R v Doogan [2005] ACTSC 74

Supreme Court of the ACT|2005-08-08|Before: Coroner Maria, Commissioner Prince

THE QUEEN v CORONER MARIA DOOGAN & ORS; ex parte AUSTRALIAN CAPITAL TERRITORY [2005] ACTSC 74 (5 August 2005)

COURTS AND TRIBUNALS - Coronial inquiry - application for prohibition on ground of apprehended bias - relevant principles - significance of jurisdictional limits and hybrid nature of inquiry - ostensibly independent investigator not appointed by Coroner but engaged by department - danger of blurring boundaries between judicial and executive arms of government.

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Supreme Court Act 1933 (ACT), s 13, 37E(2)(a)(ii),

Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337

R v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248 (3 August 1976)

Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596

The Queen v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546

Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70

Harmsworth v The State Coroner [1989] VicRp 87; (1989) VR 989

March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506

Musumeci v Attorney-General of New South Wales [2003] NSWCA 77; (2003) 57 NSWLR 193

Maksimovich v Walsh (1985) 4 NSWLR 318

Mirror Newspapers Ltd v Waller (1985) 1 NSWLR 1

Barbosa v Di Meglio [1999] NSW CA 307

Scott v Numurkah Corporation [1954] HCA 14; (1954) 91 CLR 300

R v Doogan: Ex parte Lucas-Smith & Ors (No 1) [2004] ACTSC 91 (17 September 2004)

Fingleton v Christian Ivanoff Pty Ltd (1976) 14 SASR 530

Lyle v Christian Ivanoff Pty Ltd (1977) 16 SASR 476

R v Moss ex parte Mancini (1982) 29 SASR 385

Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342

Hardy v Your Tabs Pty Ltd (in liq) [2000] NSWCA 150

Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 7) [2003] FCA 893

Firman v Lasry [2000] VSC 240

Galea v Galea (1990) 19 NSWLR 263

Subramanian v The Queen [2004] HCA 51

R v Puddick [1865] 4 F 497

Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue of the State of Victoria [2001] HCA 49; (2001) 207 CLR 72

Johnson & Johnson [2000] HCA 48; (2000) 201 CLR 488

GIO v Glasscock (1991) 13 MVR 521

ASIC v Rich [2004] NSWSC 970

R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13

Fagan v Crimes Compensation Tribunal [1982] HCA 49; (1982) 150 CLR 666

Broken Hill Pty Ltd v National Companies and Securities Commission (1986) 61 ALJR 124

Commonwealth of Australia v Human Rights and Equal Opportunity Commission (1998) 76 FCR 513

Bienstein v Bienstein [2003] HCA 7; (2003) 195 ALR 225

EX PARTE: PETER LUCAS-SMITH, MICHAEL CASTLE, ANTHONY GRAHAM, IAN BENNETT, RICHARD McCRAE, ODILE ARMAN, PETER NEWHAM, RICHARD HAYES and VIVIEN RAFFAELE

1. In each of these matters, which were heard together, the prosecutors seek an order prohibiting the first respondent from further conducting a coronial inquiry into the fires that spread from bushland into areas of Canberra on 18 January 2003, causing widespread damage and the tragic deaths of four people.

2. Inquests were also conducted into the deaths of Douglas Fraser, Peter Brabason-Brooke, Allison Tenner and Dorothy (Dotty) McGrath, but interim findings made pursuant to s 53 of the Coroners Act 1997 (ACT) have not been challenged.

3. The inquiry was formally opened on 16 June 2003, and in the ensuing 16 months received numerous reports and other documents as well as hearing 94 witnesses and generating a transcript totalling 7,802 pages.

4. On 11 October 2004 the first respondent was asked to disqualify herself on the ground of apprehended bias. The application, which was supported by written submissions, was based upon allegations concerning certain acts and statements of the first respondent, but also raised issues as to the conduct of Mr Lex Lasry QC, who had been senior counsel assisting her at the inquiry. Mr Lasry asked for some time to consider those issues and the application was adjourned. On 19 October 2004, Mr Burnside QC appeared with Ms Neskovcin to make submissions as counsel assisting the first respondent and after some hours of legal argument the first respondent considered the applications but dismissed them.

5. On 20 October 2004, following ex parte applications to this court, Crispin J made orders nisi requiring the first respondent to show cause why she should not be prohibited from hearing or otherwise proceeding with the inquests or the inquiry, and an order that the inquiry be stayed until further order of the court.

6. Pursuant to s 13 of the Supreme Court Act 1933 (ACT), Crispin J ordered that the jurisdiction of the Court in the matter should be exercised by a Full Court. That order not only recognized the importance of the issues raised but also avoids the potential delay which could arise if a party, dissatisfied with a ruling at first instance, wished to appeal to the Court of Appeal (see s 37E(2)(a)(ii), Supreme Court Act).

7. The prosecutors in each case now seek to have those orders made absolute. It is important to put the applications into a temporal context; the hearing being conducted by the first respondent is still at the stage of the taking of evidence. No submissions have yet been made to the first respondent and no decisions taken as to the issues to be determined or relevant evidence going to those issues, let alone findings made by her.

The apprehended bias ground of disqualification

8. The ground for disqualification that is often referred to as one of "apprehended bias" is rooted in fundamental principles of natural justice. It was described by the High Court in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 per Gleeson CJ, McHugh, Gummow and Hayne JJ at [6] in the following terms:

Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror) . . . , the governing principle is that, subject to qualifications relating to waiver . . ., a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.

9. The Ebner test reflects the importance of maintaining public confidence in the administration of justice and its capacity to ensure that cases are decided impartially. As Barwick CJ, Gibbs, Stephen and Mason JJ explained in the earlier case of R v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248 (3 August 1976) at 263:

It is of fundamental importance that the public should have confidence in the administration of justice. If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision. To repeat the words of Lord Denning MR ... "Justice must be rooted in confidence: and confidence is destroyed when right-minded people go away thinking: 'The judge was biased.'" (citation omitted).

10. It cannot be doubted that the principles of natural justice apply to coronial proceedings and prohibition is available to prevent their breach: Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596. Nonetheless, in The Queen v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 the High Court, in a unanimous judgment, affirmed that the principle will be applicable only when it is "firmly established" that a suspicion may reasonably be engendered in the minds of those who come before the tribunal, or in the minds of the public that the tribunal or a member or members of it may not bring to the resolution of the questions arising before the tribunal fair and unprejudiced minds. See also Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70 per Gaudron and McHugh JJ at 100.

11. In Ebner v The Official Trustee in Bankruptcy, Gleeson CJ, McHugh, Gummow and Hayne JJ went on to explain at [8], that the application of the principle requires two steps; first, the identification of what it is said might lead a judge to decide a case other than on its legal and factual merits; and second, the articulation of a logical connection between that matter and the feared deviation from the course of deciding the case on its merits. Hence, the significance of the facts and circumstances from which it is suggested that an apprehension of bias might arise must be assessed by reference to the question or questions that the judicial officer is required to decide.

12. In litigation inter partes the nature of the questions that the judicial officer is required to determine can generally be found in the pleadings, but coronial inquiries have no pleadings and, strictly speaking, no parties. The task of a coroner is not to determine whether anyone is entitled to some legal remedy, is liable to another or is guilty of an offence. The Coroner's task is to inquire into the matters specified in the relevant section of the Coroners Act 1997 ("the Act") and make, if possible, the required findings and any comments that may be appropriate_._ Thus, if an application raising questions of apprehended bias is made before the coroner has handed down his or her report or at least foreshadowed specific findings, it may be more difficult to determine the potential relevance of particular rulings or comments made during the course of the proceedings.

13. In the present case, the evidence adduced at the inquiry included expert opinions relating to a wide range of issues, and at one point counsel assisting the coroner disseminated a memorandum annexing an "issues list" which, it was suggested, the first respondent would be invited to adopt "in effect, as terms of reference for the balance of the inquest". It is, of course, entirely appropriate for counsel assisting a coroner to advise parties who have been given leave to appear at the inquiry of issues which he or she has identified as potentially relevant to the questions which the inquiry is to address. The coroner may choose to accept or reject those issues as appropriate and to determine that other issues are relevant. It may become apparent for example, that an issue identified in the list early in the proceedings was no longer relevant at the conclusion of the evidence. However, a coroner is not free to enlarge his or her own jurisdiction by the adoption of terms of reference, and at least some of the issues so identified clearly fell outside the scope of the jurisdiction conferred by the Act. The list was apparently discussed during a directions hearing before the first respondent, but the evidence does not reveal that she agreed to determine all of the issues so identified. Mr Burnside, who again appeared with Ms Neskovcin to oppose both applications in this Court, submitted that an intention to do so could not be inferred.

14. Nonetheless, there seemed to have been at least some confusion as to the extent of jurisdiction conferred upon the first respondent. Both Mr Burnside and Mr Tracey QC, who appeared with Messrs Lakatos and McCarthy for the prosecutor ("the ACT"), in matter SC 698 of 2004, initially suggested that the Act conferred jurisdiction upon a coroner to inquire, not only into the cause and origin of the fire, but also into the circumstances in which it occurred. The ensuing argument also suggested some confusion as to the effect of certain provisions of the Act. Whilst all counsel ultimately accepted that the jurisdiction to conduct coronial inquiries is more limited than was initially suggested, it may be appropriate to begin by explaining the limited focus of the Act and the effect of the relevant provisions.

15. The Act is generally concerned with the resolution of relatively straightforward questions such as "what was the cause of this death?" or "what caused this fire?". It does not provide a general mechanism for an open ended inquiry into the merits of government policy, the performance of government agencies or private institutions, or the conduct of individuals, even if apparently related in some way to the circumstances in which the death or fire occurred. Specific provisions of the Act confer jurisdiction on coroners to enquire into stipulated questions, require them to make certain findings, and empower them to make comments. The nature and extent of the powers conferred by these provisions will be considered in turn.

16. The scope of any judicial inquiry must obviously be determined by the nature and extent of the jurisdiction being exercised. The jurisdiction to conduct inquiries in relation to fires is conferred by s 18(1) of the Act which is in the following terms:

A coroner shall hold an inquiry into the cause and origin of a fire that has destroyed or damaged property, if -

(a) requested to do so by the Attorney-General; or

(b) the coroner is of the opinion that an inquiry into the cause and origin of the fire should be held.

17. Section 12 also provides that:

(1) A coroner has the functions and jurisdiction given by this Act or any other Territory law.

(2) Except as otherwise provided by this Act, a coroner also has all the functions and jurisdiction that were vested in a coroner immediately before the commencement of the Coroners Act 1956.

18. For present purposes it is unnecessary to canvass the legislative history prior to the Coroners Act 1956 (ACT) - repealed, though it was ably expounded by Mr Glissan QC, who appeared with Messrs Walker, Whybrow, Craddock, Pike and Watts for the prosecutors in matter SC 697 of 2004. It is common ground that no different or expanded view of the jurisdiction relevant to the inquiry in question was derived from these provisions.

19. Hence, it is now accepted on all sides that the jurisdiction of the coroner is limited by the terms of s 18(1) of the Act to the conduct of an inquiry into the cause and origin of a fire that has destroyed or damaged property. Whilst this proposition may seem relatively clear, two questions arise: first, what is meant by "the fire"; and, second, what is meant by "the cause and origin" of such a fire?

20. If the concept of "the fire" were to be interpreted narrowly, the jurisdiction might be confined to determining whether the initial ignition was due to arson or was caused by some accident or natural phenomenon such as a lightning strike. The most obvious impediment to such a construction is that, unlike a death, a fire is not a one-off event but a process that develops over time. The process may have been initiated by a single event such as ignition due to a lightning strike or, as in the present case, by ignition due to lightning strikes at four separate places. However, when the concept of causation is applied to a process that has developed over a period of several days, it must extend beyond such origins to embrace those factors that had a causal effect on the development or continuance of the process. It would be quite unrealistic to regard a fire that had travelled long distances and/or burnt out vast areas of bushland as coextensive with a fire that had been smouldering on the end of a cigarette when negligently thrown from a car window and, then to dismiss from consideration any intervening or contributing events.

21. In any event, the meaning of a statutory provision of uncertain scope is not to be found by relentless adherence to semantic or philosophical argument, but by attempting to deduce the intention of the legislature. An inquiry into a fire may be sought by the owner or occupier of destroyed or damaged property and a coroner who is of the opinion that an inquiry should not be held is obliged to provide any such person with written notice of his or her opinion and the grounds upon which it is based. Furthermore, s 54(2) of the Act provides that when such an inquiry has been held, the coroner shall, on request of the owner of the property damaged or destroyed by the fire, make a copy of his or her findings available to the owner.

22. For these reasons, we are satisfied that the term, "the fire", in s 18 of the Act should be construed to mean the fire that caused the damage to property rather than merely the initial ignition from which that fire ultimately developed. In the present case, it was open to the coroner to inquire into "the cause and origin" of the fire that swept through parts of Canberra causing the deaths of four people and immense damage to property on 18 January 2003, and to consider all of the factors that might reasonably be regarded as having been causative of the entire process of that fire.

23. The phrase "cause and origin" is not a hendiadys. A coroner is required to inquire into two separate concepts. The word "origin" means, of course, the source or beginning, and in the context of a fire it clearly refers to the starting point. Hence, the origin or origins of the fire can usually be identified with some confidence. In the present case, the origins of the fire would have been the locations of the lightning strikes that ignited each of the four fires that later converged into the overall conflagration.

24. More difficult issues arise in relation to the concept of causation. Many different factors may have contributed to the development of a fire or fires over a period of some days, and a coroner may be required to inquire into a range of potentially causal facts and circumstances. Furthermore, each factor may in turn have been caused by a combination of other factors and there may be debate about the extent to which an apparent chain of causation may be traced. As Nathan J pointed out in Harmsworth v The State Coroner [1989] VicRp 87; (1989) VR 989 at 996, the issue of causation has vexed philosophers and judges since Socrates was obliged to drink hemlock and, even in relation to statutory provisions such as that contained in s 18(1), questions inevitably arise as to whether particular factors are too remote to be regarded as having been causative of the fire, as it developed, in any real sense.

25. To take but one example, it may be thought that the thickness of the vegetation at the site where the fire commenced had some causal relevance and, if the first respondent came to that view, then she would clearly be entitled to make a finding to that effect. However, that observation may evoke other questions. Why was the vegetation in that state? Was there some failure on the part of a government agency to detect its growth and embark upon fuel reduction measures? If so, was this attributable to lack of resources, public policy related to conservation of the natural environment and/or other considerations? The answers to those questions could, in turn, evoke yet others. How much does the ACT Government spend on the construction of fire breaks and other fuel reduction measures in and around Canberra? Is that amount of money appropriate having regard to the Government's competing responsibilities such as those relating to the provision of adequate funds for education, public health facilities and law and order? As a matter of public policy, has an appropriate balance been struck between the need to protect housing on the fringes of Canberra and the need to ensure that the surrounding bushland is maintained in its natural state? If not, is that because the legislature has been misled as to the relative importance of wilderness areas?

26. Even further questions could be asked. Should people have been permitted to build houses in the areas in question? Should the New South Wales Government have taken measures to prevent fires spreading from forest or bushland into the Territory? Should the ACT building code have required houses constructed in those areas to incorporate various features designed to ameliorate the danger posed by potential bushfires? Should fire crews have been deployed in one suburb in preference to another? Did some occupants contribute to the danger and/or the damage by failing to remove flammable materials from their yards?

27. Each of these questions could, of course, lead to yet others and, ultimately to a virtually infinite chain of causation. Yet the scope for judicial inquiry pursuant to s 18(1) must be limited. Whilst none of these suggested issues could be said to be irrelevant, they are somewhat remote from the concept of the cause and origin of the fire, and any adequate investigation of them would involve not only substantial time and expense, but also delving into areas of public policy that are properly the prerogative of an elected government rather than a coroner or, indeed, any other judicial officer.

28. Section 18(1) does not authorise the coroner to conduct a wide-ranging inquiry akin to that of a Royal Commission, with a view to exploring any suggestion of a causal link, however tenuous, between some act, omission or circumstance and the cause or non-mitigation of the fire. As Nathan J said in Harmsworth v The State Coroner, such discursive investigations might never end and hence never arrive at the findings actually required by the Act. It would also be difficult to contain such inquiries within reasonable bounds whilst at the same time ensuring due fairness. Once evidence of a particular issue were admitted, those who feared that such evidence might form the basis for adverse comments concerning their conduct would inevitably wish to challenge it and to call other evidence to rebut or qualify it. Yet the admission of further evidence might raise further issues and hence generate applications for still more evidence to be called. Thus, a coroner might be constantly torn between the need to contain the scope of the inquiry and the need to ensure that all interested parties were treated fairly. More fundamentally, the section does not confer jurisdiction to conduct inquiries of that scope.

29. A line must be drawn at some point beyond which, even if relevant, factors which come to light will be considered too remote from the event to be regarded as causative. The point where such a line is to be drawn must be determined not by the application of some concrete rule, but by what is described as the "common sense" test of causation affirmed by the High Court of Australia in March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506. The application of that test will obviously depend upon the circumstances of the case and, in the context of a coronial inquiry, it may be influenced by the limited scope of the inquiry which, as we have mentioned, does not extend to the resolution of collateral issues relating to compensation or the attribution of blame.

30. The case of Harmsworth v The State Coroner (supra) illustrates the point. The coroner was enquiring into the deaths of prisoners in a cell block fire. At 995, Nathan J observed:

The enquiry must be relevant, in the legal sense to the death or fire, this brings into focus the concept of "remoteness". Of course the prisoners would not have died, if they had not been in prison. The sociological factors which related to the causes of their imprisonment could not be remotely relevant.

Such discursive investigations are not envisaged nor empowered by the Act. They are not within jurisdictional power.

To investigate the management structure might have been relevant if confined to:

investigating why the management structure at Pentridge was incapable of responding to a request from the Reception Prison for fire equipment" (997).

31. There will, of course, be many cases in which the issue of causation will necessarily involve an examination of a person's conduct. A coroner conducting an inquest into the death of a person may be obliged to consider whether the death was attributable to accident or homicide. If reasonable grounds emerge for a belief that a person has committed murder, manslaughter or some other indictable offence the coroner will be required by s 58 of the Act to inform the Director of Public Prosecutions by written notice and the inquest will be adjourned. If that situation does not arise, the coroner will be obliged to make findings as to the nature of the acts and/or omissions that caused the death, even if they reflect adversely on the reputation of one or more people involved in the relevant incident. Hence, a coroner might well hear evidence suggesting that a cyclist's death had been caused not merely by a collision with a motor vehicle, but also by the antecedent conduct of the driver of that vehicle in failing to stop at a stop sign adjacent to an intersection. However, the limited jurisdiction conferred by s 18(1) would not authorise the coroner to inquire into any perceived failures in relation to general policy relating to the siting of stop signs or the enforcement of traffic regulations. The particular siting and design of the relevant intersection may be a different matter. The application of the common sense test of causation will normally exclude a quest to apportion blame or a wide-ranging investigation into antecedent policies and practices.

32. We should, perhaps, mention that it was suggested in argument that other coroners had, from time to time, conducted inquests or inquiries that ranged far beyond issues relating to the manner and cause of a death or the cause and origin of a fire. However, the present applications do not raise any issue as to the legality of the approach adopted in such proceedings and it would be inappropriate for us to make any comment about them other than to observe that, even if the relevant provisions of the Act have previously been overlooked, they nonetheless impose legal constraints on the jurisdiction that may be exercised by coroners in this Territory. The position may be different in other jurisdictions where the comparable provisions confer broader powers. For example, s 15 of the Coroners Act 1980 (NSW) formerly authorised coroners to enquire, not only into the cause and origin of fires, but also into the circumstances in which they occurred, though it was recently amended to bring it into line with s 18(1) of the Territory enactment. Whilst judicial decisions concerning the scope of coronial inquiries in such jurisdictions may nonetheless be of some value, their effect must obviously be considered in the context of the statutory provisions applicable to the inquiries in question.

33. We might also mention that s 19 of the Act provides that the Chief Coroner shall, if requested to do so by the Attorney-General, cause an inquiry to be held into the cause and origin of a "disaster". It was not contended that this section should be interpreted as precluding the exercise of jurisdiction under s 18 where the "fire" in question has given rise to a "disaster" and we accept that it was not intended to have such an effect. The sections simply have a different focus because the concept of a disaster is obviously wider than that of a fire.

34. For present purposes, it is neither necessary nor appropriate for us to go through either the so-called "issues list" or the evidence adduced before the first respondent with a view to making rulings as to the apparent relevance of each of the issues so identified. It is generally for the first respondent to determine whether any particular factor could be regarded as sufficiently proximate to fall within the concept of the "cause and origin" of the fires in question, so that she may enquire into it. Whilst it does appear that counsel assisting were intent on pursuing a range of issues extending well beyond even the most expansive conceptions of causation, no objection was taken and the first respondent's attention was apparently not drawn to the limited nature of the jurisdiction conferred by s 18(1). The issues list merely reflected the range of issues which counsel assisting intended to submit should be dealt with by the first respondent, and the mere admission of evidence that appears to canvass a range of issues extending beyond those specified in s 18(1) does not demonstrate any error of jurisdiction. Indeed, a liberal approach to the potential relevance of evidence may sometimes be appropriate, particularly in the early stages of an inquiry when the coroner is still seeking to identify what issues are likely to arise.

35. Accordingly, we will address the potential relevance of issues raised at the inquiry only to the extent necessary to deal with particular arguments that have been advanced in support of the contention that the first respondent should be prohibited from proceeding with the inquiry on the ground of apprehended bias.

36. Section 52(2) of the Act provides that "a coroner holding an inquiry shall find, if possible -

(a) the cause and origin of the fire or disaster; and

(b) the circumstances in which the fire or disaster occurred."

37. The requirement to find, if possible, not only the cause and origin of the fire but also the circumstances in which it occurred, is not augmented by any conferral of jurisdiction to inquire into such circumstances. The section only requires the coroner to make such findings to the extent permitted by the evidence adduced at the inquiry conducted under s 18(1), seen as relevant in the legal sense, to the "cause and origin of the fire".

38. It is clear, both from the language in which this provision is expressed and from the fact that the power must be exercised in relation to an inquiry under s 18(1), that the "circumstances" to which the provision is directed are circumstances that are related to the cause and origin of the fire.

39. Mr Burnside actually submitted that there was no real difference between the concepts of the "cause and origin" of a fire and the circumstances in which it occurred. We do not agree. The word "circumstances" has a wide meaning and the concept referred to in s 52(2)(b) of the Act is broader than that referred to in s 52(2)(a) of the Act. Nonetheless, the word must be construed by reference to the statutory context within which it appears. A coroner is not authorised to make findings in relation to any circumstances arising from the fire, but only in relation to the circumstances in which the fire occurred. The distinction between a cause and a circumstance may essentially be one of degree. For example, had the fires reached Canberra eight days later, the deployment of fire fighting units could conceivably have been hampered by additional traffic due to Australia Day celebrations. It would have been somewhat fanciful to regard the celebration of such an anniversary as a "cause" of the fire but it might well have been a circumstance that could have been alluded to in the findings.

40. In essence, it is for the first respondent to determine whether any particular factor should be regarded as a relevant circumstance and whether the evidence is sufficient to enable her to make any finding about it.

41. Subsection 52(4) also provides that a coroner "may comment on any matter connected with the death, fire or disaster including public health or safety or the administration of justice." Comments may obviously extend beyond the scope of "findings". The latter term refers to judicial satisfaction that facts have been proven to the requisite standard or that legal principles have been established. The former refers to observations about the relevant issues, and may extend to recommendations intended to reduce the risk of similar fires, deaths or disasters occurring in the future. However, conferral of the power to make comments does not enlarge the scope of the coroner's jurisdiction to conduct an inquiry. As Nathan J said, albeit in a somewhat different context, in Harmsworth v The State Coroner at 996:

The power to comment, arises as a consequence of the obligation to make findings. . . . It is not free-ranging. . . . The powers to comment ... are inextricably connected with, but not independent of the power to enquire into a death or fire for the purposes of making findings. They are not separate or distinct sources of power enabling a coroner to enquire for the sole or dominant reason of making comment or recommendation. It arises as a consequence of the exercise of a coroner's prime function, that is to make "findings". . . .

42. If a coroner decides to pursue this course, he or she is subject to the requirement in s 55 of the Act that any party who may be adversely affected by such a comment be given due warning that it may be made, as well as the opportunity to make a written statement in relation to the comment, or make a submission to the coroner in relation to the proposed comment.

43. Again, it is for the first respondent to determine whether any comments should be made in the light of the evidence adduced at the inquiry.

44. The submissions made in support of the present applications must also be considered by reference to the nature of the inquiry. In Musumeci v Attorney-General of New South Wales [2003] NSWCA 77; (2003) 57 NSWLR 193 at 199, Ipp JA said:

I think it sufficient to note, firstly, that it is a hybrid process containing both adversarial and inquisitorial elements. Secondly, coroners exercise judicial power, notwithstanding the executive nature of their functions. Thirdly, the proceedings in the Coroner's Court involve the administration of justice: see R v South London Coroner; ex parte Thompson (1982) 126 Sol J 625 (cited in Annetts v McCann (at 616) by Toohey J): Fairfax Publications Pty Ltd v Abernethy [1999] NSWSC 826, per Adams J: Maksimovich v Walsh (at 327-328 per Kirby P and at 337 per Samuels JA: Mirror Newspapers Ltd v Waller (1985) 1 NSWLR at 6: Herron v Attorney-General (NSW) (1987) 8 NSWLR 601, per Kirby P at 608).

The nature of an inquest differs from that of a fundamentally investigatory process such as a Royal Commission.

45. Whilst these observations are generally true, it is important to bear in mind that the coroner's duties will almost always involve some initial investigation and that, in the case of bushfires that have covered large areas and caused substantial damage, may involve a substantial investigatory phase in which little, if any, scope for the exercise of judicial power may arise. As Samuels JA said in Maksimovich v Walsh (1985) 4 NSWLR 318 at 342, a coroner does not commence an inquest or inquiry without any knowledge of the facts but must be aware of the nature of the material to be put before him or her and the inferences which he or she may be invited to draw from it. Hence, as his Honour added, the procedure is inquisitorial to a degree, but much inhibited by the overriding influence of the adversarial model.

46. It cannot be doubted that a coroner has a duty to act judicially in resolving the various issues that arise for determination: see, for example, Mirror Newspapers Ltd v Waller (1985) 1 NSWLR 1 at 6. However, his or her awareness of those issues may emerge only gradually as the investigatory stage of the inquiry unfolds. It may be some time before the coroner can make sensible judgments as to who should be granted leave to be represented at the subsequent inquiry. The hypothetical lay observer must be taken to be aware of this general process from an investigatory to a curial phase and to understand that a coroner may be obliged to undertake some investigations and duties at an earlier stage of the proceedings without consultation with parties who might conceivably be interested. It would be absurd to imagine that a coroner could not view the scene of a fatal accident and make decisions about the release of the body until all issues related to the death had been identified, an inquiry formally convened and parties who may be affected by those findings given the opportunity to make submissions. It is true, of course, that an apprehension of bias may arise even at the investigatory phase of an inquiry, whether due to some expression of prejudgment or otherwise, but many grounds of complaint commonly relied upon to support applications of this kind in relation to other proceedings will obviously be inapplicable.

47. It is also true that, as the predominantly investigative stage of the inquiry progresses and issues are identified, it may become apparent that some or all of the information that has been obtained during that investigative phase should be revealed to the parties. Whilst the Coroner may not be bound by the rules of evidence, the ensuing inquiry will have to be conducted in accordance with the principles of natural justice. Those principles require due disclosure of information that may be relevant to the resolution of issues of concern to the parties in question.

48. Even when the inquiry has been formally convened and evidence is being adduced, the coroner may still be engaged in an investigation of potential issues, the scope of which will not have been defined by pleadings. Issues may continue to arise and be progressively clarified and refined. Hence, any allegation that a remark or statement by the coroner may have given rise to an apprehension of bias must be considered, not only in the context of the relevant jurisdictional limits, but also by reference to the extent to which the relevant issue has been crystallised or remains inchoate.

49. It may also be necessary to take into account the stage at which the conduct said to have given rise to such an apprehension occurred. There are cases in which it may be clear that an apprehension of bias, once formed, could not be assuaged by the subsequent course of proceedings but much depends upon the circumstances. As Priestley JA said in Barbosa v Di Meglio [1999] NSW CA 307 at [78]:

Incidents may occur in the course of the proceedings which create such an apprehension of bias as will be incurable notwithstanding subsequent irreproachable behaviour on the part of the judge. Sometimes light will be cast on happenings in the course of proceedings, not of such a clear cut character, but causing the beginning of apprehension, by the opinions and findings stated in the judge's reasons for judgment. The light cast may lead to the extinction or confirmation of the earlier inchoate apprehension.

50. Furthermore, it will obviously be necessary for anyone raising an allegation of apprehended bias to show, whether by reference to notices under s 55 of the Act or otherwise, that there is at least a risk, which cannot be considered fanciful, that the Coroner may proceed so as to decide the issue to which the allegations relate: see Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596. In the present case the prosecutors have sought to overcome this problem by arguing that, as a matter of general principle, if grounds for an apprehension of bias have arisen, it does not matter whether the particular issues in relation to which the relevant conduct occurred are ultimately determined by the Coroner, because his or her approach to the entire proceedings will have been tainted. Whilst that is possible, much will depend upon the circumstances. In many cases, the very fact that the Coroner did not regard the issue as one that should be determined at the inquest or inquiry will be sufficient to dispel any adverse inference that might otherwise have arisen from the conduct alleged. To take an obvious example, no adverse inference could be drawn from a coroner's refusal to permit expert witnesses to be called in relation to an issue that he or she had concluded did not arise for determination in the proceedings.

The circumstances said to be suggestive of bias

51. In each case the prosecutors contend that an apprehension of bias arises from a series of acts and decisions which, as Mr Glissan put it, reveals that from the inception of the inquiry, the conduct of the first respondent and counsel assisting her was directed to finding people responsible for failing to extinguish the bushfires or warning the community of them, rather than determining their cause and origin. The factors relied upon by the prosecutors in the two cases are not entirely co-extensive but there is substantial concurrence and, in each case it is contended that, even if no one factor would itself provide a ground for such an apprehension, the cumulative effect is compelling.

52. On the other hand, each must be considered in the context of the matters to which we have already referred, and the cumulative effect weighed with due recognition of the length of the inquiry and volume of evidence adduced. Even a series of acts and decisions may seem less indicative of an underlying attitude if understood as consisting of comparatively isolated incidents in a hearing spanning 85 days and generating 7,802 pages of transcript. With this note of caution, we will deal with them sequentially.

53. The prosecutors contend that the first incident which might have contributed to such an apprehension was the first respondent's decision to view some of the affected areas with three members of the team assisting her, Mr Lasry, Ms Cronan, and Ms Drew, along with four potential expert witnesses, Mr Phillip Cheney, Mr Trevor Roche, Mr Sean Cheney and Mr Peter Hutchings. The view was conducted on 20 August 2003, obviously for the purpose of enabling the Coroner to gain an appreciation of the terrain, and hence better understand the evidence to be adduced at subsequent hearings. It was conceded that it was reasonable for her to have inspected the relevant areas, but objection was taken to the fact that she had done so came to light when counsel suggested that such a view should be undertaken. The gravamen of the complaint was that she was accompanied not only by members of the legal team assigned to assist her but also by potential expert witnesses, including Mr Cheney, and that she did not inform others who might be or become interested, that she intended to participate in a view of the affected areas.

54. These complaints may be readily dismissed. It was entirely appropriate for the first respondent to undertake a view as part of her initial investigation, and equally appropriate for her to take one or more experts with her so that the relevant areas could be identified and the significance of particular observations fully appreciated. It was unnecessary for her to inform any parties who had then been given leave to appear at the subsequent hearings. Such parties were free to inspect the relevant areas themselves and at least some counsel did so. They could also suggest that additional areas be visited by the coroner.

55. It is true that the prosecutors and other participants did not have the opportunity to make submissions about what areas should be visited, or to suggest that particular attention be paid to certain aspects of the terrain and vegetation, but since the first respondent had arranged for the attendance of experts, that may have been quite unnecessary. In any event, a failure to consult many people who may have been or may have become interested in the outcome of the inquiry about a view conducted at this early stage could not, in our view, provide any ground for an apprehension of bias.

56. It is also true, as Dixon CJ, Webb, Kitto and Taylor JJ stated in Scott v Numurkah Corporation [1954] HCA 14; (1954) 91 CLR 300 at 313, that it is not permissible for a judge to gather anything in the nature of extraneous evidence and apply it in the determination of the issues unless the facts are openly ventilated and exposed to the criticism of the parties. However, this principle does not prevent a coroner from conducting a view of the relevant scene at the investigative phase of his or her inquiry without first informing the parties, though it may well require subsequent disclosure of any information thereby obtained which might be relevant to the interests of parties given leave to appear.

57. The position may have been quite different had the first respondent been presiding over litigation inter partes or even, perhaps, if the view had been undertaken at a much later stage in the proceedings when the issues had been clarified, the evidence had commenced, the interested parties clearly identified and the investigatory phase had given way to the curial phase. In that event, the parties given leave to be represented at the inquiry may have had a reasonable expectation that they would at least be given notice of any fact finding expedition that might be undertaken, especially if expert witnesses likely to give contentious evidence were to be invited to accompany the first respondent. However, such considerations did not arise.

58. Mr Phillip Cheney took some notes during the course of the view and counsel assisting subsequently asked him to provide a typed copy. Mr Cheney duly produced a six-page document, referring to the various locations that had been visited and expressing various opinions relating to such issues as the difficulties that would have confronted firefighters in attempting to control the fire in the prevailing conditions.

59. That document contained notes of various things which Mr Cheney had apparently told the first respondent during the course of the view which, it is submitted, were of critical importance to the opinion the first respondent will be required to form of the conduct of the prosecutors and others who were not present at the view. At one point he mentioned the difficulty of fire suppression and the need for local knowledge. He later expressed the opinion at a second location that it would have been "impossible to hold the upslope spread" of the fire. At a third point he discussed the tactic apparently employed on 8 January 2003 of holding a small portion of the perimeter on the back of the fire. He later expressed the opinion to the first respondent that the mounds of rollover drains in the vicinity of the Webbs Ridge trail were too high and likely to damage fire-fighting tankers. There was apparently a subsequent discussion in an area on Wombat Road concerning the difficulty of fire suppression during the course of which Mr Cheney apparently expressed the view that the use of chainsaws and other measures for safely fighting the fire in that area may have been beyond the skills possessed by volunteer firefighters.

60. The potential significance of these opinions was quickly appreciated by senior counsel assisting the Coroner who, in a memorandum dated 22 August 2003, said that the views of Mr Cheney, whom he described as "the Coroner's witness", would be "at odds with the views of ESB". (The latter initials apparently referred to the Emergency Services Bureau.) He subsequently added that " . . . there may be more contention about Dr [sic] Cheney's evidence than was first thought . . .".

61. The existence of this document was not initially disclosed to counsel for the parties who had been granted leave to appear at the inquiry and the prosecutors contended that Mr Cheney subsequently gave evidence that was in some respects inconsistent with what he had apparently told the first respondent during the course of the view. Furthermore, propositions were put to several witnesses that were also inconsistent with opinions recorded in the document. The respondents complained that the failure to disclose the notes or reveal that the first respondent had viewed the relevant areas meant that their counsel remained unaware of the inconsistencies and were unable to make objections or otherwise make forensic use of the assertions in the notes. It is submitted that this amounted to a denial of procedural fairness, made all the more significant by a ruling by the first respondent that the rule in Browne v Dunn (1893) 6 R 67 would be applied.

62. In answer to these contentions, Mr Burnside submitted that the opinions expressed to the first respondent during the course of the view had been generally reflected in Mr Cheney's subsequent reports, copies of which had been duly provided to the interested parties.

63. This contention was challenged by counsel for the prosecutors who maintained that at least some important aspects had been omitted. Mr Glissan cited the example of a passage in Mr Cheney's report entitled "Origin and Development of the Bushfires that spread into the ACT" in which Mr Cheney referred to the rate at which a "mineral earth line" could be constructed by a six-person team, but did not include the words of caution expressed in his notes. He also referred to comments qualifying the general proposition, repeatedly raised by counsel assisting, that fire usually behaves in the most benign manner on the first night and that there is usually a good opportunity to attack it directly over the course of that night. He pointed out that, in examining Mr Graham who had been the operations manager of the Emergency Services Bureau, counsel assisting had suggested that the decision making process on the night of 8 January 2003 had been negligent. Ms Arman, who had been the incident controller at the relevant area on that night, had been the subject of some implied criticism for having decided to withdraw the team of firefighters because of the escalating danger to their lives. She had also been asked whether with the benefit of hindsight she should have kept her team in the area to fight the fire overnight. Mr Glissan submitted that the "hindsight" which Ms Arman had been invited to apply in addressing this question should have included knowledge of those observations made by Mr Cheney during the course of the view, and that both she and Mr Graham had been treated unfairly by having the observations withheld from them. Somewhat similar criticisms were made of the manner in which another officer, Mr McCrae, had also been cross-examined.

64. It does appear that at least some comments made by Mr Cheney during the course of the view were not reproduced in his subsequent reports and it is unfortunate that the witnesses to whom Mr Glissan referred were not aware of all of the opinions that had been expressed during the course of the view. However, the sequence of events propounded by Mr Glissan provide little support for his contention that a lay observer could have formed an apprehension of bias. The contention seems to have been predicated upon a number of unstated assumptions, namely that the first respondent had recalled the particular observations in the document said to be inconsistent with particular questions put to witnesses, that she had compared the notes written on 22 August 2003 with the subsequent reports and transcripts of the oral evidence to ascertain whether there were any discrepancies, that she had concluded that they were relevant to issues she was required to determine and of some real significance, and that she must have realised that it would not be fair to such witnesses if she did not intervene by mentioning those observations during the course of their evidence. There is no obvious reason to make any of these assumptions. Further, the first respondent stated during the course of the inquiry that she would only take into consideration evidence at the hearing. Mr Cheney was an apparently reputable expert engaged by the Australian Capital Territory to advise the first respondent. There is no reason to suppose that she regarded the comments made during the course of the field trip as reflecting anything more than his first impressions upon viewing the relevant areas, or that she doubted that his reports accurately reflected the opinions he had formed after having had the opportunity for more mature consideration.

65. Counsel for the prosecutors also submitted that the first respondent had displayed an apparent reluctance to produce these notes and records of earlier meetings which will be referred to later in this judgment. In fact, Mr Glissan suggested that obtaining copies of the notes had been like "pulling teeth".

66. On 27 April 2004 counsel for Mr Lucas-Smith, Mr Walker, suggested that the first respondent view the scene of the fires. She responded by saying that she had already seen much of the relevant areas. Mr Walker then asked her if she would be willing to provide some indication of the particular areas that she had seen. She told him that she would have that information provided to him.

67. The first respondent subsequently produced a two-page document identifying the areas inspected on the view. The document appears to consist substantially of extracts from the notes prepared by Mr Cheney.

68. On the 24 May 2004, the following exchange ensued:

MR WALKER: Your Worship has indicated that you have already undertaken a view. You have kindly indicated to me where you went. But apparently, your Worship, there was some notes of what you were told about various things at various places. Your Worship, in my submission insofar as that conversation related to matters directly relevant- I assume you only took notes of things relevant -

THE CORONER: I didn't take any notes at all, Mr Walker. They weren't my notes.

MR WALKER: I see. Your Worship, if that be the case, the application still lies that if your Worship is able to indicate in broad summary terms what you were told in the course of that view, I would respectfully request that your Worship make that known because it may be - I note Mr Cheney was on the view - that he says something about a particular area which might be disputed. I am not trying to pry or be unduly personal, but it is possible that a man such as Mr Cheney who has been called to give evidence may well have made statements to your Worship which are in fact material to the matters which are before you. In my submission, insofar as your Worship is able, it would be appropriate, with respect, that that information be made available.

69. The first respondent deferred ruling on this application to permit Mr Lasry to be heard on the issue and on the following day he made oral submissions which included the statement that:

. . . insofar as there was conversation of a more formal nature . . . it was primarily about where we were and being pointed out to us where the fire was in particular places and so on.

70. Mr Glissan submitted that these comments were either attributable to a lapse in memory or a deliberate attempt to mislead other counsel as to what had actually taken place during the course of the field trip. The remarks were certainly inaccurate but we see no reason to suppose that they were deliberately misleading. In any event, the real point that counsel for the prosecutors sought to make was that the first respondent had permitted the comments to remain uncorrected when, it was submitted, she must have known that they were incorrect.

71. Arguments of this kind are usually worthy of little, if any weight, though much obviously depends upon the importance of the error. Judges and magistrates cannot be expected to intervene immediately in order to correct every misstatement made by counsel. They may be preoccupied with the essential issues and simply overlook the inaccuracy of the remark. Even if they appreciate that a misstatement has occurred, they may regard it as relatively unimportant or they may simply let it pass, perhaps with the intention of correcting any misapprehension in the subsequent reasons for judgment. In some cases an insistence on immediately correcting every minor error would require such constant intervention that there might be a risk of distracting counsel from the real thrust of their submissions.

72. Counsel for the prosecutors sought to gain some support for their contentions of bias by pointing out that the first respondent had later made the following remarks to counsel seeking access to any notes of conversations:

. . . you seem to think that there were other notes provided. I am not obliged to provide any information such as that, if it did exist.

73. These comments were made less than four weeks after her Worship (to use the form of address then applicable to coroners) had apparently gone through the notes to extract information concerning the areas that had been visited. Counsel for the prosecutors pointed out that in agreeing to produce a record of those places, the first respondent had said that she did not think that counsel really needed the "dialogue". They submitted that the contents of the document had clearly been "cut and pasted" from the document containing the notes, subject only to the substitution therein of the word "viewed" for the word "indicated". It was argued that in these circumstances she must have known that the document contained other notes, and the implicit suggestion that there was some doubt about their existence was potentially misleading. Furthermore, it was suggested that a lay observer might have been left with a suspicion that the change of wording had been intended to conceal the fact that witnesses had "indicated" specific matters to the first respondent during the course of the field trip.

74. We accept that the first respondent's remarks might have justified some concern if the phrase "other notes" had alluded to notes "other than those relating to specific locations" contained in the six page document produced by Mr Cheney. However, there is no obvious reason to construe her Worship's remarks in that manner. The words "other notes" are followed by the word "provided", and that suggests that her Worship may have thought that counsel had in mind the existence of another set of notes that had been separately provided on another occasion. In an inquiry of this complexity it was, of course, entirely possible that Mr Cheney and/or other experts had provided further notes to those assisting the Coroner and that they had not come to her attention. We are not satisfied that the remark offered any reasonable ground for suspicion that the first respondent intended to mislead counsel, rather than merely indicating that, even if any further notes had been provided to those assisting her, she was not under any obligation to produce them.

75. The full six-page document referring to the view was finally produced on 9 September 2004 after proceedings in this court. Counsel for the respondents submitted that it was only then that statements of opinion apparently capable of providing some answer to criticisms made of the prosecutors were revealed.

76. Whilst acknowledging that the evidence to be adduced at the inquiry has not yet been completed, and that the proceedings have not reached a stage at which notices may have been sent out warning of possible adverse findings, it was submitted that the overall sequence of events had been disturbing. The prosecutors suggested that a lay observer would have been concerned to find that a judicial officer had, in effect, personally edited a statement prepared by an important witness in the case, and even more concerned to find that potentially exculpatory evidence had been withheld until it had become clear that production would be compelled by order of a superior court. Furthermore, the apprehension excited by these events would have been exacerbated by statements suggesting that all that had been omitted were matters of general conversation relating to the location of the areas visited when in fact, those statements had been quite incorrect.

77. However, these contentions must be considered in context. More than eight months had elapsed between the view of the affected areas and Mr Walker's request for an indication of the particular areas inspected, and it was entirely understandable that the first respondent resorted to the only notes apparently taken of the view. It is difficult to see how the document she produced could be seen as anything but a reasonable response to the request that had been made. The notes from which the material was extracted had not constituted a comprehensive account of Mr Cheney's expert opinions, but merely recorded places visited and things said and done during the course of the view. It is true that, in referring to the notes for the purpose of producing a record of the areas visited, the first respondent may have been reminded of things that Mr Cheney said during the course of the view, but she would have known that Mr Cheney had already given some evidence and was likely to produce further reports and/or give additional evidence in the future and she had stated that she would not consider material that was not in evidence. There is no reason to suspect that the first respondent had recognised that the document contained some crucial fact or opinion that would not be revealed by Mr Cheney's evidence. Furthermore, given the nature of the proceedings, the first respondent would obviously have depended upon those assisting her to disseminate copies of relevant documents and she had been repeatedly assured that this duty had been responsibly discharged. For example, on 28 April 2004 she had heard Mr Lasry respond to a request for copies of any notes made by another witness by stating that he and his colleagues had been "punctilious" in ensuring that copies of any relevant contemporaneous notes were duly provided.

78. The apprehended bias test does not involve imputing to the hypothetical lay observer a propensity to draw the most sinister implications from every ruling or adopt the least favourable interpretation of every judicial comment. It is more likely that a benign implication or interpretation would be adopted. As we have already mentioned, grounds for such a reasonable apprehension must be "firmly established". In the present case, even if the first respondent's statements had been sufficient to cause what Priestley J described in Barbosa v DiMeglio as "the beginning of apprehension", there is no reason to suppose that the future conduct of proceedings would not have assuaged any such apprehension. Many of the submissions made on behalf of the prosecutors clearly reflect their concern that they may be at risk of adverse findings in relation to certain issues. However, no notices have been issued warning them that such findings are contemplated and, having regard to the jurisdictional limits imposed by the Coroners Act, it is by no means certain that all or any of those issues would be open to determination, let alone in a manner that would reflect adversely upon their reputations. There is also no reason to suppose that potentially relevant information would by then have been withheld from persons to whom notices warning that an adverse finding was contemplated.

79. Furthermore, the complete document has since been disclosed and if, contrary to our impression, it does provide some important evidence that had not previously been revealed, then that can be drawn to the first respondent's attention before the inquiry is closed.

The suggestion that Mr Cheney and Mr Roche were independent investigators

80. On 26 August 2004 the first respondent refused an application for the production of certain documents, stating that the nature of the request suggested that counsel were seeking something upon which to base an attack on the credit of Mr Cheney and Mr Roche. She added, " . . . both of these persons have been appointed by me in accordance with the provisions of s 59 of the Coroners Act to assist with the investigation and were appointed as independent and impartial experts".

(1) A coroner may, by instrument, appoint a person to assist him or her in the investigation of any matter relating to an inquest or inquiry.

(2) An investigator appointed under subsection (1) shall--

(a) inquire into; and

(b) report in writing to the coroner on;

any matter referred to the investigator by the coroner by his or her instrument of appointment.

(3) The instrument of appointment of an investigator shall specify--

(a) particulars of the subject matter into which the investigator is to inquire and report; and

(b) the conditions (if any) to which his or her appointment is subject; and

(c) the remuneration (if any) to which he or she is entitled to receive.

(4) An investigator who is a public servant is not entitled to be paid remuneration under subsection (3).

(5) The coroner holding the inquest or inquiry in relation to which the investigations are made shall have regard to the report of the investigator and shall give it such weight as the coroner thinks fit.

82. As Whitlam J found in R v Doogan: Ex parte Lucas-Smith & Ors (No 1) [2004] ACTSC 91 (17 September 2004) at [16], neither Mr Cheney nor Mr Roche had been appointed as an investigator under s 59 of the Act. On the contrary, each had been engaged by the ACT Government pursuant to a contract and, in Mr Cheney's case, the other party to the contract had been his employer, the CSIRO, rather than him personally. The contract required the provision of an "independent expert witness" to the inquest.

83. Mr Burnside submitted that, despite the contrary finding by Whitlam J, we should accept that Mr Cheney and Mr Roche had been validly appointed under s 59. Mr Burnside maintained that the finding made by Whitlam J had been substantially attributable to the Director of Public Prosecution's failure to contest the issue and that it should not preclude a further consideration of the relevant legal issues. Whilst, as his Honour had pointed out, Mr Roche and Mr Cheney had not been appointed directly by the Coroner, they had been appointed by an instrument and there was nothing in the section to prevent their appointment by the ACT Government acting for this purpose as the Coroner's agent.

84. We are unable to accept these submissions. The issue had been fairly raised in the proceedings before Whitlam J and the Director, apparently with full knowledge of the facts, had not opposed the making of the relevant finding and had not subsequently appealed against it. Even if no estoppel strictly arises, we can see no reason to permit the Director to reopen this issue now.

85. In any event, we are unable to see any reason to doubt the correctness of his Honour's decision. We accept that there is nothing in the section to prevent funding being made available by means of collateral contracts between experts appointed under s 59 and/or their employers and the ACT Government, but the section does seem to require that the appointment be made by the Coroner personally. It is, in our view, highly unlikely that the legislature intended to permit coroners to delegate the appointment of "independent" experts to the ACT Government when the latter is frequently represented as a party in such proceedings and often has an interest in outcomes that may be influenced by the evidence that such witnesses may give.

86. However, the mere fact that the first respondent was mistaken about the nature of their appointment does not justify a finding of apprehended bias.

87. Mr Tracey's primary submissions appeared to involve an explicit allegation that the first respondent's statement had been intentionally misleading, though in his address in reply he disavowed any such contention. He indicated that the real point upon which his client relied was that the statement may have created a suspicion of such an intention in the mind of the reasonable lay observer. We do not accept either proposition.

88. The proceedings before the first respondent were complex and protracted, and she had the assistance of a legal team including junior and senior counsel. There is no reason to suppose that she would have personally drafted or inspected the documents under which Mr Cheney or Mr Roche were engaged or had any clear recollection of whether she had actually signed any instruments of appointment some twelve months or more earlier, even if she had turned her mind to the procedural requirements of the section. Furthermore, the evidence suggests that Mr Cheney and Mr Roche had acted as if they were investigators acting on instructions from counsel assisting the first respondent. Indeed, that is the subject of complaint from the prosecutors in both cases. We see no reason to doubt that the first respondent had assumed that they had been validly appointed to perform the role they had apparently adopted and, since it is s 59 that authorises such appointments, that they had been appointed under that section. The hypothetical lay observer, aware of the relevant facts, would have had no reason to suspect that the statement had not been made honestly or to otherwise entertain any doubt as to the first respondent's integrity.

89. Nonetheless, the confusion that arose in this manner is disturbing. The first respondent was clearly misled as to the engagement of expert witnesses called to give potentially crucial evidence, and had the error not been discovered she might have acceded to the oft-repeated suggestions of counsel assisting that she accept the reliability of their evidence was enhanced by their perceived independence. In that event a subsequent challenge to any conclusions based on that evidence may have succeeded in circumstances that could have been avoided.

90. This confusion clearly reflects what appears to be an increasing tendency for the boundaries between the courts and the executive to become blurred. Courts are not, of course, part of the public service. The courts as a group constitute one of the three arms of government, the others being the legislature and the executive. The role of the courts is to see that justice is done according to law, and that frequently requires them to stand between the citizen and the other arms of government. Public confidence in the ability of courts to dispense justice in a fair and impartial manner is largely dependent upon continuing recognition of their independence. There are obvious indications of such independence, including the fact that jurisdiction must be exercised according to law rather than government policy, and that judges and magistrates generally enjoy guaranteed tenure of office. On the other hand, there are some grounds for concern that, at least at an administrative level, courts in some jurisdictions may be seen as mere sub-branches of a public service department. The treatment of courts in that manner may be administratively convenient but, as the former Chief Justice of Victoria has recently warned, any perception that courts are part of the executive would be inconsistent with due recognition of their fundamental role and underlying independence. Indeed, due recognition of that principle has led to magistrates who were also officers of the Executive being regarded as disqualified from hearing any matter concerning the Executive. See Fingleton v Christian Ivanoff Pty Ltd (1976) 14 SASR 530, Lyle v Christian Ivanoff Pty Ltd (1977) 16 SASR 476, R v Moss ex parte Mancini (1982) 29 SASR 385.

91. We recognise that some who are more familiar with the culture and ethos of the public service rather than the social policy considerations relating to the essential requirement for the perceived independence of the courts may think that, so long as their essential independence is in fact maintained, some risk of confusion is a small price to pay for assumed gains in administrative efficiency. However, such views reflect a failure to understand the fundamental importance of maintaining public confidence in the independence of the judiciary, and hence in their capacity to decide any dispute fairly and impartially, even if that means standing between the individual and the state. The oft-repeated aphorism that justice must not only be done but must manifestly be seen to be done is particularly apposite in such cases. Furthermore, applications of this kind actually turn on issues of perception and, as we have mentioned, the test is a relatively undemanding one. It is for this reason that the administration of courts is in many instances now independent of the executive government (see eg Courts Administration Act 1993 (SA)).

92. An apprehension of bias may easily arise when, as appears to have occurred in this case, a judicial officer has been led to believe that an expert witness has been independently appointed to assist the court when, in fact, he or she has been engaged by the ACT Government and that entity has also been granted leave to be represented as an interested party to the proceedings. It may be understandable that departmental officers accustomed to treating courts as a sub-branch of their department may have failed to appreciate the impression that could be created in this manner. However, s 59 of the Act was clearly intended to permit coroners to engage investigators who would be independent of any of the interested parties, and whose opinions could not therefore be called into question on the grounds that they may have been influenced by competing loyalties. A lay observer could well become apprehensive on learning that a coroner had treated a person as an independent investigator when, in fact, he or she had been engaged by one of the interested parties.

93. Despite Mr Burnside's able submissions to the contrary, this was clearly a matter of potential concern in the present case and, if the evidence given by Mr Cheney and Mr Roche had generally favoured the ACT Government, a finding of apprehended bias may well have been inescapable. However, that was not the case. On the contrary, Mr Tracey's submissions clearly reflected concern that aspects of their evidence was critical of Government employees and/or agencies. It is true, of course, that a party who has engaged experts may itself come to feel that it has suffered from subconscious bias due to them "bending over backwards" to be fair, but it will, of course, have been largely responsible for the situation that has led to any such psychological inclination. In any event, Mr Tracey did not raise any such contention. Nor did it lie comfortably with the ACT Government that, having created a situation of potential conflict, it then sought to complain of it.

94. It was unfortunate that those assisting the first respondent had not accurately informed her of the manner in which Mr Cheney and Mr Roche had been engaged, and that even counsel for the ACT Government had felt obliged to express concern that confusion about the nature of their appointments may have undermined public confidence in the impartiality of the first respondent. Nonetheless, whilst we have carefully weighed the competing arguments, we have ultimately been unable to accept that the statement reflecting her apparent belief that they had been appointed under s 59 of the Act provides an adequate ground for an apprehension of bias.

The inclusion of Mr Cheney and Mr Roche in "the team"

95. Further issues arose from the perceived incorporation of Mr Cheney and Mr Roche into the team assisting the first respondent and their participation in subsequent meetings that she attended. Whilst, as mentioned earlier, we see no reason to suppose that a lay observer would have doubted that the first respondent had been genuinely mistaken about the nature of their appointments and met with them in good faith, an apprehension of bias does not arise only when an absence of good faith can be demonstrated. It may arise due to facts and circumstances that could not justify any criticism of the judicial officer in question, such as when a party to the proceedings unexpectedly calls a potentially crucial witness who proves to be a relative or friend of the judge or magistrate. In the present case, it was submitted that, even if unconcerned about any misunderstanding as the nature of their appointment, a lay observer might have seen their apparent incorporation into the team of people assisting the first respondent, as well as private meetings with them and counsel, as creating a situation in which she might be predisposed to rely unduly upon their opinions. That risk could be seen as having been exacerbated by the fact that issues likely to arise at the inquiry and even matters of tactics had been discussed at those meetings. It was contended that a lay observer could reasonably think that these circumstances may have unduly enhanced their credibility in the eyes of the first respondent, and hence apprehend that relevant issues might not be resolved impartially because, as Brennan J said in Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 370, "the judge will not be able, however conscientiously she tries, to remove from her mind the impermissible effect of the discussions she had in chambers . . . ".

96. Mr Burnside made a number of submissions in answer to these contentions. He argued that since the first respondent had been engaged in an investigation, it had been entirely appropriate for her to attend meetings with people whom she regarded as members of the investigative "team". Whilst Mr Cheney and Mr Roche had been called to give expert evidence at the inquiry, they had been appointed as investigators under s 59 of the Act and, even if there had been some defect in their appointment, the first respondent clearly believed that they had been so appointed. The meetings did not have a tactical focus but related to matters that required investigation and possible avenues of investigation. Furthermore, it was submitted, even if the conversations could be said to have strayed into the area of tactics, that part of the conversation reflected nothing more than a concern to ensure that the evidence was adduced in a logical sequence, and that the inquiry was generally conducted in an efficient manner designed to elicit the truth, not to build a case against any individuals.

97. These arguments were not wholly convincing. Whilst the first respondent had obviously been engaged in an investigation, the lay observer must be taken to recognise that an investigation is only one part of the hybrid process involved in a coronial inquiry of this nature. A coroner must take care to ensure that the nature of his or her participation in the investigation does not provide grounds for an apprehension of bias in the curial phrase. Some comments, such as those made by Mr Lasry on 28 July 2003 proposing that the "top people" be interviewed last when "locked in", clearly suggested a tactical approach. Despite Mr Burnside's submissions to the contrary, we think that a lay observer could well form an apprehension of bias upon learning that a coroner had participated in meetings of a tactical nature. Whilst the investigative aspect of a coronial inquiry may require a coroner to undertake responsibilities extending beyond the normal judicial role, he or she is nonetheless a judicial officer and an apparent endorsement of a tactical approach to the evidence could cause considerable apprehension.

98. We accept that, as matter of general principle, an apprehension of bias could not arise merely by reason of a coroner pursuing a course authorised by statute or which she apparently believed had been so authorised. However, s 59 of the Act provides for the appointment of independent investigators, as opposed to expert witnesses. Whilst the section does not preclude the appointment of experts as investigators, it is by no means clear that it was intended to sanction private consultations with people whom the coroner anticipates being called to give expert evidence. An investigator is required by s 59(2) of the Act to inquire into and report in writing on relevant matters before the inquiry, and the coroner is required by s 59(5) to have regard to the report, and to give it such weight as he or she thinks fit. Some discussion about the matters to be investigated may obviously be required, but it is generally undesirable that the coroner participate personally in those discussions, especially when the investigator is a potential expert witness and, if the coroner is assisted by counsel, it should usually be unnecessary. Even if the section were to be construed as authorising some personal consultation with the coroner, it could not be taken to dispel any possibility of an apprehension of bias arising from private discussions in which the investigator communicated expert opinions relevant to matters that the coroner was required to determine.

99. There are sound reasons for coroners to avoid having private meetings with people who are to give expert evidence in inquests or inquiries, even if those people have been appointed as investigators under s 59 of the Act. As scientists of various disciplines have observed, when even the most eminent experts attempt to provide proof for preconceived views rather than merely attempting to see what conclusions can be drawn from the available data, there will be at least some risk that they will be subconsciously misled. The incorporation of experts into a "team" apparently led by counsel seeking to achieve a particular result may tend to create such a risk. If, in addition, the coroner is present at meetings when things are said that are suggestive of a shared aim to achieve such a result, then the risk may be heightened by the expert's perception that the coroner has lent his or her imprimatur to the approach. Conversely, incorporation of the expert into the team and his or her participation in meetings with the coroner may create a degree of familiarity that may subtly influence the coroner's appraisal of the evidence given by that expert in comparison with competing evidence by other experts. Furthermore, even if the coroner is confident of his or her ability to avoid being influenced in this manner, even subconsciously, a lay observer with no personal knowledge of the coroner, might not share that confidence.

100. On the contrary, we think that a lay observer might well apprehend that a coroner might not bring an unbiased mind to the resolution of issues which require him or her to choose between conflicting expert opinions when one side is supported by experts who have not only been accepted as part of the team assisting the coroner, but have had private meetings with the coroner herself.

101. However, the lay observer should not be presumed to form such apprehensions without considering the nature of the issue to be determined and the manner in which the opinion of the experts might be likely to impinge upon the decision. In the present case these matters cannot be identified at this stage of the inquiry. The evidence has not been completed and the first respondent has not issued any notices warning people of any contemplated findings. It cannot be assumed that any disputed opinion proffered by Mr Cheney or Mr Roche is likely to influence the first respondent's findings as to the cause and origin of the fire, or that any findings or comments are likely to be based upon any disputed evidence either of them may have given.

102. Furthermore, there are other factors that must be taken into account. The notes did not suggest that the meetings had been intended to have a tactical focus or that the first respondent had attended them in the expectation that tactical issues would be discussed. The meetings occurred at an early stage of the proceedings, and the decisive issue is not what apprehension a lay observer might have formed if aware of the notes at that stage but, rather what apprehension such a person might have formed in October 2004 when the present applications were made. During the intervening period the Chief Minister and some senior public servants presumably alluded to by the phrase "top people" had been called to give evidence and neither they nor their counsel had complained that they had been treated unfairly, whether by the manner in which statements had been taken from them or the manner in which they had been questioned in the witness box. The prosecutors made no attempt to prove that the suggested approach of interviewing such people last had, in fact, been implemented.

103. We accept that counsel for the prosecutors faced a difficult dilemma. A litigant who has reasonable grounds for seeking prerogative relief based upon apprehension of bias will be expected to act promptly. They will not be permitted to allow the proceedings to continue in the hope that they may be resolved in his or her favour and then apply for such relief should that hope not be fulfilled. On the other hand, a litigant who does raise the relevant issues promptly may find that application dismissed as premature if the facts reveal only contingent grounds for apprehension. Nonetheless, we are not satisfied that a fair minded lay observer would have formed an apprehension of bias at this stage of the proceedings rather than waiting to see whether future developments tended to confirm or dispel any tentative concern.

Responses to applications for access to documents relating to expert reports

104. On 25 August 2004 counsel for the prosecutors sought an order requiring counsel assisting the first respondent to produce documents relating to the preparation of expert reports by Mr Roche and Mr Cheney. The oral arguments of counsel were augmented by written submissions that included reference to relevant authorities. The first respondent reserved judgment overnight but subsequently rejected the application, observing that it gave every appearance of discovery and in many respects appeared to be a "fishing expedition" without substance. She also said that the nature of the submissions had left her with the impression that counsel for the prosecutors had been seeking to impugn the integrity of the inquiry and of counsel assisting and that she rejected any such suggestion as being without foundation.

105. Mr Tracey submitted that these comments had clearly been inappropriate. He pointed out that in R v Doogan: Ex parte Lucas-Smith (No 1), Whitlam J had observed at [7] that the outline of submissions prepared by counsel for the prosecutors as well as the oral submissions made in amplication had been models of clarity. His Honour had stated that the first respondent should have been greatly assisted by the exposition of the principles regarding access to documents surrounding an expert's report and, in particular, by the reproduction of passages from three Federal Court judgments. On the other hand, he felt bound to say that the submissions made by junior counsel assisting were, on the whole, "unhelpful and calculated to lead the (first) respondent into error". His Honour later added at [16], that he had not seen any material to suggest that anyone acting for the prosecutors had impugned the integrity of the inquest or inquiry or of counsel assisting the first respondent.

106. Like his Honour, we are unable to see anything in the submissions of the prosecutors that suggested that they were seeking to impugn the integrity of the inquiry or of counsel assisting the first respondent. Furthermore, we accept that his Honour was correct in his judgment as to the competing merits of the submissions and as to the need for the production of the documents in question. However, we are unable to see how the first respondent's comments could provide any ground for an apprehension of bias. In any lengthy case it is possible for counsel to trawl through the transcript in the hope of finding some judicial remark that, viewed in hindsight and with the aid of only a transcript, can be seen to have been misconceived or otherwise inappropriate. The discovery of such remarks may demonstrate that the judge or magistrate is not infallible, but it will not usually provide any basis for concern that he or she may not bring an impartial mind to the resolution of the issues in the case. Much will obviously depend upon the nature of the remarks and the circumstances in which they were made but in the present case we are unable to accept that the remarks cited offer any support for the prosecutors' contentions.

107. The prosecutors also complained that notes of the meetings attended by Mr Cheney and/or Mr Roche had been withheld from them by the first respondent and counsel assisting her.

108. During the course of delivering her decision on the production of those documents on 26 August 2004, the first respondent stated that:

I am not in possession of any relevant evidence which I am withholding from counsel, nor to my knowledge is counsel assisting me.

109. It was submitted that a lay observer would have been entitled to think that the first respondent must have realised that this statement had been untrue because the balance of the material contained in the document had included evidence that was clearly relevant to the issues that she was required to determine.

110. There are, however, two difficulties with this submission. First, it seems clear from other passages in the transcript that her Worship regarded the reports tendered during the course of the inquiry and the oral evidence given by the witnesses as "evidence", in contra-distinction to notes and other preparatory material. Second, it is by no means clear that a lay observer would have had any reason to assume that her Worship must have regarded the identified portions as "relevant" to the issues before her or, even if relevant, as having any real significance having regard to the other evidence provided in the reports.

111. On 9 September 2004, following proceedings in this Court, three folders of documents were provided to the prosecutors, including an edited version of the notes of a meeting on 28 July 2003. On 10 September 2004 Mr Whybrow complained that the notes had been edited, and on 14 September 2004 he returned to the theme, seeking access to the whole unedited document. Mr Lasry said that he did not know whether it would be provided but that he would make some enquiries. Ms Cronan, who was junior counsel assisting the first respondent, raised the issue again on 16 September 2004, referring to the edited version already produced and indicating that she would produce a third set of notes, but that this would again be in "a masked form" so that only those parts that related to Mr Cheney's involvement would be made available to the parties.

112. On 17 September 2004 Whitlam J delivered judgment in R v Doogan: Ex parte Lucas-Smith (No 1), [2004] ACTSC 91 rejecting any suggestion that the application for access to documents available to or produced by the expert witnesses in question had been a "fishing expedition". His Honour went on to explain that the very fact that a coroner is not bound to observe the rules of evidence is an important reason for a cross-examiner to be given generous access to such material.

113. On 20 September 2004 the first respondent referred to the notes that junior counsel had produced four days earlier and said that the passages that had been blanked out did not relate to the category of documents that had been requested and had nothing to do with instructions that had been given to Mr Cheney in relation to preparation of reports. Nonetheless, on the following day Mr Whybrow sought access to the excised portions of notes of the conferences on 4 June 2003 and 28 July 2003 on the basis that they related to a conference attended by both the first respondent and Mr Cheney. In response, the first respondent indicated that Mr Whybrow could see the notes but counsel assisting her objected to any copies being made. When counsel for the ACT Government requested access to the notes for himself and other parties, the first respondent told him that she did not want them taken out of the room or copied. She subsequently agreed to permit counsel to copy them for the purpose of taking instructions subject to undertakings not to further copy them or divulge their contents.

114. Mr Glissan described this as a "cloak and dagger" procedure which, he maintained, suggested some sensitivity on the part of both the first respondent and counsel assisting her in relation to these notes. No other document provided for the purpose of the inquiry had been produced to counsel only on the condition that such undertakings were given. Whilst the notes themselves had been in point form and were amenable to different and perhaps innocuous interpretations, the evident reluctance to produce them or, when produced, to have them copied was likely, it was submitted, to make a lay observer suspicious that the first respondent may have been concerned about what they might have revealed. It was further suggested that suspicion would have been heightened by the fact that the notes revealed that, even before the inquiry had formally opened, a tactical approach had been adopted involving the collection and presentation of evidence to support particular views, rather than facilitate an objective and impartial inquiry.

115. We have examined the notes with due care and can readily appreciate that a person whose sensitivity to potential criticism had been heightened by public comments, adverse press reports and cross-examination at the inquiry, might have seen some of the recorded comments as consistent with, if not indicative of, the emergence of a "party line". However, the hypothetical lay observer must be taken to have viewed the relevant events in a fair and objective manner and without any predisposition to construe terse and obviously incomplete notes by reference to pre-existing anxieties. Such an observer must also be taken to recognise that counsel assisting a coroner is likely to form at least tentative impressions as to where the truth may lie and to form strategies that to some extent reflect those impressions. Neither their reluctance to reveal those strategies, nor a coroner's reluctance to compel them to do so are necessarily indicative of bias.

The role of counsel assisting in the preparation of expert reports

116. Mr Tracey submitted that a further source of potential concern to a lay observer was the involvement of counsel assisting the first respondent in the preparation of reports by Mr Cheney and Mr Roche.

117. Both Mr Tracey and Mr Glissan made submissions to the effect that neither Mr Roche nor Mr Cheney had proven to be objective and impartial experts, but rather advocates for particular views. Even in the absence of any interference by counsel in the preparation of reports, little weight may be attached to the evidence of an expert who has adopted an adversarial stance, if it is admitted at all: see Hardy v Your Tabs Pty Ltd (in liq) [2000] NSWCA 150 at [133] and Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at 167-168. In the present case, the adversarial stance adopted by Mr Roche and Mr Cheney had been "compounded" by the intervention of lawyers assisting the coroner who had edited at least some portions of their reports.

118. Expert reports obtained with a view to being tendered in legal proceedings must, of course, comply with the rules of evidence so far as they are applicable. Hence, as Lindgren J said in Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 7) [2003] FCA 893 at [19]:

Lawyers should be involved in the writing of reports by experts: not, of course, in relation to the substance of the reports (in particular, in arriving at the opinions to be expressed); but in relation to their form, in order to ensure that the legal tests of admissibility are addressed.

119. Accordingly, the mere fact that some editing of the reports of Mr Roche and Mr Cheney occurred does not demonstrate any impropriety on the part of the lawyers in question or provide any valid ground for concern. It is true that the rules of evidence did not strictly bind the first respondent and that some latitude might have been permitted to statements in the reports that strayed to some extent beyond the bounds of admissibility. However, that consideration did not relieve those assisting the first respondent of their duty to ensure that the reports conveyed the author's opinions in a comprehensible manner, that the basis for those opinions was properly disclosed and that irrelevant matters were excluded. It has not been established that any of the lawyers assisting the first respondent sought to change passages in the reports conveying relevant opinions or information, so the prosecutors' complaints seem to have been based upon the editing of passages that were, at best, of marginal relevance.

120. For example, Mr Tracey relied heavily upon the deletion of the following passage that had been contained in a draft of one of Mr Cheney's reports:

Wilderness is an outdated 70s concept and it is dangerous. It is dangerous because in its pure form it prohibits proactive management in the area. It is elitist because it denies the elderly and infirm and at least some of the physically handicapped people access to areas of our natural heritage.

121. Mr Tracey pointed out that, when challenged about this passage, Mr Cheney had told the cross-examiner that it had been "a good job" that Mr Tracey had not been given an earlier draft. He had been asked whether it had been "even hotter" and had replied, "Oh yes". Mr Tracey contended that the passage had obviously been deleted on the advice of counsel assisting the first respondent because it betrayed such an unreasonable opposition to the preservation of wilderness areas that it was bound to evoke cross-examination of the kind that in fact occurred, as well as undermine the credibility of his opinions that were critical of a failure to adopt more aggressive fuel management policies in relation to such areas.

122. We accept that knowledge of Mr Cheney's apparent abhorrence of what he described elsewhere as "wilderness in its pure form" and the limitations which he felt it imposed on proactive management of wilderness areas, may have provided counsel for the prosecutors with material on which he could be cross-examined with a view to suggesting that he had not approached the relevant issues with a sufficient understanding of the public interest in conserving such areas. However, there is nothing in the Coroners Act that, in our opinion, would have authorised the first respondent to have inquired into the balance struck between the public interest in fuel management and the public interest in maintaining wilderness areas, and the passage in question would have been relevant only as to Mr Cheney's credit. Whilst it is customary for experts to include curricula vitae, it is not customary to include statements of personal belief for the express purpose of providing a basis for others to attack their credibility. We can see no basis for any criticism of the lawyer who apparently concluded that the passage in question should be deleted.

123. Similar considerations apply to other passages apparently excised from earlier drafts of the report. In any event, it was not suggested that the first respondent had herself participated in the editing of any such report and, even if one or more of the lawyers assisting her had strayed beyond the bounds of propriety in this respect, that fact alone would not have provided any ground for an apprehension of bias on her part.

The selection of potential witnesses to be interviewed

124. A solicitor assisting the first respondent met with a number of people including Mr Cheney. Notes were prepared under the heading "interviews", involving two columns of names. When subsequently cross-examined about this document Mr Cheney agreed that most, if not all of the people listed in the second column had been interviewed by officers of the Australian Federal Police relating to issues of fuel management. He also agreed that a notation in the first column had referred to "PLS", which apparently was a reference to Mr Lucas-Smith. An "X" was placed next to these initials along with Mr McCrae's name. When it was put to Mr Cheney that he had understood that those two people were not going to be approached to give statements in relation to fuel management, he replied "apparently so".

125. Mr Lasry subsequently suggested that the "X" may have been placed beside the entries relating to Mr Lucas-Smith and Mr McCrae because the taking of statements from them had been allocated to the ACT Government Solicitor. Mr Glissan argued that this suggestion could not be sustained. It appears that he wished it to be inferred that it meant those witnesses were to be `targeted'. Statements by Mr Lucas-Smith and Mr McCrae had been provided to counsel assisting the first respondent as early as October 2003, and a number of other officers whose names were in the second column of the list had also provided statements in that manner. Mr Glissan submitted that a decision had clearly been made not to interview Mr Lucas-Smith or Mr McCrae as well as some other officers, yet when the hearing resumed on 16 February 2004, Mr Lucas-Smith had been the first witness called. Mr Glissan expressly invited us to infer that that class of witnesses had been "targeted". By way of contrast, he referred to an email sent by Mr Roche to junior counsel and a police officer assisting the inquiry on 23 November 2003, referring to another witness and stating that, "in the future and in the witness box, he could be a good ally for us".

126. Mr Glissan submitted that counsel assisting the first respondent had clearly been attempting to build a case through the evidence they adduced rather than merely seeking to establish what had occurred. He also referred to the observation in Firman v Lasry [2000] VSC 240 that, if the conduct of counsel assisting a Royal Commissioner appeared to have been partial, and the Royal Commissioner appeared to condone that conduct, then a lay observer might reasonably apprehend partiality on the part of the Commissioner. Mr Glissan maintained that these principles were apposite to the present case because the first respondent had declined to intervene or disassociate herself from the approach that had been taken by those assisting her. When questioned on the issue, she had dismissed the relevant portion of the notes as "a list of names" and suggested that counsel should ask the author of the document what the crosses meant. Mr Glissan submitted that this suggestion should be taken to have been disingenuous.

127. We are unable to accept any of these submissions. The issue seems to have been first raised more than eight months after the meeting in question, and then by questions put to Mr Cheney who had not made the notes. Mr Cheney's supposition that Mr Lucas-Smith and Mr McCrae were not to be asked to provide statements may or may not have been correct, but even if it was, there may have been some quite unexceptionable reason for that approach, such as knowledge that alternative arrangements had been made or were to be made to ascertain what evidence those people could provide. In any event, the mere fact that one of the legal team assisting the first respondent had decided not to interview two witnesses does not provide any basis for the inference that Mr Glissan has invited us to draw. Furthermore, her Worship's comment that the question about the purpose of the notations should be addressed to the person that made them seems to have been entirely reasonable.

128. It was submitted by Mr Glissan that counsel assisting the first respondent had consistently maintained that a number of people, including several of the prosecutors, had failed to adequately warn Canberra residents of the approaching fires on 18 January 2003. Several of the prosecutors, including Mr McCrae who gave evidence on 16 April 2004, to the effect that the fire had progressed in a dramatic manner that could not reasonably have been predicted, and hence more timely warnings could not have been provided. Mr McCrae had relevant experience both in the suppression of bushfires and in the provision of mapping services. During the course of his evidence he produced a series of ten maps depicting the progression of the fires between the 8th January 2003 and 18th January 2003. His counsel then tendered the maps but counsel assisting the first respondent objected on the ground they may not have been consistent with maps earlier prepared by Mr Cheney. Some discussion then ensued during the course of which Mr Walker said that he did not understand Mr Cheney's maps "to be regarded as holy writ". He suggested that the maps prepared by Mr McCrae offered the best and clearest indication of the spread of the fire. The first respondent declined to accept them into evidence until counsel assisting had had an opportunity to compare them with the maps produced by Mr Cheney. Mr Walker expressed some bewilderment as to why a potential conflict of expert evidence would warrant the rejection of the tender to which the first respondent replied:

No, that is not the issue. The issue is: if you wish this to be put in contest or to dispute the evidence that Mr Cheney has given, it took many hours of questioning of Mr Cheney to establish the basis of his projections. And I am saying that, for these maps to stand in the same position as Mr Cheney's maps, if that is what you intend, you will need to go through the same procedure with Mr McCrae. I do not believe that you could do that with one or two questions, Mr Walker.

129. Mr Glissan submitted that the rejection of the evidence could not have been based upon any rule of evidence, even if such rules had applied to the inquiry. He went on to argue that it betrayed a reluctance to receive any material that was inconsistent with evidence given by Mr Cheney or that had been the subject of an objection by counsel assisting her.

At a glance

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