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 That was until mid-morning on Monday, when he telephoned McCusker to inform him the murder charge would be withdrawn because there was insufficient evidence to proceed.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."
"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)