‘This is not a trial’: accusatory style stands out

Lachie Jones. Photo: ODT files
The inquest into the death of 3-year-old Lachie Jones brought bombshell revelations every day. PIJF court reporter Felicity Dear recaps the 13-day hearing and speaks to two legal experts about why seemingly outrageous theories were allowed to be aired in court.

Staged phone calls, a body in the freezer, a mystery shirtless man. By the second week of the Lachie Jones inquest almost nothing seemed off-limits as the coroner worked to determine the cause of the Gore 3-year-old’s death.

The inquest came five years after Lachie was found and while lawyers reminded witnesses "this is not a trial", the accusatory style of questioning seemed unusual for a fact-finding exercise.

Lachie Jones was found face up in a Gore oxidation pond 1.2km from his home on January 29, 2019. Police swiftly concluded the boy had drowned but later admitted they "missed some steps" in the initial investigation.

Simon Mount KC, counsel assisting coroner Alexander Ho, explained why the case had so many questioning the initial police conclusion.

"How can it be that a 3 and a-half-year-old boy runs away 1.2km, 9 o’clock at night, dirty nappy, climbs a fence, travels across some pretty uncomfortable ground ... through the vegetation. No-one out searching sees him. He doesn’t respond to anyone calling out his name. The police dog doesn’t pick up the scent until quite close to him. Do you understand why people say this doesn’t add up?"

Lachie’s father, Paul Jones, never subscribed to the idea his son had drowned and believes another person was involved in Lachie’s death.

This theory, along with allegations of neglect, staged phone calls and storing Lachie’s body in a freezer were bluntly put to the witnesses by Mr Jones’ lawyer, Max Simpkins.

It seemed almost everyone was a suspect with one shocking accusation after another. So why was that the case?

A pair of legal experts say that is just what can happen in an inquest, where the end goal is different from a criminal trial.

University of Auckland law professor Mark Henaghan explained that in a criminal trial, witnesses were not suspects.

"In a criminal trial ... the actual defendant is rarely in the witness box because it’s a risky business", he said.

While the hearing was not a prosecution, the aim was still to find out how the child died.

The basic rules of evidence still applied, so the coroner had to deem the allegations relevant and fair for them to be put to the witness, Prof Henaghan said.

"This is one where making accusations was seen obviously by the coroner as being appropriate", he said.

Prof Andrew Geddis, of the University of Otago Faculty of Law, said the subpar police investigation and lack of concrete evidence left it open for lawyers to explore different theories.

"Because there isn’t very good evidence as to what actually happened, it allows for speculation or allegations that could be proved or disproved if you had evidence", he said.

"Because we don’t know, these things can be put as possibilities in order for the possibility to be tested and examined in this forum."

Lachie’s mother, Michelle Officer, was grilled by Mr Simpkins over her two days in the witness box.

The lawyer alleged Ms Officer’s sons’ rocky relationship with Mr Jones was a motive for the family to want Lachie dead.

"If Lachie is no longer at home there’s no need for Paul to go to the home, is there?" he asked.

"My boys have a father that lives close by. If Paul comes to the house they just go to their father’s home", Ms Officer said.

Mr Simpkins put it to the witness that Lachie had been killed hours before he was reported missing.

She described the proposition as "ludicrous".

Mr Simpkins took Lachie’s mother through the boy’s medical history, which ranged from gum disease to suspected pneumonia, and said an expert who reviewed the file had opined it showed evidence of neglect.

She vehemently denied the accusation.

Lachie’s half-brothers, Cameron and Jonathan Scott, also came under fire when Mr Simpkins alleged they both falsified records to cover up their involvement in the boy’s death.

Mr Simpkins asked Jonathan Scott, the younger of Lachie’s half-brothers, if he had stored the dead toddler in the freezer.

"That’s ridiculous", Mr Scott said in response to the allegation.

Both brothers admitted they were not particularly concerned when they found out Lachie was missing as their mother was overprotective at times.

Mr Simpkins put it to each of them that their blasé reaction was because they already knew the boy was dead.

"Despite the fact that [Lachie] was lost, missing, not there, your mother was panicking ... you elected to do nothing, is that right?" Mr Simpkins said to Jonathan Scott.

"That’s right", Mr Scott confirmed.

"You knew your brother was deceased at that stage, didn’t you?" Mr Simpkins said.

The witness explained he was at work that day and had proof — a notebook with his logged hours.

While Mr Simpkins said the book could have easily been falsified, a foreman at Mr Scott’s workplace gave evidence he was there the day Lachie died.

Mr Simpkins alleged Lachie’s elder brother, Cameron Scott, and Ms Officer had staged phone calls to create a false record of where he was on the night.

One call was to ask for help ordering pizza online and another to inquire about the police emergency phone number — which neither of them knew.

"She’s rung you to organise the pizza and to speak to you about the emergency number so there can be a record that you were not at the house until much later", Mr Simpkins said.

"How dare you make something up like that", Mr Scott replied.

Police admitted their first investigation into the boy’s death had some flaws and Mr Jones called it "a bloody botched-up police job".

Time of death, cause of death and the strength of the witnesses’ evidence was not determined on the night.

The scene was not preserved and throughout the hearing it became clear officers had different understandings of who was calling the shots.

Senior Sergeant Cynthia Fairley believed the officer in charge of the investigation was Sergeant Hua Tamariki, while he believed it was her.

Only a general, lesser postmortem was performed on Lachie rather than a forensic one.

The court heard that after a "lengthy" discussion between the duty coroner and police, the direction for a forensic postmortem was withdrawn.

The pathologist, who has name suppression, gave evidence that he "reluctantly" agreed to the job and thought he was doing the family a favour by having the autopsy done locally.

The witness said a child’s death was "normally a specialist task" and not something he had been routinely doing in New Zealand.

"In my opinion, the cause of death still would be drowning unless someone can find an alternative diagnosis", the witness said.

Ms Officer maintained her adventurous son ran away and tragically drowned. She said the conspiracy theories of how he died and allegations of her being neglectful had "destroyed" her.

"My whole world, my whole life has been destroyed. I’ve just had all these false allegations I was a bad mother, which wasn’t true at all. It’s just been horrible."

Mr Jones said he wanted answers and the police finding lacked common sense, but the inquest might not give him the answers he wanted.

Prof Geddis said even if Mr Jones got the answers he wanted more work would be needed for a criminal conviction.

"Even if the coroner’s court was to come out and say ‘I find that this boy died as a result of [the] actions of another’, that in and of itself doesn’t actually determine that there’s been criminal liability.

"You’d then have to go on and have that proved ... beyond reasonable doubt with evidence in front of a criminal court."

The inquest is not over yet. A second phase in August will hear from expert witnesses.

The list of witnesses for the second session includes three forensic pathologists, an investigator to be called by Mr Jones and a child behaviour expert.

The gap between the two sessions was to allow the experts to review the evidence heard over the last 13 days.

Coroner Ho directed police to further investigate specific details about the scene such as the composition of the pond water, the slipperiness of its surface and wind data.

He also wanted the sighting of a mystery shirtless man to be followed up as neighbour Kimberley Marshall’s whereabouts might align.

The second investigation remains open and Coroner Ho said the inquest was striving to find answers and justice for Lachie.

— Felicity Dear, PIJF court reporter