Establish miscarriage projects: Kirby

Law schools and teachers should become much more active in working on miscarriage of justice projects, says Michael Kirby, while praising legal academic innovators Bob Moles and Bibi Sangha.  

Establish clinics and miscarriage projects

By Michael Kirby, retired judge of the High Court of Australia

Former High Court judge Michael Kirby spoke of the anguish judges feel when involved in a wrongful conviction: he urged law teachers to encourage their students to embrace community projects aimed at righting wrongs.  This is an extract from a wide-ranging address*.

The discovery by a judge or any lawyer that he or she may have played a part in a miscarriage of justice is a most unsettling experience.  If it results in an unjust judicial order, it is never forgotten.

I was one of the Justices of the High Court of Australia who participated in the first application by the prisoner Andrew Mallard in Mallard v The Queen.[1]   In 1997 he sought special leave to appeal against his conviction for murder in the Supreme Court of Western Australia.

A decade later, when a fresh application was made and granted, I participated in the appeal that set aside his original conviction.  The hearing of his appeal suggested (as was subsequently established by a judicial inquiry) that Mr Mallard was actually innocent of the crime.  He had suffered a grave miscarriage of justice.

Unfortunately, there are more than a few such cases in Australia.

Some mistakes are inherent in any human system of justice.  However, the risk of error is exacerbated by the pressures imposed on courts of criminal appeal, where panels of judges have to handle large numbers of cases, so that mistakes are overlooked.  Out of a recognition of the defects of the local Criminal Appeal Act (copied from an Imperial template enacted in 1907) moves have lately been taken for reform of the local law.  In the United Kingdom, an independent commission has been created, with the resources, time and expertise to re-examine chosen suspect cases. 

[1] Mallard v The Queen (2005) 224 CLR 125; [2005] HCA 68.  The refusal of special leave in the first application is noted (1997) 191 CLR 646.

MOLES Bob SANGHA Bibi 141105In South Australia, as a result of the unflagging work of two admirable law teachers, Bibi Sangha and Robert Moles, Flinders (pictured), a facility to allow the reopening of decided appeals in some instances[2] has been enacted by the State Parliament.  Similar provisions have now been proposed elsewhere, notably Tasmania.  The energy and determination of these two scholars constitutes a powerful vindication of the special obligation owed by scholars, who enjoy the protection of university tenure, to investigate, analyse, understand and advocate the need for legal reform to help prevent or cure injustices.[3]

Yet the course of law reform is often slow.  Meantime, from their cells, prisoners write to all and sundry asserting their innocence and offering arguments that, at least sometimes, appear to require a careful investigation not presently available.

The only avenue of redress available in most Australian jurisdictions for an alleged miscarriage of justice, once the appeal process has run its course, is an appeal to the Executive Government under statute or for the royal prerogative of mercy.

In default of an independent, transparent legislative or judicial remedy, the creation of a university student-led ‘innocence project’ could sometime help build a case of arguable innocence.  Some critics dismiss this idea because of the lack of professional experience and judgment on the part of the students.  On the other hand, beggars cannot be choosers.

Law students in Australia are amongst the highest achievers in terms of university admission standards.  Typically, they can bring great intelligence, motivation and also time to bear on problems that may too long have been neglected.

[2] Criminal Law Consolidation Act 1935 (SA) as amended in May 2015.  See Bibi Sangha and Robert Moles Miscarriages of Justice: Criminal Appeals and the Rule of Law (LexisNexis, Sydney, 2015) at 104 [3.7.3].

[3] Cf. David Yamada cited in Nigel Stobbs “Academic Freedom and University Autonomy” in S. Varnham, D. Kamvounias and J. Squelch, Higher Education & The Law, (Federation, Sydney, 2015) 203 at p.214

I support the initiation of such projects.  Apart from anything else, they would teach law students the central importance of detail; the high significance of facts and evidence for contested questions; and the serious risks of error that arise in the law.

For similar reasons, I believe that law schools should be engaged with community legal services.  Many such links have already been established.  Some (such as that between UNSW and the Kingsford Legal Centre) are intensive, substantial and of longstanding.  They introduce law students to the privilege of being entrusted with the confidences, challenges and legal concerns of their fellow citizens.

Recent changes in formal legal aid introduce new needs for flexibility and adaptation.  Cuts in legal funding may reduce the facilities available for such centres and the opportunities for supervised student involvement.  Ill-considered governmental prohibitions on deriving lessons for law reform from the work of community centres should be reconsidered.  Partisan political engagement and criticisms must occur outside publicly funded institutions.  But drawing lessons for reform of the law is a lifelong obligation of lawyers.  It is a lesson and habit that must be taught in all law schools.

Community legal centres, innocence projects and civil society institutions are places where law students should be encouraged to get involved and stay involved.                                                                                            ENDS

*  From UNMET LEGAL NEEDS IN AUSTRALIA: TEN COMMANDMENTS FOR AUSTRALIAN LAW SCHOOLS: The Hon. Michael Kirby AC CMG Justice of the High Court of Australia (1996-2009); President of the New South Wales Court of Appeal (1984-96); Chairman of the Australian Law Reform Commission (1975-84); Editor-in-Chief of The Laws of Australia (2009 – ) delivering the Leo Cussen Justice Speech 2015, La Trobe U. City Campus Melbourne. 17 July 2015. The author acknowledges the research assistance of Mr Callum Dawlings, tutor in law of La Trobe University School of Law.

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2 Comments

  1. Well said Sandra. I believe it does occur and that people forget about the consequences if they plead guilty to a charge and convicted eg later with jobs or travel overseas etc. There are many miscarriages of justice occurring, not just in criminal law but in all civil jurisdictions as well including in family law. Some decisions are plainly wrong on the facts or a party was denied a fair trial process or the evidence was not considered. It’s common and so I agree the legal system is tremendously flawed and we need a judicial commission established to investigate these because appeals are not always the answer and often unsuccessful…but not because there was guilt or a fair trial initially. So the appeal process can itself also be flawed or just too difficult or pedantic on overturning obvious past errors because courts like ‘finality’ in cases. There is no finality if fraud or falsehoods on a court are involved nor should there be as it undermines the integrity of the institution which at its core is – justice!!! I love the fact former High Court Justice Kirby is so passionate about this topic, writes often on the subject, and has given support to the great works by Bob Moles and his wife Bibi. They deserve formal awards from the Queen and the government for their efforts towards ensuring justice prevails, not injustice. So how about it?

    RMcCardle
  2. I agree with Justice Kirby: law students should be involved with community legal services, I also think that post graduate law student should also engage in research that looks at the type of evidence put up by police particularly those that don’t go to trial. I have observed that pleading guilty can come down to someone not having money to pay lawyers; or having a profound fear being found guilty even though they are innocent, thus accepting police prosecution negotiation with lawyers that they won’t ask for a jail sentence if person pleads guilty.

    Having witnessed a process concerning a family member being the subject of an insurance company instigated investigation after lodging a motor vehicle accident claim, I have serious concerns about due process by Police being comprised and the inability (unwillingness) of the legal profession to challenge discrepancies in statements put forward by the prosecuting police (all witness statement except one was signed). This whole process took nearly three years.

    In this instance the police relied heavily on a flawed report commissioned by the insurance company which was in dispute through the Ombudsman prior to the Police laying charges; and also witness statements.

    I couldn’t help feeling that the legal system isbroken and as things stand in this State because no community legal service has the funds to defend these types of cases. It then becomes a very lucrative business for the privately operated legal firm with their costly fees who in the end do not have the will to challenge what police prosecutors are holding up as evidence and opt out by stating that they discovered that a prosecutions witness was a former client and unable to be cross examined by them because of a conflict of interest.

    After a change of law firms the whole process starts again. A lack of money to continue to fight the charges becomes a consideration in pleading guilty, more so when the police prosecution keep stating through negotiations with lawyers that they won’t push for a jail sentence.

    Sandra

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