Police v NEIL [2021] NSWLC 3

Local Court New South Wales

Medium Neutral Citation: Police v NEIL [2021] NSWLC 3 Hearing dates: 17, 18, 23 March 2021 Decision date: 18 June 2021 Jurisdiction: Criminal Before: Farnan LCM Decision: Guilty of sequences 2, 3, 4, 5, 6, 10, 11, and 13 Not guilty sequence 12 Catchwords: CRIME – driving offences – identification – circumstantial case Legislation Cited: Crimes Act (NSW) 1900 s33B Road Transport Act (NSW) 2013 s118 Cases Cited: R v Hamilton (1993) 66 ACrimR 575 R v Hayles (1990) 54 SASR 549 Category: Principal judgment Parties: Police (Prosecutor) Aleck Neil (Accused) Representation: Counsel: Ms O'Rourke (Accused)

Solicitors: Sergeant Kitchener (Police) Legal Aid NSW (Accused) File Number(s): 2020/00130462

Judgment 1. On the night of 30 April 2020 and the early hours of the morning on 1 May 2020 a grey BMW was involved in a number of police pursuits, and other offences, at different locations around greater Sydney. The vehicle stopped after driving into a dead-end in Willmot at 3.29 a.m. Two males were in the vehicle at that time. They both ran but were arrested soon after. It is not in dispute that when the vehicle stopped in Willmot this defendant Mr Neil was driving the vehicle, and the co-accused Mr Clayton was a passenger in it. 2. Mr Clayton pleaded guilty to being carried in a conveyance knowing that it was stolen. This hearing has related to a number of offences where Mr Neil is alleged to have been the driver of the vehicle. The Court Attendance Notices are not in chronological order, but I have placed them in order to summarise the allegations. 3. The vehicle was stolen on 27 April 2020 by a person or persons unknown. At 5:22 AM on 30 April 2020 Mr Neil was driving it on Anzac Parade Maroubra. He has pleaded guilty to sequences 7 (driving while disqualified) and 9 (speeding at more than 45 km/hr over the limit) in relation to that driving. 4. At 11:29 PM that day Mr Neil does not dispute that he was driving the vehicle at Forest Lodge, and that it was involved in a pursuit with police that ended at 11.31 p.m. (sequence 1). 5. Sequence 10 is an allegation of a police pursuit on Anzac Parade at Kingsford between 11:35 PM and 11:36 PM. The defendant has pleaded not guilty. The issue is whether I am satisfied beyond a reasonable doubt that he was driving the vehicle at that time. 6. Sequence 11 is an allegation of a police pursuit at Malabar between 11:40 and 11:41 PM. The issue is whether I am satisfied beyond a reasonable doubt that the defendant was driving at that time. 7. Sequence 4 is an allegation of using an offensive weapon to prevent lawful apprehension at 1:40 AM at the BP service station at Silverwater. The vehicle pulled in to the petrol station and a person exited the back seat and started to fill the car with fuel. Two unmarked and one marked police vehicle arrived quickly on the scene, parking generally in front of the BMW. The vehicle was driven between two of those vehicles, in the direction of a police officer who was between them, struck those vehicles, and drove off at speed. The defendant has pleaded not guilty to that offence. 8. There can be no question that whomever was driving the vehicle did so to avoid apprehension. The issue is whether I am satisfied beyond a reasonable doubt that this defendant was driving, and if so, whether I am satisfied as a matter of aggravation beyond a reasonable doubt that he knew when he drove the vehicle towards the two police vehicles that there was also a police officer, Constable Abawi, in the path of the vehicle who was required to jump out of the way to avoid being struck. Although the latter is not an element of the offence, it was submitted on the defendant's behalf that if I am satisfied he is the driver I could not be satisfied beyond a reasonable doubt that he knew that there was a police officer in the path of the vehicle, because at that point in time he may have been looking at Constable Saab who was trying to break the driver side window of the car. 9. Sequence five is an allegation of obtaining a financial advantage by deception, relating to filling up the vehicle with petrol at the BP service station at Silverwater. The pumping of petrol is captured on CCTV. Although this accused was clearly not the person who actually pumped the petrol, that being an unidentified woman, the prosecution relies on an inference that the driver of the vehicle, knowing that it was being sought by police, had no intention of having anyone in the vehicle pay for the petrol when they pulled into the petrol station. 10. Sequence 12 is an allegation of predatory driving with intent to do actual bodily harm at 2:17 AM on the M4 at Auburn. Sequence 13 is an alternative to sequence 12 of menacing driving with intent to menace at the same time and place. The issues in relation to these two sequences relate first, to whether I am satisfied beyond a reasonable doubt that the defendant was driving the vehicle at that time. If I am so satisfied, am I satisfied beyond a reasonable doubt that the driving was predatory, and done with intent to inflict actual bodily harm on Sergeant Fowler who was driving Parramatta 14 and had to take evasive action to avoid a collision. If I am not satisfied of that, am I satisfied that it was menacing, and done with intent to menace Sergeant Fowler. 11. Sequence two is an allegation of driving while disqualified, covering the whole period between 11:25 PM and 3:30 AM. There has been a plea of guilty to this offence, however there is a dispute on the facts as to the period during which the driving took place. 12. Sequence 3 is an allegation of driving in a manner dangerous to the public. This also includes the entire period between 11:25 PM and 3:30 AM. Again, there has been a plea of guilty to this offence however there is a dispute on the facts as to the period of time during which this accused was driving. The facts in relation to this include the sideswipe of a police vehicle at 2:48 AM at Chifley. 13. Sequence six is an allegation of taking and driving a conveyance knowing it had been taken without the consent of the owner, between 11:25 PM and 3:30 AM. The defendant has pleaded guilty to this offence, but disputes the facts in relation to it. He does not dispute that he was driving it at the start of that time period, nor at the end of that time period, however he does dispute the time periods in respect of the offences to which he has pleaded not guilty. 14. These are criminal proceedings and the prosecution must prove to my satisfaction beyond a reasonable doubt each element of each offence. There has not been a defence case. There is no onus on the accused to prove anything. In relation to circumstantial evidence, the prosecution must prove beyond a reasonable doubt that there is no reasonable hypothesis available on the facts as found that is consistent with the innocence of the accused. 15. To prove that the accused was driving on every relevant occasion, the prosecution relies on direct identification evidence from Constables Saab, Kumar and Awabi in relation to sequences 4 and 5. In relation to other sequences in dispute, the prosecution relies on circumstantial evidence arising out of the nature of the offending, the observations made by officers and timeframes involved, and my own capacity to make an identification from photographs and my observation of the accused. 16. There are a number of agreed facts pursuant to section 191 of the Evidence Act, set out in Exhibit 1. It was also conceded by Ms O'Rourke that the defendant was driving the vehicle when it came to a halt in Willmot, and that he was arrested shortly afterwards. 17. It is clear that following the three pursuits in Forest Lodge, Kingsford and Malabar, police determined that for the safety of the public and police attempts would be made to arrest the driver of the vehicle when the vehicle was stationary. Two police helicopters, Polair 7 and 9, were used to track the vehicle. During the incident the vehicle went through numerous speed cameras travelling at speeds in excess of the speed limit. On one occasion the vehicle was travelling at 196 km an hour in a 60 zone. 18. The incident took place during the 2020 Sydney wide lockdown restrictions for the Covid 19 pandemic. At least one witness made reference to there being less traffic on the roads than normal as a result (Inspector Beckinsale Exhibit 6). 19. Although the vehicle was under observation for much of the four hour period, there were some times when it was not able to be seen. That includes the period after the pursuit in Glebe and before the pursuit in Kingsford. It is argued by Ms O'Rourke on behalf of the accused there is a reasonable hypothesis consistent with Mr Neil's innocence, which is that some other person was driving on some or all of those occasions. It is an agreed fact that at 1:40 AM there were at least three people in the vehicle (para 19 exhibit 1). It is also agreed that at 2:41 AM two passengers exit the vehicle from the rear passenger doors in Chifley (para 29 exhibit 1). It is also an agreed fact that no recordings from Polair or police vehicles of the pursuit show any driver or passengers in the vehicle. 20. DNA results from the steering wheel of the vehicle show profiles of persons other than this accused, although they are not able to be identified. 21. Polair 9 observed the vehicle at 11:45 PM travelling southbound on South Dowling Street at Moore Park. Polair 7 observed the vehicle at Engadine, travelling to Sublime Point and backwards and forwards across along the Princes Highway and Princes Motorway, then along Heathcote Road towards Liverpool at high speeds. 22. Exhibit 9 is a compilation video of vision taken from two Polair helicopters during the entirety of the four hours of the vehicle's movements. It is an agreed fact that there are only short periods of time when the vehicle is not visible to the helicopter or in that vision, being largely periods when the vehicle was in a tunnel. 23. Exhibit 1 sets out (after paragraph 38) times that Polair did not have the vehicle under observation after 11.46 p.m. The longest of those periods is between 2:10 and 2:17 AM, a period of seven minutes. Other periods are two minutes or less during which the vehicle is in either the M4 or M5 tunnels. In relation to the seven minute period it appears that Polair lost view of the vehicle after it went into the M4 tunnel West and did not locate it again until just after the vehicle had driven towards police car Parramatta 14 driven by Sergeant Fowler, travelling against the traffic on the M4 at Lidcombe. 24. That video has been overlaid with the police radio transmissions as I understand it in real time. Only short portions of that exhibit have been played during the course of the evidence. They include periods of time where the defence case is that the vehicle slowed or stopped for no apparent reason, leading it is argued to an available inference that the driver of the vehicle could have changed between 11.29 p.m. and 3.29 a.m., and more critically, between 1.40 a.m. and 2:17 a.m. (when the Silverwater and Auburn offences are alleged to have been committed) and 3.29 a.m. (when the accused admits he was driving).