Magistrate `got it wrong'

Director of Public Prosecutions Tim Ellis will argue the magistrate hearing the case against him got it wrong.

Director of Public Prosecutions Tim Ellis will argue the magistrate hearing the case against him got it wrong.

THE state's top prosecutor will argue the magistrate hearing the case against him got it wrong when he handed down a guilty verdict because he misunderstood the defence case.

Director of Public Prosecutions Tim Ellis was last month found guilty of killing Natalia Pearn, 27, by negligent driving in March last year after magistrate Chris Webster found it was "utterly inconceivable' that a vehicle could have been driven for at least 1.5 kilometres in the same lane and round a bend while the driver was asleep.

However, Ellis will argue Mr Webster accepted a false premise about the defence case, "namely that the applicant (Ellis) was at all times utterly unconscious".

Documents lodged by solicitors E.R. Henry Wherrett and Benjamin at the Supreme Court in Hobart spell out the 29 grounds of appeal against the decision.

The appeal is listed for mention in the Supreme Court on September 1.

Ellis is due to appear in the Hobart Magistrates Court later this month for sentencing.

He faces a maximum penalty of one year jail and a $1300 fine.

The appeal documents also show Ellis will argue the magistrate erred by ignoring or not giving enough weight to:

•The evidence of sleep expert Dr Hugh Mestitz, who said it was "plausible" that Mr Ellis could steer with "minor adjustments" while half asleep.

•Ellis's sleeping generally, how much sleep he got on the night before the collision and his level of drowsiness in the week leading up to it.

•Police crash investigator Sergeant Rod Carrick's testimony that there was no evidence of braking or evasion before the collision.

During the five-day trial, defence lawyer Michael O'Farrell argued his client could have been half asleep, which would not be considered "conscious".

Ellis remains suspended on full pay.

A decision on his future in the role is unlikely to be made before the appeals process has concluded, which is expected to take months.

Under the Director of Public Prosecutions legislation, the DPP can be dismissed if found guilty of "misbehaviour".

The term is not defined in the legislation.

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