Mauceri v Deputy State Coroner MacMahon - [2017] NSWSC 545

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Mauceri v Deputy State Coroner MacMahon and ors. [2017] NSWSC 545
Hearing dates: 20 April 2017
Date of orders: 10 May 2017
Decision date: 10 May 2017
Jurisdiction: Common Law
Before: Bellew J
Decision:
(1) The proceedings are dismissed.
(2) In the absence of agreement, the parties are to provide to my Associate written submissions as to costs by 5.00pm on 17 May 2017, such submissions not to exceed two pages in length in each case.
Catchwords: CORONERS – Application for an order quashing coronial inquest into death and ordering fresh inquest - Where juvenile killed whilst riding bicycle – Where Coroner found that police were not in pursuit – Whether finding open – Whether Coroner correctly interpreted provisions of relevant policy – Whether Coroner’s inquiry sufficient
Legislation Cited: Coroners Act 2009 (NSW)
Cases Cited: Burrell v R (2008) 238 CLR 218; [2008] HCA 34
Cecil v Attorney-General of NSW and anor [2012] NSWSC 1186
Collector of Customs v Pozzolanic Enterprises Pty Limited (1993) 43 FCR 280
Country Energy v Deputy State Coroner Paul MacMahon and anor [2010] NSWSC 943
Ex Parte Minister of Justice; re Malcolm; re Inglis [1965] NSWR 1598
Director-General Department of Community Services v Crombie [1998] NSWSC (unreported) 19 August 1998
Herron v Attorney-General of NSW (1987) 8 NSWLR 601
Veitch v The State Coroner [2008] WASC 187
Category: Principal judgment
Parties: Jo-Anna Mauceri – Plaintiff
Deputy State Coroner MacMahon – First defendant
Attorney-General of NSW – Second defendant
NSW Commissioner of Police – Third defendant
Representation:
Counsel:
J. Brock – Plaintiff
S. Beckett – Second defendant
D. Hume – Third defendant
Solicitors:
Legal Aid NSW - Plaintiff
Submitting appearance - First defendant
Crown Solicitor for NSW - Second defendant
McCabes Lawyers - Third defendant

File Number(s): 2016/91690
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Coroner’s Court of NSW

Jurisdiction:

Coronial Inquest

Date of Decision:

16 January 2015

Before:

Deputy State Coroner MacMahon

File Number(s):

2013/304282

Judgment

INTRODUCTION

By an amended summons filed on 18 October 2016 Jo-Anna Mauceri (“the plaintiff”) seeks the following relief:

An order that the inquest into the death of James Ciaparra be quashed pursuant to s. 85 of the Coroners Act 2009 (NSW).

An order that a new inquest be held pursuant to s. 85 of the Coroners Act 2009 (NSW).

Costs.

The amended summons pleads six separate grounds upon which the orders are sought, namely:

The Coroner wrongly interpreted and/or applied the NSW Police Force Safe Driver (sic) Policy in determining there had been no police pursuit commenced and in assessing the reasonableness of Constable Strzelecki's actions.

There was an insufficiency of inquiry by the Coroner into the issue of whether a police pursuit was commenced by Constable Strzelecki, particularly in circumstances in which counsel for the plaintiff was not permitted to continue to cross-examine Det. Superintendent Johnson on this issue.

It was not open to the Coroner on the available evidence to determine that it was reasonable for Constable Strzelecki to follow the deceased into Southdown Street shortly before the accident that resulted in his death.

The Coroner failed to properly weigh the evidence available which supported a finding that a police pursuit had commenced prior to the death of James Ciaparra.

It was not open to the Coroner on the available evidence to determine that there had been no police pursuit prior to James Ciaparra's death.

The interests of justice require that the subject inquest be quashed and that a new inquest be held.

The amended summons names the following three defendants:

the first defendant, Deputy State Coroner MacMahon (“the Coroner”);

the second defendant, the Attorney-General of NSW (“the Attorney-General”); and

the third defendant, the NSW Commissioner of Police (“the Commissioner”).

The Attorney-General and the Commissioner actively participated in the proceedings. The Coroner filed a submitting appearance.
A joint Court Book prepared by the parties was tendered and admitted as Exhibit A in the proceedings.

A SUMMARY OF THE FACTS

The factual background is not in dispute. The following summary is drawn from the reasons of the Coroner which were handed down on 16 January 2015.
James Ciaparra (“the deceased”) was born on 3 December 1998 and was the son of the plaintiff and Jeffrey Ciaparra. At the time of his death he was 14 years of age. In 2013 the deceased resided with the plaintiff at Green Valley in south western Sydney, and was enrolled at the James Busby High School. He owned a black and purple coloured BMX pushbike.
Hayden Davis (“Davis”) was a 15 year old boy who lived in the same area as the deceased. When aged 12, Davis was taught how to assemble and ride a “Gasman”, which is an adult mountain bike with an engine attached to it. The engine kit can be purchased on internet sites such as eBay, or from retailers of motorbikes and accessories, at a cost of less than $200.00.
In about August 2013, Davis and the deceased began to socialise with each other. From time to time they would go riding together, the deceased riding his BMX pushbike, and Davis his Gasman. At about that time the deceased told Davis that he too would like to own a Gasman.
On 7 October 2013, the deceased and Davis agreed to swap their respective bikes. Davis had been trying to sell his Gasman but had not been offered what he considered to be an acceptable price. The deceased wanted to own a Gasman, but did not have the money to purchase one. Accordingly swapping the bikes met their respective needs at the time. On 7 October 2013 the deceased took Davis’ Gasman for a ride before returning it to Davis’ premises at 9:00pm to collect some oil and a bike chain. Having done so, the deceased rode the Gasman away from Davis’ premises.
At about 9:15pm on 8 October 2013 a police patrol car, Green Valley 37 (“GV37”) was travelling on Cartwright Avenue, Miller and was being driven by Constable Strzelecki. His partner, Constable Davila, was the passenger. They observed a motorised bike, without lights and other safety devices, swerving harshly before turning from Cartwright Avenue into Miller Road. They followed the bike into Miller Road. Warning devices were activated in an attempt to get the rider (later identified as the deceased) to stop, but they were subsequently deactivated.
The deceased continued along Miller Road and then turned right into Southdown Street, with GV37 following. The deceased then proceeded towards Banks Road which forms a T-intersection with Southdown Street. He collided with a vehicle travelling south along Banks Road and was thrown from the bike. He was then hit by a vehicle travelling north along Banks Road.
Constables Strzelecki and Davila stopped in GV37 and rendered assistance to the deceased. An ambulance was called and the deceased was taken to Liverpool Hospital. In the early hours of 9 October 2013 the deceased died during emergency surgery. His death was reported to the Coroner’s office later that day.
An inquest into the deceased’s death was held before the Coroner on 28 November and 9-10 December 2014. The evidence at the inquest focussed upon the manner of, and the circumstances that led to, the deceased's death, the involvement of the police in those circumstances, and whether or not it was necessary or desirable to make any recommendations in accordance with s. 82 of the Coroners Act 2009 (NSW) ("the Act") in relation to any matter connected with the deceased's death. The Coroner handed down his findings on 16 January 2015. He found (inter alia) that the direct cause of the deceased’s death was massive blood loss, and pulmonary haemorrhage, due to severe trauma following a motor vehicle collision.
I have considered below those particular aspects of the Coroner’s findings which bear upon the individual grounds which are relied upon by the plaintiff in support of the relief sought.

THE RELEVANT LEGISLATIVE PROVISIONS

Jurisdiction is conferred upon the Coroner, under s. 21(1) of the Act, to hold an inquest concerning the death (or suspected death) of a person if it appears that (inter alia) the person’s death is a “reportable death”. Importantly, the Coroner is required to record the manner and cause of the person’s death: s. 81(1). Pursuant to s. 82(1) the Coroner may make such recommendations as he or she considers necessary or desirable in relation to any matter connected with the death in question. They may include recommendations as to public health and safety, or that a matter be investigated and reviewed by a specified person or body: s. 82(2).
The plaintiff in the present case relies on s. 85 of the Act for the relief sought. That section confers a discretion on this Court in the following terms:

85 Orders for fresh inquests or inquiries
The Supreme Court may, on the application of the Minister or any other person, make an order that an inquest or inquiry that has been (or that has purportedly been) held be quashed and that a new inquest or inquiry be held if the Court is satisfied that it is necessary or desirable to do so in the interests of justice because of:
(a) fraud, or
(b) the rejection of evidence, or
(c) an irregularity of proceedings, or
(d) an insufficiency of inquiry, or
(e) the discovery of new evidence or facts, or
(f) any other reason.

In the present case, the plaintiff relies variously on sub-paragraphs (d) and (f). The phrase “in the interests of justice” is necessarily a wide one: Herron v Attorney-General of NSW (1987) 8 NSWLR 601 at 613 per Kirby P (as his Honour then was). In the same case, McHugh JA (as his Honour then was) said (at 617):

In the forefront of matters to be considered in determining whether it is inthe interests of justice to hold a fresh inquiry is the existence of a reputablebody of evidence which, if accepted, would indicate that the original findingas to the manner and cause of death of Mrs Francis was erroneous. Thepublic interest requires that the finding as to the manner and cause of deathof Mrs Francis, if it be an error, should be corrected.

The nature of the discretion conferred by s. 85 has been considered by this Court on a number of occasions. In Director-General Department of Community Services v Crombie [1998] NSWSC 19 August 1998 (unreported) Master Harrison (as her Honour then was) said:

It is not fundamental to the making of an order that a fresh inquiry would be likely to lead to lead to a different finding or verdict. However, the court in considering the public interest, should consider the nature and extent of the defect, its bearing upon the outcome or probable outcome of the Coronial inquiry and the likelihood of a fresh inquiry conducted without such a defect producing a different finding or verdict. In weighing the interests of justice it is relevant to consider whether any practical end is likely to be gained by ordering a fresh inquiry.

In Country Energy v Deputy State Coroner Paul MacMahon and anor [2010] NSWSC 943 Schmidt J observed (at [39]-[40]):

[39] In my view, the construction of s 85 is relatively straightforward. It requires the Court to be satisfied that the interests of justice require that a fresh inquest be ordered. That satisfaction must be reached in the face of the evidence, as to the matters specified. The Court of Appeal's view in Herron, that the predecessor section contained a wide discretion, applies equally to s 85.
[40] Of course such a wide discretion must be exercised on a principled basis, having in mind the competing public interest considerations which arise, whenever an application for a fresh inquest is made. Mere dissatisfaction with a conclusion reached at an inquest, or even that a different conclusion than the one reached, might have been available on the evidence, or even on new evidence subsequently discovered, which supports evidence already before the Coroner in the earlier inquest, may not provide a sufficient basis for the discretion to be exercised. As McHugh J discussed, what must be established is the real possibility that the original finding as to the manner and cause of death was erroneous, with the result that the inquest has failed to achieve what the Coroners Act envisages, namely that the manner and cause of death be determined.

In the context of considering Western Australian legislation in similar terms to those of s. 85, Beech J said in Veitch v The State Coroner [2008] WASC 187 at [43]-[44]:

[43] It has been held in Western Australia that, in an application under that section, in order to satisfy a court that it is necessary or desirable in the interests of justice that another inquest should be held (when one has already been held) it is not necessary to establish that a different verdict will probably be arrived at on a second inquest. Rather, it will be sufficient if there is a possibility that the result of a second inquest will be different from the first. There must be something more than mere speculation: Attorney General v McCann (Unreported, FCt SCt of WA Library No 940816, 11 April 1994) 13–15; Re Zapelli; Attorney General for the State of Western Australia [2000] WASC 183 [11], [16]. See also Re Inquest Into The Death Of Romauld Todd Zak; ; Ex parte Zak [2006] WASC 186 [25] (a case concerned with s 52 of the Coroners Act 1996). Further, those cases also establish that it is not necessary that the evidence relied on be 'fresh' in the sense of 'fresh evidence' for the purposes of appeals.
[44] The reference in the cases to 'the possibility' of a different outcome must, I think, be read as a reference to a real or realistic possibility, not a merely theoretical possibility.

All of these decisions were cited by Hidden J in Cecil v Attorney-General of NSW and anor [2012] NSWSC 1186 at [47]-[50].
It is important to bear in mind that in determining whether the plaintiff should be granted the relief sought it is not enough that this Court would have taken a different course had it been in the position of the Coroner. Moreover, having regard to the principle of achieving finality in litigation, there is merit not permitting a fresh inquest to reconsider the manner and cause of the deceased’s death if a conclusion is reached that the circumstances of that death were appropriately determined by the Coroner after a full inquest: see generally Burrell v R (2008) 238 CLR 218; [2008] HCA 34.

THE GROUNDS RELIED UPON BY THE PLAINTIFF

The Coroner wrongly interpreted and/or applied the NSW Police Force Safe Driver (sic) Policy in determining there had been no police pursuit commenced and in assessing the reasonableness of Constable Strzelecki’s actions

The evidence before the Coroner

Tendered before the Coroner was the NSW Police Force Safe Driving Policy (“the Policy”). Part 6 of the Policy, headed “Urgent Duty and Pursuits” contains the following (Exh. A at p. 619):

Pursuits:
PURSUIT: A pursuit commences at the time you decide to pursue a vehicle that has ignored a direction to stop.
An attempt by a police officer in a motor vehicle to stop and apprehend the occupant(s) of a moving vehicle when the driver of the other vehicle is attempting to avoid apprehension or appears to be ignoring police attempts to stop them.
A pursuit is deemed to continue if you FOLLOW the offending vehicle or continue to attempt to remain in contact with the offending vehicle, whether or not your police vehicle is displaying warning lights or sounding a siren.
[Redacted]

The Policy also makes provision for guidelines governing pursuits. Those guidelines contain (inter alia) the following (Exh. A at p. 649):

[Redacted]

Shortly after 2:30am on 9 October 2013 Constable Strzelecki was interviewed regarding the circumstances of the collision in which the deceased died. A transcript of that interview was before the Coroner (commencing at Exh. A p. 56). When asked (at Q.9) about the incident, Constable Strzelecki replied as follows:

Well we’re about, sometime about quarter past 9.00 so about 9.15 I was travelling up Cartwright Avenue. I’ve then seen a person on a pushbike in the distance. I’ve then seen this person on the push bike slow down on the right side of the road and I’ve heard the motor of the push bike still travelling. I’ve then seen this gentleman, as we’ve approached the, the guy on the push bike he’s then veered across on from Cartwright Avenue onto Miller Road. We’ve then caught up to the push bike around the corner as he’s travelling on Miller Road. I’ve then acted (sic) activated my lights and this, when the gentleman has seen the lights he’s just moved over to the right and then back to the left in front of the car. I’ve slowed down a bit just in case. I’ve then pressed a yelp button a number of times in order to signal him to stop. He hasn’t. I’ve let the siren go off for about two to three seconds to issue, to inform the driver to pull over and which he hasn’t. He’s then taken off. I’ve turned off the lights and sirens. I, I saw the guy on a push bike turn quickly onto, from Miller Road onto Southdown. I’ve slowed down to complete but I’ve also turned into Southdown. I haven’t continued at any speed. I’ve let the vehicle roll down Southdown Place at about 40 ks and then when I was about 40 metres from the intersection on Southdown and Banks Road I’ve seen the gentleman on the push bike continue straight for the intersection and get struck by two vehicles travelling on Banks Road.

Constable Strzelecki was then asked (commencing at Q.48):

Q.48 So he’s, he’s turned into Miller Road and you’ve turned in after him so when you’ve got back, when you’ve turned into Miller Road after him where was he when you first got down into Miller Road?
A. We got to Miller Road, we caught up to him here and that’s where I’ve turned on the lights just sought of give him idea to pull over
Q.49 Ok. When, when you put your lights on how close were you to him?
A. ‘Cause what’s, I’ve, it was about 20m but then he slowed down really quickly so I’ve slowed down anyway and then he’s sort of accelerated a bit on his push bike but it hasn’t really ‘cause it’s only a small motor. He hasn’t really gone that far away from us. Then - - -
Q.50 So that was about here near this Ryeland?
A. Yeah.
Q.51 Ok. So he’s slowed down and then he revved up and ?
A. Yeah he’s revved up and then I’ve, I’ve let the lights, so I’ve turned the lights back off then what’s happened is he sort of just ignored us and gone towards the right of the road again on Miller Road.
Q.52 Mmm hmm.
A. And just sort of taken off but then swung back in front of us onto the left and then slowed down again.
Q.53 Mmm hmm.
A. So I’ve let the lights off again and that’s when I let off the yelp of the sign, maybe three times but it - - -
Q.54 Were the lights were on, were the lights?
A. Yeah with the lights on.
Q. 55 Lights on yeah.
A. Yep but he’s done nothing to that. He’s just continued at the same speed. We’ve been like the same gap. Would have been about 40 metres behind him, like, not right, I wasn’t on his rear end just in case he did stack it.
Q.56 Mmm hmm
A. We’ve continued down Miller Road and then I’ve let off the, the . . . button, pressed that on, that’s probably gone off for about three seconds pretty much telling him to pull over and stop and, and that’s when I’ve shine the high beam but I think the lights of sirens and the police lights I could see all in their own helmet so I turned off the lights and that’s about, and then he’s taken off.

Constable Strzelecki was then asked (commencing at Q.62):

Q.62 Yeah, yeah, ok. So, so where were you when he turned into Southdown?
A. When we’ve at Southdown we were probably across of, just, just passed Corriedale. I reckon we would have just past (sic) Corriedale Street.
Q.63 And he’s turned into Southdown?
A. ‘Cause, yeah, he took off and I was, didn’t take much of it. I go yeah let him go and turned off the lights and I go, we’ll see where he goes and he’s turned quickly into Southdown.

Q.64 Ok. And it’s, so then what happened?
A. Then he’s turned, he was on Miller Road so he was right, when you get towards the end of Miller Road before you get to Southdown there’s a, it’s winds up (sic), just like cars park there for housing. He’s pretty much gone right to left and gone, what, hooked the corner as much as he can, as quick as he can then we’ve turned into Southdown as well. As I’ve taken the corner of Southdown there’s no lighting. I couldn’t see him. I could still hear the motor. You can hear him revving that pretty loud, the motor so I go, Yeah, must be gone by now then as you get to about 30 metres before you get to Southdown cross of Banks Road there’s some street lighting there. I’ve seen a flash of him go through the street lighting then I seen him go straight right in the middle of the intersection and get collected by a car, yeah.
Q.65 Ok. Where do you reckon you were or can you, like mark on there where you would have been when hit the intersection?
A. We’ll (sic) probably three quarters the length down the street around there from about half way to about three quarters the length.
Q.66 Ok. But at that stage you had no lights on, no sirens?
A. No. Yeah, no lights were on, no sirens.

Constable Strzelecki agreed that prior to reaching Southdown Street GV37 was positioned between 20m and 40m behind the deceased (at Q.72). He stated (at Q.73 and following) that GV37 did not exceed 40 to 50km an hour at any time, and confirmed (at Q.82 and following) that the last point at which the lights and sirens on the vehicle were activated prior to the impact was somewhere on Miller Road towards Corriedale Street.
Importantly, for the purposes of this ground, Constable Strzelecki was asked the following (commencing at Q.134):

Q.134 Just the other thing, when you did your, turned your lights off near the bus stop on Miller Road what did you decide to do?
A. Well when we, when I turned off the lights and the, the sirens, it was pretty much just to, just to leave it at that. There was just, we turned off down that way. We were just gunna see where he was going to ‘cause the areas known for break and enters. I’ve had the belief that he was just gunna continue down Southdown and cut over Banks to the bush reserve and I knew, ‘cause we were only in a sedan and we’d never get there anyway. There was no point of even chasing him ‘cause we wouldn’t be able to chase him through the park so I’ve gone we’ll just hang around the area. I’ve turned into Southdown. There’s just, I’ve just turned into the street where he is unfortunately went down.
Q.135 So is it fair to say from what you’ve, what you’ve just said, is that when you’re here and you, you saw that he was, he was turning into Southdown at that stage you’d formed the opinion that, well, I’m, I’m not going to stop him? He’s not going to stop for …
A. I’ve not, I’ve been in a, in the area for four years now. Like I’m aware Banks Road is a busy road.
Q.136 Mmm
A. Like, yes I, I use that same might happen if he goes to that intersection that’s why I’ve turned off my lights and just backed off. Yeah.
Q. 137 And that’s so, so you just decided to, to hang around the area - - -
A. Yeah just in case this might have been down there.
Q. 138 - - - and see if he, if he pops up again somewhere.
A. Yeah.

Constable Davila was also interviewed in the early hours of 9 October 2013 (commencing at Exh. A p.104). At Q.13 Constable Davila was asked for his account of the incident and replied:

O.K. Ah, we were driving, well, Constable Strzelecki was driving on Cartwright Avenue. Um, we’ve noticed a, um, the boy on the bicycle, motorised pushbike, um, riding along Cartwright Avenue. Ah, all of a sudden, he’s just, ah, from the right side of Cartwright Avenue, just goes in front of us, um, and heads up Miller, Miller Road. Ah, so we decided, um, you know, just pull him over, see what he is doing, what he’s up to. Ah, so we we’ve decide to follow him up Miller Road. Um, while we were in Miller Road, um, we’ve noticed that either he hasn’t seen us or, ah, he, he wasn’t stopping. So, um, Constable Strzelecki puts the lights on, um, and a few seconds later, he, he presses the, sort of like the, the, um, the sirens, um, but he doesn’t leave it on for a long time so maybe, it was possibly maybe five seconds at the most. Ah, from then, he’s, I’ve, I’ve noticed that the boy in the, riding the pushbike looks back. Um, he obviously doesn’t stop so we turned the lights and, sirens off immediately. Ah, obviously there was no point of, um, going to a pursuit with him and all that sort of stuff. Um, so he’s still going down Miller Road. Ah, all of a sudden, he turns into the road, now that I know to be Southdown. Um, we’ve, as he turned, we’ve obviously lost sight of him for a few seconds only. Ah, as soon as we turned into the road we’ve obviously, ah, seen him again, ah, because of the headlights of the car. Um, and from there, ah, we were basically just, ah, we were just see where he goes, so we basically no more than maybe fifteen K’s we were in the car driving, ah, while he was just going ahead, um, basically, ah, leaving us behind. We weren’t in a pursuit of him or anything like that. We just wanted to see where he was going. Um, and then, possibly, I reckon it was about thirty metres before the actual intersection, ah, we see him go just straight into intersection and basically that’s where he got hit by a car. So that’s basically what happened.

Constable Davila expanded on this account to some degree in answer to Q.19:

- - - as we were driving, he…, just comes in front of us and goes up Miller Road. So from here, we decided to, that’s when we decided, you know, we’ve got to stop him and …, have a chat with him, what is he doing. If possible, you know, give him a search and all that sort of stuff. Um, so we’ve decided to go up, go up after him just to stop him. Um, so he’s, he’s driving up here, not sure if he’s realised we’re police or not, around, probably around, in the middle here. Um, that’s when um when, um, Strzelecki, um, just turns the light on. Um, he’s obviously not stopping. Um, he looks back, he’s sees police, and, from there, Strzelecki, um, puts the sirens on. This would probably, the lights and sirens were probably on very quickly, probably around five seconds. Um, he didn’t stop at all. Um, obviously, um, we decided we’re not going to pursue him, he’s on a bike and all that sort of stuff. So he come to Miller Road and from here, he goes into Southdown. So we lose sight of him for a bit, a couple of seconds. Um, as soon as we turned into here, um, obviously with the headlights, we could see him again. Ah, and, and this, from here, we decided, ah, we’ll just see where he heads ah, we’re not going to do either, we’ve not going to stop him. We just wanted to see where, where he was going.

In answer to Q.27, Constable Davila described the deceased’s manner of driving as “reckless”. He said that it was this reckless manner of driving which explained why he and Constable Strzelecki intended to stop the deceased “just to find out what he’s doing, um, and possibly see if we could search him, and, and all that sort of stuff”.
Constable Davila also explained (at Q.44 and following) that the lights and sirens of GV37 were activated for about five seconds, at a time when the deceased was travelling about four or five metres in front of the vehicle. He said that the deceased looked around when the lights were activated but did not stop, following which the siren was activated in the hope that it would motivate the deceased to do so. In answer to Q.53, Constable Davila said:

“Um, as soon as he wasn’t stopping we’ve said, we’ve said no, we’re not going to pursue him, we’re not going to do anything, so we’ve turned the lights off and the sirens off straightaway.

At Q.70 and following, Constable Davila explained that the lights and sirens of GV37 had been turned off when it was about half way between Cartwright Avenue and Southdown Road, and that they remained off between that point and the collision. The lights were re-activated when the police vehicle stopped at the scene.
Constable Strzelecki and Constable Davila both gave evidence before the Coroner.
Constable Strzelecki said (Exh. A at p. 709 L30 and following) that he was aware of the existence of the Policy and that at about the time of the death of the deceased there had been an ongoing issue regarding the use of Gasmans by teenagers (commencing at p. 710 L7). He was then asked about making a decision to engage in the pursuit of another vehicle (commencing at p. 711 L20):

Q. When you're in a vehicle like that that's a marked vehicle and you want somebody in another vehicle, a bike or a car to pull over what do you do?
A. Well usually initially turn on our lights, that signals the driver to stop, if they don't stop we usually let off the siren once or twice to let out a loud noise, a yelp, that's what they call it which pretty much advises them to pull over for us.
Q. And if somebody doesn't pull over, I'm not talking about James, just generally, after you've activated the lights and sirens do you then have to consider what to do next? A. It's up to our own discretion if we decide to actually engaged in a pursuit with the vehicle, if we decide to engage in a pursuit we have to notify radio immediately.
Q. What factors do you consider in terms of whether to engage in a pursuit?
A. We base it based on the risk of us to ourselves and to the public so if there's a number of people around, the speeds if they crossed to the other side of the road then we usually terminate or don't even pursue in the first place.
Q. And did you receive any training when you did your Silver Driving course in relation to how to make that decision properly, whether to pursue?
A. That decision is based on our own judgment and based on our policing experience so we usually base it on what we see while we're travelling behind the other vehicle. If we determine it to be too dangerous then we usually decide not to pursue the vehicle.
Q. And so that decision about whether to pursue somebody relies on your judgment is that right?
A. Yes.
Q. Are you taught that that should be something that you're discussing with your colleague in the car if there is one?
A. No because you're the driver you're responsible at the time. You can speak to your partner if you want but as being the driver you're responsible.
Q. And do I understand your evidence to be that you consider certain factors like other cars on the road, the particular vehicle that you're in?
A. Yes.
Q. And your level of experience?
A. Yes.
Q. Situation, and you weigh up then the risks involved in pursuing?
A. Yes.
Q. And the risks involved in not pursuing?
A. Yes.
Q. You weight up the public interest considerations in those circumstances?
A. Yes.
…
Q. … prior to October 2013, were you aware of any directive
from anybody senior to you about what you should do in relation to people
riding a motorised bike who don't stop?
A. No. It's all, mainly based on our judgment at the time, if we believe its
unsafe then we don't pursue.
Q. So in your view would there have been some circumstances where it was
appropriate to pursue somebody riding a motorised bike and some where it
wasn't appropriate to pursue?
A. We can decide to pursue, if it becomes unsafe then we can terminate the pursuit if we decide it's unsafe.

Constable Strzelecki gave evidence (at p. 717 L4-14) that he wanted to ascertain the deceased’s identity because he was intending to stop him in light of his manner of driving. When asked (commencing at p. 718 L13) what he did in an effort to stop the deceased, he said:

A. As we've turned into Miller Road, I've let off the lights for a couple of seconds to inform him to stop. That hasn't done anything at all. I've let off the
yelp button or the siren a couple of times to inform him to stop. He just continued to veer left to right in front of us, slow down, slow up, but then he's
taken off.
Q. What time was there between you activating the lights and activating the
sirens?
A. Only be a short period of time, so the lights would probably go on for about, I'd say two to three seconds at the most, yeah, so it was only a short period, the lights rang for about two to three seconds, then I left the siren off.
Q. Did the lights run at the same time as you let the siren off, that is do they
continue to run?
A. Yes.
Q. And so you say the light ran for two to three seconds, then you let the siren off?
A. Yep.
Q. And then what happened?
A. Then what's happened is he's looked back at us and taken off, that's when I seen he wasn't wearing a helmet.

Constable Strzelecki said that after he had activated the lights and sirens, the deceased looked back at him. He was then asked (commencing at p. 719 L14):

Q. What happened after James looked behind, what did he do?
A. The bike's revved louder, we could hear it revving louder and it's taken off
from us. I've seen him wobble on the bike. So I've just said "I'm not pursuing
him".
Q. When you said "I said I'm not pursuing him" did you actually say that out loud?
A. That's what I said to myself in my head.
Q. And what happened after that?
A. He's continued to take down I think towards Southdown Street I believe it was, and we just continued to cruise along, rolling pretty much down Miller Road and Southdown, not pursuing him at all.

Constable Strzelecki stated (at p. 720 L5-7) that after the deceased looked back at him, he turned off the lights and sirens and “just continued at, pretty much let off the accelerator and just continued to roll down Miller Road.” He estimated his speed at that time as not exceeding 40km per hour (at p. 710 L9-13).
Constable Strzelecki then described seeing a “flash” as the deceased turned right into Southdown Street. He was then asked (commencing at p. 720 L39):

Q. What did you do after that?
A. We've also turned into that street, just to see where he's going and I've completely backed off the throttle, I've just rolled down Southdown. He's continued along Southdown where pretty much because the street was poor lighting I couldn't actually see him, I could just hear the motor. Then there was about a section between 10 and 20 metres before the intersection that's lit. I've seen the flash of him going to the intersection and I've seen him continue through the intersection and collide with the other vehicles.
Q. So is it correct from what you just told us that you didn't see James again on Southdown Street until about 10 to 20 metres prior to the intersection? A. Yeah, we could just hear the motor but from hearing the motor ..(not transcribable).. it was him but only saw him right at the intersection pretty much.
Q. Why did you turn right down Southdown Street?
A. I wanted to notify where he was going just to see that he wasn't - because usually across from Banks road there's a parkland and I was going to notify the other cars that he's taken off down that direction.
Q. What was your purpose in doing that?
A. Based on history of dealings with other people usually people have taken off from us through the parklands and if there was another car in the area maybe they could stop him in (sic) the other side.
Q. What was your purpose of wanting him stopped on the other side?
A. Pretty much to speak to him about his driving, get him to slow down and pretty much get his head together.
Q. What were your concerns at that stage?
A. His manner of driving. He was getting, from the time we initially saw him to where he's cut us off and he's continued at speed he looked unstable on the bike, that's why I decided not to pursue him. And we needed to stop him for his own safety.
Q. What speed were you doing on Southdown Street?
A. Between 30 and 40. Wouldn't be any more than that.
Q. From the point at which you saw James again, that 10 to 20 metres prior to the intersection, did you change your speed at all between that point and the accident?
A. I believe I accelerated as I've taken the corner to 40K's and I've just continued to roll at the same speed. I didn't even have my foot on the accelerator.
…
Q. Officer at any stage after you first activated the lights and the sirens, did you activate them again?
A. No I believe I activated the lights, I think I left the lights running. I've let the yelp off I think once or twice and I pressed the alert button, I think that's, that pretty much has like a siren going in a rotation doesn't stop, it's not like a single noise, it just continues the siren, yep.
Q. So do I understand that after the initial flash of the lights and the siren, the siren went - I withdraw that. There was an initial flash of the lights?
A. Yes.
Q. That remained on when the sirens sounded?
A. Yes, while I let off the two yelps, which are just a single, just a burst. And then there's another button we press which is called the alert button and that lets off the siren on a constant basis.
Q. Okay?
A. Yep.
Q. So the yelp, is it accurate to describe it as a "woop woop"?
A. Yeah.
Q. In that yelp. And then when you pressed the alert, what noise does that
make?
A. (No verbal reply)
Q. Forgive me for asking you to—
A. That's just like the basic noise you hear, like a police siren make.
Q. I see?
A. Yep.
Q. The lights remained on, is that right?
A. The lights remain on.
Q. So the alert button leaves the lights on and the siren, the longer siren sound?
A. Yes if you press the alert button the lights will be left on still. If not, they will turn on and the siren goes on a continuous basis.
Q. So as James continued on in a direction in front of you the lights were on, remained on and there was a normal longer sounding siren of a police?
A. That's right.
Q. And that continued right up until the collision, is that right?
A. That was only for the first point on Miller Road until I've completely turned it
off and he's looked back and taken off from us.
…
Q. So from your perspective James continuing on ahead of you by the time he got to the end of Miller Road would he have seen or heard anything behind
him in terms of what you were doing in the car?
A. Along Miller Road.
Q. Yes?
A. Yes.
Q. What would he have seen or heard?
A. He would have seen the fully marked police vehicle. He would have seen both lights going and he would have heard the noise or the sirens loud and clear.
Q. By the time he turned onto Southdown Street was there anything in terms of lights or sirens going on behind him?
A. No, just the headlights, normal headlights of the vehicle because it was night-time.

When asked (commencing at p. 724 L26) what he would have done had the accident not occurred, Constable Strzelecki responded:

A. Most probably notified radio that he's continued, we've had a motorised pushbike take off from us and he's continued in whatever direction he decided
to take off. Maybe down Banks Road or into the reserve.
Q. If he'd continued down Banks Road, wouldn't you have followed behind
him to keep an eye on him?
A. No.
Q. Why not?
A. Because of his driving at the time, it was too dangerous and when he turned back at us we could see he had no helmet so even pursuing him is too much of a risk.
Q. So when you say even pursuing him do you mean that even following behind him without lights and sirens was too much of a risk?
A. Yes, that's why I've completely let the, turned off the lights and sirens and backed off and not even accelerated after him.

Counsel assisting the Coroner then returned to matters pertaining to the Policy. In that respect, Constable Strzelecki was asked (commencing at p. 732 L21):

Q. Officer you've had a chance now for about a year to reflect on what happened with James' death, you told his Honour that you were aware of the safe driver policy, do you think that you were in breach of the policy at all?
A. No.
Q. You understand that that policy requires that if you are going to pursue somebody you call in the pursuit, is that right?
A. Yes.
Q. What do you actually do in terms of calling in a pursuit?
A. We just notify or radio the pursuit and the location we're at and they ask for more details as it continues.

Q. What do you understand to be the purpose of that?
A. That will be just to - so radio is aware and they can advise us because we have a doi(?) (sic) on the radio and we explain them the circumstances as quickly as we can on the radio and they will notify us to terminate the pursuit at that stage or continue.
Q. You were following James at the points at which you have indicated, why do you say that wasn't a pursuit?
A. Because I had turned off my lights and sirens. I've made the decision at that time not to pursue him at all. He's taken off from me and continued to take off at speed.
Q. Are there any circumstances in which you think that you could pursue somebody for the purposes of that policy and the police definition of pursuit, even when you didn't have lights and sirens on?
A. What do you mean by that, sorry.
Q. I will clarify the question. Is it possible for police to engage in a pursuit without putting the lights and sirens on their car on?
A. No because if - you need your lights and sirens on for the other person to be notified that you are in a pursuit. I think that would make them aware if they've taken off from you, and you have your lights and sirens going it's obvious to the police and to the driver they are in a pursuit.
Q. So in your view you could follow somebody but as long as you didn't have your lights and sirens on you wouldn't be engaged in a pursuit of them?
A. No, that's not it. What I'm trying to suggest is I've turned off my lights and sirens. I made a decision at that stage not to pursue this gentleman. He's had the decision to pull over but he's not chose to do that and taken off from us.
Q. You've also told his Honour that you've followed and you have indicated the route that you took that was the same route that James had taken except
that he was in front of you?
A. Yep.
Q. Is it your view that that was not a police pursuit?
A. Yes, that was not a police pursuit.
Q. Is it your view that it is not a police pursuit because you didn't have lights and sirens on?
A. No, because I've a decision earlier not to pursue, not to pursue him at all.
Q. You understood that James had seen you at some stage in the car behind, is that right?
A. Yes.
Q. So it was your belief that James knew the police at one point would try to get him to stop and pull over?
A. I'm pretty sure he would have been well aware of it when we had the lights going. He's turned around and heard the sirens.
Q. You were satisfied that he had seen and heard
A. He was aware that police were behind him.
Q. Did it concern you at all that James might think that you were in pursuit of him if the car continued in the same direction he was taking?
A. I believe by turning off my lights, not letting a siren go, reducing - going back pretty much to the speed I was travelling at and not pursuing him, I believe he would have come of the opinion that I wasn't pursuing him.
Q. Having a year to reflect on what happened, is there anything you would do differently next time?
A. No.

Constable Strzelecki was cross-examined by counsel then appearing for the plaintiff regarding his knowledge of, and training in, the Policy (commencing at p. 744 L3):

Q. Now you have told the Court that you've had training in the safe driver policy?
A. Yes.
Q. And you are aware of the definition of a pursuit?
A. Yes.
Q. It's true, isn't it, that as far as you're concerned you made an initial direction to James at the top of Miller Street by flashing your lights for him to
stop?
A. Yes.
Q. He disobeyed that direction?
A. Yes.
Q. You continued following him with the intention of stopping him?
A. Yes.
Q. You kept up with him down Miller Road until you decided to turn your lights and sirens off?
A. No, I decided to keep a safe distance to him while I let the sirens and that off. He hadn't stopped so I turned it off and he's actually continued to pull away from us.
Q. Down Miller Road I want to suggest to you that he was never more than about 20 metres in front of you?
A. No, as he's taken away from us the distance has increased.
Q. Well within your sight?
A. I could still see him but as I've turned into Southdown it's pitch black and I
couldn't see him.
Q. So the distance has increased when you have decided to turn your lights and sirens off?
A. Yes.
Q. Is that what you are saying?
A. Yes.
Q. So up until that point you had no trouble seeing him or keeping up with
him?
A. No, I could see him clearly, yes.
…
Q. But what I want to suggest to you is that in the period of time when the lights are still on and the alert siren is going why wasn't that a pursuit?
A. Because prior to that he's actually not taken off from us, he has kept pretty much within distance to us. Once I have seen him turn around and he's taken
off I've turned off the lights and sirens to notify him and to myself that's not a pursuit, that I am not going to chase him or pursue him.
Q. Isn't it the reality that the only difference is that you would have called it in?
A. No.
Q. You have then made a decision to keep him in your sight, haven't you or to try to keep him in your sight?
A. I just wanted to see where he's turned off, it's just the period between where I have turned the lights off and the sirens I was easily able to see him turn into Southdown.
Q. And the reason you wanted to see where he was going is because you still wanted to stop him?
A. No, no.
Q. You wanted other police to stop him, to intercept him if possible stop him?
A. I wanted to let the other police know that we have had a vehicle take off from us and to notify them of the location which Southdown Street leads to a major road so I wanted to notify them where he has gone from there.
Q. And you were certainly following him into Southdown Road, weren't you? A. Yes I have turned into Southdown.
Q. And you were following him up Southdown?
A. No.
Q. You were trying to see where he went, weren't you?
A. Yes.
Q. You were trying to maintain visual contact with him on Southdown, weren't you?
A. Once on Southdown I actually couldn't see so I didn't know where exactly
on Southdown, he could have been at the other end of Southdown from then
all I heard of the engine revving.
Q. Question is what were you trying to do and you were trying to maintain visual contact because you wanted to see where he was going?
A. Yes.
Q. And you in fact had visual contact with him at the time of the impact?
A. Prior to that I didn't actually see him, I only saw him at the time of the collision.

Constable Strzelecki denied that he had ever been given any advice from his superiors about the necessity to apply caution when trying to stop or pursue a Gasman. In particular, he was asked (commencing at p. 749 L12):

Q. See in the interview in February of this year you were asked specifically about some particular advice that Superintendent Johnson says that he gave and that was read to you in the interview:
"I have advised my officers both in person and via email that they
should not engage in pursuit of motorised pushbikes due to the
potential danger posed to riders of these vehicles due to their
potential speed and lack of safety equipment fitted to the motorised
pushbikes."?

A. No, I have never been given that.
…
Q. In any event you were aware of the advice from traffic supervisor not to
engage in pursuits?
A. No, he has never given us advice like that.
Q. You were aware, weren't you, that the intersection between Southdowns (sic) and Banks was a particularly dangerous intersection?
A. Yes we have been to a number of collisions up the road at Banks across
South Liverpool Road for a number of motor vehicle collisions but at that time
of the night Banks Road isn't known to be a busy street.
Q. You knew that there was some risk with James on his Gasman going down
Southdown towards that intersection, didn't you?
A. Yes.
Q. And that is why you stopped pursuing him?
A. Yes.
Q. And just were following him?
A. No.
Q. Keeping him in view?
A. No.

Constable Davila gave evidence (commencing at p. 766 L39) that GV37 was approximately 10 metres behind the deceased as the deceased turned into Southdown Street. According to Constable Davila, GV37 had slowed down dramatically at that point and was travelling between 25 and 30km an hour (at p. 766 L46 – 48). He said (commencing at p. 767 L27) that the police vehicle was approximately 30 metres away from the intersection when the deceased entered the intersection and was struck. He was then asked (commencing at p. 767 L41):

Q. At any stage from the time that the lights and sirens were activated to the time when James had this accident in the intersection, did you have a discussion with Constable Strzelecki about what you were doing?
A. No.
Q. What did you think you were doing?
A. What I would say I just wanted to see where he was going that's it. So
weren't, no longer in pursuit but wanted to see where he was heading.
…
Q. In answer to one of my questions earlier you said that at some point you stopped the pursuit, do you recall that?
A. Yes.
Q. At what point was the pursuit going on for?
A. Well it wasn't really a pursuit.
Q. Why do you say that?
A. Because we just wanted to stop him to begin with. We put the lights and sirens on what we do with any other car we want to stop and obviously he didn't stop for us. So that's why Constable Strzelecki turned the lights and sirens off because we weren't going get into pursuing him.
…
Q. Why did you consider that it was appropriate to follow behind James in the police car?
A. Well for me I would say he obviously didn't want to stop so I don't know what he was up to, if he was up to no good or not and I just wanted to see where he was heading that's all.
Q. You wanted to see where he was heading and if possible you wanted to
stop him and pull him over?
A. If possible.

When questioned by counsel then appearing for the plaintiff Constable Davila said (commencing at p. 772 L40) that he could not recall receiving any correspondence from his Local Area Commander about Gasmans prior to this incident. He also said that his Local Area Commander had never spoken to him personally about that issue. He confirmed that GV37 followed the deceased from Cartwright Avenue into Miller Road, travelling a few metres behind him. He was then asked (commencing at p. 773 L47 and following):

Q. Your vehicle in any event was only a few metres behind him?
A. Yes.
Q. It remained a few metres behind him for quite a while?
A. Up to the point, yes, up to the point where the lights and sirens were turned off yeah.
Q. So up until when all lights and all sirens were turned off your vehicle remained within a few metres of James' bike?
A. That's right, yeah.
Q. I want to suggest to you that when the warning lights came on, when they first came on, before any siren, he looked back?
A. No.
Q. You did an interview in the early hours of the morning within hours of this incident happening?
A. Yes.
Q. Do you say that the answers that you gave in that interview ere true and
correct?
A. Yes.
Q. In that interview, for the people at the bar table questions 19, you've said
this. "He's driving up here, not sure if he's realised we're police or not,
probably around in the middle here. That's when Strzelecki just turns the lights
on"?
A. Uh-huh.
Q. "He's obviously not stopping, he looks back, sees police and from there
Strzelecki puts the sirens on." That's what you said?
A. Okay yeah.
Q. So what you said is he puts the lights on, Strzelecki puts the lights on, James looks back?
A. Yes.
Q. Sees that it's police and he's not stopping? Correct that's what he said?
A. Yes.
Q. From there Strzelecki put the sirens on?
A. Okay.
Q. That's what you said and that was true wasn't it?
A. Yes.
Q. Because you said it again at question 44. "As soon as the lights went on I noticed that he looked back but he still wasn't stopping so hit the sirens." So that's twice in the interview, lights on, he looks back, not stopping, then sirens on, correct?
A. Okay yes.
Q. Because that's what happened wasn't it?
A. Yes.
Q. So you knew, in your mind, when he looked back, when the lights were on, that he wasn't stopping, correct?
A. Correct.
Q. He was ignoring the direction of the police by the flashing lights to pull over?
A. Yes.
Q. In your mind you still wanted to stop him?
A. No.
Q. When he looked back after seeing the lights, before any sirens had gone on you didn't want to stop him anymore is that what you're saying?
A. Can you repeat the question again?
Q. Lights on?
A. Yeah.
Q. He looks back?
A. Uh-huh.
Q. He's not stopping?
A. Yes.
Q. He's not stopping but you still want to stop him don't you?
A. No.
Q. Well what's changed that he's looked back and seen the lights and he's not stopping why don't you want to stop him anymore?
A. Well that's why you flick the sirens on so he knows it's actually a police car.
Q. The sirens get flicked on?
A. Yes.
Q. To tell him, not only with flashing lights—
A. Yes.
Q. -with the sirens?
A. Yes.
Q. Stop, pull over?
A. That's right.
Q. So you still wanted to stop him?
A. Well from that point once them lights and sirens were on he wasn't stopping so that's why we stopped trying to stop him.
Q. He wasn't stopping before any sirens were hit was he?
A. No.
Q. No he wasn't was he?
A. No he wasn't.
Q. So the sirens, hitting the sirens, and meanwhile the vehicle's got the lights flashing doesn't it?
A. Yes.
Q. And he's not stopping?
A. That's right.
Q. You're not stopping, you're vehicle is not stopping?
A. Mm.
Q. Travelling down Miller Road?
A. Mm.
Q. Lights flashing?
A. Yes.
Q. Following someone who is not stopping?
A. Mm.
Q. Who's made it clear he is not stopping?
A. Yes.
Q. Then the sirens sound?
A. That's right.
Q. To try and make him stop?
A. Mm.
Q. And he's still not stopping?
A. That's right.
Q. The sirens weren't just a yelp were they?
A. They were the yelp yes.
Q. A yelp went off?
A. Yeah.
Q. And also the alert didn't it?
A. No, it was only the yelp.
Q. The sirens went off for at least about 5 seconds didn't they?
A. The sirens, the noise of the sirens yes went for around five seconds.

Later, the questioning returned to the issue of the point at which GV37 was following the deceased along Southdown Road (commencing at p. 779 L20):

Q. In your mind there was absolutely no doubt that your vehicle was following him into Southdown?
A. Yes.
Q. In your mind you were in agreement with that because you wanted to keep eyes on him to see where he went?
A. Yes.
Q. The pursuit had stopped when the lights and sirens went off?
A. There was no pursuit.
Q. You were in a vehicle, following someone who had made it clear he wasn't going to stop?
A. Yes.
Q. He'd already done that before any sirens came on yes?
A. Yes.
Q. That your vehicle continued to follow him within only a few metres behind activating the sirens for about five seconds?
A. Yes.
Q. And continued to follow him for five seconds worth of distance down Miller
Road?
A. Yes because the light were on for five seconds yes.
Q. You were doing about 40 down Miller Road weren't you, 40 or 50 even?
A. Well around that yes to be behind him.
Q. The purpose was clearly to stop him?
A. That's right.
Q. Apprehend him wasn't it?
A. Just to stop him yes.
Q. To stop him and apprehend him in relation to the way he'd been driving? A. Just to speak to him about (sic) yes.
Q. Then when the lights and sirens were turned off the vehicle kept following
him?
A. Uh-huh.
Q. The purpose in your mind was clearly to keep him in view?
A. Yes.
Q. To see where he went?
A. To see where he went.

The findings of the Coroner

The Coroner summarised the evidence of the events leading up to the collision (commencing at p. 845 of Exh. A):

Constable Jacob Strzelecki said that he was the driver of GV37 on 8 October 2013. He had commenced his shift at 2pm that day. He said that before 2013 he had become aware of motorised bikes and their dangers. He was also aware that, depending on the capacity of the engine, they might be unlawful to ride on the road. He had had no previous dealing with James. He said that about 9.15pm a motorised bike crossed harshly from the left to right side of the road in front of his vehicle onto Miller Road. The bike was not exceeding the speed limit but because of the manner of the riding he decided to try and stop and speak to the rider.
Strzelecki said that as he turned into Miller Road he put his police lights on for 2-3 seconds and then he followed that with both his lights and siren. He said that the rider looked back at the police car and then 'took off.' Strzelecki said that he realised the rider was not going to stop so he turned off the lights and sirens but continued to followed the bike. He decided not to commence a pursuit because he considered it (sic) too dangerous to do so.
The rider continued along Miller Road and then turned into Southdown Street. Strzelecki said that he followed the rider into Southdown Street so that he could see where the rider was going in order to advise other police in the area to look out for him. At the time the rider was pulling away from the police car.
As Strzelecki was driving up Southdown Street he observed the bike enter Banks Road and the subsequent collision. At the time of the collision his vehicle was about 50 metres away from the bike. He drove to the intersection, stopped his vehicle and then rushed to the rider to render aid. Ambulance officers were also called to assist. He estimated that there was a period of between 10 to 15 seconds when he turned off the lights and sirens on his vehicle and the collision occurring.
Constable Miguel Davila gave evidence that on 8 October 2013 he was working in police vehicle GV37 with Constable Strzelecki. He had had previous dealings with James but did not know that James was involved in the events of the evening until after they had occurred. He was also aware of motorised bikes and understood that they might be illegal depending on the size of the motor. He thought that they were dangerous.
He said that he saw the motorised bike in front of them in Cartwright Avenue. As they approached Miller Road the bike veered in front of their vehicle. He observed that the rider was not wearing a helmet, and there were no light reflectors on the bike. The police vehicle followed the bike. Davila said he thought that the police vehicle was doing about the speed limit (50km/ph) and that the bike was going a little bit faster.
He said that the police vehicle turned into Miller Road and caught up to the bike near the intersection of Ryeland Street with Miller Road. The police vehicle was in the left lane of the road and the bike was in the right lane of the road. He said that Strzelecki turned the lights on for 2-3 seconds and then the 'yelp' siren for 3 or 4 seconds. Both lights and sirens were then turned off. He saw the rider turn around look at them and then travel down Miller Road at speed.
Davila said that the police vehicle then slowed down to between 20 and 30 km/ph and the bike moved away from their vehicle. They followed the bike into Southdown Street. As the bike entered the intersection with Banks Road he saw it come into collision with another vehicle. He did not know exactly but thought that it was about a minute between the lights and siren being turned off and the collision. He did not think that the police vehicle was in pursuit of the bike at any time.

Having summarised the other evidence before him, the Coroner then said (commencing at p. 851):

James’ death is undoubtedly a tragedy for both his family and the community in general. His death was completely avoidable. It came about as a consequence of youthful bravado mixed with access to an inherently dangerous piece of machinery. …. I accept that in the circumstances it was reasonable and appropriate for officer Strzelecki to try and stop James in order to talk to him about his riding and the bike. I accept that GV37 followed James in to Miller Road and whilst following him officer Strzelecki used the police red and blue warning lights and then the police siren in order to indicate to James that he should stop. I also accept the evidence of officers Strzelecki and Davila that at about that time James looked around at the police car and then rode off at speed. I am satisfied that James was aware of the presence of the police, that he understood that they wanted him to stop for them and that he then decided to try and avoid doing so.

….
I accept the evidence of officers Strzelecki and Davila that after the police warning lights and sirens were discontinued the police car slowed down but still followed James but at an ever increasing distance, from Miller Road into Southdown Street. I am satisfied that James rode out of Southdown Street across Banks road into the path of a vehicle driven by Mrs Nguyen resulting in the collision of the two vehicles and James being thrown from the bike into the path of the vehicle driven by Mr Al-Achrafe. There is nothing in the evidence available to me to suggest that Mrs Nguyen or Mr Al-Achrafe were in any way to blame for the collision or the injuries that James suffered. The evidence makes it apparent that there was nothing either of them could have done to avoid the collision.

The Coroner then continued (at p. 852):

James’ death was completely unavoidable but unfortunately a product of his own actions. I have no doubt that James was seeking to avoid contact with the police who had directed him to stop so that they could speak to him. As I have already said I am satisfied that it was reasonable for officer Strzelecki to try and get James to stop. I accept the evidence of officer Strzelecki that, when he concluded that James was going to ignore the direction to stop, he decided that he would not pursue him because it was too dangerous to do so. I also accept that officer Strzelecki then slowed his vehicle but followed James in order to see where he was intending to go. I am satisfied that this was a reasonable course of action for him to take in the circumstances.

The Coroner then turned to the issue of compliance, by the police, with the Policy (commencing at p. 852):

During the inquest counsel for James' mother submitted that officers Strzelecki and Davila failed to comply with (the Policy) in their interaction with James on the evening of 8 October 2013 and that I should recommend that they be disciplined for that failure.
It was submitted that the events as occurred amounted to a pursuit under (the Policy) and that the officers failed to comply with their obligations when engaged in a pursuit. (The Policy) is the policy of the NSWPF which, among other things, governs the use by police officers of police vehicles. Of relevance to this consideration the policy provides a series of obligations that a police officer who engages in a pursuit must comply with. Those obligations are, in general, established to ensure that officers engaged in pursuits are accountable and that more senior officers are aware of what is occurring and are able to intervene if it is thought appropriate to do so. It is not necessary for my purposes for me to outline in detail the various obligations that an officer is required to comply with in the event that he or she engages in a pursuit.
It was submitted that the events on the evening of 8 October 2013 amounted to a pursuit as defined by (the Policy) and that officers Strzelecki and Davila failed to comply with their obligations under the policy.
(The Policy) defines a 'pursuit' in the following terms:
PURSUIT: A pursuit commences at the time you decide to pursue a vehicle that has ignored a direction to stop.
An attempt by a police officer in a motor vehicle to stop and apprehend the occupant(s) of a moving vehicle when the driver of the other vehicle is attempting to avoid apprehension or appears to be ignoring police attempts to stop them.
A pursuit is deemed to continue if you FOLLOW the offending vehicle or continue to attempt to remain in contact with the offending vehicle, whether or
not your police vehicle is displaying warning lights or sounding a siren.

It was accepted by counsel for James' mother that it was reasonable for officer Strzelecki to direct James to stop. It was also accepted that the use of the warning lights and siren constituted a direction to stop and that on the evidence available James was aware of the direction to stop and ignored that direction. The point of the submission was that to follow James after he ignored the direction was to continue a pursuit and as such the obligations that arise in a pursuit come into force and that the officers failed to comply with those obligations.
I do not accept this submission. A pursuit can continue only after it has commenced. It can only commence it (sic) the officer decides to commence a pursuit after a vehicle has ignored a direction to stop. In this case I accept the evidence of officer Strzelecki that, after he concluded that James was ignoring the direction to stop, he specifically decided not to engage in a pursuit. The pursuit having not commenced it could not be continued by the officers following him as they did. I do not consider that the evidence displays any failure on the part of either officer to comply with (the Policy) on the night of 8 October 2013.

SUBMISSIONS OF THE PARTIES

Submissions of the plaintiff

Counsel for the plaintiff submitted that the Coroner’s findings disclosed error because they failed to have regard to the second paragraph of the definition of “pursuit” as it appears in the Policy (as set out at [24] above). It was submitted that there was no rational or logical relationship between the first two paragraphs of the definition, and that they should be interpreted as referring to separate scenarios which described the circumstances in which a pursuit could commence. It was submitted that if the Coroner’s finding that a pursuit could only commence upon a decision being made to do so by a police officer was correct, the second paragraph of the definition would be otiose.
It was further submitted that such an approach was consistent with the objectives of the Policy. It was submitted that if the Policy was read in a way that rendered the subjective intention of a police officer a pre-requisite of a pursuit, it would lead to absurd (and dangerous) results, the most obvious being that an officer could choose to ignore the safeguards in the Policy on the basis that he or she did not regard himself or herself as being engaged in a pursuit.

Submissions of the Attorney-General

Counsel for the Attorney-General submitted that the plaintiff’s interpretation of the Policy should be rejected because (inter alia):

by reference to the text of the Policy, a pursuit could only commence upon a decision being made to pursue a vehicle that had ignored a direction to stop;

the plaintiff’s interpretation of the Policy gave rise to uncertainty as to when a pursuit commenced which, it was submitted, was a result which was to be avoided in light of the danger inherent in police pursuits;

there was nothing within the text of the relevant provision in the Policy which indicated that a pursuit could only be said to have commenced if one, some, or all of the paragraphs were satisfied; and

the distinction drawn (in the terms of the Policy) between a decision to pursue on the one hand, and the deemed continuation of a pursuit on the other, implied that the draftsperson had turned his or her mind to the difference between the two, and had determined that a positive decision was required to commence the pursuit.

It was submitted that in these circumstances the plaintiff was not able to identify any error in the Coroner’s construction of the Policy.

Submissions of the Commissioner

It was submitted on behalf of the Commissioner that the Coroner’s conclusions disclosed no error, and that the meaning of the word “pursuit” was to be derived from the text in which it appeared. It was submitted that the Coroner’s findings were consistent with the terms of such text.
Counsel for the Commissioner submitted that the plaintiff’s construction of this part of the Policy proceeded on the erroneous basis that the second paragraph of the definition identified an alternative, and independent, set of circumstances constituting the commencement of a pursuit. It was submitted that such an interpretation should be rejected because:

the first paragraph expressly identified when a pursuit commenced;

the second paragraph did not do so, and should therefore not be read as being directed to that purpose;

the second paragraph was to be naturally read as identifying certain circumstances in which a vehicle had ignored a direction to stop for the purposes of the first paragraph; and

the plaintiff had made no attempt to articulate what meaning the second paragraph was said to bear, if it was said to identify discrete set of circumstances in which a pursuit had commenced.

CONSIDERATION

The Policy plainly states that a pursuit commences when a decision is made to pursue a vehicle that has ignored a direction to stop. That contemplates three steps, namely that:

a direction to stop is given to the driver of the vehicle;

the direction is ignored; and

a decision is made to pursue the vehicle.

In the present case it was Constable Strzelecki’s evidence that he informed the deceased that he wished him to stop by activating the lights and siren on GV37. That was ignored by the deceased, who in fact sped up. Constable Strzelecki was adamant that he had made a conscious decision not to pursue the deceased, at about that point. The Coroner accepted that to be the case.
There are many reasons why, as a matter of sensible police practice, the decision as to whether or not to commence a pursuit in circumstances of the kind which prevailed in this case would be left to a person in the position of Constable Strzelecki. There also exist good reasons of public policy why there should be a clear definition as to the point at which a pursuit commences. It is clear from Constable Strzelecki’s evidence that at any given time, there may be a variety of prevailing factors to be considered in determining whether to institute a pursuit. That this is so is reflected in paragraph (1) of the Pursuit Guidelines (at [25] above). Constable Strzelecki was clearly in the best position to consider and weigh those factors. Far from producing the absurd result suggested by counsel for the plaintiff, the Coroner’s findings sensibly recognise, consistent with the terms of the Policy, that a determination of whether to commence a pursuit is a matter for the officer who is, as it were, “on the ground” at the time.
The evidence of Constable Strzelecki in these respects was entirely compelling. It was clearly open to the Coroner to accept that evidence, and he did so. Having done so, it was also clearly open to the Coroner to conclude, by reference to terms of the Policy, that no pursuit had commenced.
The logical construction of the second passage of the definition of pursuit in the Policy is that it seeks to amplify and illuminate circumstances in which a vehicle has ignored a direction to stop. The clear and unequivocal terms of the first paragraph require a positive decision to be made to engage in a pursuit. Paragraph (2) should not be read as identifying some other set of circumstances in which a pursuit could be said to have been commenced.
The Coroner’s interpretation gives effect to the plain words of the Policy and his assessment of the evidence of Constable Strzelecki was clearly open. For all of these reasons, this ground is not made out.

There was an insufficiency of inquiry by the Coroner into the issue of whether a police pursuit was commenced by Constable Strzelecki, particularly in circumstances in which counsel for the plaintiff was not permitted to continue to cross-examine Superintendent Johnson on this issue.

The evidence

I have set out the evidence of Constables Strzelecki and Davila in respect of the issue of whether there was a pursuit in my consideration of the first ground. I have also set out (at [49] – [52] above) the Coroner’s summary of the evidence along with the findings which are relevant to this ground.
A statement of Det. Superintendent Johnson formed part of the evidence before the Coroner. Det. Johnson had been the Commander of the Green Valley Local Area Command since 26 September 2011, which covered the location at which the deceased was killed. At paragraphs 2 and following of his statement, he explained that as the Local Area Commander, he had the responsibility for regularly attending numerous community meetings, including those of a group known as to “2168 Management Committee” which comprised representatives and officials from various agencies. This committee was established in 2002 with a view to improving services, facilities and opportunities for the residents within the area covered by the 2168 postcode. Det. Johnson explained that the subject of persons riding motorised pushbikes had been raised at those meetings on a number of occasions, and that local residents had aired their concerns about the way in which such bikes were ridden, the danger that they posed to pedestrians, the noise they emitted, the speed at which they were ridden and the young age of the riders.
Det. Johnson observed that during the two year period leading up to the death of the deceased there had been a significant increase in the use of motorised pushbikes in the area, both on the roadway and on footpaths. He described having observed the pushbikes being ridden in what he regarded as a dangerous manner, in complete disregard of prevailing traffic conditions and road rules.
In paragraph 8 of his statement, Det. Johnson said:

I have advised my officers both in person and via email that they should not engage in a pursuit of a (sic) motorised pushbikes due to the potential dangers posed to riders of these vehicles due to their potential speed and lack of safety equipment fitted to the motorised pushbikes.
Further, the legislation to the use of the motorised pushbikes on public roads was not clear and the onus of prove (sic) relies upon police to prove that the motor is over 200 watts.

Det. Johnson gave evidence (commencing at p. 786). In answer to questions from counsel assisting the Coroner he expanded upon various aspects of his statement, particularly as to the dangers posed by Gasmans. Counsel then turned to the contents of paragraph 8 of his statement set out at [68] above (commencing at p. 792 L6):

Q. Just starting with orally, how had you advised your officers prior to October 2013?
A. By a change of shift parades, we have a change of shift parade each morning and afternoon or evening, I attend those occasionally and I raised the issue there that in my opinion seeing the way these bikes are being ridden on the public it would be dangerous to engage in a pursuit.
Q. When you express your opinion to officers do you expect that they will
follow your direction?
A. That's not a direction, it was my opinion and the opinion is if somebody is
riding dangerously, if they can stop them safely that is not an issue. If they
continue riding dangerously and they have not committed any other serious
offence I would expect that they would not engage in a pursuit.
Q. Would you also express what you just said there, that you would expect they would not engage in a pursuit, did you express that in emails?
A. I sent out an email, yes.
Q. When did you do that?
A. I would have been early 2002 when I actually went out and spoke to these young kids.
Q. Who did the email go to?
A. It would have gone to everyone in the command, if I can expand on that. I send out an email to all my staff once a month advising them of the changes in staffing, personnel transfers in and out, crime issues, finance issues that impact on the command and any other issues that come up.
Q. Do you expect those emails to be read?
A. Well we - modern day policing is that there is numerous methods of
communication, emails is one. The pressure is on for police to get out on the road and be proactive and attend jobs, it's not always practical to be able to look at everything that you get.
Q. I think you said earlier that you sent that email out in early 2002, did you mean early 2012?
A. Sorry, 2012 yes.
Q. Do you have a copy of that email that you sent out?
A. I do not.
Q. Have you looked for a copy of that email-
A. I have.
Q. —to provide to the officer in charge of this coronial investigation?
A. I have.
Q. And you couldn't find it, is that right?
A. No, our systems changed over probably 12 months ago, everything that I had saved in folders in my own P drive have been lost and unfortunately I've got to do that again this week because we're changing another system this week.
Q. Superintendent, you said earlier it wasn't a directive that you were giving to police orally or in an email, that you were expressing what your expectation would be--
A. That was--
Q. --in those circumstances?
A. It was my opinion only, yes.
Q. But if you are telling officers what your opinion is in those circumstances
you would expect that they would follow your advice wouldn't you?
A. In many circumstances I would expect that, yes.

The questions then turned to the circumstances of the deceased’s death (commencing at p. 793 L25):

Q. I'm going to ask you to assume a number of things and then ask you to comment, assume in this case that the two officers noticed James on his bike and thought that he was riding in a way that was dangerous to him potentially. Can you assume that both officer, Strzelecki and Davila thought that James should be pulled over and that one thought the bike was illegal?
A. I'm not sure what they were thinking but certainly if that happened to me I would attempt to pull over the young person.
Q. Can you then assume that after following for a short time behind the person riding the bike lights and sirens were activated for about five seconds?
A. Yes.
Q. That was appropriate so far, is that right?
A. Yes, that seems appropriate to me.
Q. And in accordance with any opinion that you would express?
A. That's correct.
Q. Can you assume then that after the police flashed the lights James looked behind and then took off and then the siren was sounded?
A. Yes.
Q. Appropriate so far?
A. Yes.
Q. Assume then that police officers thought that James was deliberately trying
to evade them when he took off having looked behind. Assume that police drove within the speed limit and followed in the direction James was going for another ten seconds and that police had their headlights on in a dark area so that it would have been obvious to James that they were following him and we know that no pursuit was called in. Do you have any comment to make on the appropriateness of the behaviour of police in those circumstances?
A. Being in the police for 41 years that would be the actions I would take, I would follow the person simply for the fact is and I wasn't aware of the brief prior to yesterday, he was carrying a backpack, he could have been committing another offence, it would have been interesting to follow him.
Q. Assume no backpack was noticed at that stage and that police followed him because of the issue of him being on a motorised bike?
A. If I - backpack, take the backpack out, I would still follow, see where he went to, if he pulled into an address nearby it would be the opportunity to go and speak to the person and possibly family and provide some advice.
Q. How do you reconcile that with your opinion that it's dangerous for police to pursue people riding these bikes?
A. I read that as there was no pursuit.
Q. Just put aside the term pursuit and you accept don't you that police followed James after turning their lights and sirens off, given the evidence you've heard?
A. Yes.
Q. Do you think it was appropriate for them to follow James in those circumstances?
A. I think it is, as I said, I've stopped thousands of motor vehicles over the years and people don't always realise that they are being pulled over, lights and sirens may be going for a couple of minutes before they realise that it's them that they - the police wish to stop.

The Coroner then intervened (commencing at p. 795 L45):

Q. So the policy says, "A pursuit commences at the time you decide to pursue
a vehicle that has ignored a direction to stop." Now that's the definition of a pursuit. Now if we infer that - if we accept that the police officers concerned

formed the view that James had ignored the direction to stop but they
continued to follow him nonetheless. Is it your view that their action comes
within that definition, or their continued action?
A. In my opinion and experience it is not a pursuit initiated, it was certainly an attempt to stop the young person, when he did not stop they turned off lights
and sirens from what I understand and did not engage in a pursuit in the initial
part, they just attempted to stop him.
Q. Then it goes on to say, "A pursuit is deemed to continue if you follow the offending vehicle or continue to attempt to remain in contact with the offending vehicle whether or not your police vehicle is displaying warning lights or sounding a siren"?
A. That's correct. My interpretation from the evidence so far that they did not
engage in a pursuit in the first instance they attempted to stop the vehicle and then turned everything off.
Q. So--
A. So--
Q. --your saying that the third part of that definition doesn't apply because the first part didn't exist?
A. That's my interpretation your Honour.

Counsel then appearing for the plaintiff then questioned Det. Johnson as to (inter alia) his understanding of the policy (commencing at p. 801 L38):

Q. You'd agree, wouldn't you, that for something to be a pursuit under the definitions in the safe driving policy police don't necessarily have to have their lights on or sirens for there to be a pursuit?
A. Technically they do not but they - I would expect that they would always have their lights and sirens on.
Q. Or they should have their lights and sirens on if they're engaging in a pursuit, shouldn't they?
A. That's correct.
Q. And they should radio it in--
A. That's correct.
Q. --if they're engaging in a pursuit, but if they don't radio it in it doesn't mean that it's not a pursuit?
A. That's correct.
Q. If they don't have their lights and sirens on it doesn't mean it's not a pursuit?
A. That's correct but they'll be in breach of the policy.
Q. A pursuit doesn't necessarily involve exceeding any speed limit, does it? A. That's correct.

Shortly after that, the Coroner intervened and the following exchange took place between his Honour and counsel for the plaintiff (commencing at p. 802 L14):

HIS HONOUR: Mr Wilson, aren't we getting into a discussion that you and I -well - and others will have later?
WILSON: We are, your Honour, but if I'm going to be submitting to
your Honour that there is a systemic problem in the police force that people at the level of superintendent don't understand their own policy then I think in fairness I should give this superintendent the opportunity to--
HIS HONOUR: Well, I think that would be outside my ambit. My function is to look at this particular moment in time. I've not got Royal Commission powers or resources to make such a finding and I would not even contemplate starting to think about it.
WILSON: We will take it down to the local area command level. This occurred in the local area command.
HIS HONOUR: Well, I am not even going to investigate the Green Valley Local Area Command. What I'm interested in is looking at the factual circumstances of this case.
WILSON: Yes, your Honour.
HIS HONOUR: And determining whether or not - acknowledging that it comes within the terms of my Act--
WILSON: Yes.
HIS HONOUR: --then look at the actions of the various officers and various other participants.
WILSON: Yes, your Honour.
HIS HONOUR: And to determine manner and cause of a death in this tragic case.
WILSON: Indeed, your Honour. There's another reason--
HIS HONOUR: It is extended to some extent but I don't want to go down a long journey.
WILSON: Certainly, your Honour, might I say this, one of the issues that's been identified in this case is whether there was a pursuit.
HIS HONOUR: Yes.
WILSON: Your Honour indicated that you would be assisted by this experienced officer's views about that. He's expressed those views.
HIS HONOUR: He's expressed the views, yes.
WILSON: And in my submission it is appropriate for those views to be tested.
HIS HONOUR: Well, he's expressed the views. At a later time you can tell
me, submit to me, and I might agree with you, that he's wrong, but now I know what the superintendent's views are--
WILSON: Yes.
HIS HONOUR: --he's not a person of interest.
WILSON: Certainly, your Honour.
HIS HONOUR: He's expressed a view, which I might disagree with or I might agree with, who is to know.
WILSON: Certainly.
HIS HONOUR: But I am going to be assisted by you in that regard more than with no disrespect, superintendent-
WILSON: Yes, thank you, your Honour. Yes, your Honour, in that case I will leave that to submissions, thank you, your Honour.

Submissions of the parties

Submissions of the plaintiff

Counsel for the plaintiff submitted that the findings of the Coroner reflected an “insufficiency of inquiry into the actual framework against which the police operation should have been assessed”. It was submitted that such insufficient enquiry was illustrated by the Coroner’s refusal to allow counsel to continue his cross-examination of Det. Johnson which, it was submitted, was directly relevant to the issue of the proper construction of the Policy, as well as to the issue of how police officers were trained to apply it. It was submitted that there were two consequences of such insufficient enquiry, namely that:

the specific actions of the police officers were not properly scrutinised; and

the effectiveness of the Policy, and public safety issues associated with police driving, were not properly considered, resulting in the Coroner failing to properly exercise his powers under s. 82 of the Act.

Submissions of the Attorney-General

Counsel for the Attorney-General submitted that a considerable amount of the evidence before the Coroner went to the issue of whether or not Constable Strzelecki had commenced a police pursuit. It was submitted that in conducting the inquest, the Coroner was under an obligation to consider (inter alia) the factual circumstances leading up to the collision, to interpret the Policy, and to then apply the Policy to the facts found. It was submitted that ultimately, the proper construction of the Policy was a matter for the Coroner, and that any opinion advanced by Det. Johnson was of limited assistance in relation to that determination.
It was further submitted that the Coroner had indicated to counsel for the plaintiff that construction of the term “pursuit” was, in effect, an issue which was more appropriately dealt with in submissions, and that the transcript reflected that counsel for the plaintiff had utilised the opportunity provided to him at that time to make such submissions about the construction of the Policy, and its application to the facts.

Submissions of the Commissioner

It was submitted that the Coroner was under no statutory obligation to set out all of his reasons for his findings and recommendations, and that in these circumstances no inference should be drawn that the Coroner had failed to consider the entirety of the definition of pursuit (particularly in circumstances where he set out the entirety of such definition in his reasons).
It was further submitted that there was no error in the Coroner expressing doubt about the relevance of the opinions of Det. Johnson as to the meaning of the Policy. This, it was submitted, was because the Policy was to be construed according to its terms, and not according to the opinion of a police officer.
It was submitted, in particular, that the plaintiff had not pointed to any material evidence which could have been given by Det. Johnson regarding the meaning of any provision of the Policy, let alone any evidence which gave rise to any real possibility that different findings and recommendations would have been made by the Coroner had any further evidence been given. It was submitted that beyond mere speculation, the plaintiff had advanced no reason why any further cross-examination of Det. Johnson would have led to particular consequences, or why such matters as may have been sought to be put to him in further cross-examination were not otherwise sufficiently addressed in the course of the inquest, and in final submissions.
Finally, it was submitted that the plaintiff’s complaint under this ground effectively amounted to a challenge to an interlocutory decision to reject a particular line of questioning. That, it was submitted, was a matter in respect of which this Court would be extremely reluctant to intervene, particularly in respect of a decision made by the Coroner, who was not bound by the rules of procedure and evidence. More generally, it was submitted that there was nothing advanced by the plaintiff which established any failure on the part of the Coroner to make some inquiry which any reasonable Coroner would have made.

CONSIDERATION

The issue of whether a police pursuit was commenced was to be determined, at least in part, by the acceptance or rejection of the evidence of Constable Strzelecki. The Coroner accepted such evidence, as he was entitled to do. His Honour’s findings reflect a consideration of both the evidence and the submissions of the parties. The extent of his Honour’s treatment of the evidence, as well as the findings themselves, are fundamentally at odds with the proposition that the enquiry was in some way insufficient.
His Honour curtailed the examination of Det. Johnson in circumstances where that officer had already given evidence expressing his opinion in respect of a number of aspects of the use of Gasmans within the area of his command. Even allowing for the fact that the Coroner was not bound by the rules of evidence, any assistance to be gained from the opinions of Det. Johnson as to the interpretation of the policy was limited to say the least. Moreover, the Coroner did not “shut down”, as it were, the plaintiff’s cross-examination of Det. Johnson. Counsel then appearing for the plaintiff accepted the opportunity extended by the Coroner to address the issue in final submissions.
The approach taken by the Coroner to the evidence of Det. Johnson was one which was entirely open to him. It is also important to bear in mind that prior to his Honour’s intervention, considerable scope had been given to Counsel in his cross-examination of Det. Johnson. Counsel for the plaintiff before me did not articulate how any further cross-examination would have assisted the Coroner in reaching any relevant conclusions.
It follows that this ground is not made out.

It was not open to the Coroner on the available evidence to determine that there had been no police pursuit prior to the death of the deceased

Additionally, or in the alternative, the Coroner failed to properly weigh the evidence available which supported a finding that a police pursuit had commenced prior to the death of the deceased

The evidence

I have already set out the salient parts of the evidence of Constables Strzelecki and Davila which are relevant to this ground.

The Coroner’s findings

I have set out his Honour’s findings at [49]-[52] above.

SUBMISSIONS OF THE PARTIES

Submissions of the plaintiff

Counsel for the plaintiff submitted that the Coroner’s findings did not adequately reflect the detailed evidence given in the course of the inquest. It was submitted that in a number of respects, the Coroner had failed to undertake a sufficient analysis of the evidence and that as a consequence, his findings were imprecise. It was submitted that “the weight of the evidence demonstrated” that:

upon sighting the deceased, Constable Strzelecki decided to attempt to stop him;

he initially communicated this by activating his police lights;

both Constables Strzelecki and Davila formed the view that the deceased was aware of the lights, and the fact that the lights represented a direction to stop;

the deceased continued at the same speed;

both officers concluded that he was not going to comply with the direction of which he was aware;

Constable Strzelecki then made a further attempt to stop the deceased by using the “yelp” siren from GV37, such attempt having no effect upon the deceased;

a further attempt was made to make the deceased stop by the activation of the full sirens which did not meet with any response; and

the lights and siren were deactivated, but the police car continued to follow the deceased.

It was submitted that these events fell squarely with the definition of “pursuit” contained in the Policy, and that they had not been properly considered by the Coroner.

Submissions of the Attorney-General

Counsel for the Attorney-General submitted that the plaintiff’s position in respect of these grounds proceeded on the assumption that the submissions advanced in support of the first ground were upheld. It was submitted that in these circumstances, if ground 1 was dismissed this ground also fell away.

Submissions of the Commissioner

Counsel for the Commissioner also submitted that the arguments advanced by the plaintiff in respect of these grounds only became material if it were concluded that the Coroner had erred in the way in which the plaintiff had contended in respect of the first ground.
In addition, counsel for the Commissioner pointed to the fact that the plaintiff had advanced four particular assertions in support of these grounds, namely that:

the Coroner’s findings regarding Constable Strzelecki’s conduct did not reflect the evidence given by Constable Strzelecki in evidence during the inquest;

the Coroner’s findings regarding Constable Davila’s conduct did not reflect the evidence given by Constable Davila in evidence during the inquest;

there had not been a sufficient analysis of the evidence; and

the weight of the evidence suggested that the events engaged the second paragraph of the definition of pursuit in the Policy.

It was submitted, for a number of reasons, that whether viewed individually or collectively, these matters did not give rise to any basis on which this court should intervene.
Firstly, it was submitted that the plaintiff was required to establish that a finding was not open before a factual dispute could engage the discretion in s. 85 and that, properly viewed, the suggestion that the Coroner’s findings were “not reflective” of the evidence was really a thinly disguised application for a merits review.
Secondly, it was submitted that the Coroner had the advantage of seeing the witnesses give evidence, and hearing submissions, over a number of days, and that the assertion that the Coroner did not conduct a sufficient analysis of the evidence did not engage any recognised category of appellate intervention.
Thirdly, it was submitted that in any event, the reasons given by the Coroner referred to each of the witnesses, and the key aspects of their evidence. It was submitted the Coroner had no duty to recite the entirety of the evidence, and that this Court should not apply an overzealous approach in scrutinising the Coroner’s reasons: Collector of Customs v Pozzolanic Enterprises Pty Limited (1993) 43 FCR 280 at 287.
Finally, it was submitted that these grounds, even if substantiated, only became material if the Coroner had erred in his construction of the Policy. It was submitted that for the reasons previously advanced his Honour did not do so.

CONCLUSION

To some extent these two grounds seek to re-agitate the plaintiff’s principal complaint regarding his Honour’s conclusion that no pursuit had been commenced. For the same reasons as those I have already expressed, the findings were clearly open to the Coroner in that respect and it is clear that his Honour took into account the evidence in reaching that conclusion.
Moreover, there is no merit in the suggestion that there was an insufficiency of enquiry. The Coroner’s findings are inconsistent with that assertion. The plaintiff’s case in this regard appeared to be predicated on the proposition that the Coroner’s reasons were to be minutely construed. That is not the proper approach.
Accordingly, neither ground is made out.

It was not open to the Coroner on the available evidence to determine that it was reasonable to follow the deceased into Southdown Street shortly before the accident resulted in his death

The Coroner’s findings

The Coroner’s findings relevant to this ground are set out at [49]-[52] above.

James' death was completely avoidable but unfortunately a product of his own actions. I have no doubt that James was seeking to avoid contact with the police who had directed him to stop so that they could speak to him. As I have already said I am satisfied that it was reasonable for officer Strzelecki to try and get James to stop. I accept the evidence of officer Strzelecki that, when he concluded that James was going to ignore the direction to stop, he decided that he would not pursue him because it was too dangerous to do so. I also accept that officer Strzelecki then slowed his vehicle but followed James in order to see where he was intending to go. I am satisfied that this was a reasonable course of action for him to take in the circumstances.

Submissions of the plaintiff

It was submitted by counsel for the plaintiff that the Coroner’s findings did not “represent a meaningful assessment of police conduct in this case”, that the Coroner did not go beyond assessing whether the police conduct was caught by the Policy, and that the Coroner had turned his mind only to the issue of whether or not police were engaged in a pursuit. That, it was submitted, left outstanding issues as to whether the actions of the police officers were appropriate, and whether it was reasonable for the police to follow the deceased as they did.

Submissions of the Attorney-General

Counsel for the Attorney-General submitted that it was important, when considering this ground, to read the impugned passages of the Coroner’s findings in its proper context. It was submitted that it was clear that the Coroner had concluded that when viewed as a whole, the course taken by the police was reasonable in the circumstances, including as it did a decision:

not to pursue the deceased because it was too dangerous to do so;

to slow GV37 down; and

to follow the deceased in GV37, in order to see where he was going.

It was further submitted that in order to properly consider this ground it was necessary to consider the nature of the Coroner’s task under s. 81 of the Act which is in the following terms:

81 Findings of coroner or jury verdict to be recorded
(1) The coroner holding an inquest concerning the death or suspected death of a person must, at its conclusion or on its suspension, record in writing the coroner’s findings or, if there is a jury, the jury’s verdict, as to whether the person died and, if so:
(a) the person’s identity, and
(b) the date and place of the person’s death, and
(c) in the case of an inquest that is being concluded-the manner and cause of the person’s death.
(2) The coroner holding an inquiry concerning a fire or explosion must, at its conclusion or on its suspension, record in writing the coroner’s findings or, if there is a jury, the jury’s verdict:
(a) as to the date and place of the fire or explosion, and
(b) in the case of an inquiry that is being concluded-as to the circumstances of the fire or explosion.
(3) Any record made under subsection (1) or (2) must not indicate or in any way suggest that an offence has been committed by any person.

It was submitted that the breadth of the term “manner and cause of the person’s death” was a wide one: Ex Parte Minister of Justice; re Malcolm; re Inglis [1965] NSWR 1598, and that due to the breadth of the term, it was necessary for the Coroner to exercise judgment and discretion in determining where the boundaries of the inquest lay, based on the facts and circumstances arising before him. It was submitted that the plaintiff had, in support of this ground, advanced a “broad and discursive argument” about the reasonableness of Constable Strzelecki’s conduct which went beyond the terms of the ground as it had been pleaded.

Counsel for the Attorney-General further submitted that on its proper construction, the policy did not prohibit a vehicle being followed where there had not been a pursuit, and that there was evidence to support the Coroner’s finding that the act of following the deceased was reasonable. This included the evidence of Constable Strzelecki that he had:

decided not to commence a pursuit;

discontinued the use of the lights and siren;

slowed GV37 down; and

controlled the speed of GV37 so as to create an increasing distance between GV37 and the deceased.

It was submitted that in all of the circumstances it was open to the Coroner to find that it was reasonable for Constable Strzelecki to have concluded that he should:

not engage in a pursuit of the deceased because it was too dangerous;

slow his speed; and

follow the deceased into Southdown Street to ascertain where he was going.

It was submitted that in determining the reasonableness of Constable Strzelecki’s actions, the Coroner had taken into account those factors which either increased or decreased the risk, and had weighed them in the balance. It was further submitted that neither the fact that additional steps could have been taken, nor that a different conclusion might have been open, was a basis for a finding by this Court that the conclusion reached by the Coroner was not open on the evidence.
Finally, it was submitted that the fact the plaintiff might be dissatisfied with a conclusion reached by the Coroner was not a proper basis on which to seek an order quashing an inquest, nor was it appropriate to quash an inquest on the basis that a different conclusion might have been reached on the evidence. It was submitted that the plaintiff was required to show that there was some error in the Coroner’s decision, and that she had failed to establish any error having regard to the terms in which this ground was pleaded.

Submissions of the Commissioner

Counsel for the Commissioner submitted that the Coroner’s conclusion that the conduct of the police was reasonable was an evaluative judgment, one which the Coroner was well positioned to make, and one which was clearly supported by the evidence. In support of that conclusion, it was submitted that there was obvious logic in a police officer slowly following a vehicle, driven by a person who had proceeded erratically and who had ignored a direction to stop, in order to ensure that other officers could be informed of the vehicle’s location.
Finally, it was submitted that this ground did not go to any particular finding made by the Coroner in the exercise of his power under s. 81 of the Act, but appeared to be addressed to a contention that the Coroner should have made some recommendation(s) under s. 82(1) criticising the officers involved. It was submitted that in light of the breadth of the Coroner’s powers under s. 82 of the Act, this Court would be cautious in quashing a decision because of an asserted failure on the part of the Coroner to make such recommendations.

CONSIDERATION

In my view, the entirety of the findings made by the Coroner were clearly open. On the evidence before him, the deceased was driving erratically, at speed, without lights, without safety devices, and with a clear intention of avoiding the police. Clearly, a pursuit of the deceased in the way contemplated by the Policy had the potential to cause great danger, not only to him but to other members of the public. The findings expressed by his Honour, following his analysis, of the reasonableness of the course taken by the police were findings that he was clearly entitled to make on the evidence.
The evidence of Constable Strzelecki was that he followed the deceased, at an ever decreasing speed and at an ever increasing distance. The purpose of doing so was to see where the deceased went so that Constable Strzelecki could inform others of his position.
In light of the evidence, I do not accept the submission made on behalf of the plaintiff that a vehicle cannot be “followed” without being “pursued”. Clearly, the Coroner accepted the evidence of Constable Strzelecki as to why he followed the deceased, and the manner in which he did so. Once again, the acceptance of that evidence was a matter entirely for the Coroner. Whilst Constable Strzelecki was clearly following the deceased, he was not “pursuing” him in the sense contemplated by the Policy because (inter alia) he had made a decision not to do so.
It follows that this ground is not made out.

The interests of justice require that the inquest be quashed and a new inquest held

Submissions of the plaintiff

It was submitted that in light of the recognised danger of police pursuits, the public was entitled to expect a “more sufficient line of inquiry” than that which had been followed by the Coroner, and that a more thorough inquiry was critical in light of the fact that this matter involved the death of young member of the community, in circumstances associated with an issue of significance, namely the use of motorised bicycles.
It was submitted that a decision that there be a new inquest was justified because there was evidence before the Coroner to the effect that:

the scenario of events leading up to the death of the deceased was a reasonably common one;

the dangers of such bicycles were well known; and

concerns about the safety of such bicycles were shared amongst a large number of people.

It was further submitted that there was no cogent evidence of the deceased being involved in any serious criminal behaviour, and that there was, as a consequence, a “strong argument” that the police officers had a heightened responsibility to ensure that their actions did not inadvertently increase the level of danger arising from the deceased’s use of a Gasman.
Finally, it was submitted that the findings of the Coroner did not meet the objective of fully examining and reviewing a death that occurred in the course of a police operation. This, it was submitted, had “stymied the potential for valuable lessons to be learnt from (the deceased’s) tragic death”.

Submissions of the Attorney-General

Counsel for the Attorney-General submitted that this ground relied, to a greater or lesser extent, upon some or all of the other grounds. It was submitted that in the event that I were to conclude that those other grounds had not been made out, this ground should also be rejected.

Submissions of the Commissioner

Counsel for the Commissioner submitted that even if a ground of intervention under s. 85 of the Act was made out, I would not be satisfied that it was necessary or desirable in the interests of justice to quash the Coroner’s decision and order a fresh inquest. A number of matters were advanced in support of that submission.
Firstly, it was submitted that there was a strong public interest in coronial decisions being final and that the public interest was not advanced by seeking to reopen decisions based upon what were only differences of opinion.
Secondly, it was submitted that the plaintiff had delayed the institution of these proceedings, in circumstances where there was a strong public interest in making prompt applications for review of administrative decisions.
Thirdly, it was submitted that the plaintiff had not taken any steps to seek to have the Coroner order a fresh inquest.
Fourthly, it was submitted that the Coroner’s approach disclosed no ambiguity in terms of the Policy, and that on the contrary, the effect of the Coroner’s decision was to give clear guidance as to its meaning.
Finally, it was submitted that the Coroner had turned his mind to recommendations which he saw as appropriate to make, and that the plaintiff’s case manifested no more than a “wish” that the Coroner had made further recommendations.

CONSIDERATION

Counsel for the plaintiff conceded that this ground encompassed, to a greater or lesser extent, the matters canvassed in the previous grounds. As none of those grounds have been made out it follows that this ground must meet with the same fate. However, some additional observations should be made in light of the submissions advanced on behalf of the plaintiff in support of this ground.
As I have previously outlined, in order for the plaintiff to succeed in these proceedings there must exist a reputable body of evidence which, if accepted, would indicate that the Coroner’s finding as to the manner and cause of death of the deceased was erroneous: Herron (per McHugh JA) at 617; Country Energy at [40]. For the reasons that I have expressed, there is no such evidence in the case. I can appreciate that in the circumstances, the plaintiff may be dissatisfied with the Coroner’s conclusions. However, mere dissatisfaction with a conclusion is not sufficient to engage the discretion conferred by s. 85 of the Act.
It may well be that the nature of the events leading up to the death of the deceased was a reasonably common one. It may also be the case that the dangers of Gasmans were well known to, and shared amongst, a large number of people within the community, including the police. None of those matters justify the making of the orders sought.
Moreover, even if it is accepted that the police officers involved had a heightened responsibility to ensure that their actions did not inadvertently increase the level of danger arising from the deceased’s use of the Gasman, there is nothing in the evidence to suggest that such a responsibility was other than fully and properly discharged. Indeed, the effect of the Coroner’s findings was that the police acted wholly responsibly, and that nothing that they did increased, be it inadvertently or otherwise, the level of danger which arose from the deceased’s actions. For the reasons that I have already expressed, those findings were certainly open.

ORDERS

I make the following orders:

The proceedings are dismissed.

In the absence of agreement, the parties are to provide to my Associate written submissions as to costs by 5.00pm on 17 May 2017, such submissions not to exceed two pages in length in each case.

**********

Amendments

25 May 2017 - Paragraph 7 - 1988 to read 1998

Decision last updated: 25 May 2017

Medium Neutral Citation:	Mauceri v Deputy State Coroner MacMahon and ors. [2017] NSWSC 545
Hearing dates:	20 April 2017
Date of orders:	10 May 2017
Decision date:	10 May 2017
Jurisdiction:	Common Law
Before:	Bellew J
Decision:	(1) The proceedings are dismissed. (2) In the absence of agreement, the parties are to provide to my Associate written submissions as to costs by 5.00pm on 17 May 2017, such submissions not to exceed two pages in length in each case.
Catchwords:	CORONERS – Application for an order quashing coronial inquest into death and ordering fresh inquest - Where juvenile killed whilst riding bicycle – Where Coroner found that police were not in pursuit – Whether finding open – Whether Coroner correctly interpreted provisions of relevant policy – Whether Coroner’s inquiry sufficient
Legislation Cited:	Coroners Act 2009 (NSW)
Cases Cited:	Burrell v R (2008) 238 CLR 218; [2008] HCA 34 Cecil v Attorney-General of NSW and anor [2012] NSWSC 1186 Collector of Customs v Pozzolanic Enterprises Pty Limited (1993) 43 FCR 280 Country Energy v Deputy State Coroner Paul MacMahon and anor [2010] NSWSC 943 Ex Parte Minister of Justice; re Malcolm; re Inglis [1965] NSWR 1598 Director-General Department of Community Services v Crombie [1998] NSWSC (unreported) 19 August 1998 Herron v Attorney-General of NSW (1987) 8 NSWLR 601 Veitch v The State Coroner [2008] WASC 187
Category:	Principal judgment
Parties:	Jo-Anna Mauceri – Plaintiff Deputy State Coroner MacMahon – First defendant Attorney-General of NSW – Second defendant NSW Commissioner of Police – Third defendant
Representation:	Counsel: J. Brock – Plaintiff S. Beckett – Second defendant D. Hume – Third defendant Solicitors: Legal Aid NSW - Plaintiff Submitting appearance - First defendant Crown Solicitor for NSW - Second defendant McCabes Lawyers - Third defendant
File Number(s):	2016/91690
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Coroner’s Court of NSW Jurisdiction: Coronial Inquest Date of Decision: 16 January 2015 Before: Deputy State Coroner MacMahon File Number(s): 2013/304282