Russell v The King - [2023] NSWCCA 196

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Russell v R [2023] NSWCCA 196
Hearing dates: 29 May 2023
Decision date: 18 August 2023
Before: Button J at [1];
Wilson J at [130];
Sweeney J at [131]
Decision: (1) Leave to appeal against conviction granted.
(2) Appeal dismissed.
Catchwords:
CRIME – appeals – appeal against conviction –where applicant convicted of manslaughter by unlawful and dangerous act – joint criminal enterprise – agreement to intimidate – offence arising from fatal motor vehicle collision during high speed chase – whether jury verdict unreasonable – focus upon CCTV evidence and credibility of Crown witnesses – where CCTV footage shows applicant and co-offender interacting with the deceased and other witnesses shortly before the fatal collision – argument that no intimidation can be discerned from the CCTV product – where witnesses were dishonest to police or provided conflicting evidence or both – open to jury to be satisfied of applicant’s guilt on the evidence provided at trial – verdict not undermined by CCTV footage – appeal dismissed

Cases Cited:
Browne v Dunn (1893) 6 R 67
Dansie v The Queen [2022] HCA 25; 96 ALJR 728
Hanna v R [2023] NSWCCA 182
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
McAuliffe v The Queen (1995) 183 CLR 108; [1995] HCA 37
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12

Category: Principal judgment
Parties: Andrew Russell (Applicant)
Rex (Respondent)
Representation:
Counsel:
T Ramrakha (Applicant)
M Millward (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2019/158319
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Citation:

R v Butler; R v Russell [2021] NSWDC 666

Date of Decision:

09 December 2021

Before:

Haesler SC DCJ

File Number(s):

2019/00158319

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 1 July 2021, following a four week trial by jury, Mr Russell (the applicant) was found guilty of manslaughter. The case against him was that, in the early hours of 18 May 2019, the applicant entered into an agreement with Mr Darren Butler to intimidate and stalk the occupants of a black Ford Territory vehicle. It was asserted that Mr Butler and the applicant had sought to extort money from one of the occupants shortly beforehand. The Ford Territory was pursued at high speeds by a silver Toyota Corolla, driven by Mr Butler. The applicant was a rear seat passenger. At 2:24 AM on 18 May 2019, the Ford Territory collided with a petrol tanker turning onto the Highway. The deceased, Mr Daniel Merrett, was killed instantly.

On 9 December 2021, Judge Haesler SC sentenced the applicant to 4 years’ imprisonment, with a non-parole period of 2 years 11 months.

The applicant sought to appeal their conviction on the ground that the verdict was unreasonable and could not be supported on the evidence…

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 Russell v The King

Details

AGLC: Russell v The King [2023] NSWCCA 196
Case: [2023] NSWCCA 196
Decision Date: 18 August 2023

CaseChat Overview and Summary

In the case of Russell v The King, the applicant, Russell, was convicted of manslaughter by an unlawful and dangerous act in the context of a joint criminal enterprise. The dispute centred on a fatal motor vehicle collision that occurred during a high-speed chase. The central issue was whether the jury's verdict was unreasonable given the evidence presented at trial, particularly focusing on the CCTV footage and the credibility of the Crown's witnesses. The Crown's evidence suggested that the applicant and his co-offender had agreed to intimidate the deceased, which led to the fatal incident. The footage from CCTV cameras showed the applicant and the co-offender interacting with the deceased and other witnesses shortly before the collision.

The court examined whether the CCTV footage undermined the jury's conclusion regarding the applicant's involvement in the intimidation. The footage did not clearly depict any intimidation, and some witnesses provided dishonest or conflicting evidence. However, the court held that it was open to the jury to be satisfied of the applicant's guilt based on the totality of the evidence, including the context of the CCTV footage and the credibility of the witnesses. The court concluded that the jury's verdict was not unreasonable and that the evidence was sufficient to support the conviction. Consequently, the appeal against the conviction was dismissed.

The court's reasoning underscored the importance of the jury's role in evaluating the evidence, particularly in complex cases involving multiple witnesses and CCTV footage. The court emphasised that the jury was entitled to consider all the evidence presented, including the CCTV footage, and assess the credibility of the witnesses. The decision affirmed that the jury's conclusion, if supported by the evidence, could not be easily overturned on appeal. The final orders of the court were that the appeal against the conviction was dismissed, and the original conviction for manslaughter was upheld.

Orders