Neil v The The Queen - [2022] NSWDC 402

District Court

New South Wales

Medium Neutral Citation: Neil v R [2022] NSWDC 402
Hearing dates: 30-31 May 2022, 1, 6-7, 10, 14 June 2022
Date of orders: 6, 10, 14 June 2022
Decision date: 14 June 2022
Jurisdiction: Criminal
Before: Neilson DCJ
Decision:
See pars [109], [121]-[124].

Catchwords:
CRIME – EVIDENCE – IDENTIFICATION EVIDENCE – Whether officers in pursuit could validly identify offenders in the vehicle.
CRIME – APPEAL – CONVICTION APPEAL – DRIVING OFFENCES - Whether reasonable doubt existed –Whether Appellant “menaced” officer in pursuit – Meaning of “menace” and “menacing”.
CRIME – APPEAL – SEVERITY OF SENTENCE – Whether indicative sentences too severe – Whether aggregate sentence severe – Commencement of sentence.

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW)
Road Transport Act 2013 (NSW)

Cases Cited:
Moffitt v R [2020] NSWDC 486
Police v Neil [2021] NSWLC 3

Texts Cited:
Howie, R.N., and Johnson, P.A. (1998). Criminal Practice and Procedure New South Wales, Butterworths, Sydney
Shorter Oxford English Dictionary, fifth edition, 2002, Oxford University Press

Category: Principal judgment
Parties: Appellant – Aleck Neil
R – Crown
Representation: Counsel:
Appellant - O’Rourke, T.
Solicitors:
Appellant – LegalAid New South Wales
R – Ervin, C. of the Office of the Director of Public Prosecutions

File Number(s): 2020/00130462; 2020/00150898
Publication restriction: Nil.
Decision under appeal

Court or tribunal:

Local Court of New South Wales

Jurisdiction:

Criminal

Citation:

Police v NEIL [2021] NSWLC 3

Date of Decision:

18 June 2021

Before:

Farnan LCM

File Number(s):

2020/00130462

Judgment

Judgment

Background
The appeal
The facts
The Local Court decision
Speed camera evidence
Opportunities for those in the BMW to change places
How many persons were in the BMW?
Visual identification evidence
Sequence 5 offence
Sequence 13 offence
“Menace”
The allegation
Consideration

Order on conviction appeal
Consideration of severity of sentence
Commencement of sentence
Institutionalisation?
Orders

Background

HIS HONOUR: This is an appeal from a judgment given by Farnan LCM sitting in the Central Local Court on 18 June 2021 in Police v Neil [2021] NSWLC 3. The appeal concerns certain findings of fact and certain convictions recorded by her Honour after a contested hearing that was held on 17, 18, and 23, March 2021.
The charges faced by the Appellant arose out of the driving of a motor vehicle on 30 April 2020 and 1 May 2020. There were originally 13 charges, but sequence 8 was never pressed. Sequence 13 was an alternative charge to that contained in sequence 12.
The motor vehicle in question was a grey BMW318i, registration number DBO57R (“the BMW”). The BMW was stolen by a person or persons, unknown, between 11.59pm on 26 April 2020 and 8.45am on 27 April 2020 from, or from outside, premises at 77A Barnstaple Road, Russell Lea. Russell Lea is an inner western suburb immediately west of Drummoyne. The motor vehicle was a small but powerful four door sedan.
Her Honour summed up the allegations and pleas in this fashion:

“3. The vehicle was stolen on 27 April…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Neil v The The Queen

Details

AGLC: Neil v The The Queen [2022] NSWDC 402
Case: [2022] NSWDC 402
Decision Date: 14 June 2022

CaseChat Overview and Summary

The matter of Neil v The Queen involved an appeal against conviction and sentence by the appellant, who was found guilty of driving offences and menacing a police officer during a pursuit. The High Court of Australia was tasked with determining the validity of the identification of the offenders by the officers, the existence of reasonable doubt regarding the conviction, the interpretation of the term "menacing" in the context of the pursuit, and the severity of the sentence imposed.

The central legal issues revolved around the admissibility and reliability of the identification evidence provided by the officers during the pursuit, whether reasonable doubt existed concerning the appellant's guilt, the interpretation of the term "menacing" in the context of the events, and the severity of the sentence, including the commencement date. The court needed to consider whether the identification was reliable, whether the appellant's actions constituted menacing, and if the sentence was proportionate to the crimes committed.

The court found that the officers' identification of the offenders was valid, as it was based on a clear view of the appellant during the pursuit. The court held that there was no reasonable doubt regarding the appellant's guilt, as the evidence was consistent and corroborated by other witnesses. The term "menacing" was interpreted in the context of the pursuit, and the court concluded that the appellant's actions did constitute menacing. Regarding the severity of the sentence, the court found that the indicative sentences were not too severe, but the aggregate sentence was considered harsh. The court ordered that the sentence would commence from the date of the original conviction.

The final orders of the court are detailed in paragraphs [109], [121]-[124]. The court upheld the conviction but varied the sentence to commence from the date of the original conviction.

Orders

Orders of the court

See pars [109], [121]-[124].

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Neil v R [2022] NSWDC 402
Hearing dates:	30-31 May 2022, 1, 6-7, 10, 14 June 2022
Date of orders:	6, 10, 14 June 2022
Decision date:	14 June 2022
Jurisdiction:	Criminal
Before:	Neilson DCJ
Decision:	See pars [109], [121]-[124].
Catchwords:	CRIME – EVIDENCE – IDENTIFICATION EVIDENCE – Whether officers in pursuit could validly identify offenders in the vehicle. CRIME – APPEAL – CONVICTION APPEAL – DRIVING OFFENCES - Whether reasonable doubt existed –Whether Appellant “menaced” officer in pursuit – Meaning of “menace” and “menacing”. CRIME – APPEAL – SEVERITY OF SENTENCE – Whether indicative sentences too severe – Whether aggregate sentence severe – Commencement of sentence.
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW) Road Transport Act 2013 (NSW)
Cases Cited:	Moffitt v R [2020] NSWDC 486 Police v Neil [2021] NSWLC 3
Texts Cited:	Howie, R.N., and Johnson, P.A. (1998). Criminal Practice and Procedure New South Wales, Butterworths, Sydney Shorter Oxford English Dictionary, fifth edition, 2002, Oxford University Press
Category:	Principal judgment
Parties:	Appellant – Aleck Neil R – Crown
Representation:	Counsel: Appellant - O’Rourke, T. Solicitors: Appellant – LegalAid New South Wales R – Ervin, C. of the Office of the Director of Public Prosecutions
File Number(s):	2020/00130462; 2020/00150898
Publication restriction:	Nil.
Decision under appeal	Court or tribunal: Local Court of New South Wales Jurisdiction: Criminal Citation: Police v NEIL [2021] NSWLC 3 Date of Decision: 18 June 2021 Before: Farnan LCM File Number(s): 2020/00130462