The senior counsel assisting the Corruption and Crime Commission’s Mallard inquiry, Jeremy Gormly SC (pic), must be quietly disappointed with last week’s report.
After investigating the wrongful conviction saga for nearly two years, the Sydney barrister argued last November that 30 findings should be considered against a wide range of public officers.
Only eight “opinions” of misconduct were made by Commissioner John Dunford QC, who bent over backwards to be fair to the officers and took a conservative approach to his final report.
Rumour has it that Commissioner Dunford’s draft adverse findings, sent to the officers in June, were far more damning than the October 7 report.
As he was entitled to do, Dunford accepted lengthy and detailed submissions that the intended findings could not be fairly made under the CCC Act.
However, some of the original allegations submitted by Gormly still hang like a cloud over the heads of the police investigation team.
The most sinister accusation – that jewellery from the murder scene was planted on Andrew Mallard, who later lost it at a motel – was left in the air.
The report said:
“There are a number of circumstances which suggest that [now-Assistant Commissioner, Mal] Shervill (pic) arranged for the undercover officer to give to Mr Mallard some jewellery from Flora Metallica, with the intention that the latter would be found in possession of it, thus providing a link between Mr Mallard and the crime scene.
”[However] after reviewing all the evidence and submissions, the commission is unable to form an opinion whether the jewellery … was as the result of improper conduct of any, or if so which, person or persons.”
Several other serious allegations, including that then Detective Sergeant Caporn swore a false search warrant, were also far from resolved.
“The commission believes that the warrant was obtained on a complaint containing false information,” the report stated.
“However, in view of the lapse in time and the possibility that there may have been more information available to Sgt Caporn than presently appears, the commission feels that he should be given the benefit of the doubt.”
Disappointingly, Commissioner Dunford did not try to resolve Gormly’s proposition that the only way Mallard could have “confessed” with any accuracy during a long, unrecorded interview by Caporn was that he was “fed” information about the crime, including witness descriptions and autopsy results.
The commissioner wrote:
“The police claim to have made notes word for word during the interview [and] as the police version was apparently accepted by the jury at the trial, there is little point in the commission attempting to determine where the truth lies as to the contents of the interview.”
The now-infamous Caporn (pic) “confession” was perhaps the most important event in the whole saga of Mallard’s wrongful conviction.
The best Commissioner Dunford could do was call it “unsatisfactory”.
He took an awful lot of taxpayers’ money not to attempt to “determine where the truth lies”, as he put it.
He copped out.
While the report fell short of Gormly’s recommendations and the Mallard family’s expectations, nobody should believe the Police Union spin that the misconduct findings are minor.
Assistant Commissioners Shervill and Caporn “turned a very weak case against [Mallard] into a much stronger case. This was fundamentally improper and was a major contributing factor to the wrongful conviction of Andrew Mallard.”
As those of us working on the Mallard case have long alleged, this report concluded that tunnel-visioned detectives chose a mentally vulnerable man as their sole suspect and then manipulated the case presented to the jury.
And they were assisted by a prosecutor who was willing to act improperly to secure a conviction.
Police Commissioner Karl O’Callaghan needs to send an unmistakable message to all officers – present and in the future – that if police officers act in this way, they do not belong in the WA service.
The Director of Public Prosecutions must do the same in his department.