R v Simon Lees

Catchwords

(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 216R 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

Judgment (68 paragraphs)

[1]

Introduction

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.
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.
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.
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.
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.
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.
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.
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.

[2]

A Criminal trial by Judge alone

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.
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].
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.

[3]

Necessary elements

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].
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].
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.

[4]

A duty of care

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].
If the accused did owe the deceased or person injured a duty of care, five other questions follow: 1. What was the content of the duty? 2. Was there a breach of the duty? 3. What in precise terms was the breach of the duty? 4. Was the death of the deceased causally connected to the breach of the duty? And finally, given these are criminal proceedings: 1. Was the breach of the duty of such great proportions that the accused ought to be held criminally liable? See Justins v R [2010] NSWCCA 242; (2010) 79 NSWLR 544, at [226], per Simpson J.
The question of law about the existence of a duty of care must be addressed prospectively. 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.

[5]

Assessing individual liability

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].
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.
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.
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.
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."

[6]

Causation and negligence at common law

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].
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.
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.
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].
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.
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.

[7]

Two trials

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
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.

[8]

Onus and Standard of Proof

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.
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.

[9]

Circumstantial evidence

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.
I look at the evidence as a whole: The Queen v 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.

[10]

Common Knowledge

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].

[11]

Uncalled witness & evidence

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.
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.

[12]

Good character

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.
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
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.

[13]

The Accused's evidence

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.
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".

[14]

Assessing witnesses

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].

[15]

Expert Evidence

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.
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.
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].

[16]

Assessing photographic evidence

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.

[17]

Accredited operator

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.
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.
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.

[18]

Engine transmission

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.

[19]

Engine retarder

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.

[20]

Engine by gear selection retardation

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

[21]

Exhaust brakes

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.

[22]

Service brakes

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.

[23]

Operation of the service Brake

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."

[24]

Parking brake, Emergency brake or Maxi brake

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.
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.

[25]

Brake drum

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.
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.
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.

[26]

Brake pads:

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.
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.
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.

[27]

Brake fade:

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.

[28]

Push Rod

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."

[29]

Slack adjuster

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.
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.
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.

[30]

MAHA

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.

[31]

Decelerometer

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.

[32]

Cage bolts:

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.

[33]

The course of the trial

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.
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.

[34]

The Crown case

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.
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.
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.

[35]

Prosecution Evidence

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.
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.
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.
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.
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.
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.

[36]

Expert evidence

Expert evidence is opinion evidence admitted as an exception to the general rule that opinions are not evidence. That exclusionary rule is referred to in the Evidence Act 1995 as "the opinion rule". The Evidence Act provides a statutory context for the rule. Section 76(1) Evidence Act provides that "[e]vidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed". Section 79(1) sets out a two-part rule in succinct terms: "If a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge."
There must be a proper identification of the fact in issue that the party tendering the evidence asserts the opinion proves or assists in proving: Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21. It is critical to ask the question; why is the expert opinion evidence relevant?
Section 79 has to be applied according to its terms; it is a rule as to admissibility. Just because an opinion is based on experience does not mean s79 is complied with. A purported expert witness must report or expose in evidence their reasoning process: Dasreef at [30] - [43]; Ocean Maritime Mutual Insurance Association (Europe) OV v Jetopay Pty Ltd [2000] FCA 1463; Honeysett v The Queen [2014] HCA 29; (2014) 253 CLR 122.
The Macquarie Dictionary defines knowledge as "acquaintance with facts, truths or principles as from study or investigation;" Honeysett v The Queen at [23].

[37]

Peter Dobson Exhibit 34

Mr Dobson was on the scene 4 to 5 hours after the crash. He found that the front brakes were still hot to touch and blue from heat. There was a strong burning smell coming from them. He contrasted these findings with his observations of the rear brakes, which, "were at a lower temperature," similar to the temperature of the rear axle and axle housing.
The Maxi break was applied but all air had been depleted. As TV 3574 was being recovered by a specialist tow vehicle he saw that that the rear brakes, when off the ground, did not offer any rolling resistance.
He checked the pushrods and saw that they moved more than 80% of travel and had travelled over centre.
Mr Dobson again inspected TV 3574 at the Albion Park Police holding yard. He found the front brake booster slack adjusters were operating and that that the front brake drums showed signs of excessive heating. There was sufficient lining material on the front brake shoes when he inspected them through an inspection hole. By contrast when viewed through the inspection hole the rear linings showed "excessive wear." In addition, the rear booster slack adjusters were 80% over travel.
He noted the road grime and the absence of tool marks on the slack adjusters.
He said the MAHA report had a low reading on the left rear. This indicated an imbalance. This could be created by worn brake units creating excessive brake shoe travel.
In his opinion there was no basis for a competent mechanic to form an opinion that a serviceable level of lining material remained on the brake shoe between time of issue of the defect notice and time of the collision event.

[38]

Graham Lawrie Exhibit 20

Mr Lawrie first saw TV3574 at the Albion Park holding yard. On the 30 September 2010 he inspected the coach at the Zetland holding yard.
He found there were no steering, accelerator, cabling or tyre problems that could have contributed to the crash. He made a visual inspection of the brake linings through the inspection hole in backing plate. He found that the level of lining on the front was okay but the rear was of insufficient thickness. He noted that the front brakes could lock the wheels but that while the rear brakes operated they did not lock the wheels.
He found that the rear brake chambers had been stroked, that is, extended to the maximum travel; and also that they had locked in this extended position.
He noted that there were no seat belts for the driver or passenger but that this bus, because of its age, had been Australian Design Rules (ADR) exempt from having seat belts.

[39]

John Lambert Exhibit 13

In addition to his qualifications as a mechanical engineer, he has some expertise in bus safety and efficiency studies and the regulations for bus companies.
He noted that the Moss Vale Rd had a steep down slope of 5.5 km with a gradient between 10 and 14%. In the 200 metres before from the crash site he estimated the gradient as 14%. Most Freeways, he said, had maximum gradients of 6%: the Mount Ousley descent, for example, is 10% and 15% in parts.
In order to slow heavy vehicle on a steep descent a driver could use; engine retardation, that is, appropriate gear selection; brakes and hydraulic retarders. Ideally, he said, engine retardation should limit the speed without the need for brakes. Brakes should be reserved for stopping only, not slowing. A retarder reduces the amount of work that has to be done by the service brakes.
In his opinion having reviewed all the material available to him; G & S, as a company, was deficient in a number of areas. In particular the company did not treat brake faults seriously. Brakes on vehicles should be given high priority and brake maintenance requires expertise.
He said that the brake pads minimum thickness should be 6.4 mm. The expected wear over 4,000 km would be 0.6 mm. If on 14 March 2010 there was no lining, there would have been insufficient lining on 5 May 2010.
Mr Lambert noted the retarder wiring had been disconnected both at the rear of the transmission and at the instrument panel in the driver's cabin.
Air was reconnected to the coach and a brake roller VIS test carried out. On the rear there was excessive roller resistance and brake drag of over 1 Kilo Newton but insufficient brake force.
He concluded that at the time of the clearance by Mr Lewry, it would have been obvious that the rear brakes were overdue for repair and had worn beyond safe working limits and that the brake pads were wearing unevenly. In his opinion at the time of inspection, one S cam was over centre; that is, the brake shoe toe was on top of the S cam forcing the brake shoes apart to their maximum.
As to the cause of the brakes deterioration; he said, that the brake shoes would have been in contact with the brake drum for some considerable time. To prevent this occurring the slack adjusters needed to have been correctly adjusted. He concluded the braking system was defective and required major repair

[40]

Dr R Casey

Dr R Casey said that the coach was going too fast because it had lost its brakes. The real question is why did it lose its brakes? His report made three main points: 1. The retarder absence was critical and the disconnection appears deliberate with a possible motive being the prevention of transmission damage. 2. There must have been brake fade on the front brake. This was not a mechanical defect rather the brakes faded because the front brakes were doing most of the braking. 3. The rear brakes were ineffective. They were not applying force. They had stopped working sometime during the previous 4,000 km. After the collision the brake shoes were in such poor condition that the S-cams had rolled over centre and could not return to their rest positions. If the rear brakes were not working prior to leaving the depot on 14 May 2010, they were not working during journey.
In his opinion you would expect 1 mm of brake lining wear over 1,000 km
He said that lining deficiency would have been obvious on inspection.
In his supplementary report Dr Casey disagreed with Ms Gaffney. He discounts her tyre marks thesis.
In his opinion the brakes were not working prior to the collision - there was no evidence they were offering resistance. This fact is indicated by the post-accident testing. The fact that they offered some resistance during the later VIS test indicates that at the time of the crash they were suffering brake fade on what little brake capacity was left.

[41]

Tia Gaffney mechanical engineer: Exhibit Lewry A

In Ms Gaffney's opinion the driver of coach TV 3574 should have descended the slope in low is gear and at no more than 20 km/h. If the Graham Lees had selected low gear at the beginning he could have gone down the Moss Vale Road without use of his brakes.
She noted, and documented from the available photographs, tyre skid marks consistent with the dual rear tyres of the coach. If those marks were left by coach TV 3574 the rear brakes were still operating just prior to the crash.
In her opinion there had been significant failures in the investigation and documentation, of the crash site. In particular, proper measurements and analysis of the skid marks were not made. In her opinion unless those tyre marks can be excluded as coming from TV 3574 they indicate the path of the coach just prior to the crash.
She noted the coach was found in second gear. She said the gear selected by the driver has considerable bearing on the amount of work required of the brakes.
In her opinion the post-accident VIS test showed the brakes were still able to meet the NHVIS deceleration criteria of 1.5 m/s/s with an overall "pass" result: Exhibit 20.
She was critical of Mr Dobson's assessment of the heat of the brakes at the scene, as his subjective assessment cannot be tested. No temperature measurements were taken. She pointed to evidence of heat stress on the rear brakes.
She noted thermal damage to the rear right brake drum. This could have occurred coming down the hill. She said the brakes had become so hot the roller retainer bolt lock nut pin had melted. This indicated thermal overload.
She has no information on the rate of brake wear. She said the OTSI investigation indicated that the new pads are required between 60,000 and 100,000 kilometres.
Ms Gaffney concluded that there would have been at least 0 .8 mm on the brake linings above the tell-tale when inspected. In her opinion prior to locking of the brakes there would have been some brake linings left but they would have been near the minimum level.
Her opinion is that the cause of the accident was excessive speed, as a result of poor gear selection and the fact there was no operating retarder. Unless the coach was going too fast to start with it should have been able to descend the hill without its brakes.

[42]

Chronology Evidence

Documents tendered allow some reconstruction of events between 2 May and 14 May 2010. They set out the times when events are said to happen or have happened. Such records, while generally accurate, suffer a number of deficiencies. Not the least being an absence of evidence whether they have been adjusted for Eastern Standard Time of Daylight Saving Time. There are also what to the lay person appear to be computer "glitches" - an obvious example is Exhibit 63, where the dates of calls that all undoubtedly were made in 2010 are recorded as having been made between 2011 and 2024!
To understand the evidence it is important to note that:

The main contact mobile for G & S was 0411 857 142- both Graham and Simon Lees would use this phone. Graham did not take 142 to Nabiac but left it in the office.
Simon Lees had a work phone with the number 0411 461 787.
Mr Batovac's was 0416…027

2 May 2010: Mr Graham Lees takes TV 3574 to Canberra pickup 6:15 leaving Canberra at 16:00: Exhibit 43.
3 May 2010: TV 3574 was booked into RTA Campbelltown for service at 11:00: G & S diary - Exhibit H Lees. TV 3574's registration ran out on the 5 May: Exhibit 73.
The RTA defect notice was issued by Ian James at 11:00: Exhibit 32. The form presumably was started at that time. The MAHA test was completed at 11:34: Exhibit 30.
Simon Lees' phone records show that he was not at Bringelly: Exhibit 64.
Graham Lees was available to take the coach to the RTA. Mr Fassoularis says Graham Lees at the Bringelly workshop and Graham Lees tasked him with repairing the defects.
4 May 2010: At 10:57 Graham Lees' mobile telephone 610 is near Nabiac: Exhibit 59. He presumably went to Nabiac some time on 3 May or very early on 4 May - but there are no toll records. Simon Lees' mobile phone 787 is recorded as being in the Bringelly area most of the day. He had no scheduled driving jobs: Exhibit 64. G & S Diesel is about 18-20 minute drive from the Bringelly depot: Exhibit 68.
5 May 2010: The G & S work diary indicate a booking for 53 seater bus from Clancy Catholic College at West Hoxton, presumably TV 3574, with a pickup at 07:45; return pickup at West Sydney Regional Park at 13:40. "Brian" (Mr Batovac) is nominated as the driver: Exhibit 6 and Exhibit H Lees. The Regional Park is about 17 minutes' drive from Clancy College. From Clancy college to the depot is 21 minutes: Exhibit 67. TV 3574 could have been back at the depot at 15:40 depending on the accuracy of the pickup time. Mr Batovac has no memory of this trip.

[43]

Application for directed verdicts

At the conclusion of the Crown evidence there was defence application for directed verdicts. The applications were refused: see separate judgement: R v Lees; R v Lewry [2019] NSWDC 117

[44]

The Defence cases

Each accused gave evidence. Tia Gaffney, an expert mechanical engineer, was called by Stuart Lewry. She had given evidence, by leave, before the close of the prosecution case.
Stuart Lewry called his business partner Greg Hall. Mr Hall attested to Stuart Lewry's good character and skill as a heavy vehicle mechanic and examiner. Mr Hall has driven the Moss Vale Road on many occasions. He would not have taken coach TV 3574 down that hill without a working retarder.
He is a Heavy Vehicle Inspector. He always clears vehicles at his workshop except when he was repairing and inspecting vehicles which had been grounded at an inspection station such as Mount White.
He noted if the maxi or emergency brake comes on no brake light will show because the brake lights are connected to the brake pedal. The Maxi brake has its own button or lever. In his opinion the duty of a Heavy Vehicle Inspector was to inspect the vehicle for compliance and clear the defect, not repair unless asked to do so. He told me that a brake imbalance was a very common defect: He would do two a day: TT 1491. He said, "The lining break up is caused by heat, nothing else:" TT 1493
The only way he can monitor brake wear is to have a service program and every service put down a brake percentage: TT 1498. You can get two identical vehicles, and one of the brakes will wear out twice as fast as the other: TT 1501.
If TV 3574 had no retarder, you would go and get it fixed. He said, no one would deliberately turn a retarder off‑‑ "Why would anyone do that?" TT 1499.
He said he performed most inspections at his workshop: TT 1503.

[45]

Stuart Lewry's evidence

Stuart Lewry worked in partnership with Mr Greg Hall. His Company G & S Diesel was unrelated to G&S Minibuses. At times did contract work for G& S minibuses. That work involved signing off defects for Graham Lees' vehicles. He did not do any repair work for him. He never had any issues with Michael Fassoularis and his mechanical repairs. He would go to Bringelly to get parts for his other customers off their old buses which were out the back. He said he would check and sign defects off "up there:" TT 1410
He was shown the RTA Defect Notice: Exhibit 32. He said, "I know how to - I know about the repairs. I know that's my signature. I don't really remember much about this defect or the rego. I'd get a thousand phone calls a day about defects, repairs. I don't know how I'm expected to remember something like this, ten years ago:" TT 1411.
He explained that he had hand written and signed the statement in December 2010: Exhibit 78. He faxed it back to Senior Constable Hamilton. That statement purports to be his recollection of Simon Lees bringing the coach to him on 5 May 2010 and what he did before signing the RTA Defect Notice as cleared.
Senior Constable Hamilton had first visited him in June 2010 looking for documents and giving him a copy of Exhibit 32. He visited again to show him photographs. Senior Constable Hamilton asked to make a statement and faxed the blank form to him. He said Senior Constable Hamilton told him to say what he would have done.
Stuart Lewry told me; "Probably the procedural part of it is true and correct, that's what I'd do for an imbalance, but some of the other stuff, like I think it says Simon brought the bus, I wasn't actually sure. It could have been Simon or Graham or someone else. I don't ‑ I can't ‑ I couldn't tell you. I couldn't tell you back then. I couldn't tell you now:" TT 1413.
When taken to Mrs Pamela Lees allegations, he said did go to Bringelly but it was after Senior Constable Hamilton had visited his workshop. He did not go inside the house. He only went to the G & S workshop: TT 1414. He does not know Warren Beech: TT 1415.
He told me he would, "... never sign a defect off without inspecting the bus, that is just ridiculous, like, it is a $30 defect. It is just ‑ like, yeah, I have been doing it for too long just to do something like that:" TT 1416.

[46]

Simon Lees' evidence

Simon Lees gave evidence. He told me of his school and work history with Mr Fillipi, how he started his light vehicle mechanic apprenticeship, ending the TAFE course without qualifying. He started working in his father's business around about October 2005. At time he would go with Mr Corey Wall on call outs to flat tyres or attend a breakdown.
He had a conversation with his father about doing the breakdowns and the sort of stuff that Corey was doing; filling in and driving buses for clubs if someone called in sick. He said his Dad wanted to bring Tracey Hamilton, Pam's daughter, into the office. She was going to do the paperwork side of things that Corey was doing, and that he'd just basically do the breakdowns.
He said he was never given a job description or documents setting out his duties. He had no authority to spend money as he saw fit. Everything had to be confirmed by his father.
Drivers did call him about breakdowns and mechanical problems. If it was something simple, or a flat tyre, he would go out and change or fix it. If it was anything else he would pass the message on to his Dad and Michael: TT 1514. He would tell drivers to put problems on the paperwork, on their defect sheet.
He said he did not understand, or know, what the roles and responsibilities of an accredited operator were: TT 1515.
His Dad would go to Nabiac but it would just depend on what work was going.
He was not involved in the selection or interview process of Mr Fassoularis: TT1517.
He only drove TV 3574 on rare occasions: TT 1522.
He discussed the retarder not functioning with his your father every time someone mentioned it to me. There were a couple of heated arguments: TT 1523.
Mr Siminsky never told him anything about a problem with TV 3574's brakes on the Jenolan Caves trip: TT 1524.
He did learn that TV 3574 had been defected but he did not ask Mr Fassoularis to remedy the defects. He could possibly have assisted him with a road test; as he assisted him with many road tests: TT 1555
Mr Kirk never rang him and had a conversation regarding the retarder as he got towards Victoria Pass. He had no call on his number 787 on 10 October 2009. He wouldn't have had the 142 phone as it was a Saturday and his father would have been working and had that phone.

[47]

Consideration Expert Evidence

Each expert gave evidence and was cross-examined. None retreated from the positions set out in their reports. Each was able to explain why they reached the conclusions they did and importantly the material they relied on to reach those conclusions. There was some agreement on basic matters while other conclusions reflected minor difference in interpretation.
Ms Gaffney's initial criticism that the scene and photographs had not been documented sufficiently, were borne out. Without such measurements and calibrated photographs and plans, objective and scientific evaluations and comparisons could be not made.
It was also apparent that some experts had been qualified for civil proceedings and were addressing different issues than those that arise in a criminal trial. I, however, have to determine the matter based on what evidence is available to me and take the opinions offered and evaluate them against all the evidence admitted at trial.
I cannot accept Ms Gaffney's conclusions that the rear brakes were working just before the coach left the roadway. While I acknowledge the paucity of evidence I can only act on what is available to me. Whatever an expert said about the skid marks noted on the roadway, the evidence of every passenger and Mr Jackson, who was driving behind the coach, was that the coach had no braking power well before the last corner.
I cannot accept the supposition implied in the document prepared by Stuart Lees that the rear brakes were replaced in 2009: Exhibit 70. It does not accord with any other evidence.
Nor can I accept the evidence of experts who sought to extrapolate from what they saw post-crash to conclude that the rear brakes or a rear brake were non-functional on 5 May 2010. The MAHA test indicates both rear brakes had sufficient breaking capacity power to meet regulatory requirements.
I accept that Mr James following his usual procedure inspected the brake linings through the inspection holes in the backing plates. Authorised Inspection Station - Heavy Vehicle Rules, Rule 501, requires RTA examiners to check the thickness of lining pads: Exhibit 11. Mr James would have defected the brake linings if they were worn past the tell-tales on the pads. That does not mean however that the linings were in good condition.
To the contrary, the rear brakes must have been in poor condition on both 3 May and 5 May 2010 to deteriorate to the state they were in post-crash; when with the maxi brake apparently locked on and the S-Cams at full extent, they could still be rotated by hand at the site and later at the holding yard at Albion Park.

[48]

Grime analysis

Section 80(b) Evidence Act 1995, allows opinion evidence if the matter is of common knowledge. Another exception can be found in s79. A person with specialised knowledge based on their training, study or experience can give opinion evidence within their field of expertise that is wholly or substantially based on that knowledge.
A number of heavy vehicle experts and/or mechanical engineers were asked to and offered an opinion, without objection, on the appearance of the adjustment bolt and locking collar ring on TV 3574's both rear slack adjusters.
It is the Mr Crown's contention that such was the build-up of grime on these bolts the conclusion could be drawn positively that the brakes had not been adjusted on or after 3 May 2010. If there are no marks Mr Fassoularis did not adjust the slack adjusters on the rear brakes and if the brakes had not been adjusted the 41% brake imbalance defect would not have been corrected and the coach should not have been cleared by Mr Lewry.
The defence point to what they say are obvious spanner marks shown in photographs of the bolts in Exhibits 15, 16 and 17.
In their reports and evidence a number of experts referred to the grime on the slack adjusters or its absence.
Mr Dobson said if there had been an adjustment there would have been clear evidence of the disturbance of road grime: Exhibit 34 paragraph 31 & 32
Mr Laurie said the slack adjuster had not been adjusted recently given the build-up of dirt road grime: Exhibit 20, paragraph 27.
Mr Lewry said that given 3994 km of travel there may have been a "new" build-up of grime: Exhibit 13.
Dr Casey said there were no spanner marks on the bolt given there was too thick a layer of debris shown in the photographs: Exhibit 29 supplementary report at 5:21.
Ms Gaffney noted that any opinion based on a single photograph lacks scientific rigour and that no objectively verifiable measurements were taken. She could not exclude the existence of spanner marks in the photographs and she said, 4,000 km of travel and lengthy period of storage in a yard could account for the accumulation of grime: Exhibit Lewry A, pages 37 & 39.
Mr Lewry, in evidence demonstrated how a ring spanner, which has 12 internal edges, was used on a slack adjuster. He pointed to what he said were marks in the grime shown in photograph, Exhibit 17, as being indicative of what one would expect when a ring spanner was used on a six sided bolt.

[49]

Findings Expert Evidence

Those findings having been made the following does not seem to be in serious dispute: 1. TV 3574 was a well maintained coach with good service records when sold by Mr Golding to G & S in 2009. 2. There are no maintenance records available since the purchase by G & S. They may not have existed. They may be with OTSI. They may have been lost after the 5 May. I cannot speculate. 3. The front brakes had not worn as much as the rear by 14 May 2010. Front brakes take more of the load than rear. It may be they pads were of different quality or that poor adjustment of the rear brakes led to more rapid deterioration. Most reasons given for the disparity were, however, speculative. 4. A coach requires working service and maxi brakes. Additional or auxiliary braking power can be provided by a retarder and appropriate gear selection. TV 3574's retarder was worked on along with the reconditioning of the transmission in October 2009: Exhibit 42. The retarder was not working during the trip to Canberra on 3 October immediately after it was picked by Mr Siminsky from the transmission repairer, Autoshift Diesel. Without an operating retarder there was a risk that excessive work would be required of the service brakes during steep descents. 5. On steep descents TV 3574 should have been able to descend without the use of brakes except for emergency stops or slowing. The Alison transmission was designed to protect itself from damage by upshifting to the next higher range if engine governed speed is exceeded in the lower range. This would reduce braking and could cause a loss of control. The remedy suggested by the manufacturer was to apply the vehicle brakes or other retarding device to prevent exceeding engine governed speed with the lower range selected: Exhibit 52 page 9. The transmission was not designed to go into neutral as Mr Lambert suggested: TT 552. 6. Experienced drivers should not have taken TV 3574 down a steep hill without a working retarder. It had previously experienced brake fade on Mount Victoria and Bulli Pass. 7. After the crash the gear lever in TV 3574 was found fully pulled back but the selected gear was showing second. The transmission was not examined. If a correct gear is not selected before the descent reliance will be placed on the service brakes and brake fade is more likely. 8. If brakes are over used on a steep descent they can overheat and lose braking efficiency - brake fade. If the rear brakes are experiencing fade the maxi or emergency brake will not operate efficiently as it uses the same brake mechanism as the service brake. 9. Four to five hours after the crash the front brakes were hotter than the rear, indicating more work being down by, and greater friction on, the front brakes. 10. The front brakes although they had done significant work in the descent of the Moss Vale Road were operational, with sufficient brake lining, after the collision, although out of balance: VIS exhibit 21. 11. The rear brakes had deteriorated and showed signs of excessive overheating. 12. If the brake linings are overheated they will deteriorate. But even in a deteriorated state there still should be some contact between the remaining lining or rivets and the brake drum, producing friction which offers some brake resistance. If the brakes overheated friction would be reduced. 13. There was minimal rear brake resistance after the crash at the scene and at Albion Park. 14. There was some rear brake resistance on the VIS but it was minimal. The rear brakes were in balance on 6 October 2014 when the VIS test was done but the readings were at minimal levels. This low reading could account for the readings for both brakes being equal. 15. If Mr Batovac is correct TV3574 did not have operating rear service or park brake on the Bondi trip. This indicates that even with S-Cams locked open there was no work being done by them before the trip to Kangaroo Valley. 16. If Mr Batovac is not correct, or not accepted, the rear brakes' deterioration was complete some time during the trip to Kangaroo Valley. 17. On 14 May 2010, the rear brakes of TV 3574 were not operational. They had worn beyond operational safety limits. If the brakes were not operational the park brakes would not work. If the S-Cams were stroked then there would have still been some friction on the rear brake drums. 18. Without an operational retarder, and without adequate or operational rear brakes, the front brakes would have taken the entire load. In theory TV 3574 could have descended into the Kangaroo Valley if before the descent it had been put into first gear. It was found in second gear.

[50]

An admission by conduct

At TT 959 and 960, Pam Lees said: "Simon was in the dining room and he came to the door with Warren and Stuart just said to Simon, "You told me you'd fixed the defects. What the hell is going on? I've just had the police all over my place?" Simon responded, "We adjusted the brakes and fixed them." I think Stuart said, "We've got to get our stories straight here." And Warren Beech said something to the effect, "Don't worry, we'll tell them that you saw the bus." Charley, Warren, Michael Fassoularis, Simon and myself were present.
The Crown seek to rely on this conversation as admission by both accused confirming that they entered into a sham whereby Stuart Lewry agreed to say he had inspected the coach and cleared it for registration when in fact he had not; relying on Simon Lees assurance the defects had been repaired. The prosecution rely on Warren Beech's comment and the fact that neither accused at the time denied the comment or contradicted him.
No objection was taken to this evidence. At the conclusion of the evidence I raised this conversation with counsel, as it is an important part of the prosecution case against both accused.
The representations are hearsay. They fall into two parts: The first are the admissions attributed to both accused; the second is each accused's implied acceptance of a representation said to have been made by Warren Beech.
At the time Pam Lees gave evidence it was not expected that Mr Beech would be a witness at trial; but he did give evidence later in the trial. A voir dire or Basha style enquiry was held as he had not made a police statement. The evidence given on the voir dire was later admitted in the trial. He said he did not know Stuart Lewry and would not know him now. At TT 1146 Mr Beech was asked by Mr Crown: Q. "Can you recall any occasion at the home of Pam Lees after Graham's death where you have seen Mr Lewry?" A. "No, not 100%. As I told you earlier, no, I can't be honestly answer that question with any honesty. I may have, I have met the bloke, because as I said you there was lots of people coming and going, condolences, do you want help, whatever, and I was there a lot after the accident for a couple of ‑ probably a year and a half, a lot backwards and forwards and helping them out and stuff."
Mr Beech gave no evidence of any conversation of the sort asserted by Pam Lees. There is evidence from Mr Fassoularis, Mr Beech was with Graham Lees in the G & S workshop when the coach was repaired but there is no evidence other than the assertion by Pamela Lees noted above that he was otherwise involved.

[51]

Assessment Pam Lees

I do not accept much else of what Mrs Pamela Lees said. There were a number of examples where she changed her testimony.
Initially, she tried to create the impression it was Graham Lees who was frustrated that Simon Lees was not having the retarder repaired. In cross examination it came out the opposite had occurred: "The arguments were over the work not being done… because I used to tell Graham to speak to Simon and that's how we'd start to argue." She was at Graham to get it done: TT 988 & 989.
Her late revelation of an "admission" to a sham transaction after the Inquest did not ring true and spoke of a reconstruction after the event to exculpate herself and the reputation of her late husband.
Her assertions that Graham Lees was to all intents and purposes a responsible owner/operator of this bus company was on all the evidence simply not true. She was responsible for the office. It was to the office that paperwork and complaints about maintenance were sent. It was from the office that paperwork was generated.

[52]

Assessment Simon Lees

There were surprising gaps in Simon Lees' memory of the events: for example he said he could not recall the last telephone conversation he had with his father on 14 May 2010 or any conversation with Mr Batovac.
However he did not appear to otherwise dissemble. There was nothing otherwise obvious in his ERSIP or in cross-examination which caused me to doubt he was trying doing his best. He was contradicted by some former drivers and Ms True about his knowledge of problems with TV 3574 but it was difficult to discern where the truth lay given the time that had elapsed. Where phone records were available the driver's accounts were often not supported. Simon Lees on the other hand was prepared to concede that his recollection of events had to be wrong given the phone records.
There is also a clear conflict between the work he actually did at G & S, what others thought or presumed his role to be, and the assertion he was to take over Mr Wall's role in the business.
Simon Lees was not Corey Wall. He did not have his skills or experience. He had mechanical skills and could do general mechanical work under supervision. That his tax return had his occupation as mechanic I discount. His pay slip from G & S said "Bus Driver:" Exhibit 72. He was a bus driver and general rouse about for his father's company.
Paper work was kept in the office as it was when Mr Wall left. He had no role in setting up or maintaining repair records. He was not the Accredited Operator. He had not been formally assigned a safety management role or signed a job description: Safety Management Handbook Exhibit 40. He had no training or experience or responsibility for safety risk management as required of Accredited Operators: MFI 21.
Simon Lees was concerned about the retarder being disconnected. It was not put to him he had disconnected it. Only Graham Lees had a motive to disconnect the retarder; to avoid additional wear on the transmission. Only Graham Lees could have had the retarder fixed and to do that he would have had to pay the outstanding account of $11,000 to Autoshift: Exhibit 42.
That Mr Graham Lees was winding down his role in the business meant that Simon Lees was the alternative go to person but Graham Lees was still apparently working 10 days in 14. Graham Lees had not relinquished control of the business to his son. Graham Lees had financial control. Graham Lees made the decisions about rostering. Graham Lees was aware of the Defect notice and directed Mr Fassoularis. Graham Lees employed Mr Fassoularis to do the repairs required. There is no evidence that Graham Lees gave any instruction to his son about responsibilities for safety or maintenance of the fleet. It was not Simons Lees' job, despite what others said and what Mrs Pam Lees told me, to get involved with paperwork. That there was no apparent, regular or documented system for maintenance at G & S was not Simon Lees' fault.

[53]

Assessment Stuart Lewry

Four particular attacks were made on Stuart Lewry's credibility by Mr Crown: 1. His purported lack of memory for an event where a coach he had cleared crashed with the death of a friend. 2. His story that Senior Constable Hamilton had told him what to say in his hand written statement. 3. His failure to print out a copy of the decelerometer reading and attach it to the RTA Defect notice. 4. His signing off on the RTA Defect Notice on 5 May 2010 and his saying Simon Lees had brought the vehicle to him when the evidence revealed Simon Lees did not drive the coach that day and the coach was being used to transport school children that day.
Despite rebuffing some of these attacks Stuart Lewry was not a convincing witness. He was nervous and overly defensive, even taking into account his understandable desire to meet the allegations. It is hard to accept he would not have heard of Graham Lee's death soon after 14 May. It is hard to accept he would not have made the connection to the coach he cleared. I cannot accept his assertion Senior Constable Hamilton told him to make up a statement. It is contradicted by the Senior Constable, whose version I accept.
Further, his evidence that he would inspect vehicle outside his inspection station and his general attitude to record keeping indicated a lax attitude to his duties as an Authorised Heavy Vehicle Inspector.
That said: 1. The RTA inspector Mr James also failed to remember the coach even after being told of the incident soon after by Senior Constable Hamilton. 2. It is not uncommon for witnesses unfamiliar with the courts to write statements saying what they did when in fact they are saying what they would have done had they followed normal procedure. 3. While the Authorised Inspection Station Notice required that decelerometers be capable of printing out records and that an original and copy 'shall be printed': Exhibit 54 at Appendix 1 - a 2:15 and 4; the actual regulations applicable - the Road Transport Vehicle registration Regulations 2007 - Business rules Rule 8:12, state that "The Authorised examiner is only required to inspect the specified items that are referred to in the defect notice when the vehicle is presented for inspection. An inspection report not required to be completed." (Their emphasis.) Business Rule 2.36 only requires a printout be attached to inspection reports: Exhibit 77. Mr Lewry was correct to say he did not have to print the decelerometer report, although with hindsight it would have been better for him if he had.

[54]

Prosecution Submissions

Mr Fox, Crown prosecutor, in closing, took me carefully through the evidence and his criticisms of both accused and the defence expert Ms Gaffney. He said I would reject each accused and their witness and that having done so I would find that the prosecution case on each count had been proved beyond reasonable doubt. The focus of his submission was on evidence, establishing so far each accused was concerned, the existence of a duty of care and its breach. He reiterated by reference to the evidence what he set out in his opening, set out above. He took me to a number of points I have already addressed in my review of the evidence I will note others when I set out my determinations. I trust this judgement does justice to Mr Crown's submissions.

[55]

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

There is one matter that needs resolution at this stage. Mr Crown, relying on Patel v The Queen [2012] HCA 29; (2012) 247 CLR, at [90], submitted that so far as Mr Simon Lees was concerned I could take account his special knowledge as an apprentice mechanic as relevant to how a person with that knowledge would act and that because of this special knowledge the standard of conduct expected of him was higher.
I do not accept that argument: Firstly, because the level of special knowledge attributed to Mr Simon Lees cannot be sustained just by reference to his having some training as a light truck mechanic and his TAFE attendance. Secondly, this is not a case where exceptions to the general principle should apply.
The test of criminal negligence is objective. This is because of the value the law places upon human life; the law only punishes grossly or criminally negligent conduct which causes death or grievous bodily harm, and it does so regardless of the subjective intentions of the accused or the accused's appreciation of the risk involved in his or her conduct. The test does not require that an accused have an appreciation of, or an indifference to, the risk created by the conduct in question. The only criterion necessary is an intention to do the act, which inadvertently causes death or grievous bodily harm. The Queen v Lavender; Patel v The Queen, at [87] - [94].
The objective standard of conduct set by the law in a case such as the present is for Mr Stuart Lewry - that of a reasonably competent Heavy Vehicle inspector and for Mr Simon Lees - that of a reasonably competent bus company manager.
If Simon Lees can't rely on limitations to his imputed knowledge to exculpate himself, I see no reason to impose a special level of knowledge on him. As with Mr Lewry, he will be judged by an objective standard; here, the minimum standard, applicable to all persons who profess to have the skills and competence of someone in their position. The real question remaining, so far as Mr Simon Lees is concerned, is not his special knowledge but; did he have the position of authority in G & S attributed to him by the prosecution?

[56]

Submission for Simon Lees

For Simon Lees, his counsel Mr Heathcote, submitted that the evidence cannot establish Simon Lees was the General Manager of G & S. He did not have the responsibilities attributed to him by the prosecution. He did not control the repair schedule of the buses in the fleet. He was not responsible for ensuring they were maintained. He was not responsible for allocation of buses or payment of repairs. He was not involved in the RTA inspection of TV 3574, or its clearance by Stuart Lewry. He was not aware that on 14 May 2010 Mr Batovac had had a problem with the brakes. There was no duty of care for Simon Lees to breach. He adopted Mr Healey's submissions on the causation issue.

[57]

Submissions for Stuart Lewry

For Stuart Lewry, his counsel, Mr Healy, accepts that the accused had a duty of care to do his job properly and that included inspecting the coach and satisfying himself that the RTA defect had been remedied; and, he submitted, that is exactly what he did. Mr Lewry had no duty to repair. He had no duty to carry out a more detailed inspection. He had only to satisfy himself, using the methods and equipment normally available to him that the coach no longer had the defect: That is what he did. He was not responsible for anything else. He could not be held responsible for "4,000 unexplained kilometres".
Mr Healy pointed to what he submitted was the wilful negligence of Graham Lees, who was the proprietor of G & S and an experienced bus driver. Graham Lees was aware the coach had no retarder - he was responsible for this. Graham Lees was aware there was a problem with the brakes on the 14 May - Mr Batovac had told him about the problem. Graham Lees was aware there was a problem with the brakes on the journey to Kangaroo Valley - he stopped for 10 minutes near the Illawarra Highway about 17 km before the descent. Graham Lees was aware how steep the road into Kangaroo Valley was - he had been there before. Graham Lees was aware that other buses were available for the job and that if there was a problem with the brakes he should not drive down that incline.
Mr Healy's point was that that even if Stuart Lewry was negligent (which of course was denied) Graham Lees actions were an intervening event of such magnitude that it was the sole cause of the crash. Alternatively, he submitted I could not, based on Ms Gaffney's expert opinions, be satisfied that there was a problem with the rear brakes before TV 3574 began its descent into Kangaroo Valley.

[58]

Consideration

It is rare for a tragedy involving injury and death to have one single cause; here the crash involving TV 3574 was the culmination of many wrongs not one.

[59]

The cause of the crash

There were number things that in combination led to TV 3575 leaving the Moss Vale Road. First and foremost its brakes failed. The brakes failed because during the descent the front brakes become overheated and suffered brake fade. The rear brakes may also have overheated but they were in such poor condition prior to the journey down the descent that they would not have been effective to stop or slow the coach. As the emergency brake used the same brake mechanics as the rear brakes, it too was ineffective.
Mr Graham Lees does not appear to have selected the lowest gear before the descent or if he did the vehicle's transmission jumped into second. Without a retarder once the brakes had faded there was nothing to stop the coach's descent, the driver having failed in his attempt to wedge the coach against a guard rail or embankment.
The coach should not have left on its journey to Kangaroo Valley with the rear brakes in such a compromised condition. It should not have been used to pick up passengers. While it may have been possible for the coach to descend safely into the Kangaroo Valley in first gear and using only its front brakes; and while a serviceable retard would have helped greatly, the failure of the rear brakes was beyond reasonable doubt a significant cause of the crash and the death of Graham Lees and the injuries to Mr Wizbicki.

[60]

A duty of care?

Returning to what the Crown had to prove beyond reasonable doubt against each accused, it not being disputed that there was a crash, that Graham Lees died as a result of the crash and that Mr Wizbicki was suffered really serious injury. I have determined that brake failure was a substantial cause of the crash.
So far as each count was concerned it had to be shown that: 1. that the accused owed a duty of care to the deceased and or Jan Wizbicki; 2. that the accused acted in breach of that duty (whether by act or omission); 3. that the act or omission amounting to breach of duty caused or was a substantial cause of the death of the deceased or grievous bodily harm to Mr Wizbicki; 4. that that act merited criminal punishment because: 1. it fell so far short of the standard of care which a reasonable person would have exercised in the circumstances; and, 2. it involved such a high risk that death or really serious bodily harm would follow; and 3. that the degree of negligence involved in the conduct is so serious that it should be treated as criminal conduct.
The focus of this trial was on duty and breach. I have already set out what has to be proved to establish an accused had a duty to either the deceased or Jan Wizbiki. It is not in dispute that Mr Wizbicki, was as a passenger, vulnerable and ignorant of any problems with the coach.
I must now ask: 1. Was there a breach of the duty? 2. If so what in precise terms was the breach of the duty? 3. Was the death of the deceased causally connected to the breach of the duty? 4. 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?

[61]

Stuart Lewry

Stuart Lewry had a statutory or regulatory obligation to inspect the coach that would be the subject of his signing of the RTA compliance certificate: Exhibit 32. The source of his duty was that he was a licensed Heavy Vehicle Examiner.
Given his position as a Heavy Vehicle Examiner, the regulations and the importance of his decisions; his duty was to exercise reasonable care to prevent foreseeable injury arising from the certification of a bus as roadworthy, because a defective part had been rectified when that part had not been rectified.
The extent of his duty was to inspect the coach and ensure that the defective part had been rectified.
The breach alleged is that Stuart Lewry did not inspect the coach. Mr Crown submits that if he had, and if he had applied his normal procedures, he would have noticed that the brakes had not been adjusted at all or incompetently and that the remaining brake linings on the rear were at a dangerously low level - at or below the rivets. Accordingly the coach would not have been cleared for registration until the brakes had been repaired and but for that it would not have been driven down the Moss Vale Road with defective or inoperative rear brakes.
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.

[62]

Determination Stuart Lewry

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.
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.
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.
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.
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.
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."

[63]

Simon Lees

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.
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.
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.
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.

[64]

Determination Simon Lees

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.
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.
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.
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.
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.
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.

[65]

A break in the chain of causation

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.
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.
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.
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.

[66]

Simon Lees

On Count 1 the unlawful killing of Graham Lees - Not Guilty.
On Count 2 causing grievous bodily harm to Jan Wizbicki by negligent act - Not Guilty.

[67]

Stuart Lewry

On Count 1 the unlawful killing of Graham Lees - Not Guilty.
On Count 2 causing grievous bodily harm to Jan Wizbicki by negligent act - Not Guilty.

[68]

Amendments 12 April 2019 - Typographical errors in [31] [153] [425] [426] [432] 20 September 2019 - Amended to correct typographical and grammar mistakes. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 September 2019

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)

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (68 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (45)

Cited By (2)