Button v The Queen - [2002] WASCA 35

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: BUTTON -v- THE QUEEN [2002] WASCA 35

CORAM: MALCOLM CJ
WALLWORK J
OWEN J

HEARD: 28-31 MAY 2001

DELIVERED : 25 FEBRUARY 2002

FILE NO/S: CCA 122 of 2000

BETWEEN: JOHN BUTTON
Appellant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law - Appeal and new trial - Inquiry after conviction - Appeal by reference from Attorney-General of petition by appellant - Task and approach of Court - Applicable test: whether there was a significant possibility that in the light of the admissible evidence now available (including evidence given at the trial) a jury, acting reasonably, would acquit the appellant, giving rise to a miscarriage of justice

Evidence - Fresh evidence - New evidence - Principles governing reception

Evidence - Fresh or new evidence of confessions of a third party deceased to the commission of offence - Evidence previously given personally on appellant's application for an extension of time - Evidence then rejected as "worthless" - Whether additional, new or fresh evidence of confessions admissible as an exception to the rule against hearsay or otherwise

Evidence - Fresh expert evidence based on knowledge and experience not available at the time of the trial or previous application for an extension of time for leave to appeal - Evidence tending to exclude involvement of appellant's vehicle and confirming possibility of involvement of vehicle driven by third party

Evidence - New evidence that injuries sustained by victim not consistent with having been caused by vehicle driven in manner described by appellant in his confession

Evidence - Fresh or new similar fact evidence of incidents in which other women had been run down at night in strikingly similar circumstances coupled with confessions by third party corroborated by the evidence of victims

Legislation:

Evidence Act 1995 (Cth), s 65

Sentencing Act 1995 (WA), s 140(1)(a), s 140(2)

Result:

Appeal allowed; conviction quashed; no order for a re-trial

Category: A

Representation:

Counsel:

Appellant: Mr T F Percy QC, Mr J A Davies & Mr W J Chesnutt
Respondent: Mr S E Stone & Ms A L Forrester

Solicitors:

Appellant: Davies & Co
Respondent: State Director of Public Prosecutions

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

B v The Queen (1991) 175 CLR 599
Bannon v The Queen (1995) 185 CLR 1
Beamish v The Queen (No 2), unreported; CCA SCt of WA; Library No 20 of 1964; 22 May 1964
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, unreported; CCA SCt of WA; 22 May 1964
Caratti v The Queen [2000] WASCA 279
Chambers v Mississippi (1973) 410 US 284
Cheney v R (1991) 99 ALR 360
Cheney v The Queen (1991) 28 FCR 103
Connell v The Queen (No 6) (1994) 12 WAR 133
Craig v The King (1933) 49 CLR 429
Demeter v The Queen [1978] 1 SCR 538
Donnelly v United States (1913) 228 US 243
Duff v The Queen (1979) 28 ALR 663
Gallagher v The Queen (1986) 160 CLR 392
In re Van Beelen (1974) 9 SASR 163
Knight v Jones; Ex parte Jones [1981] Qd R 98
Lobban v The Queen [1995] 1 WLR 877
Lowery and King (No 3) (1972) VR 939
Lowery v Reg [1974] AC 85 at 102; [1973] 3 All ER 662
McIlkenny v Chief Constable of West Midlands Police Force [1980] 2 All ER 227
McIlkenny v The Queen (1991) 93 Cr App R 287
Mickelberg v The Queen, unreported; CCA SCt of WA; Library No 990056; 12 February 1999
Nolan v The Queen, unreported; CCA SCt of WA; Library No 970260; 22 May 1997
Pfennig v The Queen (1995) 182 CLR 461
Pollitt v The Queen (1992) 174 CLR 558
Pownall v Conlon Management Pty Ltd (1995) 12 WAR 370
R v Beckford; R v Daley [1991] Crim LR 833
R v Benz (1989) 168 CLR 110
R v Chahley 1992 72 CCC (3d) 193
R v Finta [1994] 1 SCR 701
R v Harmer (1985) 28 A Crim R 35
R v Jenkins [1970] TasSR 13
R v Khan [1992] 2 SCR 531
R v O'Brien [1978] 1 SCR 591
R v Turner [1975] 1 QB 834
Ratten v The Queen (1974) 131 CLR 510
Sussex Peerage Case (1844) 11 Cl & Fin 85; 9 ER 1034
The Queen v Golightly, unreported; SCt of WA; Library No 970040; 14 February 1997
Vocisano v Vocisano (1974) 130 CLR
Walton v The Queen (1989) 166 CLR 283
Ward v H S Pitt & Co; Lloyd v Powell Duffryn Steam Coal Co [1913] 2 KB 130
Zullo v R [1993] 2 Qd R 572

Case(s) also cited:

Nil

INDEX

The reference of "the whole case" 6

Grounds of appeal 9

New or fresh evidence 13

Relevant facts and previous applications 16

Ground 2(b): Fresh forensic evidence 23

Evidence of Stephen Condren  29
Evidence of William Russell Haight  36
Evidence of Dr Neil Alistair Turner  88

Ground 2(f), (h) and (j): Confessions by Eric Edgar Cooke 89

Grounds 1 and 2(a): Fresh evidence of hit and run victims 113

Ground 2(d): Fresh evidence of John Barry Hansen 134

Ground 2(e): Fresh evidence of Douglas Wilkie 137

Ground 2(i): Cooke's other assault/home invasion victims 139

Ground 2(j): Letter by Mr Cooke to his solicitor 139

Ground 2(k): Entries in Prison Occurrence Book 141

Conclusion 141

MALCOLM CJ:

The reference of "the whole case"

This is an appeal which comes before the Court by way of a reference dated 31 May 2000 from the then Attorney General, the Hon Peter Foss QC MLC, pursuant to s 140(1)(a) of the Sentencing Act 1995 (WA). Section 140 of that Act provides that:
"(1)A petition for the exercise of the Royal Prerogative of Mercy in relation to an offender convicted on indictment, or to the sentence imposed on such an offender, may be referred by the Attorney General to the Court of Criminal Appeal either -
(a)for the whole case to be heard and determined as if it were an appeal by the offender against the conviction or against the sentence (as the case may be); or
(b)for an opinion on any specific matter relevant to determining the petition.
(2)The Court of Criminal Appeal must give effect to the referral."
As is apparent from the provisions of s 140 the case is to be heard and determined as if it were an appeal against conviction. This brings into play all of the provisions of the Criminal Code which are relevant to the hearing and determination of appeals against conviction.
In Mickelberg v The Queen, unreported; CCA SCt of WA; Library No 990056; 12 February 1999 at 5 - 7 Malcolm CJ, Steytler and Wheeler JJ dealt with the approach to a reference of "the whole case" under s 140(1) of the Sentencing Act as follows:
"In Ratten v The Queen (1974) 131 CLR 510 Barwick CJ (with whom McTiernan, Stephen and Jacobs JJ agreed) at 514 commented as follows in regard to a reference of 'the whole case' by the Attorney General of Victoria:
'As the Full Court was required to treat the reference to it under s584 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 v The Queen (1989) 167 CLR 259 it was held by Mason CJ, Brennan, Toohey and Gaudron JJ that, subject to an issue being properly excluded as frivolous or vexatious, when a case is referred under s21(a) of the Criminal Code, it is the duty of the Court of Criminal Appeal to pronounce upon the whole case as presented. Toohey and Gaudron JJ at 311-312 (with whom Mason CJ and Brennan J agreed) described the function of the Court of Criminal Appeal on a reference of 'the whole case' by the Attorney General as follows:
'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 514 per Barwick CJ. See also R v Gunn [No 1] (1942) 43 SR (NSW) 23 at 25 and Allen, Allen & Winter (1910) 5 Crim App R 225 at 226.
It has been held that, where the whole case is referred, the Court may consider matters not relied on in the petition (R v Gunn [No 2] (1942) 43 SR (NSW) 27 at 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 292-293. And in R v Gunn [No 2] (1942) 43 SR (NSW) at 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 already been heard and disposed of, unless some new matter has come to light which makes a re-consideration of the ground necessary or desirable."
The words of s21(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 the Court to control its own proceedings. That power will authorise the exclusion of issues which are frivolous or vexatious: see Jackson v Stirling Industries Ltd (1987) 162 CLR 612; Tringali v Stewartson Stubbs and 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.'
In Mickelberg v The Queen, unreported; CCA SCt of WA; Library No 970749; 13 March 1998 Malcolm CJ (with whom Steytler and Wheeler JJ agreed) said that in this State the approach to be adopted on a reference of the whole case by the Attorney General is the same as that described in Ratten v The Queen. The learned Chief Justice observed:
'The words of s21(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'."
This appeal is to be determined in accordance with those principles.
The appellant was charged on an indictment dated 2 April 1963 that on 10 February 1963 he wilfully murdered one Rosemary Margaret Anderson ("Ms Anderson"). After a trial on 29 April - 4 May 1963 the appellant was convicted of the offence of manslaughter and sentenced to imprisonment for 10 years. An application to the Court of Criminal Appeal for an extension of time within which to appeal against his conviction was heard on 27 February and 7 - 9 April 1964 by Wolff CJ, Jackson SPJ and Virtue J and dismissed on 22 May 1964. An application for special leave to appeal to the High Court of Australia was refused on 14 September 1964.
The appellant's application for an extension of time within which to appeal in 1964 was based on alleged confessions by Eric Edgar Cooke to police in which he said that he was the driver of a car which struck Ms Anderson and killed her on the night of 9 February 1963.

Grounds of appeal

The present appeal to this Court is on five grounds. Ground 1 is as follows:
"The verdict of the jury in respect of the conviction was unsafe and unsatisfactory having regard to fresh evidence that has emerged since the hearing of the Trial, which evidence was not known, disclosed or available at the time of the Trial, the Original Appeal or the Special Leave Application."
Paragraph 2 of the grounds of appeal contains particulars of the fresh evidence sought to be relied upon to which I will refer later in these reasons. Suffice it to say that the fresh evidence relied upon falls into the following categories:
(a)Fresh evidence relating to seven alleged hit and run victims of one Eric Edgar Cooke who was executed on 26 October 1964.
(b)Fresh forensic evidence relating to the damage sustained by the appellant's vehicle, which is said to corroborate the evidence of the appellant at the trial and the testimony of Cooke at the original appeal, to the effect that the damage sustained by the appellant's vehicle was inconsistent with having struck Ms Anderson and having struck a pedestrian at all.
(c)Fresh evidence of Kathleen James, by which she has changed her testimony, in the form of an affidavit in the original appeal, concerning the presence of a dent in the hood of the car which was stolen from her by Cooke on the date the deceased was run down.
This particular was abandoned.
(d)Fresh evidence of one John Barry Hanson, disclosed subsequent to the trial, original appeal and the special leave application, in an interview on 10 November 1993, which contradicts the evidence of Detective Sergeant John Wiley regarding the position of the deceased's body and the actions of the appellant and which corroborates the testimony of the appellant at the trial and the testimony of Cooke at the original appeal.
(e)Fresh evidence by one Douglas Wilkie, given in an interview on 29 April 1995 confirming he was the rider of a Vespa scooter on a date, which was probably 9 February 1963, and corroborated by Cooke's confessions by confirming the presence of Cooke in the locality where Ms Anderson was fatally injured and the actions of Cooke on that date in deliberately attempting to run him down in the manner to which Cooke confessed.
(f)Fresh evidence in a statutory declaration made on 12 November 1964 by the Rev George Jenkins (now deceased), being evidence of a confession to the killing of Ms Anderson made by Cooke at Fremantle Prison on 23 October 1964; and a "gallows" confession to such killing made to him by Cooke at Fremantle Prison approximately 15 minutes prior to Cooke's execution on 26 October 1964, being made at a time and in circumstances when Cooke had no motive other than to tell the truth.
(g)Fresh evidence of a confession by Cooke of "other serious crimes" made by Cooke at Fremantle Prison to one Leon Blank on various dates in 1963.
This particular was abandoned.
(h)Fresh evidence, not disclosed to the defence before the trial and appeal, of confessions by Cooke to the murder of the deceased and to the murder of one Jillian McPherson Brewer at Cottesloe on 20 December 1959 being:
(i)a confession made to Rev Prestage Lucas Sullivan on 31 October 1963 at Fremantle Police Headquarters, which evidence was contained in a statutory declaration sworn by the latter on 6 February 1964;
(ii)a confession made by Cooke to his wife Sarah Cooke at Fremantle Prison on various dates following his arrest; and
(iii)a confession made to Prison Warder Seiler at 9.00 pm on 8 January 1964 to the effect that two men were serving time for his crimes.
(i)Fresh evidence supporting Cooke's confessions in respect of his other assault victims which supports his confessions to other assaults.
(j)Fresh evidence of a letter dated 7 February 1964 written by Cooke to his lawyer Desmond Heenan, expressing fear of retribution against his family by the appellant and one Darryl Beamish upon their release, which tends to contradict the Crown case that the confessions of Cooke were false and made to advance his own interests and those of the appellant and Beamish.
(k)Fresh evidence contained in the Prison Occurrence Books for the period 6 April 1964 to 13 April 1964 to the effect that "he [Cooke] would not eat until they hanged him", which tended to contradict the Crown case that Cooke made the various confessions in order to prolong his own life.
At the hearing of the appeal counsel for the appellant sought and was granted leave to amend the particulars of fresh evidence by the deletion of subpars (c), (g) and (k) and the addition of the following particulars:
"(A)Fresh forensic evidence of Trevor Stephen Condren that the damage to the appellant's vehicle was not consistent with it being the vehicle involved in the death of Rosemary Anderson.
(B)Fresh forensic evidence of Neil Alister Turner that the injuries sustained by Rosemary Anderson were not consistent with having been caused by a vehicle travelling in the manner described in the Button confession."
The application to amend was made at the hearing of the appeal on 28 May 2001 when senior counsel for the appellant sought to call Mr Condren. Mr Condren's evidence was in the form of an affidavit sworn on 12 October 2000 the admissibility of which had been the subject of objections resulting in certain parts of the affidavit being ruled inadmissible by an order made by me on 29 February 2001. The basis for the objection at the hearing was that the evidence was not related to any ground of appeal. It was this defect which was sought to be remedied by the proposed amendment. Leave to amend was granted on the basis that the Court would receive the evidence subject to any objection, and subject, if necessary, to the deferment of cross‑examination to avoid any prejudice to the respondent. A similar objection was raised in relation to the evidence of Dr Turner, which was dealt with in the same way. On the face of it, in both cases it was new evidence which was not known to the defence at the trial, although in the relevant sense it was known to the Crown.
The remaining grounds of appeal were as follows:
"3.Having regard to the matters raised by the foregoing fresh evidence, the Court of Criminal Appeal in the Original Appeal was in error in failing to accept as similar fact evidence the evidence of the other crimes committed by Cooke.
4.Having regard to the fresh evidence referred to in ground 1, the Appellant lost a chance of acquittal which was reasonably open to him at the Trial had the evidence been disclosed, known of or reasonably available at the time of trial.
5.Having regard to the fresh evidence referred to in ground 1, in combination with the other evidence presented at trial and at the appeal to the Court of Criminal Appeal, it would not have been reasonably open for a jury to convict the Appellant with the offence of manslaughter."
At a directions hearing on 4 October 2000 an order was made that further and better particulars of the fresh evidence and other matters contained in the grounds of appeal were ordered to be supplied. Such particulars were supplied on 24 October 2000. I will refer to them in the context of the examination of the relevant grounds of appeal.
By a minute dated 15 May 2001 it was proposed to amend the grounds of appeal by adding the following ground as ground 6:
"(1)During the trial on the charge of the Wilful Murder of Rosemary Margaret Anderson which took place in the Supreme Court of Western Australia between 29 April and 4 May 1963, the jury was taken to in [sic] Stubbs Terrace, Shenton Park, in the absence of the accused to the alleged scene of the hit‑run collision in which Rosemary Margaret Anderson was fatally injured to view and hear evidence from a witness who explained how the events had occurred and how the fatality had happened.
(2)The members of the jury were shown by the witness where Rosemary Margaret Anderson was hit, where she was found, and where her handbag, shoes and other items were found.
(3)The jury walked along Stubbs Terrace in the course of the view.
(4)John Button was unaware of the view taking place.
(5)Without the accused being present during the entire case presented against him and having an opportunity to consider and refute what was presented during the view John Button was deprived of a fair trial."

During the course of the hearing on 30 May 2001 counsel for the appellant informed the Court that the proposed amendment was not being pursued.

New or fresh evidence

Where reliance is placed on fresh or new evidence the central issue is not whether the Crown withheld material or failed to disclose it, or whether there is now in existence evidence which was unavailable at the trial which could be categorised as either new or fresh. The central issue is whether, having regard to all of the material on which the appellant now relies, there was a miscarriage of justice at the trial. That is how the Crown formulated the relevant issue in Bradshaw v The Queen, unreported; CCA SCt of WA; Library No 970228; 13 May 1997 as appears in my judgment at 9 - 11 (with which Pidgeon and Owen JJ agreed):
"I accept the submission on behalf of the Crown that, at the end of the day, the question is whether there has been a miscarriage of justice in the context of s689 of the Criminal Code. That issue also has to be looked at in the context of the right of an accused to a fair trial: Whitehorn v The Queen (1983) 152 CLR 65; The Queen v Apostilides (1984) 154 CLR 56; and see R v Evans [1964] VR 71; R v Lucas [1973] VR 69; and R vEastwood and Boland [1973] VR 70. In order for there to be a fair trial the Crown is obliged to disclose to the defence all material available to it that is relevant or possibly relevant to any issue in the case: R v Keane (1995) 99 Cr App R. It was submitted on behalf of the applicant that this included material which went to the credit of Crown witnesses: R v Paraskeva (1983) 76 Cr App R 162 and R v Brown, unreported; The Times, 20 June 1994. In Archbold 1995 Vol 1, paras 4.265-4.272, the duty of disclosure to the defence by the prosecution is summarised. In R v Brown it was held that the Crown is obliged to disclose to the defence:
'That which can be seen on a sensible appraisal by the prosecution:
(1)to be relevant or possibly relevant to an issue in the case;
(2)to raise or possibly raise a new issue whose existence is not apparent from the evidence the prosecution proposes to use;
(3)to hold out a real as opposed to fanciful, prospect of providing a lead on evidence which goes to (1) or (2).'
In Archbold at par 4.266 it is said that:
'The present law is therefore fairly clear, although there remain areas of inconsistency, uncertainty and practical difficulty, most notably as regards: the scope of the prosecution's duty both in ascertaining all potentially disclosable matter and deciding upon its materiality in the absence of any adequate information as to the defence case; voluntary disclosure by the prosecution of matter which is, prima facie, covered by public interest immunity; disclosure of matter which goes only to the credibility of defence witnesses; and disclosure of matters held by third parties.'
In para 4.272 of Archbold it is said that:
'Matter which is "material" according to the above test must be disclosed, subject to the "exceptions" identified, post. This will include matter affecting the credibility of a prosecution witness. In R v Brown, ante, three examples were given:
(i)a previous inconsistent statement. Copies of such statements should be given to the defence, and it is submitted that it would not be sufficient simply to inform the defence of the existence thereof. Where the discrepancy relates to that part of a witness's evidence which is evidence against one defendant only, the statement should be supplied to any other co-defendant against whom the witness also gives evidence. (Baksh v R [1958] AC 167, PC);
(ii)the fact that a reward has been requested by a prosecution witness (R v Taylor and Taylor, 98 Cr App R 361, CA); and
(iii)previous convictions of prosecution witnesses (R v Collister and Warhurst, 38 Cr App R 100, CCA) or any other matter which is adverse to the character of a prosecution witness; see further the authorities cited post pars 4-342 et seq and pars 8-127 et seq'."
As Owen J said in Bradshaw at 2:
"In this appeal there is little or no dispute as to the relevant legal principles. The issue is whether the material available to the Crown at the time of the trial but not disclosed to the defence and the material that has since become available 'might well have influenced the result of the trial' had it been before the jury: Bryer v R (1994) 75 A Crim R 456 at 478. In deciding whether the material might have influenced the result of the trial the appellate court is required to assess the cogency of the additional material in the light of evidence adduced at trial and which the jury must be taken to have accepted: Ratten v R (1974) 131 CLR 510 at 518. The appellate tribunal must then decide whether there is a 'significant possibility that the jury, acting reasonably, would have acquitted the appellant': Mickelberg v R (1989) 167 CLR 259 at 273."
In Nolan v The Queen, unreported; CCA SCt of WA; Library No 970260; 22 May 1997 I said (with the agreement of Pidgeon and Murray JJ) at 62 - 63:
"A Court of Criminal Appeal should quash a verdict of guilty if the material presented to it shows the applicant to be innocent, or raises such a doubt about his guilt in the mind of the Court that the verdict should not be allowed to stand. In either case, the verdict should be quashed even though the material presented to the Court comprises new evidence which was not fresh evidence which was not available to the accused at the trial, or which could not have been available to him by the exercise of reasonable diligence in the preparation of his case: Ratten v The Queen (1974) 131 CLR 517 at 518 per Barwick CJ. The discretion to admit new evidence includes a consideration whether a miscarriage of justice may have occurred and whether there is a significant possibility that the jury acting reasonably would have acquitted the accused of the charge if that evidence had been before it: see also Gallagher v The Queen (1986) 160 CLR 392. Where the evidence is not fresh evidence but new evidence, as in this case, that is not necessarily fatal to the applicant. The question to be asked is whether the strength of the new evidence is such as to justify interference with the verdict: Gallagher at 395 per Gibbs CJ. The approach to the matter is first to ask whether the evidence is apparently credible and whether, if believed, it might reasonably have led the jury to return a different verdict."

Relevant facts and previous applications

The present appeal was opened by senior counsel for the appellant on the basis that the facts relating to the offence were set out in detail in the reasons of Wolff CJ in his judgment, on the appellant's application to the Court of Criminal Appeal on 22 May 1964, for an extension of time to make an application for leave to appeal.
On 9 February 1963 Ms Anderson, aged 17, was knocked down by a motor car in Stubbs Terrace, Shenton Park at about 10.45 pm and sustained injuries from which she died shortly afterwards. The appellant, then aged 19, was alleged by the Crown to be the driver of the car. The Crown case was that in a fit of temper the appellant deliberately drove the car at Ms Anderson with the intention to kill her.
Following his conviction no appeal or application for leave to appeal was lodged on behalf of the appellant within the prescribed time. The matter remained dormant until September 1963 when Mr Cooke claimed to have committed the offence. The time for an appeal or application for leave to appeal had expired in May 1963. While Mr Cooke's claim to have killed Ms Anderson was first made in September 1963, the application for an extension of time was not made until 4 December 1963. The application for an extension of time was made upon the ground that there had been a miscarriage of justice, in that Mr Cooke was the person responsible for killing Ms Anderson and had confessed to the commission of the offence.
The reasons for judgment in the Court of Criminal Appeal dated 22 May 1964 were extracted by the appellant's solicitors from the application book in the application for special leave to appeal to the High Court. I shall refer to the page numbers as they appear in the appeal books for this appeal.
The Chief Justice said at 80:
"In order to sustain the application for extension of time, the applicant must show some merit; not merely that Cooke says he committed the crime, but there is some cogent, reasonable and credible evidence according to the principles already discussed in the Beamish appeal in which we have just delivered judgment. This case differs from that of Beamish. That came before us as a reference from the Hon Minister for Justice under paragraph (a) of section 21 of the Criminal Code. Here the applicant Button starts off (by reason of the lapse of time) with the burden of demonstrating prima facie that there has been a miscarriage of justice and that an appeal would be likely to succeed, before the Court will grant an extension of time. It might have been better had the applicant petitioned the Minister as Beamish did. The principles are discussed in The Queen v Brown (1963 SALR p90). Nevertheless while dealing with the matter as an application for extension of time, the Court went very fully into all matters raised by the applicant's Counsel and at the conclusion of the motion received an assurance from him that on the hypothesis that the Court had granted the extension and the application for leave he would have had nothing further to offer by way of facts or argument: so that the Court is as fully informed as it would have been if an extension of time had been granted, and the Court had gone on to consider and had granted the application for leave to appeal."
The facts as related by the Chief Justice were that the appellant and Ms Anderson were on friendly terms. On 9 February 1963 she was visiting the appellant's parents' house in Redfern Street, Subiaco. The appellant's parents left the house in the evening, leaving Ms Anderson in company with the appellant and his younger brother. After an argument with the appellant, Ms Anderson said she would walk home to Graylands where she lived. To do this she would have had to walk about 3 miles going by the shortest practicable route. Prior to her departure the three of them had been playing strip poker. When Ms Anderson had lost certain articles of clothing, such as her jumper, stockings and girdle, the appellant sent his younger brother out and commenced to make improper advances to Ms Anderson, such as fondling her breasts. She objected and announced her intention to go home. Before the card game the appellant and Ms Anderson had gone to a nearby fish shop and purchased fish and chips. The three had played cards on the floor while eating their meal.
When Ms Anderson left she took her make‑up from the appellant's car, leaving in the house some of the articles she had taken off, namely, her stockings and a girdle. The appellant followed in his car, a near new Simca, having first put the stockings and the girdle in the back of the car. On several occasions he drew up alongside Ms Anderson and tried to get her to enter the car and "make it up", but she refused. Eventually he stopped the car near the junction of Nicholson Road and Railway Parade which is 15 to 20 yards from the subway in Nicholson Road. He sat in the car for a few minutes. He watched Ms Anderson walk under the subway and turn left into Stubbs Terrace along which she would walk on her way home to Graylands, which was south of the subway.
The appellant made a statement to police. Prior to making the statement, he denied that he had hit Ms Anderson and said that after she had turned under the subway he followed her up Stubbs Terrace only to find her lying in the sand at the side of the road opposite the Shenton Park Railway Station. He made more than one statement. In what was his final statement he said that he went after Ms Anderson and when she was nearly opposite the Shenton Park Railway Station, which was approximately 520 yards from the subway along Stubbs Terrace and 540 yards in a straight line from where he had been last standing with his car, he said he decided "to scare her by driving the car at her and as close as possible" at a speed of approximately 30 mph. He said that before he realised what had happened he had hit Ms Anderson with the left hand front side of the car. He heard a loud crunch and carried her a few yards on the front of the vehicle. He stopped his car and got out by opening the passenger side front door. He found Ms Anderson lying on the left hand side of the front of his car in the sand and a few feet off the edge of the bitumen. She was, he said, bleeding from a cut over the right eye. He lifted her up, inclined the back of the passenger seat backwards, put her through the front passenger door and closed it. In his evidence at the trial he said he ran around the front of the car to the driver's door, opened it, entered the car, closed the door and drove off at 60 to 70 mph to the surgery of a Dr Quinlivan in Alfred Road, Mt Claremont.
Almost immediately after the appellant got out of the car, two cars drove under the subway going south along Stubbs Terrace. The occupants saw the appellant's car. He was observed bending over the prostrate form of the girl as she lay in the sand. He was seen to pick her up and put her in his car and drive off. One car was a Morris Major Elite driven by a Mr Rogers. A passenger in this car, a Mr Rynn, saw the appellant's car at the side of the road with its headlights blazing and saw a man (who must have been the appellant) with a girl in his arms carrying her towards the car. Mr Rogers pulled up about 20 yards in front of the Simca. While some discussion took place between the persons in the Morris, the Simca drove off as described. The driver of the Morris tried to follow but the Simca was going too fast. However, the occupants got the appellant's car registration number as he sped by.
The other car was a Volkswagon driven by a Mr Hansen. A Mr Phillips was a passenger in the rear bench seat. This car was probably the first of the two cars on the scene. Mr Phillips saw a person (who must have been the appellant) bending over a body lying on the ground about 6 feet from the edge of the bitumen. There was a Simca car stationary alongside. It had its near side passenger door open. Its near side wheels were off the bitumen. The Volkswagon continued on, made a U‑turn and returned, stopping opposite the Simca on the other side of the road. Mr Phillips said that at that stage the man was putting a body in the car. The Volkswagon remained parked opposite for about a minute during which the man put the body in the car "through the open door". The Volkswagon then drove a little past the Simca and made another U‑turn, drove slowly up behind the Simca and then continued south along Stubbs Terrace. Not long afterwards the Simca passed the Volkswagon at a high rate of speed and the Volkswagon followed it to a Dr Quinlivan's surgery in Alfred Road, Mt Claremont. The appellant, who was the driver of the car, did not say anything to the occupants of these two cars. On arrival at Dr Quinlivan's surgery, Mr Phillips asked the appellant whether he wanted any help. The appellant replied "No".
At the doctor's surgery the appellant said that he did not know what happened. He gave no other information. As Wolff CJ put it:
"The circumstances seem suspicious and after giving the girl what attention he could at the surgery and arranging for an ambulance to take her to the Royal Perth Hospital, Quinlivan rang the police about 11.00 pm."
As set out at p 83 of the appeal book, Wolff CJ then described what followed:
"An inspection was made of the Simca which showed signs of damage on the front left hand side. Button was then taken to the scene where he pointed out where the girl had been lying, and articles were found scattered along the road North of this position. These articles were identified by Button as having belonged to the girl. The positions of certain blood stains where the girl had been lying and north of this position were also noted, and for reference the location of any articles or signs on the road was marked in chalk.
Early Sunday morning about 2.00 am a plastic, envelope type bag belonging to the girl was found in the junction of a street running off Stubbs Terrace near the scene. The bag was light and could have been blown from the scene by the wind.
The applicant Button made four statements to the police in connection with the matter. He made two verbal statements followed up by a written statement, all of which suggested the girl had been struck by a 'hit and run' vehicle. He studiously hid from the police the facts relating to the game of strip poker, gave a specious explanation at his trial of how the articles of clothing came to be in his car, and gave the reason for the girl's abrupt departure an argument over a piece of fish. Finally at a later stage in the evening after he had inquired about the girl and had been told she was dead, he said 'What have I done, it was all my fault', and on being asked 'Do you mean she was struck by your car?' he answered 'Yes'. He then gave a statement in writing concerning his running at the girl (as he said) to scare her.
At his trial his Counsel made strenuous objection to the admission of this statement, alleging that it had been got by improper means - that it had been forced out of Button by keeping him under detention for some hours at the CIB in Perth and that the police had despite his protestations of innocence plainly indicated that they did not believe him, and finally in order that he might be allowed to go home, he made and signed that statement on which the Crown relied.
Argument was heard on the voir dire for 1½ days and Button himself gave evidence. At the conclusion the trial Judge held that the statement was admissible and gave a careful statement of his reasons for doing so. We have had the advantage of reading the learned Judge's reasons for admitting the statement and it is important to note that he formed an unfavourable opinion as to Button's credibility: an opinion which might be gathered by anyone reading his evidence let alone hearing it.
The mainstay of Button's case was the small amount of damage to the car, in view of the speed at which it was said the car was going, and the grievous injuries suffered by the girl.
From this it is argued that it could not have been Button's car that struck the girl. To draw any definite conclusions from the damage to a vehicle would be foolish indeed. Over a period of many years I venture to say each of the members of this Court has seen cases where the damage done to a vehicle colliding with a human being is of small significance where the injury to the person has been great. The weight of the vehicle, its speed, and the part of the vehicle which takes the main brunt of the first impact have a bearing on the resultant damage to it; so has the individual who is struck, the ground where he falls and how he falls. If a person is running out of the way or is hit at a particular angle, that will have a bearing. The factors that can affect the situation are of course infinite.
Listening to the argument on the motion, I got the impression that this application might have been an appeal in another guise against the jury's implicit finding of fact that Button's car was the one involved. The point was very thoroughly discussed at the trial and the jury fully informed of the implications of the evidence. Before leaving this point it should be mentioned that the car which Cooke says he was driving and which he says hit the girl sustained little damage, so that if the Court accepts Cooke's story as credible it is substituting one very little damaged car for another which may be similarly described. Nevertheless, there are certain features about the condition of Button's car as seen on the night of the 9th February and early morning of the 10th February, 1963 which are materially significant in pointing to the conclusion that it was the car that hit the girl."

Wolff CJ then detailed a number of signs of the collision observed on the roadway which led him to conclude that Ms Anderson had been hit by a car and "carried and/or flung a little over 60 yards". Reference was made to blood stains on the car. There was one thick stain about 2 inches long and half an inch wide which proved to be human blood group A, as had a number of blood spots on the road. Ms Anderson's blood group was A Rhesus Negative.
Wolff CJ then gave an account of the damage to the appellant's Simca and made his comments on it at 86 - 87 of the appeal book. I shall deal with this material later in the context of the expert forensic evidence relied upon by the appellant. At 87 - 88 of the appeal book Wolff CJ described the injuries suffered by Ms Anderson and concluded at 88 that:
"From the appearance of the injuries, the surgeon performing the autopsy gave as his opinion that the girl had been hit violently with some object and had then gone feet first with the front of her body sliding along the rough surface of the road. There were various indications on the skin of the sliding or scraping - in such cases the skin presents a parchment‑like appearance and this was the condition observed at the post‑mortem."
In the present appeal there was additional medical evidence called from Dr Turner, the doctor who treated Ms Anderson following her transfer to Royal Perth Hospital. I will refer to this in the context of consideration of the relevant ground.
Wolff CJ then considered the sworn testimony of Mr Cooke that it was he who drove the car that hit Ms Anderson on the night in question. I propose to deal with that in the context of the grounds of appeal so far as they rely upon Cooke's confessions which are dealt with by Wolff CJ at 88 - 102. Finally, in the first appeal, the appellant sought to rely upon evidence of "similar acts" involving incidents in which Mr Cooke was the driver of a car and ran down women on five separate occasions on and from 12 September 1958 to and including 20 May 1960. Wolff CJ dealt with that aspect of the first appeal as follows:
"One of these incidents concerned running at three women walking together on the road and he hit two of them, and on another occasion when he knocked down a woman he returned and stole her purse. While the applicant's Counsel denied that this evidence is introduced to prove the applicant's case by establishing a propensity, I cannot help thinking that despite the denial that is the tenuous ground on which it is sought to introduce it. In the result that would be the only 'evidence' (if it could be called by that name) to establish the applicant's case; the claim made by Cooke to have killed the girl Anderson, is so bad at its core and so obviously fabricated, that the admission of the other unconnected acts could not help the applicant against whom the evidence is very strong. As in the Beamish case these other alleged instances must be regarded as an open question so far as this Court is concerned, and the fact that the police have been willing to accept the evidence as implicating Cooke depends, of course, on the investigation of these cases and the general remarks made in considering similar evidence in the Beamish appeal apply with equal force here."
The references in the judgment in the appellant's first appeal to the judgment in "Beamish" are references to Beamish v The Queen (No 2), unreported; CCA SCt of WA; Library No 20 of 1964; 22 May 1964. That was Beamish's second appeal, which I will refer to as Beamish No 2. On that occasion the court was constituted by Wolff CJ, Jackson and Virtue JJ. The second appeal by Beamish was by way of a reference from the Minister for Justice under s 21 of the Criminal Code, a predecessor of s 140 of the Sentencing Act 1995 and expressed in similar terms. There was an earlier appeal by Beamish to the Court of Criminal Appeal constituted by Jackson SPJ, Virtue and D'Arcy JJ reported as Beamish v The Queen [1962] WAR 85, to which I shall refer as "Beamish No 1". One curious aspect of the second appeal by Beamish was that the Court was then presided over by Wolff CJ, who had been the presiding Judge at Beamish's trial.
In Beamish No 2, as in the case of the appellant's first appeal, reliance was placed upon evidence by Mr Cooke that he had committed the offence in question. In each case Mr Cooke's evidence was rejected as being without credibility. The only connection between the two cases is that in both Beamish No 2 and in the present appellant's first appeal, reliance was placed upon confessions by Mr Cooke to the crimes of which each had been convicted.

Ground 2(b): Fresh forensic evidence

Fresh evidence regarding damage to appellant's vehicle

It is convenient to deal first with the fresh forensic evidence relied upon by the appellant to establish that, contrary to the police forensic evidence given at the trial, there was no or no sufficient forensic evidence that would justify the conclusion that the appellant's Simca vehicle had collided with a pedestrian on the night in question.
In this context it is appropriate first to set out the reasons for judgment of Wolff CJ at 84 ff dealing with the forensic evidence and containing what the Chief Justice described as "a survey" of the "signs that appeared on the roadway and the damage to the car [ie the Simca], and the injuries sustained by the girl". The learned Chief Justice dealt with these matters as follows:
"The examination of the roadway revealed many signs of the collision. The following significant signs were observed:-
(1)A small cosmetic lotion bottle which belonged to the girl. This was found in a slightly convex curving track in the sand near the Eastern edge of the bitumen - this track was about 110 feet long. It commenced about 450 feet North of where the girl lay in the sand. The cosmetic bottle was found standing up - about 80 ft South down the track. The track could not be identified as being made by any particular vehicle;
(2)a straight scrape mark about 3 feet long near the Eastern edge of the bitumen lying at about 10 o'clock as one faced North;
(3)blood stains just off the bitumen about 180 feet from the cosmetic bottle and spread along some loose stones over a distance of about 30 inches. These proved to be human blood Group A;
(4)the right shoe of the girl about 45 feet farther down the road at the Eastern edge of the bitumen;
(5)the girl's lipstick a little East of the centre of the bitumen and about 40 feet farther down the road from the shoe;
(6)the girl's brush about 2 feet farther on and slightly more to the West of the centre of the bitumen;
(7)the girl's comb about 25 feet farther down the road and about 3 feet from the Eastern edge of the bitumen;
(8)the girl's left shoe about 15 feet farther down the road and approximately in the prolongation of the Western edge of the road and about 35 feet from the kerb;
(9)some blood spots; some alongside and some just off the bitumen on the Eastern side commencing about 85 feet from where the comb was found and the blood spots continuing over a distance of about 10 feet. These blood spots were identified as human blood, Group A. One patch was about 6" in diameter.
The distance from the bottle to the first blood mark was 175 feet;
and from the bottle to the second blood mark 366 feet;
and from the scrape mark to the Southernmost blood mark 223 feet.
The North end of the convex track in the sand was about 230 yards from the mouth of the subway.
From the circumstantial evidence it would appear that the girl had been carried and/or flung a little over 60 yards.
Mr Drummond, a pathologist, examined the Simca car. On the lift [sic left] headlight Mr Drummond saw small reddish brown smears and two smears in the centre of the glass. On the metal rim above the glass there were two spots and on the same rim below there were another two spots. These spots proved to be human blood but there was not sufficient for typing. The spots on the rim were about a pin head in size. Other blood stains and spots on the door frame and inside rear of the car were of neutral significance.
There was a patch of reddish brown stains over an area of about 5 inches in diameter near the top of the curve of the offside front mudguard. One stain was thick about 2 inches long and half-an-inch wide. This too proved to be human blood Group A.
The girl Anderson's blood group is a [sic A] Rhesus negative.
The damage done to the car was slight. It was difficult for an expert to say how much could be due to hitting the girl because about a month before Button's car had collided with the back of a small car at the junction of King Street in St George's Terrace. The impact was light. Button reported the accident, specifying that the grille and park light on his vehicle were damaged and said in reporting that he estimated the cost of repairing the damage at less than £25. Button ascribed all the damage to the car as it was observed on the 9th February following, to this collision, but he was contradicted in that by the girl's father who had seen the car after the St George's Terrace collision. In that impact the left hand or near side of Button's vehicle had collided with the back of the right hand or offside of a Ford Prefect belonging to a Mr Wilson. When Button's car was examined after the night of the 9th February, 1963, it was found that in addition to the damage to the radiator grille and the blinker light on the near side, the front registration plate was bent slightly underneath the bumper and the paintwork was chipped on the left side of the plate. The radiator grille lower surround panel was pulled away at the join of the mudguard; the left mudguard was dented inwards at the front below the headlights; the left headlight rim was buckled and slightly sprung from its mounting; the left side radiator air deflector was sprung from its mounting and pushed back; and the bonnet was slightly dented in four places on the top at the right side of the mascot. The headlights were tested for adjustment, and while the right or offside was in order it was found that the left or near side was badly out of adjustment; it would illuminate the roadway only 7 ft 6 in in front of the vehicle.
Button could not explain how the dents got on the bonnet of the car, although he said they were there before the night the girl was killed. When asked about the blood spots he could give no explanation, although at his trial he suggested they might have got there if he had put his hand on the car to steady himself as he ran around to the driver's door; that he had a lot of blood on his chest and hands and perhaps some blood got on the places specified when he may have touched them unwittingly.
The girl's father said in evidence that he had seen the car a week prior to the 9th February and that there was then no damage to the bonnet of the car.
Mr Wilson, the driver of the Ford Prefect, testified that he looked at the Simca after the collision and there was no damage to the bonnet, and that he saw the Simca on the 13th February, 1963, he saw the dents in the bonnet which had not been there before and fresh damage to the near side head lamp.
Referring to Button's explanation as to the blood spots, the explanation is incredible. One may 'explain' anything, but this is a case where the import of the blood spots cannot be explained away. It is highly unlikely that this kind of spotting accurred [sic occurred] at the several places by Button's steadying himself with his hand on the car as he ran round the front, even if this theory could be accepted as fact. The position of the spots on the left headlight glass and rim in particular will not square with Button's theory. As to the damage to the headlight and the bonnet, that does not fit in with the report he made, and Mr Wilson the driver of the Ford Prefect refutes Button's testimony that the headlight and bonnet were in the damaged condition they were found in after the 9th February, as a result of the January collision.
The girl died early after admission to the Royal Perth Hospital. A post‑mortem examination indicated that she had been struck a very violent blow consistent with a motor car running into her.
She had numerous abrasions on the front of her body which may be summarised as follows:-
a large laceration with ragged edges over the right eyebrow;
a small abrasion ½ in above this;
an abrasion 1½ in long under the chin;
small abrasions on the bridge of the nose and on the back of the left hand and of the five fingers of the same hand;
a large abrasion on the outside of the right forearm;
large abrasion involving the whole or the fronts and sides of both thighs and knees;
a laceration 1" long on the front of the iliac spines, that is to say, over the pelvic area on either side;
a laceration of the right big toe;
there was bruising on the outer side of both calves: under the left bruise there was a fracture of the upper quarter of the shaft of the fibula.
Internally:
There was intensive subarchnoid haemorrhage over the whole of the brain and small bruising on the inner surface of the right temporal lobe;
in the lungs there were areas of dark discolouration from haemorrhage;
the abdominal cavity was full of fluid dark blood and there was a tear on the anterior edge of the liver between the right and left lobes;
there was also extensive haemorrhage at the root of the spleen.
The cause of death was haemorrhage resulting from the ruptured liver and subarachnoid haemorrhage.
From the appearance of the injuries, the surgeon performing the autopsy gave as his opinion that the girl had been hit violently with some object and then gone feet first with the front of her body sliding along the rough surface of the road. There were various indications on the skin of this sliding or scraping - in such cases the skin presents a parchment‑like appearance and this was the condition observed at the post‑mortem."
Ground 2(b) of the grounds of appeal contended that:
"Fresh forensic evidence now available (full particulars of which will be provided prior to the hearing of this appeal) due to recent developments in forensic science relating to the damage said to have been sustained by the Appellant's vehicle on the night in question which evidence corroborates significantly the testimony of the Appellant at the trial and the testimony of Cooke as given at the appeal.
Particulars
Further testing by methods now available has established that the damage sustained by the Appellant's vehicle was inconsistent with:
(i)having struck the victim the Deceased, and;
(ii)having struck a pedestrian at all."
As I have already indicated these particulars were amended at the hearing of the appeal by making the above particulars par (a) and by the addition of the following:
"(b)(A)Fresh forensic evidence of Trevor Stephen Condren that the damage to the Appellant's vehicle was not consistent with it being the vehicle involved in the death of Rosemary Anderson.
(B)Fresh forensic evidence of Neil Alister Turner that the injuries sustained by Rosemary Anderson were not consistent with having been caused by a vehicle travelling in the manner described in the Button confession."
Leave to amend was granted.

Evidence of Trevor Stephen Condren

In this context the appellant sought to rely upon an affidavit of Trevor Stephen Condren sworn on 12 October 2000. Mr Condren is now retired. In 1963 he was a first class constable in the WA Police Force and a Fatal Accident Vehicle Examiner attached to the Traffic Branch, Perth. He gave evidence as a witness for the prosecution at the trial. His name was incorrectly recorded in the transcript as "Condron". He was the holder of an Institute of Automobile Mechanical Engineers Certificate (Member Grade) and an Australian Institute of Advanced Motorists Certificate (Advanced Driving and Police Pursuit). He had been a member of the Police Force since 1953. He carried out his duties as a vehicle examiner for some 18 years from 1956 to 1974. On 12 February 1963, at the request of officers of the Criminal Investigation Branch ("CIB"), he inspected the appellant's Simca and prepared a report. The request was made on behalf of the investigating officers, namely Inspector Douglas, Detective Sergeant Nielson, Detective Sergeant Deering and Detective Sergeant Wiley. Inspector Douglas was in charge of the Fatal Accidents Squad and Detective Sergeant Deering was the former's "right hand man".
Mr Condren's evidence was contained in an affidavit sworn on 12 October 2000 and served upon the respondent. At the hearing of the appeal an objection was taken to the admissibility of Mr Condren's evidence on the ground that it related to a matter which was not the subject of a ground of appeal or any relevant particular. Mr Condren's affidavit was one which was before the Court when, on 6 December 2000, sitting as a single Judge of the Court, I dealt with objections to the admissibility of a number of affidavits. The purpose of that hearing was to deal with any objections to the admissibility of evidence contained in such affidavits. At that time the Crown did not object to the admissibility of the affidavit. Counsel for the Crown merely informed the Court that the facts asserted and the opinion expressed were disputed.
While prior to the hearing of the appeal the precise basis upon which the evidence of Mr Condren was said to be admissible, other than under the general rubric of "fresh evidence" was not clear, during the course of the hearing of the appeal the appellant made available supplementary submissions in which it was submitted that the evidence of Mr Condren, insofar as it was fresh, confirmed and corroborated the evidence of Mr Haight. The evidence of the latter was that the damage to the appellant's Simca vehicle was inconsistent with the vehicle having struck a pedestrian in the manner described by the appellant in his confession or at all. The fresh evidence of Mr Condren was his opinion, which he formed at the time and which he still holds, that the physical damage to the appellant's Simca vehicle was inconsistent with the vehicle having struck a pedestrian. He did not give that evidence at the trial because he was not asked. His function at the trial was to give evidence of the results of his examination of the physical condition of the Simca motor vehicle alleged to have been involved in the incident in which Ms Anderson was killed. It follows that his evidence was not fresh, but new, although it was unknown to the defence at the trial.
His evidence was that the purpose of his examination was to determine the mechanical condition of the vehicle and the extent of any damage to it. The CIB officers to which reference has been made were present at the examination. When he commenced his inspection he was informed that the vehicle had been involved in an accident with a pedestrian and the driver had been charged and had confessed. He was also informed that the vehicle had been involved in a minor collision with a Ford Prefect some three weeks or more before. He confirmed the report which he prepared for the purposes of the prosecution of the appellant. The damage fell into two distinct categories. The first was some damage to the front left hand side and the second was some minor damage to the bonnet to the right of centre. The damage to the bonnet was of a minor nature. From his observation of the damage, he did not consider that the damage to the Simca was consistent with the vehicle having collided with a pedestrian. The basis for this opinion was that there were no apparent contact marks of a body such as blood, skin, hair, clothing or fabric, anywhere on the vehicle. The degree of damage was not severe.
Mr Condren said that he commented to the officers present that he did not think that the vehicle had struck a pedestrian. He did not express that opinion when he gave evidence in the court in 1963. He was not asked by anyone to express an opinion on that issue. He explained that his role at the trial was to give evidence of his examination of the vehicle in terms of its mechanical condition and damage. He said there was no mention in his evidence about a pedestrian or injury to a pedestrian, because he found no evidence of collision with a pedestrian. It was put to him in cross-examination that it was not his job to deal with blood or skin or clothing, but he said that "if they were adhering to the motor vehicle, it was his job to note them and report". He did not put his opinion in his report because his function was to make an examination of the vehicle for damage and prepare a report of such damage. He accepted that it was not his role in 1963 to express an opinion whether or not the vehicle had come into contact with a pedestrian. In his evidence at the trial on 30 April 1963 he was asked:
"And the object of your examination was to see what damage you could find, wasn't it?"
His answer was:
"Well damage and mechanical condition is the main consideration."

He confirmed in this Court that that was his function at the relevant time. He accepted that, at that time, there were others better qualified than himself to deal with the question whether the vehicle had come into contact with a pedestrian.
He remained in the Police Force for 22 years after the Button trial. He did not come forward to give evidence at the appellant's appeal in 1964 because he was not then "qualified to give that sort of evidence". His opinion when giving evidence in the present appeal was based upon his accumulated experience during his service. He said he had "very rarely" seen vehicles that had come into contact with people and there were no signs of the impact. As he said:
"This was alleged to be a major impact. If so, there would be signs of blood, skin, hair, fat, clothing and such like on the vehicle on the damaged areas."
He did not report his opinion at the time to Sergeant Court, who was the officer in charge of Traffic and Vehicle Examiners because it was an opinion of his "against four senior CIB officers".
Mr Condren said he became involved in the present proceedings after reading the book Broken Lives by Ms Estelle Blackburn. When he read the book he made contact with the author and commented on several matters, with the result that he was subsequently called to give evidence.
At the request of counsel for the appellant, the Crown produced a number of photographs being enlargements of original photographs produced from police custody depicting the damage to the appellant's Simca motor vehicle. The photographs were not in fact exhibited at the trial. Counsel for the Crown informed us that counsel for the appellant at the time, Mr K W Hatfield QC objected to the photographs on the basis that they did not truly represent the damage. The reason was that they tended to exaggerate the damage because they were over‑exposed. In the present proceedings, they were being referred to by the witness to explain his current opinion to the Court, which was the opinion he had expressed to the CIB officers at the time. Mr Condren confirmed that the damage as depicted in the photographs was as he had observed and noted in his report. He confirmed his opinion that the damage was not caused by a collision with a pedestrian.
While the photographs themselves were not fresh evidence, I consider that they were admissible to explain and assist in understanding Mr Condren's evidence. They became exhibits 1 and 2 in the appeal. There was also a further photograph which was identified by Mr Condren as depicting damage to the left hand side of the vehicle. It was described to Mr Condren by the CIB officers as unrelated to the incident involving Ms Anderson. That photograph became exhibit 3 in the appeal.
In cross‑examination Mr Condren recalled that the fourth police officer participating in the examination was Detective Sergeant Wiley. Inspector Douglas was the officer in charge of that squad. Detective Sergeant Wiley was the officer responsible for giving expert evidence at the appellant's trial about the vehicle and pedestrian damage. In cross‑examination Mr Condren maintained that so far as his inspection was concerned, there was no evidence on the vehicle itself of any collision with a pedestrian. The following passage appears in the cross‑examination:
"I suggest to you, Mr Condren, it was not your function to express an opinion about injury or otherwise?---Injuries, No.
Not at all?---No.
Nor was it your role to express an opinion as to whether or not the vehicle had made contact with a pedestrian?---The officers informed me that it had collided with a pedestrian.
Mr Condren, it was not your job, was it in 1963, to express an opinion as to whether or not the vehicle had come into contact with a pedestrian?---No."
Mr Condren also gave evidence at the trial that it was possible that the damage sustained to the left hand side of the Simca had been caused in the earlier accident with the Prefect. He was shown photographs of both vehicles and said that the damage to the Simca was consistent with being in contact with the rear of the Ford Prefect. Mr Condren did not believe that the damage to the Simca on the left hand side could have been caused in a collision with a pedestrian. In response to a specific question from the trial Judge whether he reached his opinion from what he saw or from what he was told or a combination of both, Mr Condren answered:
"Well, Sir, having been told that the vehicle had been in a previous accident, I would agree that it is possible that that could have been the damage from the previous accident."
Having read his evidence in conjunction with the cross‑examination in the present proceedings, the effect of his evidence was that the damage to the left front of the Simca around the headlight, radiator and mudguard was consistent with the Simca having collided with the Ford Prefect in the manner described.
The relevant damage did not include the damage to the bonnet on the Simca. It was not suggested that that was caused in any way by the collision with the Ford Prefect on 7 January 1963. With the help of photographs which became exhibits 4 and 5, Mr Condren confirmed in re‑examination that the relevant damage as depicted was "consistent with those two vehicles coming together".
Mr Condren's evidence at the appeal was that he could not exclude the possibility that the damage to the headlight may have occurred as a result of the incident in which Ms Anderson was injured. While acknowledging the possibility, Mr Condren said that he believed that all of the damage to the Simca at the left front arose from contact with the Ford Prefect. It was his opinion that, had the Simca been involved in a very heavy impact and driven at night, the filament of the headlight globe would most certainly have fallen off the light and the light would not work. When he examined the vehicle the headlight was working but the parking light was not.
In my opinion, in view of the fact that Mr Condren had formed the view that the damage to the Simca was inconsistent with the vehicle having struck a pedestrian on the night in question, that evidence would have been relevant and admissible, assuming that he was then qualified to express an expert opinion. The opinion he expressed was made known to Inspector Douglas and the others present, including Detective Sergeant Wiley. Detective Sergeant Wiley was the officer who gave expert evidence at the trial about the condition and damage to the appellant's Simca motor vehicle.
Mr Condren accepted that at the relevant time there were others better qualified than himself to deal with the question whether or not the Simca had come into contact with a pedestrian. When Mr Cooke had come forward saying he was responsible for the deaths of Ms Anderson and a Ms Brewer (for whose murder one Darryl Beamish had been convicted), he did not then go and see the prosecutor because he felt then that he was not qualified to give the evidence.
The question whether the damage to the Simca or any part of it was consistent with having struck Ms Anderson and caused the injuries which brought about her death was a critical issue at the trial. In my opinion, although Mr Condren's area related to the examination and report of physical damage to the vehicle, his observation that there were no indications of the vehicle having struck a pedestrian by way of blood, skin or hair on any part of the vehicle, coupled with his comments about the left hand headlight, were relevant and admissible. In particular, he had made known to Inspector Douglas and Detective Sergeant Wiley his opinion that there was no indication that the Simca had come into contact with a pedestrian. It must be noted, however, that contrary the observation of Mr Condren, there were blood spots on the Simca in the vicinity of the left headlight which were group A and the other signs of blood referred to by Wolff CJ.
The information and opinion of Mr Condren was known to Inspector Douglas and Detective Sergeant Wiley. It was on that basis available to the Crown. As I said in Bradshaw, supra, at 11 - 12, with the agreement of Pidgeon and Owen JJ:
"It was submitted that the duty of disclosure included the obligation to make enquiry to ascertain whether discoverable matter existed and to ensure its preservation: Archbold, para 4.268. Further, if material was available to the Crown, on the basis that it was known to the police, for example, the accused was entitled to it, whether or not its existence was known to prosecuting counsel: R v Ward (1993) 93 Cr App R 1. I accept these submissions. In such a case, however, it is not necessary for the appellate court to determine whether there was any fault on the part of the prosecutor in this respect. Innocent failure to disclose relevant material may nonetheless constitute a miscarriage of justice: Clarkson v DPP [1990] VR 745 at 755 per Murphy J; and see The Queen v Apostilides (1984) 154 CLR 563. If after conviction it came to the offender's knowledge that the Crown had in its possession or available to it during his trial documentary material which he had requested, but which had been innocently denied by the Crown, that is a situation which could lead to a miscarriage of justice, if the availability of the material might have influenced the result of the trial. See also Bryer (1994) 75 A Crim R 456 at 477-478 per Williams J.
It was accepted that the relevant criterion to be applied in determining whether there has been a miscarriage of justice is whether disclosure of the material in question to the defence might well have influenced the result of the trial: see Clarkson; and Bryer, above. So far as fresh evidence which was not available at the time of trial is concerned, it was also accepted that a miscarriage of justice will occur if evidence which is now available and not led at the trial was such that, if given, a jury acting reasonably must have entertained a reasonable doubt so as to entitle the accused to an acquittal. In the case of fresh evidence this involves a three stage test. First, it must be shown that the evidence relied upon could not, with reasonable diligence, have been produced by the accused at the trial (although this is not a universal and inflexible requirement). Secondly, the evidence must be capable of belief. Thirdly, there must be a significant possibility that the jury, acting reasonably, would have acquitted the appellant had the fresh evidence been before it at the trial: Gallagher v The Queen (1986) 160 CLR 392 at 395 per Gibbs CJ; and see Mickelberg v The Queen (1989) 167 CLR 259."
While it may be accepted that Mr Condren, as he conceded, was not qualified in 1963 to give expert evidence concerning the issue whether the damage to the Simca was consistent with that vehicle having struck a pedestrian, I am of the opinion that he demonstrated before this Court that when he gave his evidence in this appeal he was sufficiently qualified to express such an opinion. There was no significant challenge to his present competence to express the opinion which he did. His evidence was relevant and admissible whether it be classified as fresh or new evidence. Standing alone, however, it was by no means conclusive, having regard to the evidence of blood stains, to which I have referred.

Evidence of William Russell Haight

The appellant's case on the contention that the Simca had not been the vehicle which struck Ms Anderson relied primarily and substantially on the evidence of Mr W R Haight of San Diego, California, USA, an expert in traffic accident reconstruction. He is accredited as a Traffic Accident Reconstructionist by the United States Accreditation Commission for Traffic Accident Reconstruction ("ACTAR") established by the United States Department of Transportation. He has held a certificate of qualification from ACTAR since 1991 or 1992. The purpose of traffic crash or collision reconstruction is the application of the science of physics to determine how the crash or collision occurred, the factors which led up to the crash or collision, what happened during it and what occurred after it as a direct result.
Mr Haight is a lecturer with the Texas A and M University where he teaches courses on accident reconstruction. He also practises as a consultant in relation to traffic collision issues. He has given expert evidence throughout the United States in both local courts and in the Federal Court of the United States as well as in Singapore and Australia. He has held a statutory qualification in California under s 40600 of the Vehicle Code of California which prescribes the minimum qualifications for police officers in relation to the investigation and reconstruction of traffic collisions. At the Texas A and M University Mr Haight teaches or is involved in some 11 courses dealing with different aspects of traffic accident reconstruction. This covers a range of collisions from low speed collisions to an analysis of damage and energy in crashes. One course relevant in the present context, which he has been teaching since 1990, relates to motor vehicle collisions in which a pedestrian or cyclist is involved.
Prior to taking up his teaching post at Texas A and M University, Mr Haight was an Adjunct Instructor for the Northwestern University Traffic Institute, and since he has been with Texas A and M, he has held a post‑graduate position with the American Academy of Manual and Physical Medicine teaching accident reconstruction courses. He has also taught courses in Australia and New Zealand, including a course in 1995 for the Queensland Police and Queensland University of Technology in pedestrian and bicycle accident reconstruction. This was attended by police officers from various parts of Australia. He gave a course on general aspects of accident reconstruction in Brisbane in 1997 or 1998. In April 2001 he taught a similar course at the Royal New Zealand Police College. He has published 25 or 26 technical papers on aspects of accident reconstruction, including five or six papers on accident reconstruction involving pedestrians and cyclists.
From 1980 to 1984 he was a police officer with the Accident Investigation Bureau of the California Police Department in San Diego. He left the Department in 1984 to pursue a career as a consultant and teacher. He has served on committees and worked as a consultant in relation to accident reconstruction since then. He is a member of the Society of Automotive Engineers and several other professional associations, both national and international based in the United States and elsewhere, including Australia.
Since 1985 he has undertaken a substantial number of accident reconstruction tests, totalling some 770 as at May 2001. Of those, he has been personally involved in testing in relation to 250 reconstructions involving either a pedestrian or a cyclist in a collision with a motor vehicle.
In March 1999 Mr Haight was asked by a Mr Brett Christian, Editor of the Post Newspaper, to review documents and materials relating to the events leading to the charge against the appellant, his trial, conviction and appeals. The purpose was to evaluate the version of the events put forward by the Crown at the appellant's trial, with a view to determining the reliability of the Crown's case, insofar as it was based on the collision investigation technology at the time and in light of that which has been since developed.
For the purposes of this case Mr Haight examined photographs of the appellant's Simca motor vehicle, as well as other vehicles, photographs of the collision scene, the original reports for the purposes of the trial, as well as the transcript and documents relating to the trial and the appeal. He visited the scene of the collision in Stubbs Terrace, Shenton Park on three or four occasions. He subsequently reconstructed and carried out crash tests in relation to the collision involving Ms Anderson.
In Mr Haight's opinion the photographs and other documents relating to the present case were not only intact but well preserved, particularly the police photographs of the Simca vehicle. The scene photographs and the transcripts and other documents that had been preserved made this case an easy one to analyse in his opinion.
Mr Haight described how crash test analysis had developed. The first known reconstruction was in the United States in 1948. Development after that was relatively slow in the 1950s. It was not until the late 1970s that the motor vehicle manufacturers and the United States Government became involved in looking at vehicle damage, as it related to impact speed, and accident reconstruction was taken seriously. The first pedestrian crash tests had been undertaken by a Dr Severy at the University of California Los Angeles on 29 May 1963, which resulted in the first known paper on pedestrian‑involved collision analysis. A real body of literature was developed in the 1970s and 1980s.
It is apparent from the evidence given by Mr Haight that there have been major advances in the investigation of vehicle crashes and collisions both of a vehicle to vehicle character and those involving a vehicle and a pedestrian since the 1960s. The Court is entitled to re‑examine a previous conviction when there have been developments in technology or investigative techniques which indicate that a miscarriage of justice may have occurred. McIlkenny v The Queen (1991) 93 Cr App R 287 provides a significant example. This was the case commonly referred to as "The Birmingham Six". The appellants were each convicted of 21 counts of murder in 1975. An application for leave to appeal to the Court of Appeal was dismissed. An attempt to contest the verdicts of guilty in McIlkenny v Chief Constable of West Midlands Police Force [1980] 2 All ER 227 also failed. The plaintiffs had been found guilty of murder as a result of the bombing of two hotels in Birmingham. They claimed at their trial that they had been beaten up by police. Medical evidence that they had been beaten up before being imprisoned was rejected and confessions obtained were ruled admissible. They then brought an action against the Chief Constable claiming damages for assault by police officers.
The Chief Constable applied to have the action struck out on the ground that it raised an issue which had been determined at the murder trial on a voir dire. On the hearing of the application the plaintiffs adduced new evidence consisting of statements from prison officers and expert forensic evidence that at least some of their injuries had been inflicted before they left police custody. The primary Judge held that the new evidence prevented him from striking out the action because it was reasonably conceivable that another tribunal acting judicially might now accept at least part of the plaintiffs' case. On an appeal to the Court of Appeal Lord Denning MR and Sir George Baker, Goff LJ dissenting, held that the plaintiffs were estopped from raising the issue because it had already been determined against them in a court of competent jurisdiction in the criminal proceedings to which they were parties and in which they had had a full and fair opportunity to present their case. It was also concluded that the relevant evidence they sought to present could have been obtained for the purposes of the earlier proceedings by the exercise of reasonable diligence.
Lord Denning MR (with whom Sir George Baker agreed) said at 240:
"This case shows what a civilised country we are. Here are six men who have been proved guilty of the most wicked murder of 21 innocent people. They have no money. Yet the state lavished large sums on their defence. They were convicted of murder and sentenced to imprisonment for life. In their evidence they were guilty of gross perjury. Yet the state continued to lavish large sums on them, in their actions against the police. It is high time that it stopped. It is really an attempt to set aside the convictions by a sidewind. It is a scandal that it should be allowed to continue. The issue was fully tried out and decided by Bridge J at the 'trial within a trial'. His finding on that issue is decisive unless there are circumstances which make it fair or just to re‑open it. I see no such circumstances. I would allow the appeal and strike out these actions on the grounds of issue estoppel."

The Crown objected to this evidence as inadmissible hearsay which related to Mr Cooke's state of mind in February 1964 and, in any event, was irrelevant to any issue on the appeal. In my view the evidence was inadmissible hearsay.
At one stage the appellant sought to rely on evidence of an attempted hit and run incident alleged to have been witnessed by one Derek Tomlinson referred to in ground 2(j) in the further and better particulars of the notice of appeal dated 4 October 2000. This was not pursued.

Conclusion

In the result I have concluded that the evidence of Mr Haight supported by the evidence of Mr Condren is sufficient to raise a reasonable doubt whether the appellant's Simca motor vehicle was involved in running down Ms Anderson on 9 February 1963. The evidence of Mr Haight also tends to substantially corroborate the evidence of Mr Cooke, whether the latter was mistaken about the side of the vehicle

which hit Ms Anderson or whether he swerved off the road in the manner he described and constituted the alternative scenario described by Mr Haight. The evidence of Cooke's propensity to seek out women walking on the side of the road and run them down is compelling. In my opinion, it overwhelms whatever doubts may have been held concerning its credibility by the remarkable coincidence between his recollection of the events described in his confessions and the recollection of the victims. The fact that Mr Cooke maintained his guilt in relation to the death of Ms Anderson in the "gallows" confession on 26 October 1964 shortly before he was hanged takes on some additional significance against the background of the other matters to which I have referred.

All of this material needs to be considered against the background of Mr Button's youth at the time, his actions in taking Ms Anderson's still living body immediately to the nearby doctor, his persistent denials when questioned and his confession only after several hours in police custody all combine to lead me to the conclusion that the verdict must be regarded as unsafe and unsatisfactory on the ground that there has been a miscarriage of justice.
For these reasons I would allow the appeal and quash the conviction for manslaughter. There could not and should not be an order for a re‑trial.
WALLWORK J: I agree with the reasons for judgment of the Chief Justice and with the conclusions his Honour has reached except with respect to the admission into evidence of the confessions made by Mr Cooke. It follows that I also would allow the appeal and quash the conviction, with an order that there be no retrial.
I set out below my comments with respect to the confessions of Mr Cooke.
In Bannon v The Queen (1995) 185 CLR 1 Brennan CJ said that Holmes J's criticism of the rule in Sussex Peerage case had struck a responsive cord in the Supreme Court of Canada. Having discussed some of the circumstances relevant to the decision in Bannon, Brennan CJ said at p 10:
"It is therefore unnecessary now to decide whether, and subject to what conditions, the absolute exclusory rule in the Sussex Peerage Case should be discarded."
His Honour said at p 12:

"If the exception of declarations against penal interest were to be accepted as part of our law, there may be a question whether the principles approved in Demeter are appropriate or whether some other (possibly less restrictive) principle should be adopted, bringing our law closer to the Canadian law. I do not suggest that that is the desirable development. Rather it seems to me that any revision of the approach hitherto taken in this country would require a general review of the hearsay rule, its history, purpose and operation. But that must be a question for another day."

Dawson, Toohey and Gummow JJ left open the question as to whether in certain cases, the relevant law in Australia should follow the decisions in Canada and the United States which have extended the exceptions to the rule against hearsay to third party confessions - p 28, "Conclusion".
In Bannon Deane J said he was in general agreement with what Dawson, Toohey and Gummow JJ had said about the appellant's submissions supporting either a broad flexible relaxation of the hearsay rule to allow evidence of inherently reliable hearsay statements at the instance of an accused or a widening of the exception from the hearsay rules of some statements made against interest.
In Bannon McHugh J said that it was not necessary in that decision to decide whether the hearsay rule is subject to an exception corresponding with that formulated by Mason CJ in Walton v The Queen (1989) 166 CLR 283 at 293.
At p 32 McHugh J said:
"Even if such an exception exists, the statements of Calder (in Bannon) do not meet the required conditions of reliability and probative value"
His Honour said that it did not follow that:
"…because the admissions in those statements were reliable, the statements have sufficient reliability and probative value, to prove an implied assertion that Calder alone was responsible for the murders" - p 33.
McHugh J discussed the history of the relevant law as it has been applied in the Canadian and the United States decisions. Importantly, when discussing the rules applicable to the admission of such evidence, his Honour said at p 37:
"Like Canada, United States jurisdictions that admit declarations against penal interest impose conditions on admissibility. While these conditions vary, they nearly all contain a requirement of reliability, a requirement which is not satisfied merely because the declaration is against penal interest. Examples of these conditions are:
(a)the statement against penal interest must be corroborated by 'substantial' independent evidence (eg in Chambers v Mississippi (1973) 410 US 284 there was 'considerable assurance of … reliability' (at 300) because the confessions were made spontaneously, there was corroborative evidence and they were unquestionable against interest. In State v Larsen (1966) 415 P 2nd Ed 685 there needed to be 'substantial evidence which tends to show clearly that the declarant is in fact the person guilty of the crime for which the accused is on trial');
(b)the declarant must be aware when making the statement that it is presently against his or her penal interest (see, eg, People v Riccardi (1972) 340 NYS 2d 996);
(c)the statement must be inconsistent with the guilt of the accused …"
In one of the leading Canadian cases, R v Chahley 1992 72 CCC (3d) 193,where on a charge of murder, the accused sought to adduce evidence from the deceased's girlfriend that a few days before his death the deceased had said that a black man had pulled a knife on him and he could not go down town for a while, the trial judge held that this was inadmissible hearsay and excluded it.
On appeal the British Columbia Court of Appeal held that the evidence should not have been excluded. When discussing the question of "necessity and reliability" the Court of Appeal said that the test of necessity was met because the declarant was dead and there was no evidence suggesting any other source of admissible proof for the event described in the deceased's statement. The Court also held that the statement was made under sufficiently reliable circumstances as to meet the test of reliability or trust-worthiness. It held that the statements attributed to the deceased were not made in his favour, were made before the dispute or litigation, and the deceased had a peculiar means of knowledge. It held that the issue was not the reliability of the witness who testifies as to the statement, but the trustworthiness of the out of court statement.
In Bannon McHugh J said that the test laid down by the Court in Chahley had been applied in subsequent cases in Canada. His Honour said it was unnecessary in Bannon to determine whether the principle of necessity and reliability as developed in Canada should be adopted in this country and that whether or not the principle should be adopted in Australia is a decision that should only be made when it is necessary to do so, to dispose of a case before the Court.
His Honour said that adoption of the Canadian principle would undoubtedly have beneficial effects on the law of evidence and that it would permit the admissibility of statements which common experience indicates can be acted on safely but which are now excluded by the rigid application of the hearsay rule. He recognised that there were reasons for not relaxing the rule, including that it would result in some cases in some uncertainty and additional expense in preparing cases, since it could not be known until the ruling whether the evidence was admissible and whether evidence in rebuttal was required.
His Honour noted that to some extent the rule has already been relaxed on the recommendation of the Australian Law Reform Commission by the enactment by the Federal Parliament of the Evidence Act 1995 (Cth), which provides in s 65 that third party confessions exculpatory of the accused are admissible provided certain preconditions are met; also that New South Wales has adopted comparable legislation. His Honour said that the recent legislative activity in the field provides a sound reason for the High Court proceeding cautiously when invited to alter the settled rule against hearsay evidence and that if any change is to come about as a result of judicial law making, it should only occur after the Court had had the benefit of full argument from counsel representing the States and the Commonwealth.
The judgment which is often referred to when the question of relaxing the hearsay rule is being discussed, is the dissenting judgment of the great jurist Justice Oliver Wendell Holmes in Donnelly v United States (1913) 228 US 243. In Donnelly, Lurton and Hughes JJ concurred in Justice Holmes' dissent.
Justice Holmes said:
"The rules of evidence in the main are based on experience, logic, and commonsense, less hampered by history than some other parts of the substantive law. There is no decision by this Court against the admissibility of such a confession; the English cases since the separation of the two countries do not bind us; the exception to the hearsay rule in the case of declarations against interest is well known; no other statement is so much against interest as a confession of murder; it is far more calculated to convince than dying declarations, which would be let in to hang a man (Mattox v The United States 146 US 140, 36Led 917, 13 Sup Ct Ct Rep 50); and when we surround the accused with so many safeguards, some of which seem to me excessive, I think we ought to give him the benefit of a fact that, if proved, commonly would have much weight. The history of the law and the arguments against the English doctrine are so well and fully stated by Mr Wigmore that there is no need to set them forth at greater length - 2 Wigmore: 1476, 1477."
In my view the words of Justice Holmes are as valid today as they were in 1913. They carry the same message as the words of Mason CJ in Walton at 293 when the Chief Justice said:
"The hearsay rule should not be applied inflexibly. When the dangers which the rule seeks to prevent are not present or are negligible in the circumstances of a given case there is no basis for a strict application of the rule. Equally, where in the view of the trial judge those dangers are outweighed by other aspects of the case lending reliability and probative value to the impugned evidence, the judge should not then exclude the evidence by a rigid and technical application of the rule against hearsay. It must be borne in mind that the dangers against which the rule is directed are often very considerable, as evidenced by the need for the rule itself. But especially in the field of implied assertions there will be occasions upon which circumstances will combine to render evidence sufficiently reliable for it to be placed before the jury for consideration and evaluation of the weight which should be placed upon it, notwithstanding that in strict terms it would be regarded as inadmissible hearsay."
The situation with respect to Mr Cooke's confessions is complicated by the fact that he had already given evidence to the Court of Criminal Appeal prior to his death on the 26 October 1964. Just prior to Mr Cooke's death he told the Reverend George Jenkins, who is also now

deceased, on two occasions that he was responsible for Ms Anderson's death. The first occasion was on the 23 October 1964 and the second was about 15 minutes before Mr Cooke died on the 26 October 1964. Those statements to the Reverend Jenkins were consistent with Mr Cooke's evidence before the Court of Criminal Appeal. Mr Cooke had also said the same thing to the Reverend Sullivan on the 31 October 1963 at Fremantle Police Headquarters and to Mrs Cooke on various occasions following his arrest. Mr Cooke also told Prison Warder Seiler the same thing on the 8 January 1964 and Mr Thorpe JP, the Deputy Superintendent of Fremantle Prison, on the 2 December 1963. It was the statement which Mr Cooke made to Mr Thorpe and oral evidence concerning it by Mr Cooke, which was discussed by the Court of Criminal Appeal when the present appellant applied for an extension of time within which to appeal before Mr Cooke died.

After Mr Cooke died on the 26 October 1964 the Reverend George Jenkins prepared a statement concerning what Mr Cooke had told him. That statement was dated 12 November 1964.
This Court is concerned with the question of whether or not Mr Button was the driver of the vehicle which struck Ms Anderson. In my view, it is significant that although the earlier Court of Criminal Appeal did not accept what Mr Cooke had said, he continued to insist that he had been responsible for Ms Anderson's death up until a few minutes before he died. Had he later recanted what he had told the Court of Criminal Appeal, that also in my view, would have been admissible before this Court on this appeal.
In my opinion, all the evidence of what Mr Cooke said is relevant when this Court is considering Mr Button's responsibility, because not only did Mr Cooke say in effect that Mr Button was not responsible for Ms Anderson's injuries and that Mr Cooke was, but Mr Cooke's statements could throw light on the other expert evidence which has been discussed in detail by the learned Chief Justice in his reasons for judgment. That evidence concerns the damage to Mr Button's vehicle.
In my view, the fact that Mr Cooke ran down other women on roads in the metropolitan area, is another reason why his statements should be admitted into evidence on this appeal.
OWEN J: I have had the advantage of reading, in draft form, the reasons for judgment about to be published by Malcolm CJ and Wallwork J. I agree with their Honours that the appeal should be allowed and the

conviction quashed. In the circumstances of this case, no question of a retrial arises.

Save for what I say in the next paragraph, I agree with the reasons for decision of the Chief Justice. It would serve no useful purpose if I were to set out in detail the reasoning process which I have adopted in coming to my conclusion because I would only be repeating what his Honour has said. Instead, I will mention one matter and then give a very brief summary of the way in which I have seen the issues presented to the Court.
Both Malcolm CJ and Wallwork J have relied, to a greater or lesser extent, on a general exception to the hearsay rule based on the relevance, inherent reliability and probative value of evidence of out‑of‑court statements made by Eric Edgar Cooke. There is, in my respectful view, much to be said for the proposition that we ought to recognise the existence of such an exception. This has been done in the United States and in Canada in decisions to which their Honours have referred. The issue was raised in Bannon v The Queen (1995) 185 CLR 1 but the majority of the Court did not find it necessary to answer the question. Brennan CJ, at pars 5 and 6, analysed earlier authorities such as Vocisano v Vocisano (1974) 130 CLR, Walton v The Queen (1989) 166 CLR 283, R v Benz (1989) 168 CLR 110 and Pollitt v The Queen (1992) 174 CLR 558 and concluded that Australian law did not accommodate an exception of the type being advocated. In my view, that is the state of the law as it presently stands in Australia.
Nonetheless, I have come to the view that the conviction cannot stand. I will now say why.
The appellant was tried and convicted by a jury. It is, I think, difficult to criticise the decision reached by the jury on the evidence that was presented to them. There were two bodies of evidence that must have been in the forefront of the jurys' deliberations. First, in the hours following Ms Anderson's death the appellant confessed to the killing. He later recanted and the veracity of the confession was squarely in issue at trial. The second body of evidence related to damage to the appellant’s motor vehicle. There was evidence that the vehicle had been in an accident in the days prior to Ms Anderson's death. However, there was also evidence to suggest there was more damage to the left‑hand side of the vehicle than had been apparent as a result of the earlier accident. Similarly, there was evidence that there had been no damage to the bonnet prior to 9 February 1963 but damage of that nature had been observed on 9 and 10 February 1963. Finally, there was evidence of some blood stains (smears rather than drops) on the left mudguard and near the left headlamp of the vehicle.
After the trial, evidence became available that Mr Cooke had confessed to the killing of Ms Anderson. He had stolen a car (not the appellant's vehicle) and had run her down as she walked along the street. In 1964 the Court of Criminal Appeal heard the appellant’s appeal based on fresh evidence. Mr Cooke gave oral evidence to the Court in which he said that he was responsible for Ms Anderson's death. The members of the Court firmly rejected Mr Cooke's testimony and affirmed the appellant's conviction.
In my view, it must have been central to the prosecution case that the appellant's vehicle was involved in the accident which resulted in Ms Anderson's death. I also think that unless the jury were satisfied on that issue it is highly unlikely that they would have convicted the appellant. I say this because the appellant's confession to police officers involved the concession that he had run her down using his vehicle. If the jury were not able to conclude that the appellant's vehicle had been the instrument that struck Ms Anderson it is likely they would have entertained a reasonable doubt about the confession and therefore about the appellant's guilt.
It is in this context that the evidence presented to this Court by Haight and Condren is critical. The Chief Justice has analysed Haight's evidence in great detail and I agree entirely with what is there said. In my view, Haight's testimony was compelling. It was, in summary, to the effect that the damage to the appellant's vehicle (as shown in the photographs taken by police but not tendered at the trial because they tended to exaggerate the damage by their toning) was inconsistent with the vehicle having struck a pedestrian in such a manner as to cause the injuries suffered by Ms Anderson. Haight also testified that the absence of flesh transfer, fabric transfer and remnants of hair and skin was very significant. This evidence is supported to some extent by that of Condren. He had examined the vehicle at the time (1963) and had concluded it was not involved in a pedestrian impact because of the absence of blood, fabric or human hair. It turns out that he was wrong about the absence of blood but his testimony lends weight to Haight's conclusions concerning the other substances.
Science does not stand still and, in an appropriate case, courts are entitled to take notice of such advances: see, for example, McIlkenny v The Queen (1991) 93 Cr App R 287 at 295. This Court has had the benefit of evidence concerning the results of more advanced crash testing techniques than was available at the time of the trial or the 1964 appellate proceedings. In my opinion, had Haight's evidence and that of Condren been presented to the jury or to the members of the Court of Criminal Appeal there is a significant possibility that the relevant tribunal would have acquitted the appellant of the charge. On this basis alone, it seems to me that interference with the verdict is justified.

In the light of what I have just said, what follows is little more than a makeweight but I will mention it anyway. It relates to what has been referred to as the similar fact evidence, that is, evidence of other "hit and run incidents" occurring at around the same time and to which Mr Cooke had confessed. It must be the case, as the Chief Justice has said, that an accused can defend a criminal charge by seeking to prove that the offence was committed by another person. He or she can do so by leading any admissible evidence tending to prove that the offence was committed by another person. This would include similar fact evidence.
Here, Mr Cooke was disbelieved by the members of the Court of Criminal Appeal. The advantage that the earlier court had in seeing and hearing Mr Cooke cannot be underestimated. In any event, the considered and strongly expressed views of the judicial officers concerned must be treated with the utmost respect. Nonetheless, if a later court is presented with evidence which was not available to the earlier tribunal, it must not shrink from the task of assessing the material and reaching a conclusion that is in accord with justice: compare, for example McIlkenny v Chief Constable of West Midlands Police Force [1980] 2 All ER 227 at 239-240 and the decision in McIlkenny v The Queen.
Mr Cooke made his confession to the killing of Ms Anderson in court under oath. No question of hearsay arises in relation to that material. It is difficult to construe the position taken by the Crown in the 1964 appeal as other than an allegation that Mr Cooke had fabricated his confession to Ms Anderson's killing. Quite apart from the general proposition that an accused can, by admissible evidence, seek to establish that someone else committed the crime, he or she would, it seems to me, be able to call evidence to rebut an allegation of fabrication. There is, I acknowledge, a very fine line between evidence called purely to bolster credibility and evidence which goes more directly to a fact in issue. In the very peculiar circumstances of this case I think the similar fact evidence would fall into the latter category. Once again, the Chief Justice has set out a very detailed and careful analysis of the evidence relating to the other hit and run incidents. I agree with that analysis and with the conclusion that it has all of the necessary attributes of similar fact evidence.
There is doubt as to the use to which the so called statement of agreed facts was put at the 1964 appeal. In my view, evidence could have been adduced from Mr Cooke as to his involvement in these incidents. In a sense it was, through the statement of agreed facts. That, in my view, is sufficient to link Mr Cooke to the incidents. If the whole story in relation to these incidents had been before the 1964 court, their Honours might well have taken a different view of Cooke's credibility, at least to the extent that it might have resulted in a retrial. It would then have been for a jury to assess the necessary questions in determining whether the appellant had committed the crime of which he was charged.
As it is now not possible to have a retrial, the appropriate course is simply to quash the conviction.