Appellant v Respondent

1 On 17 January 2015, Mayumi Spencer was found dead in the Docklands apartment that she shared with her husband Peter Spencer. She was then 29 years old. Dr Spencer, who is a respiratory and sleep physician, was in the apartment with his wife when she died. Dr Spencer told police that he had found his wife choking and had spent some time trying to resuscitate her, before calling for an ambulance at 7:38am. Ms Spencer was dead when the ambulance officers arrived at the apartment.

2 Ms Spencer's death was reported to a coroner, as required by Pt 3 of the Coroners Act 2008 (Vic). At the direction of a coroner, a forensic pathologist conducted an autopsy on 17 January 2015. The pathologist's opinion was that the cause of death was cocaine toxicity.

3 In June 2015, the coroner asked police to investigate Ms Spencer's death and to provide a brief of evidence. The coronial investigation was held in abeyance during the police investigation. In March 2022, the police advised that there would be no criminal charges, and that an inquest brief would be provided shortly. The coroner received the brief in April 2022, and proceeded with his investigation.

4 On 29 September 2022, the Coroners Court of Victoria provided Dr Spencer with the coroner's potential findings about the circumstances of Ms Spencer's death, and gave him the opportunity to comment on them and to respond to any inaccuracies. Dr Spencer indicated his strong disagreement with the potential findings, and provided some documents to the Coroners Court in late November 2022.

5 Over the next six months, Dr Spencer engaged sporadically with the Coroners Court. The hearing of the summary inquest was adjourned several times to enable Dr Spencer to engage a lawyer, but he was unrepresented at the final hearing on 14 March 2023. The coroner also gave Dr Spencer additional time to make further submissions, the final deadline being 28 April 2023. In the end, Dr Spencer did not make any further submissions in relation to the potential findings.

6 On 8 June 2023, the coroner published a determination setting out his findings on Ms Spencer's death, under s 67 of the Coroners Act.[1] The coroner found that the cause of death was cocaine toxicity. In addition to the findings required by s 67(1), the coroner commented that he had formed the belief that the indictable offence of negligent manslaughter may have been committed by Dr Spencer in connection with Ms Spencer's death, due to the delay in seeking urgent medical assistance. Under s 49(1) of the Coroners Act, the coroner directed that the Director of Public Prosecutions (DPP) be notified of his belief. The coroner's determination is set out in detail below.[2]

7 In this proceeding, Dr Spencer appeals against the findings of the coroner, under s 83 of the Coroners Act. He seeks orders removing all of the findings and the referral to the DPP. In addition, he seeks orders for the investigation of the coroner, the police officer who prepared the brief, the forensic pathologist who conducted the autopsy, and another doctor who provided an expert report that was included in the brief. Finally, he seeks 'compensation for damages'.

8 The Coroners Court adopted a neutral position in relation to the appeal,[3] limited to making submissions to assist the Court in relation to the applicable law, questions of jurisdiction and power, and the practices and procedures of the Coroners Court. It also filed an affidavit recounting the procedural history of the coronial investigation and exhibiting the documentary material that was before the coroner.

9 For the reasons that follow, the appeal must be dismissed.

Coroners Act - relevant provisions

10 The Coroners Act establishes the Coroners Court, which consists of the coroners, judicial registrars, and registrars of the Coroners Court.[4] It also establishes the office of the State Coroner, who is a coroner and is also responsible for the administration of the Coroners Court.[5] The coroner who conducted the inquest into Ms Spencer's death was the State Coroner.

11 Sections 14 and 15 of the Coroners Act provide for a coroner to investigate a 'reportable death', as defined in s 4. Relevantly here, a 'reportable death' is a death that appears to have been unexpected, unnatural, or violent, or to have resulted from an accident or injury.[6]

12 Section 52 sets out circumstances in which a coroner may and must hold an inquest into a death. Under s 52(2)(a), the coroner must hold an inquest into a death if the death occurred in Victoria and the coroner suspects the death was the result of homicide.

13 Part 6 of the Coroners Act provides for findings, recommendations, and referrals.

14 Section 67 sets out the findings to be made by a coroner investigating a death, relevantly:

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.

...

(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.

15 Section 69 precludes a coroner from making a finding that a person is, or may be, guilty of an offence. It provides:

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.

16 Section 49(1) provides that the principal registrar must notify the DPP if the coroner investigating a death believes an indictable offence may have been committed in connection with the death.

17 Under s 73, the findings, comments, and recommendations made following an inquest must be published on the internet, unless otherwise ordered by a coroner.[7]

18 Part 7 of the Coroners Act provides for appeals to the Supreme Court from a number of specific decisions that may be made by a coroner.[8] This appeal is brought under s 83, which provides for an appeal from the findings of a coroner, in the following terms:

(1) A person with a sufficient interest in an investigation may appeal against the findings of a coroner in respect of a death or fire after an investigation to the Trial Division of the Supreme Court constituted by a single judge.

(2) An interested party may appeal against the findings of a coroner in respect of a death or fire after an inquest to the Trial Division of the Supreme Court constituted by a single judge.

(3) Subject to section 86, an appeal under this section must be made within 6 months after the day on which the determination of the coroner is made.

19 Section 87 makes general provision for appeals to the Supreme Court under Pt 7:

(1) Subject to section 87A,[9] an appeal to the Supreme Court under this Part is an appeal on a question of law.

(1A) An appeal on a question of law includes an appeal on the grounds that the finding which is appealed is against the evidence and the weight of the evidence to such an extent that no reasonable coroner could have made the finding.

(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.

20 Division 1C of Pt 8 of the Coroners Act establishes the Victorian Systemic Review of Family Violence Deaths unit, referred to as the VSRFVD.[10] The VSRFVD consists of the State Coroner and any other persons appointed by the State Coroner.[11] The functions of the VSRFVD are set out in s 102W, as follows:

Functions of the VSRFVD

The VSRFVD has the following functions -

(a) to examine deaths suspected to have resulted from family violence;

(b) to identify risks and contributory factors associated with deaths resulting from family violence;

(c) to identify trends and patterns in deaths resulting from family violence;

(d) to identify trends and patterns in responses to family violence;

(e) to provide coroners with information obtained through the exercise of the VSRFVD's functions described in paragraphs (a), (b), (c) and (d).

21 The determination of the coroner published on 8 June 2023 set out some uncontroversial facts, by way of introduction:

1. On 17 January 2015, Mayumi Spencer was located deceased at an apartment in Caravel Lane, Docklands, where she resided with her husband, Peter Spencer. Mrs Spencer was 29 years old at the time of her death.
2. Mrs Spencer was born in Sapporo City, Hokkaido Prefecture, Japan on 27 August 1985 to Masami and Kimiyo Yoneda. She had one older brother.
3. Mrs Spencer was raised in Japan and graduated from Seibudai High School in Niiza City, Saitama Prefecture. After high school she completed a two-year vocational course at Kanda Institute of Foreign Languages.
4. Mrs Spencer met Dr Spencer when he was visiting Japan in 2006. They commenced a relationship in 2010 and Mrs Spencer travelled to Australia in October 2010 to live with Dr Spencer.
5. Mrs Spencer and Dr Spencer initially stayed in New South Wales for a brief period before moving to Victoria. The couple were married in Australia in December 2011.
6. Dr Spencer is a respiratory and sleep physician. Prior to her death, Mrs Spencer worked for Dr Spencer as his business manager, managing his reports, billing and invoicing.

22 The coroner then outlined the purpose of a coronial investigation and the procedure followed in investigating Ms Spencer's death.[12] He explained:[13]

This finding draws on the totality of the coronial investigation into the death of Mrs Spencer, including evidence contained in the coronial brief. Whilst I have reviewed all the material, I will only refer to that which is directly relevant to my findings or necessary for narrative clarity. In the coronial jurisdiction, facts must be established on the balance of probabilities.[14]

23 Next, the coroner explained that he was obliged under s 52(2) to conduct an inquest because he was unable to rule out the possibility that Ms Spencer's death may have been due to homicide.[15] He continued:[16]

Consistent with the judgment in Priest v West,[17] and mindful that the Act mandates that I must conduct an inquest, one of the purposes of the inquest is to investigate any evidence that may lead to the identification of the person (or persons) who may have caused the death and the circumstances that led to the death. I am required to make findings of fact and not express any judgment or evaluation of the legal effect of those findings.

24 The next three sections of the determination concerned the findings that the coroner was required to make under paras (a), (b), and (c) of s 67(1) of the Coroners Act.

25 In relation to the identity of the deceased pursuant to s 67(1)(a), the coroner recorded that Ms Spencer was visually identified by her husband Dr Spencer on 19 January 2015, and that identity was not in dispute.

26 In relation to the medical cause of death pursuant to s 67(1)(b), the coroner referred in detail to the findings of Dr Victoria Francis, the forensic pathologist who conducted the autopsy:

1. The post-mortem examination revealed:
   1. A bruise on Mrs Spencer's left forehead and the nasal bridge, in keeping with recent blunt force trauma. There was no evidence of patterning to these injuries.
   2. Red-brown bruises on the antecubital fossae, consistent with sites of injection.
   3. An irregular transverse sharp force injury over the midline neck extending in a posteroinferior direction and terminating at the superior left upper thyroid lobe. The injury penetrated the sternothyroid and sternohyoid muscles and was associated with extensive soft tissue haemorrhage and some subcutaneous emphysema. The trachea was intact. No damage to major neck vessels was identified. In particular, the carotid artery and internal and external jugular vein were intact.
   4. There were two incised injuries, involving the epidermis and dermis, that were associated with the penetrating neck injury.
   5. There was some diffuse strap muscle bruising but there was no evidence of neck compression. The laryngeal structures were intact. There were no petechiae.
   6. There was evidence of aspiration of gastric contents with material within the lung bronchi. There was no evidence of obstruction of the trachea or main bronchi and there was no evidence of significant inflammatory reaction within histological sections.
   7. There was a left pneumothorax with anterior rib fractures associated with some intercostal muscle haemorrhage. These changes are often seen in the setting of cardiopulmonary resuscitation.
   8. There were superficial, punctate injuries to the left breast upper inner quadrant. The significance of these injuries is uncertain.
   9. There was no evidence of significant injury sufficient to cause death.
   10. There was no evidence of significant natural disease.
2. Neuropathological examination showed no significant neuropathological abnormality, and no epileptogenic focus. It was noted that the absence of an identifiable epileptogenic focus does not preclude the presence of clinical seizure disorder, although Mrs Spencer had no history of clinical seizure disorder. It was also noted that seizure-like activity can occur in the setting of acute cerebral hypoxia and can also be seen associated with drug use. Seizure is also a recognized potential side effect of cocaine use.
3. Toxicological analysis of post-mortem samples identified the presence of cocaine and numerous cocaine metabolites. One of the metabolites, coca ethylene, is formed as a metabolite of both alcohol and cocaine use and is considered to exacerbate the toxic effects of cocaine. No alcohol was detected. Paracetamol and propranolol were also detected at levels consistent with therapeutic use.
4. It was noted that the interpretation of post-mortem toxicology is complicated by multiple factors, including post-mortem redistribution, idiosyncratic drug reactions, drug metabolism, the time interval between ingestion of the drug and death, and the potential for developing drug tolerance. It is possible for a person to develop tolerance to cocaine use.
5. The levels of cocaine found in Mrs Spencer's post-mortem samples were high.
6. It was noted that the physiological effects of cocaine use are similar to those seen in methamphetamine users. These effects include hypertension, increased body temperature, psychological effects, and cardiac arrhythmias. Propranolol is a medication that is commonly used for the treatment of high blood pressure and cardiac arrhythmias. There is no record that the propranolol was administered by the attending ambulance officers.
7. There were no external stigmata of chronic injection drug use. There was no pathological evidence of chronic injection drug use.
8. Dr Francis provided an opinion that the medical cause of death was 1(a) Cocaine Toxicity.

27 In relation to the circumstances in which the death occurred pursuant to s 67(1)(c), the coroner said:

1. On the evening of 16 January 2015, Mrs Spencer and Dr Spencer went out for dinner and then visited a bar in Melbourne with friends. They returned to their apartment at 1.10am the following morning.
2. In a statement provided to the coroner's investigator, Dr Spencer stated that in the early hours of the morning on 17 January 2015, at approximately 4.00am, Mrs Spencer had a fit and began vomiting. He attempted to resuscitate her. Whilst doing so, Mr Spencer formed the belief that there was a blockage in her throat and consequently attempted to perform a cricothyroidotomy on her using a kitchen knife and pen. This procedure was unsuccessful.
3. At 7.38am on 17 January 2015, Dr Spencer contacted emergency services and reported that Mrs Spencer was not breathing.
4. Ambulance Victoria paramedics arrived at 7.49am and observed Mrs Spencer to be lying on the floor in the lounge area. Dr Spencer appeared to be attempting cardiopulmonary resuscitation (CPR), although paramedics observed that compressions appeared to be "pretty gentle".
5. Mrs Spencer was declared deceased at the scene by the attending paramedics. Her temperature was taken and noted to be 33.2 degrees, which suggested that she had been deceased 'for a considerable amount of time.'
6. Cocaine was located inside a blood-stained hand vacuum in the apartment, and a bloodstained towel, syringes and plastic bags containing cocaine were found under some clothes inside the washing machine.
7. Dr Spencer was taken to the Melbourne West Police Station and was examined by a Forensic Physician employed by the Victorian Institute of Forensic Medicine. The Forensic Physician noted bilateral bruised veins that had the appearance of needle track marks on the inner elbow crease of both elbows. The bruised veins on the inner aspect of both elbows were noted to be evidence of intravenous access with needles.

28 Next, under the heading 'Further investigations and CPU review', the coroner set out details of his investigation of some family violence and medical matters.

29 In relation to the family violence investigation, the coroner recorded the following:

1. The relationship between Mrs Spencer and Dr Spencer met the definition of 'family member' as defined by the Family Violence Protection Act 2008 (Vic) (FVPA). Evidence available to the court suggests that Dr Spencer's perpetrated 'family violence' towards Mrs Spencer during their relationship.
2. As Mrs Spencer's death occurred in circumstances where there was an apparent history of family violence, I requested that the Coroners Prevention Unit (CPU) examine the circumstances of her death as part of the Victorian Systemic Review of Family Violence Deaths (VSRFVD).
3. Statements from friends and family of the Spencers, and service records from GenWest and the Consulate-General of Japan suggest that Dr Spencer perpetrated family violence towards Mrs Spencer during their relationship in the form of physical abuse, emotional and psychological abuse, and coercive and controlling behaviour. Mrs Spencer stated to friends that Dr Spencer had kicked her out of their house on several occasions late at night, punched her in the jaw, slapped her, pushed her over and hit her, sent her abusive messages calling her a 'piece of shit' and a 'whore', and on one occasion, had allegedly injected her with cocaine against her wishes.
4. It was also alleged that Dr Spencer made threats to kill Mrs Spencer and himself, exhibited jealous behaviour, monitored Mrs Spencer's email and Facebook and only permitted her to meet with her friends when he was present. On at least one occasion, Mrs Spencer advised a friend that she was scared of Dr Spencer.
5. In July 2012, following a family violence incident, Mrs Spencer moved out of the marital home and told Dr Spencer that she wanted a divorce. Friends and family of Mrs Spencer encouraged her to return home to Japan, but Mrs Spencer stated she was unable to as Mr Spencer had her passport, and she had no money.
6. Mrs Spencer contacted the Consulate-General of Japan for assistance in obtaining emergency travel documentation and reported to consulate staff that she wanted a divorce from her husband, and that she was scared of him because he had been violent towards her. The consulate commenced her application, referred Mrs Spencer to Victoria Police and provided her with the contact details of family violence support services. However, Mrs Spencer subsequently advised the consulate she had resolved matters with her husband and no longer needed to return to Japan.
7. During this time, Dr Spencer sent a series of abusive text messages to Mrs Spencer. When Mrs Spencer refused to contact him, he attended the workplace of one of Mrs Spencer's friends, allegedly telling her that he 'could not live without' Mrs Spencer and 'would kill [Mrs Spencer] and then himself.'
8. On 15 August 2012, Mrs Spencer applied for and obtained an interim Family Violence Intervention Order (FVIO) against Dr Spencer which included conditions that prohibited him from contacting or communicating with her. Mrs Spencer was supported through the court process by a family violence support service, GenWest. Mrs Spencer reported to GenWest that Dr Spencer was verbally, emotionally and psychologically abusive and had also physically abused her in the past although she had not reported this to the police. Mrs Spencer also indicated that she was scared of Dr Spencer.
9. The FVIO was served on Dr Spencer on 20 August 2012. Later that same day, Dr Spencer reportedly advised Mrs Spencer that he was going to suicide and had taken several medications with an intent to overdose. Mrs Spencer contacted police and Dr Spencer was transported to the Royal Melbourne Hospital for medical treatment and a mental health assessment.
10. After this incident Mrs Spencer resumed her relationship with Dr Spencer, telling a friend that she was scared to leave [Dr Spencer] in case he tried to kill himself again and that it was her fault [that] he had tried to commit suicide, and it was her fault that he has ruined his career.'
11. On 29 September 2012 at the Melbourne Magistrates' Court, Mrs Spencer's FVIO application was withdrawn on the basis that Dr Spencer had provided an undertaking to the court.
12. On 2 February 2013, a family violence report was made to Victoria Police by Dr Spencer. Dr Spencer reported that Mrs Spencer had taken his keys and credit card after he reportedly refused to discuss their marital issues. Police recorded the incident as a verbal dispute, with no threats or violence, and noted that neither party was in fear for their safety. Mr Spencer was recorded by police as the Affected Family Member (AFM) and Mrs Spencer as the Respondent. Formal referrals were provided to both parties, and Mrs Spencer was referred to GenWest.
13. GenWest contacted Mrs Spencer via telephone on 11 February 2013. Mrs Spencer advised them that she had withdrawn her FVIO against her husband and that she felt safe with him. Mrs Spencer indicated that she did not require further assistance from their service and knew the contact phone numbers for family violence support services and emergency services and would call them if needed. This was the last family violence service contact identified prior to Mrs Spencer's death.
14. In a statement to police, made after Mrs Spencer's death, Dr Spencer admitted that he and Mrs Spencer 'fought a lot at the start' of their relationship but said that, recently, the 'relationship had been really good'.
15. On 28 November 2022, Dr Spencer provided a number of statements and a response to the Court. The statements from close [friends] and associates provided by Dr Spencer purport to indicate observations of the couple being happy in the 18 months leading up to the fatal incident and that Mrs Spencer reported a desire to have children.

30 In relation to the medical investigation, the coroner noted:

1. The available evidence indicates that there was a significant delay between when Dr Spencer reportedly noticed that Mrs Spencer required medical attention (approximately 4.00am) and when he contacted emergency services (7.38am).
2. In a statement made following Mrs Spencer's death, Dr Spencer indicated that after he discovered Mrs Spencer in medical distress, he spent some time attempting to resuscitate her and attempting to perform a cricothyroidotomy[18] upon her. It is unclear how long he performed these actions for.
3. The Australian and New Zealand Council on Resuscitation Guidelines outline what to do when encountering an apparently critically unwell patient. One of the first actions outlined by the guidelines is to call for help.
4. In an expert opinion provided to the court, Dr Anthony Cross noted that even in a stressful situation, such as the one involved in this matter, which required a doctor to attempt resuscitation upon his own wife in a domestic setting, he:

'would expect a very early response (if not the first) to be the calling of an ambulance. More specifically, I would consider it reasonable, given Peter Spencer's medical training and concern for aspiration of vomitus to undertake the actions [Dr Spencer described] to attempt to clear the airway before calling an ambulance. However, these actions can be performed rapidly and should be abandoned quickly if not successful, leading to only a very short delay (less than a minute or two) before calling the ambulance.'

1. Based on the available evidence, I am unable to determine whether Mrs Spencer would have survived if emergency services had been called sooner.

31 The coroner then made some comments pursuant to s 67(3) of the Coroners Act:

1. Despite a thorough and comprehensive criminal investigation in relation to the circumstances of Mrs Spencer's death, no person or persons have been charged with an indictable offence in relation to Mrs Spencer's death.
2. It is important to note that it is not the purpose of a coronial investigation to investigate possible criminal conduct and compile a brief of evidence in preparation for a future criminal trial. Section 69 of the Act expressly prohibits a coroner from including in a finding or a comment, any statement that a person is or may be guilty of an offence.
3. After a careful review of the available evidence, I have formed the belief to the coronial standard that an indictable offence may have been committed in the circumstances of Mrs Spencer's death. The indictable offence I have formed the belief to the requisite standard is negligent manslaughter due to the delays in seeking urgent medical assistance and Dr Spencer's duty of care to Mrs Spencer upon discovering her in a state requiring urgent medical assistance.
4. Accordingly pursuant to section 49(1) of the Act, I direct that the Principal Registrar notify the Director of Public Prosecutions that I believe an indictable offence may have been committed in connection with Mrs Spencer's death.

32 The determination concluded with a summary of the coroner's findings:

1. Having held an inquest into the death of Mayumi Spencer, I make the following findings, pursuant to section 67(1) of the Act:
   1. the identity of the deceased was Mayumi Spencer, born 27 August 1985;
   2. the death occurred on 17 January 2015 at 514/5 Caravel Lane, Docklands, Victoria;
   3. the cause of death was (1)(a) Cocaine toxicity; and
   4. the death occurred in the circumstances described above.
2. Having considered all the available evidence, I am satisfied that no further investigation is required in this case.
3. I convey my sincere condolences to Mrs Spencer's family for their loss.

33 The coroner ordered that the finding be published on the Coroners Court website, and directed that copies be provided to Dr Spencer, the Australian Health Practitioner Regulation Authority (AHPRA), and the police officer who had assisted the coroner with the investigation.

34 Section 83 of the Coroners Act provides any person with a sufficient interest with a right of appeal against the findings of a coroner in respect of a death.[19] Such an appeal lies only on a question of law,[20] which includes the ground that the finding appealed is against the evidence and the weight of the evidence to such an extent that no reasonable coroner could have made the finding.[21]

35 Dr Spencer is clearly a person with a sufficient interest in the coroner's findings about the death of his wife. However, there are two important limitations on his right of appeal under s 83.

36 First, an appeal may only be brought against the findings of the coroner, as distinct from the coroner's comments or recommendations.[22] It follows that an appeal may not be brought against the recitation of relevant evidence and submissions in the coroner's determination in relation to the investigation, or in relation to the contents of the investigation brief.

37 There are a number of indications in the Coroners Act that the word 'finding' in s 83 is intended to refer only to a finding that must be made under ss 67(1) or 68,[23] as follows:

(a) Section 67 refers separately to findings, in s 67(1) and (2), and comments, in s 67(3). The distinction between a finding and a comment is maintained in s 69, in relation to statements regarding guilt.

(b) A distinction is also made between a finding under s 67(1) and a recommendation under s 72, including in the heading to Pt 6 of the Coroners Act.

(c) There are several references to findings made under ss 67 or 68. Section 70(2), in relation to the effect of an apology, refers to 'findings that are made under section 67 or 68'. Section 71 provides that a coroner is not required to make any of the findings specified in s 67 in certain circumstances.[24]

(d) The provisions concerning publication of findings and reports distinguish between the findings, comments, and recommendations made following an inquest.[25] Section 76 provides for the correction of errors in a 'finding, recommendation or comment of a coroner'.

(e) Section 83(3) sets a six month time limit for an appeal against a finding of a coroner under s 83(1), to be calculated from the day on which the determination - not the finding - of the coroner is made.

(f) Part 7 does not create a general right of appeal, but rather creates a number of rights of appeal from specific, confined determinations of the Coroners Court. This is a further indication that the right to appeal against a finding of a coroner in s 83(1) is not a general right of appeal against the coroner's comments or recommendations, or the contents of a determination generally.

38 The distinction between findings, comments, and recommendations is maintained in the Coroners Court Rules 2019 (Vic), which prescribe forms for a finding into death following inquest and a finding into death without inquest.[26] Relevantly here, r 63(1) requires the finding of a coroner following an inquest into a death to be in Form 37, as follows:[27]

IN THE MATTER OF THE DEATH OF [NAME OF DECEASED]

FINDING INTO DEATH FOLLOWING INQUEST

1. Having investigated the death of [name of deceased], and having held an inquest in relation to this death on [date of inquest] at [place of inquest], I find that:

(a) the identity of the deceased was [name of deceased], *born on/*aged [*date/*age];

(b) the death occurred *on or about/*on/*between [full date(s)] at [full address of place of death]; and

(c) the cause of death was [cause of death].

1. I find, under section 67(1)(c) of the Coroners Act 2008 ('the Act'), that the death occurred in the following circumstances:

[specify circumstances].

1. *I make the following comment(s) connected with the death under section 67(3) of the Act:

[specify comments]

1. *I make the following recommendation(s) connected with the death to [specify Minister, public statutory authority or entity] under section 72(2) of the Act:

[specify recommendations]

1. *I order that this finding not be published on the Internet/*I order that this finding be published on the Internet subject to the following conditions:

[specify conditions - e.g. redactions]

1. *I direct that a copy of this finding be provided to the following:

[please specify]

39 Counsel for the Coroners Court acknowledged that it can be difficult to differentiate between findings, comments, recommendations, and other things that appear in a coroner's report, and that the difficulty is something that bedevils coronial practice. Close adherence to the prescribed form may help to minimise confusion between a coroner's statutory findings under s 67(1) and the rest of the document that contains (and explains) those findings.

40 Second, an appeal against a coroner's findings lies only on a question of law. The existence of a question of law is both a condition of the Supreme Court's jurisdiction to hear and determine an appeal under s 83, and the subject matter of the appeal.[28]

41 An appeal on a question of law is not an opportunity to revisit the merits of a coroner's findings or the investigation that preceded them. Within the bounds of legal reasonableness, it is a matter for a coroner to determine what weight is to be given to the evidence before it, and to resolve any conflicts in that evidence. As Quigley J observed in Runacres v The Coroners Court of Victoria,[29] legal unreasonableness is a high bar for an appellant to reach.[30]

42 As a result, a person who brings an appeal under s 83 must confine their appeal to the findings made by the coroner, and identify clearly the questions of law that they seek to have determined by this Court. Dr Spencer did not conduct his appeal within those constraints. His amended notice of appeal filed 30 April 2024 identified seven wide ranging 'questions of law', with numerous sub-questions, directed to the whole of the coroner's investigation and determination. They are not confined to the coroner's findings, and refer to various matters that were not before the coroner. Many of the questions seek to raise arguments that Dr Spencer might have made to the coroner at the inquest, had he engaged fully with that process. Most significantly, the amended notice of appeal does not clearly identify questions of law that might be the subject of an appeal.

43 Noting that Dr Spencer did not have legal representation, the Coroners Court identified seven possible questions of law that might arise from Dr Spencer's amended notice of appeal, read as a whole. Dr Spencer firmly rejected this approach, stating in his reply submissions that it was inappropriate for the Coroners Court to amend his questions of law, and imploring the Court to disregard the Coroners Court's formulation of his questions.[31] I have therefore put the Coroners Court's possible questions of law aside, and have done my best to identify whether any question of law is raised in his amended notice of appeal, by reference to his written submissions and the submissions he made orally at the hearing of his appeal.

44 The first question raised in Dr Spencer's amended notice of appeal is 'directed at findings that I may have breached my duty of care and maybe committed negligent manslaughter or a homicide'. He referred in particular to paragraphs 13, 51, 52, and 55 of the coroner's determination, and identified the following sub-questions or grounds of appeal:

1.1 Did the coroner appropriately consider the evidence and facts regarding the circumstances involved in Mayumi's death in determining that "a homicide occurred" and "negligent manslaughter" may have occurred?

1.2 Does the coroner understand Mayumi suffered a sudden cardiac death from IV cocaine overdose and I performed CPR as per guidelines?

1.3 Does the coroner understand that I performed CPR and called for help, with no access to phones and despite the wealth of evidence that this is the appropriate course of action?

1.4 Did the coroner not understand that in a patient who has suffered a cardiac arrest and requires CPR, that performing CPR is the correct form of treatment and takes priority over other actions?

1.5 Is it appropriate for the Coroner to make findings 51, 13 and 55 despite guidelines not supporting claims made in the Medical investigation findings 48-52

1. Finding 50 : Referred to Guideline 3, footnoted as 28, which doesnt apply to Mayumis death, as it refers to an unconscious patient, not a patient who has had a cardiac arrest [Guideline 3]. The correct guideline to reference is Guideline 8 for a patient who has arrested.

2. Guideline 8 recommends CPR is the priority

1.6 Finding 50 referring to Guideline 3 ... misquoted the guideline 8 [guideline 8] which states CPR is the priority, and makes no [reference] to calling an ambulance first as claimed in [Finding 51]

1.7 Did the coroner error in finding 51 that states calling an ambulance is one of the first actions and does he understand this was not possible given the circumstances?

1.8 Did the coroner error, by not understanding or establishing that calling an ambulance does not change the limited outcome of survival in this situation?

1.9 Why did the corner ignore that I called for help, present in my statement and removed by police in questioning and as a result of removing neighbours statements?

1.10 Did the Coroner make an error, when finding a first responder has possible performed negligent manslaughter by performing CPR instead of stopping CPR and calling an ambulance?

1.11 Was the coroner wrong to not consider that his recommendation to call an ambulance does not improve survival chance for Mayumi Spencer, in making his assumptions of "breaching my duty of care and possible negligent manslaughter? [Findings 51, 52, 55]

45 This first question does not relate to any 'finding' made by the coroner in his determination. As noted above, it is only a coroner's statutory findings under s 67(1) that may be the subject of an appeal under s 83. In this case, the coroner's statutory findings were as follows:

(a) The finding required by s 67(1)(a), as to the identity of the deceased, was at [57.a] of the determination, with more detail given at [15]-[16];

(b) The finding required by s 67(1)(b), as to the cause of death, was at [57.c], with more detail given at [17]-[25]; and

(c) The findings required by s 67(1)(c), as to the circumstances in which Ms Spencer's death occurred, were set out at [26]-[32] under the heading 'Circumstances in which the death occurred pursuant to s.67(1)(c) of the Act'.

46 In relation to the paragraphs of the determination impugned by Dr Spencer in his first question:

(a) There was no finding at [13]. That paragraph formed part of the coroner's explanation why any inquest was required into Ms Spencer's death, which was that he had been unable to rule out the possibility that her death may have been due to homicide. The coroner went on to quote a passage from the judgment of the Court of Appeal in Priest v West,[32] which emphasised the obligation of a coroner to undertake investigations to identify any person who may have caused the death of the deceased.

(b) Paragraphs [51] and [52] both appeared under the heading 'Medical investigation'. Neither contained a finding. Paragraph [51] refers to expert opinion provided to the Coroners Court by Dr Anthony Cross, and quotes from that opinion. Paragraph [52] simply said that, based on the available evidence, the coroner was unable to determine whether Ms Spencer would have survived if emergency services had been called sooner.

(c) Paragraph [55] was a comment, as distinct from a finding. It was in a section of the determination headed 'Comments pursuant to section 67(3) of the Act'. It did not express any finding or conclusion, and was carefully worded so as to avoid making any statement that Dr Spencer was guilty of an offence. Rather, it expressed the coroner's 'belief' that the offence of negligent manslaughter 'may have been committed' in the circumstances of Ms Spencer's death. In the following paragraph, the coroner directed the principal registrar to notify the DPP of that belief, in accordance with s 49(1) of the Coroners Act.

47 Additionally, none of the sub-questions or grounds of appeal identifies a question of law. They concern matters of fact that were canvassed in the determination, without the coroner having reached any firm conclusions about them.

48 I appreciate that Dr Spencer is concerned about harm to his reputation that may result from the coroner's determination, including reference to evidence that was adverse to Dr Spencer. He is also concerned about action that is being taken by AHPRA in relation to his professional registration.[33] However, Dr Spencer's right of appeal under s 83 of the Coroners Act does not extend to sanitising the coroner's outline of the evidence that informed his findings and comments. I have reviewed the investigation brief, the further material obtained in the course of the coroner's investigation, and the additional material provided by Dr Spencer in November 2022. In my view, the coroner accurately and fairly summarised the relevant evidence in his determination. It was open to Dr Spencer to put more evidence before the coroner, and to make more comprehensive submissions, in response to the potential findings provided to him in September 2022. He had ample opportunity to do so, but did not make the most of that opportunity.

49 To the extent that Dr Spencer is concerned about the coroner's referral to the DPP, I note that it did not result in any charge against Dr Spencer. In October 2023, Victoria Police obtained a further expert opinion from Dr Narendra Gunja, an expert in clinical toxicology, forensic toxicology, and emergency medicine. Based on Dr Gunja's opinion, the Office of Public Prosecutions (OPP) advised Victoria Police that there was insufficient evidence from medical experts as to whether Ms Spencer would have survived if emergency services had been called sooner, and that they did not consider that there was a reasonable prospect of conviction. By April 2024, Victoria Police had determined not to pursue charges against Dr Spencer in relation to the death of Ms Spencer.

50 In short, Question 1 does not relate to the coroner's findings, and does not raise any question of law.

51 The second question raised in Dr Spencer's amended notice of appeal is 'Did the coroner consider the appropriate and correct medical evidence and facts regarding the nature and cause of death in forming his findings 13, 48-52, 55?'. There are eight sub‑questions or grounds of appeal related to the second question:

2.1 Did the Coroner understand that sudden cardiac death is not described by "medical distress" and is not described by unwellness"

2.2 Did the coroner factor in the findings, complicating factors of Mayumi's death which severely reduce survival chance?

Medical complications of:

1. prolonged seizure,

2. hypoxia,

3. other cocaine metabolites,

4. propranolol ingestion and

5. features and survivability of sudden cardiac death from IV cocaine.

Were given no considerations or [reference] reduced survivability and therefore findings of 13 and 55, whereby the Coroner lists a homicide and negligent manslaughter occurred can not be made.?

2.3 Are the findings of 13 and 55, whereby the Coroner lists a homicide and negligent manslaughter may have occurred , be made to the coronial standard if there is clear evidence of ignore these complicating factors, which were all presented as evidence in the Coronial brief?

2.4 Did the coroner [err] by describing Mayumi Spencer as being unwell and in medical distress, when in fact the evidence clearly shows she had arrested and was dead?

2.5 Did the [Coroner] make an incorrect finding by not investigating if emergency services if called earlier could actually have resulted in a better survival chance?

2.6 Did the coroner not understand the survival rates of complicated sudden cardiac death as he has provided no reference to this necessary evidence?

2.7 Did the [Coroner] not investigate why neighbours statements which confirmed I called for help, have been removed from the Coronial brief?

2.8 Can the finding 52 [Based on the available evidence, I am unable to determine whether Mrs Spencer would have survived if emergency services had been called sooner] be made when there is substantial evidence proving this was not possible?

52 Again, this question does not relate to any of the coroner's statutory findings, which are found at [15]-[32] and [57] of the determination. The coroner found under s 67(1)(b) of the Coroners Act that the cause of death was cocaine toxicity. As explained above, [13], [48]-[52], and [55] do not contain 'findings' from which an appeal lies under s 83 of the Coroners Act. The coroner made no finding that Ms Spencer's death was the result of homicide or negligent manslaughter.

53 Moreover, none of the matters that Dr Spencer seeks to raise in relation to the second question involves a question of law. They are all matters of evidence, concerning the coroner's description of evidence gathered in the medical investigation.

54 Dr Spencer now says that his wife died suddenly from a cardiac arrest caused by a cocaine overdose, and could not have been saved had he called emergency services at an earlier time. I understand that he is aggrieved that the coroner did not positively conclude that the delay in calling for an ambulance did not contribute to Ms Spencer's death.

55 However, I do not consider that the evidence available to the coroner compelled him to rule out the possibility that Ms Spencer may have survived if Dr Spencer had called an ambulance sooner. To the contrary, it was not at all clear from the evidence what time Ms Spencer died and whether she was still alive when Dr Spencer first went to her aid.

56 Dr Spencer was the only other person present in the apartment, and his evidence on this matter was critical. However, his accounts were inconsistent and changed over time.

(a) Dr Spencer initially told police that at about 6 or 7am he heard his wife making a choking noise, came out to find her having a seizure, performed CPR, and tried to clear her airways because she was vomiting.[34]

(b) Later that morning, Dr Spencer told another police officer that he first heard Ms Spencer scream and have a fit at around 4:30 to 5am, that she was vomiting, and that he tried to clear her mouth and perform CPR.[35]

(c) In his formal police statement, made on 17 January 2015, Dr Spencer said that he was going to bed at '4ish or after' when 'I heard Mayumi screaming and I ran out to the living room and she was having a fit'.[36] He described in some detail his efforts to resuscitate her, noting that 'she had a pulse, I felt it on her neck'.[37]

(d) Dr Spencer gave an entirely different account in November 2022, in his response to the coroner's potential findings. At that time, he stated 'I had passed out after hearing her have a seizure. When I came to, she had already passed away. I tried to resuscitate her, despite this.'[38]

57 In addition, Dr Spencer's early statements to police did not mention his own drug use, or that he was drug-affected when he realised his wife was having a seizure. In his response to the coroner in November 2022, Dr Spencer wrote:[39]

After being out with friends and having a nice evening we both used drugs.

We had used in different rooms, at the same time

I had heard her having a fit.

I then passed out as well as we had injected at the same time.

When I came to, I was obviously intoxicated. Mayumi had passed away.

This represented a very significant change to Dr Spencer's account of the sequence of events on the morning of his wife's death.

58 The coroner also had available to him the autopsy report of Dr Francis and a report of Dr Anthony Cross, emergency physician and intensivist. Neither report gave a definitive time of death. The opinions expressed by Dr Cross were based on the account given by Dr Spencer in his formal police statement, which indicated that Ms Spencer was still alive when he began his efforts to resuscitate her. Dr Cross's opinion was that it was reasonable for Dr Spencer first to take steps to clear Ms Spencer's airways, but that these actions should have caused only a very short delay (less than a minute or two) before calling an ambulance.

59 In this proceeding, Dr Spencer sought to rely on medical literature about cocaine-related fatalities and survival after a sudden cardiac arrest, in an attempt to demonstrate that his wife could not have survived had he called an ambulance sooner. He did not refer the coroner to any of this material in response to the potential findings provided to him in September 2022. The literature does not assist to resolve the inconsistencies between Dr Spencer's different accounts, or shed light on the sequence of events around the time of Ms Spencer's death.

60 Dr Spencer also referred to the opinion of Dr Gunja, provided to police in October 2023. This report post-dated the coroner's determination, and did not inform his findings. Dr Gunja's opinion does not support Dr Spencer's contention that Ms Spencer died of a sudden cardiac arrest and could not have been saved by prompt emergency care. To the contrary, he said:

Effective management of cocaine toxicity requires emergency care, usually provided by ambulance officers, and hospital staff in ED and ICU. The effects of severe toxicity on the brain and heart necessitate life-saving interventions that cannot be provided by laypersons, or without the correct equipment and drugs. Coma, aspiration and airway obstruction require intubation. Seizure activity requires anti-convulsant drugs. In the case of SPENCER, where she appeared to have aspirated and not breathing, immediate specialised intervention and prompt transportation to ED would have afforded her best chance of survival. Ambulance officers at the scene could have monitored the cardiac rhythm, commenced early effective cardiorespiratory resuscitation and administered life-saving drugs in the event or arrhythmia. They also would have had the equipment necessary to intubate and provide airway intervention.

In my opinion, based on the information provided to me, Mayumi SPENCER died from massive cocaine toxicity. The concentration found in her blood is suggestive of a large dose - the route of exposure cannot be determined from the PM levels alone. It is likely that SPENCER vomited and aspirated, leading to airway obstruction. This caused hypoxaemia and, together with high cocaine concentrations, would have led to seizure activity, asphyxiation and likely cardiac arrhythmia, progressing to cardiac arrest.

61 In summary, question 2 does not relate to the coroner's findings, and does not raise a question of law. Further, the evidence available to the coroner did not compel any conclusion or comment that Dr Spencer's delay in calling an ambulance made no difference to his wife's chance of survival, and nor does the additional evidence relied on in this proceeding compel that conclusion.

62 Dr Spencer's third question is 'Did the coroner make incorrect assumptions and findings by not establishing a time of death or asking for a time of death, a mandatory forensic observation, easily made on observable and presented evidence?'.

63 The Coroners Act does not require a coroner to make any finding about the time of death. It is unclear on what basis Dr Spencer asserts that this was a 'mandatory forensic observation'. The coroner's determination included the findings that had to be made under s 67(1), as to the identity of the deceased, the cause of death, and the circumstances in which the death occurred.

64 As noted at [55]-[57] above, the evidence available to the coroner did not enable him to reach any definitive conclusion about the time of death, let alone compel him to do so. This was in part because Dr Spencer's various accounts of what took place were unclear and inconsistent.

65 Question 3 does not relate to the coroner's findings, nor to any finding that the coroner was obliged to make. No question of law was raised in relation to the third question.

66 Dr Spencer's fourth question is whether the coroner made findings of family violence, despite the finding not being supported by evidence or fact. He objected to paragraphs [33]-[47] of the determination, and said that an appeal lay on a question of law because no reasonable coroner would make findings of family violence given the substantial evidence contradicting and opposing the findings. The following sub‑questions or grounds of appeal were set out in relation to the fourth question:

4.1 Did the coroner ignore that I have no history of family violence, yet made findings of family violence against me, failing the [Briginshaw] principle?

4.2 Did the Coroner ignore that there is substantial evidence I did not commit any form of family violence and findings of family violence appear to contradict the weight of evidence and probability?

4.3 Does a time gap of three years between vexatious and withdrawn claims of family violence and tragic death of Mayumi suggest any link between this death and family violence as claimed in finding 34?

4.4 Did the coroner ignore the fact that the only evidence of family violence is that I was the victim of family violence ? [finding 44]

4.5 Did the [coroner] ignore there is there is no credible evidence to make findings of family violence against me and on the weight of probabilities this did not occur?

4.6 Did the coroner ignore substantial evidence from close family contacts and past and previous partners that there was , is and has been no evidence of family violence. ?

4.7 Did the coroner make a finding that the death occurred linked to family violence however there is no evidence to prove this and this is significant evidence this is not correct?

67 The Coroners Court established the VSRFVD in 2009, to conduct investigations of family violence-related deaths and provide recommendations to reduce forms of family violence. The VSRFVD examines deaths that occur in the context of family violence or an identifiable history of family violence.[40]

68 In 2016, the Royal Commission into Family Violence found that the VSRFVD had 'the potential to address gaps in research and data collection to ensure that opportunities to prevent family violence-related deaths are identified and pursued'.[41] The Royal Commission recommended that the Victorian Government establish a legislative basis for the VSRFVD and provide adequate funding for the Coroners Court to perform the function.[42] In line with this recommendation, Pt 8, Div 1C was added to the Coroners Act in 2017.[43]

69 In this case, the coroner directed the Family Violence Team of the Coroners Prevention Unit to review the circumstances of Ms Spencer's death, as part of the VSRFVD. As the coroner explained at [34] of his determination, this was because the death occurred in circumstances where there was an apparent history of family violence.

70 The investigation found evidence of a history of family violence between Dr Spencer and Ms Spencer, which was outlined at [35]-[47] of the determination. Those paragraphs did not form part of the coroner's statutory findings, and there was no finding that Ms Spencer's death was the result of family violence. Dr Spencer is therefore not able to appeal against those paragraphs.

71 While I understand Dr Spencer's concerns that the evidence of family violence was included in the coroner's determination, I do not consider that those concerns amount to questions of law. In relation to the matters raised by Dr Spencer in his sub-questions:

(a) There was considerable evidence that Dr Spencer had engaged in family violence towards Ms Spencer. In my view, this evidence was summarised fairly and accurately by the coroner, without expressing any firm factual conclusions.

(b) It was simply not the case that the only evidence of family violence was that Dr Spencer was the victim of family violence.

(c) The coroner did not ignore the evidence that Dr Spencer had made a family violence report to police in February 2013, or evidence that the relationship had been good in the 18 months before Ms Spencer's death. These matters are noted at [44]-[47] of the determination. It is clear from those paragraphs that there were no reports or allegations of family violence after February 2013.

(d) The coroner did not make a finding that Ms Spencer's death was linked to family violence.

72 In his written and oral submissions to this Court, Dr Spencer attacked the credibility and reliability of some of the evidence of family violence recounted by the coroner. Most of these submissions were not made to the coroner during the inquest. Even if they had been, it was not necessary for the coroner to resolve them, because he did not make any finding that Ms Spencer's death was the result of family violence.

73 Question 4 does not relate to a finding of the coroner, and does not raise any question of law.

74 The fifth question in the amended notice of appeal is 'Did the Coroner make a redundant and unnecessary duplicative DPP review, as per findings 53 -56, which is against the Coroners Act?'. Specifically, Dr Spencer asked if the coroner had inappropriately made claims that he committed a homicide, at [13], and negligent manslaughter, at [55], despite not having the legal authority to do so.

75 This question covered similar ground to the first question. For the reasons given in relation to the first question, the fifth question does not relate to a finding of the coroner, and does not raise a question of law.

76 Dr Spencer's argument was that the notification to the DPP was duplicative and redundant, in circumstances where the police had already investigated and decided not to charge anyone in relation to Ms Spencer's death. He contended that the coroner had no power to make the notification, and that nothing had changed to warrant a second review by the DPP.

77 Dr Spencer correctly noted that s 69(1) of the Coroners Act prohibits a coroner from including in a finding or comment any statement that a person is, or may be, guilty of an offence. However, s 69(2) goes on to say that sub-s (1) does not apply to prevent the inclusion in a comment of a statement relating to a notification to the DPP under s 49(1) - which is exactly what the coroner did in this case. The coroner made no finding that Dr Spencer was, or might be, guilty of any offence. He made a comment at [55] that he had formed the belief to the coronial standard that an indictable offence may have been committed in the circumstances of Ms Spencer's death, and then directed a notification to the DPP under s 49(1).

78 Section 7(a) of the Coroners Act conveys Parliament's intention that a coroner should liaise with other investigative authorities to avoid unnecessary duplication of inquiries and investigations. Dr Spencer argued that the notification to the DPP was duplicative, contrary to s 7(a).

79 It is the case that the coronial investigation was preceded by a prolonged police investigation. In June 2015, the registrar of the Coroners Court wrote to Dr Spencer advising that the coroner had asked the police to investigate and provide a brief of evidence. The first investigation ended in March 2022, when the OPP advised that there were no reasonable prospects of conviction in relation to negligent manslaughter or unlawful and dangerous act manslaughter. The initial request to police to investigate was not a notification to the DPP under s 49(1) of the Coroners Act. Equally, the notification to the DPP was not a request by the Coroners Court for a further police investigation.

80 For the reasons set out in his determination, the coroner had formed the belief that an indictable offence may have been committed in connection with Ms Spencer's death. Section 49(1) obliged the Coroners Court to notify the DPP of that belief. It was a matter for the DPP what, if any, steps to take after receiving the notification. As already noted, after further investigation by police the DPP decided not to bring any charge in relation to Ms Spencer's death.[44]

81 Question 5 does not raise a question of law in relation to a finding of the coroner. It concerns a comment made by the coroner in accordance with s 67(3) of the Coroners Act, and a notification to the DPP under s 49(1).

82 Dr Spencer's sixth question is 'Did the Coroner make his findings despite obvious and substantial evidence of Perjury, Removal of evidence by the police and forensic pathologist which was essential to forming fact and evidence?'. He argued that no reasonable judge would make the findings in paragraphs [1]-[56] of the determination in circumstances of obvious removal of evidence. He said that it was evident from simply reading the coronial brief that evidence had been removed, relating in particular to clear evidence of:

1: neighbours statements removed that I called for help.

2: removal of time of death allowing false narrative of unwell patient

3: inadequate medical evidence allowing false narrative of events

4: removal of forensic observations allowing false narrative of events.

5: misquoting of established CPR guidelines

6: clear evidence of perjury by witnesses alleging Family violence

83 In his reply submissions, Dr Spencer added three more matters:

7: claiming Genwest had provided evidence of FV but none was presented in the Coronial brief.

8: failing to present FV hearing transcript, were FVO was withdrawn and noted to be vexatious and false.

9: clear evidence of FV testimony either not supporting the findings or being contradicted.

84 Dr Spencer's submissions on this question were difficult to follow. I could discern no basis in fact for his claims that exculpatory evidence had been deliberately and dishonestly removed from the coronial brief in an attempt to frame him. In any event, none of the evidence that he claimed was missing could have affected the coroner's statutory findings, including his findings as to the circumstances in which Ms Spencer's death occurred.[45]

85 Dr Spencer's seventh question is whether the coroner had the power or legal authority to make claims that Dr Spencer 'possibly committed homicide [finding 13] or negligent manslaughter [finding 55]'. In his sub-questions, he asks:

7.1 Did the coroner obey all aspects of the law in making the decisions 13, 55 ?

7.2 Did the coroner consider everything that was legally relevant in making findings 13, 55 ?

7.3 Did the Coroner have the power to make the decision that I am possibly committed homicide or negligent manslaughter, in light of a poorly conducted inquest that ignored medical facts and the circumstances of death and removal of evidence ?

7.4 What evidence supports the finding 13 that a homicide occurred?

86 This question raised the same issues as the first and fifth questions. For the reasons given in relation to those questions, the seventh question does not relate to a finding of the coroner and does not raise a question of law.[46]

87 Dr Spencer represented himself in this proceeding. While he is an intelligent and articulate man, like other litigants in person 'he lacked two critical qualities possessed by competent lawyers: professional skill and ability, and objectivity'.[47] The Coroners Court attempted to redress this disadvantage by reformulating the questions in the amended notice of appeal as possible questions of law, but Dr Spencer rejected that assistance.[48] During his oral submissions at the trial, I tried to draw his attention to relevant matters, in particular the limited nature of an appeal under s 83 of the Coroners Act and the distinction between the coroner's findings and other parts of the determination. Dr Spencer did not address those matters, preferring to persist with his prepared submission.

88 Dr Spencer's position of disadvantage was evident from the voluminous material he filed in support of his appeal, much of which was repetitive, irrelevant, or misconceived. I have read and considered all of the material relied on by Dr Spencer in this proceeding, and his oral submissions at trial, although I have not mentioned every matter he raised in these reasons.

89 There are two matters raised in Dr Spencer's submissions that require particular comment.

90 First, Dr Spencer purported to bring his appeal under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) and under common law. The ADJR Act applies to decisions made under Commonwealth enactments, and has no application to a determination of the Coroners Court made under a Victorian statute. The common law does not provide any right of appeal from a coroner's findings, which is why specific statutory rights of appeal are provided in the Coroners Act.

91 Second, Dr Spencer made liberal accusations of perjury, fraud, corruption, and other misconduct against various people who had been involved in or given evidence to the police investigation and the coronial investigation. Most of these accusations were irrelevant to the coroner's findings and, as far as I could tell, none was supported by any cogent evidence. The people concerned were not parties to the proceeding and had no opportunity to respond to the serious allegations that were made against them. At the end of the trial, I reserved my judgment with the caveat that, should I come to the view that any of those people should be heard, I would give them that opportunity before delivering judgment. As will be evident from these reasons, it was not necessary to take that course.

93 Given that the Coroners Court adopted a neutral position in relation to the appeal, and made submissions with a view to assisting the Court, I do not propose to make any order as to costs.

[1] Finding into Death Following Inquest: Inquest into the Death of Mayumi Spencer (Coroners Court of Victoria, Judge Cain, State Coroner, 8 June 2023) (Determination). The Coroner published an amended determination on 13 July 2023. The only change was to the cover page, which was amended to correct the delivery date and the hearing dates. Although the document is titled 'Finding', I refer to it as the Determination to distinguish it from the statutory findings of the Coroner under s 67(1) of the Coroners Act 2008 (Vic).

[2] See [21]-[33] below.

[3] Consistent with the principles in R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13.

[4] Coroners Act, s 89.

[5] Coroners Act, ss 3(1) (definition of 'coroner'), 91, 95A.

[6] Coroners Act, s 4(2)(a).

[7] On 26 April 2023, Dr Spencer applied under the Open Courts Act 2013 (Vic) for a suppression order in relation to the Coroner's findings. The application was opposed by three media organisations. On 7 June 2023, the Coroner dismissed the application, and gave reasons for that decision in a written ruling. That ruling is not the subject of this appeal.

[8] Part 7 provides for an appeal in relation to a determination that a death is not a reportable death (s 78); appeals in relation to an autopsy (s 79); an appeal in relation to a determination of a coroner not to investigate a fire (s 80); an appeal in relation to exhumation (s 81); an appeal in relation to a determination not to hold an inquest (s 82); an appeal against the findings of a coroner (s 83); an appeal against a refusal by the Coroners Court to re-open an investigation (s 84); and an appeal against an order to release a body (s 85).

[9] Section 87A(1) provides that an appeal other than on a question of law may be made under s 82(1), in respect of a decision by a coroner not to hold an inquest into a death, or s 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 the senior next of kin of the deceased or a person with sufficient interest. In either case, the Supreme Court may allow an appeal under s 87A(1) if satisfied that it is necessary or desirable in the interests of justice to do so: s 87A(2).

[10] Coroners Act, ss 3(1) (definition of 'VSRFVD'), 102U.

[11] Coroners Act, s 102V.

[14] The Coroner noted that this was subject to the principles enunciated in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, the effect of which is that coroners should not make adverse findings against, or comments about, individuals unless the evidence provides a comfortable level of satisfaction as to those matters taking into account the consequences of such findings or comments.

[17] Priest v West [2012] VSCA 327; (2012) 40 VR 521, [9].

[18] In a footnote, the Coroner noted that a cricothyrotomy is an incision made through the skin and cricothyroid membrane to establish a patent airway during certain life-threatening situations, such as airway obstruction by a foreign body, angioedema, or massive facial trauma.

[19] See [18] above.

[20] Coroners Act, s 87(1).

[21] Coroners Act, s 87(1A).

[22] Runacres v The Coroners Court of Victoria [2024] VSC 304, [14], [321]-[322] (Runacres).

[23] Section 68 sets out the findings that must be made, if possible, by a coroner investigating a fire.

[24] See also Sch 1, s 7(2).

[25] Coroners Act, ss 73, 105(1)(i).

[26] Coroners Court Rules 2019 (Vic), s 63.

[28] Bourke v Coroners Court [2015] VSC 418, [21]; Glascott v Coroners Court of Victoria [2017] VSC 328, [19]; Trotta v The Coroners Court of Victoria & Anor [2022] VSC 70, [39].

[29] [2024] VSC 304.

[30] Runacres, [105]-[118], in particular [109].

[31] Appellant's reply submissions filed 24 June 2024, 44.

[32] [2012] VSCA 327; (2012) 40 VR 521, [9].

[33] Dr Spencer's registration was suspended by the Medical Board in July 2023, a decision that was recently affirmed by the Victorian Civil and Administrative Tribunal: see Spencer v Medical Board of Australia (Review and Regulation) [2024] VCAT 833.

[34] Statement of Senior Constable Laura Turley dated 17 January 2015 (Court Book, 529-33).

[35] Statement of Acting Inspector Robert Milliken dated 26 January 2021 (Court Book, 542-8).

[36] Statement of Peter Spencer dated 17 January 2015, [18]-[19] (Court Book, 633).

[37] Statement of Peter Spencer dated 17 January 2015, [20] (Court Book, 633).

[38] Response to request for information for coronial summary inquest dated 25 November 2022 (Court Book, 779).

[39] Response to request for information for coronial summary inquest dated 25 November 2022 (Court Book, 783).

[40] Coroners Court of Victoria, Victorian Systemic Review of Family Violence Deaths: First Report (Report, November 2012), 7.

[41] Royal Commission into Family Violence: Report and Recommendations (Final Report, March 2016), vol IV, 238.

[43] Family Violence Protection Amendment Act 2017 (Vic), ss 42-45. See [20] above.

[44] See [49] above.

[45] These findings are set out at [27] above.

[46] See [44]-[50] and [74]-[81] above.

[47] Tomasevic v Travaglini [2007] VSC 337; (2007) 17 VR 100, [79].