Citation: R v Simon Lees (No 2); R v Stuart Lewry (No 2) [2019] NSWDC 118
Court: District Court of New South Wales
Date: 11 April 2019
Judge: Haesler SC DCJ
Background
On the evening of 14 May 2010, a coach carrying 28 passengers descended the Moss Vale Road into Kangaroo Valley near Fitzroy Falls. The driver, Graham Lees, failed to negotiate a hairpin bend with an advisory speed of 25 km/h. The coach broke through a crash barrier, became briefly airborne, and came to rest wedged in trees on a steep incline. Graham Lees was thrown from the coach and died instantly. One passenger, Jan Wizbicki, suffered a serious spinal injury causing partial paralysis. No other vehicles, road defects, or weather conditions contributed to the crash.
Two accused faced trial by judge alone on charges of unlawful killing by criminal negligence (manslaughter) and causing grievous bodily harm by negligent act. Simon Lees was a contractor responsible for maintaining the coach at G & S Minibus Pty Ltd, the company owned by the deceased. The prosecution alleged he knew the coach had defective brakes and a non-functional transmission retarder, and permitted it to be driven in an unsafe condition. Stuart Lewry was a Heavy Vehicle Inspector who had cleared the coach of defects in early May 2010 following a Roads and Traffic Authority pre-registration inspection. The prosecution alleged he signed off on the coach without properly inspecting it.
The deceased, Graham Lees, was the sole Accredited Operator for G & S Minibus and an experienced heavy vehicle driver licenced before 1974. His death and the grievous bodily harm suffered by Mr Wizbicki were not in dispute. What was disputed was the cause of the crash and whether criminal liability attached to either accused.
Legal Issues
- What caused the coach to leave the road, and was that cause linked to the conduct of either accused?
- Did each accused owe a duty of care to the driver and passengers?
- Did the conduct of each accused reach the threshold of criminal negligence under the common law principles established in Nydam v R?
- Was causation established, or did the actions of the deceased driver break the chain of causation between any breach of duty and the deaths and injuries?
- Was it open to convict each accused in circumstances where the prosecution could not exclude the possibility that the deceased made a voluntary and informed decision to drive the coach down the descent?
Decision
Haesler SC DCJ acquitted both accused on all counts. The central reason was that the prosecution could not exclude the possibility that Graham Lees, as an experienced and qualified driver and the Accredited Operator of the vehicle, was aware of the coach's condition and made a voluntary and informed decision to drive it down the steep descent regardless. That possibility, the court found, broke the chain of causation between any breach of duty by either accused and both the death of Graham Lees and the injury to Mr Wizbicki.
The court applied the principle that, in criminal negligence matters, the voluntary and informed decision of another person can constitute a new intervening cause that severs causal responsibility. Although that principle was developed primarily in other categories of homicide, the court found it applicable to criminal negligence manslaughter. The court emphasised that the prosecution bears the burden of proof on all essential elements beyond reasonable doubt, including the exclusion of a causation-defeating intervening act.
On the causation finding, the court noted that the same break in the chain applied to Mr Wizbicki's injury, even though he was an unknowing passenger. If Graham Lees' own actions constituted an intervening cause sufficient to sever the chain, that severance operated in respect of all consequences flowing from the crash, not only the driver's own death.
The court also engaged extensively with expert evidence concerning the mechanical condition of the coach, brake systems, and the dynamics of the descent. That analysis informed the factual findings about the cause of the crash, but the overarching causation reasoning was determinative of the verdicts for both accused.
Orders Made
- Simon Lees: Not Guilty on Count 1 (unlawful killing of Graham Lees) and Not Guilty on Count 2 (causing grievous bodily harm to Jan Wizbicki by negligent act).
- Stuart Lewry: Not Guilty on Count 1 (unlawful killing of Graham Lees) and Not Guilty on Count 2 (causing grievous bodily harm to Jan Wizbicki by negligent act).
Key Takeaways
- In criminal negligence manslaughter, the voluntary and informed decision of the immediate victim can break the chain of causation between a defendant's breach of duty and the resulting death or injury, even where the defendant's conduct was itself arguably negligent.
- The District Court confirmed that causation principles developed in other categories of homicide, including the significance of voluntary intervening acts, are applicable to criminal negligence manslaughter.
- Where multiple parties may have contributed to a fatal event, each accused's individual liability must be assessed separately; the involvement of others, including a deceased party who cannot give evidence, does not automatically establish or negate any individual's criminal responsibility.
- A break in the chain of causation arising from the deceased's own conduct operates to defeat liability not only for the deceased's death but also for injuries suffered by unknowing third parties in the same incident.
- In a judge-alone criminal trial, the court is required to expose its reasoning process expressly, demonstrating how the relevant legal principles were applied to the facts, including on issues of duty of care, criminal negligence, and causation.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW) ss 18, 54
- Criminal Procedure Act 1986 (NSW) ss 132, 133
- Evidence Act 1995 (NSW) ss 60, 66, 78, 79, 81, 82, 144, 165
- Civil Liability Act 2002 (NSW) s 5D
- Passenger Transport Act 1990 s 9D
- Passenger Transport Regulation 2007 cl 25
Cases:
- Nydam v R [1977] VR 430
- Burns v The Queen [2012] HCA 35; (2012) 246 CLR 334
- Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250
- Giorgianni v The Queen [1985] HCA 29; (1985) 156 CLR 473
- Justins v R [2010] NSWCCA 242; (2010) 79 NSWLR 544
- March v Stramare (E and MH) Pty Ltd (1991) 171 CLR 506
- Adeels Palace Pty Ltd v Moubarak [2009] HCA 48
- IL v The Queen [2017] HCA 27; (2016) 260 A Crim R 101
- R v Cittadini [2009] NSWCCA 302
- Graham v The Queen (1998) 195 CLR 606
- Arulthilakan v The Queen [2003] HCA 74; (2003) 78 ALJR 257