Tim Ellis, Tasmanian DPP, loses death by negligent driving appeal
Tasmania's top prosecutor has lost an appeal against his conviction for causing the death of a woman in a head-on crash due to negligent driving.
Tim Ellis, 59, was convicted in June over the death of Natalia Pearn who was killed in the accident on Tasmania's Midland Highway last year.
Rejecting the appeal in Hobart's Supreme Court, Justice David Harper said Magistrate Chris Webster was justified in finding Ellis guilty.
"I am of the opinion that this finding was inevitable and that each element of the charge was proven beyond reasonable doubt," he said.
Ellis's lawyers had put forward more than 20 grounds of appeal, including that Mr Webster had made errors.
Ellis maintained he was not awake when he drove in the wrong lane of the highway near Oatlands, killing the 27-year-old Launceston woman.
Giving his reasons for dismissing the appeal Justice Harper said there was no evidence to support Ellis's hypothesis that he fell asleep without any warning over a short period of time.
"It is inconsistent with driving for over half a kilometre (at least) in the wrong lane and around a sweeping bend," he said in his finding.
"Nor is there any evidence to support .... that the applicant was fighting and losing a battle with fatigue."
Justice Harper said witnesses accounts of Ellis's Mercedes travelling smoothly and in a very controlled manner were "incompatible with a driver who was asleep."
Justice Harper found Mr Webster came to what seemed to be the only conclusion - that Ellis was conscious up to, and including, the moment of impact.
"It is clear that that the applicant was mistaken about the position of his Mercedes on the highway; but that mistake was a consequence of his negligence."
Ellis was not in court to hear the decision and will be sentenced on December 23.
He faces a maximum penalty of a $1,300 fine and 12 months in prison.
He has been off work, on full pay, since the crash and it is unclear what the decision means for his ongoing employment.
The Director of Public Prosecutions can only be removed from office by the Governor if the person in the role becomes incapable of performing the duties of office, becomes bankrupt or is guilty of misbehaviour.
It is not known whether causing death by negligent driving fits the legal definition of misbehaviour.
Ellis has been ordered to pay costs and it is unclear if he will launch another appeal.
