Country Energy v Deputy State Coroner Paul MacMahon and Anor - [2010] NSWSC 943 - NSWSC 2010 case summary — Zoe

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Country Energy v Deputy State Coroner Paul MacMahon and Anor

[2010] NSWSC 943

Supreme Court of NSW|2010-08-09|Before: Schmidt J, Magistrate P

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Source facts

Court

Supreme Court of NSW

Decision date

2010-08-09

Before

Schmidt J, Magistrate P

Source

Original judgment source is linked above.

Judgment (62 paragraphs)

[1]

CITATION : Country Energy v Deputy State Coroner Paul MacMahon and Anor [2010] NSWSC 943 This decision has been amended. Please see the end of the judgment for a list of the amendments.

[2]

The inquest touching the death of Christopher Alan Howlett is quashed. DECISION : 2. The finding reached in the inquest in relation to the cause of Mr Howlett's death is quashed. 3. A fresh inquest into Mr Howlett's death be held. 4. Liberty to approach in relation to costs.

[3]

CATCHWORDS : MAGISTRATES - Coroners - inquests and inquiries generally - whether interests of justice require a new inquest - whether Coroner's finding rested on unreliable expert evidence - whether Coroner failed to consider competing expert evidence - whether Coroner failed to consider whether expert opinions were persuasive, in the light of other relevant evidence - no reliable basis for Coroner's finding - whether new evidence showed a real possibility that the original finding as to cause of death was erroneous - effect of Coroner's finding - Occupational Health and Safety Act 2000 - public interest in the cause of death outweighs the public interest in the finality of coronial proceedings - new inquest ordered - costs - STATUTES - acts of parliament - operation and effect of statutes - construction of section 85 of the Coroners Act 2009 - wide discretion - competing public interest considerations - section requires satisfaction that there is a real possibility that original finding as to cause and manner of death was erroneous - section 85(e) - meaning of discovery of new evidence - evidence which might have made a material difference to finding reached

[28]

The nature of the discretion 27 The construction of s 85 of the Coroners Act must be approached in light of s 3 Objects of Act, which provides: "The objects of this Act are as follows: (a) to provide for the appointment of coronial officers, (b) to provide that Magistrates are coroners by virtue of office, (c) to enable coroners to investigate certain kinds of deaths or suspected deaths in order to determine the identities of the deceased persons, the times and dates of their deaths and the manner and cause of their deaths, (d) to enable coroners to investigate fires and explosions that destroy or damage property within the State in order to determine the causes and origins of (and in some cases, the general circumstances concerning) such fires and explosions, (e) to enable coroners to make recommendations in relation to matters in connection with an inquest or inquiry (including recommendations concerning public health and safety and the investigation or review of matters by persons or bodies), (f) to provide for certain kinds of deaths or suspected deaths to be reported and to prevent death certificates being issued in relation to certain reportable deaths, (g) to prohibit the disposal of human remains without appropriate authority." 28 Section 85 provides: " 85 Orders for fresh inquests or inquiries (cf Coroners Act 1980, s 47 (2)) The Supreme Court may, on the application of the Minister or any other person, make an order that an inquest or inquiry that has been (or that has purportedly been) held be quashed and that a new inquest or inquiry be held if the Court is satisfied that it is necessary or desirable to do so in the interests of justice because of: (a) fraud, or (b) the rejection of evidence, or (c) an irregularity of proceedings, or (d) an insufficiency of inquiry, or (e) the discovery of new evidence or facts, or (f) any other reason." 29 The Attorney General's case was that the statutory scheme did not envisage that a person dissatisfied with a Coroner's findings would be entitled to seek a fresh inquest, merely in order to call further expert evidence on matters about which expert evidence had already been led at the first inquest. In order for a new inquest to be ordered, the Court would have to be satisfied that the interests of justice required that a new inquest be ordered. In coming to that view, competing public interest factors had to be resolved. 30 There was a strong public interest in ascertaining the truth about the manner and cause of a person's death. There was also a public interest in maintaining the finality of coronial findings, absent irregularities of a significant kind. Section 85 did not confer any right of appeal, or any right to a rehearing on the merits of matters determined by the Coroner. It followed that the Court's discretion to order a new inquest should be exercised sparingly, only where there was clear evidence of error, irregularity, or new evidence 'discovered' after an inquest. 31 Reliance was placed on the approach of Higgins CJ in Lucas-Smith v Coroner's Court of the Australian Capital Territory [2009] ACTSC 40; (2009) 166 ACTR 42 at [35]:

[37]

38 In this case, new reputable expert evidence had emerged, which confirmed that the Coroner's finding was wrong. That evidence showed that even the original photographs, on which Dr Cala's opinions had not rested, were not a forensically reliable basis upon which to form a view that the injury to Mr Howlett's forearm was an electrical burn. Additionally, Dr Cala had now examined the original photographs, with the result that while still adhering to his opinion, the basis upon which that opinion rested and the strength of his conviction, had altered in significant ways. Given the Coroner's approach to the resolution of the conflicting evidence before him, this new evidence was of such a kind that it was apparent that the Coroner's finding was erroneous and that the interests of justice required that a fresh inquest be ordered. 39 In my view, the construction of s 85 is relatively straightforward. It requires the Court to be satisfied that the interests of justice require that a fresh inquest be ordered. That satisfaction must be reached in the face of the evidence, as to the matters specified. The Court of Appeal's view in Herron, that the predecessor section contained a wide discretion, applies equally to s 85. 40 Of course such a wide discretion must be exercised on a principled basis, having in mind the competing public interest considerations which arise, whenever an application for a fresh inquest is made. Mere dissatisfaction with a conclusion reached at an inquest, or even that a different conclusion than the one reached, might have been available on the evidence, or even on new evidence subsequently discovered, which supports evidence already before the Coroner in the earlier inquest, may not provide a sufficient basis for the discretion to be exercised. As McHugh J discussed, what must be established is the real possibility that the original finding as to the manner and cause of death was erroneous, with the result that the inquest has failed to achieve what the Coroners Act envisages, namely that the manner and cause of death be determined. 41 For reasons which I will explain, the balance between the competing interests in the finality of coronial proceedings and the establishment of the cause of a person's death, in this situation requires that a fresh inquest be ordered.

[42]

48 I am satisfied that under s 85(e) there is no necessity that the new evidence discovered be something secret, or unknown at the time of the inquest, or that it deal only with matters or issues not dealt with at the inquest. While not every difference of opinion expressed by another expert after an inquest may lead to the conclusion that a fresh inquest is required, opinions later expressed by an expert about matters dealt with at the inquest, may amount to new evidence 'discovered', subsequently. 49 I accept that in a case where a finding as to the cause of death involves a consideration of conflicting experts' opinions, that a person dissatisfied with the findings made, who is later able to marshal opinions from other experts, which support the views of an expert whose opinion was not accepted by the Coroner, might, in a particular case, be able to establish the 'discovery of new evidence', within the meaning of s 85(e). Whether such new evidence provides a sufficient basis for the conclusion that it is necessary or desirable to order a fresh inquest, in the interests of justice, will require satisfaction that there is a real possibility that the original finding as to the manner and cause of death was erroneous. 50 It may be accepted, as was submitted for the Attorney General, that this involves a reasonably stringent test. 51 Fletcher is an example of a case where an expert's opinion obtained after inquest in relation to a matter about which expert evidence was received at the inquest, was accepted as new evidence which required that there be a fresh inquest, because the new evidence was accepted as being an opinion of a kind which might have made a material difference to the verdict reached. That difference was of such a kind, that the interests of justice required a new inquest. Section 85(e) also leaves open the possibility of a new inquest being ordered in the face of such new evidence. 52 In this case, I am satisfied that the evidence relied on by Country Energy, is new evidence discovered after the inquest, relevant to be considered in determining whether the interests of justice require that a new inquest be ordered.

[47]

The images on which the opinions rested 55 Dr Cala had been retained by the Crown Solicitor to provide an opinion about the conduct of the post mortem. He agreed with views expressed by Dr Raftos, as to tests which ought then to have been conducted, in order to determine the cause of death. In responding to the Crown Solicitors' question 'whether you consider there are any other relevant matters', in his report Dr Cala volunteered his opinion that images of the injury to the forearm showed that it was 'a typical electrocution "burn" mark.' This opinion rested on the three images with which he had been briefed. They were not original photographs. 56 In his report Dr Cala also expressed the view that a minimum standard for an autopsy involved pathologists themselves taking photographs, as well as those taken by police; that photos should have been taken at this autopsy; that it is very important that all suspected 'burns' or 'abrasions' are examined microscopically to prove or disprove that they are, in fact, due to electrocution; that electrocution 'burns have a very specific microscopic appearance that is usually diagnostic' and that given the deficiencies in the autopsy, a diagnosis of electrocution could now only be made by examination of the relevant photographs. 57 Despite these observations, Dr Cala did not himself examine the original photographs of the injury. He only had access to the copies with which he had been briefed and rested his opinions on them. The difficulty with placing any reliance on Dr Cala's opinions was thus apparent on the face of his report. Dr Cala was not physically present in Court when he gave his evidence and so was not able to be examined on what the original photographs showed. 58 Despite these problems, at one point in his evidence, Dr Cala said that: 'I would have frankly no hesitation in saying that this man in my opinion died as a result of electrocution'. 59 Dr Cala agreed in cross examination, however, that his view did not preclude the possibility that other evidence might discount electrocution as a cause of death, because 'you've got to look at the totality of the situation of the circumstances' and that the events leading to the death had to be considered. Thus the evidence of Mr Waldron that Mr Howlett had made no consideration with live conductors had to be considered, as did the evidence that Mr Howlett was wearing gloves which would have prevented electrocution, if his forearm had made contact with the conductors. 60 Dr Cala also said: "Q. So your conclusion in your report about the cause of death of Mr Howlett is not a conclusion that you put forward to the Coroner as being a conclusion that he can rely upon but rather a mere possibility and that his Honour would have to look at other evidence that is before his Honour, such as the circuitry for example that would need to be present in order for that electrocution to occur.

[49]

Failing to consider Dr Raftos' evidence as to the cause of the abrasion 65 The Coroner approached the question of the cause of the abrasion as requiring him to make a choice between Dr Cala's evidence and that of Dr Andrews. Of itself, this approach involved error. 66 Dr Raftos, an expert in emergency medicine, had been retained by the Crown Solicitor to provide an opinion as to the cause of death. His view was that the injury could have been an entry wound resulting from electrocution, or an abrasion caused by something else, but he was unable to come to any conclusion, on the information available. His opinion was that in the circumstances, it was not possible to differentiate conclusively between the two possible causes of death and that on the 'circumstantial evidence', 'acute coronary syndrome was a more likely cause than electrocution'. That was a view to which he adhered in cross examination, where he agreed that the mark on Mr Howlett's forearm could have been an abrasion which resulted from contact with timber, or a rope. 67 The acceptance of Dr Cala's evidence, in preference to that of Dr Andrews, was not explained, other than on the basis that Dr Cala's evidence was more 'credible', given his qualifications. Dr Raftos' opinions were not considered by the Coroner in resolving the difference of opinion between Dr Andrews and Dr Cala, even though Dr Raftos had also been called by the Crown Solicitor, as had Dr Cala. The conflict in their opinions was not considered. Nor did the Coroner consider Dr Raftos' evidence as to the cause of the abrasion, or the possibility that in the face of all of the evidence, its cause and the cause of death, could not be reliably established. 68 In adopting this approach, the Coroner fell into further error. 69 Even in an inquiry not bound by the rules of evidence, a determination of whether or not an expert's opinion is persuasive and should be accepted, depends on a consideration of the facts, assumed or otherwise, on which the opinion rests; whether or not such facts are established by some means at the inquiry; as well as the expert's reasoning process, in relation to the views which are reached. The expert's training, qualifications and experience will also be relevant to a consideration of what weight the opinions expressed should be given. Other facts or opinions which may cast doubt on the views reached by the expert, must also be considered and weighed in the balance, in reaching any conclusion about a matter in issue. An expert's opinion ought not to be accepted, without such consideration being given. 70 In a case such as this, where the cause of an injury is the subject of contested views by medical experts, an acceptance of one expert's opinion over that of another, based solely on that expert's qualifications, risks the result that there is no reliable foundation for the conclusion reached as to the cause of the injury. A failure to consider another medical expert's opinion, also touching on the cause of the injury, can only compound the resulting difficulty.

[50]

The approach adopted to the experts' opinions 71 It appears that it was not appreciated that Dr Cala's opinions did not rest on a consideration of the photographs taken at the scene, photographs on which Dr Cala himself had said that any view as to the cause of the injury had to rest, given the absence of photographs taken at the autopsy, or tests having been undertaken, which would have established the cause of the injury. That was a difficulty to which Dr Andrews drew attention in his report, but it was not addressed by the Coroner. 72 Dr Cala also accepted in his own evidence, that his opinions could not provide a reliable basis for the conclusions which the Coroner had to reach as to the cause of the injury to Mr Howlett's forearm, without a consideration of other, more direct evidence. This was also not considered by the Coroner. 73 There was a deal of such other evidence which it was necessary to consider, in determining whether Dr Cala's opinions could be accepted as providing a reliable foundation for the conclusions he had reached, both as to the cause of the abrasion and the cause of Mr Howlett's death. 74 Of themselves, Dr Cala's opinions could not provide a reliable foundation for the rejection of the evidence given by Mr Waldron, as to what he saw. Nor could they provide a reliable foundation for conclusions to be reached about Mr Howlett's forearm having made contact of a kind which permitted a circuit to be formed, with the result that he was electrocuted; or that the protection provided by the gloves Mr Howlett was wearing, when such contact was made, failed. 75 The Coroner expressly accepted that on the evidence, Mr Howlett was wearing safety equipment, insulating gloves, which would have kept him safe from injury, even if his forearm had made contact with a live conductor. His forearm was also covered by a long sleeved shirt. The Coroner noted Mr Waldron's evidence that he was watching Mr Howlett and did not see him come into any contact with any live conductors. While Mr Waldron was on the ground and Mr Howlett was working overhead, there was no suggestion that from his position, Mr Waldron could not have seen Mr Howlett's arm make contact with a conductor, if that had occurred. 76 Mr Waldron's evidence was that immediately before he collapsed and fell backwards in the bucket, Mr Howlett was moving forward in the bucket with his arms out, Mr Waldron thought to move a toolbox inside the bucket out of the way. That was Mr Howlett's practice. The tool box would have been in his way, for the work he had to do next. Mr Howlett would have been able to reach the live conductors from the bucket, but Mr Waldron did not see him working on them, or reaching towards them, before he collapsed. Mr Waldron could see Mr Howlett's arms. Mr Howlett's actions before he collapsed were moving his arms forward, with his hands held out horizontally in front of him, above his waist and below the shoulder, as he moved towards a toolbox in front of him, which was clipped to the side of the waist high bucket. Mr Waldron did not see Mr Howlett move towards the wires outside the bucket. His arms were not extended beyond the edge of the bucket. Mr Waldron did not see Mr Howlett move the toolbox before he collapsed backwards. 77 The evidence was that in order for electrocution to have occurred, it was necessary for Mr Howlett to have made contact with two live conductors, outside the bucket, in order for a circuit to be created. The Coroner accepted that if there were sufficient evidence to establish such contact having occurred, then the cause of death would be electrocution. He concluded that the evidence did not allow him to say that such contact had occurred. Despite this express conclusion, the Coroner implicitly later came to the view that such contact must have occurred, given his acceptance of Dr Cala's opinion that the injury to Mr Howlett's forearm was an electrical burn. Dr Cala's opinion was unquestionably not a reliable basis for such a conclusion to have been reached. 78 The Coroner was also unable to come to any conclusion as to how Mr Howlett could have made any contact with a live conductor, given the gloves which he was wearing. He expressly found that none of the evidence supported any of the theories advanced as to how such conduct could have occurred. Again, despite this finding, having accepted Dr Cala's opinion that the injury to Mr Howlett's forearm was an electrical burn and that the cause of death therefore was electrocution, the Coroner also plainly came to the view that the gloves had failed to protect Mr Howlett, in some unknown fashion. Dr Cala's opinion could not provide a reliable basis for such a conclusion. 79 The eye witness, Mr Waldron, saw Mr Howlett collapse, but did not see any prior contact with any conductor. Again, having accepted Dr Cala's opinion, the Coroner came to the view that Mr Waldron must have been wrong, when he said that Mr Howlett had made no contact with conductors. While Mr Waldron had been truthful in the evidence he gave, the Coroner concluded that it could not be correct 'in light of my finding that the injury was an electrical burn'. 80 As was submitted for Country Energy this was a patently illogical approach to a resolution of what the evidence established as to the cause of the abrasion on Mr Howlett's arm. Dr Cala's opinion could not be accepted as a reliable basis for the conclusion that Mr Waldron was mistaken in the evidence which he gave. 81 Having observed that while the evidence did not explain the injury to Mr Howlett's forearm, the Coroner observed that it was an 'objective reality'. Earlier he had accepted that the cause of the injury might have had no relevance to Mr Howlett's death. The Coroner had accepted Mrs Howlett's evidence, concluding that the injury must have been sustained at work. Mr Waldron's evidence was that he saw nothing that could have caused the injury and Mr Howlett did not mention it to him. Mr Howlett's forearm was covered by a long sleeved buttoned shirt, as well as by the gloves, when he collapsed. 82 The Coroner dealt with the 'objective reality' of the abrasion which he had identified, by accepting Dr Cala's opinions as to its cause, even though those opinions had no reliable basis; were inconsistent with other expert opinions; and also with the evidence of the eye witness Mr Waldron, as to Mr Howlett having been wearing protective gloves which would have protected him from sustaining a burn if he had made contact with a live conductor and there having been no such contact. 83 There can be no question that in so approaching his consideration of the expert evidence, the Coroner fell into further error, with the result that it must be accepted that the interests of justice require that a fresh inquest be ordered. The finding reached had no reliable basis. That conclusion is reinforced by a consideration of what the new evidence shows.

[51]

New evidence s 85(e) 84 The new experts' reports deal with matters not considered at the inquest, as well as some matters which were. At the inquest Dr Cala expressed opinions as to the cause of the injury, based on photocopies of the photographs taken by police at the scene, having expressed the view that any opinion could only rest on the photographs. While that was a difficulty to which Dr Andrews drew attention, it was not one dealt with by the Coroner. 85 New evidence as to the unreliability, for forensic purposes, of even the original photographs, is now available. That is clearly new evidence which would have been admissible, had it been available at the inquest. It is also clearly relevant to an issue of significance in the inquest. 86 Dr Ranson practices in forensic medicine. His evidence is that the photographs are substandard and given their deficiencies, he cannot conclude that the features of the injury to Mr Howlett's forearm are typical of an electrocution burn mark. In his view, the cause of death cannot be ascertained on the available medical evidence. 87 Dr Porter is a senior lecturer in forensic medicine, who teaches digital forensic photography, crime scene investigation and complex forensic case studies. He was asked to consider whether the photographs were of a sufficient quality and accuracy to permit reliable photo interpretation of the wound. His examination of the photographs led him to the view that the photographs lacked the critical attributes necessary for accurate forensic photography and posed significant accuracy problems, when used exclusively in an analytical or diagnostic examination. There were significant ambiguities present that could significantly affect the reliability of photo interpretation of the wound. 88 There is also other new evidence, based on the photographs themselves, both from Dr Odell and from Dr Cala, who were given access to the photographs in responding to Dr Odell's first report. This is also new evidence, admissible and relevant to an issue of significance at the inquest, namely what the photographs actually reveal. 89 Dr Odell is also a forensic physician. He concluded that the injury to Mr Howlett's forearm was unlikely to have been an electrical burn, commenting on the absence of features such as charring of the skin surface; thermal damage to surrounding hair; gradation of discolouration which results from the variable temperature distribution that occurs in electrical burns; redness around the central area; and evidence of thermal effects around fine striations crossing the main lesion, which suggested fine abrasions, or scratches, not burns. 90 Dr Cala responded to this report, maintaining his opinion that the injury was caused by electrocution. Having examined the photos, however, his view altered from one that the injury was 'a typical electrocution 'burn' mark', to one that it is not a 'textbook' injury, in which there is superheating of the skin, resulting in a depressed or crateriform central area with raised hardened edges and charring of the skin, although not universally. 91 In cross examination, it became apparent that while still of the view that the injury was caused by electrocution, the certainty which Dr Cala expressed at the inquest as to the cause of the injury and the death, was no longer present. He also agreed that the conclusion expressed in his new written report, might overstate the case. 92 It also became evident that the differences in opinion between Dr Cala and Dr Odell as to what the photographs showed, particularly whether or not striations or scratches across the wound could be seen in the photographs, which would suggest that the injury was caused by a graze, rather than a burn, was the result of the quality of the photographs, or their lack of quality. 93 Mr Blackburn is an Associate Professor from the School of Electrical Engineering & Telecommunications at the University of New South Wales. His report considers what evidence supported the conclusion that Mr Howlett had made any contact with a live wire. His conclusion is that the balance of the evidence for and against possible electrocution led to the conclusion that there was no possibility that Mr Howlett could have been electrocuted by contact with overhead lines. This required evidence that Mr Howlett had had direct contact with two separate electrical lines operating with a differential voltage, so as to cause an electric current to flow through his body. Such contact would have resulted in a severe muscular reaction, given the size of the current to which he would have been exposed, breaking the contact within a fraction of a second. The orientation of the mark on Mr Howlett's forearm, was not consistent with the orientation of any such contact. 94 This evidence is concerned with the possibility of Mr Howlett having made contact with a live wire, and the physical consequences of such contact, including the possibility of a mark on the forearm, of the orientation of the injury which Mr Howlett sustained. This is also new evidence, admissible and relevant, if it had been available at the inquest. 95 In this case, given the basis of the Coroner's findings, it has to be accepted that the use to which the Coroner put Dr Cala's evidence cannot have been anticipated, as Country Energy submitted. That the approach adopted has resulted in the pursuit of new evidence, including as to the reliability of the photographs taken at the scene and the possibility of any contact with a live wire having occurred in the circumstances of the work which Mr Howlett was undertaking, is not surprising, given the conclusions reached by the Coroner. 96 Dr Cala's evidence was used by the Coroner to reject Mr Waldron's direct evidence as to what he saw. Mr Waldron's evidence would be supported by Mr Blackburn's evidence. The other new evidence throws light on whether the Coroner's approach to the resolution of the question of the cause of Mr Howlett's death, could reliably rest on the opinion of Dr Cala. Like the circumstances considered in Fletcher, this case is one where it must be accepted that the new evidence would have made a material difference to the findings to which the Coroner came and that there is a real possibility that the original finding as to the manner and cause of death was erroneous. 97 In the circumstances, the new evidence discovered after the inquest reinforces the conclusion that the public interest in the cause of Mr Howlett's death being accurately established, must outweigh the public interest in the finality of coronial proceedings. While this a conclusion which will never be lightly reached, in this case it is apparent that the interests of justice require that there be a fresh inquest.