Sean Fewster: Prosecutors withdrawing murder charge against Henry Keogh does not mean case is over, or he will be compensated
ANALYSIS: Henry Keogh has walked from court a free man — but that does not mean the case against him is over, nor that he is entitled to compensation for two decades behind bars.
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HENRY Keogh has walked from court a free man — but that does not mean the case against him is over, nor that he is entitled to compensation for two decades behind bars.
The Office of the Director of Public Prosecutions on Friday afternoon entered a nolle prosequi in the case, which is a formal withdrawal of the murder charge.
Far from abandoning their claim that Mr Keogh murdered his then-fiancee, Anna-Jane Cheney, in 1994, the legal move amounts to prosecutors reserving their position.
Because the charges have been withdrawn, not found to be unproven beyond a reasonable doubt and dismissed by a judge, prosecutors may re-lay them at any time.
Should the behind-the-scenes issues that led to Friday’s unexpected events resolve themselves, or another element of the case change, Mr Keogh could be rearrested and retried.
This places Mr Keogh in a very different situation to that of two other recent, high-profile alleged murder cases.
Gordon Eric Wood — a friend and supporter of Mr Keogh — was jailed in November 2008 for the murder of model Caroline Byrne.
Ms Byrne’s body was found at the bottom of a cliff at The Gap in Sydney in June 1995, and she had been in a relationship with Mr Wood since 1992.
Mr Wood, who had served as chauffeur and personal assistant to businessman Rene Rivkin, was acquitted of the crime in February 2012.
Three weeks later, the NSW DPP announced it would not challenge that acquittal.
Another famous case is that of Andrew Mark Mallard, who was sentenced to life imprisonment for the 1994 murder of Pamela Lawrence.
Prosecutors alleged he killed Ms Lawrence at her business premises on May 23, 1994.
In 2006, Mr Mallard successfully challenged his conviction in the High Court and was released pending a retrial.
Like in Mr Keogh’s case, the WA DPP withdrew charges against Mr Mallard but warned it would relay them when sufficient evidence was gathered.
However, subsequent police investigations identified imprisoned convicted murderer Simon Rochford as the prime suspect and eliminated Mr Mallard as a person of interest.
Mr Mallard was able to resume his life, while Rochford killed himself in his cell.
In May 2009, then-WA Premier Colin Barnett offered Mr Mallard a $3.25 million settlement payment.
Mr Keogh’s case has yet to reach the same stage as that of Mr Mallard, and so any bid for compensation could be seen as premature.
Additionally, there is no avenue within SA law for a former prisoner to seek financial compensation as a result of a miscarriage of justice or dropped charges.
Law Society of SA President Rocco Perrotta said no Australian jurisdiction had such an avenue except for the ACT.
He said a person’s best option would be to seek a one-off ex gratia settlement payment, similar to that which was offered to Mr Mallard.
“I am not aware of any guidelines to help determine whether to make an ex gratia payment and, if so, how much,” he said.
“This makes the process highly discretionary and causes it to appear somewhat arbitrary because there is no transparency.
“The government is under no compulsion to make payments ... if compensation is paid, it is to help compensate the person for the lengthy period of time they were deprived of their liberty.”
Mr Perrotta said that, in SA, ex gratia payments had only been made “in exceptional circumstances where a person has been subject to an extreme miscarriage of justice”.
“It would be very difficult for a wrongfully convicted person to succeed in a civil claim for compensation,” he said.
“It is likely the person would have to establish bad faith with a malicious intent to injure the defendant.
“It is unlikely a civil claim would succeed in a case where a conviction is overturned due to advances in science establishing that the incriminating evidence at the original trial was unreliable.”