Kapunda Road Royal Commission
Encyclopedia
The Kapunda Road Royal Commission is a royal commission
created by the Government of South Australia
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 is Greg James QC. The first hearing of the Commission was on 12 May 2005 and the report was scheduled to be delivered on 20 June 2005.
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.
12:30pm: Eugene McGee arrives at the Wheatsheaf hotel in suburban 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 were purchased.
3:50pm: Eugene and Craig McGee leave the hotel to take their mother home to Kapunda, 77 kilometres (47.8 mi) north of Adelaide.
3:40 - 4:00pm: Ian Humphrey leaves his home at Evanston Park
to cycle to Freeling
on the Kapunda/Gawler road.
4:30 - 4:50pm: Eugene McGee leaves his mothers house to return to Adelaide.
4:50pm: Occupants of a car travelling through Kapunda noticed a dark blue/green 4WD travelling in the same direction which began overtaking them in a dangerous manner on the right. A passenger thought that the driver may have been drinking.
5:00pm: Antoni Zisimou saw a green Mitsubishi Pajero
driving erratically and swaying over the centre line at a speed of about 160 kph in a 110 km/h zone.
5:05pm: Ian Humphrey is struck and killed.
5:08pm: Benjamin & Irene Voroniansky who were 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.
5:11pm: Eugene McGee makes the first of three phone calls to his lawyer David Edwardson.
5:33pm: Phones his wife Barbara.
5:37pm: Phones his brother Craig.
5:42pm: Phones his mother Marjorie.
5:50pm: Phones his brother Craig. Police attend the home of Eugene McGee.
5:50 – 6:46pm: McGee makes six phone calls to relatives.
6:49pm: Craig McGee phones Eugene McGee.
6:50pm: Police attended Eugene McGee's mothers 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.
6:57pm: Craig McGee phones Eugene McGee to inform him that the police had been, are looking for him and that they know his car was involved in the accident.
7:24pm: Sergeant Mills phones McGee's wife Barbara who tells him she hasn't heard from McGee and doesn't know his whereabouts.
7:30pm: Diana Gilcrist arrives at accident scene while searching for her overdue husband Ian Humphrey.
7:30pm: Craig McGee drives his brother back to adelaide via the Kapunda/Gawler road. They are stopped at a police roadblock set up to find Eugene McGee but do not identify themselves.
7:40pm: A reporter arrived at Marjorie McGee's house in Kapunda and finds Eugene McGee's car there.
8:50pm: After being informed the car has been located, Police call at Marjorie McGee's house but find it locked up with no one at home.
9:09pm: 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 Selleys phone number so that Sergeant Hassell can speak to him.
9:10 - 10:05pm:Sergeant Hassell makes several phone calls to Selley to make arrangements to interview Eugene McGee.
10:05pm: Police phone Selley who states Eugene McGee is willing to hand himself in the following morning.
10:10pm: Police phone selley who gives them an address in Norwood
where they can speak to McGee.
11:30pm: 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 that they could smell alcohol on McGee while he was in the police car.
However, there was controversy over this conviction and also 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 witness 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.
Commissioner James also produced a second closed report of recommendations for relevant agencies and ministers.
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 analagous" to the case of Eugene McGee. 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."
Eugene McGee is still listed with the Law Society
as a practising solicitor. Websites advertising his practice list Mr McGee as a defence lawyer for charges of drink driving, culpable driving and dangerous driving offences which has caused anger in the community. Ian 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 Eugene McGee of his lack of moral and ethical responsibility" Di Gilcrist subsequently complained to the legal board that McGee's actions [following the hit-run] amounted to professional misconduct.
In April 2011, a hearing before the Legal Practitioners Conduct Board found McGee was not guilty of "infamous conduct" and ruled that 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. Following the ruling, Senator Nick Xenophon
said that the outcome was a disgrace and that the entire board should be sacked. Attorney-General John Rau
is currently reviewing the Conduct Board's descision.
Royal Commission
In Commonwealth realms and other monarchies a Royal Commission is a major ad-hoc formal public inquiry into a defined issue. They have been held in various countries such as the United Kingdom, Australia, Canada, New Zealand, and Saudi Arabia...
created by the Government of South Australia
Government of South Australia
The form of the Government of South Australia is prescribed in its constitution, which dates from 1856, although it has been amended many times since then...
to inquire into the circumstances surrounding the hit and run
Hit and run (vehicular)
Hit-and-run is the act of causing a traffic accident , and failing to stop and identify oneself afterwards...
death of Ian Humphrey and the circumstances around the trial and conviction of Eugene McGee. The Royal Commissioner is Greg James QC. The first hearing of the Commission was on 12 May 2005 and the report was scheduled to be delivered on 20 June 2005.
Background
Ian Humphrey was riding a bicycleBicycle
A bicycle, also known as a bike, pushbike or cycle, is a human-powered, pedal-driven, single-track vehicle, having two wheels attached to a frame, one behind the other. A person who rides a bicycle is called a cyclist, or bicyclist....
on Kapunda Road, north of Adelaide
Adelaide
Adelaide is the capital city of South Australia and the fifth-largest city in Australia. Adelaide has an estimated population of more than 1.2 million...
, 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 200312:30pm: Eugene McGee arrives at the Wheatsheaf hotel in suburban 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 were purchased.
3:50pm: Eugene and Craig McGee leave the hotel to take their mother home to Kapunda, 77 kilometres (47.8 mi) north of Adelaide.
3:40 - 4:00pm: Ian Humphrey leaves his home at Evanston Park
Evanston Park, South Australia
Evanston Park is a northern suburb of Adelaide, South Australia in the Town of Gawler.-References:...
to cycle to Freeling
Freeling, South Australia
Freeling is a small town in South Australia, about 60 km north of Adelaide. It neighbours the Barossa Valley wine region. At the 2006 census, Freeling had a population of 1,325....
on the Kapunda/Gawler road.
4:30 - 4:50pm: Eugene McGee leaves his mothers house to return to Adelaide.
4:50pm: Occupants of a car travelling through Kapunda noticed a dark blue/green 4WD travelling in the same direction which began overtaking them in a dangerous manner on the right. A passenger thought that the driver may have been drinking.
5:00pm: Antoni Zisimou saw a green Mitsubishi Pajero
Mitsubishi Pajero
The Mitsubishi Pajero is a sport utility vehicle manufactured by Mitsubishi Motors. It was named after Leopardus pajeros, the Pampas Cat which is native to the Patagonia plateau region of southern Argentina. However, since pajero is an offensive term for "wanker" in Spanish, alternative names have...
driving erratically and swaying over the centre line at a speed of about 160 kph in a 110 km/h zone.
5:05pm: Ian Humphrey is struck and killed.
5:08pm: Benjamin & Irene Voroniansky who were 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.
5:11pm: Eugene McGee makes the first of three phone calls to his lawyer David Edwardson.
5:33pm: Phones his wife Barbara.
5:37pm: Phones his brother Craig.
5:42pm: Phones his mother Marjorie.
5:50pm: Phones his brother Craig. Police attend the home of Eugene McGee.
5:50 – 6:46pm: McGee makes six phone calls to relatives.
6:49pm: Craig McGee phones Eugene McGee.
6:50pm: Police attended Eugene McGee's mothers 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.
6:57pm: Craig McGee phones Eugene McGee to inform him that the police had been, are looking for him and that they know his car was involved in the accident.
7:24pm: Sergeant Mills phones McGee's wife Barbara who tells him she hasn't heard from McGee and doesn't know his whereabouts.
7:30pm: Diana Gilcrist arrives at accident scene while searching for her overdue husband Ian Humphrey.
7:30pm: Craig McGee drives his brother back to adelaide via the Kapunda/Gawler road. They are stopped at a police roadblock set up to find Eugene McGee but do not identify themselves.
7:40pm: A reporter arrived at Marjorie McGee's house in Kapunda and finds Eugene McGee's car there.
8:50pm: After being informed the car has been located, Police call at Marjorie McGee's house but find it locked up with no one at home.
9:09pm: 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 Selleys phone number so that Sergeant Hassell can speak to him.
9:10 - 10:05pm:Sergeant Hassell makes several phone calls to Selley to make arrangements to interview Eugene McGee.
10:05pm: Police phone Selley who states Eugene McGee is willing to hand himself in the following morning.
10:10pm: Police phone selley who gives them an address in Norwood
Norwood, South Australia
Norwood is a suburb of Adelaide, about 4 km east of the Adelaide city centre. The suburb is in the City of Norwood Payneham & St Peters, the oldest South Australian local government municipality, with a city population over 34,000.-History:...
where they can speak to McGee.
11:30pm: 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 that they could smell alcohol on McGee while he was in the police car.
Trial
At his trial 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 being presented in court mitigating his actions. McGee admitted he had not sought psychiatric or psychological treatment for the condition until 18 February 2004 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 also the alleged reluctance of prosecutors to present evidence from Tony and John Zisimou who saw McGee's blue Pajero
Mitsubishi Pajero
The Mitsubishi Pajero is a sport utility vehicle manufactured by Mitsubishi Motors. It was named after Leopardus pajeros, the Pampas Cat which is native to the Patagonia plateau region of southern Argentina. However, since pajero is an offensive term for "wanker" in Spanish, alternative names have...
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 witness 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.
Terms of reference
- Why the investigating police did not ask or require Mr McGee to submit to a breath analysis testBreathalyzerA breathalyzer or breathalyser is a device for estimating blood alcohol content from a breath sample...
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 Mr McGee’s blood alcohol concentration. - 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 to the rear of Felice’s car.
- 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.
- Why the decision was made not to call Mr Tony or Mr John Zisimou or both at trial.
- 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.
- 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.
- 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 it’s submission that the Court should reject the explanation given at trial for Mr McGee’s failure to stop and give assistance.
- 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
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.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 report of recommendations for relevant agencies and ministers.
Aftermath
Charges of conspiring to pervert the course of justice and perverting the course of justice were laid against McGee and his brother Craig 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". However, they could not stand trial until 2 February 2010 because their lawyer was "unavailable" until that date. On 2 February, citing as a precedentPrecedent
In common law legal systems, a precedent or authority is a principle or rule established in a legal case that a court or other judicial body may apply when deciding subsequent cases with similar issues or facts...
an immigration case before the British House of Lords
House of Lords
The House of Lords is the upper house of the Parliament of the United Kingdom. Like the House of Commons, it meets in the Palace of Westminster....
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
Indian people
Indian people or Indisians constitute the Asian nation and pan-ethnic group native to India, which forms the south of Asia, containing 17.31% of the world's population. The Indian nationality is in essence made up of regional nationalities, reflecting the rich and complex history of India...
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 analagous" to the case of Eugene McGee. 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."
Eugene McGee is still listed with the Law Society
Law society
A Law Society in current and former Commonwealth jurisdictions was historically an association of solicitors with a regulatory role that included the right to supervise the training, qualifications and conduct of lawyers/solicitors...
as a practising solicitor. Websites advertising his practice list Mr McGee as a defence lawyer for charges of drink driving, culpable driving and dangerous driving offences which has caused anger in the community. Ian 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 Eugene McGee of his lack of moral and ethical responsibility" Di Gilcrist subsequently complained to the legal board that McGee's actions [following the hit-run] amounted to professional misconduct.
In April 2011, a hearing before the Legal Practitioners Conduct Board found McGee was not guilty of "infamous conduct" and ruled that 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. Following the ruling, Senator Nick Xenophon
Nick Xenophon
Nicholas "Nick" Xenophon is a South Australian barrister, anti-gambling campaigner and politician. He attended Prince Alfred College, and studied law at the University of Adelaide, attaining his Bachelor of Laws in 1981. Xenophon established and became principal of his own law firm, Xenophon & Co....
said that the outcome was a disgrace and that the entire board should be sacked. Attorney-General John Rau
John Rau
John Robert Rau , Australian politician, is the current South Australian Deputy Premier and Attorney-General. He has been an Australian Labor Party member of the House of Assembly seat of Enfield since 2002.-Legal career:...
is currently reviewing the Conduct Board's descision.