Australia: man who ran over Indigenous teenager Elijah Doughty jailed for three years
by Calla Wahlquist, The Guardian, July 21, 2017
A Kalgoorlie man who admitted to running over and killing Indigenous teenager Elijah Doughty has been found not guilty of manslaughter, but was sentenced to three years in jail after being convicted of causing death by dangerous driving.
The jury at the supreme court in Perth took six and a half hours to clear the 56-year-old man, whose identity is still suppressed by the court, of manslaughter. But they found him guilty of the alternative charge of dangerous driving causing death, which he had admitted.
The verdict was met by gasps from the public gallery, followed by shouting. Some yelled at the man, “murderer!” while one told him “you will be raped and murdered in jail”.
Others swore at the jury, which did not contain any Indigenous people, saying they were “white cunts”.
Some of Elijah’s closest family, who were also in the gallery, didn’t speak but instead began crying softly.
In Kalgoorlie, a peaceful protest began outside the courthouse and marched to nearby Kingsbury park. Elijah’s friends, with police standing behind them, carried Aboriginal and Torres Strait Islander flags and called for justice.
Chief justice Wayne Martin sentenced the man to three years’ jail, backdated to his arrest on the day of the crash.
That sentence included a 25% discount for his early guilty plea to dangerous driving. Martin said the offence was on the “middle to lower” end of the scale of culpability: the man was not intoxicated, he was within the 110km/h speed zone at that part of the reserve, and his vehicle was in working order.
“Your culpability lies in driving a very large and heavy vehicle at a speed and in a terrain that would make it very difficult, if not impossible, to avoid the rider in the event they did something unexpected,” he said.
He said he accepted the man was “very remorseful” and gave a “truthful” account to police.
He considered his remorse, the anguish he felt about the impact on his family, whose house was burned down, and his “previously good character” and clean criminal record as mitigating factors.
“I have no reason to believe you will ever commit an offence like this again,” he said.
Elijah’s family did not speak to the media when leaving court, but said the sentence was a “joke.”
During the four-day trial, the man admitted through his lawyer Seamus Rafferty that he driven his 4WD after and “chased” a person in a black hoodie who was riding a motorcycle that he believed had been stolen from his house the night before.
He admitted that his Nissan Navara hit the motorcycle at the Gribble Creek reserve in Kalgoorlie-Boulder just before 9am on 29 August 2016, causing multiple severe injuries that killed Elijah, aged 14, instantly.
He also admitted that the manner of his driving had been dangerous, and that he had got “too close” to the motorcycle, which he argued veered “unexpectedly” in front of his 4WD and “I’ve gone over the top of him.”
The man pleaded guilty at the start of the trial to dangerous driving occasioning death, and admitted through his lawyer all of the elements of that offence.
But he argued that his driving, while dangerous, was not criminally negligent. In order to prove the charge of manslaughter, the state prosecutor needed to prove the man had unlawfully killed Elijah, a Noongar boy, by driving in a manner that was criminally negligent.
News that the charge was manslaughter, not murder, prompted a riot outside the Kalgoorlie courthouse last year.
Elijah’s close family, who were watching from the public gallery from Perth, were separated from the courtroom by a glass security barrier which was erected after the jury retired to consider its verdict.
In his closing address on Thursday, the state prosecutor, David Davidson, argued that the man was driving too close to the low-powered motorbike to be anything other than criminally negligent.
“Too fast, too close, no room for Elijah to move, a significant size and power difference between the little motorbike and the two-tonne Navara on a bumpy bush track with a creek,” Davidson said.
Davidson said the man told police in a recorded interview, played during the trial, that his intention was “of pushing the rider to fall off his bike into the bush”.
The words the man used in the interview were: “I was hoping that he would take off into the bush and hopefully fall off there.”
Davidson said the man also knew the rider was not wearing a helmet, and knew the bike, which he had bought for about $500 for his 13-year-old son, had no mud guards.
“There’s your criminal negligence,” Davidson said.
He also said information about the accused man’s house being burned down after the fatal crash, and his family moving interstate, were “irrelevant”.
“It certainly wasn’t Elijah who was involved in the house burning down, or in relation to the family leaving,” he said. “There’s no evidence that his family was involved in that. It’s irrelevant to the trial.”
He also argued that evidence about the accused’s “good character”, and the fact that he referred to himself as a “zero hero”, meaning he had no demerit points on his licence, did not point to his innocence.
“In good character, there’s always a first time for a person to commit an offence,” he said.
The man told police Elijah was riding a bike on the left hand side of his Nissan Navara and expected he would keep to his left as they both went around the bend. Instead, he said, Elijah veered in front of him.
“I was not fishtailing, I was not out of control, but I was close to the motorbike in the car and when he veered into me I could not stop,” he said in his police interview. “I would say at that stage that wasn’t safe.”
He added: “I never thought that the Navara would outpower the motorbike. I thought the motorbike would out-power the Navara.”
The trial heard the Navara had a top speed of 150km/h, while the 70cc motorcycle had a top speed of between 50km/h and 60km/h.
An analysis of CCTV footage showing moments before the crash showed the Navara was travelling at an average speed of 67km/h in the 47.5 metres leading up to the crash, gaining at 5.6 metres a second on the motorcycle which was travelling at 46km/h.
Davidson measured out the distance with a tape measure, snapping his fingers to measure time.
“Five point six-five metres per second he is gaining on Elijah,” he said.
Davidson said the accused knew the capabilities of the bike, because “his boy or boys rode it”.
He also said the man was emotional, even angry, at the time, because he believed his bikes had been stolen.
“He mentions that he has his bike stolen … but that doesn’t excuse criminal negligence.”
Rafferty said the man admitted he was driving too close to Elijah on the motorcycle, and that he was driving dangerously.
“It was a spur of the moment decision … He said, ‘I just wanted my kid’s bike,’ ” he said.
Rafferty said it was not unlawful for the man to be driving on the Gribble Creek reserve, and not unlawful for him to be chasing Elijah.
He also said the state prosecutor had overstated the wet and bumpy conditions of the track, saying “it is not the treacherous track they have suggested” and that 67km/h was “not a high speed”, well below the 110km/h speed limit on the track.
Rafferty told the jury a suggestion by the state that the man had deliberately hit Elijah from behind, rather than driven over him when he veered in front of him, was implausible.
“To get your bike back you are not going to run over it,” he said. “That’s the last thing you are going to do. The whole purpose of the chase is to get the bike back in one piece. You are not going to run over it and put the bike in three pieces.
“It defies belief. It is utterly impossible, that a man who is watching the road in front of him, trying to get his bike back, an experienced driver, a safe driver … it’s utterly implausible.”