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[2017] VSC 328
General information, not legal advice.
Supreme Court of Victoria
2017-06-09
Ginnane J
Original judgment source is linked above.
1 This is an appeal pursuant to s 82 of the Coroners Act 2008 ('the Act') against the decision of the State Coroner dated 3 July 2015 not to hold an inquest into the death of David Meredyth Robinson.
2 Mr Robinson, who was a solicitor, died on 10 July 2006, after being shot at his Fairfield office.
3 The appellant, Mr Glascott, was convicted on 29 May 2008 after a Supreme Court trial, of Mr Robinson's murder. He was initially sentenced to 28 years' imprisonment, with a non-parole period of 24 years. He appealed to the Court of Appeal against the conviction unsuccessfully, however, he was re-sentenced to 24 years' imprisonment, with a non-parole period of 20 years.[1] He applied, unsuccessfully, for special leave to appeal to the High Court.[2]
4 Mr Glascott applied for an inquest in writing on 28 April 2015 and repeated this request in later letters.
5 In his decision of 3 July 2015, the Coroner stated that he could find no coronial purpose which would be likely to be served by holding an inquest into Mr Robinson's death, in circumstances where Mr Glascott had been convicted of his murder, having regard to the various provisions of the Act bearing upon the purposes of an inquest and the exercise of the discretion as to whether to hold an inquest, and having regard to Mr Glascott having exhausted his appeal rights concerning his conviction.
6 The Coroner wrote that in correspondence Mr Glascott had stated his belief that he was unlawfully convicted of the murder of Mr Robinson and requested that an inquest into his death be held, 'in the hope that the truth will come out.' In later letters to the Coroner, he stated that, 'Victoria Police told a lot of lies,' and referred to the 'many errors' that he believed were made during the criminal investigation and trial. He alleged that there was conflicting evidence as to the time of Mr Robinson's death, and that the Crown lied in its evidence about an ambulance pick-up outside Mr Glascott's rental unit. Mr Glascott also stated that DNA found at the scene 'never went into evidence' and that his many requests for 'an interview' presumably by the police were refused.
A Coroner must hold an inquest into a death if the death or cause of death occurred in Victoria and the Coroner suspects the death was the result of homicide.[3] However, a Coroner is not required to hold an inquest in these circumstances if a person has been charged with an indictable offence in respect of the defence being investigated.[4] I am therefore not required to hold an inquest into Mr Robinson's death, but may exercise my discretion to hold one.
8 The Coroner, after examining the coronial brief, decided that:
Mr Glascott has exhausted his appeal rights in the criminal jurisdiction, and it is not the role of this Court to determine whether a person has committed an offence, or to seek to re-examine decisions made by other courts, either by inquest or otherwise.
Further, a Coroner is explicitly prohibited from including in a finding or comment any statement that a person is, or may be, guilty of an offence.[5] I am of the view that implicit in this provision is a prohibition on investigating a death or a holding of an inquest for the purpose of determining whether a person is or is not guilty of an offence, irrespective of whether a person has already been convicted of an offence.
While the Act gives no explicit guidance as to how the discretion to hold an inquest should be exercised, I have considered all the above in light of the preamble, purposes and objectives of the Act generally, the terms of s 67, the specific obligations to 'avoid unnecessary duplication of inquiries and investigations' and 'to expedite the investigation of deaths,'[6] the desirability of proceeding therapeutically, minimising delay[7] and ensuring the coronial system operates in a fair and efficient manner.[8]
9 On 20 October 2015, the Coroner determined pursuant to s 52(3)(b) and 71 of the Act, that an inquest would not be held in respect of Mr Robinson's death as Mr Glascott was charged with an indictable offence in relation to that death and the making of a finding would inappropriate in the circumstances. The Coroner noted that he had formally refused Mr Glascott's request for an inquest, and that despite Mr Glascott's indications, no formal notice of appeal had been received. The Coroner was satisfied that it was neither necessary nor appropriate to pursue any further coronial investigation or inquest into the death.
10 Mr Glascott represented himself as he had on his appeal to the Court of Appeal. The Court attempted to arrange pro bono counsel to represent Mr Glascott but that did not prove feasible. The Coroner was represented at the appeal and counsel made submissions about the scheme of the Act, but not as to the merits of the appeal and stated that the Coroner would submit to such order as the court may make.
The coronial system of Victoria plays an important role in Victorian society. That role involves the independent investigation of deaths and fires for the purpose of finding the causes of those deaths and fires and to contribute to the reduction of the number of preventable deaths and fires and the promotion of public health and safety and the administration of justice.
This role will be enhanced by creating a Coroners Court and setting out the role of the Coroners Court and the coronial system and the procedures for coronial investigations.
12 Section 1 contains the following purposes of the Act:
The purposes of this Act are -
(a) to require the reporting of certain deaths; and
(b) to provide for coroners to investigate deaths and fires in specified circumstances; and
(c) to contribute to the reduction of the number of preventable deaths and fires through the findings of the investigation of deaths and fires, and the making of recommendations, by coroners;
(d) to establish the Coroners Court of Victoria as a specialist inquisitorial court;
...
13 Part 2 of the Act is entitled 'Objectives' and states:
6 Role of objectives
The objectives in this Part are intended to give guidance in the administration and interpretation of this Act.
7 Avoiding unnecessary duplication
It is the intention of Parliament that a coroner should liaise with other investigative authorities, official bodies or statutory officers -
(a) to avoid unnecessary duplication of inquiries and investigations; and
(b) to expedite the investigation of deaths and fires.
8 Factors to consider for the purposes of this Act
When exercising a function under this Act, a person should have regard, as far as possible in the circumstances, to the following -
(a) that the death of a family member, friend or community member is distressing and distressed persons may require referral for professional support or other support;
(b) that unnecessarily lengthy or protracted coronial investigations may exacerbate the distress of family, friends and others affected by the death;
(c) that different cultures have different beliefs and practices surrounding death that should, where appropriate, be respected;
(d) that family members affected by a death being investigated should, where appropriate, be kept informed of the particulars and progress of the investigation;
(e) that there is a need to balance the public interest in protecting a living or deceased person's personal or health information with the public interest in the legitimate use of that information;
(f) the desirability of promoting public health and safety and the administration of justice.
9 Fairness and efficiency of coronial system
The coronial system should operate in a fair and efficient manner.
14 Section 52 sets out the circumstances in which a Coroner may, and must, hold an inquest and provides:
52 Inquest into a death
(1) A coroner may hold an inquest into any death that the coroner is investigating.
(2) Subject to subsections (3) and (3A), a coroner must hold an inquest into a death if the death or cause of death occurred in Victoria and -
(a) the coroner suspects the death was the result of homicide; or
(b) the deceased was, immediately before death, a person placed in custody or care; or
(c) the identity of the deceased is unknown; or
(d) the death occurred in prescribed circumstances.
(3) The coroner is not required to hold an inquest in the circumstances set out in subsection (2) if -
(a) the coroner believes the death probably occurred more than 50 years before the death was reported to the coroner; or
(b) a person has been charged with an indictable offence in respect of the death being investigated by the coroner; or
(c) an interstate coroner has investigated, is investigating, or intends to investigate, the death; or
(d) the death occurred outside Australia.
(3A) The coroner is not required to hold an inquest in the circumstances set out in subsection (2)(b) if the coroner considers that the death was due to natural causes.
(3B) For the purposes of subsection (3A), a death may be considered to be due to natural causes if the coroner has received a report from a medical investigator, in accordance with the rules, that includes an opinion that the death was due to natural causes.
(4) The circumstances set out in subsections (3) and (3A) do not limit the powers of a coroner to hold, adjourn or recommence an inquest.
(5) A person may request a coroner to hold an inquest into any death that the coroner is investigating.
(6) Within 3 months of receiving a request under subsection (5), the coroner must, in writing, advise the person who made the request that the coroner has -
(a) decided to hold an inquest; or
(b) decided that an inquest will not be held; or
(c) not made a decision as to whether or not an inquest will be held and that the coroner will advise the person of the decision when the decision has been made.
15 Section 67 sets out the findings that a coroner may make:
67 Findings of coroner investigating a death
(1) A coroner investigating a death must find, if possible -
(a) the identity of the deceased; and
(b) the cause of death; and
(c) unless subsection (2) applies, the circumstances in which the death occurred; and
(d) any other prescribed particulars.
(2) Whether it is possible or not, a coroner need not make a finding with respect to the circumstances in which a death occurred if -
(a) an inquest into the death was not held; and
(b) the coroner finds that -
(i) the deceased was not, immediately before the person died, a person placed in custody or care; and
(ii) there is no public interest to be served in making a finding regarding those circumstances.
(3) A coroner may comment on any matter connected with the death, including matters relating to public health and safety or the administration of justice.
16 Section 69 prohibits a coroner from making certain statements in any finding or comment:
69 Findings not to contain statement regarding guilt
(1) A coroner must not include in a finding or comment any statement that a person is, or may be, guilty of an offence.
(2) Subsection (1) does not apply to prevent the inclusion in a comment of a statement relating to a notification to the Director of Public Prosecutions under section 49.
17 Part 7 of the Act deals with appeals to the Supreme Court from decisions of the Coroners Court. Section 82 provides:
82 Appeal in relation to determination not to hold an inquest
(1) If a coroner determines not to hold an inquest into a death or fire, the person who requested the coroner to hold an inquest into the death or fire may appeal against the coroner's determination to the Trial Division of the Supreme Court constituted by a single judge.
(2) Subject to section 86, an appeal under this section must be made within 3 months after the day on which the determination of the coroner is made.
87 Appeal to Supreme Court
(1) Subject to section 87A, an appeal to the Supreme Court under this Part is an appeal on a question of law.
(2) Subject to this Part, an appeal under this Part must be brought in accordance with the rules of the Supreme Court.
(3) The Supreme Court may make an order staying the operation of a determination that is the subject of an appeal under this Part.
(4) Subject to section 88, after hearing and determining the appeal, the Supreme Court may make any order that it thinks appropriate, including an order remitting the matter for re hearing to the Coroners Court with or without any direction in law.
(5) An order made by the Supreme Court on an appeal under this Part, other than an order remitting the matter for re-hearing to the Coroners Court, may be enforced as an order of the Supreme Court.
87A Appeal to Supreme Court in the interests of justice
(1) An appeal to the Supreme Court other than on a question of law may be made under section 82(1) in respect of a decision by a coroner to not hold an inquest into a death, or section 84(1) in respect of a refusal by the Coroners Court to re-open an investigation into a death, if the appeal is made by -
(a) the senior next of kin of the deceased; or
(b) a person with sufficient interest.
(2) The Supreme Court may allow an appeal under subsection (1) if it is satisfied that it is necessary or desirable in the interests of justice to do so.
19 An appeal under s 87 must identify with precision any error of law that the appellant alleges that the Coroner made. The question of law is the subject matter of the appeal and the appeal is confined to the question of law. In Bourke v Coroners Court of Victoria & Barwon Health, Zammit J stated:[9]
Importantly, s 87 of the Act provides that an appeal to the Supreme Court is on a question of law. The existence of a question of law is not only a precondition of the right to appeal, it is the subject matter of the appeal itself. The need to identify a question of law serves as a criterion upon which several policy objectives are fulfilled through s 87 of the Act. It is essential that the question of law said to have been erroneously decided is identified exactly. It is the means by which finality of the Coronial process is achieved as well as the trigger by which the statutory jurisdiction of this court may be enlivened.
20 Section 87A, enables the Court to allow an appeal when it is satisfied that it is 'necessary or desirable in the interests of justice' to do so. A similar provision was contained in s 18(3) of the Coroners Act 1985.
21 In Chiotelis v Her Honour Judge Coate, Robson J said that under s 18(3) of the 1985 Act:[10]
22 Mr Glascott filed affidavits and wrote a number of documents to the Court and gave oral evidence. During the hearing of his appeal he tendered a number of photographs and documents. The Coroners Court filed an affidavit by its solicitor, which exhibited the coronial brief.
23 The Court received a number of letters from Mr Glascott while judgment was reserved. Mr Glascott had not been granted leave to send the letters, but, in any event, their contents did not add to his case in any relevant respect.
24 I have considered all of Mr Glascott's submissions, including those that went beyond his grounds of appeal as he was self-represented. The grounds in his notice of appeal were directed at competence of counsel, alleged perjured evidence and the time of Mr Robinson's death. The questions of law were expressed as: 'unfair and unlawful police conduct'; a new DNA report and police perjury; and errors made in the murder investigation so that 'the truth is not known'.
25 Mr Glascott submitted that the truth had not emerged at his trial, and that a number of witnesses had committed perjury. He attacked the reasoning of the Court of Appeal contending that it contained contradictions and that he was entitled to a coronial inquest so that the errors could be corrected.
26 Mr Glascott argued that the evidence of the deceased's son and the deceased's phone records did not support the time of death alleged by the prosecution. He contended that if Mr Robinson was not shot at 8.30 pm as the prosecution alleged, then the case against him could not succeed. The evidence of Mr Robinson's son, who put his attendance with his father at the scene of the shooting at 9.00 pm, contradicted other evidence that put the shooting at about 8.30 pm. He attacked Ambulance Victoria's evidence about the time ambulance services attended at the murder scene. There was, however, ample evidence that the death of Mr Robinson occurred at the time the prosecution alleged. It is no answer to say that there was some contradictory evidence.
27 Mr Glascott attacked his counsel's conduct of his defence. He said that he had lost his chance of obtaining an acquittal. He alleged contradictory statements by counsel about whether his DNA, or his car, were found at the crime scene, and that he had a grudge against the deceased. He attacked his counsel's concession that Ms Addamo had identified his vehicle as being at the location of the crime scene at about 6.40 pm.
28 Mr Glascott's contention that he was not properly represented by counsel at his trial was considered by the Court of Appeal and not accepted.[11]
29 Mr Glascott particularly attacked the Court of Appeal's reasoning about his motive. Mr Glascott contended that the motive relied on by the Crown had not been established. The Court of Appeal noted that the Crown's case at trial:
Was that the killing arose out of an attempt by the applicant to set fire to Mr Robinson's office as retribution for what the applicant perceived to be the disservice which Mr Robinson had done him in the conduct of the applicant's property settlement proceedings with his former wife. [12]
30 The Court of Appeal stated that Mr Glascott had an outstanding appeal against a Family Court access decision concerning his child at the time of the murder. The Court of Appeal accepted Mr Davine's evidence that there was a custody appeal on foot, evidence that it said was not challenged or contradicted.[13] Mr Glascott disputed that there was any such appeal, although he agreed that he wished to pursue normal access issues in the Family Court. The documents that Mr Glascott produced in his appeal in this proceeding in support of his contention that there was no appeal on foot were dated after the murder.
31 Mr Glascott also referred to photographs of a car in the laneway near the office which he said pictured a bullet near its tyre. I examined photographs produced by Mr Glascott and consider it impossible to tell whether the small item near the tyre is a bullet or not. He also said that he had been told by a private investigator that one of the vehicles was owned by a person with a significant criminal history. He produced motor registration records that showed that the plates of the Mazda vehicle had been stolen, but that information related to 2012, which was six years after the shooting. He also referred to the crime scene photographs, including a black bag and a piece of wood, that he said were unaccounted for.[14] He also said that there was a trail of blood for 40 metres from the crime scene, in a direction that differed from the Crown's case concerning the direction in which Mr Robinson had been forced to walk by his murderer. But, even if that was established, Mr Glascott did not explain why that fact established an error by the Coroner in his discretionary decision to refuse to hold an inquest.
32 Mr Glascott attacked many other aspects of the Court of Appeal's decision. He raised the issue of the DNA evidence. The Court of Appeal considered that issue and his general submission that perjured evidence had been given and rejected his contentions.[15] He raised other issues including the Crown's failure to call Detective Hancock. The Court of Appeal rejected that argument, deciding that he was not a material witness.[16]
33 Mr Glascott made various attacks on the way in which the prosecution and the police had conducted the murder investigation. The Court of Appeal dismissed contentions directed at the prosecution's conduct of the trial.[17] In this proceeding Mr Glascott's contentions included that the prosecution withheld criminal records and statements from suspects concerning motor vehicles parked near the scene of the shooting. There was no evidence that the Mazda vehicle, which was one of the vehicles, was stolen on the date of the murder.
34 Mr Glascott sought leave to issue a number of subpoenas. They included a subpoena to Victoria Police seeking any information they had about two vehicles shown at the crime scene and any possible criminal record of the owners of the vehicles. He wished to subpoena a witness called Claudio Larosa, who gave evidence at the trial about visiting Mr Glascott's unit on the evening of the murder. Mr Larosa later made an affidavit apparently for use in the High Court special leave application retracting some of that evidence, but that affidavit was not used in the High Court. Mr Glascott wanted to subpoena a complete hand-up brief. Upon further consideration he also wished to subpoena the youngest son of the deceased, and two Crown witnesses. I refused Mr Glascott leave to issue the subpoenas for reasons that I gave on 27 March 2017.
35 Mr Glascott wanted to reargue his appeal rather than argue questions of law. I consider that none of the matters raised by him establish errors of law in the Coroner's exercise of his discretion as to whether to hold an inquest. The Court of Appeal did not consider that similar arguments required the setting aside of Mr Glascott's conviction and the ordering of a new trial. This appeal was not the occasion to attack the Court of Appeal's decision and the arguments raised did not require the Coroner to decide to hold an inquest. The Coroner exercised a discretion and no error in the exercise of his discretion has been established.[18]
36 It will not always be appropriate for the Coroner to refuse to hold an inquest when a person has been convicted of causing a death. But there was no error in the exercise of the Coroner's exercise of discretion in this case.
37 Nor I am satisfied that it is either necessary or desirable in the interests of justice to allow the appeal under s 87A. Most of Mr Glascott's submissions were really directed at the interests of justice. But, Mr Glascott has exercised his right of appeal to the Court of Appeal against his conviction and then unsuccessfully sought leave to appeal to the High Court. He was unable to persuade either of those Courts that he had been wrongly convicted or had suffered an injustice. As mentioned, the principal matters that Mr Glascott argued had been raised at trial or were dealt with on appeal. There is nothing in any additional matter raised on this appeal that establishes that the interests of justice require the appeal to be allowed.
[1] Glascott v The Queen [2011] VSCA 109 ('Glascott').
[2] Glascott v The Queen [2015] HCA Trans 22.
[9] [2015] VSC 418, [21]. Her Honour referred to Osland v Secretary to the Department of Justice [2010] HCA 24; (2010) 241 CLR 320, 330.
[10] [2009] VSC 256, [26] (authorities omitted).
[15] Ibid [135]-[136] and [118]-[121].
[17] Ibid [111]-[114] [132]-[134].
[18] House v R [1936] HCA 40; (1936) 55 CLR 499.
Glascott
Coroners Court of Victoria [2017] VSC 328
(2010) 241 CLR 320
(1936) 55 CLR 499