R v Simon Lees

R v Simon Lees - [2019] NSWDC 514 - NSWDC 2019 case summary — Zoe

Introduction

On 11 April 2019, after a four week trial, heard by judge alone, I acquitted Simon George Lees and Stuart Lewry of charges that each was responsible for the manslaughter of Mr Graham Lees by criminal negligence at Kangaroo Valley on 14 May 2010 and that each was responsible for grievous bodily harm by negligent act to Mr Jan Wizbicki: R v Lees (No 2) (Verdict); R v Lewry (No 2) (Verdict) [2019] NSWDC 118. Both accused, now seek an order I award of a certificate for their costs of the trial: Costs in Criminal Cases Act 1967, (the Act). The applications are opposed by the Crown.
It was not in dispute that Graham Lees died on 14 May 2010, after an Austral Starliner passenger coach, TV 3574, he was driving left the Moss Vale Road as it descended into the Kangaroo Valley, near the Barrengarry Mountain Nature Reserve. It was not in dispute that Jan Wizbicki, one of his passengers, was seriously injured in the crash.
At trial it was alleged that Simon Lees was the manager of the coach company G & S Minicoach Pty Ltd (G & S), owned and operated by his father, the deceased, Graham Lees. It was alleged that as manager Simon Lees was given, and had assumed, responsibility for the maintenance of the coach involved in the incident and was aware of it having both defective brakes and a non-functional transmission retarder: see R v Lees (No 2) (Verdict); R v Lewry (No 2) (Verdict), at [73]. Accordingly, it was submitted, he was aware that the coach should not be driven and, if driven, this would put drivers and passengers in danger.
Stuart Lewry was a Heavy Vehicle Inspector, to whom the coach had been taken in early May 2010 to have cleared of 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, allowing it to be re-registered without inspecting the coach, and that an inspection would have revealed that the coach's rear brakes were in an unsafe and unroadworthy condition.
On 28 March 2019 I rejected defence applications for directed verdicts: R v Lees; R v Lewry [2019] NSWDC 117. That decision was made, as the law requires, after considering the Crown's evidence at its highest and asking: could the Crown prove a breach of duty by an accused?

[4]

Trial Judgment

My judgment at trial was lengthy and set out in detail my findings of fact and law and an assessment of witnesses. I do not intend to repeat those findings here in any detail. I am however required here to make an objective analysis of all of the relevant evidence, which includes the evidence at trial and that tendered in this application by both the applicants and the Crown.
Stuart Lewry was acquitted because the Crown could not prove beyond reasonable doubt that he did not inspect the coach. Further, I concluded that if he did inspect it, to the minimum level required, he may not have noted the coach's brakes were unroadworthy as his obligation was to clear the noted defect and the coach had been defected only for a rear wheel brake imbalance.
Critical to this conclusion was evidence from Mr James the RTA inspector who saw the coach on 3 May 2010. While Mr James defected the coach for specific reasons, most notably a brake imbalance, he did not defect the coach for worn out, dangerous or unroadworthy rear brakes. Mr James told me at trial that his normal practice would have been to make such an inspection and the coach would have been defected for this reason had that course been required.
I concluded, contrary to expert evidence from a number of Crown witnesses, that Lewry was not obliged to take the brake components apart if the coach otherwise passed his tests. He was only required to clear, or reject as not repaired, what was set out in the RTA defect notice; here, relevantly, the rear wheel brake imbalance.
Further, while I did conclude the brake were in a very poor state as at 5 May 2010 I could not presume the brakes were in the same state of imbalance on 5 May 2010 that they had been in when they failed the RTA's test on 3 May 2010, given the evidence that an in-house mechanic at G & S had worked on them.
I found that Stuart Lewry had a duty of care to inspect the coach and only certify a defect as corrected if the coach complied with requirements but it could not be proved to the high standard required that he breached that duty.
So far as Simon Lees was concerned I determined that the prosecution had failed to prove beyond reasonable doubt that he owed a duty of care to his father Graham or Jan Wizbicki. The prosecution case was he was in fact the manager of G & S. I concluded they had not done so. They could not establish beyond reasonable doubt that, whatever his knowledge about TV 3574, he had a responsibility to take steps to avert or lessen the risk of the crash on 14 May 2010.
In addition to those specific finding relating to each accused, I also accepted evidence from a bus driver Mr Batovac that he told Graham Lees the coach was unroadworthy just before Graham Lees drove it from the depot before the crash. Having considered this evidence, and other evidence relating to Graham Lee's continuing role and responsibilities at G & S, I found that there remained a reasonable possibility that Graham Lees was aware of the problems with the coach's brakes and braking systems and with that awareness made a voluntary and informed decision to take TV 3574 down the Moss Vale Road; a road with such a steep decline that a brake failure and crash were inevitable, despite his skill as a driver.
I held that: "Whatever faults may be attributable to an accused there has been an intrusion of a new cause. The prosecution cannot exclude the fact that the deceased's own actions in fact and law broke the chain of causation between any breach of duty by an accused and the death of Graham Lees and the injury to Mr Wizbicki:" R v Lees (No 2) (Verdict); R v Lewry (No 2) (Verdict), at [451].

[6]

Legal principles

It is important to note that the fact of acquittal is a precondition for the granting of a certificate not the basis for granting it. Before granting a certificate I must first form the opinion specifying the matters in s 3(1) (a) and (b) and exercise the residual discretion contemplated by s 2.
In Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550, at [560]-[561], the Court set out this portion of the second reading speech of the Costs in Criminal Cases Bill 1967: "The bill represents a middle course … It departs from the old English conception that costs in criminal trials should only be awarded in exceptional cases. On the other hand it establishes criteria which, when applied judicially permit courts to make orders in appropriate cases without any innuendo arising from the making, or the refusal to make such orders that would be critical either of the prosecutor or the accused."
Justice McColl helpfully distilled the relevant authorities in Mordaunt v DPP [2007] NSWCA 121, at [36]. From that summary I draw the following propositions, which seem pertinent to this application. I have not included citations, which are set out in Her Honour's comprehensive judgement: 1. The institution of proceedings refers to the time of arrest or charge. 2. The onus of proof is on the applicant. 3. There is no exhaustive test of what constitutes unreasonableness. 4. The reasonableness of a decision to institute proceedings is not based upon; 1. Any reasonable prospect of conviction test generally used by prosecution agencies throughout Australia. The test applied by magistrates when deciding to commit for trial. 2. The test of reasonable suspicion, which might justify an arrest. 3. The test which determines whether the prosecution is malicious. 4. Whether there is evidence to establish a prima facie case. 1. The fact that a court concluded the evidence was insufficient to warrant a conviction is not necessarily indicative of unreasonableness. 2. A judgment of acquittal in favour of an accused does not mean that it was not reasonable to have prosecuted. 3. There must be an objective analysis of the whole of the relevant evidence including; 1. The extent to which there is any contradiction of expert evidence concerning central facts necessary to establish guilt, or 2. Any inherent weakness in the prosecution case. 1. Matters of judgment concerning credibility, demeanour and the like are likely to fall on the other side of the line of unreasonableness, being matters quintessentially within the realm of the ultimate fact finder, whether it be Judge or Jury. 2. If, in the end, the question for the trier of fact depended upon word against word this is not sufficient to establish the issue of unreasonableness in favour of an applicant; as in a majority of such cases, it would be quite reasonable for the prosecution to allow those matters to be decided by the jury. 3. It is different where the word upon which the Crown case depended had been demonstrated to be one, which was very substantially lacking in credit. 4. Before a certificate is granted, the judge must have formed an opinion specifying the matters in s 3(1) (a) and (b), and must also exercise the residual discretion, contemplated by s 2.
Basten JA said in AB v Director of Public Prosecutions (NSW), at [3]: "The relevant test is whether a decision to prosecute would have been unreasonable in the circumstances hypothesised: there is no occasion to impose some gloss upon the words of the section." His Honour then noted the importance of the general propositions that emerge from the authorities, but said each case will turn on its own facts and on whether the Court in any particular case forms the opinion contemplated by s 3(1)(a).
In short summary: A judge may grant to a defendant a certificate under this Act, specifying the matters referred to in section 3: 1. if the prosecution had, before the proceedings were instituted, been in possession of evidence of all the relevant facts, it would not have been reasonable to institute the proceedings, and 1. that any act or omission of the defendant that contributed, or might have contributed, to the institution or continuation of the proceedings was reasonable in the circumstances.
I need to assess what were all the relevant facts - and assess them as if they were known before the proceedings were instituted. I note the section here refers to "institution" of proceedings - not their continuation.
Here, leave was sought by the prosecution to adduce additional evidence in the Lewry application going to acts of that defendant that contributed, or might have contributed, to continuation of the proceedings. That leave was given. Accordingly, I received an affidavit of Ms Costigan, solicitor, Director of Public Prosecutions (DPP), setting out matters relating to pre-trial discussions between those then acting for Lewry and the DPP.
Accordingly, in Lewry's application I must accordingly assess whether there was act or omission by him that contributed, or might have contributed, to the institution or continuation of the proceedings, and whether that act was reasonable. This raises in turn the questions: 1. What is an act that - contributed, or might have contributed, to the institution or continuation of the proceedings? 2. How do I assess its reasonableness?

[7]

Submissions

Each party provided the court with comprehensive written and oral submissions. Each submission carefully set out relevant principles and authority. What follows is the briefest of summaries.
For Lees it is submitted that the Crown should have been alerted to the weakness in their case because the failure of the Coroner to refer the matter on. Lees also relied on my findings that the Crown had not established he owed a duty of care to either Graham Lees or Mr Wizbicki because it had not been established he had the management role in G & S that carried with it that responsibility.
Lees noted what he submitted were important facts that, when hypothetically presumed to be in the possession of the Crown when proceedings were instituted, established it would not have been reasonable to institute proceedings against Simon Lees. In particular: 1. On 3 May 2010 the rear brakes had a measured operating force within regulated limits and no brake force defect or brake lining defect was detected by the RTA allowing for a conclusion the rear brake linings were in roadworthy condition. 2. My finding, at R v Lees (No 2) (Verdict); R v Lewry (No 2) (Verdict) [451].
Lewry's current application relied primarily on my finding that there had been the intrusion of a new cause; as opposed to the failure of Lewry to inspect the coach's brakes as alleged. My attention was also drawn to an application made by Lewry, prior to trial in which he asked the Director of Public Prosecutions to discontinue proceedings on the basis that the crash was solely referrable to the driving of Graham Lees and could not be attribuatable to any actions or omissions' of Lewry. Reference there was made to evidence that: 1. 4,000 km had been travelled by the bus after it was 'cleared' by Lewry and before the crash; 2. Evidence from passengers of the coach that Graham Lees was driving at an excessive speed for the circumstances; 3. The expert opinion of the defence witness Ms Gafney that skid marks on the road showed the coach's brakes were working just prior to the collision; and, 4. The absence of any evidence that Lewry had anything to do with the disconnection of the coach's supplementary braking system (using a transmission system retarder) as this was not the subject of any RTA defect notice.
The Crown responded to each submission by noting that following the Coronial Inquest further evidence had been obtained from both civilian and expert witnesses. In particular, additional evidence from Pam Lees, the deceased widow, supported by others, set out in detail Simon Lees' purported role as manager of G & S responsible for coach and bus maintenance.
Mrs Lees, with some support from another witness, had also provided additional evidence of admissions by both accused that they had participated in a sham transaction to clear the coach of defects, when it had not in fact been inspected or tested by Lewry.
It was submitted that the weight to be given to evidence from civilian and expert witnesses and what evidence was to be preferred remained matters of judgment concerning credibility, demeanour and the like are likely to fall on the other side of the line of unreasonableness, being matters quintessentially within my realm as the ultimate fact finder.
It was accepted that only very belatedly had Mr James, the initial RTA inspector who defected the coach for a brake imbalance, been asked to make a statement. The Crown noted however that while Mr James conceded his general practice was to inspect the condition of the brake linings by looking through the inspection ports this inspection would have been constrained by the limited access to those inspection holes on this particular coach.
Ultimately, the Crown's submission on this point was that my focus should be on the condition of the brakes on the day of the crash and the almost unanimous expert opinion available to the Crown that a proper inspection of the brakes by Lewry, in fact any proper inspection of the coach by him, would have revealed the rear brakes were not roadworthy.
So far as the break in the chain of causation point they submitted that this determination feel into that category of evidence which was quintessentially one for the trier of fact. A number of alternative hypotheses were open at trial. Much depended in this case on which witness and which part of conflicting expert testimony was accepted. Issues relating to the credibility of different witnesses, it was submitted, should not determine a costs application, as the authorities make clear.
Here, given the case against each accused was circumstantial the Crown's heavy onus was to negate all reasonable hypotheses consistent with innocence. That I found there were possibilities that had not been negated should not be determinative of the question about whether to institute proceedings was reasonable.
In addition, it was summited in the Lewry application that his own actions contributed to the continuation of the proceedings. Informal communications with the Crown pre-trial indicated he was not contesting he had entered into, and also admitted in Mrs Lees' presence, that there was a sham transaction to clear the coach without inspecting it. Further, Ms Gafney's report, which was served late, put forward a reason for the crash that was not accepted by neither the Crown's experts nor me.

[10]

Consideration

There were failings in the investigation of the matter - the crash scene was not, as Ms Gaffney deposed, recorded or documented properly, or if documented that evidence had subsequently been lost. Some of the initial investigation was, as Ms Gaffney noted, lacking in scientific rigour and reliant on subjective interpretations of what was seen. I do not wish to appear too critical as, having visited the scene; I appreciate how difficult compliance with those requirements would have been.
A statement should have been obtained from Mr James, the RTA inspector, in 2010. Other documents relating to G & S in particular fleet maintenance, driver rosters and driver job sheet for TV 3574 had been lost or destroyed.
After the Coronial inquiry evidence was available to the prosecution indicating that Simon Lees had assumed a role at G & S where he organised the management of repairs to the company's fleet. There was evidence from Mrs Pam Lees, and others, that Simon Lees had assumed that role and was actively engaged together with his father in that role. That Graham Lees may also have shared that role does not mean Simon was not negligent - contributory negligence is not a defence: R v Longbottom (1849) Cox' Criminal Cases 439.
There was evidence from Mrs Pam Lees, and others, that Simon Lees and Lewry participated in a sham transaction to "clear" the Austral Starliner passenger coach, TV 3574. Material provided to the Crown by lawyers then acting for Lewry supported that conclusion. That Lewry changed lawyers and did not give evidence in accord with what was set out in "draft," does not mean it was unreasonable to have regard to what was then said.
The Crown presented at trial a considerable body of expert evidence to show that G & S, as a company, had failed to properly maintain the brakes on TV 3574.
There was evidence at trial that Simon Lees had replaced the previous manager who had responsibility for management of repairs. That assumption was a reasonable one to make.
There was evidence at trial that Simon Lees was regularly called out to deal with mechanical problems with the G & S fleet.
The evidence at trial was that on 3 May 2010, 5 May 2010 and 14 May 2010, TV 3574's rear brakes were unroadworthy. They were unroadworthy because the brake pads were worn to or beyond, their limit. That assumption was a reasonable one to make.
There was expert evidence that on a full inspection of the brakes and the linings on the brake shoes it would have been obvious that the rear brakes were unroadworthy. There was expert evidence that a full inspection of the brakes was not possible by simply looking at the potion of the brake linings that could be seen by looking through the port in the wheel proved for that purpose. If there had been a full inspection of the rear brakes I accept it would have been obvious that the rear brakes were unroadworthy on 3 May 2015, 5 May 2010 and 14 May 2010.
It was reasonable to assume that anyone who was aware of the need to maintain a passenger coach would put a high priority on ensuring its brakes and braking systems were fully functional. In 2010, TV 3574 did not have fully functional rear brakes or a fully functional braking system. Mr Batovac, a regular driver of the coach, and others had made both Graham and Simon Lees aware of that general problem, although much of their focus was in the fact the engine transmission retarder had been disconnected.
Lewry's evidence at trial was unconvincing. His expert Ms Gaffney's opinion that the rear brakes left skid marks at the scene and were thus operating was not accepted by me.
At trial I did have to make a judgment as to which witness's evidence had to be accepted as against another. I did not accept Mrs Lees. I preferred Mr what Mr Batovac and Simon Lees said to what she said, but that said, the prosecution were aware of deficiencies in Mrs Lees' evidence and put particular emphasis at trial on my accepting Mr Batovac as a witness of truth. The prosecution were well aware, before proceeding were commenced, that there was a critical conflict between what was said by Mr Batovac and Mrs Lees when Graham Lees took TV 3574 from the G & S depot on 14 May 2010.

[11]

Determination Lewry

Stuart Lewry was acquitted because the Crown could not exclude all hypotheses consistent with innocence. These particular points were critical to my assessment of the evidence against him: 1. Lewry's responsibilities as a Heavy Vehicle Inspector related only to clearing the defects in the RTA notice. That notice did not require him to take the brakes apart or inspect them. He was only obliged to clear the imbalance. 2. An RTA inspector, who it can be presumed looked at the coach as the Heavy Vehicle Inspector would have, did not note the problem with the rear brake linings that were ultimately the reason why the brakes failed on the descent into the Kangaroo Valley. 3. While I was highly suspicious that there was a "sham" inspection the Crown had failed to exclude the possibility that a proper clearance by Leery could have occurred. The documented movements of TV 3574 on the 5 May 2010 allowed a window of opportunity for it to occur. Other evidence did not remove that doubt. 4. After the 'purported" inspection on 5 May 2010 the TV 3574 travelled 4,000 km. Details of where it travelled and brake use or abuse were scant. 5. There was evidence that the brakes had been adjusted in an attempt to fix the imbalance by the mechanic at G & S. Evidence from experts that they had not been worked on was unable to be accepted because there is no field of scientific expertise covering the field of tools marks on road grime found under heavy vehicles: R v Lees (No 2) (Verdict); R v Lewry (No 2) (Verdict) at [343] to [359]. 6. TV 3574 did not crash because of a rear brake imbalance. TV 3574 crashed because it should not have been driven at all on 14 May 2010. It should not have been driven because its rear brake pads had worn well beyond what was required to function properly. Further, it should not have been driven down a steep incline while its engine transmission retarder had been disconnected. 7. It is possible that had Lewry fully inspected TV 3574 on 5 May 2010, he might have seen what Mr James apparently did not. If he had, he may have alerted G & S that further repairs to TV 3574 were critical. But his obligations were limited: To clear the defects noted by the RTA he did not have to inspect or test the coach beyond that requirement, nor did he have any obligation to repair the vehicle.
The prosecution's focus on the alleged sham transaction led them to place on Lewry an obligation and consequent duty that went well beyond what was required of a Heavy Vehicle Inspector. The prosecution was misconceived. Before the proceedings were instituted, the prosecution was in possession of evidence relating to most of these relevant facts. The only additional matter that came out during proceedings was the evidence of Mr James, which assisted the defence and should have been obtained before proceedings were instituted.
Here, I must also consider whether any act or omission by Lewry contributed, or might have contributed, to the institution or continuation of the proceedings was reasonable in the circumstances. Nothing done by him contributed, or might have contributed, to the institution of the proceedings. But it asserted that his conduct, and that of the lawyers then acting on his behalf, contributed, or might have contributed, to the continuation of the proceedings.
I accept that Lewry did by his pre-trial actions led the prosecution to believe that their evidence of a "sham" inspection was strong. However, as I have noted the inspection on 5 May 2010 while if carried out with diligence may have led to TV 3574 not being cleared, Lewry's obligation was to check the brake imbalance not diagnose a problem with the brakes themselves. The Crown case that there was a "sham" clearance was central to the prosecution of both accused. Lewry's informal offers and draft statement simply confirmed the line that was to be run at trial it did not did not contribute to the continuation of the proceedings.
The application that the proceedings be no billed and Ms Gaffney's' report did not fully anticipate the reasons why I ultimately acquitted him - but they did raise the ultimate conclusion I reached. Rebutting Ms Gaffney's conclusions and other defence evidence that rear brakes were roadworthy at the time of the crash and the purported clearance did prolong the trial but that evidence did not contribute to the continuation of the proceedings.
Accordingly, I must conclude it would not have been reasonable to institute the proceedings against Stuart Lewry.

[12]

Determination - Simon Lees

Simon Lees was acquitted because the prosecution could not exclude all hypotheses consistent with innocence. The Crown case against Simon Lees was similar to but stronger than that against Lewry. It relied not only on his participation in a sham clearance but his role at G & S, his experience with the problems with the brakes and roadworthiness of TV 3574 and what it was alleged he had been told about TV 3574 by Mr Batovac, particularly, but not exclusively, on 14 May 2010. If those matters had been accepted by me (and I note again I did not accept the Crown had met its heavy onus) Simon Lees could have been convicted of both offences, had it not been for my alternative finding that Graham Lees' action in driving the coach down into the Kangaroo Valley broke the chain of causation.
The Crown case against Simon Lees was premised on the basis that he effectively controlled the maintenance and repair of the fleet at G & S. Considerable evidence was called to establish his managerial role in the company. That case was circumstantial. One important factor that had to be proved was his presence at G & S when important decisions were made about coach TV 3574. That the prosecution ultimately failed to convince me does not mean the institution of proceedings on this basis was unreasonable, even when I consider, retrospectively, all the relevant facts in relation to it.
If rejection of the Crown case on this point had been the only reason for the acquittal it would provide no basis for a successful costs application. However, I have to consider the mater on the basis that the prosecution were in possession all the relevant facts.
The Crown case at trial was hampered by the absence of records from G & S about maintenance and driver records for TV 3574. They were aware of that deficiency in their case when the proceedings were commenced.
The Crown case was hampered by not having a statement from Mr James taken in 2010 and an inadequate appreciation of what was strictly required of Heavy Vehicle for an RTA clearance of a brake imbalance. They were aware of, or can be presumed to be aware of, these deficiencies in their case when the proceedings commenced.
The Crown case was hampered by evidence that Graham Lees was aware of the many problems with TV 3574 before he drove it from the depot on its final and fateful journey. In particular that Mr Batovac had told him of them and that Batovac's phone records did not support the fact he spoke to Simon Lees from Bondi. They were aware of those deficiencies in their case when the proceedings commenced.
It is correct for the Crown to submit that my conclusions about the alleged sham transaction and what was said by Batovac and Pam Lees depend on which witness's testimony I accepted. They are matters of judgment concerning credibility, demeanour and the like which are difficult to predict. But a number of significant problems relating to Mrs Lees' reliability and whether phone records supported a witness's statements, in particular, should have been considered in advance of prosecution.
If they had it would not have been reasonable to put any reliance of her as a witness of truth not just as to the alleged admissions but to her descriptions of both Simon and Graham Lees' respective roles at G & S.
There was an abundance of evidence that Graham Lees still played an active managerial role at G & S - in particular relating to the allocation of drivers and directing the G & S mechanic in relation to the repairs required by the RTA to TV 3574. That information was available before proceedings were instituted. The prosecution was aware of these deficiencies in their case when the proceedings commenced.
If the prosecution had, before the proceedings were instituted, been in possession of evidence of all the relevant facts, in relation to Graham Lees continuing role at G & S and his knowledge of the condition of TV 3574's brakes and braking systems, before he left on its fatal journey down into the Kangaroo Valley it would not have been reasonable to institute the proceedings.
Accordingly, I must conclude it would not have been reasonable to institute the proceedings against Stuart Lewry.

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Judgment (14 paragraphs)

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Cases Cited (7)