Prosecutor fined and reprimanded for unsatisfactory conduct in the Mallard case … Notorious WA stitch-up by police … Administrative Tribunal finds prosecutor's conduct "inadvertent" … Failure to disclose evidence … No reasonable evidence to support DPP's submission about murder weapon
Ken Bates: unsatisfactory
A REPRIMAND, a $10,000 fine and $3,500 in costs were the penalties for Perth prosecutor Ken Bates after the WA State Administrative Tribunal pinged him for unsatisfactory professional conduct.
In his 1995 prosecution of Andrew Mallard for murder Bates had fallen "substantially short of the standard of professional conduct observed by competent and reputable lawyers".
Bates failed to disclose evidence, failed to determine whether there was a reasonable evidentiary foundation to support a material submission of fact, and failed to lead crucial evidence.
Bates and Legal Profession Complaints Committee put an agreed statement of facts before the SAT. The tribunal accepted that none of these shortcomings in the conduct of the prosecution was "deliberate".
Mallard served almost 12 years for a murder he did not commit. His case was one of the most appalling landmark injustices incubated by the notorious WA criminal "justice" system.
In a judgment scathing of the WA Court of Appeal the High Court in 2006 quashed Mallard's conviction and ordered a new trial.
Mallard was suffering a psychiatric disorder when he was interviewed by the police in connection with the murder of Perth jewellery shop owner Pamela Lawrence. He made some strange admissions which he withdrew. He spoke in the third person, attempting to describe what the attacker had done at the crime scene, and saying Mrs Lawrence had been hit with a wrench. He sketched for police the outline of a metal wrench.
Many of Mallard's statements were inconsistent and his descriptions of the murder scene and the premises were inaccurate. His interviews were not videotaped.
The police forensic experts had also conducted an experiment with a pig's head, striking it with a copper anode, which had been found in a shed at the rear of the premises, and a plumbers' wrench.
The chief forensic pathologist Dr Clive Cooke, concluded that neither the wrench nor the copper anode could have caused the injuries to the victim.
Before the trial Bates spoke to one of the investigating police, a detective sergeant Brandham. He took notes of the conversation:
"Spanner drawn - doesn't match injuries. Blue copper - in the wounds."
He also spoke to Mrs Lawrence's husband, who thought, but wasn't sure, that a spanner or wrench may have been missing from a shed at the back of the shop.
He also had a pre-trial conference with Dr Cooke, but didn't show to the forensic pathologist Mallard's sketch of the wrench or ask whether it could have caused the victim's inures.
Justice Michael Murray ruled that Mallard's confused and contradictory police interviews were admissible at the trial.
At the trial Bates opened with the contention that the wrench was the murder weapon, which Mallard had obtained from the shed at the back of the victim's property.
By the time of the trial the murder weapon had still not be located.
Bates failed to "review all the information", independent of Mallard's confused statements to the police, that supported his proposition that the wrench was the murder weapon.
He also failed to explore whether there was any further evidence that needed to be disclosed to the defence.
He didn't question the forensic experts about whether the wrench could have been the weapon or Mr Lawrence about whether the wrench in the sketch could have the the same as the one he though might be missing.
He did not tender any document or lead any evidence from any witness, independent of Mallard's statements to police, in respect of his claim that the wrench was the murder weapon.
Beyond the proposed consent orders, Bates supplied a statement to the tribunal seeking to explain how he failed to disclose and review the evidence.
Justice J.A. Chaney, Judge D.R. Parry and Ms S. Gillett accepted that Bates' failures were "inadvertent".
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Andrew Mallard: framed
A REVIEW of the police and prosecution conduct conducted by retired NSW Supreme Court Justice John Dunford for the WA Corruption and Crime Commission in 2008, was less certain that Bates' misconduct was inadvertent.
The prosecutor's failure to ask any questions of Dr Cooke about the wrench or put the drawing to him was regarded by Dunford, as a "fundamental error", which he had trouble accepting as an accident or oversight.
Dunford's report was also critical of the police investigation.
In original statements by witnesses the person they described as the suspect could not have been Andrew Mallard.
In the final version of their statements the case against him had been strengthened.
Dunford found the changes were brought about 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."
This constituted misconduct on the part of detective sergeants Malcolm Shervill and David Caporn who, by the time of Dunford's report, were assistant police commissioners. Both were stood down and later resigned, thereby avoiding disciplinary proceedings.
Mallard's appeal to the WA Court of Appeal and a special leave application to the High Court were both dismissed.
Later a clemency petition to the Court of Appeal from the attorney general also was rejected.
The DPP opposed the clemency appeal, even though by then the prosecutors knew evidence had been withheld at the trial.
The judges, Kevin Parker, Christine Wheeler and Len Roberts-Smith, made a hash of the appeal.
They were unmoved by the pig's head test that showed the murder weapon was not the wrench.
They rejected evidence about Mallard's mental health, saying it was not "fresh", and they ruled inadmissible polygraph tests favourable to Mallard.
They also rejected other evidence that showed Mallard could not have washed blood off his clothes in the Swan River. There was no trace of blood on Mallard or his clothes.
Finally, they said it was "improper" of the defence to submit that the police deliberately withheld evidence.
In November 2005, the case was back before the High Court.
Gummow, Hayne, Callinan, Heydon and (separately) Kirby agreed there had been a miscarriage of justice.
They quashed the conviction and ordered a new trial, saying:
"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."
In February 2006, the DPP decided to discontinue the prosecution.
Following a cold case review, the police found that the person most likely to have killed Mrs Lawrence was Simon Rochford, then in jail for murdering his girlfriend.
On May 18, 2006 Rochford was named on the evening TV news as the new suspect in the Lawrence case. The following morning he was found dead in his cell, apparently from self-inflicted wounds.
In 2009 Bates received a $381,791.30 payout plus leave entitlements when he resigned as second-in-charge of the office of the DPP.
Sources ...
State Administrative Tribunal: Legal Professional Complaints Committee v Bates
Justinian: Pig's head
WA Court of Appeal: appeal by reference from the attorney general
High Court: Mallard v R
Corruption and Crime Commission: executive summary of Dunford report