Retrial ordered for DUI motorist

A DRIVER sentenced to a decade behind bars for hitting and killing a teen while drunk at the wheel could have been acquitted if his lawyers did their job properly, the state’s top court has ruled.

The man, known only by the pseudonym Phillip Hartley, was jailed for 10 years with a non-parole period of seven years for hitting and killing the 17-year-old byouth.

He recorded a blood-alcohol level of .101, which is double the legal limit.

But the Court of Appeal this week set aside the man’s conviction and ordered a retrial after it was revealed a key piece of evidence was missing from his defence case.

The evidence, an accident reconstruction report, was commissioned by Mr Hartley’s solicitors. It challenged the Crown’s case that he was doing over 90km/h in a 60km/h zone when he crashed.

Instead the report concluded that Mr Hartley’s true speed was between 60 and 65km/h.

But the report was never given to his barrister and so never used at trial.

In the Court of Appeal, Justice Michael Croucher said the consequence was a substantial miscarriage of justice, which could only be remedied by a new trial.

“I am satisfied that Mr Hartley has been deprived of a chance of acquittal that was fairly open to him as a result of the fact that trial counsel was not provided with the report, and that there has been a substantial miscarriage of justice in consequence,” he said.

Mr Hartley lost control of his car as he turned a corner and swerved to avoid hitting the teen, known only as AB, who was walking across the road. He phoned 000.

He later admitted drinking at least five beers before the crash, but medical evidence concluded he must have drunk more than that.

Mr Hartley was convicted of culpable driving causing death.

I AM SATISFIED THAT MR HARTLEY HAS BEEN DEPRIVED OF A CHANCE OF ACQUITTAL THAT WAS FAIRLY OPEN TO HIM

JUSTICE MICHAEL CROUCHER

Justice Croucher, in a joint decision with Justices Kim Hargrave and David Beach, said Mr Hartley’s lawyers were absent at trial because of a lack of legal aid funding.

“When, as here, a solicitor’s failure to apprise trial counsel of a report which, on any rational forensic view, would have led to counsel calling its author to give evidence at trial and thereby assist materially in his client’s defence against a major plank of the Crown case, it can be said conclusively I think, that his client has been deprived, wrongly, of a chance of acquittal that was fairly open to him,” he said.