Veitch v The State Coroner - [2008] WASC 187

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: VEITCH -v- THE STATE CORONER [2008] WASC 187

CORAM: BEECH J

HEARD: 1 AUGUST 2008

DELIVERED : 3 SEPTEMBER 2008

FILE NO/S: CIV 1563 of 2007

BETWEEN: JULIA VEITCH
Plaintiff
AND
THE STATE CORONER
Defendant

Catchwords:

Coroners - Coroner declined to hold an inquest - Application that an inquest be held - Whether necessary or desirable in the interests of justice - Whether any possibility of a different verdict - Turns on own facts

Legislation:

Coroners Act 1996 (WA) s 24

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff: In person
Defendant: Mr B P King

Solicitors:

Plaintiff: In person
Defendant: State Solicitor for Western Australia

Case(s) referred to in judgment(s):

Attorney General v McCann (Unreported, FCt SCt of WA Library No 940816, 11 April 1994)
Bhattacharya v Hamilton [2000] NSWSC 102
Channel Seven Perth Pty Ltd v S [2007] WASCA 122; (2007) 34 WAR 325
Herron v Attorney‑General for New South Wales (1987) 8 NSWLR 601
In re Rapier [1988] QB 26
O'Sullivan v Farrer (1989) 168 CLR 210
Re Inquest Into The Death Of Romauld Todd Zak; Ex parte Zak [2006] WASC 186
Re Minister for Resources; Ex parte Cazaly Iron Ore Pty Ltd [2007] WASCA 175; (2007) 34 WAR 403
Re Zapelli; Attorney General for the State of Western Australia [2000] WASC 183

BEECH J:

Summary

The plaintiff applies for an order requiring the State Coroner to conduct an inquest into the death of Mr Derek Stenhouse.
An order in favour of the plaintiff can be made if and only if I am satisfied that it is necessary or desirable in the interests of justice that an inquest be held. For the reasons which follow, I am not satisfied that it is necessary or desirable in the interests of justice that an inquest be held. Accordingly, the plaintiff's application fails.
I will begin by setting out the background facts which give rise to this application. Next, I summarise the evidence and submissions relied on by the plaintiff. Finally, I explain why I am not satisfied that it is necessary or desirable in the interests of justice that an inquest be held into Mr Stenhouse's death. An important element of that conclusion is that I am not satisfied that there is any real possibility that, if an inquest were held, the result would be different from the findings made by the Coroner in 1995 when he inquired into Mr Stenhouse's death.

Introduction

On 4 September 1994 Mr Derek Stenhouse died in a car accident. The plaintiff and a friend, Mr Graham Jones, were passengers in the plaintiff's car which was being driven by Mr Stenhouse.
The then Coroner, Mr D A McCann SM, inquired into the death of Mr Stenhouse.
On 17 February 1995 the Coroner published his findings on the inquiry. These findings may be summarised as follows. Mr Stenhouse died on 4 September 1994 at South‑West Highway, in the Shire of Murray, at the intersection of the overpass for the South Dandalup River as a result of multiple injuries. At about 4.50 am on 4 September 1994 the deceased was driving a motor vehicle in a southerly direction on the South‑West Highway. At the intersection with the overpass for the South Dandalup River, the motor vehicle collided with a steel barrier erected to prevent vehicles leaving the road and travelling down the embankment and into the river. The force of the impact severed the seat belt which the deceased was wearing and the deceased was ejected onto the road.
The deceased died in the collision. The Coroner reported that materials submitted to the Chemistry Centre of WA for evaluation, as part of the medical examination of Mr Stenhouse undertaken after his death, showed a markedly raised cannabis level. The Coroner stated that he did not propose to hold an inquest into the matter and found that the death arose by way of accident.
The contents of the file held by the Office of the State Coroner in relation to the death of Mr Stenhouse is attached to the affidavit of Ms Dawn Wright, sworn 15 June 2007. Ms Wright is the current administrator of the Office of the State Coroner.
Attachment DW41 to Ms Wright's affidavit is 12 photographs of the crash scene and the vehicle. An electronic version of those photographs is exhibit 1 to Mr Frederick Zagami's affidavit sworn 12 March 2008.
On 13 April 2007 the then solicitors for the plaintiff wrote to the State Coroner, Mr Alastair Hope. The solicitors' letter enclosed a letter written by the plaintiff. The plaintiff's letter requested an inquest into the death of Mr Stenhouse.
The plaintiff's letter stated that the accident was caused by a police patrol car. The letter stated that the plaintiff, Mr Stenhouse and others were travelling in the plaintiff's car. Mr Stenhouse was driving. As the car came around a bend headlights were coming straight toward them on the wrong side of the road. Mr Stenhouse screamed and swerved to avoid the oncoming car, but a collision occurred between the left (passenger) side of each of the two vehicles.
The plaintiff's letter made a number of accusations about the conduct of a police officer, Senior Constable Royston Sheppard. The letter referred to coverage of the accident on Channel Seven news which was said to show blue paint on the left‑hand side of the plaintiff's car where the police car had collided with it. The letter stated that the plaintiff discussed this paint marking with Senior Constable Sheppard, and that when she got out of hospital the blue paint was no longer on her car.
The plaintiff's letter requested that the Coroner investigate the 'cover up' by the police to help her find closure and to put her friend Derek to rest in peace.
The Coroner responded to the plaintiff's request by letter dated 8 May 2007. The Coroner's letter referred to a handwritten statement and a typed statement, both signed by Ms Veitch on 26 September 1994, in which Ms Veitch had stated:
'I got into the back of the car with Graham and fell asleep. I woke up when the accident happened. I thought I was dreaming. I kept passing out from my injuries.'
The Coroner also referred to a statement taken from Mr Jones, a passenger in the car at the time of the accident, and to the photographs of the accident scene on the coronial file. The one photograph showing the left‑hand side of the vehicle did not, the letter stated, appear to reveal any evidence of an earlier collision.
The letter concluded that while the Coroner accepted that the plaintiff may now be convinced that the tragic car accident resulted from an earlier minor collision with a police vehicle, there was nothing on the file which supported that view. On the evidence available, the Coroner did not propose that a public inquest should be held into the circumstances of the death.
On 17 May 2007 the plaintiff's solicitors forwarded to the Coroner a further letter from the plaintiff, requesting reconsideration of his decision, together with a letter from Mr Stenhouse's mother and from the plaintiff's mother.
By letter of 25 May 2007 the Coroner advised that he did not propose to change his decision of 8 May 2007.
By notice of originating motion dated 1 June 2007, the plaintiff commenced these proceedings, seeking orders under s 24 of the Coroners Act 1996 (WA) that the decision of the Coroner made on 25 May 2007 be set aside and that an inquest be held into the death of Mr Stenhouse. The plaintiff's application is supported by a number of affidavits. The substance of the affidavits is broadly consistent with the contents of the plaintiff's letters, referred to above. I will outline the substance of those affidavits later in these reasons.
When the matter first came before me on 6 July 2007, the defendant submitted that the appropriate course was as follows. Given the nature of the allegations being made, involving, in effect, misconduct on the part of one or more police officers, the defendant submitted it was appropriate that there be an investigation and that the most appropriate body to conduct the investigation was the Corruption and Crime Commission (the CCC).
By his counsel, the Coroner undertook to report to the CCC the contents of the affidavits filed on behalf of the plaintiff in the present proceedings.
The plaintiff did not object to the course proposed by the defendant, which course was then adopted.
After reviewing the material filed in support of the plaintiff's application in these proceedings, Mr Anthony Wood, a reviewer/assessor with the CCC, interviewed the plaintiff. Following that, Mr Wood wrote to the Western Australian Police by letter dated 14 September 2007. By that letter the CCC referred the matter to the police, pursuant to s 33 of the Corruption and Crime Commission Act 2003 (WA), for the police to address the allegations and determine whether a new investigation was appropriate.
Superintendent Frederick Zagami, attached to the Corruption Prevention and Investigation portfolio in the WA Police, investigated the allegations in the plaintiff's affidavits.
In his report dated 1 February 2008 (annexure A to his affidavit of 12 March 2008) Mr Zagami concluded that he found no evidence to support the allegation that any vehicle, including a police vehicle, had struck the car being driven by Mr Stenhouse prior to it crashing into the steel barrier on the South‑West Highway overpass. Photographs of the crash scene said to have been taken by Senior Constable Sheppard are exhibit 1 to Mr Zagami's affidavit. Discs of television news coverage are exhibits 2, 3 and 4. Both the photographs and news coverage show no sign of damage to the left‑hand side of the vehicle or any indication of a blue colouring on that side. I will return to the television news coverage later in these reasons.
Following receipt of Mr Zagami's report of 1 February 2008, Mr Wood reviewed the report and its contents. He determined that further investigation was not necessary. By letter of 4 February 2008 Mr Wood wrote to counsel for the defendant on behalf of the CCC. The letter recorded the opinion of the CCC that from the information currently available there was no new evidence to support any suspicion that a second vehicle, whether a police vehicle or otherwise, was involved in the motor vehicle accident that caused Mr Stenhouse's death. The letter recorded that the CCC had concluded that the police investigation into the issues raised by the plaintiff's affidavits was adequate, and that there were no grounds for the police or the CCC to take any further action in relation to the allegations.
In light of this response, the plaintiff seeks an order that an inquest be held. The defendant opposes this application and submits that no useful purpose would be served by an inquest.

Legal principles

Statutory provisions

The Coroners Act 1996 (WA) provides for a coronial system to inquire into deaths in Western Australia. That Act repealed the Coroners Act 1920 (WA).
The Coroners Act 1996 (the Act) applies to the death of Mr Stenhouse notwithstanding that the death occurred before the Act came into operation: s 62.
Section 19(1) provides that a coroner has jurisdiction to investigate a death if it appears to the coroner that the death is or may be a reportable death. A 'reportable death' is defined in s 3 of the Act in the following terms:
'reportable death' means a Western Australian death ‑
(a)that appears to have been unexpected, unnatural or violent or to have resulted, directly or indirectly, from injury;
(b)that occurs during an anaesthetic;
(c)that occurs as a result of an anaesthetic and is not due to natural causes;
(d)that occurs in prescribed circumstances;
(e)of a person who immediately before death was a person held in care;
(f)that appears to have been caused or contributed to while the person was held in care;
(g)that appears to have been caused or contributed to by any action of a member of the Police Force;
(h)of a person whose identity is unknown;
(i)that occurs in Western Australia where the cause of death has not been certified under section 44 of the Births, Deaths and Marriages Registration Act 1998; or
(j)that occurred outside Western Australia where the cause of death is not certified to by a person who, under the law in force in that place, is a legally qualified medical practitioner.
Section 22 deals with the coroner's jurisdiction to hold an inquest, and is in the following terms:
Jurisdiction of coroner to hold inquest into a death
(1)A coroner who has jurisdiction to investigate a death must hold an inquest if the death appears to be a Western Australian death and ‑
(a)the deceased was immediately before death a person held in care;
(b)it appears that the death was caused, or contributed to, by any action of a member of the Police Force;
(c)it appears that the death was caused, or contributed to, while the deceased was a person held in care;
(d)the Attorney General so directs;
(e)the State Coroner so directs; or
(f)the death occurred in prescribed circumstances.
(2)A coroner who has jurisdiction to investigate a death may hold an inquest if the coroner believes it is desirable.
It may be seen that where the death is within a category in pars (a) ‑ (f) of s 22(1) the coroner must hold an inquest. Otherwise, the coroner may hold an inquest if the coroner believes it is desirable.
One of the categories where the coroner must hold an inquest is s 22(1)(b), where it appears that the death was caused or contributed to by any action of a member of the police force.
The plaintiff brings these proceedings under s 24. That section is in the following terms:
Application for inquest into death
(1)If a person asks a coroner to hold an inquest into a death which a coroner has jurisdiction to investigate, the coroner may ‑
(a) hold an inquest or ask another coroner to do so; or
(b)refuse the request and give reasons in writing for the refusal to the person and to the State Coroner within a reasonable period after receiving the request.
(1a)A request under subsection (1) is to ‑
(a) be made in writing; and
(b)contain reasons for the request.
(2)Within 7 days after receiving notice of the refusal, or if a reply to a request for an inquest to be held has not been given within 3 months after the request was made, the person may apply to the Supreme Court for an order that an inquest be held.
(3)The Supreme Court may make an order that an inquest be held if it is satisfied that it is necessary or desirable in the interests of justice.
It can, therefore, be seen that the criterion for the exercise of power under s 24(3) is that the court is satisfied that it is necessary or desirable in the interests of justice that an inquest be held. A decision that it is necessary or desirable in the interests of justice that an inquest be held involves a discretionary value judgment (see Herron v Attorney‑General for New South Wales (1987) 8 NSWLR 601, 608, 613 and 617; and to like effect Channel Seven Perth Pty Ltd v S [2007] WASCA 122; (2007) 34 WAR 325 [52]; O'Sullivan v Farrer (1989) 168 CLR 210, 216; and Re Minister for Resources; Ex parte Cazaly Iron Ore Pty Ltd [2007] WASCA 175; (2007) 34 WAR 403 [19], [80], cases all dealing with decisions to be made with reference to 'the public interest').
In determining what is encompassed by 'the interests of justice' regard is to be had to the evident policy and objects of the legislation.
In this respect it is, I think, relevant to notice that a death which it appears was caused or contributed to by any action of a member of the police force is one of the categories of Western Australian deaths in respect of which the Coroner must, not may, hold an inquest under s 22.
In determining whether it is necessary or desirable in the interests of justice that an inquest be held, regard may be had to the scope and focus of an inquest when one is held. The scope of an inquest is affected by s 25 of the Act.
Section 25(1) provides that a coroner investigating a death must find, if possible: (a) the identity of the deceased; (b) how death occurred; (c) the cause of death; and (d) the particulars needed to register the death under the Births Deaths and Marriages Act 1998 (WA). Section 25(2) provides that a coroner may comment on any matter connected with the death, including public health or safety or the administration of justice.

Decided cases

So far as I am aware, there are no cases dealing with s 24 of the Coroners Act 1996.
There are cases concerning s 14 of the now repealed Coroners Act 1920, as well as concerning broadly equivalent sections in legislation in other states of Australia and in England. In considering such cases, it is important to bear in mind that in each case the legislation was not identical to s 24 of the Coroners Act 1996. With that important caveat, some general guidance may be provided by decisions relating to corresponding provisions from other jurisdictions.
Section 14(1) of the Coroners Act 1920 provided that:
Where the Supreme Court or a judge, upon application made by or under the authority of the Attorney General, is satisfied either:
(a)that a coroner refuses or neglects to hold an inquest which ought to be held; or
(b)where an inquest has been held by a coroner that by reason of fraud, rejection of evidence, irregularity of proceedings, insufficiency of inquiry, or otherwise it is necessary or desirable, in the interests of justice, that another inquest should be held;
the court or judge ‑
(i)may order an inquest to be held;
(ii)may, if the court or judge thinks fit, order the said coroner to pay such costs of and incidental to the application as may seem just; and
(iii)where an inquest has already been held, may quash the inquisition on that first inquest.
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.
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.
There may be a question as to the extent to which a court determining an application under s 24 ought to assess the cogency of the additional material relied upon as the foundation for the application.
In some cases where an inquest has already been held, an assessment of the cogency of the evidence in support of the application for a new inquest and the extent to which it alters conclusions reached in the earlier inquest, are seen as matters for a second inquest rather than for final determination by the court. See, for example, In re Rapier[1988] QB 26, 34; Re McCann (12 ‑ 15).
However, in Re McCann the court characterised the additional evidence relied upon as being, on its face, cogent and credible.
In Herron v Attorney-General for New South Wales (1987) 8 NSWLR 601, 617 McHugh JA said that at the forefront of matters to be considered in assessing the interests of justice is 'the existence of a reputable body of evidence which, if accepted, would indicate that the original finding as to the manner of death was erroneous'. See also Bhattacharya v Hamilton [2000] NSWSC 102.

These statements refer to the character of evidence (cogent, credible, reputable) found to be sufficient to enliven the power to order a new inquest. They are not statements of what evidence must necessarily exist before the power arises.
Nonetheless, it seems to me that the new evidence relied upon must reach a threshold of some degree of cogency. This must be assessed before it is determined that the question of whether the new evidence would alter the conclusion reached in the earlier inquest should be left for the second inquest. In determining whether it is possible that the new material would give rise to a different result, some assessment must necessarily be made of the extent to which the additional material is capable of bearing upon the verdict previously reached, in the light of the material initially available to the Coroner and the additional material subsequently available.
The plaintiff relies upon a number of affidavits, which may be summarised as follows.

The evidence relied on by the plaintiff

Affidavits of the plaintiff

The substance of the plaintiff's evidence as to the circumstances of the crash is accurately summarised in the defendant's submissions, dated 21 April 2008, as follows:
(a)she was sitting behind Derek [ie Mr Stenhouse] who was driving: paragraph 29;
(b) she heard Derek make a noise and noticed the headlights of another car coming towards her car: paragraph 35;
(c)Derek swerved the car to the right and she heard a loud scratching noise and a knock against the passenger's side of the car: paragraph 37;
(d)she looked through the window and saw police officers in blue uniforms in the other car, which had a police strip on the side and lights on the top: paragraph 38;
(e)her car then hit the bridge on the opposite (right) side of the road: paragraph 39;
(f)she was conscious and heard Graham and Derek screaming in pain. Graham was slung over her, but she grabbed the driver's seat and could see that Derek was in a lot of pain: paragraphs 40 to 42;
(g)she was unable to unbuckle Derek's seatbelt: paragraph 43;
(h)she could hear gurgling sounds and all of a sudden heard the seatbelt unravel and she saw Derek being thrown out of the windscreen of [the] car: paragraph 44;
(i)she heard a thud and saw a big tree: paragraph 45;
(j)as she lay there, she saw a police car opposite and police officers leaning out of the window staring at her: paragraph 46;
(k)she blacked out then awoke to hear Gema crying and Graham screaming and sirens in the distance: paragraphs 47 and 48; and
(l)she recalls being in the back of an ambulance and an ambulance driver saying that he would have to stitch the cuts on her face. She heard a man say to her, 'My name is Royston Sheppard. What is your name?'
On other matters, the plaintiff's evidence was to the following effect. After the accident the plaintiff viewed news coverage of the aftermath of the accident which had been taped by a friend. She noted that there was a blue streak on the passenger door of her car in that news coverage.
On 26 September 1994, 22 days after the accident, the plaintiff attended the Mandurah Police Station with her mother and Mr Jones. She argued with Senior Constable Sheppard on various matters, including whether Mr Stenhouse had fallen asleep and whether the accident had been caused by a collision with another vehicle. She signed a statement at the request of Senior Constable Sheppard. The plaintiff says she was never asked to read the statement, but trusted Senior Constable Sheppard and did not read it. (Some of the contents of this statement are set out earlier in these reasons at [15].) The plaintiff says that at this interview she was shown a photograph showing blue paint marks on the passenger side of the car, and that she discussed that photograph with Senior Constable Sheppard. The plaintiff then demanded to go and see the car. She was taken to the pound at the back of the police station and saw that there was no blue streak on the passenger side door of the car and no seat covers in the car.
In her affidavit sworn 28 March 2008 the plaintiff says that at a meeting on 11 December 2007 Superintendent Zagami showed her a photograph from the crash scene. (I infer that the photograph was that annexed at page 88 of Ms Wright's affidavit.) That photograph shows the left side of the plaintiff's vehicle after the crash. There is no blue mark on the left side of the car and no sign of any damage on that side. That photograph was, Ms Veitch says, different to the photograph that she saw on 26 September 1994 in a number of respects. She says that the photograph she was shown on 26 September 1994 was taken while it was still dark and that it showed a blue streak on the passenger side of her car.
I turn to other deponents' affidavits relied upon by the plaintiff.

Affidavit of Graham Ross Jones

Mr Jones' account of the accident, sworn in his affidavit of 18 June 2007, includes the following:
(a)at some point along South West Highway he told Derek that his place was not far and that it was only about 5 kilometres from where they were: paragraph 16;
(b)he noticed the headlights of an oncoming vehicle around a corner in the middle of the road and he heard the plaintiff scream, 'Watch out Derek': paragraph 18;
(c)the oncoming car came around the corner way [too] fast and scraped the (passenger's) side of the car: paragraph 20;
(d)he saw three police officers in the other car. He knew them to be police officers because he saw lights on the top of the car: paragraph 21;
(e)the car rolled over near the river on South West Highway: paragraph 22;
(f)he was screaming and Derek was badly hurt. The plaintiff was not asleep: paragraphs 23 and 24;
(g)a piece of metal struck him on the head and the next thing he remembered was lying in the back of an ambulance: paragraph 25.
On 26 September 1994 Mr Jones attended the Mandurah Police Station with the plaintiff. He saw the plaintiff and Constable Sheppard argue about matters including whether a police car struck the side of the plaintiff's car. He looked at the photographs shown to the plaintiff by Constable Sheppard. He noted a blue paint streak across the passenger side of the car. He was taken to the pound and saw the car, which had no blue streak and no front seat covers.

Affidavit of Nellie Edith Stenhouse

Ms Stenhouse is the mother of Mr Derek Stenhouse. The day after Mr Stenhouse's death she went to a pound at the back of the Mandurah Police Station. She saw the plaintiff's car and observed a blue streak on the side of the car.

Affidavit of Kathleen May Veitch

Ms Veitch is the plaintiff's mother. She attended the Mandurah Police Station with the plaintiff on 26 September 1994. She heard Senior Constable Sheppard argue with the plaintiff about matters including whether a police car hit the side of the plaintiff's car. Ms Veitch observed the photographs shown to the plaintiff by Senior Constable Sheppard. She saw a photograph showing a blue streak on the passenger side of the car door and black seat covers on the front seats. When they went to the pound the car did not have a blue streak on the passenger side and did not have front seat covers.
I turn to the plaintiff's submissions.

The plaintiff's submissions

The plaintiff's submissions were made primarily in writing and included the following:
19.The information the Coroner held when conducting the original investigation into the death of Derek Stenhouse, completed on 17 February 1995, was incomplete. In particular:
(1)The statements of Julia Veitch and Graham Jones recorded by Royston Sheppard and signed on the 26 September 1994 were not consistent with how they remember the accident. The affidavits sworn in support of the originating motion filed on 18 June 2007 are a true account of how the accident took place.
(2)The photographs were not the photographs shown to Julia Veitch, Graham Jones and Kathleen Veitch at the Mandurah Police Station by Royston Sheppard on 26 September 1994. The photographs shown on that day contained a blue streak on the passenger side of the car as evidenced in the affidavits sworn in support of the originating motion filed on 18 June 2007.
(3)There was no evidence submitted to the coroner that a second car, believed to be a police car, may have collided with the vehicle causing the crash as stated in the affidavits of Julia Veitch and Graham Jones sworn in support of the originating motion filed on 18 June 2007. This belief was brought to the attention of Royston Sheppard on 26 September 1994 by Julia Veitch as witnessed by Kathleen Veitch and Graham Jones.
(4)There was no evidence submitted to the coroner that the vehicle had a blue streak after the accident as viewed by Nellie Stenhouse on 5 September 1994 in the pound at the Mandurah Police Station and evidenced in her affidavit in support of the originating motion filed on 18 June 2007. Further there was no evidence submitted that Julia Veitch had viewed news coverage of the accident as taped by Geoff Ford and that coverage showed a blue streak on the passenger door.
20.There are discrepancies in the documentation and reports from the Police Officers that need to be fully exposed and thoroughly explored. In particular:
(1) The Certificate of Life Extinct of Derek Stenhouse shows he was pronounced dead and examined at 0550; however the Ambulance Report shows he was taken from the crash site at 0602.
(2)On attendance at Mandurah Police Station on 23 January 2008, Superintendent Zagami played Julia Veitch and Kathleen Veitch a disc containing the only news coverage of the accident. The coverage did not have sound and was a still life shot which is inconsistent with the coverage viewed by Julia Veitch previously.
(3)In a report to Mr Tony Wood from Superintendent Zagami regarding allegations of police involvement in a fatal motor vehicle crash on 4 September 1994, it was stated that Sergeant Russell and Constable Hamilton did not attend Murray District Hospital. However on the Ambulance Report it clearly states the Officers were in attendance at Murray District Hospital.
(4)Julia Veitch recalls an Officer introducing himself as Royston Sheppard while she was in the ambulance after the crash. Julia Veitch states it was still dark. However sunrise was at 0631 that night and Royston Sheppard's report states he did not arrive at the scene til 0645.
21.It is both necessary and desirable in the interests of justice for a public inquest to be held into the death of Derek Stenhouse.
22.The inconsistencies outlined above need to be resolved and explained in order for the family of Derek Stenhouse and the other passengers of the vehicle to be at peace with what has occurred.
23.The allegations contained in the inconsistencies toward the Police Officers involved are a further reason that it is in the public interest for the circumstances to be fully investigated and exposed by a public inquest.

Analysis

Applying the legal principles I have outlined to the circumstances of this case, if I were satisfied that the material now available gave rise to a realistic possibility that an inquest might conclude that Mr Stenhouse's death was caused or contributed to by a collision with a police car, I would order that an inquest be held. In those circumstances it would, in my opinion, be necessary or desirable in the interests of justice that an inquest be held.
However, for the reasons which follow, I am not satisfied that the new affidavit material gives rise to any realistic possibility that an inquest might conclude that a police car was involved in Mr Stenhouse's death.
Obviously, the account of the accident in the affidavits relied upon by the plaintiff would, if accepted, lead to the conclusion that a police car was involved in Mr Stenhouse's death. Equally obviously, those affidavits were not before the Coroner in 1995. Nor was there any information to that effect before the Coroner in 1995.
There was no cross‑examination at the hearing of any of the deponents of the affidavits relied upon by the plaintiff.
I have no doubt that the contents of the plaintiff's affidavits reflect her honest belief as to what occurred in 1994. The same is true of the other affidavits relied on by the plaintiff.
The plaintiff's affidavits were sworn more than a decade after the events in question. Those events were very traumatic. The recollections of the plaintiff and of the other witnesses relied upon by the plaintiff as to the events that occurred must be considered in light of the objective probabilities and any incontrovertible evidence.
In some respects, the plaintiff's account of how the accident happened does not seem to me to accord easily with common experience or the laws of physics. First, the plaintiff says that as the left‑hand side of each of the two cars collided, or was in the process of colliding, she looked through the window and saw police officers in blue uniforms, and also saw a blue police strip on the side of the car. Given that, on the plaintiff's account, the cars were travelling in opposite directions towards each other, it seems to me to be highly unlikely that the plaintiff could have seen inside the oncoming car so as to observe what people were wearing, or seen a police strip on the side of the oncoming car.
Secondly, the plaintiff says that after the car hit the bridge or rail on the right side of the road, she heard Mr Stenhouse screaming in pain, that she tried to unbuckle his seat belt, and then all of a sudden heard the seat belt unravel and saw Mr Stenhouse being thrown out of the car through the windscreen. It is, I think, beyond doubt that Mr Stenhouse would have been ejected from his seat upon impact of the car with the guard rail. The clip of the seat belt was still in the clasp after the accident. The belt itself broke under the force of the impact. There could not have been an opportunity for the plaintiff to attempt to unbuckle Mr Stenhouse's seat belt between when the car hit the guard rail and when Mr Stenhouse was thrown from the car.
Further, there is what I consider to be incontrovertible evidence that is inconsistent with the plaintiff's and Mr Jones' account of how the accident happened.
DVDs of the news coverage by Channels Seven, Nine and Ten are in evidence before me. The Channel Ten news coverage includes vision of the whole of the left side of the car. There is no sign of any damage of any kind to the left side of the car. The Channel Seven coverage shows vision of the rear half of the left side of the car. Again, there is no damage of any kind to that part of the car. In each case, there is no blue stripe or marks on that part of the car. (The Channel Nine coverage does not show the left side of the car.)
The DVDs of the news coverage were exhibits 2, 3 and 4 to the affidavit of Mr Zagami. Channel Seven produced a copy of its news coverage in response to a subpoena issued by the plaintiff. That DVD was tendered in evidence as exhibit A. It is identical to the Channel Seven DVD exhibited to Mr Zagami's affidavit.
There is, in my opinion, no basis to doubt the integrity of the DVDs exhibited to Mr Zagami's affidavit.
In my opinion, exhibits 2 and 3 establish, beyond any reasonable doubt, that immediately following the accident there was no damage to the left side of the plaintiff's car and that there was no blue streak or stripe on that side of the car.
One of the photographs of the crash scene (annexed at page 88 of Ms Wright's affidavit, and exhibit 1 to Mr Zagami's affidavit) also shows the left side of the plaintiff's car after the accident. No damage to that side of the car and no blue marks are shown on the car in this photograph.
The absence of any damage, at all, to the left side of the vehicle is not consistent with the plaintiff's and Mr Jones' account in their affidavits of how the accident happened.
That absence of damage in itself, is, in my opinion, sufficient to support the conclusion that there is no reasonable possibility that a coroner could conclude that the accident was caused in the way described by the plaintiff and Mr Jones. There is, however, further evidence which reinforces that conclusion.
The photographs of the scene of the accident establish that there were no skid marks or tyre marks on the road or on the gravel before the point when the car hit the barrier. That is consistent with the findings of the Coroner and not consistent with the plaintiff's account of the accident. The plaintiff says that the car was sliding before it hit the guard rail.
As I have said, the plaintiff says in her evidence that in a number of respects the photographs now before the court are different from the photographs that she was shown on 26 September 1994. When regard is had to what can be seen in the photographs, including the car, the chalk markings on the road, the emergency personnel and the guard rail, and to the consistency between the photographs and the news coverage, there can, in my opinion, be no doubt that the photographs are genuine photographs of the scene of the accident in which Mr Stenhouse died.
It is clear that the plaintiff firmly believes that on 26 September 1994 Constable Sheppard showed her a different set of photographs, taken while it was still dark and showing blue markings on the left side of her car (and differing in certain other respects). There is additional affidavit evidence, relied on by the plaintiff, of persons who say they saw one or more photographs of the plaintiff's car with blue streaks on the passenger side.
One of the photographs in evidence (affidavit of Ms Wright, page 92) shows blue‑grey undercoat underneath the yellow paint of the car (on the right side). That may in part explain what the plaintiff and other witnesses now believe they recall seeing.
In any event, in my opinion, the news coverage and the photographs now before the court establish beyond any reasonable doubt that no blue markings were on the left side of the plaintiff's car in the time shortly after the accident.
For these reasons I am not satisfied that there is any reasonable possibility that, if an inquest were held, the Coroner might conclude that Mr Stenhouse's death was caused or contributed to by a collision with a police car.
I turn to the question of whether, notwithstanding that conclusion, there are other circumstances which mean that it is necessary or desirable in the interests of justice that an inquest be held. For the reasons which follow, I find that there are no such other circumstances.
The plaintiff's evidence and her letters to the Coroner involve, to some extent, making allegations of wrongdoing on the part of at least one member of the police force. If I considered there to be a real possibility of a finding that a police car contributed to Mr Stenhouse's death, the allegation that Constable Sheppard had acted improperly to cover up that alleged fact would, to a degree, have reinforced the conclusion that an inquest should be held.
However, I have found that there is no realistic possibility of a finding that a collision with a police car played any part in the accident.
In light of that finding, the foundation for the allegations of police wrongdoing is absent. On the material before me there is, in my opinion, no reasonable possibility that an inquest could find that there was anything for the police to cover up. Moreover, to the extent that the plaintiff alleges that the photographs now in evidence are not genuine and have been tampered with, I have found that the material before the court establishes beyond any reasonable doubt that the photographs are genuine.
For these reasons, the allegations of police wrongdoing do not make it necessary or desirable in the interests of justice that an inquest be held.

Finally, the plaintiff points to what she says are apparent discrepancies in the documentation and police reports. Four points are set out in paragraph 20 of her written submissions, which have been set out earlier in these reasons. Given the findings I have already made, these matters seem to me to fall well short of being such as to make it necessary or desirable in the interests of justice that an inquest be held.
As to the first point raised by the plaintiff in paragraph 20, there is a discrepancy in the times recorded on the Certificate of Life Extinct and the Ambulance Report. The compelling inference is that the time on the Certificate of Life Extinct is a mistaken reference by the doctor to the time when she saw the plaintiff, not the later time when she examined Mr Stenhouse's body. Alternatively, someone may have used an inaccurate watch.
The second alleged discrepancy relates to news footage shown to the plaintiff and is covered by the conclusions I have already set out.
The third matter is in relation to the attendance of certain police officers at the hospital, and is based on a misreading of the Ambulance Report. That report does not state that Sergeant Russell and Constable Hamilton attended the hospital.
The fourth matter relates to the time of the presence of Senior Constable Sheppard at the scene of the accident. It is very likely explicable on the basis that the plaintiff is honestly mistaken as to when precisely she first met Senior Constable Sheppard. In any case, given the findings I have already made, this and the other three points raised by the plaintiff are not matters justifying the holding of an inquest.

Conclusion

For the reasons given, I am not satisfied that it is necessary or desirable in the interests of justice that an inquest be held. Accordingly, the plaintiff's application must be dismissed.