Mauceri v Deputy State Coroner MacMahon and ors.

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

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

The amended summons names the following three defendants:

The Attorney-General and the Commissioner actively participated in the proceedings. The Coroner filed a submitting appearance.

A joint Court Book prepared by the parties was tendered and admitted as Exhibit A in the proceedings.

The factual background is not in dispute. The following summary is drawn from the reasons of the Coroner which were handed down on 16 January 2015.

James Ciaparra (“the deceased”) was born on 3 December 1998 and was the son of the plaintiff and Jeffrey Ciaparra. At the time of his death he was 14 years of age. In 2013 the deceased resided with the plaintiff at Green Valley in south western Sydney, and was enrolled at the James Busby High School. He owned a black and purple coloured BMX pushbike.

Hayden Davis (“Davis”) was a 15 year old boy who lived in the same area as the deceased. When aged 12, Davis was taught how to assemble and ride a “Gasman”, which is an adult mountain bike with an engine attached to it. The engine kit can be purchased on internet sites such as eBay, or from retailers of motorbikes and accessories, at a cost of less than $200.00.

In about August 2013, Davis and the deceased began to socialise with each other. From time to time they would go riding together, the deceased riding his BMX pushbike, and Davis his Gasman. At about that time the deceased told Davis that he too would like to own a Gasman.

On 7 October 2013, the deceased and Davis agreed to swap their respective bikes. Davis had been trying to sell his Gasman but had not been offered what he considered to be an acceptable price. The deceased wanted to own a Gasman, but did not have the money to purchase one. Accordingly swapping the bikes met their respective needs at the time. On 7 October 2013 the deceased took Davis’ Gasman for a ride before returning it to Davis’ premises at 9:00pm to collect some oil and a bike chain. Having done so, the deceased rode the Gasman away from Davis’ premises.

At about 9:15pm on 8 October 2013 a police patrol car, Green Valley 37 (“GV37”) was travelling on Cartwright Avenue, Miller and was being driven by Constable Strzelecki. His partner, Constable Davila, was the passenger. They observed a motorised bike, without lights and other safety devices, swerving harshly before turning from Cartwright Avenue into Miller Road. They followed the bike into Miller Road. Warning devices were activated in an attempt to get the rider (later identified as the deceased) to stop, but they were subsequently deactivated.

The deceased continued along Miller Road and then turned right into Southdown Street, with GV37 following. The deceased then proceeded towards Banks Road which forms a T-intersection with Southdown Street. He collided with a vehicle travelling south along Banks Road and was thrown from the bike. He was then hit by a vehicle travelling north along Banks Road.

Constables Strzelecki and Davila stopped in GV37 and rendered assistance to the deceased. An ambulance was called and the deceased was taken to Liverpool Hospital. In the early hours of 9 October 2013 the deceased died during emergency surgery. His death was reported to the Coroner’s office later that day.

An inquest into the deceased’s death was held before the Coroner on 28 November and 9-10 December 2014. The evidence at the inquest focussed upon the manner of, and the circumstances that led to, the deceased's death, the involvement of the police in those circumstances, and whether or not it was necessary or desirable to make any recommendations in accordance with s. 82 of the Coroners Act 2009 (NSW) ("the Act") in relation to any matter connected with the deceased's death. The Coroner handed down his findings on 16 January 2015. He found (inter alia) that the direct cause of the deceased’s death was massive blood loss, and pulmonary haemorrhage, due to severe trauma following a motor vehicle collision.

I have considered below those particular aspects of the Coroner’s findings which bear upon the individual grounds which are relied upon by the plaintiff in support of the relief sought.

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

The plaintiff in the present case relies on s. 85 of the Act for the relief sought. That section confers a discretion on this Court in the following terms:

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

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

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

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

All of these decisions were cited by Hidden J in Cecil v Attorney-General of NSW and anor [2012] NSWSC 1186 at [47]-[50].

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

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

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

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

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

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

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

Importantly, for the purposes of this ground, Constable Strzelecki was asked the following (commencing at Q.134):

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

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

In answer to Q.27, Constable Davila described the deceased’s manner of driving as “reckless”. He said that it was this reckless manner of driving which explained why he and Constable Strzelecki intended to stop the deceased “just to find out what he’s doing, um, and possibly see if we could search him, and, and all that sort of stuff”.

Constable Davila also explained (at Q.44 and following) that the lights and sirens of GV37 were activated for about five seconds, at a time when the deceased was travelling about four or five metres in front of the vehicle. He said that the deceased looked around when the lights were activated but did not stop, following which the siren was activated in the hope that it would motivate the deceased to do so. In answer to Q.53, Constable Davila said:

At Q.70 and following, Constable Davila explained that the lights and sirens of GV37 had been turned off when it was about half way between Cartwright Avenue and Southdown Road, and that they remained off between that point and the collision. The lights were re-activated when the police vehicle stopped at the scene.

Constable Strzelecki and Constable Davila both gave evidence before the Coroner.

Constable Strzelecki said (Exh. A at p. 709 L30 and following) that he was aware of the existence of the Policy and that at about the time of the death of the deceased there had been an ongoing issue regarding the use of Gasmans by teenagers (commencing at p. 710 L7). He was then asked about making a decision to engage in the pursuit of another vehicle (commencing at p. 711 L20):

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

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

Constable Strzelecki stated (at p. 720 L5-7) that after the deceased looked back at him, he turned off the lights and sirens and “just continued at, pretty much let off the accelerator and just continued to roll down Miller Road.” He estimated his speed at that time as not exceeding 40km per hour (at p. 710 L9-13).

Constable Strzelecki then described seeing a “flash” as the deceased turned right into Southdown Street. He was then asked (commencing at p. 720 L39):

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

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

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

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

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

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

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

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

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

The Coroner then continued (at p. 852):

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

Counsel for the plaintiff submitted that the Coroner’s findings disclosed error because they failed to have regard to the second paragraph of the definition of “pursuit” as it appears in the Policy (as set out at [24] above). It was submitted that there was no rational or logical relationship between the first two paragraphs of the definition, and that they should be interpreted as referring to separate scenarios which described the circumstances in which a pursuit could commence. It was submitted that if the Coroner’s finding that a pursuit could only commence upon a decision being made to do so by a police officer was correct, the second paragraph of the definition would be otiose.

It was further submitted that such an approach was consistent with the objectives of the Policy. It was submitted that if the Policy was read in a way that rendered the subjective intention of a police officer a pre-requisite of a pursuit, it would lead to absurd (and dangerous) results, the most obvious being that an officer could choose to ignore the safeguards in the Policy on the basis that he or she did not regard himself or herself as being engaged in a pursuit.

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

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

It was submitted on behalf of the Commissioner that the Coroner’s conclusions disclosed no error, and that the meaning of the word “pursuit” was to be derived from the text in which it appeared. It was submitted that the Coroner’s findings were consistent with the terms of such text.

Counsel for the Commissioner submitted that the plaintiff’s construction of this part of the Policy proceeded on the erroneous basis that the second paragraph of the definition identified an alternative, and independent, set of circumstances constituting the commencement of a pursuit. It was submitted that such an interpretation should be rejected because:

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

In the present case it was Constable Strzelecki’s evidence that he informed the deceased that he wished him to stop by activating the lights and siren on GV37. That was ignored by the deceased, who in fact sped up. Constable Strzelecki was adamant that he had made a conscious decision not to pursue the deceased, at about that point. The Coroner accepted that to be the case.

There are many reasons why, as a matter of sensible police practice, the decision as to whether or not to commence a pursuit in circumstances of the kind which prevailed in this case would be left to a person in the position of Constable Strzelecki. There also exist good reasons of public policy why there should be a clear definition as to the point at which a pursuit commences. It is clear from Constable Strzelecki’s evidence that at any given time, there may be a variety of prevailing factors to be considered in determining whether to institute a pursuit. That this is so is reflected in paragraph (1) of the Pursuit Guidelines (at [25] above). Constable Strzelecki was clearly in the best position to consider and weigh those factors. Far from producing the absurd result suggested by counsel for the plaintiff, the Coroner’s findings sensibly recognise, consistent with the terms of the Policy, that a determination of whether to commence a pursuit is a matter for the officer who is, as it were, “on the ground” at the time.

The evidence of Constable Strzelecki in these respects was entirely compelling. It was clearly open to the Coroner to accept that evidence, and he did so. Having done so, it was also clearly open to the Coroner to conclude, by reference to terms of the Policy, that no pursuit had commenced.

The logical construction of the second passage of the definition of pursuit in the Policy is that it seeks to amplify and illuminate circumstances in which a vehicle has ignored a direction to stop. The clear and unequivocal terms of the first paragraph require a positive decision to be made to engage in a pursuit. Paragraph (2) should not be read as identifying some other set of circumstances in which a pursuit could be said to have been commenced.

The Coroner’s interpretation gives effect to the plain words of the Policy and his assessment of the evidence of Constable Strzelecki was clearly open. For all of these reasons, this ground is not made out.

I have set out the evidence of Constables Strzelecki and Davila in respect of the issue of whether there was a pursuit in my consideration of the first ground. I have also set out (at [49] – [52] above) the Coroner’s summary of the evidence along with the findings which are relevant to this ground.

A statement of Det. Superintendent Johnson formed part of the evidence before the Coroner. Det. Johnson had been the Commander of the Green Valley Local Area Command since 26 September 2011, which covered the location at which the deceased was killed. At paragraphs 2 and following of his statement, he explained that as the Local Area Commander, he had the responsibility for regularly attending numerous community meetings, including those of a group known as to “2168 Management Committee” which comprised representatives and officials from various agencies. This committee was established in 2002 with a view to improving services, facilities and opportunities for the residents within the area covered by the 2168 postcode. Det. Johnson explained that the subject of persons riding motorised pushbikes had been raised at those meetings on a number of occasions, and that local residents had aired their concerns about the way in which such bikes were ridden, the danger that they posed to pedestrians, the noise they emitted, the speed at which they were ridden and the young age of the riders.

Det. Johnson observed that during the two year period leading up to the death of the deceased there had been a significant increase in the use of motorised pushbikes in the area, both on the roadway and on footpaths. He described having observed the pushbikes being ridden in what he regarded as a dangerous manner, in complete disregard of prevailing traffic conditions and road rules.

In paragraph 8 of his statement, Det. Johnson said:

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

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

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

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

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

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

Counsel for the Attorney-General submitted that a considerable amount of the evidence before the Coroner went to the issue of whether or not Constable Strzelecki had commenced a police pursuit. It was submitted that in conducting the inquest, the Coroner was under an obligation to consider (inter alia) the factual circumstances leading up to the collision, to interpret the Policy, and to then apply the Policy to the facts found. It was submitted that ultimately, the proper construction of the Policy was a matter for the Coroner, and that any opinion advanced by Det. Johnson was of limited assistance in relation to that determination.

It was further submitted that the Coroner had indicated to counsel for the plaintiff that construction of the term “pursuit” was, in effect, an issue which was more appropriately dealt with in submissions, and that the transcript reflected that counsel for the plaintiff had utilised the opportunity provided to him at that time to make such submissions about the construction of the Policy, and its application to the facts.

It was submitted that the Coroner was under no statutory obligation to set out all of his reasons for his findings and recommendations, and that in these circumstances no inference should be drawn that the Coroner had failed to consider the entirety of the definition of pursuit (particularly in circumstances where he set out the entirety of such definition in his reasons).

It was further submitted that there was no error in the Coroner expressing doubt about the relevance of the opinions of Det. Johnson as to the meaning of the Policy. This, it was submitted, was because the Policy was to be construed according to its terms, and not according to the opinion of a police officer.

It was submitted, in particular, that the plaintiff had not pointed to any material evidence which could have been given by Det. Johnson regarding the meaning of any provision of the Policy, let alone any evidence which gave rise to any real possibility that different findings and recommendations would have been made by the Coroner had any further evidence been given. It was submitted that beyond mere speculation, the plaintiff had advanced no reason why any further cross-examination of Det. Johnson would have led to particular consequences, or why such matters as may have been sought to be put to him in further cross-examination were not otherwise sufficiently addressed in the course of the inquest, and in final submissions.

Finally, it was submitted that the plaintiff’s complaint under this ground effectively amounted to a challenge to an interlocutory decision to reject a particular line of questioning. That, it was submitted, was a matter in respect of which this Court would be extremely reluctant to intervene, particularly in respect of a decision made by the Coroner, who was not bound by the rules of procedure and evidence. More generally, it was submitted that there was nothing advanced by the plaintiff which established any failure on the part of the Coroner to make some inquiry which any reasonable Coroner would have made.

The issue of whether a police pursuit was commenced was to be determined, at least in part, by the acceptance or rejection of the evidence of Constable Strzelecki. The Coroner accepted such evidence, as he was entitled to do. His Honour’s findings reflect a consideration of both the evidence and the submissions of the parties. The extent of his Honour’s treatment of the evidence, as well as the findings themselves, are fundamentally at odds with the proposition that the enquiry was in some way insufficient.

His Honour curtailed the examination of Det. Johnson in circumstances where that officer had already given evidence expressing his opinion in respect of a number of aspects of the use of Gasmans within the area of his command. Even allowing for the fact that the Coroner was not bound by the rules of evidence, any assistance to be gained from the opinions of Det. Johnson as to the interpretation of the policy was limited to say the least. Moreover, the Coroner did not “shut down”, as it were, the plaintiff’s cross-examination of Det. Johnson. Counsel then appearing for the plaintiff accepted the opportunity extended by the Coroner to address the issue in final submissions.

The approach taken by the Coroner to the evidence of Det. Johnson was one which was entirely open to him. It is also important to bear in mind that prior to his Honour’s intervention, considerable scope had been given to Counsel in his cross-examination of Det. Johnson. Counsel for the plaintiff before me did not articulate how any further cross-examination would have assisted the Coroner in reaching any relevant conclusions.

It follows that this ground is not made out.

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

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

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

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

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

Counsel for the Commissioner also submitted that the arguments advanced by the plaintiff in respect of these grounds only became material if it were concluded that the Coroner had erred in the way in which the plaintiff had contended in respect of the first ground.

In addition, counsel for the Commissioner pointed to the fact that the plaintiff had advanced four particular assertions in support of these grounds, namely that:

It was submitted, for a number of reasons, that whether viewed individually or collectively, these matters did not give rise to any basis on which this court should intervene.

Firstly, it was submitted that the plaintiff was required to establish that a finding was not open before a factual dispute could engage the discretion in s. 85 and that, properly viewed, the suggestion that the Coroner’s findings were “not reflective” of the evidence was really a thinly disguised application for a merits review.

Secondly, it was submitted that the Coroner had the advantage of seeing the witnesses give evidence, and hearing submissions, over a number of days, and that the assertion that the Coroner did not conduct a sufficient analysis of the evidence did not engage any recognised category of appellate intervention.

Thirdly, it was submitted that in any event, the reasons given by the Coroner referred to each of the witnesses, and the key aspects of their evidence. It was submitted the Coroner had no duty to recite the entirety of the evidence, and that this Court should not apply an overzealous approach in scrutinising the Coroner’s reasons: Collector of Customs v Pozzolanic Enterprises Pty Limited (1993) 43 FCR 280 at 287.

Finally, it was submitted that these grounds, even if substantiated, only became material if the Coroner had erred in his construction of the Policy. It was submitted that for the reasons previously advanced his Honour did not do so.

To some extent these two grounds seek to re-agitate the plaintiff’s principal complaint regarding his Honour’s conclusion that no pursuit had been commenced. For the same reasons as those I have already expressed, the findings were clearly open to the Coroner in that respect and it is clear that his Honour took into account the evidence in reaching that conclusion.

Moreover, there is no merit in the suggestion that there was an insufficiency of enquiry. The Coroner’s findings are inconsistent with that assertion. The plaintiff’s case in this regard appeared to be predicated on the proposition that the Coroner’s reasons were to be minutely construed. That is not the proper approach.

Accordingly, neither ground is made out.

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

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

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

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

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

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

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

It was submitted that in determining the reasonableness of Constable Strzelecki’s actions, the Coroner had taken into account those factors which either increased or decreased the risk, and had weighed them in the balance. It was further submitted that neither the fact that additional steps could have been taken, nor that a different conclusion might have been open, was a basis for a finding by this Court that the conclusion reached by the Coroner was not open on the evidence.

Finally, it was submitted that the fact the plaintiff might be dissatisfied with a conclusion reached by the Coroner was not a proper basis on which to seek an order quashing an inquest, nor was it appropriate to quash an inquest on the basis that a different conclusion might have been reached on the evidence. It was submitted that the plaintiff was required to show that there was some error in the Coroner’s decision, and that she had failed to establish any error having regard to the terms in which this ground was pleaded.

Counsel for the Commissioner submitted that the Coroner’s conclusion that the conduct of the police was reasonable was an evaluative judgment, one which the Coroner was well positioned to make, and one which was clearly supported by the evidence. In support of that conclusion, it was submitted that there was obvious logic in a police officer slowly following a vehicle, driven by a person who had proceeded erratically and who had ignored a direction to stop, in order to ensure that other officers could be informed of the vehicle’s location.

Finally, it was submitted that this ground did not go to any particular finding made by the Coroner in the exercise of his power under s. 81 of the Act, but appeared to be addressed to a contention that the Coroner should have made some recommendation(s) under s. 82(1) criticising the officers involved. It was submitted that in light of the breadth of the Coroner’s powers under s. 82 of the Act, this Court would be cautious in quashing a decision because of an asserted failure on the part of the Coroner to make such recommendations.

In my view, the entirety of the findings made by the Coroner were clearly open. On the evidence before him, the deceased was driving erratically, at speed, without lights, without safety devices, and with a clear intention of avoiding the police. Clearly, a pursuit of the deceased in the way contemplated by the Policy had the potential to cause great danger, not only to him but to other members of the public. The findings expressed by his Honour, following his analysis, of the reasonableness of the course taken by the police were findings that he was clearly entitled to make on the evidence.

The evidence of Constable Strzelecki was that he followed the deceased, at an ever decreasing speed and at an ever increasing distance. The purpose of doing so was to see where the deceased went so that Constable Strzelecki could inform others of his position.

In light of the evidence, I do not accept the submission made on behalf of the plaintiff that a vehicle cannot be “followed” without being “pursued”. Clearly, the Coroner accepted the evidence of Constable Strzelecki as to why he followed the deceased, and the manner in which he did so. Once again, the acceptance of that evidence was a matter entirely for the Coroner. Whilst Constable Strzelecki was clearly following the deceased, he was not “pursuing” him in the sense contemplated by the Policy because (inter alia) he had made a decision not to do so.

It follows that this ground is not made out.

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

It was submitted that a decision that there be a new inquest was justified because there was evidence before the Coroner to the effect that:

It was further submitted that there was no cogent evidence of the deceased being involved in any serious criminal behaviour, and that there was, as a consequence, a “strong argument” that the police officers had a heightened responsibility to ensure that their actions did not inadvertently increase the level of danger arising from the deceased’s use of a Gasman.

Finally, it was submitted that the findings of the Coroner did not meet the objective of fully examining and reviewing a death that occurred in the course of a police operation. This, it was submitted, had “stymied the potential for valuable lessons to be learnt from (the deceased’s) tragic death”.

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

Counsel for the Commissioner submitted that even if a ground of intervention under s. 85 of the Act was made out, I would not be satisfied that it was necessary or desirable in the interests of justice to quash the Coroner’s decision and order a fresh inquest. A number of matters were advanced in support of that submission.

Firstly, it was submitted that there was a strong public interest in coronial decisions being final and that the public interest was not advanced by seeking to reopen decisions based upon what were only differences of opinion.

Secondly, it was submitted that the plaintiff had delayed the institution of these proceedings, in circumstances where there was a strong public interest in making prompt applications for review of administrative decisions.

Thirdly, it was submitted that the plaintiff had not taken any steps to seek to have the Coroner order a fresh inquest.

Fourthly, it was submitted that the Coroner’s approach disclosed no ambiguity in terms of the Policy, and that on the contrary, the effect of the Coroner’s decision was to give clear guidance as to its meaning.

Finally, it was submitted that the Coroner had turned his mind to recommendations which he saw as appropriate to make, and that the plaintiff’s case manifested no more than a “wish” that the Coroner had made further recommendations.

Counsel for the plaintiff conceded that this ground encompassed, to a greater or lesser extent, the matters canvassed in the previous grounds. As none of those grounds have been made out it follows that this ground must meet with the same fate. However, some additional observations should be made in light of the submissions advanced on behalf of the plaintiff in support of this ground.

As I have previously outlined, in order for the plaintiff to succeed in these proceedings there must exist a reputable body of evidence which, if accepted, would indicate that the Coroner’s finding as to the manner and cause of death of the deceased was erroneous: Herron (per McHugh JA) at 617; Country Energy at [40]. For the reasons that I have expressed, there is no such evidence in the case. I can appreciate that in the circumstances, the plaintiff may be dissatisfied with the Coroner’s conclusions. However, mere dissatisfaction with a conclusion is not sufficient to engage the discretion conferred by s. 85 of the Act.

It may well be that the nature of the events leading up to the death of the deceased was a reasonably common one. It may also be the case that the dangers of Gasmans were well known to, and shared amongst, a large number of people within the community, including the police. None of those matters justify the making of the orders sought.

Moreover, even if it is accepted that the police officers involved had a heightened responsibility to ensure that their actions did not inadvertently increase the level of danger arising from the deceased’s use of the Gasman, there is nothing in the evidence to suggest that such a responsibility was other than fully and properly discharged. Indeed, the effect of the Coroner’s findings was that the police acted wholly responsibly, and that nothing that they did increased, be it inadvertently or otherwise, the level of danger which arose from the deceased’s actions. For the reasons that I have already expressed, those findings were certainly open.

I make the following orders: