Goldingham, Claudine --- "Miscarriage of Justice: And the truth will set you free" [2002] AltLawJl 51; (2002) 27(3) Alternative Law Journal 140
MISCARRIAGE OF
JUSTICE
And the truth will set you
free
CLAUDINE GOLDINGHAM[*] examines the overturn of a 1963 manslaughter conviction in Western Australia.
On 25 February 2002 Court One in the Supreme Court of Western Australia was filled with the sound of clapping and cheering. This unusual event signalled the end of a fascinating episode in Western Australian legal history: 39 years after John Button was convicted of the manslaughter of his fiancé, Rosemary Anderson, his conviction had been overturned by the Western Australian Court of Criminal Appeal.[1]
The case
On the night that Anderson died, she and Button had been playing cards at his parent’s house. Following an argument, Anderson stormed out and began walking home. Button pursued her in his car to apologise but she insisted on walking home alone. He later found Anderson lying gravely wounded on the side of the road. Despite Button having sought immediate help at a nearby doctor’s surgery, Anderson later succumbed to her injuries.
Button became an immediate suspect and was questioned by police. He made four statements to the police: three of which stated that he did not know what had happened to Anderson, and suggested that she may have been struck by a ‘hit and run’ vehicle. This tallied with what he had earlier told the doctor to whom he took Anderson for treatment. Button’s final statement was taken in the context of police advice that Anderson had died in hospital. Button immediately broke down saying: ‘What have I done — it’s all my fault’. When asked ‘Do you mean she was struck by your car?’ Button answered ‘Yes’. In the early hours of that morning Button made his final statement to the police in which he said that he had driven the car at Anderson to scare her. Button later said of this statement:
As I signed both the statement and the confession, I justified it by telling myself that they were never going to believe me, fully confident that no one could be charged for something that they had not done. I could see no danger in making the confession and thereby removing myself from any further physical and mental abuse.[2]
Button was subsequently charged with the wilful murder of Rosemary Anderson. Despite facing substantial pressure to plead guilty to manslaughter, Button protested his innocence. In his book Button describes a visit from his lawyer Ken Hatfield prior to his trial in 1963:
It was a few days later when Ken Hatfield, my lawyer, came to see me. Placing his hands around my neck and lifting me off the chair, he tried to make me appreciate the severity of the situation that I was in. ‘They will hang you, John. Tell me if you did it and I can get you off on the lesser charge of manslaughter.’[3]
Following his trial Button was convicted of manslaughter and sentenced to imprisonment for 10 years.
Not long after Button’s conviction Eric Edgar Cooke, a remand prisoner charged with murder, confessed to Anderson’s murder and to five other ‘hit and run’ incidents. Having been made aware of these confessions, Button applied for an extension of time within which to lodge an appeal against his conviction. At the extension hearing before the Court of Criminal Appeal, Cooke was called to give evidence that he had been the driver of the car that had struck Anderson. By this time Cooke had been convicted of another murder and was awaiting execution. Button sought to rely on the similar fact evidence of five other women Cooke had confessed to running down between September 1958 and May 1960. However, the Court did not accept Cooke’s evidence saying that:
The claim by Cooke to have killed the girl Anderson, is so bad at its core and so obviously fabricated, that the admission of the other unconnected acts could not help the applicant against whom the evidence is very strong.
Button’s application for an extension of time within which to appeal was therefore dismissed and an application for special leave to appeal to the High Court was later refused.
The appeal
Button was released from prison on parole after having served five years. In the years that followed he continued to protest his innocence. A devout Christian, Button put his faith in God; the answer to his prayers came in the form of journalist Estelle Blackburn. On hearing Button’s story, Blackburn devoted herself to collecting evidence to prove his innocence. Blackburn’s research resulted in the critically acclaimed publication Broken Lives.
Part of the evidence collected by Blackburn was fresh forensic evidence based on tests conducted by renowned crash test expert Russell Haight on a Simca — a car similar to the car Button was driving on the night Anderson was killed. He also conducted tests on a Holden similar to the car that Cooke professed to have driven at Anderson. Blackburn enlisted the assistance of Tom Percy QC and solicitor John Davies, who agreed to work on the matter pro bono. They successfully applied to the Attorney-General of Western Australia to refer the matter back to the Court of Criminal Appeal under s.140 (1) of the Sentencing Act 1995 (WA) which provides for an appeal against conviction to be re-heard.
The appeal was based on the ‘fresh’ evidence that had been collected since the original trial. Apart from the crash test evidence, the Court was presented with further evidence of surviving victims of Cooke’s ‘hit and runs’, evidence of a witness who attested to the positioning of Anderson’s body, evidence of a witness who had sighted Cooke in the area of the crime, and medical evidence that the injuries sustained by Anderson were not consistent with having been caused by a vehicle travelling at the speed described in Button’s confession. The appeal was vigorously defended by the state Director of Public Prosecutions.
The decision
In February this year, the Court delivered its decision allowing the appeal. The Court accepted the evidence that there had been significant advances in the investigation of vehicle crashes and held that the Court was entitled to re-examine a previous conviction when new technologies indicated that a miscarriage of justice may have occurred.[4] The Court found this evidence compelling. Button had proved to the Court’s satisfaction that the damage sustained by the Simca could not have been the result of it hitting a pedestrian, but was consistent with Button’s claim of having collided with a small car a month earlier. The tests also revealed that the damage sustained by the Holden which Cooke stated that he was driving was consistent with Cooke’s confession to having hit a pedestrian.
When considering the evidence of Cooke’s other hit and run victims the Court held that the rule against the admissibility of similar fact evidence must be applied stringently when the evidence is led to implicate an accused person. However, when evidence is led to exculpate an accused the Court found that there was no requirement that the probative value of the evidence outweigh the prejudicial effect of the evidence. The question is merely one of relevance: provided there was sufficient similarity between the two acts to show a real possibility that the same person, and not the accused, was involved in the offence, then the evidence is relevant. The Court found that the evidence given by the other ‘hit and run’ victims added credibility to the confessions made by Cooke and that circumstances of these incidents bore a striking similarity to those surrounding Anderson’s death. The Court held that this evidence standing alone might be sufficient to raise a reasonable doubt in the mind of a jury but coupled with the crash test evidence there was no other conclusion than to find the verdict unsafe and unsatisfactory.
The Court considered the fact that Cooke had make a number of confessions to the murder of Anderson, including a ‘gallows’ confession approximately 15 minutes before being executed on 26 October 1964. The Court held, however, that the confessions made by Cooke to the murder of Anderson, other than the confession given under oath at the appeal, were inadmissible on the grounds of hearsay. The Court declined to hold that there was a general exception to the rule against hearsay on the grounds that the declaration was made against penal interest.
For Button, the decision was the culmination of a 39-year struggle to prove his innocence;[5] however, it may also have important ramifications for another West Australian man. Like Button, Darryl John Beamish also served time in prison for a murder that Eric Edgar Cooke had confessed to. The only evidence to link Beamish to the murder was a signed confession. Beamish is a deaf mute who has since stated that this confession was obtained under duress. The legal team that put forward the Button appeal are currently making an application to the Attorney-General to refer this matter for rehearing before the Court of Criminal Appeal.
[*] CLAUDINE GOLDINGHAM
Claudine Goldingham was articled to Tom Percy QC at the time of the appeal.
[1] Button v The Queen [2002] WASCA 35, delivered 25 February 2002.
[2] Button, John, Why me Lord? The John Button Story, The Digital Document Company, Perth, 1998, p.49.
[3] Button, John, above, ref 2, p.54
[4] The Court referred to the Birmingham Six case, McIlkenny v The Queen (1991) 93 Cr App R 287.
[5] I was fortunate enough to attend the victory celebrations at the Irish Club on the night that the Court’s judgment was delivered. It was a night of poetry, music, Guinness and laughter. John Button signed the first edition of the West Australian for me with the news of the acquittal on the front page. His message read simply ‘Joy at last’.