Hinton was appointed a justice of the Supreme Court in 2016 before applying successfully to become the DPP three years later.
It’s understood he has had to seek approval to argue matters before the Supreme Court, given standing conventions that a former judicial officer must wait two years before appearing as a solicitor in the court they presided over or five years to appear as a barrister.
Hinton will appear before the Supreme Court in November for a judicial ruling on District Court judge Liesl Chapman’s finding that the state’s ICAC cannot refer matters direct to the DPP.
That finding was made in relation to the case against crossbench state MP Troy Bell, but has the potential to impact a range of ongoing matters, including the case against former Renewal SA executives John Hanlon and Georgina Vasilevski – a case from which Hinton has already recused himself because of a conflict of interest dating back to his time as Solicitor-General.
But former Labor MLC Chris Sumner – who served as Attorney-General in the Bannon government, says he believes Hinton “should not be appearing in any Supreme Court matters – particularly those involving the liberty of the citizen”.
In an emailed letter to InDaily, Sumner notes that “until 12 months ago, [Hinton] was a judge of that Court”.
“The ethical principles are quite clear and for good reason – the appearance of a conflict of interest is palpable,” he said.
“The DPP will be privy to the thinking of Supreme Court judges because he has worked with them.
“He will know of their attitude to legal issues, information which will not be available to the defence.
“The prosecution may have the inside running against any accused person – certainly it will appear that way.”
Sumner said that Hinton “has properly recused himself in relation to the Renewal SA prosecutions because of direct conflict of interest”.
“He should also do so in relation to all Supreme Court appearances, but especially in relation to any ICAC prosecutions,” he said.
Sumner further expressed “surprise” that the state’s Law Society and Bar Association, “who are usually alert to ethical concerns and solicitous of the rights of citizens have been silent”.
He noted that the Australian Institute of Judicial Administration’s Guide to Judicial Conduct – much of which was overseen by former SA Chief Justice John Doyle – provides that “throughout Australia a former judge should not appear as counsel in a Court of which he was a member for various periods ranging from two to five years”.
The guide reads: “The question of principle is whether the appearance of the former judge before a court, in which the judge sat or in respect of which appeals lie to the court of which the judge was a member, might, because of the relationship, appear to be inconsistent with the impartial administration of justice.”
“The issue goes to the integrity of the judicial process,” it adds.
Sumner argues that another book – Judicial Ethics in Australia, edited by former Judge James Thomas – “makes the same point and says these rules should not be watered down”.
“The public, and in particular the adversary’s clients might think that the judge-lawyer had an unfair advantage arising from former intimacies and dealings; and this might transfer into a fear that justice might not be done,” that book reads.
In a statement to InDaily, Hinton responded:“I have no greater advantage as to the approach of particular Supreme Court judges to their task than does astute counsel who study the judgments of the court.”
“I am confident that the court will approach matters in which I am involved in a strictly impartial manner in keeping with established principle,” he said.
The Law Society argued the issue was a matter for the court’s discretion, with president-elect Rebecca Sandford telling InDaily: “Under the Australian Solicitors Conduct Rules, a former judicial officer cannot appear as a solicitor in the court they presided over, for a period of two years. Under the SABAR Barristers Conduct Rules, a former judicial officer cannot appear as a barrister in the court they presided over, for a period of five years… however, a former judicial officer who is subject to these rules can seek permission to appear in the relevant court.”
“If Mr Hinton seeks permission to appear in the Supreme Court, it would be a matter for the Court to determine whether it was appropriate to permit him to appear,” she said.
SA Bar Association president Mark Hoffmann sent a letter of his own in response to inquiries from InDaily, noting that “Mr Hinton QC is not a member of the SA Bar Association and is not subject of the barristers’ Conduct Rules of the SABA”.
“Whether it is appropriate for Mr Hinton QC to appear in any particular case before the Supreme Court is a matter for Mr Hinton QC to consider and the parties to those proceedings to address,” he wrote.
“I am informed this has occurred on a case-by-case basis.”
Hoffmann noted that “more generally, the SA Bar Association welcomed Mr Hinton QC’s appointment as DPP, by reason of his exceptional legal skills and experience”.
“Mr Hinton QC commands the respect of members of the SA Bar Association [and] those practising at the criminal bar have found that his approach to the discharge of his duties as DPP of this state has been to the betterment of the criminal justice system in SA,” he said.
Senior barrister David Edwardson also leapt to Hinton’s defence, telling InDaily: “I see in his case no problem at all or impediment in appearing in any court.”
“I have absolute faith in his impartiality… so much so that I’d rather he was my opponent than many others,” he said, adding that Hinton’s tenure was “like returning to the [former DPP the late Paul] Rofe days of an ‘open door’ policy, where I can communicate with him directly”.
“I personally take the view that no member of that court would cut him any slack simply because he was a judge for a relatively short duration,” he said.
“He is now DPP, and has performed in an exemplary fashion.”
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