Foreword
| Author | Michael Kirby |
| Profession | Justice of the High Court of Australia |
| Pages | 17-22 |
Foreword
Mistakes
sometimes
occur.
Even
in
a
criminal
justice
system
dedicated
to
fair
trial
within
an
accusatorial
methodology
and
with
a
facility
for
appellate
review.
Not
long
before
I
retired
from
the
High
Court
of
Australia,
I
had
this
truth
brought
home
to
me
in
a
very
personal
way.
In
2006,
a
bundle
of
appeal
papers
landed
on
my
desk.
They
related
to
an
appeal
by
a
Western
Australian
prisoner,
Andrew
Mallard.
He
was
challenging
orders
of
the
Court
of
Appeal
of
his
state
which
had
rejected
his
petition
for
the
exercise
of
the
royal
prerogative
of
mercy
in
respect
of
his
conviction
of
murder
more
than
a
decade
earlier.
The
written
submissions
in
the
case
were
extremely
thorough.
As
I
read
them,
features
of
the
matter
seemed
familiar.
I
then
noticed
that
the
case
had
been
before
the
High
Court
ten
years
earlier.
Mr.
Mallard
had
then
unsuccess
fully
sought
to
obtain
special
leave
to
appeal
from
the
appellate
decision
that
had
originally
confirmed
his
initial
conviction.
Discreetly,
the
record
and
the
submissions
did
not
reveal
the
names
of
the
Justices
who
had
participated
in
the
earlier
refusal
of
leave.
I
consulted
the
published
schedules
in
the
Commonwealth
Law
Reports.
I
found
that
I
had
been
one
of
the
judges
who
had
so
decided.
The
parties
raised
no
objection
to
my
participating
in
the
second
appeal.
Andrew
Mallard
had
always
protested
his
innocence.
He
gathered
up
sup
port
from
his
family
and
from
a
number
of
political,
community,
and
media
interests.
This
initiative
led
to
a
petition
for
a
review
of
the
case
by
the
Execu
tive.
That
petition,
which
followed
a
statutory
procedure
common
throughout
Australia,
was
referred
to
the
highest
appeal
court
of
the
state.
When
it
was
xvii
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