Channel 7 Today Tonight (Adelaide) 11 May 2005

The Kapunda Road Royal Commission

This version of the transcript has been edited by Dr Robert N Moles

In order of appearance

Leigh McClusky, Presenter
Graham Archer, Producer and Interviewer
Stephen Pallaras QC, Director of Public Prosecutions [File tape]
Mike Rann, Premier of South Australia [File tape]
Paul Rofe QC, Former Director of Public Prosecutions [File tape]
Bob Moles, Author A state of injustice
Alexander Ward, President of the Law Society [File tape]
Michael Atkinson, Attorney-General [File tape]
Carol Whitelock, Radio 891 Announcer [File tape]
Michael Abbott, QC [File tape]
Wayne Chivell, Coroner [File tape].

Program

Leigh McClusky

First tonight, on the eve of the Royal Commission into the prosecution of runaway criminal lawyer Eugene McGee, the battle lines seem to be drawn between those who insist our justice system is working well - and those who believe it's in serious trouble. Now in the end, the Royal Commissioner, former New South Wales Supreme Court Judge, Gregory James, must reach a conclusion, which will either embarrass the Premier - or be a slap in the face for our new outspoken DPP, Stephen Pallaras.

So what can the Royal Commissioner achieve in just six weeks - and which of the two major combatants will be proven to have spoken too soon? Graham Archer has this special report.

Stephen Pallaras QC

[Speech to the Press Club] Our criminal justice system is at risk. It is under siege, largely because it stands between politicians, media and a headline - and that's a disgrace.  

Mike Rann

[File tape] I think that it is good that Mr Pallaras is prepared to stand up to politicians and the media. Now I want him to go and lock up a few criminals as well.

Graham Archer

What are we to make of our very own Chicago shoot out - Premier Capone versus Elliott DPP Ness and his Department of Untouchables?

Stephen Pallaras QC

[Speech to the Press Club] The Eugene McGee matter is a defining moment in the relationship between politics and the criminal justice system. Over the last couple of weeks a number of politicians and commentators have engaged in what I consider to be a ploy - that has been as unjust as it is transparent.

Graham Archer

Both men have given the term “speakeasy” a new meaning; the Premier, being accused of shamelessly playing politics with the law.  

Mike Rann

My job is to take actions and to speak out as I believe it's proper for me as Premier to do so. And, of course, the lawyers do not like me speaking out.

Graham Archer

And the new DPP, Stephen Pallaras, for his ambiguous Press Club pot shots.

Stephen Pallaras QC

[Speech to the Press Club] The DPP fears no scrutiny.

Graham Archer

While threatening dire consequences for comments he regards as unwise or unfair.

Stephen Pallaras QC

[Speech to the Press Club] And it must stop. Hear me well. It will cause irreparable damage.

Graham Archer

The DPP has every right to reject the knee-jerk justice coming from the Premier and the Attorney-General, but he has as yet, a flimsy grasp of the history of the administration of justice in this State.

Paul Rofe QC

[file footage] It is with a good deal of sadness, that I announce my resignation as Director of Public Prosecutions today.

Graham Archer

The vacancy Mr Pallaras has filled should give him more than a clue that there is a problem deeper than politics.

Stephen Pallaras QC

[Speech to the Press Club] I've never seen anything like this - anywhere.

Graham Archer

That's because nowhere else would he find the DPP not held more accountable after a drink-driving charge or after we found him spending much of his working day at the TAB, and where the criminal lawyers’ response was:

Michael Abbott QC

[File footage] Firstly, I think you owe, you owe Mr Rofe an apology.

Graham Archer

[File footage] On what score?

Michael Abbott QC

[File footage] In view of what you said; I mean now is your opportunity to apologise.

Graham Archer

Where $20m was spent on the Snowtown appeal and prosecutions of those accused who'd already pleaded guilty to murder; where Mr Rofe admitted never having heard of the police investigator's Bible, the Forensic Procedures Manual; and when the only review done on the  DPP found his work to be “inept”. In the three cases he examined, what did the Solicitor General say about the performance of the former DPP?

Bob Moles

He said that Mr Rofe had behaved inappropriately; and that he'd given evidence to the court that was not consistent with the evidence that was actually on the files in cases.

Graham Archer

Yet the new gun in town expects the public to meekly swallow this:

Stephen Pallaras QC

[Speech to the Press Club] I pay tribute to the contribution to the criminal justice system made by my predecessor, the first South Australian Director of Public Prosecutions, Paul Rofe QC.

Graham Archer

Public confidence can't just be demanded, it has to be earned. The McGee case is just the latest example, which has ordinary South Australians asking how they would fare in such a system.

Can we be confident that we're all equal or treated equally before the law?

Bob Moles

The one thing that we can be confident of in South Australia is that we are not treated equally.

Graham Archer

Lawyer, Bob Moles is the author of A state of injustice, which highlights a host of miscarriages of justice which successive governments have chosen to ignore. Even the Nemer case brought no meaningful changes.

Bob Moles

The public have had no explanation or reassurance as to what has been done to fix things up to prevent that from happening in the future.

Graham Archer

Eugene McGee presents an interesting case study of the State's legal environment. As a criminal barrister and former police officer, he's been popular in both camps. A favourite in defending police officers and writing opinions for the Police Association - not that there's anything wrong with that - it's just a tight circle. But just how tight?

In your opinion, is there a club of lawyers in this city?

Bob Moles

Well, of course there is. If we look at the way in which recent cases have been decided there is the clearest possible evidence that lawyers, when they're subjected to the legal process, get better outcomes than other people would if they'd been in similar situations.

Graham Archer

When we asked the President of the Law Society, Alexander Ward, the same question he wouldn't even return our call; then chose laid-back afternoon ABC Radio as an easier option.

Alex Ward

[File tape from 891 radio] What the listeners should realise, should be comfortable with - the system actually works really well here in South Australia.

Carol Whitelock

[File tape from 891 radio] Not always?

Alex Ward

[File tape from 891 radio] I think always.

Graham Archer

There you go. And in two short weeks, Mr Pallaras has formed his own view on that subject.

Stephen Pallaras QC

[Speech to the Press Club] I can almost hear the response - that here's another lawyer who doesn't want scrutiny. Here's another lawyer, a member of the “lawyers' club” - to which I must say I have not yet been invited to join in South Australia; but I'd be anxious to know where and when it meets - and what the criteria are to join.

Graham Archer

And that may be simpler than he thinks. Just say “everything's fine” and “let's not look back”. Like mateship or even racism, there are prevailing attitudes that don't need clubrooms to make them real.

Stephen Pallaras QC

[Speech to the Press Club] And some of the people who criticise us for being in a club are lawyers themselves - which is a bit of a puzzle.

Graham Archer

It appears subscription is by no means confined to lawyers. Golfing mates from the media [screen shot of Geoff Roach - Advertiser article] can join in if they're prepared to stick to the rules. But the solution may be surprisingly simple. Hold those with a duty to uphold due process, police, lawyers, prosecutors, forensic pathologists, expert witnesses, accountable for the rules of office.

Bob Moles

Our system is a system of “due process” and that means a system of “proper procedures”. That means that we have to go about the job in the right way and we have to go through the proper procedures to make sure that we have a proper outcome.

Graham Archer

And are we doing that?

Bob Moles

Absolutely not.

Graham Archer

Perhaps tomorrow's Royal Commission should have a vastly broader and more basic brief than so far any grand-standing government is willing to risk. Can he overturn the verdict?

Bob Moles

No, he can't.

Graham Archer

Can he change the sentence?

Bob Moles

No, he can't.

Graham Archer

Can he press new charges against McGee himself?

Bob Moles

No.

Graham Archer

He clearly can't restore Ian Humphrey to his family. So what can the Commissioner achieve?

The State could see this as a test case of the performance of the system?

Bob Moles

Absolutely, I think that in fact, it's very much that. We've heard in recent days, people who've been involved with the system, in my view, inappropriately declaring that nothing's wrong. Well now we’ll have a very good chance to find out if that's the case.

Graham Archer

As an aspect of this accountability, an essential matter for the Commissioner is the advice McGee received after killing Ian Humphrey, central to which is the man McGee phoned one minute after the collision, lawyer and friend, David Edwardson.

David Edwardson

[File footage] … I actually opposed him being called - that application is refused.

Graham Archer

Edwardson is a criminal barrister, who clearly knows his stuff. He and Eugene McGee cut a deal with the DPP which saw lawyer Scott Aitken walk away, having killed two of his children in highly questionable circumstances, and he also worked on the Nemer defence. The issue in this case is did he act as a lawyer, or just a friend? It's a crucial question the prosecution left unanswered.

Prosecutor

[Voice over – McGee prosecution] The ambiguity is not capable of clarification. I do not intend to take it any further. I do not press it.

Graham Archer

Again, the solution is simple - ask Edwardson. Was he a friend or lawyer? Either way, what they discussed is vital to a proper understanding of what happened after the accident.

Bob Moles

What I would be interested to know, for example, is whether Mr Edwardson would have said to Mr McGee, look it's appropriate for you to go back to the scene and to disclose your involvement and to make sure an ambulance is called and that the police are  informed of what has happened.

Graham Archer

We assume, of course, Edwardson acted appropriately and, if his advice was given as a solicitor, he's not obliged to disclose what was said. On the other hand, lawyers also have an obligation to ensure that the law is upheld.

Bob Moles

There is a common misunderstanding which is along the lines that a lawyer can do anything they like to try and get their client off - and that's clearly wrong. As an “officer of the court”, you have an over-riding duty to ensure that the court is not misled and that the legal procedures are not abused in any way.

Graham Archer

We don't doubt that Edwardson properly advised McGee of his legal obligations. Nevertheless, his friend chose to avoid the police for over six hours - some of which time he was in the company of Edwardson and another lawyer. At 11.30pm that night, McGee was arrested at Edwardson's Norwood home. Strangely, the prosecution chose not to pursue the exact circumstances of the arrest.

Prosecutor

[Voice over – McGee prosecution] Whilst you were in the Norwood premises, had you made any observations as to any receptacles that were there?

Defence counsel

[Voice over – McGee prosecution] I object your honour.

Prosecutor

[Voice over – McGee prosecution] In that case I won't press it.

Graham Archer

Well, why not? We'll have to wait and see how hard the Royal Commissioner chooses to push. He might also ask why the prosecution didn't object to psychiatric evidence about McGee's state of mind after the accident, when the trial was about events leading up to the collision. And more puzzling is the lack of objection to its use in sentencing - even though McGee made a guilty plea.

Bob Moles

That pre-supposes that he knew what he was doing and behaved inappropriately in leaving the scene. But I understand there's also some psychiatric evidence to say that he was in a disassociated state and was therefore unable to control what he was doing.

Graham Archer

How could he be responsible for his actions except when it came to his sentencing submissions? However, we understand McGee was so pleased about the handling of his case, that he bought two of his lawyers and their families interstate trips two weeks before the verdict.

Stephen Pallaras QC

[Speech to the Press Club]  We're the guys who work long and hard to call to account those who offend against us. We're the good guys.

Graham Archer

Perhaps it would be more appropriate for Mr Pallaras to wait for the Commissioner's verdict on that. Anyway, as we've indicated many times, the DPP shouldn't carry the whole burden for our flip-flop attitudes towards due process.

Michael Atkinson

[Speaking at a public meeting relating to the McGee verdict] As Attorney-General, I want to apologise to Di Gilchrist and the Humphreys family for the outcome of our justice system in the case of Eugene McGee.

Graham Archer

But don't proper procedures require that judgement to be left to the Royal Commissioner to decide? However, now the AG (and Minister for Justice) has confessed to having failed us:

Michael Atkinson

[Speaking at a public meeting relating to the McGee verdict] For that person to pay so little by way of penalty is sickening.

Graham Archer

The least we can expect is for him, at last, to do something to fix the problems. His failure to genuinely address issues, such as the fundamental flaws in the US-crash expert’s report, which halted the Coroner's investigation into the Aitken case, is just one example screaming for attention.

Wayne Chivell

[File tape at public meeting] I'm a judicial officer. I'm, bound by the law and I'll do what the law requires.

Graham Archer

[File tape at public meeting] But within the law you have that power to review your findings and perhaps re-open the case?

Wayne Chivell

[File tape at public meeting] Well that's what the law says that I must do if I'm approached with fresh evidence.

Graham Archer

It's one of our many cases our new DPP needs to get the facts on and not solely from within his own office.

Bob Moles

I documented a number of cases, which are now on the public record, [in the book A state of injustice] as having been very serious failures of the justice system; and nobody's come back to me and said look I made a mistake, or I got it wrong, or I misunderstood something - but there's also a complete silence about what ought to be done about it, and it seems to me, that that's a situation that cannot be allowed to continue.

Leigh McClusky

Interesting days ahead.

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