I was framed by David John Caporn and others
             for murder, says Andrew Mallard

                                                                               27 Sep 2010

                                        

 

http://www.abc.net.au/news/2010-09-27/i-was-framed-for-murder-says-mallard/2275496

The man wrongfully convicted of murdering West Australian woman Pamela Lawrence says he still suffers abuse from members of the public who think he is "some sort of psycho".

In 1995, Andrew Mallard was convicted of the brutal murder of the Perth wife and mother and sentenced to 20 years in jail.

He served 12 years in prison until the combined efforts of a journalist, politician and a team of high-profile, pro bono lawyers finally saw him exonerated.

On ABC 1's Australian Story, Mallard speaks on camera for the first time, describing the circumstances leading up to his wrongful imprisonment and the torment he endured during his incarceration.

"I was wrongfully imprisoned. There's a stigma that goes with that and still goes with that," he tells the program.

"I know what they did to me and it's the truth. They framed me for a murder I did not commit."

Journalist Colleen Egan had worked on the Mallard case for two years when she became convinced there had been a miscarriage of justice.

"There probably are still people out there who believe that Andrew did it. There probably always will be," Ms Egan said.

"It was just a cruel twist of fate that put him on a collision course with this inquiry and it was just a matter of fact that there were police who were willing to act dishonestly.

"There was a prosecutor willing to run a case that wasn't quite right, and there were three judges who refused to believe it when evidence was put in front of them, and they saw what the High Court saw."

Desperate in her efforts to find new evidence, she took a risk in seeking the assistance of shadow attorney-general John Quigley, who had been the WA Police Union's lawyer for 25 years.

Soon Mr Quigley, with his intimate knowledge of policing practices, made a breakthrough, finding crucial evidence never revealed to the defence.

"There was never a moment that I thought that this is too long or this is too hard," Mr Quigley said.

"I was by this stage driven by both anger and acute embarrassment - acute embarrassment of the legal profession and the judiciary in Perth, that I'd been part of this whole system for 30 years."

Mallard's supporters were devastated three years later when, despite the new evidence, a fresh appeal to the WA Supreme Court failed.

But they fought on.

It would be another two years before Mallard's conviction was quashed by the High Court amid allegations of police and prosecution misconduct.

For the family of Mrs Lawrence, their devastation at her loss was compounded by the very public fight to clear the man they believed was her murderer.

"When there seemed to be this team around [Mallard] of quite senior and important people working for his side... we felt as though they were fighting to get mum's killer out of jail," Ms Lawrence's daughter, Katie Kingdon, said.

"We felt as though no-one cared what we'd been through and that he'd somehow convinced them of his innocence. At the time, it didn't occur to us that the justice system could have failed so dismally."

Later, during a cold case review, new forensic evidence pointed to another man now considered most likely to be the real murderer, but the case was further complicated by his suicide in a West Australian prison cell.

Watch part one of Australian Story's The Wronged Man at 8pm AEST tonight.

 

Quashed convictions spark calls for legal shake-up

Hagar Cohen- 16 Jul 201

http://www.abc.net.au/news/2010-07-16/quashed-convictions-spark-calls-for-legal-shake-up/907768

PHOTO: Michael Kirby says he would support a body to review criminal cases where there are allegations of miscarriage of justice. (ABC News)

Quashed convictions spark calls for legal shake-up

Hagar Cohen

Updated 16 Jul 2010

 

http://www.abc.net.au/news/2010-07-16/quashed-convictions-spark-calls-for-legal-shake-up/907768

 

A recently retired High Court judge has added his voice to calls for a shake-up of the criminal justice system.

Michael Kirby says he would support the establishment of an independent body to review criminal cases where there are allegations of a miscarriage of justice.

"What we need to consider in Australia is a body which is full-time working on examining these cases, so that it doesn't depend upon a letter written to some newspaper that gets people behind it," he said.

"There are too many chance factors in that and too many possibilities of slipping through the floor boards."

A Criminal Case Review Commission in Britain was set up 10 years ago, tasked with investigating prisoners claims of innocence.

In Australia, there have been two recent cases where people convicted of murder have had their convictions quashed after serving lengthy jail terms.

Andrew Mallard in Perth and Graham Stafford in Queensland were released from prison after a team of legal and other experts investigated their cases pro bono for years, and found new evidence in the process.

But these cases may be the tip of an iceberg.

The case attracting the most attention is in the legal fraternity is the Henry Keogh case in South Australia.

Keogh has been in jail in Adelaide for the past 16 years after being found guilty of drowning his fiance, Anna Jane Cheney, in the bath of her Adelaide home.

He was convicted of her murder and sentenced for life.

For the past 10 years a group of lawyers, medical experts, and human rights advocates has been campaigning for the re-opening of Keogh's case.

They say the much of the forensic evidence given by a Crown expert witness at the trial is flawed.

The Keogh team says the autopsy conducted by then-chief forensic pathologist in Adelaide Doctor Colin Manock was incomplete, and that some of his expert advice was wrong.

'Miscarriage of justice'

One of the people who has been working on the Keogh case is Doctor Byron Collins, a Melbourne based forensic pathologist.

He says Doctor Manock had diagnosed non-accidental drowning as the cause of death, without excluding conditions like epilepsy, heart infection or sudden unexpected collapse.

"In this case where the autopsy is incomplete, I think it's really inappropriate to say that this is homicide from the witness box," Dr Collins said.

In a rare interview, Dr Manock told ABC1's Background Briefing program that he rejects the criticism and stands by his autopsy report.

"At the time it was an obvious case of drowning and I felt that the findings that I described were sufficient to support drowning," he said.

The Keogh case is closed, so the South Australian Attorney General must approve the re-opening of the case for new evidence to be heard in court.

But former attorney-general Michael Atkinson has already refused three petitions from Keogh's lawyers asking for the evidence to be re-examined.

They are now in the process of submitting a fourth petition.

Keogh's barrister Kevin Borick and the other legal experts working on the Keogh case have been pushing for the establishment of an independent criminal case review commission, that could assess the new evidence in the Keogh case.

"There's a very powerful case that there was a miscarriage of justice, that the trial process was totally unfair," he said.

Former Assistant Western Australian Police Commissioner David John Caporn 

Former Assistant Western Australian Police Commissioner David John Caporn was orginally a  Detective Sergeant and a member of the Major Crime Squad who worked on the Pamela Lawrence Homicide Investigation in May 1994, was appointed the head of the Macro Task Force in invvestigate the Caremeont Serial Killings, and became as high as an Assistant Commissioner of Police of Western Australia..... was being groopme dy his senior Freemason Brothers in the Western Australian Police Force to be the next Freemason Police Commissioner fo5r Western Australia ... untill things suddenly changed in the police career of the then Assistant Western Australian Police Commissioner David John Caporn .. the High Court of Australia  set aside the murder conviction of Andrew Mallard, on the grounds that the High Court of Australia felt that the then Assistant Western Australian Police Commissioner David John Caporn and other Western Australian Police Officers, and the Director of Western Australian Public Prosecutions including the prosecutor handling the Andrew Mallard presecution. Kenneth Paul Bates  did not present the full relavent evidence to the jury and in fact tampeted and malipualted the evidence to help obtain the murder conviction against Andrew Mallard  for the murder of Pamela Lawrence  ....
a subsequent inquiry into the case by the  Corruption and Crime Comisison for Western Australia supported the High Courts ruling....

CORRUPTION AND CRIME COMMISSION REPORT ON THE INQUIRY INTO ALLEGED MISCONDUCT BY PUBLIC OFFICERS IN CONNECTION WITH THE INVESTIGATION OF THE MURDER OF MRS PAMELA LAWRENCE, THE PROSECUTION AND APPEALS OF MR ANDREW MARK MALLARD, AND OTHER RELATED MATTERS ...

7 October 2008

ISBN: 978 0 9805050 6 1 -2008

This report and further information about the Corruption and Crime Commission can be found on the Commission Website at www.ccc.wa.gov.au.

Corruption and Crime Commission Postal Address PO Box 7667 Cloisters Square PERTH WA 6850

Telephone (08) 9215 4888 1800 809 000 (Toll Free for callers outside the Perth metropolitan area.)

Facsimile (08) 9215 4884 Email info@ccc.wa.gov.au Office Hours 8.30 a.m. to 5.00 p.m., Monday to Friday

[75] The Commission has formed a number of opinions as to misconduct and made a number of recommendations which are set out in Chapter 14 of the Report.

[76] The opinions as to misconduct may be summarised as follows.

1. That Det Sgt Caporn engaged in misconduct in writing the letter to the Police Prosecutor dated 17 June 1994 containing incorrect and misleading information.

2. That Det Sgt Shervill engaged in misconduct in requesting Mr Lynch to amend his reports by deleting all reference to the salt water testing. 3. That Det Sgt Shervill engaged in misconduct in bringing about the alterations to the statements of various witnesses without any reference to their earlier recollections.

4. That Det Sgt Caporn engaged in misconduct in bringing about the alterations to the statements of various witnesses without any reference to their earlier recollections.

5. That Det Sgt Shervill engaged in misconduct in making false entries in the Running Sheets relating to the amendments to the witnesses’ statements.

6. That Det Sgt Shervill engaged in misconduct in failing to disclose to the defence the original statements of the witnesses including Mr Lynch’s original report and details of the unsuccessful attempts to locate a weapon capable of inflicting wounds similar to those found on Mrs Lawrence. 7. That Mr Kenneth Bates engaged in misconduct in running the trial on the basis that a wrench as drawn by Andrew Mallard was the murder weapon,but, at the same time, failing to put Andrew Mallard’s drawing to Dr Cooke and asking whether the deceased’s injuries were consistent with the use of such an instrument.

8. That Mr Kenneth Bates engaged in misconduct in failing to disclose to the defence the pig’s head testing of the wrench or ensuring that it had been disclosed by the police.

[77] The recommendations are detailed below.

1. That the Commissioner of Police give consideration to the taking of disciplinary action against Assistant Commissioner Malcolm William Shervill and Assistant Commissioner David John Caporn.

2. That the Director of Public Prosecutions gives consideration to the taking of disciplinary action against Mr Kenneth Paul Bates.

3. That consideration is given by the Commissioner of Police to making special provision for the interviewing by investigating police of mentally ill suspects.

4. That whenever there is legislation, fresh authoritative case law, or DPP guidelines which relate to the conduct of criminal investigation or the admissibility of evidence in such cases, senior police officers affected by such matters be required to attend formal seminars or meetings at which they can be made familiar with such matters.

5. That whenever the police obtain advice from the Office of the Director of Public Prosecution such advice be furnished in writing setting out, at least, the material considered, the opinion and the grounds upon which such opinion is based; or in cases of urgency, a detailed contemporary note should be made, preferably by the DPP officer or his secretary, and also by the police, setting out the matters specified.

6. That Mr Andrew Mallard gives consideration to raising a complaint with the Legal Practitioners Complaints Committee (LPCC) regarding the conduct of the trial by Mr Bates. [Division 3 of the Legal Practice Act 2003 deals with complaints made about legal practitioners. Section 175(2) specifies who can make a complaint to the LPCC including the Attorney General, the Legal Practice Board, the Executive Director of the Law Society, any legal practitioner or any other person who has had a direct personal interest in the matter].

[78] Finally the Commission acknowledges the efforts and expertise of those persons who were instrumental in securing justice and vindication for Andrew Mallard, especially Ms Colleen Egan, journalist, Mr Quigley MLA, Mr Malcolm McCusker QC, and Clayton Utz, solicitors, who acted pro bono.

 

Andrew Mallard offered $3.25 Million Compensation by the Western Australian Government
 in compensation or wrongfully spending 12 years in prison for a wrongful murder conviction caused by
false, manipulated and withheld evidence put together and present to the Supreme Court by former Assistant Western Australian Police Commissioners David John Caporn and Malcolm William Shervil,l and  Robert John McKechnie, the then Director of Western Australian Prosecutions and his senior prosecutor Kenneth Paul Bates !

Andrew Mallard's lawyers were asking for $Aust 7.5 million compensation for damages suffered to Andrew Mallard for 12 years wrongful imprisonment and the public embarrassment of be named as a convicted murdered for 12 years..
The government's $3.25m offer comes on top of the ex-gratia payment of $200,000 made by the previous State Government in December 2006. 

Mr Porter said while the payment would not prevent Mr Mallard from pursuing further legal action against the State or any of its officers, the figure must be taken into account and deducted from any further compensation. 

“There is no limit whatsoever on Mr Mallard by the giving of that money to his proceeding to any litigation that he may wish to proceed with against the State or any of its agents,” Mr Porter said. 

“If Mr Mallard were successful at any point in future times in any litigious action against the State, the money that he has now been given by the State Government would need to be deducted from any award of damages he may receive.”

The AWN.bz has information that indicates that British backpacker Simon Rochford did not murder Mrs Pamela Lawrence, as claimed by the Western Australian Police.
AWN.bz investigators are for the firm belief that  British backpacker Simon Rochford did not murder Mrs Pamela Lawrence, and that the murdered was a well connected Perth person, whom put pressure on former Assistant Western Australian  Police Commissioner David John Caporn, the set up Andrew Mallard on the murder of charge of Mrs Pamela Lawrence, to help take the heat of any further investigation into trying to locate and charge the real murderer.
AWN.bz investigators are for the firm belief that  British backpacker Simon Rochford did not commit suicide the day after it was make public in the newspaper that the Western Australian police were stating that  Simon Rochford was the most likely person who murdered Mrs Pamela Lawrence.
AWN.bz investigators are for the firm belief that  British backpacker Simon Rochford was murdered by prison officers, the day after it was make public in the newspaper that the Western Australian police were stating that  Simon Rochford was the most likely person who murdered Mrs Pamela Lawrence.

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Andrew Mallard offered $3.25 Million!

A reasonable payment for 12 years of your life I guess, plus two dodgy coppers given the arse. I heard he's a rider as well!

Actually NO! Thinking about it, if Cornelia Rau got a coupla million for 10 months incorrect detention, then AM should be getting a damn-sight more than that....and the coppers who were complicit in the case should be charged with perjury!

Andrew Mallard gets $3.25m for wrongful 12 years jail | PerthNow

BREAKING NEWS: ANDREW Mallard has been offered $3.25m compensation for more than 12 years in jail following his wrongful conviction for murder.
Mr Mallard was wrongly convicted of the 1994 murder of Mosman Park jeweller Pamela Lawrence, but later acquitted by the High Court. 

Mr Porter announced the compensation offer to Mr Mallard, the highest of its kind in the State’s history. 

Mr Mallard served 12 years of a 20-year jail sentence before his conviction was quashed by the High Court in 2005. 

He walked free from jail in 2006. 

The murder investigation and his wrongful conviction was the subject of a Corruption and Crime Commission inquiry into whether police officers had engaged in misconduct. 

Two assistant police commissioners, Mal Shervill and David Caporn, were forced to step down from their top jobs in the wake of the CCC's findings. 

Mr Mallard had demanded $7.5 million on advice from his lawyers and on the weekend opposition legal spokesman John Quigley claimed he was injected with drugs as part of efforts to make him confess to the crime. 

Mr Quigley, who has championed Mr Mallard's case and lobbied for his release, said he knew the final settlement would be ``miserable''. 

``One thing I can say with absolute confidence about this offer - Premier Barnett and Christian Porter wouldn't accept this in return for 12 years jail and the destruction of their life,'' Mr Quigley told AAP. 

``Why should Andrew's life be valued at a lesser rate than Colin Barnett's or Christian Porter's?

``In fact this sum equates to approximately what Colin Barnett will get from the parliamentary super scheme when he retires.'' 

Police consider Mrs Lawrence's likely murderer was British backpacker Simon Rochford, whose palm print was found during a cold case review of the matter. 

He committed suicide in an Albany jail after a news organisation reported he had been identified as a suspect by police.
The government's $3.25m offer comes on top of the ex-gratia payment of $200,000 made by the previous State Government in December 2006. 

Mr Porter said while the payment would not prevent Mr Mallard from pursuing further legal action against the State or any of its officers, the figure must be taken into account and deducted from any further compensation. 

“There is no limit whatsoever on Mr Mallard by the giving of that money to his proceeding to any litigation that he may wish to proceed with against the State or any of its agents,” Mr Porter said. 

“If Mr Mallard were successful at any point in future times in any litigious action against the State, the money that he has now been given by the State Government would need to be deducted from any award of damages he may receive.”

 

 

Fat Pat 05-05-2009, 01:17 PM

A reasonable payment for 12 years of your life I guess, plus two dodgy coppers given the arse. I heard he's a rider as well!

Actually NO! Thinking about it, if Cornelia Rau got a coupla million for 10 months incorrect detention, then AM should be getting a damn-sight more than that....and the coppers who were complicit in the case should be charged with perjury!

Andrew Mallard gets $3.25m for wrongful 12 years jail | PerthNow (http://www.news.com.au/perthnow/story/0,21598,25432605-2761,00.html)

BREAKING NEWS: ANDREW Mallard has been offered $3.25m compensation for more than 12 years in jail following his wrongful conviction for murder.
Mr Mallard was wrongly convicted of the 1994 murder of Mosman Park jeweller Pamela Lawrence, but later acquitted by the High Court. 

Mr Porter announced the compensation offer to Mr Mallard, the highest of its kind in the State’s history. 

Mr Mallard served 12 years of a 20-year jail sentence before his conviction was quashed by the High Court in 2005. 

He walked free from jail in 2006. 

The murder investigation and his wrongful conviction was the subject of a Corruption and Crime Commission inquiry into whether police officers had engaged in misconduct. 

Two assistant police commissioners, Mal Shervill and David Caporn, were forced to step down from their top jobs in the wake of the CCC's findings. 

Mr Mallard had demanded $7.5 million on advice from his lawyers and on the weekend opposition legal spokesman John Quigley claimed he was injected with drugs as part of efforts to make him confess to the crime. 

Mr Quigley, who has championed Mr Mallard's case and lobbied for his release, said he knew the final settlement would be ``miserable''. 

``One thing I can say with absolute confidence about this offer - Premier Barnett and Christian Porter wouldn't accept this in return for 12 years jail and the destruction of their life,
'' Mr Quigley told AAP. 

``Why should Andrew's life be valued at a lesser rate than Colin Barnett's or Christian Porter's?

``In fact this sum equates to approximately what Colin Barnett will get from the parliamentary super scheme when he retires.'' 

Police consider Mrs Lawrence's likely murderer was British backpacker Simon Rochford, whose palm print was found during a cold case review of the matter. 

He committed suicide in an Albany jail after a news organisation reported he had been identified as a suspect by police.
The government's $3.25m offer comes on top of the ex-gratia payment of $200,000 made by the previous State Government in December 2006. 

Mr Porter said while the payment would not prevent Mr Mallard from pursuing further legal action against the State or any of its officers, the figure must be taken into account and deducted from any further compensation. 

“There is no limit whatsoever on Mr Mallard by the giving of that money to his proceeding to any litigation that he may wish to proceed with against the State or any of its agents,” Mr Porter said. 

“If Mr Mallard were successful at any point in future times in any litigious action against the State, the money that he has now been given by the State Government would need to be deducted from any award of damages he may receive.”

Xuaxace 05-05-2009, 01:26 PM

Exacly like the show ''life''. Can't imaging losing 12 years of my life, scary stuff.

=Stevo= 05-05-2009, 01:29 PM

$5-6M sounds about fair to me... hopefully he gets a bit more than the 3... - this kind of thing is unacceptable and can/does destroy lives and families

Mungus 05-05-2009, 01:31 PM

It was interesting reading in the Sunday Times on the weekend. It basically said that he has already been offered $3m, was knocking that back and going for $7.5m

The tone of this article suggests that he's accepting the $3.25m, while still taking action (for the balance)? It was also suggested in the article that he wouldn't hesitate going after the (ex) police officers in his litigation, which somehow meant the police union would have to pick up the tab. Doesn't sound fair to me. 

I wouldn't have a clue what amount of compensation could make up for 12 years inside, but whatever it is, it's a lot of money that we have to foot the bill for. I suppose the government depts and corporate australia aren't that much different after all - short term decisions and actions end up costing much more in the long run.

resist 05-05-2009, 01:35 PM

It should be more like 10. You can't imagine the continuing impact this has had on the life of one of the best people I've had the pleasure of meeting.

polonY 05-05-2009, 01:46 PM

He certainly deserves what he's looking for, and I wish him every luck in receiving it. When you consider that it's not just the lost time, but what you actually go through in prison, the cost definitely adds up. The payment should be enough for him to fix his family up and sit back and relax for the rest of his life.

D'Artagnan 05-05-2009, 01:46 PM

Sell all the assets of the police who were involved. Clearly proceeds of crime. 

Seriously though, about $10m would seem fair to me.

D'Art

Satan1 05-05-2009, 02:10 PM

It's pretty hard to pop a $figure on it that's for sure, but a million a year would seem like a starting point.

chew 05-05-2009, 02:31 PM

Damn near impossible to put a figure on twelve years in gaol. Give him what he asks for. Surely we should be going after the dodgy coppers?

PatB 05-05-2009, 03:09 PM

Surely we should be going after the dodgy coppers?


But would you really wish bankruptcy on all of Perth's hardworking purveyors of doughnuts?

chew 05-05-2009, 03:16 PM

But would you really wish bankruptcy on all of Perth's hardworking purveyors of doughnuts?

O.K. I'll clarify by saying the dodgy coppers who verbal people to make their own job easier and get accolades for doing so.

MuNch 05-05-2009, 04:18 PM

Give him whatever he wants, ffs.
His whole life is a wreck because of it.
Imagine if you were thrown into Jail for 12 years for something you didn't do?

merctom 05-05-2009, 04:24 PM

It's pretty hard to pop a $figure on it that's for sure, but a million a year would seem like a starting point.


agree 100% - a mill a year he was in jail - and all legal fees that have been paid to get him out of jail reimbursed by the state.

The cops should now be in jail for perjury and perverting the course of justice.

Deej 05-05-2009, 06:40 PM

Even if the guy was an unemployed vagrant at the time of his arrest... you take 12 years off the prime of his life, I feel strongly that he is worth every cent of $12m for this.

$3m is an insult, lame, and puts a very low price on someones rights to live his life as a free person in this country I say.

Give him $20m. Its a shame he has no right to a civil suit directly against the coppas and prosecuters who tried to have him wrongfully convicted.

Fat Pat 05-05-2009, 07:23 PM

Give him $20m. Its a shame he has no right to a civil suit directly against the coppas and prosecuters who tried to have him wrongfully convicted.
D, Christian Porter said that the money is a "gift" from the government and will not preclude AM from any civil action he may take. The ABC indicated at least two cops and a prosecutor are in his sights.

IF he gets a judgement LESS that this payment, then he will have to pay back any difference.

Surely this should be a case of "proceeds of crime" and the cops when/if found guilty should have all their assets/super/cars/whatever stripped and sold to pay any outstanding balances.
If it's good enough for Bikers and drug dealers, then perhaps it should be made for Police and "Captains of Industry" as well!

Good luck Andrew.

Barfridge 05-05-2009, 07:32 PM

I read somewhere today that they gave him drugs somehow to try to get him to confess. Does anyone know anything about this?

mekon 05-05-2009, 07:35 PM

12 years he'll never have back, hope he gets what he wants. Good luck to him with his art and I hope he gets the remainder of his life back.

I lived in Mosman Park at the time this happened in a small unit, should have seen the cops handling this when they did door to door canvasing with an identikit picture. I had one officer paying close attention to my hifi gear and their serial numbers. Fucking arseholes. You invite them in to assist and they instantly assume a uni student (at the time) can't afford to shop at Frank Prowse Hifi...

Shoddy detective work. The poor bloke had mental health issues and may have lived a 'different lifestyle' so they picked him, plus he was less than a block away from the crime scene. Lazy police work.

polonY 05-05-2009, 08:00 PM

I must say, I am not the biggest fan of John Quigley, but props to him for defending AM so thoroughly during his ordeal.

AusStealth 05-05-2009, 08:20 PM

But would you really wish bankruptcy on all of Perth's hardworking purveyors of doughnuts?

Don't you mean *consumers* of doughnuts and free Mackers, Chicken Treat, HJs and Red Rooster?

Once again the tax payer (you and me) will carry the cost.

TurboR1 05-05-2009, 09:35 PM

I haven't killed anyone yet either... here's my $3.25mil?

Neil-51 05-05-2009, 09:51 PM

I read somewhere today that they gave him drugs somehow to try to get him to confess. Does anyone know anything about this?

Was this the guy who was a drug user at the time and gave odd responses when interviewed by the police?

Fat Pat 06-05-2009, 09:24 AM

AM had/(has?) some mental issues - perhaps depression and an undercover operative provide him with a smoking implement - he denies providing dope (I call BS on that durrr) got him all bent and he started spouting a bunch of unreliable shit. Sort of fantasy land IIRC, and that made the basis for the court case, along with all the dodgy dealings that the top coppers got up to.

John Quigley named the undercover copper in Parliament to try and get this issue rolling, and that's when the whole thing fell apart.

This proves along with many other "problems" over the years that the WAPOL are as corrupt as any of the forces in QLD, VIC or NSW.

Remember John Button, Andrew Beamish or even the Mickelburgs?

Just as an off-side, I gather that AM is friends with some people on here, and he also rides a bike, so has anyone invited him to join-up?

mickyjim 06-05-2009, 09:48 AM

Pay him for his past pain - $6m - AND future pain - He cant live in AUST because people will recognise him and make his life hell - Another $6m - Mr Mallard deserves alot more than the $3.25m.. where do we post the $12m cheque to...

Also - someone mentioned it above - Proceeds of crime where does it go? why isn't it there to help victims of crime?????

When a Low income family has there only mean of transport stolen and trashed and they have no insurance - why isn't there a fund to cover people in this situation... Or Arson... If the "At fault party" cannot be found then they deserve to have someone covering them. The Police seem happy to claim money/property... but why isn't there a rebound situation of giving back to people that need it...

robwilliams 06-05-2009, 11:38 AM

In relation to the statement 'they gave him drugs' in gaol, I read in Sundays paper that they institutionalised him and pumped him with drugs because he refused to admit guilt! That is just wrong! $3.5 mil is slap in the face. $12 mil would help redress that kind of behaviour he has had to endure whilst incarcerated! 
But, I also read the papers with a sceptical mind, noting that they too get things wrong. Not that that has any relevance on how much AM should get compensated.

MuNch 06-05-2009, 12:16 PM

Give him whatever he wants.

Martin1 06-05-2009, 01:27 PM

I must say, I am not the biggest fan of John Quigley, but props to him for defending AM so thoroughly during his ordeal.

pro-bono as far as i know too. 

lawyers and QCs cop a bit of shit here and in the general public at times, but sometimes they really are fighting for the right and just outcome.

Mallard deserves much more than this pittance offered to him (especially with the devious provision that some of it may be withdrawn should he pursue civil action). 

he has lost 12 yrs of his life in prison for nothing, about time the govt recognised the magnitude of this.

shmoo 06-05-2009, 03:56 PM

agree 100% - a mill a year he was in jail - and all legal fees that have been paid to get him out of jail reimbursed by the state.

So your saying he should get paid a mill per year for the time he was wrongly in gaol. OK, fine. What does he get for the fact that the cops ruined his whole life? No matter what, he will ALWAYS be stuck with being the guy who spent 12 yrs in gaol for murder. That will stay with him as long as he is alive. What chance does he have of getting a decent job? The emotional trauma is completely incomprehensible for me.

I dont know the answer, as others have said, how can we put a $$$figure on what he went through? All I do know is that 3 mill is pathetic.

He came out of gaol and had nothing. Zero. Zilch. He deserves enough cash to be able to buy a reasonable home and set up himself for the rest of his life, without having to work, because the cops took his life away and he will never be able to work IMHO.

gus9606-05-2009, 04:24 PM

^^^ 
He deserves enough cash to be able to buy a reasonable home and set up himself for the rest of his life, without having to work,

one of Barnett's stooges said on tv last night that the 3.2mill payout would buy him a nice house and with the proper investment would be able to live and not work again, basically saying it was a shitload of money and he wouldn't need anymore.

mekon 06-05-2009, 04:59 PM

3.25 is fuck all. Seriously hope that comment didn't come from anyone in the state treasury, or we're doomed.

Guy really needs to be taken care of. 12 years and the pain and suffering of being charged and found guilty of something so horrid that he didn't do. Fucking shoddy detectives. Fuck 'em!!

digz 06-05-2009, 07:00 PM

if it was me double digit millions would be a minimum i'd be thinking 20mill

still it's not like he is the only person to ever be locked up for something they didn't do

shmoo 06-05-2009, 08:39 PM

^^^ true, he's not the only one, but he was not just unfortunate enough to be convicted, he was the victim of blatant and abhorrent police corruption. This is in Australia, in the very recent past and we're talking about a guy being tortured. Fucking shockingly amazing story. Poor bastard.

TurboR1 06-05-2009, 09:52 PM

Well look at it this way...

The "average" Australian yearly wage is about $57000... once you take out all the taxes you see about $36-40000 in your pocket, of which almost all of it disappears into mortgage and living expenses. Over a 40 year working life that works out to $1.6M total.

He has just gotten twice that for a 12 year life investment... while behind bars he would have gotten free food, free accommodation, free dental and health care, foxtel more than like too the bastard.... the sodomy would have taken some getting used to, but you need to take the good with the bad.

If I were him I would take my $3.25M and bog off to the Ukraine and make questionable pornography and watch more dollars roll in...

I'm a "Glass is half full" kind of person.

Klink 06-05-2009, 09:56 PM

he was the victim of blatant and abhorrent police corruption
It wasnt Corruption, it was just plain bad and reckless policing.

TurboR1 06-05-2009, 09:59 PM

A bit like my fender eliminator yellow sticker on the Mito... but lets not go there again.

The Saint 09-05-2009, 09:52 AM

Quigley said on the radio yesterday morning that petty thief and illicit drug user Mallard had suffered terribly in prison and had been regularly bashed because he refused to speak to other prisoners, who he viewed as "criminals" unworthy of his respect or attention.

What I want to know is: how could Mallard be so certain that their convictions were correctly obtained?

mekon 09-05-2009, 09:56 AM

Quigley said on the radio yesterday morning that petty thief and illicit drug user Mallard had suffered terribly in prison and had been regularly bashed because he refused to speak to other prisoners, who he viewed as "criminals" unworthy of his respect or attention.

What I want to know is: how could Mallard be so certain that their convictions were correctly obtained?

They probably didn't protest their innocence, in fact they probably wore their crimes as a 'badge of honour'.

The Saint 09-05-2009, 10:02 AM

They probably didn't protest their innocence, in fact they probably wore their crimes as a 'badge of honour'.Farken crims, show some humility when you've been caught you bastards. :rolleyes:

Fat Pat 09-05-2009, 05:24 PM

...and he is required to pay tax on the 3.25 million.

I have no idea what he should get but Cornelia Rau makes a good precedence.

$2.2 million for 10 months or some such.

Deej 09-05-2009, 09:36 PM

Well look at it this way...

The "average" Australian yearly wage is about $57000... once you take out all the taxes you see about $36-40000 in your pocket, of which almost all of it disappears into mortgage and living expenses. Over a 40 year working life that works out to $1.6M total.

He has just gotten twice that for a 12 year life investment... while behind bars he would have gotten free food, free accommodation, free dental and health care, foxtel more than like too the bastard.... the sodomy would have taken some getting used to, but you need to take the good with the bad.

If I were him I would take my $3.25M and bog off to the Ukraine and make questionable pornography and watch more dollars roll in...

I'm a "Glass is half full" kind of person.

K now look at it this way..... how much money would I have to pay you right now for you to go to jail for 12 years....right now. No more punany (apart from getting bottom raped), no more home cooked dinners, no more bike riding, no more furthering your career, having to watch your back 24 hours a day, no more hanging with your buds, eating out a restaurants, travel, interacting, walking in the rain, going for a swim, yackn on the net, riding yer bike, no more touching your loved one, family, doing whatever the hell you want when you want, etc. How much?

Forget about the way you feel... being about going through a trial and being convicted for something you did not do and having to live with that anxiety of being likely to be locked up for the rest of your life because of it. Forget about the fact that your photo is now recognizable everwhere you go in Perth….that sorta stuff…. so back to the question…. how much would you take for 12 years? $3.5m?

I dont care if you are on the doll and a vagrant, nobody is going to take $3.5m to take 12 years of your prime off your life. It has a cost, there may be a point that you will take money….have a think about it.....

For me, there is no money... I wouldnt do it for all the money on earth. Whats your price? $3.5m? I dont think so, so how can we compensate someone for that?

I say give him the State Government Cheque Book and let him fill it in with the amount, and let the state try to recover as much as it can from those who fucked the whole thing up.

Desmo 09-05-2009, 09:54 PM

Don't forget that this $3.5M is a one off payment, it doesn't stop him pursuing legal recourse and compensation in a civil case.

Fat Pat 09-05-2009, 10:02 PM

Don't forget that this $3.5M is a one off payment, it doesn't stop him pursuing legal recourse and compensation in a civil case.
Don't forget that IF he wins a larger amount from the CORRUPT Police and prosecutors AM will be expected to DEDUCT the $3.25 million from such amount....and he will still be required to pay tax on that. What's the bet all "interested party's" in this case have transferred their assets into family trusts of taken them off-shore?

And that Smug-Shit Colin Barnett thinks that the offer is "Plenty of Money":mad:

At the very least the Govt should pay $1 Million per year, sell the guilty coppers and prosecutors assets (as "proceeds of crime") and make up the difference.

There has been PLENTY of chatter about cops "bending" the rules to get convictions for years - and all state governments have been complicit in not investigating the complaints thoroughly enough. We need a full Royal commission into all suspect judgements and name/shame all dodgy coppers!

Desmo 09-05-2009, 10:07 PM

There has been PLENTY of chatter about cops "bending" the rules to get convictions for years 
So what you're saying is cops lie and implement immoral and corrupt tactics to achieve their desired results?

Sventek 09-05-2009, 10:18 PM

In the interests of balance and accuracy, I'd like to point out that the CCC did not find that any police officer acted corruptly or maliciously.
They made findings of misconduct, and if there had been sufficient evidence to pursue charges then they would have done so, rather than recommending disciplinary action.
Having read the report (which you can see here: http://www.ccc.wa.gov.au/pdfs/Mallard%20Report%20complete.pdf), I think everyone should be a lot more upset about the conduct of certain members of the DPP's office.

Klink 09-05-2009, 10:27 PM

I read somewhere today that they gave him drugs somehow to try to get him to confess. Does anyone know anything about this?

Actually I do... that statement isnt quite true.

There was a period that they released him (after the initial questioning), the police placed an undercover officer in Mallard's path,
for the purpose of learning more about Mallard and trying to figure out his involvement if any. For a number of weeks the UCO befriended him and spent time with Mallard.
They ended up doing a number of things together, from having a beer at the pub to going and buying some things from a surplus store.
At one point Mallard asked if the UCO knew where he could get some pot. The UCO did, and drove him to a house where Mallard could buy some.

This was viewed by some as the UCO giving him drugs to help glean some information, but it just wasnt true.

It doesnt seem that Mallard was a bad person, he just had his flaws and vices like the rest of us...

Deej 09-05-2009, 10:30 PM

Don't forget that this $3.5M is a one off payment, it doesn't stop him pursuing legal recourse and compensation in a civil case.

Civil case against wot... a few retired coppas with fuck all net worth who have prob spent the last 12 years ensuring they have no assets in their name anyway?

Sure... win a civil case for a few mill, the next day they will be in court filling in Bankruptcy papers and Mallard will get nothing from them.

Sorry, IMO its up to the State to compensate as it is the people who worked for the State that locked the guy up. Then the State can try and get their 2 cents in the dollar from a retired detective who is worth just a a few hundred grand or is an intentional bankrupt.

Deej 09-05-2009, 10:36 PM

I duno, unless I am missing something, do the WA Police indemnify their officers against civil cases? In which case it’s the State of WA anyway.

Neil-51 10-05-2009, 01:51 PM

I think there is a general principle that an employee is indemnified if they act properly. If you act illegally or negligently then you are on your own.

Fat Pat 10-05-2009, 10:18 PM

So what you're saying is cops lie and implement immoral and corrupt tactics to achieve their desired results?
Yes!

John Button, Andrew Beamish, The Mickelburgs...

How many other people were fitted-up by this mob?

In the interests of balance and accuracy, I'd like to point out that the CCC did not find that any police officer acted corruptly or maliciously. They made findings of misconduct, and if there had been sufficient evidence to pursue charges then they would have done so, rather than recommending disciplinary action. Having read the report (which you can see here: http://www.ccc.wa.gov.au/pdfs/Mallard%20Report%20complete.pdf), I think everyone should be a lot more upset about the conduct of certain members of the DPP's office.
The CCC is a pile of shit. Their track record in digging up real dirt is shit.... a few councils and some low-level cops. Big deal.

These cops were proven to have with-holden evidence from defence teams, "arranged" to have dope given to a person who had known mental issues, and they still were not charged with anything more serious than misconduct.

Give me a break!

Sventek 10-05-2009, 10:30 PM

The CCC is a pile of shit. Their track record in digging up real dirt is shit.... a few councils and some low-level cops. Big deal.

These cops were proven to have with-holden evidence from defence teams, "arranged" to have dope given to a person who had known mental issues, and they still were not charged with anything more serious than misconduct.

Give me a break!

Unlike you and the media, the CCC needs to have evidence I'm afraid. Have you read the report?

Fat Pat 10-05-2009, 10:53 PM

Unlike you and the media, the CCC needs to have evidence I'm afraid. Have you read the report?
something wrong with the internets at home, will have to do a "xerox subsidy" at work tomoz....

Infusi0n 11-05-2009, 04:34 PM

There is a good article in the western suburbs weekly about this, more about how politicians control the repayment process and that it should be controlled by a non partisan group because only the high profile cases (read: politically sensitive) get payouts, other (and deserving) people get booted out on their ass.

Klink 11-05-2009, 07:04 PM

Yes!

John "arranged" to have dope given to a person who had known mental issues, and they still were not charged with anything more serious than misconduct.


Read my post above... he was going to get dope regardless, the UCO just provided the contact and Mallard purchased it of his own free will.

Mallard five assigned desk duties

ABC 14 Dec 2007

Mallard five assigned desk duties - ABC News (Australian ...

ABC700 × 700Search by image

Mallard five assigned desk duties - ABC News (Australian Broadcasting Corporation)

https://www.google.com/imgres?imgurl=http%3A%2F%2Fwww.abc.net.au%2Fnews%2Fimage%2F188904-1x1-700x700.jpg&imgrefurl=http%3A%2F%2Fwww.abc.net.au%2Fnews%2F2007-12-14%2Fmallard-five-assigned-desk-duties%2F988666&docid=jDBXIawuRLoyhM&tbnid=ANfcfU4Js2IgwM%3A&vet=1&w=700&h=700&safe=strict&bih=909&biw=1280&q=assistant%20western%20australian%20police%20commissioner%20shervill&ved=0ahUKEwjk252dgojSAhVsLcAKHRwvBR0QMwgbKAIwAg&iact=mrc&uact=8#h=700&imgrc=ANfcfU4Js2IgwM:&vet=1&w=700

Mallard five assigned desk duties

Former Western Australian Assistant Police Commissioner David John Caporn

http://www.abc.net.au/news/2007-12-14/mallard-five-assigned-desk-duties/988666

 

ABC 14 Dec 2007

The five police officers who appeared before the Corruption and Crime Commission hearings into the wrongful conviction of Andrew Mallard have been assigned desk duties pending the outcome of the inquiry.

The Corruption and Crime Commission (CCC) is investigating Mr Mallard's wrongful conviction for the 1994 murder of jeweller Pamela Lawrence.

Mr Mallard spent 12 years in jail before his conviction was quashed.

The officers were involved in gathering evidence against Mr Mallard.

They are Assistant Commissioners Mal Shervill and David Caporn, Superintendent John Brandham, Senior Sergeant Alan Carter and Sergeant Mark Emmett.

The CCC has been urged to make adverse findings against the officers including 11 against Assistant Commissioner Caporn and 9 against Assistant Commissioner Shervill.

The Police Commissioner Karl O'Callaghan said in a statement the five men would remain stood aside from police duties.

He said they would be involved in duties such as emergency management business planning.

"My legal advice instructs that it would be premature and unsafe to pre-empt the Acting Commissioner's findings, he said.

"As Mr Jeremy Gormly (Counsel Assisting the inquiry) has stressed several times to Acting Commissioner Dunford, the submissions that are made by counsel assisting don't in any way amount to findings or opinions or assessments, they are simply submissions for Mr Dunford to consider.

"These officers have high level skills and are being paid decent wages. The public rightly expect a return on their investment and it would be untenable to have these officers sitting at home on full pay."

The officers have consistently rejected allegations of misconduct, and Mr O'Callaghan says he will not decide their long term future until the CCC hands down its report about April next year.

The Police Union says assigning the officers to desk duties will not harm their reputations.

The Union's Mike Dean says it is a fair move.

"These officers are highly skilled and it would be a total waste to send them home, and I believe the best use for the public's money is to utilise them in a non-threatening area where they can make a useful contribution," he said.

Assistant Commissioners Mal Shervill

http://www.abc.net.au/news/2007-08-08/assist-commissioner-mal-shervill/188908

WA Police Senior Sergeant Alan Carter

http://www.abc.net.au/news/2007-12-14/senior-sergenat-alan-carter/988682

WA Police Sergeant Mark Emmett

http://www.abc.net.au/news/2007-12-14/sergeant-mark-emmett/988688

Top WA cop 'oversaw bad CCC unit'

West Australian Assistant Police Commissioner Nick Anticich

http://www.theaustralian.com.au/national-affairs/top-wa-cop-oversaw-bad-ccc-unit/news-story/f06b3d798291bfc3d116cd830d5018d7

The Australian650 × 366Search by image

Top WA cop 'oversaw bad CCC unit'. West Australian Assistant Police Commissioner ...

                                   

ANDREW BURRELL - WA Chief Reporter Perth @AndrewBurrell7

One of Western Australia’s most senior police officers has been linked to a scandal that has rocked the state’s corruption watchdog over claims that its officers lied to the Australian Taxation Office, interfered with a police investigation, stole money and went fishing on work time.

An explosive report by the Corruption and Crime Commission’s parliamentary inspector, Michael Murray, found that a top-secret CCC surveillance division had a “disturbing culture” of unaccountability and a history of “systemic” management failures.

The officers in the division, the Operations Support Unit, are also alleged to have bought 4WD vehicles­ for their own use, got driver’s licences under false names and falsified meal allowances.

One allegedly failed to tell the CCC he had been convicted of drug possession.

Some are also alleged to have told Police Commissioner Karl O’Callaghan that the CCC had conducted a thorough integrity check of an applicant for special constable when no such check had been conducted.

West Australian Assistant Police Commissioner Nick Anticich, a former CCC employee, was named in the report as the CCC office­r who had immediate oversight and management of OSU head Craig McGowan.

Mr Anticich, who was the CCC’s director of operations between June 2004 and August 2009, was in charge of Mr McGowan from May 2005, the report said.

It names Mr Anticich, along with operations deputy director Robert Sutton and executive direc­tor Mike Silverstone, as the CCC senior officers who had oversight of Mr McGowan and the OSU. “Executive managerial responsibility rested not only with Mr McGowan, but also with senior commission officers,” it said.

A spokeswoman for Mr O’Callaghan denied yesterday that Mr Anticich had been a direct supervisor of the OSU.

“Mr O’Callaghan is satisfied with his performance during the six years he has been with (Western Australia Police) and thus has confidence in Mr Anticich’s ability to perform the functions of leading and managing his portfolio,” she said.

Mr McGowan, who left the CCC in 2013, is alleged to have been “instrumental” in giving false information to the ATO in 2006 over the CCC’s fringe benefits tax liability.

According to the report, OSU officers lied about the amount of time vehicles were used for official and private purposes. This was done to allow them to avoid having to pay a contribution under a vehicle scheme.

After a police investigation, the CCC subsequently handed over $270,000 in FBT for 2012-13.

As a result of the allegations, first raised in 2013, three CCC offic­ers were dismissed and four resigned while Mr McGowan did not have his contract renewed. Neither Mr Silverstone nor Mr Sutton are still with the CCC.

Police have charged two OSU officers with criminal offences relating to falsifying CCC records and giving false evidence.

CCC Commissioner John McKechnie said the body had improved its governance to prevent a recurrence of the behaviour set out in the report.

“None of the individuals involved in the conduct issues that were the subject of investigation by WA Police remain with the CCC,” he said.

                        Cops under probe had inside help

http://www.theaustralian.com.au/news/nation/cops-under-probe-had-inside-help/news-story/1d40e9366dcea49e2194f2adb61152e2

ALANA BUCKLEY-CARR -TheAustralian  -August 7, 2007

IVE West Australian police officers, including two assistant commissioners, were given access to classified documents and allowed to examine evidence of corruption allegations against them while on full pay, the Corruption and Crime Commission was told yesterday.

Assistant police commissioner David Caporn admitted under questioning that he and four other officers had done nothing for three months except "research, analyse and hypothesise" on allegations that they acted corruptly in the investigation that led to Andrew Mallard spending 12 years in jail for a murder he did not commit.

The use of the office where the five gathered was signed off at the highest level, probably by Police Commissioner Karl O'Callaghan, Mr Caporn said. But he denied suggestions by commissioner John Dunford that the men had worked together to get their story straight and corroborate on their evidence.

The group, which had collected at least 30 files of documents to help in its defence, was assisted by the WA police's internal affairs unit, Mr Caporn said, adding that he and fellow assistant commissioner Mal Shervill began requesting documents last year when they thought the probe into the Mallard affair was imminent. Mr Caporn, Mr Shervill, Superintendent John Brandham, Senior Sergeant Alan Carter and Sergeant Mark Emmett were stood down by Mr O'Callaghan in May last year after the discovery of new evidence in the Mallard case.

This led to Mr Mallard being exonerated of the murder of Perth jeweller Pamela Lawrence in 1994. Simon Rochford, who was serving a life sentence in Albany prison for the murder of his girlfriend, committed suicide hours after being named as the prime suspect in a cold case review of the bungled murder investigation.

Mr Caporn told the CCC that while the men were allowed back to work in September, he and Mr Shervill stood aside from their usual portfolios at the end of April to prepare for the corruption hearings.

The other officers joined them in the following weeks.

"Was anyone doing any police work other than preparing for this matter?" counsel assisting the commission Jeremy Gormly SC asked.

"No," was the response.

Mr Gormly also revealed that one of the officers working on the cold case review, Senior Constable Dion Selby, had shown the group confidential documents.

Mr Caporn and the officers also had access to the list of every piece of evidence collected by the investigation team, which were locked away in boxes, and were given copies of many of these documents after making a written request to the internal affairs unit.

Mr Caporn said yesterday the officers were allocated police office space, most recently in the southern Perth suburb of Cannington, where they spent their time going through the various allegations against them and comparing their individual recollections.

"We research, analyse and hypothesise (sic) all of the allegations that have been made against us," Mr Caporn said.

He said the officers sometimes had conflicting recollections but he denied that they agreed to change their memories to satisfy the CCC.

"Don't you think the commission might be more interested in five separate responses?" Mr Dunford asked.

The hearing, which will be closed to the public next week, continues today.

 

Shervill case 'could prompt tougher penalties'

Updated 1 Jul 2009

http://www.abc.net.au/news/2009-07-01/shervill-case-could-prompt-tougher-penalties/1338306

Shervill case 'could prompt tougher penalties'

 1 July 2009

http://www.abc.net.au/news/2009-07-01/shervill-case-could-prompt-tougher-penalties/1338306

Shervill case 'could prompt tougher penalties'

Updated 1 Jul 2009       

Western Australia's Police Minister says he would consider changing police disciplinary procedures following the resignation of another senior officer involved in the wrongful conviction of Andrew Mallard.

Mr Mallard spent 12 years in jail for the murder of WA jeweller Pamela Lawrence before being released.

Former assistant commissioner Mal Shervill was in charge of the murder investigation and has been stood down on full pay since 2005.

Mr Shervill was facing disciplinary action but resigned yesterday before the process could be completed.

A Corruption and Crime Commission inquiry last year found he had engaged in misconduct to secure the conviction.

Another former assistant commissioner, Dave Caporn, was also involved in the case and resigned earlier this year.

Police Minister Rob Johnson says he understands Mr Mallard is angry that both men have avoided any punishment.

"The Commissioner has spoken with me in relation to Mal Shervill resigning," he said.

"If the Commissioner feels that we need to change Section 8 of the Act, then he will possibly put that to me and I will consider whatever he puts to me."

CORRUPTION AND CRIME COMMISSION REPORT ON THE INQUIRY INTO ALLEGED MISCONDUCT BY PUBLIC OFFICERS IN CONNECTION WITH THE INVESTIGATION OF THE MURDER OF MRS PAMELA LAWRENCE, THE PROSECUTION AND APPEALS OF MR ANDREW MARK MALLARD, AND OTHER RELATED MATTERS

7 October 2008

ISBN: 978 0 9805050 6 1

This report and further information about the Corruption and Crime Commission can be found on the Commission Website at www.ccc.wa.gov.au.

Corruption and Crime Commission Postal Address PO Box 7667 Cloisters Square PERTH WA 6850

Telephone (08) 9215 4888 1800 809 000 (Toll Free for callers outside the Perth metropolitan area.)

 Facsimile (08) 9215 4884 Email info@ccc.wa.gov.au Office Hours 8.30 a.m. to 5.00 p.m., Monday to Friday

ABBREVIATIONS AND ACRONYMS

A-CC: Anti-Corruption Commission

A Crim R: Australian Criminal Reports

AFIS: Automated Fingerprint Identification System

CCC Act: Corruption and Crime Commission Act 2003

Clemency Appeal: The referral to the Court of Criminal Appeal of Andrew Mallard’s petition for clemency.

CLR: Commonwealth Law Reports

Comprehensive Summary: The Comprehensive Summary of Facts prepared by Det Sgt Shervill and attached to the letter to the DPP dated 17 June 1994. Commission: Corruption and Crime Commission #

Cons: Constable

Det: Detective

Det Sgt: Detective Sergeant

DPP: Director of Public Prosecutions

HCA: High Court of Australia

HOLMES: The HOLMES system is a computerised case management system that was used by the Major Crime Squad for the Lawrence Homicide in 1994.

MLA: Member of the Legislative Assembly

NAFIS: National Automated Fingerprint Identification System

Operation Huntsman: The code name given to the surveillance and undercover operation in respect of Andrew Mallard from 10 to 17 June 1994.

P: page

Para: paragraph

Police Regulations: Police Force Regulations 1979

Pr T: Transcript page of the Private Hearings of the Commission. Preliminary Hearing: The Committal Proceedings in the Local Court (16 to 18 January 1995).

PSM Act: Public Sector Management Act 1994

QC: Queen’s Counsel Running Sheet Major Crime

Running Sheet: relevant to the investigation of the Pamela Lawrence homicide.

SC: Senior Counsel

Section 86 SubmissionsL Written Submissions lodged pursuant to section 86 of the Corruption and Crime Commission Act 2003.

Sen Cons: Senior Constable

Sgt: Sergeant

T: Transcript page of the Public Hearing of the Commission.

TT: Transcript page of the Trial of Andrew Mallard 1995.

UCO: Undercover Officer

VDT: Voir Dire Transcript (October 1995)

WAPOL: Western Australia Police

WASC: Western Australia Supreme Court

Written Submissions: Submissions in writing lodged following the conclusion of the public hearings and addresses.

Whilst the transcript of the Public Hearings runs in a continuous sequence, the transcripts of the Private Hearings are separately paginated for each witness and for each day of the same witness.

Police and other persons are referred to by their rank or occupation at the time of the events referred to.

DRAMATIS PERSONAE

Katherine BARSDEN: A 13 year old schoolgirl who observed a male person acting suspiciously within the Flora Metallica premises about the time of the murder in 1994. She gave evidence at the trial of Andrew Mallard.

Kenneth Paul BATES: The Prosecutor at the trial of Andrew Mallard in 1995. He is currently a Senior Prosecutor at the DPP.

Francis John BRANDHAM: A Detective Sergeant, acting Officer-inCharge of the Major Crime Squad and worked on the Pamela Lawrence Homicide Investigation. He is currently a Superintendant of Police.

David John CAPORN: A Detective Sergeant and a member of the Major Crime Squad who worked on the Pamela Lawrence Homicide Investigation in May 1994. He is currently an Assistant Commissioner of Police.

Alan CARTER: A Detective Constable and a member of the Major Crime Squad who worked on the Pamela Lawrence Homicide Investigation. He is currently an Inspector of Police.

Robert Enos COCK SC: The current Director of Public Prosecutions.

Dr Clive Trevor COOKE: The Forensic Pathologist who performed the post mortem examination of Pamela Lawrence. He is currently the Chief Forensic Pathologist for Western Australia.

Mark Andrew EMMETT: A probationary Detective attached to the Claremont Criminal Investigation Branch who assisted the Major Crime Squad in the Pamela Lawrence Homicide Investigation. He is currently a Sergeant of Police.

Michelle Isolde ENGELHARDT: Permitted Andrew Mallard to stay at her Mosman Park Flat from 12 May 1994 viii until his arrest on 24 May. She was a significant witness in the trial of Andrew Mallard.

Gary: The pseudonym used by and in reference to the undercover police officer who spent time with Andrew Mallard between 14 and 16 June 1994. He is no longer a member of WAPOL.

Patrick HOGAN: The defence counsel for Andrew Mallard at his trial.

Pamela LAWRENCE: The proprietor of Flora Metallica, a jewellery shop in Mosman Park who was murdered in her shop premises on 23 May 1994.

Peter Charles LAWRENCE: The widower of Pamela Lawrence.

Bernard Frank LYNCH: The principal chemist at the Chemistry Centre of Western Australia in 1994. He is now retired.

Andrew Mark MALLARD: Convicted in 1995 of the wilful murder of Pamela Lawrence and sentenced to life imprisonment. He was released in 2006 when his conviction was overturned.

John Roderick MCKECHNIE QC: The Director of Public Prosecutions in 1994-95. He is currently the Honourable Justice McKechnie of the Supreme Court of Western Australia.

M1: The code reference to the Police Officer who was the controller for the undercover police officer from 14 to 16 June 1994 (see Gary).

Dr Jeremy Francis O’DEA: The principal forensic psychiatrist for the Health Department of Western Australia based at Frankland Centre, Graylands Hospital.

John Robert QUIGLEY: A member of the Australian Labor Party and sitting member for Mindarie in the Legislative Assembly. He was formerly, for many years, the Solicitor the West Australian Police Union of Workers.

Simon ROCHFORD: Charged with the murder of his girlfriend Brigitta Dickens some seven weeks after the murder of Pamela Lawrence and in 1995 he was convicted of her murder and sentenced to life imprisonment. He is now deceased. Subsequent investigations have indicated that he is the prime suspect for the murder of Pamela Lawrence.

Malcolm William SHERVILL: A Detective Sergeant, a member of the Major Crime Squad and the Case Officer for the Pamela LAWRENCE Homicide Investigation. He is currently an Assistant Commissioner of Police.

TABLE OF CONTENTS ABBREVIATIONS AND ACRONYMS …………………………………....… v

DRAMATIS PERSONAE ………………………………………………...….. vii

 EXECUTIVE SUMMARY ..………………..………….……………………… xv
 CHAPTER ONE INTRODUCTION ………...…..……..…………………………..……………...
1 CHAPTER TWO JURISDICTION AND PROCEDURE ………………………………………...
3 Introduction ………………………………………………………………..….. 3
 2.1 Misconduct …………………………………………………………....... 3
 2.2
Reporting by the Commission ………………………………………… 6
2.3 Reaching an Opinion: Standard of Proof …………………………..... 7 2.4
Procedure ……………………………………………………………….. 8
2.5 Miscellaneous …………………………………………………….…... 10
CHAPTER THREE BACKGROUND …………………………………………...…………………. 11
3.1 The Murder ………………………………………………………….… 11
 3.2 Andrew Mallard ……………………………………………………..… 11 

3.3 The Clemency Petition ……………………………………..………... 12

CHAPTER FOUR THE CRIME SCENE AND FORENSIC PROCEDURES …………..……. 15
 4.1 The Shop and Business ……………..…………………………….… 15
4.2 23 May 1994 ………………………….…………………………….… 16 4
.3 Arrival of Other Officers ………………………………….………..…. 17
4.4 Mr Lawrence ………………………………………..…………..…….. 17
 4.5 Autopsy ………………………………………………………………... 18
4.6 Forensic Work ……………………………………………………....… 19 4.7
Conclusion of Forensic Work ………………………………….…….
 20 CHAPTER FIVE THE EARLY POLICE INVESTIGATION …………….....…………………. 23

Introduction ………………………………………………………………….. 23
5.1 Katherine Barsden ………………...……………………………….… 23 5.2
General Enquiries …………………………………………………….. 24
5.3 Lloyd Harvey Peirce ……………………………….………..……….. 25 


 CHAPTER SIX THE INVESTIGATION OF ANDREW MALLARD ………………….……. 31
6.1 Nomination ……………..……………………...……………………… 31 

6.2 Andrew Mallard ………………………….……....…………………… 31
6.3 Michelle Engelhardt ………………………………….………………. 33
 6.4 23 May 1994 ………………………………………..……..………….. 34

6.5 Interviews at Graylands Hospital …...………………………………. 35
6.6 House to House Survey ……………………………………………… 37 6.7 

Andrew Mallard as a Suspect …………………….…………………. 38
6.8 10 June Interview of Andrew Mallard ……………..………...……… 39 6.9

The Undercover Operation ……………………..…………………… 48 6.10

The Suspicious Jewellery ……………..……………….……………. 54 6.11

The Red Castle Hotel ……………………………………….……….. 59
6.12 Arrest on Bench Warrant …………………………………………….. 59 6.13

The Interview of 17 June 1994 ……………………….…………...… 61
6.14 Failure to Video Record the Interviews ………………………….…. 69
6.15 A True Record? …………………...…………………….……………. 71

CHAPTER SEVEN BUILDING THE CASE AGAINST ANDREW MALLARD ……………….. 75
7.1 The Interim Period ……………..……………...……………………… 75
7.2 The Letter of 17 June 1994 …………….……....…………………… 77

Commission Opinion ………………………………………………………. 80
7.3 Pig’s Head Testing ………………………………….…..……………. 81 

7.4 Mr Lynch and Salt Water Testing …………………………….…….. 83 Commission Opinion ………………………………………………………. 85
7.5 The Altered Statements …...……………………………………….... 85 7.6 Katherine Barsden ……………………………………………….…… 86
7.7 Michelle Engelhardt …………………….……………………………. 90 7.8 Katherine Purves ……………..………...………………………….… 94
7.9 Lily Raine ……………..………………………………….……………. 95 7.10 Meizhak Mouchemore ………………………………...…….……….. 96

7.11 Summary ………………………………………………………….…… 98
 Commission Opinion ………………………………………………….……100


CHAPTER EIGHT THE CHARGING OF ANDREW MALLARD AND THE DUTY OF DISCLOSURE ………………………………………………...... 101 8.1

The 19 July Meeting ……………..……………...………………..… 101
8.2 The Comprehensive Summary of Facts …………….……....….… 103 8.3

The Duty of Disclosure ……………………………………………... 105
Commission Opinion …………………………………………………..…. 108
 8.4 A Continuing Problem ……………..……………….…..………..…. 108

CHAPTER NINE THE TRIAL OF ANDREW MALLARD …………………………………... 111

9.1 Allocation of Prosecutor ……………..……………...……………… 111
 9.2 Receipt of Brief …………….……....……………………………….. 111 xiii
 9.3 Preliminary Hearing …...……………………………………….….... 112
 9.4 Pre-Trial Matters ……………………………………………….…… 114 

9.5 Private Investigator …………………….……………………...……. 115
9.6 The Trial ……………..………...………………………….…………. 116
Commission Opinion ……………………………………………………... 123
9.7 “Twelve/Fifteen Things Only the Killer Would Know” ………...…. 124
 9.8 Defence …………………………….…………………………….….. 129
9.9 Verdict, Sentence and Appeal …...………………...…………….... 129
 CHAPTER TEN THE PETITION (CLEMENCY APPEAL) ………………………….……... 131
10.1 Mr John Quigley MLA……………..……………...………….……… 131
10.2 The Court of Criminal Appeal …………….……....……………….. 132
10.3 Discontinuance …...……………………………...…………….….... 133

CHAPTER ELEVEN THE COLD CASE REVIEW AND SIMON ROCHFORD …………..…... 135
11.1 Cold Case Review ……………..………………...………….……… 135
11.2 Sandford Inquiry …………….……....…………………..………….. 137
11.3 Release of Simon Rochford’s Name …...………………...….….... 138

CHAPTER TWELVE OVERVIEW ………………………………………………………………….. 141

12.1 The Interviews ……………..……………...………………………… 141
12.2 The Altered Statements …………….……....………………..…….. 143
12.3 Non-Disclosure …...…………………………………………….….... 144
12.4 The Conduct of the Prosecution …………………………………… 145
12.5 The Conduct of the Defence …………………….…………...……. 145
12.6 Similarities Overlooked ……………..………..………….…………. 145
12.7 WAPOL in 1994-95 ……………..………...…….……….…………. 146

 CHAPTER THIRTEEN MR JOHN QUIGLEY MLA ………………………………….…………….. 149
13.1 Introduction ……………..……………...……………….…………… 149
13.2 Law …………….……....………………..………………………..….. 149
13.3 Meeting at Plantation Restaurant …...……………………….….... 150

13.4 Telephone Messages to the Undercover Officer ………………… 152
13.5 Identifying the Undercover Officer ……………...…………...……. 155
13.6 Discussion ……………..………..………….…………………….…. 156

CHAPTER FOURTEEN OPINIONS, RECOMMENDATIONS AND ACKNOWLEDGEMENTS …

...…………………………………………………………………….... 163
 14.1Commission Opinions ……………..……………...……………...… 163 

14.2 Recommendations …………….……....………………………..….. 165
14.3 Acknowledgements …...……………………………………….….... 166
ENDNOTES ………………………………………………………………..... 167

New footage shows Kevin Spratt screaming in agony

APRIL 11 2011 Aja Styles

http://www.watoday.com.au/wa-news/new-footage-shows-kevin-spratt-screaming-in-agony-20110411-1daom.html

Aboriginal man Kevin Spratt was handled roughly by police while suffering from a dislocated shoulder at a prison infirmary after repeatedly being Tasered at a Perth watch house in 2008, the Corruption and Crime Commission heard.

New video footage was released today as the CCC re-commenced its hearings investigating the misconduct of police and Department of Corrective Services officers over the handling of Mr Spratt while in custody.

                                             
                                         Kevin Spratt and his partner Tayunna Schatkowski appear at the Corruption and Crime Commission hearing. 

A damning video recording of Mr Spratt squirming in agony on the floor of the East Perth watch house after being Tasered 14 times by nine police officers on August 30, 2008, was released by the CCC last year.

The CCC then called hearings into the matter in December last year, when it was further revealed on video footage that Mr Spratt was again Tasered, seven days later on September 6, 2008, by Department of Corrective Service's Emergency Support Group, who were all dressed in riot gear.

Today Senior Counsel assisting the commission, Peter Quinlan, revealed new footage showing Mr Spratt directly after that Tasering on September 6, 2008, being escorted to the Casuarina Prison infirmary from a prison van.

Mr Quinlan said Mr Spratt was taken a day later in shackles to Royal Perth Hospital where he was diagnosed with several injuries. "X-rays taken at the hospital demonstrated that Mr Spratt was suffering from at least one, and possibly other, fractures of the ribs, a collapse of his lung and a dislocated shoulder...," Mr Quinlan said.

"How those injuries were sustained is yet to be determined. "The videotape I'm about to play indicates, at the very least, that some of those injuries - and I refer in particular to the injury to Mr Spratt's arm – were suspected at an early stage."

During the recording Mr Spratt can be constantly heard screaming as he is put into restraints on the infirmary bed saying "arm, arm, arm... look at me arm". When queried by a nurse about his arm, an officer told her: "He's been moving his arms all the way here."

He goes on to say Mr Spratt had been biting his own arm, which Mr Spratt denied. "Sister girl you got to help me," he cried to the nurse and continued to scream about his arm and foot.

"Why you beat me for?" The nurse told him: "You need to be really still, otherwise everyone is going to jump on you." She told him to "shush" and asks if he has ever broken his arm before, which he denied.

He asked for water and she agreed, telling him she has to go somewhere first, and after some mumbling she told him: "They're not going to kill you." The nurse spoke on the phone to a doctor about possible injuries to his arm and shoulder, saying "he's been struggling".

"I think otherwise he's well, the arm is what we need to eliminate," she said.

Sergeant Nicholas Rowe, who acted as a commanding officer at the watch house in the lead up to Mr Spratt being moved to Casuarina, told the commission that Mr Spratt was not complaining of any injuries to his shoulder or arm while in the holding cell. "When he was put into the cell we actually had no further physical contact with him. So no it was only the blood, which he did have some blood on him from his lip or nose, that was it, that was the only injury observed," he said. When asked if there were any complaints about suffering significant pain to his body, he replied: "No. Not to my knowledge.

"I didn't hear it, it wasn't recorded and given his behaviour on the day both from my recollection and reading from the running sheet, he was punching the wall, being aggressive, yelling and screaming for some considerable time. "So it sort of gave us some idea that he was fighting fit and still ready to fight as it were, hence the action that we took."

The prison officer responsible for confronting and Tasering Mr Spratt and later escorting him to Casuarina prison on September 6, whose name has been suppressed, claimed Mr Spratt had been able to use his arms on the journey.

"He was able to, in the vehicle, rip a pair of boxer shorts off, other than using his arms I don't know any other way you'd ripped them off. And he was also doing other things in the back of the van, you've obviously got have your arms to use," he said.

He agreed Mr Spratt was screaming out in pain when medical staff tried touching his arms but pointed out that Mr Spratt also "complained about broken legs, which he didn't have".

The officer went further to say that he had even sat on Mr Spratt at hospital because he put up a fight about having his arm in plaster and in a brace.

The hearing will continue tomorrow.

WA Police launch fresh probe into Spratt Taser case

http://www.watoday.com.au/wa-news/wa-police-launch-fresh-probe-into-spratt-taser-case-20110303-1bfyi.html

MARCH 3 2011

Police Commissioner Karl O'Callaghan has launched an inquiry into whether officers perverted the course of justice in the case of an Aboriginal man Tasered multiple times in custody.

Shadow attorney-general John Quigley and Mr O'Callaghan met in Perth today to discuss the case of Kevin Spratt, who was Tasered multiple times in the Perth Watch House in August 2008.

The Corruption and Crime Commission is investigating the case, which sparked outrage when a video of the Tasering was released publicly in October last year.

In response to the video's release, WA Police displayed a flow chart to reporters, outlining events leading up to Mr Spratt's Tasering including previous alleged clashes with police and charges against him.

But Mr Quigley told State Parliament last month that the flow chart was a "litany of lies" compiled by the WA police internal affairs unit to vilify Mr Spratt.

He also described Mr O'Callaghan as the worst police chief in the country.

Mr Quigley said the flow chart stated Mr Spratt had acted violently and obstructed police at the Watch House before being Tasered, and as a result he had been charged and convicted of obstructing police.

But the video clearly showed Mr Spratt had not acted violently, Mr Quigley said.

In the WA Supreme Court last week, Mr Spratt's conviction was quashed, with Justice Stephen Hall saying a miscarriage of justice had occurred and his guilty plea was prompted by false police allegations.

Mr Spratt had admitted the offence because he did not remember the incident.

Today Mr Quigley said Mr O'Callaghan had invited him to breakfast to discuss the case and he had shown the Commissioner documents supporting his contention that "what was in the flow chart was false".

"He was very concerned."

Mr Quigley said Mr O'Callaghan indicated he would initiate an inquiry into whether there had been a perversion of the course of justice by any officers, and internal affairs unit staff would not be involved.

He said he had agreed to a request from the Commissioner to cooperate with the inquiry.

When asked if he still thought Mr O'Callaghan was the worst police commissioner in the country, Mr Quigley admitted he had "overstretched there".

"I should have said he's gaining that reputation."

Mr Quigley said he accepted what the Commissioner told him, that he did not know what was behind the flow chart's creation.

"I'm convinced the Commissioner didn't know about it."

Mr O'Callaghan last week said he was no longer confident the flow chart was accurate because of the emergence of new information since it was released.

AAP

http://www.watoday.com.au/wa-news/top-cop-lied-to-justify-spratt-tasering-mp-20110217-1axjr.html

Top cop 'lied' to justify Spratt Tasering: MP

Fran Rimrod  FEBRUARY 17 2011

Labor MP John Quigley has launched an extraordinary attack on Police Commissioner Karl O'Callaghan, accusing the state's top police officer of fabricating a "litany of lies" to justify the brutal Tasering of Aboriginal man Kevin Spratt in police custody.

The remarks emerged today in a parliamentary speech by Mr Quigley, the shadow attorney-general, who gave a brutal assessment of the WA Police force and branded Mr O'Callghan the "worst commissioner in the country".

He also took aim at Police Minister Rob Johnson, who he said did not have the courage to make Mr O'Callaghan account for the handling of the Spratt inquiry because he was a "police sycophant".

Speaking under Parliamentary privilege, he was scathing of the treatment of Mr Spratt, who was Tasered 14 times in the East Perth Watch House while surrounded by nine police officers on August 31, 2008.

Internal CCTV footage showed the officers taking turns to send electric shocks into Mr Spratt while he screamed in agony on the ground.

The damning footage, which was broadcast worldwide, has since been described as indefensible and a "gross misuse" of the weapon by the Commissioner and Premier Colin Barnett.

A Corruption and Crime Commission probe was launched into Mr Spratt's Tasering as part of an investigation into the use of Tasers in the WA Police force.

Today in Parliament, Mr Quigley argued a flow chart Mr O'Callaghan presented to the media at a press conference in October last year, after the Tasering off Mr Spratt came to light, was a "litany of lies".

The chart included details of all police interactions with Mr Spratt, including his criminal history and the four other occasions that Tasers were used on him after he kicked, bit and spat at police.

On the day of the press conference Mr O'Callaghan said: "on most occasions when Mr Spratt has come into contact with police he has been extremely aggressive and extremely violent."

In his speech today Mr Quigley refuted this statement, saying Mr O'Callaghan was selling a lie to the public about Mr Spratt being violent in the lock-up.

Mr Quigley argued the flowchart, detailing Mr Spratt's violent behaviour, was used to vilify Mr Spratt and justify the police's violent approach in the Watch House.

He challenged several items on the flowchart, which he said was presented to the media in "Delvene Delaney Sale of the Century- style" by an officer.

He said in the subsequent CCC inquiry into the Tasering the Commissioner had "his knees kicked in" by his own staff.

During a CCC hearing in December last year, a detective admitted he knew the facts used to Mr Spratt with obstructing police were false, but he did nothing to change them.

A female constable told the CCC she was shocked and disappointed at the "excessive" force used by her superiors when dealing with Mr Spratt at the Watch House.

While he conceded that Mr O'Callaghan may not be the fabricator of those supposed "lies", he called WA's top officer "the worst commissioner in the country" and claimed the WA police had "the worst reputation around the nation".

Police Minister Rob Johnson has slammed Mr Quigley's speech, accusing him of misusing parliamentary privilege and of "being a show-pony".

"I challenge John Quigley to come out of the house and repeat word for word what he said in the house today," he said. "He is doing this because he wants to be the star of a TV program that's in Perth this week, the Australian Story, and he is simply being a show-pony as he always is. "I find his actions absolutely disgraceful."

Mr O'Callaghan has been contacted for comment.

- with Katherine Fenech and Aja Styles

Court of Appeal quashes Spratt conviction

Aja Styles  FEBRUARY 24 2011

A wrongful conviction against Taser victim Kevin Spratt has been quashed by the Court of Appeal after horrifying footage showing nine police brutalising the 41-year-old Aboriginal man was made public.

Internal CCTV footage from inside the East Perth lock-up showed Mr Spratt being Tasered 14 times while on the floor screaming in agony was broadcast worldwide last year, after being released by the Corruption and Crime Commission. Mr Spratt had been arrested in August 2008 after an incident in King William Street in Bayswater. But he was further charged with obstructing officers in the Watch House, which related to the Tasering incident.

Mr Spratt served two months jail for the offence, which ran concurrently with other jail terms imposed for three other charges. Mr Spratt brought his conviction for obstructing police before the Court of Appeal today.

The action was against his arresting officer, Detective Constable Brett Fowler, who wrote up the report in which it stated that Mr Spratt "again became violent and aggressive towards police who were attempting to restrain him by kicking and flailing his arms towards police as they approached". Internal CCTV footage of the Watch House showed Mr Spratt simply sitting on a chair grabbing hold of the seat with his arms and hands as the Taser barbs were deployed.

Justice Stephen Hall found that Mr Spratt had been denied justice by not being able to view the footage prior to pleading guilty to the charge in the Perth Magistrates Court and his appeal was granted.

Outside court Mr Spratt's lawyer Steven Penglis said they were seeking financial compensation for what occurred in the Watch House.

"The system failed Kevin in this regard in two ways; first, as you've heard, we had a charge laid by a police officer who wasn't there at the time of the alleged offence and didn't take steps to verify that it was true by looking at the CCTV footage and secondly, when that police officer realised that it was wrong he didn't take any steps to ensure that it came to the attention of Kevin, the prosecuting sergeant or the court," he said.

Mr Penglis has written to the Police Commissioner about these concerns. Mr Spratt said he was pleased with the outcome. "It has brought a lot of bad memories back but I just want to move on with life," he said.

Earlier today, Police Commissioner Karl O'Callaghan conceded claims about Kevin Spratt resisting police in the Perth Watch House appeared to be wrong. Mr O'Callaghan rejected shadow attorney-general John Quigley's assertions in Parliament last week that he lied the the public in a "flow-chart" of the events displayed to the media to explain the lead-up to that night, saying at the time he believed the statement of material facts to be correct.

"There is no deliberate intent to mislead anybody at all, it is not my style, I have never done it nor will do it," he told 6PR Radio.

The flow chart was designed to help media understand the chain of events when reporting and was only meant as "an aid", Mr O'Callaghan said. He did however concede he was "not (happy) now" after it was revealed that the charges of obstructing officers came after the Tasers were deployed. But he said he has been unable to interview the officers involved because the CCC had taken over the inquiry since November 15 last year and it was now up to the corruption watchdog to release their findings.

Former Western australian assistant police Commissioner

John Caporn resigns from the Western Australian Police

http://www.watoday.com.au/wa-news/caporn-resigns-from-wa-police-20090211-8443.html

FEBRUARY 11 2009

Joseph Sapienza

A senior police officer who was stood down for his involvement in the wrongful conviction of Andrew Mallard has resigned from the force to accept an executive role at the Fire Emergency and Services Authority.

Assistant commissioner Dave Caporn was stood down from police duties along with fellow assistant commissioner Mal Shervill following a Corruption and Crime Commission inquiry into the Mallard conviction.

Mr Mallard was wrongly jailed for 12 years over the murder of Mosman Park jeweller Pamela Lawrence in 1994. The overturning of his conviction led to the CCC inquiry, after which acting commissioner John Dunford registered two opinions of misconduct against Mr Caporn.

Police Commissioner Karl O'Callaghan today accepted Mr Caporn's resignation from WA Police, which was a decision entirely of Mr Caporn's making.

"As he is no longer a serving officer, the current evaluation by police of the findings against Mr Caporn by acting CCC commissioner Dunford with regard to Andrew Mallard will cease immediately," Mr O'Callaghan said.

"No further action will be taken and I wish Mr Caporn well with his new career."

Mr O'Callaghan said the police evaluation of the findings against Mr Sherville in the Dunford Report would continue.

He remains stood down from duty pending the outcome of that evaluation.

Mr Shervill's contract as assistant commissioner expires at midnight on February 19 this year after which his rank will return to the rank of superintendent.

O'Callaghan cancels internal inquiry on David John Caporn

http://www.watoday.com.au/wa-news/ocallaghan-cancels-internal-inquiry-on-caporn-20090211-84g0.html

West Australian Police Commissioner Karl O'Callaghan has cancelled an internal review into an assistant commissioner, after he resigned from the force to take up another public service position.

David Caporn, who headed an investigation which led to the wrongful conviction and jailing of Andrew Mallard for the murder of Mosman Park jeweller Pamela Lawrence in 1994, was stood down by Mr O'Callaghan last year.

It followed a finding by the state's Corruption and Crime Commission (CCC) that the then-detective had engaged in misconduct during the bungled investigation.

Mr Mallard is suing Mr Caporn and other police officers, the state, the police commissioner, the police minister and others for damages over his conviction and 12-year jailing for Ms Lawrence's murder.

It was revealed on Wednesday that Mr Caporn, whose contract expired on the same day, had accepted a job with the WA Fire and Emergency Services Authority (FESA) as executive director of community development.

The CCC findings - that he provided incorrect and misleading information to a police prosecutor in relation to the care of Mr Mallard - will not be investigated by police.

In the race for who will be the next Western Australian Police Commissioner it seems than question Western Australians will be asking...
Are we going to the yet another Freemason Red Lodge Police Commissioner, after all Western Australian Police Commissioners in the last 100 off years except for one have been Red Lodge Freemason Police Commissioners .... the exception was Italian Catholic Mafia appointed Brian Bull who was appointed the Western Australian Police Commissioners with the strong influence of the then Italian Mafia Perth God Father the late Samuel Franchina,  and the Italian Catholic Mafia appointed Premiers Ray O'Connor and Brian Burke



Feb 26, 2013 - FORMER West Australian premier Ray O'Connor, who was jailed for six months in the mid 1990's as part of the WA Inc scandal, has died

http://www.theaustralian.com.au/national-affairs/former-wa-premier-ray-oconnor-dead-at-86/news-story/3bfdef99e9d51da74e273acf2d8b7185

Feb 26, 2013 - FORMER West Australian premier Ray O'Connor, who was jailed for six months in the mid 1990's as part of the WA Inc scandal, has died

http://www.theaustralian.com.au/national-affairs/former-wa-premier-ray-oconnor-dead-at-86/news-story/3bfdef99e9d51da74e273acf2d8b7185

Former WA premier Ray O'Connor dead at 86

Former Western Australian premier Ray O'Connor arrives at Perth District Court for sentencing in 1995 after being found guilty of stealing $25,000.

FORMER West Australian premier Ray O'Connor, who was jailed for six months in the mid 1990's as part of the WA Inc scandal, has died.

Mr O'Connor, who was 86, had spent the latter part of his life in a Perth nursing home. The Liberal was given the unenviable task of succeeding party icon Sir Charles Court when he resigned as premier in 1982 - and lasted just over a year in the top job before losing the 1983 election. More than 10 years later, the government's dodgy ties with big business, including Alan Bond, came back to haunt Mr O'Connor when he was convicted of stealing a $25,000 cheque from Bond Corporation. He was sentenced to six months in jail.

AAP

Race for Western Australian Police Commissioner Crown

Grant Taylor - Tuesday, December 20, 2016 

https://thewest.com.au/news/wa/race-for-police-commissioner-crown-ng-b88333293z

Police Commissioner Karl O'Callaghan.

Insiders are jokingly calling it WA’s Game of Thrones — the behind-the-scenes battle between senior police to be crowned the State’s next commissioner.

While the competition may not be as bloody as that depicted in the popular television show, those in the know say it is fierce and heating up as Karl O’Callaghan’s 13-year reign as Police Commissioner draws to an end.

Both major parties have indicated they will begin the search for his replacement immediately after the March State election by advertising nationwide.

Labor leader Mark McGowan has fuelled the ambitions of local candidates by declaring he believes a West Australian should take over from Mr O’Callaghan when he retires in August.

“I think it sets a good example that you can go to high levels in the public sector and be promoted through hard work,” Mr McGowan said.

Police Minister Liza Harvey also expressed a vote of confidence in local officers but said the best applicant would be chosen regardless of where they came from.

“We will consider all worthy applicants when filling this important public position to ensure the great work of WA Police is continued after Mr O’Callaghan steps down,” she said.

Mr O’Callaghan said he believed there was “a very strong team at the top of the WA Police” capable of taking the helm.

Among the frontrunners is Deputy Commissioner — Operations Stephen Brown, a former detective who has overseen major reforms to the way police do business under the Frontline 2020 program.

But teething problems linked to those reforms were blamed for a spike in Perth’s crime rates last year.

Problems have since subsided but it remains to be seen whether any of the fallout will affect his chances.

The State’s Deputy Commiss-ioner — Specialist Services Gary Dreibergs is also a strong and experienced contender but lacks the profile of others who are likely to put their hand up for the job.

Assistant Commissioner Michelle Fyfe, who heads the State Crime portfolio, is more than capable of holding her own in the “blokey” world of policing.

She could prove a popular choice with the public by giving WA its first female commissioner.

Ms Fyfe faces stiff competition from several other highly experience assistant commissioners also likely to be honing their resumes.

Two other West Australians not working within WA Police could also be strong contenders.

Karl O’Callaghan’s former deputy Chris Dawson has impressed in his new role as chief executive of the Australian Crime and Intelligence Commission and would return with new skills.

Fire Commissioner Wayne Gregson’s name is also regularly thrown up as a possibility but he has previously denied any desire to return to policing.

Commissioner of Police

https://www.police.wa.gov.au/About-Us/Our-agency/Commissioner-of-the-WA-Police

 

Karl O'Callaghan joined the Western Australia Police as a 17-year-old Police Cadet in December 1973. He graduated as Dux of the Police Academy in January 1976.

Since graduating he has served in both metropolitan and regional Western Australia including at Police Communications, Port Hedland, Perth Traffic Branch, Manjimup, Community Education Section and the Police Academy. In 1996 he was promoted to Superintendent and was transferred to the Internal Investigations Unit and later ran both the Wheatbelt and South East Metropolitan policing districts.

In 2001 he was promoted to Assistant Commissioner (Strategic and Corporate Development) assuming responsibility for major change, reform and information technology projects in the Western Australia Police. He later relieved in the positions of Executive Director (Corporate Services) and Deputy Commissioner (Reform).

In 2004 he was appointed Police Commissioner and given the special additional task of implementing the reforms of the Kennedy Royal Commission. Since that time he has overseen and implemented widespread cultural, business and process change in the Western Australia Police. He has also championed the Frontline First policing direction and has reintroduced a 'back to basics' reassurance style of policing.

Commissioner O'Callaghan has a Bachelor of Education with 1st Class Honours and in 1998 he became the first police officer in the history of the Western Australia Police to complete a PhD.

In 1997 he was awarded a Churchill Fellowship and to study the teaching of police ethics and professional standards. In 2008 he was recognised for his contribution to diverse communities by Rotary International and became a Paul Harris Fellow. He is also a recipient of the Australian Police Medal.

Commissioner O'Callaghan is currently a Director on the Board of the P & N Bank. He is married with four children. When he is not involved in his 'day job' the Commissioner is a member of a local rock band called 'The Filth', playing guitar and singing. 'The Filth' raises money for various charities, one of which is Bright Blue - Police Commissioner's Fund for Sick Kids which helps to make a difference to sick children in Australia. Some of the funds, for example, are used to purchase specialised equipment to improve the lives of children suffering from cancer. His other interests include fishing, scuba diving and building live sound speaker systems.

THE MAIN CONTENDERS

Deputy Commissioner Stephen Brown

Stephen Brown

Deputy Commissioner — Operations

33-year veteran who was appointed Deputy in 2012. The former detective is considered the favourite, but carries some baggage as the architect of major reforms which coincided with big crime spikes last year.

Assistant Western Austraian Police Commissioner Michelle Fyfe

Assistant Commissioner — State Crime

Joined in 1984 and made Assistant Commissioner in 2012. A sentimental favourite as WA has never had a female commissioner.

Polished performer in front of the cameras who easily holds her own in a male-dominated force.

Deputy Police Commissioner Gary Dreibergs.

Gary Dreibergs - Deputy Commissioner – Specialist Services

Joined in 1983 and made Deputy in December 2014. Has worked in a wide range of operational positions, but has maintained a low public profile.
Perception of him as a “clean slate” could work in his favour.

Chris Dawson

Chris Dawson- CEO — Australian Crime and Intelligence Commission.

Was Karl O’Callaghan’s right-hand man for nearly a decade until moving to the ACIC 2.5 years ago. Joined WAPOL as a cadet in 1976 and made deputy in 2004. Would bring valuable experience back to WA from his time in Canberra.

DFES Commisioner Wayne Gregson

Wayne Gregson

Commissioner - Department of Fire and Emergency Services

Left WAPOL in 2011 after 32 years to become WA’s first Fire Commissioner. Spent many years as a detective and rose to become Assistant Commissioner – Crime.

Coy about whether he wants the job, but remains highly regarded in police circles.

 

               Former Western Australian Labour PremierBrian Burke faces insider trading charges

                                                                        

http://www.news.com.au/national/western-australia/brian-burke-faces-insider-trading-charges/news-story/1617e612c180873e239d48aac5222fac

OCTOBER 5, 2012

FORMER West Australian premier-turned lobbyist Brian Burke and a stockbroker have appeared in court on insider trading charges.

Burke and David John Massey have each been charged with four counts of insider trading but were not required to plead to the charges when they appeared in Perth Magistrates Court today.

The Federal offences were alleged to have occurred six years ago.
It is understood the charges arose from the taping of Burke's telephone calls by the Corruption and Crime Commission and the calls were passed on to Federal authorities.
Massey and Burke have each been released on bail with a $10,000 personal undertaking ahead of their next court appearance on November 23.

Originally published as Ex-Premier faces insider trading charges

Alan Bond, Eddie Obeid, Brian Burke and the other men stripped of their Australia Day honours

http://www.news.com.au/national/alan-bond-eddie-obeid-brian-burke-and-the-other-men-stripped-of-their-australia-day-honours/news-story/91dc3ed9f00f49e71407089aecd211ef

JANUARY 24, 2015

AUSTRALIA Day is about honouring the country’s finest. But some recipients have been stripped of their appointments after proving far from honourable. In their ranks include some of Australia’s most famous faces from corrupt politicians to businessmen and judges.

RELATED: 26 odd things about Australia

                                                      

From Premier to prison ... Brian Burke Picture: SuppliedSource:Supplied

HE former West Australian premier was sentenced to three years jail for stealing more than $122,000 in campaign donations. He served six months. The mastermind behind WA INC — a scheme that cost the state an estimated $600 million. First appointed to the order in 1988, he was stripped of his honour as a Companion of the Order of Australia in April 1995.

                                                                     

                                                                                 Fall from grace ... Marcus Einfeld 

                                                                                                  MARCUS EINFELD

THE one-time Federal Court Judge lost his appointment as an Officer of the order of Australia in 2009, eleven years after his appointment for services to international affairs and human rights. Einfeld was sentenced to three years in jail, with a non-parole period of two years, after pleading guilty to false statements over a $77 driving fine. He later admitted he had lied in court when he claimed the driver of his speeding car was a woman, who later turned out to be dead. He was released from jail in March 2011.

                                                                                        

                                                                    Stripped of medal last year ... former NSW MP Eddie Obeid  

                                                                                                  EDDIE OBEID

THE disgraced former Labor powerbroker was stripped of his Order of Australia Medal (OAM) last year just days before he was due to make a court appearance in relation to an ICAC (Independent Commission Against Corruption) investigation. The former NSW minister is at the centre of several ongoing investigations.

                                                                                           

                                                                                 Found corrupt ... former NSW MP Ian Macdonald. 

                                                                                              IAN MACDONALD

THE former Labor minister was stripped of his OAM last year after being charged with two counts of misconduct in office in November. He resigned from the upper house of the NSW parliament in 2010 after a government report found he misused public funds. He was found corrupt by ICAC in 2013.

                                                                                     

                                                                                      Stripped of status ... Alan Bond. 

                                                                                                ALAN BOND

IN 1997 the former billionaire, Channel Nine owner and America’s Cup hero was sentenced to four years in jail after pleading guilty to defrauding Bell Resources of $1.2 billion. In February of that year he was stripped of his status as an Officer of the order of Australia, 13 years after he received the honour.

                                                                                                            

                                                                                              Resigned from order ... Steve Vizard.

                                                                               

                                                        Returned honours ... Richard Pratt pictured in 2003. 

                                                                  RICHARD PRATT AND STEVE VIZARD

A NUMBER of Australia Day recipients have also voluntarily given up their honours — proving that their can be honour in dishonour.

Late billionaire Richard Pratt returned his Companion of the Order and his Officer of the Order honours in 2008 shortly before being formally charged with providing false and misleading evidence over price fixing.

Former TV funnyman Steve Vizard collected a gong in 1997 for services to the community but resigned from the Order in 2008, three years after being fined $390,000 and banned from being a company director for 10 years for insider trading while a Telstra director.

"JUSTICE", FROM THE CRAZY TO THE DEEPLY DISTURBING 

The thinking behind this blog is really simple: The guilty should be prevented from reoffending and the innocent should not be convicted -- not very complex but often not achieved. 

 

http://stju.blogspot.ie/2006/02/more-on-corrupt-justice-of-western.html?m=1


The spotlight is also thrown on feral law enforcement 

Wednesday, February 22, 2006

MORE ON THE CORRUPT JUSTICE OF WESTERN AUSTRALIA

Swigging a mid-strength beer and munching pizza on Monday night, Andrew Mallard quietly contemplated his freedom after almost 12 years behind bars. There were no high fives or whoops of joy, just a wander outside to look at the night sky unimpeded by prison walls. "I haven't seen the stars for so long," he mused. "Once you're locked in your cell, you can't see much." Just eight hours earlier, Mallard was spending another mundane day of musters and lock-downs, inmate number HO923173 in the maximum security Casuarina Prison. The jail had been his home since 1994, when he was charged with the murder of Perth jeweller Pamela Lawrence in a bloody case that has become infamous in the west. 

At her retirement village cottage, his elderly mother Grace and his steadily loyal big sister Jacqui wept with relief. John Quigley, a prominent former police union lawyer turned Labor MP, and I swapped telephone calls with the pro bono legal team from Clayton Utz and eminent barrister Malcolm McCusker, QC, who also worked on the case for free. A documentary team, filming the final scenes for an ABC television special, captured the long-awaited first moments of freedom. 

Monday's release came quickly but the road has been long: failed appeals and an exhausting struggle to find new evidence culminated in the discovery in 2002 of a police briefing that showed several key pieces of evidence were not disclosed to the defence at trial, including a forensic test that showing a wrench drawn during Mallard's long police interviews could not have caused Lawrence's injuries. The case was reopened by Attorney-General Jim McGinty but a long [Corrupt Western Australia] Supreme Court appeal was dismissed in 2003. That decision was overturned last November in a unanimous ruling by the High Court, which quashed Mallard's conviction. 

Robert Cock, QC, the Director of Public Prosecutions, had been hell-bent on retrying Mallard, claiming police and prosecutors had done no wrong and had nothing to hide. That was until mid-morning on Monday, when he telephoned McCusker to inform him the murder charge would be withdrawn because there was insufficient evidence to proceed. 

The dramatic end to Mallard's incarceration places him alongside Western Australia's other famous wrongful conviction cases: the Mickelberg brothers, John Button and Darryl Beamish. Most of the key players in those other mysteries were either retired or dead. In Mallard's case, the police and prosecutors have since risen to the top echelons of the state's justice system. 

After being handed a life sentence in 1995, Mallard disappeared down the Supreme Court dock stairs, yelling his innocence and promising, "You have not heard the last of this." He was right. Mallard's name now evokes bitter passions in the Perth legal community, publicly pitting Quigley and the eminent McCusker against Cock, who claimed on Monday that Mallard was still the prime suspect, despite conceding he had no case. 

It has divided the legal clique of Perth, where senior lawyers and judges tend to speak about each other in terms of which year they graduated from the same law school and which college sporting team they represented together. Long-held concerns in defence circles about the cosy relationship between the office of the DPP and police, and the number of ex-crown lawyers appointed to the Supreme Court bench, are the talk of Perth's legal hub at St Georges Terrace. Now that the murder charge has been dropped, all eyes are on a Corruption and Crime Commission investigation, which was launched after a stinging parliamentary speech by Quigley following the High Court decision in November. 

Before entering parliament, Quigley spent 20 years defending police against allegations of corruption and illegality. The outspoken Labor MP's passionate belief in Mallard's innocence turned him from police protector to accuser. He claimed in parliament the controversy amounted to a prima facie case of perverting the course of justice and lined up two assistant commissioners: David Caporn, who runs counter-terrorism and state protection, and Mal Shervill, the boss of specialist crime. Shervill led the investigation into Lawrence's death. Caporn, who would later lead the Claremont serial killer taskforce, was a head detective. 

Before the stormy afternoon of June 23, 1994, when Lawrence was bludgeoned to death in the leafy suburb of Mosman Park, Mallard was one of Perth's many homeless drifters with mental health problems and a penchant for marijuana. He was known to police for petty crimes and, on the morning of the murder, had been in the lock-up for breaking into the apartment of a friend's ex-boyfriend. Detectives arriving at the bloody scene after the mother of two's death found no jewellery or cash stolen, although they were in full view. Lawrence's husband, who had found his dying wife on the shop floor, told police a wallet from her handbag was gone. 

Police decided it was a case of robbery gone wrong. Mallard was one of 136 names on their list of suspects who vaguely fitted a description given by a schoolgirl who'd seen a man in Lawrence's shop. They began checking alibis and kept returning to suspects whose stories did not check out. Mallard, who was under assessment in Graylands Psychiatric Hospital at the time, was deemed to be dishonest because his alibis kept turning out to be stories from days other than the day of the murder. 

He had no history of violence and did not know Lawrence but his odd behaviour led detectives to seize Mallard's clothing, including his only pair of shoes. One drop of blood was found on a boot. It appears detectives were misled by an early laboratory report that suggested it was Lawrence's blood type. It was actually Mallard's own blood from a cut finger. 

Regardless of the blood result, police believed Mallard was suspiciously lying about his alibi. On June 10, 1994, without a lawyer or family member, Mallard followed Caporn, the day he was released from Graylands, into a police interview room, where he stayed for eight hours. What happened in that room is contested by both sides. The DPP's explanation on Monday for dropping the case surrounded the detective's handwritten, unsigned confession, which was admitted at Mallard's 1995 trial but would not be permitted under today's evidence rules. 

After that marathon interview, Mallard was released in the dead of night with no money or accommodation. Unknown to him, his trial lawyer or the 1995-96 appeal lawyers, Caporn had ordered an undercover detective to befriend Mallard and attempt to find evidence, particularly the murder weapon. That officer, codenamed Gary, watched Mallard smoking marijuana (Mallard says Gary supplied the marijuana) and attempted to gain a confession. The secret operation found nothing. A summary of the investigation, among the uncovered evidence found in 2002, revealed that some police believed Mallard was acting strangely but had doubts about his guilt. 

A week later, after a sleepless night in which he was bashed outside a nightclub under the watch of the undercover operation, Mallard was again interviewed off-camera and he drew a Sidchrome wrench. He then went on video for about 20 minutes to clear his name and confirm that he had told the police his theory of what the killer would have done. That video, supported by Caporn's corroborating notes, was the key to a successful prosecution. 

The five judges of the High Court found the conviction a miscarriage of justice because those confessions were unreliable and significant forensic evidence was withheld from the defence. They were critical of the fact that the police held back a raft of evidence (the prosecution knew of some of it) helpful to Mallard's defence. 

In addition to the wrench test and undercover operation, witness statements had been changed to remove crucial facts and a forensic scientist had been asked to alter his report on how the killer could have disposed of the murder weapon. It is not known what information the police made available to the then director of public prosecutions, John McKechnie, QC, or the trial prosecutor, Ken Bates. McKechnie is now a Supreme Court judge and Bates a senior prosecutor who acted as DPP when Cock was recently on sick leave with cancer. 

Cock has said he hopes any non-disclosure by the DPP's office was an oversight and not deliberate. He has also said he believes the police have done nothing wrong and could not see why the CCC investigation was necessary. Cock told the court on Monday he still considered Mallard the prime suspect in the murder despite the lack of evidence to proceed against him. He has been supportive of the police refusal to reopen the case in the face of evidence provided by McCusker relating to other suspects, including a report from an internationally renowned forensic expert. 

It is almost impossible to find senior criminal counsel without some link to this case or its main players. McCusker, Mallard's lawyer, is also the parliamentary inspector of the CCC. Safely ensconced in his mother's retirement village after a fitful night's sleep on a comfortable bed, the lanky, bespectacled Mallard is still coming to terms with his release. Yesterday, as furious words were hurled from both sides, the quietly spoken Englishman vowed to make his supporters proud. His first instinct is to flee the state, wary of police and a system he has grown to mistrust, but he is determined to clear his name before going anywhere. "I need it to be proved irrefutably that I am innocent and that the murderer is still out there," he says. "I have waited a long time. The whole truth will come out in the end." 

Report here

Further comment:

"State Attorney-General Jim McGinty yesterday conceded the case had revealed an "untidy and unfortunate" series of events, saying it was up to the state's corruption watchdog to continue its investigations into the handling of the police inquiries and prosecution. "Nobody can feel satisfied with the way in which the Mallard case has unfolded," Mr McGinty said. "It was an horrendous murder. Nobody has been brought to justice for it and now we have got allegations of improper or corrupt behaviour by police and DPP prosecutors. "I think there is no doubt that this particular case casts a shadow over the way in which the police conducted the investigation and perhaps the way in which the DPP prosecuted this case." Mr McGinty urged police to vigorously investigate any further information that became available. 

Police Deputy Commissioner Chris Dawson was quick to defend his officers yesterday, saying it was important the case did not become a measure of police competence in homicide investigations. Contradicting his statement on Monday evening that police had no intention of re-opening the case, Mr Dawson said unsolved murder cases were never closed." 

(And don't forget your ration of Wicked Thoughts for today)

"JUSTICE", FROM THE CRAZY TO THE DEEPLY DISTURBING 

http://stju.blogspot.ie/2006/02/more-on-corrupt-justice-of-western.html?m=1

The thinking behind this blog is really simple: The guilty should be prevented from reoffending and the innocent should not be convicted -- not very complex but often not achieved. 

The spotlight is also thrown on feral law enforcement 

"JUSTICE", FROM THE CRAZY TO THE DEEPLY DISTURBING 

The thinking behind this blog is really simple: The guilty should be prevented from reoffending and the innocent should not be convicted -- not very complex but often not achieved. 

The spotlight is also thrown on feral law enforcement 

EXECUTIVE SUMMARY

The Corruption and Crime Commission (the Commission) has conducted an inquiry into
 "whether any public officer engaged in misconduct in connection with the investigation
 of the murder of Pamela Lawrence, the prosecution of Andrew Mallard and
 other matters relating to and touching upon these events”.

[1] The Corruption and Crime Commission (the Commission) has conducted an inquiry into "whether any public officer engaged in misconduct in connection with the investigation of the murder of Pamela Lawrence, the prosecution of Andrew Mallard and other matters relating to and touching upon these events”.

[2] Pamela Lawrence was brutally murdered in her shop premises, Flora Metallica, at Mosman Park on 23 May 1994. Following a police investigation, Andrew Mark Mallard was charged with her murder on 17 July that year. He was subsequently convicted and sentenced to life imprisonment. Ultimately, in 2006, an appeal to the High Court of Australia on the grounds of nondisclosure to the defence of relevant material was successful and a new trial was ordered, but because of changes to the law relating to the admissibility of interviews which had not been video-recorded, the Director of Public Prosecutions decided not to proceed with the new trial and Mr Mallard was released from prison, after serving almost 12 years.

[3] Further investigations then undertaken showed that Mr Mallard had not killed Mrs Lawrence, but that her likely killer was one Simon Rochford, then serving a sentence for the murder of his girlfriend, Brigitta Dickens. The morning after he was named in the media as a new suspect in the Pamela Lawrence homicide, Simon Rochford was found dead in his cell from wounds apparently self inflicted. His death is currently being investigated by the Coroner.

[4] Mrs Lawrence was attacked and killed in her shop sometime after 5 pm on 23 May 1994 and was discovered by her husband shortly after 6.30 pm near the rear of the shop. She had suffered extensive head wounds and died while being transported to hospital.

[5] The autopsy was performed by the Chief Forensic Pathologist, Dr Clive Cooke, who reported severe injuries to Mrs Lawrence’s head with at least 12 cuts to the scalp. Under a dissecting microscope he was also able to detect some bluey-green material in some of the lacerations, which were later identified by the forensic chemist, Mr Bernard Lynch, as an oil-based orthopthalmic alkyd enamel paint containing ”Prussian Blue” pigment. Some of her injuries also had a peculiar pattern and the problem became to identify a weapon or instrument which could cause injuries of such pattern.

[6] The blood pattern analysis at the premises indicated that Mrs Lawrence had first been struck near the front of the shop premises, then dragged to the rear and there struck again, where she was left. Some fingerprints and a palm print were found, but analysis of the fingerprints produced no match other than with persons entitled to be present in the shop, such as employees, police and emergency services personnel. The partial palm print found on the top of one of the glass counters could not be matched, as there was no system then available for identifying palm prints. xvi

[7] The forensic examination of the premises failed to uncover any forensic link between the scene and Andrew Mallard, or any other person, and no blood of the deceased was ever found on any of Andrew Mallard’s clothes or possessions. Apart from the nature of the weapon being unknown, the motive for the murder was unclear. Mrs Lawrence’s handbag was not taken, although her purse, containing a small amount of money, had been removed, but a container of cash, visible on a shelf behind the counter, was untouched; no jewellery appeared to have been taken.

[8] The first potential witness to come forward was Miss Katherine Barsden, a school-girl, then aged 13 years, whose mother, Mrs Jacqueline Barsden, worked in Flora Metallica and had left work the previous day at about 3 pm. Miss Barsden said that when being driven home from school by her grandmother shortly after 5pm on 23 May 1994, and whilst their car was stopped by traffic lights in Glyde Street, she had seen a man in the deceased’s shop in an area not usually accessible to members of the public. She said that when the man saw her, he bobbed down, then the traffic lights changed and her vehicle moved on. She gave a description of the head of the person she had seen, including a description of what he was wearing on his head.

[9] In response to an appeal to the public, the police received a number of calls and reports from members of the public nominating a large number of persons who might be of interest to the investigating police. Generally these persons were interviewed, and most were able to provide evidence as to where they were during the relevant period. When this happened, such persons were written off as persons of interest.

[10] The Commission has, however, expressed concern over the failure to follow up information supplied by one Lloyd Harvey Peirce, who informed police that about 6.00pm on 23 May 1994 he had seen a Caucasian male run from the alley behind the jewellery store and cross the road towards the railway station, where he appeared to have an argument with a taxi-driver before running off and subsequently boarding a train for Fremantle. Mr Peirce gave a description of the man he had seen and of his clothing. Mr Peirce was interviewed and a statement obtained, but not signed, and the information he provided was not followed up.

[11] Early in the investigation Andrew Mallard was nominated to the investigating police as a possible person of interest. He was at the time 31 years old. After leaving school he had spent about eight months in the army before a medical discharge, after which he had a number of short-term jobs, had moved interstate, overseas and back again, and was generally unsettled. During the period of the investigation he was twice remanded to the closed ward at Graylands Hospital for assessment under the Mental Health Act 1962 where the Principal Forensic Psychiatrist, Dr Jeremy O’Dea, diagnosed him as suffering from a hypo-manic phase of a Bipolar Mood Disorder, and considered that his cognition appeared intact but his overall social judgment impaired.  

[12] In the period leading up to 23 May 1994, Andrew Mallard appears to have been leading a marginal life. He had no fixed place of abode, but would persuade people to let him stay with them in return for such cannabis as he could obtain. He was receiving social security payments, but was also operating as a “con man”, engaging in petty stealing and substantially living on his wits. He claimed he could speak a number of languages, often declared an interest in Celtic design, spiritualism and related matters, and at other times claimed to be a Highlander, a Viking or a warrior. He had a number of minor convictions, all for traffic matters, apart from two for stealing and one for escape lawful custody.

[13] On the evening of Sunday, 22 May, he committed a burglary in Mosman Park stealing a bicycle and a leather jacket. The burglary was reported to the police and the following day (23 May 1994) Mr Mallard was arrested, charged with the burglary, granted bail and released from the East Perth Lock up at about 3.47pm.

[14] After some delay he caught a taxi to the Mosman Park area. He did not pay the taxi driver, but claimed, falsely, that he would return shortly with some further passengers to go to Fremantle. The taxi driver waited about 20 minutes and then went to the taxi rank near the Railway Station where he took another fare at (according to company records) 5.22pm; Andrew Mallard’s arrival at Mosman Park can be fixed at or around 5pm.

[15] When interviewed, Ms Michelle Engelhardt, at whose unit Andrew Mallard had been staying, said that he did not arrive at her unit until after 6.30pm and Michael Buhagiar, who was at the flat at the time, said much the same thing, although both were not necessarily reliable witnesses. Both witnesses agreed that Mr Mallard and Mr Buhagiar left the flat shortly before 7 pm and took a train to Fremantle. This was confirmed by a Westrail video which shows them on the train at 6.57pm.

[16] A telephone call by Mrs Lawrence to some customers between about 5.10 and 5.20pm established that she was still alive at that time. These times naturally made the police interested in where Mr Mallard had been between about 5pm and 6.40pm.

[17] On the day following Mrs Lawrence’s death, Andrew Mallard was arrested and charged with impersonating a police officer, and was remanded for psychiatric assessment to the closed ward at Graylands Hospital, where he remained until 10 June 1994.

[18] Whilst there Mr Mallard was interviewed by Det Sgt Caporn and Det Emmett in the presence of a nurse on four separate occasions, namely 26, 27, 30 May and 2 June 1994. He gave a number of accounts of his movements during the period from 5pm until 6.30pm, but each alibi given by him when checked by police was unsupported by the witnesses he nominated. Throughout these interviews he consistently denied having any involvement in the murder of Mrs Lawrence, and when a sample of his blood was taken on 2 June 1994 he xviii said, “This will clear me”. Meanwhile analysis of his clothing and possessions produced no evidence of any kind linking him to the crime.

[19] On 10 June 1994, Mr Mallard was taken to the Central Law Courts to answer the charges of larceny and impersonate police officer; he was released on bail. He was then invited by Det Sgt Caporn to come back to Police Headquarters at Curtin House where he was again interviewed over a period of more than nine hours, including breaks, with Det Sgt Caporn asking the questions and the questions and answers being recorded by Det Emmett.

[20] According to Det Emmett’s notes of the interview, Mr Mallard was asked over 15 times what occurred between leaving the taxi and arriving at Ms Engelhardt’s flat. He gave a variety of explanations and at times said that he was confused or simply did not know. After lengthy questioning, none of which elicited any admissions, Det Sgt Caporn put it to him that he may be responsible for the murder, but he emphatically and repeatedly denied this and professed his innocence. Ultimately, under sustained questioning, Mr Mallard said that he went into the shop that night to case it for a burglary, but soon retracted that and again denied murdering Mrs Lawrence. [

21] Some time later he started crying, and then started talking in the third person, saying that the person who murdered Mrs Lawrence was very scared and did not want to get caught. He said this “evil person” hit Mrs Lawrence with a wrench, saw a girl in a car who saw him, ran out the back and threw the wrench into the ocean at North Fremantle. Asked if this “evil person” was him, Andrew Mallard said he was not.

[22] Ultimately, Andrew Mallard became hysterical, there was some physical contact, Det Sgt Caporn was bitten on the inner thigh and the interview was terminated. Mr Mallard was taken to hospital and examined, returned to Curtin House, charged with assaulting Det Sgt Caporn, bailed to appear on 15 June 1994, driven to Fremantle by police and released.

[23] Following his release, Mr Mallard was placed under police surveillance and from 14 to 16 June 1994 inclusive, he was befriended by an undercover police officer (UCO) using the code name “Gary”. The police operation produced no evidence of Mr Mallard’s guilt; he made no admissions to the UCO, and did not lead police to the murder weapon, Mrs Lawrence’s purse, nor any other evidence which could link him to the crime or the crime scene.

[24] Andrew Mallard had been remanded on bail to reappear in court on Wednesday 15 June 1994, but had failed to do so and a bench warrant had been issued for his arrest. Late on Thursday 16 June the undercover operation was terminated and on the morning of Friday 17 June 1994 he was arrested pursuant to the bench warrant and taken to the Major Crime Squad offices at Police Headquarters where he was interviewed by Det Sgt Brandham and Det Carter over a period which, including breaks, extended from 10.30am until nearly 2pm.

[25] During the interview he made a number of inconsistent and contradictory statements and admissions, many of which he retracted in the same interview. Asked directly if he killed Mrs Lawrence, he said he did not mean it, and he only wanted to make her quiet. He said he hit her a number of times with a wrench he had taken from the back shed of her premises, that he had been seen by a young girl in a green sedan or station wagon, that after leaving the store he virtually ran to Stirling Bridge where he threw the wrench into the middle of the river and washed his clothes in salt water to confuse forensic testing.

[26] When asked about the wrench, he said it was a pipe wrench as used for gas bottles from the shed, and he drew a picture of the wrench which he said was rusty, had a ratchet system, and was a Sidchrome. He also drew a sketch of the Flora Metallica premises, but got some of the details wrong. When it was pointed out that there were no gas bottles in the shed, and after inaccurately describing how Mrs Lawrence made her jewellery, he conceded that he had never been in the shed.

[27] He then said that he did not go into the shed, did not murder Mrs Lawrence and had made it all up. He said that he had second-guessed the detail from what he had seen in the media and from what he had heard from people. Asked how he could guess all that detail, he replied: “Maybe I’m psychic….All the things I told you is what I imagine the killer would have done, I got inside the culprit’s head. I got inside the killer’s head”.

[28] His answers were clearly confusing containing, as they did, admissions, retractions, denials, facts which it appeared at the time that only the killer could know and other assertions which were clearly and demonstratively wrong. After a discussion with other officers, it was decided to conduct a video recorded interview to confirm the admissions which he had made.

[29] When asked by the police whether he was prepared to undergo a videorecorded interview, Mr Mallard replied: “I want to be video recorded so that I can be cleared”.

[30] After some preliminary matters, Det Sgt Brandham put a series of leading questions to Mr Mallard about what he had previously said and with which Mr Mallard agreed. Part way through the interview, Mr Mallard again lapsed into the third person format, purporting to describe what he imagined the actual killer would have done or said.

[31] At the end of the interview, Det Sgt Brandham put to Mr Mallard that what he was saying was all made up. Mr Mallard agreed and said it was “….my version, my conjecture of the scene of the crime”.

[32] Following the interview on 17 June 1994, Mr Mallard was detained pursuant to the bench warrant until he was brought before the court on Monday 20 June 1994, and, in the meantime, arrangements were made for him to be readmitted to Graylands Hospital for psychiatric assessment if the court acceded to an application to that effect. For the purposes of that application, Det Sgt Caporn wrote a letter to the Police Prosecutor setting out grounds for the application. The application may well have been justified, but some of the information provided was incorrect or misleading as set out in the body of the report and the Commission has formed the opinion that the preparation of the letter containing such incorrect and misleading information amounted to “misconduct” within the meaning of the CCC Act on the part of Det Sgt Caporn.

[33] When he was brought before the court on 20 June 1994, the court acceded to the police application and Andrew Mallard was remanded to Graylands Hospital for psychiatric assessment. He was effectively out of circulation whilst the police built up their case against him.

[34] At this stage the police had no murder weapon and no description of such a weapon apart from the description and sketch provided by Mr Mallard in his interview of 17 June 1994. On the other hand, some of the wounds sustained by Mrs Lawrence had a particular pattern with some containing a bluey substance identified as paint pigment. Dr Cooke thought that a copper anode, of the type he had been shown as being used in the manufacturing process at Flora Metallica, may have been a possible weapon, and the police went to a number of tool shops, and Dr Cooke himself went through a friend’s tool shed, seeking an instrument capable of causing injuries coinciding with those of the deceased. All these efforts were unsuccessful.

[35] Accordingly on 24 June 1994, a series of tests were conducted striking a pig’s head with an anode, a wrench and an iron bar. None of these proved capable of producing injuries with a similar pattern to some of those sustained by the deceased. Not only were the anodes unwieldy, but large amounts of copper residue was left in the injuries, unlike in Mrs Lawrence’s wounds, and the traces of blue left in the pig’s head were the result of a chemical reaction, not traces of blue pigment such as is present in blue paint.

[36] Because Andrew Mallard had said in an interview with police that the third person responsible for the murder would have washed his clothes in the salt water of the Swan River to remove all traces of blood, the police arranged for the Forensic Chemist, Mr Lynch, to carry out tests to determine whether his clothes had, in fact, been immersed in salt water. Mr Lynch carried out such tests in conjunction with other tests, determined that they had not, and reported accordingly; but at Det Sgt’s Shervill’s request, Mr Lynch prepared a fresh report, omitting all reference to such salt water testing. It is the Commission’s opinion that Det Sgt Shervill’s request to Mr Lynch to amend his report in this way amounted to “misconduct” within the terms of the CCC Act.

[37] In 1994, the practice was for witness statements to originally be taken in writing by one of the police officers, checked by the witness and, if correct, signed by the witnesses and witnessed by one of the police. Then when the Brief of Evidence was being prepared, the statement would be checked with the witness in the light of subsequent investigations, and any appropriate alterations made with the approval of the witness. The statement was then typed, checked by the witness and, if correct, signed and witnessed as before.

[38] This procedure was not inappropriate provided that any relevant changes were notified to the defence so that, at the trial, the recollection of the witness could be tested by cross-examination. However, in this case material changes were made to the statements of important witnesses, yet only the final statements were included in the Brief of Evidence and served on the defence.

[39] Katherine Barsden was the 13 year old school girl who described seeing a man in the Flora Metallica shop at what must have been shortly before the time of the murder. Her original description of his headwear was “a gypsy type scarf….an orangy type border around the edge. The rest of the scarf was mixed coloured with blue, green and a cream colour”, and the sketch of the scarf she had drawn on the morning following the murder indicated a solid orangy-red border surrounding colours of “blue, green and blue/silver/white”, but in her final statement, the headwear only “looked like a gypsy type scarf”, and the rest of the scarf (apart from the border) became “mixed coloured and patterned”. In the meantime she had been shown Mr Mallard’s cap, which it was said he at times wore back to front, and her later statement stated that the cap was the same colours as what she saw the man in the shop wearing. That cap was red, yellow and black with a gold braid around the edge. The alterations to Miss Barsden’s statement were written on her original statement by Det Sgt Shervill, and the final statement made no reference to the sketches she had drawn on 23 and 24 May 1994, her visit to the police artist and the identikit picture drawn by him from her description, and the fact that on 3 June 1994 she had failed to identify the person she had seen from a photo display which included Andrew Mallard.

[40] Michelle Engelhardt, in whose flat Mr Mallard was staying at the time, said in her original statement made on 29 May 1994, that when she returned to her flat (with Michael Buhagiar) at about 3pm on 23 May Mr Mallard’s cap was hanging on a hook behind the door, and that when he arrived home shortly before 7pm, he was not wearing any kind of headwear, but in her final statement, all reference to the cap being on the hook behind the door was omitted, the description of the cap was changed from gold coloured to “orange, gold, some sort of intricate design and looked dirty”, and she was not sure whether he was wearing his cap when he came in.

[41] Three other witnesses who had seen someone in the area before or at about the time of the murder also had their statements altered in respect of what the persons they saw were wearing, and the persons described in the altered statements better corresponded with Andrew Mallard or the person seen in the shop by Miss Barsden.

[42] Each of these witnesses were interviewed a number of times by Det Sgts Caporn and Shervill between the making of their original statements and the dates of their final statements. The final statements were the only ones which were included in the Brief of Evidence or were supplied to the defence. Each of these alterations strengthened the case against Andrew Mallard because although the persons as described in their original statements could not have been Andrew Mallard, the persons as described in the final statements could have been him, and this is how the evidence of these witnesses was presented at the trial.

[43] The Commission is satisfied that the changes were brought about either 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, and demonstrates a pattern which cannot have been an accident or coincidence.

[44] The Commission’s opinion is that this process constituted “misconduct” within the terms of the CCC Act on the part of Det Sgt Shervill and Det Sgt Caporn.

[45] In the Major Crime Running Sheets, Det Sgt Shervill generally recorded that these various statements had been amended to exclude hearsay and irrelevant material or similar, but the material altered or omitted was not hearsay or irrelevant, and so the entries were false and in the opinion of the Commission, the making of such false entries amounted to “misconduct” within the terms of the CCC Act.

[46] On 19 July the police met with the Director of Public Prosecutions (Mr John McKechnie QC, now the Honourable Justice McKechnie of the Supreme Court) to seek his advice as to whether there was sufficient evidence to charge Mr Mallard with wilful murder. No notes were taken of the meeting but one of the officers outlined the evidence, and the video of 17 June 1994 was shown. Mr McKechnie believes he was not told of the pig’s head testing of the wrench.

[47] His opinion was that there was sufficient evidence to charge Mr Mallard, but that it would be a difficult case, and would depend on whether the confessional material was admitted, and whether the jury accepted it.

[48] After the meeting, the police went to Graylands Hospital, arrested Andrew Mallard and charged him with the wilful murder of Pamela Lawrence.

[49] Following the arrest of Andrew Mallard, Det Sgt Shervill prepared a Comprehensive Summary of Facts, which he forwarded to the DPP under cover of a letter dated 21 October 1994. The Comprehensive Summary was a 30-page document outlining Det Sgt Shervill’s assessment of the evidence, the strengths and some of the weaknesses of the prosecution case.

[50] It quoted from statements and from the accused’s interviews, including that the accused had claimed that the weapon used was a wrench. It included xxiii references to his nomadic life-style, his psychiatric treatment, bizarre behaviour, and the undercover operation, but made no reference to the salt water testing or the material alterations to the statements of a number of witnesses.

[51] It stated that the murder weapon had not been identified, that the pig’s head testing had excluded the anode as the weapon, and continued: “During the experiment, a crescent wrench was also tested, which inflicted dissimilar wounds to those sustained by Mrs Lawrence”.

[52] In support of the reliability of the confessional material, it contained a list of “twelve things which only the killer would know”, but made no reference to the numerous errors of Mr Mallard. The final (but not the original) statements of the witnesses and expert reports were attached, but there were no statements or reports relating to the pig’s head test.

[53] Further to the duties of disclosure at common law, and Guidelines issued by the DPP in 1992, further Guidelines directed to the duties of police as well as prosecutors were published on 14 December 1993 and reproduced in the Police Gazette of 9 March 1994. Those Guidelines required the delivery to the DPP as soon as possible after Committal of: “all documentation, material and other information held by any police officer concerning any proposed prosecution witness which may be of assistance or interest to either the prosecution or the defence”, and required certification by a police officer that such had been done.

[54] The Commission’s opinion is that the failure to provide the prior statements of the witnesses, Mr Lynch’s original report, and details of the unsuccessful attempts to locate a weapon capable of inflicting wounds similar to those found on Mrs Lawrence amounted to a failure to comply with the requirements of the Guidelines and constituted “misconduct” on the part of Det Sgt Shervill.

[55] The prosecution of Andrew Mallard was allocated by the DPP’s office to Mr Kenneth Bates, a senior prosecutor, and Mr Patrick Hogan was briefed as defence counsel by the Legal Aid Commission.

[56] The preliminary hearing was held in November 1994 and Mr Bates referred throughout to the murder weapon as a “metal object”. Although Mr Mallard’s sketch was tendered as an exhibit, it was not shown to Dr Cooke when he was in the witness box and he was asked no questions about whether such, or any other, wrench could have caused Mrs Lawrence’s injuries.

[57] At a voir dire1 hearing prior to the trial, Mr Hogan sought to have the evidence of the interviews excluded, but was unsuccessful. Subsequently, an 1 A hearing to decide preliminary issue so the court can determine the question of whether evidence should be admitted. xxiv application was made to adjourn the trial so that senior counsel could be engaged to appear for the accused, but this application was refused.

[58] The trial commenced on 5 November 1995. Mr Kenneth Bates (Mr Bates) opened, and conducted the case, on the basis that the murder weapon was a wrench as drawn by the accused. He relied on the so-called confessions of 10 and 17 June 1994, which he claimed were corroborated and supported by independent witnesses, the examination of the crime scene, the post-mortem examination by Dr Cooke, that the confessions detailed many things which he claimed only the killer would know of, that witnesses had seen a person fitting Mr Mallard’s description in the vicinity shortly before the time of the killing (these were the witnesses whose descriptions in their statements of the person seen had been altered, although that was not known to Mr Bates) and the observations of Miss Barsden.

[59] When Dr Cooke gave evidence, Mr Bates asked him about the pig’s head testing of the anode, and Dr Cooke explained why that could not be the murder weapon, but he failed to ask Dr Cooke any questions about a wrench, and in particular, the wrench sketched by the accused in his interview – the item he was relying on as the weapon.

[60] In these circumstances, to run the case on the basis that a wrench as drawn was the murder weapon, but at the same time, to fail to put the drawing to Dr Cooke when he was giving evidence and to ask him whether the deceased’s injuries were consistent with the use of such an instrument, is such a fundamental omission that the Commission has difficulty in accepting that it was an accident or due to an oversight. If Mr Mallard could not identify the murder weapon, it constituted a fundamental flaw in the reliability of his socalled confessions.

[61] Moreover, having been informed of the pig’s head testing of a wrench by the Comprehensive Summary of Facts authorised by Det Sgt Shervill, it was Mr Bates’ duty to disclose this fact to the defence or to ensure that it had been disclosed by the police. He said he read about it in the Comprehensive Summary when he first received the papers, but subsequently overlooked it.

[62] The Commission has formed the opinion that in conducting the trial as he did, and in failing to disclose to the defence the result of the pig’s head testing of the wrench, there was “misconduct” on the part of Mr Bates.

[63] In due course, the jury found Andrew Mallard guilty and on 21 December 1994, he was sentenced to life imprisonment with a minimum term of 20 years. An appeal to the Court of Criminal Appeal and an application for special leave to the High Court were both unsuccessful.

[64] Notwithstanding his conviction, Andrew Mallard continued to maintain his innocence and, ultimately, one of his supporters, Ms Colleen Egan, a prominent Perth journalist, enlisted the aid of Mr John Quigley, a member of Parliament and a solicitor. On reading the transcript of the trial, Mr Quigley became convinced that something was wrong, that there had been an xxv undercover operation which had not been disclosed, and that Andrew Mallard had not had a fair trial.

[65] In due course Mr Quigley prepared a clemency petition which he delivered to the Attorney General on 23 June 2002, following which the latter arranged for Mr Quigley to have access to the DPP’s files. Mr Bates was asked to prepare the files for inspection and, on doing so, re-read the Comprehensive Summary of Facts, including the reference to the pig’s head testing of the wrench, which he immediately drew to the attention of the DPP (Mr Robert Cock QC) with the explanation that it had previously been inadvertently overlooked.

[66] Mr Quigley was then able to re-draft the petition which, in accordance with the relevant legislation, was referred to the Court of Criminal Appeal for the whole case to be heard as if it were an appeal.

[67] This “Clemency Appeal” to the Court of Criminal Appeal was dismissed; however an appeal to the High Court was successful (15 November 2005) on account of the material non-disclosure. The verdict was set aside and a new trial ordered, the Court leaving it to the DPP to determine whether the appellant should in fact be re-tried.

[68] Because of changes to the law since 1995, interviews with suspects which had not been video recorded were no longer admissible in evidence, so it was decided to discontinue the prosecution, and this was formally done on 20 February 2006 when a Notice of Discontinuance was filed in the Court. Mr Mallard was thereupon released from prison.

[69] Following the discontinuance, the Commissioner of Police instigated a review of the original investigation by the Special Crime Squad, which was later extended into a full Cold Case Review to review all evidence relevant to the death of Mrs Lawrence. That review concluded on the evidence that the person most likely to have killed Mrs Lawrence was one Simon Rochford, then serving a sentence for the murder of his girlfriend, Brigitta Dickens, who had been killed by being struck on the head with a weight collar attached to a wooden handle on 15 July 1994, seven weeks after the death of Mrs Lawrence.

[70] On the morning of 19 May 2006, after being named the previous evening in the television news as the new suspect for the murder of Mrs Lawrence, Simon Rochford was found deceased in his cell at Albany Prison, as the result of wounds, apparently self-inflicted. His death is currently the subject of an Inquest by the Coroner.

[71] There were a number of factors which contributed to Andrew Mallard being convicted of a crime which he did not commit.

These included:

1. the admissions and confessional statements which he made in his various interviews with police, both directly and in the third person;

2. these false confessions can in the opinion of the Commission only be explained by the mental illness which he was suffering at the time;

3. his failure to provide a verifiable alibi;

4. the failure of the police to properly assess the reliability of the confessional material due it would seem, to too much attention being paid to the so-called “twelve things only the killer could know” and insufficient attention to the number of matters which he got wrong;

5. the altered statements and the failure of police to disclose the earlier versions of such statements, especially those of Miss Barsden and Ms Engelhardt, to the defence;

6. the non-disclosure of the salt water testing of Mr Mallard’s clothes and the pig’s head test of the wrench;

7. the conduct of the prosecution; and

8. the failure of anyone to recognise the similarities between the injuries to Mrs Lawrence and those to Ms Dickens.

[72] A further matter investigated by the Commission as a “matter arising out of or in connection with” the conviction and appeals of Andrew Mallard was a complaint by police that Mr John Quigley MLA had threatened the UCO that he would expose his identity unless he cooperated with those agitating for a review of Andrew Mallard’s conviction by providing a statement about his part in the undercover operation. At the time Mr Quigley believed that the UCO had supplied cannabis to Andrew Mallard.

[73] It was alleged that the threats were made in a series of messages left on the UCO’s mobile telephone between 18 and 23 June 2002, when he was requesting the UCO to call him back, but the UCO was failing to do so. Those messages were lawfully recorded and the Commission has had the opportunity to listen to the tapes which were played during the Commission’s hearings in the presence of Mr Quigley.

[74] Section 338A of the Criminal Code requires that for an offence against that section there must be, inter alia, an “intent to …. compel” a person to do something that person is not legally required to do (in this case make a statement). The courts have held that the word “compel” is a very strong term involving an overbearing or constraining of the will, as opposed to mere persuasion; and although Mr Quigley’s calls were frequent and persistent, and cannot be condoned, the Commission is not satisfied that they displayed any more than an intent to persuade. Accordingly the Commission is not satisfied that Mr Quigley engaged in serious misconduct within the terms of the CCC Act in leaving the telephone messages.

[75] The Commission has formed a number of opinions as to misconduct and made a number of recommendations which are set out in Chapter 14 of the Report.

[76] The opinions as to misconduct may be summarised as follows.

1. That Det Sgt Caporn engaged in misconduct in writing the letter to the Police Prosecutor dated 17 June 1994 containing incorrect and misleading information.

2. That Det Sgt Shervill engaged in misconduct in requesting Mr Lynch to amend his reports by deleting all reference to the salt water testing. 3. That Det Sgt Shervill engaged in misconduct in bringing about the alterations to the statements of various witnesses without any reference to their earlier recollections.

4. That Det Sgt Caporn engaged in misconduct in bringing about the alterations to the statements of various witnesses without any reference to their earlier recollections.

5. That Det Sgt Shervill engaged in misconduct in making false entries in the Running Sheets relating to the amendments to the witnesses’ statements.

6. That Det Sgt Shervill engaged in misconduct in failing to disclose to the defence the original statements of the witnesses including Mr Lynch’s original report and details of the unsuccessful attempts to locate a weapon capable of inflicting wounds similar to those found on Mrs Lawrence. 7. That Mr Kenneth Bates engaged in misconduct in running the trial on the basis that a wrench as drawn by Andrew Mallard was the murder weapon,but, at the same time, failing to put Andrew Mallard’s drawing to Dr Cooke and asking whether the deceased’s injuries were consistent with the use of such an instrument.

8. That Mr Kenneth Bates engaged in misconduct in failing to disclose to the defence the pig’s head testing of the wrench or ensuring that it had been disclosed by the police.

[77] The recommendations are detailed below.

1. That the Commissioner of Police give consideration to the taking of disciplinary action against Assistant Commissioner Malcolm William Shervill and Assistant Commissioner David John Caporn.

2. That the Director of Public Prosecutions gives consideration to the taking of disciplinary action against Mr Kenneth Paul Bates.

3. That consideration is given by the Commissioner of Police to making special provision for the interviewing by investigating police of mentally ill suspects.

4. That whenever there is legislation, fresh authoritative case law, or DPP guidelines which relate to the conduct of criminal investigation or the admissibility of evidence in such cases, senior police officers affected by such matters be required to attend formal seminars or meetings at which they can be made familiar with such matters.

5. That whenever the police obtain advice from the Office of the Director of Public Prosecution such advice be furnished in writing setting out, at least, the material considered, the opinion and the grounds upon which such opinion is based; or in cases of urgency, a detailed contemporary note should be made, preferably by the DPP officer or his secretary, and also by the police, setting out the matters specified.

6. That Mr Andrew Mallard gives consideration to raising a complaint with the Legal Practitioners Complaints Committee (LPCC) regarding the conduct of the trial by Mr Bates. [Division 3 of the Legal Practice Act 2003 deals with complaints made about legal practitioners. Section 175(2) specifies who can make a complaint to the LPCC including the Attorney General, the Legal Practice Board, the Executive Director of the Law Society, any legal practitioner or any other person who has had a direct personal interest in the matter].

[78] Finally the Commission acknowledges the efforts and expertise of those persons who were instrumental in securing justice and vindication for Andrew Mallard, especially Ms Colleen Egan, journalist, Mr Quigley MLA, Mr Malcolm McCusker QC, and Clayton Utz, solicitors, who acted pro bono.

CHAPTER ONE INTRODUCTION

[1] Following a notification pursuant to section 28 of the Corruption and Crime Commission Act 2003 (‘CCC Act’) from the Commissioner of Police, a complaint pursuant to section 25 from Mr John Quigley MLA, Member for Mindarie,1 a degree of public disquiet expressed in the media and elsewhere, and a preliminary investigation by its own officers, the Commission determined pursuant to section 33 to conduct an inquiry into: whether any public officer engaged in misconduct in connection with the investigation of the murder of Pamela Lawrence, the prosecution of Andrew Mallard and other matters related to and touching upon these events.

[2] Mrs Pamela Lawrence was brutally murdered in her shop premises, Flora Metallica in Glyde Street, Mosman Park on 23 May 1994. Following a police investigation, Andrew Mallard was charged with her murder on 17 July that year. He was subsequently convicted and sentenced to life imprisonment and he served approximately twelve years of that sentence.

[3] Ultimately on 15 November 2005, the High Court of Australia held that Andrew Mallard had not received a fair trial because of the non-disclosure of certain material known to the police at the time of the trial, which was capable of giving rise to doubts as to his guilt, and ordered a new trial.

[4] For reasons detailed in Chapter 10 of this report, the DPP determined not to proceed with the new trial and Mr Mallard was released from prison. Subsequent investigations established that Mrs Lawrence had not been killed by Mr Mallard, but that the likely offender was one Simon Rochford, since deceased, see Chapter 11.

[5] The Commission has therefore directed its inquiries to a number of issues including the conduct of the police investigation, what material relevant to the issues was known to the investigating police, the DPP’s office, the prosecutor or any other public officer at the relevant time, the duty of disclosure and the responsibility of police and other officers to make such disclosure, the procedures in place in 1994 in this regard, whether there have been any changes since or whether any further changes are still desirable and whether in relation to these matters the Commission is of the opinion that any public officer engaged in “misconduct” as defined by the CCC Act.

[6] Because persons the subject of investigation included a currently serving Supreme Court Judge, a member of Parliament, senior public prosecutors and senior police, the Government appointed a person from outside the State, namely the Honourable John Dunford QC, a retired Judge of the Supreme Court of New South Wales as Acting Commissioner to conduct the inquiry. The Commission appointed Mr Jeremy Gormly SC of the New South Wales 2 Bar and Mr Peter Quinlan of the Western Australian Bar as Counsel Assisting the Inquiry.

CHAPTER 2 JURISDICTION AND PROCEDURE

Introduction

 [7] One of the Commission’s functions is to consider “misconduct” by “public officers”. The term “public officer” is defined in section 3 of the CCC Act by reference to section 1 of the Criminal Code which defines “public officer” as including police officers, members of either House of Parliament, public service officers or employees within the meaning of the Public Service Management Act 1994 (‘PSM Act’) and any person holding office under, or employed by the State of Western Australia whether for remuneration or not. 2.1 Misconduct

[8] Section 4 of the CCC Act states that: Misconduct occurs if — (a) a public officer corruptly acts or corruptly fails to act in the performance of the functions of the public officer’s office or employment; (b) a public officer corruptly takes advantage of the public officer’s office or employment as a public officer to obtain a benefit for himself or herself or for another person or to cause a detriment to any person; (c) a public officer whilst acting or purporting to act in his or her official capacity, commits an offence punishable by 2 or more years’ imprisonment; or (d) a public officer engages in conduct that — (i) adversely affects, or could adversely affect, directly or indirectly, the honest or impartial performance of the functions of a public authority or public officer whether or not the public officer was acting in their public officer capacity at the time of engaging in the conduct; (ii) constitutes or involves the performance of his or her functions in a manner that is not honest or impartial; (iii) constitutes or involves a breach of the trust placed in the public officer by reason of his or her office or employment as a public officer; or 4 (iv) involves the misuse of information or material that the public officer has acquired in connection with his or her functions as a public officer, whether the misuse is for the benefit of the public officer or the benefit or detriment of another person, and constitutes or could constitute — (v) an offence against the “Statutory Corporations (Liability of Directors) Act 1996” or any other written law; or (vi) a disciplinary offence providing reasonable grounds for the termination of a person’s office or employment as a public service officer under the “Public Sector Management Act 1994” (whether or not the public officer to whom the allegation relates is a public service officer or is a person whose office or employment could be terminated on the grounds of such conduct). .

[9] Section 80 of the PSM Act provides that an employee subject to that Act who, inter alia, contravenes any provision of that Act, public sector standard or code of ethics, commits an act of misconduct or is negligent or careless in the performance of his or her functions, is guilty of a breach of discipline (“misconduct” is not defined in the PSM Act); and section 83 provides that a breach of discipline may be “minor” or “serious”.

[10] Where a “serious” breach is established, a range of available penalties are provided by section 86(3)(b), including dismissal. The PSM Act provides no definition or guidance as to what constitutes a “serious” breach of discipline. It is the Commission’s opinion that the breaches identified in this report were “serious” because, particularly in combination, they had the effect of depriving an accused person of a fair trial on a charge carrying a mandatory sentence of life imprisonment.

[11] Thus, before the Commission forms an opinion about misconduct involving section 4(d)(vi) of the CCC Act there must be an identifiable breach of discipline under the PSM Act, or its equivalent in the case of persons whose employment is not governed by that Act, it must be a “serious” breach within section 83 of the PSM Act and it must be such that it could provide reasonable grounds for dismissal under section 86(3)(b) of that Act. The Commission does not need to show that it would result in dismissal.

[12] In relation to police officers, section 9 the Police Act 1892 authorises the Commissioner of Police to make rules, orders and regulations for the general government and discipline of members of the Police Force. This has been done by the Police Force Regulations 1979 (‘Police Regulations’) which have been amended from time to time. As at 1994-5 such regulations included the following: 5 402 Every member or cadet shall – (a) … (b) promptly and correctly carry out all duties appertaining to his office, or any other duty he is lawfully directed to perform; and (c) in due course and at proper times comply with, and give effect to, all enactments, regulations, rules, orders and administrative instructions made or issued for his guidance in the performance of his duties … 605 (1) A member or cadet shall – (a) except for good or sufficient cause, promptly and diligently attend to and carry out anything which is his duty as a member or cadet; (b) perform and carry out any duty in a proper manner ... 606 A member or cadet shall not – (a) knowingly make or sign any false statement in any official document or book; (b) wilfully or negligently make any false misleading or inaccurate statement …

[13] A breach of any of these provisions constitutes a disciplinary offence under section 21 of the Police Act which also provides for a range of penalties including discharge or dismissal from the Force; but section 4(d)(vi) of the CCC Act requires any such conduct to be assessed by reference to the criterion laid down in the PSM Act.

[14] Section 9 of the PSM Act requires all employees subject to that Act to comply with any Act governing their conduct and so it follows that a failure to comply with any provisions of the Police Regulations constitutes a breach of discipline within section 80 of the PSM Act.

[15] Similarly the Director of Public Prosecutions Act 1991, section 24 authorises the DPP to issue Guidelines to be followed in the performance of the Director’s Functions, and a breach of such Guidelines by a prosecutor would constitute “misconduct” within the terms of section 80(c) of the PSM Act.

[16] Section 3(1) of the CCC Act defines “serious misconduct” as misconduct of a kind described in section 4(a)(b) or (c). Section 27A contains particular provisions relating to allegations of misconduct other than serious misconduct relating to members of Parliament. These provisions are further considered in Chapter 13.

[17] It would appear to be beyond question that breaches of section 4(a) or (b) necessarily involve a mental element or mens rea by reason of the inclusion of the word “corruptly” and the reference in paragraph (c) to an offence implies that the ordinary principles of criminal responsibility would apply in cases coming within that paragraph. 6

[18] The position under paragraph (d) is not so clear. It has been suggested2 by analogy to the common law criminal offence variously known as misconduct in public office, misbehaviour in public office or breach of public trust, that the act or omission must be wilful and intentional: but paragraph (d) is not specifically directed to criminal conduct and it has been said in New South Wales in relation to a similar provision3 that “breach of public trust” is not to be confined to conduct which could constitute the common law offence of misconduct in public office.4 Accordingly the Commission is of the opinion that although generally the element of “misconduct” under section 4(d)(iii) will require that the conduct or omission be wilful and intentional, that will not necessarily always be the case, such as where a public officer with a serious responsibility to fulfil fails to do so due to lack of attention or lack of diligence, akin to gross negligence. As McHugh JA said in G J Coles and Co Limited v Retail Trade Industrial Tribunal: 5 A public office holder assumes the burdens and obligations of the office as well as its benefits. By accepting appointment to the office, he undertakes to perform all the duties associated with that office and, as long as he remains in office, he must perform all its duties. Persons with serious responsibilities on account of their office cannot disregard their responsibilities by inattention or lack of diligence and the careless oversight of relevant important material cannot be relied on as an excuse. Such an omission will in an appropriate case constitute or involve a “breach of the trust placed in the public officer by reason of his or her office or employment as a public officer” within section 8(d)(iii).

[19] In respect of those instances when the conduct must be wilful and intentional it was submitted that this means that the person concerned must direct his or her mind to whether the act or omission in question does as a matter of law constitute an offence or a disciplinary offence.

[20] The Commission rejects such submissions. What must be wilful and intentional is the physical act in question or the failure to do a physical act in the sense that it is not accidental or the result of compulsion. Just as the criminal law requires that the criminal act or omission be deliberate and voluntary, so must “misconduct” under the Act; and just as ignorance of the law is no excuse for a criminal act, so ignorance of one’s obligations is no answer to an assessment of misconduct. Public officers who have duties and responsibilities have a duty to ascertain and learn what those duties and responsibilities are, and carry them out.

CHAPTER THREE BACKGROUND

3.1 The Murder

[40] The attack which led to the death of Pamela Lawrence on 23 May 1994 was a brutal one. She was struck on the head a number of times with a blunt object in her premises known as Flora Metallica, a jewellery shop owned by her in Glyde Street, Mosman Park. Later investigations revealed that she had been struck in two separate locations in the shop, firstly towards the public area of the shop, after which she was dragged to the rear of the shop where she was struck again. Her attacker left her unconscious and barely alive in a pool of blood.

[41] Mrs Lawrence’s husband, Peter Lawrence, unable to raise her by phone and concerned by her late arrival home during the huge storm that day11, drove the few minutes to the shop. He arrived just after 6.30pm and found her unconscious and grievously injured. He called 000 at 6.37pm. The police and ambulance arrived shortly after. By the time the ambulance arrived at Sir Charles Gardiner Hospital Mrs Lawrence had ceased breathing and had no cardiac output. She was pronounced life extinct at 7.15pm on 23 May 1994.

[42] A major police investigation led by members of the Major Crime Squad was commenced. The crime scene seemed not to point to the identity of the offender. 3.2 Andrew Mallard [43] In due course Andrew Mark Mallard was investigated. When first located by police, Mr Mallard was already in Graylands Hospital for a psychiatric assessment on remand by a court, following a relatively minor offence. He had a history of petty offences, was a drug user, particularly of cannabis, and appeared to be mentally disturbed. When initially questioned he gave inconsistent accounts as to his whereabouts during what was thought to be the critical hour and a half during which Mrs Lawrence was attacked.

[44] There was no forensic evidence linking Mr Mallard to the crime. The small number of fingerprints found at the scene did not match Mr Mallard’s and no evidence of Mrs Lawrence’s blood could be found in any of his clothing or possessions, which were extensively tested.

[45] He was interviewed a number of times in circumstances detailed later in this report, particularly on 10 and 17 June 1994, in which interviews he appeared to make and retract what could be construed as confessions, and between which dates he was the subject of surveillance and an undercover operation. On 18 June 1994, he was remanded for psychiatric assessment to the secure ward at Graylands Hospital on another unrelated minor charge. 12

 [46] On 18 July 1994 the police learned that Mr Mallard was to be released to an open ward at Graylands Hospital from which he would be free to leave, whereupon they sought urgent advice from the Director of Public Prosecutions (Mr John McKechnie QC, now the Honourable Justice McKechnie of the Supreme Court), about the sufficiency of the case against Mr Mallard. After a conference with Mr McKechnie the following morning (19 July 1994)12, Mr Mallard was arrested that afternoon and charged with the wilful murder of Mrs Lawrence. [47] He was tried before Justice Murray and a jury13, convicted, and on 21 December 1995 was sentenced to life imprisonment with a twenty year minimum term. He had been in custody since his arrest and remained so until released early in 2006.

[48] An appeal to the Court of Criminal Appeal14 essentially on the admissibility of the interviews, was unsuccessful, as was an application for special leave to appeal to the High Court of Australia15. 3.3 The Clemency Petition [49] Following the unsuccessful appeals, various people, in particular members of Mr Mallard’s family, continued to advocate on Mr Mallard’s behalf, and as a result of extensive work which will be referred to later, in 2002 Mr Mallard petitioned the Governor for the exercise of the Royal Prerogative of Mercy pursuant to Section 140 of the Sentencing Act 1995. In accordance with the Act, the petition was referred by the Attorney General to the Court of Criminal Appeal (“the Clemency Appeal”).

[50] That appeal was unsuccessful16 but a further appeal to the High Court of Australia17 succeeded because of the non-disclosure at the time of the original trial of certain material known to the police and/or the prosecutor which could raise doubts about Mr Mallards guilt. The Court ordered that his conviction be set aside and there be a new trial, but indicated it was for the DPP to determine whether or not to proceed with such further trial.

[51] For reasons detailed in Chapter 10, the DPP decided not to proceed with the new trial. Mr Mallard was released from Casuarina Prison in February 2006 but remained liable to be retried if fresh evidence became available against him.

[52] Meanwhile, the Commissioner of Police ordered a review of the original investigation and ultimately a full Cold Case Review by the Special Crime Squad. After reviewing all the evidence, the Special Crime Squad concluded that Andrew Mallard had not killed Mrs Lawrence but that the likely offender was one Simon Rochford who was serving a sentence for the murder of his girlfriend, Brigitta Dickens, on 15 July 1994, seven weeks after the murder of Mrs Lawrence, and who was found dead in his prison cell on 19 May 2006, 13 apparently as the result of self-inflicted wounds the day after he was named in the media as a new suspect.

CHAPTER NINE THE TRIAL OF ANDREW MALLARD

 9.1 Allocation of Prosecutor

 [481] Following the receipt by the DPP’s office of the letter of 21 October 1994 with the Comprehensive Summary of Facts and the statements of the witnesses, the prosecution was allocated to Mr Kenneth Bates288.

 [482] Mr Bates was a senior and experienced prosecutor, although this was, at the time of trial, only his third murder trial. At the time of allocation, he had not done any.289 In accordance with the system and practice at the time, Det Sgt Shervill assisted Mr Bates in a role which might, in other situations, have been described as that of an instructing solicitor. He had a detailed knowledge of the matter, he was familiar with the persons involved, he was knowledgeable about the issues and he had been involved in the drafting of many of the documents.

 [483] There were numerous conferences between Det Sgt Shervill and Mr Bates and later with Mr Anthony Elliott, who was another DPP barrister, appointed as junior counsel to Mr Bates for the purposes for the trial290.

[484] Meanwhile, Mr Patrick Hogan, who up until that stage had not acted in any murder trials, was briefed by the Legal Aid Commission to appear for Mr Mallard. By the time of the trial he had acted in one previous murder trial, ironically that of Simon Rochford. 9.2 Receipt of Brief

 [485] Mr Bates was briefed on 28 October 1994 and received the letter of 21 October with the Comprehensive Summary of Facts shortly after that date. It was understood when he received the brief that he was expected to appear not only at the trial but also at the committal or preliminary hearing already fixed for five days starting 16 January 1995. It ultimately ran for three days (16 - 18 January).

[486] In Section 86 Submissions on behalf of Mr Bates, attention was drawn to his evidence as to the circumstances in which he read the Comprehensive Summary, namely whilst on holidays and for the purpose of obtaining an overview of the case291; and it was suggested that he should have been able to assume that everything contained in the Comprehensive Summary would also be contained in the Brief of Evidence. Even if that were so as a general rule, one would expect it to occur to him on reading the Brief, that there was no evidence, apart from the inconsistent, and at times retracted, confessional material as to what was the murder weapon, and the obvious thing to do in those circumstances was to have another look at the Comprehensive Summary to see what it had to say on the subject. In any event, it was 112 obvious that the purpose of the Comprehensive Summary was to assist him and, as per the covering letter, “to enable an assessment to be made”.

 [487] Whether he read it on holidays or elsewhere, it was his responsibility to read it carefully and pay attention to what it said. The Commission also finds it surprising that when preparing for the trial, he did not re-read the Comprehensive Summary to refresh his recollection for an overview of the case and as a “check list” to see if there was anything he was overlooking. It cannot be said that he was under any obligation to do so, but the Commission believes that it is what careful counsel would commonly do. [488] At a private hearing (30 July 2007), Mr Bates said that on reading the papers he formed the view that it was a complex and difficult matter292 due to the large number of witnesses and the nature of the confessional material including that some of it was in the third person, it was later retracted, and the alibis had turned out to be fake. Before the Preliminary Hearing, he identified the reliability of the confessions as being a central issue in the trial293. [489] Mr Bates said that prior to the Preliminary Hearing, he became aware that there were also psychiatric issues concerning the reliability of the confessions294 and it has been submitted that his awareness of these issues only arose over time, initially from the fact that there was material in the brief that Mr Mallard had been interviewed by police at Graylands Hospital. But in fact, the psychiatric issues were first raised in the Comprehensive Summary of Facts295 and if he had read that document with any care or attention at all, he must have been aware of those issues from the beginning.

[490] He agreed that there had been no disclosure of the pig’s head testing of the wrench296 and said that when he first received the papers he read the Comprehensive Summary and the covering letter, but then worked from the witness statements and reports in the Brief. He overlooked the reference on page 29 of the Comprehensive Summary to the pig’s head testing of the wrench, pointing out that there was no expert report or police statement about it in the Brief297. 9.3 Preliminary Hearing

[491] When Mr Bates opened at the Preliminary Hearing he made no reference to a wrench, but followed the wording of the Statement of Material Facts provided by the police. He said298: Defendant walked to the backyard via the rear laneway. There he ascended the stairs to the back door. When he went to jemmy the back door open with a metal object that he had brought with him he found that the door was locked. After referring to him being confronted by Mrs Lawrence and she becoming hysterical, he continued: 113 The Defendant then panicked and struck her several times on the head within the hair line with the metal object that he had been carrying. And he later said:299 The Defendant then left the premises, by taking the purse and the metal object with him.

[492] The first witness was Dr Cooke. He was asked what might have caused Mrs Lawrence’s injuries and replied300: Some of these injuries have a non-specific look about them, they could be caused by almost any blunt object, but some of them also have a chop-like appearance to them. I was subsequently … shown a metal bar, which I understood was a copper anode or cathode used as apart of electrolysis and I thought that showed – that type of weapon bar may have fitted some of those injuries quite well …some of the scalp lacerations were non-specific, but for some of them this bar fitted very well ...

[493] The Commission considers Dr Cooke’s answer was misleading, but does not believe that it was intentionally so. He had been present during the pig’s head test on 24 June 1994, where he knew, and recalled (as his evidence at the trial made clear), that a copper anode such as found in the rear shed could not have been the murder weapon because it was unwieldy, because of the excessive copper oxide deposit it left in some of the wounds and because of the absence of blue paint particles which he had found in some of the wounds of Mrs Lawrence.

 [494] He was not asked any follow up question by Mr Bates, who moved on to another topic. He was not asked if a wrench could have caused the injury. The drawing of the wrench done by Mr Mallard on 17 June was tendered,301 but it was not shown to Dr Cooke whilst he was in the witness box.

 [495] A number of other witnesses were called, including Det Sgt Caporn who read out the notes of the interviews he had conducted with Mr Mallard, as did Det Sgt Brandham. In addition to the witnesses who were called, a number of witness statements were tendered by consent. [496] No psychiatric evidence was called, nor were the reports of Dr O’Dea tendered. It would seem these only became available to Mr Bates after the Preliminary Hearing, and they were not relevant to the issue in the Preliminary hearing, namely whether the prosecution could establish a prima facie case. No evidence was led concerning the pig’s head test, the salt water testing, the suspicious jewellery, or the undercover operation. Mr Bates was not aware of the salt water testing, there were no statements, but only a reference in the Comprehensive Summary of Facts, to the suspicious jewellery, and the undercover operation was not relevant. 114 [497] Mr Bates, as prosecutor, made no attempt to identify a wrench as drawn by Andrew Mallard as the murder weapon. He said in evidence to the Commission302 that at the Preliminary Hearing he relied on the Police Statement of Facts for his opening, and then ran through the various witnesses whose statements had been supplied. The Commission accepts his evidence in this regard.

 [498] The magistrate found there was a prima facie case and Mr Mallard was committed for trial to the Supreme Court. On 20 January 1995, Det Sgt Shervill completed the “Committal Cover Sheet”303 which included the following statement as required by paragraph 3 of the 1993 Guidelines: I certify having forwarded to the Director of Public Prosecutions all documentation material and other information concerning all proposed prosecution witnesses that I know or believe may be of assistance or interest to either the prosecution or defence. Attached to the cover sheet were the statements of the prosecution witnesses. However, the original statements and reports referred to above were not included. It follows that the certification was false and the chain of nondisclosure continued. Det Sgt Shervill said that he did not appreciate that the form of cover sheet had been changed and that it now included the certification referred to. 9.4 Pre Trial Matters

[499] In due course the trial date was set for Thursday, 2 November 1995, with a Voir Dire hearing to deal with admissibility of the interviews and other preliminary matters set for Tuesday 3 October 1995.

[500] At the Voir Dire hearing, Mr Hogan applied to have the evidence of the interviews excluded on two grounds. The first was that any admissions made during such interviews were not voluntary because the accused had been assaulted by police during the interviews, that he was cajoled and threatened, detained against his will and the length of the interrogation was too long with insufficient breaks. On the basis of the video recorded interview and the presentation of Andrew Mallard during that interview, the trial judge found that the concessions he made and agreements to statements made earlier were not consistent with someone under pressure from being assaulted.304

 [501] The second basis on which Mr Hogan sought to have the interview material excluded was that the accused was suffering from a psychiatric disorder, namely Bi-Polar Affective Disorder, but not specifically on the basis that his condition might render any admissions unreliable. Mr Hogan called Dr O’Dea and led from him evidence of the diagnosis and of its symptoms. He did not specifically ask Dr O’Dea whether Mr Mallard’s psychiatric condition would or could interfere with the reliability of the statements he made. He did not ask him whether Mr Mallard’s bipolar condition, or indeed anything else concerning Mr Mallard, might lead to a false confession.305 115

 [502] In ruling to admit the evidence of the interviews, the Judge said:306 There was nothing which I thought` emerged from Dr O’Dea’s evidence which would have any particular impact, let alone any substantial impact upon the reliability of the confessional material.

 [503] Years later Dr O’Dea was to agree with the evidence of Dr Stephen Patchett, which was obtained for the Clemency Petition in the Court of Criminal Appeal. That evidence did raise doubts about the reliability of Mr Mallard’s confessions by reason of his psychiatric condition.

[504] Mr Hogan did not call Dr O’Dea in the trial before the jury. He cannot now recall the reason, but he expects that it was because he thought that evidence about Andrew Mallard’s mental illness might be prejudicial in front of the jury which was considering a brutal murder, and jurors may take the view that a mentally ill person was such a person who might commit such an offence307.

[505] As the trial date drew near, Mr Mallard (and his family) decided that they wished him to be defended by senior counsel rather than by Mr Hogan, and limited enquiries were made to ascertain who might be available. When enquiries proved unsuccessful, an application was made for an adjournment of the trial. This application was heard by the trial Judge on 6 October 1995 and was refused. 9.5 Private Investigator [506] In the meantime the Legal Aid Commission engaged a private investigator, Mr Leslie William Robertson, to make further enquiries on behalf of Mr Mallard. Mr Robertson attempted to interview a number of witnesses about other persons who had been seen in the area within the relevant time. He obtained statements from Ms Annabella de Florenca308, who was subsequently called by the defence in the trial, and Mr Lloyd Harvey Peirce,309 who was not.

[507] Mr Robertson also had a meeting with Det Sgt Shervill at Police Headquarters, Curtin House. Mr Robertson said310 that he was seeking information in regard to locations and names of witnesses, but Det Sgt Shervill “was not very helpful. I certainly wasn’t given any information that I requested and went out virtually empty handed …” He also said that he was given no access to the case file held by police, but he could not recall precisely what he asked for.

[508] Det Sgt Shervill, on the other hand said:311 I don’t have a memory of him telling me what he was enquiring into and I offered any assistance I could … I have a memory of offering him access to the case file if he had specific areas he wanted to look at. 116

[509] Mr Robertson’s recollection of what he specifically asked for is not sufficiently specific or reliable at this point in time; but in any event, there would be no point in offering him access to the case file, “if he had specific areas he wanted to look at”, because Mr Robertson could not have known that the statements of a number of material witnesses, for example: Miss Barsden, had been materially altered, nor that the police had information that the weapon drawn by Mr Mallard could not have been the murder weapon, and so could not have known what “specific areas” he would want to look at. 9.6 The Trial

[510] At the trial, which commenced on 2 November 1995,312 Mr Bates opened differently from the Preliminary Hearing. In unequivocal terms he said that a wrench was the weapon used by the accused to kill Mrs Lawrence, and in his opening he used the word “wrench” twelve times. In his closing address he referred to a “wrench” three times, to the “weapon” five times and, almost as an afterthought, suggested at the end that it may have been the “iron bar” referred to by Ms Lily Raine.

[511] He referred to the accused entering the rear shed, and said that the accused “obtained a wrench from the rear shed”313, and that “the accused man then entered the shop carrying the wrench in his hand.” In these remarks he was relying on what Andrew Mallard had said in his interviews with police, and ignoring his concession to Det Sgt Brandham that he had never been in the shed.

[512] He said that after discussion between Mrs Lawrence and the accused man, Mrs Lawrence became hysterical and the accused man “who didn’t want to be identified, then brutally and savagely hit her over the head with the wrench that he was carrying. He struck her twelve times in three distinct areas on her head within her hair line and he did not strike any other part of her body”.

[513] He also claimed315 that the accused’s two confessions on separate occasions were corroborated or supported by accounts of independent witnesses, by the examination of the crime scene itself and by the post-mortem examination conducted by Dr Cooke, and that the confessions correctly detailed many things which only the killer could know. He referred316 to Mr Mouchmore and Mrs Purves as persons who saw “a man fitting the accused’s description in the vicinity of … Flora Metallica shortly before the time of the killing” and also referred to the observations of Miss Barsden317. [514] Dr Cooke was called as a witness in the Crown case. After leading his qualifications, Mr Bates took him through his post mortem report, including his opinion, that the cause of death was head injuries including twelve cuts to the skin of the skull, with extensive fracturing of the skull bone with bleeding around the brain and extensive bruising and tearing of the brain substance. Mr Bates then asked him, by reference to the post mortem report, to describe each of the injuries in detail, which he did including that some of the wounds 117 contained a bluey-green material visible under a dissecting microscope, though not to the naked eye.318 [515] Dr Cooke gave evidence of visiting the premises of Flora Metallica on 26 May 1994, and the observations he made, and that on 24 May (the same day as the post mortem), he was shown a copper anode such as was used in the shop’s electrolysis processing, weighing 2.7kgs and a couple of feet long. He observed a bluey coloured material which he believed to be copper sulphate.319 [516] He was then asked some questions about the pig’s head test. He said he conducted an experiment in the presence of Mr Lynch from the Chemistry Centre and others, which involved striking a pig’s head with one of the anodes. He gave evidence that the shape of the injuries to the skin of the pig’s head were close to the injuries to Mrs Lawrence’s skull, but that there were some “disappointing aspects” to the experiment. These were firstly, that the anode was very unwieldy and heavy, and it was very difficult to accurately strike the pig’s head, and secondly, that the copper sulphate on the bars was deposited very heavily within the wounds so that it was clearly visible, whereas in Mrs Lawrence’s case, the bluey-green material was not visible to the naked eye.320

 [517] He said he later received the results of Mr Lynch’s chemical analysis of the blue material from the anode testing and from Mrs Lawrence’s wounds. As a result of those findings, and his own observations, he concluded that the injuries to the deceased were not sustained from a copper anode although there was some similarities in the shape of the wounds321. No evidence was led concerning the pig’s head testing involving the wrench. Dr Cooke had no recollection of it and Mr Bates had forgotten or overlooked what he had read about it in the Comprehensive Summary of Facts.


 [518] After playing a selected section of the video interview to the jury and being asked whether the areas of injury described were consistent with his findings on post mortem322 he was asked about blood splattering:323 The injuries that they (sic) found, are they consistent … with the head being struck with a blunt object of some description? (Commissions Underlining) to which he replied: Yes. Mr Bates then moved on to another topic. As he had opened the trial on the basis that the weapon was a wrench, even though his case was based on the confessional material, one would have expected the next question to be the obvious one: Such as a wrench? 118 but it was not.

[519] As Mr Bates knew prior to the trial that some of the deceased’s wounds had a peculiar pattern and that they could not be caused, by any blunt instrument, but only by one with a leading edge or pointy end324, it is difficult to understand why he did not at this stage ask Dr Cooke further questions on the nature of the weapon, so as to make this clear. This would have been an appropriate time to show Dr Cooke the sketch drawn by Andrew Mallard and ask if the injuries were consistent with such a weapon. At this stage the Commission is not concerned with what answer Dr Cooke may have given, but with the fact that the question was not asked. [520] Mr Lynch gave evidence and expressed the opinion325 that the weapon was probably steel or iron, painted blue, or with blue paint on it. He described the pig’s head testing of the copper anodes326 and excluded them as the murder weapon, but made no reference to the testing of the wrench. He was not asked about the salt water testing, but Mr Bates did not know of it because only Mr Lynch’s shorter report was included in the Brief, and there was no reference to it in the Comprehensive Summary of Facts prepared by Det Sgt Shervill. Mr Lynch said that he did not tell Mr Bates of the pig’s head testing of the wrench in their pre-trial conference327. [521] In his Closing Address, Mr Bates, apart from his references to the “wrench”, said that it was a tragic case of a robbery gone wrong, and that Mr Mallard had disposed of the weapon and then soaked his clothes before returning to Ms Engelhart’s flat shortly after 6pm328. He then went through the 15 matters contained in the confessional material which he claimed only the killer could have known329. He referred to the fact that the police divers had been unable to find the weapon near Stirling Bridge and in answer to a point made by Mr Hogan that there was no blood on any of Mr Mallard’s clothing, he said:330 He told the police that he went down to the river near North Fremantle and washed his clothing and that explains the lack of blood on his clothing

. [522] Mr Bates ran the whole case on the basis that a wrench was the murder weapon because of what Andrew Mallard had said in his interviews. He called Dr Cooke as a witness but did not ask him if a wrench could have caused the injuries suffered by Mrs Lawrence. The drawing by Mr Mallard of the alleged murder weapon was not shown to Dr Cooke. The anode was eliminated as a possible weapon, a wrench was not explored and Dr Cooke concluded his examination in chief with a reference to a “blunt object of some description”. Mr Bates questioned Dr Cooke extensively about what was known not to be the murder weapon (the anode), but not at all on what he was alleging the weapon was (the wrench).

 [523] Not only is it a fundamental imperative in any homicide, wounding or civil personal injury case to relate the injuries suffered to the weapon or nature of the accident, it was of particular significance in this case, because Andrew Mallard had nominated the wrench as the murder weapon, and so evidence 119 that a wrench was consistent with the wounds suffered by the deceased went to the reliability of the confession. [524] In Section 86 Submissions, reliance was placed on the remarks of the Court of Criminal Appeal in its judgement on the Clemency Petition331 to the effect that, a confession to the use of the weapon which may not have been that actually used may have been but one more inconsistency, and did not affect the reliability of other parts of the confession; however the High Court held that this was not the correct approach. 332 The majority said: 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. The body of unpresented evidence so far mentioned (relating to a wrench and the deceased’s wounds including the pig’s head testing) was potentially highly significant in two respects. The first lay in it’s capacity to refute a central plank of the prosecution case with respect of the wrench. The second was it’s capacity to discredit, perhaps explosively so, the credibility of the prosecution case, for the strength of that case was heavily dependent on the reliability of the confessional evidence …

[525] Defence counsel, Mr Hogan, knew nothing of the pig’s head test and therefore could not, on ordinary principles of advocacy, risk asking Dr Cooke whether a wrench of the type Mr Mallard had drawn could have been the murder weapon, although he could have explored the issue at the Preliminary Hearing. It is surprising, that at the close of the Prosecution case, he did not take the point that there was no evidence that a wrench as drawn by his client and as opened by the Prosecution could have caused the injuries. Alternatively, he could have taken the point in his Closing Address. [526] The Section 86 Submissions claim that the Commission is applying different standards in criticising Mr Bates for not asking questions about the wrench, but not criticising Mr Hogan for the same failure. But Mr Hogan had not been informed of the pig’s head testing of the wrench and did not have a duty of disclosure. Mr Bates had and did.

 [527] Mr Hogan did get Dr Cooke to agree, that as a result of the attack and the dragging of the body there would be extensive blood staining on the clothing, including the shoes, of the assailant333. He asked him about the anode testing and Dr Cooke expressed the view that some of the injuries showed a sharpness consistent with the shape of the anode or the bow, rather than the stern, of a ship334. [528] Dr Cooke told the Commission,335 that he does not recall the pig’s head testing of a wrench, although he did recall testing an anode. In 2002, at Mr Quigley’s instigation336, he was shown, for the first time, the sketch of the wrench drawn by Mr Mallard. His preliminary view then, was that because wrenches of such nature had rounded edges on both the head and handle, they would produce 120 more of a crushing type of injury rather than the chopping and penetrating type of injuries suffered by the deceased.337 [529] On 20 June 2002 he conducted testing on a pig’s head using a wrench (Sidchrome), approx 30cms long, and was unable to reproduce the appearance of many of the injuries seen on the deceased’s head338, although, he did not exclude the possibility that some form of wrench, not yet identified, might have been able to cause such injuries. [530] The evidence establishes that Mr Bates and Dr Cooke had a pre-trial conference on 27 October 1995. It would appear that at this conference Mr Bates was made aware of the pig’s head testing of the anode339, and exclusion of such an instrument as the murder weapon. Even if Mr Bates had overlooked the passage in the Comprehensive Summary about the pig’s head testing of the wrench, the Commission finds it surprising that, once the anode was excluded, they would not have discussed the question of what could have been the murder weapon; one would expect that such discussion would have led to a consideration of whether the weapon nominated and drawn by Mr Mallard (the wrench) could have caused the injuries. [531] Dr Cooke recalls the conference with Mr Bates prior to the trial, but has no specific recollection of a wrench being discussed. However he assumes that there would have been some discussion about the weapon, I think it would be silly of us, sir, to have a pre-trial conference and not talk about the weapon.340 Asked whether he recalled a pre-trial discussion concerning a wrench as a weapon he replied341: Again, not specifically, no, but I do know that it has been put to me about that time about a wrench in general terms. My recollection is that not at any time was a specific type of wrench discussed with me. [532] Mr Bates said that in the conference he did not discuss with Dr Cooke whether a wrench could have caused the injuries, but agreed, “with the benefit of hindsight” it would have been a logical thing to do,342 and he accepted that he should have put the wrench to Dr Cooke and asked whether or not it was capable of causing the deceased’s injuries343. [533] Mr Bates also had a number of meetings with Det Sgt Shervill, but the latter also did not recall any discussions between them about the murder weapon or more specifically about a wrench as such weapon or the pig’s head testing of the wrench,344 but agreed that the issue of the weapon/wrench would no doubt have been discussed although he had no memory of it.

 [534] At some time, apparently shortly before the Voir Dire, Mr Bates had a conference with Det Sgt Brandham relating primarily to the interviews the latter had with Mr Mallard on 17 June 1994. In his notes of that interview345 (voluntarily produced by Mr Bates through his counsel) appears the passage: 121 1.37 - gas bottles – that’s not right spanner drawn – doesn’t match injuries blue copper – in the wounds go back in there clarify – couple of little things [535] In his evidence before the Commission, Mr Bates suggested that these notes record Det Sgt Brandham relating to Mr Bates, a conversation he (Brandham) had with Det Sgt Shervill on 17 June 1994 during a break in the interviews, and indicates that Det Sgt Shervill was then telling Det Sgt Brandham that the spanner which had just been drawn by Mr Mallard did not match the injuries; and not that Det Sgt Brandham was making such a statement to Mr Bates. Other entries on the page tend to support this interpretation except that, as the pig’s head testing with the wrench did not take place until a week later (24 June 1994), it is difficult to see how or why Det Sgt Shervill would have made such a statement on 17 June, unless Dr Cooke had expressed to him some preliminary view on wrenches in general during informal discussion prior to that time, or alternatively it was a private opinion of Det Sgt Shervill. [536] But whatever the context, Mr Bates was clearly on notice from Det Sgt Brandham prior to the Voir Dire that there was a problem with the spanner (or wrench) as drawn by Mr Mallard being the murder weapon. He agreed that this information was of “enormous significance” but cannot recall any further questions about it and did not cause any further inquiries to be made in relation to the issue346. This information from Det Sgt Brandham makes his reliance at the trial on the wrench as the murder weapon all the more questionable. [537] Mr Bates said that, owing to the procedure adopted at the Voir Dire, and in particular, as there was no issue as to Det Sgt Brandham’s evidence in chief, his statement was tendered347, and this evidence, which Mr Bates intended to lead at the Voir Dire and should have, became irrelevant to the issues then being considered, and he overlooked it348, and then forgot what he had been told with regard to it by the time the trial came around349. (The trial commenced 4 weeks after the Voir Dire). [538] Mr Bates agreed that “with the benefit of hindsight” there were a number of matters inconsistent with the wrench as drawn, being the murder weapon350 but said he wanted to run the case on the wrench being the weapon because that was what Andrew Mallard had said in his interview. He denied that he refrained from asking Dr Cooke whether the injuries were consistent with the wrench as the murder weapon because he knew that he would not get a positive answer.351 [539] The Commission has difficulty accepting, that notwithstanding the peculiar nature and shape of some of the injuries which had been the subject of the 122 pig’s head testing of the anode by Dr Cooke, and examination by Mr Lynch as to the chemical deposits in the wounds, and the information gleaned from the conference with Sgt Brandham, there was no discussion between Mr Bates and either Dr Cooke or Det Sgt Shervill in their conferences as to whether such peculiar injuries were consistent with the use of a wrench as drawn by Mr Mallard.

[540] Det Sgt Shervill,352 Det Sgt Caporn353 and Det Sgt Brandham354 all told the Commission that they doubted or had reservations about a wrench as drawn by Andrew Mallard being the murder weapon, but apart from what appears at paragraph 534, there is no evidence that any of them ever conveyed their doubts or reservations to Mr Bates.

[541] Mr Bates ran the trial on the basis that a wrench as drawn by Mr Mallard was the murder weapon, but made no attempt to prove that the use of such an instrument was consistent with the injuries suffered by the deceased. Although he asked questions about a possible murder weapon (the anode) he did not show Dr Cooke the sketch of what he was claiming was the weapon. This is such a fundamental omission that the Commission has difficulty accepting that it was accidental or due to an oversight. In these circumstances the Commission considers the most likely explanation to be that, even though he had overlooked or forgotten what was in the Comprehensive Summary, Mr Bates knew or realised that there were difficulties with identifying the murder weapon and decided to avoid the issue as much as possible.

[542] In Written Submissions on his behalf it was submitted (paragraph 43) that “it is wrongly assumed now that the identity of the murder weapon was a preoccupying question at the trial”. If it was not, it should have been, because if the accused could not correctly identify the weapon he allegedly used, it constituted a fundamental flaw in the reliability of his “confessions”. In the Section 86 Submissions it was submitted that the failure by Andrew Mallard to correctly identify the murder weapon would constitute a fundamental flaw in the reliability of the confessions as “simply wrong”355, and the findings of the Court of Criminal Appeal are relied on in this regard. As pointed out in paragraph 524 above, the High Court regarded the evidence concerning the wrench as “a central plank of the prosecution case”. [543] There was also the failure to disclose the result of the pig’s head testing of the wrench to the defence. Mr Bates had been informed of it in the Comprehensive Summary and consequently had a duty to disclose it to the defence, or to ensure that it had been disclosed by the Police. It is not acceptable to say that he read it once when he first received the papers and subsequently overlooked it. He had a responsibility to make himself familiar with the case and he failed to live up to that responsibility. [544] The Commission has read and taken into account a large number of references from leading members of the Criminal Bars, both local and interstate, all of whom speak in glowing terms of the high ethical and professional standards of Mr Bates, and in particular his fairness in the conduct of criminal trials. They reject any suggestion that he deliberately 123 sought to pervert the course of justice, and the Commission does not find that he did.

[545] However, as the prosecutor he had specific duties under the DPP’s Prosecution Guidelines, including to ensure the prosecution case was presented properly and with fairness to the accused (cl. 53) and to disclose information which comes to the attention of a prosecutor which may be exculpatory of an accused (cl 59). Commission Opinion [546] In relation to the breach of clause 59, it has been submitted that a failure to disclose information could never result in what is described as a serious breach of discipline within section 83 of the PSM Act unless there be a deliberate act, and that a breach due to inadvertence or lack of diligence could never justify termination.

[547] Section 80 of the PSM Act provides that breaches of discipline include “misconduct” (which is not defined for the purposes of that Act) and “negligent or careless performance” of functions, and the Commission is satisfied that the breaches of the Guidelines identified, even if due to inadvertence or lack of diligence, amounted to breaches of discipline.

[548] Whether such breaches are “serious” does not, in the Commission’s assessment, depend on whether they are deliberate or not, but on the seriousness of the context in which the conduct or omission occurs, the degree of responsibility of the person committing the breach and the possible consequences for others affected by the conduct or omission; in this case contributing to an accused being deprived of a fair trial on a charge carrying a mandatory penalty of life imprisonment. Having regard to these factors the Commission is satisfied that Mr Bates’ breaches were serious within the terms of section 83 of the PSM Act and consequently could provide reasonable grounds for the termination of his employment as a public service officer.

[549] For these reasons, the Commission’s opinion is that Mr Kenneth Bates engaged in misconduct within section 4(d)(iii) and (vi) of the CCC Act in that conducting the trial on the basis that the murder weapon was a wrench as drawn by the accused, but making no attempt to prove that such weapon could have caused the deceased’s injuries, particularly in circumstances where it was known that there was a problem about the pattern of some of the injuries, involved a breach of the trust placed in him by reason of his employment as a public officer and could constitute a disciplinary offence providing reasonable grounds for the termination of his employment as a public service officer under the PSM Act. The breach of clause 53 of the Guidelines would also appear to constitute a breach of clause 16.1 of the Professional Conduct of Rules of the Law Society of Western Australia which requires prosecuting counsel to present the case for the prosecution “fairly, impartially and in a competent manner”. 124

[550] The Commission is further of the opinion that Mr Kenneth Bates engaged in misconduct within section 4(d)(iii) and (vi) of the CCC Act in that failing to disclose to the defence the result of the pig’s head testing of the wrench constituted or involved a breach of the trust placed in him by reason of his employment as a public officer and could constitute a disciplinary offence providing reasonable grounds for the termination of his employment as a public service officer under the PSM Act. 9.7 “Twelve/Fifteen Things Only the Killer Would Know”

[551] One point relied on strongly by Mr Bates in his opening and closing addresses was that the admissions made by Andrew Mallard on 10 and 17 June contained a number of facts which only the killer would know, and which therefore supported the reliability of the confessions. The confessions you will see are of such a detailed and intricate nature and correctly detail so many things that only the killer could know …356 Twelve of these matters “which only the killer would know” were first formulated by Det Sgt Shervill in his Comprehensive Summary357, and a further three were added by Mr Bates at the trial. [552] As it has now been established that Andrew Mallard did not kill Mrs Lawrence, none of these matters were “things which only the killer would know”; however it is appropriate to look at these matters in light of the information which was in the public domain at the time. [553] At the conclusion of the video recorded interview with Mr Mallard, Det Sgt Brandham said: Now the only one thing I want to ask you, Andrew, is, there are certain things about what you told us that only the offender would know … How do you explain that? To which Mr Mallard replied: Um, my association in Mosman Park, going to the deli on the corner, walking past the jewellery store, not knowing what is behind the back wall, but also seeing the jewellery store or the jewellery store and the adjoining shops from the cycle centre in Stirling Highway, and then just coupling that with information on the television, um, identikit photograph, which is probably nothing like the person. [554] The matters listed by Det Sgt Shervill in the Comprehensive Summary358 were as follows (they have been numbered by the Commission for ease of reference). 125 1. Knowing the three areas of injuries sustained to Pamela LAWRENCE’S head and accurately showing them on his own head during the video recorded interview. (Corroborated by the post mortem examination). 2. Saying that he struck Pamela LAWRENCE at least six times possibly twelve. (Post mortem examination determined that LAWRENCE sustained twelve wounds to the head). 3. Saying that he did not hit Pamela LAWRENCE anywhere else. (Corroborated by the post mortem examination). 4. Saying that he dragged Pamela LAWRENCE from the front of the shop to the rear. (Corroborated by the drag marks in the blood on the floor as interpreted by Doctor COOKE and Aleksander BAGDONAVICIOUS). 5. Saying that Pamela LAWRENCE was wearing dark slacks and a jumper. (LAWRENCE was wearing blue jeans and a jumper). 6. Accurately describing the configuration of the shed in relation to the rear of the shop, the steps to the back landing, the flyscreen security door, the main rear door, and the small sign on the main rear door. (All are not visible from the rear laneway or backyard). 7. Saying that while he was in Flora Metallica he was seen by a girl in her early teens who was sitting in the front seat of a car parked back from the traffic lights in Glyde Street. (Corroborated by the witness Katherine BARSDEN). 8. Saying that he had realised he had been seen by the girl he “ducked” down behind the counter. (Corroborated by BARSDEN). 9. Saying that Pamela LAWRENCE’s purse came from her handbag. (This is the place she kept her purse). 10. Saying that the handbag was black. (Her handbag is a dark blue). 11. Claiming that when he left Pamela Lawrence she was making “gurgling noises”. (Corroborated by Peter LAWRENCE who states that on finding his wife she was “moaning and making gurgling sounds. I saw that she had a mouthful of blood”). 12. Saying that he saw Pamela LAWRENCE’s car parked at Flora Metallica when he was loitering in Glyde Street prior to entering the premises. (Corroborated by the fact that LAWRENCE’s car was still parked in its usual position when the crime was discovered).

[555] The additional matters added by Mr Bates at the trial were: 126 13. Saying that Mrs Lawrence said, “Take what you want and go”. Saying that money was taken and that no jewellery was taken. 15. Saying that he took the wrench from the back shed to use as a jemmy on the back door but when he got to the back door it just pushed open.

[556] The Commission’s research has uncovered the following in relation to these matters:

1. The West Australian, Channel 7 and Channel 9 all reported on 24 May 1994 that Mrs Lawrence had received a number of injuries to her head and there were also subsequent reports. In his interview with Det Sgt Caporn on 10 June, when asked where he hit her, Mr Mallard indicated with his hand and Det Emmett wrote “Top head” (no reference to 3 areas). In the interview of 17 June with Det Sgt Brandham he said that he hit her “right on top of the cranium”, and in the video interview he said the initial blow would have been around the forehead, and as she went down, he hit her on the cranium and on the temple. At the trial, Det Sgt Caporn said that the reference in the media was to the head area in general without any specific areas of the head being identified, and in his Closing Address Mr Bates (at p.20) said, “There was certainly information in the media that she had been struck on the head with a blunt instrument, but that was as far as it went”. Dr Cooke had in fact identified injuries to the right frontal region, the left temporal region and the back of the head, but Mr Mallard made no reference to the right frontal region or the back of the head as such. The proposition that Mr Mallard knew the three areas of injury and had accurately shown them on his own head during the video recorded interview was therefore misleading.

2. The media reports of 24 May 1994 suggested there had been a frenzied assault and there were a number of injuries about the head. The West Australian of 25 May reported that Mrs Lawrence had been hit “more than ten times” and this was repeated in the same newspaper on 26 May; again in the Sunday Times on 29 May and in the Subiaco Post on 31 May. Acting Inspector Darryl Lockhardt was reported as saying that Mrs Lawrence had been hit at least ten times. Mr Mallard had made statements such as “about twelve, six to twelve and at least ten times”. In the Commission’s view it was really splitting hairs to say that he said twelve times, rather than ten, or at least ten, as reported in the media. In any event having regard to the nature of the instrument which it was subsequently determined was likely to have caused her death, and Dr Cooke’s evidence that in some cases a single blow could have caused two or even more lacerations, the evidence does not establish, and never did, that Mrs 127 Lawrence had in fact been hit ten, or any other particular number of, times.

3. All the references in the media were to head injuries. There was no reference to any injuries to any other part of her body and Mr Mallard did not say that he had struck her anywhere else. Mr Bates told the Commission359 that he was not told that Mr Mallard had also referred to injuries to Mrs Lawrence’s nose.

4. There were references in the media to the deceased being found at the rear of her shop on the Channel 2 news of 24 May and in The West Australian of 27 May.

5. In fact Mrs Lawrence was not wearing dark slacks and a jumper, but blue jeans and a jumper. In any event in his video recorded interview with Det Sgt Brandham on 17 June, Andrew Mallard said she was wearing: a skirt of some sort. Again being a woman of taste and sophistication she would have had to have been wearing a nice skirt like this, but one that joins up.

6. Mr Mallard did not accurately describe the configuration of the shed in relation to the rear of the shop, or the steps to the back landing. When asked the number of steps leading up to the back in the video recorded interview Mr Mallard said, “five but no more than eight”, and later “six to eight”. The images shown on the television news were a potential source of Mr Mallard’s information.

 

7.Mr Mallard on one occasion described the vehicle as being pale green, and at another stage he said it was white and also that it was a Corolla; on 17 June he had described it as a Cortina. He also said “it was a small green, pale green sedan or station wagon, it may have been white I’m not certain”. It was in fact a pale or apple green Toyota Corolla Seca sedan360.

8. There were a number of references in the media to a person being seen behind the counter, and this person was the subject of the identikit photo which was circulated. The Channel 7 News of 26 May said, “This is the man that was seen bobbing down behind the counter”, and in the interview of 10 June Andrew Mallard said, “we locked eyes and I bobbed down like this and ran out”. He later said “I quickly ducked down behind the counter”. On 17 June he said, “he bobbed down, I ducked down”.

9. It would not be difficult to guess that a woman kept her purse in her handbag.

10. Although there was no reference in any public media to Mrs Lawrence making “gurgling noises”, there was reference to the fact that she had 128 been bashed and left for dead, and died on the way to hospital, having been alive when found by her husband. That she was making “gurgling noises” could have been a guess.

11. There was nothing in the media about her car being parked nearby, but if he was anywhere in the area he could have easily seen it parked where it was, or it could have been a reasonable assumption.

12. It had previously been reported in the media, for example, the Sunday Times 29 May, that Mrs Lawrence had given strict instructions to her staff to always hand over whatever was demanded in a robbery, and once again it would not be difficult to assume that a person confronted with a robber armed with some sort of weapon would say, “take what you want and go”.

13.  13. On 24 May, Channel 2 reported, “nothing appears to have been stolen”; Channel 7 reported “nothing was taken”; Channel 10 reported “there was nothing stolen at all” as did the Western Australian on 25 May; and on 29 May the Sunday Times disclosed, for the first time, that Mrs Lawrence wallet, with only a few dollars in it, had been stolen.

14. 14. It was reported in the media that there was no sign of forced entry to the shop and there are a number of references in the media to the type of weapon that could have been used including a star picket with a jagged edge; perhaps a wheel brace, like a tyre lever, like the one pictured (anode); a blunt weapon like a hammer, spanner or star picket, or club like weapon. Although raising them as matters only the killer would know, Mr Bates in his closing address at361 conceded that: The last two were in the media.

[557] In summary, even at the time when it was thought Mr Mallard MAY have been the offender, there was sufficient information disclosed in the media which, together with a few calculated guesses, could explain the answers which he gave. They were not matters “which only the killer would know”, and the jury were misled by being asked to believe they were.

[558] The evidence at trial concerning what was in the media was given by Det Sgt Caporn362 whose evidence was unchallenged in this regard.

[559] It appears that Mr Bates accepted what he was told by the police as to what had been in the media, as he should have been able to do; but he should have realised that some of the points, particularly points 5 and 9, lacked validity. It would further appear that Det Sgt Caporn’s examination of the media was not sufficiently thorough and that the defence team, led by Mr Hogan, did not conduct adequate, if any, research of its own to determine what matters had been reported in the media. The result was that the prosecution was able to put to the jury a strong argument in support of the 129 reliability of the confessions when that material should have been challenged, and either destroyed or its value and reliability significantly diminished.

[560] It is unfortunate that no countervailing list of “Things which Andrew Mallard Got Wrong” such as that referred to in Chapter 8 was not also put before the jury. Such a list could only have come from the Police, as it was only the investigating police who had access to information showing what Andrew Mallard had said that was incorrect. 9.8 Defence

[561] As pointed out by the trial judge in his summing up,363 the only direct evidence of the guilt of the accused was the confessional material in the police interviews of 10 and 17 June, and in support of the reliability of such confessions the prosecution relied on the 12 or 15 matters which “only the killer could know”.

[562] In responding to these matters Mr Hogan relied on such things as the lack of blood on the clothing or shoes of the deceased; the failure of the police divers to find the weapon in the area of Stirling Bridge; and that on the evening of the murder Mr Mallard claimed, at an adult bookshop in Fremantle, to have no money (this was inconsistent with him having taken Mrs Lawrence’s purse from Flora Metallica).

[563] As to the weapon, Mr Hogan argued that clearly it was not one of the copper anodes and Dr Cooke had said that the wounds were consistent with an object which was robust and fairly heavy, whereas the only item which Mr Lawrence had said may have been missing was a much smaller shifting spanner, which in any event did not match the item drawn by the accused in his interview with police. In the absence of information about the pig’s head test with the wrench, Mr Hogan was not in a position to press this point to his client’s advantage. 9.9 Verdict, Sentence and Appeal

[564] The jury returned its verdict of guilty on 15 November 1995, and on 21 December Mr Mallard was convicted of the wilful murder of Pamela Lawrence and sentenced to imprisonment for life with a minimum term of 20 years. He had been in custody since 17 June 1994 and remained so until released on 20 February 2006, having served a period just in excess of 11 years and 8 months.

[565] He appealed to the Court of Criminal Appeal on the grounds that the interviews and videos should not have been admitted, but such appeal was dismissed on 11 September 1996.364 An application to the High Court for special leave to appeal was dismissed on 24 October 1997.

CHAPTER TEN THE PETITION (CLEMENCY APPEAL) 10.1 Mr John Quigley MLA [566] Notwithstanding his conviction, Andrew Mallard continued to maintain his innocence and by the first half of 2002 a number of persons were actively investigating and advocating on his behalf; including his sister, Ms Jacqueline Mallard; Ms Colleen Egan, a prominent Perth journalist, and Mr Quigley. Mr Quigley had become involved in the case at the invitation of Ms Egan who asked him to read the Transcript and relevant papers with a view to obtaining a reference for a second appeal.365 Mr Quigley began that work during Lent in 2002. [567] John Robert Quigley had been admitted as a barrister and solicitor in 1975, and practised as such, principally in the criminal law field, until his election to the Western Australian Parliament in 2001, although he retained his practising certificate until it expired in 2006. For many years he was the Principal Solicitor for the Police Union in this State366. [568] Upon reading the transcript, Mr Quigley became satisfied that something was wrong with the Prosecution, that there had been an undercover operation which had not been disclosed, and that Mr Mallard had not had a fair trial. He began seeking additional information which could justify a petition to the Governor for clemency, pursuant to section 140 of the Sentencing Act 1995. [569] In due course, Mr Quigley prepared a petition which he delivered to the Attorney General on 23 June 2002. At about the same time he indicated that he intended to speak about the Mallard matter in Parliament during the debate on the Appropriation Bill on Friday 28 June 2002. Mr Quigley said that when he handed the petition to the Attorney General he regarded it as doomed to fail367. [570] Before his intended speech to Parliament on Friday 28 June 2002, the Attorney General arranged for Mr Quigley to have access to the DPP’s file, and the DPP (Mr Cock) asked Mr Bates to prepare the file for inspection. On doing so Mr Bates re-read the Comprehensive Summary of Facts, including the paragraph relating to the pig’s head test of the wrench. [571] Mr Bates immediately drew it to Mr Cock’s attention with the explanation that it “had previously been inadvertently overlooked” 368. [572] Mr Quigley attended the offices of the DPP on Saturday 29 June 2002, where he was handed a copy of the Comprehensive Summary by Mr Cock, and his attention was drawn to the passage concerning the pig’s head testing of the wrench. As arranged, he was given access to the relevant DPP’s files. 132 [573] Following his access to the DPP’s files, including the Comprehensive Summary, Mr Quigley was able to redraft the petition which, in accordance with the relevant legislation369, was referred to the Court of Criminal Appeal for the “whole case” to be heard as if it were an appeal (the Clemency Appeal). 10.2 The Court of Criminal Appeal [574] One of the central focuses of the petition was that there had been material non-disclosure by the prosecution of significant material relevant to the defence which, inter alia, cast doubt on the reliability of the so-called confessions allegedly made by Mr Mallard. [575] A number of the matters related to non-disclosure were admitted, but the Crown contended that, notwithstanding these matters, Mr Mallard had not been deprived of a chance reasonably open to him of being acquitted. On 3 December 2003, the Court dismissed the appeal370. It did so for two main reasons: 1. It held that the law required a limited view of the evidence to be considered on that type of appeal; and 2. It held that even where there had been failures in the duty of disclosure, those failures would not have altered the outcome of the trial. [576] Mr Mallard appealed to the High Court, which on 15 November 2005 unanimously371 upheld the appeal, quashed the conviction and ordered a new trial372.

[577] The Court held that, on an application for clemency pursuant to section 140 of the Sentencing Act 1995, the Court should not limit the evidence considered as the Court of Criminal Appeal had done, but should consider the “whole case”, and further, that because of the material non-disclosure, Mr Mallard had not received a fair trial. An application on behalf of Mr Mallard for a verdict of acquittal was refused but the majority said:373 Having regard however to what has in total passed and emerged it would remain well open to the Respondent to elect not to have the Appellant re-tried if it were so minded.

[578] The Court expressed particular concern about the material non-disclosure. For example Kirby J said:374 Of particular concern are the items in which evidentiary material, consistent with innocence and presenting difficulties for the prosecutor’s hypothesis of guilt, were actually suppressed or removed from the material supplied to the Defence. 133 10.3 Discontinuance

[579] Following the decision of the High Court, the Director of Public Prosecutions, Mr Robert Cock QC, instructed one of his senior prosecutors, Ms Troy Sweeny SC (now Her Honour Judge Sweeney), to examine the matter and advise what course should be taken. Mr Cock selected Ms Sweeney because of her seniority and lack of prior involvement in the matter.

[580] Since the first trial, section 570D of the Criminal Code had been enacted. This rendered inadmissible any evidence of an admission by an accused person unless there was a videotaped recording of the admission, except in certain exceptional circumstances. Those provisions were retrospective in that they applied to all trials, irrespective of when the interview had taken place375. This meant that any new trial of Andrew Mallard for the murder of Mrs Lawrence could not include any evidence of the interviews with him which had not been videotaped. Without those interviews, Ms Sweeney concluded that there was no reasonable prospect of a conviction.

[581] On 20 February 2006, a notice of discontinuance was presented and a statement was read in court by the DPP, Mr Cock. In the statement, Mr Cock explained the reasons for the discontinuance, particularly the impact of s570D of the Criminal Code on the admissibility of the confessional material. He concluded:376 I do note for the record and for the future that this decision is made on the evidence presently available to the prosecution. Mr Mallard’s discharge on this charge doesn’t alter the fact that he remains a prime suspect for this murder. Should any credible evidence present in the future that would ever give the state a reasonable prospect of obtaining a conviction, the state would seek the prosecution but, of course, that is not the present position and many years have passed since this homicide occurred.

[582] Mr Mallard was released forthwith from Casuarina Prison, but remained liable to be retried if fresh evidence became available against him.

[583] The statement read to the Court had been prepared by Ms Sweeney 377 and was only read by Mr Cock because the matter was listed by the court at short notice and Ms Sweeney was unavailable at the time. [584] The terms of the statement, particularly the reference to Mr Mallard still being a “prime suspect”, were inappropriate. The material disclosed in the appeals, which further contradicted the matters contained in the so-called confessional material, must have caused any reasonably fair minded person to have had doubts as to whether Mr Mallard was in fact the murderer. It was tantamount to the DPP and police saying, and was likely to be understood by the general public as meaning: We know he did it although we cannot prove it. 134

[585] After the exposure in the High Court of the weaknesses in the prosecution case, such description was certainly inappropriate in the case of Mr Mallard. The DPP acknowledged as much in a letter of apology which he wrote to Mr Mallard dated 11 October 2006.

[586] The passage quoted above, at paragraph 581 was included at the request of Mr Cock378 who considered it should be said in case, if fresh evidence came to light, it became necessary to resist an application for a permanent stay of proceedings. He now accepts that a more appropriate procedure is to write a letter to the suspect’s solicitors reserving the prosecution’s position.

[587] Meanwhile, the Commissioner of Police did two things: firstly, in light of the statements made by the High Court concerning the conduct of some of the police officers, he gave appropriate statutory notice to the Commission in his role as a “notifying authority” pursuant to section 28 of the CCC Act, and secondly, he instigated a review of the original investigation, the Lawrence Homicide Review 2006, discussed in the next chapter.

CHAPTER ELEVEN THE COLD CASE REVIEW AND SIMON ROCHFORD 11.1 Cold Case Review [588] Following Mr Mallard’s successful appeal to the High Court the Commissioner of Police instigated a review of the original investigation, known as the Lawrence Homicide Review 2006. The review was not to deal with issues of potential misconduct by any police officer, but was rather a review of the original investigation into the murder of Mrs Lawrence. The task of carrying out the Lawrence Homicide Review was allocated to the Special Crime Squad under the leadership of Det Sen Sgt Anthony Lee. [589] When reviewing the forensic material from the 1994 crime scene, Special Crime Squad officers saw that the investigation files, which had undergone reorganisation since 2002, contained the plaques and photographs of fingerprints found at the crime scene. Among the plaques was the perfectly preserved plaque of an unidentified partial palm print, and another containing unidentified finger prints. [590] There had been few fingerprints lifted from the scene at Flora Metallica but in 1994 it was considered that they were of little use. Those which were identified were shown to belong to persons known to be at the scene, such as Peter Lawrence and police officers. At that time only fingerprints, and not palm prints, could be checked against the Australian Fingerprint Identification System (AFIS).

[591] Since 1994, the national fingerprint database, now known as the National Automated Fingerprint Identification System (NAFIS), has undergone substantial improvement. In particular, since April 2001 it has been possible to conduct an open search of palm prints on the database. Following the upgrade to NAFIS, unidentified prints from past “unsolved’ offences have been gradually entered into the system and this has resulted in previously unsolved crimes being resolved.379

[592] In 2001, however, the murder of Mrs Lawrence was a “solved” crime. Accordingly, the fingerprints, including the palm print, from Flora Metallica had not been entered into the new database. [593] In 2006, after the plaques were found in the case files, they were checked against the NAFIS database where they produced an immediate match. The palm print was identified to be that of Simon Rochford380 [594] At that time, Simon Rochford was an inmate of Albany Regional Prison, in the eleventh year of a fifteen year sentence for the wilful murder of his girlfriend, Ms Brigitta Dickens. Her murder had occurred as a result of being struck on the head with a particular instrument on 15 July 1994, seven weeks after the 136 murder of Mrs Lawrence. The weapon used was a weight collar attached to a sawn-off hoe handle. [595] Simon Rochford had been arrested on 18 July 1994, three days after the murder of Ms Dickens, and he confessed to killing her. He was charged with her wilful murder the day before Mr Mallard was charged with the wilful murder of Mrs Lawrence. Simon Rochford later went to trial, claiming that he did not intend to kill Ms Dickens, but his defence failed, the jury found him guilty, and he was convicted and sentenced on 11 November 1995. [596] The identification of the palm print as that of Simon Rochford caused the Special Crime Squad conducting the Lawrence Homicide Review to recommend that their work be extended to conduct a full Cold Case Review, in order to reassess the identity of the person responsible for the death of Mrs Lawrence. The recommendation was accepted and the Cold Case Review undertaken. [597] The Police had not intended to release information to the public concerning the identification of the palm print until they had had the opportunity to make further enquiries. However, two separate pieces of information relating to the palm print were released by the media over a period of time, both of which had a profound affect on the conduct of the review. [598] On 12 May 2006, Mr Gary Adshead published in The West Australian newspaper381 that a palm print had been identified, but not whose palm print it was, only that it belonged to a person currently in prison for a violent crime. The name was released by journalist Ms Suzanne Short on the ABC television news on 18 May 2006. [599] Anticipation of the premature release of the information that a palm print had been identified caused officers of the Special Crime Squad to execute a search warrant at Albany Prison and interview Simon Rochford before they were really in a position to do so. He was interviewed by Det Sgt Saunders on 11 May 2006, and denied involvement in the murder of Pamela Lawrence382. [600] Following the interview with Det Sgt Saunders, Simon Rochford was placed on suicide watch for a period of time and underwent a series of counselling sessions. On the morning of 19 May 2006, being the morning following being named on ABC television news as a prime suspect for the murder of Mrs Lawrence, he was found dead in his cell in circumstances which are ultimately matters for the State Coroner, but which appeared to be the result of selfinflicted wounds. [601] After Simon Rochford’s death, the Special Crime Squad continued its work. It closely examined the Brigitta Dickens case, including the precise circumstances of her death and those exhibits tendered in the 1995 trial of Mr Rochford which could still be found. 137 [602] One of the puzzling features of Andrew Mallard’s trial was that the murder weapon was never identified. In his so called “confessions” in the interviews of 10 and 17 June 1994, he had nominated as the murder weapon a Sidchrome wrench as drawn by him. However, tests conducted on a pig’s head in the presence of the Chief Pathologist, Dr Cooke and police on 24 June 1994, one of the material matters not disclosed to the defence prior to the trial, and further tests by Dr Cooke in 2002, had proved that such an implement could not have caused some of the distinctive and unusually patterned injuries suffered by Mrs Lawrence. Moreover, traces of blue paint and rust had been found in Mrs Lawrence’s injuries and Sidchrome spanners were not painted blue383, or at all and do not rust.

[603] On the other hand, the injuries to Ms Dickens had the same distinctive and unusual features as some of those sustained by Mrs Lawrence and traces of blue paint were found in Simon Rochford’s back pack (obtained by the Special Crime Squad) consistent with the traces found in Mrs Lawrence’s injuries. This suggested that the injuries to the two victims had been inflicted by the same weapon, namely, a weight collar attached to a hoe handle. This fact, together with his palm print on the counter of the Flora Metallica shop, and other evidence which emerged from the Cold Case Review, caused the Special Crime Squad to conclude in October 2006, that in regard to the murder of Mrs Lawrence: 1. Andrew Mallard was not the offender; 2. Mr Peter Lawrence was not a suspect; and 3. That if Simon Rochford were alive, the DPP would be consulted with a view to him being charged with the wilful murder of Mrs Lawrence. 11.2 Sandford Inquiry

[604] On 5 July 2006, the Commission received a notification pursuant to section 28 of the CCC Act from Assistant Commissioner Stephen Brown of the Western Australia Police alleging that Senior Constable Kirsten Sandford, employed in the Fingerprint Bureau, had released unauthorised information to an external source relating to Simon Rochford’s palm print. [605] Sen Const Sandford was interviewed by the Police Internal Affairs Unit, and admitted to advising her psychiatrist about the palm print identification, but denied telling her husband, Christopher Sandford, or anyone else. Christopher Sandford was a former police officer, who had ceased service in 2005. [606] The Commission conducted an investigation which included examining on oath in private hearings384 both Sen Cons Sandford and her husband . [607] During evidence on oath, Sen Cons Sandford acknowledged that she had told her husband about the identification of the palm print on the day of the discovery. Her explanation for telling him was that she was on…”such a 138 high” 385 and was excited about the Fingerprint Branch’s achievement, but she did not tell her husband whose palm print it was386. [608] Sen Cons Sandford denied making any telephone calls personally to the media, stated she did not encourage, ask or expect her husband to make any telephone calls to the media or to pass the information on to anyone else, and, although having suspicions that he may have made calls, did not know for certain that he had done so. [609] Christopher Sandford, during his evidence on oath, acknowledged receiving the information from his wife and, in response to a direct question as to whether he had told Mr Gary Adshead from The West Australian Newspaper about the palm print identification, made the comment… “I told him one month after coming – one month after coming into contact with that information”387. [610] As a result, the Commission concluded that the information that a palm print had been identified had been passed by Sen Cons Sandford to her husband, who in turn passed the information to Mr Adshead, who subsequently caused it to be published in The West Australian Newspaper on 12 May 2006. [611] The Commission formed the opinion that Det Con Sandford had engaged in misconduct pursuant to section 4(d)(v) and (vi) of the CCC Act and released the transcripts of the relevant hearings to the police for the purposes of considering if disciplinary action was necessary. Ms Sandford has since resigned from Western Australia Police. 11.3 Release of Simon Rochford’s name

[612] Following publication on 12 May 2006 that a palm print had been identified, there was speculation and interest in the identity of the person leaving the print, until Ms Suzanne Short disclosed on the ABC television news on 18 May 2006, that the palm print was that of Simon Rochford.

[613] The Commission examined a number of witnesses, including Ms Short, in private hearings to determine how she was able to identify Mr Rochford, and is satisfied that she did so as a result of investigative research carried out by her and others working with her in the ABC organisation. Ms Short attended the Commission in answer to a summons served on her. Upon her appearance she sought, through her counsel, a short adjournment to speak with the persons who might be regarded as her informants.388 After speaking with them, she returned and informed the Commission that those persons had no objection to her disclosing their names,389 after which she gave her evidence.

[614] Her research encompassed an examination of other violent murders around the time of that of Mrs Lawrence, which produced Mr Rochford’s name. Ms Short then confronted the Police media officer, Mr Neil Poh, and other police officers, and her information was neither confirmed nor denied by them. Correctly, Ms Short formed the opinion that the identified palm print belonged 139 to Simon Rochford and, after further discussion with police media officers, she named him in the TV News that evening as being a new suspect for the murder of Mrs Lawrence. The Commission has examined the research material on which Ms Short based her opinion and accepts that, using both the original information leaked to the media on 12 May 2006 and her investigative material, she was able to establish Simon Rochford’s name. There is no evidence of any further misconduct by any public officer other than that which related to the release of the earlier information on 12 May 2006.

CHAPTER TWELVE OVERVIEW 12.1 The Interviews [615] There were a number of factors which contributed to Andrew Mallard being convicted of a murder which he did not commit. The most significant of these factors was that, on at least three occasions, including once in the videorecorded interview, he confessed that he had killed Mrs Lawrence. In addition, he made a number of statements in the third person purporting to describe what the actual killer (being someone other than himself) would have done, which the jury could, and apparently did, construe as admissions of what he himself had done (the so-called “third party admissions”). [616] In addition to this, and related to it, is the fact that at no stage over a number of interviews did he provide a verifiable alibi for what came to be regarded as the relevant time, namely from approximately 5.00 pm to 6.40 pm on the evening of the murder.

[617] So why did he confess to a murder he did not commit, and what steps if any, were taken to check the validity of his apparent confessions? The answer to the first question is that he was mentally ill. He was remanded to Graylands Hospital on minor charges for assessment on the day following the death of Mrs Lawrence, and Dr O’Dea diagnosed that he was suffering a bi-polar condition, but was fit to be at large in the community.

[618] Both before his first arrest on 23 May and subsequently, but particularly during the period of the undercover operation (13 - 16 June) he was living a bizarre life in a fantasy world. Examples have been cited previously in this report, and do not need to be repeated in detail, but include such things as claiming to be an undercover police officer, and being able to speak six languages, proclaiming himself to be a Viking and dressing as a Highlander, squatting in premises and being a regular user of cannabis.

[619] Of course, some of his claims could be seen as, and probably were, part of his stock-in-trade as a con-man living on his wits, but some of them more likely demonstrated a loss of touch with reality; for example, claiming that in his interviews he believed the police were seeking his theories on what the real killer would have done, and that he was simply assisting them.

[620] Dr O’Dea gave evidence at the Voir Dire390 to the effect that Andrew Mallard was just as capable as a person not suffering from mental illness of telling the difference between fact and non-fact. However in the opinion of the Commission, this was not the right question, which should have been: In the light of his mental condition, is it possible that his confession may not be true? 142

[621] The police were conscious of the possibility of a false confession, and for this reason drew up a list of “twelve things only the killer would know”. This was later expanded to fifteen by the prosecutor at the trial, and the fact that Andrew Mallard had stated these matters in his interviews was relied on as, in effect, verifying the confessions. As it has now been established that Andrew Mallard was not the killer, these were not facts “which only the killer would know”, and this aspect of the matter has been discussed in Chapter 9. [622] What the police, the prosecutor, and also defence counsel, failed to do was to consider the number of errors which there were in the confessional material, the number of things which Andrew Mallard simply got wrong. These have also been previously discussed in Chapter 8, the most obvious of which was his inability to identify the murder weapon. A number of police391, for example, Det Sgt Shervill and Det Sgt Brandham, said they never believed that the wrench was the weapon, and the pig’s head testing tended to confirm this, yet no one seems to have questioned whether that fundamental mistake on Andrew Mallard’s part, especially when combined with his other mistakes, did not throw doubt on the reliability of the whole confession. It appears to have been passed off as possibly a deliberate inaccuracy by an offender who was trying to mislead police when appearing to make admissions. [623] Although the “twelve things only the killer would know” were tabulated in the Comprehensive Summary, there was no corresponding table of the mistakes. The attitude of the police appears to have been, having obtained the confessions, to advance their reliability by every means possible, rather than to look at both sides of the equation and to consider just how reliable the socalled confessional material really was. It is not sufficient to say that to do that was a job for the defence at trial; many of the mistakes were known only to the police.

[624] There is one worrying aspect of the interviews which has not previously been referred to. As Andrew Mallard was not the offender, it is difficult to see how some of the information stated by him in his interviews could have been known to him at all, and the question arises whether such information was fed to him in casual conversation either by investigating police or by the UCO, and then reproduced by him in the interviews. This applies for example to what he said about being seen by the “young girl” in the car. As he was not there, and only the barest details of the encounter were published in the media, the question arises, as to where he got the balance of the information such as the make and colour of the vehicle. He gave different versions of the make and colour, but one of his versions was correct.

[625] As to the position of the wounds to Mrs Lawrence’s head, Mr Mallard has claimed on a number of occasions that he was shown a Polaroid photograph, a claim which is denied by investigating police392. What is known is that in conversations with the undercover officer there was reference to a Sidchrome spanner393 and that washing clothing in salt water would remove traces of blood. Both these matters were reproduced in the interviews with Det Sgt Brandham on 17 June. 143

[626] There is no evidence that factual material was improperly fed to Andrew Mallard before or during the interviews, and the Commission has formed no opinion that it was; but it would help to explain how a mentally ill person came to confess to a murder he did not commit and was able to support such confession with verifiable facts. That some matters were discussed with the UCO was not known to the defence because the undercover operation was not disclosed. Under the latest guidelines such an operation would now be disclosed.394

[627] The case of Andrew Mallard demonstrates the problems which can arise when mentally ill persons are interviewed for lengthy periods by experienced police investigators without any support person present.

[628] The Commission therefore believes that special provision should be made for the interviewing of mentally ill persons, as is the case with indigenous persons, intellectually disabled persons and children. Such provisions could include that they only be interviewed in the presence of a psychiatric doctor or nurse, a lawyer or a family member of their choice. A psychiatrist should be required to certify that such person is fit to be interviewed, can distinguish between fact and fiction, and is likely to give truthful answers. A person should be regarded as mentally ill if he or she has been diagnosed with a mental illness within the previous three years, has been receiving psychiatric treatment within that period, or has been in a mental hospital, either as a compulsory or voluntary patient, within that time.

[629] The Commission acknowledges that an effort has already been made in this regard by the revised WAPOL Code of Conduct which was gazetted on 16 April this year395. That revised code expressly sets out principles for “Dealing with People with Disabilities”; but in the Commission’s view, more specific directions are desirable. 12.2 The Altered Statements

[630] The next factor which contributed to the wrongful conviction of Andrew Mallard was the alteration of the statements of a number of witnesses, but particularly those of Miss Barsden and Ms Englehardt. The changes to the statements of these witnesses changed the case against Mr Mallard by strengthening it considerably.

[631] In the case of Miss Barsden, who saw a man in the deceased’s shop at a time shortly before she was killed, by changing the colour and possibly the nature of the headgear the man was wearing, a person who could not have been Andrew Mallard became a person who probably was. This was how her observations were represented in Det Sgt Shervill’s Comprehensive Summary of Facts, how the case was opened by the prosecutor at the trial, and on which he relied on it in his closing address. 144

[632] Of almost as much significance were the major changes to the statement of Ms Englhardt. If she was correct in her original statement that on the afternoon of 23 May Andrew Mallard’s cap was hanging on the hook behind the door in her unit and that when he came in later that evening he had nothing on his head and his hair was wet, it meant that he was not the person seen by Miss Barsden through the shop window. Even if she was wrong on any or all of these matters, the fact that she had said them opened up a fruitful field for cross-examination to the defence and Ms Engelhardt, who had a habit of changing her story in any event, and could have been thoroughly discredited. If her timing of Andrew Mallard’s arrival at her flat was in doubt, his failure to provide a verifiable alibi for the period from 5.00pm until approximately 6.40pm would have become of much less significance. [633] The alterations to the statements of Katherine Purves and Meziak Mouchmore also had the effect of providing evidence that a person resembling Andrew Mallard had been present in the area shortly before the murder, and was presented to the jury as having that effect, whereas based on their original statements those persons could not have been him. Finally in this regard was the alteration of Mr Lynch’s report by deletion of the results of the salt water testing, which would have raised further questions as to the reliability of the confessional material. 12.3 Non-Disclosure [634] Closely related to the matter of the altered statements is the issue of nondisclosure, particularly of the prior statements, the salt water testing of the clothing and the pig’s head testing of the wrench; the fault of which, except for the pig’s head testing, was that of Det Sgt Shervill, whilst the non-disclosure of the pig’s head testing was primarily the fault of the prosecutor, and to a lesser degree, that of Det Sgt Shervill. [635] If it had been disclosed, and the jury made aware that • the colours and possible nature of the headwear of the man seen by Miss Barsden had been changed, • the description of the clothing worn by the persons seen by Ms Purves and Mr Mouchmore had been changed, • the changes to Ms Englehardt’s statement remarked on above, • a wrench similar to that drawn by the accused could not have caused the deceased’s injuries, and • Andrew Mallard was wrong when he spoke of the person responsible washing clothing in salt water, the whole of the prosecution case would have been considerably weakened, if not totally discredited. 145 12.4 The Conduct of the Prosecution [636] The conduct of the trial by the Prosecutor in opening with the proposition that the murder weapon was a wrench when he had been informed that a wrench was not the weapon, or at least there were doubts about it, and failing to support that proposition by evidence from the pathologist that the wounds were consistent with a wrench as drawn by the accused in the interview of 17 June has already been discussed in Chapter 9 and does not need to be repeated here, beyond recording it as a possible factor which contributed to the conviction. A further possible contributing factor was the emphasis placed on the 12 or 15 things which it was claimed only the killer would know, without any similar attention being paid to the demonstrable errors contained in Andrew Mallard’s account. 12.5 The Conduct of the Defence

[637] The defence of Mr Mallard was in the hands of Mr Hogan, a lawyer employed by the Legal Aid Commission, conducting only his second murder trial (by coincidence his first was that of Simon Rochford). As is normally the case, he lacked the resources available to the prosecution to carry out investigations, and probably saw little point in doing so, as many of the errors contained in Mr Mallard’s admissions were only known to be errors by the police.

[638] He no doubt had a difficult client and his instructions were presumably inadequate, and apparently, in part, misleading396. It would seem he was instructed that his client’s admissions were the result of him being assaulted by the police, but the failure of the hospital on two occasions to detect any injuries, together with his calm and upfront appearance on the video recorded interview, meant that such a claim was bound to fail.

[639] The Commission is reluctant to criticise Mr Hogan on account of any failure to ask particular questions or for any tactical decisions he made during the course of the trial, particularly when, as a result of the non-disclosure, he was at a distinct disadvantage. An application to adjourn the trial to obtain the services of a more experienced defence lawyer was unsuccessful397. 12.6 Similarities Overlooked

[640] One thing which has intrigued the Commission is that no one saw a link at the time between the murders of Pamela Lawrence and Brigitta Dickens, notwithstanding that they occurred within about seven weeks of each other, both victims sustained similar but distinctive injuries, both homicides were investigated by the Major Crime Squad, both suspects were interviewed by Det Sgt Brandham and both post mortem examinations were carried out by the same forensic pathologist, Dr Cooke. The murder weapon was known in 146 the case of Brigitta Dickens, but was not identified in the case of Pamela Lawrence.

[641] Pamela Lawrence was killed on 23 May 1994; the post-mortem carried out the following day; Mr Mallard was interviewed by Det Sgt Brandham on 17 June and arrested at Graylands Hospital on 19 July. Brigitta Dickens’ body was found on 17 July and Mr Rochford was charged by Det Sgt Brandham on 18 July after being interviewed by him the same day. Dr Cooke carried out the post-mortem examination on Ms Dickens also on that day.

[642] Det Sgt Brandham’s evidence to the Commission, was that he saw the murder of Mrs Lawrence as a burglary gone wrong and that of Ms Dickens as a domestic dispute and, whereas Andrew Mallard denied involvement or admitted it and subsequently retracted such admissions, Simon Rochford readily admitted he had killed Ms Dickens, but claimed he had no intention to kill her. Sgt Brandham was an investigator, not a pathologist, and he was concerned with identifying the offender and the circumstances of the offence, rather than the cause of death. The Commission regards his explanation as reasonable.

[643] Dr Cooke, on the other hand, was the pathologist who conducted both post mortems. He observed the wounds to both skulls and saw that the wounds to Ms Dickens were of a distinctive shape, and knew what weapon had been used to kill her. Seven weeks previously he had examined the skull of Mrs Lawrence and observed similarly shaped injuries, but he knew that neither he nor the police had been able to identify the weapon, and that it was still a mystery at the time he did the post-mortem on Ms Dickens. He did not see a connection, which the Commission accepts, but which it does find surprising. It would appear that he must have kept each post mortem in a separate compartment in his mind, and not done any lateral or cross-case thinking. 12.7 WAPOL in 1994-95

[644] As will appear from what has gone before, there appears to have been an attitude in the police in 1994-95 that in preparing a case investigators only looked to those matters which tended to inculpate the person to be charged and that any matters which might exculpate or cast doubt on that person’s guilt were ignored. How far this extended to other investigations is beyond the scope of this inquiry, but on a number of occasions police officers said that they would do things differently today, and there was direct evidence that some practices have changed in the meantime. For example, all previous statements of witnesses are now furnished to the defence as a matter of course and the forensics file for each investigation is now retained in a central area at the Forensics Branch.

[645] In these circumstances, and as the Commission has been looking at an historical rather than a contemporary situation, it is not in a position to assess current investigative procedures or make recommendations in respect of them. The Commission has spoken with representatives from the Western 147 Australia Police, who in 2006 were tasked with conducting a review of the Forensic Standard Operating Procedures relating to the investigation of homicides. As a result, the police have implemented a set of new standardised procedures which appear to have addressed many of the issues arising from this inquiry with regard to forensic analysis, forensic procedures and management and review of forensic information. [646] The Commission has also received a copy of the Western Australia Police revised Code of Conduct as published in the Police Gazette on 16 April 2008. It is acknowledged that several issues highlighted during this inquiry have been considered when preparing the document. However the document only addresses the relevant issues in very general terms, for example: dealing with persons with a disability (p 9) and the need to treat individuals fairly, noble cause corruption, biased investigations and non disclosure of critical evidence (p 11). It is in very general terms and in the opinion of the Commission some thing much more specific and detailed is required.

[647] One particular matter of concern which did emerge however was the problem of communicating fresh information or directives to police officers, an issue which arose in relation to the DPP’s Guidelines and the requirement for certification in November 1993. These were published in the Police Gazette for the information of all police, but there was evidence before the Commission that generally police do not read the Police Gazette, except as to available appointments and promotions398. [648] In relation to the latest letter from the DPP with the list of “Items not Commonly Disclosed” (2007), the Commission notes that the Commissioner of Police has issued a General Broadcast, but whether that will be more widely read or acted upon than the Police Gazette would seem to be a matter of conjecture. It would appear that what is needed is a system whereby whenever there is legislation, fresh authoritative case law, or DPP Guidelines which relate to the conduct of criminal investigations or the admissibility of evidence in such cases, police officers affected by such matters be required to attend formal seminars or meetings at which they can be made familiar with such matters.

CHAPTER THIRTEEN MR JOHN QUIGLEY MLA 13.1 Introduction [649] Within the general Scope and Purpose of the Commission’s investigation are matters relating to the conduct of Mr John Quigley, Member for Mindarie in the Legislative Assembly. These matters, which occurred in June 2002, relate to allegations that he made threats to the UCO, referred to in this inquiry as “Gary”. [650] These events occurred in the context of Mr Quigley’s efforts to obtain information to include in the petition for clemency which he was at that time preparing. [651] The Western Australian Police Service made a complaint in relation to these matters to the Anti-Corruption Commission and such complaint has been taken over by this Commission pursuant to section 20 of the CCC Act and its general powers under section 18 as a “matter arising out of or in connection with” the conviction and appeals of Andrew Mallard. 13.2 Law [652] The CCC Act contains particular provisions in relation to allegations of misconduct other than serious misconduct made against members of Parliament “in the performance by him or her of the functions of that office”399. Such allegations must be referred by the Commission to the presiding officer400, in the case of Mr Quigley, the Speaker of the Legislative Assembly401. [653] Upon receipt of the referral, the presiding officer must require the Privileges Committee of the House to inquire into the matter402, but if the Privileges Committee resolves to carry out its own inquiry, it must do so by directing the Commission to act on its behalf403. [654] For the purposes of an inquiry referred to the Commission under section 27B (2), the Commission is given additional powers404 and is required to act in conformity with the Parliamentary Privileges Act 1891405, and there are specific provisions about reporting in such cases. [655] Notwithstanding the references in section 27B (6),(7) and (8) of the CCC Act to the Parliamentary Privileges Act, and the heading to section 27A, it would appear that the provisions of section 27A and 27B apply not only to cases involving parliamentary privilege, but to all allegations of misconduct by a member in the performance by him or her of the functions of that office; and the two concepts do not necessarily correspond, although there is considerable overlap. 150 [656] Another matter in relation to the text of the CCC Act is that section 27A(3) provides that in relation to allegations of misconduct other than serious misconduct within that section, section 22(3) and Division 4 of Part 2 are excluded – but the CCC Act contains no Division 4 of Part 2. It may be that Division 4 of Part 3 was intended, but that is not what Parliament has enacted. It is understood that this anomaly has already been referred to in the Review of the CCC Act by Ms Gail Archer SC (February 2008) Chapter 21.13. [657] The overall effect of these provisions is that if the allegation is one of serious misconduct, the Commission is to conduct its inquiry in the ordinary way, but if it is an allegation of misconduct other than serious misconduct, and relates to the performance by the member of Parliament of his or her functions as such a member, the allegation must be referred to the relevant presiding officer and section 27B applies. [658] The Commission is satisfied that, in the course of these events, Mr Quigley was acting in his capacity as a member of Parliament, as well as solicitor, and that the allegation is an allegation of a criminal offence punishable by two or more years imprisonment, namely making threats contrary to section 388A of the Criminal Code and is therefore an allegation of “serious misconduct” as defined by section three of the CCC Act. It is therefore appropriate that it be investigated by this Commission. 13.3 Meeting at Plantation Restaurant [659] At the same time that Mr Quigley was examining the transcripts of Andrew Mallard’s trial, other persons assisting Andrew became aware that an undercover officer had been involved in the police investigation. Those persons included Ms Egan and Mr Ian Trinder, a retired member of WAPOL, who had also joined those assisting Mr Mallard. Ms Egan and Mr Trinder also became aware of the identity of the undercover officer. [660] In May 2002, Mr Trinder made contact with the UCO and arranged a meeting with him. That meeting eventually occurred on 29 May 2002 at Plantation Restaurant in South Perth. At the time, Mr Quigley had not been told that the undercover officer had been identified, and did not find out about the Plantation Restaurant meeting until some time after it had occurred. [661] Prior to agreeing to meet with Mr Trinder, the UCO made contact with WAPOL’s Internal Investigation Unit. He made that contact because of his concerns at having been identified. Arrangements were made between the UCO and the Internal Investigation Unit to record the meeting at the restaurant. Both the recording and a transcript of that meeting were available to the Commission. [662] Of some significance to the events that followed was a portion of the meeting concerned with references to “grass”. That part of the conversation was as follows (“G” refers to the UCO and “IT” to Ian Trinder): 151 IT: But I suppose you’ve go the alternate, probably a fortunate moment now with this Royal Commission coming up if, if I don’t know your in, your involvement, I honestly don’t know, if you have got something to worry about. G: Well no I don’t because I can say to you my job was given to me on a piece of paper, this is the target, this is where he’ll be and that’s it and I mean the, the - - - IT: Well there’s a few peripheral things but ah they’re small things about the cannabis and that but that’s fuck all within - - - G: I’ve been there - - - IT: - - - the scope of this sort of shit. G: - - - that year, that’s wrong, a bit of grass. IT: Yeah yeah. [663] The UCO gave evidence to the Commission406 that the statement “that’s wrong, a bit of grass” was a statement by him that he did not supply Mr Mallard with any “grass” or cannabis at all. [664] Following the meeting at Plantation Restaurant, Mr Quigley was made aware of both the existence, and the identity, of the UCO. He had, by that time, independently come to the view that there must have been an undercover operation involved in the investigation of Andrew Mallard in 1994. [665] After being apprised of the UCO’s identity, and the meeting at Plantation Restaurant, Mr Quigley resolved to contact him to seek a statement from him. He specifically wished to obtain a statement as to the supply of cannabis to Andrew Mallard during the course of the undercover operation. In his evidence before the Commission407 he stated that the information which he had that the UCO had supplied cannabis to Mr Mallard came from two sources: (a) from Mr Trinder, who advised Mr Quigley and others that at the Plantation meeting the UCO had admitted doing so (this information was, in fact, not correct); and (b) from Mr Mallard, who had given instructions to Mr Quigley that Gary had supplied him with cannabis and a bong during the course of the undercover operation. 152 13.4 Telephone Messages to the Undercover Officer [666] Mr Quigley’s first contact with the UCO was by telephone on 15 June 2002 (a Saturday). There is no recording of that conversation, although a running sheet maintained by WAPOL408 records the substance of the conversation being “John Quigley had contacted him requesting he supply a statement over the Mallard issue. Quigley was querying with [Gary] if Mallard had smoked cannabis in his presence in the week leading up to his arrest”. Mr Quigley agreed in evidence that, while the telephone conversation was longer than suggested by this summary, the summary appeared to be generally correct. [667] There was a second conversation on 16 June 2002 (Sunday) in which Mr Quigley again indicated that he wished to obtain a statement from the UCO. On 16 June 2002 the Running Sheet records further contact from Mr Quigley. In this conversation Mr Quigley is recorded as making specific reference to the allegation that the UCO had informed Mr Trinder during the Plantation Restaurant meeting that he had supplied cannabis to Mr Mallard. [668] In evidence409 Mr Quigley agreed that the alleged admission at the Plantation Restaurant was discussed. He went on to say that in that conversation he was also “begging him to come forward and tell the truth to the Royal Commission or the – to the Royal Commission or to the DPP. So I’d be continually begging him to tell the truth”. The reference to the Royal Commission is a reference to the Police Royal Commission which commenced in 2002. [669] Mr Quigley also gave evidence, which was corroborated by the DPP, Mr Cock, that about that time he had made contact with Mr Cock to seek an indication as to whether a certificate of immunity might be provided in the event that an officer came forward with information in relation to the Mallard investigation. In that context Mr Quigley advised Mr Cock as to the allegations concerning cannabis and, according to Mr Quigley, the response he received from Mr Cock was that a certificate of immunity was within the range of things available if the allegations were correct, although it would be necessary for a statement to be provided. [670] Mr Quigley also stated that he was in contact with Mr Michael Dean from the Police Union in an effort to arrange for a lawyer, if necessary, to take a statement from the UCO for the purposes of obtaining the certificate of immunity. [671] There was at least one other unrecorded conversation between Mr Quigley and the UCO, on 18 June 2002. The Running Sheet from WAPOL indicates that in that conversation Mr Quigley stated that he would be “going to the press”. Mr Quigley’s evidence was that he could not recall that phone conversation. [672] After that phone conversation Mr Quigley and the UCO did not speak to each other again. Mr Quigley, however, left a series of messages on the UCO’s mobile phone voicemail on the ensuing days. Those messages were lawfully 153 recorded and both the recordings of them and transcripts were available to the Commission. Edited versions of the recordings were played during the course of Mr Quigley’s examinations before the Commission on 4 September and 30 October 2007. [673] It is not necessary to detail the content of all of those telephone messages. It suffices to note that Mr Quigley left a series of messages for the UCO in the ensuing days which clearly demonstrate an increasing level of agitation (or in his own words, desperation) on Mr Quigley’s part. By way of example, the first recorded message at 11:57am on 18 June was relatively innocuous. Mr Quigley stated410: It’s midday, it’s John Quigley. I rang back on the 3 hours as suggested by you, but they have told me you have left via your own vehicle. I have just spoken at length to the Director of Public Prosecutions and to Michael Deane. You are being provided with an independent lawyer. I need to contact you urgently because I have got to keep these other people at bay. Please trust me, I haven’t done a thing wrong. [674] By Thursday, 20 June 2002, Mr Quigley had not heard back from the UCO, despite a number of messages being left. A message left at 8.25 am on that day was as follows411: Good morning (name). John Quigley. Right, as far as I’m concerned now, you have deceived me. I can understand that because you’re under pressure, but that won’t go well in the long haul. I’ve discussed with Peter Coombs, this whole situation, on a confidential basis last night. He agrees I now have enough evidence to name you in the Parliament, which will happen next week unless you change, unless you have a change of heart and wish to cooperate. The Director of Public Prosecutions has asked that I take a statement from you, but I’m prepared to take it through an independent lawyer. I’m not prepared to let this person rot for 30 years any longer. I can understand your concern. Now, you’ve gone to Darwin, you’ve told me, to tell your father, so I will be naming him as well as a person who knows about this, knows about if from his son (name), who drove from (place) to Darwin to tell him on Wednesday, arriving there on Thursday. I don’t want to do any of this, (name). Please believe me. You’re not - - - [675] The message continued:412 This message carries on from the previous that ran out. So, Peter Coombs understands it all, he will be contacting you as a friend on my behalf today to let you know what a corner you are now in. I don’t believe the case officers, for one moment, will back you up. They will leave you out on their own – on your own, and say that what you did, had nothing to do with them, which will leave the conspiracy, but they’ll try and contain the conspiracy to the UCO’s. 154 So, sorry it’s come to this mate. Apologise to (name), will you, but I’ve done my best, there’s been no cooperation from you, therefore, as far as I’m concerned, in my sights are both you and (name), unless you have a change of heart. Unless I hear from Coombs you’ve had a serious change of heart, that’s the way the cards are going to fall. See you in the witness box mate. Consistent with the reference to the UCO’s father in the first of the above messages, the reference to “apologise to (name)” was a reference to the UCO’s father. [676] A message was left later that afternoon, specifically referring to members of the media who would “be in town next week for my speech in the Parliament”.413 [677] At 3.51 pm on 20 June 2002 Mr Quigley left the following message, now making reference to the UCO’s former controller: Oh, hi (name), Quigley again. More info for you – located your controller, bingo. You’re putting yourself further and further out by yourself. Please, I beg you, contact Michael Dean urgent, or Peter Coombs urgent. You know who he is, he’s in the job it is in Kal, I don’t want to say it on the phone. So if you’re protecting him you are the only person who will be without protection. You may ring him and find out whether he’s been contacted, re the Mallard matter. Oh yes he has, so not only will you be named, but your controller will be named if you do not cooperate. It’s not a threat, I can’t get the Certificate of Immunity or recommend a Certificate of Immunity for someone who won’t talk to us. You might already be at the Royal Commission, that’s okay, but I know who your controller is and I need the truth for Mallard. So don’t think you’re protecting him. Pretty soon his name will be on Four Corners too and I don’t think he will thank you. He is in the job. [678] That message was continued on the following tape414 and ended with the statement: Please contact Michael Dean, Peter Coombs, as a matter of urgency, but, or you’re going to destroy, not only your family, but a lot of other families as well. [679] The following weekend (22 - 23 June 2002) coincided with the State Conference of the Australian Labor Party. It was Mr Quigley’s intention to deliver his petition to the Attorney General, Mr Jim McGinty MLA, on the Sunday evening, 23 June 2002. [680] During that day, Mr Quigley left a further message on the UCO’s mobile phone at 11:55am.415 155 (name), it is 11.55 Sunday, Quigley. You still haven’t contacted me. I’m now preparing Trinder’s affidavit, which has got your name in it, that you’re a UCO, that all that conversation you had – the bikies, the druggies, the lot, and Plantations of course. By not contacting me, the only way I can go forward is through Trinder and I would say that by tomorrow, your name, your place of employment and telephone numbers are going to be the biggest news in Western Australia. No doubt. It’s front page on the Aus tomorrow. You should contact me as a matter of urgency if you wish to change the course of events. There is still an immunity I could obtain for you today and no publication of your name. Now, I’ve got (suppressed) name, your controller. He is down from Kalgoorlie now. He might be protected, he might point the finger at you. If you don’t contact me quickly well, it’s out there – (suppressed) sites in the, in the affidavit, your father, the whole trip. I told you this earlier in the week. I beg you to come forward today and tell me the truth so you can get the Certificate of Immunity. This is John Quigley. I’ll be at this electorate office for just a few hours – 9341 2995, or you might choose to ring the union president again, Michael Dean – your call. You know his number. I’ll give you his mobile number. His mobile number is – where is it? You can track his mobile number down, you were a UCO, that’s easy, through the union – 9321 2155. You ought act within minutes. The Australian have sent their article for the front page tomorrow to the lawyers in Melbourne. This is now urgent. People are going to drop. Bye. [681] The reference to “Trinder’s affidavit” is a reference to a statutory declaration made by Mr Trinder on 23 June 2002. Among things recorded in that statutory declaration is the following relating to his meeting with the UCO at the Plantation Restaurant: 42. I said, “Your incident with Andrew at the Tradewinds, is probably not a huge worry, you giving him something.” (The UCO) said “Look I gave him a bit of “green” I’m not worried about that, that’s nothing in this business.” 43. I said “No I suppose it just fades into insignificance when compared to this thing.” I put to (the UCO) that he met Andrew at Gino’s in Fremantle and (the UCO) replied “Yes, I was get to know him, get his confidence and be-friend him. 13.5 Identifying the Undercover Officer [682] The petition, including the statutory declaration of Mr Trinder, was handed to the Attorney General later on 23 June 2002. Two days later (25 June 2002) Mr Quigley held a press conference in the Fern Garden at Parliament House. At that conference Mr Quigley, in some form, provided the details of the UCO to the assembled media. He was examined in the Commission as follows416: 156 I know you didn’t call them together but you appeared among them. Is that so? - - - I did. Did you in fact provide them with the contact details of Gary"? - - - I wouldn’t deny that. All right? - - - If someone said I did, I wouldn’t deny that. Well, I think at the private hearing someone said that I’d held – someone had held up a – I’d held up a bit of paper with his phone number on it. I don’t deny if that’s the - - - I’m not interested in the means by which you did it, Mr Quigley, but I think at the private hearing you agreed that you had provided those contact details. Correct? - - - Yeah. [683] Following the press conference in the Fern Garden, and before Mr Quigley made any address in Parliament in relation to the matter, which he intended to do on Friday 28 June 2002, the Attorney General arranged for Mr Quigley to have access to the files of the DPP and so he attended his offices on Saturday 29 June 2002 at which time he was handed a copy of the Comprehensive Summary of Facts and Mr Cock pointed out the passage concerning the inconsistency between a wrench and Mrs Lawrence’s injuries. That led to an Amended Petition, which was ultimately the Petition referred to the Court of Criminal Appeal. [684] On the following working day, Monday 1 July 2002, Mr Quigley appeared on a radio interview on 6PR. The Commission did not have access to a recording of that radio interview although a transcript of it is available417. That transcript reveals that Mr Quigley used a variant of the UCO’s proper name on a number of occasions. It is not possible now to say whether the variant of the name in the transcript was an error made by Mr Quigley at the time, or a transcription error from the recording. When asked about this issue at his private hearing, Mr Quigley stated that his “best estimation [is] that that would be mistake by the typist would be my honest answer”418. 13.6 Discussion [685] These allegations were initially investigated by the Anti-Corruption Commission who sought an advice from the DPP which was furnished under the heading “Investigation Report” dated 6 January 2003419. [686] Subsequently the A-CC referred the matter back to the DPP for action to be taken, but the latter took the view that no further action should be taken until Andrew Mallard’s appeal processes were complete. By that time the functions of the A-CC had been taken over by this Commission. 157 [687] The matter was referred to Mr James MacTaggart, a Senior State Prosecutor in the office of the DPP who, after conferring with the DPP, Mr Cock, by letter dated 29 May 2006420, advised the Commission: The Director agreed with my advice that the statements uttered by Mr Quigley to the former undercover operative are capable of amounting to a prima facie case of making a threat with intent to compel a person to do an act which the person is lawfully entitled to abstain from doing, contrary to section 338A of the Criminal Code but that, rather than prosecute Mr Quigley on indictment for the criminal offence, his conduct should be referred to the Legal Practice Board, the disciplinary body which regulates the conduct of legal practitioners. However nothing was done to pursue either course pending the outcome of this Commission’s examination of Mr Quigley’s conduct. [688] Submissions on behalf of Mr Quigley which included written opinions of two Queen’s Counsel may be summarised under four headings: (1) That the CCC is not permitted to publish an opinion that Mr Quigley has committed an offence; (2) That the facts relating to the matter do not constitute a prima facie case of an offence under section 338A; (3) That in any event, the telephone messages left by Mr Quigley are protected by parliamentary privilege because they related to what Mr Quigley intended to say in Parliament; and (4) Even if the Commission is of opinion that Mr Quigley has engaged in misconduct it should in all the circumstances exercise its power under section 18(3) of the CCC Act to determine that no further action against him is warranted. [689] Section 4(c) of the CCC Act provides that “misconduct” occurs if a public officer, whilst acting or purporting to act in his or her official capacity, commits an offence punishable by 2 or more years imprisonment, section 22(1) authorises the Commission to make assessments and form opinions inter alia as to whether “misconduct” has or may have occurred, and section 84 authorises the Commission to include in its report statements as to any of its assessments, opinions and recommendations. It follows that the CCC Act therefore authorises the reporting of opinions that “misconduct” within section 4(c) has occurred. That necessarily involves an opinion that a public officer has committed an offence punishable by 2 or more years imprisonment, and to justify the opinion the report must set out its reasons for such opinion, including identifying the offence involved. [690] It is in that context that section 23 must be examined. Subsection (1) of that section provides that the Commission must not publish a report finding that a particular person has committed a “criminal offence” or a “disciplinary 158 offence”, but subsection (2) (not referred in the opinion submitted to the Commission) also provides that an opinion that “misconduct” has occurred is not to be taken as a finding or opinion that a particular person has committed a “criminal offence” or a “disciplinary offence”. In construing subsection (1), one cannot ignore subsection (2). It is to be observed that the two subsections refer to different concepts: subsection (1) refers to a “criminal offence” or a “disciplinary offence” whilst subsection (2) refers to “misconduct”. [691] It follows that in forming an opinion that “misconduct” within section 4(c) has occurred, the Commission must form an opinion that a particular person has committed the requisite offence, but the publication or report that “misconduct” has occurred within section 4(c) is not, and is not to be taken as a finding or opinion that a particular person has committed a “criminal offence” or “disciplinary offence”. [692] To construe the relevant provisions in any other manner would have the effect of preventing the Commission from ever forming or reporting an opinion that misconduct within section 4(c) had occurred, and would render that paragraph otiose. Similar problems would arise in relation to paragraph (d) because (d)(v) and (vi) respectively refer to “an offence” and a “disciplinary offence”. [693] So far as is relevant, sections 338 and 338A of the Criminal Code provide: 338. … In this Chapter a reference to a threat is a reference to a statement or behaviour that expressly constitutes, or may reasonably be regarded as constituting, a threat to – (a) … (d) cause detriment of any kind to a person … 338A. … Any person who makes a threat with intent to – (a) … (d) compel the doing of an act by a person who is lawfully entitled to abstain from doing that act, is guilty of a crime … This section was considered by the Court of Criminal Appeal in Tracey v The Queen421, a case against a trade union official who was alleged to have threatened two business proprietors (husband and wife) that he would organise a picket unless they withdrew an application which they had made to cancel or suspend their apprentice’s apprenticeship. 159 [694] Kennedy J, with whom White J generally agreed, held that to constitute the offence (a) whether the words used constituted a threat must be looked at objectively; (b) the belief of the persons to whom the alleged threat was directed is not relevant; (c) the intent must be to “compel” rather than to merely “persuade”; (d) the threat must relate to something the person allegedly threatened is not legally obliged to do Kennedy J also held that (e) the detriment to be caused need not be an unlawful detriment, while Wallworth J held that the threat must be made without lawful excuse, and White J held that the “detriment” in section 338A(d) means “loss, damage or injury”. [695] The Commission is satisfied that, looked at objectively, the messages left for the UCO on his mobile telephone answering service constituted a “threat” within the ordinary meaning of the word. [696] They also related to something which the UCO was not obliged to do. What Mr Quigley was seeking at the time of the alleged threats was that the UCO would go to the Royal Commission and tell the truth about the undercover operation. Although he believed at the time (on reasonable grounds) that the UCO had supplied Andrew Mallard with cannabis, he did not tell him what he was to say, but only to tell the truth. [697] If he received a summons from the Royal Commission, the UCO was bound to attend and if he attended and gave evidence, either voluntarily or under compulsion, he was bound to tell the truth; but he had not received any summons, and so was not bound to attend. [698] Alternatively Mr Quigley wanted the UCO to make a statement for the DPP or to himself so that it could be used in support of Andrew Mallard’s clemency petition. Once again, although if he made a statement, the UCO was bound to tell the truth, he was at the time under no legal compulsion to make a statement. The Commission is therefore satisfied that the alleged threats were directed to having the UCO do something which he was not at the time legally bound to do. [699] However the alleged threats must also be intended to “compel” the doing of the act in question. As Kennedy J said in Tracey v The Queen: 422 160 Dictionary definitions of “compel” commonly take the form of ‘to urge irresistibly, to constrain, to force’. The meaning of ‘compel’ contrasts with the meaning of “persuade”… His Honour had previously423 quoted from the dictum of Lush J in Wood v Bowron: 424 But I apprehend that it is the very essence of a threat that it should be made for the purpose of intimidating or overcoming the will of the person to whom it is addressed. [700] In the Commission’s assessment, Mr Quigley’s messages were not intended to force, constrain, intimidate or overcome the will of, the UCO, but rather to persuade or encourage him, to go to the Royal Commission or make a statement, and so the Commission is not satisfied that his messages left on the UCO’s voice mail could constitute an offence under section 338A and consequently is not satisfied that he engaged in serious misconduct within the terms of the CCC Act. [701] On the other hand, as a solicitor of, at the time, almost 30 years standing, and particularly in the light of his experience as solicitor for the Police Union, Mr Quigley must have known that the disclosure of the identity of undercover police officers is undesirable and improper, and he agreed that this was generally so.425 It was therefore undesirable that he resorted to the threats he did, even though his motives were to secure a desirable objective, namely the reversal of what he believed was (and was ultimately proved to be) the wrongful conviction of an innocent man. [702] His conduct in making the threats cannot be condoned, but for the reasons given, the Commission is not satisfied that he engaged in serious misconduct within the terms of the CCC Act. [703] Although not relevant to the issue of whether an offence has been committed, it is worth noting that the alleged “threats” achieved nothing – the UCO did not make a statement and did not tell the truth about the bong until confronted with the relevant recorded telephone messages before this Commission, after previously denying it, and has consistently denied, and still denies, supplying cannabis. In fact Mr Quigley achieved his object of obtaining access to the police files and presenting a Petition which ultimately led to Mr Mallard’s vindication without any co-operation from the UCO. [704] The third submission on behalf of Mr Quigley was that the telephone messages left by Mr Quigley were protected by parliamentary privilege because they related to what he intended to say in Parliament, but the Commission rejects such submission. Things said outside Parliament about what a member intends to say in Parliament are no more protected by parliamentary privilege than is the repeating outside Parliament what has already been said in Parliament (other than fair reporting by the media of the proceedings of Parliament). 161 [705] The case to which the Commission was referred in this regard, namely Gangemi & Anor v The Western Australia Farmers Federation (Inc)426 dealt with an entirely different issue, namely whether the courts could examine the reasons why members voted in Parliament as they did. [706] As the Commission has not formed an opinion that Mr Quigley has engaged in serious misconduct within the terms of the CCC Act, it becomes unnecessary to consider section 18(3).

CHAPTER FOURTEEN OPINIONS, RECOMMENDATIONS AND ACKNOWLEDGEMENTS 14.1 Commission Opinions [707] For the reasons stated previously in this Report, the Commission has formed the following opinions as to misconduct: 1. That Det Sgt Caporn engaged in misconduct within section 4(d)(ii) and (vi) of the CCC Act in that writing the letter to the Police Prosecutor dated 17 June 1994 containing errors and incorrect statements constituted the performance by him of his functions in a manner which was not honest or impartial and could constitute a disciplinary offence contrary to regulation 606(b) of the Police Force Regulations 1979, providing reasonable grounds for the termination of his employment as a public service officer under the PSM Act. [Refer paragraphs 327-337]. 2. That Det Sgt Shervill engaged in misconduct within section 4(d) (ii) and (vi) of the CCC Act in that requesting Mr Lynch to delete from his report all reference to the salt water testing constituted the performance by him of his functions in a manner which was not impartial and could constitute a disciplinary offence contrary to regulation 605(1)(b) of the Police Force Regulations 1979, providing reasonable grounds for termination of his employment as a public service officer under the PSM Act. [Refer paragraphs 355-364]. 3. That Det Sgt Shervill engaged in misconduct within section 4(d)(ii) and (vi) of the CCC Act in that causing the witnesses Katherine Barsden, Michelle Englehardt, Meziak Mouchmore, Katherine Purves and Lily Raine to alter their statements as they did without any reference in their final statements to their earlier recollections, involved the performance of his functions in a manner which was not honest or impartial and could constitute a disciplinary offence contrary to regulation 605(1)(b) of the Police Force Regulations 1979, providing reasonable grounds for termination of his employment as a public service officer under the PSM Act. [Refer paragraphs 365-442]. 4. That Det Sgt Caporn engaged in misconduct within section 4(d)(ii) and (vi) of the CCC Act in that causing the witnesses Michelle Englehardt, Meziak Mouchmore, Katherine Purves and Lily Raine to alter their statements as they did without any reference in their final 164 statements to their earlier recollections, involved the performance of his functions in a manner which was not honest or impartial and could constitute a disciplinary offence contrary to regulation 605(1)(b) of the Police Force Regulations 1979, providing reasonable grounds for termination of his employment as a public service officer under the PSM Act. [Refer paragraphs 365-442]. 5. That Det Sgt Shervill engaged in misconduct within section 4(d)(ii) and (vi) of the CCC Act in making false entries in the Running Sheets relating to the amendments to the statements of witnesses Katherine Barsden, Michelle Engelhardt, Meziak Mouchemore, and Katherine Purves involved the performance of his functions in a manner which was not honest and could constitute a disciplinary offence contrary to regulation 606(a) of the Police Force Regulations 1979, providing reasonable grounds for termination of his employment as a public service officer under the PSM Act. [Refer paragraphs 365-443]. 6. That Det Sgt Shervill engaged in misconduct within section 4(d)(ii) and/or (iii) and (vi) of the CCC Act in that his failure to disclose to the DPP’s Office the prior statements of Katherine Barsden, Michelle Engelhardt, Meziak Mouchemore, Katherine Purves and Lily Raine, the original report of Bernard Lynch and details of the unsuccessful efforts by police to find a tool capable of inflicting the injuries suffered by Mrs Lawrence’s, involved the performance of his functions in a manner which was not honest or impartial and/or involved a breach of the trust placed in him by reason of his employment as a public officer and could constitute a disciplinary offence, contrary to regulation 603(1) of the Police Force Regulations 1979, providing reasonable grounds for termination of his employment as a public service officer under the PSM Act. [Refer paragraphs 463-480]. 7. That Mr Kenneth Bates engaged in misconduct within section 4(d)(iii) and (vi) of the CCC Act in conducting the trial on the basis that the murder weapon was a wrench as drawn by the accused, but making no attempt to prove that such weapon could have caused the deceased’s injuries, particularly in circumstances where it was known that there was a problem about the pattern of some of the injuries, and involved a breach of the trust placed in him by reason of his employment as a public officer and could constitute a disciplinary 165 offence providing reasonable grounds for the termination of a person’s employment as a public service officer under the PSM Act. [Refer paragraphs 510-550]. 8. That Mr Kenneth Bates engaged in misconduct within section 4(d)(iii) and (vi) of the CCC Act in that failing to disclose to the defence the results of the pig’s head testing of the wrench constituted or involved a breach of the trust placed in him by reason of his employment as a public officer and could constitute a disciplinary offence providing reasonable grounds for the termination of his employment as a public service officer under the PSM Act. [Refer paragraphs 485-490 and 543-550]. 14.2 Recommendations [708] The Commission makes the following recommendations: 1. That the Commissioner of Police give consideration to the taking of disciplinary action against Assistant Commissioner Malcolm William Shervill and Assistant Commissioner David John Caporn. 2. That the Director of Public Prosecutions gives consideration to the taking of disciplinary action against Mr Kenneth Paul Bates. 3. That consideration is given by the Commissioner of Police to making special provision for the interviewing by investigating police of mentally ill suspects. 4. That whenever there is legislation, fresh authoritative case law, or DPP guidelines which relate to the conduct of criminal investigation or the admissibility of evidence in such cases, senior police officers affected by such matters be required to attend formal seminars or meetings at which they can be made familiar with such matters. 5. That whenever the police obtain advice from the Office of the Director of Public Prosecution such advice be furnished in writing setting out, at least, the material considered, the opinion and the grounds upon which such opinion is based; or in cases of urgency, a detailed contemporary note should be made, preferably by the DPP officer or his secretary, and also by the police, setting out the matters specified. 6. That Mr Andrew Mallard gives consideration to raising a complaint with the Legal Practitioners Complaints Committee (LPCC) regarding the conduct of the trial by Mr Kenneth Bates. 166 (Division 3 of the Legal Practice Act 2003 deals with complaints made about legal practitioners. Section 175(2) specifies who can make a complaint to the LPCC including the Attorney General, the Legal Practice Board, the Executive Director of the Law Society, any legal practitioner or any other person who has had a direct personal interest in the matter.) 14.3 Acknowledgements [709] Before concluding the Report it is desirable and proper for the Commission to acknowledge and pay tribute to the efforts of those who believed in the innocence of Andrew Mallard and who by their time and efforts secured his freedom and ultimate vindication. Those persons whose efforts were particularly significant were Ms Colleen Egan, journalist, Mr John Quigley MLA, Mr Malcolm McCusker QC, and Clayton Utz solicitors, who all acted without remuneration. Without their respective efforts and expertise, Andrew Mallard would still be in prison, convicted of a wilful murder he did not commit.

ENDNOTES 1 E25349 and E24761 Notification from John Quigley. 2 P M Hall: Investigating Corruption and Misconduct in Public Office (2004), p 366 3 Independent Commission against Corruption Act 1988 (NSW),section 8(1)(c) 4 Report on Investigation into Conduct of the Hon J Richard Face, p 39 5 (1986) 7 NSWLR 503 at 524 6 Parliamentary Inspector’s Investigation and review of the Acts and Proceedings of the Corruption and Crime Commission concerning Mr John D’Orazio 7 Report no 28, 37th Parliament, 2007, Appendix 3 paragraph 18 8 Review of the Corruption and Crime Commission Act 2003 by Ms Gail Archer SC, February 2008, paragraph 603 9 Major Crime Running Sheet 10 Comprehensive Summary of Facts 11 Statements of Peter Lawrence, dated 21 July 1994, 27 March 2003, 7 August 2003 12 T2414-2434 13 R v Mallard (no 90 of 1995) 14 Mallard v The Queen (CCA 204 of 1995) Lib no: 960505A 15 Mallard v The Queen (24 October 1997) P 52/1996 16 Mallard v The Queen [2003] WASCA 296, 28 WAR I 17 Mallard v The Queen [2005] HCA 682, 224 CLR 125 18 WAPS Cold Case Review Report Dated December 2006 19 Statement of Jacqueline Barsden, dated 1 July 1994 20 Statements: Mr and Mrs Whitford, dated 13 July 1994 21 Statements of Peter Lawrence, 000 call 22 Statements Cons Susan Debnam, dated13 July 1994 and Cons Shaun Staples, dated 13 July 1994, Affidavit of Cons Shaun Staples 23 Statements: John Rigby, John Pampano, dated 17 June 1994 24 Affidavit of Shaun Staples 25 Major Crime Running Sheet p 1 26 Major Crime Running Sheet p 2 27 Det Sgt Brandham, 20 June 2007, Pr. T16-17. Det Sgt Shervill, 3 July 2007, Pr. T26 28 Major Crime Running Sheet p 2 29 Major Crime Running Sheet p 3 30 Confidential Report to the Coroner, dated 24 May 1994, authorised by Dr Cooke 31 Report of Bernard Lynch on 38 items, 30 August 1994, PrT 11 32 T585 33 Report by Bernard Lynch, dated 26 August 1994 34 Sgt Hofstee, 2 August 2007, Pr.T 237-241 35 Police Crime Scene Report 36 T 1911 168 37 T 2528, Fingerprint Records 38 T 2526 39 Post Mortem Report Pathologist Dr Clive Cooke, dated 24 May 1994 and appendums 40 Post Mortem Report, Pathologist Dr Clive Cooke, dated 24 may 1996 and appendums 41 Major Crime Running Sheet 42 Handwritten Statement of K. Barsden with sketches, dated 24 May 1994 43 Police Artist Drawing - Identikit 44 Signed and Typed Statement of K. Barsden 45 T1903 46 Records contained in HOLMES Case Management System 47 HOLMES Serial Message M22, 24 May 1994 48 Complaint to Ground Search Warrant for residence of Lloyd Peirce 21/630 Stirling Highway Mosman Park (E13716) 49 Handwritten Statement of Lloyd Peirce, dated 25 May 1994 50 Typed Unsigned Statement of Lloyd Peirce 51 Holmes Serial Message 57, Action 61 52 Holmes Serial Message 57, Action 51 53 Action Write Off by Det Sgt Caporn, Holmes Message 57, Action 51 54 Holmes Serial Message 57, Action 51 55 Statement of Mr Graham Peverall, dated 26 June 1994 56 Statement of Lloyd Peirce – undated, obtained by Mr L. Robertson, Private Investigator 57 Letter to P. Hogan from PI Consultants, dated 6 June 1994 58 T2969 59 Cold Case Review Report, dated December 2006 60 Statement of Lloyd Peirce taken by Major Crime Squad 61 Drawing by Lloyd Peirce 62 T537 63 T554-558 64 Report of Sgt Hyde, 3 February 1993 (Part 111), Det Sgt Caporn Written Submission to CCC January 2007 65 Written Submission by Det Sgt Caporn Para 143 66 HOLMES Serial Message 57, Action 61 67 In Section 86 Submissions, Det Sgt Caporn referred the fact that the relevant entries were endorsed “checked and completed” and initialled by the office based investigation manager, but this appears to be a reference to Cons Ripp who was operating the HOLMES system, one of whose functions was to write off an entry on the computer when it was completed (T1334). It was also claimed that there was a system in place for reviewing those actions which had been written off (see E15761), but there was no evidence as to how it operated in practice during this investigation. 68 E14401 HOLMES Action No. 21 69 E14400 HOLMES Action No.23, Message 30 169 70 Department of Defence Medical Records of Andrew Mallard E38755, E12733 71 E9698, E12903 Medical Records Andrew Mallard 72 Psychiatric Report to Court, by Dr Jeremy O’Dea, dated 8 June 1994 73 Psychiatric Report Andrew Mallard, Dr O’Dea, dated 19 July 1994 74 Voire Dire Transcript, Dr O’Dea, 4 November 1995 75 Police Interviews with Andrew Mallard 76 Police Lockup Records 77 Statement of Brettingham Dell, date unclear on statement 78 Police Lockup Records 79 E13300 Statement of Mr Graham Peverall, dated 29 June 1994 80 E13639 Handwritten Statement, Michelle Engelhardt, dated 29 May 1994 81 Statement of Michael Buhagiar, dated 25 June 1994 82 TT801 83 Statements of Mr and Mrs Whitford, dated 25 May 1994 84 Statement of Mr Ian Sharp, dated 21 December 1994 85Police Notes of Interview with Andrew Mallard 26 May 1994 86 Statement of M. Buhagiar, dated 25 June 1994 87 Police Notes of Interview with Andrew Mallard 26 May 1994, 27 May 1994, 30 May 1994, 2 June 1994 88 Search Warrant Executed at Graylands Hospital, 30 May 1994, Search Warrant Executed at Michelle Englehardt’s flat 1 June1994 89 E13289 Briefing Notes prepared by Det Sgt Brandham 90 E13195 Surveys completed by Det Carter 91 Evidence of Sgt Caporn, T364-370 Det Sgt Shervill 3 July 2007 Pr T 124-132 92 Concise Oxford Dictionary, Sixth Edition (1976), p 1164 93 Macquarie Dictionary, Fourth Edition, p 1233 94 Major Crime Running Sheet, p 19-20 95 Notes of Police interview with Andrew Mallard, 27 May 1994 96 Major Crime Running Sheet p 50-52, p 54, p 56, p 62 97 Major Crime Running Sheet, p 55 98 Major Crime Running Sheet, p 55 - 56 99 T396-404 100 T2938-2944, T2982-2983 101 Police Notes of Interview with Andrew Mallard, 10 June 1994 102 T378-380 103 T378-380 104 T378-380 105 Interview of Andrew Mallard. 10 June 1994 (E13489) 106 E13489 p 58 107 E13489 p 78 170 108 E13489 p 84 109 E13489 p 89 110 E13489 p 102 111 E13489 p 103 112 E13489 p 12 113 T443-445 114 TT947 115 Commissioner’s Guidelines, Police Manual 116 Det Sgt Shervill’s Police Notebook, p 97 117 TT102-103 118 T414-415 119 TT126-154 120 Evidence of Det Sgt Caporn, 27 June 2007, PrT123-126, 28 June 2007 Pr T 36 121 CCC24155, Comprehensive Summary Of Facts 122 Police Records of Surveillance Operation Huntsman 123 E14357 Application for Surveillance Operation Huntsman 124 Police Records of Surveillance Operation Huntsman 125 Police Records of Surveillance Operation, Tape 2, 15 June 1994 (E12358) 126 E12360 Police Records of Surveillance Operation Huntsman 127 E12359 Police Records of Surveillance Operation, Tape 2, 15 June 1994 128 E12370 Police Records of Surveillance Operation, Tape 3B, 16 June 1994,T901 129 T1004-1016 130 T890 131 T891-892 132 T886 133 T1011-1012 134 Misuse of Drugs Act 1981 section 6(2) 135 T891, T892, T778-782 136 T969 137 Evidence of Det Sgt Shervill, 4 July 2007, PrT31-36 138 Police Record of Surveillance Operation 139 Police Records of Surveillance Operation, Tape 3B, 16 June 1994, (E12370) 140 Police Records of Surveillance Operation, Tape 3B, 16 June 1994, (E12372) 141 Police Records of Surveillance Operation, Tape 3B, 16 June 1994, (E12372) 142 T817-819, T907-917 143 Evidence of Andrew Mallard, 10 September 2007, PrT52-53 144 Police Artist’s Drawing of jewellery described by P. Urquhart (E12377) 145 Statement of Timothy Urquhart, 24 August 1994 146 Police Artist’s Drawing of jewellery described by P. Urquhart (E12377) 171 147 Evidence of Rosemary Car, 3 July 2007, PrT16, T973 148 Comprehensive Summary of Facts (E24155) 149 Comprehensive Summary of Facts 150 Complaint (Ch No 31274) Assault a public officer (part of E13297) 151 Police Records of Surveillance Operation Huntsman 152 Bench warrant charge No 31274/94 (part of E13297) 153 T1418 154 Interview of A. Mallard 17 June 1994 155 Major Crime Running Sheet p 75 156 T1419-1420 157 T1155-1158 158 Interview Andrew Mallard 17 June 1994 159 TT101 160 Evidence of Det Sgt Brandham, 19 June 2007, PrT 106-108 161 Mallard v The Queen (CCA 204 of 1995) 162 Mallard v The Queen (CCA 204 of 1995) 163 Sell v The Queen (1995) 15 WAR 240 164 Mallard v The Queen (CCA 204 of 1995) 165 Pelham v The Queen (1995) 82 A CRIM R 455 166 Police Gazette 39 of 1996 167 Evidence of Det Sgt Brandham T101 168 Evidence of Det Sgt Brandham T103 169 Det Sgt Shervill’s Police Notebook (D180) 170 Andrew Mallard, 10 September 2007 PrT 39-40 171 Andrew Mallard, 10 September 2007 PrT 172 Interview of A. Mallard 17 June 1994 173 Report of Dr Steven J Strach, Handwriting and Questioned Document Examiner (E14473) 174 Report of Ms C Veitch, Handwriting and Questioned Document Examiner (CCC 46367) 175 T3591 176 TT 953 – 966 and TT 1032 - 1034 177 Comprehensive Summary of Facts p 22, Police Interview Andrew Mallard 10 June 1994 178 15 Things, Author Ken Bates, CCA Appeal 135/2002, Trial Mallard v The Queen 179 Comprehensive Summary of Facts p 25 & 26, Det Carter 19 June 2007 PrT 76-77, Det Sgt Brandham 20 June 2007 PrT 53-57, Det Sgt Shervill 4 July 2007 PrT 20-21 180 Physical Evidence Review, A.D. Barclay, p 46 181 Criminal Record, Andrew Mark Mallard, 21 July 1994 182 Comprehensive Summary of Facts p 21 183 Netmail Cottesloe Police to Mark Emmett, 30 May 1994 184 Statement of Anna Fewer, dated 17 May 1994 172 185 Statement of Elaine Shergis, dated 9 June 1994 186 Note to prosecutor Det Sgt Caporn, dated 17 June 1994 187 Handwritten notes of UCO, undated referred to in section 86 submissions on behalf of the UCO 188 Comprehensive Summary of Facts p 30 189 Handwritten notes of UCO undated, and Handwritten notes of M1 undated as in Section 86 submissions of Det Sgt Caporn 190 Notes of Surveillance Operation Huntsman 16-17 June 1994 191 Major Crime Running Sheet p 73 192 Major Crime Running Sheet p 76, p 77 & p 78 193 T688 194 Major Crime Running Sheet p 81 195 T602, T 650-651,T1461-1467, Det Sgt Brandham 19 June 2007 PrT 34-37, Det Sgt Caporn 27 June 2007, PrT 124-126, Det Sgt Shervill, 4 July 2007, PrT 53-60 196 Major Crime Running Sheet p 81 197 T1461 198 T650–651 199 Det Sgt Brandham, 20 June 2007, PrT 67 200 T1461 201 T1462 202 Det Sgt Shervill, 4 July 2007, PrT 54 203 Det Sgt Shervill, 4 July 2007, PrT 54 204 T 1966-1967 205 Det Sgt Brandham 20 June 2007 PrT 37-38, Det Sgt Shervill 4 July 2007 PrT 54 and T1967 206 T 2858, T 2860 207 T1462-1466 208 T652-655 209 Information from Stanley Tools Australia, received 30 October 2007 210 Dr Cooke PrT 9 211 Dr Cooke PrT 9 212 T602 213 Notes of Surveillance Operation Huntsman, Tape 15 June 1994, p 10 214 Report of Bernard Lynch, dated 30 August 1994 215 Amended report of Bernard Lynch, dated 30 August 1994 216 T2142, T2143 217 Deposition of Det Sgt Caporn, p 11-13 218 T671 219 T646, T648, T671 220 T667-670 221 Handwritten statement of K. Barsden, dated 24 May 1994 and sketches 222 Handwritten statement of K. Barsden, dated 24 May 1994 and sketches 173 223 Handwritten statement of K. Barsden, dated 24 may 1994 and sketches 224 Artists Impression, dated 24 May 1994 (Identikit) 225 Typed statement of K. Barsden, dated 1 July 1994 (witnessed by Det Sgt Shervill) 226 Major Crime Running Sheet, p 46 227 Statement of K. Barsden, dated 18 September 1995 228 Statement of K. Barsden, dated 18 September 1995 229 T1705-1711, T1703 230 T1703, T1670, T1671 231 T1670, T1671 232 T1677-1683 233 T1684 234 Handwritten Statement of Michelle Engelhardt, dated 29 May 1994 235 Det Mark Emmett, 21 June 2007, PrT29-30 236 Typed statement of Michelle Engehardt, dated 27 June 1994 237 Michelle Engelhardt, 20 August 2007, PrT12 238 Michelle Engelhardt, 20 August 2007, PrT15 239 Michelle Engelhardt, 20 August 2007, PrT20 240 Michelle Engelhardt, 20 August 2007, PrT24 241 Michelle Engelhardt, 20 August 2007, PrT21-22 242 T1735 243 T1740 244 T1743-1744 245 Mallard v The Queen [2003] WASCA 12 June, p450 246 HOLMES Action 38 247 Handwritten Statement of Katherine Purves, dated 2 June 1994 248 Statement of Katherine Purves, dated 29 June 1994 249 Statement of Katherine Murtagh (nee Purves) dated 29 July 2006 250 Statement of Katherine Murtagh dated 29 July 2006 para 15 251 T1600, T1601 252 TT 276-279 253 Handwritten Statement of Lily Raine, dated 1 June 1994 254 Statement of Lily Raine, dated 2 June 1994 255 Statement of Lily Raine, dated 1 July 1994 256 HOLMES Serial Information Report M258, Action 272 257 Notes by Det Sgt Caporn, Handwritten Statement of Meizak Mouchemore, dated 30 May 1994, T504 258 Statement of Meizak Mouchemore, dated 29 June 1994 259 Photograph of A Mallard prior to release from East Perth 23 May 1994 260 Photograph of A.Mallard following his arrest on 24 May 1994 174 261 Major Crime Running Sheet p 82 262 T1678 263 T1768-T1772 264 Comprehensive Summary of Facts p 6-7 265 TT 16-17 266 TT 112 267 T2417 268 E13152 Major Crime Running Sheet p 91 269 T2415 270 T2417 271 T2417 272 Det Sgt Shervill, 4 July 2007, Pr T87- 88, & Det Sgt Caporn, 28 June 2007, Pr T78 273 E13446 DPP Documents 274 T2423 275 T2424 276 T2426 277 E13152, Major Crime Running Sheet, p 91 278 E13354 Letter to DPP from Sgt Shervill and accompanying Brief of Evidence 279 E13354 Comprehensive Summary p 29 280 R v Paraskeva (1982) 76 Cr App R 162, R v Lewis-Hamilton (1997) 92 A Crim R 532, Archbold: Criminal Pleading Evidence and Practice 1995 ed, at paras 4-265, to 4-273 281 Statement of Prosecution Policy and Guidelines November 1992 282 E14353 Guidelines for Disclosure of Material Additional to the Crown Case, 14 December 1993, & E13301 Police Gazette (No. 9), 9 March 1994 283 Director of Public Prosecutions Act 1991 p 60 284 T2032-3, T2040, T1558 285 E13301 Police Gazette No.9, 9 March 1994 286 T2222, M. Samson, 5 July 2007, Pr T44 287 E15129, Police General Broadcast relating to Disclosure 288 E13447 Allocation of Prosecution of A. Mallard to K. Bates, Senior Prosecutor DPP 289 Allocation of Prosecution of A. Mallard to K. Bates 290 T3387, E15616, Notes of Ken Bates, Trial of A. Mallard 1995 291 T3161-2, 3167-8, 3171-2, 3175, 3177-8, 3182, 3212-3 292 Mr K. Bates 30 July 2007, Pr.T24 293 Mr K. Bates 30 July 2007, PrT28 294 Mr K. Bates 30 July 2007,PrT25-28 295 E13316. Comprehensive Summary of Facts sections 3 (Character of Accused p 20-22) and 5.3 (Psychiatric Findings p 24) 296 Mr K. Bates 30 July 2007, Pr.T35 297 Mr K. Bates 30 July 2007, Pr.T38 175 298 Preliminary Hearing A. Mallard P 4 299 Preliminary Hearing A. Mallard P 5 300 Preliminary Hearing A. Mallard P12 301 Preliminary Hearing A. Mallard P 128, Exhibit K 302 T3219 303 E11769, Committal Cover Sheet 304 Voire Dire A. Mallard, [3 October 1995] 305 T2959 306 Voire Dire A. Mallard VDT-196 307 T2977 308 E13561, Statement of A. de Florenca 309 E15396, Statement of L. H. Peirce 310 T2685-2686 311 T2381-2382 312 Trial of A. Mallard [2 November 1995] 313 TT8 314 TT9 315 TT11 316 TT16-17 317 TT17-18 318 TT128-129 319 TT135-136 320 TT136 321 TT137 322 TT138 323 TT139 324 TT151 325 TT849 326 TT850 327 T662-3 328 Trial of A. Mallard, Closing Address TT19 329 Trial of A. Mallard, Closing Address TT20-22 330 Trial of A. Mallard, Closing Address TT23 331 Mallard v The Queen [2003] WASCA 296, TT25 332 Mallard v The Queen [2005] HCA 68, 224clr 125 at [23] 333 TT148 334 TT149-151 335 T602 336 T612 176 337 E7030 Affidavit of Dr Cooke 338 CCC26549, Affidavit of Dr Cooke, Clemency Appeal 2002. dated 17/01/2003, Paragraphs 30-35 339 Final Submissions, K. Bates, P17 340 T637 341 T638 342 T3304-3305 343 T3252 344 T2186-2188, T2141 345 E15627, Notes of K. Bates produced to the Commission 346 T3302-3303 347 T3329-31 348 T3421 349 T3330 350 T3207-3254 351 T3241 352 Det Sgt Shervill 4 July 2007, Pr T 54 353 Det Sgt Caporn 27 June 2007, Pr T123 354 Det Sgt Brandham 20 June 2007, Pr T37-38 355 Written Submissions and Section 86 Submissions on behalf of K. Bates 356 TT11 and Trial of A. Mallard, Closing Address TT20-22 357 Comprehensive Summary of Facts p 25-26 358 E13316 Comprehensive Summary of Facts 359 T3363 360 TT186 361 Trial of A. Mallard, Closing Address TT22 362 TT422-431 363 Trial of A. Mallard, Comments of Trial Judge TT1131 364 Mallard v The Queen CCA 204 [1995] 365 T 3029 366 T 3026-3027 367 John Quigley , 4 September 2007, Pr T10 368 Memorandum Ken Bates to Robert Cock QC, dated 4 July 2002 p.33, (E7306) 369 Sentencing Act 1995, section 140 370 Mallard v The Queen [2002] WASCA 296 371 Gummow, Hayne, Callinan and Heydon JJ in a joint judgement, and Kirby in a separate judgement concurring 372 Mallard v The Queen [2005] HCA 68, 224 CLR 125 373 Mallard v The Queen [2005] HCA 68, 224 CLR, at [43] 374 Mallard v The Queen [2005] HCA 68, 224 CLR, at [58] 177 375 The provisions have now been enacted as part of the Criminal Investigation Act 2006 376 Supreme Court Transcript 2 February 2006, P1202 377 T2902-2904, E-mail Mr Cock to Ms Sweeney dated 20 February 2006 (E1309) 378 T2905 379 T244 - 260 380 Information provided by Acting Inspector Christopher Hoath in report to the Commission, T2502- 2511 381 The West Australian, 12 May 2006 382 Police Interview with S. Rochford, 11 May 2006 conducted by Det Sgt Saunders 383 Affidavit and reports of Dr Cooke, Enquiries conducted with Stanley Tools Australia regarding Sidchrome tools 384 Private Hearings 9 November 2006 and 11 November 2006 385 K. Sandford, 9 November 2006, Pr.T23 386 K. Sandford, 9 November 2006, Pr. T27

387 C. Sandford, 11 November 2006 Pr.T6

388 S. Short, 26 June 2007, Pr. T2

389 S. Short, 26 June 2007, Pr. T42

390 R v Mallard [1995], Voire Dire 4 October 1995 P 142-154, T1792-1869

391 Det Sgt Shervill, 4 July 2007 Pr.T54, and T2172, Det Sgt Brandham, 20 June 2007 Pr.T34-38 and T1399, Det Sgt Caporn 27 June 2007, PrT126

392 Det Carter, 19 June 2007, Pr. T70-71, Det Emmett, 21 June 2007, Pr. T63, Det Sgt Caporn, 28 June 2007, Pr. T38-39

393 Police Records of Surveillance Operation Huntsman (E12358)

394 DPP Statement of Prosecution Policy and Guidelines 2005, paragraph 111,

395 WAPol Code of Conduct, gazetted 16 April 2008 396 T2920-2983

397 TT 229 398 Det Sgt Shervill 3 July 2007, Pr. T35-38, T1555-1558

399 CCC Act S27A and 27B

400 CCC Act S27(1)

401 CCC Act S27(4)

402 CCC Act S27B(1)

403 CCC Act S27B(2)

404 CCC Act S27B(3)

405 CCC Act S27B(4)

406 T2998

407 T3039-3043

408 WAPol Running Sheet

409 T3037,

410 E15028, 18 June 2002 Telephone message from John Quigley 178

411 E15689, 20 June 2002 Telephone message from John Quigley

412 E15690, 20 June 2002 Telephone message from John Quigley

413 E14978, 20 June 2002 Telephone message from John Quigley

414 E15701, 20 June 2002 Telephone message from John Quigley

415 E15705, 23 June 2002 Telephone message from John Quigley

416 T3081

417 6PR Radio Interview with John Quigley (E16064)

418 John Quigley, 4 September 2007, Pr.T63

419 Investigation Report, 6 January 2003, Advice sought from DPP by A-CC (CCC27401)

420 Correspondence DPP to the Commission, 29 May 2006 (CCC 29995)

421 Tracey v R[1999] WASCA77, 20 WAR 555, 106 A Crim R 475

422 Tracey V R [1999} At [16]

423 Wood v Bowron At [11]

424 Wood v Bowron [1866] LR 2QB 21 at 30

425 T 3026

426 Gangemi & Anor v The Western Australia Farmers Federation Inc [2002] WASC 229

  Andrew Mallard: 'Why I'm going to sue'

                                          Chris Thomson and Tim Clarke

                                                             http://www.watoday.com.au/wa-news/mallard-why-im-going-to-sue-20081118-69pp.html

                                                        NOVEMBER 18 2008

                                                                                  

                                                                         Andrew Mallard with his sister Jacqui and mother Grace. 

Andrew Mallard says his proposed writ against police and prosecutors for their alleged role in his wrongful conviction for the murder of Pamela Lawrence has nothing to do with vengeance.

"I am not about vengeance, I'm about seeking proper compensation," Mr Mallard told WAtoday.com.au.

"I'm concerned that the justice system is seen to be effective and working for all citizens and that these police and prosecutors are not above the law."

The writ applied for by Mr Mallard claims damages against 13 defendants - including assistant police commissioners Mal Shervill and David Caporn, Director of Public Prosecutions Robert Cock and his deputy Ken Bates.

Mr Mallard had until last Friday, November 15, to apply for the writ, and now has a year from that date to serve it.

A Corruption and Crime Commission report tabled in the WA parliament last month made opinions of misconduct against Mr Shervill and Mr Caporn.

Mr Bates, who prosecuted Mr Mallard in the 1995 murder trial, also had a misconduct finding levelled against him.

"What is happening is a matter of due course," Mr Mallard said today.

"Look at the collateral damage that they've caused.

"It is not just to me, it is my family, and the Lawrence family that have been harmed."

Mr Mallard revealed he was now briefing his lawyers to prepare a further case to be presented to Mr Cock alleging that those accused of misconduct by the CCC had perverted the course of justice.

Law suit 'outrageous'

I do have a figure in mind, but that's a matter between me and the Attorney General.

Former CCC prosecutor Patti Chong, who had three children with Mr Bates during their marriage, today said the writ would hurt her family.

"It is distressing to my family and I that this saga continues," Ms Chong said.

"Everyone who knows Ken knows that he is a prosecutor with the utmost integrity and that he prosecuted each and every case with the highest ethical principles.

"He is widely respected in the profession and the justice system as one of the fairest prosecutors this state has ever produced."

Ms Chong said the CCC findings of misconduct were not supported by evidence.

"If Ken made any mistakes, they were human oversight and were not deliberate, malicious or intentional," she said.

"The proceedings against Ken are outrageous and preposterous.

"I hope that justice and common sense will ultimately prevail."

Police Union boss Mike Dean told WAtoday.com.au that Mr Mallard's writ was not unexpected, but could hurt Shervill and Caporn.

"Essentially, their houses are on the line," Mr Dean said.

"I think they've been through that many years of stress, that this is just another part of the process."

But Mr Mallard said he was more concerned about achieving justice for himself and his family, and helping to repair the WA justice system, than the impact the writ might have on the police and prosecutors.

"Get real, Mr Dean," he said. "How this pans out is entirely up to the police and the Attorney General."

Compensation claim

Mr Mallard refused to confirm the amount of compensation he was seeking from Attorney General Christian Porter. But in the wake of the CCC findings, his lawyer John Quigley said he would seek $10 million for his client.

"I expect things to start quickly, soon, but at this stage I'm still waiting for an approach to be made," Mr Mallard said.

"I do have a figure in mind, but that's a matter between me and the Attorney General."

Mr Mallard said delays to the compensation payment denied him a fair go.

"They took 12 years out of my life and they're now taking their time about the compensation," he said.

"It's mean-spirited, it's unfair, it's un-Australian.

"They have to consider the reputation, not just of the police, but how the Government is seen to handle cases like this."

Attorney General Porter told ABC Radio today that he expected a report on the compensation from the Crown Solicitors office to be completed soon.

"That opinion goes to the composite role of the state of WA in the wrongful imprisonment of Andrew Mallard," Mr Porter said.

"It is not the simplest of issues."

Mr Porter said he would be keen to settle the matter "very quickly" after receiving the report.

Mr Mallard's lawyer, State MP John Quigley, today told the Radio 6PR Morning Program that $10 million was the ballpark compensation figure he was seeking.

"The authorities can cease the action at any time by stepping in offering Andrew adequate compensation - but if it is not adequate then it is full steam ahead," Mr Quigley said.

"I think Cornelia Rau ... who was wrongfully held received about $2 million for 15 months.

"I don't want to say whether it is more than $10 million … but that is the figure I have put on it having regard to Cornelia Rau. When you add it all up it might be more."

"You have got to remember ... he lost the opportunity to marry, start a family, missed out on earning income, missed out on the housing market, missed out on the job market - he was shipwrecked.

Disclaimer: Patti Chong writes a blog on WAtoday.

 

Mallard accepts $3.25 million but will fight on

http://www.watoday.com.au/wa-news/mallard-accepts-325-million-but-will-fight-on-20090525-bki9.html

                                  MAY 25 2009

 Andrew Mallard walks out of the Western Australian parliament

Andrew Mallard, who spent 12 years in jail for his wrongful conviction on a murder charge, has accepted a $3.25 million ex-gratia compensation payment from the State Government.

He has lodged a Supreme Court writ against 17 defendants, including seven police officers and the Director of Public Prosecutions.

Mr Mallard had pleaded with the State Government to double the payment after the "take it or leave it" offer was made earlier this month.

The 48-year-old served 12 years of a 20-year sentence for the 1994 murder of Perth jeweller Pamela Lawrence, before his conviction was quashed by the High Court in 2005.

Mr Mallard had sought $7.25 million in compensation before the Government announced its $3.25 million payment, which it described as a "gift".

At a media conference on May 7, three days after the offer was announced, an emotional Mr Mallard held a press conference urging the Government to rethink the amount.

He said he did not want to reopen the wounds from the years he spent in jail by fighting for appropriate compensation in a court action.

Deputy Premier Kim Hames confirmed today that Mr Mallard had accepted the offer.

He said refusing it "wouldn't have changed any future option that he had".

But Mr Mallard said that in accepting the payment, he had been told the "gift" would be deducted from any future award of damages in the WA Supreme Court.

"It is an inadequate figure but I also need to do this for vindication," Mr Mallard said.

"I am still appalled and shocked at the avoiding of any accountability from the government's part and also from police.

"I have no choice but to accept this money - it is either go down the gurgler or accept what little I have and fight on."

Dr Hames said the compensation had been provided "without any strings attached".

"We provided that as a gift and it was always left open for him to decide whether he would pursue legal action," Dr Hames said.

"If he does that it will be his choice. It was going to be in effect a cheque in the mail.

"So if you got a cheque in the mail for just over $3 million I'm sure you wouldn't say no, particularly when there weren't any conditions to (accepting) that amount of money."

Asked if he personally believed it was the right decision, Dr Hames replied: "I think he's made the right decision in not rejecting that money.

"I guess he could have always not cashed the cheque but that wouldn't have changed any future option that he had."

AAP

 

CCC recommends police, prosecutor be disciplined over Mallard affair

Chris Thomson

 

http://www.watoday.com.au/wa-news/ccc-recommends-police-prosecutor-be-disciplined-over-mallard-affair-20081007-4vhs.html

OCTOBER 7 2008

The Corruption and Crime Commission has recommended that disciplinary action be considered against two assistant police commissioners and the Deputy Director of Public Prosecutions as a result of the investigation and prosecution of Andrew Mallard.

The recommendations follow a series of hearings last year, brought on by the wrongful conviction of Mr Mallard for the murder of Mosman Park jeweller Pamela Lawrence in 1994. The conviction was quashed in 2006.

CCC Acting Commissioner John Dunford QC found four counts of misconduct against Assistant Commissioner Mal Shervill, who led the murder investigation, and two misconduct opinions against Assistant Commissioner David Caporn, who also worked on the case.

Mr Dunford also published two opinions of misconduct against Deputy Director of Public Prosecutions Ken Bates, who prosecuted Mr Mallard in his 1995 trial.

Mr Dunford also investigated a complaint by police that high-profile Labor MLA John Quigley, who acted for Mr Mallard, threatened to disclose the identity of an undercover officer unless he cooperated with those working for a review of the conviction. The CCC was not satisfied Mr Quigley engaged in serious misconduct.

Mr Mallard spent almost 12 years in jail for the murder of Ms Lawrence in her Mosman Park jewellery store in 1994.

He twice unsuccessfully appealed against his conviction before it was overturned by the High Court in 2006, after which the DPP decided not to proceed with a retrial.

Public hearings into the matter were held before Mr Dunford, a retired New South Wales judge, over four months last year.

The report, tabled in WA Parliament today, outlined misconduct opinions against Assistant Commissioner Shervill for:
• causing witnesses to alter their statements without any reference in their final statements to their earlier recollections;
• making false entries in police records relating to such alterations;
• requesting a chemist to delete all reference to salt water testing on Mr Mallard's clothing in a report provided to the defence; and
• failing to disclose to the defence original statements of witnesses, including forensic testing reports and details of unsuccessful attempts to find a weapon capable of inflicting wounds similar to those found on Mrs Lawrence.

Misconduct options were levelled against Assistant Commissioner Caporn for:
• writing a letter to the police prosecutor in 1994 that contained incorrect and misleading information about Mr Mallard; and
• causing witnesses to alter their statements without any reference in their final statements to their earlier recollections.

The report recommended disciplinary action be considered for Mr Bates for:
• conducting the trial on the basis that a wrench, as drawn by Mr Mallard, was the murder weapon, but making no attempt to prove the deceased's injuries were caused by a wrench; and
• failing to disclose to Mr Mallard's lawyer forensic test results relating to a wrench, nor ensuring such results were disclosed by the police.

The report also made recommendations concerning police interviewing mentally ill suspects, police training, and documentation of advice received from the office of the DPP.

A police cold case review of the investigation in 2006 concluded that the person most likely to have killed Ms Lawrence was Simon Rochford.

Rochford was serving a sentence for the 1994 murder of his girlfriend, Brigitta Dickens, who was killed about seven weeks after Mrs Lawrence died.

Rochford was found dead in his cell at Albany Prison on May 19, 2006, having apparently committed suicide after being named in the media as a new suspect in the Lawrence murder.

http://www.watoday.com.au/wa-news/mallard-sentenced-to-life-without-love-20081018-53le.html

OCTOBER 20 2008

Mallard sentenced to life without love

Chris Thomson

Andrew Mallard says his wrongful conviction for the murder of Pamela Lawrence demolished his dream of having children with a woman.

"Because of past events, I find having relationships difficult," Mr Mallard said in a moving interview with WAtoday.

"When I meet someone, it is all fine and good but when the conversation drifts to past events I am very truthful and the result can be quite traumatic."

Mr Mallard revealed details of the breakdown of his first serious relationship since he was released from a wrongful 12-year jail term in 2006.

"I did meet somebody and we were quite taken with each other, but she did her own background research," Mr Mallard said.

"Certain members of her family and friends disapproved, and she came under pressure from her peers and couldn't take it.

"We are still very good friends but it stopped any relationship progressing."

The relationship lasted six months until his partner broke it off in January this year.

"I was heartbroken," Mr Mallard said.

"All my family and friends met this person. It was a proper, good relationship going on."

After the breakup, Mr Mallard moved to the relative anonymity of Melbourne to complete a fine arts degree he had started in Perth.

"I am completing it here, because being in Perth was totally disruptive," he said.

Despite describing himself as a gregarious person, Mr Mallard now has no partner.

"I am a social animal, there's no problem about that," he said.

"I have got lots of close friends both here and in Perth.

"When I meet somebody, I try to explain the situation but when they delve into my background and read erroneous reports, they become frightened."

On October 7, WA Corruption and Crime Commission acting commissioner John Dunford QC found two senior police officers had fabricated evidence in the investigation that led to Mr Mallard's conviction.

Mr Mallard described as "irresponsible" comments from WA Police Commissioner Karl O'Callaghan that the findings were "just one man's opinion''.

"He's feeding people who are ignorant and don't want to believe police will set people up," Mr Mallard said.

"It really does make things extremely difficult because I have this event still hovering over my head.

"It is very disheartening and very upsetting, and it is impacting on me trying to move on from it all."

Mr Mallard was optimistic he would again enter a loving relationship.

"I am still hopeful of meeting somebody, but it's not likely to be in Australia, or it could be somebody who's visiting, because Melbourne's a cosmopolitan place," he said.

Mr Mallard said he recently met a Romanian woman but she was 44 and could not have children, which was a goal of his.

"Not only did (the authorities) take my freedom for 12 years, but it has put me in an age where I am now limited in my ability to meet a woman of a certain age who can bear children," he said.

Despite this, Mr Mallard says he still has a lot to offer the right woman.

"My strength comes from the truth that I know I am a good man," he said.

"I live my life in the most honest, best way that I know."

 

 

http://www.watoday.com.au/wa-news/retired-judge-spotlights-mallard-20090317-90wl.html

MARCH 18 2009

                     Retired judge spotlights Mallard

                                                                                 Chris Thomson

At his honorary doctorate ceremony last night, retired High Court judge Michael Kirby paid tribute to the free lawyers who freed Andrew Mallard from a wrongful murder rap.

Mr Kirby was at the Perth Convention Centre, receiving an Honorary Doctor of Laws degree at a Murdoch University ceremony in front of several hundred graduating students. 

Retired High Court judge Michael Kirby. 

He celebrates his 70th birthday today.

In his speech, Mr Kirby said Mr Mallard's freeing from a wrongful 12-year imprisonment over the murder of jeweller Pamela Lawrence in 1995 was a prime example of what independent lawyers and pro bono work could achieve.

The miscarriage in the conviction of Andrew Mallard was ultimately repaired by excellent lawyering that demonstrated that a miscarriage of justice had occurred," Mr Kirby said.

"Lawyers working on the Mallard case did it pro bono.

"The lawyers were not in it for big money - they were in it because they believed in justice under law."

Mr Mallard is awaiting the results of a $10 million compensation claimthat one of his pro bono lawyers, State MP John Quigley, has said Mr Mallard lodged with the WA Government in October.

http://www.watoday.com.au/wa-news/mallard-broke-and-almost-beaten-20090507-awg3.html

                                                               MAY 7 2009

                     Andrew Mallard: broke and almost beaten

                                   

                        'Not enough'... Andrew Mallard exits WA's Parliament House. 

                                                              by Chris Thomson

Andrew Mallard, the man who spent 12 years imprisoned on a wrongful murder charge, today admitted he has spent a $200,000 ex gratia payment handed to him by the WA Government in December 2006.

"That was nearly three years ago, now," Mr Mallard told WAtoday.com.au.

"I have a very, very small amount (left) - 300 (dollars)."

Mr Mallard, who became a Fine Arts student at Curtin University after his 2006 release from Perth's Casuarina Prison, said that he was now solely reliant on Austudy to get by.

In a sometimes tearful interview outside Parliament House, Mr Mallard said he had contravened the advice of his legal team to implore West Australians to "open their hearts and minds to listen to what I have to say".

Mr Mallard raised the spectre of court action to broker a payout greater than the $3.25 million he was offered on Tuesday by WA Attorney General Christian Porter.

He said he was "extremely disappointed" that he may have to "live my nightmare again in court".

Mr Mallard revealed that at a meeting with Mr Porter on January 6 his lawyers had requested $7.25 million compensation for his wrongful imprisonment.

"My father died a broke man because of this," Mr Mallard said, choking back tears.

"I was in prison and couldn't see him."

He said his 82-year-old mother might not live through another legal battle which could last five years.

"I am a victim of crime," he added.

I have a very, very small amount (left) - 300 (dollars).

"I will be 48 years old soon.

"My life is ebbing away."

Long-time supporter John Quigley said an "independent assessor" should be appointed to mediate a suitable payment for Mr Mallard.

Premier Colin Barnett earlier said the government's offer would not be reconsidered and that the "gift" was a fair and proper arrangement.

"It is up to Mr Mallard whether he wishes to seek further damages against the state or its agents, be it police or the director of public prosecution," Mr Barnett said.

"It will allow him to have quality accommodation for the rest of his life, buy a house wherever he wants and if it's well invested he will have a high income by most people's standards for the rest of his living days.

"That doesn't make up for 12 years in jail but it is a fair and reasonable position for the state to make."

In November 2008, Mr Mallard lodged a Supreme Court writ claiming damages against 13 police and crown prosecutors involved in his conviction. He has until November 15 to serve the writ.

Mr Mallard was wrongfully convicted in 1995 of murdering Pamela Lawrence at her Mosman Park jewellery shop on May 23, 1994. 

His conviction was quashed by the High Court of Australia. It was later revealed that during the original trial police had withheld vital information from Mr Mallard's defence team.

- with AAP

 

Quigley cleared of serious Mallard misconduct

Chris Thomson

http://www.watoday.com.au/wa-news/quigley-cleared-of-serious-mallard-misconduct-20081007-4vld.html

OCTOBER 7, 2008
                                                              Andrew Mallard's Lawyer John Quigley

Andrew Mallard's lawyer John Quigley has been cleared of serious misconduct over his handling of the case by the Corruption and Crime Commission.

The allegation was raised following a police complaint that the high profile Labor MLA threatened to reveal the identity of an undercover officer unless he cooperated with those who pushed for a review of the conviction.

Mr Quigley said he was not surprised at Acting Corruption and Crime Commissioner John Dunford's finding today.

"I knew as an experienced lawyer just how far I could go without actually breaking the law," Mr Quigley said.

"So I was not surprised that the CCC had totally vindicated me and acknowledged my efforts."

Acting Commissioner Dunford's finding on Mr Quigley was part of a broader probe into alleged police and Crown prosecutor misconduct over the wrongful conviction of Mr Mallard for the 1995 murder of Mosman Park jeweller Pamela Lawrence.

Mr Dunford said he was not satisfied Mr Quigley had engaged in serious misconduct.

The last paragraph of Mr Dunford's report paid tribute to Mr Quigley and other people who believed in Mr Mallard's innocence.

"Without their respective efforts and expertise, Andrew Mallard would still be in prison, convicted of a wilful murder he did not commit," the report's last line read.

Mr Quigley said his actions were aimed at "piercing the wall of the police conspiracy of silence" on the Mallard case.

At a media conference after speaking to WAtoday.com.au, Mr Quigley said Mr Mallard would pursue a $10 million compensation payout from the WA Government.