Kapunda Road Royal Commission

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.

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 Adelaide University 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.

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 it's 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 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.

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]