Mp gives speech in Western Australian Parliament concerning Andrew's wrongful imprisonment

The MP MR J.R. QUIGLEY, without whose help we would never have been able to get back to the Court of Criminal Appeal, made a speech to the Parliament here in WA - he raised some issues of concern calling for an inquiry before the Corruption and Crime Commision. We are pleased to know that his call was heeded and the Commission will be looking into the miscarriagee of justice that occurred by suppression and omission of evidence in Andrew's trial. Below is the speech from Hansard-

MR J.R. QUIGLEY (Mindarie) [3.02 pm]: In speaking on the appropriation bills, I want to address a matter of public importance that flows from the High Court decision delivered on 15 November in the case of Mallard v The Queen. I have had three years’ involvement in this case. I became involved in this case on a bipartisan basis. I had had no previous contact with Andrew Mark Mallard until I was approached by members of the media who had concerns about how the case had been run and who asked me, as a member of Parliament, with the special skills that I have, whether I would look at it. I was also approached by my former parliamentary colleague, and friend, the former member for Dawesville, Mr Arthur Marshall, one of whose constituents was Mallard’s mother. Therefore, in a very bipartisan way, I have been working through this case.

On 15 November 2005 the High Court ruled by unanimous judgment that everything that had transpired in this case in the past 10 years in the Supreme Court of Western Australia had been an error and a miscarriage of justice. Hundreds of thousands of dollars have been wasted by the court, and by the investigating authorities, on this case to date. Andrew Mark Mallard is currently in prison as a person charged with murder, but presumed to be innocent, having never been convicted in his life of any offence of violence.

I will give the house some of the background of the case. On 23 May 1994 Pamela Lawrence was beaten to death in her jewellery shop in Glyde Street, Mosman Park. A police investigation ensued, led by the major crime squad. The supervising officer was Detective Sergeant Shervill, and the principal investigator was Detective Constable Caporn. They were assisted by Detective Constable John Brandon and Detectives Emmett and Carter. The murderer left no clues at the scene, which was awash with blood; it was a gruesome scene. More than 130 persons of interest were interviewed. One was Andrew Mark Mallard, who was in Graylands Hospital for a minor mental infirmity related to bipolar disorder. He could not give a proper account of his whereabouts on the particular night and said that he had been looking hither and thither for marijuana. His alibis did not stack up; he could not give a proper account of himself.

On 10 June he was in Graylands Hospital for assessment after the courts had remanded him on a petty stealing charge. On 10 June he had been brought back to the Central Law Courts. The psychiatric report was that he did not need to be incarcerated in Graylands and that he had a mental problem that required his voluntary attendance as a day patient to receive medication. He was then released from the court and taken by Detective Constable Caporn to an interview room, where he was interviewed for eight hours. He was lured to that interview room on the pretext that his clothing, which had been seized while he had been in Graylands, would be returned. The interview room was a video interview room. At that stage, the Parliament had passed laws that required all police interviews to be taped. The taxpayers had provided funds for interview facilities but the Governor had not signed the legislation. Mallard, a mentally infirm patient, was taken to the interview room, where two detectives interviewed him for eight hours. Before they commenced the interview they made sure the record button was turned off so that there could be no record of the interview. This circumstance was commented on adversely by the High Court, which said that the interview should have been recorded. During the interview, Mallard, who, as I said, suffers from a significant mental infirmity, but who was not insane, offered theses on who could have done that murder and how they could have gone about doing the murder. At the end of the eight-hour interview, a tussle took place between Mr Mallard and Mr Caporn. Mr Mallard’s story was that he was attacked by Mr Caporn, and Caporn said that he was the victim of an attack by Mallard. In any event, Mr Mallard was charged with a minor assault and admitted to bail. It is remarkable that the police let him loose on the streets of Fremantle given they thought he had confessed to murder.

He remained at large for the next seven days until he was arrested by Detective Bandham the following Friday morning. He was taken back to the major crime squad and interviewed again for a further three hours, with the record button turned off so that no record could be made of the interview. At the end of that time, it was turned on for 15 or 20 minutes maximum while they recorded a short interview, during which Mr Mallard advanced his hypothesis for how the murder could have occurred, but repeatedly said, “But the murderer is not me.”

The matter went to court. The High Court noted that very significant parts of the evidence were not disclosed or were suppressed by the police and the prosecution. In his judgment, Mr Justice Kirby lists some of the most significant parts. I refer to page 16 of the judgment, from paragraph 56 onwards. Most importantly, while he was hypothesising how the murder could have been effected, Mr Mallard said the killer could have used a spanner, and thereupon drew a 12-inch Sidchrome wrench. The police asked a state pathologist to undertake a test to see whether the Sidchrome wrench could have inflicted the murder injuries. The police took the spanner to Dr Clive Cooke, who acquired a pig’s head and tried to replicate the injuries using a Sidchrome wrench. He reported back to the police that the wrench could not produce the injuries that were seen on the deceased.

That was contained in a report that had been prepared by Detective Sergeant Shervill, the head of the investigation, and attended upon by the then Director of Public Prosecutions, Mr John McKechnie, QC, to explain the difficulties in the case. I have a copy of a letter with me written by Detective Sergeant Shervill to Mr John McKechnie, QC, in which he says that on 19 July 1994, Detective Inspector Lane, Detective Sergeant Caporn and he attended on Mr McKechnie’s office to conduct a briefing on the outcome of this investigation and explain that there were difficulties in the investigation. Detective Sergeant Shervill was asked to submit a report on this matter, which he did on 21 October 1994. That report also detailed that the forensic pathologist was of the view that the wrench could not have caused the injuries. The report also makes some other startling revelations, including that Mr Mallard thought he was at large during the week he was out on bail, but was, in fact, in police company. The report of the police notes that Mr Mallard had become increasingly dependent on other people to provide for him; that he was becoming increasingly dependent on cannabis; that he was wearing a Scotsman’s kilt; and that he was carrying out spiritual rantings. In other words, he was psychotic and unreliable. Prior to trial, the letter had been directed to the prosecutor, Mr McKechnie, QC. He had received the letter and it was part of the file. A prosecutor was assigned to prosecute the matter in the Supreme Court; that was Mr Ken Bates. At no stage during the trial did the police or Mr Bates mention the forensic evidence that the wrench referred to in the prosecution was inconsistent with the weapon used to inflict the injuries found on the head of the deceased.

I said that a lot of money has been wasted in the courts on this matter over 10 years; indeed it has. The last decision of the Court of Criminal Appeal, presided over by Mr Justice Parker - as he then was; he is now retired - was an aberration. The best thing that can be said about it is that the High Court said that 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; in other words, the court had not performed the function that it should have performed but had, instead, speculated. Mr McCusker, QC, the counsel appearing before the court, has already publicly noted that he could not believe the hostility he received from that court from the time he stood to speak. That was the last hearing before the Court of Criminal Appeal.

This matter has been litigated before four other judges. Have they not done their job? I have read headlines and articles criticising our learned Chief Justice, Hon David Malcolm. I do not support those headlines. I note that Chief Justice Malcolm had to abort a trial in Fremantle to give the accused person a fair trial, as he had made an error in his charge to the jury. What more could our Chief Justice do? It was a strong decision and it was the right decision. However, he led the Court of Criminal Appeal that also affirmed Mallard’s conviction. What happened? He was led astray, as was the trial judge, the Acting Chief Justice, Mr Michael Murray. They were led astray by the suppression of evidence the police had. The police must have known - I say the police did know - that if the evidence went before the court, there was a real chance that the prosecution case would fail. Mr Justice Kirby, in his judgment, refers to some of that evidence. First, there was a witness, Katie Barsden, who was in her grandmother’s car driving past the murder scene at 5.02 pm on the day of the murder. She happened to look into the Flora Metallica shop where the murder occurred, as it was the shop of her mother’s friend. She noticed a strange man in there. When she sighted the strange man, he ducked down. She went home and told her mother and her mother said that she had better draw a sketch of the strange man she saw and describe him. She therefore drew a sketch of a man who had a beard and a bandanna and she said he was about five feet 11 inches or six feet tall. We know that Mallard was six feet eight inches tall, he had been released from the lockup that day and did not own a bandanna. What did the police do prior to trial? Prior to trial they went back to Katie Barsden and had her change her statement and excised - in the words of Mr Justice Kirby - from that statement the sketch she had made of the person she saw in that shop. Why did the police do this? The obvious inference is that the sketch she made was inconsistent with the person whom the police were charging with murder. Justice Kirby also referred to the missing cap. Ms Barsden said that the person she saw in the shop was wearing a gypsy bandanna. In the interviews during which Mallard was said to have confessed by using third party words, such as the killer would have done this or that, the police had him say that the killer would have worn a cap backwards, which could have been mistaken for a bandanna. At that time the police knew that Mallard owned a peaked cap of an orange-gold colour that had a distinctive pattern around its edge. Once they had taken the description and sketch out of Ms Barsden’s statement, they were still left with a problem. Mr Mallard stayed from time to time with Michelle Engelhardt. In her statement made two days after the murder, Ms Engelhardt said that Mallard’s cap was hanging on a hook on the back of a door in her home. What did the police do then, as Justice Kirby and the High Court noted? The police went back to Ms Engelhardt’s and re-did a statement for her taking out a reference to the cap being on the back of the door. That meant that a jury could conclude that the cap was on Mallard’s head at the time of the murder.

I sympathise with the trial judge, Acting Chief Justice Michael Murray, because hot questions of law were put before him. One such question was the issue of identification. A string of High Court cases outline what a judge must do to warn a jury in certain cases of identification. Does anyone in this chamber not think that it would have been highly relevant for Justice Murray to have had before him the evidence that Ms Barsden had made sketches on the day of the murder that were inconsistent with the accused who was in the dock before him?

Another question that was put before the court was whether this mentally infirm person was fantasising, as bipolar people do, when giving his version of what the killer may or may not have done, or whether he was telling the truth. The state forensic psychologist at Graylands said Mallard was prone to fantasising. One issue was that the murder scene was awash with blood. The police had seized Mallard’s clothes. He was a vagrant and had only one pair of shoes and a pair of trousers. Those items were subjected to forensic tests, which determined that there was one spot of blood on his shoe from when he had cut his finger some days before. Not a molecule of blood or evidence connecting him with the murder scene was found on any other part of his attire. The police questioned Mallard on why the murderer would not have had any blood on his jeans. Mallard advanced the theory that the murderer would have thrown the wrench off the Fremantle traffic bridge and would then have gone into the salt water under the bridge - the river water at that point is salty - to wash his jeans, because it is known that that mucks up forensic testing for blood. The police knew that the question of whether Mallard was fantasising was a hot issue. To demonstrate this point, I quote from page 30 of Detective Sergeant Shervill’s report -


Furthermore, the rambling admissions made by the accused during interview left doubt in the minds of some investigators as to whether the accused had in fact murdered Pamela LAWRENCE.

Many of the police involved in the investigation were not convinced that he was the murderer. On the basis of the theory that Mallard had offered, the police asked the state chemical laboratory to test the clothes for not only blood but also traces of salt water. It had been raining on the night of the murder, so the police asked the laboratory to also provide an opinion on whether rain could have washed any residual salt out of the jeans. The chemical laboratory reported that the jeans had never been immersed in salt water. There was no blood on the shoes, no blood on the jeans and the jeans had never been immersed in salt water. That evidence would have heavily militated against Mallard’s so-called confession being regarded as true and would have supported the idea that he was offering a hypothesis to the police to help solve the murder. What did the police do with this evidence? They went straight back to the government chemical laboratory.
[Leave granted for the member’s time to be extended.]

Mr J.R. QUIGLEY: As has been noted by the High Court, the police successfully asked the Western Australian Government Chemical Laboratories to remove from its report any mention that no salt was found in the jeans. The Government Chemical Laboratories complied. That is a further area of evidence that had been removed from the court. What the police did in this case, in a very real sense, was hijack the process of justice. If anything in the brief did not fit with their theory that Mallard was the murderer, they simply went back to witnesses and got them to change their statements.

I read in the paper a explanation proffered by the current Director of Public Prosecutions, Mr Robert Cock, that he would prefer to think that this was all an oversight. I think he was referring to the non-disclosure of Detective Sergeant Shervill’s report, when he said that he preferred to think that this was an oversight. If it was not an oversight, then it may well have been the crime of attempting to pervert the course of justice. It is little wonder that the Director of Public Prosecutions would prefer to think it is an oversight. That does not really wash, does it? It cannot be a real oversight when police have had to revisit witnesses time and again to get them to change a story so that they could convict Mallard. That is not an oversight; that was a lot of hard work involving organisation by a lot of people.

I have named a lot of people. At this point I hasten to add this: although I could go through all these documents and trace out to the Assembly who did what, time in this debate does not permit. I have to recognise and say most strongly now that I presume all those people I have named to be innocent. They are entitled to a presumption of innocence, just as Mallard is entitled to a presumption of innocence. Mr Caporn is entitled to a presumption of innocence that he did not pervert the course of justice; the same as Mr Mallard is equally entitled to a presumption of innocence that he did not kill Pamela Lawrence.

Where to from here? I do not know whether these judges get furious, but the Chief Justice and the Acting Chief Justice have every right to be furious that they sat in a court and under their hand signed a warrant committing this man to 30 years’ imprisonment, when they were not to know that the crucial evidence in this case had been withheld. They were not to know that the police view of the Acting Chief Justice of Western Australia, the police view of the Chief Justice of Western Australia and the police view of the Supreme Court of Western Australia was that they could not be trusted with the truth. That was the police view. They had excised very, very important evidence from this brief. The poor judges - not the last Court of Criminal Appeal that got it wrong, but the other four judges - all thought they could trust the police to put before them a full and fair view of the evidence. It is clear from what the High Court said and what has actually happened, that the police hijacked the course of justice and repeatedly deceived the judges of the Supreme Court into thinking that they were getting a full and fair view of all the available evidence, which most certainly they were not. Even if there has not been by someone, by persons unnamed, an attempt to pervert the course of justice, there certainly has been a concerted course of action over many months to deceive the Supreme Court.

When this matter came on and I got on to some of this because of my experience in police matters - I think that is why the journalists chose to come to me - I uncovered the first of the secreted evidence, the report of Detective Sergeant Shervill. I had a discussion with the Attorney General, who said that he had had a discussion with the Director of Public Prosecutions and the file would be open to me. Once we got hold of the first damning revelation that serious evidence was withheld from the court, the curtain went down and we could not get any more documents from the Office of the Director of Public Prosecutions. I would like to inform the Attorney General of that - I have not done so previously because I did not want him to interfere. I wanted to litigate this properly at arm’s length from my colleague, the Attorney General.

We then wrote to the Commissioner of Police asking for access to certain documents and that was refused. We then had to subpoena the Commissioner of Police. We went to the Supreme Court and he resisted the subpoena and did not want us to see the documents. This was in 2002 and 2003. Therefore, as recently as 2002 and 2003 the police were still trying to hide those documents that the High Court relied upon to say that there had been a miscarriage of justice. The police did not want the truth to come out. In fairness to the current Commissioner of Police, I must say that the subpoenas are issued to the Commissioner of Police, but he often delegates a subordinate. Whoever has been responsible for this, I call upon the Commissioner of Police, today or tomorrow, to distance himself from this shoddy effort in 2002 and 2003 to try to hide documents from the Supreme Court that would have proved that there had been a miscarriage of justice. This is a matter of the utmost importance because, as I have said, Supreme Court judges have been misled.

Where do we go from here? I reveal that -

The DEPUTY SPEAKER: Would the member take a seat for a moment? I know the member is working up a head of steam. I want to state that in this house we take the matter of privilege quite seriously. I urge the member to keep that in mind as he continues his remarks.

Mr J.R. QUIGLEY: I shall do, Madam Deputy Speaker. That is why I said, in respect of everyone, that I just bring the facts forward and presume all those people to be innocent. I am not accusing anyone of having committed a crime. I am bringing the facts forward and saying that we have an issue of very hot public importance in Western Australia. I believe, and I know that several Queen’s Counsel to whom I have spoken believe, that there has been, in the course of the conduct of the investigation and the trial of Mallard, an attempt to pervert the course of justice. Who is responsible for that crime is yet to be seen. I have already urged a presumption of innocence in relation to everybody involved. It is for others to find out the detail of what happened. How should it be found out? I am aware that Mr McCusker, QC, has written to the Director of Public Prosecutions, asking him to investigate the matters as either an attempt to pervert the course of justice or a conspiracy to pervert the course of justice. However, a problem arises, because one of the prosecuting staff involved is now the Deputy Director of Public Prosecutions. Another is a Supreme Court judge. Is it right that the Office of the Director of Public Prosecutions should now take over this investigation on behalf of the community? I do not think so. I do not think that would be a transparent and proper investigation after all that has transpired to date.

Mr D.F. Barron-Sullivan: Is this a matter for the Corruption and Crime Commission?

Mr J.R. QUIGLEY: I was just going to come to that. The other matter is if it goes to the police. Former Detective Sergeant Shervill and former Detective Constable Caporn are now, of course, assistant commissioners who sit around the command table. How could it be properly investigated by the police department when all the people who are involved - Mr Brandon is a superintendent - now sit around the command table? Mr McCusker, QC, has suggested to the Director of Public Prosecutions that perhaps the CCC is the appropriate place. The member for Leschenault, my colleague on the other side of the house, was right on the money when he nominated the CCC as the right avenue through which this matter should be investigated.

Obviously, I am a little nervous about having to raise this matter. I do so as a matter of public duty. I am aware of the privilege of the house and that it should not be abused. That is why I have asked everyone to respect a presumption of innocence. However, a serious crime has been committed; and if a serious crime has not been committed, at least serious misconduct has happened, with both police and prosecutors actively misleading the Supreme Court on a major matter by suppressing evidence. As I stand in this place it is my call - I do not know whether I am joined in that call by the member for Leschenault and by others - that this matter should be investigated as quickly as possible and taken over as quickly as possible by the CCC. I know that will present problems, because the prosecutor’s wife is now the counsel assisting the CCC. However, there is no reason that the CCC cannot bring in an independent counsel of high repute to assist it in that inquiry.

There has been a lot of public comment on this case in the media over several days. The way in which this case was dealt with in the court has the capacity to undermine the community’s confidence in the justice system and in Supreme Court judges. However, as I have pointed out, the Supreme Court judges were hopelessly misled by the police and prosecution service, which suppressed evidence. I worked in this area for 28 years before I became a member of Parliament and I have never seen the likes of it. I am sure that all members of this chamber followed the police royal commission that was held for more than a year. Nothing like this ever came out during the royal commission. A man has been in jail for 11 years and the High Court has said it is because the police and prosecution suppressed evidence. This throws a great big question mark over the credibility of senior police in this town at a time when we as a community must place more and more trust in them because of the powers vested in them by the terrorism laws. The assistant commissioner in charge of the terrorism laws was one of the investigators involved in the Mallard case. Although there is a presumption of innocence, I am sure that all members share my concern about how people at the highest level in the police department have been conducting themselves.

I will join Mr McCusker, QC, and Mr Mallard’s family and hopefully the member for Leschenault in recommending that the Corruption and Crime Commission take over this case as a matter of urgency. Now that I have been speaking about this matter, it will be reported and read on the Internet. Papers exist in the police department that will further prove the untoward activities that occurred during the course of the investigation. I will be happy to inform the Corruption and Crime Commissioner of our suspicions in that regard. I urge the Corruption and Crime Commissioner and the Commissioner of Police to get together as a matter of urgency to secure the Mallard file in the police department. I am not trying to affect the prosecutor’s decision whether or not to retry Mallard; this is a separate issue. In any event, a future jury is entitled to know what the outcome of this investigation is and how far the police have gone on previous occasions to suppress evidence. It is imperative that the CCC and the Commissioner of Police become involved immediately to take away the Mallard file from certain officers at the police department and to secure and quarantine it. As I have said, subpoenas were issued against the Commissioner of Police to produce documents to the appeal court. All efforts were made to resist the presentation of those documents to the court and were presented only under order of the court. When they were presented, the High Court used them to say that it was a matter of non-disclosure and suppression of evidence. The High Court noted that it did not know how much of the suppressed evidence had been shown to the Director of Public Prosecutions. It was not the High Court’s job to find out how much the police had told the DPP, and so it did not go down the path of culpability. That is the path the CCC should embark upon at the very earliest opportunity. I thank you, Madam Deputy Speaker, and other members for giving me time to raise these important matters before the Legislative Assembly.