Andrew Mallard has been languishing in Western Australia's highest security
prison for almost ten years for a murder he didn't commit.
He was supposed to have bludgeoned a popular mother-of-two to death with
a blunt object.
Yet there is compelling evidence to show that he did not commit
this murder. There is not a strand of DNA or drop of blood linking Andrew to
the scene and
a key piece of evidence about the possible weapon was kept from the defence.
There were other suspects the police chose to ignore.
42-year-old Andrew Mallard
spends his days locked up in Casuarina Maximum Security Prison because of the
events over ten years ago when on the stormy afternoon
of 23 May, 1994, Pamela Lawrence was bludgeoned to death as she closed up her
jewellery store in the leafy suburb of Mosman Park, a suburb in Perth, Western
Australia. The attractive and creative businesswoman, who was popular in the
area and appeared to have no enemies, was killed with a blunt object in a frenzied
attack. Police and forensic experts were shocked by the extreme violence of
the crime. Puzzled by an apparent robbery in which no cash or jewellery were
detectives were immediately under pressure to solve the case.
the son of a British Army Staff Sergeant who'd recently returned to his adopted
home in Perth from a trip to the UK, was one of 136 men around
the area on the initial witness list. He bore a vague resemblance to an identikit
picture and was staying in nearby council flats where many of the unemployed
hung around and smoked dope. Something of a Walter Mitty, who lacked self-esteem
and never felt he could live up to his father, Andrew would tell people his
name was "Andre" and he was a rock star from London, or an undercover
detective for MI5. He had no record of any violence but had become known to
small-time and petty offences. Unlike most of the others on the suspect list,
he had no prove-able alibi for the time of the murder.
As the police came under
more and more pressure to solve the crime, with television news reporting every
night on its apparently senseless and extremely violent
nature, they interviewed each suspect without a solid alibi. They interviewed
Andrew several times at Graylands psychiatric hospital where Andrew was receiving
treatment for a bi-polar disorder. They were unsatisfied with his confused
recollections of where he was on the day of the murder. As soon as he was released
hospital, detectives convinced him to come alone to an interview room. There,
with two detectives, Andrew kept telling them he knew nothing of the murder,
had never met Pamela Lawrence, but they kept insisting he must know something.
They showed him photographs of the wounds and helped him draw diagrams of the
jewellery shop. They kept him for eight hours - sometimes cajolling, sometimes
threatening and forcing him to strip naked - and then released him into the
night. A full week later, after other leads dried up, they pulled him in again
Appealing to his Walter Mitty character, they encouraged him to tell
them what he thought the killer did and help them solve the crime. The result
was a video
interview lasting 20 minutes, in which Andrew states that he wants to clear
his name and then the police say he "confesses" in the third-person. "He
would have done this" and "The killer must have done that".
conjecture", he says at the end of the video.
More than a month later,
with Andrew back in Graylands psychiatric hospital, the police arrest him for
the willful murder of Pamela Lawrence. They claim
that the hours and hours of unrecorded interviews - conducted in a room with
facilities that were conveniently switched off - were actually confessions.
The detectives' notebooks - unsigned or witnessed - were filled with statements
was supposed to have made, with information "only the killer could have
known". (And the police, of course.) They found no weapon, they found
no blood on Andrew, they found no DNA from Andrew at the scene. But the police
he had "confessed".
1994 When the murder was committed, in May 1994,
it was legal for detectives to take down statements or “confessions” in
their notepads and have their unsigned contents admitted into court. By the
time of the trial, in 1995,
a law had been passed in parliament stating that these confessions were unsafe
and could not be relied on. However, as the legislation had not been ratified
by the Governor, the so-called "confessions" were allowed in - virtually
unchallenged. Andrew's legal aid lawyer struggled with the complex case and
even conceded that he needed a senior counsel to help him - but the judge refused.
The trial rolled on and the jury - who were not even given alternative theories
by the defence - had little choice but to convict.
By the time another lawyer
got hold of Andrew's case for an appeal, in 1996, the video confession legislation
had become law - but it could not be backdated.
Despite acknowledging that this case hinged on confession, and confession alone,
the Supreme Court appeal judges could not see a reason for detectives to lie
and dismissed the prospect that they may have. The High Court judges said that
since the legislation about unrecorded confessions was now in effect, there
was no point of law for them to examine. Andrew's legal avenues closed.
the appeals had failed, Andrew Mallard coped in the only way he could. As murderers
and rapists around him rioted and attempted to burn down the prison,
Andrew went "inside himself" and refused to even communicate with
his family. He had always protested his innocence - reporters recorded his
of having "the wrong man" to the judge as the sentence of life imprisonment
was passed - but now he had lost all faith and hope. The prison records show
a quiet and withdrawn inmate. The only record in his disciplinary file illustrates
his thoughts: Prisoner Mallard found cutting out the MOJ (Ministry of Justice)
emblems from his towels. Prisoner says he will continue to do so until we believe
he is innocent.
Outside the prison, Andrew's family refused to give up. His
father, Roy, used his military discipline to go through every word of transcripts
to prove his son's innocence. His mother, Grace, and his only sister, Jacqui,
watched as Roy blamed himself for Andrew's predicament and, after a couple
of years, succumbed to cancer. Alone after Roy's death, with Andrew refusing
take their visits or to even believe that his father had died, the two women
re-approached the barrister who had taken the appeal, Mark Ritter. Ritter said
the only hope was to find fresh evidence and convince the State’s Attorney-General
to send the case back to the courts. If they could do that, and he had a proper
defence, Ritter was confident Andrew would not be convicted twice.
Ritter sent the women to Colleen Egan, an experienced journalist who had heard
claims many times of women who believe their sons could never have
committed a crime. But after viewing the bizarre third-person "confession",
and seeing the holes in the case as she worked through the transcript, Egan
agreed to investigate further. Working full-time at television stations and
Egan gave up the case twice in frustration. But she kept taking it back, and
spent her nights and weekends testing evidence and gathering new leads. Working
alongside Ritter, Jacqui, and then two students and prison chaplain Rob Devenish,
who eventually all came on board, evidence finally started to emerge.
foremost polygraph expert, Bill Glare, tested Andrew and believes that he
tells the truth when he says he did not commit the murder. Similarly,
hypnotist Rick Collingwood who regressed Andrew back to the day of the crime
is sure he is innocent. The state's most eminent QC, Malcolm McCusker, says
the confessional evidence makes Andrew's a terribly unsafe conviction.
team found fresh evidence about the murder weapon - a sample of paint taken
from a nearby forklift that matches unexplained paint flakes in the
in Pamela Lawrence's head - that was never presented at trial. The sample,
was taken by police but never passed on to Andrew's lawyer, could not have
come from the weapon Andrew supposedly used.
But that one extra clue was
not quite enough, so the team approached Labor Government MP John Quigley,
whose considerable legal skills and experience
had been honed
for more than two decades as the police union lawyer before he entered
politics. The idea was for Quigley - a passionate and convincing advocate
- to help
argue to Attorney-General Jim McGinty that this case should go back before
The team figured that if they could convince the policeman's friend,
they could convince anyone.
Quigley read every word of the trial transcript
and then took up the case with gusto, appalled by the conduct of the trial.
energy and invaluable insider knowledge of police investigations, Quigley
more fresh evidence - and found it.
Drawing on Andrew's memories along
with the investigation team's findings that a mystery police officer was
somehow involved in the case, Quigley
a whole section of evidence never known to the Mallards: during the
week between the first police interview and the second, the police
operation. The operation gleaned nothing that could be used against
Andrew but there was plenty that could have worked in his favour
- so, against
the police and prosecutors simply withheld the fact from the court.
Quigley found that, incredibly, they also withheld the findings of the state's
chief forensic pathologist, Clive Cooke, regarding the
findings did not fit with the theory advanced at trial that Andrew
used a wrench to kill Mrs Lawrence - so, once again against proper
information from the jury.
This information - new to the Mallards
but old news to the office of the Director of Public Prosecutions and the
police - convinced
state's solicitor general
and Mr. McGinty in July 2002 to send the case back to the Court
of Criminal Appeal. The CCA finally sat in June 2003 - 5 days
the hearing -
but it soon became clear this was not enough time to hear all
of the complex
issues uncovered by Andrew's legal team.
Legal Aid was only able
to provide very limited assistance, barely sufficient to pay the fees of
some expert witnesses, Malcolm
McCusker QC and Dr.
James Edelman agreed to act as senior and junior counsel for
Andrew, free of
the firm of Clayton Utz provided, free, the services of a number
of fine lawyers to assist.
All did so, not because of any personal
or emotional involvement (Mr. McCusker and Dr. Edelman had never met Andrew)
arrived at independently, was that there had been a serious
miscarriage of justice.
However the CCA denied Andrew's appeal. The Court of Appeal referred to the
lawyers for Mallard as having gone on a "fishing expedition". They
appear to have been referring to the success of the lawyers in uncovering the
information kept from Andrew's lawyer and the jury at his trial: Mr McCusker
QC was criticised by the Court of Appeal, for having said that there was "deliberate
concealment" of evidence important to the defence of Andrew. But neither
the police nor the DPP suggested that the non-disclosure was accidental. What
the Court called a "fishing expedition" was the excellent work by
Andrew's appeal lawyers in uncovering additional information and evidence which
had been kept from his trial defence lawyer and the jury.
In the closing submissions
at the appeal, Mr McCusker said that there had been deliberate concealment
of information that would have been helpful and relevant
to the trial defence.
This prompted a response by Mr Fianacca of the DPP.
Mr Fiannaca did not explain why such information had not been disclosed.
appeal judges ruled that lie detector tests were not admissible as evidence.
This ruling seems highly inconsistent with police practice where polygraph
testing is used and where the results of such tests are released to the
media where persons of interest (suspects) fail the test - even in the
absence of charges against these people. Examples are the Claremont serial
and a person suspected of involvement in a killing on a freeway bridge.
So if Andrew didn't do it, who did? The team has uncovered information
about suspects who were on the list of 136 - and some who possibly weren't.
is clear evidence that once the detectives decided Andrew was their man,
they did not look at other suspects who could have been the murderer.