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 Act 1986 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. 4. 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. 5. 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. 6. 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. 7. 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. 8. 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. 5. I will deal with the fingerprint and "DNA" evidence later in the context of examining the relevant evidence in consideration of the identification of the driver of the Land Rover, as I will deal with relevant police evidence concerned with the observation of the scene relevant to the identification of driver, CCTV evidence in this matter and civilian evidence from persons who came across the scene of the collision that is relevant to consideration of the issue of the driver of the Land Rover and the issue of whether there was one person or two people in the Land Rover at the time of the collision. 6. Mr Inchley, an employee of "Jaguar Land Rover", the manufacturer of the Land Rover, was a qualified technical support employee who in May 2019, with the use of diagnostic equipment, downloaded information relevant to the performance of the Land Rover immediately before and up to the point of collision. His evidence was that the data he downloaded, bearing in mind the motor vehicle had remained at the police holding yard and had obviously not been driven, represented data concerning the vehicle's performance from five seconds before and up to the collision. Amongst the matters reflected in Exhibit O, a hard copy of data collected which has been called the 'Bosch – Land Rover EDR Validation Sheet', was that three airbags were deployed 16/1000th sec after the collision, the front driver's steering wheel airbag, the front passenger's (glovebox) airbag and the front driver's side foot rest airbag. The front driver's side and front passenger side seat belts were not "latched" at the time of impact. The vehicle was travelling at 120 km/h five seconds before impact, just below 100 km/h at 2 seconds before impact and at 73.41 km/h at the time of impact. He said that for the purposes of adjusting the seating, one did not need to have the engine on, just power from the battery. The brake was applied one second before impact. 7. Mr Inchley's examination and conclusions are supported in a statement tendered from Crime Scene Officer Gavin Lennon (Exhibit S), who is an accredited specialist in "collision reconstruction". His qualifications are not questioned. He examined the data obtained by Mr Inchley and assessed it by reference to his crime scene examination (in respect of which he prepared the survey plans Exhibit A and A1) and with analysis of available CCTV coverage of the area. He expressed the opinion that whilst the 'EDR' data obtained from Mr Inchley, coming as it did in relation to speed from "wheel speed sensors" can be affected by what he described as "wheel slip", the lack of relevant tyre mark evidence with no evidence of apparent "side slipping", indicated that "wheel slip" was unlikely to be a factor influencing the data recorded. From his analysis of the CCTV footage, endeavouring to assess the average speed of the vehicle on the basis of the vision capturing the travel of the Land Rover towards the north-west cessation of the south east bound bus lane, just beyond which the Land Rover collided with the Kia, driven by the deceased, he assessed at that point the speed range of being between 99 km/h and 111 km/h. He concluded in diagrammatic and 'table' form that according to his calculations, exposed in the statement, there was a direct correlation between the qualitative assessment of the field of view of the CCTV footage of the movement of the Land Rover and the data contained in the EDR document produced by Mr Inchley. As the "aggravating factor" pursuant to s 52A must exist at the time of impact (s 52A (2) Crimes Act 1900) the prosecution could not prove the vehicle was travelling at 45 km per hour or more at impact. Evidence of Eyewitnesses 1. A number of people gave evidence who were civilian and police witnesses who were eyewitnesses either to events immediately before, during or after the collision. Ironically, two police officers are witnesses who saw the Land Rover before the collision driving in a dangerous manner. Detective Senior Constable Kay was driving in Killarney Vale at about 4:05am when he saw a vehicle that I accept was the Land Rover driving towards him on the incorrect side of the road before pulling to the correct side of the road travelling "in excess of 70 km/h" in Sherry Street Killarney Vale. Senior Constable Scarfe observed the Land Rover whilst approaching the Mingara Drive, Wyong Road intersection having travelled from the Beckingham Street intersection with Wyong Road to the north of the scene of the collision. This was the direction the deceased was driving. He was at the relevant time to the south of the point of impact but saw the Land Rover travelling in the bus lane at a speed estimated to be 80 to 90 km/h, it had 'HID or LED' headlights on. After the vehicle passed him continuing along the bus lane he saw another "southbound vehicle" about 100 metres behind him move lanes, as he did, to avoid it. He and the second vehicle stopped at the Mingara Drive traffic lights and then continued further along Wyong Road away from the collision site and did not see the collision. He passed the collision site some hours later and saw the same white Land Rover on the side of the road approximately 400 to 500 metres "north" of where it had passed him. 2. A person who saw a white car similar to the Land Rover between 3:20am and 3:30am on The Entrance Road at Bateau Bay was Ben Johnson who had returned home and was sitting in his driveway with his back to the roadway when a white four-wheel-drive coming from the north heading south passed by "very quickly", the movement of which "shook" his motor vehicle. He gave an estimate of speed that could not be accepted as accurate, given the position in which he was sitting. He was reasonably sure of the time because he had been on the phone to his brother only a short time before. 3. Another witness who saw a car similar to that of the Land Rover was Adam Smith, driving in a southerly direction along what he called the Central Coast Highway, which is in fact The Entrance Road, on his way home from work between 3:55am and 4:00am. He saw two sets of headlights, one on the correct side of the road the other on the wrong side of the road. He stopped his motor vehicle in the southbound lane and flashed his headlights and yellow "work lights". He was afraid that the vehicle may not be able to get back onto the correct side because of a long median strip in the vicinity of Surf Road Long Jetty. The oncoming vehicle on the wrong side of the road passed by his vehicle, still on the wrong side of the road, but to the passenger side of his vehicle then veered back to the correct side of the road. He described that vehicle as a "white Range Rover (sic), late-model". He believed that he saw two people in the front, the car passed within a few metres, or about 'a car length' from him at about 40 km per hour. He told police that he had a "perfect view into the passenger side", or in Court a "clear" view and he had purposefully stopped under a street light to be better seen. He saw a passenger in the passenger's front seat, but was not sure whether it was a male or female. He said that person "definitely" had a "pink shirt" on, or particularly he saw a section of pink 'sleeve' material. The driver had "short cropped" hair. He said the person was young and appeared small in the seat. He thought there may have been passengers in the back, although he may have mistaken headrests for people as the car went past. The incident he described occurred on his estimate "about 10 km" from the collision site on Wyong Road, which he heard about later that day. 4. John Gilchrist was travelling in a northerly direction on his way to work at about 4:30am when in the vicinity of the Mingara Sports and Recreation Club, to his left hand side, he noticed "a certain amount of commotion on the road ahead". He realised afterwards that two vehicles were involved in a collision and he passed the collision site reducing speed "significantly". He observed on the opposite side of the road from the collision 3 to 6 vehicles which appeared to have stopped and there were various persons standing in the vicinity of those vehicles. He slowed down because of the pedestrians on the road and noticed amongst those persons a man who was "shirtless". He did not see that person crossover from the accident site and did not have any indication at all that any of the people on the side of the road were necessarily involved directly in the collision. He had told police when spoken to about the matter some days later, in response to a story in a newspaper about the collision, that the shirtless person had "crossed the road but to the opposite side of the road to where the accident occurred", but he also said that he "presumed that he was one of the people who pulled up to render assistance", but that he did not see him actually cross the road. Rather, that if he was involved in the accident he would have had to cross the road, not knowing whether he had done so or not. 5. Only two witnesses saw the collision. One was Tony Maiuu who, only a few days before giving evidence produced a 'Snapchat' video he took of the immediate aftermath of the collision (Exhibit Q). That recording only lasts for a number of seconds showing the Land Rover and the Kia, after the collision. The Land Rover is stationary as is the Kia and they are in the positions shown in police photos, such as in Exhibit B. The only door that can be seen on the driver side that is open is the driver's door, not the rear driver's side door. One cannot see the passenger's side, or near side of the vehicle. No person can be seen in the vicinity of the Land Rover. The Kia can be seen with steam coming out of it. This witness was stationary at the Mingara/Windsor Road intersection waiting for the lights to change when the white "Range Rover", pulled up alongside of him and then, when the lights changed, turned right then left driving onto the incorrect side of Wyong Road "travelling down the bus lane" and driving "over the speed limit" ahead of him before coming into collision with the vehicle that the witness later identified as the Kia. He saw the Land Rover "flip" and then move towards the trees. He described himself as a "couple of seconds away" and on seeing the collision got out his mobile phone and approximately "6 to 7 seconds" later activating the phone to the "Snapchat" setting and filming what is to be seen in Exhibit Q which lasts a matter of about 5 or so seconds. Coming up to the collision he saw a "bloke" walking away from the car. This person "got out of the vehicle on the driver side, out of the driver's door". He could not see his face because it was dark although there was artificial light on the scene. The person was wearing "grey shorts" and a "singlet". He said in an interview with police on 25 January that the person was "slim", "175 cm" wearing "shorts" and that he "thought he had no shirt on". Mr Mauii went over to aid Mr Hill and was the first person there, later joined by another person. He tried to open the door and ultimately tried to give the deceased CPR. He said afterwards he went over to the Land Rover about 5 or 10 minutes after going to the Kia, he "opened" up the front passenger's door but there was nobody in the car. 6. A witness who did not give a statement until 9 November 2020 was Wendy Scott. I am satisfied that she was an eyewitness to the collision. The statement of Senior Constable Wright, with its attachments including a COPS entry of 15 January 2019, the evidence of Senior Constable Benjamin Bradbury, as well as the evidence of Ms Scott satisfies me that she was present to see the matters of which she speaks. 7. She was driving in a northerly direction on the correct side of the road when her vehicle was passed on the opposite side of the road "about 200 metres" from the intersection of Mingara Drive and Wyong Road. She slowed to 40 or 50 km/h and saw the collision which she described, in my view, with accurate detail between a white vehicle and the Kia. Immediately after the collision as she was slowing down she saw a person exit the white "Discovery" on the driver's side and walk into bushland on that side of the road. She described that person as a "bit taller" than herself (she said she was about 5 foot) of medium build. He did not have a shirt on, he could have had long pants or shorts, he was "shaved headed" and had a "sort of glistening body… sweaty". She said initially that she saw that person go into the bushland. However, when she gave her initial account to police over the telephone she said that person "got out of the vehicle and either walked to the front of the car or through the bushes". She didn't see anybody else. She said that she had the collision under observation for "a matter of minutes" and that after she pulled over she stayed in her vehicle for "five minutes". She marked a plan she had drawn with the direction in which the person left the scene, consistent with a person walking towards the trees towards the cul-de-sac behind them (Exhibit V). She did not notice the person carrying anything. She drove off before Mr Mauii got to the Kia. She reported her observations to police over the phone a matter of hours later, but as explained in the other evidence to which I referred, her contact with the police had been overlooked. Primarily because the relevant 'Event Number' with her information on it was created with a different reference number to that made by the Crash Investigation police at Wyong Police Station. 8. Kenneth Tahitahi, was driving behind the Kia returning from work and came across the collision very shortly afterwards. He stopped his car he said about 10 to 15 metres on the northern side of the collision and put on his hazard lights. He saw a gold/orange Kia and a white Range Rover in the positions reflected in post collision photographs. He saw a person he described as "an Islander" (almost certainly Tony Maiuu) who like this witness went to the aid of the driver of the Kia. Shortly afterwards people came from "every direction" with police arriving on the scene a number of minutes later. He saw the open driver's door of the white car, having left the Kia to make a phone call to emergency services. He said he got to within 3 to 4 m of the "Range Rover" when he noticed the driver's door was open. He said he thought there may have been another door open but he was "not too sure, not 100% sure". He told police in his statement that the "driver's door (was) open and another door (was) open but I don't know which one". 9. Alexandre Gariano was driving a Hiace van, a type of "minibus", and was driving in the same direction as the Kia and Mr Tahtahi. He said he saw a car coming in the opposite direction but he did not see the collision. He made an "assumption" that the white "Range Rover" that he subsequently saw had crossed over the median strip. He saw a "maroon Kia". He stopped 15 metres away from that car, with the white car further away again. He initially stayed in his vehicle for a while and then got out. He saw the passenger and driver's side front doors open and he saw two people running from the white car. He marked Exhibit R with the course of their exit. He did not see their faces. They started off about a metre apart but they then "drifted apart". He initially said he saw a person with "like a black singlet" but he couldn't recall what the other person had on. He thought the person with the black singlet was wearing "pants" and he thinks the pants were "long". He described the other person as having a "light coloured top". In cross-examination he agreed that when he gave his statement on 29 January 2019 he described one person as having a "black T-shirt" and the other person having "no shirt at all". He agreed in cross-examination that the person with the black T-shirt came from the "passenger side" of the car. In Exhibit R he marked the person with the black T-shirt as moving from the driver's side of the vehicle towards the tree lined area adjacent to the collision site. The DNA and Fingerprint Evidence 1. The evidence relating to the identification of DNA profiles associated with the white Land Rover was not in dispute. Virginia Friedman, a forensic biologist who analysed the results of testing, gave evidence in a forthright and knowledgeable manner. There were in fact two separate sampling tests undertaken on the Land Rover, one involving the use of "swabs" in January 2019 and the other involving the use of what were described as "tape lifts" at a later time in May 2019. No issue arises to my mind as to the integrity of the separate testing. I was in fact more fully informed than I have previously been as to the character of "swabbing" and "tape lifting". The evidence shows that the manner of these methods involve far more extensive surveying of the subject areas of the vehicle examined than I had previously believed occurred. Rather than taking a swab from a designated area on a particular object, the swabbing occurs across the surface of the object as does the tape lifting, until such time, in that latter instance, that the tape used (which is like adhesive tape) has ceased to have adhesive qualities. 2. With regard to the fingerprint evidence based upon the "latent" fingerprints that were taken from various items within the Land Rover and outside the Land Rover, a large number of samples were taken both for fingerprint and DNA examination, for comparison with fingerprints obtained from the accused on 9 July 2019 and other people. 3. A latent fingerprint found on the exterior of the rear near-side door of the Land Rover was not identified as matching existing records (including national fingerprint records), but the left thumb print of the accused was found on the exterior surface of the boot of the vehicle below the off-side (driver's side) lights at the rear of the vehicle (fingerprint F3). His right palm print was identified as being on the rear off-side panel near the fuel "door" of the Land Rover as well. On the inside left lens of a pair of sunglasses shown in the photographs found inside the vehicle after the collision on the passenger's seat there was an inconclusive comparison with the accused's left thumb print. That means there is insufficient friction ridge information in the latent fingerprint to identify or exclude the person as being the source of the latent fingerprint. 4. With regard to the DNA examination of Ms Friedman, she gave evidence, that I need not repeat, as to where DNA comes from, factors that might affect the deposit of DNA, the issue of secondary and tertiary transfer, the fact that some people may be categorised as "shedders" and others as "non-shedders" (that is have difficulty depositing DNA) the method of determining in a mixture of DNA profiles, the number of contributors and delineating between each contributor, amongst other matters. In her Expert Certificate of her analysis of samples taken (Exhibit N) she referred to 33 trace swabs (including some "sub samples") and 7 tape lifts submitted for examination as well as a "swatch" of a suspected bloodstain on a pink hand towel taken from within the Land Rover. A number of tests were unsuccessful or not suitable for comparison due to the low level of DNA present and/or the complexity of the sample. 5. With regard to item R7 (a swab), she identified a DNA mixture found on the driver's seat belt that contained the DNA profile of Allyson Smith, the lawful custodian of the vehicle, and the accused as persons who cannot be excluded as contributors to the mixture. Assuming there are three contributors and that Ms Smith is one of the contributors it is greater than 100 million times more likely to obtain the mixed profile if it originated from Ms Smith, Mr Conway and an unknown unrelated individual, rather than originating from Ms Smith and two unknown unrelated individuals in the Australian population. The third person may have been male or female. She could not say. 6. Another trace swab from the driver's seat (R8) recovered the profile of three individuals where Ms Smith and the accused cannot be excluded as contributors to the mixture; the DNA of the additional contributor was not suitable for comparison. A trace swab from the front passenger seat airbag (R13) revealed a DNA profile not suitable for comparison, but probably a male. A mixed DNA profile was recovered from a trace swab of the front passenger's seat but was not suitable for comparison due to the low level and complexity. It was either male or female (R14). Another swab from the front passenger seat belt produced a mixed DNA profile not suitable for comparison but which was both male and female. 7. A trace swab from the interior front passenger side door handle revealed the DNA profile of two individuals, the major contributor being an unknown female, with the other minor contributor not suitable for comparison but probably a male (R16). 8. Swabs of the rear seats and seatbelts and, inside rear door handles produced mixed DNA profiles not suitable for comparison. But from the rear centre seat the DNA profile of the owner's daughter could not be excluded as a contributor from a mixture of two individuals (R23). 9. Other swabs are taken of the straw located with the 'McDonald's cup' in what was described as "subsamples" revealed the same DNA profile as the accused (R30, 31). A trace swab of the "key fob" produced a mix DNA profile unsuitable for comparison. But the partial DNA profile of the accused was recovered from a trace swab of the nose bridge or the ear section of the sunglasses that were located on the seat of the car (R33). 10. Tape lifts on different sides of the pink hand towel revealed a mixture of DNA profiles of at least three individuals, with Allyson Smith and the accused unable to be excluded as contributors to the mixture (R34, 35). The DNA profile of the accused was the major contributor to the "swatch" of the bloodstain on the pink hand towel, with the DNA profile of Ms Smith unable to be excluded as the minor contributor to the mixture (R36). 11. A tape lift of the driver's steering wheel airbag (R37) revealed the DNA of 'individual G' (an unknown person) as the major contributor, minor contributors were unable to be identified. On one side of the driver's footwell airbag (side A) DNA was recovered with the same profile as Ms Smith (R38) and on side B of that airbag three individuals were identified. The major contributor being an unknown male contributor (individual F) with the other contributors unable to be identified (R39). A tape lift from the driver's seat revealed the DNA mixture from at least two individuals, the major contributor having the same profile as 'individual F'. But the other minor contributor unable to be identified (R40). The tape lift from the driver's seat belt produced a mixed DNA profile unsuitable for comparison (R41). EVIDENCE FROM THE ACCUSED'S INTERVIEWS 1. As earlier mentioned, the accused gave two interviews to the police; the first to detectives enquiring about unrelated matters on 20 January 2019 (Exhibit E) and the second when he was interviewed by Senior Constable Wright after Mr Wright had interviewed Ryan Corby on 1 April 2019. That interview was on 24 April 2019 (Exhibit F). 2. In the first interview, which obviously only forms a small part of the entire interviewing process, and I was only shown the relevant parts, the accused said of the collision that he had "heard about it" (Q665 – Exhibit E and E1), that he had been made to "touch the car" (Q671) and gave a lengthy explanation as to his connection with the vehicle (Q714), saying he didn't know that the Land Rover was stolen (Q731), amongst other matters. He denied that he had ever driven the vehicle at any time (Q714). In fact it is very difficult to identify a coherent admission of being present at the time of the collision. But there are admissions of being in the presence of the driver of the Land Rover on earlier occasions. In answer to Q 714, he indentifies the driver as 'RC' and gives other clues as to his identity. I am satisfied he is referring to Ryan Corby and it was not argued to the contrary. 3. When interviewed on 24 April 2019 (Exhibit F, F1), in a lengthy answer to Q 19, he said amongst other things that he was threatened by the driver, that he could have jumped out of the car but he didn't, that he had wiped the car down with a cloth and had jumped back and forth from the front seat to the back seat. He claimed the driver was wearing a balaclava and gloves to avoid recognition and leaving fingerprints and DNA material, "he's ballied up, gloved up the whole time", the driver had "stole" the car, that after the collision he fell on the driver's lap, "I was pretty much laying down on top of him, but my top half was on his lap", he opened the door and he thought that the driver was chasing him to, "bash me or something", yet, "I thought he was dead in the car, but apparently he's gotten out of the car ran and pretty much passed out…." 1. The accused also said in that answer that he was at a house at Killarney Vale "or something like that" when the car was stolen, that he wanted to purchase some ice so he called up the person he'd seen the day before who had nearly killed him in another car and that person said he would come and sell some ice to him like he had before. When he got in the car the person driving said it was "his mums", they went to "Maccas", but the accused said he was asked to drive through the drive-through because it was, "his mum's car and his mum doesn't know that he has it and that his sister worked at Maccas and he doesn't "wanna get seen (sic)". The other person asked for a lemonade and the accused got himself a water. During the course of the drive the other person was, "driving like an idiot", he said he was, "scared because I was on the run at the time for something else". He also said, "I wipe down the car as much as I could". He said the driver threatened to, "physically assault me a couple times; he called me a dog a few times. He swung his fist at me a couple of times. I can't really remember if it connected, I knew a couple missed. I jumped in the backseat probably like five times". The accused said that he was "on the run" and that, "I didn't want to get seen by anyone or go anywhere. I was too paranoid". He claimed that he knew about the crash. He said that the driver was, "pulled over, he gets done with all the stolen (goods) out of the car he stole and drove". He claimed in this answer that detectives tell 'RC'….. "We know you've crashed this car the night before you gonna be getting charged with murder or some bullshit to scare him. And he sat down … I'm a weak link pretty much to him. I've got nothing to do with the family that actually sat out and said it was just me".… "They're loyal to this bloke. He went out with their daughter for eight years"… "They did not like me at all. They had no loyalty …..five or six of them sat down, including the actual driver and said I was the one that stole the car and crashed the car….. killed somebody and I found that out the next day after I woke up". He described the family as; "disgusting", that they're "really known by the police"… "sat down and blame me for doing something that I was involved in, but did not physically do. I wanted to get out of the car the whole time". 1. At Q 20 he repeated the claim that the driver was; "ballied up the whole time he stole the car, drove the car when it crashed". 1. He had heard from a news report that the driver quote "had no shirt on apparently" but that he had a black jumper on, which he referred to the police knowing about, them having seen him driving through the McDonald's restaurant on CCTV footage. In answer to Q 21, like his answer to Q 20, an extension to his answer to Q 19, he referred to what he had learnt from a news report and then said; "and I've been sitting here for three months looking at how my DNA and prints are in a car, how he set me up, you know, not for a car crash, but not to be tied to a car that he's stolen in any way, whatever armed robberies his about to go do". 1. Later in the interview he said that when he was picked up by the driver there was another person sitting in the back seat who had a "bally on" and "gloves on", but he got out of the car before "Maccas" (Q 39, 40). He said that they were planning to do an armed robbery, he didn't know whether they had any weapons but he was, "pretty sure there was something like a pole or something in the back… It wasn't a pole, it was something… I just don't wanna say what it was" (Q41). He said he had a black jumper on and that he was wearing, "long pants"… "Trackies maybe" (Q45-48). He said that he wiped the car down with the "fucking cloth in the car" that was already in the car and that when he was in the passenger seat he, "ripped up a few bits of paper and all that and threw it at my feet. There was a few things in there, I don't know why, you know… I just ripped 'em up" (Q50-52) 1. He said that he, the person in the backseat, did not drink the lemonade he bought, that he did and that he believed the person in the backseat was "setting" him up. He said that he'd be surprised if the police got any DNA from this "bloke" because he had a "bally and gloves on" (Q55). He did not know whose sunglasses were in the car and he wasn't sure whether they were in the car (Q60-61) and said that he had no interaction with this person's friends during that night (Q71). He said he knew the person wearing the balaclava for about a week before the collision and said that if he had known the person he would have put together that his sister didn't work at "Maccas" but that was an excuse for him to drive through "Maccas", "he doesn't (want to) get seen, his mum doesn't know he has the car". (Q80-81) 1. He said after the collision he thought the driver was chasing him and he turned around a number of times and he thought he saw him that he didn't think it was him (Q85). He didn't stop to see how the other driver was because he was "in shock" and he was "scared that the driver was going to get him and hurt him." 1. He said he suffered pain in his legs and hip from the collision. He said the person driving the car was wearing a "hoodie of some sort, but I can't say what colour. "I'd say dark" (Q96). He said that he had a suspicion that only his own DNA and his fingerprints would be in the car. He said "cops… don't care about who really did it, as long as they're got enough evidence for their bosses and bullshit like that to close the case and get the pressure off 'em. They will just go with what they can prove in court I guess" (Q97). 1. He said that the driver wasn't scared of him, that the family of the driver blamed him for being the driver. "This family is the family of his girlfriend of eight years" he said: "they look out for each other and they're all criminals. They're all criminals… They get believed, man, it's bullshit" (Q98-99). He discussed his drug use over this period of time; that he'd been on the run for three weeks, that he had nothing to eat for 24 hours before the accident, he'd been eating once every three days and that he would be up awake for three days, looking out for the police… "I was in psychosis. I was in and out of psychosis" (Q101 – 115). He said he did not have a mobile phone in the weeks before the collision; he had to use a payphone to ring people. That he only got into the car with this person because he wanted drugs and he thought that this person would sell him "ice", that he was "ballied up", that he was scared he was going to "kidnap" him, he had been threatened by the driver the day before when he had been driving erratically (Q121). Explained again that the day before "in the daytime" the driver was driving "like an idiot, he nearly killed me" and he was begging the driver to get out of the car in the daytime and he promised himself not to get in a car with him again just because of the way he drove". He said; "I drive normally like a granny. I don't need to run, if I was, if a cop was to come behind me, pullover, get out the car and hit legs. But this bloke, he would not, never stop. I was in a couple of cars with him and they were all stolen"… (Q123). He said that he was in the car for a half an hour or 40 minutes before he realised the Land Rover was stolen. He thought about jumping out of the car a couple of times. "But I just thought I would just I would just wipe it down.. I'll get back to where… I'm safe, the safe house. I'll get dropped there and that'll be it, but he just kept going and got real bad at the end and he wouldn't stop" (Q134). He described how the other person drove the car in a dangerous manner but said the only places that he could remember passing through were Long Jetty and Killarney Vale until, "around the place where he crashed". He described what happened leading up to the collision after passing through the "Mingara lights", driving along a quarter of that straight "jumping" up to get into the back and then becoming "wedged" with his back to the windscreen and then the collision, waking up on the driver's lap and his legs, "Sorta stretched over but bent into the other side of the car. Like the passenger foot well. And I'm laying on him and he was all fucked up and then I got up and crawled out the driver's side" (Q139). He was measured during the interview and said that he was about 5'6" or 5'7" and believed he weighed about 60 kg at the time of the collision. Later he was asked about the person who drove the car and the officer read to him his answer to Q714 in the first interview of 20 January 2019. In that interview he had said the driver was "Capital R ... Capital C". He was asked by the interviewer at Q 225 if that person was the person he'd been referring to during the interview and he said, "yeah"… "I know his name everyone knows his name in this room I just don't want to talk about it", claiming that he felt at risk if that person was re-interviewed again based upon what he had told the police (Q 225-228). EVIDENCE OF PEOPLE ALLEGEDLY ASSOCIATED WITH THE ACCUSED. 1. On the Crown case during the evening of 14 January 2019 and/or in the early hours of 15 January 2019, the accused was in association with Amanda Haley, Richard Bourke, Ryan Corby and Tanika Matthews. Of these four, only Ms Haley and Mr Corby gave evidence, both from custody. Ms Matthews and Mr Bourke had not been able to be located by the NSW Police Force. Before I turn to the evidence of those two people there is a body of direct and circumstantial evidence as to their movements in the hours before and after the fatal collision. I am satisfied beyond reasonable doubt that none of these people were directly involved in the collision itself, but that Corby had direct involvement with the taking of the Land Rover from Terrigal. It is clear from a combination of CCTV footage and tax invoices from McDonald's restaurant at Bateau Bay (4.2 km from the collision site), the Caltex service station at Forresters Beach (6.9 or 7.8 km from the collision site depending upon which route was taken) and some CCTV footage from a business at Wamberal (the Wamberal Wine Palace) at least 10.2 km from the collision site or up to 12.7 km from the collision site depending upon the route taken, and at the BP service station at Berkeley Vale; that the white Kia and white Hyundai, driven respectively by Ryan Corby and Richard Bourke, were at Bateau Bay McDonald's at about 3:29am (on the basis of them being there 15 minutes before the Land Rover relying on the difference in between the "time stamps" of the CCTV images for both events), at the Caltex Service Station at Forresters Beach at about 3:57am, returning to there at 4:28 am and at the BP service station at 4:53am. Tracing the movements of the two white cars and their occupants is not entirely dependent upon the reliability and accuracy of recollection of Ms Haley and Mr Corby but they accepted in their evidence that chronology. 2. Ms Haley had only met the accused once before this night, but had known Tanika Matthews for 10 years (her best friend) and had been in a relationship with Richard Bourke for 12 years. She had also known Mr Corby for 10 years. She had been, on the evening of 14 January 2019, at Tanika Matthews' house at Berkeley Vale, and said the accused was there but she did not know him very well having only met him once before or perhaps that one time for the first time. She said the three men, Corby, Bourke and the accused left the premises and she did not see the accused again. She said during the early hours of 15 January she was in the company of the other three the entire time that they were travelling around to different service stations and she remained in their company until later in the day. Although, when she was arrested that day she had already parted company with Richard Bourke. She said those three people were with her for "many hours". However, she said she did not see the accused after he left the Berkeley Vale address. When cross-examined with leave by the prosecutor, (pursuant to s.38 Evidence Act 1995) she admitted that she had made a statement in late July 2019 where she had stated that whilst they were travelling from the McDonald's store to Forresters Beach they were overtaken by the white Land Rover, travelling at speed on the wrong side of the road, the car was occupied by the accused and she did not see anybody else inside the car. She said in her evidence that whilst she told the police officer those details, in fact, she couldn't actually see who was in the vehicle. She was relaying information that had been given to her by Mr Bourke to the effect that the accused had taken the Land Rover. This is second hand hearsay and not admissible, it was conceded by the Crown. But it is admissible as to the fact that she was told this, being a relevant matter to assessing the basis upon which she made the representation to the police officer. She told the court that they were on 'ice', that she had injected and smoked it and that in any event it was not possible to see who was driving the car given the time it took to overtake the car she was inside and the Land Rover with its tinted windows. She said: "We were all fucked out of our heads". She asked rhetorically (in the circumstances), "How could I see who was in the car?" It was put to her by the Crown that she had changed her account because she was trying to protect Mr Conway. She said that she had no reason to protect him as she "barely" knew him. I warn myself that she was cross-examined as an unfavourable witness to the Crown and had made prior inconsistent statements. Haley had been prosecuted for the credit card frauds. 3. Mr Corby initially was a very reluctant witness indicating that he did not wish to take an oath or an affirmation. After some discussion with him, ultimately he agreed to take an oath, but was an unimpressive witness in some respects because it was quite clear that he told untruths to the Court under oath concerning the identity and/or his knowledge of the "unnamed" person to whom he gave the "key fob" for the Land Rover. I note in relation to him that the bulk of his evidence was given under the protection of a s.128 (Evidence Act 1995) certificate, the issue of which made him somewhat more cooperative (bearing in mind he was about to admit to offences or knowledge of offences for which he had not previously been prosecuted), but not necessarily more truthful. 4. He gave evidence about rudimentary matters in a desultory fashion and on many occasions claimed lack of memory of matters which at earlier times he was able to remember. He was driving a white Kia in the early morning of 15 January 2019 and that he was in company with his then girlfriend, Tanika Matthews, who lived at Berkeley Vale at the time, but whose address he could not remember (a fact I do not accept). He drove around various places on the Central Coast such as Bateau Bay, Forresters Beach, Terrigal and Wamberal over a number of hours between 3am and 5am, attending McDonald's restaurant at Bateau Bay at least once, the Caltex garage at Forresters Beach twice and the BP garage at Berkeley Vale once. Having regard to the business record evidence from these various businesses in the form of tax invoices (duplicates) he over that period of time was driving the white Kia and Richard Bourke was driving the white Hyundai at, or to, locations which make it impossible for him, to be present or in company with the Land Rover and/or its driver during that period of time, nor present at the time of the collision. He was never asked if, nor was suggested to him that, he was the driver of the Land Rover at the time of the collision. I accept his evidence that he obtained the handbag of Allyson Smith from which he took the "key fob" for the Land Rover and gave it to a third person (not Mr Bourke) for that person to take the Land Rover. Only one person on his account was present when the key was handed over and nobody else, apart from Mr Bourke, was immediately available to travel in the Land Rover once it was taken. This is significant. I also accept that he was aware that credit and/or debit cards were taken from the handbag and used by the women in his and Mr Bourke's company to purchase items such as food and cigarettes. Obviously he and Mr Bourke could not use the "credit cards" (as they may be described) because there was a woman's name on them. 5. I do not accept his evidence that he did not know the identity of the person to whom he gave the Land Rover key. Leave was granted pursuant to s.38 Evidence Act 1995, unopposed, for him to be cross-examined upon the contents of an electronic interview conducted with him on 1 April 2019 by Senior Constable Jason Wright at "Silverwater Gaol". In that interview he made the following representations which were inconsistent with the evidence he gave in Court, accepting in evidence that he had made the relevant representations. When he stole the handbag he was, "with a couple of people, I'm not going to name, name him but I can tell you one person I was with, Richard (Bourke)" (Q 16) (emphasis added). He was asked; Q: "Now this person that you're unwilling to name did they leave in the vehicle alone? A: Yep. Q: Did you have any other contact with the vehicle or that person that night? A: No. (Q 27 – 28). He further said in the interview that he had met the person who took the Land Rover "through mutual friends". Q: Why was he with you that night? A: He just wanted to go for a cruise" (Q 57 – 59). In the interview he explained how he came across the Land Rover and when asked; Q: "Who went over to the Land Rover?" A: "I did". Q: With who? A: Don't want to name him now" (Q 100 – 102). At Q114 he was asked this question: Q: "This unknown male that you not willing to, to name due to concerns for your safety, did he approach the vehicle with you and Richard or was he waiting back with the girls? A: No he didn't, I don't think so….. I just said "there's a Land Rover down there, you can have it, take it if you want… If you want it go and take it". He accurately described the character of the key required to start the vehicle. Later he was asked this question by the interviewer: Q: "This unnamed individual. I know you said that you've met him not long before. Was it the night that particular night that you have met him or… A. No. Met, knew him for a little bit… Probably, like a week or two". (Q154 –155). 1. During the course of his evidence, apart from not remembering particular matters, he said in evidence of the person who ultimately took the Land Rover he did not know that person's name and that he could not remember how he came to meet him or how he came to be in Terrigal at the time of the taking of the handbag. He did say at one stage that there were things he didn't remember because he was "on drugs". Although it may be true that he was using drugs at the time, given the detail of his interview on 1 April 2019 and some detail in his evidence in the trial in November 2020, a number of things he "cannot remember" are not to be attributed to drug usage. The Crown properly put to him that the name that he said that he did not know was "Sam Conway" which he denied. But he also failed to concede what was self-evident from his interview, that at the time of the interview he knew the name but he just was not willing to disclose it. He conceded that his memory in April 2019 was better than it was in 2020, and as he has admitted to the accuracy of the representations contained within the electronic interview, where relevant representations are in conflict with his evidence, I prefer those representations to his evidence. It was not just a case of poor memory from effluxion of time, it was a case of him deliberately not telling the truth about his knowledge of the person to whom he gave the Land Rover key. He also did not tell the truth about who he left Berkeley Vale with on his way to Terrigal. At the time of giving evidence in the trial he must have known Sam Conway was on trial in relation to the collision that killed Mr Hill (albeit that the precise details may not have been known to him other than that the relevant Land Rover was involved). ADDRESSES Crown Address 1. The Crown Prosecutor commenced his address by identifying what he described as "fundamental facts" concerning matters relating to the circumstances of the collision which was submitted, correctly so, to be not in dispute and which do not need reiteration as I address those matters elsewhere. 2. He turned to the accused's two interviews, Exhibit E, conducted on 20 January 2019 and Exhibit F, conducted on 24 April 2019 and made, if I may summarise, the following points; 3. The accused in the course of the first interview (by reference to Exhibit E1) made particular representations which were submitted to be false. Particularly that the person who he clearly identified as Ryan Corby (although he did not supply that name) was the driver of the stolen Land Rover. He drew the Court's attention to questions 665, 669, 671, 675, 702, 714, 715, 731, 834, 835. In these various answers the accused distanced himself from the collision and the circumstances of the taking of the car, made claims about being made to "touch the car" and made allegations about the driver's prior conduct supposedly consistent with the manner of driving at the time of the collision. 4. With regard to the interview of 24 April (Exhibits F, F1), the Crown referred the Court to a large number of questions and answers including questions 19, 20, 96, 121, 123, 134, 135, 139, 199, 215, 225. In that interview ultimately he reconfirms the identity of the driver at the time of the collision as Ryan Corby, by adopting the truth of the answer that he gave in that respect in the first interview at Q 714. The Crown however drew the Court's attention to a number of aspects of the interview that involved important admissions made by the accused consistent (when considered with the objective evidence) with the accused having been the driver at the time of the collision. These included an admission that he was the driver of the car at McDonald's restaurant earlier in the evening, he was in the car at the time of the fatal collision, that at some point he had wiped down the car (to remove fingerprints and possibly DNA material) after the collision, he was not driving the car but he was unrestrained and landed on top of the driver and was the first person to get out of the car on the driver's side of the vehicle and ran off through bush land thinking the driver was following him. He made an allegation that the driver and his family were involved in setting him up as the driver. 5. The Crown made a number of submissions relating to the character of these admissions and representations including the submission that the accused's own account of the movements of the car in the presence of the driver gave him ample opportunity to escape the vehicle if he was in fact as concerned about the driving of the driver in the period of time that he was in the car (example Q135, Exhibit F1). Further, his accounts of the circumstances of meeting the driver were inconsistent with claims he made about not having possession of a phone and not having his wallet prior to travelling in the car in the hour or so before the collision. Further, his version of events was of prior involvement with the driver in reckless driving in another car in the days before, but not explaining why he agreed to get into the vehicle in the circumstances he explained. 6. The Crown submitted that there were critical elements of the evidence of Amanda Haley which confirm the accused was the person who took the Land Rover and supported the account of Ryan Corby. She asserted several times that when she was at the house at Killarney Vale three people left the house, Corby, Bourke and the accused, but only two returned to the house before they went out and fraudulently used the credit cards at various places as shown in Exhibit G (pages 421, 422, 433). When cross-examined upon the previous statement she gave where she said that before the collision the Land Rover had overtaken her and Corby while they were driving around the Central Coast. She had seen the accused driving the Land Rover, by himself, in circumstances that the Court would accept (notwithstanding her explanation that she relied upon other information to reach that conclusion) because her version was "coherent" and "without qualification" (pages 448 – 449), noting that she'd previously said that after he left the house she did not see the accused again. Exhibit G showed that the credit cards of Ms Smith had been used between 3:30am and 5:00am and that Mr Corby, Mr Bourke, Ms Haley and Ms Matthews were together during that period of time. 7. The Crown moved to consideration of the evidence of people who attended the scene and submitted that Mr Gilchrist could not assist the Court as he arrived too late. It was submitted that Mr Maiuu and Ms Scott were the most reliable and accurate of the civilian witnesses as they actually saw the collision and they made observations of the immediate aftermath of the collision that in all the circumstances must be reliable. Mr Maiuu was supported by the Snapchat film (Exhibit Q), only showing the driver's door open. He went immediately to the Kia after he pulled over, but before filming had a clear view of the driver side of the Land Rover. The person he saw leave the car was the accused because on the accused's version of events, he was the first person to leave the car via the driver's door and the other person he described in the vehicle was in no position to get out during the time that this witness had the car under view. Mr Maiuu's account was supported by Mr Tahitahi as to his movements. His timing for taking the Snapchat vision in Exhibit Q gave him ample opportunity to observe the comings and goings from the Land Rover. At the time he saw the person with no shirt on leaving the car that person got out of the vehicle in a manner inconsistent with the version the accused gave explaining how we came to be on the driver side of the car after the collision. Likewise Ms Scott only saw one person and that person was similar in appearance to the accused and she had that person under observation from after the collision for a period of time and described the movement of that person consistent with other evidence in the CCTV coverage of the cul-de-sac showing a person moving left to right, and also consistent with the observation of the police officer concerning fresh footprints through the grass away from the scene of the collision. The importance of the evidence of these two witnesses is that they both saw the collision, both saw the driver's door open, both saw the accused alight from the car in a manner not consistent with being on top of the driver and "crawling" out of the doorway and if there was a second person who was a passenger, or another driver, they had opportunity to see that person and that person was not seen. 8. Mr Gariano was an unreliable witness it was submitted. He claimed to have seen two people and claimed to have seen two doors open, or that were already open and two people running away, initially a metre or two apart and then drifting apart. One wearing a black singlet and pants the other wearing a light coloured top, marking Exhibit R as to their respective routes. However, he "went back" on his version, as marked on Exhibit R, in cross-examination. He gave evidence he did not see any people at the Kia when in fact there were people there assisting the deceased. He did say in cross-examination that he saw the person with a black T-shirt getting out on the passenger side having given a different account earlier in his evidence. 9. The Crown analysed the accounts of the accused identifying Mr Corby as the alleged driver in greater detail, particularly focusing on answers to Q 714 (in Exhibit E1) and Q 228 (in Exhibit F1). 10. The Crown made the point that the accused by the time of the second interview was well aware of the risk of him having left DNA and fingerprint evidence, going into great detail to explain why the person he said was driving would not be detected that way (he was "ballied and gloved up") and so far as he was concerned, he had tried to wipe down parts of the vehicle to prevent his own DNA and fingerprints being left behind (Q169, 76; Exhibit F1). 11. In both interviews the only other driver was Richard Corby. In the first interview the accused said that he didn't drive and that the other person did all the driving. In the second interview he refers to only one other driver apart from himself, being 'RC'. There is no suggestion of a third person doing the driving other than the accused or 'RC'. Yet, the Crown submits the other driver could not have been 'RC', having regard to Mr Corby's evidence, the support for Mr Corby's evidence in Ms Haley's evidence and the support for both of their accounts in Exhibit G. 12. With regard to Mr Corby's evidence it was important, the Crown noted, that even though initially a reluctant witness, Corby admitted stealing the bag (where it was stolen from is not a material consideration), he denied ever driving the Land Rover, he gave evidence of handing over the key fob to the person who he either could not remember (in his evidence in the trial), or refused to name, or was unwilling to name (in his interview on 1 April 2019). The Crown submitted in any event he didn't need to take Land Rover because he had his own car (the white Kia) and he in fact was driving the white Kia a relatively short time later at the same time as the Land Rover was being driven into McDonald's by someone else (the accused at 3:44am). The Crown submitted in any event, Mr Corby evidently knew the name of the driver as his evidence at pages 491, 492 and 493 showed. In his previous interview with the police which he said was accurate, he admitted that the person to whom he gave the keys for the Land Rover was with him in his car (Q 59) and that was a person other than Richard Bourke, whilst he could not remember the person's name he admitted in his previous interview that he'd known the person for at least a week beforehand. 13. In summary, the Crown said the overwhelming effect of the evidence of Mr Corby, Ms Haley and Exhibit G is, that he, Bourke and Conway left as a threesome from Berkeley Vale, only to return using the credit cards from the bag stolen by Corby later on and that Corby, Bourke, Matthews and Haley were together from at least 3:30am at McDonald's until finishing up at a service station in Berkeley Vale close to 5:00am as shown by Exhibit G. 14. In relation to the issue of whether the accused was the driver, the Crown pointed to the following issues also picked up by it in identifying the relevant circumstantial evidence which I have previously summarised. 15. The accused admitted that he was in the Land Rover when it was at McDonald's at 3:44am and when it collided with Mr Hill's Kia. Mr Corby was not the driver of the car and the accused never nominated anyone else as being associated with the car as a driver despite two opportunities to do so. Mr Corby could not be in the back seat hiding when the accused drove into McDonald's at Bateau Bay at 3:44am on 15 January because he was driving a white Kia 15 minutes before as shown in Exhibit G. Further, whilst the accused in great detail claimed that Mr Corby was hiding in the back seat and that he bought him a lemonade (or Sprite) drink, only the accused's DNA profile was found on a straw of the McDonald's drink container, leading to the conclusion that the accused himself had consumed the lemonade not anybody else. Purchasing lemonade and obtaining a water was consistent with his need to have a drink because of his regular drug use about which he spoke in his interview on 24 April 2019 (Q 28, 31, 54, 103 – 106; Exhibit F1). The accused admitted to being about 5'5" or 5'6" tall and weighing 60 kg consistent with the general description given by Ms Scott. The accused claimed that the driver of the car was wearing a balaclava and gloves, yet nobody who claimed to have seen people leaving the car saw a person wearing a balaclava, nor was a balaclava recovered from the vehicle, neither were gloves. An understanding of the DNA and fingerprint evidence required consideration of the accused's claim that he "wiped down the car" with the pink cloth that was subsequently found in the car, in a deliberate attempt to remove DNA and fingerprints from the vehicle. This would explain in part the absence of his fingerprints from within the car although fingerprints of his were found on the outside of the car consistent with what he admits to being his contact with the car, and of course the DNA profile of the accused found in various places. With regard to the pink cloth, however, it was significant that although the pink cloth in the holding yard at Woy Woy was seen in the front driver seat foot well (Exhibit L8) "in situ" the pink cloth can be seen wedged to the right of the steering wheel approximate to the driver, consistent with it being placed there by the accused (Exhibit D31). Here the DNA evidence reveals only DNA profiles of the accused and Ms Smith (the custodian of the car) who was definitely not at the collision. Further, although the accused throughout his second interview talked about the threat to him by the driver causing him concern, the character of the driving causing him to fear for his safety, there was no reason for him to stay in the car. In fact, he had ample opportunity on his own admission in the second interview of 24 April 2019 to have gotten out of the car or escaped (Q 19, 121, 124, 135; Exhibit F1). It was also submitted that one could reject the submission that might arise from the cross-examination of Senior Constable Wright that he was selective in his instruction as to what should be examined. Firstly, there are was no evidence of any instruction being given to be selective in the subsequent examination of the car in May 2019 by the Crime Scene Officer. In any event, on the accused's own version when he said he was not driving at the time of the collision, the accused did not claim that he was hit by the passengers airbag, in fact he said he was hit by the driver's side airbag (Q199), moving he said between the two front seats and falling on the driver as he explained in his second electronic interview. 16. There was other evidence that suggested the accused was not in the front passenger seat. The location of the sunglasses when the car was examined at the Woy Woy holding yard (Exhibit L9). But more significantly that photograph shows little foot room in the passenger side of the vehicle with no evidence of footprints or markings on the white paper that Ms Smith said was work from her school. 17. The Crown Prosecutor put a number of submissions as to the circumstances relied upon to establish the accused was the driver which I have summarised in the legal directions. 18. The Crown also dealt with other evidence not previously discussed. Conceding the evidence of Ben Johnson did not provide great assistance to the critical issues in the case. Likewise the evidence of Ian Kay, the detective driving to work who described the erratic driving of a white Land Rover at approximately 4:05am at Killarney Vale. Nor, for that matter Adam Smith who saw a white "Range Rover" whilst driving south on the Central Coast Highway (The Entrance Road) at approximately 3:55am on 15 January. His description of the driver in the circumstances previously outlined was of a person with "short cropped hair", with possibly a person with a pink shirt sitting in the front seat and either people in the back or headrests seen by him. He conceded that the pink shirt may have been an item with pink material on the sleeve, but whichever way one looked at the evidence submitted by the Crown, it doesn't help the accused position because the driver is not wearing a balaclava and the pink coloured material on the passenger side, even if it was similar to the pink cloth used to wipe down fingerprints, with the DNA of the accused on it, was located not in the passenger seat but wedged close to the steering wheel on the driver's door side of it. There was in reality a degree of uncertainty about what he was describing. As for Mr Gariano, he was described as "unreliable" because he was contradicted by people that paid closer attention to what was happening immediately after the collision (witnesses Mauii and Scott) and he described people running away, when they describe the person they saw as "walking" away. Also Mr Gariano contradicted himself in relation to Exhibit R. 19. The Crown referred to Exhibit H2, CCTV footage from commercial premises in the cul-de-sac, showing only one person walking from left to right, that is, away from the scene of the accident as shown by the aerial photographs. Little could be concluded from that image except there is only one person. If the driver had "no shirt" at the time of leaving the car, that was consistent with a person being hot from the use of drugs. Apart from the DNA evidence that connected the accused to the driver seat in the driver seat belt, significantly there was no DNA recognisable in relation to the front passenger seat or the rear passenger seats. The DNA evidence was consistent with the use of the pink towel or cloth as described by the accused. Other DNA evidence that was inconclusive did not assist the accused, bearing in mind the risk of transference, such as the presence of the DNA of Ms Smith on the driver's side airbag. 20. Constable Hand's evidence was consistent with one person moving away from the crash site through the line of trees across wet grass and consistent with Exhibit H2. 21. Ultimately the Crown submitted five key matters: 1. The accused came into contact with the car after the theft of the handbag and had the key given to him by the person who stole the handbag, not returning with that person to the address at Berkeley Vale. 2. Ryan Corby was not the driver of the motor vehicle at any stage but particularly not at the time of the collision. 3. The accused told material lies about never having driven the Land Rover when first interviewed and that Ryan Corby was the driver both times he was interviewed. 4. As Ryan Corby was never driving the Land Rover as demonstrated by Exhibit G and his evidence, and as the accused had never nominated another person as being the driver, it is not open on the evidence to conclude there was another person driving the car (as opposed to another person being a passenger) . 5. The Crown having positively established that Corby was not the driver, means in these circumstances that the accused was the driver, consistent with the observations of the more reliable eyewitnesses Mauii and Scott. 1. There were submissions from the Crown in relation to the issue of manslaughter by unlawful and dangerous act, particularly by reference to the two authorities discussed informally some days before: R v Pullman (1991) 25 NSWLR 89 at [95]-[96]; and R v Borkowski [2009] NSWCCA 102, a Crown appeal on sentence in which the correctness of Pullman was discussed. Ultimately, as I understood the Crown submission, the primary basis for alleging manslaughter was in respect of manslaughter by criminal negligence. There was a discussion as to the elements of that offence and by reference to the matters identified, particularly in relation to element "(vi)" (which the defence had acknowledged was the real issue), the Crown submitted that the key features of the driving giving rise to manslaughter by criminal negligence were; * the conduct alleged against the accused was purposive, * there was no attempt to desist or slow the vehicle before it was too late, * the danger for others increased the further he went along the bus lane, * he was driving on the extreme right hand side of the wrong side of the road, * he drove into a bend with limited visibility of oncoming traffic, * there was a failure to apply brakes until the last second, * he was driving a large vehicle that could be described as a "lethal weapon" (weighing 1730 kg), * the accused was driving until it was too late to stop at 120 km/h, * driving on a main arterial road, on the wrong side of a divided road with a median strip and it was impossible to cross back to the correct side of the road with safety. 1. The Crown conceded by reference to the terminology of s 52 A, that it could not prove beyond reasonable doubt that the accused was driving at 45 km/h or more, above the applicable speed limit at the time of impact. The issue in relation to Count 3 was essentially "driver". The issue in relation to Count 4 was whether the accused "took" the motor vehicle. Defence Address 1. The starting point of the submissions for the accused was concerned with what was described as the "key fact in issue", that is proof of driver. It was submitted that the proof of the accused as driver was a "circumstantial" case. The submissions were organised into three blocks of time by reference to the chronology of events. 1. The first "block of time" was concerned with the alleged taking of the Land Rover up to the time that it drove off camera at the McDonald's restaurant of Bateau Bay. Particularly, the submissions concentrated on the taking of the Land Rover at Terrigal and the actions of the accused at McDonald's (at approximately 3:44am). 2. The second "block of time" was from the time the Land Rover left the McDonald's restaurant to the precise time of the collision. 1. The third "block of time" was immediately after the collision and subsequent events. 1. It was submitted that in general terms the only evidence the Court can act upon as establishing the accused is driving the Land Rover, is the CCTV footage of him at McDonald's restaurant shown in Exhibit G1. No person saw only one person driving the car after the visit to McDonald's restaurant. 2. As to the first block of time and the taking of the car, the Crown case was dependent upon the evidence of Amanda Haley and Mr Corby. It was submitted that both witnesses had lied on their oaths as had been shown or admitted. So far as Haley's evidence was concerned there were a number of deficiencies including, she gives no time for the "men" (allegedly including the accused) either leaving the house or returning. She gives no time for any return other than it can be accepted that occurred before 3:15am. She gave evidence that Ms Matthews stayed with her when the men left. Mr Corby gives no evidence of being at the house at Berkeley Vale (p.467/13), but, he begins with an account of driving around with Matthews, Bourke and the person he is unwilling to name (p466). As to the circumstances of the stealing of the Land Rover it was submitted that there was, in the evidence from both witnesses, "a big temporal gap". 3. So far as Corby's version of the taking of the car, the difficulties in the Crown case were gaps in time when "anything" could have happened, Haley's observation of the accused leaving the house could be wrong, she had been injecting and smoking the drug "ice" and she barely knew the accused. As Mr Corby he does not name the person to whom he gave the "key fob", it could not be necessarily concluded that it was the accused, having regard to the unreliability of Haley. 4. In relation to both witnesses it was submitted that the Court should give a warning as to their reliability pursuant to s. 165(1)(d) Evidence Act 1995, as both witnesses were criminally concerned with relevant events and that there should be warnings in relation to their reliability arising out of their claimed ingestion of prohibited drugs. 5. In relation to Corby's account of the taking of the handbag, there was a conflict between him and the owner of the handbag as to where it was located, which may be explained either by insurance issues as they relate to Ms Smith or because Mr Corby was not willing to admit to breaking and entering the residence of Ms Smith. Only one of these witnesses has admitted to lying on oath and it wasn't Ms Smith. Mr Corby admitted to being on drugs on the night (p488 L5), and he claimed that he had parted company with Mr Bourke after being at McDonald's (pp 477 L5) which cannot be right, having regard to other evidence concerning the movements of the Kia and the Hyundai from Mr Corby, Ms Haley and Exhibit G. An issue that also arose in relation to Mr Corby was whether he was telling the truth on 1 April 2019 when he was interviewed. This had to be examined in the context of him telling lies on oath before this Court and also being interviewed as a suspect in the fatal collision (p146 per SC Wright). Ultimately Mr Corby is submitted to be a totally unreliable witness. 6. In other evidence as to the movements of the Land Rover there are the representations of the accused in the two electronic interviews (Exhibits E and F). It was conceded by counsel for the accused that I would have to read the interviews "very carefully", most of contents of the interviews are "plainly nonsense". But I was entitled to accept some evidence from the representations of the accused and reject other evidence, particularly admissions against interest. It was specifically cemented by counsel for the accused that "the lion's share of the interviews was demonstrably untrue". 7. On the other hand, it also needs to be satisfied that there was independent evidence that supported aspects of Mr Corby's account. There was no reliable evidence that the accused was at Terrigal. 8. With regard to the inference to be drawn from the "recent possession" of the accused of the vehicle, it was submitted that the effluxion of time between the taking of the vehicle and the only confirmed sighting of the accused in the vehicle at 3:44am at McDonald's allowed for a transfer of possession of the vehicle, or for another person to be driving the vehicle before the accused. I point out that whilst I raise the issue of the "doctrine of recent possession" in submissions, I propose not to direct myself on that "doctrine" given the limited application it can have to particular counts and that it is otherwise overtaken or replaced by the particular circumstances identified by the parties. 9. With regard to the evidence of the attendance at McDonald's at Bateau Bay the Court was taken through Exhibit G2, with the accused's counsel stopping the film to point out various matters; the obvious wearing of a long sleeve top; the appearance of a black draw string consistent with the cord; actions of the accused consistent with pulling on a seatbelt; the pink towel subsequently found in the car in view and being used by the accused and then shown near the lap of the accused, amongst other matters. In any event it is submitted that whatever can be made of the CCTV footage and Exhibit G2 it does not aid the evidence to establish who was driving the vehicle at the time of the collision. 10. In relation to the second "block of time" it is submitted, firstly, that Amanda Haley's account of seeing the accused, on her version, driving past her and Mr Bourke while they were between McDonald's at Bateau Bay and Forresters Beach, could not be relied upon as evidence that the accused was then driving the vehicle or driving by himself. She places the overtaking as occurring on "Wyong Road", which is not on the way to Forresters Beach, she was relying upon information that was of the second-hand hearsay character, she couldn't see the driver having regard to her drug ingestion and the circumstances of the act of overtaking and even if she told the police the truth when she was interviewed 6 to 7 months after the event (which must affect the reliability of her recollection) the terms of her statement to the police were; "I believe he was the only one in the car, I don't know if anyone was with him". I generally accept these matters I point out at this time but I am satisfied that she did see the Land Rover or had been told about it. 1. On the other hand it was submitted that Adam Smith's evidence particularly at pages 370–371, shows that he saw two people in the Land Rover. Some features of his evidence were that he was very familiar with that stretch of road; describing the Land Rover hitting the gutter was consistent with post collision damage spoken of by Senior Constable Wright; he was as close as 2 - 3.5 metres from the occupants of the car; the timing of the observations was correct (between 3:55am and 4:00am); his recollection was first excited 12 days after the event; he stopped underneath the street light to be plainly seen and thus had good lighting to assist his observations and he definitely saw two people in the car, with the passenger definitely wearing something with pink material at least on the sleeve. He said it was a great coincidence that the pink colour is the same as the hand towel, and that this was consistent with him observing the accused sitting in the passenger seat in possession of the pink hand towel. This is the only reliable evidence as to the number of occupants in the car at about 4:00am, after the car had left McDonald's. 2. The circumstances of the collision were not in dispute, nor were the findings of Mr Inchley as to the speed before collision, period of braking and the like. It was conceded that the reaction of the driver of the Land Rover was consistent with only seeing the oncoming car in the last few seconds. 3. With regard to the third 'block' of evidence, there were ultimately three important eyewitnesses, Ms Scott, Mr Mauii and Mr Gariano. Mr Gilchrist was of little assistance and Mr Tahitahi did not observe anything of significance. Noting the physical evidence as to the position of the Kia to that of the Land Rover, noting the estimates of elapsed time given by Mr Mauii and the contents of Exhibit Q (the Snapchat film) it was submitted that Mr Mauii had passed the Land Rover a matter of seconds after he saw the driver. Ms Scott was the first person to see the collision but was overtaken on the road by Mr Mauii, but she drove off before Mr Mauii was able to get to the Kia to render assistance. He noted the physical description of the driver by Ms Scott, her observation that that person "closed" the door, (but the film shows the door was slightly ajar), and the fact that neither witness made observation of the passenger's side of the vehicle. 4. He ultimately submitted (notwithstanding Exhibit V, the diagram of the site marked by Ms Scott), that she did not see the driver walk through the bush and the Court should accept her account given that day over the phone entered in the relevant COPS entry, that the driver, "walked to the front of his car or through the bushes". 5. It was submitted that this evidence had to be seen as not necessarily confirming the driver or anybody else walked through the bushes. It was noted that the lighting on the road at the scene of the collision was good; there was a streetlight immediately above the Land Rover. It was also noted that the evidence revealed that whilst the point of collision was well lit, from the tree line back towards the cul-de-sac, the lighting was not very good and less clear. It was thus conceivable that Ms Scott lost sight of the driver where the lighting was not good and thus the driver may not have gone through the bushes and may not be the person shown in the CCTV footage and Exhibit H2 (see Exhibit H1 as well). 6. It was submitted that the evidence of Ms Scott and Mr Mauii should be taken together in that the Court could accept his timing, that she left the scene before he got to the Kia (P3 60/20 – 25), that he, on parking his car, ran straight to the Kia but that neither he nor Ms Scott made observations of the passenger side of the vehicle. 7. One issue raised with counsel in this context of submitting that the passenger side of the vehicle remained unobserved except for Mr Gariano's observations, including observing a person leaving the passenger side of the vehicle, was whether, on the basis of the version given by the accused in the second interview of landing on the lap of the driver, anything could be seen by observing the passenger side of the vehicle, given that the accused gave an account of leaving by the driver's side and leaving the driver still sitting in the driver's seat. The issue arose as to whether this was untruthful and was available as a lie as evidence of consciousness of guilt. Neither issue ultimately was satisfactorily resolved to the favour of the accused's arguments. 8. In relation to Mr Gariano, it was submitted that rather than being an unreliable witness, bearing in mind it was suggested that he was the only person who approached the Land Rover from the passenger side and had it in his line of sight, he was a reliable witness glimpsing two people, one with a black top or singlet getting out of the driver's side in his evidence in chief and another person without a top getting out of the passenger side. Although having marked Exhibit R that way, he conceded in cross-examination that the person with the black singlet or T-shirt may have got out of the car on the passenger's side. Learned counsel for the accused noted that he got a number of things right in his observation; he saw a white car and the Kia; the Kia was closest to him when he stopped his car driving in a southerly direction; the driver of the car left the Land Rover and headed in the direction the car was facing, one occupant was not wearing a shirt, the other occupant had a black T-shirt or singlet; all observations of witnesses that the Crown submitted were reliable. It was submitted that he could be relied upon because he was the only witness who approached the Land Rover from the passenger side. I note at this point that in fact Mr Mauii not only approached the passenger side of the Land Rover, he "opened" the passenger's side door (p320/17). The issue is not one of balancing the various versions, but assessing all the versions given by witnesses that were honest, to determine whether the Crown had proven certain facts beyond reasonable doubt. 9. With regard to Mr Gilchrist he made observations of a man without a shirt and with regard to Exhibit H2, little can be concluded from that other than it shows a figure moving along the cul-de-sac near the scene of the collision away from it. He said it was difficult what to make of Mr Gilchrist evidence, but it would be speculation to conclude that the accused had removed his shirt because he was on drugs that night and was dehydrated. There was in fact no evidence that he used drugs on this particular night, no evidence that using drugs can cause sweating or dehydration. 10. With regard to the forensic evidence it was submitted that the DNA and fingerprint evidence was "factually neutral" on the issue at hand. As there was no issue that the accused had driven the car at an earlier time in the night, it would be expected that his DNA profile and his finger prints would be found in relation to that conduct. Further, the Crown submissions as to the placement of items within the cabin of the car could not be accepted because the significance of the impact would have rearranged many of the contents of the car. A good example of that being the rear vision mirror detached from the front windscreen and was sitting in the front passenger's seat foot well. No inference could be drawn as to where particular items were found because of the character of the collision. 11. Other submissions were made about some of the unidentified DNA found within the car, one such person being linked to another crime scene, but with no details as to what that meant. Ultimately, it was submitted, there was no DNA evidence that conclusively linked the accused to the driver seat at the time of the collision. The absence of DNA and fingerprints was of no moment, bearing in mind, that person who said they opened doors of the Land Rover had not had their fingerprints detected. The forensic evidence was "factually neutral". 12. With regard to the alleged lies relied upon by the Crown, it was submitted that they were not 'consciousness of guilt' lies because there are explanations for the accused not telling the truth, including his belief that he had been 'dobbed in', in effect, by other people and because he was concerned about other matters that he thought he might be arrested for by police. In any event, one had to be very careful as to which particular counts in the indictment lies may be relevant to and also it was important to understand the basis upon which the accused may have nominated Corby as the driver knowing it to be false, bearing in mind that the accused suspected that Corby and his associates had nominated him as the driver. In any event even if evidence was available as consciousness of guilt from alleged lies told by the accused, this evidence had to be seen in the context of all the evidence. When regard is had to the full effect of the balance of the evidence, the Crown cannot exclude the reasonable hypothesis that it was not the accused who was the driver of the car, particularly having regard to the observations of eyewitnesses inconsistent with the accused being the only person in the car at the time of the collision. CONSIDERATION 1. I have had regard to all the submissions and the evidence. Some matters of fact I have already commented upon. Others in the context of my findings do not need elaboration. 2. I am satisfied of the following matters beyond reasonable doubt, they being matters not in dispute: 1. The deceased was killed by impact of the Land Rover to which I have early referred and his vehicle at approximately 4:35am on 15 January 2019. 2. At the time of impact the Land Rover was being driven in a roughly "northerly" (some witnesses called it "westerly") direction on the wrong side of the road, firstly along the bus lane adjacent to the kerb for 'southbound' traffic merging into the outside lane just before impact. 3. The precise description of Wyong Road at the location is that it provides two lanes for traffic travelling "north" and two lanes for traffic travelling "south", however approximately 18.6 metres south of the collision location the road widens to 3 lanes for south-bound vehicles, the third kerbside lane being a designated bus lane along which the Land Rover travelled from Mingara Road traffic lights for approximately 500 m before the collision. 4. There is a raised median strip between the northbound and southbound lanes, with some vegetation growing out of part of it but not obstructing vision of oncoming vehicles. 5. The weather was dry; it was dark with street lighting along Wyong Road directly above where the Land Rover came to rest. The road surface was clear of debris and was not a contributing factor to the collision. 6. There was no mechanical defect found in either vehicle that contributed to the collision. 7. The Land Rover was travelling at a maximum speed of 120 km/h in a 60 km/h zone up to 5 seconds before impact but decelerated with braking about 1 second before impact. 8. The deceased's vehicle endeavoured to avoid collision by moving towards the kerb but struck the Land Rover head-on, principally on the driver side. 9. The momentum of the Land Rover was much greater than that of the Kia by reason of its greater speed and weight. The impact forced the Kia back 20.1 metres from the point of impact represented by a gouge mark which was adjacent to the inside unbroken line approximately half a metre from the kerb of lane 1. 10. The contributing factors to the collision lay with the driving of the Land Rover. 11. The sweep of the bend at the point of collision and the obstructed line of vision for both vehicles gave limited time for either driver, perhaps no more than a second or two, to react. No driver travelling in a southerly direction would expect a motor vehicle to approach from the opposite direction in that lane. 12. The occupant (or occupants) of the Land Rover decamped immediately after the collision within little more than 30 seconds. 13. The driver of the Land Rover did not render assistance to the driver of the Kia which was far more extensively damaged. Further, 1. The accused was driving the Land Rover when it drove through the drive-through of the McDonald's restaurant at Bateau Bay at 3:44am (Exhibit H; annexure C). 2. The driver of the Land Rover is shown on CCTV footage to be wearing sunglasses similar to those left behind in the Land Rover after the collision. 3. The only reliable evidence as to the "identity" of the driver of the Land Rover after it was taken without consent establishes that person as the accused. 4. Ryan Corby stole the handbag with the "key fob" for the Land Rover. 5. Ryan Corby did not take and drive the Land Rover. 6. The Land Rover was driven recklessly, even dangerously and at excessive speed at 3:55am and at 4:05 am, in a similar manner to the "driving" at 4:35am. 1. As to the issue of "driver", from the totality of the evidence, this has involved consideration of all the circumstances that can be identified either by respective counsel, or by me, as well as analysis of the remaining evidence in the context of submissions. Examining particular circumstances, or "facts", requires consideration of warnings that I have outlined earlier to be given to myself in respect of particular witnesses that I refer to in the following passages. In consideration of obviously "honest" evidence of eyewitnesses, I apply the usual common sense tests relevant to the assessment of reliability and accuracy. Honest witnesses can be mistaken and mistakes can be identified from other "honest" evidence that is more coherent or supported by objective facts, or which better fits in with other evidence. 2. Bearing in mind a number of contradictions or totally implausible assertions by the accused in his interviews to police, the only matters worthy of acceptance are those that represent admissions against interest. Both in terms of what he said and how he said it in the course of the electronic interviews it is quite clear to me that the accused in the course of telling a lot of lies was going out of his way to present himself in the best possible light, making claims about matters of which he could have no knowledge, such as the purported conspiracy against him by the people associated with Mr Corby or Tanika Matthews. A number of his answers in both interviews were lengthy, convoluted and in a number of respects bore witness to Walter Scott's famous aphorism: "O what a tangled web we weave when first we practice to deceive". 1. I appreciate that "self-serving statements" may be received as admissions. In the context of all the evidence in the case I am of the view that many of the self-serving statements of the accused represent deliberate misstatements of the truth, being contradicted, or not supported, by other more reliable evidence. With regard to those witnesses in respect of whom I have warned myself in accordance with s.165 Evidence Act 1995, I have particularly had regard to admissions against interest and/or where their representations are supported by other evidence, either inherently reliable or independent of them or have been made in circumstances that render them likely to be true. I note both Hayley and Corby gave evidence from separate jails. There was no suggestion or indication made that their previous statements were contaminated by collusion between themselves of any sort. In any event whilst it is clear that they knew one another well, they are not persons who were in a relationship together at the relevant time or subsequently, although they obviously had a close relationship through their common use of prohibited drugs by their own admission. 2. Haley and Corby are important witnesses. There is no doubt that they have a connection with the circumstances out of which the Land Rover was taken, to varying degrees bearing in mind Hayley was not present at Terrigal, but Corby clearly was. I am mindful that they have the knowledge of matters that may provide opportunity to "bend" the truth to suit their own ends. But to the extent that they may have done so in giving evidence, I have formed the view that they have done so to assist the accused, not implicate him. After some prevarications they gave evidence of important matters in a relatively forward fashion, but were at their least impressive when they were trying not to implicate the accused. 3. Noting the various warnings I have given myself as to Mr Corby's evidence and performance as a witness, his representations on 1 April, consistent with the account given by Ms Haley, are that he travelled with two other men (and possibly Tanika Matthews), one of whom was Richard Bourke, the other was a male he refused to name. Ms Matthews did not take the Land Rover. Ms Haley told the court that it was in fact Mr Conway that left with those two men and that only Richard Bourke and Mr Corby returned. She said Matthews was with her, which is in conflict with Corby, but not of significance. There is no evidence Matthews, or anyone else other than Corby, took the handbag. In the circumstances where there is direct evidence of Mr Corby being in the presence of the accused with Mr Bourke at Berkeley Vale and leaving together, an admission by Mr Corby of taking the handbag of Ms Smith and handing the "key" to the Land Rover to the third male present at Terrigal, seeing that person drive off in the Land Rover alone, the absence of Mr Conway when Bourke and Corby returned to pick up at least Ms Haley, the presence of the accused in the driver's seat of the Land Rover when it travelled through the drive-in takeaway section of the McDonald's restaurant at Bateau Bay at 3:44am (no other person able to be seen in the vehicle at that time), I conclude that the accused was the person who took the Land Rover from outside the residence of Ms Smith. I am satisfied of this important fact beyond reasonable doubt. 4. Corby's evidence of possession of Ms Smith's handbag is confirmed by the fact that Mr Corby and his associates used credit cards or debit cards belonging to Ms Smith in the hours after her handbag was taken and Mr Corby volunteered correctly the suburb on the Central Coast (Terrigal) from which the bag was taken. Although, there is a conflict between Corby and Ms Smith in her recollection as to where the bag had been left. He also correctly described or agreed with the description of the "key" for the starting of the Land Rover. I also note the "slim" familiarity Corby had with the man who took the Land Rover is consistent with the "slim" familiarity of that person held by Ms Haley, who had known Mr Corby on her account for many years beforehand (Corby stating that he knew her for a slightly shorter period of time). His account of his limited prior knowledge of the accused, accords with the accused's description of the length of prior acquaintance with "R.C." 5. I am satisfied beyond reasonable doubt that Corby gave the "key fob" to the accused. There is no evidence of any other person other than Richard Bourke that could have been present. There is no evidence of any other person who could have driven the Land Rover from the representations made by the accused to police. The fact that the accused implicated Corby was evidence that supports a finding that he was aware that Corby had stolen the "key fob," because there was no point implicating someone who had no connection to the circumstances of the 'taking ' of the Land Rover. 6. The only direct evidence of anyone driving the Land Rover shows that it is the accused. The circumstantial evidence does not point to the identity of a "third person" as a driver. Not even the circumstances post collision. The last person to see the driver before the collision at about 3:55am - 4:00am describes a passenger unlike the accused and a driver with a similar hairstyle to the accused (see Exhibit E). The only version or versions I have from the accused, albeit that they are each replete with untruths which I summarise later, do not include the nomination of any other person as being the driver, or having the opportunity to be the driver, other than a person who definitely was not the driver. This was done deliberately twice by the accused, 3 months apart. If he was prepared to 'put in' a person who he knew was innocent, why not instead 'put in' someone else that on his version he knew the identity of? As to the claims of threats of violence by "RC", they were clearly falsehoods. There is no evidence of any reason not to implicate the real driver, if there was one. The reason he did not is quite clear. There was no one to implicate. To falsely implicate a third person other than Corby was to point out a person who could have no connection with the stealing of the handbag (with the "key fob" in it) and who may be able to assert or demonstrate the impossibility of being present at the collision. I will return later to the significance of the accused's "lies". 7. The fact that Mr Corby lied on oath in that he claimed he did not remember or know the person to whom he gave the "key fob" does not assist the accused. The reason he lied on oath to my mind is very clear. He was unwilling to nominate the driver when he was interviewed on 1 April 2019 for fear of retribution. When he came to give evidence in the trial, Corby obviously knew that Mr Conway was the accused. It is in these circumstances that he shifted from being unwilling to identify the person (an obstacle that could be overcome possibly for example by threat of prosecution for contempt) to not knowing the name at the time or not remembering it. Clearly, this latter position could not be true given his self-admitted extent of contact with the person to whom he gave the "key fob". A claim of not knowing something is in one sense impenetrable. But on the other hand, in the circumstances of the previous representations, was skilfully shown by the Crown Prosecutor's cross-examination to be untruthful. It was entirely inconsistent with his account when interviewed on 1 April 2019. Ultimately, when one examines the conduct and statements of Mr Corby in the context of the first interview he gave police on 1 April 2019, the only person he could be covering up for was the accused. 8. In searching for a reasonable possibility that he was not driving the car 45 to 50 minutes later there is no reliable evidence, or any evidence, to support the reasonable possibility that it was someone else other than himself. 9. This is so because, firstly, there is no evidence from the CCTV footage of anybody else being in the car. Secondly, the accused implicated himself in his second interview (occurring after Corby had been interviewed for the first time) as being in the Land Rover at the time of the collision and being aware directly of the circumstances of the collision. Thirdly, the 'forensic evidence' gathered by the investigators from latent fingerprints and DNA sampling link the accused directly to the Land Rover, particularly to the driver's seat (but is neutral on the issue of 'driver' at time of impact). Fourthly, there is no DNA or fingerprint evidence that implicates another person who might reasonably be regarded as the "driver" in the circumstances. Fifthly, the accused's account of another driver being "ballied and gloved up" from the time he got into the car until the collision is demonstrably untrue, because whether one or two people got out of the Land Rover after the collision, nobody saw a person wearing a balaclava and no balaclava and/or gloves are located in the Land Rover. Sixthly, the accused gave an untrue account of the circumstances of the collision claiming that he "landed "on the lap of the driver who apparently on his version was in a bad way and he "crawled" out of the driver's door (as he must have given his description of his position on top of the driver with his legs towards the passenger side) where no person saw the first (and only) person to leave the driver's side get out in that manner. In fact both witnesses described the "driver" getting out normally. Ultimately, when one examines the conduct and statements of Mr Corby in the context of the first interview he gave to police on 1 April 2019, the only person he could be covering up for was the accused. 10. It was, it might be said, a pointless "tactic" as the only reliable evidence as to who is the driver after the Land Rover was taken from Terrigal comes from a combination of filmed images of the driver, accompanied by an admission that had to be made by the accused that it in fact, it was himself. In searching for a reasonable possibility that he was not driving the car 45 to 50 minutes later, there is no reliable evidence, or any evidence, to support the reasonable possibility that it was someone else other than himself. This is so because, firstly, there is no evidence from the CCTV footage of anybody else being in the car at McDonald's at 3:44am. Secondly, the accused implicated himself in his second interview (occurring after Corby had been interviewed for the first time) as being in the Land Rover at the time of the collision and being aware directly of the circumstances of the collision. Thirdly, the 'forensic evidence' gathered by the investigators from latent fingerprints and DNA sampling link the accused directly to the Land Rover, particularly to the driver's seat (but is neutral on the issue of 'driver' at time of impact). Fourthly, there is no DNA or fingerprint evidence that implicates another person who might reasonably be regarded as the "driver" in the circumstances. Fifthly, the accused's account of the other driver being "ballied and gloved up" from the time he got into the car until the collision is demonstrably untrue. Whether one or two people got out of the Land Rover after collision, nobody sees a person wearing a balaclava and no balaclava and/or gloves are located in the Land Rover. Sixthly, the accused gave an untrue account of the circumstances of the collision claiming that he "landed "on the lap of the driver who apparently on his version was in a bad way and he "crawled" out of the driver's door (as he must have given his description of his position on top of the driver with his legs towards the passenger side) where no person saw the first (and only) person to leave the driver's side get out in that manner, "crawling" out of the driver's side of the car. Seventhly, there is no reason available for the person who took the car in the first place to pass over driving duties to another person who could not have been present at the time of the taking of the vehicle. Eighthly, the last observation of the driver, driving in a manner similar to that at the time of the collision, is a person with similar hairstyle to the accused and passenger of dissimilar appearance to the accused. These are matters taken into account in conjunction with the analysis of the post collision evidence of eyewitnesses. 11. In relation to Ms Haley, noting the warnings I have to give myself outlined in the legal directions, I did not detect in her evidence any motive to falsely implicate or otherwise prejudice the accused. It is clear on the basis of the evidence presented to the Court from this witness that the key part of her evidence which implicates the accused, that is he was with her and other people at the premises associated with Ms Matthews, he left the premises with Corby and Bourke and did not return with them, has a significance in this matter that she has not been shown to appreciate. I do not accept that there is a 'temporal gap' that lends uncertainty to her evidence. She does not give times, but we know the Land Rover was not taken until after 11:30pm and that Corby, who stole the "key fob", was in another car at another location, at about 3:30am. More than enough time to travel from Killarney Vale to Terrigal and back to pick up Haley (and Matthews).There was no need for Haley to lie about not being present when the handbag was stolen, because she admitted negotiating the proceeds of that theft in any event. 12. It is correct that in her statement to police upon which she was cross-examined by the Crown with leave, she asserted that at some time between 3:30am and 3:56am she saw the Land Rover overtake the car she was travelling in (the Hyundai, with Mr Bourke) and told the police officer in the statement she gave to police in July 2019 that there was only one person in the car and that it was Mr Conway. I do not allow this evidence as admissible hearsay for reasons earlier stated. But I do not doubt that she was told this. It is consistent with the import of Mr Corby's evidence, that is, he stole the handbag, he did not take and drive the Land Rover, he got the "key fob" for the Land Rover out of the handbag and gave it to a third person who, if it wasn't Mr Bourke, having regard to the fact that Bourke and Corby went off with the accused (on Ms Haley's recollection), must have been the accused. 13. When Ms Haley gave evidence she resiled from the truth of the contents of a statement in which she implicated the accused in driving the car at a time approximate to when he was driving the car on his own admission, that is, a time between 3:30am and 3:56am. What she said in evidence to explain her statement to the police, to my mind had the ring of truth. When she told the police that she saw the accused driving the Land Rover, at a time and in the area where the accused did drive the Land Rover, she identified the accused as the driver based upon what she was told by Mr Bourke. Any of his representations to her on the topic of the taking of the Land Rover were second hand hearsay and could have represented what he had been told by Mr Corby who said that he gave the "key fob" to a third person. She also said in evidence that it was not possible, given the overtaking of her car by the Land Rover and other circumstances, to actually see who was driving the car. Of course, giving evidence that plainly was inconsistent with her statement is a matter that affects against her credibility specifically and generally. If I acted upon her previous representation as the truth all that would mean is that at a time over a half an hour before the collision, the accused was driving the Land Rover. But I know that to be true because the accused's admission on this matter and Exhibit G1 proves it is so. However, even if I do not accept what she had previously said in the statement is true, the fact that she withdrew from what she stated previously showed on her part a willingness either to not tell the truth to assist the accused, or to qualify what she had previously said in the obvious knowledge that it might help the accused. But she still adhered to her previous statement to the police of being in company with the accused and he not returning to the house where she was waiting for Bourke and Corby to return. If her evidence was any different from her statement in that material respect I would have expected another application by the Crown pursuant to s.38 Evidence Act. 14. As with all witnesses one can accept part of what a witness says, reject other parts, reject all that is said or accept all that is said. One cannot reject all that has been said by Mr Corby or Ms Haley because many of the matters the subject of evidence by both these witnesses not only involve admissions against interest, but also are otherwise established by independent evidence, particularly the movements of Corby and Haley between 3:30am and 5:00am on the morning of 15 January 2019. 15. It is to be remembered, bearing in mind the accused was at the scene of the collision, that he has never nominated a third person, other than Mr Corby, as taking the car. I note that no question was asked of Mr Corby as to whether he took the car, nor any question of Mr Corby as to whether in fact he gave the key fob to a third person other than the accused, nor any suggestion of the name of a third person who might reasonably have been present to take the Land Rover after Mr Corby stole the handbag. I respect the accused's right to silence and his right to limit his instruction to his counsel. But the fact is he must know who the driver was. Yet there is no "evidence" or suggestion as to who it is other than "RC". 16. In the context of the submissions made by the parties in relation to the key evidence relating to the circumstances of the collision in the way it was given and by analysis of its contents, I regard the evidence of Mr Mauii and Ms Scott as more reliable than Mr Gariano. Unlike him, they did not significantly contradict themselves. They both gave a consistent account and in my view when pressed on some matters by counsel for the accused made appropriate concessions. Even though Ms Scott was not asked to make a statement until during the trial, it is quite clear from her description of the collision that not only did she see it, but what she saw accords with physical evidence shown in Exhibit D of which she could have no knowledge. Her description of the impact upon the Kia and the position of the Land Rover after the collision are in accord with the physical evidence. They are the only eyewitnesses to have a direct view of the driver's side after the collision and when the Land Rover came to rest. It is correct that it is open to finding that they both saw a person not wearing a shirt or a top. But that is not conclusive or even persuasive in light of other evidence or circumstances pointing to the accused being the driver of the Land Rover at all other times that the Land Rover was driven without the consent of the owner. It is simply consistent with the accused removing the long sleeve top at some time before he alighted from the vehicle and after he left MacDonald's at 3:45am or thereabouts, and that he was carrying it even though Ms Scott did not "notice" him carrying anything. This is consistent, in fact, with Mr Gariano's observations, in that he did not see anybody emerge from the Land Rover wearing a dark coloured long sleeve top. Not noticing something is quite understandable in the context of the particular matters that the witness had to take into account in a very short period of time. It is to be borne in mind the similarity (to be fair in general terms) of the appearance of the shirtless person with that of the accused having regard to how he appeared on 20 January 2019 (in Exhibit E) and the evidence of his physical dimensions that emerged in the trial, including his admissions in that regard. 17. Apropos Mr Gariano's observations, he did not stop his car until after the collision which he did not see. He initially described a person as leaving the driver's side, marking Exhibit R accordingly, and then agreed to suggestion in cross-examination to a different order of events to that shown on Exhibit R and in his oral evidence in chief. His initial description of both people does not include a description of the shirtless person that was suggested and accepted in cross-examination. He initially said a person with a "light coloured" top got out of the passenger's side. Importantly, Mr Mauii gave evidence that after tending to Mr Hill he went over to the passenger side of the Land Rover and the passenger's door was "closed". Although Mr Gariano did not describe the closing of the passenger side door, he obviously was describing an opening of it by somebody who was fleeing the scene. Mr Tahitahi could only be certain of the driver's side door being open whilst he thought another door may have been open; he wasn't "100% certain". 18. The submission was put, by counsel for the accused, in terms of the observation of a passenger leaving the vehicle, that Mr Gariano was the only person who had a view of or approached from the passenger side of the Land Rover. This is not correct. Mr Tahitahi approached the Land Rover from the same direction. He was driving in the same direction as Mr Gariano and parked his vehicle a similar distance away. At that point the road is two lanes wide for southbound traffic. The two cars of Gariano and Tahitahi were either in front of one another or side-by-side. There is no evidence either way, except for the estimates both men made of where their car was in relation to the damaged vehicles, particularly the Kia. In any event it is clear on their respective versions that Mr Tahitahi must have got out of his car first (whether his car arrived first is unable to be determined), because he went over to assist Mr Hill and saw a man, obviously Mr Mauii, coming from the other side of the road to assist Mr Hill. They were the first two people to get to the Kia. Mr Tahitahi did not see anybody get out of the Land Rover. Defence counsel, in the context of making submissions about what may or may not have been seen by Ms Scott, did a calculation that suggested Mr Mauii had left his car to go across within a minute, or specifically in a matter of seconds, after finishing the Snapchat filming (Exhibit Q) which started on Mr Mauii's version about six or seven seconds after the collision and ran for a matter of seconds before he pulled over. Mr Gariano on the other hand, told the court that he waited in his car for "a while" before he got out. It is clear from the respective chronologies that he got out of his car after Mr Tahitahi came to the aid of Mr Mauii, and Mr Hill. As earlier noted, Mr Gariano in cross-examination not only changed the position of the two men (by clothing) from the positions he gave them in his evidence in chief, he changed his evidence to suggest that instead of having a "light-coloured" top one of the men may have been "bare chested". To repeat the point earlier made, it is the fact that Mr Gariano's descriptions, even if accurate, do not accord with the accused wearing a long sleeved black top or "hoodie" 50 minutes earlier. It serves to confirm that the long sleeve top was removed before the collision but could have been carried away. It was not left behind. 19. When events happen quickly and people are seeking to adjust to what must be a traumatic situation, or a dramatic situation, errors can be made in description, identification, recognition and the like. That is why in identification cases going back to Davies & Cody v The Queen (1937) 57 CLR 170, courts have emphasised the special care required in considering or even admitting evidence of identification by persons who are unfamiliar with a suspect, or have limited opportunity to view the person. Modern warnings are much more sophisticated and detailed (s 114-116 Evidence Act 1995; eg. Domican v The Queen (1992) 173 CLR 555). Caution also needs to be exercised in considering the recollections of people who had limited time to make observation in circumstances where many things were occurring and not all things can obviously be taken in or noticed. This caution applies to all witnesses doing their best to recall events such as recounted by the various civilians who either saw the collision or saw its aftermath. As is well known, the capacity for mistake in "identification" is real, sometimes even in identifying a suspect who was previously familiar to the witness. In this matter I bear in mind allowing for this caution I must exercise, the capacity for honest witnesses to be mistaken or otherwise unreliable as pointed out earlier. 20. The accounts of Mr Mauii and Ms Scott are independently consistent. They support one another materially. Mr Gariano describes two people leaving the Land Rover at the same time one of whom is not seen by anybody else. Not seen by at least two people who had an earlier and more contemporary opportunity to view the passenger side of the vehicle than Mr Gariano. However, to put it in more blunt terms if Mr Mauii is accurate, bearing in mind what can be seen in Exhibit Q which clearly demonstrates that the driver of the Land Rover had left the vehicle already before Mr Mauii had even turned on his Snapchat device, thus before he stopped his car and before he crossed the road to aid Mr Hill, then Mr Gariano who arrived after the collision, who thought, not unreasonably, that the Land Rover had in fact crossed over the median strip to collide with the Kia (nobody would think that someone would be driving on the completely wrong side of a divided road) particularly could not have seen the driver leave the car or had the barest of glimpses of that occurring. With the curvature of the road, to which I have made reference elsewhere, and the line of trees, he would not have had any view of the driver's side of the Land Rover. When he got out of his car and went closer to the Land Rover it was too late then to see the driver on any version. Not only do I regard Mr Gariano as unreliable in the manner and detail of his evidence in material respects, even accepting his evidence at face value, it only provides support for two people leaving the vehicle. But in the context of other circumstances pointed out in this judgment (and the Crown's submissions) it does not raise the reasonable possibility of someone else being the driver, other than the accused. 21. These observations having been made, there is still the evidence of Adam Smith to be considered. Assuming that he is referring to an incident involving the Land Rover showing a continuing disobedience of public safety in the manner of driving, one cannot ignore the fact that his evidence provides a basis for concluding that at 4:00am, or just before, there were two people in the front of the car, one in the driver's seat with a similar haircut to that of the accused, and the other in the passenger seat of dissimilar description wearing clothing, on one view of the evidence, with pink colouring which the accused was not wearing. The pink colouring, on a close examination of his evidence, was said to be part of the clothing. He also said the person could have been a female, was "young" and "small in the seat". These observations may support the central proposition that, 35 minutes later two people left the Land Rover after the collision. But the fact that there was a passenger in the car at that time does not in my view displace the conclusion the can be reached beyond reasonable doubt that at all relevant times up to the collision, the driver was the accused based on all the evidence of the case. As the accused had taken the car, he had no reason to hand control of it over to another person who had no part in the vehicle's taking. 22. By reference to the various circumstances identified by the parties in their submissions, all the evidence points to the accused driving the Land Rover. The accused is the only person (as the Crown pointed out) known to the court to have driven the Land Rover. He was driving the Land Rover at 3:44am and, on his own admission he got out of the Land Rover on the driver's side after the collision. His explanation for how he came to be on the driver's side is preposterous and his exit from the motor vehicle is inconsistent with the observations of the only two eyewitnesses who saw the driver leave from the driver's side. His explanation in the second interview for remaining in the car, notwithstanding the manner of driving of the fictional driver (RC) on a previous occasion, and during this evening had caused him fear, when he had opportunity before the collision to get out of the car, was also preposterous. There was no explanation for him remaining in the car other than he was driving it. 23. If it was reasonably possible that there was a second person in the car, then with regard to the evidence in the trial, noting the unsatisfactory character of Mr Gariano's evidence as it is called upon to assist the accused, then that person was indeed a passenger. There is no evidence of any occasion when the accused passed the driving to another person. As Mr Corby was not in the car, no representation was made by the accused and no suggestion has been made by the accused's counsel as to whom that person would be. The supposedly reasonable possibility that the accused drove for a period of time, but then gave the driving duties to an unknown person, having gone to the trouble to take the car in the first place on the invitation of Mr Corby, is not a reasonable possibility. It is pure speculation, not supported by the reliable evidence of what occurred post collision or any evidence. The observations of Mr Gariano in conjunction with the observations of Adam Smith and Constable Hand, leave open the reasonable possibility of a second person, but the combined effect of all the circumstances and direct evidence does not leave open a reasonable possibility that that second person was the driver. 24. Other evidence of significance post collision is the CCTV footage in Exhibit H2 which shows only one person moving along Bon Mace Close after the collision, the obvious direction for the occupant(s) to flee. Nobody saw a person connected to the collision moving north or south on Wyong Road after the collision, and Ms Scott's evidence in Exhibit V has the driver moving to the front of the Land Rover, or into the bushes, in the direction of Bon Mace Close. That evidence does not support two people in the car at collision. Constable Hand's evidence is equivocal, but he; "is sure that there was at least one set of footprints." The position of the pink towel in the car post collision (Exhibit D31) is supportive of the accused being behind the driver's wheel at collision. The only relevant DNA profile developed on it was that of the accused, it is caught behind the steering wheel, not loose in the car. The accused admitted using it to "wipe down" the car for DNA or fingerprints. I myself raised the fact that the collision would have disturbed the position of "loose items" such as sunglasses and drink containers (it loosened the rear vision mirror). But the position of the pink cloth as shown in Exhibit D31 is less likely to be an artefact of the collision given its suspended position in the car and making allowance for the effect of gravity. 25. Despite all the lies that the accused told in the first interview five days after the fatal crash, the person that he nominated as the driver of the Land Rover was in fact the person who stole the handbag in which the "key fob" was located. As pointed out earlier, this is not a coincidence. In the context of all the lies that he told, it must be the case that he nominated Corby because he knew that Corby had stolen the "key" to start the vehicle. Thus, in shifting the blame to Corby, he was identifying a person that he knew had a connection with the circumstances in which the Land Rover was taken. He was not to know, of course, at that point (or even later when he was interviewed again) that the police were able to track the movements of Corby and his companions over the period of time that the Land Rover was being driven around the Central Coast. It is obvious that he had not applied his mind at the time of the first interview to the risk that although he knew Corby had an association with the taking of the "key fob", if he didn't drive the Land Rover he could not have left DNA or fingerprints there (although he said the driver had on gloves). But he had applied his mind to that issue and more importantly the fact that he was alert to having left his own fingerprints and DNA on or in the Land Rover in the second interview. That is the reason in the second interview when providing more particulars about "RC" he added the very important point that RC was "ballied up and gloved up" the "entire time" he was driving the Land Rover up until the collision. The accused in the second interview for the first time, expressly admitted being present in the car at the time of the collision, but also admitted to the use of the pink towel to 'wipe down' the car, as earlier mentioned. Because, even when in the Land Rover, he appreciated there was a likelihood of his DNA and or fingerprints being later found on or in, the Land Rover. As he said in that interview at one point, he had "three months" to think about the matter. The problem was he did not think through the difficulty he faced in circumstances where it could be shown that Corby had nothing at all to do with the driving of the Land Rover at any time. 26. The two "lies" identified by the Crown as evidence of consciousness of guilt as to the issue of "driver" as it directly relates to Counts 1-3 and indirectly as to Count 4, in the context of the legal directions that I give myself, can be so regarded. They are, that the accused had not driven the Land Rover at all (in the first interview) and that Ryan Corby was the driver of the Land Rover at relevant times (in both interviews). I can find no reason to conclude that they are anything but attempts by the accused to distance himself from the circumstances of the collision and to distance himself from responsibility as the driver, in a futile attempt to blame somebody else and protect himself. No good reason exists otherwise to implicate Mr Corby. During the second interview, he appreciated, particularly when he was shown a photograph of himself driving the car, that the police could prove that he did drive the car at a particular time after the car was stolen. He was also clearly trying to distance himself from his responsibility for taking the car in the circumstances as described by Mr Corby. But he falsely implicated Mr Corby in the understanding that he knew that Corby had taken the key for the car from the handbag of the custodian of the car because he was present when that was done or was aware by being told by Corby that is what he did. 27. These two significant lies can be used, as I have directed myself, to support the conclusion that the accused at relevant times was the driver. They are relevant to proof of guilt. They need to be seen in the overall context of the character of the interviews and other lies the accused told. 28. In summary, the various untruths are, in the first interview, that the accused did not expressly admit being present at the collision; falsely identified Mr Corby as the person who stole the car and was driving it at relevant times; falsely claimed that Corby had driven so erratically on a previous occasion that he was never going to get into a car with him again; falsely said that Corby was driving the Land Rover with gloves on; falsely said that he had never been in a crash in his life; falsely claimed that he had dropped his wallet in a car driven by Corby on a previous occasion and that Corby had held on to it to incriminate him at some point; made no reference to the person ever wearing a balaclava; falsely claimed that by giving the initials 'RC' had "lifted a weight off (his) shoulders" and falsely stated that 'RC' had made him touch the car in some way to implicate him in the stealing of it. 29. In the second interview, he admitted being present at the collision, but falsely claimed that, 'RC' stole the car and was driving the car at relevant times including at the collision; falsely stated that 'RC' persuaded him or forced him to drive through at the McDonald's restaurant because he didn't want his sister who worked at McDonald's to see him driving his mum's car; falsely claimed that 'RC' told him that it was "his mum's" car; falsely claimed that the driver of the Land Rover was at all times up until the crash "ballied up" (wearing a balaclava) and wearing gloves; gave a preposterous and in my view, clearly false account of his position in the car at the time of the impact (wedged between the front seats with his back to the collision); falsely described the condition of the driver after the impact; falsely claimed that when he first got in the car there was a second man wearing a "bally"; falsely claimed that the driver and a second man who had a balaclava and gloves were going to do an armed robbery and had some sort of weapon in the back of the car; falsely claimed that the second man got out of the vehicle before the collision; falsely claimed that the driver was setting him up in some way by getting him to leave his DNA and fingerprints in the vehicle; falsely claimed that he begged 'RC' to stop "for the whole time I was in the fucking car"; falsely described his position in the car after the impact and how he was able to get out of the car; falsely claimed that he was picked up from a house at Killarney Vale by 'RC' in the stolen car and falsely claimed he could not get out of the car before the collision because he was fearful of the manner of driving of " the other driver". Perhaps there are other untruths as well. The above identified untruths or lies give some flavour to the convoluted way in which it is quite clear the prisoner on both occasions was seeking to talk his way out of trouble or, out of his own mouth, illustrated the lack of credibility of his account. As his counsel conceded in the course of submissions, much of both interviews contained representations by the accused that were clearly untrue and totally unworthy of acceptance. Apart from his denial of driving at the point of impact and undisputed admissions against interest, none of the matters I have identified or 'lies' were pressed as true in submissions by the accused's counsel. 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 Tendering Party Tendered Through Description Tendered 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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 February 2021