Supreme Court New South Wales Medium Neutral Citation: Lynette Cecil v Attorney General of New South Wales & Anor [2012] NSWSC 1186 Hearing dates: 25 October 2011 & 26 October 2011,written submissions December 2011 Decision date: 04 October 2012 Jurisdiction: Common Law Before: Hidden J Decision: Findings of coroner quashed, new inquest ordered Catchwords: CORONERS - finding at inquest that deceased had taken his own life - application for orders that finding be quashed and a new inquest be held - examination of evidence before the coroner - new expert evidence Legislation Cited: Coroner's Act 2009 Coroner's Act 1980 Cases Cited: - Herron v Attorney General of New South Wales (1987) 8 NSWLR 601 - Country Energy v Deputy State Coroner Paul McMahon & Anor [2010] NSWSC 943 - Director-General Department of Community Services v Crombie & Anor, an unreported decision of Master Harrison 19 August 1998 - Veitch v The State Coroner [2008] WASC 187 - R v Huntbach, Ex parte Lockley [1944] 2 All ER 453 Category: Principal judgment Parties: Lynette Cecil (applicant) Attorney General of New South Wales (1st respondent) Deputy State Coroner, Magistrate Paul MacMahon (2nd respondent) Representation: Counsel: G Miller QC with A Davis (applicant) D Arnott SC (1st respondent) Solicitors: John Isaksen, Adams & Partners Lawyers (applicant) I V Knight, Crown Solicitor (1st respondent) File Number(s): 2011/102707 Publication restriction: Yes Judgment 1In the evening of 3 August 2005, Adam Cecil was found seriously injured on the driveway of the unit complex in Cronulla where he lived. He died shortly thereafter in hospital. At an inquest, held between late 2007 and early 2008, a coroner found that he had committed suicide. His mother, Lynette Cecil, who was represented at the inquest, does not accept that finding. She has applied to this court, pursuant to s 85 of the Coroner's Act 2009, for orders that the inquest be quashed and a new inquest be held. In the proceedings, initiated by summons, the respondents are the Attorney General of New South Wales and the coroner who conducted the inquest, Magistrate Paul MacMahon, Deputy State Coroner. The coroner has entered a submitting appearance. In this court Mrs Cecil was represented by Mr Miller QC with Mr Davis, and the Attorney General by Mr Arnott SC (now a judge of the District Court). The coroner's findings 2Appropriately, in my view, in his findings the coroner referred to the deceased by his given name, Adam. I shall do the same. He was 27 years of age, and was living in a unit within the complex, situated at 3 Ozone Street, Cronulla. At that time the complex consisted of two separate buildings, and his unit was on the third floor of one of them. He was found lying on the driveway a little before 8.00pm by another resident, Dr Suzan Wong, who was returning to her apartment. Ambulance officers could not revive him. He was taken to Sutherland Hospital where, despite further efforts to revive him, his life was pronounced extinct about an hour later. 3Dr Paull Botterill, a forensic pathologist, performed an autopsy the following day. He found that Adam had suffered fractures of the skull, inhaled blood, bruising to the left lung, damage to the spleen, left kidney, adrenal glands and tissues attached to the bowel, and he found evidence of bleeding into the chest and belly cavities. He found no injuries suggesting recent assault, and concluded that the cause of death was a complex of injuries consistent with a fall or a jump from a height. 4Toxicological analysis of a blood sample taken at the autopsy disclosed that there were present in Adam's blood quantities of citalopram, paracetamol, and dextropropoxyphene. Interpreting the report of the Division of Analytical Laboratories, the coroner noted that the concentration of dextropropoxyphene was at a potentially fatal level, and the concentration of paracetamol at a potentially toxic level. There was a blood alcohol reading of 0.228/100ml, described by the coroner as "very high." 5Police gained entry to Adam's apartment, where they found a notebook on a kitchen bench which had written on it, in upper case letters, the following: "WILL I ADAM CECIL LEAVE EVERYTHING I HAVE TO MY BROTHER MARK (THE STRONGEST PERSON I KNOW)." This note was signed and dated 3 August 2005, the day of his death. 6The coroner noted evidence that Adam was "a very popular and hardworking young man", who "did not have an enemy in the world." Until shortly before his death he had been in a relationship with a young woman, Nicole Timms, who, the coroner found, "obviously cared deeply for him." However, there was evidence of animosity between Adam and his parents, especially his father, and problems in his relationship with Ms Timms. There was psychiatric evidence that the source of these difficulties was his own psychological makeup, but it is not necessary to explore that issue. 7On 24 December 2004, Adam and Ms Timms had an argument. He returned to the unit, where they were then living together, and phoned her on her mobile on a number of occasions, but she did not want to speak to him. He jumped from the balcony of the unit, landing on a grassed area and sustaining significant injuries. He underwent surgery at St George Hospital. He was visited in hospital by Mr Ian Jessiman, the father of a friend of his. He told Mr Jessiman that he had lost the love of his life, and that he was a failure. He said, "I can't even do a job on myself right", and, "next time I won't land on something soft in the garden, I'll land on something like concrete." 8Apart from treatment for his injuries, Adam was also diagnosed with depression and prescribed anti-depressant medication, which he was taking at the time of his death. After a period of recuperation, he and Ms Timms returned to the unit. However, their relationship deteriorated and on 1 August 2005, two days before he died, Ms Timms left the unit. On 3 August, with Adam's help, she moved her furniture and effects from the premises. At 7.53pm a text message was sent from Adam's mobile phone to his father's mobile, which read, "it's all your fault." It was only a matter of minutes thereafter that Ms Wong found him on the driveway. 9Dr Botterill was questioned at the inquest about possible mechanisms for Adam's injuries, but maintained that they were most likely the result of a jump or a fall from a significant height. Given the position where Adam was found, there were a number of places from where he might have fallen. The balcony was not one of them, as it was on a different side of the building. There were windows in the unit on the relevant side but police ruled them out because they were found to be intact with their internal flyscreens attached. The coroner, who had a view of the scene, agreed with this conclusion. Other possibilities were a fall from a nearby tree or from the roof of an adjoining garage. Dr Botterill considered those possibilities unlikely, as a fall from a greater height was needed to explain the injuries. On his evidence, they could be explained by a fall from the roof of the unit block, and this was the coroner's finding. 10His Honour was fortified in that view by the evidence of Dr Wong. Her unit was in the other block in the complex. She had left it that evening for a walk. On her return, she mistakenly entered the block where Adam's unit was, realising her error when she reached the top of the internal stairs. She retraced her steps, and it was when she left the block that she saw Adam lying on the driveway. He was wearing reflective clothing and she saw him immediately. She had not seen him as she entered the block. His Honour concluded that he had fallen from the roof of that same block while she was inside it. 11An important question in the inquest, and in the proceedings before me, was how Adam could have got onto the roof of the block. There was no physical evidence suggesting how he might have done so. The available options were climbing onto the roof from the balcony of his unit or through a manhole in the corridor outside the unit, although his Honour was of the view that there may also have been other ways of accessing the roof. There was no evidence whether or not Adam knew of the manhole. To access the roof from the balcony would have been a difficult exercise, particularly given his level of intoxication by drugs and alcohol, although his Honour noted that there was evidence that he was "very determined and capable of remarkable physical achievements if he wanted to do so." Ultimately, his Honour was unable to arrive at any firm conclusion about how he got onto the roof but, nevertheless, was satisfied that he had done so. 12In the light of this evidence, his Honour was also satisfied that Adam had suffered his injuries at the location where he was found, and ruled out the possibility that he had sustained them elsewhere and then moved, or was taken, to that position. His Honour also found no evidence to suggest that there was any "third party involvement" in Adam's death, in particular, that he was pushed from the roof. I have referred to the evidence of his popularity, and there was nothing to suggest that anyone had a motive to do him harm. 13His Honour considered evidence of unidentified men seen in different locations of the units at the time of Adam's death or earlier that evening. Dr Wong said that, as she was walking up the stairs of Adam's block, she passed a man going down the stairs. Stuart Patterson, another resident of the units who knew Adam by sight, passed Adam's garage, which was open, at about 7.00pm. He saw Adam and another man inside the garage. Scott Emerson, who did not know Adam at all, was a friend of one of the residents of the units. He gave evidence that he saw two men in that garage at about 7.30pm as he was arriving to visit his friend. One of the men was wearing a fluorescent workman's shirt, apparently consistent with the reflective clothing Adam was wearing when Dr Wong saw him. 14His Honour noted that whoever was seen by those witnesses remained unidentified, and there was nothing to suggest any involvement by that person in Adam's death. As to the man seen on the stairs by Dr Wong, his Honour concluded from the evidence to which I have earlier referred that "at about the very time" that she was passing him on the stairs Adam must have been falling from the roof. Given the position of the man on the stairs, his Honour said, it would be "physically unlikely, if not impossible, for such a person to have any direct involvement in Adam's fall ... ." As to the man seen in the garage, his Honour noted that that sighting was at a time significantly earlier than Adam's fall and that there was no evidence of what that person did after he left the garage. 15In the light of the whole of the evidence, his Honour was satisfied that Adam's fall from the roof was not accidental. In addition to the evidence suggestive of suicide to which I have referred, he considered that the very large amount of prescription drugs and alcohol which Adam had consumed conveyed "an intention to self-harm." He expressed his conclusion in this way: "I am comfortably satisfied that Adam's fall from the roof of the Ozone Street apartments was not an accident but the result of a deliberate attempt on his part to take his own life. It appears likely that after the break up of his relationship with Nicole he returned to his apartment, wrote his will, accessed the roof of the apartment, levied blame for the failure of his relationship with Nicole at his father by the sending of the text message and then jumped onto a concrete surface as he had threatened, in December 2004, to Ian Jessiman he would do 'next time'." The application in this court 16Section 85 of the Coroner's Act empowers this court to quash an inquest and order a new inquest if it is "satisfied that it is necessary or desirable to do so in the interests of justice" because of any of a series of matters, expressed in pars (a) and (f), set out in the section. Relevant for present purposes are the following: "(d) an insufficiency of enquiry, or (e) the discovery of new evidence or facts ... " 17For Mrs Cecil, it was contended that the coroner did not deal adequately with the evidence before him in arriving at his conclusion that Adam had taken his own life. In addition, reliance is placed on new expert evidence from Dr Johnn Olsen, consultant physician in occupational and environmental medicine, Professor Ian Coyle, principal consultant to Safetysearch Pty Ltd, forensic consultants, and emeritus Professor John Fryer, surveyor. All three experts provided reports, and Dr Olsen and Professor Coyle gave oral evidence. It is Mrs Cecil's case that the finding of suicide was in error, and that there should have been an open finding. 18In written submissions before the hearing, it was put on Mrs Cecil's behalf that the police investigation proceeded upon "an erroneous assessment by investigating officers and a determination of suicide", as did the inquest itself, and that material submitted at the inquest by Mrs Cecil's solicitor was "given scant attention." During the hearing and in final submissions that last matter was not developed. The focus of the application was upon how Adam might have gained access to the roof of the building, and, if so, how he might have traversed the roof and descended from it. It was to this which the new expert reports were directed. It is necessary, firstly, to review briefly the evidence on this issue at the inquest. The evidence at the inquest 19As noted above, the coroner thought that there may have been ways of accessing the roof other than from the balcony of Adam's unit or the manhole in the corridor outside it. However, his Honour did not suggest any other means of access and the evidence centred upon the balcony and the manhole. 20The balcony had a metal railing around it, and above it was an awning made of plastic sheeting on a metal frame. There was a barbeque on the balcony, with a protective cover on it. Police considered the possibility of Adam having used the railing or the barbeque as a foothold, then having pulled himself up onto the awning, and from there onto the roof. However, the awning was seen to have a large amount of grime and dust both on the top and on its underside, which appeared undisturbed and which showed no marks suggesting that a person had seized hold of it or had been upon it. Moreover, the awning was not of robust construction and was unlikely to have been able to support the weight of an adult person. 21The third floor of Adam's unit block was also the top floor. In the corridor outside his unit was a manhole, giving access to the roof cavity. Within the roof cavity there was a trapdoor providing access to the roof. One would normally use a ladder to get to the manhole but, as will be seen, other possible mechanisms to reach it were explored in the evidence in this court. Investigating police did not find a ladder in the corridor in the vicinity of the manhole. Having gained access to the roof cavity from that manhole, it was necessary to move some distance through it to reach a trapdoor which gave access to the roof. A police officer who inspected the roof cavity noted that there was a small amount of natural light from that trapdoor, which was fixed in a partly open position. There would also have been a small amount of light from ventilation holes on the exterior wall. It should be noted, however, that the police officer inspected the roof cavity during daylight hours. (I should mention that there was also a manhole in the laundry of the unit, but it was clear from police observations that it could not have been used to get to the roof.) 22Evidence about the effects of the alcohol and drugs detected in Adam's blood was given by Associate Professor Graham Starmer, a consultant pharmacologist. Put briefly, he explained that citalopram is a component of anti-depressant medication. He said that the level of that drug in Adam's blood sample was not particularly high and was consistent with a daily dose of medication of that kind. Dextropropoxyphene is an analgesic, often dispensed alone (Doloxene) or in combination with paracetamol (Di-Gesic). He did not see the level of paracetamol in the blood sample as significant, but described the concentration of dextropropoxyphene as "potentially seriously toxic ... ." He added that that drug exacerbates the effect of alcohol. 23As to the level of alcohol demonstrated by the reading, he reported that its effects "on balance and co-ordinative function would have rendered it much more difficult" for Adam "to climb from the balcony of his unit to the roof." In oral evidence, he was not prepared to say that it was "just not possible" for Adam to have done so, but considered it "highly unlikely." 24I have referred to Dr Botterill's opinion that Adam's injuries were best explained by a fall from a significant height. In oral evidence he accepted that a fall from the third or fourth storey of a building would be high enough. There were no fractures to any of Adam's limbs, but he said that a fall from such a height would not necessarily cause fractures of that kind, particularly if the primary point of contact with the ground was the head or the upper torso. He described the skull fractures and the internal injuries as severe, saying that they demonstrated the measure of force involved in high speed motor vehicle impacts. 25That said, he did not see the injuries as consistent with Adam having been in a car accident or having been struck by a car as a pedestrian. Nor, as I have said, did he see them as consistent with an assault. He said that they were far more likely to be decelerative injuries caused by a fall. Indeed, he described a fall as "the only reasonable explanation for all of them." The new evidence 26The experts who have provided the new evidence were engaged in 2009 and 2010. Dr Olsen inspected the scene in May 2009 and provided a report of 29 June 2009. Professor Coyle inspected the scene in December 2009, and prepared a report of 13 January 2010. Professor Fryer visited the scene on 10 September 2010, and furnished a report of 29 September 2010. No issue was taken with the qualifications of these experts to express the opinions they did. 27I also had the benefit of an inspection of the scene, at which some explanatory evidence was given by Dr Olsen and Professor Coyle. At the time those two experts and Professor Fryer went there for the purpose of preparing their reports, there had been some changes to the area exterior to Adam's unit block since his death. However, for present purposes those changes are not material. 28Dr Olsen is qualified both in medicine and engineering, holding a Master's degree in biomechanical engineering. In the light of the evidence at the inquest, he concluded that Adam could not have gained access to the roof from his balcony. He considered that the plastic on the awning was of a type which would be brittle unless it had been very recently installed, a view which had also been expressed by one of the investigating police officers. 29This was the opinion expressed in his report, and he maintained it in cross-examination. He was asked whether he thought it possible to climb to Adam's balcony from the balconies of the units below it. He said that he did not believe that that was possible as it was "too high." However, there was evidence at the inquest from Mr Patterson, to whom I have referred earlier, that a previous occupant of that unit had climbed to the balcony from the lower balconies because he had locked himself out and knew that the doors giving onto the balcony would be open. The witness described that person as "an athletic sort of guy" but said that he was not particularly tall. 30Dr Olsen inspected the manhole in the corridor outside Adam's unit. The height of the ceiling, in round figures, was 2.5 metres. He considered the possibility of Adam having "shimmied" up the walls of the corridor to reach the manhole. He positioned his back against one wall, with the palms of his hands against the surface, and placed his feet against the opposite wall. The painted walls were smooth, but he was wearing non-slip rubber footwear. He was able to support himself in that position, but he could not shift his hands upwards so as to raise his body above that position. He also noted that Adam was found to be wearing work boots, which did not have non-slip soles. He concluded that there was no possibility of climbing the walls in that way. 31In cross-examination, it was put to Dr Olsen that Adam, who was 180cms tall, could have jumped up and touched the manhole. Dr Olsen said that he did not think that was possible. The manhole was in a position close to the door to Adam's unit. Apart from the door giving access to the unit, there was a metal security door which, of course, opened outwards. It was suggested that Adam might have jumped up, knocked the manhole cover out of position, seized the edge of the manhole with his hands and then pulled himself up, using the knob of the main door or the security door as a foothold. Dr Olsen thought this unlikely, noting that it would still be "a fairly long reach", and that it would be difficult for Adam to have levered himself up in that way and then get through the manhole, which he described as "very narrow." 32The roof is made of corrugated fibro. It slopes gradually downwards towards the edge above the driveway where Adam was found. The height of the roof at that point, again in round figures, is 10 metres. From the statements of police who attended the scene, Dr Olsen noted that Adam was lying about 5 metres from the building alignment. 33The witness, Dr Wong, saw a pool of blood around Adam's head and left shoulder. Ambulance officers who attended to him removed some of his clothing in the process of treating him. A police officer who attended the scene after Adam had been taken to hospital observed an area of blood pooling and bloodstained clothing on the driveway. Photos of that area were in evidence. The report of the surveyor, Professor Fryer, was based upon those photos. It is unnecessary to examine the detail of his careful report. It is sufficient to say that, upon the assumption that the area where the bloodstained clothing was found was where Adam had struck the ground, it was approximately 6 metres from the wall of the unit block. 34As part of his biomechanical assessment of the area, Dr Olsen calculated the speed at which Adam would have to have jumped from the roof, 10 metres above the ground, so as to strike the ground at a point 5 metres from the building alignment. He concluded that Adam would need to have been running across the roof at a speed of a little over 12 kms per hour, which he described as "a moderate running speed." He reported that he found it "difficult to see" how Adam could have run at that speed "across a strongly corrugated fibro roof, maintaining good foot placement." Particularly was this so given his high blood alcohol reading. In a supplementary report, after Professor Fryer's report had been furnished, he calculated that Adam would have to have been running at a little over 15 kms per hour to have struck the ground 6 metres from the building alignment. 35However, he acknowledged in cross-examination that these calculations were founded upon an assumption about the point at which Adam struck the ground. He agreed that he could have been conscious for a few minutes despite his injuries, so that it was possible for him to have struck the ground at another point and to have crawled or walked to the position where he was found. It was put to him that Adam might have jumped from his balcony on this occasion or, perhaps, have fallen from the balcony in an attempt to climb from it onto the roof. He rejected that hypothesis, saying that the injuries he had suffered were not consistent with having landed on grass. 36In oral evidence, Dr Olsen agreed with Dr Botterill that the skull fracture and internal injuries indicated a force such as might occur in a high speed motor vehicle accident. However, a significant part of his report was devoted to an examination of Dr Botterill's post-mortem findings, and his opinion that even more severe injuries would be expected if Adam had fallen on the bitumen surface from a height of 10 metres. For this purpose he had regard to the forces involved and to research material, which I need not set out. Dr Botterill had noted that the injuries were predominantly to the left side, suggesting that Adam had fallen from a height and landed on that side. 37Put shortly, Dr Olsen noted the finding of what he described as a "limited" skull fracture, with no extra-dural or subdural haemorrhage. He said that such a fall would almost certainly lead to "massive skull fractures with consequent intracranial haemorrhage." While there were superficial injuries to the neck, there were not cervical spine fractures which, again, he would have expected. There were multiple abrasions and bruises in the region of the left shoulder but, yet again, no fracture. He reported that bruising and abrasions without fractures "would be highly unlikely to be caused by a 10m fall directly onto bitumen." Similarly, he noted the absence of fractures to the ribs, expressing the opinion that the "mechanical trauma" from such a fall "would have caused severe rib fractures and much more extensive internal injury" than Dr Botterill observed. I have referred to the absence of fractures to the pelvis and the lower limbs, especially the left limb. Yet again, he asserted that there would have been such fractures after such a fall. 38In cross-examination he was referred to the injuries Adam had suffered as a result of his jumping from his balcony on 24 December 2004. These were recorded as a fracture of the right radius and ulna and a subconjunctival injury to one of his eyes. He described this as "a very low level of injury" considering the height from which Adam had fallen on that occasion but, again, he noted that Adam had fallen onto grass and said that, in assessing injury from a fall, "the surface that you land on is extremely important ... ." He added that grass was "probably, one of the best surfaces you can land on, apart from sand." 39He concluded that the "biomechanical assessment indicates that the injuries sustained are simply not consistent with having fallen from the roof of the building." He expressed his final conclusion in this way: "I have considered various matters and based on the biomechanics of the injury sustained together with the biomechanics of the environment, it is my opinion that the likelihood that Adam received his fatal injuries by falling or jumping from the roof of the building would be so small as to be considered remote or farfetched. I would go so far as to say that it is almost impossible that his injuries were sustained by falling from the roof of the building. Although no other mechanism of receiving the fatal injuries have (sic) been proposed, there would be many plausible explanations that could and should have been considered. Irrespective of the difficulties however in proposing a workable theory as to the cause of death, I would say that in my opinion the cause of death was not a fall from the building." 40Professor Coyle's expertise is in human biometrics, forensic psychology and psychopharmacology. He shared Dr Olsen's view of the improbability of Adam being able to run across the corrugated fibro roof at the postulated speeds, while also acknowledging that those calculations were founded upon the assumption that he had struck the ground at the spot where he was found. He also commented, however, on the light which would have been available for that exercise. He had regard to the lack of natural light at the relevant time, the level of street lights in the surrounding area, which was below the roof, and the effect of alcohol on visual acuity. In particular, he referred in his report to the "extremely low contrast between the ridges and corrugations of the roof", so that there would have been "few cues to depth perception on the roof itself with the consequence that determining the ridges and valleys of the corrugated asbestos cement roof would have been highly problematic ... ." 41He considered the possibility of Adam gaining access to the roof through the manhole, agreeing with Dr Olsen's assessment of the improbability of his having done so. He used a ladder to inspect the manhole. He found that the cover was of solid construction, weighing 4 to 5 kilograms, and required a forceful push to dislodge it. He also found it difficult to pass through the manhole, even though he was standing on "a properly situated and balanced stepladder." He also rejected the possibility of Adam shimmying up the wall. 42In his report he did not consider it possible for Adam to have jumped up, dislodged the manhole cover and pulled himself into the roof void, unless he were "exceedingly athletic and co-ordinated." Asked in cross-examination whether Adam could have jumped up and pushed the manhole cover aside, he said that he could not discount that prospect but it would be difficult. In his report he also discounted the possibility of Adam having used the screen door for support, saying that it would not provide a viable means of support and that such an attempt would be very likely to cause "visibly obvious" damage to the mesh of the door. He adhered to this opinion in oral evidence. Asked in cross-examination whether the handle of the front door might have provided an adequate foothold for the purpose, he said, "Even for someone who is very fit, not affected by alcohol and highly trained, it would be extraordinarily difficult." 43He was taken back to this hypothesis in re-examination, as follows: "Q To what extent would the capacity to undertake that exercise be affected if the person doing that were wearing work boots at the level of chemical intoxication that you've been referred to? A I'd regard it as remote to the point of fantasy." 44Professor Coyle also considered the difficulty Adam would have had moving through the roof void if he had been able to gain access to it. Again, he referred to the fact that the area would have been almost completely dark, although acknowledging the possibility that he might have used the light of his mobile phone to provide some illumination, and to the level of his intoxication. In his report he reviewed the level of alcohol and of drugs in Adam's blood sample, expressing pharmacological opinions consonant with those of Associate Professor Starmer. On this aspect he observed in his report: "At this level of intoxication, independent of all other factors, it is my opinion that the psychomotor skills required for Mr Cecil to access the roof void through the manhole and run across the roof in conditions of near darkness would have been conspicuously absent." 45His overall conclusion was as follows: "From a biomechanical perspective it is my opinion that the actions Mr Cecil is alleged to have performed by accessing the roof through the manhole, climbing through the roof void and running/jumping to his death off the roof would have been beyond the physical skills and strength of all but the most skilled and fit athletes. Even then, I regard the prospect of running across the corrugated roof at sufficient speed to attain the launch velocity calculated by Dr Olsen as remote considering the prospect of pronating/supinating his ankles, slipping and/or crashing through the corrugated asbestos roof. This prospect would have been rendered more remote by the work boots he was wearing at the material time. The prospect of him being able to perform these actions would have been further compromised by the visual factors that obtained on the night in question. Independent of all other effects of the drugs and alcohol he had consumed his vision would have been very seriously compromised to the point where, in my opinion, he would not have been able to perceive the ridges and corrugations of the roof with the near inevitable prospect that he would have slipped and or crashed through the roof before running/jumping off same. Considering the profound effects on his cognition and psychomotor performance of the alcohol and dextropropoxyphene he had consumed it is my opinion that any prospect he had of performing the actions alleged, remote though they were, would have been rendered even more remote as a result of ingestion of these drugs. In combination they were seriously toxic, if not potentially lethal per se." 46Finally, I should record that Associate Professor Starmer provided a supplementary report, having reviewed the reports of Dr Olsen and Professor Coyle. His conclusion was as follows: "Both Professor Coyle and Dr Olsen have described in detail the actions which would have been necessary for Mr Cecil to have gained access to the roof of the building in which he lived. Professor Coyle considered that the profound effects of alcohol and dextropropoxyphene on Mr Cecil's cognition and psychomotor performance would have reduced any prospect of him being able to perform the alleged actions and I agree with this opinion." The law 47In Herron v Attorney General of New South Wales (1987) 8 NSWLR 601, the Court of Appeal considered the predecessor of s 85 of the Coroner's Act, s 47(2) of the Coroner's Act 1980. That provision was in broadly similar terms to s 85, in particular, empowering this court to order a fresh inquest if it were satisfied that "it is necessary or desirable in the interests of justice that the inquest be quashed and a fresh inquest be held ... ." Kirby P observed (at 613): "Those words 'in the interests of justice' are plainly words of the widest possible reference. Indeed, there could scarcely be a wider judicial remit." McHugh JA said (at 617): "In the forefront of matters to be considered in determining whether it is in the interests of justice to hold a fresh inquiry is the existence of a reputable body of evidence which, if accepted, would indicate that the original finding as to the manner and cause of death ... was erroneous. The public interest requires that the finding as to the manner and cause of death ..., if it be an error, should be corrected." 48In Country Energy v Deputy State Coroner Paul McMahon & Anor [2010] NSWSC 943, Schmidt J was dealing with an application under the current provision, s 85. Her Honour's exposition of the applicable law is helpful. After referring to Herron v Attorney General, she said at [39] - [40]: "[39] In my view, the construction of s 85 is relatively straightforward. It requires the Court to be satisfied that the interests of justice require that a fresh inquest be ordered. That satisfaction must be reached in the face of the evidence, as to the matters specified. The Court of Appeal's view in Herron, that the predecessor section contained a wide discretion, applies equally to s 85. [40] Of course such a wide discretion must be exercised on a principled basis, having in mind the competing public interest considerations which arise, whenever an application for a fresh inquest is made. Mere dissatisfaction with a conclusion reached at an inquest, or even that a different conclusion than the one reached, might have been available on the evidence, or even on new evidence subsequently discovered, which supports evidence already before the Coroner in the earlier inquest, may not provide a sufficient basis for the discretion to be exercised. As McHugh J discussed, what must be established is the real possibility that the original finding as to the manner and cause of death was erroneous, with the result that the inquest has failed to achieve what the Coroners Act envisages, namely that the manner and cause of death be determined." 49In Director-General Department of Community Services v Crombie & Anor, an unreported decision of Master Harrison (as she then was) of 19 August 1998, her Honour was considering an application under the former provision. At pp 31-2, she said (omitting references to authority): "The principles on which I should proceed are not in doubt. Provided that an applicant establishes one or more of the defects specified in the subsection then a fresh inquest or inquiry may be ordered where it is necessary or desirable, in the interests of justice that there should be a further inquiry ... . It is not fundamental to the making of an order that a fresh inquiry would be likely to lead to a different finding or verdict. However, the court in considering the public interest, should consider the nature and extent of the defect, its bearing upon the outcome or probable outcome of the coronial inquiry and the likelihood of a fresh inquiry conducted without such a defect producing a different finding or verdict. In weighing the interests of justice it is relevant to consider whether any practical end is likely to be gained by ordering a fresh inquiry. ... . The court does not look to mere technical deficiencies but if there is a real risk that justice had not been done, the court should order a new inquest ... ." 50To the same effect are the observations of Beech J concerning a similar Western Australian provision in Veitch v The State Coroner [2008] WASC 187. His Honour said at [43] - [44] (omitting references to authority): "[43] ... it is not necessary to establish that a different verdict will probably be arrived at on a second inquest. Rather, it will be sufficient if there is a possibility that the result of a second inquest will be different from the first. There must be something more than mere speculation ... . [44] The reference in the cases to 'the possibility' of a different outcome must, I think, be read as a reference to a real or realistic possibility, not a merely theoretical possibility." Submissions 51Final submissions were provided in writing after the hearing. For Mrs Cecil, Mr Miller and Mr Davis relied upon the reports of Dr Olsen and Professor Coyle as further support for the evidence at the inquest questioning how Adam could have got onto the roof of the unit block. More importantly, that evidence cast fresh light upon the difficulty Adam would have had gaining access to the manhole and, if he had, finding his way through the roof cavity. Equally, it examined and highlighted the improbability of Adam having negotiated the corrugated fibro roof, particularly at a significant speed. Reliance was also placed on the support available from the supplementary report of Associate Professor Starmer. All this material, it was submitted, was carefully considered scientific evidence which, in the case of Dr Olsen and Professor Coyle, was unshaken in cross-examination. As it was put, "... the fundamental thesis advanced by the experts has not changed." 52It was noted that the coroner's finding as to the manner of Adam's death was his having jumped from the roof of the unit block. It was submitted that, even if it be accepted that it was possible that Adam had jumped from his balcony and then moved to the position where he was found, that was an issue which the coroner had not considered and which supported an argument that his findings "may be unsafe." Moreover, it was argued, if it were possible that Adam had fallen from the balcony in an attempt to climb to the roof, that might support a finding that the death was accidental and not suicide. The submissions concluded with the assertion that it should be found that Adam's death was the result of multiple injuries "sustained in a manner and cause unknown." 53Submissions for the Attorney General were prepared by Mr Arnott, assisted by Ms Anina Johnson, solicitor advocate at the New South Wales Crown Solicitor's Office. They acknowledged that "some aspects of the death of Adam Cecil will remain a mystery", but added that this was "not unusual in cases of this nature." The fundamental submission was that the fresh evidence produced in Mrs Cecil's case "does not establish that there is a real possibility that the original inquest failed to establish the manner and cause of his death." It was noted that there was no challenge to the body of evidence conveying that Adam intended to take his own life that day. It was also noted that, despite Dr Olsen's assertion in his report that there could be "many plausible explanations" for Adam's death other than that found by the coroner, none was advanced. 54As to the difficulty of Adam having gained access to the roof by the means considered in the evidence, reliance was placed upon the coroner's observation about his determination and his capacity for remarkable physical achievements. As to the evidence of Dr Olsen and Professor Coyle to the effect that Adam would have to have run across the corrugated fibro roof to have landed in the position where he was found, it was emphasised that that was not necessarily the point at which he had struck the ground. It was submitted that the alternative scenario put to Dr Olsen, that Adam had jumped or fallen from his balcony and had then managed to move to the position where he was found, could not be ruled out. 55In summary, it was put that the contention of counsel for Mrs Cecil that the manner and cause of Adam's death is unknown was untenable. At its highest, it was argued, the case presented on her behalf established that the point in the unit complex from which Adam fell or jumped is unknown, but that issue alone would not make it "necessary or desirable in the interests of justice to order a fresh inquest into his death." Conclusion 56I have found this a most difficult decision but, after careful consideration, I am satisfied that I should make the orders sought by Mrs Cecil. I should record that her counsel referred me to the English decision of R v Huntbach, Ex parte Lockley [1944] 2 All ER 453, in which the King's Bench Division set aside a coroner's finding that a young man had committed suicide. Viscount Caldecote, delivering the leading judgment, concluded that that finding was unsupported by the evidence and was no more than "an attractive possible theory" (at 456). That is certainly not this case, in which there was a substantial body of evidence from which it might be inferred that Adam intended to commit suicide on the day in question or, at least, was contemplating that course. 57However, that does not mean that the question how he might have achieved that end is to be ignored. An integral part of the coroner's findings was that the manner of death was his jumping from the roof of the unit block. This conclusion was supported at the inquest by the evidence of Dr Botterill. Yet the whole of the evidence, both at the inquest and received in this court, leaves one wondering how he got onto the roof, even after making due allowance for the measure of his determination and athleticism. It may also raise a question whether, given his level of intoxication, he could have traversed the corrugated fibro roof at any speed. 58The evidence about that matter is clear enough, although it is appropriate to refer to one aspect of the submissions for the Attorney General. On the possibility that Adam gained access to the roof from his balcony, I have referred to evidence that a former occupant of his unit had managed to climb to that balcony from the balconies below it. However, it is apparent from photographs of the scene taken at the relevant time that the balconies of the lower units did not have a plastic awning above them. It was only the balcony of Adam's unit that did. There is no need to repeat the evidence tending to demonstrate that Adam had not climbed onto that awning or, indeed, attempted to do so. 59An important part of Dr Olsen's evidence was his assessment of the injuries which might have been expected if Adam had fallen onto the bitumen surface from the height of the unit block. This evidence is in conflict with that of Dr Botterill, yet in this court there was no evidence from Dr Botterill, written or oral, in which those matters were addressed. Nor was any evidence led on behalf of the Attorney General, from Dr Botterill or any other source, concerning the likelihood of Adam's injuries being the result of having jumped or fallen from his balcony. These are important questions which, in my view, require examination at a further inquest. 60In the light of all these matters, it seems to me that there is real possibility that the coroner's finding as to the manner and cause of death was erroneous, to adopt the words of McHugh J in Herron, and that a new inquest might find that there is sufficient doubt about the circumstances of Adam's death as to arrive at an open finding. Whether it would do so, of course, is not a matter for me to predict. It may be that further inquiry would still lead to the conclusion that Adam had taken his own life. That, however, does not alter the fact that a further inquiry is called for in the interests of justice. 61Accordingly, the findings of the coroner are quashed and I direct that a new inquest be held into the death of Adam Cecil. I shall consult the parties as to whether any ancillary orders should be made and, if necessary, hear argument on costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 October 2012