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Court of Criminal Appeal 18 August 2023

Russell v R

[2023] NSWCCA 196

Assault & violenceHomicidePublic order & justice offences
CRIME APPEALS APPEAL AGAINST CONVICTION JOINT CRIMINAL ENTERPRISE AGREEMENT TO INTIMIDATE WHETHER JURY VERDICT UNREASONABLE

Citation: Russell v R [2023] NSWCCA 196
Court: Court of Criminal Appeal, New South Wales
Date: 18 August 2023
Judge(s): Button J (principal judgment); Wilson J and Sweeney J (agreeing)

Background

In the early hours of 18 May 2019, a silver Toyota Corolla pursued a black Ford Territory at high speed through the Illawarra region of New South Wales. The Corolla was driven by a co-offender, Mr Darren Butler; the applicant, Mr Andrew Russell, was a rear seat passenger. At 2:24 AM, the Ford Territory collided with a petrol tanker, killing a rear seat passenger instantly and seriously injuring two others.

The Crown case was that, shortly before the pursuit, the applicant and Mr Butler had been involved in an attempt to extort money from one of the Territory's occupants, Mr Thomas Johnson, at a service station. On that basis, the Crown alleged the applicant had entered a joint criminal enterprise to intimidate the Territory's occupants, making him complicit in the dangerous driving that caused the death.

Following a four-week jury trial in the District Court at Wollongong, the applicant was found guilty of manslaughter by unlawful and dangerous act. He was sentenced to four years' imprisonment with a non-parole period of two years and eleven months. The applicant sought leave to appeal, contending the jury's verdict was unreasonable and could not be supported by the evidence.

  • Whether the jury's verdict of guilty on the manslaughter count was unreasonable, or could not be supported, having regard to all of the evidence at trial.
  • How much weight the acquittal on a separate count (discharging a firearm in or near a public place) should be given when assessing the remaining conviction.
  • Whether the credibility problems affecting key Crown witnesses, and the content of CCTV footage from the service station, were sufficient to undermine the manslaughter verdict.
  • Whether the Crown needed to prove more than that the applicant agreed in the course of driving adopted by Mr Butler, under the framework of basic (as opposed to extended) joint criminal enterprise.

Decision

Button J (with Wilson and Sweeney JJ agreeing) granted leave to appeal but dismissed the appeal, finding the manslaughter verdict was open to the jury on the evidence. The Court assessed the appeal on the basis of a basic joint criminal enterprise: the Crown was required to prove no more than that the applicant agreed in the course of the dangerous driving by Mr Butler that resulted in death. That was described as a comparatively undemanding mental element against which the jury needed to be satisfied to the criminal standard.

The Court acknowledged that the principal Crown witness, Mr Johnson, had credibility difficulties. However, it held that assessing witness credibility was quintessentially a matter for the jury, which had the significant advantage of seeing and hearing evidence in person. The evidence of Mr Jordyn Clulow, who received a phone call from Mr Johnson on the night asking for a bank account password, significantly corroborated Johnson's account that he was being intimidated at the service station regarding money, at least by Mr Butler.

The applicant's acquittal on the firearm count was given full weight. For abundant caution, Button J resolved the appeal on the assumption that the applicant did not possess any item that could even have been mistaken for a firearm. Despite that assumption, multiple other circumstances supported the verdict, including the 000 emergency calls demonstrating sustained dangerous driving by Mr Butler, a child being removed from the Territory before the fatal collision, and the deceased warning his partner to lock their home before the crash. Those circumstances supported the inference that the Territory's occupants were already frightened, consistent with a joint enterprise to intimidate.

The CCTV footage from the service station was found not to undermine the verdict to any substantial degree. Suggestions that the Territory's occupants had been dishonest about believing they were shot at were resolved in favour of honest mistake, consistent with the acquittal on the firearm count being given full weight.

Orders Made

  • Leave to appeal against conviction granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a basic joint criminal enterprise to commit manslaughter by unlawful and dangerous act requires proof of the accused's agreement in the course of the principal offender's driving, without the need to establish the extended form of the doctrine.
  • Credibility assessments of witnesses who gave conflicting or dishonest accounts to police remain quintessentially within the province of the jury, which holds a marked advantage over an appellate court through its direct observation of witnesses.
  • CCTV footage that does not clearly show intimidating behaviour does not automatically undermine a jury verdict where other circumstantial and corroborating evidence supports guilt.
  • An acquittal on a related count must be given full weight in any appellate review of a co-existing conviction; here, the Court went further and resolved the appeal on the most favourable factual assumption for the applicant that the acquittal could support.
  • Corroborating evidence from a third party, such as a phone call consistent with a complainant's account of being pressured for money, can support a Crown witness's credibility even where that witness had other reliability problems.

Legislation and Cases Referenced

Cases:
- 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 (the foundational joint criminal enterprise authority)
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 (the leading authority on unreasonable verdict appeals)

Legislation: No specific legislation was identified in the materials provided.