Citation: Conway v R [2023] NSWCCA 40
Court: Court of Criminal Appeal, New South Wales
Date: 10 March 2023
Judges: Ward P, Davies J, Button J
Background
The applicant was convicted in the District Court, following a judge-alone trial, of manslaughter, failing to stop and assist after a vehicle impact occasioning death, and taking a conveyance without the owner's consent. The convictions arose from a fatal head-on collision in the early hours of 15 January 2019, when a stolen Land Rover travelling at speed on the wrong side of Wyong Road struck a Kia driven by another motorist, who was killed.
The Crown's case was entirely circumstantial. It alleged that the applicant was the sole occupant and driver of the Land Rover at the time of the collision, that he had taken the vehicle without the owner's consent earlier that evening, and that he fled the scene without rendering assistance. CCTV footage placed the applicant in the driver's seat of the Land Rover approximately 45 minutes before the collision, purchasing items at a McDonald's drive-through several kilometres from the crash site.
The applicant denied being the driver at the time of impact. He accepted, by way of a guilty plea to an alternative count, that he had been a passenger in the Land Rover knowing it to have been taken without consent. His defence at trial was that the evidence left open a reasonable doubt as to whether he, rather than some other person, was driving at the moment of the collision.
Legal Issues
- Whether the convictions were unreasonable or unable to be supported by the evidence, applying the test in M v The Queen (1994) 181 CLR 487
- Whether, in a circumstantial case, the evidence left open a reasonable hypothesis consistent with innocence, specifically that another person was driving at the time of the collision
- Whether the conviction on the count of taking a conveyance without consent was reasonably open, given the evidence of witnesses whose credibility the trial judge found to be compromised
Decision
Button J (with whom Ward P and Davies J agreed) identified the governing principles clearly: the Court of Criminal Appeal was required to bring its own analysis to the evidence and determine whether it was satisfied beyond reasonable doubt of the applicant's guilt. That analysis does not involve scrutinising the trial judge's reasons for error; it requires an independent review of the evidence, as confirmed by the High Court in Dansie v The Queen [2022] HCA 25. Because the trial was conducted by a judge alone rather than a jury, the constitutional deference ordinarily afforded to a jury did not apply. However, the Court still gave weight to the trial judge's demeanour-based assessments of witnesses, which a reading of the appeal papers alone could not replicate.
On the central issue of identity, the Court found that the circumstantial evidence, taken together, was sufficient to exclude any reasonable hypothesis that someone other than the applicant was driving. CCTV placed the applicant at the wheel 45 minutes before the crash. All other associates who had been present that evening were conclusively accounted for by CCTV and timed transaction records showing them elsewhere at the time of the collision. The applicant had lied to police in his first interview, initially denying ever having been in the Land Rover at all, a denial plainly false even on his own account.
The conviction for taking the Land Rover without consent received separate attention. Two witnesses, each found by the trial judge to have given evidence from prison with a protective certificate and each assessed as unreliable, had given evidence the applicant argued supported a reasonable doubt about who took the vehicle. The trial judge found these witnesses were likely bending the truth in the applicant's favour rather than against him, describing them as least impressive precisely when they were attempting not to implicate the accused. Button J held that this nuanced assessment, grounded in demeanour findings, was well open to the trial judge and should be given weight on appeal.
All three members of the Court were independently satisfied that the verdicts were open on the evidence. Leave to appeal was granted given the length of the sentence and the significance of examining the verdicts closely, but the appeal itself was dismissed.
Orders Made
- Leave to appeal against conviction granted
- Appeal dismissed
Key Takeaways
- In appeals against conviction on the ground that a verdict is unreasonable or cannot be supported, the Court of Criminal Appeal conducts its own independent review of the evidence rather than reviewing the trial judge's reasons for legal error, consistent with Dansie v The Queen [2022] HCA 25.
- Where a trial is conducted by a judge alone, the deference ordinarily afforded to a jury as the constitutional tribunal of fact does not apply; however, appellate courts still give weight to demeanour-based credibility findings made at trial.
- A circumstantial Crown case can support a conviction where all reasonable alternative hypotheses are excluded by the evidence, including by documentary and CCTV evidence conclusively placing other suspects elsewhere at the relevant time.
- No error was established in the trial judge's approach of accepting some parts of a witness's evidence while rejecting other parts as deliberately false, particularly where those findings were grounded in observed demeanour.
- Sufficient evidence existed to sustain all three contested convictions, including the count of taking a conveyance without consent, notwithstanding the involvement of witnesses of questionable credibility.
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1986 (NSW), s 166
Cases
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- Dansie v The Queen [2022] HCA 25; (2022) 403 ALR 21
- The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
- R v Conway [2020] NSWDC 816 (the trial decision under appeal)