Citation: R v Simon George Lees; R v Stuart Lewry [2019] NSWDC 117
Court: District Court of New South Wales
Date: 28 March 2019
Judge: Haesler SC DCJ
Background
A passenger coach descended a mountain road near Kangaroo Valley in May 2010 and left the carriageway, killing its driver and seriously injuring a passenger. The two accused faced charges of manslaughter and grievous bodily harm by negligent act. The first accused was the manager of the bus company, allegedly responsible for the coach's maintenance and aware that it had defective brakes and a non-functional transmission retarder. The second accused was a Heavy Vehicle Inspector who had been engaged to clear defects identified during a pre-registration inspection shortly before the crash.
It was alleged that the bus company manager knew the coach was unsafe to drive but permitted it to remain in service. The inspector was alleged to have cleared the vehicle for re-registration without actually inspecting it, meaning its dangerous brake condition went undetected. Both accused pleaded not guilty and elected for trial by judge alone.
After 17 days of hearing, the Crown closed its case. Both accused immediately applied for directed verdicts of not guilty, arguing that a critical element of each charge, namely the existence of a duty of care owed to the deceased and the injured passenger, could not be established as a matter of law.
Legal Issues
- Whether, on a no-case application in a judge-alone trial, the court may weigh the quality of the evidence or must simply ask whether a conviction is legally possible on the evidence at its highest
- Whether the Crown had identified, with sufficient particularity, a legal duty of care owed by each accused to the deceased driver and the injured passenger
- Whether the evidence, taken at its highest, was capable of supporting the existence of such a duty of care against each accused, such that the case should proceed
Decision
His Honour addressed the correct legal test for a directed verdict application at the close of the Crown case. The enquiry is not whether an accused ought to be convicted on the evidence as it stands, but whether he could lawfully be convicted. A trial judge cannot at this stage review the weight or quality of the evidence, including circumstantial evidence, or make positive factual determinations. His Honour also confirmed that the procedure formerly known as a "Prasad" direction (which allowed a judge to stop a trial early) is no longer available following the High Court's decision in DPP Reference No 1 of 2017.
His Honour then examined the legal framework for criminal negligence. A duty of care is a necessary legal precondition to any conviction for criminal negligence manslaughter or grievous bodily harm by negligent act. Before questions of breach, causation, or the degree of negligence can arise, the prosecution must identify what the duty was, and prove it existed.
The Crown particularised its case for each accused. Against the bus company manager, the alleged duty rested on his assumption of responsibility for maintenance and safety of the fleet, his actual knowledge of the defective brakes and faulty retarder, his control over repair decisions and vehicle deployment, and his causative role in the sequence of events leading to the crash. Against the inspector, the alleged duty arose from his role in clearing the vehicle and issuing a compliance notice that allowed it to return to service.
His Honour found, as a matter of law, that the duties particularised by the Crown could, if proved beyond reasonable doubt, amount to duties of care owed to the deceased and the injured passenger. Whether the evidence was sufficient to actually establish those duties was a matter reserved for the final verdict. On that basis, both applications for directed verdicts of not guilty were refused.
Orders Made
No formal orders were recorded. The applications for directed verdicts of not guilty were refused, and the trial was to continue.
Key Takeaways
- A directed verdict application requires the court to ask only whether the accused could lawfully be convicted on the evidence at its highest, not whether the accused ought to be convicted. The quality or weight of the evidence is not reviewed at this stage.
- The "Prasad" direction procedure, formerly available to halt a criminal trial early, is no longer available in either jury or judge-alone trials following the High Court's 2019 ruling in DPP Reference No 1 of 2017.
- A conviction for criminal negligence manslaughter requires proof of a duty of care as a threshold legal precondition. Without it, no further questions of breach, causation, or degree of negligence can arise.
- The District Court confirmed that a duty of care in criminal negligence cases can arise from an assumption of responsibility, actual knowledge of a dangerous condition, and a causative role in the sequence of events that produced the risk, drawing on the framework set out in Moore and Burns.
- Identifying the precise content of the duty is a separate and distinct exercise from identifying a breach of that duty. Courts must not conflate the two, consistent with the High Court's caution in Burns v The Queen.
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1986 (NSW), s 133
Cases
- Burns v The Queen [2012] HCA 35; (2012) 217 A Crim R 501
- Director of Public Prosecutions Reference Number 1 of 2017 [2019] HCA 9
- Fleming v The Queen (1998) 197 CLR 250
- Justins v R [2010] NSWCCA 242; (2010) 79 NSWLR 544
- Kelly v The King [1923] HCA 46; (1923) 32 CLR 509
- May v O'Sullivan (1955) 92 CLR 654
- Moore v R [2015] NSWCCA 316; (2015) 91 NSWLR 276
- R v R (1989) 44 A Crim R 404
- R v Taktak (1988) 14 NSWLR 226