JORDANNA SCHRIEVER, COURT REPORTER From: AdelaideNow February 04, 2010 12:04pm
HIT-run lawyer Eugene McGee has fallen back on an almost 40-year-old English legal precedent – involving an Indian immigrant – to delay his conspiracy trial for a third time.
McGee and his brother Craig were due to stand trial in the District Court today for conspiring to pervert the course of justice over the death of cyclist Ian Humphrey in November 2003.
In 2005, Eugene was acquitted of causing death by dangerous driving, but was fined for driving without due care.
Later that year, the Kapunda Rd Royal Commission, which examined the police investigation and subsequent prosecution of Eugene as a result of community outrage at his sentence, the pair were charged with conspiracy.
It is alleged the pair conspired to avoid police after the incident to prevent Eugene being tested for alcohol.
The trial has already missed scheduled start dates in November 2009 and Monday this week.
Previously, the High Court refused to intervene and ban the trial from going ahead.
This morning, Lindy Powell, QC, for Craig McGee, told the court she would file an application to have the trial vacated. She said case law proved Eugene McGee was under no obligation to present himself to police for alcotesting after the crash.
She referred the court to a 1972 judgement by the House of Lords, in the case of an Indian citizen.
That man, she said, entered the UK without presenting himself to immigration for testing within 24 hours and was accused of hiding.
She said the Lords had ruled the onus was on the immigration department to ensure the man was directed to be tested making it “directly analagous” to the case of Eugene McGee.
“There is an obligation to comply with the direction, only if the direction was given,” Ms Powell said.
“There is no statutory obligation on anybody to present themselves to police officers.”
Sam Abbott, QC, for Eugene McGee said he supported Ms Powell’s application.
Emily Telfer, prosecuting, said she had only been made aware of the application “this morning” and was “in no position” to respond.
“I am very keen to move on with the trial,” she said.
“I’ve got witnesses from interstate here and other witnesses who have been put off (already).”
Judge Peter Herriman ordered the application be filed by noon.
Outside court, Mr Humphrey’s wife, Di Gilchrist said it was “typical” for the McGees to try and delay the case again.
“It’s unfinished business, it’s a shame that the system isn’t more accountable and more transparent and that it doesn’t do what it’s meant to do.”
The case returns to court tomorrow morning.