R v Simon George Lees; R v Stuart Lewry - [2019] NSWDC 117

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Simon George Lees; R v Stuart Lewry [2019] NSWDC 117
Hearing dates: 28 March 2019
Date of orders: 28 March 2019
Decision date: 28 March 2019
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
The applications for directed verdicts of not guilty are refused.

Catchwords: CRIME – trial – criminal negligence manslaughter – existence of duty of care.
CRIMINAL PROCEDURE – Judge alone trial – application for directed verdicts - no case submission - how much evidence is required? – quality of evidence need not be reviewed – enough that applicant accused could be found guilty.
Legislation Cited: Criminal Procedure Act 1986
Cases Cited: Burns v The Queen [2012] HCA 35; (2012) 217 A Crim R 501
Director of Public Prosecutions Reference Number 1 of 2017 [2019] HCA 9
Fleming v The Queen (1998) 197 CLR 250
Justins v R [2010] NSWCCA 242; (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; (2015) 91 NSWLR 276
R v R (1989) 44 A Crim R 404
R v Taktak (1988) 14 NSWLR 226
Category: Procedural and other rulings
Parties: Simon George Lees (Accused)
Stuart Lewry (Accused)
Director of Public Prosecutions
Representation:
Counsel:
Mr G Heathcote (for the Accused Simon Lees)
Mr T Healey (for the Accused Stuart Lewry)
Mr M Fox (for the Director of Public Prosecutions)
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

Judgment – EX TEMPORE REVISED

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Simon George Lees; R v Stuart Lewry

Details

AGLC: R v Simon George Lees; R v Stuart Lewry [2019] NSWDC 117
Case: [2019] NSWDC 117
Decision Date: 28 March 2019

CaseChat Overview and Summary

The case of R v Simon George Lees; R v Stuart Lewry was heard in an Australian court where the primary dispute revolved around the issue of criminal negligence manslaughter. The defendants, Simon George Lees and Stuart Lewry, were being tried for their alleged roles in a tragic incident where a person died due to the accused's negligence. The existence of a duty of care was central to the defence's argument, which questioned whether the accused owed a duty to the deceased that, if breached, could lead to criminal liability.

The court was required to decide on the legal sufficiency of the evidence presented to support a finding of criminal negligence manslaughter. Specifically, the court had to determine whether the prosecution had provided enough evidence to justify a conviction beyond a reasonable doubt. Additionally, the court needed to assess the quality of the evidence, particularly in the context of an application for a directed verdict of not guilty. The issue of how much evidence is necessary to prevent such an application was central to the proceedings.

In its reasoning, the court held that the prosecution's evidence was sufficient to allow the matter to proceed to a jury. The court held that the quality of the evidence need not be reviewed in detail at this stage; instead, the primary concern was whether the accused could be found guilty if the evidence was accepted as true. The court refused the applications for directed verdicts of not guilty, concluding that there was enough evidence for a jury to potentially find the accused guilty of the charges.

The final orders of the court were that the applications for directed verdicts of not guilty are refused, allowing the case to proceed to a full trial before a jury.

Orders

Orders of the court

The applications for directed verdicts of not guilty are refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Simon George Lees; R v Stuart Lewry [2019] NSWDC 117
Hearing dates:	28 March 2019
Date of orders:	28 March 2019
Decision date:	28 March 2019
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	The applications for directed verdicts of not guilty are refused.
Catchwords:	CRIME – trial – criminal negligence manslaughter – existence of duty of care. CRIMINAL PROCEDURE – Judge alone trial – application for directed verdicts - no case submission - how much evidence is required? – quality of evidence need not be reviewed – enough that applicant accused could be found guilty.
Legislation Cited:	Criminal Procedure Act 1986
Cases Cited:	Burns v The Queen [2012] HCA 35; (2012) 217 A Crim R 501 Director of Public Prosecutions Reference Number 1 of 2017 [2019] HCA 9 Fleming v The Queen (1998) 197 CLR 250 Justins v R [2010] NSWCCA 242; (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; (2015) 91 NSWLR 276 R v R (1989) 44 A Crim R 404 R v Taktak (1988) 14 NSWLR 226
Category:	Procedural and other rulings
Parties:	Simon George Lees (Accused) Stuart Lewry (Accused) Director of Public Prosecutions
Representation:	Counsel: Mr G Heathcote (for the Accused Simon Lees) Mr T Healey (for the Accused Stuart Lewry) Mr M Fox (for the Director of Public Prosecutions) 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