Mallard Inquiry, Private Hearing, 28 June 2007 - Corruption and ...

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CORRUPTION AND CRIME COMMISSION
OF WESTERN AUSTRALIA
ACTING COMMISSIONER DUNFORD QC
TRANSCRIPT OF PROCEEDINGS
AT PERTH ON THURSDAY, 28 JUNE 2007, AT 9.45 AM
Counsel assisting:
MR J.P. GORMLY SC, with him MR P.D. QUINLAN
28/6/07 1
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CAPORN, DAVID JOHN:
THE ACTING COMMISSIONER: Sorry for the late start. I was
waiting for yesterday's transcript and there was a bit of a
delay in getting it. It still hasn't been filed but I have
got it; that's the reason. Yes, you may sit down. You are
still bound by the oath you took yesterday. Yes,
Mr Gormly.
GORMLY, MR:
Thank you, Commissioner.
Mr Caporn, I just want to follow some things that we dealt
with yesterday. Firstly, you will recall me asking some
questions about a Mr Pearce and a warrant on 25 May. Have
you been able to recall anything to do with Mr Pearce since
I asked you?---No.
All right. Secondly, following some discussions with
Mr Power this morning I understand that you have been able
to establish the relevant dates that you were as Eastpoint?
---Yes, I have, which were 27 February 06 to 21 May 06.
21st of?---Sorry, 21 April 06 inclusive.
All right. Can I just have those dates again the 20 - - -?
---27 February 06 to 21 April 06.
All right, thank you?---That was just myself and
Mr Shervill.
There was no-one else stationed in the office at that time?
---No.
Now, next - I have spoken to Mr Power about some documents
that you are going to endeavour to produce and I understand
it's not feasible for you to do it at the moment but if you
could maintain contact through Mr Power with us and perhaps
produce it in the next few days or whenever it is you can?
---Certainly.
If you do have difficulties for some reason, I would ask
that you let Mr Power know and let us know?---I don't
envisage any but I certainly will, thank you.
Thank you. May I take you next to some questions that I
asked you yesterday but in short form, and it was about the
work that you did on 6 and 9 June in preparation for the
interview on 10 June. Now, Mr Caporn, what I am after here
is as best you can a recollection of what you did on those
days but, more particularly, what you would do to prepare
for an interview of that type as at May June 1994.
THE ACTING COMMISSIONER: I'm sorry, Mr Gormly, that's not
quite clear to me and probably not to the witness. Do you
28/6/07 CAPORN, D.J. XN 2
(Closed Court)

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want him to tell us what he can recall of what he did in
preparation for this interview or what his general practice
is preparing for substantial interviews?
28/6/07 CAPORN, D.J. XN 3
(Closed Court)
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GORMLY, MR: I want both, Commissioner, so I'm going to
break that up.
THE ACTING COMMISSIONER:
questions, I think.
GORMLY, MR:
Yes, all right.
We had better have two
First of all, can you tell us what you did do on 3 June -
on 6 June and 9 June to prepare for the interview with
Mr Mallard?---I can only tell you what I read from the
running sheets in my examination that I've done with it
where it says things like that I examined all the
statements and the material that you read to me yesterday.
In respect of the latter question as to what I would've
done in 1994, is I would've reviewed all of the interviews
that I'd done with Mallard at Graylands. I would've
reviewed all of the interviews that I'd done with the likes
of Engelhardt, Kostezky, Smit, Buhagiar, which were all key
to his movements. I would've reviewed all of the
statements that were in about people who had been dealing
with Mallard in the previous few weeks in Mosman Park, and
there are names like Farmer that comes to mind and a whole
range of other people who had dealings with him. I
would've reviewed any material coming out of Cottesloe
police because they had arrested him a couple of times and
dealt with him on some offences. So basically anything I
could get my hands on that was to do with Mallard.
All right.
THE ACTING COMMISSIONER: Just in relation to the
statements, the ones made by the other witnesses, there
were a number of them, weren't there, and at that stage, at
6 to 8 - 6 and 9 June you only had their original
handwritten statements, did you not?---Yes.
The typed statements, which had some differences - - -?
---Yes.
- - - only came later?---Absolutely.
Yes, thank you. Yes?
GORMLY, MR: Did you in addition to the handwritten
statements also have notes that had been taken by for
example Mr Emmett or yourself when you first saw the
witnesses but did not take a statement, and as an example I
would suggest Ms Engelhardt where you saw her I think on a
day prior to actually taking a statement from her?---Look,
no doubt. Even the material you showed me yesterday, I
would envisage - I don't recall but I would envisage I
would've had those with me as well because if we were using
the statements and I attached those to the statements I had
so would've had them as well. So I would've had all of
28/6/07 CAPORN, D.J. XN 4
9.48 (Closed Court)
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that material with me.
Right. Would you - - -?---That's not a recollection.
That's my belief.
Sure. Would you also have had access to Holmes material?
---Not as in electronically looking at it.
Right?---It would be far more likely the Holmes material
that I would've had would've been the actual printed-out
actioned items with details.
28/6/07 CAPORN, D.J. XN 5
(Closed Court)
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Right?---There might've been ones that have already been
written off with the detail. I would've thought that I
would've had material like that, yes.
Mr Caporn, I'm going to ask these questions from a position
of complete ignorance?---Sure.
I infer from what we saw yesterday that there is a form, a
Holmes form, on which people will handwrite a message of
some kind and that that is then typed into the computerised
system, Holmes system, but one can then print out - search
and print out whatever it was that was handwritten and
subsequently data-entered. Is that right?---You're
absolutely correct.
THE ACTING COMMISSIONER: Was the position in 1994?---Yes.
The only aspect that I'll clarify is that no investigator
would go to the Holmes system and search it. We would be
given by the Holmes staff the action item in our hands, the
hard copy. There wouldn't have been one occasion where I
would've got in front of the Holmes system. Why? Because
I couldn't use it in 1994. It's a very complicated system,
let me tell you, and I definitely had no user knowledge of
it in 1994.
GORMLY, MR: If you wanted to search and get a printout of
something on Holmes, how would you have done it?---I'd
approach the Holmes staff and I would request it from them
and they would furnish me whatever I asked for.
Was that difficult to do?---No, not at all.
Could you get more or less immediate access to information
that was in the Holmes system by doing that?---Absolutely
but what must be understood is that it's designed to run
live; in other words, as information is received, it's on
there, but in real terms it doesn't; for example, it might
be in handwritten form days before it ends up onto the
computer.
So there was that problem of just a delay on data-entry?
---Yes.
All right. I suppose investigation team meetings would
keep you aware of whatever the latest material was that
hadn't yet got onto Holmes?---It's probably the most
important single source of obtaining information - - -
All right - - -?--- - - - the team meetings - - -
How often were they occurring?---Every day. Sometimes -
early in the investigation there would've been more than
28/6/07 CAPORN, D.J. XN 6
9.51 (Closed Court)
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one a day. As the investigation proceeded one a day; weeks
in, it would've got less.
Were they all run by Mr Shervill?---Yes.
28/6/07 CAPORN, D.J. XN 7
(Closed Court)
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So having got this material together, and presumably read
it, what would you then do to further prepare yourself?---I
would and did, and I know I did because it's in my
evidence, formulate a strategy as to how we would conduct
the interview and it's a matter I have given evidence on
and I have reread that evidence so I can tell you from -
not from my recollection now of 1994 but from my reading
the evidence I gave in 1995 in about four different forums.
1995 being during the trial?---Preliminary hearing, voir
dire, trial. I gave various evidence about this issue.
All right. Did you actually - when you say you prepared a
strategy, was that in writing?---No. Well, it would be
wrong of me to say no because I don't know. I don't know
whether I did or not.
What was your practice at the time?---I mean, I really
can't remember. I mean, look, I would be surprised if I
hadn't made some dot points to prompt myself. I would be
really surprised if I haven't because that's the way I am.
Yes?---You know, I would go through things in a systematic
fashion and I would be very surprised if I didn't make dot
points about it.
Right, and you would have taken those with you into the
interview?---Quite possibly but I don't know.
Next; on the first four occasions that you went out to see
Mr Mallard, they were all at Graylands Hospital, and I
think on at least two of those occasions you saw Dr O'Dea
who was in charge out there. Is that correct?---I saw
Dr O'Dea and I saw Dr Srna on one occasion.
Another psychiatrist at the Graylands?---Yes. Yes, I think
that was on the first search warrant.
Did you, prior to 10 June, have access to the Graylands
Hospital clinical notes in relation to Mr Mallard?---I
don't think so, no.
Did you ever; that is, his treatment notes, treatment file?
---Later on we got access to the - what I believe to be the
nurses' notes, the notes made by them on a day-to-day
basis. I don't know that I - other than his reports, I
don't know that I've seen psychiatrist notes. I've seen
reports from Dr O'Dea, which were furnished in court in the
voir dire I believe, but I don't believe I've ever seen his
actual notes - but I certainly have seen at some stage
notes made by the nurses on a daily basis.
28/6/07 CAPORN, D.J. XN 8
9.54 (Closed Court)
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How would you have got access to them and when?---I don't
know. I can't remember when I got them but I've definitely
seen them.
Was it before Mallard's trial?---I would suggest it
would've been, yes.
Was it before either of the major interviews on 10 and
17 June?---I would extremely doubt that. I can't say for
sure but I would suggest it would be somewhere after maybe
even charging him and the court or perhaps in that period
between 17 June and July when he was charged, 19 July,
because that was a period of gathering whatever was
available to make an assessment.
All right?---But, look, I'm speculating.
Sure. How would you have got them other than by warrant;
that is, how would you have got access to a patient's
records other than by warrant?---Look, there is only two
ways we would've done it. We would've asked for them or we
would've taken out a warrant or both. I just don't recall
what we did.
In those days, in 94, if you'd asked for them from
Graylands Hospital might they have been provided?---They
may have been. Remembering - as I understand it, we didn't
have the doctor's notes. We had the nurses' day notes. I
believe that's what we saw.
Was there in place in those days a system for obtaining the
consent of a patient for the release of treatment notes or
clinical notes, progress notes?---Not that I'm aware of.
What information is it that you recall that emerged from
the nurses' notes that causes you to remember having got
them?---A bit of detail on the assault on the nurse, a bit
of detail supporting his attitude when we attended because
in court he's made lots of allegations about Graylands,
lots of allegations, and there's a lot in those notes that
support police in respect of the actions that we took and
absolutely disprove what he said.
What specifically are you referring to there?---He said
that we only ever executed one warrant at Graylands. He
talked about his attitude on occasions that was in
opposition to our version of what his attitude was and
the - - -
What do you mean attitude?---Demeanour; demeanour. You
know, like there was one occasion when I went out there
with Mr Emmett; I think it was one of the search warrant
occasions, and he was going - he was going off basically.
He was very angry, very upset. Whatever he was upset about
was something before we got there. He was already in
28/6/07 CAPORN, D.J. XN 9
9.57 (Closed Court)
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that attitude when he got there and he made - during that
time he made a number of provocative comments, which of
course were recorded by us and later given in court, and he
disputed a number of those; in fact if you examine the
evidence as I have, and I'm not being disrespectful because
I know you would have - - -
That's all right?--- - - - he has - Patrick Hogan in the
trial has actually gone through basically line by line with
me of my whole evidence and he's saying, you know, "You
said this. We're saying that," basically and I've - I've
reviewed all of that.
28/6/07 CAPORN, D.J. XN 10
(Closed Court)
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THE ACTING COMMISSIONER: Was there anything in the
nurses' notes or the other documents that you saw from -
you saw other documents from Graylands besides the nurses'
notes, I suppose?---The only documents I've seen from
Graylands other than the nurses' notes is the report
furnished by Dr O'Dea in the voir dire.
Did you not look at his medical file at Graylands - when
you went to Graylands?---No. It's my understanding we have
never had access to his medical file. My understanding
is - and again this is on - on my understanding. My
understanding is we only got the day notes.
The day notes?---Yes.
Was there anything in the day notes about his mental
condition?---Not deeply. They were daily, about his
demeanour daily; about some of the - for example, and I'll
use a loose example, there might be a comment in there
like, "Making grandiose statements," or something like
that.
Yes, that sort of thing?---Yes. Yes.
Which - and you read those, I suppose in the sense that he
was making claims that were untrue?---Yes.
I think he made some claims to you that you knew to be
untrue, did he not?---Yes. Certainly, sir.
Such as did he tell you that he had worked for MI5 or
anything like that?---Certainly, a lot of things like that,
yes.
Like that?---Yes.
Things like that?---Yes.
Was there anything in the notes that you saw that contained
any suggestion of a diagnosis of what his mental condition
was?---In Dr - only in Dr O'Dea's report.
Which said what, that he was bipolar, was it?---Yes.
What else?---Well, it had a lot of information supporting
that.
Yes?---About prone to living in a life of fantasy.
Yes?---Grandiose statements. Covered some of the stuff
that - examples of that.
28/6/07 CAPORN, D.J. XN 11
10.00 (Closed Court)
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Not to put too fine a point on it and using non-medical
terms, would it be fair to say that the information you had
suggested that at times he was virtually off the planet?
---Yes.
Yes, Mr Gormly?
GORMLY, MR: In the course of your going - - -?---Sorry,
there is one other thing.
Yes?---Now, I - I certainly did this in the period also.
One of the biggest issues that we had with Mallard - and it
has rightly been pointed out here - is sorting out fact
from fiction and at the time I consulted with Dr Aaron
Groves who was a psychiatrist who I worked with on this
investigation and I ended up working with him on a number
of investigations.
Afterwards?---After - after this.
Yes, what about before?---It's possible. I'd only been at
major crime for a couple of months.
28/6/07 CAPORN, D.J. XN 12
(Closed Court)
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All right?---So it's possible but, anyway, the idea of
seeing Dr Groves, and I saw him a number of times according
to the running sheet - the idea there was how do we work
out what's true and what's not true with him. So it was
independent of the person who was treating him; it was
reliant obviously on my briefings of my observations and
the information I had gathered to Dr Groves and then
Dr Groves would give me his opinion as to what he thought
and, again, it was about okay, how do we work out with this
guy what's fact, what's fiction.
Can I just take you to the discussions you had with
Dr O'Dea when you went out there on those first four
occasions?---Yes.
Did you discuss with Dr O'Dea what Mr Mallard's mental
state or diagnosis was?---Okay. The first time I went out
there I saw Dr O'Dea first. I had made an appointment to
see him - and this is all in my evidence, I have reviewed
it. My point was, "What can you tell me, doctor? What can
you tell me about Andrew Mallard? Is it all right if I
speak to him? Is there any issue with me speaking to him?
This is what we're about. This is the crime we're
investigating." Now, what he told me - and I know this
from my review of my evidence - he is basically - I hadn't
had the chance to have a look at him yet; quite happy for
you - - -
That is, you hadn't physically seen him?---No, we hadn't
and he hadn't. At the very first time we went out there he
had not started his - he was, you know, basically just
starting his process of - - -
You mean Dr O'Dea was?---Yes.
Right?---So we hadn't seen Mallard at this stage; we're
talking to Dr O'Dea first at Graylands Hospital.
Right?---So O'Dea gives us the green light to interview
him. We ask for a nurse to be made available to be
present. We don't really get anything off him about -
because he's not done his diagnosis, he's not done his
interviews with him, et cetera, et cetera. So then we go
across to the Frankland Centre and we conduct a first
interview.
Frankland Centre is the secure part of Graylands Hospital?
---That's correct, and we conduct the first interview.
On that occasion had you even seen a photograph of
Mr Mallard?---I probably had, I would suggest. I mean, I
can't recall that but there were photographs in existence.
I could quite well have seen it.
So at that point when you went to see Mr Mallard the first
28/6/07 CAPORN, D.J. XN 13
10.03 (Closed Court)
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time, 26 May, three days after the event?---Mm'hm.
You did not have a diagnosis?---No.
Is that right?---Mm'hm.
But he was in a mental hospital so I take it that you
probably reasonably assumed that there was some basis for
him being there?---Yes.
Some basis in mental health?---Sure. Yes.
Did you get any indication from Dr O'Dea that that was so?
He hadn't examined him but that he had sufficient
information to say that there was something wrong with him
or not?---No, but I take your point and I certainly would
have thought "this fellow's in Graylands, there are some
issues".
Sure?---I don't walk away from that at all, no.
Right?---But, look, at that stage I know that he told me,
and I have reviewed my evidence, that at that stage he had
not done his work but he wasn't unhappy for us to interview
him.
Sure. What was your impression after interviewing
Mr Mallard on that first occasion as to his mental health?
---He handled himself pretty well in the interview. That's
supported by the nurse that was there.
But I'm just asking your own impression at that stage?
---Okay. My own impression of him was as a scallywag; that
he was strange - and he gave me an account of where he was
and I'd go away and follow it up and see if it was true. I
mean, that's probably as limited as - about as far as I
could take it.
But he gave you at least an account?---Yeah. I mean, he
was very confident in the interview with what he did.
Did that view alter over time as you - - -
THE ACTING COMMISSIONER:
Which view?
GORMLY, MR: That is, that he was able to give you an
account that you were able to go off and follow up?---Yes.
Thank you, Commissioner, that's right.
28/6/07 CAPORN, D.J. XN 14
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THE ACTING COMMISSIONER: In other words, the account made
sense although when you checked it out, no-one else
supported it. Is that right?---Yes.
GORMLY, MR: All right. I think I will just take you to a
document, Mr Caporn, and you tell us when you saw this.
Could I have E13695?
I'm about to show you a document you will have seen before.
It's the statement of a Detective Senior Constable Robert
John Kirby. Do you recall that?---I know there was
something with Kirby in dealings with Mallard before about
some information he gave, yep.
Yes, all right?---I've not looked at it but in my research
again - - -
All right. Just take a moment to read it. It's very
short?---Yeah. Can I go to the next page?
That's it?---Yeah, okay. Fine; I've definitely see that
before.
All right. This is about an event that occurred on
Tuesday, 17 May 94?---Yes.
So it's really six days before the assault on
Mrs Lawrence?---Yes.
But it is in Glyde Street?---Yes.
Did you ever speak to Senior Constable Kirby about this
event?---I don't recall whether I spoke to him personally,
no.
Do you know him?---I do know Bob Kirby, yes.
Did you know him back them?---I know of him. I didn't know
him.
Do you know when you first saw this statement or heard of
this account anyway?---I can't say for sure but this is -
this is the sort of knowledge that we had around the time
of interviewing Mallard at Graylands, and I think in the
first interview or one of the interviews Crannage's name
comes up with me.
Yes?---Crannage was out of my police academy.
Can I suggest to you that you probably had this information
before 10 June?---I mean, I would accept that on face
value. I mean, I don't - I can't say for sure.
28/6/07 CAPORN, D.J. XN 15
10.08 (Closed Court)
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I'm not saying you did. I'm just asking you to agree that
based on what happened on 10 June, the probabilities that
you saw this information?---Yes, I would think so.
All right?---Yeah.
Do you think that you saw it while he was still in
Graylands? You don't know?---I just don't know.
All right. We have in this report of course an event of -
the only point of which is that a man approaches the police
officers and claims undercover operative status for
Interpol, MI5 and MI6. There's really nothing else in the
statement of note. Do you agree? That seems to be the
point of the statement?---I agree.
It doesn't seem to be an event that has occurred because
the police approached Mr Mallard. He seems to have come up
to the car?---Yes; yes. Plain-clothes detectives - I don't
know why he would approach that car and how he would know
but - - -
THE ACTING COMMISSIONER: He made a mistake approaching
that car. Sorry, no; he must have - no; he must have
realised they were detectives?---Yeah, and they were
organised - I think they were drug squad and drug squad
wouldn't dress like detectives, so I questioned - no
knowledge of this, Mr Gormly, but I questioned how this
contact happened.
GORMLY, MR: Yes?---I had in my head somewhere - and I
don't know where from - that he'd contacted and asked for a
meet.
All right. I suppose it would be interesting to know how
that contact occurred?---Yeah.
I guess the significance from your point of view at the
time was that it suggested somebody who was spinning a
story that was extraordinarily unlikely?---Yes, and I think
some of the information that he gives is similar to
information that Michelle Engelhardt had already given us.
Yes. It's consistent with that?---Yes, and others; and
others.
Over those days after the first interview on 26 May did you
get a diagnosis from Dr O'Dea?---No. Each time before we
went to Graylands we advised them ahead of time. I might
not be correct in this but my understanding of contact with
the doctors is O'Dea the first time before we saw him, then
I think the only contact we had with them as far as like to
face-to-face talking about Mallard was Srna when we turned
up with a warrant and that was more about, "I want to bring
these" - I think I had forensic guys with me who had
28/6/07 CAPORN, D.J. XN 16
(Closed Court)
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material they wanted to search. They searched all of their
material, that sort of thing, before they had let them in.
Then I had contact with O'Dea I believe near the release
time - I can't say for sure - and then that was it. So I
never - the only thing I got, and this is picked up from
the material that I have reviewed, is that Mallard was
going to be released and that he wasn't required to be
forcefully kept and under medication.
28/6/07 CAPORN, D.J. XN 17
(Closed Court)
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All right?---That he was suitable to be at large and could
attend for voluntary treatment as required.
All right. Did you get a diagnosis from Dr Srna?---No.
Dr Srna was really - the contact with Dr Srna wasn't really
into about Mallard, it was about "we want to execute a
search warrant on your premises" and it was all about who
are you, what have you got, who are these guys, what's all
of those boxes that their bringing in? I remember one
thing - I even remember now - is that when we went through
their security they searched all of the forensic kits
because I think on - well, I know on the occasion that we
saw Srna we had a couple of forensic guys with us.
All right. Anyway, you didn't get a diagnosis from
Dr Srna?---No. No.
Were you seeking a diagnosis from either doctor?---We were
seeking to know as much information as we can about
Mallard, no doubt about that, and - yeah, so.
Would you have asked for a diagnosis?---We would have
definitely asked for a diagnosis from the very first time I
went there; in other words, what can you tell us about this
person? You know, what do you know about him, what does he
do, what makes him tick - all of those sorts of things.
Yeah, we would have sought that information, because
obviously it was like going to see Dr Groves, any
information that he could give me or Mark Emmett would
enable us to get the truth.
All right, we will come to Dr Groves because he's connected
with the undercover operation as well - - -?---Absolutely.
- - - and I'm going to ask you some questions about that in
due course?---Yes.
Up to 10 June was the position that you knew he was in
Graylands, you were aware that there was considerable
oddity about his behaviour, that he was engaging in
self-aggrandising statements, grandiose statements; making
claims that were either patently untrue or extraordinarily
improbable and engaging in statements of fantasy such that
it was clear that some were fact and some were fiction?
---Absolutely.
THE ACTING COMMISSIONER: And that he had some form of
mental illness?---Yeah, I mean - - -
Would that be right?---There was something mental with him.
I mean, the word "illness" "disorder" whatever, I mean, I'm
not an expert but I don't disagree with any of the
statements you made.
GORMLY, MR:
Now, can you tell us when you say that you
28/6/07 CAPORN, D.J. XN 18
10.13 (Closed Court)
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had to sort out fact from fiction it suggests that you
regarded some of the statements that he would make as being
statements you couldn't rely upon?---Mm.
Was that a factor that you - that played on your mind when
you were interviewing him on 10 June?---Most definitely.
In what way?---Well, I felt like anything that he gave me I
needed some validation of it; you know, what could I get to
tangibly validate anything he said. So I mentioned I had a
strategy for interviewing him, I have given evidence about
this so I know what that strategy was, and all the time it
was about trying to get something that I could validate
because - - -
THE ACTING COMMISSIONER: Is that the strategy in a
nutshell or was the strategy more detailed than that?
---A little more detailed than that.
Could you tell us what it was?---The strategy was to
basically get him comfortable and then run through with him
everything that we had been through about, you know,
meeting Michelle and the things he was doing and his
movements right up to and after Pamela Lawrence's murder.
28/6/07 CAPORN, D.J. XN 19
(Closed Court)
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The first time to do that, sir, it was not to challenge him
about it. You know, we challenged him about various things
in the previous interviews but this time just let him tell
us the whole deal again, go right through it from start to
finish. Then see what we get out of that. Then get him to
start again; to go back, start again with it, but this time
as he come to a point that we had an inconsistent statement
with from a witness or plausibility, whatever the case may
be, to stop him and put that point to him and to see what
he had to say about that. So that was pretty much the
strategy that we locked in on. Anything beyond that was a
life of its own basically as the interview evolved. We had
a number of breaks so we could assess, look at it, think
about it and - and then continue to the next phase of the
interview. If that makes any sense.
GORMLY, MR: Yes. You were in effect not prepared to rely
on - I'm going to put this as a proposition for your
comment, Mr Caporn?---Yeah.
You were prepared then not to rely on anything that
Mr Mallard said, you wanted corroboration or other evidence
of some kind and you're questioning him for ways in which
to get it?---Absolutely.
And that was because, was it, you were regarding him as an
unreliable witness?---I mean, the basis of any interview is
that we want - you know, we're meeting - all the time
meeting people for the first time or second time or third
time we want to try and firm up what they say, so that's
the basis of any interview. This witness was even more so
because of the - the stories that he told and - you know,
and with Mallard everything contained truth. So if this is
the information that's given you find this, that's
absolutely true and that bit there might be littered
through it and that's why, in my mind, taxi drivers and
people like that were done by him so many times because
he's very good at it. Whatever he had, he was very good at
that.
Let me just take you to some of the practicalities on
10 June?---Sure.
You told us late yesterday afternoon that you had used the
front interview room?---Yes.
That it had video equipment?---Yes.
That the video equipment was functioning?---Yes.
That neither it nor any other form of recording material
was used, and I think - is that correct?---Electronic.
There was - - -
Electronic, yes?---No, no electronic material used at all.
28/6/07 CAPORN, D.J. XN 20
10.18 (Closed Court)
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And the recording system that was used was having Mr Emmett
write down what was said and I think that's what he had
done in the previous four interviews at Graylands?---That's
correct.
Can you just tell us, Mr Caporn, about that record now -
how it was arranged between the two of you, what Mr Emmett
physically did? I want you to assume that we have looked
at the original notes and we're aware of the red
over-writing and I think in places pencilling?---Yes.
Then eventually at the end of the interview there is a
version that becomes typed, at least in the form of your
deposition?---Yes.
Can you describe for us from beginning to end, starting
with the arrangement between you and Mr Emmett for the
taking of those notes, how that occurred?---Okay, and again
here I'm not - I can't recall every single aspect from,
"Hey, this is exactly what happened," but my understanding
from my practices is that right from the start it's the
first time I ever worked with Emmett, first time I ever met
him so I would've outlined to him my requirements for
certain things. I certainly would've outlined with him my
requirements before we went in to interviews as to who was
taking notes, who was taking statements.
All right?---Because I'm not a - I certainly wasn't a
person at that stage that meant, "You're the junior man,
you're always doing this and I'm always doing that." But
with Mallard, what we do know is that I did the interviews
and he took the notes.
All right. So what would you have said to him were your
requirements for the purposes of these notes in these
interviews?---Right from the start I would've said to him
that this is the format I want to use, "Make sure you
take - - -"
But what would you have said was the format?---That he
would - I would ask the question, that he would write down
what was said and then when the response come that he would
write that down; that I would use hand signals and - and
stop any person who we interviewed who wanted to go too
fast - "because I would keep an eye on you to look after
you when you're taking the notes."
28/6/07 CAPORN, D.J. XN 21
(Closed Court)
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Yes?---What else I told him I don't remember beyond that.
He was detective so, I mean, we're not dealing with a zero
base here but, yeah, there's no doubt we would have
discussions about how that was to take place. There's no
doubt there would have been - - -
I'm sorry, I'm just going to stop you?---Yes, sure.
We need to do this step by step, Mr Caporn, just so that we
can pin this down?---Sure.
And have a clear understanding of what it was that was said
and done. As I understand it, prior to the interviews you
would have said to Mr Emmett certain things that were your
requirements for the interview process?---Yes.
One of them was that he was going to be the scribe and you
would be the questioner?---Yes.
Secondly, that you wanted both question and answer written
down?---Yes.
Thirdly, that you would assist him in that process by
maintaining a control - an eye of his note-taking and a
control over the speed of the interview so that he could
get it all down?---Yes.
Was there anything else?---I would suggest I would have
also asked him not to do it in pad form with the actual
notes. He could make jottings if he wanted on pads but
with the notes don't make it in pad form - - -
What do you mean in pad form?---Don't do it on a pad, don't
do it on top of one another because you get to page 5 and
you can't - they're hard enough to read as it is - don't do
it, don't write on top when you're doing notes because if
we do an interview that goes for half an hour and we've got
20 pages of interview and I'm trying to read and make out
what's been said on page 10 you can't read it because it's
been written on top of. So there would have been some
discussion about using - not writing on top of the next
page. Do you understand what I'm saying?
No, I don't, I'm sorry. I think I do. Do you mean you
wanted him to tear the page off?---Either tear the page off
or use just loose paper. So, in other words, if you've got
30 pages here don't do them on top of one another.
You mean don't have all of the pages stacked on top of one
another?---Absolutely.
Right?---Because we're going to get down to page 10 - I
mean, these notes are very hard to read, very hard to read
- not my red writing but the blue writing. If you do them
on top of one another by the time you get down any
28/6/07 CAPORN, D.J. XN 22
10.23 (Closed Court)
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distance, and this is through my experience as an
investigator to that date, you can't read it. You can't
make head nor tail of it.
Why, because there's impressions coming through from the
pages above?---Exactly.
Do you mean ink impressions or just indentations in the
paper?---You can have both, depending on the pen.
What was the problem from your experience that you wanted
to avoid?---You can't read them. They're very - they're
hard enough as it is and if you do things like that it
makes it almost impossible.
I'm just asking you to be specific here, Mr Caporn. By the
time you get to page 10 what is interfering with the
reading of the notes?---The multiple indentations of -
because when someone's writing quickly, as in the note
stage, and you're writing - and he writing, like, jet speed
even though I am doing this sort of thing - he is writing
like jet speed; if you start to create grooves on the page
then pens naturally fall into those grooves and take
different directions than a normal writing.
All right, so that was an instruction to him?---I mean, I
can't remember that being an instruction but I would be
surprised if it wasn't and I might not have gone into all
of the detail I just told you, I would have said, "This is
how I want you to do it."
On any view, this was going to be a detailed interview?
---It was going to be an interview about where he was,
yeah.
Well, you had already done that out at Graylands?---Sorry,
you're talking 10 June now.
Yes?---Absolutely.
This was to be a major interview?---It was to be a - yeah,
it was to be significant interview.
Right?---You know, major, significant; it was going to take
a while because to go through with him once and then put it
to him the second time - even that in itself is going to
take a few hours.
So whatever happened you knew there were going to be a lot
of notes?---Absolutely.
Did Mr Emmett agree to that process?---Yes.
Do you recall - - -?---I certainly don't remember him
disagreeing, no.
28/6/07 CAPORN, D.J. XN 23
(Closed Court)
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Do you recall him raising with you any concerns about speed
or keeping a detailed note?---I know - I know it was very
difficult for him.
But he did?---He did it, yeah.
Of course he had already had a few practices out at
Graylands before he got to the major interview of 10 June?
---And practices with Mallard too, which is - see, one
thing with Mallard is that he - and most people do this -
they learn from the behaviour. So, for example, when we
were at Graylands the way I slowed him down, it would have
been far easier to do it on 10 June because as soon as I go
like this he knows exactly what I'm doing and he stops and
watches Mark and then sometimes you'll get him doing the
same thing. I mean, that's the nature of the interviews.
That's what happens, you know, and certainly that was - no
problems with Mallard. There were other times of course
where he'd run off and I'd have to do this, you know.
28/6/07 CAPORN, D.J. XN 24
(Closed Court)
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Would you say, "Stop"?---Look, it's possible. It's
possible that I've - certainly in the first interviews I'd
say, "Hang on," you know, something like that. What I
actually said I can't remember. It would've been, "Hang
on," and I would've been - "Hang on."
All right. You have done that - you are holding up one
hand - I'm doing this for the transcript, Mr Caporn. You
are holding up one hand in a stop sign?---Yes.
And you are pointing with the other hand presumably to
Mr Emmett - - -?---Emmett.
- - - noting things down?---Absolutely.
That's because you are keeping an eye on what Mr Emmett is
doing?---Absolutely.
Because your concern is to make sure that it all gets
down?---Yes. If he gets two questions behind, we're in
trouble.
Your endeavour in this exercise was to make sure that every
word that's said ends up on the paper?---As best we can.
Words may get missed?---Yeah.
Essentially you wanted every question and every
answer - - -?---Yeah.
- - - down. Is that right?---Yes.
Is that what happened?---As far as I recall, yeah.
You had an opportunity anyway, judging from the pencilling
and the red marks, to check the notes that Mr Emmett was
writing?---Sure, yeah.
And you did so?---Yes.
Can you tell - I have interrupted you now with questions.
I really wanted you to just tell us what it was that
happened but I think we have that first part now. Can you
carry on for us and tell us the balance of the process?
---So when we had breaks, and there were seven breaks on
10 June, we would straightaway start looking at the notes
of the previous things. Now, there were a number of
reasons for that; there was (1) to validate them - - -
What does that mean?---While it's fresh in our memory,
while I've just done this interview, to go back and have a
look at them to see that they are actually a reflection of
what has been said.
28/6/07 CAPORN, D.J. XN 25
10.28 (Closed Court)
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Yes?---The second aspect was to - for me in particular, to
take in what he was saying. What has he said?
Right?---What has he said? What hasn't he said? What does
this mean to us? Where do we go next - you know, dah dah
dah dah - is the basic process? So then we go back in for
the interview, we continue on, any break we do our best in
that time to examine what's been said in the previous
segment. It may be that we'd have to go back to the first
segment, whatever, but that's the nature of the beast.
So in those breaks Mr Emmett would give you the notes,
would he?---We'd probably sit down together and look at
them. We'd probably sit at a table or a desk or somewhere
and sit there and look at them together. He wouldn't go
away normally. We would be doing that together because he
might be able to - I might be able to say, "What this?" and
he'd say, "Well, dah dah dah." Not a recollection but, you
know, that would be a standard call.
There's both pencil on some notes of these interviews,
these various interviews, and red writing. Can you tell us
about the pencilling first?---I think the pencilling - and
I haven't seen the original notes for some years - - -
Yes?--- - - - since they were handed over - can I say I
maintained these notes with me for basically I think up
until the CCA in 2003?
Yes, you told us that yesterday?---Okay. The pencil I
believe is related to writing in missing words which
would've been done in the carpark at Graylands; you know,
filing in the gaps of joining words and things like that if
we were confident that they were - that that was what was
said, a true record. The red writing which is on all of
them is a practice that I adopted, as did I think just
about everyone else at major crime at the time, and the
concept was about thinking ahead down the track and
again - - -
About what?---Thinking ahead.
Yes?---Again I reiterate from experiences about the
difficulty in dealing with notes, it is a huge difficulty.
It's very difficult in court. The practice that we adopted
here - and in fact in all of the interviews that I've done
since then, I've adopted exactly the same process - is to
go back over the notes and in my handwriting over a period
of several weeks just repeat what's already on the page in
my handwriting or printing in red.
All right?---Why? So I can read it when it comes to a
trial or an examination or whatever the case may be.
28/6/07 CAPORN, D.J. XN 26
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As I look at your notes, the notes taken by Mr Emmett at
each of the interviews and it sounds as though you are
aware of this, Mr Caporn, there's pencilling on the
Graylands Hospital notes?---Yes.
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There's also red writing?---Yes.
But in the 10 June notes we go from blue straight to red?
---Yes.
There is no pencilling?---No.
Can you tell us about that?---Only that we didn't pencil in
joining words; you know, we didn't pencil in joining words.
I mean, that's what - I haven't looked at these notes for a
few years but that's what you'll find on the - on the ones
at Graylands: we pencilled in joining words.
All right?---If we didn't do that on 10 June it doesn't
surprise me. It's a different situation, there's more
pressure because it's - the difference between the - I can
say this. The difference between Graylands and this one is
the Graylands pencilling is done afterwards. There's not
the same pressure. In the - in the 10 June it's a live
interview, they are done live and it doesn't surprise me
that we didn't pencil in anything.
All right. Let's just deal with the Graylands pencilling
first, and when you say it was done afterwards do you mean
in the car afterwards, back at the office the next day?
---I'd say in the carpark. I think I recall from my
evidence - when reading my evidence again in 95 for the 95
evidence that we did it in the carpark. I don't remember
us doing it in the carpark but I gave evidence on it in 95
and so did Mark Emmett.
So would any additional writing have occurred other than
Mr Emmett's writing on 10 June?---Yeah. Other than
Mr Emmett's writing?
Yes?---But is there the potential - and I don't know this,
but there's a potential that he wrote in other words in the
breaks, in the same pen he used for - for the actual taking
of - - -
I accept that, Mr Caporn, but I was really asking about
whether you put any of the red writing on during the
breaks?---No.
All right, so that when you were looking at the notes
during the seven breaks on 10 June - - -?---Yep.
- - - is it the case that you were simply reading them?
---Yeah, reading - we'd have discussed them too I would
suggest.
All right?---Read them and discussed it, you know. What we
discussed I don't know, but - you know, my sense is from
experience that we would've: "What did you think of that?
What do you reckon about that?" See, the other thing is
28/6/07 CAPORN, D.J. XN 28
10.33 (Closed Court)
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too with these things and it's so hard when you're trying
to back-capture but there is no doubt there would've been
stuff that Mark knew and stuff that I knew, you know, so -
"What do you remember about that?" you know, as in, "Does
that make any sense to you?" "Yeah, I know because of the
briefing the other day, person such-and-such said this."
Hypothetically, you know?
Yes?---Or - or I might have knowledge that Mark hasn't got.
Does that make any sense?
Yes, I understand what you're saying?---Yeah. Okay.
Can you tell us then at - I'm going to jump to the end of
the interview?---Sure.
There was the event occurred which terminated the interview
when Mr Mallard bit you on the thigh?---Yes.
That seems to have brought the interview to an end?---Yes.
Mr Mallard hasn't signed the notes of this interview?---No.
Can you just tell us about whether you would normally have
had him sign them?---Probably not.
What's behind that?---Just the practice at the time. There
were no - I would, you know, unless I got him to read them
all I wouldn't have got him to sign them and the chances of
me getting him to read them all would not happen. If - if,
hypothetically, the man confessed and then we took him to
video, I would've used them in the video interview or at
least discussed them. May have got him to sign them, I
don't know; maybe not. Probably not, but yeah.
THE ACTING COMMISSIONER: So was it not the practice in
Western Australia in 1994 to have persons sign notes of
their records of their interviews?---Records of interview,
yes, but not contemporaneous notes. Record of
interview - - -
How do you define the difference?---The difference of a
record of interview in that era used to be a typewritten
form. We would put the names - you would've seen
them - - -
Yes, I have seen them in New South Wales?---You know.
Yeah, you put the names, Q:A, Q:A, and you type in the
questions and then you - - -
Yes?---And then they answer and then you type in the
answer. That formal - that's a formal record of interview.
28/6/07 CAPORN, D.J. XN 29
(Closed Court)
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Yes?---If you ever did a formal record of interview you
would get him to sign it, most definitely, and if they
refused you would do whatever you could to capture that.
With contemporaneous notes, no, it just wasn't a practice.
So when would you do a formal record of interview and when
would you do an interview with contemporaneous notes? Was
there a - what's the - - -?---Okay. Records of interview
were basically phased out. What would have happened is in
any interview prior to the introduction of even having
video facilities in WA you take your contemporaneous notes,
a person confesses, then you say, "Right, now I would like
to get a record of interview," and you would go to a record
of interview. By 94 the practice was do the same thing but
the second part would be on video.
I see. All right.
GORMLY, MR: All right. Mr Caporn, on the notes I want
you to assume that there's some blue writing that says,
"I/the interview conc." - which seems to be concluded -
"2110." That is 10 past 9 in the evening. Does that
accord with your recollection?---Yes, from reviewing that.
THE ACTING COMMISSIONER: You're looking at a copy of your
notes at the moment, are you?---Sorry, sir, I've just got
this piece of paper with the dates that I gave earlier. I
haven't got a copy of my notes here, no.
Could I have a look at that piece of paper?---Sure. It's
the dates of when I was in Eastpoint Plaza with
Mr Shervill.
I see. Right. Thank you?---That's just me thinking - - -
That's all right. That's all right. I just wondered what
it was?---Do you want me to - is this distracting you? Do
you want me to - - -
No, no, no.
GORMLY, MR: What happened after 9.10 that night?---Okay,
now, I can't put these in order but it wasn't too far after
that that I went to hospital. John Brandham took me, I
remember that, and there are some things I clearly remember
about that. I know - and I only know this from things
later - that Mal Shervill went in and spoke to Andrew
Mallard and returned property to him. I know that Andrew
Mallard was charged and lodged in the lockup for an assault
on me. I know later on I came back and met with Mark and
looked at the notes and finished off whatever we had to
finish off with those.
What was that?---Well, that would have been like anything
that didn't get captured at the end there. It would have
28/6/07 CAPORN, D.J. XN 30
10.38 (Closed Court)
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been like any review that we needed to do of the final
segments of that interview because the last couple of
segments, for example, was only shorter breaks and - plus
they were the most unusual and significant and so I would
be amazed if we didn't talk about that. I don't recall it
but we would have for sure. So, yeah, that's pretty much
what happened.
THE ACTING COMMISSIONER: And did you discuss with
Mr Shervill or any of the other detectives that evening or
early the following morning whether Andrew Mallard should
be charged at that stage?---I don't think - absolutely
there would have been discussions.
Pardon?---There would have been discussions but I don't
think the discussions were around - I am almost certain
that the discussions weren't at the point of "we're going
to charge this bloke with murder". It was like, you know,
discussions about this event that took place. I don't
recall anything being - - -
GORMLY, MR: Which event that took place?---When he bit
me. When he started this stuff, which I have now found out
he's done once before, and bit me and, I mean, it never
happened before and it never happened since so we
were - - -
Sure, but there was a discussion about the biting; what
else was there a discussion about?---And also about what he
said about this third person, spooky sort of talk that he
did and the things that he said in it.
This is that night after the interview?---Yes. Yes.
So it's all fresh in your mind?---Yes.
Who was it that you were talking to about it other than
Mr Shervill?---I don't remember.
Was Mr Emmett still there?---I would absolutely be sure he
would be still there. He would not have left before I got
back because we would have needed to conclude anything we
needed to conclude and I would be extremely surprised if
Mr Brandham wasn't there because Brandham took me to the
hospital.
Right?---I got a tetanus shot and a - - -
He brought you back again, did he?---And he would have
brought me back again.
All right, so at least three, maybe four and possibly more?
---Possibly. I just can't recall.
All right. Anyway, they are they recollections you have.
28/6/07 CAPORN, D.J. XN 31
(Closed Court)
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Is that right?---Yes.
THE ACTING COMMISSIONER:
interview?---Yeah.
So you have done the big
It finished in unusual circumstances, I'll grant you that?
---Yes. Yes.
But you have done the big interview, surely there was some
discussion as to whether, in the light of what he had said
in the interview, he should be charged with murder or not.
That was the big issue, wasn't it?---There could've been
but I don't - my belief, and my solid belief, is that we
were never even close to that point at that night once he
retracted what he said.
28/6/07 CAPORN, D.J. XN 32
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So you didn't think - you discussed it - is this
right - - -?---Yeah.
- - - that you discussed it but thought we haven't got
enough to charge him?---I would have thought - look, I
don't know what we discussed but we certainly did agree
that there certainly wouldn't have - there was no thought
of charging him. There wouldn't have been.
Right, thank you.
GORMLY, MR: Why not?---Because we didn't have enough -
even close to enough, in my mind.
You did - can we just look at what you did have?---Sure.
I'm not suggesting you should have, Mr Caporn. I just want
to explore what it was that was - the way in which it was
analysed at the time?---Sure.
You did have a third-person confession - is that right? -
or I think what has been described as a third-person
confession?---It has been described as "third-person
confession" but it's actually "third-person admissions".
All right, third-person admissions then?---Yes.
That is, that by way of referring to another person he
described the way in which the murder occurred and he did
so, declaring in the process various facts which were
consistent with the murder?---And many facts that were
inconsistent.
Yes. Yes?---And then retracted them.
Yes, but in the process he seems to have been able to cite
facts which one would expect only the murderer to know. Is
that right?---There were some things in there and then
there was some things that we don't know where he could
have got them from; you know, as in media and all of that
at that time.
Did you think that those things that he did appear to know
which only the murderer could know were not enough?
---Absolutely.
Right. What was it about those facts that only a murderer
could know that you thought were not persuasive? What was
it about them?---Well, it's probably not the facts. It's
the whole picture. You can't - it's very hard to sort of
dissect anything and deal with it in a void. You've got to
look at who we're dealing with here? Where has he come
from? What are these grandiose fantasies that he's told
us? What is he now saying? Yes, this is salient - and
that is crap. Excuse my French. You know?
28/6/07 CAPORN, D.J. XN 33
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Yes?---So I even refused to look at them in isolation
because we would not have looked at them in isolation. I
can't remember what conversation we had but we would've
looked at the whole picture. Now, the whole picture
emerging to us would've been pretty significant at that
stage because we'd had a lot of breaks, right, so for
example he'd twice admitted going into the shop and running
away when he heard someone coming in the back and during
those times in the first person he'd said some of those
salient things that we're talking about. Then he goes into
this third-person stuff and he talks about a wrench and he
talks about a toolbox and, you know, there was stuff in
there that's like - yeah, and then there's stuff in there
that's - as you say - wow. And you've got to remember
also - sorry?
You just need to translate the "yeah" and the "wow"?
---Sorry.
The "yeah" bits being that - - -?---"Yeah, sure."
- - - you don't believe him?---Yeah, yeah. That's like,
"Yeah, sure."
You don't believe him?---And the other one is, "Wow, how
did he know that?" and in context of the time - and this is
always hard to capture even with an investigation that was
last month is what's out there about an investigation.
When you are actually doing an investigation and you're
working around the clock, as we were in that period,
you're - you don't know what's happening on the - the TV
and the radio and the newspapers; you don't have the
opportunity to review the media, you're locked and loaded
and focusing on what you're doing, so I don't know what's
out there at that stage. Later on and when we give
evidence in court we'd go through the whole lot. I think
Ken Bates got me to give evidence on that, so to do that I
had to review the whole lot.
All right?---Do you understand what I'm saying?
I do?---Yeah.
But you were also no doubt feeding into your discussion at
the end of the 10 June certain other forensic matters such
as that Mallard had no blood on any of his clothing?---I'll
go further than that: there was no forensic link
whatsoever to Mallard from the scene.
If the murder had occurred in the way in which Mallard's
evil person was described as having done it, one would
expect there to have been blood on his clothing and there
wasn't?---Absolutely.
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Was that a factor that was taken into account?---I can't
tell you. I mean, it could well have been, sir, but I
mean, I can't remember that.
In any event, at the end of the interview whatever Mallard
may have said, which seemed very particular to the offence
and seemed to be something that only a murderer could know,
you thought that other evidence was needed, corroborative
evidence or something else other than what you had from the
interview?---Certainly; certainly.
Did you at the end of the process nevertheless think that
the case against Mallard was stronger than it had been?
---Definitely.
Why was that?---Because twice he admitted to going in the
shop and running away and then turned around and said, "I
only told that to get them off my back," sort of thing.
That might not be quoted verbatim there, sir. So I mean,
as soon as someone - when people start telling you that,
your ears prick up for a start.
I understand that point?---And of course then there are the
salient things amongst there.
Yes?---What is - where could he have got that and all of
that sort of caper. So for those reasons - and the fact
that even after the fifth interview now we can't work out
where Mallard is. Now, the important thing about that,
Mr Gormly, is that in that period, as far as I can see, we
can track Mallard from the day he moved into Mosman Park to
the day he moved out of Mosman Park, and about the only
time we can't account for is the missing couple of hours
when she was murdered, so that was, you know - you see,
when he out and about there, he was always with someone.
He was always having contact; scamming, doing something.
There's a string of offences that he was never charged with
but there's evidence of on the brief that you would see,
you know. So he was always out there doing something. So
we were looking for what was he doing? Where was it? Who
was he scamming? What was he trying - does that make any
sense?
Yes. Mr Caporn, I will just ask you to tell us about your
state of mind, what you thought about Mr Mallard's possible
guilt by the end of the 10 June interview?---I was elevated
in respect of the potential but I was certainly nowhere
near believing that, "Yeah, we've got our baddie."
All right. There are two - - -
THE ACTING COMMISSIONER: I'm sorry, "We're nowhere near -
we've got our baddie"?---Yep.
28/6/07 CAPORN, D.J. XN 35
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That could mean one of two things. It could mean, "We're
not sure whether we have got the right person," or it could
be, "I've got a gut feeling we have got the right person
but we haven't got enough evidence against him"?---It's the
former.
The former?---Definitely.
Not sure that you have got the right person?---Yeah.
Thank you?---Can I give one great example of - - -
No. I understand what you say.
GORMLY, MR: It was certainly the latter as well, wasn't
it?---We didn't have enough - - -
THE ACTING COMMISSIONER: They are inconsistent really,
the two propositions are inconsistent?---I wasn't sure and
we didn't have enough evidence. I can say that I certainly
wasn't sure.
GORMLY, MR: So you thought it might have been or it might
not have been. Is that right?---That's right, yes, but my
suspicions were more elevated than they were before
10 June.
THE ACTING COMMISSIONER:
Yes, I understand that.
GORMLY, MR: Okay. What was the next step then that was
thought needed to be taken following the 10 June
interview?---Well, there were already things in place. I
put in a surveillance request for 72 hours of surveillance
of Mallard and so that was already in place. That was in
place before we even got him at the Central Law Courts;
that when he finished with our interview that we would have
him under surveillance and I know the reasoning for that.
All right?---So that was the next thing. The next thing
was that Mr Shervill allocated various teams to support the
surveillance and what I mean by support is to, you know, be
out and about and if the surveillance needed urgent
assistance because he was doing something, that they needed
to intervene, then they would call us. The next step from
Mark Emmett and I was that we were allocated the Saturday
afternoon - and I know this only from my review of the
material. We were allocated the Saturday afternoon shift
to do support of the surveillance. I think 2 pm to
whatever time. It might've been a 10 or 12-hour shift, I
don't know. So that was our next shift. The next time I
come on duty is the Monday and there would've been a major
briefing on the Monday, a major briefing which would've
dealt with what happened on Friday night and all of that
caper. On the weekend - what I do know from my review -
there wasn't - - -
28/6/07 CAPORN, D.J. XN 36
(Closed Court)
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So that's the 13th, is it?---Yes.
All right, look, can I just stop you there because I'm
going to take you to the running sheet of the 13th in just
a minute and we will pick the story up from there?---Sure.
Yeah.
But just before we do, there are two things I need to ask
you about 10 June. The first is: when was it that you did
the red writing on the 10 June notes?---I would say it
would not have been on 10 June. I would have said it would
have happened over a period of several weeks - my thoughts,
given my normal practice. It would have happened over a
period of several weeks because I'm only repeating the
words that are already there. I'm not putting in knew
words with the red words. The rules are with the red words
- when I say "the rules" the rules as I know them and they
have been accepted in court many times, is I can't put a
red word in there three weeks later that is not on the page
already. I can only write what's already on there.
Did you do that on your own or did you do it with
Mr Emmett?---There's a chance of both but one thing I will
say - I would say there's a chance of both but Emmett left
after 11 June. His last shift was 11 June. He went on
duty sergeants and then he went back to a major inquiry
that was going on at Claremont; they were flat out. So if
- I would say largely myself but I would also say there
would have been times that he would have come in for short
periods of time, it might be half an hour in a day, and
talk to me and be with me or whatever the case may be when
I was doing that but it would have been intermittent. I
wouldn't have been like a continuous "sit down there and
I'll finish this". It would have been like, "I'll do some
of this today" - three days later I might do some more.
Mark's here, "I'm glad you're here because I want some
clarification on this page. I actually stopped doing it
myself here because I couldn't read your next line, can we
go over that again" - dah dah dah dah dah.
All right.
THE ACTING COMMISSIONER: You have told us about the
surveillance that was put in place?---Yep. Yep.
What other steps were taken after the interview on the
10th?---At which point in time, sir? At which point in
time? Are you saying what steps were - - -
GORMLY, MR:
THE ACTING COMMISSIONER:
Commissioner, may I pick that up in a minute?
Yes, all right.
GORMLY, MR: I'm going to take him to the running sheet
for the 13th to continue that story - - -
28/6/07 CAPORN, D.J. XN 37
10.53 (Closed Court)
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THE ACTING COMMISSIONER:
All right. Sorry. Yes, good.
GORMLY, MR: - - - consequences. I will just finish this
10 June matter.
Mr Caporn, I will ask you this question: I raised with you
the question of Mr Mallard knowing things that only the
murderer would know?---Mm'hm.
There are some matters in the interview, such as young girl
in relation to Katie Barsden - or teenage girl?---Yep. I
don't think he says teenage girl to me but, yeah.
The colour of the car, which in one place he describes as
green and another as white?---Yeah, I think he uses three
different descriptions over two interviews. He calls it
twice green; once to me, once to Brandham; and once white
to Brandham as well.
In addition, he refers to some events from the scene such
as the dragging and the number of blows?---Yes. I don't
know that he gives me the number of blows. He certainly
talks about dragging with me. He does not give me the
number of blows.
All right. One can work down the list of the - what have
been described as the 15 items referred to by Mr Bates in
his closing?---Yep.
Is any of that information which you may have given to
Mr Mallard in the course of the interview, for example, in
breaks or in discussions before or after?---I've read an
analysis by that guy Hall that's done it - makes
suggestions that me talking about a bandanna back there has
given him the impetus to do things down here. Other than
that, no. Other than - I mean, first and foremost,
everything that I - other than the conversation that I have
with Andrew Mallard at Central Law Courts and the
conveyance back to the office - all the conversations
between Mallard and myself are recorded and there for
everyone to see. Other than that - certainly in that
period there he has got nothing. There are some analysis's
been done by the Mallard camp through the people they got
that I have seen that says about, you know, maybe - - -
Mr Caporn, I know all of that. It's a question to you, did
you provide to Mr Mallard any of the information which has
later been sighted as one or other of the 15 points?---No,
I did not.
You will of course recall the reference to the photograph
that Mr Mallard says was shown to him during the course of
the interview of 10 June. Did you show Mr Mallard a
photographs of Mrs Lawrence after her death at any time
during the course of the interview?---No, I did not.
28/6/07 CAPORN, D.J. XN 38
(Closed Court)
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Were there autopsy photographs in the major crime unit at
the time?---I would've been surprised if they weren't.
Earlier in your evidence - this is the last thing that I
want to ask you on 10 June, the content of 10 June - you
said, "I've since found he's done it before," and you were
referring I think to the incident where you were bitten or,
in any event, some form of scuffle. Could you tell us
about what it was that you have heard, when you heard it
and what the circumstances were?---Okay. I didn't know it
until the last 12 months; I think I picked it up when
Mr Shervill and I were in Eastpoint Plaza, that when he was
arrested by - there's three parts to this. When he was
arrested by Cottesloe police on 24 May and he was in the
lockup, again claiming to have been assaulted by police, he
smashed his head against the cell door to the point where
they had to move him to the padded cell. I picked that up
from the log sheet copy from his lockup days. I didn't
know that on 10 June that he'd done that. I only know that
when - February to April when I was in Eastpoint Plaza.
The second aspect was - I didn't know until I was in
Eastpoint Plaza was that twice in interview - sorry, twice
in evidence, once in the voir dire and once in the trial he
out of the blue talks about this stoking of his forehead
with his palms. When he raises it, it's not in context in
the question he's asked, it's just like out of the blue,
and he talks about, "Oh, yes, and I couldn't think and I
was doing this," and then - and Patrick Hogan describes it
and he - but he said it happened on 17 June, not 10 June.
All right?---They're the three things that I can provided
you with.
Can I show you now document E12379? I want you to have a
look at this document. It's a two-page typed document,
Mr Caporn, and tell us if you were the author of the
document as appears to be the case?---I'm going to read it
all the way through, if I may, but I wrote - I did this for
sure.
You did do it?---Mm.
All right?---I have not seen this but and I would like to
read it. Can I read it all the way through?
Yes, read it - - -
THE ACTING COMMISSIONER:
please?
Yes?---Yep, I definitely did that.
GORMLY, MR:
more; no.
Certainly?---Can I just go down
All right?---I have not - sorry, there's
28/6/07 CAPORN, D.J. XN 39
10.58 (Closed Court)
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THE ACTING COMMISSIONER:
Yes.
GORMLY, MR: Yes, there's a second page?---Okay. Yep, I
definitely did that. I have not seen that but since
probably 94, 95.
Yes, all right. You were the author?---Yes.
Did you physically type it?---I would strongly suggest - I
can't recall but I would strongly suggest I would've typed
it. That's what I would've done.
When would you have prepared this document?---My
recollection is I prepared this document at some stage for
Ken Bates. I don't know whether it was in the assessment
period or whether it was closer to the preliminary hearing
or something like that, but my sense of it is it was to go
to be a ready reckoner in respect of the flow of the
interview.
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(Closed Court)
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All right?---But I'm not sure.
All right?---That's the sort of era.
We'll just come back to that in a moment. As I - - -
THE ACTING COMMISSIONER: It's a fair summary of your
recollection of the interview and how you felt about his
conduct before and during the interview?---Yes.
GORMLY, MR: As I read this document it appears to be a
document written from memory rather than from direct
reference to the notes. Is that correct?---I mean, it's -
whether I had the notes alongside of me or referencing or
from - you know, I mean, I don't know. I don't know. I
don't know how I did it but it looks accurate to me.
All right, and it's of course about the 10 June interview?
---Most definitely.
This document doesn't make any reference - and I'm not
suggesting it should, Mr Caporn, this is an open question?
---Mm.
This document doesn't make any reference to the question of
whether or not what Mr Mallard said during the course of
the interview may have been affected by or be the result of
a mental state or a mental illness or disease. Was that a
factor that was on your mind at the end of the 10 June
interview?---The whole issue of Andrew Mallard and - and
his - what was right, what was wrong, what he was, I would
have to say that would've definitely been on my mind. I
don't have a recollection of what was on my mind but I'd be
surprised if it wasn't on my mind.
In those days, in 1994, if you were concerned that the
reliability of admissions or a confession in whatever form
was a question, were there means within the knowledge of
police officers as to how to resolve that question?
---Always the means - the basic means rule is validation.
Forever and a day and still remain: "How can you validate
what's been said." It doesn't matter whether it's Andrew
Mallard or a normal - - -
Sure?--- - - - normal person.
You could go back - - -
THE ACTING COMMISSIONER: By validation you mean get
corroborative evidence that establishes things that only
the offender could know?---Either supports or refutes what
he says.
Yes, sure.
28/6/07 CAPORN, D.J. XN 41
11.03 (Closed Court)
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GORMLY, MR: What about travelling in the other direction,
that is, you can seek facts to corroborate - or validate,
as you say?---Yep.
Or you could get an opinion from somebody with expertise in
mental health, that is, go to a psychiatrist. Was that
available to you in 1994?---Yeah. I mean, I spoke about
Dr Groves before. We went to Dr Groves so we would've got,
you know, an opinion of sorts from Dr Groves. Now,
Dr Groves is a very busy man so Dr Groves wouldn't have
been given all of our material to read or it would've been
like, "Here's a briefing. What can you tell us? How do we
work out fact from fiction?" Again, I don't have memory
but you're asking me what the sort of process would've
been. That's the sort of process.
Yes?---There's no way that Aaron Groves would've been given
five interviews to summarise and go through and spend all
day on it and then give us some advice.
All right?---It would've been like a shoestring sort of
set-up, if you understand what I'm saying.
What was the purpose for approaching Dr Groves?---The
purpose of Dr Groves is because he'd done a lot of work
with the negotiators at the time, he was working closely
with them so he was known, he was cooperative to police; he
was someone who was an expert who would make his time
available. The purpose was, "What do you make of this?
This is the most bizarre thing that we've ever seen. This
is who we got. This is what we can tell you. This is
what's transpired. How do we work this out? What's the" -
you know, "How do we work out fact from fiction? Can you
think of any approaches that we should take with him?" In
a nutshell, that's the sort of thing.
Did you discuss with him a possible diagnosis?---It's
possible but I don't have any record of what we actually -
what he gave us and what we told him. I can't tell you
exactly what I told him.
Did you ever show Dr Groves the report that you got from
Dr O'Dea?---I would doubt it because we didn't get the
report from O'Dea until trial and the contact I had with
Groves was in this phase of the investigation.
All right, so can I just be clear about the Dr Groves
issue?---Yeah.
You approached him because what you had was bizarre and you
thought affected by a mental state in some way? Is that
right?---Yes.
You may have discussed a diagnosis with him, although you
don't recall it?---Yes.
28/6/07 CAPORN, D.J. XN 42
(Closed Court)
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You would not have given him Dr O'Dea's report?---No.
But you may well have tried to explore with him the
reliability of the admissions that had been made?---Yes.
In however bizarre a form?---Yes.
So the reliability of these admissions was the issue at the
time. Is that right? Or a principal issue at the time?
---Yes, it would have been one of the issues.
THE ACTING COMMISSIONER: Another approach might be, would
it not, as part of that process, to see if there was
anything in what he had told you that was clearly wrong?
---Yes.
Such as a misdescription of the premises?---Yes.
GORMLY, MR: Commissioner, I just want to show the witness
an original of the document that's on the screen - - -
THE ACTING COMMISSIONER:
GORMLY, MR:
Yes.
- - - and just ask a question about it.
I'm going to tell you something, Mr Caporn; I want you to
assume that this document was found in the BCI file. Just
have a look at that. That's the original. It doesn't have
any additional on it but it may assist you?---Sure.
That is the BCI file for Operation Huntsman I'm reminded.
THE ACTING COMMISSIONER:
undercover - - -
That is what the
GORMLY, MR: It's the undercover operation?---Okay. So,
yeah, okay, I understand what you're saying.
Does that assist you to recall why it was that this
document was brought into existence?---On my belief, it was
that I provided it for Mr Bates. The fact that you've told
me it was on Huntsman and it was provided to the UCO does
not surprise me, that I could have done that, yes, but I
can't say, yeah, that's right, that's what I done because I
don't remember - don't recall.
I'm going to show you another document, another original
document. I will just show you another original document
that also came from the BCI file. Commissioner, this is
not a bar coded document. If the Commissioner could be
shown first. Just while the Commissioner is looking at
that, Mr Caporn, it's a document signed by Mr Shervill.
It's headed Operation Huntsman and it provides a summary
not dissimilar in style from your document?---This may have
been a document I've looked at in the last 12 months if
28/6/07 CAPORN, D.J. XN 43
11.08 (Closed Court)
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it's the one I'm thinking you're talking about.
All right. You will see it in a second?---I may have even
used this document, Mr Gormly, for Aaron Groves.
Just wait till the Commissioner has finished reading it?
---Sorry, yeah. No, I meant the one that you have given
me.
THE ACTING COMMISSIONER:
POWER, MR:
as well?
THE ACTING COMMISSIONER:
POWER, MR:
Yes, thank you.
Commissioner, may I be permitted to read that
Thank you.
THE ACTING COMMISSIONER:
first.
Yes, certainly.
I think show it to Mr Power
POWER, MR: Thank you, Commissioner?---Commissioner, would
I be able to go to the toilet while Mr Power is reading
that?
THE ACTING COMMISSIONER: I'll tell you what, I've got a
better suggestion. We will take a quarter of an hour
break.
GORMLY, MR: Commissioner, just before you leave the
bench, would it be possible for Mr Power, after reading
that document, to give it to Mr Caporn during the break?
THE ACTING COMMISSIONER:
GORMLY, MR:
Thank you.
Yes, certainly. Yes, certainly.
____________________
28/6/07 CAPORN, D.J. XN 44
(Closed Court)
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THE ACTING COMMISSIONER:
document, Mr Power?
POWER, MR:
THE ACTING COMMISSIONER:
POWER, MR:
Thank you. You have seen that
I have. Thank you, Commissioner.
I believe so.
Your client has too?
THE ACTING COMMISSIONER: All right, thank you. Where is
the document now? You have it. Good, thank you. Yes?
GORMLY, MR: Mr Caporn, having read that document from
Mr Shervill assist you to recall how your document came
into existence and when I say your document, I'm referring
to document 12379, being the one that you have identified
as your document, being points of interview for 10 June?
---It looks to me like Mal Shervill, Sergeant Shervill, has
done the request and the overview and that I've been
specifically provided the detail from the interview.
That's what it looks to me - and that would be - that makes
sense to me.
All right. Could the officer just be given that document
from you, Mr Caporn, and have it brought to me and I will
just describe it for the purposes of the transcript? Thank
you. The document is a three-page document with two full
pages of text and a few lines on a third page, dated
13 June 94 on the third page, signed by Mr Shervill, headed
Additional Information Operation Huntsman and under that a
subheading Re Undercover Police Unit Request.
Commissioner, that document is not yet bar-coded. As I
understand it - - -
THE ACTING COMMISSIONER:
Should we give it a number now?
GORMLY, MR: Commissioner, I don't think we can now and I
will arrange for it to be done.
THE ACTING COMMISSIONER:
All right, thank you.
GORMLY, MR: All right. We will arrange for a number to
be got, Commissioner.
THE ACTING COMMISSIONER: Thank you. A number can be
noted in next week's transcript or whatever so it's
cross-referenced.
GORMLY, MR:
Yes.
THE ACTING COMMISSIONER:
Yes?
GORMLY, MR: I neglected to ask you a question, Mr Caporn,
about the 10 June interview?---Yes.
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11.31 (Closed Court)
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You will be aware that sometime in the late afternoon of
10 June there was a conversation by telephone between
Mr Shervill and Mr Peter Lawrence. Are you aware of that?
---I'm now aware, yes.
Are you aware of the content of the call?---Yes.
What was the content of the call about in your
understanding?---If you're talking about the missing
crescent or - is that the one you're talking about?
Whatever it was that you understood occurred in that
conversation?---My understanding my from now, because this
was an issue dealt with at the CCA - - -
Yes?--- - - - was that there was some discussion at some
stage in the evening between Shervill and Lawrence about a
wrench or a spanner or whatever missing from the shed.
Could I have 12068?
I'm going to show you - it's page 98 of that document. I'm
going to show you a page from a notebook of
Sergeant Shervill, as he was at the time, which has a note
in it concerning that telephone conversation. Have you
seen this note before?---I've seen it at the time of the
CCA.
Had you previously seen it?---Sorry, it's not in front of
me yet but I presume - yeah - - -
It will be - - -
THE ACTING COMMISSIONER: You had better show him the
document before he says when he saw it. Yes?
GORMLY, MR: Page 98. At the top there you will see,
"1730 hours, 10th of the 6th, ex Peter Lawrence. Large
shifting spanner may be missing - Sidchrome at 10 to
11 inch, round hole in end"?---Yes.
Right?---I saw this at CCA.
Had you not seen it before?---No. Certainly not that I
recall, no.
On 10 June did you hear about that telephone conversation?
---I certainly - I can say definitely I did not hear about
it during the interview. Whether I could've been told this
after the interview, I don't know.
You were talking to Mr Shervill during the breaks in the
interview. Is that correct?---Perhaps. I mean, I don't
recall but even in my evidence I haven't been able to
recall that in 95. It's possible I spoke to him and
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possible I didn't. I mean, I would likely have touched
base with him at times.
Mr Shervill was in the major crime offices at the time of
the interview or during some times of the interview?---I
mean, obviously I don't know when he was there and when he
left and all of that but he was certainly there at some
times, yes, sir.
Does it surprise you that this information wasn't conveyed
to you?---No, not at all.
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Why is that?---Because he's - we're doing an interview,
he's received information, he doesn't want to contaminate
me on anything that I'm doing. It doesn't surprise me that
he hasn't given it to me. That's the way that Mr Shervill
would operate I would believe.
How would it contaminate you?---I don't know. I mean - I
mean, I don't know.
It's a piece of investigative information of considerable
value, isn't it?---Yeah. Look, I don't know - but I don't
know. What I can say is he did not give it to me because -
I know that because when Mallard mentioned a wrench it was
out of a - like a bolt out of the blue and there's no way
in the world I had this before that interview, but I take
your point.
I've only asked questions, Mr Caporn. It's a question
about whether or not you are surprised the Mr Shervill
would not convey this piece of information to you at some
stage during the course of the eight hours or eight or so
hours during which this interview took place?---I'm not
surprised because it's an isolation of Mallard. You know,
what does it say? It says a large shifting spanner may be
missing, a Sidchrome spanner at 10.11. What does that give
to me that would have an influence over the interview?
It's just that two days earlier Mr Lawrence had been asked
whether anything was missing at a time when a weapon was
being sought and searched for?---Yes.
Is that not right?---I don't know when he was asked or what
he was - I mean, I never had any dealings with Lawrence. I
know that right from start to finish in this inquiry we
were searching for a weapon. I have no doubt he was asked
that but I had no knowledge of it.
The search for the weapon was really one of the largest
components of this investigation, wasn't it?---It was a
large component, yes. Yes, absolutely. Probably that and
the door knock were the two biggest components, yes.
You were about to start an undercover operation within days
of 10 June. Would you not think that it would be valuable
to tell the undercover officer what the weapon was that was
used to attack Mrs Lawrence?---We didn't know what the
weapon was.
That's right, but this was a piece of information that
rather suggested that the weapon might have been a wrench
or a spanner. Do you not agree?---I don't think it does
suggest that at all. In fact, I say right now, and nothing
would have changed if I - anytime I've been told a spanner.
There's nothing in what Dr Cooke says at any stage that
puts you in the mind that a spanner or a wrench could have
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committed - could have been part of this. I mean, he's
always said in evidence that he has not seen any wrench yet
but looking at what he says at any stage of the game it
never come to the determination it's a spanner.
THE ACTING COMMISSIONER: No, but he did say at the trial,
did he not, when it was put to him that it could have been
a wrench - - -?---Yes, he says, "It could have been a
wrench but none I've seen but it's sort of, like, in the
terms of anything's possible."
Yes, but even so - and this of course is before the date of
the pig's head test?---Yes.
You're looking for a weapon?---Yes.
Mr Lawrence has told Sergeant Shervill that a shifting
spanner may have been missing?---Yes.
It does raise a - and you haven't had the pig's head test,
so it does raise the possibility that the shifting spanner
may have been the murder weapon, doesn't it?---Look, it
raises a possibility but even though we hadn't done the
pig's head test we had very definitive explanations about
the weapon from Dr Cooke.
Namely?---Namely, that it was something that was a blunt
instrument with a sharp edge, if you understand what I'm
saying.
Yes?---So largely blunt but with - some stage with a
cutting - some part of it that was like a cutting edge. I
think he used like the bow of a ship basically, shape.
So you're not - - -?---He - can I just - sorry.
Yes?---The anode was a classic. He loved the anode. He
said something like this but it's not the anode - but it's
something like this.
All right, yes.
GORMLY, MR: Anyway, you say that at no point on 10 June
did Mr Shervill convey to you this piece of information?
---All I can say is there's no point, prior to the
completion of the interview. Whether he told me afterwards
when I got back from hospital I don't remember, but I can
say assuredly that he didn't tell me during the interview
because the first time I heard about a spanner or a wrench
mentioned ever in this investigation was from Andrew
Mallard.
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Are you concerned, Mr Caporn, that the reference by
Mr Mallard to the use of a wrench later in the interview
might be imputed to you because of this conversation at
5.30?---Look, the inferences of what's being said here are
very clear to me, very clear to me - that, you know, this
happens at 5.30; we've been accused of fabricating and
verballing Mallard. We're told a spanner is missing; all
of a sudden he's saying a wrench is the weapon. It's
absolutely clear on me, absolutely clear on me but it's not
true.
I think it's the case, isn't it, that Mr Shervill was never
satisfied that Mr Lawrence was missing a wrench in any
event. Is that right?---That's right. That's how I
understand it, yes.
All right?---And I think the word "may" sums it up.
Yes. Even after this phone call that was Mr Shervill's
view, wasn't it?---I mean - - -
It was his - it was his later evidence. You'll be aware of
that?---Yeah. Yeah, I mean, I know that he was never
certain that a wrench - or a spanner was missing.
He had - - -?---Because I think Peter Lawrence wasn't
certain a spanner was missing. That was the key. It's not
about what Mal Shervill thought, I think it's what the
information he's been given by Lawrence as to say, "Well,
look, I've had a look and dah dah dah" you know?
Even though Mr Lawrence is expressing a view noted here
that a large shifting spanner may be missing, it seems to
have been expressed in such a way that Mr Shervill wasn't
prepared to accept it. Is that right?---Yes.
And that's a view that Mr Shervill has expressed previously
to you?---Yes.
You're probably looking at the same thing we are,
Mr Caporn. If you would just look further down the page?
---Sure.
Under the heading "UCO, Aaron Groves" - that's the
psychiatrist - you'll see there on the fourth line below
his name the words "wrench used" and "wrench from shed".
Do you know about - - -
THE ACTING COMMISSIONER:
GORMLY, MR:
I'm sorry?
THE ACTING COMMISSIONER:
GORMLY, MR:
"Weapon from shed."
"Weapon from shed."
So it does. Thank you, Commissioner.
28/6/07 CAPORN, D.J. XN 50
11.41 (Closed Court)
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Sorry, "weapon from shed"?---Yes.
Do you see that?---Yes.
Can you tell us about that?---Well, I - my estimation of
this is that "wrench" - it looks like issues that were
discussed - I mean, for example, on 10 June in the third
person he said a wrench was the weapon and as I recall he
also said in the third person that the weapon come from the
shed, and I think - - -
THE ACTING COMMISSIONER: Before we go any further,
Mr Caporn. The reference there - "UCO, Aaron Groves"?
---Yes.
Hitting her - two different places - dragging body and so
on and so forth. Do you - you were present at the meeting
with Dr Groves, weren't you?---I was present with - - -
A meeting with Dr Groves and the undercover officer?---I
don't know about that. I have no record of - I don't know
whether I ever met with the undercover officer.
All right. In any event, you met with Dr Groves?---Yes,
and with Mal Shervill once with Dr Groves.
Yes, and do you recognise this as a summary of what was
discussed with Dr Groves when you and Mr Shervill met him?
---I don't recognise it as that but it definitely could be.
I see?---Because I'm looking at the information and it
seems consistent - - -
They're the - that's the information that was discussed at
the meeting that you had with Mr Shervill and Dr Groves?
---It's likely it could've been, yes.
Yes, all right. Thank you. I just didn't want you to be
cross-examined or examined on something that wasn't your
document and had nothing to do with you; that's all?---Yes.
Yes?
GORMLY, MR:
All right, thank you.
One other additional matter. You'll be aware that in the
running sheets for the period from about 28 June through to
2 July when statements were retaken and signed that there
are descriptions in the running sheet of what it was that
was occurring with those statements. I will just pick an
example up in a moment?---Yes.
28/6/07 CAPORN, D.J. XN 51
(Closed Court)
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But I think you will know what I'm referring to because
yesterday you were saying that there was some language used
that belonged to Mr Shervill rather than yourself?---Yes.
Yes.
Now, can I have first, please, the entry for 2 June 94,
which is about page 97.
THE ACTING COMMISSIONER:
in the running sheet?
GORMLY, MR:
Yes, I am.
Are you going on to the entries
THE ACTING COMMISSIONER: There was something else I
wanted to ask the witness while we were still back at the
period after 10 June. You were asked what steps were taken
after - after the interview of 10 June you weren't sure you
had the right person, and that was a pretty common view in
the investigating group, wasn't it?---Yes.
But if you did have the right person you didn't have enough
evidence against him?---Yes.
So further steps were taken?---Yes.
One of those steps was the undercover operation?---Yes.
Can you tell us what other steps were taken, if any?
---Sorry, could you just give me a minute to think about
that?
Yes, certainly?---Yes, there were some things that he told
us on 10 June which were not known to us prior to 10 June
so we tried to identify all of the things that we could
follow up. So there were a whole range of stuff and we
would have actioned out all of that. So it would have been
discussed at a briefing, it would have been dissected. One
that comes to mind was the school bag, Chan and all of the
stuff that he told us about stealing. So we would have
looked at that whole - - -
What, stealing from the convent; the chalice from the
convent?---No. No, no. It was a stealing from a school
and stuff like that.
Yes, yes?---So what I'm trying to say, very briefly, is we
would have dissected that interview and picked out of it
everything we could follow up, so that would have - step
been taken.
To confirm whether or not what he was saying was true?
---Confirm or refute, and to see whether any of that led us
to somewhere else.
All right. Anything else?---So everything from the
28/6/07 CAPORN, D.J. XN 52
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interview; we had surveillance going so - the surveillance
is a live thing, so from the time he walked out he was
under surveillance. So one of the key things that was
happening that week was "what did he do today, where did he
go, is it" - bearing in mind we're looking - we firmly
believe 100 per cent that he had a stash somewhere. I will
explain that if you want me to but we firmly believed that,
so we were all the time - - -
A stash of - a stash including the weapon or a stash
including jewellery from the store?---On the day of the
murder he went into the hi-fi store and he had a radio. On
another day around the time he had a gold chain. He didn't
sell those things, that we could see, and we didn't know
where they were. Take it the next step: if he was our
baddie, when we find that radio and when we find that gold
chain we might find jewellery, we might find Pamela
Lawrence's purse and we might find a weapon - - -
Right. Thank you. Yes, I understand. All right, so
that's some of the things you did?---Yep.
Anything else that springs to mind?---Spoke with Aaron
Groves, Mal obviously, and we got this undercover operation
going. I asked not to be involved in any more interviews.
I asked Mr Shervill. I told him that I believed that Mark
Emmett and I had basically done everything we could do and
that - given the way our interview finished - that's what
readily comes to mind.
All right. All of those matters that you have told me
about were further investigations of what might be called
the second issue: if Mallard was the offender you needed
more evidence to tie him to it. Do you agree with that?
---Yeah, or - or to eliminate him. More information - - -
That's what I'm coming to. What steps were taken, if any,
to look at whether there might have been another offender
or an - yes, some other offender, to put it properly?
---Obviously we instigated setting tests with the weapons.
He mentioned this name Steven when he spoke in the third
person but, look, I - I can't think of any specific
inquiries that were made - sorry, are you talking about
independent of Mallard or with Mallard?
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Any inquiries made by the police - any inquiries or
considerations - by the police to consider whether it might
have been possible to identify another person as the
offender?---None that I was involved in. I was looking at
Mallard; that was my job. There were others assigned to
Mallard. I would be extremely surprised if we don't
identify on the running sheet that other investigators were
still actively carrying out inquiries regarding their
action items, but I can't tell you about them because that
wasn't my job.
You don't know of any other steps?---Not at this point.
In particular would it be fair to say that no steps were
taken to your knowledge to go over all the statements and
all the witnesses and all the action sheets to see if there
was anything pointing to anyone else?---I can only say that
I only did the Mallard stuff, so I don't know what others
were doing.
You are not aware of anything of that nature?---I'm not
personally aware but I would be surprised if there weren't.
Thank you. Yes?
GORMLY, MR: Can I take you to page 82 of the running
sheet? You will see there an entry for 27 June at 8.30 in
relation to the statement of Ms Engelhardt. The last
sentence for that entry reads, "Statement amended to
exclude hearsay, supposition and irrelevancies." Can you
tell us who has made that entry?---Mr Shervill has made
that entry.
If you just go further down the page to the entries for
10.30 and following in relation to statements by Ms Purves,
Mr Kostezky, Mr Buhagiar and Mr Mouchemore, there is a
sentence in each case which reads, "Statement amended to
exclude hearsay and irrelevant information"?---That's
correct.
Do you see that? Whose words are they?---They're
Mr Shervill's words.
Thank you. I want to take you now to the entry in the
running sheet for 13 June and I want to ask you to move
through the running sheet, using it as a prompt in any way
you wish, I will leave it open to you, Mr Caporn, to tell
us about the briefing for the undercover operation and its
set-up. If we could perhaps at page 65, the next page.
You will see at 8.15 - - -?---Yes, I see that.
- - - you seem to have met with - I think he was
Superintendent Rick Scupham. Is that correct?---He's
either the superintendent or the inspector at BCI, yes.
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A request was made for an undercover operation?---It looks
like the first touch-base basically. The surveillance
operation is already running, it's been running for a
couple of days, and it looks like the first touch-base is
to say, "Can we get a UCO involved in this?"
Had anything emerged from the surveillance operation which
caused you to want an undercover officer?---I don't
remember that.
THE ACTING COMMISSIONER: I see that at 10.20 on Monday
the 13th you spoke to Michelle Engelhardt. Can you recall
what that was about?---Absolutely. Prior to Mallard being
released there was mutual concerns about her welfare and we
helped her to work with State Housing to get new premises.
I see. Yes, all right?---She just rang me - - -
That's the new address?---She's rung me, "This is where
I've moved."
Good, thank you.
GORMLY, MR: Can I take you next to an entry for 13 June,
being 1600 hours, which I think is the next entry relevant
to the - I'm so sorry. If we could just stay back on that
page. At 9.45 you commence preparing information for the
psychologist, Mr Groves?---Yes.
I think in fact he is a psychiatrist?---Yes.
What did that involve?---I would believe it would be that
document that I showed - - -
All right?--- - - - because that's exactly the type of
summary that I would do.
All right. So that's the unsigned document that - - -?
---Yes.
- - - you identified as yours?---Yes.
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Just so that we can speed this process up I'm going to take
you to what seems to be the next entry and that's at
12 o'clock the same day?---Yes.
I don't think it tells us anything further?---No.
But you seem to have prepared some information?---Yep.
Do you know what it was?---No, but I would suggest it
would've been whatever I got from the meeting with Groves.
All right, and then at 1600 hours - - -
THE ACTING COMMISSIONER: What was the 1045 one? Who is
Caroline Kerr?---Caroline Kerr was working on this job.
She was the BCI - she worked at BCI. She's not from the
undercover, she's from the intelligence area.
Thank you, another police officer?---Yes.
Good, thank you. Yes?
GORMLY, MR: Then next on 13 June at 1600 hours - if you
could just go to that - you seem to have met with
Mr Groves?---Yes.
You have told us something about that. Was it just you
that met with Mr Groves - Dr Groves?---No. My journal
tells me that Shervill was with me.
All right?---I believe.
What was it specifically, so far as UCO involvement was
concerned, that you wanted to discuss with Dr Groves that
day?---I mean, I don't have independent articulated - but I
know the whole thrust of Groves was fact from fiction,
what's the best way to approach this with - with Mallard?
You know, what's the best way to go about it?
That's in the late afternoon?---Yeah.
I'm going to take you to the next day, Tuesday the 14th,
but before we get into a general discussion about what
happened with the UCO I just notice that at 1300 hours you
obtained a copy of Mallard's psychiatric report. Do you
see that?---I'll have to go back. Can I just - before I
lose my train of thought with the Groves thing.
Interestingly enough I've had the morning meeting and gone
back in the afternoon.
Yes?---All the hallmarks to me of - with Aaron - "Here's
some information. We'll come back and see you this
afternoon. Does that make any sense?"
I see?---Okay.
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Is that what you think has happened?---Yes.
So do you think you have taken with you - - -?---Yes.
- - - the document that you had prepared?---Highly likely.
All right?---Sorry, are we going back to 13 now?
No, we're going forward to 14 June at 1300 hours. You
obtained a psychiatric report. Do you know if that was a
report - I withdraw that. What are you referring to
there?---Sorry, I just want to try and find it again. I'm
not looking at it. What time was it, sir, sorry?
1300 hours?---"Shervill and Caporn returned to office and
liaise with vice squad and Taxi Control Board."
Just one second. There it is. Just stop there. It's in
the middle of the page, the middle of the screen?---Yes.
The second item under 1000 to 1300 hours?---"Brandham and
Young attend Central Law Courts. Obtain copy of Mallard's
psychiatric report." Okay. Yes.
What is that a reference to?---I would suggest that's a
reference to whatever was handed to the court on 10 June.
So 10 June when Mallard went from Graylands to - to Central
Law Courts to deal with his recogs. Remembering he'd been
remanded for assessment, there must've been something that
went before the court to enable them to then adjust his
recogs and give him bail. My reading of that would be that
that would be whatever that was.
Right?---That report.
Is that something you have seen in recent times?---No.
Was that given - so far as you can tell - to Dr Groves?---I
don't know.
Would it have been given to Dr Groves?---I would've thought
it would be the type of thing that I would show him, yeah.
Can we just - taking it from that point, can you take us
through the 14th and into the 15th to just tell us what
happened with the briefing of the undercover operation and
the information that was conveyed, the people you met and
what the intention was for the operation?---So the 10:10
entry there, "Shervill and Caporn liaise with Detective
Sergeant M1," M1 was the controller for the UCO. That
would be very standard. It would have been more of an
information - filling in the thing for, you know, M1.
There would have been discussions around the paperwork that
was given and just a general sort of, like, putting him in
the picture.
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Would that normally occur?---With the controller, yes.
Would you normally meet the undercover officer himself?
---No.
On this occasion you did. Is that right?---No.
Not this occasion, I mean during this operation he was
met?---I don't think so. I mean, I - Mr Shervill believes
he met him. I don't believe I did and there's nothing -
any document or anything I've found that says that I did.
Do you know him?---I know him now, yes.
You didn't know him at the time?---Look, I can't recall
whether I did know him at the time or whether I met him
afterwards or whatever the case may be, but I certainly
know who it is. I just don't know whether I knew him at
the time.
All right. Now, moving on; what's this next - - -
THE ACTING COMMISSIONER: Just a minute. I'm just looking
- the document I've got here relating to 14 June, did you -
on 14 June, and it's not in the - I don't think it's in the
running sheets. Go back to 8 o'clock. Wait a minute, are
we on 14 June?
GORMLY, MR: Yes, we are, Commissioner. 8 o'clock is just
at the top of that page, if we could scroll up, but there's
two entries for 8 o'clock. There's another one earlier.
THE ACTING COMMISSIONER: No, where are the entries about
this witness. Go down a bit.
GORMLY, MR: They are on the previous - - -
THE ACTING COMMISSIONER: 10 past 10. Sorry, 10.25;
that's I think what I'm looking for. Yes?---I can tell you
about 10.25.
GORMLY, MR: Yes?---Now, I've looked at this recently. I
don't have a recollection of it but I have a strong belief
over what it would be and I've actually put it in the
summary that I've done of this particular matter. Without
independent recollection I believe that we would have been
asked to get something that could be used as a talking
point by the UCO. So my belief is that we have gone to see
Peter Lawrence and Rosemary Lansell to say look, can we
have something that we can provide to the UCO so - or use
for the operation. I don't know we would have told them
too much actually, I would doubt that we would actually
tell them what it was for but that we could actually - that
at some stage during the undercover operation the
undercover officer may produce that and all of sudden it
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12.01 (Closed Court)
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becomes a talking point and dah dah dah. Now, I'm putting
two and two together and coming up with my belief. I don't
have an independent recollection of it but that's how I
would believe it would be.
Well, according to the notes I have there's an entry about
it in your journal?---Yes.
So if it's in your journal it's obviously something you
did?---I have no doubt that I - that I did this. It's on
the running sheet and I believe that that would be right.
What I'm saying, sir, is that I believe it would have been
to obtain a talking point and provide it. What I can't
tell you is I - - -
If you collected - if you obtained jewellery from Flora
Metallica for the undercover officer to show around or show
to Mr Mallard or use in some way I assume you would have
given a receipt to Flora Metallica for it, would you?
---Could of.
That would be the usual process, would it not?---Yeah, we
could have. I mean, you would think that if we take any
property, being a police officer, you would get a receipt
but I don't - I don't recall whether we did or not, sir.
Can you recall - - -?---And I don't even recall whether we
actually obtained something.
Well, can you recall ever returning it?---No, and there's
no record - - -
Any recollection of what happened to it?---Well, there's -
I've looked at this matter, okay. There's that comment and
it's in my journal, it's repeated in my journal for the
day, about obtaining it. I can't remember exactly what it
says in my journal now but it doesn't actually say we
obtained it and I can't find anywhere where it says we've
handed it over and I can't find anywhere where it says that
we got it back.
Well, the next thing you did seems to be to liaise with
Detective Sergeant M1 re the undercover - no, sorry?
---That was before.
28/6/07 CAPORN, D.J. XN 59
(Closed Court)
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So it was before.
GORMLY, MR: No, it's after. If you just scroll down, you
will see at 11.35 you seem to have gone back.
THE ACTING COMMISSIONER:
At 11.35 - - -?---Yes.
- - - you again liaise with Detective Sergeant M1?
---Yes.
So would you agree that the probability is that if you did
obtain some jewellery from Flora Metallica to show around,
you would have passed it on to Detective Sergeant M1 at
11.35?---If we did obtain it, it would be highly probable
that would've been the time we would've passed it over,
sir, yes.
Thank you. Yes, Mr Gormly?
GORMLY, MR:
Thank you.
So what else happened with the undercover operation that
day? We can scroll forward for you. I don't see any other
entries until 1600?---Yep.
You understand that entry?---Yep.
What's that entry about?---That would be like the support
role again that I spoke about with the surveillance. So
undercover and surveillance would be running in conjunction
here, would be - so we would've been - Fremantle, Cottesloe
- it mentions a couple of areas and adjoining areas, so
what I would suggest this is is Mallard is moving around.
He's being followed. The undercover officer may or may not
have been available ready to sort of make contact and we
would've just been in a - as a - what they call IP, an
interested party, been out and about to assist whatever
might happen.
Just while we are there, do you see the entry immediately
above it? It seems that you and Mr Shervill have gone out
to see Dr Cooke - - -?---Yes.
- - - re wounds and possible weapons utilised?---Yes.
Do you have a recollection about that?---No; just that it
was a constant thing.
What's a constant thing, going to see him?---No; trying to
identify this weapon.
Can we move through to 15 June? The undercover operation
is now under way. Is that right?---Yeah; yeah. It sort of
happened in the middle of the week, yes. Okay.
28/6/07 CAPORN, D.J. XN 60
12.06 (Closed Court)
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Perhaps if we can just shortcut this. If I could take you
to the entry for 10.30?---Yep.
You appear to have gone back to Dr Groves - - -?---Yep.
- - - to discuss fresh information regarding Mallard?
---Yep.
What was the fresh information?---I don't know but it
would've been something arising from the surveillance,
something that he did, something that we've learned about,
and it would've been interesting enough for us to go back
to say to Aaron, "What do you reckon about this?" but I
don't know what it was.
What sort of reckoning was emerging? I'm not holding you
down to precise words here, Mr Caporn?---No.
But what sort of things was Dr Groves telling you in
response to these questions?---I don't know. I mean, I
don't know. I - I'd be kidding myself if I can remember
what he said, bearing in mind I've worked with Groves on
many operations since.
I suppose, Mr Caporn, that may be right but was the type of
thing you were after at the time concerning, for example,
his mental state or the means by which he might be
questioned or the means by which things might be raised
with him? What was it that was on your mind of the issue?
---It would've been - safety would've been a big factor.
You know, we've got someone out there doing this sort of
thing. Are they going to do something to themselves?
There's already been a self-harm. Are they going to do
something to someone else? How does the UCO fit? What
about what he did last night? Are these street kids in
danger? What do you make of this? I mean, really it
would've been like a moving feast of what's happening and
what does it mean? What can you tell us? How can you help
us?
The previous night had been a busy night with Mr Mallard.
He had stayed at the Tradewinds. There had been
prostitutes come to the room and I think it was also known
that he had been smoking some marijuana, cannabis.
Correct?---I'd have to check the running sheets to know
that but, look, yes, all of those things, the Tradewinds
and there was something about a - potentially producing a
weapon at some stage. I mean, I'm not talking about a
specific date but, I mean, there was a whole lot of things
happening with the surveillance.
If you are going to a psychiatrist, the use of cannabis is
a matter that you would have raised with Dr Groves, isn't
it?---I would've thought so.
28/6/07 CAPORN, D.J. XN 61
(Closed Court)
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Why? Why would you raise it with him?---Because he
would've been giving him information. I mean, I would've
thought that we would've told him what was going on. If -
if Mallard was using cannabis or if Mallard was, you know,
visiting prostitutes or whatever and we were going back to
Aaron, I would have presumed that we would tell him what's
going on, we would provide him with all the information.
28/6/07 CAPORN, D.J. XN 62
(Closed Court)
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He's not someone to whom you have to report or keep
informed, he's someone from whom you want information isn't
he?---Yeah, but if we don't tell him all what's happening
he can't help us. That - that would be my view. If I
don't tell him what's going on then his help to me is going
to be limited by the fact that I'm only giving him partial
information - and, look - and, sir, for one minute I don't
think I could have possibly conveyed to him all of the
information that was known but that would have been the
general sense of it.
What significance do you think Mr Mallard using cannabis
would have for the investigation?---His using cannabis
would have for the investigation?
Yes?---It would be more difficult to get reality out of
him.
Can you tell us anything further about the undercover
operation as to, for example, its progress and whether or
not it was regarded at the end of it as successful?---No,
we didn't really get anything to inculpate him or exculpate
him; that was the bottom line. There was stuff that he
said that meant a little bit but no more than what we
already had. You know, he talked about playing chess games
with me and all of that in this interview but that didn't
take us anywhere because that's how we operated anyway.
Pretty much - it got nowhere.
So was it terminated early?---I can't remember - and I'd
have to look at the report - the exact parameters or
whether we brought it forward or backwards. I don't know.
I don't know. I think as soon as we had the warrant we
dealt with it.
All right. I'm probably not going to be able to pick this
up quickly, Mr Caporn, but just to get to the point?---Yep.
In the notes there is a reference to the Red Castle Hotel.
Can you tell us about that?---Not without reference, no. I
mean, you mentioned Red Castle - it rings a bell to me but
I can't just immediately say, "This is what happened."
You're a police officer operating in Perth so you would
certainly know about the Red Castle Hotel?---Yes.
Is that right?---They do prostitutes out of there and
drugs - and bikies and all of that sort of stuff, yeah.
And has for a long time?---Yes.
Including back in 94, 95?---Yes, I'm not sure of the status
of it at the moment but back then it was a dodgy place.
28/6/07 CAPORN, D.J. XN 63
12.11 (Closed Court)
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All right, but it just seems to arise here in the notes and
I'll find it. I'm just wondering if you're able to assist
us in any way in telling us why it appears in the notes?
---Which notes are you talking about, sir?
I'm sorry, the daily running sheet of the major crime
squad. Just give me a moment and I'll find it. I do want
to ask you this, Mr Caporn, so I'm just going to take a
moment to find it if I may?---Fine.
Page 94 I'm told?---Thanks.
THE ACTING COMMISSIONER:
What date is that, do you know?
GORMLY, MR: The bottom of the page is 10:45 entry.
Mr Shervill has gone out to the Red Castle Hotel to make
inquiries re occupants - and if we could just scroll down
to the next page.
THE ACTING COMMISSIONER:
GORMLY, MR:
Commissioner.
THE ACTING COMMISSIONER:
it's about.
What date are we up to?
It's 27 July. Wednesday, 27 July,
Thank you?---I don't know what
GORMLY, MR: All right?---I can't help you, sir. I don't
know what it's about.
All right. Let me move to an altogether different subject.
Were you present when Sergeant Brandham was carrying out an
interview of Mr Mallard on 17 June?---Yes.
Did you watch any of the interview?---I don't know whether
I did or not. I don't know, just don't know.
28/6/07 CAPORN, D.J. XN 64
(Closed Court)
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At the end of the interview were you engaged in discussions
with Mr Brandham, Mr Carter and Mr Shervill about the
outcome of the interview?---Very highly likely. Highly
likely. I would say yes.
Do you have a recollection - are you saying that you don't
recollect that?---No, but I would say it's highly likely.
He was not charged at the end of that interview?---No.
Was the reason for that the same as or different from the
reasons that he was not charged at the end of 10 June?
---I'd say it's the same as.
In the 17 June interview, right in the early seven pages of
the unrecorded part of the interview, there is a direct
first person unequivocal not mere admission but confession
of having carried out the offence?---Absolutely.
That's later retracted and various events occur during the
course of the interview but looking at those first seven
pages there's a confession. What was it that was on the
minds - on your mind in any event at the end of 17 June
such that Mr Mallard wasn't charged with wilful murder of
Mrs Lawrence?---If you use that first seven pages in
isolation he would have definitely been charged but given
what transpired in the rest of the interview and the things
that he said and the carry on about what wasn't or was in
the shed and all of those things it then put us back in the
same position, albeit with a little bit more - a lot more
than we were on 10 June.
By 17 June, and that's the last interview with Mr Mallard?
---Yes.
By 17 June what did you consider to be the cause of a first
person complete confession of the offence which you could
not accept?---The things in it that were wrong - and I
would have to look at it to know what they are again but
there were things in it that were incorrect. There was
obviously a lot more information than - that was given to
me, so there was definitely additional things that were
positive, and then of course what continues on is you know
about the rest of it, and of course looking at the totality
of the whole thing; everything we had learned from Groves,
everything we had learned about Andrew Mallard and the
things - we were still in that same position. I don't know
that it got much better, by the way, from the time - that
point until we charged him but certainly in our mind to
say, yeah, this is it, we've got him, we're going to charge
him and go - no way. No way known.
THE ACTING COMMISSIONER: Were you convinced at that stage
that he was the offender or did you still have doubts?---I
had doubts. I don't know that it got any better up until
28/6/07 CAPORN, D.J. XN 65
12.16 (Closed Court)
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the time we took it to the DPP.
GORMLY, MR: Did you consider that it could be - those
first seven pages could be a false confession?---Yes.
Did you discuss reasons why he would make a false
confession?---No.
Did you have in mind reasons why he might make a false
confession?---Because he's got a mental problem.
I want to show you a document. Could we have 13696. You
will recognise this document, Mr Caporn?---Yes.
First of all, that is your document?---Absolutely. Yes.
What we have here is a statement of facts - not in the
court sense but a statement of a position written by you
and directed to the police prosecutor. Is that right?
---Yes.
Did you draft this of your own volition or did someone ask
you to do it?---I may have been asked to do it by
Mr Shervill, that's a definite. I may have been asked to
do it. I may have been directed to put together it but the
information - I've done this, absolutely.
28/6/07 CAPORN, D.J. XN 66
(Closed Court)
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What was the document intended to do?---To get a - another
assessment made. Get Mallard remanded to Graylands again
and get him reassessed, given the further information from
10 June to 17 June. Now, there's another week and a whole
range of material there. Let's get him back to Graylands
and let's just see if there is what - what - any different
assessment on him.
THE ACTING COMMISSIONER: He was before the court on that
occasion for assaulting you, was he?---He was before the
court on 17 June for the bench warrant for failing to
appear for assaulting me.
Right?---Yeah.
One of the objects of this document, I take it, was to use
your best endeavours to ensure that he didn't get bail?
---Yes, absolutely.
Yes. Yes?
GORMLY, MR:
Thank you.
I just want to take you down the page?---Yes.
Down the front page. I take it this is a document that you
have in your possession that you have seen recently?---I've
certainly looked at it in the last 12 months, yes.
I'll take you to the dot points there?---Yep.
You'll see the five of them. It's framed by you that he
claims to have committed the murder of Pamela Lawrence. Do
we correctly infer from the way you have framed that
sentence that you were doubtful about whether he had
admitted to killing Pamela Lawrence?---Absolutely.
Can you tell us about the next entry?---I believe that
would have been information picked up from - I mean, it's
the things he said to the street kids, Rossett and co, you
know, about being a Viking and a warrior, the role of
dressing in that mode. There were aspects of that when he
was out and about with the surveillance operation and
dealing with the street kids.
You seem to have thought that he wasn't just an eccentric
dressing up as a Viking or warrior or acting out the role
but that he actually believed he was in those roles, he was
those people. Is that right?---No, I can't say I believed
that. That - that looks like the way it's written but I
don't know that I believed that.
Was there in your mind a doubt about whether he knew who he
was?---No, not really.
28/6/07 CAPORN, D.J. XN 67
12.21 (Closed Court)
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Or that he could assume roles?---Look, this heroic fantasy
thing I cop a hundred per cent because I - I believe he was
even playing with that with us; you know, him against the
world and all of that sort of stuff. So I - I believe that
but as far as him thinking - you know, am I dealing with a
person here who really believes he is a Viking, I was never
at that point.
What about the next entry, where did that come from? What
does it mean and where did it come from?---I don't know
where that come from and I've asked myself the same
question. I looked at - and I mentioned yesterday I
recently looked at Henry Smit's statement about the
psycho-babble comments and stuff like that. I don't know
exactly. I can't take you to a document to say, "Hey,
here's a statement from someone where he says that he was
going to commit sexual assaults on females," but what I do
know if it's in there I got it from somewhere within that
investigation. Someone has said this but I can't take you
to a document where.
Given the purpose to which this is being used I think you
would agree that it's a very significant statement?---Yeah,
and that's why I'm absolutely certain that I'm not going to
commit to putting that down there if it has not been put to
me.
But you're not able to tell us where it came from?---No,
and because also - remembering what we're asking here, you
know, I could take that line out now and it wouldn't lessen
the request, it wouldn't weaken the request. I mean, it's
a - with this sort - - -
I'm just asking about the sentence itself really,
Mr Caporn?---Yeah, okay. Look, the bottom line is I can't
take you to a document where that come from.
All right?---I've asked myself the same question.
Writing it as you would have written it at the time and
with your knowledge and background, what would be meant by
"young females" to you at the time?---Girls and teenagers
and - I mean, I would've thought - I mean, it could be
girls in their early 20s but you're talking about
30-year-old-plus girls. I would be thinking under 25
probably, young females.
Teens or younger, wouldn't it be?---No, I mean, young
female. I've said "females". I haven't said "children" or
"girls", I've used the word "females" so I would sort of -
you're asking me now, I would say 25 and under.
THE ACTING COMMISSIONER: But over 16?---No. Yeah, I
haven't said "girls" so I take your point. I mean, I don't
know.
28/6/07 CAPORN, D.J. XN 68
(Closed Court)
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GORMLY, MR: Anyway, it's an expression that could
encompass under-16s as well, is it?---Yes.
The next item, that because of his disorderly behaviour he
was subject to an assault at Northbridge nightclub?---Yes.
Is that a reference to DC's?---Yes.
Is that a reference to 16 June?---Yes.
The night of 16 June?---Yes.
THE ACTING COMMISSIONER:
Night of the?
GORMLY, MR: 16 June, the last night - - -
THE ACTING COMMISSIONER: Yes, that's right, the night
before the interview on the 17th; that's right?---Yes.
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GORMLY, MR: What was the information that you had that he
had engaged in disorderly behaviour?---Yeah. I mean, it
would've - it was from the surveillance unit that he had
been in disorderly behaviour there and got into some sort
of altercation and that they'd lost him there and that
was - - -
There's no doubt he got into an altercation?---Yeah.
There's no doubt that he was lost?---Yeah.
I'm interested, Mr Caporn, in the source of your
information for the expression "disorderly behaviour" as a
cause for the assault?---I would've only - it could only
have come from, I would've thought, the surveillance unit.
There's no other way I could get that information other
than the surveillance unit.
That's right?---Or - sorry - or remembering the timing of
this document, there could've been - and I don't know that
there. Maybe there was some follow-up inquiries at the
nightclub when we were looking for him; I don't know, two
sources.
The fifth entry - - -
THE ACTING COMMISSIONER: Actually there is another
possibility of where that information might have come from
I think. Could that information have come from
Sergeant Brandham?---It's possible if it came up in the
interview, because this is after the interview - - -
Or a conversation between the accused - between Mallard and
Brandham prior to the interview. You don't know
about - - -?---Prior to the video interview or prior to the
interview?
Prior to the oral interview, the unrecorded interview?---I
don't know.
You don't know?---I just don't know.
All right. That doesn't ring a bell with you?---No.
All right.
GORMLY, MR: Then on the last dot point it's clear that he
took a large knife from his parents' residence. Correct?
---Yes.
There's a clear report about that?---Yes.
What about the next component, that he made claims that he
intended to commit violent acts with it, where did that
come from?---My recollection loosely is the street kids,
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12.26 (Closed Court)
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Rossett and - whatever, yeah. There were two or three
street kids.
Any other source?---There was some information that come
from his parents. Brandham and Young I know interviewed
and went down and spoke to his parents but I don't know
whether that was part of it. Certainly part of his
information had come from there, like the large knife
taken. As to the claims he intended to commit violent
acts, I can't recall where that came from.
In any event, the purpose of all this, as I think you have
said in the exchange with the Commissioner - - -?---Yep.
- - - was to have him remanded to Graylands Hospital for
further assessment?---That's correct, yes.
That is psychiatric assessment?---Yes.
Because of his suspected psychiatric state. Is that right?
---Yes.
As evidenced by the various pieces of grandiose behaviour,
bizarre behaviour, possible false confession and statements
that were inconsistent with known facts but which were
inculpatory or at the very least damaging to him?---Yes.
I think in fact the squad - maybe not you personally - was
in touch with Graylands Hospital to arrange for his
transfer?---I don't know about that.
You don't know?---No.
All right?---Usually the lockup would handle that.
Presumably, given what you have said, there was some
attempt to contact a psychiatrist, Dr O'Dea or someone else
in charge at Graylands Hospital, to arrange for the
psychiatrist assessment and for the relevant question to be
asked?---No. My belief would've been - that would've been
totally out of hands, that that would've been totally with
the lockup, and my understanding is he actually spent a
couple of days in the lockup and they had someone visiting,
because I've read a report that was done by a visiting
nurse from Graylands - it might've been that one or another
one, but I know he went to Royal Perth Hospital, for
example. So look, normally, normally that activity will
happen independent of the investigation. He will be - the
order is made by the court, then once that court order is
made there's a process in place where that person will
eventually be transported to Graylands.
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As I understand it, Mr Caporn, from your earlier evidence,
the whole purpose of this exercise as reflected by this
document 13696 and the whole reason for not charging
Mr Mallard, despite and unequivocal confession of the
offence on 17 June, was because you thought that you might
have a psychiatrically caused false confession on your
hands?---Yes, and there was insufficient evidence certainly
to charge him with the murder.
Yes. So you were keen to have Mr Mallard return to
Graylands Hospital for a psychiatric assessment?---Yes,
absolutely.
What you wanted to know was a psychiatrist's view as to
whether what he was saying was something that could be
relied upon or not or whether it was caused by psychiatric
illness?---Or anything else he might be able to tell us.
Yes. Is that right?---Yes.
But that wasn't done. Is that correct?---That wasn't done,
sorry?
There was no assessment made of Mr Mallard with those
questions in mind?---There was an assessment made but I
don't how it covered or what it covered but it was
certainly an assessment made of him.
It's correct, isn't it, that no-one went out and spoke to
Dr O'Dea and said, "Is this a case of a possible false
confession caused by a psychiatric condition"?---No, I
don't think so. I don't think that happened.
All right. Let me take you to another matter. On 19 July
you attended a meeting with Mr McKechnie, Mr Shervill,
Inspector Lane - I think he was an inspector at the time?
---Yes.
And whoever else was present. Correct?---I think it was
just the three of us and Mr McKechnie.
Did Mr McKechnie have any assistant present?---I don't
recall.
Where did the meeting occur?---In Mr McKechnie's office.
Which one?---In the DPP. In his office in the DPP in - I
don't know what the tower's called. The same - actually,
they've just moved, haven't they?
Westralia Square?---Westralia Square, sorry.
It was not held in the DPP offices in the Central Law
Courts building?---No, Mr Shervill had spoken to
Mr McKechnie at that location to set up the meeting.
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Right. All right, but the meeting in fact occurred in the
other building, in the DPP building?---Yes. Absolutely.
Can you tell us about the conversations that occurred
within major crime at which you were present or in which
you took part which led to an approach to Mr McKechnie?
---Yeah, in short, we had pretty much done all we could do
and it was about, okay, in respect of Mallard what's the
next step, what do we do?
Sorry, to interrupt you but I'm going to remind you of a
fact in case it assists you. On 18 July there was contact
with Graylands Hospital were major crime was informed that
Mr Mallard was going to be released from the Frankland
ward, which was a secure or closed ward, and he would then
become free to move or free to leave?---Yes.
Does that accord with your recollection?---Yes.
THE ACTING COMMISSIONER: Just a moment. Back on 19 June
he was before the court for failure to - pursuant to a
bench warrant for failure to appear.
GORMLY, MR:
THE ACTING COMMISSIONER:
GORMLY, MR:
This is 19 July, Commissioner.
I'm sorry.
Yes, I know that.
THE ACTING COMMISSIONER: 19 June he was before the court
on a bench warrant for failure to appear.
GORMLY, MR:
20 June.
THE ACTING COMMISSIONER: 20 June, I'm sorry. The letter
is the 19th. No doubt he was remanded on that charge.
Could that be right?---Yeah, I think you're right.
So he had to go back to court again?---Yeah, to get new
recogs.
He applied for bail and bail was refused and he was
remanded to Graylands?---Yes, or - - -
GORMLY, MR: Commissioner, can I cut in. I think the
answer to the question I think you're going to ask is that
he was actually scheduled to remain in there by the
Department of Health at the time, that is - - -
THE ACTING COMMISSIONER: But there must have been a
return date - a remand date on the bench warrant for
failure to appear.
GORMLY, MR:
that.
Quite right. I don't know the answer to
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THE ACTING COMMISSIONER: And he did not have bail on
that. So if he got out of Graylands he went back into
custody I presume. Would that be right?
GORMLY, MR:
Correct.
THE ACTING COMMISSIONER: Would that be right?---No, the
process would have been - I know the point you're making.
We had had contact that he was going to be moved to that
ward so I would have thought - and again, I think you've
raised a point - I would have thought out of that he would
have had to go and get new recogs sorted out but I don't
know whether that happened or whatever but the point made
was that he was going to be either released or put into an
open ward, therefore it actually brought to a point the
need to find out what we were going to do in relation to
Mallard.
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That other detail can be followed up later.
GORMLY, MR:
Commissioner.
THE ACTING COMMISSIONER:
up later.
GORMLY, MR:
THE ACTING COMMISSIONER:
I think we know the answer to that,
All right. It can be followed
It doesn't matter for these purposes.
Yes, good.
GORMLY, MR: All right. Just returning to 18 July, some
discussion occurs following contact from Dr O'Dea. What is
the discussion?---The discussion is that really it's come
to the point now where we need to assess what we're doing
with him at that point.
Right?---Are we going to charge him? Are we not going to
charge him? What is the next step?
Where was that discussion?---You know, I would suggest it
would've been at major crime, in the offices of major crime
but I can't tell you an office or - - -
Let me take you to page 91 of the running sheet?---Yep.
13152. It's an entry for 1320 on 18 July; Monday,
18 July?---Because I've been on three-weeks leave or
something prior to this, yep.
Page 91. You will see at the top of the page there's the
contact - - -?---Yes.
- - - from Dr O'Dea?---Yes, okay - - -
If you look at the next entry?---Yes, I see.
If you just scroll down?---Yep, okay.
Does that reflect the discussion that occurred?---Yes, but
the bit that's missing is the DPP meeting.
So there was a discussion, was there, that the DPP would be
approached?---Absolutely.
You have said that the discussion took place in major
crime. Sorry, you have raised your hands. Are you in
doubt about that?---No; I presume - I would strongly
suggest that's what happened.
You took part in it?---I would absolutely suggest I did but
I don't have an independent recollection of the meeting.
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Certainly Mr Shervill seems to have taken part in it?
---Yes.
And perhaps others. Is that right?---Yes. I mean, I
would've strongly suggested Brandham and Carter as well
but, you know - I mean, I don't recall. I'm only just
telling you what I would've presumed, you know.
So what do you understand occurred after this meeting on
18 July?---A decision was made to go and visit the DPP and
get an opinion.
Yes, but after that, how was that set up?---Mr Shervill set
it up. I know that he set it up through Mr McKechnie at
the Central Law Courts, like you mentioned - - -
Yes?--- - - - and that there was Mr Lane who was the OIC of
the major crime squad, myself and Mal that went down
to - - -
That's the next day?---Yes.
I just want to get this set up thing from your
understanding, Mr Caporn. Mr Shervill went out to
personally find the DPP. Is that correct?---I don't
remember that. I know he did because we've spoken about it
over the years but I don't - you know, it's come to my mind
but I don't know that - - -
All right?--- - - - here it is, he's made the appointment,
gone and seen him or whether he's run into him, I don't
know. I don't - - -
In any event, at about 9.15 the next morning - if we just
scroll down the page - - -?---Yep.
- - - you, Mr Shervill and Inspector Lane have gone to see
Mr McKechnie - - -?---Yep.
- - - at his offices?---Yep.
I'm going to ask you to tell us now what occurred in that
meeting?---My recollection of it is that Mr Shervill and
Mr Lane would've led it and it would've been about, "This
is what we've got. This is what's occurred. This is the
investigation and here's a briefing on what it is we've
got."
Was he shown the video interview of 17 June?---I can't
remember.
Do you think that's likely?---It's possible. I can't only
say it's possible. I can't say likely or unlikely. It's
possible.
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He wasn't otherwise given a brief, is that right, a paper
brief?---Well, I don't know. Mr Shervill had certainly
been putting together everything that was coming from the
Mallard investigation so - - -
Do we understand you to be saying that you don't know
whether Mr McKechnie was given materials or just briefed
orally?---I don't know. The running sheet says "discussed
the proofs of inquiries" but I don't have an independent
recollection.
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All right. Now, you have told us what the topics were;
that is, this is what we've got - what was he actually told
about? I appreciate that it's a long time ago and that you
won't be able to cover precisely what it was but you have
gone there with a dilemma. Is that right?---Yes. I mean,
my belief is that he would have been told about everything
we had and what we didn't have.
Before we get to that though, what was the dilemma with
which you approached him?---The dilemma is is that we have
got this nemesis. We have got all of this about this
person, all of this good stuff, all of this bad stuff.
What should we do? Where do we go with this? Is there a
brief? Do we charge him? Do we put him before the court?
Or do we go with our tail between our legs and continue to
investigate or both? That's what it was about.
All right. Well, as I understand that description you have
put to him the strengths of the case and the weakness of
the case?---Yes.
You do that in any case. What was the exact dilemma that
you had?---The dilemma that we had was we didn't - there
was not information that we would look at and say, "This is
a person" - as we do in 99.99 per cent of cases where we
make a decision. This is rare. You know, normally we
would make a decision. You know, even though I was only a
sergeant then, I've been in the job for a long time,
15 years, dealt with a lot of charges. I've never been to
the DPP and asked (indistinct) I'm not sure if that was
the status of Lane and Shervill but I would be surprised if
they had. So the dilemma was it wasn't one that we felt
that we could make a decision on either way and be
comfortable.
Because of what?---Because of the anomalies and the bizarre
nature of the whole thing. This is like nothing I'd seen
beforehand or nothing like I've seen afterward.
I take it Mr Lane, who had just been away for some weeks,
is not going to have been saying too much in this meeting.
Is that right?---No, I would have not thought so. I mean,
he would have - I would have thought the only discussions
of Lane would be - was, you know, his expertise. I mean,
I'd say the reason he was primarily there is because he's
the boss and we're meeting the DPP with the DPP himself.
He'd have been briefed prior to the meeting though?
---Absolutely.
Did that occur on the 18th or the 19th?---(indistinct)
So who did the bulk of the talking then?---Shervill would
have done the bulk of the talking, I'm certain of that, and
I would have - the reasons - the things that I would have
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dealt with are those that were peculiar to my inquiries
and, I've got to say, the relationship would be - I would
have had no hesitation to pitch in if there was something
that Shervill missed. You know, like, he was talking about
an aspect or that he said something wrong or, you know,
something like that. There wouldn't have been any
hesitation from me to say, "Excuse me but this is the
case."
I take it you would have had something to say yourself?---I
would have, yeah.
As between the three of you, that is - well, let's leave
Mr Lane out of it for the moment but as between Mr Shervill
and yourself, one way of looking at the matter was that you
had an unequivocal confession that was difficult to
believe. Is that right? My words?---No, it's one element
of it.
THE ACTING COMMISSIONER: You say an unequivocal
confession, Mr Gormly. You had an unequivocal confession
on video which the person interviewed said at the end was
all lies?---Yes.
Is that a fair way of describing it?---No. The only part
you could say - you could only say it's unequivocal if you
take it in isolation. The only part that I would say was
an unequivocal confession was the unrecorded - - -
GORMLY, MR: First seven pages?--- - - - first seven
pages. What was said on video, that was never ever treated
by us or accepted by us as anything to do with a
confession. That was just a recording of what he had said
and what he had retracted. It was not anywhere near a
confession.
What that described to Mr McKechnie?---I don't have - I
can't remember the words that were used - I would be very
surprised if it wasn't described. It's a key element of
the whole thing.
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Certainly he hasn't read the interviews because they're too
long?---No, he would not have read them. It would have
been a briefing.
It's unlikely that he saw the video?---It's - look,
"discussed the proofs in the inquiries" says he didn't see
the video in my mind. "Discussed the proofs and inquiries
conducted relating" - now, I can't say he didn't but it
doesn't say that in the running sheet. Can't discount it.
THE ACTING COMMISSIONER: Was there discussion about the
weapon, can you recall?---Absolute certainty to be
discussion about the weapon but I - - -
You can't recall but that it would have been?---It would be
a certainty.
By this stage you had a number of statements but they were
all handwritten at that stage I believe?---Yes.
Would I be right in saying he was not shown the statements
to read?---I would say you are absolutely right.
Thank you. Yes, Mr Gormly.
GORMLY, MR: Can I just take you back - I'm sorry, the
meeting took about how long?---It wasn't short but I can't
tell you how long. I don't know whether my journal gives a
different - gives more information than that but certainly
it was not a short meeting but I can't tell you how long.
Does an hour sound right?---I would have said it would be
at least an hour.
So it's an hour plus?---Yes.
Could it be two hours?---Could be, yes.
THE ACTING COMMISSIONER: Can you recall whether there was
any discussion along the line of "this man's been in
Graylands, we regard him as dangerous or potentially
dangerous and if we don't charge him with murder he's going
to be released into the community" - something along those
lines?---I would be very surprised if we didn't give him
the status of Mallard and that status was - - -
As I have said?---Yes, although what we said about his
danger I don't know, but certainly we would have given him
the status, sir.
GORMLY, MR:
at.
Status of what, sorry?---Of where Mallard was
THE ACTING COMMISSIONER: In other words, that he would be
released into the community if he wasn't charged with
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wilful murder?---Absolutely.
GORMLY, MR: All right. Now, did Mr McKechnie ask
questions during the course of the meeting?---Undoubtedly.
THE ACTING COMMISSIONER: But you can't remember him doing
so, you just assume so?---Undoubtedly he would have asked
questions, yeah, but I can't - I can't - I'd be kidding
myself if I - - -
GORMLY, MR: There were in the room four experienced
people in matters of this type. Do you agree? It's not a
trick question, Mr Caporn?---No, no, no, no. We're
experienced people, yes. Yes. I mean, I had been at major
crime for three months so - - -
Yes, but prior to that you had been involved in - - -?
---Other cases, yes.
THE ACTING COMMISSIONER: It wasn't your first homicide
investigation?---No. I accept what you're saying.
GORMLY, MR: At the end of the meeting, as a result of
discussions between four experienced people, did the
meeting - did the discussion come to some single or
particular point that had to be determined? Do you
understand what I mean by that?---Yes.
Was there - did it come to a particular issue?---Well, my
understanding - I'm not certain it's what you're looking
for but my understanding is that there were two major steps
to be taken; one that we should charge him. It was not our
role to be judge and jury. We should charge him. It was a
matter that should be put before a jury; and secondly, that
we should furnish the more detailed assessment to the DPP
prior to anything else happening.
THE ACTING COMMISSIONER: Prior to?---Prior to any other
activities being taken. In other words, you know, yes, he
should be charged and ASAP you should put together the
package and take it to the DPP with all of the information
underneath.
GORMLY, MR: It's been said that there was a request of
Mr McKechnie that a senior prosecutor be appointed to deal
with the matter once the decision was made to charge him.
Is that right?---Now, I'm not sure - certainly the issue of
senior prosecutor was discussed. I don't know whether it
was at this meeting or another meeting and I'm not sure
whether it was requested by us or whether he first
mentioned it and the Mr Shervill reiterated the request and
that we would seek this in his comprehensive summary.
When you say this or another meeting, was there another
meeting with the DPP, Mr McKechnie?---No. No, this was the
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only meeting.
All right. So what was the outcome of the meeting?---So
the outcome of the meeting was that McKechnie felt that we
should, given the briefing that we had given him - that
he's a man that should be charged and that an assessment -
sorry, a detailed brief should be put to - back to the DPP
for the next part of the process.
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Was there any discussion about obtaining further evidence
or seeking corroborative evidence?---Undoubtedly. It
wasn't - that wasn't the end of the investigation, that
there was to be other - whatever inquiries could be found,
located, would continue with police to see if the brief
would get any better or he would be - get any worse, if you
understand what I mean: something that would come up that
would put him out of the picture.
Was there a discussion about the type of evidence that
might be further sought?---I don't know.
Was there a discussion about doubts about the weapon?---I
don't recall but I would be very surprised if there wasn't
the discussion around the wrench versus what was being said
by the pathologist and what the pig's head test had
revealed because it's a major element of the whole thing
and - and, as is seen, it is not hidden in the
comprehensive summary.
Did you say that pig's head - did someone say that pig's
head testing had occurred?---I can't recall but I'd be
amazed if it didn't.
What about salt water testing, was that discussed?---I
don't know.
Can I just - of course later that day Mr Mallard is picked
up and charged?---Yes, myself and Carter and Dorosz went to
Graylands hospital and charged him.
All right?---Formally charged him.
THE ACTING COMMISSIONER: Could I just interrupt for a
minute? Can you recall whether any of the police officers
present made a note - was taking notes during the course of
the discussion?---If there would have been that would only
have been Mr Shervill.
Can you recall whether when you left the directors office
any of you made a note other than the note in the running
sheet?---No.
All right. Can you recall whether Mr McKechnie made any
notes or was writing during the course of the meeting?
---No.
He wasn't or - - -?---I can't recall.
You can't recall. All right, and there was no-one else
present from his office was there?---I don't believe so and
I believe if they were present it would've been on this
running sheet.
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All right, and one other thing: once you got the opinion
from Mr McKechnie to charge him and you did, would I be
right in saying that apart from looking for more evidence
against Mallard that was the end of the investigation?
---No, I don't know that you would be right in saying that
but I - I can't tell you. Within two weeks of this I was
actually assigned - in charge of another murder and I went
off and I - I - once I went to the other murder that was it
for me.
But once you had charged Mallard - - -?---Yeah.
- - - you're not aware of any further inquiries to look
into the question of whether Mallard was the right person
or not?---No, but I can't discount it.
Right. Yes?
GORMLY, MR: Can I take you back to page 91 of the running
sheet, the entry 1320?---Where?
It was on the screen. I'll just take you back to the
screen there. Do you see at the top of the screen,
"Discussions held within major crime squad"? Do you see
that? Mr Caporn?---Yeah, I'm just reading it, sir, sorry.
All right?---Yes.
If we look at the first paragraph of that entry it appears
to be saying that a decision had been made to charge
Mr Mallard as at 18 July and in fact arrangements were made
to attend Graylands hospital?---Yes.
It seems that you have also - you, the squad, has also made
a decision to do that because it wasn't safe to let
Mr Mallard free in the public?---I don't know that was the
reason of charging him but it was certainly the reason why
it was brought to a head on that - these dates.
All right, then - - -?---My - my memory of this has always
been that no decision to charge him was made until the DPP
had been consulted, but I can see the point you're making.
That seems inconsistent with that first paragraph, do you
agree?---It does. It does.
It rather looks as though a decision had been made but
there has been a consultation with Mr McKechnie in any
event?---That's what it looks like on the running sheet but
that's certainly not my recollection of it.
Commissioner, the document that wasn't bar-coded, that is,
the additional information for Operation Huntsman document
signed by Mr Shervill, has a document number E13644.
28/6/07 CAPORN, D.J. XN 84
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THE ACTING COMMISSIONER: Thank you. That will be
recorded in the transcript and it can be related back.
GORMLY, MR:
Commissioner.
Thank you. There's just one last matter,
Mr Caporn, did you - you're aware that Mr Shervill spent I
think the better part of two weeks preparing the
comprehensive summary document dated 21 October 94 which
was subsequently provided with the prosecution brief.
You are nodding and is the answer, yes, you are aware of
that?---Yes, I - yes.
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Was that a consultative process; that is, did you and
others take part in the preparation of that document?---Not
in the preparation but contribution towards, yes.
Does that mean that it was drafted and then provided to you
in draft for your comments or was there some other - - -?
---I don't know that - - -
I'm sorry, let me stop you?---Yeah.
I would like to know what the process was by which that
document came into existence so far as you know?
---Mr Shervill would've taken charge of that. He would've
primarily have put it together. He discussed it with me.
I would've looked at it at some stage. I can't tell you
when but there's no way that I would see that that would
leave to go to the DPP without me having read it and
contributed to it, given my role and I would say the same
for Brandham as well.
So might you have been provided with copies which you could
then amend and suggest to him for amendment - - -?
---Absolutely.
- - - change?---Absolutely.
Do those amended draft versions still exist so far as you
know?---No.
Do you know what happened to them?---I wouldn't know. I
mean (indistinct) we're at a little bit of ends here is
that - I agree with your proposition that could've happened
but I can't actually say - what I do know is I had input.
What I do know is I would've seen it but, I don't remember
exactly the formate it would take. What I also know is I
am not aware of any draft comprehensive summaries being in
existence.
Was there any - - -?---My suggestion would be if there was
anything like that, it would've been once the final one was
completed, the rest would've been destroyed.
Was there any discussion about whether or not there should
be reference to the pig's head testing in the document?---I
don't know whether there was discussion but I would've
thought it would be absolutely unequivocal that there
should be a mention of that.
Apart from the one line towards the end there's no other
description of the pig's head testing. Is there some
reason for that that you can identify?---I think the
pertinent line in there is relating to the weapon that's
been identified for the pig's head testing. I would
suggest in relation to Mallard there is no other weapon
that was tested that makes any - that has any relevance
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other than the iron bar of Lily Raine, and I don't know
what's been put in there about that.
THE ACTING COMMISSIONER: There's no statement from
Dr Cooke about the pig's head testing, is there? Are you
aware of that?---No. There is - it just says that the
tests on the pig's head were inconsistent with a wrench.
I realise that?---Yes.
But there's no actual statement from - a witness statement
from Dr Cooke about the holding of the pig's head testing,
what was done or what his conclusions were?---I take your
point. No, I don't think there is; no, sir.
GORMLY, MR: One would expect a statement to flow from
testing of that type on a piece of evidence of that
significance, wouldn't one?---One could expect there might
be but - yeah. I mean, if - - -
Was one ever done?---Not that I recall but I can't discount
it.
Yes, I have nothing further, Commissioner. Thank you.
THE ACTING COMMISSIONER: Yes, thank you. Mr Power, do
you want to ask any questions?
POWER, MR: May I be permitted to ask a few questions,
Mr Commissioner?
THE ACTING COMMISSIONER:
On what subject matter?
POWER, MR: Two matters, one of those matters,
Commissioner, deals with the question of what would happen
with multiple statements where they were obtained from the
one witness?
GORMLY, MR: Forgive me, Commissioner. I'm just having
enormous difficulty hearing you, Mr Power. If you could
just pull the microphone close - - -
THE ACTING COMMISSIONER: Yes, and we have heard from the
executive-director that the reporters are having difficulty
hearing all of us.
POWER, MR:
Commissioner.
THE ACTING COMMISSIONER:
I will do my best to project my voice,
That's better.
POWER, MR: The two matters are: what would happen with
multiple statements where they were obtained from the one
witness in the course of an investigation, and the second
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matter is that directed at what Mr Caporn's objective was
when he attended the meeting of 19 July with the DPP?
THE ACTING COMMISSIONER: Yes, I will allow - - -
POWER, MR:
THE ACTING COMMISSIONER:
go on, proceed?
POWER, MR:
I will be no more than five minutes.
Thank you.
No. I will allow those. Yes,
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POWER, MR: Mr Caporn, in 1994 if more than one statement
was obtained from a person in the course of an
investigation of this kind, what would happen with all of
those statements?---Any statement that was taken was -
would remain on the investigation file. So in 94 the
procedure was that only the final statement went up, but
every other statement would remain on the file. If it was
six statements, five statements, one statement, it would
remain on the investigation file.
THE ACTING COMMISSIONER: Would that be the case even if
the statements were different?---Absolutely.
Thank you?---As has been shown by the ones I've been
looking at.
Yes.
POWER, MR:
May I continue, Commissioner?
Who would be permitted access to those statements?---Well,
up until this file was - around the time of the CCA in 2003
when the file was secured, basically anyone from major
crime could have gone in and - and looked at those
statements.
If the defence or prosecution, were the matter taken
further, wanted to have access to those statements could
that have occurred?---Yes. I mean, an example of that
was - yes, that is correct - - -
How would that occur?---I use the example of the very next
case that I was in charge of.
Yes?---On 3 August in 1994 I was placed in charge of a
murder of a woman by the name of Jennifer Crimp. In that
case there were the same thing, there were multiple
statements from witnesses, and the Julie Wager - who was
the lawyer at the time - requested to see all of those
statements.
The lawyer for whom?---For Simon Crimp, the person that we
charged.
Thank you?---For that murder - requested to see all of the
draft statements, as was the case, that some lawyers would
ask and some wouldn't, and she was given access to the file
and allowed to see all of the statements that were given
and this was prior to 1995 onwards where basically it was
recognised as bad practice not to hand them all up and from
that point onwards you would hand all statements up so
they'd all - they'd be given in disclosure to - to the - to
the counsel.
Thank you, Mr Caporn.
28/6/07 CAPORN, D.J. XN 89
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Commissioner, I'll move to the second matter now.
THE ACTING COMMISSIONER:
Thank you.
POWER, MR: Mr Caporn - - -?---Sorry, can I say one more
point on this, sir? There's one - - -
THE ACTING COMMISSIONER: Yes?---Really a point that's -
and this is so important to me - from yesterday. My
understanding of the process would have been after I
interviewed any of those witnesses, whether at the start or
the finish, is that the next thing that would have happened
after the brief was put in is that they would have been
proofed on this matter by the DPP prior to going to court.
So - and I would not have been present and I have never
been present when the DPP have proofed a witness. So
whether a person has given one statement or 10 statements,
they would be proofed by the DPP who would test their
evidence and then they would go to court, they would give
evidence about their statement and they would be examined
and cross-examined. So I would expect that anyone who I've
taken a statement off of or had some role in taking a
statement, that their evidence would be tested at proofing,
independent of me, and it would be tested in court,
independent of me, and I - it's important for me, given
what I saw yesterday, to make that statement. Thank you.
THE ACTING COMMISSIONER:
Yes.
POWER, MR: Moving to the second matter, Mr Caporn.
Before you attended the meeting with the DPP on 19 July,
did you in your own mind have an objective for that
meeting?---In my mind it was to find out whether we had a
brief to charge Andrew Mallard with wilful murder or not.
Did that objective change in the course of that meeting,
for you?---No.
Thank you, Mr Commissioner.
THE ACTING COMMISSIONER:
Thank you.
POWER, MR: Mr Commissioner, before I - I'm sorry, before
I resume my seat.
THE ACTING COMMISSIONER:
Yes?
POWER, MR: I'm aware that the Commission did grant me an
indulgence in this matter in rescheduling the hearing dates
to effectively suit my convenience and I wanted to thank
the Commission for that.
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THE ACTING COMMISSIONER: That's all right. Thank you.
We have had plenty of work to keep ourselves going. Yes,
all right, adjourn this examination to a date to be fixed,
Mr Gormly?
GORMLY, MR:
THE ACTING COMMISSIONER:
Commissioner, could I just have one moment?
Yes, certainly.
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GORMLY, MR:
Yes, Commissioner, if we could do that.
THE ACTING COMMISSIONER: Yes, all right. Thank you.
Mr Caporn, I'm shortly going to adjourn your examination to
a date to be fixed but before I do, I want to draw your
attention to the provisions of section 151 of the
Corruption and Crime Commission Act which provides that a
restricted matter must not be disclosed to any person
outside this hearing room, and a restricted matter means
any evidence given to the Commission, the contents of any
statement or information or a document or a description of
anything produced to the Commission or the contents of any
document or a description of anything seized under the act.
A breach of that section is a criminal offence and renders
the person committing the offence liable to imprisonment
for three years and a fine of $60,000. Do you understand
all that?---I do but I have one question, sir.
Yes?---(The following exchange is suppressed)
THE ACTING COMMISSIONER: Thank you. Yes, all right.
That being the case, I will stand your examination over to
a date to be fixed and I will adjourn until 2 pm on Monday.
AT 1.10 PM THE MATTER WAS ADJOURNED UNTIL
MONDAY, 2 JULY 2007
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