Button v The Queen [2002] WASCA 35

Button v The Queen [2002] WASCA 35 - WASCA 2002 case summary — Zoe

[85]

"An inspection was made of the Simca which showed signs of damage on the front left hand side. Button was then taken to the scene where he pointed out where the girl had been lying, and articles were found scattered along the road North of this position. These articles were identified by Button as having belonged to the girl. The positions of certain blood stains where the girl had been lying and north of this position were also noted, and for reference the location of any articles or signs on the road was marked in chalk.

Early Sunday morning about 2.00 am a plastic, envelope type bag belonging to the girl was found in the junction of a street running off Stubbs Terrace near the scene. The bag was light and could have been blown from the scene by the wind.

The applicant Button made four statements to the police in connection with the matter. He made two verbal statements followed up by a written statement, all of which suggested the girl had been struck by a 'hit and run' vehicle. He studiously hid from the police the facts relating to the game of strip poker, gave a specious explanation at his trial of how the articles of clothing came to be in his car, and gave the reason for the girl's abrupt departure an argument over a piece of fish. Finally at a later stage in the evening after he had inquired about the girl and had been told she was dead, he said 'What have I done, it was all my fault', and on being asked 'Do you mean she was struck by your car?' he answered 'Yes'. He then gave a statement in writing concerning his running at the girl (as he said) to scare her.

At his trial his Counsel made strenuous objection to the admission of this statement, alleging that it had been got by improper means - that it had been forced out of Button by keeping him under detention for some hours at the CIB in Perth and that the police had despite his protestations of innocence plainly indicated that they did not believe him, and finally in order that he might be allowed to go home, he made and signed that statement on which the Crown relied.

Argument was heard on the voir dire for 11/2 days and Button himself gave evidence. At the conclusion the trial Judge held that the statement was admissible and gave a careful statement of his reasons for doing so. We have had the advantage of reading the learned Judge's reasons for admitting the statement and it is important to note that he formed an unfavourable opinion as to Button's credibility: an opinion which might be gathered by anyone reading his evidence let alone hearing it.

The mainstay of Button's case was the small amount of damage to the car, in view of the speed at which it was said the car was going, and the grievous injuries suffered by the girl.

From this it is argued that it could not have been Button's car that struck the girl. To draw any definite conclusions from the damage to a vehicle would be foolish indeed. Over a period of many years I venture to say each of the members of this Court has seen cases where the damage done to a vehicle colliding with a human being is of small significance where the injury to the person has been great. The weight of the vehicle, its speed, and the part of the vehicle which takes the main brunt of the first impact have a bearing on the resultant damage to it; so has the individual who is struck, the ground where he falls and how he falls. If a person is running out of the way or is hit at a particular angle, that will have a bearing. The factors that can affect the situation are of course infinite.

Listening to the argument on the motion, I got the impression that this application might have been an appeal in another guise against the jury's implicit finding of fact that Button's car was the one involved. The point was very thoroughly discussed at the trial and the jury fully informed of the implications of the evidence. Before leaving this point it should be mentioned that the car which Cooke says he was driving and which he says hit the girl sustained little damage, so that if the Court accepts Cooke's story as credible it is substituting one very little damaged car for another which may be similarly described. Nevertheless, there are certain features about the condition of Button's car as seen on the night of the 9th February and early morning of the 10th February, 1963 which are materially significant in pointing to the conclusion that it was the car that hit the girl."

[99]

The distance from the bottle to the first blood mark was 175 feet;

and from the bottle to the second blood mark 366 feet;

and from the scrape mark to the Southernmost blood mark 223 feet.

The North end of the convex track in the sand was about 230 yards from the mouth of the subway.

From the circumstantial evidence it would appear that the girl had been carried and/or flung a little over 60 yards.

Mr Drummond, a pathologist, examined the Simca car. On the lift [sic left] headlight Mr Drummond saw small reddish brown smears and two smears in the centre of the glass. On the metal rim above the glass there were two spots and on the same rim below there were another two spots. These spots proved to be human blood but there was not sufficient for typing. The spots on the rim were about a pin head in size. Other blood stains and spots on the door frame and inside rear of the car were of neutral significance.

There was a patch of reddish brown stains over an area of about 5 inches in diameter near the top of the curve of the offside front mudguard. One stain was thick about 2 inches long and half-an-inch wide. This too proved to be human blood Group A.

The girl Anderson's blood group is a [sic A] Rhesus negative.

The damage done to the car was slight. It was difficult for an expert to say how much could be due to hitting the girl because about a month before Button's car had collided with the back of a small car at the junction of King Street in St George's Terrace. The impact was light. Button reported the accident, specifying that the grille and park light on his vehicle were damaged and said in reporting that he estimated the cost of repairing the damage at less than [sterling]25. Button ascribed all the damage to the car as it was observed on the 9th February following, to this collision, but he was contradicted in that by the girl's father who had seen the car after the St George's Terrace collision. In that impact the left hand or near side of Button's vehicle had collided with the back of the right hand or offside of a Ford Prefect belonging to a Mr Wilson. When Button's car was examined after the night of the 9th February, 1963, it was found that in addition to the damage to the radiator grille and the blinker light on the near side, the front registration plate was bent slightly underneath the bumper and the paintwork was chipped on the left side of the plate. The radiator grille lower surround panel was pulled away at the join of the mudguard; the left mudguard was dented inwards at the front below the headlights; the left headlight rim was buckled and slightly sprung from its mounting; the left side radiator air deflector was sprung from its mounting and pushed back; and the bonnet was slightly dented in four places on the top at the right side of the mascot. The headlights were tested for adjustment, and while the right or offside was in order it was found that the left or near side was badly out of adjustment; it would illuminate the roadway only 7 ft 6 in in front of the vehicle.

Button could not explain how the dents got on the bonnet of the car, although he said they were there before the night the girl was killed. When asked about the blood spots he could give no explanation, although at his trial he suggested they might have got there if he had put his hand on the car to steady himself as he ran around to the driver's door; that he had a lot of blood on his chest and hands and perhaps some blood got on the places specified when he may have touched them unwittingly.

The girl's father said in evidence that he had seen the car a week prior to the 9th February and that there was then no damage to the bonnet of the car.

Mr Wilson, the driver of the Ford Prefect, testified that he looked at the Simca after the collision and there was no damage to the bonnet, and that he saw the Simca on the 13th February, 1963, he saw the dents in the bonnet which had not been there before and fresh damage to the near side head lamp.

Referring to Button's explanation as to the blood spots, the explanation is incredible. One may 'explain' anything, but this is a case where the import of the blood spots cannot be explained away. It is highly unlikely that this kind of spotting accurred [sic occurred] at the several places by Button's steadying himself with his hand on the car as he ran round the front, even if this theory could be accepted as fact. The position of the spots on the left headlight glass and rim in particular will not square with Button's theory. As to the damage to the headlight and the bonnet, that does not fit in with the report he made, and Mr Wilson the driver of the Ford Prefect refutes Button's testimony that the headlight and bonnet were in the damaged condition they were found in after the 9th February, as a result of the January collision.

The girl died early after admission to the Royal Perth Hospital. A post-mortem examination indicated that she had been struck a very violent blow consistent with a motor car running into her.

She had numerous abrasions on the front of her body which may be summarised as follows:-

a large laceration with ragged edges over the right eyebrow;

a small abrasion 1/2 in above this;

an abrasion 11/2 in long under the chin;

small abrasions on the bridge of the nose and on the back of the left hand and of the five fingers of the same hand;

a large abrasion on the outside of the right forearm;

large abrasion involving the whole or the fronts and sides of both thighs and knees;

a laceration 1" long on the front of the iliac spines, that is to say, over the pelvic area on either side;

a laceration of the right big toe;

there was bruising on the outer side of both calves: under the left bruise there was a fracture of the upper quarter of the shaft of the fibula.

Internally:

There was intensive subarchnoid haemorrhage over the whole of the brain and small bruising on the inner surface of the right temporal lobe;

in the lungs there were areas of dark discolouration from haemorrhage;

the abdominal cavity was full of fluid dark blood and there was a tear on the anterior edge of the liver between the right and left lobes;

there was also extensive haemorrhage at the root of the spleen.

The cause of death was haemorrhage resulting from the ruptured liver and subarachnoid haemorrhage.

From the appearance of the injuries, the surgeon performing the autopsy gave as his opinion that the girl had been hit violently with some object and then gone feet first with the front of her body sliding along the rough surface of the road. There were various indications on the skin of this sliding or scraping - in such cases the skin presents a parchment-like appearance and this was the condition observed at the post-mortem."

[130]

"It was submitted that the duty of disclosure included the obligation to make enquiry to ascertain whether discoverable matter existed and to ensure its preservation: Archbold, para 4.268. Further, if material was available to the Crown, on the basis that it was known to the police, for example, the accused was entitled to it, whether or not its existence was known to prosecuting counsel: R v Ward (1991) UKHL 12; (1993) 93 Cr App R 1. I accept these submissions. In such a case, however, it is not necessary for the appellate court to determine whether there was any fault on the part of the prosecutor in this respect. Innocent failure to disclose relevant material may nonetheless constitute a miscarriage of justice: Clarkson v DPP [1990] VicRp 65; [1990] VR 745 at 755 per Murphy J; and see The Queen v Apostilides [1984] HCA 38; (1984) 154 CLR 563. If after conviction it came to the offender's knowledge that the Crown had in its possession or available to it during his trial documentary material which he had requested, but which had been innocently denied by the Crown, that is a situation which could lead to a miscarriage of justice, if the availability of the material might have influenced the result of the trial. See also Bryer (1994) 75 A Crim R 456 at 477-478 per Williams J.

It was accepted that the relevant criterion to be applied in determining whether there has been a miscarriage of justice is whether disclosure of the material in question to the defence might well have influenced the result of the trial: see Clarkson; and Bryer, above. So far as fresh evidence which was not available at the time of trial is concerned, it was also accepted that a miscarriage of justice will occur if evidence which is now available and not led at the trial was such that, if given, a jury acting reasonably must have entertained a reasonable doubt so as to entitle the accused to an acquittal. In the case of fresh evidence this involves a three stage test. First, it must be shown that the evidence relied upon could not, with reasonable diligence, have been produced by the accused at the trial (although this is not a universal and inflexible requirement). Secondly, the evidence must be capable of belief. Thirdly, there must be a significant possibility that the jury, acting reasonably, would have acquitted the appellant had the fresh evidence been before it at the trial: Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392 at 395 per Gibbs CJ; and see Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259."

[148]

"How has reconstruction testing contributed to this field of knowledge?---Doing the testing gives us an opportunity to test or evaluate the mathematical and theoretical assumptions made by reconstructionists. Doing a test, for example, to compare throw distance and impact speed gives us a known throw distance and a known impact speed which we can then apply to the different math models to see how well they reproduce that relationship. Then beyond that the uses are many. We use the crash testing to evaluate how people move, to a certain extent to make recommendations on vehicle design changes, make vehicles more pedestrian-friendly, reduce injuries to pedestrians struck by cars. We look at opportunities to improve traffic safety in a number of ways.

Can you tell us please what is the connection between body motion as demonstrated in crash test reconstruction and live pedestrian impacts in an actual accident? What is the connection between the body motion as demonstrated in those tests and the live collision?---Crash tests have been done with cadavers, pedestrian crash tests have been done with cadavers, as well as a human form surrogate, a dummy. The dummy's design has changed over the years as well; everything from a very stiff, almost like a department store mannequin-type dummy, through what frankly looks like an overstuffed sock, very, very flexible, just a tall rag doll. The dummy evolution has changed drastically. All of those types have been evaluated, but by themselves they don't stand up to an immediate comparison to real people without some sampling of real people being hit by cars and because we, I think, tend to frown on running over real people, we have to look elsewhere and so we have gone to the fortuitous examples of real people getting caught by surveillance cameras and what happens to those people when they're struck. Security cameras around department stores looking into parking lots, intersection cameras, have caught in virtually every country in the world pedestrians being struck and so we have undertaken at the college to compare those real, live crashes and the information from those to the data that we've collected in our pedestrian crash testing with dummies of different sizes and we find that there's a very, very repeatable, very favourable comparison between the two; that the testing we've conducted is virtually identical to what happens to a human body, an actual human body, in an unprepared crash.

Is the analysis of a pedestrian-involved collision more difficult than an analysis of another kind of motor vehicle collision?---It is, yes. It is because it takes into account a third dimension. Most car to car crashes, if you will, are done on a planar surface, an X and Y grid, looking down on it from above as though you're looking at a map. When we involve a pedestrian, necessarily we have a third direction or third axis. We get away from simply X and Y, we have to add a Z axis, because of the vertical height, the vertical position, of the pedestrian centre of mass and how it moves as a product of the collision.

In a collision analysis, what is the first feature - or in a pedestrian collision analysis, what is the first feature that an analyst such as yourself will look at?---The first and probably most telling relationship is the height of the pedestrian's centre of mass relative to the striking leading edge of the vehicle that's involved. This wouldn't be the bumper level but rather the leading edge, the bend if you will, at the forward position of the bonnet. That relationship is going to establish how the body moves as a product of the crash at any speed.

Where in the human being is the centre of mass?---55 per cent of a barefoot standing height, male or female, is about where the centre of mass is on the human body. Effectively it's at a point just below the iliac crown or the top of the hipbones and down into what would be called the pelvic girdle. Largely regardless of body shape, that's going to be where you find the centre of mass. Even as we, shall we say, start to get older and move toward that centre of mass, that centre of mass point still remains about the same height.

What are the physical characteristics relevant to pedestrian collision analysis?---There are a number of characteristics, primarily those located on the car and the body, that are relevant. We look at, for example, the motion laterally across a car. A pedestrian, for example, running perpendicular to a car is going to be carried across the front of that car and off the side more readily than one that's struck in line, for example, and so being able to analyse that lateral motion is important and is a physical characteristic that we'd look for. The length rearward on the front of the car that we find the contact with the body is an important characteristic and frequently once we've established the relationship between the height of centre of mass and the leading edge, is something that tells us about vehicle striking speed. Then, of course, the characteristics we find at the collision scene, light objects that the pedestrian may or may not have been carrying, may not have been wearing, clothing, that sort of business that we find at the scene, those are also important.

In your report the expression 'trajectory categories' is used. Would you explain that expression please?---Based on that initial relationship between the height of the pedestrian centre mass and the leading edge of the bonnet, we can predict how the body is going to move in a gross sense. There are effectively two trajectory categories or body motion descriptor categories; one is known as a wrap trajectory where the body's centre mass is above the leading edge of the vehicle. The other is what's known as a forward projection where the reverse is true. The centre mass is below the leading edge of the striking vehicle. The comparison would be, for example, a moving van or a ute with a high front-end striking a pedestrian, such that he'd be pushed along in front of the vehicle as opposed to a pedestrian struck by a smaller sports car where the leading edge is below the centre mass and the body then moves onto the hood and into the windscreen area and that would be a wrap trajectory.

The expression 'throw distance' which is referred to, can you provide us with an explanation of what is meant by that expression?---Throw distance is simply a measurement of the distance between the area of impact, the point of impact and the point where the body finally comes to rest; a straight line travel distance for that body."

[171]

"Is the damage that you have observed on the photographs of Mr Button's Simca consistent with such a collision?---No, sir, it's not.

What damage would you expect to the bonnet of Mr Button's Simca had it been involved in such a collision?---The damage on the front of the Button vehicle would have been greater and covered a greater area than what's visible in those photographs taken at the time, I understand, by the police. The photos of that Simca, to me, don't represent that that particular vehicle hit Ms Anderson or any particular pedestrian and they're wholly inconsistent with a pedestrian impact.

Assume that you had been presented with evidence that a 1962 Holden equipped with a sun visor was found with damage to the bonnet, assume it is suggested to you that it struck Ms Anderson as she was walking along Stubbs Terrace in the manner described by Mr Cooke in his confession to the police, his original written confession to that crime, based on the test you conducted with the Holden do you agree that the Holden can be ruled out as the vehicle responsible for the collision?---No, sir, I don't. My understanding is originally ruled out because of the presence of the visor and I don't think that that's consistent with the tests we've seen.

Are you aware that there was some previous evidence in this matter - it's pages 456 and 457 of the transcript. Are you aware that there is some previous evidence in this matter where Cooke claimed that when his car struck Ms Anderson, she came within 18 inches of the windscreen and then went over the roof? Are you aware of that evidence?---I have seen that in the transcript, yes, sir.

Are you aware that the Crown contention at the trial of Mr Button or at his subsequent appeal was that Cooke could not have been accurate in his description of the event because the sun visor would have trapped Ms Anderson on the front of the car at the windscreen? Are you aware of that contention?---I am, yes, sir.

Are you aware that the Crown suggested that at the speeds that Cooke said he was travelling in his confession, she would have necessarily have struck the windscreen? Are you aware of that contention?---I am, yes, sir.

Did your crash test with the Holden address these points?---It did, yes, sir.

Do you concur with those propositions as I have described them to you?---I don't concur with the notion that she would have necessarily struck the windscreen. In fact I think the visor, as we saw in this particular test, would have prevented her from making a full good contact with the windscreen, such as there might have been breakage. I do believe she would have come very close to the windscreen as we saw in the particular test we did with the Holden, but I again don't think we can exclude the Holden simply on that basis.

Bearing in mind the extent of the injuries suffered by Ms Anderson as detailed in the autopsy report and the photographs in the police records that you have viewed, is it impossible to look at a car and say that it did not kill a pedestrian? Is it impossible to do that?---We can tell from the autopsy, the pathology report, and in particular the photographs of a decedent's body, in this case the photos of Ms Anderson - we can tell from what direction she was struck, how she struck the pavement and how she moved along the pavement to rest. Those we can describe or evaluate with a great deal of certainty, particularly in this case, given the state of those photographs and such, but it would be very difficult to look at a car in absence of any other documentary evidence and say that car did or didn't kill a person. That would be a real tough one."

[185]

"On the day of 10th February 1963 I left home at about 2 pm catching the local bus and alighting in Adelaide Tce outside of Fairlanes Bowling Centre. I met some people there and stayed playing bowls until about 5.30 pm. After having a snack at the Centre I caught another bus and went out to my parents' house in South Perth 31 Pitt St.

I stopped there about half an hour and walked up to the Hurlingham Hotel, had a beer and walked up to the Como Hotel where I had some more to drink. After leaving the hotel I prowled around some house in Norton St, South Perth. I went into a house in that street and took some money which was in a bank book. The bank book was in a dressing table drawer, the amount I took was [sterling]20, 2 ten pound notes and a bit of loose change in the kitchen. I think the time was about 7.30 pm. After leaving that house I prowled around some more and finally ended up in Como. At the corner of Saunders and Leonora Sts I took a Holden sedan car, two tone in colour, it was parked in the driveway of this corner house.

The keys of the car were in the ignition and I drove it out of the driveway, along Mary St up to the Narrows Motel turned into Melville Parade and drove along the parade to the Narrows Bridge. After crossing the bridge I went up Spring St and Malcom [sic] St through Subiaco-Wembley to Double View. In Double View I turned off the main road into Grant St along till Ewen St to Sydneham [sic] St, along this street to Scarbro [sic] Beach Rd. Again along the main road to St Bridgets Tce, along this terrace to Weaponess Rd.

I went along Weaponess Rd into Wembley Downs to a street on the right which I turned into this was Purdum St. I turned left off this street into Buxton and went along here till I came to Ken St. At Ken St I stopped the car and went back to prowl around some house I had seen, which were in darkness. I decided not to break into these houses at [sic] my wife's brother-in-law had told me a detective lived a little way up Buxton Rd. The length of time I were away from the car was about 10 minutes. I got back into the car and drove along Buxton Rd till I came to Empire Rd into which I turned and drove until I came to Alyth St, this street led to the Boulevard, Wembley. I drove along the Boulevard till I turned right into Brookdale St over Cambridge St to Stephenson Ave. I drove along this Avenue until West Coast Hwy where I turned left.

I drove along West Coast Hwy to Alfred Rd in the suburb of Mt Claremont - all the time, well within the speed limit. Along Alfred St through Graylands, as I neared the intersection of Alfred Rd and Stubbs Tce I saw walking towards me a woman and a man with a little child in between the two. I drove down Stubbs Tce past the Shenton Park railway station, I saw a young woman walking towards me, but on the right hand side of the road, she was between Smit's Splicing Service and Wembley Iron Works, I have indicated to detectives the spot where I had first seen her. She was walking at a normal pace towards Graylands, I drove past at 35 mph and down to the intersection of Cunningham Tce and Stubbs Tce where I did a U-turn, my intention to go back in the direction I had come was to run her down. I can remember wanting to hurt someone and so I decided on this girl I had seen.

I completed my U turn and drove back in the direction I had first come, my speed was at about 40 mph when I started up towards the walking girl. I didn't stop the car on my way back, the girl I had seen previously was still walking in the same direction and on the same side of the road and at the same pace. I saw her about opposite the Shenton Park railway station, I drove half way off the road straight at her. The left hand wheels were off the bitumen on the verge and I made a sudden swerve to the left to hit her. The car struck her, she was tossed on to the bonnet and bounced onto the hood and over the back of the car. I did not hear any noise apart from the first impact - no scream or that.

I struck her with the front right hand side of the car, in between the right headlight and the centre of the grill. I were doing about 30 mph when she was tossed over the car and I picked up speed - at no time did I stop or turn around to have a look, I looked in the rear vision mirror, but saw nothing. I don't know how she was dressed, but I have a recollection of something in one of her hands. I continued on till I came to Mengler Ave where I turned right until Brockway Tce I turned left in to Brockway Tce and stopped the car about half way between the next street.

I drove the car up onto the side of the road and parked it with the left wheels on the footpath, stopped the car, turned off the light and got out to survey the damage. The damage to the front of the car was on the right hand or drivers side of the grill - it was pushed in a bit. I remember thinking that there wasn't much damage really. Where she had struck the bonnet there was a dent and on the hood of the car were a few blood spots. These blood spots I removed by wiping away with my handkerchief. I can't recall if the car was equipped with a sunvisor or not. I looked around the outside of the car carefully and couldn't see any more blood or any more damage. I was parked there not more than 5 minutes. I have since indicated to detectives where I had parked this car and also where I estimated I had hit her on the road.

After looking at the car I got in and drove back towards where I had struck the girl - on the way to the scene I passed a couple of cars travelling towards me. My speed was about 35 mph. When I got to where I thought I had hit the girl I slowed down to have a look - but there was no trace of her. When I never saw her lying on the ground I thought some one must have picked her up and taken her to the hospital annex opposite.

I then drove under the subway along Nicholson Rd to Rokeby Rd, where I turned right and drove across Thomas St into Kings Park. I drove along and turned left into May Drive and along on the wrong side of the road and picked out a tree into which I drove the car. This tree was on the right hand side of May Drive as you travel towards the War Memorial, I have shown the detectives this tree, which I had deliberately driven the car against. I were travelling at about 20 mph when I hit this tree. When I had looked at the car earlier in Brockway Tce I saw what part of the car had been damaged and so I aimed this portion at the tree. My idea was to cover up any damage caused by me in the hit and run to look like it was due to the crash into the tree.

I jumped out of the car through the left hand door, my reason being to make believe there were more than one person in the car and also to jump clear of the soft sand and thus leave no footprints. I walked along Thomas St until I reached the gardeners House turned left and along a fire break until I came to a foot path. I walked along this path till I came out near Kings Park Rd and walked up to the Childrens Hospital and caught a taxi home. I never have owned a watch and estimate the time I drove around, from the time I picked up the car until I hit the girl would have been approximately 13/4 hours, that made the time of the hit and run about 10.15 pm. I arrived home at about 11.30 pm.

The following day I read about it in the paper and later on during the week read more details where she was found in Stubbs Tce near the Shenton Park railway station and that a car driven by her boyfriend who's surname was Button. The girls name was Rosemary-Something-Anderson and that she lived in Alfred Rd, Graylands.

My reason for running down the girl was just to inflict injury and pain on her. I never knew her, the reason I left this statement until I were arrested on other matters was

First:- When it happened I didn't want to be charged with this crime.

Second:- Now that I have been arrested on other matters and have so much more against me this bit can't hurt me and I'd like to see an innocent person like Button free.

I have volunteered this statement of my own free will without promises threats or inducements and is true as far as I can remember in detail."

[187]

"1. I have been advised by Mr B P Kakulas Solicitor on behalf of the abovenamed JOHN BUTTON that I am not obliged to sign this Affidavit nor give any information relating to the death of ROSEMARY ANDERSON. Despite such advice I desire to make this Affidavit and give such information as I am able with regard to the death of Rosemary Anderson.

2. No person has offered me any promise or inducement to make this Affidavit and I make it of my own free will and accord to clear my own conscience.

3. On Saturday the 9th day of February 1963 between the hours of 9 pm and 10 pm I stole a Holden Sedan motor car from a driveway of a dwelling house at the junction of Leonora and Saunders Streets Como. To the best of my recollection the Holden Sedan was coloured a two-tone blue.

4. I drove the car over the Narrows Bridge into the western suburbs and went to Doubleview and parked the car in a Service Station yard and prowled around in Doubleview for a short time. I broke and entered one house in Doubleview and after seeing no other opportunity I went back to the car which I drove to Wembley Downs along Perry Lake Stadium and turned into Stevenson Drive towards West Coast Highway. I drove to the junction of West Coast Highway and Alfred Street Mount Claremont. I then turned left towards Graylands and drove along Alfred Road when I was near the junction of Stubbs Terrace and Alfred Road. I saw on my left on the roadway a man and woman walking towards me. Between these persons was a little girl. As soon as I saw the man and woman I decided to run them down but I then saw the little girl and decided against it. I then turned into Stubbs Terrace and drove towards Shenton Subway. When I was near the Subway I saw a scooter driving towards me. There was a man driving and a woman on the pillion seat. I noticed that they were not wearing safety helmets and so I decided to run them over. I turned my vehicle and started after them. They were a considerable distance in front of me and I was about to hit them on the hill in Alfred Road when I noticed a vehicle coming towards me. I slowed down so that the vehicle would not see the accident and in the meantime the scooter went further ahead and made a right hand turn and drove in the direction of Claremont Mental Hospital.

5. I then turned up to Mount Claremont. I drove up Alfred Road to Servitus Street where I turned left towards the railway line. On the next turn left which goes down to the Lakeway Drivein I decided to turn there. There is a footpath only on the right hand side of the street. Here I saw a woman walking towards Devon Street on the footpath I decided to run over her. I then went around the block again to get behind her and when I reached Devon Street I saw that the woman was just going into the Drive-in. As I approached the Drive-in the woman was standing talking to a person in the ticket office. I then drove back to Alfred Street and down it to Stubbs Terrace. I turned around again and went back to the Subway in Shenton Park. When I reached the Subway I stopped to give way to a vehicle travelling west in Nicholson Road under the Subway. This vehicle continued travelling west into Selby Street. While I was waiting at the intersection I saw a young girl walking under the Subway on the southern side of the road. I decided that I would run her down.

6. I made a 'U' turn in Cunningham Terrace and parked the vehicle near a telephone booth and watched the girl walk up Stubbs Terrace. She was walking south towards Shenton Park Railway Station in Stubbs Terrace. I remember that she had a handbag in her hand which was a flat satchel type. I waited a few minutes for a few cars travelling towards her and me and then started the motor and drove up towards her. I was doing about 40 mph and I struck the girl with the right hand part of the front of the Holden car. She was scooped up onto the hood for a couple of seconds and then thrown over the bonnet to the left side of road. At this stage my left hand wheels were on the gravel and sand verge of the road. I drove up the road and made a right hand turn into Lemnos Hospital Drive and went back to where I had struck the girl. As I drove up I saw a Simca car at the approximate position where the girl landed. I cannot recall the colour of the car. Both left hand doors were open. However as I drove past I saw a man bending over the girl I had hit. This was near a tree stump opposite the Railway Station.

7. I drove back to where I had made my previous 'U' turn made a further 'U' turn and drove back towards Stubbs Terrace. As I drove past where I had hit the girl I saw on the road a few bits of cosmetics. By this time the Simca car and the girl had left the scene.

8. I then drove up to Graylands and into Mengler Avenue and then I turned into the first street to the left which straight leads to Lock Street Station. I parked my vehicle got out of the car and examined the damage. The right hand portion of the grille was stoved in between the right hand headlights and the centre of the grille. On the hood was a dent and on the bonnet or roof were about four spots of blood which I wiped off with my hanky. I then got back into the car and drove off.

9. I drove the vehicle under Shenton Park subway up Nicholson Road to Rokeby Road and then right into Kings Park and drove along in Kings Park and turned left into the drive. I drove about 40 yards and then picked out a tree and drove the car up against it. I did this so as to give the impression that somebody had taken the car on a joy-ride and lost control of it. I jumped out of the car through the left hand door and walked through the bush onto a path through to Thomas Street near the Home of Peace. I walked to Princess Margaret Hospital and rang for a taxi in which I went home.

10. I was arrested by the Police in relation to other matters on the 1st day of September 1963. After I gave them my statement the Police took me over the route I told them. When we got to the scene of the accident I asked them to stop the car and we went over to a spot on the left side of Stubbs Tce going towards Karrakatta and here I pointed out where the girl was when I struck her. I made a mark with yellow chalk and I was photographed pointing to this mark. We then went further up the road and near the tree stump I pointed out the approximated position where the girl landed after being flung off the car.

This was marked and photographed.

The Police said I was incorrect. Dt Deering and Dt Sgt Neilson said I was a liar. I ask him why and Deering he said I were out in the times and in the distances in which she fell after being struck. After told this by Dt Sgt Neilson that I were only trying to make a big fellow myself and were trying to get someone else in the shit & that I had read so much in the paper about it I believed I were involved. Neilson dictated to me a statement which I signed. I was questioned about many matters and I made a statement to the Police in relation to this matter approximately 10 days later.

11. What I have said here is the truth relating to the matters herein set out."

[189]

"In analysing this case I took the approach to examine the different versions offered. They are summarized as follows:

(1) The position of the Crown and suggested by the 'Button Confession' is such that John Button allegedly drove his car recklessly toward the [sic] Miss Anderson walking along the left (east) verge of Stubbs Terrace north of the rail station. As he moved left in the road, perhaps to 'scare her' he struck her with the left front of his car, carried her a significant distance and then she fell off the car onto the road or verge to the left.

(2) The recollection of events suggested by Mr Cooke's confessions in this case are such that he, Cooke, struck Miss Anderson from behind with a Holden at about 40 mph (64 km/h) and she was thrown onto the 'bonnet, bounced on the hood and over the back of the car'.

In reviewing these versions, taken in light with what we know today about pedestrian-involved collisions, what we learned from the crash tests conducted in this case and those conducted with other motor vehicles on other occasions I believe it becomes clear that the version offered by the Crown fails to meet with the objective physical evidence found in this case.

The contentions of the Crown and police that the Simca could have struck Miss Anderson - or any other pedestrian for that matter, are little more than speculation and lack any foundation in reasoning or objective analytical sciences. There is absolutely no damage on that vehicle, as depicted in the photos taken by police which is consistent in the slightest way with a pedestrian collision at the speeds suggested or sufficient to project and injure Miss Anderson as described.

The Simca motor vehicles used in the crash tests I conducted specific to this case demonstrated that, at the speeds suggested or even at a lower speed, a body the same size as the late Miss Anderson's would have made contact with the leading edge of the car at the grille and headlight area and then would have made significant contact at the upper portion of the bonnet. There was no such contact on the Button Simca.

The front end damage suggested in the body shop documents for the Holden Mr Cooke claimed to have used in this crime and his description of the damage before he ran it into the tree are consistent with pedestrian impacts and with the damage observed in the testing conducted for this case.

I believe it becomes clear that the contention of the Crown that the Holden, with the visor intact, could not have hit the pedestrian is inconsistent with the crash tests conducted and that the distances suggested by the Crown in the prosecution of Mr Button are inconsistent with what we know today about the direct relationship between impact speed and throw distance.

On the other hand, I think the crash tests make it clear that Mr Cooke's description of the motion of Miss Anderson's body onto the car and off to the road are consistent with the crash tests conducted, even chillingly so. That Cooke's estimate of his speed, given the location of physical evidence found at the scene of the collision although it wasn't apparently memorialized until the 1964 appeal, are reasonably accurate given the understanding of such collision we have today which we would not have had in the early 60's or even into the 70's for that matter.

Mr Cooke claims he hit Ms Anderson at about 40 mph (64 km/h) (in his confession of 12/9/63). At that speed one would expect a throw distance of some 75-100 feet (22-30m). The location of the physical evidence documented in the 1964 police scene sketch suggests that the collision took place in the east verge of Stubbs Terrace in the area of the middle of the intersection with Selby Street. It may have occurred slightly further to the north nearer the northern extreme of that intersection, but it is more likely, given the speeds and distances involved, that the collision occurred within the confines of this intersection.

Finally, the speed suggested by Mr Cooke (that of 40 mph or 64 km/h) and the type of motion described by Cooke are consistent with the anticipated motion of a struck pedestrian: something Mr Cooke could not have known with such detail and accuracy because it wasn't really described in the literature until the late 1980's.

After crash testing began in Europe in the 80's and into the 90's supplemented by tests I have been involved in, we learned that a vehicle which is not braking and which is moving at higher speeds is more likely to project a pedestrian over the roof than one which is braking at impact. We also learned that the relationship between the height of the leading edge of the bonnet (measured vertically from the ground) relative to the vertical height of the struck pedestrian's center of mass plays a significant role in the resultant motion of a struck pedestrian.

Mr Cooke's description of the body moving onto the bonnet/hood and over the roof, although decried by the police at the time, is an eerily accurate description of the crash test conducted with the Holden some 37 years later but a few miles from the actual collision location and is consistent with the understanding of such collisions given the developments in the science of collision reconstruction."

[191]

"(1) That there is no objective physical evidence that the Simca driven by John Button at any time struck any pedestrian not the least of which was Miss Anderson. The damage depicted in the police photos of the Simca is inconsistent with a pedestrian strike and the lack of damage which would be consistent with a pedestrian strike as seen in the three crash tests with similar Simca vehicles conducted specific to this case further eliminates the Button Simca from involvement in the Anderson collision.

(2) The contentions of the Crown and police that the Simca could have struck Miss Anderson - or any other pedestrian for that matter - are little more than speculation and lack any foundation in reasoning or objective analytical sciences. There is absolutely no damage on that vehicle, as depicted in the photos taken by police which is consistent in the slightest way with a pedestrian collision at the speeds suggested or sufficient to project and injure Miss Anderson as described.

(3) That, while the police at the time of this collision should reasonably have, based on their experience and other serious ongoing hit and run pedestrian collisions which occurred at about the same time, suspected the damage [to] the Simca was inconsistent with this car having struck a pedestrian, the state of the art in pedestrian collision investigation would have been insufficient to have allowed them an opportunity to better understand and/or analyze this collision from a factual scientific perspective.

(4) That the version of events provided by Mr Cooke in his confessions to the death of Miss Anderson and his testimony in the appeals hearing is consistent with the objective physical evidence and accurately describes the motion of a pedestrian which might be struck by the Holden as described.

(5) The notion put forth by the police and Crown that the visor on the Holden stolen by Mr Cooke would have caught Miss Anderson, while reasoned, could not be carried to a [sic an] objective conclusion until the testing I conducted Feb 2000 and demonstrated that the visor would not have been as speculated by police.

(6) The crash tests conducted Feb 2000 are evidence which could not have been available to the jury at the time of the original trial or during later appeals because (a) such testing was not widely done at the time given the limitations of existing technology and (b) the limited interest in the specialized field. Testing done specific to this case was the first time any such examination of Simca-to-pedestrian crash tests can be found anywhere in the literature on the subject and the first time such a Holden with a visor attached was used in a pedestrian crash test and the effect of that component examined in any detail.

(7) The version of the facts presented to the original jury and to the judges on appeal in this case do not stand up to the scrutiny of the sciences applied to pedestrian collision investigation and are little more than speculative and unsubstantiated assumptions based in the understandably inadequate understanding of this type of collision event at the time."

[311]

"I ERIC EDGAR COOKE now of Fremantle Prison say. On the 10th Feb 1963 between 9 & 10 PM I stole a Holden sedan car, a two Tone, blue. This car was parked in the driveway of a houses [sic] on the junction of Leonora & Sounders St Como. The keys were in the lock, I removed the dome light globe. This car I drove over the Narrows Bridge & into the western suburbs. When I arrived in Double View, I parked this car in Vera Street in a Service Station yard. I then prowled around in that area for a little while. After getting into one house & seeing no other opportunities I went back to the car. This I drove through Wembley Downs & along to Perry Lakes Stadium. I turned right into Stevenson Drive & drove towards West Coast Hwy. From there I drove to the junction of West Coast Hwy & Alfred St Mt Claremont. Here I turned left towards Graylands, after driving down Alfred Rd, near the junction of Stubbs Tce & Alfred Rd. I saw on my left walking on the road towards me a man & woman. In between the two was a little girl in a white dress. As soon as I saw them I decided to run then down - But after seeing the little girl in the middle I didn't. For I thought of my little kids at home & how I would of felt if that had happened to one of them like that. Turning into Stubbs Tce I drove towards Shenton Park subway (Nicholson Rd) when I were near the subway I saw a scooter driven towards me, on it were a man & woman, the man was driving I then decided to run these two over as I saw they weren't wearing safety helmets. When I turned around & started after them they were quite a fair way in front of me & I just over took them in Graylands on the hill in Alfred Rd. When I were just about to hit them a car was coming towards me, in the other direction. So I waited a bit longer for another try, then after doing a right hand signal the scooter turned into Davis Rd & went in the direction of CMH. I then drove up to Mt Claremont where I turned around again towards the subway in Shenton Park. When I reached the subway I was obliged to stop for a car, which was on my right hand side. This car carried on in Selby St & while I were waiting for the traffic to clear, I saw a young girl walking from under the subway on the side of the road. After being cheated of two chances before I decided that I wouldn't be cheated again. I made a U turn in Cunningham Tce & parked the car, near a telephone booth & watched her walk up the road. She was walking up Stubbs Tce towards Shenton Park railway station. I can recall she had a handbag in her hand, a flat satchel type. I waited a few minutes for a few cars to go past her & me, then I started the motor & drove up toward her. When this girl was near a factory (Wembley Wrought Iron Works) I drove the car straight at her, at the time struck her I were doing 40 MPH. I struck the girl with the right hand part of the front of the Holden car, she was scooped up onto the hood for a couple of seconds & then thrown over the bonnet. My left hand wheels were then on the gravel & sand verge of the road. When I slowed down a bit I made a right turn into Lemnos Hospital drive & back again towards where I had struck the girl. As I drove up I saw in the approximate position where the girl landed, a Simca car, with both left hand doors open. I can't recall the colour of the car, when I drove past I saw a man bending over the girl I had hit. This was right near a tree stump, opposite the railway station. I drove back to where I had first made a U turn near the telephone box & made another U turn, then drove back towards the railway station along Stubbs Tce. As I drove past where I had hit the girl I saw on the road a few bits of cosmetic stuff, which usually is in a woman [sic] purse I thought it must of come from this girls purse. Near the tree stump where the girl had come to rest there was no sign of anything & the car which I had seen before was no longer there. I drove up to Graylands & into Mengler Ave & turned into the first street on the left, this street leads to Lock St Station. Half way up on the left hand side of the street, I parked the car with the left wheels on the footpath. I got out of the car & had a look at the damages, the right front grill was stove in - between the right head light & the centre of the grill. On the hood was a dent & on the bonnet or roof were about 4 spots of blood, which I wiped off with my hanky. I then got back into the car & drove the way I had come. Going under the Shenton Park Subway I drove up Nicholson Rd to Rokeby Rd there I turned right & drove the car into Kings Park. I turned left into the Drive & after going about 40 yards I picked out a tree & drove the car up against it. This was to give the impression that someone had used the car to joy-ride & lost control of it I jumped out the car through the left hand door & walked through the bush onto a path & through to Thomas Street near the Home of Peace. I walked up to PMH & rang for a taxi which I took home to Gladstone Road Rivervale.

I confirm that the above statement is true to the best of my recollection."

[322]

"Out of court statements are not evidence of the truth of what is said unless the statement falls within an exception to the rule against hearsay. One such exception admits evidence of a confessional nature against the maker. Another renders admissible a statement made by a third party, since deceased, which is against his or her pecuniary or proprietary interest.

As the law stands in this country, there is no exception to the hearsay rule which renders admissible either against or in favour of an accused hearsay evidence of a confession by a co-accused or by a third party [See, eg, In re Van Beelen (1974) 9 SASR 163; R v Szach (1980) 23 SASR 504; Wade v Gilroy [1986] FamCA 6; (1986) 83 FLR 14; R v Greatorex (1994) 74 A Crim R 496]. No Australian court, at least in any reported decision, appears to have taken the approach adopted by the Court of Appeal in England in R v Beckford [[1991] Criminal Law Review 833] that if the consequences of inadmissibility are that the jury does not hear an alternative version of the events giving rise to the charge, the conviction of an accused may be unsafe and unsatisfactory and accordingly set aside. It should be noted that in Beckford the co-accused did not give evidence and the prosecution was unable to give evidence of the confession because the trial judge held that it was not given voluntarily [In R v Rogers [1995] 1 Cr App R 374 at 381 a differently constituted Court of Appeal refused to apply Beckford on the ground that the decision 'turns upon its own special facts'].

In Lobban v The Queen [[1995] 1 WLR 877; [1995] 2 All ER 602] the Privy Council said that a judge in a criminal trial had no discretion to exclude the exculpatory part of a mixed statement containing admissions as well as an exculpatory explanation on which a defendant wished to rely, notwithstanding that the exculpatory material was prejudicial to a co-defendant. Their Lordships said that where the admission of evidence which was admissible against one defendant but not against his co-defendant resulted in real risk of prejudice to the co-defendant, the judge should ensure that the interests of the co-defendant were protected by explicit directions to the jury to the effect that the statement of one co-defendant was not evidence against the other or, in the last resort, by ordering separate trials [See also Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41 at 56, 62-67, 80-81, 92-95, where the Court discussed the warning to be given when an accused gives evidence implicating another accused].

The appellant submits that while support for his submission is lacking in decisions of the Australian courts, this Court should adopt the approach taken in Canada and the United States and hold that a third party confession, at any rate a confession by a co-accused which exculpates an accused, is an exception to the rule against hearsay. The appellant prays in aid statements in decisions of this Court that the hearsay rule should not be applied inflexibly [The appellant referred to Walton v The Queen [1989] HCA 9; (1989) 166 CLR 283 at 293-294; R v Benz [1989] HCA 64; (1989) 168 CLR 110 at 117-118, 121, 143-144; Pollitt v The Queen [1992] HCA 35; (1992) 174 CLR 558 at 593-596, 609-611, 620-621]."

[334]

"In Chambers v Mississippi [(1973) [1973] USSC 32; 410 US 284] the issue before the Supreme Court upon certiorari was whether there had been a violation of the constitutional right of the accused to due process by reason of a combination of two matters. The first was refusal to permit Chambers to cross-examine a third party who had made but later repudiated a written confession; Chambers had called the third party and he was in court. The second was the rejection, as hearsay, of the testimony of three persons to whom the third party had confessed. The Supreme Court held [Chambers v Mississippi at 302] that, taking these two matters together, the result had been a denial of due process. The Court pointed out [at 301] that, in Donnelly, the declarant had been unavailable at the time of the trial. Further, since Donnelly there had been a change in the applicable law of evidence. Exclusion of declarations against penal interest was no longer required under the new Federal Rules of Evidence which took effect on 1 July 1973. Rule 804(b)(5) provides that, if the declarant is unavailable as a witness, a statement is not excluded by the hearsay rule if a court determines that the statement is offered as evidence of a material fact, it is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts, and the general purposes of the Rules and the interests of justice will best be served by its admission. However, such a statement may not be admitted under this exception unless the proponent of it has made known his intention and given particulars to the adverse party sufficiently in advance of the trial to provide a fair opportunity to prepare to meet it.

In Chambers, the Supreme Court was not ruling upon the common law of Mississippi. However, it noted [at 299-300] that a number of States had discarded the common law rule which denied any exception to the hearsay rule in favour of declarations made against the penal interest of the declarant, and stated that the rationale for the traditional position had been the subject of considerable scholarly criticism. The Court also observed that, in the instant case, the circumstances provided 'considerable assurance of ... reliability' [Chambers at 300. The existence of comparable circumstances is discussed in People v Craven (1973) 299 NE 2d 1; People v Fletcher (1975) 546 P 2d 980; People v Pietrzyk (1977) 369 NE 2d 1299. See also People v Edwards (1976) 242 NW 2d 739 where a majority of the Supreme Court of Michigan treated reliability as going to weight rather than admissibility]."

[363]

"In my opinion the case for the Crown was of great probative strength; such criticism as has been levelled I have dealt with. The criticism is no different from what one may expect to find in any case where as here the bulk of the evidence carries conviction.

I propose now to examine the alleged confession by Cooke in the light of this evidence. He first claimed to have killed Brewer in an oral statement to the police in September last year, nearly four years after Miss Brewer's murder. There are marked variations in his statement now before the Court, a statement which purports to be vouched for by his affidavit. Cooke's shocking character needs no expatiation. He has some odd notions as to his obligation to tell the truth in and out of Court. Out of Court he can, he thinks, lie as he likes and he does so. In Court his handling of the truth is no different. He took some pride in telling a pack of lies to Dr Prendergast, a mental specialist who examined him some years prior to the happenings discussed here. He draws a subtle distinction between an affidavit such as the one he made in this instance in support of the appeal being sworn 'by Almighty God', and the verification of the statement attached. Although he certifies on the statement that he read it through and found it correct, he averred in cross-examination that was not a fact. He said in cross-examination that he only read a part so that if there are mis-statements or untruths that does not worry him (pp337, 338 transcript). His statement that he did not read it through is a gross lie as Mr Smith, Beamish's solicitor was present, no doubt to see that as far as possible with a person like Cooke all precautions were taken. Later on, under cross-examination, Cooke changed his mind and admitted he did read the statement through before he signed it.

The nature of the crimes he has committed and in which his guilt is beyond question stamps him as a monster. But Mr Burt argues that is of minimal significance if it can be shown that his story is cogent and reasonable i.e. plausible - which seems rather difficult if not practically impossible to establish when one has to depend on him for the central or essential details. It is necessary to examine his story in the light of the central facts relating to the murder and see how far it is sustained.

It has given me the greatest satisfaction that the Court insisted on Cooke being called for cross-examination by Crown Counsel: that was an experience of great benefit in adjudging on the value of his statement that he was responsible for the Brewer murder."

[381]

"The evidence adduced on the 'modus operandi point' was evidence that could not with reasonable diligence have been ascertained by the appellant and his counsel before the trial. The premise underlying that evidence is that sufficient similarity exists between the features of the two attacks to raise, at the least, a reasonable doubt about the guilt of the appellant. The principles which govern the admission of 'similar fact' evidence as part of the Crown case to establish identity against an accused person have been extensively discussed in recent years by the High Court in Markby v R [1978] HCA 29; (1978) 140 CLR 108; 21 ALR 448; Perry v R [1982] HCA 75; (1982) 150 CLR 580; 44 ALR 449; Sutton v R [1984] HCA 5; (1984) 152 CLR 528; 51 ALR 435 and Hoch v R [1988] HCA 50; (1988) 165 CLR 292; 81 ALR 225. Those principles require that there be a striking similarity between the circumstances of the offence charged and the circumstances of other offences about which evidence is sought to be adduced to implicate the accused. The requirement reflects the recognition that 'similar fact' evidence is likely to be unfairly prejudicial to the accused and that a jury might attach too much importance to it: Perry v R per Gibbs CJ (CLR at 585); Sutton v R per Brennan J (CLR at 547). Different considerations apply where it is an accused person who seeks to adduce 'similar fact' evidence as part of his defence. The risk that the jury will attach undue importance to the evidence and may misuse it to the prejudice of the accused will not arise: Knight v Jones; Ex parte Jones [1981] Qd R 98 at 101-2, 108. Nevertheless the proposed 'similar fact' evidence must pass the basic test of relevance to be admissible.

Counsel for the appellant has argued the appeal on the assumption that the 'similar facts' put forward will be admissible if there is a 'striking similarity' between the crimes committed on 2 July 1988 and those committed on 4 July 1988. That the evidence must meet this stringent requirement finds support in R v Livingstone [1987] 1 Qd R 38 at 43-4. Where it is the prosecution which seeks to lead 'similar fact' evidence, that evidence, to meet the criterion of admissibility, must reveal 'striking similarities', 'unusual features', 'underlying unity', 'system' or 'pattern' (Hoch v R (CLR) at 294-5; Thompson v R [1989] HCA 30; (1989) 86 ALR 1 at 28), before it will have sufficient probative force to outweigh the risk of prejudice to the accused. But where that risk is not an issue, and recognising that to make good a defence the accused need only raise a reasonable doubt as to guilt, there is reason to hold that the criterion of admissibility is somewhat lower. In Knight v Jones; Ex parte Jones, Macrossan J at 108-9 expressed the opinion that the test of admissibility will be more akin to the test applicable in civil cases. The test to be applied in civil cases is discussed by the Full Court of South Australia in Sheldon v Sun Alliance Australia Ltd (1989) 53 SASR 97 at 102, 144-8, 155. Bollen J, with whom Prior J agreed on this point, considered (at 148) that evidence of 'similar facts' will be admitted in civil cases if that evidence is logically probative, ie if it is logically relevant in determining the matter which is in issue.

In Duff v R [1979] FCA 83; (1979) 28 ALR 663; 39 FLR 315 at 347-50 a Full Court of this court considered the admissibility of evidence which the accused at trial sought to lead as 'similar fact' evidence. The court said (ALR at 689; FLR at 348):

[392]

"As we understand Mr Borick's argument, the course of reasoning leading to the drawing of the suggested inference included steps that may, and should, be thus expressed: Police are experienced and skilled in the investigation of homicides; they do not direct close attention to a particular person to whom their inquiries have led them unless there are good reasons for doing so; the interviews and tests undertaken suggest that the police were paying close attention to Sandercock, and therefore suspected him; the jury should, on that account, also suspect Sandercock; it follows there is a reasonable possibility that Sandercock is guilty and not the accused.

It seems to us that to reason in that way would be to deprive the jury of the most important power and responsibility that they possess, namely, that of using their own reasoning, based upon the ordinary course of events and the ways of men and women, and of coming to a conclusion upon the evidence duly adduced before them. It would be wholly impermissible for a jury to regard themselves as bound or even encouraged to accept police reasoning in substitution for their own. Unless the jury is working in an area covered, to their satisfaction, by opinion evidence, given by duly qualified expert witnesses, the act of discarding their own basis of reasoning would amount to an abdication of their constitutional function as finders of fact, and the liberty - a fortiori, the duty - to perform that function would be lost or repudiated. One can imagine the alarm and despondency that would be created if the prosecution were permitted to resort to similar reasoning to support the Crown case. It is perhaps desirable to add that what police officers do at a given time may, of course, be used to determine what they then believed, or what else they did, before, at that time, or subsequently, assuming that that belief or those actions are relevant; but a clear distinction must be drawn between the proper use of such evidence, and the sort of use Mr Borick urged us to make of the evidence above referred to."

[405]

260 At the time of the 1964 application for an extension of time to appeal, Mr Cooke's solicitor, Mr B P Kakulas, who had been junior counsel at the appellant's trial and on the appeal, was aware that Mr Cooke had made confessions to the police admitting his culpability in hit and run vehicle attacks on Neeltje Schneider, Kathleen Bellis, Glenys Woosnam, Jill Connelly, Georgina Perks, Maureen Greenhalgh and Terese van den Bosch. These matters were investigated since it was being suggested that Mr Cooke's evidence was wholly incredible. A private investigator was engaged. As a result of some information obtained from him, the Crown conceded that Mr Cooke did have a propensity for running people down. In the course of an interview, Mr Cooke told Mr Kakulas that he had made a number of written confessions about these matters to the police. The Crown refused access to these confessions with the result that Mr Cooke's legal advisers were unaware of the details and of the fact that the confessions may have been corroborated by the evidence of the victims. As the Crown had made a concession about Cooke's propensity, the matter was not further pursued. Consequently, neither at the time of the trial or of the appeal did Mr Kakulas or senior counsel for the appellant have access to the statements by the various victims of the hit and run incidents. In cross-examination before us it was put to Mr Kakulas that the Crown did not accept that Mr Cooke was the perpetrator of the hit and runs. Mr Kakulas explained that it was on the basis of a concession by the Crown that the police investigations indicated that each of the confessions was substantially reliable that counsel did not call evidence from the three of the persons involved, whom they had been able to locate. It was made clear before us that by the Crown, however that, while the police may have accepted a number of propositions in relation to the hit and run incidents, the Crown did not accept as an agreed fact that Mr Cooke was the perpetrator.

[431]

"In May 1960 I was temporarily employed in Victoria Park when I finished work the night in question - it was a Friday. I went into town & caught a train to Swanbourne. After prowling that area for a time, I took a Holden sedan car from a house in Rob Roy St. This car was parked alongside the house in the drive. As I was driving this car it started to rain & continued to do so for many hours. I drove this car into the suburb of Doubleview, where I parked this car outside of a church. I then walked over to the main road and down Grant St. I got into a house in Grant St ...

After leaving that house I walked to Ewan St up the hill, all the time prowling for more places to rob. At the corner of Ewan & Huntriss Sts I saw a big American make car a Chrysler or Dodge, the keys were in the ignition. This car was also an automatic transmission, I remember this for it's the first type I had ever driven. I drove out in the direction of Victoria Park & around these areas. After a while I drove this car along Railway Cres when I were near the Queens Park Railway Station I saw the train pull away & people crossing the road. I pulled over & waited for a while then started up again & turned into George St. As I drove up the street I saw on my left 3 people walking in the same direction as I were travelling, that is towards Welshpool Rd. As I passed these people I saw they were all females one of which was a girl of about 10 or 12. They gave me a sign as if they wanted a lift - for it was still raining. I took no notice & drove along till I came to Cross St into which I turned left & again left in Treasure Rd. [I went] Along Treasure Rd till I came to Centre St. I turned left again & stopped in the middle of that block for a couple of minutes. I then started up the motor & drove back to George St turned left again & along here to where these girls were walking.

I aimed the car at the 2 bigger girls - the youngest one was walking next to the verge of the roadway. I struck these 2 girls & I think I carried one of them on the bonnet of the car for a little distance. I turned again into Cross St - left into Treasure Rd, along Railway Cres till Oats St railway crossing turned left there & abandoned the car in one of the streets near there. Near the corner of Beatty Ave & Somerset St Carlisle - I then walked home to Rivervale. The time this hit & run was about midnight, I have shown the detectives whereabouts I had struck the girls in George St & it is about 200 yards along from the intersection of George & Centre Sts."

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (528 paragraphs)

Button v The Queen [2002] WASCA 35 (25 February 2002)

Fresh evidence regarding damage to appellant's vehicle

Parties

Legislation Cited (2)

Cases Cited (30)