R v Conway [2020] NSWDC 816

District Court New South Wales

Medium Neutral Citation: R v Conway [2020] NSWDC 816 Hearing dates: 2 – 19 November 2020 Decision date: 24 November 2020 Jurisdiction: Criminal Before: Norrish QC DCJ Decision: Guilty to Counts 1, 3 & 4 Verdicts for Counts 2 & 5 not required Catchwords: CRIME – trial by Judge – manslaughter – failing to stop to offer assistance – steal motor vehicle – driver – circumstantial evidence – consciousness of guilt – circumstances of aggravation at time of impact – expert evidence Legislation Cited: Crimes Act 1900 Criminal Procedure Act 1986 Evidence Act 1995 Cases Cited: Fleming v The Queen (1998) 197 CLR 250 R v Borkowski [2009] NSWCCA 102 R v Pullman (1991) 25 NSWLR 89 Category: Principal judgment Parties: Regina (Crown) Sam Conway (Accused) Representation: Counsel: Mr R Herps (DPP) Mr M Smith (Accused) File Number(s): 2019/00212111 Publication restriction: No

Judgment

INTRODUCTION 1. The accused, Sam Conway, was arraigned on 2 November 2020 in respect of five counts relating to a fatal collision on 15 January 2019 at Tumbi Umbi (near Wyong) between a Land Rover Discovery (NSW registration DQS89V), "the Land Rover", allegedly driven by him, and a Kia sedan (AL80AY), "the Kia" driven by Darren Hill, in which Mr Hill was fatally injured. 2. Count 1, is a charge of "manslaughter" of Mr Hill, alleged to be by gross negligent act pursuant to s 18 Crimes Act 1900. The Crown abandoned the allegation of manslaughter by unlawful and dangerous act in its final submissions. In the alternative is Count 2, a charge of dangerous driving in circumstances of aggravation (namely, at a speed that exceeded the speed limit applicable to that length of road by more than 45 km/h). As it transpires, the Crown accepts that it cannot prove the circumstances of aggravation, so the alternative under s 52A Crimes Act 1900 stands; dangerous driving causing death. Count 3 is a charge alleging the accused drove the Land Rover when it was involved in an impact occasioning the death of Mr Hill and that the accused ought reasonably to have known that the impact occasioned death, or grievous bodily harm to him, but that the accused failed to stop to give assistance that was necessary and within his power to give, pursuant to s 52AB Crimes Act 1900. Count 4 is an allegation of taking and driving the Land Rover without the owner's consent, pursuant to s 154A Crimes Act 1900. Count 5, in the alternative to Count 4, is a charge of being driven in a motor vehicle without the consent of the owner pursuant to the same provision. To Counts 1 to 4 the accused pleaded "not guilty". He pleaded "guilty" to Count 5. The Crown did not accept that plea in satisfaction of the indictment. 3. The critical issue in relation to those four counts to which the accused has pleaded "not guilty" is whether the prosecution has proven beyond reasonable doubt that the accused was the "driver" at the time of the impact. An additional issue for consideration is whether in relation to Count 1, accepting the essential facts in relation to the circumstances of the collision giving rise to the death of the deceased if the accused is proven to be the driver, the driving of such a character to warrant the charge of manslaughter on whatever basis was advanced by the Crown. On this aspect, the defence position was that if 'driver' was established, the key issue was, had the manner of driving involved a risk of death or serious injury such as to render the accused liable for manslaughter, or "sufficiently beyond aggravated dangerous driving to render the accused (so liable)", even if proven to be the "driver" at impact, that did not establish that he "took" the vehicle as required to be proved in respect of Count 4.