Brief Explanation of the Principles of Justice
The Principle of Justice are fundamental when ensuring that procedures generate unbiased, consistent and dependable court and legal decisions, they are present in our current society to carry out a set of rules in order to reach a fair and just outcome. Principles that can been discerned from the legal system involve: the rule of law, presumption of innocence of the accused, individuals having the right to a free and fair trial, by an independent and impartial judicial system, individuals also have the right to seek an appeal, and the court and police must adhere to the strict rules of evidence.
The Rule of Law is a political philosophy that states that all individuals are equal before the law, and asserts that laws must be based on consent of the people, involve consistent and accepted procedures and applies to the action of all. This means that the principle rejects any form of arbitrary or absolute power by applying the same law to all. In simpler terms, no one individual is not subject or above the law itself. Many different subcategories fall underneath The Rule of Law, such as police procedures and how evidence is obtained. In the case of Andrew Mallard, the police did not follow proper procedures.
The presumption of innocence is present in the Australian Legal System to protect the accused by ensuring that no guilt can be presumed of them until the criminal charge has been proved beyond all reasonable doubt by the prosecution. The burden of proof in a criminal court case rests with the prosecution, who must prove, beyond all reasonable doubt, that the defendant is guilty of the accused charge. Beyond reasonable doubt means that there can be absolutely no reasonable doubt that the accused is guilty of the crime, and therefore they are believed innocent until proven otherwise.
Section 21 of the Human Right Act 2004 states that : Everyone has the right to criminal charges, and rights and obligations recognized by the law. However, it should be known that the press and public should be completely separate from all parts of the trial, in order to protect morals, bias and public order. The Right to a Free and Fair Trial is not confined just to criminal cases. Whether a person is a defendant in a criminal case or a party in a civil dispute, they have the same right before competent. These rights can cover:
- The creation of courts and tribunals, and the appointment of judges and jurors.
- Review jurisdiction
- Whether or not a court proceeding is closed to the public or not
- And the restrictions of media coverage
The Right to a Free and Fair trial and A competent, impartial and Independent Judicial system are connected through how they both advocate for a fair hearing. Section 31 of the Human Rights act from 2019 states that:
- A person charged with a criminal offense has the right to have their court proceedings heard by a competent, independent and impartial tribunal or court
- Tribunals must exclude the members of media organizations and the public can be excluded if it is in the interests of the justice
- All judgements made by a court or tribunal must be publicly available
An independent and impartial judicial system is where the judicial branch of Government is completely separate from the other two arms of Government, the legislative and executive.
Under the Federal Court of Australia Act 1976 the court can hear appeals from:
- Judgements of a single judge of the Federal Court
- Judgements of the Supreme Court
- Specific judgements of courts from a state
- Specific judgements made of the Family Court of Australia and the Western Australia Family Court.
Individuals who have had a trial, or who have pleaded guilty and been sentenced by a District or Supreme Court Judge have the Right to Lodge an appeal, this may be to the Appeal division or to the Supreme Court of Appeals. An appeal must be made on grounds of opposing a conviction, on any terms that questions the law or with the permission of the Court, opposing the sentence given. The Right to an Appeal is simply when an individual has the opportunity to overturn a criminal sentence that they are currently or about to serve
Case Facts and Case Introduction
To grasp an understanding of the reasoning behind some process and judicial decisions, Mr Mallard’s background has to be eludicated. Andrew mallard was born in England on the 16th of August 1962 to parents Roy and Grace Mallard. The Mallard family migrated to Perth, WA in the summer of 67, where Andrew had extreme troubles settling in to his new lifestyle. Mr Mallard was severely bullied throughout his time at school, with him eventually leaving his education at the age of 16 to pursue a life in the military. Following his untimely dismissal from the military, Mallard fell into a life of drugs and alcohol, where for short periods of time were he was homeless. Andrew gathered a insurmountable of courage to return to his hometown in England, where what he experienced deeply affected him on a psychological level so poorly that he had to undergo therapy. The therapy aided him in regaining his confidence enough to allow him move out of his residence and into his ‘girlfriend’s’ flat.
Andrew Mallard became notable as the prime suspect in Western Australian society after the gruesome murder of Pamela Lawrence (56F). Ms Lawrence the mother of two, owned and worked in her jewelry shop. Early evening on 23rd May 1994 she was struck with an unknown object whilst locking up. It was only later that evening at 5:02pm that a school aged girl spotted a peculiar looking man standing behind the shop counter, whom she later described to be Caucasion, tall and having a bandana and an ginger beard. At 18:15, Ms lawrence’s husband, Peter, became uneasy when she failed to return home after a days of work, and following an unsuccessful call to her jewellery shop. Peter then acted on this worried feeling and drove to the premises, who he discovered to be his wife barely conscious and alive laying on the floor. At 19:00 Pamela was transported to the hospital. Lamentably, shortly before arriving at the hospital, Mrs Lawrence was pronounced dead.
Andrew Mallard – Principles of Justice review
The Australian Legal system is built on the six key Principles of Justice designed to preserve citizens’ basic rights and freedoms. These six fundamental Principles include; The Presumption of Innocence, The Rule of Law, The Right to a Free and Fair Trial, The Right to a Competent, Impartial and Independent Judicial System and The Right to seek an Appeal. These principles are followed by society to prevent chaos, maintain order and endeavour to ensure that everyone brought to trial, receives a fair and just hearing. Additionally, the principles ensure that people of different race, gender, income level and background are not discriminated against under the law. As a result, all members of the court and public law enforcement must treat everyone equally under the law, with no discrimination. However, in the case of Andrew Mallard, not all of the principles of justice were followed, resulting in a gross miscarriage of justice. The Rule of Law was compromised in this case, specifically involving the disregard of required procedures resulting in unlawful collection of evidence, primarily resulting from the three key interviews that were submitted into evidence. The other Principles of Justice that were compromised include the Right to a Free and Fair Trial, the Presumption of Innocence and the right to a Competent, Impartial and Independent Judicial system. Only one of the Principles of Justice was not compromised, that being the constitutional right to seek an appeal.
Throughout the police investigation, Andrew Mallard’s basic rights and freedoms under The Rule of Law were compromised. During the series of interviews forming a major part of the investigation, there was an abuse of power by those in law enforcement, and in particular, the detectives that undertook the investigation. During the concatenations of interviews, Mr Mallard was first interviewed in a psychiatric hospital without the aid of a psychiatric nurse or legal representation, leaving Mallard to answer questions alone. Moreover, allegedly Mr Mallard was fed key forensic information about the murder of Pamela Lawrence, described as the ’15 facts only the killer would know’ by the lead detective, Det Brandham. Contrary to required procedures, this interview was also not recorded. Despite all this, the two lead detectives claimed after the first interview that Andrew Mallard had confessed to the crime. The lack of recording alone was a direct violation of the prescribed rules and procedures regarding the collection of evidence to be followed. The second round of interviews which occurred on June 17, saw Andrew Mallard interviewed on three different occasions. At this time detectives were adamant that Mallard was the murderer, continually asking why and how Andrew killed Pamela Lawrence. Yet transcript recently made publicly available, revealed Mr Mallard retracting his statements where he allegedly confessed to the crime. This is a prime example of the abuse of power from detectives utilising their position of power to coerce Mr Mallard into a confession. The detectives acted as if they were above the law, believing they had the right person irrespective as to the manner in which their evidence was obtained.
It should be remembered that the police were aware that Andrew Mallard suffered from a social behavioral disorder where he feels the constant need to acquiesce, or please others in conversations. This predisposition is acutely present in the second round of interviews where Mallard theorizes how the murder could have been committed but also clearly stated that he “made everything up” that he told police during such theorizing, but could not explain why he had done so. It is interesting to note that The Corruption and Crime Commission, 7 October 2008, stated that misconduct can occur when a public officer acts corruptly or fails to act in the performance of the functions of the public office. A public officer takes advantage when they obtain a benefit for themself or for another or to detriment of another. Police procedures are required to be followed to ensure the objectivity and integrity of the investigation process, protecting the person of interest as well as the police. The lack of strictness in following these procedures was a major failing leading to protect against such occurrences senior officers or those in positions of more authority may oversee or even sit in on regular police investigations and interviews. This would seek to prevent personal influence and bias that law enforcement may have on ongoing investigations. Andrew Mallard however, was detrimentally harmed by this failure to act according to required procedures seeking to uphold the Rule of Law.
During the course of the trial, Mr Mallard’s basic Right to a Free and Fair trial was not upheld. It was the combination of the forged and coerced evidence together with the trial by media that resulted in a fair trial proving virtually impossible. Trial by media is the use of television and newspapers to influence the public opinion of a guilty or not guilty perception, before and during the trial before the verdict occurs. Throughout the trial, the media coverage on Mr Mallard’s case was unfathomable, there were some mixed opinions, however generally the media had branded Mr Mallard as guilty. Mr Mallard had a jury trial, the members of which were aware of public opinion. Bias opinions were unavoidable. High profile cases are known to have these concerns and Andrew Mallard was not alone in this regard. Lloyd Rayney v The Queen and Edwards v The Queen, shared similar risks to receive a fair trial.
In addition, the fairness of the trial was further compromised by other actions, not just by the police. The police obtained a coerced and falsely signed alleged confession. Referring again to the June 17 interviews, Mr Mallard said he had killed Mrs Lawrence, however shortly followed by him attempting to retract his statement. Furthermore, after the interview, the detectives allegedly signed off on the confession, acting as Mr Mallard. The prosecution also buried key forensic evidence that heavily pointed to the fact that the wrench that Mr Mallard said he had used to kill Pamela Lawrence, was forensically incapable of inflicting such injuries. Following the investigation a forensic pathologist came to the conclusion that this wrench could not have been used to inflict the injuries on Mrs Lawrence. High profile cases will continue to occur but perhaps consideration for such cases could be given to judge only trial as opposed to jury trial and depending on severity of the charge, the number of judges could range from 1-3. However, as the right to trial by jury is a constitutional right, the defendant would need to waive their right to a jury trial but also have the right to request a judge only trial. Judges are arguably less likely to be bias as less likely swayed by media due to their level of knowledge and comprehension of the law and court proceedings. Another required improvement, is the ease of falsifying and coercing interviews that are then submitted into evidence. Mr Mallard’s confession was the prosecution’s primary piece of evidence, without it they would have no basis to take Mr Mallard to court. Perhaps onus should be on the state to check how such evidence is collected. If this was done, perhaps they would have found out that the evidence wasn’t admissible in court. The origin of evidence should be investigated to a reasonable level, in an endeavour to identify illegally obtained evidence that would be to the detriment of the fairness of the trial.
The Right to a Competent, Impartial and Independent Judicial System is closely intertwined with the Right to a Free and Fair Trial. Yet again, trial by media compromises another principle of justice. The trial of Andrew Mallard directly violates Section 31 of the Human Rights act 2019. The media was not kept separate from the judicial proceedings, even although it was in the interest of Andrew Mallard that the court case remain closed. The public and jury were influenced by the media. A paragon example of this is again Edwards vs The Queen, as the court being closed to the public helped minimize any possible bias that the jurors and judges may have experienced. Although Edward’s case was still publicly spoken about, the court proceedings being closed to the public did help minimize the amount of bias. Therefore, logic should have dictated to close Andrew Mallard’s case to the public. High profile cases risk trial by public opinion as opposed to trial by an independent jury of one’s peers. However, we must realise that our judicial system is independent from the other two arms of government (executive and legislature) which is a measure sought to ensure independence of the judiciary from Government influence and seeks to provide impartiality in this regard.
The Presumption of Innocence was not ideally respected when it came to the Andrew Mallard investigation and trial. Presumed innocent until proven guilty. It was through the falsely signed and coerced confession that began Mr Mallard’ trial by media. The jury were arguably influenced by the opinion prominently based on media coverage. The presumption of innocence not being maintained until proven guilty by the verdict as the media suggestion of guilt precedes any trial completion. In the case of Andrew Mallard, the media spreading information about Mallard’s guilt, effectively resulted in the presumption of innocence becoming irrelevant. Another legal example of trial by media is the relates back to the Lloyd Rayney case, where the media coverage scapegoated Rayney (The accused) before he eventually was found not guilty, similar to the Mallard situation. This is an extreme example of how the public can adversely affect the court proceedings. This, together with buried evidence by the prosecution and the falsification of evidence by the police all made a mockery of the presumption of innocence.
The Right to seek an Appeal was truly the only principle of justice followed throughout the duration of the trial. The Judicial system abided by the 1976 Federal Court of Australia’s act where it states what levels of the court hierarchy can hear appeals. Mr Mallard’s appeals were heard by the Supreme Court of Appeals and the High Court. Although Mr Mallard did fail to overturn his conviction on both occasions and appeals, he had the opportunity to have his case heard again. This is what the Right to appeal is about, having cases that may have miscarriages of justices to be heard and reviewed again. Yet, it wasn’t an appeal that overturned Mr Mallard conviction. The court system had no faults when it came to allowing Mr Mallard the right to appeal is conviction. Hence, there is no way the appeal system could be improved in the case of Andrew Mallard.
Within the foremost features of the case, the key principles of justice in the case of Andrew Mallard were not upheld to the standard they should have been at; contrastingly a select few were upheld. After serving twelve years, Mallard’s conviction was overturned by the DPP as a result of the interviews and other forensic evidence becoming inadmissible in the court of law. He was further awarded 2.5 million AUD in compensation for being falsely convicted, and the detectives on his case were reprimanded and forced to step down from their positions of power.
The Right to seek an Appeal was truly the only principle of justice followed throughout the duration of the trial. The Judicial system abided by the 1976 Federal Court of Australia’s act where it states what levels of the court hierarchy can hear appeals. Mr Mallard’s appeals were heard by the Supreme Court of Appeals and the High Court. Although Mr Mallard did fail to overturn his conviction on both occasions and appeals, he had the opportunity to have his case heard again. This is what the Right to appeal is about, having cases that may have miscarriages of justices to be heard. Yet, it wasn’t an appeal that overturned Mr Mallard conviction. The court system had no faults when it came to allowing Mr Mallard the right to appeal is conviction. Hence, there is no way the appeal system could be improved in the case of Andrew Mallard.
To summarize the important features of the case, the key principles of justice in the case of Andrew Mallard were not upheld to the standard they should have been at, contrastingly a select few were not comprimised. In the end, Mr Mallard’s conviction was overturned by the DPP due to the interviews and other key evidence becoming inadmissible in the court of law, after twelve years in prison. He was further awarded 2.5 million AUD in compensation for his troubles and the detectives on his case were reprimanded and forced to step down from their positions of power.