The Advertiser: Trials derailed - Rofe warning
FORMER DPP Paul Rofe, QC, has weighed into the Eugene McGee case, saying he warned the State Government of flaws in the legal system that were allowing defendants to escape convictions in major crimes. He specifically referred to rules that allowed defence teams to call expert witnesses with little or no notice. “It’s derailed quite a few trials,” Mr Rofe said yesterday. “Psychiatric evidence can be used to absolve the defendant of responsibility. “It’s hard to find someone to contradict that evidence when you’ve only had a day’s notice.”

Premier Mike Rann will today announce that the powers of a royal commission are among many options Cabinet will consider as part of an inquiry into the trial of lawyer Eugene McGee, the hit-run driver who killed cyclist Ian Humphrey in November, 2003. Mr Rofe agreed with legal observers that the evidence of psychiatrist Professor Sandy McFarlane was pivotal in McGee’s defence of the charge of causing death by dangerous driving. Prof McFarlane told the jury McGee would have been “dissociated” from the events that followed the hit-run. Mr Rofe said his office had made submissions to the courts and to government over the past three years, asking for a change to the way expert evidence was introduced.

“Experts statements should be part of the pre-trial process, not sprung on a prosecutor,” Mr Rofe said. He said submissions made to the Government for changes to the Evidence Act and the Criminal Law Consolidation Act were rejected in favour of an approach to the Criminal Courts Committee which sets down guidelines for evidence. No change has been made. McGee was acquitted by a jury on Friday, April 22, of the charge of causing death by dangerous driving. But he was found guilty of the lesser charge of driving without due care and he had already entered a guilty plea to failing to stop after an accident and render assistance. On Thursday, he was fined a total of $3100.

Meanwhile, Mr Rann will announce more details today about the special legal powers that will be made available to confer on an interstate judge or former judge as part of the McGee inquiry. “A number of options are available, including passing special legislation to require witnesses to give evidence to the inquiry or giving the inquirer the powers of a royal commissioner,” Mr Rann said. “Ultimately, it will come down to what powers the inquirer feels they need to do their job as thoroughly and as quickly as possible.” The judge is expected to be named by the Government during a special week-long parliamentary sitting in Mt Gambier. The State Government also will introduce legislation for a tenfold increase in penalties for hit-run drivers. Independent MP Nick Xenophon questioned last week the performance of the prosecution after two witnesses came forward complaining about the treatment of their evidence.

Attorney-General Michael Atkinson also asked for an investigation into the DPP’s handling of the case. DPP spokeswoman and managing solicitor Pauline Barnett said the use of a “senior New South Wales barrister” was appropriate in the circumstances. Peter Barnett was chosen by NSW DPP Nicholas Cowdery, QC, after a request from then-DPP Paul Rofe. “He’s a Deputy Crown Prosecutor, one of just 15 in NSW; he’s a very senior man in criminal prosecutions who handles major Supreme Court matters,” Ms Barnett said. Responding to questions raised in last week’s Sunday Mail, Ms Barnett also confirmed the matter was overseen by Wendy Abraham in her capacity as Acting DPP and she was satisfied with how the trial was handled. Mr Barnett, a barrister since 1980, has returned to his Newcastle office. He said he would not comment on the trial.