CORONER'S COURT

MELBOURNE

 

INQUEST into the DEATHS OF

 

Alan Donald STARK, Kerry ENDICOTT, Robert Harold HENDERSON, Jacqueline Mary HENDERSON, Belinda Anne ANDREWS and Geoffrey BROCKIE

 

R U L I N G

 

Having foreshadowed an application to have Mr Dick Smith called

as a witness in this Inquest, Mr Anderson, Counsel representing

the Henderson family has today made such an application, based

on a two page statement of Mr Smith dated 7 August 2008 and

annexure "A", an extract from his published work entitled "Unsafe

Skies".  This ruling is based on the statement and annexure

provided which I have now re-read in light of the submissions.

 

Mr Anderson relied on two authorities - Harmsworth v. The State

Coroner [1989]V.R. 989, an often cited authority in this

jurisdiction, binding on me as a Victorian Coroner, and R v

Doogan; Ex parte Lucas-Smith and Ors (2006) 158 A.C.T.R. 1, a

decision of the Full Court of the Supreme Court of the Australian

Capital Territory regarding, amongst other issues, the proper scope

of a coronial investigation, which although not strictly binding, is

highly persuasive. In particular he relied on pages 997-8 of the

former and paragraphs 29 and 30 of the latter.

 

Mr Anderson submitted that the radar traces in evidence establish

that the aircraft was able to be detected below Minimum Safe

Altitude (MSA), and that the Australian Advanced Air Traffic

System (TAAATS) as configured on 28 July 2004 did not sound a

Minimum Safe Altitude Warning (MSAW) in the circumstances

pertaining to that aircraft.  Mr Anderson drew my attention to Mr

Smith's credentials not only as a pilot, but as an aviation

administrator who oversaw the introduction of TAATS and would

testify that with minimal effort and cost TAATS could be

augmented with the relevant MSA information so that MSAW

would sound in respect of an aircraft in a similar situation.

 

Mr Langmead S.C., Counsel Assisting, opposed the application

citing the same authorities relied on by Mr Anderson, but to

contrary effect, and cautioning me against exceeding the proper

bounds of my jurisdiction.  He stressed that his opposition to

reception of the evidence had no bearing on the merits of Mr

Smith's views, but on its relevance to a proper coronial

investigation of the deaths of these six people, as provided by the

Coroners Act 1985.

 

Without doing justice to the detail of his submissions, and in the

full knowledge that a transcript of them will be available to the

parties shortly, they were in brief that the evidence would satisfy

the now discredited 'but for' test of causation, but is too remote to

be received.  Having re-considered the two authorities relied upon

by Counsel, I am persuaded by the force of Mr Langmead's

submissions that the evidence should not be admitted in this

inquest.

 

It should be remembered that my obligations under section

19(1)(b) of the Coroners Act 1985 are to ascertain if possible the

identity of the deceased persons, the cause of their deaths, the date

and place of their deaths – matters not in issue here – and how the

deaths occurred.  The power to make recommendations or to

comment arises, not independently, but in respect of ‘any matter

connected with the death’.  While Coroners should be robust

within the bounds of their jurisdiction endeavouring to ascertain

those matters required, they should also be circumspect about the

bounds of their jurisdiction.  As best I can express it, in my view,

the foreshadowed evidence does not inform 'how these deaths

occurred', but how similar deaths may be avoided if air safety were

differently regulated.  That is undoubtedly a laudable objective

and a worthwhile discussion, but one which I am persuaded is best

had elsewhere.

 

Dated at Melbourne, 12 August 2008

 

Paresa Antoniadis Spanos

Coroner.