FLINDERS SYMPOSIUM ON MISCARRIAGES OF JUSTICE

7 – 8 NOVEMBER 2014

CORRECTING HISTORY

THE BUTTON AND BEAMISH CASES

Introduction

I once supported the death penalty.

It had a fundamental righteousness about it, an eye-for-an-eye type of justice, with a superficial but immediate appeal to it.

A fortuitous sequence of events was however to change my mind as I came to close quarters with two men and a woman who had each experienced the shadow of the gallows.

Even though we haven’t hanged anyone in since 1967, and in WA since 1964, those unlucky enough to be convicted of wilful in were still sentenced to death until 1984, when the mandatory penalty was removed from the Criminal Code.

The last one of those was a country woman named Brenda Hodge, who was convicted of the shooting of her abusive de facto husband in my home town of Kalgoorlie in 1984. She was my client and I was junior (very junior) counsel to Henry Wallwork QC at her trial.

We all believed that she wouldn’t hang, but watching on as a Mr Justice Pidgeon pronounced the litany of the death sentence was something I shall never forget.

It was a galling experience; like something out of a movie, but it was real, and had the full force of the law. Technically she was a dead woman walking. The terror in her eyes as the sentence was passed, and sitting with her in the cell afterwards, will haunt me forever. I had started to reassess my views on the death penalty.

But they didn’t hang Brenda Hodge. She survived prison, was recently released, and has written a book about the experience. At the time of her trial, the concept of provocation, 2 as we now understand it, was quite different. Had she been tried today, there is every prospect she might have been acquitted.

Fifteen years later I came to meet a man called John Button, and took on his case against what appeared to be a wrongful conviction in 1963 for the death of his girlfriend. He had not been sentenced to death, having only been convicted of the alternate offence of manslaughter, but he did stand trial for wilful murder in an era when a conviction for that offence meant he would almost certainly have been hanged.

He won, and was ultimately acquitted in 2002. The Court of Appeal finding on the basis of fresh evidence that he had been wrongly charged over another man’s crime. But the reality of the fact that he came within an ace of being executed hardened my opposition the death penalty. It was a little too permanent for my liking …

Through my involvement in Button’s case I was asked to take on the re-opening of ’s case in 2004. He was a mentally impaired youth who had been sentenced to death in 1961, and was extremely fortunate to have been reprieved from hanging.

Only the fact of his age (he was 20 when he entered death row at ) and the fact that he was a deaf mute saved him. Meeting Beamish for the first time was a bewildering experience for me, knowing that we as a community almost murdered him for something I was sure he didn’t do. The fifteen years prison he wrongly served for the offence was hard to get my head around, but nothing compared to the fact that he had been sentenced to death and was only spared his execution by the accident of his own physical disabilities.

The Court of Appeal was also to reach this conclusion in 2005. He had been wrongly convicted for the crime of another man. The perpetrator was ironically the same man who had been the true killer in Button’s case. My involvement in this case galvanised me (if any galvanisation were still required) in my resolve that there could never be any justification for the process of a community putting one of its own members to death.

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Some years ago, I asked the late Leo Wood, one of Perth’s leading criminal lawyers of the 50’s, 60’s and 70’s, what he thought of the death penalty. (He had represented several men sentenced to death, although none were actually executed). He didn’t agree with it, he said, on the grounds that it was “too hard on the lawyers…”

Obviously not all persons convicted of capital crimes are wrongly convicted. The vast majority of these cases will involve the right person. But what of those that don’t? Where the system gets it wrong?

Proponents of capital punishment assure us that the possibility of a mistake is so unlikely that we need not worry about it.

I can’t subscribe too that theory. Nor, I suspect, would at least three of my former clients.

Preface

On the 26th October 1964, shortly before 8.00am, 33 year old was sitting in the death cell at .

He had spent the last two hours with the prison Chaplain; the Reverend George Jenkins.

At five minutes to eight the Chaplain asked Cooke if he had a last wish. Yes, he replied, and asked the Minister if he would arrange a present, a bicycle, for his eldest son, Tony.

The minister undertook to attend to this request.

Unprompted, Cooke then reached for the Minister’s bible, taking it out of the Minister’s hand. Holding it fervently Cooke said “I swear before almighty God that I killed Anderson and Brewer”. It was not the first time he had said this, but given the hour, it took on some special significance.

A few moments later a hood was placed over his head and he was taken the 42 steps from the cell to the gallows, and within a minute was dead.

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The Reverend Jenkins recorded Cooke’s last words verbatim in a Statutory Declaration some days later. Words that were to cause a controversy in legal, historical and political circles that would not be resolved for over 40 years.

How did I come to be involved in these cases?

In late 1998 a journalist whom I hardly knew (other than by reputation as a writer with the West and as a former ABC journalist and presenter) made an appointment to see me.

I had no idea what she wanted, but it was a phone call that was to change my life, and to a small extent the law and the recorded history of the State of .

I had met Estelle Blackburne briefly on 2 occasions over the past decade but knew nothing of the fact that she had spent the past 6 years researching the story of Eric Edgar Cooke generally, and the case of John Button specifically. Neither did I know that in her pursuit of Button’s case she had given up full time work and already sold almost all of her material assets too keep the project and the book afloat.

She said she has some good news and some bad news for me.

She had apparently been referred to me by Judge Alan Fenbury who had reportedly said that I was the sort of idiot who might want to be involved in this kind of matter. His Honour obviously knows a soft touch when he sees one.

She wanted me to be involved in a Murder appeal, which might require about a million dollars worth of work.

What, I thought could be bad about that?

No, that was apparently the good news.

The bad news was that I would have to do it for free…

Before I had her escorted from my Chambers, she asked if I would read her book (Broken Lives) which was just about to be released, before dismissing the idea out of hand. She gave me an advance copy. Out of courtesy I said I would try and find time to read it.

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I did however dismiss it out of hand. I couldn’t imagine that I would be seeing her or the book again.

Shortly after that I was scheduled to go somewhere on circuit, and being short of reading material tossed the book in my bag thinking that I might read it as a last resort if I couldn’t buy something better at the airport.

I did however read the book, and it and the rest, as they say in the classics, is history.

After I returned, I couldn’t get back to Estelle quick enough. I had the embarrassing task of having my secretary try and trace her number, which I hadn’t bothered to keep, so remote had I thought the prospect of ever wanting to speak to her again.

I tracked her down and told her that I was “in”. All we needed was a solicitor crazy enough to take on all the work that was going to be involved in resurrecting a 40 year old case from scratch.

I suggested that she should approach Jon Davies, then practising in the amalgam. He was about the only person I knew who might have been nearly mad enough to say yes.

But say yes he did, and the Button case was up and running. Over the next 6 years Jon Davies’ efforts on these cases was truly Herculean. Without him, the two appeals might never have happened.

After about a year, when the Attorney General Peter Foss had given his fiat for the matter to go back to Court, Estelle came up with the idea that we should take on Beamish’s case as well.

As if one wasn’t enough.

We didn’t know for sure if Darryl Beamish would have anything to do with us or any proposed appeal, but Estelle somehow tracked him down. And then there were two…

The very short pastiche of the two cases that I am about to embark upon in no way attempts to do justice to the near decade of work done on these matters by , nor to the classic lead judgment of Malcolm CJ in Button (which ran to nearly 100 pages in the WAR’s) and the joint judgment of the Court in Beamish. 6

Darryl Beamish

Although the Beamish appeal was heard after the Button appeal, it is probably easier to understand the story of Eric Cooke by looking at that case first.

Darryl Beamish, a deaf mute, was convicted on the 15th August 1961 of the wilful murder of 22 year old Jillian Brewer at the Brookwood Flats in Cottesloe on the 20th December 1959. The murder was a savage and brutal one, apparently motiveless and with sexual overtones. But the killer left no clues.

There was no direct or forensic evidence linking Beamish with the crime in any way. The Crown case was based in its entirety on confessional evidence obtained in 1961, some 14 months after the crime.

Beamish was originally sentenced to death, but the sentence was subsequently commuted (largely one suspects because of his physical and mental age, and his physical disabilities) to one of life imprisonment. He was 20 years old at the time of his trial and would have been 18 at the time of Brewer’s death.

The primary proposition put by us at his 2004 appeal was that the murder of Jillian Brewer was in fact committed by Eric Edgar Cooke, who was executed on the 26th October 1964 at Fremantle Prison for an unrelated murder.

Once apprehended, in September 1963, Cooke had confessed to the of Brewer and Anderson as well to the murder of another six persons in the period 1959 to 1963.

Like the killing of Brewer, there was no forensic evidence linking Cooke to any of these six murders. He was an expert cat-burglar, and he never, ever, left fingerprints.

His complicity in these six killings, other than those of Brewer and Rosemary Anderson, had been largely accepted by the authorities since the time of his confessions.

The confessions of Cooke to Brewer and Anderson’s murders led to the convictions of both Beamish and Button being the subject of fresh evidence appeals to the Court of Criminal Appeal in 1964. These were dismissed on the 22nd May 1964. Special Leave to 7

Appeal to the of both men were also rejected in September 1964. An application for leave to appeal to the Privy Council was also refused in 1965.

The critical issue in the 1964 appeals of both Beamish and Button was Cooke’s confessions, and what weight, if any, should be given to them. Cooke himself was called and testified at both appeals, and he was cross-examined by QC, as he then was, who had prosecuted both Beamish and Button at their trials.

The decision of the original Court of Criminal Appeal was to the effect that Cooke’s testimony was inherently unreliable, in the words of Sir , The Chief Justice: “utterly worthless”. (Interestingly, Sir Albert who presided at the Appeal had also presided at Beamish’s original trial….Chief Justice Malcolm in Button describes Sir Albert’s decision to sit on the appeal as “curious” – see para 33 on p398).

Perhaps ever more curious was the fact that Virtue J had sat on the Court which heard Beamish’s first appeal, and frankly conceded in his judgment on the (2nd) appeal that he thought the case against Beamish was a “strong one indeed” and he had heard nothing to change his mind.

Sir Albert Wolff was not the only judge to have difficulty with Cooke’s credit in 1964. Virtue J, with whom Sir Lawrence Jackson agreed, found his version of events to be “intrinsically incredible”, “perjurous”, “obviously concocted” and “nauseating hypocrisy”.

The essential proposition advanced in the 2004 appeal was that the fresh evidence, unknown and undisclosed to Beamish or his advisers at the time of his trial or the 1964 appeal, coupled with what was known at that time, would demonstrate that Cooke’s confession to the murder of Brewer was almost certainly true, and that the findings of the 1964 Court of Criminal Appeal in this regard were distinctly unsafe.

It was our contention that there was a strong body of evidence which, had it been available to at the original trial might reasonably have led the jury to return a different verdict. 8

The very existence of Cooke as a multiple murderer, and as a person who frequented and had access to the Brookwood Flats in Cottesloe at the relevant time, was completely unknown to anyone at the time of Beamish’s trial in 1961.

Our primary submission was that had the original jury known anything of Cooke and his crimes at the time of Beamish’s trial, the result would almost inevitably have been different.

1959 – The Social Millieu

To understand the decision of the Court of Appeal in 1964 it is perhaps useful to look at the prevailing social milieu of the time. What was the community in which the glamorous Perth socialite Jillian Brewer lived her last days in December 1959 really like?

As we settle uneasily into the twenty first century the almost prehistoric days of 1959 seem an eternity away to even the most senior Baby Boomers, let alone anyone younger.

Jillian Brewer almost certainly never saw a television program. She never owned a mobile phone, and the concept of e-mail was beyond the realms of science fiction. Yet the events of her last 24 hours bore an incredible similarity to what she might have done as a 22 year old woman in 2006.

Jillian would have turned 67 years old on 11 October 2004 the day that the Supreme Court commenced its examination into the events surrounding her death, in particular the proposition that the man sentenced to death for her murder Darryl Beamish had been wrongly convicted. Was it he or rather the notorious mass murderer Eric Cooke who entered her state of the art flat that night and brutally murdered her?

That question will never be known for certain, but an examination of her last hours indicates that the social ethos or popular culture of Perth hasn’t changed much at all, despite all that has happened in the past 45 odd years.

Having become recently engaged, Jillian Brewer spent much of her last Saturday with her fiancée Andrew Dinnie, a dapper Perth accountant. The couple had met in August 1959 introduced by another resident of the Brookwood Flats Don Reid and his wife. 9

A small but exclusive engagement party was held at her flat on 11 October, and a wedding date had been set for 10 February 1960. The nuptials were set to take place a stones throw from her home at Christ Church in Claremont.

Unknown to Jillian or her guests, the engagement party had been watched at a distance by Eric Edgar Cooke.

Three days before her death the couple had purchased a double bed in anticipation of their marriage, from the leading Perth retailer Zimpels. Jillian’s single bed was traded in as a deposit.

Despite the respectable traditional and unremarkable circumstances surrounding her engagement and impending marriage, Jillian Brewer apparently had never felt constrained by the prudery of her times.

Police investigating her death in 1959 and 1960 and without anything like a strong lead to go on, interviewed anyone likely to have been romantically or physically involved with her since she moved from Melbourne some 18 months before her death.

The result of the Police investigation was that some 12 different men were confirmed as having been her lover in that period. Nothing that would have caused us any consternation in the pre-aids post-pill era of late 60’s Flower Power America, but hardly one’s perception of the norm for a well-bred girl in the late 1950’s.

Jillian’s seven-guinea-a-week flat in trendy Cottesloe less than a kilometre from one of the states best beaches was furnished in immaculate taste. Nothing surprising about this as she was after all training to be an interior decorator.

The rent was paid for as part of her inheritance from her late father’s estate, in addition to an allowance of fifteen pounds a week, which although hard to estimate in today’s values, was undoubtably a very comfortable stipend in those days.

She was fond of Fanta lemonade, and bought it by the crate, a symbol of her affluence in days when carbonated drinks were essentially a luxury. 10

Jillian Brewer’s last weekend began at around 9am on Saturday the 19th December when she arrived at Andrew Dinnies house. They spent the day together.

Their evening followed a pattern that remains popular even today. At around 5pm they returned to Jillian’s flat in Andrew’s Mayflower vehicle, then joined the Reids at the Ocean Beach Hotel on North Cottesloe beach. They left the OBH at around 6.45 driving to Fremantle to have a meal at the Oyster Beds.

Following dinner they took a stroll to the Fremantle Fish Markets and bought some cooked crabs, before returning to the Brookwood Flats a little after 9pm. They re- arranged books in a bookcase and (in the absence of any television, videos or DVDs) played cards until 11.30.

The couple (in Dinnie’s words) went to bed in her bedroom and “made love” before he left the flat at around midnight. Neither had any reason to suspect that as they spent what was to be their last moments together ‘christening’ the new bed, they were almost certainly being watched.

Even in 1959 it appears the boys preferred to go home after the event; although one suspects that Jillian’s mother living virtually next door in the same block of units may have influenced his decision in this regard…

The plan for the next day was for the couple to play golf, and that he would pick Jillian up shortly before 9am. True to his word Andrew Dinnie was there at 8.45.

Using his own key to get in, Andrew Dinnie had no inkling of the unspeakable horror of the scene that was to greet him, and which was to dog Perth Society and its legal system for the next four decades.

Button

A little over three years later, on the 9th February 1963 Rosemary Anderson aged 17 was run down by a vehicle in Stubbs Terrace Shenton Park, and sustained shocking injuries from which she died shortly thereafter.

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John Button, her fresh faced 19 year old boyfriend, with no prior record of any kind, was alleged to have been the driver of that car.

The Crown case was that in a fit of temper he had deliberately driven the car at her in an attempt to kill her.

He was alleged to have made a confession to the police later that night after many hours in custody, after initially having repeatedly denied the offence.

Following a trial in May 1963 he was acquitted of Wilful Murder and Murder, but convicted of the lesser offence of Manslaughter. No-one had ever heard of Eric Edgar Cooke. He was not apprehended until 1st September 1963, four months after Button’s conviction.

A subsequent appeal (on the basis of the Cooke confessions) was refused, as was an application for Special Leave to appeal to the High Court.

John Button served 5 years of a 10 year sentence in Fremantle Prison before being released on parole.

He has, as before, lived a blameless life ever since

He was sitting in an exercise yard at 8.00am on the 26th October 1964 when a flock of pigeons was disturbed from the roof of the new wing (which housed the gallows) indicating that Cooke had been hanged.

The 2001 Button Appeal

The Button appeal in 2001 was essentially on the basis of fresh evidence which we asserted proved that the vehicle driven by Button on the night in question was not the vehicle which had struck Miss Anderson.

We also relied on the confessions of Cooke to the crime, which taken in the light of his confessions to a number of other highly similar hit and run crimes (now almost certainly provable as the work of Cooke) took on a whole new significance.

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This evidence, we argued was to be similar fact evidence in reverse.

Usually the doctrine of similar facts allows the prosecution to call evidence to show that an accused person has committed strikingly similar crimes to the one under investigation, and to use that evidence as proof of guilt.

In this case it was sought to show that a third person (Cooke) had been in the habit of committing strikingly similar acts of running women down, and that this should be admissible as evidence of Cooke’s guilt, and Button’s innocence.

In 1963, when it was known that Cooke has confessed to some running downs offences, that sort of reverse similar facts was not seen by the existing laws of Evidence as being automatically admissible.

In fairness to the 1963 Court, it did not really have to decide the question, so adverse was its view of Cooke’s creditability.

Whilst the other running down offences had generally been known of at the time, it was not established that they had been the work of Cooke. The investigative work by Estelle Blackburn 35 years later however, had removed any doubt about this.

The confessions of Cooke matched substantially if not completely the evidence of the victims of those offences, which was not known of at the time Button was convicted.

Those seven victims (then relatively young women but by now quite elderly) gave evidence at the appeal of the incidents where they were run down, and the reports they made to the Police in that regard.

Remarkably, they were not cross-examined by the Crown.

The Crash Re-Constructions

It was demonstrated that a detailed analysis of the damage to Button’s Simca vehicle showed that it was quite inconsistent with the vehicle having been the one which killed her. 13

Unknown to anyone at the time of the first Button trial, Cooke had stolen a blue Holden sedan vehicle from a residence in Como on the night that Rosemary Anderson was killed.

There was nothing particularly unusual in this; Cooke had regularly stolen cars and abandoned them at the end of his night’s activities. But the co-incidence of him being out and about in a stolen vehicle on the very night of Anderson’s death was very significant.

The Holden stolen by him on the night in question had been crashed into a tree in Kings Park shortly after Rosemary Anderson had been run down. Police records verify this.

The car had been reported stolen, and subsequently recovered; but had never affirmatively been connected to the Button case before Estelle Blackburne raised this as a possibility in her book.

Subsequent examination of the police records and photos of the damage to the Holden taken at the time indicated that there was a high probability that this was the car which ran down Miss Anderson rather than Button’s Simca.

The Simca was virtually undamaged. The Holden had damage consistent with the massive injuries inflicted on the deceased.

Subsequent tests conducted by American Crash Reconstruction Expert William “Rusty” Haight using modern crash reconstruction methods indicated that it was far more possible that the Holden (and not Button’s Simca) had been the vehicle which killed her.

Mr Haight’s expertise, despite being vigorously disputed by the Crown was unreservedly accepted by the Court.

In its decision, the Court of Criminal Appeal in Button was glowing in its acceptance of Haight’s evidence, and perhaps above all the other grounds raised in the appeal, his evidence was the key to the appeal being allowed.

The Beamish Appeal - 2004

As with the Button appeal, Cooke’s modus operandi was again under scrutiny. 14

Other than having a propensity to run down young women at night in stolen vehicles, Cooke was the consummate home invader, who often assaulted young single women in their homes at night as they slept.

A number of those women were called to testify at the Beamish appeal. Until Estelle Blackburne began to investigate the matter, there was no suggestion that their common assailant had been Cooke.

Upon a comparison of the details given to the police by them at the time, and Cooke’s confessions to these crimes at the time of his arrest in 1963, a compelling picture emerged.

Cooke had a remarkable memory, and at the time of his arrest he confessed in graphic detail to numerous break and entering offences, literally dozens.

He could give times, dates and addresses, as well as uncanny and minute particulars that could have been known only to the perpetrator.

Even though none of these allegations had been levelled at him by the Police, and none had been the subject of any publicity, the details gratuitously given by Cooke matched almost exactly the details of the offences in question contained in the Police offence reports.

Again, reverse similar fact evidence was relied on to establish Cooke’s guilt and Beamish’s innocence and to a significant extent, this was the key to the success of the appeal.

The Lessons for the future.

Forty-five years later the Perth skyline has changed beyond recognition. The pace of life is immeasurably more frantic compared to those innocent and almost halcyon days in 1959. We all, however, now lock our cars and houses at night.

But some of the icons of the Western Australian lifestyle remain. 15

A few quiet beers with friends at a beachside pub, a meal in Freo, and a quiet night at home, are as popular as they were on the night Jillian Brewer died.

One thing that has changed, is that we don’t hang people anymore. The gallows at Fremantle Prison, so chillingly proximate to the Oyster Beds where Jillian Brewer took her last meal, is now a mere tourist curio; patronless for a very long time.

The lessons of the Button and Beamish cases indicate, if nothing else, that that’s the way it should stay.

CORRECTING HISTORY

THE BUTTON AND BEAMISH CASES

An address given to

FLINDERS SYNPOSIUM ON MISCARRIAGES OF JUSTICE

8 November 2014

by

T F PERCY QC

Wolff Chambers

7th Floor

33 Barrack Street

PERTH WA 6000