Russell v R

Court of Criminal Appeal (NSW)|2023-05-29|Before: Button J, Wilson J, Sweeney J, Sweeney JJ

Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2019/158319 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Citation: R v Butler; R v Russell [2021] NSWDC 666 Date of Decision: 09 December 2021 Before: Haesler SC DCJ File Number(s): 2019/00158319

HEADNOTE [This headnote is not to be read as part of the judgment] On 1 July 2021, following a four week trial by jury, Mr Russell (the applicant) was found guilty of manslaughter. The case against him was that, in the early hours of 18 May 2019, the applicant entered into an agreement with Mr Darren Butler to intimidate and stalk the occupants of a black Ford Territory vehicle. It was asserted that Mr Butler and the applicant had sought to extort money from one of the occupants shortly beforehand. The Ford Territory was pursued at high speeds by a silver Toyota Corolla, driven by Mr Butler. The applicant was a rear seat passenger. At 2:24 AM on 18 May 2019, the Ford Territory collided with a petrol tanker turning onto the Highway. The deceased, Mr Daniel Merrett, was killed instantly. On 9 December 2021, Judge Haesler SC sentenced the applicant to 4 years' imprisonment, with a non-parole period of 2 years 11 months. The applicant sought to appeal their conviction on the ground that the verdict was unreasonable and could not be supported on the evidence at trial. The Court held (per Button J, Wilson and Sweeney JJ agreeing), granting leave to appeal but dismissing the appeal: (1) The credibility of each Crown witness was quintessentially a matter for the jury. The tribunal of fact had a marked advantage over members of this Court in seeing and hearing the evidence given at trial. The assessment of the evidence, most particularly with regard to Mr Johnson, was a task well within the capacity of the jury. (2) Contrary to senior counsel for the applicant at trial's assertion that the Crown witness Mr Thomas Johnson was not intimidated by anybody at the service station, the Court found that the evidence of Mr Jordyn Clulow of the phone call from Mr Johnson that evening, repeatedly asking for the password to a bank account, significantly corroborates the evidence of Mr Johnson that he was being intimidated at the service station regarding providing money, at the least by Mr Butler. The CCTV footage does not undermine the verdict of guilty to any substantial degree. (3) The suggestion that the occupants of the Ford Territory were deliberately being dishonest about their vehicle being shot at (a proposition that must be rejected, in accordance with giving full weight to a verdict of not guilty, returned on a count to that effect against the applicant) was rejected, in favour of honest mistake. (4) The 000 calls comfortably demonstrate that Mr Butler was driving at very high speed and extremely dangerously for quite some time before the fatal collision occurred. A child was also taken from the Ford Territory before the collision, and the deceased's partner was warned by him to lock the doors and windows of their home. The inference can readily be drawn that the occupants of the Ford were already frightened about what was happening. (5) The Crown merely needed to prove agreement on the part of the applicant in the offence of intimidation by way of driving by Mr Butler. That was not a particularly stringent mental element about which the jury needed to be satisfied to the criminal standard. (6) Applying without elaboration the principles most recently discussed in Hanna v R, the Court held that the verdict of guilty was open against the applicant.

JUDGMENT

BUTTON J: Introduction Mr Andrew Douglas Russell (the applicant) was found guilty of manslaughter at the conclusion of a trial by jury conducted in the District Court at Wollongong before Judge Haesler SC. He was convicted and sentenced to imprisonment. He has sought leave to pursue a single ground of appeal against conviction only: the verdict of the jury is unreasonable, or cannot be supported, having regard to the evidence.
In a nutshell, the Crown case at trial was that, in the early hours of the morning of 18 May 2019, Mr Darren Butler was driving a silver Toyota Corolla in a way that constituted the offence of intimidation. The target was the occupants of a black Ford Territory, which was being pursued by the Corolla at very high speed. In the event, the Ford Territory collided with a semitrailer, causing the death of a rear seat passenger in the Territory, Mr Daniel Merrett (the deceased). Two other occupants of the Ford Territory were seriously injured.
The simple propositions for the Crown were that the intimidatory driving of Mr Butler substantially caused the death of the deceased; that driving was undoubtedly unlawful; and it was certainly highly dangerous. In other words, the elements of manslaughter, it was said, were readily established against Mr Butler, as principal in the first degree. The jury accepted that proposition, as shown by its verdict of guilty of manslaughter returned against Mr Butler, along with verdicts of guilty against him of driving in a manner dangerous and inflicting grievous bodily harm upon the other two passengers.
The applicant was a rear seat passenger within the Corolla at the time of the collision, and in the period of approximately 15 minutes leading up to it. The Crown case was that he was guilty of intimidation, and therefore unlawful and dangerous act manslaughter, by way of the doctrine of complicity. Although at trial the Crown seemingly sought to rely upon extended joint criminal enterprise, at the hearing of the appeal Crown counsel accepted that the analysis of the evidence by this Court pursuant to the ground should take place in the framework of the Crown setting out to prove a basic joint criminal enterprise against the applicant. In other words, the concession was that this Court should determine the appeal on the basis that the Crown case was no more than that the applicant was present within the Corolla, and he agreed in the course of driving adopted by Mr Butler, and which resulted in death. Counsel for the applicant expressed no discontentment with that approach.
An important aspect of the matter is that the applicant was arraigned in the same trial on a further count of discharging a firearm in or near a public place (count 5). The allegation was that, during the pursuit, the applicant discharged a firearm at least once from the Corolla as it pursued the Ford Territory. Quite apart from constituting a serious offence, that would also have constituted very powerful evidence of complicity on the part of the applicant in the contemporaneous behaviour of Mr Butler. However, the jury found the applicant not guilty of that count, and it was accepted by the Crown in this Court that that acquittal must be given full weight. How far that proposition extends, in terms of any "prohibitions" regarding evidentiary findings or lines of reasoning that arise from its application, will be discussed later.
The Crown case as maintained on appeal was that a number of circumstances, reflected upon as a whole, showed that it was open to the jury to be satisfied beyond reasonable doubt of the guilt of the applicant of manslaughter (count 1), despite their lack of satisfaction of count 5. In particular, it was said that there was important evidence that, very shortly before the collision, the applicant and Mr Butler had been involved in an effort to extort money from one of the occupants of the Ford Territory, Mr Thomas Johnson (aka "TJ"). The Crown proposition was that conduct of that kind on the part of the applicant, in concert with Mr Butler and leading up to the fatal driving, was powerful evidence that the applicant agreed in the manner of driving as well.
The responding submission for the applicant in short was that the evidence of three important witnesses about that antecedent allegation was so weak, and the evidence of the involvement of the applicant in the intimidatory driving itself so lacking, that the conviction must be quashed.
I therefore proceed to determine the simple question of whether it was open to the jury to be satisfied beyond reasonable doubt, on all of the evidence in the trial, that the applicant agreed in the course of fatal driving adopted by Mr Butler, keeping squarely in mind at all times the acquittal of the applicant on count 5.

Brief chronology of events

It is convenient first to set out a chronology of events (largely but not completely) undisputed by the applicant at trial, so that the evidential matters raised by counsel in support of the ground can be evaluated in proper context. I shall also include my understanding of the Crown case based on those largely undisputed facts at various stages.
Most of the persons involved in the matter lived in the Illawarra region of New South Wales, most of them were connected through family or intimate relationships or friendship, regrettably many of them were users of prohibited drugs, and some of them were affected by those substances at the time of the events about which they gave evidence.
On Sunday 12 May 2019, Mr Jordyn Clulow, the brother of the deceased and of Ms Kayleen Merrett, granted Mr Thomas Johnson access to his old NAB bank account. Mr Johnson and Mr Jordyn Clulow had been friends for some time. Mr Johnson, relevantly, had previously been in a relationship with Ms Kayleen Merrett, but at the time of the events in question she was in an intimate relationship with Mr Jack Hampton. There was evidence that Mr Johnson resented that change of heart on the part of Ms Merrett, and bore ill will towards Mr Hampton.
At 8:13 PM on that day, using the phone of Mr Jordyn Clulow, Mr Johnson sent a text message to his grandmother (to whom he referred as his mother) asking her to transfer the balance of an inheritance held on trust for him into the NAB account of Mr Jordyn Clulow.
On 13 May 2019, a deposit of $8,735 was made into the NAB account. Mr Johnson, accompanied by Mr Jordyn Clulow, made a withdrawal from the account.
On Thursday 16 May 2019, a second deposit of $8,735 was made into the account. Mr Johnson, accompanied by Mr Jordyn Clulow, duly made another withdrawal.
In other words, the Crown case was that Mr Johnson had available to him a significant amount of money in mid May 2019.
I interpolate that the times in the next paragraphs are derived from Exhibit AA. That is a collection of timed and dated text messages retrieved from the phone of Mr Johnson. The exhibit shows that all of them give a time expressed as "UTC +0". Although at trial there was other evidence about the times of these messages, and there seemed to be, with respect, some confusion at the Bar table about their true chronology, I recount the following in Australian Eastern Standard Time (AEST), having added 10 hours to UTC (what used to be called Greenwich Mean Time), that addition based upon the fact that in May 2019 there was no daylight saving on the East coast of Australia.
It is also the case that Mr Johnson gave evidence that the texts were sent 24 hours after the times that appear on their face. Even so, I recount the text messages here, because no doubt was cast on what they themselves said about their timing.
At around 11:37 PM on Thursday 16 May 2019, Mr Johnson sent the following text message to Mr Butler (all extracts verbatim): Oi lad! Jack Hampton = 10.000 Can we sort it out he bashed my 5yearold daughter
Mr Butler responded at 4:04 AM on Friday 17 May 2019: Oi wat happen
Mr Johnson responded around 2 minutes later, at 4:06 AM: The cock sucker was hitting kayleen and the kids tried to stop him and he punched my 5Year old daughter.
The Crown case was that Mr Johnson was offering to pay Mr Butler a significant sum of money if Mr Butler were to inflict (at least) significant harm upon Mr Hampton. Furthermore, Mr Butler would have come to appreciate that Mr Johnson apparently had access to a significant sum of money.
On that same day, Friday 17 May 2019, Mr Johnson told Mr Jordyn Clulow that they needed to go to the bank to withdraw money for someone. Mr Butler and another man picked up the two men in a silver Toyota Corolla. (Mr Johnson asserted that the other man was the applicant, but I understood that to be disputed, at the least implicitly, and Mr Jordyn Clulow said nothing about the identity of that second man.) They drove to Wollongong Mall, where Mr Jordyn Clulow withdrew $200 from the NAB account. Mr Johnson told Mr Jordyn Clulow to give the money to Mr Butler.
After returning home, Mr Johnson received a call from Mr Butler, who told him to transfer $251 into an account owned by a Ms Maggie Day. Mr Butler provided the account details, and it was Mr Jordyn Clulow who made the transfer.
It was the Crown case that, by this stage, Mr Butler would have known that Mr Johnson did indeed have access to a large sum of money.
On the evening of Friday 17 May 2019, a birthday party was held for the deceased at the apartment of his mother, Ms Levenia Clulow in North Wollongong. She was also the mother of Mr Jordyn Clulow. The deceased arrived at 6 PM with his sister, Ms Kayleen Merrett. Other persons were also present, including: Ms Jakaya Clulow (a cousin of the deceased) and her sister Krystal; Mr Johnson; and the three children of Ms Merrett, whom I shall not name in accordance with statute.
Numerous attendees consumed alcohol that night. The deceased's blood alcohol content at the time of his death some hours after the party was found to be 0.125g/100ml of blood; in other words, "mid-range PCA". Mr Johnson described himself as "tipsy" but denied being substantially intoxicated. Ms Kayleen Merrett stated she consumed no alcohol that night and spent most of the party lying down with her children. However, she was subsequently found to have a small amount of methylamphetamine in her body.
According to Mr Johnson, he heard from the eldest son of Ms Merrett that her current partner, Mr Hampton, had been "physical" with Ms Merrett and the children. On his evidence given at trial, this was when Mr Johnson sent a message to Mr Butler about Mr Hampton (as I have shown, this was not in accordance with the document setting out the text messages tendered in evidence; and in any event, on the chronology proffered by Mr Johnson, the response of Mr Butler was after the collision, which must be incorrect).
At 8:30 or 9 PM, Mr Johnson and Ms Merrett left the party and drove to the Dandaloo Pub. There, Mr Johnson met up with Mr Butler, Ms Holly Green and her brother Mr Brad Green. (Again, Mr Johnson asserted that the applicant was also there, but I understood this to be disputed, at the least implicitly, as well.) Ms Merrett stayed in the car. Mr Johnson spoke with Mr Butler (and, allegedly, the applicant) and told them to "go and bash Jack [Hampton]". He gave them an address, and Mr Butler (and the applicant, allegedly) left the pub. Five to ten minutes after they first arrived at the hotel, Mr Johnson and Ms Merrett drove back to the party.
Sometime after midnight, Mr Johnson, Ms Merrett, her two-year-old son, the deceased, and Ms Jakaya Clulow left the party in the black Ford Territory of Ms Merrett. She drove her vehicle to the Cringila Metro service station to refuel. They arrived at around 1:49 AM on Saturday, 18 May 2019.
Approximately half an hour earlier, the applicant, Mr Butler and Ms Holly Green had arrived at the same service station, where they had parked the silver Toyota Corolla. They were inside the Cringila Hotel, which was next door, when the Ford Territory arrived, but crossed back over to the service station almost immediately.
Mr Butler and the applicant approached Mr Johnson as he was refuelling the Territory. Their interactions were captured by silent CCTV footage from multiple cameras, and therefore in a sense what it shows objectively is not open to dispute. Because the inferences that can and cannot be drawn from it, however, are sharply disputed, I shall discuss the CCTV footage in more detail later in this judgment.
Separately, on his estimate about 35 or 40 minutes after the Ford Territory left the party, Mr Jordyn Clulow received a telephone call from Mr Johnson. Mr Johnson asked for the password to the account of Mr Jordyn Clulow; the latter gave it to the former; but Mr Johnson kept insisting that the password was wrong. According to Mr Jordyn Clulow, he could hear the voice of Mr Butler in the background. That call concluded. Mr Jordyn Clulow was worried, and telephoned the deceased. He eventually answered, said to Mr Jordyn Clulow "we are in trouble", said he would call back, and hung up. (AB 595 ff). This evidence of Mr Jordyn Clulow was not the subject of cross-examination on behalf of the applicant, nor was it put to him that it was incorrect on any basis.
Returning to the two vehicles, at 2:08 AM, the Ford Territory left the service station, it having been there for 19 minutes. It was followed by the Toyota Corolla via the same exit driveway.
At that stage, the positions of persons in the two vehicles were as follows. In the Ford Territory, Ms Merrett was driving, Mr Johnson was in the front passenger seat, the deceased was in the rear passenger side seat, and Ms Jakaya Clulow was in the rear driver's side seat.
In the silver Corolla, Mr Butler was driving, Ms Green was in the front passenger seat, and the applicant was in the rear passenger seat.
Ms Merrett drove the Territory to 10 Cullie Way, Warrawong, where the deceased lived with his partner, Ms Katerina Coghlan. The Ford came to a halt, as did the Corolla nearby. The deceased removed the young son of Ms Merrett (his nephew), from the Ford Territory, and handed him to Ms Coghlan. He instructed her not to open the door for anyone, and to lock all of the windows in the house. The Territory then proceeded some distance to Northcliffe Drive, and was again followed by the Corolla.
At about 2:18 AM both vehicles stopped for a time at the fish co-op on Northcliffe Drive in Berkeley. The Corolla pulled up alongside the Territory. Both Ms Jakaya Clulow and Ms Merrett gave evidence that Mr Butler exited the Corolla, approached the front passenger door of the Territory, and repeatedly struck the window with some sort of implement. Mr Johnson gave evidence that, in fact, the approach by Mr Butler to the Ford Territory had occurred at the first stop, not the second; in the appeal, the Crown submission was that he had mixed up the two occasions.
The Territory then drove off at speed. The Corolla followed. Both vehicles proceeded to the Princes Highway, and a high-speed pursuit commenced, evidenced from many sources. Two 000 calls were made during the chase; the first by the deceased, and the second by the 000 operator in return after the first call was terminated. Again, their contents were not disputed as objective facts, but the inferences to be drawn from them were sharply disputed on the appeal. For that reason, they will be discussed in more detail below.
At 2:24 AM on 18 May 2019, the Territory collided with the side of a petrol tanker at the intersection of the Princes Highway and Creole Street. The driver of the petrol tanker, Mr Gary James, gave evidence that he saw the two vehicles approaching, but believed that they were 350-400m away. He turned onto the Princes Highway, judging it was safe to do so, unaware of the very high speed at which the vehicles were travelling. However, according to in-car digital records, the Territory was in fact travelling at approximately 164 km/h, far beyond the 70 km/h speed limit. The deceased was ejected from the Ford Territory and died instantly. Ms Kayleen Merrett and Ms Jakaya Clulow suffered severe injuries, but survived. Mr Johnson, on the other hand, suffered only relatively minor injuries.
As for the Corolla, according to the same kind of records, at 2:24 AM it was travelling at a speed of 160 km/h. As it passed the scene of the collision, it slowed to 50 km/h. Thereafter it accelerated to 110 km/h, and sped away.
A witness gave evidence about what became of the Corolla after the collision, and what Mr Butler and the applicant had allegedly done in regard to it. Because that evidence was patently extremely unreliable for a number of reasons, however, I shall not pause to summarise it, and place no weight on it in my analysis of evidence.
The applicant was arrested on 21 May 2019. He exercised his right to silence with police, and at trial. So did Mr Butler, though he did call a witness (whose evidence was admissible for or against both accused) about the effects of methylamphetamine upon a human being. That was seemingly in an effort to suggest that the fatal collision may in truth have been caused by the drug-impaired driving of Ms Kayleen Merrett, and not substantially contributed to by any driving on the part of Mr Butler.

Matters disputed at trial, and defence case generally

I turn now to discuss the defence response to the Crown case, focusing of course on that of the applicant as opposed to Mr Butler.
The following is derived from matters put in cross-examination by senior counsel at trial in accordance with the rule in Browne v Dunn (1893) 6 R 67 to the three witnesses identified by counsel for the applicant as of crucial importance - Mr Johnson, Ms Merrett, and Ms Jakaya Clulow, combined with a review the opening and closing addresses for the applicant at trial.
In a nutshell, the defence case was that the applicant was present at the service station, and was a passenger in the Corolla at the time of the collision. But it was firmly resisted that he was a party to any intimidatory driving by Mr Butler; that he had discharged the firearm at any stage from the Corolla; and that he had been a party to any intimidation of Mr Johnson at the service station.
In support of those propositions, the defence case featured a trenchant attack on the credibility of a number of Crown witnesses, most particularly Mr Johnson. His disputed evidence that, at the service station, he had been threatened by both Mr Butler and the applicant, and had been in the process there of trying (ultimately unsuccessfully) to transfer money by way of his mobile phone at their insistence, was firmly resisted. The point was made that there were many inconsistencies in his inculpation of the applicant in that regard, and that in his original evidence about interactions at the service station he had not implicated the applicant at all. It was only after the Crown prosecutor was permitted to provide him with his statements made to the police many months beforehand, that he proceeded to implicate Mr Butler, and even then not the applicant (AB 712 ff). It was only at a further stage that he gave evidence that the applicant had been part of the intimidation at the service station.
The ultimate position for the accused was put by senior counsel to Mr Johnson in cross-examination: "[Y]ou weren't threatened by anyone at the servo", a proposition that was rejected by the witness (AB 834.31). Later, it was put to Mr Johnson that he had recognised the applicant at the service station, a proposition with which he agreed. But he denied that the previous occasion on which the witness "had anything to do with him" was when the applicant had given the witness "a bit of a hiding".
As for Ms Kayleen Merrett, she agreed with senior counsel in cross-examination that, although she had seen the applicant "standing with Darren Butler", and that although "he was there at the servo", she had never seen or heard him "speak a word", and had never seen him "with a weapon of any kind" (AB 952.35 ff).
She also confirmed in cross-examination that Mr Johnson "had some mental issues", "says some extraordinary things", "just completely just made this up" regarding having fathered one of her children, and that she would "question almost anything that Johnson told you".
As for Ms Jakaya Clulow, she agreed in cross-examination by senior counsel that, as for the applicant, she "had never met this man" in her life; that she had "never heard him say one word" in her life; and that, "on the night, you never heard him say a word to anyone".
Separately, as I have said, the defence case focused, successfully, on the question of whether the jury could be satisfied to the criminal standard that the applicant had indeed discharged a firearm that evening, bearing in mind the absence of scientific or other evidence supporting the contentions of the surviving occupants of the Ford Territory that they had been under fire, and their own uncertainties as to what they had actually heard. Because the acquittal is to be given full weight, the details of that successful attack need not be further discussed.

Written Submissions

As is orthodox in support of such a ground, the written submissions for the applicant provided a detailed analysis of the aspects of the evidence relied upon, seeking to demonstrate that the evidence in the trial against the applicant was not capable of proving beyond reasonable doubt that he had entered into a joint criminal enterprise with Mr Butler to drive the Toyota Corolla in such a way as to intimidate the occupants of the Ford Territory. I recount them in some detail.
Once the applicant's alleged discharge of the firearm was eliminated in accordance with the acquittal, it was argued, the Crown case was reduced to mere inferences drawn from CCTV footage at the service station, and the evidence given by Mr Johnson, Ms Merrett, and Ms Jakaya Clulow about what had occurred there.

CCTV from service station

It was submitted that the CCTV footage required "close viewing". Counsel for the applicant argued that the footage shows no aggressive behaviour on the part of either Mr Butler or the applicant; on the contrary, the footage more strongly indicates, it was submitted, that there was a plan shared between Mr Butler and an occupant of the Ford Territory for that vehicle to follow the Corolla to some other location. It was argued that the end of the footage shows Mr Butler walking back to the Toyota Corolla. Before he enters the vehicle, he turns around, appears to communicate with an occupant of the Ford Territory, and then makes a "directional gesture" with his right hand. The two vehicles then drive out of the service station. Written submissions for the applicant described the vehicles as moving "calmly".
Subsequent footage, it was submitted, merely shows one vehicle following the other. There were no abnormal driving events at this early time. It was not until the vehicles stopped on Northcliffe Drive at the second stop that events escalated.
Counsel for the applicant submitted that the only direct evidence of intimidation by the applicant at Cringila Service Station was given by Mr Johnson, who stated the applicant had threatened him by saying, "We want the money or I'm fucking going to stab you".

Oral evidence at trial

Written submissions for the applicant on appeal, as indicated above, followed the approach of senior counsel at trial in heavily disputing the credibility of the three witnesses who had occupied the Ford Territory.
It was submitted that Mr Johnson was not a witness of truth, he severely lacked credibility, and he had a demonstrated history of lying to police. Amongst other matters, counsel for the applicant identified the following significant problems in Mr Johnson's evidence: 1. He claimed to have had a child with Ms Merrett, but gave conflicting accounts as to which, if any, of her children was biologically his. 2. He told police that Mr Hampton had hit Ms Merrett's son, but initially stated in his text message to Mr Butler that the victim was his own 5-year old daughter. 3. He accepted that his statement to police that the Corolla had "shot at" his vehicle and attempted to "ram" them off the road was not true. 4. He gave evidence that he had tried to exit the Corolla on Cullie Way but was unable to do so as Ms Merrett had locked the doors. However, Mr Johnson had told police he had been the one to lock the car doors. 5. He claimed the deceased stated he had been shown a firearm at Cringila Service Station through the window of the Corolla, though this could not be seen on the CCTV footage. 6. Initially, Mr Johnson only gave evidence that Mr Butler spoke to him while he was filling up the car at Cringila Service Station, and that he could not remember what was said. However, after being taken to his record of interview with police, his version of events changed, as follows. He was approached by both Mr Butler and the applicant, the latter of whom said "we want the fucking money or I'm going to stab you". This amended account is also somewhat different from what he stated in his first interview with police: "We were approached by two males saying I had fucked them around and that I owed the 2,000 for an unknown reason and that they wanted the money, or I was going to get hurt".
Regarding Ms Merrett and Ms Jakaya Clulow, counsel for the applicant also submitted the two witnesses were lacking in credibility, and attacked the perceived inconsistencies in their evidence, as follows.
Ms Merrett did not accept that she had used methamphetamine in the 24-hours before the collision had taken place, despite test results showing the substance in her blood at that time. She maintained that she had taken the drug two weeks beforehand.
Ms Merrett also claimed to have "vaguely heard" Mr Butler at the service station saying something about wanting $2,000, though this fact had not been included in any of her previous statements to police.
Ms Jakaya Clulow, on the other hand, stated during cross-examination that her memory of 18 May 2019 had gotten better as time went on because she had started "dreaming" about it: Q. Did the morphine make you dream? A. No, I don't think it was the morphine. Q. Sorry? A. No, I don't think it was the morphine. I think it was my brain just replaying things over and over. Q. And each time it played it over, did you get more information? A. Yeah. Q. Yes, is it? A. Yeah. Q. Is what you tell us happened on the night a recreation because of those dreams, rather than what you actually remember? A. No, because I remembered it, and then I just kept dreaming about it.
Ms Clulow also gave evidence at trial of a conversation between Mr Butler and Mr Johnson at the Cringila Service Station, during which Mr Butler had put his head inside the driver's side window of the Ford Territory and said, "Is it going to be like that, I can easily follow youse". During cross-examination, the wording changed to Mr Butler saying, "I can easily chase the car". Furthermore, it was submitted that Ms Clulow had not previously mentioned this conversation in any of her previous statements to police.

Oral submissions

The oral submissions for the applicant emphasised that an important part of the Crown case for a joint criminal enterprise during the driving - the alleged firing of a gun by the applicant - had failed, and must be put to one side by this Court.
As for the interactions at the service station, it was said that the quality of the oral evidence about the conduct of the applicant there needed to be considered carefully. And in any event, there was no "logical necessity" that any agreement by the applicant to intimidate Mr Johnson at that location proved that the applicant had agreed in the subsequent driving by Mr Butler.
It was said that the latter portion of the CCTV footage was very important, in that by that stage the applicant was actually some distance away at the Corolla, and it was then that Mr Butler, having left the Ford Territory and on entering the Corolla, made a "directional gesture with his hand". I understood the submission to be that one thesis is that Mr Butler was in fact directing the occupants of the Ford Territory to a further meeting place.
Separately, it was said that the Corolla was being driven unremarkably when it left the service station, following the Ford Territory. Nor, it was said, was there any evidence of dangerous driving up until the stage of events after the second stop of the two vehicles in the vicinity of the fish co-op.
It was said that the evidence was that Mr Butler alone who had done any intimidating things at either of the stops, except for the evidence of Mr Johnson, who was unsupported in that regard.
It was made clear that the focus of the appeal was upon the evidence of Mr Johnson, Ms Merrett, and Ms Jakaya Clulow.
As for Mr Johnson, it was said that he had been shown to have told a "litany of lies", including about his relationship with Ms Merrett, and lies to police on other occasions. It was said that Mr Johnson may even be a person who is unaware that he is saying things that are quite untrue. Counsel noted that there had been "some suggestion of some mental illness". The point was also made that on crucial matters, Mr Johnson was uncorroborated. It was accepted that such matters were "for the jury in an ordinary case" to resolve, but this case was said to be "quite different".
It was submitted that the evidence said to show that the applicant was aware that Mr Johnson had access to a considerable sum of money based on previous interactions was lacking; the real position was that the applicant knew only of "about $200".
Relatedly, the evidence from Mr Johnson as to who precisely was present at the Dandaloo Hotel was of poor quality, due to its inconsistency.
It was also said that the Crown should not be permitted to assert on appeal that any item that the applicant may have possessed on the evening was an item used by Mr Butler to tap on the window of the Ford Territory at the second stopping point, that submission not having been put by the Crown at the trial.
It was also submitted that, the applicant having been acquitted of discharging a firearm, it would not be giving full weight to the acquittal to suggest that he was responsible even so for any sounds that could have been mistaken for gunfire emanating from the Corolla.
It was submitted that trying to interpret the CCTV in such a way as to demonstrate that the applicant subsequently agreed in the manner of driving of Mr Butler "would leave much in the way of speculation".
It was confirmed that the depth and breadth of the sincerity of the belief of the occupants of the Ford Territory that they were being shot at was being called into question.
It was said that the behaviour of the applicant after the collision should be regarded as simply "neutral", in the sense of neither tending towards nor away from proof of guilt.
In reply, it was confirmed that causation was not an issue in the appeal, in that "the fact that Mr Butler was chasing after a speeding vehicle was clearly a significant cause of death".
The proposition of the Crown that there was a "seamless course of conduct" that commenced at the service station was resisted. To the contrary, the proposition was that things "dramatically escalated" after the second stop, at which point Mr Butler engaged in "a different type of conduct".
As for the failure of the applicant to alight from the Corolla at any stage before the collision, including at either of the two stops, it was said that that would only be relevant if the applicant possessed "foresight" as to what was to occur.

Legal principles

I turn now to sketch the legal framework in which I have analysed the evidence.
The legal principles to be applied in resolving this ground of appeal arising from a verdict of a jury were not the subject of controversy between the parties. They have been discussed many times by this Court, most recently in the decision of Hanna v R [2023] NSWCCA 182 at [18] to [26] of the judgment of Leeming JA, with which Yehia and Weinstein JJ agreed. I respectfully adopt that very recent analysis, and provide the following summary of the principles that I have applied in accordance with it, not as any sort of gloss on what his Honour has said, but merely for the convenience of the reader.
First, the verdict of a jury has "a special authority and legitimacy" within our system of criminal justice: MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [48], Hanna v R at [18].
Secondly, this Court must "determine for itself whether the evidence was sufficient in nature and quality to eliminate any reasonable doubt that the accused is guilty of that offence": Dansie v The Queen [2022] HCA 25; 96 ALJR 728 at [7], Hanna v R at [19].
Thirdly, even if the appellate court experiences a doubt, that is not the end of the matter, because if it were no deference would be paid to "the role of the jury and the advantages it enjoyed in seeing the trial unfold": Hanna v R at [20]. Having said that, "it is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred": M v The Queen (1994) 181 CLR 487; [1994] HCA 63 at 494, Hanna v R at [20].
The position remains that "the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty": M v The Queen at 495, Hanna v R at [21].
Furthermore, the advantage enjoyed by the tribunal of fact at trial will vary depending upon the form of the evidence adduced, and the nature of the issues at trial: Dansie v The Queen at [17], Hanna v R at [23].
To express my own understanding of that, by providing two extremes: at one end of the spectrum, a verdict founded upon a trial that consists entirely of undisputed circumstantial facts, about which little or no oral evidence was given, may be more liable to interference on this ground by a court of criminal appeal than, at the other extreme, a verdict founded upon a trial that called for the assessment of the credibility of very many witnesses about sharply disputed facts, including the accused. That is because, in the former case, the tribunal of fact has little advantage over the appellate court in having the trial unfold in the courtroom.
Separately, it is not to be forgotten that what needs to be established by way of this ground to the satisfaction of an appellate court is "that a miscarriage of justice has occurred authorising and requiring its intervention": MFA v The Queen at [96], Hanna v R at [24].
Finally, the appeal proceeds upon the assumption that the central Crown evidence "was assessed by the jury to be credible and reliable". Still and all, this Court "examines the record" to see whether, nevertheless, it is "satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt": Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 at [39], Hanna v R at [25].

Determination

In my opinion, it was open to the jury to be satisfied of the guilt of the applicant of the offence of manslaughter by way of complicity. I say that for the following reasons.
First, and most fundamentally, the credibility of Mr Johnson, and to a lesser extent Ms Merrett and Ms Jakaya Clulow, was quintessentially a matter for the jury. This was the kind of case in which that tribunal of fact had a marked advantage over members of this Court, seeking to reconstruct the atmosphere of a trial that featured trenchant attacks on credit by reading voluminous pages of transcript in Chambers. It is certainly true that the prosecution witnesses could be and were subject to staunch criticism on many bases by senior counsel for the applicant at the trial. And there can be no doubt that, in the case of Mr Johnson, for many reasons one would inevitably approach his evidence with great care. But in my opinion, none of the matters to which counsel for the applicant invited this Court constitute (whether alone or in combination) powerfully probative evidence that leads one to conclude that the evidence of any one of those witnesses must necessarily have been rejected by the tribunal of fact.
In particular, what role if any the applicant played in the interactions at the Dandaloo Hotel, and - more crucially - what role he played in the interactions at the Cringila Service Station, was soundly within the remit of the jury.
It is certainly true that criticisms can be made of the evidence of all three of the central witnesses, on the basis of fanciful if not odd ideas on the part of Mr Johnson; his dishonesty towards police in the past; his psychiatric and psychological difficulties; intoxication by or dependence upon substances including alcohol and prohibited drugs on the part of more than one witness; and inconsistencies and prevarications in their evidence, again on the part of more than one witness.
But assessment of all of those factors, most particularly with regard to Mr Johnson, was a task well within the capacity of twelve members of the community. And I do not believe that any aspect of his evidence relied upon by counsel for the applicant constitutes a factor that objectively "overrides" the advantage in its assessment that the jury enjoyed. Indeed, I think that there was objective corroboration for the proposition that the applicant was part of intimidation of Mr Johnson within 30 minutes prior to the collision, which I describe shortly.
Secondly, as for events at the service station, in my opinion they had the potential to inform powerfully the question of the state of mind of the applicant in the minutes thereafter, as the Corolla followed the Ford Territory. And it is to be recalled that the evidence of Mr Johnson was that he was approached by both men, and it was the applicant who spoke of Mr Johnson being harmed if he did not hand over money.
In other words, the Crown proposition was that, just as the applicant was acting in concert with Mr Butler at the service station, so was the applicant acting with Mr Butler very shortly thereafter, when the latter was driving the Corolla in an intimidating way.
Contrary to what was put by senior counsel for the applicant at trial to Mr Johnson to the effect that he was not intimidated by anybody at the service station, extracted by me at [47] above, I believe that the evidence of Mr Jordyn Clulow of the phone call from Mr Johnson that evening, repeatedly asking for the password to the account, significantly corroborates the evidence of Mr Johnson that he was being intimidated at the service station, at the least by Mr Butler.
Relatedly, as part of my analysis of the evidence in the trial, I have watched the CCTV product carefully in Chambers several times. (It was explained at the hearing of the appeal that the person in the black beanie is Mr Butler, the person in the black baseball cap is the applicant, the person with long red hair is Ms Green, the person in red pants is Mr Johnson, the person wearing a jumper emblazoned with "53" is the deceased, and (by way of confirmation) that the driver of the Ford Territory is Ms Kayleen Merrett.) Although based on four cameras, in colour, and of good quality, it is, as I have said, completely silent. That means that one cannot go beyond movements and body language in one's assessment of what was occurring, and of course it provides no insight as to what was being said by anyone, and how it was being said. Even so, in my opinion the following can be discerned from the CCTV product.
There was an interaction generally between the occupants of the Ford Territory and the occupants of the Corolla that extended for 20 minutes. Unusually, that interaction was on the forecourt of a service station in the early hours of a Sunday morning.
It was occupants of the Corolla who approached the occupants of the Ford Territory, not the other way round.
The persons most significantly involved in the interaction were Mr Johnson and Mr Butler.
Ms Jakaya Clulow did not alight at all from the Ford Territory. Ms Merrett was inside that vehicle for most, but not all, of the interaction.
In the second half of the recorded period, the applicant spent quite some time away from Mr Johnson, having moved to where the Corolla was parked some distance away, albeit still in the service station parking area.
Having said that, there were quite some minutes in which the applicant was together with Mr Johnson and Mr Butler.
All three men spent quite some time on their mobile phones, either speaking or texting or scrolling.
When Mr Butler first approached Mr Johnson at the Ford, Mr Butler was closely accompanied by the applicant. The positioning of the applicant thereafter suggests that he was playing the role of "supporter" of Mr Butler (for example, from timestamp 1:50 and following).
There was at least one occasion on which the applicant gestured with some emphasis at Mr Johnson (timestamp 1:51).
There were at least two occasions when Mr Johnson was on his phone, and both Mr Butler and the applicant looked at it, albeit the latter was a little behind the former (timestamp 1:55 and 1:58). At 1:58:15, the applicant looked at the phone of Mr Johnson without Mr Butler doing so at that time.
The departure of the Ford Territory was delayed by the ongoing interaction, by that stage between Mr Johnson, Mr Butler, and the deceased.
There was an occasion when Mr Butler was at the driver's door of the Ford Territory and gestured into it (timestamp unavailable at this stage of the CCTV; counter 47:35).
It is true that, as he approached the Corolla, Mr Butler gestured back in the direction of the occupants of the Ford Territory. Contrary to the submission for the applicant, however, I am unable to ascribe any particular meaning to that gesture.
After the Ford Territory left, the Corolla backed out of its parking spot a little quickly, and followed the former reasonably closely out of the service station (counter 47:43).
In my opinion, the CCTV product does not undermine the verdict of guilty to any substantial degree. It is true that it shows no actual violence inflicted upon Mr Johnson, but that was never part of the Crown case. It is also true that it does not directly support the making of threats, but that is hardly surprising either, because it is silent. What it does show, I think, is an extended interaction at an unusual time and place, in which the applicant was involved to a substantial degree.
Furthermore, as counsel for the Crown submitted in this Court, in my opinion the CCTV supports the version of Mr Johnson in the following way. His evidence was that he was being forced to transfer money by way of his mobile phone, but he was unable to do so, to the frustration of those who were intimidating him. That, of course, was supported by the evidence of Mr Jordyn Clulow, and it is noteworthy that one can see occasions on which both Mr Butler and the applicant were taking care to look at the mobile phone held by Mr Johnson.
In my opinion, the CCTV evidence does not play a significant role in casting doubt on the verdict of guilty. Indeed, if anything, as explained above, it bolsters it to some degree.
Thirdly, I firmly reject the proposition of counsel for the applicant that, on the basis of the 000 recordings, one would assess the states of mind of the occupants of the Ford Territory in the moments before the collision as dissembling. On the contrary: listening to both calls amply satisfies me that the occupants of that vehicle were in great terror. In particular, I do not accept that the hysterical screaming that one can hear is in any way feigned. I also believe that at counter 00:22 of Exhibit G2 (behind the spoken phrase "Northcliffe Drive" on the second occasion), one can hear some sort of sound (it is not to be thought of as the discharge of a firearm, of course) in the background, after which the occupants become extremely frightened.
Furthermore, it is to be recalled that the ultimate outcome of the driving of Ms Merrett was that it collided with a semitrailer, resulting in the death of her brother and serious injury to herself and another person. That in itself provides powerful support for the sincerity of the fear of the occupants of the Ford Territory.
My own assessment, consistent with the verdict of acquittal on count 5, is that, to the extent that it was said by any person that the Ford Territory was being shot at, whilst that was certainly incorrect (in accordance with that verdict), that was an honestly held but mistaken belief. I confidently reject any suggestion that that belief was not sincerely held and was some sort of fabrication, let alone a joint fabrication. And to the extent that counsel for the applicant relied upon the 000 calls as supporting the ground of appeal in some way, I reject that submission.
Fourthly, it is important to bear in mind the temporal connection between the important events. Working backwards, the collision occurred at 2:24 AM on 18 May 2019. The second 000 call commenced moments before. The first 000 call commenced, one can readily infer, very shortly before the second. The second stop near the fish co-op occurred at 2:18 AM. The first stop to drop off the child occurred shortly after 2:11 AM. The two motor vehicles departed the service station at 2:08 AM. The Ford Territory had arrived there at 1:49 AM. The interaction at the Dandaloo hotel had occurred in the afternoon of 17 May 2019. Mr Butler had responded to the text from Mr Johnson about Mr Hampton very early on the same morning.
In other words, this was not a case of complicity in the fatal driving alleged by the Crown to have occurred weeks, days, or even hours after the asserted involvement by the applicant in trying to force Mr Johnson to hand over money at the service station. The time between the departure from the service station and the fatal collision was no more than 15 minutes. That temporal connection, I consider, makes the evidence of the conduct of the applicant at the service station that much more powerful, in terms of proving his state of mind during the fatal pursuit of a vehicle in which the target of the intimidation at the service station was travelling.
Fifthly, the 000 calls comfortably demonstrate that Mr Butler was driving at very high speed and extremely dangerously for quite some time before the fatal collision occurred, albeit after the second stop. Furthermore, the undisputed evidence is that, when the Ford Territory stopped on the first occasion, a child was taken from it, and the deceased's partner was warned by him to lock the doors and windows of their home. The inference can readily be drawn that the occupants of the Ford were already frightened about what was happening, based upon either what had occurred at the service station, or the manner of driving of the Corolla between the service station and the first stop, or both; and because of their fear wanted to remove the child from the situation. After that, both vehicles came to a brief stop again near the fish co-op, at which point the Crown case was, as I have said that Mr Butler approached the Ford Territory.
The thesis for the applicant is acceptance that Mr Butler was driving extremely dangerously, but the applicant played no part in that, including by agreeing in what was occurring. And yet it is important, I think, that the applicant therefore had two chances to leave the vehicle before the collision occurred; but he did not. And to repeat: in my opinion there is a strong, corroborated case that, at the least, Mr Butler was intimidating Mr Johnson at the service station. Contrary to the submission for the applicant, if his state of mind was disengagement from the conduct of Mr Butler, he had two opportunities to disassociate himself from it; he failed to do so.
Sixthly, it is to be remembered that, regarding manslaughter based on unlawful and dangerous act, the Crown did not have to prove against the applicant an intention to kill or inflict grievous bodily harm, foresight of those outcomes, or even foresight on the part of the applicant of an intention on the part of Mr Butler to achieve those outcomes. Because of the objective elements of the offence, the Crown merely needed to prove agreement on the part of the applicant in the offence of intimidation by way of driving by Mr Butler. That was not a particularly stringent mental element about which the jury needed to be satisfied to the criminal standard.
Seventhly, it is true that, as a matter of theory, the acquittal on count 5 conclusively demonstrates merely that the applicant did not discharge a firearm in a public place, those being the elements of the offence of which he was acquitted. But, as can be seen from the above analysis, I have not only accepted the Crown concession on the appeal that it should be resolved on the basis that the applicant did not possess a firearm that evening (as opposed to discharging it). For abundant caution, I go further, and resolve the appeal on the assumption that the applicant did not possess any item that evening that could even have been mistaken for a firearm, either by way of its appearance or by any sound it might produce.
But as I have shown, even proceeding on that basis, I consider for a number of reasons that the verdict of guilty on count 1 was open against the applicant in this trial.
In short, on my own assessment of the evidence, reflecting carefully upon all of the adverse aspects of the evidence of Mr Johnson, and giving due weight to the limitations within which I examine the evidence, I do not experience a reasonable doubt about the guilt of the applicant of manslaughter. The contents of the CCTV from the service station play an important role in that state of mind of mine.
And if I be wrong in coming to that view, and I should experience such a doubt on the transcript and the exhibits, then I would readily defer to the much greater ability possessed by the jury to make assessments of credibility in a case such as this than the ability possessed by me.

Proposed orders

For those reasons, I propose the following orders: 1. Leave to appeal against conviction granted. 2. Appeal dismissed.
WILSON J: Having considered the evidence that was before the jury, I have concluded that the verdict returned with respect to count 1 was open, for the reasons given by Button J. I agree with the orders proposed by his Honour.
SWEENEY J: I have had the benefit of reading the judgment of Button J and considering his Honour's analysis of the evidence in the trial and of the issues raised by the applicant about the evidence. I have also conducted my own assessment of the evidence. I agree with Button J, for the reason his Honour articulated, with which I agree, that it was open to the jury to be satisfied beyond reasonable doubt of the applicant's guilt of Count 1. I agree with his Honour's proposed orders.

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: 18 August 2023

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