Gentner v Callaghan[2014] QDC 123

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   By originating application filed in this Court on 16 September 2011, the applicant relevantly seeks orders that:

“1. Pursuant to Sections 50 (1) and 50 (7) of the Coroners Act 2003:

1. (a)
   The findings of Coroner Callaghan in relation to the death of Adrian Elliott Jones delivered on 24 August 2011 at Maroochydore be set aside;

2. (b)
   The State Coroner direct another Coroner to hold a new inquest.”

2. [2]
   The findings of the first respondent^[1] that are put in issue, relate to an Inquest conducted into the death of Adrian Elliott Jones (the applicant’s stepson - “the deceased”). In broad terms, it is not contentious that the deceased died from injuries suffered when he lost control of his motorcycle, on the Yandina Bli Bli Road, at about 8.00am on 8 April 2006, with the result that he came into contact with a vehicle travelling in the opposite direction.

3. [3]
   By way of appropriately setting out some context for this application I will incorporate and repeat from some reasons published to the parties on 24 August 2012 and in relation to some orders made on an interlocutory application in this matter and dealing with the intention of the applicant, as that had emerged in the filed materials, to seek to rely on “new evidence” under s 50(5)(a) of the Coroners Act.

4. [4]
   The applicant was one of a number of parties given leave to appear at the Inquest and the primary issue which had been agitated by the applicant, was the prospect of debris being left on the roadway by drilling operations that had been conducted there, shortly before the accident (pursuant to the combined efforts of the second and third respondents) and that this debris contributed to the deceased, losing control of his motorcycle.

5. [5]
   In fact, the Inquest was only held as a result of this issue being identified as the focus of a successful application made, by the applicant, to this Court and for an order pursuant to s 30 of the Coroners Act, that the Inquest be held.^[2]

6. [6]
   The originating application is directed, in the first instance, to the power provided to this court in s 50(5) of the Coroners Act as follows:

“(5) The District Court may set aside a finding if satisfied that –

1. (a)
   new evidence casts doubt on the finding; or

2. (b)
   the finding was not correctly recorded; or

3. (c)
   there was no evidence to support the finding; or

4. (d)
   the finding could not be reasonably supported by the evidence.”

7. [7]
   Here the finding in issue is that relating to the exercise of the Coroner’s function of making findings pursuant to s 45(2)(b) and (e) of the Coroners Act and which requires:

“(2) A Coroner who is investigating a death or suspected death must, if possible, find—

…

2. (b)
   how the person died; and

…

5. (e)
   what caused the person to die.”

8. [8]
   The Coroner’s findings, in this case, were not stated in any strictly separate or formal manner and are to be gleaned from the written reasons published on 24 August 2011 and entitled “Findings of Inquest”. First, it is convenient to go to the following paragraphs in that document:

“Conclusion:

87. Given all of the evidence I am of the view that the accident was caused by the deceased losing control of his motorcycle such as he travelled into the path of the vehicle driven by Michael Miley Senior.

88. There is no evidence that the deceased was travelling in excess of the 80 kilometres limit. In fact there is no evidence of what speed the deceased was travelling at. The Yandina Bli Bli Road is a narrow country road with a shoulder that is unsealed. Debris from Burtons Road is tracked onto the Yandina Bli Bli Road. The deceased at the time of the accident was approaching the intersection of Burtons Road with the Yandina Bli Bli Road around a bend.

89. The deceased, an inexperienced rider of motorcycles of the size that he was riding on this day, lost control of his motorcycle and travelled over into the path of Michael Miley Senior.”

9. [9]
   It can be noted that the statements as to the deceased losing control of his motorcycle and travelling into the path of an oncoming vehicle are, to an extent, statements of conclusion or result, in that they beg the questions as to how and why such loss of control occurred. It is in that way that the issue critically raised by the applicant is to be viewed as a potential cause or contribution to these events and therefore to the death.

10. [10]
    It may also be the implication from the passage taken from the Coroner’s reasons and set out above, that she found that the inexperience of the deceased as a rider of the size of motorcycle he was riding and the possibility of debris on the road as tracked from Burtons Road, were contributing factors or causes of the death, but this is far from clear. However and apart from excluding any evidence of any responsibility of the driver of the other vehicle^[3], no other potential contributing factors or causes are expressly excluded.

11. [11]
    Accordingly, reference to an earlier passage in the findings document, is required in order to understand how the issue agitated by the applicant and the reason identified in Gentner & Barnes^[4] for holding the Inquest, was dealt with:

“[76] Both Golder Associates and Drillsure owed a duty of care to road users to conduct their work in as safe a manner as the exercise of reasonable care could make it.

[77] Michael Dobe, Peter Hooper and Anthony Steensen all gave evidence that at the conclusion of the drilling on the day prior to the accident a cleanup had occurred. I found all of these three witnesses to be credible witnesses and I accept that a cleanup did occur at the conclusion of drilling on 7 April 2006.

[78] Any evidence before this inquest that debris had been on the road as a result of the drilling was a result of comments made by the Jakemans to other people in the area namely Caleb Fitzpatrick and to the private investigator employed by the family of the deceased. I am of the opinion that the Jakemans’s conversation contaminated the evidence of Caleb Fitzpatrick. Mr Jakeman completely resiled from his comments with regard to debris on the road in the witness box and apologised for making those statements. I found at the time of her giving evidence Ms Jakeman’s evidence to be unreliable. It is unfortunate (perhaps an understatement) that the Jakemans involved themselves in the investigation of this death because that has clearly caused distress to a number of people.

[79] There is no evidence that could be relied upon to establish that there was any debris left on the road as a result of the drilling that may have caused this accident. In fact I accept that the roadway in the vicinity of the intersection of Burtons Road was left cleaner after the drilling than it was before in light of Mr Steensen’s evidence of sweeping the gravel off the road which had been tracked across the intersection from Burtons Road.”

The Present Application

12. [12]
    The applicant seeks to also have the finding as to what caused the death set aside upon the basis that the finding (in that it excluded the presence of debris on the roadway from the drilling operations as a contributing or causative factor) could not be reasonably supported by the evidence and also on the alternative claim that new evidence casts doubt on that finding.^[5]

13. [13]
    In respect of that alternative claim, it is convenient to refer to the outline of submissions filed for the applicant in accordance with the direction given on 18 November 2011, where it is contended that:

“there were sources of evidence that were ‘relevant to and logically probative of the matters within the scope of the coronial enquiry’ but which Her Honour declined to have placed before the inquest.”

14. [14]
    First there is reference made to what is described as the lengthy and wide ranging affidavit made by the applicant on 16 June 2009. It is submitted only that:

“the Coroner could have and should have been assisted at least by Mr Gentner’s recollections of his dealings with the Jakemans and Mr Church on 1 May 2006. In particular:

90.1. Mr Jakeman’s comments about the debris from the drilling.

90.2. Ms Jakeman’s comments about debris from the drilling.

90.3. The existence of a photograph showing dirt protruding from a parked vehicle

90.4. The emergence of Mr Fitzpatrick as a witness.”

15. [15]
    It can be seen that the references to the evidence of Mr and Ms Jakeman and Mr Fitzpatrick bear relationship to paragraph [78] of the Coroner’s reasons and are directed at evidence indicative of the presence of debris on the roadway. Essentially the contention is that the Coroner should have had regard to the evidence of the applicant’s dealings with these witnesses and accordingly, early statements that were made to him indicating observation of debris on the relevant section of roadway. An aspect of Ms Jakeman’s evidence was that she had seen a photograph of a police vehicle parked in a position where she had observed debris spilling from underneath it.^[6] However no such photograph was ever positively identified at the Inquest. The Coroner dealt with this issue as follows:

“[59] Church took a number of photographs on the day of the accident and these are before the inquest in Exhibit 17. Church’s evidence was that he did not see any debris or other obstruction on the road that could have caused the accident.

[60] Church was questioned about a missing photograph and in particular whether he showed Mr Gentner a photograph which had shown a police vehicle parked in the vicinity of bore hole 5. Church identified photograph 8 of Exhibit 17 as being this photograph taken at the scene of the accident and showing a scenes of crime unmarked police vehicle in the vicinity of bore hole 5. Church could not say whether or not that vehicle was there when he conducted his visual inspection of the roadway.”

16. [16]
    The evidence which could have been admitted from Mr Gentner is identified as follows and firstly in relation to Mr Gentner’s attendance at the scene of the accident with Senior Constable Church, on 1 May 2006:

“40. Senior Constable Church then interpreted the scene to me and stated that the pink paint marks were made by him and the pink colour was less visible and did not last as long and that the police preferred yellow paint but the colour change was brought about by the recent spate of collisions at Federal. We further discussed our interpretations of the physical evidence and possible scenarios of events. It was during these discussions that a man with a small child on his hip approached us from the east and introduced himself as Adam Jakeman and he asked if we were discussing the recent fatality and offered his recollection of evens [sic] relating to Adrian’s accident.

41. He said that he believed that Adrian had been travelling at a low or moderate speed as indicated by the sound of the motorcycle reflected by the road cutting towards the Jakeman dwelling. He said words to the effect that he had heard countless vehicles pass through the cutting and he was able to determine that Adrian was not travelling fast. He said that the motorcycle was down on its side at or near the middle of the southern left hand kerb and subsequently slid on the north bound lane of the road for some distance before crossing the double white centre lines into the south bound lane. He stated that the scrape marks demonstrating this were clearly evident for sometime afterwards but had since been mostly erased by traffic.

42. Adam Jakeman said that the cause of Adrian’s initial loss of control was mud or dirt on the roadway at the crest area of the left hand kerb and that this mud or dirt on the roadway had been caused by workmen doing soil test drilling on the road verge on the afternoon of Friday, 7 April 2006.

43. Adam Jakeman stated that attempts had been made to clean off the mud or dirt from the roadway but that on the morning of 8 April, immediately after the accident the muddy area was still wet. He stated that workmen had been back drilling in that area since 8 April 2006 and he also stated that he believed other neighbours on the western (inland and high) side of the cutting actually witnessed the accident.

44. Adam Jakeman was then joined by his wife who was introduced as Tabatha. She also offered her recollection of events of 8 April 2006.

45. She stated that the four wheel drive and Adrian’s motorcycle were the only vehicles at the scene until a young man stopped and the young man gave Adrian first aid and then directed traffic until relieved by police. She also stated that this young man had returned to the scene later on a black motorcycle and had spoken to Tabatha and told her that on the afternoon of 8 April 2006 he had tried to get information regarding Adrian from the Nambour Hospital but none was released.

46. Tabatha also stated that another nearby neighbour, Mr Terry Sadler, had listened to Adrian’s motorcycle as he came down Camp Flat Road and along the Yandina Bli Bli Road past Terry’s house and up the hill into the cutting where the sound of the motorcycle suddenly stopped. She also said that Terry Sadler was of the opinion that Adrian’s motorcycle was not travelling at excessive speed from the sound of it.

47. Tabatha stated that she had called Sadler on his mobile while we were all there at the scene and that he was in Adelaide when he answered. Sadler did not want to get involved. Tabatha again stated that there was no vehicle following the four wheel drive at the time of the collision. She also said that she disagreed with her husband regarding the neighbours on the high side of the cutting being actual ‘eye witnesses’ to the actual impact.

…..

50. While still at the scene I remember that Constable Church went to his police AIS Station Wagon and returned with a packet containing crash scene images from 8 April 2006. He showed these to myself and Tabatha Jakeman. In at least one of Senior Constable Church’s images a large area of what appeared to be mud or dirt on the surface of the asphalt roadway was clearly visible. The image showed the mud/dirt was emerging from beneath the front of a parked white car. It was clear from the image that the mud/dirt was in the immediate vicinity of the location of the drill hole which Senior Constable Church and I had just described to us by the Jakemans.

……

66. On 4 May 2006 Caleb Fitzpatrick telephoned in response to our private advertising and spoke with me. He said that he was the person we were seeking as a result of our advertisement.

67. On 5 May 2006 I telephoned Senior Constable Church at Coolum AIS but he was not available.

68. On Friday, 5 May 2006 in the evening Caleb Fitzpatrick came to our house at 6:00 pm. He told us what he saw and did at the scene on the morning of 8 April 2006. He said that on that morning he was driving alone along Yandina Bli Bli Road from Yandina to his work at Caloundra. He was following another person who was driving a late model small black car.

69. He said that as both vehicles approached the vicinity of Burtons Road he noticed people standing on the roadway, a white vehicle and what appeared at first to be child lying on the roadway. He stated that he and the black car pulled off the road, stopped and both drivers alighted simultaneously.

70. He said that the driver of the black car was a young woman in her early twenties with short dark hair and of solid build.

71. He stated that there was a woman standing beside a motorcyclist who was lying on the roadway and she was on her mobile phone. He stated that he looked at the white vehicle, noticed the motorcycle underneath it and a man standing next to the vehicle who was also holding a mobile phone.

72. Fitzpatrick believed the time was about 7:50 am and that Adrian was on his back with his head pointing approximately in the direction of Yandina, on the eastern side of the road towards the centre lines, several metres behind the four wheel drive.

73. Fitzpatrick stated that he had first aid training and went straight to Adrian. He also said that the woman standing near Adrian was talking on her phone to the ambulance, and was having trouble with the signal.

74. Fitzpatrick stated that he established eye contact with Adrian and noticed that when the woman repeated questions and instructions from the ambulance officer on the phone Adrian responded immediately and was seen to move a foot and wiggle his toes after the woman mentioned them.

75. Fitzpatrick stated that he determined that Adrian was conscious but unable to speak, was breathing and responsive. Fitzpatrick collected a towel from his vehicle and used it and someone else’s towel to cover Adrian. He also said he noticed Adrian’s boots and gloves were off but were close by on the road.

76. He also said it was fairly obvious that Adrian had at least one broken leg and there was very little bleeding and that Adrian’s clothing and helmet had sustained very little damage.

77. He also said that another man who had stopped at the scene also joined the group at Adrian’s side.

78. After Fitzpatrick had done all he could for Adrian he left and walked over to the four wheel drive. He saw a young girl on the back seat of the four wheel drive. He saw a part of the motorcycle protruding from beneath the four wheel drive. He asked the person standing next to the four wheel drive what had happened and this man said ‘you came around the corner and he lost it and we tried to swerve off the road to miss him and there was nothing we could do – there wasn’t enough time and it was too late’.

79. Fitzpatrick stated that he then moved south towards Kirra Road and proceeded to warn approaching traffic of the accident ahead.

80. He said that at approximately 10 minutes after he had himself arrived on the scene a man driving a utility with a small boy as passenger arrived near the scene from the direction of Bli Bli. He told the driver of the utility that he could not proceed because of an accident so the driver parked the utility at the side of the road, told the boy to stay with the vehicle and the driver then ran up the hill towards the scene of the accident. He later saw this same man wearing a Police high visibility coat and said that this man appeared to be working with the on-duty police officers who had arrived at the scene after this man who was now believed to be Senior Sergeant Michael Miley who is the son of the alleged driver of the collision four wheel drive KIL-01.

81. Fitzpatrick also said that no Police officers asked him for any information or his name and he said that he left the scene after a time and went to work.”^[7]

17. [17]
    Subsequently and in the course of hearing this application^[8], the applicant sought to also rely on an additional aspect as dealt with in his affidavit filed in this application which dealt with photographs that had been taken of a drilling machine to demonstrate dirt adhering to the tracks of the machine. It was dealt with in the applicant’s affidavit, as follows:

“17. On 7 May 2007 in an unfenced vacant allotment adjacent to the residence of drilled Dobe photographs were taken of a rubber tracked drilling rig on its transport truck. The rubber tracks of the drill rig appear to be heavily contaminated with mud/clay (see District Court, Gentner v. Barnes, Gentner exhibits CC561, drilling rig pics 003, Drillsure, cab & registration of Drillsure truck; CC 562 drilling rig pics 004, Drillsure, left side view of tracked rig loaded on back of truck; CC563 drilling rig pics 005, Drillsure, clay like mud adhering to left side rubber crawler track of rig. These were supplied to the CMC Margaret Patane on 11 July 2007, Coroner KO Taylor on1 6 (sic) July 2007, proceedings before His Honour Judge Robertson on 17 February 2009; Michael Barnes on 11 March 2009 (within documents served) and supplied directly to Coroner’s assisting Counsel Toby Neilsen on1 6 (sic) April 2010 (within copies of District Court Material). This was subsequently excluded from Coroner Callaghan 2006/13 inquest into Adrian Jones’ death. Exhibited hereto and marked “NKG-7 is a copy of the photographs taken by me”.

18. [18]
    It should be noted that on this application, counsel for the applicant conceded that whilst the affidavit of Mr Gentner, as presented to the Coroner, contained a considerably wider ambit of material^[9], it was not pressed that any of the remaining material should have been admitted and that it could not be pointed out where the more limited material, now pressed as relevant and admissible, was separately brought to the attention of the coroner. Counsel frankly conceded that it was likely to have been lost in the sheer bulk of the accompanying material.

19. [19]
    As will become evident, the most significant aspect of this additional material, is that contained in paragraph 50, in respect of the reference to a photograph viewed at the scene on 1 May 2006.

20. [20]
    In further support of the existence of some unproduced photographic evidence, supporting the contention of relevant debris being found on the roadway, the applicant seeks to rely on a statutory declaration made by a lawyer, Mr Barr. The submission proceeds:

“[96] Clearly the central issue at the Inquest was whether dirt had been left on the road by the drilling. An associated issue was whether ever existed a photograph of a police car parked in the area of BH5 with dirt protruding from underneath.

[97] At the pre-inquest conference I raised the evidence of Geoffrey Barr, a then solicitor employed by my instructor. Mr Barr provided a statutory declaration swearing to a conversation that he had with Mr Church in which Mr Church told him that there was material on the road in the area of where the incident occurred but that it was not captured in a photograph because a police car was parked over it. Her Honour ruled that the evidence was a ‘bit far removed’.

[98] At the inquest I cross-examined Mr Church on the issue. When I put the conversation to Mr Church he said he could not recall it but stated ‘If that’s what Mr Barr says I’ve said, well, who am I to argue with it?’

[99] I submit in the circumstances it was appropriate for the Coroner to call Mr Barr or at least have accepted into evidence his statutory declaration.”

21. [21]
    In the statutory declaration, made on 30 May 2007 by Mr Barr, he deposed to having a conversation with Senior Constable Church on 30 June 2006 and in relation to his investigation of the death of Adrian Jones, on 8 April 2006. At that time, Mr Barr was employed as a solicitor by the applicant’s solicitors. For present purposes the critical aspect is as follows:

“7. Church told me that the investigation brought to light the fact that there were people working on the road before the accident. He can see that there was loose material on the road. Unfortunately that seems to have happened right where the police car was parked. He told me that as a result there were no photographs of the material or the work that had been performed, due to the position of the police vehicle at the accident scene. Whilst I do not recall the words he used, Church expressed a degree of embarrassment at the fact that he had parked the police vehicle over the area where the work was performed.”^[10]

22. [22]
    That statutory declaration was referred to and dealt with in the following way at the pre-inquest conference held on 6 August 2010 (noting that Mr Nielsen appeared as counsel assisting the coroner):

“MR NIELSEN: Now, your Honour, in respect to the next witness, Geoffrey Barr, essentially his evidence relates to a conversation that he had with Senior Constable Church. My submission is that Mr Church can be cross-examined about that matter and----

CORONER: Yes, this is a bit far removed, isn’t it?

MR NIELSEN: I believe so, your Honour.

CORONER: He had a conversation with Mr Church.

MR NIELSEN: I mean, my submission would be that your Honour not allow it at this point but after Senior Constable Church has been cross-examined----

CORONER: Church’s evidence we’ll see what happens.

MR NIELSEN: ----then a further submission can be put up about that.

CORONER: Yes, right.”^[11]

23. [23]
    The relevant passage in the cross-examination of Mr Church by counsel for the applicant at the Inquest begins in the context of questioning in respect of Mr Church’s interactions with the applicant and the Jakemans, at the scene of the accident on 1 May 2006 and proceeds as follows:

“Do you recall the Jakemans, one or both, going further than just saying that there was perhaps debris on the road left from the drilling, the Jakemans on 1 May 2006 expressed the view to you that the debris on the road was the cause of the traffic accident, do you recall that occurring?-- Said it may have been the cause.

In that – the Jakemans?-- Yeah.

Do you recall later going to your police vehicle and producing some photographs?-- Yeah, I think I did.

Do you recall Tabitha Jakeman, in particular, pointing to a photograph that you had and saying words to the effect of, ‘That car’s parked over where I saw the debris or mud or dirt’ or whatever word she may have used?-- Possible. I know their car has been the subject of questioning on – that’s probably what she did say. I can’t recall that. I’d only be guessing there.

On that issue, do you recall sometime later having a conversation with a solicitor from the firm Butler, McDermott and Egan, Geoffrey Barr? Do you know Mr Barr?-- No.

Just excuse me. I put to you that on the 30^th of June 2006 he telephoned you to inquire about the progress of the investigation, does that ring a bell, Geoffrey Barr works with Peter Boyce?-- I do remember a solicitor ringing me, yes.

Do you recall telling Mr Barr that the investigation had brought to light that there were people working on the road before the accident?-- Possibly.

Do you recall telling Mr Barr that, unfortunately, a police car seemed to have been parked right where the drilling had been occurring?-- That’s possible.

And do you recall telling Mr Barr that you could see that there was loose material on the road?-- And that would have been on an assumption from a photograph.

Well, I’ll put this in context, I want to be clear on this. So you do recall – if you don’t, tell me – saying that your investigations had brought to light that people were working on the road before the incident? Do you recall saying that to Mr Barr?-- No, I don’t actually.

Okay. Do you recall saying that you could see or you can see that there was loose material on the road?--No, I can’t. If that’s what Mr Barr says I’ve said, well, who am I to argue with it?

Well, I’ll cut to the quick. I’m putting to you that you told Mr Barr on 30 June 2006 that you can see that there was loose material on the road, what do you say?-- Well, that would have been after I was approached by the Jakemans.

Do you recall saying that to Mr Barr, that’s my question though?-- I don’t recall saying that, no.

Do you recall saying to Mr Barr that, unfortunately, that seems to have happened right where the police car was parked?-- Possibly I did say that if Tabitha mentioned about that police car being parked where the dirt was meant to be, I probably did say that.

Do you recall saying to Mr Barr that as a result of where the police car was parked there were no photographs of the material or the work that had been performed due to the position of the police vehicle at the accident scene?-- Possibly.

And do you recall further expressing a bit of embarrassment over that, that the police car had been parked in that spot?-- Well, yes, one would; yes.”^[12]

Then and after the Coroner asked some questions about which photograph was being discussed and some further questions were asked of Mr Church as to some issues that had been raised with him about the provision of photographs to the coroner, the cross-examination continued:

“What I put to you, Mr Church, is that you produced photographs on the 1^st of May to the Jakemans and Mr Gentner, do you accept that?-- I believe so, yes.

And in that photograph was a----

CORONER: Are these the photographs----

MR COURTNEY: No.

CORONER: ----these group of 27?

MR COURTNEY: No.

CORONER: Are they before me----

Mr COURTNEY: No----

CORONER: ----the photographs that were produced to the Jakemans?

MR COURTNEY: Well, I don’t know, but I want to ask about the one particular photograph that is not before you.

CORONER: All right. Where are the photographs that you produced to the – Mr Gentner and the Jakemans?-- I can’t recall, your worship. It would obviously be this one in question. If the – if the matter comes to mind that the drill hole or the debris was meant to be under the police car, that’s the only police car that can come to my mind, so it would have been this photograph----

Forget about that. Which photograph did you produce to Mr Gentner and the Jakemans in May when you were – when you went back to the scene. What photographs were they? Could they have been this group of 27 photographs?-- I would assume they would have been the scenes of crime ones and, if I recall rightly, I printed those on a word document, so they were on A4 pages.

MR COURTNEY: Do you have those with you, the A4 pages that you think you might have had with you on 1 May?-- No.

So they wouldn’t have been nice and glossy like we can see prints coming from a photo shop?-- No, no, no.

More directly from a word processor printed onto normal paper?-- No.

You don’t have those?-- No.

Well, again, what I’m putting to you and what I’m putting to you is that one of those images showed a marked police car with dirt protruding from underneath it?-- Well, I can’t recall that at all.

And that marked police car was parked in the vicinity of where we can see the scenes of crime car in Exhibit 17 photograph 8, about the area of the bore holes we’re concerned----”^[13]

There was then an objection and counsel for the applicant asked some further questions of MrChurch about earlier evidence that he was given and then returned to the topic:

“Well, again, I’m putting to you that there was a marked police car parked in the area about where we can see the scenes of crime car in photograph 8 Exhibit 17?-- Yes, there would have been.

I’m putting to you, you captured that by way of photograph?-- Yeah, well, possibly – that’s possibly the case.

And it was that photograph that you showed Mr Gentner and the Jakemans on 1 May 2006?-- That’s possible. I don’t recall, but that’s possible.”^[14]

Then and after further questions about an issue having been raised about there being a scenes of crime photograph that was missing, MrChurch continued:

“… oh, look, I can’t recall. I know there’s been an issue of a missing photograph at some stage, that’s been an issue all along that I’ve tampered with photographs, which I have totally denied. What I have said to Mr Gentner – and I’ll stand by that right now – I took digital photos at the scene. At the time of taking those digital photos they were for my purposes only, because at that point in time digital photos could not be utilised as evidence in court and that’s what they were. Some of them were a little bit different to what they were originally, because I cut and cropped them for my purposes, but I have not touched up any photographs that would portray anything other than what they show and I’ve taken offence to that.

Well, is there a prospect between 1 May 2006 and today a photograph, for whatever reason, has gone missing, whether it’s misconduct or whether it’s a mistake, just like----?-- If that was the case and they were not all produced to the coroner it would have been because at that stage we didn’t produce all photographs to the coroner. We only produced the one that we felt were necessary for the coroner to look at in our report and since we’ve had a changeover of OIC all photographs now, regardless of what content they may have, are submitted to the coroner.”^[15]

Then and after some further questions about the possibility of missing photographs, Mr Church said:

“… there is no other photographs other than the photographs that I have produced.

Well, I am putting to you there was at least one, that one I’ve described to you?-- Well, I don’t know. That’s what you’re putting to me. I don’t recall that.”^[16]

24. [24]
    As the applicant relied upon the evidence of Mr Barr, as new evidence and the cogency of that evidence was challenged, he was called and cross-examined on this application. An effect of that cross-examination was to establish that what is recorded in Mr Barr’s statutory declaration, is his attempt at his recollection of his conversation with Mr Church, about 12 months after it occurred and only with the benefit of some brief contemporaneous notes and which relevantly only contained the following notations:

• “He has brought to light the fact that there were people working on the road and can see there was loose material on road.
• Happened right where police car parked.
• Potentially worked carried out by council and possibility under.”

In his evidence, he maintained that:

“… The best of my recollection was that he had attended the scene, that there was some loose material on the road that were subsequent investigations after he left the scene indicated that there may have been something of relevance and the location of that was under the police vehicle as a result of which he hadn’t secured direct evidence at the time he was at the scene by way of photographs. That’s my recollection of the conversation, your Honour.”^[17]

25. [25]
    However, there was a photograph produced to the Inquest by an employee of the Third Respondent and as part of a related series of photographs, on the basis that it was taken at the conclusion of the relevant drilling operations, on 7 April 2006 and showing the roadway to be clear of debris. This was marked as Exhibit 3. The Coroner dealt with the issues relating to this photo as follows:

“[48] Peter Hooper is an employee of Golder Associates. He attended the drilling works on 7 April 2006 with Michael Dobe from Drillsure Pty Ltd and Drillsure’s employee Anthony Steensen. Hooper’s report is contained in Exhibit 1 from page 320 onwards. Hooper’s evidence was that because of the type of rock in that location they lost a great deal of water down the hole. Because one needs water to force the debris out of the hole nothing came out and they had to stop drilling. They abandoned the hole. His evidence was that they sealed the hole and swept the road. He could not recall whether it was he who swept the road or the driller. Exhibit 3 is a digital photograph of the drilling works. Hooper’s evidence was that he had taken that photograph at the conclusion of the drilling and could identify from the photograph the white plaster of paris cap on the top of the drill hole just to the left of the steel bucket. Close scrutiny of the photograph does indicate that this is in fact the case. There is no debris on the road near the drill hole. Mr Courtney states that the fact that the person standing next to the drilling machine in Exhibit 3 cannot be identified raises doubt as to when the photograph was taken. This would require there to be a grand conspiracy involving a large number of people including Drillsure and the Men at Work whose truck can be identified in the background going back to the location setting up the drilling rig to take the photo – I cannot accept that. The photo is clear. I can see the plaster cap near the bin and I can see the road is clear of debris.

[49] I found Hooper to be a credible witness.”

26. [26]
    Although it seems that there has been some confusion in the applicant’s submissions in reference to another photographic exhibit, admitted and marked as Exhibit 2, at the Inquest, and as it is understood, the applicant had produced, to counsel assisting, a folder of materials which was said to cast doubt on the appearance of both Exhibits 2 and 3, as photos taken late on an April day, due to the location of shadows. Although the Coroner declined to admit the folder of materials, she dealt with Exhibit 2 as follows:

“[51] Later in the proceedings Mr Courtney, pointed out that in one of the photographs there is a shadow which appears to be the silhouette of the person taking the photograph. The drill holes are on the right hand side of the road and therefore the photographer would have been standing facing in a roughly southerly direction. As the sun sets in the west one would therefore not expect to see a shadow of the photographer in the photograph. None of this was specifically put to Mr Dobe but this does question exactly when the photograph was taken. Because of this I will not be relying on Exhibit 2.”

27. [27]
    However and as can be discerned from the extract from her reasons as set out above,^[18] the Coroner did place considerable weight on Exhibit 3, as evidence tending to exclude the remainder of drilling debris on the road.

28. [28]
    Further and whilst the outlines of submission of the applicant have suffered from some confusion as between the numbering of Exhibits 2 and 3 and whilst there was particular emphasis placed upon evidence relating to Exhibit 2 in the original submissions, it is also apparent that not only was there issue raised about the probity of Exhibit 3 at the Inquest but this also remained an issue for the originating application made to this Court.^[19]

29. [29]
    In that regard, there is a complaint that at the outset of the fifth and penultimate day of taking evidence at the Inquest, the Coroner refused to admit a folder of materials that were calculated to bring into question the credibility of the evidence given as to the taking of the photographs, admitted as Exhibits 2 and 3. In particular it was sought to challenge the contention that each photograph had been taken at the end of the relevant working day and in that way, providing any support to the evidence of the witnesses Hooper, Steensen and Dobe, to the effect that after the drilling work the critical section of road (adjacent to drilling hole 5) had been swept clean of any debris from the drilling activity.^[20]

30. [30]
    Although the folder contained other materials which in some (presently irrelevant) respects sought to enlarge upon the purported significance of them, both before the Coroner and in this Court, the applicant’s argument focused upon what were described as astronomical certificates. These were sought to be relied upon in order to confirm the position and time of sunset on that day. Bearing in mind that this court is not concerned with any review of the correctness of the Coroner’s ruling, it can be noted that it was recognised that such certificates were admissible pursuant to usual evidentiary principles and specifically s 66 of the Evidence Act 1977. However a concern of the Coroner, particularly adopted from the opposition raised by the second and third respondents, became entertained with considerations of fairness to the witnesses, who had earlier been called and had produced those photographs. Whilst such considerations of fairness were not inappropriate, it was noted that the witness who had produced Exhibit 2, Mr Dobe (but not Mr Hooper who had produced Exhibit 3), had been challenged, by the applicant, to the effect that the photograph did not have the appearance of being taken when he said it was. Further, various ways in which any such concern as to fairness to these witnesses, might have been remedied were also specifically canvassed. In any event, it was not clear as to how the specific information in the astronomical certificates and which was recognised as largely being confirmatory of matters of common experience, could and should have been put to these witnesses.

31. [31]
    However, counsel assisting the Coroner eventually and appropriately drew the Coroner’s attention to the essential question, as to what weight could be given to this evidence^[21] and the coroner ruled in the following terms:

“CORONER: Yes. I have real difficulties with the certificate, and for me to be able to give any weight to it, I would have to have called before this inquest and expert in whatever. I don’t even know what the person would have to be an expert in that would actually be able to give me information that would be – I’d be able to use, and even then without actually – even when the expert without actually being at the location on the particular day in question I would still have doubts about what information that they were supplying to the inquest.

This matter – this inquest has been around for a long time. The question of these photographs have been around for a long time. Mr Hooper wasn’t cross-examined as to the truthfulness or otherwise of his statement with regards to the taking of that photograph, which is exhibit 3, at the time.

Mr Dobe was cross-examined, but the questions of shadows and the like were put to Mr Dobe. I have got – I would have real difficulties with all of that. The proposition is inherently unfair. I therefore will not be allowing the certificate to be entered in as an exhibit.”^[22]

32. [32]
    But the matter did not end there and as has been noted above, obviously conscious of the issue raised in cross-examination of Mr Dobe, the coroner was not prepared to put any weight on Exhibit 2 or the evidence as to when it was taken.

33. [33]
    Otherwise and in the course of submissions to the Coroner in support of the admission of the certificates, counsel for the applicant candidly explained that he had consciously decided not to similarly challenge Mr Hooper in respect of Exhibit 3, because of an assessment, at that time, of an insufficient basis to do so. However and whilst the argument that was then developed, was that the certificates now provided that basis, that is far from clear.

34. [34]
    The essential difference between Exhibits 2 and 3 and the application of common experience (with or without the aid of the astronomical certificates), is that Exhibit 2 positively disclosed the existence of shadowing that was inconsistent with the purported timing of the photograph, whereas the contention in respect of Exhibit 3 is more as to the absence of shadowing that would be viewed as being consistent with that timing. That is an obviously different proposition and it is far from clear how the certificates were able to assist in that regard, particularly in the absence of assessment of other factors that may have effected the extent of direct sunlight into the photographed location, at the relevant time.

35. [35]
    However, the contentions in respect of Exhibit 3, do not end there. The applicant also seeks to include the affidavits of the three traffic controllers, who were engaged to work in connection with the drilling operations conducted on 7 April 2006. Although each of these witnesses gave evidence at the Inquest, it is apparent that the affidavits (each sworn on 29 May 2012) are calculated to provide some additional evidence from them, as to their observations of what is depicted in Exhibit 3 and particularly as to aspects of the inconsistency of that photograph having been taken on 7 April 2006, as was contended to and accepted by the Coroner.

36. [36]
    The effect of these affidavits was to confirm that each of the traffic controllers^[23], had together comprised the team of traffic controllers, engaged by the third respondent and through their employer, Men at Work, at the site in question, on 7 April 2006. In the case of Mr Blyth and Mr De Graff there was a record of them having worked from 7.30am to 5.00pm (including a half hour lunch break from noon) and in the case of Mr D’Oliveira, from 7.30am to 4.30pm. That is consistent with Mr Blyth and Mr De Graff only, remaining to collect and pack up signage, after operations had been completed and the roadway cleared of machinery.

37. [37]
    Essentially what was relied upon, as additional evidence to that given by each of them at the Inquest and therefore as new evidence, was their observations as to what is depicted in Exhibit 3. Although each identified a person in that photograph dressed in clothing consistent with that worn by Men at Work employees^[24] and walking away from the photograph and towards what was identified and a Men at Work vehicle, with typical signage loaded on it:

1. (a)
   Each of them stated that it was not himself or either of the others, depicted^[25];

2. (b)
   The positioning of the truck at the intersection of Burton Road, was not consistent with standard work practices that they had employed at the site; and

3. (c)
   The appearance of only one witches’ hat in the photograph, was also not consistent with such practices.^[26]

38. [38]
    Mr D’Oliveira went so far as to opine that the photo had the appearance of being taken while the worksite was still operational, rather than at the conclusion of such operations and as the site was being cleared.

39. [39]
    As the cogency of this evidence was put in issue, each witness was called and cross-examined on this application and the third respondent filed, in response to this evidence, an affidavit of a Mr Quinn, a senior geotechnical engineer, in order to produce some records from the third respondent’s computers, in an effort to demonstrate that the digital image, Exhibit 3, was downloaded from a digital camera, on Monday 10 April 2006 and therefore on the next working day after 7 April 2006. However in doing that, it was necessary to explain away other less consistent recordings, including what was contended to be both the incorrect date and time settings, also downloaded from the digital camera. However the simple point of this evidence was to refute the cogency of the suggestion sought to be bolstered by the additional evidence of the traffic controllers, to the effect that Exhibit 3 must have been taken on some other occasion, when machinery was taken to the site in question, other than on 7 April 2006.

Interpretation of s 50(5) of the Coroners Act

40. [40]
    It is necessary to determine the scope and effect of s 50(5) the Coroners Act and in turn to determine what is meant by “new evidence” in s 50(5)(a). This is particularly because the effect of the applicant’s submission is that leaving aside the additional evidence of the three traffic controllers, which was not in any sense, given to or within the knowledge of the Coroner, the remaining additional evidence may be considered by this court both as “new evidence” that “casts doubt on the finding” and as part of “the evidence” upon or by which the finding can not be reasonably supported.^[27]

41. [41]
    First it is important to note that in Hurley v Clements^[28], it was determined that:

“[29] We are in no doubt that the reference in s 50 to ‘a finding at an inquest’ is a reference to a finding of the kind required by s 45(2) of the Act. No other kind of finding is referred to in the Act; and it is inconceivable that the reference to ‘a finding’ in s 50 could encompass every conclusion on every issue of fact made by a Coroner on the way to making a finding of the kind referred to in s 45(2) of the Act. Counsel for Mr Hurley urged us to adopt that view, but we are unable to attribute such caprice to the legislature.”

42. [42]
    Further and in relation to a similar context, where a Coroner was described as having not given “the precise statement of ultimate conclusion required by s 45(2) but rather jumbled these conclusions together with the reasons which led her to reach them including her own views on the credibility of witnesses”,^[29] it was otherwise observed in respect of the requirements in s 45(2)(b) and (e) (which were there effectively approached as being each concerned with the issue of cause of death), that:^[30]

“[23] … A finding that a death was not caused by a particular agent is, by definition, not a finding as to what caused the person to die. That was the view that Callaway JA took in Keown v Khan & Anor.[8] As to the issue posed for a Coroner by s 45(2)(b) of the Act, however, it may not be possible to make a finding that a person died in a particular way without, at the same time, making a finding that the person did not die in a different way. Callaway JA recognised that this was so, saying ‘it will often be necessary for a Coroner to make more than one finding in order to discharge his or her obligations under para (b) [of s 19(1)]’, ie the Victorian analogue of s 45(2)(b) of the Act.[9]

[24] Much of the difficulty in this case arising from the uncertainty as to the scope of the decision of the District Court stems from the Coroner's failure to state her ultimate conclusion in relation to s 45(2)(b) in a succinct and precise way. We will need to refer to these difficulties and the solution to them in this case in due course. It is sufficient at this stage to note that, although the Coroner's findings in relation to s 45(2)(b) of the Act were not stated in conformity with the Act, no challenge was made to those findings on the ground of error of law in that regard, and it may be that, as counsel for the Attorney-General argued, a challenge on such a basis would fall outside the scope of s 50(5)(d) of the Act.”

43. [43]
    Although it is not expressed as such, an application pursuant to s 50(5) of the Coroners Act, is akin to an appeal to this court for the exercise of the powers which are allowed to set aside an impugned finding and to make orders such as are allowed under s 50(7). But first this court must be satisfied of at least one of the requirements of s 50(5).

44. [44]
    However the proceeding is not an appeal in the traditional sense. For one reason, it involves consideration of an inquisitorial process, which although allowing for findings that may be of considerable interest to persons affected by them, is not a process that directly affects the interests of any person by the determination of any rights or liabilities.^[31] More particularly, for present purposes, and whilst the proceedings in this court attracted the more traditional characteristic of an adversarial process, it is an important and correct understanding of the applicant’s position, that the proceedings below did not and that the applicant’s leave to appear there, did not entail any obligation or right to present evidence or any case, to the Coroner. However, it has also been observed that the role of the Coroner is not to conduct a wide ranging enquiry of the kind that might be engaged by a Commission of Inquiry and that in the exercise of a Coroner’s function in investigating issues such as cause of death, the application of common sense and experience is required and it may not be necessary to explore every suggested causal link, irrespective of how tenuous the connection may appear.^[32]

45. [45]
    In short compass and although as it was recognised in Hurley v Clements^[33], that concepts as to standard of proof are to be applied in relation to the necessary findings of the Coroner, concepts as to onus of proof are not involved. Rather the necessary findings that are able to be made, are the result of the inquisition of the Coroner.

46. [46]
    It is, of course, necessary to note some provisions of the Coroners Act and which provide for the control of the conduct of an Inquest by the Coroner. An inquest, of course, is a formal process conducted in a judicial manner and as part of the exercise of a Coroner’s duty or function of investigating a death and in this regard it can be noted that the findings required of a Coroner pursuant to s 45(2), are required of “a Coroner who investigating a death or suspected death”. Further, the circumstances in which a Coroner investigating a death must hold an inquest are regulated by s 27 of the Coroners Act. Other provisions of the Coroners Act which regulate the process of holding an inquest by a Coroner which may be noted for present purposes include s 34, which relates to the holding of a pre-inquest conference and provides:

“34 Pre-inquest conferences

1. (1)
   The Coroners Court investigating a death may hold a conference before holding an inquest—

1. (a)
   to decide—

1. (i)
   what issues are to be investigated at the inquest; or

2. (ii)
   who may appear at the inquest; or

3. (iii)
   which witnesses will be required at the inquest; or

4. (iv)
   what evidence will be required at the inquest; or

2. (b)
   to work out how long the inquest will take; or

3. (c)
   to hear any application under section 17; or

4. (d)
   to otherwise ensure the orderly conduct of the inquest.

2. (2)
   The Coroners Court may order a person concerned with the investigation to attend the conference.”

Also, s 36 regulates the right of persons to appear at the inquest and to ‘examine witnesses’ (which is defined to include cross-examine), and make submissions at the inquest. Apart from a person designated to assist the Coroner and the Attorney General, the Coroner may allow any person who is considered to have “a sufficient interest in the inquest” leave to “appear, examine witnesses, and make submissions, at an inquest” and may also allow such a person to be represented by a lawyer.

47. [47]
    Importantly, s 37 provides:

“37 Evidence

1. (1)
   The Coroners Court is not bound by the Rules of Evidence, but may inform itself in any way it considers appropriate.

2. (2)
   The Coroners Court may require a person to produce a document to the Court before the start of an inquest.

3. (3)
   The Coroners Court may inspect anything produced at an inquest, copy it, or keep it for a reasonable period.

4. (4)
   The Coroners Court may do any of the following –

1. (a)
   order a person to attend an inquest, until excused by the Court –

1. (i)
   to give evidence as a witness; or

2. (ii)
   to produce something;

2. (b)
   order a person called as a witness at an inquest –

1. (i)
   to take an oath; or

2. (ii)
   to answer a question….”^[34]

48. [48]
    Therefore, it may be noted:

1. (a)
   The findings required of the Coroner by s 45(2) of the Coroners Act, apply to a Coroner who is investigating a death or suspected death, as empowered to do so by s 11;

2. (b)
   The powers to be exercised in such an investigation, are set out in s 13 and there are other provisions, such as s 14 to 17, which are designed to assist the exercise of those of powers;

3. (c)
   In addition, division 3 of part 2 of the Coroners Act, provides for the holding of an inquest, which as the division contemplates, is a form of proceeding held in a Coroners Court and generally in “Open Court”.^[35] Section 37 provides that the Coroners Court “is not bound by the rules of evidence, but may inform itself in anyway it considers appropriate” and s 36 allows for determination as to who may be granted leave to “appear, examine [including cross-examine] witnesses and make submissions, at an inquest”; and

4. (d)
   Further the investigative nature of and the investiture of control of the process with the Coroner, is confirmed, in addition to s 34, by s 35, as follows:

35 Directions or orders about inquests

1. (1)
   To the extent that the conduct of an Inquest is not provided for by rules or practice directions, the Coroners Court may give the directions and make the orders the court considers appropriate for the conduct of the inquest.

Example—

The Coroners Court may make an order to close the court while a witness is giving evidence that the witness claims would tend to incriminate the witness.

2. (2)
   Subsection (1) does not limit the power of the Coroners Court to control an inquest.

49. [49]
    Within the confines of the statutory provisions, it is to be expected that the coroner will act judicially and provide appropriate procedural fairness to those parties granted leave to appear. Ordinarily that would entail disclosure of all of the information to be considered for the purpose of findings, including any information obtained in the investigation that may not be separately examined or expounded at the inquest.^[36]

50. [50]
    The level of control that a coroner has over the conduct of an inquest is clear. However and given the context which has been set out above, it is apparent that having achieved his object of the holding of the Inquest and a right to appear at and be legally represented at the Inquest, the applicant took on a role of seeking to identify any evidence suggestive of the presence of debris on the relevant section of roadway, for the Coroner’s consideration. However and as correctly pointed out on behalf of the Applicant, he had no ability to introduce evidence, except as allowed by the Coroner, including by way of leave granted to cross examine witnesses and no ability to even subpoena any witness or document.

51. [51]
    However that is not to say that the parties given leave to appear at an inquest do not have any role to play in assisting that process and seeking to protect or advance their own interests, in the course of such proceedings and particularly as to any appropriate findings. Logically therefore and when this Court is confronted with an application under s 50 of the Coroners Act, by such a party, considerations may arise as to what that party did or didn’t do, in accordance with the leave granted for appearance at the Inquest.

52. [52]
    It is appropriate, in this context, to note that there was evident in the proceedings in this Court and in the Inquest itself, a tendency for sight to be lost of the essentially inquisitorial nature of the process before the Coroner. Further it can be observed that the adversarial tenor of the behaviour of at least some of the parties in the course of the Inquest, may well have been of some influence in an approach by the Coroner, which, in some respects, is now effectively criticised as not being sufficiently inquisitorial but rather determined on a more adversarial basis. Hence the reliance, in this application upon aspects of “new evidence” which were within the knowledge of the Coroner but, it is contended, excluded by her from consideration for the purpose of her findings.

53. [53]
    Further and pursuant to s 50(1), an application may only be made under s 50, by “[a] person dissatisfied with a finding at an inquest” and such applications are not premised upon identification of errors, whether of fact or law, by any coroner in conducting an inquest.^[37]

54. [54]
    The contentions raised in this case involve consideration of both the concepts of “new evidence”, in s 50(5)(a) and “the evidence”, in s 50(5)(d). There is immediately evident difficulty in accepting the applicant’s contention that the same evidence may be considered under both paragraphs. The subparagraphs appear to deal with separate concepts in the application of separate tests. Although a finding in accordance with paragraph (c) that there was no evidence to support a finding could, logically, also amount to a conclusion that the finding could not be reasonably supported by the evidence, it would be only necessary to resort to paragraph (d) where there is some evidence to support the finding. Whilst in a given case, separate considerations may lead to a conclusion that more than one of the subparagraphs is satisfied, the structure of the subsection appears to indicate a need for demarcation or delineation as between the operation of sub-paragraphs (a) and (d).

55. [55]
    In order to satisfy s 50(5)(d), the applicant must establish that “the finding could not be reasonably supported by the evidence”. That imports a review of the evidence that was considered by the Coroner and as explained in Hurley v Clements, that is a limited exercise of review:

“[32] Reference to his Honour's reasons shows that his Honour did indeed address himself to a broader review of the evidence than was necessary or appropriate to a consideration pursuant to s 50(5)(d) of the Act as to whether the Coroner's findings were reasonably open on the evidence. In particular, his Honour held that the Coroner erred in failing to keep ‘in mind that alternative hypotheses needed to be considered and excluded before inferences adverse to Hurley could be drawn from proven facts’. That approach was not in conformity with s 50(5)(d) of the Act. Counsel for Mr Hurley argued that his Honour's approach was in conformity with the requirements of Briginshaw v Briginshaw; but as the passage set out above from that case shows, a state of satisfaction on the probabilities appropriate to the gravity of the consequences of a finding does not involve the need to exclude competing possibilities.

[33] In any event, the language of s 50(5)(d) of the Act permits the District Court to set aside a finding by a Coroner only if satisfied that ‘the finding could not be reasonably supported by the evidence’. In the application of this test, the circumstance that the evidence reasonably supported possible findings different from those made by the Coroner would not warrant the setting aside of the finding made by the Coroner if that finding too was reasonably supported by the evidence.

[34] The approach applied by the learned primary judge does not conform to s 50(5)(d) of the Act. Rather, his Honour's approach was akin to that to be applied to determine criminal responsibility upon a trial for an offence or on an appeal from a conviction of a criminal offence. In a criminal trial, an accused must be acquitted if the evidence supports a reasonable hypothesis consistent with innocence.http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/qld/QCA/2009/167.html?query= - fn18#fn18 The inquest was not a criminal trial in which Mr Hurley was accused of the unlawful killing of the deceased, and the Coroner was not concerned with whether or not Mr Hurley was criminally responsible for the death of the deceased. Section 45(5) of the Act makes it expressly clear that the Coroner’s task of making findings as to the circumstances of a death was not concerned with questions of criminal responsibility.”

56. [56]
    As has been noted above, the situation in this matter was complicated by the type of consideration reflected in the observations in Hurley v Clements at [23], in that, whilst the finding of the Coroner which is the subject of this application is that relating to the cause of death, the critical issue in the Inquest was as to whether any debris left on the road as a consequence of the drilling conducted beside the roadway, had contributed to or caused that death. Therefore, it is the absence of such a finding by the Coroner, which the applicant contends cannot be reasonably supported by the evidence.

57. [57]
    Further and in that context and to the extent that the applicant contends that whilst brought to her attention and therefore available for consideration by the Coroner, there were aspects of the additional evidence relied upon, which were relevant to this issue and which were, as a result of rulings made or indications given by the Coroner, excluded from her consideration of her findings.

58. [58]
    Subject to any issue of relevance and given the breath of the investigative powers and the relaxation of the rules of evidence, exclusion of evidence bearing on the issues to be investigated at the Inquest, could be expected to be an unusual feature.^[38] However and if and as it is contended it did here, that occurs, then the question is as to whether the unconsidered evidence forms part of “the evidence” for the purposes of s 50(5)(d). In that regard, it is conceivable, as is contended here, that a finding excluding a particular contribution to or cause of death, might be able to be regarded as not reasonably supported by the evidence, if some significant evidence supportive of that contribution, was excluded from consideration and not taken into account.

59. [59]
    However such an approach may be unnecessary, if such evidence may be regarded as “new evidence” for the purpose of applying s 50(5)(a), particularly because there is a different test of demonstrating that such evidence “casts doubt on the finding”. On the other hand, contextual considerations might lead to a different conclusion, if the submission of the third respondent,^[39] were to be accepted and the meaning ascribed to “new evidence” in paragraph (a) be strictly limited to evidence that was not available to the applicant or the Coroner, at the time of the Inquest.

60. [60]
    The concept of “new evidence” is one generally recognised in the context of appeals from decisions of courts. For instance and in a relatively recent appeal from a jury verdict in a criminal trial, it was explained by McMurdo P:

“[65] The test for determining whether a court should receive evidence on appeal which had not been given at trial differs, depending on whether the evidence is fresh or new. Fresh evidence is evidence which either did not exist at the time of the trial or which could not then with reasonable diligence have been discovered. New evidence is evidence on which a party seeks to rely in an appeal which was available at the trial or which could, with reasonable diligence, then have been discovered.^[40]

[66] If the evidence is fresh, in determining whether to allow the appeal the Court must ask whether the appellant has established that there is a significant possibility that, in the light of all the admissible evidence at trial together with the fresh evidence, a jury acting reasonably would have acquitted the appellant.^[41] If the evidence is merely new or further evidence, the application to adduce it may be refused. This is for two reasons. The first is to prevent a defendant from deliberately withholding evidence at trial so that, if convicted, it can be used in a re-trial conducted on a different basis. The second is that the community interest in the finality of litigation requires that there must be powerful reasons for disturbing a conviction obtained after a regularly conducted trial beyond a defendant choosing not to call particular evidence at trial.^[42] That said, there remains a residual discretion in exceptional cases to receive new or further evidence if to refuse to do so would lead to a miscarriage of justice.^[43] The principles governing the reception of new and fresh evidence are not to be treated as inflexible rules strictly binding appellate courts, particularly in criminal cases.^[44]”^[45]

61. [61]
    Those observations were made in the context of the appeal provisions in the Criminal Code and which provide for a form of strict appeal, where the power to receive additional evidence is for a more limited purpose than rehearing the matter. By way of contrast, different statutory provisions occur in other appeal contexts. For example, in the jurisdiction exercised by this Court pursuant to s 222 of the Justices Act 1886, the appeal is conducted as a rehearing^[46] and as pointed out by the third respondent, there are judicial descriptions of the exercise of such a power in conjunction with the receipt of evidence which was not before the original decision maker, as an exercise of “original rather than strictly appellate jurisdiction”.^[47] From that basis, the third respondent’s submission proceeds to a contention that:

“… to be ‘new’ such evidence either came into existence or into the knowledge of either the coroner and/or authorised participants in the inquest; after the completion of the inquest … The opposite interpretation would create a ‘backdoor’ for amongst other things decision(s) made by the Applicant, as in this case, at various stages in the Pre-inquest Conference and during the conduct of the inquest to be re run.”^[48]

62. [62]
    However, it is important to note that an application to this Court pursuant to s 50 of the Coroners Act, does not engage any rehearing and is more akin to the type of strict appeal under consideration in R v VI^[49].

63. [63]
    In relation to the applicant’s contentions as to the proffer of but exclusion from consideration by the coroner of some evidence, the applicant pointed to the decision in Walter Mining Pty Ltd v Hennessey,^[50] as an example of the limitations upon seeking judicial review of rulings given by coroners and particularly in respect of asserted error as to the reception or rejection of evidence. It is pointed out that one of the identified considerations was the remedy available to the applicant in that case, under s 50(5)(d).^[51] However, those observations relate to a complaint about the wrongful admission of evidence and where that evidence must necessarily have formed part of the evidence for the purposes of applying s 50(5)(d).

64. [64]
    Otherwise, the applicant points to the following observations:^[52]

“[20] As Doomadgee v Clements and other cases show, it is well accepted that there are constraints on coroners in relation to the gathering of evidence. Her Honour expressly recognised those constraints in her Decision. The evidence must be relevant to and logically probative of the matters within the scope of the coronial inquiry.”

From there the applicant proceeds to a submission that, if there is a conclusion that the proffered but not received evidence was “relevant to and logically probative of the matters within the scope of the coronial inquiry” then they would fall into the category of new evidence.^[53]

65. [65]
    Effectively the respondents’ submission is that the concept is limited to what is otherwise described, in other appeal context, as fresh evidence. Although as may be seen, that submission, as made by the third respondent, while on the one hand correctly pointing out that the decisions in the other appeal context, do not bind the meaning in s 50(5)(a), also latches onto a basal consideration for the distinction drawn in those cases and as related to the adversarial conduct of the original hearing. Here and as has been noted, the context for the application of s 50(5)(a) of the Coroners Act is different in that regard also.

66. [66]
    However it may also be seen that the respondents approach is consistent with the relevant dictionary meanings of the word “new”; for example:

“1. Of recent origin or production or having only lately come or been brought into being …

2. Of a kind now existing or appearing for the first time …

3. Having only lately or only now come into knowledge …

7. Coming or occurring afresh; further; additional …”^[54]

67. [67]
    It can be observed that the last of those dictionary meanings is less definitive of that position and exemplifies that the distinction drawn in the appeal context, between “fresh” and “new” evidence may be effectively seen in the sense that new evidence is regarded as an expansion upon the concept of fresh evidence and in enlargement of the category of additional evidence that may be considered by the appeal court, in addition to that considered by the original decision maker. That is, the underlying premise is that the characterisation depends upon the relationship of the additional evidence to the original proceeding and the evidence there considered. In that sense, the adversarial conduct of those proceedings is a central consideration.

68. [68]
    However and for the reasons already set out, there is a different context here and the only statutory warrant is for consideration of “new evidence”. Logically and as was accepted in all submissions, what would otherwise be regarded as fresh evidence in a different appeal context, must necessarily be included. The question is whether the concept extends further and that is a question of a statutory construction, which requires attention to the statutory context and the purpose of the provision.^[55]

69. [69]
    Section 50(5)(a) sits in context with the other provisions of s 50 of the Coroners Act, to allow for the setting aside and potentially, the reconsideration of findings made by coroners, under that Act. Whilst, as has been noted, such findings do not determine any rights or liabilities, it is well recognised that there may be detrimental impact or effect upon the interests of particular persons, by such publicly recorded findings as accompany the holding of an inquest. Accordingly an underlying purpose of s 50, as particularly embodied in s 50(5)(a) and (d)^[56] is the allowance of the correction of that record, where there is available evidence that relevantly impugns the correctness or appropriateness of any such finding. That is particularly connoted in respect of paragraph (a), in the requirement that the “new evidence casts doubt on the finding”. Also it may be seen that there is a contextual connection between sub-paragraphs (a) and (d), in that the “new evidence” in (a) must logically be something that is able to be considered separately from and in addition to “the evidence” in (d).

70. [70]
    Accordingly and with the qualification that for s 50(5)(a) “new evidence” must be something that is not included in “the evidence” for the purpose of applying s 50(5)(d), the concept should not be narrowly interpreted and therefore may include evidence which was available at the time of the Inquest, or even proffered to the Coroner, if it was excluded from consideration as part of the evidence upon which the findings are premised.

71. [71]
    In R v Spina^[57], it was observed:

“[32] Australian appellate courts have long recognised an important distinction between admitting fresh evidence and admitting new evidence. Fresh evidence is evidence which either did not exist at the time of the trial or which could not then with reasonable diligence have been discovered. See Ratten v The Queen; Lawless v The Queen and R v Katsidis; ex parte A-G (Qld). New or further evidence is evidence on which a party seeks to rely in an appeal which was available at trial or could with reasonable diligence then have been discovered. The distinction between fresh and new evidence is sometimes blurred but it should remain significant for two reasons. The first is because the community has an interest in ensuring that defendants charged with criminal offences ordinarily have only one trial at which they have an opportunity to put forward all the available evidence upon which they rely. It is not in the public interest for defendants to hold back evidence so that, if they are unsuccessful at trial, they can use the withheld evidence to appeal and obtain a new trial. The second reason is that, where there is admissible fresh evidence, it is equally against the public interest for a conviction to stand as the conviction would not be based on all the available relevant evidence.

[33] In determining whether to allow an appeal against conviction based on fresh evidence, the test is whether it is established that there is a significant possibility (or that it is likely) that, in light of all the admissible evidence, both the fresh evidence and the evidence at trial, a jury acting reasonably would have acquitted. See Gallagher v The Queen and Mickelberg v The Queen.

[34] Appellate courts recognise, however, that there remains a residual discretion in exceptional cases to receive new or further evidence which is not fresh in the legal sense where to refuse to do so would result in a miscarriage of justice. See Mallard v The Queen; R v Young (No 2); R v Condren; ex parte Attorney-General; R v Main; R v Daley; ex parte A-G (Qld); and R v Katsidis. In determining an appeal which turns on new or further evidence, there are strictly two questions. The first is whether the court should receive the evidence. The second is whether that evidence, if received, when combined with the evidence at trial, requires that the conviction be set aside to avoid a miscarriage of justice. Frequently those two questions can be conveniently dealt with together.”

72. [72]
    The emphasis upon the absence of public interest in rewarding the holding back or perhaps absence of attention to gathering and presenting relevant evidence at trial, is obviously more difficult to apply to the inquisitorial process, which is entirely in the control of a Coroner. A more appropriate touchstone will be the extent to which the evidence is new in the sense of not being considered by the Coroner for the purpose of the findings that have been made.

73. [73]
    Further it can then be noted that the test to be applied is whether there is any such evidence “which casts doubt on the finding”. In the statutory context and evident purpose of s 50(5) and consistent with the approach to new evidence in the context of appeals and as referred to in R v Spina, this test imputes something that goes beyond just raising or calling into question a finding and requires the demonstration of something at least potentially amounting to a miscarriage of justice, should the finding be allowed to stand. In short, there must be demonstrated sufficiency or cogency or capacity of the new evidence, to engage the prospect of a different finding, upon reconsideration of all of the relevant evidence.

The applicant’s contentions

74. [74]
    However and as the discussion of the circumstances and contentions that arise in this case, as already set out, demonstrate and perhaps unusually in this case, the demarcation of new evidence may not, in all instances, be a bright as opposed to blurred distinction. In considering the applicant’s contentions, it will be first necessary to determine whether it has been demonstrated that the finding of the coroner as to the cause of death was not reasonably supported by the evidence considered by her. In doing so it will be necessary to identify what evidence was excluded from consideration and the extent to which any aspects of the evidence relied upon as new evidence was brought to the knowledge and attention of the Coroner. Then it will be appropriate to consider whether there is any new evidence that casts doubt on the finding.

75. [75]
    However and before doing that, it is also necessary to note that, in submission to this court, the applicant asserted that his standing to bring the application as “a person dissatisfied with a finding at an inquest”, extended to the apprehended bias of the coroner, in that the applicant apprehended “that the coroner did not bring an impartial and unprejudiced mind to the resolution of the issues”.^[58]

76. [76]
    An application was made for the coroner to recuse herself, on this ground, at the commencement of the penultimate day of the taking of evidence, at the Inquest.^[59] That application was made, in particular, in respect of the way in which the coroner had handled aspects of the evidence related to the tape recorded observations of Mr and Ms Jakeman, to the effect of them having observed debris on the roadway and particularly the coroner’s comment before having heard submissions about this evidence, that she would be giving those recordings no weight.^[60]

77. [77]
    However and as the applicant accepted, in his submissions to this court, the basis upon which this court may act to set aside a coronial finding are only those set out in s 50(5) of the Coroners’ Act and these do not expressly include any consideration of bias. However and notwithstanding this, it was submitted that the applicant’s contention of apprehended bias, remained relevant to:

“19.1 Whether evidence available at the time of the inquest but excluded by the coroner may properly be regarded as ‘new’; and

19.2 The weight that findings of credit and reliability should be given by this court; and

19.3 The reasonableness of the Coroner’s findings.”^[61]

78. [78]
    That submission was not effectively elaborated and in the context of what must be decided by this court, the apparent breadth of it is, at the very least, difficult to apply. There are in the end only two questions for this court. That is whether there is any new evidence that cast doubt on the finding and secondly, whether the finding could not be reasonably supported by the evidence. In the latter respect, it can be noted that the applicant complains that effectively the same approach to the exclusion of the tape recorded observations of the Jakemans, is repeated in the Coroner’s reasons for her finding and that is of course a matter relevant to the contention that the finding could not be reasonably supported by the evidence.

Can the finding be reasonably supported by the evidence?

79. [79]
    As has already been discussed, in this case the critical aspect of the Coroner’s finding as to the cause of death is that set out in paragraph [79] of her reasons. However that must necessarily be viewed at least in the following context:

“Findings as to the cause of the accident

Driving of Michael Miley

[74] Michael Miley and Kathryn Miley both gave consistent evidence that the deceased appeared to lose control as he rounded the corner and travelled onto the side of the road before laying down his bike. They both stated that the deceased admitted losing control of his motorcycle. The photographs established that Mr Miley did not stray onto the wrong side of the road and had in fact gone off to the left hand side of the road in an endeavour to avoid the accident. Mr Miley took appropriately evasive action.

[75] There is no evidence that Mr Miley Snr is in any way responsible for this accident and I so find.

The Drilling Work

[76] Both Golder Associates and Drillusure owed a duty of care to road users to conduct their work in as safe a manner as the exercise of reasonable care could make it.

[77] Michael Dobe, Peter Hooper and Anthony Steensen all gave evidence that at the conclusion of the drilling on the day prior to the accident a clean up had occurred. I found all of these three witnesses to be credible witnesses and I accept that a clean up did occur at the conclusion of drilling on 7 April 2006.

[78] Any evidence before this inquest that debris had been on the road as a result of the drilling was as a result of comments made by the Jakemans to other people in the area namely Caleb Fitzpatrick and to the private investigator employed by the family of the deceased. I am of the opinion that the Jakeman’s conversation contaminated the evidence of Caleb Fitzpatrick. Mr Jakeman completely resiled from his comments with regard to debris on the road in the witness box and apologised for making those statements. I found at the time of her giving evidence Ms Jakeman’s evidence to be unreliable. It is unfortunate (perhaps an understatement) that the Jakemans involved themselves in the investigation of this death because that has clearly caused distress to a number of people.

[79] There is no evidence that could be relied upon to establish that there was any debris left on the road as a result of the drilling that may have caused this accident. In fact I accept that the roadway in the vicinity of the intersection with Bourtons Road was left cleaner after the drilling then it was before in light of Mr Steensen’s evidence of sweeping the gravel off the road which had been tracked across the intersection from Burtons Road.”

80. [80]
    It can be immediately noted that there are quite separate aspects dealt with in the separate sentences in paragraph [79]. Further and to the extent that the conclusion set out in the second sentence may in any way depend upon or be influenced by the coroner’s reference to or reliance on Exhibit 3^[62], rejection of that conclusion would not necessarily impact upon the former conclusion. It is of some importance to understand that this conclusion depended upon the Coroner’s assessment of evidence other than Exhibit 3 and the evidence given as to when it was taken, by witnesses in respect of whom, the Coroner enjoyed the benefit of seeing and hearing them give evidence. The Coroner made her assessment of that evidence as follows:

“ Peter Jeffrey Hooper

[48] Peter Hooper is an employee of Golder Associates. He attended the drilling works on 7 April 2006 with Michael Dobe from Drillsure Pty Ltd and Drillsure’s employee Anthony Steensen. Hooper’s report is contained in Exhibit 1 from page 320 onwards. Hooper’s evidence was that because of the type of rock in that location they lost a great deal of water down the hole. Because one needs water to force the debris out of the hole nothing came out and they had to stop drilling. They abandoned the hole. His evidence was that they sealed the hole and swept the road. He could not recall whether it was he who swept the road or the driller. Exhibit 3 is a digital photograph of the drilling rig. Hooper’s evidence was that he had taken that photograph at the conclusion of the drilling and could identify from the photograph the white plaster of paris cap on the top of the drill hole just to the left of the steel bucket. Close scrutiny of the photograph does indicate that this is in fact the case. There is no debris on the road near the drill hole. Mr Courtney states that the fact that the person standing next to the drilling machine in Exhibit 3 cannot be identified raises doubt as to when the photograph was taken. This would require there to be a grand conspiracy involving a large number of people including Drillsure and the Men at Work whose truck can be identified in the background going back to the location setting up the drilling rig to take the photo – I cannot accept that. The photo is clear – I can see the plaster cap near the bin and I can see the road is clear of debris.

[49] I found Hooper to be a credible witness.

Michael John Dobe

[50] Michael John Dobe, Director of Drillsure Pty Ltd, the company responsible for the drilling of the bore holes. He gave evidence that the company had been contracted by Golder Associates to do the drilling work on the Yandina Bli Bli Road on 7 April 2006. His evidence was that for bore hole number 5, that is the one nearest to the intersection of Burtons Road, they were required to use an excessive amount of water. His evidence was that the hole was porous and as a result they did not achieve the dept of drilling that they intended to and they ceased drilling at 1.2 metres. His evidence was that they cleaned up after the drilling with a broom not using water to clean up. He states that the only material that would have gone onto the road from the drilling process was clear water used to blow the core barrel (sic). (T 1-75, line 48). He stated that he and his offsider, Anthony Steensen, did the cleaning up with his offsider doing the bulk of it. Mr Dobe’s evidence was that he took the photographs (Exhibit 2) and they would have been taken once they had cleaned the site. Mr Dobe’s evidence was that the photographs were taken late on the day they had actually finished the work.

[51] Later in the proceedings Mr Courtney, pointed out that in one of the photographs there is a shadow which appears to be the silhouette of the person taking the photograph. Those drill holes are on the right hand side of the road and therefore the photographer would have been standing facing in a roughly southerly direction. As the sun sets in the west one would therefore expect to see a shadow of the photographer in the photograph. None of this was specifically put to Mr Dobe but this does question exactly when the photograph was taken. Because of this I will not be relying on Exhibit 2.

[52] In general I found Mr Dobe’s evidence to be credible and I accept his evidence that the roadway had been cleaned up at the conclusion of the drilling. His evidence was consistent with the evidence of Hooper and Steensen.

Anthony Steensen

[53] Steensen was an employee of Drillsure. He recalled the work at the Burtons Road intersection of the Yandina Bli Bli Road. He recalled cleaning up the site and that he was the one doing the sweeping. He recalls cleaning the site completely including cleaning up the area on the other side of the road from where theyw ere drilling the hole. I found Mr Steensen to be a credible witness. I accept his evidence that the roadway had been cleaned after the drilling.”

81. [81]
    Further, it can be observed that it does not logically follow that any rejection of the evidence of Mr Hooper must necessarily mean that his evidence as to the site being cleaned up in accordance with ordinary or usual practice should also be rejected and even less so, that this would necessarily lead to the rejection of similar evidence from other witnesses. Moreover, it would not logically follow from a result that all such positive evidence of such a clean up being rejected, that it would or should be thereby concluded that there was debris left on the roadway. However, the situation confronting the applicant, on this application and on the Coroner’s reasoning, included her preparedness to accept the evidence as to a clean up of the relevant area.

82. [82]
    In respect of the first conclusion in paragraph [79], the applicant’s contention was that there was a collection of circumstances which supported a contrary inference or conclusion. It was contended that such a conclusion was warranted by the combined or cumulative effect of the following aspects or circumstances:

83. [83]
    For reasons that are not particularly clear, the admission of the recording of the investigator’s conversation with the Jakemans, into evidence at the Inquest, became unnecessarily problematic. It was clearly relevant and potentially probative of an issue under investigation and in the context of the evidence that was expected from and was given by Mr and Ms Jakeman, it can be observed, this was a matter that required investigation by the Coroner. However, there could be no basis for any suggestion that the Coroner was obliged to or should have accepted the recorded assertions as the best evidence, because of proximity of their making to the day of the accident. Rather it was obviously necessary for the Coroner to weigh all of the relevant evidence including any evidence given as to the making of the earlier assertions and any explanation for or other relevant considerations for any departure from those observations in the evidence given before the Coroner.

84. [84]
    It was out of exchanges in respect of the introduction of this recording that the observations of the Coroner which precipitated the application based on the contention of apprehended bias, arose. Whilst the applicant can and does point to some arguably premature and unfortunate comments about the conduct of the investigator and the circumstances in which this recording came into existence, those concerns tended to pale into insignificance, once it was determined that the recording would be played in the presence of the witnesses and admitted, so that the Jakemans could be questioned about it.

85. [85]
    Further and as can be noted, in the course of dealing with the application for her recusal, the Coroner then noted that the recording was in evidence to be considered by her, although she also then made plain her intention to have particular regard to the evidence given by the Jakemans. In that regard, it must be noted that the Coroner had the significant advantage of seeing and hearing these witnesses give evidence before her and it is important to note her full expression of reasons in the assessment of their evidence:

“ Adam Jakeman

[29] Mr Jakeman and his wife Tabitha reside at Lot 17 Burtons Road, Maroochy River and their property is near to where the accident occurred.

[30] Both the Jakemans were interviewed by a private investigator employed by the family of the deceased, Mr Munt. Mr Munt taped a conversation with both the Jakemans without advising them that he was doing so. Arising out of this taped conversation Mr Munt apparently drew up a statement for both Adam Jakeman and Tabitha Jakeman to sign.

[31] It became an issue in the Inquest as to how to deal with the tape of the conversation and those statements drawn up by Mr Munt as both the Jakemans later resiled from those statements. The Coroner’s Court is not bound by the Rules of Evidence and so in fairness to all the parties I resolved to play the taped interview between Mr Munt and the Jakemans at the Inquest in the presence of both the Jakemans with them giving evidence separately after they had heard the tape.

[32] In evidence Mr Jakeman verified that he was the person speaking in the tape and that he did say the things that were overheard on the tape (Transcript 3-22). It is clear from the tape that Mr Jakeman made quite strong statements about drilling work leaving debris on the roadway which might have contributed to the accident. The statements drawn up by Mr Munt are part of Exhibit 1 at pages 100 and 103. Mr Jakeman was not happy with the statement drawn up by Mr Munt. He believed that it was different from what he had said. He stated ‘I wasn’t particularly happy with some of the wording. I thought it was a little bit different to what I’d said and I’d asked to change it and he agreed. And then I amended it and then there was a particular point I recall I wasn’t happy with still even though I heard loud and clear what I’d said on the tape. But you know, after all the excitement and everything had died down a little bit, I didn’t really feel it was a true portrayal of the truth and that’s why in the end, I retracted it, because I felt like it was, it really wasn’t what had happened, or it possibly wasn’t what had happened. It only possibly had happened, you know what I mean?’ (T 3-23 line 19-30). Mr Jakeman could not recall whether he had contact (sic) the police or the police had contacted him but in evidence he stated ‘…I was starting to get – feel like I was getting a bit pushed to you know, provide what was wanted rather than what I really remember’ (T 3.24 line 15-18). This evidence indicated to me that I could take little notice of Mr Jakeman’s statement taken by Mr Munt.

[33] Mr Jakeman’s evidence was that where he was living on Burtons Road was slightly elevated from the accident scene. He could not see the accident scene clearly. His evidence was that there was a lot of gravel at the intersection of the Yandina Bli Bli Road and Burtons Road which gets washed down the hill by rainfall and goes straight across the road. He said the source of gravel was partially from his gravel driveway and partially from other gravel which collects at the intersection. He stated that the gravel sometimes goes right across the road. (T 3-27-28). In his evidence Mr Jakeman states that there was no debris on the roadway from the drilling and that the roadway was left cleaner than it usually was. (T 3-33).

[34] Mr Jakeman’s evidence to the Inquest was completely different from that which he had given to Mr Munt which was recorded without his knowledge. In evidence Mr Jakeman stated that he was being a bit naïve when speaking to Munt and said ‘I realise I probably caused a lot of trouble and anguish and I apologise for that’. (T 3-71)

[35] The tape recording is clearly a correct recording of what was said on the day with Mr Munt however given Mr Jakeman’s evidence at the Inquest I am unable to rely on what was stated to Mr Munt by Mr Jakeman as being the situation as to debris on the road on the day of the accident. There was evidence that Mr Jakeman spoke with the Church about the debris on the road on 1^st May 2006 however Mr Jakeman had no recollection as to what was discussed. Church did recall that one or both of the Jakemans suggested the dirt on the road had been the cause of the accident.

[36] Mr Jakeman impressed me as a truthful person when giving evidence at the Inquest and I accept his explanation as to why his evidence at the Inquest was somewhat different from what he had said to Mr Munt. Clearly the death of a young person was distressful to those people who reside near to where the accident occurred. There were discussions amongst a number of people residing near to where the accident occurred and Mr Fitzpatrick. Those people were seeking an answer as to what had caused this accident that cost the life of such a young person. It appears to me that one or other of the persons living near the accident site has focused on the drilling rig and that then has become the focus of attention of a number of people. They have in effect contaminated one another’s evidence that was given to Mr Munt.

[37] I exclude entirely the evidence of Mr Jakeman with regards to what he had said to Mr Munt from my considerations as to what had caused this accident.

Tabitha Jakeman

[38] Ms Jakeman was also recorded in conversation with Mr Munt. Ms Jakeman makes the comment in evidence to the Inquest ‘It’s not very clear in my head and I think that some of it I was told and I didn’t actually see for myself’. (T3-72 line 50) Ms Jakeman’s recollection of what she saw on the road is non-existent. It seems she has no independent recollection of what was on the road following the drilling of a bore hole on the day prior to the accident.

[39] Her evidence is unreliable and I will not be considering it.”

86. [86]
    It could not be and was not suggested that, up to and including paragraph [35], the Coroner had not appropriately summarised and assessed the effect of Mr Jakeman’s evidence at the Inquest. In relation to Ms Jakeman and whilst the applicant accepted that when giving evidence at the Inquest, Ms Jakeman expressed an absence of recollection of the events surrounding the death, it was contended that this only served to highlight the importance of her earliest recorded recollections and that she did not resile from her assertion that a police officer had shown her a photograph with a car parked over some debris on the road.^[67]

87. [87]
    In addition various contentions were raised as to some suggested unsatisfactory features of the evidence of the witnesses Hooper, Dobe and Steensen. However, there is no need to detail these. The Coroner’s specific findings in respect of these witnesses are set out above^[68] and generally, the criticisms went only to competing considerations as to what should have been made of their evidence, rather than demonstration of any absence of reasonable support for the Coroner’s findings and particularly her finding as to the cause of death. Further and to the extent that these contentions were intertwined with the applicant’s contentions in respect of Exhibit 3 and the second aspect of the conclusions at paragraph [79], as I have already observed, undermining that aspect would not be a sufficient basis for the applicant to succeed here.

88. [88]
    One inherent difficulty with the applicant’s approach is a tendency to broaden the scope of appropriate enquiry beyond that as stated to be appropriate in Hurley v Clements. In other words, the only question is as to whether the Coroner’s finding as to cause of death was reasonably supported by the evidence, rather than whether all of the Coroner’s reasoning towards a conclusion is demonstrated to be correct or reasonable. Further it will not matter how closely the record may be examined, in order to search for evidence and lines of reasoning that may be supportive of different findings, if the ultimate conclusion of the coroner is reasonably supported by the evidence.

89. [89]
    As has been noted, at the forefront of and critical to the applicant’s contentions, are criticisms of the reasoning of the coroner in dealing with the evidence of Mr and Ms Jakeman and Mr Fitzpatrick, particularly as to their observations of some dirt or gravel on the roadway. In particular, the finding at [37] to exclude from consideration the evidence of what was recorded as being said by Mr Jakeman as to the presence of debris on the road as a cause of the accident, the finding at [39] to not consider Ms Jakeman’s evidence and the failure to accept Mr Fitzpatrick’s evidence.

90. [90]
    It can be observed that, to an extent, a problem arises from the bluntness of expression, at times, employed by the Coroner and the arguments pursued by the applicant are attracted by those passages. However it is otherwise clear from the context in which those passages are found, (as set out above), that the Coroner did, in each instance, give consideration to the relevant aspects of the evidence of each of those witnesses. In other words, it is apparent that she did not reject outright or ignore those parts of the evidence of these witnesses which are relied upon by the applicant, but rather identified relevant considerations that arose as to whether she would be prepared to act upon those aspects of the evidence, in the context of the remainder of the evidence before her and make any finding of the kind sought by the applicant.

91. [91]
    What must be kept in mind is that a finding of the kind that was pursued by the applicant, would necessarily attract the principles set out in Briginshaw v Briginshaw^[69] and it is worth noting that the principles therein stated by Dixon J^[70] were expressed in the following way:

“But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must effect the answer to the question whether the issue has been proved the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produce by inexact proofs, indefinite testimony, or indirect inferences.”^[71]

And:

“This does not meant that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue may, not must, be based on a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained.”^[72]

92. [92]
    Similarly, the manner of expression of the first aspect of the critically identified finding at [79] in the coroner’s reasons was apt to attract an approach by the applicant that focused upon the mere establishment of some evidence descriptive of there being some debris on the road, as a sufficient basis to foreclose the whole question of causation. However and as it is clear that the coroner also recognised, the issue before her extended to questions as to whether any such debris was the result of the drilling operations and contributed to or was causative of the death she was investigating. On a close examination of the record, a difficulty confronting a finding of the kind sought by the applicant, becomes obvious. In particular, because it is primarily sought on the basis of evidence which, at best, did not provide any real opportunity to assess the nature and extent of any such debris on the road and therefore to provide any appropriate opportunity to assess the likelihood of contribution to the accident, let alone whether any such debris could be attributed to the drilling operations.

93. [93]
    Further it can be seen from an examination of the record and the context provided by the Coroner’s reasons as a whole, that the impugned finding at [79], was made as a result of the consideration of all the evidence admitted at the Inquest and was equally consistent with a finding that she should not, in the circumstances, make a finding of the kind sought by the applicant, and it could not be concluded that such an approach could not be reasonably supported by the evidence. For the reasons that have been set out, such a finding would not only have been clearly supported by the evidence but it would also have been entirely consistent with the overall effect of the Coroner’s reasons and her assessment of the evidence before her and would have had no different effect as to her finding as to the cause of death.

94. [94]
    Finally and more importantly in this regard, the essential problem that confronts the applicant, is that s 45(2) only requires a coroner to make a finding as to cause of death “if possible”. Accordingly and in a case like this and where a contention is made pursuant to s 50(5)(d) that the absence of a coronial finding as to a particular cause of death is not reasonably supported by the evidence, it follows that the applicant must establish that the particular finding as to the cause of death which is sought, was the only reasonable finding allowed on the evidence. For the reasons given, that is not established here and accordingly the application as far as it relies on s 50(5)(d) of the Coroners Act, should be dismissed.

Is there new evidence that casts doubt on the finding as to cause of death?

95. [95]
    Having regard to the analysis completed so far and in the circumstances outlined, with the exception of the evidence in the form of astronomical certificates, it is appropriate to then consider all of the evidence presented by the applicant as “new evidence” and for the purpose of applying s 50(5)(a) of the Coroners Act. However, I am not satisfied that any of the evidence relied upon by the applicant, as new evidence, satisfies the requirement of casting doubt on the finding as to the cause of death, in this matter.

96. [96]
    Whilst and for the reasons already recorded, there is particular difficulty in regarding the evidence in the form of the astronomical certificates (and any additional materials in the folder presented to the coroner) as new evidence, given that it was brought to the Coroner’s attention, in some detail and because of the way in which the corner dealt with Exhibit 2. Moreover the only suggested remaining relevance of this evidence was in respect of Exhibit 3 and the difficulties with that, as far as successfully underpinning this application, have already been discussed.

97. [97]
    Similarly and in respect of the additional evidence from the traffic controllers, which also has potential bearing only the probity of Exhibit 3 and also for the reasons already expressed, such evidence does not sufficiently cast doubt on the finding as to the cause of death, in the circumstances of this case.

98. [98]
    In any event, the effect of this evidence in suggesting the recreation of opportunity to take the photograph admitted as Exhibit 3, at a later time and which was canvassed in the applicant’s written submissions in terms of not being “fanciful”, because:

“The drillers were back in the area on 21 April 2006 to drill bore hole 6 and on that day, were told by Ms Jakeman that someone was killed ‘the other day and you really need to wash that off properly’”^[73];

is also directly and significantly confronted by the evidence given on this application by Mr Quinn.

99. [99]
    Otherwise, a common theme running through the remainder of the evidence put forward as new evidence, (and available from Mr Gentner and Mr Barr), is in the nature of support for the prior assertions of witnesses, as to the observation of debris on the roadway and particularly evidence relating to the prior existence or sighting of a photograph disclosing such debris.

100. [100]
     It may be accepted that whilst all of this evidence was available at the Inquest and actually included in materials put forward to the coroner, none of it was admitted into evidence or actually considered by the coroner.

101. [101]
     However the issues to which all of this evidence is directed, were engaged and considered by the coroner and the additional evidence does not have the capacity or cogency required to cast doubt on the finding as to cause of death.

102. [102]
     The evidence as to the applicants dealing with the Jakemans and Mr Fitzpatrick, adds little if anything to the situation, as was disclosed in the evidence considered by the coroner and does not materially change the complexion of that evidence. The evidence that could be added by Mr Gentner, mostly adds, at best, only marginally to what the coroner already knew and considered in respect of the evidence as to the observations by the Jakemans and Mr Fitzpatrick of debris on the roadway.

103. [103]
     The most critical aspect of this is the additional evidence as to the past existence of a photograph that did display some debris on the roadway and particularly the evidence of Mr Barr as to Mr Church’s assertions in this regard. As has already been noted and although Mr Church was cross-examined as to his conversation with Mr Barr and at one point, appeared not prepared to cavil with what had been suggested to him, the remaining tenor of his evidence was that he did not accept that he had described seeing debris on the roadway, either in connection with a photograph or a police car or at all. Further this suggestion was not consistent with the coroner’s ultimate finding in respect of Mr Church’s evidence:

“[69] Courtney submits that I should give no weight to anything Church said in evidence. I reject this submission. Whilst Church’s investigation could be criticised in some aspects and in particular for the way in which Ms Miley’s statement was obtained I am of the view that his evidence was reliable particularly that concerning his evidence that he walked the roadway and saw nothing on the roadway that caused him to believe that there was anything that caused this accident other than speed and inexperience. The conclusions reached by him were open to him.”

104. [104]
     It can be noted that this finding came in the context that the Coroner otherwise found that there were substantial reasons to be critical of the approach to and conduct of the subject investigation by Mr Church. However that did not include any reference to the cross-examination as to the conversation with Mr Barr.

105. [105]
     Further and whilst the further context, as noted in the reasons of the Coroner, included the similar conclusions reached by another police officer in excluding debris from the drilling as being causative of the accident and as the Coroner noted, the evidence from Mr Lamerton, a further police officer, was summarised by the Coroner as follows:

“[72] Initially Lamerton agreed with the conclusions of Church, that is that the deceased lost control of this motorbike and speed not appropriate for the bend was the most likely explanation. In oral evidence Lamerton resiled from this view stating that he was not happy to say that the deceased’s speed was inappropriate for the bend because there were a lot of factors in terms of why a motorbike might fall over. Lamerton referred to pebbles on the road that might have had an effect. Lamerton drew the inquest’s attention to photographs 9 and 10 of exhibit 17 which are photographs of where Burtons Road connects with the Yandina Bli Bli Road. There was earlier evidence that this gravel had been tracked out of Burtons Road by vehicles driving onto the Yandina Bli Bli Road. (Evidence from A. Jakeman).

[73] Lamerton gave evidence that if a motorcyclist was in the course of a bend and leaning the bike over then riding over a stone on the road would present a loss of friction which might contribute to an accident. (T5-108 at 35).

[74] Lamerton’s evidence was that the deceased may have lost control of the motorcycle perhaps 5 metres further back from the gauge mark on the roadway which would have been in the vicinity of the mid-point of the turning circle on the road although he could not say that with any certainty. (T5-113).”

106. [106]
     As that description of this evidence underlines, the factual issue as to whether it was established that there was relevantly any debris on the roadway is merely one part of the exercise. Moreover the problems that remain as confronting the applicant on this additional evidence, remain the same as those already discussed in respect of the evidence considered at the Inquest.

107. [107]
     It can, however, be confidently concluded that no further inquiry into this matter is going to unearth any other photograph, such as to enable positive identification of any photograph, as referred to by Mr Gentner, Ms Jakeman or possibly Mr Church in his conversation with Mr Barr.^[74] Moreover and in the absence of any such photograph and which might allow some assessment of the extent and nature of any such debris on the roadway and the likelihood of it having any contributing effect on the accident and the likelihood of any such debris being the result of the drilling operations, as opposed to having another source, it would remain, as it was before the coroner, not possible to conclude that the only reasonable conclusion was that any such debris did so contribute.

108. [108]
     Accordingly this application as far as it is also based on s 50(5)(a) of the Coroners Act, should also be dismissed.

Conclusion

109. [109]
     The application is dismissed and the parties will be heard as to the formal orders and any incidental issues.