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.

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.