Criminal law - Practice and procedure - Petitioner convicted of wilful murder in 1961 - Whether wrongly convicted - Appeal by reference from AttorneyGeneral on petition for exercise of Royal Prerogative of Mercy - Whole case to be heard and determined as if an appeal - Whether there was a miscarriage of justice
Evidence - Fresh evidence - New evidence - Fresh or new evidence of confessions and similar fact evidence implicating deceased third party - Distinction between "fresh" and "new" evidence - Applicable test in case of fresh evidence
Evidence - Admissibility and relevancy - Documentary evidence - Business records include Police departmental documents - Written confessions made by deceased third party - Whether the third party was a "qualified person" within the meaning of s 79C of the Evidence Act 1906 - Whether statements made in the course of or for the purpose of investigation of alleged offence or preparation of prosecution case in respect of an offence - Section 79C(4) of the Evidence Act 1906 - Whether confessions were cogent and credible - Existence of similar fact evidence of a third party's propensity to commit violent crimes against young, single women in the course of early morning home invasions - Test for admissibility - Whether relevant - Prosecution's duty of disclosure - Whether nondisclosure of evidence by Prosecution
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Beamish v The Queen [2005] WASCA 62
Case
[2005] WASCA 62
Decision Date
CaseChat Overview and Summary
The matter under consideration is an appeal by reference made by the Attorney-General, under section 140(1)(a) of the Sentencing Act 1995 (WA), of a petition by the petitioner, Beamish, for the exercise of the Royal Prerogative of Mercy. The petitioner was convicted in 1961 of the wilful murder of Jillian Brewer and has long maintained his innocence. The petitioner's appeal is premised on the alleged discovery of fresh or new evidence, which he contends demonstrates that he was wrongly convicted. This evidence includes the confession of a third party, Eric Edgar Cooke, who confessed to Brewer's murder after the petitioner's conviction and was subsequently executed for another murder. The petitioner's appeal is based on the alleged existence of this new evidence, which he claims was not available or known at the time of his trial and appeal. The central legal issues in this case revolve around the nature and admissibility of the new evidence presented by the petitioner and whether this evidence, if accepted, demonstrates a miscarriage of justice. Specifically, the Court must determine whether the new evidence is indeed fresh or new, as opposed to merely old evidence that was previously available or known. Furthermore, the Court must consider whether the new evidence, if admitted, is cogent and credible, and whether it demonstrates that the petitioner was wrongly convicted. Another key issue is whether the new evidence satisfies the statutory requirements for admissibility under the Evidence Act 1906 (WA), particularly in relation to the admissibility of documentary evidence and the written confessions of the deceased third party.
In addressing these issues, the Court considered the distinction between fresh and new evidence and the applicable test for fresh evidence. The Court held that the new evidence presented by the petitioner, namely the confessions of Eric Edgar Cooke, was not fresh evidence but rather new evidence. The Court reasoned that the new evidence was not fresh because it was not newly discovered or unknown at the time of the original trial and appeal, but rather was known to the authorities and the petitioner at the time of his appeal. The Court also considered the admissibility of the new evidence, specifically the written confessions of Cooke, and whether they were cogent and credible. The Court concluded that the new evidence was not cogent and credible because it was based on the unsupported and uncorroborated statements of a deceased third party. Furthermore, the Court held that the new evidence did not demonstrate a miscarriage of justice because it did not establish that the petitioner was wrongly convicted. The Court held that the new evidence did not rebut the evidence against the petitioner and did not establish that Cooke was the actual perpetrator of the crime. The Court also held that the prosecution's duty of disclosure was not breached by the non-disclosure of the new evidence because the new evidence was not available or known at the time of the original trial and appeal.
The Court ultimately dismissed the petitioner's appeal and held that there was no miscarriage of justice. The Court found that the petitioner had not established that he was wrongly convicted and that the new evidence did not rebut the evidence against him. The Court held that the new evidence was not cogent and credible and did not demonstrate that the petitioner was wrongly convicted. The Court also held that the new evidence did not satisfy the statutory requirements for admissibility under the Evidence Act 1906 (WA). The Court did not make any orders in relation to the petitioner's appeal.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
WHEELER J
JUDGMENT OF THE COURT: The petitioner ("Beamish") was convicted on 15 August 1961, more than 43 years ago, of the wilful murder of a young woman, Jillian Brewer. He was then 20 years old. The murder was committed on 20 December 1959, when Beamish was 18 years old. He was sentenced to death, but his sentence was later commuted to one of life imprisonment. He appealed against his conviction in September 1961. His appeal ("the first appeal") was dismissed by the Court of Criminal Appeal on 20 October 1961 (Beamish v The Queen [1962] WAR 85). An application to the High Court for special leave to appeal was dismissed on 11 December 1961. On 10 September 1963, Eric Edgar Cooke, who had been arrested some nine days earlier on unrelated charges, confessed to having killed Brewer. This led Beamish to petition the Attorney‑General "for the exercise of Her Majesty's mercy". Under s 21(a) of the Criminal Code (WA) (as it then stood), the Attorney‑General referred the whole case to the Court of Criminal Appeal for it to be determined by that Court "as in the case of an appeal by a person convicted". That appeal ("the 1964 appeal") was also unsuccessful. It was dismissed by the Court of Criminal Appeal on 22 May 1964. Beamish sought special leave to appeal to the High Court of Australia. That application ("the second special leave application") was dismissed on 14 September 1964. On 12 April 1965 Beamish's petition to the Privy Council for special leave to appeal against the decision of the Court of Criminal Appeal given on 22 May 1964 was dismissed. Beamish served his sentence until ultimately released on parole. Beamish claims, now, to have discovered fresh or new evidence which shows that he was wrongly convicted. He brought a petition to the Attorney‑General in respect of it. On 25 June 2002 the Attorney‑General referred the petition to this Court under the provisions of s 140(1)(a) of the Sentencing Act 1995 (WA). That section has replaced the former s 21(a) of the Code. It provides that:"(1)A petition for the exercise of the Royal Prerogative of Mercy in relation to an offender convicted on indictment … may be referred by the Attorney General to the Court of Criminal Appeal … -(a) for the whole case to be heard and determined as if it were an appeal by the offender against the conviction …". The task of this Court, in a referral of this kind, has been explained by the High Court in Ratten v The Queen (1974) 131 CLR 510 and in Mickelberg v The Queen (1989) 167 CLR 259. In Ratten, the Court considered s 584 of the Crimes Act 1958 (Vic). That section empowered the Attorney‑General, on the consideration of a petition for the exercise of Her Majesty's mercy, to "refer the whole case to the Full Court" to be "heard and determined by that Court as in the case of an appeal by a person convicted". Barwick CJ (with whom McTiernan, Stephen and Jacobs JJ were in agreement) said (at 514) of that section that:"As the Full Court was required to treat the reference to it under s 584 as an appeal, it was bound in dealing with it to act upon legal principles appropriate to an appeal. Thus, although all the material supporting the applicant's petition formed part of the whole case to be considered by the Court, the ordinary principles as to admissibility of evidence must be applied in the consideration of that material, so much of it as would be inadmissible being ineffective to influence the resolution of the matter."