Kirby regrets case of wrong conviction

Retired High Court judge Michael Kirby says he regrets not having acted sooner in the case of Andrew Mallard, who was wrongfully convicted of murder in 1995 and spent 11 years in prison before winning a High Court appeal.

“Maybe if I’d paid a bit more attention, maybe if I’d seen some of these arguments (sooner) … he wouldn’t have had to spend a decade in prison; it’s something that troubles the mind,” Mr Kirby said.

In a university lecture about his time on the High Court judiciary from 1996 to 2009, Mr Kirby said many people fail to understand how courts work, and naively believe judges arrive at their decisions coldly and clinically.

He said the federal government’s appointment of judges according to their political leanings was often overlooked.

“Anybody who thinks…that decisions of the highest court in the country, and in particular constitutional decisions, are purely scientific, totally legal, worked out on automatic pilot and are simply a matter of law, need to go back and understand the process,” Mr Kirby said at Melbourne’s RMIT University on Tuesday.

“Judges sometimes don’t have a choice, the law is clear, that’s it.

“But very often, especially as you go up the hierarchy, judges are expected to deal with values and they do have a choice, therefore the values of the judges, wherever they are on the political spectrum, conservative or liberal, is a very important consideration.”

Mr Kirby said the law was a highly unusual profession in the way it demanded such strong intellectual and moral foundations of its practitioners.

When asked by an audience member about his thoughts on modern law schools, Mr Kirby commended the way university courses let students specialise their studies according to their interests in specific areas of law, but lamented a lack of training in modern legal history and legal values.

“How can you become a lawyer if you’ve never spent a bit of time asking what the hell are we on about… what is our purpose, what is justice?” he said.

“I (also) don’t see how you can understand the system if you don’t understand where our rather peculiar common law system came from.”

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