Parliament Responds to McGee case on 10 Year Anniversary

The impact of the 2003 death of cyclist, Ian Humphreys, in a ‘hit and run’ resonated well beyond the loss experienced by his friends and family. For 10 years the case has angered and perplexed the South Australian community, and provoked sustained and savage media and political criticism of the police, and the legal profession and its regulatory systems.

However, this week the South Australian Parliament passed the Legal Practitioners (Miscellaneous) Amendment Bill 2013 to amend the Legal Practitioners Act 1981 (SA) to replace the existing categories of ‘unsatisfactory conduct’ and ‘unprofessional conduct’[1], with the categories of ‘unsatisfactory professional conduct’ and ‘professional misconduct’[2] . The new definition of ‘professional misconduct’ has a broad scope and should prevent a repeat of the aftermath of Humphreys’ death.

The case is well known: in 2003, a local lawyer and former police prosecutor, Eugene McGee, was driving home to Adelaide after having lunch with his mother and brother at a hotel near Gawler. At 5.05pm McGee collided with Ian Humphrey, who was riding his bike on the highway. Humphreys died from the impact. McGee left the scene, and within three minutes had telephoned his friend, Queen’s Counsel, David Edwardson. By 5.45pm the police had been alerted to the accident and were looking out for a car matching the description of McGee’s.

McGee drove to his mother’s house in Kapunda, where he left his own car, and his brother, Craig, drove them in his car to the Adelaide home of Edwardson. The McGees passed a police roadblock on the way home, but did not identify themselves. Edwardson contacted police, who arrived after a considerable delay and arrested McGee at 11.30 pm. The police did not administer a breath test, stating that it was redundant because of the time lapse between the incident and the arrest.

There was a media storm of outrage at the conduct of McGee and the police, which intensified when, in May 2005, he was acquitted of causing death by dangerous driving, and convicted only of driving without due care and failure to stop and render assistance following an accident. His defence was based on psychiatric evidence that he ‘dissociated’ after the accident due to post-traumatic stress disorder resulting from traumatic experiences as a police officer and a lawyer in the Snowtown murders. He was fined $2,250 and disqualified from holding a driver’s licence for twelve months. The expert evidence was strongly criticised by other psychiatric professionals after the trial.

There was a public and political perception that McGee avoided conviction for the serious offence by using his legal knowledge and legal and police contacts, giving rise to the serious allegation that an ‘old boys club’ protected its ‘own’ and that there was one law for lawyers and one for everyone else.

In response to consistent public outcry, a Royal Commission was created in 2005 to enquire into the collision, and its investigation and prosecution. An outcome of the Commission was that both McGee brothers were charged with conspiring to pervert the course of justice and perverting the course of justice over allegations they worked together to frustrate the police investigation to prevent McGee’s blood-alcohol reading being taken.

After delays by the defence of almost five years, in 2010 both brothers were acquitted of the charges on the basis that McGee was not required to hand himself in to police. The outcome created more public hostility and more slurs on the legal profession, which were fuelled by McGee advertising his availability to defend drink driving, culpable driving and dangerous driving offences.

In 2011, an attempt to prevent McGee from practising law also failed. The Legal Practitioners Conduct Board accepted he was suffering from post-traumatic stress disorder and ruled that it could only consider his actions in the first few seconds after the crash, which provided no basis for a ruling of unprofessional conduct.

Yet more opprobrium was heaped upon the profession: this time directed at its formal regulation mechanisms. However, the vilification of the Conduct Board was unfair. It was bound by the Legal Practitioners Act 1981 (SA) which defines the most serious category of lawyer misconduct, ‘unprofessional conduct’, as:

(a) an offence of a dishonest or infamous nature committed by the legal practitioner in respect of which punishment by imprisonment is prescribed or authorised by law; or
(b) any conduct in the course of, or in connection with, practice by the legal practitioner that involves substantial or recurrent failure to meet the standard of conduct observed by competent legal practitioners of good repute [3].

McGee’s conduct was outside the scope of the definition because the offences for which he was convicted were minor and, critically, were not undertaken in the course of his practice of the law. Unsurprisingly, this finding did not satisfy the public, and the pressure from the press, the media, the Liberal opposition, independent politicians and, especially, Di Gilcrist-Humphreys, Ian’s wife, did not abate.

As a result of the Bill passed this week, the Legal Practitioners Act 1981 (SA) will reflect the broad definition of ‘professional misconduct’ adopted in other Australian jurisdictions. This definition includes:

conduct of a legal practitioner whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to practise the profession of the law [4].

The changes to the definition of ‘professional misconduct’ have been generally welcomed by the profession and should more closely align the standards required of legal practitioners with those expected by the general community. This can finally clear the way for the reputation of the legal profession to be rehabilitated over time.

[1] Legal Practitioners Act 1981 (SA) ss 5, 76.
[2] The Bill introduces a number of other changes including to sections governing the amending, suspending or cancelling of practising certificates, professional indemnity insurance, trust accounts, the guarantee fund, the replacement of the Legal Practitioners Conduct Board with the Legal Profession Conduct Commissioner, mentoring schemes, community legal centres and complaints mechanisms.
[3] Legal Practitioners Act 1981 (SA) s 5.
[4] Legal Practitioners (Miscellaneous) Amendment Bill 2013 s 69(b).

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