Conviction On The Basis of False Confessions in WA

Written by Jarryd Bartle.

A confession can be powerful evidence in any criminal prosecution, often the ‘silver bullet’ when no other evidence of guilt is available.

There is a long, sad history of false confessions in WA leading to miscarriages of justice, the most infamous of which is the conviction of Andrew Mallard.

The following outlines the case, what principles of evidence protect against unreliable confessions and what to do if you’ve been wrongfully convicted.

The Andrew Mallard Case

In 1994, Perth jeweller Pamela Lawrence was found bludgeoned to death in her store.

A 29-year-old Andrew Mallard quickly became the chief suspect at the time, despite a lack of physical evidence tying him to the scene. He had been arrested the same day of the murder for a break-and-enter at his girlfriend’s ex-boyfriend’s apartment. He was released from custody 2 hours before the murder. In the minds of police investigators, Mallard committed a series of break-ins and killed Lawrence during a robbery gone wrong.

Mallard was interviewed by police for over 8 hours without legal representation, experiencing persistent questioning, during which police claimed he confessed to the crime.

Evidence of the “confession” was questionable, consisting of police notes claiming to have heard a confession and a video showing Mallard describing how the murderer might have killed Lawrence; the account given in the third person.

Mallard was convicted of the murder in 1995. An initial appeal resulted in his conviction being upheld.

It wasn’t until 1998, when the combined efforts of investigative journalist Colleen Egan and barristers John Quigley and Malcolm McCusker, raised concerns about the conviction that there was a consorted effort to have Mallard’s conviction overturned.

During subsequent appeals, it came out that police and prosecutors had failed to disclose to the defence key pieces of evidence that contradicted the police narrative, including the plausibility of the use of a wrench as a murder weapon.

The case was appealed in the High Court which found unanimously that his conviction should be quashed and a retrial ordered. In reaching this decision, the Court noted the many flaws in the initial prosecution:

Mr Mallard allegedly made various admissions in three police interviews, with only one, of 30 minutes, recorded. One interview was conducted over more than eight hours while he was a patient at Graylands Mental Hospital. Another occurred after Mr Mallard had spent the night at a nightclub, had been beaten up, and had had little sleep. He also frequently denied killing Mrs Lawrence. In the interviews he made highly fanciful and bizarre statements, sometimes speaking in the third person. Discrepancies existed between his statements and the reality, such as what Mrs Lawrence was wearing. He said the assailant would have used a Sidchrome wrench, which he drew for the police. It only emerged at the second appeal that police attempts to replicate Mrs Lawrence’s wounds by striking a pig’s head with a wrench and other objects kept in her workshop were unsuccessful. Witnesses’ statements were retyped by police to exclude material favourable to Mr Mallard, including a description of a man seen in the shop by a girl whose mother worked there. Other witness statements were not disclosed. A scientist’s report had two pages missing.

The Department of Public Prosecutions decided not to pursue a retrial, and after serving 12 years in prison, Mallard was finally released in early 2006.

Tragically, Mallard later died in a hit-and-run accident in 2019, at just 57 years old.

The Admissibility of Confessions

The Mallard case highlights the importance of strong protections against the admissibility of confessions (or ‘admissions’) in WA criminal courts.

Under section 118 of the Criminal Investigation Act 2006 (WA) any admission by a suspect in a trial for a serious offence is not admissible unless:

• the evidence is an audiovisual recording of the admission; or
• in the absence of an audiovisual recording of the admission the prosecution proves, on the balance of probabilities, that there is a reasonable excuse for the absence, or the court decides otherwise

A ‘reasonable excuse’ for the absence of a recording includes:

• the admission was made when it was not practicable to make an audiovisual recording of it;
• equipment to make an audiovisual recording of the admission could not be obtained while it was reasonable to detain the suspect;
• the suspect did not consent to an audiovisual recording being made of the admission;
• the equipment used to make an audiovisual recording of the admission malfunctioned.

Similarly, under section 154 of the Act, any evidence that is obtained improperly contrary to police powers or procedure is prima facie inadmissible, unless the court otherwise allows.

Improperly obtained evidence of admissions may still be admissible under section 155 of the Act, if the court decides it is satisfied that the desirability of admitting the evidence outweighs the undesirability of admitting the evidence.

In making this decision, the court must consider:

• any objection to the evidence being admitted by the person against whom the evidence may be given;
• the seriousness of the offence in respect of which the evidence is relevant;
• the seriousness of any contravention of the Act in obtaining the evidence;
• whether any contravention of the Act in obtaining the evidence was intentional or reckless; or arose from an honest and reasonable mistake of fact;
• the probative value of the evidence;
• any other matter the court thinks fit.

What to Do If Wrongfully Convicted

If you have been wrongfully convicted as a result of a false confession, there are several options available to you.

If you have been wrongfully convicted of a crime in the Magistrates Court you can seek leave to appeal this conviction in the Supreme Court of Western Australia.

If you have been wrongfully convicted in the District Court or Supreme Court, you are entitled to seek leave to appeal this conviction in the Court of Appeal. A second right of appeal also exists if circumstances of fresh and compelling evidence exist.

In limited circumstances, convictions appealed in the Court of Appeal can be appealed to the High Court, or a petition for mercy can be made to the Government.

A full explanation of the options available for the wrongfully convicted is available here.

Need Legal Advice?

Andrew Williams is an experienced Criminal Lawyer and Barrister in WA  who can provide you with expert legal advice in relation to alleged murder, manslaughter, assault offences and wrongful conviction.

Andrew offers a range of criminal law services and traffic law services in Perth, Fremantle and throughout Western Australia. He has the experience to guide you through your legal matter whilst working towards achieving the best outcome for your case.

Call Now: (08) 9278 2575

This post is informative only. It is not legal advice. If you have a specific legal matter you’d like to discuss, please contact us.

PLEASE NOTE: The material in this blog post is for informational use only and should not be construed as legal advice. For answers to your questions regarding this or other topics, please contact a professional legal representative.