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  4. R v Gallaty - [2020] QDC 230

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R v Gallaty[2020] QDC 230

R v Gallaty[2020] QDC 230

DISTRICT COURT OF QUEENSLAND

CITATION:

R v Gallaty [2020] QDC 230

PARTIES:

R

v

RONALD TREVOR GALLATY

(defendant)

FILE NO/S:

BD 453/20

DIVISION:

Criminal

PROCEEDING:

Trial

DELIVERED ON:

18 September 2020

DELIVERED AT:

Brisbane

HEARING DATE:

12, 13, 17, 18 and 20 August 2020

JUDGE:

Barlow QC DCJ

VERDICT:

Guilty of dangerous operation of a vehicle causing death

CATCHWORDS:

CRIMINAL LAW – PARTICULAR OFFENCES – CULPABLE OR DANGEROUS DRIVING CAUSING DEATH OR BODILY HARM – CAUSATION – defendant was driving a truck and trailer – trailer slid into oncoming lane – whether the defendant was driving too fast for the conditions – whether the automatic emergency application of the brakes by the truck’s automatic brake assist or its stability control function (or both) or faults in the trailer’s brakes caused the trailer to slide into oncoming lane 

CRIMINAL LAW – GENERAL MATTERS – CRIMINAL LIABILITY AND CAPACITY – DEFENCE MATTERS – ACCIDENT – EVENT OCCURING BY ACCIDENT OR CHANCE – defendant contended that the automatic emergency application of the truck’s brakes or faults in the trailer’s brakes were an act independent of the defendant’s will that caused the deceased’s death or were not foreseeable – whether the defence of accident applies

Criminal Code Act 1899 (Qld) s 23, s 328A, s 615B, s 615C

R v Falconer (1990) 171 CLR 30, applied

R v MMH [2020] QDC 70, applied

R v Neilan [1992] 1 VR 57, applied

R v Quinn [1962] 2 QB 245, applied

R v Summers [1990] 1 Qd R 92, applied

R v Taiters [1997] 1 Qd R 333, applied

COUNSEL:

DC Boyle for the Crown

AS McDougall for the defendant

SOLICITORS:

Office of the Director of Public Prosecutions for the Crown

TWC Lawyers for the defendant

Contents

Introduction3

Preliminary principles4

Elements of the alleged offence6

The principal issues8

Crown evidence9

Eye witnesses9

Anthony Simpson9

Grace Ivory10

Kerrilee Angus10

Mark Cantlon11

Expert witnesses11

Neil James Campbell11

Robert Tilney14

David Oliver16

Peter Briggs17

Antony Cheyne17

Timothy Woodcock18

Andrew McLaren19

Siva Jeevaratnam20

Other Crown evidence21

Mark Graham21

Brayden Walker22

Defendant’s evidence23

Preliminary matters23

Roadside interview23

Formal interview25

Evidence in court26

Other defence evidence31

Mark Sculthorpe31

Steven Smith34

Submissions36

Defence36

Defence of accident41

Crown42

Discussion and findings of fact46

Was Mr Gallaty driving dangerously?46

Vehicle speed46

Vehicle path on the road47

Conclusion on driving dangerously49

What caused the trailer brakes to lock?50

Active brake assist50

Stability control52

Braking by Mr Gallaty53

The brake system faults54

Conclusion on cause of braking55

Defence of accident55

Conclusions and verdict58

Introduction

  1. [1]
    Thursday 17 November 2016 was a dry, sunny day in the Gold Coast hinterland in southern Queensland.  Shortly after 9.00 o’clock that morning, Peter Wayne Bohlsen, an employed driver for Logan Coaches, was driving a bus in a northerly direction along Waterford-Tamborine Road, about 2 kilometres south of the township of Yarrabilba.  Mr Bohlsen had two passengers on board.  One was a fellow bus driver, Anthony Simpson, who was sitting in the front passenger seat chatting with Mr Bohlsen. 
  2. [2]
    At about the same time, the defendant, Ronald Trevor Gallaty, was driving his Mercedes Benz Actros truck, towing a Hamelex quad axle tipper trailer, in a mostly southerly direction along Waterford-Tamborine Road.  Shortly before, he had delivered a load of sand to an address in North Maclean, so both his truck and his trailer were empty.  He was on his way to collect a fresh load from a sand and soil company in Boyland.
  3. [3]
    Waterford-Tamborine Road at the time could be described as a not unusual semi-rural road.  It had one lane in each direction, constructed with bitumen and separated by continuous double white lines.  Each lane was about 3 metres or less wide, had an edge line and beyond that line on the southbound lane was a bitumen edge about 0.5 metres wide.  The surface of the road was cracked and bumpy in places, but it was by no means in substantial disrepair.
  4. [4]
    Mr Gallaty was well familiar with that road.  He drove his truck and trailer 5½ days a week and he drove on that road about twice a month.  He had owned the truck since July 2015, before when it had been a demonstrator vehicle and it had travelled about 20,000 kilometres.  He had owned the trailer since 2011.  He had been driving heavy vehicles since about 1990.
  5. [5]
    The weather was clear and the road was dry.  The speed limit on that section of the road was 80kmh.  Both Mr Gallaty and Mr Bohlsen were driving at about that speed while on straight sections of the road. 
  6. [6]
    About 325 metres[1] roughly north of the intersection of Dollarbird Road there is a bend in Waterford-Tamborine Road.  Travelling south, as Mr Gallaty was, the road bends to the left.  Mr Gallaty’s truck and trailer and Mr Bohlsen’s bus met at about (or just south of) the apex of that bend.  At that point and for some distance in each direction from the bend, the lanes on the road were separated by double white lines.
  7. [7]
    As Mr Gallaty’s truck and trailer rounded the apex of that bend, the trailer started to skid to the right of the path of the truck.  It crossed the centre lines and collided with the front right hand side of the bus, causing considerable damage to both the bus and the trailer.  Mr Bohlsen suffered severe injuries, from which he died a few days later.
  8. [8]
    Mr Gallaty is charged that, on 17 November 2016, contrary to s 328A of the Criminal Code Act 1899, he dangerously operated a vehicle on Waterford-Tamborine Road and caused the death of Mr Bohlsen.
  9. [9]
    Mr Gallaty has pleaded not guilty.  On 6 July 2020, an order was made pursuant to s 615 of the Code that the defendant be tried by a judge sitting without a jury.  I have conducted the trial.  It is my role to determine on the evidence whether Mr Gallaty is guilty or not guilty of the offence charged.  It is also open to me to consider whether Mr Gallaty is guilty or not guilty of an alternative offence, namely dangerous operation of a vehicle.

Preliminary principles

  1. [10]
    In a trial by a judge sitting without a jury, the judge must apply, so far as is practicable, the same principles of law and procedure as would be applied in a trial by jury.[2]  If statute or the common law requires that information, a warning or an instruction be given to a jury, the judge in a trial sitting without a jury must take that requirement into account if it is relevant to the trial.[3]
  2. [11]
    In reaching a verdict, the judge may make any finding or give any verdict that a jury could have made or given if the trial had been before a jury.  Any finding made or verdict given by the judge has the same effect as a finding or verdict of a jury.[4]  Unlike a jury, a judge must give reasons for his or her verdict.  The reasons must include the principles of law that the judge has applied and the findings of fact relied upon.[5]
  3. [12]
    The burden of proof rests on the prosecution to prove the defendant’s guilt.  There is no burden on the defendant to establish any fact, let alone his innocence.  A defendant in a criminal trial is presumed to be innocent.  The Crown has the burden of proving the defendant’s guilt of the offence charged beyond reasonable doubt.  Before I may find the defendant guilty, the Crown must satisfy me, beyond reasonable doubt, of all the essential elements of the offence.  If I am left with a reasonable doubt about the defendant’s guilt, my duty is to acquit him. If I am not left with any such doubt, my duty is to convict him.  I must approach my duty completely impartially and emotion or sympathy (whether for the defendant, the deceased or anyone else) must play no part in my decision.
  4. [13]
    In conducting the trial and in considering the verdict, I also adopt, with respect, the principles set out by Smith DCJA in R v MMH [2020] QDC 70 at [10] (some of which I have expanded upon in this section of these reasons).
  5. [14]
    I must reach my verdict only on the evidence presented in court. The evidence comprises what the witnesses said from the witness box, by telephone or by video link, the admissions that have been made and the other exhibits that have been tendered.  Nothing else is evidence, including, of course, the opening statements and the closing addresses of counsel for the Crown and for the defence.
  6. [15]
    Much of the evidence in this case was given by expert witnesses.  On the whole, neither party disputed that the expert witnesses called by the other had the necessary expertise to express opinions on matters within their expertise.  Where I consider that such a witness has expressed an opinion in an area outside that person’s expertise, I shall record that fact and disregard that opinion.  The fact that they are experts does not mean that I must automatically accept their evidence.  As with other evidence, I assess and accept or reject any such opinion evidence as I see fit.  It is up to me to give such weight to the opinions of the expert witnesses as I think should be given, having regard in each case to the qualifications of the witness, whether I thought the witness to be impartial or partial to either side and the extent to which the witness’s opinion accords with whatever other facts I find proved. 
  7. [16]
    If the facts on which an expert’s opinion is based are not in accordance with the relevant facts that I find, I would not accept the expert’s opinion (unless there is some other legitimate basis that I accept).  I am also, to some degree, entitled to use overall common sense and to take into account my own experiences, if they are relevant to an issue to which an expert’s opinion relates.
  8. [17]
    Some of the experts (and indeed some of the non-expert witnesses) gave evidence by telephone or by video link.  I do not give any of that evidence any more or less weight, nor draw any adverse inferences against either party, simply because the evidence was given by telephone or video.
  9. [18]
    Some of the evidence tendered during the trial constituted recordings of conversations, each of which was transcribed and the transcripts were also tendered. Notwithstanding that the transcripts were tendered as exhibits, they are not really evidence, but merely an aid to my understanding of the recordings.  It is what I hear that matters; so if I hear something different from what appears in the transcript I should act on what I have heard, not on the transcript.
  10. [19]
    Similarly, some video recordings were tendered in evidence.  Some witnesses expressed their opinions of what could be seen from those recordings.  Their opinions in that respect are theirs, not mine.  Their opinions may assist me, but they do not bind me.  It is up to me to draw my own conclusions of fact (including any inferences) from what I see in the videos and not from what witnesses (or counsel) may see or seek to infer from those videos.
  11. [20]
    In addition to finding facts by reference to primary evidence, I can draw inferences – that is, deductions or conclusions – from facts which I find to be established by the evidence.  Similarly, evidence of direct facts may be circumstantial evidence from which I may logically conclude that another fact occurred.  However, I may only draw reasonable inferences; and any inferences must be based on facts that I find proved by the evidence. There must be a logical and rational connection between the facts that I find and any inferences I draw. I am not to indulge in intuition or guessing.
  12. [21]
    To bring in a verdict of guilty based entirely or substantially upon circumstantial evidence, it is necessary that guilt should not only be a rational inference but also that it should be the only rational inference that could be drawn from the circumstances.  If there is any reasonable possibility consistent with the defendant’s innocence, it is my duty to find the defendant not guilty.  This follows from the requirement that guilt must be established beyond reasonable doubt.

Elements of the alleged offence

  1. [22]
    In order to convict the defendant of the offence, the Crown must prove, beyond reasonable doubt, all the following facts.[6]
    1. (a)
      The defendant operated a vehicle.

The operation of a vehicle includes the speed at which the vehicle is driven and all matters connected with the management and control of the vehicle by the driver, such as keeping a lookout, turning, slowing down and stopping.

A “vehicle” includes a motor vehicle and anything else used or to be used to carry persons or goods from place to place.[7]  In this case, the vehicles involved were Mr Gallaty’s truck and the trailer it was towing.

In this case, the fact that Mr Gallaty was the driver of the truck, towing the trailer, is sufficient to satisfy the requirement that he “operated” each of those vehicles.  Neither party contended otherwise.

  1. (b)
    He did so in a place:  in this case, Waterford-Tamborine Road.

This is not in issue.

  1. (c)
    The defendant’s operation of the vehicle was dangerous.
  2. (d)
    The defendant thereby caused the death of the deceased.
  1. [23]
    Operating a vehicle dangerously means operating a vehicle at a speed or in a way that is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place;  the nature and condition of the vehicle;  the number of persons, vehicles or other objects that are, or might reasonably be expected to be, in the place;  the concentration of alcohol in the operator’s blood or breath;  and the presence of any other substance in the operator’s body.[8]
  2. [24]
    The expression “operates a vehicle dangerously” in general does not require any given state of mind on the part of the driver as an essential element of the offence.  A motorist may believe he or she is driving carefully, yet be guilty of operating a vehicle dangerously.  “Dangerously” is to be given its ordinary meaning:  that is, something that presents a real risk of injury or damage.  The ordinary meaning of “dangerous” is “fraught with or causing danger; involving risk; perilous; hazardous; unsafe.”  When applied to driving, it describes a manner or speed of driving which gives rise to a risk to others, including motorists, cyclists, pedestrians and the driver’s own passengers.[9]  The same can be said about the operation of a towed vehicle such as a trailer.
  3. [25]
    The prosecution must prove that there was a situation which, viewed objectively, was dangerous.[10]  For the operation of a vehicle to be dangerous, there must be some feature which is identified, not as a mere want of care, but as subjecting the public to some risk over and above that ordinarily associated with the operation of a vehicle, including operation by a person who may, on occasions, operate the vehicle with less than due care and attention.[11]
  4. [26]
    If a driver adopts a manner of driving that is, in all the circumstances of the case, dangerous to other road users, it does not matter whether the driver is deliberately reckless, careless, momentarily inattentive or even doing the driver’s incompetent best.  However, the prosecution must prove that there was some serious breach of the proper conduct of the vehicle upon the roadway, so serious as to be in reality, and not speculatively, potentially dangerous to others.[12]
  5. [27]
    The Crown contends that Mr Gallaty’s allegedly dangerous operation of the vehicles in this case (the truck and the trailer) arises principally from the manner in which he was driving his truck.  For simplicity, I shall therefore mostly refer to his operation of those vehicles as driving, but by doing so I do not exclude the fact that he was using the truck to tow the trailer and was thereby operating both the truck and the trailer.  This is also the manner in which counsel approached the issues during the trial.
  6. [28]
    The consequences of the defendant’s acts or omissions cannot add to the criminality of his driving.  The quality of being dangerous to the public does not depend on the resultant damage.  Whilst the immediate result of driving may afford evidence from which the quality of the driving may be inferred, it is not the result which gives that quality.[13]
  7. [29]
    As to the element of causing a person’s death, to cause means to cause directly or indirectly.  It is not necessary for the prosecution to prove that the dangerous operation of the vehicle was the only cause of Mr Bohlsen’s death.  It is sufficient for it to show that dangerous driving by Mr Gallaty was a substantial or significant cause of Mr Bohlsen’s death or contributed substantially to it.[14]

The principal issues

  1. [30]
    Before considering the evidence, it is useful to identify the real factual issues in this case, which go to whether Mr Gallaty was driving dangerously and whether his manner of driving caused Mr Bohlsen’s death. 
  2. [31]
    In short, the Crown contends that Mr Gallaty approached, entered and navigated the bend at a speed that was too high and was dangerous in all the circumstances.  The Crown alleges that it was particularly dangerous because the truck and the trailer were both empty, which reduced the friction of the tyres on the road, making the combination more unstable and more likely to lead to the stability control function of the truck activating the brakes, with a risk that the brakes on the trailer would lock up, causing an uncontrolled slide of the trailer into the oncoming lane.  The Crown says that is what happened, or alternatively Mr Gallaty himself applied the brakes in the bend, causing the trailer to slide.  Whichever of those was the cause, it resulted from Mr Gallaty’s dangerous driving and therefore it was his operation of the vehicle that caused Mr Bohlsen’s death.
  3. [32]
    Mr Gallaty admits that, as his truck rounded the bend, the trailer skidded across the road and struck the bus being driven by Mr Bohlsen.  He also admits that Mr Bohlsen died from the injuries he sustained from that collision.[15]  I do not understand the Crown to allege that Mr Gallaty intended to drive dangerously at that time.
  4. [33]
    It is convenient here to set out the circumstances that the Crown alleges led to Mr Gallaty’s operation of the truck and trailer being dangerous:[16]
    1. (a)
      excessive speed;
    2. (b)
      the curve in the road;
    3. (c)
      the road was in poor condition and was a single lane carriageway in each direction separated by two continuous dividing lines;
    4. (d)
      the size and heavy nature of the truck and trailer;
    5. (e)
      the trailer was unladen;
    6. (f)
      the traffic on the road travelling in the opposite direction;
    7. (g)
      the different brake systems for the truck (ABS[17]) and the trailer (non-ABS) which, on actuation, caused the brakes on the trailer to lock;  and
    8. (h)
      the brakes on the trailer were actuated by:
  1. (i)
    the operation of the truck’s stability control caused by the speed and steering of the defendant in driving the truck;  and/or
  2. (ii)
    the application of the brakes by the defendant.
  1. [34]
    The defence contends, in summary, that the Crown and the court cannot exclude beyond reasonable doubt that the trailer may have skidded because its brakes locked up as a result of the automatic emergency application of the brakes by the truck’s automatic brake assist (ABA) function or its stability control (SR[18]) function (or both).  It may also have been caused or contributed to by faults in the trailer’s brakes. Whichever was the cause, it occurred in circumstances where neither of those functions ought to have operated and Mr Gallaty could not have foreseen or prevented their operation.  Nor could he have foreseen the defects in the trailer’s brakes (if I find that those defects caused or contributed to the collision).  The expert evidence was directed principally to these questions.
  2. [35]
    The Crown contends that the court can be satisfied beyond reasonable doubt that the ABA function would not have operated so as to cause the brakes to be applied before the collision.  If any automatic system applied the brakes, it was the electronic stability control system, which is designed to detect a risk of the truck tipping and to attempt to prevent it by selectively activating its brakes.  However, the application of brakes in such a case can cause the brakes on a non-ABS trailer to lock the wheels instead of simply slowing them.  That can cause a loss of directional control of the trailer.  The loss of control of the trailer in this case was caused either by Mr Gallaty braking (and perhaps turning the steering wheel sharply to the left) or by the SR system detecting instability in the truck as it went around the corner and applying the brakes in an attempt to correct that situation.  In either case, the court can be satisfied beyond reasonable doubt that it was Mr Gallaty’s manner of driving the truck and trailer that caused the trailer to skid into the opposite lane and into the path of the oncoming bus.
  3. [36]
    Related to these issues are how fast Mr Gallaty’s truck was travelling as it entered and rounded the bend and whether that was a safe speed in all the circumstances.  Some of the expert evidence and much of the lay witnesses’ evidence was directed to those questions.
  4. [37]
    I turn now to review the evidence.

Crown evidence

Eye witnesses

  1. [38]
    The Crown called four witnesses who saw or were involved in the collision.

Anthony Simpson

  1. [39]
    Mr Simpson was, at the time, employed by Logan Coaches as a bus driver.  He was a passenger in the bus driven by Mr Bohlsen, sitting in the front passenger seat on the left side of the bus, just behind the entrance stairwell. 
  2. [40]
    Mr Simpson said that he had a very good view out of the large windscreen in front of him.  He said that, after passing the intersection with Dollarbird Road, the bus started slowing down.  As it approached the bend he saw a truck coming around the bend in the opposite direction.  The right front wheel of the truck was very near the centre double white lines on the road.  He saw the driver “reef” the wheel to the left[19] and then he saw the trailer begin to lose traction and to slide out and stop following the truck.  The trailer swung out and the right front side of the trailer connected with the right front side of the bus.  At that stage, the bus was just before the corner, a bit to the left of its lane.  When the trailer hit the bus, Mr Simpson was thrown into the windscreen and landed facing down the entry stairs.
  3. [41]
    Under further questioning, Mr Simpson said that when the truck came out of the bend it was moving at excessive speed, leaning to its right, and had come over the centre double white lines onto the wrong side of the road, then it moved back onto its correct side, causing the trailer to travel further into the bus’s lane.  By reference to the dash camera footage from the truck, he identified the point at which he saw the driver “reefing” the wheel to the left at about 1:12:28 on the timer.[20]
  4. [42]
    Mr McDougall, appearing for the defendant, showed Mr Simpson the relevant part of the dash camera footage and put to him that it demonstrated that the truck never crossed the centre lines.  Mr Simpson did not accept that and agreed that he had a firm picture in his mind that the truck came onto the double white line.

Grace Ivory

  1. [43]
    Grace Ivory was also a passenger on the bus.  She was sitting in a seat on the left side, about seven seats back from the entrance, talking to a friend on her telephone as the bus approached the bend.  She said that she was looking straight ahead as she was talking and nothing blocked her view of the windscreen.[21]
  2. [44]
    Ms Ivory said that she was familiar with the road and the relevant bend.  The bus appeared to her to be slowing down as it was approaching the bend.  At a point that she thought was about 200 metres before the bend, she saw a truck approaching the corner “at speed”.  She saw its front right wheel cross the double white lines.  As it came out of the bend, it appeared to her to start to brake and at the same time the trailer started to swing out so that it hit the bus.
  3. [45]
    When asked to identify, on the dash camera footage, where the truck was when she saw its right wheel on the double white lines, Ms Ivory said it was at about 1:12:26 or 27.  However, she accepted the proposition put to her by Mr McDougall that at that stage the truck was well and truly within the parameters of both the left edge line and the double white lines, although she was not convinced that that was the case from that footage.

Kerrilee Angus

  1. [46]
    Kerrilee Angus was driving her car behind the bus as it travelled along the road toward the bend.  She said that, as they approached the bend, the bus and she started to slow and the bus moved toward the left of the lane.  She then saw a truck coming around the bend “at speed”.  It was sitting on the white lines and crossed over them “a fraction.”  She could see the driver and saw him turn the steering wheel to the left, as if to get off the lines.  Then the collision occurred.  She thought the bus had slowed to about 60kmh.
  2. [47]
    In cross-examination, Ms Angus said she thought the truck’s front wheel was about two or three inches over the central lines when she first saw it.
  3. [48]
    It was pointed out to her that, in a statement made at the scene, she had said that the truck was travelling at at least 120kmh.  She said she realised later that that was an exaggeration.  She was asked if she was sure about that speed and she said, “Maybe not.”  She said the occasion was traumatising and she was not thinking straight at that time, in giving the speed.
  4. [49]
    Ms Angus was asked to identify, from the dash camera footage, where the truck was when its tyre was over the white lines.  She said it was at about 1:12:28 on the counter.  She said that, from her perspective, in her car, she could see that the tyres were over the lines.

Mark Cantlon

  1. [50]
    Mark Cantlon was riding a motorcycle behind Ms Angus’ car.  He said that, as they approached the bend, the bus, the car and he slowed to take the bend.  He heard a noise and then saw a truck coming around the bend.  It seemed to him to be going fast and it was leaning and over the centre white lines as it came around the bend.  He thought the truck was going to roll.  He could see the driver, who appeared to be turning the steering wheel to the left, as if to correct where the truck was going.  He then saw the trailer come across to the other side of the road and hit the bus.  The bus appeared to be pushed backwards.
  2. [51]
    In cross-examination, Mr Cantlon at first said he thought that the front of the truck was about a metre over the centre lines when he first saw it.  He was then shown the dash camera footage, after which he said it may have been less, but he saw some part of the truck over the centre lines.  He was then asked if he saw the driver move the wheel to the left just as the truck was beside the bus, with which he at first appeared to agree, but later was not certain.  He also accepted that, although he thought the truck was going to roll, it may have been an impression caused because the driver’s cabin was separated by air compression from the chassis.

Expert witnesses

  1. [52]
    The Crown called the following witnesses to give factual and expert evidence about their investigations after the collision.

Neil James Campbell

  1. [53]
    Neil Campbell is a Senior Constable in the Queensland Police Service and was the investigating officer in this matter.  He was a member of the Springwood Forensic Crash Unit at the time and has been a motor vehicle accident investigator for over 20 years. 
  2. [54]
    Snr Const Campbell attended at the scene of the collision later that morning.  He produced a number of plans that he had prepared after surveying the approaches to and the scene of the collision, including the final resting places of the bus and the truck and trailer.  He also identified, marked on the road and showed to scale on the plans the location and number of tyre marks that he said were those of the trailer skidding, together with what he called a heavy vehicle tyre mark that he said was caused by the front right hand side wheel of the truck as it rounded the bend.[22]  Snr Const Campbell also produced an aerial photograph of the general location, on which he had superimposed the locations of a traffic advisory speed sign facing traffic approaching from the north and warning chevron signs on the bend.[23]
  3. [55]
    Mr Gallaty had a dash camera installed on the windscreen of his truck.  Snr Const Campbell arranged for the relevant video footage from the camera to be recovered and for analysis of that footage to be undertaken by an appropriate expert, Timothy Woodcock, to determine the average speeds at which the truck and trailer were travelling on approach to and while negotiating the bend in the road up to the time of collision.  Those speeds were overlaid on one of the plans of the scene prepared by Snr Const Campbell.[24]
  4. [56]
    Snr Const Campbell had also arranged for data from a trip data recorder on the bus to be downloaded, from which it was possible to determine the bus’s speeds approaching and in the bend, up to the moment of the collision, using GPS data from the recorder.  He produced a copy of the aerial photograph on which the track and speeds of the bus were superimposed.[25]  That showed that, from about 9:09:50,[26] the bus travelled at about 80kmh along the straight section of road between Curlew Court and the bend (about 575 metres).  It slowed to 67kmh before reaching the start of the bend at 9:10:17.  At that point, the bus quickly slowed to 46kmh, recorded at 9:10:18 and 9:10:19.  At 9:10:20 it slowed to 16kmh, then at 9:10:21 to 7kmh and 0kmh, at which time the recording stopped.
  5. [57]
    Snr Const Campbell also produced photographs of the scene and surroundings, photographs of the truck and bus taken later, the footage from Mr Gallaty’s dash camera and the recording and transcript of an interview of Mr Gallaty that he conducted on 31 July 2017.[27]  He pointed out a number of things that he said appeared from the photographs and the dash camera footage.
  6. [58]
    The photographs – and Snr Const Campbell’s observations of the tyres of the truck and the trailer on the day – showed that many of the trailer’s tyres had earth and vegetation stuck to them, as well as having substantial scuffing or skid marks.  Snr Const Campbell concluded from those facts that the tyres of the trailer had locked up and skidded.  However, the tyres on the left side of the third axle did not have such debris attached to them, which indicated to him that they had continued turning even after the other wheels had locked up.[28]
  7. [59]
    Photographs 3 and 34 of exhibit 8 show the road surface in the southbound lane in the 30 metres or so before the location where the bus came to rest.  Snr Const Campbell marked on the road, as shown in photograph 34, the tyre marks that he said appeared to him to have been produced by Mr Gallaty’s truck and trailer leading up to the collision.  Most of the tyre marks appear to be skid marks.  It is not contentious that they are marks made mostly, if not all, by the trailer after its wheels locked up and it started sliding. 
  8. [60]
    Snr Const Campbell also pointed to one other mark, fainter than the skid marks and that started about 10 metres before the skid marks and stopped about the same distance after the first of the skid marks began.  He said that that mark was a heavy vehicle mark made by the front right (steer) tyre of the truck as it was going around the bend.  He said that it indicated that the truck was travelling at sufficient speed that the weight of the vehicle was transferred onto that outside wheel, deforming the tyre profile to the point where the outer edge of the tread surface was in contact with the road surface, producing the mark on the road and a corresponding black mark on the outside rim of the tyre (shown in photographs 15 and 16 of exhibit 8). 
  9. [61]
    Snr Const Campbell also inspected the truck on 25 November 2016, at the towing yard to which it had been taken.  On that occasion the tipper of the truck was raised and he noticed that the front right hand drive tyre had a similar mark on it (shown in photograph 1 of exhibit 9).  He concluded that it was also a heavy wheel mark and, as there was such a mark on the drive tyre as well as the steering tyre, there had been a lot of lateral force on the truck.[29]
  10. [62]
    Snr Const Campbell said that such a mark, both on the road and on the tyres, would not remain in place for long.  He considered that they had been made recently and he concluded that they were made due to the speed at which the truck was travelling around the bend.  Those facts satisfied him that the truck had travelled at all times in the southbound lane, whereas the skid marks showed that the trailer skidded across the centre lines into the northbound lane.
  11. [63]
    Snr Const Campbell later said that he had determined that the heavy wheel mark on the road was between 0.80 and 0.87 metres from the centre of the centre lines on the road.  The truck was 2.5 metres wide.[30]  The southbound lane was three metres wide (from the centre of the centre lines to the middle of the left edge line).  The position of the heavy wheel mark on the road indicated that the left hand tyres of the truck were over the left edge line of the road, but otherwise the truck was well within its lane.[31]  He also agreed that there was no evidence that Mr Gallaty himself had braked heavily at any time before the collision, nor that he had made any sudden steering manoeuvre to avoid a collision.  Rather, he maintained a course around the bend, with the right side of his truck within his lane at all times.
  12. [64]
    Snr Const Campbell was asked, in cross-examination, whether he could exclude the possibility that the mark on the steering tyre had been made on an earlier occasion.  He said he believed it was made on the occasion of the collision because it was fresh, such marks on the road and on the tyre tend to fade quickly, the mark on the tyre was only consistent with heavy cornering and it matched the heavy vehicle mark on the road.  When it was put to him that he could not exclude the possibility that the marks on the tyres occurred earlier that morning, he said that he was satisfied that they did not but, as he was not in the truck for the entire day’s work, he could not exclude that possibility.  He also agreed that, if the truck had gone around a similar left hand bend earlier that morning, that may have caused the marks on the tyres.[32]
  13. [65]
    Snr Const Campbell was also cross-examined about the position of the truck in its lane by reference to the dash camera footage.  He agreed with the proposition that it did not appear from the footage that the truck was hugging the left side of the road as it rounded the bend.[33]

Robert Tilney

  1. [66]
    Robert Tilney is the National Technical Product Manager for Mercedes Benz Trucks Australia.  He produced three reports,[34] which he supplemented with oral evidence.  He gave his evidence by video link to the court room.  He is a heavy vehicle technician and a Mercedes Benz certified diagnosis technician.  There was no challenge to his expertise to give the evidence he did.
  2. [67]
    Mr Tilney described how the ABA system and the SR system in Mr Gallaty’s truck operate. 
  3. [68]
    ABA is a radar-based collision prevention system.  It is operated by short range and long range radar sensors in the front bumper of the vehicle.  It scans 15 degrees each way from its centre point up to 150 metres ahead (creating an arrow-like detection range).  The system modulates between those sensors 30 times a second and identifies moving or stationary vehicles or other objects within those ranges.  The radar sensors detect vehicles in the lane in front of the truck and in the opposite lane (that is, oncoming vehicles), but the system calculates the speed at which the truck is approaching the objects and (having regard to the speed of the truck) determines whether the object ahead is stationary or travelling forward in the same direction as the truck or is an oncoming vehicle.  The system then determines whether there is a risk of collision with the object in front of the truck and, if it determines that there is such a risk,[35] it will take appropriate action to alert the driver and, if necessary, to brake the truck and trailer to avoid a collision.  However, it will not react in that way to oncoming vehicles.
  4. [69]
    ABA can identify that a vehicle within its range is oncoming from a number of factors, but particularly two.  First, that vehicle would be approaching at significantly greater speed than that at which the truck is travelling and therefore must be moving in the opposite direction to the truck.  Secondly, the truck has a steering angle sensor from which the ABA can determine its direction of travel and thus whether it is turning out of the path of the oncoming vehicle. 
  5. [70]
    Mr Tilney was not asked directly what ABA will do if it detects an oncoming vehicle travelling wrongly in the lane of the truck, but he was clear that the system will not react to an oncoming vehicle.  I infer, therefore, that it does not react to oncoming vehicles in any instances.  This would appear to be necessary to avoid ABA mistakenly identifying an oncoming vehicle in another lane as being in the truck’s lane – for example, when at an acute angle on a bend – and reacting accordingly, which might cause a dangerous situation.
  6. [71]
    Mr Tilney said that, when ABA detects a danger ahead (that is, a stationary or slower vehicle in the truck’s lane that the truck is approaching at a speed risking collision), it will take action in three stages.  Each stage will last a minimum of one second before initiating the next stage.
    1. (a)
      First, it will sound an intermittent audible alarm and show a warning indicator on the dash display, at the same time muting the radio and hands free systems.  It may also partially actuate the brakes (up to 30%).
    2. (b)
      Secondly, if the driver does not respond appropriately, while continuing the intermittent alarm and the dash warning ABA will actuate up to 50% braking.
    3. (c)
      Thirdly, if no driver response is detected and the threat of collision remains, ABA will actuate emergency braking until the vehicle comes to a complete stop.
  7. [72]
    ABA actuates the brakes on both the truck and the trailer.
  8. [73]
    ABA will not operate, relevantly, if there is an ABA system error, a malfunction in the ABS or if vehicle air suspension is not at driving level.[36]  Mr Tilney identified that analysis of the truck’s systems revealed that two errors were recorded.  One indicated that, at some time since the data had last been erased, the truck had been driven out of level suspension.  That causes the ABA system to shut down.  It will then cause yellow lights and the message, “ABA not active” to appear on the dash display when the ignition is on.  It is not possible to tell, from the error codes, when this occurred, nor whether ABA was active at the time of the collision.
  9. [74]
    The other code indicated that communication between the radar and the ABA control unit had stopped, so the ABA system was not operative.  Again, that could have been at any time since the data was last erased and did not indicate that the ABA system was not active at the time of the collision.
  10. [75]
    Mr Tilney had also viewed the dash camera footage.  He said that there was no vehicle or object – no risk – in front and in the direction of travel of the truck and therefore there was nothing that, in his opinion, would trigger ABA to operate.  When asked, in cross-examination, whether he could rule out that ABA may have activated, he replied that he could not say 100%, but he was 99.9% sure that ABA would not have been activated by the radar recording the oncoming bus, because of the reliability and the frequency of the radar system.[37]
  11. [76]
    Mr Tilney also described the operation of the stability control system.  It detects instabilities that could lead to skidding, jack-knifing or tipping over of the truck and trailer combination.  It attempts to counteract them by braking specific wheels of the truck, actuating the trailer brakes and changing the engine torque.  It identifies potentially dangerous situations by using the steering wheel angle sensor, the wheel speed sensors and a control module called the vehicle dynamic control module to determine the driver’s proposed direction of travel, the truck’s lateral acceleration and its yaw.  If it detects impending understeer, oversteer or tipping, it will intervene to re-stabilise the vehicle by targeted braking of individual wheels of the truck and, in the case of tipping, by disabling the accelerator.  The SR system operates within milliseconds of detecting a critical situation.
  12. [77]
    Oversteer is when a vehicle is going around a bend at excessive speed, so its drive axles will tend to swing out to the opposite direction to the bend, it may lose traction in its rearward wheels and commence to slide at the rear of the vehicle.  Understeer is when the driving wheels threaten to lose traction as they are turned into the bend, leading to them potentially sliding.  A tipping risk arises when going around a bend with a higher centre of gravity than is acceptable for the physical limits of the bend.
  13. [78]
    In any of these cases, if the driver failed to observe the correct speed for the bend, having regard to the operating conditions of the vehicle, if a critical situation was active then the SR system would react to that situation to try its best to minimise or reduce the effects.  If SR actuated, a light would flash on the dash display, but no audible alarm would sound.
  14. [79]
    Mr Tilney said that, as the trailer in this case did not have ABS brakes, if SR or ABA actuated the trailer’s brakes, it could lead to them locking the wheels and inducing the trailer to slide into the opposite lane.

David Oliver

  1. [80]
    David Oliver is a Sales Engineer and Technical Sales Manager for Knorr-Bremse Australia, a subsidiary of a German company that primarily develops and manufactures braking systems for rail and heavy commercial vehicles.  He has been responsible for developing a number of heavy vehicle braking systems for trucks of various makes (not including Mercedes Benz trucks) and he has tested the dynamics of large trucks in order to calculate the parameters within which there may be understeer, oversteer and rollover thresholds.  He gave oral evidence, having also provided a short report,[38] in which he reviewed and commented on a report that had been produced on behalf of the defendant by Mark Sculthorpe,[39] as well as making some additional points.
  2. [81]
    Mr Oliver gave similar evidence to Mr Tilney about the way that ABA works and the circumstances in which ABA will acuate.  In particular, he said that it will not react to oncoming vehicles.  He also gave evidence that, where a truck has ABS but the trailer it tows does not, in a heavy application of brakes the ABS of the truck will control the truck’s braking so as not to lock the wheels or lose directional control, but the trailer will have a predisposition to lock the brakes.  If ABA causes a heavy braking application, it could cause the trailer to lock up.
  3. [82]
    Mr Oliver also said that, if SR actuated rather than ABA, that would happen in milliseconds and be unlikely to be detected by the driver.  It can apply the brakes of the truck heavily, but the ABS would prevent the truck’s wheels locking up.  However, it would send a signal to the trailer to apply its brakes and, if the trailer does not have ABS, there is a high possibility that it will lock up.  This is particularly the case if it is unladen, because the brakes are designed to stop a fully laden trailer travelling at 80kmh.  He said that he had done physical testing of truck and trailer combinations, pushing them to their limits to understand at what stage they become uncontrolled.  Only a few kilometres an hour in speed can make a huge difference to the stability of a truck or a truck and trailer combination, making it unstable.

Peter Briggs

  1. [83]
    Peter Briggs is an auto-electrician who has been employed by Daimler Trucks in Brisbane for 27 years.  He is very familiar with Mercedes Benz trucks, including the model owned by Mr Gallaty.
  2. [84]
    Mr Briggs described the “Telligent” braking system of those trucks, which comprises ABS, ABA and SR.  He described how the ABA and SR systems work and, in this respect, his evidence was mostly similar to that of Mr Tilney and Mr Oliver.  It is relevant, however, to refer to some of his descriptions of how they operate. 
  3. [85]
    He said the SR system knows, by the position of the steering wheel (communicated by the steering angle sensor), what the expected yaw rate is for the path of the truck, compares that to the actual yaw rate (communicated by the yaw rate sensor) and can adjust the yaw by applying one brake to correct either an understeer or an oversteer or a potential rollover.  If the truck is towing a trailer and is over-steering, SR will apply pressure to the trailer’s brakes to stop it from pushing the truck further into an increased oversteer condition by jack-knifing or just pushing the back end around.  So, by applying a “bit more” brake pressure, it can drag the truck back into the correct yaw that was expected having regard to the steering wheel sensor.
  4. [86]
    Mr Briggs was not sure if ABA would operate when it detected an oncoming vehicle.  It was put to him that he had given a statement in which he had said that ABA “should not respond to an oncoming vehicle when cornering.”  In answer to the question what he meant by “should not”, he said that he was simply quoting from the manual.[40]  When asked if it can respond to an oncoming vehicle, he said he did not know. 

Antony Cheyne

  1. [87]
    Antony Cheyne is the Application Engineering Manager for WABCO (Australia) Pty Ltd.  That company is the manufacturer of the radars used in the ABA function of Mr Gallaty’s truck.  He is a heavy equipment automotive engineer with considerable experience in designing, fitting, testing and certifying heavy vehicle braking systems.  At WABCO, he is responsible for installation, testing and certification of electronic systems such as ABS, electronic braking systems, electronic stability control and autonomous emergency braking systems (ABA).  His role includes physically testing heavy vehicles on test tracks, including taking them to and beyond the point of rollover in order to calibrate rollover systems to particular vehicle characteristics.
  2. [88]
    Mr Cheyne prepared a report[41] commenting on aspects of Mr Sculthorpe’s report, supplemented by oral evidence.  He gave his evidence by video link to the court room.  He commenced his report by making the following comment:

the combination of truck and trailer involved here, is completely legal and compliant for use in Australia.  It is also potentially dangerous to operate, particularly in an unladen state, or when road surface friction is low.  This is due to the fact the trailer brakes must be capable of stopping a fully laden unit, so when unladen, the trailer is overbraked, which means locked wheels are almost inevitable, with resulting loss of directional control.

  1. [89]
    He confirmed orally that, where the trailer is unladen, it is very easy to cause a lock up if the brakes are applied by any source (that is, electronically or by the driver).
  2. [90]
    Mr Cheyne said that ABA detects, but does not react to, oncoming vehicles.  Both in his report and orally, he gave similar descriptions of the working of SR[42] and ABA to those of Mr Tilney and Mr Oliver. 
  3. [91]
    Mr Cheyne had been informed that, when Mr Gallaty’s trailer was inspected after the collision, it was discovered that a pin (known as a clevis pin) was missing from the left side brake on the third axle.  He said that, without that pin, the automatic adjuster for that brake would not work.  That would cause an imbalance of brake force across the axle, which would then have a tendency to pull the axle to the right when the brakes were operated.  On the other hand, in that state the wheel missing the pin could be expected to continue rotating, rather than to lock up, notwithstanding the application of the brakes.  That would, to a minor extent, counteract the opposite force to the right from the right hand brake.  However, especially while travelling around a left hand bend, the centrifugal force would also give the trailer a tendency to pull to the right, so the still rotating left wheel would be unlikely to have any substantive effect to overcome that drift.  Overall, Mr Cheyne considered that the missing pin would not have made an enormous difference to the situation, even though the rotating wheel would be working against the overall drift to the right.

Timothy Woodcock

  1. [92]
    Timothy Woodcock is a senior forensic recording analyst with the Queensland Police Service.  He produced two reports[43] and also gave oral evidence.  He analysed the footage from Mr Gallaty’s dash camera and, using a technique known as videogrammetry, he determined the average speed of the truck and trailer between the various points shown on exhibit 5.  In simple terms, this was done by locating clear points or landmarks on the video by viewing it frame by frame, identifying those landmarks and the distances between them on an aerial mapping service known as Nearmap, identifying the time it took for the truck to travel between those points and thereby calculating the average speed at which the truck travelled between the points, allowing for known error factors in the video frames and the Nearmap photographs.[44]  He then produced a graphic depiction of the distances and speeds that he had calculated.[45]
  2. [93]
    Mr Woodcock’s methodology and results were not challenged by counsel for the defendant.  I find them convincing and I accept his evidence.
  3. [94]
    The net results of Mr Woodcock’s analysis are summarised in the following table. 

Points

Distance (metres)

Time (seconds)

Average speed (kmh)

Lowest average speed (kmh)

A to B

49.88

2.067-2.223

83.665 +/- 3.745

79.92

B to C

48.9

2.200-2.333

77.747 +/- 2.763

74.984

C to D

24.8

1.333-1.467

63.953 +/- 3.817

62.136

A to D

123.58

5.733-5.900

76.503 +/- 1.281

75.222

  1. [95]
    The times and speeds of travel are expressed in terms of a range.  Mr Woodcock explained that each range allowed for a margin of error based on variables that could not be determined with certainty (for example, that Nearmap was accurate to within 0.3 metres).  Mr McDougall submitted that I should give Mr Gallaty the benefit of the margins and, if I accept Mr Woodcock’s evidence, find that the average speeds at which he was driving the truck between the various points were the lowest speeds calculated by Mr Woodcock.  The Crown accepted that proposition, as do I.  For that reason I have included the fifth column in the table, setting out the lowest speeds based on those calculations.
  2. [96]
    Comparison of exhibits 3, 5, 7 and photographs 3 and 4 in exhibit 8 indicates to me that the collision occurred just after the truck passed point C.  The bus came to rest, diagonally across the road, between points C and D.  In his address to me, Mr McDougall agreed with this proposition.[46]

Andrew McLaren

  1. [97]
    Andrew McLaren is a vehicle inspection officer with the Queensland Police Service.  He is an A grade motor mechanic and a licensed examiner of motor vehicles.
  2. [98]
    Mr McLaren examined Mr Gallaty’s truck and trailer on 21 November 2016, at the yard to which they had been taken after the collision.  His examination included the braking system of each vehicle.  He concluded that the brake system and the steering components on the truck were all operating correctly, with no faults.  He expressed the opinion that the truck was in a satisfactory mechanical condition and no defects were found which would have contributed to the collision (in the circumstances described to him).
  3. [99]
    On the trailer, he noted that the third axle left wheel brakes were out of adjustment and, on the fourth axle, the left brake chamber was larger than the other chambers on all axles.  He considered both those conditions to be unsatisfactory.  Apart from damage caused by the collision, he otherwise found no faults in the trailer.
  4. [100]
    Mr McLaren said that the problem with the third axle left brake was that the push rod was extended out, giving reduced efficiency to that brake.  That was because the clevis pin connecting the automatic adjuster was missing.  Mr McLaren pointed out the relevant parts in photographs of the axle forming part of exhibit 27.  He said that, in an emergency braking situation, that would cause a minor reduction in brake efficiency and in the overall efficiency of the combination vehicle, but it would not make a great difference to the overall vehicle (he went on to describe the difference as miniscule).  But, if the brakes were locking up, it would actually operate to reduce the instability caused by locking brakes, because the wheel would be likely to keep turning and to reduce the slide caused by the other locking brakes.  It may help control the back of the vehicle.  The missing pin would have no effect on the roll of the trailer.
  5. [101]
    Mr McLaren was also asked about the effect of the difference in sizes of the brake chambers on the fourth (rear) axle of the trailer.  By reference to photograph 7 of exhibit 27, he showed that the left chamber was larger than the right chamber on that axle.  The brake chambers relate only to the operation of the foot brake, not the emergency or park brake, and would also react to application of the equivalent of the foot brake by the stability control system.  He said that the larger size of the left chamber would make it more efficient than the right chamber (and than the chambers on the third axle, which were both the same size as the right chamber on the fourth axle).  The effect would be that, in an emergency braking situation, the left brake on the fourth axle would lock slightly earlier than the other brakes, but only by milliseconds.  He said that he did not believe that that difference would have contributed to the cause of the collision.

Siva Jeevaratnam

  1. [102]
    Siva Jeevaratnam is a senior traffic engineer employed by the Department of Transport and Main Roads (TMR), having a degree in civil engineering, including traffic engineering.
  2. [103]
    Mr Jeevaratnam undertook an investigation of this collision for TMR.  He provided three reports for the purpose of this prosecution,[47] in which he commented on Mr Sculthorpe’s report and answered some questions.  He also gave oral evidence.
  3. [104]
    Mr Jeevaratnam described how an advisory speed for approaching a curve in a road is determined.  That speed is the maximum speed at which a curve may be comfortably negotiated under good road, traffic and weather conditions.  That speed is determined in accordance with Part 2 and appendix C of the Queensland Government Manual of Uniform Traffic Control Devices (MUTCD).[48]  Based on factors determined in that manual and elsewhere, the curve in the Waterford-Tamborine Road where the collision occurred is classified as sub-standard.
  4. [105]
    The advisory sign facing Mr Gallaty before this curve indicated a sharp left bend and a speed of 40kmh.  TMR does not have records of when that sign was installed and what tests were done to determine that speed.
  5. [106]
    The MUTCD has a prescribed method of determining an advisory speed, based on site investigation and measurements and a ball bank indicator or similar testing device.[49]  That device measures the centripetal force of a vehicle negotiating a curve at a specific speed, from which the advisory speed is determined by reference to a pre-determined acceptable maximum centripetal force.  The measurement devices take account only of the speed of the vehicle in which they are placed and the road alignment, including the angle of the curve and the cross fall of the road.[50]
  6. [107]
    Mr Jeevaratnam said that, after this collision, TMR reviewed the site and decided to make some changes to the road and roadside, intended to make it safer.  He produced four drawings[51] that showed the design of the road before the collision, the changes that were made and the design after the collision.  The works included removing some of the vegetation on the sides of the approaches to the curve and the curve itself (to improve visibility for approaching vehicles) and widening the lanes and the shoulders of the road through the curve.  The radius of the curve was not changed, nor was the cross fall.
  7. [108]
    After the roadworks were completed, Mr Jeevaratnam conducted a fresh assessment of the advisory speed, using manual and digital ball bank indicators.  This resulted in a new advisory speed of 60kmh.  Mr Jeevaratnam explained how he reached that conclusion.  The actual advisory speed is determined solely by the objective factors specified in the MUTCD, although he said that he selected the speeds at which to drive through the curve during the tests as speeds at which he personally was comfortable driving through it.  He tested it at 50, 60 and 70kmh.  The latter speed was well outside the permissible range of advisory speeds.  Importantly, in determining that speed, the cross fall and the road alignment had not been altered from the road as it existed at the date of the collision.  The improvement to visibility was irrelevant to determining the advisory speed.  I infer from those facts, in favour of Mr Gallaty, that in fact 60kmh was a more appropriate advisory speed at the date of the collision.

Other Crown evidence

  1. [109]
    The Crown tendered a video recording and transcript of a roadside interview of Mr Gallaty by a police officer, Constable Benjamin Kruys, who attended at the scene after the collision.[52]  Constable Kruys gave short additional evidence.  The Crown also tendered a video recording and transcript of Mr Gallaty’s formal record of interview with police on 31 July 2017.[53]  These interviews will be discussed below.
  2. [110]
    The Crown also called two witnesses who were involved in the maintenance of Mr Gallaty’s truck and trailer in the months leading up to the collision.

Mark Graham

  1. [111]
    Mark Graham is managing director of Progressive Diesel Maintenance, a company that undertook the maintenance of Mr Gallaty’s truck and trailer.  He produced a number of tax invoices from his company to Mr Gallaty for repair and maintenance of the truck and trailer from August 2015 to October 2016.[54]  He gave evidence by telephone to the court room.
  2. [112]
    One invoice showed that all the slack adjusters on the trailer were replaced on 27 July 2016.[55]  Another invoice showed that, on 23 August 2016, the company checked sticking brakes on the left hand rear axle of the trailer, replaced the brake chamber and checked all adjustments on the trailer brakes.  Mr Graham said that, in checking adjustments, every slack adjuster would be checked so that all the brakes were operating evenly.
  3. [113]
    Mr Graham said that he would expect that the mechanic doing the job on that occasion would have noticed if a clevis pin was missing.  The mechanic should also have noticed if a brake chamber was a different size to the others.  They should not be different sizes, although it is a common occurrence for that to happen.  He said that, if there were different size brake chambers, that could potentially affect the braking performance of the trailer.  Although they would still operate at the same time, there would be greater braking force from the larger chamber, which could potentially cause a lock up of the wheels, but it would probably only be noticeable in extreme braking applications.  He agreed that, if ABA or stability control actuated a braking event on the trailer brakes, the imbalance between the different brake chambers would potentially cause a lock up independent of anything the driver did in terms of braking.  It would lock up the wheel with the bigger brake chamber but would not affect the other wheels.[56]
  4. [114]
    Mr Graham also produced the job card for the work done on 23 August 2016, together with an invoice dated 23 August 2016 to Mr Gallaty from Gibbs Truck & Trailer Parts.[57]  The invoice included the cost of supply of a CBC30.30S spring brake chamber.  Mr Graham said that any brake chamber would have been bought from that company, which is next door to Mr Graham’s workshop.
  5. [115]
    The work required was relevantly described on the job card as, “Check N/S rear brake sticks intermittently replace brake chamber if required.”  The mechanic was shown to be BW, who Mr Graham said was Brayden Walker.  He had recorded the following as the work done on the brake:

replaced LH rear axle brake chamber and adjusted all brakes on same axle.

Brayden Walker

  1. [116]
    Mr Walker is a heavy vehicle mechanic working for Progressive Diesel Maintenance.  He gave evidence by telephone to the court room.  He said that, in August 2016, he was in the late stages of his apprenticeship.  He was shown the job card for the work done on Mr Gallaty’s trailer on 23 August 2016 and the tax invoice for the brake chamber.  He confirmed that he was involved in the work and he wrote the details of the work done.
  2. [117]
    Mr Walker was shown the photographs of the rear axle brake chambers in exhibit 27.  He confirmed that he would have installed the larger chamber.  He also said that, when replacing the brake chamber, if there was a missing clevis pin for a brake, he would have noticed and replaced it, whichever axle it was missing from.[58]

Defendant’s evidence

Preliminary matters

  1. [118]
    For convenience, I have decided to summarise consecutively all the statements and evidence given by Mr Gallaty.  I make it clear, though, that his interviews with the police were tendered by the Crown, not the defence.
  2. [119]
    Mr Gallaty did not have to give or to call evidence, but he chose to do both.  That he has done so does not mean that he has assumed a responsibility of proving his innocence.  The burden of proof has not shifted to him.  His evidence, including that of the other witnesses called on his behalf, is simply added to the evidence called for the Crown.  The Crown has the burden of proving each element of the alleged offence beyond reasonable doubt, and it is upon the whole of the evidence that I must be satisfied beyond reasonable doubt that the Crown has proved the case before Mr Gallaty may be convicted.
  3. [120]
    It is not a question of me making a choice between the evidence of the Crown’s witnesses and that of Mr Gallaty and his other witnesses.  The Crown case depends upon me accepting that the evidence of the Crown’s principal witnesses was true and accurate beyond reasonable doubt, despite the evidence of Mr Gallaty and his other witnesses.  I do not have to believe that Mr Gallaty is telling the truth before he is entitled to be found not guilty.[59]
  4. [121]
    Where there is defence evidence, usually one of three possible results will follow. First, I may think the defence evidence is credible and reliable and that it provides a satisfactory answer to the Crown’s case, in which case I would find the defendant not guilty.  Secondly, I may think that, although the defence evidence was not convincing, it leaves me in a state of reasonable doubt as to what the true position was.  If so, I would find the defendant not guilty.  Thirdly, I may think that the defence evidence (or some of it) should not be accepted.  However, if that is the case, I must not automatically conclude that the defendant is guilty.  I must set to one side the evidence I do not accept and go back to the rest of the evidence and ask myself whether, on consideration of all the evidence that I do accept, I am satisfied beyond reasonable doubt that the Crown has proved each element of the offence charged.[60]

Roadside interview

  1. [122]
    As I mentioned above, Mr Gallaty was interviewed by Constable Kruys at the scene of the collision.  The interview, which was recorded, began shortly before 10.00am and lasted a little under half an hour (with some interruptions).  I set out below what I consider to be the most relevant parts of that interview.
  2. [123]
    When asked what had happened, Mr Gallaty said he was travelling along the road at normal speed.  The following exchange then occurred:[61]

GALLATY:  Come ‘round the corner, and, ah, like I was trying to explain to you, the, this truck’s got safeties on it, like, stability control, and all that.

CON KRUYZ:  Yeah.

GALLATY:  Right, right.  And what happens is i-, it’ll just lock, it’ll just put the brakes on.

CON KRUYZ:  Mhmm.

GALLATY:  Like, you don’t want ‘em to come on, it’ll put the brakes on.

CON KRUYZ:  Yep.

GALLATY:  And when it put the brakes on, coming to that corner, the trailer locked up and swung out and collected the bus.

CON KRUYZ:  Okay.  Ah, when I was coming around the corner,[62] you hit the brakes on, hi-, hit the brakes?

GALLATY:  No, I touched the brake coming into the corner.

CON KRUYZ:  Yep.

GALLATY:  But as I come ‘round the corner, right --

CON KRUYZ:  Yep, you were off the brakes.

GALLATY:  Yeah, and the, and the trailer--

CON KRUYZ:  [INDISTINCT] --

GALLATY:  [INDISTINCT] yeah, the truck puts the brakes on, if it thinks, it’s got like a safety margin in it, right, if it thinks you’re going too fast or you’re unstable, it’ll put the brakes on, okay, put it on really hard.  And what it did, it [INDISTINCT] hard, the trailer slid out.  You can see this-, what’s happened.

CON KRUYZ:  Mm.  The--

GALLATY:  Like, I was under control--

CON KRUYZ:  What do you call it, the brake safety--

GALLATY:  The truck--

CON KRUYZ:  Mechanism, or?

GALLATY:  Yeah.  As far as I was concerned, I was under control, coming into the corner.  It thinks it’s going too fast, and it just slams the brakes on.  It’s happened to me a few times before.  Like, a lot of the time, I switch it off, I wish I had this time.

CON KRUYZ:  And subsequently the trailer--

GALLATY:  Slid out.

CON KRUYZ:  Slid out.  To which way?

GALLATY:  Toward the bus, to the right hand side.

  1. [124]
    When asked what speed he was doing, Mr Gallaty said:[63]

I didn’t look, but I think just doing the speed limit, whatever that is, about eighty.  …  to tell you the truth, I really don’t know, but I would say in an eighty zone I’m doing around eighty.  …  I just know that I wasn’t going stupid.  I always stay within the limit, all the time.  Whatever the limit was going I was staying with it.  Just backing off coming into the corner.

  1. [125]
    He was asked where his truck was when he first saw the bus.  He said he thought he was probably just at the corner.  He thought that, coming into the corner, he applied his brakes.
  2. [126]
    He was asked what he thought had caused the accident to happen.  He responded:[64]

[INDISTINCT] coming into the corner, I didn’t think there was a drama, but as I stated to you, the safety mechanism … engaged and locked the brakes up.

  1. [127]
    He said he could not do anything to avoid the accident once the brakes locked up.  He saw the trailer slide out, looking in his rear view mirror.
  2. [128]
    He was asked how well he knew the road.  He said he used it reasonably often, about once or twice a week, or a couple of times a month.[65]  When asked again why he thought the incident had occurred, was it the braking mechanism, he said:[66]

Well, yeah.  Safe, the s-, the safety system that’s on the truck came on and locked up the trailer brakes going around the corner.

Formal interview

  1. [129]
    Snr Const Campbell interviewed Mr Gallaty at the Coomera Police Station on 31 July 2017.  The interview lasted about one hour and was recorded on video.  The interview was later transcribed.[67]  I set out below the most relevant parts of that interview.
  2. [130]
    Mr Gallaty gave a history of his experience in driving trucks and his ownership of trucks.  He explained where he was driving from and to on the day of the collision. He was asked what part of his trailer hit the bus and gave this response:[68]

I just assumed, well I, I guess I um, when that um safety mechanism, whatever, whichever it was, it just, the alarm just went straight on like as I was coming into that corner.  I was, as I said I’d just braked up, hit the brake for the corner and then sort of immediately after that, not long after that it just, this alarm come on and bells and whistles and carrying on.  And ah, I could feel like the truck braking and as the bus, it all happened so quick, ‘cause the bus would’ve came on pretty quick.  And as it went past I sorta, you know?  I was just going, I was just going around the corner.  …  It’s like, I didn’t understand what the hell was going on here.  …  And because, because of what that, you know, as I said, I was just a passenger once that, once that alarm come on and, and the truck put the brakes on, I didn’t touch anything.  …  The last thing you do, you slam the brakes on going around a corner.  And it’s done it and I just couldn’t believe it.

  1. [131]
    Mr Gallaty went on later to say:[69]

I couldn’t tell you the location of the bus  …  I just, it just seemed, like we were passing like, you know?  Just passing normally and then in that instant  …  and the, the truck initiated the brakes  …  full on and I just didn’t have any control.  I was trying to get, when it ha-, sorta happened, I was just trying to pull the truck off the road.  …  Nothing would’ve happened if those brakes didn’t go off.

  1. [132]
    Mr Gallaty said that he travelled on that road maybe weekly and he agreed that he was familiar with it.  When asked if there was any issue with the road surface, he said it was not a good road, it was narrow and bumpy.  He confirmed that he thought he was doing around 80kmh before the incident.
  2. [133]
    He was asked again about the alarm going off.  It was put to him that he had said that, as he was coming to the bend, the alarm went off.  He said the following:[70]

I, I don’t know exactly when it happened.  It was like  …  when the bus appeared, that’s to me, that’s what’s triggered and I assumed, you can tell me different, that that’s that brake assist or something’s gone, I’m gonna have a head on, you know, and it slammed the brakes on.  …  I just sorta heard the alarm going off and the bus come up, it just all happened together …  you know?  Like I couldn’t tell you how far or what happened, just  …  seemed to, the bus come really quick onto me and bloody, or seemed that way and … seen it pass me quickly and, and the alarm gone off and, you know, just … instantly, it just all happened.

  1. [134]
    Later, Mr Gallaty said that “the alarm’s gone on and then it’s slammed the brakes on.”[71]  A little later, he was asked at what speed he entered the bend.  He replied:[72]

I couldn’t tell you for sure.  …  So again, I’m just going around the corner, putting me foot on the brake to back off into the corner … as you would coming to a corner and just going around the corner.  That’s all I was doin’, didn’t seem like a drama to me.

  1. [135]
    During the latter part of the interview, another police officer who was present throughout asked some questions.  He challenged some of Mr Gallaty’s conduct on the day of the collision and some of his earlier answers in a manner that Mr McDougall correctly suggested was akin to cross-examination.[73]  Mr McDougall submitted that I should exclude any of Mr Gallaty’s answers to those questions from my consideration.  I did not find that part of the interview to be of any assistance to me in any event, so I do not take it into account.

Evidence in court

  1. [136]
    In his evidence, Mr Gallaty said that he had been a truck driver since about 1989 or 1990.  He had always driven “truck and dogs”[74] with the dogs having respectively two, three and four axles.  He bought the trailer involved in the collision in 2011 and he bought the truck in about 2015.
  2. [137]
    On the morning of 17 November 2016, he had delivered a load of sand in North Maclean, stopped to get a coffee and then drove down to Camp Cable Road, took that road and then turned right into Waterford-Tamborine Road.  He travelled at the speed limit, but he touched the brake coming into the corner.  He attempted to locate where he was when he touched the brake, by marking it on a copy of exhibit 3.[75]  There, he marked the spot where there is a break in the centre line (at the location of a driveway) about 40 metres before the start of the bend.
  3. [138]
    Mr Gallaty was asked about the next thing he remembered after touching the brakes.  He responded:[76]

Next thing was the alarm – my alarm buzzer went off and just quite – like, a beep.  A really continuous, long beep.  I noticed the red line going across the display and I just thought, “What the hell is going on here?”  And then I noticed that – I knew there was a bus coming and I noticed that – in the rear-vision mirror, a semi-trailer coming [indistinct] steering went heavy and everything went – it’s almost – you know, you’re trying to control a truck that’s just slammed its brakes on [indistinct] that’s something that’s, you know, that’s pretty much a shock.  But I’ve – so I’ve just checked where the trailer was because that’s the first – well, second thing you do.  You know you’re not going to hit anything, but you know [indistinct] trailer.  And it was moving out, so I just – as soon I saw it moving out, I thought – I just steered the truck to the left sharply, to try to pull the trailer back in to the truck, so that it wouldn’t, you know, collide with the bus, but it was too late.  The truck had all but just about stopped at this stage, and I put it – I just put my foot on the accelerator to move it up off the road [indistinct] out of the way.

  1. [139]
    He said it was “Maybe a couple of seconds” between when he touched the brake and when the alarm first came on and it was “pretty much straight away” between the alarm sounding and his experiencing a change in the velocity of the truck.
  2. [140]
    After the collision, Mr Gallaty tried to call emergency services but was shaking too much to do so.  He went toward the bus, returned to his truck to get his medical kit and then went to the bus to assist.  He gave the medical kit to someone who was trying to stem Mr Bohlsen’s bleeding and then he went into the bus to support Mr Bohlsen and stop him slipping out of his seat.  After the emergency services arrived, he spoke to Constable Kruys.
  3. [141]
    He was asked what he meant in using the term “the braking mechanism” in his conversation with Constable Kruys.  He said:[77] 

I couldn’t remember the – I know the brake mechanism had two components and – one being the stability control and the other being the ABA.  I didn’t remember the ABA, I couldn’t get it out, so I just kept on – I think I said braking systems and stability control.  You know, like stability control and stuff like that meaning that that was the ABA.  And I just – I could not remember it.

  1. [142]
    Mr Gallaty said that, before that day, he had travelled that road with his truck and trailer about a couple of times a month.  He also related an occasion when ABA had activated the brakes on the highway when a car had suddenly pulled in front of him.
  2. [143]
    Mr Gallaty pointed out, in exhibit 14, the mark on the windscreen made by the suction cup of his dash camera, which he said was pretty much in the centre of the windscreen.  He also said that he had recently measured the distance between the outside edges of the front tyres of the truck:  it is between 2.32 and 2.33 metres.  He was not aware, on the day of the collision, of the missing clevis pin from the trailer, having last greased the braking system about two weeks before the collision.  Nor was he then aware that there were different sized brake chambers on the rear axle of the trailer.
  3. [144]
    Mr Gallaty said that Constable Kruys gave him a card for Snr Const Campbell.  Mr Gallaty rang him within a few days and told him that he thought it might have been the ABA, to which Snr Const Campbell replied, “Do you now?”
  4. [145]
    In cross-examination, Mr Gallaty said he was aware of the 40kmh advisory speed sign, but “I’ve been through there many times and I knew what the curve was like.  …  so I knew the characteristics of the bend.”[78]  He agreed with the proposition that, from his own past experience, he had worked out that he could go faster than 40kmh through the bend.  He thought he was going at about 77kmh around the bend, but he had “done that corner many times before, there’s no dramas with that [particular] truck [indistinct: going] around that corner.”  He agreed that there was on this occasion “because the truck [indistinct: intervened and] took control away from me.”[79]
  5. [146]
    When it was put to him that the road was in poor condition, he said, “It wasn’t a great road” and when it was put that it was a poor road, he said, “Yeah.  Not one of the best roads, no.”
  6. [147]
    He confirmed that he had driven that road about twice a month.  He said usually he did so when the trailer was empty. 
  7. [148]
    When asked if he had no past history of difficulties with braking as between the truck and the trailer, Mr Gallaty said:

I think there was two occasions where I leaned into a corner that [indistinct: stability] controls put a shot of air, like a – just a burst of air into the trailer, and slowed the truck down obviously and I looked in the rear view mirror, it was just [like a:  I could] see a bit of smoke but I had locked the trailer up but just for a second.  But there was no – it was just that, like, it was [indistinct] the road for myself for some reason [emergency: of urgency] – and there was no – no dramas there, which is [indistinct] did it twice, I think.  …  but there was no alarm, it just put a shot of air for a second and [indistinct] trailer and everything, just pulled up a bit, you know?[80]

  1. [149]
    He was asked for more information about each occasion on which that had occurred.  He responded:

I’ve just – yeah, going around – [nothing wrong with the: one was on a] left hand bend [but on the: and one was on a] right hand bend and it just – when [indistinct: I] brake [braked] and went into a corner it’s done its own thing with the [indistinct: stability] control, I assume.  And it’s – it’s like a shot of air or burst of air from under the trailer it seemed like, and you could feel it pulling on the back of the truck and, like, I looked in the mirror, checked it out, it was just a bit of du – smoke coming off the wheel [indistinct].[81]

On each occasion, his trailer was unladen and he assumed that it was the stability control operating. 

  1. [150]
    Mr Gallaty said that he had switched off the stability control occasionally “because the truck’s taken control and taking control out of your hands is not a good feeling, when that happens.”
  2. [151]
    Later, Mr Gallaty agreed that the trailer was difficult to control under severe braking.  He was aware that a strong application of brakes could lock up the trailer, including a strong application of brakes under stability control or active brake assist, although the truck’s brakes would not lock up.[82]  The following exchange then took place:[83]

And you’re aware of the difficulties that might arise as between the truck and the trailer, particularly when it’s unladen?‑‑‑Yep.  It’s no different to what I’ve been used to for years.

So as at the time of the collision, you knew the potential of the trailer to lock on a strong application of brakes?‑‑‑Yeah, that’s why you don’t do that [indistinct] into a corner, you don’t slam the brakes on, especially when there’s no need to and you know you can negotiate the corner quite safely.  And if there is some dramas, most of the time, you’d ride it out.  You wouldn’t slam the brakes on because that’ll happen.

But you knew, from previous occasions, that the stability control activated those brakes which, at least momentarily, locked the brakes of the truck?‑‑‑That did happen to me, yep.

  1. [152]
    A little later, there was the following additional exchange:[84]

Yes.  Okay.  So it would seem though that, on this occasion, the brakes locked up.  Just leaving to one side what activated the brakes, there was an application of the brakes and, because of the ABS/non-ABS combination, the trailer brakes locked up;  correct?‑‑‑Slamming the brakes on is what locked them up.

A heavy application of brakes?‑‑‑Yeah.

But that could happen in any situation, couldn’t it?‑‑‑Yeah, with any truck.  Yeah, that’s right.

Well, you’ve got to be ready for an emergency situation, haven’t you?‑‑‑Well, you don’t induce one.

No, but what happens if a child runs out in front of you?‑‑‑Yeah, you’d have to slam the brakes on.

Right?‑‑‑That’s what didn’t happen.  It was the truck putting the brakes on, not me.  And there was no need for the truck to put the brakes on.  It’s made the wrong decision.  It shouldn’t be taking control off the driver.  There was no need for it to do it, and it did it.

But what – the reality is you were going too fast into this corner?‑‑‑No, I wasn’t.

And as a result, you lost control of the trailer?‑‑‑No, I wasn’t going too fast around the corner, and the result was from the truck initiating the braking, which it didn’t need to do.  And the drive through will prove that to you, if you look at the drive through.

And the trailer ends up in the bus’s – across the double line, in the bus’s lane of travel, correct?‑‑‑That’s right.

That’s when the collision happened?‑‑‑Yes.

The bus was wholly in its own lane?‑‑‑Yes.

Because you couldn’t control the trailer?‑‑‑No.  Because the truck initiated emergency braking when it was not necessary to do that at all.

  1. [153]
    Mr Gallaty was shown the dash camera footage and agreed that at one stage (around 1:12:24) the truck appeared to shift a little to the right of its lane.  He did not agree that he crossed the centre lines but said he may have moved a little to the right to negotiate the corner.
  2. [154]
    Mr Gallaty was asked about his mark on exhibit 30 indicating where he may have applied the brakes before going into the bend.  He said he really did not know if that was where he applied the brakes.  He went on:[85]

I just know leaning into the corner, coming towards the corner, I applied the brakes where I thought it would be the right time to apply the brakes when you go into any corner.

  1. [155]
    I asked Mr Gallaty if he was sure that the alarm came on before he took evasive action.  He said he was definitely sure, because he looked in the rear vision mirror to see what the trailer was doing and that was when he realised the trailer was swinging out under full brakes and he took evasive action to try to pull the trailer back in behind the truck, by turning the wheel sharply to the left.[86]
  2. [156]
    Mr Gallaty said he did not notice the system going through a two stage process of a warning accompanied by light braking, each stage followed by at least a second, before applying full brakes.  He said:[87]

All I’ve felt was that the alarm’s gone on, the light’s gone on, I’ve looked and saw just – the steering wheel’s gone heavy, it’s [indistinct] as if emergency braking.  I look in the rear vision mirror, the trailer’s swinging out.  So I’ve just, straight away, gone to the left to try to pull the trailer back in.

  1. [157]
    Mr Gallaty was referred to exhibit 5 and the average speeds that had been calculated by Mr Woodcock between points B to C and C to D.  He accepted that at point B he would have been going faster than the indicated average speed as, between points B and C, the brakes were applied to the trailer and it started skidding.[88]
  2. [158]
    Mr Gallaty was asked if he had had any experience that morning, before the collision, where the truck was leaning to the right so that it might have caused a mark on the front driver’s side steering tyre.  He did not think he did.  Nor could he remember anything happening in the days leading up to that day that might cause marks on the edges of the tyre.  However, he said that sometimes when the truck was loaded and he was steering into parking bays, the manoeuvring could cause marks.[89]
  3. [159]
    Finally, Mr Gallaty was asked about a “drive through” to which he had referred several times in his evidence.  He confirmed that he drove his truck and a new trailer around the bend with Mr Sculthorpe.  The trailer was a newer model, not the same as the trailer involved in the collision.  It had a different wheel set-up, that made it easier to drive, and it also had ABS.[90]

Other defence evidence

Mark Sculthorpe

  1. [160]
    Mark Sculthorpe gave evidence by video link.  He described himself as a motor vehicle crash reconstructionist.  He has substantial experience in the New South Wales police force investigating motor vehicle crashes, similar to that of Snr Const Campbell.[91]  He has also worked as a private consultant in that field.
  2. [161]
    Mr Sculthorpe wrote a report and provided a video showing three “drives through” of Mr Gallaty’s truck and his new trailer.[92]  The Crown objected to some parts of his report as inadmissible.  I also expressed concerns about the admissibility of other parts.  Mr McDougall conceded most of those objections and concerns before Mr Sculthorpe gave evidence.  In his address, Mr McDougall identified a large number of paragraphs of the report on which he did not rely.  With respect, he was right to do so, as much of the report comprised comments on evidence in areas that were beyond Mr Sculthorpe’s expertise, or his conclusions on what the evidence showed.  Those parts were inadmissible and of no assistance to me.
  3. [162]
    In addition to the paragraphs identified by Mr McDougall, however, I have found much of the balance of the report to be of little assistance, even if parts were strictly admissible.  Much of the balance comprised comments beyond his expertise, extracts from other documents that he had obtained or his perceptions of what could be seen in photographs of the scene, or did not otherwise add to the evidence given by other witnesses.  In addition to those parts conceded by Mr McDougall, I pay no regard to paragraphs 4.1 to 4.4, 4.57, 4.74, 4.75 and 4.94 to 4.102.  Additionally, section 5 (Summary and Conclusions) is based on the entirety of the former sections of the report, contains opinions beyond his expertise and observations on and from the evidence that are for the court to make, not a witness (expert or not), so I have paid little or no attention to that section.
  4. [163]
    Overall, Mr Sculthorpe’s evidence was not helpful.  The main conclusion reached by him, that the truck’s ABA operated incorrectly and applied the brakes, is clearly beyond his expertise.  Apart from the evidence of timing taken from the dash camera footage, to which I refer below, I have drawn no assistance from the report.
  5. [164]
    The “drive through” videos showed, in split screen, the views from four cameras.  One was in the cabin of the truck, mounted directly in front of the driver on an arm attached to the window, to represent the driver’s view of the road and its surrounds.  The second camera was on the outer right hand side of the trailer near the rear corner, looking forward along the side of the trailer (and, when it was visible, the truck) and with a view of the road alongside.  Two other cameras were on the opposite (western) side of the road showing the truck’s approach to, negotiation of and departure from the bend.  Mr Sculthorpe gave evidence that Mr Gallaty drove the truck on each of three occasions at a constant speed:  at 62kmh, 70kmh and 77kmh respectively.  Mr Sculthorpe said that he had asked Mr Gallaty otherwise to drive as he normally would.
  6. [165]
    Each of those “drives through” was played to me and I have since played them again several times.  They were conducted on 1 July 2018, at a time when the road had not yet been altered from its condition in November 2016, although works had started to widen it and much of the vegetation on the sides of the road had been cut back or removed.
  7. [166]
    The Crown objected to me taking these videos into account in considering my verdict, on the grounds that they are inadmissible reconstructions.  Alternatively, Mr Boyle for the Crown submitted, they are unreliable in demonstrating, or assisting me to find, any relevant fact, given that they show the truck being driven by Mr Gallaty on a different day, towing a different trailer, when he was no doubt more alert and he was in more clinical circumstances than on the occasion of the collision.  Mr Sculthorpe also admitted that he did not know how the size or dimensions of the trailer being towed during the drives through compared to those of the trailer involved in the collision, nor whether the latter had ABA, nor whether the stability control or the ABA was turned on during the drives through.
  8. [167]
    A reconstruction can be considered evidence if the parties specifically admit that it should be treated as a reproduction, or if it is proved by evidence, to the satisfaction of the Court, that it really did reproduce what the witnesses had attempted to describe.  Unless these conditions are satisfied, as was said long ago in the United Kingdom by the Court of Appeal,[93]

to allow such a reconstruction would be introducing a method of proof which would be most unsatisfactory for the reason that it would be almost impossible to analyse motion by motion those slight differences which may in the totality result in a scene of quite a different character from that [in issue]. 

  1. [168]
    The real question is how similar the reconstruction appears to be to the event in issue, including how similar are the conditions under which the reconstruction was conducted.  The conditions need not be identical, but it is sufficient if there is a substantial similarity.  The extent of similarity or difference is a matter that goes to the weight to be accorded to the evidence of the reconstruction, rather than to its admissibility.[94]
  2. [169]
    Mr McDougall submitted that the videos are admissible, having regard to those principles.  He said that it was the same road surface, the same truck, the same road condition, the same weather conditions, although of course not the same trailer.  If I do not accept it as a reconstruction, I could still use the videos taken from the outside of the vehicle as an assessment of the air compression and movement of the cabin itself, so as to evaluate what the witnesses say they saw when they saw the vehicle at a particular time.  That is, I could use it to evaluate whatever weight, if any, I place on the evidence of the eye witnesses.
  3. [170]
    Having now viewed each of the videos several times, I consider them to be of no real assistance.  In addition to the differences identified by Mr Boyle, the roadworks on the side of the road resulted in there being no shoulder to the lane in which the truck was travelling approaching and at the bend and many of the trees near the side of the road had been cleared, substantially improving the visibility around the bend.  The absence of a shoulder, in particular, is likely to have affected how Mr Gallaty drove and how his truck reacted.  For example, the videos showed that, on each occasion that the truck rounded the bend faster than the previous occasion, the right wheels of the truck and trailer travelled closer to the centre lines, so that at 77kmh they were almost touching the closer line toward the end of the curve.  That may well have been influenced by the absence of any shoulder to the road. 
  4. [171]
    I do not consider that the videos assist me in consideration of the evidence of the eye witnesses, because the external videos were not taken from the locations of those witnesses at the time.
  5. [172]
    I therefore give no weight to the videos in reaching my conclusions.
  6. [173]
    In his report, Mr Sculthorpe relevantly explained that he had reviewed Mr Gallaty’s dash camera footage, using commercially available software that enables examination of a video frame by frame, showing the elapsed time in one hundredths of a second.  This timing was considerably more accurate than the dash camera timer, which only showed time in whole seconds.  He extracted still images from the camera footage, most relevantly including the moment when the bus was first discernible through the trees,[95] the moment when it came fully into view and the moment of collision.  The software’s timing mechanism demonstrated how much time elapsed between those events:  a total of 3.588 seconds from the first of these moments, and 3.225 seconds from the second moment. 
  7. [174]
    This evidence was interspersed with comments by Mr Sculthorpe about when and for how long the eye witnesses would have been able to see the truck.  Mr McDougall submitted that this evidence would be strictly admissible, but I may consider what weight to put on it if I considered that it added anything to my viewing of the dash camera footage.  I did not understand Mr Boyle to submit to the contrary.  I do not consider that the evidence, to the extent that it purports to demonstrate at what moments the eye witnesses may have been able to see the truck, is of any assistance to me.  I consider that Mr Sculthorpe’s comments about what the video showed in terms of where the truck was on the roadway to be matters of perception that are not admissible or helpful, but are for me to determine.  The only parts of this evidence that I consider to be admissible and useful are those set out in paragraph [173] above, demonstrating the total elapsed times referred to.  I accept this evidence, which proves how quickly everything happened.[96]
  8. [175]
    Mr Sculthorpe gave evidence mainly under cross-examination.  He was tested on some of the parts of his report that have subsequently not been relied on by the defence and on some of the opinions he expressed.  He was also asked about heavy vehicle wheel marks on the road and on a tyre.  He said, by reference to the mark that Snr Const Campbell had said was a recent heavy vehicle mark on the front right tyre of the truck, that if the truck with such a mark on its tyre had been driven for a distance after it was made, the mark would gradually lose its lustre.
  9. [176]
    As to the mark on the road that Snr Const Campbell had identified as a heavy vehicle tyre mark, Mr Sculthorpe expressed the view that it was not made by Mr Gallaty’s truck.  He explained:[97]

Because the tyre mark is not positioned where it should have been if it had been created by Mr Gallaty’s truck, as – according to its position represented in the dash cam video, as well as its expected position if the driver’s front tyre – the steer tyre – had tracked over that position indicated on the police plan.  That would indicate that it’s [sic] passenger’s front tyre would be either on or very close to the roadway’s left-hand outer edge and that the position of that tyre mark that the police have nominated as preliminary tyre mark would not have been created there at that time.  It’s too far to the left when viewed from the truck’s approach direction.  And I also have an issue with Snr Const Campbell’s identification of that tyre mark as having been created recently or fresh.  I’m not sure of the exact terminology he used, but I would seriously question the – his ability to be able to say how fresh or recent it was under the circumstances.

All right.  Well, as you’ve said, it’s sometimes – perhaps they’re not as clear, but if we have a narrow mark and he photographed it – let’s just assume there’s that mark on the road there, just as he views it, that preliminary tyre mark.  All right.  We’ve got a continuing narrow, black line?‑‑‑Yes.

If we work on that that [sic] basis, why do you say it did not come from Mr Gallaty’s truck?  Is it simply because it’s too far from the centre line?‑‑‑It’s not – yes, it’s not positioned correctly.  It’s actually – it’s quite long.  The – if Mr Gallaty’s truck had entered that part of that curve, whilst travelling at or about the speed limit, the configuration of that truck, without any foot brake application, would not cause such a tyre mark due to the weight shift of the truck itself because the curve was not sharp enough.  Secondly, the – if that preliminary tyre mark had instead not been created by weight shift of the truck itself, but by an excessive left-hand steering application by Mr Gallaty, it would have – it would have displayed greater curvature than it does, and that would have been evidenced by a – some sort of left-hand movement of the truck itself in the dash cam and, in my opinion, that did not happen.

  1. [177]
    However, he accepted that, if a truck entered a curve such as this “too fast” it could create such a mark.

Steven Smith

  1. [178]
    Steven Smith gave evidence by video link.  He has 42 years’ experience in brake control systems, including structural and system designs and the diagnosis of faults in commercial vehicle brake systems.
  2. [179]
    Mr Smith produced a report,[98] in which he commented on a report apparently produced by Snr Const Campbell.  The latter report is not in evidence, but some of Mr Smith’s comments concern matters about which Snr Const Campbell gave oral evidence.  To that extent, Mr Smith’s comments are relevant to the issues.
  3. [180]
    Of particular note, Mr Smith expressed the view that the marks on the side walls of the front right hand wheels of the truck, that Snr Const Campbell said are heavy vehicle marks caused by cornering at too fast a speed, could equally be the result of the tyres being underinflated.  Mr Smith had seen no evidence that anyone had checked, after the collision, whether the tyres were properly inflated.
  4. [181]
    In his report, Mr Smith explained that it is legal to have a truck and trailer with different braking systems, but it can cause problems in some circumstances.  In particular, he said this:

Whilst these high technology vehicles do provide undoubted and new levels of road user safety, the reality is that a trailer, that is totally compliant to Australian Federal Regulations, equipped with components that comply for the rated usage, frequently exhibit operational issues, from poor brake imbalance between truck and trailer, for example, the driver will apply the brakes in the truck coming to a set of traffic lights when the amber lights are activated, the truck will allow the driver to apply the brakes, using the amount of pedal pressure the driver initiates, however, the vehicle computers will measure and re-modulate the actual pressure delivered to the wheel brakes to achieve the optimal “stop”.  If the trailer attached to this truck is not equipped with a control system that is either electronically manipulated, otherwise employs load sensing pneumatic management for the axle groups, then the trailer, depending on the design, will generally lock the trailer brakes, depending on the load conditions, road surface, tyre adhesion, amongst other facts.  Trailers such as drawbar or dog trailers are especially prone to shifting their axis past the immediate line of the truck, as the front section can self-steer.  Trailers with fixed axle groups, such as a semi trailer, may cause a shift in axis, past the “towed path” behind the towing vehicle, although trailers with steerable front axle groups can alter axis dramatically, due to the ball race turntable, which can enable the front axle group to rotate with minimal resitance [sic] through a large radial arc, limited by the tow coupling, in certain cases there exists no limitation by design characteristics, such as a ball or pintle arrangement.  A case in example with the front pivotal axle group, such as the Hamilex four axle dog trailer, an ‘aggressive” application of the service brakes, with the trailer unladen, and possibly unbalanced brake adjustment or road surface inconsistencies, can result in the front axle group veering in an unpredictable direction, with no possible correction from the driver, as the shift in axis occurs in milliseconds.

  1. [182]
    In his evidence, Mr Smith expanded on those comments.  The following exchange with Mr Boyle occurred, referring in particular to the last sentence quoted above and an earlier comment:[99]

Could you just explain that for us?‑‑‑Okay.  So the Mercedes Actros, when you put your foot on the brake, the actual brake delivery is calculated on various inputs, including road speed, pressure, the driver’s intention, and so it delivers pressure to the wheel brakes in a calculated fashion, where a trailer, like the Hamelex trailer, that is involved with the incident, it has, basically, a pneumatic relay device on the front half of the trailer and exactly same device on the rear half of the trailer, which, basically, is pneumatically operated and releases stored energy from the two reservoirs within the trailer to apply pressure to the brake.  The modulation of those two relay valves is very difficult to achieve exactly the same torque output as what would be experienced with the truck, and the trailer would generally [indistinct].

So that’s quite independent of the fact that the truck has ABS and the trailer doesn’t?‑‑‑Correct.  The ABS is a fully automatic function whereby the computer in the truck – it travels through two states, one of hold and one of release, and it does it at a high speed to accommodate wheel rotation.

Okay.  So that sentence there – so does that mean it wouldn’t be a smooth, linear and modulated fashion  – operation of the brakes, as such?‑‑‑The trailer [indistinct] would not behave as well as the Actros.  Yes, you are correct.

So what sort of behaviour would you expect from it?‑‑‑Depending on the brake lining material, the condition of the brake drums, the cleanliness of the air within the air takes, the general condition of the two relay valves would be always more – more aggressive.  It would tend to [indistinct: out brake] the truck in nearly every occasion.  Most drivers adapt to it very quickly.

But what sort of things would the trailer do then, in a braking situation?‑‑‑The truck and trailer – the trailer would – would tend to lock up.  The trailer would be noticeably – well, not – not so much when it was fully loaded but when it was empty would be – it would tend to lock [indistinct: the wheels] depending on the road surface and, you know, water on the road, that type of environment contamination would – would affect what it does on a, you know, an hour by hour basis.

So the mismatch would be quite apparent to a driver of the vehicle?‑‑‑Not so much when it was loaded.  When it was empty, it – he may – it may be discernible.  It probably would only become discernible in a very dynamic situation if the road surface, if the [indistinct] had changed, if the coefficient of friction had changed on the – between the tyre and the road, that could – that could make the driver aware that there was something – something different going on.

All right.  And perhaps that – you carry that through on page 3, the bottom little last sentence on page 3 at paragraph 13?‑‑‑Correct.  That – that would be – that’s exactly the same, it becomes more discernible with the front two axles because they’re on the pivotal – why it’s called a [indistinct: ball race] turntable.  And also has the available – the trailer can also pivot from the ring feeder, which is the towing connection on the actual Mercedes.  So there’s about a 280 degree arc achievable.

  1. [183]
    Earlier, he had also said the following, in an exchange with Mr McDougall:[100]

And are you able to comment on what the effect of having different sized brake chambers on the same axle in a trailer such as the one that was involved in the accident?‑‑‑Brake chambers – between each size brake chamber, there’s about 20 per cent brake torque difference.  So from – if you skipped from a type 24 brake chamber up to a type 30 brake chamber, the type 30 brake chamber has 20 per cent more torque power.  So in certain instances, the higher output, depending on the brake adjustment, will actually activate the brake earlier and, in some instances, this can cause a directional shift.

And is that the case – in particular, is that the case where the different sized brake chambers are on the same axle?‑‑‑Yes, it can do.

Such that, if you had a 30/30 brake chamber on one side of the axle and a 24/30 on the other side of the axle, on the same axle, could that create an instability in the braking mechanism of the trailer?‑‑‑Yes.  Yes, it would.

And could that potentially lead to a dangerous situation?‑‑‑In certain instances, yes, it could, especially [indistinct] a steerable axle. 

  1. [184]
    Mr Smith agreed that this particular trailer had a predisposition to lock the brakes, particularly when unladen.  He was also asked by Mr Boyle about the effects of the different sized brake chambers.  The larger chamber on one brake would mean that it would lock up first.  It would not directly affect the other tyres in terms of whether they also lock up and there would be a momentary difference, but it would cause instability.  However, as he said in re-examination,[101] it would have an indirect effect because the suspension would lift the wheel as it locks, shifting the weight to the other wheels, changing the way the trailer sits on the road, including the centre of gravity.  The earlier lock up of those wheels may explain why one set of skid marks on the road in this case was longer than the others.

Submissions

Defence

  1. [185]
    To summarise Mr McDougall’s submissions, he contended that there is a reasonable doubt whether Mr Gallaty was driving dangerously and therefore I should acquit him of the charge.  Alternatively, if I were to find that he was driving dangerously, there is a reasonable doubt whether that manner of driving caused Mr Bohlsen’s death, as there is a real possibility (or I may find positively) that the truck’s braking systems malfunctioned, causing the trailer’s brakes to lock up and the trailer to swing out to the other side of the road.  The possible causes of that malfunction, operating independently or together, were:
    1. (a)
      that ABA mistook the oncoming bus as an object in the path of the truck and actuated to apply the brakes;
    2. (b)
      the oversized brake chamber, which caused the left rear wheels to lock up before the other wheels of the trailer, leading to it sliding to the right; and
    3. (c)
      the missing clevis pin, which would cause an unequal brake adjustment that could cause a drift to the right due to the imbalance.

Such a cause would be a break in causation, in that the locking of the trailer brakes and its consequent slide into the path of the bus would have been caused by something independent of the actions of the driver.  In that case, even if I were to find Mr Gallaty guilty of dangerous operation of a vehicle, he would not be guilty of the aggravated offence that that manner of driving caused Mr Bohlsen’s death.

  1. [186]
    More succinctly, Mr McDougall’s submission was, “Thank goodness for the dashcam.”  He submitted that that footage demonstrates that the truck did not, at any stage, travel on or over the centre white lines.  Snr Const Campbell and the Crown’s expert, Mr Tilney, agreed that it demonstrates that fact.  I should not accept the evidence of the four eye witnesses to the contrary, but I should find that at all times Mr Gallaty’s truck stayed within the correct lane.
  2. [187]
    Mr McDougall submitted that I should accept all of Mr Gallaty’s evidence as honest and accurate.  He subjected himself to two police interviews and to cross-examination in this trial.  His evidence and prior statements were consistent, at all times, that an alarm sounded and the truck braked heavily immediately before the trailer started sliding to the right.  From this evidence and the clear evidence of the experts that ABA, but not stability control, causes an alarm to sound, I should infer, or at least I cannot exclude the reasonable possibility, that the ABA operated incorrectly, mistaking the bus for a vehicle immediately in front of the truck in its path of travel and the application of the brakes by ABA caused the trailer brakes to lock up and the trailer to slide – a situation that was not caused by Mr Gallaty’s driving and was not foreseeable by him.  Mr Gallaty’s evidence of the alarm sounding is most significant in demonstrating that the brakes were applied by ABA, not by SR.  His evidence in this respect was not challenged at all.[102]
  3. [188]
    Mr McDougall also submitted that I should accept that Mr Gallaty was a good and safe driver, having never before received a traffic infringement notice or been involved in a road collision.  It is also relevant that he had driven the same truck through that same bend, at about the same speed, towing the same empty trailer, many times before over the previous 16 months, without any problems.  The only variable on this occasion was that a large bus approached his truck on the corner.  That supports the view that the ABA system mistook the bus for a stationary or slow vehicle in his own lane and wrongly actuated, causing the trailer brakes to lock and the trailer to slide out.
  4. [189]
    Mr McDougall pointed to Snr Const Campbell’s opinion that the activation of the brakes on the trailer was not caused by Mr Gallaty manually doing so, but was an autonomous function of the truck.[103]  I should find that Mr Gallaty did not himself brake while in the bend, although he applied the brakes before entering it.
  5. [190]
    Mr McDougall addressed the issue of how fast a heavy vehicle could safely travel around that bend.  He pointed to the fact that the bus was approaching the bend at 67kmh, far above the advisory speed limit of 40kmh,[104] before it slowed suddenly to 46kmh.  He submitted that I should infer that the sudden reduction in speed was not the driver slowing to take the bend, but rather braking in an attempt to avoid or reduce the impact of the impending collision with the trailer.  Therefore, I should find that it was safe for such a vehicle to travel around the corner at a higher speed than the advisory signs recommended, which corroborates Mr Gallaty’s evidence to that effect. 
  6. [191]
    This was further corroborated by Mr Jeevaratnam’s evidence that the proper advisory speed level on the bend (that is, the proper comfortable speed at which it could in fact be navigated), without any changes having been made to the road alignment existing on the day of the collision, was 59kmh (which would lead to a sign advising 60kmh).  That was based on objective data derived from the ball bank indicator.  Mr McDougall submitted that the significance of that evidence was that, if one accepts (based on Mr Woodcock’s evidence) that Mr Gallaty was driving around the bend at an average speed of about 75kmh, that was about 15 to 16kmh above the new advisory speed level, on a road that he knew well and at a speed at which he had driven around that bend before, without incident.  Two seconds prior to the accident, Mr Bohlsen was driving the bus at 67kmh, which was 27kmh above the advisory speed that had faced him, no doubt knowing that that speed was comfortable and safe.  Furthermore, there was no history of trucks tipping over going around that bend.  Nor could it be determined when the advisory signs of 40kmh had been installed.  It may have been many years ago, since when the safety and comfort of motor vehicles have increased substantially.
  7. [192]
    Although Mr McDougall did not directly say what I should draw from these matters, I infer that his submission was intended to be that, having regard to all these factors, I could not find that Mr Gallaty’s speed as he entered and went around the bend was dangerous.
  8. [193]
    Mr McDougall submitted that I cannot be satisfied that the mark on the road identified by Snr Const Campbell as a heavy wheel mark was such a mark or was made by Mr Gallaty’s truck.  The dash camera footage reveals a line on the road that is possibly at the same place as the mark identified by Snr Const Campbell.[105]  Snr Const Campbell was pointed to that mark and he agreed that there is a mark there.  However, he said that it was not the mark he identified, as the mark shown in the footage is not continuous, whereas the mark he identified in the photographs in exhibit 8 (particularly photograph 34) was narrow, dark, continuous and followed a curved path until it disappeared around the apex of the bend.[106]  Nevertheless, Mr McDougall submitted that the mark shown in the footage casts doubt on the proposition that the mark identified by Snr Const Campbell was caused by Mr Gallaty’s truck, as they may well be one and the same mark and therefore made before this occasion and by a different vehicle.  Therefore, I cannot be satisfied to the required standard that Snr Const Campbell’s mark was a heavy vehicle mark or was caused by Mr Gallaty’s truck.
  9. [194]
    He submitted that I cannot exclude the possibilities that:
    1. (a)
      the heavy vehicle mark on the road identified by Snr Const Campbell was not a heavy vehicle mark at all or, if it was, it was not made by Mr Gallaty’s truck – a possibility conceded by Snr Const Campbell at T1-52:20-23; and
    2. (b)
      the heavy vehicle marks on the tyres of the truck identified by Snr Const Campbell were not such marks at all or, if they were, they were caused either by the truck rounding an earlier left hand bend (again, as Snr Const Campbell conceded as a possibility at T1-52:34-36) or when, immediately before the collision, Mr Gallaty “reefed” the wheel to the left.[107]
  10. [195]
    On another issue, Mr McDougall submitted that the evidence demonstrated that, if the stability control mechanism detects an excessive yaw and an incipient tipping over of the truck, it will selectively target the brakes of the truck to reduce the yaw by slowing the vehicle.  It will not lock the brakes on.  Mr Gallaty’s evidence was that that did not happen, but the brakes came on hard all together.  This demonstrates that the SR did not operate, even though he accepted that the evidence was that SR will target the wheels of the truck but can only send a general (rather than targeted) braking message to the trailer.
  11. [196]
    Mr McDougall also noted that Mr Tilney’s evidence was that it was probable that stability control may have activated if the vehicle was in a critical situation.  It was also possible that, if the driver had applied the brakes, that caused the brakes on the trailer to lock.  Mr McDougall noted that the evidence was in terms of possibilities and probabilities, but there was no definite evidence of what caused the lock up. 
  12. [197]
    He also noted Mr Tilney’s evidence that SR will not cause an alarm to sound.  Mr Tilney was asked to assume that an alarm had sounded and was asked if that would indicate that ABA had somehow actuated.  He said that was a possibility, as there are different warning alarms in the truck for different things.  He could not discount it.  Mr McDougall submitted that there was no evidence that any of the other situations where an alarm would sound applies, so the only thing that makes sense is that the ABA alarm sounded because that braking system had actuated.  Mr McDougall submitted that the time period of three seconds from the first alarm to heavy braking caused by ABA is the approximate time period between when the truck and the bus were facing each other head on and the lock up of the brakes.
  13. [198]
    As far as SR is concerned, Mr McDougall noted that the Crown called no evidence indicating the physical limits that cause SR to activate, nor that they would have been met or exceeded when Mr Gallaty’s truck was cornering.  There is no evidence, for example, of a combination of yaw, speed and traction that might have demonstrated that SR had activated.  The closest evidence was that of Mr Jeevaratnam’s ball bank indicator, which indicated that a comfortable speed at which this corner could be taken was in fact 59kmh.
  14. [199]
    Mr McDougall pointed to evidence of Mr Oliver that, if a truck is on the point of tipping while going around a corner, just a few additional kilometres per hour will tip it.  Mr McDougall submitted that I should apply the same logic to differential braking output, so that only a slight variation in the application of brakes to different wheels of the trailer might change the situation from stable to unstable.  I take this to be a reference to the different braking outputs to the trailer’s wheels caused by the larger brake chamber, or the difference in brake adjustment caused by the missing clevis pin, or both.
  15. [200]
    On the question of the effect of the different brake chambers, Mr McDougall also pointed to Mr Graham’s evidence that it could potentially affect the performance of the brakes by applying a different brake force from one side to the other.  He referred in particular to this exchange:[108]

And if there were differential braking forces on either side, is that likely to cause the brakes to lock up differently or to perform substantially differently if the brakes were applied to the trailer?‑‑‑Potentially it could, yes.

  1. [201]
    Mr McDougall submitted that that answer showed that the degree of difference in performance was substantial, not immaterial.  That was supported by Mr Collins’ evidence that, hypothetically, a differential in braking power caused by different sized brake chambers could create a dangerous situation.[109]
  2. [202]
    Mr McDougall submitted that Mr McLaren’s evidence that the larger brake chamber may cause that wheel to lock slightly before the others (although only a few milliseconds) was consistent with that of Mr Graham and Mr Collins.  He also submitted that I should conclude, from the evidence of Mr Graham and Mr Walker, that the oversize brake chamber was installed by Mr Walker on 23 August 2016.
  3. [203]
    Mr McDougall also relied on Mr Smith’s evidence, particularly that extracted above,[110] as consistent with that of Mr McLaren, Mr Graham and Mr Collins that the unequal force generated by the larger chamber could (or, in Mr Smith’s opinion, would) create an instability in the braking mechanism and could potentially lead to a dangerous situation in some circumstances.
  4. [204]
    Mr McDougall noted that Mr Cheyne was unable to say whether a vehicle’s radar may detect and react to a vehicle going directly across its path.  Mr Cheyne said the rate of change across the front of the vehicle may be too great for it to analyse and react to, but he did not know.[111]  As I understood him, Mr McDougall submitted that it was possible that, at some stage in the bend, the truck’s radar may have detected the bus but, because of the angle of approach, mistakenly identified that it was a stationary vehicle in the truck’s lane rather than an oncoming vehicle. 
  5. [205]
    Mr McDougall submitted that the eye witnesses’ accounts that they saw the truck over the centre lines were clearly mistaken.  That is particularly the case if I were to accept (contrary to Mr McDougall’s submissions) Snr Const Campbell’s evidence that the mark he identified as a heavy wheel mark was made by Mr Gallaty’s truck.  Snr Const Campbell said the mark was about 800 to 900mm from the middle of the two centre lines.  The truck is 2500mm wide.  The distance from the outside of the left to right front tyres is about 2320mm.  Therefore, the outside of the truck’s body would extend about 90mm beyond the outside edge of the right tyre.  If the alleged heavy vehicle mark was made by this truck, then the outside of the tyres was about 800 to 900mm from the centre of the road and the outside of the truck’s body would still be about 700 to 800mm from the centre lines.
  6. [206]
    In any event, Mr McDougall submitted, I should not accept that the truck was on or over the centre lines.  The dash camera footage demonstrates that at all times it was in the correct lane and it was not close enough to those lines to have any part of the truck body or its wheels on or over them.

Defence of accident

  1. [207]
    Mr McDougall submitted that s 23 of the Code applies to the circumstances of this case.  That section excuses a person from criminal responsibility for the consequences of an act that occurs independently of the person’s will, or for an event that the person did not intend or foresee – and an ordinary person would not reasonably foresee – as a possible consequence of the person’s act. 
  2. [208]
    Mr McDougall submitted that this excuse arises from the evidence relevant to the possibility that the ABA actuated erroneously, or the incorrect brake chamber led to a dangerous situation.  That evidence raises the possibilities that the braking systems acted independently of Mr Gallaty’s will, or that neither Mr Gallaty nor an ordinary person would reasonably have foreseen that the braking, as it occurred here, would occur, causing the trailer to skid.
  3. [209]
    Mr McDougall submitted that either paragraph of subsection 23(1) may apply.  Under paragraph (a), the excuse arises if an act or omission occurred independently of the person’s will.  Mr McDougall submitted that, in this respect, the act was actuation of the braking mechanism, which caused the trailer’s wheels to lock up, with the consequence of the trailer skidding into the path of the bus.  The actuation of the brakes was an act that occurred independently of Mr Gallaty’s will and therefore he is not criminally responsible for the consequences of that act.
  4. [210]
    Alternatively, Mr McDougall submitted that paragraph (b) applies.  In that case, the act was that of driving the truck and trailer around the bend at the speed at which they were travelling.  The consequence or event that was unforeseeable was that the brakes on the trailer would lock up due to ABA or the outsized brake chamber, causing the trailer to slide into the path of the bus.
  5. [211]
    If, on the whole of the evidence, the prosecution has not satisfied me, beyond reasonable doubt, that Mr Gallaty intended the trailer to skid into the oncoming lane, or that he reasonably foresaw the skidding as a possible consequence of his driving, or that an ordinary person in his position would have reasonably foreseen the skidding as a possible consequence of his driving in that manner, then the section applies and Mr Gallaty would be not guilty of causing Mr Bohlsen’s death, even if I were to find that he was driving dangerously.
  6. [212]
    In considering whether Mr Gallaty did foresee that the trailer’s brakes would lock up its wheels, leading to the trailer skidding, or whether an ordinary person would have foreseen it, I should focus on whether lock up and skidding were foreseeable as something which could happen, disregarding possibilities that are no more than remote or speculative.
  7. [213]
    Mr McDougall submitted that I could not find that Mr Gallaty did, or an ordinary person would, foresee that the trailer would skid in the bend as a consequence of either ABA operating or the larger brake chamber causing instability that led to it skidding across the road. 
  8. [214]
    He also submitted, in answer to a question that I put to him, that if I find that the speed at which Mr Gallaty was driving was dangerous, but that the skidding of the trailer was caused by ABA or the brake chamber and was not foreseeable, I may find Mr Gallaty guilty of dangerous operation of a vehicle, but not of the aggravated offence of causing Mr Bohlsen’s death.
  9. [215]
    In all these circumstances, Mr McDougall submitted, there is a reasonable doubt, both as to whether Mr Gallaty was driving dangerously and as to the cause of the collision.  Therefore, I should acquit Mr Gallaty of the charge.

Crown

  1. [216]
    Mr Boyle addressed the issues by reference to the particulars of the offence charged.[112]  He submitted that the cumulative effect of all the facts set out in paragraph 2 of those particulars gave rise to the commission of the offence.
  2. [217]
    The first issue he addressed was whether Mr Gallaty was driving at excessive speed.  He noted Mr Gallaty’s statements, both at the scene and in his formal interview, that he knew that the speed limit was 80kmh and he thought he was doing around that speed.[113]
  3. [218]
    Mr Boyle noted that, in exhibit 5, the average speed between points B and C included a significant distance in which the trailer was braking (indicated by the skid marks).  Similarly, the average speed between points C and D includes the moment and the aftermath of the collision itself, which would have reduced the speed of the truck considerably.  Therefore, he submitted, the actual speed of the truck at points B and C must have been faster than the average speeds calculated by Mr Woodcock.[114]
  4. [219]
    Mr Gallaty knew that the recommended speed for the bend was 40kmh.  Mr Boyle submitted that, knowing that and having travelled around the bend on many prior occasions with an unladen truck and trailer, he would have known how sharp the curve is and that it would be sharper for a vehicle travelling south, around the bend to the left, than for vehicles travelling in the opposite direction.  The dash camera footage even showed, he submitted, that as he entered the bend Mr Gallaty drifted a little to the right, apparently to give himself more width to get around the bend.  Mr Gallaty therefore entered the bend at almost twice the recommended speed.  Even accepting Mr Jeevaratnam’s evidence that an appropriate advisory speed was 60kmh, Mr Gallaty was travelling at about 1.5 times that speed.
  5. [220]
    Mr Boyle referred to the heavy vehicle mark identified by Snr Const Campbell on the road and on the right steering tyre of the truck.  Snr Const Campbell’s evidence was that the mark on the wheel was recent, as it would lose its lustre if the truck had been driven any distance after it was made.  The mark on the road was also recent.  Those facts circumstantially indicate that the mark on the road was caused by Mr Gallaty’s truck as it was going around the bend and, due to the speed and sharpness of the turn, the weight of the truck shifted to the outside of the right wheels.  Such a shift would produce sufficient yaw to activate the stability control, which would apply brakes selectively to the truck’s wheels, but also would cause the trailer’s wheels to brake together.
  6. [221]
    This was consistent with the evidence of the eye witnesses, two of whom said that, when they saw the truck coming around the corner, it was leaning to the right.  The dash camera footage cannot be relied on to show what was happening to the chassis of the vehicle, as the suspension of the cabin would dampen out any reaction of the vehicle at chassis level (as it was designed to do).[115]
  7. [222]
    The third matter relied on by Mr Boyle was the condition of the road.  He referred to the statement made by Mr Gallaty, in his formal interview, that,

[It’s] just generally a bad road as far as, you know, it’s not a good road.  It’s narrow and it’s just bumpy.[116]

  1. [223]
    Mr Boyle submitted that Mr Gallaty was very familiar with the road.  The evidence (particularly the dash camera footage and the photographs of the road) shows that his description of the road was accurate.  The lane in which he was travelling was three metres wide, with a bitumen edge of 0.5 metres.  There were cracks and bumps on the road surface and the bend was effectively a blind corner due to the trees on the side.  Such a narrow lane, poor road surface and poor visibility on that curve created a potential danger for a truck and trailer of this size.  Yet Mr Gallaty brought about a dangerous situation by driving at that speed into that curve on that particular part of the roadway, towing an empty trailer.
  2. [224]
    The fourth factor identified in the particulars is the size and heavy nature of the truck and trailer.  Mr Boyle submitted that these factors inherently created a greater danger, particularly on a narrow road and at the speed at which Mr Gallaty was driving, especially with an unladen trailer.
  3. [225]
    The next factor was the traffic that would be expected on the road, travelling in the opposite direction.  It would not be unexpected that cars and buses would be travelling on the road at that hour.
  4. [226]
    Next, Mr Boyle relied on the different brake systems on the truck (having ABS brakes) and on the trailer (without ABS) that, on actuation, could be expected to cause the trailer’s brakes to lock.  Mr Gallaty was familiar with that combination, having driven those particular vehicles together for about 16 months.  He should have been well aware of the potential difficulties in driving the smart-dumb combination.  He was aware that potentially a strong application of brakes, including under SR or ABA, could lock up the trailer wheels, even though the truck’s wheels would not lock.[117]
  5. [227]
    The final factor alleged in the particulars is that the brakes on the trailer were actuated by:
    1. (a)
      the operation of the truck’s stability control caused by the speed and steering by Mr Gallaty in driving the truck; and/or
    2. (b)
      the application of the brakes by Mr Gallaty.
  6. [228]
    Mr Boyle submitted that the defence theory that the brakes were actuated by ABA, which mistook the bus for a slow or stationary vehicle in the same lane as the truck, is not possible and is also belied by the evidence.  He relied on the evidence of three experts (Mr Tilney, Mr Cheyne and Mr Oliver) that the ABA system takes into account feedback from the radar, the speed of the truck, the speed of approach of the other object and the wheel angle of the truck to determine whether the object it detects is in the truck’s lane or is an oncoming vehicle.  It will recognise, but will not in any circumstances react to, an oncoming vehicle.  Furthermore, ABA operates in stages and does not lead to immediate braking, as Mr Gallaty asserted had happened. 
  7. [229]
    Mr Boyle also produced a chart[118] that he said shows the approximate positions of the truck and the bus two seconds before the braking started (as indicated by the skid marks on the road).  The experts’ evidence was that the three stages of ABA were separated by at least one second, so before the third stage (full braking), at least two seconds would have passed during which the alarm and mild to medium braking would have occurred.  He submitted that the positions of the two vehicles two seconds before full braking showed that the bus would not have been visible to the radar of the truck, so ABA could not have actuated then even if it were possible that it might react to an oncoming vehicle.  Finally, it was clear from the dash camera footage that there was no stationary or moving vehicle in Mr Gallaty’s lane that may have triggered ABA.
  8. [230]
    I asked Mr Boyle if he was contending that Mr Gallaty was lying when he said that the alarms had sounded.[119]  He said he was, although he accepted that he had not put that directly to Mr Gallaty.  But he had put to him that he had described the effects of stability control to Constable Kruys shortly after the accident and it was only later that he thought that that might reflect on his driving so he would blame ABA instead.[120]
  9. [231]
    Mr Boyle submitted that, because one witness said that one could not be 100% certain that ABA had not actuated[121] does not mean that I cannot exclude that as a possible cause of the brakes being actuated.  He submitted that I do not need scientific certainty in order to exclude an event beyond reasonable doubt. 
  10. [232]
    Mr Boyle pointed me to Mr Tilney’s evidence[122] that the radar associated with ABA detects 15 degrees each way from its centre point up to 150 metres ahead (creating an arrow-like detection range).  Mr Boyle submitted that that evidence proves beyond a reasonable doubt that the ABA did not cause the brakes to activate.  I infer that that is because the bus would not have been within the range of the radar early enough to have actuated ABA (as well as the fact that it does not react to oncoming traffic). 
  11. [233]
    Mr Boyle submitted that the evidence demonstrates that the circumstances of Mr Gallaty’s truck and trailer rounding that bend equate to those in which SR will actuate.  In particular, he referred to Mr Tilney’s evidence and Mr Oliver’s evidence about the circumstances in which SR will attempt to stabilise the vehicle.[123]
  12. [234]
    Mr Boyle pointed out that Mr Gallaty himself had identified that he thought that SR had activated, during his roadside interview with Constable Kruys.[124]  His description there of what had happened was consistent only with SR activating and applying the brakes.  It is inconsistent with his subsequent versions in the formal interview and in his evidence in court, in which he sought to blame ABA.
  13. [235]
    Mr Boyle referred to Mr Gallaty’s evidence that, on two previous occasions, he had gone into a corner and the brakes had locked up, albeit momentarily.  Mr Boyle submitted that Mr Gallaty therefore would well have known that, in going into a bend such as this, the brakes had the potential of locking up.
  14. [236]
    If the SR did not apply the brakes then, Mr Boyle submitted, the only other realistic possibility was that Mr Gallaty himself applied the brakes when he saw the bus coming around the corner and that application of the brakes caused the trailer’s brakes to lock up.  Mr Gallaty said that he touched the brakes on entering the bend and it is possible that either that “touch” caused the trailer brakes to lock up or that, on seeing the bus and that he was in danger of going too close to the centre of the road, he applied the brakes, causing the slide.
  15. [237]
    Mr Boyle addressed the two faults with the brakes on the trailer.  Mr Cheyne’s and Mr McLaren’s evidence was that the missing clevis pin would reduce the force of braking to the left wheels on the third axle, allowing those wheels to continue rotating and acting, if anything, against the forces of the other wheels locking, which may help control the back of the vehicle.[125]  Therefore, that fault could not have caused or contributed to the trailer sliding.
  16. [238]
    As for the oversized brake chamber, Mr Boyle pointed in particular to the evidence of Mr McLaren, that the additional braking force from that chamber would have caused that brake to lock milliseconds before the others in an emergency stopping situation and it would not have contributed to the cause of the collision.[126]
  17. [239]
    In conclusion, Mr Boyle submitted that it was Mr Gallaty’s responsibility to drive to the conditions of the road, having regard to the type of vehicle, and he had to drive in the knowledge of that vehicle and how it operated.  When one looks at the speed at which he approached the corner and the degree of bend, they were such that, on such a narrow roadway, there was always going to be a huge potential for a head-on collision.  Mr Gallaty was therefore driving dangerously and that manner of driving led to SR actuating or Mr Gallaty braking, which in turn caused the collision.
  18. [240]
    Mr Boyle accepted that the defence of accident may be open to Mr Gallaty if it was not foreseeable to him or an ordinary person that the brakes would activate in the circumstances in which he was driving the truck.  He submitted that the “act” was that of Mr Gallaty driving at the speed he did, which was in no way independent of his will.  If the “act” relied on by the defence is that of the truck’s systems (or the defects in the brakes) causing the brakes to be applied so that the wheels locked up, leading to the “event” of Mr Bohlsen’s death, the defence would not apply because the “act” must be an act of the defendant or another person that occurs independently of the exercise of his will.
  19. [241]
    Mr Boyle submitted that, if the brakes locked up because they were applied by Mr Gallaty or because SR activated due to the speed at which the truck was travelling, the event (the collision and Mr Bohlsen’s death) was foreseeable by Mr Gallaty or an ordinary person in his circumstances.  But, if I find that ABA activated, then that was not foreseeable and I should acquit Mr Gallaty of the charge of dangerous operation of a vehicle causing death.  Nevertheless, if I find that he was driving dangerously, I should convict him of dangerous operation of a vehicle.

Discussion and findings of fact

Was Mr Gallaty driving dangerously?

  1. [242]
    The first issue about which the Crown must have persuaded me, beyond reasonable doubt, is that Mr Gallaty was driving dangerously as he rounded that bend.  Unless the Crown has proved that fact, I must acquit Mr Gallaty.

Vehicle speed

  1. [243]
    There is no dispute that, as Mr Gallaty drove down the straight section of road leading to the bend, he was driving at about 80kmh.[127]  Based on Mr Woodcock’s evidence and giving Mr Gallaty the benefit of the margins of error, the average speed of the truck and trailer between points A and B on exhibit 5 was 79.92kmh.[128]  Point B appears to be just where the road starts to curve. 
  2. [244]
    Mr Gallaty’s evidence was that he thought he “touched” the brakes to slow the truck on approach to the bend at about point A.  If that were the case, then he would have been going faster than 79.92kmh at and before that point and slower than that speed as he reached point B.  I consider it unlikely that he touched the brakes quite so far from the bend and I do not accept that he slowed the vehicle between those points, except perhaps very shortly before point B.
  3. [245]
    The average speed between point B and point C was 74.984kmh.  The truck was clearly travelling faster than that speed as it passed point B because that average speed takes into account that the vehicle would have slowed between those points due to the trailer brakes locking up and it starting to skid while between them.  This is why I find that Mr Gallaty was driving closer to 80kmh at point B.
  4. [246]
    While I cannot determine the exact speed at which the truck entered the bend, I find that it was still travelling at a little less than 80kmh at that point and it continued at about that speed as it rounded the bend until the trailer started skidding.  In the absence of braking by Mr Gallaty (which I will discuss below), the truck would have slowed naturally while rounding the bend if Mr Gallaty had released the accelerator pedal in order to allow it to slow a little (or “back off”) and it was then slowed more rapidly once the trailer brakes were applied.  This is also supported by Mr Gallaty’s statement to Constable Kruys that he was doing the speed limit and “just backing off coming into the corner.”[129]
  5. [247]
    Between points C and D, the average speed of the truck and trailer slowed to 62.136kmh.  That was caused by a combination of the application of the trailer brakes and the collision with the bus.  Both of those events would have slowed the truck and trailer to a speed considerably lower than that average, which demonstrates that, as at point C, the truck was travelling faster than that average.

Vehicle path on the road

  1. [248]
    The dash camera footage does not reveal exactly where on the road the truck was situated at all times.  However, I have viewed that footage several times, both running and stopping between frames.  I also have the assistance of the still pictures from that footage shown in Mr Sculthorpe’s report.  I find that, just before it entered the bend, the truck was situated toward the centre of the lane but, just after the bus came fully into view, the truck moved toward the left side. 
  2. [249]
    I do not accept the evidence of the eye witnesses to the effect that the truck’s wheels were on or over the centre white lines.  I find that at all times the truck travelled with its right wheels in the southbound lane.  Indeed, as I have said, the truck’s right wheels were well within the lane as Mr Gallaty took it to the left side.
  3. [250]
    Nor do I accept that Mr Gallaty “reefed” the steering wheel to the left in a manner and at a time that caused or contributed to loss of control of the trailer.  The dash camera footage would have shown the effect of any such motion, but it does not. 
  4. [251]
    Mr Gallaty said that, as he entered the bend, he may have moved a little to the right to negotiate the corner.  That is reflected in the dash camera footage at about 1:12:23-24.  I accept that he did move to the right side of his lane at about the start of the bend.  But he then moved to the left (at about 1:12:26), probably to distance his truck from the oncoming bus that had just become visible.
  5. [252]
    The bus became visible to Mr Gallaty just before the front of his truck reached the first chevron and almost exactly where the mark identified by Snr Const Campbell as a heavy wheel mark started.  At that stage, I find that Mr Gallaty turned the steering wheel more to the left, causing the truck to go closer to the left side of the road.  His movement of the wheel was not so sudden as might be called a “reefing” motion.  I am not satisfied that Mr Gallaty made any sharp movement of the steering that caused or contributed to the collision.
  6. [253]
    I find that the mark on the road that Snr Const Campbell said was a heavy vehicle mark was indeed such a mark and that it was made by the front right wheel of the truck as it rounded the bend.  That mark first appears at the same point where the camera footage shows the truck moving from the centre to the left of the lane.  I accept Snr Const Campbell’s evidence that the wheel mark on the road was recent.  He was the only witness who actually saw and examined it on the day of the collision.  Obviously, he was in a much better position to assess its recency that Mr Sculthorpe, who only saw photographs of it.  The mark shows up clearly in exhibit 8, photograph 34.  It does not appear in the dash camera footage.  Mr McDougall put to Snr Const Campbell that it does appear, next to the same crocodile cracks, at about 1:12:26 on the footage, and therefore it cannot have been made by Mr Gallaty’s truck.  In that footage, I can see a faint line just before and to the right of the crocodile cracks, but it is short and not a long consistent line, as appears in the photograph and as described by Snr Const Campbell.  I find that, in moving the truck from the right side of his lane toward the left side, Mr Gallaty caused the vehicle’s weight to shift to the right side, which in turn caused the heavy vehicle mark.
  7. [254]
    Snr Const Campbell also saw and examined the tyres on that day and eight days later.  Both his evidence and the photographs of the tyres show a clear mark on the walls of the right steer and drive tyres.  That mark on each tyre is clearly distinguishable from the dusty appearance both below the mark on each of those tyres and on other tyres of the truck.[130]  The photographs support Snr Const Campbell’s evidence that the marks on those tyres were fresh.  Both he and Mr Sculthorpe said that heavy vehicle marks on a tyre will fade and scuff quickly, or lose their lustre, if the truck is driven any substantial distance after they are made.  There was no sign of any fading or scuffing of these marks.
  8. [255]
    I am satisfied that the tyre marks on the tyres and on the road were fresh.  I also accept Snr Const Campbell’s evidence that he also saw a similar mark on the right drive tyre of the truck when he inspected it eight days later and that, to produce such a mark on the drive tyre, there must have been a substantial lateral force on the truck.
  9. [256]
    While Snr Const Campbell properly conceded that he could not exclude the possibility that the marks on the tyres were caused by the truck rounding a left hand bend earlier that morning, there is no evidence that would support such an hypothesis.  In the absence of any such evidence, it is entirely speculative and I do not accept that it gives rise to any reasonable doubt that the marks were made when Mr Gallaty’s truck rounded this particular bend on this occasion.
  10. [257]
    Finally, the dash camera footage showed the vehicle bumping as it went over clear defects in the road that were at about the same distance from the centre lines as the mark on the road indicates the truck’s front wheel was.  That gives additional support to my finding that the front right wheels were in such a position as to run over those bumpy parts of the road and to cause the heavy vehicle mark as they rounded the bend under considerable lateral force to the right.
  11. [258]
    I have recorded above[131] Mr Smith’s evidence that the marks on the tyres may have been caused due to under-inflation.  There is no evidence that the inflation of the tyres was checked after the collision.  However, Mr Gallaty gave evidence that, as far as he was concerned, the tyres were properly inflated.[132]  Mr Gallaty also gave evidence about the steps he took to maintain the truck and trailer and to have them maintained by Progressive Diesel Maintenance.  He was clearly careful to maintain the truck and the trailer as best he could.  That would include checking the tyres’ inflation.  I accept his evidence as to the inflation of the tyres.  There is no evidence to the contrary.  There is no basis to consider there to be any doubt that the tyres were properly inflated and I find that they were.
  12. [259]
    The marks on the tyres and on the road indicate both the path of travel of the truck and that it was travelling at a speed that caused its weight to shift substantially to the front right side wheels.  That shift in weight leads to me to infer that the speed was excessive for the curve of the path that the truck was following (particularly when moving to and along the left side of the lane) and caused the truck to lean to its right as it went around that curve.
  13. [260]
    It is also notable that the first right hand skid line from the trailer appears to the right of the heavy vehicle mark.  That indicates that the trailer was not, by that time, following the path of the truck indicated by the heavy vehicle mark.  That was because the force of the speed and the angle of the bend caused the trailer to move directly ahead and to the right of the truck’s path.

Conclusion on driving dangerously

  1. [261]
    I therefore find that the truck and trailer entered the bend at a little under 80kmh.  At the time of entering the bend, Mr Gallaty had positioned the truck close to the centre lines of the road, but he then steered it toward the left side of the road.  As it rounded the bend, the truck’s right wheels were about 800 to 870mm from the centre of the centre white lines, with its left wheels about 120mm over the left edge line.  The forces on the truck made it lean to the right as it rounded the bend, particularly as it curved to the left side of the road.  The trailer had difficulty following the truck due to the centrifugal force from the speed and the steepness of its path.
  2. [262]
    I find that it was dangerous for Mr Gallaty to enter and attempt to negotiate that bend at about 80kmh, particularly when towing an empty trailer.  Although he had successfully negotiated that bend at about that speed on earlier occasions, it was still dangerous to do so.  There was insufficient time or space to manoeuvre away from any large oncoming traffic and the forces on the trailer, in particular, created a real danger that it would not grip the road but would move across into the opposite lane.  That would obviously be dangerous to any oncoming traffic. 
  3. [263]
    Furthermore, it was not possible to see oncoming traffic until just into the bend, creating a further danger of leaving inadequate time and space to slow down or to vary the path of the truck and trailer (or both) sufficiently to remove any danger to oncoming traffic.  Mr Gallaty ought to have expected that there was a substantial possibility that he may pass oncoming traffic while going around that bend.  Indeed, the camera footage shows that, in the 1½ minutes since he had turned onto Waterford-Tamborine Road, eight oncoming vehicles had passed him.
  4. [264]
    Although the advisory speed limit was not an indication of a safe speed, it was foolhardy to enter the bend at twice that speed, particularly in a large truck towing a large, empty trailer.  While Mr Jeevaratnam later concluded that the appropriate comfortable speed to go around that bend was 60kmh, that does not mean that it was any less dangerous for Mr Gallaty to drive his truck and trailer around that bend at a little less than 80kmh.
  5. [265]
    It was also relevant that the road condition was poor.  It was cracked and bumpy, both on the approach to and in the bend.  (Even in the camera footage, and despite the cabin suspension, bumps were obvious.)  It is common sense that bumps like that, on a bend taken at speed, could well cause an empty trailer (particularly one with a steerable front axle) to move out of alignment with the truck, with consequent potential danger to other road users.
  6. [266]
    I find that, for Mr Gallaty to drive his truck and trailer around that bend at that speed was, at the least, potentially dangerous to the public.  It was actually dangerous to any vehicle near to, or coming around, that bend, given particularly the danger that centrifugal forces would cause the truck to overturn or the trailer to swing or slide into the path of oncoming traffic. Therefore, Mr Gallaty drove around that bend at a dangerously high speed for the condition of the road and the size and condition of the truck and trailer and having regard to the likelihood of meeting oncoming traffic as he rounded the bend.  I am satisfied beyond reasonable doubt that he operated his vehicle dangerously.
  7. [267]
    The remaining question is whether, by driving in that manner, Mr Gallaty caused Mr Bohlsen’s death.  I can only find that he did if I am satisfied, beyond reasonable doubt, that his dangerous driving was a substantial or significant cause of Mr Bohlsen’s death or contributed substantially to it.  That requires consideration of the cause or causes of the trailer’s brakes locking up.

What caused the trailer brakes to lock?

  1. [268]
    It is clear that the trailer’s movement onto the opposite side of the road was a result of the centrifugal force on it caused by the speed and angle of its path around the bend and exacerbated by its brakes locking up so that it lost traction on the road.  If the brakes had not locked up, it is possible that it would not have travelled into the opposite lane.  It is therefore necessary for me to determine whether I can be satisfied, beyond reasonable doubt, what caused the brakes to lock.
  2. [269]
    There were three possible causes of the brakes being applied:  Mr Gallaty putting on the foot brake, ABA and SR.  The brakes having been applied, it is necessary also to consider whether the two faults in the trailer brakes caused or materially contributed to the trailer allegedly sliding out to the right. 

Active brake assist

  1. [270]
    There was considerable evidence about how ABA works.  The witnesses consistently said that it does not react to oncoming vehicles.  It can immediately tell whether or not an object that it has identified is travelling in the same direction as, or the opposite direction to, the vehicle in which ABA is installed (the primary vehicle) by, among other things, comparing the speed at which the primary vehicle is travelling with the speed at which the vehicle and the identified object are approaching each other.  It can also identify whether the other object is in the primary vehicle’s path of travel by taking account of the steering wheel angle sensor.  It performs these calculations extremely quickly. 
  2. [271]
    The evidence was clear that ABA does not react to oncoming vehicles.  It was also clear that ABA operates in three stages when it recognises a danger ahead, each stage separated by a minimum of one second.
  3. [272]
    As I have noted above, the defence relied on Mr Tilney’s evidence that one cannot be 100% certain that ABA did not react to the bus, perhaps by mistaking it for an object in or crossing the truck’s path of travel.  That, it was submitted, was sufficient to give rise to a reasonable doubt that the speed at which Mr Gallaty chose to take the corner caused the brakes to be applied by him or the SR system.  In other words, there is a reasonable possibility that ABA caused the brakes to operate.
  4. [273]
    However, as Mr Boyle submitted, it is not necessary, in order for me to satisfied that the ABA did not operate in this instance, that I be satisfied to the level of scientific certainty.  McPherson J, sitting in the Court of Criminal Appeal 30 years ago, explained in words that still apply:[133]

The standard of proof in criminal proceedings is not proof beyond doubt but proof beyond “reasonable” doubt.  What is required of the prosecution in discharging the onus of proof of guilt is not that every possibility of innocence be excluded by the evidence but only that every reasonable possibility be excluded.  It is only if the jury “think there is that reasonable possibility” of innocence that “it is one which to the jury would raise a reasonable doubt as to the guilt of the accused”: R. v. McKenna (1964) 81 W.N. (Pt 1) (N.S.W.) 330, 334 per McFarlane J.  The existence of an admitted possibility but one that is assessed by experts in the field as being “extremely unlikely”, or “very remote”, or the result of a “very rare coincidence” is not sufficient to introduce a reasonable doubt precluding the jury from being satisfied to the requisite standard of the proof of guilt.

  1. [274]
    The defence postulated that, rather than reacting to oncoming traffic, the radar may have mistaken the bus for a stationary object in the truck’s path as it scanned the bus while the bus passed from left to right of the radar’s cone of vision.  There was some suggestion, in Mr McDougall’s questioning, that perhaps ABA radar would react to a vehicle passing directly across its path (such as from one side to another), because then the primary vehicle would be closing on the crossing vehicle at the speed of the primary vehicle. 
  2. [275]
    Mr McDougall also submitted that about three seconds passed from the first sight of the bus to the lock up of the brakes:  enough time for the ABA’s three stages to actuate.  However, that is clearly not the case.  The bus was not visible to Mr Gallaty until the truck was past point B, the bus was not within 15 degrees of the centre of the truck (where the radar was situated) for a short time after that, the brakes came on well before point C and the total time from point B to point C was a maximum of 2.33 seconds.  The ABA did not have time to go through stages one and two and to apply the full brakes at stage three between the point at which the bus came into view and the point at which the skidding started.
  3. [276]
    There was nothing in the truck’s manual that indicated that ABA may mistake crossing traffic.  Based on the data that it processes, I consider it quite possible that it might initially and momentarily identify such traffic as an object in the primary vehicle’s path.  Of course, as soon as the crossing vehicle passed, ABA would register that it was no longer in its path.  But I do not accept that the ABA system in Mr Gallaty’s truck would have mistaken the bus for crossing or stationary traffic in its path.  At all times it was clear that the bus was travelling toward the truck, even though not directly toward it (as they were on a curve).  The closing speed would clearly have been substantially in excess of the truck’s speed and the wheel sensor would also have communicated that the truck was turning to the left.  The radar refresh rate (30 times a second) would have enabled it to identify the true situation immediately.  I do not consider that hypothesis to have any substance.
  4. [277]
    I am satisfied that ABA did not react to the oncoming bus and actuate the truck’s or the trailer’s brakes.  Given the evidence of the experts, there is no reasonable possibility that it did so.  The ABA system is fast and reliable in identifying and not reacting to oncoming traffic.  While Mr Tinley properly conceded that he could not be 100% certain that it would not misread the situation, he was 99.9% certain.  That does not give rise to any reasonable doubt.
  5. [278]
    I do not dismiss Mr Gallaty’s evidence that the ABA alarm sounded and the truck’s brakes were applied at the same time.  I do not consider that Mr Gallaty was lying in recalling those facts.  However, I consider that he was unsure and mistaken as to the timing.  Of course, it all happened very quickly: less than 3.25 seconds from the moment when the bus was first fully in view and, it would seem, a fraction of a second from the time the trailer first started skidding to the time that it hit the bus.  As Mr Gallaty said in his formal interview, it all happened very quickly and instantly.[134]  I do not doubt that ABA operated, but I find that it did not do so until the truck turned sharply to the left, toward the trees, at the moment that the trailer hit the bus.  The trees then ahead would immediately have caused the ABA alarm to operate.  Mr Gallaty said he did not apply the brakes even then, but clearly brakes were applied to bring the truck to a stop over a few seconds.  If Mr Gallaty did not apply the brakes, then ABA must have done so.  In fact, once Mr Gallaty straightened up the truck alongside the road, I am sure that he brought the truck to a stop.
  6. [279]
    I am therefore satisfied, beyond reasonable doubt, that the ABA system did not cause the trailer’s brakes to operate.
  7. [280]
    That leaves open the operation of SR or manual braking by Mr Gallaty.

Stability control

  1. [281]
    Having moved over to toward the left side of the road as it entered the bend, the curve of the bend was tighter for the truck to go around (being closer to the inside of the bend) than it would have been if the truck had rounded the bend toward the centre of the road.
  2. [282]
    At a speed of over 75kmh, the centrifugal forces and the yaw rate of the truck would have been significant.  While there was no evidence of what forces (including yaw) must be generated in order to actuate SR,[135] the speed and direction of the truck are such that I can infer, beyond reasonable doubt, that they caused SR to actuate, particularly in light of the following matters.
  3. [283]
    Mr Gallaty gave evidence that he had experienced before the operation of SR when going around a bend.[136]  The reaction of the system on each of those occasions was to brake the trailer’s wheels sufficiently to cause it to skid a little, as indicated by what Mr Gallaty described as a bit of smoke coming from its tyres.  In his evidence, he contrasted those times, when no sideways skid was induced, with this occasion, when the brakes locked up completely and caused the trailer to skid to the right of the truck’s path.
  4. [284]
    However, Mr Gallaty’s explanation to Constable Kruys shortly after the collision is telling in this regard.[137]  In my view, it was far more likely to be a correct explanation in the circumstances in which it was made.  Mr Gallaty first mentioned SR and then clearly described the actuation of that system – a situation with which he was familiar, it having occurred before when he was rounding a bend.  He did not like the truck taking control out of his hands, so he had sometimes turned off SR while driving.
  5. [285]
    Each of Mr Simpson (who had the best view of the oncoming truck) and Mr Cantlon said that, when he first saw the truck coming around the corner, it was leaning to the right.  That evidence and the heavy vehicles marks on the road and the tyres are indicative of the speed at which it was negotiating the bend.  This is also supported by the position of the trailer (to the outside of the truck’s position) when it first started skidding.  That would have contributed to the instability of the combination.  The SR system would have translated the lean in terms of yaw factor.  Having regard to that factor, the speed of travel and the direction of travel, I have no doubt that it calculated there to be a risk of the truck tipping over or the combination jack-knifing.  It therefore, no doubt, applied some braking to the appropriate wheels of the truck (which did not skid because it had ABS), at the same time actuating the trailer’s brakes, which would tend to prevent the truck tipping or the combination jack-knifing, as well as slowing them.  Although Mr Gallaty gave evidence that all the brakes came on together,[138] I consider that he was mistaken in that, while the trailer’s brakes came on just past point B, there is no other evidence that the truck’s brakes were applied aggressively until after the collision occurred.
  6. [286]
    Unfortunately, the application of the trailer’s brakes at that speed, on that bend and on an empty trailer caused the wheels to lock and the trailer then to skid in the direction of the forces then acting on it.
  7. [287]
    I am therefore satisfied, beyond reasonable doubt, that the truck’s SR actuated the brakes.  The SR was caused to intervene because of the speed at which Mr Gallaty drove the truck and trailer around the bend.  Although he had not experienced that event happening when SR had actuated in the past, only a small increase in speed could (and did in this instance) have a dramatic effect on the trailer’s behaviour.

Braking by Mr Gallaty

  1. [288]
    At one stage of his evidence, Mr Gallaty said that he had “just braked up, hit the brake for the corner” and the alarm came on not long after that.  That is somewhat inconsistent with his attempt to identify, on exhibit 30, where he applied the brakes to slow the truck.  His identification of a point about 40 metres before the start of the corner is also shown to be wrong by the average speed at which he was travelling between that point (point A) and the start of the bend (point B).
  2. [289]
    It is possible that, when he entered the bend, at the same time as moving the truck from near the right side of the lane to the left side, Mr Gallaty also pressed the brake.  That would be a not unexpected, and perhaps even automatic, reaction for someone who may have realised that his truck was too close to the oncoming vehicle and, perhaps, taking the bend too fast in the circumstances.  However, the evidence of exactly when and how hard Mr Gallaty braked is vague.  There is certainly no indication in the dash camera footage that he braked hard, if at all, any time before the collision.  I am not satisfied that any application of the brakes by Mr Gallaty occurred or caused the trailer to lock up and skid into the opposite lane.

The brake system faults

  1. [290]
    As I have recorded above,[139] Mr McDougall submitted that the larger brake chamber is likely to have caused the left hand rear brake to have activated before the remaining brakes on the trailer, with the effect of causing the trailer to have a tendency to slide to the right and into the opposite lane. 
  2. [291]
    I do not consider Mr McDougall’s submission at [199] to be persuasive.  The logic that a few extra kilometres per hour may cause a truck to become unstable does not necessarily apply to differences in braking power caused by an oversized brake chamber or by a missing clevis pin.  It is true that the extra braking power may have caused the rear left brakes to lock those wheels momentarily before the other wheels locked, but it was clear from Mr McLaren’s evidence that that would be a matter of milliseconds.  Although Mr Collins said that such a difference in braking power could create a dangerous situation, his answer was not persuasive as he had said, immediately before, that he needed more information;  nor was he told what size differential there was in this case.  Mr Smith’s answers that the size difference in this case could create an instability in the braking mechanism of the trailer and could potentially lead to a dangerous situation were hypothetical, limited to “in certain instances” that were not explained and said especially to apply if the relevant axle was steerable.  The fourth axle on Mr Gallaty’s truck was not steerable.  Therefore his answers were also unhelpful.
  3. [292]
    The skid marks are revealing.  As shown on exhibit 4, there were two initial skid marks that commenced about three to four metres before a second set of two marks commenced and then another three to four metres before a third set of two marks commenced and then another three to four metres before a fourth set of two marks (totalling marks from eight tyres) began.  This seems to indicate that the wheels on the trailer did not all lock up together.  Unfortunately, none of the witnesses sought to explain that pattern of skidding and counsel did not comment, apart from Mr Boyle briefly submitting that the first set may have been caused by the rear axle locking up moments before the rest, due to the oversized brake chamber.  What it does not demonstrate is that any prior locking of that axle caused any diversion to the right, nor any additional effect to that of the other brakes locking moments later.  Indeed, the skid marks show that the trailer did not actually swing or skid to the right;  rather, its inertia kept it going in the same direction in which it had been travelling.  However, it no longer followed the path of the truck.[140]  That indicates that it did not have, or act on, any tendency to slide to the right.
  4. [293]
    Thus I find that the presence of the large brake chamber did not cause or contribute to the collision.
  5. [294]
    Mr McDougall did not rely on the missing clevis pin in his closing address.  That is not surprising, as the evidence was that, if anything, it would have acted against the tendency of the trailer to continue in its direction of travel into the opposite lane.  I find that that fault did not contribute to the collision.

Conclusion on cause of braking

  1. [295]
    Having regard to the evidence and these findings, I am satisfied, beyond reasonable doubt, that the cause of the braking of the trailer was the application of the brakes by the SR system of the truck as a result of the instability of the truck as it travelled at speed around the bend.

Defence of accident

  1. [296]
    This leads me to consider the defence of accident under s 23 of the Code.  It is necessary to consider the section’s application, separately, to dangerous operation of a vehicle on the one hand and to dangerous operation causing death on the other.  Unless the Crown proves, beyond reasonable doubt, that this defence does not apply in the circumstances of this case, I must acquit Mr Gallaty of the charge.  I shall consider the alleged offence as charged first.
  2. [297]
    In considering whether this section applies, I must identify clearly the act in question and the event that was caused by it.  The event in question comprises the consequences of the act. 
  3. [298]
    The defence relied, in the alternative, on both paragraphs of subsection 23(1).
  4. [299]
    As I have said, Mr McDougall submitted that the “act” that occurred independently of the exercise of Mr Gallaty’s will was the actuation of the braking mechanism that caused the trailer’s wheels to lock up.  With respect, I do not accept that submission.  In the context of the chapeau to the subsection, I consider that the “act” or omission referred to is an act or omission of the charged person or some other person, committed independently of the defendant’s will.[141]  An “act” is a “bodily action, which either alone or in conjunction with some quality of the action, or consequence caused by it, or an accompanying state of mind, entails criminal responsibility.”[142]  It does not extend to an act or omission of a machine, but it extends to the intentional use of a machine by a person.  Thus, in a different context, a person could be criminally responsible for the consequences of driving a vehicle forward only if the person made a choice to drive the vehicle by pushing the accelerator.[143]  An action of a machine, independent of the actions of a person, may instead be excused under paragraph (b) in relevant circumstances.
  5. [300]
    It is a defence to a charge of dangerous driving, or of dangerous driving causing death, that the driver was deprived of the control of the vehicle by a mechanical defect in the vehicle of which the driver had no knowledge and which was not a defect that the driver would have discovered with reasonable prudence.[144]  However, I consider that such a defence falls within paragraph (b), not paragraph (a) of s 23(1).
  6. [301]
    But even if I were wrong in this conclusion, it does not seem to me that the actuation of the SR system, in attempting to correct the truck’s instability, was an act independent of Mr Gallaty’s will.  There is no doubt that Mr Gallaty intended to drive his truck and trailer around the bend at the speed at which he was driving.  That is, the act of driving around that bend at that speed was the product of his free will.  The actuation of SR was a direct result of Mr Gallaty’s will in consciously navigating the bend at the speed he did:  it was a result of that act of will, not independent of it.  I see no application of paragraph (a) in the circumstances of this case.
  7. [302]
    Turning to paragraph (b), the “event” must be the consequence of an “act”.  Speaking generally, a defendant is not criminally responsible for the consequences of an act or omission if the defendant did not intend those consequences, or reasonably foresee them, and a reasonable person in the defendant’s position would not have reasonably foreseen the consequences as a possible consequence of the act or omission.  As has been said,

A number of occurrences can as a result of the operation of one or more chains of causation follow upon the doing of an act.  However, s 23 is concerned to excuse from criminal liability so the relevant event for the purpose of the section should be taken to be the one which, apart from the operation of the section, would constitute some factual element of an offence which might be charged.[145]

  1. [303]
    The act, in this case, is that of Mr Gallaty driving this particular, unladen truck and trailer around the bend at the speed at which he was driving at the time.  The event is the death of Mr Bohlsen, which was caused by the trailer travelling into his lane, so that it collided with his bus.  His death is the consequence that constitutes a factual element of the offence charged.
  2. [304]
    The evidence raising the possibility of the excuse of accident in this case is:
    1. (a)
      the possibility, put forward by the defence, that ABA operated incorrectly, causing the trailer brakes to lock up; and
    2. (b)
      as a matter independent of ABA, that the outsized brake chamber caused the trailer to slide to the right of the truck’s path because it led the rear left wheels to lock up before the other wheels.
  3. [305]
    That evidence raises for consideration the possibility that neither the defendant nor an ordinary person would reasonably have foreseen that a person might be killed by the trailer travelling into the path of an oncoming vehicle when it was unladen and was towed around that corner at that speed – that is, that the event that in fact occurred would occur.
  4. [306]
    If, on the whole of the evidence, the prosecution has not persuaded me, beyond reasonable doubt, that:
    1. (a)
      Mr Gallaty intended that the trailer would skid as it went around the corner and collide with any oncoming vehicle; or
    2. (b)
      Mr Gallaty reasonably foresaw that the trailer would possibly skid into the opposite lane as a possible consequence of his act of driving his empty truck and trailer around the bend at that speed, in which case it would collide with any oncoming vehicle; or
    3. (c)
      an ordinary person, in the position of Mr Gallaty, would have reasonably foreseen that the trailer would skid into the opposite lane as a possible consequence of driving his empty truck and trailer around the bend at that speed,

then the excuse of accident applies, and Mr Gallaty would be not guilty of the offence.

  1. [307]
    Importantly, it is not for Mr Gallaty to prove anything. 
  2. [308]
    There is no doubt that Mr Gallaty did not intend or foresee that his trailer would skid into the opposite lane and collide with an oncoming vehicle, causing the death of a person in that vehicle.  I can exclude entirely the possibilities referred to in [306](a) and (b) above. 
  3. [309]
    The question for me to consider, therefore, is whether the Crown has persuaded me, beyond reasonable doubt, that an ordinary person in Mr Gallaty’s position would (not could) reasonably have foreseen that the trailer would travel across into the opposite lane and collide with an oncoming vehicle, as a possible consequence of Mr Gallaty’s act in driving his empty truck and trailer around the bend at that speed.  Unless the Crown has persuaded me of that fact, then Mr Gallaty is entitled to the benefit of this excuse and I must acquit him of the offence of dangerous operation of a vehicle causing death.
  4. [310]
    A person in Mr Gallaty’s position would have the same knowledge and experience as Mr Gallaty had, both generally as a driver and of the characteristics of his truck and trailer.
  5. [311]
    Even if I reject Mr Gallaty’s account of what happened, I must still consider the possibility that the event occurred unforeseen and unintended.
  6. [312]
    In considering whether an ordinary person would have foreseen such an event, I should focus on whether the skidding of the trailer into the opposite lane, leading to the death of a person in an oncoming vehicle, was foreseeable as something which could happen, disregarding possibilities that are no more than remote or speculative.  This is because the section calls for a practical approach and is not concerned with theoretical remote possibilities.[146]
  7. [313]
    Mr Gallaty knew that his truck had SR.  He had experienced SR operating in similar circumstances, although it did not cause the trailer to slide across the road on the two occasions that he had experienced it.  Nevertheless, he knew that it would operate when the system detected that he was driving around a bend at a speed that made the truck and trailer unstable.  Mr Gallaty also knew that the trailer did not have ABS and the heavy application of its brakes could cause its wheels to lock up.[147]  He knew that the trailer had a steerable front axle and a ball race turntable.  Finally, he knew that both the truck and the trailer were unladen, which may affect their stability on the road.
  8. [314]
    In my opinion, a reasonable person in Mr Gallaty’s position would foresee that, if he drove the unladen truck and trailer around a bend at too high a speed, the SR may detect incipient instability and may apply the trailer’s brakes.  As it did not have ABS, that would be likely to lock up all the trailer’s brakes and cause it to start skidding.  Depending on its speed around the corner, once it started skidding, the trailer may not follow the truck around the corner, but may travel straight ahead or to the right, moving into the opposite lane and colliding with any oncoming vehicle.  In the result, an ordinary person would foresee the death of a person in an oncoming vehicle as a possible consequence of the act of driving around the corner at too high a speed.
  9. [315]
    If it be necessary to consider whether the defence can apply to the lesser charge of dangerous operation of a vehicle (not causing death), it would clearly have been foreseeable to an ordinary person in Mr Gallaty’s position that to drive around that bend in that combination at that speed would be dangerous (in the ordinary sense that I have described at [24] above) to other traffic or persons on or next to the road at the bend.  Section 23 can have no application to that situation.
  10. [316]
    Therefore, the Crown has satisfied me, beyond reasonable doubt, that the defence under s 23 does not apply in this case.

Conclusions and verdict

  1. [317]
    I have found that it was dangerous for Mr Gallaty to drive his unladen truck and trailer around that bend at that speed.  His act of driving in that manner caused the stability control system in his truck to actuate the trailer’s brakes, which caused it to travel into the opposite lane and to collide with the bus being driven by Mr Bohlsen.  The injuries sustained by Mr Bohlsen in that collision caused his death a few days later.  Therefore, Mr Gallaty’s manner of operating his truck and trailer caused Mr Bohlsen’s death.
  2. [318]
    In these highly unfortunate circumstances, I find Mr Gallaty guilty of dangerous operation of a vehicle causing death.

Footnotes

[1]  I take this measurement from exhibit 7, an aerial photograph of the surrounding area with a scale of 1:2500.

[2]  Code, s 615B(1).

[3]  Code, s 615B(3).

[4]  Code, s 615C(1).

[5]  Code, s 615C(3).

[6]  Code, s 328A(4).

[7]  Code, s 1.

[8]  Code, s 328A(6).

[9]King v The Queen (2012) 245 CLR 588.

[10] R v Jiminez (1992) 173 CLR 572, 583;  R v McBride (1966) 115 CLR 44, 50-51.

[11] Jiminez, 579.

[12]McBride, 49-50.

[13] McBride, 50.

[14] Royall v The Queen (1991) 172 CLR 378, 398, 411-412, 423.

[15]  These admissions are made in exhibit 2.

[16]  Set out in the particulars of the charge, exhibit 1.

[17]  That is, an anti-skid braking system that prevents the wheels locking up fully and therefore skidding.

[18]  The electronic stability control function in this truck was labelled SR, which appears to be a shortened anagram of the German term for what is now a part of the stability control system known as “drive slip control” – Antriebsschlupfregelung.  I shall therefore refer to it either in that manner or simply as stability control.

[19]  By “reef”, Mr Simpson meant that the driver turned the steering wheel suddenly:  T2-67:43-46.

[20]  References to the “timer” or “counter” are to the timer embedded in footage from Mr Gallaty’s dash camera installed in the truck.  That footage forms part of exhibit 10.  The collision occurred at 1:12:29.

[21]  It was not put to her that Mr Simpson was at least partially blocking her view, as seems likely.

[22]  Whether the mark was a heavy vehicle tyre mark and whether it was caused by Mr Gallaty’s truck were contentious.  I will review the evidence closely later.

[23]  Exhibits 3 and 4 are plans showing the resting places and tyre marks plus some features of the roadside.  Exhibit 6 is the aerial photograph.

[24]  Exhibit 5.  The speeds were calculated by Mr Woodcock, who explained the process in three reports (exhibit 20), supplemented by oral evidence.

[25]  Exhibit 7.

[26]  To clarify, that is the time of day recorded in hours:minutes:seconds on the data recorder.

[27]  Exhibits 8, 9, 10, 11 and 12 respectively.

[28]  T1-29:5-18;  T1-54:7-28.

[29]  T1-31:30-45.  That tyre was on the second axle from the front of the vehicle:  the front axle under the tipper body, as opposed to the steering axle under the cabin.

[30]  Mr Gallaty later gave evidence that he had measured the distance from the outside edges of the left and right tyres at 2.32 to 2.33 metres.

[31]  On my calculation, if the mark was a heavy vehicle mark made by the truck’s right hand steering tyre, then the left side of the left front tyre would have been 120mm over the left edge line and the right side of the cabin would have been 620mm to the left of the centre of the road.

[32]  T1-52:18-23, 34-36.

[33]  T1-49:26 to T1-51:7.

[34]  Exhibit 15.

[35]  In doing so, it takes account of both the information from the radars and information about the truck’s operation by the driver.

[36]  The suspension of the truck can be adjusted up and down and must be level in order to drive safely and for ABA to operate (so the radars are pointing forward, not up or down).

[37]  Exhibit 15, report of 4 August 2020, item 6 and T2-16:15-33.

[38]  Exhibit 17.

[39]  Exhibit 32.

[40]  In fact, he was not.  The manual says, “ABA does not react to … oncoming vehicles” – exhibit 16, p214.

[41]  Exhibit 18.

[42]  Although he referred to SR using the terms ESC (electronic stability control) and RSC (roll stability control).

[43]  Exhibit 20.

[44]  Nearmap is accurate to within 0.3 metres.  Mr Woodcock explained his methodology in far more detail, both in his reports and in his oral evidence.

[45]  That depiction was superimposed onto Snr Const Campbell’s chart (exhibit 3) to create exhibit 5.

[46]  T5-26:16-39.  (The transcript of the addresses is not paginated as 5-26 etc, but it was the fifth day of the trial, so I will refer to that day’s transcript in that manner.)

[47]  Exhibit 24.

[48]  Relevant extracts from that manual are exhibit 26.  The manual reflects the Australian standard.

[49]  It also prescribes an alternative method using an electronic accelerometer.

[50]  The cross fall is the angle of the road from one side to the other.  Around a curve, it tilts so that it is lower on the inside of the curve than the outside.

[51]  Exhibit 25.

[52]  The recording is exhibit 13.  The original transcript is exhibit 14, but the parties agreed on corrections to that transcript, which are marked up in exhibit 29.  I have compared the recording with the transcript and I agree with the corrections.

[53]  The recording is exhibit 11.  The original transcript is exhibit 12.

[54]  Exhibit 21.

[55]  A slack adjuster is the automatic brake adjuster to which Mr Cheyne and Mr McLaren referred:  see [91] and [100] above.

[56]  Mr Graham was not expressly giving evidence as an expert, although no objection was taken to this opinion being expressed and he was invited to express it in both examination in chief and cross-examination.  It appears to be consistent with the evidence of Mr McLaren referred to at [101] above and, as it appears to favour the defence, I shall take it into account.

[57]  Exhibit 28.

[58]  However, the clevis pin was missing from the third axle at the time of the collision.  Mr Walker worked on the second and fourth axles on this day.  It seems unlikely that he would have noticed a missing pin on an axle on which he was not working.

[59]R v E (1995) 89 A Crim R 325, 330.

[60]R v Armstrong [2006] QCA 158, [34].

[61]  Exhibit 29B, T9:55 to T10:58.

[62]  I take this to be quoting from the officer’s note of what Mr Gallaty had previously told him.

[63]  Exhibit 29B, T15:32-49.

[64]  Exhibit 29B: T16:37-43.

[65]  Exhibit 29B, T19:10-15

[66]  Exhibit 29B, T19:20-28.

[67]  The video is exhibit 11 and the transcript is exhibit 12.

[68]  Exhibit 12, T22:13-51;  exhibit 11, 23:43 to 25:18.  I have watched and listened to the interview (exhibit 11) and record here what I heard, with the assistance of the transcript.  Times recorded are those showing on the screen of the video.

[69]  Exhibit 12, T23:24-56;  exhibit 11, 26:12-26:50.

[70]  Exhibit 12, T34:30 to T35:22;  exhibit 11, 37:20 to 38:30.

[71]  Exhibit 12, T43:45-53;  exhibit 11, 49:17-49:21.

[72]  Exhibit 12, T46:37-51;  exhibit 11, 52:29-52:51.

[73]  Exhibit 12, T48-55.

[74]  A “dog” is a type of trailer.

[75]  The marked copy is exhibit 30.

[76]  T4-6 to T5-18.

[77]  T4-7:23-28.

[78]  T4-10:44 to T4-11:3.

[79]   T4-11:17-22.  Where I have inserted words after the transcript shows something as indistinct, I heard the words that I have inserted.  Where I insert words in brackets, they are additional words not recorded in the transcript, or corrections to the words in the transcript included in the brackets.  All my words are in italics.

[80]  T4-13:34-44.

[81]  T4-14:9-15.

[82]  T4-19:23-31.

[83]  T4-20:21-33.

[84]  T4-21:31 to T4-22:21.

[85]  T4-30:31-38.

[86]  T4-31:14-43.

[87]  T4-32:28-33.

[88]  T4-37:5-31.

[89]  T4-39:10-31.

[90]  T4-40:28 to T4-42:8.

[91]  Although he appears to have attended considerably more educational programmes than Snr Const Campbell.

[92]  The report and a USB containing the videos are together exhibit 32.

[93] R v Quinn [1962] 2 QB 245, 247.

[94] R v Neilan [1992] 1 VR 57, 74-75.

[95]  This point is clearly when the front of the truck was just past point B in exhibit 5.

[96]  To be clear, I accept only the evidence comprising images 3, 4, 5 and 7 and the statements about them in paragraphs 4.38 (apart from the words “To establish the time … Ms Ivory” and “and assumed … were concerned”) and 4.39 (the first sentence only), together with paragraphs 4.36 and 4.37.

[97]  T4-62:1-29.

[98]  Exhibit 33.

[99]  T4-67:14 to T4-68:13.

[100]  T4-65:27-44.

[101]  T4-70:5-25.

[102]  In fact, Mr Boyle challenged Mr Gallaty’s evidence that the alarm came on at the same time as the brakes were first applied, and challenged his evidence that he consistently thought the brakes had been applied by the ABA.  He also put to him that the braking was caused by SR, not ABA.  But he did not directly put to him that he was not telling the truth in stating that the alarm had sounded.

[103]  T1-41:45-47.

[104]  Snr Const Campbell gave evidence that there was a clearly visible advisory speed sign facing traffic travelling north, depicting a right bend and an advisory speed of 40kmh:  T1-44:30-44.

[105]  In the frames at 1:12:26 and 1:12:27.

[106]  T36:1 to T37:19.

[107]  The latter proposition was not put to Snr Const Campbell or any other witness.

[108]  T3-6:5-8.

[109]  T3-26:38-47.

[110]  At [182] and [183].  He also described Mr Smith’s evidence in re-examination (see [184]), as perhaps the most important evidence in the trial.

[111]  T248:1-5, contrasting such a situation with those on pages 218-219 of the truck’s manual (exhibit 19).

[112]  Exhibit 1.  I have listed those alleged facts at [33] above.

[113]  Exhibit 12, T26:15, T28:27;  exhibit 29B, T15:34.  I add that Mr Gallaty’s evidence in the trial was that he was doing 77kmh, but less than that going around the corner: T4-11:14-15.

[114]  He accepted that I should give Mr Gallaty the benefit of the doubt and adopt the lowest average speeds calculated by Mr Woodcock.

[115]  Mr Boyle relied, in this respect, on the evidence of Mr Tilney at T2-13:1-12.

[116]  Exhibit 12, T26:58 to T27:1.

[117]  He referred to Mr Gallaty’s evidence at T4-19:23-31.

[118]  Marked D for identification.

[119]  Alarms would only sound if the ABA actuated.

[120]  This was put at T4-29:28 to T4-30:15.

[121]  Mr Tilney at T2-16:15-33.

[122]  In his second report, paragraph 6.

[123]  Mr Tilney at T2-10:18-29;  Mr Oliver at T2-35:40-45, T2-39:10-19.

[124]  Exhibit 29B, T9:55 to T10:2; T10:30-51.

[125]  Mr Cheyne at T2-45 to T22-46;  Mr McLaren at T3-54, T3-57:39-40, T3-62.

[126]  T3-57:26-32.

[127]  In his evidence, Mr Gallaty said he was travelling at 77kmh, but I do not accept his evidence in that respect.  He had previously said, in both interviews, that he was doing about 80kmh and Mr Woodcock’s evidence shows that to have been correct between points A and B.  Mr Gallaty did not demonstrate any basis for a speed of 77kmh, nor how he knew that he was travelling at that speed.

[128]  See the table at [94] above.

[129]  See [124] above.

[130]  The marks shown in exhibit 8, photographs 15 and 16, contrast with the absence of any such mark on the front left tyres in photographs 17 and 18.  Similarly, the mark on the right drive tyre in exhibit 9, photograph 1 contrasts with the absence of such a mark on the tyre behind it in the same photograph.

[131]  At [180].

[132]  T4-39:18.

[133] R v Summers [1990] 1 Qd R 92, 98-99.  Also, Macrossan CJ at 95:20-25.

[134]  See above at [130], [131] and [133].

[135]  As Mr McDougall pointed out:  see [198] above.

[136]  I have set out that evidence at [148] and [149] above.

[137]  I have set out that evidence at [123] above.

[138]  See [195] above.

[139]  At [199] to [203].

[140]  In this respect, I note in particular Mr Smith’s evidence that dog trailers such as this are especially prone to shifting their axis past the immediate path of the truck:  see [181] above.

[141]That it can extend to an act by another person, for example a co-offender, was made clear in R v Solomon [1959] Qd R 123, 128.

[142] R v Falconer (1990) 171 CLR 30, 38, applying Vallance v R (1961) 108 CLR 56, 64.

[143]R v Ellis [2007] QCA 219, [39] (Keane JA).

[144]R v Spurge [1961] 2 QB 205, 211; discussed in R v Bathe [2006] QCA 210, 45 MVR 278, [43].

[145] R v Taiters [1997] 1 Qd R 333, 335.

[146]R v Taiters [197] 1 Qd R 333, 338.

[147]As appears to have happened briefly on the two occasions he described, when he saw “smoke” from the wheels – clearly indicative of at least some of the trailer’s wheels locking up and skidding.

Close

Editorial Notes

  • Published Case Name:

    R v Gallaty

  • Shortened Case Name:

    R v Gallaty

  • MNC:

    [2020] QDC 230

  • Court:

    QDC

  • Judge(s):

    Barlow QC DCJ

  • Date:

    18 Sep 2020

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2020] QDC 23018 Sep 2020Date of conviction; found guilty by Barlow QC DCJ of dangerous driving causing death; accused’s trailer’s brakes activated causing it to skid into oncoming driver’s path; central issue at trial was cause of activation of brakes; Crown case that excessive speed actuated stability control mechanism (SR); defence case that Crown could not exclude erroneous operation of different brake system (ABA).
Primary Judgment[2020] QDCSR 147715 Oct 2020Date of sentence; sentencing judge (Barlow QC DCJ) found that offender had significant history of traffic offences, habit of driving vehicle to and beyond safe limits and cavalier attitude to safe speed; sentenced to 3 years’ imprisonment, suspended after 1 year for 3 years; disqualified from driving for 3 years.
Appeal Determined (QCA)[2021] QCA 80 (2021) 96 MVR 3628 Apr 2021Appeal against conviction dismissed; verdict not unreasonable; open to conclude that vehicle driven dangerously, that that caused deceased’s death, and that prosecution negatived Code s 23. Leave to appeal against sentence granted, appeal allowed, findings in respect of offender’s traffic history contrary to evidence; resentenced to 3 years’ imprisonment, suspended forthwith for 3 years, and disqualification for 2 years: Boddice J (Morrison JA and Lyons SJA agreeing).
Special Leave Refused (HCA)[2021] HCASL 22311 Nov 2021Application for special leave to appeal from [2021] QCA 80 dismissed; insufficient prospects of success: Keane and Gleeson JJ.

Appeal Status

Appeal Determined - Special Leave Refused (HCA)

Cases Cited

Case NameFull CitationFrequency
Jiminez v R (1992) 173 CLR 572
2 citations
Jump To
Cite 1 - (1992) 173 CLR 572
Cite 2 - (1992) 173 CLR 572
King v The Queen (2012) 245 CLR 588
1 citation
Jump To
Cite 1 - (2012) 245 CLR 588
McBride v The Queen (1966) 115 CLR 44
2 citations
Jump To
Cite 1 - (1966) 115 CLR 44
Cite 2 - (1966) 115 CLR 44
Monarch Building Systems Pty Ltd v Quinn Villages Pty Ltd [2006] QCA 210
1 citation
Jump To
Cite 1 - [2006] QCA 210
R v Armstrong [2006] QCA 158
1 citation
Jump To
Cite 1 - [2006] QCA 158
R v Bathe (2006) 45 MVR 278
1 citation
Jump To
Cite 1 - (2006) 45 MVR 278
R v E (1995) 89 A Crim R 325
1 citation
Jump To
Cite 1 - (1995) 89 A Crim R 325
R v Ellis [2007] QCA 219
1 citation
Jump To
Cite 1 - [2007] QCA 219
R v MMH [2020] QDC 70
2 citations
Jump To
Cite 1 - [2020] QDC 70
Cite 2 - [2020] QDC 70
R v Neilan [1992] 1 VR 57
2 citations
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Cite 1 - [1992] 1 VR 57
Cite 2 - [1992] 1 VR 57
R v Quinn; R v Bloom [1962] 2 QB 245
2 citations
Jump To
Cite 1 - [1962] 2 QB 245
Cite 2 - [1962] 2 QB 245
R v Solomon [1959] Qd R 123
1 citation
Jump To
Cite 1 - [1959] Qd R 123
R v Spurge [1961] 2 QB 205
1 citation
Jump To
Cite 1 - [1961] 2 QB 205
R v Summers [1990] 1 Qd R 92
2 citations
Jump To
Cite 1 - [1990] 1 Qd R 92
Cite 2 - [1990] 1 Qd R 92
R v Taiters; ex parte Attorney-General [1997] 1 Qd R 333
3 citations
Jump To
Cite 1 - [1997] 1 Qd R 333
Cite 2 - [1997] 1 Qd R 333
Cite 3 - [1997] 1 Qd R 333
R. v McKenna (1964) 81 W.N. (Pt 1) (N.S.W.) 330
1 citation
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Cite 1 - (1964) 81 W.N. (Pt 1) (N.S.W.) 330
Royall v The Queen (1991) 172 C.L.R 378
1 citation
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Cite 1 - (1991) 172 C.L.R 378
The Queen v Falconer (1990) 171 CLR 30
2 citations
Jump To
Cite 1 - (1990) 171 CLR 30
Cite 2 - (1990) 171 CLR 30
Vallance v R (1961) 108 CLR 56
1 citation
Jump To
Cite 1 - (1961) 108 CLR 56

Cases Citing

Case NameFull CitationFrequency
R v Gallaty [2021] QCA 80 1 citation
1

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