Beamish v The Queen - [2005] WASCA 62

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: BEAMISH -v- THE QUEEN [2005] WASCA 62

CORAM: STEYTLER J
WHEELER J
MCLURE J

HEARD: 11, 12, 13 & 14 OCTOBER 2004

DELIVERED : 1 APRIL 2005

FILE NO/S: CCA 130 of 2002

BETWEEN: DARRYL RAYMOND BEAMISH
Petitioner
AND
THE QUEEN
Respondent

Catchwords:

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

Legislation:

Criminal Code (WA), s 21(a), s 687(6)

Evidence Act 1906 (WA), s 21, s 79C

Sentencing Act 1995 (WA), s 140(1)(a)

Result:

Appeal allowed; conviction set aside

Category: A

Representation:

Counsel:

Petitioner: Mr T P Percy QC, Mr J A Davies &
Mr F C Voon
Respondent: Mr S E Stone & Mr L M Fox

Solicitors:

Petitioner: Dawson Davies
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Bannon v The Queen (1995) 185 CLR 1
Beamish v The Queen [1962] WAR 85
Bradshaw v The Queen, unreported; CCA SCt of WA; Library No 970228; 13 May 1997
Button v The Queen (2002) 25 WAR 382
Caratti v The Queen (2000) 22 WAR 527
Cheney v The Queen (1991) 28 FCR 103
Duff v The Queen (1979) 39 FLR 315
Dunning v Federal Commissioner of Taxation (1972) 3 SASR 210
Esso Australia Resources Ltd v Commissioner of Taxation (Cth) (1999) 201 CLR 49
Gallagher v The Queen (1986) 160 CLR 392
Hoch v The Queen (1988) 165 CLR 292
In re Van Beelen (1974) 9 SASR 163
Knight v Jones; Ex parte Jones [1981] Qd R 98
Lawless v The Queen (1979) 142 CLR 659
Mallard v The Queen (2003) 28 WAR 1
Markby v The Queen (1978) 140 CLR 108
McKay v Hutchins and Fire & All Risks Insurance Co Ltd [1990] 1 Qd R 533
Mickelberg v The Queen (1989) 167 CLR 259
Mickelberg v The Queen (2004) 29 WAR 13
Mickelberg v The Queen, unreported; CCA SCt of WA; Library No 990056; 12 February 1999
Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority (2002) 4 VR 332
Nolan v The Queen, unreported; CCA SCt of WA; Library No 970260; 22 May 1997
Perry v The Queen (1982) 150 CLR 580
R v Brown (Winston) [1994] 1 WLR 1599
R v Easterday (2003) 143 A Crim R 154
Ratten v The Queen (1974) 131 CLR 510
Ritz Hotel Ltd v Charles of the Ritz Ltd (Nos 15 & 16) (1988) 14 NSWLR 107
Sheldon v Sun Alliance Australia Ltd (1989) 53 SASR 97
Sutton v The Queen (1984) 152 CLR 528

Case(s) also cited:

Australian Competition and Consumer Commission v SIP Australia Pty Ltd [2000] FCA 1476
Hobby v The Queen, unreported; CCA SCt of WA; Library No 990013; 22 January 1999
Livesey v New South Wales Bar Association (1983) 151 CLR 288
Mickelberg v The Queen, unreported; CCA SCt of WA; Library No 970749; 30 October 1997
Palmer v The Queen (1998) 193 CLR 1
Pollitt v The Queen (1992) 174 CLR 558
R v Benz & Murray (1989) 168 CLR 110
R v Brown [1998] AC 367
R v Hanratty [2002] 3 All ER 534
R v Tan (2002) 128 A Crim R 286
R v Turner [1975] QB 834
Rogers v The Queen (1994) 181 CLR 251
Vakauta v Kelly (1989) 167 CLR 568
Vocisano v Vocisano (1974) 130 CLR 267
Walton v The Queen (1989) 166 CLR 283

TABLE OF CONTENTS

The Petition
This Court's Task
Fresh/New Evidence
The Test to be Applied
The Trial

The 7 April Confession
The Written Confession on 8 April
Deering's Evidence
The Courtyard Writing
The 12 June Confession
Beamish's Evidence
Beamish's Parents

The First Appeal
The 1964 Appeal

Cooke's Arrest
His Confessions to Other Murders
Cooke's Trial
Cooke's Confessions to the Killing of Anderson and Brewer
The Alleged Retraction
Cooke's Statement to Mr Smith
The Judgment of Wolff CJ
The Judgment of Jackson SPJ
The Judgment of Virtue J

The Second Special Leave Application and the Appeal to the Privy Council
The Fresh or New Evidence Now Relied Upon

Issues of Admissibility
Section 79C of the Evidence Act

Alix Cooke (formerly Doncon)
Admissibility of MFI 14, 15, 23 and Cooke's Confession
Anne Whitsed (formerly Melvin)
Admissibility of MFI 18, 19 and Cooke's Confession
Margaret Fleury
Admissibility of MFI 11, 12, 13 and Cooke's Confession
Carmel Tonks (formerly Read)
Admissibility of MFI 20, 21, 22 and Cooke's Confession
Mary MacLeod
Cooke's Confessions to the Murder of Patricia Berkman (MFI 25) and Lucy Maddrill (MFI 24)
Miscellaneous police documents
Statement by Rev G Jenkins

Evidence To Which No Objection Was Taken
Evidence Introduced on Behalf of Beamish
Evidence Tendered on Behalf of the Respondent

Grounds of Appeal
Ground 1 - Evidence of Similar Facts
Ground 2 - Prompting of Beamish as to the Disposal of the Murder Weapon
Ground 2A - The Method of Entry
Ground 3 - Sergeant Nielson
Ground 6 - Brewer's Ability to Speak
Ground 7 - Fresh Evidence of Police Investigation

The Theft of Holden UEY-743
The Barking Dog
The Back Door
Mrs Northey's Statement
Mr and Mrs Summerhayes
O'Dea

Northcott

Balmer

Dinnie

Ground 9 - The Gallows Confession
Ground 10 - Fresh Evidence Accepted in Button v The Queen (2002) 25 WAR 382
Summary of Findings in Respect of These Grounds
Approach Which the Court Must Now Take
Is the Gallows Confession Cogent and Credible?
Conclusion

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.

The Petition

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 …".

This Court's Task

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."
In Mickelberg, the Court considered s 21 of the Code, which we have mentioned above. Toohey and Gaudron JJ (with whom Mason CJ and Brennan J were, on this point, in agreement) said (at 311 ‑ 312):
"Prima facie, the reference of the whole case required the Court of Criminal Appeal to consider the case in its entirety, subject only to the limitation that it 'be heard and determined ... as in the case of an appeal by a person convicted'. That limitation necessitates that the matter be determined by 'legal principles appropriate to an appeal': Ratten (1974) 131 CLR at p 514, per Barwick CJ. See also R v Gunn [No 1] (1942) 43 SR (NSW) 23, at p 25, per Jordan CJ and Allen, Allen and Winter (1910) 5 Crim App R 225, at p 226.
It has been held that, where the whole case is referred, the court may consider matters not relied upon in the petition (R v Gunn [No 2] (1942) 43 SR (NSW) 27, at p 31) and matters not specified in the reference (Reg v Chard [1984] AC 279). On the other hand, it has been said that, as a matter of practice, the considerations may be confined to those in the petition or the reference: see Re Matthews and Ford [1973] VR 199 at 201; Reg v Chard [1984] AC, at pp 292‑293. And in R v Gunn [No 2] (1942) 43 SR (NSW), at p 29, Jordan CJ stated:
'In a case in which there has already been an appeal which has been disposed of on the merits … the Court, in the case of a reference such as the present, is not called upon to re‑adjudicate upon any ground of appeal which has been already heard and disposed of, unless some new matter has come to light which makes a reconsideration of the ground necessary or desirable.'
The words of s 21(a) of the Code, so far as they require 'the whole case ... [to] be heard and determined', permit of only one meaning. It is the whole case which must be passed upon by the application of legal principles appropriate to criminal appeals. That being so, the power to exclude matters from consideration is properly to be seen as an aspect of the inherent power of a court to control its own proceedings. That power will authorize the exclusion of issues which are frivolous or vexatious: see Jackson v Sterling Industries Ltd (1987) 162 CLR 612; Tringali v Stewardson Stubbs & Collett Ltd (1966) 66 SR (NSW) 335; Metropolitan Bank v Pooley (1885) 10 App Cas 210. However, subject to an issue being properly excluded as frivolous or vexatious, it is, in our view, the duty of a court to which there has been a reference of the whole case to pronounce upon the whole case as presented."
An understanding of the circumstances in which an issue might properly be excluded as "frivolous or vexatious" is to be gained from the subsequent discussion by their Honours of one ground of appeal, of which they observed that (at 312):
"Whatever the Court of Criminal Appeal might previously have said relating to Peter's conviction for conspiracy, it was not said in the course of an adjudication on the merits as to that conviction. As previously noted, Peter's earlier appeal was limited to his convictions for breaking and entering and setting fire to the premises from which the cheque forms were stolen. That being so, the issue of inconsistency as raised in ground 8 of Peter's grounds of appeal could not properly be excluded as vexatious or frivolous on the basis that it had already been determined on the merits after full opportunity for argument." (our emphasis)
The effect of what was said in these cases is that this Court is required to consider the case in its entirety, but subject to the limitation that it is bound to act upon legal principles appropriate to an appeal: Button v The Queen (2002) 25 WAR 382 at 386 ‑ 388; and Mickelberg v The Queen (2004) 29 WAR 13 at [409]; cfMallard v The Queen (2003) 28 WAR 1 at [7] and [8], per Parker, Wheeler and Roberts‑Smith JJ. We shall return to this topic below.

Fresh/New Evidence

Because this appeal relies upon fresh or new evidence, and because the distinction between "fresh" and "new" evidence is significant, it is necessary to say something about that distinction.
"Fresh" evidence is evidence which either did not exist at the time of the trial or which could not then with reasonable diligence have been discovered. "New" evidence is evidence which was available at the trial or which could, with reasonable diligence, then have been discovered.
The rationale for a Court of Criminal Appeal setting aside a conviction on the ground of fresh evidence has been said by Toohey and Gaudron JJ in Mickelberg (1989), above, at 301, to be that the absence of that evidence from the trial was, in effect, a miscarriage of justice. (See also Gallagher v The Queen (1986) 160 CLR 392 at 395, 402 and 410.) It is implicit in the parties' submissions that in this case the test of fresh or new evidence should be applied by reference to what was known or discoverable with reasonable diligence at the time of the 1964 appeal. We accept that that is the correct approach.
In the case of new evidence different considerations have been said to apply. In Lawless v The Queen (1979) 142 CLR 659, at 675 - 676, Mason J said:
"However, it is not permissible for a court of criminal appeal to set aside a conviction if the newly adduced evidence, not being fresh evidence strictly so called, reveals no more than a likelihood that the jury would have returned a verdict of not guilty. Two considerations operate to bring about this result. The first is that in a criminal trial the accused is entitled to decide how his case will be conducted, in particular, what evidence he will call. He makes this decision in the light of the knowledge that he is tried but once, unless error or miscarriage of justice results in a successful appeal. He cannot therefore conduct his defence by keeping certain evidence back in the expectation that, if he is convicted, the existence of the uncalled evidence will provide a ground for a second trial at which a different or refurbished defence may be presented. Accordingly, an accused person, if convicted, generally cannot complain of a miscarriage of justice if he deliberately chooses not to call material evidence, it being actually available to him at the time of the trial, or if he fails to exercise reasonable diligence in seeking out material evidence.
The second consideration is that there must be powerful reasons for disturbing a conviction obtained after a trial which has been regularly conducted. … If the evidence newly adduced falls short of establishing that the accused should not have been convicted, there is no overwhelming reason why the conviction, regularly obtained after a fair trial should not be allowed to stand."
Similarly, in Mickelberg (1989), above, at 301, Toohey and Gaudron JJ said:
"There is no miscarriage of justice in the failure to call evidence at trial if that evidence was then available, or, with reasonable diligence, could have been available: see Ratten v The Queen (1974) 131 CLR 510, at pp 516 - 517, per Barwick CJ …".
It has been suggested that the distinction between fresh and new evidence is not as significant as it once was: see, for example, Nolan v The Queen, unreported; CCA SCt of WA; Library No 970260; 22 May 1997, per Malcolm CJ with whom Pidgeon and Murray JJ were in agreement. However, as was pointed out by the Court in Mallard, above, at [12] and [13], the distinction is one which is soundly based in principle and which continues to be recognised: see, for example, R v Easterday (2003) 143 A Crim R 154 at [204], although, as was noted in Ratten, at 517, and again in Mickelberg (1989), at 301, there may be somewhat greater latitude in the case of criminal trials than in the case of civil trials (see also Mallard at [14]).

The Test to be Applied

Where the evidence is fresh, the test appears to be that of whether the petitioner has established that there is a significant possibility that, in the light of all the admissible evidence (including that given at the trial), a jury, acting reasonably, would have acquitted him or her. Cases supporting that proposition include Gallagher, above, at 399, 402 and 421; Mickelberg (1989), above, at 273, 275 and 302; and Mallard, above, at [16]. In Mickelberg v The Queen, unreported; CCA SCt of WA; Library No 990056; 12 February 1999, the more material authorities were conveniently summarised in the following extract (at 19 ‑ 22):
"Where an appeal is based upon evidence which was not called at trial, a number of authorities have explored the way in which such evidence may demonstrate that a miscarriage of justice occurred.
…
In Lawless v The Queen (1979) 142 CLR 659 Aickin J explained the task of the Court of Criminal Appeal in regard to such a determination by reference to the joint judgment of Rich and Dixon JJ in Craig v The King (1933) 49 CLR 429 at 439 (which was quoted by Menzies J in Ratten v The Queen at 526, and by Gibbs CJ at 396 in Gallagher) namely:
'A court of criminal appeal has thrown upon it some responsibility of examining the probative value of the fresh evidence. It cannot be said that a miscarriage has occurred unless the fresh evidence has cogency and plausibility as well as relevancy. The fresh evidence must, we think, be of such a character that, if considered in combination with the evidence already given upon the trial the result ought in the minds of reasonable men to be affected. Such evidence should be calculated at least to remove the certainty of the prisoner's guilt which the former evidence produced.'
Subsequently, in Gallagher v The Queen, Mason and Deane JJ expressed the test in terms of a 'significant possibility' of a jury bringing in a different verdict. Gibbs CJ (at 399) agreed (at 402) with their Honours that:
'The Court of Criminal Appeal will conclude that the unavailability of the fresh evidence at the time of the trial will have involved a miscarriage of justice if the court considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant if the new evidence had been before it at the trial.'
His Honour emphasised that:
'No form of words should be regarded as an incantation that will resolve the difficulties of every case. No test can detract from the force of the fundamental principle that the appeal must be allowed if a miscarriage of justice is shown to have occurred. It is only a practical guide to the application of that principle to say that the court will grant a new trial if, having approached the matter with the caution that is always demanded when fresh evidence is produced in a criminal case, and having weighed the credibility of the fresh evidence and considered its cogency in the light of the evidence given at the trial, it considers that a jury might reasonably have reached a different verdict if the evidence had been available at the trial'.
Dawson J expressed a test similar to that enunciated by Gibbs CJ and Mason and Deane JJ, and stated (at 421) that the court would need to conclude that 'a jury might entertain a reasonable doubt about the guilt of the appellant'.
In Mickelberg v The Queen (1989) 167 CLR 259 Mason CJ (at 273) followed the test endorsed in Gallagher v The Queen by four of the five justices and expressly approved the remarks of Dawson J which we have quoted. Brennan J (at 275) expressed his preference for a test expressed in terms of 'likely' and not 'might'. Deane J adopted the 'significant possibility' test. Toohey and Gaudron JJ (at 302) said:
'In essence, the fresh evidence must be such that, when viewed in combination with the evidence given at the trial, it can be said that the jury would have been likely to entertain a reasonable doubt about the guilt of the accused if all the other evidence had been before it ... or, if there be a practical difference, that there is "a significant possibility that the jury, acting reasonably, would have acquitted the [accused] ...". For ease of expression we proceed by reference to the formulation that the jury is likely to have entertained reasonable doubt had all the evidence been before it, noting, in that context, that it is necessary that the fresh evidence be credible in the sense that a reasonable jury could accept it as true, but it is not necessary that the court should think it likely that a reasonable jury would believe it.'
…
Although the ultimate question concerns the court's opinion as to the effect of the fresh or new evidence on a jury, it is inevitable that, in the process of answering that question, the court will form its own assessment of the credibility of the witnesses. Regard will be had to the fact that, as Mason CJ, Deane, Dawson and Toohey JJ pointed out in … [M v The Queen (1994) 181 CLR 487 at 494], 'a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced'. Regard, however, will also be had to the possibility that, in some instances, a witness regarded by the court as credible beyond reasonable doubt, may be seen by a jury in a different light, and that a jury might have a different view of a witness, regarded by the court as not being capable of belief."

See also Mallard at [15] and [17] and Mickelberg (2004) at [411] to [417].

The Trial

Before coming to the fresh or new evidence relied upon by Beamish, we should trace the history of the reference. Without that history, there can be no reliable assessment of whether or not the evidence now relied upon is fresh, or even new, and it would be difficult to evaluate its significance.
We will start with the trial.
The evidence at the trial established that Brewer was murdered, in a brutal and callous fashion, during the early hours of the morning of 20 December 1959. She had lived, with her grey poodle (known, in the neighbourhood, for its barking), in a flat in a block of six flats known as Brookwood Flats in Stirling Highway, Cottesloe. There were three flats in a row at ground level. The other three flats were directly above them. Brewer's mother, then Mrs Betty Johnson (now Mrs Northey), lived in the centre flat on the ground floor, which adjoined Brewer's flat. Brewer's bed had its head towards some "hopper" type windows on the north‑east wall.
Brewer spent the evening of 19 December 1959 with her fiancé, Andrew Dinnie. He left at almost exactly midnight. Brewer was then nude, in a double bed, with a sheet pulled over her body. The dog was asleep under her bed. There was, according to Dinnie, a small passage light burning. That light was usually left on at night. It was about two feet outside Brewer's bedroom door, which was open. The front door of the flat was locked. Dinnie left by that door. He pulled it shut behind him. The back door was found, on the following morning, to be locked. The key was still on the inside of the door. The windows of the bedroom were open but were covered with wire screens secured to the window frames. Both windows were covered by curtains. However, on one of them the curtains did not quite overlap, leaving a gap in the middle. On the other, one of the runners across the top of the window was broken, leaving a gap at one end.
Dinnie had arranged to return to Brewer's flat at 9 am the next day. The two were to play golf together. When he arrived, he was surprised to see that the front door was closed. Brewer's dog was jumping up and down at the bedroom window in an excited manner. Dinnie knocked on the glass of the window and called out. He got no response and let himself into the flat with a key which he kept. The bedroom door was shut. He opened it. Brewer was lying on her bed with a sheet pulled up to her chin. The top of the sheet was folded over a pillow which rested on the sheet in the region of her breasts. Her face was covered with blood. She was on her back, with her left arm lifted out over the sheet and lying across her chest.
A medical examination disclosed that Brewer had been grievously wounded. She had three wounds on her head, extensive bruising of her neck, a severe wound to her throat and a large lacerated wound had penetrated deep into, and fractured, her pubic bone. Each of these wounds was consistent with having been caused by a small hatchet which was later found in an adjoining property. Brewer had also been stabbed in her chest and abdomen, inside her thighs and on her buttocks. The stab wounds had seemingly been caused by a pair of dressmaking scissors which were found on a tray in the living room of the flat. Although Brewer and Dinnie had had sexual intercourse shortly before he left on the previous evening, a pathological examination of swabs taken from Brewer's body produced no evidence that she had had sexual intercourse that evening and, when she was examined, she was found to be wearing an internal sanitary pad.
There was no clue as to how the person responsible had gained entry. There was no sign of forcible entry, although there was a fresh, straight cut on the flyscreen on the bedroom window near the bolt which locked the screen. There was also a hole in the flyscreen near the front door. The catch securing the flyscreen could be reached from either of the holes and opened. No fingerprints of any stranger were found in the flat.
Brewer's dog seemed to be unharmed. A Mrs de Julia and her daughter, Victoria, who lived in a flat some 75 yards north of Brewer's flat, heard a dog bark three or four times at what Mrs de Julia said was about 1 am that morning. The noise stopped in what sounded like mid‑bark. Mrs de Julia and her daughter recognised the barking as being that of Brewer's dog.
The hatchet proved to have been taken from the garage of a Mr Maxwell Watson who lived in a neighbouring street, Renown Avenue. It was normally kept hanging from a hook on the western wall of his garage. When he last saw it, it was on that hook.
The crime remained unsolved until 7 April 1961. On that day, Beamish was arrested and charged with aggravated assault on four young girls, each of whom was four or five years old. The assaults had taken place over a period of about five months. In each case Beamish had taken the child to Kings Park, removed part of her clothing and then interfered with her sexually. There was no evidence of sexual intercourse in any case. Beamish pleaded guilty to all charges. He was remanded in custody for sentence. Shortly after the remand he was taken by two detectives, Detective Sergeant Leitch and Detective Deering, to the flat in which Brewer had lived. Because Beamish was deaf and mute, the three men were accompanied by Mrs Florence Myatt, a public relations officer and interpreter for the Adult Deaf and Dumb Society. She had known Beamish for some time and had previously interpreted for him.
Leitch's evidence was that Beamish at first denied any knowledge of the flat or of the murder, but that he later confessed to the killing. He said that, when he asked Beamish what he knew about the flat, he answered, "Nothing." Undeterred, he said to Beamish that he thought that Beamish had been there before. He received no response. He asked Beamish whether he had been at the flat at night looking through the windows. The answer was, "No." The group then returned to the city in a police car because Mrs Myatt had a noon dental appointment.

The 7 April Confession

While the police car was parked outside the dentist's premises, Leitch asked Mrs Myatt to communicate these words to Beamish: "I want to find out the truth; you know we have lots of things to help us, like scientific aids and photographs. My boss wants me to find out the truth. Did you hurt the lady?" She did so. Beamish responded by saying, "Yes - finish - I want to tell the truth." In his evidence at the trial, Leitch said that the following exchange then took place:
"I said: 'What did you hurt the lady with?'; he said, 'An axe'. I said: 'Did the lady die?'; he said, 'Yes, after I hit her with the axe'. I said: 'What was the lady doing when you hit her with the axe?'; he said: 'Asleep on bed'.
I said: 'When was this?'; he said: 'A long time ago'.
I said: 'What time of the night was it?' He said: 'I haven't got a watch'. I said: 'After lights out?'. He said: 'Not sure - late'.
I said: 'How big was the axe?' He indicated with his hands the length of a tomahawk, or a hatchet.
I said: 'That is a hatchet or a tomahawk'.
He said: 'Axe'."
Mrs Myatt abandoned her dental appointment. She returned to the CIB so that she could help Leitch ask more questions of Beamish. There, according to Leitch, the following exchange occurred:
"I said: 'Is what you have been telling us the truth? That you killed the lady?' He said: 'Yes'.
I said: 'I want to warn you that you are not obliged to say anything unless you wish to do so, but if you do it may be used in evidence.' I also showed him this warning in written form. He said: 'I want to tell the truth'.
I said: 'What was the lady doing when you first saw her?' He said: 'Standing up in bedroom with no clothes on'.
I said: 'What were you doing?' He said: 'Outside looking through window'.
I said: 'Why were you looking through the window?' He said: 'Sexy'.
I then showed him a photograph of the late Jillian Brewer's flat, and the flat above it, and said: 'Where were you standing, and where is the bedroom?' He correctly showed me where the bedroom was at Flat 18, and pointed out where he was standing and looking through the window. When I went to the late Miss Brewer's flat on 20th December 1959 I saw that someone inside the bedroom could be seen by someone outside, looking into the bedroom through the curtains.
…
I said, 'How did you get in?' He said, 'Back door'. I said, 'Then what happened?'. He said, 'Hit lady on head with axe', and he made two waves with an imaginary hatchet or axe. I said, 'Did the lady die? Did the lady get off the bed?' He said, 'No, lady die'. I said, 'Where did you hit the lady?' and he grabbed a piece of scrap paper, drew a figure on a bed, and put two marks on the top of the head. I said, 'Why did you kill the lady?' He said, 'Head mixed up'. I said, 'Was there anyone else in the room?' He said, 'No'. I said, 'Are you sure?' He said, 'Nobody else'.
I said, 'Were there any animals - a cat or a dog, or anything?' and he said, 'A dog'. I said, 'How big, and what colour?' He indicated with his hand a small dog and said, 'Black, brown, dark, not sure.' I showed him the photograph of the late Jillian Brewer's dog and he said, 'Yes, like that'.
…
I said, 'Did the dog do anything?' He said, 'Dog bark'. I said, 'How would you know that?' He said, 'Can hear that' and made barking movement with his index finger and thumb. I said 'What did you do?' He made sweeping movement with his hands against the wall and said, 'Threw dog against wall; jambed [sic] door on stomach; think dog dead.' I said, 'Did you hit the lady with anything else?' Detective Deering held up pocket knife - or first he said 'More axe' - I said, 'I mean anything else besides the hatchet', or 'axe' as he called it.
… I said, 'Did you hit the dog before you hurt the lady?' He said, 'No, lady first, then dog.'
… Detective Deering held up a pocket knife. Beamish nodded his head vigorously and made a stabbing movement - one stabbing movement - at his stomach.
I said: 'Did you use a knife or something else?' He nodded his head and made three more stabbing movements towards his stomach.
I said: 'What did you use?' He made a cutting movement with his index and middle finger, and I said: 'Scissors.'
… He said: 'Yes.'
I said: 'Where did you get the scissors?' He said: 'In the bedroom.'
I said: 'Whereabouts in the bedroom?' He said: 'Not sure - on table or drawers near bed.'
He then drew a rough sketch of a room, with a figure lying on a bed, and a rectangle alongside of the bed, and pointed to the top of the rectangle.
I said: 'Were the scissors on a drawer near the bed?' He said: 'Yes.'
I said: 'What did you do to the lady with the scissors?' He made the stabbing motions again - three of them - to his stomach. I said: 'Did you stab the lady in the stomach three times?' He put up three fingers, and then four fingers, and nodded his head and said: 'Yes.'
I said: 'Did you stab the lady anywhere else?' He said: 'Can't remember.'
I said: 'Where did you go to last Christmas and the Christmas before?' He said: 'To Rockingham last Christmas and a farm at Corrigin with Mother before.' I said, 'We will return to the flat' and later we did so. At the front of Flat 18 at Brookwood Flats, I said, 'Show me how you got in.' He led the way to the back door, picked up a thin piece of wood and tried to push out the back door key. He was having a little trouble and said, 'Had wire before.' I said, 'Where did you get the wire?' He said, 'Found it.' I said, 'What did you do with it afterwards?' He said, 'Threw it away.'
He then got another thin piece of wood and successfully pushed the key out of the lock and it fell onto the rubber‑type tiles inside the flat. He put his hand through the square hole at the bottom of the door, as described in the photographs, and endeavoured to retrieve the key. He couldn't reach it and had to get a piece of wood to assist him. He said, 'Fell straight down before.' He then opened the back door with the key.
…
I said, 'Where was the lady?' He led the way to the bedroom. He looked around and said, 'Different', and pointed to the two single beds that were then in the flat. When Jillian Brewer was murdered, there was one three‑quarter bed in the flat.
…
I said, 'What happened then?' He went to the head of one of the beds and once again with an imaginary hatchet in his hand he made two very quick blows to where the head of a person would have been had they been lying on one of the beds.
… I said, 'What then?' and he made this sweeping movement with his hands near the floor, grabbed the door handle in the flat and shut the door quickly with a quick shutting movement, grabbed himself in the bottom of the ribs or the stomach and laid his head on his hands.
I said, 'Did you jam the door on the dog's stomach?' He said, 'Yes'. I said, 'What happened to the dog?' He said, 'Dog quiet, think dead'. I said, 'Did you do anything else to the lady?' He shrugged. I said, 'Look, just tell the truth'. He shrugged again. I said, 'Did you hit her anywhere else?' and I laid on the bed (on one of the two beds) and I made a chopping movement with my hand between my knee and my neck. He said, 'Hit lady, big hit, in private - little hits on body'. He used the obscene expression for 'private'. I said, 'Did you do anything else to the lady?' He said, 'Played with lady's private'. He once again used the obscene expression.
I said: 'Did you try to have intercourse with the lady?' He said: 'Yes, had intercourse with lady', still using the obscene expression. I said: 'Did you get any blood on you?' He said: 'Blood on penis', and used the obscene expression.
I said: 'Did you get any blood on your clothes?' He said: 'Took trousers off.'
I said: 'Did you get any blood on your trousers when you put them back on again?' He said: 'Little blood'.
I said: 'What trousers did you have on?' He said: 'Old black jeans with zips'.
I said: 'Did you wash your trousers?' He said: 'Yes, in washing machine'.
I said: 'The lady was lying on one pillow - where was the other one?' He said: 'Threw pillow on floor'.
I said: 'Are you sure?' He said: 'Threw pillow on floor'.
I said: 'Did you do anything else with the pillow?', and I again laid on one of the beds, and I put the pillow - a pillow across my knees, thighs, waist, chest and face at different times. I then took the pillow off my face. Beamish put the pillow over my face and pulled my legs wide apart.
I said: 'Did you put the pillow over the lady's face and pull her legs wide apart?' He said, 'Yes'. I said, 'When?' He said, 'When I had intercourse with lady' and used the obscene expression. I said, 'After you had hit her with the axe?' He said, 'Yes', I said, 'Where were the bed clothes when you were doing this to the lady?' He said, 'Pull blankets off'. I touched a blanket on the bed and said, 'Is this what you pulled off?' He said, 'No,' and touched a sheet. I said, 'That is a sheet'. He said, 'Blanket'. Touching a sheet I said, 'Do you call this a blanket?' He said, 'Yes'. I said, 'What happened then?' He said, 'Stabbed lady with scissors' and made the stabbing motion to his stomach.
…
I said, 'When did you use the scissors?'
He said, 'After intercourse with lady'. I picked up a pair of scissors in the flat. I did not say anything to Beamish. I held them up in my hand. He indicated with his hands that the blades were longer. He came to me and indicated that the blades were longer and pointed to the grips. I said, 'Do you mean the blades were longer and the grips were different?' He said, 'Yes'.
…
I said: 'What did you do with the scissors after you stabbed the lady?'
He showed me where he had put them, and said: 'Put them there, and run out back door'.
… [The] spot [Beamish had indicated] was on the divider between the kitchen and the lounge room, and was the same place where I had found the scissors at the time of the murder in 1959.
I said: 'Did you do anything to the scissors before you put them there?' He shrugged. I said: 'Did you wipe them?' He said: 'Yes', and he wiped the blades of the scissors on the outside only on the sheet on one of the beds. I said: 'What happened to the pillow and the sheets before you left?' He said: 'Can't remember; threw pillow on floor'.
I said: 'Are you sure?' He said: 'Put pillow on lady; can't remember'.
That conversation actually came in a little earlier."
Leitch then returned to what had been said by Beamish about the axe. He said:
"I said: 'What happened to the axe?' He said: 'Threw it away. When do I go Court?'
We were then standing at the back door of the flat and I said: 'Where did you throw it?' He pointed to the inside of the fence around the flat and said, 'There'.
I said, 'Are you sure? Think'. He thought for a while and said, 'Over fence', and he made a motion like that - over fence. I said, 'What fence?' and he once again pointed to the fence at the back of the flat.
I said, 'But where over the fence?' and he went to the north fence and pointed to a spot between the fence and a shed on the adjoining property. This was the same place that Det Patterson had pointed the hatchet out to me, on the 21st of December, 1959 - the time of the murder.
… He said, 'Lady dead - When Court?' I said, 'We haven't finished yet'. I said, 'Where did you get the axe?'
He said, 'Off woodheap.' I said, 'Now, is that right?' He faced in the direction of 4 Renown Street [sic] and where the hatchet had been taken from originally, at the time of the murder, and said, 'Over two or three fences', but he made several motions with his hand and I said, 'Over three or four fences?'
…
And he said, 'Yes'.
… We were standing at the back of the flat - Flat 18 and he was facing in the direction of 4 Renown Avenue where the hatchet came from. I said, 'You show me'. He started to climb the fence in the direction of the flat, but Mrs Myatt was with us and we went round - out of the flats and around into the adjoining premises. We got to the rear of these premises and he again pointed in the direction of 4 Renown Street [sic] and indicated 'Over another fence'.
We then went again out of these premises and into the adjoining premises. We were getting closer to where the garage, or the hatchet was originally taken from, and I said, 'Where is the place now?' He pointed to the floor of a garage in these premises. I said, 'Is that right?' He then led the way out of the premises into Wilson Street and around to Renown Avenue. When he came to 4 Renown Avenue - the premises of Mr Watson who owned the hatchet - he pointed to a garage at the rear of these premises, led the way, went into the garage, pointed to the floor at the rear of the garage and said, 'There'. I said, 'Is that where you got the axe from?' He said, 'Yes'. I said, 'Was it hanging up or was it on the floor?' He pointed to the floor and said, 'On the floor'.
I said, 'What happened then?' He led the way around to the rear of the garage and pointed in the direction of Brookwood Flats and said, 'Climbed over fences'. We then went out of these premises along the driveway - that is at 4 Renown Avenue - and he pointed to where he had walked on the grass and not on the cement path.
… [T]hat was of his own volition. I said, 'Was this the way you came in?' He said, 'Yes'. I said, 'Why did you come to the garage?' He said, 'Looking for money'. I said, 'Did you tell anybody else that you had killed the lady?' He said, 'No'. We then returned to the office."
Mrs Myatt generally corroborated the evidence of Leitch, although she said that, when Beamish was first asked whether he had ever been at the flat before, he said, "Yes." He said that he had been there to see a girl named Anne. (Other evidence was led at the trial to the effect that, in February 1961, Beamish had been to Brookwood Flats ostensibly looking for a Ms Susanne Delaney at a time when he knew that she lived elsewhere.)

Mrs Myatt explained that, when she communicated with Beamish, she had to alter the phraseology of ordinary English to some extent. For example, when asked how she would convey the words, "I want to warn you that you are not obliged to say anything unless you wish to do so and if you do it may be used in evidence against you," she said that she communicated these words: "I want to warn you that you may or may not want to … tell the truth or not … if you do it may be against you," or, perhaps, "bad for you". She said that she knew that Beamish had a limited English vocabulary.
Mrs Myatt offered a slightly different version, than that given by Leitch, of what she had conveyed to Beamish immediately before his confession. She said that she conveyed these words: "We want truth, my boss wants truth, will you tell us the truth because we have a clever staff" (at which time Leitch pointed over to the police station) "and we want truth". She said that Beamish then dropped his head and said, "Yes, I did hit the lady" or "hurt the lady". Beamish was crying at that stage. She rejected the suggestion, made to her in the course of cross‑examination, that Leitch had put a clenched fist up to Beamish's face. She also denied that any answers had been suggested to Beamish.

The Written Confession on 8 April

The prosecution evidence disclosed that Beamish was again questioned by Leitch on the following morning. Mrs Myatt interpreted and Detective Deering was present. This time, Leitch wrote out a number of questions. He allowed Beamish to read them and answer them in his own handwriting. Beamish's answers generally accorded with those which he had given to Leitch's questioning on the previous day. The questions and answers read as follows:
"What is your name?
Darryl Beamish.
Yesterday you told us you had killed a lady at night on the 20th December 1959. We showed you a Flat at Brookwood Flats, Stirling Highway Cottesloe and you said you had killed a lady on a bed with a hatchet in that flat. Is that right?
Yes.
I want to warn you that you are not obliged to say anything unless you wish to do so, but if you do it may be used in evidence. Do you understand?
Yes I want to tell truth.
Did you kill the lady?
Yes.
Why did you kill the lady?
My head mix up.
How did you get into the flat?
I had wire and push key, drop on the floor inside. I put my hand through hole and got key open door.
Why did you go into lady's bedroom?
Sexy.
Did the lady have any clothes on and where was she?
On bed no cloths [sic].
Had you seen the lady from outside the flat before you got into the flat?
Yes. I saw lady at night. no cloths [sic].
When you were inside the flat, what did you do?
I went to lady bedroom and hit lady with axe.
What was the lady doing in the bedroom?
Asleep on bed. summer [sic].
Anyone else in bedroom?
No people one dog.
Did the dog bark?
Yes. I push dog door and wall. dog look like die [sic].
How many times did you hit the lady with the axe?
First two big hit on head one big lady's cunt.
Any other hits with axe?
More little hit with axe.
Did you hit lady with anything else?
Yes sizzors [sic].
How many times and where?
3 or 4 there or four in stomach.
What happened then?
I fucked with lady.
Did lady have blood all over her?
Yes.
Did you get blood on you?
No.
Why?
I put a banket [sic] over head of lady.
Did you get blood on your self [sic]?
Yes all around my cock.
Did it get on your pants?
Yes little blood.
Did you take your pants off to fuck lady?
Yes.
What did you do with scissors?
I wipe.
Then what?
I put sissors [sic] on the table. and I run away [sic].
What did you do with the axe?
I threw over fence.
Then what?
My scooter and home.
What time was this?
I never had o'clock.
Did you tell anyone?
No.
How do you know the date, that this happened?
Sunday night.
Where did you go last Xmas and the one before?
1960 to 61 Rockingham beach 1959 Corrigin.
Did this trouble with the lady come just before Corrigin?
Yes my Mother and I went to Corrigin.
Did you know the lady was dead and you had killed her with the axe?
Yes. Quick.
Where did you get the axe from?
Grage [sic]. over fences [sic].
When you were in the flat after doing all these things to the lady, did you put anything over the lady?
Pillow over face.
All writing It is truth [sic]."

Deering's Evidence

Deering confirmed Leitch's evidence in respect of the interviews at which Deering had been present. It is worth repeating what was said by Deering in one respect, being the pointing out, by Beamish, of the axe which had been used in the murder. His evidence‑in‑chief was as follows:
"Was there then some discussion about the hatchet or axe that you've mentioned?‑‑‑Leitch said, 'What did you do with the axe?' We were then standing near the rear doorway of the flat. Beamish said, 'Threw it away; when Court?' Leitch said, 'We haven't finished yet. Whereabouts did you throw the hatchet?' Beamish pointed to the inside of the fence surrounding the flat. Leitch said, 'Now, is that right - think?' Beamish then said, 'Over fence'. Leitch said, 'But whereabouts over the fence?' Beamish then took us to the side of the fence.
And do you know which fence that was?‑‑‑It would be the - like, out the front door to the left it would be the north fence, or the north‑west fence.
The north fence, did you say?‑‑‑Yes.
I think that is the north fence as demonstrated on the plan. I think you have seen the plan, have you?‑‑‑Yes, yes.
Is that the area at which you are now looking?‑‑‑Yes.
I wish you to take it, I'm sorry?‑‑‑He seemed to pinpoint it to a spot just over the fence and between a shed and the fence.
Yes?‑‑‑And Leitch said, 'Is that where you threw it?' Beamish said, 'Yes'.
Did the accused then say something?‑‑‑The accused, Beamish, said 'Lady dead, when Court'. Leitch said 'We haven't finished yet.' Leitch said, 'Where did you get the axe from?' Beamish said, 'Off woodheap'. Leitch said, 'Is that right; think?'
Beamish said, 'Over two or three fences' and he made a movement of his hand going over fences.
Do you recall how many?‑‑‑I thought it was three.
And then?‑‑‑Leitch said, 'Was it over three or four fences?' Beamish said, 'Yes'. He was then facing in the direction of the garage in Renown Street [sic] where the hatchet was taken from. Leitch said, 'You show me'. Beamish led the way into the adjoining premises and we walked into these premises, the yard, and he motioned over the fence again. We then walked into the next premises. We were then getting closer to where the hatchet was originally taken from.
Was there some conversation then?‑‑‑Leitch said, 'Where is the place?' Beamish pointed to a garage on the premises. Leitch said, 'Now, is that right?' He then led us out of the premises, back into Wilson Street. We walked along Wilson Street and into Renown Street [sic], and when we got to the front of No 4 Renown Street [sic] - the premises occupied by Mr Watson - - -
… So he led you to premises at No 4 Renown Street [sic] occupied by Mr Watson and ‑ ‑ ‑?‑‑‑Then he pointed up the driveway of the premises to a garage at the rear and led the way to the garage. He then pointed to the inside of the garage and said, 'There'. Leitch said, 'Is that where you got the axe from?' Beamish said, 'Yes'. Leitch said, 'Was it hanging up?' Beamish said, 'No, on the floor'. Leitch said, 'What did you do then?' He led the way to the back of the garage and then started climbing over the fence, and said: 'Climbed over fences'."

The Courtyard Writing

Evidence was also given by a Mr Raymond Toms. On 8 April 1961 he was a prisoner at the Central Police Station. He saw Beamish in the prison courtyard. The courtyard was made of bitumen. He said Beamish wrote on it with what appeared to him to be a piece of plaster. He wrote four separate lines. The first read "Cottesloe". The second read "where drunk". The third read "I killed lady". The fourth read "7 months". Toms did not know whether the writing was done in answer to questions from someone else. He did not notice the words "not me" alongside the writing.
Leitch said that he saw the words described by Toms at the Central Police Station on 10 April 1961 after being notified of their existence by a Detective Sergeant McKay. That afternoon, he asked Beamish about them. He did so by asking him questions written on a piece of paper. He asked Beamish whether or not he had written the words. Beamish responded by nodding his head and writing "yes". Beamish then wrote: "Not me killed lady Cottesloe". Leitch wrote, "Why have you changed your mind?" Beamish wrote, "Father said, say nothing." Leitch said, "Why did you write that on the floor?" Beamish responded by shrugging.

The 12 June Confession

Leitch interviewed Beamish again on 12 June 1961. This time he was accompanied by Detective Sergeant Balcombe. The Reverend Christopher Chetwynd of the Missions to Seamen acted as an interpreter, although Mrs Myatt was present. Dr Thompson, a former Inspector‑General of the Mental Health Services and the visiting psychiatrist to the Fremantle Prison, was also present. Leitch described what took place as follows:
"I said, 'I want to warn you that you're not obliged to say anything unless you wish to do so, but if you do it may be used in evidence'. I also showed him this warning in written form. He said, 'I want to tell the truth'. I said, 'Do you admit that two months ago you told me that you committed this murder? and that you were telling the truth?' He said, 'Yes'. I said, 'I will point out to you, paragraph by paragraph, what I wrote at the time and what you wrote in reply, and I want you to tell me after each paragraph if it is true'. I then pointed out with my finger showing him the document that has already been before the Court.
… I pointed out with my finger what I had written and what he had written in reply. After each paragraph he said it was true, and then I did the same with the next paragraph, continuing on throughout the document. At the conclusion of the document I pointed to his signature at the bottom of it and said:
'Is that your signature?' He said: 'Yes'.
I said: 'Is what you have written the truth?', and, 'Did you kill the lady at Cottesloe?'. He said: 'Yes'.
I said: 'You told me that you had run out the back door; is that right?'; he said: 'Yes'. I said: 'Could it have been the front door?'. He said: 'Yes, it could have been the front door'.
I said: 'Are you sure that it was your motor scooter that you rode to Brookwood Flats before you killed the lady?' He said: 'Yes'. I said: 'How could it have been your motor scooter - your motor scooter was burnt in September, 1959'. He said: 'It was Brian Jacobs' scooter'.
I said: 'Why did you go to the flat?' He said: 'Head mixed up'.
I said: 'Had you been there often?' He said: 'Yes'.
I said: 'What did you write on the floor at the Central Police Station, when you were there?' He said: 'I wrote - "I killed lady Cottesloe"'.
I said: 'When your parents saw you - after you had told us that you had killed the lady - did they tell you to say nothing more to the police?' He said: 'Yes; father said, Athol Gibson [Beamish's solicitor] say - "say nothing"'.
I said: 'Is it true that you did kill the lady?' He said: 'Yes'."
Leitch also said that he asked Beamish whether he had been at the flats often, to which Beamish answered "yes". Leitch then gave evidence of the following exchange:
"I said, 'Did you see the lady with no clothes on before you got into the flat?' He said, 'Yes'. I said, 'Did you masturbate yourself while you were looking at the lady?' He said, 'Yes.'"
Chetwynd generally confirmed this evidence. He said that Beamish answered most questions in the affirmative by nodding. He did not think that there was any doubt whatever that Beamish understood the questions. He said that Beamish became rather impatient and that his attitude was: "Well let's get on with this" after two or three preliminary questions had been asked.
Chetwynd acknowledged that there was some difficulty in interpreting for Beamish. When asked, in cross‑examination, whether he had found it difficult to put the question, "Do you admit that you told me two months ago that you committed this murder and that you were telling the truth?" he responded by saying: "… that sort of thing can be built up - I think I might have been able to put that over to him, but it takes a little time".
Dr Thompson also gave evidence of what took place on 12 June. He said that Beamish was very quiet and appeared quite composed during the interview. He also said that Beamish answered the questions "quite readily and without displaying … any great emotion - until … the end of the interview [when] he put his head down in his hands and appeared to have a little weep to himself".

Beamish's Evidence

Beamish gave evidence at the trial. He said that he had had nothing to do with the murder. He said that, when he was questioned about it on 7 April 1961, "Flo" (Mrs Myatt) told him that he was telling lies and pushed him. He had never heard about the murder before. When Leitch questioned him, he was "shaking me, my nose". He said that Mrs Myatt could not see that Leitch had his fist in his face. Leitch was also poking him with his fingers and made him cry. He had previously been to Brookwood Flats in order to visit a woman called Anne. This was in 1961. He said that the answers which he gave to the written questions put to him were suggested to him by Mrs Myatt. He had known Mrs Myatt for four years, since he had left school. She had previously helped him on a number of occasions.
He admitted writing words in the courtyard of the Central Police Station. They were written with a piece of soap in response to questions asked of him by a boy who was also in prison. When the boy asked him "what happened", he wrote, "I kill lady, not me". He said that the words "Cottesloe, drunk" were written by the boy (although, under cross‑examination, he said that he had himself written the word "Cottesloe"). He also said that he wrote the words "7 months" in response to being asked what sentence of imprisonment he had received. This was the aggregate term which he had received in respect of the assaults on the young girls.
When asked about the interview with Leitch (interpreted by Chetwynd) on 12 June 1961, he said that he did not say anything. He cried because he did not commit the murder.
Beamish was cross‑examined, without objection by his counsel, about a number of other offences which he had committed. He was asked about thefts perpetrated by him and also about the aggravated assaults on the little girls to which I have earlier referred.
As to the thefts, it was put to Beamish that he had committed nearly 60 of them (he had been convicted of only 24). It was also put to him that he had broken into a shop by pushing out the shop key belonging to a side door with a piece of wire and that he had been present when his friend and alleged co‑offender, Alan Elliott, had told police that he had done this (Elliott was not called as a witness). Beamish denied that he had done any such thing, and that Elliott had said that he had. He also said that he had committed only four thefts and that the detectives had told him about the other 20.
Beamish was also cross‑examined (again without objection) about his behaviour as a child. He was said to have damaged the property of others. He was even said to have chased fowls, caught them, broken their legs and wrung their necks (an allegation which he denied, as did his father, who also gave evidence).
The justification which was offered for this extraordinary, and highly prejudicial, cross‑examination was that Beamish had told the Court that Leitch had not been truthful in his evidence. This attack on Leitch's character was said to justify, under the then provisions of the Code, a similar (but very much more damaging) attack on Beamish's character. We should add that the attack on Beamish's character continued during the course of the prosecutor's address to the jury. The jury, being aware, as a result of the cross‑examination, of the aggravated sexual assaults which had been committed by Beamish on the little girls, were told by the prosecutor that Beamish was "sexually perverted" and that "the killer … [of Brewer] must surely have been sexually perverted". He went on to urge upon the jury a form of propensity reasoning, which would be most unlikely to be permitted in more modern times, as follows (transcript page 402):
"I say the killing itself indicates it's the work of a sexual pervert; it's a sadistic killing, such as you would - could only square up with the kind of person who is sexually perverted, and you might also say, the kind of person who is overborne with a sense of inadequacy - overwhelmed with the sense of his own disabilities. The feeling that he's got sexual urges with no knowledge of how to satisfy them."
It was also put to Beamish, in cross‑examination, that he had shown Leitch how he got into Brewer's flat. He denied this and said that it was Leitch who had pushed the key out of the back door.
Beamish also said that it was Leitch who had told him that the bed in Brewer's bedroom was different. He said that he had merely nodded his head when told this. He acknowledged that, when asked to do so, he had demonstrated two quick blows with his right arm at the head of the bed. He said that he did this only because Leitch told him to do so.
He was cross‑examined about Brewer's dog. The following exchange took place:
"MR WILSON [the Crown prosecutor]:   Did you then tell Leitch - dog barked? Leitch told me.
And did you do anything when Leitch told you that?‑‑‑Flo told me to bark.
Flo told you to bark, so you wrote like this?‑‑‑Yes.
Did you then grab the door handle and make a quick shutting motion with the door?‑‑‑Leitch told me.
And did you do it?‑‑‑Yes.
Did Leitch ask you what happened to the dog?
MRS McQUADE [the interpreter at the trial]:   Shut on the tummy - or stomach - or body.
He's pointing to the body. Shut on body.
MR WILSON:   Is that what you told Leitch when he asked you what happened to the dog?‑‑‑I didn't tell him - he told me. Leitch told Beamish.
MRS McQUADE:   Yes, Leitch told him.
MR WILSON:   Did you tell Leitch - 'think it died'?
MRS McQUADE:   Are you saying 'day' or 'die'?
MR WILSON:   Died.
MRS McQUADE:   Oh, I'm sorry. I understood you were saying 'day' ‑ ‑ ‑ I guess.
MR WILSON:   Well you said it?‑‑‑Yes."
Beamish denied that he had said that he had "Hit lady big hit in private". He said that Leitch had told him about this. He also said that Leitch had laid on the bed and put a pillow on parts of his body and that he (Beamish) had taken the pillow and put it on Leitch's face. Earlier, in the course of his evidence‑in‑chief, when asked about the pillow, the following exchange had taken place:
"WOLFF, CJ [the trial Judge]: All right. What he's putting, apparently, is that Leitch put the pillow in various positions on his body, and what did he say to that? That's what we want to find out?‑‑‑Pillow on head. Leitch was lying on the bed.
Leitch put the pillow on himself.
MR GIBSON [Beamish's counsel]: What did Leitch say after he had put the pillow on himself?‑‑‑Which? Where?
And what did you do?‑‑‑On the face.
Why did you do that?‑‑‑Guess."
Beamish was also cross‑examined about throwing away the axe. The following exchange took place:
"Did Leitch ask you where you had thrown the axe?‑‑‑Yes.
And what did you say?‑‑‑Near the flat, next door, next place.
Why did you say that?‑‑‑I guess.
Why did you guess?‑‑‑Leitch teased me.
Did you then take them to the fence and point over the fence to where you had thrown the hatchet - the axe?‑‑‑It next place.
Then Leitch told you to show him where you got the axe from, didn't he?‑‑‑Yes.
And you went like this pointing over fences?‑‑‑Leitch told me 'over' - I said 'no'.
Didn't Leitch then tell you to show him where you got the axe from?‑‑‑Yes.
And did you lead the way into the next lot?‑‑‑No.
Did you go into the house - the next yard?‑‑‑Yes.
Why did you go in there?‑‑‑I guess.
You led the way in then?‑‑‑Mr Leitch went first, I followed.
Well, what guessing did you have to do?‑‑‑Leitch asked me 'Where's the axe?' and pointed there.
Then you went out of that house and went into the next house, didn't you?‑‑‑No, only into one.
Only into one house - then on round into Watson's house?‑‑‑Yes.
And you led the way to Watson's garage, didn't you?‑‑‑No.
Who did?‑‑‑Two Detectives."

When cross‑examined about his written confession, he repeated that he had answered as he had been told to do by Mrs Myatt. He said that he did so because Leitch was watching him. He said that he had told Mrs Myatt that he had not killed Brewer.
When cross‑examined about the interview on 12 June 1961, he said that Chetwynd had been wrong when he said that Beamish had answered every question asked of him. He said that he had remained quiet. He had cried because Leitch teased him by pointing to the paper and saying, "You."
It is apparent from the transcript of Beamish's evidence at the trial that there were frequent difficulties in communication. Questions often had to be repeated in order to be sure that there had been no misunderstanding. Also, a check interpreter was present so as to audit the accuracy of the interpreting done by the court‑appointed interpreter, Mrs McQuade. She was required to correct Mrs McQuade on a few occasions.

Beamish's Parents

Beamish's parents, George William Beamish ("Beamish senior") and Frances Merle Beamish, gave evidence at the trial.
Beamish senior said that Beamish had done very poorly at school. He and his wife had struggled to further his education by attempting to make him understand more words and "simple sums, things like that". He had acted as an interpreter to Beamish when Beamish was charged with 24 stealing offences in October 1960. At the time, Beamish was asked about a "safe robbery" which had taken place in Leederville. Beamish admitted to the robbery but, when asked how he took the safe away, he did not know. It was suggested to him that he had used a trolley and, after this was described to him at great length, he agreed that that was what he could have done with the safe. He was never charged with that offence. Beamish senior said that Beamish had also been questioned about the theft of a fur coat. He told the police, through his father, that he had given the coat to a girl. When the girl was asked about it, she said that she had never seen Beamish before and had not had anything to do with a fur coat.
Beamish senior saw his son on 16 June 1961, the day upon which he was charged. When he arrived at the police station, he went over to his son who, he said, immediately jumped up out of his chair, faced him and Mrs Myatt (who was also there), and said, "I didn't do it, Dad; I didn't do it; they mixed me all up."
Each of Beamish's parents said, in the course of their evidence, that they had been to a "Masonic party" on the evening of Saturday, 19 December 1959. They returned home shortly after midnight on the morning of 20 December 1959. Beamish was not then home, but arrived within a quarter of an hour. He talked to his parents (or, according to Mrs Beamish, to his father) for a while and then went straight to bed. His mother next saw him at 7 am, when he was still in bed. His father next saw him at about 7.30 am. Mrs Beamish said that her room was quite close to that in which Beamish slept and that she could have heard him had he gone out again after arriving home at about 12.30 am.
Both parents were cross‑examined about what they had told Leitch in respect of their son's whereabouts on the night of the murder. Beamish senior remembered being questioned about this on 15 June 1961. His evidence, under cross‑examination, of what took place was as follows:
"Leitch and another detective came into my home that night. They were invited into our lounge. Mr Leitch then started to talk to me about Darryl's movements on that particular night. His manner was such as to get my blood warmed up a little bit and I remarked to him, could he remember where he was on that night and he told me he couldn't and then I said, 'Well, how would you expect me to remember such a thing so long ago' and then he whipped in the question, 'Would you sign a statement to the effect that you don't know where Darryl was on that night or what he was doing?' This acted like a cold douche of water on me and I immediately saw what he was trying to get and said I would not sign any such statement.
And Leitch didn't press it did he?
You said, 'No, I don't want to sign a statement' and that was the ‑ ‑ ‑?‑‑‑That was the end of it.
And I put it to you Mr Beamish that Leitch was courteous and respectful throughout this visit to your place on that night?‑‑‑I consider his bearing boorish on that evening."
Mrs Beamish recalled meeting with Leitch in mid‑April, when he asked her and her husband whether or not they could remember what Beamish had done on the night of the murder. She said that they could not remember and had tried to think back. After two or three weeks of trying to work it out, Beamish senior remembered the Masonic party. That focused their memory. However, when Leitch asked them about this on 15 June, they did not tell him what they had recalled "Because he was so aggressive most likely".

The First Appeal

The first appeal was heard by Jackson SPJ and Virtue and D'Arcy JJ: Beamish v The Queen [1962] WAR 85. The appeal raised four grounds.
The first ground challenged the trial Judge's directions with respect to, and touching upon, the onus of proof. While there was some doubt whether or not this was encompassed by ground 1, counsel for Beamish also contended that the trial Judge had failed adequately to instruct the jury as to what he called the inherent risk in convicting on a confession in the particular circumstances of the case. He stressed, in this respect, Beamish's limited understanding, the fact that his confessions were uncorroborated and that some of the facts within the confessions were shown to be false. None of the submissions made under this ground were accepted. All three Judges considered that the directions given by the trial Judge (Wolff CJ) in each of the respects complained of were adequate.
The second ground of appeal challenged the admission of the various confessions which had been made by Beamish upon the ground that they were not shown to have been free or voluntary. No form of promise or threat, or of physical coercion, was relied upon. Rather, counsel for Beamish submitted that what had been said to Beamish in the car in Hay Street, as translated by Mrs Myatt, operated as an inducement sufficient, in the circumstances, to render his admissions involuntary. Counsel for Beamish argued that, in determining the admissibility of the confessional material, the Court should take into account Beamish's background and standard of intelligence and education and the whole of the circumstances under which the interrogation took place. In the case of the first confession, the interrogation took place while Beamish was awaiting sentence on the four charges of aggravated assault to which I have earlier referred. His counsel suggested that he was subject to stresses which might induce him to speak when otherwise he would not have done so.
These submissions found no favour with any of the Judges.
Jackson SPJ, while acknowledging that Beamish's ability to communicate with others was "of a very limited character", considered that he had been properly warned and that the evidence demonstrated that each of his statements was free and voluntary.
Virtue J found himself unable to conclude that the warning conveyed by Mrs Myatt, or the gestures which accompanied it, should be regarded as amounting to an interference with Beamish's free choice to make a statement. He could find no evidence of any other interference with the exercise of Beamish's free choice as a result of pressure importing a threat or a promise. He said that, while the matters raised by Beamish's counsel were relevant and went to the weight to be attached to the admissions made by Beamish, they did not justify their rejection.
D'Arcy J could see no reason for rejecting any of the confessional evidence on any of the bases contended for.
The third ground challenged the admission of the statements made by Beamish without evidence first being taken on the voir dire.
Jackson SPJ (and seemingly Virtue J) regarded this ground as having been abandoned during the hearing of the appeal. D'Arcy J said that it had not been abandoned but that counsel for Beamish had announced that he did not intend to press it. It seems, in any event, that none of the Judges considered that there was any substance to the ground.
The fourth, and last, ground was that a proper exercise of the trial Judge's discretion required that all statements made by Beamish should be excluded from the evidence. The contention was that it was unfair to admit any of his statements given that each of them was made when he was in some form of custody or restraint and given, also, that it was difficult to communicate with him because of his disability.
Jackson SPJ found it "quite impossible" to accept this submission. He said that no such application had been made at the trial, the questions had been put to Beamish through a reliable interpreter and, the more he read the transcript, the more impressed he became "with the scrupulous care which was taken by Leitch in his dealings with" Beamish.
Virtue J could find no reason for exercising a judicial discretion to reject the first three confessions. However, he said, special considerations applied to that made on 12 June. He referred to submissions by Beamish's counsel to the effect that the situation in which it was made was one which was most unsettling to a person of Beamish's calibre. He was then being held in Fremantle Gaol, serving the sentence of imprisonment in respect of the four offences to which we have earlier referred. His counsel also submitted that the presence of such a large party of persons as had been present was calculated to overbear Beamish's possible reluctance to say anything further. Also, Beamish was asked leading questions which were said to have been such as to leave him naturally prone to answer in the affirmative. Finally, Leitch then knew that Beamish had by then been advised not to answer any questions. Virtue J recognised the force of these submissions but said that that force was greatly weakened by Beamish's failure to give evidence that his will was in any way overborne or that he was overawed or led to make a statement, when he was in reality unwilling to do so, as a result of anything which occurred during the interview.
D'Arcy J could see no basis upon which the Chief Justice should have exercised his discretion to exclude any of the evidence of the confessions.
We have said that an application for leave to appeal to the High Court against the decision of the Court of Criminal Appeal was dismissed on 11 December 1961.

The 1964 Appeal

We have said that it was Cooke's confession to the killing of Brewer which led to Beamish's first petition to the Attorney‑General, referred by him to the Court of Criminal Appeal. The reference was heard by Wolff CJ (notwithstanding that he had been the trial Judge: s 687(6) of the Code), Jackson SPJ and Virtue J in February and March 1964. Cooke was cross‑examined by the Crown prosecutor. The Court delivered judgment on 22 May 1964.

Cooke's Arrest

Cooke was arrested on 1 September 1963 in what were said by Wolff CJ to have been "dramatic circumstances". He described them as follows:
"On the 27th January, 1963, there had been a number of shootings in which several people were wounded or shot at by rifle: a woman named Reeves, a man named August, and another man named Weir; and within a short time on the same day a man named Walmsley and a young man named Sturkey were shot dead. On the 10th August, 1963, a young woman [Shirley McLeod] who was baby‑sitting in a house at Dalkeith was shot dead by a bullet fired from a rifle. On the 1st September, 1963, Cooke was seen late at night to go to a place in the bush at Alfred Cove where a rifle had been found secreted. He had a pair of ladies' white gloves on his hands and a pair of ladies' black briefs in his possession. He was arrested. The rifle was proved by ballistic evidence to be the one used to shoot McLeod. Cooke confessed to the murders of McLeod, Walmsley and Sturkey, as well as the shooting at August, Reeves and Weir. In the cases of Walmsley, Sturkey, August, Reeves and Weir, another rifle was used. Cooke had thrown it from the Narrows Bridge into the Swan River from which it was later recovered by the police on Cooke's showing them where he had thrown it. In all these cases there was also irrefutable ballistic evidence to sheet the crimes home."

His Confessions to Other Murders

Cooke had also confessed to the murders of two other women. The first, a woman named Berkman, was murdered at South Perth on 30 January 1959. She was stabbed to death. Cooke said that she had awakened when he entered her flat to burgle it. She put up a fight and so he killed her in order to silence her. The second was a young woman named Maddrill. She was murdered, by strangulation, on 16 February 1963. Cooke said that he had committed this murder. She too had been killed after she awakened when he went into her bedroom to steal. He dragged her dead body out onto a lawn at the rear of the burgled premises. Then, Cooke said, he committed a necrophilic act of intercourse. There was also evidence that, after intercourse, the neck of a whisky bottle had been thrust up her vagina, withdrawn and left in the crook of her left arm. The police accepted Cooke's confessions to both killings and the Court of Criminal Appeal was prepared to assume, for the purposes of the second appeal, that Cooke was responsible for them.

Cooke's Trial

In November 1963 Cooke was tried in respect of the murder of Sturkey. At his trial, he admitted killing both Sturkey and Walmsley, but pleaded that he did so while suffering from compulsive insanity. The jury did not accept this and found him guilty of wilful murder. He was sentenced to death on 27 November 1963.

Cooke's Confessions to the Killing of Anderson and Brewer

Cooke had first been questioned about the Brewer murder on 24 January 1960, some years before his arrest on 1 September 1963. He was then arrested on a charge of loitering. He denied that he was responsible for the murder.
Cooke confessed to the Berkman murder on 7 September 1963. Three days later, on 10 September 1963, he first confessed to the killing of Brewer. On that day, he also confessed to the killing of Rosemary Anderson, who had died after being driven into by a car on 9 February 1963. In May 1963 a man with whom Anderson had then been in a relationship, John Button, had been convicted of that killing.
On 12 September 1963 three detectives took Cooke to the place where Anderson had died. One of these was Detective Sergeant William Nielson, who provided an affidavit for the purposes of the 1964 appeal. He explained to Cooke that the known circumstances of the accident were inconsistent with Cooke's description of what had taken place. He said that Cooke responded as follows:
"Well, I thought I did it but now you have pointed out the positions to me I know now that I could not have been the person responsible. I remember an account of what took place in the papers and can remember the parties and their movements as accounted for in the papers, even the doctor's name she was taken to. You know when I read books sometimes I get so engrossed in the story that I believe that I'm the person taking part in it."
On 13 September 1963 Nielson questioned Cooke about the Brewer murder. Also present were Detective Sergeants Dunne, Moorman and Leitch. Cooke willingly answered a large number of questions about the murder. Nielson said that the following exchanges took place between him and Cooke:
"I said to Cooke: 'Detective Sergeant Leitch handled the Brewer murder inquiry and he would know all of the facts. To satisfy you further perhaps you could relate what you know and what you think you know about this murder.'
Cooke said: 'I had previously been to Mrs. Brewer's flat, next door to where the girl Brewer was killed. I stole £4 from Mrs. Brewer's flat and hid the key at the back of the flat, and I am frightened that I might have gone back and done the murder.'
I said: 'Have you read about this murder?'
Cooke said: 'Yes, I follow closely what all you blokes do. Sergeant Leitch interviewed me soon after that murder when I got pinched for loitering. I was frightened because I have been to Mrs. Brewer's flat and I had pinched a car that night, but I knew that I hadn't done the murder then.'
I said: 'Well, what makes you think you did it now?'
Cooke said: 'Since I have been arrested I've been thinking about all these murders and thought I might have done these other two as well, anyhow this is what I thought I did. I know I stole the car, I always got one on Saturday nights. I got this one from Nedlands and I drove around a bit and finally went to Cottesloe. I parked near the back of Lorento [sic] Convent, and I walked down to the flats.
The back door of both Mrs. Brewer's flat and the girl Jillian's flat were open. First I went into the mother's flat and had a look for money, but I didn't get any. I think that is what I did. I would have been looking for money for sure.'
I said: 'Was there anyone in the flat?'
Cooke said: 'I'm not sure. I looked for money in other rooms before I went into the bedroom. I might have shone my torch on the bed, I'm not sure.
Then I went out and into the next flat, this would be Jillian's flat, the back door was open, but I had to push it open further to get in. The milkman had been and there was a small bottle of milk or a carton or something there.'
I said: 'What time was this?'
Cooke said: 'It must have been pretty late, after the milkman, it was about a quarter to three.'
I said: 'What did you do then?'
Cooke said: 'I had a look for money in the flat.'
I said: 'What type of furniture was there in the flat?'
Cooke said: 'That period type, the dark old stuff I think: Then I saw the bedroom door and eased it open ever so quietly and she was on the bed. I closed the door again and went out and got the hatchet from where I had left it. I propped the back door open.'
I said: 'Then you had already stolen the hatchet. Where did you get it from?'
Cooke said: 'From a garage at the back of a house. I forget the name of the street, but could show it to you on a map. It was hanging on a nail and had a hole in the handle.'
I said: 'Where was it hanging?'
Cooke said: 'I'm not sure if it was on the back or the side wall. Anyway I quietly got back into the flat and crept into the bedroom again. She was asleep on the bed.'
I said: 'What sort of bed?'
Cooke said: 'A double bed.'
I said: 'How many pillows were there?'
Cooke said: 'She was lying on one with her head on one side, there could have been one alongside her head. Then I hit her with the hatchet.'
I said: 'Where?'
Cooke said: 'Just above the left eye.'
I said: 'Show me' and handed him a tea strainer to demonstrate with.
Cooke demonstrated by placing the tea strainer over my left eye.
I said: 'How did you use the hatchet?'
Cooke said: 'With the cutting edge striking her' and then demonstrated again. 'Then the hatchet broke, only cracked.'
I said: 'Did you use the hatchet in any other way than with the edge of the blade striking her.'
Cooke said: 'No.'
I said: 'How many times did you hit her on the head?'
Cooke said: 'Twice on the forehead' and demonstrated the blow again on Detective Sergeant Dunne's forehead, near the first blow. At the time Detective Sergeant Dunne was lying on a table for demonstration purposes.
I said: 'Did you strike her anywhere else?'
Cooke said: 'Yes, once across the throat and once in the private.' He demonstrated on Detective Sergeant Dunne.
I said: 'What about the sheets?'
Cooke said: 'I pulled that down to the foot, she was naked, then I got the scissors, they were on the sink.'
I said: 'What kind of sink?'
Cooke said: 'It was wood on the side.'
I said: 'How did you see all this?'
Cooke said: 'I used my torch.'
I said: 'Did you put any lights on?'
Cooke said: 'No, I would hardly have the lights on doing that.'
I said: 'What did you do with the scissors?'
Cooke said: 'I stabbed her a couple of times, once through the breast and once in the ribs and maybe up near the chest.'
I said: 'Did you stab her anywhere else?'
Cooke said: 'No.'
I said: 'Are you sure?'
Cooke said: 'Yes.'
I said: 'What happened to the scissors?'
Cooke said: 'I wiped them on a towel in the bathroom and put them back where I got them from. I only wiped the outside of the scissors.'
I said: 'Was the sheet up or down when you stabbed her?'
Cooke said: 'I think it was down.'
I said: 'How was the sheet when you left her?'
Cooke said: 'Down by her feet.'
I said: 'What about the pillows?'
Cooke said: 'She was lying on one, and I think there was another one alongside her. I don't remember another pillow.'
I said: 'What about the dog.'
Cooke said: 'It was on her bed when I hit her. It jumped down and got under the bed. It didn't bark after I hit her.'
I said: 'Are you sure?'
Cooke said: 'Yes, I have a way with dogs.'
I said: 'Did you hit the dog?'
Cooke said: 'I didn't touch it. Then I left the flat.'
I said: 'By what door?'
Cooke said: 'By the back door. I put the bottle of milk back in position and closed the door quietly behind me. I threw the hatchet over the back fence, then I went to the car and went home.'"

While it is true that the evidence of Victoria de Julia as to the correlation of the time between the barking of the dog and the delivery of the milk was not before the Court of Criminal Appeal in 1964, Ms de Julia was a defence witness. Consequently, if this evidence was not known to Beamish's then defence team, that was presumably a consequence of the fact that no inquiry was made of Ms de Julia in this respect. That being so, the evidence is not fresh. However, the evidence is new and we are prepared to assume that it was unknown to the defence at the time of the trial and during the 1964 appeal. It seems to us that, had the defence been aware of this evidence, it would have been led, given the importance, in 1964, of the timing of Brewer's murder. However, because Ms de Julia was available to (and was led by) the defence, it seems to us that there was no obligation on the Crown to disclose it.

The Back Door

Cooke said that the back door of Brewer's flat was unlocked on the night of the murder.
We have previously mentioned that exhibit 40, a handwritten note obtained from the police files, records that the police were told by Mrs Northey that Brewer's rear door was not always kept locked and that she had had to speak to her daughter about that. This information was never disclosed to Beamish or to his defence team at any time prior to or during the hearing of the 1964 appeal.
Once again, we do not consider that this can be regarded as fresh evidence. In an affidavit sworn on 18 December 1963, Mr Smith, who, as we have said, was Beamish's solicitor, recorded that he had spoken to Mrs Northey on the telephone on the previous day and that she had informed him of a number of matters there listed. While the issue of the locking, or otherwise, of Brewer's back door is not there mentioned, this is, quite plainly, a matter which could have, and should (given Cooke's statement), have been raised with Mrs Northey at the time. Given that Mrs Northey was available to the defence and that the issue was an obvious one, we are not persuaded that this evidence should have been disclosed by the Crown.

Mrs Northey's Statement

Police took a statement from Mrs Northey in the Australian Capital Territory on 20 January 1964 [this statement appears not to have been tendered in evidence]. That statement was not disclosed to Beamish or to his defence team at any time prior to, or during, the 1964 appeal. In the statement she confirmed that, in about October 1959, the front door key to her flat and some change had been stolen from her handbag in her dressing room. This, of course, supports the statement by Cooke that he stole this key and hid it behind the airconditioner outside the flat, where, as we have said, it was subsequently found. While it was put to Cooke, during the hearing of the appeal, that Northey's lock had been changed within three days of the key being stolen, no evidence was led to that effect (Northey then having still been in Canberra).
Northey's statement also confirmed that she had normally kept ginger ale, tonic water and a few bottles of wine in her flat and that her daughter normally kept an electric frypan on the drainage section of the sink in her flat. We have said that, in his statement, Cooke had said that, on one of the occasions upon which he was in Northey's flat, he had taken a bottle of ginger ale and had seen bottles of wine. We have also said that he said that he had seen an electric frypan on the draining section of the sink in Brewer's flat.
We have earlier mentioned that, in his statement, Cooke also said that, after attacking Brewer, he went back into her flat, took a bottle of lemonade from the fridge, opened it and drank it. He said that before leaving the flat he placed the bottle with some other empty bottles in the "washette" and that before putting it on the floor he replaced the cap on the bottle. While this is not in Northey's statement, the spreadsheet, exhibit 17, records that it had been confirmed by Northey and by Dinnie that Brewer did drink a quantity of lemonade and that she had small bottles of lemonade in her flat. The spreadsheet also records that the empty bottles were left in the "washette section".
We have also earlier mentioned that, in his affidavit sworn on 18 December 1963, Mr Smith deposed to his conversation with Northey on the prior day. In that affidavit he said that he was told by her that, preceding the murder, her flat was entered by a person or persons unknown to her on several occasions. He also said that she recalled that some money and her front door key had gone missing from a purse which she had left in her flat and that, following that incident, she changed the lock on her door. She also told him that, some months after the murder, the key was returned to her and she was told that it had been found behind an airconditioner. The affidavit also reveals that Northey told Smith that Brewer drank a lot of lemonade and invariably kept a stock of lemonade in her flat, that empty bottles were stored in the laundry section on the floor and on the windowsill and that, following the murder, she remembered seeing a quantity of empty bottles on the floor in the laundry section and that she had "a vague memory" of seeing among such bottles an empty bottle with the cap replaced. At the hearing of the 1964 appeal, the Crown conceded the accuracy of all that the affidavit revealed save for Smith's evidence of what he had been told with respect to the capped empty bottle. Because this last item of evidence was disputed, and amounted only to hearsay, it was struck out of Smith's affidavit. The spreadsheet reveals that Northey had been interviewed and did not confirm the accuracy of what had been said by Smith in this regard. It records that she was "of the opinion that such a bottle could have been there, but she has no knowledge of it".
It follows quite plainly from all of this that none of this evidence can be described as fresh. Because it was known to Beamish's defence team there was no requirement that the Crown should disclose it.

Mr and Mrs Summerhayes

In his statement, Cooke said that, on the night before that on which he stole Mrs Northey's key, he broke into a house on the corner of Stirling Highway and Wilson Street and there "stole a couple of pounds from a lady's handbag" and also the front door key. We have mentioned that he said that, in the handbag, was a "racing or trotting ladies pass". The police spreadsheet, exhibit 17, records that the owners of that house, Mr and Mrs Summerhayes, had been interviewed. They did not know that their house had been entered. However, they confirmed that their house had a pantry and that entrance could be gained through the pantry window (this having been the means of entry described by Cooke). The spreadsheet also records that, if Mrs Summerhayes had had some money missing from her purse, she would not have thought that it had been stolen. We have mentioned that Mrs Summerhayes said that it was possible that a trotting pass would have been in her handbag because, at the time, she was receiving trotting admission tickets from a friend. Also, Mrs Summerhayes had a recollection of her front door key having gone missing, but, as we have earlier said, she thought that this would have been in about June 1962 and not in 1959.
Once again, this evidence is not fresh. It could easily have been obtained by Beamish's legal team at the time of the 1964 appeal. So far as its non‑disclosure is concerned, apart from anything else, it seems to us to be a matter of peripheral significance, given Mrs Summerhayes' opinion as to the timing of the possible theft. It consequently seems to us that no disclosure was required.

O'Dea

We have said that Cooke's evidence, in 1964, was that there were two milkmen operating on the night in question and that Wolff CJ, in his judgment, said that one of these milkmen, "if he were there, is unaccounted for".
Senior counsel for Beamish contended before us that it was not known to Beamish or to his legal team at the time of the 1964 appeal that a second milkman had been operating in the area at the time of the murder. He also contended that if exhibit 44, Mr O'Dea's statement dated 14 January 1964, had been disclosed to the defence team, they would have led evidence accordingly. However, exhibit 45 reveals that, when the police obtained a statement from O'Dea, he told them that a firm of solicitors representing Beamish had been in touch with him by phone some three weeks previously. That being so, there was no obligation on the Crown to disclose the statement and the evidence has not been shown to be fresh.

Northcott

In the 1964 appeal Wolff CJ found that the night light in the passage of Brewer's flat had been on at the time of the murder and was still on when Dinnie returned to the flat on the following morning. This finding contradicted the evidence of Cooke that the light had been off and that he had used a torch.
We have said that exhibit 46, a statement obtained by the police from Northcott on 6 January 1964, records that it was usual, when Northcott passed the front of Brewer's flat, for him to see lights on in the flat (between 4 am and 5 am). However, on the night of the murder, Northcott said, the flat was in "complete darkness" and "there was no light on". A copy of Northcott's statement was not made available to the defence at any time prior to, or during, the 1964 appeal and nor were the contents of that statement otherwise disclosed by the Crown.
Northcott's evidence, while new, could not be described as fresh. As we have said, Beamish's defence team had access to him and, had they wished to do so, could have asked him about the passage light. While it seems that they did not do so (it is difficult to believe that they would not have adduced this evidence had they been aware of it), in the circumstances we do not consider that any disclosure by the Crown was necessary. Notwithstanding this, the evidence seems to us undoubtedly to be relevant and we shall return to it below.
We should add that ground 7 also raises the proposition that Beamish and his defence team were unaware of the fact that Northcott's utility had been parked in the driveway next to Brewer's flat at the time of his delivery of milk on the night of the murder. While this, too, seems not to have been known to the defence at the time of the 1964 appeal, the same comments as have been made in respect of the evidence as regards the passage light might be made in respect of this evidence.

Balmer

We have said that Cooke identified the driver of the bus which, he said, he had taken to Nedlands on the night of the murder. Wolff CJ, in his judgment, said that if it was true that Cooke recognised the bus driver on that occasion, "a liar such as Cooke could quite easily be speaking of some other occasion". In the course of his opening before us, senior counsel for Beamish said that, unknown to Beamish's defence team in 1964, the police had established that the bus driver, Balmer, had driven the route nominated by Cooke on that night at the time nominated by Cooke. This appears from the spreadsheet, exhibit 17.
As we have said, in his evidence before us Blight said that he had, for the purposes of the 1964 appeal, conducted his own investigation into those matters and that he then had the information disclosed by the spreadsheet. This evidence is consequently not fresh and nor did anything follow from the Crown's failure to disclose it.

Dinnie

We have earlier said that Cooke claimed to have overheard a woman say, "Excuse my back as I can't stand lying facing someone," on the first occasion upon which he was standing outside Brewer's flat on the night of the murder. We have also mentioned that Cooke said that, on the occasion of one of his prior visits to Brookwood Flats, he saw a number of people in Brewer's flat, one of these being "John Doscas - a person against whom … [he] had played hockey - … [Doscas] played for Old Moderians [sic] as goal keeper".
Each of these statements is said by ground 7(ix) to have been corroborated by statements obtained by police from Dinnie. While an affidavit from Mr Dinnie was disclosed by the Crown to the defence, it said nothing about Coleman‑Doscas and, in par 5, said only the following:
"[A]t no time following the … act of intercourse [with Brewer on the night of the murder] did … Brewer say 'Excuse my back as I can't stand lying facing someone' nor did she make any similar remark on this or any other occasion."
The police had obtained a statement from Dinnie on 31 December 1963 (exhibit 47) in which he said that he did not think that Brewer had ever made the remark attributed to her by Cooke, but went on to say that he "could have said words to this effect because … [he does] not like lying facing somebody". He added that he did not recall having said this. Also, in an addendum to that statement dated 28 January 1964, Dinnie said that, on the Saturday immediately following 11 October 1959, an engagement party had been held at Brewer's flat at which John Coleman‑Doscas had been present. Dinnie had also told the police that Brewer was lying on a double bed on the night of the murder. None of this is said to have been disclosed to, or known by, Beamish or his defence team at the time of the 1964 appeal.
This evidence is not fresh. Moreover, it was known to Beamish's defence team at the time of the 1964 appeal. We have previously mentioned that Mr Smith interviewed Mr Dinnie. We have also mentioned that exhibit 55, a letter from Beamish's solicitor to the Director of Public Prosecutions, attaches a statement obtained by Mr Smith from Dinnie on 11 December 1963. In it, Dinnie reveals that, on the Saturday following 11 October 1959, a number of people, including John Coleman‑Doscas attended an engagement party at Brewer's flat. We have also said that Dinnie then said that he did not remember Brewer saying the words attributed by Cooke to her and that, while he might himself have said those words, he did not remember doing so. Finally, the statement reveals that, at the time of the murder, there was a double bed in Brewer's bedroom which, Dinnie said, had been bought some two or three days before she was killed.

Ground 9 - The Gallows Confession

As to ground 9, Beamish contends that the fresh evidence of the confession made by Cooke to the Reverend George Jenkins, some 15 minutes prior to his execution on 26 October 1964, corroborates the evidence given by Cooke in the 1964 appeal. Self‑evidently, because that confession (referred to by counsel as "the gallows confession") was made some months after the 1964 appeal had been dismissed, evidence of that confession could not have been adduced at that appeal or, of course, at the trial.
The confession, to which we have earlier referred, has been recorded by the Reverend Jenkins (who, as we have also said, has since died) in a statement made by him on 12 November 1964. The statement, which is relatively brief, reads as follows:
"I am an Honorary Prison Chaplain attached to Fremantle Gaol.
I was acquainted with Eric Edgar Cooke when he was a young man.
Upon Cooke becoming an inmate of Fremantle Prison following upon his trial for the murder of one Sturkey I visited him regularly at the gaol.
Following his conviction for the murder of the said Sturkey on almost every occasion I visited him he made reference to the subject of the Brewer and Anderson killings and the fact that Beamish and Button were serving sentences in respect thereof.
Cooke repeatedly stated that he was the person responsible for these killings but I did not discuss any detail with him of the circumstances surrounding the killings.
At the time the date was fixed for the execution of Eric Edgar Cooke I was engaged in a Church Conference and I was out of contact with Cooke until Friday the 23rd October, 1964.
I visited him at 9‑30 a.m. on that day. Cooke discussed with me the fact that the date for his execution had been fixed and acknowledged the justice of the decision to hang him.
On this day he said he was concerned about the fact that Beamish and Button were still being held for crimes which he had committed.
Without any prompting from me he took the Bible from me and said 'I swear before God I did these two.'
The reference to 'these two' was to Misses Brewer and Anderson.
I was alone with Cooke on this occasion.
I called to see him again on Sunday the 25th October 1964 and finally I attended with the Rev. Ralph Thomas on the morning of the 26th October 1964.
Cooke's execution was to take place at 8 a.m. on that day.
Between 7‑45 a.m. and 7‑50 a.m. in the presence of the Rev. Ralph Thomas Cooke again took the Bible in his hand and said 'I swear before Almighty God that I killed Anderson and Brewer.'
Throughout the time I was with Cooke on the morning of the 26th October 1964 he was in a calm and controlled state of mind."
We will return to this below, when considering the grounds of appeal as a whole.

Ground 10 - Fresh Evidence Accepted in Button v The Queen (2002) 25 WAR 382

That leaves ground 10. By this ground, Beamish contends that, in 1964, the Court of Criminal Appeal grounded its rejection of Cooke's evidence in part upon findings adverse to his credibility in respect of his confession to the killing of Rosemary Anderson in 1963. We have said that John Button had been convicted of her manslaughter. Button's conviction was ultimately overturned by the Court of Criminal Appeal in 2002, after hearing fresh evidence which, in the opinion of that Court, when taken together with evidence earlier given, raised such a doubt about Button's guilt that the verdict should not be allowed to stand. The Court held that the evidence then before it gave rise to a significant possibility that the jury, acting reasonably, would have acquitted Button if that evidence had been before it. Consequently, Beamish contends that, to the extent to which the Court of Criminal Appeal's adverse findings in respect of Cooke's credibility depended upon its rejection of his confession to the killing of Button, it was mistaken.
We have mentioned that, in his judgment given in the 1964 appeal, Wolff CJ said that it beggared the imagination that, on two different occasions, Cooke had committed two separate killings to which two men had severally confessed their complicity, in one case (the Anderson killing) the person convicted of the killing (Button) having appeared on the scene seconds after it happened, if Cooke's version of events was true.
It seems to us that, to the extent to which the Court, in 1964, relied, in making a finding adverse to Cooke's credibility, upon what it found to be his patently false evidence in respect of the killing of Anderson, that finding can no longer be supported, having regard for what has more recently been said by the Court of Criminal Appeal in Button.

Summary of Findings in Respect of These Grounds

The upshot of these grounds is that the only evidence which we have found to be fresh is that relating to the gallows confession. We have also found that the evidence dealt with under ground 1, while not fresh, is relevant and would have been admissible had it been advanced at the trial. We have said that Northcott's evidence in respect of the passage light, while not fresh, is undoubtedly relevant. We should add that the evidence of Coleman‑Doscas, while not shown to be fresh, seems to us also to be relevant as it corroborates Cooke's evidence of ongoing interest in Brookwood Flats. Finally, we have found that, to the extent to which the Court, in 1964, relied upon what it took to be the patent falsity of Cooke's evidence as regards the killing of Anderson in making a finding adverse to Cooke's credibility, that finding can no longer be relied upon.

Approach Which the Court Must Now Take

As we understand the position in the light of the cases referred to at the outset of these reasons, the approach which we should now take is to consider, and pronounce upon, the whole case, applying legal principles appropriate to criminal appeals: Ratten at 514 and Mickelberg (1989) at 311 ‑ 312.

So far as the fresh evidence is concerned, our task is to consider whether that evidence, taken together with other fresh evidence adduced in the course of the 1964 appeal and all of the admissible evidence, including that given at the trial, establishes that there is a significant possibility that a jury, acting reasonably, would have acquitted Beamish. If so, there will have been a substantial miscarriage of justice. Of course, the fresh evidence must be relevant, cogent and credible (in the sense that a reasonable jury could accept it as true even if we should not consider it likely that a reasonable jury would believe it).
It also seems to us that, in deciding whether the fresh evidence is relevant, cogent and credible, we should look at that evidence in the light of all of the admissible evidence, including that adduced at the trial, in the 1964 appeal and in this appeal, regardless (in the case of evidence led in the last‑mentioned two appeals) of whether or not the evidence is properly characterised as fresh or new. In the course of making that assessment we should have regard to findings (including findings of credibility) made at previous hearings but, in the end, the assessment must be our own, bearing in mind, as we have said, that in this context the relevant finding of credibility is one to the effect that a reasonable jury could accept the evidence as true.
Because the fresh evidence in this appeal takes the form of a confession, by Cooke, to the murder of Brewer, our task is that of considering the relevance, cogency and credibility (in the sense described) of that confession. Because it was one of a number of confessions by Cooke, it cannot be considered in isolation. Rather, it must be considered together with the other confessions made by him and taking into account the whole of the admissible evidence, including that now available which was not previously adduced. As we have said, in considering that issue we should have regard to, and pay due respect to, findings previously made as regards the cogency and credibility of the prior confessional evidence (that evidence plainly being relevant), but the task is our own and it must be carried out in the light of all of the admissible evidence now available.
Another consequence of the fact that the fresh evidence takes the form of confessional evidence is that it seems inevitably to follow that, if, taking into account all of the admissible evidence (including that which is merely new, and not fresh), we find it to be cogent and credible (once again, in the sense that a reasonable jury could accept it as true), its unavailability at the trial must have resulted in a substantial miscarriage of justice. There will, in the event of such a finding, necessarily be a significant possibility, if that confession had been available at the trial, that a jury, acting reasonably, would have acquitted Beamish.

Is the Gallows Confession Cogent and Credible?

That brings us to the question whether the gallows confession is cogent and credible (if it is, it is obviously relevant).
We should say, firstly, that there is no reason (none was advanced on behalf of the respondent) to doubt the reliability of the Reverend Jenkins' signed statement. By this we mean that there is no reason to doubt that he has accurately described his own conduct and observations and that he has correctly recorded what was, from time to time, said to him by Cooke and the occasions upon which it was said.
Next, there are indications which support Cooke's confession.
The first is that the evidence establishes, beyond any question, that Cooke was associated with Brookwood Flats. As has been seen, the evidence establishes that in about October 1959 Cooke burgled Northey's flat, stealing her front door key and money, and that he secreted the key behind the airconditioning unit with a view to returning on another occasion. It is also clear enough that Cooke was outside Brewer's flat, looking into it, on the night of her engagement party. Finally, (albeit, as we have said, less significantly) the evidence establishes that Cooke stole a car from a garage at Brookwood Flats on 27 June 1959.
Next, there is a good deal in the evidence to suggest that Cooke was in the vicinity of Brookwood Flats on the night of the murder.
First, the police evidence in respect of Mr Balmer, the bus driver, supports Cooke's evidence that he caught the bus that he says he caught on the night of the murder. While that, of itself, is not determinative, it does provide some independent corroboration of Cooke's claimed movements on the night.
Next, it is plain that Cooke stole Mr Leader's car, as he says he did, on the night of the murder. While this does not place him at the scene of the murder, it does, once again, provide some independent corroboration of his claimed movements on that night.
More importantly, Cooke's observations of two milkmen, on the night of the murder, is significant, more especially given that one of them had, on that night only, changed the ordinary time of his delivery from between 4 and 5 am to between 2 and 2.15 am. Also, we have mentioned that, although Dinnie said that the hall light was burning when he left, Cooke said that Brewer's flat was in darkness when he arrived there for the second time on the night of the murder. We have said that his evidence in this respect is corroborated by one of the milkmen, Northcott.
Finally, it is noteworthy that Cooke claims to have heard Brewer say that she did not like facing someone when sleeping. While Dinnie has said that Brewer did not say this, he also said that this is an attribute of his and that, while he does not recollect having said so on the night of the murder, he might have said something along these lines. Given the lapse of time between the date of the murder and the date of his confession (some four years), it would hardly be surprising for Cooke to mistake which one of the two people had said these words. Indeed, the mere fact that Cooke claims to have seen, or heard, two people have sexual intercourse in Brewer's flat on the night of the murder is, of itself, significant, given Dinnie's evidence that this happened.
Next, there is evidence which goes some way towards establishing that Cooke had, at some time, been inside Brewer's flat.
First, Cooke described having seen period furniture in Brewer's lounge room. While this was not correct, there was a type of period furniture in Brewer's bedroom.
More importantly, Cooke's recollection that he saw an electric frypan on the draining section of the sink in Brewer's flat is striking, given Northey's confirmation that this was where Brewer normally kept her frypan. The fact that it was not in that precise position in the police photograph which was taken of that part of the flat is of little significance given that it seems plain that the crime scene was not preserved and that items were moved.
It is also significant that Cooke claimed to have drunk a bottle of lemonade after attacking Brewer, given the independent evidence that Brewer drank lemonade and that she kept small bottles of it in her flat. Equally significant is Cooke's evidence that he left the empty bottle with other empty bottles in the "washette", given the police evidence, in exhibit 17, that empty bottles were left in the "washette section" of Brewer's flat.
Also significant is Cooke's evidence of the milk bottle placed just inside the flap of the rear door, given the independent evidence that this is where the milk was delivered on that night (albeit also on other nights).
Cooke's evidence that there was a double bed in Brewer's bedroom might also be thought to be of some significance (albeit this is a matter which might relatively easily have been guessed at or discovered through publicity attending the murder), having regard for the evidence that the double bed had been acquired only a few days prior to the murder.
Finally, given that Cooke claimed to have entered the flat through an unlocked rear door, the evidence, in exhibit 40, that Northey had told the police that Brewer's rear door was not always kept locked and that she had had to speak to her daughter about that might be regarded as significant.
Next, the timing of the murder is important.
Dinnie left the flat at almost exactly midnight. Beamish claims to have seen Brewer standing naked in the bedroom not long before he killed her. It seems unlikely that this would have been long after midnight. Cooke puts the timing of the murder a good deal later. He is supported, in this, by the evidence of Victoria de Julia, in exhibit 39, to the effect that she heard Brewer's dog barking a few minutes before her own milk was delivered. As we have said, this would have been shortly after the milk was delivered to Brookwood Flats. While her mother put the time of the barking somewhat earlier (we have said that she put it at about 1 am), Victoria de Julia's evidence seems, on the face of it, to be more reliable, given that she actually heard the delivery of milk to her and her mother's home at about the same time as the barking of the dog.
Next, there is, of course, the fact that Cooke was a serial murderer and brutal criminal. A crime of the kind which he confessed to was nothing out of the ordinary for him. As we have said, he had assaulted many young women in the course of his burglaries (including MacLeod, Cooke, Fleury, Whitsed and Tonks) and he had murdered two women, Berkman and Maddrill, in the course of burglaries. He had shown a propensity to commit random killings even when no burglary was involved. He had previously stolen, seemingly for no good reason, an item later used by him in an attack. We have mentioned that the towelling which was wrapped around Mrs Whitsed's neck had earlier been stolen by Cooke from a clothesline, seemingly only because he had thought that it might come in handy.
Cooke's victims were primarily young women. Moreover, there was a sexual element to at least two of those crimes, being the assault on Whitsed and the murder of Maddrill. This may have some bearing, in the mind of a reasonable jury, given the evidence of the axe blow struck in Brewer's pubic area. Also, it is significant that it was a trademark of all of Cooke's offending that he left no trace of his presence. We have earlier said that this similar fact evidence would have been admissible had it been available at Beamish's trial. As will be apparent, we differ, in that regard, from the approach taken by Wolff CJ in the 1964 appeal, his Honour having concluded that, because, in his opinion, Cooke's confession was fabricated, the similar fact evidence could not logically have any bearing.
Finally, it seems to us that Cooke had no good reason for lying in the course of making the gallows confession. Of course, it is true that the Court, in 1964, having had the considerable advantage of seeing and hearing Cooke give evidence, formed a very poor view of his general credibility. However, this appears to have been based, in some part at least, upon the conclusion that (as Wolff CJ put it) Cooke thought that the more confusion he created, the longer would be his chances of clinging to life. Also, the Court then formed the opinion that Cooke was still trying to win support for his theory that he was the victim of compulsive insanity. While all of that may have been so at the time of Cooke's earlier confessions, and at the time at which he gave evidence in 1964, these considerations seem to us to be substantially weakened at the time of the gallows confession. Prior to making that confession on 26 October 1964, Cooke had appreciated that his execution was inevitable and had acknowledged to Jenkins what he saw as the justice of the decision to hang him. Indeed, in the course of his confession made three days earlier, on Friday, 23 October 1964, Jenkins was alone with Cooke when he made a similar confession, in the course of which, without any prompting from Jenkins, he took the Bible and swore that he had killed each of Brewer and Anderson. He must, on each of those occasions, have known that, even if his confession was to be repeated by Jenkins, it would not be believed, a similar confession having been made by him on oath in 1964 and having been disbelieved by the Court of Criminal Appeal.
Of course, in considering the cogency and credibility of Cooke's confession to the murder of Brewer, it is necessary to take into account, as the Court did in 1964, the very powerful case against Beamish, given the latter's detailed confessions to the same crime, made in the presence of a number of people, including persons who were independent of the police (although there was no other evidence linking him directly with the crime). However, there were some unsatisfactory aspects of those confessions which, in the absence of any credible confession from Cooke, might have been given little weight by the jury (as they were by the Court of Criminal Appeal in 1964), but which, had the jury had the gallows confession available to it, might have been seen in a different light.
So, for example, Beamish was less than accurate in his description of where he hit Brewer with the axe. He identified two marks on the top of Brewer's head and, as we have mentioned, said nothing of the very significant blow or blows to Brewer's throat.
Beamish also seemed to have had no clear recollection of what he had done with Brewer's pillow, having put it in various places when asked by Leitch to demonstrate what he had done with it. He also claimed to have had sexual intercourse with Brewer (and to have got blood on his penis) when the forensic evidence established that this could not have taken place, although, of course, he had claimed to have had sexual intercourse with the small girls against whom he had offended when this, too, had not happened.
Also, we have mentioned that Beamish said that his sexual interference with Brewer took place after the stabbing with the scissors and that the autopsy indicated that the stabbing would have taken place some time after the axe blows and, probably, after Brewer had died. While, as we have mentioned, Wolff CJ said that a failure to fix, with accuracy, the order of the axe cuts or the scissor stabs in relation to the sexual interference, and the failure to mention the cut across the throat, were not surprising in the case of "a fiend of this type", this, of course, assumes that Beamish was the fiend who had committed the murder.
Beamish's evidence in respect of Brewer's dog is also significant. We have mentioned that he said that he threw the dog against the wall and jammed the bedroom door on its stomach and that he believed that the dog was dead. It is surprising, if these things had been done to the dog, that it should have shown no sign of any injury on the following morning.
We have also previously referred to the inconsistencies in Beamish's evidence as regards the place from which he obtained the hatchet and the place at which he disposed of it. As has been seen, it took some prompting before Beamish was able accurately to identify each of these places. Moreover, he persisted in his evidence that he had obtained the hatchet from a wood heap on the floor of the garage when its owner, Mr Watson, said that he had last seen the axe on its hook on the western wall of his garage.
Next, we have mentioned that Beamish at first claimed to have run out of the back door of Brewer's flat (which, as we have said, was subsequently found to be locked), although, when asked whether he could have run out of the front door, he acknowledged this possibility.
Finally, in this respect, a reasonable jury might form the opinion that Beamish had a predisposition to admit to crimes which he had not committed and, given a credible alternative suspect to Brewer's murder, might place more weight on this predisposition than did the jury at his trial. We have said that he was charged with less stealing offences than those to which he admitted and that he had admitted to a "safe robbery" when he was unable to explain how he had been able to take the safe away. Even more importantly, as we have said, he admitted to the theft of a fur coat when the girl to whom he claimed to have given it said that she had never seen him before and had had nothing to do with any fur coat. We should add that, just as it is possible that Cooke might have obtained details of the murder from the considerable publicity which it received, so, too, is it possible that Beamish obtained details in that way.
Beamish's poor communication skills might also be thought to be a matter of some significance. Mrs Myatt said that he had a limited English vocabulary and it is obvious, from her evidence and from that of Chetwynd, that each experienced difficulties in communicating some concepts to him. We have said that this appears from an examination of the trial transcript and that difficulties of this kind were acknowledged, in 1964, by Jackson SPJ.
The evidence of Beamish's parents might also have been given more significance by a reasonably jury, if made aware of the fact that Cooke had confessed to the same crime. Even if it be assumed that Beamish had left his home after arriving there at about 12.30 am, this, on the evidence of his parents, could not have happened until about 1 am. We have said that Beamish claimed to have seen Brewer standing naked in her bedroom. While this is possible, it seems unlikely, as we have also said, that she would have been still awake, and standing, at or after 1 am, given that Dinnie had left an hour earlier. While there are some difficulties with the evidence of Mr and Mrs Beamish in this respect, a reading of the transcript does not indicate that these difficulties are so great as to render their evidence incapable of belief.
We reiterate that the case against Beamish was very strong. We agree with much of what was said by the 1964 Court in that regard. We also accept that many of the difficulties in Cooke's evidence which were pointed to by the 1964 Court are present (bearing in mind, however, that that Court did not have available to it the gallows confession and, as we have pointed out, was influenced by some considerations which have since been shown to have been mistaken). However, it seems to us that when regard is had to the fresh evidence of the Reverend Jenkins, supported by the other matters to which we have referred, it cannot be said (even allowing for the poor view of Cooke's credibility formed by the 1964 Court) that Cooke's gallows confession is so incredible that a reasonable jury could not accept it as true. Rather, it seems to us that Cooke's confession is capable of giving rise to a reasonable doubt in the mind of the jury and that, when that confession is considered in combination with all of the other evidence, particularly that to which we have referred under this heading, there is a significant possibility that a jury, acting reasonably, would have acquitted Beamish.

Conclusion

Once that is accepted, it inevitably follows that there has been a substantial miscarriage of justice.
We would accordingly allow the appeal and set aside the conviction. Given that Beamish has already served the sentence of imprisonment imposed upon him, there can be no question of any retrial.