HOW THE SOUTH AUSTRALIAN JUSTICE SYSTEM KILLED AN INNOCENT MAN
Presentation to the Julian Wagner Memorial Fund and Australians Against Capital Punishment by Steve Bishop on March 9 2023 at Brisbane Magistrates Court.
I'm going to tell you about a cold-blooded triple murder, a naive young man charged with murder by a detective who had no scruples and a barrister who drank too much and chose to believe the detective rather than his client.
It's December 1957. The naive young man was Raymond John Bailey, aged 24, who'd left school in Dubbo at 14 and become a carpenter. He and his 22-year-old wife Patricia were travelling round Australia with their four-year-old son in a black DeSoto car and caravan.
They'd stop in towns where Ray would work for a few weeks and then move on. He'd left Dubbo, he said, because his wife was run down and nervy to see if it would improve her health.
He recalled: "While we were on this trip was the happiest time of my life."
They were driving north from Whyalla in South Australia to Mt Isa via Alice Springs while travelling in the opposite direction were Thyra Bowman, aged 43, her 14-year-old daughter Wendy, and 22-year-old family friend Tom Whelan, on a 1,700 kilometre drive south from a property west of Alice Springs to Adelaide.
There was no Stuart Highway as we know it. Most of the journey was on a rough track which meandered over sand, rocks, roots and gravel.
There were no towns in the 680 kilometres between Alice and Coober Pedy and it was common for people to set up overnight camps beside the track.
With only a couple of dozen cars a day wending their way over the dirt track for hundreds of kilometres in extreme heat, it was usual to stop and chat to other drivers in passing to make sure that everyone was OK and to enquire about conditions ahead. It was part of the Outback code of caring for one another in this inhospitable land.
The Bowman trio was reported as being overdue on December 8.
Their bodies were found in bushland at Sundown Station near the track on December 13. They had been murdered.
People on isolated stations kept in touch via pedal-powered flying doctor radios but it didn't take long for news that a triple murderer was on the loose to spread.
Doors that had never been locked at night were now secured.
Wheel tracks at the scene had been left by a car towing a trailer. An oyster coloured Ford Zephyr and trailer had called in at the nearest petrol bowser and the hunt was on for the driver, described as a migrant, and a woman passenger. Road blocks were set up on all roads and tracks which could have been used by the driver.
The murders were front page news every day until Christmas Eve.
By January 3 The Courier-Mail in Queensland was reporting: "After interviewing hundreds of people in the outback and relatives, police today admit they are no nearer solving the triple murder. Police have dropped their search for the oyster grey Zephyr.”
The hunt had gone cold but pressure on police to find the triple murderer had hotted up considerably.
Then, more than a month after the murders, a woman said she remembered seeing a caravan with odd-shaped windows near the scene of the murders.
Police in Adelaide started checking the registrations of 82,000 caravans in South Australia. They came up with the name Raymond John Bailey. The detective in charge of the search issued an all-stations alert that there was no doubt Bailey could be of assistance.
Bailey was arrested on January 21 by Queensland detective Glen Hallahan in Mt Isa - nearly 1,900 kilometres away from search HQ in Adelaide.
The police had been under intense pressure for six weeks to catch the Sundown Murderer. Two Adelaide detectives - Edwin Hopkins and Kevin Moran - were still making enquiries in central Australia.
A sense of triumph was such that Hopkins recalled in his memoirs: “On 21st January we...were advised by radio to return to Alice Springs immediately, because the offender had been arrested at Mt Isa.”
At 25, Hallahan was reported to be the youngest detective in Queensland and was the officer in charge of Mt Isa CIB. His superior officer in the region was Inspector Norwin Bauer who, according to Bjelke-Petersen minister Don Lane in his memoir, was corrupt and protecting two illegal betting shops in Cloncurry.
Within months, both Bauer and Hallahan would be recruited by corrupt commissioner Frank Bischof to positions in Brisbane. Hallahan would become notorious as an inventor of confessions, persistent perjurer and alleged criminal mastermind and heroin importer.
It was reported that phone calls had been made between Adelaide and Mt Isa on the night of the 21st.
Hallahan would say in court that when he interviewed Bailey: "I did have some details of the Sundown murders. I had a summary of what had happened, including the fact that a rifle had been used.”
But according to newspaper reports police had not discovered a motive for the murders.
On January 22, the day after the arrest, Hallahan wrote an alleged confession by Bailey.
What motive could there have been for the three murders?
He quoted Bailey as saying he had shot Whelan by accident at a camp site the three victims had established and had then blacked out before realising he must have killed the other two as well.
The trial heard that when the two Adelaide detectives - Hopkins and Moran - arrived in Mt Isa to take over the case, Hallahan locked them into his written account of the alleged confession by reading it out to them in front of Bailey - a 20-minute process.
But they had major problems. The post mortems in Adelaide had not been completed until the day before Bailey's arrest, so it was unlikely a written report would have been available to the detectives.
Hallahan's alleged confession has Bailey saying the three people were sleeping on the ground at the camp site when he approached in the dark.
"I was about 12 feet away from them and a dog jumped out and barked. I fired a shot at it. When I fired the shot the young fellow jumped up off the ground and screamed and fell over and I knew that I had shot him."
But the post mortem found Whelan had been shot twice in the back as well as being shot through the back of his head - all at close range.
"I loaded my rifle again and aimed it at the older woman who was rushing towards me and fired. She fell down straight away."
But the postmortem found she had not been killed in this way but had been shot in the back of the neck with the bullet passing through the roof of the mouth and into the brain.
"The young girl rushed at me too, so I loaded again, aimed it and shot her. She fell down too."
But the pathologist reported: “The only position I can envisage is that she was lying on the ground with the right side of the head downwards when she was shot through the head”;
"I was only about three yards from them. I shot from the waist."
But the post mortem found all three had been shot at close range.
The alleged confession has Bailey saying he put three corpses in the victims' car and drove them into the scrub where he laid them under a tarpaulin.
Wrong again! All three were found to have been alive when moved from the campsite.
The descriptions of the shootings were completely wrong. The killer had fractured the victims' skulls at the camp site which had resulted in extensive bleeding on the ground when they were dumped more than a kilometre away.
Even the prosecution demolished Hallahan's alleged confession, with prosecuting counsel telling the jury: “Dr Dwyer will tell you that the skulls of all three victims were bashed in before they were shot.”
So the bullets that killed them were not fired at the camp site as described in the alleged confession.
Hallahan had obviously not read a well-informed article from The Adelaide Advertiser of December 23 1957: "Recent developments in the Sundown triple murder investigation indicate that the victims were probably battered about the head as they lay asleep at their roadside camp fire. This has given an entirely new aspect to the murder, suggesting that it was carefully premeditated and that the murderer followed his victims and waited his chance to attack them when they were resting at night. After the battering it is thought the murderer shot the three people with a .22 different from that of Wendy Bowman..."
This chronology ties in with the January post mortems and is a lot more accurate than Hallahan's fiction.
There was one more crucial finding from the post mortems.
In examining Whelan's injuries the pathologist referred to a a broken, blood-splattered Remington Sportsmaster rifle found with the bodies and reported: “…the fractures on Whelan’s skull were consistent with having been caused by a blow from this rifle butt.”
But Hallahan was unaware of the Remington rifle when fashioning the confession.
Police would allege that Bailey had carried a Huntsman rifle and Hallahan had Bailey confessing that when he returned to the victims' car the next morning: “I saw my rifle on the front seat. The wooden part of it was broken and it was covered in blood.”
But it was the Remington rifle that was broken - and it had belonged to the victims, not Bailey.
Tellingly, there is no mention anywhere in Hallahan's alleged confession that the victims possessed a rifle nor how Bailey not only accessed it but how and when he bludgeoned the victims unconscious.
How would a passing stranger have known the Bowman party possessed a rifle and known where to locate it in the dead of night in order to fracture three skulls?
Why would he have risked waking the victims if he was already carrying a rifle?
What is also missing from the story is a motive for going to a lonely campsite in the middle of the night while allegedly carrying a rifle.
Where was the smoking gun - the Huntsman rifle which police alleged Bailey had used to shoot the victims?
Bailey said in a statement he didn't have a rifle with him at the time of the murders.
But the alleged confession had him throwing a Huntsman rifle away after the murders while driving near Alice Springs.
On January 23, 24, 25, 28, 29 and 30, while Bailey was still in Mount Isa, newspapers quoted police as saying it was their intention to take him back to the road south of Alice Springs to search for the rifle.
Police even told newspapers that black trackers had been assembled ready for the search.
But Bailey was flown straight to Adelaide, was never taken to the area where an alleged murder weapon had supposedly been dumped and no search was ever undertaken.
So why wasn't he taken there?
Could the reason be that the confession was a fabrication and, therefore, it would have been absolutely pointless?
The mis-identification of rifles remained in Hallahan's evidence at the trial.
How did Hopkins and Moran tackle this contradiction?
Hopkins testified that when he had arrived at the murder scene in December he had identified the gun found with the bodies as a Remington.
But when Hopkins and Moran questioned Bailey after taking over from Hallahan they failed to ask him a single question about the Remington.
Having avoided mentioning the Remington, the pair then removed all embarrassing mentions of it from the signed confession they alleged they had obtained.
And although the false account of the murders remained in the document which Moran and Hopkins presented to the jury, references to Bailey having seen his gun bloodied and broken in the victims' car had vanished.
This major contradiction may have disappeared from the signed document but it remained as a side issue in the record of interview.
Moran: We have had a conversation with your wife and she told us that...after you washed the car and returned to your car and caravan where she was waiting for you, this is Friday 6 December, you had a rifle in your hands which she recognised as being yours. You showed it to her and the stock was broken and there was blood spots on it."
Bailey: 'Yes. That is right.'
So we have yet another version of the broken rifle having been a Huntsman belonging to Bailey and not the victims' Remington.
The confusion was made worse by the Moran and Hopkins version of the alleged confession quoting Bailey as saying that on the morning after the killings he had used his gun to shoot two dogs and that when he threw away his gun the stock was only cracked and not broken.
The prosecution had an alleged confession full of holes and no smoking gun.
But it was the only direct evidence against Bailey. There was no corroboration.
Going back to the days before the committal, I suggest Hallahan realised the prosecution case needed shoring up with some corroboration.
On the last working day before Bailey's committal was due to start, Hallahan typed a statement in which he alleged there had been a conversation between Bailey and his father-in-law, David Hudson, nearly four weeks earlier on January 25.
Hudson had driven from Dubbo to Mt Isa to collect his daughter and grandson
The statement included an alleged verbatim exchange of 180 words between Bailey and Hudson in which Bailey had confessed he had killed the three people. It was given in evidence at the committal by Hallahan.
In cross-examination he admitted he had "made no notes concerning the conversation of Saturday 25th January" before typing the statement on February 21.
Quite a feat to remember a conversation, word-for-word - four weeks later!
Strangely, on the other hand, Hallahan had written a copious account of his interview with Bailey on January 22 but said during cross-examination at the committal: "I cannot remember accurately, without reference to those notes, what was said.."
At the actual trial prosecuting counsel Eb Scarfe, in opening the case, said: The Crown case, that Mrs Bowman was murdered by Bailey, is composed of two branches, circumstantial and a confession by Bailey that he killed all three.”
After mentioning the circumstantial evidence Scarfe said: "The second branch was what Bailey said to Detective Hallahan of the Queensland Police, and to Detectives Moran and Hopkins of South Australia, and to his own father-in-law."
Despite the suggestion to the jury that Hudson's evidence would be crucial he was never called.
The alleged confession remained uncorroborated and was the only direct evidence.
The jury was not warned of the dangers of convicting an accused where a disputed admission is the only, or substantially the only, evidence.
There had been another attempt to shore up the case before the committal.
In February 1958 possible witnesses were taken to an Adelaide police yard and shown Bailey's DeSoto car and caravan.
At the committal Scarfe was adamant in his opening address that on the morning after the killings: “Mr Wilkinson, the storekeeper at Kulgera, saw a dark-coloured car and caravan which pulled up for petrol.”
But Wilkinson said in evidence at the committal: “I was asked to recall all the vehicles I could remember that passed through Kulgera on the Friday and I told the police all I could recall. The De Soto was not one of them.”
By the trial Scarfe was reduced to saying: “On December 6, a Kulgera storekeeper, Wilkinson, had a vague recollection of a car resembling Bailey’s passing through.”
Even worse for the prosecution, at the trial Wilkinson looked directly at Bailey and said: “I have never seen this man before this court case.”
Under cross-examination he admitted he had not said a word about the black car and caravan until shown them in the Adelaide police yard in February.
On the topic of shoring up the case, Hallahan searched the car and caravan on January 21.
There’s a photograph on the front page of the Adelaide News for Saturday January 25 of a Detective Pfingst searching the DeSoto.
Detective Moran said that when he searched the car on January 22 there was quite a lot of junk and: " We took it out into the open and then returned it to the car."
We're certainly entitled to believe that in such an important and much-publicised murder investigation those searches would have been thorough.
And Hallahan swore: "The car and caravan were both carefully searched."
Miraculously, ballistics expert Ivan Patterson was able to report that: “On Tuesday February 4…"I searched the DeSoto sedan car…and I found under the floor mat on the right-hand side of the front compartment…a .22 calibre ICI high-velocity long or long-rifle cartridge case.”
He said it had been fired from a Huntsman which police had sought to link to Bailey.
It seems odd that neither Bailey when he was driving the car nor any of the other police who had searched the car had noticed a lump under the mat.
Why would a murderer - said by Scarfe to be "very cunning" - have placed an incriminating cartridge case under the mat?
There was another miracle to come. The caravan had been searched by the police since January 21, yet on February 14 the incredibly lucky Patterson was able to find another cartridge case in a small cupboard in the caravan – and identify it as having been fired by the same Huntsman.
Why would a very cunning murderer pick up two incriminating spent cartridge cases from the murder scene and put one in his car and another in his caravan while leaving three behind in easily discoverable circumstances?
And why would he keep the two cartridge cases rather than throw them away at the first opportunity?
Back to the case.
There was a strange reference to a mutilated Huntsman rifle in a statement admitted in evidence.
Remember, it was a broken Remington rifle belonging to the victims that was found with the bodies.
But Hallahan's alleged confession had Bailey saying it was his rifle he saw bloodied and broken with the bodies.
And police alleged Bailey had been in possession of a Huntsman rifle which had never been found.
John Llewellyn Warne, managing director of the company producing Huntsman rifles, said he had been asked to inspect photographs of cartridge cases at the police ballistics section and while there - and I quote - "I was also shown a partly mutilated .22 calibre Huntsman rifle…”
What possible reason could police have had for producing a “partly mutilated .22 calibre Huntsman rifle”?
Why or how had it been mutilated? What had it got to do with the case?
We'll never know - but is there a whiff of skullduggery?
How important was the alleged confession?
South Australia Crown Solicitor Roderic Chamberlain QC later told the Court of Criminal Appeals the case against Bailey would have failed without the alleged confession.
He had regarded it as so crucial to the case that at the trial he took personal charge of the prosecution when defence counsel Arthur Pickering QC applied to have the alleged confession ruled inadmissible. As soon as the decision to admit it was made, Chamberlain handed the case to Scarfe.
At the trial Pickering argued the evidence provided by Hallahan was not obtained voluntarily, was unfair and had been obtained only after a late caution.
Chamberlain said it would have been calamitous if police had been prevented from such questioning. “If they have to do what Mr Pickering is suggesting is proper, they would have had to release Bailey…The murder would have been left unsolved but a suspicion would have been left against members of the Bowman family.”
Was the alleged confession obtained freely and voluntarily?
After being stopped by Hallahan at 6.20pm on January 21 Bailey was interrogated for at least three hours that night.
My wife was in the next room and I could hear them questioning her from soon after they brought her to the Police Station until after midnight... I heard my wife crying.
I was taken away and locked up in a padded cell some time after midnight. I could hear my wife still being questioned in the next room when they took me away.
I was locked in the same padded cell at Mt Isa every night I was there. For the first three nights I was awakened about every half hour. If I didn’t turn over they came in and woke me. The only time I was allowed out of the cell was when someone wanted to question me.
During the morning I could hear my wife crying downstairs. I told them where I had been and what I had been doing but they just kept on questioning me and didn’t seem to believe me. By midday I was in such a state I didn’t know what I was saying. From then on I think I just answered the questions in the way I thought they wanted me to.
I was questioned from soon after breakfast until about half past one.
After Hopkins and Moran arrived, which was about half past three, they questioned me until about 8 o’clock that night.
Towards the end of their questioning they said to me “They are still questioning your wife and you won’t be allowed to see her until you sign a confession and they won’t stop questioning her until you do. They also said “Do you love your wife?” I said “I do” and they said “Well then, sign it and we will leave her alone”. By this time all I wanted was for them to stop questioning my wife and leave her alone. Moran typed out a statement and asked me to sign it and I signed it. They asked me to write the word “Yes” after some questions at the end of it.
The reason why I signed the confession was so that they would stop questioning my wife and leave us both alone. They had her at the Police Station all day. I could hear her crying. I asked to see her but was told that I could not.
I wanted to send a telegram to my father the night I was arrested and I asked could my wife send it to let him know what was going on. Hallahan said she was not allowed to leave the police station. I also asked to see a lawyer but Hallahan said I was not allowed to speak to anybody and even refused to let me speak to my wife.
Cross-examined, Hallahan said: "I swear she was not questioned that night."
But there is corroboration of that part of Bailey's story.
The Courier-Mail of January 22 reported "Police early this morning were still questioning a 22-year-old woman."
And in Adelaide on the 22nd The Advertiser reported: "At midnight police were still questioning a 22-year-old woman, believed to be the man’s wife."
Two newspapers confirmed Patricia, highly strung, pregnant, distraught, with a young son to nurture and a husband who had been spirited away by the police to be charged with murder, had herself been questioned by the police late into the night.
She suffered a miscarriage while there.
We have an allegation of oppression and evidence of the main prosecution witness lying.
Let's take a look at another aspect of the alleged confession. By January 21 newspapers were carrying stories that Adelaide police hunting for the Sundown murderer had issued an alert to all police stations to watch for a DeSoto car with a rego of SA 379-622 or SA 534-755 driven by a NSW carpenter and towing a light-coloured caravan and there was no doubt the occupants of the car could help the police with inquiries.
Hallahan spotted the car parked in a street and at 6.20pm on January 21 took Bailey to the police station.
But according to Hallahan, Bailey was not cautioned about the murders until about 12.15pm on January 22, after allegedly confessing to having shot Whelan, despite having been questioned by Hallahan on issues relevant to the murders for about three hours on the evening of the 21st and since 10.30 that morning.
Hallahan said when cross-examined that the questioning on the 21st was about a handgun.
Q When you took the accused to the police station at Mt Isa, you knew. Didn’t you, that he was wanted for questioning in respect of the Sundown Murders?
A No, I didn’t know that at all.
Prosecuting counsel argued that up to this first alleged admission Bailey might have been a witness in the case. The police had no idea of his relation to the case, he said.
So why was the first question Hallahan asked Bailey when he was taken to Mt Isa Police Station on January 21: “Do you own a caravan?”
Bailey complained in his statement: "They didn’t tell me that I needn’t answer their questions or that what I said might be used in evidence. I thought I had to answer."
When defending counsel Pickering argued that the lack of an adequately-timed caution meant that Judges' Rules had not been followed and the alleged confession should be ruled inadmissible, the judge, Sir Geoffrey Reed, responded: "We have no Judges' Rules in South Australia."
At that time Judges' Rules had been adopted in the UK and in every Australian jurisdiction apart from Queensland and South Australia.
In his summing up the judge told the jury: "It is largely a legal question but at the same time gentlemen, there is undoubtedly the fact that no caution was administered in relation to the Sundown murders at the beginning of Hallahan’s interrogation and that it was not administered until about quarter past 12 when a certain stage had been reached and the defendant had made some admission."
There's further evidence that Hallahan was prepared to lie to the court.
Defence counsel to Hallahan, the officer in charge of the CIB: "Do you know whether lengthy phone calls passed between the police in Adelaide and the police in Mt Isa on the night of 21 January?"
A: Not Mt Isa Police I don’t think.
Here's The Advertiser of January 22: "Lights in the Adelaide CIB building burned late last night as Mr McKinna and Det Insp Gully conferred on the new Mount Isa developments. They made lengthy telephone calls to Mount Isa and to Alice Springs."
There are further discrepancies in the prosecution case.
Four expert trackers gave evidence that an unidentified woman had been involved in moving the victims' car when it was abandoned - the bodies having been dumped in the scrub.
Prosecuting counsel Scarfe said there had ben one set of female tracks going out to the road from the car but none had led in. "This indicated the car was driven to that position by a woman," he said.
A witness was asked: "Did you form the opinion from what you saw that the Vanguard car had been driven to the spot where it was abandoned by a woman?"
But Bailey said in his statement: "Referring to the evidence about a woman’s tracks from the Vanguard, my wife is not able to drive a car."
In his summing up, Scarfe said scathingly: “There is only Bailey’s word as to his wife’s inability to drive a car.”
This amounts to an accusation by the prosecution that Patricia Bailey had been the driver and was, therefore, intimately involved in the murders.
And Scarfe's statement means the prosecution hadn't even bothered to check if Patricia had a driving licence.
This leads to the question: if it was not Patricia then who was it? And if it wasn't Patricia it follows that Bailey was not the killer.
Next: Prosecution counsel told the jury that counsel’s right was no more than to submit argument on what was proved in evidence.
But then in summing up, he invented a motive for the murders, creating a fictional scenario for which there had been no evidence, alleging:
“The whole situation points clearly at an attempt at robbery which went wrong. When Bailey held up the three travellers for money at gunpoint, Whelan tried to get the Remington rifle but Bailey shot him in the back. Bailey grabbed that rifle from Whelan clubbed the two women as they came to Whelan’s assistance, broke the rifle, put in perhaps three more cartridges and tried to shoot them but the rifle jammed.”
Not only was this not supported by evidence, it was yet another prosecution contradiction of the alleged confession.
The judge, in summing up, did not instruct the jury as to what credence, if any, it should attach to this invented motive, saying: "But if it is not that motive, well, gentlemen, I suppose it is hard to say what other motive there is."
There are pointers to police putting words into Bailey's mouth in a manner not dissimilar to the controversy relating to the wording of the alleged Max Stuart confession the following year in the same court.
In his statement Detective Hallahan said he asked Bailey about the caravan: “What colour is it?”
Hallahan’s statement alleges Bailey did not give a straightforward answer to this simple question, such as “blue”.
Police had announced to the media they had been searching for a “light coloured caravan”. “Light coloured” was the answer Hallahan recorded as being Bailey's response.
Hallahan said in his statement Bailey had described Thyra Bowman’s daughter, whom he had seen briefly from a distance as darkness fell at a camp fire on December 5, as “a young girl”.
Detectives Moran and Hopkins knew the girl had been aged 14. In the alleged confession typed by Moran, Bailey is reported as saying: “A girl aged about 14 was there and she stayed at the camp fire.”
There were several further problems with the prosecution case but it's time to introduce you to defence counsel Arthur Pickering QC - a man whose diary revealed he often drank to excess and gave more attention to a brief about the awarding of a commercial television licence than he did to trying to prevent Bailey from being hanged.
Pickering did not believe his client's protestations of innocence.
He chose to believe Hallahan rather than Bailey.
His 1958 diary reveals that as early as February 25 and 28 he referred to "the confession" as a fact.
The belief that his client had confessed to police presented him with a problem in formulating a defence strategy.
He would have been aware of the Bodkin Adams case in England in which a self-incriminating doctor had been tried for murder less than 12 months earlier. The case had made headlines across the globe and was still fresh in people’s minds.
Geoffrey Lawrence QC, in his first murder trial, took everyone by surprise by announcing at the end of the prosecution case that he was not going to call the doctor to defend himself.
I understand that in the 50s it was almost without precedent for an accused murderer not to be called to defend him or herself. Indeed, trial judge, Patrick Devlin, later Baron Devlin, said after the case: “To imagine such a voluntary action is an exercise to bring the word ‘boggle’ briefly into its own.”
But the audacious plan worked. Bodkin Adams was acquitted.
Pickering decided to follow suit and keep Bailey out of the witness box.
A diary entry for May 12, the first day of the trial, confirms Pickering's opinion: "... if Bailey gives evidence he will be sunk."
Unfortunately for Bailey, he put complete faith in Pickering's plan, writing to his parents: "I’m not going to defend myself in this court. Don’t worry for I have every confidence in Mr Pickering QC for he is a very brainy and clever man and knows what he is doing.”
But the diary shows Pickering as being unable to function properly on some days because he was hungover; of drinking large quantities of spirits; and of pre-lunch drinks in the office after which "no one can work properly in the pm"
It reveals that after Bailey's committal he accepted a brief to represent a consortium battling for Adelaide's first commercial television licence. It involved a public inquiry in which Pickering was involved for the entire week before Bailey's trial.
And on the day before the trial started - a Sunday - he had played golf: "Too much to drink before we started...Guests for tea...then to bed to read the Sundown brief."
Unlike Lawrence who had prepared a meticulous defence case, Pickering completely failed to mount an adequate defence.
In the middle of a voir dire, when the prosecution argued that one could have no uneasiness about what Bailey had told police, Pickering interjected: “…who might have been able to keep his mouth shut if he were cautioned.”
And this comment by Pickering: "Hallahan questioned a man in custody at considerable length without giving him any caution and gave no caution until the accused had made a damning admission."
And this in relation to there having been no caution: "The first confession was made about 12.10pm. He had been under interrogation from shortly after 10. In England that would inevitably have resulted in rejection of the confession."
Having decided that Bailey would incriminate himself if he gave evidence, Pickering performed the incrimination himself. In what should have been an impassioned defence of Bailey he told 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."
He might just as well have said: "Members of the jury, my client is guilty.
During the trial he failed to ask Hopkins and Moran about the inconsistencies relating to the Remington rifle.
He did not cross-examine the pathologist to demonstrate that none of the bullet wounds was consistent with the alleged confession.
He failed to address the fact that there was no explanation in the alleged confession of how Bailey was supposed to have come into possession of the victims’ Remington in the dark of night at the campsite, how he was supposed to have used it to bludgeon the victims, in which order and why, and why the unconscious bodies were moved to a new location where they were all shot at point blank range with another weapon.
He failed to analyse the killings. He could have - should have? - cross examined on the premise that the first thing the murderer did (according to the post mortems) was to obtain the Remington.
This would have resulted in there being no risk of the trio defending themselves with their rifle. Didn't this point to a murderer who knew where it was kept? If so, he would have been familiar with the trio.
The fact is that the murderer had clubbed the victims unconscious with massive swings of the butt of their own rifle while they slept.
Bailey wasn't even beefy enough to be the proverbial 10-stone weakling.
Pickering failed to question police witnesses about why a mutilated Huntsman had been presented to the managing director of the Huntsman company.
He told the court: “There is no ground to suggest there was any threat or promise” in obtaining the confession.” - which contradicted his client's statement.
Pickering should have exploited the contradictory evidence of a woman having driven the car containing the victims. For a start he should have asked police witnesses what size shoes Patricia took to see if that size matched prints found at the scene.
The failings are many and I submit they amount to incompetence and negligence which contributed to a gross miscarriage of justice.
Was the judge's summing up fair? Did he use language that might have caused the jury to think they were being directed to make a determination in a particular way?
In summing up the circumstances of the alleged confession the judge advised the jury:
“A possible view, of course, is that the defendant proceeded to make this confession because he had been subjected to very unfair treatment by the police of the nature which has been described.
“That is a possible view, I suppose.
“On the other hand, it is possible that the defendant was quite willing to make these statements and that what I may call the progressive admissions which he made were part of a willingness on his part perhaps to rid his conscience of guilt by confession, producing a statement by him about which you can have no doubt."
The jury retired at 5.38pm and knocked on the door less than 90 minutes later to say it had reached a decision. It was so unexpected it took another eight minutes to bring the judge and barristers back to the court.
As his honour Judge Eric Clegg wrote in an appraisal of famous murder cases: "They remained out only sufficiently long to have the evening meal."
Bailey was hanged on June 24 1958.
"Just one more thing", as television's Detective Columbo was wont to say: "Just one more thing":
Much evidence was gathered, and given, about the size of the murderer's footprints, with the judge telling the jury the murderer's shoes were size 8.
It was left to Bailey in his unsworn statement to reveal right at the end of the trial: “I take size 5½ shoe or if I can’t get that size I wear a size 6.”
Bailey could not have been the Sundown Murderer!
I submitted a 37-page petition requesting the South Australian Governor to exercise the prerogative of mercy, along with a 21-page addendum in which His Honour Warren Howell submitted: "It would be unsafe, unsatisfactory and dangerous in the administration of justice for a verdict of guilt to stand".
The Governor received "advice" - which I submit amounts to an instruction - from the Premier and Attorney-General, to reject the petition without providing any explanation - leaving a dreadful stain on the South Australian justice system.
My fight continues.
I welcome comments, suggestions and support.