Citation: R v Sleiman [2022] NSWDC 41
Court: District Court of New South Wales
Date: 1 March 2022
Judge: Haesler SC DCJ
Background
A young provisional licence holder drove his Nissan Silvia on Lady Wakehurst Drive in the Royal National Park on 25 April 2020, carrying a friend in the front passenger seat. The vehicle was travelling at between 96 and 98 km/h in a 60 km/h zone on a winding, tree-lined road. The Nissan lost traction on a corner, crossed the centre lines, left the road, and struck a large tree. The front seat passenger died from his injuries.
The accused was charged with two offences under the Crimes Act 1900: driving in a manner dangerous causing death (Count 1, section 52A(1)(c)) and failing to stop and give assistance after an impact causing death (Count 2, section 52AB(1)). He elected a judge-alone trial under section 132 of the Criminal Procedure Act 1986, with the DPP's consent.
On the trial date, the accused pleaded guilty to Count 1 but contested Count 2. He acknowledged that dangerous driving occurred but disputed the precise speed and degree of culpability. He maintained either that the prosecution could not establish a critical element of Count 2, or that the proven facts did not constitute the offence. The factual dispute relevant to sentencing on Count 1 was heard alongside the Count 2 trial, as the same findings would inform both proceedings.
Legal Issues
- Whether the phrase "failed to stop and give any assistance" in section 52AB(1) of the Crimes Act 1900 imposes a single composite obligation or two separate and distinct obligations (to stop, and to render assistance).
- Whether the accused's act of physically stopping at or near the scene, without calling emergency services, satisfied the requirements of section 52AB(1).
- What speed the Nissan was travelling immediately before the crash, and how that finding should affect the accused's level of culpability on sentence for Count 1.
- Whether the statutory word "and" in the phrase "stop and give any assistance" should be read conjunctively (requiring both acts to be done) or as an expression of a single composite duty.
Decision
On Count 2, the central statutory question was whether "failed to stop and give any assistance" in section 52AB(1) creates two obligations or one. The accused argued he had stopped at the scene, and that therefore an essential element of the offence was not made out. Haesler SC DCJ rejected that argument.
Drawing on principles of statutory interpretation, including the concept of "hendiadys" (where two words joined by "and" express a single idea) and the legislative history of the provision, the court concluded that the section imposes two distinct obligations: the driver must stop, and the driver must render assistance. The word "and" was read as "and/or" in the context of the provision's purpose, meaning that failing to fulfil either obligation independently constitutes the offence. The court found that even accepting the accused had physically stopped, he remained obliged to give assistance. At a minimum, that meant using his phone to call emergency services, which he did not do.
On the factual dispute for sentencing purposes, the court found the Nissan was travelling at between 96 and 98 km/h immediately before the crash, well above the 60 km/h limit and beyond the 90 km/h maximum permitted on the accused's provisional licence. The vehicle was also a type the accused was prohibited from driving on his P1 licence. The court characterised the driving as motivated by thrill-seeking and showing off, and found the accused lacked sufficient experience to manage the vehicle in those conditions.
Matters raised by the defence about the accused's shock and his belief the passenger was already dead were treated as relevant to culpability, not to the question of criminal liability under Count 2.
Orders Made
- The matter was adjourned for sentence on 29 April 2022 at 2:00 pm.
- The parties were directed to file documents in compliance with District Court Practice Note 20.
Key Takeaways
- The District Court held that section 52AB(1) of the Crimes Act 1900 imposes two separate obligations: the driver must stop, and the driver must give any necessary assistance. Satisfying only the first obligation does not avoid liability under the section.
- Under that construction, a driver who stops at the scene but fails to call emergency services, when that call was within their power and capacity, commits the offence of failing to give assistance after an impact causing death.
- A driver's shock, trauma, or subjective belief that the victim is already deceased may bear on the degree of culpability at sentencing, but those circumstances do not negate the legal obligation to render assistance.
- In a judge-alone trial, the court is required not merely to return a verdict but to expose its full reasoning process, identify the applicable legal principles, summarise the parties' arguments, and resolve all issues of law and fact that bear on the verdict.
- Disputed facts at sentencing are governed by the Olbrich standard: matters in mitigation must be established on the balance of probabilities, while matters in aggravation must be proved beyond reasonable doubt.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), sections 52A(1)(c) and 52AB(1)
- Criminal Procedure Act 1986 (NSW), sections 132 and 132A
- Evidence Act 1995 (NSW), sections 4 and 48
- Crimes Amendment (Road Accident) Act 2005 (NSW) (repealed)
Cases
- Olbrich v The Queen (1999) 199 CLR 270; [1999] HCA 54
- R v Pullen [2018] NSWCCA 264
- R v Scott [2003] VSCA 55; 141 A Crim R 323
- R v Shashati [2018] NSWCCA 167
- R v Youseff (1990) 50 A Crim R 1
- Ryan v The Queen (1967) 121 CLR 205; [1967] HCA 2
- The Queen v Falconer (1990) 171 CLR 30; [1990] HCA 40
- Victims Compensation Fund Corporation v Brown [2003] HCA 54; (2003) 77 ALJR 1797
- WW v R [2012] NSWCCA 165