New South Wales District Court CITATION: John Veigel v Christine Broughton & Ors; Christine Broughton v Nominal Defendant & Ors [2009] NSWDC 397 HEARING DATE(S): 27 April to 1 May, 5 to 8 May, 11 to 15 May 2009 JUDGMENT DATE: 19 June 2009 JURISDICTION: Civil JUDGMENT OF: Walmsley SC DCJ CATCHWORDS: TORT – Negligence – Causation - Motor Vehicle Accident - Retrial - Failure of Party to Call Witness – Significance of Lies – Dangers of Identification Evidence Concerning Motor Vehicle – Preconditions for Finding Against Nominal Defendant – Significance of Flight of Alleged Driver After Collision LEGISLATION CITED: Evidence Act 1995 Motor Accidents Compensation Act 1999 Coles Supermarkets Australia Pty Ltd v Tormey [2009] NSWCA 135 R v Jovanovic (1997) 42 NSWLR 520 R v DBG [2002] NSWCCA 328 CASES CITED: R v Clout (1995) 41 NSWLR 312 Howell v The Nominal Defendant (1961-2) 108 CLR 552 R v Edwards (1992) 173 CLR 653 R v Renzella [1997] V.R. 88 Edwards v The Queen (1993) 178 CLR 193 John Veigel v Christine Broughton & Ors Plaintiff - John Veigel First Defendant - Christine Broughton Second Defendant - The Nominal Defendant Third Defendant - Mr Elwin Bell Fourth Defendant - Mr Jamie Gary Dee Fifth Defendant - Mr Dean Davis PARTIES: Christine Broughton v Nominal Defendant & Ors Plaintiff - Christine Broughton First Defendant - The Nominal Defendant Second Defendant - Mr Elwin Bell Third Defendant - Mr Jamie Gary Dee Fourth Defendant - Mr Dean Davis FILE NUMBER(S): 8279/2002; 1082/2004 John Veigel v Christine Broughton & Ors Plaintiff - Mr A J Black Second Defendant - Mr R Stitt QC and Mr D Wilson Third and Fourth Defendants - Mr J Maconachie QC and Mr C L Thompson Fifth Defendant - Mr R W Seton SC and Mr P Carr COUNSEL: Christine Broughton v Nominal Defendant & Ors Plaintiff - Mr C T Barry QC and Mr P Frame First Defendant - Mr R Stitt QC and Mr D Wilson Second and Third Defendants - Mr J Maconachie QC and Mr C Thompson Fourth Defendant - Mr R W Seton SC and Mr P Carr John Veigel v Christine Broughton & Ors Plaintiff - Stacks/Goudkamp Second Defendant - Sparke Helmore Lawyers Third and Fourth Defendants - Carroll & O'Dea Lawyers Fifth Defendant - Curwoods Lawyers SOLICITORS: Christine Broughton v Nominal Defendant & Ors Plaintiff - Keddies Lawyers First Defendant - Sparke Helmore Lawyers Second and Third Defendants - Carroll & O'Dea Lawyers Fourth Defendant - Curwoods Lawyers JUDGMENT Introduction 1 The question to be decided in this case is who was responsible for a collision which occurred at about 2.10pm on 11 February 2001 on the Princes Highway, just a few kilometres north of Bega, when a line of trucks, caravans and semitrailers used by people in the side show industry, was making its way to the Bega show. The collision involved two cars which collided head on in a northbound lane. The car coming from the north, just before the collision, crossed onto its incorrect side. It did so by reason of the action of the driver of a truck towing a caravan. That truck had moved across from an adjoining overtaking southbound lane, forcing it to leave its lane and move across to the northbound lane. Mr Veigel, the driver of the northbound vehicle, was very severely injured. He was unconscious for two months afterwards and recalls nothing of the collision. The driver of the southbound vehicle, Mrs Broughton, was seriously injured. She did not lose consciousness. She was able to give evidence about the collision. 2 Arising from the injuries Mr Veigel and Mrs Broughton received, each of them commenced proceedings for damages. Each of them alleged the driver of the relevant truck had been either: (a) Mr Jamie Dee; (fourth defendant in Mr Veigel's case and third in Mrs Broughton's case) (b) Mr Dean Davis; (fifth defendant in Mr Veigel's case and fourth in Mrs Broughton's case) or (c) the driver of another vehicle, the identity of which cannot, after due enquiry and search, be established. The Nominal Defendant (second defendant in Mr Veigel's case and first in Mrs Broughton's) has been sued by both Mr Veigel and Mrs Broughton in respect of that third possibility. The Nominal Defendant, through its counsel, Mr R Stitt QC, (with Mr D Wilson) conceded when the trial commenced, that he would not submit Mr Veigel had failed to conduct due enquiry and search. In the course of the trial he announced the same concession in the case of Mrs Broughton. In addresses, no submissions were made about the issue of due enquiry and search. For reasons which later appear, that issue is not one which I have to decide. But had I been called on to do so, I would have found each of Mr Veigel and Ms Broughton had engaged in due enquiry and search. There was ample evidence to justify that finding in each of their cases. 3 In Mr Veigel's case, Mrs Broughton was joined as first defendant. The third defendant was Mr Elwin Bell, owner of the vehicle being driven by Mr Dee. In Mrs Broughton's case, Mr Elwin Bell was second defendant, and all defendants in her case alleged she had been guilty of contributory negligence. Before me however all three, through their counsel, informed me that that defence would not be relied on. 4 In a letter from the solicitors acting for Messrs Dee and Elwin Bell, dated 27 February 2004, they admitted: (a) On 11 February 2001 Mr Dee was driving motor vehicle registration number FG2 993, towing a caravan with the registration number F34-209, in a southerly direction along Princes Highway in NSW; (b) On 11 February 2001 Mr E Bell owned the vehicle with registered number FG2 993 and Mr Owen Bell owned the vehicle with registered number F34-209. A Previous Hearing 5 There was an earlier trial, resulting in a judgment against Mr Dee as driver and Mr Elwin Bell as owner, of the relevant vehicle, in favour of Mr Veigel, and a judgment (subject to a reduction of 50 per cent for contributory negligence) in favour of Mrs Broughton. Judgment was entered for Mr Davis and for the Nominal Defendant. 6 The Court of Appeal on 20 March 2008 set aside the orders against Messrs Dee and Bell and in favour of Mr Davis and the Nominal Defendant, and ordered all parties have a retrial, to determine only which of the defendants' negligence had caused Mrs Broughton's car to move into the path of Mr Veigel's car. The Court also set aside the finding of contributory negligence the first trial judge had made against Mrs Broughton. As clarified by the High Court of Australia on 26 August 2008 on a special leave application, the issues to be retried do not include any question about Mrs Broughton's part in the collision. When refusing leave to appeal from the Court of Appeal, Gleeson CJ said: "The retrial is to proceed on the following bases which are implied in order 15 of the orders made by the Court of Appeal: (a) A vehicle referred to in that order as "the offending vehicle" pulled out into the path of the vehicle driven by Mrs Broughton when Mrs Broughton's vehicle was overtaking vehicles in the left lane of the highway; (b) The driver of the so-called "offending vehicle" was at fault in pulling out into the path of Mrs Broughton's vehicle and that fault was a cause of the collision between Mr Veigel's vehicle and Mrs Broughton's vehicle; (c) The only available answers to the question about the identity of the owner/driver of the offending vehicle are (1) Mr E Bell, (2) Mr Jamie Dee, (3) Mr Dean Davis or (4) that the identity of the vehicle cannot, after due search and inquiry, be established. Consistently with the orders made by the Court of Appeal and implicit in order 15 was that Mrs Broughton herself was not at fault." (Hereafter I shall also call the vehicle responsible for the collision "the offending vehicle" and the driver responsible for the collision "the offending driver".) 7 Mr Veigel's damages have been agreed and paid. Mrs Broughton's damages are still to be assessed. I am not required in these proceedings to assess those damages. The Retrial 8 On the retrial, Mr Veigel's counsel, Mr A. J. Black, called Senior Constable Milton, the first police officer to reach the scene of the collision after it occurred. Then he called eye witnesses, viz Mr Hodkinson, Mr Lear and Mr Davis' former girlfriend, Ms Grey. He tendered the transcript of the evidence of Mr Lear's daughter, from the first trial, but did not call her. Mr C. T. Barry QC, who, with Mr P. Frame, appeared for Mrs Broughton, called only Mrs Broughton and a former police officer, Mr C. M. Fowler. The Nominal Defendant did not call any witnesses. Mr Maconachie QC, who with Mr C. T. Thompson appeared for Messrs Bell and Jamie Dee, called Mr Owen Bell, his father, Mr Elwin Bell, and Mr Dee. In the case of Mr Davis, for whom Mr R. W. Seton SC and Mr P. Carr appeared, witnesses called were Mr Davis, and his grandfather, Mr L. J. Davis. 9 In general terms the plaintiffs allege that the offending driver was in a long line of traffic on a single lane heading south towards Bega. At a point about ten kilometres north of Bega there is a bridge called Stoney Creek Bridge. To the south of that is an overtaking lane for south bound traffic. At that point the road goes up a hill with a right curve then a left. After the line of traffic arrived at Stoney Creek Bridge, Mrs Broughton was in the overtaking lane, when the offending vehicle moved across from her left, forcing her into the path of an oncoming car driven by Mr Veigel. 10 Mr Dee, who was driving a Hino truck (Mr Dee's truck) owned by Mr Elwin Bell, and towing a caravan owned by Mr Owen Bell, says he was not the driver of the offending vehicle, but he was told about the collision when he was ahead of the point of impact, and he stopped his vehicle at the top of the hill, where he found a place to park. His fellow employee, Mr Owen Bell, driving a semi trailer, (Mr Bell's truck) joined him there soon after, and the two returned on foot to the scene of the accident. Several eyewitnesses later saw Mr Dee's vehicle at the top of the hill and identified it as the offending vehicle. However several other witnesses (including Mr Bell) identified Mr Davis as the driver of the offending vehicle, which they said had kept going after the accident, driving south. Mr Davis denied he had been there at all that day. 11 I shall now summarise the evidence. As will have become apparent, two major issues in the case were: (a) whether an error of identification was made by the witnesses implicating Mr Dee's truck as the offending vehicle; and (b) whether Mr Davis was at the accident scene at the relevant time. 12 Ultimately there was no significant attempt by any party to show the collision had been caused by an unidentified vehicle, and the parties proceeded on the assumption it had been caused by either Mr Dee or Mr Davis. By agreement of all parties, the evidence in each case was also the evidence in the other. Evidence of Senior Constable Milton 13 The first police officer on the scene was Senior Constable Milton, who, on 11 February 2001, was stationed at Merimbula, on general duties. 14 On the afternoon of 11th February he received a radio call informing him of an accident on the Princes Highway, north of Bega. By the time he arrived, at 2.37pm, the Volunteer Rescue Association (VRA) personnel from Bega had arrived. Senior Constable Milton observed Mr Veigel's car, a white Datsun, against the railing, on the western side of the roadway. He observed Mrs Broughton's car, a green Holden Commodore, facing west. He concluded the two vehicles had had a head on collision. VRA members were trying to remove Mr Veigel from his car. Ambulance officers were treating the injured. 15 He spoke to Mrs Broughton, who, as it happens, he knew. Mrs Broughton told him she had been overtaking two trucks. When she got halfway past the first one the second had pulled out to overtake. She braked and swerved. She had nowhere to go. 16 He received no information while he was at the scene which assisted in identifying the offending vehicle. His primary concern was to control the traffic and record the details of witnesses. He appreciated, by reason of the seriousness of the injuries to some people, that he was dealing with a crime scene, and that specialist accident investigating police would later come to the scene and carry out their own investigation. 17 He estimated the point of impact as being less than 500 metres, perhaps 400 metres, to the south of the Stoney Creek Bridge on the Princes Highway. Immediately to the south of that bridge, he said, the southern carriageway became two, providing an overtaking lane. At the point of impact, the distance from Bega, could have been 10 kilometres. At a point about 500 metres to the south of the point of impact was the turn off to the Snowy Mountains Highway, which led to Cooma via Brown Mountain, and then to Canberra. 18 He travelled to the scene at a speed of up to 140 kilometres per hour. He did not recall what vehicles had driven past him from the north on his way to the scene. It took him fifteen to twenty minutes to drive to the scene from where he had been when he received the call. At the top of the hill before reaching the scene, but about 400 metres from it, he observed two vehicles parked on the eastern side, one with a silver coloured trailer, and two men standing at the front of the vehicles, apparently talking. There was exploration in the course of the trial about whether these could have been Mr Dee's truck and Mr Bell's truck. He was shown photographs of the caravan Mr Dee said he was towing that day. The following evidence was then given: "Q [A]re you able to comment on whether that does or does not appear to be the trailer that you have described as being attached to the rear of one of the trucks? A. I remember – and it being a long time ago – a silver and – I would say no. Q. All right. And in terms of this trailer that you remember was it a trailer height wise that went up to the height of approximately the cabin of the truck or was it something that was only approximately half the height, or-- A. The caravan for the – the trailer going up as high as the back of the truck. Q. That's your recollection? A. Yeah, yeah, they were about level, yeah." T49.8-21 19 He was also shown a photograph Exhibit J of the semitrailer Mr Bell had parked at the top of the hill just after the accident but he said he did not remember seeing a truck like that. 20 Senior Constable Milton had travelled on the same stretch of road on 26 April 2009 and had noticed that the point of impact could be observed from Stoney Creek Bridge from the perspective of someone travelling south in a car. 21 It was not submitted to me that I should not accept Senior Constable Milton as a witness of truth and accuracy, and I do so. Evidence of Mr Hodkinson 22 Mr Hodkinson lived on a farm near Bega. On this day he was driving south, on his way to Eden. He was in a line of vehicles which included vehicles ahead of him which he said were connected with "the show circuit". The line ahead of him included several trucks. Some of the vehicles ahead of him were cars. As Mr Hodkinson approached the overtaking lane to the south of Stoney Creek Bridge, he saw two cars collide head on. He was momentarily puzzled. Then, seconds later, as he got closer, he observed that a truck towing a caravan appeared to be sprawled across both southbound lanes, with the caravan mainly in the slow lane and the truck mainly in the fast lane. Earlier, this truck and caravan had been in the convoy three vehicles in front of him. When he saw them after the accident, the vehicles were either stopped, or moving at a slow speed. They were slightly past the point in the road where the impact had occurred. 23 He described the truck as of less than five tonnes, whitish in colour, with a vertical exhaust on the left hand side, and a greyish, canvas type canopy rather than a metal structure on the back, roughly level with the top of the cabin. It was not a pantechnicon. The caravan, he said, was whitish in colour, with one wide red/orange stripe along both sides, seven to eight metres in length, with four wheels and dual axle. It was similar to the old Department of Main Roads caravans – an older style. He did not recall its having any rear windows. Its height was about the same as that of the truck. It was not a tall caravan. He was shown photographs of the caravan Mr Dee said he was towing that day. But the caravan Mr Hodkinson saw was a different style. Though its colour was similar, he thought Mr Dee's looked purpose built. He said the one he saw was "more a production type caravan. A much more common sort of van". The truck towing the caravan he saw was not like Mr Dee's truck. 24 Mr Hodkinson agreed with Mr Seton that his evidence about the truck and caravan came mostly from his observations while travelling behind them, and at a considerable distance. He agreed that at the first trial he had said he could not dispute that Mrs Broughton had passed the truck and caravan without incident, and that having done that, she was faced with another truck and caravan pulling into the overtaking lane, causing her to take evasive action. He agreed he had said at the first trial when asked if the description of the caravan and truck he had given had possibly not been of the truck and caravan he had seen travelling three vehicles in front of him, and that there had been another truck and caravan which had caused Mrs Broughton to take evasive action. He had answered, "Look I just don't know". That, he said to me, had been a truthful answer. However in re-examination he gave this evidence: "Q. When you saw the truck and caravan combination, very shortly after you observed the impact between the two cars, was that the same truck and caravan that had been travelling two cars in front of you as you had been travelling in the convoy before you got to Stoney Creek Bridge? A. Yes, to my recollection." T86 25 He stopped his car briefly, before the point of impact. He estimated that between eight to ten other people had also stopped. One, a man, told him he knew first aid, and that the man in the white Datsun should have his head tilted back. Then he observed that the man's head had been tilted back. He did not see who had done that. He found his experience stressful. Credit Of Mr Hodkinson 26 I formed the view that Mr Hodkinson was a careful and attentive witness. He readily made concessions, such as that his memory for relevant events would have been better at the first trial, and that he had refreshed his memory for this trial by reading the evidence he had given at the first. I formed the view he was honest, and doing his best to be accurate. Evidence Of Mr Lear 27 Mr Lear was travelling south with his eleven year old daughter. He found himself caught behind slow moving traffic. He recognized it as traffic associated with the then, soon to commence, Bega show. In front of him was a prime mover with a carnival ride on the back of it, followed by a truck and caravan, then a Toyota Land Cruiser, and finally a green Commodore. The vehicle slowing all the traffic down, he said, was the prime mover, which, he thought resembled the truck in Exhibit J. (Mr Bell's truck.) When he observed that, it was the focus of his attention, and he was unconcerned with what was further up the road, although he saw no other vehicles travelling immediately in front of it. The truck behind that, he described as like a "pantech …[of a similar size and length to a pantech] … and it was towing a white creamy caravan … fairly long … dual axle." The truck towing that caravan, he said, had a metal box on the back. The cabin was creamy white in colour. He did not recall a vertical exhaust. As to the caravan, it did not appear to have any rear windows. There was some writing on the back but he could not recall what it said. In cross examination he agreed he had later told Detective Senior Constable Fowler that the writing had been about 20 cm high and had said something like 'majesty' or 'majestic'. He said the caravan had small turning indicator assemblies with tail lights combined in the assemblies, rectangular in shape ("smaller than the size of a tissue box") and a small, black and white, number plate. 28 After the vehicles in front of him had crossed Stoney Creek Bridge, they began to accelerate. At the point where the southbound lane became two, the Land Cruiser took the fast lane. Then the Commodore sped up. There was a gap of 50 to 100 metres between the Land Cruiser and the Commodore as the two vehicles went up the hill. The Land Cruiser disappeared from sight. As the Commodore went into the overtaking lane, he saw the right hand indicator on the caravan flashing. Then the truck and caravan pulled out into the overtaking lane in front of the Commodore. They blocked the Commodore's path. The Commodore veered onto the opposite side of the road and collided with an oncoming car. Then the truck pulling the caravan accelerated past the prime mover and disappeared from his view. 29 He drove for a short distance past the point of impact, found a place to park, and stopped for a few minutes to render assistance. Then he drove off again. When he reached the top of the hill he "noticed the prime mover and the truck and caravan parked on the side of the road." They were side by side, the prime mover being the vehicle closer to the road. He saw two men standing at the front of the prime mover. He stopped his car and wrote down the registration number of the caravan parked there. He later provided the number to police. To me he said the truck towing the caravan had been "very similar" to Mr Dee's. He told me the number plate from which he took the number had been old – black, on a white background, and with no state identification. He could not recall the number, but it had begun with an "0". He could not recall whether the caravan had had an orange or red stripe down its side. T102 He was shown photographs of the caravan Mr Dee later told me he had been towing. He said that was not the caravan whose number he had written down. He could not recall its having two windows, and its indicators and tail light assemblies were much larger that on the one he had seen. Further, it did not have the "box" at the back. T100 Nor did it have three axles. The number plate seemed lower, and he could not recall the lights at the top. He could not recall the words: "Caution Long Load" on the rear. On the question of the identification of the truck and caravan and whether he had made an error of identification, in cross examination by Mr Maconachie he gave this evidence: "Q. Because you had only seen one semitrailer and one caravan, you assumed, did you not, that they were the vehicles that you had seen further down the hill?? A. I was fairly certain that they were the caravan and truck involved in the accident because they were similar and looked the same as the ones that were going up the hill. Q. But I am putting it to you that when you saw the semitrailer you recognised that as being the semitrailer involved in the accident in the sense of being present at the time of the accident. Is that correct? A. Yes. Q. You saw a caravan and truck combination largely obscured by the trailer of the semitrailer and made the assumption that that was the caravan and truck combination that you had seen earlier. Will you agree with that proposition? A. It was because the rear of the caravan I could see looked the same as the rear of the caravan that was going up the hill." T112 (It was put in closing addresses by Mr Seton that Mr Maconachie had never put to Mr Lear that he had been wrong in identifying the caravan at the top of the hill as the one being towed by the offending vehicle. But I am satisfied Mr Maconachie's cross-examination, though it did not include a direct suggestion he had been wrong, did squarely raise the correctness of his identification evidence. Further, Mr Seton did not submit that by reason of Maconachie's not having put squarely to Mr Lear he had made an error of identification, that it would not be open to me to find he had made such an error. Indeed, I took him, ultimately, to concede such a finding was open to me. Although he urged me not to make it.) 30 Another eye witness, Ms Grey, who said she had been a passenger in Mr Davis' truck and that Mr Davis had been the driver of the offending vehicle, said that shortly before the accident Mr Davis had been engaging in a somewhat foolish manoeuvre, involving his driving a little onto the other side of the road as if to pass, then pulling back to where he had started from. However Mr Lear recalled nothing of any vehicle in front of him engaging in such a manoeuvre. He said however that from time to time, on the road leading up to Stoney Creek Bridge, vehicles in front of him would be lost from his view. Further, from his experience, someone hauling a caravan may perform such a manoeuvre to look up ahead. T348.45 31 Mr Lear was cross-examined extensively about the circumstances in which he had recorded the caravan's number. He agreed that if at the time he observed the caravan at the top of the hill its number had been F34209, then he had not observed it accurately. Credit of Mr Lear 32 Mr Lear impressed me as a man who took care. He made appropriate concessions, such as that mistakes of observation are made with the best will in the world, and trying as hard as one can. I conclude that Mr Lear was honest, and did his best to be accurate, but I shall return later to the issue of whether his recollection was in fact accurate. Evidence of April Lear 33 Mr Lear's daughter, April, gave evidence at the first trial. She was not called at the second. By consent of all parties, a transcript of her evidence was tendered. Exhibit N I was told when the transcript was tendered that no submissions would be made by any party about her veracity, although submissions would be made about her accuracy. To the limited extent that submissions were made about April Lear, they did only deal with her accuracy. 34 She was eleven at the time of the accident, and had been travelling in the front of Mr Lear's car. At the point where the overtaking lane commenced, she saw cars moving into the overtaking lane. Then she saw a caravan being towed by a truck, with its right hand indicator on. It was behind a large truck. As it was being overtaken by the car in front of her, the caravan began to move into the overtaking lane, causing the car to swerve to the opposite side of the road and hit an oncoming car. She and her father then stopped to help the victims. After a short time they continued on. As they got a bit further along she saw a caravan on the left side of the road. It looked the same to her as the one she saw "going to overtake the truck." Her father did not stop, but he slowed down, remaining on the bitumen roadway. Her father asked her to write down its number. She did so, checking with him that she had recorded it properly. She was shown a photograph of the caravan Mr Dee said he was towing, but she said it did not look the same as the one on the side of the road. She referred to the 'box' on the back, and the rear windows, in that context. But she did not explain further. The caravan's colour had been a bright one, she said, yellow or white. She said of its size: "It wasn't a really short caravan, it probably was one of the normal ones". She could not recall the colour of the number plate. In cross-examination she maintained she was 'certain' the caravan on the top of the hill was the one involved in the accident. She agreed that she had later discussed what had happened, with her father. She also agreed that most of the things she had been asked about she was not sure about. 35 I shall return later to consider the question of her accuracy. Evidence of Stacey Grey 36 Ms Stacey Grey was, at the time of the collision, in a relationship with Mr Davis. She said they had been together since she was fifteen. They travelled around together, going from show to show. He had several games he carried on the truck. She helped him with his business. At the time of the accident they lived in a 27 foot caravan. It had stripes along both sides, with windows on both sides but not at the back. Mr Davis had a truck which was used to tow the caravan. He had no driving licence, but invariably drove the truck, including on the highway. According to her, on the day of the accident, they were either heading towards Bega or leaving Bega: she could not recall which. His sixteen year old employee, Brian, was in the truck with them, in the seat next to the passenger door. She knew Mr Bell. There came a point when they were travelling behind Mr Bell's truck, with Mr Bell driving. It was then Mr Davis engaged in the foolish manoeuvre I have referred to earlier, when he acted as though he was about to pass by pulling out a little on the opposite side of the road, then pulling back in behind him. As she put it: "He was mucking around laughing like he was going to overtake, yes I am, no I'm not, yes I am, no I'm not." As she said that, she moved her right hand backwards and forwards from left to right. At the time of that manoeuvre she saw a car behind them. It was a blue or grey Commodore, an older model. 37 Then there came a time when Mr Davis pulled out to pass Mr Bell's truck as they were going up a hill: "[T]he car behind us must have pulled out to overtake or look…to see if they could overtake and Dean's quickly pulled back in and the collision occurred right beside the driver's side window." T128 She said Mr Davis did not use his indicator. She did not see a collision. But she heard a very loud noise. She and Mr Davis kept going up the hill. She asked him to stop so that she could see if anyone had been hurt. But he said: "No I can't love. I'm on my Ls. The coppers will be down there." T129.16 After travelling ten to fifteen kilometres they did eventually stop. While they were stopped he spent some time on his mobile telephone. She did not hear what he was saying. Then they changed course and drove to Canberra and stayed at the Canberra showground for several days, although there was no show on there at the time. They did not go to Sydney, although that is what Mr Davis said they did on 11th February. 38 Ms Grey did not give evidence at the first trial. Mr Seton made a vigorous attack on her credit. By the time of this trial she and Mr Davis had been apart for some years. Each had formed new relationships. She had had three children, including Jordan, her eldest, of whom Mr Davis was the father. Early in 2008 her youngest child died. Soon after, Mr Davis took proceedings to obtain custody of Jordan. She did not contest the application. An order for joint custody was made, with day to day care of Jordan resting with Mr Davis. He has had day to day care ever since. In the course of the custody proceedings Mr Davis and his de facto partner made some significant allegations against Ms Grey. There was also a period late last year when Ms Grey was only permitted access to Jordan if supervised. Mr Davis' application for custody was served on Ms Grey at about the time she first gave a statement to insurers implicating Mr Davis in this case. Mr Seton put to her that she hated Mr Davis, having lost custody of her child to him, and had been motivated by revenge to give false evidence against him in this case, so he would be prosecuted for a serious offence, and be imprisoned, so she would thereby regain custody. She rejected those propositions. She did concede however that she had recently said to him: "You're fucked… and this is all going to come back on you and you're going to end up in gaol." T281.40 Ms Grey's Credit 39 Ms Grey's part in this case was highly significant. For reasons which appear below, the other witness who said Mr Davis was at the scene, Mr Bell, is a man whose credit was so impaired, I am reluctant to accept anything he told me for which there is no corroboration. And if I were to accept Mr Seton's submissions about Ms Grey, that would involve my finding that she came to court and gave evidence about matters she did not witness, making her a perjurer, and someone who was attempting to pervert the course of justice. 40 In deciding what credit to give Ms Grey's evidence, I accept Mr Seton's submission that there were many unsatisfactory aspects of it. There were certainly matters which gave me pause: (a) I have referred to her relationship with Mr Davis, her loss of day to day custody of their son and her providing a statement about his alleged part in this matter for the first time, at about the same time as documents were served on her for the purpose of a custody application by Mr Davis; (b) There is her admission set out at the end of paragraph 38. I infer if he were found guilty of an offence arising from the collision, he may receive a sentence of imprisonment, and that that was her opinion when she made that statement; (c) While giving her evidence, Ms Grey was not good at recalling peripheral matters about the accident. For example: she said she did not know which direction they had been travelling in at the time ; she did not recall leaving a showground before the accident; she did not recall whether at the time of the accident they had been on their way to or from Bega, or whether they had recently been to Nowra; despite her evidence in [36]-[37] above, in the course of cross-examination she said she had no idea what had caused the accident T215.36 or whether there had been one T221.47 ; she said she did not recall an overtaking lane at the scene where she heard the crash, saying she was "95% sure" the accident had not occurred in an overtaking lane T150.48 ; she told me she did not see the other vehicle (i.e. the oncoming vehicle) before the accident. Yet, as Mr Seton noted, some things she seemed to recall well. For example, she said Mr Davis had not been using his mobile phone at the time of the accident. T144.46 This was the evidence: "Q. And as he was driving along on this day of the accident, was he using the mobile phone? A. Yes. T144.35 Q. And did you see him using the mobile phone while the truck was proceeding down the highway? A. No. T144.39 Q. But was he using the mobile phone as he was driving along? A. To my recollection he was on the phone when we pulled over. He could have been but I, too, I was in shock myself directly after the accident, so I couldn't be positive. T144.44 Q. Well I'm actually interested in the circumstances before the accident. Do you recall whether or not Dean was on the mobile phone before the accident? A. No, he wasn't." T144.49 That, as Mr Seton pointed out, seemed an odd thing to recall, given all the things she could not recall. She was also adamant in an assertion that he had not had his indicator light on when passing Mr Bell. That is also an odd thing to recall, considering the things she did not recall. (d) Although Mr Seton asked Mr Lear, Mrs Broughton, Mr Dee and Mr Bell, none recalled any conduct of the kind Ms Grey said Mr Davis had engaged in when pretending to pass Mr Bell, then moving back behind him. (e) There were troubling aspects of her evidence about how well she could see Mr Bell while Mr Davis was playing the overtaking game. For example, she said she could see that Mr Bell was getting agitated, and had his head out of the vehicle window to see what Mr Davis was doing T149.16 ; this, she then corrected, to say, "Well, turning around, looking to see what he [Mr Davis] was doing." T149.20 She said at one stage she could see him shaking his head in apparent dismay. T210.33;212.23 She said Mr Davis had engaged in the manoeuvre fifteen or twenty times for ten to fifteen minutes. T150.21 (f) (i) She gave, at times, unresponsive answers, in such a way as to take the opportunity to be critical of Mr Davis. For example, she said (unresponsively) she knew he had given at least three different stories. T115.19 As Mr Seton put to me, there was no evidence before me he had given three different stories. When asked whether she had been living with him in 2002, instead of saying 'yes' or 'no', she said she would "be stuck with Dean for a week before I could get out of the caravan. I had black eyes every week." T218.30 (ii) Mr Seton submitted Ms Grey could be mischievous and not easily intimidated. As an illustration he relied on the following exchange in cross-examination: "Q. This vehicle that you say you saw the glimpse of, you said you thought it was a Commodore, but you agreed, I think, on the first day you gave evidence that you couldn't be positive about it, it might have been another kind of car. Is that right? A. That's right. Are you having fun? Q. Beg pardon? A. Are you having fun?" T292.35-38 (iii) Mr Seton submitted her apparent characteristics of mischievousness and lack of a sense of intimidation, threw doubt on any suggestions she was or may have been intimidated by Mr Davis in the past, accounting for why she had made no earlier statement to investigators or police about Mr Davis' involvement in the collision. (iv) Mr Seton referred me in further support of that submission, to evidence showing that on one occasion in the past she had been convicted of disobeying an apprehended violence order. (v) However, while I accept Ms Grey could not be described as a shrinking violet, I am perfectly satisfied she could have been intimidated by Mr Davis. She began her relationship with him when she was only fifteen. At the time of the accident she was aged nineteen. While they were together, as he conceded, he was physically violent to her. He has a number of convictions for violence on others. I shall say more about him later, but having seen him give evidence over an extensive period, I can readily imagine someone living with him finding him extremely intimidating. (g) (i) Mr Seton drew my attention to Ms Grey's evidence that after the accident she had seen Mr Bell's vehicle stop. T220.5 That, he put to me, was something I would find difficult to accept occurred, if Mr Davis passed his truck when the accident occurred and kept going, not stopping for ten to fifteen kilometres. The inference was that someone else must have told her that Mr Bell had stopped his truck on the top of the hill. Ms Grey did tell me she had spoken to Mr Bell's brother, Elwin Bell Junior, some years ago, when he told her: "Dean was trying to blame it on Owen." T137.34 She said this contact came about when she rang him after receiving an anonymous call asking her about the accident. She said she asked Mr Elwin Bell Junior if Mr Dee "had had to go to court or something." T180 I infer it would have been possible for her to have received information from at least that source, sufficient to enable her to come to court to give false evidence. Further, she followed the show circuit around for some months after the accident, too, so may have had opportunities to discuss the accident with other Bell family members; (ii) Mr Bell's evidence to me (supported by others, such as Mr Lear and his daughter) was that his truck was parked on the side of the road some 500 to 1000 metres to the south of the accident site. So I agree with Mr Seton that it is hard to see how, if Mr Davis had kept going after the accident, he could have passed the truck so far ahead. (iii) Ms Grey's evidence on the issue T219-220 was this: "Q. After Dean's truck pulled back in behind Owen's semitrailer and you then heard the impact you say, do you, that your truck travelled on for some distance and then pulled up by the side of the road? A. Yes. Q. How far approximately do you say that Dean drove on before he pulled over? A. I think he drove for about another 10 to 15 minutes before he pulled over. Q. When you pulled over was Owen Bell still in front of you? A. No. Q. What happened to Owen Bell, or his truck, do you remember? A. We passed him. He was parked on the side of the road. Q. So you, as you sit there now you can recall, can you, passing Owen Bell's truck parked by the side of the road after the accident? A. Yes. Q. So I take it therefore that after the impact your truck, Dean's truck, continued to travel behind the semitrailer, did it, until the semitrailer had pulled over and parked so that you could see the semitrailer having parked as you passed it? A. Immediately after the accident? Q. It doesn't matter when but the semitrailer and Dean's truck continued along the road after the accident, is that right? A. Dean continued, immediately after the accident, immediately after I heard the noise Owen pulled over. Q. And you saw him stop? A. Yes. Q. And you're able to say that because you recall Dean's truck passing the semitrailer stopped by the side of the road, is that your evidence? A. Yes, I can - passing Owen, yes. Q. You remember passing Owen's truck which was stopped by the side of the road, is that correct? A. I can remember passing Owen, yes, I'm pretty sure it was his truck or could've been his Dad's or one of his brothers or something, yes. Q. As you passed that truck, whether it was Owen's or Owen's father's truck it was stopped on the side of the road, is that correct? A. Yes." (iv) Although he did not say so, it is possible Mr Bell, immediately after the accident, stopped briefly, or at least drove so slowly that he may have appeared to have stopped. He was driving a semitrailer which had the effect of slowing down other traffic. It is to be recalled that when Mr Hodkinson saw the offending vehicle at the scene of the collision, he thought it might have stopped, although on no account by any other witness was it, in fact, stopped. So an error of that kind by Ms Grey would not necessarily be surprising, especially given the event I conclude must have been a shock for her if she was there. But as the above exchange shows, in the end Ms Grey was not even sure it was Mr Bell's truck she had seen ( "Could've been his Dad's or one of his brothers or something, yes." ) There is another possibility, viz that the vehicle she saw parked and remembered passing was Mr Dee's. That was owned by Mr Owen Bell's father, Mr E Bell ("Could've been his Dad's"). That is consistent with evidence of Mr Dee and Mr Bell that Mr Dee was well ahead of Mr Bell, and of evidence of Mr Dee that he had reached the top of the hill for at least a minute before Mr Bell reached him. It is also consistent with evidence I shall come to later, that of Mr Dee, that when he was waiting at the top of the hill he heard, then saw, a truck pulling a caravan, fly past him, heading south. Ms Grey did however say later she did not see Mr Dee T152.1 , but that is not inconsistent with her seeing his truck and identifying it as Mr Bell's or Mr Bell's father's. It is of course to be noted however that she agreed the truck passed had been a semitrailer, whereas Mr Dee's truck was not a semitrailer. I conclude that if she was there, honest error may have accounted for Ms Grey's evidence about passing Mr Bell. 41 Mr Seton put to me other discrepancies and apparent contradictions in her evidence: (a) She said an investigator had told her 'approximately the year' and 'about that time of year' of the accident T179.26 , whereas she later said it had been 'youse' (meaning Mr Stitt) who had told her the date of the accident. However I do not see the two as inconsistent, given the early references seem not to have been specific. (b) She told me she had last discussed the accident with Mr Davis 'last week', i.e., the week before the trial began T136.37 , whereas on the following day, she conceded she had spoken to him on the first day of the trial. However she told me the conversation on the first day of the trial had not been about the trial, but had been an attempt to talk to her son on the telephone. I do not see that as contradictory. (c) Although she claimed things had 'got better' with Mr Davis after May 2003, when they separated, she asked police to help her by taking out an AVO. However it is not unusual for parents to have an improved relationship after separation, yet for there to be inflammatory episodes, such as when one of them acquires a new partner. Events such as these can lead to heated exchanges between parents, leading to applications for apprehended violence orders. So I do not see the apparent contradiction as carrying great weight. (d) Mr Seton queried why neither Senior Constable Milton, nor Mr Lear had seen Mr Davis' truck parked by the side of the road. But Ms Grey said they did not stop for ten to fifteen kilometres. There was no reason for Senior Constable Milton to have noticed the truck as he sped towards the accident site. Since the turn off to the Monaro Highway is just after the accident site and Ms Grey said that at one point they turned off, and Ms Grey was not specific about roads, it is possible Mr Davis, if Ms Grey was telling the truth, had turned off onto that road. Thus Mr Lear would not have passed him. Even if Mr Davis did not take that road, other roads in the area are connected with the Monaro Highway. Mr Davis may have turned off onto one of those. (e) When Ms Grey was shown a photograph of Mr Bell's semitrailer she agreed it showed the trailer part of his vehicle but denied the ride shown in the photograph was the ride he carried on the day of the accident. Mr Bell said that was the ride he carried that day. As will appear, I have difficulty with Mr Bell's credibility. Mr Seton said one of them must be lying on this issue. But I think it conceivable Ms Grey was in error. It is a long time since the relevant events. 42 Mr Seton drew my attention to other matters which did not reflect well on her. For example, she admitted to having used illicit drugs. Further, she had been convicted of failing to abide by an apprehended violence order. 43 I have considered carefully the extensive and helpful submissions Mr Seton made about Ms Grey's credit. My overall impression of Ms Grey however was that she was a compelling and truthful witness. She made concessions readily, such as that she might not have been observant about the stripes on the sides of Mr Davis' caravan. She conceded to Mr Seton that the caravan might have had two tyres on the back, although her best recollection was that there had been none – just a bar. When apparently unsure of something, she would ask for a question to be repeated. It is to be recalled too that until interviewed by an investigator in early 2008 she had never been interviewed about the accident. By then seven years had gone by. It would not be surprising if her evidence contained some apparent contradictions or lacked precision. 44 Although it is true that her statement to an investigator implicating Mr Davis was given at about the time she was first involved in custody proceedings with Mr Davis, there is no evidence any investigator had ever previously visited her to get a statement. The evidence is that the police never spoke to her about the accident. That is not to say people have not tried to speak to her over the years. She said she had received a number of phone calls from people wanting to talk to her about the accident. But this appears to have been the first time anyone ever took the trouble to visit her to request a statement. Further, she told me this was the first time she learned people had been seriously injured: "When the private investigator first came round, I gathered that people must have been injured for it to be still going on and coming to me." T288.34 There is no evidence she actually came forward to speak to police or insurance investigators about Mr Davis' involvement, or that she initiated the interview with the investigator. 45 From evidence given by Mr Fowler, to which I shall refer in more detail later, it appears that having spoken to Mr Davis in 2002 in Canberra, police decided not to pursue him, and were satisfied with the alibi he gave them. That, I infer, would explain why they did not speak to Ms Grey. The visit from the investigator in May 2008, which co-incided with the custody issue, also occurred within days after the Court of Appeal had ordered a new trial. It is not surprising the Court of Appeal's order prompted the insurer for the Dee/Bell interests to make renewed (or perhaps new) efforts to find and speak to her. There was evidence that insurer's solicitors instructed loss assessors to go to see her at that time. There was no evidence they or any others had been to see her or had sent others to see her before the first trial. 46 On the important issue of the motive to lie, it is to be recalled that when the custody proceedings began, Ms Grey had recently lost a child. She was asked in cross-examination: "And you must have been very, very disappointed when you learnt that [Mr Davis] was applying for custody of Jordan?" She replied: "No, I wasn't because everything that he said was based on lies and there was plenty that I could've thrown back at him. I was just mourning for about six months so I just, yeah." T239.46-48 She said further: "I haven't made an effort to get Jordan back in the last 12 months considering what's been going on in my house and my life." T290.31 Ms Grey told me, and I accept, that until that time Mr Davis had shown little interest in his son, and a positive side of his custody application was that it showed her he was interested in him. She did concede that his application had shaken and upset her and that she still wanted Jordan to live with her. 47 I formed the distinct impression from observing Ms Grey give her evidence over several days, that she did not wish to be involved in giving evidence. At one stage she said, "I wish I wasn't even here." Although that was an answer in cross-examination, that was my impression of her from the time she first began giving evidence. 48 It is of course not at all uncommon for men and women to do terrible things to people they purport to love, but when Mr Seton put to Ms Grey that she had been driven by enmity to give evidence against Mr Davis she said, "I still love the bloke…I feel sorry for the life he's had…We have a child together. I could never be back with the man, but I still love him to a certain extent, yes." T287.12 That, to me, had the ring of truth. 49 I was troubled by occasions when in cross-examination she said she was not convinced Mr Davis had in fact caused the accident. For example she said: "After thinking about it, I don't think he actually caused the accident; if he wasn't there and on the road it wouldn't have happened; but after thinking about it, the car behind us was being impatient and shouldn't have pulled out either, at the same time." T291.44 However, when contemplating the significance of what she had told the investigator, and then what she told me, it would not be surprising, given her previous closeness to Mr Davis, if she had such thoughts. 50 Although these things can be feigned, there were moments in her evidence when what she said and the way she said it had all the appearance of spontaneity and truth. For example, when she was cross-examined to the effect she had first heard of the accident in February 2002 she said: "No, that was not what I – I thought an accident had occurred when Dean— Q. When it happened? A. Yes, I wasn't positive but from the noise, yes, an accident did occur, yes." T219.22 There was also this evidence: "I was pretty much in shock really. I didn't know what – yeah, I just couldn't get that noise out of my head." T222 Those statements, to me had the ring of truth. 51 It is true no-one other than Ms Grey gave any evidence about Mr Davis' engaging in the overtaking game. But it is possible that from the perspective of a passenger in the vehicle, the manoeuvre may have been far more obvious, especially if (as Ms Grey said occurred) accompanied by sound effects such as loud laughter from Mr Davis. That may be, too, I infer, why she said it would have been obvious to trucks behind when it may not in fact have been obvious. Further, it may have been that from the perspective of other drivers, the manoeuvre would have been seen as no more than an attempt to see what vehicles were coming from the opposite direction. For example, Mrs Broughton acknowledged she would not have recalled such an unremarkable manoeuvre. (This evidence came up after Mr Hodkinson and Mr Lear had given their evidence. Mr Lear was recalled for further cross-examination on that issue after it arose. Mr Hodkinson was not recalled. But it was not submitted the failure to recall him had any significance.) Evidence Of Christine Broughton 52 On 10 and 11 February 2001 Mrs Broughton, with her children, stayed with friends in Narooma. On the afternoon of 11 February she and her children left Narooma to return to their home in Merimbula. She was driving a dark green Commodore, registered number WMD 973. She came up to a group of vehicles consisting of sideshow trucks. At a point near Bega, her side of the road became two, with an overtaking lane on the outside. (I infer this was on the Bega side of Stoney Creek Bridge.) She had not been paying close attention to the vehicles in the convoy in front of her. She overtook a semitrailer, then had to pass a small truck towing a caravan. A semi was in front of the small truck. (At the first trial she had said the vehicle combination she had overtaken had been a truck towing a caravan.) She said that once across Stoney Creek Bridge she found there were three trucks towing caravans. She passed one of those combinations, but it was the next, or second, combination, which pulled out in front of her. Asked whether she had seen it before Stoney Creek Bridge she said: "Not that I took any notice of, no." T258.2 53 She moved into the overtaking lane and drove up the hill, following another car. As she did so she saw "a small truck towing a caravan" T263 come across from her left. The manoeuvre forced her onto the other side of the road, where her car collided with Mr Veigel's car. She did not see indicators on on the caravan. She recalled that the caravan did not have a rear window. But she recalled it had a bar across the back. She recalled nothing written on the back. She recalled that the caravan had been all white. She saw no stripes on the side. She recalled no windows on the side. Shown exhibit 'L', (Mr Dee's caravan), she said that it did not resemble the caravan. Nor did the truck in Exhibit 'K' (Mr Dee's truck) resemble the truck towing the caravan. 54 Mrs Broughton's statement to police became an exhibit, as did transcripts of part of the evidence she gave at the first trial. There was general consistency between her evidence at both trials and in her statement. In her statement she spoke of having seen "a lot of trucks towing caravans [at Cobargo]. They looked like trucks and caravans that you see at shows and carnivals." Further, according to her statement, at one stage after leaving Cobargo and before the accident scene there were, ahead of her, in her estimate, about five trucks towing caravans. 55 Mrs Broughton was in court when Ms Grey gave her evidence. She recalled seeing no manoeuvre by any truck and caravan combination of the type Ms Grey said Mr Davis had engaged in: "I can't recall prior seeing it pulling in and out mainly concentrating on the blue Ford that was in front of me because we kept on slowing down, speeding up, slowing down, so I was watching it, concentrating on it." T272.5 But in any event, she conceded, in her experience as a driver she had noticed when in a slow line of traffic that vehicles do pull out to a point where the driver can see past a slow vehicle to see whether it is safe to pass and she would not have taken any interest had that manoeuvre occurred that day, and she would not have remembered it eight years later. Mrs Broughton's Credit 56 It is to be recalled that Mrs Broughton was injured, as were her children, in an accident which occurred over eight years ago. As the Court of Appeal found over a year ago, she was not in any way responsible for the accident. Mrs Broughton has not received any compensation. This dispute was essentially between two insurance companies and an entity financed in large part by insurers. So she could not be blamed if (as she appeared to be, at times) a little impatient with the litigation system. However, I had the clear impression she gave her evidence carefully and honestly. She conceded her recollection at the first trial would have been better than it was before me. There were some variations between the three versions of the accident she had given. That, I thought, was entirely consistent with the passing of so much time since the accident and the number of times she has had to tell the story about what, I consider, must have been a most frightening event for her, given especially that her children were with her in her car and she had been forced into the path of an oncoming car. Evidence of Jamie Gary Dee 57 Mr Dee used to work for the Bell family. At the time of trial he had not worked with them for six or seven years. In 2001 he was working for them. (I was told he attended court in response to a subpoena.) He was at the Nowra Show in February 2001. He left the showground to go to Bega, driving Mr Owen Bell's truck, and towing his caravan. On the way, he stopped to check the tyres on his vehicles. So did Mr Bell, who was travelling in a semi trailer behind him. 58 Mr Dee gave evidence that he recognized the vehicle in Exhibit 'J' as the one, with the same load, that Mr Bell drove that day, and said the truck and caravan in Exhibit 'K' were the truck and caravan he drove that day. Both were in the condition in those photographs in which they were on the day of the accident. The equipment shown on the back of the truck in Exhibit 'K' was the equipment he was carrying that day. As at the day of the accident he had driven that truck and towed that caravan for between four and five years. He did not recall any relevant registration numbers. 59 He recalled the accident in February 2001. At the time, Mr Bell had been travelling behind him. Mr Dee drove over Stoney Creek Bridge and then up a hill. At that time he had no visual contact with Mr Bell. Then Mr Bell called him on the CB radio and said, "I think my car's been in an accident." Mr Dee pulled up on the left hand side, at the top of the hill. After a while, Mr Bell arrived and stopped, got out, and spoke to him. They and Mr Bell's then girlfriend then ran down the hill to the accident scene. When there, Mr Dee climbed into an injured man's car and talked to him. (This, I infer, was Mr Veigel.) Later, VRA personnel arrived. Fifteen minutes or so after that, they left, returned to their vehicles, and drove to the Bega showground, where he stayed and worked for five days while the Bega show was on. 60 As Mr Dee sat in his truck at the top of the hill waiting for Mr Bell to arrive, he saw a small white truck towing a caravan drive past him in a southerly direction. He heard it first. Then he saw it. Its speed was eighty to ninety kilometres per hour, or perhaps a little slower. Though he knew Mr Davis and his girlfriend, and the fact that they lived in a caravan, and had a truck, he was unable to say whether the truck and caravan were Mr Davis'. 61 Mr Dee maintained that he always travelled ahead of Mr Bell between half a kilometre and a kilometre distant, though usually they had visual contact. Sometimes he would stop to let Mr Bell catch up. 62 When stopping at the top of the hill he pulled over to the left to ensure Mr Bell could park his semi alongside his vehicle. He could not recall if he and Mr Bell had stood together talking in front of the trucks before going down the hill. Nor could he recall a police car coming from the south at any such time. 63 Mr Dee denied when it was suggested to him that Mr Bell had suggested he, Mr Dee, had caused the accident. Mr Dee did not recall any car stopping at the rear of the semi, or seeing people appearing to write something, while there. He recalled no vehicles passing him in the overtaking lane on his way up the hill. He denied having any knowledge before returning to the accident scene, that someone had written down the registration number of the caravan. 64 Mr Seton contended that Mr Dee had been the driver of the offending vehicle. Mr Dee's credit was the subject of an understandably intensive attack. In the course of the attack (in which Mr Seton was not the only attacker) a matter explored was whether after the accident Mr Dee had taken away the caravan and put its number plate on a different caravan. Given the evidence of Mr Lear and his daughter, and the evidence from most eye witnesses that the caravan in Exhibit K was not the one towed by the offending driver, such an exploration was understandable. It is important to set out in detail some of Mr Dee's evidence on that issue: ( Cross-examination by Mr Seton T373-380 ) "Q. Was it the case that on that day you were towing a caravan that had a black and white number plate affixed to it? A. It would have had a Victorian registration plate, yes. Q. Was the number plate black and white? A. Yes, I think it was. Q. Was the number plate something that you didn't pay close attention to? A. Yes, I never really took much attention to [of?] the number plate. Q. The caravan that you say you were pulling, did it have any windows? A. Yes. Q. Where were the windows? A. Sort of along the side, the back. Q. How many were there along the side? A. I couldn't possibly tell you. It had windows along both sides of the caravan. Q. At the front, any windows? A. No, it had windows at the back of the caravan. Q. How many windows at the back? A. Two or three. Q. How were they, were they just alongside of each other or-- A. They were sort of one there and one there. Q. Indicating one above the other? A. Yes. Q. What colour was it? A. White. Q. Did it have any stripes? A. No. Q. Approximately how long was it? A. Maybe 25 foot. Q. Was it the case that the caravan you were pulling that day in fact had no windows at the rear? A. No, it had windows. Q. Are you sure about that? A. Yes. Q. Was it the case that the caravan that you were pulling had some writing on the back? A. Yes. Q. Did the writing start with an "M"? A. I don't think so, I can't remember. Q. It had a word like "majesty" or "majestic" on the back? A. No. Q. Well six months later after this accident, you were up at Mt Isa, weren't you? A. Yes. Q. You were spoken to by the police, weren't you? A. Yes. Q. About this accident, yes? A. Yes. Q. That was the first time you had been spoken to by the police about this accident, wasn't it? A. Yes. Q. You understood, didn't you, that they were investigating who was responsible for this accident? A. Yes. Q. It was your understanding, wasn't it, that there had been a very serious injury or injuries suffered by the occupants of the car? A. Yes. Q. In short, it had been a serious accident, hadn't it? A. Yes. Q. I suppose you were keen to assist the police as best you could, is that right? A. Yes. Q. With any information you could provide them so as to ascertain who was responsible for the accident? A. Yes. Q. When you were interviewed, you were asked, weren't you, for a description of the caravan that you say you were towing? A. Yes. Q. You were asked by the police if you[r?] caravan that you were towing on the day of the accident had any windows in its rear, weren't you? A. Yes. Q. You told the police that the caravan had no windows in its rear, didn't you? A. Yes, I did, but that was [an?]honest mistake. Q. Well step by step you agree, don't you, that that was what you told the police, that it had no windows in the rear? A. Yes. Q. Prior to you telling them that, do you accept that they had asked you several other questions about the description of the caravan? A. Possibly, yes. Q. They, I suggest, asked you about the colour [of?] the van? A. Yes. Q. They asked you if there was anything in particular about the back of the caravan? A. I can't remember. Q. I suggest that they asked you, for example, how long the caravan was? A. Possibly. Q. They asked you how many axles the caravan had, didn't they? A. Possibly. Q. They asked you what colour it was? A. A possibility, yes. Q. I am reading from page 969 of a [the?] blue book, and I would read out the questions. I suggest this question was put to you, page 969, point E, question 74 of the record of interview: "Q. Can you just describe the caravan to me, you said it's approximately maybe 25, 26 foot long" Like, you accept what I'm reading out is accurately recorded in the record of interview. "A. Yep. Q. How many axles? A. Yeah, it has three. Q. What colour? A. It's white. Q. Any stripes? A. No. Q. Out the front of the caravan is there anything particular about it, like is there anything stored on it, do you know what I mean? A. It has two gas bottles at the front, it normally has a clothesline that sits at the front side of the gas bottles. Q. Okay, what about the rear of the truck, is there anything in particular about the back of the truck? A. No, it only carries, it's sort of normal, it only has a ticket box on the back of the truck. Q. What's a ticket box? A. For the actual kids' ride. Q. Okay, is it on the back of the caravan?: A. No, it's on the back of the truck. Q. On the back of the truck, all right? A. Yes". Over the page, question 84: "Q. What about the caravan, is there anything particular about the back of the caravan, does it have like anything attached to the back of it, like any boxes or anything like that". If I could just stop there. By that point in time it was obvious to you, wasn't it, that the police were wanting to know what your caravan looked like because they were trying to work out whether the caravan you were pulling was or wasn't involved in the accident? A. Yes. Q. And they were being quite particular, weren't they, about [the?] description of the truck and caravan? A. Yes. Q. You knew, didn't you, it was important to be as accurate as possible in giving these particulars of description? A. Yes. Q. In answer to the question I just read which was 84, you said: "A. No, no we don't have anything attached to it. "Q. Okay, what about windows, is there a window at the front of the caravan? A. No, there's not. Q. What about the back? A. No". Firstly, you accept today, don't you, that that was wrong? A. Yes. Q. You say that was a wrong answer, do you? A. Yes. Q. The caravan later on that day was photographed, wasn't it, by the police? A. I think so, yes. Q. Was it the situation that you were not expecting to be interviewed on this day? A. I didn't even know the police were coming to interview us. Q. Even today you have no trouble telling his Honour, do you, that the caravan had two windows at the rear, one above the other? A. That's correct. Q. Are you able to explain if it was wrong how you got that so wrong when you answered the question at Mt Isa? A. An honest mistake. Q. Was it, in fact, the truth Mr Dee, that the caravan you were towing that day in fact did not have any windows? A. No. Q. On the rear? A. No. Q. Was it the case that the caravan you were towing that day had a black and white number plate? A. I'm not sure, but it had windows at the back of the caravan. Q. Did you and Mr Bell at the top of the hill, before you went back down the hill, have a discussion about what had caused the accident? A. No. Q. Did you have any discussion at all about what you should or shouldn't say about the accident if you were asked by anyone? A. No. Q. And you've never had such a discussion with Mr Bell since that time when you got out of the truck? A. No. Q. Question 138, page 976 of the volume, Mr Dee you were asked these questions and answers: "Q. Okay, did the police advise you how the accident was caused? A. Well nobody sort of said anything to me, not even after the fellow was taken away. Q. Yes. A. They didn't say anything about the accident at all. Q. Since that time have you found out how the accident was caused? A. No, I haven't heard anything at all". Was that the truth? A. That's correct. Q. This record of interview took place in August 2001, so six months approximately after the accident, you say that by that time that was the state of knowledge that you had about this accident, namely you'd found out nothing about what had caused the accident? A. That's correct. Q. And that remains, does it, your state of knowledge about this accident? A. Yes. Q. Question 141, you were then asked: "Q. Okay, all right, a witness to the accident has said that a truck and a caravan pulled out into the overtaking lane which forced the lady's car onto the incorrect side of the road. Did you see that happen at all? A. No, I didn't see any of that happen". Over the page, question 142: "Q. Have you heard that story before A. No, I haven't heard no stories or anything". You say that was the truth that you gave to the police? A. Yes. Q. And that remains, does it, the case? A. Yes. Q. That you have heard no stories or anything in relation to how the accident happened? A. No. Q. Question 145, you were asked this, "No one's told you that a truck and caravan was involved in the accident" and you answered, "No, nobody told me"? A. That's correct. Q. You stand by that answer, do you, that you gave the Mt Isa Police? A. Yes. Q. Mr Dee, can I take it that you understood that the police were trying to ascertain the identity of the truck and the driver that had caused this serious accident? A. Yes. Q. And you would have given them whatever information that you thought might have helped them to answer either of those two questions, namely the identity of the truck or the identity of the driver, is that correct? A. Yes. Q. You agree that you were unable to give them any information at all? A. Yes." 65 Mr Dee said he had noticed that the Bell group vehicles were registered in Victoria. He thought some of the number plates on the vehicles had been black and white, and some green and white: the trucks and caravans had always had number plates. 66 He was asked about how long he had spent at the accident site. He thought it had been twenty to twenty five minutes. He agreed he and Mr Bell might have stood at the front of the trucks on their return, and that a police car with sirens on might have passed them while they stood there. 67 Mr Dee said the registration number on the caravan as shown in Exhibit L was the same as was on it on the day, and that had police come to the Bega showground over the next five days, that caravan with that number plate would have been there for them to see. However he had no recollection of having seen police at the showground either the day of the accident or at all over the next several days. 68 He denied he had been travelling behind Mr Bell, rather than in front. He denied having pulled out and overtaken Mr Bell's vehicle. 69 As will appear when I come to consider Mr Bell's evidence, Mr Bell says the accident occurred when Mr Davis, who was driving a truck towing a caravan, passed his semi. He originally told police only that he had seen a small truck towing a caravan going up the hill after the accident, without mentioning Mr Davis' involvement. His description of the vehicle was in some respects similar to the one Mr Dee gave police and to me. Thus the possibility Mr Dee and Mr Bell had got their heads together to give false information to police to throw suspicion onto someone else, and take it away from Mr Dee, was a matter Mr Seton and other counsel continued to explore in depth. The following evidence T393-394 was given in cross-examination concerning the van Mr Dee said he had seen go past while he was up on the top of the hill: "Q. You told the police at Mount Isa, didn't you, in relation to the van - were asked this question, 202, blue page 984, you were being asked about this truck and caravan that passed you. You were asked, was it from Bells Amusements, you said, "No", that's question 201. Then 202: "Q. Did it look like something that had come from another show? Was it another show van or just a person travelling? A. Well, I'm not quite sure, I think it might have been personal, I just seen it that quick it just flew past". When you said, "I think it might have been personal", did you mean by that, that you thought it was not a show van? A. No. Q. I asked you, "Was it another show van or just a person travelling?", when you said, "I think it might have been personal", you meant by that, didn't you, it was not a show van, it seemed to you to be just a person travelling? A. Yes. Q. You were then asked this, 203: "Q. Okay, all right. A. There was a lot of people travelling the roads, you got all horse people and everything. Q. And prior to that truck and caravan going past, did you see any other cars go past? A. No. Q. Your car? A. No". Your memory of these events, Mr Dee, would be much better in August of 2001, than it is today? A. Yes. Q. From those answers and questions, it would certainly appear, wouldn't it, that in August 01, you were saying that, apart from the truck and van, no other vehicles had passed you? A. Yes. Q. Whereas today you say, do you, that other vehicles, in addition to the truck and van, did pass you? A. No, I don't think so. I can't remember any one passing me." 70 Mr Stitt drew Mr Dee's attention to an apparent difference in the quality of the lettering of the words 'Caution Long Load" in the photographs at pages 1043 and 1044 of Exhibit L as compared with the one at 1038 of Exhibit L. It was suggested to him that the three photographs were not all of the same caravan. He maintained they were, and that the writing had faded when the one at 1038 had been taken. 71 As will later appear, Mr Bell has made various claims over the years of having told other people at about the time of the accident that he had seen Mr Davis at the scene of the accident. One of the claims he made, (at the first trial) was that as he and his girlfriend and Mr Dee walked back up the hill after visiting the accident scene, he told his girlfriend and Mr Dee of Mr Davis' involvement. Mr Dee told me however that Mr Bell never told him that day that he had seen Mr Davis there that day. 72 Evidence from Messrs Owen and Elwin Bell was that the registration plate on the caravan at the time was as shown in Exhibit L. There it appears to be green or blue on white. Mr Dee agreed that if the caravan on the day had had a black and white number plate attached, and if, six months later, it had a plate of a different colour, plates must have been changed. But he denied having changed them or of having seen them changed. 73 As will later appear, within days of the accident's occurrence, police began receiving anonymous telephone calls suggesting they investigate the involvement of Mr Davis in the collision. Mr Dee denied he had made any such anonymous telephone calls. And he denied any knowledge of who had made them. 74 Mr Dee denied any proposition that he had been the cause of, or involved in, the collision. He denied having been a party to any arrangement to cover up any such involvement. Credit of Mr Dee 75 I found Mr Dee to be an impressive, straightforward, witness. He readily made concessions. He told me of having stopped to check the loads and tyres after leaving Nowra. He conceded later he had based that evidence on practice rather than recollection. He conceded his recollection would have been better in 2001 as to what Mr Bell's caravan looked like, than at the time of trial. He seemed to me to pay close attention to questions. He conceded there were things he might have forgotten. 76 He is obviously a man who when working for the Bell family, was close to and friendly with, Mr Owen Bell. So it could be a plausible scenario that if there were some sort of cover up, he and Mr Bell had been parties to it. There were matters in his evidence which caused me concern, such as: (a) He originally said he thought the caravan had a black and white number plate on the day but later said it might have been green and white. T341.1;T453.24 (b) He initially said Mr Bell had "sort of" pulled up behind him on the top of the hill T356.50 whereas he later said he had pulled up beside him. T370.21 (c) There were differences in his evidence at the two trials as to whether he had been getting out of his truck or had been out, when the small truck and caravan had passed him. T387.34;T389.20 (d) In his evidence in chief he said he had not seen anything while waiting for Mr Bell at the top of the hill T357.4, with the evidence of the white truck and caravan coming out in cross-examination by Mr Seton. T386.26-32 (e) He told police at Mount Isa the caravan he had been pulling had had no rear windows, whereas he told me it did, although he must have been familiar enough with it when speaking to the police to have been able to say what it looked like. He insisted to me that had been an honest error on his part. (f) There were differences in his evidence about whether or not he had seen Mr Davis' caravan before the day of the accident. Originally he said he had not previously seen Mr Davis' caravan T395.25 whereas he said later he had seen it. T413.34 However the first question T395.25 was: "You saw the caravan they lived in?" (speaking of Ms Grey and Mr Davis). In its context it is possible he interpreted that question as referring to the inside of the caravan. (g) Although Mr Bell said Mr Dee assisted the driver in the Datsun by keeping his head back, Mr Dee denied he had touched him: (though this perhaps reflects more on Mr Bell than on Mr Dee). (h) It does seem odd that the only discussion he told me he had with Mr Bell on the day or later concerning the accident's cause was what Mr Bell said he had seen in his rear vision mirror. But if Mr Bell told me the truth about Mr Davis' involvement and decided to keep that involvement from the police, he may not have been disposed to discuss matters of causation with Mr Dee; (i) Mr Dee said he did not know his own description to police of a little white truck towing a small caravan fitted the description of Mr Davis' truck and caravan. If he had been familiar with Mr Davis' rig, that may have been surprising, especially knowing, as he did, that Mr Davis had been at Nowra. But if he was not especially familiar with Mr Davis' rig, and Mr Bell did not tell him of Mr Davis' involvement, that evidence is not necessarily remarkable. It was not suggested he was especially familiar with it. (j) Mr Dee told me T446.50 he did not discuss the accident with Mr and Mrs Hodgkin. I find that strange when Mr Hodgkin was his boss within the Bell organisation, and Mr and Mrs Hodgkin were travelling ahead of Mr Dee in the convoy, and they must have seen each other to talk to at the Bega showground over the next few days. (k) Counsel for Mr Dee did not call Mr Bell's then girlfriend, Melissa, or Mr and Mrs Hodgkin. I infer each of them could have given evidence about the caravan Mr Dee was towing when he arrived at the Bega showground on the afternoon of the 11th February. I infer each of them could have given evidence about whether in fact Mr Dee arrived at the Bega showground on that or some later day, and as to what vehicles he was then driving or towing. There was no evidence any of them was not available to be called. I regard all three as having been witnesses one would normally have expected Messrs Dee and Elwin Bell to call. The failure to call Mr Bell's former fiancée on this issue was not attacked by Mr Seton. I conclude however nothing Mr and Mrs Hodgkin could have said would have assisted their case: Coles Supermarkets Australia Pty Ltd v Tormey [2009] NSWCA 135 at [72] per Ipp JA (Giles and McColl JJA agreeing); (l) Obviously, Mr Dee had a motive to lie to police, to Judge Coorey, and to me, because his involvement in the accident would expose him to the possibility of prosecution for a serious criminal offence such as s.52A(3)(c) Crimes Act, which carries a maximum penalty of seven years imprisonment. (m) Mr Dee's defence to the action rests to a significant degree on the fact that none of the witnesses to the accident accept that the caravan shown in the photographs in Exhibit L was the one towed by the offending driver, whereas that is the one Mr Dee claims he was towing that day. As appears below, a significant witness who supports Mr Dee on that issue is Mr Bell. As I have already noted, for reasons I shall come to, I have great difficulty in accepting anything Mr Bell says, absent independent corroboration. 77 Despite the above matters I note that Mr Dee has not worked for the Bell family for some years. His knowledge or recollection of some matters, such as number plate colours, and his conversations with Mr and Mrs Hodgkin may well have faded with time. Further: (a) To my observation, Mr Dee is not a well educated or sophisticated man. He was cross-examined vigorously and thoroughly by a number of highly experienced counsel. (b) In general terms there is consistency in the versions of the accident and its aftermath that he has given. It is to be noted in that context that he voluntarily submitted to a searching record of interview by experienced police officers, and gave evidence at two trials. (c) His evidence that he was travelling in front of Mr Bell is: (i) not inconsistent with Mr Lear's evidence that he saw only one truck and caravan combination on the hill, viz the offending vehicle; in other words Mr Dee could have been so far ahead that Mr Lear did not see him; (ii) consistent with evidence as to the position of the two vehicles at the top of the hill, with Mr Dee's truck and caravan being further from the road and Mr Bell's semi closer, suggesting Mr Dee stopped first. (d) Mr Dee's returning to the accident site with Mr Bell, and getting into Mr Veigel's car through a broken window to comfort him before the VRA personnel arrived was, I thought, the mark of a person who had no concern that he might be under suspicion. Further, he did not claim to have given him any physical assistance, although Mr Bell said Mr Dee held his head back so he would not choke. He must have known police would soon come. Although it was suggested by Mr Seton in cross-examination that Mr Dee did not in fact go back down the hill with Mr Bell after the accident, Mr Seton did not in the end submit he had not. Though Mr Hodkinson said he did not see anyone helping Mr Veigel, it does not follow that Mr Dee was not there. Though Mr Lear said he saw a middle aged man seeing to Mr Veigel, and Mr Dee could not have been accurately described as middle aged at the time, that also does not mean he was not exactly where he said he was and doing what he said he was doing. (e) Although, as later appears, police went to the Bega showground to look for the caravan whose number Mr Lear had given them, there were four police officers involved, and only Mr Fowler, one of the four, gave evidence. The fact police did not find the caravan Mr Fowler said they were looking for does not mean Mr Dee hid it or covered it over or took it somewhere else. One would need to know a great deal more about what the other three police officers did and over what period of time before seeing great significance in this piece of evidence. Mr Dee's counsel submitted the inconclusiveness of the search was, at best, neutral, and I agree. 78 My overall assessment of Mr Dee is that he is a person whose evidence I accept on relevant matters. I accept his evidence he made an honest mistake when he told police at Mt Isa the caravan had no back window. I am not persuaded he saw or was a party to any changing of number plates or caravans. Further, as later appears, I conclude that Mr Lear incorrectly recorded the number of the caravan Mr Dee had, shortly before, left on the top of the hill, and also, for reasons I shall come to, made a significant error of identification, in saying the caravan with that number belonged to the offending vehicle. Evidence of Mr E Bell 79 He has been a travelling showman all his life. His group normally worked at Christmas time at Batemans Bay. Then they returned their equipment to their depot, which is a farm near Queanbeyan. Then they took three or four "machines" to the Berry show, then to Nowra show, then Bega and then Canberra. He said the Gundagai show was usually on at the same time as the Bega show, and that his son, Mr Elwin Bell Junior, sometimes went to that show. That son had a truck and caravan at the time of the accident. Mr Bell said he could not recall whether he drove a pantech or a truck with a tray. He thought he might have had both kinds. Mr Bell said there were several caravans kept at his Queanbeyan property and usually "a truck or two." He identified the rig in Exhibit "J" as his "Cha Cha" ride and truck. He said he bought the Cha Cha ride in 1968. The truck was bought to carry that ride. He still has both ride and truck. In 2001 the truck was usually driven by his son, Mr Owen Bell. 80 He identified the truck in Exhibit "K" at page 1037 as one he had owned since about 1994-5. He had had the tray built on it to carry the "children's truck ride" shown in the photograph. He said the ride had never been covered by a tarpaulin while on the truck. The caravan attached to it had been bought in about 1997, purpose built, from GT Caravans of Melbourne. It was bought for his son Mr Owen Bell to live in, and he had lived in it since it had been bought. The square section at the back with the words "Royal Flair" is a ""pull out", or room extension. For the first 10 years when Mr Owen Bell lived in it, his child lived in the "pull out". The caravan was sold some years ago. 81 Mr Bell confirmed Mr Dee used to work for him till 2002 or 2003. His duties included driving the truck which pulled Mr Owen Bell's caravan. (The caravan, he said, is that shown in all three photographs in Exhibit "L"). He said when the vehicles were on the move there was a usual order in which vehicles would travel – smaller trucks, including with caravans, ahead of semis. 82 Mr Bell was cross-examined about the changing of number plates on the caravan Mr Dee said he was towing on the day of the accident. He recalled that the number plate on the caravan had been changed. In 1996 he signed a Vic Roads Declaration to have a new plate issued. The new plate had green numbers. He thought he would then have handed back the old plate to Vic Roads, but conceded he may not have. After that, the caravan continued to be insured under its old registration number. Exhibit ED7, ED6 He said he now has, but did not have then, a caravan with a black and white number plate. It is an antique caravan. He could neither confirm nor deny that in 2001 he had a caravan with a black and white number plate with the number O34209. T498.23 He said Mr Owen Bell's caravan had never had a black and white number plate. 83 He has known Mr Dean Davis for most of Mr Davis' life. On the day of the accident his son Owen rang him from Bega and told him a serious accident had occurred when Mr Davis had been passing his (Owen Bell's) vehicle. But he said it had not been Mr Davis's fault. Mr Bell later became aware it was alleged that Mr Dee had been responsible for the accident. David Hodgson, his manager, rang him about the accident, on the afternoon of the accident. He was aware at the time that his son Owen (as Owen Bell admitted to me) gave a statement to the police without telling them of Mr Davis' involvement. He told me he knows of, but does not think he has ever spoken to, Stacey Grey. 84 Mr Stitt put to Mr Bell inter alia that a realisation of Mr Dee's involvement in the accident by reason of his caravan's number plate having been recorded as belonging to the offending vehicle could have been an incentive to remove or alter the plate. He denied such a thing had occurred, T510.5 or that he had wanted to shift the focus of the police investigation way from Mr Dee. Mr E Bell's Credit 85 Mr Seton submitted that Mr Bell was an unimpressive witness who was unreliable on contentious matters. (a) I observed that Mr Bell seemed to take considerable care when answering questions; (b) He appeared to listen carefully to what was put to him.; (c) When apparently unsure of something he would ask for it to be repeated; See for example T487.7 (d) To my observation he is a man of considerable shrewdness; (e) It was his obligation within his business to deal with vehicle registrations and the replacement of defective number plates. He conceded it possible that he had kept an old number plate when getting new ones. T494.38 It is to be recalled that Mr Lear and his daughter wrote down the registration number of the caravan they had seen at the top of the hill, and which they both recognised as the caravan involved in the collision. The number they recorded was O34209. The number on Mr Owen Bell's caravan on 11 February 2001 was F34209, the plate's colour green on white. Mr Lear, however, recalled the colour of the plate as black on white. When it was suggested to Mr E Bell he had changed the number plate on the caravan to put the police off the track, he conceded he had changed number plates on vehicles on more than one occasion T499.45 but denied the proposition that he had changed the caravan's number plate after the accident. In fact there was no evidence Mr E Bell or anyone else ever did change the number plate on the caravan after the accident; (f) As appears below, where I deal with the evidence of Mr Owen Bell, there was a great deal of conflicting evidence about what Mr Owen Bell first told people about the alleged involvement of Mr Davis in the accident, and when he first told them. There were conflicts in Mr E Bell's evidence about when and by what manner his son first told him of the accident and Mr Davis' alleged part in it. When he gave evidence to me Mr E Bell, in cross-examination by Mr Barry, gave the following evidence, (over Mr Seton's objection,) of a telephone call he received from Mr Bell on the afternoon of the accident: "Q. What did he tell [you?] were the circumstances of the accident? A. Like Owen told me, when he rang me that there had been an accident along the road going to Bega, not far out of Bega, and I asked him, you know, what happened, and was it our vehicles, what's happened to them, and he said that he was going up a hill, a fairly steep hill and there was an overtaking lane on that hill and Dean Davis, when his truck was passing Owen, and Owen said that he seen in his rear view, he seen that there was two cars had an accident behind him and Owen, he said he thought it was his car. He said that he told Jamie Dee, he was ahead of Owen with a truck and caravan, he said, "Jamie, I think my car's been in accident, will you just pull up" So Jamie pulled up, Owen went up to the top of the hill and pulled up and they went back down the hill, run down the hill thinking that it was his car that was involved in the accident. When they got down, it wasn't his car, it was somebody else and they give assistance there to the people that was involved in the accident until the police and that arrived and after that, they went to Bega show. Q. What your son Owen told you was, that the accident occurred between two cars while Mr Davis was overtaking Owen's vehicle? A. That's correct." T505.1-21 (He later made it clear that his son had said Mr Davis had not caused the accident.) Although there was objection by Mr Seton to this evidence going in for all purposes I considered it was admissible under section 64(3) of the Evidence Act, and by section 60 was admissible for all purposes, and could see no reason to limit the purpose of the evidence. I could see no unfair prejudice. Mr Owen Bell was to be called. (g) Mr Bell said the call from his son had been on a mobile phone and from the Bega showground. However at the first trial when asked when his son first told him of the accident he said: "[I]t may have been that day or the next". He told me he "stood by" that answer. (h) Although Mr Bell told me he first heard about the accident from his son Owen, he said at the first trial it had been Mr Hodgkin who had first told him about it. When challenged about that at this trial, he qualified his evidence by saying he first heard of the accident from "David Hodgson and Owen". (i) It was put to him by Mr Seton that he had never heard from Mr Hodgkin or Mr Bell about Mr Davis' alleged part in the accident and that his evidence that he had was a creation on his part. He replied: "I'd say you were right off the ball". (j) Mr Bell said he had a conversation with Mr Hodgkin on the afternoon and evening of 11 February, T512.30 and that Mr Hodgkin had given him a description of the accident as relayed by Mr Bell. That description was the subject of objection and, having conditionally admitted it, I now reject it. These are my reasons: (a) Mr Seton attacked Mr Owen Bell's credit, and the evidence could have been admissible to restore credit under s.108(3), Evidence Act ; (b) I could not see its admission adding unduly to the trial's already considerable length; (c) But I could see some unfairness to Mr Davis, if Mr Hodgkin were not called; (d) I did not consider the evidence could have any but minimal weight; (e) I could not see the evidence as having any importance in my re-evaluating Mr Owen Bell's tattered credit; (f) I took into account that the evidence was hearsay on hearsay, but that no jury was involved, so as a judge deciding relevant issues I would not give the evidence undue weight if it went in. (k) My observation when dealing with Mr Dee about the failure of the Dee/Bell interests to call Mr Hodgkin, applies equally to Mr E Bell's evidence. As to what Mr Hodgkin told Mr E Bell on the day of the accident, and in particular whether there was any reference to Mr Davis' involvement, I infer Mr Hodgkin's evidence would not have assisted the case of Messrs Dee and E Bell. (l) Mr E Bell said that he had not been aware at the time that Mr Dee had been identified as the offending motorist by reason of the number plate on the caravan and had not become aware of that until he had been talking to the solicitor acting for him. T507.10 There was no evidence to contradict that. (m) Mr Bell admitted he had in the past falsified documents to obtain a financial advantage. T512.10 86 Mr Bell denied he had been the anonymous police informant. 87 While he has been dishonest in the past in order to obtain a financial benefit, it does not follow that I should reject all that Mr Bell has to say. Nor do the other matters I have referred to, whether alone or in combination, cause me to reject his evidence on significant matters. On most significant matters, I accept Mr Bell's evidence. I shall return later to consider whether I accept what he told me about being told of Mr Davis' involvement at the time of the accident, after I have considered the evidence of Mr Owen Bell. Evidence of Mr Owen Bell 88 Mr Bell is a son of Mr E Bell. He was at the Nowra show in February 2001. At about 9.00 am on the day of the accident he left Nowra, driving a semi trailer carrying a "Cha Cha" ride. Mr Dee left before him, driving a Hino truck, towing the caravan then used by Mr Bell as his home. It had been his home for ten or more years. Mr Bell told me that his caravan was always hauled by the Hino and that Mr Dee was always the dedicated driver. 89 Mr Bell identified the truck and caravan in Exhibit 'K' as the relevant truck and caravan. He said the show ride carried on the back of the truck was made especially for that truck. After 11 February 2001 he continued to use the caravan as his home for four or more years. Then he bought a smaller one. The old one was then renovated and sold. 90 He told me that the truck in Exhibit 'L' is the Hino which at the time of the accident pulled his caravan. The ride shown on the back is the one it carried at the time. The caravan is the one he lived in before and after the accident. The photographs on pages 1038, 1043 and 1044 in Exhibit "L" show the same caravan. 91 On 11 February 2001, Mr Dee left Nowra approximately five minutes before him. Mr Dee always went on ahead of Mr Bell. They stopped at a point 10-15 kilometres out of Narooma to check the tyres and loads. Then they proceeded towards Bega, with Mr Dee still in front. 92 He came to Stoney Creek Bridge. There were cars behind him. He recalls only Mr Dee being in front of him. He was in the left overtaking lane after the bridge. Mr Dee was 100 metres in front of him when he moved into the left lane. Six to eight cars passed him in the right lane. 93 As he drove up the hill he changed down gears and reduced speed. The cars were travelling at 90-100 kilometres per hour and his semi at 70. Most of the cars passed him. He saw a white Isuzu truck and cream coloured caravan go past him. He noticed Mr Dean Davis was the driver of the truck. When the truck and caravan passed him, they returned to the left lane and kept going, eventually disappearing from his sight. Mr Bell described the Isuzu truck as having been smaller than the Hino, with a body on the back made of aluminium or steel, with a "square" shape, white in colour. The body was "fully covered". The caravan, he said, was twelve to sixteen feet in length; he thought it had side windows but no back windows. Through his rear vision mirror, he saw a car go across the road and collide with an oncoming one. He called Mr Dee on his CB radio and asked him to stop. He owned a green coloured Holden Commodore at the time. It was being driven from Nowra by a Bell employee. He thought the car he had seen behind him had been his. 94 His then fiancée Melissa, was his only passenger. She had been asleep, but awoke when he began to speak on the CB. He stopped at the top of the hill where he saw Mr Dee's truck with caravan parked on the side of the road. 95 He parked his truck behind Mr Dee's. All three ran down to the scene of the accident. He then realised the green car he had seen was not his. While they were there, Mr Dee got into the injured man's car, while he, Mr Bell remained on the roadside, talking to Mr Dee through the car window. While he was there he also spoke to a lady (who I infer was Ms Broughton.) 96 Police arrived. He gave them his name and number and said where he could be contacted. He and Mr Dee and Melissa then walked back to the trucks. 97 He got straight back into his truck. Mr Dee left first. Mr Bell then travelled to the Bega Showground, where he set up his caravan next to Mr and Mrs Hodgkins' caravan. 98 The day after the accident he spoke to police. He did not tell them of Mr Davis' involvement in the accident. But he told them of the involvement of a truck pulling a caravan. He gave police a description of the truck which was different from the description he gave me. For example he told police the truck was a small truck like a Toyota Dyna. 99 He told police the truck had passed him just before the accident, and that he did not know whether the truck was a pantech. He admitted to me that by giving that description and by not telling police he had seen Mr Davis, he had withheld important information from them. 100 In a signed statement he gave Bega police on 13 February 2001 Exhibit BJ he said, amongst other things, the following: "…[A]bout halfway up the hill, …I looked in my rear vision mirror and saw a small truck like a white Toyota Dyna which was towing a caravan had moved up beside me and was passing me in the right lane. The Toyota Dyna was moving a lot quicker than me. He passed me and I had another look in my rear vision mirror and saw a white Datsun station wagon, which was going the opposite way to me, skidding along the guard rail, probably for about 20 to 30 metres. I looked back ahead and looked back into the rear vision mirror and saw a dark green Holden Commodore, that was travelling south going across to the wrong side of the road and it hit the front of the Datsun". 101 Another description of the truck and caravan he gave police at the time was: "The Toyota Dyna truck that passed me just before the accident was an older model, probably around the 1980 mark somewhere. It was white and had a white body. I don't know if it was a pantech. The caravan it was towing was only a short one, about 12 foot long, from what I remember about it. I think it was white, or a light colour and it might have had a green and brown stripe on it." 102 In cross examination by Mr Seton he gave me the following description of what he observed of Mr Davis' truck when it was still behind him: "Q. Mr Bell, some few questions ago I asked you whether when you first saw the truck whether it was in the overtaking land and you said it was. Was it all in the overtaking lane? A. No, not till I got it round back of my trailer, coming from the left lane into- coming like driving up the side of me, when it's overtaking you. Q. Very well. So when you first saw the truck, the first time you laid eyes on this truck, firstly you were looking in the rear view mirror, correct? A. Yes. Q. And was any part of the truck in the overtaking lane? A. When I first looked into my rear vision mirror, when he was coming out from the left lane half his truck was in the- going in the right land, with the blinker— Q. Half his truck was in the overtaking lane and the rest of it appeared to be, did it, in the lane behind you which you were in? A. Yeah, coming on an angle like he's going to pass you. Q. It had its indicator on, you say? A. Yes. Q. That was the first time you were ever aware there was a truck behind you for the last 10 to 15 kilometres? A. Yes." T558 103 Later he was asked "Q. It didn't seem that his truck and caravan was in any way preventing the white Datsun from coming into the correct lane? A. No" T560 104 Later he agreed he had given the following evidence at the first trial: "Q. At the time that the green Commodore crossed the double unbroken lines, where was Dean Davis' rig? A. He was gone around the corner, he was gone". T561 He told me he stood by that answer. Then he was asked: "Q. So he was actually out of sight, was he, when you saw the green Commodore cross over? A. He was out of sight, I can't remember." 105 Later when cross-examined by Mr Black he gave the following evidence: "Q. At the time that you made [your?] statement to the police, you knew that if you withheld information from the police or told lies to the police, that you were exposing yourself to the risk of getting into serious trouble, correct? A. Yes. Q. You say that at the time of this accident, you understood that Mr Davis didn't have a driver's licence, correct? A. Yes. Q. Do you say that that's the reason that you chose to mislead the police about Mr Davis being there? A. Yes. Q. Isn't it the case that you thought that Mr Davis might get into trouble that was a lot more serious than simply not having a driver's licence in respect of this accident? A. Yes. Q. That's because you knew that Mr Davis had been driving his truck in such a way that he had caused the accident, didn't you? A. No. Q. Well, why would you expose yourself to such serious trouble when the worst that could happen to Mr Davis, if your account was correct, was that he might get into trouble for driving without a driver's licence? A. I don't know. I've got nothing to say. Q. It's because you knew that he would get into a lot more serious trouble than that because he'd in fact caused the accident? A. He didn't cause the accident because he was up past me. Q. He wasn't past you at all, was he, he was at the back of your truck-- A. No, he was past me up the front of my truck. Q. He drew out as the Commodore was attempting to overtake your truck and the manner in which he drew out was such that the Commodore had to go on to the wrong side of the road. A. Dean was up past me truck, he was up past me truck and the Commodore was still coming over the bridge. Q. The reason that you tried to conceal Mr Davis's presence at the time of the accident was because you knew that he might get into a lot of trouble because he caused the accident. That's right, isn't it? A. He didn't cause the accident at all." T610.37-T611.30 When he was cross-examined by Mr Barry this evidence was given: "Q. Then taking your mind back to the accident you did see the green Commodore for a very short period of time before the collision with the car coming in the other direction, didn't you? A. Yes, I seen him up on the other hill. Q. But I'm talking about when you were going up the hill, just before the accident and before it actually had the collision with the white car you had seen it before that, hadn't you? A. Yes. Q. I think you saw it going across the wrong side of the road? A. Yes. Q. And I think at the time you saw it going across the wrong side of the road the vehicle that was being driven by Dean Davis was partly in the overtaking lane and partly in the inside lane? A. No, he was overtaking, yeah, like coming out from behind me. Q. He was coming out, at the time when you saw the green car going over the wrong side of the road Dean Davis' vehicle was in the process of moving out to overtake you? A. No, Dean Davis was already overtaking me, he was up where my truck— Q. But he was partly in the overtaking lane and still partly in the other lane, wasn't he? A. No. No, he was in the right lane. Q. When you gave evidence on 9 December 2004 what you said at page 1289 line D of the transcript before the judge on that occasion was, before you saw Mrs Broughton start to go out that he was still coming into the left lane? A. Still coming in the left lane? Q. That's what you said? A. Can't remember that." T613.46-T614.30 106 The proposition that Mr Bell was lying to cover up for Mr Dee appears from the following cross-examination by Mr Seton: "Q. Was it not the case that in fact Jamie Dee was travelling behind your vehicle? A. No, Jamie Dee was in front of my vehicle. Q. Was it not the case that he in fact overtook your vehicle as you went up the hill? A. He never overtook me once, he was in front all the time. Q. Was it the case that you saw the collision and formed the view that Mr Dee had caused it? A. Jamie never caused it because he was in front of me 100 metres. Q. Was it the case that you then got on the CB radio and told him about the accident and told him to pull over? A. I got on the CB radio and told him that my car's been in an accident, to pull up top and we'll run back down and see if it was my car." T565 107 Mr Bell told me that he had been trying to cover up for Mr Davis, by not telling police about his involvement, and giving them misleading descriptions of his vehicle. He said: "I didn't want to get him in trouble or anything like that because we'd been best mates since we were little." T550.33-34 (As later appears, Mr Davis had a different version of the closeness of the relationship.) Credit of Mr Owen Bell 108 It is hardly surprising that Mr Bell's credit became the subject of attack. There was very good reason. For example: (a) He conceded to me that he had knowingly withheld from Bega Police important information. T550.33 He said he had done so as he and Mr Davis had been "best mates since we were little". T550.33 (b) Having made that claim he told me he could not remember and did not know what Mr Davis could be blamed for. (c) Mr Bell admitted when cross-examined by Mr Seton that he had lied when telling Bega police "I don't know if it was a pantech", because in fact he knew it had been a pantech. However when cross-examined at the first trial on this issue he denied that statement to police had been a lie. (d) He told me he had first seen Mr Davis driving Mr Davis' truck when the truck was alongside him, when he had seen Mr Davis through the passenger side window of Mr Davis' truck. T549 But at the first trial he told Judge Coorey he could only see the passenger in Mr Davis' truck when it went past, and that he had seen Mr Davis in his rear vision mirror T555; this had occurred before Mr Davis' truck had come alongside. He told me he did "not really" stand by the answers he gave to Judge Coorey. But he maintained he had seen Mr Davis driving the truck. (e) (i) He was cross-examined on whether the Bell interests had been a party to swapping number plates or caravans to divert police attention from Mr Dee, once they knew someone had given police the registration number of his caravan. At the first trial Mr Bell gave this evidence about a bystander's taking his registration number and passing it on: "A. When we were down the bottom at the accident a man pulled up and got my rego number off my caravan and come down and said to a lady, 'Here you are, this is my number, I seen it all happen', and he took off. Q. So this is the situation. You knew that that man had gone up the hill in his car, correct? A. No, I didn't see him do it. Q. Isn't this the— A. My girlfriend was standing there when he gave the number and the rego number and that to the lady and she give it to the police." T570 (ii) He told me he could not remember that. What he said to me on the topic of number plates having being recorded was: "My fiancée was standing right next to him and she seen him write his name and number down and said, I seen everything. Nothing about a numberplate or anything like that." T570.20 (iii) He went on to tell me he knew nothing about a man's having given his registration number to someone at the accident site. But at the first trial he gave this evidence: "Q. So is this the position. You were down at the scene, you became aware that a witness had written out a registration number which you understood had been taken from your caravan? A. Yes." T571 Asked if he stood by that answer he told me: "No, I stand by- can't recall". (iv) Then he gave the following evidence: "Q. Mr Bell, by the time you left the site, the scene up at the top of the hill, by the time you drove away, it was your belief wasn't it, that someone had got the registration number of your caravan, do you agree with that? A. I do not know. I don't know if anyone got my rego. Q. It was your belief when you drove away from the top of the hill that that witness, that there was a chance that that witness thought that your caravan had caused the accident? A. Yeah, he probably thought that my caravan caused the accident, but my caravan was in front of me all the time. Q. Was it the case that as you drove away from the top of the hill that you were concerned that there was a witness out there who might have thought that your caravan was to blame for the accident? A. No. Q. Was it the case that that was something that troubled you or concerned you? A. It didn't concern me at all" T571 (f) Police spoke to Mr Bell at Mount Isa, some six months after the accident. He told me that although he knew at the time he should have told them of Dean Davis' having been in the truck, (as he should have told Bega police about it,) he had not done so, and had therefore knowingly misled them. (g) He told me he would be willing to lie to police to protect a friend T574: but that although Mr Dee had been a friend, he would not have lied to protect him T574: (h) The first time Mr Bell told anyone involved in investigating the case of Mr Davis' involvement, was in January 2004, when he was interviewed by an insurance investigator. T575 He said his understanding of what would happen if the claim against Mr Dee succeeded was "I just thought it'd – be in a bit of trouble, that's all". (I) Although he told me the only person he told about Mr Davis' involvement, on the day of the accident, was his father, at the first trial he said that after the accident he had told David and Sharon Hodgkin. He told me that he could not remember if that had been "the truth" but then said that what he had said at the first trial had been "all the truth". At the first trial he said he had also told his fiancée Melissa, and Mr Dee, as the three of them were walking back up the hill after going back to the scene of the accident. However he told me he could not now recall telling anyone apart from his father. T578 But at the first trial he was asked whether he had told his father on the day of the accident and his answer was "No, I never told me father". (j) Although he said at the first trial he had told Mr David Hodgkin of Mr Davis' involvement on the day of the accident, when insurance investigators spoke to him on 29 January 2004 he said: "I did not mention that it was Dean Davis in the vehicle that overtook me to David". He told me that statement had been a truthful statement. T581 Although he said at the first trial that he had told Mr Dee of Mr Davis' involvement as they had walked back up the hill, he told the investigators he had never told him. He told me that what he said to the investigators was true, and that until he signed the statement for the investigator, he had in fact only told his father. When Mr Seton put to him that he had told Judge Coorey of having told Mr Dee about Mr Davis on the day, he said, "I can't recall but Jamie was there with me all the time so he knew who was driving the truck." T578.26 (k) Although he told me that the first time he had mentioned Mr Davis' involvement to his father was on the day of the accident and by telephone, he told Judge Coorey that he had first told his father when he had seen him at the Canberra show, which is the show the Bell family went to after the Bega show. (l) He told me he had not been trying to put police off the track by giving them a false description of the truck, although he conceded he had given them a false description. (n) He agreed in cross-examination that show people stick together. Asked if he was sticking to Dean Davis in the witness box he said, "I hope so." Later he was asked, "You know that you're sticking to your mate, even now, don't you?" and he said, "No." Then when he was cross-examined by Mr Stitt this evidence was given: "Q. Not only did you know that Dean Davis was not licensed at the time of this accident but you also knew that he wasn't licensed to drive a truck, didn't you? A. Yes. Q. So that you knew that he was driving the truck because he was not licensed and that that was an offence? A. Yes, it was. Q. That was one of the reasons that you were keeping his identity concealed, wasn't it? A. Yes. Q. Did it also occur to you that another reason to keep his identity concealed was because he was directly involved in this accident? A. No. Q. But he was directly involved in the accident, wasn't he? A. No. Q. Well he was pulling out beside you at the time the green car collided with the Datsun? A. He was in front, he was up the front of my truck. Q. Do you think that by saying that he was up the front of your truck that you're still protecting Dean Davis? A. No. Q. I beg your pardon? A. No. Q. But if your version is correct that he was up the front of your truck and passed your truck, then on your version Dean Davis had done nothing wrong, had he? A. No. Q. So on your version there was nothing to protect him about, so far as this accident was concerned, from the police was there? A. No. Q. But that's exactly what you did, wasn't it? A. No. Q. Protect him? A. No. Q. From the police? A. No. Q. But you did because you didn't reveal his identity to the police, you've told us that? A. All right. Q. Isn't that the truth, Mr Bell? A. It's got to be the truth, yes. Q. It's got to be the truth, hasn't it. You see, what you're doing, I suggest, is that you know that Dean Davis caused this accident and you know that it was his driving which forced the green car off the road, onto the other side of the road, and that you are still doing your best to help him, aren't you? A. No. Q. Well do you think that if your version of the accident was accepted by the judge that that would help Dean Davis? A. I don't know. Q. Come on, Mr Bell, you do know? A. No, I don't. Q. You don't know, is that what you're saying to his Honour? A. Yeah. Q. If your version of Dean Davis's action is correct then he had nothing to be concerned about so far as the accident was concerned, isn't that so? A. Yes. Q. But you were concerned because you wanted to protect him? A. I'm not protecting him. Q. I thought you just told us that the showmen stick together? A. Yeah, we do. Q. Well aren't you sticking with him now? A. I'm always sticking with him. Q. You're always sticking with him? A. Yeah. Q. You're sticking with him right now, aren't you? A. Yeah." T621.46-T623.34 (n) When he was cross-examined about the fact that he told me the first person he told about Mr Davis' involvement was his father, and he was reminded that at the first trial he had said he had told Sharon and David Hodgkin on the day, he said somewhat unresponsively: "They knew Dean was coming to Bega and they seen him at Bega." T577.15 (see also T589) There was no direct evidence that anyone ever saw Mr Davis at Bega at that time. Ms Grey gave no evidence they went to the Bega show ground after the accident. I infer Mr and Mrs Hodgkins' evidence would not have given support for Mr Bell's evidence about what, if anything, he told them, on the day of the accident, concerning the accident. I draw the same inference from the failure of the Dee/Bell interests to call Mr Bell's former fiancée, Melissa, as Mr Seton urged that I should. I give no weight at all to the hearsay concerning Mr Davis' having been seen at Bega that day. That evidence has the hallmarks of something Mr Bell made up on the run to give support to his assertion of having told Mr Hodgkin of Mr Davis' involvement. I find Mr Bell did make it up. (o) At the first trial when he was cross-examined about the possibility number plates had been swapped he was reminded he had been aware someone had given his caravan registration number to a lady at the scene. He was reminded of his earlier evidence then cross-examined about it by Mr Seton: " 'Q. It was at that point when you realised that maybe there was someone out there suggesting that the vehicle carrying your registration number was to blame for the accident. Is that right? A. No, me and Dean had the same numberplate but there's one number different in it.' Do you stand by that answer that you gave on that occasion? A. Like I said yesterday, my girlfriend told them, told me that a fellow did give a piece of paper with his name and phone number and said, I seen everything. That's all I'm saying, that's all I can say about that. Q. But Mr Bell, what I'm asking you is simply about the evidence you gave at the first trial. The answer that you just gave, no, that I just read to you, I should say, "No, me and Dean had the same numberplate but there's one number different in it"? A. I can't recall that. Q. Was that answer that you gave to Judge Coorey correct? A. Like I said, my wife told me that a fellow give her a phone number, and his name to the lady, that's all I know. Q. I'm asking you about your evidence on the last occasion. Was that answer that you gave before his Honour Judge Coorey, correct? A. I can't recall. Q. You know as you sit here, don't you, that the answer you gave that I just read out, was false? A. I can't recall. Q. You were lying when you gave that evidence on the last occasion, weren't you? A. No, I wasn't lying." T594.9-40 There was no other evidence Mr Davis had a similar number plate to Mr Bell's. The issue was explored further T595 when the following evidence was given: "That evidence that you gave on the last occasion at the first trial was totally made up by you, wasn't it? A. I can't remember saying that at all. Q. Because you said whatever came into your mind if you thought it would help your story, didn't you, when you gave evidence on the last occasion. Next question, line I. "Q. So is this the position, you were down at the scene, you became aware that a witness had written out a registration number which you understood had been taken from your caravan? A. Yes. Q. You thought there and then, did you, 'well, wait on, that might be a problem because my number is very similar to Dean Davis''? A. Right. I didn't know that to this year when I see him in Bendigo show, he told me about that." That answer that I just read out was entirely false, wasn't it? A. No. Q. You never had a conversation with him at Bendigo about number plates, did you? A. No." T595.5-28 (p) At the first trial Mr Bell said he had had a conversation with Mr Davis at the Bendigo show, when Mr Davis told him his caravan registration number was very similar to his. But Mr Bell told me he had never had such a conversation. The precise reason Mr Bell told the many lies he has told may have been one I heard nothing about, although some were explored. He may well have lied to help stop Mr Dee from being falsely accused of having caused the accident. He may have lied so he would not be correctly accused. However, people lie for all sorts of reasons – sometimes apparent and sometimes not: R v Jovanovic (1997) 42 NSWLR 520 at 542 (Sperling, J). 109 Despite the above, some of Mr Bell's evidence struck me as honest. For example the following evidence was given: "…you were there when the accident happened and you tell us that you brought your truck to a halt as soon as you safely could and went back to help the people in the accident? A. I didn't go back to help the people, I went back to see if it was my car. Q. Okay, but when you went back you stayed there for a while and you were there even before the police arrived and you did, in fact, help people who were hurt in the accident? A. Yes. I never helped, Jamie did. That's why I had to stay back because Jamie was in the car." T606.35-44 110 Further, Mr Bell stayed at the scene of the accident for a considerable time after it occurred and gave his telephone number, name, address and registration number to Senior Constable Milton when he arrived, and said he would be at the Bega show. This does not strike me as conduct of someone keen to get away from police and police investigation. However it is probable that it was only after he had arrived back at the scene of the accident when he learned someone had apparently taken down the number of Mr Dee's caravan. 111 Mr Seton submitted Mr Bell gave me an "outrageously wrong version of the accident". Although I agree with Mr Seton it seems unlikely the truck and caravan he associated with the accident were already virtually out of sight, and ahead of him, when the accident occurred, I thought his description of the course of Mr Veigel's car as skidding along the Armco railing for twenty to thirty metres quite feasible. See for example photographs 1, 2, 7 and 9 in Exhibit B. He described Mrs Broughton's car as 'up on two wheels', which description Mr Seton attacked, but to an observer of a fast moving event that does not seem an unlikely perception. Mr Seton also submitted Mr Bell had no reason to give an exculpatory version of the collision, given he had gone to the lengths of letting down one of his friends. However I consider Mr Bell may well have felt guilty about informing on someone he regarded as a friend, so offered a sanitised version. 112 Mr Bell is aged thirty-eight. He went to boarding school between the ages of eight and sixteen. To my observation he is, notwithstanding those years of schooling, not well educated. To my observation, too, he does not have the good fortune to have a high mental acuity. By reason of the many matters I have outlined, and my observations of him, I treat his evidence with the utmost reserve, and would not accept it on any significant matter without some corroboration. Indeed, I took Mr Maconachie, who called him, to concede that to be the only appropriate approach. Did Mr Bell Ever Tell Anyone About Mr Davis' Involvement Before He told Insurance Investigators on 23 January 2004? 113 Before I leave Mr Bell's evidence, I shall consider further the issue of who Mr Bell allegedly told of Mr Davis' involvement, and when. (a) Mr Dee said he was never told, although Mr Bell at the first trial said he had told Mr Dee as they walked up the hill. It is not the sort of thing I would have expected Mr Dee to have forgotten, given he was the person independent witnesses claimed (through the caravan registration number) to have been to blame. (b) Mr Bell said at the first trial he had told Mr and Mrs Hodgkin on the day of the accident, whereas on 29 January 2004 he told investigators he had not told them. I have referred above to the reason for drawing a relevant inference by reason of their absence. (c) At the first trial Mr Bell said he told his father at the Canberra Show the following week, whereas he told me he phoned his father and told him on the day of the accident. In the end I took Mr Bell's evidence to me to be that the only person he had ever told before the investigators had been his father. (d) Mr E Bell told me his son had phoned him on the day, and told him, and this had been the first time he had known, but at the first trial he said Mr Hodgkin had phoned on the day of the accident and had been the first to tell him. (e) Mr Bell's fiancée, Melissa was not called, although at the first trial Mr Bell said he had mentioned Mr Davis' involvement to her as they walked up the hill to their truck. (f) There were no telephone records in evidence on this or any other issue. (g) I take into account what I have said about the credit concerning Mr Dee, Mr Elwin Bell and Mr Owen Bell, and the absence of Mr and Mrs Hodgkin and Mr Owen Bell's former fiancée. Conclusion 114 I accept Mr Elwin Bell's evidence that he learnt of Mr Davis' involvement on the day of the accident. I find it probable he learnt of this from Mr Owen Bell. I find that he accepted the truth of what he was told. I am not persuaded Mr Owen Bell told anyone else at the time. That is not to say it was not the subject of discussion between Mr E Bell and Mr Hodgkin. I think it probable there was such a discussion, given Mr Hodgkin was Mr E Bell's overseer. It is probably not necessary to resolve the question of how the information came to Mr Hodgkin, but I consider it probable it came to him from Mr E Bell. Evidence of Dean Davis 115 Mr Davis bought an unregistered Isuzu truck in Coffs Harbour at a time when he had only a car driver's permit. The cabin of the truck was white. It had a white pantech on the back. It was registered in Queensland on 10 May 1999. It was sold after the accident. 116 Mr Davis bought a caravan in 1999. He had the registration transferred to his name on 11 May 1999. Its registration number was 001 QCM. The caravan was 22 feet in length, and cream in colour. At front and back was written the word "Scenic". It had three windows on each side, one at the front and none at the back. At the back was a steel rack with two tyres mounted on it, about 1 to 2 feet apart. The caravan had 2 or 3 stripes on the side, but he did not recall the colours. A bucket game and a ladder game operated by Mr Davis at shows were carried in the truck. 117 He used the truck to pull the caravan. Stacey Grey was his girlfriend at the time he bought the caravan. They had been together then for about two years. Before that he had travelled with his parents. 118 Mr Davis told me he and Ms Grey separated at the end of 2001 or in early 2002. Then Jordan, their child, lived with her. They continued to communicate until one or two years ago. He said Jordan has lived with him since April 2008. In mid 2008 Ms Grey had two conversations with him and told him that private investigators had been to see her and that she would do anything to make sure he goes to gaol. On occasions she has called him some offensive names. He told me he had not socialised with Mr Owen Bell since 2001, and he has never had a vehicle with a registration number similar to F34209. 119 He said he did not go to the Bega show in 2001 and never had any intention of going. He did go to the 2001 Nowra show. It finished on Saturday 10 February. On 11 February at 7am he drove his truck to Sydney. He left the caravan at Nowra showground, as the road to Sydney was hilly and he wanted to get to Sydney quickly. There was nowhere to park the caravan in Sydney. He had an employee at the time called Michael, who worked with him for two months. He did not know his surname. Michael was in his mid twenties and was his driver. On the 11th February, Mr Davis, Ms Grey and Michael, were in the truck. They got as far as Blakehurst, having crossed Tom Uglys Bridge. He received a phone call. The event in Sydney had been called off because of rain. They turned around, returned to Nowra, packed up the caravan and drove to Canberra, where he had intended to go after his trip to Sydney. He stayed at the Canberra showground for two nights. While there he bought some show prizes. At that time he saw at least ten people he knew, also staying there. Then he went to the Gundagai show, which was on at the same time as the Bega show. After the Gundagai show he returned to Canberra for the Canberra show. 120 On 11 February 2001 he was nowhere near Bega, and was unaware of any accident having happened near there. 121 Mr Davis' denial of any involvement in the collision was the subject of substantial challenge. Mr Davis' Credit 122 There were matters about Mr Davis' credit I found troubling. (a) Driving: (i) In her evidence Ms Grey said Mr Davis always drove his truck, although unlicensed, and had been driving it at the time and place of the collision. Thus one can readily see that Mr Davis had a motive to lie about being both present, and driving, at the accident scene. (ii) In February 2001 he only had his learners permit T658.40 , and he knew that did not permit him to drive his truck. T659.11 (iii) Mr Davis told me that before he got the truck registered, his father got a friend's "staff" to drive it to Queensland, T659.31 whereas he told Judge Coorey his brother had driven it there. T659.44 (iv) Asked whether he had ever driven his truck between 1999 and 2001 he told me, " I think I drove it once." T661.36 That had been in Queensland and a distance of sixty kilometres and at a time when he had the caravan attached to the truck. (v) Later he said he had not driven it at all in 1999, 2000 and 2001, and that the one occasion "Might be 2002, 2003, something like that." (vi) Then he admitted that in 1999 to 2001 he had driven it: "Maybe round the showgrounds or something like that." T662 (vii) When he gave evidence to Judge Coorey he told his Honour that as at February 2001 he had driven the truck "short distances, not very far though' and 'short distances on the road,' including, on at least one of those occasions, while towing his caravan. In cross-examination by Mr Black when giving evidence to me he said: "Q. So on the assumption that what I have read out to you accurately reflects what you said in 2004, it is now your evidence that you may have driven your truck sometimes with the caravan attached between 1999 and 2001, is that correct? A. If that's the evidence I gave back then, well, yes." T663.41-45 (viii) Mr Davis said he could not remember when he actually obtained a truck licence. This evidence was given: "Q. Can I suggest to you that you first got your provisional truck licence in August 2004? A. I can't remember off the top of my head. Q. And between 2001 and 2004 you drove the truck with or without the caravan from time to time, didn't you? A. 90% of the time - 99% of the time I wouldn't have drove it. Q. How many times do you say constitute the other 1 or 10%? A. I couldn't tell you. Q. More than once? A. Maybe twice. Q. Before you were prepared to swear that you had only driven it once after 2001, do you now concede that it was more than once? A. Yes, I do. Q. Were you lying when you said once a few moments ago? A. Well, no, to my recollection that's all I can remember. Q. What's come about in the last few minutes that has improved your recollection so that you can remember that you drove it more than once? A. Well, you're sitting there reading the statement, not me." T664.25-48 (ix) Then there was the following evidence: "Q. Do you say that from time to time both before and after February 2001 you drove the truck on occasion? A. Yeah, very rarely. Q. And that included driving it on the highway? A. Might be out in the middle of nowhere, yes. Q. That included towing a caravan? A. Yes. Q. When you were towing the caravan normally that would be when you were travelling from one show to the next? A. Yes. Q. So it was your practice that sometimes when you were travelling from one show to the next you would drive your truck and caravan, is that right? A. I guess so." T665.14-30 (x) Mr Davis agreed he had been caught driving without a licence in 2002, and in 2006 he had been caught without an appropriate licence. (xi) Mr Davis maintained he always had a driver who drove his truck and if he did not, 'I used to get my dad's employees to drive it." T666.15 At the first trial he had said if he did not have someone employed to drive he would get his brother to drive. (xii) Mr Davis had good reason to be dishonest about having been at the accident site as he lacked a driving licence and had, if Ms Grey is to be accepted, been the cause of the collision. (b) Bega Show: Mr Davis told me he had not been at the Bega show in 2006. But when it became apparent there was evidence to the contrary (as there was) he said "Well if I was there and you've got evidence of it I was obviously there, mate." T667.34 (c) Book Keeping and Income Tax: Mr Davis agreed that in 2001 he paid no tax on his income, paid employees in cash, kept no wages books, made no tax deductions from wages, kept no workers compensation insurance, and used his pockets as his principal bank account. (d) Caravan: At the first trial he said his caravan had three stripes, but to me he said it had two. (e) Attitude To Tax Laws: Mr Davis expressed amusement when it was put to him by Mr Maconachie that in 2001 he decided what laws to obey and what not to obey, in particular, tax laws T816. Then he admitted convictions for a number of offences including assaults occasioning actual bodily harm, in 1997 and in 2001. He admitted that in 2001 he was a man given to violence and had been violent to Ms Grey – though he said she had been violent to him, too. (g) Demeanour: To my observation, at times Mr Davis treated these court proceedings with some levity. When cross-examined on a document which he considered irrelevant to the case; he laughed and spoke over the cross-examiner T694-697 and displayed signs of volatility. But I do consider that a witness, especially as Mr Davis is, poorly educated, and unused to court proceedings, may well have a natural inclination to laugh in such a situation. 123 There were some positive, and some neutral, matters: (a) There was evidence before me that in September 2001 the police learned that Mr Davis was working at the Young show, and in police uniform travelled to Young to interview him about the accident, but were told, when they got to Young, that he had left. That evidence was relied on by the interests who were attacking Mr Davis as evidence of flight, consistent only with a guilty mind. I am not satisfied the failure of the police to find him, and being told he had left, is necessarily significant. They were in uniform and it is not unknown in tightly knit circles for people to lie to police when they go looking for a member of that circle. I infer show people may have misled police by giving them false information, without Mr Davis necessarily having had any involvement. (b) Although Mr Davis sold the truck and caravan after the accident, he did not do so for quite some time. He still had them when police interviewed him in February 2002. Nor did any of the parties opposed to his interests, suggest the vehicles were incapable of being traced. (c) Mr Davis' accounts at the two trials were reasonably consistent with each other and with what he told police. (d) I agree with Mr Seton's submission that Mr Davis gave his evidence in a confident fashion. However I reject Mr Seton's description of him as 'non-evasive'. I consider he was evasive, especially about his driving history. (e) I agree with Mr Seton Mr Davis seemed appropriately indignant when propositions were put to him which (if he were truthful) were incorrect and/or illogical. Though Mr Seton submitted he had not been caught out or shown to have been a contradictory witness, I disagree for the reasons shown above. (f) I agree with Mr Seton that Mr Davis made a number of admissions against his own interests, such as: (i) Conceding he knew it was possible before the Five Dock function was called off that it might be called off; (ii) conceding that Mr Melonas had facilities at Hoxton Park which offered a convenient place to park his caravan; (iii) acknowledging his vehicles were not garaged at addresses at which they were registered; (iv) acknowledging advantages there would have been to him by taking his caravan to Sydney, such as fuel costs, and having better roads to travel on. 124 Overall, I was left with the clear impression Mr Davis, while in some ways apparently quite a straight forward witness, was not to be trusted in areas of importance. Tender of MFI#27: Extracts From Mr Davis' Evidence at the First Trial 125 At the conclusion of the trial, Mr Seton tendered MFI 27. I rejected the tender but said I would give my reasons now. These are my reasons. MFI 27 consists of seven pages of transcript from the first trial. Three pages (1500, 1501 and 1503) are from Mr Davis' evidence in chief and the other four are from his cross-examination. Some parts were tendered as "context" evidence and others as prior consistent statements. The first section, lines 40 to 43 on p. 1500 were said to be context evidence. They followed 32 lines of examination concerning the route Mr Davis said he took to Sydney on leaving Nowra. At line 29 he described a shop he saw after he crossed a bridge when coming into Sydney. He said, "there's a blue bait and tackle shop and a fish and chip shop just over a bridge". The four lines tendered I rejected as they amounted only to counsel's asking him to repeat an answer earlier given and added nothing, in particular, to "context". In any event I consider the time to tender that and other "context" material was when the witness was in re-examination. 126 Next, it was said lines 49 on p. 1500 to line 26 on p. 1501 were a prior consistent statement. But in the evidence Mr Davis merely gave a description of some roadway he said he was on when he received the telephone call telling him of cancellation of the event in Five Dock. There was nothing in his evidence to me significantly different from it. Counsel for the other parties did not suggest his evidence at the first trial of travelling to Sydney by a route which took him over a bridge near shops (as described in the passage) was inconsistent with evidence he gave me. In fact the two versions are consistent. Further, although counsel for other parties did suggest that evidence was fabricated, and that he was really on his way to Bega at the time, the statement said to be 'consistent' with the one he made to me, was made in his evidence to Judge Coorey almost four years after the event. The exercise of the discretion under s.108(3) depends on the effect of the evidence on the witness' credibility: R v DBG [2002] NSWCCA 328 at [50]-[51]. I am unable to see how that evidence can assist me to decide whether Mr Davis' evidence to me is fabricated. In other words, I do not think it has any effect on the suggestion of fabrication. It lacks importance: s.192(c) Evidence Act. 127 Next, Mr Seton tendered lines 15-57 on p.1550 to and including lines 14 on p.1551 as a prior consistent statement. It is part of his cross-examination at the first trial. It shows a consistency in Mr Davis at both trials in asserting that though he initially said he travelled by the F5, he really travelled all the way to Sydney on the Princes Highway. Mr Seton submitted this evidence put in context Mr Davis' apparently adamant attitude that he was on the M5, though he clearly was not. However I rejected this evidence for the same reasons I rejected the previous portion of evidence said to have been context evidence. 128 Finally, Mr Seton tendered lines 19 to 44 on p.1575 from the first trial, as a prior consistent statement. But for the same reasons I rejected the other passage said to be a prior consistent statement, I reject this portion. 129 I shall return later to say more about the issue of Mr Davis' credit. Evidence of Mr Leslie John Davis 130 Mr L. J. Davis brought up Mr Davis and is his grandfather, though he apparently is treated as and called by Mr Davis, his father. He was at the Nowra Show in 2001. As at 2001 he recalled Mr Davis had owned a truck and caravan for a year or so. Mr L. J. Davis had been to the Bega show in the past. When Mr Davis bought the truck and caravan, Mr L. J. Davis said he ceased to work for him and had to find thirty-five foot of "space". That was said to be the position in 2001-2003 and prior years. 131 At Nowra in 2001 he had quite a bit of space. In February 2001 Mr Davis took some of his space. 132 On the morning of 11 February Mr L. J. Davis left Nowra to go to Bega. On the Wednesday or Thursday before 11 February 2001 Mr Davis told him that after being in Nowra he intended to go to Sydney to do a festival with a Mr Peter Melonas and then travel to Gundagai. In cross-examination he was not challenged about that statement of intention. Credit of Mr Leslie John Davis 133 It was not submitted by any party that I ought not accept Mr Davis' evidence. He gave his evidence by telephone. In support of the application to have his evidence given by telephone, Mr Seton tendered medical evidence to show he could not travel from his home in Yatala, Queensland. Ironically, on the day he gave evidence, he was in Grafton, and said he had recently driven to Wollongong, towing a caravan. Evidence of Colin Michael Fowler 134 He is a retired police officer who in 2001 was stationed at Dapto. He received a call about the accident and visited the scene. He was given the number Mr Lear had taken from the caravan he had identified as the offending vehicle. Two days later he went to the Bega showground to see if he could identify the caravan whose number had been passed on to him by Mr Lear. Neither he nor those officers with him had been able to find the caravan. Over the next few months some anonymous telephone calls were received by the Bega police or by him, suggesting Mr Davis' involvement. Mr Fowler followed them up. 135 Mr Barry, who called Mr Fowler, tendered notes of the anonymous calls made by police personnel. Mr Seton objected but I allowed them in because I considered them to be relevant to the issue of "due search and enquiry". They strongly suggested a legitimate line of enquiry as to the identity of the driver responsible for the collision and were thus highly probative on that issue. They were not tendered for the truth of the assertions. So I could see no prejudice to Mr Davis. Mr Barry tendered, and I admitted, a document sent to Queensland police on 8 August 2001 with MFI '1', Mr Lear's statement to police. I admitted the documents, not for the truth of their contents but as proof of what documents were sent. I reserved the question of whether Mr Lear's statement would go in for all purposes, or whether its admissibility should also be limited. I admit Mr Lear's statement only as to the fact of what he said. He identified his signature on it when he gave evidence. But it was not put to him that it was inconsistent with his evidence to me. One inconsistency in it, relating to whether he had stopped or merely slowed down when recording the caravan's number, was put to him. But another, that he had not said to police when first questioned by them, the caravan's number plate was black on white, and that he was not sure of the actual colour merely that it was "dark", was not put to him. While it does not follow that a prior inconsistent statement must always be tendered after a witness has been asked to respond to inconsistencies in it, there is an unfairness to Mr Davis if I let it in for all purposes, when the number plate evidence is, as I find, so significant. 136 Mr Fowler said he had tried to find Mr Davis on several occasions. He eventually spoke to him on 24 February 2002, when he denied any involvement in the collision. On that occasion Mr Fowler looked at the caravan Mr Davis identified as his but Mr Fowler did not consider it fitted the description of the one he was expecting to see, based on what he had been told by others he had spoken to about the accident. T795 Mr Fowler arranged for Queensland police to interview Mr Dee and Mr Bell. Ironically, a variation in the caravan's registration number appeared in his written request to Queensland police. But that I consider was a typographical error and had no bearing on the enquiry's outcome or in this case. Messrs Dee and Bell were interviewed on 9 August 2001. Mr Dee denied any involvement in the collision, save for confirming he had been present. Neither mentioned to police the presence of Mr Davis at the scene of the collision. Mr Fowler's Credit 137 No question arose about Mr Fowler's credit. But insofar as it is relevant, I consider he gave his evidence honestly, and doing his best to be accurate. He seemed to me not to have a clear recollection of anything associated with his investigation however. He had long ago left the police service and I did not find it remarkable his memory of some matters was vague. He did have a clear memory for some things, such as having had printer problems when taking a statement from Mrs Broughton. 138 I shall now deal with some particular factual issues of significance. Mr Davis' Alibi 139 It is to be recalled that Mr Davis said he left his caravan in Nowra, drove to Sydney to attend a fair at Five Dock, got a substantial way there, received a telephone call saying the event had been cancelled because of rain, turned around, returned to Nowra, hitched up the caravan, drove through the Kangaroo Valley to Canberra, where he obtained some toys for show prizes, stayed several nights, and went to the Gundagai show. Thus he was nowhere near the accident site at the time it occurred. (a) I accept Mr L. J. Davis' evidence that Mr Dean Davis told him during the week before the accident that he intended to go to Sydney after Nowra; he was not challenged on that evidence; I accept Mr Seton's submission that having finished at Nowra and if he had no other show till the Gundagai show and intended to go to the Gundagai show the following weekend, it made sense for him to go to Five Dock for a day to earn some extra money; (b) Mr Davis said, and I accept, that Mr Davis had been to the fair at least once before the one on 11th February 2001; Ms Grey's evidence was to similar effect; (c) Canada Bay Council records and meteorological records show very extensive rain fell in Ashfield (near Five Dock) on 6, 7 and 11th February 2005 and that games of the type Mr Davis had, were then excluded from the area where the fair was held; Mr Melonas had booked some space for sideshows; the decision to call off sideshow access was at 9.30 am on 11th February. (d) Mr Davis conceded to me however he knew prior to 11th February that there was a prospect the fair might be called off; Nowra had had heavy rain that week too; (e) Mr J. L. Davis said that he had less lettable space at the Bega show than he had at the Nowra show; (f) Mr J. L. Davis and Mr Dean Davis, said that since Mr Dean Davis had acquired his own truck and caravan and no longer travelled with his parents, he had not travelled to the Bega show. But as the evidence shows, he did not stop going altogether; (g) Mr Melonas sublet a substantial part of Mr L. J. Davis' space at Bega showground; (h) He was in 2001 a close family friend of Mr L. J. Davis; (i) He had also made arrangements to have games at the Five Dock fair on 11th February. I infer that once the Five Dock show was in doubt Mr Dean Davis would have been prepared to travel to Bega to see what work he could find, although there was not necessarily space available to him. There was no other near show before the Gundagai show; (j) Apart from Mr Melonas's significant presence at Bega, Mr Davis' family had close connections with the Bega showground; further, his brother was to be there; (k) It does seem puzzling that he would go to the Canberra showground at a time when there was no show being held and no way of earning any income there. Though Mr Davis maintained he had to go to Canberra to get his game prizes, he conceded these prizes were usually ordered and delivered to show sites. (l) There were no receipts for any of the goods Mr Davis says he purchased at Canberra; (m) However Mr Seton tendered a photocopy of a receipt made out to Mr Davis on 14 February 2001 for accommodation at the Canberra showground. Ms Grey said they were at the Canberra showground for several nights. There is thus no disagreement between her and Mr Davis on this issue. However Mr Seton put to me that the receipt is evidence he was not conducting himself in a way suggestive of an attempt to hide. Mr Davis told me he paid some money to a friend when he left Canberra, and asked the friend to pay for his accommodation. There is some substance in the argument; (I also note this has some relevance to Ms Grey's credit, because of her suggestion Mr Davis was in effect hiding out at the Canberra showground.) (n) It was argued that it was somewhat illogical, if Mr Davis intended driving from Nowra to Sydney then to Canberra, to leave his caravan in Nowra, drive back to Nowra from Sydney, and then drive to Canberra on a much less agreeable road, the Kangaroo Valley route. It would have been so much easier, it was put to me, that he take the caravan to Sydney, where he could have camped at Mr Melonas' home at Hoxton Park, and driven on the F5 from Sydney to Canberra. Both Mr Davis and Ms Grey said they had previously stayed at Mr Melonas'. Though Mr Davis said there would have been a charge for staying with Mr Melonas, and he had prepaid for the night at Nowra, the fuel costs involved in returning to Nowra then proceeding to Canberra via the Kangaroo Valley were, I infer, less than any such accommodation charge would have been. In any event I am not persuaded Mr Melonas would have charged him anything, given the close family relationship; (o) There was evidence that the Kangaroo Valley route was not the longest route from Nowra to Canberra: travelling down the south coast to Batemans Bay, then up the Clyde Mountain, to Braidwood, and along the Kings Highway to Canberra, is the longest route – 270 kilometres. The shortest is via the Nerriga Road, 202 kilometres, and that via Kangaroo Valley is 212 kilometres. If Mr Davis was being truthful about not wanting to take the caravan to Sydney, the route he says he took, through the Kangaroo Valley, does not seem to me, on the evidence, to have been an unreasonable route; (p) There were no receipts for fuel bought on the journey, or of any relevant truck servicing. The absence of contemporaneous documents is not necessarily significant, however, given Mr Davis paid no tax and kept no business records. Further, if he was not the driver of the offending vehicle and did not know this was alleged for quite some time, why bother to keep such documents if he ever had them? (q) Other Considerations: There was no explanation for the absence from the witness box of Mr Melonas. As Mr Stitt put to me, this was a central part of Mr Davis' alibi case. Mr Seton put to me however that others could have called Mr Melonas. Mr Barry that he could not necessarily have improved Mr Davis' case. I decline to draw the inference Mr Stitt invited me to draw. Apart from the fact that he was available to all, I am not persuaded he could have assisted to throw more light on the alibi case than there is. (r) The entrance to the Snowy Mountain Highway was conveniently located near the accident site, making it a simple and logical way for Mr Davis to get away from the accident scene and escape early detection. Even if he did not go straight onto it, there were other roads in the Bega area which connected with that road. (s) The evidence given by Mr Davis about having travelled to Sydney from Nowra via the M5 is, as I see it, a neutral factor. The journey as described by Mr Davis was consistent with his having travelled on the Princes Highway all the way. Although Mr Davis said at the first trial he travelled on the M5, I consider that could be an error on his part in describing the route through southern Sydney after travelling along the Princes Highway. Although it was put by Mr Black that Mr Davis had been adamant at the first trial he had travelled via the M5, I do not accept that description. Rather, as I see his evidence, he was adamant in describing the route he took, whatever the route was called. Overall I do not consider there is compelling evidence to reject the alibi, without regard for other evidence, such as that of Ms Grey. The Identification By Number Plate Evidence 140 There was a substantial body of evidence concerning number plates. (a) The number recorded by Mr Lear was what linked Mr Dee to the accident as the driver of the offending vehicle and led to there being a substantial case against him as the offending driver. Mr Lear and his daughter (both of whom were completely independent) said the caravan whose number they recorded, and which was at the top of the hill, was the one they had earlier seen being towed by the offending vehicle. Yet that evidence is puzzling, because both denied the relevant caravan had been the one Mr Dee said he was towing that day. (b) Mr Lear was adamant when giving evidence before me that the number plate on the offending vehicle had been black and white, had begun with an 'O' and had no state identification; whereas the Dee caravan, while it had the numbers and sequence '34209', did not have an 'O', was not black and white, but green or blue on white, and had a state identification, namely that of Victoria. Further, evidence tendered by Mr Veigel's counsel showed that at the time of the collision there was no current issued number plate in any Australian State or Territory, carrying the number which Mr Lear and his daughter say they recorded. (c) I have considered what explanation there may be for what on its face seems a series of errors: a) recording of the wrong number; and b) identifying the caravan at the top of the hill as the one towed by the offending vehicle, when they said it was not the one Mr Dee says he left on the top of the hill. Mr Lear told me that after he noticed what he took to be the relevant caravan, he stopped to take down the number. However his daughter told Judge Coorey he had not stopped but had simply slowed down. It was put to Mr Lear by Mr Maconachie that at the first trial he had said that he had just slowed down. His reply was, "Did I? I can't recall." But he maintained to me that he had actually stopped. Given his earlier evidence of having only slowed, and that of his daughter to like effect, I think it probable they only slowed – and did not stop. Given Mr Dee's caravan had the last five of the six numbers Mr Lear recorded, and that those five were in the same sequence as on Mr Dee's caravan, I consider that between father and daughter, they made an error, and wrote down 'O' instead of 'F' as the beginning of the sequence. (d) Quite apart from the fact that, as I am satisfied was the case, Mr Lear did not stop, the collision, I am satisfied, was a most dramatic event for both of them to have witnessed. Further, given Mr Lear and April Lear saw two vehicles had stopped just after the accident site, I consider they each incorrectly jumped to the conclusion that there was a greater connection of the stopping, with the accident, than there was in fact. That is, they each assumed the driver of the truck towing the caravan they saw, had stopped precisely because he had caused the accident. It is to be recalled they only saw one caravan and truck on the hill; (e) As Mr Lear acknowledged, mistakes can occur, with the best will in the world. (f) I have considered the possibility that Mr Lear and April Lear were not in error. Mr Lear was very confident in his evidence that the caravan whose number he took was the offending one. April Lear was also apparently quite confident, at least in her evidence in chief. (g) If they were not in error, someone must have changed the number plate after the caravan left the top of the hill. But there is a further difficulty. That is that both Mr Lear and April Lear said the caravan Mr Dee said he left at the top of the hill was not the offending one. What follows from that is the possibility that Mr Dee, after he left the top of the hill, took the caravan somewhere and got another, and later passed it off as the one he had been towing that day, persuading loss assessors and police that was the one involved so they would take photographs of it. But as I have earlier observed, there is no evidence the number plate was changed. Nor is there any evidence Mr Dee swapped caravans and passed off a different one as the one he was towing that day. Further, there was a repair account in evidence showing a caravan insured in the name of Mr Owen Bell, with the registration number F-34209, received some repairs on 29 November 2000. It was described as a "Royal Flair Caravan" in the account. That I think gives support to Mr Dee's evidence that the one he parked at the top of the hill was the one in the photograph in Exhibit 'L'. It is possible Mr Bell owned more than one caravan. But there is no evidence he did. There was also evidence a comprehensive insurance policy on the caravan had been in force for some years. The policy showed the pre 1996 registration number (D94306) but it was not suggested that caravan was other than the one Mr Dee said he was towing. (h) It is to be recalled that Mr Lear said the offending truck had a pantechnicon assembly taking up about a third of the truck's tray. There is no evidence the truck Mr Dee drove had such an assembly on it. Its tray had been modified for the children's ride and carrying that ride was its only purpose. When asked what it was about the truck/caravan combination to cause him to say he had had no difficulty in identification, he said: "I was fairly certain that they were the caravan and truck…because they were similar and looked the same as the ones that were going up the hill." Mr Lear did say however Mr Dee's truck was very similar to the one towing the relevant caravan. (i) There was no evidence the Bell group had a caravan with a black and white number plate at the time, though it has one now. What the number is was not in evidence. (j) Although Mr Dee initially said the caravan had a black and white number plate, he later said it might have been green and white. (k) The dangers of convicting people for criminal offences based on identification of people, have long been the subject of warnings to juries. The dangers in a criminal trial of identification evidence concerning a motor vehicle have been said to be even greater. They were discussed in R v Clout (1995) 41 NSWLR 312. There the Court of Criminal Appeal (Kirby A-CJ) at 320-321 said: "The fundamental problem is the same, and in one sense more acute, in the case of the identification of objects as in the case of identification of humans. Every human is distinct and unique in appearance. Differences exist even between identical twins. But objects, such as knives or trucks will typically, today, be mass-produced, bearing similarity to thousands of other virtually identical objects." (l) Of course this is not a criminal case, but even where, as here, the burden of proof is the balance of probabilities, identification dangers are similar. As the above considerations show, there is reason to have disquiet about such evidence here. The Submissions 141 Mr Black ultimately made no specific submission about the party I ought find was the driver of the offending vehicle. Mr Barry submitted that there was an overwhelming case against Mr Davis. Neither Mr Black nor Mr Barry sought to argue for a case against the Nominal Defendant. 142 Mr Stitt submitted that the evidence supports a finding that the owner and driver of the truck towing the caravan is known and identified: if Mr Lear and April Lear are accepted, the owner was Elwin Bell and its driver Jamie Dee. But if Owen Bell and Stacey Grey are accepted, the owner and driver was Mr Davis. He submitted that the court must decide which version is more probable. 143 Mr Stitt submitted that the evidence does not permit a finding that some other truck towing a caravan was present on the hill and involved in the accident. On no available version, he submitted, is there scope for a finding that an unidentified vehicle was causally involved in the accident's occurrence. He referred me to Howell v The Nominal Defendant (1961-2) 108 CLR 552 for the proposition that s.34 Motor Accidents Compensation Act 1999 authorizes the enforcement of a claim against the Nominal Defendant only where the identity of the motor vehicle cannot be established, in the sense that the vehicle cannot be found: it has no application where a plaintiff is unable to decide which of two vehicles, both or one being known, caused the injury. 144 For Messrs Dee and Bell, Mr Maconachie submitted that I would find Mr Davis was the driver of the vehicle at fault. First, two witnesses, Ms Grey and Mr Bell, identified him as the driver at fault, and gave evidence of flight. Ms Grey's evidence was exculpatory of Mr Dee: I should accept her as a credible witness, and, with reservations, I should accept significant parts of Mr Bell's; further, I should accept Mr Dee. The assumption by Mr Lear and April Lear that the truck and caravan combination they saw at the top of the hill had been the offending combination was incorrect. They had made honest mistakes. Finally, the description of the offending truck and caravan given by witnesses, accords closely with the appearance of Mr Davis' truck and caravan. 145 Mr Seton, for Mr Davis, submitted that if the evidence of Mr Bell and Ms Grey is rejected, (as he submitted it should be) there is no evidence to support a finding that Mr Davis' truck and caravan caused the accident. Mr Seton referred to what he described as the dilemma: there is "compelling evidence from Mr Lear that identified a vehicle that is not the Dee caravan and…compelling evidence from Mr Lear and…his young daughter it is the vehicle that caused the accident and…not inconsistent with that is Mr Hodkinson's. The dilemma is though you have Mr Dee's evidence that he was in front of Mr Bell…[I]f you accept Mr Dee as a truthful witness then Mr Lear has made an error in his recalling of the number…[and] in the description of the van up the top. But it doesn't mean that Mr Lear has given any evidence that identifies Mr Davis' vehicle." He urged me to reject Ms Grey, Mr Bell, Mr Dee and Mr E Bell, and to accept Mr Davis. He urged me not to draw adverse inferences against Mr Davis for not having called Mr Melonas. He submitted Mr Davis had given a plausible reason for leaving his caravan in Nowra, and that the documentary evidence from the Canada Bay Council supported his alibi case and was compellingly consistent with his version of events. Consideration 146 If I accept Mr Seton's submissions, it would follow that Ms Grey and Messrs Dee and Owen Bell perjured themselves and attempted to pervert the course of justice. If I were to accept Mr Maconachie's submissions, it would follow that Mr Davis perjured himself. Whichever party I find was driving will, potentially, be exposed to a criminal prosecution for (at least) a breach of s.52A(3)(c) Crimes Act, 1900. 147 This is an unusual case. There is strong evidence pointing to the involvement of Mr Dee. And there is strong evidence pointing to the involvement of Mr Davis. 148 Mr Seton began his submission as follows: In our submission there are two basic ways to approach the factual dispute. One is to go straight to the kernel of the issue of, do I believe the Bell/Grey evidence or do I believe the Davis evidence. Look at that and then at the same time keep in the background the other evidence of the various eye witnesses. The other way is to start in perhaps a more typical police way, in an investigative way. Go to the eye witnesses who saw the accident, take the information from them and then to work backwards. 149 I have considered the case from both perspectives. However, whichever of those routes is taken leads me to find (as I do) that on the balance of probabilities the offending vehicle was driven by Mr Davis, and that his negligent driving caused Mrs Broughton to cross to the other side of the road and collide with the oncoming car of Mr Veigel, causing the injuries to both plaintiffs. These are my reasons: (a) What Eye Witnesses Said About the Caravan And Truck Driven By The Offending Driver: There is a consistency of descriptions by eye witnesses of the offending vehicle, and there is some consistency of those descriptions with descriptions of the caravan and truck Mr Davis had at the time. The following description of Mr Davis' caravan and truck comes from evidence he gave or which came from police or registration authorities: CARAVAN: 22 feet in length; cream in colour; registration number 001 QCM; the word "Scenic" on front and back; steel rack on back with two tyres attached; two or three stripes on the side; no rear windows but windows in front; and trafficator assembly with tail lights, 10"x24", horizontal mounting. TRUCK : White cabin; white pantech on back; registered in Queensland. The following is a summary of descriptions of the offending vehicle (I have excluded Mr Owen Bell's observations): CARAVAN: MR HODKINSON : Whitish in colour; not tall; a distinctive reddy/orangy coloured stripe down the sides approximately half way between top and bottom; seven to eight metres in length; four wheels; dual axle; similar to old Department of Main Roads caravan; an older style; could not recall if it had rear windows; similar colour to Mr Dee's caravan but a different style; more a production type caravan than Mr Dee's, which he thought looked purpose built. MR LEAR : white/creamy; fairly long; dual axle; no rear windows; some writing on the back 21 centimetres high saying, "Majestic" or "Majesty"; small turning indicator and tail light combined, rectangular in shape, smaller than the size of a tissue box; small black and white number plate, no state designation, began with an 'O'. APRIL LEAR : Bright colour such as yellow or white; not really short; a normal one. STACEY GREY : 27 feet long; dual axle; cream colour; dark brown stripe along the side with a lighter stripe below; a tail light on each side at rear; no rear window. MRS BROUGHTON : No rear window; a bar across the back; could recall something written on the back; all white; saw no stripes on the side; recalled no windows on the side; TRUCK : MR HODKINSON : Not a pantech small, less than 5 tonnes; white or light in colour; vertical exhaust on left hand side, greyish, canvas type canopy rather than a metal structure, roughly level with the top of the cabin; similar to pick up trucks common in the city; MR LEAR : Metal box on back; creamy/white cabin; could not recall vertical exhaust; like a pantech but not a full pantech truck; some sort of box at the back, made of metal. No eye witness recalled seeing a bar at the back of the offending caravan with two tyres attached to it, although Mrs Broughton recalls a bar. I take into account that tyres on the bar would have been distinctive. I also take into account that when investigating police saw Mr Davis' caravan and truck in Canberra a year after the accident it did not fit the description of what Mr Fowler was hoping to see, although he had spoken to witnesses and obtained descriptions from them of the offending vehicle. Mr Fowler did recall when giving evidence that the caravan was pale in colour and dual axle. (b) Despite variations in recollection, I consider the events would have been dramatic and shocking for witnesses. (c) Every eye witness shown photographs of Mr Dee's caravan said the caravan depicted in those photographs was not or did not look like the offending caravan; (d) Despite an apparently thorough investigation by police and insurance investigators, there is no evidence Mr Dee or anyone else changed the number plate on his caravan, or that he passed off to the police or insurance investigators a caravan as the one he towed that day which was other than the one he towed that day; (e) No caravan identified as having involvement in the accident had a stripe except Mr Davis'; (f) Mr Dee said he saw a little white truck towing a small caravan pass him when he was at the top of the hill; that is consistent with Mr Davis' description of his own truck and caravan; (g) Although I have expressed some reservations about Mr Dee's evidence, I accept his evidence that he was at the time of the accident ahead of Mr Bell, and that his vehicles were not involved in the accident; (h) I accept Ms Grey's evidence that Mr Davis was at the scene of the accident and involved in the accident; (i) I accept Mr E Bell's evidence that his son Owen lived at the time of the accident in the caravan Mr Dee said he was towing that day; (j) I am satisfied (and so find) Mr Lear and April Lear, probably because they did not stop at the top of the hill, made an error when they: (i) recorded the number of the caravan they saw parked at the top of the hill; (ii) described the caravan they saw at the top of the hill as the offending caravan. Their evidence is the only evidence connecting Mr Dee's vehicle to the accident; (k) Mr Lear was adamant the number plate on the offending caravan began with an 'O'; Mr Davis' caravan had a registration number beginning with an 'O'; (l) The fact that Mr Owen Bell and Mr Dee (as I find they did) returned to the scene of the accident for a period of at least twenty minutes; (m) The fact that Mr Owen Bell, the caravan's owner, while at the scene gave his personal details to Senior Constable Milton; (n) The fact that Mr Owen Bell (as I find he did) owned a green Commodore at the time, and it was travelling behind him on its way from Nowra to Bega, and it was Mr Dee's evidence (which I accept) that Mr Bell told him at the time of the accident he thought his car had just been involved in an accident, so they should stop and go back; (o) Consistent with the above, but having minimal weight, is Mr Own Bell's history to police of seeing the offending vehicle being a small truck towing a caravan, and his evidence to me Mr Davis was the driver, and his telling his father at the time of Mr Davis' involvement; (p) Mr Davis' propensity, which I find he had, to drive his truck on the highway, whenever it suited him, and, as I am satisfied occurred when he gave evidence before me, to lie about his propensity to drive without a licence; (q) The fact that (as I do) I reject Mr Davis' evidence that he was not present at the time and place of the accident; (r) Mr Davis' motive in lying and fleeing, as I find he did, to escape detection and prosecution for significant offences; (s) I have considered why Mr Bell gave no details to police about Mr Davis' presence at the accident site. The evidence of Messrs Owen Bell, Elwin Bell, Jamie Dee, Dean Davis and Ms Grey persuades me there is an ethos among sideshow people which involves protecting each other from law enforcement authorities. Further, I have referred to the general difficulty in theorising about why people lie; (t) In dealing with Ms Grey's evidence I have referred to the fact that she gave evidence which both inculpated and exculpated Mr Davis. Mr Bell's evidence was also both incriminatory and exculpatory of Mr Davis. I have taken account of that; (u) As I have observed, there was no evidence which corroborated that of Ms Grey as to Mr Davis' overtaking game. But I accept, having seen Mr Davis give evidence, that conduct of that kind on the road is quite within his capacity and inclination. He is a larrikin character, with little regard for rules, and a ready inclination to engage in disinhibited conduct of that type. The probability I think (and I so find) is that he was behind Mr Bell's vehicle, and about three quarters of the way up the hill. He could see he might lose an opportunity to pass if he did not pass soon. I find he failed to check to see what cars were in the overtaking lane, and made an impulsive decision; he put on his indicator, but before ensuring it was safe to do so, just began to move into the adjoining lane. (v) There is a consistency in the sequence of events, i.e. that Mr Dee, as he and Mr Bell both said, was travelling ahead of Mr Bell. None of the eye witnesses recalls seeing a truck and caravan fitting the description of Mr Dee's rig going up the hill. But a number recall Mr Bell's semi. 150 A matter Mr Seton spent a great deal of time exploring was the sighting, at the top of the hill, of two men standing near two trucks, apparently talking. In the end I am not persuaded they were Mr Bell and Mr Dee. They could have been anyone. That evidence is not evidence I find helpful in any way in resolving any issue. Mr Seton submitted Mr Bell had been one of those men: that he knew someone had taken the caravan's number, so must have seen Mr Lear at the top of the hill recording it. But Mr Bell said his then girlfriend or fiancée had learned at the accident site such a thing had occurred. I consider it more likely Mr Bell learnt of this at the site and not at the top of the hill. 151 There was also exploration and speculation in cross-examination and in addresses, about the series of anonymous telephone calls to police suggesting the involvement of Mr Davis. I do not see it as necessary for me to make any finding as to who made the calls. In any event I have not had regard for their contents in any way except as part of the history given by Mr Fowler when describing the steps taken by police to investigate the collision. 152 Although there were different accounts by eye witnesses about the number of trucks with caravans in the vicinity of the accident site at the time of the accident, I do not regard that as a material matter or necessary for me to resolve. That is precisely the type of issue about which versions might differ in the circumstances of a dramatic incident. 153 Finally, it is necessary to say something about the way in which the collision was caused. In one version given by Mr Bell, there was this evidence: "Q. And at the time I think you saw it going across the wrong side of the road, the vehicle that we [was?] being driven by Dean Davis was partly in the overtaking lane and partly on the inside lane? A. No. He was overtaking, yeah, like, he was coming out from behind me." 154 Ms Grey said of the overtaking game and its relationship to the accident: "As he was mucking around he – like the last time he done it before the accident, he must have seen the car coming and he's – I know he really quickly pulled back in because the caravan jerked as we pulled in." T152.25 155 She was asked whether she had seen the car behind Mr Davis' truck and van and she said, "Yes, I did in the rear vision mirror. In my mind I've got a glimpse of an either grey or blue commodore." Then, she said, the accident occurred 'closer to the pantech on the side.' [i.e. next to the tray of the truck]: The 'crash' occurred she said, almost at the instant he moved back to the left. I accept her evidence that she later asked him to stop but that he said he could not because he was on his Ls and that the police would be everywhere. I find she was in error when saying the Commodore's colour was blue or grey. Flight Evidence 156 As I have observed, I have relied in part, for my finding that Mr Davis was liable for causing the collision, on his subsequent flight. The evidence that Mr Davis immediately after the collision, as I find, changed course and headed for Canberra, was put to me by Mr Barry and others as evidence of flight. Thus, it was said, there was corroboration, since Mr Davis had a guilty mind. 157 When a jury in a criminal trial is asked to attribute consciousness of guilt to post offence conduct, the judge must direct the jury to consider alternative explanations for the conduct which would not lead to the inference: R v Edwards (1992) 173 CLR 653; R v Renzella [1997] V.R. 88. 158 When Mr Davis changed course and went to Canberra, his flight may have been simply from panic, to escape an unjust accusation, to protect some other person or to avoid a consequence extraneous to the offence: Edwards v The Queen (1993) 178 CLR 193 at 211. But accepting, as I do, that he made the statements to Ms Grey about the need to get away because he was on Ls and police would be everywhere, I find his departure was probably due to his knowledge that he had just been responsible for an accident, and, especially if caught by the police without a licence, would be in serious trouble with the criminal law. Collision Findings 159 I make the following findings of fact: (a) the accident occurred at approximately 2.10pm on 11 February 2001; (b) the accident occurred on the Princes Highway, about 10km north of Bega, just south of Stoney Creek Bridge; (c) the Princes Highway crossed Stoney Creek Bridge and comprised one lane in each direction at that point; (d) Mrs Broughton was driving a Holden Commodore registered number WMD 973; (e) Mr Veigel was driving a Datsun 200B stationwagon registered number VSJ 755; (f) the accident occurred when the front of Mrs Broughton's vehicle collided with the front of Mr Veigel's vehicle at high speed; (g) At the time of the accident Mrs Broughton was travelling in a generally southerly direction; (h) At the time of the accident Mr Veigel was travelling in a generally northerly direction; (i) approximately 25 metres beyond Stoney Creek Bridge, the Princes Highway widened into an overtaking lane for vehicles travelling south, as the highway ascended a hill; (j) the highway deviated slightly to the right and then curved to the left for southbound traffic; (k) at the point where the accident occurred, there were two lanes for southbound traffic and one lane for northbound traffic; (l) the northbound and southbound lanes were separated by a double white unbroken line; (m) the accident took place on Mrs Broughton's incorrect side of the road; (n) the point of impact between the two vehicles occurred 2-3 metres into the northbound lane; (o) skid marks caused by Mr Veigel's vehicle were seen by police who visited the scene soon after, in a straight line wholly within his lane, leading to the point of impact; (p) at rest, Mr Veigel's vehicle was raised on the guard rail on its near side; (q) prior to the time when the traffic which was travelling south reached Stoney Creek Bridge, it had banked up in a long convoy behind Mr Bell's slow travelling truck, a Kenworth semi-trailer; (r) Mr Bell's vehicle consisted of a prime-mover of approximately 18 feet in length, to which was affixed a semi-trailer of approximately 32 feet in length; (s) on the tray of the semi-trailer was carried an amusement ride called the "Cha Cha"; (t) the prime-mover and the trailer were owned by the Bell Amusements Group; (u) behind the prime-mover were a number of other vehicles including a truck towing a caravan owned and driven by Mr Davis, a Landcruiser, a green Commodore (Mrs Broughton) and a Holden Commodore station wagon (Mr Lear); (v) Mr Lear was travelling with his daughter, April Lear, directly behind Mrs Broughton's vehicle; (w) the truck towing the caravan was registered number 497 EZM and the caravan was registered number 001 QCM; (x) on 11 February 2001, Mr Dee was driving motor vehicle registration number FGZ-993, towing caravan having registration number F34-209 in a southerly direction along the Princes Highway in New South Wales; (y) on 11 February 2001, motor vehicle registered number FGZ-993 was owned by Mr Elwin Bell; (z) on 11 February 2001, caravan registered number F34-209 was owned by Mr Owen Bell; (aa) at all relevant times prior to the collision, there was only one truck towing a caravan behind the vehicle being driven by Mr Bell; (ab) the truck towing the caravan which was involved in the accident, was: (i) a single axle rigid truck which seemed old; (ii) like a Pantech; (iii) a light colour with a vertical exhaust pipe near the cabin on the passenger's side; (iv) flat-fronted, like a small delivery truck; (ac) the caravan was: (i) white, long, dual axle without a rear window; (ii) large, white in colour with a stripe or stripes down each side; (iii) with dual wheels, an older style caravan; (iv) fitted with a horizontal light mount which was rectangular; (ad) as the Princes Highway widened into an overtaking lane, the following events occurred: (i) Mr Bell pulled into or remained in the left hand or slow lane in his Kenworth semi-trailer; (ii) at this time he was travelling at a speed of approximately 70kph but his speed was dropping as he climbed the hill and as he went down through the gears of his truck; (iii) at this point, the vehicles behind the truck and caravan began to overtake the semi-trailer; (iv) the green Commodore driven by Mrs Broughton crossed into the right hand overtaking lane; (v) Mrs Broughton's vehicle began accelerating up the overtaking lane; (vi) at a point part way up the hill the truck towing the caravan pulled into the overtaking lane to overtake the slower semi-trailer; (vii) at some point during this manoeuvre, and as a result of it, Mrs Broughton steered her car to the right across the double unbroken lines and into the single lane for traffic going north, where she collided head-on with Mr Veigel's car; (ae) the collision occurred next to the Kenworth semi-trailer at some point which was still visible to Mr Owen Bell in his rear vision mirror; (af ) the overtaking truck and caravan and Mr Bell's semi-trailer continued up the hill; (ag) Mr Bell directed Mr Dee to pull up, as he thought that his car was the green Commodore involved in the accident; (ah) Mr Dee and Mr Bell pulled their vehicles over on the eastern side of the roadway at a point south of where the accident occurred; (ai) the two trucks were then parked in that area off the highway; (aj) Mr Lear was about 100 metres behind Mrs Broughton at the time of impact. He then stopped for a short time to provide assistance and his details to Mrs Broughton or her son before returning to his vehicle and continuing his journey south with his daughter; (ak) upon reaching the top of the hill, Mr Lear and Miss Lear saw a truck and a caravan which they each believed had been involved in the accident, parked on the eastern side of the roadway; (al) Mr Lear read out from the back of the caravan and Miss Lear recorded on a piece of paper, the registration number of the caravan which he believed was involved in the accident; Mr Lear did not stop his car to make that record; he merely slowed down; (am) that registration number was later provided by Mr Lear to police; (an) the vehicles pulled over on the side of the road and observed by Mr Lear and Miss Lear were the vehicles driven by Mr Jamie Dee and Mr Bell; (ao) Mr Lear and Miss Lear was each mistaken both in the number they recorded and as to the caravan's having been the one which had caused the accident; (ap) Mr Hodkinson was driving a red Falcon utility along the Princes Highway at the time of the accident; (aq) there was a white vehicle in front of him which was Mr Lear's vehicle; (ar) Mr Hodkinson saw a green vehicle in front of Mr Lear's vehicle which was Mrs Broughton's vehicle; (as) Mr Hodkinson observed a truck and caravan in front of the green vehicle which was the subject truck and caravan. (at) the subject truck and caravan were owned, driven and towed by Mr Davis; (au) the collision between Mrs Broughton's vehicle and Mr Veigel's vehicle was caused by the negligence of Mr Davis. 160 It follows that the proceedings against Messrs Dee and Bell, and the Nominal Defendant, should be dismissed, and that judgment should be entered for each of Mr Veigel and Mrs Broughton, against Mr Davis. 161 I propose to make the following orders, but will defer making them until I hear submissions: PROPOSED ORDERS: 8279/02 1. Judgment in favour of the plaintiff against the fifth defendant. 2. Judgment in favour of each of the second, third and fourth defendants. 3. The fifth defendant to pay the plaintiff's costs. 4. The fifth defendant to pay the costs of the second, third and fourth defendants. 1082/04 1. Judgment in favour of the plaintiff against the fourth defendant for damages to be assessed. 2. Judgment in favour of the first, second and third defendants. 3. The fourth defendant to pay the plaintiff's costs. 4. The fourth defendant to pay the costs of the first, second and third defendants. 5. Matter referred to the Registrar to determine readiness for trial upon the issue of damages. 162 There are outstanding costs issues from the previous trial. 163 I direct counsel for each plaintiff to serve written submissions, with draft short minutes of all orders it is submitted I should make, including orders dealing with costs issues outstanding from the first trial, by 5pm on 26 June 2009. Counsel for each defendant is to respond by 5pm on 10 July 2009. Counsel for each plaintiff may respond by 5pm on 17 July 2009. Copies of all submissions and draft orders are to be provided to my associate by 5pm on 17 July 2009. 164 Counsel may speak to their written submissions, and for that purpose I adjourn the matter to 9.30 am on 24 July 2009. oOo DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.