NSW taxpayers are expected to foot a hefty legal bill for two men acquitted of manslaughter over a fatal bus crash at Kangaroo Valley in 2010 after a Wollongong judge ruled the pair should never have been charged.
Bringelly bus company operator Simon Lees and Narellan heavy vehicle inspector Stuart Lewry were cleared of criminal responsibility for the crash in April this year following a four-week, judge-alone trial in Wollongong District Court.
The pair had been accused of manslaughter by gross criminal negligence after the brakes on one of the Lees' family coaches failed on a hairpin bend above Kangaroo Valley on the evening of May 14, 2010.
The vehicle crashed through a guard rail and careered down a six metre embankment. Simon Lees' father, Graham Lees, was ejected from the driver's seat and killed in the crash. Another passenger was seriously injured.
Prosecutors alleged at trial that Simon Lees was the company's manager at the time and had responsibility for maintaining its fleet of vehicles. It was alleged he knew the coach had faulty brake and was unroadworthy but allowed the vehicle to be driven that day.
However, Judge Andrew Haesler said prosecutors could not exclude the possibility that Graham Lees' own actions led to his death. He found that the older Lees had retained a managerial role in the company and there was a "reasonable possibility" he was aware of the problems with the brakes on the day of the fatal crash and decided to drive the bus anyway.
Lewry, meanwhile, was charged over allegations he signed off on a RTA defect notice just days before the crash, without having physically inspected the vehicle.
In clearing Lewry, Judge Haesler found prosecutors could not prove beyond reasonable doubt that he didn't inspect the coach, but said even if he did, he was only obliged at law to make sure the rear brakes were balanced - as per the details of the defect notice.
Following their acquittals, both men subsequently applied for the State to pay their legal bills, claiming they had been wrongfully charged.
Judge Haesler on Friday agreed the pair should never have been tried, saying there were significant deficiencies and holes in the prosecution case that should have been more carefully considered before proceedings began.
"If the prosecution had, before the proceedings were instituted, been in possession of evidence of all the relevant facts, it would not have been reasonable to institute the proceedings," Judge Haesler found.
He awarded the two men a "certificate of costs", meaning they can apply to the NSW Attorney General's Department to have their legal fees covered by taxpayers.
While the exact figure is yet to be determined, leading Wollongong solicitor Matthew Ward said lengthy trials involving multiple co-accused and the use of solicitors, barristers and expert witnesses inevitably drove the price up.
"Trials of this nature are complex - there's a significant amount of work done both by the solicitor and barrister before and during the trial, including court attendances, pre-trial reading and preparation, meetings with clients and potential defence witnesses," he said.
"To privately fund matters of this type if the accused is not eligible for a Legal Aid grant, is extremely expensive.
"In terms of ball-park figures, I would estimate the legal costs here to be in the hundreds of thousands per accused."
Mr Ward said while the department can refuse and application if they believe payment in not justified, it was rare for them to do so.