R v McGee & McGee - [2010] SADC 36

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v MCGEE & MCGEE
Criminal Trial by Judge Alone
[2010] SADC 36
Reasons for the Verdict of His Honour Judge Herriman
17 March 2010
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES RELATING TO THE ADMINISTRATION OF JUSTICE - PERVERTING THE COURSE OF JUSTICE
Charge of common law conspiracy to commit statutory offence of attempt to pervert the course of justice contrary to s 256(1) of CLCA.
Accused share lunch in country hotel and consume alcohol. Following fatal accident involving second accused's vehicle, second accused fails to stop - first and second accused agree to meet and assist second accused to see lawyer before he surrenders to police.
Allegation that course of justice sought to be perverted by agreement said to be designed to deny a court true knowledge of matters relevant to potential charges arising from collision, namely, facts concerning the second defendant's blood alcohol level and sobriety.
Discussion of requirements for conspiracy and elements of offence under s 256(1) - whether conduct relied upon ‘otherwise dealt with’ in Part 7 of CLCA - whether agreement or combination for asserted unlawful purpose proved - circumstantial evidence.
Verdict as to each accused – not guilty.
Criminal Law Consolidation Act 1935 (SA) ss 241, 243, 256(1); Criminal Law (Forensic Procedures) Act 1998 (SA); Road Traffic Act 1961 (SA) (as at Nov. 2003) ss 43, 47B, 47G, referred to.
R v Perry (No 2) (1981) 28 SASR 95; Evans v Hartigan (1941) 41 SR(NSW) 179; R v Hendrie (1985) 37 SASR 581; Shepherd v The Queen (1990) 170 CLR 573; R v Trimboli (1979) 21 SASR 577; R v Taufahema (2007) 228 CLR 232; Spence v Demasi (1988) 48 SASR 536; M v The Queen (1994) 62 SASR 364; R v Machin (No 2) (1997) 69 SASR 403; Ahern v The Queen (1988) 165 CLR 87; R v Masters (1992) 26 NSWLR 450; R and Attorney-General (Cth) v Associated Northern Collieries (1911) 14 CLR 387; R v Rogerson (1992) 174 CLR 268; Meissner v The Queen (1995) 184 CLR 132; R v Vreones [1891] 1 QB 360; Segal v R (1995) 45 CCC 32; R v Moran & Mokbel [1999] 2 VR 87, applied.
R v McGee & McGee [2008] SASC 328, discussed.

R v MCGEE & MCGEE
[2010] SADC 36
Introduction

Craig Patrick McGee and Eugene Norman McGee are charged with the offence of conspiracy to attempt to pervert the course of justice.
The alleged conspiracy is one at common law and the basic offence involved in it is of attempting to pervert the course of justice in breach of s 256(1) of the Criminal Law Consolidation Act 1935 (‘CLCA’).
The particulars alleged are that the accused conspired to attempt to pervert the course of justice by agreeing to frustrate, deflect or prevent members of the South Australian Police Force from investigating or adducing evidence of the blood alcohol level and sobriety of Eugene McGee at the time of a collision between a vehicle driven by Eugene McGee and a bicycle ridden by Ian Humphrey which occurred near Kapunda on 30 November 2003, by preventing or impeding members of the police force, in particular those charged with the investigation into the circumstances of the collision, from making contact with Eugene McGee for a period of hours after the collision.
Background
The accused Craig McGee (‘Craig’) is a school teacher who, at relevant times, was working in the Riverland. His brother, the accused Eugene McGee (‘Eugene’), is a barrister and solicitor who has been practising in Adelaide since 1984. Prior to then he served for some 17 years as a police officer, for the last two years in police prosecutions.
Their mother was at relevant times living at Kapunda, a country town north of Adelaide.
On 30 November 2003 the two brothers met their mother and went for lunch with her to a hotel in Allendale North, a short distance away from Kapunda. They remained there for about three hours, in the course of which they had lunch and consumed alcohol. At about 4.40 that afternoon Craig set off to return to the Riverland and soon afterwards Eugene left for his own home in Adelaide.
At 5.08 p.m., whilst travelling south along the Thiele Highway, Eugene’s Mitsubishi Pajero (‘Pajero’) collided with a cyclist, Ian Humphrey, who was travelling in that same direction and, as a result, Mr Humphrey was killed. Eugene did not stop his car after the collision. He was subsequently involved in a number of telephone conversations with his friend and barrister, David Edwardson (‘Edwardson’), his wife, his mother and Craig.
At some time after 7 p.m. Eugene returned to his mother’s house in Kapunda. Craig, who had already returned there, then drove him to Adelaide to see his solicitor and barrister.
In the meantime, police had information as to the identity of Eugene’s vehicle and had conducted a fruitless search for it.
At about 9.15 p.m. Eugene’s solicitor contacted the police and at about 11.30 p.m. police went to Edwardson’s residential address, where they had a brief discussion with Eugene and arrested him.
On 1 December 2003 Eugene was charged with causing death by dangerous driving, failing to stop following a collision and failing to render assistance. He pleaded not guilty to the first charge but guilty to the second and third matters. On 15 April 2005 a jury found him not guilty of causing death by dangerous driving but guilty of the alternative offence of driving without due care, and on 28 April 2005 he was sentenced on all counts to a non-custodial penalty.
On 3 May 2005 the government announced the establishment of a Royal Commission to enquire into the collision, the manner in which the police investigation of it was conducted and into the conduct of the trial by the Office of the Director of Public Prosecutions. The Royal Commissioner reported to the government on 15 July 2005 and, following that report, the accused were charged with conspiracy to pervert the course of justice. The precise description and particulars of that charge have undergone substantial amendment since that time. On 3 October 2006 both accused were committed to stand trial in this court.
The trial has then been delayed as a result of applications brought by the accused to quash the information on the ground that it charged an offence not known to the law of South Australia and otherwise for a stay of proceedings on the ground that their continuation would amount to an abuse of process. Those applications were dismissed by a judge of this Court. An appeal lodged against that decision was unsuccessful and ultimately special leave to appeal to the High Court was sought but refused on 1 May 2005.
The accused subsequently elected for trial by judge alone and the matter came on for hearing before me, sitting as a judge alone.
During the course of the trial and by consent I received into evidence a statement of agreed facts, together with transcripts of the evidence given by each of the accused in the previous trial of the second accused in this court. It was common ground that the evidence contained in those transcripts was not cross‑admissible, but was admissible against the accused who gave it for limited purposes. It should also be noted that the other evidence in that previous trial and in the Royal Commission, and indeed the report of the Royal Commissioner, were not before me.
After a hearing concluding on 24 February 2010 I reserved consideration of my verdicts, which I have now delivered, and these are my reasons.
Evidence
- General Evidence
In this part I propose to discuss the prosecution evidence but without regard to the contents of the transcripts of evidence of Eugene and Craig and without regard to the psychiatric evidence relating to Eugene.
Kapunda is a country town some 70 kilometres north of Adelaide, accessible via the Sturt Highway to the vicinity of Gawler and from there via the Thiele Highway. Allendale North is a hamlet some few kilometres north of Kapunda.
It is an agreed fact that Eugene was employed by the South Australian police as a sworn police officer between March 1973 and March 1980. He first worked as a cadet, then on general patrols, and subsequently trained as a police prosecutor, finishing his training in March 1978. He served in that capacity until March 1980.
He was admitted to practice as a barrister and solicitor on 17 December 1984 and continued to hold a practising certificate at all relevant times.
It is evident from his work as a police prosecutor and, as well, from the length and nature of his involvement in legal practice, the evidence of witnesses McDonald and Surman and, indeed, the concessions of his own counsel, that Eugene had had considerable experience in dealing with criminal prosecutions, including traffic matters involving the use of alcohol and, for reasons expressed elsewhere, I am satisfied and find that he was, at the time of the collision, alert to:
(1)the power of the police under the Road Traffic Act 1961 (‘RTA’) (and assuming the existence of the requisite belief on reasonable grounds) to require a person to submit to an alcotest or a breath analysis within two hours of driving a motor vehicle;
(2)the legal presumptions attaching to the results of any such test;
(3)the evidentiary value, in the prosecution of a person for any offence involving the use of a motor vehicle, of police observations of that person’s apparent sobriety made within a reasonable time of any driving.
At the relevant time Eugene was living in Collinswood, a suburb of Adelaide.
Craig was relief teaching in the Riverland and staying at the home of Mr and Mrs Andrew.
Eugene, Craig and their mother arrived at the Wheatsheaf Hotel at Allendale North at 12.40 to 12.45 p.m. on the day in question. They remained there until some time after 3.48 p.m., at which time Eugene paid the account.
I am satisfied on the evidence that each of them consumed a savoury pancake meal for lunch. The hotel account otherwise records the purchase of three bottles of Pikes Semillon Sauvignon Blanc wine, a glass of port and lemonade and one bottle of beer. The time at which the drinks were ordered is nowhere recorded, but the food orders were placed at 1.15 p.m.
Putting aside the separate evidence of Eugene and Craig given in the previous trial, there is no independent evidence as to:
(1)whether all of the alcohol so ordered was consumed;
(2)who drank what and how much.
It may readily be inferred that two bottles of white wine were consumed before the third was ordered but there is no evidence as to whether the third bottle of wine was consumed in part or in its entirety; it is conceded as possible that it was not fully consumed and that the bottle of beer may have been erroneously included on the account.
I infer from the evidence that Mrs McGee was then returned to her residence at 5 Rowett Street, Kapunda and that subsequently Craig and Eugene left those premises by car for their separate destinations at Winkie and Adelaide.
The evidence of Mrs Andrew discloses that it had been Craig’s professed intention to stay overnight at Kapunda but that he changed his mind about that and called her to tell her that he would be coming back that Sunday night. I further infer from the evidence that he left Kapunda for Winkie at about 4.40 p.m. that afternoon.
At some time before 5 p.m. Eugene left Kapunda for Adelaide, driving his Pajero four-wheel-drive vehicle. Given the distance of the accident scene from Rowett Street and the time of the collision, common sense would suggest that he would not likely have left Kapunda any later than about 4.45 p.m.
At 5.08 p.m., at a point some 30 kilometres south of Kapunda on the Thiele Highway, he collided with Mr Humphrey, who was cycling in the same direction. I infer from the nature of the collision and the evidence that the collision likely resulted in Mr Humphrey’s body being propelled into the front windscreen of the Pajero.
Eugene did not stop his vehicle after the collision and continued for some three kilometres in a southerly direction along Thiele Highway before turning left from it into Roseworthy Road. The evidence of Mr and Mrs Hayman discloses that they observed him perform that manoeuvre as they were approaching that intersection from the east. Both noted that the driver did not acknowledge their presence and was simply looking ahead. Mrs Hayman in particular commented that he displayed no emotion and was ‘staring blankly straight ahead’ (T/S 76).
Thereafter the evidence does not clearly establish what Eugene did or what route he took, but it is readily apparent and I infer from all the evidence that he returned to Rowett Street at some time after 7.06 p.m. that evening and met Craig there.
Other evidence discloses that Craig had reached the vicinity of Blanchetown, which was approximately one hour equidistant from Kapunda and Winkie, when he turned around and drove back to Kapunda. He related as much to Mrs Andrew. Sergeant Talbot met him at Rowett Street at 6.50 p.m. and that is generally consistent with his having undertaken a two-hour round trip commencing at about 4.40 p.m. Talbot then had a conversation with him, in the course of which I am satisfied he conveyed to Talbot the impression that he knew nothing about the accident or Eugene’s whereabouts and he falsely denied having Eugene’s telephone number. After that conversation, police departed from Rowett Street.
Other independent evidence discloses the following matters:
(1)At the time Talbot went to Rowett Street and spoke to Craig, the Pajero was not present there.
(2)There is a quarry on the outskirts of Kapunda known as the Mantina Quarries and it is some two kilometres distant from Rowett Street. Access is gained to it via East Terrace but its gates were closed at the relevant time.
(3)Agreed evidence and a scaled map (Exhibit P3) disclose that the township of Greenock is some 16 kilometres east of the approximate point of the collision and approximately 15 kilometres south of Kapunda.
(4)Police had information that Eugene’s Pajero was the vehicle involved in the collision and between 5.45 and 6.45 p.m. they searched roads in the vicinity of the Thiele and Sturt Highways and the townships of Roseworthy and Freeling but were unable to locate it.
(5)Prior to and after 6.50 p.m. police officers Talbot and Adamson searched for the Pajero in and around the town of Kapunda, but unsuccessfully.
(6)It is agreed that at the time Mrs McGee had early onset dementia, she gave no evidence in this or previous matters and is now deceased.
(7)At 5.33 p.m. Craig attempted to call Eugene by mobile phone but there was no answer. At 5.37 p.m. Eugene appeared to make contact with Craig’s mobile and I infer they spoke for five minutes. I infer at 5.50 p.m. there was a further conversation between them lasting one minute and 30 seconds. At 6.11 p.m. there was contact for 30 seconds but, on all the evidence, with respect to that last call it cannot safely be inferred that the parties actually spoke to each other.
(8)There is then a series of six telephone connections between Craig’s and Eugene’s mobiles commencing at 6.42 p.m. and ending at 7.06 p.m. Of those calls, three appear to have been for less than 30 seconds and, based on other evidence, I am not prepared to infer the parties then spoke with one another. Even so, I am satisfied there was likely some communication in two other calls each of a minute and one call of 45 seconds.
(9)Between the time of the accident and 7.06 p.m., Eugene participated in a large number of telephone calls to or from other people. Again having regard to the telephone evidence, I am not disposed to infer that in a call recorded as having a duration of 30 seconds or less, connection was necessarily made with the other service to the extent that any conversation likely took place, but I am satisfied that any calls lasting beyond that period likely did result in some conversation.
I have separately dealt with the calls between Eugene and Craig but it is convenient at this point to list those calls which took place between Eugene and other parties and particularly those where I am satisfied it was likely some communication occurred:
·At 5.11 p.m., some three minutes after the accident, Eugene called Edwardson. The call lasted 44 seconds and appears to have been routed through a transmitting tower close to the accident scene. Over the next two minutes, there were three further calls made by him to Edwardson, respectively lasting 10 seconds, four seconds and 75 seconds.
·Between 5.16 and 5.28 p.m. there were three calls from Edwardson to Eugene, variously of three seconds, 30 seconds and five minutes.
·Thus it appears that within about 17 minutes there were seven telephone connections between Eugene and Edwardson but four of them were very brief and their duration leads me to infer that they were calls that either dropped out or where connections were not successfully achieved. Additionally, in that period two calls made to Eugene’s telephone were diverted to voice mail but the origin of those calls is not known.
·At 5.33 p.m. Eugene telephoned a number registered to his chambers but which, on the agreed evidence, was the number of a mobile phone then in the possession of his wife. The call was routed via a telephone tower in Kapunda and lasted for 156 seconds and was followed almost immediately afterwards by a lengthy call from his wife to Edwardson. There was subsequent voice mail contact between his wife and Edwardson through mobile and landline services.
·At 5.37 p.m. Eugene telephoned his mother and spoke to her for nearly four minutes. That call was routed through the Kapunda tower.
·At 5.50 p.m. Eugene called Edwardson but, again, it appears from that and subsequent telephone records that there was some difficulty in making a connection, as the first three attempts lasted no more than a few seconds. At 5.52 p.m., however, Eugene appeared to make contact with Edwardson (routed through the Kapunda tower) and to speak to him for over four and a half minutes.
·At 6.03 p.m. Edwardson’s phone connected with Eugene’s and the call appeared to last one and a half minutes.
·At 6.04 p.m. Eugene’s phone connected with his mother’s and the call lasted 62 seconds, again routeing through the Kapunda tower.
·At 6.08 p.m. Eugene’s phone connected with Edwardson’s and the call lasted 251 seconds.
·At 6.40 p.m. Edwardson’s phone connected with Eugene’s for three minutes.
·At 6.45 p.m. Eugene’s phone connected with his wife’s for 64 seconds.
·At 6.51 p.m. Edwardson’s phone connected with Eugene’s for three minutes.
·At 7.23 p.m. Sergeant Brian Mills, a police collision reconstruction expert, attempted to call Eugene’s mobile but the call was not answered.
The inescapable inference from the telephone tower evidence I received and accept is that Eugene was in the general areas of the Warpoo and Kapunda towers at the times when most of his calls were made, albeit that the area covered by those towers is very wide indeed and as much as 35 kilometres distant from either of them.
(10)At 7.40 that evening the Pajero was found parked in the premises at Rowett Street but neither Craig nor Eugene was there.
I infer from the telephone evidence, including that relating to telephone towers, the fact that Eugene’s mobile phone made a connection through the Evanston Gardens tower at 7.44 p.m. and the North Adelaide East tower at 8.28 that evening, and that he and Craig were at Edwardson’s house at 11.30 p.m., that Craig drove Eugene from Kapunda to Adelaide that evening, leaving Kapunda at some time between 7.06 and 7.40 p.m. I further find it is likely that in the course of that trip, they passed through a police roadblock on Thiele Highway and neither alerted police to the presence of Eugene in the vehicle.
(11)From a further series of telephone call records I infer the following:
·At 7.40 p.m. Eugene’s phone connected with Edwardson’s for 56 seconds.
·At 7.44 p.m. Eugene’s phone connected with his wife’s for 100 seconds. That call was routed through a tower in the Evanston Gardens area.
·At 8 p.m. Eugene’s phone connected with Edwardson’s for 135 seconds.
·At 8.09 p.m. Craig’s phone connected with Mr Andrew’s for one minute.
·At 8.28 p.m. Eugene’s phone attempted to connect with Edwardson’s for 12 seconds, routed through the North Adelaide East tower.
·At 9 p.m. Eugene’s phone connected with his wife’s for 46 seconds.
·At 9.10 p.m. Edwardson connected with Sergeant Mills’ personal mobile phone number for 218 seconds.
·At 9.15 p.m. Craig connected with his mother’s home phone number.
·At 9.15 p.m. Mills connected with Eugene’s solicitors, Iles Selley, for 187 seconds.
·At 9.22 p.m. the mobile phone of the Major Crash sergeant connected with Iles Selley for 92 seconds.
·At 9.54 p.m. Iles Selley connected with the Major Crash sergeant’s mobile phone for 149 seconds.
·At 10.19 p.m. Edwardson connected with Mills’ mobile phone for 380 seconds.
·At 11.07 p.m. police officer Bell’s personal mobile phone connected with Iles Selley for 77 seconds.
The evidence of Mr Kerr of Optus as to the routeing of mobile telephone calls through transmitting towers was of some, but limited, assistance. He explained how towers in the inner city or settled areas tended to be adjusted so that they were responsive only to calls within a limited radius, whereas in the country that radius might extend as far as 35 kilometres, albeit depending upon the ‘view’ of the particular tower or, more accurately, the sector or sectors which its transmitter would likely access. Having said that, he freely acknowledged that a mobile call generated from a particular area might, depending on call volume and other factors, be accessed by a number of accessible towers and could, indeed, be diverted to a further tower. He produced a map (Exhibit P17) showing the location of the particular towers and their projected reach but was careful to say that those reaches were approximate only and were liable to be affected by interrupting terrain or infrastructure.
The problem of locating the whereabouts of a caller using tower information was exemplified by his evidence that a person travelling along the Sturt Highway from Gawler to Greenock and making a telephone call might potentially be routed through four different towers.
In the end, I felt unable to draw any firm conclusions from the evidence as to towers other than that routeing through the Evanston Gardens and North Adelaide East towers likely meant that the caller was within a relatively short distance of each of them and otherwise that routeing through the Kapunda tower meant that the caller was likely within 35 kilometres of the town.
(12)Separately from that, police evidence disclosed that between 9.15 and 9.22 p.m. they had contact with Matthew Selley, Eugene’s solicitor, in the course of which it was agreed that police would visit Selley’s professional offices in Adelaide as soon as they could return there and that Eugene would be available for interview there.
(13)No doubt in consequence of that contact, Sergeant Hassell had at about 9.30 p.m. been charged with the task of arresting Eugene. He and Sergeant Bell were not able to return to the city immediately, however, as they felt obliged to remain at Rowett Street and guard the Pajero. Hassell agreed that Selley had been anxious that they attend for the proposed interview as soon as possible but he said he had been unable to secure assistance and get to the changed meeting place of Edwardson’s house until 11.30 that evening. His explanation of why the arrest was not made earlier by himself or another officer was not very persuasive.
At all events, when they arrived at Edwardson’s, Eugene read out a statement saying that he was the registered owner of the Pajero and had been driving it on the Kapunda to Gawler road that afternoon when the collision occurred. He expressed his regret for it and the loss of life but otherwise exercised his right of silence. Hassell then arrested him and conveyed him to the city watch-house. Neither he nor Bell observed any signs of insobriety in him but each noted a smell of alcohol in the car when they were taking him to the watch-house. Hassell said it was not a very strong smell. Bell said it was strong enough to be noticed by him sitting half a metre away from Eugene.

I turn then to a discussion of the events that occurred at Edwardson’s house at about 11.30 p.m. that evening. Sergeant Hassell described arriving there, meeting Edwardson and entering a back room where he saw a long kitchen bench to his left and Eugene and Matthew Selley sitting at a table at the far right-hand corner of the room. Craig was in another part of the room. He believed there was an open bottle of wine on the bench and thought there was another bottle somewhere in the room. He also thought there were wine glasses. He did not know whether there was any wine in the opened bottle and it was distant from the position where Eugene was sitting.
He agreed he had never previously spoken of a second bottle, but was then taken to his declaration where he had referred to a number of opened bottles on the bench top. He agreed that that was the more likely account of things and, on the basis of it, his best recollection was that there were probably two opened bottles on the bench top.
There was no discussion at any time with either accused about those bottles or any glasses in the room, nor did he attempt to photograph them.
Sergeant Bell was with Sergeant Hassell and on his account there was a red wine bottle on the table where Eugene was sitting when they entered the Norwood premises. He thought it was half-full and that there was one wine glass on the table near it, although he did not notice whether anything was in the glass. He saw no other bottles in the room.
In cross-examination he agreed he had previously told the Royal Commission in 2004 that he thought there might have been ‘glasses’ there. He could not remember why he said that but his present recollection was that there was only one glass on the table. He was challenged as to his Royal Commission evidence, it being suggested that his recollection was fresher at that time than at the time of this trial, when he said ‘Probably, possibly’ (T/S 383). He had made no notes about wine glasses being present, nor had he mentioned it in his statement of 5 September 2005.
On the basis of that evidence, said the prosecutor, I might infer that the presence of the wine glasses at the Norwood premises was part of some elaborate scheme on the part of Eugene to effectively mask the value of any forensic testing that might be carried out after his arrest.
I am not disposed to draw that inference. There was no good evidence to support it. It was plainly not considered to be a matter of particular relevance by the investigating police officers, there was no evidence of how long the bottle or bottles had remained there or as to whether any persons in the room had consumed anything from them, and I am not prepared to infer that the smell of alcohol on Eugene’s person in the car was likely linked to any such consumption.
Further to that, having regard to Eugene’s own knowledge of matters touching upon alcohol consumption and absorption, the likelihood he had some appreciation of his likely level of sobriety at 5.08 p.m. and the evidence of the prosecution expert Mr Lokan, I am unable to envisage a circumstance in which he might have thought such a stratagem to be useful.
I regard all of that evidence as intractably neutral.
Finally, I turn to the evidence of Mr Lokan, a recently retired forensic scientist who at relevant times had held such a position at the State Forensic Science Centre in Adelaide. His qualifications were not in doubt and, in his particular capacity, he had previously been called upon to provide an estimate of the likely blood alcohol readings in Eugene’s system at the time of the accident, based upon several scenarios and assumptions.
His calculations were based on assumptions as to the possible amounts consumed by Eugene between 12.45 and 3.48 p.m., the alcohol percentage of wine, an uncontested volume distribution figure involving estimates of height and weight, and a range of alcohol elimination rates proceeding from an average of 0.016% to a reasonable maximum rate of 0.030%. He produced a chart (Exhibit P18) which set out his findings.
Assuming Eugene had drunk one bottle in that period and an average elimination rate of 0.016% per hour, his blood alcohol reading as at the time of the accident would likely have been about 0.01%, and it would have reduced to zero at 6.15 p.m.
Applying one bottle and a reasonable maximum elimination rate of 0.030%, there would have been a zero percentage of alcohol in Eugene’s blood by the time of the accident. Were that elimination rate the lesser figure of 0.020%, the result would be the same.
Assuming Eugene had consumed one and a half bottles, his reading at the elimination rate of 0.016% would at the time of the collision have been 0.06% and that would have abated to zero at 9 p.m.
Assuming that consumption and an elimination rate of 0.030%, the reading would have been nil at the time of the collision.
Had consumption of one bottle taken place between 1.15 and 4.18 p.m. and an elimination rate of 0.016% applied, the level at the time of the accident would have been 0.02%. Had that consumption been of one and a half bottles, the level at the time of the accident would have been 0.07%.
He said that a particular individual might have the capacity to eliminate alcohol at a faster rate than average and he regarded the reasonable maximum rate of elimination as 0.030%. A variation in rate would be noticeable, for example, with very heavy drinkers, who might even have a greater elimination rate than 0.030%, but he nonetheless thought 0.030% was a reasonable maximum figure.
- The Evidence of Craig McGee
- As to Events at the Wheatsheaf Hotel
Craig recalled that when they arrived at the hotel, they ordered a bottle of wine for themselves and a glass of port and lemonade for their mother. That was all she drank. Between him and Eugene, they consumed two bottles of wine and some of the third bottle. He variously described the latter proportion as a ‘glass or so’ and as pouring a wine for himself and ‘put(ting) something in (Eugene’s) glass as well’.
He believed that they first ordered the wine and he then made a call on Eugene’s phone.
As to the respective quantities they consumed, he believed he consumed more than Eugene. Eugene would not allow his glass to be topped up until he had finished it. He had not then made up his mind about returning to the Riverland that evening (as the evidence of Mrs Andrew tended to corroborate) and was therefore less concerned about the amount he was drinking. He then went on to say how they later returned to their mother’s house, had a cup of coffee and he set off to drive to Winkie. He did not feel affected by alcohol then, nor did his brother appear to be so affected.
- As to his Telephone Contact with Eugene
He said that he had initiated that contact by attempting to call Eugene to thank him for lunch (which Eugene had paid for) but the call was unsuccessful. That would appear to have been the call shown at 5.33 p.m. Soon afterwards, Eugene rang him and told him that he had just killed somebody, that he had not stopped and that he was keen to get legal advice. Eugene was:
… very distressed. His voice was breaking up, or emotionally disturbed voice. It was clear that he was very upset … He told me that he wanted to seek legal advice, also that he wanted to see mum and explain to her what had happened. So I said to him that I would turn around and meet him back at mum’s place.
(Exhibit P7, T/S 474)
He said that after that call he had many conversations with Eugene:
I kept ringing him to reassure him and I just wanted to let him know that he wasn’t alone; just for reassurance, really … I just told him to make his way to mum’s: I’d meet him there and I would then drive him to Adelaide. He wanted legal counsel and I said that I would do that; I would accommodate him.
He said in cross-examination that there was no time fixed for their meeting at their mother’s house. He recalled Eugene making mention of being at a quarry, but he did not know where that was.
- As to his Meeting with Sergeant Talbot
He was asked why he had not provided police with Eugene’s number when requested by the police officer and he said (P7, T/S 475):
I didn’t provide it to the officer because my brother wanted to talk to my mother and wanted legal advice and I presumed that, had he seen the police, the police would have prevented both of those things.
He could not recall whether Eugene had then told him that he had already spoken to a friend or a lawyer.
He was not then challenged on the falsity of his denial of knowledge of Eugene’s number, but was challenged as to why he did not disclose to the police that Eugene was on his way back to the house. He agreed that in not disclosing that, he was trying to help Eugene, ‘to comply with his wishes’, because he thought that was ‘in his interests’ (P7, T/S 483). He agreed that he then rang Eugene as soon as the police had left Rowett Street and told him that the police had been there looking for him and knew his car was involved. He had no recollection of ringing Eugene more than once at that time but did not dispute it.
- As to Later Events
He described how Eugene arrived at Rowett Street in the Pajero after the police had left (P7, T/S 475-76):
He was distressed. His eyes were puffed and his voice showed emotion. He was clearly upset … He kept mentioning it. He was obsessed by it, or he was very upset about what he’d done. He was obviously very upset by it.
He described how Eugene spoke to his mother, although he did not hear what was said, and how after that he drove Eugene to Adelaide and to a lawyer’s house at Norwood, stopping at Eugene’s house at Collinswood, where Eugene spoke to his wife and daughter. A long time afterwards the police came to that address at Norwood.
He was not asked about passing through the police roadblock.
- The Evidence of Eugene McGee
- As to Events at the Wheatsheaf Hotel
He described how he went to his mother’s house at Rowett Street and then drove with Craig to the Wheatsheaf Hotel. When they arrived there, they sat down whilst Craig made a phone call. He put in the order for his mother’s drink and a bottle of white wine for Craig and himself. He believed a second bottle was ordered after the food came and that might have been between 1.30 and 1.35 p.m. None of them ordered a beer and he and Craig drank the white wine between themselves. The third bottle was then ordered towards the end of the meal, at a time closer to 3 p.m., and he recalled that each of them had had a glass out of it and no more, as they had each decided to drive home to their respective destinations.
On his estimate, he consumed less than one bottle of wine over that time because he was being careful to ensure that his glass was never topped up by Craig. He only refilled it when it was empty.
He was cross-examined about those events and did not challenge that his brother had used his telephone to make a call at 1.07 p.m. Further, he agreed they left the hotel after the account was paid at 3.48 p.m. He estimated that he had consumed four or five standard glasses of white wine and he believed that Craig had drunk more than him. He had not consumed any other alcohol that day.
He said that after leaving the hotel, they took their mother back to Kapunda and had a cup of coffee. He did not then feel affected by alcohol. He thought Craig left to go home at about 4.30 and he himself left before 5 p.m.
- As to the Accident
He described the accident and its aftermath in the following terms (P7, T/S 426):
A.   As I was just sitting, moving, in fact, moving back into the left behind him, still looking for the oncoming car, there was just a sudden flash to my left and I looked to my left and there was a. The front of the car was colliding with a person and that person then came thundering into the cabin of the car.
Q.   What did you do.
A.   I just instinctively put my arm up like that.
WITNESS INDICATES RAISING HIS LEFT ARM UP TO ABOUT HEAD HEIGHT WITH HIS PALM OPEN
The person actually thundered into the cabin part of the car almost through the windscreen into the car with a tremendous amount of force. The car sort of dipped to the left and down. I got the car straight, I looked ahead, the car that was just in front of me wasn’t there, I don’t know where it was. I got the car straight anyway. I looked at the area of the windscreen that was smashed and pushed into the cabin. Then I just drove, continued to drive.
Q.   Did you see where the Felice’s vehicle was or did you see any lights with respect to the Felice’s vehicle at that point or after this collision.
A.   I did not. I can’t remember seeing Mr Felice’s vehicle. It certainly wasn’t in front of me where it had been. I do remember some brake lights somewhere up ahead but I can’t tell you where.
Q.   The vehicle that you had earlier seen travelling north and preventing you from passing, do you know where that went or did you see that.
A.   I didn’t see it pass. I think I saw, I think I saw some brake lights in my right-hand mirror but I don’t remember it passing.
Q.   How did you feel immediately after this collision. Can you describe in any way.
A.   It was just terrible shock.
Q.   What did you do.
A.   I just continued to drive. I couldn’t stop. I just continued to drive.
Q.   Can you explain why you couldn’t stop.
A.   No, I just could not stop. I just could not stop. I just continued driving down the road.
Q.   Now, you have heard some evidence that you drove probably a distance of about 3 kilometres down the road and then turned left on to a dirt road. Did you do that.
A.   Apparently.
Q.   Do you have any recollection of doing that.
A.   Not of turning off. I remember, I remember just continuing to drive down the road. I don’t remember turning off on to what has been said was the Roseworthy Road, but I obviously did.
Q.   What happened next as best you can recall. Can you take the members of the jury through your recollection of what happened next.
A.   Somewhere – and I can’t tell you which road it was on – I started – just a rush of thoughts came into my head about the fact that there has been an accident, that someone had obviously been killed, that I hadn’t stopped, that I was in serious trouble for not stopping. Obviously I was going to be arrested, charged by the police. I started thinking about the consequences in terms of my profession, my obligations in that regard. I knew I was in really serious trouble. I could feel that I was going into shock or something; I wasn’t handling it at all obviously, and I rang David Edwardson.
Q.Do you know where you were when you did that?
A.   No.
Q.   You mentioned you were feeling as if you were in shock. Can you tell the members of the jury what sensations you were experiencing if you can.
A.   Just shaky, not coping, things closing in on you. I knew I wasn’t coping.
Q.   What else did you do. What else can you recall doing I am sorry.
A.   I knew I wasn’t coping, and I rang David Edwardson for help and for him to try and get somebody, because I knew I had to deal with the police, and there was no way I could cope with anything. I spoke to him and was going to try and get some help.
Q.   Did you ring any other people or do you recall ringing any other people.
A.   I know now from the telephone records I did, but I don’t recall.
Q.   You don’t recall ringing your brother.
A.   No.
Q.   Your wife.
A.   No.
Q.   What is the next recollection that you have.
A.   Turning off into Greenock and seeing an ambulance going the other way with its roof lights on.
Q.   Are you able to say how long after the accident that observation was made.
A.   No.
Q.   Your car was ultimately found back at your mother’s house.
A.   Yes.
Q.   Do you recall driving there.
A.   No, I don’t.
Q.   Do you recall speaking to your mother.
A.   No, I don’t.
Q.   What is the next recollection you can help us with.
A.   After seeing that ambulance I remember being on the roadside somewhere shaking; the car was stationary, I was shaking. My next recollection after that was again seeing lights on top of, obviously, a police car, and realising that I was in the car with my brother Craig, and we were actually on the road where the accident happened, the policeman was diverting us off the road.
Q.   Where did you go with your brother, Craig.
A.   To Mr Edwardson’s house at Norwood.
Q.   There was a lawyer there called Mat Selley.
A.   That’s correct.
Q.   Do you know what time you got there.
A.   Only from telephone records and what I have been told.
Q.   Are you aware that apparently the phone calls were made to the police once you arrived or shortly after you arrived at Mr Edwardson’s house.
A.   Yes; I know that from what I have been told, and I have some recollection of what was occurring.
In cross-examination he repeated that following the collision, he ‘couldn’t stop … (and) just kept driving’. His next recollection was ringing Edwardson. He could not remember turning off the Thiele Highway, nor why it was that he drove back to his mother’s place. At T/S 458.17:
A.   I don’t recall most of it. There are just snippets that I recall.
Q.   You say that you felt like you had gone into shock, that you were shaking.
A.   Yes.
Q.   What other symptoms do you recall having.
A.   I am not certain. It felt like things were closing in on me. I just knew that I wasn’t coping.
Q.   Do you recall anyone offering you any assistance in relation to your apparent shock.
A.   No.
Then at 458.34:
Q.   However, you did recall, about the time you made your first phone call to Mr Edwardson, that you were in serious trouble.
A.   Yes.
Q.   And at that point in time your mind was working as to the consequences that would have to you.
A.   Yes.
Q.   Indeed, you referred, in relation to that, in relation to your profession.
A.   Yes.
Q.   If I recall correctly, you told the ladies and gentlemen of the jury that was because you failed to stop.
A.   Because all that I knew, I was in very serious trouble.
Q.   Why were you in very serious trouble.
A.   Because I had been involved in an accident. Someone had been killed. I failed to stop.
At 459.22:
Q.   You were concerned about what this would mean to you, as far as being in trouble with the police.
A.   Yes, I had a jumble of thoughts through my head.
Q.   You were concerned as to how it may impact on your professional life.
A.   Yes.
He went on to say that he had no recollection of further calls to Edwardson, nor of calls to his mother, his brother or his wife, and he had no recollection of what he did during the two hours between the accident and the time he returned to his mother’s house. In fact, he could not recall even being at his mother’s house. He was aware of coming to the roadblock in his brother’s car and that it related to him, but he did not tell his brother to pull over. At 461.23:
Q.   Why didn’t you ask him to stop and get out and speak to the police officer.
A.   I don’t think I was in any rational state at the time. I simply remembered the lights on the vehicles, the sudden shock in realising we were actually on the road the accident happened.
Q.   Tell me when you realised the consequences of this in relation to the police and your profession. Did you realise that before you made the phone call to Mr Edwardson or after or during.
A.   I think probably I remember a rush of thoughts coming to my head about the fact that this was a very serious incident and I was in very serious trouble, and I think I rang him as a result.
He said he was running away from the scene not because of his driving but because he was in ‘terrible shock from what had happened’. Finally, he was asked these questions (at 466.21):
Q.   What I want to suggest to you is that the reason you didn’t stop at the accident or go near the police afterwards was because you didn’t want to be breathalysed.
A.   That is not true.
Q.   Is the reason you ran away because you knew that you were responsible for the accident and that your driving was much more serious than undue care.
A.   No; I don’t believe so.
Q.   What I want to suggest to you is that, at the time, your driving was affected by the intoxicating liquor you had had. What do you say to that.
A.   That is not correct.
Q.   Is your claimed lack of memory as to the events after the accident, an attempt to explain away your conduct.
A.   No.

That, then, is Eugene’s account of the accident and its aftermath.
Evidence Relating to Music Played at the Home of Joanne and Vincent McGee
In discussing this evidence, I keep in mind that it is relevant only in the context of psychiatric evidence and the case against Eugene.
Eugene had been a guest at the house of his brother and sister-in-law approximately one year before the subject accident and was having lunch with them. During lunch there was playing on a CD player a tune by the group Creedence Clearwater Revival. At one point it was noticed that Eugene was not in the room and when Joanne McGee went looking for him, she found him sitting in an armchair in the lounge room. She said ‘Looks like that song brings back memories (Eugene)’ and he said ‘Yes Jo but not good ones’ (T/S 677).
That evidence was not contested. The defence then sought to lead from the witness an account given to her by Eugene as to why he said that. In the course of that account he identified the circumstances of a gruesome task he had had to perform whilst he was a young policeman, that of cleaning up after the shotgun suicide of a young person in the Riverland.
That evidence was objected to by the prosecution, but I resolved to receive it and to consider at a later time the question of its admissibility.
The prosecution position was and remains that evidence could properly be led as to what Eugene said of his state of mind at the time but not of the narrative or events that underlay or explained that state of mind. For its part, the defence argued otherwise and said that the evidence was of importance in connection with Professor McFarlane’s evidence going to the state of mind of Eugene immediately following the accident.
In R v Perry (No 2)[1], Cox J observed:
Mr. Waye's alternative submission was that any evidence as to what Mr. Perry said to anyone about his health or bodily feelings must be confined to a description of his symptoms at the time he referred to them. It may not embrace anything he said about his health in the past. All the statements of the common law rule that I have been able to find make this clear and, as I have said above, there must be nothing added by way of opinion or historical narrative. Obviously there is a matter of degree involved in the requirement of contemporaneity. Judges and writers have put it in various ways. Wills (p. 209), approved in Ramsay v. Watson, begins the relevant passage with the words, "Whenever there is an issue as to some person's state of health at a particular time, the statements of such person at that time or soon afterwards ". Jordan C.J. said that the declarant's statement "is restricted to a description of symptoms which were substantially contemporaneous, together, it is conceived, with any statement of the history of the symptoms which was necessary to explain the nature of the existing symptoms" (Evans v. Hartigan). See also the discussion at Cross, par. 19.28. Obviously no hard and fast rule can be laid down in advance, and I think it better to deal with this aspect of the matter when particular occasions for its application arise in the course of the trial.
(my emphasis)
[1] (1981) 28 SASR 95 at 99
In Evans v Hartigan[2], the court had observed:
It is now well settled that if it is relevant to ascertain the state of a person’s health at a particular time, the fact that he made a statement at the time as to what his state of health then was, i.e., as to his then existing symptoms, is evidence that his health in fact then was as he stated it to be. Only so much of such a statement is admissible as is restricted to a description of symptoms which were substantially contemporaneous, together, it is conceived, with any statement of the history of the symptoms which was necessary to explain the nature of the existing symptoms; and no part of the statement which states or expresses an opinion as to the cause of the symptoms can be received …
(my emphasis)
[2] (1941) 41 SR(NSW) 179 at 183
In R v Hendrie[3] King CJ observed:
It is well established law that a person's state of mind may be proved by contemporaneous statements made by that person. Such statements are not hearsay because they are not adduced for the purpose of proving the truth of the statements. They are original circumstantial evidence tending to establish the state of mind. Their evidentiary value is derived from experience of human behaviour which indicates that people tend to express their intentions or their states of mind. For that reason what a person says is some evidence of what he is thinking. It is circumstantial evidence which may form a basis for an inference as to his intention or other state of mind.
[3] (1985) 37 SASR 581 at 585
I have considered the question in the context of those authorities and find myself satisfied that I should receive the evidence of Joanne McGee to the effect that Eugene said the memory revived by the playing of that music related to the task he had to perform as a policeman in the Riverland in cleaning up after a suicide. It must necessarily be the case that her account of that incident is not evidence that establishes or corroborates that Eugene had in fact been involved in that clean up, but I am satisfied that the evidence of his claimed involvement in it was admissible as explaining the nature of the symptoms of which he complained. Bereft of that explanation, Eugene’s statement that the memories were not good ones would lack any real meaning.
It may be that the full extent of Eugene’s account of what happened was not necessary to explain his feelings and that all that was admissible for that purpose was a reference to cleaning up after a suicide, but the full extent of that history is not contentious, anyway, because it was given by Eugene in his evidence at the first trial and otherwise by the witness Fox in this trial.
I am satisfied that I should receive the evidence that on the occasion in question, Eugene told Joanne McGee that the playing of that music did not bring back good memories because he recalled it being played when he, as a policeman, was cleaning up after the suicide of a young man.
- The Psychiatric Evidence
As a precursor to this discussion, I should record that in addition to the general evidence relating to his conduct in the period immediately following the accident, I am satisfied there was evidence of the following assumptions around which much of the psychiatric commentary revolved. All of them concerned Eugene’s prior experience with trauma:
·that as a policeman he had had to investigate a motor vehicle accident involving the deaths of five young people;
·that as a policeman he had had to undertake the task of cleaning up after the shotgun suicide of a young man in premises in the Riverland;
·that in 1976 his brother Vincent had been involved in a motor vehicle accident which had rendered him a quadriplegic, that Eugene had gone to visit him in hospital in Queensland and fainted or collapsed when he saw his brother’s condition;
·some detailed evidence of his participation in the Snowtown murders trial which it is not necessary to repeat;
·some evidence of his participation in the trial of Liddy which he found particularly stressful;
·his emotive response to hearing music by the group Creedence Clearwater Revival when he was having lunch with Vincent and Joanne McGee and his linking of that response to the suicide mentioned above;
·that Eugene’s memory of the immediate aftermath of the accident was as he described in the evidence he gave in the previous proceedings.
I have separately discussed how I have reached certain of those findings. Otherwise, I have concluded that I will not have any regard, in considering the psychiatric evidence, to recent mention of his involvement in two other accidents involving a bicycle and one involving a motorcycle. Neither was proved by independent evidence.
It is then appropriate to make some general observations about certain aspects of the evidence given by each of the psychiatrists:
(1)There can be no doubt that Professor McFarlane’s special field of expertise is in the field of trauma and post-traumatic stress disorder (‘PTSD’) and that he is a local and international authority on the topic. He participated in the preparation of the accepted reference work for these disorders published in the Statistical Manual of the American Psychiatric Association (DSM-IV) and is currently involved in updating that manual in those areas.
(2)By way of contrast, neither of Professors Tennant or Goldney claimed special expertise in those areas, albeit that they had each practised clinically in them and, by virtue of their qualifications, necessarily had levels of expertise and were qualified to give evidence with respect to them. Neither had published in them, whereas Professor McFarlane had published a great deal of material.
(3)All three experts appear to have been distracted in this hearing by reason of their apparent focus in evidence given by them previously before the Royal Commission. All three had then commented upon the significance of trauma and dissociative symptoms in the context of discussion about automatism. Automatism was not, however, an issue in this hearing, albeit that it was not apparent that Professor Goldney, in particular, readily understood that. Indeed, he had relied upon literature published principally upon the topic of automatism and, even then, by legal academics rather than psychiatrists.
Professor McFarlane was, however, more alert to that change and it had, indeed, caused him to review an opinion he had expressed before the Commission.
(4)There can be no doubt that Professors Tennant and Golding conceded that Professor McFarlane had the advantage of having seen Eugene in a clinical context and on a number of occasions. Neither of Professors Tennant or Goldney had seen him at all.
Even so, Professor McFarlane himself allowed that the fact that he had been consulted primarily for therapeutic purposes and not originally in a forensic context, meant that he had not pursued with his patient particular lines of enquiry that he later realised might have been of assistance.
(5)Some observations are appropriate as to the demeanour and presentation of each of those witnesses. It became plain that there was a history of disagreement between them over this matter and I will touch upon that in a moment.
Professor Goldney was at odds with Professor Tennant over the issue of the existence of PTSD at relevant times and he appeared to lay greater emphasis on the relevance of goal-directed behaviour in his opinion as to the existence of pathological dissociation. On occasions he appeared to me to be less than objective. He was reluctant at times to accept and comment upon a set of assumptions put to him in cross-examination. Rather than simply answering the question put, he sought to question or qualify the assumptions or to add his own material when there was no need for that. The answer to a question is only as valuable as the correctness of the assumptions upon which it is based. On a few occasions he had to be pressed for a direct answer. He also appeared to waver on the topics of amnesia, the absence of corroborative evidence of dissociation and general observations about dissociation.
Professor Tennant, as I have noted, disagreed with Professor Goldney on the question of PTSD and on the question of whether dissociative symptoms existed along a continuum. He was, too, less focussed on the importance of goal‑directed behaviour. He also presented as less than objective and had to be pressed on a number of occasions to answer questions directly, and I am obliged to say that I was unimpressed with his evidence relating to the exchange of emails with Professor Goldney on 21 January 2010. He had received a subpoena to produce documents and had produced none in response. He proffered the partially understandable explanation that he had believed that he need not produce documents which were already in the possession of the prosecution, but he was then asked about communicating with Professor Goldney by email. He denied there had been any such contact. He was then shown a copy of Exhibit D25 and was obliged to accept that he had, indeed, corresponded with Professor Goldney by email and, more significantly, it was some two weeks before giving evidence.
The nature of that communication and his denial of any knowledge of it caused me to have reservations about his evidence and these were magnified when he provided a fatuous explanation for the initials ‘B/S’ that he had employed in that email. Somewhat extraordinarily, when challenged with that answer, he persisted with it. Although that evidence did not go to his expertise in a direct sense, it caused me to have serious reservations about his objectivity.
As to the evidence of Professor McFarlane, it appeared to me that he strove to be objective, although his evidence on the relevance of goal-directed behaviour wavered. He was ready to discount its significance at trial almost totally, but on being confronted with what he had told the Royal Commission about it, sought to explain his previous account by pointing to the then focus on the matter of automatism. Even so, he seemed to allow that some goal‑directed behaviour was relevant in determining any level of cognitive impairment consequent upon pathological dissociation. He had originally failed to take a complete history from Eugene as to all trauma in his life because his initial consultations had been in a therapeutic context, but he then proffered the suggestion that Eugene’s original failure to mention his reaction to his brother’s accident may have been demonstrative of avoidance behaviour. In the context of all that Eugene had disclosed to him, that struck me as an overly sympathetic observation.
Overall, however, I should say that I preferred the evidence of Professor McFarlane because of his particular and high level of expertise and because of the clinical advantages conferred by his early examinations of Eugene. That is not to say that I accepted his evidence at its fullest.
The appropriate starting point is perhaps the issue of vulnerability. All experts appeared to agree that a lengthy past history of trauma did predispose a person or otherwise make them vulnerable in terms of their level of response to subsequent trauma.
In that context, Professors Tennant and McFarlane agreed that Eugene had likely suffered from PTSD prior to the subject accident in consequence of the traumas I have outlined above. Whether it was in remission at the time of the accident, as Professor Tennant suggested, or then remained active, as Professor McFarlane thought, is of limited assistance. The evidence upon which Professor McFarlane relied in making that finding was, as I apprehended it, quite limited and I favoured the opinion of Professor Tennant that it was likely that at that time he was suffering from some, but not all, of the relevant PTSD symptoms. At all events, all three conceded that his history did predispose him to the development of dissociative symptoms and possible future PTSD in the event of later trauma.
Professor McFarlane said that after the first or second time that he saw Eugene, he concluded that he was suffering from PTSD and Professor Tennant supported that conclusion. Professor Goldney did not. The significance of such a diagnosis is, however, limited because it is a prerequisite that symptoms of the condition continue for a period of four weeks after the trauma, anyway. By definition, it could not have been diagnosed immediately after it.
The real question, it seems to me, is what were the immediate consequences of the collision for Eugene, because it is his conduct in its immediate aftermath that the charge and the psychiatric evidence are concerned with. On that topic all experts appeared to agree that, assuming the truth of his claimed symptoms, he likely then suffered from an acute stress disorder and it is common ground that DSM-IV recites the essential features of an acute distress disorder (Exhibit D20): ‘the development of characteristic anxiety, dissociative, and other symptoms that occurs within 1 month after exposure to an extreme traumatic stressor’. That publication goes on to require the presence of ‘at least three of the following dissociative symptoms: a subjective sense of numbing, detachment, or absence of emotional responsiveness; a reduction in awareness of his or her surroundings; derealization; depersonalization; or dissociative amnesia …’
There was, however, a dispute as to the level or seriousness of the dissociative symptoms exhibited by Eugene. It was generally conceded (albeit reluctantly by Goldney) that, assuming the correctness of his claimed recollections, he had suffered anterograde amnesia at a level that was greater than might ordinarily be expected. He had a very limited recall of anything between the time of the accident and his arrest. Further to that was the independent evidence of Mrs Hayman, and to a lesser extent her husband, who described seeing Eugene turn off the Thiele Highway into Roseworthy Road. She had a clear view of his face and described him as appearing to be without emotion and ‘staring blankly straight ahead’ (T/S 76). There was also Eugene’s own recollection of an episode where, having stopped the car and being beside the road, he found himself shaking and felt that ‘things were closing in on’ him.
It was not disputed that dissociative symptoms can arise in the context of other psychiatric conditions but here, given the acceptance of a diagnosis of an acute stress disorder, the conclusion is irresistible that they were a product of it. There was no evidence of any other psychiatric disorder.
There was, however, a lack of consensus as to the significance of the evidence of dissociation. Professors Goldney and McFarlane were both of the view that symptoms of dissociation can be present along a continuum, starting with what might be described as a normal stress reaction and ending with a fugue or automotive state. Professor Tennant disagreed with that characterisation and said that there was a need to isolate what he had described as a normal shock response from a pathological one.
It did not appear to me that there was a significant difference of opinion because the continuum described by the other two experts allowed for a commencement point that was non‑pathological and the development somewhere along that line of a pathological state.
There was no dispute that dissociative symptoms have the capacity at particular levels to impact upon a person’s cognition. Cognition was identified as ‘the process of thinking and problem solving that is part of conscious awareness’ (T/S 765).
The real issue was whether, assuming the presence of the dissociative symptoms, they were of sufficient severity to have impacted upon Eugene’s cognition – that is to say, his ability to ‘optimally scan (his) environment for relevant information, to utilise (his) memory, to contain (his) emotional responses to the circumstances’ (T/S 765).
On that matter, Professor Tennant was of the view that the dissociative symptoms which he was prepared to accept were present were indicative of no more than a normal stress or shock-horror response and were not pathological. In his opinion, Eugene had retained an awareness of his situation and had made perceptive decisions based upon it. His decision or judgment about not stopping his vehicle was, in essence, a ‘moral’ one.
For his part, Professor Goldney placed much emphasis on examples of goal-directed behaviour displayed by Eugene. He suggested that the more evidence there was of such behaviour, the lesser the likely level of any dissociation. He allowed that it was possible for a person in a dissociated state to exhibit some goal-directed behaviour but generally it was a counter-indicator and so it was, he thought, here.

Professor McFarlane joined issue on that topic, contending that goal-directed behaviour was not a reliable indicator of the presence of dissociation, that all that it tended to show was that a person’s procedural (as opposed to declarative) memory was intact. He went on to enlarge upon that distinction. He explained procedural memory as ‘systems in our brain that deal with actions and behaviours and they depend on different memory networks than are involved in language and commentary about actions’ (T/S 750). He distinguished declarative memory, somewhat less helpfully, as not being the autobiographical memory of when one would recall events, times and places where they occurred, but rather the memory that is related to the hippocampus, prefrontal cortex and amygdala sections of the brain (T/S 755), and went on to suggest that a person could be significantly dissociated but still be able to carry out a range of tasks associated with procedural memory.
On that particular topic, neither Professor Goldney nor Professor Tennant proffered a view as neither was fully alert to what they regarded as merely scientific/medical theory as to memory. I preferred the evidence of Professor McFarlane on this matter, however, as its scientific credibility was supported by the unchallenged evidence of Professor Clark, Professor of Psychiatry at Flinders University and a recognised expert in the field. In any event, it appeared to me to accord with common sense that a person in a dissociative state may well be able to perform familiar or routine tasks.
Even so, as I have mentioned, Professor McFarlane had previously given evidence before the Royal Commission and laid some emphasis on the significance of goal‑directed behaviour at that time. When challenged over that, he was obliged to concede that that had been his view but that it had been one expressed in the context of an enquiry into automatism and that, in any event, he had changed his position in the light of more recent research into the area. There was some merit in that first reservation because both Professors Goldney and Tennant conceded that the evidence before the Commission had focussed on automatism and it can be more readily understood that goal-directed behaviour would not sit easily with the notion of automatism.
Professor McFarlane said that his view on the matter was supported by the results of Cognitive and Psycho‑physiological testing and Electrical Brain Function testing which had been carried out at his behest in March 2004 by Professor Clark.
Both Professors Goldney and Tennant were disposed to regard that testing as experimental, but Professors McFarlane and Clark asserted that there is now a recognised value, at least in Cognitive and Psycho-physiological testing, not so much as a diagnostic tool but as a confirmatory procedure. As the value of this testing was squarely within the special field of expertise of Professor McFarlane, as opposed to those of Professors Tennant and Goldney, I was disposed to give it more credence.
Even so, I did not feel that it assisted me significantly in making formal findings as to any level of cognitive dysfunction present in Eugene at the time of the accident. In the first place, the testing was done several weeks afterwards. Secondly, Professor McFarlane readily conceded he was unable to squarely relate a particular level of dissociation to a particular level of cognitive impairment and vice versa. Thus, whilst it became more or less common ground that a level of gaol-directed behaviour can co-exist with a level of dissociation, it emerged that there was limited value in making any finding as to the likely level of dissociation suffered by Eugene when its resultant impact upon cognition could not be gauged.
The most I am prepared to say is that I preferred the evidence of Professor McFarlane to the effect that, assuming the validity of Eugene’s claimed symptoms, the level of dissociation demonstrated by him likely led to some impairment in his cognition, but I cannot make any finding as to the extent of that.
Even so, Professor McFarlane conceded that Eugene was not so dissociated at any relevant time as to be ‘incapable of forming an agreement with someone’, as to ‘not understand the legal predicament that he found himself in’ or ‘as to be incapable of behaving in a way which was logical to deal with those legal consequences’. His condition was such that it may have caused him to act in a ‘socially unacceptable way’ and in a way that might not be expected (T/S 853).
In summary, I am satisfied on Professor McFarlane’s evidence and having regard to the definitions of these symptoms elsewhere in the evidence, that there is a reasonable possibility that in the time immediately following the accident, Eugene was suffering dissociative symptoms of anterograde amnesia, numbing or detachment and derealisation, and that it is likely that they combined to affect his cognition to some degree, but to what degree cannot be said.
In his final submissions, counsel for Eugene put that the psychiatric evidence led on his client’s behalf had been led for a number of reasons:
(1)in effect, to support his client’s credit in claiming, as he did, that he had a limited memory of events following the accident. On that topic, I am satisfied that it is, indeed, a reasonable possibility that his memory was so affected and that he was being truthful in giving that account, albeit that I recognise that, in part, the diagnosis itself relies upon the truthfulness of that very claim;
(2)secondly, that it was led to explain what might otherwise appear to have been an illogical plan of action whereby his client first returned to his mother’s house before going to see his solicitor and surrendering to the police. On that matter, too, I am satisfied that that behaviour was, at the least, unusual and that his suggested explanation for it is plausible and a reasonable possibility;
(3)thirdly, it was said to be advanced to support his client’s claim that he was not then operating in a way that showed a full awareness of his situation and an appropriate response to it, and to otherwise provide a framework for understanding what then occurred.
As to that matter, I will take some account of that evidence as demonstrating a reasonable possibility that Eugene was not responding in a normal or appropriate way, but I am not satisfied on the evidence at its highest that it can go to the question of intention. If, however, it points to a possible finding of recklessness as opposed to intention, then it is significant;
(4)fourthly, it was suggested it provided a framework within which Eugene’s behaviour might be explicable. I have considered that.
In summary then, I found the psychiatric evidence to be of limited assistance. It did proffer, on what I have found, a potential explanation for some of Eugene’s conduct, it possibly explained the unusual nature of the arrangement to first meet Craig at Rowett Street and it touched upon the question of intention but, ultimately, in the lack of any assistance as to the level to which his cognition was impaired, it was of limited evidentiary worth.
Legal Issues
- Presumption of Innocence and Burden of Proof
I remind myself that an accused person is presumed to be innocent unless and until the court finds the charge against that person to be proved. The onus of proving it rests with the prosecution and it must prove the charge, and each element of it, beyond reasonable doubt. The accused carries no onus whatsoever.
- Evaluating the Witness Evidence
I have considered how much weight I can place on the evidence of various witnesses who have been called. In assessing the reliability or truthfulness of each, I have had regard to demeanour and, in particular, to my impressions of each witness gathered by watching and listening to that person in the witness box, the likelihood or unlikelihood of what that person has said, any bias or motive for lying that person may have, how the evidence was given, how it stood up to cross-examination and how it fitted with other evidence that I find I accept.
I have taken account of the ordinary differences and the capacities of each of the witnesses to remember or give a faithful account of observations. I have been guided by those factors and have kept in mind that witnesses may be truthful and reliable about some matters and not about others, that a witness may be attempting to tell the truth but may be mistaken. I may accept some parts of what a witness says and not others.
In this case, evidence was received from persons who, I accept, were experts in the fields of forensic science, psychiatry and psychology and they proffered opinions on matters within their respective fields of expertise.
In considering that evidence, I have assessed it in the same manner as I would assess the evidence of any other witness, but in doing so have had regard to their respective qualifications and experience in their fields and, as well, the extent to which I accept the various factual matters relied upon by each of them in reaching his opinion.
Finally, I note that neither of the accused has given evidence in this matter. That is the right and entitlement of each of them and I have not drawn any inference adverse to either from the fact that each has made that particular decision, as neither of them carries any onus of proving anything.
- Circumstantial Evidence
Save as to those areas which I will discuss and where the individual evidence of each accused is admissible against him, the prosecution case against each accused is circumstantial. Circumstantial evidence is to be distinguished from direct evidence, which is the evidence of a person who witnessed the actual event. Circumstantial evidence is evidence of the circumstances surrounding the alleged offence, from which the prosecution invites the court to infer beyond reasonable doubt that the accused committed the offence.
Circumstantial evidence is not, by virtue of its description, necessarily weak or unsatisfactory. It can afford very secure grounds for a conclusion of guilt. The amount of circumstantial evidence that will suffice to prove a charge beyond reasonable doubt will, however, vary from case to case. The number of circumstances proved can vary considerably, as can the weight of each circumstance.
The weight of a prosecution case which depends upon circumstantial evidence ultimately depends on the combined strength of all the facts that are proved. In that respect, not every item of circumstantial evidence need be proved beyond reasonable doubt but any fact which is an indispensable step upon the way to an inference of guilt, ‘whether it be a fact derived from a single piece of evidence or a conclusion of fact drawn from a body of evidence, must be proved beyond reasonable doubt if the ultimate inference is to be the only reasonable hypothesis’ (Shepherd v The Queen[4]).
[4] (1990) 170 CLR 573 at 581
The process of reasoning which must be adopted in considering circumstantial evidence is always the same. First, I must decide what facts I accept as established by the evidence. Here, I am satisfied that the prosecution has proved to the requisite degree each and every of the facts it relies upon in the circumstantial evidence; indeed, none of them were in serious contest at the trial. I will discuss them in a moment.
The next step in the process is to consider what inference or inferences I am prepared to draw from the facts which I have found proved.
In considering that second question, I do not reject an individual circumstance simply because no inference can be drawn from that circumstance alone. Instead, I keep that fact in mind and consider it in conjunction with the other facts which I find are established so that I will then have had regard to the totality of the circumstances and their united force in considering whether they prove beyond reasonable doubt that the accused committed the offence charged.
I may not return a verdict of guilty unless the facts exclude any reasonable explanation consistent with innocence. I must therefore be satisfied that not only is guilt a rational inference, but that it is the only rational inference that the circumstances I have found to be proved allow me to draw.
I will at a later point in these reasons refer to the circumstantial evidence upon which the prosecution relies.
- Character Evidence
In this matter I have heard evidence from Mr and Mrs Andrew attesting to the previous good character of Craig and evidence from Mr Andrew and Mr Zollo relating to Eugene’s previous good character.
I will keep in mind the previous good character of each when considering whether I am prepared to draw from the evidence the conclusion of that accused’s guilt. I will keep it in mind as a factor affecting the likelihood of the accused having committed the offence charged and, as well, in assessing the credibility of any explanations given by that particular accused when that person gave evidence in the previous hearing. In considering that evidence, I must also keep in mind that people do commit crimes for the first time and that evidence of previous good character cannot prevail against evidence of guilt which I find to be convincing (R v Trimboli[5]).
[5] (1979) 21 SASR 577 at 578
- Lies
It was common ground that Craig lied to the police in denying knowledge of Eugene’s telephone number. Further, whilst he may not have lied about Eugene’s whereabouts, he misled them by answering their questions in a manner such as to convey that he knew nothing of the accident or Eugene’s whereabouts, when, as I infer, he had some knowledge of both.
I remind myself that there may be many reasons for a person to lie, including that he fears the truth or that he may be falsely implicated or that the truth may affect the welfare of another person. A person may lie through panic. A demonstrated lie will most often reflect on the credibility of the person who tells it and, here, I have had some regard to that.
There are some lies, however, which have a tendency, because of the circumstances, to not just reflect on the credit of the person relating them but to indicate a consciousness of guilt. If they have such a tendency, they can be used as evidence in considering proof of guilt.
Before they can be so used, however, considerable caution must be exercised and they cannot be used unless they are found to be deliberate, relating to an important issue and, importantly, were motivated by a realisation that if the truth were told, it would implicate the person telling the lie in the offence charged.
In this case, it is apparent from Craig’s own evidence that he did lie but, for reasons expressed elsewhere, I have reservations about the importance of his lying in the context of all that occurred. More significantly, I am not disposed to find that the lie was told because Craig realised that the truth would implicate him in the commission of the offence that has now been charged.
The prosecution has sought to characterise it as a lie uttered in the context of what must be presumed to have been an awareness by him of the impending expiration of the two-hour period. That is, of course, a possible inference but not, as I find it, a necessary one because the simple reality is that the timing of Craig’s return to Rowett Street and the police visit there happened to coincide with the near completion of the two hours since the accident. The same conversation might well have occurred had the police visited there at, say, 7.10 p.m.
In making those findings, I am mindful of his given explanation for lying, namely, that he believed his brother wanted to talk to their mother and to access legal advice before seeing police and he believed that if he gave police the telephone number, they might prevent that happening. He was, he in effect said, lying out of concern for his brother’s welfare and I must say I find that a plausible explanation.
Otherwise, I am not persuaded he can then have had any awareness of the possible preference against him of the charge he now faces, so as to have lied from a consciousness of guilt.
The same observation can be made about his responses which conveyed to the police that he had no knowledge of the accident. I am not persuaded that his conduct in either event indicates any consciousness of guilt of the offence charged and, along with the lie, its only relevance is in a consideration of credibility in the case against him.
- Obligation to Surrender or Assist
There can be no doubt that following the accident Eugene was obliged to stop and render assistance, and he failed to do either. He has pleaded guilty to charges arising from that.
Having committed those offences, however, and having left the scene, he fell under no continuing obligation to surrender to police (see R v Taufahema[6]) nor to submit to a breath analysis. So much is not in contest, albeit that the RTA has, since that time, been amended so that s 43(1)(b) now positively obliges a motorist to present to a police station within 90 minutes of a motor vehicle accident.
[6] (2007) 228 CLR 232 at 243
Likewise, Craig fell under no legal obligation to disclose Eugene’s telephone number to police when they visited him at Rowett Street or, indeed, to say where he was.
As to the telephone number, as I have said, he misled police by denying that he knew it, but I am not persuaded that that fact, standing alone, had any manifest tendency to pervert the course of justice. He might just as readily have refused to give it and the effect would have been the same. Further to that, the evidence discloses that at 7.23 p.m. when Sergeant Mills, who in fact had Eugene’s telephone number all the time, attempted to call him, the call was not answered. A call from Sergeant Talbot at 6.50 p.m. would likely have produced the same result. Even had the number been provided by Craig and Eugene answered Talbot’s call, police still lacked any power to compel him over the phone to do anything.
Generally as to the manner in which Craig dealt with police enquiries as to Eugene’s whereabouts, these comments are apposite:
(1)He conveyed the impression that he was not aware of the accident or intervening events when, plainly, he had some knowledge of it and them.
(2)Even so, there is no evidence that he knew of the actual whereabouts of Eugene at the time, albeit that he expected him to return to Rowett Street at some time so they could meet and drive to Adelaide.
(3)Whilst it is plain that Craig did not tell the police all he knew, I am not satisfied that by responding in the way he did, he frustrated, deflected or prevented them from pursuing their enquiries into Eugene’s whereabouts. It is, of course, conceivable that had he answered their enquiries in certain ways, they might have remained at Rowett Street, but I am not disposed to infer that Eugene would then have returned there.
(4)There is no ready inference that his meeting with the police was anticipated or expected and I am not disposed to conclude that what he did was carried out pursuant to any specifically agreed plan. Even so, what he did was consistent with a prior agreement with Eugene to ensure police did not make contact with Eugene. But it is also consistent with the facts and a reasonable possibility that their only agreement was to meet there so Craig could drive Eugene to his solicitor, that he knew Eugene did not want to see police before that time and that he acted solely on his own initiative in behaving as he did.
Overall then, I am not satisfied that any of that conduct on the part of Eugene or Craig was unlawful in the sense that either of them was obliged at law to act other than in the manner he did.
- The Evidence of Mr Surman
The prosecution led, subject to objection, evidence from a Mr Surman, a court officer, who produced a record of a particular Magistrates Court appeal in 1997 in which Eugene had been involved as counsel and which revolved around the necessity for the prosecution to prove, in a charge under s 47B of the RTA, that a breath analysis relied upon had been conducted within two hours of a particular vehicular incident so as to enliven the then s 47G presumption.

On the way to that conclusion, Gray J noted that the allegations relied upon by the prosecution appeared at least partly to fall within s 241 and as well within s 243, observing that the ‘transient state’ of Eugene’s blood or sobriety was potentially evidence which, on the prosecution case, was being concealed from the police.
White J, in discussing that issue, agreed with the Chief Justice but separately concluded, at [296], that the prosecution still faced an onus of proving:
that the “manner” of the perverting of the course of justice alleged is “not otherwise dealt with in the preceding provisions” of Part 7 of the CLCA.
I have been unable to fully reconcile those views, but, as obiter dicta, nor are they binding upon me. In the end, I find myself satisfied that the prosecution must, as an element of its case, satisfy me beyond reasonable doubt that the conduct relied upon by it as constituting a breach of s 256(1) is conduct that is ‘not otherwise dealt with’ in Part 7 of the Act. I have reached that conclusion for these reasons:
(1)There is some consensus between Gray and White JJ on that matter.
(2)In circumstances whereby s 256 contains such an explicit proviso, it appears to me that the breadth of the common law meaning of the expression ‘to attempt to pervert the course of justice’ must be read down, so as to exclude from its purview any conduct which might otherwise be shown to have been captured by another provision in Part 7.
(3)The conduct relied upon does, if characterised in the way suggested by Gray J and with which I respectfully agree, prima facie ‘cover the main ground’ such as would, if proved, found a conviction under s 241 or s 243 or both of them.
(4)The fact that a common law conspiracy overlays the primary charge does not, it seems to me, absolve the prosecution from satisfying the court beyond reasonable doubt that the conduct is ‘not otherwise dealt with’.
It is then convenient, in isolating the elements of the offence charged, to refer to the remarks of White J in McGee at [296]:
Relying on R v Rogerson the respondent submitted that the elements of the offence of conspiracy to attempt to pervert the course of justice of the kind alleged against the appellants are:
(i) two or more people enter into an agreement to do an act or series of acts;
(ii) with the intention thereby of perverting the course of justice; and
(iii)the act or series of acts intended, if done pursuant to the conspiracy in the circumstances contemplated by the conspirators, would have the tendency to pervert the course of justice.
I am content to adopt that as a statement of the relevant elements, save only that in this case the prosecution will also have to establish that the “manner” of the perverting of the course of justice alleged is “not otherwise dealt with in the preceding provisions” of Part 7 of the CLCA.
The prosecution must prove each of those elements beyond reasonable doubt.
As the extract from Rogerson establishes, the offence is an inchoate offence in the sense that it is complete without the doing of any act, save the act of agreeing to pervert the course of justice. It is the unlawful agreement which is the actus reus. Sometimes the very nature of the agreement will demonstrate the required intention of perverting the course of justice, but not always. In Rogerson (supra) at 282 per Brennan and Toohey JJ:
Of course, where there is an agreement to do an act that has a manifest tendency to pervert the course of justice, proof of an agreement to do the act may suffice to prove the intent thereby to pervert the course of justice. But, if the act to be done is of such a nature that its tendency to pervert the course of justice is not manifest, proof of an agreement that the act be done does not, without more, amount to proof of a conspiracy to pervert the course of justice: in such a case, there has to be proof of an intent to do an act that will have the effect of perverting the course of justice. The state of an alleged conspirator's knowledge of the nature of the relevant act is of critical importance. An act which is not known to have the tendency or is not intended to have the effect of perverting the course of justice is not an act the doing of which attracts a liability to punishment as for an attempt to pervert, or a perverting of, the course of justice. An agreement that such an act be done made among persons who do not know that the act has such a tendency and who do not intend it to have that effect is not a conspiracy to do an unlawful act. To establish a conspiracy to pervert the course of justice, it is necessary to prove an agreement to do an act which the conspirators either know will have a manifest tendency to pervert the course of justice or which the conspirators intend to have such an effect. In this context, knowledge and intent relate to the acts and circumstances contemplated by the conspirators; the legal complexion of those acts and circumstances is a question of law.
(my emphasis)
Relevant then to the elements of the intention which must be proved and the tendency to pervert are the remarks of Brennan and Toohey JJ at 283/4:
Although police investigations into possible offences against the criminal law or a disciplinary code do not form part of the course of justice, an act calculated to mislead the police during investigations may amount to an attempt to pervert the course of justice. An act which has a tendency to deflect the police from prosecuting a criminal offence or instituting disciplinary proceedings before a judicial tribunal or from adducing evidence of the true facts is an act which tends to pervert the course of justice and, if done with intent to achieve that result, amounts to an attempt to pervert the course of justice. It impairs the court's capacity to do justice in the actual circumstances of the case …
When the Crown must rely on inference to prove the intent of alleged conspirators to pervert the course of justice by the doing of an act which tends to mislead the police in their conduct of an investigation into a possible offence, the evidence must be capable of supporting at least -- (1) an inference that the conspirators believed that the police might invoke the jurisdiction of a court or of some competent judicial authority or might invoke that jurisdiction unless the relevant act deflected them; and (2) a further inference that the conspirators either knew that the relevant act would have a manifest tendency to pervert the course of justice in a relevant respect or intended that the act should have that effect. It is not sufficient for the Crown to prove merely an intention to deceive the police.
(my emphasis)
Even so, proof of the tendency to pervert the administration of justice is, of necessity, an objective test (c.f. Meissner v The Queen[15]).
[15] (1995) 184 CLR 132 at 148 per Deane J
- Proof of the Tendency to Pervert the Course of Justice is an Objective Consideration
The defence contended that, on one view of the prosecution evidence, Eugene’s blood alcohol at the time of the collision was either zero or close to it, so it cannot be properly said that any act which deprived the court of that evidence or evidence of sobriety would have a tendency to pervert the course of justice.
The prosecution argued otherwise, saying that such a tendency does not rest upon the incriminatory potential of the true facts, but simply on the footing that the true facts will have been concealed from the tribunal.
The following observations are pertinent:
(1)It is not for this court to assess what would have been the likely value of evidence of observations of sobriety or of a blood alcohol reading made or taken within any particular time of the accident, had it been available to the court which tried Eugene. Mr Lokan’s evidence here was necessarily limited by two variables, namely, assumptions as to the amounts of alcohol consumed by Eugene over the agreed period and estimates of his likely alcohol elimination rate. Had there been an actual blood alcohol reading available to him and had evidence been available of observations as to sobriety, that evidence, coupled with expert evidence as to what part either may have played in the driving, may well have meant that the trial court would have been better informed over matters relevant to the charges against Eugene.
(2)It is not to the point that facts concealed from a court might not ultimately have proved decisive or even of real evidentiary value: they must obviously be facts having at least some potential value or interest in the likely court hearing but it is their tendency to pervert the course of justice, by seeking to prevent the court from learning of them, which is decisive (R v Vreones[16] and Meissner v The Queen (supra) at 149).
[16] [1891] 1 QB 360 at 369
- As to Intention
I have already cited Rogerson at 284.
Whilst the allegation here does not concern an act tending to mislead the police, it does rely upon an allegation that acts were carried out which intended to conceal from a court evidence as to Eugene’s blood alcohol and sobriety levels. The same observation in Rogerson leads to the conclusion that when, as here, the Crown relies on inference to prove that concealment, the evidence must be capable of supporting inferences that:
(1)the conspirators believed police might invoke the jurisdiction of a court; and
(2)they knew that their conduct would have a manifest tendency to pervert the course of justice in a relevant respect or intended that it would have that effect.
It is not enough that one of them might have such knowledge or intention. In Segal v R[17] the court observed:
It is essential for the existence of a conspiracy that there are at least two persons who agree or combine together to accomplish the purpose in view, and to render a conspiracy criminal it is essential that the purpose be an unlawful one or that, if lawful, it should be accomplished by some unlawful means. It is also essential that each of the two parties to the conspiracy has knowledge or is deemed to know that the carrying out of the purpose involves the commission of an indictable offence. Both must know or be deemed to know that what they purpose to do or accomplish is unlawful. If only one of them has such guilty knowledge, it is not a conspiracy; one may be the tool of the other but they are not co-conspirators. The offence consists in the agreement to commit the fraud – in the plotting – and not in the means employed to give effect to it.
[17] (1925) 45 CCC 32
As the court observed in Rogerson, it is not enough to prove merely an intention to deceive the police.
Further, it is important to record that for a charge of conspiracy, proof of mere recklessness is insufficient to establish intention (R v Moran & Mokbel[18])
[18] [1999] 2 VR 87
- Summary
I have encountered some difficulty in reconciling the approaches to verdict respectively proposed in Masters (supra) and by the Court of Criminal Appeal in this matter.
The first step suggested by Masters necessarily requires not merely the existence of an agreement but proof of its unlawfulness and, impliedly as I view it, intent. The second step simply focuses upon who was party to it and whether there is prima facie evidence of their participation, and the third, on the question of overall proof. The purpose of separating these issues appears to me to lie in the differing admissibility considerations which apply at each point.
They do not, as I see it, describe a pathway to verdict and I propose instead to approach my finding by considering the separate elements identified by White J in the Court of Criminal Appeal, but keeping in mind the admissibility issues raised in Masters.
Those elements are:
(1)Did each accused enter into the agreement relied upon by the prosecution?
(2)If yes, was that agreement entered into with the intention of thereby perverting the course of justice?
(3)If yes, did those intended acts have the tendency to pervert the course of justice?
(4)If yes, was the manner of that intended perversion not otherwise dealt with in any preceding provision of Part 7 of the CLCA?
Discussion and Conclusion
I turn then to consider whether the prosecution has proved against each accused, each of the elements of the offence charged.
The matters relied upon by the prosecution are:
(1)that because of the circumstances of the collision, because he was aware of his prior consumption of alcohol and because of his legal knowledge, Eugene can be assumed to have known:
·    that police would want to investigate it and particularly his blood alcohol reading and level of sobriety;
·    of their powers in this respect, particularly those exercisable within two hours of the collision;
·    of the likelihood, particularly after he left the scene, of having to face legal proceedings and of the relevance of demonstrated alcohol consumption in them;
(2)that it can be inferred from his failure to stop at the scene that he wished to deny police the opportunity to investigate those matters;
(3)that, further, it can be inferred from his early call and the several later telephone conversations he likely had with Edwardson, a barrister, that he was immediately after the accident concerned about his legal and professional position and obtained some advice about it, particularly in the context of his prior alcohol consumption;
(4)that it can be inferred that, for all these reasons, he planned to stay out of contact with police for several hours after the collision and realised he would need help in achieving that;
(5)that it may be inferred from the level of their telephone contact in the period soon after the collision and their subsequent conduct that he told Craig of the collision and of his desire to see his legal adviser in Adelaide and not to see police in the meantime, and that Craig agreed to assist him in that endeavour by driving back to Rowett Street, meeting him there and driving him to Adelaide;
(6)that telephone evidence tended to show he remained in the general Freeling-Greenock-Kapunda area and it may thus be inferred he sought to keep away from police to allow sufficient time for:
(a)    the two-hour period to elapse; and
(b)    Craig to arrive back from his location half-way to Winkie; and
(c)    Craig to then drive him to Adelaide in his own car, thereby avoiding police detection;
(7)that in furtherance of that agreement Eugene took his car to Rowett Street some time after 7.06 p.m. and, significantly, a time close to but possibly after the expiration of the two-hour period;
(8)that in furtherance of their plan, Craig lied to police and conveyed to them no knowledge of the accident or Eugene’s whereabouts when they called at Rowett Street at 6.50 p.m. and this had the effect of diverting them from that address. Craig then told Eugene by telephone of their visit and departure, and some time later Eugene returned to the house;
(9)that they left Rowett Street together in Craig’s car soon after Eugene arrived there and Craig likely then drove through a police roadblock in circumstances whereby police were unlikely to detain his car. Craig did not stop there nor, it can be inferred, did Eugene ask him to;
(10)that it may be inferred Eugene deliberately did not answer a telephone call made to him by Sergeant Mills at about 7.20 p.m.;
(11)that it may be inferred from all the above that Eugene made Craig aware of his plan to avoid police not merely so he could go to Rowett Street and see his legal adviser, but so that he could avoid police investigation of his sobriety and blood alcohol level;
(12)that by the time solicitor contact was first made with police at about 9.15 p.m., the purpose of preventing useful police investigation of his alcohol level had been achieved;
(13)that the fact Eugene smelled of alcohol at 11.30 p.m. points to the existence of an investigation risk he was seeking to avoid.
The factual matters upon which the prosecution relied in advancing those propositions were largely uncontested, but the inferences it sought to draw from them were very much in issue.
Where the evidence relied upon in proof of an element of a charge is wholly circumstantial, I must consider whether its combined force is sufficient to establish that element beyond reasonable doubt. If I find there is any reasonable hypothesis that is inconsistent with proof of that element, then I may not find the element proved beyond reasonable doubt and that will be fatal to the charge.
I go then to the first element. Has the prosecution proved beyond reasonable doubt the existence of the agreement here relied upon, namely, to ‘frustrate, deflect or prevent’ the police from ‘investigating or adducing evidence of the blood alcohol reading and sobriety’ of Eugene?
I should at this point say that whilst proof of the existence of a conspiracy is, for reasons discussed, notionally quite distinct from proof of the participation of an accused in it and involves different evidentiary questions, in the particular circumstances here it is unrealistic to approach the question of the existence of any such an agreement other than in the context of the background evidence and the proven interaction between Eugene and Craig. As in the Associated Northern Collieries case (supra), there is in that evidence a ‘concurrence of time, character, direction and result’ such as to lead to the ready inference that Craig and Eugene must have been parties to an agreement of some kind. Just what that agreement was and whether it was the one relied upon by the prosecution, however, is another question.
Before I approach it, I should say that I am satisfied beyond reasonable doubt that the following matters have been established by the prosecution:
·that after the collision occurred, Eugene wished to avoid immediate contact with the police;
·that he then drove or otherwise concealed his vehicle so as to achieve that;
·that within 10 minutes of it he made contact with Edwardson, a barrister, and thereafter had several telephone discussions with him which I am satisfied likely touched upon his legal position;
·that about 30 minutes after the collision and at 5.37 p.m. and 5.50 p.m. he spoke to Craig by telephone and told him of the collision and of the likelihood that police would be looking for him and of his desire to avoid contact with them prior to seeing his lawyer;
·that in the course of those telephone calls the accused agreed upon a plan that both would return to meet at Rowett Street, that Craig would then drive Eugene to Adelaide in his (Craig’s) car to see his legal adviser and that they would do whatever was required to avoid police making contact with Eugene before that time;
·that in consequence Craig turned back from his trip to Winkie and drove to Rowett Street. He was at the time approximately half‑way to Winkie and one hour from Kapunda;
·that Craig, of his own volition, deliberately chose not to assist police with any information as to Eugene’s whereabouts or telephone number when they called and met him at Rowett Street at 6.50 p.m. that evening;
·that after that meeting with police, Craig rang Eugene and told him of their arrival at Rowett Street and their departure;
·that Eugene and Craig met at Rowett Street at some time soon after 7.06 p.m. and Craig then drove Eugene to Adelaide to his lawyer’s house, passing through a police roadblock on the way.
I further infer and am satisfied that when they agreed on these matters they both anticipated police would be looking for Eugene and they believed some form of court proceeding was likely.
All of that does not, however, establish an unlawful purpose. As I have elsewhere noted, there was no legal obligation then falling upon Eugene to surrender himself or upon either of them to assist police. Proof of the first element here requires the prosecution to establish beyond reasonable doubt that their agreement was specifically one to frustrate, deflect or prevent police from investigating or adducing evidence of Eugene’s blood alcohol level and sobriety, and, in considering whether it has done that, I ignore, as counsel conceded, the separate evidence each of them gave at the prior hearing. The existence of such a plan is, of course, an available inference on the facts as I have found them to be, but there appear to me to be a number of rational hypotheses which are quite inconsistent with its proof beyond reasonable doubt:
(1)If Eugene’s object in staying out of police contact was to avoid the two hours within which a breathalyser might be demanded of him or to limit the value of sobriety observations within that time, on the facts he then had no need of Craig’s assistance in achieving that and there could have been no real purpose in reaching an agreement that Craig would assist him in it. When they first spoke, one half hour had elapsed since the collision and Craig was then about one hour distant from Kapunda so it is difficult to conceive what Craig could have done to help. Eugene, by his own conduct, demonstrated that he was quite able to avoid being found by police within that time without help from anyone. If indeed that was his true aim, he would not likely have returned to Rowett Street before 7.06 p.m. anyway, irrespective of anything disclosed to him by Craig, and even had he been intercepted by police he may have chosen to refuse a breath test. In any event, I am not satisfied Craig was aware of his precise whereabouts or distance away from Rowett Street at any particular time.
There was, at the very least then, an uncertain prospect of Craig being able to provide any kind of assistance to Eugene before 7.06 p.m. were Craig even alert to the precise period which had elapsed since the accident and its evidentiary significance.
(2)As events transpired, Craig did not assist police with their enquiries at Rowett Street at 6.50 p.m. and he then informed Eugene of their visit and departure, but it is a reasonable possibility that he so acted, not because of a specific plan to help Eugene avoid police for two hours, but simply because of the general plan, which at the least I am satisfied they made, to ensure there was no police contact before he could see his lawyer. It is reasonably possible that Craig then had no particular awareness of the significance of the two-hour period or, even if he had, of the time at which it expired, so as to appreciate its then significance.
It appears to me likely that the prospect of a police visit to Rowett Street when Craig was there and within the two-hour period, or indeed at any particular time at all, was not anticipated by either of them. Why might police be alerted to that address having, ostensibly, no more information than the Pajero particulars and its potential driver?
(3)To the extent that Craig agreed, as I find it, to meet Eugene at Rowett Street, to take him to Adelaide and to assist him in avoiding contact with police, it is a reasonable possibility that he believed that that assistance was for the sole and specific purpose of enabling Eugene to first see his legal adviser before deciding what to do about police interest in him. By the earliest time that meeting could likely occur, at least three hours were destined to pass anyway.
(4)It is a reasonable possibility that Eugene might even have told Craig that he intended to stay away from Rowett Street for two hours and of the legal and evidentiary significance of his doing that, but as he required no obvious assistance from Craig in doing that and because Craig was likely to be spending most of the unelapsed time driving to Rowett Street anyway, it is a reasonable hypothesis that Craig, accepting his brother’s superior knowledge of the law, simply accepted that as Eugene’s stated intention and saw his only role in the matter as one of driving Eugene to Adelaide. In other words, no agreement on any two-hour stratagem of Eugene’s was sought by Eugene or required, and their only agreement related to what would happen when Eugene returned to Rowett Street.
(5)Given Eugene’s status and their familial relationship, it is also a reasonable possibility that Eugene simply told Craig about the accident and his failure to stop and asked for his brother’s help in avoiding police until he had obtained legal advice and that Craig accepted that information and agreed to help without giving any real thought as to why Eugene had that plan. In that scenario, Craig may have considered that Eugene’s concern was focussed upon the fact he had failed to stop after a very serious accident and not upon any question of alcohol.
It is not without significance, in these contexts, that Craig then remained with Eugene until police arrived at Edwardson’s house at 11.30 p.m. and was present in the room when Eugene was arrested. That appears to be inconsistent with any belief on his part that he had just participated in the alleged criminal act.
(6)Whilst I have found Eugene wished to avoid contact with the police before seeing his lawyer in Adelaide, it is a reasonable possibility that his reason for avoiding that contact had nothing to do with any perception he had as to his blood alcohol level or sobriety. On one view of the Lokan evidence and given Eugene’s expected general knowledge of alcohol consumption and elimination rates, he may not have had reason to feel particularly apprehensive about his likely blood alcohol reading or apparent state of sobriety if apprehended. In the context of having been involved in a road accident which had likely caused serious injury or death, he had already committed very serious offences and, in his own mind, they may have been reason enough, independently of any alcohol question, why he might want to see his lawyer before surrendering to police. In that context and given police powers under the Criminal Law (Forensic Procedures) Act and Eugene’s likely awareness of them, it is of some note that he was proffering himself for interview and potentially a blood test within approximately four hours of the accident, albeit that police did not choose to act immediately upon that.
It is thus a reasonable possibility that, in those circumstances, he had no reason to reach a specific plan with Craig to avoid seeing police for any reason connected with alcohol.
(7)Even had Eugene been apprehensive about contact with police within two hours, or indeed any reasonable time afterwards, because of a concern about the alcohol level in his blood, he may have seen no reason to explain that to Craig and, indeed, he may have thought there was good reason to protect Craig from any asserted complicity in avoiding police for that purpose and therefore not told him of his concern. He might have considered it enough to say that he wished to avoid contact because he had been involved in an accident where a person had been seriously injured or killed, he had not stopped or helped, that that put him at risk of prosecution and that he first wanted legal advice.
(8)Whilst it may be readily inferred that Eugene would have been alert to the prospect of police making observations as to his level of sobriety or otherwise exercising powers under the Criminal Law (Forensic Procedures) Act were they to make contact with him within any reasonable time of the accident, irrespective of any two-hour period, and as well to the potential evidentiary value of such observations, it is a reasonable possibility that unless Craig had noticed something about Eugene’s conduct when they were last together that suggested he was noticeably affected by alcohol (and there was insufficient evidence suggesting he should have), it would not have occurred to Craig, as a layman, that police might see it as a valuable or useful part of any investigation to undertake such procedures or make such physical observations. Further, it is a reasonable possibility that Eugene, particularly given his likely self‑assessment of his sobriety, might not have informed Craig of the prospect and potential significance, were he to be intercepted, of such investigations or observations.
(9)I am unable to conclude that the agreement reached between them to meet at Rowett Street was in any manner probative or indicative of the asserted conspiracy. They were both mobile, driving in the countryside and readily able to contact one another. Eugene could have left his vehicle anywhere. By agreeing upon a meeting place anywhere in the vicinity of Kapunda, Eugene was necessarily increasing the risk of his apprehension, yet he chose to do that. Given his earlier telephone contact with his mother, there is a reasonable possibility that he went to her house, not as part of any plan or aim to avoid police detection and investigation of his alcohol level, but rather because he knew he was in trouble and, given her mental condition, wanted to tell her personally what had happened and that that plan, and not any other, lay behind his arrangement with Craig to meet there. It is also reasonably possible that he planned to drive there as soon as Craig had arrived and contacted him (which might have occurred within the two-hour period) but that that aim was frustrated by the intervening arrival of the police.

I have already touched upon the separate question of whether there is reasonable evidence of the participation of each accused in the agreement or combination relied upon by the prosecution and upon the considerations of admissibility which apply to it, but as I have not found that agreement proved beyond reasonable doubt, I need say no more on the topic.
In summary, whilst proof of the first element points to the possibility that the accused agreed to frustrate, deflect or prevent police from investigating or adducing evidence of Eugene’s blood alcohol level or sobriety, that is not enough. It might even be likely that such an agreement was concluded, but that would still not be enough. Unless the prosecution has proved the existence of such an agreement beyond reasonable doubt, that first element will not have been established.
In a case based on circumstantial evidence, the existence of a single rational hypothesis consistent with innocence must always lead to the conclusion that the prosecution has not proved the charge beyond reasonable doubt. Here, I have found there are several such hypotheses, any one of which would necessarily lead to that same conclusion. They all relate to proof of the first element of the charge and, it not having been established, as was remarked in Ahern at 94, ‘that is the end of the matter’, and both accused must be acquitted.
I will, however, for the sake of completeness, touch upon the remaining elements.
As to proof of intention, I may, in considering each accused, separately have regard to what that accused said in the previous hearing and, in the case of Eugene, to the psychiatric evidence.
In the case of Eugene, allowing, as I have, that it is a reasonable possibility that his cognitive functioning was affected by his dissociative condition (although to what extent it cannot be gauged), the evidence is that he was nonetheless capable of forming the required intention. Even so, to the extent that his judgment might have been so impaired, it is a reasonable possibility that his state of mind was such as to prompt an act of recklessness as opposed to one of specific intention. If that were so, it would not suffice to prove this element.
Further, as to Craig, he provided a plausible explanation in his evidence for assisting Eugene and one that is inconsistent with the asserted conspiracy.
From another perspective, there is a body of evidence pointing to the conclusion that Eugene conducted himself in the manner he did because he intended to prevent police from testing his breath or otherwise testing or observing his condition. It is unnecessary for me to consider, however, whether that intention was established beyond reasonable doubt, and for the reasons that:
(1)the first element has not been proved - a person cannot conspire by himself (Segal, supra) and, on any view of the evidence, for reasons largely touched upon in discussing the first element and, as well, because I am not satisfied the evidence shows that Craig ‘knew that the relevant act would have a manifest tendency to pervert the course of justice … or intended (it)’ (Rogerson at 284), I could not have been satisfied beyond reasonable doubt that Craig had the requisite intention;
(2)in considering the question of intention, I consider that in each case the evidence of the particular accused raised matters and provided explanations which amounted to reasonable hypotheses inconsistent with proof beyond reasonable doubt of the required intention. It is unnecessary to deal with them now.
As to the third element, were the first two proved beyond reasonable doubt I would have had no difficulty, in the face of Rogerson and the remarks of the Court of Criminal Appeal here in McGee, in finding that the asserted conduct would have had a tendency to pervert the course of justice.
Finally, as to whether the prosecution has proved beyond reasonable doubt that the manner of the alleged perversion is not otherwise dealt with in Part 7 of the CLCA, had the first three elements been proved, I would likely have concluded, for reasons touched upon, I was not satisfied beyond reasonable doubt that the manner of acting relied upon in keeping police away from taking a breath or blood sample and making sobriety observations would not have amounted to offences under ss 241(1)(a) and 243(a), which could themselves be the subject of the alleged conspiracy. I would then have concluded that the accused were wrongly charged.
In the event, for all the above reasons, I find each of Craig and Eugene McGee not guilty of the offence charged.