Submission of Warren Howell, BA, LLB (UQ), LlM ( Lon).
Barrister-at-Law Queensland 23 Nov 1965, Barrister & Solicitor TPNG 1968, Barrister-at-Law NSW 1983.
Member Honourable Society of Gray's Inn 3 March, 1971.
Magistrate Hong Kong 1972-73.
Queensland Bar Board Examiner (Old Rules), all 15 subjects 1974-77.
District Court Judge Queensland 26 July 1984--30 May 2009 (compulsory retirement at age 70).
Chairman Mental Health Act Patient Review Tribunal 1988-89.
I have read the April petition to the South Australian Governor seeking a posthumous pardon for Raymond John Bailey, found guilty at Adelaide Supreme Court in May 1958 of murder and hanged in June 1958; the May addendum to that petition; and excerpts taken from the 1958 diary of defence counsel Arthur Pickering QC.
As a result I submit:
Bailey was denied a fair trial because of the incompetence/negligence of defence counsel.
Defence counsel was incompetent/negligent in not cross-examining on the significant differences between the established facts of the killings and the contents of the confession, and internal inconsistencies in the established facts at the locus in quo.
Defence counsel was incompetent/negligent in not cross-examining on threats causing the false confession, in accordance with Bailey's unsworn statement from the dock, which further would have avoided the possibility of rebuttal evidence with its significant prejudicial effect.
Defence counsel was incompetent/negligent in not calling evidence including expert evidence on the said two topics.
Defence counsel was incompetent/negligent in his tactical overemphasising of the failure to warn, thereby attenuating much stronger points.
Defence counsel was incompetent/negligent in not giving real and appropriate emphasis in cross-examination and calling of evidence on the vulnerable state of the accused in the making of the confession.
Defence counsel was incompetent/negligent in not highlighting in cross-examination (and possibly in calling evidence) of the matters strongly in Bailey's favour of his not being the killer on the physical evidence at the scene.
Defence counsel was incompetent/negligent in not calling Bailey's father-in-law to give evidence. Alternatively he should have strongly submitted for an adjournment until the father-in-law could give evidence.
Crown counsel breached his duty in not calling Bailey's father-in-law, alleged to be a crucial witness in possession of direct evidence. Alternatively, Crown counsel should have asked for an adjournment until the father-in-law was available to give evidence.
Different counsel other than Pickering QC should have argued the appeal to pursue the argument that Bailey was denied a fair trial by virtue of the incompetence/negligence of Pickering QC on the grounds detailed above.
The verdict of guilt is against the evidence and the weight of the evidence. It would be unsafe, unsatisfactory and dangerous in the administration of justice for a verdict of guilt to stand.
I had a virtually exclusive Criminal Practice at the Queensland Bar (70% defending and 30% prosecuting) from November 27 1965 to July 25 1984.
At the Bar, one was only too aware of Detective Hallahan's reputation for corruption, dishonesty and involvement in serious crime. I cross-examined him on a number of occasions. I am hamstrung in my detailed criticisms of Detective Hallahan in referring to information from clients on serious charges because of limitations imposed by legal professional privilege.
Barrister-at-Law Queensland 23 Nov 1965, Barrister & Solicitor TPNG 1968, Barrister-at-Law NSW 1983.
Member Honourable Society of Gray's Inn 3 March, 1971.
Magistrate Hong Kong 1972-73.
Queensland Bar Board Examiner (Old Rules), all 15 subjects 1974-77.
District Court Judge Queensland 26 July 1984--30 May 2009 (compulsory retirement at age 70).
Chairman Mental Health Act Patient Review Tribunal 1988-89.
I have read the April petition to the South Australian Governor seeking a posthumous pardon for Raymond John Bailey, found guilty at Adelaide Supreme Court in May 1958 of murder and hanged in June 1958; the May addendum to that petition; and excerpts taken from the 1958 diary of defence counsel Arthur Pickering QC.
As a result I submit:
Bailey was denied a fair trial because of the incompetence/negligence of defence counsel.
Defence counsel was incompetent/negligent in not cross-examining on the significant differences between the established facts of the killings and the contents of the confession, and internal inconsistencies in the established facts at the locus in quo.
Defence counsel was incompetent/negligent in not cross-examining on threats causing the false confession, in accordance with Bailey's unsworn statement from the dock, which further would have avoided the possibility of rebuttal evidence with its significant prejudicial effect.
Defence counsel was incompetent/negligent in not calling evidence including expert evidence on the said two topics.
Defence counsel was incompetent/negligent in his tactical overemphasising of the failure to warn, thereby attenuating much stronger points.
Defence counsel was incompetent/negligent in not giving real and appropriate emphasis in cross-examination and calling of evidence on the vulnerable state of the accused in the making of the confession.
Defence counsel was incompetent/negligent in not highlighting in cross-examination (and possibly in calling evidence) of the matters strongly in Bailey's favour of his not being the killer on the physical evidence at the scene.
Defence counsel was incompetent/negligent in not calling Bailey's father-in-law to give evidence. Alternatively he should have strongly submitted for an adjournment until the father-in-law could give evidence.
Crown counsel breached his duty in not calling Bailey's father-in-law, alleged to be a crucial witness in possession of direct evidence. Alternatively, Crown counsel should have asked for an adjournment until the father-in-law was available to give evidence.
Different counsel other than Pickering QC should have argued the appeal to pursue the argument that Bailey was denied a fair trial by virtue of the incompetence/negligence of Pickering QC on the grounds detailed above.
The verdict of guilt is against the evidence and the weight of the evidence. It would be unsafe, unsatisfactory and dangerous in the administration of justice for a verdict of guilt to stand.
I had a virtually exclusive Criminal Practice at the Queensland Bar (70% defending and 30% prosecuting) from November 27 1965 to July 25 1984.
At the Bar, one was only too aware of Detective Hallahan's reputation for corruption, dishonesty and involvement in serious crime. I cross-examined him on a number of occasions. I am hamstrung in my detailed criticisms of Detective Hallahan in referring to information from clients on serious charges because of limitations imposed by legal professional privilege.