Re the State Coroner
[2019] WASC 147
•14 MAY 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: RE THE STATE CORONER; EX PARTE LOOHUYS [2019] WASC 147
CORAM: ALLANSON J
HEARD: 18 & 21 JANUARY 2019
DELIVERED : 14 MAY 2019
FILE NO/S: CIV 2415 of 2017
EX PARTE
HENK LOOHUYS
Plaintiff
Catchwords:
Coroners - Application for new inquest - New facts or evidence - Whether new inquest necessary or desirable - Turns on own facts
Legislation:
Road Traffic Act 1974 (WA), s 59
Coroners Act 1996 (WA), s 25
Result:
Application dismissed
Category: B
Representation:
Counsel:
| Plaintiff | : | In person |
| Intervener | : | A Crocker for G Grant |
| Amicus Curiae | : | B D Nelson |
Solicitors:
| Plaintiff | : | In person |
| Intervener | : | Tindall Gask Bentley Lawyers |
| Amicus Curiae | : | State Solicitor for Western Australia |
Case(s) referred to in decision(s):
Director of National Parks and Wildlife v Baritt (1990) 102 FLR 392
Herron v Attorney General for New South Wales (1987) 8 NSWLR 601
Keown v Khan [1999] 1 VR 69
Re The State Coroner; ex parte The Minister for Health [2009] WASCA 165; (2009) 38 WAR 553
Veitch v The State Coroner [2008] WASC 187
ALLANSON J:
Mark Loohuys (the deceased) died on 18 February 2000. In 2003, the Deputy State Coroner conducted an inquest into his death.
The plaintiff is the deceased's father. The plaintiff is dissatisfied with the investigation of his son's death, the inquest, and the findings made by the coroner. He asks for orders declaring the findings are void, and requiring a new inquest into his son's death.
Background
The inquest was conducted on 11 to 14 February 2003 (inclusive) before the Deputy State Coroner. In these reasons I will refer simply to the coroner, except where quoting from documents that refer specifically to the Deputy State Coroner. All references to legislation are to the Coroners Act 1996 (WA) unless otherwise stated.
On 7 March 2003, the coroner produced a Record of Investigation of Death. Her Honour recorded the cause of death 'as a result of Head Injury'.[1]
[1] Record of Investigation of Death, 1.
In her conclusions, her Honour stated:
I find that on 18 February 2000 the deceased was on duty as a serving police officer in the Western Australian Police Service. He was a passenger in a police vehicle being driven by Constable Guy Grant.
At approximately 11:15 pm, while travelling under Priority 1 conditions, the vehicle went out of control and slid off the north eastern side of Great Eastern Highway, at the intersection of Park Road Exit No 3 and Hardey Road. After becoming airborne, the vehicle collided with at least one tree, coming to rest on its passenger side.
As a result of this collision, the deceased suffered serious injuries and died at the scene.
I find that the death arose by way of accident.[2]
[2] Record of Investigation of Death, 37.
The vehicle driven by Constable Grant had the call sign Juliet 435, and that is a convenient way to refer to it.
The Coroners Act
The Act distinguishes between the 'findings' and 'comments' made by a coroner.
Section 25(1) sets out that a coroner investigating a death must find, if possible:
(a)the identity of the deceased; and
(b)how death occurred; and
(c)the cause of death; and
(d)the particulars needed to register the death under the Births, Deaths and Marriages Registration Act 1998.
The coroner may also comment on 'any matter connected with the death'.
A coroner must not frame a finding or comment in such a way as to appear to determine any question of civil liability or to suggest that any person is guilty of any offence.[3]
[3] Section 25(5).
The findings of a coroner may be reviewed on application to the Supreme Court pursuant to s 52(2):
The Supreme Court may declare that some or all of the findings of the inquest are void and may order the State Coroner ‑
(a)to hold a new inquest, or direct any coroner, other than the coroner who held the first inquest, to hold a new inquest; or
(b)to re-open (or direct another coroner to re-open) the inquest and re-examine any finding.
'Finding' in s 52(2) has the same meaning as in s 25(1).[4]
[4] Re The State Coroner; ex parte The Minister for Health [2009] WASCA 165; (2009) 38 WAR 553 [51].
The court may only make an order under s 52(2) if it is satisfied that ‑
(a)it is necessary or desirable because of fraud, consideration of evidence, failure to consider evidence, irregularity of proceedings or insufficiency of inquiry; or
(b)there is a mistake in the record of the findings; or
(c)it is desirable because of new facts or evidence; or
(d)the findings are against the evidence or the weight of the evidence.
For matters that come within paragraphs (a) and (c), the court must make an evaluative judgment. For example, it is not sufficient that the court find there are new facts or evidence. The court must also make a judgment about whether an order to hold a new inquest is desirable.
The current application
On 23 August 2017, the plaintiff filed a notice of originating motion and explanatory letter seeking orders under s 52.
The Act prescribes no period within which an application under s 52 must be brought. In the present case it has been 16 years since the original inquest and 19 years since the deceased's death. The delay may be relevant to whether a new inquest is desirable, but is not itself a reason to refuse the application.
The application was not made in the correct form. On 15 November 2017, after hearing the plaintiff and clarifying what his intention was, I ordered that the originating motion and the plaintiff's letter were to be taken as an application for orders pursuant to s 52 that:
(a)the findings of the Deputy State Coroner, made on 7 March 2003, on an inquest into the death of Mark E Loohuys, as to how the death of the Deceased occurred and the cause of death be declared void;
(b)the State Coroner hold a new inquest or direct another coroner to hold a new inquest;
(c)alternatively, the State Coroner re-open the inquest or direct another coroner to re-open the inquest and re-examine the findings in [par (i)],
on the grounds that:
(d)it necessary or desirable because of consideration or failure to consider evidence, further or alternatively insufficiency of inquiry;
(e)it is desirable because of new evidence; and
(f)the findings are against the evidence or the weight of the evidence.
The application was served on the State Coroner who filed a notice of intention to abide on 28 November 2017.
On 16 January 2018, I granted leave to the State Solicitor for Western Australia to appear as amicus curiae.
Notice of the application was given to Constable Grant and, on 20 April 2018, I granted leave to Constable Grant to intervene.
In its role as amicus curiae, the Office of the State Solicitor prepared the evidence and record from the Coroners Court in a convenient form for the court and the parties, and counsel from that office provided detailed and balanced submissions for the hearing of the application. I am very grateful for that assistance.
The plaintiff challenged a range of issues and made the following complaints:
(1)the police had a conflict of interests in investigating the circumstances of the death because both the deceased and the driver of the vehicle were police officers;
(2)the expert who gave evidence was not independent because he carried out his investigations with the assistance of the lead investigator, Sergeant Trevor Thorpe, and had an ongoing relationship with the police service;
(3)the coroner failed to call some witnesses;
(4)the coroner failed to find where the death occurred;
(5)the finding that Constable Grant turned the vehicle because there was another vehicle ahead of him was against the weight of the evidence;
(6)the coroner erred in her findings about how the death occurred, and in particular in finding that speed was not the cause of the crash, and in finding that the driver lost control after turning to avoid another vehicle on the road.
The plaintiff also submitted that the investigation of the crash by the police was inadequate. In particular, he argued that the plan prepared by the police showed only part of the crash scene (approximately 95 m of marks on the road surface) and did not show other marks which had faded before they were recorded, or the area off the roadway where Juliet 435 travelled before it collided with a tree and came to rest.
Generally, the plaintiff submitted that the crash investigators were not held answerable for their actions and decisions by the coroner.
'Findings' and 'comments'
Under s 52(2) the court may declare that some or all of the findings of the inquest are void. In this application, the critical findings pursuant to s 25(1) are how the death occurred and the cause of death.
The meaning of those expressions was explained in Re The State Coroner; ex parte The Minister for Health. The obligation to find how death occurred
confers on the coroner the jurisdiction and obligation to find, if possible, the manner in which the deceased happened to die. This does not refer only to the means or mechanism by which the death was suffered or inflicted. It extends to the circumstances attending the death. [5]
[5] Re The State Coroner [2009] WASCA 165 [42].
The finding of cause of death, under s 25(1)(c), is not restricted by concepts such as 'direct cause', 'direct or natural cause', 'proximate cause' or the 'real or effective cause'.[6]
It will be necessary, in each inquest, to delineate those acts, omissions and circumstances which are, at least potentially, to be characterised as causing or a cause of the death of the deceased. This is to be undertaken by applying ordinary common sense and experience to the facts of the particular case. [7]
[6] Re The State Coroner [2009] WASCA 165 [44].
[7] Re The State Coroner [2009] WASCA 165 [47]
Before examining the findings made, it is necessary to consider the effect of Constable Grant's acquittal on the charge of dangerous driving causing death.
The charge against Constable Grant
Constable Grant, was charged with an offence under s 59 of the Road Traffic Act 1974 (WA), the particulars of which were that he 'drove dangerously by driving at a speed that was too great for him to maintain safe control of the vehicle in all the circumstances, including the likely need to negotiate other traffic and deal with potential hazards'.[8] The offence was indictable, but could be dealt with summarily. Constable Grant was tried before a magistrate. On 23 May 2001, the charge was dismissed
[8] Record of Investigation of Death, 12 -13.
On this application the court has no power to inquire into the criminal trial. The statutory jurisdiction that I am exercising is confined by s 52 of the Act. It is a limited review in relation to some or all of the findings of the inquest, nothing more.
But the trial of the charge against Constable Grant is relevant in another way. Constable Grant was charged with causing the death of the deceased by driving in a dangerous manner. Once informed of that charge, the coroner could not proceed with the inquest until proceedings in respect of the offence had been concluded.[9] The finding of the coroner 'must not be inconsistent with the result' of the proceedings on that charge.[10]
[9] Section 53(1).
[10] Section 53(2).
A criminal trial is concerned with criminal liability. When the word 'result' is used in relation to criminal proceedings it refers, in its natural meaning, to the conviction or acquittal of the person charged.
The result of the trial does not extend to particular findings of fact, or to the reasoning by which the result was achieved. If a charge is tried on indictment before a jury, there will be no record of the reasoning or findings which led to the result. A magistrate gives reasons and may, for example, comment on whether the prosecution had been able to prove some particular fact beyond reasonable doubt. But the magistrate's factual findings and comments are simply part of the process of reasoning by reference to the applicable standard of proof. They may explain the result, but they are not the result.
In the present case, the effect of s 25(5) and s 53(2) together is that the coroner's findings and comments could not be framed in such a way as to suggest that Constable Grant, or any other person, was guilty of an offence; and the findings as to how the death occurred and the cause of death could not be inconsistent with the result that Constable Grant is not criminally liable for causing the deceased's death by driving in a manner that was dangerous within the meaning of s 59 of the Road Traffic Act.
It was not open to the plaintiff to argue that the coroner should have found that Constable Grant caused the death of the deceased by a criminal act. And this court could not find that the coroner's findings are against the evidence or the weight of the evidence because her Honour did not make a finding that the Act prohibits.
Sections 25 and 53(2) do not, however, limit the inquiry. The coroner was not restricted in inquiring into matters that were relevant to the charge against Constable Grant, including the speed at which he was driving.
The inquest
The inquest was heard over four days between 11 and 14 February 2003. The coroner was assisted by counsel. The deceased's family, Constable Grant and the Commissioner of Police were represented.
Evidence was led first from Sergeant Trevor Thorpe, of the WA Police Service Major Crash Investigation Team. Sergeant Thorpe had been the investigating officer. Several exhibits were introduced through Sergeant Thorpe, including the reasons for decision and the transcript of proceedings from the trial of Constable Grant; and the report of an investigation by the police Internal Investigation Unit into the incident.
Sergeant Thorpe had also arranged for photographs to be taken at the scene of the crash, including photographs showing tyre marks and some gouge marks, and the final resting position of Juliet 435. He assisted the expert witness, Mr Robert Davey, who was engaged to prepare a report addressing matters including an estimate of the speed of Juliet 435 at the time Constable Grant apparently lost control of it.
Counsel assisting the coroner called 14 witnesses to give oral evidence. The statements of other witnesses were tendered without the witness being required to attend. None of the witnesses saw Juliet 435 immediately before the crash. None of the witnesses saw the crash, although one witness heard it.
The coroner heard evidence regarding the examination of Juliet 435 after the crash and evidence regarding an assessment of the Commodore V8 sedans in June 1998 which examined problems that had been reported by drivers.
Two witnesses were called to give evidence about the training of police drivers.
Two experts testified: Mr Davey and Mr Martin Simms.
Mr Simms had, earlier, been engaged by the Police Union and produced two written reports.[11] Mr Simms also prepared a later report on the instructions of the deceased's family, in which he considered Mr Davey's conclusions and made his own assessment of the speed of Juliet 435 immediately before the crash in which the deceased died.[12]
[11] Technical Factors Affecting The Safety Of Urgent Duty Driving 1997, exhibit 63; Initial Assessment Of High Speed Vehicle Accidents, 31 July 2000, Exhibit 64.
[12] Initial Assessment of the Speed of the Police Vehicle Involved in an Accident at Glen Forrest, 22 October 2002, Exhibit 65.
Constable Grant gave oral evidence at the inquest.
The issues at the inquest
The investigation into the death of the deceased raised issues regarding:
(1)the immediate cause of death;
(2)the granting of priority 1 authorisation to Juliet 435 and other vehicles;
(3)the manner in which Constable Grant was driving Juliet 435 immediately before he lost control of it;
(4) the circumstances which caused Constable Grant to lose control;
(5)whether the condition of Juliet 435 contributed to the crash;
(6)any general issues relating to the suitability of the Holden Commodore V8 5.7 litre sedan, model VT, for urgent or high speed driving;
(7)the training of police officers for priority driving; and
(8)the training Constable Grant received.
The coroner inquired into and made findings on all of those issues.
The coroner's findings
The finding about the immediate cause of death is not controversial. The coroner found that, as the result of a collision between Juliet 435 and a tree, the deceased suffered serious head injuries and died at the scene. The finding is supported by the report on post mortem.[13]
[13] Exhibit 52.
The coroner found that Juliet 435 and another police car, Juliet 442, were given Priority 1 authorisation to attend at the Chidlow Tavern, following reports of a male person threatening patrons with a firearm. The vehicles were authorised to use flashing emergency lights and sirens and no limit on maximum speed was specified.[14] The authorisation was downgraded to Priority 2 at 11.16.20 hours. The coroner found that it was likely that Juliet 435 had already crashed, and did not receive the communication downgrading the priority.[15] At the time of the crash, Constable Grant was authorised to drive under Priority 1 conditions.
[14] Priority 2 authorisation restricted the driver to no more than 20 kph over the posted speed limit: see Coroners Record of Investigation of Death, 4.
[15] Record of Investigation of Death, 15 -16.
The plaintiff challenged the coroner's findings on three particular issues: how fast Constable Grant was driving at the time of the crash; whether there was another vehicle ahead of Juliet 435 that caused Constable Grant to steer to the left; and whether the death of the deceased occurred by accident.
The speed of Juliet 435
One of the central issues in this application has been the coroner's findings regarding the speed of Juliet 435, both immediately before Constable Grant lost control and at the time of impact with curb and subsequently the tree.
No direct evidence of speed was available. The speed of the vehicle could only be estimated from the measurements made at the crash site. There were tyre marks on the road, described as yaw marks (marks caused when the vehicle is pointing at an angle to its direction of motion), showing the path of the car. Those marks have been interpreted by the expert witnesses as showing that the vehicle had been steered to the left when it was travelling so quickly that the available friction of the tyres on the road surface was not sufficient to keep it in the intended direction of travel.
It is unnecessary to detail the science behind or the method used in calculating speed from the marks on the road. It is sufficient to note that, according to the expert evidence at the inquest and in this application, a yawing vehicle travels in an arc. If you can determine the co-efficient of friction for that vehicle on that road surface, you can calculate its speed using a formula where the other variable is the radius of the arc.
The investigation of the crash had included skid tests, which enabled Mr Davey to calculate the co-efficient of friction for a similar police vehicle on the same stretch of road.
Mr Davey and Mr Simms gave differing interpretations of the recorded marks, different estimates of the radius of the arc of travel, and different estimates of speed.[16]
[16] Although there was also a slight difference in the estimate of the co-efficient of friction, the effect on the ultimate estimated speed was not significant.
Mr Davey, from manual measurements he made at the scene and from a supplied scale plan, calculated the radius of the arc at 192 m.
Mr Simms did not attend the scene, but worked from the site drawings prepared by the Police Forensic Surveying Unit and photographs taken at the scene.[17] In expressing his opinion, Mr Simms included several warnings, based on the limited information available. But, on the material he had, Mr Simms calculated an arc radius of 330 m.
[17] Exhibit 65, 4 - 5.
Mr Simms also used the results of the tests from which Mr Davey calculated the co-efficient of friction. Mr Simms chose a slightly higher number based on the average of all tests (Mr Davey used the lowest number).
The change in co-efficient of friction only slightly affected the result calculated for the speed of Juliet 435 when it began to skid. The difference in arc radius had a much greater effect. Mr Davey calculated a minimum speed of 129 kph. Mr Simms' opinion was that, at the time the driver lost control, the speed was 168 to 171 kph.
The coroner preferred the evidence of Mr Davey, 'as it was based on actual measurements taken by Mr Davey at the scene on 20 February 2000'.[18] Mr Davey gave evidence, accepted by the coroner, that the plan used by Mr Simms was 'merely a pictorial representation of the scene … [not] accurate enough to be utilised for precise mathematical equations'.[19]
[18] Record of Investigation of Death, 33.
[19] Record of Investigation of Death, 33.
While the coroner preferred the evidence of Mr Davey, her Honour accepted that, 'all methods of calculating the speed of vehicles will be open to question on some level'.[20] The coroner did not make a finding about how fast the car was travelling before the crash. Her Honour only found that the minimum speed of the car at the beginning of the yaw marks was 129 kph, and that it was going faster before the start of the marks.[21]
[20] Record of Investigation of Death, 33.
[21] Record of Investigation of Death, 35.
The reliability of Mr Davey's evidence was questioned in this application in the written and oral evidence of Dr Shane Andrew Richardson. I will deal later with Dr Richardson's evidence, as new evidence. On the evidence before the coroner, her Honour had a rational basis to prefer the evidence of Mr Davey to that of Mr Simms, and to accept Mr Davey's estimation of the minimum speed of the vehicle.
The coroner was also aware, on the evidence before her, that Mr Davey was putting forward a conservative estimate. That approach was dictated in part by Mr Davey's understanding that his evidence would be used in the criminal trial and his concern to give an estimate which he believed could be proved to the criminal standard.[22]
[22] See, for example, inquest ts 299 ‑ 300; Record of Investigation of Death, p 34.
The evidence before the coroner was sufficient to support the finding that her Honour made, particularly when it was so carefully couched as a finding of the minimum speed of Juliet 435 at the time when Constable Grant lost control. The finding was consistent with the evidence, and the weight of the evidence, including Constable Grant's own estimate of the speed he would have been travelling.
The coroner further said:
Even if I accept the vehicle was travelling faster than 129 kilometres per hour, prior to the 'scuff' marks, it does not cause me to conclude that speed was the cause of the motor vehicle crash …
All the evidence indicates a sharp turn of the vehicle led to the loss of control which suggests there was an object on the road that Constable Grant believed needed to be avoided. It is not consistent with the vehicle simply losing control as a result of taking the earlier bend at excessive speed.[23]
[23] Record of Investigation of Death, 36.
The plaintiff challenged that finding and appeared to characterise it as a finding that speed was not was relevant to the driver losing control of the vehicle. I do not understand the coroner's finding in that way. Her Honour clearly regarded speed as a relevant factor. The estimation of the speed of the vehicle by each expert was based on the conclusion that Juliet 435 swerved to the left at 'critical speed'. That is, when the driver turned, the car's speed was sufficient for it to slide rather than continue in the direction it was pointed. The question her Honour addressed was why the driver turned.
Was there another vehicle
The plaintiff challenged the finding that Constable Grant turned to avoid an object (another vehicle) on the road ahead. That finding was based on the evidence. Mr Davey and Mr Simms said there was a swerve or steer to the left. There was direct evidence before the coroner, in the testimony of Constable Grant, that he turned because there was another vehicle ahead of him.[24] Shortly after the incident, Constable Grant was interviewed at the hospital by Inspector Michael Rae. He told the inspector that he was travelling at approximately 135 kph when he swerved to avoid something, but he was then unable to remember whether it was a vehicle or something else.[25]
[24] Inquest ts 526 - 528.
[25] Inquest ts 10, 117.
There was an alternative possible explanation: that Constable Grant steered to the left because he had taken an earlier bend too quickly and the car was drifting to the right.
And there were aspects of the evidence which might cast doubt on the presence of another vehicle:
(1)Detective Booker and Constable Skelton, who were in a marked police car (Juliet 442) ahead of Juliet 435 made statements in which they said nothing about another vehicle. Detective Booker gave evidence at the trial of Constable Grant and did not refer to passing another vehicle. Neither witness was called at the inquest. Detective Booker was in Victoria, but his statement and the transcript of his evidence from the trial were tendered, together with the statement of Constable Skelton.
(2)William Harrison, a truck driver, was delivering bulk fuel to a service station on the corner of Great Eastern Highway and Hardey Road. Mr Harrison was close enough to where the crash occurred to hear the sound of the police car 'sliding across the bitumen' and the sound of an impact. Mr Harrison also testified in the trial of Constable Grant. He said that he saw three police vehicles, and heard the fourth (Juliet 435) but did not notice any other traffic. He also agreed that another car could have driven through without him seeing it.[26]
(3)No car stopped at the scene of the crash, and nobody later came forward as the driver of the other car.
(4)Constable Grant gave inconsistent evidence about how far ahead of him the other car was when he turned to avoid it.[27]
[26] Exhibit 56; Trial ts 34.
[27] Inquest ts 528 - 534; 568 - 571; 585.
This application is not, however, a rehearing. The coroner was aware of the evidence, and the alternative explanation for the swerve. Her Honour accepted the evidence of Constable Grant.
The finding of accident
The Coroners Act does not specify the findings that the coroner must make, beyond those identified in s 25. Specifically, the Act does not require the coroner to find whether the death was accidental, the result of misadventure, homicide, or otherwise. But findings have generally been expressed (and continue to be expressed) as death from natural causes; by accident, misadventure, suicide or homicide; or an open finding.
In this case, the cause of the deceased's death was known. Consistently with s 53, the proper finding was either death by accident or death by misadventure. There may be a logical distinction between a finding of accident and one of misadventure, the latter implying some intentional act not amounting to homicide. But, in practice, coroners have not drawn this distinction.[28]
[28] Matthews P and Foreman J C, Jervis on the Office and Duties of Coroners with Forms and Precedents, (10th ed, 1986) Sweet & Maxwell, 194; Purchase W B and Wollaston H W, Jervis on the Office and Duties of Coroners with Forms and Precedents (9th ed, 1957) Sweet & Maxwell, 181. And see Director of National Parks and Wildlife v Baritt (1990) 102 FLR 392, 395.
The finding that the death occurred by accident was clearly open and is consistent with the coroner's other findings regarding how the crash occurred.
Other issues at the inquest
The inquest dealt with the other issues. Evidence was led regarding the VT Model Commodore being driven by Constable Grant. The coroner referred to three reports which were tendered and related to possible difficulties with that model, specifically the power steering, suspension, and a tendency for drivers to understeer. The coroner also received evidence from some witnesses that they had experienced problems with that model.
In the Report of Investigation of Death, the coroner noted that Constable Grant did not suggest the crash arose from any problem with the handing of the vehicle. The vehicle examination detected no defects in the specific vehicle which may have contributed to the crash; the steering and suspension were damaged, but that damage was assessed as having been caused in the crash.
Finally the coroner noted that the particular model of vehicle was no longer used by the police service, nor were other types of V8 vehicle used.
The coroner specifically addressed a report prepared by Mr Simms relating to the safety of urgent duty driving, and made recommendations accordingly.
The coroner considered the instructions within the Western Australian police service regarding when and how urgent driving may occur, and the balance between attending an urgent incident and the safety of both officers and other road users.[29] The coroner received evidence regarding driver training courses within the police service, and specifically the course completed by Constable Grant in August and September 1999, and his performance on it. Her Honour found that there seemed to be strong support for the system of driver training received by Constable Grant. Her Honour did, however, refer to criticisms of the training including that none of the advanced training was conducted on public roadways and the length of the course.[30]
[29] Record of Investigation of Death, 14.
[30] Record of Investigation of Death, 20 – 23.
In summary, her Honour considered all of the issues arising on the evidence
The evidence of Dr Richardson
The plaintiff relied on new expert evidence, obtained after the inquest. Dr Richardson prepared a report, dated 1 October 2017, which was tendered in the action. He gave oral evidence explaining and expanding on that report.
Dr Richardson's reconstruction of what happened, including his calculation or estimate of speed, was based on measurements and information obtained in the initial investigation of the crash.
Dr Richardson concluded that Juliet 435 was travelling generally in an easterly direction when:
there has been a steering input to the vehicle and, as a result of that steering input, the vehicle has lost directional control and not only heading, continuing to head east, but it [is] also rotating. The friction between the road surface and the tyres has been exceeded so that the vehicle is now essentially sliding on the top of the road surface as it's continuing in a direction of travel …[31]
[31] January 2019 hearing ts 54.
Dr Richardson described the steering input as 'not a minor turn to the left'.[32] That input and the loss of control occurred before the separation of the tyre marks (that is, before the vehicle began to slide and rotate).
[32] January 2019 hearing ts 55.
Dr Richardson was satisfied that he could use the first 30 m of yaw marks to estimate the speed of the vehicle, using the same method followed by Mr Davey and Mr Simms. His analysis differed from Mr Davey's. First, he criticised the use of a 15 m chord[33] to calculate the radius of the arc in which the vehicle travelled. Second, he questioned the accuracy of Mr Davey's measurement. And third, based on the material before him, Dr Richardson's evidence was more consistent with that of Mr Simms. Dr Richardson calculated an arc of about 330 m, resulting in a significantly higher estimate of the speed of the vehicle.
[33] That is, the distance between two points on an arc.
An important part of Dr Richardson's evidence was that he was able, using a computer program, to align reference points on the police plan with photographs of the tyre marks taken at the scene. His evidence, if accepted, would undermine the basis on which the coroner preferred the more conservative estimate of Mr Davey.
Disposition
It is necessary to return to the nature of the application and the court's task. As Buss JA said in Re State Coroner; ex parte Minister for Health:
A proceeding in the Supreme Court pursuant to an application made under s 52(1) of the Act is not an appeal by way of re-hearing. It is a limited review in relation to some or all of the 'findings' of an inquest. By s 52(2), the Supreme Court may declare that some or all of the findings of an inquest are void and may order the State Coroner, relevantly, to hold a new inquest or to re-open the impugned inquest. The circumstances in which the Supreme Court may make an order under s 52(2) are specified in s 52(3).[34]
[34] Re State Coroner [2009] WASCA 166 [50].
The plaintiff contends that the court should order a fresh inquest because:
(1)it necessary or desirable because of consideration or failure to consider evidence;
(2)further, or alternatively it necessary or desirable because of insufficiency of inquiry;
(e) it is desirable because of new evidence; and
(f) the findings are against the evidence or the weight of the evidence.
Consideration or failure to consider evidence
I agree with the submission of counsel for the amicus curiae that this ground is concerned with the examination of evidence that was before the coroner. Section 52 of the Act requires the court to determine whether the coroner has considered evidence that should not have been considered, or has failed to consider evidence that was before the coroner and should have been considered.[35] This is a question of substance, not the rules of evidence. Coroners are not bound by the rules of evidence and may be informed and conduct an inquest in any manner they reasonably think fit.[36]
[35] Keown v Khan [1999] 1 VR 69 [19].
[36] Section 42.
Section 52 directs attention to whether the evidence was considered, not whether it was accepted. The plaintiff particularly complained that the coroner accepted the report of Mr Davey rather than that of Mr Simms. It is true that the coroner preferred the evidence of Mr Davey, for reasons which, in the light of the evidence of Dr Richardson, might now be challenged. But that is not a failure to consider evidence. The coroner had regard to the reports and the testimony of the witnesses and based her findings on all of the evidence before her.
I have set out in some detail the findings made and the evidence on which it was based. I am not satisfied that the plaintiff has demonstrated any error in the consideration of evidence.
Irregularity of proceedings
The plaintiff has not identified any procedural rules, or implied procedural obligations (such as the obligation to afford natural justice) which were breached.
The family of the deceased was legally represented at the inquest, with the right to cross‑examine witnesses and make submissions. Evidence which the family wished to present (in the third report of Mr Simms) was led by counsel assisting the coroner.
The plaintiff referred to correspondence from counsel assisting on 31 July 2002, which referred to the views of the coroner on the limitations imposed by s 53(2). In particular, that letter said that the coroner could not make a finding in relation to the speed of the vehicle that was inconsistent with the finding of the magistrate in the trial of Constable Grant.
Section 53(2) was not a limitation on the power of the coroner to inquire into the speed of Juliet 435, and did not prevent the coroner from make a finding about speed which differed from the finding at trial. If the letter of 31 July 2002 intended to suggest the contrary view, it was not correct. But consideration of the proceedings at the inquest shows that the coroner did not regard herself as so limited. Her Honour did not confine the evidence received about the speed of the vehicle. The coroner's preference for the evidence of Mr Davey was because her Honour accepted that it was more reliable, being it was based on measurements made at the scene. It was not the result of a restriction imposed by the findings in earlier proceedings.
At the hearing, the coroner also referred specifically to the rules applicable to a criminal trial. Her Honour said, in effect, that those rules did not limit the inquest and the parties could cross‑examine about matters from the criminal trial if they wished.[37]
[37] Inquest ts 50.
The plaintiff also relied on a general contention that the investigation of the crash - and the evidence at the inquest - was compromised because it was carried out by the Western Australian Police Service Major Crash Squad. The plaintiff argued that the investigating officers had a conflict of interest because they shared a common employer with the deceased and the driver. He particularly challenged the evidence of Sergeant Thorpe, as the investigating officer and the 'plaintiff' in the proceedings before the magistrate. The plaintiff extended that criticism to the evidence of Mr Davey, alleging that he also was not independent.
The plaintiff has a firm conviction that the police could not properly investigate this incident because no police officer could be independent. There is, however, no evidence that the inquest investigations were affected. And I am not satisfied, as a matter of general principle, that the inquest was compromised because the investigation was carried out by the police. I could, in my own research, find no authority to support any such principle.
Insufficiency of inquiry
The plaintiff questioned the failure of the coroner to call three police witnesses: Detective Senior Constable Booker, Constable Skelton and Constable Stephen Marks. There is no doubt that the first two, who were the occupants of Juliet 442, were relevant witnesses. Each of them gave a statement which was tendered in the inquest. Detective Senior Constable Booker had given oral evidence and was cross-examined at the trial of Constable Grant. Constable Marks' statement and report were tendered as Exhibit 8 in the inquest.[38]
[38] Inquest ts 12, although the statement is missing in the material before the court.
In my opinion, Detective Senior Constable Booker and Constable Skelton should have been called, if available. There was some evidence that Detective Senior Constable Booker was no longer in Western Australia, but that obstacle can usually be overcome.
There is nothing in the statements of those witnesses which shows that their evidence would result in different findings. On the material before me, I can only speculate about their evidence, should a new inquest be ordered.
The plaintiff has not demonstrated any other insufficiency in the inquiry that would warrant setting aside the findings of the coroner. It is not enough to show that more could have been done in the investigation of the crash - such as a 3D reconstruction of the scene, or the preparation of a plan that included the area off road where the car came to rest. The plaintiff has not shown a failure to do what was necessary for the coroner to make the factual findings necessary to understand what had occurred, or to make the findings required by the Act.
Findings against the evidence of the weight of the evidence
In Keown v Khan, Callaway JA said, in relation to the equivalent provision in the Victorian Act, 'all that was intended was that perverse findings might be set aside, ie findings for which there was no evidence or that no reasonable coroner could make.'[39] His Honour's comments were accepted in Re State Coroner; ex parte Minister for Health, where Buss JA continued:
The mere fact that the evidence at the inquest reasonably supported possible findings different from the coroner's findings is not sufficient to justify the setting aside of the coroner's findings if those findings are also reasonably supported by the evidence.[40]
[39] Keown v Khan [1998] VSC 297; [1999] 1 VR 69 [20].
[40] Re State Coroner; ex parte Minister for Health [57].
On the evidence before the coroner, I am not satisfied that any of her Honour's findings can be properly characterised as perverse findings.
New Evidence
The question posed by s 52 of the Act is whether an order under that section is desirable because of new facts or evidence. Assuming the evidence of Dr Richardson is new evidence, is it desirable that the court declare some or all of the findings void, or order a new inquest or a re-opening because of that evidence?
This application is not an appeal by rehearing, and the section sets out the relevant question. In my opinion, the court should consider whether the evidence is relevant, and capable of belief. In Herron v Attorney General for New South Wales, the court referred to a 'reputable body of evidence which, if accepted, would indicate the original finding … was erroneous'.[41] That is, the court should be satisfied that there is a real possibility that the result of the inquest - that is the findings required by s 25 - would be different from the findings made by the coroner in 2003.[42]
[41] Herron v Attorney General for New South Wales (1987) 8 NSWLR 601, 617.
[42] See Veitch v The State Coroner [2008] WASC 187 [3].
I am satisfied that Dr Richardson's evidence is relevant and capable of belief. It was not tested in cross‑examination, so I say nothing about its weight. But, in general terms, the methods he used were similar to those used by the experts at the inquest.
Is a new inquest necessary or desirable
The evidence of Dr Richardson, if accepted, could lead to a finding that the calculation by Mr Davey was flawed because he used an incorrect arc radius. Dr Richardson's evidence might also confirm that the information obtained in the crash investigation, including the police plan, was sufficient if properly interpreted to lead to a finding of a greater speed than the minimum accepted by the coroner.
If Dr Richardson's testimony was accepted, the coroner on a new inquest might find that Juliet 435 was travelling at a greater speed than the minimum speed accepted by the coroner in 2003. I am not, however, satisfied that would show that the original finding was erroneous, or that the findings made by the coroner would alter.
The precise speed estimate or calculation is not essential to the coroner's findings. Even accepting that Juliet 435 was travelling considerably faster than the minimum estimated, the conclusion that the crash was the result of a turn, following an error of judgment by the driver in the course he took, may not be disturbed. Whatever the speed, it was too fast for the car to maintain its course when Constable Grant, for whatever reason, steered to the left.
For the following reasons, I do not believe that, as a result of the new evidence, a further inquest is desirable.
First, at the inquest the coroner found only the minimum speed. Her Honour's finding was that the driver lost control when he steered Juliet 435 to the left. It is implicit in that finding that the vehicle was then travelling at 'critical speed'. The coroner explicitly found that the driver made an error of judgment that led to him making that turn.
Second, the driver of Juliet 435 was authorised to drive faster than the speed limit on that stretch of road.[43]
[43] It is relevant that the law relating to emergency driving has since been amended.
Third, the findings of the coroner are constrained by s 53. The finding that the death of the deceased was the result of an accident is unlikely to be disturbed.
Fourth, the new evidence does not go to what caused Constable Grant to steer to the left.
Fifth, finality is not a factor that would have the same weight in an investigative jurisdiction, as it would have in litigation between parties. There is, however, a public interest in the finality of findings, unless there is something to show that the earlier proceedings were insufficient or irregular. I am not satisfied that is the case.
Finally, it is now 19 years since the deceased died. This incident has been the subject of both an inquest and a criminal trial. The relevant witnesses made statements, and some of them testified, in the three years immediately following the crash. It is not realistic to expect, for those witnesses still available, that they will have any better or different recollection now. There is no reason to believe that there are other witnesses who might come forward.
I have taken into account the interests of the plaintiff and, more generally, the family of the deceased. It is important that the circumstances of the death are properly investigated and evaluated, both in their interests and in the public interest. But it has not been demonstrated that they were not.
The new expert evidence does not show any failure in the earlier inquiry such that it would be desirable to order a new inquest. The evidence, if accepted, would lead to a finding that when Juliet 435 steered to the left it was travelling at a greater speed than that estimated by Mr Davey and the minimum accepted by the coroner. That, in my judgment, is not a sufficient reason to order a new inquest so long after the events.
Conclusion
I am not satisfied that it is necessary or desirable to hold a new inquest on any of the grounds in s 52(2). The plaintiff's application should be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CG
Associate to the Honourable Justice Allanson
8 MAY 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: RE THE STATE CORONER; EX PARTE LOOHUYS [2019] WASC 147 (S)
CORAM: ALLANSON J
HEARD: ON THE PAPERS
DELIVERED : 21 JUNE 2019
FILE NO/S: CIV 2415 of 2017
EX PARTE
HENK LOOHUYS
Plaintiff
Catchwords:
Costs - Costs of intervenor
Legislation:
Rules of the Supreme Court 1971 (WA), O 66 r 1, O 18 r 6
Supreme Court Act 1935 (WA), s 37
Representation:
Counsel:
| Plaintiff | : | In person |
| Intervener | : | A Crocker for G Grant |
| Amicus Curiae | : | B D Nelson |
Solicitors:
| Plaintiff | : | In person |
| Intervener | : | Tindall Gask Bentley Lawyers |
| Amicus Curiae | : | State Solicitor for Western Australia |
Case(s) referred to in decision(s):
Arnold v Queensland (1987) 73 ALR 607
Johnston v Cameron [2002] FCAFC 301
Liverpool City Council v Weir (1984) 53 ALR 77
Moseley v AB (No 2) [2017] NSWSC 1812
Tonto Home Loans Australia Pty Ltd v Tavares (No 2) [2012] NSWCA 129
Williams v Lewer [1974] 2 NSWLR 91
ALLANSON J:
Following the delivery of reasons on the principal application I adjourned the question of costs to be determined on the papers. The only application for costs was on behalf of Constable Grant, the intervenor in the action, who sought costs against the plaintiff.
Principles relating to costs
Costs are in the discretion of the court: Supreme Court Act 1935 (WA), s 37(1). Under s 37, the court has 'full power to determine by whom or out of what estate, fund, or property, and to what extent such costs are to be paid'. The court's discretion must be exercised judicially, that is 'according to rules of reason and justice, not according to private opinion … or even benevolence ... or sympathy': Williams v Lewer [1974] 2 NSWLR 91, 95.
The authorities and rules of court offer guidance on the proper exercise of the discretion. Consistency in the exercise of judicial discretion is important in the administration of justice. Giving proper consideration to the rules of court and decisions in other cases is an important measure in ensuring consistency.
The general rule in O 66 r 1 of the Rules of the Supreme Court 1971 (WA) is that the court will generally order that the successful party to any action or matter recover their costs. That rule is expressed not to limit the general discretion conferred on the court.
Intervention
The plaintiff's application was brought pursuant to the Coroners Act 1996 (WA). It is analogous to judicial review but not within O 65 of the Supreme Court Rules.
Constable Grant applied to be heard as an intervenor, after the court ordered that he be given notice of the proceedings. The State Solicitor was then appearing to assist the court as amicus curiae.
An intervenor is '[a] person who seeks to intervene as a party in proceedings to protect their interest where those interests are different from those of existing parties': (P E Nygh and P Butt (eds), Butterworths Australian Legal Dictionary (Butterworths, Sydney, 1997), 629.
The role of the intervenor, as well as the level of intervention, ultimately turns on the particular facts and circumstances of a case, including the legislation pursuant to which the application is brought, the interests of the relevant parties, and the conduct of the litigation itself.
Costs of the intervenor
There are cases that deal with the costs of intervenors differently from the costs of the original parties to the proceeding, whether the order applied for is one to be made in favour of the intervenor as a successful party or against the intervenor as an unsuccessful party. Many of the cases were gathered and considered by Walton J in Moseley v AB (No 2) [2017] NSWSC 1812, and I have been greatly assisted by his Honour's reasons in that case. As a general statement, the cases show the wide variety of circumstances in which intervention may be permitted and how decisions regarding costs payable to or by an intervener depend upon the particular facts and circumstances.
There is no common practice that an intervenor will receive its costs, even if its contentions are accepted or the outcome of the proceeding otherwise accords with the arguments advanced by the intervener, as the plaintiff is entitled to choose whom they wish to sue: see Arnold v Queensland (1987) 73 ALR 607, 621; Johnston v Cameron [2002] FCAFC 301 [19]. An intervenor cannot expect that the unsuccessful party to the litigation in which they have intruded should bear the extra burden of their costs, even if the intervention was well intentioned and proved to be of assistance to the court: Tonto Home Loans Australia Pty Ltd v Tavares (No 2) [2012] NSWCA 129 [9]; Liverpool City Council v Weir (1984) 53 ALR 77, 83.
An important factor in determining if costs are payable is whether the joining of the intervenor was necessary. Constable Grant was joined on his own request. The power to permit his intervention was discretionary.
There is no doubt that Constable Grant was entitled to appear at an inquest into the death of the deceased (pursuant to s 44 of the Coroners Act) as a person whose act or omission may in the opinion of the coroner have caused, or contributed to, the death of the deceased person. His interests were indirectly affected by the application in this court because a successful application would have resulted in a new inquest at which he was likely to be a witness, and in which he would be entitled to appear. But he did not have a direct interest in the outcome of the proceedings in this court, in the sense that the decision or any finding of this court would directly affect any of his rights or interests. His presence before the court was not necessary to ensure that all matters in dispute may be effectually and completely determined: see Supreme Court Rules, O 18 r 6.
While I recognise that there is a costs burden as a result of Constable Grant appearing, I am not satisfied that it should be borne by the plaintiff.
I would make no order as to costs in the action.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CG
Associate to the Honourable Justice Allanson
21 JUNE 2019
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