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

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