THIRD ATTEMPT TO OVERTURN GROSS MISCARRIAGE OF JUSTICE - The Defence Counsel Who Told The Jury His Client Was Guilty
May 18 2023
Dear Attorney-General ,
Application for a referral to the Court of Appeal – Raymond John Bailey
New analysis of R v Bailey 1958 reveals Raymond John Bailey did not receive a fair trial due to gross incompetence by defence counsel Arthur Pickering QC, causing a substantial miscarriage of justice.
Foremost among many examples of gross incompetence by Pickering is the fact he ignored Bailey's plea and statement that he was not guilty of the charge of murder and told the jury his client was guilty, despite evidence Bailey could not have been the murderer.
In view of the number of very troubling aspects of R v Bailey, I am respectfully asking that the matter be referred to the Court of Appeal for a judicial determination as to whether the conviction should stand. It is appreciated that Bailey was hanged in 1958 but I hope you will agree that for the sake of his 89-year-old sister and other family members, justice should not have a time limit. If a person has been wrongly convicted, particularly for a capital crime, the decision should be corrected.
FACTS
Thyra Bowman, aged 43, her daughter Wendy, 14, and family friend Thomas Whelan, 22, were murdered on or about December 5 1957 in remote bushland on the abandoned Sundown Station, Northern Territory, while camping.
Bailey was arrested by Queensland detective Glen Hallahan in Mt Isa, north-west Queensland, on January 21 1958 and charged with the murder of Thyra Bowman after Adelaide police had announced his car was the subject of a nationwide search.
He was found guilty at Adelaide Supreme Court on May 20 1958 by a jury which deliberated for only an hour and 28 minutes and he was hanged on June 24 1958.
SUMMARY OF PICKERING QC'S GROSS INCOMPETENCE
In addition to telling the jury in R v Bailey that his client was guilty, Pickering also:
Failed to cross-examine witnesses on the basis that the description of the killings in the alleged confession, which was the prosecution's only direct evidence, was completely contradicted by the facts.
Failed to establish Bailey could not have been guilty because his shoe size did not match footprints left by the murderer at the murder scene.
Failed to cross-examine prosecution evidence that a woman had driven a car to dispose of the bodies despite Bailey's statement that his wife did not know how to drive - meaning Bailey could not have been the murderer.
Told the court "There is no ground to suggest there was any threat or promise” in obtaining the alleged confession tendered to the court, thus contradicting Bailey's statement that police had threatened to keep questioning his wife until he confessed and had promised to leave her alone if he signed.
Failed to focus the jury's attention on the mis-identification in the alleged confession of a rifle used in the murders.
Having accepted police allegations that Bailey had confessed, he relied at trial and on appeal on the narrow ground that, according to Detective Hallahan, Bailey was not warned about his right to silence until after having made an alleged confession - and failed to cross-examine or make an appeal submission that the reason the confession was factually incorrect was that it had been fabricated.
These and other examples of Pickering's incompetence are in addition to other disturbing features of the case which are enumerated in this application.
CONTENTS
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1. Pickering QC contradicted Bailey's plea and statement that he was not guilty
2. Pickering failed to demolish the only direct evidence, despite it not fitting the facts
3. Pickering failed to make any reference to the fact Bailey could not have been the murderer
4. Pickering failed to exploit another major contradiction in the prosecution case
5. Pickering wrongly told the jury police had made no "threat or promise” to Bailey
6. Pickering failed to challenge another major contradiction
7. Pickering failed to explore the farce of the "wrong rifle"
8. Pickering failed to highlight there had been no attempt to find the "smoking" gun
9. Pickering failed to tackle a prosecution allegation that was not substantiated
10. Pickering failed to exploit "fortuitous discoveries"
11. Pickering failed to ask questions about a mutilated Huntsman rifle
12. Pickering failed to obtain a detailed understanding of the case
13. Pickering failed to give consideration to evidence likely to be required
14. One aspect of Pickering's incompetence was obvious to the appeal court
15. Detective Glen Hallahan was not of good character
16. The jury was not warned about the lack of corroboration
17. The prosecution invented a motive for the murders with no supporting evidence
18. A substantial miscarriage of justice
LACK OF A FAIR TRIAL
1. Pickering QC contradicted Bailey's plea and statement that he was not guilty by telling the jury his client was guilty
1.1 Raymond John Bailey was charged with the murder of Thyra Bowman at Sundown Station in the Northern Territory on December 5, 1957. The trial took place at Adelaide's Supreme Court in May 1958.
1.2 In his statement to the court Raymond John Bailey said: "I did not kill any of these people and I am not guilty of this charge." Indeed, he pleaded not guilty.
1.3 Pickering contradicted his client by telling the jury Bailey had confessed to the murder, saying of his interrogation by Detective Glen Hallahan: "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.”
1.4 The "deadly admission" was an allegation by Detective Hallahan that Bailey had told him: "I shot the young chap but I want to tell you how it happened.”
1.5 Not only did Pickering contradict his client's statement that he did not kill anyone, he was telling the jury that his client was guilty despite evidence that Bailey could not have been the murderer (see headings 3 and 4).
1.6 Pickering made it clear he believed Detective Hallahan's statement and evidence that Bailey had confessed to the murder rather than his client's protestations of innocence and the fact that Bailey's shoe size did not match the murderer's footprints found at the scene of the crime.
1.7 This is despite the fact that Hallahan's statement, alleged confession and evidence contained many demonstrable contradictions and falsifications, as did the statements and evidence of Detectives Moran and Hopkins.
1.8 As early as February 25 and 28 1958, during Bailey's committal, Pickering had formed his opinion that Bailey was guilty, referring in his daily diary notes to "the confession" as a fact. (The diary is owned by Pickering's grandson, Michael Becker of Hawthorndene, South Australia, 5051.)
1.9 In a paper delivered in 2009 entitled The Profession of Barrister - Service, Duty and Independence, the Hon Justice Kiefel referred to a rule which prohibits the making of submissions or the expression of views which "convey or appear to convey the barrister's personal opinion on the merits of that evidence or issue".
1.10 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.
1.11 CONCLUSION: It is clear that Pickering's submission conveyed his personal opinion that Detective Hallahan's claims were true and that his client was lying when he said that he was innocent.
2. Pickering failed to demolish the only direct evidence despite it not fitting the facts
2.1 In his opening statement at the trial, prosecuting counsel Eb Scarfe QC told the jury the only direct evidence against Bailey was the alleged confession and a statement by Bailey's father--in-law which was never tendered.
2.2 Crown Solicitor Rodric Chamberlain QC regarded the alleged confession as so pivotal to the case that he took personal charge of the prosecution when Pickering applied to have the alleged confession ruled inadmissible. As soon as the decision to admit it was made, Chamberlain handed the case to Scarfe.
2.3 Pickering argued the evidence provided by Detective Hallahan was not obtained voluntarily, was unfair and had been obtained only after a late caution. Chamberlain said it would have been calamitous if police had been prevented from such questioning. “If they have to do what Mr Pickering is suggesting is proper, they would have had to release Bailey…The murder would have been left unsolved but a suspicion would have been left against members of the Bowman family.”
2.4. In summary, the prosecution admitted that the only direct evidence was the alleged confession by Bailey to police. (A claim by the prosecution that Bailey had confessed to his father-in-law was never advanced - see item 9.)
2.5 This made it crucial for Pickering to dismantle the confession piece by piece but he failed to identify and demolish the easily identifiable contradictions in it.
2.6 It should have been obvious to the man on Adelaide's Clapham omnibus, let alone a barrister, that the account of the killings in the alleged confession did not match the facts given in evidence by the prosecution.
2.7 Hallahan's alleged confession has Bailey saying the three people were sleeping on the ground at the camp site when he approached in the dark: "I was about 12 feet away from them and a dog jumped out and barked. I fired a shot at it. When I fired the shot the young fellow jumped up off the ground and screamed and fell over and I knew that I had shot him."
2.8 But a post mortem by Dr John Dwyer found Whelan had been shot twice in the back as well as being shot through the back of his head - all at close range.
2.9 Pickering failed to cross-examine Dr Dwyer, or Detectives Hallahan, Hopkins and Moran about this contradiction with the alleged confession.
2.10 Alleged confession: "I loaded my rifle again and aimed it at the older woman who was rushing towards me and fired. She fell down straight away."
2.11 But the postmortem found she had not been killed in this way but had been shot in the back of the neck with the bullet passing through the roof of the mouth and into the brain.
2.12 Pickering failed to cross-examine Dr Dwyer, or Detectives Hallahan, Hopkins and Moran about this contradiction with the alleged confession.
2.13 Alleged confession: "The young girl rushed at me too, so I loaded again, aimed it and shot her. She fell down too."
2.14 But the pathologist reported: “The only position I can envisage is that she was lying on the ground with the right side of the head downwards when she was shot through the head.”
2.15 Pickering failed to cross-examine Dr Dwyer, or Detectives Hallahan, Hopkins and Moran about this contradiction with the alleged confession.
2.16 Alleged confession: "I was only about three yards from them. I shot from the waist."
2.17 But the post mortem found all three had been shot at close range.
2.18 Pickering failed to cross-examine Dr Dwyer, or Detectives Hallahan, Hopkins and Moran about this contradiction with the alleged confession.
2,19 The alleged confession has Bailey saying he put three corpses in the victims' car and drove them into the scrub where he laid them under a tarpaulin.
2.20 Wrong again! All three were found to have been alive when moved from the campsite.
2.21 Pickering failed to cross-examine Dr Dwyer, or Detectives Hallahan, Hopkins and Moran about this contradiction with the alleged confession.
2.22 The descriptions of the shootings were completely wrong. The killer had fractured the victims' skulls at the camp site which had resulted in extensive bleeding on the ground when they were dumped more than a kilometre away.
2.23 Pickering failed to cross-examine Dr Dwyer, or Detectives Hallahan, Hopkins and Moran about this contradiction with the alleged confession.
2.24 Even the prosecution demolished Hallahan's creation of a confession, with prosecuting counsel telling the jury: “Dr Dwyer will tell you that the skulls of all three victims were bashed in before they were shot.”
2.25 The bullets that killed them were not fired at the camp site as described in the alleged confession.
2.26 Pickering failed to question pathologist Dr Dwyer or any of the detectives about these comprehensive discrepancies and point out that they contradicted the only direct evidence offered by the prosecution.
2.27 Had Pickering explored and emphasised the discrepancies he would have been in a position to advise the jury the prosecution case had failed and that it should find Bailey not guilty.
2.28 Pickering's complete failure to expose the alleged confession as a tissue of lies resulted in the judge using it to devastating effect in his summing up, telling the jury it could have no doubt about it.
2.29 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."
2.30 CONCLUSION: Pickering's failure to expose the alleged confession as contradicting the facts of all three murders resulted in the judge being able to tell the jury it could have "no doubt" about its veracity. Had Pickering succeeded, as he should have done, he would have been able to tell the jury that the prosecution itself had demonstrated the confession was not true and that Bailey should be found not guilty.
3. Pickering failed to make any reference to the fact, presented in evidence, Bailey could not have been the murderer
3.1) 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.
3.2) 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.
3.3 CONCLUSION: Pickering failed to cross-examine on this issue and failed to mention such an exculpatory fact in his closing address to the jury when he should have been able to emphasise: "Members of the jury, it has been demonstrated conclusively the defendant could not be the murderer."
4. Pickering failed to exploit another major contradiction in the prosecution case
4.1 Pickering failed to examine a major contradiction in the prosecution case. Several witnesses gave evidence that when the victims' car had been moved to its final position after the three bodies had been dumped in the bush, a woman's footprints had been found leading away from the car but none had been found approaching the car.
4.2 Prosecuting counsel Scarfe said there had been one set of female tracks going out to the road from the car but none had led in. "This indicated the car was driven to that position by a woman," he said.
4.3 But Bailey said in his statement: "Referring to the evidence about a woman’s tracks from the Vanguard, my wife is not able to drive a car."
4.4 In his summing up, Scarfe was dismissive: “There is only Bailey’s word as to his wife’s inability to drive a car.”
4.5 Scarfe's statement means the prosecution had failed to check if Mrs Bailey had a driving licence.
4.6 Pickering failed to provide evidence that Bailey's wife did not possess a driving licence or was unable to drive.
4.7 Pickering failed to put the question: if it was not Mrs Bailey who could it have been? And if it was not Bailey's wife it followed that, with no evidence that any other women had been seen in the vicinity or with Bailey, that Bailey was not the killer.
4.8 Pickering also failed to point out that this was yet another contradiction by the prosecution of its only direct evidence which had Bailey saying it was he who had driven the car to where it was found.
4.9 CONCLUSION: Pickering should have been in a position to tell the jury the fact that an unidentified women had driven the car from where the bodies had been dumped when Bailey's wife was unable to drive a car proved Bailey could not have been the murderer.
5. Pickering wrongly told the jury police had made no "threat or promise” to Bailey
5.1 Bailey recalled in his statement how he and his wife had both been questioned separately and at length at Mt Ia Police station on December 22 1957. He said in his statement: "During the morning I could hear my wife crying downstairs. I told them where I had been and what I had been doing but they just kept on questioning me and didn’t seem to believe me. By midday I was in such a state I didn’t know what I was saying. From then on I think I just answered the questions in the way I thought they wanted me to...
5.2 "After Hopkins and Moran arrived, which was about half past three, they questioned me until about 8 o’clock that night.
5.3 "Towards the end of their questioning they said to me 'They are still questioning your wife and you won’t be allowed to see her until you sign a confession and they won’t stop questioning her until you do'. They also said 'Do you love your wife?' I said 'I do'” and they said 'Well then, sign it and we will leave her alone'. By this time all I wanted was for them to stop questioning my wife and leave her alone. Moran typed out a statement and asked me to sign it and I signed it. They asked me to write the word 'Yes' after some questions at the end of it."
5.4 That account contains both a threat and a promise.
5.5 Pickering plainly misrepresented Bailey.
5.6 And Bailey said that the threat and promise worked: "The reason why I signed the confession was so that they would stop questioning my wife and leave us both alone."
5.7 It is now accepted that any interview will not be admitted if it was induced by a threat, promise or untrue representation made by the police or some person in authority. It is certainly a good reason why it should not have been admitted in 1958.
5.8 CONCLUSION: Pickering should have focussed on developing the position that threats and promises had been made during Bailey's interrogation and been able to tell the jury that this should have negated any result of the interrogation.
6. Pickering failed to challenge another major contradiction
6.1 Pickering failed to focus the jury's attention on the mis-identification in the alleged confession about a rifle used in the attack.
6.2 In examining the injuries suffered by Thomas Whelan, one of the three victims, the pathologist referred to a a broken, blood-splattered Remington Sportsmaster rifle found with the bodies and reported: “…the fractures on Whelan’s skull were consistent with having been caused by a blow from this rifle butt.”
6.3 In his statement Bailey said he had not possessed a rifle at the time of the murders.
6.4 But police alleged that Bailey had carried a Huntsman rifle. And Hallahan alleged Bailey had confessed that when he returned to the victims' car on the morning after the murders: “I saw my rifle on the front seat. The wooden part of it was broken and it was covered in blood.” (Emphasis added)
6.5 But it was the Remington rifle that was broken - and it had belonged to the victims, not Bailey.
6.6 Despite his client saying categorically he did not have a rifle, Pickering failed to cross-examine the detectives and ballistics expert Ivan Patterson about this glaring contradiction.
6.7 Tellingly, there is no mention anywhere in Hallahan's alleged confession that the victims possessed a rifle nor how Bailey not only accessed it but how and when he bludgeoned the victims unconscious with it.
6.8 Pickering failed to cross examine on this issue.
6.9 Pickering failed to ask how a passing stranger would have known the Bowman party possessed a rifle and known where to locate it in the dead of night in order to fracture three skulls.
6.10 Pickering failed to posit why Bailey would have risked waking the victims if, as police alleged, he was already carrying a rifle.
6.11 What is also missing from the story is a motive for going to a lonely campsite in the middle of the night while allegedly carrying a rifle.
6.12 Pickering failed to explore this issue.
6.13 He failed to address the fact that there was no explanation in the alleged confession of how Bailey was supposed to have come into possession of the victims’ Remington in the dark of night at the campsite, how he was supposed to have used it to bludgeon the victims, in which order and why, and why the unconscious bodies were moved to a new location where they were all shot at point blank range with another weapon.
6.14 He should have cross examined on the premise that the first thing the murderer did (according to the post mortems) was to obtain the Remington in order to bludgeon the victims.
6.15 Didn't such an action point to an attacker who knew the Bowman trio had a gun and that taking it while they slept would have been a means of preventing them from defending themselves? Pickering failed to explore this scenario.
6.16 The fact is that the murderer clubbed the victims unconscious with massive swings of the butt of their own rifle while they slept.
6.17 Pickering did point out that Bailey was small but failed to mention Bailey weighed a mere 9 stone 7 pounds (60 kilograms) and wore 5 1/2 shoes.
6.18 CONCLUSION: Pickering should have used all these pointers to add to the argument detailed in item 2.30 that the prosecution case did not stand up to scrutiny.
7. Pickering failed to explore the farce of the "wrong rifle"
7.1 The mis-identification of rifles remained in Hallahan's evidence at the trial.
7.2 Pickering failed to challenge it.
7.3 How did South Australian detectives Hopkins and Moran tackle this contradiction?
7.4 Hopkins testified that when he had arrived at the murder scene in December he had identified the blood-spatted, broken gun found with the bodies as a Remington.
7.5 But when Hopkins and Moran questioned Bailey after taking over the questioning from Hallahan they failed to ask him a single question about the Remington, according to their testimony.
7.6 Pickering failed to explore these issues.
7.7 Having avoided mentioning the Remington, Hopkins and Moran then removed all embarrassing mentions of it from the signed confession they alleged they had obtained.
7.8 And although the false account of the murders remained in the document which Moran and Hopkins presented to the jury, references to Bailey having seen his gun bloodied and broken in the victims' car had vanished.
7.9 Pickering failed to explore this issue.
7.10 This major contradiction may have disappeared from the signed document but it remained as a side issue in the record of interview.
7.11 Moran: We have had a conversation with your wife and she told us that...after you washed the car and returned to your car and caravan where she was waiting for you, this is Friday 6 December, you had a rifle in your hands which she recognised as being yours. You showed it to her and the stock was broken and there was blood spots on it." (Emphasis added)
7.12 Bailey: 'Yes. That is right.'
7.13 Pickering failed to point out this was yet another version of the broken rifle having been a Huntsman belonging to Bailey and not the victims' Remington.
7.14 The confusion was made worse by the Moran and Hopkins version of the alleged confession quoting Bailey as saying that on the morning after the killings he had used his supposedly broken gun to shoot two dogs and that when he threw away his gun the stock was only cracked and not broken.
7.15 Pickering failed to cross examine on this contradiction.
7.16 The prosecution had an alleged confession full of holes and no smoking gun.
7.17 But Pickering failed to explore these issues despite them being connected to the only direct evidence against Bailey.
7.18: CONCLUSION: Pickering should have used all these contradictions to add to the arguments (2.30 and 6.18) that the prosecution case did not stand up to scrutiny.
8. Pickering failed to highlight there had been no attempt to find the "smoking" gun
8.1 Where was the smoking gun - the Huntsman rifle which police alleged Bailey had said he used to shoot the victims?
8.2 Bailey said in his statement he didn't have a rifle with him at the time of the murders.
8.3 But the alleged confession had him throwing a Huntsman rifle away after the murders while driving near Alice Springs.
8.4 On January 23, 24, 25, 28, 29 and 30, while Bailey was still in Mount Isa, newspapers quoted police as saying it was their intention to take him back to the road south of Alice Springs to search for what police believed was the murder weapon.
8.5 Police even told newspapers that black trackers had been assembled ready for the search.
8.6 But Bailey was flown straight to Adelaide, was never taken to the area where an alleged murder weapon had supposedly been dumped and no search was ever undertaken.
8.7 Pickering failed to ask why Bailey was not taken to search for the alleged murder weapon and why no search had been made. He failed to ask why trackers had been assembled and why their services had been dispensed with.
8.8 The only direct evidence the police had was an alleged confession which they must have realised could be easily demolished, Finding the murder weapon would have been a damning exhibit.
8.9 A reasonable question for Pickering to have put was: could the reason for there having been no search was that the confession was a fabrication and, therefore, it would have been absolutely pointless?
8.10 CONCLUSION: He certainly could have pointed out to the jury that the decision not to search for the murder weapon, which would have been indisputable direct evidence, was yet another example of a flawed investigation that could not be trusted.
9. Pickering failed to tackle a prosecution allegation that was not substantiated
9.1 On the last working day before Bailey's committal was due to start in February 1958 Detective Hallahan typed a statement in which he alleged there had been a conversation between Bailey and his father-in-law, David Hudson, nearly four weeks earlier on January 25 at which he had been present.
9.2 Hallahan's statement included an alleged verbatim exchange of about 180 words between Bailey and Hudson in which Bailey had confessed he had killed the three people. It was read into the evidence at the committal by Hallahan.
9.3 In cross-examination he admitted he had "made no notes concerning the conversation of Saturday 25th January" before typing the statement on February 21.
9.4 Quite a feat to remember a conversation, word-for-word - four weeks later!
9.5 At the trial prosecuting counsel Scarfe, in opening the case, said: The Crown case, that Mrs Bowman was murdered by Bailey, is composed of two branches, circumstantial and a confession by Bailey that he killed all three.”
9.6 After mentioning the circumstantial evidence Scarfe said: "The second branch was what Bailey said to Detective Hallahan of the Queensland Police, and to Detectives Moran and Hopkins of South Australia, and to his own father-in-law."
9.7 In short, the prosecution told the jury the Hudson testimony would form part of the only direct evidence it had against Bailey.
9.8 The appeal court regarded the alleged Bailey-Hudson exchange as so important that it recorded the entirety of it as a fact in its rejection of the appeal (thus raising a doubt about the fairness of the appeal process).
9.9 But despite the importance placed on the alleged conversation, the prosecution did not call Hudson to testify.
9.10 Bailey was adamant in his statement to the court: "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."
9.11 It was not revealed who had told Bailey that Hudson was too ill to attend. No medical certificate was mentioned in evidence.
9.12 The prosecution duty to present its case fairly includes the calling of all relevant witnesses.
9.13 Pickering should have complained long and loud that the jury may well have been influenced by Scarfe's assertion that Bailey had confessed to his father-in-law even though Hudson was not called to testify. He should have told the jury it was possible that Hudson had not been called because his testimony would not support the allegation made by the prosecution and it should not be influenced by the unsupported allegation.
9.14 Indeed, a year after the Bailey case, a legal precedent called "the Jones v Dunkel rule" was established, so that if the prosecution is expected to call a witness and does not do so, the jury can infer that the witness would not have provided any evidence that would have assisted the prosecution’s case and it should entertain a reasonable doubt about the guilt of the accused.
9.15 If Hallahan’s claim had been true it was fundamental police practice to obtain a written statement from Hudson as to what Bailey had said as soon as possible, given the extreme importance of his evidence as someone who was able to give sworn evidence of admissions of guilt.
9.16 Pickering failed to explore Hallahan's claim and to ask why he had not written or typed such a statement immediately if it was true, especially as the alleged conversation would have been of major importance to the prosecution case.
9.17 Pickering was entitled to ask if this was yet another fabrication by Hallahan.
9.18 Pickering failed to call Hudson in order to refute the allegation that Bailey had confessed.
9.19 CONCLUSION: Calling Hudson could have destroyed the credibility of the main prosecution witness but Pickering failed to make any capital from the issue and did not call for the reference to Hudson to be ignored by the jury.
10, Pickering failed to exploit "fortuitous discoveries"
10.1 Police sought to link Bailey to a Huntsman rifle they alleged he had possessed.
10.2 Hallahan searched Bailey's car and caravan on January 21. There is a photograph on the front page of the Adelaide News for Saturday January 25 of a Detective Pfingst searching the car.
10.3 Detective Moran said that when he searched the car on January 22 there was quite a lot of junk and: " We took it out into the open and then returned it to the car."
10.4 Hallahan swore: "The car and caravan were both carefully searched."
10.5 How fortuitous, then, that ballistics expert Ivan Patterson was able to report that after those earlier searches and a fortnight after Bailey's arrest: “I searched the DeSoto sedan car…and I found under the floor mat on the right-hand side of the front compartment…a .22 calibre ICI high-velocity long or long-rifle cartridge case.”
10.6 He said it had been fired from a Huntsman, the type of gun police had sought to link to Bailey.
10.7 Pickering failed to cross-examine on how it could have been that neither Bailey when he was driving the car nor any of the other police who had searched the car had noticed a lump under the driver's mat where Bailey's feet would have moved backwards and forwards for many hours while driving.
10.8 Pickering failed to ask why a murderer - said by Scarfe to be "very cunning" - would have placed an incriminating cartridge case under the mat?
10.9 The caravan had been searched by the police since January 21, yet on February 14 - a further 10 days after the discovery under the car mat, Patterson was able to find another cartridge case in a small cupboard in the caravan – and identify it as having been fired by the same Huntsman.
10.10 Pickering failed to ask why someone who was "very cunning" would pick up two incriminating spent cartridge cases from the murder scene and put one in his car and another in his caravan while leaving three behind in easily discoverable circumstances. And why would he keep the two cartridge cases rather than throw them away at the first opportunity?
10.11 CONCLUSION: This was yet another lost opportunity to add to the doubts about the prosecution case.
11, Pickering failed to ask questions about a mutilated Huntsman rifle
11.1 There was a strange reference to a mutilated Huntsman rifle in a statement admitted in evidence.
11.2 Hallahan's allegations had included Bailey throwing away a damaged Huntsman south of Alice Springs.
11.3 John Llewellyn Warne, managing director of the company producing Huntsman rifles, said in a statement he had been asked to inspect photographs of cartridge cases at the police ballistics section and while there "I was also shown a partly mutilated .22 calibre Huntsman rifle…”
11.4 There was no other mention of this incident anywhere else in the case.
11.5 It should be remembered that it was a broken Remington rifle that was found with the bodies but that Hallahan's alleged confession by Bailey had him saying it was his rifle he saw bloodied and broken with the bodies and that police alleged Bailey had been in possession of a Huntsman rifle which had never been found.
11.6 Pickering failed to cross-examine on what possible reason police could have had for producing a “partly mutilated .22 calibre Huntsman rifle”, who it belonged to, where it had come from and what was the extent of the damage.
11.7 Bearing in mind the fact that the murder weapon had never been found and that no search for it had been carried out, it would have been legitimate to ask questions about whether there had been an intention to produce the weapon as having belonged to Bailey.
11.8 Pickering failed to raise the issue of the mutilated Huntsman.
11.9 CONCLUSION: Pickering needed to be using issues such as this to build an overall picture of a shambolic prosecution case that was riddled with so many doubts that it could not be trusted.
12. Pickering failed to obtain a detailed understanding of the case
12.1 Michael Byrne SC, in his paper entitled “Incompetence of Counsel” (23 October 2007) suggested the first thing counsel needed to do to avoid a claim of incompetence was to "obtain a detailed understanding of the matter, including the client's potential case."
12.2 Pickering failed to do so.
12.3 His 1958 diary with voluminous daily entries in the first half of the year shows Pickering as being unable to function properly on some days because he was hungover; of drinking large quantities of spirits; and of pre-lunch drinks in the office after which "no one can work properly in the pm".
12.4 It reveals that after Bailey's committal he accepted a brief to represent a consortium battling for Adelaide's first commercial television licence. It involved a public inquiry in which Pickering was involved for the entire week before Bailey's trial.
12.5 And on the day before the trial started - a Sunday - he had played golf: "Too much to drink before we started...Guests for tea...then to bed to read the Sundown brief." (Emphasis added)
12.6 There had been international headlines and astonishment a year earlier when Geoffrey Lawrence QC had decided not to call accused murderer Dr Bodkin Adams to defend himself in a UK case which resulted in a not guilty verdict.
12.7 Pickering followed suit but unlike Lawrence who had prepared a meticulous defence case, Pickering completely failed to formulate an adequate defence should he fail in his bid to have the interrogation of Bailey ruled inadmissible.
12.8 Pickering's diary shows he was briefed on Bailey's charge by solicitor Arthur Mangan on February 12 1958. Pickering was busy on other matters on the 13th but on the 14th he recorded: "Then to the office where I prepared a statement in R v Bailey asking that preliminary hearing evidence be not published."
12.9 On February 18 he held a 4pm conference with Mangan regarding the Sundown Murders but there was no further mention of the Bailey case in the highly-detailed entries until February 24.
12.10 On that day he attended a cathedral service to mark the opening of the legal year then had lunch, went to a judges' reception from 4.15 to 5.15pm and "Then back to the office for a while. Home and dinner about 7 and to work on the Sundown murder case for tomorrow."
12.11 So according to Pickering's diary, his only preparation for the committal amounted to a briefing, part of a day preparing a statement, a late afternoon conference and some work at home after dinner on the night before the opening of proceedings.
12.12 On March 18 Pickering noted in his diary that he was "Arranging to postpone Bailey's case so as to take on T.V. application."
12.13 The "T.V. application" refers to a four-day federal government inquiry in Adelaide at which Rupert Murdoch, Frank Packer and an advertising conglomerate would be competing to determine which one should be nominated to run the sole, massively-profitable commercial television station scheduled for the city.
12.14 The diary, containing the minutiae of Pickering's daily entries, shows no further work on the Bailey case for March and April.
12.15 On Sunday May 4, just one working week before the Bailey trial, the diary entry says Pickering spent up to seven hours preparing for the television inquiry, with Monday afternoon also being devoted to further inquiry preparation.
12.16 On the Tuesday he spent the day at the inquiry, followed by a conference about the inquiry until 10.30pm. He was immersed in the inquiry for the rest of the week, devoting no time at all to the Bailey case.
12.17 But on Saturday May 10 Pickering played golf in the morning. "Pain in my left shoulder. Home reading the Sundown murder. Iris [his wife] put on a turn because I have not taken her out lately."
12.18 The entry suggests his concentration may have been affected.
12.19 Unlike the previous Sunday when he had spent seven hours in preparing for the television inquiry, the diary entry for Sunday May 11, with Bailey due to step into the dock the next day, reveals he played golf again, complaining about his left shoulder "which pained me all the round. Too much to drink before we started...Back to the library to work for an hour."
12.20 Then there were guests for a meal and only after entertaining dinner guests: "...to bed to read the Sundown brief."
12.21 So, on the day before the trial, having been affected by "too much to drink" that day and suffering from pain, the barrister entrusted with trying to save Bailey from the hangman went to bed after entertaining guests and spent a while reading the Bailey brief.
12.22 It was a far cry from the many hours preparing for the television inquiry and suggests a massive failure to obtain a detailed understanding of the case.
12.23 On Sunday May 18 he "Did some work on Bailey's case until 12" before playing golf. The prosecution case finished the next day, meaning Pickering would be faced with the monumental task of making the defence case on the Tuesday.
12.24 The deteriorating state of Pickering's state of mind and health reached a new low on the most crucial day of Bailey's trial. The QC had staked everything on keeping Bailey out of the witness box. Therefore, the entire defence case now rested on him making such a wholehearted and forensic speech that it would convince the jury to return a not guilty verdict.
12.25 This is how he recorded the address in his diary: "Woke feeling like a heart attack. Heart appeared to be operating very irregularly. Never felt like it before Bailey case. I started my address about 10 to 12. Felt better once I was on my feet. Finished about 3.30 and judge summed up till 5.30."
12.26 The lack of preparation even extended to the crucial appeal hearing - the final chance to save Bailey from the gallows.
12.27 The diary entry for June 2: "Back to the office to work at high pressure on Bailey's appeal for tomorrow. He certainly is getting good value for the £400 I received from his father."
12.28 He was having "to work at high pressure" because once again he had left such preparation to the last possible day after nine days in which he had driven to Melbourne and back to attend the Melbourne sittings of the television licence inquiry.
12.29 In her 2009 paperJustice Kiefel (see1.9) said "...there can be no lack of interest by a barrister in the full and complete preparation of the case at hand."
12.30 Pickering's daily entries in his diary make it abundantly and shamefully clear that there was a distinct lack of interest, application and time devoted to preparing Bailey's defence.
12.31 CONCLUSION: He thus failed to "obtain a detailed understanding of the matter, including the client's potential case". That failure is clear evidence of incompetence.
13. Pickering failed to give consideration to evidence likely to be required
13.1 Detective Hallahan, architect of the alleged confession, swore on oath that Bailey's wife had not been interviewed at Mt Isa Police Station late into the night of January 21/22 1958.
13.2 Bailey 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.”
13.3 If Pickering had researched media coverage of the crime he would have realised reporters on two newspapers could have been called regarding their stories that Bailey's wife had been interrogated at Mount Isa Police Station ion January 21 and after midnight.
13.4 The Courier-Mail of January 22 reported "Police early this morning were still questioning a 22-year-old woman."
13.5 And in Adelaide on the 22nd The Advertiser reported: "At midnight police were still questioning a 22-year-old woman, believed to be the man’s wife."
13.6 Two newspaper stories confirmed Patricia, highly strung, pregnant, distraught, with a young son to nurture and a husband who had been spirited away by the police to be charged with murder, had herself been questioned by the police late into the night.
13.7 The information could only have come from police in Mt Isa.
13.8 Pickering failed to call as witnesses the reporters who had written the stories. Testimony that Bailey's wife had, indeed, been questioned that night would have added to Bailey's credibility and done enormous damage to the credibility of Hallahan, the architect of the alleged confession.
13.9 CONCLUSION: Pickering failed to give consideration to evidence likely to be required.
14. One aspect of Pickering's incompetence was obvious to the appeal court
14.1 In addition to Bailey's account of his wife crying during a lengthy interrogation on the night of January 21/22 he also said he had been oppressed.
14.2 Bailey said in his statement: "I was taken away and locked up in a padded cell some time after midnight...During the night I was woken about every half hour by a torch being flashed in the trap and if I did not move, they came in and woke me...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."
14.3 Bailey may have underestimated the disruptions to his sleep. The Adelaide News reported on Saturday January 25 that police were keeping a special watch on Bailey and inspecting his cell every 15 minutes.
14.4 In a veiled criticism of Pickering, the appeal court noted that he had failed to cross-examine on these critical issues.
14.5 The appeal court finding reads: "The allegations, in the statement by the prisoner to the jury, that during the night of January 21st-22nd his rest was disturbed every half hour by flashing a torch on him and waking him, and that he could hear his wife crying, and other allegations suggesting improper pressure, were never referred to in cross-examining the police witnesses, and no intimation was ever given until the statement was made in Court..."
14.6 Pickering's decision to ignore Bailey's statement about oppression resulted in the appeal court finding, that: "...the jury seems to have disregarded the unanswered allegations."
14.7 CONCLUSION: Pickering was incompetent in failing to raise the allegation of oppression effected by his client being woken throughout the night prior to being interrogated about the Sundown Murders and in failing to call witnesses, such as the reporter who obtained the information about Bailey's cell being checked every 15 minutes.
OTHER FACTORS THAT SHOULD BE TAKEN INTO CONSIDERATION
15. Detective Glen Hallahan was not of good character
15.1 In addition to Pickering's gross incompetence it is submitted there is evidence to suggest Detective Hallahan lied at the Bailey trial, thus adding to the substantial miscarriage of justice suffered by Bailey.
15.2 The first example relates to whether or not Bailey's wife was questioned on the night of January 21/22 (see item 13).
15.3 Despite the confirmation of this in two newspapers and Bailey's account of the questioning in his statement, Hallahan swore Mrs Bailey had not been questioned that night.
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.”
15.4 Despite evidence to the contrary, Hallahan said he had no idea Bailey was wanted in connection with the Sundown Murders when he kept watch on Bailey's parked DeSoto car for more than an hour on January 21 before taking him to Mt Isa Police Station.
15.5 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."
15.6 But on January 21 the Adelaide News carried a story headlined: "Police now hunting black 1938 DeSoto" over a story that read: "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."
15.7 Other newspapers carried similar stories.
15.8 Hallahan was the officer in charge of Mt Isa CIB in January 1958.
15.9 Another discrepancy in Hallahan's evidence arose in cross-examination when Hallahan was asked if he had discovered Bailey was linked to the Sundown Murders before he started to question him on January 22, the day after the arrest.
15.10 Answer: "The only thing I had ascertained was that on the day preceding the murder, a similar type car and caravan was seen about 200 miles south of the murder site. I had no other information."
15.11 And Roderic Chamberlain QC, for the prosecution, emphasised Hallahan's claim by saying that up to the first confession on the afternoon of January 22 Bailey might have been a witness in the case. The police had no idea of his relation to the case, he said.
15.12 But in his memoir published in 2010 by the South Australian Police Association, Detective Hopkins 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]
15.13 Pickering 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.”
15.14 But on January 22 the Adelaide Advertiser reported: "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."
15.15 Mr McKinna was the South Australian police commissioner.
15.16 Were these blemishes typical of Hallahan's character?
15.17 Eight days after Bailey was found guilty, Hallahan arrested a man in Queensland who went on to complain to the Full Court of Queensland that he had pleaded guilty to a charge as "the result of enticement or inducement" by Hallahan.
15.18 Hallahan denied the allegation on oath but the three judges felt so concerned about the case that they laid down a course of action all magistrates should follow if a defendant did not have a legal representative and pleaded guilty.
15.19 The case went into the legal records as Hallahan v Kryloff, ex-parte Kryloff [1960] QWN 18 and has been frequently quoted in Queensland judgements.
15.20 Retired Queensland District Judge Warren Howell became a Queensland barrister in November 1965. He has submitted: "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."
15.21 Former President of Queensland Parole Board and retired barrister Francis Lippett has submitted: "When a Queensland detective, I was put to work with Glen Patrick Hallahan for about three weeks until he requested another partner, as we had quite different standards and attitudes. Throughout my Police service and afterwards, Hallahan, another detective named Murphy and Terry Lewis who became the Police Commissioner, were reputed to be involved in serious criminal and corrupt activity. It was not just inappropriate office gossip, but a series of accusations by a number of respected detectives, although hard evidence was lacking. His propensity to fabricate evidence was confirmed by at least three Courts, as detailed by the petitioner."
15.22 He also says: "It is not suggested that the Supreme Court erred in 1958. However it is now possible to consider the evidence in the light of what is now known about the activities of Glen Patrick Hallahan, without whose evidence the prosecution would have surely failed."
15.23 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 no theft had taken place, resulting in Cavanagh receiving a pardon (pp126/127 and 340/341 Queensland Hansard 1961, Sunday Truth May 14 1961).
15.24 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 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).
15.25 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.
15.26 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. Campbell complained the conviction and order were obtained by fraud and duress. He swore Hallahan had threatened him with a false charge carrying a much higher maximum sentence than vagrancy and had said that if he pleaded guilty to vagrancy Hallahan 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)
15.27 It would have been out of character for Hallahan to have told the truth, the whole truth and nothing but the truth at the Bailey trial.
15.28 The fact that in the five years immediately after the Bailey trial Hallahan was prepared to fabricate confessions, give false evidence and lie to courts could not have been adduced at the time.
15.29 Nevertheless, it should have been clear to anyone analysing Bailey's alleged confession that it was not true and had probably been fabricated.
15.30 Bailey would have had no reason to identify the Bowman party's Remington as his in a confession. But when Hallahan was writing the alleged confession he was unaware of the Remington and believed the only rifle at the scene was a Huntsman because police had learned that months before the murders Bailey had bought a Huntsman. However, Bailey said in his statement to the court he had sold that rifle.
15.31 Hallahan was aware the Bowman party had been shot. But he did not know details of the injuries. So the descriptions of the shootings in the alleged confession bore no resemblance at all to what had happened. A genuine confession would obviously have contained the facts.
15.32 Police had failed to establish a motive for the murders. A genuine confession should have included the reason why a murderer killed three people so brutally. Hallahan got round this problem by having Bailey say he shot one person by accident and then had a blackout.
15.33 Pickering failed to put these points to Hallahan.
15.34 CONCLUSION: There were pointers to Detective Hallahan's inability to tell the truth, the whole truth and nothing but the truth in his evidence at the Bailey trial; two outstanding members of the legal fraternity have submitted further evidence regarding Hallahan's character; and Hallahan's use of false confessions and perjury as documented in the Petition and Addendum to the petition for the prerogative for mercy for Bailey in 2022.
16. The jury was not warned about the lack of corroboration
16.1 The jury was not warned of the dangers of convicting an accused where a disputed admission is the only, or substantially the only, evidence.
16.2 The prosecution offered no direct corroboration of the alleged confession.
16.3 Although Pickering did not cross-examine witnesses about the alleged confession nor dispute it, Bailey was vehement in his denial.
16.4 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)
16.5 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)
16.6 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)
16.7 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.
16.8 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.
16,9 CONCLUSION: In the interests of achieving a fair trial, and no matter what case history existed at the time, the jury should have been advised of the danger of convicting on an alleged confession which was rejected by the defendant and contained major contradictions.
17. The prosecution invented a motive for the murders with no supporting evidence
17.1 In summing up, 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.
17.2 Prosecution counsel told the jury that counsel’s right was no more than to submit argument on what was proved in evidence.
17.3 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.”
17.4 Pickering 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.”
17.5 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.”
17.6 But this act, denied by Bailey, was portrayed in the alleged confession as an afterthought on the day after the murders and not a motive for the killings.
17.7 The invented motive by the prosecution in the summing up alleged: “The whole situation points clearly at an attempt at robbery which went wrong.”
17.8 There is no such clarity.
17.9 Prosecution counsel alleged: “…Bailey held up the three travellers for money at gunpoint…”
17.10 This is pure invention but stated as a fact.
17.11 “…Whelan tried to get the Remington rifle but Bailey shot him in the back.”
1712 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.
17.13 “Bailey grabbed that rifle from Whelan…”
17.14 There had been no evidence of the accused grabbing a rifle from Whelan.
17.15 “…put in perhaps three more cartridges and tried to shoot them but the rifle jammed.”
17.16 This is pure invention which bears no resemblance to any of the evidence.
17.17 The judge’s summing up did little if anything to dismiss this invention from the jury’s minds.
17.18 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.”
17.19 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.
17.20 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.”
17.21 The jury may well have taken this to suggest that the only conceivable motive was the theory advanced by the prosecution.
17.22 Pickering failed to point out to the jury that this was yet another contradiction of the only direct evidence.
17.23 CONCLUSION: The judge should have directed the jury to disregard the suggested motive as being without foundation. It may well be that the jury was influenced by the prosecution theory and the judge's failure to condemn it.
18. A substantial miscarriage of justice
18.1 In addition to the 17 conclusions supporting a substantial miscarriage of justice occurred in the case of R v Bailey, this analysis reaches additional conclusions enumerated below.
18.2 In TKWJ v The Queen [2002] HCA 46; 212 CLR 124; 76 ALJR 1579; 193 ALR 7; 133 A Crim R 574, Gaudron J said: “The question whether there has been a miscarriage of justice is usually answered by asking whether the act or omission in question “deprived the accused of a chance of acquittal that was fairly open”.
18.3 This analysis has established there were many acts and omissions in this case which deprived Bailey of an acquittal that was manifestly and fairly open.
18.4 Gaudron also said in the same case: "One matter should be noted with respect to the question whether counsel's conduct is explicable on the basis that it resulted or could have resulted in a forensic advantage. That is an objective test. An appellate court does not inquire whether the course taken by counsel was, in fact, taken for the purpose of obtaining a forensic advantage, but only whether it is capable of explanation on that basis."
18.5 Pickering's conduct, involving many failures, cannot be explained by an argument that it was capable of resulting in a forensic advantage.
18.6 In a 2016 paper "Incompetence of Counsel as a Ground for Appeal in the CCA" prepared for a legal conference, Peter Guirguis, Senior Solicitor, Legal Aid NSW, an accredited specialist in criminal law, analysed Nudd v The Queen [2006] HCA 9.
18.7 Guirguis held: "There was consensus among the members of the Court that, if the accused had been deprived of a real chance of an acquittal by reason of the effect of counsel’s incompetence, then the verdict could not stand."
18.8 It therefore follows from the above analysis of Nudd v The Queen that Bailey was deprived of a real chance of an acquittal by reason of the effect of counsel’s incompetence as detailed in this analysis and, therefore, the verdict should not stand.
18.9 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 …”
18.10 Pickering's failures as detailed in this analysis make it abundantly clear that he failed to abide by and uphold professional rules of conduct by failing in his obligation to "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…”
18.11 His failures produced a trial that did not meet the minimum standards of fairness required of a trial.
18.12 Failure to conduct the defence properly is inconsistent with the notion of a fair trial according to law, which of itself constitutes a miscarriage of justice.
18.13 Pickering's failings as itemised comprised flagrant incompetence, egregious errors, significant faults and negligence which contributed to a gross miscarriage of justice.
18.14 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)
18.15 On the basis of all the foregoing it is incumbent on the South Australian justice system not to wash its hands of this gross miscarriage of justice but to do whatever is necessary in order to re-examine R v Bailey with a view to quashing the conviction and issuing a posthumous.pardon.
18.16 A combination of gross incompetence by defence counsel Arthur Pickering QC; a prosecution case based on only one piece of direct evidence which contradicted the facts; and other factors enumerated in the analysis, resulted in a gross miscarriage of justice.
18.17 in the words of retired Queensland District Judge Warren Howell: "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."
This request is accompanied by the submission of his honour Warren Howell which was included in the Addendum to the petition for the prerogative for mercy for Bailey dated May 2022.
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.
Signed
Dear Attorney-General ,
Application for a referral to the Court of Appeal – Raymond John Bailey
New analysis of R v Bailey 1958 reveals Raymond John Bailey did not receive a fair trial due to gross incompetence by defence counsel Arthur Pickering QC, causing a substantial miscarriage of justice.
Foremost among many examples of gross incompetence by Pickering is the fact he ignored Bailey's plea and statement that he was not guilty of the charge of murder and told the jury his client was guilty, despite evidence Bailey could not have been the murderer.
In view of the number of very troubling aspects of R v Bailey, I am respectfully asking that the matter be referred to the Court of Appeal for a judicial determination as to whether the conviction should stand. It is appreciated that Bailey was hanged in 1958 but I hope you will agree that for the sake of his 89-year-old sister and other family members, justice should not have a time limit. If a person has been wrongly convicted, particularly for a capital crime, the decision should be corrected.
FACTS
Thyra Bowman, aged 43, her daughter Wendy, 14, and family friend Thomas Whelan, 22, were murdered on or about December 5 1957 in remote bushland on the abandoned Sundown Station, Northern Territory, while camping.
Bailey was arrested by Queensland detective Glen Hallahan in Mt Isa, north-west Queensland, on January 21 1958 and charged with the murder of Thyra Bowman after Adelaide police had announced his car was the subject of a nationwide search.
He was found guilty at Adelaide Supreme Court on May 20 1958 by a jury which deliberated for only an hour and 28 minutes and he was hanged on June 24 1958.
SUMMARY OF PICKERING QC'S GROSS INCOMPETENCE
In addition to telling the jury in R v Bailey that his client was guilty, Pickering also:
Failed to cross-examine witnesses on the basis that the description of the killings in the alleged confession, which was the prosecution's only direct evidence, was completely contradicted by the facts.
Failed to establish Bailey could not have been guilty because his shoe size did not match footprints left by the murderer at the murder scene.
Failed to cross-examine prosecution evidence that a woman had driven a car to dispose of the bodies despite Bailey's statement that his wife did not know how to drive - meaning Bailey could not have been the murderer.
Told the court "There is no ground to suggest there was any threat or promise” in obtaining the alleged confession tendered to the court, thus contradicting Bailey's statement that police had threatened to keep questioning his wife until he confessed and had promised to leave her alone if he signed.
Failed to focus the jury's attention on the mis-identification in the alleged confession of a rifle used in the murders.
Having accepted police allegations that Bailey had confessed, he relied at trial and on appeal on the narrow ground that, according to Detective Hallahan, Bailey was not warned about his right to silence until after having made an alleged confession - and failed to cross-examine or make an appeal submission that the reason the confession was factually incorrect was that it had been fabricated.
These and other examples of Pickering's incompetence are in addition to other disturbing features of the case which are enumerated in this application.
CONTENTS
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1. Pickering QC contradicted Bailey's plea and statement that he was not guilty
2. Pickering failed to demolish the only direct evidence, despite it not fitting the facts
3. Pickering failed to make any reference to the fact Bailey could not have been the murderer
4. Pickering failed to exploit another major contradiction in the prosecution case
5. Pickering wrongly told the jury police had made no "threat or promise” to Bailey
6. Pickering failed to challenge another major contradiction
7. Pickering failed to explore the farce of the "wrong rifle"
8. Pickering failed to highlight there had been no attempt to find the "smoking" gun
9. Pickering failed to tackle a prosecution allegation that was not substantiated
10. Pickering failed to exploit "fortuitous discoveries"
11. Pickering failed to ask questions about a mutilated Huntsman rifle
12. Pickering failed to obtain a detailed understanding of the case
13. Pickering failed to give consideration to evidence likely to be required
14. One aspect of Pickering's incompetence was obvious to the appeal court
15. Detective Glen Hallahan was not of good character
16. The jury was not warned about the lack of corroboration
17. The prosecution invented a motive for the murders with no supporting evidence
18. A substantial miscarriage of justice
LACK OF A FAIR TRIAL
1. Pickering QC contradicted Bailey's plea and statement that he was not guilty by telling the jury his client was guilty
1.1 Raymond John Bailey was charged with the murder of Thyra Bowman at Sundown Station in the Northern Territory on December 5, 1957. The trial took place at Adelaide's Supreme Court in May 1958.
1.2 In his statement to the court Raymond John Bailey said: "I did not kill any of these people and I am not guilty of this charge." Indeed, he pleaded not guilty.
1.3 Pickering contradicted his client by telling the jury Bailey had confessed to the murder, saying of his interrogation by Detective Glen Hallahan: "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.”
1.4 The "deadly admission" was an allegation by Detective Hallahan that Bailey had told him: "I shot the young chap but I want to tell you how it happened.”
1.5 Not only did Pickering contradict his client's statement that he did not kill anyone, he was telling the jury that his client was guilty despite evidence that Bailey could not have been the murderer (see headings 3 and 4).
1.6 Pickering made it clear he believed Detective Hallahan's statement and evidence that Bailey had confessed to the murder rather than his client's protestations of innocence and the fact that Bailey's shoe size did not match the murderer's footprints found at the scene of the crime.
1.7 This is despite the fact that Hallahan's statement, alleged confession and evidence contained many demonstrable contradictions and falsifications, as did the statements and evidence of Detectives Moran and Hopkins.
1.8 As early as February 25 and 28 1958, during Bailey's committal, Pickering had formed his opinion that Bailey was guilty, referring in his daily diary notes to "the confession" as a fact. (The diary is owned by Pickering's grandson, Michael Becker of Hawthorndene, South Australia, 5051.)
1.9 In a paper delivered in 2009 entitled The Profession of Barrister - Service, Duty and Independence, the Hon Justice Kiefel referred to a rule which prohibits the making of submissions or the expression of views which "convey or appear to convey the barrister's personal opinion on the merits of that evidence or issue".
1.10 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.
1.11 CONCLUSION: It is clear that Pickering's submission conveyed his personal opinion that Detective Hallahan's claims were true and that his client was lying when he said that he was innocent.
2. Pickering failed to demolish the only direct evidence despite it not fitting the facts
2.1 In his opening statement at the trial, prosecuting counsel Eb Scarfe QC told the jury the only direct evidence against Bailey was the alleged confession and a statement by Bailey's father--in-law which was never tendered.
2.2 Crown Solicitor Rodric Chamberlain QC regarded the alleged confession as so pivotal to the case that he took personal charge of the prosecution when Pickering applied to have the alleged confession ruled inadmissible. As soon as the decision to admit it was made, Chamberlain handed the case to Scarfe.
2.3 Pickering argued the evidence provided by Detective Hallahan was not obtained voluntarily, was unfair and had been obtained only after a late caution. Chamberlain said it would have been calamitous if police had been prevented from such questioning. “If they have to do what Mr Pickering is suggesting is proper, they would have had to release Bailey…The murder would have been left unsolved but a suspicion would have been left against members of the Bowman family.”
2.4. In summary, the prosecution admitted that the only direct evidence was the alleged confession by Bailey to police. (A claim by the prosecution that Bailey had confessed to his father-in-law was never advanced - see item 9.)
2.5 This made it crucial for Pickering to dismantle the confession piece by piece but he failed to identify and demolish the easily identifiable contradictions in it.
2.6 It should have been obvious to the man on Adelaide's Clapham omnibus, let alone a barrister, that the account of the killings in the alleged confession did not match the facts given in evidence by the prosecution.
2.7 Hallahan's alleged confession has Bailey saying the three people were sleeping on the ground at the camp site when he approached in the dark: "I was about 12 feet away from them and a dog jumped out and barked. I fired a shot at it. When I fired the shot the young fellow jumped up off the ground and screamed and fell over and I knew that I had shot him."
2.8 But a post mortem by Dr John Dwyer found Whelan had been shot twice in the back as well as being shot through the back of his head - all at close range.
2.9 Pickering failed to cross-examine Dr Dwyer, or Detectives Hallahan, Hopkins and Moran about this contradiction with the alleged confession.
2.10 Alleged confession: "I loaded my rifle again and aimed it at the older woman who was rushing towards me and fired. She fell down straight away."
2.11 But the postmortem found she had not been killed in this way but had been shot in the back of the neck with the bullet passing through the roof of the mouth and into the brain.
2.12 Pickering failed to cross-examine Dr Dwyer, or Detectives Hallahan, Hopkins and Moran about this contradiction with the alleged confession.
2.13 Alleged confession: "The young girl rushed at me too, so I loaded again, aimed it and shot her. She fell down too."
2.14 But the pathologist reported: “The only position I can envisage is that she was lying on the ground with the right side of the head downwards when she was shot through the head.”
2.15 Pickering failed to cross-examine Dr Dwyer, or Detectives Hallahan, Hopkins and Moran about this contradiction with the alleged confession.
2.16 Alleged confession: "I was only about three yards from them. I shot from the waist."
2.17 But the post mortem found all three had been shot at close range.
2.18 Pickering failed to cross-examine Dr Dwyer, or Detectives Hallahan, Hopkins and Moran about this contradiction with the alleged confession.
2,19 The alleged confession has Bailey saying he put three corpses in the victims' car and drove them into the scrub where he laid them under a tarpaulin.
2.20 Wrong again! All three were found to have been alive when moved from the campsite.
2.21 Pickering failed to cross-examine Dr Dwyer, or Detectives Hallahan, Hopkins and Moran about this contradiction with the alleged confession.
2.22 The descriptions of the shootings were completely wrong. The killer had fractured the victims' skulls at the camp site which had resulted in extensive bleeding on the ground when they were dumped more than a kilometre away.
2.23 Pickering failed to cross-examine Dr Dwyer, or Detectives Hallahan, Hopkins and Moran about this contradiction with the alleged confession.
2.24 Even the prosecution demolished Hallahan's creation of a confession, with prosecuting counsel telling the jury: “Dr Dwyer will tell you that the skulls of all three victims were bashed in before they were shot.”
2.25 The bullets that killed them were not fired at the camp site as described in the alleged confession.
2.26 Pickering failed to question pathologist Dr Dwyer or any of the detectives about these comprehensive discrepancies and point out that they contradicted the only direct evidence offered by the prosecution.
2.27 Had Pickering explored and emphasised the discrepancies he would have been in a position to advise the jury the prosecution case had failed and that it should find Bailey not guilty.
2.28 Pickering's complete failure to expose the alleged confession as a tissue of lies resulted in the judge using it to devastating effect in his summing up, telling the jury it could have no doubt about it.
2.29 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."
2.30 CONCLUSION: Pickering's failure to expose the alleged confession as contradicting the facts of all three murders resulted in the judge being able to tell the jury it could have "no doubt" about its veracity. Had Pickering succeeded, as he should have done, he would have been able to tell the jury that the prosecution itself had demonstrated the confession was not true and that Bailey should be found not guilty.
3. Pickering failed to make any reference to the fact, presented in evidence, Bailey could not have been the murderer
3.1) 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.
3.2) 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.
3.3 CONCLUSION: Pickering failed to cross-examine on this issue and failed to mention such an exculpatory fact in his closing address to the jury when he should have been able to emphasise: "Members of the jury, it has been demonstrated conclusively the defendant could not be the murderer."
4. Pickering failed to exploit another major contradiction in the prosecution case
4.1 Pickering failed to examine a major contradiction in the prosecution case. Several witnesses gave evidence that when the victims' car had been moved to its final position after the three bodies had been dumped in the bush, a woman's footprints had been found leading away from the car but none had been found approaching the car.
4.2 Prosecuting counsel Scarfe said there had been one set of female tracks going out to the road from the car but none had led in. "This indicated the car was driven to that position by a woman," he said.
4.3 But Bailey said in his statement: "Referring to the evidence about a woman’s tracks from the Vanguard, my wife is not able to drive a car."
4.4 In his summing up, Scarfe was dismissive: “There is only Bailey’s word as to his wife’s inability to drive a car.”
4.5 Scarfe's statement means the prosecution had failed to check if Mrs Bailey had a driving licence.
4.6 Pickering failed to provide evidence that Bailey's wife did not possess a driving licence or was unable to drive.
4.7 Pickering failed to put the question: if it was not Mrs Bailey who could it have been? And if it was not Bailey's wife it followed that, with no evidence that any other women had been seen in the vicinity or with Bailey, that Bailey was not the killer.
4.8 Pickering also failed to point out that this was yet another contradiction by the prosecution of its only direct evidence which had Bailey saying it was he who had driven the car to where it was found.
4.9 CONCLUSION: Pickering should have been in a position to tell the jury the fact that an unidentified women had driven the car from where the bodies had been dumped when Bailey's wife was unable to drive a car proved Bailey could not have been the murderer.
5. Pickering wrongly told the jury police had made no "threat or promise” to Bailey
5.1 Bailey recalled in his statement how he and his wife had both been questioned separately and at length at Mt Ia Police station on December 22 1957. He said in his statement: "During the morning I could hear my wife crying downstairs. I told them where I had been and what I had been doing but they just kept on questioning me and didn’t seem to believe me. By midday I was in such a state I didn’t know what I was saying. From then on I think I just answered the questions in the way I thought they wanted me to...
5.2 "After Hopkins and Moran arrived, which was about half past three, they questioned me until about 8 o’clock that night.
5.3 "Towards the end of their questioning they said to me 'They are still questioning your wife and you won’t be allowed to see her until you sign a confession and they won’t stop questioning her until you do'. They also said 'Do you love your wife?' I said 'I do'” and they said 'Well then, sign it and we will leave her alone'. By this time all I wanted was for them to stop questioning my wife and leave her alone. Moran typed out a statement and asked me to sign it and I signed it. They asked me to write the word 'Yes' after some questions at the end of it."
5.4 That account contains both a threat and a promise.
5.5 Pickering plainly misrepresented Bailey.
5.6 And Bailey said that the threat and promise worked: "The reason why I signed the confession was so that they would stop questioning my wife and leave us both alone."
5.7 It is now accepted that any interview will not be admitted if it was induced by a threat, promise or untrue representation made by the police or some person in authority. It is certainly a good reason why it should not have been admitted in 1958.
5.8 CONCLUSION: Pickering should have focussed on developing the position that threats and promises had been made during Bailey's interrogation and been able to tell the jury that this should have negated any result of the interrogation.
6. Pickering failed to challenge another major contradiction
6.1 Pickering failed to focus the jury's attention on the mis-identification in the alleged confession about a rifle used in the attack.
6.2 In examining the injuries suffered by Thomas Whelan, one of the three victims, the pathologist referred to a a broken, blood-splattered Remington Sportsmaster rifle found with the bodies and reported: “…the fractures on Whelan’s skull were consistent with having been caused by a blow from this rifle butt.”
6.3 In his statement Bailey said he had not possessed a rifle at the time of the murders.
6.4 But police alleged that Bailey had carried a Huntsman rifle. And Hallahan alleged Bailey had confessed that when he returned to the victims' car on the morning after the murders: “I saw my rifle on the front seat. The wooden part of it was broken and it was covered in blood.” (Emphasis added)
6.5 But it was the Remington rifle that was broken - and it had belonged to the victims, not Bailey.
6.6 Despite his client saying categorically he did not have a rifle, Pickering failed to cross-examine the detectives and ballistics expert Ivan Patterson about this glaring contradiction.
6.7 Tellingly, there is no mention anywhere in Hallahan's alleged confession that the victims possessed a rifle nor how Bailey not only accessed it but how and when he bludgeoned the victims unconscious with it.
6.8 Pickering failed to cross examine on this issue.
6.9 Pickering failed to ask how a passing stranger would have known the Bowman party possessed a rifle and known where to locate it in the dead of night in order to fracture three skulls.
6.10 Pickering failed to posit why Bailey would have risked waking the victims if, as police alleged, he was already carrying a rifle.
6.11 What is also missing from the story is a motive for going to a lonely campsite in the middle of the night while allegedly carrying a rifle.
6.12 Pickering failed to explore this issue.
6.13 He failed to address the fact that there was no explanation in the alleged confession of how Bailey was supposed to have come into possession of the victims’ Remington in the dark of night at the campsite, how he was supposed to have used it to bludgeon the victims, in which order and why, and why the unconscious bodies were moved to a new location where they were all shot at point blank range with another weapon.
6.14 He should have cross examined on the premise that the first thing the murderer did (according to the post mortems) was to obtain the Remington in order to bludgeon the victims.
6.15 Didn't such an action point to an attacker who knew the Bowman trio had a gun and that taking it while they slept would have been a means of preventing them from defending themselves? Pickering failed to explore this scenario.
6.16 The fact is that the murderer clubbed the victims unconscious with massive swings of the butt of their own rifle while they slept.
6.17 Pickering did point out that Bailey was small but failed to mention Bailey weighed a mere 9 stone 7 pounds (60 kilograms) and wore 5 1/2 shoes.
6.18 CONCLUSION: Pickering should have used all these pointers to add to the argument detailed in item 2.30 that the prosecution case did not stand up to scrutiny.
7. Pickering failed to explore the farce of the "wrong rifle"
7.1 The mis-identification of rifles remained in Hallahan's evidence at the trial.
7.2 Pickering failed to challenge it.
7.3 How did South Australian detectives Hopkins and Moran tackle this contradiction?
7.4 Hopkins testified that when he had arrived at the murder scene in December he had identified the blood-spatted, broken gun found with the bodies as a Remington.
7.5 But when Hopkins and Moran questioned Bailey after taking over the questioning from Hallahan they failed to ask him a single question about the Remington, according to their testimony.
7.6 Pickering failed to explore these issues.
7.7 Having avoided mentioning the Remington, Hopkins and Moran then removed all embarrassing mentions of it from the signed confession they alleged they had obtained.
7.8 And although the false account of the murders remained in the document which Moran and Hopkins presented to the jury, references to Bailey having seen his gun bloodied and broken in the victims' car had vanished.
7.9 Pickering failed to explore this issue.
7.10 This major contradiction may have disappeared from the signed document but it remained as a side issue in the record of interview.
7.11 Moran: We have had a conversation with your wife and she told us that...after you washed the car and returned to your car and caravan where she was waiting for you, this is Friday 6 December, you had a rifle in your hands which she recognised as being yours. You showed it to her and the stock was broken and there was blood spots on it." (Emphasis added)
7.12 Bailey: 'Yes. That is right.'
7.13 Pickering failed to point out this was yet another version of the broken rifle having been a Huntsman belonging to Bailey and not the victims' Remington.
7.14 The confusion was made worse by the Moran and Hopkins version of the alleged confession quoting Bailey as saying that on the morning after the killings he had used his supposedly broken gun to shoot two dogs and that when he threw away his gun the stock was only cracked and not broken.
7.15 Pickering failed to cross examine on this contradiction.
7.16 The prosecution had an alleged confession full of holes and no smoking gun.
7.17 But Pickering failed to explore these issues despite them being connected to the only direct evidence against Bailey.
7.18: CONCLUSION: Pickering should have used all these contradictions to add to the arguments (2.30 and 6.18) that the prosecution case did not stand up to scrutiny.
8. Pickering failed to highlight there had been no attempt to find the "smoking" gun
8.1 Where was the smoking gun - the Huntsman rifle which police alleged Bailey had said he used to shoot the victims?
8.2 Bailey said in his statement he didn't have a rifle with him at the time of the murders.
8.3 But the alleged confession had him throwing a Huntsman rifle away after the murders while driving near Alice Springs.
8.4 On January 23, 24, 25, 28, 29 and 30, while Bailey was still in Mount Isa, newspapers quoted police as saying it was their intention to take him back to the road south of Alice Springs to search for what police believed was the murder weapon.
8.5 Police even told newspapers that black trackers had been assembled ready for the search.
8.6 But Bailey was flown straight to Adelaide, was never taken to the area where an alleged murder weapon had supposedly been dumped and no search was ever undertaken.
8.7 Pickering failed to ask why Bailey was not taken to search for the alleged murder weapon and why no search had been made. He failed to ask why trackers had been assembled and why their services had been dispensed with.
8.8 The only direct evidence the police had was an alleged confession which they must have realised could be easily demolished, Finding the murder weapon would have been a damning exhibit.
8.9 A reasonable question for Pickering to have put was: could the reason for there having been no search was that the confession was a fabrication and, therefore, it would have been absolutely pointless?
8.10 CONCLUSION: He certainly could have pointed out to the jury that the decision not to search for the murder weapon, which would have been indisputable direct evidence, was yet another example of a flawed investigation that could not be trusted.
9. Pickering failed to tackle a prosecution allegation that was not substantiated
9.1 On the last working day before Bailey's committal was due to start in February 1958 Detective Hallahan typed a statement in which he alleged there had been a conversation between Bailey and his father-in-law, David Hudson, nearly four weeks earlier on January 25 at which he had been present.
9.2 Hallahan's statement included an alleged verbatim exchange of about 180 words between Bailey and Hudson in which Bailey had confessed he had killed the three people. It was read into the evidence at the committal by Hallahan.
9.3 In cross-examination he admitted he had "made no notes concerning the conversation of Saturday 25th January" before typing the statement on February 21.
9.4 Quite a feat to remember a conversation, word-for-word - four weeks later!
9.5 At the trial prosecuting counsel Scarfe, in opening the case, said: The Crown case, that Mrs Bowman was murdered by Bailey, is composed of two branches, circumstantial and a confession by Bailey that he killed all three.”
9.6 After mentioning the circumstantial evidence Scarfe said: "The second branch was what Bailey said to Detective Hallahan of the Queensland Police, and to Detectives Moran and Hopkins of South Australia, and to his own father-in-law."
9.7 In short, the prosecution told the jury the Hudson testimony would form part of the only direct evidence it had against Bailey.
9.8 The appeal court regarded the alleged Bailey-Hudson exchange as so important that it recorded the entirety of it as a fact in its rejection of the appeal (thus raising a doubt about the fairness of the appeal process).
9.9 But despite the importance placed on the alleged conversation, the prosecution did not call Hudson to testify.
9.10 Bailey was adamant in his statement to the court: "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."
9.11 It was not revealed who had told Bailey that Hudson was too ill to attend. No medical certificate was mentioned in evidence.
9.12 The prosecution duty to present its case fairly includes the calling of all relevant witnesses.
9.13 Pickering should have complained long and loud that the jury may well have been influenced by Scarfe's assertion that Bailey had confessed to his father-in-law even though Hudson was not called to testify. He should have told the jury it was possible that Hudson had not been called because his testimony would not support the allegation made by the prosecution and it should not be influenced by the unsupported allegation.
9.14 Indeed, a year after the Bailey case, a legal precedent called "the Jones v Dunkel rule" was established, so that if the prosecution is expected to call a witness and does not do so, the jury can infer that the witness would not have provided any evidence that would have assisted the prosecution’s case and it should entertain a reasonable doubt about the guilt of the accused.
9.15 If Hallahan’s claim had been true it was fundamental police practice to obtain a written statement from Hudson as to what Bailey had said as soon as possible, given the extreme importance of his evidence as someone who was able to give sworn evidence of admissions of guilt.
9.16 Pickering failed to explore Hallahan's claim and to ask why he had not written or typed such a statement immediately if it was true, especially as the alleged conversation would have been of major importance to the prosecution case.
9.17 Pickering was entitled to ask if this was yet another fabrication by Hallahan.
9.18 Pickering failed to call Hudson in order to refute the allegation that Bailey had confessed.
9.19 CONCLUSION: Calling Hudson could have destroyed the credibility of the main prosecution witness but Pickering failed to make any capital from the issue and did not call for the reference to Hudson to be ignored by the jury.
10, Pickering failed to exploit "fortuitous discoveries"
10.1 Police sought to link Bailey to a Huntsman rifle they alleged he had possessed.
10.2 Hallahan searched Bailey's car and caravan on January 21. There is a photograph on the front page of the Adelaide News for Saturday January 25 of a Detective Pfingst searching the car.
10.3 Detective Moran said that when he searched the car on January 22 there was quite a lot of junk and: " We took it out into the open and then returned it to the car."
10.4 Hallahan swore: "The car and caravan were both carefully searched."
10.5 How fortuitous, then, that ballistics expert Ivan Patterson was able to report that after those earlier searches and a fortnight after Bailey's arrest: “I searched the DeSoto sedan car…and I found under the floor mat on the right-hand side of the front compartment…a .22 calibre ICI high-velocity long or long-rifle cartridge case.”
10.6 He said it had been fired from a Huntsman, the type of gun police had sought to link to Bailey.
10.7 Pickering failed to cross-examine on how it could have been that neither Bailey when he was driving the car nor any of the other police who had searched the car had noticed a lump under the driver's mat where Bailey's feet would have moved backwards and forwards for many hours while driving.
10.8 Pickering failed to ask why a murderer - said by Scarfe to be "very cunning" - would have placed an incriminating cartridge case under the mat?
10.9 The caravan had been searched by the police since January 21, yet on February 14 - a further 10 days after the discovery under the car mat, Patterson was able to find another cartridge case in a small cupboard in the caravan – and identify it as having been fired by the same Huntsman.
10.10 Pickering failed to ask why someone who was "very cunning" would pick up two incriminating spent cartridge cases from the murder scene and put one in his car and another in his caravan while leaving three behind in easily discoverable circumstances. And why would he keep the two cartridge cases rather than throw them away at the first opportunity?
10.11 CONCLUSION: This was yet another lost opportunity to add to the doubts about the prosecution case.
11, Pickering failed to ask questions about a mutilated Huntsman rifle
11.1 There was a strange reference to a mutilated Huntsman rifle in a statement admitted in evidence.
11.2 Hallahan's allegations had included Bailey throwing away a damaged Huntsman south of Alice Springs.
11.3 John Llewellyn Warne, managing director of the company producing Huntsman rifles, said in a statement he had been asked to inspect photographs of cartridge cases at the police ballistics section and while there "I was also shown a partly mutilated .22 calibre Huntsman rifle…”
11.4 There was no other mention of this incident anywhere else in the case.
11.5 It should be remembered that it was a broken Remington rifle that was found with the bodies but that Hallahan's alleged confession by Bailey had him saying it was his rifle he saw bloodied and broken with the bodies and that police alleged Bailey had been in possession of a Huntsman rifle which had never been found.
11.6 Pickering failed to cross-examine on what possible reason police could have had for producing a “partly mutilated .22 calibre Huntsman rifle”, who it belonged to, where it had come from and what was the extent of the damage.
11.7 Bearing in mind the fact that the murder weapon had never been found and that no search for it had been carried out, it would have been legitimate to ask questions about whether there had been an intention to produce the weapon as having belonged to Bailey.
11.8 Pickering failed to raise the issue of the mutilated Huntsman.
11.9 CONCLUSION: Pickering needed to be using issues such as this to build an overall picture of a shambolic prosecution case that was riddled with so many doubts that it could not be trusted.
12. Pickering failed to obtain a detailed understanding of the case
12.1 Michael Byrne SC, in his paper entitled “Incompetence of Counsel” (23 October 2007) suggested the first thing counsel needed to do to avoid a claim of incompetence was to "obtain a detailed understanding of the matter, including the client's potential case."
12.2 Pickering failed to do so.
12.3 His 1958 diary with voluminous daily entries in the first half of the year shows Pickering as being unable to function properly on some days because he was hungover; of drinking large quantities of spirits; and of pre-lunch drinks in the office after which "no one can work properly in the pm".
12.4 It reveals that after Bailey's committal he accepted a brief to represent a consortium battling for Adelaide's first commercial television licence. It involved a public inquiry in which Pickering was involved for the entire week before Bailey's trial.
12.5 And on the day before the trial started - a Sunday - he had played golf: "Too much to drink before we started...Guests for tea...then to bed to read the Sundown brief." (Emphasis added)
12.6 There had been international headlines and astonishment a year earlier when Geoffrey Lawrence QC had decided not to call accused murderer Dr Bodkin Adams to defend himself in a UK case which resulted in a not guilty verdict.
12.7 Pickering followed suit but unlike Lawrence who had prepared a meticulous defence case, Pickering completely failed to formulate an adequate defence should he fail in his bid to have the interrogation of Bailey ruled inadmissible.
12.8 Pickering's diary shows he was briefed on Bailey's charge by solicitor Arthur Mangan on February 12 1958. Pickering was busy on other matters on the 13th but on the 14th he recorded: "Then to the office where I prepared a statement in R v Bailey asking that preliminary hearing evidence be not published."
12.9 On February 18 he held a 4pm conference with Mangan regarding the Sundown Murders but there was no further mention of the Bailey case in the highly-detailed entries until February 24.
12.10 On that day he attended a cathedral service to mark the opening of the legal year then had lunch, went to a judges' reception from 4.15 to 5.15pm and "Then back to the office for a while. Home and dinner about 7 and to work on the Sundown murder case for tomorrow."
12.11 So according to Pickering's diary, his only preparation for the committal amounted to a briefing, part of a day preparing a statement, a late afternoon conference and some work at home after dinner on the night before the opening of proceedings.
12.12 On March 18 Pickering noted in his diary that he was "Arranging to postpone Bailey's case so as to take on T.V. application."
12.13 The "T.V. application" refers to a four-day federal government inquiry in Adelaide at which Rupert Murdoch, Frank Packer and an advertising conglomerate would be competing to determine which one should be nominated to run the sole, massively-profitable commercial television station scheduled for the city.
12.14 The diary, containing the minutiae of Pickering's daily entries, shows no further work on the Bailey case for March and April.
12.15 On Sunday May 4, just one working week before the Bailey trial, the diary entry says Pickering spent up to seven hours preparing for the television inquiry, with Monday afternoon also being devoted to further inquiry preparation.
12.16 On the Tuesday he spent the day at the inquiry, followed by a conference about the inquiry until 10.30pm. He was immersed in the inquiry for the rest of the week, devoting no time at all to the Bailey case.
12.17 But on Saturday May 10 Pickering played golf in the morning. "Pain in my left shoulder. Home reading the Sundown murder. Iris [his wife] put on a turn because I have not taken her out lately."
12.18 The entry suggests his concentration may have been affected.
12.19 Unlike the previous Sunday when he had spent seven hours in preparing for the television inquiry, the diary entry for Sunday May 11, with Bailey due to step into the dock the next day, reveals he played golf again, complaining about his left shoulder "which pained me all the round. Too much to drink before we started...Back to the library to work for an hour."
12.20 Then there were guests for a meal and only after entertaining dinner guests: "...to bed to read the Sundown brief."
12.21 So, on the day before the trial, having been affected by "too much to drink" that day and suffering from pain, the barrister entrusted with trying to save Bailey from the hangman went to bed after entertaining guests and spent a while reading the Bailey brief.
12.22 It was a far cry from the many hours preparing for the television inquiry and suggests a massive failure to obtain a detailed understanding of the case.
12.23 On Sunday May 18 he "Did some work on Bailey's case until 12" before playing golf. The prosecution case finished the next day, meaning Pickering would be faced with the monumental task of making the defence case on the Tuesday.
12.24 The deteriorating state of Pickering's state of mind and health reached a new low on the most crucial day of Bailey's trial. The QC had staked everything on keeping Bailey out of the witness box. Therefore, the entire defence case now rested on him making such a wholehearted and forensic speech that it would convince the jury to return a not guilty verdict.
12.25 This is how he recorded the address in his diary: "Woke feeling like a heart attack. Heart appeared to be operating very irregularly. Never felt like it before Bailey case. I started my address about 10 to 12. Felt better once I was on my feet. Finished about 3.30 and judge summed up till 5.30."
12.26 The lack of preparation even extended to the crucial appeal hearing - the final chance to save Bailey from the gallows.
12.27 The diary entry for June 2: "Back to the office to work at high pressure on Bailey's appeal for tomorrow. He certainly is getting good value for the £400 I received from his father."
12.28 He was having "to work at high pressure" because once again he had left such preparation to the last possible day after nine days in which he had driven to Melbourne and back to attend the Melbourne sittings of the television licence inquiry.
12.29 In her 2009 paperJustice Kiefel (see1.9) said "...there can be no lack of interest by a barrister in the full and complete preparation of the case at hand."
12.30 Pickering's daily entries in his diary make it abundantly and shamefully clear that there was a distinct lack of interest, application and time devoted to preparing Bailey's defence.
12.31 CONCLUSION: He thus failed to "obtain a detailed understanding of the matter, including the client's potential case". That failure is clear evidence of incompetence.
13. Pickering failed to give consideration to evidence likely to be required
13.1 Detective Hallahan, architect of the alleged confession, swore on oath that Bailey's wife had not been interviewed at Mt Isa Police Station late into the night of January 21/22 1958.
13.2 Bailey 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.”
13.3 If Pickering had researched media coverage of the crime he would have realised reporters on two newspapers could have been called regarding their stories that Bailey's wife had been interrogated at Mount Isa Police Station ion January 21 and after midnight.
13.4 The Courier-Mail of January 22 reported "Police early this morning were still questioning a 22-year-old woman."
13.5 And in Adelaide on the 22nd The Advertiser reported: "At midnight police were still questioning a 22-year-old woman, believed to be the man’s wife."
13.6 Two newspaper stories confirmed Patricia, highly strung, pregnant, distraught, with a young son to nurture and a husband who had been spirited away by the police to be charged with murder, had herself been questioned by the police late into the night.
13.7 The information could only have come from police in Mt Isa.
13.8 Pickering failed to call as witnesses the reporters who had written the stories. Testimony that Bailey's wife had, indeed, been questioned that night would have added to Bailey's credibility and done enormous damage to the credibility of Hallahan, the architect of the alleged confession.
13.9 CONCLUSION: Pickering failed to give consideration to evidence likely to be required.
14. One aspect of Pickering's incompetence was obvious to the appeal court
14.1 In addition to Bailey's account of his wife crying during a lengthy interrogation on the night of January 21/22 he also said he had been oppressed.
14.2 Bailey said in his statement: "I was taken away and locked up in a padded cell some time after midnight...During the night I was woken about every half hour by a torch being flashed in the trap and if I did not move, they came in and woke me...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."
14.3 Bailey may have underestimated the disruptions to his sleep. The Adelaide News reported on Saturday January 25 that police were keeping a special watch on Bailey and inspecting his cell every 15 minutes.
14.4 In a veiled criticism of Pickering, the appeal court noted that he had failed to cross-examine on these critical issues.
14.5 The appeal court finding reads: "The allegations, in the statement by the prisoner to the jury, that during the night of January 21st-22nd his rest was disturbed every half hour by flashing a torch on him and waking him, and that he could hear his wife crying, and other allegations suggesting improper pressure, were never referred to in cross-examining the police witnesses, and no intimation was ever given until the statement was made in Court..."
14.6 Pickering's decision to ignore Bailey's statement about oppression resulted in the appeal court finding, that: "...the jury seems to have disregarded the unanswered allegations."
14.7 CONCLUSION: Pickering was incompetent in failing to raise the allegation of oppression effected by his client being woken throughout the night prior to being interrogated about the Sundown Murders and in failing to call witnesses, such as the reporter who obtained the information about Bailey's cell being checked every 15 minutes.
OTHER FACTORS THAT SHOULD BE TAKEN INTO CONSIDERATION
15. Detective Glen Hallahan was not of good character
15.1 In addition to Pickering's gross incompetence it is submitted there is evidence to suggest Detective Hallahan lied at the Bailey trial, thus adding to the substantial miscarriage of justice suffered by Bailey.
15.2 The first example relates to whether or not Bailey's wife was questioned on the night of January 21/22 (see item 13).
15.3 Despite the confirmation of this in two newspapers and Bailey's account of the questioning in his statement, Hallahan swore Mrs Bailey had not been questioned that night.
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.”
15.4 Despite evidence to the contrary, Hallahan said he had no idea Bailey was wanted in connection with the Sundown Murders when he kept watch on Bailey's parked DeSoto car for more than an hour on January 21 before taking him to Mt Isa Police Station.
15.5 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."
15.6 But on January 21 the Adelaide News carried a story headlined: "Police now hunting black 1938 DeSoto" over a story that read: "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."
15.7 Other newspapers carried similar stories.
15.8 Hallahan was the officer in charge of Mt Isa CIB in January 1958.
15.9 Another discrepancy in Hallahan's evidence arose in cross-examination when Hallahan was asked if he had discovered Bailey was linked to the Sundown Murders before he started to question him on January 22, the day after the arrest.
15.10 Answer: "The only thing I had ascertained was that on the day preceding the murder, a similar type car and caravan was seen about 200 miles south of the murder site. I had no other information."
15.11 And Roderic Chamberlain QC, for the prosecution, emphasised Hallahan's claim by saying that up to the first confession on the afternoon of January 22 Bailey might have been a witness in the case. The police had no idea of his relation to the case, he said.
15.12 But in his memoir published in 2010 by the South Australian Police Association, Detective Hopkins 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]
15.13 Pickering 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.”
15.14 But on January 22 the Adelaide Advertiser reported: "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."
15.15 Mr McKinna was the South Australian police commissioner.
15.16 Were these blemishes typical of Hallahan's character?
15.17 Eight days after Bailey was found guilty, Hallahan arrested a man in Queensland who went on to complain to the Full Court of Queensland that he had pleaded guilty to a charge as "the result of enticement or inducement" by Hallahan.
15.18 Hallahan denied the allegation on oath but the three judges felt so concerned about the case that they laid down a course of action all magistrates should follow if a defendant did not have a legal representative and pleaded guilty.
15.19 The case went into the legal records as Hallahan v Kryloff, ex-parte Kryloff [1960] QWN 18 and has been frequently quoted in Queensland judgements.
15.20 Retired Queensland District Judge Warren Howell became a Queensland barrister in November 1965. He has submitted: "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."
15.21 Former President of Queensland Parole Board and retired barrister Francis Lippett has submitted: "When a Queensland detective, I was put to work with Glen Patrick Hallahan for about three weeks until he requested another partner, as we had quite different standards and attitudes. Throughout my Police service and afterwards, Hallahan, another detective named Murphy and Terry Lewis who became the Police Commissioner, were reputed to be involved in serious criminal and corrupt activity. It was not just inappropriate office gossip, but a series of accusations by a number of respected detectives, although hard evidence was lacking. His propensity to fabricate evidence was confirmed by at least three Courts, as detailed by the petitioner."
15.22 He also says: "It is not suggested that the Supreme Court erred in 1958. However it is now possible to consider the evidence in the light of what is now known about the activities of Glen Patrick Hallahan, without whose evidence the prosecution would have surely failed."
15.23 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 no theft had taken place, resulting in Cavanagh receiving a pardon (pp126/127 and 340/341 Queensland Hansard 1961, Sunday Truth May 14 1961).
15.24 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 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).
15.25 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.
15.26 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. Campbell complained the conviction and order were obtained by fraud and duress. He swore Hallahan had threatened him with a false charge carrying a much higher maximum sentence than vagrancy and had said that if he pleaded guilty to vagrancy Hallahan 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)
15.27 It would have been out of character for Hallahan to have told the truth, the whole truth and nothing but the truth at the Bailey trial.
15.28 The fact that in the five years immediately after the Bailey trial Hallahan was prepared to fabricate confessions, give false evidence and lie to courts could not have been adduced at the time.
15.29 Nevertheless, it should have been clear to anyone analysing Bailey's alleged confession that it was not true and had probably been fabricated.
15.30 Bailey would have had no reason to identify the Bowman party's Remington as his in a confession. But when Hallahan was writing the alleged confession he was unaware of the Remington and believed the only rifle at the scene was a Huntsman because police had learned that months before the murders Bailey had bought a Huntsman. However, Bailey said in his statement to the court he had sold that rifle.
15.31 Hallahan was aware the Bowman party had been shot. But he did not know details of the injuries. So the descriptions of the shootings in the alleged confession bore no resemblance at all to what had happened. A genuine confession would obviously have contained the facts.
15.32 Police had failed to establish a motive for the murders. A genuine confession should have included the reason why a murderer killed three people so brutally. Hallahan got round this problem by having Bailey say he shot one person by accident and then had a blackout.
15.33 Pickering failed to put these points to Hallahan.
15.34 CONCLUSION: There were pointers to Detective Hallahan's inability to tell the truth, the whole truth and nothing but the truth in his evidence at the Bailey trial; two outstanding members of the legal fraternity have submitted further evidence regarding Hallahan's character; and Hallahan's use of false confessions and perjury as documented in the Petition and Addendum to the petition for the prerogative for mercy for Bailey in 2022.
16. The jury was not warned about the lack of corroboration
16.1 The jury was not warned of the dangers of convicting an accused where a disputed admission is the only, or substantially the only, evidence.
16.2 The prosecution offered no direct corroboration of the alleged confession.
16.3 Although Pickering did not cross-examine witnesses about the alleged confession nor dispute it, Bailey was vehement in his denial.
16.4 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)
16.5 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)
16.6 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)
16.7 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.
16.8 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.
16,9 CONCLUSION: In the interests of achieving a fair trial, and no matter what case history existed at the time, the jury should have been advised of the danger of convicting on an alleged confession which was rejected by the defendant and contained major contradictions.
17. The prosecution invented a motive for the murders with no supporting evidence
17.1 In summing up, 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.
17.2 Prosecution counsel told the jury that counsel’s right was no more than to submit argument on what was proved in evidence.
17.3 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.”
17.4 Pickering 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.”
17.5 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.”
17.6 But this act, denied by Bailey, was portrayed in the alleged confession as an afterthought on the day after the murders and not a motive for the killings.
17.7 The invented motive by the prosecution in the summing up alleged: “The whole situation points clearly at an attempt at robbery which went wrong.”
17.8 There is no such clarity.
17.9 Prosecution counsel alleged: “…Bailey held up the three travellers for money at gunpoint…”
17.10 This is pure invention but stated as a fact.
17.11 “…Whelan tried to get the Remington rifle but Bailey shot him in the back.”
1712 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.
17.13 “Bailey grabbed that rifle from Whelan…”
17.14 There had been no evidence of the accused grabbing a rifle from Whelan.
17.15 “…put in perhaps three more cartridges and tried to shoot them but the rifle jammed.”
17.16 This is pure invention which bears no resemblance to any of the evidence.
17.17 The judge’s summing up did little if anything to dismiss this invention from the jury’s minds.
17.18 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.”
17.19 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.
17.20 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.”
17.21 The jury may well have taken this to suggest that the only conceivable motive was the theory advanced by the prosecution.
17.22 Pickering failed to point out to the jury that this was yet another contradiction of the only direct evidence.
17.23 CONCLUSION: The judge should have directed the jury to disregard the suggested motive as being without foundation. It may well be that the jury was influenced by the prosecution theory and the judge's failure to condemn it.
18. A substantial miscarriage of justice
18.1 In addition to the 17 conclusions supporting a substantial miscarriage of justice occurred in the case of R v Bailey, this analysis reaches additional conclusions enumerated below.
18.2 In TKWJ v The Queen [2002] HCA 46; 212 CLR 124; 76 ALJR 1579; 193 ALR 7; 133 A Crim R 574, Gaudron J said: “The question whether there has been a miscarriage of justice is usually answered by asking whether the act or omission in question “deprived the accused of a chance of acquittal that was fairly open”.
18.3 This analysis has established there were many acts and omissions in this case which deprived Bailey of an acquittal that was manifestly and fairly open.
18.4 Gaudron also said in the same case: "One matter should be noted with respect to the question whether counsel's conduct is explicable on the basis that it resulted or could have resulted in a forensic advantage. That is an objective test. An appellate court does not inquire whether the course taken by counsel was, in fact, taken for the purpose of obtaining a forensic advantage, but only whether it is capable of explanation on that basis."
18.5 Pickering's conduct, involving many failures, cannot be explained by an argument that it was capable of resulting in a forensic advantage.
18.6 In a 2016 paper "Incompetence of Counsel as a Ground for Appeal in the CCA" prepared for a legal conference, Peter Guirguis, Senior Solicitor, Legal Aid NSW, an accredited specialist in criminal law, analysed Nudd v The Queen [2006] HCA 9.
18.7 Guirguis held: "There was consensus among the members of the Court that, if the accused had been deprived of a real chance of an acquittal by reason of the effect of counsel’s incompetence, then the verdict could not stand."
18.8 It therefore follows from the above analysis of Nudd v The Queen that Bailey was deprived of a real chance of an acquittal by reason of the effect of counsel’s incompetence as detailed in this analysis and, therefore, the verdict should not stand.
18.9 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 …”
18.10 Pickering's failures as detailed in this analysis make it abundantly clear that he failed to abide by and uphold professional rules of conduct by failing in his obligation to "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…”
18.11 His failures produced a trial that did not meet the minimum standards of fairness required of a trial.
18.12 Failure to conduct the defence properly is inconsistent with the notion of a fair trial according to law, which of itself constitutes a miscarriage of justice.
18.13 Pickering's failings as itemised comprised flagrant incompetence, egregious errors, significant faults and negligence which contributed to a gross miscarriage of justice.
18.14 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)
18.15 On the basis of all the foregoing it is incumbent on the South Australian justice system not to wash its hands of this gross miscarriage of justice but to do whatever is necessary in order to re-examine R v Bailey with a view to quashing the conviction and issuing a posthumous.pardon.
18.16 A combination of gross incompetence by defence counsel Arthur Pickering QC; a prosecution case based on only one piece of direct evidence which contradicted the facts; and other factors enumerated in the analysis, resulted in a gross miscarriage of justice.
18.17 in the words of retired Queensland District Judge Warren Howell: "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."
This request is accompanied by the submission of his honour Warren Howell which was included in the Addendum to the petition for the prerogative for mercy for Bailey dated May 2022.
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.
Signed