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Supreme Court of the ACT |
Last Updated: 19 May 2009
HUMAN RIGHTS ACT
PETER LUCAS-SMITH & ORS v CORONER’S COURT OF THE AUSTRALIAN CAPITAL TERRITORY & ORS
[2009] ACTSC 40 (8 April 2009)
COURTS AND TRIBUNALS – “The Canberra firestorm” – bush fire coronial inquest – the issue for consideration by the inquest – ‘cause and origin of a fire that has destroyed or damaged property’ – adverse comments made by coroner against persons responsible for controlling and suppressing rural fires – application to have adverse comments made quashed – coroners obligation to afford procedural fairness – natural justice – attribution of blame – jurisdiction of the Supreme Court to quash adverse comments or order fresh inquiry – exclusion of consideration of the actions of the NSW authorities
CORONERS ACT 1997 (ACT) – ability of the Coroner to make adverse comments – s18 jurisdiction of the Coroner – whether the attribution of blame exceeds the authority of the Coroner – compliance with the legislation – form of notice under s 55 ‘notice of intended adverse comments’ – limitation of s 93 – ability of parties to respond to s 55 notice – the Coroner’s discretion to make comment on matters ‘connected with’ the fire – whether the comments made by the Coroner were open on the evidence
HUMAN RIGHTS ACT 2004 (ACT) – s 12(b) – right to vindicate reputation
JURISDICTION – jurisdiction of Coroner – whether the Coroner incorrectly define her jurisdiction – the Australian constitution – s 122– power to make laws having an extraterritorial effect – scope of inquiry – issue at inquest – inquiry need not be confined by ACT border – sufficient connection to the ACT – limited by relevance
EVIDENCE – appointment of consultant expert by the Coroner – witness testimony – ostensible bias – preference of the evidence of one particular witness not evidence of bias – whether a fair minded lay observer would reasonably apprehend bias
Coroners Act 1997 (ACT), ss 18, 47(1), 55, 59, 93
Legislation Act 2001 (ACT)
Australian Capital Territory (Self Government) Act 1988 (Cth), s 48A
Human Rights Act 2004 (ACT), s 12(b)
The Queen v Doogan ex parte Lucas-Smith & Ors [2005] ACTSC 74; (2006) 158 ACTR 1, sub nom Re Doogan; ex parte Lucas-Smith and others [2005] ACTSC 74; (2005) 193 FLR 239
Lamshed v Lake [1958] HCA 14; (1958) 99 CLR 132
Spratt v Hermes [1965] HCA 66; (1965) 114 CLR 226
Mahon v Air New Zealand Ltd and Ors [1984] AC 808; (1983) 50 ALR 193; [1984] 3 All ER 201
McGregor & Pearce v The Hon John Gallop and the Attorney-General of the ACT [2002] ACTSC 45
S v The Director of Public Prosecutions and Ors [2007] ACTSC 100
Moylan & Ors v The Nutrasweet Company & Ors [2000] NSWCA 337
Minister for Aboriginal Affairs and Anor v Peko-Wallsend Ltd & Ors [1986] HCA 40; (1986) 162 CLR 24
Re Refugee Review Tribunal; ex parte Aala [2000] HCA 57; (2000) 204 CLR 82
Australian Broadcasting Tribunal v Bond & Ors [1990] HCA 33; (1990) 170 CLR 321
R v Crabbe [1985] HCA 22; (1985) 156 CLR 464
No. SC 117 of 2007
Judge: Higgins CJ
Supreme Court of the ACT
Date: 8 April 2009
IN THE SUPREME COURT OF THE )
) No. SC 117 of 2007
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN: PETER LUCAS-SMITH
First Plaintiff
MIKE CASTLE
Second Plaintiff
RICHARD McRAE
Third Plaintiff
TONY GRAHAM
Fourth Plaintiff
AND: CORONER’S COURT OF THE AUSTRALIAN CAPITAL TERRITORY
First Defendant
STATE OF NEW SOUTH WALES
Second Defendant
DIRECTOR OF PUBLIC PROSECUTIONS (ACT)
Third Defendant
THE ATTORNEY-GENERAL FOR THE AUSTRALIAN CAPITAL TERRITORY
Intervener
ORDER
Judge: Higgins CJ
Date: 8 April 2009
Place: Canberra
THE COURT ORDERS THAT:
1. The plaintiffs’ applications, save as they relate to comment n.25 (Vol II pp 159-160), be dismissed.
1. This is an application on behalf of the abovementioned four plaintiffs to have certain adverse comments concerning them quashed. Those comments were contained in a report by Coroner Maria Doogan issued December 2006 being a report into an event described as “The Canberra Firestorm” focussing on four deaths and four fires occurring between 8 and 18 January 2003.
2. The adverse comments are all related to the activities of the plaintiffs as part of the team of persons whose responsibility it was to control or suppress rural fires in the Australian Capital Territory (ACT). The Coroner’s report comprises two volumes with 639 pages of text and footnotes plus an Appendix of 171 pages setting forth the responses of those persons, including the plaintiffs, subjected to adverse comment. Appendix B adds 32 pages of maps and photographs. A CD attached to the report exhibits not only the two volumes but also the transcripts of evidence and submissions.
3. Fortunately not all of this material is relevant for present purposes. Nevertheless, I have read and considered the material produced in the two volumes of the report. The written submissions of the plaintiffs in these proceedings cover some 173 pages.
4. It is enough to recite that on 8 January 2003, dry lightning strikes ignited four fires to the west of Canberra. These were designated, the Bendora fire, the Mount Gingera fire, the Stockyard Spur fire, each ignited within the Territory and McIntyres Hut fire, ignited in New South Wales (NSW). By 18 January these fires had coalesced within the ACT and burned into the urban area of Canberra including the suburbs of Chapman, Duffy, Weston and Kambah destroying 487 homes and 23 commercial or government premises. In addition four persons died, 435 persons were injured, 215 other premises damaged, Mt Stromlo Observatory was destroyed as well as fire damage to land. The net losses were estimated by the Coroner to have been close to $1b. The fires were finally extinguished on 2 February 2003.
5. The coronial inquest opened on 16 June 2003. Evidence was first presented on 7 October 2003. The subsequent course of the inquest is set out in Ch 3 of the report.
6. The first plaintiff was the Chief Fire Control Officer for the ACT. The plaintiffs’ submissions set out the role of each plaintiff as follows:
The four plaintiffs
7. Two of the witnesses, Messrs Cheney and Roche had been purportedly appointed by the Coroner as consultant experts. It is submitted by the plaintiffs that, by reason of the manner of their appointment and, as a matter of substance, their evidence, where critical of the plaintiffs should have been rejected.
8. Second, it is contended that the Coroner so confined her jurisdiction that evidence which would have ameliorated the Coroner’s adverse comments was excluded.
9. Third, the Coroner, it is submitted, set out to attribute blame, thereby exceeding her authority.
10. Fourth, the notices of intended adverse comments issued by the Coroner pursuant to s 55 of the Coroners Act 1997 (ACT) (Coroners Act) were insufficiently particularised. That is directed towards a conclusion that the Coroner denied natural justice to the plaintiffs and, for that reason, the relevant comments addressed by the notices should be quashed. Allied to that is a submission that no genuine consideration was given to the responses.
11. Fifth, the Coroner failed to have regard to evidence which may have ameliorated her comments. That evidence seems to relate to the efforts by NSW authorities to control, in particular, the McIntyres Hut fire, said to indicate that NSW authorities were no better (or worse) at fire suppression than ACT authorities, including, of course, the plaintiffs. That was a choice the Coroner made interpreting the judgment of the Full Court in The Queen v Coroner Maria Doogan; ex parte Peter Lucas-Smith & Ors [2005] ACTSC 74; (2006) 158 ACTR 1 (R v Doogan (No. 2)) to exclude consideration of and comment upon the efforts of NSW authorities to control the fires contributing directly or indirectly to the firestorm of 18 January 2003.
12. This was considered in R v Doogan (No. 2). That decision affirms the proposition that the “issue” in the inquest is the “cause and origin of a fire that has destroyed or damaged property”. “Property” is defined by the Legislation Act 2001 (ACT) as:
... any legal or equitable estate or interest (whether present or future, vested or contingent, or tangible or intangible) in real or personal property of any description (including money), and includes a thing in action.
13. Clearly, for the purposes of the Coroners Act, a fire is not capable of altering any legal or equitable interest in real or personal property. The concept refers to the narrower aspect of damage to tangible real or personal property. The rights of persons however, whilst not altered by damage by fire, will have the value of those rights diminished or destroyed.
14. Clearly, the inquiry is not limited to the immediate cause of the property damage. “Origin” as the Full Court decision makes clear, refers to the initial ignition of the conflagration ultimately spreading to damage the property in question. There may, of course, be more than one such ignition. Some may have been, as three of the initial ignitions were, in the ACT. Others, such as the McIntyres Hut fire, may have started in NSW or, in an extreme case, even further afield. Provided that fire resulting from the initial ignition(s) causally leads to damage to property in the Territory, the scope of the inquiry includes the cause and origin of each such ignition and the progress of it up until damage is suffered.
15. The jurisdiction of the Coroner is to “hold an inquiry into the cause and origin of a fire that has destroyed or damaged property ...” (s 18(1) Coroners Act).
16. The Full Court in R v Doogan (No. 2) considered the extent of that jurisdiction ([16] – [35]) and concluded that the range of matters falling within the scope of inquiry, whilst not open-ended, are those that could be considered relevant to determining the cause and origin of the fire causing the damage. Clearly, that includes the progress of the fire(s) and necessarily involves the efforts, if any, to suppress the fires. That the Coroner did in considerable detail. I would only differ from her assessment of her task by commenting that she did not need to confine her inquiry by reference to the ACT border.
17. All intervening or contributing events may be considered (see R v Doogan (No. 2) [20]).
18. The limiting factor is that of relevance to the issue of cause and origin of the fire process and progress.
19. An example of that limitation may be found in the evidence given by the plaintiffs of attempts to obtain government funding for the purposes of community education programs (plaintiffs’ submission [28]). Whilst the Coroner might well comment that lack of such programs contributed to the extent of fire damage, it would be inappropriate for the Coroner to enquire into the reasons for the Government or the Parliament declining funding for such programs.
20. It may be difficult in some instances to draw a line between relevant evidence and that which is too remote from the proper scope of the inquiry. At [26] in R v Doogan (No. 2) some examples of that difficulty are provided. It may also be necessary for a Coroner to receive evidence in order to determine if it is relevant to or falls in or out of the proper scope of the inquiry.
21. It is important to note the provisions of s 52(2) Coroners Act:
A coroner holding an inquiry must find, if possible –(a) the cause and origin of the fire or disaster; and
(b) the circumstances in which the fire or disaster happened.
22. Of relevance is s 52(4):
A coroner may comment on any matter connected with the death, fire or disaster including public health or safety or the administration of justice.
23. It is to be noted that while the Coroner must make findings (if possible) as to the matters referred to in s 52(2), he or she has a discretion whether or not to comment on matters “connected with” the fire.
24. It cannot be suggested that the Coroner’s comments were unconnected with the fires. The challenge is as to other matters. I will deal with those issues raised by the plaintiffs in the order referred to in their submissions.
GROUND 4 – The defendant erred by wrongly confining its jurisdiction to exclude an examination of the cause, origin and circumstances of the fire(s) which originated in NSW at or about the area known as McIntyres Hut.
25. I agree with that ground to the extent that, in my view, her Honour was not constrained as she stated in p 13 of the Report.
26. However, that error is, in my view, of no consequence for two reasons.
27. First, though the Coroner did not “formally” find the cause and origin of the fires that though they caused damage in the ACT, originated in NSW, she did recount in detail what happened in NSW, including the activities of the NSW Rural Fire Service.
28. She did not comment thereon but, as I have noted, she was not obliged to do so. Nor is it open to a person subject to an adverse comment to object that others might equally have been subject to criticism.
29. A good example of this is Mr Lucas-Smith’s response to an adverse comment then proposed to the effect that his belief that the fires could be controlled once they reached the grasslands between the mountains and the urban fringe of Canberra was erroneous. His answer was “there were many others who held the same view and this has not been mentioned”.
30. This betrays a logical fallacy. If the Coroner was able, as a matter of law, to comment adversely on Mr Lucas-Smith’s judgment, it is irrelevant that others might similarly be criticised.
31. Even accepting, as I do, that the Coroner was not precluded from including comments on the performance of the NSW Rural Fire Service, it is of no benefit to the plaintiffs that, had she chosen to do so, relevant officers of the NSW Rural Fire Service might have been similarly criticised.
32. I adopt and endorse the plaintiffs’ submissions that the ACT Parliament, if making a valid law pursuant to the power delegated to it by the Federal Parliament under s 122 of the Constitution, has power to make laws having an extraterritorial effect (see Lamshed v Lake [1958] HCA 14; (1958) 99 CLR 132 and Spratt v Hermes [1965] HCA 66; (1965) 114 CLR 226).
33. It is clear that the cause, origin and circumstances leading to a fire, originating in NSW, damaging property (or causing death) in the ACT is sufficiently connected with the “government of [the] Territory” to come within the power originating in s 122 of the Constitution and, indeed, to suppress the contrary effect of any State law by virtue of s 109 of the Constitution.
Jurisdiction to quash adverse comments
34. The third defendant submits that there is jurisdiction only to quash the entire inquest, not individual findings or comments. Reliance is placed on s 93 of the Coroners Act. That provides:
Supreme Court—power to quash, or order fresh, inquest or inquiry(1) If—
(a) an inquest into the cause of the death of a person, or an inquiry into the cause of a fire or disaster, has been held; and
(b) the Supreme Court, on an application made by or under the authority of the Attorney-General or by anyone else is satisfied that, because of fraud, rejection of evidence, irregularity of proceedings, insufficiency of inquiry, discovery of new facts or evidence or otherwise, it is necessary or desirable in the public interest or the interests of justice that the inquest or inquiry be quashed and that another inquest or inquiry be held;
the Supreme Court may order that the inquest or inquiry be quashed and another inquest or inquiry be held into the death, fire or disaster.
(2) If an application is made under subsection (1) by a person (other than the Attorney-General or someone acting under the Attorney-General’s authority), the application must be served on the Attorney-General.
(3) The Attorney-General may appear on the hearing of any application under subsection (1).
35. In my view, that section applies only to those extreme cases where the entire coronial process is tainted or has miscarried or, as anticipated in the section, new facts or evidence emerge requiring a new inquiry.
36. It does not preclude the relief here sought which is to quash adverse comments made by the Coroner. Indeed, it is only certain adverse comments that are the subject of complaint, not the inquest as a whole. It is difficult to imagine a more thorough inquiry than in fact occurred as the scope and content of the Report itself verifies.
37. To hold that s 93 confines the jurisdiction of this Court as submitted would be at odds with the decision in Mahon v Air New Zealand Ltd and Ors [1984] AC 808; (1983) 50 ALR 193; [1984] 3 All ER 201. It would also be inconsistent with the decision of Crispin J in McGregor & Pearce v The Hon John Gallop and the Attorney-General of the ACT [2002] ACTSC 45 (McGregor & Pearce v The Hon John Gallop). Of course, if the section ousted the general jurisdiction of the Court to grant relief of the kind there given and here sought, then, subject to whether s 48A of the Australian Capital Territory (Self Government) Act 1988 (Cth) might prevent that result, so be it.
38. I do not consider s 93 had, or was intended to have, such a consequence.
39. In S v The Director of Public Prosecutions and Ors [2007] ACTSC 100 (S v DPP), I was asked to quash certain adverse comments made by a Coroner. It was not disputed that, without quashing the entire inquest, some comments could be quashed. In that case, I proceeded to do so.
40. The scope of such an inquiry is, however, limited.
41. The scope of the power of the Court to quash adverse comments is helpfully explained in McGregor & Pearce v The Hon John Gallop.
42. It may be, as in that case, that a denial of procedural fairness will lead to a quashing of the adverse comment. It is not disputed that a Coroner is under an obligation to afford procedural fairness. It may also be that a comment is one not reasonably open on the evidence and so should be quashed.
43. In S v DPP, I acted upon that latter consideration to quash certain adverse comments.
44. I therefore reject the defendant’s contention that s 93 limits or excludes the exercise of that power. In any event to do so would, in my view, be inconsistent with the right, recognised in those authorities, to vindicate a reputation unfairly or unreasonably traduced (see s 12(b) Human Rights Act 2004 (ACT)).
45. I now turn to the specific grounds relied upon.
That the Coroner denied procedural fairness to the plaintiffs in making the adverse comments
46. It is not disputed that the Coroner complied with s 55 of the Coroners Act:
Adverse comment in findings or reports(1) A coroner must not include in a finding or report under this Act (including an annual report) a comment adverse to a person identifiable from the finding or report unless he or she has, making the finding or report, taken all reasonable steps to give to the person a copy of the proposed comment and a written notice advising the person that, within a specified period (being not more than 28 days and not less than 14 days after the date of the notice), the person may—
(a) make a submission to the coroner in relation to the proposed comment; or
(b) give to the coroner a written statement in relation to it.
(2) The coroner may extend, by not more than 28 days, the period of time specified in a notice under subsection (1).
(3) If the person so requests, the coroner must include in the report the statement given under subsection (1) (b) or a fair summary of it.
47. Although s 55(3) permits the publication of a “fair summary” of the response to the proposed adverse comment, the Coroner in fact reproduced each response in full in Appendix A to the Report.
48. I agree with the plaintiffs’ submission that this section, though an important safeguard of the right to procedural fairness, is not exhaustive of the right to procedural fairness. For example, had the plaintiffs been denied legal representation or the right to call or cross-examine witnesses or to tender relevant documentary evidence, a breach of procedural fairness might well have occurred, notwithstanding compliance with s 55.
49. There is no complaint of that kind made by the plaintiffs. Their complaint is that insufficient reference is made in the notice setting out the proposed adverse comments to enable the plaintiffs to meaningfully respond. However, it is apparent from the content of the responses that the plaintiffs clearly understood the adverse comments and the factual matrix underlying them.
50. It must be borne in mind that this Court does not have, nor should it exercise, any power to inhibit a Coroner’s power to comment.
51. Nor can it be accepted that the Coroner “ignored the submissions [of the plaintiffs] in their entirety”. The fact that she did not accept them fully, or even substantially, does not support such a contention. There was no obligation on the Coroner to accept any particular submission. The fact that she did desist from making one proposed comment, namely, that “Messrs Castle, Lucas-Smith, McRae and Graham were completely out of their depth at the time of the conflagration and the days leading up to it”, demonstrates that the Coroner did consider the s 55 responses, though, by and large, she did not adopt them.
52. There is the fact that the responses, which are detailed, do address the plaintiffs’ answers to the adverse comments. Any reader of the Report, including Appendix A, could make up his or her own mind whether they thought the Coroner’s comments were justified or not.
53. Nor is there any point to be made concerning the Coroner responding as she did to the plaintiffs’ complaints of lack of particulars in the s 55 notices. She was not bound by rules of evidence (see s 47(1) of the Coroners Act). She was obliged to give substantive fairness. There was however, nothing in the process followed which, it seems to me, violated that obligation. The plaintiffs had, before those notices issued, been represented at and received access to all relevant materials and submissions.
54. Some material, such as that provided by Mr Jeffrey and Sir Peter Lawler, whilst characterised by counsel for the plaintiffs as “evidence” were, in fact submissions. It is no valid criticism of the Coroner that she agreed with such representations. Counsel assisting had done as much in his submissions.
Adverse comment made without notice
55. The complaint made is that reference was made to a number of answers of witnesses including the plaintiffs that they “can’t recall” or “don’t remember”. This, the Coroner characterised as a “corporate loss of memory” (see Vol I, p 51).
56. That may be adverse but it is to my mind, if a little colourful, a perfectly fair comment. That it made more difficult the Coroner’s fact-finding task is self-evident. The Coroner did not, however, draw the inference, though in my view it would have been open to her to do so, that the loss of memory adverted to was a pretence.
57. I do not consider the comment carries any adverse implication other than, perhaps, lack of attention to the contemporary recording of important details.
58. I agree that it would not follow from any lack of independent recollection of details, given the stress of the times, that the answers given by the plaintiffs were in any way contrived or dishonest. The Coroner makes no such comment.
59. Another comment objected to on this basis was “They all knew the fires would burn into Canberra” (Vol II, p 159). This comment was the subject of a s 55 notice. The comment was further emphasised by the single line at p 160, “They knew”.
60. It was, as the Coroner assessed it, apparent that the risk of the fires burning into the urban interface was high and, as time progressed, getting higher. However, the evidence accepted by the Coroner would not warrant that conclusion as a statement of fact. It really amounts to saying “They should have known”. That comment was reasonably open to the Coroner and I suspect that was what she intended to convey. I would quash that comment in its present form for that reason. In truth it is qualified, as I believe it was intended to be by the reference, for example, (Vol II, p 166) that Emergency Services Bureau (ESB) personnel including the plaintiffs, had “lulled themselves into a false sense of security”.
61. I have already rejected the general submission that the Coroner ignored the s 55 responses. It is true that the Coroner does not give detailed reasons for declining to adopt the plaintiffs’ responses but she does, to my mind, respond, as the plaintiffs’ submissions concede, with some positive acknowledgements, for example, the acknowledgement that Mr Lucas-Smith had requested but been denied extra funding (Vol I, p 47). He had pointed out that this had exacerbated the difficulties the ESB faced.
62. It is not clear whether the plaintiffs merely object to the lack of reasons for making the adverse comments referred to in the s 55 notices or the decision not to act on the responses by withdrawing or further modifying the adverse comments.
63. As the Full Court stated in R v Doogan (No. 2) at [171]:
It is true that judicial officers have a duty to give reasons for their decisions, but the reasons need not be extensive, and in some cases little more may be required then a statement of the main conclusions on which the decision is based.
64. In the present case, the adverse comments notified were in the context of extensive recitations of the evidence which, for the most part, apparently warranted, though it did not compel, the adverse comments.
65. So far as the consideration of the responses is concerned, the original adverse comments are sufficiently explained so that little more, if anything, is required to explain the decision not to adopt those responses.
66. In contrast with Moylan & Ors v The Nutrasweet Company & Ors [2000] NSWCA 337 (Copper 7 case), the Coroner extensively analysed the evidence of all relevant witnesses. She may not have assessed that evidence as the plaintiffs would have wished but it was an assessment, in each case, that was open on the evidence though, as I have said, not compelled by it. In the Copper 7 case, the trial judge had not summarised and analysed the evidence of most of the relevant witnesses.
67. Save as I have indicated, this contention of the plaintiffs is rejected.
Ground 2 – The defendant exhibited ostensible bias in that a lay observer might apprehend that the defendant might not have brought an unbiased mind to the resolution of issues before making the adverse comments.
68. The Full Court in R v Doogan (No. 2) dealt with the question of ostensible bias. That previewed the present ground advanced, namely, that Messrs Cheney and Roche having been appointed, albeit not de jure, as experts to assist as investigators purportedly under s 59 of the Coroners Act, the Coroner conferred with them privately in the early stages of the inquest.
69. As the Full Court noted in R v Doogan (No. 2) at [86], the fact that the appointments did not satisfy s 59 did not support a finding of apprehended bias, particularly where, as in that case, the investigators had been appointed by the ACT Government which was a party to the inquest (as were a number of its employees or office holders) and the complaint of bias emanated from that alleged conflict of interest.
70. As at the stage reached when R v Doogan (No. 2) came before the Full Court, there were grounds for concern in relation to the private consultations between the Coroner and the investigators, as well as with counsel assisting. That was expressed in [100]:
... 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.
71. Nevertheless, counsel for the plaintiffs, though citing [100] did not cite [101]. That reads:
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 and comments are likely to be based upon any disputed evidence either of them may have given.
72. It is apparent that the Coroner was conscious of the need to justify cogently her acceptance of any opinions expressed Messrs Cheney and Roche. Many of their observations, as the Coroner noted, were accepted expressly or implicitly by one or other of the plaintiffs. It was essentially a matter for the Coroner whether to accept those opinions, where disputed, or to reject or modify them. She was quite conscientious in revealing and exposing to all interested parties, their reports and evidence, which, of course, were all subjected to cross-examination.
73. It is also apparent that there is some confusion between “the firestorm” and fire reaching the suburban interface. I have already noted that it should not be assumed that the plaintiffs had, before the event, been aware that the former consequence would follow. Nor could Mr Cheney’s “prediction” be equated with that. Rather, his warning was of fire impacting on the urban interface, not a “firestorm”.
74. It is true that the Coroner does not recite in detail criticisms of Messrs Cheney and Roche levelled by counsel for other parties but the Coroner, as the third defendant submits, is not obliged to deal with every detail. It is certainly my impression from reading the report and the responses of the plaintiffs that little, if any, contest, save for comment, existed concerning the opinions of Messrs Cheney and Roche.
75. I accept the submission of the third defendant, and the plaintiffs do not dispute it, that it is not the role of this Court to review the merits of the Coroner’s conclusions (see Minister for Aboriginal Affairs and Anor v Peko-Wallsend Ltd & Ors [1986] HCA 40; (1986) 162 CLR 24).
76. I appreciate that is not how the plaintiffs seek to attack the Coroner’s findings and comments.
77. They suggest bias is exhibited by the Coroner’s acceptance of the witnesses, Messrs Cheney and Roche, rather than others, or her adoption their opinions, even if not contradicted by evidence, where challenged on behalf of the plaintiffs. Merely to state that proposition indicates that, particularly in the case of a coronial inquest not determining rights or offering any binding opinion, bias is not to be apprehended merely because the Coroner accepts or prefers the testimony of witnesses another judicial officer might not accept or prefer.
78. The criticisms of Messrs Cheney and Roche made on behalf of the plaintiffs, though cogent, were not so compelling as to enable it to be concluded that the Coroner could only have accepted their evidence, where disputed, if she was biased against the plaintiffs.
79. In general, I agree with the third defendant’s responses to the criticism by the plaintiffs of the Coroner’s treatment of Messrs Cheney and Roche’s evidence. I do not consider that a fair-minded lay observer would reasonably apprehend bias on the part of the Coroner, irrespective of whether that observer might agree or not with her adverse comments so far as they were based on that evidence. By and large, they were not so based, as the third defendant’s response to Annexure B to the plaintiffs’ submissions clearly indicates.
80. I do not accept this ground.
81. These grounds allege that the Coroner exceeded her jurisdiction in relation to the relevant fires and deaths and (correlatively) that she wrongly confined the scope of her enquiry by not including an inquiry into, or commenting upon, the cause, origin and circumstances of the New South Wales fire or fires which commenced at McIntyres Hut.
82. As to the former ground, it is apparent, as I have indicated, that whilst the Coroner’s jurisdiction to inquire concerns those fires causing damage (or deaths) in the ACT, the cause or origin of a major component of those fires, as a matter of fact, extended back into NSW. It was therefore open to the coroner, contrary to some extent to her professed self-denying ordinance, so to enquire. I say to some extent, because it is clear from the report that the Coroner did enquire into and make findings concerning the cause and origin of the NSW fire that ultimately burned into the ACT. She recounted in detail what was done and not done. She relied in part on an enquiry in NSW relevant to those fires. She did not comment adversely on NSW fire-fighting arrangements or efforts. Indeed, though in my view, she could have so commented, she might reasonably have considered that comity with a NSW coronial inquest would justify restraint from doing so, particularly if it differed or might differ from the coronial inquest report in NSW.
83. In my view, whilst it was open to her to have done so, that was a discretionary decision, even if she erroneously regarded it as mandatory not to do so. It is no error of which the plaintiffs can complain that the Coroner failed to criticise others of whom similar complaint might have been made but was not. It is the converse of the stricture enunciated by Hayne J in Re Refugee Review Tribunal and Anor; ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at [163].
84. To refrain from exercising a power is not the same as exercising a power beyond jurisdiction. Nor is there any sense or logic in the proposition that had NSW authorities been subjected to, or been liable to be subjected to, similar criticisms of their performance and capacities as was made of the plaintiffs that those criticisms of the plaintiffs would not have been made or, if made, would not be justified.
85. Such a proposition needs only to be stated for it to be apparent that it is without substance.
86. Ground 3 and 4 are therefore rejected.
Ground 5: The Adverse Comments Were Not Reasonably Open on the Evidence
87. This alleges that the Coroner’s adverse comments were not reasonably open on the evidence.
88. I held in S v DPP that, if made out, such an objection could lead to the quashing of an adverse comment.
89. I have already held that one such comment was not reasonably open, and, indeed, contradicted the findings and comments thereon otherwise made.
90. However, the power to quash comments made is clearly a limited one.
91. I accept as relevant the approach of Mason CJ in Australian Broadcasting Tribunal v Bond and Ors [1990] HCA 33; (1990) 170 CLR 321 at [356].
92. The comments his Honour made clearly indicate that a power to comment in the course of a report should not be constrained by a failure on the part of the commentator to make the more logical, restrained or, even, fairer comment. It will not be an error of law to make a comment if there is some evidence on which it might reasonably be based.
93. A good example is the comment that the plaintiffs failed to appreciate the gravity of the fire threat earlier than they did. Both Mr Graham and Mr McRae conceded that they had so failed. It could hardly be a criticism of the Coroner that she accepted that concession.
94. The next example relates to adequacy or otherwise of preparations in 2002 to the 2002-2003 bushfire season.
95. That clearly is or was a “circumstance” surrounding the 2003 fires. So much was not in contention.
96. There had been concerns expressed, not only in the report of Mr Howard McBeth of 29 September 1994 but by Mr McRae himself in February 2002 following serious fire activity in 2001. The preparations recommended by those reports had, by January 2003, not yet been made, though planning for them had been undertaken.
Yet, despite this knowledge and awareness, the evidence before this inquiry reveals that senior ESB personnel lacked a full appreciation of the gravity of the fire situation and the potential for major escalation from the time the fires ignited on 8 January 2003. Further, despite having been put on notice by the fires some 12 months previously - apart from Mr Bartlett’s preparations on the part of the ACT Forests - in essence, neither the Emergency Services Bureau nor any of the ACT land management agencies made any meaningful preparations additional to their routine work. Even though the need for a rapid and aggressive response was recognised, the response made to all the ACT fires in January 2003 lacked the sense of urgency the situation demanded.
97. It was clearly open to the Coroner to conclude that the planning and preparations previously recommended should have been completed earlier.
98. Of course, there may have been good reasons for not doing so, for example, lack of resources provided by Government, but that does not mean that the adverse comment was not open on the evidence.
99. Thus adverse comment n.1 was open on the evidence.
The role of Operations Officer should have been assigned to the person who was second only to Mr Lucas-Smith in experience and had the greatest expertise in fighting and managing fires in remote areas. With all due respect to him, Mr Graham was not this person. He was, by all accounts, a dedicated and competent administrator in his day-to-day role, but what was required of him on and after 8 January was beyond his normal functions and responsibilities.
100. It was a virtually an uncontestable fact that Mr Graham did not possess the qualifications and experience to fill in for Mr Lucas-Smith. It may be that some thought he did. It was open so to conclude or to disagree with that conclusion. Hence it could not be said that the adverse comment was not open.
101. That is, it must be said, not a condemnation of Mr Graham, rather it asserts that he should not have been placed where he was, when he was, when the fires threatened the ACT in January 2003.
102. Indeed, Mr Graham himself acknowledged as much.
Although Mr Graham might have believed he had sufficient training in the concepts and practices of incident management, he did not, in my view, have the experience in and knowledge of fire behaviour and fire-suppression tactics that were needed to satisfy the requirements of the position of Operations Officer from the start of the fires. Mr Graham did not accept this, but it is a fact. Mr Graham took the position of Manager Operations with the Emergency Services Bureau in mid-1997. Before that, he worked in the ACT Department of Urban Services, being involved with management systems and the Department of Defence, in staff development. Before having these positions, Mr Graham had a career history that saw him predominantly in the Royal Australian Navy, for 21 years, most of which was spent in the field of catering. During his time in the Navy his firefighting experience had been limited to the occasional grass fire near a naval shore establishment. Mr Graham had some limited experience as a volunteer firefighter and had received a little bushfire training; he had acted as an incident controller on two or three occasions. He had never actually fought a fire by holding a hose or using a rake- hoe, and he had no training in fire behaviour. Combined, these factors made him inexperienced and unqualified and unsuitable for the position he held as Operations Officer of the service management team form 8 January 2003 onwards.
103. Comment n.3 repeats the same or similar criticism of Mr Graham’s experience, expertise and performance. It, equally, was open on the evidence.
This approach differs from the one adopted by Mr Graham, who did not appear to recognise the urgency of the situation and the need for a maximum and sustained response involving appropriate personnel and heavy machinery. Mr Graham did not understand the significance of the typical five- to seven- day summer weather pattern referred to by many other witnesses, and he was incorrect when he asserted in his statement that night-time operations are usually conducted once strategies have changed from direct to indirect attack.
104. This refers to criticism by Messrs Bartlett and Sayer of Mr Graham. That the Coroner accepted their views and opinions in preference to those of Mr Graham was a course clearly open to her on the evidence.
The evidence was that, generally, the best opportunity to control a fire arises on the first night because that is when the fire is at its most benign and the control almost invariably involves direct attack. On his evidence and in his actions, Mr Graham appeared not to have respected this principle, which is probably one of the most fundamental of bushfire fighting. It was not a question of being short of resources: it was a question of not appreciating the need to deploy those resources in the first 24 to 48 hours and the consequences of not controlling the fires quickly, given the extreme drought and the dire weather forecast.On the evidence before this inquiry, I am satisfied that Mr Graham’s lack of experience in fire behaviour and suppression was a significant contributor to the poor decisions made on the first night of the fires and the following morning.
105. This related specifically to the decision to withdraw from the fire at Bendora on 8 January 2003. Ms Arman was the field controller. She made the decision. She was not otherwise instructed by Mr Graham, who had the superior authority, though she consulted him about the situation. There was opinion from qualified experts that that decision was not the preferable one. Even Mr Graham conceded that at T2722.
106. There is, therefore, no ground to set aside that comment as being unsupportable on the evidence.
107. A similar comment could be made about the Mt Gingera fire.
108. Those examples suffice to offer reasonable support for the general criticism offered by the Coroner of Mr Graham’s lack of adherence to basic fire-fighting principles. Again, that is not the only conclusion that might have been drawn and it may have been, and probably was the case that Mr Graham did his best, that does not, however, mean that the stated comment lacks any rational support from the evidence.
I have concluded from the evidence that:The failure to recognise Mr Graham’s limitations in skills and experience was a serious error of judgment on the part of Mr Lucas-Smith, especially when he had available two very experienced officers – Mr Bartlett and Mr Sayer. This error of judgment resulted in an inadequate initial response to the fires and was a factor allowing all the ACT fires to expand and ultimately become uncontrollable, leading to the devastation that occurred on 18 January 2003.
109. This comment suggests that the appointment of Mr Graham was an error of judgment on the part of Mr Lucas-Smith.
110. Clearly whether or not it was an “error of judgment” is a matter on which minds might differ. Further, it is a judgment which can only be made in hindsight. It is not suggested that Mr Lucas-Smith appointed Mr Graham in the belief that he was not up to the task.
111. That his performance was not adequate again can only validly be viewed in hindsight.
112. It is a comment on facts not themselves in dispute. It was open to the Coroner to make it if she chose.
Mr Graham displayed a lack of judgement by failing to recognise the limitations of his skills and experience in dealing with major fire events. As a consequence, he failed to call on and deploy all the resources that were available to him and he failed to seek advice.
113. This refers to Mr Graham failing to recognise the limits upon his skills and experience and consequential failure to marshal all available resources.
114. Mr Graham himself recognised that others with more experience identified risks and concerns that he did not identify (see T2725-6).
115. It was open to the Coroner to conclude that Mr Bartlett, one of those others, offered timely assistance but that assistance was not accepted.
116. It is not the case, nor so represented, that Mr Graham accepted that he was not, even so, adequately equipped for his role, but it was open to the Coroner to take a different view.
The fact that the Emergency Services Bureau adopted a system of incident management that was not in accordance with the recognised AIIMS Incident Control System caused confusion among incident controllers in the field and inhibited the transfer of important information to them. The field incident controllers are commended for their efforts, which were made with what appears to have been limited support from the service management team.
117. The adoption by the Emergency Services Bureau of a system of incident management not in accordance with the AIIMS Incident Control System was criticised as causing confusion among incident controllers in the field inhibiting the transfer of important information.
118. There was no doubt that the locally adopted system departed from the AIIMS Incident Control System. Mr McRae conceded that and, indeed, supported that departure.
119. The criticism relies on the two consequential effects. Namely, confusion in the field and inhibition upon the transfer of important information.
120. At T3078-9, Mr McRae agreed that “in hindsight” the people in the field did not properly understand the structure and that “training and exercise” needed improvement.
121. As counsel for the third defendant noted there was undoubted confusion as to responsibility for decision making between Ms Arman and Mr Graham over the question of remaining or withdrawing from the Bendora fire on 8 January. Mr Hayes was uncertain as to his authority to require provision of additional resources for the same fire on 9 January 2003.
122. Further, Mr Bartlett directly commented in his evidence on the difficulties experienced in obtaining and transferring information from shift to shift. Mr McRae himself referred to communication difficulties between himself and incident controllers in the field.
123. It is true that he attributed this difficult situation to the location of radio facilities and of the planning section at the headquarters at Curtin. However, that does not make the comment unfair or unsupported by evidence.
124. Mr Graham agreed in his evidence that incident controllers had technical responsibility for their operations but did not have sufficient planning and other support.
125. The objection that the comment lacks specificity in light of the evidence, cross-examination thereon and submissions of counsel assisting, is not sustainable. As I have noted, it is clear that the relevant plaintiffs understood the comment.
126. It was reasonably open on the evidence before her for the Coroner to make this comment.
The way the decision to withdraw from the fire was made was flawed. Ms Arman relied on Mr Graham and took his words to the effect of ‘we were hoping you would do that [that is, withdraw]’ as meaning the service management team supported the decision. The decision to withdraw should have been subjected to greater scrutiny by Mr Graham in the first instance. By the time Mr Lucas-Smith knew of the decision it was too late to reverse it....
Ms Arman was seeking guidance from headquarters but received none.
(Vol II, p 36)
Mr Graham failed to make proper enquiries of Ms Arman before agreeing with her suggestion that she withdraw her crews overnight.
127. This comment suggests that the decision made by Ms Arman to withdraw from the Bendora fire, referred to above, was “flawed”. It should have been subject to guidance from Mr Graham but was not.
128. That it was not, and that Mr Graham left it to Ms Arman to make the decision is, and was, undisputed.
129. Whether it was a right or wrong decision is a matter of opinion. Certainly some qualified persons regarded it as inappropriate. There were, as the evidence revealed, occupational health and safety issues concerning fire fighting in the field at night.
130. It was open to the Coroner to prefer the view that the decision was flawed and made without proper guidance or inquiry.
At about 5.30 pm on 15 January Constable Jason Byrnes of the Australian Federal Police telephoned the Emergency Services Bureau and spoke with Mr Graham about whether the police needed to be involved in traffic operations because a back-burn that was planned on the Brindabella Road. In that conversation Constable Byrnes said to Mr Graham, ‘Obviously our bosses are a little bit concerned now. They’re sort of worried that Canberra is gonna burn.’ Mr Graham replied, ‘Yeah, well it’s not beyond possibility on Saturday or Monday.’When questioned about his remarks, Mr Graham said he was not referring to the fires burning in the city; rather, he had in mind the areas towards and up to the city. This does not make sense. If Mr Graham was thinking of Canberra in terms of the wider area outside the city, a large part of that area was already burning and had been burning for the preceding eight days. He was present at the planning meeting, which had probably just finished, and had heard Mr McRae’s predictions. He heard Mr Mason report earlier in the day on the weather forecast for the period until Monday 20 January – high temperatures and north and north-west winds. Mr Graham might well have thought, as he said, and hoped, that the fires would be contained in the grasslands, but I do not accept that he was referring only to the non-urban area in his conversation with Constable Byrnes.
131. This was a comment upon a conversation between Sergeant Jason Byrnes of the Australian Federal Police and Mr Graham.
132. The Coroner comments that the conversation suggested that, following 15 January 2003, on the Saturday (18th) or Monday (20th), Canberra might “burn”.
133. Mr Graham said he did not intend to convey such an impression. The words used, as the Coroner comments, do clearly convey that impression. It is not inconsistent with a belief that the fires would be contained before reaching the urban interface but it did acknowledge a real risk (possibility) of such an adverse consequence.
134. It was clearly open to the Coroner to reject Mr Graham’s interpretation of his comment and prefer the more obvious construction of it.
By late afternoon on 15 January 2003 senior personnel of the Emergency Services Bureau were in receipt of information that either confirmed or was the basis on which they formed certain views about the risks of the fires.(Vol II, p 56)
I am satisfied that:
By late afternoon on 15 January 2003 Mr Castle, Mr Lucas-Smith, Mr McRae and Mr Graham each recognised that the fires – including the McIntyres Hut fire presented a serious risk to Canberra and to rural settlements west of the urban area.
Mr Castle, Mr Lucas-Smith, Mr McRae and Mr Graham each acknowledged the risk to the urban area if certain conditions prevailed, but Mr McRae considered that Monday 20 January 2003 was the probable day of impact.
135. Mr Cheney gave evidence that on 13 January 2003 he had expressed the view that the fires, particularly the McIntyre’s Hut fire represented a “serious risk” to the urban area of Canberra.
136. It undoubtedly did and was. Mr Lucas-Smith was said by Mr Cheney to have agreed with that opinion both for himself and his group (“that’s our opinion too”). Mr Lucas-Smith did not disagree with that evidence. His notes supported it.
137. Mr Koperberg, Commissioner of the NSW Rural Fire Service (NSW RFS) had given evidence that on 15 January 2003 he had referred, in briefing Mr Lucas-Smith, to his view that the western suburbs of Canberra were at serious risk if weather conditions were as then predicted.
138. Mr Jeffery recounted a conversation with Mr Lucas-Smith on either 15 or 16 January 2003 to much the same effect.
139. It was clearly open to the Coroner to accept the recollections of Mr Cheney and Mr Koperberg as warranting the comment made.
Comment n.12: (Vol II, pp 60 – 61)
Mr Castle also had difficulty recollecting many details of the Cabinet briefing – even when they related to the items listed in the briefing note he had prepared. His evidence on some matters was inconsistent, vague and confusing.[Here follows a discussion of Mr Castle’s evidence on this point that was not previously disclosed. In this discussion there is no reference to the matters raised in the s 55 response only the original submission].
The comment continues:
I do not accept this submission. It is contrary to common sense and contrary to the evidence. I am willing to accept that concern over the impact of the fires on Canberra’s power supply might well have been one matter in Mr Castle’s mind during the briefing of Cabinet. But I do not accept that it was the only, or even the predominant, matter. He made no reference to it in his briefing paper and gave evidence that his recollection, such as it was, of the discussion about declaring a state of emergency centred around the process involved.
140. This criticises Mr Castle’s evidence, particularly the quality of his recollection. His response complains that he had not had the opportunity before giving his evidence to refresh his memory from a video of the cabinet briefing in question.
141. That, of course, is a fair point. His submission is, however, set out in full in Appendix A. The comment does not suggest that Mr Castle was dishonest. The Coroner does accept the concern, that Mr Castle had a recollection of experiencing.
142. However, that does not render invalid the Coroner’s characterisation of the quality of Mr Castle’s evidence, whether it was lacking in quality for good reason or not. It was clearly open to the Coroner so to characterise the objective quality of Mr Castle’s evidence.
143. Further, it was open to the Coroner to conclude that matters other than loss of electrical power supply were seen as serious risks to the city of Canberra. Her Honour set out in detail the recollections of various witnesses as to the content of the briefing which supported that view.
144. Indeed, under cross-examination, Mr Castle conceded that the notes of the briefing confirmed that conclusion, although he had no precise recollection of it.
145. As counsel for the third defendant noted, Mr Stanhope, Chief Minister, had a recollection that, in addition to power supply concerns:
There was general comment about the possibility of the fires reaching urban Canberra.
146. It may be a harsh comment on Mr Castle’s evidence that the Coroner made, but it comprises an opinion concerning, or characterisation of, matters of fact, relevant to the ultimate issue, the cause and origin of the fires causing property damage and the deaths of four persons and the circumstances surrounding that issue. It was a comment open to the Coroner.
I am satisfied that:On 16 January 2003 Mr Lucas-Smith briefed members of the ACT Fire Brigade and the ACT Ambulance Service about the serious possibility that the fires would break their containment lines and reach urban areas sometime on Saturday 18 January or Monday 20 January.
Mr Lucas-Smith told the people who attended the briefing on 16 January that the information he was providing to them about the serious risk of the fires reaching the suburbs was not to “leave the room”. This remark was not said in jest.
Mr Lucas-Smith said the reason for keeping the information from the media was to avoid alarming the media and the public.
147. The objection to the first part of this comment, that is, that there was a “serious” possibility of fires breaking their containment lines seems to me to be merely semantic.
148. Mr Lucas-Smith conceded that the threat to the urban area was “potentially serious”. Some witnesses recalled a “strong possibility” being the description given.
149. It was certainly open to the Coroner to conclude that, in whatever words, Mr Lucas-Smith had conveyed the meaning the Coroner found to have been conveyed.
150. There is also exception taken to the finding that Mr Lucas-Smith had stated that his comment was “not to leave the room”.
151. It was, firstly, open to the Coroner to find that the content of the briefing referred to was contrary to, or inconsistent with, the view Mr Lucas-Smith expressed at the press conference of 16 January 2003 which followed.
152. A contemporaneous note by Mr Cartwright, an ACT Fire Brigade member, records the comment by Mr Lucas-Smith which the Coroner found to have been made. Mr Lucas-Smith did not deny making the comment, though he did not recall it. He suggested it may have been spoken in jest or banter.
153. Several fire brigade officers recalled similar comments by Mr Lucas-Smith. The Fire Commissioner, Mr Ian Bennett, who also recalled the comment, noted it was in the context of not creating alarm or panic in the public and seemed to be a “tension breaker”.
154. Suffice to say it was clearly open to the Coroner to find that Mr Lucas-Smith made the comment referred to. It was also open to her to conclude that he was instructing those present not to reveal the level of concern about the potential for the fires reaching the urban interface that there in fact was. In that sense, it was certainly open to conclude that, though not an instruction, Mr Lucas-Smith’s comment was not a joke or mere banter.
155. Further, the reported comment is supported by the comment in the media briefing – “I don’t think that there’s any threat to the urban areas” which is not consistent with the content of the previous and subsequent briefing given by Mr Lucas-Smith to personnel.
156. It is not open to suggest that Mr Lucas-Smith believed the fires would burn into the urban areas but he was aware, contrary to the media briefing, that there was a serious risk of that occurring.
157. It was open to the Coroner to conclude that, even if out of a desire not to cause panic in the public, Mr Lucas-Smith made a less than frank disclosure to the media at the briefing on 16 January 2003.
On the evidence, I have concluded that:At a briefing on 16 January 2003 Mr Lucas-Smith and Mr Castle did not inform Chief Police Officer Murray and Commander Newton that there was a serious risk of fire reaching the Canberra suburbs on Saturday 18 January or Monday 20 January 2003.
This was a grave omission: it exacerbated the confusion and chaos that subsequently occurred during the evacuation of residents fleeing the fires.
158. The essence of this criticism is that, as with the media, Mr Lucas-Smith failed to give a full and frank briefing to Chief Police Officer Murray and Commander Newton so as to enable them more effectively to provide a police response on 18 January to the firestorm which struck the western urban interface.
159. Was it open to conclude that the briefing was inadequate? If it was then the criticism is self-evidently open.
160. Mr Lucas-Smith effectively did not deny that he failed to brief police commanding officers as alleged. His explanation to the Coroner was that he did not believe that there was a “serious risk” of such an outcome.
161. However, as noted already, the briefing to Cabinet and to fire fighting personnel was in terms of a “possibility” of such an outcome which could not be regarded reasonably as otherwise than a “serious risk”.
162. It was clearly open to the Coroner to make this comment.
Whatever he may or may not have recalled saying and in whatever terms, I am persuaded that Mr Lucas-Smith did express his opinion that the fires would escape from the mountains if the forecast bad weather did eventuate.
163. This comment is merely a statement consistent with the briefings given to Cabinet and fire fighters by Mr Lucas-Smith. It was open to the Coroner to find it was made also to Mr Jeffery.
164. It is true, of course, that the outcome was not inevitable. Nor is it open to conclude that Mr Lucas-Smith believed it to be. Favourable weather would likely avoid the outcome. Unfavourable weather increased the risk, though not to the point of inevitability.
165. Mr Jeffery’s email of 16 January 2003 was evidence upon which this comment could reasonably have been based.
It is inconceivable that a person in Mr Lucas-Smith’s position charged with his responsibility would ignore and choose not to comment publicly on the activity of the largest fire in the region and the one that, only hours before, was being cited at various briefings as posing a serious risk to the ACT. If he did not have the most up to date information on this fire, one must ask why. Simply because the interviewer did not ask a direct question about the McIntyres Hut fire in no way prevented Mr Lucas-Smith from commenting on it: in fact, to fail to do so was to provide incomplete and misleading information about the real situation with the fires and the potential threat.
166. This comment reflects an opinion about the apparently less than frank briefing the Coroner was entitled to find Mr Lucas-Smith had given to the media.
167. Undoubtedly, it was a judgment call Mr Lucas-Smith may have considered appropriate but the Coroner was entitled to come to a different opinion.
168. So, also was it open to the Coroner to take the view that Mr Lucas-Smith was not bound by any “protocol” as I have found the Coroner was not to comment on fires and the steps taken to suppress them in New South Wales.
But how could Mr McRae claim to know what the community was being told if he had no input, did not see the final product, and did not monitor what was being put out? All this activity was part of his role.It appears, on the basis of his actions, that Mr McRae displayed extremely poor judgment. Although he recognised it was important to warn the Fire Brigade and the Ambulance Service to prepare for fire damage to houses and injuries to people in the suburbs, he did not consider that it was the right time to activate his final ‘trigger’, to warn the community of the impending danger.
169. The issue to which this comment related was that of warnings of impending fire danger, that is, whether more timely warning could have avoided some of the damage which occurred.
170. Mr McRae was the officer in charge of giving or not information to the public. It is the case that, as at 16 January 2003, the expectation of fire impact was for Monday, 20 January 2003. His explanation for not earlier activating warnings to the community was exposed in his evidence. He made the judgment that no general warning would be given and that he would wait till the specific communities likely to be affected were identified.
171. It was open to the Coroner to comment on this evidence as she did.
Comment n.18: (Vol II, pp 89 – 90)
An examination of the evidence reveals a stark discrepancy between the information that was known to and discussed by senior personnel of the Emergency Services Bureau at the planning meeting of 9.30 am on 17 January and the information that Mr Castle and Mr Lucas-Smith conveyed to the media at the press conference at noon and that was in the media release.Among the most obvious and most serious omissions from the media briefing were the following:
In my view, what was said by Mr Lucas-Smith in Mr Castle’s presence instead served to downgrade the impression of what was obviously a highly volatile and dangerous situation.By omitting to provide the information just listed, and by making such statements as:
The ACT fires are within containment lines;
No need to evacuate property;
No concern for Tidbinbilla Tracking Station or historic sites;
Pretty slim chance of fire meeting urban edge;
Their level of anxiety had not changed since the previous week; and
The rural people knew what to do and probably had already done it.
Mr Lucas-Smith and Mr Castle, failed to convey to the media at noon on 17 January 2003 the truth about the danger they and others at the Emergency Services Bureau knew the fires posed to the ACT community.
The reasons they failed to do this are, however, not clear. Mr Castle said there were no conscious reasons for a warning, even worded as a potential threat, not being publicised at noon on 17 January. I have no doubt that one reason was that Mr Lucas-Smith held a hope that the fires could still be stopped - somehow. I do not accept Mr Lucas-Smith’s evidence, nor the submission from counsel for the ACT, that Mr Lucas-Smith was speaking only of the ACT fires and did not have the McIntyres Hut fire in mind during the media briefing. Even if he did, though, he still did not describe the true situation and potential threat from the ACT fires, and there was no impediment on him, since he admitted to supplementing and commenting on the information being provided by Mr Wade. It is not credible that Mr Lucas-Smith failed to think of the McIntyres Hut fire in terms of its threat to the ACT on 17 January: he had regarded it as a potential threat as soon as it ignited on 8 January, when he travelled to Queanbeyan to meet with NSW fire officials.
There are differences between what Mr Wade and Mr Lucas-Smith said at the media conference. The most important difference is that, on the basis of the evidence, Mr Lucas-Smith did not provide a full and frank disclosure of what he knew and what he regarded as being the worst case scenario.
(Vol II, p 91)
At the media conference at noon on 17 January 2003, Mr Castle and Mrs Lucas-Smith did not provide information of which they were aware and concerns which they held about the true situation of the fires and the real threat they posed to the rural and urban areas of the ACT.
172. The Coroner comments adversely upon the content of the media briefing on 17 January 2003. It was open to her to conclude, as she did, that there was in fact in that briefing an understatement of the risks faced of the threat from the fires to the ACT community.
173. The fact of the understatement was not capable of dispute. Whether the reasons for it were understandable, of significance or not is and was a matter of opinion. The third defendant’s submissions at par 403 set out particulars of the understatements.
174. It cannot be said that this comment was not open to the Coroner to make.
The media unit within the Planning Section of the Emergency Services Bureau did not operate effectively and no procedures existed for collection and dissemination of information that was relevant and important to senior ESB personnel and to the media.
175. It is apparent that it is the “media unit” which is adversely criticised. Mr Castle complains that he was not notified of the proposed comment though Mr McRae was. He was the person responsible for the unit. It was Mr McRae who was responsible for the procedures and guidelines to be adopted by the unit. To criticise those procedures and guidelines was no criticism of Mr Castle. It was a criticism of Mr McRae and he responded to it. If there is doubt about the comment being so confined this clarification should dispel that doubt.
176. As to the substance of the comment, it was admitted by Mr Lucas-Smith that the media arrangements and advice to the community had been “sadly lacking” (T1047-8).
177. It is apparent that it was open to the Coroner to make a similar comment.
The press release the Emergency Services Bureau issued at 3.45 pm comprised six sentences, three of which provided details about how to obtain further information. What was in the other three sentences was, in my view, misleading. It did not report the situation that existed at the time of the release - that all the fires, including the McIntyres Hut fire, had breached their containment lines and were spotting and making runs. Senior personnel at the Emergency Service Bureau knew this from 1.00 pm onwards. Mr Castle should not have been a party to the issuing of a media release in which he is quoted as making comments until he had verified the accuracy of those comments. The only message that on any sensible reading of it comes from the ESB release is, ‘Don’t worry about smoke and bits of flying ash, everything is under control with the fires’.I am satisfied that the media release issued by the Emergency Services Bureau at 3.45 pm on 17 January 2003 was misleading: it did not accurately report the fire conditions and therefore seriously misrepresented the grave situation that existed.
178. The comment was modified in the report in the light of Mr Castle’s response but remains as a criticism that the media release was misleading. It was open to the coroner to conclude that Mr Castle should have realised that and not been a party to its release.
179. The second defendant points to the evidence of the contrast between the ACT ESB media release at 3.45 pm on 17 January 2003 and the NSW RFS release at noon the same day.
180. It is clear that the respective levels of concern expressed in the NSW RFS release are not reflected in the ACT ESB release.
181. Mr Castle contended that he only knew of the McIntyres Hut fire breaching containment lines at 4.00 pm. However, it was open to the Coroner to accept or reject that contention.
182. Mr Castle’s failure to verify the accuracy of the statement issued was not disputed. It would, of course, be arguable that he could assume the accuracy of the information without needing personally to verify that information. However, it is not unreasonable to hold and express a different opinion.
183. The further proposition was that a “sensible reading” of the ESB release was:
Don’t worry about smoke and bits of flying ash, everything is under control with the fires.
184. That is, of course, a fair inference, particularly when it is recalled that the original draft had been amended by Mr Tim Keady (Chief Executive of the Department of Justice and Community Safety – see Vol I, p31) to omit reference to “flying embers” and substitute the reference merely to “smoke and bits of flying ash”. It indicates a desire to reduce any level of alarm but reduces also the accuracy of the message.
185. That supports the reasonableness of the Coroner’s comment.
Counsel’s submission that many people were at the planning meeting and no one expressed concern about warning urban residents is not an answer to the question why those people – who were the professionals charged with the responsibility to warn residents – failed. The senior personnel of the Emergency Services Bureau were the people who had the accumulated knowledge of the situation with the fires since their ignition on 8 January and they were in the best position to appreciate the ever growing risk the fires posed.
186. The comment is responded to by the plaintiffs saying that no-one adverted to the need to warn residents of potentially affected areas.
187. That is, of course, the essence of the challenged comment.
188. It does not render the comment unreasonable or unsupportable that no-one thought to mention the risk, by then identified, to the urban community.
The criticism of Mr McRae by counsel assisting is warranted. Mr McRae was the person responsible for providing the information predicting fire behaviour. The fact that he enlisted the help of professionals is commendable, but then he did not accept the information provided because, it would appear, it did not accord with his own views. He had made many and early dire predictions of what the fire season would hold, and still he failed to heed his own predictions. He was telling those at the planning meetings that Monday 20 January was a likely day for a fire impact, yet as at Friday night he still had not activated his “trigger”, as he described it, to cause warnings to be issued. He said this was because he had not identified the appropriate subset of the community and did not want to alert the entire community. He never reached the position of activating his final “trigger” because events overtook him. His activation of the trigger to warn the rural lessees came very late in the day - late at night, to be precise - and this, too, was very late in view of the information he had before the evening of 17 January. Mr McRae’s philosophy in relation to warnings appeared to be that it is better to wait and tell no one about a threat that could have serious consequences for life and property than to tell some, or even all, the people and be wrong.This is not acceptable for a person in an emergency management position, charged with responsibility for recognising and acting to alert people to dangerous situations. By the evening of 17 January - if not well before - Mr McRae should have activated his trigger. The subset of the population had been identified, as had the serious potential risk; even the timing had been predicted. The Media Unit was located in Mr McRae’s section. He agreed that the people in that unit, and others, were waiting on him to tell them it was time. He should have taken a far more proactive approach, in keeping with his responsibilities, rather than presuming but not checking or monitoring and not knowing whether the messages he thought he was providing were being understood and acted on.
189. It may be, as Mr McRae submitted and responded that it was not regarded by him as his responsibility to make decisions to alert the community.
190. It may be, also, that despite dire predictions as presented to the planning meeting of 17 January 2003, he regarded those as merely a “worst case assessment” (T3397) but despite that, believed the McIntyres Hut fire would be contained.
191. It is apparent that the Coroner’s comment was reasonably open to her.
I have concluded from the evidence before me that:By the evening of 17 January 2003 the senior personnel of the Emergency Services Bureau - Messrs Castle, Lucas-Smith, McRae and Graham were in possession of information confirming what they already believed; namely, the fires posed a serious risk to the edge of Canberra, and the impact was likely to occur within the following 24 hours.
The same senior personnel of the Emergency Services Bureau did not consider it necessary to issue warnings to those people in the urban area who were in the direct path of the fires and, consequently, no warnings were issued.
On 17 January 2003 no contact was made with and no warnings were given to the people living in the forestry settlements of Stromlo, Uriarra and Pierces Creek.
The media update issued at 8.50 pm on 17 January 2003 was inadequate and misleading and did not reflect the situation that pertained and was known to the senior personnel at the Emergency Services Bureau at that time.
By the evening of 17 January 2003 the Emergency Services Bureau had no plans and no strategies for dealing with the fires the following day, when it had been predicted the fires would enter the pine plantations and advance towards the urban edge (other than to leave it to the Fire Brigade personnel).
192. The first part of the comment, namely that the plaintiffs knew as at late 17 January 2003 that the fires posed a serious risk to the urban edge of Canberra with impact 24 hours away was open on the evidence. Indeed, the plaintiffs do not dispute the fundamental facts. They entertained the hope that impact would be averted. There were reasonable grounds for that hope but there was, nevertheless, a serious risk otherwise. That serious risk in fact materialised.
193. The second part of the comment relates to the issue of warnings of that serious risk being communicated to potential victims.
194. There is no dispute that no warnings were issued on 17 January 2003. The exception was of a threat to property at Tidbinbilla. A media release at 8.50 pm referred to the need for property protection in that area. Settlements at Stromlo, Uriarra and Pierces Creek beyond the urban edge, were not mentioned though the risk to them was more grave than that to the suburban edge of Canberra.
195. The comment that senior personnel did not consider it necessary to issue warnings otherwise is a statement of fact that is not capable of serious contention.
196. The implication that is adverse is, of course, that, given the serious and worsening fire spread scenario, the senior personnel, including the plaintiffs, should have considered and then issued such warnings.
197. It is apparent, as Mr Castle agreed (T1723-4), that the decision not to issue warnings “could” have been based on “wishful thinking”.
198. The third part of the comment adversely characterises the 8.50 pm media release of 17 January 2003 as “inadequate” and “misleading”.
199. That it did not reflect the serious risk then existing to rural settlements and some urban areas is self-evident.
200. The characterisation of the 8.50 pm media release by the Coroner was not unreasonable.
201. The fourth part of the comment describes the plans and strategies of ESB once fire entered the pine forests. That there was no plan or strategy other than deploying urban Fire Brigade personnel was a reflection of the evidence concerning Mr Lucas-Smith (as reported by Mr Prince, Mr McRae and Mr Graham) (T6456, 4302, 2949).
202. Of course, it no doubt was recognised that if the fires did enter the pine forests under adverse weather conditions fighting the fires before they reached the urban edge open space would be suicidal. That, however, does not mean that the challenged comment was not open.
Mr McRae failed to heed the evidence presented to him about the predicted fire spread and so did not activate his so-called trigger to cause warnings to be issued to the residents of Canberra.
203. That warnings were not “triggered” by Mr McRae was not disputed. His proffered reason was that he did not want to alert the whole community only that part that “needed to be alerted” (T3351-2).
204. Thus because he could not specify which part of the urban community was at serious risk, he alerted no-one.
205. The Coroner was entitled to criticise that process of reasoning as she did.
Comment n.25: (Vol II, pp 159-160)
The evidence makes it clear that the senior personnel at the Emergency Services Bureau - Mr Castle, Mr Lucas-Smith, Mr McRae and Mr Graham - knew that a potent threat existed. Many others who were working at ESB headquarters in Curtin, as well as the senior bureaucrats who attended the planning meetings, also knew.If any of these people were to claim that they had doubts before 17 January about the potential of the fires reaching the suburbs – and it is difficult to envisage how they could legitimately claim this – then there can be no doubt that any such uncertainties would have been dispelled by the information provided at the afternoon planning meeting on 17 January. They all knew the fires would burn into Canberra. They might not have been sure of the precise place or the precise time or even the precise nature of the fire, but they all knew that impact was inevitable. Those people who said in their evidence that they still hoped the fires could be stopped were living with false hope, not reality, choosing to ignore the information and the evidence presented to them. It is inexplicable that there was no reaction to Mr Taylor’s revised prediction on the morning of 18 January that the fire had the potential to reach the rural-urban interface at 3.00 pm. Mr Graham saw the message but appears to have ignored it.
They knew.
206. I have noted that the assertion that the plaintiffs “knew” that fire “would burn into Canberra” overstates the evidence to an impermissible degree.
207. A conclusion that all the plaintiffs “knew” there was a serious threat that that would occur was well open. It was also open to the Coroner, particularly in the light of the events which happened to conclude that the plaintiffs had been living with false hope though it is not logical to then conclude that they consciously ignored the evidence and information presented to them. As the case of R v Crabbe [1985] HCA 22; (1985) 156 CLR 464 affirms, to be wilfully blind to a consequence is no different from recognising it and choosing to act in reckless disregard of it.
208. The evidence does not warrant such a conclusion on the part of any of the plaintiffs though it is clearly open to conclude that they minimised to themselves and others the level of risk and misrepresented, or permitted the misrepresentation of, the level of risk as they perceived it to be.
209. Of course, by the morning of 18 January 2003 and before 2 pm on that day the risk had been perceived to be an inevitability. Mr Lucas-Smith conceded that in his evidence (T998).
210. The further point is that at 9 am on that day a memo was issued referring to the “potential” for the fire to impact upon the urban interface “from Hawker to Weston Creek from around 1500 this afternoon”.
211. It was not denied that no action followed from this revised forecast. It was open to the Coroner to conclude that such inaction was “inexplicable”.
Until the issue of the first Standard Emergency Warning Signal at 2.40 pm [on 18 January 2003] people in the suburbs of Canberra were not given any information that would serve to warn them that they and their property were at risk that day.
212. The third defendant makes the point, validly in my view, that this comment does not assert that no warnings were given to the public before the specific warning broadcast at 2.40 pm. Rather it asserts that the warnings were not sufficient to warn people that their persons and property were at risk.
213. The third defendant at par 524 refers to the various previous media releases on 18 January 2003: ([524] of 3rd defendant’s submissions)
The media releases or interviews prior to the SEWS at 2.40 pm were to the following effect:(a) At 6.00 am on 18 January 2003 Mr Castle was interviewed by a journalist from ABC radio. The journalist kept notes during the interview. Mr Castle mentioned that the Bendora and Stockyard fires had broken their containment lines and crews were battling spot fires from the McIntyres Hut fire, however, he gave no indication that there was a risk that the fires might enter Canberra. This information was reported on the 7.00 am news.
(b) Mr Castle gave a live-to-air interview on ABC Radio 666 at 7.30 am. The transcript of interview records that during the interview Mr Castle said, inter alia, that the fires had spotted, more property damage was not expected that day but that depended on how people in rural areas had prepared around their property, the greatest concern was Paddys River Road area, the decision to evacuate is up to people in the rural areas because properties have the best chance of avoiding damage if people are prepared top stay to combat ember attacks, the main strategy for the day was property. Further, people were advised to stay east of the Murrumbidgee River and out of rural areas and not to go to places around Cotter, Kambah Pool or Tidbinbilla Nature Reserve. Once again, Mr Castle made no mention of any risk that the fires might enter Canberra.
(c) At midday, a media release was issued by ESB providing a brief summary of the status of the three fires and that weather conditions had caused a number of spot fires across containment lines and that those fires had not been contained. Under the heading “Community safety” there appeared the following message:
Property and Personal Safety
Members of the public are urged to stay away from the fire areas in the western south of the ACT. They are advised they may compromise their own safety and the safety of fire crews by entering the fire areas unauthorised – sightseeing is not permitted.
INDOOR: IF FIRE APPROACHES YOUR HOUSE:
OUTDOOR: IF YOU HAVE TIME, AND ONLY IF IT IS SAFE TO DO SO, YOU CAN DO THE FOLLOWING:
(d) The midday media release contained no information about predictions reported to the planning meeting that morning that the fire would reach the urban area from Weston Creek to Greenway that afternoon or evening, as had been discussed at the morning planning meeting.(e) At the midday press conference, Mr Castle gave a brief overview of the fires which he said posed some difficulty for the ACT, he said resources had been directed at property protection and that the ACT Fire Brigade was looking at contingencies around the urban edge. When asked how close the fires were to houses, the following answers were given:
Media
Q: Excuse me Mike, how close to houses at this stage?
Mike Castle
I was asked the fire, the closest fire as the crow flies is probably 8 to 10 kilometres as the crow flies, but of course there are rural residences in a lot of those grass land areas in between in some of those valleys, and we asked the residents to be mindful of fire around their property and the protection they can take.
Media
Q: Is that down in the suburbs near Tuggeranong?
Mike Castle
No, no that’s rural residents I’m talking about, people out in the rural area, farms.
Media
Q: How close are we getting to the suburbs then?
Mike Castle
Maybe if I ask Peter to talk specifics about the fires and what we’re actually doing. The risk of Canberra is, is there, we would not want to alarm people but it is some distance yet and we have resources that we will deploy at various stages to provide maximum property protection.
Media
Q: Tell us the areas where it’s most concern to you in regards to approach to Canberra?
Peter Lucas-Smith
The three fingers of fire that emerged last night after a pretty tiring night for a lot of our fire fighters and people and the result of that was that we now got fire in the Uriarra pine plantation in the northwest. The Bendora fire that came from the McIntyre fire in NSW. The Bendora fire did some rapid spread to the eastern burning to the back of the Tidbinbilla Nature Reserve and Paddy’s river Gully area. A number of rural properties were certainly threatened but some exceptionally good work was done by ACT Bushfire Service members and NSW Rural Fire Service, supported by NSW Rural Fire Service people. There were 2 properties, barn type sheds lost on 2 of the properties and there was also a ticket station at the Corin Ski Resort are the only property damages that we’ve got other than of course rural fences and grazing lands that’s been affected by the fire.
Peter Lucas-Smith
The fire is still spreading in a westerly direction, sorry in an easterly direction from the west, in an easterly direction and a lot of that is certainly posing some concern to the southern parts of Canberra. As the day warms up and conditions start to come very similar to yesterday events, we will see some more rapid growth in the fire behaviour, but we’re also seeing a change significant change in the fuel types that the fires burning as it comes out into the grass lands it becomes a significant easier fire to contain and it also spreads rapidly but with a lot less intensity and therefore, a lot easier to control even with garden hoses on the back fence.
Peter Lucas-Smith
There is no doubt what so ever that people need to be taking precautions that may live adjacent to the grassland area on the western side of the suburbs of Canberra and they need to be making sure that they have nothing combustible near their homes. They need to make sure that their gutters are clear, their hoses are connected and they can reach all corners of their houses and to be vigorous for any flying embers that might come as the day progresses.
Media
Q: Is that advice that you’re giving to residents of Tuggeranong, we’re not talking about suburban Canberra residents must take these precautions?
Peter Lucas-Smith
I think it is prudent under the current conditions that certainly anybody that lives on the western side of the ACT urban area needs to be taking these sort of precautions.
Media
Q: Does that include Weston Creek and parts of Belconnen?
Peter Lucas-Smith
Certainly Weston Creek and their south. Belconnen is a little bit out of the frame and a bit too far north but I think it is prudent that anybody that lives on that sort of interface area should be taking precautions.
Media
Q: So the message is go home and look after your back fence?
Peter-Lucas Smith
Most definitely, make sure you clear around, make sure its clear, make sure your hoses can fit, make sure your comfortable and you’ve got all the things you need to protect your property.
Media
Q: You were saying yesterday that there was a minimal chance of the fires reaching suburban Canberra, is that still your assessment or have you re-evaluated?
Peter Lucas-Smith
I think the word minimal was your word but there has always been a chance that the fire would reach the urban area. I think that that chance still exists and is certainly not out of our planning arrangements but there (sic) precautionary arrangements at this stage.
(f) A media update was issued at 1.00 pm providing information about the status of the fires, community safety and health warnings, similar to the midday release. Information was also posted on the Canberra Connect website with information about what to do if the fire is approaching my home. However, the information was not directed to any particular section of the community.
214. Mr Castle, in his evidence (T1774), was referred to a statement he had made at midday at the press conference referred to above, that is:
Maybe if I ask Peter to talk specifics about the fires and what we are actually doing, and those – the risk to Canberra is there, we would not want to alarm people but it is some distance yet. We have resources that we would deploy at various stages to provide us maximum property protection. ([531] of 3rd defendant’s submissions)
215. That statement, he agreed, understated the risk as he understood it to be (T1774).
216. The comment is merely factual. It accurately reflects the evidence and was, therefore, open to the Coroner to make.
The Emergency Service Bureau’s management of information was very poor. It appears there was no system for coordinating information flows and no effective collection and dissemination of important information. No one appeared to know what, if anything, was being said and ESB personnel were not sure who was responsible. Mr Lucas-Smith thought information about what people should do to prepare was being put out through a number of press releases when in fact the first such release came at midday on 18 January. Mr McRae said he was not familiar with the content of media releases because it was not his responsibility although in fact – despite his assertion to the contrary – his position was responsible for dissemination of public information. He thought the media people were working behind the scenes. He also thought information about a general threat had been publicised by Saturday 18 January. Mr Graham said information dissemination was not his responsibility.In my view, if Mr Castle was ultimately responsible for authorising the publication of information, he did not ensure that it was disseminated in a timely fashion, in keeping with the urgency of the situation. The midday press release was issued hours after the evacuation planning meeting and the 9.30 am planning meeting. The Standard Emergency Warning Signal notice was signed by Mr Castle at 2.05 pm, yet was not publicised until about 30 minutes later. Further, the information in some of the press releases was out of date or wrong, and generally the content was inadequate and misleading. One glaring mistake was the information underestimating the size of the McIntyres Hut and Stockyard Spur fires.
Mr Castle appeared to be out of touch with the situation as it was developing. He provided inadequate information in his media interviews, and the press releases did not contain important facts which could have served to raise the level of awareness and alert in the community about the deteriorating conditions. Mr Castle had – and should have taken – the opportunity immediately after the 9.30 am planning meeting, in consultation with Mr McRae, to issue a press release providing all the information that had been presented and discussed at the meeting about predicted fire spread. He said nothing about this at the midday press conference; nor was that information in the 1.00 pm media release update. Even after declaration of the state of emergency – at that late hour – in his comments Mr Castle still seemed to be denying the danger then confronting the community.
217. The essence of the adverse comment is a lack of effective administrative systems for the collation and issue of information to the public. The facts relating to the issue of press releases and the warning signal notice were not disputed. Nor was the content of those releases and notices.
218. That the contents of the releases did not reflect the seriousness of the unfolding situation as then known was apparent.
219. The Coroner was entitled to comment that those deficiencies should not have occurred and were the responsibility of Mr Castle to have avoided.
220. The management of information flow, the first part of the proposition, was conceded by Mr McRae to have “problems”. It was said to be a result of “poor facilities” provided to the ESB by the ACT Government. Ms Harvey gave evidence of difficulties in obtaining and coordinating information.
221. That Mr Castle had such difficulties also was apparent. Nevertheless, he conceded that “with hindsight” he regretted not providing more information earlier to the public.
222. That Mr Castle was responsible for authorising publication of the information that was available, the second part of the proposition, was not denied. The Coroner could not have concluded otherwise.
223. The third part of the proposition was that the information that was presented was both inadequate and misleading. That comment was clearly justified by a comparison between the undisputed evidence of what was known to the plaintiffs and what was published. That has been covered by previous comments.
224. The fourth part of the comment expresses the opinion that Mr Castle was “out of touch with the situation as it was developing” and that had he provided more accurate and timely information the community would have been more aware and better alerted to the conditions which ultimately manifested themselves. That was clearly an available inference the Coroner could draw.
Mr Lucas-Smith also did not provide adequate information during the midday press conference. People who were in the path of the fires had a right to know, and Mr Lucas-Smith had an obligation to tell them.
225. That Mr Lucas-Smith had the opportunity so to do and did not was frankly conceded by him in his evidence.
226. That the comment was, therefore, open to the Coroner could not be seriously disputed.
Mr Lucas-Smith and Mr Castle also heard the predictions [fire spread predictions by Messrs Lhuede, Taylor and Gellie] and could have, and should have, disseminated that information immediately by holding a press conference – not waiting until midday – and issuing a media release. Both Mr Lucas-Smith and Mr Castle acknowledged it was their responsibility to keep the community informed.
227. Again, the factual basis for this comment was not disputed.
228. At 9.30 am on the 18 January 2003 it was already accepted that the potential fire spread was that the fires would, albeit in what was then thought to be the worst case scenario, impact Mr Stromlo at 1800 hours.
229. Mr Castle adopted an optimistic view. In the result, the worst case scenario was exceeded. It was, of course, Mr Lucas-Smith who was the over-all commander.
230. It was open to the Coroner to comment as she did.
Comment n.30: (Vol II, pp 161-162)
On the evidence, it is difficult to reconcile the important role that should have been played by Mr McRae, in his capacity as Planning Officer, and what he actually did – particularly in the few days leading up to 18 January. His counsel made several submissions on his behalf, saying, in short, that it was not Mr McRae’s responsibility to issue warnings. Nevertheless, Mr McRae did provide the information which enabled others to issue warnings, even though he believed that was not necessary because he was missing information that was precise as to the time and location of impact. All of this is contradictory and difficult to reconcile because also in the mix is Mr McRae’s belief that the ACT Fire Brigade and the Ambulance Service should have been informed and fully prepared for the impact upon the urban area, but he also believed it was not yet time to tell the residents. At the 9.30 am planning meeting on 18 January he did not appear to voice his disagreement with the fire-spread predictions, but in evidence to the inquiry he said he believed the fire would reach Narrabundah Hill at 8.00 pm on the Saturday and he believed the fire would most likely evolve and impinge on the urban area on or by the end of the following Monday, so there was no need to activate the trigger and cause warnings to be issued on Saturday.Mr McRae enlisted the assistance of experts Messrs Gellie, Lhuede and Taylor and then effectively ignored their predictions. Mr McRae was not told of Mr Taylor’s revised prediction of impact on the suburbs at 3.00 pm, instead of 6.00 pm, but his evidence was that even if he had been he would not have agreed with it. He believed general warnings had been issued to the community and thought these were adequate. The problem is that no general warnings were issued by the Emergency Services Bureau, Mr McRae should have been aware of this.
Mr McRae accepted that his failure to activate the ‘trigger’ on Saturday 18 January was the reason for the midday press release not containing information about the predicted impact on the suburbs of Weston Creek and south to Greenway. But Mr Lucas-Smith and Mr Castle also heard the predictions and could have, and should have, disseminated that information immediately by holding a press conference – not waiting until midday – and issuing a media release. Both Mr Lucas-Smith and Mr Castle acknowledged it was their responsibility to keep the community informed.
231. The factual bases for this comment are not disputed.
232. The justification Mr McRae advanced was the uncertainty as to the precise point or points of fire impact. He had some notion in his mind that it was better not to warn anyone than to warn those who did not need to be warned, even if a warning to some part, then not identified, of the community would be effective to convey the risk they faced. He said:
The specific staff should be used when we knew exactly which parts of the community to target. (T3353)
233. The Coroner was entitled to reject that view. Indeed, Mr Lucas-Smith himself acknowledged that not enough was done adequately to inform the community of the risk of fire impact (T1207). It does seem that Mr McRae equated warning sections of the public with the need to there deploy Fire Brigade, Ambulance and Police resources to particular areas.
234. It was a view the Coroner was entitled adversely to comment upon.
Whatever his own calculations were telling him, Mr McRae did not see the need to warn at all on Saturday 18 January. Further, in evidence he said that “today” he would rely on the same method he used in January 2003 – which failed him, and, ultimately, the entire community.
235. This simply states what Mr McRae himself had said and a statement of that which was obvious. The fire spread model he used was evidently inadequate and it was open to the Coroner to comment as she did.
Comment n.32: (Vol II, pp 162–163)
They had little, if any reason for optimism because they had no strategy to limit the progress of the fires on Saturday as they rolled towards the suburbs, and efforts to that time – valiant as they were on the part of the people actually fighting the fires – had not been successful. The senior personnel of the Emergency Services Bureau recognised the worst case scenario but did not prepare for it. They just hoped.They were influenced in their thinking and planning by their experience with the fires in December 2001 and the success they had in controlling those fires. This was a mistake: it led to a perception - certainly on the parts of Messrs Lucas-Smith, Castle, McRae and Graham - that the fires could be controlled once they reached the eaten-out grasslands on the urban fringe. This notion persisted despite the views expressed publicly, by Mr Lucas-Smith and Mr McRae at least, that conditions in January 2003 were much worse than those in December 2001 and despite the expert opinions previously expressed by Commissioner Koperberg and CSIRO expert Mr Cheney – to say nothing of the dire predictions expressed of Mr McRae in his earlier emails, which are on the public record.
236. That the predictions were regarded by Mr Lucas-Smith and Mr McRae as “worst case” scenarios was conceded by them.
237. It was open to the Coroner to conclude that, although the plaintiffs were genuinely optimistic that the fires would be suppressed before reaching the urban infrastructure, that optimism was held more confidently than it ought to have been.
The decision to issue the Standard Emergency Warning Signal was made far too late, and there is an important question about whether, in the circumstances, it contained appropriate advice. Nothing in the announcement told people the fire was advancing and that impact was highly likely, if not certain. The announcement downplayed the real risk, which was known to all senior ESB personnel and was expressed in the imprecise terms of ‘there is increasing risk due to fire spotting’. No mention of a fire front. To announce that ‘there has been a major deterioration in the ACT fire situation’ could have been meaningful only if the people already knew the true situation, and they did not because they had not been told. The SEWS message listed suburbs that should be ‘on alert’, instead of saying that these suburbs were at very high risk, which is what should have been the focus of the announcement. The message urged residents in these suburbs to return to their homes: this was dangerous advice at 2.40 pm, just before the fire arrived in Duffy and the forestry settlements, because people who were away from their homes were being urged to drive towards the fires without any information about what to expect. The continued broadcasting of this message every 15 minutes - after houses had been destroyed, roads were blocked and access to certain areas was denied - was also very dangerous: It caused further confusion in an already turbulent situation. It would appear that the Emergency Services Bureau was not monitoring what was being broadcast. This is not a criticism of the broadcasters: they were following ESB instructions.
238. The comment is based on the facts as they were found to be. The criticism contained in it is a matter of comment.
239. It is clearly credible, as Mr Castle stated in his s 55 response, that no-one foresaw the ferocity of the firestorm which struck Canberra on 18 January 2003.
240. However, there was evidence that the SEWS warning was issued at a time when fire had already struck some residences. The terms of the warning, in fact, were confusing.
241. The criticism of the timing and terms of the SEWS warning was clearly open to the Coroner to make.
Comment n.34: (Vol II, pp 163–164)
The information about precautions residents should take was inadequate and failed to explain why people should take particular actions and in what order of priority. It said nothing about wearing appropriate clothing and nothing about the dangers of smoke inhalation or radiant heat; nor were there other essential instructions for people to improve their chances of surviving a fire. The instructions were inadequate, incomplete and misleading. It is highly likely that 2.40 pm was the first time many people had heard that information - if of course, they happened to be listening to the radio or watching television that afternoon. Even if people heard the signal and were at home in the forestry settlements and Duffy, Rivett and Chapman and the other affected areas, they had little time to act and were robbed of their choices. Should they pack or should they prepare their houses? Should they leave or should they stay? These decisions were made all the more difficult because at no time were people given information about what they could expect from the fire that was about to hit them.In different circumstances the messages contained in the Standard Emergency Warning Signal authorised by Mr Castle and aired on Saturday 18 January might have been appropriate. But for members of the Canberra community, facing what they were and having received no meaningful information, the content and form of the warning were completely inadequate.
242. That comment was clearly open.
My overall impression is that senior personnel at the Emergency Services Bureau lacked competence and professionalism and that the bureau was disorganised and was functioning in a chaotic, uncoordinated fashion, particularly during the most critical period of the fires. It seems the left hand did not know what the right hand was doing, and neither hand was actually doing very much to deal with the crisis that was escalating day by day, hour by hour.
243. The Coroner is expressing a personal view. It may be a generalisation that did not apply to each individual. However, it cannot be said that such comments were not open. Mr Castle accepted the term “chaotic” though he felt that such a state of affairs was understandable. Mr McRae accepted that processing and communicating information was beset with problems. He blamed the poor facilities provided by the Government to the ESB.
244. Other examples were referred to in the submission of the third defendant.
245. It may be observed that the Coroner does not, in her comment, do more than characterise a state of affairs. She does not attribute blame for it. It may be that the ESB did the best it could, by and large, with the available physical and human resources. Some failures in this area, such as Mr Graham’s failure to process a media message prepared by Mr Taylor are less susceptible of such an explanation.
246. It cannot be said that the opinion expressed was not open to the Coroner.
On the evidence before me I am satisfied that:By the early morning of 18 January 2003, senior personnel of the Emergency Services Bureau - Messrs Castle, Lucas-Smith, McRae and Graham - all recognised the potential for fires to impinge on the urban edge at some time during the afternoon or evening of that day. They failed to take action within their respective areas of responsibility to ensure that public warnings were widely broadcast and delivered to the community.
247. The “worst case scenario” was recognised by the plaintiffs as the comment suggests. It does no more than recite the facts as they appeared at the hearing before the Coroner so as to enable her to conclude that, despite that recognition of the “worst case scenario”, more timely warnings, though reasonably possible, were not given. This could well be described as a failure on the part of the relevant plaintiffs as the comment suggests.
The same senior ESB personnel lulled themselves into a false sense of security because they had been successful in preventing the December 2001 fires destroying any urban structures. As a result of this self-delusion, they deliberately withheld information from the community in the belief that they would – as they had done in 2001 – stop the fires in the grasslands; and they did not wish to alarm the community.
248. It was repeatedly stated by various plaintiffs, and they all seemed to share that view, that the likelihood was that the fires would be contained before impact with the urban interface. They did not publicise the “worst case scenario” because they did not wish to cause alarm that might turn out to be unfounded. In the case of Mr McRae, of course, he had the view that to trigger a warning he needed to know where a fire impact was to be felt so that the urban emergency services could be deployed there.
249. To describe the state of affairs that so existed as “a false sense of security” resulting from “self-delusion” was clearly open to the Coroner. Indeed, it follows from her previous comments.
250. It should not be inferred, of course, that the plaintiffs had deliberately ignored the need to warn the public. It was, however, open to conclude that they failed to respond to the growing fire threat in a timely and effective way, including the issue of warnings to the public.
The Emergency Services Bureau failed to promptly inform the Australian Federal Police of the true situation, and this resulted in a lost opportunity for better coordination of the police role in evacuations on 18 January.
251. It followed from the evidence of Commander Newton that she was not given an adequate and timely briefing on the developing fire situation to enable a more effective deployment of police. She wanted to have the “worst case scenario”. She did not get it. Of course, Mr Castle in particular was distracted by other concerns.
252. Nevertheless, Commander Newton’s statement, which it was open to the Coroner to accept, eloquently revealed the difficulties from her perspective.
About 12.30 pm I redeployed Sergeant Kirby to the ESB mainly because I was concerned about the position Mr Castle was taking regarding a state of emergency and the lack of coordination and information being supplied to the POC. I was particularly concerned about two issues and I asked Sergeant Kirby to speak with ESB staff and clarify them for me. First their position on evacuations – I was receiving mixed messages: on one hand being asked to clear people from the Cotter and Casurina Sands, and on the other being told by Mr Castle that evacuations would not be necessary. Second, I was concerned about my inability, as incident controller in the POC, to be able to speak with key personnel at ESB when I needed to. This included the inability to adequately coordinate media information. Ms O’Brien was unable to ascertain the ESB media strategy despite numerous attempts to contact the ESB media representative. I asked Sergeant Kirby to try and influence ESB’s position regarding the state of emergency.I was later told that evacuations would not be enforced but that the decision to leave should be left to individual residents. I was not happy with this decision as the majority of residents had no idea about the threat that they faced and I did not believe they were in a position to make an adequately informed decision or be prepared for the likely event that would occur. I accepted the ESB position for the time being but anticipated that it would change if and when a state of emergency was declared. From that time onwards ACT Policing Officers at my direction advised people to stay with their houses if they were prepared and capable of protecting their property. Otherwise they were advised to leave.
253. That residents were also confused appeared from their evidence.
254. It follows that the comment was one that it was open to the Coroner to make.
The Emergency Services Bureau issued no official warning to the community until about 2.40 pm on 18 January. By then it was far too late to enable people to take effective precautions for their safety and to make an informed decision about whether to stay with their home or leave in the face of oncoming fire. This late notification caused people to be placed in even greater danger, in their homes and trying to flee in vehicles in the face of a fire that arrived 20 to 30 minutes later.
255. This comment is consistent with comments n.33 and n.34 above.
256. It was open to the Coroner so to conclude.
The declaration of a state of emergency was made far too late. It was made as fires were entering Duffy but should have been made, at the latest, immediately after the planning meeting at 9.30 am on 18 January.
257. This comment is consistent with comment n.33.
258. Similarly, it was a comment open to the Coroner to make.
The system employed by Mr McRae - that is, his ‘trigger’ system, which involved waiting for a specific set of circumstances to be identified before taking any action to warn a specific subset of the community – is seriously flawed and constitutes a dangerous way to operate in an emergency management environment.
259. This is consistent with comments n.30 and n.31.
260. It was open to the Coroner to make this comment.
Generally
261. The comments made by the Coroner were, no doubt, expressed somewhat harshly. However, the loss and suffering caused by the fires was a circumstance that would excite scrutiny. It is true that the comments, understandably, they being “adverse”, do not fully acknowledge the good the plaintiffs did. They did their best. It was not, in the Coroner’s view “the best”. She was entitled so to conclude. It may also be acknowledged that even the worst case scenario was exceeded in the firestorm that struck on 18 January 2003.
262. Nevertheless, it was the Coroner’s duty to examine the cause and origins of the firestorm and the circumstances surrounding it and, within those limits make recommendations and comment, honestly and without fear or favour. That she did.
263. The plaintiffs’ applications, save as relates to comment n.25, are dismissed.
I certify that the preceding two hundred and sixty-three (263) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.
Associate:
Date: 8 April 2009
Counsel for the First, Second, Third Mr J L Glisson QC with Mr P A Walker
and Fourth Plaintiffs: and Mr S M Whybrow
Solicitor for the First, Second, Third Rachel Bird & Co
and Fourth Plaintiffs:
Counsel for the First and Third Mr R Brett QC with Mr E Woodward
Defendant:
Solicitor for the First Defendant: ACT Government Solicitor
Solicitor for the Third Defendant: Director of Public Prosecutions for the ACT
Counsel for the Second Defendant: Mr B Walker SC with Mr C Erskine
Solicitor for the Second Defendant: Meyer Vandenberg Lawyers agent for
NSW Department of the Environment and
Conservation
Counsel for the Intervener: Dr Mellissa Perry QC
Solicitor for the Intervener: ACT Government Solicitor
Date of hearing: 12 May 2008
Date of judgment: 8 April 2009
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