Commissioner of Police v Selby [2025] QMC 26

MAGISTRATES COURTS OF QUEENSLAND CITATION: Commissioner of Police v. Selby [2025] QMC 26 PARTIES: COMMISIONER OF POLICE (Prosecution) v LINDSAY FRANCIS SELBY (Defendant) FILE NO/S: MAG 00093657/24(1) DIVISION: Magistrates Courts PROCEEDING: Hearing ORIGINATING COURT: Brisbane Magistrates Court DELIVERED ON: 30 October 2025 DELIVERED AT: Brisbane HEARING DATE: 23 September 2025 MAGISTRATE: Magistrate Simpson ORDER: I find the defendant guilty CATCHWORDS: LEGISLATION: CRIMINAL LAW – TRAFFIC LAW – DRIVING WITHOUT DUE CARE AND ATTENTION CAUSING DEATH – Where the defendant bus driver says he believed he was applying the brakes of the bus – Where other evidence shows the brakes were not engaged – Where no mechanical issues were detected – Where there were no medical issues with the driver – Whether the excuse of unwilled omission is raised and accepted – Whether the defence of mistake of fact applied – Where in circumstances there was time to brake, whether the bus driver was paying sufficient attention to other vehicles – Whether there was any impediment to braking. s83 Transport Operations (Road Use Management) Act 1995 s24(1)(a) Criminal Code 1899 s25 Criminal Code 1899 -- 1 of 33 -- 2 CASES: s148AA(2) Justices Act 1886 De Silva v Commissioner of Police [2020] QDC 241 Johannesen v Zeller, ex parte Zeller [1958] Qd R 366 Crispin v Rhodes (1986) 40 SASR 202 Cutler v Zollar [2015] QDC 10 R v Falconer (1990) 171 CLR 30 Kaporonovksi v The Queen (1973) 133 CLR 209 R v Ellis [2007] QCA 219 COUNSEL: S Hedge for the prosecution S Holt KC with T Stevens for the defendant SOLICITORS: Queensland Police Prosecution Corp for the prosecution Gilshenan and Luton for the defendant -- 2 of 33 -- 3 Table of Contents Overview 4 The joint admissions The driving of Mr Selby 5 The death of Ms Cameron 7 The road and footpath 7 The conditions at the time of the crash 8 Investigations at the crash location 8 Investigations in relation to the bus 9 Stopping distance analysis 9 Anonymous bus driver 10 The defendant 11 Mr Selby’s account of events 12 The other evidence at the hearing Senior Constable Martin Jackson 13 The Pedal Misapplication Study 17 Paramedic Emily Jane Whittaker 17 Senior Constable Timothy Salau 18 Senior Constable Chloe Holmes 18 Senior Constable Michael Tompkins 19 The relevant legislation 22 The cases related to careless driving 22 General trial directions The burden of proof rest on the prosecution 24 The defendant did not give evidence and there should not be an adverse inference drawn against him because of that 25 What evidence should I use? 25 How I should treat expert evidence 26 Defences and Excuses If I believe there was an unwilled act or omission by Mr Selby what should I do? 26 What if Mr Selby was acting under a mistake of fact? 28 The facts as I find them and my conclusions based on those facts and the law 29 -- 3 of 33 -- 4 [1] In the preparation of these reasons I have been assisted by and draw upon the written submissions of the defendant’s counsel and the admitted facts. Overview [2] Mr Selby has been charged with a single offence against section 83 of the Transport Operations (Road Use Management) Act 1995 as follows: That on the 8th day of March 2024 at Brisbane City in the Central Division of the Brisbane Magistrates Court District in the State of Queensland one Lindsay Francis SELBY did drive a motor vehicle namely a bus on a road namely Edward Street Brisbane City without due care and attention And the said Lindsay Francis SELBY caused the death of another person namely Tia-Angel CAMERON Averments follow the above regarding the definitions of a motor vehicle and a road that are not in issue. [3] Mr Selby pleaded not guilty to the above charge and a hearing was conducted before me. [4] The charge was further particularised as follows: 1. The defendant drove a Brisbane City Council bus on a road, namely Ann Street and Edward Street in Brisbane City. 2. From the time the defendant drove around the corner from Ann Street into Edward Street and while he drove on Edward Street, he drove without due care and attention by: a. not paying sufficient attention to the location and movement of other vehicles; and/or b. not having his foot and/or leg in a position so as to effectively use the brake pedal to engage the brakes; and/or c. not using the brake and/or accelerator pedals so as to come to a safe stop behind the traffic on Edward Street. -- 4 of 33 -- 5 3. The defendant’s driving caused or substantially contributed to the death of Tia-Angel Cameron. [5] Before Mr Selby can be found guilty the prosecution must prove beyond reasonable doubt that: a. Mr Selby drove a motor vehicle on a road at the relevant time and place. b. He drove “without due care and attention.” c. His driving caused the death of Ms Cameron. [6] The only element in contest is the second element and the defendant says certain excuses or defences apply to that. If I find that they are raised on the accepted evidence then the prosecution must also exclude those beyond a reasonable doubt. [7] The evidence in this case is largely uncontested. Most of the evidence is set out in a comprehensive set of joint admissions. The joint admissions [8] An admission of a fact made under s 148AA(2) of the Justices Act 1886 (Qld) is sufficient proof of the fact without other evidence. In this case the prosecution and the defendant admit the facts in paragraphs [9] to [45] below. The driving of Mr Selby [9] Mr Selby was driving a Brisbane City Council bus with registration XB78AK (the bus) on 8 March 2024 at approximately 5pm in Brisbane city. [10] The bus was a 2006 MAN 18 series bus with an automatic gear box. The bus was a motor vehicle. [11] Mr Selby had driven a shift on the morning of 8 March 2024 from 7.14am to 11.27am. The shift started and ended at Garden City bus depot in Brisbane’s south. That shift was driven using a MAN A69 bus which had the same specifications as the bus involved in the crash. -- 5 of 33 -- 6 [12] Mr Selby’s second shift began at 2.50pm on 8 March 2024 at Garden City bus depot. He drove the bus on a route that went through Tarragindi, Holland Park, Coopers Plains, Salisbury, Moorooka, Annerley, Woollongabba, South Brisbane, and then into the city, driving on North Quay, Adelaide Street, to Fortitude Valley and then back toward the city on Ann Street. On that route, Mr Selby brought the bus to a complete stop on 49 occasions between 2.50pm and 5.03pm when the crash occurred. [13] Data recorded by Brisbane City Council systems on the bus establishes that: a. The bus was stationary 20 seconds before the impact (on Ann Street, approaching Edward Street). b. The bus began to move approximately 17 seconds before the impact. c. The speed of the bus increased as shown by the light green line on the following graph, with 0s being the time of impact with the wall. The other lines show acceleration front to back (x), side to side (y) and up and down (z). [14] The bus’ brakes were not engaged at any point between the bus turning from Ann Street into Adelaide Street and crashing into the building. This is apparent on the CCTV footage because the brake lights do not illuminate. -- 6 of 33 -- 7 The death of Ms Cameron [15] The bus crashed into the Anzac Square building on the left side of Edward Street while travelling toward Adelaide Street. [16] The front left corner of the bus hit the building, and moved along the wall approximately three metres. [17] Tia-Angel Cameron was standing in front of the building wall at or very close to the point where the bus hit the building. [18] Tia-Angel Cameron was killed by the bus hitting her body and the building, causing catastrophic injuries. The road and footpath [19] The parts of Ann Street and Edward Streets on which the Mr Selby drove the bus were roads. [20] At the time of the crash, between Ann Street and Adelaide Street, Edward Street: a. was one way, with direction of travel from Ann Street to Adelaide Street. b. had a moderate decline in the direction of travel. c. had four marked lanes: i. The far left lane was a dedicated bus lane, although other vehicles were permitted to enter approximately half way down Edward Street to turn left into Adelaide Street. There were left turn arrows painted on the roadway. ii. The middle two lanes were for vehicles driving straight ahead on Edward Street after crossing Adelaide Street. The second from left lane had straight directional painted arrows on the roadway. The second from right lane had no directional arrows. iii. The right hand lane is for parking in the middle of the block, and for vehicles turning right into Adelaide Street. The lane had right turn -- 7 of 33 -- 8 directional arrows painted on the roadway. iv. had 40 km/hr speed limit signed painted on the roadway in the middle two lanes. [21] The footpath was approximately 3.5 metres wide at the point the bus crashed into the wall. The conditions at the time of the crash [22] At the time of Mr Selby’s driving on Edward Street and the footpath: a. the road surface was dry and clear of debris; b. the road surface was in good condition, there were no potholes; c. all road markings were clear and visible; d. there were no oils, gravels, fluids or other substances on the road; e. it was daylight; f. the weather was fine and clear; g. there was no physical obstruction to drivers’ views down Edward Street from the corner of Ann Street toward Adelaide Street. [23] It was peak hour in Brisbane City on a weekday. There was heavy traffic on the streets in the city. Investigations at the crash location [24] There were no pre-impact tyre friction marks on the roadway or footpath which could be attributable to the bus. -- 8 of 33 -- 9 Investigations in relation to the bus [25] While driving the bus, the steering column is situated between the driver’s two legs. [26] On the right hand side of the steering column on the floor is the brake and accelerator pedals. [27] On the left hand side of the steering column on the floor is a duress alarm under a metal cover. [28] Mechanical inspection of the bus confirmed that: a. all road tyres were in satisfactory condition; b. the bus, including the brakes, was in a satisfactory mechanical condition; c. there were no characteristics of the mechanical condition of the bus which could have contributed to the crash. [29] Testing of the bus after the incident established that the brake lights illuminated when pressure was applied to the brake pedal sufficient to depress it by 10mm. Stopping distance analysis [30] Research has shown that for immediate hazards requiring an emergency response in the day time: a. For straight roads, 50% of average drivers will have a perception-response time of 1.8 seconds, with 85% of drivers between 1.1 seconds and 2.5 seconds. b. For intersections and curves, 50% of average drivers will have a perception- response time of 1.3 seconds, with 85% of drivers between 0.8 seconds and 1.8 seconds. [31] The “hazard” posed by the traffic on Edward Street including the black SUV was not an “immediate hazard” because it was visible and not unexpected. -- 9 of 33 -- 10 [32] The image below annotates six locations on the path the bus took on Edward Street: [33] The BCC Webfleet data and the application of stopping distance equations establishes the following as to those six points: Point Speed per Webfleet data Emergency braking stopping distance Gradual braking stopping distance Distance to queued traffic (represented by 40 paint sign) 1 15 km/hr 1.45m 8.86m > 24m 2 15 km/hr 1.45m 8.86m > 21.3m 3 15 km/hr 1.45m 8.86m > 19m 4 15 km/hr 1.45m 8.86m > 13.6m 5 16km/hr – 20 km/hr 1.65m – 2.57m 9.85m – 15.40m >6m Anonymous bus driver [34] A person who was employed as a bus driver for Brisbane City Council spoke to police but wished to remain anonymous. He told police that when he was a new driver about two years before 2024 there had been an incident where he applied the brakes but could not physically brake any further. He thought he had got his foot caught between the soft cover on the steering column and the brake pedal, but later realised that could not be the case because the cover and the pedal were so close, almost touching. It was -- 10 of 33 -- 11 possible his foot was caught on the soft siding, but he couldn’t be sure what happened. [35] The bus did stop and there was no crash. He was in a Volgren bus. The Volgren floor, column and seat are similar to a MAN bus, but not identical. He was driving at 1- 3km/hr in stop-start traffic. When he finished his route, he reported it at the depot and was told it was because he was a new driver and he would get used to it. He cannot recall any other incident and he has not had difficulty using the brakes since that occasion. He has been driving buses since that occasion to September 2025. [36] The parties accept the bus driver was telling the truth. The defendant [37] The defendant held a Queensland driver licence for heavy rigid vehicles, public passenger services, as well as a general licence for motor vehicles. [38] Mr Selby was employed as a bus driver with Brisbane City Council continuously from 2011 to 8 March 2024. In the years preceding 8 March 2024, he had: a. driven the type of bus he drove in the afternoon of 8 March 2024 on many occasions; b. driven the route that he drove in the afternoon of 8 March 2024 on other occasions; c. driven a bus on Ann Street and Edward Street on many occasions. [39] The defendant was breath tested at the scene and returned a result of 0.00% blood alcohol content. [40] Toxicology results of the defendant’s blood returned a blood result of zero alcohol detected. -- 11 of 33 -- 12 Mr Selby’s account of events [41] The electronic Ambulance Report Form includes the following note of what the defendant told the ambulance officers treating him at the scene on 8 March 2024: “[Patient] states was travelling 5-10km/hr around a corner in Brisbane city to proceed down a steep hill during bus route. [Patient] states ? foot slipped and missed break pedal. [Patient] was unable to stop vehicle as it picked up speed. … [Patient] stated swerved to miss parked vehicles and hit curb side. … [Patient] denies medical event. [Patient] denies [loss of consciousness].” (errors in original) [42] The defendant provided a version of events at the scene to QPS Officer Timothy Salau at 17:39 on 8 March 2024. The version is captured on Officer Salau’s body worn camera. This recording accurately recorded what was said. [43] A note made at 7.29pm at the Royal Brisbane and Womens Hospital in the Emergency Department records the defendant gave the following account of events to nurse Wilson on 8 March 2024: “was driving a Brisbane City Council bus this afternoon when he was coming around a corner ~ 15km/hr and has attempted to hit the brakes due to a line of cars in front of him. Unfortunately Lindsay thinking that his foot got stuck on the column of the steering wheel and he was unable to press the brakes so instead of hitting the line of cars in front of him, Lindsay states he steered the bus toward the curb and the bus has then mounted the curb and unfortunately hit a pedestrian…Lindsay denied a medical event and can recall all events.” (errors in original) [44] A note made at 8.04pm at the Royal Brisbane and Womens Hospital in the Emergency Department records the defendant gave the following account of events to social worker George on 8 March 2024: “[Patient] stated “he thinks that his shoe got stuck on the aceelerating paddle, he was unable to press the brake and was instead aceelerating, states there was a line of cars infront of him and instead of hitting them he steered the bus towards the curb and the bus then mounted on the curb, resulting in unfortunately hitting a pedestrian… [Patient] stated that “this is not something which was done intentionally and this happened out of his controlled, everything happened so quickly, the decision I made to steer the bus was right as there were line pf cars infront of me.” (errors in original) -- 12 of 33 -- 13 [45] The defendant provided a version of events to QPS Officer Martin Jackson at 21:32 on 8 March 2024. The version is captured on Officer Jackson’s body worn camera. This recording accurately recorded what was said. The other evidence at the hearing Senior Constable Martin Jackson [46] Senior Constable Jackson appears to have carried out most of the forensic investigation of this incident. He has expertise and training in the area of crash investigation. He directed Senior Constable Holmes to take photographs at the scene and gathered evidence from CitySafe cameras. Items 1 to 44 of the agreed exhibit bundle were tendered through him. [47] A lot of what is contained in the joint admissions comes from his investigation and so I won’t repeat any oral evidence that covers the same areas. He also gave evidence similar to witnesses Holmes and Tompkins that there wasn’t any issue in pressing the brake pedal and no difficulty moving his foot from the accelerator to the brake. He measured the stepover between the pedals. He examined the wear marks on the brake pedal. He took photographs to analyse the visibility of a bus driver through the windscreen of a bus as it made a similar turn at the same location. Those photographs obviously have limitations because they are an investigative tool and not actual images from the bus on the day of the crash. They give a general indication that there was a clear and unobstructed view out of the windscreen as the bus turns. [48] The CitySafe cameras played through this witness capture footage of the bus from the time it comes to a halt at the intersection of Ann and Edward Streets, before turning into Edward Street and then as it proceeds down that street. The best description of that footage, captured in exhibit 12, is that at about 27secs the black SUV comes to a stop on Ann Street at the intersection with Edward Street and pedestrians are crossing in front of it. Mr Selby’s bus comes to a stop behind the SUV at about 51secs. -- 13 of 33 -- 14 [49] Then at 1min and 1sec the lights turn green allowing the Ann Street traffic to move forward. The SUV and the bus remain stationary as pedestrians cross between the Anzac Square Building and the former People’s Palace. The bus and the SUV start moving forward at 1min 15sec. At 1min 20secs the SUV has commenced its turn into Edward Street and is now at an angle facing down the street. The bus remains in a straight on position as it hasn’t commenced to turn. [50] At 1min 21secs Mr Selby can be observed through the driver’s cab window commencing his turn and moving the steering wheel anti-clockwise. The SUV is now in the second from the left lane in Edward Street. By 1min 22secs the SUV is obscured in the footage as the bus crosses over through the turn. The bus is obviously a bigger mass which blocks any view of the other cars in Edward Street. [51] The bus continues its sweeping turn and at 1min 24sec the other cars in Edward Street can be made out. What is obvious is that the black SUV is no longer in the second from the left lane. The bus is at an angle to this other traffic. [52] The black SUV is in clear sight on the footage again at 1min 25secs and has its brake lights illuminated. It is in the second from the right lane now. No brake lights are illuminated on the bus. Through this same time the bus is seen to continue its turn to the left and never straightens into the lane. It is a sweeping arc of a movement. It continues through the arc and by 1min 29 sec has collied with the building. [53] The CCTV from within the bus showing Mr Selby in the driver’s seat (side on), exhibit 20, was played and it captures the moment from when the bus commenced moving from a stationary position on Ann Street near the traffic lights. [54] I observed from watching that CCTV that Mr Selby appeared to be looking ahead through the windscreen of the bus, his legs are straddled either side of the steering column and he has his left hand in the 8 o’clock position on the steering wheel. His right hand can’t be observed yet. The bus moves forward and Mr Selby adjusts the steering wheel slightly to the right, no doubt to perform a wide arc turn when he turns back to the left into Edward Street. At 19secs he starts turning the steering wheel anti clockwise in a number of sweeps as he comes parallel to the street edge of the -- 14 of 33 -- 15 footpath that runs down Edward Street. At 20secs the black SUV can be observed with most of its mass in the second from the left lane in Edward Street. The black SUV is almost at right angles to the A pillar of the bus. The SUV is moving and continues down this lane for a distance. [55] At 21secs into this footage Mr Selby’s right hand is seen on the steering wheel for the first time as it crosses over in front of him to continue turning the wheel to the left. At this point he appears to be still looking forward through the windscreen. Further he has now taken his left hand off the wheel and places it on his left knee. He has a relaxed demeanour. [56] At 22secs you can see that the bus is making its turn into the second from the right lane. The SUV is now out of sight on the footage. The bus continues in what seems to be an unremarkable turning manoeuvre into the second from the right lane. [57] Then at 24sec an audible sound can be from within the cab akin to a snapping sound. I can’t tell what the sound is. I can also observe Mr Selby bracing slightly by sitting more upright in his seat. The steering wheel at this point is still over to the left and he has not straightened the bus into the lane. [58] At 25secs the black SUV can be seen again. It is now in the second from the right lane. Meaning it must have changed lanes from the second from the left lane at some point. Mr Selby appears to maintain the steering wheel over to the left with a further slight turning that is anti-clockwise. The bus then just misses connecting with the rear left hand panels of the SUV. [59] At 26secs the bus moves back over to the second from the left lane and Mr Selby rotates the steering wheel hard to the right, i.e. clockwise. It appears to be so that he can get into the bus lane that runs along the edge of the footpath. [60] By 27secs the bus has mounted the footpath and collides with the building thereafter. All the while Mr Selby appears to be continuing to turn the steering wheel away from the building in a clockwise direction. -- 15 of 33 -- 16 [61] This police officer spoke to Mr Selby at the hospital as noted above. Mr Selby said in part: “I described to the officer at the scene, he asked me what I thought happened and I described what I thought happened.” ……….. “ I was in a situation where I was applying the brake, apparently wasn’t, my foot had gone further to the left and must have caught on the padding that’s on the steering column. I missed the brake totally and the bus was speeding up and I had to take evasive action …cause I was going to slam into four lanes of traffic….I just had to try…As I said it all happened so quick.” “like I wasn’t speeding or anything. I come round the corner 10 (indistinct) kilometres an hour. I’m in the left hand lane…wait for a car in front of me…It’ll all be on the video. The car’s gone around…there’s movement in the corner and moved to the right hand side because I need to do a right hand turn into Adelaide Street. I’m going down hill and the bus is not, umm, I’m trying to stop it, and it’s not stopping. I’ve just wheeled the wheel across to the left and steered it into the building. Unfortunately there was someone in the way that I didn’t even see. All I seen was this green telephone pole straight in front of me….when it all come to a stop the whole windscreen” (recording cuts off) ……… “Like I said I don’t believe there was any mechanical failure of the bus…I just think the tread of my shoe was on that padded sleeve that goes round the steering column. I thought I had me foot on the brake and the bus wasn’t slowing down it was going faster and I had to make a decision on the spot what I was going to do. I wasn’t going to crash into all those cars. I veered it back across the road and into the building” [62] Senior Constable Jackson was shown a Pedal Misapplication Study from the United Kingdom dated 10 May 2023. He was cross examined about whether he had reviewed any of the literature about pedal misapplication and he said he had not, but was familiar with it (T1-37 Line 39 to 47). He didn’t look at whether the “phenomenon of pedal misapplication”, to use Mr Holt’s phrase, applied in this matter. He focused his investigation on time responses. The witness was taken through some of the concepts in the study that relate to an analysis of pedal misapplication. They include: vehicle properties, pedal positioning, pedal location, pedal configuration and stepover (ie the distance between the surface plane of the brake pedal and the surface plane of the accelerator pedal). Ultimately the cross -- 16 of 33 -- 17 examination led to the witness saying he didn’t think he needed to examine the literature on this theory. He believed his investigation was sufficient. The Pedal Misapplication Study [63] The study referred to above and cross examined on was tendered through Senior Constable Jackson and became Exhibit 48. The authors of the report were not called nor was there any detailed analysis of the contents by any expert. [64] The term pedal misapplication is defined in the Introduction to the Study as: “Pedal misapplication is when the driver applies the wrong pedal of a vehicle, for example: accelerating instead of braking and braking instead of accelerating. One of the human factors that causes pedal misapplication error includes pedal confusion. Transport for London (TfL, 2022) has described pedal confusion as “ the manoeuvre where a driver confuses the acceleration pedal with the brake pedal resulting in either sudden unintended acceleration (SUA) or harsh braking”. It should be noted that pedal misapplication is not synonymous with pedal confusion, rather a potential outcome of pedal confusion. Unfortunately, pedal misapplication followed by the inability to regain control of the vehicle can result in collisions……” [65] The summary of the literature in the study at 3.6 on page 19 notes in part: “….Pedal misapplication impacts all drivers. However, there may be certain risk factors more associated with pedal misapplication collisions such as old age, cognitive impairment, small stepover pedal configuration, incorrect foot positioning, hesitant braking, short stature, smaller shoe size and possibly being female.” Paramedic Emily Jane Whittaker [66] Paramedic Whittaker is a member of the Queensland Ambulance Service and gave oral evidence before me. She treated Mr Selby at the scene of the incident for the minor cuts and injuries he had. She took notes of the conversation she had with him in the QAS electronic notemaking platform. Those notes are referred to in the joint admissions but she clarified some of the endorsements. In particular the question -- 17 of 33 -- 18 mark after [Patient] states means “query”. As outlined in this answer at T1-47 Lines 15 to 18: “----“It means “query”. So, like, “I think that’s what happened but” – when the patient says something like that – “I think my foot slipped. I – I – I think I missed the pedal” – it’s, like, “Query it happened, but I can’t confidently confirm that I s-s- missed the foot pedal” Senior Constable Timothy Salau [67] The body worn camera vision of the Mr Selby’s version of events at the scene to this police officer was played at the hearing and he was asked to comment on it at the hearing. It is a noisy recording and difficult to hear all of the words exchanged. No criticism of police can be made about this. It appears to be just the circumstances. What I can make out is that Senior Constable Salau asked about passengers on the bus as they might be possible witnesses. They also spoke about the incident and Mr Selby said, as best as I can make out, that he went around the corner, he “went to slow the bus down because all the traffic was stopped”….then indistinct…then ”my foot slipped off the brake or I missed the braking” [68] At the hearing it was put to the officer that the last word was “brake” and he accepted that. But ultimately it is what I make of the recording. [69] Further, following the exchange above there are more indistinct parts but then Mr Selby says “And I just steered the bus out of the way because I would have smashed into all of the cars”. Further indistinct statements are made by Mr Selby in an exchange with Senior Constable Salau. Senior Constable Chloe Holmes [70] This police officer is a member of the Forensic Crash Unit and went to the site of the incident on 8 March 2024. She sat in the driver’s seat of the bus and used the pedals. She didn’t have any difficulty pushing either pedal and the brake pedal felt firm. As part of her experience as a crash investigator she has routinely tested brake pedals and this one on the bus was within the normal range. -- 18 of 33 -- 19 Senior Constable Michael Tompkins [71] Senior Constable Tompkins is a member of the Brisbane Forensic Crash Unit and has completed a number of courses into crash investigation. On 14 March 2024 he attended at a holding yard to test the brake pedals of the bus. As part of this testing he wore the shoes that Mr Selby had worn. They were the same size as Senior Constable Tompkins shoes. [72] This witness recorded his testing on a camera and I have viewed the footage. In the footage this witness placed his heel where it was most natural to place it and conducted some movements with his right foot. In evidence in chief, he described it further (T1-57 Lines 39 to 46 and T1-58 Lines 1 to 4): “And in this natural position, could you use the accelerator without lifting your heel?-----Yes. Was there any impediment to doing that?---No. Could you use the brake without lifting your heel?---Yes. Was there any impediment to doing – to using the brake?---No, there wasn’t. Could you move your foot between the accelerator and the brake?---Yes. When you moved your foot between the accelerator and the brake, did you – your foot have any contact with the vinyl cover of the steering columns?---No. [73] He then placed his heel on a wear mark on the floor of the footwell near to the pedals and conducted similar tests. This position was about 5cm closer to the pedals than his natural position. As he explained in oral evidence, similar results were found. The brake and accelerator could be used without impediment and without the heel leaving the ground. Further with the movement there was no contact with the steering column cover. -- 19 of 33 -- 20 [74] Senior Constable Tompkins went on to describe the characteristics of applying the brake at T1-58 Lines 42 to 46 and T1-59 Lines 1 to 17: “When you pressed the brake in those shoes, how did it feel?---Um – it felt firm. It felt like a normal brake pedal in – in my car. When you pressed the brake, was the whole of your foot over the brake pedal area?---No. No. Can you explain to us how much of your foot was on the brake?---Um – when I was moving my foot between the accelerator and the brake – ah – I was only pushing maybe a quarter of the brake pedal with my foot. That was all that was really required to push the brake down. Right. And that observation that you just made, that your foot was pushing about a quarter of the pedal, was that the same for when you were in the wear mark and in your natural position?---Yes. How much of your foot would’ve been on that quarter of the pedal – or of the shoe, I should say?---I – I think probably half my foot – so half of the shoe was probably covering the pedal, but actually making contact with the pedal – um – I – I’d say probably a centimetre or two of the brake pedal on the right-hand side is what to be – actually contacted. When you pushed the brake pedal like that, was any part of the shoe touching the accelerator?---No.” [75] The witness also carried out testing related to the plastic cover that surrounded the steering column and whether that had any effect on applying the brake pedal. At T1- 60 Lines 14 to 21 he said: “……..So can you tell us what you – what your shoe – what the foot is having contact with in that – at this point of the test?---Uh – I think the toe on the left- hand side is in contact with part of - ah- like a hard plastic cover which is in front of the steering column. And the right part of the shoe is in contact with the brake pedal. And in that position, were you able to depress the brake pedal to know what was engaging?---Ah – Yes.” -- 20 of 33 -- 21 [76] He further tested the movement of his foot between the cover and the brake pedal and said that a little bit of force was required to come up because his foot was “kind of being squeezed between the steering wheel column and the – the left edge of the brake pedal.” [77] Later in the playing of the recording, Ms Hedge for the prosecution, asked the witness to explain another test related to the steering column, brake pedal and shoe. At T1-61 Lines 1 to 24 he said: “And can you tell us where – what your shoe was having contact with at that point?---Ah – I thin, at that point, my shoe – the left-hand side of it is up against the steering column again – um – and the right-hand side of the shoe is on the brake pedal. And in that position, were you able to depress the brake pedal sufficient to engage it – the brakes?---Yes. And what did the vinyl cover feel like when you were moving your foot around like that?---The vinyl cover moved when – when I put my foot against it, it – it moved around. Um – it wasn’t rigidly held in place. Um – there was the Velcro at the front, and whatever else was holding it, I’m not sure, but it was moving around with my foot. Now, you told us earlier about the two positions your foot was in to depress the pedals?---Yes. Was your – what position was your foot in to do this manoeuvre?---Uh – I think in this one, my foot is actually with the heel in the wear – the worn section of the floor. And so what – from the brake pedal to this position, what movement did you need to do of your foot or leg?---Uh – I actually had to move my whole leg across. It – it didn’t feel very natural to try and get my foot as far over against the steering column as possible. I had to move my knee as well. [78] The last element of significant evidence of this witness related to when he removed part of the vinyl cover and he was testing putting his foot against the hard plastic cover. He was asked at T1-64 Lines 42 to 46: “When your foot was touching that plastic cover and just your big toe on it, was there any impediment to picking your foot up and down?---No. -- 21 of 33 -- 22 Was there any impediment to moving back onto the brake?---No” [79] All of the above evidence was this officer’s observations and must be treated as such. It does not give absolute evidence as to how Mr Selby would have or could have engaged his feet with the pedals. It is a matter of the weight I place on it and what use I can make of it. The relevant legislation [80] Section 83 of the Transport Operations (Road Use Management) Act 1995 provides: 83 Careless driving of motor vehicles (1) Any person who drives a motor vehicle on a road or elsewhere without due care and attention or without reasonable consideration for other persons using the road or place is guilty of an offence. Maximum penalty— (a) if the person causes the death of or grievous bodily harm to another person and was an unlicensed driver for the motor vehicle at the time of committing the offence—160 penalty units or 2 years imprisonment; or (b) if the person causes the death of or grievous bodily harm to another person—80 penalty units or 1 year’s imprisonment; or (c) otherwise—40 penalty units or 6 months imprisonment. (2) If the court convicts a person of an offence against subsection (1) in the circumstances mentioned in paragraph (a) or (b) of the penalty, the court, whether or not any other sentence is imposed, must disqualify the person from holding or obtaining a Queensland driver licence for a period of at least 6 months.” The cases related to careless driving [81] The fact that a crash occurs or that someone dies as a result of a crash does not prove that a person was driving without due care and attention. It is an assessment of the driving as to whether it fell below the standard required. In De Silva v Commissioner of Police [2020] QDC 241, Chowdhury DCJ summarised the applicable law as follow: -- 22 of 33 -- 23 “[25] In Johannesen v Zeller, ex parte Zeller [1958] Qd R 366, the Full Court of the Supreme Court of Queensland considered the earlier incarnation of s 83 TORUM, which was in identical terms. Stanley J, with whom Hanger and Wanstall JJ agreed, approved of the interpretation of the words “due care and attention” in the case of Simpson v Peat [1952] 1 All ER 447 at 449, and that the question for a court is – “Was the defendant exercising that degree of care and attention that a reasonable and prudent driver would exercise in the circumstances?”. His Honour said at [8]: “In my opinion it must not be forgotten that the relevant circumstances are in part created by the defendant driver; and that lack of ‘due care and attention’ may not have amounted to negligence towards another person but may have been a failure to exercise that degree of care and attention that a reasonable and prudent driver would have exercised in looking after his own safety…” [26] In Crispin v Rhodes (1986) 40 SASR 202, O’Loughlin J said the following at 204: “It must be borne in mind that when considering whether or not a defendant has driven without due care the matter must be viewed objectively. The obligation to drive with due care ‘is the duty to exercise the standard of care that one would expect of a reasonably prudent driver in the like, or similar circumstances’.” [27] In Cutler v Zollar [2015] QDC 10, his Honour Judge Farr SC said this at p.4 of his judgment: “I turn now to my consideration of these matters. In my view, the Magistrate placed too much emphasis on the fact that the respondent’s conduct was not deliberate. I refer to a passage by way of example at page 15, line 35 of the transcript. That it was not deliberate is hardly surprising given the nature of the charge. Were it deliberate, there would be no doubt that the driving would have amounted to dangerous operation of a motor vehicle. The very nature of the charge of drive without due care and attention connotes a lack of deliberateness. It is a charge that is designed to reflect unintentionally, yet criminally, substandard driving. In my view, this is a serious instance of such driving.” -- 23 of 33 -- 24 [82] I will apply the law and cases as outlined above to the facts as I find them. General trial directions [83] In a criminal hearing in a Magistrates Court, a magistrate is bound to follow the kind of directions that might be given to a jury in a trial proceeding on indictment. With guidance from the Supreme and District Courts Criminal Directions Benchbook and based on the submissions of the parties; in my view the following directions should be applied to this matter. The burden of proof rest on the prosecution [84] For the prosecution to discharge its burden of proving the guilt of Mr Selby, it is required to prove beyond reasonable doubt that he is guilty. This means that in order to convict I must be satisfied beyond reasonable doubt of every element that goes to make up the offence charged. [85] Proof beyond reasonable doubt is the highest standard of proof known to the law. It can be contrasted with the lower standard of proof that is required in a civil case where matters need only be proved on what is called the ‘balance of probabilities’. That is, the case must be proved to be more likely than not. In a criminal trial, the standard of satisfaction is much higher; the prosecution must prove the guilt of the defendant beyond reasonable doubt. [86] It is for me to decide whether I am satisfied beyond reasonable doubt that the prosecution has proved the elements of the offences. If I am left with a reasonable doubt about guilt, my duty is to acquit: that is, to find the defendant not guilty. If I am not left with any such doubt, my duty is to convict: that is, to find the defendant guilty. -- 24 of 33 -- 25 The defendant did not give evidence and there should not be an adverse inference drawn against him because of that [87] Mr Selby did not give nor call evidence. That is his right. He is not bound to give or call evidence. The defendant is entitled to insist that the prosecution prove the case against him if it can. The prosecution bears the burden of proving the guilt of the defendant beyond a reasonable doubt, and the fact that Mr Selby did not give evidence is not evidence against him. It does not constitute an admission of guilt by conduct and it may not be used to fill any gaps in the evidence led by the prosecution. [88] It proves nothing at all, and I will not assume that because he did not give evidence that adds in some way to the case against him. It cannot be considered at all when deciding whether the prosecution has proved its case beyond a reasonable doubt, and most certainly does not make the task confronting the prosecution any easier. It cannot change the fact that the prosecution retains the responsibility to prove the guilt of the defendant beyond reasonable doubt. What evidence should I use? [89] I must consider this case on the whole of the evidence. That evidence includes the admitted facts, the oral testimony, the tendered report, the CCTV and other electronic and video recorded materials. It also includes the hospital notes and recorded conversations with Mr Selby. It is up to me what weight I put on each of those elements of evidence in drawing my conclusions. [90] The submissions of counsel are not evidence. Although I have considered them in their attempt to persuade me to accept differing propositions. [91] My conclusions must be rational, reasonable and logical with reference to the evidence. If I infer facts from evidence then I must consider the inferences most favourable to the defendant and exclude those beyond reasonable doubt before I can rely upon those to convict Mr Selby. -- 25 of 33 -- 26 [92] I must dismiss all feelings of sympathy or prejudice, whether it be sympathy for or prejudice against the defendant or anyone else. No such emotion has any part to play in my decision. I must approach my duty dispassionately, deciding the facts upon the whole of the evidence. How I should treat expert evidence [93] Certain witnesses such as the police officers from the Forensic Crash Unit were referred to as expert witnesses and were called to give evidence. The ordinary rule is that witnesses may speak only as to facts and not express their opinions. An exception to the general rule is that persons duly qualified to express some opinion in a particular area of expertise are permitted to do so on relevant matters within the field of their expertise. [94] However, the fact that we refer to such witnesses as expert does not mean that their evidence has automatically to be accepted. I am the sole judge of the facts and I am entitled to assess and accept and reject any such opinion evidence as I see fit. It is up to me to give such weight to the opinions of the expert witnesses as I think they should be given, having regard in each case to the qualifications of the witness and whether I thought them impartial or partial to either side and the extent to which their opinion accords with whatever other facts I find proved. [95] This is a trial by a magistrate, not a trial by expert; so it is up to me to decide what weight or importance I give to their opinions or indeed whether I accept their opinion at all. Defences and Excuses If I believe there was an unwilled act or omission by Mr Selby what should I do? [96] Mr Holt KC says the defence of unwilled omission applies. This is distinct from accident. Section 23(1)(a) of the Criminal Code 1886 states that a defendant is not criminally responsible for an act or omission that occurs independently of the exercise of the defendant’s will. In other words, the act or omission must be ‘voluntary’ (R v -- 26 of 33 -- 27 Falconer (1990) 171 CLR 30, [38], [72]; Kaporonovksi v The Queen (1973) 133 CLR 209, [226-227]). The subsection is subject to the ‘the express provisions of this Code relating to negligent acts and omissions.’ [97] Mr Selby’s counsel says I should apply R v Ellis [2007] QCA 219 at [39]. The Benchbook summarises the relevant concepts by noting that an ‘act’ within s 23(1)(a) embraces human movement in association with some mechanism or implement. So just as a person can be criminally responsible for the consequences of the discharge of a gun, but only if the discharge of the gun was a deliberate choice by that person, so too can a person only be criminally responsible for the consequences of driving their vehicle forward where they made a choice to drive the vehicle forward by hitting the accelerator. Thus, the discharge of a gun will not be a willed ‘act’ if the person firing it believed that they were engaging the safety catch. Likewise, the hitting of the accelerator will not be a willed act if the defendant meant to hit the brake. [98] R v Ellis concerned the accused driving into a group of people and causing grievous bodily harm and bodily harm. It was a case directed at the act of applying the accelerator and not the brake. It did not concern an omission where a pedal was not applied at all. [99] Here we are dealing with an omission on the part of Mr Selby. The omission to apply the brakes of the bus. Mr Holt KC for Mr Selby says that if his client believed that he was – and was in fact trying to – apply the brakes, then omitting to apply the brakes occurred independently of the exercise of his will as set out in s. 23(1)(a). Mr Selby’s failure to apply the brakes was not a willed act. He says this amounts to an accident. He says the nature and tenor of Mr Selby’s explanations, including his attempts to explain what happened, demonstrate the unwilled nature of the omission to act. [100] Mr Holt further says that at the very least the prosecution cannot exclude the reasonable possibility that the omission occurred independently of Mr Selby’s will. [101] In my opinion this excuse or defence will have limits in the context of driving without due care and attention applying the reasons of Farr SC DCJ in Cutler v. Zollar as -- 27 of 33 -- 28 noted above. The very nature of a charge of this kind connotes a lack of deliberateness. It is designed to reflect unintentionally, yet criminally, substandard driving. [102] If I am satisfied that this excuse or defence is raised on the evidence then it is for the prosecution to exclude it beyond a reasonable doubt before I could convict Mr Selby. What if Mr Selby was acting under a mistake of fact? [103] Our law provides that a person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as the person believed to exist. [104] Whether I need to consider this issue will depend on what evidence I accept. There is a view of the evidence that suggests that the defendant believed he was applying the brake even though he wasn’t. [105] Whether I consider that the defendant did hold such a belief or not is something for me to decide. If the defendant failed to apply the brake under an honest and reasonable, but mistaken, belief that he was already applying it, he is not criminally responsible to any greater extent than if the real state of things had been such as he believed to exist. [106] If I conclude that the real state of things was that he did not apply the brakes of the bus, but that the prosecution have failed to disprove that the defendant honestly and reasonably believed that he was applying the brake, he will not be criminally responsible to any greater extent than if he was actually applying them. That would mean that the defendant should be found not guilty. A mere mistake is not enough, the mistaken belief must have been both honest and reasonable. An honest belief is one which is genuinely held by the defendant. [107] On the other hand, if the prosecution proves beyond reasonable doubt either that the defendant did not honestly hold the relevant mistaken belief about the application of -- 28 of 33 -- 29 the brakes or that the belief was not reasonable in the defendant’s circumstances, then I would find that the defence of mistake of fact did not apply. [108] There is no burden on the defendant to prove that he made an honest and reasonable mistake of fact. The prosecution must satisfy me beyond reasonable doubt that the defendant did not do so. The facts as I find them and my conclusions based on those facts and the law [109] The time, date and place of this charge are not contested and are admitted. It is not contested that Mr Selby was the driver of a bus involved in a crash. Likewise it is admitted that Tia-Angel Cameron died as a result of the driving of Mr Selby. The only element to be decided is whether the driving of Mr Selby was “without due care and attention” with reference to the particulars. [110] There are elements of the evidence that I don’t find helpful in reaching my conclusions. The anonymous bus driver statement is unhelpful. It relates to a bus driver less experienced than Mr Selby and I don’t know the full context in which the things that are said occurred. Further in his account “he couldn’t be sure what happened”. Moreover, the things complained of occurred once in a different bus and never happened again. Lastly, Mr Selby was able to bring his bus to a complete stop on 49 occasions in this trip prior to the crash. [111] The Pedal Misapplication Study isn’t particularly helpful. No expert was called to explain it and how it might apply in these circumstances. Senior Constable Jackson was not an expert in the application of these finding. The theory relates to “when the driver applies the wrong pedal of a vehicle, for example: accelerating instead of braking and braking instead of accelerating.” For reasons I will explain later I reject any evidence or even possibility that this type of event occurred. [112] The study also refers to physical characteristics of pedal positioning in considering why pedal misapplication occurs. The stepover was measured by Senior Constable Jackson (T1-43 Lines 13 to 15) but there was no evidence that the pedal positions and stepover had anything to do with this event. -- 29 of 33 -- 30 [113] What I am prepared to base my findings on is a careful analysis of the CCTV and City Safe footage, the oral testimony at the hearing, and the various recorded versions of the defendant, together with the admissions. [114] Mr Selby’s versions to various people are at best reconstructions of events that happened in a matter of seconds. They are not an actual memory. They are not reliable and are misleading when compared against the other evidence. I reject them as an explanation of what happened or what could have possibly happened for the reasons below. [115] Dealing with what he said to police at the hospital regarding how he directed the bus into the building. That is not consistent with the CCTV. He didn’t make any great turn harder to the left when he supposedly couldn’t get the bus to stop. He was already turned to the left. Further, I reject that he in effect was going to use the building as an arrestor for the bus. The clear footage shows him trying to steer the bus to the right as he approaches the building. That makes sense for a person trying to get the bus into the bus lane. Unfortunately, in the circumstances that manoeuvre didn’t achieve the desired result. [116] His various versions of foot placement and pedal application or lack thereof must also be rejected. In the first instance his explanation moves from: a. his “foot slipped and missed break pedal” (version at the scene); b. to “went to slow the bus down because all the traffic was stopped”….then indistinct…then ”my foot slipped off the brake or I missed the braking”(version to Senior Constable Salau ); c. then “has attempted to hit the brakes due to a line of cars in front of him. Unfortunately Lindsay thinking that his foot got stuck on the column of the steering wheel and he was unable to press the brakes so instead of hitting the line of cars in front of him” (version at the Emergency Department); d. to he thinks that his shoe got stuck on the aceelerating paddle, he was unable to press the brake and was instead aceelerating (version to the social worker at the hospital that night); -- 30 of 33 -- 31 e. to finally a version to Senior Constable Jackson later that night “I was in a situation where I was applying the brake, apparently wasn’t, my foot had gone further to the left and must have caught on the padding that’s on the steering column. I missed the brake totally and the bus was speeding up” and “I just think the tread of my shoe was on that padded sleeve that goes round the steering column. I thought I had me foot on the brake and the bus wasn’t slowing down it was going faster and I had to make a decision on the spot what I was going to do” [117] The various versions include his first version of foot slipped and missed the brake pedal is a very different proposition to a belief that his foot was on the brake pedal. The next proposition is that his foot slipped off the brake which would mean that he had it on the brake at some point before it slipped off. The next version at the Emergency Department would have had his foot well over to the left and on the column and that is contrasted with the version that he had his foot on the accelerator over on the right. [118] At best Mr Selby is having a guess as to where his feet were or he is not being truthful. [119] The second reason I reject the hypothesis put forward by the defendant is that none of the police officers had any issue using the brake pedal. Moreover, I accept that it would have required an awkward movement to get his foot well over to the left to be placed on the steering column or its surrounds. But even if his foot was on the cover of the steering column he still could have been engaging the brake pedal as was demonstrated by Senior Constable Tompkins. No were no obstructions nor any impediments related to the pedals and their surrounds that would have prevented Mr Selby from engaging the brake pedal if he wanted to. Further, a driver would know whether he was depressing a pedal or not. There was resistance in this brake pedal. In the absence of feeling that resistance why would anybody think their foot was on the brake. [120] The third reason I reject the defence case is that if Mr Selby was braking, as he says he was, or thought that he was braking, he as a reasonably prudent driver, would have -- 31 of 33 -- 32 had to been engaging the brakes in some way through the turn from the top of the hill and whilst traveling down Edward Street. Had he been trying to do this but felt the bus wasn’t slowing then I would have expected a reaction consistent with this earlier on. Not at the last second. His demeanour only changes to panic after he, in my opinion, works out that he has cars banked up in front of him. Cars that I believe he didn’t observe or appreciate properly until the last few moments. This ties in with my assessment of whether he was keeping a proper lookout and therefore paying sufficient attention to the location and movement of other vehicles. [121] As I have observed elsewhere, Mr Selby appears to be looking forward through the windscreen of the bus as he drove. This does not mean that he was being observant. Human experience tells us that we can be looking in the direction of something and yet not see what is right in front of us. A reasonably prudent driver of the bus would have needed to observe the movements of the black SUV from one lane to another, anticipate those movements as reasonable in heavy traffic and driven in a way that would have allowed the bus to stop if required as these vehicles moved around. A prudent driver would have had his foot on the brake easing down the hill in heavy traffic. A reasonably prudent driver having seen the black SUV with its brake lights on would have had plenty of time to stop safely or at worst perform an emergency stop. The admissions outline that there was time to brake. Mr Selby’s last moment bracing and reaction was because he hadn’t seen what was in front of him because he wasn’t paying sufficient attention. [122] Having ruled out the defendant’s explanation as reliable or even acceptable for a possible explanation of the event I don’t need to consider the arguments regarding s.23(1)(a) or s24 of the Criminal Code. They are not raised on any other evidence. So that leaves me with the other evidence and admissions that I have analysed and accepted. The admissions, the police investigations, the CitySafe cameras and bus CCTV provide a reliable basis for any findings. [123] What I accept is that at the time of this crash there were no mechanical issues with the bus. Everything worked as it should including the brakes and brake lights. The traffic was heavy but otherwise the road conditions didn’t play any part in the crash. Mr Selby didn’t have any medical issues that played a part in his driving. He brought -- 32 of 33 -- 33 the bus to a stop on Ann Street, got a green light and waited to move off. He must have applied the accelerator to move the bus from a stationary position. He likely had the heel of his right foot in about the wear mark of the floor of the bus. This would have been the natural position. He commenced his turn in a relaxed demeanour. He was looking in the direction in front of the bus. The bus made its turn into the second from the right lane in what seems to be an unremarkable turning manoeuvre. [124] The bus at this point was heading downhill. Traffic was banked up in front of the bus. The SUV moved across from the second from the left lane to the second from the right lane and ended up in front of the bus. There was a reaction of Mr Selby. He braced and a sound is heard. The reaction coincided with the SUV movement to be in front of the bus. He musn’t have appreciated that this was going to happen. He was confronted about what to do. He didn’t brake because he made a choice not to brake in the circumstances. His instant choice, which I say was just a matter of poor decision making rather than anything thought through with endless time, was in my view, to steer around the banked traffic at a relatively low speed and endeavour to get over to the empty bus lane. He was not trying to put the bus into the building to stop it. My observations and analysis of the footage of the steering movements from within the driver’s cab fortify me in this view. [125] This is the only rational and reasonable explanation for this terrible incident. A driver who made a very poor decision at the last moment to avoid the banked up traffic. He got into this situation not because he was presented with an unexpected hazard but because he failed to pay sufficient attention to the other traffic, particularly the black SUV, and he failed to apply the brakes to come to a safe stop behind the traffic in Edward Street. He had the ability to do both. His driving fell below the standard of care that one would expect of a reasonably prudent driver in the like, or similar circumstances. [126] As the other elements are not in contention it leaves me being satisfied beyond reasonable doubt that Mr Selby did drive without due care and attention. I find the charge proven and Mr Selby guilty of the offence charged. [127] I will hear the parties on sentence. -- 33 of 33 --