R v Conway

Case •

[2020] NSWDC 816

•

24 November 2020

No judgment structure available for this case.

District Court


New South Wales

Medium Neutral Citation: R v Conway [2020] NSWDC 816
Hearing dates: 2 – 19 November 2020
Decision date: 24 November 2020
Jurisdiction:Criminal
Before: Norrish QC DCJ
Decision:

Guilty to Counts 1, 3 & 4

Verdicts for Counts 2 & 5 not required

Catchwords:

CRIME – trial by Judge – manslaughter – failing to stop to offer assistance – steal motor vehicle – driver – circumstantial evidence – consciousness of guilt – circumstances of aggravation at time of impact – expert evidence

Legislation Cited:

Crimes Act 1900

Criminal Procedure Act 1986

Evidence Act 1995

Cases Cited:

Fleming v The Queen (1998) 197 CLR 250

R v Borkowski [2009] NSWCCA 102

R v Pullman (1991) 25 NSWLR 89

Category:Principal judgment
Parties: Regina (Crown)
Sam Conway (Accused)
Representation: Counsel:
Mr R Herps (DPP)
Mr M Smith (Accused)
File Number(s): 2019/00212111
Publication restriction: No

Judgment

INTRODUCTION

  1. The accused, Sam Conway, was arraigned on 2 November 2020 in respect of five counts relating to a fatal collision on 15 January 2019 at Tumbi Umbi (near Wyong) between a Land Rover Discovery (NSW registration DQS89V), “the Land Rover”, allegedly driven by him, and a Kia sedan (AL80AY), “the Kia” driven by Darren Hill, in which Mr Hill was fatally injured.

  2. Count 1, is a charge of “manslaughter” of Mr Hill, alleged to be by gross negligent act pursuant to s 18 Crimes Act 1900. The Crown abandoned the allegation of manslaughter by unlawful and dangerous act in its final submissions. In the alternative is Count 2, a charge of dangerous driving in circumstances of aggravation (namely, at a speed that exceeded the speed limit applicable to that length of road by more than 45 km/h). As it transpires, the Crown accepts that it cannot prove the circumstances of aggravation, so the alternative under s 52A Crimes Act 1900 stands; dangerous driving causing death. Count 3 is a charge alleging the accused drove the Land Rover when it was involved in an impact occasioning the death of Mr Hill and that the accused ought reasonably to have known that the impact occasioned death, or grievous bodily harm to him, but that the accused failed to stop to give assistance that was necessary and within his power to give, pursuant to s 52AB Crimes Act 1900. Count 4 is an allegation of taking and driving the Land Rover without the owner’s consent, pursuant to s 154A Crimes Act 1900. Count 5, in the alternative to Count 4, is a charge of being driven in a motor vehicle without the consent of the owner pursuant to the same provision. To Counts 1 to 4 the accused pleaded “not guilty”. He pleaded “guilty” to Count 5. The Crown did not accept that plea in satisfaction of the indictment.

  3. The critical issue in relation to those four counts to which the accused has pleaded “not guilty” is whether the prosecution has proven beyond reasonable doubt that the accused was the “driver” at the time of the impact. An additional issue for consideration is whether in relation to Count 1, accepting the essential facts in relation to the circumstances of the collision giving rise to the death of the deceased if the accused is proven to be the driver, the driving of such a character to warrant the charge of manslaughter on whatever basis was advanced by the Crown. On this aspect, the defence position was that if ‘driver’ was established, the key issue was, had the manner of driving involved a risk of death or serious injury such as to render the accused liable for manslaughter, or “sufficiently beyond aggravated dangerous driving to render the accused (so liable)”, even if proven to be the “driver” at impact, that did not establish that he “took” the vehicle as required to be proved in respect of Count 4.

SUMMARY OF THE CROWN CASE

  1. The essence of the Crown case as it was conducted in relation to the character of the driving, is that at about 4:35am the Land Rover Discovery, which had been taken without the owner’s consent, was driven on the wrong side of the road on a dual carriageway comprising of 4 to 5 lanes at various points and collided with the motor vehicle driven by Mr Hill as his car was travelling on the correct side of the road on the inside lane to the kerb. The Land Rover had been taken from premises at Terrigal sometime after 11.30 pm the previous day or that morning. Immediately prior to the fatal impact, the Land Rover had stopped at lights at the intersection of Wyong Road and Mingara Drive, Tumbi Umbi. It was driven from there to the incorrect side of the road in a “northerly” direction at speeds of up to 120 km/h, 5 seconds before the impact, then at just below 100 km/h, 2 seconds before the impact, before the speed reduced to 73.4 km/h at impact. This was proven by downloaded data from the vehicles “black box”. The speed limit in the area of impact was 60 km/h. The Land Rover was driven in the lane closest to the kerb and thus that driver’s visibility of oncoming traffic was limited at the point of impact to no more than 60 metres ahead (probably less) as the impact occurred on what was a sweeping right-hand bend for the driver of the Land Rover and a sweeping left hand bend for the driver of the Kia driving south. The line of vision of both drivers was impeded by both the curve in the road and by a tree line set about 1½ to 2 metres back from the kerb. The impact forced back the Kia 20.1 metres from the point of impact; the Land Rover stopped 4.5 metres from the impact, reflecting a significant transfer of momentum to the Kia from the Land Rover because of its greater speed and greater weight.

  2. It was agreed that there was no mechanical contribution to the impact. It was “dark” with street lighting, the road surface was dry, the weather was clear. The Land Rover was started by a pushbutton, as long as the “key” or “fob” was in the car. Access to driving the car was gained by the taking of a woman’s handbag which contained the “fob” as well as other personal possessions from either inside an unlocked door at a residence at Terrigal or from the car itself. The car was registered in the name of a man however, it was in the control and possession of the woman whose handbag was taken, Allyson Smith. Her credit and/or debit cards that were in the handbag were used by third parties, persons known to the accused, before and after the collision.

  3. The Crown alleged that the accused before the time of the taking of the car was in company with four other people, Ryan Corby, Tanika Matthews, Amanda Haley and Richard Bourke at a residence in Berkeley Vale. These four people after the taking of the Land Rover, were travelling in a white Kia (owned by an associate of Mr Corby) and a white Hyundai under the lawful control of Mr Bourke. The Crown case was that the accused drove the Land Rover from when it was taken until the collision and that he was in the vehicle by himself at the time of the collision. This allegation is said to be supported by CCTV footage showing the accused in the driver’s seat of the car (by himself) purchasing lemonade and water from a McDonald’s restaurant in Bateau Bay, a location 7.5 km from the collision site, at 3:44am. The Crown relied upon evidence of the negotiation of credit cards at various places either side of the time of the collision to demonstrate, in part, that the other people with the accused at about the time of the taking of the Land Rover were not present at the time of the fatal impact.

  4. The accused had nominated Mr Corby (by the initials ‘RC’) as the driver when he gave his first interview to police on 20 January 2019 when he was primarily interviewed in relation to other matters. He confirmed that nomination when interviewed in relation to this specific matter on 24 April 2019.

  5. The Crown initially indicated that it relied upon evidence of the position of the driver’s seat which was locked at impact as being consistent with that being driven by the accused, he being approximately 5’6” tall and weighing around 60-75 kg at the time of the impact. However, evidence in the trial revealed that the position of the driver’s seat had not ‘locked’ on impact and was capable of adjustment without turning on the engine. DNA and fingerprint examination revealed fingerprints of the accused and his DNA profile present in various places in and/or on the Land Rover.

  6. The Crown relied upon representations made by Mr Corby on 1 April 2019 and in his evidence at trial. He denied he was in the vehicle at the time of impact. Ms Haley gave evidence that the accused was in company with Corby and Bourke when they left the premises in Berkeley Vale before Corby and Bourke returned without the accused. Afterwards she told of travelling around the Central Coast negotiating stolen credit cards. The Crown relied upon the absence of any DNA profile or fingerprints of Mr Corby in the Land Rover. The accused admitted in the course of interview with the police that he was a regular user of crystal methylamphetamine (otherwise known as “ice”) in January 2019.

  7. There was other evidence in the case as to persons coming upon the scene of impact. There were 2 witnesses to the impact. Some witnesses spoke of the erratic control of a similar car in the hour before the collision. Some witnesses believed only one person left the Land Rover after the impact (it being common ground that the driver left the scene after the impact); one witness believed that two people alighted from the Land Rover from either side of the vehicle, one wearing a dark singlet and the other shirtless. Another witness saw the car about 10 kms from the crash site at 3:55am with 2 people in it. Another witness nominated a shirtless man as being amongst the “spectators” standing around on the other side of the road from the collision.

  8. A number of police investigators and “experts” were called, as well as a forensic biologist and the technician that downloaded the data from the Land Rover

THE DEFENCE POSITION AS TO THE CROWN CASE

  1. From the outset there was little in the Crown case in dispute so far as the basic facts were concerned. No issue was taken as to the analysis of the circumstances of the collision, the approximate position of the Land Rover to that of the Kia at the point of impact and that the character of the driving was “dangerous”. The accused’s position at trial was that he denied being the person who took the Land Rover although he did not dispute driving into McDonald’s at Bateau Bay. As earlier mentioned it was not disputed the accused was in the vehicle at the time of impact and that he left the scene. No dispute arose as to the timing of fraudulent transactions on the stolen credit cards. It was accepted that in the two electronically recorded interviews he gave, the accused told a number of untruths including nominating Mr Corby as the driver of the car at the time of impact. It was contended from the outset that the case to implicate the accused as the driver at the time of impact was a circumstantial evidence case in the nature of “links in a chain”, but the indispensable link in the chain or proof of guilt had been broken. That proposition was abandoned, the circumstantial case being one of the “strands in a cable”. The accused did not give evidence.

LEGAL PRINCIPLES TO BE APPLIED

  1. The matters outlined below are primarily related to matters addressed upon. Not a great deal of attention was taken by the parties to legal issues as most legal issues appeared to be agreed amongst the parties at the end of the evidence, particularly on fundamental issues, although, a number of legal issues arose during the trial. The legal principles set out below and elsewhere referred to in the judgment or in the course of the trial on discrete evidentiary matters have to be considered.

Onus and standard of proof of guilt

  1. The prosecution bears the burden of proving the guilt of the accused. That burden or onus rests with the prosecution throughout the trial in respect of matters regarding proof by the prosecution. The accused bears no onus of proof in respect of these matters. The accused is presumed to be innocent until such time as the prosecution can prove his guilt in respect of a relevant count.

  2. The prosecution must prove each and all essential ingredients of a relevant charge for consideration ‘beyond reasonable doubt’. The accused bears no onus in relation to any matters requiring proof by the prosecution. If any reasonable doubt exists in relation to matters which the prosecution must prove, then I must acquit the accused. In this matter the accused did not give evidence. He was under no obligation to give evidence having a ‘right to silence’ both in and out of court.

Trial by judge alone

  1. The trial is a trial by judge alone in accordance with the provisions of the Criminal Procedure Act (see s 132, 133 Criminal Procedure Act 1986). A trial by judge alone in accordance with the relevant provisions of s 132, 133 Criminal Procedure Act1986 requires the trial judge not just to state bare principles of law that are applied and findings of fact that are made, but also to expose the “reasoning process” justifying the findings of fact and ultimately the verdict.

  2. All principles of law which are relevant and required to be applied and considered should be identified in the judgment, including any necessary warnings that the trial judge is required to apply in the assessment of the evidence. Where particular warnings are applied a judge must state why, if appropriate and applicable and notwithstanding the appropriate warnings or the consequences of it, a particular verdict has been reached (Fleming v The Queen (1998) 197 CLR 250 (at 261-264)).

Elements of the counts in the indictment

Count 1

  1. Manslaughter by negligent act:

In order to prove manslaughter on this basis the Crown must prove a number of facts beyond reasonable doubt. The Crown must prove each of the following beyond reasonable doubt:

  1. the death of the deceased; and

  2. the accused owed a legal duty of care to the deceased, and

  3. the accused committed an act and

  4. the act caused (that is, was a substantial cause of) or accelerated, the death of the deceased and

  5. the accused’s act was negligent in that he breached the duty of care which the accused owed to the deceased and

  6. the accused’s act amounted to criminal negligence and merited criminal punishment for the offence of manslaughter because:

  7. it fell so far short of the standard of care which a reasonable person would have exercised in the circumstances; and

  8. it involved such a high risk that death or really serious bodily harm would follow as a result of the act.

The death of the deceased

  1. The Crown must prove beyond reasonable doubt the death of the deceased. That is not an issue in this case.

The accused owed a legal duty of care to the deceased

  1. The Crown must prove that the accused owed a legal duty of care to the deceased. Every person owes a duty to conduct him or herself in a manner that he or she will not cause injury to another person in circumstances where a reasonable person in his or her position would have foreseen a risk of injury from such conduct to that other person. The law recognises that one person owes a legal duty of care to another in certain situations.

  2. There are other circumstances where the law does recognise one person owes a legal duty of care to another. For example, when one drives a motor vehicle on a public street then you owe a duty of care to other road users, whether they are drivers or pedestrians. When one breaches that duty of care one may be driving negligently because one’s standard of driving has fallen short of what is expected of a reasonable, prudent driver in the particular situation in which one was driving. This is simply an example of how a duty of care arises and the consequences of breaching that duty of care.

  3. A duty of care owed by one person to another can normally arise in at least four situations. One of those is an obligation imposed by law, such as the driving of a motor vehicle.

  4. The Crown here asserts that the accused owed a legal duty of care to the deceased as the driver of a motor vehicle on a public road. This is not in dispute.

The accused committed an act

The act caused (that is, was a substantial cause of) the death of the deceased

  1. The Crown must prove beyond reasonable doubt that the accused committed an act and that this act caused (that is, was a substantial cause of) the death of the deceased.

The accused’s act was negligent in that he breached the duty of care which the accused owed to the deceased

  1. The Crown must prove beyond reasonable doubt that the accused breached the duty of care owed by him to the deceased. I am to determine the standard of care required to be exercised by a reasonable person, that is, an ordinary member of the community, in the situation in which the accused was placed. If the accused failed to do what a reasonable person would have done, or did what a reasonable person would not have done in the situation in which the accused found himself, then I would find that the accused breached the duty of care owed to the deceased. Unless I am satisfied beyond reasonable doubt that there was a breach of duty of care, then the accused cannot be guilty of manslaughter.

  2. In deciding whether there was a breach of duty of care, I have to consider what a reasonable person would have done in the situation in which the accused was placed. A reasonable person is one who has some, but not all of the personal attributes of the accused. A reasonable person is a person of generally the same age as the accused; with his experience and training and with his knowledge of the facts. The reasonable person is a person of normal courage and resolve. So I have to put this reasonable person into the accused’s shoes at the time of the incident and attribute to that person the accused’s knowledge of the circumstances at the time the accused allegedly committed the relevant act or acts, or failed to take a relevant course of action.

  3. If the accused failed to act as a reasonable person would have done in that situation, then the accused has breached the duty of care that he owed the deceased. It does not matter whether the accused knew that he was breaching his duty of care, or whether the accused believed that he was acting in an appropriate way in the circumstances which he faced. I am not concerned with the accused’s personal beliefs about the correctness or appropriateness of his conduct. I am concerned with what a reasonable person in the accused’s position would have thought was appropriate and necessary.

The accused’s act amounted to criminal negligence and merited criminal punishment for the offence of manslaughter

  1. The Crown must prove beyond reasonable doubt that the accused’s act amounted to criminal negligence and merited criminal punishment for the offence of manslaughter.

  2. A mere breach of duty is not enough to amount to the offence of manslaughter. A breach of duty is often called carelessness or negligence. A breach of the duty of care may make a person liable to pay compensation to another person for damages in a civil action. However, that liability is not sufficient for the offence of manslaughter. The accused’s conduct must be so gravely in error and carry with it such a high risk of serious injury that it deserves to be punished as a serious criminal offence.

  3. The breach of duty must have a certain quality before the accused can be guilty of this offence. The accused’s conduct must, first, fall so short of what was required and, secondly, must give rise to such a high risk of serious injury or death, that the conduct deserves criminal punishment. It is negligence of such a serious kind that it far exceeds simple carelessness or negligence that occurs frequently in our society.

  4. If the accused’s breach of duty meets this level of seriousness and carries with it a high risk of serious injury or death, it does not matter that the accused never intended, or appreciated, that his actions might harm to the deceased.

Count 2 (the statutory alternative)

  1. the accused was driving a motor vehicle

  2. it was involved in an impact with another vehicle

  3. that occasioned the death of the deceased

  4. the driving was in a manner dangerous to other persons.

Count 3

  1. the accused was driving a motor vehicle

  2. there was an impact of that vehicle with another vehicle

  3. the death of the deceased was occasioned by that impact.

  4. he ought reasonably to have known that the impact occasioned the death or grievous bodily harm to Mr Hill, but that he failed to stay and give assistance that might be necessary and that was within his power to give.

Count 4

  1. the accused took and drove a conveyance (a white Land Rover)

  2. without the consent of the owner of the conveyance.

Alternatively,

Count 5

  1. knowing that the vehicle had been taken without the consent of the owner

  2. the accused allowed himself to be conveyed in it

  1. Other elements to be proven that require legal definition are:

Driver or Driving

  1. The Crown must prove that at the time of the impact the accused was sitting in the driver’s seat manipulating the controls for the forward propulsion of the vehicle including steering, accelerating and/or braking. There is no issue that the car was being “driven” at the time of impact.

Manner Dangerous

  1. The Crown must prove beyond reasonable doubt that the accused was driving in a dangerous manner at the time of the impact. The manner in which a person drives a vehicle includes all matters connected with the management and control of the vehicle when it is being driven, including its speed. Here the Crown alleges that the manner of driving was dangerous because the accused drove on the wrong side of the divided road at high speed well in excess of the speed limit allowing no time to take evasive action. Whether or not that manner of driving was “dangerous” will depend upon all the circumstances in which it took place. This includes such factors as the time of day, the nature of the road surface, the weather conditions, traffic conditions and the general area in which the vehicle is being driven.

  2. A person’s management and control of a vehicle may, in some cases, be potentially dangerous to other persons by its very nature, whatever be the circumstances in which the vehicle is being driven. For example, driving a motor vehicle with no effective brakes is an example of dangerous conduct in the use of a motor vehicle, regardless of where and in what circumstances it is being driven. This is because the ability to bring a vehicle suddenly to a stop is essential to the proper management of a motor vehicle.

  3. In other cases, the particular circumstances in which the vehicle is being driven by a person makes the driving potentially dangerous even though the driving may not be dangerous in other situations. For example, driving through a red light in a busy intersection in the middle of a suburban shopping centre on a Saturday morning may be an example of driving which is dangerous because of the circumstances in which the driving occurs. That situation can be compared with driving through a red light on a country road in the early hours of the morning when it is clear that no other vehicle is in the area. In those circumstances driving through a red light might not be considered to be dangerous even though it may be a breach of the traffic regulations. What distinguishes these two examples is the degree of risk of harm to other persons that arises from the manner of driving in the particular circumstances in which it occurred.

  4. The manner of driving will be dangerous if the Crown establishes beyond reasonable doubt that there has been a serious breach of the proper management and control of a motor vehicle and that the breach is so serious that it creates a real danger to another person or persons in the vicinity. The use of a motor vehicle is always potentially dangerous to some degree simply because it can so easily cause injury to another person in its vicinity. That potential can be minimised where the driver exercises proper control and management of the vehicle so as to avoid a relevant impact. Of course drivers are subject to human frailties and not every driver always exercises all the care and skill expected. But that does not mean that a driver is driving dangerously simply because of such a failure or because of the fact of an impact.

  5. The element of ‘dangerous driving’ is made out where the driver so seriously fails to properly control and manage the vehicle that he or she creates a real danger of harm to other persons in or around the vicinity of the vehicle far exceeding that which arises simply from the normal use of a motor vehicle. Driving in a dangerous manner is a breach of the criminal law whether or not it results in any impact because of the real risk of harm that it creates. There must be some feature of the driving which is identified not as a want of care but which subjects the public to some risk over and above that ordinarily associated with the driving of a motor vehicle, including driving by persons who may on occasions drive with less than due care and attention.

  6. There is a difference in degree in the risk of harm sufficient to result in a finding of breach of duty of care to others to keep a proper lookout required to establish that a person was negligent and that required to establish dangerous driving. Not all breaches of a duty to be careful would, because of the inevitable risk of harm to the public associated with driving a motor vehicle, constitute dangerous driving.

  7. I am concerned with the risk of harm arising from the manner of driving, rather than the result of the driving when deciding whether the driving in the particular circumstances was dangerous.

  8. The test as to whether the conduct of the driver was dangerous is an objective one. The Crown does not have to establish that the accused knew or realised that he was driving the vehicle in a dangerous manner. His conduct must be judged according to an objective community standard which applies to all drivers of vehicles. That standard does not take into account any personal characteristics of the driver, for example, his or her experience or inexperience as a driver.

Reasonably know

  1. Requires proof of what objectively was reasonable to be within the accused’s knowledge in all the circumstances as they were known to the accused.

Lies as evidence of consciousness of guilt

  1. The Crown submits that the accused told “lies” to investigating police during the course of their investigation, particularly in the electronic interviews on 20 January 2019 and also on 24 April 2019. The Crown submits that I should have regard to particular ‘lies’ as evidence of consciousness of guilt on the part of the accused. Those two matters are, firstly, the accused in the first interview denied that he drove the Land Rover and, secondly, that in both interviews he identified the driver as Ryan Corby. Other untruths were submitted to be relevant to the assessment of his credibility.

  2. In relation to this submission, I note that a lie is something that is said by a person that is untrue, knowing at the time of making the statement that it is untrue. However an untruth may be told without realisation of that fact. People can be mistaken or confused in recounting relevant events and if it a later time a witness realises that what he or she said was incorrect it does not transform the statement earlier made into a lie. Consideration of lies requires a careful approach in deciding their significance in any court case. However, a lie can be taken into account as evidence of the accused’s guilt but cannot prove his guilt by itself. Proven lies in this context can be considered with other facts and circumstances in determining whether the prosecution has proved its case beyond reasonable doubt.

  3. In order to rely upon lies as evidence of consciousness of guilt the Court must find, firstly, that the relevant lie relates to an issue that is relevant to a particular offence alleged against the accused as having been committed by him. It must relate to a significant circumstance or event connected to the alleged offences. The Crown submits that these lies are relevant because they go to the issue of whether the accused was the driver. The Crown submits that lies of their character are relevant to proof of guilt in respect of Counts 1 to 4 in the indictment.

  4. Secondly, I must find the reason the accused told a relevant lie was because he feared that telling the truth might reveal his guilt in relation to the charges he now faces. That is, he feared that telling the truth would implicate him in the commission of the offences for which he is now on trial.

  5. I am to remember that people do not always act rationally and that telling a lie may sometimes be explained in other ways. A person may have a reason for lying apart from trying to conceal his guilt. A lie may be told out of panic, to escape an unjust accusation, to protect some other person or to avoid a consequence unrelated to the offence. If I think that a relevant lie may have been told for some other reason other than to avoid being implicated in the commission of the offences for which the accused is now on trial, evidence of lies cannot be used as evidence of his guilt. In those circumstances it may be put aside in that regard and I should focus my attention upon the other evidence in the case.

  6. This Crown also submits that if these lies identified by it as evidence of “consciousness of guilt” are not available for that purpose, they are still relevant to the assessment of the accused’s credibility as are other alleged untruths told by the accused either in his electronic interview or his evidence. If the court is satisfied that a lie has been told, that is, I am satisfied that the accused said something that was untrue and at the time of making the relevant statement he knew it was untrue, I cannot use that fact in support of the conclusion that the accused is guilty. But the relevant lie can be taken into account in the assessment of the accused’s credibility in his denial of guilt.

Separate consideration of counts

  1. Each count (other than counts alternate to other counts) requires consideration of only the evidence relevant to proof of that count. In respect of Counts 1, 2 and 3, the evidence is primarily common. The evidence in relation to those counts overlaps with evidence only relevant to Count 4 (and 5). Proving the accused took the vehicle (Count 4) is relevant to, but not decisive, in respect of Counts 1-3.

Circumstantial evidence

  1. The Crown case in relation to the issue of whether the accused was the driver is based upon direct and circumstantial evidence.

  2. The defence also relies upon other circumstantial evidence as well as the direct evidence of the accused in his denials and as to relevant events and circumstances relied upon by the prosecution.

  3. My function as the judge of the facts in this case extends beyond coming to a conclusion as to whether I find that any particular fact has been established by the evidence. My function also extends to drawing reasonable inferences or conclusions from the facts I find established. “Inference” and “conclusion” mean the same thing.

Circumstances relied upon by the Crown in relation to ‘driver’

  1. The Crown submitted that to the extent the Crown relied upon circumstantial evidence, that circumstantial evidence operated as “strands in a cable”.

  2. As I understood the Crown’s submissions, the main “circumstances” identified by it were:

  1. The accused admitted being in the car at the time of the collision and admitted driving the car at particular times.

  2. It was impossible for Ryan Corby to be the driver. In any event when Corby gave evidence it was not put to him that he was the driver.

  3. The accused was the person who went with Corby and Burke from the premises at Berkeley Vale where Haley and Matthews waited but only Bourke and Corby returned.

  4. After that, Corby had access to a white Kia and Bourke had access to a white Hyundai.

  5. Corby had stolen Ms Smith’s handbag and used some of the proceeds, credit cards, for his and others’ personal use during the time that the Land Rover was being driven around the Central Coast without the owner’s permission up until the time of the collision.

  6. Corby had possession of the “key fob” but gave it to the accused.

  7. The accused drove the Land Rover away from the scene of the theft of the handbag by himself.

  8. There was film and photographic evidence (and an admission by the accused) that he was driving the Land Rover at 3:44am at the McDonald’s restaurant drive-through at Bateau Bay.

  9. Nobody else can be seen in the car at McDonald’s.

  10. At a later time he was seen by Ms Haley driving the Land Rover by himself.

  11. In no version given by him to police on two separate occasions did he assert that anybody else other than he and Corby were in the car.

  12. He admitted using the pink cloth found in the car for the purposes of wiping fingerprints and removing DNA and that pink cloth with his DNA upon it was found located wedged to the steering wheel on the driver’s door side of the car.

  13. Although he claimed in his interview that he was frightened by the driving of the driver and thought he was to be assaulted and/or “kidnapped”, he never tried to escape from the car even when on his own version he had opportunities to do so.

  14. He claimed in the second interview that when he bought a container of lemonade (or Sprite) and the water at McDonald’s at Bateau Bay, he purchased the lemonade for the other person who was hiding in the car so he could not be seen, yet DNA testing of the straw in the drink container shows a single source of DNA, that of the accused.

  15. There was no evidence by way of DNA or fingerprint material to identify any person (other than Ms Smith and her family) as being associated with the Land Rover who might otherwise be reasonably expected to be known to the authorities either by way of DNA sampling for the investigation, or from the database of DNA samples from people adversely known to the police, or might reasonably be connected to the events of the morning.

  16. There is no evidence of anyone who observed the car or saw the occupant(s) fleeing after the collision seeing a person wearing a balaclava. No balaclava or gloves were found in the car.

  17. The description of the driver by Ms Scott is similar to the physical characteristics of the accused. The similarity of the driver by Mr Smith’s description is similar to that of the accused.

  18. “Reliable” eyewitnesses see only one person alight from the vehicle in circumstances consistent with only one person being in the car.

  19. The description of that person leaving the vehicle is inconsistent with the description the accused gave of himself crawling out of the lap of the driver after the collision and inconsistent with the accused claiming to leave the car through the driver’s door ahead of the driver.

  20. Nobody sees two people leaving the driver’s side of the car.

  21. There was an inherent unlikelihood of the accused moving back and forth from the backseat to the front seat during the alleged dangerous driving of the other driver rather than sitting in one seat and buckling up his seatbelt.

  22. The accused told two significant lies that are evidence of consciousness of guilt, that Corby was the driver in two separate interviews and in the first interview denying that he was the driver at any time.

  23. There was DNA evidence that linked the accused to the driver’s seat and the driver’s seat belt.

  24. There was fingerprint evidence that linked the accused to the exterior of the driver’s side of the vehicle.

Circumstances relied upon by the accused

  1. The matters I identified in the accused’s submissions that I noted (bearing in mind the accused’s counsel did not go through these issues ‘seriatim’) as circumstances inconsistent with guilt or going to the issues raised by the accused included:

  1. The last time it could be definitively, or objectively, pointed to as to when the accused was behind the driver’s wheel was when the Land Rover was at the McDonald’s store at Bateau Bay at 3:44am (Exhibit G2).

  2. The accused was wearing a black, long sleeved top on that occasion and was in possession of a pink coloured cloth.

  3. The two witnesses who implicated the accused in the taking of the car by himself, Amanda Haley and Ryan Corby, had given untruthful evidence under oath in the trial.

  4. Haley provided no reliable time for the people coming and going from the house at Berkeley Vale, and Corby does not confirm he was there.

  5. There was no direct evidence as to who Ryan Corby gave the key for the Land Rover to, for the purpose of taking it away from the home of Ms Smith.

  6. These two witnesses were unreliable witnesses in that they were criminally concerned with events connected to the taking of the motor vehicle and that they both admitted to ingestion of prohibited drugs before Mr Corby stole Ms Smith’s handbag.

  7. Both Corby and Haley admitted to acts of dishonesty during the early hours of 15 January 2019.

  8. Adam Smith observed the stolen Land Rover with two occupants when it passed close by him on The Entrance Road at about 3:55am, about 10 kms from the collision site.

  9. One of the occupants in the passenger seat was in possession of, or wearing, an item that was pink in colour. A pink towel had been in the possession of the accused when he was in the Land Rover.

  10. One of the witnesses to the aftermath of the collision saw two people leaving the front cabin of the Land Rover, one of whom was bare-chested.

  11. On one version from that witness, the “passenger” had a dark top on not dissimilar in colour to the top worn by the accused at McDonalds.

  12. There was ample time between 3:44am and 4:35am on 15 January 2019 for the accused to change positions in the Land Rover.

  13. Mr Gariano was the only eye witness to events after the collision to have a clear view of the passenger’s side of the Land Rover.

  14. More than one set of footprints could have been in the grass area leading away from the collision site to Bon Mace Crescent.

  15. With two people in the Land Rover at the time of the collision, the Crown cannot exclude the reasonable possibility that the accused was not the driver.

  16. The accused had a long sleeved top on at 3:44am and was never “bare-chested”.

  17. Ms Scott did not “notice” the “driver” carrying anything but he was bare-chested and no long sleeved top was found in the Land Rover.

  18. Mr Mauii thought that the “driver” may not have had a shirt on.

  19. The DNA/fingerprint evidence was consistent with the accused’s account of limited driving in Exhibit F, F1.

  20. The “forensic” evidence did not implicate the accused as “the driver” at the time of the impact.

  21. Alleged lies were not evidence of consciousness of guilt necessarily, as the accused had good reason to divert attention from himself, given his belief as to why he was regarded as a suspect.

  1. Where circumstantial evidence, such as here, is considered with direct evidence, no individual fact established can prove the guilt of the accused.

  2. Where the Crown’s case depends on circumstantial evidence, then the Court is asked to reason in a staged approach. The Crown first asks the Court to find certain basic facts established by the evidence. Those facts do not have to be proved beyond reasonable doubt. Taken by themselves they cannot prove the guilt of the accused. The Court is then asked to infer or conclude from a combination of those established facts that a further fact or facts existed. The ultimate fact the Crown asks the Court to find based upon the basic facts established from the circumstantial evidence and the direct evidence is that an accused person is guilty of any particular offence charged.

  3. A case based in part on circumstantial evidence may be just as convincing and reliable as a case based upon direct evidence. This will depend upon the number and nature of the basic facts relied upon by the Crown when considered as a whole (not individually or in isolation). It will depend upon whether all of the evidence leads to an unavoidable conclusion that the Crown has established the guilt of the accused. It is important that I approach a circumstantial case by considering and weighing, as a whole, all the facts I find established by the evidence. It is wrong to consider any particular fact in isolation and ask whether that fact proves the guilt of the accused, or whether there is any explanation for that particular fact or circumstance which is inconsistent with the accused’s guilt.

  1. The correct approach is first to determine what facts I find established by the evidence. Any particular fact to be taken into account by me does not need to be proved beyond reasonable doubt except here in two respects.

  2. If such a conclusion does not reasonably arise in relation to a particular count in the indictment, then the Crown’s circumstantial case fails because I am not satisfied of guilt beyond reasonable doubt. Of course, it follows that I must find the accused “not guilty” of the relevant count to that evidence.

  3. But if I find that such a conclusion is a reasonable one to draw, based upon a combination of those established facts then, before I can find the accused guilty I must determine whether there is any other reasonable conclusion arising from those facts that is inconsistent with the conclusion the Crown says is established. If there is any other reasonable conclusion arising from those facts that is inconsistent with the guilt of the accused the circumstantial case fails, because I am not satisfied beyond reasonable doubt of the accused’s guilt.

  4. I understand that drawing a conclusion from one set of established facts to find that another fact is proved involves a logical and rational process of reasoning. I must not base my conclusion upon mere speculation, conjecture or supposition.

  5. In order to satisfy the Court beyond reasonable doubt of the accused’s guilt of a particular offence where circumstantial evidence is relied upon, the Crown must first persuade me that the inference or conclusion it relies upon is a reasonable one to draw from the facts that I find established by the evidence. It then must prove to me that the only reasonable inference or conclusion that can be drawn from a consideration of all the established facts viewed as a whole is that the accused is guilty of the particular offence I am considering. In other words, the ultimate inferences to be drawn to prove particular elements of a particular charge are to be proved beyond reasonable doubt. If a reasonable possibility exists inconsistent with guilt in relation to a matter requiring proof by the prosecution then the prosecution has failed to prove that matter beyond reasonable doubt. In other words, if there is any other reasonable conclusion open on those facts that is inconsistent with the conclusion the Crown asks me to find, then the Crown’s case has failed in respect of the particular count I am considering.

Expert evidence

  1. In this case witnesses have given opinion evidence upon matters relating to the operation of the Land Rover Discovery, DNA testing and analysis, fingerprints examination, motor vehicle operation, amongst other matters.

  2. The opinions expressed constitute “expert opinion” and findings. An expert witness is a person who has specialised knowledge based on that person’s training, study or experience. Unlike other witnesses, a witness with such specialised knowledge may express an opinion on matters within his or her particular area of expertise. Other witnesses may speak only as to facts, that is, what they saw or heard, and are not permitted to express their opinions.

  3. Of course, the value of any expert opinion is very much dependent on the reliability and accuracy of the material which the expert used to reach his or her opinion. It is also dependent upon the degree to which the expert analysed the material upon which the opinion was based and the skill and experience brought to bear in formulating the opinion given. Experts can differ in the level and degree of their experience, training and study, yet each can still be an expert qualified to give an opinion where that opinion is based on that witness’ specialised knowledge.

  4. I should bear in mind that if, having given the matter careful consideration, I do not accept the evidence of a particular expert I do not have to act upon it. This is particularly so where the facts upon which the opinion is based do not accord with the facts as I find them to be. I am also, to a degree, entitled to take into account my common sense and my own experiences if they are relevant to the issue upon which the expert evidence relates, but not displace uncontroverted opinion, or opinions accepted as correct by the parties.

  5. I should remember that the expert evidence relates only to part of the case, and that while it may be of assistance to me in reaching a verdict, I must reach my verdict having considered all the evidence. The opinion of the experts is not determinative of the guilt of the accused. It is part of the evidence relied upon to prove the guilt of the accused.

  6. If an opinion is based upon facts which I am satisfied have been proved, or assumptions that I am satisfied are valid, then it is a matter for me to consider whether the opinion that is based upon those facts or assumptions is correct. On the other hand, if I decide that the facts have not been proved, or the assumptions are not valid, then any opinion based upon them is of no assistance because it has no foundation. If that is the case, the opinion should be disregarded.

Prior inconsistent statements

  1. Prior inconsistent statements are statements made by a witness about relevant events before giving evidence that are inconsistent with the evidence of the witness in the trial.

  2. If there is an inconsistency between a previous statement and evidence in this Court, or an inconsistency between the accounts of different witnesses who observed the same event, that may be taken into account in either assessing the credibility of the particular witness in relation to that particular matter or in assessing the credibility of the witness generally. In considering such inconsistencies I may, if I am satisfied that there are inconsistencies, regard those matters as reflecting adversely upon the truthfulness of a particular witness. The significance of these matters in relation to a particular witness will depend upon the significance of the inconsistency, the number of inconsistencies and of course the significance of the witness in the case.

  3. A ‘recent invention’ is a suggestion that something said in evidence has been made up, is false or unreliable because it was not mentioned or detailed beforehand when the witness had an opportunity to give a full account of relevant events. Whether such a matter is a ‘recent invention’ or not is a matter for the court to decide. Whether it reflects adversely upon the credibility and/or truthfulness of the witness again is a matter for the Court.

Admissions

  1. An admission is a representation made orally or in writing by a defendant in a criminal proceeding asserting a fact or facts, relevant to the facts in issue in relation to the matter or matters with which he or she is charged.

  2. An admission is a representation adverse to the interests of a defendant. But it may be inculpatory or exculpatory. An admission may not be a confession. It may inculpate a person on a minor or peripheral matter which is not of any significance or is not disputed, but if proven not is not necessarily consistent with guilt.

  3. It may be an admission to the fact that does not of itself prove guilt, or of a matter that is entirely neutral in the case. It may be made either before, during or after the commission of a particular offence. Most admissions are made after relevant events giving rise to a particular event. An admission may be expressed or implied. But an “implied” admission will by its nature be equivocal in its meaning. It may have other meanings inconsistent with a meaning that constitutes an admission adverse to the interests of the person making the relevant admission.

View

  1. A view was conducted on 9 November 2020 at the scene of the collision on application of the parties in accordance with the provisions of S. 53 Evidence Act 1995. The observations at the view can be considered as required or permitted by s 54 of that Act.

s 165 Evidence Act warnings

  1. I warn myself that the evidence of Amanda Haley and Ryan Corby may be unreliable for a number of reasons.

  2. In the case of Mr Corby his evidence may be unreliable because he is a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to this proceeding, having stolen the handbag that contained the “key fob” for the Land Rover and handed it to another person. Likewise, in my view, although she was not involved in the theft of the handbag, it could be reasonably said that Ms Haley might reasonably be supposed to have been criminally concerned in the events giving rise to the proceedings, having taken advantage of Mr Corby’s theft of the handbag in circumstances where I am satisfied that she must have been told about the use of the “key fob”, given information provided to her in relation to the Land Rover that she saw after she had been to McDonald’s restaurant at Bateau Bay.

  3. Mr Corby may further be unreliable because the Crown applied for, and was granted leave, to cross-examine him on material matters, he having given unfavourable evidence by regard to an earlier version provided to police on 1 April 2019. He may also be unreliable by reason of the fact that he is a self-admitted thief and at the time of relevant events was using prohibited drugs, particularly methylamphetamine or ice. Further, I note that he was given the protection of a certificate pursuant to s.128 Evidence Act 1995 which may reflect upon the reliability of his evidence.

  4. In relation to Ms Haley she may be unreliable because of her self-admitted ingestion of prohibited drugs, particularly injecting and smoking methylamphetamine, on the evening to early morning of 14-15 January 2019. She may be unreliable as a witness because she admitted acts of dishonesty during the morning of 15 January 2019, particularly using credit or debit cards to obtain goods in circumstances where she must have known those cards were stolen and must have known that it was dishonest to use them without the owner’s consent. Bearing in mind she had no relationship with the lawful user of the cards, Allyson Smith.

  5. I warn myself generally, particularly in relation to these witnesses, that representations made by them to other persons at relevant times which were hearsay may be unreliable for that reason. I note the representations made to Ms Haley about the identity of the driver of the Land Rover, of which she gave evidence, must have been ‘second hand hearsay’ given that she was with Mr Bourke at the time and that anything he said about the Land Rover must have come from representations made by Mr Corby of which he could not have had first-hand knowledge, based upon Mr Corby’s version of the disposal of the “key fob” for the Land Rover.

Silent Accused in Court

  1. The accused has not given evidence. The accused has pleaded ‘not guilty’. As I have already pointed out, the prosecution bears the onus of satisfying me beyond reasonable doubt that the accused is guilty of the offences charged.

  2. The accused bears no onus of proof. He has a right to silence in court. The accused is presumed to be innocent until such time as I have been satisfied by the prosecution of his guilt of a relevant count in the indictment.

  3. Consistent with this, the accused is entitled to elect not to give evidence and to make the prosecution prove his guilt. The accused in this trial has chosen, as is his right to do so, not to say anything in Court. An accused person cannot be compelled in Court to say anything. All persons charged with criminal offences have the right to put the prosecution to proof as to allegations made against them.

  4. I cannot draw any adverse inference against the accused because he has exercised his right to silence in Court. I cannot interpret it in any way as being an acknowledgment on his part as to the accuracy, veracity or strength of the prosecution case. I should not be tempted to reason that the accused has not given evidence because he is guilty or believes he is guilty, or responsible for what is alleged. Such reasoning is prohibited and I must not engage in it. I should appreciate that such a process or means of reasoning is entirely inconsistent with the burden of proof resting upon the prosecution.

  5. There are many reasons why an accused person may elect not to give evidence or call evidence. I must not speculate as to why the accused has not given evidence or what he could or would have said. Furthermore, I must not treat the accused’s election not to give evidence as being capable of filling any gaps in the prosecution case that I may perceive to exist. It cannot be used in any way as strengthening the Crown case or in assisting the prosecution to prove the case against the accused beyond reasonable doubt.

EVIDENCE IN THE TRIAL

  1. The principal witness to set the scene was the “crash investigator” and Officer in Charge of the case, Senior Constable Wright, who attended upon the scene at about 7:00am and was in attendance for several hours in conjunction with another crash investigator. The large bulk of his evidence was not in dispute and was concerned with a reconstruction of the circumstances of the impact from his observations of the scene and those of colleagues, survey plans of the scene, photographs and examination of the respective vehicles. I am satisfied beyond reasonable doubt as to the accuracy of his evidence so far as the examination of the scene is concerned and the particular conclusions that can be reached from his evidence and other investigators that attended. I set out those conclusions later in respect of matters of which I am satisfied. It is clear that he formed a view as to who the driver was (it is repeated many times in his statement). I do not accept that subsequent enquiries were influenced by his opinion. The failure to interview an important witness until November 2020 was no fault of his and the fingerprint and DNA examination that he directed was consistent with his concern to identify the driver.

  2. Although a number of police gave evidence of their observations of the aftermath of the collision and tasks they undertook to assist the investigation, the only particular evidence that ought at this point be summarised is that of Benjamin Hand, Constable of Police from Wyong Station, who was given various tasks at the scene of the collision by superiors, including speaking to people who had provided assistance and looking for CCTV footage relevant to the accident. He also helped to try and revive the driver of the Kia. Whilst seeking to locate CCTV footage of the incident he noticed a set of footprints that looked to him to be coming from the direction of the Land Rover in the “wet grass”…..

“travelling in an easterly direction from Wyong Road heading towards Bon Mace Crescent, Tumbi Umbi. There appeared to me to be at least one clear set of footprints in the wet grass”.

He produced a diagram that had crosses on it representing the movement of the footprints (Exhibit K2). This evidence needs to be considered in conjunction with Exhibit H1, an aerial photograph showing the location of the particular CCTV camera in Bon Mace Crescent (H1) and CCTV footage of a lone figure moving along that road from left to right of the screen, that is away from the scene of the collision at a time very shortly after the collision occurred (Exhibit H2). The witness accepted that he saw these footprints at least at about 6:45am and the grassed area did not appear to him to be some type of track “distinguishable from the scrub located on either side of it”. He could not be certain that there was only one set of footprints (pp176 – 177).

  1. I note the purposes of this judgment that the view that was undertaken provided an opportunity to observe the grassed area to which the officer referred, to appreciate its relationship to the collision site which could be readily identified with the use of photographs and markings on the road that are shown in those photographs as well as viewing the location of relevant CCTV cameras and their relationship to Bon Mace Crescent. The view also provided an opportunity which I raised in submissions, without a comment from the parties, to view the curvature of the road and the line of sight to the collision location coming from the direction travelled by the Land Rover and the direction travelled by the Kia. There is a summary of what occurred during the view, who was present and what was viewed in the context of the available evidence at pp 304 – 305 (9 November 2020).

Other evidence in the Crown case

  1. Below is a summary of that evidence apart from other pieces of evidence from particular witnesses that have been picked up from submissions. All the evidence has been taken into account. Some evidentiary matters summarized below reflect findings of fact made by regard to the relevant evidence.

  2. Various enquiries were undertaken at the direction of Senior Constable Wright, including a crime scene investigation for the purposes of taking fingerprints and swabs and tape lifts by two Crime Scene Officers, examination of the latent fingerprints and comparison with known fingerprints by a qualified officer; scientific examination by a forensic biologist for the purposes of identifying any particular DNA profiles known or unknown; examination of the data held within the Land Rover providing information relating to its performance up until the time of collision amongst other matters; mechanical inspections; obtaining CCTV images from which various stills were produced to the court, as well as where necessary, the actual CCTV footage. That CCTV footage of critical importance included that of the driving of the Land Rover at McDonalds at Bateau Bay at 3:44am by the accused (Ex G1) and that from a business premises at Bon Mace Close near the scene of the collision (Ex H2).

  3. Evidence was obtained in the investigation and given in the trial from the owner of the Land Rover, Allyson Smith relating to the circumstances in which her motor vehicle and personal possessions were taken. She lived at Terrigal, went to bed at about 10:30pm on 14 January. She left her handbag inside an unlocked door to her house. That was stolen containing the “key fob” for the Land Rover as well as a number of her credit cards and/or debit cards. These were used by other people associated with the accused during the early hours of 15 January 2019, who were travelling around the Bateau Bay, Tumbi Umbi, Berkeley Vale, Wyong Road area, between 3am and 5am on 15 January in a white Kia and a white Hyundai. Neither of these cars was involved in the collision. At particular points where they can be identified, Robert Corby was driving the white Kia, in company with Tanika Matthews, his girlfriend, and the other car is driven by Richard Bourke, accompanied by Amanda Haley. These motor vehicles accompanied one another to McDonald’s at Bateau Bay, approximately 15 minutes before the accused drove through the takeaway section in the Land Rover, collecting a lemonade in a cardboard disposable drink container, with a straw. The container and the straw were later found after the collision on the floor of the passenger’s side front foot well. The accused also obtained a water in a plastic container at that time. The duplicate ‘Tax Invoice’ for the purchase of these drinks, produced by an employee of the McDonald’s organisation, is evidence available as a “business record” of the transaction and its timing. It is much more reliable evidence than the time imprint on the CCTV vision from McDonald’s which was manually entered at an earlier time. This was ultimately accepted to be so in the conduct of the case by the defence.

  4. With the aid of CCTV footage and receipts issued in respect of some of the goods purchased by the use of Ms Smith’s credit or debit cards (with $202.72 taken from her Westpac Choice account and $178.85 taken from her Visa card) the Court can track the movements of the two vehicles and particularly the transactions negotiated by the two women over a period of time that overlaps the time of the collision. Their movements were generally confirmed in the evidence of Ms Haley and Mr Corby and Exhibit G.

CONCLUSION

  1. In relation to Count 1, I am satisfied beyond reasonable doubt that the accused was the driver of the Land Rover that collided with the deceased’s Kia. Thus, I am satisfied beyond reasonable doubt in relation to elements (i), (iii) and (iv) as I have outlined above. There is no doubt that the accused owed a legal duty of care to the deceased. Every person owes a duty to conduct themselves in a manner that will not cause injury to another person in circumstances where a reasonable person in the accused’s position would have foreseen a risk of injury from such conduct to that person. The accused, as the driver of the Land Rover, bore a duty of care to other road users including the deceased. Further, in the circumstances of the matter set out above he breached that duty of care that he owed to the deceased, who in no way contributed to the collision.

  2. The critical issue, as his counsel acknowledged, was whether the accused’s act amounted to criminal negligence and merited criminal punishment for the offence of manslaughter. As earlier outlined, the Crown must show that the accused’s conduct fell so far short of the standard of care which a reasonable person would have exercised in the circumstances and involved such a high risk that really serious bodily harm would follow as a result of the act.

  3. The relevant matters for consideration of this “sixth” element, that I referred to in ‘Legal Directions’ above that arise from the facts of this case are mostly as identified by the learned Crown Prosecutor in his closing submissions. They were; the impact occurred when the Land Rover was travelling on the incorrect side of a divided road. It was travelling in the lane furthest from the median strip, at a speed which reached 120 km/h five seconds before the impact in a 60 km/h zone. The Land Rover was travelling just below 100 km/h a second before the brakes were applied by the accused which was a second before impact, reducing to a speed of 73.4 km/h at the point of impact which was less than a metre from the south bound kerb with the Kia travelling on the correct side of the road within the lane closest to the kerb at a much lesser speed than the Land Rover. The momentum of the Land Rover forced the Kia 20.1 metres from the point of impact, yet the Land Rover moved only four metres from the point of impact. The much greater momentum of the Land Rover caused considerably more damage to the Kia than to itself. It was night time. Although I accept the Land Rover’s headlights were on, as no doubt were the Kia’s, Mr Hill could not reasonably expect to come across a motor vehicle emerging from the bus lane into lane No.1 (the kerbside lane) in which the Kia was lawfully travelling. Further, both the driver of the Land Rover and the driver of the Kia would have had less than two seconds to react to the impending collision that could not be avoided, despite the belated effort by both to do so. The location of the greater damage to both vehicles on the driver’s side shows that Mr Hill at least, endeavoured to turn away from the impact with obvious lack of success because of a lack of real opportunity.

  4. Other relevant matters to the character of “negligence” of the accused include the fact that the driver of the Land Rover deliberately turned onto the incorrect side of the road from the traffic lights at Mingara Drive before turning left into the extreme outside lane from the median strip (the third or Bus Lane) for approximately 500 metres from the lights before merging to the point of collision and travelled at high speed (up to 120 km/h), for a substantial part of that distance. One matter not referred to specifically by the Crown, but relevant to the assessment of this matter, is that in that course of conduct, based on the evidence of Police Officer Scarfe, the Land Rover on the incorrect side of the road, passed at least two cars driving in a southerly direction that took evasive action to prevent or lessen the risk of collision with it on the stretch of road between the Mingara Drive lights and the point of collision about 500 metres “north”. The significance of this fact occurring so close in time to the point of collision is that it would have demonstrated to the driver of the Land Rover, if he had been prepared to heed the fact, that this was not a deserted road, notwithstanding the early hour of the morning and that the risk of other vehicles approaching him that he could not see and could not expect to see until the last moment was real, not imaginary or remote.

  5. At 120 km/h the Land Rover would travel a half a kilometre in 15 seconds. I appreciate the Land Rover was not travelling 120 km/h that entire distance on the wrong side of the road, but it was accelerating steeply as the evidence of Mr Scarfe and Ms Scott makes clear. Mr Mauii and Ms Scott made clear its course of travel with the description of the vehicle passing them and accelerating away from them before the point of collision. Further, the peak of the acceleration was ongoing at five seconds from the point of impact, had been maintained as the straight stretch of road began to curve, thus quickly restricting the line of vision towards oncoming traffic. The driver of the Land Rover gave Mr Hill no chance whatsoever and the tragic outcome, although not intended by the accused, can be seen in the context of the wisdom of hindsight, as inevitable. More importantly, in the context of what was reasonably foreseeable, the collision occurred with a very high risk that really serious bodily harm would occur to other road users, including any other occupants of the Land Rover. Part of that aspect includes consideration of the fact that the accused was driving a substantial vehicle, sometimes described as an SUV, which objectively is, or was, larger in mass than the average sedan which might reasonably be foreseen to be travelling on that stretch of road at that time. Another matter to consider is that the Land Rover, driven as it was on the south-bound side of the road, could not reasonably be expected to cross over to the correct side of the road until the next roundabout, perhaps 400-500 metres or so to the north.

  6. Thus, I conclude that all the relevant elements for manslaughter by reason of criminal negligence have been established beyond reasonable doubt by the Crown. Whilst counsel for the accused opened with an alternative argument that the high level of negligence required to be established would not be established on the evidence, in closing submissions no substantial argument was put to the contrary.

  7. In relation to Count 3, I am satisfied beyond reasonable doubt that all the elements of that charge have been made out. The critical issue in light of the earlier findings is whether the accused ought reasonably to have known that the impact occasioned the death or grievous bodily harm of Mr Hill, but that he failed to stay and give assistance that might be necessary and that was within his power to give.

  8. Firstly, having regard to the many lies the accused told after the event to avoid conviction for his wrongdoing, it is clear the accused fled the scene without any regard to Mr Hill’s welfare solely to avoid apprehension and punishment for his obvious criminal conduct. He was driving a car that had been “stolen” by him and he had driven in an obviously highly dangerous manner. His actions, as described by the two eyewitnesses who saw him get out of the driver side, reveal a person who did not pause at any point to check on the welfare of the driver of the other car. Obviously, there must have been a driver in the car that the Land Rover collided with. The impact was significant, the Kia was significantly damaged, more so than the Land Rover, as was obvious from even a cursory examination of both cars, “driven back” 20 metres from the point of impact and, as Exhibit Q shows, steaming.

  9. The accused’s actions after the collision showed no regard for the welfare of the other driver. Therefore he failed to stay and give assistance that might be necessary and was within his power to give. The measure of assistance that might be necessary and was within the power of the accused to give is that Mr Mauii, as I pointed out to him when he gave evidence, selflessly went to the aid of Mr Hill, tried to extricate him from the vehicle, and applied apparently some resuscitation assistance, as did Mr Tahitahi and then some others who I do not know. It was necessary to endeavour to extricate Mr Hill from the Kia if it was possible because there was the obvious threat or possibility of fire and Mr Hill was obviously very seriously injured with many injuries that required immediate attention even if by unskilled hands. It was within the power of the accused (bearing in mind, as his counsel points out, there is no direct admission or evidence of the accused being affected by drugs) to provide rudimentary assistance which was necessary to assist Mr Hill before emergency services arrived. No reasonable person, in the position of the accused, could contemplate standing around to await the arrival of police and ambulance which of necessity would have been minutes away at the very earliest. Thus, element (iv) in Count 3 has been established beyond reasonable doubt.

  10. As I am satisfied beyond reasonable doubt that the accused was given the “key fob” by Mr Corby. I am satisfied beyond reasonable doubt that the accused took and drove the conveyance without the consent of the “owner”. There is no evidence or suggestion that the accused had any connection with Ms Smith or the registered owner and thus he had no right to drive the vehicle. Thus the elements of Count 4 are established beyond reasonable doubt.

VERDICTS

  1. I find the accused guilty of Counts 1, 3 and 4.

**********

EXHIBIT No.

Date

Tendered

Tendering Party

Tendered Through

Description

A

02/11/2020

Crown

SC Jason Wright

Survey plan of collision scene

A1

02/11/2020

Crown

SC Jason Wright

Survey plan with red arrows indicating direction of travel of Land Rover

B

02/11/2020

Crown

SC Jason Wright

Photos 1-18 of collision scene photos

C

02/11/2020

Crown

SC Jason Wright

Map showing approximate collision location

C1

02/11/2020

Crown

SC Jason Wright

Aerial photo showing approximate collision location

D

03/11/2020

Crown

SC Jason Wright

Photos 1-70 of collision scene photos

E

03/11/2020

Crown

SC Jason Wright

DISC Edited ERISP 1 with accused 20/01/2019

E1

03/11/2020

Crown

SC Jason Wright

Transcript of edited ERISP 1 with accused

F

03/11/2020

Crown

SC Jason Wright

DISC ERISP 2 with Accused 24/04/2019

F1

03/11/2020

Crown

SC Jason Wright

Transcript of ERISP 2 with accused

F2

03/11/2020

Crown

SC Jason Wright

CCTV footage from McDonalds depicting accused

G

03/11/2020

Crown

SC Jason Wright

Google Maps photos and receipts of credit card use and/or movements of Hyundai and Kia sedans

G1

04/11/2020

Crown

SC Jason Wright

Disc of CCTV footage from McDonald’s Bateau Bay dated 15/01/2019

H

04/11/2020

Crown

SC Jason Wright

2nd Bundle of Google maps and photos

H1

04/11/2020

Crown

SC Jason Wright

Aerial photo of collision location with markings by witness

H2

04/11/2020

Crown

SC Jason Wright

Disc of CCTV footage from McCarthy Electrical dated 15/01/2019

J

04/11/2020

Crown

SC Jason Wright

Certificates issued in accordance with S 221 of the Motor Accidents Compensation Act 1999 for the Land Rover and Kia

K

04/11/2020

Crown

SC Jason Wright

Statement of Sergeant Matthew Kelly dated 21/01/2019

K1

04/11/2020

Crown

SC Jason Wright

Statement of SC Ben Bradbury dated 31/01/2019

K2

04/11/2020

Crown

Constable Benjamin Hand

Aerial photo of collision scene with markings by the witness

L

04/11/2020

Crown

Peter Watson

Series of photos of Land Rover taken at Police Holding Yard by witness

L1

04/11/2020

Crown

Peter Watson

List of samples taken and tested from Land Rover

M

04/11/2020

Crown

Emma Cole

Expert Certificate of witness dated 10/06/2019

N

04/11/2020

Crown

Virginia Friedman

Expert Certificate of witness dated 21/09/2020

O

05/11/2020

Crown

Ian Inchley

EDR Validation Sheet for Land Rover Discovery

P

06/11/2020

Crown

DSC Ian Kay

Diagram drawn by witness showing the positions of his vehicle and the Land Rover

Q

09/11/2020

Crown

Tony Maiuu

Snapchat video taken by witness

R

10/11/2020

Crown

Alexandre Gariano

Survey Plan of collision scene with markings by witness

S

11/11/2020

Crown

Statement of Crime Scene Officer Gavin Lennon dated 21/05/2020

T

11/11/2020

Crown

Statement of witness SC Jason Wright dated 09/11/2020

U

11/11/2020

Crown

Statement of witness SC Benjamin Bradbury with annexures dated 31/01/2019

V

11/11/2020

Crown

Map of crash area with markings by witness Wendy Scott

W

12/11/2020

Crown

Statement of Agreed Facts

X

19/11/2020

Crown

John Gilchrist

Aerial photo of collision site with markings made by witness during his evidence via AVL on 05/11/2020

1

03/11/2020

Defence

Allyson Smith

Photos 7-14 depicting inside of white Land Rover

2

10/11/2020

Defence

Adam Smith

Aerial photograph of Central Coast Highway

Decision last updated: 01 February 2021

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Most Recent Citation
Conway v The King [2023] NSWCCA 40
Cases Citing This Decision

1

Conway v The King [2023] NSWCCA 40
Cases Cited

3

Statutory Material Cited

3

Fleming v The Queen [1998] HCA 68
Fleming v The Queen [1998] HCA 68
R v Robert Borkowski [2009] NSWCCA 102