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Mallard v The Queen [2005] HCA 68; (2005) 224 CLR 125; (2005) 222 ALR 236; (2005) 80 ALJR 160

[This version of the judgment has been prepared by: Dr Robert N Moles and Bibi Sangha Underlining where it occurs is for editorial emphasis]

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15 November 2005 - High Court of Australia

External link to full text of Mallard v The Queen

Gummow, Hayne, Callinan and Heydon JJ

Mallard was convicted of the murder of Mrs Lawrence, the proprietor of a jewellery shop, at Perth on 23 May 1994. He unsuccessfully appealed. After he had served 8 years of his sentence of life imprisonment in strict security, he petitioned for clemency. The Attorney-General for Western Australia referred the petition to the Court of Criminal Appeal which dismissed the appeal.

The importance of the Petition procedure declined, after the introduction of the Criminal Appeal Act 1907 (UK) to establish the Court of Criminal Appeal, although no attempt was made to abolish it. It proved fortunate that this was so because there was, initially at least, a judicial reluctance to allow appeals in criminal cases, occasioned in part no doubt by the sanctity accorded, and usually desirably so, to the verdict of a jury, and less desirably, to the legal conservatism of some of the judiciary of the day.

The provision with which the Court is concerned in this case is similar in substance to provisions in other States.

The exercise of the Crown prerogative is necessarily undertaken by officials and members of the Executive, unconfined by any rules or laws of evidence, procedure, and appellate conventions and restrictions. The history, briefly stated, argues in favour of an approach by the court (on a reference) of a full review of all the admissible relevant evidence available in the case. This is whether the evidence is new, fresh or already considered in earlier proceedings.

The proper approach

On the appeal, the judges thought that they were not to reconsider evidence which has been dealt with at trial. Much was made of the difference between "new evidence", that is, evidence available but not adduced at trial, and "fresh evidence", which appellate courts ordinarily will receive, on the basis that it did not then exist, or, if it did, could not then have been discovered with reasonable diligence. They then proceeded as if there were serious inhibitions upon that Court's jurisdiction to consider, not just the evidence that was adduced at the trial, but also its relevance to the further evidence that Mallard sought to introduce and rely upon in the reference.

It seems to us that the approach was an erroneous one. The explicit reference to "the whole case" conveys no hint of any inhibition upon the jurisdiction of the Court of Criminal Appeal on a reference. The words embrace the whole of the evidence properly admissible, whether "new", "fresh" or previously adduced. That does not mean that the Court may not, if it think it useful, derive assistance from the way in which a previous appellate court has dealt with some, or all of the matters before it, but under no circumstances can it relieve it of its statutory duty to deal with the whole case. The history, as we have already mentioned, points in the same direction. The effect of the words "as if it were an appeal" are merely to confine the Court to the making of orders, and the following of procedures apposite to an appeal, and whether the overall strength of the prosecution case requires the Court to apply the proviso.

This construction is consistent with the approach of Toohey and Gaudron JJ (Mason CJ and Brennan J agreeing) in Mickelberg v The Queen

"The words so far as they require 'the whole case ... [to] be heard and determined', permit of only one meaning. It is the whole case which must be passed upon by the application of legal principles appropriate to criminal appeals. That being so, the power to exclude matters from consideration is properly to be seen as an aspect of the inherent power of a court to control its own proceedings. That power will authorize the exclusion of issues which are frivolous or vexatious. However, subject to an issue being properly excluded as frivolous or vexatious, it is, in our view, the duty of a court to which there has been a reference of the whole case to pronounce upon the whole case as presented."

It is also consistent with the construction adopted by Lord Diplock in R v Chard of like language of the Criminal Appeal Act 1968 (UK):

"In my view, which I understand is shared by all your Lordships, the words of paragraph (a) of subsection (1) in their natural and ordinary meaning are free from any trace of ambiguity; the person whose case which resulted in his conviction is the subject matter of the reference is to be treated for all purposes as if he were a person upon whom there is conferred by section 1 of the Criminal Appeal Act 1968 a general right of appeal to the Court of Appeal on any ground which he wishes to rely (whether it be of law or fact or mixed law and fact), without need to obtain the prior leave of that court.

Since it is the 'whole case' that is referred, this must include all questions of fact and law involved in it ..." (emphasis added)

It follows that in proceeding as it did, the Court of Criminal Appeal erred in law. The question remains whether that error induced or caused a miscarriage of justice, the same question as would exercise the mind of the Executive were it to deal with a petition rather than refer it to the Court of Criminal Appeal for determination. The answer to that question may only be given after a consideration of the facts, not only as they emerged at the trial, but also as they emerged in the Court of Criminal Appeal, no matter what descriptive term the evidence adduced there might be given. It is elementary that some matters may assume an entirely different complexion in the light of other matters and facts either ignored or previously unknown.

Facts

Mrs Lawrence was alone in her shop when she was violently assaulted with a heavy instrument which has never been found. The assault occurred in the late afternoon. She was discovered, barely alive, but terminally injured, in a pool of her own blood, by her husband. Mallard had, on a previous occasion or occasions, been in the shop. He was a user of marijuana. Earlier on the day of the assault, he had been briefly in the custody of police officers. Following the death he was repeatedly interviewed by police officers, both while he was in hospital for the treatment of mental infirmity, and elsewhere. Only one of the interviews was recorded. During the interviews he made some highly fanciful, indeed incredible assertions and claims, as well as apparently inculpatory, confessional statements.

Some witnesses at the trial, with varying degrees of credibility, swore that they had seen Mallard in or about the shop at or about the time of the murder. It is sufficient for immediate purposes to say, that the whole of the evidence at the trial, including that of Mallard, despite conflicts in it, was sufficient to sustain a verdict of guilty.

On the reference however, further evidence was adduced. It also became apparent that a deal of it had been in the possession of investigating police before, and during the trial, and had not then been disclosed to Mallard. (Whether any of it was in the possession of the Director of Public Prosecutions is a question that is unnecessary to investigate.)  Some, at least, of that evidence, the respondent concedes should have been disclosed pursuant to the Prosecution Guidelines.

Disclosure of Crown Case

The Crown has a general duty to disclose the case in-chief for the prosecution to the defence.

Normally full disclosure of all relevant evidence will occur unless in exceptional circumstances full disclosure prior to the trial will undermine the administration of justice, or when such disclosure may endanger the life or safety of a witness.

Disclosure of Information to the Defence

When information which may be exculpatory comes to the attention of a prosecutor and the prosecutor does not intend adducing that evidence, the prosecutor will disclose to the defence –
(a) the nature of the information;
(b) the identity of the person who possesses it; and
(c) when known, the whereabouts of the person.
These details should be disclosed in good time.

At this point it is relevant to note that the recent case of Grey v The Queen in this Court stands as authority for the proposition that the prosecution must at common law also disclose all relevant evidence to an accused, and that a failure to do so may, in some circumstances, require the quashing of a verdict of guilty. As will appear, the evidence which was not produced before or at this trial, was certainly no less cogent than the evidence which was not disclosed in Grey.

Some of the further evidence related to the alleged murder weapon. In one interview, Mallard was asked what the assailant's weapon was. He replied, "A wrench". Mallard was asked to, and did draw a wrench, with the word "Sidchrome" on it. That drawing was an exhibit of which much was made at the trial. The deceased's husband said in evidence, with little conviction, that he thought that there may have been a Sidchrome spanner missing from a shed which his late wife used as a workshop behind the shop. The respondent had stressed both in opening and closing the prosecution case at the trial that the wrench drawn by Mallard was the murder weapon.

When Mallard gave evidence he denied that he had told the police that Mrs Lawrence had been killed with a wrench. He said that his sketch of the wrench was:

"a sketch of a supposed weapon that we were talking about in our theory which I said was a gas wrench to be used on acetylene equipment. I have no idea what a gas wrench looks like. That is what I assumed it would look like in my theory."

There was in fact no acetylene equipment in the workshop.

During the reference a number of contradictory facts were brought out for the first time and highlighted. These included that experiments had been done on behalf of the respondent with a crescent-shaped wrench of the kind said to be the murder weapon. The experiments conducted by a forensic pathologist and police officers, included the striking with a copper anode (of the kind kept in Mrs Lawrence's workshop), and a wrench, of a pig's head in an attempt, unsuccessful, to replicate Mrs Lawrence's wounds.

Other facts relevant to the nature of the murder weapon are these. Residues of rust and Prussian Blue pigment had been found in Mrs Lawrence's wounds. The composition of Sidchrome wrenches is such that they rarely rust. Sidchrome spanners were sold unpainted. A layer of blue paint from a forklift located near the deceased's premises did contain Prussian Blue pigment. The forensic pathologist who undertook the experiment said that a wrench could not have caused many of the injuries because it would cause blunt, crushing-type injuries rather than the cuts and lacerations suffered by Mrs Lawrence. He had examined a variety of tools, including spanners, in a friend's workshop and had been unable to find one capable of matching the wounds sustained by Mrs Lawrence. Similarly, two investigating police officers, Detectives Brandon and Carter, had attempted without success to locate a wrench which would be likely to produce wounds similar to those inflicted on the scalp of Mrs Lawrence. In 2002, at the request of those acting on behalf of Mallard, the pathologist, Dr Cooke, performed a further experiment with a pig's head, using a Sidchrome spanner supplied to him, and again was not able to replicate the injuries sustained by Mrs Lawrence. Whether or not a pig's head would be susceptible to cutting and deformation in a way similar to a human head, was not the subject of detailed expert evidence, but clearly the prosecution's experts, in undertaking the experiment must have thought it to be of some utility.

The disposition by the Court of Criminal Appeal of some of this relevant, potentially at least partially, exculpatory evidence was unsatisfactorily summary and almost entirely speculative.

"The material relating to the rust and the paint can be quickly disposed of. Although the petitioner's drawing of the wrench labelled it a 'Sidchrome', he also described it as 'rusty'. Two obvious possibilities, if a wrench/spanner were the relevant weapon, were either that he was mistaken in his recollection as to the brand, or alternatively that rust had adhered to it as a result of its having been stored with or used on some rusty object.

So far as the paint was concerned, it does not seem to have been suggested at trial that the entire weapon was blue. Rather, it appears from the outset to have been more likely that it had some blue adhering to it. A layer of blue paint from the forklift was indistinguishable from the blue paint specks found in the deceased's head wounds. However, paint of that colour and composition is relatively common. There were further layers in the paint from the forklift, which were of a composition not reflected in material found in Mrs Lawrence's head wounds. For that reason Mr Lynch, principal chemist at the Chemistry Centre WA, said in evidence on this appeal that he considered it unlikely that the forklift was the source of the paint in Mrs Lawrence's wounds.

So far as the rest of the material is concerned, although it has a number of nuances and variations, the broad thrust of the petitioner's submission can be summarised as being to the effect that:  a wrench could not have been the murder weapon; and this fact was known to the prosecution but not disclosed to the defence. Had the jury known that it could not have been the weapon, doubt would have been cast on the petitioner's confession to use of a wrench as the weapon. That proposition falls to be evaluated against the evidence given at trial, and the evidence given before us, as to the likely weapon."

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. The body of unpresented evidence so far mentioned was potentially highly significant in two respects. The first lay in its capacity to refute a central plank of the prosecution case with respect to the wrench. The second was its capacity to discredit, perhaps explosively so, the credibility of the prosecution case, for the strength of that case was heavily dependent on the reliability of the confessional evidence, some of which was inexplicably not recorded, although it should have been recorded.

The Court of Criminal Appeal also seems to have been overly impressed by evidence adduced by the respondent in rebuttal of Mallard's alibi, that he had at the time of the murder, been knocking on various doors looking for marijuana, from witnesses who said that they had heard no-one knocking on their doors. The disproof and rejection of the alibi did not mean that Mallard should on that account alone have been convicted.

Mallard's evidence at the trial was that he had left a taxi at Bel Air Apartments, without paying, shortly after 5 pm. While the driver waited, he entered the foyer and went through to another building to see whether the taxi had left. This he said, took about 20 minutes. The taxi driver said that he dropped Mallard off 4.45 to 5 pm and waited for about 20 minutes before returning to a nearby taxi rank and accepting a radio call at 5.22 pm. In cross-examination, he said that it was "nearer to 5 o'clock". Uncontradicted evidence at the trial was that the time taken to walk from Bel Air flats to Mrs Lawrence's shop was five minutes, or by another route, two minutes and 40 seconds. Both routes followed a path, directly in front of Bel Air, where the taxi driver was waiting for Mallard to return. That the taxi driver did not see him strongly suggests that he did not pass that way.

The body of evidence just summarized was capable, not only of establishing Mallard's absence from the scene of the murder at the time of it, but again, also of weakening the credibility of the confessional evidence. This was not a case, indeed few are, where the respective bodies of evidence can be taken as being in watertight compartments.

The confessional evidence consisted of the sum of an unrecorded interview by Detective Sergeant Caporn on 10 June 1994, a further unrecorded interview by another police officer, Detective Sergeant Brandham on 17 June 1994, and a short videotaped interview after the unrecorded interview on that day.

On the morning of 10 June 1994 Mallard was discharged from Graylands Hospital to answer a charge at the Central Law Courts in Perth. It was then that he was first interviewed. At 12.50 pm he was taken by police officers from the Central Law Courts to a police station where he was interviewed over a period of eight hours and 20 minutes with seven intervals. At trial he said that during the interview he "was in total confusion to the point where anything that he [Detective Sergeant Caporn] suggested to me I would adopt."  He was not, it may be observed, cautioned or charged during, or immediately before that interview.

The interview on 17 June 1994 was unrecorded. It lasted three hours. It was (to the knowledge of those conducting it) conducted after Mallard had spent most of the previous evening at a nightclub, had been beaten, and had had little sleep.

After the unrecorded interview of 17 June 1994, there was a videotaped interview of less than 30 minutes, described by the Court of Criminal Appeal as of a "very unusual nature". At the beginning of the interview, Mallard said:  "I want to be video recorded so that I can be cleared."  His closing words were that his account was "my version, my conjecture, of the scene of the crime."  In this interview, he often spoke of himself in the third person (for example, "initially I entered into the room, or this person entered the room ... thinking that he was on his own"). He also spoke about Mrs Lawrence as if he were speculating about her conduct rather than reporting his observations of it (for example, "I would say she would have done ..."). Several times he was interrupted by the interviewers (for example, when he said, "Judging by the damage that was shown to me in photographs ..."). During it he offered further suggestions about the murder.

The Court of Criminal Appeal described the circumstances and contents of Mallard's "confessions" as "peculiar", adding that Mallard "said a number of things which were, to say the least, odd."  Nonetheless, the Court concluded that Mallard had "persist[ed] in a pattern of grudging confession as his untrue accounts were rejected, together with a continuing attempt to mislead where possible."  One of the peculiarities of course, was Mallard's use of the third person in referring to the killer. For example, in the interview of 10 June 1994 he spoke of the "evil person" who killed Mrs Lawrence, and of the emotions that this person would be feeling, also saying "it's murder and that's not me." 

The Court of Criminal Appeal did not refer to other peculiarities of the confession, which was illogically punctuated by denials that he was the murderer. During one interview, he agreed to give, and gave, a blood sample, saying "This will clear me."

In the Court of Criminal Appeal the respondent submitted that 15 facts could be identified in Mallard's confession which only the murderer could know. In response, Mallard submitted that these were in truth inconsistent with known or established facts. Mallard submitted that the Court of Criminal Appeal erred in declining, as it did, to consider this submission. This error was a consequence of the Court's self-imposed limitation upon its duty to consider the whole case. Had the Court considered that submission it would have been bound to uphold it in part at least.

Some examples will suffice. The evidence about the Sidchrome spanner. The evidence of the blood patterns was different from the pattern that would probably have resulted had he struck Mrs Lawrence where he said he did. The evidence about the point, and his means of entry was, to say the least, unlikely to be true in the light of other evidence with respect to the securing of the front door of the shop.

During one of the interviews Mallard said that he had "locked eyes" with a girl, Miss Barsden, the young daughter of an employee of the deceased. At trial, she said that she had seen a man in the shop, when the car in which she was seated was stationary, and that this person "ducked down" (beneath the counter) when he realized she was looking at him. Evidence was adduced at the reference of an ophthalmologist who had tested Mallard's eyesight and found it to be impaired to such an extent as to cast doubt on his ability to "lock eyes" with anybody.

This witness, Miss Barsden, described the man whom she saw in the shop as a man of about six feet in height. Mallard is in fact six feet seven inches tall. The facial hair she described on the man she saw also differed from Mallard's, and it is likely that the headwear of the latter in turn differed from that which she observed on the man whom she saw in the shop.

It is highly improbable that the perpetrator of the crime would not have had some of Mrs Lawrence's blood spattered on him or her. None of the deceased's blood was detected on Mallard or his clothing. The evidence was that Mallard explained its absence by saying that he had washed his clothes in salt water because salt water obstructed or distorted the results of scientific testing. Credible, subsequent, scientific evidence was introduced to the effect that salt water was not present in his clothing, and that had Mallard's clothes been immersed in it as he claimed, the heavy rain falling at the time would not have been sufficient to wash all salt out of the clothing.

His assessment of the number of blows struck was approximate and varied from time to time. There was in fact no necessary correspondence between Mallard's description of Mrs Lawrence's clothing and what in fact she was wearing when she was attacked. There were discrepancies between Mallard's description of the premises and its actual configuration. Mallard denied that he had said much of what was attributed to him in the interviews by the police officers. The absence of any recording of most of the interviews is in these circumstances most unfortunate.

There was substance in Mallard's contention in this Court that the Court of Criminal Appeal wrongly declined to entertain a submission that most or all of the matters said by the respondent to be uniquely within the murderer's knowledge, were not objectively true, or were contradicted by other matters, or were equivocal, or were patently false: and, in consequence, for those and other reasons, including Mallard's denial that he had said what was attributed to him about them, the so-called confessions were unreliable.

There were numerous other matters relied on by Mallard, but we need refer to only one of them, his mental infirmity. The respondent submitted that the evidence of Mallard's psychiatric condition presented at the reference was neither fresh nor new:  it was materially identical to evidence adduced at the voir dire at the trial in relation to the admissibility of Mallard's interviews with police. It was dealt with in this way by the Court of Criminal Appeal:

"One of the particulars of 'fresh evidence' which is relied upon to establish that the petitioner's confessions were unreliable and should not have been admitted, or that a jury which had that evidence would be likely to have a reasonable doubt relating to them, is said to be the evidence of the psychiatric illness of the petitioner which is contained in affidavits of Dr Patchett.

On the other hand, although expert psychiatric evidence may have assisted the thrust of the submission outlined above, by confirming the petitioner's grandiose and unusual speech and thought patterns, there were apparent disadvantages associated with it. The evidence of Dr O'Dea at the voir dire described the petitioner at the relevant time as having been in a 'manic' state. He was described as liable to become 'up-tight and upset' and verbally threatening in situations of stress. He was described as having a 'rich fantasy life' but as being able to determine whether his ideas were fact or fantasy. The last of those observations might well have supported an inference that in his confessions, and particularly in the videotaped confession, the petitioner was quite able to distinguish between being asked about his own movements and being asked about some hypothetical murderer. The discussion of his 'manic' state could well have led to or strengthened a view that he was the type of person who might react disproportionately if, during the course of a robbery, Pamela Lawrence became upset and hysterical, as the police alleged that he had said she did."

There is considerable force in much of what the Court of Criminal Appeal said of the psychiatric evidence, its availability, its potential to damage the defence, and the forensic legitimacy of a decision not to lead it before a jury. But it had to be considered with the other evidence in obedience to a mandate to consider the whole of the case, and the whole of the case includes the evidence contradicting aspects of Mallard's confession. All of that provides a basis for further argument in favour of an inference that it should be treated as being of no or little reliability.

Counsel for the respondent made several concessions. They were all properly made. They alone, the respondent accepted, would require that the conviction be quashed, unless the proviso, that no substantial miscarriage of justice had occurred, should be applied. He submitted it should be. We are unable to agree. The non-presentation of the evidence to which we have referred, and having the significant forensic value that we have identified, alone, precludes this. Taken with the other evidence that we have discussed, Mallard is entitled to have the verdict quashed. This rather than a remission of the case to the Court of Criminal Appeal to decide the reference in accordance with these reasons is the appropriate course because the only possible correct conclusion there would be that the conviction should be quashed.

We would not however accede to Mallard's submission that a new trial should not be ordered. Mallard has already served many years of imprisonment. The case for the prosecution has now been shown to have its defects. But it also has its strengths. Having regard however to what has in total passed and emerged it would remain well open to the respondent to elect not to have Mallard retried if it were so minded.

The appeal should be allowed, the orders of the Court of Criminal Appeal set aside and in place thereof it should be ordered that the conviction of Mallard be quashed, and that there be an order for retrial of Mallard.

KIRBY J

I agree with the joint reasons that, once the correct approach is adopted and the evidence at trial analysed, this is not a case where the proviso should be applied. For the reasons stated, and to bring this protracted saga closer to finality, the proper course is for this Court to dispose of the proceedings and not to remit them for a third hearing in the Court of Criminal Appeal.

It is important to consider the cumulative effect of the non-disclosure or suppression of material evidence in the hands of the police and thus available to the prosecution. It is the cumulation, variety, number and importance of such evidence that is critical to my conclusion that a miscarriage of justice occurred in Mallard's trial.

The pig's head experiment
What was not disclosed at the trial was that, before the trial, an experiment had been conducted for police by striking a pig's head with a wrench. The conclusion of those conducting this experiment was that the wounds were "dissimilar".

The salt-water experiment
Mallard's "confession" to police had him going "down to the river ... and wash[ing] his clothing" after the attack, inferentially to remove blood stains. At the point of the river identified in this "confession", the clothes would have been exposed to the presence of salts in the river water. In its original form, a six page report for police by Mr Lynch contained two pages under the heading "Examination of clothing for immersion in river water". However, at the request of police, a second version of the report was produced omitting those two pages. The missing two pages were never disclosed to the defence. The undisclosed part of the report concluded that "[t]he residual soluble salts detected in the clothing items are not consistent with immersion in river water … unless they were subsequently washed in fresh water". The respondent sought to explain this discrepancy by referring to the fact that it had been raining on the evening of the deceased's murder. However, further experiments by Mr Lynch showed that, even in significant rainfall, the levels of salts in clothing soaked in river water remained clearly detectable.

The missing cap
Mallard's "confession" to police had it that he was wearing a cap with a gold border turned backwards. However, a prosecution witness, had made a handwritten statement only a few days after the deceased's murder. This stated that Mallard's familiar cap remained on a hook in her apartment on the afternoon of the murder. All references to the whereabouts of Mallard's cap, his wet hair and lack of headgear were removed by police from the original statement. The police prepared a second, typed, statement which deleted this information.

The undisclosed sketches
The day after the murder, Ms Barsden signed a statement for police. This stated that, at her mother's suggestion, when she had arrived home, she had drawn sketches of the man she had seen in the deceased's shop. Her original statement referred to these sketches. However, that version of the statement was not given to the defence. In the statement that was later produced, the reference to the sketches was deleted by police. There were discrepancies between the undisclosed sketches and the appearance of Mallard at the time of the attack on the deceased.

The locking of eyes
Mallard denied that he had said that he "locked eyes" with a girl passing by the shop where the deceased was killed. However, in an original police statement this phrase had been attributed to him. The phrase was deleted from the draft witness statement provided to the defence. The removal of the expression from the statement, as supplied, lends weight to the suggestion that the "verbal confession" attributed to Mallard amounted, in substantial parts at least, to words chosen by police rather than by Mallard. And that the later deletion of the statement was designed to remove an obvious source of discrepancy that could be brought out by cross-examination.

The man wearing a bandanna
Two witness statements, which were not disclosed to the defence, described a man seen wearing a bandanna on his head and behaving erratically within three kilometres of the scene of the murder several hours before it happened. At the time described, Mallard was detained in relation to another charge in the East Perth lockup. Accordingly, he could not have been the person described as wearing the bandanna. Yet the person so described more closely fitted Ms Barsden's description of the person she had seen and with whom she had "locked eyes".

Conclusion: material non-disclosures

A review of the foregoing and other evidence, which was not disclosed to Mallard's counsel at the trial, but which was in the possession of police and, at the least, available to the prosecution, suggests strongly that material evidence was not disclosed that bore upon the guilt of Mallard of the crime charged in the indictment. Whilst the non-disclosure of one or two of these items taken alone or perhaps together, might not have been sufficient to produce an unreasonable or unsupportable verdict, with a miscarriage of justice in the trial, a consideration of the totality of the unrevealed evidence raises a stark question as to the safety of Mallard's conviction.

Of particular concern are the items in which evidentiary material, consistent with innocence and presenting difficulties for the prosecutor's hypothesis of guilt, were actually suppressed or removed from the material supplied to the defence. The important issue of legal principle in this appeal is whether such non-disclosures and suppression deprived Mallard of a fair trial.

Approach to prosecution non-disclosures

"Prosecution Policy and Guidelines" were stated to be "based on, and developed from, the Crown's longstanding prosecution policy in Western Australia". They were said to take account of, and to incorporate, the Guidelines on the Role of Prosecutors adopted by the Eighth United Nations Congress on the Prevention of Crime and Treatment of Offenders of 1990 ("the United Nations Guidelines"). Indeed, the United Nations Guidelines are annexed to the Western Australian Guidelines.

The most important paragraphs of the Guidelines governing the disclosure of the prosecution case and provision of information to the defence are set out in the joint reasons. I would add, however, reference to the following additional paragraphs of the Guidelines:

If a prosecutor knows of a person who can give evidence which may be exculpatory, but forms the view that the person is not credible, the prosecutor is not obliged to call that witness.

In either case, the Crown, if requested by the defence, should subpoena the person.

If the prosecutor possesses such exculpatory information but forms the view that the statement is not credible or that the subject matter of the statement is contentious, the prosecutor is not obliged to disclose the contents of the statement to the defence, but should inform the defence of the existence of the information and its general nature.

However, if the prosecutor is of opinion that the statement is credible and not contentious, then a copy of that statement should be made available to the defence in good time.

The paragraphs are designed to relieve the prosecution of obligations to produce to the defence the text of statements made by collaborators, supporters and friends of the accused. In the present case, the unprovided and suppressed materials did not fall into that category. Without exception, they were statements procured in the preparation of the police brief for ultimate tender to the prosecutor. At least some of them were certainly known to the prosecutor. All of them would have been available to the Director of Public Prosecutions.

Where a form of statutory instrument is adopted, enjoying authority under an Act of the Parliament, it prevails, to the extent of any inconsistency, over principles of the common law. However, it is clear from the language and purpose of the Guidelines that they were not intended to expel the operation in Western Australia of the general principles of the common law on prosecution disclosures. Instead, they were intended to express, clarify, elaborate and make public the "longstanding prosecution policy" that had developed conformably with the common law. Moreover, they were intended to give effect to international principles which, in turn, were designed to ensure observance of "human rights and fundamental freedoms recognised by national and international law".

This Court's authority

The consequence of an omission of the prosecution in a criminal trial to supply to the defence statements of material witnesses was considered by this Court in Lawless v The Queen. There, a majority refused special leave to appeal against the dismissal of a petition of mercy on the ground that the "fresh evidence" relied upon would not have been likely to have led to a different result in a new trial. Murphy J, dissenting as to the result, observed that the trial judge had directed the prosecution to hand over to the applicant copies of all statements by witnesses. The prosecutor having disobeyed this direction by failing to hand over one such statement which "could have been useful to the applicant … [i]n the way the trial ran", Murphy J considered that the applicant had suffered a miscarriage of justice on the ground of the suppression of the evidence in and of itself.

In R v Apostilides, this Court affirmed the responsibility borne by a prosecutor in the conduct of a criminal trial. However, it acknowledged the jurisdiction of courts of criminal appeal to consider the consequences of the prosecutor's decision where, for example, an election not to call a particular person as a witness, when viewed against the conduct of the trial taken as a whole, could be seen to have given rise to a miscarriage of justice. The Court emphasised that the object of judicial scrutiny in such cases was not to discover whether there had been "misconduct" by the prosecution. It was to consider whether, in all of the circumstances, the verdict was unreasonable or unsupportable in the statutory sense.

A case involving a more explicit failure of the prosecution, being a failure to reveal that a key prosecution witness had been given a letter of comfort by an investigating police officer despite "widespread and deep involvement" in crimes of the type charged against the accused, was Grey v The Queen. The question in that case became whether the non-disclosure in question had occasioned a miscarriage of justice that was not insubstantial and had deprived the accused of a fair chance of acquittal. It was held that it was not reasonably necessary for the accused in that case to "fossick for information" to which he was entitled in the proper conduct of the prosecution against him. The Guidelines considered in that case, were not materially different from the Guidelines applicable to the present appeal. The determining consideration in Grey was that the undisclosed material was highly relevant to the credibility of several of the witnesses called by the prosecution against the accused and to the evaluation of the accused's own case. The same can be said of the undisclosed evidence in these proceedings. In Grey, the appeal was upheld.

The respondent did not contest its failure to provide relevant materials to Mallard. The question became one of the significance of such failure. As in Lawless, Apostilides and Grey, that question took the Court to the statutory provisions governing criminal appeals. However, in giving effect to those provisions, it is useful to consider the approaches taken in other countries that follow, as Australia does, the accusatory form of criminal trial, adapted from England. Allowing that it often reflects local constitutional and statutory law, when such authority is examined the considerations given weight by the courts suggest an increasingly insistent demand for the provision of material evidence known to the prosecution which is important for the fair trial of the accused and the proper presentation of the accused's defence. Exceptions exist. However, they are comparatively few and closely defined. Such an approach has been judged essential to the conduct of a fair trial of criminal accusations in many countries.

North American cases

In the United States of America, suppression by the prosecution of evidence favourable to an accused, where it is material to guilt or punishment, may be judged a violation of the due process requirements of the Fourteenth Amendment to the Constitution. Although Australia has no such constitutional provision, many of the notions that are protected by the Fourteenth Amendment are familiar to us given that, in criminal trials, the primary purpose of that constitutional protection is to ensure against miscarriages of justice that are equally abhorrent to our law.

In United States cases, as in the Guidelines applicable here, a distinction is drawn between the prosecutor's duty in respect of exculpatory evidence and evidence casting doubt on the truthfulness of other prosecution witnesses. In a recent case, bearing some similarity to Grey, the Supreme Court of the United States allowed an appeal where the State had failed to disclose that one of the witnesses upon whom it had relied was a paid police informant. If the undisclosed or suppressed evidence is judged such as to create a "reasonable probability" that a different result might have ensued had the evidence been disclosed to the defence at an appropriate time, a new trial will generally be ordered.

In language that recurs in the decisions of many courts on this issue, the Supreme Court of the United States has declared that the central question is "whether in [the] absence [of the material evidence, the accused] received a fair trial, understood as a trial resulting in a verdict worthy of confidence". The Supreme Court has explained that it is not the duty of the prosecutor to "deliver his entire file to defence counsel". Still less is it to conduct the defence case. The ambit of the duty of disclosure, however, is one deriving from the very character of the criminal process. Prudent prosecutors, it is said, will always resolve doubtful questions in favour of disclosure. They will do so in recognition that the role of the prosecutor is as:

"the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done."

Many of the same considerations have been upheld in the Supreme Court of Canada, including since the adoption of the Canadian Charter of Rights and Freedoms. Thus in R v Stinchcombe, Sopinka J referred to the duties of prosecutors in Canada which render "the fruits of the investigation … not the property of the Crown for use in securing a conviction but the property of the public to be used to ensure that justice is done".

In Canada, as elsewhere, non-disclosure is excused in particular cases, such as where the evidence is beyond the control of the prosecution, is privileged or is clearly irrelevant. However, otherwise, a high duty of disclosure has been affirmed. The criterion usually applied is the entitlement of the accused to a fair trial. In Canada, where undisclosed evidence appears material, it is for the Crown to bring itself within an exception to the general rule mandating disclosure. The rigour of this principle has doubtless been enhanced by the adoption of the Charter. But similar principles have been observed, for like reasons, in countries lacking such express constitutional provisions.

British and Irish cases

In the United Kingdom, the common law test required disclosure of material in the possession of the prosecution as "[a]n incident of a defendant's right to a fair trial". The prosecutor's duty in Britain is now governed by legislation. Such legislation modifies, to some extent, the accusatorial character of criminal trials. The procedures have been adapted accordingly. This fact makes more recent judicial authority in the United Kingdom of less significance for Australia. However, in R v Brown, Lord Hope of Craighead affirmed:

"The prosecution is not obliged to lead evidence which may undermine the Crown case, but fairness requires that material in its possession which may undermine the Crown case is disclosed to the defence. …  [T]he prosecution is not obliged to lead the evidence of witnesses who are likely in its opinion to be regarded by the judge or jury as incredible or unreliable. Yet fairness requires that material in its possession which may cast doubt on the credibility or reliability of those witnesses whom it chooses to lead must be disclosed."

Subject to any exceptions provided by statute or common law, I would accept this as a statement expressing the common law rule in this country. Its foundation, as Lord Hope explained, lies in "the principle of fairness [which is] at the heart of all the rules of the common law about the disclosure of material by the prosecutor".

In Scotland, which follows a different criminal procedure, a like duty of disclosure applies to the Crown in respect of "information in their possession which would tend to exculpate the accused". Similarly, in the Irish Republic, the courts have followed the general principles expressed by the English cases. Specifically, where the prosecution has a statement by a person in a position to give material evidence, who will not be called as a prosecution witness, it is "in general" under a duty to make available to the defence any statements that the witness may have given.

The English authorities have been influential throughout Commonwealth countries. A similar rule of prosecution disclosure is observed in New Zealand where Lord Hope's approach in Brown has been followed.

Demonstrating the generality and strictness of the rule, in Hong Kong, since its separation from the Crown, the courts have continued to observe the principle that, if disputed material is in the possession of the prosecution, which may help prove a defendant's innocence or avoid a miscarriage of justice, "the balance comes down resoundingly in favour of disclosing it".

International law decisions

The explicit introduction into the Guidelines in Western Australia of reference to international statements about human rights makes it relevant, in considering what flows from non-disclosure or suppression of material evidence in this case, to notice decisions concerning the requirements of the International Covenant on Civil and Political Rights binding on Australia and of the doctrine established by courts elucidating the similar or analogous provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms ("the European Convention").

In Edwards v United Kingdom, the European Court of Human Rights affirmed that the requirement in Art 6(1) of the European Convention, entitling everyone to a "fair and public hearing … by an independent and impartial tribunal established by law", extended, in a criminal prosecution, to a requirement that "the prosecution authorities disclose to the defence all material evidence for or against the accused". The Court noted that this was also a requirement recognised under English law. It is one that has been reinforced in more recent times by the European Court's decision in Fitt v United Kingdom. There, the Court observed:

"It is a fundamental aspect of the right to a fair trial that criminal proceedings … should be adversarial and that there should be equality of arms between the prosecution and defence. …  [B]oth prosecution and defence must be given the opportunity to have knowledge of and comment on the observations filed and the evidence adduced by the other party. In addition Article 6(1) requires, as indeed does English law, that the prosecution authorities should disclose to the defence all material evidence in their possession for or against the accused."

The European Court of Human Rights has recognised that the duty of disclosure is not absolute or precisely reciprocal in an accusatorial system. The duty may permit prosecution non-disclosure for reasons of competing interests such as national security; or to protect witnesses at risk of reprisal; or to keep secret police methods of investigating certain crimes; in some cases to preserve the fundamental rights of another individual; or to safeguard an important public interest. However, even where such exceptions exist, the European Court has insisted that it remains the accused's right to receive a fair trial and any difficulties caused by limitations on the right to disclosure must be "sufficiently counterbalanced by the procedures followed by the judicial authorities". Considerations such as these have led, in accusations of terrorism offences, to the adoption of new procedures involving "special advocates".

Non-disclosure of evidence: conclusions

The applicable principles
The foregoing review of the approach of courts, in national and international jurisdiction, indicates the growth of the insistence of the law, particularly in countries observing the accusatorial form of criminal trial, of the requirement that the prosecution may not suppress evidence in its possession, or available to it, material to the contested issues in the trial. It must ordinarily provide such evidence to the defence. Especially is this so where the material evidence may cast a significant light on the credibility or reliability of material prosecution witnesses or the acceptability and truthfulness of exculpatory evidence by or for the accused.

The obligation imposed by the law is to ensure a fair trial for the accused, remembering the special requirements that descend upon a prosecutor, who represents not an ordinary party but the organised community committed to the fair trial of criminal accusations and the avoidance of miscarriages of justice.

Ultimately, where there has been non-disclosure or suppression of material evidence, which fairness suggests ought to have been provided to the defence, the question is whether the omission has occasioned a miscarriage of justice. This is so both by the common law and by statute (and in some jurisdictions by constitutional mandate). The courts are guardians to ensure that "justice is done" in criminal trials. Where the prosecutor's evidentiary default or suppression "undermines confidence in the outcome of the trial", that outcome cannot stand. A conviction must then be set aside and consequential orders made to protect the accused from a risk of a miscarriage of justice. At least, this will follow unless an affirmative conclusion may be reached that the "proviso" applies – a conclusion less likely in such cases given the premise.

In a case of very limited non-disclosure which the appellate court concludes affirmatively to have been unlikely to have altered the outcome of the criminal trial, the proviso may be applied as it was in Lawless. However, in a case where the non-disclosure could have seriously undermined the effective presentation of the defence case, a verdict reached in the absence of the material evidence (and the use that the defence might have made of it) cannot stand. Such was the case in Grey.

Application of the principles
When the foregoing principles are applied to the present appeal, there can be but one conclusion. There were many curious features of this case at trial. The possibility that Mallard is innocent cannot be excluded. There is exculpating evidence. Some of it was simply not revealed to the defence. Some of it was actually suppressed so as to deprive the defence of material by which to test the accuracy of the evidence of obviously truthful witnesses and to impugn the credibility of others (particularly police) whose credibility was challenged and where the resolution of that challenge was significant for the acceptance or rejection by the jury of the unrecorded and unconfirmed "confessions". These "confessions" had their own peculiarities. Subjecting them to rigorous examination and scrutiny at the trial was essential to the fair trial of Mallard.

The very number, variety and significance of the material evidence that was not disclosed to the defence in these proceedings, without more, presents, potentially, an important body of testimony upon which counsel representing Mallard could suggest a failure by the prosecution to afford him a fair trial. In particular, the non-disclosure and suppression of evidence that presented contradictory (or at least highly inconvenient and troubling) testimony from getting before the jury could be viewed, of itself, as casting doubt on the reliability of the "confessions" that were an important foundation of the prosecution case.

I have described the requirements governing prosecution disclosure laid down by many courts for a purpose. Despite the distinct legal rules of different jurisdictions, there is a high measure of consistency in the emerging principles. This is hardly surprising given the links of history and the contemporary stimulus of universal notions of fundamental rights both for the expression of the common law and the elucidation of Guidelines founded in statute or other written law. There is nothing inconsistent with these principles in this Court's earlier doctrine. To the contrary, Australian law gives effect to them.

A reflection upon the consistency with which the principles are expressed and applied in the foregoing cases in courts of high authority confirms a conclusion that, in the present case, especially when viewed in combination, the many instances of prosecution non-disclosure and of the suppression of material evidence results in a conclusion that Mallard's trial cannot enjoy public confidence. This is another way of saying, in terms of the Code, that the jury's verdict is unreasonable or insupportable in the light of the "whole case", as it is now known.

Conclusion: a miscarriage of justice

It follows that there has been a miscarriage of justice in this case. It is impossible to conclude that the errors which occurred in Mallard's trial can be described as insubstantial so as to warrant dismissal of the appeal under the proviso. The appeal must be allowed.

The disposition and orders

Submission for acquittal
Mallard strongly argued that he was entitled to an order of acquittal. By reference to the defects in the conduct of his trial, the suggested errors in the suppression of material evidence, the substantial material relevant to his mental infirmity said to explain the peculiarities of his "confessions", the prolonged period he has already served in prison and the burden of a retrial on him, on witnesses and on the community, Mallard asked this Court to bring his incarceration to a close with an order of acquittal.

In Dyers v The Queen, I collected considerations that this Court has viewed in the past as relevant, where a conviction is quashed, to adding the usual order for a new trial and, exceptionally, to omitting that course. As I acknowledged there, retrial is the normal order in such circumstances. This leaves it to the prosecution, within the Executive Government, to take into account all relevant considerations and to ensure consistency in the treatment of like cases in ordering a retrial.

In Dyers, I concluded that no new trial should be ordered in the special circumstances of that case. However, all other members of the Court joined in making the usual order. That is the order that should be made here, but in the terms, and for the reasons, expressed in the joint reasons.

A new trial order:
There remain curiosities in the evidence of Mallard in the first trial. There are issues of conflicting evidence that an appellate court cannot satisfactorily resolve. Whether, in all the circumstances, a retrial should be had, is a question properly left to the Director of Public Prosecutions. The matters disclosed in this appeal will doubtless be of assistance to him in making his decision.

I agree in the orders proposed in the joint reasons.

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