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Wednesday, 28 October 2009

Award for Mallard Inquiry lawyer and journalist

Lawyers Weekly reported today that lawyer John Quigley and journalist Colleen Egan received Australian Lawyers Alliance Civil Justice Award for 2009, for their work contributing to Andrew Mallard's release.

His case is a strong example of the need for an independent judiciary, legal profession and critical media.

Mr Mallard appealed to the High Court against his conviction before the Supreme Court of Western Australia. The High Court considered Mr Mallard’s conviction was unsafe for a number of reasons, and quashed it. The case is reported at Mallard v The Queen 2005) 224 CLR 125.

One reasons his conviction was quashed was because the prosecution failed to disclose evidence to Mallard.

The prosecution case was:
  • Mr Mallard killed Mrs Lawrence when he beat her about the head with a Sidchrome wrench
  • The killer was splattered with blood
  • Mr Mallard washed his clothes in a nearby salt-water river, accounting for the lack of blood on his clothes
  • It was raining heavily that day, and the rain washed the salt-water from his clothes
  • Mr Mallard was seen at the scene, identified by a distinctive hat he wore
  • The murder weapon was never located, but the prosecution relied on a sketch of a wrench made by Mr Mallard when the police interrogated him. (Notably, much of the interrogation was not tape-recorded! That created another controversy, because Mr Mallard disputed making the alleged confessions.)

When the case went to the Western Australian Court of Appeal, and the High Court, it turned out that:
  • Forensic tests (striking a pig’s head with a wrench) established positively that a wrench like that drawn by the appellant could not have caused the wounds suffered by Mrs Lawrence
  • Further tests showed the defendant’s clothes would have had salt water in them if washed in the river where alleged by the prosecution, but the clothes didn’t have any salt residue in them. The police requested removal of this information from a written report given to the appellant
  • Further tests showed the rainfall could not have washed the salt out of the defendant’s clothes
  • A witness made a handwritten statement in the days after the murder, saying the defendant’s distinctive cap remained on a hook in her apartment on the day of the murder. Reference to this was removed in a subsequent typed statement given to the appellant
  • Various witness made statements of identification, describing a person whose appearance seemed to be different from that of the appellant.

None of this was disclosed to the defendant.

The judgment of Kirby J (agreeing with the majority), at [45] – [94], covers these issues in detail. It makes for a good summary of the obligations of disclosure on the prosecution.

The High Court ordered a retrial, but the DPP later decided not to proceed with the prosecution. A Corruption and Crime Commission inquiry was setup into the saga (report available here), and Perth's Sunday Times ran a blog covering the inquiry.

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