Tuesday, November 24, 2015

Henry Keogh: (Part 10): Perth lawyer Tom Percy on one of the lessons of the Keogh case: "In an age when transparency is seen as one of the most essential factors in the justice system, it is simply not good enough to have these matters (criminal case reviews) dealt with behind the closed doors of the Attorney-General’s chambers." {Perth Now);

COMMENTARY: "What more evidence do we need for new legal provision?," by Tom Percy, published by Perth Now on November 23, 2105. (Tom Percy is a Perth QC.)

SUB-HEADING: "Henry Keogh can be thankful for one thing - he doesn’t live in WA." (West Australia);

GIST: "In Adelaide last week a man named Henry Keogh was finally able to go to bed without a murder charge hanging over his head. It was the first time in more than 20 years that he had been able to do that. His conviction for murdering his girlfriend by allegedly drowning her in a bath at their home in 1994 was overturned by the Supreme Court late last year and a retrial was ordered. After thinking about it for the past nine months, the prosecution this week officially threw in the towel. Which is all good news if you don’t stop to think about the 20 years he spent in jail trying to prove his innocence. If anyone in Henry Keogh’s position in WA came upon a body of fresh evidence (as he did) that clearly proved their innocence, they would be in a very different situation. Before any new appeal could be mounted, a case like his would need the approval of the State Attorney-General, which is not lightly granted. If the Attorney-General refuses, that’s the end of the story. And so it was for Mr Keogh until three years ago when the South Australian parliament enacted a law to enable persons like him who had discovered fresh and compelling evidence of their innocence to go back to court without the permission of the Attorney. In his case the Attorney had sat on the evidence for some years before eventually rejecting it. The South Australian Court of Appeal, however, found the fresh evidence to be “compelling”, so compelling, it seems, the DPP conceded there should be no new trial. Suggestions to the WA Attorney that WA might benefit from this sort of provision has regularly fallen on deaf ears. In the normal course of events you would think any attorney-general would generally refer such a case back to the court if there was any reasonable prospect of the conviction possibly being unsafe in the light of fresh evidence that was not known at the time of the original trial and before all other appeals were exhausted. But even attorneys-general are fallible, as was seen in the Keogh case. There is every reason why this function, which has been vested in the executive for decades, should now be vested in the courts. The benefits of doing that are obvious........ In WA there are several long-serving inmates whose cases for a fresh-evidence appeal have gone before the Attorney-General and been rejected. I don’t act for any of these men, but I have seen the proposed new evidence in a number of their cases. To my mind each of them has significant grounds to be referred back to the courts. What would be the downside of doing so? A court hearing which might last one or two days? Hardly a ruinous expense to the State. On the other hand, it would put these matters to bed forever. It might well confirm their guilt. No aggrieved person could say they didn’t get the chance to have their day in court. In an age when transparency is seen as one of the most essential factors in the justice system, it is simply not good enough to have these matters dealt with behind the closed doors of the Attorney-General’s chambers."

The entire commentary can be found at:


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