IWasFramedForMurderbyDavidJohnCapornAnsKennethBatesSaysAndrewMallard

The extraordinary case of Andrew Mallard

Andrew Mallard is a Western Australian who was wrongfully convicted of murder in 1995 and sentenced to life imprisonment. He was released from prison in 2006 after his conviction was quashed by the High Court of Australia.

https://lawonlineau.wordpress.com/2011/12/02/the-extraordinary-case-of-andrew-mallard/

Mallard v R [2005] HCA 68; (2005) 224 CLR 125; (2005) 222 ALR 236; (2005) 80 ALJR 160 (15 November 2005)

17 November 2005

http://www.austlii.edu.au/au/cases/cth/HCA/2005/68.html

HIGH COURT OF AUSTRALIA
GUMMOW, KIRBY, HAYNE, CALLINAN AND HEYDON JJ

ANDREW MARK MALLARD APPELLANT

AND

THE QUEEN RESPONDENT

Mallard v The Queen [2005] HCA 68
15 November 2005

 

"I was innocent and framed by former Red Lodge Freemason Western Australian Assistant Police Commissioner, David John Caporn and former Red Lodge Freemason Western Australian Senior DPP Prosecutor Kenneth Bates and others for the murder of Pamela Lawrence...."....Andrew Mallard

"I am determined that former WA Police Assistant Police Commissioner, David John Caporn, former senior DPP prosecutor, Kenneth Bates and others are eventually charged and prosecuted for a conspiracy to pervert the course of justice for framing me....".... Andrew Mallard

Australian Cases: Mallard (Andrew) v The Queen High Court December 2005

Mallard v The Queen [2005] HCA 68; (2005) 224 CLR 125; (2005) 222 ALR 236; (2005) 80 ALJR 160

15 November 2005 - High Court of Australia

http://netk.net.au/australia/Mallard.asp

 

 

Andrew Mallard's case: A timeline

1994: Perth jeweller Pamela Lawrence is brutally killed with a heavy instrument in her own store. The murder weapon has never been found

1995: Andrew Mallard is wrongly convicted of her murder

1996: Mallard's appeal to the Supreme Court of Western Australia is dismissed by Justices Kevin Park, Christine Wheeler and Justice Smith.

The books The Triumph of Truth (Who Is Watching The Watchers?) and other public information, as also show in the Film "The Law Lord".... "When It Is Important to Protect the Legal System of being exposed for corruption and wrongful activities, the carefully appointed Court Listings Manager is told to select Judges of Justices that the System knows will rule a certain way.... Justice Kevin Parker is well known and well exposed as a corrupted former Solicitor General of Western Australia, a former corrupted head of the Barristers Complaints Board, and a former Corrupted Supreme Court Justice ..... and Christine Wheeler was his personal assistant for years when Kevin Parker was the Solicitors General for Western Australia. and it was only a matter of the listing coordinator selecting a third Justice for Andrew Mallard's Supreme Court Appeal, who the System knew would Rule against Andrew Mallard winning his Full Supreme Court Appeal..

So John Quigley, the now Attorney General Of Western Australia was right when he said to Andrew Mallard..

"In Western Australia we have tired old judges who hardly have enough energy to pick up their pen to write the sentence of Life Imprisonment ... tried old judges who are too tired and lazy to properly scrutinize what the corrupt police and corrupt prosecution are about ... Andrew, you will only be released from prison and have your wrongful murder conviction quashed, if we can get your case to the High Court of Australia... because no judge in Western Australia will every have the balls to overturn your wrongful murder conviction, because to do so, would identify the whole of the Western Australian legal, police prosecution, court, and justice system as being inherently corrupt ... no judge in Western Australia will have the balls to do that .... Because Perth is too anal....  and the corrupted tentacles of the Western Australian legal, police prosecution, court, and justice system just wrap around your neck, and as you tear one of the corrupt tentacles of the Western Australian legal, police prosecution, court, and justice system off your neck, another corrupt tentacle just slithers around you .. one has no chance in fighting the corrupted Western Australian legal, police prosecution, court, and justice system, from within Western Australia ... to win against them and obtain any sort of justice, one has to go to the High Court of Australia,..".... WA Attorney General John Quigley

2003: After spending eight years of his sentence of life imprisonment in strict security, he petitioned for clemency

The Attorney-General for Western Australia referred the petition to the Court of Criminal Appeal, which later dismissed the appeal

2005: Mallard's appeal is heard in the High Court, his conviction is quashed

2006: After 12 years behind bars, Mallard is free

A cold case review is held and uncovers a partial palm print linking British backpacker and convicted murder Simon Rochford to the crime scene

A week after Rochford is questioned by police, he is found dead in his prison cell from suspected suicide

2007: A Corruption and Crime Commission investigation into the case leads to two assistant police commissioners, Mal Shervill and David Caporn, being forced to step down

2009:  Mallard is granted a $3.25 million ex gratia payment for his time behind bars

2019: Mallard is killed in a tragic hit and run in Los Angeles 

WA Attorney-General John Quigley (pictured) remembered Mr Mallard as a gentle person

Andrew Mallard standing in front of one of his artworks in 2009. Credit- Lee Griffith

Andrew Mallard standing in front of one of his artworks in 2009. Credit- Lee Griffith

 I was framed for murder, says Mallard
27 Sep 2010
https://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.

AndrewMallardEndured12yearsIn JailForAMurderHeDidNotCommitAasTragicallyKilledOnHollywoodsIconicSunsetBoulevard

Andrew Mallard Endured 12years In Jail For A Murder He Did Not Commit Is Tragically Killed by USA Los Angeles Basketballer  Kristopher Smith On Hollywood's Iconic Sunset Boulevard In A  Car Hit And Run

 

Statement about the corrupt WA police, prosecution judicial and legal system on a documentary by E M Smith and WA Attorney General John Quigley

JohnQuigley-left-andAndrewMallard

John Quigley (left) and Andrew Mallard

 
"The Andrew Mallard Care is one of the greatest indictments of the Western Australian legal, police prosecution, court, and justice system .. it is not just the corruption in the police and the prosecution, it is also the judges themselves that are obviously corrupted and will go out of their way to protect a corrupt legal system....." .... E M Smith maked of thee Andrew Mallard Documentary 
 
"In Western Australia we have tired old judges who hardly have enough energy to pick up their pen to write the sentence of Life Imprisonment ... tried old judges who are too tired and lazy to properly scrutinize what the corrupt police and corrupt prosecution are about ... Andrew, you will only be released from prison and have your wrongful murder conviction quashed, if we can get your case to the High Court of Australia... because no judge in Western Australia will every have the balls to overturn your wrongful murder conviction, because to do so, would identify the whole of the Western Australian legal, police prosecution, court, and justice system as being inherently corrupt ... no judge in Western Australia will have the balls to do that .... Because Perth is too anal....  and the corrupted tentacles of the Western Australian legal, police prosecution, court, and justice system just wrap around your neck, and as you tear one of the corrupt tentacles of the Western Australian legal, police prosecution, court, and justice system off your neck, another corrupt tentacle just slithers around you .. one has no chance in is fighting the corrupted Western Australian legal, police prosecution, court, and justice system, from within Western Australia ..... Andrew  to win against them and achieve any sort of justice, one has to go to the High Court of Australia ..".... WA Attorney General John Quigley

Andrew Mallard dead at 56 after hit-and-run in Los Angeles

Gabrielle Knowles and Rhianna MitchellThe West Australian
Fri, 19 April 2019

EXCLUSIVE: Andrew Mallard, who spent 12 years in a WA jail after being wrongfully convicted of murder, has been killed in a hit-and-run crash in Los Angeles.

He had been living in the United Kingdom but regularly visited friends in the United States.

It is believed Mr Mallard was walking across a street in Hollywood about 1.30am local time Thursday when he was struck by a car.

The driver did not stop to help and despite efforts by a bystander to provide CPR until emergency services arrived Mr Mallard died at the scene, officers in LA say.

The 56-year-old was exonerated by the High Court in 2006 of wilfully murdering Mosman Park jeweller Pamela Lawrence in 1994.

He later received a $3.25 million settlement from the State Government.

Attorney-General John Quigley, who led the fight to clear Mr Mallard’s name, said today he was terribly saddened by the tragedy.

“It’s just fortunate that he got to spend 13 years of freedom after so much time wrongfully imprisoned,” he said.

Mr Mallard’s family are being assisted by the Australian consulate in the US.

On Friday afternoon, WA Police released a statement extending their condolences to Mr Mallard’s family.

“WA Police have been advised of the death of Mr Andrew Mallard in Los Angeles,” the spokesperson said.

“We have notified Mr Mallard’s family in Western Australia and we extend our condolences to them at this difficult time.”

Andrew Mallard. Credit-Steve Ferrier

 

Andrew Mallard Australian Man Wrongly Spent 12 Years Behind Bars For Murder then Killed by Los Angeles Basketballer, Kristopher Smith In Hollywood in A Hit And-Run Car Murder

US man , Los Angeles Basketballer  Kristopher Smith IS Accused Of A Fatal Hit-Run Of Australian Andrew Mallard Faces Court On A Plea Deal

Los Angeles Basketballer Will Avoid A Long Prison Sentence After Pleading Guilty To The Fatal Hollywood Hit-and-run Death Of Australian Andrew Mallard

KristopherSmithPleadedGuiltyToTheFtalHit-run-DeathOfAndrewMallard5

Los Angeles Basketballer, Kristopher Smith Pleaded Guilty To The Fatal Hit-run-Death Of Andrew Mallard

KristopherSmithWillServeOnly40 days OfWeekend DetentionAndDoCommunityService5

Kristopher Smith pleaded guilty to the fatal hit-run death of Andrew Mallard.
 
Tweet
Charles Croucher @ ccroucher9
Kristopher Smith- the American man that hit and killed Australian Andrew Mallard- today pleaded guilty to hit and run and manslaughter. Smith weill be sentenced in March to 30 days in prison. Mr Mallard served 12 years in jail in Aus for a crime he was later cleared of @9NewsAUS 8.24 PM Feb27. 2020- TweetDeck 
 
 
A young Los Angeles basketballer will avoid a long prison sentence after pleading guilty to the fatal Hollywood hit-and-run death of Australian Andrew Mallard.
 
A young Los Angeles basketballer will avoid a long prison sentence after pleading guilty to the fatal Hollywood hit-and-run death of Australian Andrew Mallard.
Kristopher Smith, 20, was facing a four-year prison term in the tragic case, but struck a plea deal with prosecutors.
Smith, during an appearance in a downtown LA courtroom on Thursday, agreed to serve 30 days of weekend detention at LA County Jail, 30 hours of community service and three years' probation.
Smith will also pay yet-to-be determined restitution to Mr Mallard's Perth-based family.
"Yes, your honour," Smith quietly replied when Judge James Dabney asked if he understood what he was agreeing to.
 
Mr Mallard's death was the final cruel twist in a tragic life for the 56-year-old from Perth.
Mr Mallard was wrongly imprisoned for 12 years in Australia for the 1994 death of Perth jeweller Pamela Lawrence.
Andrew Mallard's conviction was quashed by the High Court in 2005, he received a $A3.25 million ex gratia payment and had been trying to move on with his life when he was struck by Smith's vehicle and left to die while crossing Sunset Blvd in Hollywood about 1.30am on April 18 last year.
Smith, who played basketball for Inglewood High School and East LA College, surrendered to the LAPD five days later.
 
CrimeSceneOnHollywoodsSunsetBoulevardWhereKisropherSmthMurderedAndrewMallard-9News5
A photograph of the crime scene on Hollywood's Sunset Boulevar

 

Andrew Mallard was wrongfully imprisoned for the murder of Perth woman Pamela Lawrence-Australian Story

Andrew Mallard - Jailed for 12 years: Andrew Mallard's wrongful murder conviction - Australian Story

Andrew Mallard Documentary Part 2

"When I was 19 I became friends with a man named Andrew Mallard, who had just spent the past 12 years in prison. As I slowly unraveled the shocking elements of his story, I felt compelled to make this short documentary. Though in truth, there is so much that I left out due to the magnitude of the case and of the vast twists and turns that I discovered. It contains just a fraction of the full tangled -web of murders and conspiracies that I discovered whilst making it. In the future I hope to tell the full story - and to tell it better than I did... "... E.M. Smith

 

TheircumstancesOfAndrewMallardsCase

"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."

 Ken Bates stood down last month with a lucrative payout-AfterHelpingToFRameAndrewMallard

This is not the first or last time 

DavidJohnCaporn_FormerWAAssistantPoliceCommissionerWhoHelpedDPPProsecurorFrameAndrewMallard

David John Caporn Red Lodge Freemason and the Former Western Australian Assistant Police Commissioner Who Helped DPP Prosecutor Frame Andrew Mallard for a Murder Andrew Did Not Commit. 

As a a reward for helping to frame Andrew Mallard, David John Caporn Red Lodge Freemason and the Former Western Australian Assistant Police Commissioner, was given a new $100,000 a year job as the head the the WA Fire Service, a couple of days after he was forced to resign from the WA Police Force to stop a WA Police Force Internal Inquiry into his involvement is helped to frame Andrew Mallard for the murder of Pamela Lawrence.

This was not the first or last time David John Caporn the Former Western Australian Assistant Helped Try And  Frame innocent people of crimes they did not commit, and help guilty Freemason Brothers not be charged for crime they did commit.

David John Caporn Red Lodge Freemason and the Former Western Australian Assistant Police Commissioner  tried for year to frame a public servant and the mayor of Claremont for the Claremont Serial Killings.

David John Caporn Red Lodge Freemason and the Former Western Australian Assistant Police Commissioner  helped well known Western Australian Footballer ,Barry Cable have sexual assault allegations dropped.

INL News Investigations indicate that David John Caporn Red Lodge Freemason and the Former Western Australian Assistant Police Commissioner  and 

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

https://www.ccc.wa.gov.au/sites/default/files/Report%20on%20the%20inquiry%20into%20alleged%20misconduct%20by%20public%20officers%20in%20connection%20with%20the%20investigation%20of%20the%20murder%20of%20Mrs%20Pamela%20Lawrence%2C%20the%20prosecution%20and%20appeals%20of%20Mr%20Andrew%20Mallard%2C%20and%20other%20related%20matters_0.pdf

7 October 2008 

CORRUPTION AND CRIME COMMISSION

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 This email address is being protected from spambots. You need JavaScript enabled to view it. Office Hours 8.30 a.m. to 5.00 p.m., Monday to Friday

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.

Police staked out Lance Williams' house for more than a year-ABC News

Police staked out Lance Williams' house for more than a year-ABC News

Reporters converge on Lance Williams' parents' house in Cottesloe, seeking interviews-ABC News

Reporters converge on Lance Williams' parents' house in Cottesloe, seeking interviews in relation to false trumped up allegations by David John Caporn the the head of the Macro Task Force that Lance Williams was the Claremont Serial Killer-ABC News

Peter Weygers' Claremont home was searched by police-ABC News

The  then lord Mayor of Claremont, Peter Weygers' Claremont home was searched by police in relation to false trumped up allegations by David John Caporn the the head of the Macro Task Force that Peter Weygers'  was the Claremont Serial Killer-ABC News

Taxi driver Steven Ross was questioned by police investigating the murders-ABC News

Taxi driver Steven Ross was questioned by police investigating the Claremont Serial Murders, in relation to false trumped up allegations by David John Caporn the the head of the Macro Task Force that Taxi driver Steven Ross was involved in the Claremont Serial Killings. ABC News

 

Teenager charged over Andrew Mallard's hit-and-run death in Los Angeles

What was Andrew Mallard accused of doing and how did he prove his innocence?

JohnQuigley-left-andAndrewMallard

John Quigley (left) Western Australian Attorney General and Andrew Mallard

Michael Kirby says he would support a body to review criminal cases where there are allegations of miscarriage of justice-ABC News

Michael Kirby says he would support a body to review criminal cases where there are allegations of miscarriage of justice-ABC News

There can not no doubt that former Assistant Western Australian Police Commissioner David John Caporn has already been exposed by public evidence that former Assistant Western Australian Police Commissioner David John Caporn was a corrupt police officer who abused his position as a police officer …  There is also the matter of former Assistant Western Australian Police Commissioner David John Caporn being accused of being involved in the stopping of the investigations in the allegations of sexual abuse of a young girl …. against well known Perth, footballer, Barry Cable ….

It seems clear that former Assistant Western Australian Police Commissioner David John Caporn has been given the Green Light to be involved in any criminal behaviour without fear of criminal investigation against former Assistant Western Australian Police Commissioner David John Caporn and without fear of being charged with any criminal offense… there is a lot more the NYT CSK Investigation Team can say about the criminal activities of former Assistant Western Australian Police Commissioner David John Caporn which will be brought up in due course ….

“To win Andrew Mallard’s High Court appeal would have to expose serious police corruption and that the police do everything to cover their tracks of corrupt behaviour and that if I helped Andrew Mallard to expose serious police corruption  that these corrupt Western Australian Police would go for my gutz…” ….. John Quigley, the Attorney General For Western Australia …
“ I have just seen a gross case of injustice against Andrew Mallard where three Supreme Court Judges refused Andrew Mallard’s Full Court Appeal which was based on the fact that material evidence has been held back by the police …
The appeal went on for 26 hearing days … which was unheard of… normally appeals will be heard over or two days at the most … so the three appeal judges got to hear everything .. the appeal was very well presented by Malcolm McCusker and his team … and all three judges at the end went on to say no ... "we dismiss the appeal "… 


I walked out of that court and thought that I must be the biggest idiot on the planet I have just seen a gross case of injustice against Andrew Mallard where three Supreme Court Judges refused Andrew Mallard’s Full Court Appeal that should have led to a retrial … and all three judges say no …”
 
“.. We had a person who was infirm … not insane by infirm … who had been picked upon by a group of very powerful and very dishonest police officers, who had been thrown in jail for the rest of his (Andrew Mallard’s) life .. and lazy old judges bearly with enough energy to lift their fountain pen to write the sentence “Life Imprisonment” frail of judges who were too lazy to properly scrutinize what the police were about … so I said to Andrew .. I actually help Andrew in my arms in prison because no one else could get in there … and Andrew was very very scared at that time he was 10 years into his 20-25 or 30 years that he had to do in prison … he was very frail at that point … so I held Andrew in my arms at that point and promised that so matter how long it took that I would never leave his side … never.. Andrew asked me if he would ever get out of prison … I replied …well only if we got this case back over to the High Court in Canberra … because although we would first have to appeal to Western Australian judges there would be no Western Australian Court that would overturn his conviction … because the consequences of doing so would be to identify the whole of the Western Australian Police, prosecution and court system as being corrupt … and no Western Australian Judge would have the balls to say that … because Perth is too anal and the tentacles of the system just get tangled around your throat … as you tear one corrupt tentacle off another one slithers around you … and have just got no chance …

"...We are all product of the experience we go through . we grow through our suffering .. for example, we grow through the experience of watching our father die … so what I am trying to say is that through this suffering we often grow into the better person .. and I am sure that through Andrew’s suffering that Andrew grew into something bigger and better … ” … Attorney General for Western Australia, John Quigley…

Andrew Mallard Set up of a false murder charge by the former Assistant Western Australian Police Commissioner David John Caporn and senior Western Australian Director of Public Prosecutions  prosecutor Kenneth Paul Bates and other police officers and the Director of Public Prosecutions for Western Australia

 I was wrongfully imprisoned .. there is a stigma that goes with that ,., and still goes with that … I still get abuse from certain members of the public …. I still get scoffed at etc. …. people don’t know the full story ….. they think I am some sort of psycho … some sort of mentally ill patient … I had done nothing wrong .. I was innocent and I protested my innocence from the word go .. for nearly 12 years I was protesting my innocence constantly and continually because it was the truth …

He would tell me that he never resolved his anger … he was always angry about the police and the prosecutors that brought the injustice .. Andrew was probably not for this planet .. the bad luck that Andrew had … he was not a soul that belonged here in some ways…
The Greeks talk about the Goddess Clotho would spin people’s fate .. Clotho was spinning against Andrew from the Get Go …
This whole story is like some Greek Tragedy … the audience thinks it’s all going well … but it all turns to mud …
Perth, 24th May 1994
Pamela Lawrence was violently murdered by someone else other than Andrew Mallard… who was deliberately set up to be wrongfully charged and wrongfully prosecuted by Freemason Police Officers and prosecutors, which included the former Assistant Western Australian Police Commissioner David John Caporn and senior WA DPP prosecutor Kenneth Paul Bates who Andrew Mallard supported by the ruling of the High Court and the Western Australian Corruption Commission … deliberately produced misleading evidence and withheld material evidence at Andrew Mallard’s murder trial which Andrew Mallard has always publicly claimed was … “… a serious criminal conspiracy to pervert the course of justice committed by former Assistant Western Australian Police Commissioner David John Caporn and senior WA DPP prosecutor Kenneth Paul Bates ……. and they should have been arrested and prosecuted for such a serious crime …. why are they allowed to get away with such criminal behaviour which destroyed and my family’s life ?…”

“.. we found that a lot of the information Andrew provided in the video interview with the police  was information fed to him by the undercover officer Gary … and fed to him by the detectives that were interviewing Andrew …”

“.. a report that had said they had done a test on a pigs head .. which showed that a wrench could not have inflicted those injuries of Pamela Lawrence … while all the while the prosecutor had marked and read and deliberately kept this information from the court .. this was something that a lawyer should never ever do ….”  … Attorney General for Western Australia, John Quigley…

“... over the course of my life, I had suffered from a behavioral situation where I would acquiesce … I would try to please people …”.. Andrew Mallard
“... and in fact that in the statement of facts to the prosecution certain police officers state their concerns that they did not think that I was the murdered anyway ….it’s in the statement of facts to the prosecution ”… Andrew Mallard

“... I have 3-4 years of psychotherapy to deal with post-dramatic stress .. for someone that has been found innocent after they have been wrongfully convicted there is no provision in the system for that .. you ate just spat out … you are spat out …. put are just spat out by the Belly of the Beast …. so to speak …. when I was first released … I used to have serious panic attacks … you have to remember I was still the prime suspect and thus people would give me a wide birth anyway … I hope that I am able to change things in the police and justice system .."...I never believed that I was incarcerated for the rest of my life, simply because I was innocent. .... 

Guys wearing suits came dashing across the road to me pulled me out of my seat and threw me over the bonnet of the car … handcuffed me and finally shoved me into the back seat of a police car … a detective sat either side of me on the back seat of the police car, then my head was violently pushed between my knees, and the next time I hear is the cocking of a weapon ... which I recognized as a gun from the time I spent in the army and a pistol was shoved into my face … "..... words spoken by Andrew Mallard.

"... I was determined to stay forward .... keep my head forward and keep going forward ... and I did that ,,,, " words spoken by Andrew Mallard.

“ … I hope that I am able to change things in the police and justice system .." .... I don't believe that there is an infallible justice system or an infallible police service because you are dealing with people .... and people make mistakes and people can be bad as I just said .. lawyers and police not only have a legal duty but also a moral duty to us the public and that is a very very difficult job and position to be in …  so I have great profound respect for the police service and the justice system and lawyers as a whole, but it is the people factor that always throws a wrench into the system …  , " words spoken by Andrew Mallard.

“...We tend to be brought up that the police and the justice system is just .. we have a justice system that carries out the law .. but I have serious doubts that the justice system is entirely just …”

What was Andrew Mallard accused of doing and how did he prove his innocence?

IWasFramedForMurderbyDavidJohnCapornAnsKennethBatesSaysAndrewMallard

"I was Innocent"....Andrew Mallard - Australian Story  
Andrew Mallard: Wrongfully jailed for 12 years
Andrew Mallard's wrongful murder conviction


"...I never believed that I was incarcerated for the rest of my life, simply because I was innocent. ... the detectives sat either side of me on the back seat of the police car, then my head was violently pushed between my knees, and the next time I hear is the coking of a weapon ... "..... words spoken by Andrew Mallard.
"... I was determined to stay forward ... keep my head forward and keep going forward ... and I did that ,,,, " words spoken by Andrew  Mallard.
" .... I don't believe that there is an infallible justice system or an infallible police service because you are dealing with people .... and people make mistakes ... " words spoken by Andrew Mallard.
"... I never look at the experience that I suffered as a negative thing ...  it made me a better person for it ... 
Andrew Mallard sat for 12 years behind bars and become the subject of documentaries and legal fights until his wrongful conviction was overturned and Andrew Mallard was set free in 2006 .... this documentary the unmaking of a Murdered was released a couple of years later ... 

Andrew Mallard spoke with Anne with his love of art and his desire to have a family ... his family says that it was that desire that brought Andrew Mallard to Los Angeles ... Andrew mallard came to Los Angeles this week to visit his fiance,... but while walking across Sunset Strip Boulevard in Los Angeles, but Andrew Mallard was struck and killed by a car yesterday morning ... not Andrew Mallard's family are on the fight for justice .. the driver of the car didn't stop and LAP Police are still trying to find that person ... Andrew Mallard's sister in Australia has told the media in Australia  that ..." they're heartbroken to have lost Andrew twice ..."

But those who know Andrew Mallars say that his ability to forgive will be his legacy and a lesson for us all ..... 

Right now police are looking for any information as to who killed Andrew Mallard .... again it happened here on Sunset Boulevard early Thursday morning ... they don't have a description of the car or the driver, but they are hoping that so much video footage and businesses here that something will lead the police to Andrew Mallard's killer 

Andrew Mallard was wrongfully imprisoned for the murder of Perth woman Pamela Lawrence-Australian Story

Andrew Mallard was wrongfully imprisoned for the murder of Perth woman Pamela Lawrence-Australian Story

Update:

Since this article was written a man has been arrested for the hit and run death of Andrew Mallard in Hollywood, Los Angeles, USA,

Teenager charged over Andrew Mallard's hit-and-run death in Los Angeles
By Madeline Palmer

Teenager charged over Andrew Mallard's hit-and-run death in Los Angeles

Teenager charged over Andrew Mallard's hit-and-run death in Los Angeles
By Madeline Palmer
 24 Apr 2019

https://www.abc.net.au/news/2019-04-24/teenager-charged-over-andrew-mallard-hit-and-run-death-in-us/11044648
Teenager charged over Andrew Mallard's hit-and-run death in Los Angeles
By Madeline Palmer
How was Andrew Mallard cleared?

Key points:
Andrew Mallard was run over on Sunset Boulevard in Hollywood
He had started a new life and was visiting his fiance at the time
Mr Mallard's family were informed by DFAT of the arrest


Andrew Mallard spent 12 years in jail for the murder of Pamela Lawrence — a crime he didn't commit. Here's how he was freed.
PHOTO: Andrew Mallard was wrongfully imprisoned for the murder of Perth woman Pamela Lawrence. (Australian Story)
PHOTO: Mr Mallard spent 12 years in jail until he was exonerated. (ABC News)
A 19-year-old man has been arrested in the US in relation to the hit-and-run death of Perth man Andrew Mallard, who spent 12 years in jail after being wrongfully convicted of murder.
Mr Mallard died after being stuck by a moving vehicle while crossing a road in Los Angeles last week.
He was hit by a car on the iconic Sunset Boulevard in Hollywood after leaving a bar late on Thursday night and could not be revived.
Mr Mallard had been visiting his fiancee during a trip from his new home in Britain, where he moved after being exonerated in 2006.
The LA Police Department had offered a $US25,000 ($35,000) reward for information into the incident.
US media outlet KTLA5 reported Kristopher Ryan Smith was charged with a felony hit-and-run after turning himself into police on Tuesday.

According to the LA County Sheriff's Department, Mr Smith was released on $US50,000 bail the evening of his arrest.
He is due to appear in the Los Angeles Municipal Court Traffic Division on May 14.


Mr Mallard's family confirmed they were informed of the arrest by the Department of Foreign Affairs and Trade.


Mallard wrongfully imprisoned for murder

Mr Mallard was convicted of the brutal murder of Perth wife and mother Pamela Lawrence in 1995 and was sentenced to 20 years.
Ms Lawrence was bludgeoned to the head in broad daylight on the afternoon of Monday May 23, 1994, at her jewellery shop Flora Metallica in the upmarket Perth suburb of Mosman Park.

She died hours later in hospital.

Mr Mallard was arrested for murder after several interviews with police, where he speculated how Ms Lawrence may have been killed and drew a picture of a wrench which police said he used to kill her.
Mr Mallard said he was fed information by police to repeat back to them, but police treated it as a confession and he was sentenced to 20 years' jail.

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

Police later admitted Mr Mallard wasn't responsible for the crime after a cold case review of Ms Lawrence's murder found shavings of blue paint recovered from her head linked the crime to murderer Simon Rochford.

Living in Perth had become 'untenable'

After receiving a record $3.25 million compensation payout from the West Australian government, Mr Mallard graduated from university with a degree in fine art and travelled to London to start a masters.
He told the ABC's Australian Story that living in Perth had become "untenable", as members of the public still treated him as if he was a murderer.
Mr Mallard was still based in the UK and frequently travelled to the US, where his fiancee lived, prior to his death.
A Corruption and Crime Commission inquiry was held into the alleged misconduct by police officers in the case, but the officers involved resigned after a police inquiry began, avoiding the disciplinary process.
Topics: death, community-and-society, law-crime-and-justice, wa, perth-6000, united-states

 

 JohnQuigley-left-andAndrewMallard

John Quigley (left) and Andrew Mallard 

John Quigley (left) was instrumental in getting Mr Mallard's murder conviction quashed. (ABC News)

 

 AndrewMallard_Colleen Egan_theDayOfAndrewsRelwaseFromCasurinaPrison

Colleen Egan@ColleenEgan1
On the day we walked from Casuarina prison...

Colleen Egan Chief of Staff to John Quigley Attorney General of Western Australia

https://www.businessnews.com.au/Person/Colleen-Egan

 "Colleen Egan - Wikipedia" https://en.m.wikipedia.org/wiki/Colleen_Egan

 

Colleen Egan

Colleen Egan was an Assistant Editor at The West Australian newspaper. She played a role in obtaining the acquittal of Andrew Mallard, a Western Australian man who had been wrongfully convicted of murder. She also unwittingly contributed to the political downfall of Western Australian Liberal powerbroker Noel Crichton-Browne when he made inappropriate sexual comments to her at a Liberal Party conference.[1]

 

History

Egan, who has principally been employed as a print journalist by The Sunday Times, first established herself as an investigative journalist in 2000 when her exclusive interviews with terrorist Jack Roche were published in The Australian.[2] Her work has since taken her to London, covering trials at the Old Bailey, and back to Perth as a weekly columnist for The Sunday Times. She is now Chief of Staff for WA Attorney General John Quigley.

Egan was approached in 1998 by the family of Andrew Mallard who had been convicted and detained in 1995 for the murder of jeweller Pamela Lawrence. Her subsequent investigations revealed that Mallard's conviction had been largely based on a forced confession. Her book on the case, Murderer No More: Andrew Mallard and the Epic Fight that Proved his Innocence, was published by Allen & Unwin in June 2010.[3]

 

Awards

 

See also

 

References

  1. ^ ABC Radio National's Media Report programme of Thursday, 10 August 1995 and from Crikey (crikey.com.au) on Thursday, 12 June 2008 - A Crikey list: MPs Behaving Badly Archived 14 June 2008 at the Wayback Machine.
  2. ^ "Article from Sydney Morning Herald website, dated 27 November 2002"The Sydney Morning Herald. 27 November 2002. Retrieved 17 June 2008.
  3. ^ "Murderer No More: Andrew Mallard and the Epic Fight that Proved his Innocence" by Colleen Egan, published by Allen & Unwin in June 2010.

External links

Andrew Mallard, a free innocent man, wore Buddhist beads. May he find a next life that is kinder. RIP

12:02 PM - Apr 19, 2019

Andrew Mallard, wrongfully jailed for 12 years over WA murder, killed in hit-and-run crash in US
By Herlyn Kaur and staff
 20 Apr 2019,
https://www.abc.net.au/news/2019-04-20/andrew-mallard-killed-in-hit-and-run-in-los-angeles/11032672

PHOTO: Andrew Mallard was wrongfully imprisoned for the murder of Perth woman Pamela Lawrence. (Australian Story)
RELATED STORY: When a murder confession is a con
RELATED STORY: I was framed for murder, says Mallard

A West Australian man who was wrongfully jailed for more than a decade has been killed in a hit-and-run crash in the United States.
Key points:
Andrew Mallard's family say they are devastated by his sudden death
Mr Mallard was convicted of the brutal murder of Pamela Lawrence in 1995
After 12 years in jail, a journalist, politician and pro-bono lawyers helped free him

WA Police have confirmed 56-year-old Andrew Mallard died in Los Angeles.
Mr Mallard was convicted of the brutal murder of Perth wife and mother Pamela Lawrence in 1995 and was sentenced to 20 years in prison.

He served 12 years in jail until the combined efforts of a journalist, politician and a team of high-profile, pro bono lawyers finally saw him exonerated.
In a statement, the family of Andrew Mallard said they were shocked to learn overnight of his sudden death.
Former journalist Colleen Egan, who played a role in obtaining the acquittal of Mr Mallard, said she was assisting the family with media queries.
"His mother, Grace Mallard, sister Jacqui and brother-in-law Wayne are all devastated by the news," she said in a statement.
"They are being assisted by the Australian consulate in the US."

The statement said Mr Mallard had been based in the UK and was travelling frequently to the US, where his fiancee lived, and was looking forward to getting married.

Family, friends mourn death
His sister Jacqui Mallard said the family was devastated his life was cut short.
"Those years were taken from him and now his life has been taken," she said.
In a statement, WA Attorney-General John Quigley told the ABC he was terribly saddened by the tragedy.
PHOTO: John Quigley (left) was instrumental in getting Mr Mallard's murder conviction quashed.
(ABC News)

After 12 years in jail, a journalist, politician and pro-bono lawyers helped free him
WA Police have confirmed 56-year-old Andrew Mallard died in Los Angeles.
Mr Mallard was convicted of the brutal murder of Perth wife and mother Pamela Lawrence in 1995 and was sentenced to 20 years in prison.
He served 12 years in jail until the combined efforts of a journalist, politician and a team of high-profile, pro bono lawyers finally saw him exonerated.
In a statement, the family of Andrew Mallard said they were shocked to learn overnight of his sudden death.
Former journalist Colleen Egan, who played a role in obtaining the acquittal of Mr Mallard, said she was assisting the family with media queries.
"His mother, Grace Mallard, sister Jacqui and brother-in-law Wayne are all devastated by the news," she said in a statement.

"They are being assisted by the Australian consulate in the US."
The statement said Mr Mallard had been based in the UK and was travelling frequently to the US, where his fiancee lived, and was looking forward to getting married.

Family, friends mourn death
His sister Jacqui Mallard said the family was devastated his life was cut short.
"Those years were taken from him and now his life has been taken," she said.
In a statement, WA Attorney-General John Quigley told the ABC he was terribly saddened by the tragedy.
"It's just fortunate that he got to spend 13 years of freedom after so much time wrongfully imprisoned," Mr Quigley said.
"My thoughts are with Grace and Jacqui."
Los Angeles Police are investigating.

'They framed me for a murder I did not commit'
Mr Mallard spoke to ABC's Australian Story in 2010, describing 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 said.
"I know what they did to me and it's the truth. They framed me for a murder I did not commit."

Ms 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 then 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.
Mr 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 Mr Mallard's conviction was quashed by the High Court amid allegations of police and prosecution misconduct.


Topics: murder-and-manslaughter, crime, law-crime-and-justice, perth-6000, wa, united-states, australia

 Robert Cock- QC- Former Director of the Director of prosecutions for Western Australia -last day-Departing DPP Robert Cock-ABC

Robert Cock- QC- Former Director of the Director of prosecutions for Western Australia -last day-Departing DPP Robert Cock. (ABC) 

Mallard prosecutor complaint passed on
 14 Aug 2009,

https://www.abc.net.au/news/2009-08-14/mallard-prosecutor-complaint-passed-on/1390544


PHOTO: Ken Bates stood down last month with a lucrative payout.

Ken Bates stood down last month with a lucrative payout-AfterHelpingToFRameAndrewMallard

The body that oversees complaints against lawyers has referred a complaint against a former prosecutor at the Director of Public Prosecutions (DPP) to an eastern states senior counsel.
Ken Bates was facing disciplinary proceedings for his role in the wrongful murder conviction of Andrew Mallard when he agreed to end his contract 19 months early.
He received a payout worth hundreds of thousands of dollars.
Correspondence, tabled in Parliament yesterday, revealed the Legal Practitioners Complaints Committee has referred aspects of a complaint against Mr Bates to a senior counsel in the eastern states.
The correspondence also revealed the former DPP, Robert Cock, wanted to negotiate an early end to Mr Bates' contract because he believed the disciplinary process was unlikely to be completed within two years.
The shadow Attorney-General, John Quigley  (now Attorney General of Western Australia _2019/2020),

says the information calls into question Mr Cock's suitability for his new role as special counsel to the State Government.
Mr Quigley says the information reveals Mr Cock's desire to save the DPP from embarrassment by sacking Mr Bates.
"Mr Cock did not want the truth of what happened to Andrew Mallard to ever see the light of day. He should have stood Mr Bates' down years ago," he said.
He says he has advised Mr Mallard to seek the advice of an eastern states Queens Counsel (QC) over whether Mr Bates and the two police officers involved in his wrongful conviction should face criminal charges.
Mr Cock's employer, the Public Sector Commissioner Mal Wauchope, has been unavailable for comment.
Topics: law-crime-and-justice, government-and-politics, parliament, state-parliament, judges-and-legal-profession, wa, perth-airport-6105
First posted 14 Aug 2009,

 Ken Bates stood down last month with a lucrative payout-AfterHelpingToFRameAndrewMallard

Ken Bates stood down last month with a lucrative payout.

Mr John Quigley (now Attorney General of Western Australia _2019/2020)

 says the information reveals Mr Cock's desire to save the DPP from embarrassment by sacking Mr Bates.
"Mr Cock did not want the truth of what happened to Andrew Mallard to ever see the light of day. He should have stood Mr Bates' down years ago," he said.

 "Andrew Mallard death: A WA man’s 12-year fight for justice and freedom | The West Australian" https://thewest.com.au/news/wa/andrew-mallard-death-a-wa-mans-12-year-fight-for-justice-and-freedom-ng-b881173914z.amp

Andrew Mallard death: A WA man’s 12-year fight for justice and freedom

Rhianna Mitchell The West Australian Sat, 20 April 2019 
Andrew Mallard, walks free after he was wrongly convicted of murder.
Andrew Mallard, walks free after he was wrongly convicted of murder. Credit: WA News
 

“I am an innocent man ... you have not heard the last of this.”

With those words, a then 33-year-old Andrew Mark Mallard was led from the dock of the Supreme Court in Perth towards a life sentence for a murder he did not commit.

 

It was far from the last the WA legal system would hear from this vulnerable “drifter”, who suffered from mental illness, and who had been wrongly convicted of murdering Mosman Park jewellery store owner Pamela Lawrence.

In fact, it was just the beginning. More than 10 years of legal appeals — during which sensational claims of withheld evidence, police corruption and bias in the judicial system and the media were aired — would follow before Mr Mallard would walk out of Casuarina Prison, exonerated.

 
Mallard family, including Andrew Mallard (far right)
Mallard family, including Andrew Mallard (far right) Credit: Supplied

Mr Mallard’s 12-year fight to clear his name, aided by his family and a high-profile team including then Labor MLA John Quigley, Malcolm McCusker and journalist Colleen Egan, would rock WA’s justice system.

British-born Mr Mallard, who lived in Mosman Park, was a petty thief with a marijuana habit who was prone to telling far-fetched stories.

The day before Mrs Lawrence was found dead, Mr Mallard was charged over a burglary and impersonating a police officer, relating to a tale he spun in various forms which involved him being a police informant acting as an undercover drug agent.

Mr Mallard was also, according to a psychiatrist who later testified at his pre-trial hearing, in the manic stage of a bipolar mood disorder.

Surveillance photos of Andrew Mallard with shaved head and tartan kilt in June 1994
Surveillance photos of Andrew Mallard with shaved head and tartan kilt in June 1994 Credit: Supplied

Pamela Lawrence, a wife and mother of two daughters, was a popular jeweller who established her business Flora Metallica on Glyde Street in 1973.

Her body was found by her husband Peter on May 23, 1994, in the midst of a huge storm which had swept across the western suburbs.

Police said Mrs Lawrence had been hit with an object at least 12 times. Their investigations led them to Graylands Hospital two days later, where Mr Mallard had been admitted after an unrelated minor court appearance.

Mr Mallard was interviewed a number of times, offering several different alibis. Later, he confessed to the killing and mentioned a potential murder weapon — a wrench — but then retracted it, claiming it was only his theory of what had happened.

Mr Mallard was charged with the wilful murder of Mrs Lawrence on July 19, 2004. He entered a plea of not guilty. In a Supreme Court trial which started on November 2, 1995, Mr Mallard was successfully prosecuted on the strength of his “confession” — unsigned, handwritten notes by police and a 20-minute videotaped interview on his theory as to what had happened.

During the trial he claimed detectives had fabricated parts of the interviews they related to the court, and had harassed, intimidated, beaten and threatened to shoot him as they interrogated him.

On November 15 a jury found Mr Mallard guilty. Five weeks later he was sentenced to life in jail, with a minimum of 20 years. In the moments after his son had proclaimed his innocence as he was led from the dock, Roy Mallard vowed outside court the family would not give up until their son and brother was exonerated.

Murder victim Pamela Lawrence.
Murder victim Pamela Lawrence. Credit: Supplied

“Andrew was convicted on unsigned and unseen statements written by the police,” he said. “There are so many holes in the case it’s not funny.”

So began the decade-long battle to free Mallard. His father would not live to see its conclusion, as he died from cancer in 1998, leaving his wife Grace and daughter Jacqui to continue the fight. They endured setback after setback, including an unsuccessful appeal to the Court of Criminal Appeal in 1996 and a failed High Court bid the year after.

A breakthrough finally came in 2002 when a new team of volunteers — led by Mr Quigley, now WA’s Attorney-General, Mr McCusker and Egan — served a petition to then attorney-general Jim McGinty, asking that the case be again referred to the Court of Criminal Appeal.

The petition contained new forensic evidence which was not disclosed in the trial — testing done by a forensic pathologist which found it was not possible for Mrs Lawrence’s wounds to have been caused by the wrench Mr Mallard described as the murder weapon.

It was also found police had not disclosed all witness statements to the defence and had retyped some statements to exclude matters favourable to Mr Mallard.

Mr McGinty agreed, but the Mallards’ joy was short-lived. The Court of Criminal Appeal rejected the bid. The group persevered and lodged an appeal to the High Court in 2003. Almost two years later, Mr Mallard’s conviction was quashed in a 5-0 judgment. Three months later, on February 20, 2006, Mr Mallard, 43, finally walked free from prison after 12 years.

Accompanied by his mother and sister, Mr Mallard said he was looking forward to a good night’s sleep without the rattle of guards’ keys to keep him awake.

Murderer Simon Rochford killed himself in Albany Regional Prison a day after he was questioned about the murder of Pamela Lawrence in 1994.
Murderer Simon Rochford killed himself in Albany Regional Prison a day after he was questioned about the murder of Pamela Lawrence in 1994. Credit: Supplied

He still had the threat of a retrial hanging over him but that disappeared when a new suspect emerged in May of that year. It was revealed convicted murderer Simon Rochford’s palm print had been found in Mrs Lawrence’s store, but before any investigation could proceed Rochford was found dead, of apparent suicide, in Albany Prison the next day.

It would be another three years — during which a Corruption and Crime Commission inquiry delivered misconduct findings against two police assistant commissioners and a senior prosecutor — before the Mallard case drew to a close. A decade ago, on May 5, 2009, the State Government offered Mr Mallard a $3.25 million ex gratia payment.

He pledged to spend it on his mother and sister and rebuilding his life. “I want to be like everybody else. I want to have a wife and a family and to provide for my family through my own efforts,” he said.

"Australian Andrew Mallard's last call to family revealed before death in LA hit and run" https://www.dailymail.co.uk/news/article-7074639/amp/Australian-Andrew-Mallards-call-family-revealed-death-LA-hit-run.html

'He said he was getting married, that he'd met a girl': Revealed - the heartbreaking last phone call of Australian man who died in a hit-and-run after being jailed for 12 YEARS over murder he didn't commit 

By Kylie Stevens and Kelsey Wilkie For Daily Mail Australia13:53 27 May 2019, updated 14:29 27 May 2019

 
  • Friends have recalled their shock to news of the tragic death of Andrew Mallard
  • Killed in a hit and run in Los Angeles last month, 13 years after freed from prison
  • Wrongly spent 12 years behind bars for the 1994 murder of Pamela Lawrence
  • Had called his family the night before his death to say he was getting married 

An innocent man who spent 12 years behind bars for a murder he didn't commit had called his family to say he had fallen in love the night before his life was abruptly cut short in a hit-and-run in Los Angeles.

Australian Andrew Mallard, 56, was tragically killed after he was struck by a car while crossing a road at Sunset Boulevard and Formosa Avenue in Hollywood last month. 

He was found guilty of killing Perth jeweller Pamela Lawrence in 1994 in one Australia's worst miscarriages of justice.

He spent more than a decade in jail before his conviction was quashed in the High Court in 2005, which saw him to be released the following year.  

WA Attorney-General John Quigley and journalist Colleen Egan, who played an integral role in overturning Mr Mallard's conviction, have recalled their shock to the news of his recent death.

Andrew Mallard endured one of Australia's worst miscarriages of justice before his life was tragically cut short in a hit and run crash in April

'He had called them just the night before and said he was getting married, that he'd met a girl and that he was totally in love. They are obviously very devastated. Grace (his mother) is 92 years old now,' Ms Egan told ABC's Australian Story.

Mr Quigley described him as gentle man and honest person.

'I can't tell the feeling of grief that washed over me. I held that man in my arms in prison and promised I'd never leave him. I felt just a little bit of me die when I heard this news,' he said.

'I just think it's so unfair, so sad, what happened. I'd like to think that Andrew's soul is resting in peace.'

Friend Tonina Khamis expressed her disbelief to the news revealed he had recently written to her to say he was well and happy.

'I'm still processing it, and I'm thinking, well, maybe the universe had other plans for him. Maybe the grass is now greener on the other side for him,' she said.

Journalist and author Colleen Egan (pictured) was woken by the tragic news that Andrew Mallard, the man she helped be released from prison had been killed in a hit and run

The episode also aired parts of its 2010 interview with Mr Mallard.

'I was wrongfully imprisoned. There's a stigma that goes with that and it still goes with that,' he told Australian Story nine years ago.

'I still get abuse from certain members of the public. I still get scoffed at. People don't know the full story. They think I'm some sort of psycho, some sort of mentally ill patient.

'I had done nothing wrong. I was innocent and I protested my innocence from the word go. For nearly 11.5, nearly 12 years, For nearly 11.5, nearly 12 years, I was protesting my innocence consistently, continually.'

A man, 19, has been charged over the hit and run that killed Australian Andrew Mallard

Monday night's episode ended with a statement from Pamela Lawrence's family to say they were shocked and deeply saddened by Mr Mallard's death. 

They added their only solace was that he regained his freedom and saw his name cleared. 

'We had high-profile people from the police and the prosecution that were still confident they had the right person,' Ms Lawrence's daughter Katie told the program in 2010.

'It didn't occur to us that... ..the justice system could have failed so dismally.'

CCTV footage captured the heartbreaking moment Mr Mallard was struck by a silver sedan in Los Angeles. 

WA Attorney-General John Quigley (pictured) remembered Mr Mallard as a gentle person

In the footage Mallard can be seen casually strolling across the road at Sunset Boulevard and Formosa Avenue in Hollywood, near where his fianceé lives.

The footage shows Mallard suddenly stopping as the vehicle, with its headlights on, approaches.

The sedan does not slow down as it ploughs threw Mallard before fleeing east on Sunset Boulevard.

Dozens of onlookers can then be seen rushing to his rescue before he died at the scene.

Kristopher Smith, 19 was charged several days later with felony hit and run involving injury or death and had bail set at $A71,300.

 

'I panicked,' Smith told LA TV station CBS2.

'I just went home to my mum.'

The night before he died, Andrew Mallard (pictured with his sister and mother) had told his family that he was getting married and was 'totally' in love

Smith says he did not see Mr Mallard as the Australian walked across busy Sunset Blvd.

He added he was 'sorry for the accident' and he felt 'sorry for the victim's family'. 

Mr Mallard's family has been left devastated by his tragic passing.

'He suffered injustice and spent almost 12 years in prison for something he didn't do,' his sister Jacqui Mallard told The Australian last month.

'Those years were taken from him and now his life has been taken. We are heartbroken.'

Andrew Mallard featured on Australian Story in 2010, four years after he was released
Andrew Mallard pictured with his biggest supporters, mum Grace and sister Jacqui

Mr Mallard was free for only 13 years after being cleared of murder.

Pamela Lawrence, a business owner in Mosman Park, Perth, was attacked at her jewellery shop on the afternoon of Monday, 23 May 1994.

She was attacked sometime between 3pm and 6pm and died in an ambulance at 7pm.

Mr Mallard quickly became a suspect because a witness saw a man matching his description outside the shop.

He had been released from police custody earlier that day after being arrested for breaking into his his girlfriend's ex-boyfriend's apartment and was seen arriving in Mosman Park in a taxi at around 5pm.

Mallard had a history of mental illness but no history of violence. There was also no weapon, blood or DNA connecting him to the case.

Two key pieces of evidence led to his conviction – the first was police notes from interviews with Mallard where it was claimed Mallard had confessed.

The family of Pamela Lawrence (pictured above) were deeply saddened by Mr Mallard's death

The second was 12 minutes of an 11-hour interview where Mallard was filmed speculating how Ms Lawrence may have been killed.

'If Pamela Lawrence was locking the store up, maybe she came in through the back way, the front door was already locked… Maybe she left the key in the back door and that's why he had easy access, and that's why she didn't hear him until he was… in the store,' he told police.

Mallard spent 12 years of his life sentence at Casuarina Prison in Perth before he was released in 2006.

Months later a cold-case review found a palm print linking English backpacker Simon Rochford to the crime scene.

The convicted murderer was serving a 15 year minimum sentence for bashing his girlfriend Brigitta Dickens to death.

Simon Rochford (pictured) was later linked to the crime scene of Pamela Lawrence's murder in 1994. He committed suicide in a Western Australian jail days after he was interviewed by police

He had four years left on his sentence when he was questioned by police in relation to mother-of-two Ms Lawrence's death.

A week later he committed suicide in a West Australian prison after being publicly named as the new suspect for Ms Lawrence's murder.

The following year, in 2007, a Corruption and Crime Commission inquiry found that police had withheld crucial information from Mallard's defence team, including details of an undercover operation.

It also emerged that two police officers had caused witnesses to alter their statements.

Mallard was granted a $3.25million compensation payment for his time behind bars after lengthy negations with the state government in 2009.

He later moved to the United Kingdom, while also spending time in America. 

Kristopher Smith, 19 (pictured) was charged over the hit and run that killed Andrew Mallard

Andrew Mallard's case: A timeline

1994: Perth jeweller Pamela Lawrence is brutally killed with a heavy instrument in her own store. The murder weapon has never been found

1995: Andrew Mallard is wrongly convicted of her murder

1996: Mallard's appeal to the Supreme Court of Western Australia is dismissed

2003: After spending eight years of his sentence of life imprisonment in strict security, he petitioned for clemency

The Attorney-General for Western Australia referred the petition to the Court of Criminal Appeal, which later dismissed the appeal

2005: Mallard's appeal is heard in the High Court, his conviction is quashed

2006: After 12 years behind bars, Mallard is free

A cold case review is held and uncovers a partial palm print linking British backpacker and convicted murder Simon Rochford to the crime scene

A week after Rochford is questioned by police, he is found dead in his prison cell from suspected suicide

2007: A Corruption and Crime Commission investigation into the case leads to two assistant police commissioners, Mal Shervill and David Caporn, being forced to step down

2009:  Mallard is granted a $3.25 million ex gratia payment for his time behind bars

2019: Mallard is killed in a tragic hit and run in Los Angeles 

On completing his fine arts degree at Curtin University, Mr Mallard left WA for Britain, where he planned to continue his studies, in August 2010. It appears he had finally found the happiness he sought when his life was tragically cut short this week.

The Wronged Man: Andrew Mallard

 https://www.abc.net.au/austory/the-wronged-man:-andrew-mallard/11121148

Introduced by Western Australia's Attorney-General John Quigley

When Pamela Lawrence was brutally murdered in her Perth shop in 1994 police focused their investigation around one suspect, Andrew Mallard.

He quickly became the victim of a miscarriage of justice, spending twelve years in jail for a crime he didn’t commit.

Mallard’s family fought successfully to release him, enlisting then WA Shadow Attorney-General John Quigley and journalist Colleen Egan who uncovered a trail of deception and police misconduct.

In this updated episode of Andrew Mallard’s story, Australian Story talks to the friends who stood by him until his untimely death last month.

INTRODUCTION: Hello.I’m John Quigley, the Attorney- General for Western Australia. Twenty five years ago a much loved woman was brutally murdered. It led to one of the most disgraceful events in WA’s legal history, an event that I became intimately involved in. Andrew Mallard was wrongfully convicted of the crime and spent 12 years in prison before being exonerated and compensated. Andrew told his story on this program nine years ago, tonight the final chapter.

ANDREW MALLARD:  I was wrongfully imprisoned.  There’s a stigma that goes with that and still goes with that. I still get abuse from certain members of the public.  I still get scoffed at et cetera.  People don’t know the full story.  They think I’m some sort of psycho, some sort of mentally ill patient. I had done nothing wrong.  I was innocent and I protested my innocence from the word ‘go’.   For near eleven and a half - nearly 12 years, I was protesting my innocence consistently, continually, because it was the truth!

TONINA KHAMIS, FRIEND: He would often tell me that he never resolved his anger. He was always angry about the police and the prosecutors that brought the injustice.

COLLEEN EGAN, JOURNALIST AND AUTHOR: Andrew was probably not for this planet. I mean the bad luck that he had. He was just not a soul that belonged here in some ways

JOHN QUIGLEY, WA ATTORNEY GENERAL: The Greeks talk about the goddess Clotho who spins people’s fate. Clotho was spinning against Andrew from the get go.This whole story is like some Greek tragedy the audience think this is going well then it all just turns to mud

COLLEEN EGAN, JOURNALIST AND AUTHOR: It was about five o’clock in the afternoon and that day was the day of a big freak storm.  Everyone in Perth remembered it for this terrible weather that suddenly came in. Shops were closing up around Glyde Street in Mosman Park where Pamela Lawrence had a little jewellery store. Pamela’s husband, Peter Lawrence went down to the shop and realized that she had been bludgeoned in a very, very violent attack.

KATIE KINGDON, Pamela Lawrence’s daughter:  And the paramedics brought mum out of the shop on a stretcher  and into the back of the ambulance.  I saw her.  She was just bandaged and her face looked beautiful as usual, she was just in a jumper and jeans and she just looked like she was asleep with a bandage round her head. When I got home I called the hospital and the nurse that answered the phone said to me that they’d stopped CPR because they couldn’t do anything.  And then I had to go and tell my sister which was probably the worst moment of my life.

COLLEEN EGAN, JOURNALIST AND AUTHOR: Understandably there was a very big manhunt that went on immediately for who may have killed this woman who didn’t seem to have an enemy in the world. There was 136 initially on the suspect list, because someone had seen someone in the window, a man and there was an identikit description put out, and so the police amassed a large number of suspects and Andrew Mallard was one of those suspects. 

ANDREW MALLARD: I was down on my luck, I was vulnerable, I was living on the streets, I was trying to survive. I was suffering from a nervous breakdown basically and I was so embarrassed by the situation that I didn't want to approach my family for help, so I tried to make it on my own.

GRACE MALLARD, MOTHER: He hadn’t been eating.  He’d been smoking pot and living rough.  I mean he just was not normal at that time.  Not what you’d call stable anyway.  He wasn’t stable.

COLLEEN EGAN, JOURNALIST AND AUTHOR: It’s not difficult to see how Andrew became a suspect in the first place. He’d had a  bit of a mental breakdown. He was acting quite erratically and ended up in Graylands Psychiatric Hospital as a result of some things he was doing including some sort of petty crime and thievery and one occasion where he pretended to be a police officer and broke into a flat

JOHN QUIGLEY, WA ATTORNEY GENERAL: So he went in for 21 days.  But whilst in hospital he was then interviewed by the police. He was not offered the public advocate or anyone from Legal Aid. Or indeed he didn’t even have a mental health nurse with him. You’re asking a mental patient in a psychotic condition as to his exact movements at a specific time some two or three weeks before. So over a period of two or three days they excluded what Andrew was putting forward as alibi evidence and then came back and said "You're a liar".

COLLEEN EGAN, JOURNALIST AND AUTHOR: After Andrew was released from the psychiatric institution, within hours of his release from there, he was put straight into a police interview room with Detective Caporn and he was there for eight hours,

ANDREW MALLARD: At that point I knew he was looking at me as the murderer.  And this is when I started to protest my innocence.  I said, ‘Look I’ve had nothing to do with that I’ve had nothing to do with that murder.  I’m innocent.’

COLLEEN EGAN, JOURNALIST AND AUTHOR:  None of that was recorded and out they came saying we have got a confession. It always seemed strange that while they said he confessed during that first 8 hour period they let him out on the street

ANDREW MALLARD: And during that week of brief, confused, dazed freedom, I am approached by a man introducing himself as Gary. Gary was actually I now know, an undercover officer.

JOHN QUIGLEY, WA ATTORNEY GENERAL: The undercover officer took Andrew about Fremantle, bought him hotel rooms, bought him alcohol, supplied him with a bong and on Andrew's account, cannabis.

COLLEEN EGAN, JOURNALIST AND AUTHOR: He was really fuelling this mania.When they brought him back a week later into the same interview room, sat there for another couple of hours with him and then decided to put him on video. 

EXTRACTS POLICE INTERVIEW

OFFICER: We brought you in this morning and we had a conversation in relation to the murder of Pamela Lawrence at Mosman Park.  Do you agree with that?

ANDREW MALLARD: I do.

 

ANDREW MALLARD:  I had over the course of my life suffered from a behavioural situation where I was  I would always acquiesce.  I would try to please people.   I was a people pleaser.

 

OFFICER: And you told us that you went in the rear went through the rear of the shop at Flora Metallica.  Is that what you told us?

ANDREW MALLARD: I told you that.

OFFICER:Okay, okay. I’m just going to go through that now okay – what you told us.  We’ll sort the rest out later.  Okay?

COLLEEN EGAN JOURNALIST AND AUTHOR:  And they were just very leading questions from the detective trying to get Andrew to agree with things that he was saying and really so much of it just was clearly theorising.

OFFICER: You described the steps to us and you described the rear door and the flyscreen door.

ANDREW MALLARD: I did.  May I say something else?

OFFICER: Okay, yeah.  Go on.

ANDREW MALLARD: If Pamela Lawrence was locking the store up, maybe she came in through the back way and the front door was already locked and she left the key in the back door, and that's why he had easy access and that's why she didn't hear him until he was  
OFFICER: We'll go on with what you told us earlier ok before we go into anything else,

COLLEEN EGAN:  We found out that a lot of the information that he was giving in that video interview and in earlier interviews was information fed to him by the undercover officer and fed to him by the detectives that were interviewing him.

OFFICER: the fact is that you told us all these things and you now say that that was a complete pack of lies, that all the things that you told us was

ANDREW MALLARD: I say that is my version, my conjecture of the scene of the crime.

OFFICER: Ok no worriesWe’ll leave it at that.  End of story.  Thanks very much.

GRACE MALLARD, MOTHER:  The next thing we knew we had a telephone call from a policeman to say they’d arrested Andrew for murder.

NEWS REPORT: Today a breakthrough Cop:Major crime squad have  today charged Andrew Mark Mallard thirty one years of age with the wilful murder of Pamela Suzanne Lawrence

I couldn't believe it. You know? Andrew? Andrew's not violent. He's not a violent person, never was. He was a very gentle type of person. And you know, it just floored us.

KATIE KINGDON, PAMELA LAWRENCE'S DAUGHTER:  Dad and Amy and I attended most of the trial. Ken Bates, the prosecutor, set my family at ease.  He was confident that they had the right person. 

COLLEEN EGAN, JOURNALIST AND AUTHOR:  The whole of the case was based on these so‑called confessions. 

NEWS REPORTThe jury heard that although Mallard had twice confessed to the murder but had later retracted those confessions, there were 15 things he’d told police that only the killer would have known. 

COLLEEN EGAN, JOURNALIST AND AUTHOR: There was no DNA, there were no fingerprints, there was no blood, despite this being a horrendously bloody scene, there was nothing forensically at all.The most damning single piece of evidence against Andrew at trial and when he was later trying to get his convictions overturned was this Sidchrome wrench drawing that he'd done during the unrecorded part of the police interview.  We now know, having heard the body wire tapes of Gary the undercover officer that Sidchrome and the wrench was all discussed during that undercover operation that we never knew anything about. And the prosecutor said "With this wrench he killed her" and Andrew was quickly convicted. 

NEWS REPORT: “Mallard, 33, continued to protest his innocence throughout the sentencing hearing frequently interjecting.   Outside the court, Mallard’s father also protested his son’s innocence.”

ROY MALLARD, FATHER: “We know my son Andrew is innocent of this terrible crime.  The real murderer is still free.

CAPTION:

Andrew Mallard was sentenced to 20 years in jail in 1995.

Appeals to the WA Supreme Court and the High Court failed.

His family fought on.

COLLEEN EGANN, JOURNALIST AND AUTHOR:  I got a phone call one day from Grace Mallard. And as a last resort I suppose, they came to me working as a journalist to try and investigate the case and find fresh evidence. When I was reading the transcript I really couldn't believe that anyone could be convicted on the evidence that Andrew was convicted on. In 2002, I’d already been looking at this case for four years.  Andrew was getting quite desperate.I was working as a political journalist and in my former life as a court reporter, John Quigley was one of the best‑known and smartest lawyers in town and John Quigley had joined with the Labor Party, the backbench of the government 

JOHN QUIGLEY, WA Attorney-General:  I had for about 25 or 30 years been the counsel of choice for the Western Australian Police Union in Perth

COLLEEN EGAN, JOURNALIST AUTHOR: Taking the case to John Quigley was a huge risk, mostly because he had worked for all that time for the police. But really, it turned out to be the best thing that we could ever have done. Within months of taking the case to John Quigley, we had breakthroughs.   He saw things in the transcript that I didn’t see because he understood police procedure so well.  He could also get access to things that I just couldn’t get access to as a journalist. 

JOHN QUIGLEY, WA ATTORNEY GENERAL:  I indicated to the Attorney‑General of the day Mr McGinty that I was about to make a big speech in Parliament.The Attorney‑General then, perhaps in an effort to avoid such a controversial speech being made, came to an agreement the DPP would lay on the table the whole of their file including their correspondence file, their litigation file. The DPP took me straight to a file and said the prosecutor's brought this file up to me and has marked this page and said "This should have been shown to the defence, this should have been shown to the court, and he's looking very ill the prosecutor  but you should read it now". And I was just stunned. What is this page?

At trial the prosecutor, Mr Bates, had said on over 80 occasions that Andrew Mallard had murdered Pamela Lawrence by beating her about the head by a wrench.  Whilst he was speaking those words, he had on his file on bar table a report which said that they'd done a test on a pig's head which had convinced the pathologist that a wrench could not have inflicted those injuries. This was crucial evidence in the trial which he'd had all the while which he'd marked, so he'd read and had kept it from the court.  This was something that a lawyer should never, ever do.

ANDREW MALLARD:  And in fact, in the statement of facts to the prosecution, certain police officers state their concerns that they don't think that I was the murderer anyway. It’s in the statement of the facts to the prosecution.

GRACE MALLARD, MOTHER:  Jacqui and I and Quigley went to the prison to see Andrew and of course Quigley being an MP got a special room for us .

JOHN QUIGLEY, WA ATTORNEY GENERAL: I went in there and I said “I know your son’s innocent”. I did something I hadn’t done with a client before.  I hugged him.  And I hugged him as hard as I could and I said  I will never ever leave you no matter how long it takes you, for the rest of your life, I will never leave you.”

CAPTION: Andrew Mallard lodged a fresh appeal with the WA Supreme Court

COLLEEN EGAN, JOURNALIST AND AUTHOR:  We found original statements of witnesses just didn’t correspond with the evidence of their second statements and even third statements that were presented in court.  So it really showed a pattern of manipulation of evidence against Andrew Mallard.

NEWS REPORT: JACQUI MALLARD: “I’d just like to say that the wrong man is in jail, that this is an injustice. 

KATIE KINGDON, PAMELA LAWRENCE'S DAUGHTER:  I never had any anger towards Andrew’s family but the team of people that were helping him, I felt like they must have their own agendas.  And we had high profile people from the police and prosecution that were still confident they had the right person. It didn’t occur to us that the justice system could have failed so dismally 

NEWS REPORT:  “It was claimed Mallard hit the mother of two with a wrench and drew a picture of the weapon for police.  Today defence lawyer Malcolm McCusker QC said his client provided the drawing after being stripped naked and beaten by police.”

CAPTION

Mallard’s second appeal failed when the Court found the new evidence did not alter the case against him.

The High Court disagreed and in 2005  quashed his conviction and ordered a retrial.

 

JOHN QUIGLEY SPEECH TO PARLIAMENTHere’s a man that’s been in jail now for 11 years and the High Court has said it’s because the police and prosecution suppressed evidence.

 

 Detective Sergeant Shervill and Detective Constable Caporn are now of course, assistant commissioners who sit around the command table.

 

Anything in the brief that didn’t fit with their theory that Mallard was the murderer, they simply went back to a witness and got them to change the  statement.

CAPTION

The DPP dropped the case because some evidence, including Mallard’s confession, was no longer admissible. But it declared that he was still the prime suspect.

COLLEEN EGAN, JOURNALIST AND AUTHOR:  I was so angry. Everybody was furious. They still would not admit that they got it wrong. After 12 years Andrew was finally getting out of jail but they still had to just dig it in and claim that he was still guilty.

KATIE KINGDON, PAMELA LAWRENCE'S DAUGHTER: The day that Andrew was released was a very difficult day for our family, because at that stage we still believed that he was guilty. I was terrified at the thought of him being released and being out there walking around in Perth - that we might bump into him.  I didn’t know how he’d react.  I was really scared at that thought.

NEWS REPORT ANDREW MALLARD:  “I just want a good night’s sleep, free from officers viewing me in the port, and keys jangling and all that sort of thing.  I just want to be able to sleep in peace.”

ANDREW MALLARD:  I've had three years, nearly four years, of psychotherapy to deal with post-traumatic stress. If someone is found innocent after they've been wrongfully convicted, there's no provision in the system for that. You're just spat out, you're spat out of the belly of the beast so to speak and left to fend for yourself.

When I was first released I used to have tremendous panic attacks. And you have to remember I was called a prime suspect at that time too, so people used to give me a wide berth anyway. 

COLLEEN EGAN, JOURNALIST AND AUTHOR: And Andrew would have lived for the rest of his life with this hanging over his head so myself in the newspaper, John Quigley in the parliament, Malcolm McCusker in press conferences, really put a lot of pressure on the police service to have another look at this case, and they finally agreed to do a cold case review.

NEWS REPORT: “Police have enlisted the help of British expert, David Barclay, David Barclay: “The Physical evidence review looks at everything possible that we could get from all of the items and then tries to map them across on to all the scenarios and all the people.

 Reporter:  New digital technology has matched a palm print found on a glass cabinet in her Mosman Park jewellery store, to a man currently in jail for another violent crime believed to be a murder.”

Asst Commissioner Dawson: “It is a new development.  It is a significant development.

JOHN QUIGLEY, WA ATTORNEY GENERAL:  The palm print that the cold case reviewer was shown led him to Simon Rochford, who was serving life for the murder of his girlfriend whom he had murdered but seven short weeks after the murder of Pamela Lawrence. 

COLLEEN EGAN, JOURNALIST AND AUTHOR: Significantly, both women had identical injuries in their heads and it was caused not by a Sidchrome wrench, but by a very strange and makeshift instrument that Simon Rochford had made and then used to kill both women.

JOHN QUIGLEY, WA ATTORNEY GENERAL:  Moreover, Dr Cooke during the autopsy of the late Pamela Lawrence had recovered from her head some shavings of blue paint and no‑one knew where this blue paint had come from. But it was an exact match to fragments of blue paint still in Simon Rochford's knapsack that the police still had after all these years.  The knapsack in which he'd kept the murder weapon.

CAPTION

Within days of being questioned by police about Pamela Lawrence’s murder, Simon Rochford took his life in prison.

REPORTER: “Today the release of a cold case review, finding the 44 year old had played no part in the 1994 murder of Pamela Lawrence.

COMMISSIONER KARL O’CALLAGHAN:  “Mr Mallard spent 12 years in prison for a crime we think he didn’t commit.  He’s no longer a person of interest and I’ve apologised to him for any part the WA Police may have played in that.

KATIE KINGDON, PAMELA LAWRENCE'S DAUGHTER:  :The last thing any of us would have wanted, especially the last thing mum would have wanted, was for the wrong person to be punished over her death.

NEWS REPORTER: The CCC has recommended disciplinary action against Asst Commissioners Mal Shervill and Dave Caporn and senior DPP lawyer, Ken Bates.

COLLEEN EGAN, JOURNALIST AND AUTHOR:  Each of them were allowed to leave with all of their entitlements, and while they have gone through the suffering of their reputations and I recognise that that is punishment for them, they haven't been made to face the consequences in the way that Andrew certainly would like to see.

KATIE KINGDON, PAMELA LAWRENCE'S DAUGHTER:  I have enormous regrets at how long it took me to realize that Andrew was innocent. I really want people to know that my family believe Andrew's innocent, 100%, and we have nothing but regret for what he's been put through what his family and his supporters have gone through, and if it wasn't for them, I don't think we'd have ever of known the truth

ANDREW MALLARD: These people need to be made accountable for their actions.   In my view there was a conspiracy to pervert the course of justice. This is a crime. Why should these people be above the law?   Is this a democracy or a fascist state, I ask you

TONINA KHAMIS, FRIEND: I met Andrew shortly after his release from prison and he was referred to me for art therapy. I extended a hand of friendship, my partner and I and he would often come out with us to social events art exhibitions parties and he really that was the happiest I had seen him he was connecting and he felt that he belonged. He was a bit of a larrikin, so he used to make us laugh.

COLLEEN EGAN, JOURNALIST AND AUTHOR: He ended up getting compensation, $3.25 million dollars. It's odd that he actually was happier before he got the money

TONINA KHAMIS, FRIEND: He was very reckless with his spending. It was like there was no tomorrow. He was always buying the latest thing you know he bought an Aston Martin and then he sold that he said to me ‘Money doesn’t make you happy’. All he wanted was to find love and have a family of his own and nothing else mattered.

COLLEEN EGAN, JOURNALIST AND AUTHOR: Andrew was always looking for that one, for that soulmate for the one that was gonna be the love of his life. And wanting to reclaim those years that he lost. I mean he lost most of his 30s and part of his 40s

TONINA KHAMIS, FRIEND He did a degree in fine arts and he did quite well and sold a few pictures. There seemed a theme in his art that you know he’s in a foetal position

TONINA KHAMIS SHOWING PAINTING: This is how he felt in prison isolated wounded lonely. He never really got rid of that wound. It was always there. He’d always go back to it

JOHN QUIGLEY, WA Attorney-General: I used to tell my clients when I was a defence lawyer that even after a verdict of not guilty they’d still be stained by the allegation it’s like spilling beetroot on yourself you can’t quite get the stain off it there’s always a remnant stain on your character

COLLEEN EGAN, JOURNALIST AND AUTHOR: It was difficult for Andrew because he was so recognizable in Perth he was sort of infamous. After he got his compensation there would be people who were trying to get money out of him. So he really wanted to be anonymous and then decided that he was going to go over to England

TONINA KHAMIS, FRIEND: Andrew always thought the grass was gonna be greener on the other side and he would go there but he’d face different issues and he'd always come back feeling more troubled and disillusioned. And then he’d say ‘Oh I think Perth is my home. This is where I belong with my family and friends.

COLLEEN EGAN, JOURNALIST AND AUTHOR: He painted pictures for me and brought them around and inscribed lovely things on the back of them.

Reads back of paintingTo Colleen I am very grateful for you help and kindness you gave is an example to me that I can pass on to someone else in life. My heart is stronger for knowing you .And that was the last time I saw him

NEWS REPORTER: This is a sad story for so many reasons Pat you have to understand that Andrew Mallard spent more than a decade behind bars after being convicted of a crime he didn’t commit. He was out he was living his life he was crossing this street here in Hollywood when injustice hit him for a second time

COLLEEN EGAN, JOURNALIST AND AUTHOR:  I got woken up by a phone call by a senior policeman who rang and told me that Andrew had been in a fatal accident in California. And it was a hit and run.

NEWS REPORTER: He checks both ways and crossed the famous Sunset Strip then a sudden flash of headlights, the driver doesn’t stop

JOHN QUIGLEY, WA Attorney-General: I can’t tell how ah the feeling of grief that washed over me.

I held that man in my arms in prison and promised I'd never leave him. I felt just a little bit of me die when I heard this news

NEWS REPORTER: And had been rebuilding his life when it was tragically cut short

TONINA KHAMIS, FRIEND: I dropped the phone. I could not believe it. And you know he’s written to me to say he’s well and happy

COLLEEN EGAN, JOURNALIST AND AUTHOR: Andrew’s family always loved him. He had called then the night before and said he was getting married that he’d met a girl and that he was totally in love.They are obviously very devastated. Grace is 92 years old now

TONINA KHAMIS, FRIEND :I’m still processing it and I’m thinking well maybe the universe had other plans for him. Maybe the grass is now greener on the other side for him

JOHN QUIGLEYWA ATTORNEY GENERAL:  Andrew was a gentle man an honest person.  I just think it’s so unfair so sad what happened.  I’d like to think that Andrew’s soul is resting in peace        

END CAPTION

Networked Knowledge - Media Report
[This edited version of the report has been prepared by Dr Robert N Moles]
 
4 October 2010 ABC Australian Story – Andrew Mallard: The Wronged Man Part Two
 
CAROLINE JONES, PRESENTER: Hello I’m Caroline Jones.
 
Tonight, we continue the story of Andrew Mallard who spent 12 years in prison, wrongfully convicted of murder. When finally he was exonerated, the truth revealed serious misconduct on both the part of police and prosecution. Andrew Mallard is telling his story for the first time, as he presses for those involved to be brought to account.
(Recap of last week’s show)
COLLEEN EGAN, JOURNALIST AND AUTHOR: That day was the day of a big freak storm. Shops were closing up around Glyde Street in Mosman Park where Pamela Lawrence had a little jewellery store. Pamela’s husband went down to the shop and realized that she had been bludgeoned in a very, very violent attack.
KATIE KINGDON, PAMELA LAWRENCE’S DAUGHTER: They’d stopped CPR because they couldn’t do anything.
COLLEEN EGAN, JOURNALIST AND AUTHOR: There was 136 suspects initially on the suspect list. Andrew Mallard was one of those suspects.
ANDREW MALLARD: I was down on my luck. I was vulnerable. I was living on the streets. I was trying to survive.
COLLEEN EGAN, JOURNALIST AND AUTHOR: He ended up in Graylands Psychiatric Hospital.
ANDREW MALLARD: And then there’s police asking me about a murderer, you know, a murder. What’s going on?
POLICE OFFICER (on police video): The fact is that you told us all these things and you now say that that was a complete pack of lies.
GRACE MALLARD, MOTHER: The next thing we knew, we had a telephone call from a policeman to say they’d arrested Andrew for murder.
COLLEEN EGAN, JOURNALIST AND AUTHOR: As a last resort they came to me, working as a journalist, to try and find fresh evidence. The most damning single piece of evidence was this Sidchrome wrench drawing that he’d done during the unrecorded part of the police interview. And the prosecutor said, ‘With this wrench he killed her.’ And Andrew was very quickly convicted.
ANDREW MALLARD: I was protesting my innocence consistently, continually, because it was the truth!
(End of recap)
COLLEEN EGAN, JOURNALIST AND AUTHOR: In 2002, I’d already been looking at this case for four years. Andrew was getting quite desperate. I was working as a political journalist by that stage for the 'Australian' newspaper and John Quigley had joined with the Labor Party, the backbench of the government. And in my former life as a court reporter, John Quigley was one of the best known and smartest lawyers in town.
JOHN QUIGLEY, WA SHADOW ATTORNEY GENERAL: I became involved in the Mallard case a little bit reluctantly. I was in my first term in Parliament and I was approached by the reporter, Colleen Egan. Colleen had reported on many cases that I'd been involved in when I was representing Western Australian police officers, as I had for about 25 or 30 years been the counsel of choice for the Western Australian Police Union in Perth. So that when I was approached by Colleen Egan to help I was at once surprised, and secondly, a bit wary.
COLLEEN EGAN, JOURNALIST AND AUTHOR: Taking the case to John Quigley was a huge risk, mostly because he had worked for all that time for the police and for the Police Union and we were really worried about what he would do with the information that we gave him. But really, it turned out to be the best thing that we could ever have done. We'd been working on the case for four years and still didn't have a breakthrough, but within months of taking the case to John Quigley, we had breakthroughs. He saw things in the transcript that I didn’t see, because he understood police procedure so well. He could also get access to things that I just couldn’t get access to as a journalist and found that there was evidence, crucial evidence not disclosed at trial that we didn’t know about.
JOHN QUIGLEY, WA SHADOW ATTORNEY GENERAL: I indicated to the Attorney General of the day Mr McGinty that I was about to make a big speech in Parliament. The Attorney General then, perhaps in an effort to avoid such a controversial speech being made, came to an agreement the DPP would lay on the table the whole of their file including their correspondence file, their litigation file. I've never had that offer in 30 years and it was only because I was holding a gun at everyone's head saying I was going to make this big speech in Parliament, that I was given that access. The DPP took me straight to the file and said the prosecutor's brought this file up to me and has marked this page and said ‘This should have been shown to the defence, this should have been shown to the court, and he's looking very ill the prosecutor but you should read it now’. And I was just stunned. I thought ‘what is this page?’ At trial the prosecutor, Mr Bates, had said on over 80 occasions that Andrew Mallard had murdered Pamela Lawrence by beating her about the head by a wrench. Whilst he was speaking those words, he had on his file on bar table, a report which said ‘that they'd done a test on a pig's head which had convinced the pathologist that a wrench could not have inflicted those injuries’. This was crucial evidence in the trial which he'd had all the while which he'd marked, so he'd read and had kept it from the court. This was something that a lawyer should never, ever do.
ANDREW MALLARD: And in fact, in the statement of facts to the prosecution, certain police officers state their concerns that they don't think that I was the murderer anyway. It’s in the statement of the facts to the prosecution.
JOHN QUIGLEY, WA SHADOW ATTORNEY GENERAL: It was as plain as the nose on your face, he couldn’t have been the murderer. He had the most perfect alibi in the world on the crown case. He’d taken a taxi down to Mosman Park near the scene of the murder, didn’t have the money to pay for the taxi and done a runner on the taxi into a block of flats. The taxi driver stood off the block of flats waiting for him to come out and he knew that Andrew Mallard didn’t come out. The murder had happened at this time. This is impossible that Andrew Mallard committed this crime.
GRACE MALLARD, MOTHER: Jacqui and I and Quigley went to the prison to see Andrew, and of course Quigley being an MP got a special room for us.
JOHN QUIGLEY, WA SHADOW ATTORNEY GENERAL: I went in there and I said ‘I know your son’s innocent’. I said, ‘this is not going to get you out tomorrow. This is going to take some years’. So I did something I hadn’t done with a client before. I got him to stand up and I hugged him. And I hugged him as hard as I could and I said, ‘Now look into my eyes.’ I’m looking up at him. I’m saying, ‘Now look into my eyes and tell me you understand what I’m saying. I will never leave you no matter how long it takes you, for the rest of your life, I will never leave you.’
GRACE MALLARD, MOTHER: It was overwhelming, really, you know? That Quigley would do that for us.
ONSCREEN CAPTION: June 2002… WA Attorney General, Jim McGinty, referred Andrew Mallard’s case back to the Supreme Court for a new appeal. Malcolm McCusker QC and Perth legal team Clayton Utz acted for Andrew Mallard without charge.
COLLEEN EGAN, JOURNALIST AND AUTHOR: Once the appeal was on foot, we subpoenaed as many documents as possible from the police files and we found original statements of witnesses just didn’t correspond with the evidence of their second statements, and even third statements that were presented in court. So it really showed a pattern of manipulation of evidence against Andrew Mallard.
ANDREW MALLARD: At this point I’d become quite familiar with the West Australian justice system, or rather, the Western Australian injustice system, and I knew the appeal processes were a waste of time. What are we wasting our time with this appeal for? We should go straight to the High Court of Australia. We’re not going to get anything here in Western Australia.
(Excerpt from ABC News, June 2003)
REPORTER: Andrew Mallard’s family came to court for the first day of his appeal hoping the judges will agree he was wrongfully convicted.
JACQUI MALLARD: I’d just like to say that the wrong man is in jail, that this is an injustice.
(End of excerpt)
KATIE KINGDON, PAMELA LAWRENCE’S DAUGHTER: I never had any anger towards Andrew’s family but the team of people that were helping him, I felt like they must have their own agendas. I just didn’t understand how they could be putting us through more turmoil and more grief and prolonging the ordeal we were going through. We had high profile people from the police and prosecution that were still confident they had the right person.
(Excerpt of ABC News, June 2003)
REPORTER: It was claimed Mallard hit the mother of two with a wrench and drew a picture of the weapon for the police. Today defence lawyer Malcolm McCusker QC said his client provided the drawing after being stripped naked and beaten by police.
(End of excerpt)
ONSCREEN CAPTION: December 2003. The WA Supreme Court dismissed Andrew Mallard’s appeal. The Court found the new evidence did not alter the case against him.
GRACE MALLARD, MOTHER: I was just numb. ‘Numb’ is the word. I shut down I think. I'm not a person that shows a lot of emotion. I just shut down, the same as when Roy died. I shut down.
COLLEEN EGAN, JOURNALIST AND AUTHOR: I will still never understand and really never forgive the Supreme Court for not delivering justice to one of their own citizens. John Quigley, he's a politician and he had put himself out there. He alienated himself from the police who he represented for 25 years and he was out on a limb and the Supreme Court just chopped that limb off.
JOHN QUIGLEY, WA SHADOW ATTORNEY GENERAL: And the union absolutely hated me and turned on me and wanted to destroy me. And the Police Union are still trying to destroy me, to this very day, over my advocacy for Andrew Mallard. Apart from my wife, even my own extended family would all criticise me and said that I’d lost my marbles.
COLLEEN EGAN, JOURNALIST AND AUTHOR: I was working as a weekly columnist in the Sunday Times and I found my credibility was getting questioned because I was seen to have put my reputation on the line for this murderer.
ANDREW MALLARD: To me it was no surprise. So I wasn’t at this point now, I’m seasoned, hardened, but not a criminal, but not a criminal. I’m quite, failed, okay, High Court now. That’ll be fine.
ONSCREEN CAPTION: November 2005… The High Court quashed Andrew Mallard’s conviction and ordered a retrial.
JOHN QUIGLEY, WA SHADOW ATTORNEY GENERAL: Here’s a man that’s been in jail now for 11 years and the High Court has said it is because the police and prosecution suppressed evidence. Detective Sergeant Shervill and Detective Constable Caporn are now of course, Assistant Commissioners who sit around the command table. Anything in the brief that didn’t fit with their theory that Mallard was the murderer, they simply went back to a witness and got them to change a statement.
KARL O’CALLAGHAN, WA POLICE COMMISSIONER: One of the first things I did was refer the matter to the Corruption and Crime Commission for investigation. We potentially had two very senior police officers who may have done something wrong. There were other public officers involved in this particular prosecution and the only way the public, I think, could have been assured that independent review of the conduct of those officers was made, was that a Corruption and Crime Commission would do that.
ONSCREEN CAPTION: February 2006…the DPP, Robert Cock QC, dropped the case as some evidence was no longer admissible. But, he announced, Andrew Mallard remained the prime suspect.
JOHN QUIGLEY, WA SHADOW ATTORNEY GENERAL: This meant that Andrew Mallard was to be released after 12 and half years for murder, after it having been announced to all of Western Australia that the DPP and the police still regarded him as the prime suspect.
COLLEEN EGAN, JOURNALIST AND AUTHOR: I was so angry. Everybody was furious. They still would not admit that they got it wrong. After 12 years Andrew was finally getting out of jail, but they still had to just dig it in and claim that he was still guilty.
KATIE KINGDON, PAMELA LAWRENCE’S DAUGHTER: The day that Andrew was released was a very difficult day for our family, because at that stage we still believed that he was guilty. I was terrified at the thought of him being released and being out there walking around in Perth, that we might bump into him. I didn’t know how he’d react. I was really scared at that thought.
(Excerpt of Andrew Mallard’s talking to press on his day of release)
ANDREW MALLARD (to the press, February 2006): I just want a good night’s sleep, free from officers viewing me in the port, and keys jangling and all that sort of thing. I just want to be able to sleep in peace.
(End of excerpt)
ANDREW MALLARD: People think ‘oh you're released from prison, everything's hunky dory’. No, not the case at all. I've had three years, nearly four years, of psychotherapy to deal with post-traumatic stress. If someone is found innocent after they've been wrongfully convicted, there's no provision in the system for that. You're just spat out, you're spat out of the belly of the beast, so to speak, and left to fend for yourself. I was released with $50 in my pocket which was a gratuity payment from the prison system. I had no clothing except for what I was wearing. My shoes had been in storage that long that the heels crumbled when I was walked. I was 12 years of limbo. So when I came out, I had to re-learn how to interact and socialise and interact with people. When I was first released I used to have tremendous panic attacks. And you have to remember I was called a prime suspect at that time too, so people used to give me a wide berth anyway. At one point, I was locked out of a shop. I felt the uneasiness and I went and sat on the table outside. Nice day, and I’m sitting there and I can hear the phone call going on and something and then I hear the bolt of the doors locking in the shop. So I just finished my drink and enjoyed the sunshine got on my bike and rode away.
COLLEEN EGAN, JOURNALIST AND AUTHOR: And Andrew would have lived for the rest of his life with this hanging over his head, so myself in the newspaper, John Quigley in the parliament, Malcolm McCusker in press conferences, really put a lot of pressure on the police service to have another look at this case, and they finally agreed to do a cold case review.
KARL O’CALLAGHAN, WA POLICE COMMISSIONER: : I went in there with a completely open mind. I wanted an objective inquiry conducted by the officers who had no connection with the original case, using modern technologies that are available to them and using more modern methods of investigation. I was just searching for the truth.
(Excerpt from ABC News, April 2006)
REPORTER: Police have enlisted the help of British expert, David Barclay, who was also involved in a cold case review of the Claremont serial killings.
DAVID BARCLAY: The Physical review looks at everything possible that we could get from all of the items and then tries to map them across on to all the scenarios and all the people.
KARL O’CALLAGHAN, WA POLICE COMMISSIONER (voiceover): This person was very experienced at looking at cold case murder cases and called for every item of evidence and every scrap of paper.
REPORTER: New digital technology has matched a palm print found on a glass cabinet in her Mosman Park jewellery store, to a man currently in jail for another violent crime, believed to be a murder.
ASSISTANT COMMISSIONER DAWSON: It is a new development. It is a significant development.
(End of excerpt)
JOHN QUIGLEY, WA SHADOW ATTORNEY GENERAL: The palm print that the cold case reviewer was shown led him to Simon Rochford, who was serving life for the murder of his girlfriend whom he had murdered, but seven short weeks after the murder of Pamela Lawrence.
COLLEEN EGAN, JOURNALIST AND AUTHOR: Significantly, both women had identical injuries in their heads and it was caused not by a Sidchrome wrench, but by a very strange and makeshift instrument that Simon Rochford had made and then used to kill both women.
JOHN QUIGLEY, WA SHADOW ATTORNEY GENERAL: Moreover, Dr Cooke during the autopsy of the late Pamela Lawrence, had recovered from her head some shavings of blue paint and no one knew where this blue paint had come from. But it was an exact match to fragments of blue paint still in Simon Rochford's knapsack that the police still had after all these years. The knapsack in which he'd kept the murder weapon.
ONSCREEN CAPTION: May 2006. Within days of being questioned by police about the murder of Pamela Lawrence, Simon Rochford committed suicide in Albany Prison.
(Excerpt from ABC News, October 2006)
REPORTER: Today the release of a cold case review, finding the 44 year old had played no part in the 1994 murder of Pamela Lawrence.
KARL O’CALLAGHAN, WA POLICE COMMISSIONER: : Mr Mallard spent 12 years in prison for a crime, we think he didn’t commit. He’s no longer a person of interest and I’ve apologised to him for any part the WA Police may have played in that.
(End of Excerpt)
KATIE KINGDON, PAMELA LAWRENCE’S DAUGHTER: I think I was just in shock. I just never expected this to happen. I really did have faith in the justice system until all of this happened. The last thing any of us would have wanted, especially the last thing mum would have wanted, was for the wrong person to be punished over her death and for another family to have to be put through such an unbelievable ordeal.
ONSCREEN CAPTION: October 2008. The Corruption and Crime Commission (CCC) completed its inquiry into alleged misconduct by public officers.
(Excerpt from ABC News, October 2008)
REPORTER: After 83 days of public and private hearings, up to a dozen public officers were facing possible adverse findings. But in the final report today, only three of them were identified as having engaged in misconduct. The CCC has recommended disciplinary action against Assistant Commissioners Mal Shervill and Dave Caporn and Senior DPP lawyer, Ken Bates.
(End of excerpt)
 
KATIE KINGDON, PAMELA LAWRENCE’S DAUGHTER: The findings of the CCC inquiry shocked me. I really just didn’t know what to think. Mal Shervill was so kind and so warm to our family, that for him to have adverse findings made against him was very confusing and has been really hard to accept.
 
KARL O’CALLAGHAN, WA POLICE COMMISSIONER: : When the report from the Corruption and Crime Commission was handed down, my immediate response as Commissioner of Police was to serve these two officers with a loss of confidence notice. I was actually prevented from going any further with that, because I received legal advice from the State Solicitor’s office that I was not allowed to take notice of the Corruption and Crime Commission’s report, and I had to conduct my own separate investigation, notwithstanding that this investigation had been conducted by a learned judge over a long period of time. Now the difficulty there is, that while I was investigating both of these officers for misconduct, they resigned from the WA police and I had no power to take that investigation any further.
(Excerpt from ABC News, July 2009)

REPORTER: Mr Bates was asked to step down by the Director of Public Prosecutions, Robert Cock, QC. Mr Bates was one of three people whom the CCC criticised over the Mallard case and all have now avoided the public service disciplinary process.

(End of excerpt)
ANDREW MALLARD: These people need to be made accountable for their actions. In my view there was a conspiracy to pervert the course of justice. This is a crime. Why should these people be above the law? Is this a democracy or a fascist state, I ask you?
 
COLLEEN EGAN, JOURNALIST AND AUTHOR: Well really when you look back at it, they may as well have taken that $5 million that they spent on the inquiry and just given it to Andrew. Because he doesn’t feel like he’s got justice now and I can’t blame him. Each of them were allowed to leave with all of their entitlements, and while they have gone through the suffering of their reputations and I recognise that that is punishment for them, they haven't been made to face the consequences in the way that Andrew certainly would like to see.
 
KARL O’CALLAGHAN, WA POLICE COMMISSIONER: : The most frustrating thing is there was no outcome for Andrew Mallard. There was no positive outcome for the WA Police either because we were never able to bring it to a resolution in a way that would have boosted the community’s confidence in what we do.
 
JOHN QUIGLEY, WA SHADOW ATTORNEY GENERAL: When I was first studying the case, I jumped on my motorbike and rode down to what was Flora Metallica which is now a pizza shop, dismounted, got off and sat outside the shop just trying to absorb the scene. And I thought, a murder could not happen here and a murderer get away without being seen. But there was no a hint of anyone having seen it. Therefore, I was very surprised during the CCC inquiry to hear the evidence come out that there was, in fact a chap by the name of Lloyd Harvey Peirce who was living in a nearby flat when he observed a man running at speed from the back of Flora Metallica, across Stirling Highway. And a taxis coming and he’s put his hands on the bonnet of the taxi and Peirce, who’s up on this balcony here, has drawn the face of the person who put his hands on the bonnet of the taxi. Incredible isn’t it, and then kept that drawing on the reverse side of the painting he was doing.
 
COLLEEN EGAN, JOURNALIST AND AUTHOR: But when he went to tell the police about this, the police actually treated him like a suspect and acted in a very heavy handed manner with him, and so his evidence was really lost to the investigation.
 
JOHN QUIGLEY, WA SHADOW ATTORNEY GENERAL: The policeman that came to see him was none other than Caporn and he didn’t come just to interview him, he came with a search warrant to roll him! Once Mr Peirce realizes how he’s being treated by Caporn he doesn’t say anything to Caporn. During the cold case review, they went back through all of the contacts and they came up with this chap’s name so they went and re-interviewed him. They went and chased up the picture and there was a drawing bearing a marked similarity to Simon Rochford. Another woman’s life in all likelihood would have been saved.
 
ANDREW MALLARD: Had the police done their job properly from the beginning I would have been eliminated as a suspect. They would probably, or likely have arrested Rochford before he killed his girlfriend. So they're responsible for another death.
 
KARL O’CALLAGHAN, WA POLICE COMMISSIONER: : I think what the community can take comfort from is that procedures have changed immeasurably since the time that Andrew Mallard was investigated and since I've been commissioner, we've invested many millions of dollars in improving investigative techniques and investigative procedures, in trying to get to a position where this sort of thing can't happen, or it is very, very difficult for such a thing to happen again in Western Australia.
 
KATIE KINGDON, PAMELA LAWRENCE’S DAUGHTER: I have enormous regrets at how long it took me to realize that Andrew was innocent. I really want people to know that my family believe Andrew's innocent, 100 per cent, and we have nothing but regret for what he's been put through and what his family and his supporters have gone through, and if it wasn't for them, I don't think we'd have ever of known the truth.
 
ANDREW MALLARD: I've recently graduated from Curtin University in a BA in Fine Art. The only reason I remained in Perth as long as I did was to graduate. So I'm moving off to London to start a Masters in Fine Art. There's nothing here for me now. What certain police have done to me and certain members of the DPP have done to me and my family, have made living in Perth untenable, completely, absolutely.
 
COLLEEN EGAN, JOURNALIST AND AUTHOR: I really hope the next time that a vulnerable young man like Andrew Mallard becomes in the sights of a tunnel-visioned detective or two, that people think twice.
 
END CAPTIONS:

Andrew Mallard has received $3.25 million compensation from the State Government.
He’s awaiting an opinion from a leading interstate QC which could lay the ground for perversion of justice charges against officers involved in his wrongful conviction.
 

The family of Pamela Lawrence say they are shocked and deeply saddened by the death of Andrew Mallard.

They say their only solace is that he did regain his freedom and lived to see his name cleared. 

 "Mallard advised 'not to accept less than $7.5m': Quigley | The West Australian" https://thewest.com.au/news/wa/mallard-advised-not-to-accept-less-than-75m-quigley-ng-ya-250850.amp

 

Mallard advised 'not to accept less than $7.5m': Quigley

The West Australian - Tue, 11 August 2009 

Andrew Mallard, wrongfully convicted of the 1994 murder of Perth jeweller Pamela Lawrence, decided to fight to clear his name after he was taken to a psychiatric hospital, put in a straitjacket and injected with drugs.

Mr Mallard - who is demanding compensation from the State Government after serving 12 years in prison for the murder - "snapped" when he realised he could die in custody, WA shadow attorney-general John Quigley said.

Mr Quigley, who joined Perth journalist Colleen Egan in 2002 in lobbying for Mr Mallard's release, said Mr Mallard committed to his own protest of strict silence after the failure of early appeals against his 1995 conviction.

He said his refusal to speak or receive visits had led to him being taken to Perth's Graylands Psychiatric Hospital in 1999 for treatment aimed at breaking him down.

"He was shipped up to Graylands where they used to inject him with drugs," Mr Quigley said.

"I don't know what sort of drugs they were, but he told me when I met up with him that while he was in Graylands, being injected, that he caught a glimpse of himself in a stainless steel mirror.

"He was straitjacketed at the time, he'd been injected and he had frothy goo dribbling off his chin."

Mr Quigley said Mr Mallard broke his self-imposed code of silence when he saw his reflection.

"At that moment it snapped inside his brain that ‘unless I start trying to get some help I'm going to die in here'," Mr Quigley said.

"He started receiving visits from his mother, who contacted Colleen Egan, who was then producing for Today Tonight.

"If he had admitted his guilt, that would have been the end of the story."

Mr Quigley said he had been reluctant to help Mr Mallard, as it meant taking on "the system".

"But I was left with little choice when I realised he was innocent," he said.

"He was a citizen of WA coming to the last bastion of democracy (parliament)."

Mr Quigley said he did not believe medical authorities were responsible for any mistreatment of Mr Mallard, and that Graylands hospital personnel had simply been acting at the behest of police and other authorities.

He said Mr Mallard was yet to reveal this and other incidents during his time in custody because of warnings from the Attorney-General's department.

"The Attorney-General has sought to gag him by saying that Andrew is not to discuss anything during the period of negotiation, otherwise he will pull out of the negotiations," Mr Quigley said.

He said Mr Mallard, who served 12 years of a 20-year sentence before his conviction was quashed by the High Court in 2005, had legal advice not to accept anything less than $7.5 million in compensation.

If the WA Government failed to match that amount, Mr Mallard would simply pursue the Supreme Court writ he had already lodged against 17 defendants, Mr Quigley said.

These include eight police officers, the Government, police commissioner, the chief forensic pathologist, a chemist and a psychiatrist.

"If the Government offers less we would intend to just let the civil action continue against the police and the prosecutor," he said.

Attorney-General Christian Porter today declined to comment on the matter.

A recent inquiry by retired NSW judge John Dunford QC found that two assistant police commissioners, Mal Shervill and David Caporn, then detective sergeants, caused witnesses to change their statements in the Mallard case.

Mr Shervill was also found to have changed police records.

PERTH AAP

"Police bungle may have cost another life"

 https://amp.watoday.com.au/national/western-australia/police-bungle-may-have-cost-another-life-20101003-162dg.html

October 3, 2010 
 

Police misconduct that led to the wrong man being jailed for nearly 12 years on a murder charge may have allowed the real murderer to kill again.

West Australian Andrew Mallard was convicted in 1995 of killing Pamela Lawrence, who was bludgeoned to death at her central Perth jewellery shop.

In 2006, Mr Mallard was released from jail after the Australian High Court quashed his conviction after it deemed the only evidence linking him to the crime were his ''bizarre and fanciful statements'' to police.

The court noted that only one of the police interviews was recorded and another was conducted while Mr Mallard was a patient at a mental hospital.

A cold case review of Ms Lawrence's murder found a previously unidentified bloodied palm print at the crime scene belonged to Simon Rochford.

Rochford killed his girlfriend nearly six weeks after Ms Lawrence's murder.

He committed suicide in jail in 2006 within days of being questioned over Ms Lawrence's death, after the new evidence emerged. He is now the chief suspect.

WA's Corruption and Crime Commission (CCC) recommended disciplinary action against WA Police Assistant Commissioners Mal Shervill and Dave Caporn, who investigated the case as detectives in 1995.

The CCC also recommended disciplinary action against senior Director of Public Prosecutions lawyer Ken Bates.

But all three officers resigned and so avoided the public service disciplinary process.

Mr Mallard has told ABC's Australian Story program that the officers need to be made accountable for their actions and he believed there was a conspiracy to pervert the course of justice.

''Had the police done their job properly from the beginning, I would have been eliminated as a suspect.

"They would probably or likely have arrested Rochford before he killed his girlfriend. So they're responsible for another death,'' Mr Mallard said.

WA's shadow attorney-general John Quigley, who as a lawyer helped expose Mr Mallard's wrongful conviction along with journalist and author Colleen Egan, agrees a second murder could have been prevented.

''Another woman's life in all likelihood would have been saved.''

Mr Quigley said the prosecutor, Mr Bates, had repeatedly said that Mr Mallard murdered Ms Lawrence by beating her about the head with a wrench.

But at the same time he had a report which said a test done on a pig's head had convinced the pathologist that a wrench could not have inflicted Ms Lawrence's injuries, Mr Quigley said.

He said this was crucial evidence Mr Bates wrongly kept from the court.

WA Police Commissioner Karl O'Callaghan said it was frustrating there had been no outcome for Mr Mallard.

''There was no positive outcome for the WA Police either because we were never able to bring it to a resolution in a way that would have boosted the community's confidence in what we do.''

 

Mr Mallard was awarded $3.25 million in compensation by the WA government and is moving to London to start a Masters degree in Fine Art.

The second part of Australian Story's two-part program The Wronged Man will air on ABC1 on Monday at 8pm.

AAP

Andrew Mallard death: A WA man’s 12-year fight for justice and freedom | The West Australian

"Andrew Mallard death: A WA man’s 12-year fight for justice and freedom | The West Australian" https://thewest.com.au/news/wa/andrew-mallard-death-a-wa-mans-12-year-fight-for-justice-and-freedom-ng-b881173914z.amp

Andrew Mallard death: A WA man’s 12-year fight for justice and freedom

Rhianna MitchellThe West Australian - Sat, 20 April 2019 
Andrew Mallard, walks free after he was wrongly convicted of murder.
Andrew Mallard, walks free after he was wrongly convicted of murder
 

“I am an innocent man ... you have not heard the last of this.”

With those words, a then 33-year-old Andrew Mark Mallard was led from the dock of the Supreme Court in Perth towards a life sentence for a murder he did not commit.

 

It was far from the last the WA legal system would hear from this vulnerable “drifter”, who suffered from mental illness, and who had been wrongly convicted of murdering Mosman Park jewellery store owner Pamela Lawrence.

In fact, it was just the beginning. More than 10 years of legal appeals — during which sensational claims of withheld evidence, police corruption and bias in the judicial system and the media were aired — would follow before Mr Mallard would walk out of Casuarina Prison, exonerated.

 
Mallard family, including Andrew Mallard (far right)
Mallard family, including Andrew Mallard (far right) Credit: Supplied

Mr Mallard’s 12-year fight to clear his name, aided by his family and a high-profile team including then Labor MLA John Quigley, Malcolm McCusker and journalist Colleen Egan, would rock WA’s justice system.

British-born Mr Mallard, who lived in Mosman Park, was a petty thief with a marijuana habit who was prone to telling far-fetched stories.

The day before Mrs Lawrence was found dead, Mr Mallard was charged over a burglary and impersonating a police officer, relating to a tale he spun in various forms which involved him being a police informant acting as an undercover drug agent.

Mr Mallard was also, according to a psychiatrist who later testified at his pre-trial hearing, in the manic stage of a bipolar mood disorder.

Surveillance photos of Andrew Mallard with shaved head and tartan kilt in June 1994
Surveillance photos of Andrew Mallard with shaved head and tartan kilt in June 1994 Credit: Supplied

Pamela Lawrence, a wife and mother of two daughters, was a popular jeweller who established her business Flora Metallica on Glyde Street in 1973.

Her body was found by her husband Peter on May 23, 1994, in the midst of a huge storm which had swept across the western suburbs.

Police said Mrs Lawrence had been hit with an object at least 12 times. Their investigations led them to Graylands Hospital two days later, where Mr Mallard had been admitted after an unrelated minor court appearance.

Mr Mallard was interviewed a number of times, offering several different alibis. Later, he confessed to the killing and mentioned a potential murder weapon — a wrench — but then retracted it, claiming it was only his theory of what had happened.

Mr Mallard was charged with the wilful murder of Mrs Lawrence on July 19, 2004. He entered a plea of not guilty. In a Supreme Court trial which started on November 2, 1995, Mr Mallard was successfully prosecuted on the strength of his “confession” — unsigned, handwritten notes by police and a 20-minute videotaped interview on his theory as to what had happened.

During the trial he claimed detectives had fabricated parts of the interviews they related to the court, and had harassed, intimidated, beaten and threatened to shoot him as they interrogated him.

On November 15 a jury found Mr Mallard guilty. Five weeks later he was sentenced to life in jail, with a minimum of 20 years. In the moments after his son had proclaimed his innocence as he was led from the dock, Roy Mallard vowed outside court the family would not give up until their son and brother was exonerated.

Murder victim Pamela Lawrence.
Murder victim Pamela Lawrence. Credit: Supplied

“Andrew was convicted on unsigned and unseen statements written by the police,” he said. “There are so many holes in the case it’s not funny.”

So began the decade-long battle to free Mallard. His father would not live to see its conclusion, as he died from cancer in 1998, leaving his wife Grace and daughter Jacqui to continue the fight. They endured setback after setback, including an unsuccessful appeal to the Court of Criminal Appeal in 1996 and a failed High Court bid the year after.

A breakthrough finally came in 2002 when a new team of volunteers — led by Mr Quigley, now WA’s Attorney-General, Mr McCusker and Egan — served a petition to then attorney-general Jim McGinty, asking that the case be again referred to the Court of Criminal Appeal.

The petition contained new forensic evidence which was not disclosed in the trial — testing done by a forensic pathologist which found it was not possible for Mrs Lawrence’s wounds to have been caused by the wrench Mr Mallard described as the murder weapon.

It was also found police had not disclosed all witness statements to the defence and had retyped some statements to exclude matters favourable to Mr Mallard.

Mr McGinty agreed, but the Mallards’ joy was short-lived. The Court of Criminal Appeal rejected the bid. The group persevered and lodged an appeal to the High Court in 2003. Almost two years later, Mr Mallard’s conviction was quashed in a 5-0 judgment. Three months later, on February 20, 2006, Mr Mallard, 43, finally walked free from prison after 12 years.

Accompanied by his mother and sister, Mr Mallard said he was looking forward to a good night’s sleep without the rattle of guards’ keys to keep him awake.

Murderer Simon Rochford killed himself in Albany Regional Prison a day after he was questioned about the murder of Pamela Lawrence in 1994.
Murderer Simon Rochford killed himself in Albany Regional Prison a day after he was questioned about the murder of Pamela Lawrence in 1994. Credit: Supplied

He still had the threat of a retrial hanging over him but that disappeared when a new suspect emerged in May of that year. It was revealed convicted murderer Simon Rochford’s palm print had been found in Mrs Lawrence’s store, but before any investigation could proceed Rochford was found dead, of apparent suicide, in Albany Prison the next day.

It would be another three years — during which a Corruption and Crime Commission inquiry delivered misconduct findings against two police assistant commissioners and a senior prosecutor — before the Mallard case drew to a close. A decade ago, on May 5, 2009, the State Government offered Mr Mallard a $3.25 million ex gratia payment.

He pledged to spend it on his mother and sister and rebuilding his life. “I want to be like everybody else. I want to have a wife and a family and to provide for my family through my own efforts,” he said.

On completing his fine arts degree at Curtin University, Mr Mallard left WA for Britain, where he planned to continue his studies, in August 2010. It appears he had finally found the happiness he sought when his life was tragically cut short this week.

 "Mallard advised 'not to accept less than $7.5m': Quigley | The West Australian" https://thewest.com.au/news/wa/mallard-advised-not-to-accept-less-than-75m-quigley-ng-ya-250850.amp

Andrew Mallard advised 'not to accept less than $7.5m': Quigley

The West Australian Yue, 11 August 2009 
 

Andrew Mallard, wrongfully convicted of the 1994 murder of Perth jeweller Pamela Lawrence, decided to fight to clear his name after he was taken to a psychiatric hospital, put in a straitjacket and injected with drugs.

Mr Mallard - who is demanding compensation from the State Government after serving 12 years in prison for the murder - "snapped" when he realised he could die in custody, WA shadow attorney-general John Quigley said.

Mr Quigley, who joined Perth journalist Colleen Egan in 2002 in lobbying for Mr Mallard's release, said Mr Mallard committed to his own protest of strict silence after the failure of early appeals against his 1995 conviction.

 

He said his refusal to speak or receive visits had led to him being taken to Perth's Graylands Psychiatric Hospital in 1999 for treatment aimed at breaking him down.

"He was shipped up to Graylands where they used to inject him with drugs," Mr Quigley said.

 

"I don't know what sort of drugs they were, but he told me when I met up with him that while he was in Graylands, being injected, that he caught a glimpse of himself in a stainless steel mirror.

"He was straitjacketed at the time, he'd been injected and he had frothy goo dribbling off his chin."

Mr Quigley said Mr Mallard broke his self-imposed code of silence when he saw his reflection.

"At that moment it snapped inside his brain that ‘unless I start trying to get some help I'm going to die in here'," Mr Quigley said.

"He started receiving visits from his mother, who contacted Colleen Egan, who was then producing for Today Tonight.

"If he had admitted his guilt, that would have been the end of the story."

Mr Quigley said he had been reluctant to help Mr Mallard, as it meant taking on "the system".

"But I was left with little choice when I realised he was innocent," he said.

"He was a citizen of WA coming to the last bastion of democracy (parliament)."

Mr Quigley said he did not believe medical authorities were responsible for any mistreatment of Mr Mallard, and that Graylands hospital personnel had simply been acting at the behest of police and other authorities.

He said Mr Mallard was yet to reveal this and other incidents during his time in custody because of warnings from the Attorney-General's department.

"The Attorney-General has sought to gag him by saying that Andrew is not to discuss anything during the period of negotiation, otherwise he will pull out of the negotiations," Mr Quigley said.

He said Mr Mallard, who served 12 years of a 20-year sentence before his conviction was quashed by the High Court in 2005, had legal advice not to accept anything less than $7.5 million in compensation.

If the WA Government failed to match that amount, Mr Mallard would simply pursue the Supreme Court writ he had already lodged against 17 defendants, Mr Quigley said.

These include eight police officers, the Government, police commissioner, the chief forensic pathologist, a chemist and a psychiatrist.

"If the Government offers less we would intend to just let the civil action continue against the police and the prosecutor," he said.

Attorney-General Christian Porter today declined to comment on the matter.

A recent inquiry by retired NSW judge John Dunford QC found that two assistant police commissioners, Mal Shervill and David Caporn, then detective sergeants, caused witnesses to change their statements in the Mallard case.

Mr Shervill was also found to have changed police records.

PERTH AAP

 http://www.austlii.edu.au/au/cases/cth/HCA/2005/68.html

 

Networked Knowledge Law Reports

Mallard v The Queen [2005] HCA 68; (2005) 224 CLR 125; (2005) 222 ALR 236; (2005) 80 ALJR 160

[This version of the judgment has been prepared by: Dr Robert N Moles and Bibi Sangha Underlining where it occurs is for editorial emphasis]

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15 November 2005 - High Court of Australia

<class="link">External link to full text of Mallard v The Queen

Gummow, Hayne, Callinan and Heydon JJ

Mallard was convicted of the murder of Mrs Lawrence, the proprietor of a jewellery shop, at Perth on 23 May 1994. He unsuccessfully appealed. After he had served 8 years of his sentence of life imprisonment in strict security, he petitioned for clemency. The Attorney-General for Western Australia referred the petition to the Court of Criminal Appeal which dismissed the appeal.

The importance of the Petition procedure declined, after the introduction of the Criminal Appeal Act 1907 (UK) to establish the Court of Criminal Appeal, although no attempt was made to abolish it. It proved fortunate that this was so because there was, initially at least, a judicial reluctance to allow appeals in criminal cases, occasioned in part no doubt by the sanctity accorded, and usually desirably so, to the verdict of a jury, and less desirably, to the legal conservatism of some of the judiciary of the day.

The provision with which the Court is concerned in this case is similar in substance to provisions in other States.

The exercise of the Crown prerogative is necessarily undertaken by officials and members of the Executive, unconfined by any rules or laws of evidence, procedure, and appellate conventions and restrictions. The history, briefly stated, argues in favour of an approach by the court (on a reference) of a full review of all the admissible relevant evidence available in the case. This is whether the evidence is new, fresh or already considered in earlier proceedings.

The proper approach

On the appeal, the judges thought that they were not to reconsider evidence which has been dealt with at trial. Much was made of the difference between "new evidence", that is, evidence available but not adduced at trial, and "fresh evidence", which appellate courts ordinarily will receive, on the basis that it did not then exist, or, if it did, could not then have been discovered with reasonable diligence. They then proceeded as if there were serious inhibitions upon that Court's jurisdiction to consider, not just the evidence that was adduced at the trial, but also its relevance to the further evidence that Mallard sought to introduce and rely upon in the reference.

It seems to us that the approach was an erroneous one. The explicit reference to "the whole case" conveys no hint of any inhibition upon the jurisdiction of the Court of Criminal Appeal on a reference. The words embrace the whole of the evidence properly admissible, whether "new", "fresh" or previously adduced. That does not mean that the Court may not, if it think it useful, derive assistance from the way in which a previous appellate court has dealt with some, or all of the matters before it, but under no circumstances can it relieve it of its statutory duty to deal with the whole case. The history, as we have already mentioned, points in the same direction. The effect of the words "as if it were an appeal" are merely to confine the Court to the making of orders, and the following of procedures apposite to an appeal, and whether the overall strength of the prosecution case requires the Court to apply the proviso.

This construction is consistent with the approach of Toohey and Gaudron JJ (Mason CJ and Brennan J agreeing) in Mickelberg v The Queen

"The words so far as they require 'the whole case ... [to] be heard and determined', permit of only one meaning. It is the whole case which must be passed upon by the application of legal principles appropriate to criminal appeals. That being so, the power to exclude matters from consideration is properly to be seen as an aspect of the inherent power of a court to control its own proceedings. That power will authorize the exclusion of issues which are frivolous or vexatious. However, subject to an issue being properly excluded as frivolous or vexatious, it is, in our view, the duty of a court to which there has been a reference of the whole case to pronounce upon the whole case as presented."

It is also consistent with the construction adopted by Lord Diplock in R v Chard of like language of the Criminal Appeal Act 1968 (UK):

"In my view, which I understand is shared by all your Lordships, the words of paragraph (a) of subsection (1) in their natural and ordinary meaning are free from any trace of ambiguity; the person whose case which resulted in his conviction is the subject matter of the reference is to be treated for all purposes as if he were a person upon whom there is conferred by section 1 of the Criminal Appeal Act 1968 a general right of appeal to the Court of Appeal on any ground which he wishes to rely (whether it be of law or fact or mixed law and fact), without need to obtain the prior leave of that court.

Since it is the 'whole case' that is referred, this must include all questions of fact and law involved in it ..." (emphasis added)

It follows that in proceeding as it did, the Court of Criminal Appeal erred in law. The question remains whether that error induced or caused a miscarriage of justice, the same question as would exercise the mind of the Executive were it to deal with a petition rather than refer it to the Court of Criminal Appeal for determination. The answer to that question may only be given after a consideration of the facts, not only as they emerged at the trial, but also as they emerged in the Court of Criminal Appeal, no matter what descriptive term the evidence adduced there might be given. It is elementary that some matters may assume an entirely different complexion in the light of other matters and facts either ignored or previously unknown.

Facts

Mrs Lawrence was alone in her shop when she was violently assaulted with a heavy instrument which has never been found. The assault occurred in the late afternoon. She was discovered, barely alive, but terminally injured, in a pool of her own blood, by her husband. Mallard had, on a previous occasion or occasions, been in the shop. He was a user of marijuana. Earlier on the day of the assault, he had been briefly in the custody of police officers. Following the death he was repeatedly interviewed by police officers, both while he was in hospital for the treatment of mental infirmity, and elsewhere. Only one of the interviews was recorded. During the interviews he made some highly fanciful, indeed incredible assertions and claims, as well as apparently inculpatory, confessional statements.

Some witnesses at the trial, with varying degrees of credibility, swore that they had seen Mallard in or about the shop at or about the time of the murder. It is sufficient for immediate purposes to say, that the whole of the evidence at the trial, including that of Mallard, despite conflicts in it, was sufficient to sustain a verdict of guilty.

On the reference however, further evidence was adduced. It also became apparent that a deal of it had been in the possession of investigating police before, and during the trial, and had not then been disclosed to Mallard. (Whether any of it was in the possession of the Director of Public Prosecutions is a question that is unnecessary to investigate.)  Some, at least, of that evidence, the respondent concedes should have been disclosed pursuant to the Prosecution Guidelines.

Disclosure of Crown Case

The Crown has a general duty to disclose the case in-chief for the prosecution to the defence.

Normally full disclosure of all relevant evidence will occur unless in exceptional circumstances full disclosure prior to the trial will undermine the administration of justice, or when such disclosure may endanger the life or safety of a witness.

Disclosure of Information to the Defence

When information which may be exculpatory comes to the attention of a prosecutor and the prosecutor does not intend adducing that evidence, the prosecutor will disclose to the defence –
(a) the nature of the information;
(b) the identity of the person who possesses it; and
(c) when known, the whereabouts of the person.
These details should be disclosed in good time.

At this point it is relevant to note that the recent case of Grey v The Queen in this Court stands as authority for the proposition that the prosecution must at common law also disclose all relevant evidence to an accused, and that a failure to do so may, in some circumstances, require the quashing of a verdict of guilty. As will appear, the evidence which was not produced before or at this trial, was certainly no less cogent than the evidence which was not disclosed in Grey.

Some of the further evidence related to the alleged murder weapon. In one interview, Mallard was asked what the assailant's weapon was. He replied, "A wrench". Mallard was asked to, and did draw a wrench, with the word "Sidchrome" on it. That drawing was an exhibit of which much was made at the trial. The deceased's husband said in evidence, with little conviction, that he thought that there may have been a Sidchrome spanner missing from a shed which his late wife used as a workshop behind the shop. The respondent had stressed both in opening and closing the prosecution case at the trial that the wrench drawn by Mallard was the murder weapon.

When Mallard gave evidence he denied that he had told the police that Mrs Lawrence had been killed with a wrench. He said that his sketch of the wrench was:

"a sketch of a supposed weapon that we were talking about in our theory which I said was a gas wrench to be used on acetylene equipment. I have no idea what a gas wrench looks like. That is what I assumed it would look like in my theory."

There was in fact no acetylene equipment in the workshop.

During the reference a number of contradictory facts were brought out for the first time and highlighted. These included that experiments had been done on behalf of the respondent with a crescent-shaped wrench of the kind said to be the murder weapon. The experiments conducted by a forensic pathologist and police officers, included the striking with a copper anode (of the kind kept in Mrs Lawrence's workshop), and a wrench, of a pig's head in an attempt, unsuccessful, to replicate Mrs Lawrence's wounds.

Other facts relevant to the nature of the murder weapon are these. Residues of rust and Prussian Blue pigment had been found in Mrs Lawrence's wounds. The composition of Sidchrome wrenches is such that they rarely rust. Sidchrome spanners were sold unpainted. A layer of blue paint from a forklift located near the deceased's premises did contain Prussian Blue pigment. The forensic pathologist who undertook the experiment said that a wrench could not have caused many of the injuries because it would cause blunt, crushing-type injuries rather than the cuts and lacerations suffered by Mrs Lawrence. He had examined a variety of tools, including spanners, in a friend's workshop and had been unable to find one capable of matching the wounds sustained by Mrs Lawrence. Similarly, two investigating police officers, Detectives Brandon and Carter, had attempted without success to locate a wrench which would be likely to produce wounds similar to those inflicted on the scalp of Mrs Lawrence. In 2002, at the request of those acting on behalf of Mallard, the pathologist, Dr Cooke, performed a further experiment with a pig's head, using a Sidchrome spanner supplied to him, and again was not able to replicate the injuries sustained by Mrs Lawrence. Whether or not a pig's head would be susceptible to cutting and deformation in a way similar to a human head, was not the subject of detailed expert evidence, but clearly the prosecution's experts, in undertaking the experiment must have thought it to be of some utility.

The disposition by the Court of Criminal Appeal of some of this relevant, potentially at least partially, exculpatory evidence was unsatisfactorily summary and almost entirely speculative.

"The material relating to the rust and the paint can be quickly disposed of. Although the petitioner's drawing of the wrench labelled it a 'Sidchrome', he also described it as 'rusty'. Two obvious possibilities, if a wrench/spanner were the relevant weapon, were either that he was mistaken in his recollection as to the brand, or alternatively that rust had adhered to it as a result of its having been stored with or used on some rusty object.

So far as the paint was concerned, it does not seem to have been suggested at trial that the entire weapon was blue. Rather, it appears from the outset to have been more likely that it had some blue adhering to it. A layer of blue paint from the forklift was indistinguishable from the blue paint specks found in the deceased's head wounds. However, paint of that colour and composition is relatively common. There were further layers in the paint from the forklift, which were of a composition not reflected in material found in Mrs Lawrence's head wounds. For that reason Mr Lynch, principal chemist at the Chemistry Centre WA, said in evidence on this appeal that he considered it unlikely that the forklift was the source of the paint in Mrs Lawrence's wounds.

So far as the rest of the material is concerned, although it has a number of nuances and variations, the broad thrust of the petitioner's submission can be summarised as being to the effect that:  a wrench could not have been the murder weapon; and this fact was known to the prosecution but not disclosed to the defence. Had the jury known that it could not have been the weapon, doubt would have been cast on the petitioner's confession to use of a wrench as the weapon. That proposition falls to be evaluated against the evidence given at trial, and the evidence given before us, as to the likely weapon."

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 was potentially highly significant in two respects. The first lay in its capacity to refute a central plank of the prosecution case with respect to the wrench. The second was its 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, some of which was inexplicably not recorded, although it should have been recorded.

The Court of Criminal Appeal also seems to have been overly impressed by evidence adduced by the respondent in rebuttal of Mallard's alibi, that he had at the time of the murder, been knocking on various doors looking for marijuana, from witnesses who said that they had heard no-one knocking on their doors. The disproof and rejection of the alibi did not mean that Mallard should on that account alone have been convicted.

Mallard's evidence at the trial was that he had left a taxi at Bel Air Apartments, without paying, shortly after 5 pm. While the driver waited, he entered the foyer and went through to another building to see whether the taxi had left. This he said, took about 20 minutes. The taxi driver said that he dropped Mallard off 4.45 to 5 pm and waited for about 20 minutes before returning to a nearby taxi rank and accepting a radio call at 5.22 pm. In cross-examination, he said that it was "nearer to 5 o'clock". Uncontradicted evidence at the trial was that the time taken to walk from Bel Air flats to Mrs Lawrence's shop was five minutes, or by another route, two minutes and 40 seconds. Both routes followed a path, directly in front of Bel Air, where the taxi driver was waiting for Mallard to return. That the taxi driver did not see him strongly suggests that he did not pass that way.

The body of evidence just summarized was capable, not only of establishing Mallard's absence from the scene of the murder at the time of it, but again, also of weakening the credibility of the confessional evidence. This was not a case, indeed few are, where the respective bodies of evidence can be taken as being in watertight compartments.

The confessional evidence consisted of the sum of an unrecorded interview by Detective Sergeant Caporn on 10 June 1994, a further unrecorded interview by another police officer, Detective Sergeant Brandham on 17 June 1994, and a short videotaped interview after the unrecorded interview on that day.

On the morning of 10 June 1994 Mallard was discharged from Graylands Hospital to answer a charge at the Central Law Courts in Perth. It was then that he was first interviewed. At 12.50 pm he was taken by police officers from the Central Law Courts to a police station where he was interviewed over a period of eight hours and 20 minutes with seven intervals. At trial he said that during the interview he "was in total confusion to the point where anything that he [Detective Sergeant Caporn] suggested to me I would adopt."  He was not, it may be observed, cautioned or charged during, or immediately before that interview.

The interview on 17 June 1994 was unrecorded. It lasted three hours. It was (to the knowledge of those conducting it) conducted after Mallard had spent most of the previous evening at a nightclub, had been beaten, and had had little sleep.

After the unrecorded interview of 17 June 1994, there was a videotaped interview of less than 30 minutes, described by the Court of Criminal Appeal as of a "very unusual nature". At the beginning of the interview, Mallard said:  "I want to be video recorded so that I can be cleared."  His closing words were that his account was "my version, my conjecture, of the scene of the crime."  In this interview, he often spoke of himself in the third person (for example, "initially I entered into the room, or this person entered the room ... thinking that he was on his own"). He also spoke about Mrs Lawrence as if he were speculating about her conduct rather than reporting his observations of it (for example, "I would say she would have done ..."). Several times he was interrupted by the interviewers (for example, when he said, "Judging by the damage that was shown to me in photographs ..."). During it he offered further suggestions about the murder.

The Court of Criminal Appeal described the circumstances and contents of Mallard's "confessions" as "peculiar", adding that Mallard "said a number of things which were, to say the least, odd."  Nonetheless, the Court concluded that Mallard had "persist[ed] in a pattern of grudging confession as his untrue accounts were rejected, together with a continuing attempt to mislead where possible."  One of the peculiarities of course, was Mallard's use of the third person in referring to the killer. For example, in the interview of 10 June 1994 he spoke of the "evil person" who killed Mrs Lawrence, and of the emotions that this person would be feeling, also saying "it's murder and that's not me." 

The Court of Criminal Appeal did not refer to other peculiarities of the confession, which was illogically punctuated by denials that he was the murderer. During one interview, he agreed to give, and gave, a blood sample, saying "This will clear me."

In the Court of Criminal Appeal the respondent submitted that 15 facts could be identified in Mallard's confession which only the murderer could know. In response, Mallard submitted that these were in truth inconsistent with known or established facts. Mallard submitted that the Court of Criminal Appeal erred in declining, as it did, to consider this submission. This error was a consequence of the Court's self-imposed limitation upon its duty to consider the whole case. Had the Court considered that submission it would have been bound to uphold it in part at least.

Some examples will suffice. The evidence about the Sidchrome spanner. The evidence of the blood patterns was different from the pattern that would probably have resulted had he struck Mrs Lawrence where he said he did. The evidence about the point, and his means of entry was, to say the least, unlikely to be true in the light of other evidence with respect to the securing of the front door of the shop.

During one of the interviews Mallard said that he had "locked eyes" with a girl, Miss Barsden, the young daughter of an employee of the deceased. At trial, she said that she had seen a man in the shop, when the car in which she was seated was stationary, and that this person "ducked down" (beneath the counter) when he realized she was looking at him. Evidence was adduced at the reference of an ophthalmologist who had tested Mallard's eyesight and found it to be impaired to such an extent as to cast doubt on his ability to "lock eyes" with anybody.

This witness, Miss Barsden, described the man whom she saw in the shop as a man of about six feet in height. Mallard is in fact six feet seven inches tall. The facial hair she described on the man she saw also differed from Mallard's, and it is likely that the headwear of the latter in turn differed from that which she observed on the man whom she saw in the shop.

It is highly improbable that the perpetrator of the crime would not have had some of Mrs Lawrence's blood spattered on him or her. None of the deceased's blood was detected on Mallard or his clothing. The evidence was that Mallard explained its absence by saying that he had washed his clothes in salt water because salt water obstructed or distorted the results of scientific testing. Credible, subsequent, scientific evidence was introduced to the effect that salt water was not present in his clothing, and that had Mallard's clothes been immersed in it as he claimed, the heavy rain falling at the time would not have been sufficient to wash all salt out of the clothing.

His assessment of the number of blows struck was approximate and varied from time to time. There was in fact no necessary correspondence between Mallard's description of Mrs Lawrence's clothing and what in fact she was wearing when she was attacked. There were discrepancies between Mallard's description of the premises and its actual configuration. Mallard denied that he had said much of what was attributed to him in the interviews by the police officers. The absence of any recording of most of the interviews is in these circumstances most unfortunate.

There was substance in Mallard's contention in this Court that the Court of Criminal Appeal wrongly declined to entertain a submission that most or all of the matters said by the respondent to be uniquely within the murderer's knowledge, were not objectively true, or were contradicted by other matters, or were equivocal, or were patently false: and, in consequence, for those and other reasons, including Mallard's denial that he had said what was attributed to him about them, the so-called confessions were unreliable.

There were numerous other matters relied on by Mallard, but we need refer to only one of them, his mental infirmity. The respondent submitted that the evidence of Mallard's psychiatric condition presented at the reference was neither fresh nor new:  it was materially identical to evidence adduced at the voir dire at the trial in relation to the admissibility of Mallard's interviews with police. It was dealt with in this way by the Court of Criminal Appeal:

"One of the particulars of 'fresh evidence' which is relied upon to establish that the petitioner's confessions were unreliable and should not have been admitted, or that a jury which had that evidence would be likely to have a reasonable doubt relating to them, is said to be the evidence of the psychiatric illness of the petitioner which is contained in affidavits of Dr Patchett.

On the other hand, although expert psychiatric evidence may have assisted the thrust of the submission outlined above, by confirming the petitioner's grandiose and unusual speech and thought patterns, there were apparent disadvantages associated with it. The evidence of Dr O'Dea at the voir dire described the petitioner at the relevant time as having been in a 'manic' state. He was described as liable to become 'up-tight and upset' and verbally threatening in situations of stress. He was described as having a 'rich fantasy life' but as being able to determine whether his ideas were fact or fantasy. The last of those observations might well have supported an inference that in his confessions, and particularly in the videotaped confession, the petitioner was quite able to distinguish between being asked about his own movements and being asked about some hypothetical murderer. The discussion of his 'manic' state could well have led to or strengthened a view that he was the type of person who might react disproportionately if, during the course of a robbery, Pamela Lawrence became upset and hysterical, as the police alleged that he had said she did."

There is considerable force in much of what the Court of Criminal Appeal said of the psychiatric evidence, its availability, its potential to damage the defence, and the forensic legitimacy of a decision not to lead it before a jury. But it had to be considered with the other evidence in obedience to a mandate to consider the whole of the case, and the whole of the case includes the evidence contradicting aspects of Mallard's confession. All of that provides a basis for further argument in favour of an inference that it should be treated as being of no or little reliability.

Counsel for the respondent made several concessions. They were all properly made. They alone, the respondent accepted, would require that the conviction be quashed, unless the proviso, that no substantial miscarriage of justice had occurred, should be applied. He submitted it should be. We are unable to agree. The non-presentation of the evidence to which we have referred, and having the significant forensic value that we have identified, alone, precludes this. Taken with the other evidence that we have discussed, Mallard is entitled to have the verdict quashed. This rather than a remission of the case to the Court of Criminal Appeal to decide the reference in accordance with these reasons is the appropriate course because the only possible correct conclusion there would be that the conviction should be quashed.

We would not however accede to Mallard's submission that a new trial should not be ordered. Mallard has already served many years of imprisonment. The case for the prosecution has now been shown to have its defects. But it also has its strengths. Having regard however to what has in total passed and emerged it would remain well open to the respondent to elect not to have Mallard retried if it were so minded.

The appeal should be allowed, the orders of the Court of Criminal Appeal set aside and in place thereof it should be ordered that the conviction of Mallard be quashed, and that there be an order for retrial of Mallard.

KIRBY J

I agree with the joint reasons that, once the correct approach is adopted and the evidence at trial analysed, this is not a case where the proviso should be applied. For the reasons stated, and to bring this protracted saga closer to finality, the proper course is for this Court to dispose of the proceedings and not to remit them for a third hearing in the Court of Criminal Appeal.

It is important to consider the cumulative effect of the non-disclosure or suppression of material evidence in the hands of the police and thus available to the prosecution. It is the cumulation, variety, number and importance of such evidence that is critical to my conclusion that a miscarriage of justice occurred in Mallard's trial.

The pig's head experiment
What was not disclosed at the trial was that, before the trial, an experiment had been conducted for police by striking a pig's head with a wrench. The conclusion of those conducting this experiment was that the wounds were "dissimilar".

The salt-water experiment
Mallard's "confession" to police had him going "down to the river ... and wash[ing] his clothing" after the attack, inferentially to remove blood stains. At the point of the river identified in this "confession", the clothes would have been exposed to the presence of salts in the river water. In its original form, a six page report for police by Mr Lynch contained two pages under the heading "Examination of clothing for immersion in river water". However, at the request of police, a second version of the report was produced omitting those two pages. The missing two pages were never disclosed to the defence. The undisclosed part of the report concluded that "[t]he residual soluble salts detected in the clothing items are not consistent with immersion in river water … unless they were subsequently washed in fresh water". The respondent sought to explain this discrepancy by referring to the fact that it had been raining on the evening of the deceased's murder. However, further experiments by Mr Lynch showed that, even in significant rainfall, the levels of salts in clothing soaked in river water remained clearly detectable.

The missing cap
Mallard's "confession" to police had it that he was wearing a cap with a gold border turned backwards. However, a prosecution witness, had made a handwritten statement only a few days after the deceased's murder. This stated that Mallard's familiar cap remained on a hook in her apartment on the afternoon of the murder. All references to the whereabouts of Mallard's cap, his wet hair and lack of headgear were removed by police from the original statement. The police prepared a second, typed, statement which deleted this information.

The undisclosed sketches
The day after the murder, Ms Barsden signed a statement for police. This stated that, at her mother's suggestion, when she had arrived home, she had drawn sketches of the man she had seen in the deceased's shop. Her original statement referred to these sketches. However, that version of the statement was not given to the defence. In the statement that was later produced, the reference to the sketches was deleted by police. There were discrepancies between the undisclosed sketches and the appearance of Mallard at the time of the attack on the deceased.

The locking of eyes
Mallard denied that he had said that he "locked eyes" with a girl passing by the shop where the deceased was killed. However, in an original police statement this phrase had been attributed to him. The phrase was deleted from the draft witness statement provided to the defence. The removal of the expression from the statement, as supplied, lends weight to the suggestion that the "verbal confession" attributed to Mallard amounted, in substantial parts at least, to words chosen by police rather than by Mallard. And that the later deletion of the statement was designed to remove an obvious source of discrepancy that could be brought out by cross-examination.

The man wearing a bandanna
Two witness statements, which were not disclosed to the defence, described a man seen wearing a bandanna on his head and behaving erratically within three kilometres of the scene of the murder several hours before it happened. At the time described, Mallard was detained in relation to another charge in the East Perth lockup. Accordingly, he could not have been the person described as wearing the bandanna. Yet the person so described more closely fitted Ms Barsden's description of the person she had seen and with whom she had "locked eyes".

Conclusion: material non-disclosures

A review of the foregoing and other evidence, which was not disclosed to Mallard's counsel at the trial, but which was in the possession of police and, at the least, available to the prosecution, suggests strongly that material evidence was not disclosed that bore upon the guilt of Mallard of the crime charged in the indictment. Whilst the non-disclosure of one or two of these items taken alone or perhaps together, might not have been sufficient to produce an unreasonable or unsupportable verdict, with a miscarriage of justice in the trial, a consideration of the totality of the unrevealed evidence raises a stark question as to the safety of Mallard's conviction.

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. The important issue of legal principle in this appeal is whether such non-disclosures and suppression deprived Mallard of a fair trial.

Approach to prosecution non-disclosures

"Prosecution Policy and Guidelines" were stated to be "based on, and developed from, the Crown's longstanding prosecution policy in Western Australia". They were said to take account of, and to incorporate, the Guidelines on the Role of Prosecutors adopted by the Eighth United Nations Congress on the Prevention of Crime and Treatment of Offenders of 1990 ("the United Nations Guidelines"). Indeed, the United Nations Guidelines are annexed to the Western Australian Guidelines.

The most important paragraphs of the Guidelines governing the disclosure of the prosecution case and provision of information to the defence are set out in the joint reasons. I would add, however, reference to the following additional paragraphs of the Guidelines:

If a prosecutor knows of a person who can give evidence which may be exculpatory, but forms the view that the person is not credible, the prosecutor is not obliged to call that witness.

In either case, the Crown, if requested by the defence, should subpoena the person.

If the prosecutor possesses such exculpatory information but forms the view that the statement is not credible or that the subject matter of the statement is contentious, the prosecutor is not obliged to disclose the contents of the statement to the defence, but should inform the defence of the existence of the information and its general nature.

However, if the prosecutor is of opinion that the statement is credible and not contentious, then a copy of that statement should be made available to the defence in good time.

The paragraphs are designed to relieve the prosecution of obligations to produce to the defence the text of statements made by collaborators, supporters and friends of the accused. In the present case, the unprovided and suppressed materials did not fall into that category. Without exception, they were statements procured in the preparation of the police brief for ultimate tender to the prosecutor. At least some of them were certainly known to the prosecutor. All of them would have been available to the Director of Public Prosecutions.

Where a form of statutory instrument is adopted, enjoying authority under an Act of the Parliament, it prevails, to the extent of any inconsistency, over principles of the common law. However, it is clear from the language and purpose of the Guidelines that they were not intended to expel the operation in Western Australia of the general principles of the common law on prosecution disclosures. Instead, they were intended to express, clarify, elaborate and make public the "longstanding prosecution policy" that had developed conformably with the common law. Moreover, they were intended to give effect to international principles which, in turn, were designed to ensure observance of "human rights and fundamental freedoms recognised by national and international law".

This Court's authority

The consequence of an omission of the prosecution in a criminal trial to supply to the defence statements of material witnesses was considered by this Court in Lawless v The Queen. There, a majority refused special leave to appeal against the dismissal of a petition of mercy on the ground that the "fresh evidence" relied upon would not have been likely to have led to a different result in a new trial. Murphy J, dissenting as to the result, observed that the trial judge had directed the prosecution to hand over to the applicant copies of all statements by witnesses. The prosecutor having disobeyed this direction by failing to hand over one such statement which "could have been useful to the applicant … [i]n the way the trial ran", Murphy J considered that the applicant had suffered a miscarriage of justice on the ground of the suppression of the evidence in and of itself.

In R v Apostilides, this Court affirmed the responsibility borne by a prosecutor in the conduct of a criminal trial. However, it acknowledged the jurisdiction of courts of criminal appeal to consider the consequences of the prosecutor's decision where, for example, an election not to call a particular person as a witness, when viewed against the conduct of the trial taken as a whole, could be seen to have given rise to a miscarriage of justice. The Court emphasised that the object of judicial scrutiny in such cases was not to discover whether there had been "misconduct" by the prosecution. It was to consider whether, in all of the circumstances, the verdict was unreasonable or unsupportable in the statutory sense.

A case involving a more explicit failure of the prosecution, being a failure to reveal that a key prosecution witness had been given a letter of comfort by an investigating police officer despite "widespread and deep involvement" in crimes of the type charged against the accused, was Grey v The Queen. The question in that case became whether the non-disclosure in question had occasioned a miscarriage of justice that was not insubstantial and had deprived the accused of a fair chance of acquittal. It was held that it was not reasonably necessary for the accused in that case to "fossick for information" to which he was entitled in the proper conduct of the prosecution against him. The Guidelines considered in that case, were not materially different from the Guidelines applicable to the present appeal. The determining consideration in Grey was that the undisclosed material was highly relevant to the credibility of several of the witnesses called by the prosecution against the accused and to the evaluation of the accused's own case. The same can be said of the undisclosed evidence in these proceedings. In Grey, the appeal was upheld.

The respondent did not contest its failure to provide relevant materials to Mallard. The question became one of the significance of such failure. As in LawlessApostilides and Grey, that question took the Court to the statutory provisions governing criminal appeals. However, in giving effect to those provisions, it is useful to consider the approaches taken in other countries that follow, as Australia does, the accusatory form of criminal trial, adapted from England. Allowing that it often reflects local constitutional and statutory law, when such authority is examined the considerations given weight by the courts suggest an increasingly insistent demand for the provision of material evidence known to the prosecution which is important for the fair trial of the accused and the proper presentation of the accused's defence. Exceptions exist. However, they are comparatively few and closely defined. Such an approach has been judged essential to the conduct of a fair trial of criminal accusations in many countries.

North American cases

In the United States of America, suppression by the prosecution of evidence favourable to an accused, where it is material to guilt or punishment, may be judged a violation of the due process requirements of the Fourteenth Amendment to the Constitution. Although Australia has no such constitutional provision, many of the notions that are protected by the Fourteenth Amendment are familiar to us given that, in criminal trials, the primary purpose of that constitutional protection is to ensure against miscarriages of justice that are equally abhorrent to our law.

In United States cases, as in the Guidelines applicable here, a distinction is drawn between the prosecutor's duty in respect of exculpatory evidence and evidence casting doubt on the truthfulness of other prosecution witnesses. In a recent case, bearing some similarity to Grey, the Supreme Court of the United States allowed an appeal where the State had failed to disclose that one of the witnesses upon whom it had relied was a paid police informant. If the undisclosed or suppressed evidence is judged such as to create a "reasonable probability" that a different result might have ensued had the evidence been disclosed to the defence at an appropriate time, a new trial will generally be ordered.

In language that recurs in the decisions of many courts on this issue, the Supreme Court of the United States has declared that the central question is "whether in [the] absence [of the material evidence, the accused] received a fair trial, understood as a trial resulting in a verdict worthy of confidence". The Supreme Court has explained that it is not the duty of the prosecutor to "deliver his entire file to defence counsel". Still less is it to conduct the defence case. The ambit of the duty of disclosure, however, is one deriving from the very character of the criminal process. Prudent prosecutors, it is said, will always resolve doubtful questions in favour of disclosure. They will do so in recognition that the role of the prosecutor is as:

"the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done."

Many of the same considerations have been upheld in the Supreme Court of Canada, including since the adoption of the Canadian Charter of Rights and Freedoms. Thus in R v Stinchcombe, Sopinka J referred to the duties of prosecutors in Canada which render "the fruits of the investigation … not the property of the Crown for use in securing a conviction but the property of the public to be used to ensure that justice is done".

In Canada, as elsewhere, non-disclosure is excused in particular cases, such as where the evidence is beyond the control of the prosecution, is privileged or is clearly irrelevant. However, otherwise, a high duty of disclosure has been affirmed. The criterion usually applied is the entitlement of the accused to a fair trial. In Canada, where undisclosed evidence appears material, it is for the Crown to bring itself within an exception to the general rule mandating disclosure. The rigour of this principle has doubtless been enhanced by the adoption of the Charter. But similar principles have been observed, for like reasons, in countries lacking such express constitutional provisions.

British and Irish cases

In the United Kingdom, the common law test required disclosure of material in the possession of the prosecution as "[a]n incident of a defendant's right to a fair trial". The prosecutor's duty in Britain is now governed by legislation. Such legislation modifies, to some extent, the accusatorial character of criminal trials. The procedures have been adapted accordingly. This fact makes more recent judicial authority in the United Kingdom of less significance for Australia. However, in R v Brown, Lord Hope of Craighead affirmed:

"The prosecution is not obliged to lead evidence which may undermine the Crown case, but fairness requires that material in its possession which may undermine the Crown case is disclosed to the defence. …  [T]he prosecution is not obliged to lead the evidence of witnesses who are likely in its opinion to be regarded by the judge or jury as incredible or unreliable. Yet fairness requires that material in its possession which may cast doubt on the credibility or reliability of those witnesses whom it chooses to lead must be disclosed."

Subject to any exceptions provided by statute or common law, I would accept this as a statement expressing the common law rule in this country. Its foundation, as Lord Hope explained, lies in "the principle of fairness [which is] at the heart of all the rules of the common law about the disclosure of material by the prosecutor".

In Scotland, which follows a different criminal procedure, a like duty of disclosure applies to the Crown in respect of "information in their possession which would tend to exculpate the accused". Similarly, in the Irish Republic, the courts have followed the general principles expressed by the English cases. Specifically, where the prosecution has a statement by a person in a position to give material evidence, who will not be called as a prosecution witness, it is "in general" under a duty to make available to the defence any statements that the witness may have given.

The English authorities have been influential throughout Commonwealth countries. A similar rule of prosecution disclosure is observed in New Zealand where Lord Hope's approach in Brown has been followed.

Demonstrating the generality and strictness of the rule, in Hong Kong, since its separation from the Crown, the courts have continued to observe the principle that, if disputed material is in the possession of the prosecution, which may help prove a defendant's innocence or avoid a miscarriage of justice, "the balance comes down resoundingly in favour of disclosing it".

International law decisions

The explicit introduction into the Guidelines in Western Australia of reference to international statements about human rights makes it relevant, in considering what flows from non-disclosure or suppression of material evidence in this case, to notice decisions concerning the requirements of the International Covenant on Civil and Political Rights binding on Australia and of the doctrine established by courts elucidating the similar or analogous provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms ("the European Convention").

In Edwards v United Kingdom, the European Court of Human Rights affirmed that the requirement in Art 6(1) of the European Convention, entitling everyone to a "fair and public hearing … by an independent and impartial tribunal established by law", extended, in a criminal prosecution, to a requirement that "the prosecution authorities disclose to the defence all material evidence for or against the accused". The Court noted that this was also a requirement recognised under English law. It is one that has been reinforced in more recent times by the European Court's decision in Fitt v United Kingdom. There, the Court observed:

"It is a fundamental aspect of the right to a fair trial that criminal proceedings … should be adversarial and that there should be equality of arms between the prosecution and defence. …  [B]oth prosecution and defence must be given the opportunity to have knowledge of and comment on the observations filed and the evidence adduced by the other party. In addition Article 6(1) requires, as indeed does English law, that the prosecution authorities should disclose to the defence all material evidence in their possession for or against the accused."

The European Court of Human Rights has recognised that the duty of disclosure is not absolute or precisely reciprocal in an accusatorial system. The duty may permit prosecution non-disclosure for reasons of competing interests such as national security; or to protect witnesses at risk of reprisal; or to keep secret police methods of investigating certain crimes; in some cases to preserve the fundamental rights of another individual; or to safeguard an important public interest. However, even where such exceptions exist, the European Court has insisted that it remains the accused's right to receive a fair trial and any difficulties caused by limitations on the right to disclosure must be "sufficiently counterbalanced by the procedures followed by the judicial authorities". Considerations such as these have led, in accusations of terrorism offences, to the adoption of new procedures involving "special advocates".

Non-disclosure of evidence: conclusions

The applicable principles
The foregoing review of the approach of courts, in national and international jurisdiction, indicates the growth of the insistence of the law, particularly in countries observing the accusatorial form of criminal trial, of the requirement that the prosecution may not suppress evidence in its possession, or available to it, material to the contested issues in the trial. It must ordinarily provide such evidence to the defence. Especially is this so where the material evidence may cast a significant light on the credibility or reliability of material prosecution witnesses or the acceptability and truthfulness of exculpatory evidence by or for the accused.

The obligation imposed by the law is to ensure a fair trial for the accused, remembering the special requirements that descend upon a prosecutor, who represents not an ordinary party but the organised community committed to the fair trial of criminal accusations and the avoidance of miscarriages of justice.

Ultimately, where there has been non-disclosure or suppression of material evidence, which fairness suggests ought to have been provided to the defence, the question is whether the omission has occasioned a miscarriage of justice. This is so both by the common law and by statute (and in some jurisdictions by constitutional mandate). The courts are guardians to ensure that "justice is done" in criminal trials. Where the prosecutor's evidentiary default or suppression "undermines confidence in the outcome of the trial", that outcome cannot stand. A conviction must then be set aside and consequential orders made to protect the accused from a risk of a miscarriage of justice. At least, this will follow unless an affirmative conclusion may be reached that the "proviso" applies – a conclusion less likely in such cases given the premise.

In a case of very limited non-disclosure which the appellate court concludes affirmatively to have been unlikely to have altered the outcome of the criminal trial, the proviso may be applied as it was in Lawless. However, in a case where the non-disclosure could have seriously undermined the effective presentation of the defence case, a verdict reached in the absence of the material evidence (and the use that the defence might have made of it) cannot stand. Such was the case in Grey.

Application of the principles
When the foregoing principles are applied to the present appeal, there can be but one conclusion. There were many curious features of this case at trial. The possibility that Mallard is innocent cannot be excluded. There is exculpating evidence. Some of it was simply not revealed to the defence. Some of it was actually suppressed so as to deprive the defence of material by which to test the accuracy of the evidence of obviously truthful witnesses and to impugn the credibility of others (particularly police) whose credibility was challenged and where the resolution of that challenge was significant for the acceptance or rejection by the jury of the unrecorded and unconfirmed "confessions". These "confessions" had their own peculiarities. Subjecting them to rigorous examination and scrutiny at the trial was essential to the fair trial of Mallard.

The very number, variety and significance of the material evidence that was not disclosed to the defence in these proceedings, without more, presents, potentially, an important body of testimony upon which counsel representing Mallard could suggest a failure by the prosecution to afford him a fair trial. In particular, the non-disclosure and suppression of evidence that presented contradictory (or at least highly inconvenient and troubling) testimony from getting before the jury could be viewed, of itself, as casting doubt on the reliability of the "confessions" that were an important foundation of the prosecution case.

I have described the requirements governing prosecution disclosure laid down by many courts for a purpose. Despite the distinct legal rules of different jurisdictions, there is a high measure of consistency in the emerging principles. This is hardly surprising given the links of history and the contemporary stimulus of universal notions of fundamental rights both for the expression of the common law and the elucidation of Guidelines founded in statute or other written law. There is nothing inconsistent with these principles in this Court's earlier doctrine. To the contrary, Australian law gives effect to them.

A reflection upon the consistency with which the principles are expressed and applied in the foregoing cases in courts of high authority confirms a conclusion that, in the present case, especially when viewed in combination, the many instances of prosecution non-disclosure and of the suppression of material evidence results in a conclusion that Mallard's trial cannot enjoy public confidence. This is another way of saying, in terms of the Code, that the jury's verdict is unreasonable or insupportable in the light of the "whole case", as it is now known.

Conclusion: a miscarriage of justice

It follows that there has been a miscarriage of justice in this case. It is impossible to conclude that the errors which occurred in Mallard's trial can be described as insubstantial so as to warrant dismissal of the appeal under the proviso. The appeal must be allowed.

The disposition and orders

Submission for acquittal
Mallard strongly argued that he was entitled to an order of acquittal. By reference to the defects in the conduct of his trial, the suggested errors in the suppression of material evidence, the substantial material relevant to his mental infirmity said to explain the peculiarities of his "confessions", the prolonged period he has already served in prison and the burden of a retrial on him, on witnesses and on the community, Mallard asked this Court to bring his incarceration to a close with an order of acquittal.

In Dyers v The Queen, I collected considerations that this Court has viewed in the past as relevant, where a conviction is quashed, to adding the usual order for a new trial and, exceptionally, to omitting that course. As I acknowledged there, retrial is the normal order in such circumstances. This leaves it to the prosecution, within the Executive Government, to take into account all relevant considerations and to ensure consistency in the treatment of like cases in ordering a retrial.

In Dyers, I concluded that no new trial should be ordered in the special circumstances of that case. However, all other members of the Court joined in making the usual order. That is the order that should be made here, but in the terms, and for the reasons, expressed in the joint reasons.

A new trial order:
There remain curiosities in the evidence of Mallard in the first trial. There are issues of conflicting evidence that an appellate court cannot satisfactorily resolve. Whether, in all the circumstances, a retrial should be had, is a question properly left to the Director of Public Prosecutions. The matters disclosed in this appeal will doubtless be of assistance to him in making his decision.

I agree in the orders proposed in the joint reasons.

The Australian - 22 Feb 2006 - Released man vows to solve murder case

The Australian - 22 Feb 2006 - A murderer no more

Mallard v R [2005] HCA 68; (2005) 224 CLR 125; (2005) 222 ALR 236; (2005) 80 ALJR 160 (15 November 2005)

17 November 2005

http://www.austlii.edu.au/au/cases/cth/HCA/2005/68.html

HIGH COURT OF AUSTRALIA
GUMMOW, KIRBY, HAYNE, CALLINAN AND HEYDON JJ

ANDREW MARK MALLARD APPELLANT

AND

THE QUEEN RESPONDENT

Mallard v The Queen [2005] HCA 68
15 November 2005
P77/2004

ORDER

1. Appeal allowed.

2. Set aside the orders of the Court of Criminal Appeal of the Supreme Court of Western Australia dated 3 December 2003 and, in place thereof, order that the conviction of the appellant be quashed, and that there be an order for retrial of the appellant.

On appeal from the Supreme Court of Western Australia

Representation:

M J McCusker QC with J J Edelman for the appellant (instructed by Clayton Utz)

B W Walker QC with B Fiannaca for the respondent (instructed by Director of Public Prosecutions (Western Australia))

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

 

CATCHWORDS

Mallard v The Queen

Criminal law - Appellant convicted of murder - Appellant petitioned for mercy - Attorney-General referred petition to Court of Criminal Appeal - Whether non-disclosure of exculpatory evidence by prosecution denied appellant a fair trial or fair chance of acquittal - Scope of jurisdiction of Court of Criminal Appeal on Attorney-General's reference under s 140(1)(a) Sentencing Act 1995 (WA) - Duty to consider the "whole case" - Whether Court of Criminal Appeal erred in refusing to consider evidence adduced at trial - Whether jury verdict unreasonable or unsupportable - Whether jury verdict could not be supported having regard to the evidence - Whether a substantial miscarriage of justice occurred - Whether a retrial should be ordered.

Appeal - New trial - Petition for mercy - Reference of whole case to Court of Criminal Appeal - Scope of proceedings in Full Court.

Words and phrases - "fresh evidence", "new evidence", "whole case", "as if it were an appeal".

Criminal Code (WA), ss 21, 689(1).

Sentencing Act 1995 (WA), s 140(1)(a).

 

 

  1. GUMMOW, HAYNE, CALLINAN AND HEYDON JJ. The appellant was tried and convicted by the Supreme Court of Western Australia (Murray J with a jury) of the murder of Mrs Lawrence, the proprietor of a jewellery shop, at Perth on 23 May 1994. The trial lasted 10 days. The appellant unsuccessfully appealed to the Court of Criminal Appeal of Western Australia. After he had served eight years of his sentence of life imprisonment in strict security, he petitioned for clemency. The Attorney-General for Western Australia referred the petition to the Court of Criminal Appeal which dismissed the appeal. The appeal to this Court raises questions as to the way in which the Court of Criminal Appeal should proceed in determining a reference of such a petition and the evidence to which it may have regard in doing so.

     

    The legislation

     

  2. Part 19 of the Sentencing Act 1995 (WA) ("the Act") both preserves the royal prerogative of mercy and makes alternative provision for its effective exercise by the Court of Criminal Appeal. The relevant provisions are as follows:

     

    "Part 19 - Royal Prerogative of Mercy

    137 Royal Prerogative of Mercy not affected

    This Act does not affect the Royal Prerogative of Mercy or limit any exercise of it.

    138 Effect of pardon

    (1) A pardon granted in the exercise of the Royal Prerogative of Mercy has the effect of discharging the offender from the effects of the sentence imposed for the offence and of any other order made as a consequence of the offender's conviction.

    (2) A pardon does not quash or set aside the conviction for the offence.

    139 Governor may remit order to pay money

    The Governor may remit the whole or part of any sum of money that an offender is, under this Act or any other written law, ordered to pay as a penalty, or by way of forfeiture or estreat, or compensation, or costs, in relation to the offence, whether to the Crown or not.

    140 Petition may be referred to CCA

    (1) A petition for the exercise of the Royal Prerogative of Mercy in relation to an offender convicted on indictment, or to the sentence imposed on such an offender, may be referred by the Attorney General to the Court of Criminal Appeal either -

    (a) for the whole case to be heard and determined as if it were an appeal by the offender against the conviction or against the sentence (as the case may be); or

    (b) for an opinion on any specific matter relevant to determining the petition.

    (2) The Court of Criminal Appeal must give effect to the referral.

    141 Offender may be paroled

    (1) In the exercise of the Royal Prerogative of Mercy in relation to an offender who is sentenced to imprisonment, the Governor may make a parole order in respect of the offender.

    (2) An offender may be paroled under subsection (1) whether or not he or she is or will be eligible for parole and despite section 96(3).

    (3) The release date is that set by the Governor.

    (4) The parole period is that set by the Governor; but it must be at least 6 months and not more than 5 years.

    (5) Part 3 of the Sentence Administration Act 1995 applies in respect of the parole order and to the offender to whom the parole order applies."

     

  3. Part 19 was enacted in replacement of s 21 of the Criminal Code (WA) which read:

     

    "Royal prerogative of mercy not affected

    21 Nothing in this Code affects Her Majesty's royal prerogative of mercy, but the Attorney General on the consideration of any petition for the exercise of Her Majesty's mercy having reference to the conviction of a person on indictment or to the sentence passed on a person so convicted, may, if he thinks fit, at any time either -

    (a) refer the whole case to the Court of Criminal Appeal, and the case shall then be heard and determined by the Court of Criminal Appeal as in the case of an appeal by a person convicted; or

    (b) if he desires the assistance of the Court of Criminal Appeal on any point arising in the case with a view to the determination of the petition, refer that point to the Court of Criminal Appeal for their opinion thereon, and the Court shall consider the point so referred and furnish the Attorney General with their opinion thereon accordingly."

     

  4. Provision for the referral of petitions for clemency to the courts owes its modern origin to public adverse reaction to the excessive imposition of capital punishment in the nineteenth and earlier centuries. As the capital statutes were repealed so as to apply the death penalty to fewer offences, appeals for pardons to the Crown tended to be made in cases of asserted miscarriages of justice, despite the anomaly to which a successful petition might give rise, that a person who has in fact come to be considered to have been wrongly convicted or innocent, is pardoned, and not acquitted of the crime. The importance of this avenue of recourse to justice, effectively controlled by the Executive, declined, after the introduction of the Criminal Appeal Act 1907 (UK) to establish the Court of Criminal Appeal, although no attempt was made to abolish it. It proved fortunate that this was so because there was, initially at least, a judicial reluctance to allow appeals in criminal cases, occasioned in part no doubt by the sanctity accorded, and usually desirably so, to the verdict of a jury, and less desirably, to the legal conservatism of some of the judiciary of the day.

     

     

  5. The provision with which the Court is concerned in this case is similar in substance to provisions in other States[1].

     

     

  6. The significance of this history for present purposes, is that the exercise for which s 140(1)(a) of the Act provides is effectively both a substitute for, and an alternative to, the invocation, and the exercise of the Crown prerogative, an exercise in practice necessarily undertaken by officials and members of the Executive, unconfined by any rules or laws of evidence, procedure, and appellate conventions and restrictions. That history, briefly stated, argues in favour of an approach by a court on a reference of a petition by the Attorney-General to it, of a full review of all the admissible relevant evidence available in the case, whether new, fresh or already considered in earlier proceedings, however described, except to the extent if any, that the relevant Part of the Act may otherwise require.

     

     

  7. The Attorney-General for the State of Western Australia referred this petition to the Court of Criminal Appeal under s 140(1)(a) of the Act. Criminal appeals are the subject of s 689 of the Criminal Code, which provides as follows:

     

    "689 Determination of appeals in ordinary cases

    (1) The Court of Criminal Appeal on any such appeal against conviction shall allow the appeal, if they think that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court before whom the appellant was convicted should be set aside on the ground of a wrong decision of any question of law or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal:

    Provided that the Court may, notwithstanding that they are of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if they consider that no substantial miscarriage of justice has actually occurred.

    (2) Subject to the appeal provisions of this chapter the Court of Criminal Appeal shall, if they allow an appeal against conviction, quash the conviction and either direct a judgment and verdict of acquittal to be entered or order a new trial.

    (3) On an appeal against sentence the Court of Criminal Appeal shall, if they think that a different sentence should have been passed, quash the sentence passed at the trial, and pass such other sentence warranted in law by the verdict or which may lawfully be passed for the offence of which the appellant or an accused person stands convicted (whether more or less severe) in substitution therefor as they think ought to have been passed and in any other case shall dismiss the appeal.

    (4) On an appeal against sentence the Court of Criminal Appeal may have regard to whether or not the appellant or a convicted person has failed wholly or partly to fulfil an undertaking to assist law enforcement authorities that caused the sentencing court to reduce the sentence that it would otherwise have passed."

    The proper approach

     

  8. Insight into the cautious way in which the Court of Criminal Appeal here (Parker, Wheeler and Roberts-Smith JJ) conceived its function under the Act and the Criminal Code can be gained from these passages in that Court's unanimous judgment[2]:

     

    "It was accepted on both sides that on reference the court had a duty to consider the 'whole case'. The court is required to consider the case in its entirety, subject only to the limitation that it is bound to act upon legal principles appropriate to an appeal.

    However, there was at times a tendency for counsel for the petitioner to refer to this proposition as if it justified the hearing afresh of evidence at trial and evidence called on the appeal, without regard either to the verdict of the jury or to the previous decision of the Court of Criminal Appeal in this case. That was particularly noticeable in the petitioner's opening submissions, in which very detailed submissions were put as to discrepancies between the evidence of various witnesses as to the timing of certain events. Those matters were before the jury at the petitioner's trial, although of course they were not marshalled and emphasised in precisely the way in which the petitioner now seeks to marshal and emphasise them."

  9. Their Honours then reviewed the authorities with respect to the identification and reception of evidence as fresh evidence. They drew a distinction between "new evidence", that is, evidence available but not adduced at trial, and "fresh evidence", which appellate courts ordinarily will receive, on the basis that it did not then exist, or, if it did, could not then have been discovered with reasonable diligence. Their whole approach thereafter proceeded on the basis of the passages that we have quoted, that is, as if there were serious inhibitions upon that Court's jurisdiction to consider, not just the evidence that was adduced at the trial, but also its relevance to the further evidence that the appellant sought to introduce and rely upon in the reference.

  10. It seems to us that the approach was an erroneous one. Subject only to what we will say later about the words "as if it were an appeal" which appear in s 140(1)(a) of the Act, the explicit reference to "the whole case"[3] conveys no hint of any inhibition upon the jurisdiction of the Court of Criminal Appeal on a reference. Indeed, to the contrary, the words "the whole case" embrace the whole of the evidence properly admissible, whether "new", "fresh" or previously adduced, in the case against, and the case for the appellant. That does not mean that the Court may not, if it think it useful, derive assistance from the way in which a previous appellate court has dealt with some, or all of the matters before it, but under no circumstances can it relieve it of its statutory duty to deal with the whole case. The history, as we have already mentioned, points in the same direction. The inhibitory purpose and effect of the words "as if it were an appeal" are merely to confine the Court to the making of orders, and the following of procedures apposite to an appeal, and further, and perhaps most relevantly, to require the Court to consider whether the overall strength of the prosecution case requires the Court to apply the proviso contained in s 689(1) of the Criminal Code.

  11. This construction of Pt 19 of the Act is consistent with the approach of Toohey and Gaudron JJ (Mason CJ and Brennan J agreeing) in Mickelberg v The Queen[4]:
    "The words of s 21(a) of the Code, so far as they require 'the whole case ... [to] be heard and determined', permit of only one meaning. It is the whole case which must be passed upon by the application of legal principles appropriate to criminal appeals. That being so, the power to exclude matters from consideration is properly to be seen as an aspect of the inherent power of a court to control its own proceedings. That power will authorize the exclusion of issues which are frivolous or vexatious[5]. However, subject to an issue being properly excluded as frivolous or vexatious, it is, in our view, the duty of a court to which there has been a reference of the whole case to pronounce upon the whole case as presented."

  12. It is also consistent with the construction adopted by Lord Diplock (Lords Scarman, Roskill, Brandon of Oakbrook and Templeman agreeing) in R v Chard[6] of like language of s 17(1)(a) of the Criminal Appeal Act 1968 (UK):
    "In my view, which I understand is shared by all your Lordships, the words of paragraph (a) of subsection (1) in their natural and ordinary meaning are free from any trace of ambiguity; the person whose case which resulted in his conviction is the subject matter of the reference is to be treated for all purposes as if he were a person upon whom there is conferred by section 1 of the Criminal Appeal Act 1968 a general right of appeal to the Court of Appeal on any ground which he wishes to rely (whether it be of law or fact or mixed law and fact), without need to obtain the prior leave of that court.

    ...

    Since it is the 'whole case' that is referred, this must include all questions of fact and law involved in it ..." (emphasis added)

  13. It follows that in proceeding as it did, the Court of Criminal Appeal erred in law. The question remains however, whether that error induced or caused a miscarriage of justice, the same question as would exercise the mind of the Executive were it to deal with a petition rather than refer it to the Court of Criminal Appeal for determination. The answer to that question may only be given after a consideration of the facts, not only as they emerged at the trial, but also as they emerged in the Court of Criminal Appeal, no matter what descriptive term the evidence adduced there might be given. It is elementary that some matters may assume an entirely different complexion in the light of other matters and facts either ignored or previously unknown.

    Facts

  14. Mrs Lawrence was alone in her shop when she was violently assaulted with a heavy instrument which has never been found. The assault occurred in the late afternoon. She was discovered, barely alive, but terminally injured, in a pool of her own blood, by her husband. The appellant had, on a previous occasion or occasions, been in the shop. He was a user of marijuana. Earlier on the day of the assault, he had been briefly in the custody of police officers. Following the death he was repeatedly interviewed by police officers, both while he was in hospital for the treatment of mental infirmity, and elsewhere. Only one of the interviews was recorded. During the interviews he made some highly fanciful, indeed incredible assertions and claims, as well as apparently inculpatory, confessional statements.

  15. Some witnesses at the trial, with varying degrees of credibility, swore that they had seen the appellant in or about the shop at or about the time of the murder. It is sufficient for immediate purposes to say, that the whole of the evidence at the trial, including that of the appellant, despite conflicts in it, was sufficient to sustain a verdict of guilty.

  16. On the reference however, further evidence was adduced. It also became apparent that a deal of it had been in the possession of investigating police before, and during the trial, and had not then been disclosed to the appellant. (Whether any of it was in the possession of the Director of Public Prosecutions is a question that is unnecessary to investigate.) Some, at least, of that evidence, the respondent concedes should have been disclosed pursuant to cll 57-60 of the Statement of Prosecution Policy and Guidelines made and gazetted pursuant to the Director of Public Prosecutions Act 1991 (WA).
    "Disclosure of Crown Case

    57. The Crown has a general duty to disclose the case in-chief for the prosecution to the defence.

    58. Normally full disclosure of all relevant evidence will occur unless in exceptional circumstances full disclosure prior to the trial will undermine the administration of justice, or when such disclosure may endanger the life or safety of a witness.

    Disclosure of Information to the Defence

    59. When information which may be exculpatory comes to the attention of a prosecutor and the prosecutor does not intend adducing that evidence, the prosecutor will disclose to the defence -

    (a) the nature of the information;

    (b) the identity of the person who possesses it; and

    (c) when known, the whereabouts of the person.

    60. These details should be disclosed in good time."

  17. At this point it is relevant to note that the recent case of Grey v The Queen[7] in this Court stands as authority for the proposition that the prosecution must at common law also disclose all relevant evidence to an accused, and that a failure to do so may, in some circumstances, require the quashing of a verdict of guilty. As will appear, the evidence which was not produced before or at this trial, was certainly no less cogent than the evidence which was not disclosed in Grey.

  18. Some of the further evidence related to the alleged murder weapon. In one interview, the appellant was asked what the assailant's weapon was. He replied, "A wrench". The appellant was asked to, and did draw a wrench, with the word "Sidchrome" on it. That drawing was an exhibit of which much was made at the trial. The deceased's husband said in evidence, with little conviction, that he thought that there may have been a Sidchrome spanner missing from a shed which his late wife used as a workshop behind the shop. The respondent had stressed both in opening and closing the prosecution case at the trial that the wrench drawn by the appellant was the murder weapon.

  19. When the appellant gave evidence he denied that he had told the police that Mrs Lawrence had been killed with a wrench. He said that his sketch of the wrench was:
    "a sketch of a supposed weapon that we were talking about in our theory which I said was a gas wrench to be used on acetylene equipment. I have no idea what a gas wrench looks like. That is what I assumed it would look like in my theory."

    There was in fact no acetylene equipment in the workshop.

  20. During the reference a number of contradictory facts were brought out for the first time and highlighted. These included that experiments had been done on behalf of the respondent with a crescent-shaped wrench of the kind said to be the murder weapon. The experiments conducted by a forensic pathologist and police officers, included the striking with a copper anode (of the kind kept in Mrs Lawrence's workshop), and a wrench, of a pig's head in an attempt, unsuccessful, to replicate Mrs Lawrence's wounds.

  21. Other facts relevant to the nature of the murder weapon are these. Residues of rust and Prussian Blue pigment had been found in Mrs Lawrence's wounds. The composition of Sidchrome wrenches is such that they rarely rust. Sidchrome spanners were sold unpainted. A layer of blue paint from a forklift located near the deceased's premises did contain Prussian Blue pigment. The forensic pathologist who undertook the experiment said that a wrench could not have caused many of the injuries because it would cause blunt, crushing-type injuries rather than the cuts and lacerations suffered by Mrs Lawrence. He had examined a variety of tools, including spanners, in a friend's workshop and had been unable to find one capable of matching the wounds sustained by Mrs Lawrence. Similarly, two investigating police officers, Detectives Brandon and Carter, had attempted without success to locate a wrench which would be likely to produce wounds similar to those inflicted on the scalp of Mrs Lawrence. In 2002, at the request of those acting on behalf of the appellant, the pathologist, Dr Cooke, performed a further experiment with a pig's head, using a Sidchrome spanner supplied to him, and again was not able to replicate the injuries sustained by Mrs Lawrence. Whether or not a pig's head would be susceptible to cutting and deformation in a way similar to a human head, was not the subject of detailed expert evidence, but clearly the prosecution's experts, in undertaking the experiment must have thought it to be of some utility

  22. The disposition by the Court of Criminal Appeal of some of this relevant, potentially at least partially, exculpatory evidence was unsatisfactorily summary and almost entirely speculative[8].
    "The material relating to the rust and the paint can be quickly disposed of. Although the petitioner's drawing of the wrench labelled it a 'Sidchrome', he also described it as 'rusty'. Two obvious possibilities, if a wrench/spanner were the relevant weapon, were either that he was mistaken in his recollection as to the brand, or alternatively that rust had adhered to it as a result of its having been stored with or used on some rusty object.

    So far as the paint was concerned, it does not seem to have been suggested at trial that the entire weapon was blue. Rather, it appears from the outset to have been more likely that it had some blue adhering to it. A layer of blue paint from the forklift was indistinguishable from the blue paint specks found in the deceased's head wounds. However, paint of that colour and composition is relatively common. There were further layers in the paint from the forklift, which were of a composition not reflected in material found in Mrs Lawrence's head wounds. For that reason Mr Lynch, principal chemist at the Chemistry Centre WA, said in evidence on this appeal that he considered it unlikely that the forklift was the source of the paint in Mrs Lawrence's wounds.

    So far as the rest of the material is concerned, although it has a number of nuances and variations, the broad thrust of the petitioner's submission can be summarised as being to the effect that: a wrench could not have been the murder weapon; and this fact was known to the prosecution but not disclosed to the defence. Had the jury known that it could not have been the weapon, doubt would have been cast on the petitioner's confession to use of a wrench as the weapon. That proposition falls to be evaluated against the evidence given at trial, and the evidence given before us, as to the likely weapon."

  23. 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 was potentially highly significant in two respects. The first lay in its capacity to refute a central plank of the prosecution case with respect to the wrench. The second was its 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, some of which was inexplicably not recorded, although it should have been recorded.

  24. The Court of Criminal Appeal also seems to have been overly impressed by evidence adduced by the respondent in rebuttal of the appellant's alibi, that he had at the time of the murder, been knocking on various doors looking for marijuana, from witnesses who said that they had heard no-one knocking on their doors. The disproof and rejection of the alibi did not mean that the appellant should on that account alone have been convicted.

  25. The appellant's evidence at the trial was that he had left a taxi at Bel Air Apartments, without paying (telling the taxi driver, Mr Peverall that he was going inside for money), shortly after 5 pm. While the driver waited, he entered the foyer and went through to another building, Dover Court, and then up to the top floor of it, to see whether the taxi had left. This he said, took about 20 minutes. Mr Peverall in examination in chief, said that he dropped the appellant off at Bel Air at about 4.45 to 5 pm and waited for about 20 minutes before returning to a nearby taxi rank and accepting a radio call at 5.22 pm. In cross-examination, after being shown evidence that he had given at a previous hearing that it could have been just before, or just after 5 o'clock, he said that it was "nearer to 5 o'clock". Uncontradicted evidence at the trial was that the time taken to walk from Bel Air flats to Mrs Lawrence's shop was five minutes, or by another route, two minutes and 40 seconds. Both routes followed a path, directly in front of Bel Air, where Mr Peverall was waiting for the appellant to return to pay his fare. Mr Peverall was of course looking out for him. That Mr Peverall did not see him strongly suggests that he did not pass that way.

  26. The body of evidence just summarized was capable, not only of establishing the appellant's absence from the scene of the murder at the time of it, but again, also of weakening the credibility of the confessional evidence. This was not a case, indeed few are, where the respective bodies of evidence can be taken as being in watertight compartments

  27. It is to the confessional evidence that we now turn. It consisted of the sum of an unrecorded interview by Detective Sergeant Caporn on 10 June 1994, a further unrecorded interview by another police officer, Detective Sergeant Brandham on 17 June 1994, and a short videotaped interview after the unrecorded interview on that day

  28. On the morning of 10 June 1994 the appellant was discharged from Graylands Hospital to answer a charge at the Central Law Courts in Perth. It was then that he was first interviewed. At 12.50 pm he was taken by police officers from the Central Law Courts to a police station where he was interviewed over a period of eight hours and 20 minutes with seven intervals. At trial he said that during the interview on 10 June 1994, he "was in total confusion to the point where anything that he [Detective Sergeant Caporn] suggested to me I would adopt." He was not, it may be observed, cautioned or charged during, or immediately before that interview

  29. The interview on 17 June 1994 was unrecorded. It lasted three hours. It was (to the knowledge of those conducting it) conducted after the appellant had spent most of the previous evening at a nightclub, had been beaten, and had had little sleep.

  30. After the unrecorded interview of 17 June 1994, there was a videotaped interview of less than 30 minutes, described by the Court of Criminal Appeal as of a "very unusual nature". At the beginning of the interview, the appellant said: "I want to be video recorded so that I can be cleared." His closing words were that his account was "my version, my conjecture, of the scene of the crime." In this interview, he often spoke of himself in the third person (for example, "initially I entered into the room, or this person entered the room ... thinking that he was on his own"). He also spoke about Mrs Lawrence as if he were speculating about her conduct rather than reporting his observations of it (for example, "I would say she would have done ..."). Several times he was interrupted by the interviewers (for example, when he said, "Judging by the damage that was shown to me in photographs ..."). During it he offered further suggestions about the murder, such as. 
    "DET SGT BRANDON [sic]: ... You said that you approached her from the rear of the shop and she asked you 'What are you doing here?'

    MR MALLARD: Yeah.

    DET SGT BRANDON: Is that right?

    MR MALLARD: That's right.

    DET SGT BRANDON: Okay. And that you said to her that you were going to rob her. This is what you told us. Okay?

    MR MALLARD: This is what I imagine this person would say.

    ...

    DET SGT BRANDON: ... Now, you also said that she gave you a purse?

    MR MALLARD: A purse.

    DET SGT BRANDON: All right.

    MR MALLARD: I would say it would have to be a matching purse. Being a woman of taste, she would have had a matching handbag and a matching purse. At a last resort, I would have gone for a Glomesh bag.

    DET SGT BRANDON: Okay. All right. You told us that she was dressed in what?

    MR MALLARD: A skirt of some sort. Again, being a woman of taste and sophistication, she would have had to be --- worn a nice skirt like this, but one that joins up.

    ...

    DET SGT BRANDON: Right, and I think you said that you virtually ran there [the Stirling Bridge] from the scene?

    MR MALLARD: Would have had to.

    DET SGT BRANDON: Yeah.

    MR MALLARD: Or caught a train much --- probably at North Fremantle, but I don't think so because the tapes --- there's no videotapes of that day.

    DET SGT BRANDON: No problems.

    MR MALLARD: So he was either very fit or he had a push-bike."

  31. The Court of Criminal Appeal described the circumstances and contents of the appellant's "confessions" as "peculiar", adding that the appellant "said a number of things which were, to say the least, odd." Nonetheless, the Court concluded that the appellant had "persist[ed] in a pattern of grudging confession as his untrue accounts were rejected, together with a continuing attempt to mislead where possible." One of the peculiarities of course, was the appellant's use of the third person in referring to the killer. For example, in the interview of 10 June 1994 he spoke of the "evil person" who killed Mrs Lawrence, and of the emotions that this person would be feeling, also saying "it's murder and that's not me."

  32. The Court of Criminal Appeal did not refer to other peculiarities of the confession, which was illogically punctuated by denials that he was the murderer. During one interview, he agreed to give, and gave, a blood sample, saying "This will clear me."

  33. In the Court of Criminal Appeal the respondent submitted that 15 facts could be identified in the appellant's confession which only the murderer could know. In response, the appellant submitted that these were in truth inconsistent with known or established facts. The appellant submitted that the Court of Criminal Appeal erred in declining, as it did, to consider this submission. This error was a consequence of the Court's self-imposed limitation upon its duty to consider the whole case. Had the Court considered that submission it would have been bound to uphold it in part at least.

  34. Some examples will suffice. One to which we have already referred and need not repeat, is the evidence about the Sidchrome spanner which falls into the relevant category. The evidence of the blood patterns was different from the pattern that would probably have resulted had he struck Mrs Lawrence where he said he did. The evidence about the point, and his means of entry was, to say the least, unlikely to be true in the light of other evidence with respect to the securing of the front door of the shop.

  35. During one of the interviews the appellant said that he had "locked eyes" with a girl, Miss Barsden, the young daughter of an employee of the deceased. At trial, she said that she had seen a man in the shop, when the car in which she was seated was stationary, and that this person "ducked down" (beneath the counter) when he realized she was looking at him. Evidence was adduced at the reference of an ophthalmologist who had tested the appellant's eyesight and found it to be impaired to such an extent as to cast doubt on his ability to "lock eyes" with anybody. The eyewitness' evidence at the reference was relevantly as follows:
    "Q: Right?

    A: And I stared at him what I felt was longer than he was aware that I was looking at him. I feel that in my process of staring at this person, that when that person realised that someone was looking at him, and this is why I think he - anyway - the minute that I feel he saw me, he ducked down.

    Q: Yes, so your recollection - and you have put it here, 'The man saw me looking at him.' Your view was that he realised you were looking at him and then ducked down?

    A: Yes, I think so.

    Q: Sure. Would you agree that you couldn't say that you actually made eye contact with him in the sense of eyes looking into eyes?

    A: No, but I feel that in the process of staring at him and the process - that I feel that he looked directly at me and then that was followed by him bobbing down. I feel that he became aware that I was watching him.

    Q: Quite. If you're looking at someone and that person has turned towards you and then suddenly bobs down, you would assume that he must have seen you looking at him?

    A: Yes.

    Q: Coming back to my question, you're not saying, are you, that you were staring into each other's eyes?

    A: When he could see me he was ...

    Q: Pardon?

    A: I could see him. I could see his eyes. I was looking at him. I feel that. Now, it's more that he saw me than eye contact ...

    Q: Pardon? Eye to eye contact or ...?

    A: No. I was looking at him.

    Q: Yes?

    A: And I feel that when he saw me looking at him ..."

  36. This witness, Miss Barsden, described the man whom she saw in the shop as a man of about six feet in height. The appellant is in fact six feet seven inches tall. The facial hair she described on the man she saw also differed from the appellant's, and it is likely that the headwear of the latter in turn differed from that which she observed on the man whom she saw in the shop.

  37. It is highly improbable that the perpetrator of the crime would not have had some of Mrs Lawrence's blood spattered on him or her. We interpolate that there were photographs in the possession of the respondent at the time of the trial of a large pool of blood on the floor of Mrs Lawrence's premises which, like the evidence of the experiments to which we have referred, were not produced until the reference. None of the deceased's blood was detected on the appellant or his clothing. The evidence was that the appellant explained its absence by saying that he had washed his clothes in salt water because salt water obstructed or distorted the results of scientific testing. Credible, subsequent, scientific evidence was introduced to the effect that salt water was not present in his clothing, and that had the appellant's clothes been immersed in it as he claimed, the heavy rain falling at the time would not have been sufficient to wash all salt out of the clothing.

  38. It is unnecessary to do more than refer briefly to some of the other matters relied on by the respondent as facts peculiarly within the knowledge of the murderer and known to the appellant. On examination, it can be seen that several of them were not in fact accurately or completely stated by him. His assessment of the number of blows struck was, for example, approximate and varied from time to time. There was in fact no necessary correspondence between the appellant's description of Mrs Lawrence's clothing and what in fact she was wearing when she was attacked. Similarly, there were discrepancies between the appellant's description of the premises and its actual configuration. The appellant denied that he had said much of what was attributed to him in the interviews by the police officers. The absence of any recording of most of the interviews is in these circumstances most unfortunate.

  39. Enough appears to indicate that there was substance in the appellant's contention in this Court that the Court of Criminal Appeal wrongly declined to entertain a submission that most or all of the matters said by the respondent to be uniquely within the murderer's knowledge, were not objectively true, or were contradicted by other matters, or were equivocal, or were patently false: and, in consequence, for those and other reasons, including the appellant's denial that he had said what was attributed to him about them, the so-called confessions were unreliable.

  40. There were numerous other matters relied on by the appellant, but we need refer to only one of them, his mental infirmity. The respondent submitted that the evidence of the appellant's psychiatric condition presented at the reference was neither fresh nor new: it was materially identical to evidence adduced at the voir dire at the trial in relation to the admissibility of the appellant's interviews with police. It was dealt with in this way by the Court of Criminal Appeal[9]
    "One of the particulars of 'fresh evidence' which is relied upon to establish that the petitioner's confessions were unreliable and should not have been admitted, or that a jury which had that evidence would be likely to have a reasonable doubt relating to them, is said to be the evidence of the psychiatric illness of the petitioner which is contained in affidavits of Dr Patchett.

    ...

    On the other hand, although expert psychiatric evidence may have assisted the thrust of the submission outlined above, by confirming the petitioner's grandiose and unusual speech and thought patterns, there were apparent disadvantages associated with it. The evidence of Dr O'Dea at the voir dire described the petitioner at the relevant time as having been in a 'manic' state. He was described as liable to become 'up-tight and upset' and verbally threatening in situations of stress. He was described as having a 'rich fantasy life' but as being able to determine whether his ideas were fact or fantasy. The last of those observations might well have supported an inference that in his confessions, and particularly in the videotaped confession, the petitioner was quite able to distinguish between being asked about his own movements and being asked about some hypothetical murderer. The discussion of his 'manic' state could well have led to or strengthened a view that he was the type of person who might react disproportionately if, during the course of a robbery, Pamela Lawrence became upset and hysterical, as the police alleged that he had said she did."

     

  41. There is considerable force in much of what the Court of Criminal Appeal said of the psychiatric evidence, its availability, its potential to damage the defence, and the forensic legitimacy of a decision not to lead it before a jury. But it had to be considered with the other evidence in obedience to a mandate to consider the whole of the case, and the whole of the case includes the evidence contradicting aspects of the appellant's confession. All of that provides a basis for further argument in favour of an inference that it should be treated as being of no or little reliability.

  42. In submissions counsel for the respondent made several concessions as to some of the matters that we have discussed. We need not repeat them. They were all properly made. They alone, the respondent accepted, would require that the conviction be quashed, unless the proviso, that no substantial miscarriage of justice had occurred, should be applied. He submitted it should be. We are unable to agree. The non-presentation of the evidence to which we have referred, and having the significant forensic value that we have identified, alone, precludes this. Taken with the other evidence that we have discussed, the appellant is entitled to have the verdict quashed. This rather than a remission of the case to the Court of Criminal Appeal to decide the reference in accordance with these reasons is the appropriate course because the only possible correct conclusion there would be that the conviction should be quashed.

  43. We would not however accede to the appellant's submission that a new trial should not be ordered. The appellant has already served many years of imprisonment. The case for the prosecution has now been shown to have its defects. But it also has its strengths. Those strengths include some parts of the confessional evidence, assuming it may, in the light of s 570D of the Criminal Code[10] which was not then, but is now in force, be received. Its strengths also included the other circumstantial evidence. 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 retried if it were so minded.

  44. The appeal should be allowed, the orders of the Court of Criminal Appeal set aside and in place thereof it should be ordered that the conviction of the appellant be quashed, and that there be an order for retrial of the appellant.

  45. KIRBY J. This appeal[11] concerns the exercise by the Court of Criminal Appeal of Western Australia, in 2003, of powers conferred upon it to determine a petition invoking the Royal Prerogative of Mercy[12]. Mr Andrew Mallard ("the appellant") protests his innocence of the murder of Mrs Pamela Lawrence ("the deceased"). Her death occurred in Perth on 23 May 1994. At his trial, the appellant was found guilty by a jury and was convicted. An appeal against his conviction was dismissed in 1996 by the Court of Criminal Appeal[13]. An application made to this Court in 1997 for special leave to appeal was refused[14].

  46. In 2003, the Court of Criminal Appeal having once again rejected the appellant's "appeal"[15], application for special leave was renewed. This time it was successful. Whereas the earlier attempt to engage the attention of this Court was addressed principally at the suggested miscarriage of justice occasioned by interviews by police, partly unrecorded and unconfirmed[16], the present appeal has been concerned with the "whole case"[17] brought against the appellant at trial and the defects and errors said to have arisen there, with the suggested consequence that the jury's verdict of guilty was unreasonable or unsustainable[18], warranting the setting aside of the appellant's conviction. In particular, whilst maintaining the 1997 complaints concerning the unrecorded and unconfirmed confessions to police, the appellant added new and different criticisms about the conduct of his trial. The chief thrust of the appellant's present submissions to this Court concerns the suggested non-disclosure (or suppression) by the prosecution of material evidence which, it was said, had deprived the appellant of a fair trial[19].

  47. In my opinion, the appellant has, on this occasion, made good his complaints about his trial. The Court of Criminal Appeal, in deciding the issues raised in the appellant's petition, erred both in its approach and in its conclusions. The appellant's conviction must be quashed and consequential orders made.

    The facts and legislation

  48. The background facts are stated in the joint reasons[20]. Also set out in those reasons are the provisions of the Sentencing Act, providing for the reference of the appellant's petition to the Court of Criminal Appeal[21], and the provisions of the Code[22] which govern the determination of an appeal to the Court of Criminal Appeal. Pursuant to the Sentencing Act, a petition, once referred, is taken to be such an appeal[23].

  49. The provisions of the Code contain a "proviso" permitting the judges in the appellate court to dismiss an appeal "if they consider that no substantial miscarriage of justice has actually occurred"[24]. Essentially, in the second "appeal" before the Court of Criminal Appeal, the case turned on the application of the "proviso". This was so, because, properly, the prosecution conceded that, in a number of respects, material evidence ought to have been disclosed to the defence at trial by the prosecution but had not been[25]. This concession (whether or not involving the Director of Public Prosecutions in the non-disclosure[26]) arguably established the existence of an unreasonable or unsustainable verdict. 

  50. The continued concentration by the Court of Criminal Appeal upon the appellant's attack on the confessional evidence[27], together with the narrow view which that Court took of its jurisdiction and powers, diverted their Honours from a proper consideration of the cumulative effect of the non-disclosure (or suppression) of evidence material to the appellant's guilt of the crime charged (or, as expressed by the appellant, of his innocence of that crime).

    The issues

  51. Four issues in the appeal: There are four issues in the appeal: 

    (1) The "whole case" issue: Whether the Court of Criminal Appeal erred in the approach that it adopted with respect to the hearing of the appeal that was before it on the reference by the Attorney-General. Whether, given its obligation to hear "the whole case" and to determine such case as required by law[28], that Court was obliged to consider and determine all questions of fact and law involved in the case (as the appellant contended) or authorised to adopt the narrower approach that it had done (as the respondent argued).

    (2) The unsustainable verdict issue: Whether, within the Code[29], and adopting the correct approach to the "whole case", the Court of Criminal Appeal erred in failing to conclude that the verdict of the jury (and thus the conviction) should be set aside on the ground that it was unreasonable or could not be supported having regard to the evidence or otherwise that there had been a miscarriage of justice.

    (3) The proviso issue: Whether, if it is concluded that the verdict of the jury was unreasonable or was otherwise flawed, the appellant's conviction should nonetheless be sustained on the basis that, by reference to the entirety of the evidence, no substantial miscarriage of justice had actually occurred.

    (4) The disposition issue: Whether, if the foregoing issues are decided in the appellant's favour, this Court should enter an acquittal (as the appellant submitted) or direct a retrial (as the respondent urged)

  52. Common ground in some issues: On the bases stated in the joint reasons, I agree that the Court of Criminal Appeal erred in its approach to the discharge of its functions. It took too narrow a view of its jurisdiction and powers. This was inconsistent with the statutory language (with its reference to "the whole case") and with relevant decisional authority addressing the same or similar statutory provisions[30].

  53. I also agree with the joint reasons that, once the correct approach is adopted and the evidence at trial analysed, this is not a case where the proviso should be applied[31]. For the reasons stated, and to bring this protracted saga closer to finality, the proper course is for this Court to dispose of the proceedings and not to remit them for a third hearing in the Court of Criminal Appeal. 

  54. These conclusions confine my reasons to the errors in the trial that render the jury's verdict unreasonable or unsupportable (most especially the multiple instances of non-disclosure or suppression of material evidence by the prosecution) and the actual order of disposition that should be made. I will deal with these points in turn. They ultimately bring me to a conclusion identical to that reached in the joint reasons. 

    The cumulative instances of non-disclosure 

  55. Instances of non-disclosure: The facts relevant to this aspect of the appeal emerge both from the evidence at the appellant's trial (which lasted ten days) and from "fresh" evidence agreed in the Court of Criminal Appeal in the present proceedings.

  56. The facts are detailed and complex. They are sketched in outline in the joint reasons. However, it is important to consider the cumulative effect of the non-disclosure or suppression of material evidence in the hands of the police and thus available to the prosecution. It is the cumulation, variety, number and importance of such evidence that is critical to my conclusion that a miscarriage of justice occurred in the appellant's trial. I shall mention the most important of this evidence in summary form:

    (1) The pig's head experiment: A significant element in the prosecution case against the appellant was his alleged confession that he had committed the brutal murder of the deceased using a wrench, which he had procured from a shed at the rear of the deceased's jewellery shop, to strike the deceased's head. The appellant's explanation of the reference to the wrench was that it was simply his "theory" of the mechanism of the deceased's death. But at trial the term "wrench" was repeatedly used to describe the murder weapon as if it was established that this was the way the death of the deceased had been caused. A sketch by the appellant of a Sidchrome wrench became an exhibit in the trial.

    What was not disclosed at the trial to those representing the appellant (but disclosed to the Court of Criminal Appeal in a comprehensive summary of facts agreed between the parties[32]) was that, before the trial, an experiment had been conducted for police by striking a pig's head with a wrench similar to that drawn by the appellant in order to compare the wounds thereby inflicted with those disclosed in the deceased's head. The conclusion of those conducting this experiment was that the wounds were "dissimilar". After a second test conducted with a similar wrench, Dr Cooke, a forensic expert, concluded that such a wrench "could not have caused many of the injuries to the Deceased because it had a blunt crushing type mechanism rather than a chopping type mechanism". Although the experiment with the pig's head was discussed by Dr Cooke with police officers and with the prosecutor before the trial, the conduct of the experiment and its outcome were not revealed to the defence.

    (2) The salt-water experiment: There was strong evidence at the trial that the infliction of multiple blows on the skull of the deceased would have caused a spattering of blood in all directions. This was confirmed by the blood spatters around the partition in the deceased's shop where the deceased was first attacked. One small spot of blood alone was found on the only shoes that the appellant owned. It was proved not to be blood from the deceased. It was consistent with the appellant's own blood.

    The appellant's "confession" to police had him going "down to the river ... and wash[ing] his clothing" after the attack, inferentially to remove blood stains. At the point of the river identified in this "confession", the clothes would have been exposed to the presence of salts in the river water. In its original form, a six page report for police by Mr Lynch contained two pages under the heading "Examination of clothing for immersion in river water". However, at the request of police, a second version of the report was produced omitting those two pages. The missing two pages were never disclosed to the defence. Yet the undisclosed part of the report concluded that "[t]he residual soluble salts detected in the clothing items are not consistent with immersion in river water ... unless they were subsequently washed in fresh water". The respondent sought to explain this discrepancy by referring to the fact that it had been raining on the evening of the deceased's murder. However, further experiments by Mr Lynch showed that, even in significant rainfall, the levels of salts in clothing soaked in river water remained clearly detectable.

    (3) The missing cap: The appellant's "confession" to police had it that he was wearing a cap with a gold border turned backwards. This was said to be consistent with the evidence of the witness Ms Barsden who described a person whom she had momentarily seen in the deceased's shop at about the time of the murder. However, a prosecution witness, Ms Michelle Engelhardt, had made a handwritten statement only a few days after the deceased's murder. This stated that the appellant's familiar cap remained on a hook in her apartment on the afternoon of the murder. Ms Engelhardt said that, when the appellant arrived at her apartment that evening, he was not wearing any headgear at all and his hair was wet, inferentially from the rain. However, all references to the whereabouts of the appellant's cap, his wet hair and lack of headgear were removed by police from Ms Engelhardt's original statement. The police prepared a second, typed, statement which deleted this information. It was agreed before the Court of Criminal Appeal that Ms Engelhardt's original handwritten statement had not been disclosed to the defence at the trial, although it was in the possession of the police and although it contained material casting doubt upon the link that the prosecution had sought to make between the appellant and the presumed assailant seen by Ms Barsden.

    (4) The undisclosed sketches: The day after the murder, Ms Barsden signed a statement for police. This stated that, at her mother's suggestion, when she had arrived home, she had drawn sketches of the man she had seen in the deceased's shop. Her original statement referred to these sketches. However, that version of the statement was not given to the defence. In the statement that was later produced, the reference to the sketches was deleted by police. There were discrepancies between the undisclosed sketches and the appearance of the appellant at the time of the attack on the deceased. The appellant then had a large and clearly visible moustache. There was no moustache in the sketches. The sketches showed a person with a beard; whereas the appellant had none. Ms Barsden further described the person she saw as having a scarf tied "like a gypsy" on his head with no hair visible. However, a taxi driver, Mr Peverall, who had seen the appellant at the Bel Air apartments minutes before the murder occurred, mentioned no hat, cap or headgear. He described the appellant's hair as "fairly long" and "untidy". Ms Barsden described the person she saw as of "medium build" whereas Mr Peverall, accurately, described the appellant's build as "slim".

    (5) The locking of eyes: The appellant denied that he had said that he "locked eyes" with a girl passing by the shop where the deceased was killed. However, in an original police statement this phrase had been attributed to him. The phrase was deleted from the draft witness statement provided to the defence. Evidence, referred to in the joint reasons[33], concerning defects in the appellant's vision, made it extremely unlikely that he would "lock eyes" with anyone sitting in a passing car outside the deceased's shop. Still less was it likely that the appellant would ever say so. The removal of the expression from the statement, as supplied, lends weight to the suggestion that the "verbal confession" attributed to the appellant amounted, in substantial parts at least, to words chosen by police rather than by the appellant. And that the later deletion of the statement was designed to remove an obvious source of discrepancy that could be brought out by cross-examination.

    (6) The man wearing a bandanna: Two witness statements, which were not disclosed to the defence, described a man seen wearing a bandanna on his head and behaving erratically within three kilometres of the scene of the murder several hours before it happened. At the time described, the appellant was detained in relation to another charge in the East Perth lockup. Accordingly, he could not have been the person described as wearing the bandanna. Yet the person so described more closely fitted Ms Barsden's description of the person she had seen and with whom she had "locked eyes". This was a man described as of five foot eleven inches (180 centimetres) wearing a "gypsy style bandanna". The appellant was much taller than the person so described (six foot six inches or 198 centimetres). He did not use that form of head-dress. The existence in the vicinity of a person more closely fitting the description of the man seen in the deceased's shop at about the time of the murder, would have been a fruitful source of evidence and argument before the jury in the defence case.

  57. Conclusion: material non-disclosures: A review of the foregoing and other evidence, which was not disclosed to the appellant's counsel at the trial, but which was in the possession of police and, at the least, available to the prosecution, suggests strongly that material evidence was not disclosed that bore upon the guilt of the appellant of the crime charged in the indictment. Whilst the non-disclosure of one or two of these items (eg items (4) and (6)), taken alone or perhaps together, might not have been sufficient to produce an unreasonable or unsupportable verdict, with a miscarriage of justice in the trial, a consideration of the totality of the unrevealed evidence raises a stark question as to the safety of the appellant's conviction.

  58. 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. The important issue of legal principle in this appeal is whether such non-disclosures and suppression deprived the appellant of a fair trial.

    Approach to prosecution non-disclosures

     

  59. The WA prosecution guidelines: Pursuant to the Director of Public Prosecutions Act 1991 (WA)[34], the Director of Public Prosecutions of Western Australia issued a statement, operative from 1 November 1992, on "Prosecution Policy and Guidelines" ("the Guidelines"). The statement was published in the Western Australian Government Gazette[35]. It applied to the conduct of the prosecution in relation to the appellant's trial.

     

     

  60. The Guidelines were stated to be "based on, and developed from, the Crown's longstanding prosecution policy in Western Australia". They were said to take account of, and to incorporate, the Guidelines on the Role of Prosecutors adopted by the Eighth United Nations Congress on the Prevention of Crime and Treatment of Offenders of 1990 ("the United Nations Guidelines")[36]. Indeed, the United Nations Guidelines are annexed to the Western Australian Guidelines.

     

     

  61. The most important paragraphs of the Guidelines governing the disclosure of the prosecution case and provision of information to the defence are set out in the joint reasons[37]. I would add, however, reference to the following additional paragraphs of the Guidelines:

     

    "61. If a prosecutor knows of a person who can give evidence which may be exculpatory, but forms the view that the person is not credible, the prosecutor is not obliged to call that witness.

    62. In either case, the Crown, if requested by the defence, should subpoena the person.

    63. If the prosecutor possesses such exculpatory information but forms the view that the statement is not credible or that the subject matter of the statement is contentious, the prosecutor is not obliged to disclose the contents of the statement to the defence, but should inform the defence of the existence of the information and its general nature.

    64. However, if the prosecutor is of opinion that the statement is credible and not contentious, then a copy of that statement should be made available to the defence in good time."

     

  62. The foregoing paragraphs (at least pars 61 and 63) are designed to relieve the prosecution of obligations to produce to the defence the text of statements made by collaborators, supporters and friends of the accused. In the present case, the unprovided and suppressed materials did not fall into that category. Without exception, they were statements procured in the preparation of the police brief for ultimate tender to the prosecutor. At least some of them were certainly known to the prosecutor. All of them would have been available to the Director of Public Prosecutions.

  63. Where a form of statutory instrument is adopted, enjoying authority under an Act of the Parliament, it prevails, to the extent of any inconsistency, over principles of the common law. However, it is clear from the language and purpose of the Guidelines that they were not intended to expel the operation in Western Australia of the general principles of the common law on prosecution disclosures. Instead, they were intended to express, clarify, elaborate and make public the "longstanding prosecution policy" that had developed conformably with the common law. Moreover, as noted above[38], they were intended to give effect to international principles which, in turn, were designed to ensure observance of "human rights and fundamental freedoms recognised by national and international law"[39].

  64. This Court's authority: The consequence of an omission of the prosecution in a criminal trial to supply to the defence statements of material witnesses was considered by this Court in Lawless v The Queen[40]. There, a majority[41] refused special leave to appeal against the dismissal of a petition of mercy on the ground that the "fresh evidence" relied upon would not have been likely to have led to a different result in a new trial. Murphy J, dissenting as to the result[42], observed that the trial judge had directed the prosecution to hand over to the applicant copies of all statements by witnesses. The prosecutor having disobeyed this direction by failing to hand over one such statement which "could have been useful to the applicant ... [i]n the way the trial ran", Murphy J considered that the applicant had suffered a miscarriage of justice on the ground of the suppression of the evidence in and of itself.

  65. In R v Apostilides[43], this Court affirmed the responsibility borne by a prosecutor in the conduct of a criminal trial. However, it acknowledged the jurisdiction of courts of criminal appeal to consider the consequences of the prosecutor's decision where, for example, an election not to call a particular person as a witness, when viewed against the conduct of the trial taken as a whole, could be seen to have given rise to a miscarriage of justice[44]. The Court emphasised that the object of judicial scrutiny in such cases was not to discover whether there had been "misconduct" by the prosecution. It was to consider whether, in all of the circumstances, the verdict was unreasonable or unsupportable in the statutory sense[45].

  66. A case involving a more explicit failure of the prosecution, being a failure to reveal that a key prosecution witness had been given a letter of comfort by an investigating police officer despite "widespread and deep involvement" in crimes of the type charged against the accused, was Grey v The Queen[46]. The question in that case became whether the non-disclosure in question had occasioned a miscarriage of justice that was not insubstantial and had deprived the accused of a fair chance of acquittal. It was held that it was not reasonably necessary for the accused in that case to "fossick for information" to which he was entitled in the proper conduct of the prosecution against him[47]. The Guidelines considered in that case, issued under the Director of Public Prosecutions Act 1986 (NSW), were not materially different from the Guidelines applicable to the present appeal[48]. The determining consideration in Grey was that the undisclosed material was highly relevant to the credibility of several of the witnesses called by the prosecution against the accused and to the evaluation of the accused's own case. The same can be said of the undisclosed evidence in these proceedings. In Grey, the appeal was upheld.

  67. The respondent did not contest its failure to provide relevant materials to the appellant. It could scarcely do so, having regard to the agreed facts. Thus, upon this issue, both in the Court of Criminal Appeal and in this Court, the question became one of the significance of such failure. As in LawlessApostilides and Grey, that question took the Court to the statutory provisions governing criminal appeals. However, in giving effect to those provisions, it is useful to consider the approaches taken in other countries that follow, as Australia does, the accusatory form of criminal trial, adapted from England. Allowing that it often reflects local constitutional and statutory law, when such authority is examined the considerations given weight by the courts suggest an increasingly insistent demand for the provision of material evidence known to the prosecution which is important for the fair trial of the accused and the proper presentation of the accused's defence. Exceptions exist. However, they are comparatively few and closely defined. Such an approach has been judged essential to the conduct of a fair trial of criminal accusations in many countries.

  68. North American cases: In the United States of America, suppression by the prosecution of evidence favourable to an accused, where it is material to guilt or punishment, may be judged a violation of the due process requirements of the Fourteenth Amendment to the Constitution[49]. Although Australia has no such constitutional provision, many of the notions that are protected by the Fourteenth Amendment are familiar to us given that, in criminal trials, the primary purpose of that constitutional protection is to ensure against miscarriages of justice that are equally abhorrent to our law[50].

  69. In United States cases, as in the Guidelines applicable here, a distinction is drawn between the prosecutor's duty in respect of exculpatory evidence and evidence casting doubt on the truthfulness of other prosecution witnesses[51]. In a recent case, bearing some similarity to Grey, the Supreme Court of the United States allowed an appeal where the State had failed to disclose that one of the witnesses upon whom it had relied was a paid police informant[52]. If the undisclosed or suppressed evidence is judged such as to create a "reasonable probability"[53] that a different result might have ensued had the evidence been disclosed to the defence at an appropriate time, a new trial will generally be ordered.

  70. In language that recurs in the decisions of many courts on this issue, the Supreme Court of the United States has declared that the central question is "whether in [the] absence [of the material evidence, the accused] received a fair trial, understood as a trial resulting in a verdict worthy of confidence"[54]. The Supreme Court has explained that it is not the duty of the prosecutor to "deliver his entire file to defence counsel"[55]. Still less is it to conduct the defence case. The ambit of the duty of disclosure, however, is one deriving from the very character of the criminal process. Prudent prosecutors, it is said, will always resolve doubtful questions in favour of disclosure[56]. They will do so in recognition that the role of the prosecutor is as[57]:
    "the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done."

  71. Many of the same considerations have been upheld in the Supreme Court of Canada, including since the adoption of the Canadian Charter of Rights and Freedoms. Thus in R v Stinchcombe[58], Sopinka J[59] referred to the duties of prosecutors in Canada which render "the fruits of the investigation ... not the property of the Crown for use in securing a conviction but the property of the public to be used to ensure that justice is done".

     

  72. In Canada, as elsewhere, non-disclosure is excused in particular cases, such as where the evidence is beyond the control of the prosecution, is privileged or is clearly irrelevant. However, otherwise, a high duty of disclosure has been affirmed[60]. The criterion usually applied is the entitlement of the accused to a fair trial[61]. In Canada, where undisclosed evidence appears material, it is for the Crown to bring itself within an exception to the general rule mandating disclosure. The rigour of this principle has doubtless been enhanced by the adoption of the Charter[62]. But similar principles have been observed, for like reasons, in countries lacking such express constitutional provisions.

  73. British and Irish cases: In the United Kingdom, the common law test required disclosure of material in the possession of the prosecution as "[a]n incident of a defendant's right to a fair trial"[63]. The prosecutor's duty in Britain is now governed by legislation[64]. Such legislation modifies, to some extent, the accusatorial character of criminal trials[65]. The procedures have been adapted accordingly. This fact makes more recent judicial authority in the United Kingdom of less significance for Australia. However, in R v Brown, Lord Hope of Craighead affirmed[66]:
    "The prosecution is not obliged to lead evidence which may undermine the Crown case, but fairness requires that material in its possession which may undermine the Crown case is disclosed to the defence. ... [T]he prosecution is not obliged to lead the evidence of witnesses who are likely in its opinion to be regarded by the judge or jury as incredible or unreliable. Yet fairness requires that material in its possession which may cast doubt on the credibility or reliability of those witnesses whom it chooses to lead must be disclosed."

  74. Subject to any exceptions provided by statute or common law, I would accept this as a statement expressing the common law rule in this country. Its foundation, as Lord Hope explained, lies in "the principle of fairness [which is] at the heart of all the rules of the common law about the disclosure of material by the prosecutor"[67].

  75. In Scotland, which follows a different criminal procedure, a like duty of disclosure applies to the Crown in respect of "information in their possession which would tend to exculpate the accused"[68]. Similarly, in the Irish Republic, the courts have followed the general principles expressed by the English cases[69]. Specifically, where the prosecution has a statement by a person in a position to give material evidence, who will not be called as a prosecution witness, it is "in general" under a duty to make available to the defence any statements that the witness may have given[70].

  76. The English authorities have been influential throughout Commonwealth countries. A similar rule of prosecution disclosure is observed in New Zealand[71] where Lord Hope's approach in Brown has been followed.

  77. Demonstrating the generality and strictness of the rule, in Hong Kong, since its separation from the Crown, the courts have continued to observe the principle that, if disputed material is in the possession of the prosecution, which may help prove a defendant's innocence or avoid a miscarriage of justice, "the balance comes down resoundingly in favour of disclosing it"[72]

  78. International law decisions: The explicit introduction into the Guidelines in Western Australia of reference to international statements about human rights makes it relevant, in considering what flows from non-disclosure or suppression of material evidence in this case, to notice decisions concerning the requirements of the International Covenant on Civil and Political Rights[73] binding on Australia[74] and of the doctrine established by courts elucidating the similar or analogous provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms[75] ("the European Convention").

  79. In Edwards v United Kingdom[76], the European Court of Human Rights affirmed that the requirement in Art 6(1) of the European Convention, entitling everyone to a "fair and public hearing ... by an independent and impartial tribunal established by law", extended, in a criminal prosecution, to a requirement that "the prosecution authorities disclose to the defence all material evidence for or against the accused"[77]. The Court noted that this was also a requirement recognised under English law. It is one that has been reinforced in more recent times by the European Court's decision in Fitt v United Kingdom[78]. There, the Court observed[79]:
    "It is a fundamental aspect of the right to a fair trial that criminal proceedings ... should be adversarial and that there should be equality of arms between the prosecution and defence. ... [B]oth prosecution and defence must be given the opportunity to have knowledge of and comment on the observations filed and the evidence adduced by the other party. In addition Article 6(1) requires, as indeed does English law, that the prosecution authorities should disclose to the defence all material evidence in their possession for or against the accused."

  80. The European Court of Human Rights has recognised that the duty of disclosure is not absolute or precisely reciprocal in an accusatorial system. The duty may permit prosecution non-disclosure for reasons of competing interests such as national security; or to protect witnesses at risk of reprisal; or to keep secret police methods of investigating certain crimes; in some cases to preserve the fundamental rights of another individual; or to safeguard an important public interest[80]. However, even where such exceptions exist, the European Court has insisted that it remains the accused's right to receive a fair trial and any difficulties caused by limitations on the right to disclosure must be "sufficiently counterbalanced by the procedures followed by the judicial authorities"[81]. Considerations such as these have led, in accusations of terrorism offences, to the adoption of new procedures involving "special advocates"[82].

    Non-disclosure of evidence: conclusions

  81. The applicable principles: The foregoing review of the approach of courts, in national and international jurisdiction, indicates the growth of the insistence of the law, particularly in countries observing the accusatorial form of criminal trial[83], of the requirement that the prosecution may not suppress evidence in its possession, or available to it, material to the contested issues in the trial. It must ordinarily provide such evidence to the defence. Especially is this so where the material evidence may cast a significant light on the credibility or reliability of material prosecution witnesses or the acceptability and truthfulness of exculpatory evidence by or for the accused.

  82. According to the principles expressed (as in Apostilides), this Court will not second guess the prosecutor in the decisions that have to be made in presenting the prosecution case. Still less is the prosecutor burdened with an obligation to present the defence case (which, in any event, may not always be known in advance of the trial). The obligation imposed by the law is to ensure a fair trial for the accused, remembering the special requirements that descend upon a prosecutor, who represents not an ordinary party but the organised community committed to the fair trial of criminal accusations and the avoidance of miscarriages of justice.

  83. Ultimately, where there has been non-disclosure or suppression of material evidence, which fairness suggests ought to have been provided to the defence, the question is whether the omission has occasioned a miscarriage of justice. This is so both by the common law and by statute[84] (and in some jurisdictions by constitutional mandate). The courts are guardians to ensure that "justice is done" in criminal trials[85]. Where the prosecutor's evidentiary default or suppression "undermines confidence in the outcome of the trial"[86], that outcome cannot stand. A conviction must then be set aside and consequential orders made to protect the accused from a risk of a miscarriage of justice. At least, this will follow unless an affirmative conclusion may be reached that the "proviso" applies - a conclusion less likely in such cases given the premise.

  84. In a case of very limited non-disclosure which the appellate court concludes affirmatively to have been unlikely to have altered the outcome of the criminal trial, the proviso may be applied as it was in Lawless[87]. However, in a case where the non-disclosure could have seriously undermined the effective presentation of the defence case, a verdict reached in the absence of the material evidence (and the use that the defence might have made of it) cannot stand. Such was the case in Grey[88].

  85. Application of the principles: When the foregoing principles are applied to the present appeal, there can be but one conclusion. There were many curious features of this case at trial. The possibility that the appellant is innocent cannot be excluded. There is exculpating evidence. Some of it was simply not revealed to the defence. Some of it was actually suppressed so as to deprive the defence of material by which to test the accuracy of the evidence of obviously truthful witnesses and to impugn the credibility of others (particularly police) whose credibility was challenged and where the resolution of that challenge was significant for the acceptance or rejection by the jury of the unrecorded and unconfirmed "confessions". These "confessions" had their own peculiarities. Subjecting them to rigorous examination and scrutiny at the trial was essential to the fair trial of the appellant.

  86. The very number, variety and significance of the material evidence that was not disclosed to the defence in these proceedings, without more, presents, potentially, an important body of testimony upon which counsel representing the appellant could suggest a failure by the prosecution to afford him a fair trial. In particular, the non-disclosure and suppression of evidence that presented contradictory (or at least highly inconvenient and troubling) testimony from getting before the jury could be viewed, of itself, as casting doubt on the reliability of the "confessions" that were an important foundation of the prosecution case. 

  87. I have described the requirements governing prosecution disclosure laid down by many courts for a purpose. Despite the distinct legal rules of different jurisdictions, there is a high measure of consistency in the emerging principles. This is hardly surprising given the links of history and the contemporary stimulus of universal notions of fundamental rights both for the expression of the common law and the elucidation of Guidelines founded in statute or other written law. There is nothing inconsistent with these principles in this Court's earlier doctrine. To the contrary, Australian law gives effect to them. 

  88. A reflection upon the consistency with which the principles are expressed and applied in the foregoing cases in courts of high authority confirms a conclusion that, in the present case, especially when viewed in combination, the many instances of prosecution non-disclosure and of the suppression of material evidence results in a conclusion that the appellant's trial cannot enjoy public confidence[89]. This is another way of saying, in terms of the Code, that the jury's verdict is unreasonable or unsupportable in the light of the "whole case", as it is now known. 

  89. Conclusion: a miscarriage of justice: It follows that there has been a miscarriage of justice in this case. It is impossible to conclude that the errors which occurred in the appellant's trial can be described as insubstantial so as to warrant dismissal of the appeal under the proviso. The appeal must be allowed.

    The disposition and orders

  90. Submission for acquittal: The appellant strongly argued that he was entitled to an order of acquittal. By reference to the defects in the conduct of his trial, the suggested errors in the suppression of material evidence, the substantial material relevant to his mental infirmity said to explain the peculiarities of his "confessions", the prolonged period he has already served in prison and the burden of a retrial on him, on witnesses and on the community, the appellant asked this Court to bring his incarceration to a close with an order of acquittal.

  91. In Dyers v The Queen[90], I collected considerations that this Court has viewed in the past as relevant, where a conviction is quashed, to adding the usual order for a new trial and, exceptionally, to omitting that course[91]. As I acknowledged there, retrial is the normal order in such circumstances. This leaves it to the prosecution, within the Executive Government, to take into account all relevant considerations and to ensure consistency in the treatment of like cases in ordering a retrial[92]

  92. In Dyers, I concluded that no new trial should be ordered in the special circumstances of that case. However, all other members of the Court joined in making the usual order. That is the order that should be made here, but in the terms, and for the reasons, expressed in the joint reasons[93].

  93. A new trial order: There remain curiosities in the evidence of the appellant in the first trial. There are issues of conflicting evidence that an appellate court cannot satisfactorily resolve. Whether, in all the circumstances, a retrial should be had, is a question properly left to the Director of Public Prosecutions. The matters disclosed in this appeal will doubtless be of assistance to him in making his decision.

  94. I agree in the orders proposed in the joint reasons.

[1] See Crimes Act 1900 (NSW), ss 474B and 474C; Crimes Act 1958 (Vic), s 584; Criminal Law Consolidation Act 1935 (SA), s 369Criminal Code (Q), s 669A; Criminal Code (Tas), s 419.

[2] Mallard v The Queen [2003] WASCA 296; (2003) 28 WAR 1 at 5 [7][8].

[3] Sentencing Act 1995 (WA), s 140(1)(a).

[4] [1989] HCA 35; (1989) 167 CLR 259 at 312.

[5] Jackson v Sterling Industries Ltd [1987] HCA 23; (1987) 162 CLR 612; Tringali v Stewardson Stubbs & Collett Ltd (1966) 66 SR (NSW) 335; Metropolitan Bank v Pooley (1885) 10 App Cas 210.

[6] [1984] AC 279 at 289-291.

[7] [2001] HCA 65; (2001) 75 ALJR 1708; 184 ALR 593.

[8] [2003] WASCA 296; (2003) 28 WAR 1 at 22 [88][90].

[9] [2003] WASCA 296; (2003) 28 WAR 1 at 37-39 [169][175].

[10] Section 570D of the Criminal Code (WA) provides:

"Accused's admissions in serious cases inadmissible unless videotaped

(1) In this section -

'admission' means an admission made by a suspect to a member of the Police Force or an officer of the Corruption and Crime Commission, whether the admission is by spoken words or by acts or otherwise;

'serious offence' means an indictable offence of such a nature that, if a person over the age of 18 years is charged with it, it can not be dealt with summarily and in the case of a person under the age of 18 years includes any indictable offence for which the person has been detained.

(2) On the trial of an accused person for a serious offence, evidence of any admission by the accused person shall not be admissible unless -

(a) the evidence is a videotape on which is a recording of the admission; or

(b) the prosecution proves, on the balance of probabilities, that there is a reasonable excuse for there not being a recording on videotape of the admission; or

(c) the court is satisfied that there are exceptional circumstances which, in the interests of justice, justify the admission of the evidence.

(3) Subsection (2) does not apply to an admission by an accused person made before there were reasonable grounds to suspect that he or she had committed the offence.

(4) For the purposes of subsection (2), 'reasonable excuse' includes the following -

(a) The admission was made when it was not practicable to videotape it.

(b) Equipment to videotape the interview could not be obtained while it was reasonable to detain the accused person.

(c) The accused person did not consent to the interview being videotaped.

(d) The equipment used to videotape the interview malfunctioned."[11]

From the Court of Criminal Appeal of the Supreme Court of Western Australia: Mallard v The Queen [2003] WASCA 296; (2003) 28 WAR 1.

[12] Pursuant to the Sentencing Act 1995 (WA), s 140 ("the Sentencing Act"). The text of the section is set out in the reasons of Gummow, Hayne, Callinan and Heydon JJ at [2] ("the joint reasons").

[13] Mallard v The Queen unreported, Court of Criminal Appeal (WA), 11 September 1996 (Malcolm CJ, Ipp and Wallwork JJ).

[14] Mallard v The Queen P52/1996 (24 October 1997) noted (1997) 191 CLR 646 (Toohey and McHugh JJ and myself). No objection was raised by either party to this appeal to my participation in the disposition.

[15] The reference of the petition to the Court of Criminal Appeal engages the jurisdiction of the Court of Criminal Appeal "as if it were an appeal by the offender". See Sentencing Acts 140(1)(a) set out joint reasons at [2].

[16] Mallard v The Queen P52/1996 (24 October 1997), special leave transcript at 2.

[17] Sentencing Acts 140(1)(a).

[18] Criminal Code (WA), s 689(1) ("the Code").

[19] Two issues argued in the Court of Criminal Appeal in 2003 were excluded by order of the Panel which heard the second special leave application (McHugh, Hayne and Callinan JJ). The first was the specific relevance of the appellant's psychiatric illness, which was propounded as an explanation of his peculiar statements and speculations in his "confessions" to police. The evidence showed that the appellant was suffering from bipolar or unipolar disorders and had spent time in Graylands Mental Institution in Perth, including at a time close to the murder of the deceased. See [2003] WASCA 296; (2003) 28 WAR 1 at 37-39 [169][176]. The second was an argument concerning the use of polygraph tests. This issue was dealt with by the Court of Criminal Appeal: see [2003] WASCA 296; (2003) 28 WAR 1 at 44-76 [201]-[374].

[20] Joint reasons at [14]-[39].

[21] ss 137-141. See also the previous provision of the Code, s 21 set out in the joint reasons at [3].

[22] s 689(1) and (2). See joint reasons at [7].

[23] s 140(1).

[24] s 689(1).

[25] [2003] WASCA 296; (2003) 28 WAR 1 at 25 [106], 29 [126], 32 [137].

[26] [2003] WASCA 296; (2003) 28 WAR 1 at 79 [387].

[27] [2003] WASCA 296; (2003) 28 WAR 1 at 16 [58].

[28] Sentencing Acts 140(1)(a).

[29] s 689(1).

[30] Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259 at 312; R v Chard [1984] AC 279 at 291. See joint reasons at [10].

[31] Joint reasons at [42].

[32] [2003] WASCA 296; (2003) 28 WAR 1 at 21 [87].

[33] Joint reasons at [35].

[34] s 24(1).

[35] No 155, 3 November 1992 at 5418.

[36] See Guidelines, par 5.

[37] Guidelines, pars 57-60. See joint reasons at [16].

[38] These reasons at [60].

[39] United Nations Guidelines, par 2(b).

[40] [1979] HCA 49; (1979) 142 CLR 659. The case came from the Full Court of the Supreme Court of Victoria, sitting as the Court of Criminal Appeal, considering a petition under s 584 of the Crimes Act 1958 (Vic).

[41] Barwick CJ, Stephen, Mason and Aickin JJ; Murphy J dissenting.

[42] [1979] HCA 49; (1979) 142 CLR 659 at 683.

[43] [1984] HCA 38; (1984) 154 CLR 563.

[44] [1984] HCA 38; (1984) 154 CLR 563 at 575.

[45] [1984] HCA 38; (1984) 154 CLR 563 at 578. The phrase used was "unsafe or unsatisfactory". See now Gipp v The Queen (1998) 194 CLR 106 at 147-150 [120]-[127].

[46] [2001] HCA 65; (2001) 75 ALJR 1708 at 1712 [16][2001] HCA 65; 184 ALR 593 at 598.

[47] [2001] HCA 65; (2001) 75 ALJR 1708 at 1713 [23][2001] HCA 65; 184 ALR 593 at 599-600.

[48] [2001] HCA 65; (2001) 75 ALJR 1708 at 1717 [46] fn 37; [2001] HCA 65; 184 ALR 593 at 605.

[49] Brady v Maryland [1963] USSC 92; 373 US 83 at 87 (1963).

[50] United States v Bagley 473 US 667 at 675 (1985).

[51] United States v Agurs [1976] USSC 137; 427 US 97 (1976); Bagley 473 US 667 at 675 (1985).

[52] Banks v Dretke [2004] USSC 11; 540 US 668 (2004).

[53] Kyles v Whitley [1995] USSC 35; 514 US 419 at 434 (1995).

[54] Kyles [1995] USSC 35; 514 US 419 at 434 (1995). See also Strickler v Greene [1999] USSC 53; 527 US 263 (1999).

[55] Agurs [1976] USSC 137; 427 US 97 at 111 (1976); Bagley 473 US 667 at 675 (1985).

[56] Agurs [1976] USSC 137; 427 US 97 at 108 (1976).

[57] Berger v United States [1935] USSC 83; 295 US 78 at 88 (1935). See also Strickler [1999] USSC 53; 527 US 263 at 281 (1999).

[58] [1991] 3 SCR 326.

[59] [1991] 3 SCR 326 at 333.

[60] R v Egger [1993] 2 SCR 451 at 466 per Sopinka J; R v Chaplin [1995] 1 SCR 727 at 739 [21] per Sopinka J; R v O'Connor [1995] 4 SCR 411 at 428 [4] per Lamer CJ and Sopinka J; R v Mills [1999] 3 SCR 668 at 716-717 [69]-[70] per McLachlin and Iacobucci JJ; R v Taillefer [2003] 3 SCR 307 at 313-314 [1] per LeBel J.

[61] R v Lyons [1987] 2 SCR 309 at 362; Mills [1999] 3 SCR 668 at 718 [72].

[62] Stinchcombe [1991] 3 SCR 326 at 336 per Sopinka J.

[63] R v Ward [1993] 1 WLR 619 at 674; [1993] 2 All ER 577 at 626. See United Kingdom, Royal Commission on Criminal Justice, Report(1993) Cm 2263 at 95 [51].

[64] Criminal Procedure and Investigations Act 1996 (UK). The procedures there provided have been amended by the Criminal Justice Act 2003 (UK). See Sprack, "The Criminal Procedure and Investigations Act 1996: (1) The Duty of Disclosure", (1997) Criminal Law Review 308.

[65] The suggested correlative need in Australia to consider immunities of the accused has been discussed: Moen, "Criminal Trial Reform - At What Cost?", (2000) 27(4) Brief 17; cf Ling (1996) 90 A Crim R 376 at 380 per Doyle CJ.

[66] [1997] UKHL 33; [1998] AC 367 at 377.

[67] [1997] UKHL 33; [1998] AC 367 at 379.

[68] McLeod v HM Advocate (No 2) 1998 JC 67 at 79 per Lord Rodger.

[69] The People (DPP) v Kelly [1987] IR 596.

[70] Ward v Special Criminal Court [1998] 2 ILRM 493 at 500.

[71] Commissioner of Police v Ombudsman [1988] 1 NZLR 385; R v Shaqlane unreported, Court of Appeal of New Zealand, 5 March 2001; R v Taylor unreported, Court of Appeal of New Zealand, 17 December 2003.

[72] R v Keane [1994] 1 WLR 746 at 751-752; [1994] 2 All ER 478 at 484 applied in HKSAR v Lau Ngai Chu [2002] HKEC 291 and HKSAR v Lee Ming Tee [2003] HKCFA 34; (2003) 6 HKCFAR 336.

[73] [1980] Australian Treaty Series No 23.

[74] Art 14.3(b) and (c). See Mabo v Queensland [No 2] [1992] HCA 23; (1992) 175 CLR 1 at 42.

[75] 213 United Nations Treaty Series 222.

[76] [1992] ECHR 77; (1992) 15 EHRR 417.

[77] [1992] ECHR 77; (1992) 15 EHRR 417 at 432.

[78] [2000] ECHR 89; (2000) 30 EHRR 480.

[79] [2000] ECHR 89; (2000) 30 EHRR 480 at 510 [44] (footnotes omitted). See discussion Hinton, "Unused Material and the Prosecutor's Duty of Disclosure", (2001) 25 Criminal Law Journal 121 at 135.

[80] Fitt [2000] ECHR 89; (2000) 30 EHRR 480 at 510-511 [45].

[81] Fitt [2000] ECHR 89; (2000) 30 EHRR 480 at 511 [45].

[82] R v H [2004] 2 AC 134 at 149-150 [21].

[83] RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 at 630 [22].

[84] Relevantly because of the terms of the Code, s 689(1).

[85] Stinchcombe [1991] 3 SCR 326 at 333; cf Berger [1935] USSC 83; 295 US 78 at 88 (1935).

[86] Kyles [1995] USSC 35; 514 US 419 at 434 (1995).

[87] [1979] HCA 49; (1979) 142 CLR 659.

[88] [2001] HCA 65; (2001) 75 ALJR 1708; 184 ALR 593.

[89] This amounts to the Court's saying, on its own authority, that the trial did not meet the standards set by law: cf Silbert v Director of Public Prosecutions (WA) [2004] HCA 9; (2004) 217 CLR 181 at 191 [26].

[90] (2002) 210 CLR 285.

[91] (2002) 210 CLR 285 at 314-316 [82]-[85].

[92] (2002) 210 CLR 285 at 316 [85].

[93] Joint reasons at [43].

The extraordinary case of Andrew Mallard

Andrew Mallard is a Western Australian who was wrongfully convicted of murder in 1995 and sentenced to life imprisonment. He was released from prison in 2006 after his conviction was quashed by the High Court of Australia.

https://lawonlineau.wordpress.com/2011/12/02/the-extraordinary-case-of-andrew-mallard/

Mallard had been convicted of the murder of Pamela Lawrence, a business proprietor, who was killed at her shop, on 23 May 1994. The evidence used in Mallard’s trial was scanty and obscure, and it was later revealed that police withheld vital information from his defence team. Almost twelve years later, after an appeal to the High Court, his conviction was quashed, and a re-trial ordered. However, the charges against him were dropped and Mallard was released. At the time, the Director of Public Prosecutions stated that Andrew Mallard remained the prime suspect and that if further evidence became available he could still be prosecuted.

In 2006 police conducted a review of the investigation and subsequently a cold case review. As a result they uncovered sufficiently compelling evidence to charge convicted murderer Simon Rochford with the murder of Pamela Lawrence and to eliminate Andrew Mallard as a person of interest. After being publicly named as a suspect, Simon Rochford was found dead in his cell in Albany Prison, having committed suicide.

The Western Australian Commission on Crime and Corruption investigated whether there was misconduct by any public officer (police, prosecutors or Members of Parliament) associated with this case and made findings against two policeman and a senior prosecutor.

 

A book about the case, “Murderer No More: Andrew Mallard and the Epic Fight that Proved his Innocence” was written by Colleen Egan, the journalist who campaigned on Mallard’s behalf for eight years. It was published by Allen & Unwin in June 2010

Evidence at the Trial

Mallard was convicted chiefly on two pieces of evidence. The first was a set of police notes of interviews with Mallard during which, the police claimed, he had confessed. These notes had not been signed by Mallard. The second was a video recording of the last twenty minutes of Mallard’s eleven hours of interviews. The video shows Mallard speculating as to how the murderer might have killed Pamela Lawrence; police claimed that, although it was given in third-person, it was a confession.

Mallard had no history of violence; no murder weapon had been found. No blood was found on Mallard, despite the violence of the murder and the crime scene being covered with it. Nor was DNA evidence produced. He was convicted on the confessions purportedly given during unrecorded interviews and the partial video-recording of an interview. Despite this, Mallard’s appeal to the Supreme Court of Western Australia, in 1996, was dismissed.

Investigation

In 1998, Mallard’s family enlisted the help of investigative journalist Colleen Egan, who in turn managed to get John Quigley MLA and Malcolm McCusker QC involved. All were appalled at the manner in which Mallard’s trial had been conducted and eventually came to be convinced that he was innocent. Based on fresh evidence uncovered by this team, including a raft of police reports that, against standard practice, had never been passed to the defence team, the case was returned to the Court of Criminal Appeal in June 2003. Despite the fresh evidence and an uncontested claim that the DPP had deliberately concealed evidence from the defence, the Court of Criminal Appeal again dismissed the appeal.

High Court Appeal

 In October 2004, Mallard’s legal team was granted special leave to appeal to the High Court of Australia and on 6 and 7 September 2005, Mallard’s appeal was heard in the High Court and the Justices subsequently judged unanimously that his conviction be quashed and a re-trial be ordered. During the hearing, Justice Michael Kirby was reported to have said that on one of the pieces of evidence alone – a forensic report, not disclosed to the defence, showing that Mallard’s theory about the weapon used in the murder could not have been true – a re-trial should have been ordered.

The DPP did not immediately drop charges against Mallard but did so six months later immediately before a directions hearing was due. After almost twelve years in prison, Mallard was released on 20 February 2006. However in announcing that the trial would not proceed the DPP stated:

“Finally, I note for the record and for the future that this decision is made on evidence presently available to the prosecution. The discharge of Mr Andrew Mallard on this charge does not alter the fact that he remains the prime suspect for this murder. Should any credible evidence present in the future which again gives the state reasonable prospects of obtaining a conviction again, the state would again prosecute him.”

The Police Commissioner apologised to Mallard for any part the police had played in his conviction. The Premier indicated that the government would be considering compensation, though the Attorney General stated that no decision could be made until the Commission on Crime and Corruption had completed its investigation. However, on 22 November 2006, the Adelaide advertiser carried an AAP story stating that Andrew Mallard had received a A$200,000 ex-gratia payment as partial compensation.

In May 2009 Andrew Mallard was offered a payment of $3.25 million as settlement though the Premier of the state, Colin Barnett said that were Mallard to take civil action against those he held responsible for his wrongful conviction, the government would support any servant of the state in that event.

But the damage was done. lets hope this doesn’t happen again.

 

What was Andrew Mallard accused of doing and how did he prove his innocence?

Posted 

https://www.abc.net.au/news/2019-04-20/andrew-mallard-accused-of-and-how-did-they-prove-he-was-innocent/11033294

Andrew Mallard

Andrew Mallard was released after a journalist and politician investigated his case.(ABC)

The circumstances of Andrew Mallard's wrongful murder conviction have been thrust back into the spotlight with the death of the Western Australian in the United States.

Mr Mallard, who died at 56 in a hit-and-run crash in Los Angeles this week, served 12 years in jail for the 1994 murder of Perth woman Pamela Lawrence.

His lengthy fight to have his name cleared was the subject of the two-part Australian Story episode The Wronged Man, highlighting the lengths a politician and a journalist went to to prove his innocence.

How did he become accused of murder?

Ms Lawrence was bludgeoned to the head in broad daylight on the afternoon of Monday May 23, 1994, at her jewellery shop Flora Metallica. She died hours later in hospital.

The death sparked a manhunt, with Mr Mallard among the initial 136 suspects.

Mr Mallard had been living on the streets after suffering a nervous breakdown. He came to the attention of police when he was placed in Graylands Psychiatric Hospital after attempting a burglary where he impersonated a police officer.

He was arrested for murder after several interviews with police, where he speculated how Ms Lawrence may have been killed and drew a picture of a wrench which police said he used to kill her.

Mr Mallard said he was fed information by police to repeat back to them but police treated it as a confession and he was sentenced to 20 years jail.

Who assisted Mr Mallard in clearing his name?

Mr Mallard's appeals against his conviction failed in both the Supreme Court and High Court.

But his family approached journalist Colleen Egan, who investigated the case alongside then-WA shadow attorney-general John Quigley.

Mr Quigley's previous career representing police officers for the West Australian Police Union provided insight into police procedural failings in the case.

Through political pressure, he was able to gain access to the prosecution files on the case and found crucial evidence that was not disclosed at trial.

How did they prove he was innocent?

Along with an alibi, the team presented a pattern of manipulation of evidence against Mr Mallard.

Among the prosecution files was a conclusion by a pathologist that a wrench could not have caused Ms Lawrence's injuries, after a test had been conducted on a pig's head. The test had been kept from court.

After the team were able to access police files, they discovered original witness statements did not correspond with second and third statements which were presented to court.

In November 2005 the High Court quashed Mr Mallard's conviction and declared a miscarriage of justice occurred.

In February the next year, the case against Mr Mallard was dropped by prosecutors, who maintained he was the prime suspect.

Did they find who murdered Ms Lawrence?

Police later admitted Mr Mallard wasn't responsible for the crime after a cold case review of Ms Lawrence's murder found shavings of blue paint recovered from her head matched paint from the knapsack of murderer Simon Rochford.

Rochford had been serving life in prison for killing his girlfriend seven weeks after Ms Lawrence's murder.

Her injuries were similar to those suffered by Ms Lawrence and had been inflicted by a makeshift weapon Rochford kept in his knapsack.

Days after he was questioned by police over Ms Lawrence's murder, Rochford killed himself in jail.

What did Mr Mallard do after he was freed?

Having received $3.25 million in compensation from the Western Australian government, Mr Mallard graduated from university with a degree in fine art and travelled to London to start a masters.

He told Australian Story that living in Perth had become "untenable", as members of the public still treated him as if he was a murderer.

Mr Mallard was still based in the UK and frequently travelled to the US, where his fiancee lived, prior to his death.

A Corruption and Crime Commission inquiry was held into the alleged misconduct by police officers in the case but the officers resigned from WA police after a police inquiry began, avoiding the disciplinary process.

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

https://www.ccc.wa.gov.au/sites/default/files/Report%20on%20the%20inquiry%20into%20alleged%20misconduct%20by%20public%20officers%20in%20connection%20with%20the%20investigation%20of%20the%20murder%20of%20Mrs%20Pamela%20Lawrence%2C%20the%20prosecution%20and%20appeals%20of%20Mr%20Andrew%20Mallard%2C%20and%20other%20related%20matters_0.pdf

7 October 2008 

CORRUPTION AND CRIME COMMISSION

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 This email address is being protected from spambots. You need JavaScript enabled to view it. Office Hours 8.30 a.m. to 5.00 p.m., Monday to Friday

Mr Malcolm Peacock

Mr Peter John McHugh Clerk of the Legislative Council Clerk of the Legislative Assembly Parliament House Parliament House Harvest Terrace Harvest Terrace PERTH WA 6000 PERTH WA 6000

Dear Mr Peacock

Dear Mr McHugh

As neither House of Parliament is presently sitting, in accordance with section 93 of the Corruption and Crime Commission Act 2003 (“the Act”), the Commission hereby transmits to you a copy of the 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. The opinions, assessments and recommendations contained in this report are those of the Acting Commissioner on behalf of the Commission. The Commission notes that under section 93(3) of the Act a copy of a report transmitted to a Clerk of a House is to be regarded as having been laid before that House.

Yours faithfully The Hon J R Dunford QC

ACTING COMMISSIONER

7 October 2008

 

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 Submissions 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 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 

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

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

14.2 Recommendations …………….……....………………………..….. 165

14.3 Acknowledgements …...……………………………………….….... 166

ENDNOTES ………………………………………………………………..... 167

EXECUTIVE SUMMARY

 

[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.

[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. xvii [12] In the period leading up to 23

 

[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 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 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 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 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 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 

(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:

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.

[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.

2.2 Reporting by the Commission

[21] Section 23 of the CCC Act provides that the Commission must not publish or report a finding that a person has committed a criminal or disciplinary offence; and a finding of misconduct is not to be taken as a finding or opinion of the Commission that a criminal or disciplinary offence has been committed.

[22] By section 84(1) the Commission may prepare a report on any matter that has been the subject of an investigation or other action in respect of misconduct, and by section 84(3) it may include in such a report statements as to any of its assessments, opinions and recommendation and the reasons for them.

[23] The words “assessments” and “opinions” are a reference back to section 22 of the CCC Act, which states that the Commission may make assessments and form opinions as to misconduct including whether misconduct has or may have occurred. The “recommendations” which may be made by the Commission are recommendations as to whether consideration should or should not be given to the prosecution or taking of disciplinary action against persons, or for the taking of other action the Commission considers should be taken in relation to the subject matter of its assessments or opinions or the results of its investigations (section 43(1)).

2.3 Reaching an Opinion: Standard of Proof

[24] An opinion formed by the Commission under the CCC Act that misconduct has occurred is a serious matter. It may affect individuals personally and professionally. It has the capacity to affect relations between those whom the Commission has adversely mentioned, and their families, friends and acquaintances. Accordingly, there is a need to exercise care in forming opinions as to the occurrence of misconduct, or other adverse findings.

[25] Although it is not a judicial tribunal and its opinions therefore do not have any direct legal effect so that standard of proof is not strictly relevant in reaching any opinion as to “misconduct” as defined in the CCC Act, the Commission has applied the test laid down for civil cases of a serious nature in Briginshaw v Briginshaw (1938) 60 CLR 336, namely proof on the balance of probabilities to the “reasonable satisfaction” of the Commission.

[26] Another issue raised in submissions is whether the Commission can or should express opinions on conduct falling short of misconduct. In particular it was submitted that any findings (or presumably, opinions) in the Report which do not amount to findings (or opinions) of misconduct are impermissible, and reference was made to the Joint Standing Committee on the Corruption and Crime Commission: Parliamentary Inspector’s Investigation and Review of the Acts and Proceedings of the Corruption and Crime Commission concerning Mr John D’Orazio. 6 In that Report, and also in a subsequent Report,7 the Parliamentary Inspector has expressed the opinion that the CCC has no power to form or report an opinion of “inappropriate conduct” falling short of “misconduct” by a “public officer”.

[27] This opinion appears to be somewhat different to that of Ms Gail Archer SC in her Review of the Corruption and Crime Commission Act 2003 (February 2008) who considered8 that the CCC has at the very least the power to report such conduct (i.e. inappropriate or undesirable conduct not amounting to “misconduct”), but considered it unnecessary to determine whether that power extends to expressing an adverse opinion about such conduct. 

[28] This is a broad ranging inquiry relating to the conviction and lengthy imprisonment for wilful murder of an innocent person, and it is therefore essential to refer to and discuss the whole process of the investigation and trial of that person, including matters which may or should have been handled or dealt with differently, and whether or not they amounted to “misconduct” by “public officers”. A failure to do so would render the Report incomplete and the Inquiry unsatisfactory.

[29] Accordingly, conduct by “public officers” not amounting to “misconduct” is referred to and discussed where appropriate, including discussion as to how such conduct did, or may have, impacted on the investigation and trial and, where applicable, why such conduct did not in the opinion of the Commission amount to “misconduct”.

[30] As might reasonably be expected in the case of an inquiry into events which occurred up to 14 years ago, there were occasions when witnesses professed that they could not remember the event, or details about which they were being questioned. In many cases their memories were prompted by being shown contemporaneous documents; but in other cases the Commission had to make an assessment of whether the loss of memory was genuine. In making such an assessment the Commission took into account the natural tendency for memory to fade over a lengthy period of time, the apparent importance to the witness, at the time, of the event or detail, and a comparison with the events or details which the witness was able to remember; although the Commission cannot but observe that a number of witnesses professed lack of memory for what they might have done, but claimed an almost infallible memory of what they did NOT do. This lapse of time and possible loss of memory are of particular significance in considering circumstantial evidence where there may have been an explanation, since forgotten, for events which on their face appear to be incriminating.

[31] In fairness to the police investigation team, and Det Sgt Shervill in particular, it should be placed on record that the investigation and unravelling of facts which occurred so long ago were only possible to the extent which in fact occurred on account of the detailed recording of the investigation in the Major Crime Running Sheet9 and the Comprehensive Summary of Facts10 both prepared by Det Sgt Shervill, and the fact that the earlier statements of the various witnesses had been kept and not destroyed, although, having regard to the practices at the time, he would never have expected them to be disclosed to the defence or to a body such as the present Commission. Without these sources the Commission’s task after such a lapse of time would have been virtually impossible.

2.4 Procedure

[32] Section 135 of the CCC Act provides that the Commission is not bound by the rules of evidence and may inform itself by such means as it sees fit. In this  case the Commission’s investigation has been substantial and it has informed itself by a number of different methods. Those methods have included obtaining and reviewing numerous files and other documents from the Western Australia Police (WAPOL), the Legal Aid Commission and the DPP’s Office. 

[33] In addition, the Commission has had access to, and taken into account, the evidence, judgements and reports relating to this matter of a number of courts and other bodies including:

1. the Preliminary Hearing in January 1995;

2. the Voir Dire before Murray J in October 1995;

3. the trial before Murray J and a jury in November 1995;

4. the appeal before the Court of Criminal Appeal in June 1996;

5. investigations by the Ombudsman into complaints made by Mr Mallard;

6. a preliminary investigation by the Police (Kennedy) Royal Commission in 2002;

7. the appeal to the Court of Criminal Appeal in 2003;

8. the appeal to the High Court in 2005;

9. the analysis and review of the case by the Special Crime Squad, being the Lawrence Homicide Review and the Cold Case Review; and 10. the investigation into the death of Brigitta Dickens and the transcript of the trial of Simon Rochford.

[34] The Commission has also examined a number of witnesses on oath or affirmation at both private and public hearings and those public officers whose activities may have amounted to misconduct have had the opportunity, through their counsel, to cross-examine the witnesses whose evidence related to them. Andrew Mallard himself was interviewed by officers of the Commission on three separate occasions and examined on oath at a private hearing. He was not called as a witness for examination in public because it was not considered desirable to subject him to lengthy cross-examination by a number of separate counsel; and having allegedly confessed to a murder he did not commit at a time when he was mentally ill and using cannabis and possibly other drugs, he could hardly be regarded as a reliable witness. Moreover, through his solicitors, he expressed a reluctance to give evidence in public and be subject to the further media scrutiny which that would necessarily involve. 10

[35] At the conclusion of the public examinations, Counsel Assisting made oral submissions as to what adverse findings should be made in respect of particular persons, after which Counsel for those persons affected addressed in reply. They were invited to supplement their public addresses by Written Submissions, which they did. This first series of Written Submissions is hereinafter referred to as “Written Submissions”.

[36] Following the receipt and consideration of the Written Submissions the Commission prepared a draft report, and in accordance with section 86 of the CCC Act notified the persons against whom it was contemplating reporting matters adverse to them of such matters, and gave them the opportunity to respond, which most of them have done. Such responses, hereinafter referred to as the “Section 86 Submissions” have been taken into account in preparing this report.

[37] Although the Commission has had the assistance of Counsel Assisting since the conclusion of the public hearings in responding to the written submissions, researching the relevant law and, along with other staff of the Commission, in checking transcript and other documents, proof reading and other administrative tasks, the opinions and recommendations contained herein are solely those of the Acting Commissioner, who accepts full and sole responsibility for them. 2.5 Miscellaneous

[38] The Commission in its investigations, and public and private hearings, examined a number of issues relating to the investigation and trial of Andrew Mallard which are not the subject of discussion in this report. That is because, having regard to the lapse of time and the lack of documentation, the evidence was inconclusive; or upon such examination as was possible, the issue appeared minor, was not significant in the conviction of Andrew Mallard, or failed to yield any significant evidence of misconduct.

[39] It is not the function of the Commission to assess or consider the judgements or findings of any court or judicial officer, and it has not attempted to do so. That is the proper function of the court appeal processes and, in any event, section 27(3) of the CCC Act prohibits such examination, except in the very limited circumstances therein specified, which have no application to the circumstances of this matter.

 

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 FOUR

THE CRIME SCENE AND FORENSIC PROCEDURES

4.1 The Shop and Business

[53] Flora Metallica was in a cluster of shops close to the Stirling Highway end of Glyde Street, and close to Mosman Park railway station. There was a taxi rank adjacent to the railway station. Flora Metallica was within walking distance of the flat in which Mr Mallard had been staying over the previous weeks.

[54] By May 1994, Mrs Lawrence had been the proprietor of Flora Metallica for some four years. The business specialised in encasing nuts, leaves and other organic material in metal and manufacturing them into jewellery.

[55] The manufacturing process used by the business involved electrolytic and chemical processes of plating or coating the natural organic material with valuable and decorative metals, principally gold. The process involved the plating of the material either at the site (in the case, for example, of gold or copper plating) or offsite (in the case of silver plating). An array of bush items, particularly those of an iconic nature such as gum nuts and wattle, were plated and made into broaches and ornaments.

[56] The premises in which the business was conducted consisted of four parts. The first was a very large, long but substantially empty backyard extending from the rear of the premises to a back lane.

[57] The second part of the premises was a lockable shed which was in the backyard within metres of the rear of the shop. It was in that shed that Mrs Lawrence carried out the manufacturing process. It contained an electrolytic bath and racks from which items would be hung or suspended in the bath during the electrolysis process, workbenches, shelving with items on it used in the manufacture of jewellery and various other items that had plainly accumulated over the years.

[58] The third and fourth parts of the premises were the areas inside the shop itself which was divided into two by shop furniture such as display boards. At the rear of the shop was a general storage and workshop area from which the public were excluded. No sign prohibited entry to it, but by the furnishings and the area of display, it was obviously a private rather than a public area. It constituted a little less than half of the shop area.

[59] The final part was the retail display or public area of the shop in which there were glass cabinets for displaying the jewellery and a display board which also acted as a divider between the front and rear of the shop.

[60] There was a front door to the shop from Glyde Street. The only windows into the premises were the two front display windows. There was a rear door at the 16 back of the shop onto a tiny landing with five steps down to the backyard and a few paces from the lockable outward opening door of the shed.

[61] Mrs Lawrence was, at the time of the assault, aged 45. She was in a happy, stable, long term marriage to Mr Peter Lawrence. They had two teenage daughters and lived in a house only minutes from Flora Metallica. By every account Mrs Lawrence was a popular, well liked person and there were no persons known who might wish to harm her.

4.2 23 May 1994

[62] On 23 May 1994, Perth was lashed by a huge storm with torrential rains. Winds uprooted trees and the storm interfered with power lines and traffic. Areas of Perth were blacked out including, later in the evening, the premises of Flora Metallica. The storm became an important memory peg in the minds of witnesses later interviewed by police.

[63] The only other person working in the shop on 23 May 1994 was Mrs Jacqueline Barsden. She left work at approximately 3pm, leaving Mrs Lawrence working in the shed. The system at the shop was that, on such occasions, when the shop was unattended, the front door would be locked and Mrs Lawrence could be contacted via intercom.

[64] Mrs Lawrence usually came home between about 5 and 6pm. She would be sometimes detained by her work either in the shed or making telephone calls from the shop to customers. Indeed she made such a call that afternoon, said to be between 5.05 and 5.20pm, to a Mr and Mrs Whitford.

[65] Some time after 6pm, probably closer to 6.30pm, Mr Lawrence telephoned the shop to see what time his wife was coming home. When he rang, there was no answer and the phone had not been switched to the answering machine. He felt some concern and decided to drive down to the shop.

[66] When he arrived, it was apparent that the business had not been closed for the night. The light was on inside the shop, a mat, a pot plant and an A-frame sign were all still outside the front of the shop, as was a hanging sign over the door. Mr Lawrence had to use a key to enter the front door. He did so and took in with him the pot plant and the A-frame sign.

[67] At some point shortly after entering the shop he heard a sound, moved to the rear of the shop and found his wife on the floor close to the back door in a substantial pool of blood with obvious severe injuries to her head. He moved to attend to her, placed a cloth over the wounds and altered her position into one of recovery. He than made a 000 call at 6.37pm calling for an ambulance and police.

[68] Two uniformed police officers, Cons Susan Debnam and Cons Shaun Staples arrived at Flora Metallica at 6.42pm, or five minutes after the conclusion of the 17 000 call. The officers were shown to the rear of the shop where they attempted to assist with containing Mrs Lawrence’s bleeding.

[69] Two ambulance officers arrived at 6.47pm or just nine minutes after the end of the 000 call23. At this stage it would appear that there was still electric light in the premises, although it was soon to fail as part of the blackout.

[70] The ambulance officers, the police officers and Mr Lawrence altered Mrs Lawrence’s position by moving her body through an angle of 90 degrees so that she could be more easily assessed and assisted. This inevitably contaminated the site from a forensic point of view, but this is a well known and accepted problem created by giving priority to the medical welfare of the victim. It was as true in 1994 as it is now.

[71] Within a short time Mrs Lawrence was placed in an ambulance and taken to Sir Charles Gardiner Hospital by Cons Debnam, but as previously noted life was pronounced extinct at 7.15pm that evening.

 4.3 Arrival of Other Officers
[72] From 7.20pm, other officers commenced to arrive, including Sgt Ian Trinder. It was he who had the task of informing Mr Lawrence that his wife had died. Shortly afterwards, Mr Lawrence returned home with the consent of officers at the scene.
 
[73] The three officers who were to form the forensic team also arrived shortly afterwards namely Sgt Hofstee, Sen Cons Greg Walker (fingerprint expert) and Cons Ward (photographer). However, by that stage the scene was in total darkness following a blackout. The Tactical Response Group arrived with temporary lighting, but a decision was made (of which no criticism can be made) to close and secure the scene until proper light was available the following day. It had been raining on and off during the evening and night. Any footprints in the piles of sand in the backyard would have been washed away in any event.
 
[74] During that evening officers from the Major Crime Squad arrived at the scene. Det Sgt John Brandham was at the time the acting Officer in Charge of the Major Crime Squad. As a result of a conversation on the footpath outside Flora Metallica, he allocated the matter to Det Sgt Malcolm Shervill as Case Officer.
[75] Meanwhile, Det Sgt Shervill and another officer went to Mr Lawrence’s house where they endeavoured to interview him, but were unsuccessful due to the distress in the household at the time. They abandoned the attempt28.
 
4.4 Mr Lawrence
[76] One aspect of the initial examination of the crime scene and early investigation which has been questioned from time to time, particularly by Mr 18 Mallard’s representatives at the time of the 2003 Clemency Appeal, has been that Mr Lawrence was not properly investigated as a potential person of interest for the murder of his wife.
 
[77] The spouse of a murder victim where the offender is unknown would naturally be a potential person of interest for the offence. Mr Lawrence appears to have been a person of interest, so far as the police investigation was concerned, at a technical level only. His clothing was not sought until two days after the event. When he was asked to produce the clothing he did so by extracting it from a rubbish bin where he had thrown it on the night of the offence. His clothing was piled into one bag thereby interfering with any reasonable blood pattern analysis. It should have been collected on the night of the offence and each item treated separately.
 
[78] The police may initially have formed the view that Mr Lawrence was not the offender and only followed him up later when no one else was emerging as a possible suspect. His car was not searched or analysed until some time after the event. When a weapon could not be found his house was not searched. No statements were taken from members of the family until very late and one daughter was never approached for a statement.
 
[79] The police were undoubtedly right if they did form a view that Mr Lawrence was not the offender, but the late investigation of him was unfortunate.
 
[80] The hypothesis that he might have been the offender has now been conclusively and comprehensively rejected by the findings of the Cold Case Review. It is manifestly a correct finding. Whatever criticism might have been made in the past of the manner in which Mr Lawrence was treated in the immediate aftermath of the offence, it could not, on any view, amount to “misconduct” within the meaning of the CCC Act. 4.5 Autopsy
 
[81] That night Mrs Lawrence’s body was transferred to the mortuary and the senior forensic pathologist, Dr Cooke attended at 10pm to carry out a preliminary examination of her wounds29. The post-mortem examination was completed the following day. [82] In his autopsy report, dated 24 May 199430, Dr Cooke reported severe injuries to the head with at least twelve cuts to the scalp. He also reported finding turquoise blue/green material in seven of the twelve lacerations and a blue/grey material in one of the other injuries. That material could not be seen with the naked eye but only under a dissecting microscope. [83] Samples were sent to the forensic chemist, Mr Lynch who later described the fragments as an oil based orthophthalmic alkyd enamel paint, containing Prussian blue pigment
 
[84] After the autopsy on 24 May but still on the same day, Dr Cooke was shown by a police officer what was later called an anode. He reported: I am subsequently shown a metal bar weighing 2.7 kilograms. The surface of the bar is partly covered with grey coloured material as well as blue-coloured crystals (copper sulphate). The bar is partly flattened in profile, broadening to shoulders at one end. A comparison is made between some of the injuries to the scalp and this end of the bar. An anode is a lump of pure metal used in the electrolytic process in the shed behind Flora Metallica. The precise anode shown to Dr Cooke cannot now be established, but a number of anodes were present in the Flora Metallica shed and were photographed. The particular anode shown to Dr Cooke was not suggested to be the weapon, but was one of many found in the shed.
[85] For some time Dr Cooke considered that an anode was possibly the weapon32, in part because he considered its shape matched part of the injuries on Mrs Lawrence’s head. He continued in that view until testing on a pig’s head occurred on 24 June 1994. That testing, which will be considered in some detail later, demonstrated that an anode could not have been the weapon.
 
4.6 Forensic Work
[86] Over the next two days the crime scene was under the control of the forensic team led by Sgt Hofstee34. The fingerprint expert, Sen Cons Walker, was also appointed exhibits officer. As the fingerprint expert he made up and maintained the forensic file. There was a standard one page Crime Scene Report35 which appears to have been completed by him. The form is notable for the absence of detail it requires and is apparently quite different from any form serving the same purpose used at the present time.
 
[87] It is apparent from the form that fingerprints of some type were taken from three sites, but the form does not disclose whether what was lifted was finger or palm prints, where the prints were lifted from (other than the door, counter, sign), whether they were partial or whole, or indeed any detail concerning them.
 
[88] The box indicating that the form had been given to the officer in charge is not ticked but Det Sgt Shervill is of the view that he probably received the form, although he has no recollection of doing so36.
[89] Sen Cons Walker identified the prints which he lifted by marking and dating them on the plaques which he then kept in his file. One of the prints he lifted was a partial palm print left on the glass counter of the shop which in 2006 was identified as belonging to Simon Rochford37. 20
[90] The murder of Mrs Lawrence, occurred seven weeks before Simon Rochford’s assault on Brigitta Dickens. His prints were not at that stage on the Australian Fingerprint Identification System (AFIS). If the palm print had been submitted for identification at that time it would not have produced a match. In fact, there was no facility for matching palm prints prior to April 2001 other than by manual comparison to those of a particular suspect whose prints were already recorded.
[91] It apparently did not occur to anyone to check the palm print against those of Simon Rochford after the latter was arrested on 18 July 1994; but at that time the investigating police were contemplating charging Andrew Mallard (he was arrested the following day) and there were no apparent links between the murders of Pamela Lawrence and Brigitta Dickens. No criticism can be levelled at any police officer for failure to identify the palm print prior to 2002.
 
[92] The plaques of those fingerprints and the palm print, in accordance with the system then in existence, were retained in the forensic file created by Sen Cons Walker. At that time liaison between the crime scene forensic officers and the investigating officers was informal and a forensic file was not regarded as a police file for retention in a central system. Fingerprint files remained with the individual officer. This system has since been changed and all forensic files are now retained in a centralised forensic system.
 
4.7 Conclusion of Forensic Work
[93] Although no formal system of reporting or handover seems to have existed between forensic officers who controlled the crime scene until their work was complete and the detectives who thereafter investigated, the forensic team seems to have finished their work by 25 May 1994, or two days after the murder.
 
[94] The result of the forensic work was that the scene produced a body of information about the offence, but no information whatever about the identity of the offender. There were no identifiable footprints inside or outside of the premises. The offender had not left anything that amounted to an identifiable weapon either in the premises or in the suburban area around it. No blood was found, other than that of Mrs Lawrence.
[95] The useful facts which emerged were that Mrs Lawrence had been hit firstly in the public area of the shop, probably while standing, she had then fallen and been struck again, then dragged to the back of the shop and struck further blows. The precise time of the assault could not be determined by the forensic pathologist, other than that the assault had probably occurred more than half an hour before Mr Lawrence arrived. That conclusion was drawn by an analysis of the amount of blood lost and by the presence of blood in Mrs Lawrence’s lungs.
[96] It was not known whether the offender had arrived or left by the front or rear door. The nature of the weapon was unknown. The motive was not obvious 21 because only her brown purse had been removed from her bag, whilst a container with cash in it was visible on a shelf behind one of the counters and was untouched. No jewellery appeared to have been stolen, although there was jewellery on a shelf available to be removed with ease.
 
[97] It was not known at the time whether the offender was wearing gloves, was left or right handed, nor what he or she was wearing. Nothing at the crime scene linked Andrew Mallard to the offence. 
 
CHAPTER FIVE THE EARLY POLICE INVESTIGATION
Introduction
[98] As already noted, members of the Major Crime Squad were called in to take charge of the investigation and it was assisted by detectives from Claremont CIB. Apart from Det Sgt Brandham (acting officer in charge of the Major Crime Squad) and Det Sgt Shervill (case officer), other officers who worked virtually full time on the investigation were Det Sgt Caporn, Dets Emmett, Carter, Ripp, Dorosz, Gooden, Potts, Young, Howard and Miller. Those more directly involved with the investigation of Mr Mallard were the two teams of Det Sgt Caporn with Det Emmett and Det Sgt Brandham with Det Carter.
 
5.1 Katherine Barsden
[99] The first witness to come forward was Miss Katherine Barsden, then aged thirteen, who is the daughter of Jacqueline Barsden, the employee of Flora Metallica who had been working in the shop until 3pm on the day of the murder.
[100] At approximately 5pm on the evening of the murder, Miss Barsden had been collected from her school in Mosman Park by her grandmother (Mrs Wood) in the latter’s light green Corolla Seca sedan and driven home via Glyde Street. As the car stopped in traffic opposite Flora Metallica, Miss Barsden looked in the shop window. When she did so she saw a man standing in an area of the shop not normally accessible to the public. He appeared to be alone, and when he seemed to see her, he bobbed down. He did not stand up again whilst the vehicle remained stopped.
 
[101] When she returned home, Miss Barsden spoke to her mother about what she had seen and drew a number of sketches of the man that she had seen.
 
[102] The following morning the Barsden family learnt of Pamela Lawrence’s death and contacted the police. Det Sgt Greenshaw and Det Miller thereupon attended the Barsden residence and Det Miller took a statement from Miss Barsden42. The drawings she had done the evening before were retrieved from the family garbage bin and she also drew some fresh sketches in Det Miller’s presence.
[103] In her statement (which she read and signed as correct) she described the person she saw as: … about 30-35 years, medium build, fair complexion….He had a longish type face with a beard. The beard was a short one, not a long type. It was orangy-red or strawberry in colour.
He was wearing a gypsy type scarf over his hair. The scarf looked of a light material and had an orangy type border around the edge. The rest of the scarf was mixed coloured with blue, green and a cream colour. The scarf was tied tight over his hair.
 
[104] The sketches she had drawn the night before and the fresh sketches which she had drawn in the presence of Det Miller were attached to her statement. Those sketches showed a man with a beard but no moustache and the scarf fitting tightly around his forehead. On one of the sketches drawn that morning she wrote: Solid border – scarf orangy colour, some green and blue in the pattern. Scarf on his head tied like a gypsy. Could not see hair. Fair complexion, medium build, 30-35 years. A sketch she did of the scarf indicated the “solid border” was “orangy/red” and the pattern inside the border was “blue, green, blue/silver/white”.
 
[105] Later that day, Miss Barsden was taken to a police artist where a representation (identikit) was prepared after several hours of consultation between them43. This identikit representation also showed a man with a beard but no moustache and with a scarf fitting tightly over his forehead, looking like a bandana, although Miss Barsden never used the term ‘bandana’.
[106] Following attendance at the police artist, Miss Barsden returned to the office with Detective Miller and signed a typed written version of her statement which was in identical terms to the handwritten version44.
[107] On Friday, 3 June 1994 Miss Barsden was shown a photograph display of a number of persons including Andrew Mallard. She did not identify him as the person she had seen in Flora Metallica on 23 May. No statement relating to this was taken from Miss Barsden, nor made by the police officer (Det Sgt Greenshaw) who observed the process, and no evidence of this photograph display being shown was given in the trial.
 
[104] The sketches she had drawn the night before and the fresh sketches which she had drawn in the presence of Det Miller were attached to her statement. Those sketches showed a man with a beard but no moustache and the scarf fitting tightly around his forehead. On one of the sketches drawn that morning she wrote: Solid border – scarf orangy colour, some green and blue in the pattern. Scarf on his head tied like a gypsy. Could not see hair. Fair complexion, medium build, 30-35 years. A sketch she did of the scarf indicated the “solid border” was “orangy/red” and the pattern inside the border was “blue, green, blue/silver/white”. [105] Later that day, Miss Barsden was taken to a police artist where a representation (identikit) was prepared after several hours of consultation between them43. This identikit representation also showed a man with a beard but no moustache and with a scarf fitting tightly over his forehead, looking like a bandana, although Miss Barsden never used the term ‘bandana’.
 
[106] Following attendance at the police artist, Miss Barsden returned to the office with Detective Miller and signed a typed written version of her statement which was in identical terms to the handwritten version44.
 
[107] On Friday, 3 June 1994 Miss Barsden was shown a photograph display of a number of persons including Andrew Mallard. She did not identify him as the person she had seen in Flora Metallica on 23 May. No statement relating to this was taken from Miss Barsden, nor made by the police officer (Det Sgt Greenshaw) who observed the process, and no evidence of this photograph display being shown was given in the trial.
 
5.2 General Enquiries
[108] Commencing with this investigation, the Major Crime Squad operated a case management system, known as HOLMES, to maintain records of complex inquiries such as that involving the murder of Mrs Lawrence. Although it had not been used previously in Western Australia, it was used in this investigation at the instigation of Det Sgt Shervill as he knew of its use in England45. No deficiencies in the investigation can be attributed to the use of HOLMES. The system, in broad terms, collected information obtained as part of the investigation and generated sequentially numbered actions to be carried out by investigation teams.
 
[109] On the morning following the murder, the police made a public appeal for help, and consequently they received a number of calls from members of the public which were duly entered into HOLMES and the follow ups allocated to particular officers46. In this way a number of persons, having been nominated by members of the public were interviewed, and most were able to account for their movements on 23 May. After their alibis were checked out by police, they were written off as persons of interest and such fact noted in HOLMES. Simon Rochford was not nominated in any such process.
[110] A lot of the information received by police related to persons whom witnesses reported seeing in the area on the afternoon and evening of the murder. In most cases, the witness was interviewed and a statement taken, including a description of the person observed.
[111] Andrew Mallard was one of the persons nominated as the possible offender, but before dealing with him it is desirable to consider the police action in respect of Lloyd Harvey Peirce. 
 
5.3 Lloyd Harvey Peirce
[112] On the night following the murder (24 May 1994) Cons Martin, one of the police guarding the scene to protect it from interference during the course of the forensic investigation, was approached by a resident of the block of flats on the corner of Stirling Highway and Glyde Street who said that he had some information about a man he had seen on the afternoon of the murder. His details were taken in the normal way. He gave his name as Lloyd Harvey Peirce and his address. [113] The report was recorded in HOLMES47 and included the following: He said that at about 18:00 on 23 May 1994 he watched a Caucasian male run from the alley way behind the jewellery store across the road to the way that leads up the train station. There he appeared to have an argument with a Taxi Driver (he was waving his arms about). He then ran off and waited for a train and boarded the one heading for Fremantle. He is described as reasonably young (less than 30) collar length blonde wavy hair that appeared natural in colour wearing board shorts of a dull colour and a windcheater that was either grey or purple. He was wearing brown ankle high hiking boots black socks and was carrying a canvas backpack type bag that appeared to be full. Complexion was medium, height was approximately six foot and medium to light in build. The information was allocated to Det Sgt Caporn and Det Emmett to investigate.
[114] Det Sgt Caporn thereupon sought and obtained a warrant to search Mr Peirce’s residence for a “weapon and blood stained clothing”; claiming there were reasonable grounds for believing such items would afford evidence of wilful murder. In support of the complaint48, he swore that he had “received nformation from a reliable source, that the said property is contained at the address shown on the face of this warrant”. [115] The warrant was executed, but no items were seized apart from some blood stained jeans which, when examined, did not advance the investigation. Mr Peirce gave a statement, written out by Det Emmett in the usual way, which he signed49. The return of the warrant signed by Det Sgt Caporn recorded that nothing was seized. [116] That statement provided information consistent with the information given to Cons Martin the night before, but in more precise detail. It was as follows: Around 5:15pm I was playing my guitar and standing looking out of my sliding door to the flat. It overlooks Stirling Highway next to the Mosman Park train station. I saw a bloke, run from our flats car park area across Stirling Highway to the train station. He nearly got hit by a car. It was raining. He went to a taxi before going to the train station. He was waving his arms about as if he was agitated. He was described as about 20-25 years old about 6 foot maybe a bit shorter medium build, collar length hair, he was wearing I think brown boots, black socks, board short (sic), I don’t know what colour they weren’t bright, either grey or purple, sloppy joe top. He was carrying a backpack over his shoulder. He then left the taxi and ran to the train station. The train took off a short time later. The blonde bloke got on a train straight away it was heading to Fremantle. A typed version50 was apparently never signed.
[117] That same day (25 May) a statement was taken by Det Sgt Caporn from Mr Peirce’s girlfriend whose name has been suppressed. It is not clear from the statement whether it was taken before or after the execution of the warrant on Mr Peirce although there is an entry in the Major Crime Running Sheet showing contact between Det Sgt Caporn and the girlfriend earlier in the day. This statement states: He (Mr Peirce) told me (the girlfriend`d) that the police had been looking to interview him about the murder at the jewellery shop. He said that he saw the bloke who did it running across to the train station. I asked him how he would know that it was this person who did it. He didn’t answer me and put someone else on the phone.
 
[118] The next day Mr Peirce’s girlfriend rang the police with further information including that Mr Peirce: … had been very paranoid since the murder and keeps saying ‘I’m innocent, it wasn’t me. 
 
 

Mallard v The Queen [2003] WASCA 296 (3 December 2003)

3 December 2003

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION : MALLARD -v- THE QUEEN [2003] WASCA 296


CORAM : PARKER J

WHEELER J

ROBERTS-SMITH J


HEARD : 10 - 14 JUNE, 11 - 15, 18 - 21, 25, 28, 29 AUGUST, 17 - 21 NOVEMBER 2003


DELIVERED : 3 DECEMBER 2003


FILE NO/S : CCA 135 of 2002


BETWEEN : ANDREW MARK MALLARD

Petitioner

AND

THE QUEEN

Respondent

Catchwords:

Criminal law and procedure - Earlier appeal dismissed - Appeal by reference from Attorney-General of petition - Approach to be taken by Court in determining appeal by reference of petition - Principles

Evidence - New or fresh evidence - Distinction - Principles applicable

Evidence - Non-disclosure by the Crown - Effect of - Whether resulting in miscarriage of justice

Evidence - Confession by petitioner to police - Statements made by him in the third person - At trial claimed to be his "theories" about how the crime was committed by the killer - Whether genuine "confession" or mere "theorising"

Evidence - Polygraph or "lie detector" examination - Whether results admissible

Legislation:

Sentencing Act 1995 (WA)s 140(1)

Result: Appeal dismissed

Category: Representation:

Counsel:

Petitioner : Mr M J McCusker QC, Dr J J Edelman & Ms C L Sargent

Respondent : Mr B Fiannaca & Mr P D Yovich

Solicitors:

Petitioner : Clayton Utz

Respondent : State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Case(s) also cited:

Button v The Queen [2002] WASCA 35(2002) 25 WAR 382

Committee of Concerned Social Scientists, Amicus Brief to the United States Supreme Court in United States v Scheffer, August 1, 1997

Hunter and Sara v R [1999] NSWCCA 5(1999) 105 A Crim R 223

Kumho Tire Co Ltd v Carmichael [1999] USSC 19(1999) 119 S Ct 1167

Lowery v The Queen [1974] AC 85

McKinney v The Queen [1991] HCA 6(1991) 171 CLR 468

R v Brown, unreported; High Court of New Zealand; 19 September 1997

United States v Galbreth 908 F Supp 877 (D NM 1995)

United States v Padilla 908 F Supp 923 (SD Fla 1995)



JUDGMENT OF THE COURT:

History of the reference

1 On 23 May 1994 Pamela Suzanne Lawrence was killed at Mosman Park. On 2 November 1995 the petitioner's trial commenced, and he was convicted on 15 November 1995 of wilfully murdering Mrs Lawrence.

2 By notice of appeal dated 20 November 1995, apparently prepared by the petitioner himself, he appealed against conviction on the ground that the learned trial Judge erred in admitting into evidence certain oral conversations at the CIB police office on 10 and 17 June 1994. At the outset of the hearing of that appeal, application was made by his counsel for leave to amend the grounds by substituting five other grounds together with a ground 6, which referred to "new and fresh evidence" and asserted that particulars would be provided at or before the hearing of the appeal. No such particulars were ever provided, and on 11 September 1996 the Court of Criminal Appeal dismissed the appeal. There was no appeal against sentence.

3 On 8 July 2002 a petition for clemency was forwarded on behalf of the appellant pursuant to s 140 of the Sentencing Act 1995 (WA). The Hon Attorney General decided to refer the case to the Court of Criminal Appeal pursuant to s 140(1)(a) of the Sentencing Act, which relevantly provides:

" (1) a petition for the exercise of the Royal Prerogative of Mercy in relation to an offender convicted on indictment, ... may be referred by the Attorney General to the Court of Criminal Appeal either –
(a) for the whole case to be heard and determined as if it were an appeal by the offender against the conviction ... ."

4 The notice of appeal has been the subject of a number of amendments both prior to the hearing of this reference and at the hearing. The final version of that document is an amended notice of appeal dated 18 August 2003, pursuant to leave granted and orders made on 15 August 2003 during the course of the hearing of the appeal. A perusal of the reference and of the various applications for leave to amend the grounds of appeal, and a comparison of the grounds of appeal with the submissions actually made by the appellant's counsel in closing, reveals that the appeal has been something of a moveable feast. We will return to that subject briefly later. For the moment, it is sufficient to note that we have chosen to deal with the issues arising largely in the order in which they were dealt with in counsel for Mr Mallard's closing address.

5 It should also be noted that there was some controversy between counsel for Mr Mallard and counsel for the respondent, as to whether Mr Mallard was truly an appellant, or was rather to be referred to as an "applicant". We consider, consistently with authority, as a person whose petition has been referred to this Court by the Hon Attorney General pursuant to s 140(1)(a) of the Sentencing Act, he is properly to be described as "the petitioner".

Relevant legal principles

6 Leaving aside for the moment, issues surrounding polygraph evidence, there are four broad areas of legal principle which need to be considered, however briefly. There was not a significant difference, as to most of them, between the submissions put on behalf of the petitioner and on behalf of the respondent. However, it is desirable to set out what appear to be principles of significance for the determination of this appeal.

(i) Reference of the "whole case"

7 It was accepted on both sides that on reference the Court had a duty to consider the "whole case". The Court is required to consider the case in its entirety, subject only to the limitation that it is bound to act upon legal principles appropriate to an appeal.

8 However, there was at times a tendency for counsel for the petitioner to refer to this proposition as if it justified the hearing afresh of evidence at trial and evidence called on the appeal, without regard either to the verdict of the jury or to the previous decision of the Court of Criminal Appeal in this case. That was particularly noticeable in the petitioner's opening submissions, in which very detailed submissions were put as to discrepancies between the evidence of various witnesses as to the timing of certain events. Those matters were before the jury at the petitioner's trial, although of course they were not marshalled and emphasised in precisely the way in which the petitioner now seeks to marshal and emphasise them.

9 The respondent relied particularly upon Re Matthews & Ford [1973] VicRp 18[1973] VR 199 as authority for the proposition that on a reference the jurisdiction of the Court was confined to fresh material brought before the Court and that it could not re-adjudicate a ground of appeal already heard and disposed of. The petitioner relied upon a decision of this Court in Mickelberg v The Queen, unreported; CCA SCt of WA; Library No 970749; 30 October 1997. That decision is authority of the Court of Criminal Appeal of this State bearing directly upon the question of the way in which the Court ought to approach a decision of a previous Court of Criminal Appeal in relation to the subject matter of the reference. However, it is authority which supports the submission of the respondent. At page 6 of the reasons for decision of Malcolm CJ (with whom Steytler and Wheeler JJ agreed), his Honour noted that the basic submission of the respondent in that case was that the reference to the court of "the whole case" contemplated that decisions on issues already heard, after full opportunities for argument have been offered to both parties, should not be re-opened and again heard and determined on the same grounds of appeal. His Honour canvassed the various cases in a number of jurisdictions which shed light upon that proposition, and observed as follows (at 13):

"Counsel for the Crown rightly contended that s 21(a) of the Criminal Code and s 140(1)(a) of the Sentencing Act 1995 do not contemplate that the whole case should be retried on appeal. It was submitted that the provisions contemplated confining the jurisdiction of the Court to fresh material and do not contemplate that any matter, which had been previously dealt with at a trial and disposed of on an appeal which had already been heard and determined, should be re-opened in the absence of cogent fresh evidence. This submission is correct, subject to the qualification regarding new evidence in the last sentence in the passage quoted from Ratten above [referring to the passage in Ratten v The Queen [1974] HCA 35(1974) 131 CLR 510, at which Barwick CJ said – page 517 – that if by reason of new evidence which is not fresh the court is either satisfied of innocence or entertains such a doubt that the verdict of guilty cannot stand, the court will quash the conviction]."

10 Of course, as counsel for the petitioner pointed out, the court in the Mickelberg decision to which we have referred did not grant the Crown's application to strike out certain grounds of appeal as attempting to raise issues already determined against the appellants. However, that application was not dismissed because the principle for which the Crown contended was unsound, but because of the difficulty, in a proceeding by way of preliminary objection, of evaluating the way in which matters which were either fresh or new in the relevant sense would interact with issues already determined.

(ii) New evidence/fresh evidence

11 Subject to questions of non-disclosure, which will be dealt with shortly, evidence which has not been produced at trial falls into two broad categories. One is evidence which was available at the trial or which could, with reasonable diligence, have then been discovered. The other consists of evidence which either did not exist at the time of trial or which could not then with reasonable diligence have been discovered. Only the second category comprises "fresh" evidence. The first category is frequently described as "new" evidence.

12 It has been suggested on a number of occasions that the distinction between fresh evidence and new evidence is of minor, or of decreasing, significance in the context of criminal appeals, a proposition which is supported to a degree by observations in some decisions of this Court (eg Nolan v The Queen, unreported; CCA SCt of WA; Library No 970260; 22 May 1997 per Malcolm CJ with whom Pidgeon and Murray JJ agreed at 62 – 63). The distinction is nevertheless one which continues to be recognised. It was a distinction reasserted as recently as this year in a decision of this Court (Easterday v The Queen [2003] WASCA 69 at [204]). It has been repeatedly recognised in decisions of the High Court. In Mickelberg v The Queen [1989] HCA 35(1989) 167 CLR 259, for example, Toohey and Gaudron JJ explained that the underlying rationale for a Court of Criminal Appeal setting aside a conviction on the ground of fresh evidence is that the absence of that evidence from the trial was in effect a miscarriage of justice (at 301); see also Gallagher v The Queen [1986] HCA 26(1986) 160 CLR 392 at 395, 402 and 410). However, in respect of new evidence, their Honours in Mickelberg went on to say, at the same page:

"There is no miscarriage of justice in the failure to call evidence at trial if that evidence was then available, or, with reasonable diligence, could have been available: see Ratten v The Queen [1974] HCA 35(1974) 131 CLR 510 at pp 516 – 517, per Barwick CJ, noting however, that there may be somewhat greater latitude in the case of criminal trials than in the case of civil trials."

13 Not only is the distinction between fresh and new evidence one which is well-established in the criminal law, but, as has been explained on a number of occasions, the distinction is one soundly based in principle. That principle was adverted to by Toohey and Gaudron JJ in the passage from Mickelberg already quoted. It was explained in somewhat more detail by Mason J in Lawless v The Queen [1979] HCA 49(1979) 142 CLR 659 at 675 – 676. His Honour said:

"However, it is not permissible for a court of criminal appeal to set aside a conviction if the newly adduced evidence, not being fresh evidence strictly so called, reveals no more than a likelihood that the jury would have returned a verdict of not guilty. Two considerations operate to bring about this result. The first is that in a criminal trial the accused is entitled to decide how his case will be conducted, in particular, what evidence he will call. He makes this decision in the light of the knowledge that he is tried but once, unless error or miscarriage of justice results in a successful appeal. He cannot therefore conduct his defence by keeping certain evidence back in the expectation that, if he is convicted, the existence of the uncalled evidence will provide a ground for a second trial at which a different or refurbished defence may be presented. Accordingly, an accused person, if convicted, generally cannot complain of a miscarriage of justice if he deliberately chooses not to call material evidence, it being actually available to him at the time of the trial, or if he fails to exercise reasonable diligence in seeking out material evidence.



The second consideration is that there must be powerful reasons for disturbing a conviction obtained after a trial which has been regularly conducted. ... If the evidence newly adduced falls short of establishing that the accused should not have been convicted, there is no overwhelming reason why the conviction, regularly obtained after a fair trial should not be allowed to stand."

14 Of course, as was noted in Ratten, the accused person in the case of a criminal trial is afforded considerable latitude, because of the difficulty of the accused's position and the discrepancy between the resources perceived to be available to the Crown and to the accused. Evidence not actually available to an accused will often be treated as fresh evidence, notwithstanding that it could on a narrow view have been discovered by diligent enquiry. That is something which falls to be evaluated having regard to the circumstances of each case.

15 If the evidence is new but not fresh evidence, the Court of Criminal Appeal will quash a verdict of guilty only if that material either shows the appellant to be innocent or "raises such a doubt about his guilt in the mind of the court that the verdict should not be allowed to stand": Ratten v The Queen, supra, 520 per Barwick CJ. If there is fresh evidence, a number of authorities have explored the way in which such evidence may demonstrate that a miscarriage of justice occurred. In Lawless[1979] HCA 49; , (1979) 142 CLR 659, Aickin J at 684 – 686 explained the task of the Court of Criminal Appeal by reference to the joint judgment of Rich and Dixon JJ in Craig v The King [1933] HCA 41(1933) 49 CLR 429 at 439, which read:

"The Court of Criminal Appeal has thrown upon it some responsibility of examining the probative value of the fresh evidence. It cannot be said that a miscarriage has occurred unless the fresh evidence has cogency and a plausibility as well as relevancy. Fresh evidence must, we think, be of such a character that, if considered in combination with the evidence already given upon the trial, the result ought in the minds of reasonable men to be affected. Such evidence should be calculated at least to remove the certainty of the prisoner's guilt which the former evidence produced."

The same passage was quoted by Menzies J in Ratten, and by Gibbs CJ in Gallagher v The Queen [1986] HCA 26(1986) 160 CLR 392 at 396. In Gallagher, Mason and Deane JJ expressed the test in terms of a "significant possibility of a jury bringing a different verdict" (at 402). Gibbs CJ at 399 agreed with that view, although his Honour emphasised that:

" ... no form of words should be regarded as an incantation that will resolve the difficulties of every case. No test can detract from the force of the fundamental principle that the appeal must be allowed if a miscarriage of justice is shown to have occurred. It is only a practical guide to the application of that principle to say that the court will grant a new trial if, having approached the matter with the caution that is always demanded when fresh evidence is produced in a criminal case, and having weighed the credibility of the fresh evidence and considered its cogency in the light of the evidence given at the trial, it considers that a jury might reasonably have reached a different verdict if the evidence had been available at the trial."

Dawson J expressed tests similar to that enunciated by Gibbs CJ and Mason and Deane JJ (at 421) stating that the court would need to conclude that "a jury might entertain a reasonable doubt about the guilt of the appellant".

"In Mickelberg v The Queen [1989] HCA 35(1989) 167 CLR 259 Mason CJ (at 273) followed the test endorsed in Gallagher v The Queen by four of the five justices and expressly approved the remarks of Dawson J which we have quoted. . Brennan J (at 275) expressed his preference for a test expressed in terms of 'likely' and not 'might'. Deane J adopted the 'significant possibility' test. Toohey and Gaudron JJ (at 302) said:
'In essence, the fresh evidence must be such that, when viewed in combination with the evidence given at the trial, it can be said that the jury would have been likely to entertain a reasonable doubt about the guilt of the accused if all the other evidence had been before it ... or, if there be a practical difference, that there is "a significant possibility that the jury, acting reasonably, would have acquitted the [accused] ...". For ease of expression we proceed by reference to the formulation that the jury is likely to have entertained reasonable doubt had all the evidence been before it, noting, in that context, that it is necessary that the fresh evidence be credible in the sense that a reasonable jury could accept it as true, but it is not necessary that the court should think it likely that a reasonable jury would believe it.' "

16 To the extent that evidence is properly regarded as "fresh", we propose to apply the test as formulated laid down by the majority in Gallagher v The Queen and Mickelberg v The Queen, namely, whether the petitioner has established that there is a significant possibility that, in the light of all the admissible evidence (including that given at the trial), a jury, acting reasonably, would have acquitted him.

17 Although the ultimate question concerns the court's opinion as to the effect of the fresh or new evidence on a jury, it is inevitable that, in the process of answering that question, the court will form its own assessment of the credibility of the witnesses. Regard will be had to the fact that, as Mason CJ, Deane, Dawson and Toohey JJ pointed out in Mickelberg v The Queen (at 494):

" 'a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced'. Regard, however, will also be had to the possibility that, in some instances, a witness regarded by the court as credible beyond reasonable doubt, may be seen by a jury in a different light, and that a jury might have a different view of a witness, regarded by the court as not being capable of belief."

(iii) Material Non-Disclosure by the Crown

18 The respondent formulated its submissions of law in respect of these issues in terms which appear to us to be generous to the petitioner. So far as the duty of disclosure is concerned, the respondent asserts that the prosecution had a duty to disclose:

"That which can be seen on sensible appraisal by the prosecution:
(1) to be relevant or potentially relevant to an issue in the case;



(2) to raise or possibly raise a new issue whose existence is not apparent from the evidence the prosecution proposes to use;



(3) to hold out a real (as opposed to fanciful) prospect of providing a lead on evidence which goes to (1) or (2)."

In support of that proposition, the respondent cites R v Brown (Winston) [1994] 1 WLR 1599 at 1606, Bradshaw v The Queen, unreported; CCA SCt of WA; Library No 970228; 13 May 1997 and Easterday v The Queen [2003] WASCA 69 at [195] – [197].

19 While the respondent's concession represents, it seems to us, an accurate statement of the current law concerning the prosecution's duty of disclosure, the question whether it precisely reflects the law applicable at the time of the investigation of Mrs Lawrence's death is one which might be open to argument. The principles enunciated in R v Brown (Winston) are, for example, different from the summary of the prosecution's duties arrived at after a detailed consideration of the then currently understood position in In Re Van Beelen (1974) 9 SASR 163 at 249, by the Supreme Court of South Australia. They also appear not to be entirely consistent with the views expressed in Lawless v The Queen, a decision of the High Court delivered in 1979, which we propose to consider shortly.

20 Given that the respondent has conceded that its duties at the time of the petitioner's trial fall to be considered in this case against the standards set out in R v Brown (Winston) and the other cases to which we have referred, we propose to accept that concession and to apply that standard. However, it is worth noting that there has been an apparent broadening, to some degree, of the view taken of the prosecution's duties over the course of the last 20 years or so. That change, in either the substance or the emphasis of the law, illustrates the difficulty, in a reference such as the present, in appreciating and giving due regard to the atmosphere of a trial conducted some considerable time ago, at a time when the law may, in principle or in practical application, have been perceived somewhat differently. Accepting the prosecution's concession in this respect gives the petitioner the benefit of the most generous view which can be taken towards his appeal.

(iv) Effect of Non-Disclosure

21 Similar comments can be made in respect of the concession by the respondent that cases of material non-disclosure by the Crown fall to be considered somewhat differently from the way in which evidence not available at trial (whether new or fresh) is generally to be considered. The respondent concedes that where there is found to be a departure from the requirements of a properly conducted trial, by reason of non-disclosure by the Crown, it cannot be said that there has been no substantial miscarriage of justice if the petitioner has lost "a chance fairly open to him of being acquitted". In that respect, the respondent cites Grey v The Queen [2001] HCA 85.

22 The respondent's submission in this case builds a concession upon a concession, since it appears that in Grey's case the respondent had conceded that the case was not to be determined by reference to the principles relating to fresh evidence but by reference to the principles governing the obligation of the Crown to make disclosure in criminal cases (at [9]). It appears from [23], from the observations of Gleeson CJ, Gummow and Callinan JJ, that the court regarded that concession as well made.

23 What is not apparent from the report of Grey is whether the court had cited to it Lawless v The Queen ((1979) [1979] HCA 49142 CLR 659), a decision in which, save for Murphy J in dissent, all Justices of the High Court apparently considered that, where the prosecution had failed to disclose to the defence the contents of a statement made by an eye witness to a part of the relevant events, an important question for the court's consideration was whether the evidence was to be treated as relevantly "fresh". All Justices seem to have been of the view that it would have been preferable for the prosecutor to have disclosed the material, with the strongest view being taken by Mason J who, at 678, observed that although there was no rule of law requiring the prosecution to produce that material he did "not condone" the failure to do so. Different views were expressed as to whether the evidence was fresh (Barwick CJ and Mason J finding it was not, Stephen J contra, Aickin J not deciding). All four of the Justices in the majority took the view that even if the evidence were fresh it would not have been likely to have led to a different result on a new trial.

24 Certain observations, particularly of Stephen J at 673 and Mason J at 678, tend to suggest that non-disclosure might result in a miscarriage of justice, even where the evidence was not fresh, if deliberate concealment or misconduct on the part of the prosecution were involved. The court later held, in R v Apostilides [1984] HCA 38(1984) 154 CLR 563 at 577 that misconduct of the prosecutor is not an essential condition precedent to a miscarriage of justice. However, that was in a somewhat different context of a case in which there was a failure on the part of the Crown to call a witness, copies of whose statements were made available to defence counsel. So far as we can ascertain, Lawless has not been overruled, nor its correctness doubted, save to the extent that the decision in Grey may be seen as inconsistent with it.

25 Again, as in the case of the prosecution's duty of disclosure, the respondent has accepted a view of the law which is most favourable to the petitioner. For the purpose of this appeal, we propose to accept that concession as rightly made.

The Crown Case

26 So that what follows can be understood, it is desirable to outline briefly the Crown case against the petitioner as it was at trial. We do so by adapting the reasons of Malcolm CJ in the decision of the Court of Criminal Appeal delivered on 11 September 1996. At one or two points there are matters in respect of which we interpolate a comment which appears in square brackets. His Honour the Chief Justice's summary is as follows.

27 The Crown case against the petitioner was that the murder occurred on the night of Monday 23 May 1994. This was the night of a storm which was of some significance to witnesses in their recollection of relevant events.

28 Mrs Lawrence was a shopkeeper and jewellery maker who conducted a jewellery making business and jewellery shop known as "The Flora Metallica" in Glyde Street, Mosman Park. She was assisted in the business by a Mrs Jacqueline Barsden who was working at the shop on 23 May between 9.55 am and 3.00 pm. Mrs Barsden explained the nature of the business and the daily routine and what happened on that day. There was a shed at the back of the shop which was used as a workshop. Mrs Lawrence spent most of the day in the shed where there was equipment for gold plating and coppering. It seems that in the middle of the day Mrs Lawrence said that she was going shopping. She went out and returned to the shop at 2.00 pm. At about 2.10 pm she went down to the shed. Mrs Barsden left for the day at about 3.00 pm. She closed the front door of the shop so that it could only be opened from the outside with a key, but it was not deadlocked. It could be opened from the inside.

29 Mrs Barsden had a daughter named Katherine who was a pupil at St Hilda's Girls School. At about 4.20 pm that afternoon Mrs Barsden telephoned her Mother, Mrs Wood and asked her to pick up Katherine from the school.

30 That evening some time after 6.00 pm Mrs Lawrence was found face down on the floor of the shop in a pool of blood. She was a woman 160 cms tall and weighed 66 kgs. She had suffered severe head injuries which had caused underlying fractures of her skull in three different locations. Some of the wounds or lacerations had bluish or greenish material in them. [The material contained Prussian Blue, a relatively common paint pigment.] There was a group of injuries on the right side of the front of the head involving the forehead and just above the forehead. There was a group of injuries on the left side involving the forehead and the temple. Finally, there was a group of injuries on the back of the head. There was bruising to the right side of the forehead and the right temple consistent with a fall or collapse. The injuries were consistent with a number of blows to the head in each of the areas of injury resulting in fractures to the skull. The injuries were consistent with Mrs Lawrence having been struck with a blunt instrument. [The evidence as to the likely weapon at trial is complex, and requires elaboration.]

31 There was no immediate suspect identified by the police who examined some 664 possibilities. As a result, the police identified 136 persons of interest, one of whom was the petitioner. [He was interviewed on a number of occasions, and allegedly confessed to the offence. The alleged confession is dealt with in detail under the next heading.]

32 The petitioner gave notice of alibi and at the trial advanced a further alibi, which included him knocking on various doors on the night in question and getting no answer. The significance of this alibi was that the notice of alibi was tendered into evidence, the petitioner gave evidence of it, but his evidence was rebutted by the evidence of Crown witnesses who said that they were at home at the time but had heard no-one knocking at their door. In one particular case, a Mr Clark had painted his front door that day. As a result of the storm, he had put up cardboard in the door frame. The Crown placed considerable reliance on this evidence by way of rebuttal of the alibi.

33 It was clear that evidence of the alleged confessions was essential to the Crown case at the trial. The confessional evidence was said to be of particular significance because the Crown case was that, during the interviews on 10 and 17 June 1994, the petitioner correctly detailed certain aspects of the crime and accompanying facts which only the perpetrator could have known.

34 The confessional evidence was not the only evidence. There was also a body of circumstantial evidence which formed part of the Crown case. The petitioner had been placed in the lockup at Police Headquarters in East Perth at about 2.40 pm on Monday 23 May 1994. He was released approximately an hour later. A taxi driver gave evidence that he picked up the petitioner in Perth between 4.00 pm and 4.10 pm and took him to the Bel Air Flats at 2 Murray Avenue, Mosman Park. The taxi driver could not be precise about the time, but it was between 4.45 pm and 5.00 pm. There was evidence that, at the preliminary hearing, his recollection was that he had dropped off the petitioner just before 5.00 pm. There was also evidence that the taxi driver's next fare was shortly after 5.20 pm when he received a call outside Mosman Park Railway Station.

35 Two witnesses, Mr Mouchmore and Mrs Murtagh, gave evidence describing a person they had seen in Glyde Street about 4.40 pm or 4.45 pm. The learned Judge commented to the jury that it would be difficult to conclude on that evidence that the person they described and the person they saw was the petitioner. A Mrs De Florenca gave evidence of two persons she described as having been in the area of Mrs Lawrence's shop at around 5.00 pm. The trial Judge commented that this evidence was not such as to give rise to a doubt if the jury concluded, on the basis of other evidence, beyond reasonable doubt that the petitioner killed Mrs Lawrence.

36 Mrs Raine described a man she had seen on the ground floor of the Bel Air Flats on the evening of 23 May. Her evidence, if accepted, strongly suggested that the person she saw was the petitioner. Her evidence was contested by the petitioner. If the encounter took place, it would have been about 5.15 pm or as late as 5.25 pm. Mrs Raine described the person she saw as carrying an iron bar. The person she saw also had a carton of Choc Milk. This particular fact did not tie in with other evidence. According to the police record, the petitioner had only $2 in his possession when he was in the lockup that day. When dropped off by the taxi he absconded without paying the fare.

37 The learned Judge in his summing up said that the evidence of Mrs Raine was only relevant if the jury were satisfied that the person she saw was the petitioner. Mrs Raine also gave evidence that the person she had seen on the night of 23 May was the same person as she saw in Murray Street the next morning. At that time, the petitioner was in the process of being arrested by police in Murray Street. Mrs Raine later identified the petitioner as the person she saw by picking him out from a photo board. The jury were given a comprehensive warning regarding the dangers involved in relation to identification evidence generally and the use of a photo board in particular.

38 Significant evidence was given by a Miss Katherine Barsden, the daughter of Mrs Jacqueline Barsden who worked at the shop. As at 23 May 1994 Miss Barsden was 13 years of age. She was aged 15 at the time she gave her evidence. On the evening of 23 May 1994 she was picked up by her grandmother at St Hilda's Girls School in Bayview Terrace, Mosman Park. Her grandmother was driving a light green Toyota Corolla Seca sedan. Miss Barsden's evidence was that when she got into the car she observed the time to be 5.00 pm on the digital car clock. Between two and five minutes later, but much closer to two than five, the car pulled up at the traffic lights at the T junction of Glyde Street and Stirling Highway, opposite Flora Metallica.

39 Her evidence in chief was:

"I looked into the shop, the lights were on and the front door was closed. As soon as I looked into the shop there was a man standing there, so I kept looking and he was standing not where a customer would normally be - next to the right hand side of the pinup board - next to or behind the L-shaped display area."

40 She described what she saw as follows:

"The man was 30-35 years old, medium build, slight beard, orange strawberry blond colour, scarf on his head, rustic orange border, slight pattern of blue or green.



I kept staring and I felt the moment that he saw me or we made eye contact he bobbed down and I kept looking for another 30 seconds and he didn't reappear. In those 30 seconds the lights changed to green and the car moved off. I didn't see Mrs Lawrence."

41 In his summing up the learned trial Judge commented that Miss Barsden gave the time quite precisely and identified with precision the position of the person she saw in front of the counter in the shop. Her evidence that she made eye contact with the person, who behaved suspiciously by ducking out of sight, was important evidence.

42 Mrs Wood, Miss Barsden's grandmother, confirmed Miss Barsden's evidence of the time she got into the car at St Hilda's and the vehicle stopping at the Glyde Street traffic lights. Her evidence was that Miss Barsden said:

"There's someone in mummy's shop."

43 Mrs Wood then said:

"Have a good look."

44 A police officer gave evidence that he had checked the clock in the vehicle shortly afterwards and it was found to be accurate.

45 The petitioner himself gave evidence which, subject to a question of interpretation to which we will refer later, was an admission that he was in the shop and that he was seen by a passenger in a car which was stopped at the traffic lights and with whom he locked eyes. The importance of the evidence was that, if it was accepted that it was the petitioner seen by Miss Barsden in the shop, it placed him there just after 5.00 pm. It was significant evidence of opportunity.

46 There was an "A" frame outside the shop on the afternoon of 23 May. At 3.00 pm, Mrs Jacqueline Barsden, who had been attending the shop, brought in the "A" frame, left the shop and locked the door. Later, it appears that Mrs Lawrence found herself locked out. Mr Lawrence then attended at the shop. He was there between about 4.00 pm and 4.20 pm. His house was about two minutes away by car. When he arrived at the shop the "A" frame was inside the shop.

47 A Mr Barry Whitford gave evidence that he received a telephone call from a woman who said that she was from Flora Metallica. They spoke about some salt and pepper shakers. His evidence was that this telephone call was made about 5.10 pm. Mr Whitford confirmed the accuracy of the time of the call by checking with Telecom and checking the accuracy of his clock. The only person who could have made the call from the shop at that time was Mrs Lawrence. As the learned trial Judge pointed out to the jury, if the call came from Mrs Lawrence, then she was still alive at about 5.10 pm or very close to that time.

48 In this state of the evidence the learned trial Judge told the jury that there were various questions they had to consider. As formulated by the learned trial Judge, these were:

"I am just simply referring to these pieces of evidence to bring together perhaps some of the pieces of evidence which bear upon the question of the events that occurred immediately surrounding the killing of Mrs Lawrence. You would have to consider for yourselves what you thought the evidence carried you to as to a conclusion as to what happened to her. How did the person who killed her get into the shop? Was it through the back door? If so, how did that person get through the back door? Was it because the door had been left on the rag or had been left ajar, or was it because she had already come into the shop before the person who killed her did? Was the person who killed her already in the shop having got in through the back door by being able to push it open because it was not properly secured? Was that person then seen by Kate Barsden, ducked down and was in the front part of the shops being secret when Mrs Lawrence came in and disturbed that person by making a telephone call from the rear.

There are a number of different ways you can look at that evidence and it may help you to make a conclusion about those matters or you may find that of no assistance whatsoever either to understand or to know how the killing occurred or perhaps more importantly to evaluate what you think of what the accused person said, if you find that he said these things, later to the police about what occurred.



They are matters which you could consider. Certainly you may have had some confidence that you know where in the shop she was killed, so how did she get there? Did she come forward having made the telephone call to commence the locking up process and did she there surprise and come upon the intruder? These are matters for you, you will see, but it would seem pretty clear, you may think - again it is a matter for you - that she was first struck down in front of that partition wall where the display board is and you have got the evidence firstly of Dr Cooke and also of Mr Bagdonavicius who also observed the scene about that and the nature of the blood spattering and the smearing in that area which indicates that blows were struck to her head low down at that point.



Then of course, you have got the evidence that she was dragged to the rear of the shop later and perhaps you may think, but it would be a matter for you, that the spattering in that area - the region of the back door and on the fridge and on the sink cabinet may indicate that one or more further blows were struck there, perhaps not. The matter is entirely for you.



You would want to give careful consideration I would suggest to you to that aspect for the reasons that I have mentioned. You would look to the timing of that also. You may think you need to reconcile in some way the evidence given by Kate Barsden and by Mr Whitford about times. It may not concern you. It is a matter entirely for you."

49 Mr Lawrence gave evidence that he began to be concerned that his wife had not arrived home by 6.15 pm. He telephoned the shop. There was no answer and the answering machine had not been switched on. He drove to the shop. The lights were still on. There was a pot outside with a eucalyptus tree in it. He opened the front door with his key and took the pot inside. The "open" sign was still above the front door. There was still a mat outside the door. The "A" frame was inside. Mr Lawrence noticed some blood on a partition and he heard a groan. He found his wife lying on the floor. She had blood in her mouth and was making gurgling sounds. He turned her onto her side and telephoned 000. The ambulance arrived shortly afterwards. He found the back door shut but unlocked. He found the door to the shed at the back open and the lights on. This was a work shed. There was a copper bath which was operating.

50 Mr Lawrence then went back into the shop. No jewellery was missing. No cash was missing from the cash box under the display counter. Mrs Lawrence's handbag was on the shelf behind the partition. A brown Oroton wallet was missing, as were her credit cards. She normally had $100-$150 cash in her wallet. Mr Lawrence's evidence was that on the night of 23 May Mrs Lawrence was wearing jeans and a [dark blue] jumper.

51 Mr Lawrence said that Mrs Lawrence's policy was that, if anyone was confronted in the shop by another person or in danger, they should hand over whatever was required of them without dispute. He said there were various tools in the back shed such as adjustable spanners, screwdrivers, pliers and clippers. They were used in the business. Shortly after 23 May 1994 Mr Lawrence checked the tools to see if any of them were missing. He thought an expanding spanner was missing, but he was not sure. The spanner he thought was missing was a Sidchrome spanner "10 inches in length" with an adjustable head. He would also describe it as "a wrench".

52 A possible inference from Mr Lawrence's evidence was that Mrs Lawrence may have been in the shop, but had gone out to the shed at the back to do some work, leaving the shop unattended. The intruder may have entered the shop and been disturbed by Mrs Lawrence. Alternatively, Mrs Lawrence may have been waiting in the shop and had been disturbed by the intruder.

53 The calling of the ambulance was logged at 6.37 pm. The ambulance arrived at 6.45 pm. In the meantime, the police had arrived at 6.42 pm. On this evidence, an important question for the jury was to determine where the petitioner was between 5.00 pm and about 6.20 pm when Mr Lawrence arrived at the shop. There was evidence that the petitioner was short of money, but the learned Judge warned the jury that this evidence did not carry the matter anywhere.

54 The petitioner's evidence was that after he left the taxi, he went to Ms Michelle Engelhardt's flat at 3/10 Murray Avenue at about 5.30 pm to change his clothes. On his account, he was there for about one minute. He said that after that he was walking around trying to score some marijuana. He was with a Mr Damien Kostezky. They visited a corner delicatessen between 6.00 pm and 6.30 pm to buy food. They then went to Ms Engelhardt's flat arriving there about 6.40 pm. Mr Kostezky, however, gave evidence that he met the petitioner at 7.00 pm. Ms Engelhardt gave evidence that the petitioner called at her flat at about 6.30 pm and stayed until after 7.00 pm. She recalled that it was after 7.00 pm because he left while a television programme called Home and Away was on and this programme had commenced at 7.00 pm.

55 Ms Engelhardt's evidence that the petitioner left her flat after 7.00 pm could not have been correct. There was irrefutable evidence that the petitioner was on a train travelling between Mosman Park and Fremantle at 6.58 pm. He would have boarded that train a Mosman Park a few minutes before. This means that he must have left the flat some time before 7.00 pm. It also follows that Mr Kostezky's evidence that he met the petitioner at 7.00 pm could not have been correct.

56 There was a body of evidence from various witnesses at a number of flats in the area that they had been visited by the petitioner on the previous night, Sunday 22 May, when the petitioner was endeavouring to obtain drugs. The petitioner's evidence regarding his pursuit of drugs placed these activities on the Monday night rather than the Sunday night. The learned Judge directed the jury that it was for them to consider where the truth lay, but that the evidence raised questions whether the petitioner was confused or whether he was lying about these issues taking place on the night of Monday 23 May. His Honour said that the acceptance or rejection of the petitioner's evidence regarding his movements was significant, as it was the basis of his alibi. The jury were told they had to consider whether the evidence was deliberately untrue or simply mistaken in the context of the evidence given by other witnesses. If the alibi was rejected, the petitioner was left in the situation where he was unable to account for his movements. The learned Judge commented that this could be taken no further than giving rise to an opportunity or a motive for being in the area of Flora Metallica, or in the shop itself, with an opportunity to commit the killing.

57 It was in this context that the learned Judge gave the following direction to the jury:

"You need to have very clearly in your minds, in my view, the fact that there is this further step to be taken. What we are concerned with there is evidence of opportunity. By itself it would seem to me that would not carry you to the conclusion beyond a reasonable doubt that it was this accused person who killed. As to that, I would have thought that was a conclusion which you could not reach adverse to him unless you accepted the police evidence of the confessions he made. As to that there are some very clear questions for you to consider."

58 The principal grounds of appeal relied upon by the petitioner were concerned with the confessional evidence.

The petitioner's "confessions"

59 The central issue at the trial, and the principal issue canvassed at the earlier appeal, was whether it was open to the jury to conclude beyond reasonable doubt that the petitioner was actually confessing and if so, whether his confessions were reliable. Because of the peculiar circumstances in which the alleged confessions came to be made, the first issue was whether the petitioner had confessed at all to killing Mrs Lawrence, and if so precisely what he had said by way of confession.

60 The competing view, advanced by the petitioner, was that as to some of the things he was alleged to have said, he had not said them at all; to the extent that he had said things which might be understood as confessions to the killing of Mrs Lawrence, he had not intended them as confessions but had in his own mind merely been formulating hypotheses (or theories) to assist the police in their enquiries. If the jury accepted that he had indeed confessed to the murder of Mrs Lawrence, the question arose as to whether those confessions were to be understood as reliable accounts of what he had done, or as the product of a disordered mind responding in part to suggestions made by the police and producing, in part, flights of pure fantasy.

61 The course of the petitioner's confessional conduct is central to the submissions advanced by the petitioner on this appeal. It was said by the Crown witnesses to be as follows.

62 On 26 May Detectives Caporn and Emmett interviewed the petitioner at Graylands. The conversation was relatively short. He was asked about his movements on the afternoon and evening in question and about whether he had been to Flora Metallica. He told them that he had walked past the shop at about 7 pm and had thought that there was a burglary because he had seen police there, and that he had passed the shop later on the same evening at about 9 pm and noticed police tape around it, and a van outside. He gave an account of his movements which he abandoned during later interviews, the thrust of which was that it had taken him a very long time to find a taxi from his first attempt in Perth at 5 pm, which he said accounted for his arrival at Ms Engelhardt's flat at about 6.30 pm. He said he had been to Flora Metallica about a week beforehand in order to attempt to sell some jewellery. He spoke not to Mrs Lawrence, but to the other lady that worked in the shop. He asked whether the detectives were able to tell him what Mrs Lawrence had been killed with.

63 On 27 May 1994, again at Graylands, the same two detectives interviewed the petitioner about some discrepancies between the account he had given them and information they had obtained from the taxi driver. When asked about his movements, he asked them whether it mattered. They replied that it did matter because Mrs Lawrence had been murdered and the petitioner's whereabouts were not accounted for. He asked whether he was a suspect, and the detectives told him that if he were not they would not be there. He gave them an account of his movements which revolved around attempting to score drugs.

64 On 30 May 1994 the detectives seized certain items from the petitioner at Graylands, including clothing. He was advised that he was a suspect. He again asked what Mrs Lawrence had been killed with.

65 On 2 June 1994, interviewed at Graylands, he told detectives that he had tried to sell jewellery to Pamela Lawrence. There was some discussion about whether he owned bandannas. He again asked what she had been killed with and told detectives that he knew from the news that it was a blunt instrument. There was some rather unusual conversation about his interests, during the course of which he made claims which included a claim that he could speak six languages.

66 On 10 June 1994 the petitioner was out of Graylands and interviewed at detectives' offices. The interview was a very long one. Like the previous interviews, and as was the practice at the time, it was not recorded on video. The process that was followed was that one detective asked questions while the other took notes. Given the course which events then took, it obviously would have been preferable for the interview to have been videotaped or otherwise independently recorded. The failure of the police to take that course, and the admissibility of the resulting evidence, was the subject of the earlier appeal.

67 In broad terms, the interview was as follows. The petitioner gave a detailed account of his movements on the evening in question. He again talked about trying to sell jewellery at Flora Metallica previously, but said he had not otherwise been in the shop and never in the backyard. After lunch, it was put to him that the account that he had given did not fit with aspects of information available to police. He said that he was unable to remember details. He said he needed to think and there was a further break. He gave them another and different account of his movements and was told that that did not "check out". He said he was getting upset and nervous but did not know why and gave a further account of his movements. There was another toilet break.

68 He then said that he went into the shop on that night to "case" it for a burglary, that he heard someone and ran out. He said he had "locked eyes" with a girl in a green car outside. He then said that he had made up the story about going to the shop and about locking eyes with the girl. There was a further toilet break. He then said he was going to the shop to case it, saw people coming and left. He denied seeing any witness. He denied killing Mrs Lawrence.

69 He then said a number of things which were, to say the least, odd.

70 It is apparent from what the petitioner was alleged to have said that he was by then becoming somewhat upset. He accused detectives of "fucking me around". He then said: " ... it's murder and that's not me. There's a rush, people get scared, don't want to get caught. It doesn't mean anything in the end, in the end it doesn't mean anything, nobody cares". He began to cry and said that there were a "lot of blanks". He said that he said that "he" (that is, speaking in the third person) was "very scared" and was "evil". He referred in a variety of ways to the "evil person" who had killed Mrs Lawrence and to what "he" had done. He observed "I can't stop him when he's like that". He gave a detailed and vivid account of the way in which "he" had surprised Mrs Lawrence while she was locking up, had been scared of being caught, and had hit her. He described certain areas of the shop. All of that was in the third person except for occasional comments such as "I can't remember". Shortly after he was told that detectives needed to know more about "this person", he asked for a break and there was a 10 minute break while he went to the toilet.

71 On his return from that, he denied being in the shop and denied murdering Mrs Lawrence. He said that everything he had said had been lies and that he did not kill her. He began hitting himself on the forehead and when Superintendent Caporn attempted to restrain him he bit Superintendent (as he now is – so far as possible, we refer to witnesses in the appeal by their current titles) Caporn on the leg. The interview was then terminated.

72 There was extensive cross-examination at trial as to why Superintendent Caporn did not conduct a videotaped interview immediately following that conversation which we have just summarised. It seems the reason at least in part was to do with the petitioner's extreme agitation at the time. In any event, it was on 17 June that he was interviewed again, but on that occasion by Detectives Brandham and Carter. Superintendent Caporn explained that it was thought that it would be preferable for detectives unconnected with the earlier interviews to interview the petitioner.

73 On that occasion, the evidence was that the petitioner confessed in detail and in the first person to the killing of Mrs Lawrence. Certain aspects of statements he made during the course of that confession did not apparently fit with the known facts, and those matters were raised with him during the course of the confession. In the petitioner's submission, those matters demonstrate that either he was not intending to confess that he was the murderer, or that his confession was unreliable. The alternative view, which the jury presumably accepted, was that he was persisting in a pattern of grudging confession as his untrue accounts were rejected, together with a continuing attempt to mislead where possible. In any event, at the end of that detailed first person confession, it was said that the petitioner had again retracted the confession, saying that he had made it all up, had guessed about the killing from the media and from what he had heard, and that his explanation for the detail which he had provided was "I got inside the killer's head".

74 That history explains the very unusual nature of the videotaped interview which was taken. It was not a videotaped confession in the normal sense; that is, it was not a series of answers by the petitioner to questions about the offence itself. Rather, it is in form a confession by the petitioner to having confessed at an earlier time. The questions put to him were along these lines:

"Question: You told us that you went out front on Glyde Street and that you were looking back and you saw that the Flora Metallica – the door was shut?



Mallard: Yes.



Question: And that you thought it was closed so it was safe to do a break. Is that what you told us?



Mallard: That's correct."

Shortly thereafter the following exchange occurred:

"Question: Okay, now you said you went into the shed –



Mallard: Yes.



Question: At the rear.



Mallard: Yes.



Question: And you said the door to the shed pushed



Mallard: Inwards.



Question: Inwards.



Mallard: Because being a small shed, being cluttered – being a small shed, you don't – I don't know, I just see it 'inwards'. I just feel – most sheds I know about are inwards."

75 A passage which exemplifies a number of features of the videotape is as follows:

"Question: [Referring to the back door] There was a key in it?



Mallard: No. I don't know. I didn't see a key.



Question: Alright. No problem. Okay. You described the steps to us and you described the rear door, and the flyscreen door you –



Mallard: May I say something else?



Question: Yes okay. Go on.



Mallard: If Pamela Lawrence was locking the store up, maybe she came in through the back way; the front door was already locked. Maybe –



Question: Okay.



Mallard: And she left the key in the back door, and that's why he had easy access and that's why she didn't hear him until he was marching down the store."

76 Those passages quoted give something of the flavour of the videotape. For the most part it consists of questions by the detective about whether the petitioner had previously told police that he had done certain things, and his agreement with the proposition that he had told them that he had done those things. On occasion during the course of the interview the petitioner spontaneously speaks of himself participating in those acts and does so in the first person, as in "I didn't see a key". On other occasions, he makes statements which appear to have the purpose of demonstrating that he is basing his knowledge on speculation (as in "maybe she came in through the back way") and on occasion he refers to the events he describes as if they involved some person other than himself (as in "that's why she didn't hear him").

77 The petitioner's case at trial in relation to these interviews had three aspects. As to some of the alleged confessions which were not videotaped, he denied that he had said certain things at all; if they had been said, he suggested that they had been put to him by the police rather than volunteered to the police by him. He said that on more than one occasion he had been threatened and mistreated by police officers (including being kicked, having a pistol shoved in his face, and threatened with being "killed") and that he had in effect said what he thought they wished to hear in order to avoid further mistreatment.

78 He also said that, to the extent that he had described the killing of Mrs Lawrence, he had done so only as part of a process of attempting to assist the police officers by sharing with them his theories of the way in which the murder may have been committed, based on information which he had obtained from the media and from the police officers. It was this last aspect of the petitioner's case at trial which was re-agitated forcefully before us. That is, it was submitted that the very peculiar nature of the videotape, together with discrepancies in certain respects between what was said by the petitioner on that videotape and the known facts, together with information available to the court about the petitioner's mental state, gives rise to a reasonable doubt as to whether the petitioner was confessing to his own involvement in the killing or merely theorising about how the true killer might have behaved.

79 Certain aspects of that submission will be revisited during the course of these reasons. For the moment, there are three observations we should make briefly about it. The first is that there has always been, and was maintained before us, a difficult ambiguity or inconsistency in the petitioner's account of why and how he came to discuss these theories with the police. In his evidence before us, for example, in answer to a question about why he had said to police that he had "locked eyes" with a girl, he said: "Because I trusted the police. I was trying to help them. They had beaten and intimidated me in interviews." There is, of course, a degree of contradiction in the notion that the petitioner would have trusted those who had so recently mistreated him. Further, it appeared to us that there was no reason ever advanced by the petitioner as to how it could "help" police to tell them that which he did not believe to be true.

80 The second observation is that this was an issue squarely before the jury at trial. We discuss below the extent to which the view taken by a reasonable jury about this issue might have been affected, if at all, by the matters raised by the petitioner on this appeal. However, the jury would no doubt have been greatly assisted in forming a view not only by hearing the evidence of the petitioner at trial, but also by viewing the videotape in which it was said that, as on other occasions, the petitioner had thought that he was discussing theories of the night in question with detectives. The trial was a complex and difficult one, involving an assessment of credibility and a consideration of all the surrounding evidence we have described, but it does not seem to us that the jury could have been unaware of the importance of a careful assessment of the alleged confessional evidence.

81 Third, to the extent that it is necessary for us to assess the whole of the case ourselves, we note that on the previous appeal, Malcolm CJ, with whom other members of the court agreed, said:

"There was a significant issue whether the statements made by the [petitioner] in the third person were intended to convey what he himself did. In my opinion, looking at all of the evidence relating to the interviews, the jury were entitled to infer that the [petitioner] was clearly referring to himself when he spoke in the third person. There were times when I gained the distinct impression that some of the things said by the [petitioner] in the third person in the video interview were a deliberate attempt to cloud the issue or simply an attempt to be clever." (Mallard v The Queen, unreported; CCA SCt of WA; Library No 960505; 11 September 1996.)

Having had the opportunity to view the videotaped interview ourselves, we would agree with those observations.

Fresh/new/undisclosed evidence relating to the murder weapon Grounds A, B(iii)

82 According to Superintendent Caporn, in the interview of 10 June 1994 he asked the petitioner "What did he hit her with?" and the petitioner replied "A wrench". Inspector Brandham said that, when asked to draw the murder weapon, the petitioner drew a wrench. That drawing became an exhibit. Mr Lawrence said that he felt that there might have been a Sidchrome spanner missing from the back shed. ("Wrench" and "spanner" are of course synonymous terms.) However, the back shed appears to have been one primarily used by Mrs Lawrence for her business purposes in creating jewellery. The evidence was that it contained a variety of different sorts of tools, and that Mr Lawrence could not be quite sure what, if anything, was missing. There was evidence that there was also in the shed a variety of copper anodes, used in the electro plating of jewellery, many but not all of which had a considerable quantity of copper sulphate adhering to them.

83 At trial, the petitioner denied saying that Mrs Lawrence was killed with a wrench. He gave evidence that his sketch of the wrench was "a sketch of a supposed weapon that we were talking about in our theory which I said was a gas wrench to be used on acetylene equipment. I have no idea what a gas wrench looks like. That is what I assumed it would look like in my theory." At the time at which he drew the wrench the petitioner described it as a "big pipe wrench that had a ratchet system and was rusty". He said it was similar to the one he had drawn.

84 The Crown opened and closed the prosecution case on the basis that the wrench drawn by the petitioner was the murder weapon. It apparently did so largely relying upon his confession. It was acknowledged that there were other possibilities. In closing, there was reference made in passing to the iron bar which Ms Raine said she had seen the petitioner holding and in that connection there was reference to the fact that particles of iron oxide (that is, rust) had been found in Mrs Lawrence's wounds.

85 His Honour, the learned trial Judge, directed the jury:

"You may need to form a conclusion about the nature of the weapon. Certainly it would seem not the anodes, not the copper anodes, but is it a wrench of the type that was drawn in the sketch and that sort of size ... "

It is to be noted that his Honour apparently did not regard it as essential for the jury to form a view about the nature of the weapon.

86 As noted earlier, as well as evidence relating to iron oxide there was also evidence that there was some blue pigment in Mrs Lawrence's wounds. There was no significant amount of copper, which on the evidence at trial ruled out at least those anodes which had deposits of copper sulphate on them. The evidence of the petitioner's witness Dr Jerreat, on this appeal, was that even a clean anode would cause copper deposit in the wounds, so we can rule out the anodes altogether.

87 In the light of the evidence at trial, the petitioner submits that the following material, adduced in evidence on this reference, establishes that a wrench of the type drawn by him could not have been the murder weapon, and that the non-disclosure of that material which was not disclosed, together with the fresh or new evidence obtained on the point, leads to the conclusion that he has lost a chance reasonably open to him of acquittal. That material is:

• In a comprehensive summary of facts sent to the Director of Public Prosecutions, Superintendent Shervill stated that a crescent wrench was tested which inflicted dissimilar wounds to those apparently inflicted on Mrs Lawrence. That was a reference to an experiment conducted by the forensic pathologist and certain police officers, in which both a copper anode and a wrench were used to hit a pig's head in order to attempt to replicate Mrs Lawrence's wounds.

• Sidchrome wrenches (that being the brand written on the drawing by the appellant) are because of their composition not likely to rust.

• Sidchrome has never supplied the Australian market with a Sidchrome wrench or spanner painted in any blue colour, while a blue paint layer from a forklift located near the deceased's premises did contain Prussian Blue pigment.

• A wrench "could not have caused many of the injuries to the deceased because it had a blunt crushing-type mechanism rather than a chopping-type mechanism" according to the forensic pathologist Mr Cooke.

• Dr Cooke had inspected a variety of tools, including spanners, in a friend's workshop and had been unable to find one which appeared to be capable of matching certain of the wounds sustained by Mrs Lawrence. Similarly, Detectives Brandon and Carter had attempted without success to locate a wrench which would be likely to produce wounds similar to certain of those described on the scalp of Mrs Lawrence.

• Finally, in 2002, at the request of those acting on behalf of the petitioner, Mr Cooke performed a further experiment with a pig's head, using a Sidchrome spanner supplied to him, and was not able to replicate certain of the injuries sustained by Mrs Lawrence.

88 The material relating to the rust and the paint can be quickly disposed of. Although the petitioner's drawing of the wrench labelled it a "Sidchrome", he also described it as "rusty". Two obvious possibilities, if a wrench/spanner were the relevant weapon, were either that he was mistaken in his recollection as to the brand, or alternatively that rust had adhered to it as a result of its having been stored with or used on some rusty object.

89 So far as the paint was concerned, it does not seem to have been suggested at trial that the entire weapon was blue. Rather, it appears from the outset to have been more likely that it had some blue adhering to it. A layer of blue paint from the forklift was indistinguishable from the blue paint specks found in the deceased's head wounds. However, paint of that colour and composition is relatively common. There were further layers in the paint from the forklift, which were of a composition not reflected in material found in Mrs Lawrence's head wounds. For that reason Mr Lynch, principal chemist at the Chemistry Centre WA, said in evidence on this appeal that he considered it unlikely that the forklift was the source of the paint in Mrs Lawrence's wounds.

90 So far as the rest of the material is concerned, although it has a number of nuances and variations, the broad thrust of the petitioner's submission can be summarised as being to the effect that: a wrench could not have been the murder weapon; and this fact was known to the prosecution but not disclosed to the defence. Had the jury known that it could not have been the weapon, doubt would have been cast on the petitioner's confession to use of a wrench as the weapon. That proposition falls to be evaluated against the evidence given at trial, and the evidence given before us, as to the likely weapon.

91 Dr Cooke, the forensic pathologist, gave evidence at a preliminary hearing. It is to be noted from the transcript that at that preliminary hearing defence counsel was assisted by Dr Pocock, also a forensic pathologist, who sat with defence counsel, heard the evidence of Dr Cooke, and viewed the photographs tendered through him. Dr Cooke's evidence commenced with a description of the injuries. As to the weapon, he was asked: " ... Are you able to say what might have caused these particular injuries?". His reply was as follows:

"It's always difficult to make that assessment, of course; certainly a heavy type of object. 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, as shown on page 11 of my report, shown a metal bar, which I understand was a copper anode or cathode used as part of electrolysis, and I thought that showed – that type of weapon bar may have fitted some of these injuries quite well."

In response to a further question, he reiterated that some of the lacerations were non-specific but others fitted the anode very well. He was asked: "Right, so it may have been caused by that implement or some other blunt instrument?". His answer was "or something similar ... ". Some further cross-examination revealed that for a short time counsel appeared to have been under the impression that Dr Cooke had been shown an iron bar, rather than the copper anode. However, Dr Cooke then described the copper anode in some detail.

92 At trial, Dr Cooke's evidence was along the following lines. He again explained that he was shown the heavy copper bar or anode. He described it in more detail and identified photographs of it. He described the experiment with the pig's head, to the extent of explaining that he had struck the pig's head with the anode to establish what the result would be in terms of the shape of wounds. (We note that it was Dr Cooke's evidence before us that at the time of the hearing of the appeal, he had forgotten any experiment involving a crescent spanner; whether he recalled that experiment at the time of the trial is simply not known.) He described the shape of the injuries to the skin of the pig's head as being "close" to the injuries on Mrs Lawrence's skull.

93 However, he noted that the anode was very heavy and unwieldy and that it was difficult to strike the pig's head with it. He noted also that the copper sulphate on those bars was deposited in the pig's head and that no similar deposits were found in Mrs Lawrence's wounds.

94 He was then shown the videotape of the appellant's confession and made the observation that he thought it "fits fairly closely" with the sites of the injuries actually found.

95 Asked whether the injuries to Mrs Lawrence were consistent with being struck with a blunt object, he answered that they were. Cross-examined about the copper anode and the injuries, he agreed that one of the things which led to his conclusion that the implement fitted the injuries reasonably well, was the sharpness of the edge of the anode. He went on to explain that it was not tremendously sharp, like a knife edge, but that it "has a degree of pointiness" to it. By way analogy, he suggested that if one pictured a ship's hull with the bow and the stern, viewed from above, then the bow would have the right sort of profile for the injuries. That was discussed in some detail. He was not specifically asked at any time whether a wrench or spanner could have caused the injuries, nor did he suggest that such a weapon could have caused them.

96 At the appeal, he gave evidence in more detail, but to the same effect, in respect of the copper anode, explaining precisely what it was about the profile of that anode which fitted with aspects of the injuries to Mrs Lawrence's skull. He again noted that certain of the injuries were non-specific and could have been caused by almost any heavy object, but that others appeared to have a particular sort of profile. He explained that the anode was very heavy and unwieldy and that it was difficult to inflict injuries with the anode; indeed, the anode deformed when used. He again referred to the bow of a ship analogy in describing the type of implement which he considered to be relevant.

97 He referred to an experiment he had conducted with a block splitter subsequent to the trial, and told the court that the head of that implement caused an injury which resembled a portion of the wounds to Mrs Lawrence's head, but that because of the lack of a "shoulder" where the head joined the handle, the block splitter was in certain respects inconsistent with the injuries inflicted. He accepted that there were wrenches which could have the "shouldering" shape which he considered would fit with the injuries.

98 As we have noted, Dr Cooke told the court he had no recollection of an experiment with a wrench. However, he also said that he was asked several times prior to trial whether a wrench could cause injuries of the type found. It appears that those questions came from the investigating police or from the prosecutor. He said: "A specific type of wrench was never put to me, but I was many times asked could a wrench cause them. My answer then, as now, was yes, a wrench could cause them." Although he was ready to admit that a wrench could cause the injuries and he was still of that view, he had not yet been shown a wrench which he felt comfortable with, because none had a shape similar to the anode.

99 He described attending a friend's mechanical workshop prior to trial to examine a range of tools including wrenches, but not finding a tool which fitted the profile he was looking for. He did not visit a gasfitter's workshop, since the possibility of a gasfitter's wrench was not at that time put to him.

100 During cross-examination and re-examination, he was shown pictures of two different types of wrenches, taken from the internet, and a variety of other possible wrenches or spanners were hypothetically put to him. Some of those he agreed had, or might have, features which would take them closer to being an implement capable of inflicting the precise wounds which he had found on Mrs Lawrence.

101 In the end, his evidence on this appeal is perhaps best summed up in the following questions and answers from re-examination:

"But you said that you have always accepted ... that it's possible that a wrench could inflict those injuries? – Yes.



Have you ever found such a wrench that would do that – Not to my entire satisfaction, no. No not at all."

102 The position then seems to us to be as follows. At trial, it was clear that the implement which Dr Cooke described as best fitting the profile of the wounds found on the head of the deceased was an implement which was different in shape from an ordinary Sidchrome adjustable spanner. Although there was some argument before us about the interpretation of the petitioner's very roughly sketched drawing of the murder weapon, it seems reasonably clear that the description given at trial of the implement best fitting the profiles of some of the wounds, was an implement not identical with that drawn by the petitioner.

103 The evidence at trial was not that the wounds were consistent with being inflicted by either a spanner or a wrench, but that they were consistent with infliction by a blunt instrument, albeit that some were consistent with one which had some sort of chopping edge. It was always Dr Cooke's view that the injuries could have been made by a wrench of some type, and that was the evidence which he would have given at trial, had he been asked. We note that the appellant's witness on this appeal, Dr Jerreat, "could not exclude" such a weapon.

104 Looking at that material in the light of the petitioner's description and drawing, the evidence would appear to support two propositions; first, that the petitioner had not drawn the murder weapon with precision; second, that an implement with some similarities to that drawn by the petitioner might have been capable of being the murder weapon. The evidence before us of Mr Hogan, the petitioner's counsel at trial, was that he understood (in our view accurately) that the Crown asserted the weapon to be "similar" to that drawn by the petitioner, and that he always took the view that the jury could have found that the weapon was not a wrench.

105 In our view, nothing in the evidence before us relating to the likely murder weapon alters the position as it was seen to be at trial. The more detailed material which is before us as to the experiments of Dr Cooke, both before and after the trial, with different implements, and the material concerning the efforts to find an appropriate implement, go no further than establishing that no wrench which can clearly be said to be capable of inflicting injuries of the type seen on the deceased has been found. Indeed, no implement capable of inflicting precisely those injuries has been found.

106 There must at trial have been room for doubt about the murder weapon, in part because of the evidence of Dr Cooke as to the appropriate profile, and in part because of the evidence of Ms Raine as to the iron bar which, if the jury accepted that she had seen the petitioner, would have suggested an entirely different weapon. Although the evidence as to the experiments and enquiries in relation to the murder weapon which were conducted prior to trial should in our view have been disclosed to the defence, the petitioner has not thereby lost a chance of acquittal reasonably open to him. All that that evidence was capable of doing, was giving greater weight or emphasis to evidence already before the jury which suggested that the identity of the murder weapon could not be established with certainty.

107 Finally, it is desirable to refer briefly to the apparent significance of the murder weapon at trial. In some cases, it might be that even a "greater emphasis" upon uncertainty surrounding this issue would be critical, so that non disclosure of material touching that issue would inevitably affect the fairness of the trial. This is not such a case, for a number of reasons. First, as we have noted, an iron bar was an alternative weapon, on one view. The identity of the weapon, though often referred to as a wrench (no doubt because of the petitioner's description) was not advanced by the prosecution as one of the "15 things", known to the murderer, which had been described by the petitioner. The issue about the weapon, to the extent there was an issue, arose in the context of a trial in which it was clear that the petitioner had at some points confessed in a manner inconsistent with the known facts (as, for example, in the video interview in which he described Mrs Lawrence's purse as a "glomesh" purse). Some, but not all, of the inconsistencies between the confessions and the known facts were specifically referred to by the learned trial Judge in his directions to the jury. A confession to the use of a weapon which may not have been that actually used, would have been but one more inconsistency. Last, we note that before us, there was evidence of a conversation the petitioner had with an undercover police officer, in which he informed the officer that the weapon was not "a monkey wrench like the cops thought, but in fact a gasfitter's wrench ... ". This emphasises the possibility of some deliberate misdescription of the weapon by him, consistent with what the jury may well have found to be his deliberate misdescription of the purse and other matters.

The evidence of Ms Barsden (Ground F)

108 As noted, Ms Barsden was a young girl who gave evidence at the trial that she had seen a male person in Flora Metallica shortly after 5 pm on the evening in question, in an area of the shop where customers would not normally be found. It was her evidence that she felt that the man had seen her looking at him and that once they made what she felt to be eye contact, he had "ducked down". The importance of her evidence was not so much as evidence identifying the petitioner as a person in the shop at the relevant time; to the extent that it might have identified the petitioner, it had the weaknesses inherent in all momentary identification. However, the particular significance of her evidence was that it corresponded closely with the petitioner's account of being in the shop, and being seen by a passenger in a car stopped at the traffic lights, with whom he "locked eyes".

109 On the appeal, the petitioner complains of the failure of the prosecution to disclose either certain sketches made by Ms Barsden on the evening in question, or the various drafts of statements which led to her deposition. In the light of the very close correspondence – some might say the exact correspondence – between the materials contained in those documents and the evidence actually given by Ms Barsden at trial, it is difficult to see how this can seriously be advanced as giving rise to any possibility of a miscarriage of justice. It appears to us that the very reasonable explanation for non-disclosure of those documents was that there was no material difference between them and the evidence of Ms Barsden which was disclosed.

110 Turning first to the sketches, when Ms Barsden returned to her home that evening and attempted to describe to her mother what she had seen in Flora Metallica, she drew some rough sketches in pencil and in felt tip pen, which she annotated. At the hearing of this appeal she said that they were quick sketches prepared for her mother in order to illustrate key features of what she was attempting to explain to her mother. The drawing, it has been stressed by counsel for the petitioner, apparently shows a person with a beard but does not show a moustache. There is no visible hair. The annotation describes the head covering worn by the person as a scarf with a solid border, orangey colour, and "some green and blue in the pattern". It also mentions a "long face".

111 The description which Ms Barsden gave at trial was of a person with a slight beard, orange strawberry blonde in colour (corresponding precisely with the drawing and annotation). There was no mention of a moustache, also corresponding with the drawing. The man was described as having a scarf on his head with a rustic orange border or a "rustic orange colour" and a slight pattern of blue and green (corresponding with the annotation).

112 There had also been disclosed to the defence a drawing prepared by a police artist under Ms Barsden's direction, which depicted a person with a scarf on his head, a stubbly type of beard and faint, if any, moustache. It is hardly surprising that it was not thought necessary to disclose Ms Barsden's rough child-like sketches, since they conveyed no different information.

113 So far as the various alterations to the statement were concerned, they were relatively few and appear for the most part not to have gone to any matter of significance. For example, the statement clarified the fact that Ms Barsden's grandmother was driving the car and that Ms Barsden was sitting in the front passenger seat. As Ms Barsden was 13 years of age at the time, that is what one would have expected. The principal difference is that as the various alterations to the original statements were made, the description of the man as wearing a "gypsy-type scarf" of a light material with an orange border and mixed colours with blue and green and cream was altered, so that the deposition eventually described the man as wearing "what looked like" a gypsy-type scarf, and the patterning was described as "mixed coloured and patterned" with references to specific colours omitted. There was an addition of a reference to Ms Barsden having been shown a cap and not being able to say if it was what she saw on the man in Flora Metallica, but being able to say that it has "the same colours of what I saw".

114 The cap sometimes worn by Mr Mallard was in evidence at the trial and before us. It is a velour cap with an orange braid border. It is reddish in colour (at the appeal before us Ms Barsden referred to a "terracotta orange" and terracotta might be an alternative description). It has a small pattern which is in shades of brown. The pattern appears to be faded in some parts. The cap is made of a velour-type material and therefore has a nap; that is, rather than being a flat weave, it has a short pile which reflects light at different angles as the wearer moves. The colour therefore appears to alter somewhat, particularly altering from light to dark, with the angle of the light. From a distance, it is difficult to determine what colour or colours appear in the pattern.

115 So far as the various alterations to the statement were concerned, it was Ms Barsden's evidence before us that alterations were never made to her statement other than in her presence. Although she had no specific recollection of why some changes were made, her evidence was that changes were only made at her request. The only alteration which appears to be of any significance is the removal of the reference to the mixed colours of blue and green. However, that evidence was in fact given by Ms Barsden at the trial. She was not cross-examined about it. Cross-examined before us, her evidence was that what she was attempting to convey was a small pattern of mixed colours. She commented we are "not talking primary colours here" and her evidence before us was that the pattern and colours of the cap, which she was shown again, were "extremely close, if not the same" as the pattern and colours of the object on the head of the person she saw in the shop.

116 It can be seen then that Ms Barsden's initial statement and sketches corresponded very closely with the evidence she gave at trial. There were really no discrepancies for counsel to explore. It was also suggested however that, if the sketches had been disclosed, it would have been clear to counsel that Ms Barsden was describing a person with a beard, but no moustache. There was some cross-examination of Ms Barsden at trial about the beard and its length. She described it as being a beard covering both sides of the face, "like re-growth", and that there "might have been more hair around where a goatee would be". There is plainly no mention of a moustache. The photographs of the petitioner taken at the time of his arrest show him with a quantity of facial hair around his cheeks and chin; there was some debate at the appeal as to whether this could be described as stubble or re-growth or as a light beard, or as a goatee together with some stubble, but all of that is obviously a jury question. Likewise, it is clear from the photograph that the petitioner had a substantial moustache. All of that was material which was before the jury at the trial. Any apparent differences between Ms Barsden's description and the actual appearance of either the petitioner or the cap were matters the jury was well able to evaluate. The materials not disclosed throw up no additional differences. There is simply no substance in this issue at all.

117 For completeness, we note that it was also sought to make something at the appeal of the fact that Ms Barsden described the person she saw as of "medium build". It is not clear, and she was never asked, whether she was referring to the petitioner's build in the sense of his being heavy or light, or to his height. It appears that in discussions with the police artist she arrived at an estimate of approximately 6 foot (183 cms). The petitioner is in fact considerably taller, being approximately 6 ft 7 (199 cms). She was not asked at trial about any estimate of height, and, as we have noted, the question of what was meant by "medium build" was not clarified with her. We cannot see this as being an issue of any significance, given that Ms Barsden's estimate of height was that of a 13-year-old girl, seated in a motor vehicle, estimating the height of a standing person some little distance away. It should also be noted that it is an estimate consistent with some estimates given by other persons who can only have been describing the petitioner; for example, the taxi driver who took him to Mosman Park on the afternoon of the murder estimated his height as "about 6 feet".

Evidence of Ms Engelhardt (Ground G)

118 It should be recalled that Ms Engelhardt was the person with whom the petitioner had for a time shared a flat. Her evidence at trial was that on the day of the murder she had been at the flat from approximately 3 pm and that the petitioner had returned at approximately 6.30 pm, leaving thereafter at a little after 7 pm. It was clear from other evidence that her estimate of his departure after 7 pm could not have been correct. The significance of her evidence was that it contradicted a possible account of the petitioner's movements and meant that, so far as she was concerned, he was absent from the flat during the period within which the murder must have been committed. Other witnesses also gave evidence about his movements to and from the flat.

119 There are two aspects of the notice of appeal which bear on Ms Engelhardt's evidence. The first is, that the police had in their possession and did not disclose to the defence at trial a draft statement of Ms Engelhardt which differed in two relevant respects from the deposition which she eventually signed and which was provided to the defence. The second relates to evidence which she was prepared to give on the hearing of this appeal. The two are interrelated.

120 In the handwritten draft statement, in a passage dealing with the time after 3 pm and before 6.30 pm on the day of the murder, appears the sentence "[The petitioner's] hat was hanging above my door inside". Other portions of the statement make it clear that the hat is the velour cap previously described. A little later, the handwritten statement, describing the petitioner's appearance at the flat at 6.30 pm, contains the sentence "He didn't have any sought [sic] of headwear on". The sentence about the hat hanging above the door has a somewhat different appearance from the rest of the portions of the handwritten statement. Although it is in the same handwriting, the line spacing is somewhat closer than the balance of the document. It gives the appearance of a sentence inserted as something of an afterthought. That was also the opinion of Superintendent Caporn, who interviewed Ms Engelhardt at the time, although he had no independent recollection of the manner of taking of the handwritten statement.

121 Superintendent Caporn also obtained a typewritten statement from Ms Engelhardt, that being the deposition which was provided to the defence. In his affidavit sworn for the purpose of this appeal he deposes that "Other than excluding hearsay, supposition and irrelevancies," the typewritten statement did not differ significantly in content from the handwritten statement. In evidence during the course of this appeal, the Superintendent said he was unable to say precisely why any particular changes had been made between the handwritten and the typewritten statement. However, it was his recollection that Ms Engelhardt had displayed considerable confusion and uncertainty about clothing which the petitioner had been wearing at any particular time. Any such confusion would not be surprising, for reasons which we explore shortly.

122 The typewritten deposition does not contain the sentence to the effect that the petitioner's hat was hanging above the door. In place of the sentence about not having any sort of headwear on, there appears in the typewritten deposition the sentence "I'm not sure of what trousers he had on or if he was wearing his cap. It was raining and he was wet."

123 At the preliminary hearing Ms Engelhardt's evidence made no reference to whether or not he was wearing a cap on that occasion, but was to the effect that his hair was "dripping" wet. At trial her evidence was that the cap was commonly on the hook over the door, and that he wore it about "half the time" (although in cross-examination, in response to the proposition that she had only seen him wearing it on one occasion, she replied that she did not know). She also said at trial that he was wet when he returned to the flat and that he had gone straight to the bathroom on that occasion and emerged drying his hair.

124 The significance of any evidence from Ms Engelhardt to the effect that the appellant's cap was hanging over her door between the hours of 3.00 and 6.30 pm is clear. Any credible evidence to that effect, whether positively believed by a jury or not, would cast doubt on the proposition that it was the appellant who had been seen by Ms Barsden in Flora Metallica. It would not positively rule the appellant out, since the evidence at trial was that there were two other bandanna-type items, although of different colours, which he usually had in his possession. However, it was the cap which Ms Barsden thought was very similar to what she had seen.

125 The fact that Ms Barsden had described an incident in which someone looking out of the shop had apparently seen her looking at him and had "ducked down" was very significant confirmation of the accuracy of the petitioner's statement to police about being in the shop at about the same time and being seen by someone on that occasion. Doubt cast upon that account would weaken an important support for the accuracy of the confession which he made.

126 It seems not to be in dispute that the handwritten statement of Ms Engelhardt should have been disclosed, and would have been something in relation to which defence counsel would have wished to cross-examine her. The question which arises in this matter is whether the existence of that handwritten statement, in the light of the evidence given at trial and on the appeal, gives rise to a significant possibility that, had it been available, the petitioner might have been acquitted; or whether he has, to use the expression from Grey, lost a chance fairly open to him of being acquitted.

127 Having regard to the circumstances in which Ms Engelhardt knew the petitioner, her circumstances at the time of trial, her evidence at trial and particularly having regard to her evidence at the hearing of this appeal, we are of the view that the petitioner has not lost such a chance. This is so, either for the reason that Ms Engelhardt would not at trial, if cross-examined on the handwritten statement, have been prepared to accept that the petitioner's cap had been hanging above the door; or alternatively that, if she had given evidence that the cap was hanging above the door, that evidence would have been entirely lacking in cogency and plausibility. In order to understand that view, it is necessary to elaborate somewhat on Ms Engelhardt's evidence.

128 Ms Engelhardt was one of a number of witnesses at the trial who gave evidence about the somewhat peculiar habits of the petitioner in relation to clothing. It was clear that his clothing was unusual and colourful; items in his wardrobe included the cap, colourful paint-spattered torn jeans, green, red or purple shirts and T-shirts and a stick or staff which he often adorned with a rag or scarf. He was in the habit of wearing numerous layers of clothing at one time, and of removing or varying them during the course of the day. On occasion, for example, he would wear two pairs of trousers and a pair of shorts, all at the same time. On the first occasion on which Ms Engelhardt met him, he was wearing the paint-spattered jeans and during the course of that time removed them to reveal purple loose pants which he was wearing underneath. It is not surprising that Ms Engelhardt was somewhat confused about what clothing he may have been wearing on any particular occasion.

129 At the time of first meeting the petitioner, Ms Engelhardt was a very heavy user of cannabis. She conceded in cross-examination at trial that she had been using a lot at the time and that it affected her memory. By the time she came to give evidence at trial, she was in an advanced state of pregnancy and had been abstaining from drugs for some time.

130 Although it does not appear that she bore any particular malice towards the petitioner, she had reason, at about the time she was first interviewed by police, not to like him and to be concerned about his behaviour. For example, he had been staying in her flat on the understanding that he would pay the rent or some of it, but had apparently failed to do so. He had told Ms Engelhardt a number of stories about being an undercover police officer or working for Interpol and being on an assignment of some kind directed against the Mafia. In addition to those matters, which Ms Engelhardt in due course discovered were quite false, he had given her a name which she discovered to be false. It appears that at some time during the investigation of the murder, police assisted Ms Engelhardt to move house, because of some concern for her welfare if the petitioner were released from Graylands and attempted to contact her. So far as one can discern from those matters and from the flavour of Ms Engelhardt's examination and cross-examination both at the preliminary hearing and at trial, she might be said to be a witness largely favourable to the Crown and one who, although not consciously biased against the petitioner, would be unlikely to be favourably disposed towards him.

131 By the time of the hearing of this appeal, it seems that significant changes had taken place in Ms Engelhardt's attitude. It is difficult to convey the flavour of her lengthy cross-examination. However, the following features should be noted.

132 It seems that at some time during the course of the investigation of the murder, Ms Engelhardt gained the impression that a charge against her, relating to possession of an implement for the smoking of cannabis, would be "dropped". This did not occur. She swore an affidavit for the purpose of this appeal in which she deposed that it was suggested to her by police that they would not pursue that charge if she was "helpful" with their enquiries. She appeared annoyed by the failure to drop the charge.

133 By the time of the hearing of this appeal, Ms Engelhardt had been contacted by a very large number of people in relation to this matter. She had had discussions with some of them, and it appears that others had attempted to discuss matters with her but she had not been willing to participate. They included a writer, a journalist, a prison chaplain (all of whom it appears informed her that there was reason to believe that the petitioner was innocent); the petitioner's mother; lawyers representing the petitioner; and detectives who were concerned about the allegations in the affidavit which she had sworn. While it is understandable that those acting for the petitioner and for the respondent would wish to know if Ms Engelhardt could shed light on any matters relevant to this appeal, the unfortunate result of all those approaches appears to have been that by the time she came to give evidence Ms Engelhardt was hopelessly confused about what had and had not occurred, and resentful of the entire process, so that she quickly became frustrated and upset if asked to make the effort to recall particular matters. At a number of points during the course of her cross-examination she made observations to the effect of the following answer:

"If I'm seen as an unreliable witness, am I allowed – exempt from this whole thing? Can I leave? Because I've got a terrible flu, I can't really remember anything."

134 At one point during the course of her evidence in the appeal, Ms Engelhardt was prepared to say that the hat had been hanging on the hook over her door between 3.00 and 6.30 pm on the evening of the murder. However, she also said: that although she had a memory of seeing the hat there, she could not say when or what day that recollection related to; that she had not recalled the hat at all until she spoke to counsel for the petitioner; that if she had seen the hat on the hook on the day in question it could have been any time that day; that she did not remember what her recollection, if any, was about the hat when she came to sign her handwritten statement; that she did not want to commit to something she was not one hundred per cent sure of; that there were things in her handwritten statement that she became uncertain about; and that she assumed that the petitioner did not have the hat on the day in question because it had been hanging on her hook on the day the police took him away (which is apparently a reference to the following day).

135 The conclusion which we draw, then, is as follows. It seems most probable that the whereabouts of the cap between 3 and 6.30 pm on that evening was one of the matters in her handwritten statement about which Ms Engelhardt became unsure, and to which she would not have been prepared to commit herself in evidence at the trial. That appears to us to be the natural and probable reason for the alteration, and the evidence of Ms Engelhardt on the appeal, to the extent that it sheds any light upon that issue, tends to confirm that view. To the extent that Ms Engelhardt was prepared on the hearing of this appeal to suggest that she had a positive recollection of seeing the cap over the door at the relevant time, it is our view that because of the manner in which that evidence was given and its context, it must be regarded as so lacking in plausibility and cogency as to be unable to cast any doubt upon the evidence given at trial.

State of the petitioner's clothing (Ground B(iii), (v))

136 There are a number of aspects of the grounds of appeal which go to this issue. By way of background, in tests conducted and disclosed prior to trial, no blood of Mrs Lawrence was found on any of the petitioner's clothing. During the course of his confession the evidence was that the petitioner had said that, in relation to Mrs Lawrence's purse and his clothes "I washed them in salt water because salt water fucks with forensics". He said that he did this down by the river near the bridge (Stirling Bridge). He said he "soaked them in salt water just where the waves were lapping. I pushed the [credit] cards into the sand, at the same time washing my hands [Inspector Brandham observed a wash/hand rubbing motion] and looking around to make sure no-one was looking". Asked whether he was wet when he returned to Ms Engelhardt's flat, he answered "Yes soaked, I washed my clothes and it was raining too".

137 There is a combination of undisclosed material and arguably fresh evidence which is relevant to the state of the petitioner's clothing. There was not disclosed to the defence prior to or at trial a report of Mr Lynch, the principal chemist at the forensic science laboratory, who had tested certain items of clothing (jeans, shirts and trousers) seized from the petitioner. That report revealed that the residual soluble salts detected in the clothing items were not consistent with immersion in river water, as represented by a sample of the water from adjacent to the Stirling Bridge, unless they were subsequently washed in fresh water. The petitioner's shoes were also examined visually and no visual indication of immersion was evident. In relation to the last item, Mr Lynch was not asked at the hearing of this appeal what visual signs of immersion might have been expected to be seen. That report clearly should have been disclosed.

138 Earlier this year, Mr Lynch performed an experiment in which he soaked new cotton clothing (jeans and a shirt), and a silk shirt, in a sample of water from near the Stirling Bridge, and then performed a test designed to determine whether heavy rainfall would have removed all traces of immersion in river water. His opinion was that the jeans and cotton flannel shirt, but not the silk shirt, retained very elevated levels of residual salinity after exposure to significant rainfall. In brief, if Mr Mallard had washed jeans or cotton clothing worn by him in the river in such a manner as to wet them thoroughly, it appears from the tests that rain water would not have washed out those high residual levels of salinity. The view always expressed by Mr Lynch was that subsequent washing in fresh water, even without any detergent or soap, could easily wash out those levels of salinity.

139 Further tests conducted on the petitioner's clothing in 2003 found no evidence of the DNA of the deceased on the petitioner's clothing. Although tests for blood of the deceased were conducted at the time of trial, the tests which were more recently conducted are of a more sensitive kind, and it seems to be common ground that tests of this kind were simply unavailable in 1994. In that sense, the evidence is "fresh" although the results are relevantly the same as the results of the earlier tests for blood – that is, no material relating to the deceased was found on the petitioner's clothing.

140 Various arguments were addressed to us on behalf of the petitioner and the respondent, directed to the amount of blood from the deceased which might have been expected to have been found on the petitioner's clothing in any event. It was a premise of the petitioner's argument, to an extent, that his clothing would in some areas at least have been heavily soiled with blood, so that the failure to locate any of the deceased's DNA was particularly significant. There was a related argument advanced to us, which was not based on any fresh or new or non-disclosed material, and which was made at trial (although not in precisely the same way) that if the petitioner had killed Mrs Lawrence then those persons who saw him subsequently should have observed blood on his clothing, but did not.

141 In relation to the degree of blood spattering or soiling likely to be found on the petitioner's clothing, we agree with the comment made by the Court of Criminal Appeal in the earlier appeal that that is somewhat speculative. At trial Dr Cooke said that as a result of blows to the head there "may well" have been spattering of blood. His evidence was that with each individual blow there may not necessarily be a lot of spattering, but once the injury was suffered the blood would well-up and flow quickly. Dr Cooke thought that there would have been heavy blood soiling of the arms, hands or gloves, but by that he meant a heavy "spatter". Mr Bagdonavicius, medical scientist in the forensic biology section at the Path Centre at the relevant time, gave evidence at trial that if there was any blood on the clothing it would only be around the lower legs.

142 Mr Hall, the forensic witness called on behalf of the petitioner at the hearing of this appeal, considered that whether one would expect to see blood spatter on an assailant during the course of an assault is very difficult to determine. He noted that there was experimental evidence that demonstrated that it was possible to generate considerable "forward spatter" in the course of an assault with very little blood settling onto the assailant.

143 It appears therefore that, while there may well have been blood on the hands and/or arms and perhaps on the lower part of the jeans or trousers of the petitioner, the amount to be expected cannot be determined. We see no reason to depart from the view expressed by the Court of Criminal Appeal on the previous occasion in relation to the significance, if any, of the petitioner's not being observed by any person to have blood on him.

144 Turning to the undisclosed material and the more recent experiments, the first observation to be made is that the petitioner denied at trial that he had killed Mrs Lawrence or had done any of the things which he had confessed to doing, including washing his clothes in the river. He was not asked therefore, and there would have been no point in asking him, precisely what he meant by washing them in the river. It is not clear from the confessional statements which he made whether he was intending to convey a washing of part of his clothing while he was wearing it, or a partial or total immersion of his clothing and/or himself in the river. It is not clear what items of clothing he was referring to. The question of whether he was wearing shoes at the time of washing (he frequently going barefoot) and, if so, whether he immersed the shoes in water or removed them for the purpose of going down to the water is all entirely speculative.

145 However, it is fair to suggest that tests showing that none of the clothing worn by the petitioner could have been immersed in river water would have been of some significance. However, it is our view that the tests conducted are not capable of demonstrating that none of the petitioner's clothing had been immersed in river water, for the reason that at least two of the four items tested had been washed by the petitioner prior to testing, in fresh water.

146 On 30 May 1994, prior to seizing the petitioner's clothing, Superintendent Caporn said to him: "We need to take your clothing. Have you washed any of this?" The petitioner replied: "There is no dirty washing. I did it all yesterday." In his evidence on the appeal, the petitioner admitted washing the blue jeans. He was not asked about the red shirt. He denied washing the trousers. He also denied washing the green shirt, claiming that since it was silk it needed to be dry-cleaned. So far as the jeans and the red shirt are concerned, then, there is uncontradicted evidence that they had been washed. So far as the green shirt is concerned, one might have some reservations about the petitioner's evidence that it had not been washed because it required dry-cleaning. There is some implausibility in the concept of a person who lived the petitioner's hand-to-mouth lifestyle, with no fixed abode, getting his living by "scamming" as he at one point put it, and wearing clothing which was eccentric, stained and torn, being likely to go to the trouble of dry-cleaning the shirt. Putting that to one side however, it is to be noted that a silk shirt (of a thin fabric) was the item from which apparently rainwater might, having regard to Mr Lynch's experiments, be thought to remove residual salts.

147 That analysis leaves only the blue trousers as items which, had they been washed in river water, might have had residual salts in them, if one accepts the petitioner's evidence that they had not been washed prior to being seized. The difficulty there, however, is that there is evidence that the petitioner was wearing both the blue trousers and the jeans at various stages on the day of the murder. In accordance with his habit of layering clothing and changing during the day, it appears that at some time he wore both and on other occasions wore only one garment. It would be open to conclude that if the trousers bore no signs of immersion in river water, that was simply because they had not been worn at the time of the killing or that, if they had been worn, they had been under the jeans, so that only the jeans became spattered with blood and required washing.

148 Had it been open on the evidence to take a view that all of the items seized had not been washed, then it would follow that one would have expected at least one of them to bear some sign of immersion in river water. However, since only one or at most two of those items falls into the unwashed category, the failure to find any sign of immersion has no significance one way or the other.

149 Finally, as to the DNA testing, Mr Bagdonavicius' evidence on this appeal was that in 2003 he conducted tests on two pairs of jeans, the blue trousers, the shoes, and the green silk shirt. Selected areas were tested. No reportable DNA profiles were obtained from any of those items. The first comment to be made is that, as we have observed, the tests are in one sense identical to the tests which were before the jury at trial. The only difference is that the present tests were more sensitive and therefore, all things being equal, even more likely to detect DNA if present.

150 As Mr Bagdonavicius noted, dealing with a negative is very difficult. He sampled only those areas in which he thought it was possible there might be blood, so that only relatively small areas of the clothing were tested in any event. He selected areas of the trousers by bearing in mind that staining may well have been on the lower part of the garments as well as from possible blood splash present at the scene.

151 Mr Bagdonavicius said that the ability to obtain a DNA profile could be affected by the combined effects of washing and degradation. As to washing, he explained that biological material tended to become fixed over time, or with heat, so that it was easier to remove it from fabric the sooner the fabric was washed. Degradation affected the ability to obtain a DNA profile because the biological material would degrade over time. He said it "could take years". Most significantly, Mr Bagdonavicius' tests did not detect any reportable DNA material at all – not even from the petitioner.

152 Having regard to the fact that some at least of the items tested were washed relatively soon after the murder, to the fact that the more sensitive DNA test was conducted on material that may have degraded over the intervening decade, to the absence of any DNA even from the petitioner, and to the identity of result (in the sense of no relevant material being found) with the 1994 blood tests, it is our view that the recent DNA testing, even if relevantly fresh evidence, gives rise to no likelihood that a jury might return a different verdict taking it into account.

Original statement of Winch (Ground F – final paragraph)

153 The petitioner points out that in an original handwritten draft statement taken from a Mr Winch, who saw the petitioner in a shop in Fremantle on the evening in question but some time well after the murder, it is suggested that Mr Winch and the petitioner had "locked eyes". The draft was not disclosed to the defence. That expression was altered at some stage so that the final deposition of Winch, which was disclosed, simply recorded that the petitioner had stared at him in a way which made him feel uncomfortable.

154 The significance of this draft to the petitioner's case is not entirely clear. It was certainly the evidence of Superintendent Caporn that, during his interview with the petitioner, the petitioner had said that while he was in the shop he had "locked eyes" with a witness in a car outside. That expression was put to him on the videotape by Inspector Brandham, and he agreed that he had said that.

155 As we understood it, the suggestion which was being made was that the use of the similar phrase in two contexts should lead or could lead to an inference that the expression was not one used by the petitioner but one used by the police officers, and that it followed that the statement attributed to the petitioner had been invented by those officers; perhaps in the alternative it was being suggested that the expression was used by the petitioner because it had been suggested to him by the police officers, during the course of their suggesting to him the whole incident with the witness.

156 A passage in the petitioner's outline of submissions dated 10 June 2003, and which was repeated by counsel on a number of occasions, was to the effect that Ms Barsden had given evidence that she had "locked eyes" with a man in Flora Metallica as she was driven past. The suggestion, as we understand it, is that consciously or unconsciously that expression, used by police in their discussions with Ms Barsden, was then transferred by them to their discussions with the petitioner.

157 It appears to us that the appearance of the expression "locked eyes" in the handwritten statement of Winch is too flimsy a foundation for the submission which we understand to be built upon it. The submission is founded in part upon the factually erroneous proposition that Ms Barsden had always said that she had locked eyes with a man in Flora Metallica. A search of the trial transcript reveals that she used a similar expression only once, at trial. That was in cross-examination, when she said " ... I feel that the moment that our eyes locked was when he dropped down". It does not appear in any version of her draft statements or deposition, and it is not the evidence which she gave at the preliminary hearing. The gist of her evidence, and the flavour of the words that she used is, as she said at the preliminary hearing: "I saw the man and I was staring and I feel that he might have noticed that I was looking or made eye contact ... ". In effect, she was consistently saying that she assumed he saw her, because he looked at her and then bobbed down. In cross-examination on this appeal, she said that she was not trying to convey that he stared into her eyes or she into his.

158 It follows that there is no foundation for the suggestion that the expression "locked eyes" was used at any time in conversations between the police and Ms Barsden. The first reference to that expression appears in the interviews between the police and the petitioner. While the draft of Mr Winch's handwritten statement is undated, the sequence of events was such that he would have been interviewed after interviews between the police and the petitioner. That conclusion flows from the fact that prior to the interview with the petitioner in which he is alleged to have said that he had been to a porn shop in Fremantle, police had no reason to know that he may have entered a shop in that area.

159 Mr Winch was interviewed by Inspector Brandham, who gave evidence on this appeal that, as one would have expected, he was briefed by Superintendent Caporn after Superintendent Caporn had interviewed the petitioner and that he became aware of the expression "locked eyes" during the course of that briefing. The expression "locked eyes" is a striking way of describing eye contact which appears to at least one of the parties to have some significance. It is conceded by Inspector Brandham that the words were his and that they probably found their way into Winch's draft as a result of his awareness of that expression. The memorable nature of the expression, and its convenience for describing a particular sort of eye contact, is vividly illustrated by the fact that at trial the prosecutor and the trial Judge used it as a shorthand for what had been described by Ms Barsden in her evidence, notwithstanding that she used a similar expression only once, and by the fact that on the hearing of this appeal counsel for the petitioner used that expression to describe Ms Barsden's evidence at trial.

160 We are unable to see any substance in this point. Nor does it appear to us that the handwritten statement should have been disclosed, since it was in substance identical with the typed deposition which was disclosed.

Undisclosed information concerning other persons of interest (Ground E)

161 The portion of the notice of appeal dealing with this issue is entitled "Fresh evidence of the presence of additional suspects at the crime scene shortly before the murder". That characterisation is misleading in a number of respects. In what follows, we focus upon information concerning three individuals, other than Peter Lawrence, who are identified by the petitioner as being of relevance to this ground.

162 There were no "additional suspects". The evidence was that the police did not suspect any of the persons identified in relation to this ground as having possibly been the offender. The undisputed evidence was that 136 "persons of interest" had been "generated" by reports and information of various kinds during the course of the investigation. That fact was known to the defence at trial, although the various reports which "generated" those persons were not provided to the defence (and were not sought).

163 These three persons, along with obviously many others, were such persons, who were not considered, after investigation, to be relevant to the inquiry. Material concerning them was therefore not material which the prosecution had any duty to disclose. Indeed, if the view was taken that those persons were irrelevant, then it would have been wrong to render more complex the already difficult task of the defence by deluging them with information concerning the 136 persons. It is, of course, always possible that in making such a judgment the police may have been mistaken, but it is our view that in the present circumstances the judgment of irrelevance was correct.

164 Further, to describe one of the persons as being "at the crime scene" is taking a generous view. That person was seen approximately three kilometres away, although it is true that he was seen on foot at a time which would have permitted him to walk to Mosman Park so as to arrive at the crime scene at or before the relevant time.

165 Briefly, one of the persons was a man seen as wearing a "high-top beanie" in the general area at about the right time. The initial description was extremely vague. The evidence given in this Court made it clear that the headwear in question did not match any aspect of the description given by Ms Barsden.

166 Another person was reported because he was in the habit of wearing a bandanna on occasions. The police investigation into the report about him led Detective Senior Sergeant Carter to the view that the person's description was different from that of Ms Barsden. The person was identified, and enquiries revealed that he had not been sighted in the vicinity about the time of the offence, was not reported by any other person and, in broad terms, there were no other suspicious circumstances associated with him.

167 Finally, the person who was seen approximately three kilometres away was seen at a time vaguely approximate to that of the crime, in the sense that he could from that location have travelled to the crime scene in order to arrive there at or before the killing. He wore a bandanna and behaved in a somewhat unusual manner, but there was nothing to link him with the offence. He was never able to be identified.

168 In summary, this material was not fresh, since the defence was always aware that there were numerous persons of interest and could have asked for information about them at any time. It was not disclosed because it was considered to be irrelevant, and the evidence which is before us justifies that assessment.

The petitioner's mental state (Ground B(i))

169 One of the particulars of "fresh evidence" which is relied upon to establish that the petitioner's confessions were unreliable and should not have been admitted, or that a jury which had that evidence would be likely to have a reasonable doubt relating to them, is said to be the evidence of the psychiatric illness of the petitioner which is contained in affidavits of Dr Patchett.

170 On no conceivable view could this material be considered to be fresh evidence. Leaving aside the obvious difficulty of the proposition that the mental state of an accused person was something which was neither known to, nor ascertainable with reasonable diligence by, the accused and his advisors at trial, psychiatric evidence as to the mental state of the petitioner was adduced by defence counsel at trial, on a voir dire directed to the admissibility of the confessional material. That was the evidence of Dr O'Dea.

171 Although Dr Patchett gave evidence before us, it was conceded by counsel for the petitioner that there was no material difference between the views expressed by Dr O'Dea on the voir dire and the views expressed by Dr Patchett. The only difference appears to have been that Dr O'Dea described the petitioner's mental disorder as a "bipolar" one while Dr Patchett described it as "unipolar", but that is a difference which appears to be relevant only for the purpose of prognosis and treatment, and not to affect in any relevant sense the symptoms which one would have expected to exist or to be observable at the relevant time. Not only is the evidence of the petitioner's mental condition not fresh, but precisely that evidence was adduced before the learned trial Judge for precisely the purpose for which the petitioner now seeks to adduce the evidence of Dr Patchett; that is, to challenge the reliability of his confession.

172 Although there is no ground directed to failure or incompetence on the part of counsel, certain of the oral argument made in support of this particular on behalf of the petitioner tended to suggest that there had or might have been some failure by counsel, so that this Court ought to assess all of that evidence even if it was not fresh. It was submitted that there was no apparent forensic reason for failing to adduce the evidence of Dr O'Dea before the jury at trial.

173 Trial counsel gave evidence on the appeal before us, and was unable to recall specifically what process of reasoning led him not to call Dr O'Dea to give evidence before the jury. However, he did agree with a suggestion, put to him in cross-examination, that medical evidence showing an aberrant mental state was in his view capable of prejudicing the petitioner in the eyes of the jury.

174 It appears to us that there was an obvious forensic reason for the omission by trial counsel to call medical evidence to discuss in detail the mental state of the petitioner. First, it would have been plain to the jury that the petitioner was a very unusual person. In evidence, a variety of matters which set him apart from "normal" experience were mentioned. They included his living essentially on the streets and on his wits, his unusual dress and use of a staff, and his many untrue, grandiose and unlikely claims made to various people, such as working for Interpol, being involved in "busting" the Mafia, having deep interests in metaphysics and other somewhat esoteric subjects, speaking many languages and the like. Most importantly, there were frequent references in the evidence to his having been interviewed while residing at Graylands, which is notoriously a facility for those who are mentally ill. It might have been thought that there was ample material to support the submission that a person such as the petitioner might have had the otherwise very unlikely idea that he was in a position to "help" police by theorising with them about the murder.

175 On the other hand, although expert psychiatric evidence may have assisted the thrust of the submission outlined above, by confirming the petitioner's grandiose and unusual speech and thought patterns, there were apparent disadvantages associated with it. The evidence of Dr O'Dea at the voir dire described the petitioner at the relevant time as having been in a "manic" state. He was described as liable to become "up-tight and upset" and verbally threatening in situations of stress. He was described as having a "rich fantasy life" but as being able to determine whether his ideas were fact or fantasy. The last of those observations might well have supported an inference that in his confessions, and particularly in the videotaped confession, the petitioner was quite able to distinguish between being asked about his own movements and being asked about some hypothetical murderer. The discussion of his "manic" state could well have led to or strengthened a view that he was the type of person who might react disproportionately if, during the course of a robbery, Pamela Lawrence became upset and hysterical, as the police alleged that he had said she did.

176 As we have noted, an argument that criticised counsel's decision not to call psychiatric evidence was only raised obliquely in argument rather than directly by the grounds of appeal. Presumably that was because, as we have explained, such criticism is entirely lacking in substance.

The petitioner's myopia (Ground F, penultimate paragraph)

177 This is another matter which, although referred to in passing in the notice of appeal as "new" evidence, was sometimes, during the course of argument, put in terms which tended to suggest an allegation of incompetence or inexplicable omission by trial counsel. The issue can be disposed of very briefly.

178 Evidence was called at the hearing of this appeal to the effect that the petitioner had suffered for a considerable period of time from myopia; that is he was short-sighted. His evidence on the appeal was that he did not normally wear glasses unless watching television or driving. His evidence also was that sometime before the killing of Mrs Lawrence he had lost his glasses. There was evidence that he and members of his family had mentioned to trial counsel that he had poor eyesight and did not have his glasses at about the time of the offence.

179 There was also at the hearing of this appeal medical evidence about the degree of the petitioner's visual impairment at the relevant time, based upon records of corrective glasses which had been prescribed for him in the past, and records of tests of his eyesight in the past. There was some debate about the degree to which firm views could be expressed based upon that material, but it is not necessary for us to deal with that issue. The point of all the evidence was to support a submission that he would have been unable to tell whether Ms Barsden was a male or female and would have been unable to tell whether or not she was looking at him, if he had been in Flora Metallica at the relevant time. It then followed, it was submitted, that he could not have made to the police those statements which it was alleged that he had made about being seen by a girl in a car.

180 It is to be noted however that it was never suggested that the petitioner was in a position to describe Ms Barsden with any precision or that when he had "locked eyes" with her he had been able to distinguish her features well enough to be able, for example to describe the colour of her eyes or to identify her if he saw her again. All that was suggested was that he had noticed that a girl was looking or appeared to be looking at him.

181 The medical evidence was that persons with poor eyesight improve their vision by squinting, and do so unconsciously when they need to focus on something properly. The petitioner's own evidence was that he had not worn glasses for a month or more before the offence but that during that period of time he competently drove a car. Also during that period, his evidence was that while standing on the opposite side of the road to Flora Metallica (that is, much further away from the shop than Ms Barsden is alleged to have been) he looked into the shop and was able to identify a person inside as being a policeman, wearing a light blue, short-sleeved, collared shirt, having short blonde hair and carrying a black handled torch. His evidence at the trial included evidence that in the week prior to the offence he was walking past Flora Metallica and, happening to "glance" into it, noticed that there was a gold gum leaf in the window. There is nothing in any of that material which appears to us to be capable of casting doubt on the proposition that at the relevant time the petitioner would have been able to notice that there was a girl in a car and that she appeared to be looking at him.

Patterns of bloodstaining (Ground B(iv))

182 We do not propose to go in detail through all of the material which relates to this portion of the grounds of appeal. It is alleged that there is fresh evidence that the petitioner's description of Mrs Lawrence being hit at the front of the shop and then dragged to the back is inconsistent with the distribution and patterns of bloodstaining as depicted in the photographs of the crime scene. That raises two issues; the first is whether the evidence is fresh, and the second is whether the alleged inconsistency exists.

183 The allegedly fresh evidence is that of Mr Hall, forensic scientist at the Victoria Forensic Science Centre, and an expert in bloodstain pattern analysis. Mr Hall's evidence was not given at trial. However, Mr Hall's evidence was that the service of experts in bloodstain interpretation was available for some time in Australia prior to 1994. Indeed, some evidence as to bloodstain interpretation was given by Mr Bagdonavicius at trial.

184 It is submitted however that Mr Hall's evidence is fresh because it has been obtained as the result of discovery of photographs of the crime scene which the prosecution failed to disclose to the petitioner or his counsel prior to or during the trial. The evidence before us was that all but two of the nine photographs relied upon by Mr Hall were in a booklet of photographs, copies of which were made available to the trial Judge, members of the jury and to defence counsel. As is not unusual, the quality of the copies is not as good as the quality of the originals. There is however no suggestion that, had an analysis had been thought desirable by the defence, the originals would not have been available for view. As to the other two photographs, Mr Hall gave evidence that his interpretation of an area shown on one of them could be made by a reference to one which had been disclosed, and that the other was not essential to his conclusions. In effect, he agreed that his conclusions could have been drawn from the photographs which were provided to the defence. This is not surprising, since the two which were not provided are clearly photographs taken from somewhat closer and perhaps from a slightly different angle, but which reveal the same areas as areas appearing in the other photographs. We would not therefore regard Mr Hall's evidence as fresh evidence.

185 So far as the substance of Mr Hall's evidence was concerned, there were a variety of minor observations, but the principal question at issue was whether the bloodstain patterns were consistent or inconsistent with the account given by the petitioner to police of hitting Mrs Lawrence at the front of the shop and then dragging her to the rear. The view which was advanced in reliance on Mr Hall's evidence, was that the petitioner's account would have resulted in only two significant areas of pooling of blood, whilst a third area could be seen in the photographs.

186 During the course of his evidence before us, it appeared that Mr Hall's opinion was based in part on the photographs and also in part upon the evidence at trial of an ambulance officer, Mr Rigby. That evidence was to the effect that he had (together with police officers and another man, who appears to have been Mr Lawrence), assisted in moving Mrs Lawrence from her position near the back door to another area, and that "before that" he did some tests and bandaged her head because it had been bleeding. At that point he agreed that the bandages and the tests were done where Mrs Lawrence was originally positioned. On its face, that evidence suggests that although Mrs Lawrence was moved from her position near the back door, there would have been no reason to expect any further significant bleeding in the new position to which she was moved.

187 However, Mr Rigby gave further evidence at trial, when asked what he did when he got the woman out to the other area, that "that was where I bandaged her skull tightly ... ". The sequence then seems to be that Mrs Lawrence's head was bandaged at first where she lay, but that it was rebandaged at another position in the shop. That view is supported by the evidence given at trial by then First Class Constable Staples, who said that when he arrived one of the constables assisted Mr Lawrence in holding a "cloth" to Mrs Lawrence's head, that the constables then assisted the ambulance officers to move Mrs Lawrence into what he described as "an open area" so that there was room to treat her properly, and that it was there that the St John's Ambulance officer placed a broad bandage on Mrs Lawrence's head. That evidence was confirmed at trial, albeit in response to questions of a somewhat leading nature, by the other constable attending.

188 Mr Hall's evidence before us was that if there had been an initial temporary bandage, he would expect that there would be more blood found in the new position to which Mrs Lawrence was moved. It seems to us therefore that the argument which the petitioner seeks to make in reliance upon the evidence of Mr Hall cannot be sustained, since it is predicated upon an assumption inconsistent with the unchallenged evidence at trial.

The photograph(s)

189 Although it never formed part of the grounds of appeal, some stress was placed during the hearing of the appeal on the possibility that the petitioner was shown a photograph or photographs of the deceased, which would explain, it was submitted, why he had been able to describe the injuries inflicted on her head with what Dr Cooke considered to be reasonable accuracy. Because there was considerable discussion of the issue, we think it desirable to mention it briefly. During the course of the videotape record of interview, when asked about the attack on the deceased, the petitioner at one point began his answer with the words "Well judging by the ... photographs ... ". That comment was not followed up during the course of the police interviews with the petitioner. At trial and before us, his evidence was that he was shown, not a number of photographs, but one particular photograph, showing the deceased lying face down. At trial his evidence was that she appeared to be lying on a wooden background that seemed to be floorboards. The police denied ever showing a photograph of the deceased to the petitioner during the course of the interviews.

190 It is sufficient, we consider, to deal with this issue, to note that the question of whether the petitioner had been shown a photograph or photographs, was always a live issue before the jury at trial. It must have been plain to the jury that photographs of the deceased had been taken for the purposes of the investigation. The question whether the petitioner might have been able from a single photograph to deduce the three areas of principal injury to the deceased's head, as well as the contest of credibility as to whether any photographs were shown, was a matter properly open at trial. No further light has been shed on it, in our view, by any of the material adduced in evidence at this appeal, including the sketch produced by the petitioner for defence counsel at trial, but not used, which he said was a sketch of the photograph he had been shown.

Peter Lawrence (Ground E)

191 The way in which the petitioner's case concerning Peter Lawrence evolved during the course of this appeal is a matter which ultimately causes us some concern. No reference to Mr Lawrence appears in the petition or in the notice of appeal dated 26 July 2002. The proposed notice of appeal dated 12 February 2003 contains a reference to persons alleged to be "additional suspects". Particulars of additional suspects in the petitioner's response to the respondent's request for further and better particulars, filed 6 March 2003, lists Mr Lawrence amongst 13 alleged additional suspects. At some stage many of those were discarded so that only Mr Lawrence and the other persons of interest we have described, fall to be dealt with.

192 Oddly, although he had been named amongst many others as a "possible suspect" in March 2003, Mr Lawrence's name appeared on a list of proposed witnesses in this appeal prepared on behalf of the petitioner, and his name continued to appear on amended versions of that list for a number of days after the commencement of this appeal. The opening submissions by counsel for the petitioner did not suggest what evidence he might be called to give, and in the end his name simply disappeared from the witness list. During the hearing of the appeal, on 11 August 2003, very detailed proposed particulars of this ground were provided. Some of them referred to the additional "suspects" dealt with earlier in these reasons, but the majority contained very detailed allegations concerning Mr Lawrence.

193 We should make it very plain that we do not criticise those acting for the petitioner for making such allegations against Mr Lawrence. It is always open to a person accused of a crime to attempt to prove that the offence was committed by another. The process no doubt may be distressing for the other person, and carries an element of unfairness in the sense that he or she is accused in a public forum without actually being a party and being in a position to offer a defence. However, that right of an accused person is a necessary consequence of the need to ensure that he or she is able to make the fullest possible defence. Further, we do not criticise the bringing forward of those particulars at a late stage during the course of the appeal, notwithstanding that, for reasons which we shortly explain, they ultimately were demonstrated to be lacking in substance. There was a great deal of material provided to those acting for the petitioner, and some of it was apparently provided later than it should have been, so that it was necessary for the petitioner's solicitors and counsel to sift and digest quite large quantities of material in a relatively short space of time. It is not surprising that in those circumstances material was put forward which, had there been time for better investigation and reflection, might not have formed part of the case.

194 However, it is the way in which that material was treated after the evidence had been heard which is of concern to us. The evidence referred to in the particulars concerning Peter Lawrence fell into three broad categories.

195 The first category of material was not fresh or new evidence at all, but consisted of material which was always known prior to and at trial. Most of the "evidence" falling into that category in the particulars is not even evidence, but simply argument and argument, in our view, which cannot be supported. For example, it is suggested that the description given by Ms Barsden of the person she saw inside the shop fits the description of Peter Lawrence. Peter Lawrence gave evidence at trial, so that if this issue had been considered to be of any relevance it would have been something the jury would have been well able to assess. Having had tendered to us a photograph depicting him at the date of trial, we note that he did not have a "long" face, does not have a strawberry blonde beard, that he had at that date a neat full, beard, rather than a light one, and was clearly older than 30 – 35 years of age.

196 We do not propose to go through in detail the material which was available at trial. It is sufficient to note that, at trial, no suggestion was made by the petitioner's counsel that Mr Lawrence might have killed his wife. This was presumably due to a combination of the fact that none of the material then available could possibly support such an inference, together with the very powerful evidence against such an inference, which demonstrated that Mr Lawrence had called an ambulance for his wife while she was still alive and at a time when there then still remained a possibility that she would survive at least for a sufficient time to be able to identify her assailant.

197 The second category of material contained in these particulars is fresh or new, but does not appear to us to be capable of implicating Peter Lawrence rather than some other person, even if it were accepted at face value. That material consists largely of one or two very weak indications that there may have been some limited attempt to "clean up" the crime scene. For example, it is alleged in the particulars that there is fresh evidence from Mr Bagdonavicius that blood splashes on the side of a fridge adjacent to the sink had been diluted or splashed with water. Before us, Mr Bagdonavicius said he was unable to say whether the apparent dilution could have been water or cerebro spinal fluid. Even if it had been water, which is a finding which does not commend itself to us on the evidence, it is not clear to us why that should lead to a conclusion that it was Mr Lawrence, rather than some other person, who had been splashing water.

198 Finally, the material in the particulars which did appear to be fresh or new and did appear to support an inference that may have implicated Mr Lawrence, was demonstrated during the course of the evidence before us to be quite incapable of bearing the construction placed upon it by counsel for the petitioner. The most striking evidence falling into this category is that contained in particular E(iii) which commences: "Fresh evidence will be given by Bagdonavicius, that gives rise to the inference that there had been an attempt to wash out blood stains on the bottom of the business shirt worn by Peter Lawrence ... ". To explain the background to this particular, it should be understood that, in attempting to assist his wife at Flora Metallica, Peter Lawrence got blood on various items of his clothing. She was bleeding profusely and there was considerable blood at the scene. As a routine procedure during the course of the investigation, police seized the clothing Mr Lawrence had worn at the time. Mr Bagdonavicius inspected that clothing and prepared a report.

199 In his report, on a sketch of Mr Lawrence's shirt, Mr Bagdonavicius wrote the words: "Washed out?". His evidence before us was that when he wrote those words he was referring to the strength of the colour of the particular stains, rather than suggesting any conclusion about the way in which the shirt might have been treated. Further, he gave evidence that, although any opinion as to how those bloodstains got onto the shirt is speculation, it was his view that there was a "strong possibility" that transference of blood from another item of clothing produced those bloodstains. He gave evidence that there was some evidence of blood transference within the shirt itself and that other light bloodstains on various other items of clothing stored in the same bag were consistent with transference from other items of clothing. The mechanism for the transference apparently would occur, if the shirt and other bloodstained clothing was stored together in a bag. The evidence of the police was that at the time at which they seized the clothes that Mr Lawrence had been wearing at the relevant time, they found them stored all together in a rubbish bag. The position then, after all the evidence had been given, was that there was no evidence to suggest any attempt at laundering the clothing, and that there was evidence pointing to the mechanism of transference as the way in which those particular stains had arisen.

200 It is unfortunate that, in the face of evidence of the type which we have described, and after the opportunity for reflection, the petitioner's counsel nevertheless persisted in relying upon the submission that Mr Lawrence was an alternative "suspect". He did not refer to that portion of the notice of appeal at all during the course of his closing. Nor did he refer to it during the course of his final submissions in reply. However, when the respondent's counsel, during the course of his closing submission, suggested that it would be appropriate for the court to treat those particulars as having been abandoned, those acting for the petitioner passed him a note, the gist of which was communicated to us, to the effect that those particulars were still relied on. It is our view that counsels' ability to raise grave allegations concerning third parties, if it appears to be in the interests of his client to do so, carries with it a corresponding responsibility. In our view, once it became apparent that there was no evidence capable of belief which was capable of supporting the particular relied upon, it would have been appropriate that reliance upon that particular should be abandoned.

Polygraph evidence (Ground D)

201 Sometime prior to trial the petitioner wrote to Mr Hogan asking him to arrange for the petitioner to undergo specialist's tests and examinations including speech, language and eye tests. He wrote that he was not able to give a detailed account of his movements from the time he arrived at Bel Air Apartments in the taxi and that he wished to make a statement about it. He then added:

"I then wanted to confirm that statement using HYPNOSIS and TRUTH SERUM plus a lie detector. Even if the truth serum and lie detector is not allowed in court. I still want it done! At least I can tell the court that I have subjected myself to these to prove that 'I am innocent'."

202 No such tests were arranged and no attempt was made to lead such evidence at trial.

203 In early March 2001, Ms Colleen Egan, a reporter with "The Australian" newspaper contacted Mr William Glare on behalf of the petitioner. We were informed that Mr Glare and Mr Van Aperen are the only two polygraph examiners in Australia.

204 Ms Egan supplied Mr Glare with a brief of the petitioner's trial, which he read. On 13 March 2001 he conducted a polygraph examination of the petitioner at Casuarina Prison. He subsequently produced an affidavit sworn 17 December 2002 to be used in this appeal. However, prior to the hearing he unfortunately suffered a serious illness which incapacitated him and he was unable to testify.

205 On 3 July 2003 at the instigation of those advising or assisting the petitioner, Mr Steven Van Aperen conducted a polygraph examination of the petitioner at Casuarina Prison, details of which are contained in his affidavit sworn 17 July 2003.

206 Mr Van Aperen is a certified forensic polygraph examiner. He conducts his own business.

207 Earlier he had been a police officer in the South Australian police force from March 1984 and joined the Victorian Police Force as a uniformed officer in 1988 rising to the rank of senior detective in 1994.

208 He holds a Bachelors Degree in Criminal Justice Administration (Royal Melbourne Institute of Technology University, 1995) and a Diploma in Security Management (1997).

209 In 1996 he attended Western Oregon State University in the United States of America to train in the science of forensic psychophysiology under Dr Stan Abrams PhD, a clinical psychologist. He graduated from that course on 26 July 1996. His training reached the standards for forensic polygraph examiners set by the American Polygraph Association.

210 In August 1996 he received certification by Axciton Systems, manufacturers of computerised polygraph instrumentation, in Houston, Texas. This certification related to training on the calibration and operation of computerised polygraph instrumentation when conducting polygraph testing.

211 He is a member of the American Polygraph Association and of the American Association of Police Polygraphists. He has attended several conferences on the polygraph and psychophysiological detection of deception and was engaged in other related activities.

212 Mr Van Aperen has conducted numerous presentations on polygraphy to various police departments and other organisations in Australia.

213 Since 1996 he has conducted 338 polygraph tests in cases including homicide, rape, sexual assault, theft, fraud and other matters.

214 Mr Van Aperen described polygraph techniques as being derived directly from "basic scientific principles and research in psychology and human psychophysiology". He asserts that physiological measurement techniques for the detection of deception have been developed and subjected to scientific evaluation for almost 100 years. He asserts that "it is well established" that certain stimuli produce voluntary changes to a person's physiology that are controlled by the autonomic (sympathetic and para-sympathetic) nervous system and that one such stimulus occurs when a person is lying.

215 As Mr Van Aperen explained it, when a person is lying, changes in that person's physiology, controlled by the autonomic nervous system, include increased skin conductivity (palmar sweating), increased blood pressure and decreased respiratory activity. These changes are measured with polygraphic instruments. He stated that modern polygraph techniques initially grew out of law enforcement application.

216 According to him, the most commonly employed testing format is the comparison question test, or control question technique ("CQT"). In the CQT there are three categories of questions. The first category comprises those which relate to the particular matter under investigation (eg did you steal that $500 cheque?). These are referred to as relevant questions. The next category is control or comparison questions. They are asked within the same format of the test and are deliberately designed to produce a "lying" response (such as "have your ever deliberately harmed anyone?"). The purpose of the control or comparison question is to provide a meaningful way to compare and interpret the relative strength of physiological reactivity to the relevant questions. The remaining category of questions is those which are designed simply to "fill out" the test.

217 Interpretation of the test outcome is made by systematically comparing the strength of reactions to the relevant questions against the comparison or control questions. Negative scores (indicative of deception) are assigned when reactions to relevant questions are stronger than reactions to control or comparison questions. Positive scores are assigned when the reactions to control or comparison questions are stronger than reactions to relevant questions. The scores are subsequently tallied for the entire test. All relevant questions combined, a total numerical score of minus six (or a greater negative number) indicates overall deception to the relevant questions. A total of plus six or greater indicates overall truthfulness to the relevant questions. A total score between minus six and plus six is deemed to be inconclusive.

218 In his affidavit and evidence Mr Van Aperen also described his understanding of the Guilty Knowledge Test ("GKT"). This is administered in two forms – the Known Peak of Tension test and the Searching Peak of Tension ("SPOT") test.

219 A Known Peak of Tension test is used to determine if the examinee has knowledge of a particular case fact in respect of a crime that is known only to the perpetrator and the police.

220 A SPOT test is used to determine a case fact known only to the perpetrator of the offence.

221 The assumption underlying both of these is that only the perpetrator would have knowledge of the particular facts surrounding the crime (and will produce an autonomous reaction when asked about such facts).

222 A polygraph examination procedure begins with a "carefully structured" interview (the pre-test interview) in which the issues to be tested are discussed in detail with the examinee. According to Mr Van Aperen, the intent is that during the pre-test interview, questions concerning the issues under investigation are constructed between the examiner and the examinee so that they are clear, succinct and clear of ambiguity. The examinee is instructed to answer all questions with a simple yes or no. During each testing phase recordings are made of the examinee's physiological responses to each of the questions. The entire set of questions is asked at least three times.

223 In the petitioner's case Mr Van Aperen conducted an extensive pre-test interview. In the course of that he informed the petitioner that no matter what the results of the examination were, they would be provided to the Office of the DPP. The petitioner agreed to that.

224 Mr Van Aperen utilised an Axciton computerised polygraph for the testing. That recorded on a moving chart, relative changes of blood pressure, rate and strength of pulse beat, electro-dermal response and thoracic and abdominal respiratory patterns.

225 Mr Van Aperen conducted first what he described as a GKT or SPOT test to determine whether the petitioner had knowledge of what type of instrument was used in the murder. That test was conducted in the following way:

"X This part of the test is about to begin. Please remain still

R1 Do you know for certain if Pamela Lawrence was struck with a spade?

R1 Response: No

R2 Do you know for certain if Pamela Lawrence was struck with a hammer?

R2 Response: No

R3 Do you know for certain if Pamela Lawrence was struck with a baseball bat?

R3 Response: No

R4 Do you know for certain if Pamela Lawrence was struck with a spanner?

R4 Response: No

R5 Do you know for certain if Pamela Lawrence was struck with a wrench?

R5 Response: No

R6 Do you know for certain if Pamela Lawrence was struck with an anode?

R6 Response: No

R7 Do you know for certain if Pamela Lawrence was struck with an iron bar?

R7 Response: No

XX This is the end of the test please remain still."

226 Mr Van Aperen's examination of the three charts produced in response to these questions showed no strong autonomic reactions (sympathetic) to any of the implements "which was alleged to have been the murder weapon". It was his evidence that if one of the implements had been used to strike Pamela Lawrence the offender would have had a strong autonomic reaction to that implement.

227 Mr Van Aperen analysed the chart using the Polyscore scoring algorithmic software developed by the John Hopkins University Applied Physics Laboratory USA, which he said "... is designed to evaluate polygraph recordings to render an independent opinion from the examiner regarding the probability of truthfulness or deception".

228 The Polyscore chart analysis of the Series 1 GKT showed the petitioner's reaction to each of the questions was negligible. The strongest reaction in the first test of the series was to question R1 ("spade"). The strongest reaction in the second test was to question R5 ("wrench"). The strongest reaction in the third test was to question R3 ("baseball bat"). Mr Van Aperen said that even if any of those reactions had been significant (which he said they were not) the different reaction in each test is "strong evidence" that if any of those items was the murder weapon then the petitioner did not know that.

229 As it was put in the petitioner's submissions, Mr Van Aperen's conclusion was that if one of the items in the GKT was the murder weapon, then the petitioner is not the murderer.

230 The second series of tests were CQT tests.

231 The following extract from the transcript of the polygraph tests gives an indication of the process by which the control questions are formulated between the examiner and the examinee (TS 3 July 2003 pages 43-49):

"TESTER: Okay. Now, um, with this next test I'm going to do, um, this is what we call a single issue zone of comparison test. Okay? Now, obviously what I need to do is ask you direct questions in relation to the issue like I did just previously. So what I'd like to do is review through the questions with you, um, that are going to be on the test.

MR MALLARD: Okay.

TESTER: Okay. So, um, firstly, one of the questions that I'm going to ask you is regarding whether or not you struck Pamela Lawrence on the head on the 23rd of May 1994, do you intend to answer truthfully each question about that?

MR MALLARD: Yes I do.

TESTER: And I just need - - in the test, I just need you to say yes. Okay. No problems.

MR MALLARD: Ha ha.

TESTER: That's okay. Nothing to worry about - -

MR MALLARD: It's just ... (indistinct)...pedantic

TESTER: The other questions that are going to be on the test (sic are) is, um, did you strike Pamela Lawrence on the head on the 23rd of May 1994?

MR MALLARD: No.

TESTER: The other question. On the 23rd of May 1994 whilst inside a shop called Flora Metallica, did you strike Pamela Lawrence on the head?

MR MALLARD: No. I did not enter Flora Metallica.

TESTER: Okay. That's fine. That's fine, but that question relates to whether or not you, I guess, were inside the shop and struck her at that time.

MR MALLARD: No.

TESTER: No. Okay. Um. Now, my job today is to find out whether or not you were involved in this and what I need to do in order to do this, I want to find out exactly a little bit more about the type of person you are. There's - - I guess what I want to be able to show is that you're not the sort of person that would do something like this but also - -
MR MALLARD: Absolutely.

TESTER: - - that you're not the sort of person that would lie about doing something like this if you've already done it. Okay. So what I need to do is ask you questions about the type of person you are, your personality and so on.

MR MALLARD: Yes.
TESTER: Now, ah, the next, ah, three questions I'm going to ask you are very important because, ah, they're specific issues I need you to be, you know, upfront with me in relation to these issues. Okay.

MR MALLARD: Absolutely.

TESTER: Um. So what I'd like to ask you. These questions are going to relate to before, ah, the death of Pamela Lawrence, so before this incident. Okay.

MR MALLARD: Mm Hm.

TESTER: So I don't want to have any cross-over into that period of time. So just bear with me for a second. Now, what I'm going to do I'm just going to write them up so just bear with me.

MR MALLARD: Okay.

TESTER: I won't be long - - -

TESTER: - - - won't be long.

MR MALLARD: Okay.

TESTER: Okay. On a scale of 1 to 10, how truthful would you rate yourself, 1 being not very truthful, 10 being 100 per cent truthful? What would you give yourself as a self-assessment?

MR MALLARD: Ten.

TESTER: Ten. Okay. Are you the sort of person that would deliberately hurt - - physically hurt people or -

MR MALLARD: No.

TESTER: - - intentionally hurt people?

MR MALLARD: No.
TESTER: Okay. Um. What I am going to do now is I'm just going to run through some questions. Now, these relate to before this incident. Okay. So, um, forget about the incident, I'm going to talk about before that, and there's going to be - - the questions are going to be quite self-explanatory. Um. Firstly, let me ask you. Are you the sort of person that would deliberately hurt someone?

MR MALLARD: no.

TESTER: Okay. If I was to say to you between the ages of 15 and 30, so between the ages of 15 and 30 did you ever deliberately hurt someone physically?

MR MALLARD: No.

TESTER: So there was never ever any stage that through growing up or, um school or anything you deliberately went out to hurt someone?

MR MALLARD: No.

TESTER: Okay.

MR MALLARD: In fact I was bullied at school.

TESTER: Okay. Um. Was - -

MR MALLARD: Was there a victim as I am now.

TESTER: Okay. Was there any time that - - do you have any brothers or sisters or anything - -

MR MALLARD: I have a sister.

TESTER: Okay. Was there a time where you ever physically, um, struck her or anything like that?

MR MALLARD: No, none at all.

TESTER: Okay. Um. Next question. During the first 30 years of your life, did you ever cause physical harm to someone?

MR MALLARD: No.

TESTER: Do you know - - do you understand what I meant by that question?

MR MALLARD: Yes.

TESTER: Can you explain it to me?

MR MALLARD: Any form of physical harm, a slap or a kick or a punch or anything like - - anything to that effect.

TESTER: No problem.

MR MALLARD: I've just thought of an incident at school when I was young, early age, where in retaliation of being beaten, I punched the guy in the stomach - -

TESTER: Mm hm.

MR MALLARD: - - but that was it.

TESTER: Okay. Well - - okay. No problem.

MR MALLARD: Trying to be honest.

TESTER: Yeah, no, I appreciate that. Um. So was it just that one time?

MR MALLARD: Yes. Yes.

TESTER: Okay.

MR MALLARD: That was early in my school - -

TESTER: Sure. No, that's fine.

MR MALLARD: - - that - - that was second year of high school, I think.

TESTER: Sure. Okay. In that case, I'll put - - I'll actually ask you this. Other than what you've told me, so it excludes that one time - - so other than the one you told me. Between the ages of 15 and 30, did you ever deliberately hurt someone physically?

MR MALLARD: No. No.

TESTER: And other than what you've told me, during the first 30 years of your life, did you ever cause physical harm to someone?

MR MALLARD: No.

TESTER: Okay. The other question I've got for you is are you the sort of person that would lie to someone in authority?

MR MALLARD: No. Definitely not.

TESTER: Okay.

MR MALLARD: Absolutely not.

TESTER: Okay. Good. In that case, I might ask you this question. Before 1992, did you ever lie to someone in authority?

MR MALLARD: No.

TESTER: Okay. All right. So that could be teachers, that could be parents, could be anything along those – nothing major perhaps?

MR MALLARD: Nothing. No, nothing to the way you're putting it. I know what you mean. I have, um, exaggerated and, um - -

TESTER: Nothing - -

MR MALLARD: - - nothing of a serious deception, no.

TESTER: . . . (indistinct) . . . be able to show that you're not the sort of person that would - -

MR MALLARD: Yeah, no.

TESTER: Yeah.

MR MALLARD: No. I can truthfully say no.

TESTER: Okay. All right. Um. One of the other questions I'm going to ask you is, is your first name Andrew?

MR MALLARD: Yes. My first names are Andrew Mark.

TESTER: Okay.

MR MALLARD: I actually like my full names being used.

TESTER: Okay. Actually, better still, I'll change that. I'll actually ask: are you currently sitting down? Make that easier.

MR MALLARD: Okay. Ha ha. Unfortunately I tend to be very pedantic and - -

TESTER: That's all right. Okay. Um. Now - - okay. The questions that I have reviewed with you, and we'll go through them again a bit later - -

MR MALLARD: Mm hm.

TESTER: - - are the - - are the questions that I'm going to ask you in this series of testing. Um. I'm not going to ask you any other questions about any other issue in this text. Okay.

MR MALLARD: Okay.

TESTER: I want you to know that. Um. Now, in order for me to assure you that - - and convince you that I'm not going to do that, I'm going to ask you these questions in the test. Are you completely convinced that I will not ask you an unreviewed question during this test - -

MR MALLARD: Yes, I trust you.

TESTER: - - because I'm not going to, but I just want to make sure that your mind is here, not elsewhere. That's why we ask that question.

MR MALLARD: I trust you, Steven.

TESTER: Okay.

MR MALLARD: I trust you.

TESTER: And the other question is - - I'm going to ask is, is there something else you're afraid I will ask you a question about even though I told you I would not, because I'm not going to, but I just want to make sure that you know that I'm not going to. So the question is: is there something else you're afraid I will ask you a question about even though I told you I would not?

MR MALLARD: No, and even if you were, I would be fine with that - -"

232 Following this, Mr Van Aperen rehearsed the test with the petitioner before reattaching the petitioner to the polygraph machine and then conducted the test as follows:

"TESTER: Yeah, that's good. Now, just before we start. Once again, I need you to sit perfectly still during the test; no finger movements or facial movements or feet movements or anything like that. Just simply answer the questions yes or no. Um. And also, obviously it's a very sensitive instrument so I want you to be sure that you understand how important it is for you to be completely truthful to every question. Okay. Just for your protection. You've told me the complete and absolute truth to each of the questions I've previously reviewed with you?

MR MALLARD: Yes.

TESTER: Okay. This part of the test is about to begin. Please remain still. Are you currently sitting down?

MR MALLARD: Yes.

TESTER: Regarding whether or not you struck Pamela Lawrence on the head on the 23rd of May 1994, do you intend to answer truthfully - -

TESTER: - - - intend to answer truthfully each question about that?

MR MALLARD: Yes.

TESTER: Are you completely convinced that I will not ask you an unreviewed question during this test?

MR MALLARD: Yes.

TESTER: Other than what you've told me, between the ages of 15 and 30 did you ever deliberately hurt someone physically?

MR MALLARD: No.

TESTER: Did you strike Pamela Lawrence on the head on the 23rd of May 1994?

MR MALLARD: No.

TESTER: Other than what you told me, during the first 30 years of your life did you ever cause physical harm to someone?

MR MALLARD: No.

TESTER: On the 23rd of May 1994, while inside a shop called Flora Metallica, did you strike Pamela Lawrence on the head?

MR MALLARD: No.

TESTER: Other than what you told me, before 1992 did you ever lie to someone in authority?

MR MALLARD: No.

TESTER: Is there something else you're afraid I will ask you a question about, even though I told you I would not?

MR MALLARD: No.

TESTER: Okay. This is the end of the test."

233 According to Mr Van Aperen's analysis of the three charts the petitioner's polygram showed no strong or consistent unresolved responses to the relevant questions. The results indicated a total overall score of plus six. It was his opinion that the petitioner was truthful in his responses that he did not strike Pamela Lawrence on the head. He said that on the basis of scientific research by Ansley the confidence in the truthful outcome is approximately 96 per cent. The polyscore chart analysis of the series 2 CQT test returned a result "strongly no deception indicated, probability of deception is less than .01%".

234 The final portion of the polygraph examination was directed to ascertaining whether the petitioner was being truthful in his responses that he had never told the police that it was him rather than someone else who struck Pamela Lawrence.

235 Once again Mr Van Aperen conducted a pre-test interview in which he discussed the questions he was going to ask.

236 The first question was whether the petitioner was the sort of person who would deliberately lie to people. The petitioner immediately answered no, not deliberately. He gave a similar answer to the question whether he was the sort of person who would lie to protect himself. There was then a discussion, (which proceeded quite slowly) with the petitioner adding comments after long pauses (the process is quite apparent on the video). He began by saying that he had never told a serious lie nor a lie to protect himself. A little later he admitted that he did lie to Michelle Englehardt by telling her he was an Interpol agent. He explained however that this was a self-esteem issue – he did not want her to know who he was and that he was "on the street". He said that it was not to hurt or deliberately deceive her, merely to impress her. After some further exchanges he said that he had lied in the past but only ever to exaggerate his own importance and to impress people, but never on a serious issue to hurt or deceive. He said when confronted by serious issues and/or authority he would not lie. Again, he described himself as, exaggerating, mostly. A little later he said that he had told "small lies" to people to convince them to buy something from him, or that he would be able to pay them back money when he was trying to get marijuana on account. He said if the question was put in terms of "serious lies" he would understand that.

237 Mr Van Aperen then went through the questions that would be asked and again after that the petitioner seemed to show some concern to clarify just what was meant by the question going to whether or not he had previously lied. In the course of that further discussion he mentioned that it was also on his mind that he had pretended to be a police officer so a person would let him into a place. He did not elaborate on that further, saying that it was very complicated.

238 The third series of tests were then conducted. The first of those was:

"... Okay. This part of the test is about to begin. Please remain perfectly still. Is your first name Andrew?

MR MALLARD: Yes.

TESTER: Regarding whether or not you've ever told police that it was you rather than someone else that struck Pamela Lawrence, do you intend to answer truthfully each question about that?

MR MALLARD: Yes.

TESTER: Are you - - excuse me. Are you completely convinced that I will not ask you an unreviewed question during this test?

MR MALLARD: Yes.

TESTER: Other than what you told me, between the ages of 15 and 30 did you ever tell a serious lie to a personal friend or relative?

MR MALLARD: No.

TESTER: Have you ever told the police that it was you rather than someone else that struck Pamela Lawrence?

MR MALLARD: No.

TESTER: Other than what you told me, during the first 30 years of your life did you tell a serious lie to someone who really trusted you?

MR MALLARD: No.

TESTER: Regarding Pamela Lawrence have you ever said to the police that it was you rather than someone else who struck her?

MR MALLARD: No.

TESTER: Other than what you told me, before 1992, did you ever tell a serious lie to protect yourself?

MR MALLARD: No.

TESTER: Is there someone else – something else you are afraid I will ask you a question about even though I told you I would not?

MR MALLARD: No.

TESTER: This is the end of the test."

239 Mr Van Aperen's hand-scoring analysis of the three charts showed no strong nor consistent unresolved responses to the relevant questions. There was a total overall score of plus nine. He concluded that the petitioner was truthful in his responses that he had never told the police that it was him rather than someone else who struck Pamela Lawrence. The Polyscore chart analysis returned the same result as that for the Series 2 CQT tests.

240 The respective positions of the parties on the issue of the polygraph were advanced through the evidence of Mr Van Aperen and by Professor Charles Honts who were called by the petitioner and Professor William Iacono, Professor John Furedy and Dr Drew Richardson, who were called by the respondent.

241 The submissions on behalf of the petitioner may briefly be summarised in the following way.

242 The test for the admissibility of expert opinion evidence should be taken as that articulated in Osland v The Queen [1998] HCA 75(1998) 197 CLR 316 at 336 in which Gaudron and Gummow JJ said that:

"Expert evidence is admissible with respect to a relevant matter about which ordinary persons are '[not] able to form a sound judgment ... without the assistance of [those] possessing special knowledge or experience in the area and which is the subject of a body of knowledge or experience which is sufficiently organised or recognised as a reliable body of knowledge or experience'."

243 It was submitted that ordinary persons cannot form a sound judgment about whether or not a witness is telling the truth and that accordingly polygraph evidence would enable a jury to form a sound judgment about that – the only question then being whether the requirement of "reliability" is satisfied. This was said to have been recognised by Kirby J in State Rail Authority of New South Wales v Earthline Construction Pty Ltd (in liq) [1999] HCA 3(1999) 160 ALR 588 at 618 where at [88] Kirby J approved as "entirely accurate" Lord Devlin's comments that:

"I doubt my own ability ... to discern from a witness' demeanour, or the tone of his voice, whether he is telling the truth."

244 His Honour said that in the future, technology might be developed which would assist courts in determining issues of witness' credibility. Referring to polygraphs, Kirby J noted that polygraphs are already in use in some jurisdictions in the United States although in Australia they have not been treated as sufficiently reliable for judicial use.

245 It was submitted that although a majority of the Supreme Court of Canada in R v Beland and Phillips [1987] INSC 58[1987] 2 SCR 398, rejected evidence of polygraph examinations for reasons going to whether ordinary persons are capable of forming a sound judgment about the issues to which the examinations would relate, expressed as concern that the polygraph relates only to credibility, the approach of the minority in that case should be preferred. It is not a matter of credibility but one which goes directly to a fact in issue, namely the state of the petitioner's knowledge of the alleged murder weapon.

246 Counsel for the petitioner submitted that over the last 20 years a "vast literature" has developed in relation to the validity of polygraph examinations and that the polygraph is now generally accepted in the relevant scientific community as a valid test, which produces reliable results, or at least, (as it was put), results significantly better than chance.

247 The respondent contends the evidence is simply inadmissible. It was argued that the statements made by the petitioner to Mr Van Aperen on 3 July 2003 are self-serving hearsay, made nine years after the relevant events took place.

248 It is contended that the opinion expressed by Mr Van Aperen as to the truthfulness of the petitioner's answers is an inadmissible opinion because the basis upon which he purports to state it is not a proper subject for expert opinion. There is nothing in the material which establishes polygraphy as the subject of a reliable body of knowledge or experience. Furthermore, credibility is a subject within the experience of, and uniquely the province of, a jury.

249 Further grounds of objection are that Mr Van Aperen is not an expert in the scientific field upon which polygraphy purports to be based and several of the conclusions he asserts about the accuracy of the results of polygraph examinations are unsupportable even according to the evidence of Professor Honts.

250 Finally, it is submitted that the evidence Mr Van Aperen seeks to give is intended to do no more than bolster the credibility of the petitioner and is therefore strictly inadmissible in any event.

251 In Australia, the starting point for the admissibility of expert evidence is usually taken to be the judgment of Dixon CJ in Clark v Ryan [1960] HCA 42(1960) 103 CLR 486 at 491:

"The rule of evidence relating to the admissibility of expert testimony as it affects the case cannot be put better than it was by J.W. Smith in the notes to Carter v. Boehm, 1 Smith L.C., 7th ed. (1876) p. 577. 'On the one hand' that author wrote, 'it appears to be admitted that the opinion of witnesses possessing peculiar skill is admissible whenever the subject-matter of inquiry is such that inexperienced persons are unlikely to prove capable of forming a correct judgment upon it without such assistance, in other words, when it so far partakes of the nature of a science as to require a course of previous habit, or study, in order to the attainment of a knowledge of it'."

252 In Bonython v R (1984) 38 SASR 45, which dealt with the admissibility of police handwriting evidence, King CJ (with whom Mathieson and Bollen JJ agreed) said (at 46):

"The general rule is that a witness may give evidence only as to matters observed by him. His opinions are not admissible. One of the recognised exceptions to this rule is that which relates to the opinions of an expert. This exception is confined to subjects which are not, or are not wholly, within the knowledge and experience of ordinary persons, Clark v Ryan [1960] HCA 42(1960) 103 CLR 486. On such subjects a witness may be allowed to express opinions if the witness is shown to possess sufficient knowledge or experience in relation to the subject upon which the opinion is sought to render his opinion of assistance to the court. Before allowing a witness to express such opinions, the judge must be satisfied that the witness possesses the necessary qualifications, whether those qualifications be acquired by study or experience or both. But when it is established that the witness is an expert in the relevant field of knowledge, he will be permitted to express his opinion, however unconvincing it might appear to be, Commissioner for Government Transport v Adamcik [1961] HCA 43(1961) 106 CLR 292 ... the weight to be attached to his opinion is a question for the jury."

253 His Honour described the test to be applied in the following passage (at 46 - 47):

"Before admitting the opinion of a witness into evidence as expert testimony, the judge must consider and decide two questions. The first is whether the subject matter of the opinion falls within the class of subjects upon which expert testimony is permissible. This first question may be divided into two parts: (a) whether the subject matter of the opinion is such that a person without instruction or experience in the area of knowledge or human experience would be able to form a sound judgment on the matter without the assistance of witnesses possessing special knowledge or experience in the area, and (b) whether the subject matter of the opinion forms part of a body of knowledge or experience which is sufficiently organised or recognised to be accepted as a reliable body of knowledge or experience, a special acquaintance with which by the witness would render his opinion of assistance to the court. The second question is whether the witness has acquired by study or experience sufficient knowledge of the subject to render his opinion of value in resolving the issues before the court.

An investigation of the methods used by the witness in arriving at his opinion may be pertinent, in certain circumstances, to the answers to both the above questions. If the witness has made use of new or unfamiliar techniques or technology, the court may require to be satisfied that such techniques or technology have a sufficient scientific basis to render results arrived at by that means part of a field of knowledge which is a proper subject of expert evidence. Examples of cases in which that question arose are Gilmore [1977] 2 NSWLR 935McHardie (1983) 10 A Crim R 51 and United States v Williams [1978] USCA2 671583 F 2d 1194 (1978)."

254 Whilst Osland is a recent case in which the High Court had occasion to articulate the test for admissibility of expert (opinion) evidence, the test itself was not there in issue. It was sufficient for Gaudron and Gummow JJ to express it broadly and in concise form. There may be some difference between their Honours' formulation that the relevant matter be one about which ordinary persons "are not able to form a sound judgment" without the assistance of an expert, and the Clark v Ryan formulation which required it only to be one on which inexperienced persons "are unlikely to prove capable of forming a correct judgment upon it" without such assistance. For present purposes, however, for reasons which will become apparent, it is not necessary for us to answer that question.

255 Polygraph evidence has not previously been admitted in any reported case in Australia. Its use appears to have been confined to the USA and Israel, although even there it is controversial. Freckleton and Selby (Expert Evidence, Law Book Co, Vol 1 p 1890) note that in the US the preponderance of authorities are against the admission of polygraph evidence.

256 The only reported Australian case is Murray (1981) 7 A Crim R 48, a decision of Sinclair DCJ in the District Court of New South Wales. In the course of the trial an accused sought to adduce evidence of the results of a polygraph examination conducted by Mr Glare. His Honour held the evidence to be inadmissible for the following reasons (at 49):

"(1) The sole purpose of the evidence is to bolster the credit of the accused as a witness. However, the veracity of the accused and the weight to be given to his evidence, and other witnesses called in the trial, is a matter for the jury to assess and on general principle such evidence, as counsel seeks to adduce, is excluded.

(2) The witness seeks to express an opinion as to ultimate facts in issue, which is peculiarly the province of the jury to determine on facts presented to them by witnesses who perceived them by the exercise of their physical senses.

(3) It purports to be expert evidence but the witness is not qualified as an expert, he is merely an operator and assessor of a polygraph. Furthermore the scientific premise upon which his assessment is based has not been proved in this Court or in any other court in Australia.

(4) Devoid of any proved or accepted scientific basis, the evidence of Mr. Glare is simple hearsay, which is inadmissible and of no probative value."

257 Having referred to two Canadian cases (Wong (1977) 1 WWR 1(BC) and Phillion (1974) 53 DLR (3d) 319 his Honour concluded that (at 50):

"The polygraph technique purports to be a scientific diagnosis of the testimony of a witness. Whatever may be the situation in some States of the United States of America, this 'evangelical sideline', as it was described, in passing, by Mr Glare which no doubt holds a genuine fascination for some people, has no place in a criminal trial in New South Wales where a machine operator seeks to express an opinion as to the veracity of an accused person's denial of the substance of the charges brought against him."

258 It is said on behalf of the petitioner that although a polygraph examination could have been conducted at the time of the petitioner's trial in 1995, the evidence is admissible on this appeal for three reasons.

259 The first is said to be that in 1995, the state of science of polygraph examinations was not as developed as it is today and the evidence is therefore "akin" to fresh evidence and ought to be admitted on that basis.

260 It is next submitted that in any event the petitioner did ask his lawyer, Mr Hogan, to organise a polygraph examination before trial so that he could prove his innocence but that was not done. There was no apparent forensic advantage to be gained from ignoring that request (as to which see Re Knowles [1984] VicRp 67[1984] VR 751 at 769). The petitioner should not be deprived of the opportunity to introduce this evidence as a result of a failure of his lawyer to act on his request.

261 Finally, in the context of the particular nature of this appeal, which rests primarily on whether the petitioner's "so called confession" was no more than his "theorising", it is in the interests of justice that he not be denied the opportunity to call scientific evidence, which is generally accepted, to support his assertion that he was not the murderer and was not confessing.

262 The first point will be dealt with later.

263 At the time of the petitioner's trial (and indeed as the law presently stands in Australia) polygraph evidence was inadmissible. The petitioner himself seems to have understood that a lie detector test was not admissible in court as he specifically adverted to that in his letter to Mr Hogan. It seems clear enough that Mr Hogan did not pursue the matter because he too, believed such evidence would be inadmissible.

264 In Knowles the petitioner had been convicted of the murder of his wife. There had been a struggle in the course of which she was stabbed in the neck. His defence was that the stabbing had occurred by accident. Before a trial, information became available to the defence lawyers that a former fiancée of the deceased and a former husband of hers, were each able to give evidence that she became aggressive when under the influence of alcohol. No such evidence was sought to be led at trial. That was because the lawyers acted on a line of single Judge authority in Victoria that in homicide cases in which either self defence or accident was an issue, evidence of the violent propensity of the deceased (and of which the accused had no previous knowledge) was not admissible. However, in one case such evidence had been permitted. The Court of Criminal Appeal held that the latter view of the law was plainly correct. The conflict between the authorities had been resolved in that way by the Full Court in a decision given after the petitioner's trial.

265 The Full Court (Crockett, McGarvie and Gobbo JJ) said (at 769):

"We must consider whether counsel ought to have sought to lead Swaine's evidence and ought to have requested that inquiries continue as to [the deceased's] propensity and to have called such evidence as those inquiries revealed. If Swaine's evidence and evidence such as that of Saunders had been tendered the probability is that it would have been admitted. It would have been likely to have been admitted either because the trial Judge regarded it as legally admissible or through the operation of the practice usually followed by trial judges that the benefit of the doubt, even on a ruling of admissibility of evidence, is to be given to the accused: see R. v. Patel (1951) 35 Cr. App. R. 62, at p. 66; [1951] 2 All E.R. 29. If the trial Judge had excluded the evidence and conviction had resulted the petitioner would have been able to appeal against the conviction on that ground. In our view there is no question but that counsel should have sought to lead the evidence. As mentioned above, it would have given the case on the whole of the evidence a complexion far more favourable to the defence. It would also have provided substantial support for the petitioner's credibility as a witness and this was of the utmost importance to his defence.

We can see no forensic reason other than error of law as to its admissibility which would have led defence counsel to decide not to call the evidence."

266 And on the same page went on to say:

"The decision not to call the evidence of the past conduct of the deceased was not a decision upon the best tactics to follow nor a decision as to the best of two or more courses to follow where each course appeared to have its advantages and disadvantages. Decisions of those types depend essentially on the judgment of counsel and counsel for the defence, familiar with all aspects and features of the trial, is in by far the best position to make such decisions. Decisions such as those, even if an appeal court thought that counsel had made an unwise or imprudent decision, would almost never found a successful appeal based on miscarriage of justice. The Crown argued that the decision now being considered was of the same type as those decisions but we do not agree."

267 The Court noted that the course to be taken in the conduct of the defence of an accused person is left to the judgment of the defence lawyers. A trial will not normally be regarded as having miscarried if an accused has been afforded a proper opportunity of choice and that choice has been made by the accused's legal representatives. However, there may be some circumstances in which such a choice could be vitiated. The Court referred to Ratten v R [1974] HCA 35(1974) 131 CLR 510 per Barwick CJ at 517 and R v Hadland [1969] VicRp 93[1969] VR 725 at 728. Their Honours then concluded (at 770):

"In this case counsel, believing the evidence to be inadmissible and without prospect of being admitted, would never have applied their minds to whether they should call Swaine's evidence and other evidence to a similar effect. Due to this fundamental error no choice was made by counsel as to whether or not it was in the interests of the petitioner to call this evidence. This resulted in the failure to tender the evidence. The error and omission were carried through to the appeal from the conviction. The affidavits indicate that counsel who argued the appeal on behalf of the petitioner was either guided by what senior counsel at the trial told him, that the evidence was inadmissible, or was unaware that such evidence was available. In this case, the error of counsel as to the admissibility of the evidence amounted to a vitiating factor.

Where there is a vitiating factor there may be circumstances where a failure to call important evidence which was available or could by reasonable diligence have been available to the defence, will lead to a miscarriage. The fundamental error by counsel as to the admissibility of the evidence of Swaine and evidence such as that of Saunders, which led them to think they had no choice and therefore to fail to make a choice whether or not to call it, could bring about a miscarriage of justice in the circumstances of this case, regardless of whether the evidence amounts to fresh evidence ..."

268 The Court held that by reason of the error by counsel that the evidence of the earlier conduct of the deceased was inadmissible, evidence of fundamental importance to the petitioner's defence had not been called and in all the circumstances of the case that brought about a miscarriage of justice.

269 If it be assumed, in the petitioner's favour, that the reasoning in these decisions should be followed in this case, it can be seen that obviously this ground of the petitioner's appeal can succeed only if the polygraph evidence would have been admissible on his trial.

270 It must immediately be accepted that expert opinion evidence should not be rejected merely because the technique, instrument or methodology has not been used in court before (R v McHardie and Danielson [1983] 2 NSWLR 733 at 763). Likewise, even where such evidence has been rejected as not satisfying the requirements for admissibility at one time, that may change. Subsequent theoretical or practical scientific developments may later lead to a conclusion that in light of the more developed state of the particular field of expertise it may meet the requirements for admissibility. Counsel for the petitioner claimed that is the situation here.

271 Until 1993 the principles applicable in the United States of America to the reception of expert evidence were those set out in the judgment in Frye v USA (1923) 293 F1013 which coincidentally, concerned a predecessor of the polygraph, described in that case as the "systolic blood pressure deception test".

272 The ground upon which the appellant put his case there was set out in the judgment:

"The rule is that the opinions of experts or skilled witnesses are admissible in evidence in those cases in which the matter of inquiry is such that inexperienced persons are unlikely to prove capable of forming a correct judgment upon it, for the reason that the subject-matter so far partakes of a science, art, or trade as to require a previous habit or experience or study in it, in order to acquire a knowledge of it. When the question involved does not lie within the range of common experience or common knowledge, but requires special experience or special knowledge, then the opinions of witnesses skilled in that particular science, art, or trade to which the question relates are admissible in evidence."

273 The Court held (at 1014):

"Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.

We think the systolic blood pressure deception test has not yet gained such standing and scientific recognition among physiological and psychological authorities as would justify the courts in admitting expert testimony deduced from the discovery, development, and experiments thus far made."

274 The Frye test (or "general acceptance test") was subsequently followed in almost all United States Federal courts and most of the 50 States. Although it was subject to considerable and at times strong criticism, it nonetheless continued to be law in the United States until 1993.

275 The party offering the novel scientific evidence has the burden of demonstrating that it has been accepted as reliable among impartial and disinterested experts within the scientific community (Kluck v Borland 413 NW 2d 90 (1984) at 91).

276 The courts will have regard to whether or not the proponent of novel scientific evidence has some personal vested interest in securing its admissibility. In People v Young 391 NW 2d 270 (1986) it was held that the evidence of a State police detective who performed tests on evidence at a State crime laboratory was inadmissible as failing to meet the criterion requiring impartiality and lack of financial interest.

277 In the 1980s some United States courts moved away from the Frye test, preferring to focus more on the relevance of the evidence and an evaluation of its propensity to mislead or confuse. Freckleton and Selby observe (supra, Vol 1, page 2255) that the result was a stringent standard which focussed both upon relevance and reliability, rather than merely upon acceptance within the relevant profession (citing United States v Downing [1985] USCA3 97753 F 2d 1224 (3rd Circ 1985).

278 The learned authors note that in Downing the Court explicitly rejected the Frye standard and made reliability of the expert evidence its criterion for admissibility – although recognising that reliability depends upon a number of factors, acceptance within a particular scientific community being one of them (albeit not determinative).

279 Subsequent developments of the Frye test eventually resulted in a conclusion that the admissibility of expert testimony upon the application of a new scientific technique involves a two step process – first the reliability of the method must be established usually by expert testimony and secondly the witness furnishing such testimony must be properly qualified as an expert to give an opinion on the subject. Furthermore, the proponent of the evidence must demonstrate that correct scientific procedures were used in the particular case. "Reliability" was still to be shown in terms of Frye "general acceptance" (People v Kelly Cal 3d 24 (1976)).

280 The question whether the Frye test was the proper criterion for the admissibility of "novel scientific evidence" was finally resolved by the United States Supreme Court in Daubert v Merrell Dow Pharmaceuticals Inc [1993] USSC 99(1993) 509 US 579.

281 281 The Court held that the Frye test had not survived the Federal Rules of Evidence 1975 (US) which had focussed on whether scientific evidence would "assist a trier of fact to understand the evidence or to determine a fact in issue". The Court unanimously found that a "rigid general acceptance" requirement would be in conflict with the "liberal thrust" of the Federal Rules and their general approach to relaxing the traditional barriers to expert opinion evidence.

282 As Freckleton and Selby explain (supra Vol 1 page 2258) the majority in Daubert noted the distinction between scientific validity (does the principle support what it purports to show?) and "reliability" (does application of the principle produce consistent results?). In a case involving scientific evidence, evidentiary reliability is necessary for admissibility. This would be based upon scientific validity. The requirement that the evidence "assist" the trier of fact necessitates a valid scientific connection to the pertinent enquiry as a condition of admissibility. The Court adumbrated a series of indicia which would generally be relevant to the enquiry where the particular scientific evidence would assist the trier of fact. Those indicia included the question whether a technique had gained general acceptance within the scientific community. The majority confirmed that the focus of the enquiry is upon the principles and methodology rather than the conclusions they generate.

283 Like Frye itself, the Daubert decision has proved highly controversial in the United States.

284 It is noteworthy that the Frye test was not rejected by the United States Supreme Court for any lack of legal principle; the judgment in Daubert turned entirely on the recognition that it had been superseded by the Federal Rules of Evidence 1975.

285 The Frye test has been adopted and applied in a number of Australian jurisdictions (R v Gallagher [2001] NSWSC 462Idoport Pty Ltd v National Australia Bank Ltd [1999] NSWSC 828 at [239]R v Runjanjic and Kontinnen [1991] SASC 2951(1991) 53 A Crim R 362R v Karger [2001] SASC 64(2001) 83 SASR 1.

286 In R v Pantoja (1996) 88 A Crim R 554 Hunt CJ at CL (with whom Hidden J agreed) endorsed the application of the Frye test in New South Wales, in the context of DNA evidence. He pointed out that such evidence had been accepted in accordance with the approach to scientific evidence generally adopted by that Court in R v Gilmore [1977] 2 NSWLR 935 at 939-941. His Honour expressly referred to Frye, upon which Gilmore was based, noting that although that case had been reversed by Daubert that had been because of the Federal Rules of Evidence and did not involve a reversal of the principle enunciated in Frye. His Honour held that New South Wales courts should continue to adopt the approach accepted in Gilmore until that decision was further considered by that Court or the High Court.

287 In Runjanjic (supra), in which the South Australian Court of Criminal Appeal held that evidence of "battered woman syndrome" was admissible, King CJ held (at 366) that:

"An essential prerequisite to the admission of expert evidence as to the battered woman syndrome is that it be accepted by experts competent in the field of psychology or psychiatry as a scientifically established facet of psychology. This must be established by appropriate evidence."

288 We accept the proposition in Kluck v Borland (supra) that the party offering the novel scientific evidence has the burden of demonstrating that it has been accepted as reliable among impartial and disinterested experts within the scientific community.

289 It was submitted on behalf of the petitioner that even if we were to take the view that Mr Van Aperen's evidence of the CQT tests relates solely to the credibility of the petitioner, we should nevertheless accept there is a difference between self-serving statements by an accused or a paid "oath-helper" and an expert, impartial examiner who gives evidence of the results of a technical examination. In support of this submission counsel rely on the statement in Phipson on Evidence (2000, 15th ed Sweet & Maxwell, London, [37-13]) that evidence of a polygraph examination "... is in reality little different from a police officer giving evidence that during an interview the accused shuffled, stammered or sweated profusely".

290 We note, however, that the passage quoted immediately continues:

"While a jury might draw certain conclusions about the truthfulness of a man who behaved in this way as a result of their own intuitions about human behaviour, it is thought that such evidence would be inadmissible, in part at least because the conditions of a police interrogation are so different from the ordinary circumstances of life to which the jury and the accused are accustomed. For the same reason, we do not think that evidence of the results of polygraph tests would be admitted in England in their present state of development."

291 In any event, we do not agree with the initial observation. We consider that the learned authors misapprehend the nature of polygraph evidence. The fundamental difference between polygraph evidence and that of the police officer example is that the latter gives evidence only of his or her physical observations. Such a witness is not permitted to say that based on such observations he or she thought the accused was lying (or telling the truth) – yet that is exactly what it is sought to have the polygraph examiner do.

292 The Supreme Court of Canada has excluded the results of polygraph examinations sought to be led to establish the truth of an accused's denials of committing the crime. In Phillion (supra), the appellant at his trial for murder had sought to introduce evidence of a polygraph operator based on a polygraph test he performed on the appellant to determine whether the appellant's denial to him of having committed the murder was true. The evidence was offered to show that the appellant had lied to the police when he confessed to them. The trial Judge refused to admit the evidence. The appeal to the Ontario Court of Appeal was dismissed, as was the appeal to the Supreme Court of Canada. All members of the Court held the evidence was inadmissible. Richie J, with whom Martland and Judson JJ concurred, said (at 140):

"The polygraph evidence which was sought to be introduced is accurately recorded in the judgment of the Court of appeal as follows [20 C.C.C. (2d) 191 at p. 192, 53 D.L.R. (3d) 319 at p. 320, 5 O.R. (2d) 656]:
'Q. Mr. Reid, on the basis of your experience and the recordings that you made of Mr. Phillion, during the course of the polygraph test, did you form an opinion as to whether he was telling the truth when he answered no to the relevant questions?



'A. I am of the opinion that he is telling the truth when he answered no to the relevant questions.'
Among the relevant questions were the following:
'Did you stab Leopold Roy on august 9th, 1967?

'Did you kill Leopold Roy on august 9th, 1967?'
In my view, Mr. Reid had neither the qualifications nor the opportunity to form a mature opinion of the propensity of the man he was subjecting to the test either as to truthfulness or otherwise. His opinion, however, was not based on the statements made by the appellant, but on his own expertise in interpreting the recordings of the machine. If the statements had been made to Mr. Reid alone, there is in my opinion no doubt that they would have been inadmissible as self-serving, second-hand evidence tendered in proof of its truth on behalf of an accused who did not see fit to testify and I am not prepared to hold on the evidence of this case that the presence of the polygraph machine or the expertise of its operator made them admissible. The admission of such evidence would mean that any accused person who had made a confession could elect not to deny its truth under oath and substitute for his own evidence the results produced by a mechanical device in the hands of a skilled operator relying exclusively on its efficacy as a test of veracity."

293 Phillion was affirmed by the Supreme Court of Canada in Beland (supra). Several accused had been tried by Judge alone on a charge of conspiracy to commit robbery. They each testified and denied participation in the conspiracy. Each stated that he was ready to submit to a lie detector test. They applied to take a polygraph test and adduce the results of that test. The trial Judge held that the evidence would be inadmissible. The accuseds' appeal to the Quebec Court of Appeal was allowed, however on appeal to the Supreme Court of Canada that Court restored the convictions.

294 MacIntrye J (with whom Dixon CJC, Beetz and LeDain JJ concurred) held that the admission of such evidence in the circumstances of the case offended several of the rules of evidence, including that against producing evidence solely for the purpose of bolstering a witness' credibility and that against the admission of past consistent out of court statements. At page 416 - 417 his Honour said:

"... it is my opinion, based upon a consideration of rules of evidence long established and applied in our courts, that the polygraph has no place in the judicial process where it is employed as a tool to determine or to test the credibility of witnesses. It is frequently argued that the polygraph represents an application of modern scientific knowledge and experience to the task of determining the veracity of human utterances. It is said that the courts should welcome this device and not cling to the imperfect methods of the past in such an important task. This argument has a superficial appeal but, in my view, it cannot prevail in the face of the realities of court procedures.

I would say at once that this view is not based on a fear of the inaccuracies of the polygraph. On that question we were not supplied with sufficient evidence to reach a conclusion. However, it may be said that even the finding of a significant percentage of error in its results would not, by itself, be sufficient ground to exclude it as an instrument for use in the courts. Error is inherent in human affairs, scientific or unscientific. It exists within our established court procedures and must always be guarded against. The compelling reason, in my view, for the exclusion of the evidence of polygraph results in judicial proceedings is two-fold. First, the admission of polygraph evidence would run counter to the well-established rules of evidence which have been referred to. Second, while there is no reason why the rules of evidence should not be modified where improvement will result, it is my view that the admission of polygraph evidence will serve no purpose which is not already served. It will disrupt proceedings, cause delays, and lead to numerous complications which will result in no greater degree of certainty in the process than that which already exists."

295 At page 417 - 418 his Honour continued:

"What would be served by the introduction of evidence of polygraph readings into the judicial process? To begin with, it must be remembered that however scientific it may be, its use in court depends on the human intervention of the operator. Whatever results are recorded by the polygraph instrument, their nature and significance reach the trier of fact through the mouth of the operator. Human fallibility is therefore present as before, but now it may be said to be fortified with the mystique of science. Then, it may be asked, what does it do? It provides evidence on the issue of the credibility of a witness. This has always been a collateral issue and one to be decided by the trier of fact. Is the trier of fact assisted by hearing, firstly from witness 'A' that he was not present at the scene of the crime, and then from witness 'B', a polygraph operator, that 'A' was probably truthful? What would the result be, one may ask, if the polygraph operator concluded from his test that witness 'A' was lying? Would such evidence be admissible, could it be excluded by witness 'A', could it be introduced by the Crown? These are serious questions and they lead to others. Would it be open to the opponent of the person relying upon the polygraph to have a second polygraph examination taken for his purposes? If the results differed, which would prevail, and what right would there be for compelling the production of polygraph evidence in the possession of a reluctant party? It is this fear of turmoil in the courts which lead me to reject the polygraph."

296 The present position in the United States is most usefully set out in the judgment of District Judge Richard J Knowles of the Second Judicial District Court, Bernalillo County, New Mexico as recently as August 2003 in Lee & Ors v Loudes Martinez (New Mexico) No CS2003-00026 (Supreme Court No 27,915).

297 In outlining the forensic history of polygraph evidence his Honour noted that polygraph evidence was held inadmissible 80 years ago in Frye. Following the standards for the admission of scientific evidence being changed by Daubert, supporters of polygraph evidence sought its admission under the new standards. His Honour noted they have had little success either before courts that have maintained pre-Daubert standards or courts that have adopted Daubert. 27 States and the District of Columbia apply a per se rule of exclusion of polygraph evidence for all purposes. 17 States admit polygraph evidence at trial only when its admission is stipulated (agreed) to in advance by all parties. Appellate decisions in such cases do not claim that the evidence is probative or becomes reliable due to the stipulation. Two other States admit stipulated results but in limited circumstances and another two allow the admission of polygraph evidence without stipulation but only in post-trial proceedings. One State generally bars admission of polygraph evidence, but the decision is left to the discretion of the trial Judge.

298 Knowles DCJ observed that in United States v Scheffer [1998] USSC 32523 US 303 (1998) the Supreme Court of the United States held that military courts' per se rule excluding polygraph evidence did not violate a defendant's right under the Fifth or Sixth Amendment to present a defence, but beyond that holding the decision "lacks precedence value given the fractured makeup of the Court's three opinions".

299 In contrast to the majority of State courts only two Federal circuits have a per se rule barring admissibility. Most Federal appellate courts leave admission of polygraph evidence to the discretion of the trial courts, but generally such evidence is excluded on the basis of Daubert.

300 His Honour noted that a District Court in United States v Crumbie 895 F Supp 1354, 1363 (D.Ariz. 1995) admitted the evidence with severe limitations while noting that "the prejudicial effect of permitting the jury to hear the specific responses to the question of whether the defendant committed the ultimate crime in the case is overwhelmingly prejudicial". Crumbie is a case relied upon by the petitioner in the present proceedings. It is submitted that evidence of polygraph examinations should be admissible on the same conditions as those imposed by the court in Crumbie, they being that:

(a) the party seeking to use the evidence must provide sufficient notice to the opposing party;

(b) the opposing party must be given a reasonable opportunity to administer a polygraph examination which is materially similar to the previous examination; and

(c) the evidence to be led be subject to the rules of evidence so that the respondent may cross-examine the petitioner's experts and may lead any evidence which might attempt to show the polygraph examinations are not as reliable as claimed.

301 In Lee v Martinez Knowles DCJ noted that the Crumbie decision failed to mention any of the studies which challenged the validity of polygraph tests and that it and one other case are exceptions, even within their own Federal circuits, to the general rule that polygraph evidence is not admitted in Federal courts.

302 It is interesting to note that in Lee v Martinez evidence going to the use of the polygraph was given by Dr Iacono, Dr Raskin and Dr Honts.

303 The conclusions of law arrived at by Knowles DCJ were (ibid page 24-25):

"1. Polygraph test results and the conclusions derived from them are not based upon an overarching theory. To the extent it is merely argued that there is a hypothesis that the test reliably detects deception, that hypothesis has not been subjected to field research. The existing laboratory research, given the problems described above, is woefully inadequate to support admissibility in court in real life contexts.

2. There is no theory, as stated above. The technique has been subjected to limited peer review publication. The conclusions of the relevant publications do not enhance confidence in the test result, particularly considering the effectiveness of counter-measures.



3. The potential rate of error is vague and unreliable. Given the effect of ignoring base rates as endorsed by proponents, the reliability of test results as reflected in an actual percentage misrepresents the confidence level in the test.



4. There are no set standards other than those set out in Rule 11-707 NMRA 2003. Those standards are insufficient for the reasons set out above.



5. Control question polygraph tests are not accepted in the relevant scientific community at a significant level, particularly considering the age of the technique.

6. The technique is not based upon well-recognized scientific principles and is not capable of supporting opinions based upon reasonable probability rather than conjecture.

7. If the risk of counter-measures is ignored, there is an argument that all of the studies taken together support a conclusion that a successful polygraph result makes a fact in issue more or less probable. However, given the state of the art of polygraphy, the limited probative value polygraph test results is substantially outweighed by the danger of confusion of the issues, undue delay, and waste of time and therefore polygraph evidence becomes inadmissible under Rule 11-403 NMRA 2003.

8. At least one court has found that testimony that someone has passed a polygraph examination is extrinsic evidence of a specific instance of conduct (passing the polygraph) that supports a witness's credibility, and is therefore inadmissible under Rule 11-608 B. US v Piccinonna729 F.Supp. 1336, 1338 (S.D.Fla.1990), aff'd by U.S. v. Piccinonna[1991] USCA11 252925 F.2d 1474 (11th Cir. 1991).

9. Because of the inherently subjective nature of the test procedure, the polygraph examination can not be repeated. Successful repetition of a test is the cornerstone of the scientific method. It lacks test-retest reliability.

10. The results of polygraph testing are not sufficiently reliable for admissibility in courts in New Mexico."

304 In State of Idaho v Perry Idaho Supreme Court 2003 Opinion No109, 5 November 2003, the Idaho Supreme Court reversed a District Court ruling allowing the admission on behalf of the accused of polygraph testing by Dr Honts. The Court applied Daubert in the context of the Idaho Rules of Evidence. The Court referred to one of its earlier decisions holding that for scientific evidence to be admitted, it must be supported by appropriate validation, establishing a standard of evidentiary reliability, and must assist the trier of fact to understand the evidence or to determine a fact in issue.

305 Having examined the evidence and the authorities, the Court concluded that (at page 8):

"In this case, the results of the polygraph are useful to bolster Perry's credibility but do not provide the trier of fact with any additional information that pertains to Perry's case. The fact of whether the alleged act occurred is for the jury to decide. Charley, 189 F.3d at 1270. Additionally, credibility questions are left to the trier of fact, in this case a jury. See Goodwin, 232 F.3d at 609. the polygraph results in this case do not help the trier of fact to find facts or to understand the evidence as required by I.R.E. 702. to admit these results is an attempt to substitute the credibility determination appropriate for the jury, with Dr. Honts' interpretation of the alleged involuntary physiological results from the polygraph examination. Dr. Honts usurps the role of the jury as the ultimate finder of credibility.

Therefore, this Court holds Dr. Honts' testimony as well as the polygraph results, inadmissible and reverses the decision of the district court" (our emphasis).

306 In addition to the affidavit and oral evidence of the expert witnesses to which we have adverted, we have been referred to extensive articles, journals and other publications bearing on the topic. It clear from the evidence and the material that there has been a long running dispute between polygraphers who argue for the use of polygraphy as evidence in courts and certain psychologists, physiologists and others who regard polygraphy as lacking any scientific basis and not having been shown to be reliable and therefore oppose their evidentiary use (although some of the latter acknowledge the GKT test has some limited utility as an investigative tool). Professor Honts himself described the protagonists as engaging in "... lengthy and often acrimonious debate ..." (Honts et al (1995) International Journal of Psychophysiology). On our reading of the material that would seem to be an accurate description. Freckleton and Selby state (supra Vol 1 – 1890):

"The polygraph's reliability remains controversial with passionate opponents of its reliability (see the discussion in Kapardis (1997) (page 216-223)) remaining probably in the ascendancy in relation to its forensic, as against its investigative, use."

307 Professor Honts, described by counsel for the petitioner as perhaps "the spearhead" of those advocating the admissibility of polygraph evidence, is currently Professor of Psychology in the Department of Psychology at Boise State University, Idaho, USA. He has held that position since 1995. Between August 2000 and May 2003 he was head of the Psychology Department at Boise State University. He has had numerous research and teaching appointments at tertiary institutions in the United States. He has provided instruction on psychophysiology, psychology, physiology, polygraph examinations and related topics at a number of institutions and for a number of organisations including the Federal Bureau of Investigation and the United States Secret Service.

308 He is a charter member of the American Physiological Society. He is the author of over 100 professional publications and reports, almost all of which concern the psychophysiological detection of deception. In his affidavit he says that since 1983 he has provided expert witness testimony in courts on polygraph examinations and child witness issues in more than 60 proceedings across the United States.

309 Professor Honts asserts that polygraph tests have gained general acceptance in the scientific fields of psychology and psychophysiology "and in the areas of those disciplines devoted to credibility assessment".

310 He concedes that there is no overarching theory which describes all aspects of why the polygraph works but says that polygraphy holds this lack of comprehensive theory in common with essentially all of applied psychology and that the lack of overarching theory poses no problem for applying the technique in examining the credibility of criminal suspects in the context of a criminal investigation or court proceeding. It is Professor Honts' evidence that polygraphy (which he also describes as "psychophysiological credibility assessment") is based on a scientific theory or proposition that can be tested with the methods of science (that is, falsified), namely that any conscious effort at a deception by a rational individual causes involuntary and uncontrollable physiological responses that may include measurable reactions in blood pressure, peripheral pulse amplitude, breathing and electro-dermal response. He says that the rationale of the CQT test predicts that guilty subjects will produce larger physiological responses to the relevant questions to which they know they are deceptive, than to the relatively unimportant comparison questions. Innocent subjects are expected to produce larger physiological responses to the comparison questions, to which they are assumed to be either deceptive, or at least uncertain of the veracity of their answer, than to the truthfully answered relevant questions.

311 Professor Honts referred to numerous studies published in what he claimed were peer-reviewed scientific journals which he says indicate that the CQT is a very accurate discriminator of truth tellers and deceivers. Generally, he expressed the view that independent evaluations of the accuracy or reliability of polygraph testing showed accuracy rates ranging from in excess of 86 per cent to about 90 per cent.

312 The Professor also relied upon surveys, the existence of a large number of peer reviewed publications, the proliferation of peer-reviewed scientific publications and journals and a report by the National Research Council of the National Academy of Sciences as evidencing that the polygraph is generally accepted in the relevant scientific community as a valid test. He claims that the National Research Council report estimated that the polygraph in forensic settings was 89 per cent accurate.

313 In his evidence-in-chief Professor Honts expressed the general conclusion that polygraph CQT tests conducted in respect of a person's credibility on a specific issue can be highly accurate. But he said there are caveats on that in that the tests have to be run properly, they need to be on a pertinent issue and then there are other issues about countermeasures and other factors.

314 Professor William Iacono is Professor of Psychology, Psychiatry, Law and Neuroscience and an Adjunct Professor of Child Development at the University of Minnesota in the United States of America. He was Director of the Clinical Psychology Training Programme at that University between 1995 and 2002. He has studied polygraph testing for about 20 years and psychophysiology, the basic science from which polygraph testing is an application, is one of his areas of specialisation.

315 He is a past president of the International Society for Psychophysiological Research and has published over 200 scientific articles, including over two dozen on "lie detection" or polygraphy. He has served as a polygraphic consultant to various United States government agencies, including the U S Congress Office of Technology Assessment, the Central Intelligence Agency, the United States General Accounting Office, the Joint Security Commission of the Clinton Administration and the U S Department of Defense. He served on the Department of Defense Polygraph Institute's Curriculum and Research Guidance Committee for approximately four years. He has testified on the topic before legislative committees and Federal and State level in the United States and in the United States State and Federal Courts.

316 Professor Iacono maintains there is no such thing as a "lie detector test". He says there is no pattern of physiological activity that is uniquely associated with lying or any human emotion. All that can be determined when a polygraph procedure is administered, is whether a person responds more strongly to one type of question than another. A polygraph cannot be used to determine why a person responds differentially to certain questions.

317 Professor Iacono says that the CQT is not a test, but is rather a type of interview that is assisted by a physiological recording. He says that it is neither objective nor standardised. Instead, each examiner formulates questions based on his or her understanding of the facts of the case and how the "pre-test" interview with the suspect proceeds. Two examiners giving a CQT to the same suspect are thus likely to use different questions.

318 He points out that the scoring of the CQT is also subjective and is itself influenced by the examiner's impressions of the suspect's truthfulness.

319 He emphasises the importance of noting that the control question in a CQT is not a control in the scientific sense. If it were it would be identical to the relevant question in all respects but one, namely whether the answer was truthful or a lie.

320 Professor Iacono posits that in the present case, a true "control" in the scientific sense would exist if the petitioner was accused of two murders, that of Pamela Lawrence and that of another woman murdered under similar circumstances. Unbeknown to him, however, the second murder would be a fiction invented by the police so that he could be asked a question on the polygraph examination that would involve both a serious accusation and a known truthful response. If the petitioner responded in the same way to both questions, it could be inferred that he was telling the truth about the real murder. If he responded more to the question about Pamela Lawrence, it would be known he was lying.

321 Professor Iacono explained that CQT so called "control" questions differ in many ways from true scientific controls in that it is not known for certain if the subject is lying in response to them, nor how the accusation they contain compares in significance to the accusation made in the relevant questions – hence it is not known why a person might respond more to a control than a relevant question. A control question may have special significance to an examinee that is unknown to the examiner.

322 In terms of general acceptance, Professor Iacono testified that scientists generally at arms length from the polygraph profession who have expressed opinions regarding the scientific basis of polygraph testing have repeatedly found the test to have little scientific support. He maintained this has been shown in surveys of scientists, how polygraph test validity is dealt with in psychology text books and in independent scientific reviews. He referred to a number of these in evidence and several of them were provided to us.

323 One aspect of Professor Iacono's evidence which should particularly be mentioned is his observations about the possibility that the petitioner may have "habituated" to relevant questions.

324 The polygraph examination conducted by Mr Van Aperen was the second polygraph examination undergone by the petitioner. The first was that conducted by Mr Glare.

325 Mr Van Aperen's polygraph examination took place more than seven years after the petitioner was convicted of the crime. The murder itself occurred some nine years before the test. From the time of his arrest, through his trial and incarceration, his first appeal and the first polygraph examination, the petitioner has repeatedly discussed and answered questions about the allegations. According to Professor Iacono, such rehearsal and repeated questioning gives the subject an opportunity to become emotionally prepared for questions about the crime and reduce the likelihood that strong physiological reactions will continue to be elicited by such queries. In psychological terms, the subject may have habituated to the stimuli represented by the relevant questions. The control questions, by contrast, involve new matters not previously raised and are thus more likely to elicit a strong physiological reaction.

326 Professor Iacono was severely critical of the report by Ansley cited by Mr Van Aperen in support of his contention that the accuracy of "real life" polygraphy testing has been estimated at 98 per cent. The article by Norman Ansley was published in a polygraph trade journal "Polygraph". Professor Iacono's evidence was that this is not a scientific journal and Mr Ansley does not have scientific credentials. The report purports to review 10 studies using real life cases to estimate how accurate the polygraph test is in real life. In Professor Iacono's view, the conclusion of 98 per cent accuracy estimated by Mr Ansley and the author's analysis, are wholly without merit. Not one of the 10 studies listed in the table involved a citation to an article in a scientific journal. He referred to a similar example, namely a report by Edwards (1981) who surveyed Virginia polygraphers to ask them how many of their cases were "verified" as to the guilt or innocence of the person they tested, and how often their test was correct. He said those who responded to this uncontrolled, unscientific, self-serving survey indicated, as expected, that they were almost never wrong.

327 Professor Iacono referred to the report "Of the Polygraph and Lie Detection" by the National Research Council of the National Academies, National Academies Press, Washington DC 2003. He gave details of references to that report. The panel noted that polygraph testing was not based on sound scientific theory, research in the area was of poor quality and overestimated accuracy, that the tests are not standardised and are easily influenced by how examiners conduct them and that computerisation of scoring has added negligibly to improved accuracy.

328 Although Professor Iacono is one of those who accepts that GKT is a procedure that does have a proper scientific foundation and that it can be carried out in a manner which would constitute evidence with probative value, he observes that the test described by Mr Van Aperen as a GKT test was not a true GKT test at all, was not properly conducted and did not reflect a proper understanding of the technique.

329 We note though, that acceptance of the GKT test goes to its use as an investigative tool, not evidence of truthfulness or otherwise.

330 It is not necessary for us to set out in any detail the evidence in relation to how a GKT examination may properly be conducted. Suffice to say that Mr Van Aperen's version of the GKT has none of the requisite features. In particular, the test requires that the police know the correct response to each item and that the correct response to each item is unknown to all suspects but the perpetrator.

331 In the present case the answer to the question (whether any one of the specified items was the murder weapon) is not known to the police –and to the extent there exist hypotheses as to what the likely murder weapon was, the petitioner knows what those hypotheses are as a consequence of his arrest, interrogation, trial and the appeal process. As Professor Iacono pointed out, in his video interrogation by the police the petitioner spoke of the murder weapon being a wrench and he drew a picture of a wrench. According to Professor Iacono, the very fact that he did this makes the wrench highly salient among the multiple choice alternatives on the first series of Mr Van Aperen's tests. Hence, even if the petitioner was completely innocent, he should have given the strongest response to this possible murder weapon. The fact that he did not has no bearing on his innocence. In Professor Iacono's opinion, the petitioner should have responded like a guilty person to the item "wrench", because, like a guilty person, the word had a special meaning to him. In the Professor's opinion "the fact that he did not consistently respond strongly to this item actually indicates that he 'beat' the test, not that he was innocent".

332 Professor Iacono's conclusion was that Mr Van Aperen's three polygraph tests shed little light on the petitioner's claimed innocence, even on the assumption (which he disputed) that the CQT test is scientifically valid. The purported GKT test has no value at all; it only indicates that the petitioner does not respond to items that have obvious relevance to him, despite the expectation that strong responses would be elicited. He adverts to certain problematical aspects of the CQT tests and suggests that the petitioner's preoccupation with the control questions in his second CQT series would favour his passing this test even if guilty.

333 We note Professor Iacono's testimony that the U S Department of Justice has consistently opposed the use of polygraph tests in criminal trials.

334 He acknowledged that his views stand in sharp contrast to those of Dr Honts on the scientific basis of polygraph testing but maintains that his views are shared by psychologists who have critically examined polygraph testing and who are at arms length from the polygraph profession.

335 Professor Furedy has been Professor of Psychology at the University of Toronto, Canada since 1975. His specific areas of professional interest are expressed in over 400 publications, including various areas in psychophysiology, and in particular such "purported" applications of that science as lie detection and bio feedback.

336 He has been employed as a consultant to the Australian Security Intelligence Organisation on whether to follow the United States' practice in using the polygraph for security checks, and has been a consultant and expert witness on problems related to the use of the polygraph in both the civil and criminal jurisdictions, both in relation to "hostile" and "friendly" polygraphy.

337 He is highly critical of and strongly opposes, the use of the polygraph for evidentiary purposes.

338 Professor Furedy contends that the CQT is not a test at all in the sense that an IQ test is a test. The latter are controversial in terms of their validity (that is, how accurately they measure intelligence) but are scientifically based and are standardised procedures with a predetermined length and set of questions, so that the test given by one competent operator is essentially the same as that given by another. He points out that in contrast, the so called "control" questions of the CQT are constructed by the examiner as a result of discussion with the examinee. He argues that as the examination is not a standardised test, and because the relevant/control comparison does not involve the difference between deception and no deception, a "deceptive" result may occur simply because the examinee, although not deceptive, is more concerned or anxious about the relevant questions than issues related to the "control" questions. He points out that psychophysiology's only universal law is that the greater the psychological impact or significance of a stimulus, the greater the autonomic response to it.

339 Professor Furedy's evidence was that even psychophysiologists who support the CQT (such as Professor Honts) agree that countermeasures that cannot readily be detected can affect the relevant/control comparison outcome and that there is now a large body of experimental literature and high quality scientific journals supporting that position.

340 Fundamentally, Professor Furedy is of the view that the polygraph procedure is completely unstandardised and has no scientific rationale. Furthermore, and importantly, as the CQT polygraph is not a standardised test, it is not possible to state in general terms what its accuracy is, because that will vary with each polygraph examination.

341 According to Professor Furedy, research now shows that countermeasures to polygraph tests are not just "possible" but can be quite effective in increasing responsivity to the control questions. That of course has the effect of leading to the conclusion that the examinee is less concerned about (ie less responsive to) the relevant questions than the control questions. A simple and potentially effective psychological countermeasure, which can be worked out by anyone with enough time to think about how to "beat" the CQT polygraph, is to think exciting thoughts (eliciting anger or fear) whenever a control question is asked. Such countermeasures cannot readily be observed by the examiner.

342 Professor Furedy strongly disputes Mr Van Aperen's contention that modern polygraphy has been derived from scientific principles and evidence of psychology and psychophysiology – it is his firm view that the CQT polygraph has no sensible scientific rationale at all. He was particularly critical of the very precise figure given by Mr Aperen regarding his degree of confidence, based on the Axcitron computerised programme, that the petitioner was "innocent". He referred to that as "... pseudo scientific exactitude", saying that research on the "accuracy" of the polygraph is meaningless, because it depends too much on the beliefs of the examiner and the examinee, the relationship between them and what goes on in what is an unspecifiable dynamic interview situation. He referred to a committee report ("The Porges Committee") which was scathing in its criticism of the Polyscore computer programme. We have read that report and agree that it is particularly caustic, concluding that the marketing of the Polyscore algorithm (which is the one Mr Van Aperen used) as providing a probability of deception in the field is "unwarranted" and "professionally irresponsible".

343 Dr Drew Richardson has a PhD in physiology, his dissertation for which centred on various non-invasive technologies used to measure autonomic nervous system changes associated with a "lie detection" task.

344 He has worked as a synthetic organic chemist before joining the United Stated Federal Bureau of Investigation in 1976 where he was a field investigative agent until 1978 and then a supervisory special agent in the FBI laboratory until August 2001. For about two years in the early 1990s he was formally associated with the FBI laboratory's polygraph research programme. During that time he prepared materials related to various cardio-vascular indices used in "lie detection" task, pharmacological countermeasures, neurophysiological indices that might be used in a concealed information task and methods of mathematical models of polygraphical data transformation. He is a graduate of the basic polygraph examiner's course taught at the United States Department of Defense Polygraph Institute.

345 In Dr Richardson's opinion the CQT test is fundamentally lacking and flawed with regard to underlying scientific theory. It is not a specifiable and repeatable test in any formalised sense, and what are referred to as the "control" questions (and more recently as "comparison" questions) add no degree of scientific "control" to the procedure whatsoever.

346 Some of his reasons for reaching these conclusions include that the autonomic nervous system physiology being measured by a polygraph examiner can react to the stimulus associated with polygraph questions for a number of reasons other than deception. Some of those include fear of being caught in a lie, fear of unjustly being accused of lying, surprise, anger, noise, movement, pain (which can be caused at random points by the pressure of the cardio cuff which is part of the polygraph), variations in the voice inflexion of the examiner and a host of other operator actions or errors which might be committed by any examiner. Dr Richardson says that these various types of reactions are largely indistinguishable and several of the causative stimuli are nearly impossible to control.

347 He points out that polygraph procedures are not standardised. Thus, there is virtually an infinite number of dimensions along which the "relevant" and "control" questions can differ, including time, potential consequences to the examinee, and amount of time and attention paid to "developing" the questions. In his opinion no logical inference can be drawn from the comparison of the examinee's reactions to the relevant and control of questions. The accuracy of the CQT test can therefore only be rhetorically, or anecdotally, but not empirically, evaluated. There is no way independently to measure the emotional content or affect of the control questions, nor the relational nature of the affect or chosen relevant and control question pairings. This problem is intrinsic to CQT polygraphy and means that the results of a CQT polygraph cannot be meaningfully analysed.

348 He noted that all experimental studies dealing with the subject of countermeasures (and the National Academy of Science's report) conclude that the use of countermeasures can seriously degrade the accuracy of polygraph examinations.

349 We have given this very brief outline of some of the aspects of the evidence given by these witnesses merely to give some indication of the extent to which they differ. We do not propose to canvas all of the evidence they gave nor that which may be drawn from the extensive range of publications to which we have been referred. We have considered all of that evidence and material.

350 It is as well to observe at this point that an assessment of expert evidence is not to be determined by the number of experts called by one party as against the number called by the other party. It is necessary to evaluate the evidence of experts in the same way as that task is undertaken in relation to any other witness, as well as by taking proper cognizance of the experts' respective qualifications and experience and the soundness of their opinions.

351 We are mindful that we are here concerned with the issue of admissibility and that if the admissibility threshold is crossed the weight to be given to the opinions of expert witnesses in a criminal trial is a matter for the jury. The mere fact that experts conflict does not mean their evidence is inadmissible or that the area of expertise is not one apt for the expression of a scientific or expert opinion (Chamberlain v The Queen (No 2) [1984] HCA 7(1984) 153 CLR 521 per Gibbs CJ and Mason J at 598; Hocking v Bell [1945] HCA 16(1945) 71 CLR 430, 440).

352 We are obliged to say that overall we find the evidence of Professors Iacono and Furedy and Dr Richardson most persuasive.

353 In the late 1980s Professor Furedy initially came from a position of substantial acceptance of the scientific basis of polygraph evidence and the reliability of polygraph tests, similar to that of one of its leading proponents, David Raskin. From there, having had occasion to study the subject in more detail, he came to a strongly contrary position. His analogy for expressing the problem with general acceptance of the polygraph within a certain academic or scientific community while it lacked real scientific justification, was graphic. He had originally likened polygraphy to tea-leaf reading but eschewed that analogy because that practice is not held in high regard by most people in the United States, especially educated people. The better analogy, he thought, was that of entrail reading in ancient Rome. As he expressed it, (at AT1585):

"... the reading of entrails to determine the outcome of important events like battles was considered by most in Rome to be admittedly controversial but a scientifically-based way of foretelling the future, and they relied on it in that way in exactly the same way as the polygraph is relied on by even educated people in North America and even organisations like the CIA and FBI to be a controversial but scientifically based way of telling the truth or telling honesty. In both cases the issue is one which is very important for the scientist so that people get to believe in any procedure even though when examined, using commonsense and logic like Cicero did in ancient Rome, it becomes clear that it's not a scientifically based procedure."

354 The criticisms of Professors Iacono and Furedy of many of the published studies relied upon by Mr Van Aperen and Professor Honts as showing high levels of accuracy and general acceptance of the polygraph, seem to us to be cogent. We have already referred to the criticism of Mr Ansley's report.

355 In substance, we are not satisfied on the evidence that polygraphic examination (specifically CQT) has been accepted to any appreciable extent as scientifically valid and reliable, by members of the psychological and psychophysiological community, (which we consider to be the relevant scientific community: see R v Jarrett [1994] SASC 4596(1994) 73 A Crim R 160) as to constitute part of a body of knowledge or experience which is sufficiently recognised to be accepted as a reliable body of knowledge or experience. Nor has it be shown to have a sufficient scientific basis to render results arrived at by the application of polygraphic technique part of a field of knowledge which is a proper subject of expert evidence.

356 Most of the publications of those arguing for the acceptance of polygraphic evidence appear in "peer" publications, but the "peer group" is that of other polygraph examiners who would appear to have a vested interest in the outcome.

357 The petitioner has failed to demonstrate a degree of publication in prestigious academic or scientific journals, or any other indicia, which might reveal a sufficient degree of recognition and acceptance of the technique, notwithstanding that it is controversial.

358 It was common ground between all the experts called that there is no overarching theory which can explain the CQT test. We do not accept Professor Honts' evidence that the lack of such a theory is problematic only for planning future research or for expanding the technique to areas beyond the research data base. Whilst those problems do exist, the absence of an underlying theory or rationale must strike directly at the claims that the technique is properly to be described as the product of scientific study and that it has a significantly higher degree of accuracy than chance. Furthermore, as a consequence, the CQT test is not specific and nor is it capable of being verified by repetition or replication in any scientific sense.

359 It is a fundamental assumption of the test that the autonomous responses measured by the polygraph machine are attributable to (and only to) an awareness by the examinee that he or she is lying. Yet that assumption is patently unsound. The evidence shows that such responses may be due to any number of factors, some within the cognisance of the examinee and others not, but in any case quite likely frequently to be incapable of observation or appreciation by the examiner. Such responses may be to either relevant questions or to control questions. So a marked response to a relevant question (because for example the mere allegation is extremely offensive or upsetting to an innocent examinee) would be likely to lead the examiner to score the answer as a lie. On the other hand, a guilty examinee who has habituated to the allegation contained in the relevant question (or who has adopted simple unobservable practical countermeasures to control questions (such as tightening his thigh muscles, curling his toes in his shoes, biting his tongue, thinking of things which make him angry or upset, to mention but a few of the numerous examples in the literature)) may respond less markedly to the relevant questions than to the control questions and so lead the examiner to score his answers as truthful.

360 The subjective nature of the CQT test process is manifest in the conduct of the pre-test interview and the formulation of the control questions, as well as the conduct of the "test" itself and the subsequent scoring of it. The subjective aspect at each of these stages must necessarily have a compounding effect which cannot lead to any confidence that CQT tests are capable of producing reliable, repeatable results.

361 We accept the evidence of Professor Iacono that numerical scoring of polygraph testing is affected by the subjective judgment of the examiner. He opined that as Mr Van Aperen was well aware the petitioner had passed Mr Glare's polygraph test Mr Van Aperen's test was not "independent" of Mr Glare's and his scoring was likely to be coloured by the expectation that the petitioner would pass.

362 This was the "Rosenthal effect" which in his oral evidence he explained has to do with the fact that as human beings we have a certain expectation that things are supposed to turn out a certain way and will conduct ourselves, perhaps inadvertently, to get the effect that we expect.

363 This effect was discussed by Knowles DCJ in Lee v Martinez (supra, at page 21):

"49. The Rosenthal Effect is a phenomenon that has been recognized in psychology for approximately thirty years. It recognizes that psychologists and scientists and others who have an investment in a theory are likely to unconsciously arrange an experiment in such a way that they get favourable results. It is the reason that it is necessary that test results need to be replicated by an independent researcher.



50. The Rosenthal Effect can affect an individual polygraph examiner because the hypothesis in an individual test involves the examiner's sense of whether the test subject is guilty or not. The examiner necessarily has access to the case facts and interviews the examinee in a pre-test interview. Based on the case information and how the interview develops – for example the examinee might seem truthful – it can affect the attitude of the examiner. The Court noted the following statement from Dr. Honts: 'In my experience in New Mexico in testifying before juries clearly indicates that, (the jury will make use of the polygraph as they see fit) and that they have decided to convict despite a polygraph that showed the person was truthful.' TT, 7/3/03, 114. the context of the statement and the observation of the witness led the court to conclude that Dr. Honts was invested in the outcome and that he was surprised that a jury could reach a different conclusion.



51. The risk of the Rosenthal Effect is exacerbated by the lack of standards in the profession."

364 We accept Professor Iacono's evidence that the result of the polyscore software scoring of Mr Van Aperen's CQT tests, that the "probability of deception is less than 0.01%" is simply indefensible. The NAS report found the software methodology to be "unscientific and flawed" and as Professor Iacono explains, it is not possible to diagnose or predict human behaviour with accuracy to four (sic) decimal places. Secondly, as he says, this probability statement means in effect, that for every 10,000 people tested under circumstances just like those under which the petitioner was tested, only one with a score like his would actually come from a deceptive person. There is no database to support such a conclusion. In fact, he says, if one took all the subjects studied in all the scientific research ever published on the accuracy of polygraph tests, one could not identify 10,000 confirmed innocent study subjects.

365 We apprehend there appears to be a view in some quarters that the polygraph machine itself tells whether or not the subject is lying. That view is possibly the result of deliberate assertions by polygraph examiners, part of whose technique involves seeking to convince the subject that the machine will detect any lie he or she tells. The purpose of this is to instil in the subject an apprehension about the consequences of lying, and so increase the autonomous response. This aspect has attracted the following comment from Freckleton and Selby (supra, Vol 1 – 1890):

"For its effectiveness, it has been suggested that polygraphy depends on implanting into the subject a belief in the infallibility of the machine and on the design of effective control questions. 'The whole fragrant stew of imposition, trickery and downright lying (by the examiner, not the subject) is reminiscent of a certain type of hard police interrogation of subjects whom the interrogators "know" to be guilty': Elliott (1982. pp 104, 108)."

366 One obvious difficulty with this approach is that for example, an innocent person who recognises a relevant question may produce a strong autonomous response because he or she is either afraid they may wrongly be shown to be lying, or simply because the mere allegation is upsetting. Be that as it may, we mention this only to make the point that it is important to be clear about the nature of the evidence sought to be led. It is opinion evidence. It is the opinion of the examiner that the subject is or is not lying.

367 Put shortly, the opinion is formed on the basis of the assumption that every person will provide an autonomous response when telling a lie, the examiner's formulation of the control and relevant questions, the readings actually recorded on the machine, a comparison of the responses to relevant and control questions and an entirely subjective assessment by the examiner of the significance of differences between the results.

368 Counsel for the petitioner put it that whatever may have been the state of knowledge and professional acceptance in the past, polygraphy has been the subject of continued development over the last 20 years or so to the extent that evidence of that kind ought now to be admitted. We do not accept that submission. To the contrary, the evidence (including that of Professor Honts) shows that the examinations conducted by Mr Van Aperen do not represent any improvement in the technique over what was available 10 or even 20 years ago, except in the area of the computerised statistical analysis conducted by the Polyscore software programme, which we are satisfied has been shown to be entirely unscientific and worthless. The polygraph evidence therefore cannot be said to be "fresh evidence" in that sense.

369 On the whole of the evidence of the other material before us, it has not been shown that the polygraph technique is a reliable method for determining truth or untruth and nor is there the degree of acceptance within the relevant scientific community which would indicate that it is seen as being so. That being the case the evidence of the polygraph examination would not have assisted the trier of fact (the jury).

370 We respectfully agree with the reasoning and conclusions of Knowles DCJ in Lee v Martinez, which we think reflect in large measure the conclusions to which the evidence on this appeal leads us.

371 There is insufficient basis to regard Mr Van Aperen's opinions as any more than expressions of subjective belief or speculation about the credibility of the petitioner with respect to self-serving statements made by him out of court.

372 The evidence would go beyond bearing merely on an issue relevant to the petitioner's credibility – it purports to present an opinion directly on whether the petitioner is truthful in his denial of the offence. That is for the jury to determine and given the lack of scientific support for the polygraph technique, they would not properly be assisted by the evidence of opinion based on that.

373 In our view, the polygraph evidence is not admissible and would not have been admissible on the petitioner's trial. That being so, the fact that Mr Hogan did not seek to lead at that trial was not an error, much less an error of the kind referred to in Knowles.

374 This ground must fail.

Conclusion – Appeal Dismissed

375 For the reasons set out above, it is our view that the appeal should be dismissed. However, there are also some observations about the conduct of the appeal, rather than its substance, which we believe it desirable to make.

The conduct of the petitioner's case

376 We have already raised, earlier, one limited aspect of the conduct of the petitioner's case which has been the cause of some concern to the court. There are two others we wish to mention. The first of our concerns finds an echo almost 30 years ago, in the reasons of the Supreme Court of South Australia in relation to another petition, that of Van Beelen. In In Re Van Beelen (1974) 9 SASR 163 at 251, the court said the following:

"Before parting with this judgment, we feel constrained to refer to the opportunities afforded to the petitioner's counsel, during the period of twenty-one days for which this Court was occupied in the hearing, to present the petitioner's case. Some may think that the time occupied, and the expense incurred, was out of all proportion to the nature and difficulty of the issues which properly arose for our decision, and that much of the argument received amounted to the extrapolation of a red herring. But whatever warrant there may be for such strictures, we simply say that we entered upon the hearing with the firm resolve that the petitioner's counsel was to be accorded every opportunity of arguing any submission which seemed to him worthy of presentation"

377 Save that this hearing occupied 22 days, the passage quoted is precisely apt to describe this hearing.

378 Although we too have acted in accordance with the resolve that the petitioner's counsel should be able to argue any submission which seemed to him worthy of presentation, it should be pointed out that such a course, however desirable fom the point of view of the petitioner, is not without cost. There is an obvious cost to the public, which pays for the Judges, court staff, and officers of the DPP, not only for the time occupied in hearing but in preparation and, so far as the Judges are concerned, in considering and deciding each point. There is the cost to the public of the time of those witnesses who are public officers, who are diverted from their ordinary duties to prepare for and to attend at the appeal. There is an emotional and sometimes financial cost to those other witnesses who are required to revisit events occurring many years ago, and to attend at court for what is sometimes lengthy cross-examination. There is a cost to all of those who could be regarded as victims of such an offence, generally the family and friends of the deceased, who have vividly put before them memories which one would hope the passage of time would be beginning to soften.

379 The power of the Attorney General to refer matters to this Court pursuant to s 140 of the Sentencing Act is a very important and necessary power, directed to ensuring that justice is done in an individual case and that public confidence in the administration of the law is maintained, by providing a mechanism for dealing with those exceptional cases where, notwithstanding a regular trial and an appeal, there is nevertheless reason for concern about a verdict. It would not be desirable to circumscribe in any way the power of the Attorney General to make a reference, or the circumstances in which it was open to him to do so.

380 However, it must also be recognised that there are potential difficulties with the procedure. Although, as we understand it, the normal practice is for the Attorney General to seek advice as to whether or not a petition should be referred, and although it is open to those advising him to make whatever enquiries and have regard to whatever material they see fit, it nevertheless in the general run of cases is only open to the Attorney General in a limited way to test the strength of any claims which might be made in a petition. Further, because the matter is to be dealt with as on an appeal, once the reference is made it is open to the petitioner to apply to amend in a way which may have little or nothing to do with the original grounds upon which the reference came to be made. It would therefore appear to be possible, for example, for a petition to be made, and for a reference to flow from that petition, based on grounds which are limited in compass and which perhaps may fairly readily be shown to be unsustainable. Nevertheless, because making the reference gives rise to the opportunity to issue subpoenas and to obtain additional information, even a reference limited in its original scope, or perhaps lacking in substance, would give rise to the opportunity to fish through a great quantity of material to see if anything can be found to support any additional grounds.

381 We are not suggesting that the present appeal was embarked upon as a fishing expedition, although it appears to have developed that characteristic. It does however illustrate some of the problems which it appears to us may arise from the procedure. In the present case, the only material in the petition which eventually found its way into the grounds of appeal as they appeared in their final form before us, were allegations relating to the unlikelihood of the wrench as the murder weapon, the evidence relating to the blue paint, the material relating to Dr Patchett's allegedly fresh evidence and a polygraph (although not the particular polygraph examination ultimately relied upon by the petitioner). As will be apparent from these reasons, it is our view that of those matters, only the issues concerning the wrench raise any serious matters for consideration. A large quantity of other material contained in the petition was abandoned by the petitioner, and even a cursory inspection of the petition suggests that the decision to abandon those matters was well made.

382 The myriad of other issues raised by the amended notice of appeal dated 18 August 2003 were added as the appeal progressed, some of them at a very late stage. Again, as will be apparent from these reasons, only a small number of those matters appear to give rise to serious issues.

383 The foregoing considerations do not bear upon the task of this Court in determining the matters which were raised by the final version of the notice of appeal. However, it seemed to us desirable to record some of the broader public interest issues which might be thought to be raised by the progress of this reference. The relevant authorities might at some stage wish to consider whether there is any value in amending s 140 of the Sentencing Act. It might be possible to arrive at some procedure by which some of the disadvantage and some of the public cost which we have identified which flows from this type of procedure could be limited, without unfairness to a petitioner. For example, we note that in his letter of 22 July 2002 to the petitioner's legal adviser, the Hon Attorney General requested a notice of appeal prepared "in conformity with the matters raised by the petition". In the present state of the law, it was not open to him to confine the hearing to those issues. Because of the relatively low threshold applicable to applications to amend in such a case, this Court was obliged to permit amendments which went well beyond the petition. Some statutory power in the Attorney General to confine the grounds pursuant to s 140(1)(a), or the prescription of a statutory test for amendment, appropriate to the situation where a petitioner has already had one opportunity to appeal, may be worthy of consideration.

384 We should also record briefly our other final concern, which is about the way in which the closing submissions on behalf of the petitioner were made. That concern relates to the raising for the first time in closing submissions of material which could not have been anticipated as arising from either the notice of appeal or from the manner in which the appeal was conducted on behalf of the petitioner. It has two aspects.

385 The first is that, as is clear from these reasons, a number of aspects of the petitioner's case were concerned with non-disclosure of material, largely by the police but as to one document apparently by counsel for the Crown at the petitioner's trial. That was always understood. However, in closing, the petitioner's counsel spoke for the first time not in terms of non-disclosure, but of deliberate concealment of material. The flavour of the closing submission was to the effect that there had been deliberate decisions made by a number of persons not to make material available to the defence, with the intention thereby of wrongly strengthening the prosecution case and depriving the petitioner of a fair trial.

386 Allegations of that kind were never aired prior to closing submission, and were not put to any of the witnesses to whom it might be thought that those allegations related. There was some cross-examination of some witnesses about their reasons for taking certain decisions – for example, for altering words of a statement – but it could not reasonably have been understood from that cross-examination that any such allegation was contemplated. It is not necessary to determine whether there was misconduct by any person, in order to dispose of this appeal. However, we do wish to record our view that it was improper to raise that issue at the time at which it was raised.

387 The other issue raised for the first time in closing submission in reply we understood to be a suggestion that there might be occasion for a reasonable bystander to apprehend bias on the part of the members of the Court hearing this appeal. It was submitted that it was a "matter of concern" which counsel submitted should be "ventilated but put to one side", that at the time of trial the then Director of Public Prosecutions was a person who had subsequently been appointed to this Court, being McKechnie J. It was submitted that "in other jurisdictions ... it may have prompted the court to call in outside Judges".

388 Senior Counsel appeared immediately to resile from the suggestion which had been made, saying " ... we place reliance upon your Honours' ability to act with judicial impartiality". However, the suggestion of bias was of concern to us, and has been carefully considered by us. An electronic search of the transcript of the appeal has been undertaken. It contains no mention of McKechnie J by name. It contains a number of references to the "DPP" or to the "Director of Public Prosecutions". Most of those references are plainly references to the office generally, so that witnesses would refer to material being provided "to the DPP" in the sense of being delivered physically to that office, without any indication as to the person to whom material may have been delivered.

389 Looking to references to the Director of Public Prosecutions personally, rather than generic references to the office, there appear to be two. One is in the context of some mild criticism about a failure to comply promptly or perhaps completely with a subpoena; that subpoena was clearly directed to the present occupier of the office of DPP. The other is in evidence by Superintent Shervill that he had had discussions with the then Director of Public Prosecutions about charging the petitioner with the killing of Mrs Lawrence. As we understand it, there is nothing in the materials before us which could be understood as suggesting that there was any impropriety, or even lack of judgment, in the decision to charge the petitioner, as opposed to criticism of the way in which the prosecution was conducted.

390 When one looks at the statement of agreed facts, which refers to material which was not disclosed to the defence, it seems clear that most of the material which was not disclosed was material which was in the possession of the police and was not disclosed to any person at the office of Director of Public Prosecutions. The material which was delivered to the office of Director of Public Prosecutions was a comprehensive summary of facts. In the normal course of events, one would have expected the prosecutor at trial, rather than the Director of Public Prosecutions personally, to determine which of the various materials available to the prosecution should be disclosed. There is no suggestion in any of the materials in this appeal that that usual course was departed from.

391 The result of our consideration of those issues is that it is plain that the suggestion made during the course of closing, that it was possible that the matters raised during the course of this appeal could reflect adversely on the then Director of Public Prosecutions personally, was simply factually incorrect. It was never a question appearing to arise on the face of the grounds of appeal. Of course, in a very broad administrative sense, any falling short of the standards required of a prosecutor, or any error or omission in the conduct of a prosecution, is in one sense the "responsibility" of the person whose duty it is to supervise and guide those prosecutors. Criticisms of that kind are routinely made in criminal appeals without it being thought by any person that they are inappropriate for determination by this Court. We do not however understand the submission made on behalf of the petitioner to be concerned merely with that abstract level of responsibility.

392 We would conclude with the observation that, had the submission made on behalf of the petitioner had any factual foundation - that is, had it been reasonably open to suggest that there may have been a cause for concern in relation to the question of bias – Senior counsel for the petitioner would have been failing in his duty to his client and to this Court in failing to raise it prior to the hearing of the appeal, at a time which might have permitted the making of some alternative arrangement. His raising it for the first time in closing submissions in reply (even if only to immediately step back from it), was not only pointless but improper.

Appeal dismissed

393 It is the order of the Court that this appeal be dismissed.