2. To appreciate the basis upon which the application is made to the court it is necessary to say something of the circumstances surrounding the death of Lee.

3. For at least some weeks prior to 28 July 1992 members of the Special Operations Group (SOG) had had Lee, Barci and Asling under surveillance in the belief that the three men intended to commit an armed robbery in Brunswick or at Tullamarine. As the days passed it became clear to the officers involved that the robbery was likely to occur at the Ansett Freight Terminal at Tullamarine. So sure were the police that the robbery was to occur on Tuesday 28 July that at about 9 clock on the morning of that day a large number of members of the SOG were deployed in the Essendon area on standby. What occurred at Tullamarine later that day is set out in a summary exhibited to the affidavit of the plaintiffs' solicitor filed in support of the present application. The summary contains the following note on the top of page 1:

"This summary does not purport to include all the relevant

evidence in this case. It is provided only as an aid to the

police prosecutor and does not form part of the evidence or

inquest brief."

4. I stress the fact that the summary does not form part of the evidence or inquest brief; it has obviously been prepared from statements made by the police officers involved in the incident, statements which may well be the subject of challenge at the inquest. Nevertheless, it will give a sufficient description of the circumstances surrounding Lee's death for present purposes. The relevant section of the summary reads:

"At about 1.16 pm. on Tuesday 28 July 1992 a stolen white Ford

panel van registered number DPB 605 was observed to park in front of

the Ansett Air Freight Terminal in Service Drive, Melbourne Airport.

The vehicle was parked at the extreme northern end facing towards

Service Road. The driver was identified as Stephen Asling. Earlier,

a gold coloured BMW registered DCW 338 was parked at the Gladstone

Park Shopping Centre. At about 1.10 pm a Toyota Corolla EIC 711

was parked in Derby Street, Tullamarine, by Stephen Barci. Barci was

seen to enter the rear of the panel van DPB 605 driven by Asling. As

Asling was parked near the air freight terminal, he was constantly

observed to be looking in the direction of the Ansett Cargo Office.

After about 15 minutes he got out of the car and opened the bonnet

of the vehicle and looked at the motor.

At about 1.45 pm an Armaguard van attended at the Ansett Air

Freight Terminal driven by Harold Thomas. In the rear of the van

were two other employees, Dean Rook and Richard Mantle. The

Armaguard van reversed into an area just in front of the air freight

terminal and they began to unload red bags containing cash and

cheques. As this was happening Asling reversed the stolen white

panel van towards the armoured vehicle. Stephen Barci and Norman Lee

then exited the rear of the panel van both armed with loaded hand

guns. Each was wearing a mask and gloves. They both entered the

Ansett Freight Office and held up the staff at gun point. Thev stole

three red bags containing cash and cheques to the value of

$1,020,000. The two offenders then ran from the freight office

towards the white panel van dragging the red bags. They reached the

panel van and began loading the red bags into the rear of the van.

At the same time Inspector Knight from the SOG gave the instruction

to all SOG units to apprehend the offenders. Sergeant Hateley who

was in charge of the SOG arrest team directed the van he and four

other members were in to intercept and arrest the offenders. They

were driving an unmarked white van with a sliding side door and a

rear lifting door. Senior Constable Duncan from the SOG was driving

that vehicle and Hateley, Harwood, Hehir and Martin were in the rear

of the van.

Duncan pulled up about 15 metres in front of the white panel van

driven by Asling. Immediately after that Hateley and Harwood exited

the SOG vehicle from the side door and Hateley had his firearm

pointed at the vehicle driven by Asling. Hateley yelled to Asling,

'Police. Don't move.' Asling, who was wearing a mask and wig, then

accelerated and drove forward. As he did this, Hateley fired a shot

into the front left-hand wheel of the vehicle driven by Asling. As

that shot was fired, the vehicle was almost beside Hateley. Hateley

fired the shot in order to immobilize the vehicle with the intention

of not harming the driver or anyone else. The panel van then drove

past Hateley at a fast rate of speed. As this occurred, the two

offenders that were attempting to enter the rear of the panel van

were forced out by the momentum of the panel van accelerating away.

Both offenders were still armed and then began to chase after the

panel van. Hateley then observed the two men to his left. He

observed that one of the offenders had a silver hand gun aimed at

him and that this offender was running towards him. (That offender

was in fact Lee.) Hateley had his firearm aimed at this offender and

called to him, 'Police. Don't move.' This offender then appeared to

lower his firearm as if to comply with Hateley's instructions.

Almost immediately he raised the firearm and again pointed it at

Hateley in a threatening manner. Hateley then discharged his firearm

once in self-defence. Hateley stated that he was in fear of his own

life as well as the safety of other members present. At the same

time that Hateley fired, a second SOG member, Senior Constable

Harwood, was standing beside Hateley. Harwood made the same

assessment of the situation and fired almost simultaneously. As this

was occurring the second offender Barci had run in a northeasterly

direction following the white panel van. SOG members, Hehir and

Martin, had exited their vehicle from the rear and confronted Barci

who was armed with a silver hand gun. Barci aimed his firearm at

Hehir. Barci was side on to Hehir with his left side towards Hehir

and the firearm in his right hand. Hehir called on Barci to drop the

firearm. He then fired on Barci. The shot appeared to strike him in

the vicinity of the left shoulder and chest area. The impact forced

Barci to his left so that his right side was facing Hehir. Barci

still had his firearm trained on Hehir. Hehir fired a second time

striking Barci in the vicinity of the right upper arm. This impact

made him stumble backwards and he fell to his knees. The firearm was

still pointed at Hehir. Hehir then fired another shot which appeared

to strike Barci in the vicinity of his left side under his arm in

the area of his ribs. Hehir has only a recollection of firing three

shots but when he later emptied the shotgun for the ballistics

expert it became obvious that he had fired five times. Hehir is

unable to recount where these other two rounds had hit. Senior

Constable Martin also raised his firearm at Barci as Hehir began to

fire but did not fire because Barci had moved and that placed Hehir

in Martin's line of fire. At the time of firing Hehir stated that he

was in fear of his life and that he fired to protect himself and

others around him.

The white panel van driven by Asling then continued into Service

Road and then east along Depot Drive at a fast rate of speed. It

then collided head on with an SOG cut-off vehicle in Depot Drive.

The SOG cut-off vehicle was being driven by Senior Constable Taylor

and contained Sergeant Ross and Senior Constables Russell and

Wickham. The SOG vehicle crossed the median strip and blocked the

path of the white panel van. The white panel van did not slow down

or deviate from its path and collided head-on with the SOG vehicle.

After the accident, Asling was immediately arrested and taken into

custody."

5. The two shots fired at Lee struck him in the back of the head causing his death. The shots which struck Barci virtually blew away the top of his left shoulder leaving him with a severe permanent disability.

6. In due course, Barci and Asling were charged with a number of serious offences arising from the events of 28 July and also a number of offences arising from earlier armed robberies in which the two men had been involved.

7. In September 1993 Asling and Barci appeared before the County Court at Melbourne in relation to the charges. Asling pleaded guilty to all counts and was sentenced to an effective term of 15 years' imprisonment with a non parole period of 10 years being fixed. Barci pleaded guilty to all but two of the counts and was also sentenced to an effective term of 15 years' imprisonment. A similar non-parole period of 10 years was fixed. In February 1994 Barci appeared before the County Court at Melbourne where he pleaded guilty to the two remaining counts. The sentence imposed on him on that occasion did not alter the effective term of imprisonment imposed upon him in September 1993.

8. Both Barci and Asling applied to the Court of Criminal Appeal for leave to appeal against the sentences imposed on them. On 3 November 1994 Asling's appeal was dismissed. On the same day the Court of Criminal Appeal granted Barci's application, treated the appeal as instituted, and heard instanter, and allowed the appeal. The court then imposed an effective sentence of 12 years' imprisonment on Barci and fixed a non-parole period of 7 years. I think it is fair to say that Barci's sentence was reduced by reason of the disabilities now suffered by him as a consequence of the injuries he received on 28 July 1992.

9. I have drawn attention to the fact that Barci and Asling have been dealt with in respect of the offences they committed on 28 July 1992 because different considerations may well have applied in the event that they were still to face trial in respect of those offences.

10. On Monday last the inquest into the death of Lee commenced before the Coroner. Counsel sought leave to appear for Barci and Asling pursuant to the provisions of s.45(3) of the Act which reads:

"A person with a sufficient interest may appear or be

represented by a barrister and solicitor or, with permission of

the coroner, by any other person, and may call and examine or

cross-examine witnesses and make submissions."

11. The Coroner refused the application on the ground that Barci and Asling had not demonstrated that they had a sufficient interest in the inquest or the outcome of the inquest to justify granting the application.

12. Nowhere in the Act is there a definition of "sufficient interest", nor in the limited time available to me have I been able to find any authority directly in point. However, during the course of discussion, counsel referred me to the decision of the High Court in Annetts and Anor. v McCann and Ors. [1990] HCA 57; (1990) 170 CLR 596 and certain of the observations their Honours there made in relation to a somewhat similar provision in the Coroners Act 1920 of Western Australia. Section 24(1) of that Act reads:

"At any inquest, any person who, in the opinion of the coroner,

has a sufficient interest in the subject or result of the

inquest -

(a) may attend personally or by counsel; and

(b) may examine and cross-examine witnesses; provided that such

examination and cross-examination -

(c) is relevant to the subject of the inquest; and

(d) is conducted according to the law and practice of coroners'

inquests,

and the coroner shall disallow any question which, in his

opinion, is not relevant or is otherwise not a proper question."

13. It will be noted that unlike the provision in the Victorian Act there is a reference in the sub-section to the coroner forming an opinion.

14. In considering s.24 of the Western Australian Act the majority of the court (Mason CJ, Deane and McHugh JJ) said at p.600:

"Against this background, the terms of s.24 of the Act provide no

ground for concluding that the Act evinces any intention to exclude

the operation of the principles of natural justice. The evident

purpose of the section was to abolish a coroner's discretion and to

give interested parties the absolute right to attend the inquest, to

examine and cross-examine witnesses, and to be represented by

counsel. The terms of s.24, therefore, are explicable on historical

grounds and provide no basis for concluding that the legislature

intended to exclude the rules of procedural fairness except to the

extent specified in that section. But, independently of the

historical background of s.24, it is impossible to accept that the

legislature, in enacting that section, intended to exclude the rules

of natural justice. It simply would not have occurred to anyone in

the legal profession in 1920 that the common law rules of natural

justice applied to an inquiry whose findings could not alter legal

rights or obligations. No doubt the legislature assumed that the

rights of natural justice did not apply to coronial inquiries. But

that is no ground for concluding that the legislature intended to

exclude those rights if they were otherwise held to apply.

Apart from s.24, nothing else in the Act provides any support for

the proposition that the Act excludes the rules of natural justice.

Accordingly, the rules of natural justice are applicable to the

present inquest. That being so, the Coroner cannot lawfully make any

findings adverse to the interests of the appellants without first

giving them the opportunity to make submissions against the making

of such a finding."

15. Clearly, their Honours were emphasizing the following points.

l. A coroner is bound to observe the rules of natural justice.

2. An interested party (referred to in the Victorian Act as "a person with a

sufficient interest") has an absolute right to attend the inquest, to examine and cross-examine witnesses, and to be represented by counsel.

3. A coroner cannot lawfully make any finding adverse to the interests of a person without first giving that person the opportunity to make submissions against the making of such a finding.

16. However, their Honours did not consider the criteria for determining who may or may not be an interested party.

17. It would seem to me that whether a person has a sufficient interest in an inquest or the outcome of an inquest is a question of fact to be determined after a consideration of the circumstances surrounding the death of the deceased. If a person is closely related to the deceased by birth or marriage or by having lived in a de facto relationship with the deceased, then, in my view, that person would have a sufficient interest. Similarly, if the deceased met his death during the course of his employment, his employer would have a sufficient interest justifying the grant of leave to appear and to be represented. One can envisage many relationships between the deceased and other persons which may entitle those other persons to appear at the inquest and be represented by counsel, e.g. the teacher of a student killed whilst on a school excursion, the commanding officer of a soldier killed on a peacetime manoeuvre. Any person whose actions may have caused or contributed to the death of the deceased would be entitled to representation. Clearly, a person has a sufficient interest in an inquest or the outcome of an inquest if there is a reasonable prospect that the coroner may make a finding adverse to the interests of that person.

18. It is clear from the summary to which I earlier referred that the case for the police officers involved in the shooting will be that they acted in lawful self-defence. There can be little doubt that that will be challenged by the relatives of Lee and by Barci and Asling. In my opinion, it is arguable that it would be adverse to the interests of Barci and Asling if the coroner made any such finding. Clearly, there must be a reasonable prospect of such a finding being made.

19. In the reasons for her ruling, the coroner adverted to the fact that she is not concerned with the manner in which Barci sustained his injury as, in her view, that was a separate incident. While, strictly speaking, that is correct, it would seem to me to be difficult in the circumstances of this case for the coroner to isolate the two incidents. They occurred in such close proximity to each other, both in time and space, that both incidents will be the subject of evidence before the coroner and it would be surprising if the coroner did not make findings in relation to them. On that ground alone I consider Barci and Asling are entitled to be represented. However, the matter does not rest there.

"A coroner investigating a death must find if possible -

(a) the identity of the deceased; and

(b) how death occurred; and

(c) the cause of death; and

(d) the particulars needed to register the death under the

registration of Births Deaths and Marriages Act 1959; and

(e) the identity of any person who contributed to the cause of

death."

21. One asks - is there a reasonable prospect of the coroner finding that Barci and Asling contributed to the death of Lee? In my opinion, the answer to the question posed is - Yes. In the circumstances of this case it may be open to the coroner to find that by their actions that day Barci and Asling contributed to Lee's death. I do not for one moment suggest that the coroner will make such a finding. I simply say that, in my view, there is a reasonable prospect that she might.

22. In my opinion, Barci and Asling were so inextricably involved in the events which led to the death of Lee as to qualify as persons with a sufficient interest within the meaning of s. 45(3). I can see no reason why any distinction should be made between them and the members of the National Crime Authority involved in the surveillance of Lee, Barci and Asling, and those members of the SOG who did not fire the shots which killed Lee but were members of the team which handled the police operation that day, all of whom have been given leave by the coroner to be legally represented.

23. In my view, the plaintiffs are entitled to their costs of the application. I order that the plaintiffs' costs of the application be taxed and paid by the defendant, and I reserve to the parties liberty to apply.