R v Simon Lees (No 2) (Verdict); R v Stuart Lewry (No 2) (Verdict)

[2019] NSWDC 118

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Simon Lees (No 2) (Verdict); R v Stuart Lewry (No 2) (Verdict) [2019] NSWDC 118
Hearing dates:	4 - 8 March 2019, 11 - 15 March 2019, 18 - 22 March 2019, 25 - 29 March 2019, 1 - 3 April 2019,
Date of orders:	11 April 2019
Decision date:	11 April 2019
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Simon Lees Verdict on Count 1: the unlawful killing of Graham Lees - Not Guilty Simon Lees Verdict on Count 2: causing grievous bodily harm to Jan Wizbicki by negligent act - Not Guilty. Stuart Lewry Verdict on Count 1: the unlawful killing of Graham Lees – Not Guilty. Stuart Lewry Verdict on Count 2 causing grievous bodily harm to Jan Wizbicki by negligent act – Not Guilty.
Catchwords:	EVIDENCE – Expert evidence – common knowledge – experts exceeding expertise – hearsay – exceptions to the hearsay rule – admissions – first hand evidence supporting second hand admission – no objection – unreliable evidence warning. CRIMINAL PROCEDURE – Judge alone trial – necessary objection – expert evidence – no case submission – assessment of evidence. CRIME – trial – criminal negligence manslaughter – relevant principles - duty of care – adoption of civil law principles – assessing individual liability – causation and negligence – review of evidence.
Legislation Cited:	Civil Liability Act 2002 (NSW) s 5D Crimes Act 1900 (NSW) ss 18 and 54 Criminal Procedure Act 1986 (NSW) ss 132 and 133 Evidence Act 1995 (NSW) ss 60, 66, 78, 79, 81, 82, 144, 165 Passenger Transport Act 1990 s9D Passenger Transport Regulation 2007 cl 25
Cases Cited:	Adeels Palace Pty Ltd v Moubarak [2009] HCA 48 Anderson v R [2001] VR 1 Arulthilakan v The Queen [2003] HCA 74; (2003) 78 ALJR 257 Bennett v. Minister of Community Welfare [1992] HCA 27; (1993) 176 CLR 408 Burns v The Queen [2012] HCA 35; (2012) 246 CLR 334 Campbell v The Queen (1981) WAR 286 at 290; (1980) 2 A Crim R 157 Coombes v Roads and Traffic Authority & Ors [2006] NSWCA 229 Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250 Giorgianni v The Queen [1985] HCA 29; (1985) 156 CLR 473 Graham v The Queen (1998) 195 CLR 606 IL v The Queen [2017] HCA 27; (2016) 260 A Crim R 101 Justins v R [2010] NSWCCA 242; (2010) 79 NSWLR 544 Kelly v The King [1923] HCA 46; (1923) 32 CLR 509 March v. Stramare (E and M.H.) Pty. Ltd. (1991) 171 CLR 506 Moore [2005] NSWCCA 216;(2015) 91 NSWLR 276 Nydam v R [1977] VR 430 R v Burgess [1862] Eng R 153 R v Cittadini [2009] NSWCCA 302 R v Hennigan [1971] 3 All ER 134 R v Lees; R v Lewry [2019] NSWDC 117 R v Longbottom (1849) Cox’ Criminal Cases 439 R v XY [2010] NSWCCA 181; (2010) 79 NSWLR 62 Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378 The Queen v Hillier [2007] HC 17; (2007) 228 CLR 618 The Queen v Lavender [2005] HCA 37; (2005) 222 CLR 67 Thompson v Australian Capital Television Pty Ltd & Ors Thompson v Australian Capital Television Pty Ltd [1996] HCA 38; (1996) 186 CLR 574 Velevski v The Queen (2002) HCA 42; (2002) 76 ALJR 402 Wacker v R [2002] EWCA Crim 1944: (2003) QB 1207 Wilson v The Queen [1992] HCA 31; (1992) 174 CLR 313
Texts Cited:	Fleming, The Law of Torts, 8th edition (1992)
Category:	Principal judgment
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

table of contents

Introduction - paragraph 1

A Criminal trial by Judge alone - paragraph 9

Necessary elements - paragraph 12

A duty of care - paragraph 19

Assessing individual liability - paragraph 22

Causation and negligence at common law - paragraph 31

General Directions

Two trials - paragraph 50

Onus and Standard of Proof - paragraph 52

Circumstantial evidence - paragraph 54

Common Knowledge - paragraph 56

Uncalled witness & evidence - paragraph 57

Good character - paragraph 59

The Accused’s evidence - paragraph 62

Assessing witnesses - paragraph 64

Expert Evidence - paragraph 65

Assessing photographic evidence - paragraph 68

Technical terms

Accredited operator - paragraph 69

Engine transmission - paragraph 72

Engine retarder - paragraph 73

Engine by gear selection retardation - paragraph 74

Exhaust brakes - paragraph 75

Service brakes - paragraph 76

Operation of the service Brake - paragraph 77

Parking brake, Emergency brake or Maxi brake - paragraph 78

Brake drum - paragraph 80

Brake pads: - paragraph 83

Brake fade: - paragraph 86

Push Rod - paragraph 87

Slack adjuster - paragraph 88

MAHA - paragraph 91

Decelerometer - paragraph 92

VIS - paragraph 93

Cage bolts: - paragraph 94

The course of the trial - paragraph 95

The Crown case - paragraph 97

Prosecution Evidence - paragraph 100

Expert evidence - paragraph 204

Expert summaries

Peter Dobson Exhibit 34 - paragraph 208

Graham Lawrie Exhibit 20 - paragraph 215

John Lambert Exhibit 13 - paragraph 219

Dr R Casey - paragraph 233

Tia Gaffney mechanical engineer: Exhibit Lewry A - paragraph 238

Chronology Evidence - paragraph 249

Application for directed verdicts - paragraph 273

The Defence cases - paragraph 274

Stuart Lewry’s evidence - paragraph 281

Simon Lees’ evidence - paragraph 300

Consideration Expert Evidence - paragraph 329

Grime analysis - paragraph 343

Findings Expert Evidence - paragraph 360

An admission by conduct - paragraph 362

Assessment Pam Lees - paragraph 382

Assessment Simon Lees - paragraph 386

Assessment Stuart Lewry - paragraph 393

Closing submissions

Prosecution Submissions - paragraph 397

Should Simon Lees be regarded as having special knowledge and experience? - paragraph 398

Submission for Simon Lees - paragraph 403

Submissions for Stuart Lewry - paragraph 404

Consideration - paragraph 407

The cause of the crash - paragraph 408

A duty of care? - paragraph 411

Stuart Lewry - paragraph 415

Determination Stuart Lewry - paragraph 420

Simon Lees - paragraph 431

Determination Simon Lees - paragraph 435

A break in the chain of causation - paragraph 444

Verdict.

Simon Lees - paragraph 453

Stuart Lewry - paragraph 455

Judgment

Introduction

1. Graham Lees died at 7:26 PM on 14 May 2010, after the coach he was driving left the Moss Vale Road, as it descended into the Kangaroo Valley from Fitzroy Falls, near the Barrengarry Mountain Nature Reserve. One of his passengers, Jan Wizbicki, was seriously injured in the crash. Most of the other 27 passengers were hurt. The coach, an Austral Starliner TV 3574, left the roadway as it went into a hair pin bend about 5.5 km down the descent. The coach went through a metal crash barrier and was briefly airborne before going down a steep incline and becoming wedged in trees. Graham Lees was thrown from the coach and died instantly.

2. Jan Wizbicki had been sitting in the rear seat facing the aisle. He was thrown into the aisle. He suffered a thoracic spinal fracture/dislocation injury to the T5/T6 area of his spine. A surgical procedure, a laminectomy and fusion, was required to stabilise the injury. The injury caused partial paralysis in both lower legs - 2/5th on left and 4/5th on right. This was a really serious injury, amounting to grievous bodily harm.

3. No other vehicles were involved in the crash. It was a cool dry night. It was dark; the sun and moon had both gone down. Visibility was reasonable, although the surrounding area is heavily wooded. There was a light wind. Nothing on, or in, the roadway caused the crash. Graham Lees suffered no medical condition that interfered with his capacity to drive. He was sober and unaffected by drugs.

4. Graham Lees, born 21 May 1952, was an experienced bus driver. He was licenced before 1974. He had been driving heavy vehicles since he served in the Australian Army as a young man. He had a good driving record. He was the owner and Managing Director of G & S Minibus Pty Ltd (G & S). In order to operate a public bus company a member of staff must be an accredited Operator. Graham Lees was the only Accredited Operator for G & S.

5. Graham Lees’ death is not in dispute nor is the fact that grievous bodily harm was suffered by Mr Wizbicki. It is not in dispute that at the point it left the roadway TV 3574 was travelling too fast for the corner and failed to negotiate a steep hair pin bend that had before it an advisory sign of 25 kph. Much else is in dispute; including the cause, or causes, of the crash and who was responsible for it.

6. These are criminal trials. I must determine whether responsibility attaches to the two men; Simon Lees and Stuart Lewry, who are now accused of unlawful killing by criminal negligence and causing grievous bodily harm by negligent act. Accordingly, given the prosecution onus of proof, before criminal liability can attach to an individual, it is critical that I appreciate; what caused the vehicle to leave the road, and what was or was not known in advance of the crash about the condition of the coach and what if anything was done to fix potential problems. As a matter of law I must assess what, if any, duty of care an accused owed Graham Lees and Jan Wizbicki.

7. Simon Lees worked for G & S. He was, as were all those who worked for G & S, notionally as an independent contractor. It is alleged that 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. It is alleged he was aware that the coach should not be driven and, if driven, drivers and passengers would be put in danger.

8. Stuart Lewry was a Heavy Vehicle Inspector, to whom TV 3574 had been taken in early May 2010, to have cleared defects detected at a Road Transport Authority (RTA) 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 of defects, 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.

A Criminal trial by Judge alone

9. Each accused said they were not guilty to both charges and each accused elected for trial by Judge alone.  The Director of Public Prosecutions did not oppose that application. 

10. 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. 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 expose their reasoning process. The judge 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] HCA 68; (1998) 197 CLR 250, at [28].

11. Accordingly, I am required not only to set out what facts I rely on, particularly in relation to the cause of the coach crash, but also, before convicting, explain why if proved, those facts justify attributing casual responsibility to an accused. That determination can only be addressed by reference to the duty of care, if any, expected of an accused. As this is a criminal trial the prosecution bear the onus of proof of all essential elements of a charge beyond reasonable doubt.

Necessary elements

12. Section 18 Crimes Act 1900, sets out of the circumstances in which an unlawful killing will be categorised as murder. Section 18 contains no definition of what constitutes manslaughter. For that, it is necessary to go to the common law. There are two categories of manslaughter - voluntary manslaughter and involuntary manslaughter: see Wilson v The Queen [1992] HCA 31; (1992) 174 CLR 313, at p 333 [49]; The Queen v Lavender [2005] HCA 37; (2005) 222 CLR 67, at [2]. There are, in turn, two categories of involuntary manslaughter - manslaughter by unlawful and dangerous act and manslaughter by criminal negligence. The same conduct may give rise to liability under either category: Burns v The Queen [2012] HCA 35; (2012) 246 CLR 334, at [6].

13. In all criminal trials the prosecution are required to prove beyond reasonable doubt each element of the offence. In almost all criminal trials the prosecution are required to prove beyond reasonable doubt that an accused acted deliberately with both a guilty mind and guilty acts. However, where criminal negligence is alleged in order to establish manslaughter by criminal negligence the prosecution must prove:

That the act which caused the death was done by the accused consciously and voluntarily (without any intention of causing death or grievous bodily harm) in circumstances which involved such a great falling short of the standard of care which a reasonable man would have exercised and which involved such a high risk that death or grievous bodily harm would follow that the doing of the act merited criminal punishment: Nydam v R [1977] VR 430 at 445: Wilson v The Queen at 333; The Queen v Lavender; Burns v The Queen at [19].

14. The elements of manslaughter by criminal negligence are:

(i) that the accused owed a duty of care to the deceased;

(ii) that the accused acted in breach of that duty (whether by act or omission);

(iii) that the act or omission amounting to breach of duty caused or was a substantial cause of, or accelerated, the death of the deceased;

(iv) that that act merited criminal punishment because:

(a) it fell so far short of the standard of care which a reasonable person would have exercised in the circumstances; and,

(b) it involved such a high risk that death or really serious bodily harm would follow; and

(c) that the degree of negligence involved in the conduct is so serious that it should be treated as criminal conduct.

15. The term “accelerate” is defined in the Macquarie Dictionary as “to advance faster.” It is not a relevant consideration here.

16. The prosecution must prove beyond reasonable doubt that an accused either committed an act or omitted to do an act and that this act or omission caused, or was a substantial cause, of the death. It is not suggested that there was any one cause of Graham Lees’ death or the injury to Mr Wizbiki. The term “substantial” is defined in the Macquarie Dictionary as: “of considerable amount or size.” English authorities, speak of “substantial” in the context of criminal negligence as being “no more than de minimus” or “not too remote” and “a real cause as opposed to a minimal cause:” for example R v Hennigan [1971] 3 All ER 134 at 135.

17. In order for the prosecution to establish manslaughter by criminal negligence similar legal principles apply.

18. The elements of grievous bodily harm by criminal negligence are:

(i) that the accused owed a duty of care to the injured person;

(ii) the injury amounted to grievous bodily harm.

(ii) that the accused acted in breach of that duty (whether by act or omission);

(iii) that the act or omission amounting to breach of duty caused or was a substantial cause of the of the injury

(iv) that that act merited criminal punishment because:

(a) it fell so far short of the standard of care which a reasonable person would have exercised in the circumstances; and

(b) it involved such a high risk that really serious bodily harm would follow; and

(c) that the degree of negligence involved in the conduct is so serious that it should be treated as criminal conduct.

A duty of care

19. 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, at [20].

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:

5. 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.

21. The question of law about the existence of a duty of care must be addressed prospectively.  Care must be taken not to conflate questions of duty and breach of duty: Burns, at [44]. It is essential that the prosecution 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.

Assessing individual liability

22. It is essential that the act or omission that amounts to a breach of duty is the act or omission that causes death: Justins, at [64].

23. Where persons agree to commit a crime each can be liable for the crimes of the others who share the same criminal purpose. Intentional participation in a crime is required for there to be such joint or shared liability. Only the category of involuntary manslaughter that involves criminal negligence, or crimes such as s 54 Crimes Act 1900 that specifically aver negligence, are exceptions to that general rule. For these exceptional cases the common law of negligence, a civil law concept, is incorporated into the criminal law.

24. Here the prosecution rely on some different facts as against each accused, although some are shared. They also rely, to an extent, on the actions of the deceased, Graham Lees. Manslaughter by unlawful and dangerous act requires an accused have some knowledge of the essential circumstances of the crime. Criminal negligence manslaughter has no such requirement. There is no concept in the criminal law of joint negligent enterprise. The law generally does not allow for secondary liability in criminal negligence cases, rather a number or people can be separately liable in negligence for one outcome. In such a case negligence does not make another liable as secondary party: Giorgianni v The Queen [1985] HCA 29; (1985) 156 CLR 473.

25. In IL v The Queen [2017] HCA 27; (2016) 260 A Crim R 101, the High Court considered causation issues where one person involved in an enterprise died and the other was held responsible for the death. IL v The Queen concerned principles relating to a common criminal purpose relating to manslaughter by unlawful and dangerous act, not criminal negligence.

26. Chief Justice Kiefel, Keane and Edelman JJ made it clear that when assessing liability of an accused; “It is the acts which are attributed … not the liability: at [2]. However, at [29], when speaking of attribution of liability where there is a common purpose they said:

“There should not be anything surprising in the notion of attributing the acts of one person to others with a common criminal purpose where the person's acts are in the course of, or incidental to, carrying out a common criminal purpose.  The same principle applies in civil cases, where, apart from cases of employment or agency, "to constitute joint tortfeasors two or more persons must act in concert in committing the tort" Thompson v Australian Capital Television Pty Ltd [1996] HCA 38; (1996) 186 CLR 574 at 580-581; [1996] HCA 38.”

27. Gaegler J., in dissent, noted that in their judgments Kiefel CJ, Keane and Edelman JJ and Bell and Nettle JJ, did not address manslaughter as a discrete topic: at [124]. He then said, “The common law never recognised involuntary manslaughter to extend to self-manslaughter:” R v Burgess [1862] Eng R 153, at [127].

28. If several people (in civil law called tortfeasors) are responsible for a negligent act that causes an injury or death following criminal negligence they are each responsible for the same damage. Each tortfeasors’ liability is separate and distinct from the others who may also be responsible for the tort. In contrast joint tortfeasors are responsible for the same tort: Fleming, The Law of Torts, 8th ed (1992) at 255. For individuals to be joint tortfeasors "there must be a concurrence in the act or acts causing damage, not merely a coincidence of separate acts which by their conjoined effect cause damage:” The Koursk [1924] P 140, at 159-160:G. Persons who breach a joint duty may also be joint tortfeasors. Otherwise, to constitute joint tortfeasors two or more persons must act in concert in committing the tort. Torts of all kinds may be joint: Thompson v Australian Capital Television Pty Ltd & Ors.

27. IL v The Queen, has some relevance here; as on one possible fact scenario Simon Lees and Graham Lees were both acting together; in failing to maintain the coach, in not connecting the retarder, in not repairing the brakes and in allowing the coach to be driven on 14 May 2010, knowing that it did not have working rear brakes. If they were acting together and breaching the same duty to passengers and drivers of the coach they may have been joint tortfeasors in a criminally negligent act.

28. That said, the prosecution here did not rely on Graham Lee’s actions being attributed to Simon Lees or Stuart Lewry in any way. I do not assess their individual actions on the basis they were joint tortfeasors. Each accused’s acts and potential liability must be assessed and considered individually and independently of the other.

Causation and negligence at common law

31. Often causation is expressed in terms of a “but for” test however “but for” is often too broad a test. It raises the possibility that remote and peripheral acts, or acts, which have a purely temporal connection and have no part to play in the determination of the legal cause, could be included in any determination: Arulthilakan v The Queen [2003] HCA 74; (2003) 78 ALJR 257 at [35] and [57].

32. In straight forward civil negligence cases it is enough to prove that the deceased or injured person would not have been in harms way absent the negligent conduct or omission of the defendant. In most cases of criminal negligence the question of causation is answered by proof of the facts which establish both, the existence of, and breach of, a duty of care.

33. Questions of causation in both civil and criminal however, becomes more problematic when it is said a superseding cause breaks the chain of causation. The Latin term “novus actus interveniens”; that is, some intervening act, is often used. The standard jury direction on criminal negligence adopted in Burns from Nydam does not address this issue.

34. Questions relating to breaking of the chain of causation in homicide were addressed by the High Court in Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378 and Burns.

“The analysis of the causation of homicide in Royall v The Queen is posited on an acceptance that the voluntary and informed act of an adult negatives causal connection. Absent intimidation, mistake or other vitiating factor, what an adult of sound mind does is not in law treated as having been caused by another.” Burns v The Queen, joint judgement at [86].

35. Criminal negligence manslaughter and criminal negligence grievous bodily harm do not however fall within what was said in Royall, as no crime or unlawful act founds liability. In Burns the joint judgement noted that it was, “…unnecessary to address the parties' submissions respecting causation on the case in criminal negligence;” at [109]. At [102], it was pointed out that an accused who had, "created or contributed to the creation of a state of affairs" which s/he knew, or ought reasonably to have known, had become life threatening” could be held liable for criminal negligence manslaughter.

36. In Moore v R [2005] NSWCCA 216;(2015) 91 NSWLR 276, both Bathurst CJ and Simpson JA relied on civil law decisions dealing with the tort of negligence when it came to determining the duty of care in criminal proceedings. Simpson J said that “the offence of manslaughter by criminal negligence is derived from the tort of negligence:” At [142]. In Burns the Chief Justice also used civil law terminology.

37. Criminal and civil proceedings have different purposes and different objectives. In civil proceedings negligence actions and the imposition of duty of care are measures of liability, which allow for assessment and award of compensation. Ultimately, criminal trials are about community protection and determining whether conduct should be subject to criminal punishment.

38. In Burns, the joint judgment, urged caution before extending the categories of criminal negligence. Their Honours said courts should be “circumspect in identifying categories of relations that give rise to a previously unrecognised legal obligation to act:” Gummow, Hayne, Crennan, Kiefel and Bell JJ at [107]. So too, Heydon J, at [128].

39. In the United Kingdom, their Court of Appeal has accepted that some civil law principles have no application in a criminal negligence trial. In Wacker v R [2002] EWCA Crim 1944; (2003) QB 1207, the Court held that public policy reasons meant that a defence to a civil negligence action would not apply in a criminal negligence trial.

40. Common law civil principles relating to causation were reviewed by the High Court in March v. Stramare (E and M.H.) Pty. Ltd. (1991) 171 CLR 506, and soon after in Bennett v. Minister of Community Welfare [1992] HCA 27; (1993) 176 CLR 408. In their joint judgment in Bennett, Mason CJ, Deane and Toohey JJ said, at [8], citations omitted,

“In the realm of negligence, causation is essentially a question of fact, to be resolved as a matter of common sense. In resolving that question, the "but for" test, applied as a negative criterion of causation, has an important role to play but it is not a comprehensive and exclusive test of causation; value judgments and policy considerations necessarily intrude. The inadequacy of the "but for" test has emerged in cases in which a superseding cause, amounting to a novus actus interveniens, has been held to break the chain of causation which would have otherwise resulted from an earlier wrongful act or omission. In those cases, though the earlier wrongful act or omission may have amounted to an essential condition of the occurrence of the ultimate harm, it was not the true cause or a true cause of that harm.

41. Gaudron J, added, “… questions of causation are questions of fact to be answered as a matter of common sense and experience.”

42. McHugh J, said,:

“Whether or not a causal connection exists between a breach of duty and any harm suffered by the person to whom the duty is owed is a question of fact …. The existence of the causal connection is to be determined in accordance with common sense notions of causation and not in accordance with any philosophical or scientific theory of causation or any modification or adaptation of such a theory for legal purposes. Moreover, the common law concept of common sense causation accepts that the chain of causation between breach and damage is broken for the purpose of attributing legal responsibility for that damage if there has been an intrusion of "a new cause which disturbs the sequence of events, something which can be described as either unreasonable or extraneous or extrinsic."”

43. In Cittadini v R: R v Cittadini [2009] NSWCCA 302, at [81] to [84], the Court noted the general complexity of the law in this area. They also noted that in Royall, Mason CJ had accepted, with approval, the statement made by Burt CJ in Campbell v The Queen (1981) WAR 286 at 290; (1980) 2 A Crim R 157 at 161, that it is:

"…enough if juries (are) told that the question of cause for them to decide is not a philosophical or scientific question, but a question to be determined by them applying their common sense to the facts as they find them, they appreciating that the purpose of the enquiry is to attribute legal responsibility in a criminal matter."

44. Campbell v The Queen involved the jury direction on causation required in a dangerous driving trial; the jury had acquitted Campbell of criminal negligence.

45. Contributory negligence is not a defence to criminal negligence manslaughter: R v Longbottom (1849) Cox’ Criminal Cases 439 at 44; R v Hennigan. Contributory negligence can, however, be taken into account when assessing whether the accused’s negligence was the substantial case of death or injury: and, when assessing the final question of whether it is appropriate to impose criminal liability for their negligence and breach of duty.

46. I review the common law authorities with some circumspection. In Adeels Palace Pty Ltd v Moubarak [2009] HCA 48, the High Court, at [43] and 44], noted that s 5D Civil Liability Act 2002, expresses the relevant questions of causation in a way that may differ from what was said to be the common law's approach to causation in March v Stramare. Section 5D(1) Civil Liability Act treats factual causation and scope of liability as separate and distinct issues. The High Court, in Adeels Palace, did not find it was necessary to examine whether or to what extent the approach to causation described in March v Stramare might lead to a conclusion about factual causation different from the conclusion that should be reached by applying s 5D(1). Although I note that in Burns, the Chief Justice, at [20] did say, “…the existence and breach of such a duty is a necessary condition of a finding of criminal negligence.”

47. Causation of death in homicide generally requires focus on both act and intent and in particular the coincidence of act and intent. Causation of death or grievous bodily harm in criminal negligence matters requires focus on the act or omissions. That determination requires considerations of matters of fact.

48. A determination about causation requires considerations of matters of both and fact law. I have a preference not to resort to terms that ask for the application of ‘common-sense,’ as that term is inherently vague and incapable of measure. Subsequent reviews of decisions said to be based on a ‘common sense’ evaluation often show a subjective value judgment was made. As McHugh J noted in Royall, “… the invocation of common sense principles of causation often provides little assistance.” The decision must be a rational one formed after evaluation of all known facts.

49. The causal link between an act or omission and the injury or damage must be sufficiently cogent to justify attributing legal responsibility to an accused. The chain of causation between breach and damage is broken for the purpose of attributing legal responsibility for that damage if there has been an intrusion of "a new cause which disturbs the sequence of events, something which can be described as either unreasonable or extraneous or extrinsic:” Bennett, per McHugh J.

General Directions

Two trials

50. As there are two accused with two allegations made against each of them - technically there are 4 separate trials and four separate verdicts are required. Giving separate consideration to each count and the evidence in relation to each accused means I am entitled to bring in verdicts of guilty on some counts and not guilty on some other counts if there is a reason in the evidence for that outcome

51. As the case has been run, and given the issues in dispute, while different verdicts could be delivered against each accused, as to the specific counts relating to each individual, the verdicts for each man should be consistent and thus the same.

Onus and Standard of Proof

52. The most important direction in every criminal trial is that prosecution has the task of proving an accused’s guilt beyond reasonable doubt. In other words, each accused is presumed to be innocent of each charge unless and until the prosecution proves him guilty beyond reasonable doubt in relation to that charge. This direction provides the foundation for many others.

53. While the prosecution do not have to prove the truth of each statement of each prosecution witness they must prove beyond reasonable doubt each legal element or element of the charge.

Circumstantial evidence

54. The prosecution case against both accused relies in part on circumstantial evidence. Circumstantial evidence is a number of different pieces of evidence from which I am invited to reach a conclusion. The law permits this legitimate mode of proof.

55. I look at the evidence as a whole: The Queenv Hillier [2007] HC 17; (2007) 228 CLR 618. I then ask: “Has the prosecution proved beyond reasonable doubt that there is no reasonable explanation or theory of the evidence consistent with the innocence of the accused?” If the prosecution has done so, the proper verdict is guilty. However, if there remains some other reasonably possible explanation of the evidence I must give an accused the benefit of the doubt and find him not guilty.

Common Knowledge

56. As a judge I am entitled to make a value judgment in respect of matters of fact adduced in evidence. Such evaluations will be based on many factors, including my life experiences as an individual in society and my training and experience as a lawyer and judge. That evaluation must be in respect of proved facts. A trial judge is not entitled to use personal experience to make findings of fact or to draw inferences unless that personal experience satisfies the prescription for the use of matters of common knowledge set out in s 144 Evidence Act 1995. The requirements in s 144(4) must be complied with to ensure a party is not unfairly prejudiced: see Coombes v Roads and Traffic Authority & Ors [2006] NSWCA 229, at [68]-[69].

Uncalled witness & evidence

57. During the course of closing submissions, reference was made to the fact that the prosecution has not called some witnesses. In particular, Pam Lees’ daughter, Tracey Hamilton, who worked in the G & S office and Dennis Lees, Graham Lees’ brother, who was meant to be driving buses for G & S on 5 May 2010. In addition, it is obvious that many documents from the G & S office and others prepared for the Coroner had gone missing. There are possible explanations for the missing documents, including that some were taken by the Office of Transport Safety Investigations (OTSI) however, I will not speculate about what a witness would have said if she or he had been called or what a missing document might have revealed.

58. I can take the fact that there has been no evidence from a witness, or derived from a document that one would expect to be available, into account when I decide whether the prosecution has proved the guilt of an accused.

Good character

59. There is evidence that both accused are men of good character. Both have worked all their lives. Both have held responsible position. Both have respect in the community. Neither has been in trouble with the law.

60. When an accused is a person of good character I must consider the improbability of his having committed the offence alleged. Further, when considering their evidence I must bear in mind that it was given by a person of good character and must take that fact into account in deciding whether I accept his evidence

61. None of this provides an accused with some kind of defence. Obviously people of previous good character can commit a crime. Good character is only one of the many factors, which I take into account in determining whether I am satisfied beyond reasonable doubt of his guilt.

The Accused’s evidence

62. At their trial both Simon Lees and Stuart Lewry gave and called evidence in their defence. They had no obligation to do so. I can use that evidence in my assessment of whether the prosecution have proved its case against them or not.

63. If, having considered that evidence, and the submissions of counsel in relation to it, I accept what an accused says, I must acquit him. However, there is no obligation on an accused to persuade me to accept the evidence he has given and called. It remains for the prosecution to satisfy me beyond reasonable doubt that I should reject it as a reasonably possible version of the facts. If that defence evidence leaves me with a reasonable doubt as to whether the prosecution has made out its case in respect of any element of the offence or any essential fact that it must prove, then I am bound to bring in a verdict of “not guilty”.

Assessing witnesses

64. A judge does not jump to conclusions based solely on how a witness gives evidence. People react differently to the undoubted stresses of giving evidence and being cross examined. Witnesses come from different backgrounds, and have different abilities, values and life experiences. There are many variables. I must take care - the manner in which a witness gives evidence should not be the only, or even the most important, factor in my decision whether to accept them or not. Judges are:

“…encouraged, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical.” Fox v Percy (2003) 214 CLR 118, at [30]-[31].

Expert Evidence

65. I have heard from, and read reports written by, a number of experts. Normally a witness can only speak about facts - what they saw, heard and said. But an expert with specialised knowledge may express an opinion within his or her particular area of expertise. Expert evidence is admitted to provide me with scientific information and opinion which is within the witness’s expertise, but which is likely to be outside the experience and knowledge of most Australians, including me. I do not ignore my own experience but caution myself that experience is not the same as specialist knowledge.

66. While technically I do not have to accept even the unchallenged evidence of an expert, the expert evidence in this case does assist in my assessment of the evidence, the facts, and the critical issues. Accordingly, I caution myself that unless I find what is agreed or uncontested, unbelievable, I would need to have a good reason to reject it — for example, that it does not fit with other facts, which I have found proved or the opinions of experts whose evidence does better fit with found facts.

67. Conflicting expert evidence always calls for careful evaluation. Here, none of the expert evidence was at the level of difficulty and sophistication beyond a judge’s capacity to assess it by reasoning from general scientific knowledge. I am entitled to prefer the evidence of one group of experts to that of the other group: Velevski v The Queen (2002) HCA 42; (2002) 76 ALJR 402, at [178] -[181].

Assessing photographic evidence

68. I need to be cautious of photographic evidence. Photographic evidence has limitations. Some photographs can be notoriously difficult to interpret - images can play tricks on perception. Much depends on; the quality of the camera used. Images may not be highly resolved, there can be poor resolution i.e. lack of sharpness and there may be other deficiencies that don’t allow for the distinguishing of details. Lens size and camera angles can lead to distortions and possible misperceptions- described in these proceedings as parallax error. For example: large cranes are a common feature in city skylines. If you look from a distance at a crane exactly side on, it is apparent that the upright body and the arm or gantry of the crane are at right angles. If however the crane moves toward you, the end of gantry closer to the observer appears to be higher than at the point it joins its body.

Technical terms

Accredited operator

69. The Passenger Transport Act 1990 provides that public passenger services (organisations that carry passengers for a fare) must have an accredited service operator. The purpose of accreditation is to attest that the accredited person is of good repute and in all other respects fit and proper to be responsible for the operation of a public passenger service, and has demonstrated the capacity to meet the government’s standards of:

1. financial viability, and

2. safety of passengers and the public, and

3. vehicle maintenance,

to the degree and in the manner required in respect of services of the kind specified in the accreditation: Exhibit 75.

70. The Passenger Transport Regulation 2007 provides that an accredited operator (if they are not a corporation) must not suffer or permit another person, other than another accredited operator to operate manage, supervise or administer the service (cl 25): Exhibit M Lees.

71. Safety Managements System Guidelines for Bus and Coach Operators were published in November 2005. They require all bus operators to nominate a top management position who will have responsibility for the implementation of, management and ongoing maintenance of the safety management system: MF 21.

Engine transmission

72. Coach TV 3574 had an Allison transmission – a four-speed automatic. In full automatic mode - the D shift - the coach will shift automatically to the appropriate gear for the travelling speed and engine output. If gear one, two, or three is selected shifting to a higher gear is inhibited. The Allison gearbox is designed to shift up as the engine speed approaches dangerous levels. A lower gear provides higher engine speed that is; more revs. This provides additional braking force.

Engine retarder

73. Engine transmission retarders are a form of auxiliary brake. A hydraulic pump is mounted on the rear of the gear box driven by the drive shaft. A restriction at the exit of the pump provides braking power. There is a potential problem with retarders as excess energy is converted to heat. Energy lost by a vehicle as it descends a hill is transformed into heat. Heat has to be dissipated somewhere and can, if not managed, for example by turning the retarder off till it cools, cook the transmission.

Engine by gear selection retardation

74. Selection of a low gear allows for resistance to the rotation of the engine, and operates to provide breaking force and slow the vehicle.

Exhaust brakes

75. Exhaust brakes or Jake Brakes are devices fitted to the engine or exhaust that create additional resistance to the movement of air through the engine- slowing it down. They can be noisy and are no longer generally used on passenger buses or coaches. TV 3574 had had its exhaust brake removed before it was sold to G & S.

Service brakes

76. Service brakes operate by depressing the brake pedal. As the pedal is depressed, compressed air is released proportionate to the pressure on the pedal. The air pressure builds up in a brake chamber. A brake chamber contains a diaphragm. That diaphragm, as it fills with air, puts pressure on the aptly named “pushrod”, which in turn pushes the rest of the brake mechanism and activates the brake. When the brake pedal is released the air pressure comes off, and a spring in the service brake pushes the diaphragm back. Two brakes operate on each set of axle and wheels.

Operation of the service Brake

77. Dr Curtis explained: Exhibit 27 page 7:

“In short, the overall operation of the service brakes is as follows:

1. The driver depresses the brake pedal,

2. Air pressure is generated by the foot valve in proportion to the amount of brake pedal depression,

3. The air pressure is fed to the brake chambers on each wheel,

4. The air pressure forces the brakes chamber’s pushrods to extend,

5. The pushrods force the slack adjusters to rotate,

6. The slack adjusters turn the S -cams,

7. The S cams force the brake shoes outward to contact the inside of the rotating brake drums,

8. Friction is generated by the brake shoes and this slows down, or stops, the rotating drums.”

Parking brake, Emergency brake or Maxi brake

78. The Maxi brake works in the reverse to the service brake- it releases, rather than applies, air to the brake chamber. The Maxi brake chamber piggybacks on the service brakes’ mechanics. That is, it uses the same drum, shoes and S-cam arrangement as the service brake. A Maxi brake has a heavy spring that is kept in place by compressed air. The spring is continually trying to apply but is held back by the compressed air. If the air is released the brake is applied.

79. Generally a lever in the driver’s cabin operates the Maxi brake, most commonly when the vehicle is parked. If however air is released, or for any reason it dissipates while the vehicle is parked or in an emergency situation, the brake will come on.

Brake drum

80. Brake drums are made of cast iron. Cast Iron has properties that do not vary significantly with temperature change. At high temperatures the drum becomes literally red hot. After it has been so heated it can have a black and blue colour.

81. The brake drum is bolted to the wheels and moves with the axle and the wheels. Inside it sit the brake shoes onto which are riveted or bolted brake pads, composed of hard wearing but ultimately finite material that wears or burns away. When the brakes are applied the pads can make contact with the inside of the drum and generate friction to slow and stop the brake drum by coming into contact with it.

82. The brake drum moves with the wheel. The shoe and its attached pad are stationary. You must adjust the brake to ensure there is a small distance between the pad and the drum. There are two drums on each axle; both sides must be evenly adjusted. You do this by moving a screw bolt on the “slack adjuster.” The screw bolt has a protective collar that need to be depressed before the bolt is adjusted. A ring spanner can both depress the collar and adjust the bolt.

Brake pads:

83. Brake pads or linings are made up of two materials - a hard wearing material and a binder, usually a phenolic resin. The binder burns away at high temperature generating a pungent smell and smoke. At very high temperatures friction is reduced and the pad does not provide the same degree of resistance as at lower temperatures. Friction is required to enable it to operate; very high temperatures thus can reduce, although not entirely eliminate brake performance.

84. Brake pads attached to the brake shoe. They are designed to match with the brake drum and expand with heat. They wear to suit the radius of warm to hot brake drums. If the brake drum becomes too hot; that is very, very hot, the brake drum will expand and the brake pad will not contact the drum evenly. If only a portion of the pad contacts the drum this will increase the temperature further, leading to further loss of braking efficiency or brake fade. The type of brakes used on TV 3574, when new, had 11.1 mm of usable brake lining above the tell-tale. The brake pads originally installed had total of 19.1 mm thickness: Exhibit 88. Some brake pad linings lining can be 17mm: Exhibit B Lewry.

85. Pads for heavy are generally riveted to the shoe. A limit step or tell-tale indicates the minimum safe wear. It is generally 0.8 mm above the rivet. If the pads are worn to the rivet, the resulting metal on metal contact will not only mean inefficient braking but the rivets will damage the brake drum.

Brake fade:

86. Energy lost by a bus or heavy vehicle when going downhill with its brakes on transforms into heat. Brake efficiency increases as it goes from cold to an optimum temperature. If the temperature is too high there is less friction therefore less brake efficiency. Brake fade occurs because of that loss of efficiency as brakes heat up above optimal levels. Brake fade should not lead to, or cause, total brake failure: Dr Curtis, Exhibit 27, at 14.

Push Rod

87. On each pushrod is a mark or tell-tale that indicates when it is close to or has reached the limit of its extension. If the push rod extends to its maximum eventually the diaphragm in the brakes’ service chamber will contact the internal parts of the drum and will not be able to go further. The brakes cannot be pushed on beyond this point- the pushrod is “stroked.”

Slack adjuster

88. The pushrod connects to a lever, known as a slack adjuster. The slack adjuster – converts linear motion of the push rod into a rotating motion- and allows brakes to be adjusted and engage when the brake pedal is depressed. When the brakes are applied the linkage should quickly cause the brake pad to fully engage with the brake drum.

89. The slack adjuster can, and should, be adjusted so that the brake pads contact evenly with the brake drum. The angle between the pushrod and the slack adjuster should not go past 90°. Beyond 90° indicates the pads are severely worn. The angle of each slack adjuster needs to be identical to ensure the brakes are in balance. The slack adjuster is attached to one end of a shaft that has at the other end an S-cam.

90. The S-cam, as the name suggests, is S-shaped. The S-cam gets wider and narrower as it rotates. At an extreme an S-cam can be forced over centre: see Exhibit 15 photos 32 and by contrast photo 24. This can happen if the brake pad is excessively worn away or disintegrates. If over centre, the brake effectively becomes useless as there is no pressure forcing the pad against the drum.

MAHA

91. A MAHA is a type of roller brake tester that checks the retardation forces on each wheel, when the brakes are applied. It can be used to detect brake imbalance and measure force and brake efficiency.

Decelerometer

92. A decelerometer is another device that can be used for measuring brake force.  They are commonly used within Authorised Inspection Stations. They are portable, and work by way of a cable with that attaches to the brake pedal. A decelerometer does not provide any guidance as to brake imbalance.

VIS

93. A VIS is a portable roller brake tester.

Cage bolts:

94. After air is released the Maxi, emergency or park brake will come on automatically. If, for whatever reason, the air cannot be reconnected, the brakes will stay on. When compressed air is not available to release service brakes they can be forced open by fitting and then winding on cage bolts. These release the brakes and allow the wheels to rotate freely. They are generally used when the vehicle is being towed.

The course of the trial

95. A jury was empanelled on 4 March 2019. They were sent away while legal discussions continued. During the adjournment one juror confided in a Sherriff that he did not understand English. The juror was examined. It soon became apparent the juror did not understand much English, particularly technical terms. He was discharged, as soon after, were the rest of the jury. The parties then asked that the matter proceed by judge alone. I determined that that course was not inappropriate: s 132(5) Criminal Procedure Act 1986; see seperatejudgment TT 2.

96. The trial commenced before me sitting as Judge alone on 6 March 2019. On 13 March 2019 I had a view of the crash scene. Evidence concluded, after 19 days, on 1 April 2019. Submissions concluded late on 3 April 2019. I reserved until today, 11 April 2019, to consider my verdict.

The Crown case

97. In short summary the Crown case against Simon Lees is that at all relevant times he had assumed and had the duties of General Manager of G & S - that position carried with it responsibilities for the maintenance and repair of the company’s fleet of buses. He knew TV 3574 had had brake problems. He knew that TV 3574 did not have a working retarder. He had received complaints from other drivers about the condition of the coach’s brakes and retarder. He knew that G & S’s mechanic did not have heavy vehicle qualification or experience. He knew that Stuart Lewry had cleared the vehicle for registration without inspecting it. He was told by a driver, Mr Batovac, that there was a problem with TV 3574’s brakes on the morning of 14 May 2010. He knew his father was rostered to drive the coach that afternoon. And, that the trip involved a journey to Kangaroo Valley. He had a duty to ensure that coach was not on the road. He breached that duty in a number of respects from the point he knew it had not been properly cleared for registration until he failed to “ground” the coach as soon as Mr Batovac had complained of the brake fault. Given his responsibilities as General Manager of a bus fleet for the safety of drivers and passengers these breaches were so gross as to justify criminal punishment.

98. In short summary the Crown case against Stuart Lewry is that as Heavy Vehicle examiner he had a statutory duty to take care to do his job properly. Although, the case opened on the basis that this included a duty to repair; over the course of the trial, it later was refined to a duty to do an inspection that would have revealed the cause of the problem that had led to the defect notice being issued.

99. Ultimately the Crown case rested on a simple proposition - Stuart Lewry should not, and could not, were he to meet his statutory obligations, clear a passenger coach of RTA noted defects, without first inspecting the coach. He did not inspect TV 3574. If he had inspected TV 3574 he would have noted that the brakes were seriously compromised. His clearance allowed TV 3574 to be registered. TV 3574 should not have been cleared of its brake defect as it was, and remained until the time of the crash, a danger to anyone in it – drivers and passenger. These breaches were so gross as to justify criminal punishment.

Prosecution Evidence

100. The Crown case commenced with witnesses who had seen the coach just before and after the crash. We also heard from those who worked at or knew about how G & S operated and Simon Lees’ role in particular. A number of expert witnesses were called.

101. Mr Mark Jackson was driving in his truck, a prime mover and empty trailer, behind TV 3574 as both were descending the Moss Vale Road. He was using his gears, and his engine brake, with occasional braking to keep his truck at a safe speed. He noticed TV 3574 speed up and slow down. He noticed the coach’s brake lights coming on for, what in his opinion as an experienced truck driver, stood out as a long period. He noted smoke from, and the smell of, burning brakes. At one point he tried to contact the coach driver by shortwave radio to warn him. Shortly after this the coach slowed down almost to a stop, “and then it just took off… It just left me:” TT 52. He then lost sight of the coach.

102. Mr Nathaniel Simpson, another driver on the Moss Vale Road was further behind TV 3574. He noticed the smell of burning brakes and then the absence of smell at a point where there was a break in the metal guard rail. He turned around as soon as he could and was the first responder. He was joined soon after by Mr Jackson, who had parked his truck at the bottom of the hill, flagged down another car and driven back up to the crash site.

103. We then heard from some of the passengers on the coach. They were all part of a group of carers for members of the Polish Australian community on an excursion organised by the Polish Australian Welfare Association. They had been picked up in Cabramatta.

104. William Sek noticed that the coach stopped for 10 minutes near the intersection of Bowral Road and the Illawarra highway. The bus driver did not leave the coach. Mr Sek could smell the brakes as they started to descend. He said to the driver, “You’ve got no brakes?” The coach got faster and hit a safety rail. The driver said “Look, shut up, I’ve got no brakes, I’m doing the best I can:” TT 71. The driver tried to hit an embankment before it went over the top of the rail. Mr Sek broke his leg.

105. Jan Wizbicki had been a coach driver in Europe for many years, before migrating to Australia. He thought the driver was having trouble with the gears. He smelt brake lining burning and seconds after he was thrown down the aisle. He suffered serious injuries.

106. Maria Wizbicki, Jan Wizbicki’s daughter, recalls the coach going down a steep hill and hearing her mother say, ‘Slow down.” There was a bump. She smelt burning tyres and heard the driver say, “There’s nothing I can do:” TT 87. The coach then went through the guard rail. After that it was chaotic.

107. Ewa Wizbicki, Jan Wizbicki’s wife, had organised the trip to Kangaroo Valley. She was sitting immediately behind the driver. She noticed the coach was driving slowly as it went south from Cabramatta. It didn’t merge as it joined the express way but stopped and waited. As the coach descended a steep windy road on a left hand turn she could smell burning: “The driver was using his brakes, very often.” The coach was going really fast for the hill. It hit a safety rail. The driver was working the wheel, hard. She said, “Why aren’t you using low gear.” He said, “Leave me alone, I’m a driver, I know what I’m doing:” TT 101. The coach then hit the bushes at speed and she was thrown around.

108. The next important group of witnesses were employees and former employees of G & S.

109. Corey Wall had been a driver and later General Manager of G & S from 2004 to 2006. He said, as General Manager he was responsible for driver’s roster, organising maintenance, and business day to day operations. To organise maintenance of buses he would check when servicing was required get a quote and make recommendations to Graham Lees. Smaller buses were serviced at the Bringelly depot; larger buses went to Mr Fillippi, a heavy vehicle mechanic. He dealt with Simon Lees every day. He thought he was a mechanic. Simon worked on smaller buses. He and Simon would go out to break downs or to change a tyre. There were no issues with the bus fleet. The Austral Starliner coach TV 3574 was not there during his time. He did not have documents or contracts for new drivers. He drove a bus too and often worked from the Armenian School not the Bringelly depot.

110. Mr Wall said Graham Lees and his wife Pam Lees dealt with the finances. Graham was Accredited Operator and the boss. They had no disagreements about repairs. As General Manager, even though he wasn’t the Accredited Operator, he assumed the responsibility to make sure G & S was compliant: TT 133.

111. Michael Siminsky was a bus driver with G & S. He first drove TV 3574 on 2 October 2010. He picked the coach up from the transmission repairer and drove it to Canberra. That day, on steep hills he was forced to rely excessively on his brakes as the retarder did not work. In addition, the transmission would not hold in lower gear. He told Pam this on his return. He thought that Simon was there too. Pam said, “Don't worry about that, we'll look after that:” TT 146.

112. On another trip, down Bulli pass, Mr Siminsky selected low gear, to comply with the signage that brakes not be used. He had to rely on his service brake. He had to pull over twice to give the brakes a chance to cool. At the completion of the descent, while on the flat, the coach rolled straight through a stop sign. On the way back he drove carefully. Once the brakes cooled they worked again.

113. He made two other trips down Bulli Pass in TV 3574 by starting in the lowest gear and controlling the speed with the service/foot brake. He left G & S because of “safety concerns” and the quality of the fleet. He thought the ultimate bosses were Graham and Pam Lees. He thought Simon was in charge of maintenance. He was told to contact Simon if there was a problem with a bus. However, Simon never said he was a mechanic. He knew Simon drove buses.

114. Mr Kirk, a former bus driver for G & S, is now deceased. His statement was tendered without objection along with some excerpts of his evidence at the Coronial Enquiry: Exhibit 84. His phone number was 0417 256 048. Records of calls to 0411857142 can be found in Exhibit 80. The general contact mobile phone number for G & S was 0411857142. There was also a landline to the office.

115. Mr Kirk said he had called Simon Lees when he was at the top of Mt Victoria and spoken to Simon Lees about going down the descent without a working retarder. He said he experienced brake fade on arrival at Jenolan Caves. Simon Lees received no calls from Kirk on his mobile number. There was a voice to text call to 142 from Kirk at 09:54. The next call from Kirk to 142 was at 14:41. Mr Kirk said he reported the problem to Graham Lees back at the depot.

116. In the Coroners Court, at p142, Mr Kirk said that “Simon’s responsible for the day to day mechanical problems of vehicles et cetera…to be completely honest I - I can’t remember who told me and I’m – I’m starting to wonder if it was just a - a pre-assumed thing…” He also said paperwork was left in vehicle.

117. Bojan Batovac started as a driver with G & S in late 2009. At G & S, he was known as “Brian”, He resigned after 14 May 2010. He was told to report mechanical issues to Simon Lees or his sister in the office. He had issues with the brakes on TV 3574 on a number of occasions. One problem was the air pressure fell below 6 psi. Another was the retarder was not functional. He told Simon Lees a few times about the issues and was told by Simon he would look into it; on one occasion he was told “the brakes are fine:” TT 233. There was one time when he refused to take TV 3574 out as the registration sticker had expired. Simon assured him that the registration had been done.

415. The prosecution case for breach of this duty requires I consider all the evidence in context. A number of specific circumstances were relied on. Each support the other. None of themselves are determinative. It is the combination the Crown say removes reasonable doubt. In summary:

1. Stuart Lewry admitted, in Mrs Pam Lees presence, that the RTA clearance was a sham.

2. TV 3574 could not have been at his Narellan workshop on 5 May 2010 as it was doing a job from early in the morning till the afternoon and if it was re-registered at 16:40 there was not enough time for it to return to Bringelly and then get to Narellan.

3. Any suggestion the coach was inspected at Bringelly should be rejected. This was neither standard nor accepted procedure. The G & S Diesel Narellan Heavy Vehicle Inspection station was set up for checks, Bringelly was not.

4. Lewry did not print and therefore did not keep his decelerometer, or any other, results.

5. Given the condition of the brakes on 14 May 2010, after the crash, they must have been in such a deteriorated state on 5 May 2010, that if he had inspected the linings he must have noted this. An, as a competent heavy vehicle inspector, he would not have cleared the defect, as worn brake linings is a cause of imbalance.

6. Stuart Lewry’s written statement was false and should be rejected and regarded as a lie that damages his credit and credibility.

7. His version of events in evidence and his claimed absence of memory contrary to his earlier written statement was also a sham and should be rejected.

8. Lewry’s clearing of the defect meant that a passenger coach with dangerously defective rear brakes was registered and allowed to operate. The passenger coach then crashed and a substantial cause was a rear brake failure. That problem would have been picked up on a clearance inspection but that inspection was not done; any reasonable person would say this was very serious indeed, given the risk to life posed. And, if proved beyond reasonable doubt the accused ought to be held criminally liable.

Determination Stuart Lewry

420. I do not, for the reason set out above accept the Crown can prove Stuart Lewry made the admission attributed to him by Mrs Pamela Lees.

421. It is important to note that Stuart Lewry had no duty to repair the coach nor did his duty extend to doing any more than clearing the defects. He was not required in order to clear the defect to do more than was required of the RTA Inspector on 3 May 2010.

422. He did not have a MAHA or VIS roller tester. He was not obliged to have one. If he followed his usual procedure he would have checked the slack adjusters and looked through the inspection holes at the brake linings. I do not accept anything would have changed in the day or so since the RTA inspection. The coach was only driven a short distance. He would have seen what Mr James saw. And Mr James did not defect the coach for anything other than the brake imbalance and the other 4 items which, it is not disputed, had been rectified by Mr Fassoularis on 3 or 4 May 2010.

423. It is not beyond the bounds of possibility that Mr Fassoularis had adjusted and tightened the brakes such that on the drive brake test usually conducted, the coach had pulled up even and without noticeable imbalance. Fassoularis had been working at G & S for some time. It had been some time since G & S regularly sent their fleet to Mr Fillipi, a licenced heavy vehicle mechanic. G & S had become reliant on Fassoularis. It is important to note that while an imbalance can accelerate brake deterioration, a substantial cause of the crash was brake failure not brake imbalance.

424. Further, the expert evidence called by the Crown was premised initially on a scenario that in order to clear an imbalance defect Stuart Lewry would have had had to check inside the brake drums to investigate the cause of the imbalance. This was not required of him, as those experts with RTA experience made clear. It may have been the prudent thing to do- but Stuart Lewry was not tasked with repair, only with clearing the imbalance. Things may have been different if he had rejected the clearance and then been asked to fix the problem.

425. While a number of experts said the brake lining deficiency and problems with slack adjusters must have been obvious on the 5 May 2010 they were not apparently obvious on the 3 May 2010 on the RTA inspection. This extrapolation from post-crash condition to retrospectively determine the brake’s condition on the 5 May 2010 ignores the fact that the coach was used during that time. We do not know what happened in what Mr Healey described in submission as the coach’s, “4,000 unexplained kilometres.”

426. The coach was used on 5 May 2010. It should not have been as it was not registered until 18:40 and the RTA defect notice restricted it’s capacity to be driven and forbade commercial use until cleared. Graham Lees generally allocated buses and drivers. The job on 5 May 2010, required a 53 passenger coach - only TV 3574 met that criterion. Mr Batovac was allocated to drive the coach. He has no memory of the trip. TV 3574 could have been allocated to another driver; as there is no evidence who drove the coach that day. The pickup from Clancy Catholic College at West Hoxton was at 07:45. The destination at the West Sydney Regional Park is about 17 minutes’ away. From Clancy College to the depot is 21 minutes. G & S Diesel is about 18-20 minute drive from the Bringelly depot. It does not take too long to clear a brake imbalance.

427. Mr Batovac was not required to drive TV 3574 to Narellan. Another driver was available that day. The coach was not required back for return pickup at Regional Park until 13:40. The coach could have been taken to Stuart Lewry at Narellan by 09:00 inspected, tested and cleared and back at the Regional Park by 13:40. After the pick up the times are tighter. But alternatively TV 3574 could have been tested on the 4 May 2010 but not signed off until the 5 May 2010.

428. There are too many alternative scenarios for it to be concluded beyond reasonable doubt the coach was not inspected by Stuart Lewry. If he did inspect it. He too, as did the RTA inspector Mr James who saw it on 3 May 2010, may not have noted the brakes were deteriorated. He was not obliged to take the brakes components apart if the bus otherwise passed. He was not required to sue equipment that was not generally available to him. He was only required to clear not repair the part defected by the RTA, here, relevantly, the rear wheel imbalance.

429. I cannot presume the brakes were in the same state of imbalance on 5 May 2010 that they were in when they failed the MAHA test on 3 May 2010, given the evidence that Mr Fassoularis worked on them. By accident or design Mr Fassoularis may have got them back into balance.

430. Stuart Lewry had a duty of care but it cannot be proved to the high standard required that he breached it.

Simon Lees

431. So far as Simon Lees is concerned the prosecution’s obligation to prove a duty rested on their establishing:

1. 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.

2. A reasonable person in that, 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.

3. He 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.

4. 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

5. Simon Lees played a causative part in the sequence of events leading to the coach 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 coach, and that he was aware of this and the danger that posed given the retarder was not working, and

6. That he was complicit in Mr Lewry’s issue of an illicit compliance notice. 

432. Mr Crown relied on the evidence noted and summarised above, submitting that when taken as a whole Simon had assumed responsibility for a significant part of the running of G & s and that while his father was the Accredited Operator, the scheme of the regulatory regime was that others could be given responsibility, particularly for maintenance and that that job was given and accepted by Simon Lees.

433. The breach alleged is that Simon Lees was aware, because of what he had been told by bus drivers; Kirk, Siminsky, Batovac and True, that the brakes were a problem TV 3574. He was also aware of the danger that was posed by the retarder not working.

434. It is submitted a reasonably competent manager in his position with his capacity and knowing what he knew would have:

1. Had a scheme in place to ensure that the brakes on TV 3574 were monitored.

2. Had the brakes repaired well before they got to the condition they were in on the 5 May and 14 May 2010.

3. Not allowed a light vehicle mechanic to work on the brakes of a heavy vehicle such as the coach.

4. Had the retarder repaired or reconnected.

5. Not allowed the coach to be used at all or used on a steep hill without a working retarder

6. Not allowed the coach to be reregistered without an inspection and proper clearance by Stuart Lewry.

Determination Simon Lees

435. There is evidence that Simon Lees was aware there were problems with TV 3574. He argued with his father about the retarder; however the evidence inclines to the proposition that he was asking his father to fix the problem and the argument got heated because his father did not approve it because of the expense.

436. I am prepared to find he received other complaints about the brakes such as drop in air pressure. While there was evidence that complaints of brake fade were made by Kirk and Siminsky, these complaints were made to Graham and or Pam Lees, or both, in person and in writing; although those records which would have been left in the bus or delivered to the office, are now lost. While I am prepared to accept that Simon Lees was aware of complaints; the focus of those complaints made to him was on the brake problems exacerbated by the non-working retarder – for without the retarder, brake or overuse may not have occurred. The phone records do not support, to any significant degree, the evidence of Mr Kirk or Mr Batovac that they complained first to Simon Lees.

437. Further, the evidence does not establish Simon’s role in G& S was that of a manager with responsibility and control over maintenance and repair of the fleet. He had not been given that role- no document supports it. There is no evidence he received any direction or instruction in responsibilities that were required to provide such support to the Accredited Manager.

438. Section 9D Passenger Transport Act 1990, requires safety management systems be documented but there is no evidence Simon Lees was given that task by his father. The relevant handbook contains model job descriptions. Although Pam Lees says a document was given to Simon, none was produced for any worker at G & S: Exhibit 40. It is interesting to note that the model job descriptions provide that the mechanic has responsibility for investigation and repair of vehicle as noted in driver’s vehicle defect books. G & S never had vehicle defect books.

439. The responsibility to ensure these things were done rested on the Accredited Manager. There is no evidence Graham Lees ever told Simon of the regulatory requirements; to the contrary Graham Lees was still in charge and still in control of finances, repairs allocation and rostering at the time of his death.

440. Knowledge of a problem and failure to act does not create a duty of care. “Criminal liability does not fasten on the omission to act, save in the case of an omission to do something that a person is under a legal obligation to do” Burns, at [97]. The prosecution has not established Simon Lees had the duty of care ascribed to him.

441. Further, if the prosecution cannot, for the reason set out above, establish that Stuart Lewry was involved in a sham clearance of TV 3574 for registration they cannot prove beyond reasonable doubt Simon Lees was a party to a sham transaction. The prosecution cannot establish anything more than the possibility Ms True overheard Simon talking to “Stuart” about having a coach cleared. There is nothing sinister in that call. The available mobile phone records show no call and also establish that Simon Lees was not at Bringelly on the 5 May.

442. Accordingly, the prosecution have failed to prove beyond reasonable doubt that Simon Lees owed a duty of care to his father Graham or Jan Wizbicki. The prosecution cannot establish that, whatever his knowledge about TV 3574, he had responsibility to take steps to avert or lessen the risk of the crash on 14 May 2010.

443. If the taxonomy set out in Moore is adopted the prosecution would also have to have established, before a manslaughter conviction could be recorded that Graham Lees was, “vulnerable and ignorant” of any problems with the coach. Although strictly not necessary given my earlier findings that leads to a consideration of the defence submissions that there was of break in the chain of causation

A break in the chain of causation

444. The prosecution rely on Mr Batovac as a witness of truth. There was no reason to believe he was not doing his best but his memory of what jobs he did driving TV 3574 was sparse. This is understandable. A bus driver could not remember every trip, one would tend to merge with another. He was adamant he spoke to Simon Lees when TV 3574 rolled when stopped and rolled despite the Maxi/Park brake being on. And, that he was instructed by Simon Lees to place chocks under coach wheels. This could only have occurred at the destination, a beach, presumably Bondi. The phone call records do not support this assertion.

445. Mr Batovac did however speak to Simon later in the day when the coach would have been on its way back to the depot. Call and work records establish Simon was not at the depot. Graham and Pam Lees were. Mr Batovac said he spoke to both of them and told them the brakes were not working. He was told by Graham, “I know what I’m doing- don’t worry.” He said his work sheet was left in the office. That work sheet has not been found. The Worksheets in Exhibit 6 appear to be reproductions. Mr Batovac said his handwriting is not on them.

446. Pam Lees says she was not there. I prefer the evidence of Mr Batovac. Accordingly, it is apparent Graham Lees was aware of the brake problem just before he drove to the Kangaroo Valley. Graham Less was an experienced bus driver. He was aware of the defect notice. He was aware of Mr Fassoularis’s lack of formal qualifications. He directed Mr Fassoularis to do the repairs. He allocated buses. He had driven TV 3574 to Canberra and back on 2 May 2010 and 11 May 2010. He had not had the retarder reconnected. He was aware of the Allison’s transmission feature that allowed for gears to move up if it was overworked.

447. On 14 May 2010 he, more than anyone else, was aware of the condition of the coach’s braking capacity yet he chose to take TV 3574 on the job. There is no evidence about whether an alternative bus was or was not available. He stopped before the descent for 10 minutes or so. The only assumption I can make is that he did so to allow the service brakes to cool as they had been working hard. He was aware of the Moss Vale Road and its steepness and its sharp hairpin bends. He was aware of the consequences of calling in a break down and calling out a replacement. He was aware of the financial situation of G & S. Graham Lees had opportunities to pull over on the descent. He chose to drive down that descent and continue that descent. Whatever stress he was under Graham Lees was of sound mind. He knew what he was doing.

448. In criminal negligence matters the contributory negligence of another provides no defence. In criminal negligence matters public policy issues are important. Each person who contributes to a serious and criminal wrong should be held responsible and not avoid responsibility just because others were involved or because they are dead and cannot defend themselves. There can be a number of substantial causes of an event and each of those causes can involve criminal negligence.

449. The causation principles relating to voluntary and informed decisions of another were developed for all other forms of homicide not criminal negligence, but they are applicable here. Similarly, common law civil principles do not rely simply on a sequence of “but for” scenarios leading to a result but do allow for some acts to be of such significance as to break the chain of causation.

450. In criminal negligence matters, as with all serious crime, the prosecution bear the burden of proof throughout. All relevant elements of a charge must be proved beyond reasonable doubt. The prosecution cannot here exclude the possibility that Graham Lees was more than another negligent party to the cause of the crash. Rather, there remains the possibility that Graham Lees was aware of all the relevant facts and with that awareness made a voluntary and informed decision to take TV 3574 down the Moss Vale Road; such a steep decline that a brake failure and crash were inevitable, despite his skill as a driver.

451. Whatever faults may be attributable to an accused there has been an intrusion of a new cause. The prosecution cannot exclude the fact that the deceased’s own actions, in fact and law, broke the chain of causation between any breach of duty by an accused and the death of Graham Lees and the injury to Mr Wizbicki.

452. If the chain was broken by Graham Lees’ actions it was broken not just in respect of any other persons responsibility for his death but also the unknowing party, Mr Wizbicki.

Verdict.

Simon Lees

453. On Count 1 the unlawful killing of Graham Lees – Not Guilty.

454. On Count 2 causing grievous bodily harm to Jan Wizbicki by negligent act – Not Guilty.

Stuart Lewry

455. On Count 1 the unlawful killing of Graham Lees – Not Guilty.

456. On Count 2 causing grievous bodily harm to Jan Wizbicki by negligent act – Not Guilty.

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Amendments

12 April 2019 - Typographical errors in [31] [153] [425] [426] [432]

20 September 2019 - Amended to correct typographical and grammar mistakes.

Decision last updated: 20 September 2019