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Court of Criminal Appeal 31 July 2026

Burgess v R; Burgess v R

[2026] NSWCCA 116

HomicideTraffic & driving

Citation: Burgess v R; Burgess v R [2026] NSWCCA 116
Court: Court of Criminal Appeal
Date: 31 July 2026
Judge(s): Mitchelmore JA, Hamill J, Emmett J

Background

Two business managers (the applicants) were charged with manslaughter by criminal negligence and a related accessorial offence following a fatal road incident in August 2021. A roll of steel wire, weighing approximately 26.5 kg, fell from a semi-trailer operated by a steel products business and struck another vehicle, killing the driver.

The Crown alleged the applicants were criminally negligent in two capacities: as participants in loading the trailer (the "loader duty") and as managers of the business responsible for the loading activity (the "manager duty"). The applicants conceded the loader duty but contested whether the manager duty could found a manslaughter charge at all.

After the Crown filed an amended Crown case statement, the applicants sought a ruling that the manager duty did not exist in law. The primary judge rejected that application in April 2026, permitting the Crown to proceed on both duty bases. The applicants sought interlocutory leave to appeal to the Court of Criminal Appeal against that ruling and an earlier decision.

  • Whether the facts alleged by the Crown were capable of establishing a duty of care arising from the applicants' managerial roles, sufficient to ground a conviction for manslaughter by criminal negligence
  • What principles govern the existence of a duty of care in negligence-by-omission manslaughter prosecutions, including the role of voluntary assumption of responsibility and causative contribution to the risk
  • Whether leave to appeal should be granted in respect of the second ground (accessorial liability for dangerous driving occasioning death) where the Crown had conceded the principal legal question in oral submissions

Decision

Ground 1: The 'manager duty' as a basis for manslaughter by criminal negligence

The Court surveyed the general principles for involuntary manslaughter by criminal negligence where negligence by omission is alleged. A duty of care capable of founding such a prosecution does not arise merely because a person holds a managerial role in a business that engages in dangerous activities. The Court emphasised that an incremental and analogical approach is required; reliance on a "salient features" analysis must be treated with caution.

The Court examined its earlier decision in R v Moore [2015] NSWCCA 316, where a duty of care was recognised for a manager. In that case, the majority accepted the duty partly because the accused played a causative role in the sequence of events creating the risk. The Court explained that voluntary assumption of responsibility for the safety of a dangerous activity may be a relevant consideration, but it is not by itself a touchstone for the existence of a duty sufficient to ground a criminal conviction.

Applying those principles, the Court found that the facts alleged by the Crown did not involve any act or conduct by which the applicants played a causative part in creating the danger, nor any act or conduct by which they personally assumed responsibility for the safety of the loading operation (setting aside their loader roles, which were already conceded). The Crown's amended case statement did not allege sufficient facts to establish the manager duty as a matter of law.

The Court allowed the appeal on Ground 1 and vacated the primary judge's April 2026 decision. The Court declined to grant the broader declaratory relief the applicants sought, noting that it did not exclude the possibility that a manager might in appropriate circumstances owe a relevant duty of care through managerial conduct or decisions.

Ground 2: Knowledge requirement for accessorial liability (dangerous driving occasioning death)

During oral submissions, the Crown conceded the principal legal question underlying Ground 2. The Crown accepted that proving each applicant knew the configuration of the load and restraints was insufficient; the Crown must also prove that each applicant knew the load restraints were poorly applied, such that there was a real risk of failure. That concession followed from the High Court's decision in Productivity Partners Pty Ltd v Australian Competition and Consumer Commission (2024) 281 CLR 338.

Because the parties were no longer in dispute on the legal question, the Court found there was no utility in granting leave to appeal on Ground 2. The Court also noted, without deciding, a separate question as to whether the primary judge's ruling on this ground constituted an "interlocutory judgment or order" within the meaning of s 5F of the Criminal Appeal Act 1912 (NSW).

Orders Made

  • Leave to appeal on Ground 1 granted; appeal allowed.
  • The primary judge's decision of 21 April 2026 vacated.
  • In respect of Count 1 against the first applicant: the Crown is not permitted to proceed on the basis that the facts alleged in the amended Crown case statement dated 25 March 2026 will, if proved, establish the manager duty of care alleged in that document.
  • In respect of Count 1 against the second applicant: the same prohibition applies to the corresponding manager duty alleged in that document.
  • The broader declaratory relief sought by the applicants (prayer 4 of the notice of appeal) was not granted.
  • Leave to appeal on Ground 2 refused.

Key Takeaways

  • A managerial role in a business that conducts dangerous activities does not, without more, give rise to a duty of care capable of grounding a conviction for manslaughter by criminal negligence; some causative contribution to the risk or personal assumption of responsibility for the specific dangerous activity is required.
  • The Court of Criminal Appeal confirmed that R v Moore [2015] NSWCCA 316 should not be read as establishing a general "manager duty" for all persons in supervisory positions; the duty recognised in that case turned on particular facts involving causative involvement in the creation of the risk.
  • Voluntary assumption of responsibility for the safety of a dangerous activity is a relevant consideration in identifying a duty of care, but it does not independently and automatically create such a duty for the purposes of a criminal prosecution.
  • Where the Crown concedes the central legal question in an interlocutory appeal, no utility exists in granting leave to appeal, even if the primary judge's original ruling addressed that question incorrectly.
  • Under the incremental and analogical approach required by Mallonland Pty Ltd v Advanta Seeds Pty Ltd (2024) 98 ALJR 956, courts must be cautious about deploying a "salient features" framework in novel duty of care scenarios in criminal proceedings.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5F
- Criminal Procedure Act 1986 (NSW), s 139(5)

Cases
- AF v R [2015] NSWCCA 35
- Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424; [2004] HCA 28
- Burns v The Queen (2012) 246 CLR 334; [2012] HCA 35
- Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649; [2009] NSWCA 258
- Cittadini v R [2009] NSWCCA 302
- Mallonland Pty Ltd v Advanta Seeds Pty Ltd (2024) 98 ALJR 956; [2024] HCA 25
- Miller v Miller (2011) 242 CLR 446; [2011] HCA 9
- Mitchell v Glasgow City Council [2009] 1 AC 874; [2009] 2 WLR 481
- Nydam v The Queen [1977] VR 430
- Patel v The Queen (2012) 247 CLR 531; [2012] HCA 29
- R v Evans [2009] 1 WLR 1999; [2010] 1 All ER 13
- R v F (2002) 129 A Crim R 126; [2002] NSWCA 125
- R v Miller [1983] 2 AC 161; [1983] 2 WLR 539
- R v Moore (2015) 91 NSWLR 276; [2015] NSWCCA 316
- R v Pocock (1851) 5 Cox CC 172; 17 QB 34
- R v Taktak (1988) 14 NSWLR 226; (1988) 34 A Crim R 334
- Turnbull v R [2016] NSWCCA 109