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Article: UK law on miscarriages of justice [See especially the section on "prosecutorial concessions and non-disclosure"]

Role of Prosecutors

It should be borne in mind that this article was written before Mr Hinton became the Deputy DPP in South Australia. However, now that he is in that role, it should be considered that in the Keogh case, although Mr Keogh was convicted of murder 12 years ago, he has never been given access to the medical history of the deceased, nor has he or his advisers been able to examine the negatives of photographs produced at his trial, nor was he told that principles underlying the theory as to cause of death had never been published and therefore could not amount to "scientific" or "expert" evidence.

The failure to disclose the findings of the Coroner in relation to the Baby Deaths cases until after Mr Keogh was convicted would of itself warrant the overturning of the Keogh conviction.

More recently, the Solicitor-General, Mr Kourakis QC, has rejected Mr Keogh's Petition to the Governor on the basis of expert advice received by him. The identity of those witnesses has never been disclosed, nor has the content of their "expert reports". Mr Keogh has not had an opportunity to comment upon them as would be required by the basic rules of natural justice and of the duty of prosecution disclosure. Furthermore, the content of the advice from the Solicitor-General has not been disclosed despite the fact that the publication of extracts from the advice by the Acting Attorney-General Mr Foley has waived any privilege in relation to it.

Furthermore, the Solicitor-General (Mr Kourakis) referred favourably to the article by Mr Hinton in his own article in his "President's Message" to the Law Society in July 2002 - Law Society Bulletin Vol 24 No 6 July 2002. It is difficult to understand why the principles set out so clearly there, are not being adhered to by Mr Kourakis, now that he is the Solicitor-General of South Australia.

It should also be asked whether there is a conflict between the duty of the Solicitor-General as advisor to the Attorney-General and as de facto prosecutor in relation to the Petition of Mr Keogh. It could appear that the Solicitor-General fulfilling both roles is acting as both advocate and judge. At all events, none of this is consistent with the duty of disclosure as explained by Mr Hinton.

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