R v McGee

Case [2008] SASC 328

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v MCGEE & MCGEE

[2008] SASC 328

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Doyle, The Honourable Justice Gray and The Honourable Justice White)

26 November 2008

CRIMINAL LAW - PROCEDURE - PLEAS - PLEAS IN BAR - PLEA OF AUTREFOIS ACQUIT OR AUTREFOIS CONVICT - WHETHER VALID PLEA - OTHER CASES

First appellant struck and killed cyclist after consuming an amount of alcohol – first appellant convicted of driving offences – sentencing judge found as a mitigating factor that first appellant was in a dissociative state after the accident – after sentence imposed for offences of first appellant, both appellants charged with conspiracy to attempt to pervert the course of justice – prosecution indicated that it would adduce evidence at trial that first appellant was not in a dissociative state – appellants sought stay of criminal proceedings in District Court – appeals from dismissal of an application to stay proceedings – whether the DPP can controvert factual findings made in the course of sentencing first appellant for driving offences.

Held: incontrovertibility operates when there is an inconsistency between a verdict in earlier proceedings and an assertion made in later proceedings – principle does not apply to facts found at sentencing hearings, other than those necessarily arising out of a verdict – prosecution's intent to controvert findings of sentencing judge does not give rise to such unfairness or oppression such as to warrant stay of the proceedings – appeals against the refusal of a stay dismissed.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS - PRE-TRIAL PUBLICITY

Appeals from dismissal of application to stay proceedings – first appellant failed to stop to render assistance after striking a cyclist – first appellant convicted of driving offences – widespread dissatisfaction with penalty imposed on first appellant in relation to driving offences – acute public interest in the case necessitating Royal Commission – publicity included reference to the circumstances of the accident and the appellants’ subsequent conduct – both appellants subsequently charged with conspiracy to attempt to pervert the course of justice – appellants sought stay of criminal proceedings in District Court – whether the publicity about the circumstances giving rise to the charge resulted in a significant and substantial risk that the appellants would not receive a fair trial sufficient to require a stay of proceedings.

Held: pre-trial publicity not such as to give rise to an unacceptable risk of an unfair trial – appeals against the refusal of a stay dismissed.

CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - ATTEMPT - PARTICULAR OFFENCES - ATTEMPT TO PERVERT THE COURSE OF JUSTICE

CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - CONSPIRACY - GENERALLY

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS - ABUSE OF PROCESS - IN GENERAL

Appeals from dismissal of…

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AGLC
R v McGee [2008] SASC 328
Case
[2008] SASC 328
Decision Date

CaseChat Overview and Summary

The appellants, Mr E McGee and Mr C McGee, were convicted of conspiracy to attempt to pervert the course of justice. They appealed against the dismissal of an application to stay the criminal proceedings against them. The appeals were heard in the South Australian Court of Criminal Appeal. The central issue before the court was whether the Director of Public Prosecutions (DPP) could controvert factual findings made in the course of sentencing Mr E McGee for his driving offences, and if the pre-trial publicity about the circumstances of the accident and the appellants' subsequent conduct warranted a stay of the proceedings.

The court held that the principle of incontrovertibility, which prevents the relitigation of facts found in earlier proceedings, does not apply to facts found at sentencing hearings unless they are necessarily arising out of a verdict. The court also determined that the prosecution's intent to controvert the sentencing judge's findings did not give rise to unfairness or oppression sufficient to warrant a stay of the proceedings. Regarding the pre-trial publicity, the court found that it did not create an unacceptable risk of an unfair trial, thus dismissing the appeals.

The court further examined whether the conduct alleged by the prosecution was capable of establishing the charge of conspiracy to attempt to pervert the course of justice. The court concluded that the conduct occurring during the police investigation, prior to the commencement of the proceedings, could legally amount to a conspiracy. Additionally, the court found that the circumstances of the offence were not "otherwise dealt with" by other sections of the Criminal Law Consolidation Act 1935 (SA), and therefore s 256 could apply. The court dismissed the argument that the prosecution was bound to fail and that the proceedings constituted an abuse of process.

In conclusion, the appeals were dismissed, and the court upheld the decision to proceed with the criminal proceedings against the appellants.

Orders

Orders of the court

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Background

Background to the litigation

Before considering the submissions, I propose to outline the history of the case. Further detail is to be found in the comprehensive reasons provided by the District Court Judge in McGee No 2. I propose also to deal with the publicity about which complaint was made, and with the sentencing of Mr E McGee in relation to the related offences.Background The facts upon which the applications were made to the District Court Judge are not as clear as they might have been. What follows is drawn from the reasons of the Judge and from submissions to the Court. As far as I am aware, what follows is common ground between the parties, at least for the purposes of the applications made to the District Court. On Sunday 30 November 2003 Mr E McGee consumed a quantity of alcohol at a hotel at Allendale North between about 1.00 pm and 4.20 pm. Mr C McGee was with him at the time. At about 4.20 pm Mr E McGee left the hotel to drive to Adelaide. At about 5.05 pm his vehicle (a four wheel drive) struck and killed Mr Humphrey who was riding his bicycle along the Gawler to Kapunda Road, in the same direction as Mr E McGee. Mr Humphrey died almost instantly. Mr E McGee did not stop to render assistance. He continued driving until he came to Roseworthy Road, where he turned off the main road. The prosecution will contend that he believed that he had killed the cyclist, believed that his driving may have been impaired by the alcohol he had consumed, and decided to evade detection by the police with a view to avoiding having to undergo a breath analysis or a blood alcohol test. At 5.11 pm Mr E McGee contacted Mr Edwardson (a barrister) by mobile telephone. There were several telephone calls between them until after 8.00 pm. At 5.37 pm Mr E McGee telephoned his brother, Mr C McGee. There was then a series of phone calls between them until 6.49 pm. At the time of the first call to Mr C McGee he was returning to the Riverland. He turned around and drove his motor vehicle to the home of Mrs McGee (their mother) at Kapunda. At about 6.50 pm two police officers went to Mrs McGee’s home. They spoke to Mr C McGee. He told them that he had not seen Mr E McGee, and he did not have his mobile telephone number. There were three further telephone calls between Mr E McGee and Mr C McGee close to 7.00 pm. Not long after this Mr E McGee arrived at Mrs McGee’s home, and left his vehicle there. It was observed to be there at 7.50 pm. Mr C McGee set out to drive Mr E McGee to Adelaide in Mr C McGee’s motor vehicle. Along the way they drove through a police roadblock. They went to Mr E McGee’s home in Adelaide, and then to the home of Mr Edwardson. There was telephone contact during the course of the evening between Mr E McGee’s legal representatives and police. At about 11.30 pm Mr E McGee presented himself to police and was arrested. On 1 December 2003 Mr E McGee was charged with causing death by dangerous driving, failing to stop following a collision which resulted in the death of another person, and failing to render assistance.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In these circumstances, my reasons have addressed only the offence presently alleged against the appellants.Conclusion For these reasons and those given by the Chief Justice I would dismiss each of the appeals.

Ratio Decidendi

Legal Principle Established

The first basis of the submission is that the evidence to be relied upon by the DPP cannot prove the charge. A jury could never be satisfied beyond reasonable doubt that the McGees entered into an agreement as alleged in the particulars (see above). Ms Powell QC, for Mr C McGee, supports this submission and put submissions relating to the distinct position of her client. The second basis of the submission is that the circumstances relied upon by the DPP cannot establish an offence against s 256 of the CLCA. That section provides:256—Attempt to obstruct or pervert course of justice or due administration of law(1) A person who attempts to obstruct or pervert the course of justice or the due administration of the law in a manner not otherwise dealt with in the preceding provisions of this Part is guilty of an offence.Penalty: Imprisonment for 4 years.(2) Where—(a)a person charged with an offence against any of the preceding provisions of this Part is found not guilty of the offence charged; but(b)the court is satisfied that the accused is guilty of an offence against subsection (1),the court may, if the maximum penalty prescribed for an offence against subsection (1) is the same as or less than the maximum penalty prescribed for the offence charged, find the accused guilty of an offence against subsection (1).Mr Game submits that the conduct the subject of the charge is made punishable by another provision of Part 7 of the CLCA (the part that contains s 256), and so the attempt to obstruct or pervert the course of justice that is alleged is an attempt that is “otherwise dealt with” in a provision of Part 7. I repeat the concern that I expressed earlier, that the factual basis of the submission is not as clear as it might be. The submission was put by reference to the manner in which the DPP has indicated it will put its case, with occasional references to aspects of the evidence that would be led. By this I mean the declarations filed for the purposes of the committal proceedings, which declarations were tendered before the Judge. The parties proceeded on the basis that it was not necessary to examine the evidence in any detail, perhaps because many of the facts were not in dispute, the real issue being the inferences to be drawn from them. I take the same approach. Criminal proceedings should be stayed at the outset on the basis that they are bound to fail only if it is clear that the prosecution case will inevitably fail. In Walton v Gardiner (1992-1993) 177 CLR 378 the High Court considered the power of a court to stay proceedings as an abuse of process. It is not necessary to go into the details of the case. The majority (Mason CJ, Deane and Dawson JJ) said at 392-393:The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness. Thus, it has long been established that, regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail. … Footnote omittedBrennan J dissented in the result. Relevant to the point now under consideration he said that proceedings were incapable of serving a legitimate purpose if they would “inevitably and manifestly fail”: at 411.