Kapunda Road Royal Commission

Last updated

The Kapunda Road Royal Commission was a royal commission created by the Government of South Australia in 2005 to inquire into the circumstances surrounding the hit and run death of Ian Humphrey and the circumstances around the trial and conviction of Eugene McGee. The Royal Commissioner was Greg James QC. The first hearing of the commission was on 12 May 2005 and the report was delivered on 15 July 2005.

Contents

Background

Ian Humphrey was riding a bicycle on Kapunda Road, north of Adelaide, when he was struck by driver Eugene McGee, an Adelaide barrister and former police prosecutor, at 5:05 pm on 30 November 2003. McGee did not stop or render assistance.

Timeline

30 November 2003
12:30 pm: McGee arrives at the Wheatsheaf Hotel outside Gawler, 39 kilometres (24 mi) north of Adelaide, to have lunch with his brother Craig and mother Marjorie. The tables order docket shows three bottles of white wine, a glass of port and a glass of beer are purchased.
3:50 pm: Eugene and Craig McGee leave the hotel to take their mother home to Kapunda, 32 kilometres (20 mi) north of Gawler.
3:40 – 4:00 pm: Ian Humphrey leaves his home at Evanston Park to cycle to Freeling on the Kapunda/Gawler road.
4:30 – 4:50 pm: McGee leaves his mother's house to return to Adelaide.
4:50 pm: Occupants of a car travelling through Kapunda notice a dark blue/green 4WD travelling in the same direction which began overtaking them in a dangerous manner on the right. A passenger thinks the driver may have been drinking.
5:00 pm: Antoni Zisimou sees a green Mitsubishi Pajero driving erratically and swaying over the centre line at a speed of about 160 km/h (99 mph) in a 110 km/h (68 mph) zone.
5:05 pm: Ian Humphrey is struck and killed.
5:05 pm: A car is ahead of McGee travelling in the same direction. The driver sees the impact in his rear view mirror. His wife notes the registration number of McGee's vehicle and telephones police.
5:08 pm: Benjamin & Irene Voroniansky who are driving in the opposite direction stop and call an ambulance. They estimate the speed of the Mitsubishi Pajero leaving the scene to be 90–100 km/h (56–62 mph).
5:11 pm: McGee makes the first of three phone calls to his lawyer David Edwardson.
5:33 pm: Phones his wife Barbara.
5:37 pm: Phones his brother Craig.
5:42 pm: Phones his mother Marjorie.
5:50 pm: Phones his brother Craig. Police attend the home of Eugene McGee.
5:50 – 6:46 pm: McGee makes six phone calls to relatives.
6:49 pm: Craig McGee phones Eugene McGee.
6:50 pm: Police attend McGee's mother's house in Kapunda and speak to Craig McGee who informs police he has not spoken to or seen his brother and does not have his mobile phone number.
6:57 pm: Craig McGee phones McGee to inform him the police have been, are looking for him, and they know his car was involved in the accident.
7:24 pm: Sergeant Mills phones McGee's wife Barbara who tells him she hasn't heard from McGee and doesn't know his whereabouts.
7:30 pm: Diana Gilchrist arrives at accident scene while searching for her overdue husband Ian Humphrey.
7:30 pm: Craig McGee drives his brother back to Adelaide via the Kapunda/Gawler road. They are stopped at a police roadblock set up to find McGee but do not identify themselves.
7:40 pm: A reporter arrives at Marjorie McGee's house in Kapunda and finds McGee's car there.
8:50 pm: After being informed the car has been located, Police call at Marjorie McGee's house but find it locked up with no one home.
9:09 pm: Matthew Selley phones Sergeant Mills and states he is a solicitor representing Eugene McGee. Selley requests the "state of play" with regard to the collision. Mills asks for Selley's phone number so Sergeant Hassell can speak to him.
9:10 – 10:05 pm: Sergeant Hassell makes several phone calls to Selley to make arrangements to interview McGee.
10:05 pm: Police phone Selley who states McGee is willing to hand himself in the following morning.
10:10 pm: Police phone Selley who gives them an address in Norwood where they can speak to McGee.
11:30 pm: Police speak to McGee who reads from a prepared statement. McGee is arrested and taken to the City Watchhouse. Both Sergeant Hassell and Senior Constable Bell noted they could smell alcohol on McGee while he was in the police car.

Trial

Initially, the Office of the Director of Public Prosecutions was unable to find a prosecutor willing to prosecute McGee as he was very well known in the legal community and there were fears the case would never go to trial. The case eventually went to trial in May 2005 where McGee was acquitted of causing death by dangerous driving, but convicted of the lesser offences of driving without due care and failure to stop and render assistance following an accident. This was due to psychiatric evidence of McGee exhibiting Posttraumatic stress disorder symptoms following the accident. Sandy McFarlane from the University of Adelaide stated the PTSD was due to "horrific experiences" during McGee's former career as a police officer and in dealing with the evidence in the Snowtown trials as a solicitor for one of the murderers. [1] McGee admitted he had not sought psychiatric or psychological treatment for the condition until 18 February 2004 (80 days after the incident) and no evidence of his erratic or dangerous driving prior to the accident was given at trial. He was fined $2,250 and was disqualified from holding a driver's licence for twelve months.

However, there was controversy over this conviction and the alleged reluctance of prosecutors to present evidence from Tony and John Zisimou who saw McGee's blue Pajero 4WD driving erratically at around 160 km/h (100 mph) approximately 1½ minutes before the accident (McGee's vehicle was actually green but television footage showed that at night, and under artificial lighting, it looked blue). Tony Zisimou's car was the third to stop at the scene and John, a nurse, declared the victim deceased and was credited for preserving the scene for police and preventing other witnesses from leaving before their arrival. There are also alleged anomalies concerning the behaviour of police in not breath testing McGee and the opportunity that major prosecution witness Tony Felice had to give evidence. Felice saw the accident in his mirror and his wife wrote the Pajero's plate number down as it continued down the road. At trial Sergeant Hassell gave evidence that while he knew he had the power to test for alcohol, they were short staffed and under pressure so it was not something he had considered at the time.

Groups supporting cyclists and victims of crime groups staged a number of protests against the decision of the court and the Government created the Royal Commission.

Royal Commission

Terms of reference

  1. Why the investigating police did not ask or require McGee to submit to a breath analysis test or blood test and did not apply for orders that such tests be conducted under the Criminal Law (Forensic Procedures) Act in order to determine McGee's blood alcohol concentration.
  2. Whether the principal witness, Mr Tony Felice, was given a proper opportunity to give evidence about his observations of Mr McGee's driving immediately before the collision generally and on the defence case that McGee was attempting to overtake Mr Felice from a position about 25 to 30 metres (82–98 ft) to the rear of Felice's car.
  3. Whether Mr Tony or Mr John Zisimou provided information to the police about the manner of McGee's driving prior to and following the collision.
  4. Why the decision was made not to call Mr Tony or Mr John Zisimou or both at trial.
  5. Whether it would have served the interests of justice for the prosecution to lead, at trial, evidence in rebuttal of the psychiatric evidence presented by the defence.
  6. If the answer to the preceding question is yes why that evidence was not presented. In particular, was there an adequate opportunity for rebuttal evidence to be presented.
  7. Whether it would have served the interests of justice for the prosecution to present expert psychiatric or other evidence on the sentencing hearing to support its submission that the Court should reject the explanation given at trial for Mr McGee's failure to stop and give assistance.
  8. If the answer to the preceding question is "yes", why that evidence was not presented. In particular, was there an adequate opportunity to present that evidence.

Proceedings

Proceedings commenced on 12 May 2005. Evidence was heard from lawyers involved in the trial, respected psychiatrists, police officers, witnesses and members of the McGee family. Members of the public also made submissions. Craig McGee exercised his right not to answer questions on the grounds of self-incrimination. McGee was represented by SA Bar Association president Malcolm Blue QC. Blue was later appointed a Supreme Court judge. [2]

Chris Tennant of Sydney University and another "very senior" professor of psychiatry were asked to review the psychiatric evidence and both concluded the evidence was not credible. Tennant stated; "I’ve never been more personally outraged about what I personally see as being a, in the common lingo, a mistrial, a travesty of the justice system." [1]

Proceedings concluded on 1 July 2005 with the final report submitted on 15 July.

Recommendations

Retraining of police. More extensive pretrial disclosure of expert evidence. Courts permitted to appoint independent experts. The law be changed to allow police to be able to forcibly enter premises for searches. The penalty for death by dangerous driving to be increased to the same level as manslaughter. Increased penalties for fleeing an accident. Attempting to disguise blood alcohol levels should be an offence.

Commissioner James also produced a second closed (secret) report of recommendations for relevant agencies and ministers. [3] It was the recommendations of this report that led to further charges being laid. [1]

Second trial

Charges of conspiring to pervert the course of justice and perverting the course of justice were laid against McGee and his brother Craig on 26 August 2005 over allegations they worked together to "frustrate, deflect or prevent" the police investigation into the hit and run in order to prevent police gaining "evidence of the blood-alcohol reading and sobriety of Eugene McGee". [4] On 10 March 2006 the defense asked for a stay of proceedings and the case was adjourned to 9 November, after several further stays the defense asked for a permanent stay on 17 July 2007 arguing that the publicity would mean the brothers would be unable to gain a fair trial. [5] The stay application was rejected on 14 February 2008, [6] however, they could not stand trial until 2 February 2010 because their lawyer would be "unavailable" until that date. [7] [8] On 2 February, citing as a precedent an immigration case before the British House of Lords in 1972, the case was again delayed until 17 March. The House of Lords had found that after failing to attend a meeting there was no statutory obligation for an Indian immigrant to turn himself in as he had not been directed to do so by the immigration department, which McGee's lawyer claimed was "directly analogous" to the case of McGee. [9] On 17 March, at a hearing that lasted less than a minute, District Court Judge Peter Herriman acquitted the McGees of the conspiracy charges finding that "There was no legal obligation then falling upon Eugene to surrender himself or upon either of them to assist police." [10]

Aftermath

McGee is still listed with the Law Society as a practising solicitor. Websites advertising his practice list McGee as a defence lawyer for charges of drunk driving, culpable driving and dangerous driving offences, which has caused anger in the community. Humphrey's widow Di Gilcrist stated, "He is actually profiting from the experience and the stigma that the case has afforded him...It is a sad reflection of the criminal justice system that something so black and white could be manipulated to absolve McGee of his lack of moral and ethical responsibility" [11] [12] Di Gilcrist subsequently complained to the legal board that McGee's actions [following the hit-run] amounted to professional misconduct. [13]

In April 2011, a hearing before the Legal Practitioners Conduct Board found McGee was not guilty of "infamous conduct" and ruled he could continue to practise. The Conduct Board accepted that McGee was suffering from post-traumatic stress disorder and ruled that it could only consider his actions in the first few seconds after the crash and could not consider his telephone calls to family, his legal adviser or his actions to avoid police. [13] Following the ruling, Senator Nick Xenophon said the outcome was a disgrace and the entire board should be sacked. Attorney-General John Rau stated he would review the Conduct Board's decision. [14]

On 8 December 2011 Attorney-General John Rau closed the McGee case after Crown legal advice suggested the Conduct Board's decision could not be challenged. Opposition justice spokesman Stephen Wade said Rau could overturn the Board's ruling not to ban Mr McGee from practising and challenged him to release the Crown's legal advice. Senator Xenophon told the media; "Show us the advice, otherwise his opinion and his decision not to act lacks credibility... Only by releasing the legal advice will the Attorney-General show he has a genuine commitment to justice in the McGee case". [15]

On 6 February 2012, McGee apologised on national television for the 2003 hit and run when he appeared in a two-part television special on the case on ABC's Australian Story . Humphrey's family claimed they had been denied justice and that McGee had never apologised to them face-to-face. McGee replied that an apology had been offered through his solicitor years before which had been rejected and it had not been repeated out of respect for the family's privacy. McGee stated: "Can I take this opportunity to extend my sympathy to the family for their loss. I'm sorry for what occurred and to apologise to them for my reaction to the accident." [16]

Following the Attorney-General's refusal to release the legal advice supporting his decision not to overturn the Board's ruling, on 18 February 2012, Senator Xenophon made a plea for the public to contact their MPs demanding that Attorney-General Rau take action. [17]

In October 2013, the South Australian Parliament amended the Legal Practitioners Act 1981 (SA) to replace the existing categories of "unsatisfactory conduct" and "unprofessional conduct", with the categories of "unsatisfactory professional conduct" and "professional misconduct". The changes to the definitions were designed to prevent a repeat of the Legal Practitioners Conduct Board's hearing that found McGee not guilty. [18]

Related Research Articles

<span class="mw-page-title-main">Central Park jogger case</span> 1989 crime in New York City

The Central Park jogger case was a criminal case concerning the assault and rape of Trisha Meili, a woman who was running in Central Park in Manhattan, New York, on April 19, 1989. Crime in New York City was peaking in the late 1980s and early 1990s as the crack epidemic surged. On the night Meili was attacked, dozens of teenagers had entered the park, and there were reports of muggings and physical assaults.

<span class="mw-page-title-main">2002 New Hampshire Senate election phone jamming scandal</span> Election phone jamming scandal

The 2002 New Hampshire Senate election phone jamming scandal involved the use of a telemarketing firm hired by that state's Republican Party (NHGOP) for election tampering. The tampering involved using a call center to jam the phone lines of a get out the vote (GOTV) operation. In the end, 900 calls were made for 45 minutes of disruption to the Democratic-leaning call centers.

The 1980 Miami riots were race riots that occurred in Miami, Florida, starting in earnest on May 18, 1980, following an all-White male jury acquitting four Dade County Public Safety Department officers in the death of Arthur McDuffie, a Black insurance salesman and United States Marine Corps lance corporal. McDuffie was beaten to death by four police officers after a traffic stop. After the officers were tried and acquitted on charges including manslaughter and evidence tampering, a riot broke out in the Black neighborhoods of Overtown and Liberty City on the night of May 17. Riots continued until May 20, resulting in at least 18 deaths and an estimated $100 million in property damage.

<span class="mw-page-title-main">Nick Xenophon</span> Australian politician (born 1959)

Nick Xenophon is an Australian politician and lawyer who was a Senator for South Australia from 2008 to 2017. He was the leader of two political parties: Nick Xenophon Team federally, and Nick Xenophon's SA-BEST in South Australia.

Andrew Mark Mallard was a British-born Australian who was wrongfully convicted of murder in 1995 and sentenced to life imprisonment. Almost 12 years later, after an appeal to the High Court of Australia, his conviction was quashed and a retrial ordered. However, the charges against him were dropped and Mallard was released. At the time, the Director of Public Prosecutions stated that Mallard remained the prime suspect and that if further evidence became available he could still be prosecuted. He was released from prison in 2006 after his conviction was quashed by the High Court, and was paid $3.25 million compensation by the state government. The Western Australian Commission on Crime and Corruption investigated whether there was misconduct by any public officer associated with this case and made findings against two policemen and a senior prosecutor.

Nicholas Freeman is an English lawyer best known for specialising in the defence of traffic and speeding cases as well as road safety campaigning. He is the owner of Manchester-based legal practice Freeman & Co.

<span class="mw-page-title-main">Disappearance of Maura Murray</span> 2004 disappearance of American woman

Maura Murray is an American woman who disappeared on the evening of February 9, 2004, after a car crash on Route 112 near Woodsville, New Hampshire, a village in the town of Haverhill. Her whereabouts remain unknown. Murray was a 21-year-old nursing student completing her junior year at the University of Massachusetts Amherst at the time of her disappearance.

Robert Donald William Farquharson is an Australian man convicted of murdering his three sons on 4 September 2005, by deliberately driving his car into a farm dam.

<span class="mw-page-title-main">Edward Sapiano</span> Canadian defence lawyer (d. 2020)

Edward Sapiano was a Canadian defence lawyer, based in Toronto, Ontario, notable for his role in many high-profile criminal cases. He initiated Canada's largest criminal investigation of police, resulting in the arrest and prosecution of several Toronto police officers and was also involved in the so-called Toronto 18 terrorism trial. Edward Sapiano is also noted for demanding immediate DNA testing of his client shortly following the 1996 arrest of the suspected "North York serial rapist", leading to his client Jeremy Foster's full vindication, despite a false confession to the crime. In his quest to get illegal guns off the street, Sapiano also created the only lawyer-operated gun amnesty program available in North America, Piece Options. He is also known for starting a database of rulings and judgements to track alleged misconduct among Toronto-area officers which was then retrievable for cross-examinations in other cases by other lawyers. Edward Sapiano, after putting his practice on hold for two and a half years due to kidney failure, returned to court in 2017 for the Andrea White murder trial. Edward died on March 21, 2020, from complications of kidney disease and was cited to be the first lawyer in Canada to practise while undergoing 10 hours of daily dialysis. He was regularly featured by media outlets, including The Globe and Mail, CBC, and the New York Times commenting on criminal law issues.

<span class="mw-page-title-main">Amanda Knox</span> Template for Amanda Knox

Amanda Marie Knox is an American author, activist, and journalist. She spent almost four years incarcerated in Italy after her wrongful conviction in the 2007 murder of Meredith Kercher, a fellow exchange student, with whom she shared an apartment in Perugia. In 2015, Knox was definitively acquitted by the Italian Supreme Court of Cassation. In 2024, an Italian appellate court upheld Amanda Knox's slander conviction for falsely accusing Patrick Lumumba of murdering Meredith Kercher.

The Nikki Catsouras photographs controversy concerns the leaked photographs of Nicole "Nikki" Catsouras, who died at age 18 in a high-speed car crash in Lake Forest, California, after losing control of her father's Porsche 911 Carrera and colliding with a toll booth. Photographs of Catsouras' badly disfigured body were published on the internet, leading her family to take legal action for the distress this caused.

<span class="mw-page-title-main">Anthony P. Capozzi</span> American lawyer (born 1945)

Anthony Patrick "Tony" Capozzi is an American trial attorney and political consultant and participant. During his legal career, he has worked as a solo practitioner, supervising Assistant United States Attorney, adjunct professor of law, and law clerk to Omer Poos of the United States District Court in Springfield, Illinois. He also served as the 79th President to the State Bar of California. He owns and practices law at the Law Offices of Anthony P. Capozzi and serves on the California Commission on Judicial Performance, a post California Governor Arnold Schwarzenegger appointed him to in 2010. Since 2005, Capozzi has been the exclusive legal and political consultant for KFSN-TV ABC 30.

<i>R v Sinclair</i> Supreme Court of Canada case

R v Sinclair2010 SCC 35 is a leading case from the Supreme Court of Canada on a detainee's right to counsel under section 10(b) of the Canadian Charter of Rights and Freedoms.

Corryn Veronica Ann Rayney, née Da Silva, migrated to Australia with her Indian family in 1973 as refugees from Idi Amin's Uganda. Her death occurred on or about 7 August 2007, her body being discovered a week later in a clandestine grave in Kings Park, Perth, with no clearly established cause of death. Her husband Lloyd Rayney, a prominent barrister specialising in criminal prosecution, was charged with her murder, but found not guilty after a trial before a judge only. The acquittal was unanimously upheld by a court of appeal in August 2013. The state's police commissioner and attorney general declined to acknowledge documented procedural mistakes, and refused to instigate a fresh search for the killers, leading to calls for a federal investigation into the matter.

Malcolm Fraser Blue is a Justice of the Supreme Court of South Australia and a reserve Justice of the Supreme Court of Victoria.

<span class="mw-page-title-main">Murder of Adrian Donohoe</span> Irish police officer murdered during an armed robbery in 2013

Adrian Donohoe was an Irish detective in the Garda Síochána based at Dundalk Garda Station in County Louth, who was fatally shot in Bellurgan on 25 January 2013 during a robbery by an armed gang of five people on a credit union. He was the first garda officer to be murdered in the line of duty since 1996, and was afforded a full state funeral.

On July 7, 2011, Richard Oland, a 69-year-old Canadian businessman and former vice-president for Moosehead Brewery, was bludgeoned to death in his office on Canterbury Street in Saint John, New Brunswick. His son, Dennis Oland, came under suspicion for the killing and was charged with second-degree murder.

Wichian Klanprasert, a Thai police officer, was killed by Vorayuth Yoovidhya, grandson of billionaire Red Bull co-founder Chaleo Yoovidhya, in a hit-and-run incident in Bangkok, Thailand, on 3 September 2012.

Elijah Doughty, a 14-year-old Indigenous Australian riding a motorbike, was involved in a fatal traffic collision with a ute on 29 August 2016, near Kalgoorlie, Western Australia. The 56-year-old white male driver of the ute was the owner of the motorbike, which had been stolen the previous day. Although he was chasing Doughty, it is unclear where Doughty got the bike and there is no evidence that Doughty had stolen it; his friends said that he was handed the bike at Gribble Creek Reserve, where he was killed.

Eugene McGee may refer to:

References

  1. 1 2 3 Road To Nowhere Part Two Australian Story Program transcript 13 February 2012
  2. ↑ "QC Malcolm Blue settles speeding case – and saves $31". Sunday Mail (SA) . 14 February 2009. Retrieved 30 January 2017.
  3. ↑ "Report of the Kapunda Road Royal Commission". Govt. of South Australia. Archived from the original on 13 March 2011. Retrieved 13 March 2011.
  4. ↑ McGee brothers to face charges The Advertiser 27 August 2005
  5. ↑ Archive for the 'McGee Contempt of Court Case' newspaper articles Wheels of Justice accessed 28 September 2013
  6. ↑ Hit-run lawyer and brother fail in bid to stay charges The Australian 15 February 2008
  7. ↑ Akerman, Pia (15 February 2008). "Hit-run lawyer and brother fail in bid to stay charges". The Australian.
  8. ↑ Fewster, Sean (4 June 2009). "Eugene McGree trial delayed until February". The Advertiser.
  9. ↑ Schriever, Jordanna (4 February 2010). "Eugene McGee tries to stall SA District Court hit-run trial for third time". Adelaide Now.
  10. ↑ Schriever, Jordanna (18 March 2010). "Eugene McGee and Craig McGee found not guilty of conspiracy over Kapunda Rd hit-run". Adelaide Now.
  11. ↑ "McGees found not guilty of conspiracy". ABC News. 18 March 2010.
  12. ↑ Schriever, Jordanna (19 March 2010). "Victim's family wants Eugene McGee disbarred". The Advertiser.
  13. 1 2 "Legal board takes no action on Eugene McGee". ABC News. 11 April 2011.
  14. ↑ "Legal board's McGee ruling under review". ABC Adelaide. 12 May 2011.
  15. ↑ Martin, Sarah (9 December 2011). "Hit-run lawyer toasts freedom". The Advertiser.
  16. ↑ Hegarty, Adam (6 February 2012). "Hit-run lawyer Eugene McGee makes TV apology to family of victim Ian Humphrey". The Advertiser.
  17. ↑ Xenophon, Nick (18 February 2012). "Xenophon: Hit-run lawyer Eugene McGee must face tribunal". The Advertiser.
  18. ↑ Kerrin. "Parliament Responds to McGee case on 10 Year Anniversary". News and Events from the Adelaide Law School. University of Adelaide . Retrieved 20 May 2015.
This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.