Casus Perplexus? – Another Legal Conundrum for WA in Clarke vs State

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Casus Perplexus? – Another Legal Conundrum for WA in Clarke vs State

First up, the Latin. In proper legal context, casus perplexus is translated as: a factual situation (a case) which poses an insoluble legal conundrum (Zimmermann Obligations 721f).

The Clarke brothers were wrongly accused and convicted for murder… twice. A murder conviction implies that the accused were found to have caused the unlawful death of Mr Peter Davis, that “the act” they committed significantly or substantially caused the death (causation); and that they intended the death (intention).

These findings must have been based on evidence which was supposed to be proven beyond reasonable doubt. That means, that there was no other reasonable innocent explanation open to the jury. In a circumstantial case such as the Clarke’s, that is, in cases in which there is no direct evidence (such as a used weapon, witnesses, CCTV, confessions, etc.), but only loose clues, all the strands of weak evidential facts must be considered in their totality, in order to infer from them the causation and intention necessary for the murder conviction.

In circumstantial cases then, since there is no direct evidence, inferences always assume an assessment of possibilities and probabilities; of weighing alternative hypotheses logically, scientifically and legally to the highest level of proof. If reasonable competing hypotheses for innocence cannot be ruled out as impossible, a guilty verdict cannot follow. In the case of murder convictions, that assessment and level of proof has to be both on matters of causation, intention and obviously identity: not only was it the intentional act that intentionally killed the innocent victim, but do we have the right guy?

Now, a brief case-history. A dead man was found laying in the back of his own wagon partially covered in black plastic, in the rear carpark of a busy Perth city motel just after midnight on May 31, 2011. The accused brothers, Ambrose and Xavier Clarke, were convicted for life in 2013 for murdering Peter Davis. The trial lasted 7 weeks. The trial judge, J Hall, a former prosecutor himself, disagreed with the prosecutor in his final sentencing remarks. He stated that in his view the plan to kill was formed at the Malaga crime site in the outskirts of suburban Perth, WA, and only after having caused Mr Davis’ permanent brain damage by “somehow” depriving him of oxygen and leaving him in a perilous state without seeking medical attention (TT4182, paragraph 4), then driving his car to the Great Eastern Motor Lodge and leaving him to die in the rear carpark. In other words, he disagreed that this was a premeditated murder. There was no long term plan. The intention, in his view, based on his experience and understanding of the evidence, was formed in the last possible moment, after the alleged brain injury, by leaving him to die, as if Mr Davis’ condition must have been so evidently bad that it was logical he would only but die.

The Appeal court in 2018 agreed with J Hall’s findings on intention, BUT they found that the State’s neuropathologist from PathWest, Dr Vicky Fabian, had mislead the court. They only agreed with J Hall in that there was reasonable doubt as to the prosecution-alleged “planning” of the murder, a month or so prior to the death. The three appellant judges agreed with the medical experts that testified during the appeal, that Mr Davis had not been deprived of oxygen, had not suffered from brain damage, had not suffered a long protracted painful death; instead, that Mr Davis had suffered a sudden cardiac death due to a severe pre-existing heart condition. The conviction was quashed and eventually the Clarke brothers were released from jail on bail as they awaited an ordered retrial for murder. Was the order correct?

The 2019 retrial sat for 17 weeks. The prosecution case had a problem with their causation argument from the very start, as alerted by J Corboy to the prosecutor during the bail application in early 2018. With Dr Fabian’s trial neuropathology evidence shamefully discredited, a cardiac death caused by a severe pre-existing condition, doubts as to motive, premeditation and even the identity of those who had in fact perpetrated the concealment of the body; a much wiser defence team now led in counterattack.

Surprisingly, the prosecution case followed pretty much along the same lines as to the 2013 trial. However, the defence had disrupted the narrative, armed with several favourable expert reports, a solid factually-based defence case theory and even police witnesses testifying in support of the defence case. The 2013 trial had been a prosecution monologue; there had only been a limp attempt by the defence to cast doubt but without doing any heavy lifting: no experts called, no research, no alternative case theory, no character witnesses… in fact, for Xavier Clarke, not even a single witness called. This time it was very different.

Medical experts, called by the prosecution and the defence, both agreed during the 2019 trial that it was impossible to determine the time of death because no tests had been carried out to determine it. It was impossible to specify what had caused the superficial injuries identified during the postmortem exam. Experts agreed the mild injuries were consistent with Mr Davis having collapsed to the ground following his heart failure, and by attempts to lift him back up by the forearms. There were no internal injuries, no bone fissures, no teeth loosened or displaced, nothing that was in any way life threatening or that proved there had been a physical assault intended to cause death.

Immediately following the closing of the defence case and prior to summations and the judge’s instructions to the jury, something crucial happened. J Corboy alerted the prosecutor that intention to kill could not be inferred from the injuries sustained by Mr Davis. This echoed a prior “suggestion” by the judge: to look at two similar cases originally intended for murder convictions which had resulted “in accidental death following assault” judgements – one of these, Carkeet, presided by J Hall himself.

There were only two options open to the prosecution from which to infer intention to kill: either or both from the planning and from the sustained injuries. J Corboy had taken out the latter. But what about J Hall’s finding upheld by the [higher] Appeal Court judges on the former?

If there were only two possibilities open from which to infer intention, i.e. the planning or the injuries, and the judges independently had ruled there was reasonable doubt in both factors – furthermore, J Corboy said at the adjourned sentencing hearing in early September (2019), that there was “NO WAY” to infer intention from the injuries – that meant that there was an a priori impossibility to infer intention simpliciter – full stop.

Without intention, there can be no murder conviction, worse case scenario is the lower but still very serious charge of manslaughter.

However, nobody raised the alarms from the bar table. The trial proceeded and the jury, to the surprise of everyone who had followed the trial attentively, came back with a guilty verdict. The jury had inferred intention to kill as put by the prosecution, which was contrary to what J Hall and the Appeal Court had found, and even contrary to J Corboy’s directions on the matter. In his summations J Corboy explained that if there was any reasonable alternative innocent explanations to the activities from which “planning” was being inferred, then they must acquit. He followed by volunteering some of the reasonable alternatives open on the expert evidence…

Here lies the problematic conundrum. J Corboy has to uphold the jury’s verdict. But assuming all the judges are right in their findings regarding the inference of intention issue, it follows that the jury’s inference was flawed. It should not have been open to the jury to make that inference. J Corboy now has to impose a sentence which by the book should be harsher than that at the first trial even though the case against the brothers had been substantially and fundamentally weakened. In 2013 there was no premeditation, consequently lowering the harshness of the punishment; but in 2019 since the inference of intention was from the planning, it means it now should become premeditated murder, despite the mounting expert evidence supporting the brothers’ innocence.

So the 2013 trial, with an almost non-existent defence, no real attempts to investigate the case or propose any other explanations as to what had happened to Mr Davis or to the accused, may end up being lighter in terms of imposed punishment than the 2019 trial, after the repeated proven fundamental problems with causation, intention and identity.

In the age-old philosophic wisdom of Aquinas, “a small error in the beginning becomes huge in the end”. The Clarke’s retrial should have never been on murder. At worst it should have been averted when J Corboy cautioned the prosecution not to lead on the inference of intention from the nature and cause of the injuries. Should the defence have called for a No Case To Answer on the murder charge at that stage? Failing that, should the judge have cautioned both parties of the pending problems ahead and prompt the defence to argue for a No Case? Could a lay jury realise the problematic subtext in the opposing narratives they were to consider? Was it fair for the jury to be deprived the knowledge of the previous trial and Appeal judges’ findings? Should the retrial have been heard by judge alone?

The Clarke brothers’ have won their first Appeal on causation in 2018 at a legal cost of almost $2 million. No new evidence in support of the murder conviction was introduced at retrial by the prosecutor and yet it is envisaged that on September 25th J Corboy’s sentencing will be a Life term with a higher non-parole minimum term than that in 2013. The Clarke brothers will be forced to appeal again at a similar cost and for similar reasons. Ambrose Clarke’s family has applied for assistance from a charitable non-profit organisation, Miscarriage Of Justice Support Fund Inc. Here is the link to the donation campaign:

Estimates in Australia, US and UK say that up to 10% of those incarcerated for serious crimes are innocent… It is more likely to be wrongly accused of a serious crime than winning 4th division Australian Lotto. Miscarriages of justice will continue relentlessly without serious reforms to the legal system that allows such errors to occur… What if it happened to you?

Broken Justice Documentary Film

Adrian Bertino-Clarke Bsc ph


Unison Pictures Pty Ltd.

/Public Release.