The WA Police Commissioner said he was “thoroughly disgusted” with the outcome of the six-week trial that saw three men acquitted of assault against police officers – including Constable Matthew Butcher.
Karl O’Callaghan said he had already received two resignations from rank-and-file police officers this morning in protest of the not-guilty verdicts – which saw 29-year-old Barry McLeod cleared of striking Constable Butcher from behind with what prosecutors described during the marathon trial as a “flying headbutt”.
Constable Butcher remains paralysed down his left side from the attack and is often wheelchair-bound.
The incident occurs after the 25 second mark of the video.
Today, the Commissioner vented his disappointment that no-one would be held accountable for that attack.
“I’m thoroughly disgusted with the outcome and there wouldn’t be a police officer in WA that is not disgusted with the outcome also,” he said.
“An officer was brutally assaulted with his back turned and apparently no one is to blame.”
The Director of Public Prosecutions has taken a swipe at the jury that was selected for the Matthew Butcher assault trial, claiming it failed to properly represent the breadth of the community.
Robert Cock has also defended the resourcing and staff of the DPP in unsuccessfully prosecuting Barry, Scott and Robert McLeod, saying prosecutor Simon Stone was “exceedingly competent” and more than equal to the high-priced Melbourne silks who he went up against.
Speaking a few weeks after a jury acquitted the McLeods over their role in a brawl outside a Joondalup tavern last year which left Constable Matthew Butcher seriously injured, Mr Cock said he believed the lack of a “properly reflective” jury caused the controversial verdicts.
This, he said, was a result of so many people pulling out of serving on the jury in the marathon trial.
“I have the strong view that it was the absence of a properly reflective jury (properly reflective as in community attitudes) that caused that verdict,” Mr Cock said.
“I have views as to how we lost it, and I think it is entirely a consequence really of the jury. Juries make these decisions, and we can’t make up the jury the way we’d like.”
Response from the DPP:
As you may be aware, the law in Western Australia provides that a jury may not bring in a verdict of guilty unless they are satisfied beyond a reasonable doubt of all the elements of the offence of which the accused person has been charged. This standard of proof is the highest standard of proof known to our law and is onerous. The law in Western Australia also provides that, where a defence is raised by an accused person, the prosecution must negate that defence. That is, the prosecution must prove that the defence has no application in the case, also to the standard of proof beyond a reasonable doubt. However, the jury in WA does not give reasons for the verdict.
Another feature of WA law is that verdicts of not guilty, when delivered by a jury, are generally not subject to any appellate review. That is, even if the prosecution is dissatisfied with the outcome or, even more fundamentally, if we believe the outcome has been tainted by some error in the trial process, there is no legal way in which the verdict can be challenged subsequently. A verdict of not guilty, when delivered by a jury, is generally not subject to any appeal. The only exception is if the verdict has been delivered on a charge for which the maximum penalty is 14 years or more, but only on the grounds that before or during a trial the Judge made an error of fact or law in relation to the charge. Only one of the charges before the Court in this case carried a statutory penalty which includes imprisonment for 14 years or more. That was the principal charge, which only Barry McLeod faced, of assaulting Constable Butcher and endangering his life.
Following the acquittal, my Office conducted a thorough review to determine whether there was any basis to appeal the decision.
It was determined that there was no basis upon which it could be realistically asserted that the Judge made an error of fact or law in relation to the charge of assaulting Constable Butcher and endangering his life. That being so, despite the strength of the community disappointment with the outcome in this case, the law does not allow me to, nor does it provide me any means by which I can, challenge the jury verdict or conduct a new trial.
Juries are constituted by members of the public, selected at random. It is their collective view which determines the conviction or acquittal of people prosecuted for serious offences. Jury outcomes are dependent upon people of good character and strong will maintaining their integrity and honesty in the jury room, evaluating the evidence according to the Judge’s direction, and bringing a true verdict on that evidence. As long as our juries are constituted by fair-minded people, it is my expectation that justice will be done. To this end, I am heartened by the Attorney General’s decision to amend the legislation to reduce the number of people who avoid jury service. So long as juries are properly reflective of mainstream Australians, I think we have every reason to be optimistic about the future of our criminal justice system.
Yours sincerely,
Joseph McGrath
Director of Public Prosecutions