Dear Peter,
I am writing to you to offer my sincerest sympathies to you and your family. I know what you are going through, as I have suffered a gross travesty of justice in our legal system which occurred on Thursday the 3 rd of August 2006, but had it's beginnings in 2004.
At approximately 3.05am, at Shepparton East, on Sunday the 12th of September 2004, a Nissan Navara utility driven by Andrew John O'Dea failed to stop at a Stop sign and drove through an intersection colliding with a Holden Commodore being driven by Renee Short of Shepparton.
O'Dea had his schooling in Shepparton and moved to Melbourne to go to Uni. His father lives at Congupna, approximately 8 or 10kms from Shepparton. His passengers were from Melbourne , and the occupants of the Commodore were all from Shepparton. O'Dea was a local who had used that same route to go to his father's farm many times prior. He played football for Shepparton East years earlier and their clubrooms are about 1 kilometre away in the next road over from where the crash occurred. O'Dea was very familiar with that intersection.
From the Commodore, Renee and my son, James Haddow, were killed instantly and their three other passengers, Aaron Taylor, James's girlfriend Rebecca Carey and Daniel Cowan, received serious injuries, with Daniel suffering the worst injuries. Daniel was flown to the Alfred Hospital in Melbourne , and was not expected to survive. Daniel's injuries will prevent him from living a full, normal life ever again. O'Dea and his two passengers, girlfriend Kristina Ricketts and Darcy Moorcroft, all sustained minor injuries and were transported to the Goulburn Valley Base Hospital.
O'Dea was placed under arrest at the accident scene and was under constant police guard from approximately 3.30am. He was discharged from the hospital mid afternoon and taken back to the Shepparton police station where he was interviewed, charged with two counts of culpable driving and bailed to appear in the Shepparton Magistrates Court the next morning. At that court session he was further bailed to appear at a criminal mention in March 2005.
At the criminal mention, and the subsequent committal hearing in August 2005, full details of what transpired during the preceding day and the lead-up to the crash were heard. O'Dea was tested for blood alcohol content at 5.15am at the hospital. This reading, taken 2 hours & 10 minutes after the crash, was 0.079. In O'Dea's police record of interview he detailed the party & nightclubs he visited that night, he detailed the amount of alcoholic drinks he had consumed at the various venues and gave the time of his last drink. By using the time of his last drink in O'Dea's police statement, 1.30am, forensic doctor Morris O'Dell calculated his reading may have been as high as 0.122 at the time of the collision. O'Dea was a probationary driver and therefore was supposed to have a zero blood alcohol reading. On August 24 2005 , after hearing all the evidence, the Magistrate committed Andrew John O'Dea to stand trial in the Shepparton County Court in 2006 on two counts of culpable driving and three counts of negligently causing serious injury.
From July 24 to July 27 2006 , legal arguments took place in the Shepparton County Court before Judge Michael Kelly. Judge Kelly retired from the County Court as from 1 July 2004 but was brought out of retirement to relieve in this circuit. This legal argument sitting was testing of the evidence in relation to the police interview with O'Dea on the day of the accident. The prosecutor, Tom Lynch, argued that the interview should be included in the trial because it formed the basis of their case. The defence barrister, Ian Hill QC, argued that O'Dea's statement shouldn't be used. During the sittings over those four days, O'Dea's taped record of interview was played to all those in the court, and we all heard him detail how he had 3 stubbies of full-strength beer at a party between 10pm and midnight, a further 2 pots of full-strength beer at the Yahoobar between 12 & 1am and another 2 pots of full-strength beer at the Sherbourne hotel before he and his two passengers left around 2.30am. At the start of the taped interview, and several times during, we all heard the police interviewers read him his rights, asked him if he wanted to have a lawyer or family present and if he was OK to continue. Each time he said he was fine to continue and he declined to have someone present. To everyone's surprise, Judge Kelly ruled in favour of Mr. Hill, saying O'Dea would have been too tired and not known what he was saying when being interviewed. This came as a surprise as on the recorded interview O'Dea's voice sounded quite lucid and he gave quite detailed answers instead of 'Yes' and 'No' answers. The trial was adjourned to begin on the 31 st of July, but without O'Dea's statement, or any mention of anything in that statement. This meant that Dr. O'Dell's blood alcohol calculations could not be used in court and that he had to amend his original statement from saying O'Dea's reading was between 0.073 and 0.122 to now saying that the sample indicated the presence of alcohol and that it was a non-zero reading. This also meant that the jury could not be told that O'Dea was on a probationary licence, and therefore legally had to have a BAC of zero percent. This also prevented the Police informant, Senior Constable John Dettmann, from being called as a witness.
During the trial evidence was heard from five of O'Dea's friends, all of whom didn't seem to see or remember much about the night, and whose evidence all sounded well rehearsed and almost word for word the same as each other! Evidence was also heard from the two persons who were first on the scene and from several police witnesses. The evidence from the first two police on the scene was strong and compelling, each stating that O'Dea smelt of alcohol and had glazed eyes. One of the civilian witnesses who was first on the scene told of O'Dea trying to start his utility up to leave the accident scene prior to the police arriving, and being told to turn off the vehicle for fear of causing fire from the leaking petrol. The utility wasn't driveable anyway. When Mr. Hill was summing up he told the jury that a 'miniscule' amount of alcohol was found in O'Dea's system, knowing full well that the prosecution couldn't argue for fear of breaching Judge Kelly's ruling about O'Dea's statement. Mr. Hill also mislead the jury by mentioning that a 'miniscule' amount of alcohol would not put anyone over 0.05, again knowing very well that O'Dea's blood reading was much more than 'miniscule' and that he was on a probationary licence and therefore should have been zero, not 0.05. The prosecutor objected after the jury had left for the lunch adjournment, but Judge Kelly said he couldn't see anything wrong with Hill's statement and so he didn't pull Mr. Hill up on either of those points. I cannot understand why barristers are not required to be under oath. They are under no obligation whatsoever to tell the truth in court and can say anything in their closing statements and get away with it. Why is the defence the only party who can appeal a result? Why can't the prosecution appeal too?
Following the lunch-time adjournment, the jury left to deliberate at 3pm . The jury returned at 3.40pm and delivered a not guilty verdict on all of the five charges.
This verdict has outraged many people, not just in Shepparton, but across the whole country. Talk-back radio ran with it. No-one can understand how a probationary driver can spend a night partying and drinking alcohol, then get behind the wheel of a car and drive through a Stop sign killing two teenagers and seriously injuring three others, and get away with it. How can a Judge justify withholding vital information (O'Dea's statement) from the jury? This verdict is sending the wrong message to all Victorians ... it is virtually saying it is OK to drink and drive as long as you have a good lawyer. Andrew John O'Dea has gotten away with 'murder'. He has been given all his rights; the deceased and injured have had their rights taken away. He wasn't even put in the witness box at either the committal hearing or the final trial. Why is that? And why was the trial scheduled to be heard in the Shepparton County Court ... aren't the charges serious enough to warrant being held in the Supreme Court in Melbourne ? I mean to say, here's a guy who drank, drove, went through a Stop sign and killed two teenagers and seriously injured three other teenagers! He kills & injures five kids, and then a jury says 'you look like a good boy, be off on your way.' He has shown no remorse at all; in fact he even pulled faces at James's grand-father, from the dock, when he turned to look at him at one stage during the trial.
Just what DOES constitute 'negligent driving'? Apparently driving when one is fatigued doesn't! Apparently driving when one has been drinking doesn't! Apparently driving through a 'Stop' sign doesn't! What does???
What I find interesting is that Mr. Ian Hill QC is a person pretty high up in the Criminal Bar Association, well respected by his peers and commands a fee of around $8,000 per day. Another interesting point is that Judge Kelly is a 'Foundation and Life Member of the CBA'. This begs the question whether Judge Kelly was 'looking after' his fellow CBA team-mate when he made his ruling regarding O'Dea's statement pre-trial? Surely Judge Kelly would have seen that by disallowing O'Dea's interview the prosecution didn't have a hope in hell of succeeding in the case. If this isn't 'perverting the course of justice' I don't know what is. By the Judge being given the sole right to determine what evidence can, or cannot, be given to the jury, he has the power to contrive a result to suit his mood, or his bias. By eliminating O'Dea's statement, and therefore limiting Dr. O'Dell's evidence, Judge Kelly has ensured that the jury was not given all the key facts or evidence they need to ensure that justice is upheld. It seems to me that a Judge is a law unto himself, and is not accountable to anyone. Judge Kelly determined the end result of the trial even before it began, by his 'doctoring' of the evidence available to the jury. During a speech given by The Honourable Sir Daryl Dawson at the farewell function for Judge Kelly on Thursday 1 December 2005, he details a trial in the early 1970's where Kelly speaks to Sir Daryl and says "There are only two bits of evidence against him: his girlfriend who says that she saw him shoot the deceased and a cigarette packet with Lawless's fingerprint on it, said to have been found at the scene of the crime." "You get rid of the girl", said Kelly, "and I'll get rid of the fingerprint." To the uninformed, it sounds like the leopard hasn't changed his spots. "You control the witnesses and I'll get rid of the police statement of interview."
Since the accident I have trouble with sleeping. I identified James's body some 17 or 18 hours after he was killed, and I have recurring nightmares, waking up during the night because I keep seeing him lying in the morgue with blood coming out of his ears and nose and mouth. They didn't even clean him up before I saw him. I have a loss of interest in outside activities, rarely going out socialising. I rise early for work, and at the end of my work day I go home again and on weekends I try to keep myself busy and I tend to keep to myself. I avoid places where there are a lot of people. I spend a lot of my spare time walking around my farm or sitting on my verandah quietly thinking of James. I have only recently started going into James's old bedroom at my house. Since the accident I had not been able to bring myself to going in there, it is only now that my youngest son, Brendon, has moved in with me and he wanted to move into James's room to be close with him that I have had to try to be strong for Brendon and so I entered the room to help him move his things in there. It was a very hard thing for me to do.
The events of September 12 2004 changed my life forever. I lost my first-born son ... my mate, on that day. He was taken violently and I never even got a chance to say goodbye to him. As all parents & children do, James & I had our differences over the years, but we were getting on very well, I had a mate that I could talk to, listen to, offer advice and guidance to, and even share a beer with. James had a girlfriend, had his licence and a car. He was the drummer for a local band and only two weeks prior to his death had started his first full-time job. Things were starting to look good; James's future was looking rosy. James was only 19; he had his whole life in front of him. The accident robbed me of the chance to see him grow from a boy to a man. I never got to make a speech for him at his 21 st . I won't get to see him get married ... or to see him father his own children. I won't be able to share with him the good times and the bad times ... all this was taken from me. My mate was taken away from me. Andrew O'Dea's family gets to see him at Christmas, Easter, Mothers Day, Fathers Day, birthdays ... the lot. O'Dea gets to continue driving. He gets to go out partying with friends ... hopefully, for his sake and the sake of other road-users; he doesn't drink and drive again.
Our children are supposed to bury us ... not the other way around!!! My son was only 19, killed by a drink driver, and we had to bury him. I hope that doesn't happen to many other parents before the legal system does something about cases such as this. I have written to the Director of Public Prosecutions, the Department of Justice and the Law Institute to see if there was anything they can do about this case It's criminal that a drink-driver can get away with not so much as a slap on the wrist. I hoped the DPP or Justice Department would take this to the Court of Appeals on the basis the Judge erred in his determination regarding the evidence he omitted. I know that O'Dea cannot be tried again due to the current double jeopardy laws, but the law is wrong when a Judge can manipulate what the jury can and cannot be told in such an important case such as this. And when a Judge retires from the bench due to age, how can he be brought back to oversee important cases such as this? Judge Kelly raised eyebrows during both the trial and also the legal arguments sitting when it appeared to everyone in the court that he was nodding off to sleep. During the legal argument sitting Miss Ricketts was left standing in the dock, after giving evidence, for 25 seconds before Judge Kelly appeared to jolt upright and dismiss her. Justice should, and be seen to, be done. It hasn't in this case!!! Australia , and ordinary Australians, deserves something better than jury trials. We must rid ourselves of the romantic notion that the jury system guarantees a fair trial. How can it be a fair trial if the Judge deliberately hides vital evidence from the jury? Every Judge knows that by withholding certain evidence from a jury they can only give one decision ... the decision the Judge is leaning towards (in this instance, not-guilty). Everyone knows that had Judge Kelly not withdrawn Andrew O'Dea's statement from the jury that Andrew John O'Dea would be in jail right now, serving his penance for the crimes he actually committed. Several days after the trial one of the jury members apologised to the father of one of the injured. When told what the Judge had withheld from the jury, he broke down and said that had he and his fellow jurors known the details of O'Dea's statement outlining what he'd been drinking, the BAC reading and that O'Dea was a probationary driver and should have been zero, they would have unanimously found him guilty on all counts. This jury member is devastated that they let a criminal walk free and also cannot fathom how a Judge could come to the evidence ruling Judge Kelly did.
I have also written to Premier Bracks, Attorney General Rob Hulls, Leader of the Opposition Ted Baillieu and politicians Wendy Lovell & Jeannette Powell over the result of this trial. I haven't received a reply from Bracks or Powell as yet, but have from the others. I also wrote to the Chief Judge of the County Court with my concerns over Judge Kelly's conduct and am still waiting for their response. The parents of the other one killed, and the parents of the injured have written to these politicians too and have spoken with A Current Affair, Today Tonight, 3AW's Neil Mitchell and one has emailed Andrew Bolt of The Age. I am presently working on letters to Prime Minister Howard and Attorney-General Phillip Ruddock as well. I am hoping that by bringing this travesty to the attention of as many people as I can that I may finally get some closure on this matter and that we might get the Double Jeopardy laws changed. I would hate that any other family has to go through what we are going through at this stressful time.
Thank-you for your time.
Yours faithfully
Don Haddow
Katandra West Vic
