On May 11, 2015, with exquisite timing, just days after the South Australian DPP Adam Kimber SC announced (to the surprise of many) he would retry Henry Keogh for murder in about a year’s time, The Adelaide Advertiser published the results of a survey with the headline: “SA lawyers say DPP must be held accountable for its decisions, not pursue cases doomed to failure.” This is the article:
Top barristers have taken part in an Advertiser survey to co-incide with Law Week, supporting the Law Society’s radical call that prosecutorial decisions be reviewed by an independent body.
Their comments highlight simmering tensions, between the Office of the Director of Public Prosecutions and defence counsel, over the handling of criminal cases.
Lawyers said the DPP’s poor attitude and erroneous decision-making delayed cases, unnecessarily consumes court time and inflates legal costs for defendants.
Barrister Craig Caldicott said prosecutors were not ensuring only cases with a reasonable prospect of conviction proceeded to trial.
“Instead of being courageous, the DPP is still very much concerned by what other people might think of its decisions,” he said.
“It worries about what the media might say, what the government might say, what the public might say.
“What should occur is that ownership is taken at an early stage, and the courageous decision not to prosecute some allegations made earlier rather than later.”
The Advertiser surveyed the opinions of lawyers, judges and magistrates ahead of annual Law Week. The survey prompted Law Society of SA president Rocco Perrotta to call for the creation of an external body to review prosecutorial decision-making.
“Wrong decisions to commence or continue with a prosecution, or the wrong choice of charges, causes considerable problems in the legal system,” he said.
“It may sound radical, but external review of prosecutorial decision-making is long overdue.”
Barrister Stephen Ey supported the call, and said awarding costs to acquitted people would force the DPP to take “a closer look” at their decisions.
“There are cases where prosecution have not behaved as the model litigant and have proceeded when it has been pointed out to them that there is no reasonable prospect of securing a conviction,” he said.
“In those cases costs should be awarded in favour of the successful defendant.”
Lawyer Heather Stokes said compensation should be available but “not easy” to obtain.
“It should be saved for the glaringly obvious cases that should not have gone ahead and carefully exercised,” she said.
Mr Perrotta agreed.
“It would be undesirable if authorities decided not to prosecute out of fear they may have to pay legal costs,” he said.
Attorney-General John Rau said concerns raised by the survey were “why we are presently in a consultation phase” on the State Government’s proposed justice revamp.
“I look forward to the support of those to whom you have spoken in progressing these reforms,” he said.
Director of Public Prosecutions Adam Kimber, SC, declined to comment.
Ed: For more information about the Keogh case, see
And various other articles published in this section, Justice and Democracy.