Goddard's Rum. Then Iris and Judith came home and we had a few drinks with John."
A5.9) And the effect?
A5.10) Sunday March 9: "...had a party till 1am."
A5.11) Monday March 10: "Felt very jaded when I woke....Very tired all day. I must get some sleep. I have been sleeping badly and have got into the habit of waking about 3am and having to go to the toilet."
A5.12) Wednesday March 19: "I have been feeling tired and jaded lately...my sleep has been very broken for the last week."
A5.13) Thursday March 20: "I attended the Barossa Valley Bacchus Club dinner...finished in the bar at 2am."
A5.14) March 21: "Woke feeling somewhat lousy, a feeling which persists all day."
A5.15) Wednesday May 21: "So tired I could hardly work at all."
A5.16) Saturday May 24: Woke "with a heck of a hangover."
A5.17) Friday June 13: "Woke with a heck of a hangover and was tired all day."
A5.18) Hangovers and tiredness would not have been conducive to clear thinking, analysis and concentration, thus contributing to his incompetence.
A6) "A ROTTEN LABORIOUS WAY OF EARNING A LIVING"
A6.1) His references on March 10 and 19 to being jaded are reflected in his attitude to his work as a barrister.
A6.2) He recorded on April 28: "I am not at all happy about having to work so hard for such a small net return."
A6.3) And the next day: "Express Freight case all day. Am getting sick of it and don't know if I'm going to win...I shocked John Bray today by telling him I regarded the law lately as merely a rotten laborious way of earning a living."
A6.4) This "rotten laborious way of earning a living" is hinted at in a diary complaint on June 2: "Back to the office to work at high pressure on Bailey's appeal for tomorrow. He certainly is getting good value for the £400 I received from his father."
A6.5) He was having "to work at high pressure" because once again he had left such preparation to the last possible day because for the previous nine days he had driven to Melbourne and back to attend the Melbourne sittings of the television licence inquiry, despite the appeal being the last chance to save Bailey's life.
A6.6) The jaded state of mind is also evident when Pickering, who recorded that his earnings of £4,500 a year exceeded the chief justice's salary (diary March 27), referred in a dismissive way to the £400 provided by Bailey's father (diary February 12) which represented about six months' income for him, based on government statistics for the period.
A6.7) In her 2009 paper Justice Susan Kiefel said: "...it has always been understood that a barrister's conscience will guide them to provide assistance in a deserving case, to the extent that they can reasonably afford to do so."
A6.8) Pickering's state of mind and lack of dedicated time to the case calls into question whether he was fully involved in this aspect of his honourable profession.
A6.9) The deteriorating state of Pickering's state of mind and health reached a new low on the most crucial day of Bailey's trial. The QC had staked everything on keeping Bailey out of the witness box. Therefore, the entire defence case rested on Pickering making such a wholehearted and forensic speech that it would convince the jury to return a not guilty verdict.
A6.10) This is how he recorded the address in his diary:
"Woke feeling like a heart attack. Heart appeared to be operating very irregularly. Never felt like it before Bailey case. I started my address about 10 to 12. Felt better once I was on my feet. Finished about 3.30 and judge summed up till 5.30. Jury retire and we went down to the Thistle for a drink in the new cocktail bar and then had dinner. Verdict Guilty at 7.10 and sentence of death...Drove Arthur Mangan home and had a few drinks..."
A7) SUMMARY OF ARGUMENTS ADVANCED IN THIS ADDENDUM
A7.1) This addendum argues:
A7.2) That Pickering's approach to the case amounts to incompetence and negligence.
A7.3) Nudd v The Queen [2006] HCA 9 supports the view that where the accused was deprived of a real chance of an acquittal by reason of the effect of counsel’s incompetence in a case where the prosecution case was demonstrably contestable and answerable, the verdict cannot stand.
A7.4) The diary provides further evidence that Pickering believed the alleged confession rather than his client when he told the court his client had confessed to the murder, thus breaking Barristers Rule 2007, r 22 (as mentioned by Justice Kiefel in her 2009 paper) which prohibits the making of submissions or the expression of views which "convey or appear to convey the barrister's personal opinion on the merits of that evidence or issue."
A7.5) Rushed and insufficient preparation given to the case resulted in Pickering failing to analyse Hallahan's statement and the alleged confession, listing the crucial flaws and sufficiently cross-examining the detective on those flaws in his evidence and in the alleged confession.
A7.6) Diary entries make it abundantly clear that Pickering accepted a brief to appear at the television inquiry having already accepted the Bailey brief and prioritised the inquiry to the detriment of preparations for the Bailey case, resulting in insufficient preparation to properly defend Bailey. As Justice Kiefel pointed out: "...there can be no lack of interest by a barrister in the full and complete preparation of the case at hand."
A7.7) Pickering's somewhat dismissive attitude to having "to work at high pressure" for £400 suggests his mind may not have been fully devoted to providing "assistance in a deserving case, to the extent that [he could] reasonably afford to do so."
A7.8) Pickering's self-confessed over-consumption of alcohol, the resulting hangovers and lack of sleep, his jaded attitude and the statement that he "regarded the law lately as merely a rotten laborious way of earning a living" rendered him unfit to fully carry out his professional duties.
A7.9) All these reasons add to the those detailed in the February petition as to why a posthumous pardon should be granted to Raymond John Bailey and his conviction quashed.
SIGNATURES OF PETITIONERS
This addendum was researched and compiled by Stephen Anthony Bishop, PO Box 521, The Gap, Queensland, 4061.
Signed
Stephen Anthony Bishop.
Dr Robert N Moles, Networked Knowledge and Adjunct Associate Professor, Flinders University
Lola Jean Bateup, a sister of Raymond John Bailey
The Hon Mike Ahern AO, former National Party Premir of Queensland
Bruce Milne OAM
John Shobbrook, Redcliffe, Queensland
Submission of Warren Howell, BA, LLB (UQ), LlM ( Lon).
Barrister-at-Law Queensland 23 Nov 1965, Barrister & Solicitor TPNG 1968, Barrister-at-Law NSW 1983.
Member Honourable Society of Gray's Inn 3 March, 1971.
Magistrate Hong Kong 1972-73.
Queensland Bar Board Examiner (Old Rules), all 15 subjects 1974-77.
District Court Judge Queensland 26 July 1984--30 May 2009 (compulsory retirement at age 70).
Chairman Mental Health Act Patient Review Tribunal 1988-89.
I have read the April petition to the South Australian Governor seeking a posthumous pardon for Raymond John Bailey, found guilty at Adelaide Supreme Court in May 1958 of murder and hanged in June 1958; the May addendum to that petition; and excerpts taken from the 1958 diary of defence counsel Arthur Pickering QC.
As a result I submit:
Bailey was denied a fair trial because of the incompetence/negligence of defence counsel.
Defence counsel was incompetent/negligent in not cross-examining on the significant differences between the established facts of the killings and the contents of the confession, and internal inconsistencies in the established facts at the locus in quo.
Defence counsel was incompetent/negligent in not cross-examining on threats causing the false confession, in accordance with Bailey's unsworn statement from the dock, which further would have avoided the possibility of rebuttal evidence with its significant prejudicial effect.
Defence counsel was incompetent/negligent in not calling evidence including expert evidence on the said two topics.
Defence counsel was incompetent/negligent in his tactical overemphasising of the failure to warn, thereby attenuating much stronger points.
Defence counsel was incompetent/negligent in not giving real and appropriate emphasis in cross-examination and calling of evidence on the vulnerable state of the accused in the making of the confession.
Defence counsel was incompetent/negligent in not highlighting in cross-examination (and possibly in calling evidence) of the matters strongly in Bailey's favour of his not being the killer on the physical evidence at the scene.
Defence counsel was incompetent/negligent in not calling Bailey's father-in-law to give evidence. Alternatively he should have strongly submitted for an adjournment until the father-in-law could give evidence.
Crown counsel breached his duty in not calling Bailey's father-in-law, alleged to be a crucial witness in possession of direct evidence. Alternatively, Crown counsel should have asked for an adjournment until the father-in-law was available to give evidence.
Different counsel other than Pickering QC should have argued the appeal to pursue the argument that Bailey was denied a fair trial by virtue of the incompetence/negligence of Pickering QC on the grounds detailed above.
The verdict of guilt is against the evidence and the weight of the evidence. It would be unsafe, unsatisfactory and dangerous in the administration of justice for a verdict of guilt to stand.
I had a virtually exclusive Criminal Practice at the Queensland Bar (70% defending and 30% prosecuting) from November 27 1965 to July 25 1984.
At the Bar, one was only too aware of Detective Hallahan's reputation for corruption, dishonesty and involvement in serious crime. I cross-examined him on a number of occasions. I am hamstrung in my detailed criticisms of Detective Hallahan in referring to information from clients on serious charges because of limitations imposed by legal professional privilege.
STATEMENT IN SUPPORT OF THE PETITION SEEKING A QUASHING OF THE CONVICTION OF, AND PARDON FOR, RAYMOND JOHN BAILEY
My full name is Francis Leonard Lippett.
Relevant experience
Between 1965 and 1974 I was a Queensland Police Officer, serving primarily as a detective at the Brisbane and environs Criminal Investigation Branch. From 1974 to 1978 I was a detective with the then Commonwealth (now Federal) Police. Between 1979 and 2019 I was a barrister in practice at the private Bar in Queensland and New South Wales, with occasional forays into South Australia, Tasmania and Victoria.
While in practice I held part-time appointments as the president of the Brisbane and then the Queensland Corrections Board (Parole Boards), and later as president of the renamed Queensland Parole Board. Parole Board work spanned about nineteen years, for three of which I was also the vice-president of the Association of Paroling Authorities International.
When a Queensland detective, I was put to work with Glen Patrick Hallahan for about three weeks until he requested another partner, as we had quite different standards and attitudes. Throughout my Police service and afterwards, Hallahan, another detective named Murphy and Terry Lewis who became the Police Commissioner, were reputed to be involved in serious criminal and corrupt activity. It was not just inappropriate office gossip, but a series of accusations by a number of respected detectives, although hard evidence was lacking. His propensity to fabricate evidence was confirmed by at least three Courts, as detailed by the petitioner. Hallahan had died by the time his close acquaintance Terry Lewis was charged and sentenced to fourteen years’ imprisonment.
My experience and observations during the late 1960’s and early 1970’s was that the fabrication of a confession (“the verbal”) was a weapon regularly wielded by corrupt detectives, who did not hesitate to boast about it to their workmates. The social climate of the time was that some judges, magistrates and juries were aghast at the proposition that a Police Officer would tell a lie, and believed unhesitatingly that the only person not telling the truth was the defendant. That view increased the boldness of corrupt police. During my eight years as an active detective, which involved giving evidence a number of times, my evidence was not ever challenged. Further, proper investigation most often resulted in the offender pleading Guilty.
Material considered
I have read the Petition and supporting documents as well as the Judgment of the Supreme Court (in Banco) which dismissed Bailey’s appeal. The thoroughness and accuracy of Mr Bishop’s material cannot be disputed; and it is not intended to regurgitate it, but to highlight some aspects about which I believe I am qualified to comment.
Association with the Petitioners
I have met only one of the Petitioners, Judge Howell. Until reading the material, I had not heard of Bailey’s case.
Submission as to what would be a just outcome
In my respectful submission, it would be just to either pardon Bailey, or quash his conviction. If those outcomes are thought too extreme at this stage, then the case could be thoroughly and fully ventilated in the Court of Appeal as a first step. It is not suggested that the Supreme Court erred in 1958. However it is now possible to consider the evidence in the light of what is now known about the activities of Glen Patrick Hallahan, without whose evidence the prosecution would have surely failed.
The confession/s
At trial and on appeal, defence counsel relied upon the narrow ground that Bailey was not warned about his right to silence until it was too late, in contravention of the Judges’ Rules. There was no cross-examination or appeal submission alleging that either the confession to Hallahan or the refinement of it by the South Australia detectives was fabricated.
That may have been due to inadvertence or may have been a deliberate tactic, given the community’s general unwillingness to accept that Police Officers perjured themselves. It is noted that defence counsel wrote in his diary that Bailey would be “sunk” if he gave evidence. That view may have been the product of a belief that Bailey was guilty and would not fare well in cross-examination; or it could have been because he knew Bailey would claim that he did not confess, and that proposition was likely to be rejected by the jury.
Whatever the reason, it is submitted that the flaws in the fabricated confession/s raise more than a reasonable doubt about Bailey’s likely guilt.
Flaws and contradictions in confession
The contents of the alleged confession are to be considered in the light of Hallahan’s concession at trial that when he interviewed Bailey, he had only “a summary” of the murders.
Method of killing
The pathologist’s opinion was that all three victims had their skulls fractured before being shot; and in his opinion they were all killed where they were found. But according to the confession, Bailey took all the victims to another place some distance away after killing them.
The confession also had him saying that he shot Thyra Bowman as she walked towards him. The pathologist said she was shot in the back of the neck as she lay face down on the ground. The confession claims Bailey said he hit Wendy Bowman on the head with the rifle butt, causing her to fall down. Then he shot her as she was getting up. The pathologist said
she was shot through the head while lying on the ground with the right side of her face facing downwards.
The weapon
Bailey obtained a Huntsman rifle before leaving South Australia, but did not have it in his possession when searched at Mt Isa, and explained the disposition of it. The victims were in possession of a Sportsman rifle. There are distinct differences in appearance between the two.
The confession claims Bailey said that he saw his rifle, broken and covered in blood, on the front seat (of a car) at the scene. The only rifle at the scene was broken and had blood on it, but it was the Bowman’s Sportsman.
That means, according to the confession, there was sufficient light available for Bailey to see that the gun was broken, and was able to see blood stains, but was not able to discern that it was not his rifle.
It is emphasised that on his own admission, Hallahan was not in possession of the details of the murder scene when he interviewed Bailey.
The confession claimed that Bailey said he threw the murder weapon, his rifle, out the car window after leaving the murder scene and before arriving at Alice Springs. There was substantial publicity about a search that the police said was to be made, in company with Bailey, for the missing weapon. There were even blacktrackers engaged to help. However at trial it was conceded by a South Australia detective, one Moran, that no search for the weapon took place, with or without Bailey.
It is submitted that the only likely reason to call off a planned and announced search would be because other police realised, or suspected, or were told by Hallahan, that the rifle would not be found because he had fabricated that part of the confession.
The father-in-law
While at Mt Isa, Bailey made arrangements for his father-in-law, a Mr Hudson, to travel from his home in Dubbo to Mt Isa to visit him at the police station. That visit, according to Hallahan, started at 7.30pm on Saturday 25 January 1957. Hallahan claimed that in his presence, Bailey confessed to his father-in-law. Bailey later denied having done so.
If Hallahan’s version of events was the truth, then it would have been fundamental police practice to obtain a written statement from Mr Hudson as to what Bailey had said as soon as possible, given the extreme importance of his evidence as a relative who was able to give sworn evidence of admissions of guilt. Astonishingly, it seems Hallahan did not obtain a written statement from Mr Hudson.
The only written record which was created about the alleged conversation was made by Hallahan, and that almost a month after the conversation took place. Hallahan’s record was created on Friday 21st February. The committal proceedings were listed to commence on Monday 24th February.
At the commencement of the trial, the Crown Prosecutor told the jury that Mr Hudson would be an important witness. However he was not called by the Crown, and no reason was advanced by the Crown for the omission to call him. It is submitted that the likely reason to not call such an important witness was that the Crown Prosecutor was either told, or came to believe, that Mr Hudson could not confirm Hallahan’s version of the conversation.
Bailey told the Court that he believed Mr Hudson did not attend because he had the mumps. But there was no medical or other evidence adduced to indicate either that Mr Hudson was sick, or that he could not travel to the Court. And it was the Crown’s responsibility to deal with the situation, not the accused’s. The Crown Prosecutor could have sought an adjournment until Mr Hudson was able to attend. The fact that the Prosecutor did not do so leaves the inference open that a forensic reason emerged for the Crown not wanting him present.
Hallahan’s reliability
Bailey and his wife were travelling in a black de Soto car. There is a plethora of evidence that the South Australia investigators told other Police, including those at Mt Isa, that they were interested in speaking with the occupants of a black de Soto in connection with the murders.
Hallahan gave evidence that he saw a black de Soto with South Australia registration at 5.00pm in Mt Isa, and waited nearby until 6.20pm when the occupant (Bailey) returned to the vehicle. It was then that Hallahan and his partner, a Detective Pfingst, started to question Bailey about his ownership of the vehicle. In Court, Hallahan claimed he did not know at that time that the vehicle was of interest to the murder investigators, but alleged the two detectives were watching the car because “of information received.” If that was the truth, the information must have been about the acquisition of the car by false pretences, with which Bailey was later charged. It is to be noted that Hallahan claimed to have not been told the registration number of the wanted car before his afternoon watch.
In other words, on Hallahan’s version of events, he was ignorant of the South Australia police notices of interest in the vehicle over the murders, despite being a detective in a small town on a main outback route from the Northern Territory to Queensland. But he did receive information about a fraud concerning the same car from the same State, even though it related only to a de Soto car with an unknown registration number.
Second, there is the aspect of Hallahan’s interview with Bailey. When he questioned him about the car, and charged him with false pretences, he had Detective Pfingst with him. That accorded with standard police practice to have a corroborator present who could give evidence of what was said.
However there was a curious system employed by Hallahan when Bailey was interviewed about the murder. The District Inspector at the time was a man named Norwin Bauer. Hallahan questioned Bailey about the murder on 22 January, between 10.30am and 1.30pm. In evidence, Hallahan said: “Bauer was present for most of the interrogation. He went out on quite a few occasions.” Hallahan said he cautioned Bailey about his right to silence at 12.15pm, and that Bauer was present when the caution was administered “and was present thereafter.” He gave evidence that the interview continued for “about twenty-five minutes” after the caution.
Several points arise from that evidence. First, the only reference to Bauer in Hallahan’s statement for Court was that Bauer was present when Bailey was cautioned at 12.15pm, and was present for the remaining twenty-five minutes of the interview. It was only when giving evidence that he first mentioned that Bauer was present intermittently between 1030am and 1215. The obvious question is why an investigating detective would not have mentioned the
whole involvement of the District Inspector in his Court statement, if Bauer was in truth present earlier.
Second, it appears from the material that Bauer was not called to give evidence even though, at least potentially, he could have given evidence corroborating the confession, if it had been made. It beggars belief that the Crown Prosecutor would not either call him, or at least have him at Court in case the genuineness of the confession was challenged.
Third, there must be only a small likelihood of the District Inspector being used as a silent witness during a murder interrogation, rather than another detective such as Pfingst who was present during the previous day’s interviews about the car, or a uniform Police Officer.
Fourth, Hallahan’s claim that Bauer was absent from the interrogation “on quite a few occasions” means that even if Bauer had been sometimes present, there was ample opportunity for Hallahan to apply his over-bearing and intimidating tricks without a witness; and also to be able to claim Bailey had confessed when Bauer was absent. Further, the likelihood of the District Inspector offering or agreeing to the corroborator’s role, but then not remaining in the room for three hours must be remote. It has to be highly unlikely that matters of urgent district importance arose several times during a two hour period (10.30am to 12.15pm) on a Tuesday in Mt Isa.
Fifth, this is the only occasion on which I have experienced or been told that a detective noted the specific time a caution was administered. There is no point in doing so in the event of a genuine confession and genuine caution. But if both were fabricated, a note of the time of the alleged caution might bolster the stocks of the detective in the minds of the jury, in that he would be seen as a thorough and meticulous person. The whole of Hallahan’s evidence about Bauer smacks of falsity.
Identification evidence
After Bailey had been charged, his car was taken to a police holding yard. Kulgera is a small town about twenty kilometres north of the South Australia border, on the road to Alice Springs. The Kulgera storekeeper, a Mr Wilkinson, was interviewed and taken to the holding yard to view the vehicle. The prosecution case included an allegation that Bailey bought petrol at Wilkinson’s store.
Mr Wilkinson gave evidence at the committal proceedings about a black car having passed through Kulgera, but he was unable to recall details. However at the trial he was definite about the car and the date on which he saw it. Mr Wilkinson said his memory was improved by seeing Bailey’s car at the police holding yard.
Importantly, when asked about identification of the car’s occupant, Mr Wilkinson looked directly at Bailey, and said: “I have never seen this man before this Court case.”
There does not appear to have been any connection between Mr Wilkinson and Bailey. He was just a storekeeper from a small town giving honest evidence. His certainty of never having previously seen Bailey should have raised a doubt in the jury’s collective mind. But it did not, highlighting the importance of the confessional evidence.
Footprints
There was evidence that some shoeprints of varying sizes were found at the murder scene. They were estimated to be between sizes seven and ten. Bailey’s shoe size was five and a half or six, depending on the brand of shoe. Once again, the discrepancy should have caused the jury some concern. But again the belief in the truth of the fabricated confessions carried the day.
Defence counsel
Defence counsel in criminal cases must sometimes make important but difficult tactical decisions. Often there are simpler alternatives, but counsel usually try to make the decision which will be most likely to help the client. In so doing, tactical mistakes can be made. In the present case, it could be that counsel did not prepare as thoroughly as would be expected, as the petition suggests. Alternatively it could be that the wrong tactics were chosen.
It was not put to Hallahan that the confession was a fabrication, and he was not subjected to rigorous cross-examination about its flaws and contradictions. And it was not put to the South Australia detectives that they refined the confession to make it better align with the evidence. Consequently the jury did not have an opportunity to even consider the possible falsity of the confessional evidence.
As the Crown did not call the father-in-law Mr Hudson as opened, defence counsel could have done so, or sought an adjournment if the witness was ill. Not doing so deprived Bailey of an important opportunity. According to Bailey’s statement, which presumably was in line with his instructions, Hudson’s evidence would have been that Bailey did not confess to him.
Hallahan should have been cross-examined about the falsity of that part of his statement and then evidence led from Hudson about there not having been a confession in his presence. In relation to the alleged confession to Hallahan, to not cross-examine about it being fabricated but to rely only on the narrow ground of a caution not having been made earlier than it was, was a serious error.
Conclusion
I accept and unreservedly endorse the worth of all the contents of the petition. This statement is intended to reinforce some of the points already made, from the perspective of personal experience.
My ultimate submission is that the system of administration of justice would be best served in this case by granting Raymond John Bailey a pardon, and quashing his conviction; or at least having the whole case ventilated in the Court of Appeal.
Thank you for considering the matter.
RELEVANT EXTRACTS FROM THE PERSONAL 1958 DIARY OF ARTHUR PICKERING QC
Direct references to the Bailey case are in bold. All words contained in quotation marks are Pickering's words, phrases and sentences quoted exactly from the diary. Underlinings are used for emphasis.
January
1: "My health and resilience to alcohol seem better than ever before."
4. "Home about 1am after consuming a lot of Scotch."
21: "We are about £3,000 down on last year."
February
3: "It is incredible how this practice has grown in the last 10 years. Last month's salary bill was £631 which is a lot."
"Got my tax assessment £4,400 which is fantastic."
12: "Arthur Mangan briefed me on Sundown Murders case R v Bailey (murder of 3 people near Sundown Station) at a fee of £400. The defendant's father is putting up
£500."
14: After collecting an Electrolux cleaner from a shop at 8.45am "Then to the office where I prepared a statement in R v Bailey asking that preliminary hearing evidence be not published....and then to court where I made my request asking that it be considered(?) until March 25 when I would renew it."
18: 4pm "Then a conference with Arthur Mangan re Sundown Murders and home to dinner."
20: "Worked hard in the office all day - mostly on an opinion for Dave Waterhouse re MLC Building and Fricker Bros Ltd."
21: in the morning in court for a careless driving case. "Spent the rest of the day working on the MLC opinion....Drinks at the club then home with Bob and Don Westwood for more drinks with the three wives...Bed about 1am very tired.:
22. Saturday golf and drinks. No work
23. Sunday afternoon party. No work.
24: Cathedral for opening of the legal year. Lunch. Judges' reception 4.15 to 5.15. "Then back to the office for a while. Home and dinner about 7 and to work on the Sundown murder case for tomorrow."
25: "Sundown murder case started before Clarke SM R v Bailey, Eb Scarfe prosecuting. Arthur Mangan and I for defence. Clarke ruled against my request to prohibit publication of evidence but Scarfe did not open the confession. Crowds waiting to enter and loads of press reps."
Later: "Home working in the evening."
26: "Sundown case. Tremendous publicity. Case is faring alright at present." Rotary bowls in the evening. Tea on the lawn.
27: "Sunshine murder all day. Rather cooler. Cross-examined fingerprint expert O'Neill and others. Not sufficient evidence yet to convict....Home with Iris in the evening."
28: "Sunshine murder case all day. SM cleared the court to hear the police evidence which means the confession will not be published. A major victory for which I have been striving all the week. To the club then home."
MARCH
1: Saturday. Golf. Drinks. "Home about 7. Rather merry."
2: Sunday "Up for breakfast at 10 and to Bruce Thompson's at 11.30 for a morning party."
3: "All morning finishing up Bailey case in p/ct. Police evidence given in camera so no press reports and the case fizzled out like a damp squib."
9: Sunday party till 1am
10: "Felt very jaded when I woke....Very tired all day. I must get some sleep. I have been sleeping badly and have got into the habit of waking about 3am and having to go to the toilet."
13: "Bailey case is being put off until 28th April."
18: "Arranging to postpone Bailey's case so as to take on T.V. application."
19: "I have been feeling tired and jaded lately...my sleep has been very broken for the last week."
20: Thursday "I attended the Barossa Valley Bacchus Club dinner...finished in the bar at 2am."
21: "Woke feeling somewhat lousy, a feeling which persists all day."
27: Legal cocktail party with judge Geo Ligertwood. "...Geo wrote a complaint about judges' salaries - actually well justified as the c/sol gets £4,150 and a judge only £4,000.Rather ludicrous that my i/tax £4,500 exceeds the cj salary."
29: "I brought John Dodds home and we consumed a bottle of Goddard's Rum. Then Iris and Judith came home and we had a few drinks with John."
APRIL
11. Friday "...I was tired all day. We are all going to be excessively busy for the next few weeks. To the club for lunch. I will have to put my foot down about our pre-lunch drink. It usually turns into 3 and no one can work properly in the p.m."
28: "I am not at all happy about having to work so hard for such a small net return."
29: "Express Freight case all day. Am getting sick of it and don't know if I'm going to win...I shocked John Bray today by telling him I regarded the law lately as merely a rotten laborious way of earning a living."
MAY
1. Thursday "Express Freight case all day. Judge summed up at 4pm after eight days. Dinner at home and then read 2nd day's TV transcript."
2: "Had a lot too much to drink."
3. Saturday "Woke with a hangover and was reluctant to get up. Got breakfast and then returned to bed until 10." Golf.
4. Sunday "At 4pm Bill Sykes arrived and conference re TV application till 6pm. Reading Brisbane transcript till 11pm."
5. Lunch "Then office trying to complete preparation for TV case tomorrow.
6. Television inquiry where Frank Packer and Rupert Murdoch were vying for licences and were represented by QCs. Pickering and Bill Sykes appeared for TV Broadcasters, sponsored by advertisers. Conference about the inquiry until 10.30pm.
7: TV case all day. TV conference and then ball until 12.30am.
8. "TV case all day." ..."Young Ruprt Murdoch. I'm rather sorry for him. Brilliant father. He is trying very hard to make good but is too young and naive."
9. "TV case all day." Family gathering till midnight.
10: Saturday golf. "Pain in my left shoulder. Home reading the Sundown murder. Iris put on a turn because I have not taken her out lately."
11. Sunday golf. "...I had (??) in my left shoulder which pained me all the round. Too much to drink before we started..." ..."Back to the library to work for an hour." Guests for tea..."then to bed to read the Sundown brief."
12: "Sundown murder case...Spent all morning submitting evidence of confessions should be excluded but Reed J let it in. I think I could toss(?) his ruling in the H Ct but if Bailey gives evidence he will be sunk." Home at 10pm after drinks.
13. "Sundown murder" There is nothing further about the case on this day.
14. "Sundown case all day...Straight home from court and to work after dinner."
15. "Sundown murder all day...Still on Crown case" guest for dinner. "I worked on the case."
16. "Bailey's case all day."
17. Saturday. "To Adelaide Gaol for an hour with Bailey finishing his statement. Then to golf..."
18. Sunday "Did some work on Bailey's case until 12." Then golf.
19: "Bailey case all day...Evidence finished at 4.15 with Bailey making an unsworn statement during which 2 women were dragged out screaming "Hang him".
20. "Woke feeling like a heart attack. Heart appeared to be operating very irregularly. Never felt like it before Bailey case. I started my address about 10 to 12. Felt better once I was on my feet. Finished about 3.30 and judge summed up till 5.30. Jury retire and we went down to the Thistle for a drink in the new cocktail bar and then had dinner. Verdict Guilty at 7.10 and sentence of death." ..."Drove Arthur Mangan home and had a few drinks..."
21. "So tired I could hardly work at all."
24. Saturday he drove to Dimboola and on the Sunday to Melbourne to spend the week working on the TV inquiry for four days and having a day off with friends and family on the Friday, driving back to Dimboola on the Saturday and to Adelaide on Sunday. He had woken "with a heck of a hangover..." on the 28th.
JUNE
2. Monday "Back to the office to work at high pressure on Bailey's appeal for tomorrow. He certainly is getting good value for the £400 I received from his father." Then lunch.
3. "Bailey's appeal from his conviction for murder...Argued all day and finished tired out. Took the car in to clean up for a new engine."
4. "Bailey's case all day. They are going to decide against me."
5. "Arthur Mangan went down to the Gaol and saw Bailey who is resigned to being executed next Tuesday and does not wish to appeal to the HC."
13. "Woke with a heck of a hangover and was tired all day."
16. Monday. Queen's Birthday. To Mount Lofty and played golf with Iris and John Dodds. Half way round I developed what I thought was a migraine headache and could not focus my eyes sufficiently to putt. Got John to drive me home where I was violently sick. Went to bed and developed paralysis of the left leg and arm in the night. Dr Dick Bennett and John McPhie diagnosed a cerebral thrombosis, a blood clot and I then spent the next six weeks in bed hovering between life and death...Now after nearly six weeks (July 24) I am able to walk with a stick and sit by the fire which relieves the tediousness of lying all night and day in bed."
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