(2010) 79 NSWLR 544
Kelly v The King [1923] HCA 46
(1923) 32 CLR 509 at 515
May v O'Sullivan (1955) 92 CLR 654
Moore v R [2015] NSWCCA 316
Source
Original judgment source is linked above.
Catchwords
(2010) 79 NSWLR 544
Kelly v The King [1923] HCA 46(1923) 32 CLR 509 at 515
May v O'Sullivan (1955) 92 CLR 654
Moore v R [2015] NSWCCA 316
Judgment (9 paragraphs)
[1]
Solicitors:
Mr M Campbell (for the Accused Simon Lees)
Mr M Hanlon (for the Accused Stuart Lewry)
Ms E Costigan (for the Director of Public Prosecutions)
File Number(s): 2017/00062901; 2017/00005764
[2]
Introduction
Graham Lees died on 14 May 2010, after the passenger coach he was driving left the Moss Vale Road as it descended into the Kangaroo Valley, near the Barrengarry Mountain Nature Reserve. Jan Wizbicki, one of his passengers, was seriously injured in the crash. Simon Lees and Stuart Lewry have been charged with both manslaughter and grievous bodily harm by negligent act in relation to the death of Graham Lees and the injury to Jan Wizbicki.
It is alleged that Simon Lees was the manager of the bus company, owned and operated by his father, the deceased, Graham Lees. As manager Simon Lees was given and had assumed responsibility for the maintenance of the coach involved in the incident and was aware of it having both defective brakes and a non-functional transmission retarder. He was thus aware that the coach should not be driven and if driven would put drivers and passengers in danger.
Stuart Lewry was a Heavy Vehicle Inspector, to whom the coach had been taken in early May 2010 to have cleared the defects detected at a Road Transport Authority pre-registration inspection. One defect related to a brake imbalance between the Coach's rear wheels. It is alleged that Stuart Lewry, cleared the coach, allowing it to be re-registered without inspecting the coach, and that an inspection would have revealed that the coach's brakes were in an unsafe condition.
Both accused said they were not guilty to both charges and both elected for trial by Judge alone. The Director of Public Prosecutions did not oppose that application.
Judge alone trials should be conducted as closely as possible to those involving a jury. Principles of open justice demand that the proceedings take place in public and be as transparent as possible. Generally, all the rules and procedures developed for jury trials apply where possible. When the judge gives reasons, both for the verdict and for rulings during in the course of the trial, the judge must show that they have applied relevant principles and exposed their reasoning process. They must show expressly or by implication the way in which those principles have been taken into account: Section 133 Criminal Procedure Act 1986; Fleming v The Queen (1998) 197 CLR 250 at [28].
[3]
Application for directed verdicts
The Crown case has just now concluded after 17 days of hearing. An application was made immediately by both accused for verdicts by direction on the basis that one critical element of the charges relating to each of them cannot be established. That is, that there was, so far as each of accused was concerned and, so far as each count was concerned, a duty of care cannot be proved at law.
I was asked by defence counsel to make factual determinations. I note at this stage that I am not and cannot, review the weight to be given to the evidence in the Crown case, which is, in part, circumstantial. I cannot express, at this stage, an opinion as to whether I regard the evidence as satisfactory or not: R v R (1989) 44 A Crim R 404. The enquiry at this stage is not whether on the evidence as it stands an accused ought to be convicted but whether on the evidence as it stands he could lawfully be convicted: May v O'Sullivan (1955) 92 CLR 654, at 658. Neither can I take the case away from myself; after giving myself what was known as a "Prasad" direction. The rationale for that process no longer being available is set out by the High Court in Director of Public Prosecutions Reference Number 1 of 2017 [2019] HCA 9, at [57]. That decision applies to a judge sitting judge alone, as it would in a judge and jury trial.
[4]
Duty of Care
To establish criminal negligence, manslaughter, or grievous bodily harm by a negligent act, the first thing the prosecution must do is prove that the accused owed the deceased or person injured a duty of care. It is to that point that the present application is directed.
The existence of a breach of a duty is a necessary condition of a finding of criminal negligence. As a matter of law no accused can be convicted of a crime of criminal negligence unless they owed the person killed or injured a duty of care: Kelly v The King [1923] HCA 46; (1923) 32 CLR 509 at 515; Burns v The Queen [2012] HCA 35; (2012) 217 A Crim R 501 at [20]. If the accused did owe the deceased or person injured a duty of care five other questions follow:
1. What was the content of the duty?
2. Was there a breach of the duty?
3. What in precise terms was the breach of the duty?
4. Was the death of the deceased causally connected to the breach of the duty?
And finally, given these are criminal proceedings:
1. Was the breach of the duty of such great proportions, that the accused ought to be held criminally liable? See Justins v R [2010] NSWCCA 242; (2010) 79 NSWLR 544, at [226], per Simpson J.
The question of law about the existence of a duty of care must be addressed prospectively. The existence of a breach of a duty is a necessary condition of a finding of criminal negligence: Burns at [20]. Care must be taken not to conflate questions of duty and breach of duty, as the Chief Justice pointed out in Burns at [44]. It is essential that the Crown identify the act or omission said to constitute the breach of duty. But before that be done, they have to identify what the duty is.
[5]
Submissions
Mr Heathcote, for Simon Lees submitted that I could review the evidence and the state of the evidence after the close of the Crown case and if certain propositions A or B or C, could not be established beyond reasonable doubt at its highest, then the Crown case fails. He relied on a decision of the Court of Criminal Appeal, R v Moore [2015] NSWCCA 316; (2015) 91 NSWLR 276: Trial transcript - p. 1387. The submission was adopted by Mr Healy for Stuart Lewry.
I cut Mr Heathcote off during this portion of his submission, pointing out that this was not my understanding of the reasoning in Moore (2015).
Both Mr Heathcote and Mr Healy then took me to aspects of the evidence that they suggested showed the Crown had failed to establish the existence of a duty being placed on either accused.
Mr Crown in response particularised what he said was the duty of care of each accused.
In Moore the Chief Justice set out, at [121], a number of facts which established beyond reasonable doubt could give rise to a duty of care in that case. While the taxonomy of the facts that might support duties of care are not closed those factors were used as a template for each counsel's submissions to me: see Burns at [22].
[6]
Asserted Duty of Care
The Crown have just now articulated what they say are the matters relating to the duty of care so far as each accused is concerned. As I understand it the alleged duty in respect of each accused is now be particularised as follows:
So far as Simon Lees is concerned:
1. A reasonable person in his, Simon Lees, position would foresee a risk of serious injury being occasioned to a driver or passenger of the coach by reason of the coach not having adequate brakes, especially given it did not have a working retarder attached to its automatic transmission.
2. That Simon Lees had been given, and had assumed responsibility for the maintenance, repair and safety of all G & S's buses, including the coach the subject of this incident on 14 May 2010.
3. Jan Wizbicki, was as a passenger, vulnerable and ignorant of any problems with the bus,
4. And that at the relevant time Graham Lees was similarly ignorant.
5. Simon Lees had control over the buses in the fleet. He had the authority to order parts, order repairs, have repairs done and give directions to the mechanic on the premises. He had, in effect, day to day control of the business.
6. Simon Lees would organise a replacement bus when a bus or coach could not be drive for example if a brake failure had been reported.
Further, the Crown submit, moving from the taxonomy set out in Moore at [121], and applying the principles discussed in Burns and R v Taktak (1988) 14 NSWLR 226, that:
1. Simon Lees played a causative part in the sequence of events leading to the bus leaving the road, in that he was aware, because of what he had been told by bus drivers, Kirk, Siminsky, Batovac and True, that the brakes were a problem on the bus, and that he was aware of this and the danger that posed given the retarder was not working, and
2. That he was complicit in Mr Lewry's issue of an illicit compliance notice by.
It was said that that sequence of events noted in points 7 & 8 gives rise to a duty to avert or lessen the risk of a brake failure and the consequent injury to the driver and passengers.
The rationale for the duty is that there is a serious risk of foreseeable injury if Simon Lees did not fulfil this duty, and that all of those matters, 1 to 8, required reasonable care be taken to avoid the risk.
In general terms, the measure of the discharge of the duty is what a reasonable person in the position of the person having the duty within all the circumstances do in response to that foreseeable risk.
So far as Mr Lewry is concerned, the Crown case at the close of prosecution evidence is that Simon Lewry had a duty of care because:
1. He had statutory or regulatory obligations to inspect the coach that would be the subject of his signing of a compliance certificate: Exhibit 32. The source of his duty was that he was a licensed Heavy Vehicle Examiner.
2. Given his position as a Heavy Vehicle Examiner, the regulations and the importance of his decisions; his duty was to exercise reasonable care to prevent foreseeable injury arising from the certification of a bus as roadworthy, because a defective part had been rectified when that part had not been rectified.
3. The extent of his duty was to inspect the coach and ensure that the defective part had been rectified. I do not understand the Crown case to be that he was required to do anything more than use the tools and methods normally available to him.
Again, as with Mr Lees, the reason for the duty of care being imposed on him was risk of foreseeable injury if his job was not done, and a requirement that reasonable care be taken to avoid that risk.
The measure of the discharge of the duty is what a reasonable person in the position of Lewry would, in all the circumstances do in regard to that foreseeable risk.
[7]
Consideration
In Burns at [20], Chief Justice said, "The question of whether a given set of facts gives rise to a duty of care is a question for the judge." It is important to note that the Chief Justice did not say, "proved set of facts", but used the word "given". Moore was concerned with a hypothetical case as no evidence was formally tested before the judge at first instance and a jury had not at that stage, or any stage, been empanelled.
Returning to Burns at [20], the question of whether a given set of facts give rise to a duty of care, is a question for the judge. The question of whether the facts exist is a question for the jury.
That leads me now to a consideration of Moore (2015). Chief Justice Bathurst repeated the now accepted position that, "While there would be many instances where the existence of a duty is not in dispute, in more complex cases it will be necessary to direct the jury that only if certain facts are found, but not otherwise, will a duty exist." At [12].
Simpson J discussed the practical difficulties in the application of this principal in a jury trial (at [148] to [153] and [190]). In particular, she noted the difficulty that could arise if a judge made a finding of law before facts were determined by the jury. The accepted position, she noted, "could become unworkable if a hypothesised factual basis for proposing the duty includes multiple facts." Her Honour appeared to accept that when there are disputed issues of facts relevant to the existence or otherwise of a duty of care or its content, a ruling as to that duties existence could be made contingently. She concluded, "These considerations make it plain that a ruling as to the existence of a duty to a particular act can rarely, if ever, be made in advance of a jury determination of the facts." At [153] & [154].
Her Honour returned to these propositions at [190]. She there said, "Even if it can be said with certainty that a duty of care exists, the critical question is what is encompassed in the duty of care. The question is whether the duty extends to do the act, omission of which caused death," citing Burns at [97].
Moore was decided on the evidence available to the Court of Criminal Appeal. That evidence went to whether the defendant did play the causative role in the sequence of events which had given rise to a risk of injury and the Crown argument, what that relevant risk was - there a risk of collapse of a wall. Bellew J agreed with both the Chief Justice and Simpson J. Bellew J noted at [259] that, "the Chief Justice set out a number of factors which, may (my emphasis) have rendered it open to the jury to conclude that the respondent owed a duty of care to the deceased…those factors were capable of supporting such a conclusion, the issue should have been left to the jury."
I note the words, "those factors were capable of supporting such a conclusion." (my emphasis again).
With great respect, while Simpson J's reasoning is persuasive, in a jury trial, legal determinations must precede the jury's determination as to facts. The judge cannot pre‑empt them. All that a judge can do is take the evidence at its highest and put the alternative contingencies to a jury for them to apply the facts found to. In a number of respects, a judge alone trial and the requirements give reasons to remove some of the problems noted. However, where an application is made before the close of evidence in the trial itself, matters can be complicated.
[8]
Determination
I assess the duty of care allegedly owed by each accused by considering; the source of the duty, the requirement to exercise reasonable care, the extent of the duty and the reason for the duty.
The duty of care now particularised by the Crown against each accused could, if proved beyond reasonable doubt, amount to a duty of care toward both Graham Lees and Jan Wizbicki.
As a matter of law I find that both Stuart Lewry and Simon Lees could, if the evidence in the Crown case or the evidence at trial supports the existence of that duty, be held to have that duty.
Whether the evidence comes up to proof is a matter for me to determine at another time. I reiterate that the existence of a duty of care is only one of the pertinent questions that I need to ask in the course of this trial. And that if the evidence does not establish beyond reasonable doubt the existence of the duty of care an accused is entitled on that basis to an acquittal.
For those reasons, the applications for directed verdicts of not guilty are refused.
[9]
Amendments
20 September 2019 - Amendment made to [35] to include the word not.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 20 September 2019