R v Doogan; ex parte Lucas-Smith & Ors [2004] ACTSC 91 (17 September 2004)

Last Updated: 29 October 2004

THE QUEEN v CORONER MARIA DOOGAN; EX PARTE LUCAS-SMITH and Ors

[2004] ACTSC 91 (17 September 2004)

CATCHWORDS

CORONERS - hearing at inquest and inquiry - procedural fairness - cross-examination of expert witnesses - access to documents surrounding experts' reports.

Coroners Act 1997 (ACT), s 47(1)

Australian Securities and Investments Commission v Southcorp Ltd [2003] FCA 804; (2003) 46 ACSR 438 applied

Musumeci v Attorney General of NSW (2003) [2003] NSWCA 77; 57 NSWLR 193 applied

Scampi v Western Australia [2001] FCA 110 applied

Smith v Western Australia (2000) 98 FCR 359 applied

SC 566, SC 567 and SC 568 of 2004

Judge: Whitlam J

Supreme Court of the ACT

Date: 17 September 2004

IN THE SUPREME COURT OF THE )

) No. SC 566 of 2004

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: THE QUEEN

AND: CORONER MARIA DOOGAN

Respondent

EX PARTE: PETER LUCAS-SMITH

MICHAEL CASTLE

Prosecutors

ORDER

Judge: Whitlam J

Date: 10 September 2004

Place: Canberra

THE COURT ORDERS THAT:

1. The respondent be prohibited from further taking the evidence of Noel Phillip Cheney in accordance with her decision of 26 August 2004.

2. The respondent be prohibited from taking the evidence of Trevor M Roche in accordance with her decision of 26 August 2004.

IN THE SUPREME COURT OF THE )

) No. SC 567 of 2004

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: THE QUEEN

AND: CORONER MARIA DOOGAN

Respondent

EX PARTE: AUSTRALIAN CAPITAL TERRITORY

MICHAEL COLLINS

PETER NEWHAM

IAN BENNETT

ANTHONY GRAHAM

Prosecutors

ORDER

Judge: Whitlam J

Date: 10 September 2004

Place: Canberra

THE COURT ORDERS THAT:

1. The respondent be prohibited from further taking the evidence of Noel Phillip Cheney in accordance with her decision of 26 August 2004.

2. The respondent be prohibited from taking the evidence of Trevor M Roche in accordance with her decision of 26 August 2004.

IN THE SUPREME COURT OF THE )

) No. SC 568 of 2004

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: THE QUEEN

AND: CORONER MARIA DOOGAN

Respondent

EX PARTE: RICHARD McRAE

ODILE ARMAN

Prosecutors

ORDER

Judge: Whitlam J

Date: 10 September 2004

Place: Canberra

THE COURT ORDERS THAT:

1. The respondent be prohibited from further taking the evidence of Noel Phillip Cheney in accordance with her decision of 26 August 2004.

2. The respondent be prohibited from taking the evidence of Trevor M Roche in accordance with her decision of 26 August 2004.

1. These proceedings were heard together. The respondent in each matter is the coroner holding concurrently an inquest into four deaths and an inquiry into the Canberra bushfires of January 2003, under the Coroners Act 1997 ("the Act"). For the purposes of the inquest and inquiry the respondent is conducting a hearing, which has already sat for over 70 days. The prosecutors are persons who have been granted leave to be represented at the hearing. On 26 August 2004 the respondent declined to direct that certain documents be produced for inspection. The background to that decision is the proposal to take evidence at the hearing from Noel Phillip Cheney and Trevor M Roche.

2. Mr Cheney is a senior principal research scientist in the Forestry and Forest Products Division of the Commonwealth Scientific and Industrial Research Organisation. He prepared for the inquiry a report dated 29 September 2003 entitled "Origin and Development of the Bushfires that Spread into the ACT 8-18 January 2003". Mr Cheney has already given some evidence at the hearing in October 2003. On 8 June 2004 a further report by Mr Cheney entitled "Fuel Management in the ACT" was released, and on 9 June 2004 counsel for the prosecutors were provided with a list compiled by Mr Cheney of sources of information used in preparing his first report. In July 2004 Mr Cheney prepared a revised version of that report. The version in evidence is dated 2 July 2004. It was provided to the ACT Government Solicitor on 5 July 2004, although it may not have been received by the legal representatives of all the other prosecutors until early in the following week.

3. Mr Roche is a former chief officer of the Victorian Country Fire Authority. At the hearing, on 25 May 2004, senior counsel assisting the respondent tendered a document setting out the suggested structure of an "expert report" to be provided by Mr Roche. The report of Mr Roche was produced in mid-July 2004. It is addressed to the respondent, entitled "In the matter of the ACT Bushfires of January 2003" and dated 13 July 2004. It comprises 207 pages. Mr Roche's report was provided to the ACT Government Solicitor on 14 July 2004 and distributed to counsel for the other prosecutors in the next couple of days. On 22 July 2004 those counsel wrote to counsel assisting the respondent, requesting copies of the following documentation:

"· All letters of instruction and briefing documents given to Mr Roche.

· All draft reports (whether stored electronically or otherwise).

· All correspondence, including emails, passing between counsel and solicitors assisting the coroner and Mr Roche.

. All working notes and documents prepared by or used by Mr Roche.

· All of Mr Roche's notes of any telephone conversations, meetings or conferences with any person, including counsel and solicitors, where such conversations, meetings or conferences related to the preparation of the report.

· All notes, correspondence or documents brought into existence by counsel or solicitors assisting the coroner relating to any meetings with, or telephone conversations with, Mr Roche where they relate to the preparation of the report."

Counsel assisting the respondent replied that they would not provide the information requested. Accordingly, all the individual prosecutors in these proceedings (except apparently Michael Collins) requested the respondent to issue summonses requiring the Director of Public Prosecutions for the ACT ("DPP") and Mr Roche to produce the documents sought in counsel's letter of 22 July 2004.

4. The hearing resumed on 9 August 2004. (On this occasion Mr Collins was represented by the same senior counsel as two of the other prosecutors.) The respondent gave a series of directions agreed to by all counsel appearing, including counsel assisting her, in relation to the future conduct of the hearing. These included a revised timetable for taking evidence which postponed the cross-examination of Mr Roche to 5 October 2004. Counsel assisting were also directed to provide to the prosecutors, in the first place, within seven days a list of documents falling within the categories specified in the letter of 22 July 2004 and, secondly, by 23 August 2004 copies of such of those documents "as to which there is no objection".

5. The apparent harmony reflected in those agreed directions soon disappeared. On 16 August 2004 counsel assisting sent to the legal representatives of the prosecutors a list of documents "pursuant to the orders of [the respondent] made 9 August 2004". The list set out in thirteen items marked with an asterisk a description of those documents of which copies would be supplied. The list also described in a further 122 items documents that would not be made "available". The solicitors for several prosecutors immediately wrote to counsel assisting, requesting access to all the documents and asking that this question be determined in advance of the adjourned hearing date.

6. On 17 August 2004 counsel for the individual prosecutors wrote to counsel assisting, requesting production of the following documents:

"1. All letters of instruction and briefing documents provided to Mr NP Cheney;

2. All draft reports;

3. All correspondence including emails passing between Counsel Assisting, and those that instruct them, and Mr Cheney;

4. All working notes and documents prepared by or used by Mr Cheney, both as to the preparation of his various reports to the Coroner, and in relation to his assistance to the AFP, the DPP and Counsel Assisting;

5. All of Mr Cheney's notes of all telephone conversations, meetings or conferences with all persons, including Counsel and solicitors in relation to his assistance the Inquiry/Inquest and in relation to the preparation of his reports;

6. All notes, correspondence and documents brought into existence by Counsel and solicitors assisting the Coroner relating to all meetings and telephone conversations with Mr Cheney which relate to his assistance to the Inquiry/Inquest and in relation to the preparation of his reports."

The next day counsel assisting the respondent replied. They said that there were no letters of instructions or briefing documents provided to Mr Cheney. They also drew attention to the footnotes in Mr Cheney's report and to the list of sources furnished on 9 June 2004. Otherwise, counsel assisting said, the request for production was declined. The prosecutors were informed by the same letter that the respondent would sit on 25 August 2004 to deal with any application for production of additional documents.

7. A transcript of the hearing on 25 August 2004 is in evidence together with copies of the written outlines handed up by counsel for the prosecutors. Junior counsel appeared to assist the respondent. At no stage did he take any conventional ground of objection, such as legal professional privilege or public interest immunity, to the inspection of any specific document in the list provided. Nonetheless, the respondent required counsel for the prosecutors to "justify ... why these documents should be provided to you". At least so far as the documents relating to Mr Roche's report were concerned, this approach would seem to have involved a reconsideration of her "order" made on 9 August 2004. The prosecutors pursued slightly different courses in relation to Mr Cheney's report. Counsel for some of the prosecutors (including the ACT) confined their request to documents relating to the amendments made by Mr Cheney in discrete sections of his report. Counsel for other prosecutors pressed for production in the broader terms set out in counsel's letter of 17 August 2004. I shall not summarize the submissions made to the respondent. However, I will say that the outlines prepared by counsel for the prosecutors and the oral submissions made in amplification are models of clarity. The 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, to which I shall return. On the other hand, I am bound to say that the submissions made by junior counsel assisting were, on the whole, unhelpful and calculated to lead the respondent into error. At the end of his submissions, counsel for some prosecutors felt obliged formally to ask the respondent to issue a summons for the production of the documents sought.

8. The respondent gave reasons orally for her decision. (A transcript of those reasons is in evidence. It does not appear to have been submitted to the respondent for editing or correction.) The respondent began by referring to s 47(1) of the Act and to "her very wide discretion" in the conduct of the inquiry. She accepted that she was obliged to afford procedural fairness to the prosecutors, citing Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596, Maksimovich v Walsh (1985) 4 NSWLR 318 and Musumeci v Attorney General of NSW [2003] NSWCA 77; (2003) 57 NSWLR 193. The respondent then said:

"... for present purposes, procedural fairness requires that persons who have been granted leave to appear [or to] be represented in this inquiry [are] provided with copies and given access to evidence which is before the inquiry; that they be afforded the opportunity to test the evidence by examination or cross-examination of witnesses; that they be given the opportunity to bring to the notice of the coroner relevant evidence or material which may counter other evidence which is already before the inquiry, such as by bringing to notice other opinions or expert opinions, that they be afforded the opportunity at the end of the proceedings to make submissions and to reply to submissions made by counsel assisting and other counsel."

A little later, she continued:

"It appears to me that the nature of the requests made by counsel are more appropriate to civil litigation in a court of law than to a coronial inquiry unimpeded by the rules of evidence. For example, the request for access to voluminous documents gives every appearance of discovery and in many respects they seem to me to be a fishing expedition without any real substance."

The respondent distinguished Musumeci on the basis that in that case the coroner was in possession of the relevant evidence. She said that other authorities relied on by counsel for the prosecutors related to civil litigation and were "not directly relevant to coronial inquiries". The respondent said that she was left with the impression that counsel were "seeking to impugn the integrity of this coronial inquiry and ... of counsel assisting". Turning specifically to "the credit of Mr Cheney and Mr Roche", she said that these persons were appointed under s 59 of the Act and that counsel would have an opportunity to test their credibility through cross-examination. The respondent noted that both reports were extensively footnoted so as to provide an evidentiary trail to test their accuracy and veracity. Accordingly, she concluded:

"... I am satisfied that the requirements of procedural fairness and compliance with the relevant legislative provisions do not require me to exercise my discretion to direct that the documents and records sought by counsel in relation to Mr Cheney and Mr Roche's reports be produced ..."

9. Orders to show cause were granted by Gray J on 27 August 2004. His Honour directed that those orders be served on the DPP as "contradictor". The respondent has entered a submitting appearance in each matter. The DPP appeared on the return of the orders nisi. He explained that, whilst he is not represented or appearing for any other person in the hearing being conducted by the respondent, professional staff from his office are providing support to counsel assisting. The DPP sought leave to appear as amicus curiae in these proceedings. The prosecutors consented, and I granted that leave.

10. Grounds relied on by the prosecutors are identically stated in two of the proceedings as follows:

"1. The respondent erred in failing to ascertain and identify the content of the rules of procedural fairness applicable in the present case, and consequently, to apply the content of those rules.

2. The respondent erred in declining to have regard to principles relating to the production of documents in the case of expert witnesses in civil and criminal proceedings, such principles being applicable to the determination of the content of the rules of procedural fairness in this case.

3. In declining to direct production of the documents, the respondent failed to accord procedural fairness to the prosecutors in that:

(a) the prosecutors are and will be deprived of a proper and adequate opportunity to test the evidence of Messrs Roche and Cheney by cross-examination; and

(b) the prosecutors are and will be deprived of a proper and adequate opportunity to bring to the notice of the respondent relevant evidence of material which may counter other evidence already before the Inquiry, relating to the evidence of Messrs Roche and Cheney.

4. The respondent erred in holding that the requirements of procedural fairness did not include the provision to the prosecutors of documents that may assist in the determination of relevant questions of fact, namely the reliability of the opinions of Messrs Roche and Cheney,"

11. The prosecutors submit (as they did to the respondent) that instructive statements of the principles referred to in ground 2 reproduced in [10] above have been made in three Federal Court judgments. In Smith v Western Australia (2000) 98 FCR 359, Madgwick J said (at 360 [4]):

"The report was prepared pursuant to an order made by Lee J on 29 October 1998 and was filed on 1 April 1999. It is not in dispute that the applicants propose to tender it at a later date and to make Mr Waite available for cross-examination upon it. I have been invited to read it and have done so. Given the manifest relevance of the report itself, it is difficult to understand how the preparatory source materials would not also be relevant to the issues to be determined. "Relevant" in this context means relevant to legitimate forensic processes, a wider concept than the inquiry for other purposes of the law of evidence as to whether something is `relevant' to a fact in issue. In this case, I expect that issues will arise as to the reliability, including consistency, of evidence going, among other things, to the applicants' and their forebears' connection with the land in question. The source materials may well, indeed seem likely, to bear upon such matters. It appears to be "on the cards" that the documents will materially assist the defence, to adopt a phrase used by Gibbs CJ in Alister v The Queen (1984) 154 CLR 404 at 414 in a different context but one not lacking a degree of analogical force. It was suggested in the submissions prepared for Dr Waite that any notes that may have been taken in preparing the report cannot be attributed any significance (or even meaning) by any person other than the note taker. That is not of legal significance. While considerations of this sort may affect the utility of or the weight to be attributed to a particular note, if it were sought to be introduced into evidence, they cannot deny its relevance, in the sense mentioned. Further, as submitted by the respondents, it is not only those materials that Dr Waite eventually relied upon in writing his report that are relevant. The materials that Dr Waite chose to pass over in writing his report may be of equal, or indeed even greater, forensic relevance, than those that he chose to use. Therefore, the bulk of the source materials appear to be relevant."

In Scampi v Western Australia [2001] FCA 110, Beaumont ACJ said (at [21]):

"In the present case, one is left with the impression that Ms Glaskin has not fully appreciated the scope of guideline (ii), believing that, so far as fieldwork information is concerned, her obligation extended no further than disclosure of what she actually relied upon, without needing to disclose the existence of any other field information of which she took account in the process of reasoning towards her conclusion. This would include field information that she considered, but which (a) she did not specifically mention in the process of forming her opinion because, in her view, it merely corroborated other information which she had quoted, or otherwise directly referred to in the report; or (b) she rejected as unhelpful because, in her view, it was unreliable or irrelevant. In my opinion, guideline (ii) requires disclosure of both (a) and (b). The level of disclosure is governed by what is appropriate to enable a reader to arrive at a proper understanding of the approach taken by the expert to the field information, information which is fundamental to the formation of the expert opinion in this class of case. At the same time, the proportionalities of the task should not be lost sight of; prima facie, information in category (a) ought to lend itself to a more generalised treatment than material in category (b)."

And, in Australian Securities and Investments Commission v Southcorp Ltd [2003] FCA 804; (2003) 46 ACSR 438, Lindgren J said (at 441-442 [21]):

"I will apply the following principles which I did not understand to be in dispute:

(1) Ordinarily the confidential briefing or instructing by a prospective litigant's lawyers of an expert to provide a report of his or her opinion to be used in the anticipated litigation attracts client legal privilege: cf Wheeler v Le Marchant (1881) 17 Ch D 675; Trade Practices Commission v Sterling [1979] FCA 33; (1979) 36 FLR 244 at 246; Interchase Corp Ltd (in liq) v Grosvenor Hill (Qld) Pty Ltd (No 1) [1999] 1 Qd R 141 (Interchase) at 151 per Pincus JA, at 160 per Thomas J.

(2) Copies of documents, whether the originals are privileged or not, where the copies were made for the purpose of forming part of confidential communications between the client's lawyers and the expert witness, ordinarily attract the privilege: Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501; 141 ALR 545; 91 A Crim R 451 (Propend); Interchase, per Pincus JA; Spassked Pty Ltd v Cmr of Taxation (No 4) [2002] FCA 491; (2002) 50 ATR 70 at [17].

(3) Documents generated unilaterally by the expert witness, such as working notes, field notes, and the witness's own drafts of his or her report, do not attract privilege because they are not in the nature of, and would not expose, communications: cf Interchase at 161-2 per Thomas J.

(4) Ordinarily disclosure of the expert's report for the purpose of reliance on it in the litigation will result in an implied waiver of the privilege in respect of the brief or instructions or documents referred to in (1) and (2) above, at least if the appropriate inference to be drawn is that they were used in a way that could be said to influence the content of the report, because, in these circumstance, it would be unfair for the client to rely on the report without disclosure of the brief, instructions or documents: cf Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475 at 481; [1986] HCA 80; 69 ALR 31 at 34 per Gibbs CJ, CLR 487-8; ALR 38-9 per Mason and Brennan JJ, CLR 492-3, ALR 42-3 per Deane J, CLR 497-8, ALR 46-7 per Dawson J; Goldberg v Ng [1995] HCA 39; (1995) 185 CLR 83 at 98; [1995] HCA 39; 132 ALR 57 at 66 per Deane, Dawson and Gaudron JJ;CLR 109, ALR 75 per Toohey J; Instant Colour Pty Ltd v Canon Australia Pty Ltd [1995] FCA 870; BC9506842; Australian Competition and Consumer Commission v Lux Pty Ltd [2003] FCA 89; BC200300344 (ACCC v Lux) at [46].

(5) Similarly, privilege cannot be maintained in respect of documents used by an expert to form an opinion or write a report, regardless of how the expert came by the documents: Interchase at 148-50 per Pincus JA, at 161 per Thomas J.

(6) It may be difficult to establish at an early stage whether documents which were before an expert witness influenced the content of his or her report, in the absence of any reference to them in the report: cf Dingwall v Commonwealth of Australia [1992] FCA 627; (1992) 39 FCR 521; Tirango Nominees Pty Ltd v Dairy Vale Foods Ltd (No 2) (1998) 83 FCR 397 at 400; 156 ALR 364 at 366; ACCC v Lux at [46]."

12. Counsel for the prosecutors submitted that in the present case the application of those principles would require production of documents in the following classes:

"(a) Letters and memoranda to, or other forms of communication with, each expert concerning the matters which he was asked to consider when writing his report.

(b) Documents relied upon for the purpose of preparing the report, regardless of how the expert came by the documents.

(c) Material that each expert chose to pass over, when writing his report.

(d) Drafts of the Reports.

(e) Working notes and field notes taken by each expert in the course of preparing his Report."

(This submission was also made to the respondent.) It was further contended that the documents requested on 22 July 2004 and 17 August 2004 fell into those classes. I accept the first submission, but the further contention requires consideration by the respondent.

13. In my opinion, the fatal flaw in the respondent's approach was that she never reminded herself of the special features of expert evidence. She referred to s 47(1) of the Act, which provides:

"A coroner is not bound to observe the rules of procedure and evidence applicable to proceedings before a court of law."

This is not a warrant for ignoring the principles to which she was referred. They were principles designed to achieve fairness in cross-examination of experts, not rules of evidence. Indeed, the fact that the respondent is not bound to observe the rules of evidence is an important reason for a cross-examiner to be given generous access to any material available to or generated by the expert in connexion with his report. In ordinary civil litigation any factual underpinnings of an expert's opinion will have to be established by admissible evidence. In a proceeding where that it is not the case caution should be shown in refusing access to such material. Such a denial may be potentially productive of great injustice.

14. Nor may Musumeci be put aside in the way it was by the respondent. Of course, the material sought by the prosecutors has not been received in evidence at the hearing. But any document in the possession of counsel assisting is in every sense under the control of the respondent. More importantly, it is the coroner who decides who may give evidence at a hearing. It is scarcely conceivable that a coroner would wish to take evidence from an expert who would not make documents available to counsel assisting but, in such an eventuality, a summons can always be issued.

15. The DPP submitted that the concept of discovery was inapplicable to coronial proceedings. I agree. He submitted that what was required in the present case was a procedure analogous to the production of documents under a subpoena for production. I accept that submission also. (It may even be what the respondent had in mind by her "order" of 9 August 2004. The "list of documents" sounds like an order for discovery, but the purpose of the list appears to have been to facilitate the identification of those documents produced as to which there was an objection by counsel assisting to inspection.) The Federal Court cases relied on by the prosecutors should have been heeded by the respondent. They show the wide range of documents that may be requested in respect of an expert's report. The opinion of an expert is not to be tested in coronial proceedings in any different way to ordinary civil litigation. The object of cross-examination remains the same so long as the evidence is relevant. The DPP accepted, correctly, that documents in the classes identified by the prosecutors in items (a)-(e) reproduced in [12] above would satisfy the "legitimate forensic purpose" test upon a production in answer to such a summons for production.

16. The prosecutors have established, in my opinion, that the respondent failed to afford them procedural fairness. They are entitled to relief under s 34B of the Supreme Court Act 1933. I do not need to deal with the other grounds of review. However, the evidence before me shows that neither Mr Cheney nor Mr Roche was appointed as an investigator under s 59 of the Act. Nor did I see any material to suggest that anyone acting for the prosecutors had impugned the integrity of the inquest or inquiry or of counsel assisting the respondent. The view that the prosecutors were seeking discovery was just wrong, there being no parties to a coronial proceeding.

17. Attached to these reasons are minutes of the proposed orders submitted by the prosecutors and the DPP. I declined to make orders in such highly prescriptive terms. The orders proposed by the prosecutors admit of no evaluation by the respondent of material produced and impose a rigid timetable. Two of those orders extend to documents that were never the subject of any application to the respondent. The DPP has striven to propose orders that reflect an accommodation of the legal principles he felt bound to embrace. However, the scheme they reflect has never been considered by the respondent. She should have that opportunity. It is also possible that Mr Cheney or Mr Roche may want to be heard on the question of inspection.

18. The orders I have made prohibit the respondent from taking action in accordance with her decision of 26 August 2004. That decision was flawed and must be regarded as ineffective. With a display of goodwill and commonsense on the part of all counsel, the respondent should be able to proceed to take the evidence of Mr Cheney and Mr Roche in a way that affords procedural fairness to the prosecutors. There are, no doubt, a variety of ways that can be done in what must necessarily be a fluid situation. The principles accepted by the DPP should be borne in mind, but the making of orders in the terms sought would, in my view, be not just wrong but may have the capacity to be productive of endless debate about compliance.

I certify that the eighteen (18) preceding paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam

Associate:

Date: 17 September 2004

SC 566 of 2004

Counsel for the prosecutors: PA Walker

Instructing solicitors: Hill & Rummery

SC 567 of 2004

Counsel for the prosecutors: PA Johnson SC with PI Lakatos

Instructing solicitor: ACT Government Solicitor

SC 568 of 2004

Counsel for the prosecutors: GR Petty SC with IL Harvey

Instructing solicitors: Hill & Rummery

In all matters RC Refshauge SC, Director of Public Prosecutions for the ACT, by leave, as amicus curiae

Dates of hearing: 6 and 7 September 2004

Date of judgment: 10 September 2004

Reasons published (Sydney): 17 September 2004

PROSECUTORS' PROPOSED ORDERS

SC 566 of 2004

The Court:

1. Orders that the respondent be prohibited from further taking the evidence of Mr N P Cheney until documents (including those held in electronic form) of the following descriptions:

(a) All letters of instruction and briefing documents provided to Mr N P Cheney;

(b) All draft reports;

(d) All working notes and documents prepared or used by Mr Cheney in relation to his assistance to the AFP, the DPP and counsel assisting;

(e) All of Mr Cheney's notes of telephone conversations, meetings or conferences with all persons, including counsel assisting and solicitors assisting in connection with the preparation of the original and amended "Origin and Development Report"; and

(f) All notes, correspondence and documents brought into existence by counsel assisting and solicitors assisting relating to meetings and telephone conversations with Mr Cheney in connection with the preparation of the amended "Origin and Development Report".

are produced for inspection by the prosecutors and a reasonable opportunity (being a period of not less than 5 working days) has been afforded for such inspection.

2. Orders that the respondent be prohibited from taking the evidence of Mr T M Roche until documents as set out in the list produced under cover of the letter dated 16 August 2004 from counsel assisting, and such additional documents as should have appeared in that list in compliance with the respondent's direction of 9 August 2004 have been produced for inspection by the prosecutors and a reasonable opportunity (being a period of not less than 5 working days) has been afforded for such inspection.

3. Liberty to apply.

Note

The above proposed orders have been drawn by adapting the ACT's proposed orders in SC 567 of 2004.

PROSECUTORS' PROPOSED ORDERS

SC 567 of 2004

The Court:

1. Orders that the respondent be prohibited from further taking the evidence of Mr N P Cheney until documents of the following descriptions:

(a) All letters of instruction and briefing documents provided to Mr N P Cheney;

(b) All draft reports;

(d) All working notes and documents prepared or used by Mr Cheney in relation to his assistance to the AFP, the DPP and counsel assisting;

which relate to the two portions of the amended "Origin and Development Report" being first, the portion immediately following footnote 85 commencing with the words "In my opinion ... (at 30) and second, the portion under the heading "Prediction of Fire Speed during Extreme Weather" (at 54-57) are produced for inspection by the prosecutors and a reasonable opportunity (being a period of not less than 5 working days) has been afforded for such inspection.

3. Liberty to apply.

Notes

1. Proposed Order 1 flows from paragraph 1 in the Order Nisi. The description of documents in paragraphs (a) to (f) are drawn from the letter of 18 August 2004 from Messrs Craddock, Whybrow, Walker and Watts to counsel assisting.

2. Proposed Order 2 flows from paragraph 2 in the Order Nisi. The reference to "additional documents as should have appeared in that list..." has been included given the indication by the Director of Public Prosecutions to the Court on 6 September 2004 that there were further documents which should have been included in the list of 16 August 2004.

PROSECUTORS' PROPOSED ORDERS

SC 568 of 2004

The Court:

1. Orders that the respondent be prohibited from further taking the evidence of Mr N P Cheney until documents (including those in electronic form) of the following descriptions:

(a) All letters of instruction and briefing documents provided to Mr N P Cheney;

(b) All draft reports;

(d) All working notes and documents prepared or used by Mr Cheney in relation to his assistance to the AFP, the DPP and counsel assisting;

which relate to the Fuel Management in the ACT report of Mr N P Cheney and to all amendments to the "Origin and Development" report of Mr N P Cheney are produced for inspection by the prosecutors and a reasonable opportunity (being a period of not less than 5 working days) has been afforded for such inspection.

2. Liberty to apply.

PROPOSED ORDERS OF THE DIRECTOR OF PUBLIC PROSECUTION

SC 566 of 2004

SC 567 of 2004

SC 568 of 2004

1. Order that the respondent be prohibited from proceeding with the cross-examination of Phillip Cheney until she issues a summons or summonses requiring the production of all the Cheney documents as defined below which are in his possession, custody or power of Mr Cheney or counsel or the solicitors assisting the Coroner, other than:

(i) Those documents already made available to the prosecutors;

(ii) Documents referring to or comprising the list of sources headed "Sources of information used to compile maps of fire spread and report Origin and Development of the Bushfires that Spread into the ACT 8-18 January 2003" dated and provided to the parties on 9 June 2004,

and, on return of the summons, gives to the prosecutors access to all the documents produced save those which are subject to privilege from disclosure on the grounds of public interest immunity.

For the purposes of this Order, the "Cheney Documents" are documents in the following classes which relate to the two amendments to Mr Cheney's report bearing Coronial brief document number DPP.DPP.0008.0051 marked on the report and appearing, first, immediately following footnote 85 commencing with the words "In my opinion" and, second, under the heading "Prediction of fire spread during extreme weather" (hearafter referred to as the "Amendments"):

(a) Letters and memoranda to, or other forms of communication with, Mr Cheney concerning the matters which he was asked to consider when writing the amendments;

(b) Documents relied upon for the purpose of preparing the amendments, regardless of how Mr Cheney came by the documents;

(d) Drafts of the amendments; and

(e) Working notes and field notes taken by Mr Cheney in the course of preparing the amendments.

2. Order that the respondent be prohibited from proceeding with the examination and cross-examination of Trevor Roche until she issues a summons or summonses requiring the production of all the Roche documents as defined below which are in his possession, custody or power of Mr Roche or counsel or the solicitors assisting the Coroner, other than those documents already in the possession of the prosecutors and, on the return of the summons, gives to the prosecutors access to all the documents produced save those which are subject to privilege from disclosure on the grounds of public interest immunity.

For the purposes of this order, the "Roche Documents" means documents in the following classes which relate to the Report to the Coroner by Mr Roche bearing Coronial brief document number DPP.DPP.0009.0001:

(a) Letters and memoranda to, or other forms of communication with, Mr Roche concerning the matters which he was asked to consider when writing the amendments;

(b) Documents relied upon by Mr Roche for the purpose of preparing his report regardless of how Mr Roche came by the documents;

(d) Drafts of his report; and

(e) Working notes and field notes taken by Mr Roche in the course of preparing his report.

Authorities Cited2

Referred to (2)