Wednesday, December 31, 2008


The West Australian reported today (28 December, 2008) that, in the words of its headline, "Fate of Mallard cops in doubt."

"Police Commissioner Karl O’Callaghan has cast strong doubt on whether he has sufficient evidence to sack assistant commissioners Mal Shervill and David Caporn over their roles in the wrongful murder conviction of Andrew Mallard," the story by reporter Joseph Catanzaro begins.

Mr O’Callaghan has written to the Corruption and Crime Commission asking it to clarify “certain matters” it referred to in its investigation into the Mallard inquiry. He said that after conducting his own inquiry, there were several issues needing clarification regarding the CCC report," the story continues.

"Mr O’Callaghan said that as part of his investigation, legal advisers raised questions about the material the CCC relied on to arrive at its findings. He said the CCC’s opinions were expressed “in the context of a different statutory framework than that which the Commissioner of Police must apply”.

In a CCC report in October, Commissioner John Dunford made two opinions of misconduct against Mr Caporn and four against Mr Shervill. The opinions were that the pair, then detective-sergeants, engaged in misconduct during the investigation and prosecution of Mr Mallard for the murder of Mosman Park jeweller Pamela Lawrence in 1994.

Mr Mallard served 12 years in jail before he was cleared.

Mr O’Callaghan is considering whether to sack the assistant commissioners or demote them.

“This is a complex matter involving large amounts of material,” he said. “In fairness to all concerned, I need to have confidence in whatever conclusions I reach and they must be based on fact. I cannot request an explanation from the assistant commissioners until I get some clarification from the CCC.”

WA Police Union president Mike Dean said Mr O’Callaghan may not legally be able to sack Mr Shervill and Mr Caporn because the CCC’s findings were “wrong in material facts”.

Mr Dean also said that unlike in a court of law, the CCC could use “hearsay” evidence to arrive at its findings. He said like any other employer, Mr O’Callaghan had a duty under law to examine all the issues and give the officers a right of reply before he could consider dismissing them.

“There’s a presumption these officers are going to be sacked,” Mr Dean said. “Based on the facts, they may not be.”

Mr O’Callaghan has confirmed he will not renew the pair’s assistant commissioner contracts when they expire in February. While under normal circumstances this would mean both men revert to the rank of superintendent, Mr Dean said in theory the Commissioner could demote the pair to the rank of constable.

Mr Shervill and Mr Caporn were stood down immediately and served with a written notice to defend their careers because of the CCC’s findings.

But it is understood the decision not to renew Mr Shervill’s and Mr Caporn’s assistant commissioner contracts was motivated by the fact Mr O’Callaghan could not afford to have the senior positions left vacant while the Mallard matter was being resolved.

A CCC spokesman said yesterday Mr O’Callaghan’s concerns would be addressed when his letter was received.

Mr Shervill and Mr Caporn were not available for comment yesterday."