13 May Law Week 2015 – Criminal Law
It’s Law Week and the Advertiser has asked a number of leading criminal lawyers their opinions about criminal law and traffic law here in Adelaide. Stephen Ey, Partner of Mangan Ey & Associates, participated in the survey. Answers to the survey were published in the Advertiser and online on 12 May 2015.
The Law Society has made recommendations that prosecutorial decisions be reviewed by an independent body. I believe that it would be beneficial if an external and independent body was created to review Director of Public Prosecutions decision-making.
In the Magistrates Court for summary of minor indictable matters a defendant can make an application that police prosecution pay for their reasonable legal costs pursuant to Rule 51 Magistrates Court Rules 1992 (Criminal Law). The defendant or the defendant’s lawyer can make the application if the charges against them are withdrawn or they are acquitted (found not guilty) of the charge(s).
Conversely at present defendants and their lawyers cannot make an application for their legal costs if they are charged with a major indictable offence. Major indictable offences are prosecuted by the Director of Public Prosecutions. I support legislation changes to allow the awarding of costs to defendants and their lawyers when major indictable matters are withdrawn or they are acquitted if the matter was unreasonably proceeded with. I believe this would make the lawyers at the Director of Public Prosecutions more accountable and make them take a closer look at their decisions. If the Director of Public Prosecutions proceed with a matter where there is no reasonable prospect of securing a conviction then costs should be awarded in favour of the successful defendant. That said, we do not want a situation where the DPP are not proceeding with prosecutions purely due to the concern that costs may be awarded against them.