SECOND ATTEMPT TO GAIN A POSTHUMOUS PARDON
Having found no way of advancing my 2013 petition I decided towards the end of 2021 to re-examine court transcripts of Bailey's committal, trial and appeal. I discovered additional reasons why a pardon should be granted and enlarged on my original arguments. The petition gained formidable support.
Petition dated February 2022.
CONTENTS
1. The petition
2. Reasons for granting a pardon
3. The prosecution case contradicted the alleged confession
4. The alleged confession was not supported by any direct corroboration
5. The mysterious and missing murder weapon
6. The accused’s shoe size did not match the murderer’s prints at the murder scene
7. The principal prosecution witness lied when giving evidence
8. The principal prosecution witness was not of good character
9. Defence counsel made it clear he did not believe the accused’s plea of not guilty
10. Claims of oppression supported by contemporaneous newspaper reports
11. Lack of appropriate caution
12. “We have no judges’ rules in South Australia”
13. The prosecution invented a motive for the murders
14. Alleged crucial witness not called
15. Judge told jury it could have no doubt about the confession
16. Jury not told false confessions feature in many murder cases
17. Police regarded suspect guilty even before being interviewed
18. Putting words into the accused’s mouth
19 Outright fabrication
20. Shoring up the case
21. Was this “the biggest frame up in Australian history”?
22. No case without the confession
23. Conclusion
24, Signatures
4
1) THE PETITION
1.1) This new petition presents fresh and compelling evidence and reasons why Raymond John Bailey, hanged on June 24 1958, having been found guilty on May 20 1958 at Adelaide Supreme Court of the murder of Mrs Thyra Bowman, should be granted a
posthumous pardon together with having the conviction quashed.
1.2) The petition is the result of a thorough examination and analysis of the transcripts of the committal proceedings, Supreme Court trial and the Court of Criminal Appeals appeal in the case of R v Bailey 1958.
1.3) Bailey was charged with the murder of Mrs Bowman of Glen Helen Station in the Northern Territory at Sundown Station on December 5 1957.
1.4) The petition is supported by
1.5) The petition includes evidence and reasons not adduced in a previous petition seeking a pardon for Raymond John Bailey lodged on February 15 2013. That petition was refused with no reasons being provided.
2) REASONS FOR GRANTING A PARDON
2.1 Reasons for granting a pardon include:
2.2) the verdict of the jury is unreasonable and cannot be supported having regard to the evidence;
2.3) the judgment should be set aside on the ground of a wrong decision on any question of law; and
2.4) on any other ground there was a miscarriage of justice.
2.5) The evidence is compelling, reliable and substantial in that most of it is contained in the transcript of the trial. Further evidence is contained in the transcripts and records of other courts, Queensland Hansard, contemporaneous newspaper reports from 1957 and 1958 and later newspaper reports, together with results from academic studies of false confessions and police interrogation techniques.
3) THE PROSECUTION CASE CONTRADICTED THE ALLEGED CONFESSION
3.1) An alleged confession signed by the accused, which the prosecution relied on at the trial as the only non-circumstantial evidence, is contradicted by the principal evidence of the act of murder presented by the prosecution.
Documentation: transcript of the trial.
Effect: the only direct evidence is discredited.
3.2) Prosecution counsel said in his opening address at the trial that the prosecution case depended on two branches of evidence, one of which was circumstantial. “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,” said prosecution counsel.
3.3) The father-in-law was not called to give evidence, leaving the alleged confession as the only direct evidence presented to the jury.
3.4) Additional safeguards regarding confessions have been built into the justice system since the trial. A jury may only use an alleged admission if it is satisfied that Its substance is truthful (Burns v R (1975) 132 CLR 258). Evidence that suggests that the content of an admission is untrue will cast doubt on the likelihood that the admission was made (McKinney v R (1991) 171 CLR 468). Before a jury can use an admission, it must also be satisfied that the statement constitutes a truthful representation of the accused’s involvement in the crime (Burns v R (1975) 132 CLR 258).
3.5) The accused, Raymond John Bailey, told the jury in an unsworn statement: “Gentlemen, I did not kill any of these people and I am not guilty of this charge.”
3.6) The accused did not write the alleged confession, apart from adding some minor postscripts. In essence, the alleged confession, which was typed for the accused to sign, states he shot Thyra Bowman at a camp site as she rushed towards him whereas the post mortem showed she was shot from close range in the back of the neck as she lay face down on the ground more than a kilometre away, with the bullet passing upwards through the brain.
3.7) Evidence at the trial revealed the bodies of Thyra Bowman, Wendy Bowman and Thomas Whelan had been found under a tarpaulin in bushland more than a kilometre from where they had been camping at Sundown Station and where the alleged confession says they were shot.
3.8) South Australian Government pathologist Dr John Dwyer said in evidence the post mortem had found:
3.8.1) Thyra Bowman had been shot once in the back of the neck with the bullet passing through the roof of the mouth and into the brain and that this had occurred when she was lying on the ground where her body was found;
3.8.2) Wendy Bowman had also been shot only once, with Dwyer saying: “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”;
3.8.3) Thomas Whelan had been shot twice in the back as well as being shot through the back of his head while lying where his body was found. Dr Dwyer had examined his body along with a broken, blood-splattered Sportsman 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.”
3.9) Dr Dwyer found all three had suffered fractured skulls before being shot.
3.10) There was evidence that the three had been attacked where they had been camping near a road and had then been moved to the spot where they were shot in the head and their bodies found.
3.11) Prosecution counsel told the jury: “Medical evidence was that the victims must have lived for some time after their skulls had been broken as the bullet wounds would have been immediately fatal.”
3.12) Dr Dwyer found the fractured skulls had resulted in extensive bleeding on the ground where the bodies were found, showing that they had been alive when laid there.
3.13) None of these facts tally with the alleged confession in which the accused said that he had shot Whelan at the camp site and: “I loaded my rifle again and aimed it at the older woman who was rushing towards me and fired. She fell down straight away. The young girl rushed at me too, so I loaded again, aimed it and shot her. She fell down too. Before I shot the older woman, when the young one and her were rushing at me, I used the butt of my rifle and hit her on the head, knocking her to the ground, and then I shot the older woman. After I shot the older woman, the younger girl was getting up off the ground so I shot her. When I shot these two women I was only about three yards from them.”
3.14) Defence counsel did not cross-examine the pathologist to demonstrate that none of the bullet wounds were consistent with the alleged confession.
3.15) Tellingly, there is no mention anywhere in the alleged confession of the Bowman’s Sportsman rifle which pathologist Dr Dwyer linked in evidence to the fractured skull of Thomas Whelan.
3.16) Defence counsel failed to address the fact that there was no explanation in the alleged confession of how the accused was supposed to have come into possession of the victims’ Sportsman rifle 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.
3.17) The fact that crucial events in the confession don’t fit with the evidence is typical of the findings of a detailed analysis by Professor Brandon Garrett of 38 cases in which innocent people had been exonerated after having been convicted, based on false confessions.
3.18) Garrett, Professor of law at Duke University of Law, found: “In at least twenty-eight of these thirty-eight cases—or seventy-four percent—the exoneree supplied facts during the interrogation that were inconsistent with the known facts in the case. In those cases, there were indicia of unreliability at the time of the investigation. Prosecutors then had to explain these inconsistencies to the jury by downplaying them and emphasizing instead the powerful nonpublic facts that each had supposedly volunteered.” (Garrett, The Substance of False Confessions, Stanford Law Review 2010)
3.19) Garrett found: “…police may have inadvertently suggested mistaken facts due to their incomplete knowledge about the crime scene evidence, which turned out to be inaccurate based on later information in the case. These mistakes provide insight into the limitations of officers’ abilities to construct a confession narrative, particularly with a suspect who may have no knowledge of the crime.” (Garrett, ibid))
3.20) Detective Hallahan said in cross-examination that when he interviewed the accused after arresting him he had no detailed knowledge about the Sundown Murders and: “I had none connecting Bailey with them… 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.”
3.21) In Hallahan’s version of the accused’s alleged confession, the omission of details about how the three people were bludgeoned and moved to a different site is explained by the accused being alleged to have said he had suffered a blackout from which he did not recover until he found the bodies. This version of the alleged confession was included in Hallahan’s sworn statement.
3.22) There is also a crucial mistake in this version of the alleged confession about the gun used in the murders - See heading “The mysterious and missing murder weapon 5-5.27).
4) THE ALLEGED CONFESSION WAS NOT SUPPORTED BY ANY DIRECT CORROBORATION
4.1) The jury was not warned of the dangers of convicting an accused where a disputed admission is the only, or substantially the only, evidence.
Documentation: Academic studies, legal precedents.
Effect: The jury may have been influenced by such a warning.
4.2) In the Sundown Murders case the prosecution offered no direct corroboration of the alleged confession.
4.3) In a study containing 121 citations, Professor of Law Boaz Sangero argues: “There is now unequivocal proof that many suspects and defendants have made, and even been convicted on the basis of, false confessions…confessions need to be backed by “strong corroboration”— objective, tangible and significant evidence extrinsic to the accused
person, linking him to the commission of the crime. (Boaz Sangero, Cardozo Law School, 2007)
4.4) A study of 125 cases of proven false confessions by Steven Drizin, Clinical Professor of Law at the Northwestern University Pritzker School of Law in Chicago, and Richard Leo, Professor of Law and Psychology at the University of San Francisco School of Law, found: “Once police obtain a confession, they typically close the investigation, clear the case as solved, and make no effort to pursue other possible leads—even if the confession is internally inconsistent, contradicted by external evidence or the result of coercive interrogation. Like police, prosecutors rarely consider the possibility that an entirely innocent suspect has been made to confess falsely through the use of psychologically coercive and/or improper interrogation methods.” ((The Problem of False Confessions in the Post-DNA World, North Carolina Law Review, 2004)
4.5) Professor Garrett, in his study of 38 cases of conviction after false confessions, found: “…police often ceased their investigation once they obtained a confession, and, in doing so, they not only failed to substantiate the confession but failed to investigate glaring
inconsistencies between the confession and crime scene evidence.” (Garrett, The
Substance of False Confessions, Stanford Law Review 2010)
4.6) It is now clear juries should be warned it is dangerous to convict where a disputed admission is the only, or substantially the only, evidence - for instance: s. 165 Evidence Act, Carr v The Queen (1988) 165 CLR 314, McKinney and Judge v The Queen (1991) 171 CLR 468, 51 A Crim R 240.
4.7) In Mckinney v The Queen (1991) 171 CLR 468 the High Court reversed the convictions of two men, and ruled that where an admission by a person in custody has been disputed and not reliably corroborated, the jury should be warned to give careful consideration to the dangers of convicting on the basis of that statement.
5) THE MYSTERIOUS AND MISSING MURDER WEAPON
5.1) Apart from the alleged confession, there was no evidence at the trial that the accused had been in possession of a rifle at the time the victims were shot. The rifle alleged to have been used to commit the murders was not produced in evidence.
5.2) There are evidential disparities involving two rifles alleged at the trial to have been involved in the murder.
Documentation: transcript of the trial and contemporaneous newspaper reports.
Effect: a rifle which had the potential to be the prime exhibit as direct corroboration of the confession was not produced in evidence. Inconsistencies in evidence regarding the murder weapon raise further questions about the validity of the alleged confession.
5.3) No evidence was produced at the trial, apart from the alleged confession, that the accused had been in possession of a rifle at the time of the murders.
5.4) The Advertiser newspaper from Adelaide had reported on December 16 1957 the circumstances in which a rifle had been discovered with the three murdered people: “The rifle’s wooden stock was broken off, probably with the force of the blows with which the murderer killed Wendy Bowman.”
5.5) In cross-examination at the trial Detective Hallahan testified that before he interrogated the accused: “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.”
5.6) Detective Hallahan’s statement, tendered at the trial, refers to an alleged initial comment made by the accused on January 22 1958, the day after he had been arrested by Hallahan regarding the murders. Hallahan alleged the accused had said: “I had an idea that I heard shots through the night and I decided to walk back down to see if those people were all right… I had a look in their car and I saw my rifle on the front seat. The wooden part of it was broken and it was covered in blood.
5.7) Hallahan’s statement alleges the accused used an almost identical description regarding a gun when he allegedly confessed to the murders: “My rifle was in the front seat of the car and I saw that the wood was broken and covered with blood and I realised that I must have killed the others too.”
5.8) Evidence was provided at the trial by Detective Hopkins that the broken rifle found at the murder scene with blood on the stock was a Remington Sportsman.
5.9) Bryan Bowman, brother-in-law of Thyra Bowman, said in evidence that the Remington Sportsman belonged to the family.
5.10) When dealing with the question of whether or not cartridge cases found with the bodies and elsewhere at the murder scene could have come from the Remington, ballistics expert Constable Patterson said in evidence: “… it became obvious from my examination that they did not.”
5.11) It was alleged by the prosecution that the accused had been in possession of a Huntsman rifle and that this had been used to shoot the three people.
5.12) The alleged confession had the accused throwing it out of his car window as he was driving north toward Alice Springs after the murders.
5.13) In his statement the accused said he had bought a Huntsman rifle in South Australia before leaving on a working trip around Australia in August 1957 and: “I sold the Huntsman rifle at the next windmill north of Coober Pedy to a dark skinned fellow for some opals.”
5.14) This would have been nearly 400 kilometres before arriving at the murder scene.
5.15) At the trial he was not asked if he still had the opals or, if he did not, what he had done with them. The prosecution did not explore this issue.
5.16) On January 23, 24, 25, 28, 29 and 30, while the accused was being held in Mount Isa, newspapers quoted police as saying it was their intention to take the accused back to the road south of Alice Springs to search for the Huntsman rifle. Police even told
newspapers that black trackers had been assembled ready for the search. They maintained this story that the accused would be taken to the murder scene on the way from Mt Isa to Adelaide to search for the gun, even up to the time the plane took off.
5.17) Typical of these reports are those on January 29 1958:
5.17.1) Adelaide’s The Advertiser: “When the plane reaches Alice Springs today it is expected that Bailey will accompany the police to an area near Palm Valley about 100 miles to the south-west. Another group of police and black trackers will join them in a search for a weapon, believed to be a .22 rifle.”
5.17.2) Adelaide’s The News: “Black trackers and police have been waiting at a spot near Palm Valley, about 100 miles west of Alice Springs, where the party from the plane will join them in a search for the .22 rifle allegedly used to shoot Mrs Bowman.”
5.18) At the trial defence counsel cross-examined Detective Moran:
Q: “Bailey was never taken anywhere to assist us in finding the Huntsman rifle?”
A: “No.”
5.19) There was no evidence that a search for a rifle had been made.
5.20) Defence counsel did not put it police witnesses that this could have been because the accused did not have a rifle to dispose of and, therefore, a search would have been a waste of time.
5.21) There is no mention anywhere in the alleged confession of the Bowman’s Sportsman rifle which pathologist Dr Dwyer linked to the fractured skull of Thomas Whelan.
5.22) A genuine confession would have had to include a description of how the accused came into possession of the Sportsman rifle, how he used it to bludgeon the victims, in which order and why, and why he moved the unconscious bodies to a new location where he shot them at point blank range with another weapon.
5.23) The alleged confession was signed by the accused in Mount Isa on January 23. It was not until January 31 in Adelaide that the discrepancy was dealt with by detectives Moran and Hopkins who said they conducted a further interview with the accused on that date.
5.24) In his statement Detective Moran said he had asked the accused on January 31: “This rifle (indicating a broken .22 calibre repeating rifle) was found beneath the bodies of the three murdered persons where they had been left beneath canvas. The rifle had a
broken stock as you can see and there was also this rifle cover and also this rifle cleaner with it. Do you know how they got there?”
5.25) Moran alleged the accused replied: “It doesn’t belong to me. It must belong to the dead people. I don’t remember putting it there although I must have. I know I was very excited and must have broken it.”
5.26) And in answer to another question on January 31 the accused was alleged to have said: “I can only remember shooting them once as I told you before, and the only one I remember hitting with my rifle was the young girl when she came at me.”
5.27) This answer was still in contradiction of Dr Dwyer’s post mortem finding on the death of Whelan. Dr Dwyer had examined his body along with the broken, blood-splattered Sportsman rifle and reported: “…the fractures on Whelan’s skull were consistent with having been caused by a blow from this rifle butt.”
5.28) As mentioned earlier, Professor Garrett found: “…police often ceased their investigation once they obtained a confession, and, in doing so, they not only failed to substantiate the confession but failed to investigate glaring inconsistencies between the confession and crime scene evidence.” (Garrett, The Substance of False Confessions, Stanford Law Review 2010)
6) THE ACCUSED”S SHOE SIZE DID NOT MATCH THE MURDERER’S PRINTS AT THE MURDER SCENE
Documentation: transcript of the trial.
Effect: the fact that the accused’s shoes were smaller than the shoe prints identified by prosecution witnesses as those of the murderer indicates he could not have been the murderer.
6.1) Witnesses who gave evidence about the murderer’s footprints found at the murder scene estimated the shoe size to have been between 10 down to seven at the smallest.
6.2) The size of the accused’s shoes was never mentioned or questioned at the trial until the close of the defence case when the accused mentioned in his statement that he took size five and a half or six if the smaller size was not available.
7) THE PRINCIPAL PROSECUTION WITNESS LIED WHEN GIVING EVIDENCE
7.1) Detective Glen Hallahan, the police officer who arrested the defendant on the evening of January 21 1958 and was responsible for the basis of the evidence against the accused, including the first version of the alleged confession, lied at the trial.
Documentation: Transcript of the trial and contemporaneous newspaper reports.
Effect: Had this been adduced, the rest of Detective Hallahan’s testimony would have been open to doubt.
7.2) At the trial defence counsel asked Detective Hallahan on separate occasions:
“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?”
Hallahan: “No, I didn’t know that at all.”
Q: “You told me earlier that you had no detailed information about the
Sundown murders at the time of questioning Bailey.”
A: “I had none connecting Bailey with them.”
Q: “At the time when you first saw the accused’s DeSoto in Mt Isa did you
have in your possession the registration number SA 379-622?”
A: “No."
7.3) Detective Hallahan swore that he had found the car belonging to the accused at 5pm on January 21 1958 and had kept watch on it until 6.20pm when the accused opened the car’s door. The accused had then been taken to Mount Isa Police Station where he was questioned.
7.4) Adelaide’s The Advertiser reported on Wednesday January 22: “Yesterday the hunt was narrowed down to a black 1938 DeSoto sedan with the registered numbers of either SA 379-622 or SA 534-755.”
7.5) The Courier-Mail reported on the same day: “Mt Isa police were alerted by Adelaide headquarters yesterday to watch for a black DeSoto sedan towing a light-coloured caravan.”
7.6) Next day The Advertiser reported: “Insp Gully said last night that SA police had tracked a black DeSoto sedan through the outback since January 9.”
7.7) In his memoir published in 2010 by the South Australian Police Association, Detective Hopkins, who had been a senior detective involved in the murder investigation and who interviewed the accused at Mount Isa and gave evidence at the trial, said that on January 21 1958 he and a colleague had been making enquiries about the murders in remote
central Australia. He said in his memoir: “On 21st January we returned to Kulgera Station and were advised by radio to return to Alice Springs immediately, because the offender had been arrested at Mt. Isa.” [emphasis added]
7.8) He also said: “We set out immediately on the 200 mile trip back to Alice Springs and on arrival there were told that the offender had been identified because his name and address were among those listed in the registers of the caravan parks in Alice Springs. The police at Mt Isa were contacted, and Bailey was found at the hospital…”
7.9) He said that at an earlier date a man named Hassell-Brown had identified the wanted car as a DeSoto and “…the Adelaide C I B discovered that the DeSoto vehicle, valued at 300 pounds, had been illegally obtained at Renmark by a person giving the name of
Raymond John Bailey of Dubbo.”
7.10) Evidence was given at the trial that the accused was a carpenter at the hospital. The officer in charge of Mount Isa CIB was Detective Hallahan.
7.11) A second lie involved the questioning of the accused’s wife.
7.12) Defence counsel questioned Detective Hallahan on whether the accused’s wife had been questioned on the night of the arrest, January 21.
Q: “Was his wife questioned that night?”
A. “She was not.”
Q: “Was she taken to the CIB building at any time?”
A: “Not that night.”
Q: “Do you swear she was not?”
A: “I swear she was not questioned that night.”
7.13) The accused said in his statement that on the night of January 21 at Mount Isa Police Station: “I was taken to the end room on the first floor. 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 could hear some words which were said but I could not make out the conversation. 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.”
7.14) The accused’s version of what happened is supported by almost identical stories which could only have come from a police source on the night of January 21st/22nd to The Advertiser in Adelaide and to The Courier-Mail in Brisbane, both more than 1,800 kilometres away.
7.15) The Advertiser reported on the morning of January 22: “At midnight police were still questioning a 22-year-old woman, believed to be the man’s wife.”
7.16) On the same day The Courier-Mail said: “Police early this morning were still questioning a 22-year-old woman.”
7.17) The accused’s wife, Patricia Merle Bailey, was aged 22.
7.18) There is further doubt about Detective Hallahan’s testimony.
7.19) Defence counsel asked Detective Hallahan about reports of phone calls on the evening of January 21 1958 between Adelaide, where Detective Inspector Gil Gully was superintending the search for the killer of the three victims, and Mount Isa Police Station where Detective Hallahan was in charge of the CIB.
Q: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.”
7.20) The Advertiser reported on 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.”
7.21) Mr McKinna was the South Australian police commissioner.
8) THE PRINCIPAL PROSECUTION WITNESS WAS NOT OF GOOD CHARACTER
Documentation: Queensland court records, Queensland Hansard.
Effect: Throws into doubt Hallahan’s testimony and the validity of the alleged confession.
8.1) Inconsistencies in Detective Hallahan’s evidence should have been further explored at the trial but the fact that in the next five years Hallahan was prepared to fabricate confessions, give false evidence and lie to courts on several occasions only emerged over time and could not have been adduced at the time.
8.2) However, in considering the veracity of the alleged confession by the accused it is pertinent to examine other alleged confessions obtained by Hallahan in other cases, and a case in which Hallahan was found to have withheld evidence crucial to the defence.
8.3) In the same month that the accused’s trial took place (May 1958) Detective Hallahan arrested a man named Kryloff in Brisbane. Kryloff later appealed the resulting sentence on the grounds that his plea of guilty had been the result of “enticement or inducement” by Hallahan. The three judges comprising the Full Court were so concerned by what had happened that they laid down a course of action all magistrates should follow if a defendant does not have a legal representative and pleads guilty (Hallahan v Kryloff; ex parte Kryloff [1960] QWN 18).
8.4) On April 4 1961 Detective Hallahan arrested and charged Tony Francis Cavanagh who pleaded guilty on the same day at Brisbane Magistrates Court to theft. Hallahan presented the court with a written confession. However, it was later discovered there had been no theft, resulting in Cavanagh receiving a pardon (pp126/127 and 340/341 Queensland Hansard 1961, Sunday Truth May 14 1961).
8.5) In this case it is also pertinent to note the way in which Detective Hallahan was alleged to have extracted Cavanagh’s confession. Cavanagh told the Sunday Sun newspaper he had been told by Hallahan: “You can either plead guilty, go before the court today and be home with your wife this afternoon or we’ll throw you in jail until you come clean and your wife will be worried sick at home”. I know I pleaded guilty but I challenge anyone else placed in similar circumstances to do anything different. I’d been taken away by the police and faced with a weekend in the watchhouse if I pleaded not guilty. Let’s put it bluntly, I was scared, scared for my wife and child, and with me they come first.” (Sunday Truth August 27 1961)
8.6) The alleged threats are almost identical with those the Sundown accused said in his statement had been made by Hallahan to him while he was being held at Mount Isa Police Station.
8.7) On May 4 1962 Hendrikus Plomp was found guilty at Brisbane Supreme Court of rape and sentenced on May 10 to six years’ imprisonment. It was then discovered by the defence that two statements which would have exonerated the accused had been omitted by Hallahan from the evidence made available to the defence. On July 27 1962 the Court of Appeal overturned the guilty finding and refused to order a new trial (Q v Plomp 1962).
8.8) On September 25 1962 Roy Clifford Hart was found not guilty at Brisbane Supreme Court of wilfully and unlawfully setting fire to a dwelling house despite Hallahan and another detective having sworn that Hart had confessed. Justice Sir Roslyn Philp told the jury: “What I want to stress to you is this: there is no evidence of the crime in this case and no evidence that the prisoner committed it except his alleged confession.” Sir Roslyn recommended that Hallahan be prosecuted for perjury.
8.9) On September 26 1963 the Full Court found that in the case of Gary William Campbell a prepared statement by Hallahan submitted to Brisbane Magistrates’ Court amounted to a fraud on the court and ordered Campbell’s conviction for vagrancy to be quashed. The appellant had appealed by way of order to review on the ground that the conviction and order were obtained by fraud and duress. He adduced evidence by affidavit that Hallahan threatened him with a false charge carrying a much higher maximum sentence than vagrancy and said that if the appellant pleaded guilty to vagrancy he (the respondent) would not make any serious statement against him before the magistrate. The three judges comprising the Full Court decided Hallahan had committed a fraud on the court.(Hallahan v Campbell; ex parte Campbell (No 2) [1964] Qd R 337)
9) DEFENCE COUNSEL MADE IT CLEAR HE DID NOT BELIEVE THE ACCUSED”S PLEA OF NOT GUILTY
Documentation: Transcript of the trial.
Effect: It is improper for counsel to express his/her own opinion as to the guilt or innocence of the accused whose right it is to have his guilt or innocence decided by a jury upon the sworn evidence alone.
9.1) Defence counsel made it clear to the court he did not believe his client and, instead, believed the alleged confession, which was revealed in evidence to have been part-written by Detective Hallahan, enlarged by South Australian Detectives Moran and Hopkins, and typed by Moran.
9.2) The accused told the jury in an unsworn statement: “Gentlemen, I did not kill any of these people and I am not guilty of this charge.”
9.3) Defence counsel said of the accused’s interrogation by Detective Hallahan in his summing up: “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.”
9.4) Defence counsel also said: “There is no ground to suggest there was any threat or promise” in obtaining the confession.”
9.5) This statement contradicts the accused’s statement in which he said: “After Hopkins and Moran arrived, which was about half past three, they questioned me until about 8 o’clock that night. Hallahan was present most of the time while they were questioning me. 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.”
9.6) The accused’s statement also said: “I was in such a state at that time that I would have done anything they told me to do. 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.”
9.7) Further, his statement said: “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. I was not allowed to have a bath and only had one shave and that was on the day I went to court to be extradited to South Australia.”
9.8) Although the jury would not have been aware of proceedings during a voir dire, the comments of defence counsel during a voir dire are a further demonstration he believed the prosecution case rather than his client.
9.9) In the voir dire, defence counsel said: “The first confession was made about 12.10.”
9.10) He also said: “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.”
9.11) When the prosecution argued that one could have no uneasiness about the alleged confession, defence counsel interjected: “…who might have been able to keep his mouth shut if he were cautioned.”
9.12) It is improper for counsel to express his/her own opinion as to the guilt or innocence of the accused, whose right it is to have his guilt or innocence decided by a jury upon the sworn evidence alone.
9.13) For instance, the South Australian Bar Association’s Barristers’ Conduct Rules state at para 37: “A barrister… must promote and protect fearlessly and by all proper and lawful means the lay client’s best interests to the best of the barrister’s skill and diligence …”
9.14) And at para 43: “A barrister must not make submissions or express views to a court on any material evidence or issue in the case in terms which convey or appear to convey the barrister’s personal opinion on the merits of that evidence or issue.”
9.15) It is clear that on such a basis defence counsel failed his client.
9.16) 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)
10) CLAIMS OF OPPRESSION SUPPORTED BY CONTEMPORANEOUS REPORTS
10.1) Allegations by the accused that he had been oppressed during interrogation by detectives are supported by contemporaneous newspaper reports.
Documentation: Transcript of the trial and contemporaneous newspaper reports together with academic studies.
Effect: There were grounds to suggest the alleged confession had been induced by threats, promises or untrue representations made by the police which, had defence counsel pursued them, could have ruled the alleged confession inadmissible.
10.2) The alleged confession was based on interviews with the accused carried out by Queensland Detective Glen Hallahan on January 21 and 22 1958 and continued by Detectives Moran and Hopkins from South Australia on the 22nd.
10.3) The accused alleged that on the night of January 21 at Mount Isa Police Station: “I was taken to the end room on the first floor. 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 could hear some words which were said but I could not make out the conversation. 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.”
10.4) The accused’s version of what happened is supported by almost identical stories which could only have come from a police source on the night of January 21st/22nd 1958 to The Advertiser in Adelaide and to The Courier-Mail in Brisbane, both more than 1,800 kilometres away.
10.5) The Advertiser reported on the morning of January 22: “At midnight police were still questioning a 22-year-old woman, believed to be the man’s wife.”
10.6) On the same day The Courier-Mail said: “Police early this morning were still questioning a 22-year-old woman.”
10.7) The accused’s wife, Patricia Merle Bailey, was aged 22.
10.8) As stated earlier, the accused’s statement also said: “After Hopkins and Moran arrived, which was about half past three, they
questioned me until about 8 o’clock that night. Hallahan was present most of the time while they were questioning me. 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.”
10.9) The accused’s statement also said: “I was in such a state at that time that I would have done anything they told me to do. 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.”
10.10) Further, his statement said: “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. I was not allowed to have a bath and only had one shave and that was on the day I went to court to be extradited to South Australia.”
10.11) He may have underestimated the disruptions to his sleep because Adelaide’s The News reported on Saturday January 25 that police had been keeping a special watch on the accused and inspecting his cell every 15 minutes.
10.12) Detective Moran said in evidence: “The statement was taken down at his dictation, most of it voluntarily – from his own story.” When defence counsel asked for the words to be read back to the court Moran said he wished to clarify that it was all made voluntarily.
10.13) Prosecution counsel told the jury: “Bailey had claimed that the police forced him to confess to the murders by cruelly ill-treating his wife. If this was true, the police were guilty of ‘the biggest frame-up in Australian history.”
10.14) Writing about a similar case which was heard the following year, the Hon Justice Michael Kirby AC CMG said that the confession in that case “would today have been obliged to run the gauntlet of the High Court's rulings in McKinney v The Queen. Forty years ago, the allegation of an improper extraction of a confession from accused prisoners by police and other officials was regarded by some judges and magistrates as an affront to the integrity of Crown officers.” (2002 (23) Adelaide Law Review)
10.15) This argument should now be assessed in the light of Section 84 of the Evidence Act 1995, which, with section 85, replaces the voluntariness rule, includes a provision which requires the party against whom admissions are sought to be led to raise an issue about whether the admission was influenced by violence, oppression, inhuman or degrading conduct or threats thereof before the provision excluding admissions so obtained is triggered: subsection 84(2).
10.16) John Bradshaw, director of the Washington office of the Nobel Prize-winning Physicians for Human Rights, an American not-for-profit organisation, has said of the use of sleep deprivation and isolation: “…particularly when used in combination, these
techniques amount to psychological torture.” (Inter Press Service, January 29, 2009)
10.17) There was evidence the accused was deprived of sleep and suffered isolation during his interrogation.
10.18) The winter 2002 edition of Amnesty International carried an article headed “False Confessions - Scaring Suspects to Death”.by Professor Edwin Dobb, former acting editor-in-chief of “The Sciences”.
10.19) It summarises: “When police interrogators manipulate suspects into confessing to crimes they didn't commit, innocent people end up on death row.”
10.20) Dobb wrote: “Certain people — the uneducated, the poor, the emotionally insecure, the mentally impaired, the young — are especially susceptible to manipulation in the interrogation room. In cases involving the death penalty, such vulnerability is especially dangerous.”
10.21) In regard to being uneducated, the Sundown Murders accused had left school at 14 to become a carpenter.
10.22) Social psychologist Richard Ofshe of the University of California, Berkeley, and Richard Leo, a University of California criminologist, have analysed the Reid Technique as outlined in the textbook “Criminal Interrogation and Confessions” by Fred Inbau and John Reid. They report the initial step in such an interrogation is always the same: misrepresenting the nature of questioning.
10.23) In the accused’s case he was held for questioning regarding Hallahan’s claim of finding a pistol in the DeSoto car and of false pretences.
10.24) Ofshe and Leo found that investigators commonly fabricate evidence, a technique designed to destroy a suspect’s confidence. “They can lie about statements from a witness or accomplice…” says the article.
10.25) In the accused’s case Detective Hallahan who was conducting the interrogation, recorded in his sworn statement that he twice left the room to consult with the accused’s wife and returned to tell the accused that she had provided incriminating evidence that he had a rifle at the time of the murders.
10.26) The High Court held in Mckinney v The Queen (1991) 171 CLR 469 para 15: “Once it is accepted that a record of interview may be fabricated, it must also be accepted that the atmosphere, including the isolation and powerlessness of a suspect held in police custody, which allows for its fabrication may also be conducive to the suspect signing a false document.”
11) LACK OF APPROPRIATE CAUTION
11.1) Detective Hallahan interviewed the accused about topics relevant to the murders before cautioning him about the murders.
Documentation: Transcript of the trial and contemporaneous newspaper reports.
Effect: A review of the case should take into account the Evidence Act 1995 which makes it clear admissions obtained without prior caution are deemed to have been obtained improperly.
11.2) The accused was arrested on January 21 1958, the day after The News had reported that Detective Inspector Gully, the officer leading the hunt for the murderer, had announced “there was no doubt the occupants of the car” he was driving “could help the police” with inquiries. Yet, according to the statement of arresting officer Detective Hallahan, the accused was not cautioned about the murders until about 12.15pm on January 22, despite having been questioned by Hallahan on issues relevant to the
murders for about three hours on the evening of the 21st and since 10.30am that morning.
11.3) The News of January 21 had headlined a story “Police now hunting black 1938 DeSoto,” The story said: “Find a black 1938
DeSoto sedan, numbered SA 379-622 or SA 534-755, associated with a man, woman and a fair-haired boy.” This message was flashed to police throughout the Commonwealth today when the Sundown triple murder hunt took another dramatic turn. The mystery car, towing a small cream or beige caravan, was seen near the scene of the murders about 8pm on Thursday, December 5, the day the murders are believed to have been committed. The car and caravan were seen again on December 7 or 8 north of Tennant Creek, heading for Mount Isa or Darwin. On November 25 the car was seen bearing the number SA 379-622.”
11.4) The Advertiser of that day reported: “The acting chief of the CIB, Det Insp GL Gully said yesterday it had now been
ascertained that a man, woman and child known to be travelling in the car could assist police in their enquiries.”
11.5) These reports followed other reports about the police search for a car and caravan, with The News having reported on January 20: “The acting chief of the CIB, Det Insp Gil Gully said yesterday it had now been ascertained that a man, woman and child known to be travelling in the car could assist police in their enquiries.”
11.6) When he was questioned in a voir dire during the trial Detective Hallahan was asked: “On Tuesday 21 Jan - on that day the police at Mt Isa had received a phone message from the Tennant Creek police, which originated in Adelaide. Did you
understand it to be an Australia-wide alert for a dark-coloured sedan car thought t be a Dodge, drawing a light-coloured caravan?” The prosecution objected. Detective Hallahan claimed privilege.
11.7) Evidence given at the trial makes it plain that on the evening the accused was found, Detective Hallahan knew that the accused was wanted in connection with the murders.
11.8) But prosecution counsel insisted in a voir dire: “Up to his first confession Bailey might have been merely a witness in the case because the police had no idea of his relation to the case.”
11.9) Detective Hallahan’s account of the arrest on January 21 1958 was included in a report by The News of the accused’s first appearance in Mt Isa Magistrates’ Court on Friday January 24 when he said that at 5pm last Tuesday with Detective Pfingst he saw a dark coloured 1938 DeSoto car in Miles Street, Mt Isa. “I kept this vehicle under observation and at 6.20pm I saw the present defendant get into it.”
11.10) Detective Hallahan’s statement says that the first question he asked the accused after he had been taken to Mt Isa Police Station after the arrest on January 21 was: “Do you own a caravan?”
11.11) Hallahan was not questioned by defence counsel to discover why he had asked such a question.
11.12) It had nothing to do with the charge of being in possession of a concealable firearm that was laid against the accused on that night.
11.13) Hallahan’s statement says he charged the accused at 9.30pm on January 21 with being found in possession of an unlicensed concealable firearm. He says he left the accused when he was locked up at 9.40pm.
11.14) In cross-examination defence counsel said to Detective Hallahan:
“I am suggesting that from the very outset of your interrogation with Bailey, you were intending to question him to see whether he was connected with the Sundown murders.”
11.15) Prosecution counsel objected but was overruled.
11.16) Hallahan: “Yes. With a view to seeing whether he was the culprit or alternatively to see if he had any information connected with it.”
11.17) When Detective Hallahan resumed questioning the accused the next day (January 22) there can be no doubt he knew the accused was wanted in connection with the Sundown Murders. The Brisbane-based Courier-Mail, printed overnight, carried
information which it it would have had to have received on the 21st, saying: “Two South Australian detectives investigating the Sundown triple murders will fly by specially chartered plane to Mt Isa this morning to question a man, woman and child. They believe the three may be able to help them in their investigations.”
11.18) At 9.50am on the 22nd Hallahan charged the accused that he had been guilty of false pretences in obtaining the DeSoto car At 10.00 the accused appeared at Mt Isa’s court on the false pretences charge. The News of January 22 reported: “Ten police officers filled the tiny courtroom at Mount Isa today.”
11.19) Defence counsel failed to ask Detective Hallahan why 10 officers would have been present if the accused was suspected only of false pretences.
11.20) Detective Hallahan’s statement says he resumed his questioning of the accused from 10.30am to 1.30pm.
11.21) His sworn statement includes this passage: The defendant then lowered his head and supported his head with his hands and said: “I do know something about those people who were killed, can you give me a smoke?” I then handed him a cigarette. The time was approximately 11.50am and I said: “What do you know about it?”
11.22) According to Detective Hallahan, this admission by the accused and Hallahan’s resulting question did not involve a caution being administered.
11.23) The sworn statement continues with questions and answers about the Sundown Murders until this passage:
I said: “I am going to ask you some more questions about this but before I do I am going to tell you that you are not obliged to answer any questions or make any statement as anything you do say will be noted and may be used in evidence. Do you understand that?”
He said “Yes but I will tell you what happened.” When I cautioned the defendant, Inspector Bauer was there and he remained there thereafter. The time was then approximately 12.15pm.
11.24) Detective Hallahan’s statement says that the accused was questioned for about another 25 minutes about the Sundown Murders without a caution regarding the murders being administered.
11.25) All these alleged questions and answers were included in Detective Hallahan’s testimony at the trial.
11.26) In his summing up the judge said: “…there is undoubtedly the fact that no caution was administered in relation to the Sundown murder 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.”
11.27) A police officer must, as soon as reasonably practicable following the arrest of a person (regardless of whether apprehension occurred with or without a warrant), warn the arrested person that anything they say may be taken down and used in evidence [Summary Offences Act 1953 (SA) s 79A(3)(b)].
12) “WE HAVE NO JUDGES’ RULES IN SOUTH AUSTRALIA”
12.1) The trial judge rejected a submission by defence counsel at the trial that under judges’ rules the alleged confession should be rejected.
Documentation: Transcript of the trial.
Effect: without the alleged confession there was no direct evidence that the accused had committed the murder.
12.2) The Australian Law Reform Commission asserts: two distinct rules apply to the admissibility in evidence of any confession or
admission made to the police:
i. to be admissible the statement must be voluntary and not the result of ‘duress, intimidation, persistent importunity, or sustained or undue insistence or pressure’;
ii. even if a statement is found to be voluntary it may still be excluded in the exercise of the judge’s discretion if it is considered that it would be unfair to the accused to receive it in evidence.
A relevant factor in determining unfairness is whether the Judges Rules have been adhered to by the police when questioning the accused person, although non-compliance with the Judges Rules does not result in automatic exclusion of the evidence obtained. These principles have been restated by Chief Justice Gibbs:
The principles governing the admissibility of confessional evidence are not in doubt … A confession will not be admitted unless it was made voluntarily, that is in the exercise of a free choice to speak or be silent. But even if the statement was voluntary, and therefore admissible, the trial judge has a discretion to reject it if he considers that it was obtained in circumstances that would render it unfair to use it against the accused.
The rationale for the rules was well expressed by the Royal Commission on Criminal Procedure (UK) in 1981: The presumption behind the Judges Rules is that the circumstances of police questioning are of their very nature coercive, that this can affect the freedom of choice and judgement of the suspect (and his ability to exercise his right of silence), and that in consequence the reliability (the truth) of statements made in custody has to be most rigorously tested. (Australian Law Reform Commission, August 18 2010)
12.3) At the trial defence counsel submitted: “Bailey is arrested and taken into custody. He is questioned about other matters, charged with possession of an unlicensed pistol and locked up for the night. He is brought before the court next morning and remanded and after all that he is questioned on this matter. 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. That involves inadmissibility of that admission and all that followed on the ground that it was not voluntary. There is no ground to suggest that there was any threat or promise. That does not decide the question that the Crown has not shown this statement to be voluntary.
“The English Judges’ Rules are a definition of the standard of propriety of what a police officer should do. If you read the evidence, he was taken into custody at 6.20pm, kept in custody at Mt Isa overnight, charged next morning over a pistol and questioned still in custody. 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. The High Court here has established the English position, that while the Judges’ Rules have not the force of law, any flagrant breach results in rejection of a confession.”
“They had gone straight on with the interrogation at 4.30pm and there was nothing to remove the effect of what Hallahan had done. Hallahan’s recitation to Moran and Hopkins and their interrogation of Bailey based on what they had been told by
Hallahan should be excluded…It was contrary to fair play that he should have been questioned without caution.”
12.4) In summing up he said: “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.
“The questioning went on and on. A written document was produced and Bailey was invited to sign. There are more ways of breaking a man’s will than by pummelling his body. They can put him in a padded cell, wake him every half hour. It is not suggested that Bailey was battered. He was told his wife would be questioned until he confessed. They produce the oral confessions, they produce the written confession. It is for you to say. Four versions did not satisfy the police, and on they went. You should suspect a confession supposed to be the offspring of remorse and penitence but repudiated by the prisoner in the court. All those of us defending him can say now is to take the Crown’s proof and say ‘There’s a hole, there’s a hole, it doesn’t add up’. I submit that the case rests on the alleged confessions but there are so many loose ends. You cannot be satisfied that the Crown has covered the omissions by saying he
confessed. It is unsafe to say anything but that it has not been proved that Bailey committed this crime.”
12.5) The judge said: “We have no Judges’ Rules in South Australia.”
12.6) The evidence of the accused being interviewed about matters connected with the
murders is also relevant.
12.7) Detective Hallahan’s statement says that the first question he asked the accused after being taken to Mt Isa Police Station after the arrest on January 21 was: “Do you own a caravan?”
12.8) Police had been searching for a caravan in connection with the Sundown Murders.
12.9) The question has nothing to do with the charge of being in possession of a concealable firearm that was laid against the accused on that night.
12.10) Detective Hallahan’s statement says that on January 22 the accused was questioned about the Sundown Murders for about 25 minutes immediately before a caution regarding the murders was administered.
13) THE PROSECUTION INVENTED A MOTIVE FOR THE MURDERS
13.1) In summing up, the prosecution counsel invented a motive for the murders, creating a scenario for which there had been no evidence. The judge, in summing up, did not instruct the jury as to what credence, if any, it should attach to that motive.
Documentation: Transcript of the trial.
Effect: The jury may have taken the invented scenario into consideration when deciding its verdict. It also throws further doubt on the conduct of the trial.
13.2) Prosecution counsel told the jury that counsel’s right was no more than to submit argument on what was proved in evidence.
13.3) But then he went on to allege: “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.”
13.4) Defence counsel said in his summing up: “In summing up, the prosecuting counsel invented a scenario for which there had been no evidence. Mr Scarfe’s theory of an armed hold-up is pure speculation. In this case, with a man’s life at stake, you cannot speculate.”
13.5) The alleged confession obtained by Detective Hallahan, contained no motive for the accused to leave his caravan in the dark of night to walk into the bush, allegedly with a rifle, to visit the Bowman camping party, and no motive to kill people apart from having shot one accidentally and two more to stop them from reporting him to police. The later alleged confession obtained by Detectives Moran and Hopkins contained a detailed (but incorrect) story of how the killings occurred but again without a motive. It was only as an afterthought in the last four paragraphs or so that the following sentence was added: “When I went back to where I left the bodies on Friday 6/12/57 I took a wallet out of the hip pocket of the dead man while he was under the canvas.”
13.6) But this act was portrayed in the alleged confession as an afterthought on the day after the murders and not a motive for the killings.
13.7) The invented motive by the prosecution in the summing up alleged: “The whole situation points clearly at an attempt at robbery which went wrong.”
13.8) There is no such clarity.
13.9) Prosecution counsel alleged: “…Bailey held up the three travellers for money at gunpoint…”
13.10) This is pure invention but stated as a fact.
13.11) “…Whelan tried to get the Remington rifle but Bailey shot him in the back.”
13.12) There had been no evidence that Whelan had tried to get the Remington rifle, a Sportsman model. In fact, there had been no mention of a Remington rifle in the alleged confession.
13.13) “Bailey grabbed that rifle from Whelan…”
13.14) There had been no evidence of the accused grabbing a rifle from Whelan.
13.15) “…put in perhaps three more cartridges and tried to shoot them but the rifle jammed.”
13.16) This is pure invention which bears no resemblance to any of the evidence.
13.17) The judge’s summing up did little if anything to dismiss this invention from the jury’s minds.
13.18) The judge said: ”The Crown’s theory is that it originated in an attempt at the offence of robbery
under arms and that as a result of perhaps as a warning by the dogs the three people at the camp were awakened or alarmed and it then proceeded as these things sometimes do from one stage to another rapidly and with increasing feelings because once a course of violence is embarked upon it is very difficult to say where it will stop and resort to weapons may become easier as feeling increases. But if it is not that motive, well, gentlemen, I suppose it is hard to say what other motive there is.”
13.19) Instead of pointing out there had been no evidence on which such a scenario could be based the judge muddied the water even further by enlarging on the theory.
13.20) He ended this section of the summing up by saying “if it is not that motive, well, gentlemen, I suppose it is hard to say what other motive there is.”
13.21) The jury may well have taken this to suggest that the only conceivable motive was the theory advanced by the prosecution.
14) ALLEGED CRUCIAL WITNESS NOT CALLED
14.1) The accused’s father-in-law was said by prosecution counsel in his opening address to be as important to the prosecution case as the accused’s alleged confession. He was never called to give evidence.
Documentation: Transcript of the trial.
Effect: Casts further doubt on the prosecution case.
14.2) Detective Hallahan, who created the first alleged confession by the accused, alleged he had been present when the accused had told his father-in-law, a Mr Hudson, that he was guilty of the Sundown Murders.
14.3) Reference to this accusation was included in the opening address of prosecution counsel who said the prosecution case depended on two branches of evidence, one of which was circumstantial.
14.4) “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,” said prosecution counsel.
14.5) At the committal, in a voir dire, Detective Hallahan was handed his typed statement.
14.6) He said: “The typed statement I have in front of me is the one handed to you to read this morning. That does not contain the whole of what I said to the accused relating to the Sundown Murders. That does not contain a conversation that the accused had with his father in law on 25th.”
14.7) Detective Hallahan had interviewed the accused at Mount Isa Police Station on January 21 and 22 1958. This had led to the alleged confession being typed. He alleged that he was present on January 25 1958 for what he alleged was a conversation between the accused and his father-in-law.
14.8) Detective Hallahan alleged: “At 7.10pm on Saturday, 25th of January, 1957, I had a conversation with a man named Mr Hudson at the Mount Isa CIB Office. At 7.30pm on the same date I saw the accused at the Mount Isa Watchhouse.
“I said to him: ‘Your father in law Mr Hudson has arrived from Dubbo (P111) and he wants to have a talk with you.’
“He replied ’It’s going to be hard to face him now.’
“I said: ‘I will bring him down here and I will have to be with you when you speak to him. Remember about the warning.’
“He replied ‘Yes’.
“I then brought Mr Hudson into the Mount Isa Watchhouse and he shook hands with the accused and said ‘How are you Ray?’
“The accused replied ‘OK thanks.’
“Mr Hudson then said: ‘Did you kill those people back there?’
“The accused replied: ‘Yes I killed them alright.’
“At that stage Mr Hudson collapsed and after some 10 minutes he was revived and he said to the accused ‘Why did you do it Ray? Why did you kill those three people?’
“The accused replied: ‘I don’t know why I did it. I don’t know why I killed them. It must be my nerves’.”
14.9) In cross-examination Detective Hallahan said: “I made no notes concerning the conversation of Saturday 25th January… I made a typewritten record of that interview… That would be Friday 21 February.”
14.10) This was an admission that he had made no notes of what he alleged was a crucial conversation but that almost four weeks later was able to type a verbatim account of the alleged conversation.
14.11) February 21 was the last working day before the start of the committal.
14.12) The accused said in his statement: “My father-in-law, Mr Hudson, came to see me on the following Saturday at Mt Isa. The evidence given by Detective Hallahan about Mr Hudson’s conversation with me is not true. I did not tell Mr Hudson that I had killed these people or anything like that. I instructed my solicitor to arrange for Mr Hudson to come here from Dubbo to give evidence but I am told he has the mumps and is not well enough to come.”
14.13) Despite the reference in the opening address by the prosecution counsel referring to the importance of the evidence of Mr Hudson, he was not called to give evidence and no explanation of his absence was made, other than the accused’s statement..
14.14) Of note, also, is that there is no mention in this alleged conversation of motive.
14.15) In order to ensure that all relevant evidence is fairly represented at a trial it is the duty of the prosecutor to call all material and credible witnesses.
14.16) The failure of defence counsel to call Mr Hudson or to refute in some way the accusation made by the prosecution is a further example of having failed to use the “best of the barrister’s skill and diligence.”
15) JUDGE TOLD JURY IT COULD HAVE NO DOUBT ABOUT THE CONFESSION
15.1) The judge, in his summing up of the veracity of the alleged confession, concluded this section of his address with a sentence which included the phrases “the progressive admissions” “produced “a statement by him” “about which you can have no doubt.”
Documentation: Transcript of the trial.
Effect: Suggests to the jury that the alleged confession should be believed.
15.2) 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.”
15.3) The allegation of “very unfair treatment” was only a “possible view” to which the judge added “I suppose”.
15.4) However, “the progressive admissions” “produced “a statement by him” “about which you can have no doubt.”
15.5) The case has certain similarities with the trial the following year of Rupert Max Stuart, over which the same judge, Geoffrey Reed, presided.
15.6) The report of the “Royal Commission in regard to Rupert Max Stuart”, held to investigate the way in which courts had dealt with the case and presented to the South Australian Legislative Council on December 3 1959, said that: “In directing the jury the trial judge treated the confession as the crux of the case, and stressed the burden on the prosecution of proving that it was freely and
voluntarily made…It is necessary to bear in mind that it was on this evidence and on this direction that the jury returned their verdict of Guilty.”
15.7) The commission referred to evidence given by police officer Jones at the trial that, with minor exceptions, the words attributed to the accused in the confession were “exactly his words”.
15.8) The commission reported: “We have no doubt that the petitioner had more help with the wording of the written confession than Jones was prepared to admit.”
16) JURY NOT TOLD FALSE CONFESSIONS FEATURE IN MANY MURDER CASES
Documentation: references to academic studies regarding false confessions.
Effect: The jury may well have been influenced by such evidence.
16.1) Empirical studies in the USA have shown that it is not uncommon for innocent people to falsely confess to murder.
16.2) Professor Drizin and Professor Leo (2004) found that in 125 cases of proven false confessions in the USA between 1971 and 2002, 81% of the confessions occurred in murder cases. (The Problem of False Confessions in the Post-DNA World, North Carolina Law Review, 2004)
16.3) Stanford Law Review published a study in 2010 revealing post-conviction DNA testing had exonerated more than 250 convicts, more than 40 of whom falsely confessed to rapes and murders. (Garrett, The Substance of False Confessions, 2010)
16.4) The Innocence Project discovered that of 375 convicted people who had later been exonerated by DNA evidence, 130 had been convicted for murders and of those 81 (62%) had made false confessions. And of 24 exonerations in New York State, 13 had been based on false confessions. (The Innocence Project, Cardoza School of Law)
16.5) Because defence counsel in the Sundown Murders case did not call any witnesses he was unable to call experts to explain how studies had shown how and why innocent people had signed confessions of guilt.
16.6) In 1958 studies of false confessions such as “Convicting the Innocent: Sixty-five Actual Errors of Criminal Justice” (1932), “The Court of Last Resort”, Erle Stanley Gardner, 1952, and “Not Guilty”, Jerome and Barbara Frank, 1957, were available to the defence.
16.7) Professors Drizin and Leo comment: “In all three works, the specific causes of wrongful conviction—including the problem of false confession—are discussed in relation to the cases that are presented…”
16.8) Such testimony could have been a crucial aspect of the defence case, because the only non-circumstantial evidence the prosecution presented was the alleged confession signed by the accused.
17) POLICE REGARDED SUSPECT GUILTY EVEN BEFORE BEING INTERVIEWED
17.1) Even before the accused was questioned about the Sundown Murders soon after 10.30am on January 22 police had made up their minds he was guilty.
17.2) Police were so sure he was the murderer that after he had been taken into custody at 6.20pm on January 21 1958 detective Hopkins recalled he had received a message in central Australia where he was making enquires about the murders that “the offender had been arrested in Mount Isa”.
17.3) And someone in the police service contacted the media on the evening of January 21, enabling The Courier-Mail to carry the news that: “Two South Australian detectives investigating the Sundown triple murders will fly by specially chartered plane to Mt Isa this morning to question a man, woman and child. They believe the three may be able to help them in their investigations.”
Documentation: Trial transcript and academic research.
Effect: Provides evidence that the accused was not interviewed to elicit facts but was interrogated to in order to provide a confession.
17.4) In a paper titled “False Confessions: Causes, Consequences, and Implications” Professor Leo reviewed empirical research on the causes and correlates of false confessions and found: “Once detectives misclassify an innocent person as a guilty suspect, they often subject him to an accusatorial interrogation. Getting a confession becomes particularly important when there is no other evidence against the suspect, especially in high-profile cases in which there is great pressure on police detectives to solve the crime, there is no other source of potential evidence to be discovered, and typically there is no credible evidence against an innocent but misclassified suspect. It is perhaps not surprising that most documented false confessions occur in homicides and high-profile cases.” (The Journal of the Academy of Psychiatry and the Law - False Confessions: Causes, Consequences, and Implications 2009)
17.5) Detective Hallahan testified he had “a summary of what had happened, including the fact that a rifle had been used.”
17.6) He admitted under cross-examination at the committal: “When I was questioning the accused I had received some details concerning the Sundown murders.” But when he was asked: “From what source did you have that information?” prosecution counsel
objected and this was upheld by the magistrate.
17.7) Before Hopkins and Moran, who had detailed knowledge of the crime, arrived in Mount Isa during the afternoon of January 22, Detective Hallahan compiled a statement alleging the accused had confessed to the Sundown Murders - a confession which bore little resemblance to what had actually happened.
17.8) It is logical to suggest that Hallahan’s lack of knowledge of major details of the murders resulted in there being no explanation of the motive in his statement.
17.9) Hallahan alleged the accused said he had taken a gun when he walked back in the dark to the campsite of the Bowman party.
17.10) Hallahan’s statement says the accused told him: “I don’t know why I walked back.”
17.11) Hallahan: “Why did you take your rifle with you?” The accused: “I don’t know.”
17.12) Hallahan alleged the accused said he had shot “the young fellow”.
17.13) Hallahan had no details of the murders of the three people apart from the fact that a rifle had been used. His statement says that the accused said that after shooting the young fellow “I must have blacked out. I came to beside the car on the other side of the road and I saw that they were all dead.”
17.14) Hallahan included much detail about the alleged movements of the accused on the night of the 5th and morning of the 6th but he was presumably unaware that the victims’ two dogs, which had been tied to a tree, had been shot and killed. He makes no mention of this in his statement or record of interview with the accused.
18) PUTTING WORDS INTO THE ACCUSED”S MOUTH
18.1) In addition to the prosecution case contradicting the alleged confession, there are further pointers to police putting words into the accused’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 (R v Stuart 1959; Royal Commission in regard to Rupert Max Stuart 1959
Documentation: transcript R v Bailey 1958, transcript of R v Stuart 1959 and Royal Commission in regard to Rupert Max Stuart 1959).
Effect: The Stuart case took place after the Sundown Murders case but is relevant in considering the evidence against the accused in R v Bailey 1958.
18.2) The commission reported: “We have no doubt that the petitioner had more help with the wording of the written confession than Jones was prepared to admit.” Jones was one of the officers who conducted the interrogation of Stuart.
18.3) There are pointers to the accused in the Sundown Murders case having been “helped” with the wording of his alleged confession.
18.4) In his statement Detective Hallahan said he asked the accused about the accused’s caravan: “What colour is it?”
18.5) Hallahan’s statement alleges the accused 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 the accused’s response.
18.6) When Detective Hallahan interviewed the accused on January 21, Hallahan said in his statement the accused 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 the accused is reported as saying: “A girl aged about 14 was there and she stayed at the camp fire.”
19) OUTRIGHT FABRICATION
19.1) This petition has demonstrated why the accused should not have been found guilty of the charge of murdering Thyra Bowman.
19.2) Using sworn testimony and contemporaneous newspaper articles it is possible to analyse some aspects of how three detectives concocted a confession.
Documentation: Trial transcript.
Effect: Reinforces the fact that the confession should not have been believed.
19.3) There is an obvious and incontrovertible fabrication in Detective Hallahan’s sworn statement of what the accused allegedly told him while being interviewed.
19.4) In December newspapers had published information about a broken rifle having been found with the bodies. Typical was The Advertiser of December 16: “The rifle’s wooden stock was broken off, probably with the force of the blows with which the murderer killed Wendy Bowman.”
19.5) Hallahan obviously did not realise the broken gun, a Remington, had belonged to the travelling party. No direct evidence, apart from the alleged confession, was produced at the trial that the accused had possessed a rifle at the time of the murders.
19.6) The prosecution alleged the accused had been in possession of a Huntsman rifle.
19.7) So this alleged quote from the accused in Hallahan’s version of the first alleged confession is obviously a total fabrication: “I had a look in their car and I saw my rifle on the front seat. The wooden part of it was broken and it was covered in blood.”
19.8) In Hallahan’s second version of the confession the accused is supposed to have said: “My rifle was in the front seat of the car and I saw that the wood was broken and covered with blood and I realised that I must have killed the others too.”
19.9) The question arises: how much of the rest of the confession was fabricated?
19.10) Hallahan’s statement alleges the accused had told him that when he and his wife camped near the murder spot: “After we left them that night I went further down the road and stopped the car. We camped there that night. We had tea and after tea I got a guts ache and I went outside and had a couple of shits.”
19.11) In a record of an interview with the accused Detective Hopkins, who had inspected the murder scene, told the accused: “There was a spaghetti tin found near where you had your car and caravan parked also.”
19.12) In the final version of the alleged confession, compiled by Hopkins and Moran, the words attributed to the accused are: “We had tea there. I think it was spaghetti and a cup of tea.”
19.13) In the alleged confession there is a puzzling reference to the accused saying that on the morning after the murders: “One of the dogs bit me on the left wrist. I then shot them. I didn’t use a shovel on them though.”
19.14) There is no other reference in the trial to a shovel and no suggestion of anyone having accused the accused of having used a shovel to attack the dogs.
19.15) But in the mass of newspaper articles shortly after the murders, The Advertiser of December 17 1957 reported: “A theory has been advanced that the murder may have taken place after a large savage black and white kangaroo dog owned by Mrs Bowman and her daughter Wendy bit a stranger when he approached the spot where they were camping. The theory is that the stranger hit the dog with a shovel which the victims had used to dig a hole for grilling meat, Territory style, over fire coals.”
19.16) The alleged quote about shooting the dogs on the morning after the murders provides a second conundrum.
19.17) The problem is that Hallahan’s version of the alleged confession says the rifle had been broken the previous evening.
19.18) An attempt to remedy this mistake was made in the Hopkins/Moran version of the confession when the accused is alleged to have said that when he threw away the gun: “The stock was cracked but it is not in two pieces.” (see also 20.3)
19.19) John Llewellyn Warne, the managing director of Sporting Arms Ltd, provided a statement saying he had been asked to attend the police ballistics section in Adelaide where he inspected photographs of cartridge cases with an imprint of a firing pin the same as that made by a Huntsman single-shot rifle.
19.20) Police were anxious to link the accused to the murder weapon, whatever that may have been.
19.21) A rifle with a broken stock had been found with the bodies.
19.22) Detective Hallahan had mistakenly assumed that the broken rifle had belonged to the accused and that it had been a Huntsman.
19.23) But evidence was produced at the trial that the broken rifle had been a Sportsman belonging to the Bowmans.
19.24) On the basis that the accused’s alleged confession referred to a broken Huntsman which he had thrown away just south of Alice Springs police had repeatedly told media that the accused would be taken to that area to take part in a search for such a rifle.
19.25) The accused was not taken to the area.
19.26) There was no evidence at the trial that any search had been made.
19.27) No rifle said to have been the murder weapon was produced at the trial.
19.28) Mr Warne testified that when he was shown the photographs at the police ballistics section: “I was also shown a partly mutilated .22 calibre Huntsman rifle…”
19.29) A question arises: “What possible reason could police have had for producing a “partly mutilated .22 calibre Huntsman rifle”?
19.30) The Garrett study of 38 people who had signed confessions but then been exonerated found: “…police may have inadvertently suggested mistaken facts due to their incomplete knowledge about the crime scene evidence, which turned out to be inaccurate based on later information in the case. These mistakes provide insight into the limitations of officers’ abilities to construct a confession narrative, particularly with a suspect who may have no knowledge of the crime.” (Garrett, ibid)
20) SHORING UP THE CASE
20.1) Events after the confession was obtained and before the committal proceedings suggest there was an urgent realisation that the prosecution case needed shoring up.
Documentation: trial transcript.
Effect: Further evidence of the shortcomings of the police evidence.
20.2) On January 31 1958 mistakes in the confession (in addition to those identified earlier in this petition) led to Detective Moran interviewing the accused again. The alleged blackout is used in the alleged answers from the accused to explain discrepancies.
20.3) Moran and Hopkins would have realised in the typing of the final alleged confession that Hallahan had been completely mistaken in assigning the broken rifle (the Remington) to the accused’s ownership.
20.4) in removing this sequence from the final alleged confession all references to the Remington, linked in the pathologist’s report to the fracturing of Whelan’s skull, had been removed. This was a crucial omission.
20.5) On January 31 he was asked specifically about the Remington. He is recorded as saying: “It doesn’t belong to me.…And I don’t remember seeing any gun except the one I had.”
20.6) It was put to the accused: “Whelan was shot three times, Mrs Bowman was shot twice and Wendy Bowman was shot once, and all victims had been battered about the head.”
20.6) To which the accused was supposed to have responded: “I can only remember shooting them once as I told you before, and the only one I remember hitting with my rifle was the young girl when she came at me. But as I told you after I had shot them once I just went mad, and if they have been shot more than once and battered I suppose I must have done it, but I don’t remember doing it.”
20.7) More evidence was sought. In February 1958 possible witnesses were taken to an Adelaide police yard and shown the DeSoto car and caravan.
20.8) At the committal prosecution counsel was adamant in his opening address: “Next morning at about 10am Mr Wilkinson the storekeeper at Kulgera, saw a dark-coloured car and caravan which pulled up for petrol.”
20.9) But by the trial he was reduced to saying: “On December 6, a Kulgera storekeeper, Wilkinson, had a vague recollection of a car resembling Bailey’s passing through.”
20.10) Even worse for the prosecution, at the trial Mr Wilkinson looked directly at the accused in the dock and said: “I have never seen this man before this court case.”
20.11) 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.
20.12) And in a last-minute creation of new evidence on the last working day before the committal Detective Hallahan typed for the first time a statement saying he had been present when the accused had allegedly confessed to his father-in-law.
21) WAS THIS “THE BIGGEST FRAME-UP IN AUSTRALIAN HISTORY”?
21.1) Prosecution counsel told the jury in his summing up at the trial: “If you think the police have made up the biggest frame-up in Australian history you should find him not guilty.”
Documentation: trial transcript.
Effect: This petition has demonstrated the alleged confession Detective Hallahan was involved in fabricating does not stand up to scrutiny and, therefore, the jury should have done what prosecution counsel demanded.
This petition puts that same question forward.
22) SOLICITOR-GENERAL: NO CASE WITHOUT THE CONFESSION
22.1) South Australia Crown Solicitor Roderic Chamberlain QC told the Court of Criminal Appeals the case against the accused would have failed without the alleged confession.
22.2) He regarded Hallahan’s statement as so crucial to the case that at the trial he took personal charge of the prosecution when defence counsel applied to have the confession ruled inadmissible. As soon as the decision to admit the confession was made, Chamberlain handed the case to E B Scarfe QC..
22.3) At the appeal hearing defence counsel, A L Pickering QC, argued the evidence provided by Hallahan was not obtained voluntarily, was unfair and had been obtained after a late caution.
22.4) Chamberlain QC once again decided to head the prosecution case and responded that 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.”
Documentation: Court of Appeals transcript
Effect: This petition has shown sufficient evidence to show the alleged confession should have been rejected for the reasons stated and agrees that if the police had followed the suggested “proper” behaviour the accused should have been released.
23) CONCLUSION
23.1) The petitioners submit that the evidence supplied in this document is reliable and compelling in that there was a substantial miscarriage of justice in this case and that, therefore, it is in the interests of justice for a posthumous pardon to be granted and the conviction quashed.
Researched and presented by Stephen Anthony Bishop, PO Box 521, The Gap, Queensland, 4061.
Signed by:
Stephen Anthony Bishop
Lola Jean Bateup, a sister of Raymond John Bailey, of Kalana Road, Aroona, Queensland 4551.
The Hon Mike Ahern AO, former National Party Premier of Queensland,
Shelly Beach, Caloundra, Queensland, 4551.
The Hon Rod Welford, former Attorney General and Minister for Justice, Queensland
Fortitude Valley, Brisbane, Queensland 4006 11 November 2021
Robert N Moles ACII (UK) LLB (Hons) (Belf) PhD (Edin)
Dr Moles is one of Australia’s leading academics on the issue of wrongful convictions. He (along with his joint authors) has published: Forensic Investigations and Miscarriages of Justice, Irwin Law, Toronto, 2010;
Miscarriages of Justice: Criminal Appeals and the Rule of Law, LexisNexis, Sydney, 2015;
He, along with other colleagues, helped to establish a new right of appeal in criminal cases in South Australia, Tasmania and Victoria, with similar developments taking place in Western Australia and the ACT;
He has developed a leading web site on miscarriages of justice – Networked Knowledge;
He has been involved in over 150 television and radio programs on these issues, and
published a substantial number of academic and media articles.
John Shobbrook, Redcliffe, Queensland
As a former senior investigator with the Federal Bureau of Narcotics I have read and analysed the petition and am of the firm opinion that the key role played by Queensland detective Glen Patrick Hallahan in the prosecution of Bailey has led to a grave miscarriage of justice having been committed against Bailey and that the petition on his behalf should receive a favourable recommendation.
My credentials include graduation from the Australian Capital Territory Police Detective Training Course, the Victoria Police Detective Training School, the Customs Investigator Techniques Course, the Intelligence Surveillance and Undercover Course run by the Australian Secret Intelligence Service (ASIS), the United States Department of Justice, Southeast Asian Drug Traffic Seminar, the United States Department of Justice, Criminal Information Research School and the United States Department of Justice, Drug Enforcement Conspiracy Training Seminar.
I have had extensive experience in the examination of criminal law, evidence, brief preparation, practice and procedure. Former Queensland Premier Mike Ahern assessed my career in these terms:
“John, it is important that you realise that in your professional career you did your job well. You did not flinch when you ran into the “heinous mob”. That was a tough call, but you did your job courageously and well. Your effort, joined with others, led to a better policing outcome for Australians. Well done!”
In addition to my experience in preparing evidence for trials I have personal experience of Glen Patrick Hallahan (the principal witness in the case against Raymond John Bailey). I have witnessed Hallahan repeatedly lying as he gave evidence under oath at the Australian Royal Commission of Inquiry into Drugs. I am also aware that Glen Hallahan has been involved in criminal wrongdoing since the early 1960’s, he has been charged with several serious offences and twice suspended from the Queensland Police Force.
Between January 1979 and March 1980, I held the rank of deputy Regional Commander for the Federal Bureau of Narcotics for Queensland and the Northern Territory. At that time I led a two-year investigation into Hallahan’s involvement in the importation into Australia of heroin worth millions of dollars.
During my investigation of Hallahan, bank receipts were found confirming he had received into his bank account in excess of $110,000.00 from convicted heroin trafficker John Edward Milligan.
Milligan’s tape-recorded answers to my questions about the importation and other matters led to the Royal Commission extending its hearings during which time Hallahan gave false evidence under oath.
I am therefore of the firm opinion that uncorroborated statements by Hallahan cannot be relied upon and consequently the petition should succeed.
Bruce Milne OAM, Ballarat, Victoria
I am a first cousin once removed of Thyra Bowman, one of the victims of the Sundown Murders.
My father grew up with Thyra as a neighbour for some years in Adelaide. He knew her family well. Amongst my close acquaintances my parents were the most affected by the horror of the Sundown Murders, having personally known and loved the victims and their families.
I have forensically studied the evidence presented in the prosecution of Raymond John Bailey for the murder of my first cousin and believe Bailey was wrongly convicted. I have written a book to share the drama and injustice amongst family and friends.
It’s time to right a wrong.
The flimsy extent of circumstantial evidence amounts to Raymond Bailey travelling past the crime scene on the day of the murders along with the drivers of other vehicles who were never traced.
The evidence was riddled with holes - no fingerprints, no murder weapon, unreliable witness statements, shoddy police procedures at the crime scene and an incompetent defence counsel.
The court process was flawed and the evidence weak - much of it clearly manipulated and planted by corrupt law officers and the legal fraternity.
The jury had a right to have faith in the police being honest and the defence team being competent, but this was not the case.
I strongly support the petition for a posthumous pardon.
Explanatory note:
I, Stephen Anthony Bishop, an investigative journalist, spent a week in Adelaide studying the transcripts of the committal, trial and appeal of Raymond John Bailey.
The reason for conducting this research was that I had spent many years researching and exposing endemic corruption in Queensland for the 30 years between 1957 and 1987.
Foremost among the corrupt police running the corruption and organised criminal activities was Glen Patrick Hallahan, the detective who was the principal prosecution witness in the Bailey trial.
I wrote and published a book in 2012 titled "The Most Dangerous Detective" focusing on Hallahan's criminality.
The miscarriage of justice in the Bailey case was so outrageous that I lodged a petition for a posthumous appeal. It was refused in 2013 with no explanation as to why.
This new petition contains many more reasons why a pardon should be granted than were contained in the first petition.
Petition dated February 2022.
CONTENTS
1. The petition
2. Reasons for granting a pardon
3. The prosecution case contradicted the alleged confession
4. The alleged confession was not supported by any direct corroboration
5. The mysterious and missing murder weapon
6. The accused’s shoe size did not match the murderer’s prints at the murder scene
7. The principal prosecution witness lied when giving evidence
8. The principal prosecution witness was not of good character
9. Defence counsel made it clear he did not believe the accused’s plea of not guilty
10. Claims of oppression supported by contemporaneous newspaper reports
11. Lack of appropriate caution
12. “We have no judges’ rules in South Australia”
13. The prosecution invented a motive for the murders
14. Alleged crucial witness not called
15. Judge told jury it could have no doubt about the confession
16. Jury not told false confessions feature in many murder cases
17. Police regarded suspect guilty even before being interviewed
18. Putting words into the accused’s mouth
19 Outright fabrication
20. Shoring up the case
21. Was this “the biggest frame up in Australian history”?
22. No case without the confession
23. Conclusion
24, Signatures
4
1) THE PETITION
1.1) This new petition presents fresh and compelling evidence and reasons why Raymond John Bailey, hanged on June 24 1958, having been found guilty on May 20 1958 at Adelaide Supreme Court of the murder of Mrs Thyra Bowman, should be granted a
posthumous pardon together with having the conviction quashed.
1.2) The petition is the result of a thorough examination and analysis of the transcripts of the committal proceedings, Supreme Court trial and the Court of Criminal Appeals appeal in the case of R v Bailey 1958.
1.3) Bailey was charged with the murder of Mrs Bowman of Glen Helen Station in the Northern Territory at Sundown Station on December 5 1957.
1.4) The petition is supported by
- Former Queensland National Party Premier Mike Ahern AO;
- Former Queensland Labor Party Attorney-General and Justice Minister Rod Welford;
- Dr Robert N Moles, a leading academic on the issue of wrongful convictions;
- Former Federal Bureau of Narcotics senior investigator John Shobbrook;
- Lola Bateup, aged 87, a sister of Ray Bailey who has always believed in his innocence.
- Bruce Milne OAM, whose parents had “known and loved the victims and their families” but who “strongly” supports the petition.
1.5) The petition includes evidence and reasons not adduced in a previous petition seeking a pardon for Raymond John Bailey lodged on February 15 2013. That petition was refused with no reasons being provided.
2) REASONS FOR GRANTING A PARDON
2.1 Reasons for granting a pardon include:
2.2) the verdict of the jury is unreasonable and cannot be supported having regard to the evidence;
2.3) the judgment should be set aside on the ground of a wrong decision on any question of law; and
2.4) on any other ground there was a miscarriage of justice.
2.5) The evidence is compelling, reliable and substantial in that most of it is contained in the transcript of the trial. Further evidence is contained in the transcripts and records of other courts, Queensland Hansard, contemporaneous newspaper reports from 1957 and 1958 and later newspaper reports, together with results from academic studies of false confessions and police interrogation techniques.
3) THE PROSECUTION CASE CONTRADICTED THE ALLEGED CONFESSION
3.1) An alleged confession signed by the accused, which the prosecution relied on at the trial as the only non-circumstantial evidence, is contradicted by the principal evidence of the act of murder presented by the prosecution.
Documentation: transcript of the trial.
Effect: the only direct evidence is discredited.
3.2) Prosecution counsel said in his opening address at the trial that the prosecution case depended on two branches of evidence, one of which was circumstantial. “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,” said prosecution counsel.
3.3) The father-in-law was not called to give evidence, leaving the alleged confession as the only direct evidence presented to the jury.
3.4) Additional safeguards regarding confessions have been built into the justice system since the trial. A jury may only use an alleged admission if it is satisfied that Its substance is truthful (Burns v R (1975) 132 CLR 258). Evidence that suggests that the content of an admission is untrue will cast doubt on the likelihood that the admission was made (McKinney v R (1991) 171 CLR 468). Before a jury can use an admission, it must also be satisfied that the statement constitutes a truthful representation of the accused’s involvement in the crime (Burns v R (1975) 132 CLR 258).
3.5) The accused, Raymond John Bailey, told the jury in an unsworn statement: “Gentlemen, I did not kill any of these people and I am not guilty of this charge.”
3.6) The accused did not write the alleged confession, apart from adding some minor postscripts. In essence, the alleged confession, which was typed for the accused to sign, states he shot Thyra Bowman at a camp site as she rushed towards him whereas the post mortem showed she was shot from close range in the back of the neck as she lay face down on the ground more than a kilometre away, with the bullet passing upwards through the brain.
3.7) Evidence at the trial revealed the bodies of Thyra Bowman, Wendy Bowman and Thomas Whelan had been found under a tarpaulin in bushland more than a kilometre from where they had been camping at Sundown Station and where the alleged confession says they were shot.
3.8) South Australian Government pathologist Dr John Dwyer said in evidence the post mortem had found:
3.8.1) Thyra Bowman had been shot once in the back of the neck with the bullet passing through the roof of the mouth and into the brain and that this had occurred when she was lying on the ground where her body was found;
3.8.2) Wendy Bowman had also been shot only once, with Dwyer saying: “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”;
3.8.3) Thomas Whelan had been shot twice in the back as well as being shot through the back of his head while lying where his body was found. Dr Dwyer had examined his body along with a broken, blood-splattered Sportsman 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.”
3.9) Dr Dwyer found all three had suffered fractured skulls before being shot.
3.10) There was evidence that the three had been attacked where they had been camping near a road and had then been moved to the spot where they were shot in the head and their bodies found.
3.11) Prosecution counsel told the jury: “Medical evidence was that the victims must have lived for some time after their skulls had been broken as the bullet wounds would have been immediately fatal.”
3.12) Dr Dwyer found the fractured skulls had resulted in extensive bleeding on the ground where the bodies were found, showing that they had been alive when laid there.
3.13) None of these facts tally with the alleged confession in which the accused said that he had shot Whelan at the camp site and: “I loaded my rifle again and aimed it at the older woman who was rushing towards me and fired. She fell down straight away. The young girl rushed at me too, so I loaded again, aimed it and shot her. She fell down too. Before I shot the older woman, when the young one and her were rushing at me, I used the butt of my rifle and hit her on the head, knocking her to the ground, and then I shot the older woman. After I shot the older woman, the younger girl was getting up off the ground so I shot her. When I shot these two women I was only about three yards from them.”
3.14) Defence counsel did not cross-examine the pathologist to demonstrate that none of the bullet wounds were consistent with the alleged confession.
3.15) Tellingly, there is no mention anywhere in the alleged confession of the Bowman’s Sportsman rifle which pathologist Dr Dwyer linked in evidence to the fractured skull of Thomas Whelan.
3.16) Defence counsel failed to address the fact that there was no explanation in the alleged confession of how the accused was supposed to have come into possession of the victims’ Sportsman rifle 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.
3.17) The fact that crucial events in the confession don’t fit with the evidence is typical of the findings of a detailed analysis by Professor Brandon Garrett of 38 cases in which innocent people had been exonerated after having been convicted, based on false confessions.
3.18) Garrett, Professor of law at Duke University of Law, found: “In at least twenty-eight of these thirty-eight cases—or seventy-four percent—the exoneree supplied facts during the interrogation that were inconsistent with the known facts in the case. In those cases, there were indicia of unreliability at the time of the investigation. Prosecutors then had to explain these inconsistencies to the jury by downplaying them and emphasizing instead the powerful nonpublic facts that each had supposedly volunteered.” (Garrett, The Substance of False Confessions, Stanford Law Review 2010)
3.19) Garrett found: “…police may have inadvertently suggested mistaken facts due to their incomplete knowledge about the crime scene evidence, which turned out to be inaccurate based on later information in the case. These mistakes provide insight into the limitations of officers’ abilities to construct a confession narrative, particularly with a suspect who may have no knowledge of the crime.” (Garrett, ibid))
3.20) Detective Hallahan said in cross-examination that when he interviewed the accused after arresting him he had no detailed knowledge about the Sundown Murders and: “I had none connecting Bailey with them… 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.”
3.21) In Hallahan’s version of the accused’s alleged confession, the omission of details about how the three people were bludgeoned and moved to a different site is explained by the accused being alleged to have said he had suffered a blackout from which he did not recover until he found the bodies. This version of the alleged confession was included in Hallahan’s sworn statement.
3.22) There is also a crucial mistake in this version of the alleged confession about the gun used in the murders - See heading “The mysterious and missing murder weapon 5-5.27).
4) THE ALLEGED CONFESSION WAS NOT SUPPORTED BY ANY DIRECT CORROBORATION
4.1) The jury was not warned of the dangers of convicting an accused where a disputed admission is the only, or substantially the only, evidence.
Documentation: Academic studies, legal precedents.
Effect: The jury may have been influenced by such a warning.
4.2) In the Sundown Murders case the prosecution offered no direct corroboration of the alleged confession.
4.3) In a study containing 121 citations, Professor of Law Boaz Sangero argues: “There is now unequivocal proof that many suspects and defendants have made, and even been convicted on the basis of, false confessions…confessions need to be backed by “strong corroboration”— objective, tangible and significant evidence extrinsic to the accused
person, linking him to the commission of the crime. (Boaz Sangero, Cardozo Law School, 2007)
4.4) A study of 125 cases of proven false confessions by Steven Drizin, Clinical Professor of Law at the Northwestern University Pritzker School of Law in Chicago, and Richard Leo, Professor of Law and Psychology at the University of San Francisco School of Law, found: “Once police obtain a confession, they typically close the investigation, clear the case as solved, and make no effort to pursue other possible leads—even if the confession is internally inconsistent, contradicted by external evidence or the result of coercive interrogation. Like police, prosecutors rarely consider the possibility that an entirely innocent suspect has been made to confess falsely through the use of psychologically coercive and/or improper interrogation methods.” ((The Problem of False Confessions in the Post-DNA World, North Carolina Law Review, 2004)
4.5) Professor Garrett, in his study of 38 cases of conviction after false confessions, found: “…police often ceased their investigation once they obtained a confession, and, in doing so, they not only failed to substantiate the confession but failed to investigate glaring
inconsistencies between the confession and crime scene evidence.” (Garrett, The
Substance of False Confessions, Stanford Law Review 2010)
4.6) It is now clear juries should be warned it is dangerous to convict where a disputed admission is the only, or substantially the only, evidence - for instance: s. 165 Evidence Act, Carr v The Queen (1988) 165 CLR 314, McKinney and Judge v The Queen (1991) 171 CLR 468, 51 A Crim R 240.
4.7) In Mckinney v The Queen (1991) 171 CLR 468 the High Court reversed the convictions of two men, and ruled that where an admission by a person in custody has been disputed and not reliably corroborated, the jury should be warned to give careful consideration to the dangers of convicting on the basis of that statement.
5) THE MYSTERIOUS AND MISSING MURDER WEAPON
5.1) Apart from the alleged confession, there was no evidence at the trial that the accused had been in possession of a rifle at the time the victims were shot. The rifle alleged to have been used to commit the murders was not produced in evidence.
5.2) There are evidential disparities involving two rifles alleged at the trial to have been involved in the murder.
Documentation: transcript of the trial and contemporaneous newspaper reports.
Effect: a rifle which had the potential to be the prime exhibit as direct corroboration of the confession was not produced in evidence. Inconsistencies in evidence regarding the murder weapon raise further questions about the validity of the alleged confession.
5.3) No evidence was produced at the trial, apart from the alleged confession, that the accused had been in possession of a rifle at the time of the murders.
5.4) The Advertiser newspaper from Adelaide had reported on December 16 1957 the circumstances in which a rifle had been discovered with the three murdered people: “The rifle’s wooden stock was broken off, probably with the force of the blows with which the murderer killed Wendy Bowman.”
5.5) In cross-examination at the trial Detective Hallahan testified that before he interrogated the accused: “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.”
5.6) Detective Hallahan’s statement, tendered at the trial, refers to an alleged initial comment made by the accused on January 22 1958, the day after he had been arrested by Hallahan regarding the murders. Hallahan alleged the accused had said: “I had an idea that I heard shots through the night and I decided to walk back down to see if those people were all right… I had a look in their car and I saw my rifle on the front seat. The wooden part of it was broken and it was covered in blood.
5.7) Hallahan’s statement alleges the accused used an almost identical description regarding a gun when he allegedly confessed to the murders: “My rifle was in the front seat of the car and I saw that the wood was broken and covered with blood and I realised that I must have killed the others too.”
5.8) Evidence was provided at the trial by Detective Hopkins that the broken rifle found at the murder scene with blood on the stock was a Remington Sportsman.
5.9) Bryan Bowman, brother-in-law of Thyra Bowman, said in evidence that the Remington Sportsman belonged to the family.
5.10) When dealing with the question of whether or not cartridge cases found with the bodies and elsewhere at the murder scene could have come from the Remington, ballistics expert Constable Patterson said in evidence: “… it became obvious from my examination that they did not.”
5.11) It was alleged by the prosecution that the accused had been in possession of a Huntsman rifle and that this had been used to shoot the three people.
5.12) The alleged confession had the accused throwing it out of his car window as he was driving north toward Alice Springs after the murders.
5.13) In his statement the accused said he had bought a Huntsman rifle in South Australia before leaving on a working trip around Australia in August 1957 and: “I sold the Huntsman rifle at the next windmill north of Coober Pedy to a dark skinned fellow for some opals.”
5.14) This would have been nearly 400 kilometres before arriving at the murder scene.
5.15) At the trial he was not asked if he still had the opals or, if he did not, what he had done with them. The prosecution did not explore this issue.
5.16) On January 23, 24, 25, 28, 29 and 30, while the accused was being held in Mount Isa, newspapers quoted police as saying it was their intention to take the accused back to the road south of Alice Springs to search for the Huntsman rifle. Police even told
newspapers that black trackers had been assembled ready for the search. They maintained this story that the accused would be taken to the murder scene on the way from Mt Isa to Adelaide to search for the gun, even up to the time the plane took off.
5.17) Typical of these reports are those on January 29 1958:
5.17.1) Adelaide’s The Advertiser: “When the plane reaches Alice Springs today it is expected that Bailey will accompany the police to an area near Palm Valley about 100 miles to the south-west. Another group of police and black trackers will join them in a search for a weapon, believed to be a .22 rifle.”
5.17.2) Adelaide’s The News: “Black trackers and police have been waiting at a spot near Palm Valley, about 100 miles west of Alice Springs, where the party from the plane will join them in a search for the .22 rifle allegedly used to shoot Mrs Bowman.”
5.18) At the trial defence counsel cross-examined Detective Moran:
Q: “Bailey was never taken anywhere to assist us in finding the Huntsman rifle?”
A: “No.”
5.19) There was no evidence that a search for a rifle had been made.
5.20) Defence counsel did not put it police witnesses that this could have been because the accused did not have a rifle to dispose of and, therefore, a search would have been a waste of time.
5.21) There is no mention anywhere in the alleged confession of the Bowman’s Sportsman rifle which pathologist Dr Dwyer linked to the fractured skull of Thomas Whelan.
5.22) A genuine confession would have had to include a description of how the accused came into possession of the Sportsman rifle, how he used it to bludgeon the victims, in which order and why, and why he moved the unconscious bodies to a new location where he shot them at point blank range with another weapon.
5.23) The alleged confession was signed by the accused in Mount Isa on January 23. It was not until January 31 in Adelaide that the discrepancy was dealt with by detectives Moran and Hopkins who said they conducted a further interview with the accused on that date.
5.24) In his statement Detective Moran said he had asked the accused on January 31: “This rifle (indicating a broken .22 calibre repeating rifle) was found beneath the bodies of the three murdered persons where they had been left beneath canvas. The rifle had a
broken stock as you can see and there was also this rifle cover and also this rifle cleaner with it. Do you know how they got there?”
5.25) Moran alleged the accused replied: “It doesn’t belong to me. It must belong to the dead people. I don’t remember putting it there although I must have. I know I was very excited and must have broken it.”
5.26) And in answer to another question on January 31 the accused was alleged to have said: “I can only remember shooting them once as I told you before, and the only one I remember hitting with my rifle was the young girl when she came at me.”
5.27) This answer was still in contradiction of Dr Dwyer’s post mortem finding on the death of Whelan. Dr Dwyer had examined his body along with the broken, blood-splattered Sportsman rifle and reported: “…the fractures on Whelan’s skull were consistent with having been caused by a blow from this rifle butt.”
5.28) As mentioned earlier, Professor Garrett found: “…police often ceased their investigation once they obtained a confession, and, in doing so, they not only failed to substantiate the confession but failed to investigate glaring inconsistencies between the confession and crime scene evidence.” (Garrett, The Substance of False Confessions, Stanford Law Review 2010)
6) THE ACCUSED”S SHOE SIZE DID NOT MATCH THE MURDERER’S PRINTS AT THE MURDER SCENE
Documentation: transcript of the trial.
Effect: the fact that the accused’s shoes were smaller than the shoe prints identified by prosecution witnesses as those of the murderer indicates he could not have been the murderer.
6.1) Witnesses who gave evidence about the murderer’s footprints found at the murder scene estimated the shoe size to have been between 10 down to seven at the smallest.
6.2) The size of the accused’s shoes was never mentioned or questioned at the trial until the close of the defence case when the accused mentioned in his statement that he took size five and a half or six if the smaller size was not available.
7) THE PRINCIPAL PROSECUTION WITNESS LIED WHEN GIVING EVIDENCE
7.1) Detective Glen Hallahan, the police officer who arrested the defendant on the evening of January 21 1958 and was responsible for the basis of the evidence against the accused, including the first version of the alleged confession, lied at the trial.
Documentation: Transcript of the trial and contemporaneous newspaper reports.
Effect: Had this been adduced, the rest of Detective Hallahan’s testimony would have been open to doubt.
7.2) At the trial defence counsel asked Detective Hallahan on separate occasions:
“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?”
Hallahan: “No, I didn’t know that at all.”
Q: “You told me earlier that you had no detailed information about the
Sundown murders at the time of questioning Bailey.”
A: “I had none connecting Bailey with them.”
Q: “At the time when you first saw the accused’s DeSoto in Mt Isa did you
have in your possession the registration number SA 379-622?”
A: “No."
7.3) Detective Hallahan swore that he had found the car belonging to the accused at 5pm on January 21 1958 and had kept watch on it until 6.20pm when the accused opened the car’s door. The accused had then been taken to Mount Isa Police Station where he was questioned.
7.4) Adelaide’s The Advertiser reported on Wednesday January 22: “Yesterday the hunt was narrowed down to a black 1938 DeSoto sedan with the registered numbers of either SA 379-622 or SA 534-755.”
7.5) The Courier-Mail reported on the same day: “Mt Isa police were alerted by Adelaide headquarters yesterday to watch for a black DeSoto sedan towing a light-coloured caravan.”
7.6) Next day The Advertiser reported: “Insp Gully said last night that SA police had tracked a black DeSoto sedan through the outback since January 9.”
7.7) In his memoir published in 2010 by the South Australian Police Association, Detective Hopkins, who had been a senior detective involved in the murder investigation and who interviewed the accused at Mount Isa and gave evidence at the trial, said that on January 21 1958 he and a colleague had been making enquiries about the murders in remote
central Australia. He said in his memoir: “On 21st January we returned to Kulgera Station and were advised by radio to return to Alice Springs immediately, because the offender had been arrested at Mt. Isa.” [emphasis added]
7.8) He also said: “We set out immediately on the 200 mile trip back to Alice Springs and on arrival there were told that the offender had been identified because his name and address were among those listed in the registers of the caravan parks in Alice Springs. The police at Mt Isa were contacted, and Bailey was found at the hospital…”
7.9) He said that at an earlier date a man named Hassell-Brown had identified the wanted car as a DeSoto and “…the Adelaide C I B discovered that the DeSoto vehicle, valued at 300 pounds, had been illegally obtained at Renmark by a person giving the name of
Raymond John Bailey of Dubbo.”
7.10) Evidence was given at the trial that the accused was a carpenter at the hospital. The officer in charge of Mount Isa CIB was Detective Hallahan.
7.11) A second lie involved the questioning of the accused’s wife.
7.12) Defence counsel questioned Detective Hallahan on whether the accused’s wife had been questioned on the night of the arrest, January 21.
Q: “Was his wife questioned that night?”
A. “She was not.”
Q: “Was she taken to the CIB building at any time?”
A: “Not that night.”
Q: “Do you swear she was not?”
A: “I swear she was not questioned that night.”
7.13) The accused said in his statement that on the night of January 21 at Mount Isa Police Station: “I was taken to the end room on the first floor. 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 could hear some words which were said but I could not make out the conversation. 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.”
7.14) The accused’s version of what happened is supported by almost identical stories which could only have come from a police source on the night of January 21st/22nd to The Advertiser in Adelaide and to The Courier-Mail in Brisbane, both more than 1,800 kilometres away.
7.15) The Advertiser reported on the morning of January 22: “At midnight police were still questioning a 22-year-old woman, believed to be the man’s wife.”
7.16) On the same day The Courier-Mail said: “Police early this morning were still questioning a 22-year-old woman.”
7.17) The accused’s wife, Patricia Merle Bailey, was aged 22.
7.18) There is further doubt about Detective Hallahan’s testimony.
7.19) Defence counsel asked Detective Hallahan about reports of phone calls on the evening of January 21 1958 between Adelaide, where Detective Inspector Gil Gully was superintending the search for the killer of the three victims, and Mount Isa Police Station where Detective Hallahan was in charge of the CIB.
Q: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.”
7.20) The Advertiser reported on 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.”
7.21) Mr McKinna was the South Australian police commissioner.
8) THE PRINCIPAL PROSECUTION WITNESS WAS NOT OF GOOD CHARACTER
Documentation: Queensland court records, Queensland Hansard.
Effect: Throws into doubt Hallahan’s testimony and the validity of the alleged confession.
8.1) Inconsistencies in Detective Hallahan’s evidence should have been further explored at the trial but the fact that in the next five years Hallahan was prepared to fabricate confessions, give false evidence and lie to courts on several occasions only emerged over time and could not have been adduced at the time.
8.2) However, in considering the veracity of the alleged confession by the accused it is pertinent to examine other alleged confessions obtained by Hallahan in other cases, and a case in which Hallahan was found to have withheld evidence crucial to the defence.
8.3) In the same month that the accused’s trial took place (May 1958) Detective Hallahan arrested a man named Kryloff in Brisbane. Kryloff later appealed the resulting sentence on the grounds that his plea of guilty had been the result of “enticement or inducement” by Hallahan. The three judges comprising the Full Court were so concerned by what had happened that they laid down a course of action all magistrates should follow if a defendant does not have a legal representative and pleads guilty (Hallahan v Kryloff; ex parte Kryloff [1960] QWN 18).
8.4) On April 4 1961 Detective Hallahan arrested and charged Tony Francis Cavanagh who pleaded guilty on the same day at Brisbane Magistrates Court to theft. Hallahan presented the court with a written confession. However, it was later discovered there had been no theft, resulting in Cavanagh receiving a pardon (pp126/127 and 340/341 Queensland Hansard 1961, Sunday Truth May 14 1961).
8.5) In this case it is also pertinent to note the way in which Detective Hallahan was alleged to have extracted Cavanagh’s confession. Cavanagh told the Sunday Sun newspaper he had been told by Hallahan: “You can either plead guilty, go before the court today and be home with your wife this afternoon or we’ll throw you in jail until you come clean and your wife will be worried sick at home”. I know I pleaded guilty but I challenge anyone else placed in similar circumstances to do anything different. I’d been taken away by the police and faced with a weekend in the watchhouse if I pleaded not guilty. Let’s put it bluntly, I was scared, scared for my wife and child, and with me they come first.” (Sunday Truth August 27 1961)
8.6) The alleged threats are almost identical with those the Sundown accused said in his statement had been made by Hallahan to him while he was being held at Mount Isa Police Station.
8.7) On May 4 1962 Hendrikus Plomp was found guilty at Brisbane Supreme Court of rape and sentenced on May 10 to six years’ imprisonment. It was then discovered by the defence that two statements which would have exonerated the accused had been omitted by Hallahan from the evidence made available to the defence. On July 27 1962 the Court of Appeal overturned the guilty finding and refused to order a new trial (Q v Plomp 1962).
8.8) On September 25 1962 Roy Clifford Hart was found not guilty at Brisbane Supreme Court of wilfully and unlawfully setting fire to a dwelling house despite Hallahan and another detective having sworn that Hart had confessed. Justice Sir Roslyn Philp told the jury: “What I want to stress to you is this: there is no evidence of the crime in this case and no evidence that the prisoner committed it except his alleged confession.” Sir Roslyn recommended that Hallahan be prosecuted for perjury.
8.9) On September 26 1963 the Full Court found that in the case of Gary William Campbell a prepared statement by Hallahan submitted to Brisbane Magistrates’ Court amounted to a fraud on the court and ordered Campbell’s conviction for vagrancy to be quashed. The appellant had appealed by way of order to review on the ground that the conviction and order were obtained by fraud and duress. He adduced evidence by affidavit that Hallahan threatened him with a false charge carrying a much higher maximum sentence than vagrancy and said that if the appellant pleaded guilty to vagrancy he (the respondent) would not make any serious statement against him before the magistrate. The three judges comprising the Full Court decided Hallahan had committed a fraud on the court.(Hallahan v Campbell; ex parte Campbell (No 2) [1964] Qd R 337)
9) DEFENCE COUNSEL MADE IT CLEAR HE DID NOT BELIEVE THE ACCUSED”S PLEA OF NOT GUILTY
Documentation: Transcript of the trial.
Effect: It is improper for counsel to express his/her own opinion as to the guilt or innocence of the accused whose right it is to have his guilt or innocence decided by a jury upon the sworn evidence alone.
9.1) Defence counsel made it clear to the court he did not believe his client and, instead, believed the alleged confession, which was revealed in evidence to have been part-written by Detective Hallahan, enlarged by South Australian Detectives Moran and Hopkins, and typed by Moran.
9.2) The accused told the jury in an unsworn statement: “Gentlemen, I did not kill any of these people and I am not guilty of this charge.”
9.3) Defence counsel said of the accused’s interrogation by Detective Hallahan in his summing up: “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.”
9.4) Defence counsel also said: “There is no ground to suggest there was any threat or promise” in obtaining the confession.”
9.5) This statement contradicts the accused’s statement in which he said: “After Hopkins and Moran arrived, which was about half past three, they questioned me until about 8 o’clock that night. Hallahan was present most of the time while they were questioning me. 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.”
9.6) The accused’s statement also said: “I was in such a state at that time that I would have done anything they told me to do. 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.”
9.7) Further, his statement said: “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. I was not allowed to have a bath and only had one shave and that was on the day I went to court to be extradited to South Australia.”
9.8) Although the jury would not have been aware of proceedings during a voir dire, the comments of defence counsel during a voir dire are a further demonstration he believed the prosecution case rather than his client.
9.9) In the voir dire, defence counsel said: “The first confession was made about 12.10.”
9.10) He also said: “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.”
9.11) When the prosecution argued that one could have no uneasiness about the alleged confession, defence counsel interjected: “…who might have been able to keep his mouth shut if he were cautioned.”
9.12) It is improper for counsel to express his/her own opinion as to the guilt or innocence of the accused, whose right it is to have his guilt or innocence decided by a jury upon the sworn evidence alone.
9.13) For instance, the South Australian Bar Association’s Barristers’ Conduct Rules state at para 37: “A barrister… must promote and protect fearlessly and by all proper and lawful means the lay client’s best interests to the best of the barrister’s skill and diligence …”
9.14) And at para 43: “A barrister must not make submissions or express views to a court on any material evidence or issue in the case in terms which convey or appear to convey the barrister’s personal opinion on the merits of that evidence or issue.”
9.15) It is clear that on such a basis defence counsel failed his client.
9.16) 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)
10) CLAIMS OF OPPRESSION SUPPORTED BY CONTEMPORANEOUS REPORTS
10.1) Allegations by the accused that he had been oppressed during interrogation by detectives are supported by contemporaneous newspaper reports.
Documentation: Transcript of the trial and contemporaneous newspaper reports together with academic studies.
Effect: There were grounds to suggest the alleged confession had been induced by threats, promises or untrue representations made by the police which, had defence counsel pursued them, could have ruled the alleged confession inadmissible.
10.2) The alleged confession was based on interviews with the accused carried out by Queensland Detective Glen Hallahan on January 21 and 22 1958 and continued by Detectives Moran and Hopkins from South Australia on the 22nd.
10.3) The accused alleged that on the night of January 21 at Mount Isa Police Station: “I was taken to the end room on the first floor. 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 could hear some words which were said but I could not make out the conversation. 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.”
10.4) The accused’s version of what happened is supported by almost identical stories which could only have come from a police source on the night of January 21st/22nd 1958 to The Advertiser in Adelaide and to The Courier-Mail in Brisbane, both more than 1,800 kilometres away.
10.5) The Advertiser reported on the morning of January 22: “At midnight police were still questioning a 22-year-old woman, believed to be the man’s wife.”
10.6) On the same day The Courier-Mail said: “Police early this morning were still questioning a 22-year-old woman.”
10.7) The accused’s wife, Patricia Merle Bailey, was aged 22.
10.8) As stated earlier, the accused’s statement also said: “After Hopkins and Moran arrived, which was about half past three, they
questioned me until about 8 o’clock that night. Hallahan was present most of the time while they were questioning me. 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.”
10.9) The accused’s statement also said: “I was in such a state at that time that I would have done anything they told me to do. 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.”
10.10) Further, his statement said: “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. I was not allowed to have a bath and only had one shave and that was on the day I went to court to be extradited to South Australia.”
10.11) He may have underestimated the disruptions to his sleep because Adelaide’s The News reported on Saturday January 25 that police had been keeping a special watch on the accused and inspecting his cell every 15 minutes.
10.12) Detective Moran said in evidence: “The statement was taken down at his dictation, most of it voluntarily – from his own story.” When defence counsel asked for the words to be read back to the court Moran said he wished to clarify that it was all made voluntarily.
10.13) Prosecution counsel told the jury: “Bailey had claimed that the police forced him to confess to the murders by cruelly ill-treating his wife. If this was true, the police were guilty of ‘the biggest frame-up in Australian history.”
10.14) Writing about a similar case which was heard the following year, the Hon Justice Michael Kirby AC CMG said that the confession in that case “would today have been obliged to run the gauntlet of the High Court's rulings in McKinney v The Queen. Forty years ago, the allegation of an improper extraction of a confession from accused prisoners by police and other officials was regarded by some judges and magistrates as an affront to the integrity of Crown officers.” (2002 (23) Adelaide Law Review)
10.15) This argument should now be assessed in the light of Section 84 of the Evidence Act 1995, which, with section 85, replaces the voluntariness rule, includes a provision which requires the party against whom admissions are sought to be led to raise an issue about whether the admission was influenced by violence, oppression, inhuman or degrading conduct or threats thereof before the provision excluding admissions so obtained is triggered: subsection 84(2).
10.16) John Bradshaw, director of the Washington office of the Nobel Prize-winning Physicians for Human Rights, an American not-for-profit organisation, has said of the use of sleep deprivation and isolation: “…particularly when used in combination, these
techniques amount to psychological torture.” (Inter Press Service, January 29, 2009)
10.17) There was evidence the accused was deprived of sleep and suffered isolation during his interrogation.
10.18) The winter 2002 edition of Amnesty International carried an article headed “False Confessions - Scaring Suspects to Death”.by Professor Edwin Dobb, former acting editor-in-chief of “The Sciences”.
10.19) It summarises: “When police interrogators manipulate suspects into confessing to crimes they didn't commit, innocent people end up on death row.”
10.20) Dobb wrote: “Certain people — the uneducated, the poor, the emotionally insecure, the mentally impaired, the young — are especially susceptible to manipulation in the interrogation room. In cases involving the death penalty, such vulnerability is especially dangerous.”
10.21) In regard to being uneducated, the Sundown Murders accused had left school at 14 to become a carpenter.
10.22) Social psychologist Richard Ofshe of the University of California, Berkeley, and Richard Leo, a University of California criminologist, have analysed the Reid Technique as outlined in the textbook “Criminal Interrogation and Confessions” by Fred Inbau and John Reid. They report the initial step in such an interrogation is always the same: misrepresenting the nature of questioning.
10.23) In the accused’s case he was held for questioning regarding Hallahan’s claim of finding a pistol in the DeSoto car and of false pretences.
10.24) Ofshe and Leo found that investigators commonly fabricate evidence, a technique designed to destroy a suspect’s confidence. “They can lie about statements from a witness or accomplice…” says the article.
10.25) In the accused’s case Detective Hallahan who was conducting the interrogation, recorded in his sworn statement that he twice left the room to consult with the accused’s wife and returned to tell the accused that she had provided incriminating evidence that he had a rifle at the time of the murders.
10.26) The High Court held in Mckinney v The Queen (1991) 171 CLR 469 para 15: “Once it is accepted that a record of interview may be fabricated, it must also be accepted that the atmosphere, including the isolation and powerlessness of a suspect held in police custody, which allows for its fabrication may also be conducive to the suspect signing a false document.”
11) LACK OF APPROPRIATE CAUTION
11.1) Detective Hallahan interviewed the accused about topics relevant to the murders before cautioning him about the murders.
Documentation: Transcript of the trial and contemporaneous newspaper reports.
Effect: A review of the case should take into account the Evidence Act 1995 which makes it clear admissions obtained without prior caution are deemed to have been obtained improperly.
11.2) The accused was arrested on January 21 1958, the day after The News had reported that Detective Inspector Gully, the officer leading the hunt for the murderer, had announced “there was no doubt the occupants of the car” he was driving “could help the police” with inquiries. Yet, according to the statement of arresting officer Detective Hallahan, the accused was not cautioned about the murders until about 12.15pm on January 22, despite having been questioned by Hallahan on issues relevant to the
murders for about three hours on the evening of the 21st and since 10.30am that morning.
11.3) The News of January 21 had headlined a story “Police now hunting black 1938 DeSoto,” The story said: “Find a black 1938
DeSoto sedan, numbered SA 379-622 or SA 534-755, associated with a man, woman and a fair-haired boy.” This message was flashed to police throughout the Commonwealth today when the Sundown triple murder hunt took another dramatic turn. The mystery car, towing a small cream or beige caravan, was seen near the scene of the murders about 8pm on Thursday, December 5, the day the murders are believed to have been committed. The car and caravan were seen again on December 7 or 8 north of Tennant Creek, heading for Mount Isa or Darwin. On November 25 the car was seen bearing the number SA 379-622.”
11.4) The Advertiser of that day reported: “The acting chief of the CIB, Det Insp GL Gully said yesterday it had now been
ascertained that a man, woman and child known to be travelling in the car could assist police in their enquiries.”
11.5) These reports followed other reports about the police search for a car and caravan, with The News having reported on January 20: “The acting chief of the CIB, Det Insp Gil Gully said yesterday it had now been ascertained that a man, woman and child known to be travelling in the car could assist police in their enquiries.”
11.6) When he was questioned in a voir dire during the trial Detective Hallahan was asked: “On Tuesday 21 Jan - on that day the police at Mt Isa had received a phone message from the Tennant Creek police, which originated in Adelaide. Did you
understand it to be an Australia-wide alert for a dark-coloured sedan car thought t be a Dodge, drawing a light-coloured caravan?” The prosecution objected. Detective Hallahan claimed privilege.
11.7) Evidence given at the trial makes it plain that on the evening the accused was found, Detective Hallahan knew that the accused was wanted in connection with the murders.
11.8) But prosecution counsel insisted in a voir dire: “Up to his first confession Bailey might have been merely a witness in the case because the police had no idea of his relation to the case.”
11.9) Detective Hallahan’s account of the arrest on January 21 1958 was included in a report by The News of the accused’s first appearance in Mt Isa Magistrates’ Court on Friday January 24 when he said that at 5pm last Tuesday with Detective Pfingst he saw a dark coloured 1938 DeSoto car in Miles Street, Mt Isa. “I kept this vehicle under observation and at 6.20pm I saw the present defendant get into it.”
11.10) Detective Hallahan’s statement says that the first question he asked the accused after he had been taken to Mt Isa Police Station after the arrest on January 21 was: “Do you own a caravan?”
11.11) Hallahan was not questioned by defence counsel to discover why he had asked such a question.
11.12) It had nothing to do with the charge of being in possession of a concealable firearm that was laid against the accused on that night.
11.13) Hallahan’s statement says he charged the accused at 9.30pm on January 21 with being found in possession of an unlicensed concealable firearm. He says he left the accused when he was locked up at 9.40pm.
11.14) In cross-examination defence counsel said to Detective Hallahan:
“I am suggesting that from the very outset of your interrogation with Bailey, you were intending to question him to see whether he was connected with the Sundown murders.”
11.15) Prosecution counsel objected but was overruled.
11.16) Hallahan: “Yes. With a view to seeing whether he was the culprit or alternatively to see if he had any information connected with it.”
11.17) When Detective Hallahan resumed questioning the accused the next day (January 22) there can be no doubt he knew the accused was wanted in connection with the Sundown Murders. The Brisbane-based Courier-Mail, printed overnight, carried
information which it it would have had to have received on the 21st, saying: “Two South Australian detectives investigating the Sundown triple murders will fly by specially chartered plane to Mt Isa this morning to question a man, woman and child. They believe the three may be able to help them in their investigations.”
11.18) At 9.50am on the 22nd Hallahan charged the accused that he had been guilty of false pretences in obtaining the DeSoto car At 10.00 the accused appeared at Mt Isa’s court on the false pretences charge. The News of January 22 reported: “Ten police officers filled the tiny courtroom at Mount Isa today.”
11.19) Defence counsel failed to ask Detective Hallahan why 10 officers would have been present if the accused was suspected only of false pretences.
11.20) Detective Hallahan’s statement says he resumed his questioning of the accused from 10.30am to 1.30pm.
11.21) His sworn statement includes this passage: The defendant then lowered his head and supported his head with his hands and said: “I do know something about those people who were killed, can you give me a smoke?” I then handed him a cigarette. The time was approximately 11.50am and I said: “What do you know about it?”
11.22) According to Detective Hallahan, this admission by the accused and Hallahan’s resulting question did not involve a caution being administered.
11.23) The sworn statement continues with questions and answers about the Sundown Murders until this passage:
I said: “I am going to ask you some more questions about this but before I do I am going to tell you that you are not obliged to answer any questions or make any statement as anything you do say will be noted and may be used in evidence. Do you understand that?”
He said “Yes but I will tell you what happened.” When I cautioned the defendant, Inspector Bauer was there and he remained there thereafter. The time was then approximately 12.15pm.
11.24) Detective Hallahan’s statement says that the accused was questioned for about another 25 minutes about the Sundown Murders without a caution regarding the murders being administered.
11.25) All these alleged questions and answers were included in Detective Hallahan’s testimony at the trial.
11.26) In his summing up the judge said: “…there is undoubtedly the fact that no caution was administered in relation to the Sundown murder 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.”
11.27) A police officer must, as soon as reasonably practicable following the arrest of a person (regardless of whether apprehension occurred with or without a warrant), warn the arrested person that anything they say may be taken down and used in evidence [Summary Offences Act 1953 (SA) s 79A(3)(b)].
12) “WE HAVE NO JUDGES’ RULES IN SOUTH AUSTRALIA”
12.1) The trial judge rejected a submission by defence counsel at the trial that under judges’ rules the alleged confession should be rejected.
Documentation: Transcript of the trial.
Effect: without the alleged confession there was no direct evidence that the accused had committed the murder.
12.2) The Australian Law Reform Commission asserts: two distinct rules apply to the admissibility in evidence of any confession or
admission made to the police:
i. to be admissible the statement must be voluntary and not the result of ‘duress, intimidation, persistent importunity, or sustained or undue insistence or pressure’;
ii. even if a statement is found to be voluntary it may still be excluded in the exercise of the judge’s discretion if it is considered that it would be unfair to the accused to receive it in evidence.
A relevant factor in determining unfairness is whether the Judges Rules have been adhered to by the police when questioning the accused person, although non-compliance with the Judges Rules does not result in automatic exclusion of the evidence obtained. These principles have been restated by Chief Justice Gibbs:
The principles governing the admissibility of confessional evidence are not in doubt … A confession will not be admitted unless it was made voluntarily, that is in the exercise of a free choice to speak or be silent. But even if the statement was voluntary, and therefore admissible, the trial judge has a discretion to reject it if he considers that it was obtained in circumstances that would render it unfair to use it against the accused.
The rationale for the rules was well expressed by the Royal Commission on Criminal Procedure (UK) in 1981: The presumption behind the Judges Rules is that the circumstances of police questioning are of their very nature coercive, that this can affect the freedom of choice and judgement of the suspect (and his ability to exercise his right of silence), and that in consequence the reliability (the truth) of statements made in custody has to be most rigorously tested. (Australian Law Reform Commission, August 18 2010)
12.3) At the trial defence counsel submitted: “Bailey is arrested and taken into custody. He is questioned about other matters, charged with possession of an unlicensed pistol and locked up for the night. He is brought before the court next morning and remanded and after all that he is questioned on this matter. 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. That involves inadmissibility of that admission and all that followed on the ground that it was not voluntary. There is no ground to suggest that there was any threat or promise. That does not decide the question that the Crown has not shown this statement to be voluntary.
“The English Judges’ Rules are a definition of the standard of propriety of what a police officer should do. If you read the evidence, he was taken into custody at 6.20pm, kept in custody at Mt Isa overnight, charged next morning over a pistol and questioned still in custody. 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. The High Court here has established the English position, that while the Judges’ Rules have not the force of law, any flagrant breach results in rejection of a confession.”
“They had gone straight on with the interrogation at 4.30pm and there was nothing to remove the effect of what Hallahan had done. Hallahan’s recitation to Moran and Hopkins and their interrogation of Bailey based on what they had been told by
Hallahan should be excluded…It was contrary to fair play that he should have been questioned without caution.”
12.4) In summing up he said: “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.
“The questioning went on and on. A written document was produced and Bailey was invited to sign. There are more ways of breaking a man’s will than by pummelling his body. They can put him in a padded cell, wake him every half hour. It is not suggested that Bailey was battered. He was told his wife would be questioned until he confessed. They produce the oral confessions, they produce the written confession. It is for you to say. Four versions did not satisfy the police, and on they went. You should suspect a confession supposed to be the offspring of remorse and penitence but repudiated by the prisoner in the court. All those of us defending him can say now is to take the Crown’s proof and say ‘There’s a hole, there’s a hole, it doesn’t add up’. I submit that the case rests on the alleged confessions but there are so many loose ends. You cannot be satisfied that the Crown has covered the omissions by saying he
confessed. It is unsafe to say anything but that it has not been proved that Bailey committed this crime.”
12.5) The judge said: “We have no Judges’ Rules in South Australia.”
12.6) The evidence of the accused being interviewed about matters connected with the
murders is also relevant.
12.7) Detective Hallahan’s statement says that the first question he asked the accused after being taken to Mt Isa Police Station after the arrest on January 21 was: “Do you own a caravan?”
12.8) Police had been searching for a caravan in connection with the Sundown Murders.
12.9) The question has nothing to do with the charge of being in possession of a concealable firearm that was laid against the accused on that night.
12.10) Detective Hallahan’s statement says that on January 22 the accused was questioned about the Sundown Murders for about 25 minutes immediately before a caution regarding the murders was administered.
13) THE PROSECUTION INVENTED A MOTIVE FOR THE MURDERS
13.1) In summing up, the prosecution counsel invented a motive for the murders, creating a scenario for which there had been no evidence. The judge, in summing up, did not instruct the jury as to what credence, if any, it should attach to that motive.
Documentation: Transcript of the trial.
Effect: The jury may have taken the invented scenario into consideration when deciding its verdict. It also throws further doubt on the conduct of the trial.
13.2) Prosecution counsel told the jury that counsel’s right was no more than to submit argument on what was proved in evidence.
13.3) But then he went on to allege: “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.”
13.4) Defence counsel said in his summing up: “In summing up, the prosecuting counsel invented a scenario for which there had been no evidence. Mr Scarfe’s theory of an armed hold-up is pure speculation. In this case, with a man’s life at stake, you cannot speculate.”
13.5) The alleged confession obtained by Detective Hallahan, contained no motive for the accused to leave his caravan in the dark of night to walk into the bush, allegedly with a rifle, to visit the Bowman camping party, and no motive to kill people apart from having shot one accidentally and two more to stop them from reporting him to police. The later alleged confession obtained by Detectives Moran and Hopkins contained a detailed (but incorrect) story of how the killings occurred but again without a motive. It was only as an afterthought in the last four paragraphs or so that the following sentence was added: “When I went back to where I left the bodies on Friday 6/12/57 I took a wallet out of the hip pocket of the dead man while he was under the canvas.”
13.6) But this act was portrayed in the alleged confession as an afterthought on the day after the murders and not a motive for the killings.
13.7) The invented motive by the prosecution in the summing up alleged: “The whole situation points clearly at an attempt at robbery which went wrong.”
13.8) There is no such clarity.
13.9) Prosecution counsel alleged: “…Bailey held up the three travellers for money at gunpoint…”
13.10) This is pure invention but stated as a fact.
13.11) “…Whelan tried to get the Remington rifle but Bailey shot him in the back.”
13.12) There had been no evidence that Whelan had tried to get the Remington rifle, a Sportsman model. In fact, there had been no mention of a Remington rifle in the alleged confession.
13.13) “Bailey grabbed that rifle from Whelan…”
13.14) There had been no evidence of the accused grabbing a rifle from Whelan.
13.15) “…put in perhaps three more cartridges and tried to shoot them but the rifle jammed.”
13.16) This is pure invention which bears no resemblance to any of the evidence.
13.17) The judge’s summing up did little if anything to dismiss this invention from the jury’s minds.
13.18) The judge said: ”The Crown’s theory is that it originated in an attempt at the offence of robbery
under arms and that as a result of perhaps as a warning by the dogs the three people at the camp were awakened or alarmed and it then proceeded as these things sometimes do from one stage to another rapidly and with increasing feelings because once a course of violence is embarked upon it is very difficult to say where it will stop and resort to weapons may become easier as feeling increases. But if it is not that motive, well, gentlemen, I suppose it is hard to say what other motive there is.”
13.19) Instead of pointing out there had been no evidence on which such a scenario could be based the judge muddied the water even further by enlarging on the theory.
13.20) He ended this section of the summing up by saying “if it is not that motive, well, gentlemen, I suppose it is hard to say what other motive there is.”
13.21) The jury may well have taken this to suggest that the only conceivable motive was the theory advanced by the prosecution.
14) ALLEGED CRUCIAL WITNESS NOT CALLED
14.1) The accused’s father-in-law was said by prosecution counsel in his opening address to be as important to the prosecution case as the accused’s alleged confession. He was never called to give evidence.
Documentation: Transcript of the trial.
Effect: Casts further doubt on the prosecution case.
14.2) Detective Hallahan, who created the first alleged confession by the accused, alleged he had been present when the accused had told his father-in-law, a Mr Hudson, that he was guilty of the Sundown Murders.
14.3) Reference to this accusation was included in the opening address of prosecution counsel who said the prosecution case depended on two branches of evidence, one of which was circumstantial.
14.4) “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,” said prosecution counsel.
14.5) At the committal, in a voir dire, Detective Hallahan was handed his typed statement.
14.6) He said: “The typed statement I have in front of me is the one handed to you to read this morning. That does not contain the whole of what I said to the accused relating to the Sundown Murders. That does not contain a conversation that the accused had with his father in law on 25th.”
14.7) Detective Hallahan had interviewed the accused at Mount Isa Police Station on January 21 and 22 1958. This had led to the alleged confession being typed. He alleged that he was present on January 25 1958 for what he alleged was a conversation between the accused and his father-in-law.
14.8) Detective Hallahan alleged: “At 7.10pm on Saturday, 25th of January, 1957, I had a conversation with a man named Mr Hudson at the Mount Isa CIB Office. At 7.30pm on the same date I saw the accused at the Mount Isa Watchhouse.
“I said to him: ‘Your father in law Mr Hudson has arrived from Dubbo (P111) and he wants to have a talk with you.’
“He replied ’It’s going to be hard to face him now.’
“I said: ‘I will bring him down here and I will have to be with you when you speak to him. Remember about the warning.’
“He replied ‘Yes’.
“I then brought Mr Hudson into the Mount Isa Watchhouse and he shook hands with the accused and said ‘How are you Ray?’
“The accused replied ‘OK thanks.’
“Mr Hudson then said: ‘Did you kill those people back there?’
“The accused replied: ‘Yes I killed them alright.’
“At that stage Mr Hudson collapsed and after some 10 minutes he was revived and he said to the accused ‘Why did you do it Ray? Why did you kill those three people?’
“The accused replied: ‘I don’t know why I did it. I don’t know why I killed them. It must be my nerves’.”
14.9) In cross-examination Detective Hallahan said: “I made no notes concerning the conversation of Saturday 25th January… I made a typewritten record of that interview… That would be Friday 21 February.”
14.10) This was an admission that he had made no notes of what he alleged was a crucial conversation but that almost four weeks later was able to type a verbatim account of the alleged conversation.
14.11) February 21 was the last working day before the start of the committal.
14.12) The accused said in his statement: “My father-in-law, Mr Hudson, came to see me on the following Saturday at Mt Isa. The evidence given by Detective Hallahan about Mr Hudson’s conversation with me is not true. I did not tell Mr Hudson that I had killed these people or anything like that. I instructed my solicitor to arrange for Mr Hudson to come here from Dubbo to give evidence but I am told he has the mumps and is not well enough to come.”
14.13) Despite the reference in the opening address by the prosecution counsel referring to the importance of the evidence of Mr Hudson, he was not called to give evidence and no explanation of his absence was made, other than the accused’s statement..
14.14) Of note, also, is that there is no mention in this alleged conversation of motive.
14.15) In order to ensure that all relevant evidence is fairly represented at a trial it is the duty of the prosecutor to call all material and credible witnesses.
14.16) The failure of defence counsel to call Mr Hudson or to refute in some way the accusation made by the prosecution is a further example of having failed to use the “best of the barrister’s skill and diligence.”
15) JUDGE TOLD JURY IT COULD HAVE NO DOUBT ABOUT THE CONFESSION
15.1) The judge, in his summing up of the veracity of the alleged confession, concluded this section of his address with a sentence which included the phrases “the progressive admissions” “produced “a statement by him” “about which you can have no doubt.”
Documentation: Transcript of the trial.
Effect: Suggests to the jury that the alleged confession should be believed.
15.2) 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.”
15.3) The allegation of “very unfair treatment” was only a “possible view” to which the judge added “I suppose”.
15.4) However, “the progressive admissions” “produced “a statement by him” “about which you can have no doubt.”
15.5) The case has certain similarities with the trial the following year of Rupert Max Stuart, over which the same judge, Geoffrey Reed, presided.
15.6) The report of the “Royal Commission in regard to Rupert Max Stuart”, held to investigate the way in which courts had dealt with the case and presented to the South Australian Legislative Council on December 3 1959, said that: “In directing the jury the trial judge treated the confession as the crux of the case, and stressed the burden on the prosecution of proving that it was freely and
voluntarily made…It is necessary to bear in mind that it was on this evidence and on this direction that the jury returned their verdict of Guilty.”
15.7) The commission referred to evidence given by police officer Jones at the trial that, with minor exceptions, the words attributed to the accused in the confession were “exactly his words”.
15.8) The commission reported: “We have no doubt that the petitioner had more help with the wording of the written confession than Jones was prepared to admit.”
16) JURY NOT TOLD FALSE CONFESSIONS FEATURE IN MANY MURDER CASES
Documentation: references to academic studies regarding false confessions.
Effect: The jury may well have been influenced by such evidence.
16.1) Empirical studies in the USA have shown that it is not uncommon for innocent people to falsely confess to murder.
16.2) Professor Drizin and Professor Leo (2004) found that in 125 cases of proven false confessions in the USA between 1971 and 2002, 81% of the confessions occurred in murder cases. (The Problem of False Confessions in the Post-DNA World, North Carolina Law Review, 2004)
16.3) Stanford Law Review published a study in 2010 revealing post-conviction DNA testing had exonerated more than 250 convicts, more than 40 of whom falsely confessed to rapes and murders. (Garrett, The Substance of False Confessions, 2010)
16.4) The Innocence Project discovered that of 375 convicted people who had later been exonerated by DNA evidence, 130 had been convicted for murders and of those 81 (62%) had made false confessions. And of 24 exonerations in New York State, 13 had been based on false confessions. (The Innocence Project, Cardoza School of Law)
16.5) Because defence counsel in the Sundown Murders case did not call any witnesses he was unable to call experts to explain how studies had shown how and why innocent people had signed confessions of guilt.
16.6) In 1958 studies of false confessions such as “Convicting the Innocent: Sixty-five Actual Errors of Criminal Justice” (1932), “The Court of Last Resort”, Erle Stanley Gardner, 1952, and “Not Guilty”, Jerome and Barbara Frank, 1957, were available to the defence.
16.7) Professors Drizin and Leo comment: “In all three works, the specific causes of wrongful conviction—including the problem of false confession—are discussed in relation to the cases that are presented…”
16.8) Such testimony could have been a crucial aspect of the defence case, because the only non-circumstantial evidence the prosecution presented was the alleged confession signed by the accused.
17) POLICE REGARDED SUSPECT GUILTY EVEN BEFORE BEING INTERVIEWED
17.1) Even before the accused was questioned about the Sundown Murders soon after 10.30am on January 22 police had made up their minds he was guilty.
17.2) Police were so sure he was the murderer that after he had been taken into custody at 6.20pm on January 21 1958 detective Hopkins recalled he had received a message in central Australia where he was making enquires about the murders that “the offender had been arrested in Mount Isa”.
17.3) And someone in the police service contacted the media on the evening of January 21, enabling The Courier-Mail to carry the news that: “Two South Australian detectives investigating the Sundown triple murders will fly by specially chartered plane to Mt Isa this morning to question a man, woman and child. They believe the three may be able to help them in their investigations.”
Documentation: Trial transcript and academic research.
Effect: Provides evidence that the accused was not interviewed to elicit facts but was interrogated to in order to provide a confession.
17.4) In a paper titled “False Confessions: Causes, Consequences, and Implications” Professor Leo reviewed empirical research on the causes and correlates of false confessions and found: “Once detectives misclassify an innocent person as a guilty suspect, they often subject him to an accusatorial interrogation. Getting a confession becomes particularly important when there is no other evidence against the suspect, especially in high-profile cases in which there is great pressure on police detectives to solve the crime, there is no other source of potential evidence to be discovered, and typically there is no credible evidence against an innocent but misclassified suspect. It is perhaps not surprising that most documented false confessions occur in homicides and high-profile cases.” (The Journal of the Academy of Psychiatry and the Law - False Confessions: Causes, Consequences, and Implications 2009)
17.5) Detective Hallahan testified he had “a summary of what had happened, including the fact that a rifle had been used.”
17.6) He admitted under cross-examination at the committal: “When I was questioning the accused I had received some details concerning the Sundown murders.” But when he was asked: “From what source did you have that information?” prosecution counsel
objected and this was upheld by the magistrate.
17.7) Before Hopkins and Moran, who had detailed knowledge of the crime, arrived in Mount Isa during the afternoon of January 22, Detective Hallahan compiled a statement alleging the accused had confessed to the Sundown Murders - a confession which bore little resemblance to what had actually happened.
17.8) It is logical to suggest that Hallahan’s lack of knowledge of major details of the murders resulted in there being no explanation of the motive in his statement.
17.9) Hallahan alleged the accused said he had taken a gun when he walked back in the dark to the campsite of the Bowman party.
17.10) Hallahan’s statement says the accused told him: “I don’t know why I walked back.”
17.11) Hallahan: “Why did you take your rifle with you?” The accused: “I don’t know.”
17.12) Hallahan alleged the accused said he had shot “the young fellow”.
17.13) Hallahan had no details of the murders of the three people apart from the fact that a rifle had been used. His statement says that the accused said that after shooting the young fellow “I must have blacked out. I came to beside the car on the other side of the road and I saw that they were all dead.”
17.14) Hallahan included much detail about the alleged movements of the accused on the night of the 5th and morning of the 6th but he was presumably unaware that the victims’ two dogs, which had been tied to a tree, had been shot and killed. He makes no mention of this in his statement or record of interview with the accused.
18) PUTTING WORDS INTO THE ACCUSED”S MOUTH
18.1) In addition to the prosecution case contradicting the alleged confession, there are further pointers to police putting words into the accused’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 (R v Stuart 1959; Royal Commission in regard to Rupert Max Stuart 1959
Documentation: transcript R v Bailey 1958, transcript of R v Stuart 1959 and Royal Commission in regard to Rupert Max Stuart 1959).
Effect: The Stuart case took place after the Sundown Murders case but is relevant in considering the evidence against the accused in R v Bailey 1958.
18.2) The commission reported: “We have no doubt that the petitioner had more help with the wording of the written confession than Jones was prepared to admit.” Jones was one of the officers who conducted the interrogation of Stuart.
18.3) There are pointers to the accused in the Sundown Murders case having been “helped” with the wording of his alleged confession.
18.4) In his statement Detective Hallahan said he asked the accused about the accused’s caravan: “What colour is it?”
18.5) Hallahan’s statement alleges the accused 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 the accused’s response.
18.6) When Detective Hallahan interviewed the accused on January 21, Hallahan said in his statement the accused 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 the accused is reported as saying: “A girl aged about 14 was there and she stayed at the camp fire.”
19) OUTRIGHT FABRICATION
19.1) This petition has demonstrated why the accused should not have been found guilty of the charge of murdering Thyra Bowman.
19.2) Using sworn testimony and contemporaneous newspaper articles it is possible to analyse some aspects of how three detectives concocted a confession.
Documentation: Trial transcript.
Effect: Reinforces the fact that the confession should not have been believed.
19.3) There is an obvious and incontrovertible fabrication in Detective Hallahan’s sworn statement of what the accused allegedly told him while being interviewed.
19.4) In December newspapers had published information about a broken rifle having been found with the bodies. Typical was The Advertiser of December 16: “The rifle’s wooden stock was broken off, probably with the force of the blows with which the murderer killed Wendy Bowman.”
19.5) Hallahan obviously did not realise the broken gun, a Remington, had belonged to the travelling party. No direct evidence, apart from the alleged confession, was produced at the trial that the accused had possessed a rifle at the time of the murders.
19.6) The prosecution alleged the accused had been in possession of a Huntsman rifle.
19.7) So this alleged quote from the accused in Hallahan’s version of the first alleged confession is obviously a total fabrication: “I had a look in their car and I saw my rifle on the front seat. The wooden part of it was broken and it was covered in blood.”
19.8) In Hallahan’s second version of the confession the accused is supposed to have said: “My rifle was in the front seat of the car and I saw that the wood was broken and covered with blood and I realised that I must have killed the others too.”
19.9) The question arises: how much of the rest of the confession was fabricated?
19.10) Hallahan’s statement alleges the accused had told him that when he and his wife camped near the murder spot: “After we left them that night I went further down the road and stopped the car. We camped there that night. We had tea and after tea I got a guts ache and I went outside and had a couple of shits.”
19.11) In a record of an interview with the accused Detective Hopkins, who had inspected the murder scene, told the accused: “There was a spaghetti tin found near where you had your car and caravan parked also.”
19.12) In the final version of the alleged confession, compiled by Hopkins and Moran, the words attributed to the accused are: “We had tea there. I think it was spaghetti and a cup of tea.”
19.13) In the alleged confession there is a puzzling reference to the accused saying that on the morning after the murders: “One of the dogs bit me on the left wrist. I then shot them. I didn’t use a shovel on them though.”
19.14) There is no other reference in the trial to a shovel and no suggestion of anyone having accused the accused of having used a shovel to attack the dogs.
19.15) But in the mass of newspaper articles shortly after the murders, The Advertiser of December 17 1957 reported: “A theory has been advanced that the murder may have taken place after a large savage black and white kangaroo dog owned by Mrs Bowman and her daughter Wendy bit a stranger when he approached the spot where they were camping. The theory is that the stranger hit the dog with a shovel which the victims had used to dig a hole for grilling meat, Territory style, over fire coals.”
19.16) The alleged quote about shooting the dogs on the morning after the murders provides a second conundrum.
19.17) The problem is that Hallahan’s version of the alleged confession says the rifle had been broken the previous evening.
19.18) An attempt to remedy this mistake was made in the Hopkins/Moran version of the confession when the accused is alleged to have said that when he threw away the gun: “The stock was cracked but it is not in two pieces.” (see also 20.3)
19.19) John Llewellyn Warne, the managing director of Sporting Arms Ltd, provided a statement saying he had been asked to attend the police ballistics section in Adelaide where he inspected photographs of cartridge cases with an imprint of a firing pin the same as that made by a Huntsman single-shot rifle.
19.20) Police were anxious to link the accused to the murder weapon, whatever that may have been.
19.21) A rifle with a broken stock had been found with the bodies.
19.22) Detective Hallahan had mistakenly assumed that the broken rifle had belonged to the accused and that it had been a Huntsman.
19.23) But evidence was produced at the trial that the broken rifle had been a Sportsman belonging to the Bowmans.
19.24) On the basis that the accused’s alleged confession referred to a broken Huntsman which he had thrown away just south of Alice Springs police had repeatedly told media that the accused would be taken to that area to take part in a search for such a rifle.
19.25) The accused was not taken to the area.
19.26) There was no evidence at the trial that any search had been made.
19.27) No rifle said to have been the murder weapon was produced at the trial.
19.28) Mr Warne testified that when he was shown the photographs at the police ballistics section: “I was also shown a partly mutilated .22 calibre Huntsman rifle…”
19.29) A question arises: “What possible reason could police have had for producing a “partly mutilated .22 calibre Huntsman rifle”?
19.30) The Garrett study of 38 people who had signed confessions but then been exonerated found: “…police may have inadvertently suggested mistaken facts due to their incomplete knowledge about the crime scene evidence, which turned out to be inaccurate based on later information in the case. These mistakes provide insight into the limitations of officers’ abilities to construct a confession narrative, particularly with a suspect who may have no knowledge of the crime.” (Garrett, ibid)
20) SHORING UP THE CASE
20.1) Events after the confession was obtained and before the committal proceedings suggest there was an urgent realisation that the prosecution case needed shoring up.
Documentation: trial transcript.
Effect: Further evidence of the shortcomings of the police evidence.
20.2) On January 31 1958 mistakes in the confession (in addition to those identified earlier in this petition) led to Detective Moran interviewing the accused again. The alleged blackout is used in the alleged answers from the accused to explain discrepancies.
20.3) Moran and Hopkins would have realised in the typing of the final alleged confession that Hallahan had been completely mistaken in assigning the broken rifle (the Remington) to the accused’s ownership.
20.4) in removing this sequence from the final alleged confession all references to the Remington, linked in the pathologist’s report to the fracturing of Whelan’s skull, had been removed. This was a crucial omission.
20.5) On January 31 he was asked specifically about the Remington. He is recorded as saying: “It doesn’t belong to me.…And I don’t remember seeing any gun except the one I had.”
20.6) It was put to the accused: “Whelan was shot three times, Mrs Bowman was shot twice and Wendy Bowman was shot once, and all victims had been battered about the head.”
20.6) To which the accused was supposed to have responded: “I can only remember shooting them once as I told you before, and the only one I remember hitting with my rifle was the young girl when she came at me. But as I told you after I had shot them once I just went mad, and if they have been shot more than once and battered I suppose I must have done it, but I don’t remember doing it.”
20.7) More evidence was sought. In February 1958 possible witnesses were taken to an Adelaide police yard and shown the DeSoto car and caravan.
20.8) At the committal prosecution counsel was adamant in his opening address: “Next morning at about 10am Mr Wilkinson the storekeeper at Kulgera, saw a dark-coloured car and caravan which pulled up for petrol.”
20.9) But by the trial he was reduced to saying: “On December 6, a Kulgera storekeeper, Wilkinson, had a vague recollection of a car resembling Bailey’s passing through.”
20.10) Even worse for the prosecution, at the trial Mr Wilkinson looked directly at the accused in the dock and said: “I have never seen this man before this court case.”
20.11) 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.
20.12) And in a last-minute creation of new evidence on the last working day before the committal Detective Hallahan typed for the first time a statement saying he had been present when the accused had allegedly confessed to his father-in-law.
21) WAS THIS “THE BIGGEST FRAME-UP IN AUSTRALIAN HISTORY”?
21.1) Prosecution counsel told the jury in his summing up at the trial: “If you think the police have made up the biggest frame-up in Australian history you should find him not guilty.”
Documentation: trial transcript.
Effect: This petition has demonstrated the alleged confession Detective Hallahan was involved in fabricating does not stand up to scrutiny and, therefore, the jury should have done what prosecution counsel demanded.
This petition puts that same question forward.
22) SOLICITOR-GENERAL: NO CASE WITHOUT THE CONFESSION
22.1) South Australia Crown Solicitor Roderic Chamberlain QC told the Court of Criminal Appeals the case against the accused would have failed without the alleged confession.
22.2) He regarded Hallahan’s statement as so crucial to the case that at the trial he took personal charge of the prosecution when defence counsel applied to have the confession ruled inadmissible. As soon as the decision to admit the confession was made, Chamberlain handed the case to E B Scarfe QC..
22.3) At the appeal hearing defence counsel, A L Pickering QC, argued the evidence provided by Hallahan was not obtained voluntarily, was unfair and had been obtained after a late caution.
22.4) Chamberlain QC once again decided to head the prosecution case and responded that 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.”
Documentation: Court of Appeals transcript
Effect: This petition has shown sufficient evidence to show the alleged confession should have been rejected for the reasons stated and agrees that if the police had followed the suggested “proper” behaviour the accused should have been released.
23) CONCLUSION
23.1) The petitioners submit that the evidence supplied in this document is reliable and compelling in that there was a substantial miscarriage of justice in this case and that, therefore, it is in the interests of justice for a posthumous pardon to be granted and the conviction quashed.
Researched and presented by Stephen Anthony Bishop, PO Box 521, The Gap, Queensland, 4061.
Signed by:
Stephen Anthony Bishop
Lola Jean Bateup, a sister of Raymond John Bailey, of Kalana Road, Aroona, Queensland 4551.
The Hon Mike Ahern AO, former National Party Premier of Queensland,
Shelly Beach, Caloundra, Queensland, 4551.
The Hon Rod Welford, former Attorney General and Minister for Justice, Queensland
Fortitude Valley, Brisbane, Queensland 4006 11 November 2021
Robert N Moles ACII (UK) LLB (Hons) (Belf) PhD (Edin)
Dr Moles is one of Australia’s leading academics on the issue of wrongful convictions. He (along with his joint authors) has published: Forensic Investigations and Miscarriages of Justice, Irwin Law, Toronto, 2010;
Miscarriages of Justice: Criminal Appeals and the Rule of Law, LexisNexis, Sydney, 2015;
He, along with other colleagues, helped to establish a new right of appeal in criminal cases in South Australia, Tasmania and Victoria, with similar developments taking place in Western Australia and the ACT;
He has developed a leading web site on miscarriages of justice – Networked Knowledge;
He has been involved in over 150 television and radio programs on these issues, and
published a substantial number of academic and media articles.
John Shobbrook, Redcliffe, Queensland
As a former senior investigator with the Federal Bureau of Narcotics I have read and analysed the petition and am of the firm opinion that the key role played by Queensland detective Glen Patrick Hallahan in the prosecution of Bailey has led to a grave miscarriage of justice having been committed against Bailey and that the petition on his behalf should receive a favourable recommendation.
My credentials include graduation from the Australian Capital Territory Police Detective Training Course, the Victoria Police Detective Training School, the Customs Investigator Techniques Course, the Intelligence Surveillance and Undercover Course run by the Australian Secret Intelligence Service (ASIS), the United States Department of Justice, Southeast Asian Drug Traffic Seminar, the United States Department of Justice, Criminal Information Research School and the United States Department of Justice, Drug Enforcement Conspiracy Training Seminar.
I have had extensive experience in the examination of criminal law, evidence, brief preparation, practice and procedure. Former Queensland Premier Mike Ahern assessed my career in these terms:
“John, it is important that you realise that in your professional career you did your job well. You did not flinch when you ran into the “heinous mob”. That was a tough call, but you did your job courageously and well. Your effort, joined with others, led to a better policing outcome for Australians. Well done!”
In addition to my experience in preparing evidence for trials I have personal experience of Glen Patrick Hallahan (the principal witness in the case against Raymond John Bailey). I have witnessed Hallahan repeatedly lying as he gave evidence under oath at the Australian Royal Commission of Inquiry into Drugs. I am also aware that Glen Hallahan has been involved in criminal wrongdoing since the early 1960’s, he has been charged with several serious offences and twice suspended from the Queensland Police Force.
Between January 1979 and March 1980, I held the rank of deputy Regional Commander for the Federal Bureau of Narcotics for Queensland and the Northern Territory. At that time I led a two-year investigation into Hallahan’s involvement in the importation into Australia of heroin worth millions of dollars.
During my investigation of Hallahan, bank receipts were found confirming he had received into his bank account in excess of $110,000.00 from convicted heroin trafficker John Edward Milligan.
Milligan’s tape-recorded answers to my questions about the importation and other matters led to the Royal Commission extending its hearings during which time Hallahan gave false evidence under oath.
I am therefore of the firm opinion that uncorroborated statements by Hallahan cannot be relied upon and consequently the petition should succeed.
Bruce Milne OAM, Ballarat, Victoria
I am a first cousin once removed of Thyra Bowman, one of the victims of the Sundown Murders.
My father grew up with Thyra as a neighbour for some years in Adelaide. He knew her family well. Amongst my close acquaintances my parents were the most affected by the horror of the Sundown Murders, having personally known and loved the victims and their families.
I have forensically studied the evidence presented in the prosecution of Raymond John Bailey for the murder of my first cousin and believe Bailey was wrongly convicted. I have written a book to share the drama and injustice amongst family and friends.
It’s time to right a wrong.
The flimsy extent of circumstantial evidence amounts to Raymond Bailey travelling past the crime scene on the day of the murders along with the drivers of other vehicles who were never traced.
The evidence was riddled with holes - no fingerprints, no murder weapon, unreliable witness statements, shoddy police procedures at the crime scene and an incompetent defence counsel.
The court process was flawed and the evidence weak - much of it clearly manipulated and planted by corrupt law officers and the legal fraternity.
The jury had a right to have faith in the police being honest and the defence team being competent, but this was not the case.
I strongly support the petition for a posthumous pardon.
Explanatory note:
I, Stephen Anthony Bishop, an investigative journalist, spent a week in Adelaide studying the transcripts of the committal, trial and appeal of Raymond John Bailey.
The reason for conducting this research was that I had spent many years researching and exposing endemic corruption in Queensland for the 30 years between 1957 and 1987.
Foremost among the corrupt police running the corruption and organised criminal activities was Glen Patrick Hallahan, the detective who was the principal prosecution witness in the Bailey trial.
I wrote and published a book in 2012 titled "The Most Dangerous Detective" focusing on Hallahan's criminality.
The miscarriage of justice in the Bailey case was so outrageous that I lodged a petition for a posthumous appeal. It was refused in 2013 with no explanation as to why.
This new petition contains many more reasons why a pardon should be granted than were contained in the first petition.