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Legislative Council - Fifty-Fourth Parliament, First Session (54-1)
2019-06-04 Daily Xml
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Keogh Case

138 The Hon. F. PANGALLO (16 May 2019).

1. Can the Attorney-General advise as to whether she has had any formal communication with the Chief Justice in relation to Crown Law advice he gave as Solicitor-General in relation to the Henry Keogh case, and if so—

(a) What are any stated reasons given by the then Solicitor-General for the weight he placed on the opinion of Professor Vernon-Roberts, given he was the Crown's chosen expert and the state's most senior pathologist?

(b) Why was permission for the test for haemosiderin, as recommended by Professor Vernon-Roberts in his report, not granted by Mr Kourakis, given the test would have clarified what Mr Kourakis says in his advice, is the most 'controversial' issue?

(c) What are any stated reasons as to why Dr Manock's findings on critical issues were preferred by Mr Kourakis to those of qualified pathologists when it was known since he was appointed (as confirmed in evidence to the court in Manock v IMVS and the State of South Australia, 1978) that Dr Manock's evidence could not be admissible because he was unqualified as an expert?

(d) Has Mr Kourakis indicated that he accepts that if there was relevant information, as was provided to him by Professor Vernon-Roberts and others in his inquiry, that his duty of disclosure was paramount?

(e) Are there any stated reasons why Mr Kourakis formed the view that it was not necessary to disclose the Vernon-Roberts report to Mr Keogh's defence team?

(f) Has Mr Kourakis provided any reasons as to why he thought it was his job to advise the then Attorney-General as to Mr Keogh's apparent guilt or innocence in his advice that Mr Keogh's third petition had no prospect of success?

(g) Has Mr Kourakis provided any reasons why he re-prosecuted the evidence to produce a conclusion of guilt, rather than addressing the issue for the Appeal Court of whether it is reasonably arguable that an appealable error had occurred at trial?

(h) Has Mr Kourakis indicated that he now accepts that, given the inadmissibility and unreliability of the evidence upon which Mr Keogh was convicted, the question of guilt or innocence upon a case is quite different to that presented to a jury is for a subsequent jury upon retrial?

(i) What are any stated reasons given by Justice Kourakis (as he then was) as to why he openly expressed in an interview on ABC Radio National with Richard Fidler in 2012, his opinion as to the guilt of Mr Keogh arising from his advice to the SA government when that advice was still being considered by the Attorney-General to be the subject of a claim to legal professional privilege?

(j) Has Chief Justice Kourakis indicated that he agrees that he broke the legal professional privilege accorded to his advice in doing so, after then Acting Attorney-General (Hon. Kevin Foley) subsequently also did in 2006?

(k) Do the Attorney-General and Mr Kourakis agree with the state Ombudsman's view in his judgement on the FOI application by the Seven TV network in 2018, that in this matter, the Crown did not act as model litigants?

(l) What are the implications, remedies or penalties that can be applied when the Crown has not acted as a model litigant?

(m) Has the Chief Justice indicated that he accepts that the Court of Appeal in Keogh was correct to overturn the conviction with a finding that there had been a substantial miscarriage of justice?

(n) Has the Chief Justice indicated that he accepts, considering the Court of Appeal's decision to quash the Keogh conviction based on substantially the same evidence that was presented to him, and order a retrial, that his decision not to refer the matter to the Court of Appeal was wrong?

(o) Does the Attorney-General still have confidence in the judgement of the Chief Justice in light of the advice Mr Kourakis gave to the previous government (between 2004 and 2006), having regard to the unanimous judgement of the Court of Appeal that there had been a miscarriage of justice?

2. If there has been no formal communication as described above, can the Attorney-General advise of her understanding in response to the questions above.

The Hon. R.I. LUCAS (Treasurer): I have been advised:

1. The Attorney-General, Hon. V Chapman MP, has not had formal communication with the Chief Justice in relation to advice he gave as Solicitor-General.

2. The Attorney-General cannot comment on reasons or views of the then Solicitor-General. To the extent the questions relate to the Chief Justice having indicated matters to the Attorney-General, the Attorney-General refers to her answer to question 1.

(k) The question demonstrates a misunderstanding of paragraph 69 of the Ombudsman's determination of 25 September 2017.

(l) Any consequence of the Crown not acting as model litigants will depend on the facts of the case.

(o) The Attorney-General has utmost confidence in the Chief Justice.

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