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 Australia since 1967, and in WA since 1964, those unlucky enough to be convicted of wilful murder in Perth 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 Darryl Beamish’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 Fremantle) 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. 3 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 Eric Edgar Cooke was sitting in the death cell at Fremantle Prison. 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. 4 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 Western Australia. 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. 5 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.