Conway v The King - [2023] NSWCCA 40

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Conway v R [2023] NSWCCA 40
Hearing dates: 10 August 2022
Decision date: 10 March 2023
Before: Ward P at [1];
Davies J at [2];
Button J at [3]
Decision:
1. Leave to appeal against conviction granted.
2. Appeal dismissed.

Catchwords:
CRIME - appeals - appeal against conviction – offences arising from fatal head-on motor vehicle collision – primary offence manslaughter – judge alone trial – whether any conviction unreasonable or unable to be supported – brief discussion of correct approach to ground when trial conducted by judge alone – circumstantial case that applicant was driver at time of collision – whether reasonable alternative hypothesis that someone else was the driver – some evidence to support proposition that two persons were in the vehicle at the time of collision – ancillary ground impugning verdict of guilty on count that required applicant to have taken the motor vehicle without consent – detailed analysis of evidence – appeal dismissed

Legislation Cited:
Criminal Procedure Act 1986 (NSW) s 166

Cases Cited:
Dansie v The Queen [2022] HCA 25; (2022) 403 ALR 21
Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
R v Conway [2020] NSWDC 816
The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35

Category: Principal judgment
Parties: Sam Conway (Applicant)
Rex (Respondent)
Representation:
Counsel:
K Averre (Applicant)
C Curtis (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2019/212111
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Citation:

R v Conway [2020] NSWDC 816

Date of Decision:

24 November 2020

Before:

Norrish KC DCJ

File Number(s):

2019/212111

JUDGMENT

WARD P: I agree with Button J. I have carefully considered the sufficiency and quality of the evidence in the trial and am satisfied that it was open to the trial judge to be satisfied beyond reasonable doubt as to the guilt of the applicant. The evidence does not persuade me that the trial judge ought to have entertained a reasonable doubt as to the applicant’s guilt of the respective offences.
DAVIES J: After a consideration of all of the evidence in this matter, I am satisfied that it was open to the judge to find the applicant guilty of all of the offences charged. I otherwise agree with the reasons of Button J.
BUTTON J:

Background

This is an application for leave to appeal against conviction of a number of offences that led to Mr Sam Conway (the applicant) being sentenced to a significant term of imprisonment. All of the offences arose from, or were connected to, a fatal motor vehicle accident for which the applicant was found to be liable as a grossly negligent driver.

The only ground of appeal is that the convictions are unreasonable or unable to be supported.
On 3 November 2020, at the commencement of a trial by judge alone, the applicant was arraigned before Judge Norrish QC in the District Court sitting at the Downing Centre on an indictment containing a number of counts. The applicant pleaded not guilty to all of them, unless otherwise noted.
Count one alleged that, on 15 January 2019, the applicant had committed the offence of manslaughter. The applicant was found guilty and convicted of this offence.
Count two alleged aggravated dangerous driving occasioning death, and was in the alternative to count one. No verdict was taken on this count, and it need not be discussed further.
Count three alleged that, on the same date, the applicant had failed to stop and assist after a vehicle impact occasioning death. A verdict of guilty of this offence was also returned, and a conviction was recorded.
Count four alleged that, on the same date, the applicant had taken and driven a conveyance without the consent of the owner. The applicant was found guilty and convicted of this count as well.
Finally, count five was in the alternative to count four. It alleged that, on the same date, the applicant had been carried in a conveyance taken without the consent of the owner, knowing about that state of affairs. The applicant pleaded guilty to this offence. Again, no verdict was taken on it. It will need to be discussed, very briefly, at the conclusion of this judgment.
Separately, once the trial was concluded, a wholly summary offence of driving whilst disqualified was placed before his Honour on a certificate pursuant to s 166 of the Criminal Procedure Act 1986 (NSW). The trial judge found the applicant guilty of that offence as well, and imposed sentence for it.

The positions of the parties at trial

In a nutshell, the Crown case at trial was that, at 4:35 AM on Tuesday 15 January 2019, the applicant was the driver of a Land Rover that had been taken earlier that evening without the consent of its owner. He was the only occupant. The Land Rover travelled for some distance in a generally northerly direction at high speed and on the wrong side of Wyong Road, in Tumbi Umbi on the Central Coast of New South Wales. Its journey came to a halt when it collided head on with a Kia motor vehicle that was travelling generally southerly, with the result that the driver of that vehicle, Mr Darren Hill, was tragically killed.
The Crown case was that the applicant got out of the driver’s side door, failed to render assistance to the deceased, and fled the scene.
The Crown case for all offences pertaining to the fatal collision was circumstantial, and relied upon a large number of pieces of evidence to establish the proposition that the applicant was indeed in the driver’s seat of the Land Rover at the crucial time.
The defence case was that the trial judge, as tribunal of fact, would experience a reasonable doubt about that proposition on all of the evidence.
Separately from that controversy, the applicant by way of his plea of guilty to count five conceded that, at some stage of the evening, he had been a passenger in the Land Rover, knowing it to have been taken without the consent of the owner. He denied, however, that he was the person who had actually taken it, and, in submitting that there was a reasonable doubt about the proposition, impugned the credibility of witnesses who were found by the trial judge to have supported, at least indirectly, the proposition that he had done so.

Legal principles

The legal principles to be applied in an appeal of this kind were not controversial between the parties at the hearing, and do not require elaborate re-statement here.
The fundamental question is whether the verdicts of guilty were open to the trial judge as the tribunal of fact: M v The Queen (1994) 181 CLR 487; [1994] HCA 63; Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29.
In answering that question, this Court is required to bring its own analysis to the question of whether it is satisfied beyond reasonable doubt of the guilt of the applicant of any count of which he was convicted.
It is not a matter of analysing the reasons for verdict provided by the trial judge, and seeing whether or not they demonstrate error. Rather, it is a matter of bringing one’s own analysis of the evidence to the question: Dansie v The Queen [2022] HCA 25; (2022) 403 ALR 21.
In reviewing verdicts of a jury by way of this ground of appeal, members of this Court should pay due deference to the time-honoured and constitutional role of the jury as the tribunal of fact with regard to serious criminal matters. The Court should also give weight to the ability of a jury to make assessments based upon demeanour in the context of a trial that is conducted orally, as opposed to merely reading appeal papers in chambers: see The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65]. Clearly enough, the former of those considerations does not apply here, but the latter one has work to do.

Sketch of chronology

Before I turn to discuss the submissions for the applicant, I should first provide a brief chronology of matters that were not in dispute at trial or on appeal.
Sometime after 10:30 PM (and in all likelihood after 11 PM) on the evening of 14 January 2019, a handbag was stolen from a home in the suburb of Terrigal on the Central Coast. Contained in that handbag was an electronic fob key that permitted access to and operation of the Land Rover. The fob was then used to take that vehicle without consent.
On the evening in question, the applicant had been in the company of a number of persons who were involved in taking the Land Rover. They included Ms Amanda Haley, and Mr Ryan Corby. Those two persons, the applicant, and others, were all burdened with problems with prohibited drugs.
It was established, however, that none of those other persons could have been in the Land Rover at the time of the collision. That is because CCTV and timed receipts demonstrated conclusively that they were dishonestly using credit cards from the stolen handbag at other locations at the time.
Commencing at about 3:20 AM, a vehicle that one can readily infer was the Land Rover was seen to be driven on a number of occasions in the general area around the collision in a very dangerous manner. The first witness to observe that was Mr Johnson, who saw it being driven at that stage at very high speed. I shall refer to the other occasions a little later.
The applicant certainly drove the Land Rover in the early hours of the morning in question, and generally at the relevant location. That was established by way of undisputed evidence that he was in the driver’s seat of the Land Rover at 3:44 AM, and purchased some items at the McDonald’s fast food restaurant drive-through at Bateau Bay. CCTV footage showed him to be mopping his brow at that stage, and dressed in a black hoodie. That location is a matter of kilometres from the scene of the collision, which, it will be recalled, occurred at approximately 4:35 AM.
In other words, there could be no dispute that the applicant was indeed driving the Land Rover on the same evening that it had been taken, and about 45 minutes before the collision.
Once the collision occurred, a number of persons who had been driving in both directions stopped and sought to render assistance. Their evidence as to what they saw before and after the collision was important in the trial.
The applicant engaged in two formal recorded interviews with the police. The first was conducted on 20 January 2019. In it, he denied ever having been in the Land Rover at all, and indeed ever having been in a motor vehicle accident. That was unquestionably a lie, even on his own case. He claimed that the driver was in fact a person whom he called “RC” – undoubtedly, a reference to Mr Ryan Corby. In light of the CCTV and receipt evidence, that was unquestionably a further lie.
In the second recorded interview, conducted on 24 April 2019, the applicant completely changed his position. He accepted that he had been in the vehicle at the time of the collision. But his position was that he had been the passenger; that he was being oppressed by persons who were about to commit an armed robbery; that the driver, whom he would not name directly, was in fact wearing a balaclava and gloves preparatory to the armed robbery; that at the time of the collision the applicant was physically positioned halfway between the front and back seats of the Land Rover; that the force of the collision pushed him onto the lap of the driver; and that, from there, the applicant crawled out of the driver’s door and departed the scene. Again, he referred elliptically to RC.
In other words, in his second recorded interview (which was itself disavowed by his counsel at trial), the applicant had conceded that he had departed the Land Rover after the collision from the door adjacent to the driver’s seat.

The case for the applicant on appeal

Counsel for the applicant did not deny that there was a significant body of evidence that suggested that he was indeed the driver. I shall analyse that evidence later in this judgment. He submitted, however, that there were other pieces of evidence that would cause members of this Court to experience a reasonable doubt about the proposition.
The first was that, at about 3:55 AM (that is, some minutes after the attendance of the applicant driving the Land Rover at the McDonald’s), Mr Adam Smith saw a vehicle that one would readily infer was the Land Rover drive past him. Both vehicles were traveling in a generally southerly direction on Central Coast Highway at Long Jetty, at a point about 10 kilometres from the collision. Mr Smith believed that he saw two persons in the Land Rover, a driver and a person in the front passenger seat.
That observation of Mr Smith was relied upon to support the proposition that there could indeed have been two people in the Land Rover at the time of the collision--which was, after all, only 40 minutes later—thereby giving rise to the reasonable possibility that the applicant was indeed a passenger only at that stage.
The second was that Mr Alexandre Gariano, a civilian witness who had been driving south (that is, in the same direction as the Kia) on the same road as the collision, gave evidence that, when he came upon the collision very shortly after it occurred, he saw two persons alight from the Land Rover and decamp, not one. Again, in combination with the evidence of Mr Smith, that evidence was relied upon to assert that there was a reasonable doubt about whether two persons had been in the Land Rover at the time of the collision, thereby giving rise to a reasonable possibility that the applicant had been the passenger, not the driver.
A third and less significant point was that, when at the McDonald’s drive-through, about 45 minutes before the collision, the applicant ordered two drinks, not one. That raised the suggestion that, although no other person was visible in the Land Rover in the CCTV from the drive-through, even so there might have been another person there, or, perhaps, the applicant was intending to meet another person shortly thereafter. The point was also made that there would have been ample time between the attendance at the McDonald’s and the collision for the applicant to pick up another person who may have become the driver, bearing in mind the short distance between the two locations.
A fourth and less significant point was that Mr Kenneth Tahitahi, who approached the collision from the north (in other words, from behind the Kia driven by the deceased) gave evidence that he saw the driver’s door of the Land Rover open after the collision, and possibly another door. In cross-examination, he agreed that he had told the police that there had been another door open.
There were other points made on behalf of the applicant, of course, but in a sense, they were more in answer to points of the Crown, rather than substantive “affirmative” points being made on his behalf. For that reason, I shall deal with those criticisms of the Crown case later in my analysis.
I shall now analyse the evidence and submissions about the major points made for the applicant in more detail.

Mr Smith

The evidence of Mr Smith was that, at 3:55 AM, he was travelling home alone from a night shift in his work vehicle. He was driving in a southbound direction on a road in the general vicinity of the collision. He observed two sets of headlights coming towards him, one of the sets travelling directly at him on the wrong side of the road.
He took a number of steps, including flashing his hazard lights, in order to alert the oncoming driver. He brought his own vehicle to a halt. Because there was a median strip, he was concerned that the oncoming driver would not be able to manoeuvre the vehicle back to its correct side of the road. The oncoming vehicle slowed down, enough for it to “go around” the vehicle of Mr Smith, whose vehicle was stopped in the middle of the southbound lane. The oncoming vehicle “squeezed” against the gutter as it travelled north on the wrong side of the road. In other words, it passed Mr Smith on the passenger side of his vehicle, as he sat in its driver’s seat.
The two vehicles were directly underneath a streetlight. He was “able to sort of glance into the car”. He saw “basically cropped haired driver and possibly a passenger in a pink shirt”. That was all he could remember, apart from the fact that the vehicle was a white late model Land Rover.
The Land Rover did have tinted rear windows, and the witness “sort of thought that there may have been people in the back”, but “it could have just been headrests”.
At some stage after the incident, the witness spoke to his wife. Later, he saw an entry on Facebook, and contacted the police.
In cross-examination, Mr Smith marked a map. He confirmed that he had been heading south on The Entrance Road. The Land Rover was heading north, and when it passed the vehicle of Mr Smith, his passenger door was next to the passenger door of the Land Rover. The time was somewhere between 3:55 AM and 4 AM.
When it was put to him by defence counsel that he had contacted police because he had heard something about the collision that he believed was not correct, he did not adopt the proposition. He engaged in a recorded interview with police on 27 January 2019, that being 12 days after he made his observations. He agreed that he told the police that he had felt that reports of a single person fleeing the collision were “probably not right”.
Mr Smith agreed that he had initially described the passenger as “looking quite young”. He accepted that he had told the police that he had had a “perfect view”. He reiterated that both vehicles were under a streetlight, and that the Land Rover was travelling at less than 40 km/h. He agreed that, although he had originally spoken of the passenger definitely wearing a pink shirt, in truth what he had seen was “a section of pink material on the passenger side of the vehicle”. He agreed that he could not be sure whether there were people in the back of the Land Rover.
As I have said, counsel for the applicant placed significant weight on the observations of Mr Smith, both on their own and in combination with the other factors relied upon. The point was made that his vehicle was stationary, the Land Rover was travelling at relatively low speed, and that the observation was made only 35 minutes before the collision. It was also said that the applicant is a shorter man of about 173 cm in height, and thereby fitted comfortably with the description of the passenger.
The Crown submitted that Mr Smith was honest, but mistaken. It was emphasised that, in oral evidence, he did not express the view that his view had been perfect. Attention was also drawn to his wrongful impression (on either case) that there may have been people in the back of the car. Finally, the point was made that, because of the unusual positioning of the two vehicles, Mr Smith had to look all the way from the driver’s seat of his car, through his passenger side window, into the front cabin of the Land Rover.
In my opinion, this evidence has some weight. Certainly, it is not unimportant that, a little over half an hour before the collision, a witness believed that he had seen two persons in what was undoubtedly the vehicle in question.
Even so, the evidence has obvious limitations: the witness was driving home after a period of work; the incident originally unfolded in a very frightening and no doubt extremely distracting way; the witness had no reason at that time to take particular note of how many persons were in the cabin of the Land Rover; the observation was unexpected and unprepared for; the observation was made at night (accepting the presence of the streetlight); the witness changed his position from whether the pink material was an item of clothing or merely a part thereof; the witness did not give a formal statement to police until 12 days after the observation; the witness was “looking through” the width of his own vehicle; and finally, even accepting that his vehicle was entirely stationary and the Land Rover was travelling at 40 km/h or less, even so a vehicle travelling at that speed will cover over 11 metres in one second.

As I have said, the evidence of Mr Smith is important. But even on its own terms, before one compares it to the inculpatory evidence in this trial, it was hardly overwhelmingly exculpatory.

Mr Gariano

The second piece of evidence relied upon by the applicant was the observations of Mr Gariano. Early on the morning of 15 January 2019, he was alone in a work Hi-ace van. He was travelling down the hill towards a roundabout on Wyong Road when he saw a car coming from the opposite direction collide with another car (in other words, he was travelling in a southerly direction, that being behind the Kia and from the opposite direction from the Land Rover). He went through a roundabout and brought the van to a halt. He did not actually see the collision, but, in light of the position of the two vehicles at rest, he had assumed that one car had lost control, and gone over the median strip to the wrong side of the road.
Both vehicles were on his “left-hand side of the road”, in other words, its eastern side.
He estimated that the time was “probably” 3:20 AM. He stopped his vehicle about 15 m away from the vehicle of the deceased. He stayed in his vehicle for a while, but then alighted.
He gave evidence that “when I came around the corner, I saw the – the cars that – the doors of the white vehicle. The [Land] Rover was already opened, and I saw a glimpse of two people running”. He observed that both the front passenger door and the driver’s door were open. They were already open when he observed them. He saw two people running but “pretty much just saw them from behind”. They were running away fairly quickly, in a direction away from him. They started about a metre or two apart, but as they ran they diverged. Mr Gariano “thought I saw a – like a black singlet”. As for the other person, he could not really recall, although he believed that both persons were wearing long pants. The person who was not wearing a black singlet wore a “light colour top”, but the witness could remember nothing of his pants.
Mr Gariano marked a diagram in which he showed the path of the two persons whom he had seen running away.
At the time when the witness arrived at the scene, there were already other civilians and vehicles present. He was at the scene for about 10 or 15 minutes, during which time no other persons arrived. He departed eventually because he was late for work. When he departed, he went all the way around the roundabout and departed in the opposite direction; in other words, back to the north.
In cross-examination, Mr Gariano agreed that when he made his observations his vehicle had been brought to a stop. The Kia of the deceased was closer to the witness than the Land Rover. The witness did not speak to police before departing. He recalled going to a police station and making a statement within a day or so of his observations. In fact, he did not make a formal statement until 27 January 2019, that being 12 days after his observations.
He agreed that, in that statement, he had said that one fleeing man was wearing a black singlet, but the other was not wearing a shirt at all.
He agreed with the obvious proposition that his memory would have been better on the date of his statement, 27 January 2019, than it was on the day he gave evidence, 10 November 2020. He neither agreed nor disagreed with the proposition that the man whom he had described as wearing a black singlet was actually wearing a “black top that had sleeves”. He also confirmed that the man wearing black also had long pants on, but had made no observations of the other man with no shirt as to leg coverings.
Finally, Mr Gariano agreed that “the person who you saw wearing black, actually came from the passenger side” of the Land Rover.
Again, the thesis of the Crown was that Mr Gariano was honest but mistaken, and it pointed to many other errors that he had made to support the proposition.
In my opinion, this evidence is not insignificant. And like all potentially exculpatory evidence, it needs to be considered in the context of all other such material, and all criticisms of the Crown case. Even so, it has its obvious limitations, as follows.
The observations were made during hours of darkness. The scene was entirely unexpected. It had its traumatic aspects, in that Mr Gariano came upon a head-on collision in front of him that featured one car on completely the wrong side of the road and that proved to be fatal. He was confused in his evidence as to whether he had actually seen the collision, or came upon it after it had occurred, and made assumptions about its mechanisms. He was wrong about the time by about an hour. In terms of seeing both the driver’s door and the front passenger door having been open, that is not really consistent with the explanation (which, I interpolate, borders on the absurd) given in the second recorded interview of the applicant about how he came to alight through the driver’s door of the Land Rover despite, according to him, not having been the driver. The witness spoke of seeing “a glimpse” of two people running. When he made the observations, he was still in his vehicle. The two persons were not running directly towards him. In fact, at trial, according to propositions put for the applicant, it was his case that he had been wearing a black sleeved top, not a black singlet, contrary to the description given by Mr Gariano. He was undoubtedly incorrect in believing that he had seen no other persons arrive at the scene for the 15 minutes whilst he was there. Finally, a formal statement about all this was not given to the police until many days afterwards.
To repeat: the evidence is not insignificant. But, again, it is hardly powerfully exculpatory, and in the scheme of things, the possibility of honest human error in a traumatic, suddenly developing setting must be reflected upon carefully.

Other points raised for the applicant

The third affirmative point made for the applicant was that, when he attended the McDonald’s drive-through, he undoubtedly ordered two drinks. That suggested that either there was another person in the vehicle then, but unable to be seen on CCTV, or that the applicant was intending to see another person shortly after leaving McDonald’s. And the point was made that there was ample time for him to do so, in that the collision did not occur until about 45 minutes later.
Yet again, this point is not insignificant, but yet again it has its drawbacks, as follows.
In fact, the DNA of the applicant was found on both of the straws associated with the drinks from the fast-food restaurant. That is an odd result if there was one drink purchased for each occupant of the vehicle, whether at the time or later. Furthermore, the CCTV shows the applicant wiping himself with a towel, suggesting that he was hot and sweating, and perhaps eager to consume two drinks. It is also to be recalled that these events occurred in the middle of summer on the east coast of Australia, albeit in the early hours. All of that, in particular the DNA evidence, supports the reflection that he may well have ordered two drinks for himself. Nor is it to be forgotten that the presence of the applicant in the driver’s seat at the drive-through McDonald’s is itself significant evidence that he may have remained in the driver seat 45 minutes later, when the collision occurred.
Finally, the applicant relied upon the evidence of Mr Tahitahi that “possibly” another door of the Land Rover had been open when the witness came upon the scene. To be weighed against that is the simple fact that Mr Tahitahi did not give evidence of having seen any persons alight from the Land Rover.
In summary then, all of these affirmative points for the applicant are important, especially when seen in combination with each other and all of the other criticisms to be made of the Crown case, and bearing firmly in mind the criminal onus and standard of proof. But they are hardly conclusively exculpatory evidence, especially bearing in mind the notorious phenomenon whereby eyewitnesses in stressful, unexpected, and quickly developing situations can make entirely sincere and honest mistakes in observation and memory.
And in any event, in my respectful opinion, these points made by the applicant are simply “swamped” by the strength of the Crown case demonstrating the proposition to the criminal standard that he was indeed the driver at the time of the collision. It is convenient now to summarise that case, along with the criticisms made of it.

Crown case in a nutshell

The accused did not deny that he was in the Land Rover at the time of the collision. The issue at trial was simply whether he was the passenger or the driver.
As I have shown, the accused was undoubtedly the driver 45 minutes before the collision occurred. And when he was undoubtedly the driver at the McDonald’s, that was in close geographical proximity to the collision. In other words, the applicant was connected to being the driver at the time of the collision by both time and space.
As the evidence of Mr Smith shows, the Land Rover was being driven very erratically and dangerously well before the collision. Indeed, that was done in the same way on both occasions: by driving on completely the wrong side of the road.
Furthermore, at 3:20 or 3:30 AM – that is, before the attendance of the applicant in the Land Rover at the McDonald’s – Mr Ben Johnson saw a white Land Rover being driven at high speed in the same vicinity. And another person, after the observations of Mr Smith and before the collision, saw the same vehicle being driven on the wrong side of the road, as follows.
Detective Senior Constable Ian Kay spotted the Land Rover travelling at high speed on the wrong side of the road at around 4:05 AM.
In short: the Crown case was that there was a highly unusual course of driving of the one vehicle adopted over a somewhat extended period that strongly supports the proposition that at all times it was being adopted by the one driver.
As for the submission of counsel for the applicant that one might expect different persons to drive stolen cars erratically as a shared way of driving, I respectfully think that counterpoint has little weight: surely some people drive stolen vehicles very carefully and inconspicuously, in order to avoid drawing the attention of the police to themselves. Furthermore, driving on the wrong side of the road is so patently dangerous (including to oneself) that one might regard it as having a compelling continuity to it, if adopted over a period of time and at disparate locations.
Turning now to the collision, Mr Tony Maiuu and Ms Scott saw only one person alight from the Land Rover. In both cases, that person was seen to alight from the driver’s door.
In the case of Ms Scott, she gave a general description of the fleeing person that fitted quite well the applicant as he appeared then. Ms Scott also noticed that the man whom she observed was “glistening” and “sweaty”. That fitted generally, of course, with the appearance of the applicant at the McDonald’s drive-through.
It is true that Mr Maiuu was focused on pulling over safely; was concerned about the occupants of the Kia; accepted that everything happened quickly; and that things were dark at the time. The same general criticisms can be made of the evidence of Ms Scott. I also accept that both of those witnesses approached the collision from the side away from the passenger side of the Land Rover, in light of its movement on the road after the collision.
Even so, in combination with other evidence, the evidence of Mr Maiuu and Ms Scott is important.
So is, albeit to a lesser degree, CCTV evidence that seemed to show only one figure departing on foot from the scene of the collision. Again, criticisms can be made of its quality, and field of vision, but it plays its part in building the circumstantial case against the applicant of there having been a single occupant of the Land Rover at the time of the collision.
In similar vein, a police constable gave evidence of seeing only one set of footprints moving away from the collision site towards bushland. It is true that, in evidence, he spoke of having seen “at least” one set of footprints, and that by way of time and interference, the crime scene had been adulterated. Even so, the fact is that only one set of footprints was able to be identified moving away from the collision site, thereby supporting, albeit to a small degree, the proposition that there had been only one fugitive.
Finally on the question of the aftermath of the collision, as I have said, the evidence of these two witnesses, along with that of Mr Tahitahi, powerfully contradicts the proposition of Mr Gariano that he was at the scene alone for an extended period, thereby undermining his reliability quite significantly.
Turning now to evidence about the interior of the Land Rover, the DNA of the applicant was found on the driver’s seatbelt and driver seat. That in itself was of course neutral, to the extent that the applicant had accepted that he had occupied the driver seat when he attended the McDonald’s. So was the state of the front passenger’s seat, which was tested for DNA, but returned no interpretable result. Furthermore, the applicant pointed to the fact that his DNA was not affirmatively found on the driver’s airbag, even though the Crown thesis was that he was shirtless at the time of the collision.
In response, the Crown submitted that there was evidence from the applicant himself that he had tried to “clean up” the scene with a piece of material by wiping the area around the driver’s seat. That could readily explain, it was said, the absence of his DNA on the driver’s airbag, quite apart from the well-known and not well understood variables in the ways and circumstances in which individuals will deposit their DNA on items.
The Crown relied on other aspects of the interior of the Land Rover. It was said that papers in the footwell of the passenger seat did not have the appearance of having been crumpled by feet or shoes, thereby suggesting there had not been a passenger. But I must say I regard this point as almost neutral, and put it to one side.
In a similar vein, the fact that a drink container was discarded in the same location is, in my respectful opinion, neither here nor there as to whether anyone was sitting there.
Having said that, a photo shows sunglasses on the passenger seat after the collision that, even making due allowance for disruption of the cabin from the force of the head-on, suggest to a degree the natural way in which a driver would place sunglasses to their left on the closer portion of the passenger seat – but that option is only available, of course, if the passenger seat is unoccupied. And those sunglasses bore the DNA of the applicant.
Turning now to review in more detail what the applicant had said and not said with regard to the collision, I regard this topic as significant evidence indeed.
At first, the applicant identified an alternative driver, albeit elliptically. That identification could be proven to be completely false. His lie in that regard has obvious inculpatory force. Contrary to the submission of the applicant at trial and implicitly on the appeal, in determining whether it has been proven beyond reasonable doubt that the applicant was the driver at the time of the collision, I regard it as very important that he indirectly nominated an alternative driver, and that nomination could be proven conclusively to be false.
Thereafter, the applicant accepted that, after the collision, he had wiped down the car with the pink towel found within it. In my opinion, his explanation that he felt compelled to do that on behalf of the true unnamed perpetrator is of negligible probative value.
In the same interview, as I have said, the applicant accepted that he had indeed alighted through the driver’s doorway. The explanation for how that came to happen physically need not be repeated in detail – suffice to say respectfully that it borders on the preposterous and smacks of a desperate response to the developing police investigation.
Although defence counsel at trial submitted that all that the applicant had said was nonsense and should be put to one side, I think that what he had to say is significant, and can assist the Crown case quite powerfully. In particular, to my mind the admission that he had departed from the driver’s doorway immediately after the collision, and the explanation proffered for how it was that he, a purported passenger, had come to do so, can play a significant role in determining where the truth lies, to the criminal standard.
Finally, it is significant that there is no evidence whatsoever – from the applicant or anybody else – that posits a particular individual as a reasonably possible alternative driver. To say that is not to reverse the onus of proof, nor to impugn the right to silence of an accused person at trial. It is simply to state the objective reality that, in one’s assessment of the evidence on appeal, there is simply no evidence whereby one can reflect upon any particular alternative individual as being the possible driver, let alone any evidence that suggests such a thesis as a reasonable possibility.

Conclusion

In my respectful opinion, reflecting on the circumstantial Crown case as a whole, as opposed of course to reflecting on particular pieces of evidence in isolation; taking care to bring one’s own assessment to the evidence, rather than parsing the reasons for verdict of the learned trial judge; giving due weight to the points made by counsel for the applicant on appeal, both affirmative and as criticisms of Crown propositions; and bearing carefully in mind the onus and standard of proof, the Crown case that the applicant was indeed the person who was driving the Land Rover at the time of the collision is very persuasive indeed.
To summarise my thinking, I say that because: the applicant was undoubtedly driving the vehicle about 45 minutes before the collision; he had told a proven lie that powerfully suggested consciousness of guilt; the way in which the vehicle was driven over an extended period strongly suggested a continuing course of conduct by one individual; the applicant had wiped down the vehicle, and his explanation of having done so to protect others was unpersuasive; there was no evidence or even thesis as to why, if another person had entered the vehicle after its presence at the McDonald’s and before the collision, the driver and passenger would have swapped seats; two witnesses saw only one person exit the vehicle after the collision; and, finally and perhaps most importantly, the applicant himself admitted that he had left the vehicle through the driver’s doorway. Although there is some countervailing evidence, in my opinion it is simply overwhelmed by the force of those factors.
Bearing all of that in mind, I consider that it was well open to the trial judge as the tribunal of fact to return a verdict of guilty, even reflecting carefully upon the evidence of Mr Smith and Mr Gariano. To express that another way: I am also satisfied beyond reasonable doubt personally about the guilt of the applicant, on all of the evidence placed before us in the appeal.
For that reason, I would not uphold any ground that impugns a conviction founded upon the applicant having been the driver at the crucial time. That means that I would dismiss the appeal against conviction regarding the offences founded upon him being the driver at the time of the fatal collision.

An ancillary aspect

Counsel for the applicant made a further discrete attack upon the reasonableness of the verdict of guilty on count four. It was dealt with extremely briefly on the appeal, and, in written submissions, counsel for the applicant described the challenge to the evidence said to underpin it as being “of little moment” (AWS page 5 paragraph 24). It was also accepted that the maximum penalties for taking a motor vehicle without the consent of its owner and knowingly being a passenger in such a vehicle are identical, with the result that any substituted verdict could hardly be expected to have an effect on the overall sentence imposed. For those reasons, the question can be dealt with very concisely, as follows.

It is to be recalled that the applicant pleaded guilty to having knowingly been a passenger in a car taken without the consent of its owner. But he disputed that it was he who had actually taken the Land Rover in the first place. That was the basis upon which he pleaded not guilty to count four, but guilty to its alternative.
Counsel for the applicant submitted that the proposition that it was the applicant himself who took the car from the home of its owner had the following attribute. It was based to some degree on the evidence of two persons, Mr Corby and Ms Haley. The pair, however, regrettably had problems with prohibited drugs, were criminals themselves, and may have had a reason to inculpate falsely the applicant (whether to protect themselves, or some associate). Both were the subject of a grant of leave to be cross-examined by the Crown prosecutor, and both gave evidence from prison. Mr Corby gave the bulk of his evidence pursuant to a protective certificate. They were, by any reasonable measure, simply unreliable witnesses.
He submitted that the conviction for count four should be quashed; a substituted verdict of guilty of the alternative count should be entered (based on the plea of guilty of his client, apart from anything else); and that this Court would thereafter need to consider resentence as a result.
But in my opinion, this ground can be readily rejected, based upon the fact that, in assessing the evidence, deference should be given to the findings about demeanour that the trial judge made about Ms Haley and Mr Corby.
The trial judge found that both witnesses were in all likelihood “bending” the truth in the evidence. But the finding was that they were doing so in favour of the applicant, not against him. It is noteworthy that at [185] of the reasons for verdict, his Honour spoke of both of them as being “at their least impressive when they were trying not to implicate the accused”.
In other words, the analysis of the trial judge constituted a subtle synthesis of accepting as true certain things that these witnesses had said about the circumstances of the vehicle having been taken, but rejecting other things as deliberately false, and, on the basis of that assessment – combined with the undeniable fact that, later that evening, the applicant was certainly driving the vehicle – coming to the view that it was indeed he who took the Land Rover.
In my opinion, that nuanced approach was well open; it was based to some degree on assessments of demeanour; those assessments should be given weight; and, in the circumstances, I do not believe that this verdict is unreasonable or unable to be supported either.
In short, I would not uphold this ground either. That means that any resentence founded upon a substituted verdict on this count need not be considered.

Proposed orders

In my opinion, leave should be granted, not only because of the length of the sentence imposed, but also because of the appropriateness of the reasonableness of the verdicts of guilty being analysed closely. For those reasons, I propose the following orders:

Leave to appeal against conviction granted.

Appeal dismissed.

**********

Decision last updated: 10 March 2023

Medium Neutral Citation:	Conway v R [2023] NSWCCA 40
Hearing dates:	10 August 2022
Decision date:	10 March 2023
Before:	Ward P at [1]; Davies J at [2]; Button J at [3]
Decision:	1. Leave to appeal against conviction granted. 2. Appeal dismissed.
Catchwords:	CRIME - appeals - appeal against conviction – offences arising from fatal head-on motor vehicle collision – primary offence manslaughter – judge alone trial – whether any conviction unreasonable or unable to be supported – brief discussion of correct approach to ground when trial conducted by judge alone – circumstantial case that applicant was driver at time of collision – whether reasonable alternative hypothesis that someone else was the driver – some evidence to support proposition that two persons were in the vehicle at the time of collision – ancillary ground impugning verdict of guilty on count that required applicant to have taken the motor vehicle without consent – detailed analysis of evidence – appeal dismissed
Legislation Cited:	Criminal Procedure Act 1986 (NSW) s 166
Cases Cited:	Dansie v The Queen [2022] HCA 25; (2022) 403 ALR 21 Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 M v The Queen (1994) 181 CLR 487; [1994] HCA 63 R v Conway [2020] NSWDC 816 The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
Category:	Principal judgment
Parties:	Sam Conway (Applicant) Rex (Respondent)
Representation:	Counsel: K Averre (Applicant) C Curtis (Respondent) Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (NSW) (Respondent)
File Number(s):	2019/212111
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Citation: R v Conway [2020] NSWDC 816 Date of Decision: 24 November 2020 Before: Norrish KC DCJ File Number(s): 2019/212111