It has taken more than two years for South Australian Attorney-General Kyam Maher to respond to my application for the miscarriage of justice involving Raymond John Bailey to be referred to the South Australian Court of Appeal.
In denying it he has failed to answer on a point-by-point basis 18 specific aspects of the trial, each of which points to a miscarriage of justice.
And his tardiness displays a disgraceful lack of respect to retired judge His Honour Warren Howell who contributed to my application.
This was not a minor issue. Bailey was found guilty of murdering Thyra Bowman, 43, one of three
people killed while camping in remote Northern Territory bushland in December 1957 in what became known as the Sundown Murders.
He was hanged in 1958 despite many obvious flaws in the prosecution case.
Mr Maher’s three-page letter rejecting my application ignores the fact that Bailey pleaded not guilty but his defence counsel told the jury Bailey was guilty.
He fails to deal with the fact that the descriptions of the killings in Bailey's alleged confession, which was the only direct evidence presented to the jury, were completely contradicted by the post mortems on the bodies of the victims.
He fails to deal with the fact that the transcript of the trial reveals Bailey could not have been guilty because his shoe size did not match prosecution evidence of the size of footprints left by the murderer at the murder scene.
He fails to deal with prosecution evidence that a woman had driven a car to dispose of the three bodies despite Bailey's statement that his wife, who was the only female identified as being at the site, did not know how to drive.
He fails to deal with a police statement which mis-identifies the rifle used in the murders.
In addition, he ignores a submission by His Honour Warren Howell who advised Mr Maher as part of the application “It would be unsafe, unsatisfactory and dangerous in the administration of justice for a verdict of guilt to stand.”
I submit that all the negative reasons advanced by the attorney-general in his letter as to why the case should go no further are massively outweighed by what he totally ignores in his reasoning.
The negative reasons include arguments such as points made in the application are "armchair criticisms" or as needing "expert legal opinion ".
The question has to be asked: why did it take more than two years to fashion a response which, for the most part, deals with legal process rather than the application?
A possible explanation is that it was drafted by a department determined to find a reason to reject the application for a referral and that, given the 18 strong and detailed points advanced in the application, this was an enormously difficult task requiring many drafts
This would explain why key points advanced in the application have been studiously avoided.
I have asked him:
Why do you consider it acceptable that the finding of guilt should stand despite the fact that, according to the trial transcript, his shoe size did not match the actual murderer’s footprints found at the murder scene?
Why do you not accept that there was a miscarriage of justice when Bailey’s defence counsel told the jury his client was guilty despite him pleading not guilty?
Why do you not consider there was a miscarriage of justice when Bailey was found guilty of murder despite every detail about the killings of three people contained in his alleged confession – the only direct evidence presented by the prosecution –being contradicted by the prosecution’s expert post mortem evidence?
Why do you believe there would be difficulty in demonstrating defence counsel’s incompetence when six months of his own diary entries comprise compelling evidence?
How and why did it take you more than two years to fashion a letter which so studiously avoids dealing with the evidence supplied in the application?
END
Background information containing further, detailed assessment of the A-G’s letter:
The attorney-general says: "It is important to be clear that a referral results in a substantially different process from that involved in a petition for the purposes of seeking a pardon. Consideration of a petition for the purposes of the potential exercise of the prerogative of mercy is an administrative process undertaken by the Executive. While consideration of whether to make a reference to the Court of Appeal also involves executive decisions, in the event a case is referred it will become a judicial proceeding before the Court. This raises different considerations."
But having said that, he appears to have used determinations made regarding the two petitions I submitted to enable him to rule out evidence and submissions made in those petitions.
In this regard he mentions: "Your correspondence of May 2023 arranges the matters stated to support a reference under 18 categories. Many of these repeat matters put earlier in support of the earlier 2014 and 2022 petitions seeking a posthumous pardon but are now cast in the form of allegations of incompetence on the part of defence counsel for Mr Bailey, Mr AL Pickering QC."
He says: "As with any appeal, it would be the responsibility of the appellant to demonstrate error or some miscarriage of justice in the court below warranting the setting aside of a conviction."
Surely, it would have been possible for us to find a suitably qualified person to demonstrate the many errors and miscarriages of justice had the request been allowed.
He says as part of the reasoning for rejecting the request: "In the usual course, these processes would require an appellant to obtain expert legal advice and instruct counsel, and that course would plainly be frustrated if the 'appellant' whose conviction was the subject of a reference is deceased."
But that "frustration" is not insurmountable and should be no reason for allowing a gross miscarriage of justice to remain unchallenged.
He says: "A reference may be expected to involve the Court in a significant undertaking, requiring a significant commitment of the Court's time and resources. It would not be appropriate for me to make a reference unless satisfied that there is utility in requiring the Court to do so. In circumstances where over 60 years has elapsed and all relevant parties and witnesses are deceased, the question of utility weighs heavily against a referral."
It may "weigh heavily" but, again, that is no reason to deny the opportunity to correct the gross miscarriage of justice as outlined in the request for a referral. Such "utility" is plainly demonstrated in several of the 18 points outlined in the submission but entirely ignored by the Attorney-General in his response.
He writes: "In broad terms, what is suggested is that if the matters had been addressed by defence counsel in a different manner, they would have fundamentally undermined the prosecution case and likely led to an acquittal. Of course, much of this relies on acceptance that what Mr Bailey said in his unsworn statement was the truth and could have been established had counsel behaved differently. An allegation of counsel incompetence at trial is not one lightly accepted by the courts, which have consistently warned against allowing appeals based on 'armchair criticism' of the conduct of the trial judge or trial counsel."
This attempt by the Attorney-General to suggest "in broad terms" the entire application depends on the success or failure to accept defence counsel's incompetence ignores incontrovertible evidence of a gross miscarriage of justice contained in several of the submission's 18 points as itemised later in this assessment of the Attorney-General's decision.
In addition, the Attorney-General says courts do not lightly accept allegations of counsel incompetence. In other words, while not lightly accepting such allegations, they are, indeed, accepted in some circumstances, presumably when the allegations can be substantiated. Thus, this is no reason to reject the submission.
In denying it he has failed to answer on a point-by-point basis 18 specific aspects of the trial, each of which points to a miscarriage of justice.
And his tardiness displays a disgraceful lack of respect to retired judge His Honour Warren Howell who contributed to my application.
This was not a minor issue. Bailey was found guilty of murdering Thyra Bowman, 43, one of three
people killed while camping in remote Northern Territory bushland in December 1957 in what became known as the Sundown Murders.
He was hanged in 1958 despite many obvious flaws in the prosecution case.
Mr Maher’s three-page letter rejecting my application ignores the fact that Bailey pleaded not guilty but his defence counsel told the jury Bailey was guilty.
He fails to deal with the fact that the descriptions of the killings in Bailey's alleged confession, which was the only direct evidence presented to the jury, were completely contradicted by the post mortems on the bodies of the victims.
He fails to deal with the fact that the transcript of the trial reveals Bailey could not have been guilty because his shoe size did not match prosecution evidence of the size of footprints left by the murderer at the murder scene.
He fails to deal with prosecution evidence that a woman had driven a car to dispose of the three bodies despite Bailey's statement that his wife, who was the only female identified as being at the site, did not know how to drive.
He fails to deal with a police statement which mis-identifies the rifle used in the murders.
In addition, he ignores a submission by His Honour Warren Howell who advised Mr Maher as part of the application “It would be unsafe, unsatisfactory and dangerous in the administration of justice for a verdict of guilt to stand.”
I submit that all the negative reasons advanced by the attorney-general in his letter as to why the case should go no further are massively outweighed by what he totally ignores in his reasoning.
The negative reasons include arguments such as points made in the application are "armchair criticisms" or as needing "expert legal opinion ".
The question has to be asked: why did it take more than two years to fashion a response which, for the most part, deals with legal process rather than the application?
A possible explanation is that it was drafted by a department determined to find a reason to reject the application for a referral and that, given the 18 strong and detailed points advanced in the application, this was an enormously difficult task requiring many drafts
This would explain why key points advanced in the application have been studiously avoided.
I have asked him:
Why do you consider it acceptable that the finding of guilt should stand despite the fact that, according to the trial transcript, his shoe size did not match the actual murderer’s footprints found at the murder scene?
Why do you not accept that there was a miscarriage of justice when Bailey’s defence counsel told the jury his client was guilty despite him pleading not guilty?
Why do you not consider there was a miscarriage of justice when Bailey was found guilty of murder despite every detail about the killings of three people contained in his alleged confession – the only direct evidence presented by the prosecution –being contradicted by the prosecution’s expert post mortem evidence?
Why do you believe there would be difficulty in demonstrating defence counsel’s incompetence when six months of his own diary entries comprise compelling evidence?
How and why did it take you more than two years to fashion a letter which so studiously avoids dealing with the evidence supplied in the application?
END
Background information containing further, detailed assessment of the A-G’s letter:
The attorney-general says: "It is important to be clear that a referral results in a substantially different process from that involved in a petition for the purposes of seeking a pardon. Consideration of a petition for the purposes of the potential exercise of the prerogative of mercy is an administrative process undertaken by the Executive. While consideration of whether to make a reference to the Court of Appeal also involves executive decisions, in the event a case is referred it will become a judicial proceeding before the Court. This raises different considerations."
But having said that, he appears to have used determinations made regarding the two petitions I submitted to enable him to rule out evidence and submissions made in those petitions.
In this regard he mentions: "Your correspondence of May 2023 arranges the matters stated to support a reference under 18 categories. Many of these repeat matters put earlier in support of the earlier 2014 and 2022 petitions seeking a posthumous pardon but are now cast in the form of allegations of incompetence on the part of defence counsel for Mr Bailey, Mr AL Pickering QC."
He says: "As with any appeal, it would be the responsibility of the appellant to demonstrate error or some miscarriage of justice in the court below warranting the setting aside of a conviction."
Surely, it would have been possible for us to find a suitably qualified person to demonstrate the many errors and miscarriages of justice had the request been allowed.
He says as part of the reasoning for rejecting the request: "In the usual course, these processes would require an appellant to obtain expert legal advice and instruct counsel, and that course would plainly be frustrated if the 'appellant' whose conviction was the subject of a reference is deceased."
But that "frustration" is not insurmountable and should be no reason for allowing a gross miscarriage of justice to remain unchallenged.
He says: "A reference may be expected to involve the Court in a significant undertaking, requiring a significant commitment of the Court's time and resources. It would not be appropriate for me to make a reference unless satisfied that there is utility in requiring the Court to do so. In circumstances where over 60 years has elapsed and all relevant parties and witnesses are deceased, the question of utility weighs heavily against a referral."
It may "weigh heavily" but, again, that is no reason to deny the opportunity to correct the gross miscarriage of justice as outlined in the request for a referral. Such "utility" is plainly demonstrated in several of the 18 points outlined in the submission but entirely ignored by the Attorney-General in his response.
He writes: "In broad terms, what is suggested is that if the matters had been addressed by defence counsel in a different manner, they would have fundamentally undermined the prosecution case and likely led to an acquittal. Of course, much of this relies on acceptance that what Mr Bailey said in his unsworn statement was the truth and could have been established had counsel behaved differently. An allegation of counsel incompetence at trial is not one lightly accepted by the courts, which have consistently warned against allowing appeals based on 'armchair criticism' of the conduct of the trial judge or trial counsel."
This attempt by the Attorney-General to suggest "in broad terms" the entire application depends on the success or failure to accept defence counsel's incompetence ignores incontrovertible evidence of a gross miscarriage of justice contained in several of the submission's 18 points as itemised later in this assessment of the Attorney-General's decision.
In addition, the Attorney-General says courts do not lightly accept allegations of counsel incompetence. In other words, while not lightly accepting such allegations, they are, indeed, accepted in some circumstances, presumably when the allegations can be substantiated. Thus, this is no reason to reject the submission.
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