The Dunford report on the Andrew Mallard case for the WA Corruption and Crime Commission shows that the suppression of evidence helpful to the defence was not just the usual police stunt, but had also been adopted by the prosecutor.
On May 23, 1994 Pamela Lawrence was brutally murdered at her jewellery shop, Flora Metallica at Mosman Park, Perth.
In the process of the investigation Mallard became a suspect. He was interviewed a number of times by police, on one occasion for eight hours without being videotaped, on the day he had been discharged from the Graylands Psychiatric Hospital.
His answers were confusing and contradictory. He confessed and recanted. He also made claims about the murder and the premises that were plainly wrong.
Mallard (seen here with his sister and mother) had been diagnosed as suffering a hypo-manic phase of a bipolar mood disorder.
He had no fixed address and had been leading a “marginal” life.
His trial, conviction, appeals and now the CCC report have made Mallard a cause celebre. He served 12-years in jail for what has now been shown to be a trumped-up case.
Essentially the police wanted the descriptions of what witness saw to more closely respond to their man in the frame – Andrew Mallard. To achieve that the final witness statements that went to the DPP and the defence were doctored and misleading.
The original versions of the statements were withheld by the police.
A number of instances were cited in the Dunford report.
- Thirteen year old schoolgirl Katherine Barsden described to the police that she saw a man in the victim’s jewellery shop at around the time of the murder. She said he was wearing a blue, green and cream gypsy-type scarf on his head, with an orange border. She was shown Mallard’s cap and in the final version of her statement said that the cap was of the same colours as the man she saw in the shop. Barsden failed to identify Mallard in a selection of photos she was shown.
- Michelle Engelhardt, in whose flat Mallard had been staying, said in her original statement to police that when she returned to her flat on the day of the murder Mallard’s cap was hanging on a hook behind the door and that when he arrived home he was not wearing any cap or headgear. In her subsequent statement all reference to the cap was omitted and the description of the cap was changed to better fit the description given by Ms Barsden. In her revised version Engelhardt was not sure whether Mallard was wearing a cap when he came home.
- Three other witnesses in the area at or about the time of the murder had their statements changed so that their descriptions more closely corresponded with that of Ms Barsden’s.
In the original statements by the witnesses the person described could not have been Andrew Mallard, but in the final version the case against him was strengthened.
John Dunford (seen here with counsel assisting Jeremy Gormly and Peter Quinlan) found that the changes were brought about by “persistent and repeated questioning and/or by deliberately raising doubts in the witnesses’ minds until they became confused, uncertain or possibly open to suggestion”.
This constituted misconduct on the parts of Detective Sergeants Malcolm Shervill and David Caporn (now both Assistant Commissioners who have been stood down).
There were other distortions.
In one of the interviews with police Mallard lapsed into a “third-person” version of what he thought happened at the murder scene.
He said he believed an “evil person” had hit Mrs Lawrence with a wrench and had thrown it in the river.
He drew a picture of a wrench for the police.
He also suggested that the clothes of the murderer had been washed in the Swan River in order to remove blood stains. There was no trace of blood on Mallard or his clothes.
The police had no murder weapon and the only description they had was the one provided by the suspect.
Tests were conducted by striking a pig’s head (not this one) with a copper anode, a wrench and and iron bar. None of these objects produced a similar pattern of injuries to the ones sustained by Mrs Lawrence.
Tests were also conducted on Mallard’s clothes to see whether they contained traces of salt water. The forensic chemist Bernard Lynch determined they didn’t.
What did the coppers do with this unhelpful information?
Det Sgt Shervill requested Lynch prepare another report leaving out any reference to the salt water testing. He obliged.
After Mallard was arrested and charged with wilful murder on July 19, 1994 Shervill prepared a “comprehensive summary of facts” for the DPP.
It stated that the murder weapon had not been identified, that the pig’s head testing had excluded the anode and added:
“During the experiment, a crescent wrench was also tested, which inflicted dissimilar wounds to those sustained by Mrs Lawrence.”
In support of the “confessional” material the summary of facts contained a list of “12 things only the killer would know”.
It made no reference to the numerous errors or contradictions in Mallard’s interviews.
The final, but not the original, versions of the witnesses’ statements and expert reports were attached, but there were no reports relating to the test with the pig’s head.
The case was allocated to senior prosecutor Kenneth Bates.
At the preliminary hearing Bates referred throughout to the murder weapon as a “metal object”.
Mallard’s sketch (seen here) was not shown to Dr Clive Cooke, the forensic pathologist on the case. Cooke was not asked any questions about whether a wrench could have caused Mrs Lawrence’s injuries.
Applications to have Mallard’s interviews with the police excluded and for senior counsel to appear for the defendant were rejected.
At the trial, which commenced on November 5, 1995, Bates opened and conducted the case on the basis that the murder weapon was a wrench.
He also relied on the final versions of the witnesses’ statements, although he did not know that the earlier versions of their statements had been fudged.
Again Bates failed to ask Cooke any questions about a wrench and did not put the drawing of the wrench to the pathologist.
Dunford said that this was a “fundamental omission” and he had trouble accepting that it could be the result of an accident or oversight.
If Mallard could not identify the murder weapon, it constituted a flaw in the reliability of his so-called confessions.
Bates had been informed of the pig’s head testing of the wrench in the police comprehensive summary of facts.
The CCC said it was Bates’ “duty to disclose this fact to the defence”. Failure to do so constituted misconduct.
The prosecutor said he had read about the pig’s head test in the comprehensive summary, but “subsequently overlooked it”.
Mallard was convicted and received a life sentence with a minimum of 20 years.
An appeal to the Court of Criminal Appeal and a special leave application to the High Court were unsuccessful.
Prominent Perth journalist Colleen Egan was by now fighting in Andrew Mallard’s corner. She sought the aid of John Quigley, a Labor MP and solicitor.
After reading the transcript of the trial Quigley was convinced essential material had not been disclosed and the trial had been unfair.
Quigley approached the then Attorney General Jim McGinty, who arranged for the MP to have access to the DPP’s files.
Bates (pic) was asked to prepare the files for inspection and in doing so re-read the comprehensive summary of facts.
He drew to the attention of the DPP, Robert Cock, the reference to the pig’s head testing of the wrench which showed it could not be the murder weapon.
Bates said this evidence had been “inadvertently overlooked”.
A petition was referred to the Court of Criminal Appeal.
However, this clemency appeal was dismissed with reasoning subsequently criticised trenchantly by the High Court.
Cock opposed the appeal, even though by then he knew evidence had been withheld at the trial.
The criminal appeal judges (Parker, Wheeler and Roberts-Smith) were unmoved by the pig’s head test that showed the murder weapon was not a wrench.
They were not persuaded by the salt water test on Mallard’s clothes, saying that some of his clothes had been washed in fresh water prior to testing.
They rejected evidence about Mallard’s mental health because it wasn’t “fresh”.
Polygraph tests which were favourable to Mallard also were ruled inadmissible.
Finally, the appeal court described the defence’s closing submissions that the police deliberately withheld evidence as “improper”.
The High Court was not quite so understanding about the prosecution’s lapses.
In November 2005, Gummow, Hayne, Callinan, Heydon and separately Kirby, all agreed there had been a miscarriage of justice. They quashed Mallard’s conviction and ordered a new trial.
In the process they set the WA CCA right about its wayward approach:
“It was not for the Court of Criminal Appeal to seek out possibilities, obvious or otherwise, to explain away troublesome inconsistencies which an accused has been denied an opportunity to explore and exploit forensically.”
They said that the pig’s head test with the wrench was capable of “explosively” discrediting the prosecution case.
“The Court of Criminal Appeal wrongly declined to entertain a submission that most or all of the matters said by the respondent to be uniquely within the murderer’s knowledge, were not objectively true, or were contradicted by other matters, or were equivocal, or were patently false: and, in consequence, for those and other reasons, including the appellants denial that he had said what was attributed to him about them, the so-called confessions were unreliable.”
Justice Kevin Parker moved onto the International Criminal Tribunal for the former Yugoslavia. Justice Len Roberts-Smith is now the head of the WA Corruption and Crime Commission and Justice Christine Wheeler is still a WA appeal judge.
Dr Jamie Edelman, who assisted Malcolm McCusker (pic) in the appeals, is now a fellow in law at Keble College, Oxford.
Clutz acted pro-bono for Mallard.
As well as finding that Bates engaged in misconduct in failing to disclose the pig’s head test of the wrench the CCC also suggested that Mallard give consideration to raising a complaint with the Legal Practitioners Complaints Committee regarding the prosecutor’s conduct of the trial.
Interviews with suspects that have not been video recorded are no longer admissible in evidence in WA.
In view of this DPP Cock decided on February 20, 2006 to discontinue the prosecution and Mallard was released from prison.
Following that a cold case review was conducted by the police.
It found that the person most likely to have killed Mrs Lawrence was Simon Rochford, then in jail for murdering his girlfriend, Brigitta Dickens.
Ms Dickens was killed seven weeks after Mrs Lawrence. The injuries sustained by the victims in each case were very similiar.
On May 18, 2006 Rochford was named on the evening TV news as the new suspect in the Lawrence case. The following morning he was found dead in his cell, apparently from self-inflicted wounds.