04 Feb, 2010 02:31 PM
The widow of a cyclist killed by a top lawyer in a hit-run crash says another bid by the man to avoid trial is frustrating.
The trial of lawyer Eugene McGee and his brother Craig McGee was to have started in the South Australian District Court on Thursday.
The brothers have been charged with conspiracy to attempt to pervert the course of justice.
But lawyers for the duo today applied to have the charge quashed, citing a 38-year-old ruling in a British court regarding an Indian immigrant.
“It’s extremely frustrating and extremely disappointing,” the cyclist’s widow, Di Gilcrist (Gilcrist), said outside the court.
“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 brothers have gone to the High Court in a failed attempt to avoid facing the charges.
They allegedly tried to impede police attempts to contact Eugene McGee after he was driving a car which struck and killed cyclist Ian Humphrey in 2003.
Eugene McGee, a former police prosecutor turned criminal lawyer, fled the scene, and he and his brother allegedly tried to deflect or impede police attempts to contact the lawyer for an alcohol breath test for hours after the accident.
Eugene McGee has told a previous court hearing he was drinking alcohol in the hours preceding the fatal crash. However, he was never breath or blood tested.
McGee in 2005 was found guilty of driving without due care and fined $3100 and disqualified from driving for a year.
The perceived light sentence prompted the SA government to rewrite laws and enact harsher penalties for the offence.
The McGee case was also the subject of a royal commission, which criticised police for their handling of the case and found their investigation was not undertaken appropriately, efficiently or expeditiously.
In court on Thursday, lawyers for the McGee brothers applied to quash the conspiracy to pervert justice charges.
Lindy Powell QC, for Craig McGee, spent 30 minutes detailing a 1972 British court ruling regarding an Indian who landed on the British coast where no immigration officers were present.
The Indian was subsequently charged with conspiracy to evade immigration officials but was found not guilty because there was no duty on him to present himself to immigration.
Ms Powell argued the principle of that case should apply to the McGees, saying that until the SA government changed the law, there was no requirement for a driver to present himself to police for an alcohol test.
“There is no implication drawn in the Road Traffic Act that there is any statutory obligation to present themselves for alcohol testing,” she told the court.
“It’s now become an obligation to present themselves to police officers but that of course is not operative in this case.”
Eugene McGee’s lawyer, Sam Abbott, joined the application to quash the charges and Judge Peter Herriman adjourned the case until tomorrow.