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Wrongful conviction law reform

Andrew Mallard's case for compensation after being wrongfully convicted of murder has highlighted the need for legislative change, Sam Fazzari, vice chairperson of The Innocence Project WA, told…

Andrew Mallard's case for compensation after being wrongfully convicted of murder has highlighted the need for legislative change, Sam Fazzari, vice chairperson of The Innocence Project WA, told Lawyers Weekly.

In WA, compensation is not automatically awarded to a person who has been imprisoned and then exonerated of a crime, says Fazzari, who spent nearly three years in prison with two co-accused after being wrongfully convicted of murder. Instead the state attorney-general has the discretion to make an ex-gratia payment. Mallard has been made an ex-gratia offer of $3.25 million.

"It's nothing that you're entitled to, so it's not like they say 'It's $100 for every day you spent in prison, or $100 000 a year.' There is no set payment, it's just at the attorney-general's discretion," he said.

"Andrew Mallard is now on the way to getting compensation but there are many other people who go through that whole ordeal ... and haven't received compensation and, basically, there is nothing you can do about it."

The Innocence Project WA is pushing for legislation such as that which exists in some US states, where people are given compensation based on a set amount in terms of the days spent in prison.

Fazzari said that in Mallard's case the police had found a palm print, which raised suspicion that there was another suspect who committed the crime "and in those circumstances the public can rest more assured that the wrong person has been convicted".

But with Fazzari's case, no other suspects were pinpointed and he was not successful in his compensation application. Innocence Project believes compensation payout legislation is necessary because the public is less likely to support remuneration in circumstances when another suspect has not been identified in relation to the crime.

Mallard's case also highlighted a miscarriage of justice when police and a senior prosecutor were implicated in tampering with evidence and withholding information from the defense. But there had been little discussion around this aspect of the case, said Farrazi.

"The public are very supportive of Andrew Mallard getting compensation and getting more money - and so they should be. I definitely think he should get more money for the time he spent in jail. But it strikes me as being odd, that no one is jumping up and down about all the police officers or the prosecutors or whoever else contributed to Andrew Mallard spending 12 years in jail," he said.

"It defies [logic] that the public is not up in arms about the fact that these people are doing such criminal things. It sets a horrible example for the up-and-coming police officers. I think, without making an example of these people, these things will continue to poison our system and will be passed down through the police culture and police hierarchy down to the up-and-coming police officers - and that's a really sad thing."

The Innocence Project WA recently joined up with Australia's ECU School of Law and Justice to pursue exonerations and identify factors that contribute to wrongful conviction as well as seeking to facilitate law reform.

- Sarah Sharples

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