The Supreme Court judge’s unusual career move to quit the bench in order to become the state’s top prosecutor was warmly received in legal circles last week.
But some in the fraternity are privately questioning the logistics of the move, with barristers and solicitors subject to national rules prohibiting returning judicial officers appearing before a court over which they have presided.
Barristers’ conduct rules stipulate briefs must be refused or returned if it means appearing before a court “of which the barrister was formerly a member or judicial registrar, or before a court from which appeals lay to a court of which the barrister was formerly a member”, for a period of five years.
Rules of professional conduct for Australian solicitors state that “a solicitor who is a former judicial officer must not appear in any court if the solicitor has been a member thereof or presided therein; or any court from which appeals to any court of which the solicitor was formerly a member may be made or brought, for a period of two years after ceasing to hold that office unless permitted by the relevant court”.
Attorney-General Vickie Chapman appeared unaware of any such rules last week, telling ABC Radio Adelaide on Friday she was “not aware of the detail” of any possible conflicts of interest arising from Justice Hinton’s time on the bench, but insisting he would “set aside” any matters where a conflict might exist.
Asked if there were any existing conventions that would stop him appearing in court, she said: “No, no, no.”
Asked to comment today, her office told InDaily: “The Attorney-General is satisfied that whether or not he can appear in the first two years is a matter for the Court.”
However, it’s a matter that is yet to be decided, with Chief Justice Chris Kourakis telling InDaily in a statement: “Justice Hinton has not as yet been appointed nor commenced in the role of DPP.”
“The Court can only determine any question related to Justice Hinton’s right of audience in that capacity on its merits when and if it arises or in an action or other proceeding,” he said.
Law Society of SA president Amy Nikolovski said that “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” while “under the Australian 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 person to whom one of these rules apply can apply to seek permission to appear in the relevant court,” she added.
“Typically it is uncommon for the Director of Public Prosecutions to personally appear in Court, but the Society expects that if Justice Hinton did seek permission to appear in the Supreme Court in his role as Director, that permission would be granted unless any conflict of interest issues arose.
“The Society considers the appointment of Justice Hinton as Director of Public Prosecutions an excellent appointment.”
However, one legal source said obtaining an exemption was not a formality.
“It’s a well-established principle,” said the source, who did not wish to be named.
“It’s not a Mickey-Mouse thing – it’s a well-established rule to avoid perceived conflicts of interest, where former judges appear before a court they were previously on.
“The rule either applies or it doesn’t.”
Another legal insider said “it did occur to me that [the rule] was a potential problem”.
“It would certainly be a problem for him appearing in the Supreme Court, and also if he was dealing with a District Court matter.”
Former DPP Stephen Pallaras told InDaily: “All I can say is it had occurred to me as well.”
He added that he “would have expected that Justice Hinton would have gone to the Chief Justice to get provisional approval” when he applied for the role.
The DPP’s office advised that the acting DPP was “not in a position to answer your questions at this point in time”.
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