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District Court 24 November 2020

R v Conway

[2020] NSWDC 816

HomicideTheft & propertyTraffic & drivingPublic order & justice offences
CRIME TRIAL BY JUDGE MANSLAUGHTER FAILING TO STOP TO OFFER ASSISTANCE STEAL MOTOR VEHICLE DRIVER

Citation: R v Conway [2020] NSWDC 816
Court: District Court of New South Wales
Date: 24 November 2020
Judge: Norrish QC DCJ

Background

A fatal collision occurred in the early hours of 15 January 2019 at Tumbi Umbi on the New South Wales Central Coast. A Land Rover Discovery, allegedly driven by the accused, was travelling on the wrong side of a dual carriageway and struck a Kia sedan driven by the victim, Darren Hill, who was fatally injured. The Land Rover had been taken without its owner's consent earlier that morning.

The accused was charged with five counts: manslaughter, dangerous driving causing death (in circumstances of aggravation, alternatively without those circumstances), failing to stop and give assistance after an impact, taking the Land Rover without the owner's consent, and being driven in a motor vehicle without the owner's consent. The accused pleaded guilty to the last count only; the Crown did not accept that plea in satisfaction of the indictment.

The prosecution's case was built largely on circumstantial evidence, including CCTV footage, credit card transaction records, DNA and fingerprint evidence, black box data from the Land Rover, and the statements and testimony of associates of the accused who were present in the broader group on the night in question.

  • Whether the prosecution proved beyond reasonable doubt that the accused was the driver of the Land Rover at the time of the fatal impact
  • Whether, if the accused was the driver, the manner of driving was of a character sufficient to establish manslaughter by gross negligence under section 18 of the Crimes Act 1900
  • Whether the Crown could prove the circumstances of aggravation (exceeding the speed limit by more than 45 km/h) required to elevate the dangerous driving charge under section 52A
  • Whether the accused "took" the Land Rover, as required to establish the taking-without-consent charge under section 154A, distinct from merely driving it after another person had taken it

Decision

The central factual question was identity: was the accused the driver? The Crown relied on CCTV footage placing the accused alone in the driver's seat of the Land Rover at a nearby McDonald's restaurant approximately 51 minutes before the collision, the absence of any DNA or fingerprints from the nominated alternative driver (Ryan Corby) in the vehicle, the presence of the accused's own DNA and fingerprints in the Land Rover, and evidence from associates about the movements of the group that night.

On the manslaughter count, the Crown ultimately proceeded only on the basis of manslaughter by gross negligent act, abandoning the unlawful and dangerous act alternative. The accused's defence, even if driver status was established, was that the driving did not reach the threshold required for manslaughter, but rather fell within the lesser offence of dangerous driving causing death. The court was therefore required to assess whether the driving conduct, including travelling on the wrong side of a four-to-five-lane dual carriageway at speeds up to 120 km/h before impact on a blind bend in the early hours of the morning, crossed into gross negligence.

On the aggravated dangerous driving count, the Crown accepted it could not prove that the speed at impact exceeded the limit by more than 45 km/h. The black box data recorded a speed of 73.4 km/h at impact in a 60 km/h zone, falling short of the required margin. The alternative charge of dangerous driving causing death therefore remained.

The question of whether the accused "took" the vehicle, as opposed to being a passenger who later drove it after another had taken it, was an additional issue raised specifically in relation to the taking-without-consent count.

Orders Made

No orders were made in this decision.

Key Takeaways

  • The District Court was required to determine guilt on multiple charges entirely through circumstantial evidence, with identity as the driver being the threshold question on which all substantive counts depended.
  • A charge of manslaughter by gross negligence under section 18 of the Crimes Act 1900 requires more than dangerous driving causing death; the conduct must rise to the level of gross negligence, and the court treated this as a distinct and higher threshold requiring separate analysis.
  • Where the Crown conceded at trial that the circumstances of aggravation could not be proved, the aggravated form of the dangerous driving charge fell away, leaving the base offence of dangerous driving causing death under section 52A of the Crimes Act 1900.
  • Proving that an accused "took" a vehicle without consent under section 154A is a separate inquiry from proving the accused drove it; establishing driving at the time of impact does not necessarily establish that the accused was the person who originally took the vehicle.
  • Black box (event data recorder) evidence played a significant role in establishing vehicle speed leading up to and at impact, demonstrating the forensic utility of such data in reconstructing the circumstances of fatal collisions.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 18, 52A, 52AB, 154A
- Criminal Procedure Act 1986 (NSW)
- Evidence Act 1995 (NSW)
- Motor Accidents Compensation Act 1999 (NSW), s 221

Cases
- Fleming v The Queen (1998) 197 CLR 250
- R v Borkowski [2009] NSWCCA 102
- R v Pullman (1991) 25 NSWLR 89