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Letter to Rob hulls from Debbie McMellan

Discussion in 'Politics, Laws, Government & Insurance' started by MrOkimura, Nov 21, 2004.

  1. The Honourable Rob Hulls, M.P.
    Attorney General
    Justice Department of Victoria
    Level 1, 55 Andrews Place,
    East Melbourne. 3002

    19th November, 2004.


    Dear Minister,

    I am writing regarding some specific concerns in relation to our legal
    system. I am not currently working but have previously served 10 years
    as a member of the Victoria Police and spent some time working as a
    Police Prosecutor. On numerous occasions I have had to deal with what
    can only be termed as ‘soft Magistrates’. As police members we are
    trained to prepare briefs and give evidence to the best of our ability
    and to leave the rest to our legal system. As a result of this training
    we are able to control our emotions when it comes to verdicts and
    sentencing but for the victims this is not the case.

    I am now writing to you as one of the victims. My brother was recently
    killed in a hit run accident by a drunk driver who was almost three
    times over the legal alcohol limit. The 27 year old female driver was
    interviewed by the Major Collisions Squad early hours of Sunday morning
    and was bailed to appear at the Melbourne Magistrates’ Court the
    following morning. One of the conditions of her bail was that she not
    drive a motor vehicle.

    I was present in court the following day when the matter came before
    Magistrate Ian Gray in court one. The female was represented by Counsel
    who immediately made application for a bail variation regarding her
    driving. A summary was heard from Police and her counsel made a brief
    submission to the court on her behalf. The court was told that she
    worked for a company in Campbellfield as a sales representative and her
    duties included driving for company business.



    The Magistrate Ian Gray asked, (not quoting) whether she knew if the
    existing bail condition would in fact cause hardship at work resulting
    in a loss of her job or her livelihood. In the next breath he then
    answered his own question by saying that he guessed she didn’t know the
    answer to that. It was plainly clear at this point that he was going to
    grant the application.

    Counsel explained that she worked from 8am to 5pm Monday to Friday with
    no extended hours.
    He also explained that she worked three of those days at the office and
    the other two away from the office interacting with customers.
    Magistrate Ian Gray ruled that her bail be varied to allow her to drive
    during the hours of 8am to 5pm, Monday to Friday for work purposes only.
    It was also clarified, at the request of the prosecutor, that this did
    not include travel to and from work and that she needed to arrange some
    other form of transport for these journeys.

    I am absolutely astounded at the ease with which the application to
    vary bail was granted. There was absolutely no evidence or
    documentation put before the court to show that the existing bail
    condition would in fact affect her employment. Counsel did not provide
    a letter from her employer or any other basis for their application
    other than speculation. How does a person who has proven by their own
    actions that they cannot be a responsible, safe driver on our roads,
    suddenly become responsible and safe during the hours of 8am to 5pm
    Monday to Friday whilst they are at work? How does a person who killed
    another innocent motorist, who was driving a company vehicle whilst
    under the influence of excessive alcohol still have a job to talk of
    during a bail variation application? Did Mr Gray ask this question?

    I am now sitting on the other side of the fence, it is my turn to have
    the police member who has just diligently completed his role in the
    court proceedings, explain the logic and fairness of this decision.
    This person, whilst affected by alcohol, drove a vehicle and killed
    another motorist, and then failed to stop and render assistance, and
    less than 48 hours later they are allowed to drive home from Court. The
    fundamental question for me will forever remain the same, this person
    killed another motorist, they made choices - to drink excessively and
    drive, to hit another human being with their vehicle and then fail to
    even consider rendering assistance and yet they still are seen fit to
    retain the privilege of holding a licence?

    When are these ‘soft Magistrates’ going to consider the innocent
    victims in these matters? She (the accused) made her choices, she
    decided to get behind the wheel of her car that night. At 27 years of
    age she is not inexperienced. Hers was not an error in judgement but a
    blatant disregard for our laws. As a result, we, as family and friends,
    are all victims. We weren’t given a choice.

    I understand that for alcohol readings of 0.15% or higher the law
    allows for immediate loss of licence, prior to any court hearing proving
    guilt or innocence. Surely with an alcohol reading only marginally
    below this and after a hit run motor vehicle accident resulting in the
    death of an innocent person, a bail condition prohibiting a person from
    driving a motor vehicle is not unreasonable.

    Our Magistrates have choices, they have some discretion. When are the
    rights and feelings of family and friends who fall victim to the
    careless and culpable actions of others going to be considered? I have
    attached a copy of a letter that I wrote shortly after my brothers death
    which highlights the impact other peoples choices have on our lives.
    The accused who appear before our courts should be held accountable for
    their actions just as our Magistrates should be for their decision
    making process.

    Yours Sincerely,
    D. J. McMellan.

    [attachment]

    The Rose And The Thorn


    Can someone please tell me why the thorn lives on but the rose must die.

    It was just another Saturday night. Heading out the door to celebrate a
    friends 40th birthday when the phone rang.

    A man on his motorbike, a brother; a son; an uncle; a stepfather; a
    grandfather; a best friend; a lover; a mate; a husband to be; on his way
    home from work. Something we all do everyday - only this time he
    wouldn’t make it.

    Ironically, she too was on her way home, not from work but from an
    afternoon drinking with a friend.

    Whoever would have thought that their paths would cross and result in
    such tragedy. So many lives changed forever. So many people suffering.
    Should she too suffer? Should she too be made to pay with her life,
    her freedom? They say revenge is sweet, an eye for an eye, but it
    wont bring my brother back.

    Why should these people be given a second chance at being responsible on
    our roads. I can only hope that our legal system is strong enough to
    prevent history repeating itself in the future.

    Debbie McMellan.
     
  2. Soft Magistrate

    Hi Debbie
    Condolences first.

    I have been on the end of a soft decision and it infuriated me. However, one of the reasons for the soft decision seems to have a resemblance with your situation.
    While the Magistrate has the ultimate decision to make, he can be and often is influenced by briefs before the case as well as during.
    I would have to ask, why did the prosecutor not immediately object as they do in other cases where bail is to be set?
    If the prosecutor had said something along the lines of that there was no guarantee that she would not reofend, would the Magistrate not reconsider the application for variation? I would hope that he would rethink. It appears to me that both the Magistrate and the prosecutor have erred.

    It seems that the row about compulsory sentencing is still being felt. This is one of the results.

    In a recent horse race, the stewards were going to disqualify a horse if it returned a positive. That was because the rules used the word 'Must'. If we had the same thing in our road laws this case would not be an issue because the licence would have been removed without argument. The argument to me that removal of the licence before a trial is unfair is rubbish. The police have a prima facia case. If she is found innocent then she can apply for compensation. I doubt if police would go this far if there was no evidence that would convict. Therefore the licence should be taken. End of story. Her plea for hardship? Ask the rider's family about their hardship. She did willingly commit a crime. Let her pay for the results. How many people lose their licence over simple speeding? (Not condoning speeding) How many get their licence back because of hardship? Not many (Some) But this has ended with a death. It is different.

    Brian.