Police v NEIL

Speed camera evidence

1. There are four photographs taken by speed cameras, which the prosecutor argues can be used to identify this accused in combination with the other evidence. The defence has also tendered an additional camera photo. All those photos are exhibit 7. I accept that viewing them electronically provides far better resolution than any attempt to view printed copies of those photographs, and I have viewed each photograph on a computer screen to assist in understanding the submissions.
2. The first front on speed camera photo is at 5:22 AM on the 30th April at Anzac Parade Maroubra (Photo 1). That photograph shows a male with a beard, a cap and a hoodie driving the vehicle, a male without a beard in the front passenger seat who is not Mr Clayton, and a female leaning between the two front seats from the back seat. The defendant does not dispute that the male driving is him. He has pleaded guilty to the offence detected by that camera (106 km/hr in a 60 zone).
3. The second front on camera photo is at 1:08 AM on 1 May when the vehicle was detected travelling at 142 km/hr in a 60 zone at Elizabeth Drive Mount Prichard (Photo 2). That photograph shows a male with a beard in the driver's seat and a person without a beard in the front passenger seat. The person in the passenger seat is not Mr Clayton. It is not possible to see whether there is anybody in the back seat in that photograph. It is not possible to identify the clothing worn by the driver. I do not consider there to be anything about the features of the driver in that photograph that are in any way inconsistent with the accused, as shown in the photograph taken at 5:22 AM and the photo taken after his arrest (Exhibit 18). However, it could not be used to specifically identify him.
4. There is an additional photo from that same speed camera tendered on behalf of the accused taken at 00:42.20 (that is, about half an hour earlier than photo 2), the photo marked YYYY in exhibit 7 (Photo 3). It is submitted on behalf of the accused that there are two males visible in the front seat of the vehicle in that photograph and the male in the passenger seat appears to have a beard as does the male in the driver's seat. I do not agree. On my viewing of that photograph the driver of the vehicle is consistent with being the same person as the driver of the vehicle at 1:08 AM at that location, and is consistent with being the accused. The passenger is not sufficiently clear to be able to say that it is the same passenger as the person in the car at 1:08 AM, however on my viewing of that photograph it could be. I do not accept that that passenger is able to be seen as having a beard. I have carefully viewed that photograph on a computer at the best resolution possible to make that finding.
5. The next front on camera photo is taken at 1:26 AM in the M4 tunnel eastbound at Croydon when the vehicle is travelling at 196 km an hour in an 80 zone (Photo 4). It appears to show a male with a beard driving the vehicle and a person without a beard in the front passenger seat.
6. The final front on camera photo is taken at 2:08 AM at the same location as the third, travelling at 193 km an hour in an 80 zone (photo 5). I accept that the person in the passenger seat in the photos 1, 2, 3 and 4 is not the same person as the person in the passenger seat in the photo 5. Having seen Mr Clayton when he entered his plea on 17 March 2021, and also having seen a photo of him (exhibit 22), the front passenger in the fourth photo is Mr Clayton. He was arrested in the vehicle at 3:30 AM.
7. However, the driver has the same facial features in each photograph, including the feature of a beard, appears to be wearing the same hoodie in photos that are sufficiently detailed to show it, the seatbelt is at the same angle and he is the same height relative to fixed points in the vehicle. He bears a strong resemblance to Mr Neil, and to the person in Photo 1 who is Mr Neil.
8. I accept beyond a reasonable doubt that at some time between 1:26 AM and 2:08 AM the person in the front passenger seat of the vehicle has changed. I do not accept that the evidence of the speed cameras shows that the driver has changed, or that it is inconsistent in any way with the driver being the same person as the accused. The speed camera photos are consistent with Mr Neil being the driver on every occasion shown in them.

Evidence of opportunity for people in the vehicle to change places

1. The agreed facts set out after paragraph 38 times during which the vehicle was not under observation by Polair 7 or 9. Polair 7 first picked up the vehicle shortly after the pursuit at Malabar which had been terminated a short time after 11:39 PM (see Exhibit 6 statement of Inspector Beckinsale).
2. The first pursuit, to which the accused has pleaded guilty, was terminated in Glebe at 11:30 PM. At 11:31 PM the vehicle goes through a red traffic light at the corner of Oxford and Crown Street Darlinghurst. At 11:32 PM the vehicle goes through a speed camera at 121 km an hour at Moore Park. At 11:32 PM the vehicle goes through a red light at the intersection of Anzac Parade and Lang Road. At about 11:34 PM the vehicle is observed by S/C Wilkins (Exhibit 5) going through the intersection of Anzac Parade and Allison Road southbound. The vehicle is then under continuous observation while being pursued by Senior Constable Wilkins (pursuit goes for two minutes and 48 seconds and finishes with the vehicle travelling southbound on Anzac Parade in the northbound carriageway at 11:36 PM).
3. I do not consider that there is any reasonable possibility that the driver of the vehicle changed between 11:30 PM and the commencement of the pursuit by Senior Constable Wilkins. Noting the way in which the vehicle was being driven when observed in Glebe, the speed at which it was being driven through the camera at Moore Park, the observations of the vehicle travelling at at least 100 km an hour by Senior Constable Wilkins, the fact that the vehicle went through a red light on Oxford Street and that the driver must have been aware that he was being sought by police following the incident in Glebe, I do not consider that there was any practical opportunity for the driver of the vehicle to change between the incident in Glebe and the pursuit by Senior Constable Wilkins.
4. The next contact by police with the vehicle is when Inspector Beckinsale is driving southbound on Anzac Parade at Malabar at about 11:39 PM. He was driving a fully marked police vehicle. He observed the vehicle catch up to him, then slow down then ultimately overtake him after he had stopped. The pursuit then ensued, which was terminated after the vehicle reached speed in excess of 130 km/h.
5. There was an opportunity for the driver to have changed during the period between the termination of the pursuit by Senior Constable Wilkins, and the first observation of the vehicle by Inspector Beckinsale. Although the locations are only a short distance apart, some minutes had passed, though not longer than one would expect to take to travel that distance.
6. Next contact with the vehicle was Polair 9 on South Dowling Street at Moore Park. The vehicle was then under continuous observation, and was filmed from a police helicopter, until it entered the M4 East tunnel at 1:25:25 AM. It was in that tunnel for one minute and 53 seconds. Photo 4 referred to above was taken during this period.
7. Noting that the vehicle was travelling at 196 km an hour at the point where it passed the speed camera, I do not consider that there is any reasonable possibility that the vehicle stopped, or slowed enough for the driver to be changed, during this period in that tunnel.
8. The incident at the BP Silverwater occurred at 1:40 AM. The prosecution case is that at that point Mr Clayton was the front seat passenger. Clearly he was not the front seat passenger at 1.26 a.m. when photo 4 was taken.
9. Between 1:26 and 1:40 there are a number of occasions where the Polair footage shows the vehicle slowing down, turning, doing a number of U-turns and at one point stopping. It has been submitted that there was an opportunity during this period for the driver to have changed. It is not suggested that anybody is seen exiting the vehicle, however as I understand the submission it is that the driver could have changed places with another person in the vehicle wholly within the vehicle. I accept that that is a theoretical possibility, and clearly there was a change in the front seat passenger. (Although it is possible, it was not argued that the driver could have been changed within the vehicle while the vehicle was moving).
10. At 1:55 AM Polair shows the vehicle to be stationary for about half a second.
11. At 1:57 AM Sergeant Fowler observed the vehicle on Prospect Highway.
12. The next time the vehicle was not under any observation was between 2:07 and 2:09 AM when it again entered the M4 East tunnel. Photo 5 was taken during this period. The vehicle was travelling at that point at 193 km/hour. Again, I do not consider there is any reasonable possibility that the vehicle stopped or slowed sufficiently for drivers to be changed during this period in the tunnel.
13. After coming out of the M4 tunnel eastbound, the vehicle did a U-turn and headed into the M4 tunnel westbound at 2:10 AM. There was a seven minute period during which the vehicle was not under helicopter observation, presumably including approximately two minutes during which the vehicle navigated that westbound tunnel. There is no speed camera evidence from the period during which the vehicle was in this tunnel, nor is there any evidence as to where the vehicle went before it was next picked up by the police helicopter at 2:17 AM travelling westbound on the M4 at Lidcombe.
14. I accept there was an opportunity for drivers to have changed during this 7 minute period.

Evidence in relation to the number of people in the vehicle

1. There are a number of police officers who say they saw either four or five people in the vehicle when they observed it.
2. Constable Guthrie believed that she saw four people in the vehicle through the back window of the car when she was pursuing it in Glebe at about 11.30 p.m. (tp 19).
3. Neither Senior Constable Wilkins, Constable Mendyk nor Inspector Beckinsale was able to see inside as a result of the dark tinted windows and lack of lighting.
4. None of the speed camera photographs are sufficiently detailed to show anybody in the back seat.
5. At 1.40 AM during the incident at the Silverwater BP Constable Laura Mitchell said she saw 3 people in the back of the car. Constable Awabi believes there were 3 in the back and 2 in the front. Senior Constable Saab, Constable Broadhead and Senior Constable Kumar did not see how many people were in the back of the vehicle.
6. Ms O'Rourke submits that Constables Mitchell and Awabi are the most reliable witnesses as to the number of people in the back of the BMW even though, as shown by the CCTV, they had the shortest time to make observations.
7. Constable Mitchell was driving the second unmarked vehicle to arrive at the service station. She says that she saw three people sitting in the back of the car and two in the front. I note that she does not appear in the CCTV at all, although she says that she was getting out of the police vehicle when she could see three silhouettes in the back seat. She saw Senior Constables Kumar and Saab trying to access the driver's side and said "by the time I got out, the BMW was surging forward and rammed our vehicles". She said she could see clearly through the rear passenger window.
8. I consider that there is a real question about whether Constable Mitchell was in fact able to make the observations she said she made of the number of people in the vehicle with the accuracy she asserted. She was in the process of getting out of her vehicle when she had the opportunity to observe. The window through which she was making the observations was darkly tinted, as shown in the CCTV as it drives off and as described in the evidence of other officers. She says that the observations were made just as the vehicle was surging forward ramming the police vehicle from what must have been close to a 90 degree angle from her point of view. I accept that she believes that she saw three people in the back seat. Whether that observation was accurate has to be assessed with due regard to the very short time available to make observations and the undoubted dark tinting on that window of the vehicle. I do not accept her evidence as proving that there were three people in the back seat.
9. Constable Abawi was in the rear passenger seat of the vehicle driven by Constable Mitchell. He was the officer directly in front of the vehicle when it drove towards him. Constable Broadhead had already left the seat in front of him, leaving the front door of the vehicle open meaning Constable Abawi had to go around it. The CCTV confirms his evidence that he had to jump out of the way as the BMW accelerated forward. There is no doubt he would have been hit had he not done so. He said he was trying to reach his baton as he was running towards the car and saw Senior Constable Saab punching the window. He said there were two people in the front of the car and three people in the back. He also had a very limited opportunity to make observations, although he was doing it through the front windscreen which was clear. He was moving the whole time. From where he was making his observations the front seat passengers must have at least partly obscured those in the back seat. He also says he was looking directly at the driver.
10. I do not consider the evidence of these two officers sufficient to satisfy me that there were three people in the back of the vehicle at that point. Neither Senior Constable Saab nor Kumar noted how many were in the back in their observations through the front windscreen, and they had seconds longer to make observations.
11. At 2:41 AM two people are seen to get out of the back doors of the vehicle in Chifley in the helicopter footage. At 3:30 AM two people are seen to leave the vehicle in Willmot and the accused and Mr Clayton are arrested soon after.
12. The prosecution case is that there were only ever four people in the vehicle and that police officers who said they saw three people in the back seat were mistaken.
13. DNA evidence from the steering wheel originated from at least 3 individuals. Mr Neil was the only one for whom the sample was sufficient for comparison. DNA from other individuals was described as "not suitable for comparison due to low level and complexity" (Exhibit 17). A Powerade bottle in the passenger footwell revealed DNA consistent with two identified but unknown contributors, and a minor contributor. DNA from four individuals was found on the front passenger headrest, however only Mr Clayton could be identified. No DNA from the back seat headrests was suitable for comparison. Noting that the vehicle had been stolen several days earlier I do not consider that any weight can be placed on this in relation to who was driving the vehicle nor how many people were in the vehicle during the time period relevant to these offences.
14. Fingerprint evidence (exhibits 13 and 16) show evidence of a print unsuitable for identification but possibly coming from Michael Hurley. There is no evidence who that person is.
15. There is unquestionable evidence that there were at least four people in the vehicle at the beginning of the pursuit, and that while the vehicle was under observation by Polair only two people were seen to leave the vehicle before this accused and Mr Clayton left it in Wilmott. No person was seen to enter it. There was a limited, although some, opportunity for a fifth person to have left the vehicle during the 7 minutes when it was not being filmed from Polair. There is no evidence that anyone did.
16. It was argued on Mr Neil's behalf that there could have been a third person in the vehicle when it came to a halt in Willmot. The observer in Polair only saw two people leave the vehicle and confirmed that by radio to police on the ground. Initially some police on the ground believed that there had been a third person, however it appears that third person may have been a resident who had come out to see what was going on. I find as a matter of fact that there were only two people in the vehicle when it stopped in Willmot.
17. A person could theoretically have entered or left the vehicle between the pursuit at Malabar and the vehicle being found by Polair a few minutes later. However, there is no evidence that that occurred. Opportunity is not evidence. The evidence only ever shows three different people in the front passenger seat, and only ever shows a person consistent with the accused in the driver's seat.
18. I am satisfied that there were only ever four people in the vehicle between 11.30 p.m. and 3.30 a.m.

Visual identification evidence

1. The only direct visual identification evidence comes from police officers who were present at the service station at Silverwater, and also at the arrest of the accused.
2. In relation to the visual identification evidence I am required to give myself a number of warnings pursuant to sections 116 and 165 Evidence Act. One of the identification witnesses was Senior Constable Saab who was also the officer in charge of this investigation.
3. I have been referred to authority that an identification witness should not also be the officer in charge in a matter (R v Hayles (1990) 54 SASR 549). I accept that as a matter of best practice that would be a prudent way to run an investigation. However, Hayles was a very different case to this. The police officer in that case was off duty and at home when he was awoken at 3 a.m. by a car crash. He purported to identify the driver of the vehicle, who left the scene, after ascertaining the registered owner of the vehicle. He then purported to identify him as the driver the night before. He conducted an investigation that involved obtaining a photo identification from one of his neighbours. Senior Constable Saab was in a very different position. There is nothing in this matter that suggests that his role as officer in charge had any effect on the investigation. He was already on duty, and indeed tasked with detaining the person driving the BMW, when he purports to have identified the accused. There may be other appropriate concerns about the accuracy of the identification, however given his role in the arrest and attempt to detain the driver in Silverwater I do not consider his role as officer in charge is of particular concern.
4. Constables Saab and Kumar were the first two plainclothes officers on the scene when the BMW stopped at the BP service station in Silverwater Road. A person with long hair had got out of the back seat of the vehicle was filling the car with petrol. Exhibit 15 is the CCTV of the incident.
5. Senior Constable Saab says that he looked through the windscreen of the vehicle at the male in the driver's seat, observed him to have a hat, a hoodie, and to be a Caucasian male with a scruffy beard. He says he made those observations through the windscreen, before he started punching the driver's window of the vehicle. He said he also observed the front seat passenger but said he did not see how many people were in the car. He said he was able to see the driver for 2 to 3 seconds. He did not recognise the driver or the passenger.
6. After he started to try to break the window he said he wasn't really looking at him then.
7. About one hour and 50 minutes later Constable Saab came to the scene at Willmot where the defendant was one of two males who were under arrest seated on the ground in handcuffs some distance apart. He says that when he saw the defendant he immediately recognised him as the same person who had been driving the vehicle when he saw it at Silverwater.
8. Numerous police attended that scene. I have watched the body worn video of Constable Rylands. That officer spoke to the co-accused, not to this accused. When Senior Constable Saab arrived at that scene he had heard a radio broadcast indicating that the driver was in custody. He says that he identified this accused as the same person he had seen at the BP service station. It was put to him that in his statement he had said after observing this accused "I walked up to the other offender … I knew he was not the driver due to his description", and that he said that because rather than identifying this accused he was engaging in a process of elimination and checking that the other person there did not have a beard, and therefore whether he matched the description.
9. There is no dispute that Mr Neil and Mr Clayton look very different to each other. Having seen them both myself I do not consider there could be any possibility that one could be mistaken for the other.
10. It was also suggested that at that point in time police believed that there had been three people in the vehicle. One officer indeed is heard on the body worn video putting that to Mr Clayton forcefully. I am asked to give myself a Mahmoud direction in relation to that officer, who was not called. However, the suggestion that there were three people in the vehicle is not consistent with the observations of Polair. The observer in the helicopter saw two people run from the vehicle, and although there was another person seen in a backyard there is no evidence that person had come from the vehicle.
11. Senior Constable Saab agreed that when he spoke to the accused at the scene in Willmot about the incident at the service station Mr Neil denied that he was driving then.
12. Senior Constable Kumar also gave evidence identifying this accused. He said that when he was at the service station, after getting out of the police vehicle, he deliberately looked through the front windscreen to make observations of the driver to assist in identifying him. His evidence was "there were enough police trying to open the doors, and so therefore, the next most important role is identifying the driver of that vehicle" TP 37 18/3/21
13. He described the driver as being 20 to 25-year-old male, white, with a scruffy brown beard and a dark jumper with a white emblem on the left side of the chest. He said he thought the driver was wearing a hat as well. He described the passenger as 16 to 20 years old, Aboriginal, with a large white motif across his torso. That is an accurate description of Mr Clayton.
14. Certainly the CCTV shows Senior Constable Kumar having a far greater opportunity than Senior Constable Saab to make observations of the driver of the vehicle during the period while Senior Constable Saab was trying to break the window.
15. The evidence is that the front windscreen of this vehicle was clear, but that the passenger windows were darkly tinted. Sergeant Fowler said that they were "industry standard", and that the driver's side window was less tinted than the other side windows.
16. Senior Constable Kumar also came to the scene at Willmot with Senior Constable Saab and also says that he saw the person who was under arrest sitting on the gutter. He said "I looked, I believed he was the driver at the time the vehicle rammed us." He said he then saw another male who he recognised as the passenger in the same vehicle. He said he had no problems making out the features of the people who had been arrested and that he himself had a torch.
17. Evidence that Mr Neil has been identified by a witness must be approached with special caution before I accept it as reliable. A witness may be honest but that does not necessarily mean that the witness will give reliable evidence. Even if I think the witnesses were entirely honest in the evidence that they gave, I must still approach the task of assessing the reliability of their evidence with special caution.
18. The experience of the criminal courts over the years has demonstrated that identification evidence may turn out to be unreliable. Identification evidence can be honest but mistaken. There have been some notorious cases over the years in which evidence of identification has been demonstrated to be wrong after innocent people have been convicted.
19. In this case, Senior Constable Saab had only a very short time to observe the driver in what was clearly a situation of significant stress. Senior Constable Kumar had a greater opportunity to observe. The accused was a stranger to both officers, and it is obviously harder to identify strangers than it is to identify people who are well known to us.
20. While Senior Constable Saab said that he focussed his attention on the driver, clearly he was also focussed on stopping the vehicle from driving away and very quickly moved to try to do that. Senior Constable Kumar had a greater opportunity for observation, both from his evidence and from the CCTV which shows him looking through the windscreen of the car the whole time Senior Constable Saab is trying to break the window. The lighting was good.
21. My main concern about the reliability of these identifications is that notwithstanding both Senior Constable Saab and Senior Constable Kumar appear to have returned to a police station immediately after the incident at Silverwater, there is nothing in the evidence to suggest that either of them made any note of the description of the driver or passenger before they were at the location at Willmot almost two hours later. There was no opportunity to identify the person for example by a line-up, because both officers say that they attended the scene at Willmot and saw the person they say was the driver there. There can be a displacement effect when a description is given after a witness sees a person they believe to be the same person they saw earlier - that is, it is the later person they are describing, not the earlier.
22. While Senior Constable Saab did not accept that he was engaging in a process of elimination between the two offenders in custody at that point, I accept that in terms of a positive identification of the accused this action does diminish the weight that can be placed on the actual identification. Senior Constable Saab also had a very short opportunity to observe the driver before he started to try to break the window. Had Mr Clayton looked more like Mr Neil it may be that Senior Constable Saab would not have been certain that he had the right person.
23. It was after Senior Constable Saab had looked at both people who had been arrested that he said in his statement "I walked back up to Aleck Neil and said, 'You nearly ran over police at the service station.' He denied driving the vehicle"? It is notable that Senior Constable Saab did not say those words to this accused when he first saw him.
24. For those reasons I consider it is appropriate to use Senior Constable Saab's identification as part of the overall circumstantial case against this accused, rather than as a positive identification of him. This accused looked like the driver Senior Constable Saab had seen. He had the same skin colour and a beard. Mr Clayton did not. However I do not consider his evidence can be taken further than that.
25. Senior Constable Kumar says he observed the driver of the vehicle for 4 to 5 seconds at the Silverwater BP. He said that he was specifically observing the driver and the passenger. His descriptions of them match this accused and Mr Clayton both in their appearance and their clothing at the time of their arrest later that morning. He described what was going through his head at that time as "very intense". He said he was about a metre to a metre and a half from the windscreen when he was making his observation. He said "I was in a position to get clear observations of the driver, and that would assist us if at a later time, when, when the vehicle gets stopped or, or people run from the vehicle. That was why I needed to make those observations. There were enough police trying to open the doors, and so therefore, the next most important role is identifying the driver of that vehicle." At 37.
26. He said that when he went to Willmot he recognised this accused immediately as the driver, and Mr Clayton as the passenger.
27. In cross-examination Constable Kumar said (at 42) Q. When you attended the scene and you saw Mr Neil, you observed that he had a beard? A. Yes. Q. That in your mind, stuck out as to why the person sitting in front of you would be the driver? A. The, the thing that most - was most, I guess - the differences between the driver and the passenger was what stuck out to me so that the driver was white, the passenger was light brown. The driver was I would say early twenties. The passenger was late teens, and the driver had that brown scruffy beard that - the passenger was clean shaven. They were the, they were the big differences. Q. It's essentially - if I could put it in that way, it's a process of elimination as between the two men that were present? A. Only based off observations that I've already made, so the - yeah, as soon as I saw him, I knew that was the driver, even if I hadn't seen. If the passenger had gotten away, I would confidently say that was the driver. Q. That's because, essentially, of the beard that he had? A. Sorry? Q. Is that right? That's essentially because of the beard that he had? A. Just the totality of it. The clothing as well. Like, the jumper with the small white emblem. I remember this small white, either triangle or circular shaped emblem on the left side of his chest, and everything else was dark on the jumper, and that was another thing he was wearing. Same, same type of jumper.
28. To a degree this evidence is similar to that of Senior Constable Saab in relation to performing a process of elimination in identifying the driver. However Senior Constable Kumar clearly had a greater opportunity to make observations. He says that he had specifically noted the logo on the upper garment of the driver, and he says that he was confident that was the driver even if he had not observed Mr Clayton at all. All of those matters do make his identification stronger. Again, however, there is no evidence that he had made any notes of his observations before he attended the scene at Willmot, which is surprising given the purpose for which he says that he had made them. The risk that the description he gave in court was a description of the accused at the time of his arrest, rather than of the driver at the time of the incident, is obvious.
29. Again, I consider that this evidence should be used only as part of the circumstantial case that this accused was driving at the time of the incident at Silverwater.
30. Constable Awabi described the driver as a male Caucasian, with "like a dark sort of coloured shirt on. He had a unshaven beard, and like sort of dark coloured hair" (tp 52.18). He made those observations through the front windscreen just as the vehicle was starting up and driving towards him, causing him to jump out of the way. He was unsure whether the person had a hat on. That description was consistent with the accused but no further identification was given by Constable Awabi.

Circumstantial case as to identity of driver

1. I am able to draw reasonable inferences or conclusions from the facts I find established.
2. A case based on circumstantial evidence may be just as convincing and reliable as a case based upon direct evidence. The basic facts must be considered as a whole (not individually or in isolation). The question is whether all of the evidence leads to an unavoidable conclusion that the Crown has established the guilt of the accused.
3. The conclusion must not be based upon mere speculation, conjecture or supposition.
4. The prosecution must prove 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 offence.
5. Ms O'Rourke points to a number of occasions when Polair observed the vehicle to slow and come to a stop. The submission is that even if I conclude that the defendant is the person driving the vehicle on every occasion where it is photographed by a speed camera, there is still an opportunity for the driver to have been changed with some other person and for that other person to have been driving during the relevant time periods.
6. Ms O'Rourke also submits that the manner of driving of the vehicle is quite different at different times during the pursuit. I do accept that at different times the level of dangerousness of the driving is greater or lesser. However, I do not accept that the evidence shows the manner of driving to be different to the extent that it must have been a different person driving.
7. The relevant circumstances based on the findings I have made above are as follows: 1. The BMW was stolen on 27 April 2020; 2. Mr Neil was driving it at 5.22 a.m. on 30 April 2020; 3. Mr Neil was driving it at 11.20 p.m. on 30 April 2020; 4. Mr Neil was driving it at 3.29 a.m. on 1 May 2020; 5. between those two times the vehicle was being driven continuously, apart from periods of minutes when it was not under observation before Polair located it on South Dowling St, or because it was in a tunnel, or during one period of 7 minutes when sight of it was lost by police helicopter, during very short periods when it was recorded by Polair to be stationary, or while it was at the BP Silverwater; 6. it was driven to many different locations around greater Sydney, exceeding the speed limit through speed cameras on many occasions as set out in Exhibit 1; 7. the person in the front passenger seat changed at least once without opening a door of the vehicle, at least between 1.26 a.m. (photo 4) and when the vehicle stopped in Willmot; 8. at 1.40 a.m. at the BP at Silverwater three police officers made observations consistent with Mr Neil being the driver of the vehicle; 9. speed camera photos at 00:42, 01:08, 01:26 and 02:08 are consistent with Mr Neil being the driver at those times, although are not clear enough to directly identify him; 10. there is evidence of four people in the vehicle, one of whom appeared to be female - for the reasons given above I do not accept that there may have been five people in the vehicle; 11. two unidentified people left the back seats of the vehicle in Chifley at 2:41 a.m.; 12. at 2:48 a.m. the vehicle side-swiped a police car in Matraville to avoid a road block; 13. a person could possibly have entered or left the vehicle unnoticed by Polair between 2:12 and 2:17 a.m., when vision of the vehicle was lost after it exited the M4 tunnel westbound, or between 11.40 p.m. and 11.46 p.m. before it was picked up by Polair after the pursuit at Malabar; 14. there is no direct evidence of anyone other than Mr Neil driving the vehicle; 15. male DNA of two people other than Mr Neil was found on the steering wheel but was insufficient for analysis; 16. the vehicle was driven down the wrong side of the road towards oncoming traffic both during the pursuit at Malabar early in the events and later on the M4; 17. the vehicle was driven at excessive speeds during the entire incident, although there were times when it was driving more slowly and stopped.
8. To form the basis for a reasonable doubt a hypothesis consistent with innocence must be reasonable, and must be based on some evidence. While there is no onus on the accused to prove anything, the bare possibility that some unidentified person other than Mr Neil was driving the vehicle at some stage during this incident does not in the circumstances of this case amount to a reasonable hypothesis. The fact that the front seat passenger did change does not raise a change in the driver beyond the realm of bare possibility. In the circumstances of this case that amounts to mere speculation, and does not lead me to have a reasonable doubt when I combine it with the other evidence in the case. That includes, importantly, the evidence that on every occasion where there is any evidence of who was driving it is consistent with having been Mr Neil.
9. While the identification evidence of the driver at Silverwater is not sufficient by itself to prove the case against him for the offences allegedly committed there, as part of a circumstantial case it is strong evidence that the driver in fact was him. Combined with the speed camera photos consistent with the driver being Mr Neil, and without any evidence that I accept of anyone else in the car with similar features to Mr Neil, I am satisfied beyond reasonable doubt that Mr Neil was driving this car during the whole of the period between the pursuit at Glebe and the vehicle stopping in Willmot.
10. In relation to the incident at Silverwater it is argued that the evidence does not establish that the driver of the vehicle knew that there was a police officer in front of the vehicle when he drove it into the police vehicles, ramming the open door of one and side swiping the other, in order to make good his escape. The only available inference is that at that point the driver was attempting to avoid apprehension, and that he was using the car as a weapon for that purpose. A car may be an offensive weapon for the purposes of a s33B Crimes Act (NSW) 1900 offence (R v Hamilton (1993) 66 ACrimR 575).
11. The submission is that in the circumstances that prevailed at the BP Silverwater the prosecution has not proved beyond a reasonable doubt that the driver saw the police officer in uniform in front of the car before he drove it at him. I consider that the prosecution has proved this element of the offence. There can be no question Mr Neil knew that the vehicles in front of the BMW were police vehicles, even though they were unmarked. They had pulled up significantly blocking his ordinary departure route. The CCTV footage and the evidence of Constable Awabi shows that the driver drove directly at the gap between the two vehicles. The police officer who had to jump out of the way was in that gap. There is no reasonable inference other than that the driver saw him and drove towards him because he wanted to get away from police. Constable Awabi believed that the driver was looking directly at him. I accept beyond a reasonable doubt that he was, that he knew he was there, and that he drove towards him anyway.
12. In relation to the predatory driving offence on the M4 when the vehicle did a U-turn and started to drive back towards the police vehicle Parramatta 14 driven by Sergeant Fowler, it is submitted that I could not be satisfied beyond a reasonable doubt that the driver of the vehicle was trying to ram the police car, in particular noting that he avoided other uninvolved cars on the M4 and that he took the first possible exit having driven the wrong way down that major thoroughfare. Sergeant Fowler's evidence is that he was in lane 4 when the vehicle did a U-turn ahead of him, that he moved to lane 3 and that he was intending to move to lane 2 because he saw the vehicle headed in his direction. It was put to him that given that his estimate was that both vehicles were travelling at 120 km an hour, it would have been only two seconds between the two vehicles essentially meeting had he continued on his path. It may well have been that the driver of the other vehicle veered into lane 3 and then lane 2 in order to avoid a collision, rather than to cause one. He did not agree. He could not recall whether he was indicating when he moved from one lane to another, and it seems unlikely that he was, given the time frame involved.
13. To prove predatory driving the prosecution must prove beyond a reasonable doubt that Mr Neil intended to inflict actual bodily harm on the driver of the police vehicle. This specific intent must be proved. Clearly that is what Sergeant Fowler believed was happening. Clearly the actions of the accused put him in significant danger. However, there is no direct evidence of the intent of Mr Neil and on the whole of the evidence an inference is equally available that in the very short time available to make a decision about the direction the police vehicle was heading the accused made the wrong choice but did not actually intend to ram the police vehicle. I am not satisfied to the criminal standard that predatory driving is made out.
14. Driving directly towards Sergeant Fowler was menacing to Sergeant Fowler. He was required to take evasive action to avoid a collision with a vehicle deliberately travelling the wrong way down a major motorway. It is argued on the accused's behalf that the section 118 (4) Road Transport Act (NSW) 2013 defence is available in respect of the menacing driving offence. Section 118 is as follows: 118 Menacing driving (1) Offence - intent to menace A person must not drive a motor vehicle on a road in a manner that menaces another person with the intention of menacing that other person.… (4) Defence A person is not guilty of an offence against this section if the person could not, in the circumstances, reasonably avoid menacing the other person.
15. It is submitted that in the circumstances in which this accused found himself he could not reasonably avoid menacing Sergeant Fowler. I reject that submission. The circumstances in which the accused found himself were that he had been driving a vehicle for several hours which had been pursued by police on a number of occasions and had been followed over almost that entire period by a police helicopter. He had rammed police vehicles at the Silverwater petrol station to get away from them. He was driving towards a police roadblock on the M4 at 120 km/h. Rather than stopping at the roadblock he chose to do a U-turn and head directly back towards a marked police vehicle that was following him. Inevitably there were other vehicles on the M4 heading directly towards him. The way in which this accused could have reasonably avoided menacing Sergeant Fowler was by stopping at the police roadblock. He chose not to do that. Section 118(4) provides no defence.
16. The defendant's conduct in driving, at speed, back towards the police vehicle which had been following him at 120 km/hr was patently menacing towards the driver of that vehicle. I find that offence proved.
17. In relation to sequence 5, the only available inference is that the driver of the vehicle did not intend to remain at the petrol station longer than necessary to fill the vehicle, and did not intend to pay for the fuel.

Decision

1. I find Mr Neil guilty of sequence 2, drive while disqualified, during the whole of the period alleged. I find him guilty of sequence 3, drive manner dangerous in relation to the whole of the incident but in particular in relation to the incident of side swiping the police vehicle at Matraville. I find him guilty of sequence 6, take and drive conveyance, during the whole of the period alleged. I find him guilty of sequence 4, using an offensive weapon to avoid apprehension and 5, obtaining a benefit by deception. I find him guilty of sequences 10 and 11, both police pursuit offences. I find him not guilty of predatory driving, sequence 12, but guilty of the alternative sequence 13, menacing driving.

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