Gentner v Callaghan
[2014] QDC 123
•30 May 2014
DISTRICT COURT OF QUEENSLAND
CITATION:
Gentner v Callaghan & Ors [2014] QDC 123
PARTIES:
NEALE KELSON GENTNER
Applicant
v
CORONER B CALLAGHAN
First Respondent
and
DRILLSURE PTY LTD
Second Respondent
and
GOLDER ASSOCIATES PTY LTD
Third Respondent
and
GARRY JAMES CHURCH
Fourth Respondent
and
MICHAEL JAMES MILEY
Fifth Respondent
and
ATTORNEY-GENERAL (Qld)
Amicus Curiae
FILE NO/S:
D203/2011
DIVISION:
Civil
PROCEEDING:
Application
ORIGINATING COURT:
Maroochydore District Court
DELIVERED ON:
30 May 2014
DELIVERED AT:
Maroochydore
HEARING DATE:
5-7 November 2012
JUDGE:
Long SC DCJ
ORDER:
1. The application is dismissed.
2. The parties will be heard as to the formal orders and any incidental issues.CATCHWORDS:
CORONERS – THE CORONER AND THE CORONER'S COURT – APPLICATION TO SET ASIDE CORONER’S FINDING – where Coroner made a finding that the cause of death was the deceased losing control of his motorcycle and travelled into the path of an oncoming vehicle but did not directly identify how and why such loss of control occurred – where applicant seeks to have the finding set aside upon the basis of the absence of a particular finding as to a contributing factor, in the nature of suggested debris left on the roadway after adjacent drilling operations – whether Coroner’s finding could not be reasonably supported by the evidence – whether new evidence casts doubt on the finding.
CORONERS – THE CORONER AND THE CORONER'S COURT – APPLICATION TO SET ASIDE CORONER’S FINDING – interpretation of s 50(5) Coroners Act 2003 - where applicant seeks to have the finding set aside upon the basis that new evidence casts doubt on the finding – what constitutes “new evidence” under s 50(5)(a) of the Coroners Act - whether there is any such evidence “which casts doubt on the finding” – what constitutes “the evidence” under 50(5)(d) - whether new evidence casts doubt on the finding – whether evidence excluded or not considered at the inquest forms part of “the evidence” for the purposes of s 50(5)(d) and/or may be considered as ‘new evidence” for the purposes of s 50(5)(a).
Coroners Act 2003, s 11, s 13, s 14, s 15, s 16, s 17, s 27, s 30, s 34, s 35, s 36, s37, s 45, s 46, s 50, s 64(2)
Evidence Act 1977, s 66
Justices Act 1886, s 222, s 223Annetts v Mc Cann (1990) 170 CLR 596
Antoun v R [2006] HCA 2
Briginshaw v Briginshaw (1938) 60 CLR 336.
British American Tobacco Australia Services Limited v Laurie (2011) 242 CLR 283
Eastman v R [2000] HCA 29
Gallagher v The Queen (1986) 160 CLR 392
Gentner & Barnes [2009] QDC 307
Helton v Allen (1940) 63 CLR 691
Hurley v Clements [2010] 1 Qd R 215
Lawless v The Queen (1979) 142 CLR 659
Mickelberg v The Queen (1989) 167 CLR 259
Neat Holdings Pty Ltd v KarajanHoldings Pty Ltd (1992) 67 ALJR 170
Ratten v The Queen (1974) 131 CLR 510
Re Doogan; Ex parte Lucas-Smith (2005) 193 FLR 239
Rejfek v McElroy (1965) 112 CLR 517
Re Inquest Into The Death of Romuald Todd Zak; Ex parte Zak [2006] WASC 186
Re State Coroner; Ex parte the Minister for Health (2009) 38 WAR 553
R v Condren; ex parte A-G (Qld) [1991] 1 Qd R 574
R v Katsidis; ex parte A-G (Qld) [2005] QCA 229
R v Main; ex parte A-G (Qld) (1999) 105 A Crim R 412
R v Spina [2012] QCA 179
R v VI [2013] QCA 218.
R v Young (No 2) [1969] Qd R 566
Veitch v The State Coroner [2008] WASC 187
Walter Mining Pty Ltd v Hennessey [2010] 1 Qd R 593.White v Commissioner of Police [2014] QCA 121
COUNSEL:
Mr S.T Courtney for the applicant
No appearance by the first respondent
Mr M. McAuley for the second respondent
Mr A. Lindeman for the third respondent
Mr P.J Byrne solicitor for the fourth and fifth respondent
Mr S.McLeod for the Attorney General as amicus curiae
SOLICITORS:
Butler McDermott Lawyers for the applicant
No appearance by the first respondent
King Tobin Lawyers for the second respondent
Dent Consulting and Legal for the third respondent
Slater and Gordon Lawyers for the fourth and fifth respondent
Crown Law for the Attorney General as amicus curiae
Introduction
By originating application filed in this Court on 16 September 2011, the applicant relevantly seeks orders that:
“1.Pursuant to Sections 50 (1) and 50 (7) of the Coroners Act 2003:
(a)The findings of Coroner Callaghan in relation to the death of Adrian Elliott Jones delivered on 24 August 2011 at Maroochydore be set aside;
(b)The State Coroner direct another Coroner to hold a new inquest.”
The findings of the first respondent[1] that are put in issue, relate to an Inquest conducted into the death of Adrian Elliott Jones (the applicant’s stepson - “the deceased”). In broad terms, it is not contentious that the deceased died from injuries suffered when he lost control of his motorcycle, on the Yandina Bli Bli Road, at about 8.00am on 8 April 2006, with the result that he came into contact with a vehicle travelling in the opposite direction.
[1]Who, in accordance with accepted convention, took no active part in this matter
By way of appropriately setting out some context for this application I will incorporate and repeat from some reasons published to the parties on 24 August 2012 and in relation to some orders made on an interlocutory application in this matter and dealing with the intention of the applicant, as that had emerged in the filed materials, to seek to rely on “new evidence” under s 50(5)(a) of the Coroners Act.
The applicant was one of a number of parties given leave to appear at the Inquest and the primary issue which had been agitated by the applicant, was the prospect of debris being left on the roadway by drilling operations that had been conducted there, shortly before the accident (pursuant to the combined efforts of the second and third respondents) and that this debris contributed to the deceased, losing control of his motorcycle.
In fact, the Inquest was only held as a result of this issue being identified as the focus of a successful application made, by the applicant, to this Court and for an order pursuant to s 30 of the Coroners Act, that the Inquest be held.[2]
[2]See Gentner v Barnes [2009] QDC 307, at [40]- [52] and [61]- [68]
The originating application is directed, in the first instance, to the power provided to this court in s 50(5) of the Coroners Act as follows:
“(5) The District Court may set aside a finding if satisfied that –
(a) new evidence casts doubt on the finding; or
(b) the finding was not correctly recorded; or
(c) there was no evidence to support the finding; or
(d)the finding could not be reasonably supported by the evidence.”
Here the finding in issue is that relating to the exercise of the Coroner’s function of making findings pursuant to s 45(2)(b) and (e) of the Coroners Act and which requires:
“(2) A Coroner who is investigating a death or suspected death must, if possible, find—
…
(b) how the person died; and
…
(e) what caused the person to die.”
The Coroner’s findings, in this case, were not stated in any strictly separate or formal manner and are to be gleaned from the written reasons published on 24 August 2011 and entitled “Findings of Inquest”. First, it is convenient to go to the following paragraphs in that document:
“Conclusion:
87.Given all of the evidence I am of the view that the accident was caused by the deceased losing control of his motorcycle such as he travelled into the path of the vehicle driven by Michael Miley Senior.
88.There is no evidence that the deceased was travelling in excess of the 80 kilometres limit. In fact there is no evidence of what speed the deceased was travelling at. The Yandina Bli Bli Road is a narrow country road with a shoulder that is unsealed. Debris from Burtons Road is tracked onto the Yandina Bli Bli Road. The deceased at the time of the accident was approaching the intersection of Burtons Road with the Yandina Bli Bli Road around a bend.
89. The deceased, an inexperienced rider of motorcycles of the size that he was riding on this day, lost control of his motorcycle and travelled over into the path of Michael Miley Senior.”
It can be noted that the statements as to the deceased losing control of his motorcycle and travelling into the path of an oncoming vehicle are, to an extent, statements of conclusion or result, in that they beg the questions as to how and why such loss of control occurred. It is in that way that the issue critically raised by the applicant is to be viewed as a potential cause or contribution to these events and therefore to the death.
It may also be the implication from the passage taken from the Coroner’s reasons and set out above, that she found that the inexperience of the deceased as a rider of the size of motorcycle he was riding and the possibility of debris on the road as tracked from Burtons Road, were contributing factors or causes of the death, but this is far from clear. However and apart from excluding any evidence of any responsibility of the driver of the other vehicle[3], no other potential contributing factors or causes are expressly excluded.
[3]See Findings of Inquest at [75]
Accordingly, reference to an earlier passage in the findings document, is required in order to understand how the issue agitated by the applicant and the reason identified in Gentner & Barnes[4] for holding the Inquest, was dealt with:
“[76]Both Golder Associates and Drillsure owed a duty of care to road users to conduct their work in as safe a manner as the exercise of reasonable care could make it.
[77]Michael Dobe, Peter Hooper and Anthony Steensen all gave evidence that at the conclusion of the drilling on the day prior to the accident a cleanup had occurred. I found all of these three witnesses to be credible witnesses and I accept that a cleanup did occur at the conclusion of drilling on 7 April 2006.
[78]Any evidence before this inquest that debris had been on the road as a result of the drilling was a result of comments made by the Jakemans to other people in the area namely Caleb Fitzpatrick and to the private investigator employed by the family of the deceased. I am of the opinion that the Jakemans’s conversation contaminated the evidence of Caleb Fitzpatrick. Mr Jakeman completely resiled from his comments with regard to debris on the road in the witness box and apologised for making those statements. I found at the time of her giving evidence Ms Jakeman’s evidence to be unreliable. It is unfortunate (perhaps an understatement) that the Jakemans involved themselves in the investigation of this death because that has clearly caused distress to a number of people.
[79]There is no evidence that could be relied upon to establish that there was any debris left on the road as a result of the drilling that may have caused this accident. In fact I accept that the roadway in the vicinity of the intersection of Burtons Road was left cleaner after the drilling than it was before in light of Mr Steensen’s evidence of sweeping the gravel off the road which had been tracked across the intersection from Burtons Road.”
[4][2009] QDC 307
The Present Application
The applicant seeks to also have the finding as to what caused the death set aside upon the basis that the finding (in that it excluded the presence of debris on the roadway from the drilling operations as a contributing or causative factor) could not be reasonably supported by the evidence and also on the alternative claim that new evidence casts doubt on that finding.[5]
[5]The applicant also seeks to raise a complaint as to apprehended bias of the Coroner but as it is understood, accepts that can only be relevant, if at all, to one or other of the bases upon which he seeks that the finding is set aside pursuant to s 50(5) of the Coroners Act. This is further considered, below.
In respect of that alternative claim, it is convenient to refer to the outline of submissions filed for the applicant in accordance with the direction given on 18 November 2011, where it is contended that:
“there were sources of evidence that were ‘relevant to and logically probative of the matters within the scope of the coronial enquiry’ but which Her Honour declined to have placed before the inquest.”
First there is reference made to what is described as the lengthy and wide ranging affidavit made by the applicant on 16 June 2009. It is submitted only that:
“the Coroner could have and should have been assisted at least by Mr Gentner’s recollections of his dealings with the Jakemans and Mr Church on 1 May 2006. In particular:
90.1. Mr Jakeman’s comments about the debris from the drilling.
90.2. Ms Jakeman’s comments about debris from the drilling.90.3.The existence of a photograph showing dirt protruding from a parked vehicle
90.4.The emergence of Mr Fitzpatrick as a witness.”
It can be seen that the references to the evidence of Mr and Ms Jakeman and Mr Fitzpatrick bear relationship to paragraph [78] of the Coroner’s reasons and are directed at evidence indicative of the presence of debris on the roadway. Essentially the contention is that the Coroner should have had regard to the evidence of the applicant’s dealings with these witnesses and accordingly, early statements that were made to him indicating observation of debris on the relevant section of roadway. An aspect of Ms Jakeman’s evidence was that she had seen a photograph of a police vehicle parked in a position where she had observed debris spilling from underneath it.[6] However no such photograph was ever positively identified at the Inquest. The Coroner dealt with this issue as follows:
“[59]Church took a number of photographs on the day of the accident and these are before the inquest in Exhibit 17. Church’s evidence was that he did not see any debris or other obstruction on the road that could have caused the accident.
[60]Church was questioned about a missing photograph and in particular whether he showed Mr Gentner a photograph which had shown a police vehicle parked in the vicinity of bore hole 5. Church identified photograph 8 of Exhibit 17 as being this photograph taken at the scene of the accident and showing a scenes of crime unmarked police vehicle in the vicinity of bore hole 5. Church could not say whether or not that vehicle was there when he conducted his visual inspection of the roadway.”
[6]The applicant proffers his own evidence and that of Mr Barr in support of a contention of the existence of such photographic evidence
The evidence which could have been admitted from Mr Gentner is identified as follows and firstly in relation to Mr Gentner’s attendance at the scene of the accident with Senior Constable Church, on 1 May 2006:
“40.Senior Constable Church then interpreted the scene to me and stated that the pink paint marks were made by him and the pink colour was less visible and did not last as long and that the police preferred yellow paint but the colour change was brought about by the recent spate of collisions at Federal. We further discussed our interpretations of the physical evidence and possible scenarios of events. It was during these discussions that a man with a small child on his hip approached us from the east and introduced himself as Adam Jakeman and he asked if we were discussing the recent fatality and offered his recollection of evens [sic] relating to Adrian’s accident.
41.He said that he believed that Adrian had been travelling at a low or moderate speed as indicated by the sound of the motorcycle reflected by the road cutting towards the Jakeman dwelling. He said words to the effect that he had heard countless vehicles pass through the cutting and he was able to determine that Adrian was not travelling fast. He said that the motorcycle was down on its side at or near the middle of the southern left hand kerb and subsequently slid on the north bound lane of the road for some distance before crossing the double white centre lines into the south bound lane. He stated that the scrape marks demonstrating this were clearly evident for sometime afterwards but had since been mostly erased by traffic.
42.Adam Jakeman said that the cause of Adrian’s initial loss of control was mud or dirt on the roadway at the crest area of the left hand kerb and that this mud or dirt on the roadway had been caused by workmen doing soil test drilling on the road verge on the afternoon of Friday, 7 April 2006.
43.Adam Jakeman stated that attempts had been made to clean off the mud or dirt from the roadway but that on the morning of 8 April, immediately after the accident the muddy area was still wet. He stated that workmen had been back drilling in that area since 8 April 2006 and he also stated that he believed other neighbours on the western (inland and high) side of the cutting actually witnessed the accident.
44.Adam Jakeman was then joined by his wife who was introduced as Tabatha. She also offered her recollection of events of 8 April 2006.
45.She stated that the four wheel drive and Adrian’s motorcycle were the only vehicles at the scene until a young man stopped and the young man gave Adrian first aid and then directed traffic until relieved by police. She also stated that this young man had returned to the scene later on a black motorcycle and had spoken to Tabatha and told her that on the afternoon of 8 April 2006 he had tried to get information regarding Adrian from the Nambour Hospital but none was released.
46.Tabatha also stated that another nearby neighbour, Mr Terry Sadler, had listened to Adrian’s motorcycle as he came down Camp Flat Road and along the Yandina Bli Bli Road past Terry’s house and up the hill into the cutting where the sound of the motorcycle suddenly stopped. She also said that Terry Sadler was of the opinion that Adrian’s motorcycle was not travelling at excessive speed from the sound of it.
47.Tabatha stated that she had called Sadler on his mobile while we were all there at the scene and that he was in Adelaide when he answered. Sadler did not want to get involved. Tabatha again stated that there was no vehicle following the four wheel drive at the time of the collision. She also said that she disagreed with her husband regarding the neighbours on the high side of the cutting being actual ‘eye witnesses’ to the actual impact.
…..
50.While still at the scene I remember that Constable Church went to his police AIS Station Wagon and returned with a packet containing crash scene images from 8 April 2006. He showed these to myself and Tabatha Jakeman. In at least one of Senior Constable Church’s images a large area of what appeared to be mud or dirt on the surface of the asphalt roadway was clearly visible. The image showed the mud/dirt was emerging from beneath the front of a parked white car. It was clear from the image that the mud/dirt was in the immediate vicinity of the location of the drill hole which Senior Constable Church and I had just described to us by the Jakemans.
……
66.On 4 May 2006 Caleb Fitzpatrick telephoned in response to our private advertising and spoke with me. He said that he was the person we were seeking as a result of our advertisement.
67.On 5 May 2006 I telephoned Senior Constable Church at Coolum AIS but he was not available.
68.On Friday, 5 May 2006 in the evening Caleb Fitzpatrick came to our house at 6:00 pm. He told us what he saw and did at the scene on the morning of 8 April 2006. He said that on that morning he was driving alone along Yandina Bli Bli Road from Yandina to his work at Caloundra. He was following another person who was driving a late model small black car.
69.He said that as both vehicles approached the vicinity of Burtons Road he noticed people standing on the roadway, a white vehicle and what appeared at first to be child lying on the roadway. He stated that he and the black car pulled off the road, stopped and both drivers alighted simultaneously.
70.He said that the driver of the black car was a young woman in her early twenties with short dark hair and of solid build.
71.He stated that there was a woman standing beside a motorcyclist who was lying on the roadway and she was on her mobile phone. He stated that he looked at the white vehicle, noticed the motorcycle underneath it and a man standing next to the vehicle who was also holding a mobile phone.
72.Fitzpatrick believed the time was about 7:50 am and that Adrian was on his back with his head pointing approximately in the direction of Yandina, on the eastern side of the road towards the centre lines, several metres behind the four wheel drive.
73.Fitzpatrick stated that he had first aid training and went straight to Adrian. He also said that the woman standing near Adrian was talking on her phone to the ambulance, and was having trouble with the signal.
74.Fitzpatrick stated that he established eye contact with Adrian and noticed that when the woman repeated questions and instructions from the ambulance officer on the phone Adrian responded immediately and was seen to move a foot and wiggle his toes after the woman mentioned them.
75.Fitzpatrick stated that he determined that Adrian was conscious but unable to speak, was breathing and responsive. Fitzpatrick collected a towel from his vehicle and used it and someone else’s towel to cover Adrian. He also said he noticed Adrian’s boots and gloves were off but were close by on the road.
76.He also said it was fairly obvious that Adrian had at least one broken leg and there was very little bleeding and that Adrian’s clothing and helmet had sustained very little damage.
77.He also said that another man who had stopped at the scene also joined the group at Adrian’s side.
78.After Fitzpatrick had done all he could for Adrian he left and walked over to the four wheel drive. He saw a young girl on the back seat of the four wheel drive. He saw a part of the motorcycle protruding from beneath the four wheel drive. He asked the person standing next to the four wheel drive what had happened and this man said ‘you came around the corner and he lost it and we tried to swerve off the road to miss him and there was nothing we could do – there wasn’t enough time and it was too late’.
79.Fitzpatrick stated that he then moved south towards Kirra Road and proceeded to warn approaching traffic of the accident ahead.
80.He said that at approximately 10 minutes after he had himself arrived on the scene a man driving a utility with a small boy as passenger arrived near the scene from the direction of Bli Bli. He told the driver of the utility that he could not proceed because of an accident so the driver parked the utility at the side of the road, told the boy to stay with the vehicle and the driver then ran up the hill towards the scene of the accident. He later saw this same man wearing a Police high visibility coat and said that this man appeared to be working with the on-duty police officers who had arrived at the scene after this man who was now believed to be Senior Sergeant Michael Miley who is the son of the alleged driver of the collision four wheel drive KIL-01.
81.Fitzpatrick also said that no Police officers asked him for any information or his name and he said that he left the scene after a time and went to work.”[7]
[7]Exhibit NKG1 to the affidavit of the applicant sworn and filed 22 December 2011
Subsequently and in the course of hearing this application[8], the applicant sought to also rely on an additional aspect as dealt with in his affidavit filed in this application which dealt with photographs that had been taken of a drilling machine to demonstrate dirt adhering to the tracks of the machine. It was dealt with in the applicant’s affidavit, as follows:
“17. On 7 May 2007 in an unfenced vacant allotment adjacent to the residence of drilled Dobe photographs were taken of a rubber tracked drilling rig on its transport truck. The rubber tracks of the drill rig appear to be heavily contaminated with mud/clay (see District Court, Gentner v. Barnes, Gentner exhibits CC561, drilling rig pics 003, Drillsure, cab & registration of Drillsure truck; CC 562 drilling rig pics 004, Drillsure, left side view of tracked rig loaded on back of truck; CC563 drilling rig pics 005, Drillsure, clay like mud adhering to left side rubber crawler track of rig. These were supplied to the CMC Margaret Patane on 11 July 2007, Coroner KO Taylor on1 6 (sic) July 2007, proceedings before His Honour Judge Robertson on 17 February 2009; Michael Barnes on 11 March 2009 (within documents served) and supplied directly to Coroner’s assisting Counsel Toby Neilsen on1 6 (sic) April 2010 (within copies of District Court Material). This was subsequently excluded from Coroner Callaghan 2006/13 inquest into Adrian Jones’ death. Exhibited hereto and marked “NKG-7 is a copy of the photographs taken by me”
[8]See AT 2-38 l 20 and AT 2-71 l 55 and AT 3-59 ll 15-45
It should be noted that on this application, counsel for the applicant conceded that whilst the affidavit of Mr Gentner, as presented to the Coroner, contained a considerably wider ambit of material[9], it was not pressed that any of the remaining material should have been admitted and that it could not be pointed out where the more limited material, now pressed as relevant and admissible, was separately brought to the attention of the coroner. Counsel frankly conceded that it was likely to have been lost in the sheer bulk of the accompanying material.
[9]It extended over 18 pages and 141 paragraphs and a total of 143 pages, including Exhibits.
As will become evident, the most significant aspect of this additional material, is that contained in paragraph 50, in respect of the reference to a photograph viewed at the scene on 1 May 2006.
In further support of the existence of some unproduced photographic evidence, supporting the contention of relevant debris being found on the roadway, the applicant seeks to rely on a statutory declaration made by a lawyer, Mr Barr. The submission proceeds:
“[96]Clearly the central issue at the Inquest was whether dirt had been left on the road by the drilling. An associated issue was whether ever existed a photograph of a police car parked in the area of BH5 with dirt protruding from underneath.
[97]At the pre-inquest conference I raised the evidence of Geoffrey Barr, a then solicitor employed by my instructor. Mr Barr provided a statutory declaration swearing to a conversation that he had with Mr Church in which Mr Church told him that there was material on the road in the area of where the incident occurred but that it was not captured in a photograph because a police car was parked over it. Her Honour ruled that the evidence was a ‘bit far removed’.
[98]At the inquest I cross-examined Mr Church on the issue. When I put the conversation to Mr Church he said he could not recall it but stated ‘If that’s what Mr Barr says I’ve said, well, who am I to argue with it?’
[99]I submit in the circumstances it was appropriate for the Coroner to call Mr Barr or at least have accepted into evidence his statutory declaration.”
In the statutory declaration, made on 30 May 2007 by Mr Barr, he deposed to having a conversation with Senior Constable Church on 30 June 2006 and in relation to his investigation of the death of Adrian Jones, on 8 April 2006. At that time, Mr Barr was employed as a solicitor by the applicant’s solicitors. For present purposes the critical aspect is as follows:
“7.Church told me that the investigation brought to light the fact that there were people working on the road before the accident. He can see that there was loose material on the road. Unfortunately that seems to have happened right where the police car was parked. He told me that as a result there were no photographs of the material or the work that had been performed, due to the position of the police vehicle at the accident scene. Whilst I do not recall the words he used, Church expressed a degree of embarrassment at the fact that he had parked the police vehicle over the area where the work was performed.”[10]
[10]See Exhibit NKG2 to the affidavit of the applicant, sworn on 22/12/11, at p 144 of the bundle.
That statutory declaration was referred to and dealt with in the following way at the pre-inquest conference held on 6 August 2010 (noting that Mr Nielsen appeared as counsel assisting the coroner):
“MR NIELSEN: Now, your Honour, in respect to the next witness, Geoffrey Barr, essentially his evidence relates to a conversation that he had with Senior Constable Church. My submission is that Mr Church can be cross-examined about that matter and----
CORONER: Yes, this is a bit far removed, isn’t it?
MR NIELSEN: I believe so, your Honour.
CORONER: He had a conversation with Mr Church.
MR NIELSEN: I mean, my submission would be that your Honour not allow it at this point but after Senior Constable Church has been cross-examined----
CORONER: Church’s evidence we’ll see what happens.
MR NIELSEN: ----then a further submission can be put up about that.
CORONER: Yes, right.”[11]
[11]See T1-11 – T1-12 Exhibit PGB3 to the affidavit of the applicant’s solicitor, sworn on 2 November 2011 and filed on 3 November 2011.
The relevant passage in the cross-examination of Mr Church by counsel for the applicant at the Inquest begins in the context of questioning in respect of Mr Church’s interactions with the applicant and the Jakemans, at the scene of the accident on 1 May 2006 and proceeds as follows:
“Do you recall the Jakemans, one or both, going further than just saying that there was perhaps debris on the road left from the drilling, the Jakemans on 1 May 2006 expressed the view to you that the debris on the road was the cause of the traffic accident, do you recall that occurring?-- Said it may have been the cause.
In that – the Jakemans?-- Yeah.
Do you recall later going to your police vehicle and producing some photographs?-- Yeah, I think I did.
Do you recall Tabitha Jakeman, in particular, pointing to a photograph that you had and saying words to the effect of, ‘That car’s parked over where I saw the debris or mud or dirt’ or whatever word she may have used?-- Possible. I know their car has been the subject of questioning on – that’s probably what she did say. I can’t recall that. I’d only be guessing there.
On that issue, do you recall sometime later having a conversation with a solicitor from the firm Butler, McDermott and Egan, Geoffrey Barr? Do you know Mr Barr?-- No.
Just excuse me. I put to you that on the 30th of June 2006 he telephoned you to inquire about the progress of the investigation, does that ring a bell, Geoffrey Barr works with Peter Boyce?-- I do remember a solicitor ringing me, yes.
Do you recall telling Mr Barr that the investigation had brought to light that there were people working on the road before the accident?-- Possibly.
Do you recall telling Mr Barr that, unfortunately, a police car seemed to have been parked right where the drilling had been occurring?-- That’s possible.
And do you recall telling Mr Barr that you could see that there was loose material on the road?-- And that would have been on an assumption from a photograph.
Well, I’ll put this in context, I want to be clear on this. So you do recall – if you don’t, tell me – saying that your investigations had brought to light that people were working on the road before the incident? Do you recall saying that to Mr Barr?-- No, I don’t actually.
Okay. Do you recall saying that you could see or you can see that there was loose material on the road?—No, I can’t. If that’s what Mr Barr says I’ve said, well, who am I to argue with it?
Well, I’ll cut to the quick. I’m putting to you that you told Mr Barr on 30 June 2006 that you can see that there was loose material on the road, what do you say?-- Well, that would have been after I was approached by the Jakemans.
Do you recall saying that to Mr Barr, that’s my question though?-- I don’t recall saying that, no.
Do you recall saying to Mr Barr that, unfortunately, that seems to have happened right where the police car was parked?-- Possibly I did say that if Tabitha mentioned about that police car being parked where the dirt was meant to be, I probably did say that.
Do you recall saying to Mr Barr that as a result of where the police car was parked there were no photographs of the material or the work that had been performed due to the position of the police vehicle at the accident scene?-- Possibly.
And do you recall further expressing a bit of embarrassment over that, that the police car had been parked in that spot?-- Well, yes, one would; yes.”[12]
[12]T6-27 l 32 – 6-28 l 48, Exhibit BW-38 to the affidavit of Ms Brigita White sworn on 28 November 2011 and filed on 1 December 2011 at pages 1303-1304.
Then and after the Coroner asked some questions about which photograph was being discussed and some further questions were asked of Mr Church as to some issues that had been raised with him about the provision of photographs to the coroner, the cross-examination continued:
“What I put to you, Mr Church, is that you produced photographs on the 1st of May to the Jakemans and Mr Gentner, do you accept that?-- I believe so, yes.
And in that photograph was a----
CORONER: Are these the photographs----
MR COURTNEY: No.
CORONER: ----these group of 27?
MR COURTNEY: No.
CORONER: Are they before me----
Mr COURTNEY: No----
CORONER: ----the photographs that were produced to the Jakemans?
MR COURTNEY: Well, I don’t know, but I want to ask about the one particular photograph that is not before you.
CORONER: All right. Where are the photographs that you produced to the – Mr Gentner and the Jakemans?-- I can’t recall, your worship. It would obviously be this one in question. If the – if the matter comes to mind that the drill hole or the debris was meant to be under the police car, that’s the only police car that can come to my mind, so it would have been this photograph----
Forget about that. Which photograph did you produce to Mr Gentner and the Jakemans in May when you were – when you went back to the scene. What photographs were they? Could they have been this group of 27 photographs?-- I would assume they would have been the scenes of crime ones and, if I recall rightly, I printed those on a word document, so they were on A4 pages.
MR COURTNEY: Do you have those with you, the A4 pages that you think you might have had with you on 1 May?-- No.
So they wouldn’t have been nice and glossy like we can see prints coming from a photo shop?-- No, no, no.
More directly from a word processor printed onto normal paper?-- No.
You don’t have those?-- No.
Well, again, what I’m putting to you and what I’m putting to you is that one of those images showed a marked police car with dirt protruding from underneath it?-- Well, I can’t recall that at all.
And that marked police car was parked in the vicinity of where we can see the scenes of crime car in Exhibit 17 photograph 8, about the area of the bore holes we’re concerned----”[13]
[13]T6-30 l 1 – 6-31 l 1, Exhibit BW-38 to the affidavit of Ms Brigita White sworn on 28 November 2011 and filed on 1 December 2011 at pages 1306-1307.
There was then an objection and counsel for the applicant asked some further questions of Mr Church about earlier evidence that he was given and then returned to the topic:
“Well, again, I’m putting to you that there was a marked police car parked in the area about where we can see the scenes of crime car in photograph 8 Exhibit 17?-- Yes, there would have been.
I’m putting to you, you captured that by way of photograph?-- Yeah, well, possibly – that’s possibly the case.
And it was that photograph that you showed Mr Gentner and the Jakemans on 1 May 2006?-- That’s possible. I don’t recall, but that’s possible.”[14]
[14]See T6-31 ll 44 – 53, Exhibit BW-38 to the affidavit of Ms Brigita White sworn on 28 November 2011 and filed on 1 December 2011 at page 1307.
Then and after further questions about an issue having been raised about there being a scenes of crime photograph that was missing, Mr Church continued:
“… oh, look, I can’t recall. I know there’s been an issue of a missing photograph at some stage, that’s been an issue all along that I’ve tampered with photographs, which I have totally denied. What I have said to Mr Gentner – and I’ll stand by that right now – I took digital photos at the scene. At the time of taking those digital photos they were for my purposes only, because at that point in time digital photos could not be utilised as evidence in court and that’s what they were. Some of them were a little bit different to what they were originally, because I cut and cropped them for my purposes, but I have not touched up any photographs that would portray anything other than what they show and I’ve taken offence to that.
Well, is there a prospect between 1 May 2006 and today a photograph, for whatever reason, has gone missing, whether it’s misconduct or whether it’s a mistake, just like----?-- If that was the case and they were not all produced to the coroner it would have been because at that stage we didn’t produce all photographs to the coroner. We only produced the one that we felt were necessary for the coroner to look at in our report and since we’ve had a changeover of OIC all photographs now, regardless of what content they may have, are submitted to the coroner.”[15]
[15]T6-32 ll 19-42, Exhibit BW-38 to the affidavit of Ms Brigita White sworn on 28 November 2011 and filed on 1 December 2011 at page 1308.
Then and after some further questions about the possibility of missing photographs, Mr Church said:
“… there is no other photographs other than the photographs that I have produced.
Well, I am putting to you there was at least one, that one I’ve described to you?-- Well, I don’t know. That’s what you’re putting to me. I don’t recall that.”[16]
[16]T6-33 ll 18-23, Exhibit BW-38 to the affidavit of Ms Brigita White sworn on 28 November 2011 and filed on 1 December 2011 at page 1309.
As the applicant relied upon the evidence of Mr Barr, as new evidence and the cogency of that evidence was challenged, he was called and cross-examined on this application. An effect of that cross-examination was to establish that what is recorded in Mr Barr’s statutory declaration, is his attempt at his recollection of his conversation with Mr Church, about 12 months after it occurred and only with the benefit of some brief contemporaneous notes and which relevantly only contained the following notations:
·“He has brought to light the fact that there were people working on the road and can see there was loose material on road.
·Happened right where police car parked.
·Potentially worked carried out by council and possibility under.”
In his evidence, he maintained that:
“… The best of my recollection was that he had attended the scene, that there was some loose material on the road that were subsequent investigations after he left the scene indicated that there may have been something of relevance and the location of that was under the police vehicle as a result of which he hadn’t secured direct evidence at the time he was at the scene by way of photographs. That’s my recollection of the conversation, your Honour.”[17]
[17]T1-24 ll 49-57, Exhibit BW-33 to the affidavit of Ms Brigita White sworn on 28 November 2011 and filed on 1 December 2011 at page 735.
However, there was a photograph produced to the Inquest by an employee of the Third Respondent and as part of a related series of photographs, on the basis that it was taken at the conclusion of the relevant drilling operations, on 7 April 2006 and showing the roadway to be clear of debris. This was marked as Exhibit 3. The Coroner dealt with the issues relating to this photo as follows:
“[48]Peter Hooper is an employee of Golder Associates. He attended the drilling works on 7 April 2006 with Michael Dobe from Drillsure Pty Ltd and Drillsure’s employee Anthony Steensen. Hooper’s report is contained in Exhibit 1 from page 320 onwards. Hooper’s evidence was that because of the type of rock in that location they lost a great deal of water down the hole. Because one needs water to force the debris out of the hole nothing came out and they had to stop drilling. They abandoned the hole. His evidence was that they sealed the hole and swept the road. He could not recall whether it was he who swept the road or the driller. Exhibit 3 is a digital photograph of the drilling works. Hooper’s evidence was that he had taken that photograph at the conclusion of the drilling and could identify from the photograph the white plaster of paris cap on the top of the drill hole just to the left of the steel bucket. Close scrutiny of the photograph does indicate that this is in fact the case. There is no debris on the road near the drill hole. Mr Courtney states that the fact that the person standing next to the drilling machine in Exhibit 3 cannot be identified raises doubt as to when the photograph was taken. This would require there to be a grand conspiracy involving a large number of people including Drillsure and the Men at Work whose truck can be identified in the background going back to the location setting up the drilling rig to take the photo – I cannot accept that. The photo is clear. I can see the plaster cap near the bin and I can see the road is clear of debris.
[49] I found Hooper to be a credible witness.”
Although it seems that there has been some confusion in the applicant’s submissions in reference to another photographic exhibit, admitted and marked as Exhibit 2, at the Inquest, and as it is understood, the applicant had produced, to counsel assisting, a folder of materials which was said to cast doubt on the appearance of both Exhibits 2 and 3, as photos taken late on an April day, due to the location of shadows. Although the Coroner declined to admit the folder of materials, she dealt with Exhibit 2 as follows:
“[51]Later in the proceedings Mr Courtney, pointed out that in one of the photographs there is a shadow which appears to be the silhouette of the person taking the photograph. The drill holes are on the right hand side of the road and therefore the photographer would have been standing facing in a roughly southerly direction. As the sun sets in the west one would therefore not expect to see a shadow of the photographer in the photograph. None of this was specifically put to Mr Dobe but this does question exactly when the photograph was taken. Because of this I will not be relying on Exhibit 2.”
However and as can be discerned from the extract from her reasons as set out above,[18] the Coroner did place considerable weight on Exhibit 3, as evidence tending to exclude the remainder of drilling debris on the road.
[18]See paragraph [25], above.
Further and whilst the outlines of submission of the applicant have suffered from some confusion as between the numbering of Exhibits 2 and 3 and whilst there was particular emphasis placed upon evidence relating to Exhibit 2 in the original submissions, it is also apparent that not only was there issue raised about the probity of Exhibit 3 at the Inquest but this also remained an issue for the originating application made to this Court.[19]
[19]See applicant’s outline of submissions filed 22 December 2011 at [65] and [93] – [94]
In that regard, there is a complaint that at the outset of the fifth and penultimate day of taking evidence at the Inquest, the Coroner refused to admit a folder of materials that were calculated to bring into question the credibility of the evidence given as to the taking of the photographs, admitted as Exhibits 2 and 3. In particular it was sought to challenge the contention that each photograph had been taken at the end of the relevant working day and in that way, providing any support to the evidence of the witnesses Hooper, Steensen and Dobe, to the effect that after the drilling work the critical section of road (adjacent to drilling hole 5) had been swept clean of any debris from the drilling activity.[20]
[20]See T 5-22 – 5-47, Exhibit BW-37 to the affidavit of Ms Brigita White sworn on 28 November 2011 and filed on 1 December 2011 at page 1172 – 1197.
Although the folder contained other materials which in some (presently irrelevant) respects sought to enlarge upon the purported significance of them, both before the Coroner and in this Court, the applicant’s argument focused upon what were described as astronomical certificates. These were sought to be relied upon in order to confirm the position and time of sunset on that day. Bearing in mind that this court is not concerned with any review of the correctness of the Coroner’s ruling, it can be noted that it was recognised that such certificates were admissible pursuant to usual evidentiary principles and specifically s 66 of the Evidence Act 1977. However a concern of the Coroner, particularly adopted from the opposition raised by the second and third respondents, became entertained with considerations of fairness to the witnesses, who had earlier been called and had produced those photographs. Whilst such considerations of fairness were not inappropriate, it was noted that the witness who had produced Exhibit 2, Mr Dobe (but not Mr Hooper who had produced Exhibit 3), had been challenged, by the applicant, to the effect that the photograph did not have the appearance of being taken when he said it was. Further, various ways in which any such concern as to fairness to these witnesses, might have been remedied were also specifically canvassed. In any event, it was not clear as to how the specific information in the astronomical certificates and which was recognised as largely being confirmatory of matters of common experience, could and should have been put to these witnesses.
However, counsel assisting the Coroner eventually and appropriately drew the Coroner’s attention to the essential question, as to what weight could be given to this evidence[21] and the coroner ruled in the following terms:
[21]T 5-46 ll 50-60, Exhibit BW-37 to the affidavit of Ms Brigita White sworn on 28 November 2011 and filed on 1 December 2011 at page 1196.
“CORONER: Yes. I have real difficulties with the certificate, and
for me to be able to give any weight to it, I would have to have called before this inquest and expert in whatever. I don’t even know what the person would have to be an expert in that would actually be able to give me information that would be – I’d be able to use, and even then without actually – even when the expert without actually being at the location on the particular day in question I would still have doubts about what information that they were supplying to the inquest.
This matter – this inquest has been around for a long time. The question of these photographs have been around for a long time. Mr Hooper wasn’t cross-examined as to the truthfulness or otherwise of his statement with regards to the taking of that photograph, which is exhibit 3, at the time.
Mr Dobe was cross-examined, but the questions of shadows and the like were put to Mr Dobe. I have got – I would have real difficulties with all of that. The proposition is inherently unfair. I therefore will not be allowing the certificate to be entered in as an exhibit.”[22]
[22]T 5-47 ll 7-29, Exhibit BW-37 to the affidavit of Ms Brigita White sworn on 28 November 2011 and filed on 1 December 2011 at page 1197.
But the matter did not end there and as has been noted above, obviously conscious of the issue raised in cross-examination of Mr Dobe, the coroner was not prepared to put any weight on Exhibit 2 or the evidence as to when it was taken.
Otherwise and in the course of submissions to the Coroner in support of the admission of the certificates, counsel for the applicant candidly explained that he had consciously decided not to similarly challenge Mr Hooper in respect of Exhibit 3, because of an assessment, at that time, of an insufficient basis to do so. However and whilst the argument that was then developed, was that the certificates now provided that basis, that is far from clear.
The essential difference between Exhibits 2 and 3 and the application of common experience (with or without the aid of the astronomical certificates), is that Exhibit 2 positively disclosed the existence of shadowing that was inconsistent with the purported timing of the photograph, whereas the contention in respect of Exhibit 3 is more as to the absence of shadowing that would be viewed as being consistent with that timing. That is an obviously different proposition and it is far from clear how the certificates were able to assist in that regard, particularly in the absence of assessment of other factors that may have effected the extent of direct sunlight into the photographed location, at the relevant time.
However, the contentions in respect of Exhibit 3, do not end there. The applicant also seeks to include the affidavits of the three traffic controllers, who were engaged to work in connection with the drilling operations conducted on 7 April 2006. Although each of these witnesses gave evidence at the Inquest, it is apparent that the affidavits (each sworn on 29 May 2012) are calculated to provide some additional evidence from them, as to their observations of what is depicted in Exhibit 3 and particularly as to aspects of the inconsistency of that photograph having been taken on 7 April 2006, as was contended to and accepted by the Coroner.
The effect of these affidavits was to confirm that each of the traffic controllers[23], had together comprised the team of traffic controllers, engaged by the third respondent and through their employer, Men at Work, at the site in question, on 7 April 2006. In the case of Mr Blyth and Mr De Graff there was a record of them having worked from 7.30am to 5.00pm (including a half hour lunch break from noon) and in the case of Mr D’Oliveira, from 7.30am to 4.30pm. That is consistent with Mr Blyth and Mr De Graff only, remaining to collect and pack up signage, after operations had been completed and the roadway cleared of machinery.
[23]Glenn Regional Blyth, Allen John De Graff and Geid Salveria D’Oliveira.
Essentially what was relied upon, as additional evidence to that given by each of them at the Inquest and therefore as new evidence, was their observations as to what is depicted in Exhibit 3. Although each identified a person in that photograph dressed in clothing consistent with that worn by Men at Work employees[24] and walking away from the photograph and towards what was identified and a Men at Work vehicle, with typical signage loaded on it:
[24]Except that a cap is worn rather than the type of broad brimmed hat which was a standard requirement for them to wear,
(a) Each of them stated that it was not himself or either of the others, depicted[25];
[25]Mr De Graff qualified this when he gave evidence in that he could not be 100% sure it was not one of his colleagues without seeing facial features.
(b) The positioning of the truck at the intersection of Burton Road, was not consistent with standard work practices that they had employed at the site; and
(c) The appearance of only one witches’ hat in the photograph, was also not consistent with such practices.[26]
[26]Although it should be noted that this was an issue on which each was cross-examined, particularly as to any conclusion in this respect being affected by the positioning of vehicles in the photograph, such as to obscure the possibility of other witches’ hats on the roadway.
Mr D’Oliveira went so far as to opine that the photo had the appearance of being taken while the worksite was still operational, rather than at the conclusion of such operations and as the site was being cleared.
As the cogency of this evidence was put in issue, each witness was called and cross-examined on this application and the third respondent filed, in response to this evidence, an affidavit of a Mr Quinn, a senior geotechnical engineer, in order to produce some records from the third respondent’s computers, in an effort to demonstrate that the digital image, Exhibit 3, was downloaded from a digital camera, on Monday 10 April 2006 and therefore on the next working day after 7 April 2006. However in doing that, it was necessary to explain away other less consistent recordings, including what was contended to be both the incorrect date and time settings, also downloaded from the digital camera. However the simple point of this evidence was to refute the cogency of the suggestion sought to be bolstered by the additional evidence of the traffic controllers, to the effect that Exhibit 3 must have been taken on some other occasion, when machinery was taken to the site in question, other than on 7 April 2006.
Interpretation of s 50(5) of the Coroners Act
It is necessary to determine the scope and effect of s 50(5) the Coroners Act and in turn to determine what is meant by “new evidence” in s 50(5)(a). This is particularly because the effect of the applicant’s submission is that leaving aside the additional evidence of the three traffic controllers, which was not in any sense, given to or within the knowledge of the Coroner, the remaining additional evidence may be considered by this court both as “new evidence” that “casts doubt on the finding” and as part of “the evidence” upon or by which the finding can not be reasonably supported.[27]
[27]That contention is, in turn, complicated by the counter-contention, that as the traffic controllers were called as witnesses at the inquest, it was open to the applicant to have then adduced the additional evidence from them. Further and as it was understood, the applicant at one point went as far to suggest that “the evidence” in s 50(5)(d) could include all of the evidence available to this Court, including evidence not in any way considered by the Coroner.
First it is important to note that in Hurley v Clements[28], it was determined that:
“[29]We are in no doubt that the reference in s 50 to ‘a finding at an inquest’ is a reference to a finding of the kind required by s 45(2) of the Act. No other kind of finding is referred to in the Act; and it is inconceivable that the reference to ‘a finding’ in s 50 could encompass every conclusion on every issue of fact made by a Coroner on the way to making a finding of the kind referred to in s 45(2) of the Act. Counsel for Mr Hurley urged us to adopt that view, but we are unable to attribute such caprice to the legislature.
[28][2010] 1 Qd R 215.
Further and in relation to a similar context, where a Coroner was described as having not given “the precise statement of ultimate conclusion required by s 45(2) but rather jumbled these conclusions together with the reasons which led her to reach them including her own views on the credibility of witnesses”,[29] it was otherwise observed in respect of the requirements in s 45(2)(b) and (e) (which were there effectively approached as being each concerned with the issue of cause of death), that: [30]
“[23]… A finding that a death was not caused by a particular agent is, by definition, not a finding as to what caused the person to die. That was the view that Callaway JA took in Keown v Khan & Anor.[8] As to the issue posed for a Coroner by s 45(2)(b) of the Act, however, it may not be possible to make a finding that a person died in a particular way without, at the same time, making a finding that the person did not die in a different way. Callaway JA recognised that this was so, saying ‘it will often be necessary for a Coroner to make more than one finding in order to discharge his or her obligations under para (b) [of s 19(1)]’, ie the Victorian analogue of s 45(2)(b) of the Act.[9]
[24]Much of the difficulty in this case arising from the uncertainty as to the scope of the decision of the District Court stems from the Coroner's failure to state her ultimate conclusion in relation to s 45(2)(b) in a succinct and precise way. We will need to refer to these difficulties and the solution to them in this case in due course. It is sufficient at this stage to note that, although the Coroner's findings in relation to s 45(2)(b) of the Act were not stated in conformity with the Act, no challenge was made to those findings on the ground of error of law in that regard, and it may be that, as counsel for the Attorney-General argued, a challenge on such a basis would fall outside the scope of s 50(5)(d) of the Act.”
[29]Ibid at [22].
[30]Ibid at [23]-[24].
Although it is not expressed as such, an application pursuant to s 50(5) of the Coroners Act, is akin to an appeal to this court for the exercise of the powers which are allowed to set aside an impugned finding and to make orders such as are allowed under s 50(7). But first this court must be satisfied of at least one of the requirements of s 50(5).
However the proceeding is not an appeal in the traditional sense. For one reason, it involves consideration of an inquisitorial process, which although allowing for findings that may be of considerable interest to persons affected by them, is not a process that directly affects the interests of any person by the determination of any rights or liabilities.[31] More particularly, for present purposes, and whilst the proceedings in this court attracted the more traditional characteristic of an adversarial process, it is an important and correct understanding of the applicant’s position, that the proceedings below did not and that the applicant’s leave to appear there, did not entail any obligation or right to present evidence or any case, to the Coroner. However, it has also been observed that the role of the Coroner is not to conduct a wide ranging enquiry of the kind that might be engaged by a Commission of Inquiry and that in the exercise of a Coroner’s function in investigating issues such as cause of death, the application of common sense and experience is required and it may not be necessary to explore every suggested causal link, irrespective of how tenuous the connection may appear.[32]
[31]See R v South London Coroner; Ex Parte Thompson, as referred to by Toohey J in Annetts v Mc Cann (1990) 170 CLR 596 at 616
[32]See Re Doogan; Ex parte Lucas-Smith (2005) 193 FLR 239 at [28] and Re State Coroner; Ex parte the Minister for Health (2009) 38 WAR 553 at [47]
In short compass and although as it was recognised in Hurley v Clements[33], that concepts as to standard of proof are to be applied in relation to the necessary findings of the Coroner, concepts as to onus of proof are not involved. Rather the necessary findings that are able to be made, are the result of the inquisition of the Coroner.
[33]Ibid at [25]-[27].
It is, of course, necessary to note some provisions of the Coroners Act and which provide for the control of the conduct of an Inquest by the Coroner. An inquest, of course, is a formal process conducted in a judicial manner and as part of the exercise of a Coroner’s duty or function of investigating a death and in this regard it can be noted that the findings required of a Coroner pursuant to s 45(2), are required of “a Coroner who investigating a death or suspected death”. Further, the circumstances in which a Coroner investigating a death must hold an inquest are regulated by s 27 of the Coroners Act. Other provisions of the Coroners Act which regulate the process of holding an inquest by a Coroner which may be noted for present purposes include s 34, which relates to the holding of a pre-inquest conference and provides:
Further it can be seen from an examination of the record and the context provided by the Coroner’s reasons as a whole, that the impugned finding at [79], was made as a result of the consideration of all the evidence admitted at the Inquest and was equally consistent with a finding that she should not, in the circumstances, make a finding of the kind sought by the applicant, and it could not be concluded that such an approach could not be reasonably supported by the evidence. For the reasons that have been set out, such a finding would not only have been clearly supported by the evidence but it would also have been entirely consistent with the overall effect of the Coroner’s reasons and her assessment of the evidence before her and would have had no different effect as to her finding as to the cause of death.
Finally and more importantly in this regard, the essential problem that confronts the applicant, is that s 45(2) only requires a coroner to make a finding as to cause of death “if possible”. Accordingly and in a case like this and where a contention is made pursuant to s 50(5)(d) that the absence of a coronial finding as to a particular cause of death is not reasonably supported by the evidence, it follows that the applicant must establish that the particular finding as to the cause of death which is sought, was the only reasonable finding allowed on the evidence. For the reasons given, that is not established here and accordingly the application as far as it relies on s 50(5)(d) of the Coroners Act, should be dismissed.
Is there new evidence that casts doubt on the finding as to cause of death?
Having regard to the analysis completed so far and in the circumstances outlined, with the exception of the evidence in the form of astronomical certificates, it is appropriate to then consider all of the evidence presented by the applicant as “new evidence” and for the purpose of applying s 50(5)(a) of the Coroners Act. However, I am not satisfied that any of the evidence relied upon by the applicant, as new evidence, satisfies the requirement of casting doubt on the finding as to the cause of death, in this matter.
Whilst and for the reasons already recorded, there is particular difficulty in regarding the evidence in the form of the astronomical certificates (and any additional materials in the folder presented to the coroner) as new evidence, given that it was brought to the Coroner’s attention, in some detail and because of the way in which the corner dealt with Exhibit 2. Moreover the only suggested remaining relevance of this evidence was in respect of Exhibit 3 and the difficulties with that, as far as successfully underpinning this application, have already been discussed.
Similarly and in respect of the additional evidence from the traffic controllers, which also has potential bearing only the probity of Exhibit 3 and also for the reasons already expressed, such evidence does not sufficiently cast doubt on the finding as to the cause of death, in the circumstances of this case.
In any event, the effect of this evidence in suggesting the recreation of opportunity to take the photograph admitted as Exhibit 3, at a later time and which was canvassed in the applicant’s written submissions in terms of not being “fanciful”, because:
“The drillers were back in the area on 21 April 2006 to drill bore hole 6 and on that day, were told by Ms Jakeman that someone was killed ‘the other day and you really need to wash that off properly’”[73];
is also directly and significantly confronted by the evidence given on this application by Mr Quinn.
[73]Applicant’s written submissions filed 22/12/11, at [66].
Otherwise, a common theme running through the remainder of the evidence put forward as new evidence, (and available from Mr Gentner and Mr Barr), is in the nature of support for the prior assertions of witnesses, as to the observation of debris on the roadway and particularly evidence relating to the prior existence or sighting of a photograph disclosing such debris.
It may be accepted that whilst all of this evidence was available at the Inquest and actually included in materials put forward to the coroner, none of it was admitted into evidence or actually considered by the coroner.
However the issues to which all of this evidence is directed, were engaged and considered by the coroner and the additional evidence does not have the capacity or cogency required to cast doubt on the finding as to cause of death.
The evidence as to the applicants dealing with the Jakemans and Mr Fitzpatrick, adds little if anything to the situation, as was disclosed in the evidence considered by the coroner and does not materially change the complexion of that evidence. The evidence that could be added by Mr Gentner, mostly adds, at best, only marginally to what the coroner already knew and considered in respect of the evidence as to the observations by the Jakemans and Mr Fitzpatrick of debris on the roadway.
The most critical aspect of this is the additional evidence as to the past existence of a photograph that did display some debris on the roadway and particularly the evidence of Mr Barr as to Mr Church’s assertions in this regard. As has already been noted and although Mr Church was cross-examined as to his conversation with Mr Barr and at one point, appeared not prepared to cavil with what had been suggested to him, the remaining tenor of his evidence was that he did not accept that he had described seeing debris on the roadway, either in connection with a photograph or a police car or at all. Further this suggestion was not consistent with the coroner’s ultimate finding in respect of Mr Church’s evidence:
“[69]Courtney submits that I should give no weight to anything Church said in evidence. I reject this submission. Whilst Church’s investigation could be criticised in some aspects and in particular for the way in which Ms Miley’s statement was obtained I am of the view that his evidence was reliable particularly that concerning his evidence that he walked the roadway and saw nothing on the roadway that caused him to believe that there was anything that caused this accident other than speed and inexperience. The conclusions reached by him were open to him.”
It can be noted that this finding came in the context that the Coroner otherwise found that there were substantial reasons to be critical of the approach to and conduct of the subject investigation by Mr Church. However that did not include any reference to the cross-examination as to the conversation with Mr Barr.
Further and whilst the further context, as noted in the reasons of the Coroner, included the similar conclusions reached by another police officer in excluding debris from the drilling as being causative of the accident and as the Coroner noted, the evidence from Mr Lamerton, a further police officer, was summarised by the Coroner as follows:
“[72]Initially Lamerton agreed with the conclusions of Church, that is that the deceased lost control of this motorbike and speed not appropriate for the bend was the most likely explanation. In oral evidence Lamerton resiled from this view stating that he was not happy to say that the deceased’s speed was inappropriate for the bend because there were a lot of factors in terms of why a motorbike might fall over. Lamerton referred to pebbles on the road that might have had an effect. Lamerton drew the inquest’s attention to photographs 9 and 10 of exhibit 17 which are photographs of where Burtons Road connects with the Yandina Bli Bli Road. There was earlier evidence that this gravel had been tracked out of Burtons Road by vehicles driving onto the Yandina Bli Bli Road. (Evidence from A. Jakeman).
[73]Lamerton gave evidence that if a motorcyclist was in the course of a bend and leaning the bike over then riding over a stone on the road would present a loss of friction which might contribute to an accident. (T5-108 at 35).
[74]Lamerton’s evidence was that the deceased may have lost control of the motorcycle perhaps 5 metres further back from the gauge mark on the roadway which would have been in the vicinity of the mid-point of the turning circle on the road although he could not say that with any certainty. (T5-113).”
As that description of this evidence underlines, the factual issue as to whether it was established that there was relevantly any debris on the roadway is merely one part of the exercise. Moreover the problems that remain as confronting the applicant on this additional evidence, remain the same as those already discussed in respect of the evidence considered at the Inquest.
It can, however, be confidently concluded that no further inquiry into this matter is going to unearth any other photograph, such as to enable positive identification of any photograph, as referred to by Mr Gentner, Ms Jakeman or possibly Mr Church in his conversation with Mr Barr.[74] Moreover and in the absence of any such photograph and which might allow some assessment of the extent and nature of any such debris on the roadway and the likelihood of it having any contributing effect on the accident and the likelihood of any such debris being the result of the drilling operations, as opposed to having another source, it would remain, as it was before the coroner, not possible to conclude that the only reasonable conclusion was that any such debris did so contribute.
[74]It can be noted that in conjunction with the preliminary proceedings conducted in respect of this application, the applicant sought and was granted leave to issue a subpoena to the Commissioner of Police, as it was understood, to exhaust available lines of enquiry in respect of any missing or undisclosed photographs and, as a result, nothing was identified as any other new evidence, and on which the applicant sought to rely.
Accordingly this application as far as it is also based on s 50(5)(a) of the Coroners Act, should also be dismissed.
Conclusion
The application is dismissed and the parties will be heard as to the formal orders and any incidental issues.
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