Appellants v Respondent

2 Ms Kisielis' death was the subject of a coronial investigation, which resulted in a Finding Into Death Without Inquest by the Coroner, Magistrate Parkinson, on 8 March 2013 (the Finding).

3 In the course of her decision, the Coroner made two specific findings concerning Ms Kisielis' riding of her motorcycle, which were then the subject of an application under s 77 of the Coroners Court Act 2008 (Vic) (the Act) to have those findings set aside. That application was refused by the State Coroner, his Honour Judge Gray, on 12 August 2015.

4 Werner and Cecile Hecht, Ms Kisielis' parents, now appeal that decision.

5 When the appeal initially came on in December 2015 before an associate justice, the parties had reached agreement as to the disposition of the appeal: by allowing it and deleting the two impugned findings. However, the Associate Justice declined to make the orders as his Honour was concerned as to both the Court's jurisdiction to entertain the appeal and whether procedural fairness had been afforded to Mr Amungama. His Honour referred the appeal to a trial division judge.

(a) that the determination the State Coroner made on 12 August 2015 not to set aside the findings or to re-open the investigation into the death of Samantha Kisielis be set aside on the ground that it is desirable in the interests of justice to do so; and

(b) that the following findings of the Coroner of 8 March 2013 be set aside: the second sentence of paragraph 4; the second and third sentences of paragraph 21.

7 I was satisfied that the Court had jurisdiction to deal with the appeal. I also concluded that in the interests of justice the appeal should be allowed and the impugned findings be set aside.

8 I gave oral reasons at the time of reaching that decision and now, as promised, I explain my reasoning in greater detail.

9 Section 1 sets out the purposes of the Act, which 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; and

(d) to establish the Coroners Court of Victoria as a specialist inquisitorial court; and

(e) to establish the Coronial Council of Victoria; and

(f) to amend the Coroners Act 1985 -

(i) to repeal the provisions relating to coroners; and

(ii) to rename that Act as the Victorian Institute of Forensic Medicine Act 1985; and

(g) to make consequential amendments to other Acts.

10 Section 3 contains the definition of 'senior next of kin' in relation to a deceased person as:

(a) if the person, immediately before death had a spouse or domestic partner - the spouse or domestic partner; or

(b) if the person immediately before death did not have a spouse or domestic partner or if the spouse or domestic partner is not available - a son or daughter of or over the age of 18 years; or

(c) if a spouse, domestic partner, son or daughter is not available - a parent; or

(d) if a spouse, domestic partner, son, daughter or parent is not available - a sibling who is of or over the age of 18 years; or

(e) if a spouse, domestic partner, son, daughter, parent or sibling is not available - a person named in the will as an executor; or

(f) if a spouse, domestic partner, son, daughter, parent, sibling or executor is not available - a person who, immediately before the death, was a personal representative of the deceased;

(g) if a spouse, domestic partner, son, daughter, parent, sibling, executor or personal representative is not available - a person determined to be the senior next of kin under subsection (3).

11 Section 8 is headed 'Objectives' and provides the factors to be considered for the purposes of the 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.

12 Section 9 speaks to both fairness and efficiency:

The coronial system should operate in a fair and efficient manner.

13 Part 5 of the Act then sets out the nature of inquests which may, or must, be held. Section 52(1) is the enabling section which empowers the coroner to hold an inquest:

(1) A coroner may hold an inquest into any death that the coroner is investigating.

14 Section 52(2) mandates the holding of an inquest:

(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.

15 Section 52(3) sets out the circumstances in which a coroner can decline to hold an inquest:

(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.

16 Section 77 is headed 'Re-opening an investigation':

(1) A person may apply to the Coroners Court for an order that some or all of the findings of a coroner after an investigation (whether or not an inquest has been held) should be set aside.

(2) Subject to subsection (3), the Coroners Court may order that -

(a) some or all of the findings be set aside; and

(b) if the Court considers it appropriate, that the investigation be re- opened.

(3) The Coroners Court may only make an order under subsection (2) if it is satisfied that -

(a) there are new facts and circumstances; and

(b) it is appropriate to re-open the investigation.

(4) For the purposes of an application made under this section, the Coroners Court must be constituted by the coroner who conducted the original investigation unless -

(a) the coroner who conducted the original investigation no longer holds the office of coroner; or

(b) there are special circumstances.

It was this section that was relied upon by Mr and Mrs Hecht in seeking to have the specific findings of the Coroner set aside by the State Coroner.

18 Section 84 permits a person to appeal against a refusal by the Coroners Court to re-open the investigation:

(1) If the Coroners Court refuses to re-open an investigation under section 77, a person who requested the Coroners Court to set aside some or all of the findings of the coroner may appeal against the Court'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 refusal by the Coroners Court.

19 It is this provision that provides Mr and Mrs Hecht with the right of appeal to this Court.

20 Sections 87 and 87A then deal with the nature of any appeal to this Court. Section 87 reads as follows:

(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 rehearing 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.

21 Section 87A came into force on 1 January 2015 and reads as follows:

(1) An appeal to the Supreme Court other than on a question of law may be made under 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.

In effect it provides an additional ground, to that provided under s 87, upon which an appeal against a refusal to re-open an investigation can be allowed: when it is necessary or desirable in the interest of justice to do so.

22 At 7:40am on Wednesday 19 October 2011, Ms Kisielis left her home at Delahey to travel to work on her motorcycle.

23 Following her usual route to work, Ms Kisielis entered Frost Drive in Delahey travelling east towards the intersection of Longfellow Drive.

24 At the same time, Mr Amungama, driving a Toyota Hilux utility, slowed for speed bumps and approached the intersection slowly. He says that he had his right indicator on while turning right into Longfellow Drive.

25 Ms Kisielis continued in an easterly direction at approximately 50-60kph. As Mr Amungama started to turn right, Ms Kisielis' motorcycle clipped the front driver's side of the Toyota, causing her bike to 'highside' - which essentially means that it ejected Ms Kisielis from the bike. She slid across Longfellow Drive and hit her head on a picket fence nearby. She died within a short time as a result of her injuries.

26 The Inquest brief included the following information:

(a) summary including Ms Kisielis' background and the events of 19 October 2011;

(b) copy of DVD Recorded Witness Statement withMr Amungama on 19 October 2011;

(c) copy of video recording of witness interview with Mr Amungama on 20 October 2011;

(g) colour print out from Australian Government Geoscience of moon and sun position results dated 19 October 2011; and

27 In relation to events on 19 October 2011, there were statements from:

(b) Mr Matthew O'Donnell - another driver at the scene of the accident;

(c) Mr Paul Antonello - Senior Constable of Police;

(d) Mr Peter Michael Holland - Detective Leading Senior Constable of Police;

(e) Mr Robert William Hay - Detective Senior Constable of Police;

(g) Ms Natalie McFarlane - Leading Senior Constable of Police; and

(h) Mr Jason Palmer - Sergeant of Police at Sunshine Police Station.

28 On 8 March 2013, Coroner Parkinson delivered the Finding. Her Honour was satisfied that, having considered all of the evidence before her, no further investigation was required. The two findings in issue are as follows:

At approximately 7.45am, Mr Chrisanta Amungama was driving his white Toyota Hilux motor vehicle in Frost Drive, Delahey. The vehicle was positioned towards the centre of the roadway, with right turn indicators operating and he commenced to turn right into Longfellow Drive, Delahey. As the vehicle turned, Ms Kisielis' motorbike is reported to have attempted a complete right hand turn at the same location by overtaking the vehicle on the inside.

I am satisfied having considered all of the evidence before me that no further investigation is required. It appears that Ms Kisielis misjudged or miscalculated the space or distance available to her for the overtaking manoeuvre. Whilst the manoeuvre of itself appears to be an unusual riding action for Ms Kisielis, there is no evidence that the collision was intentional.

29 In effect, there were two aspects of these findings that went to Ms Kisielis' riding of her motorcycle:

(a) that the right hand indicator on Mr Amungama's vehicle was operating; and

(b) that Ms Kisielis misjudged the overtaking manoeuvre.

30 On 22 May 2015, Mr and Mrs Hecht made an application under s 77 of the Act to set aside the Finding. The application included:

(a) details of orders sought (i.e. to set aside paragraphs 4 and 21 of the Finding);

(b) reason(s) for the application, which included a series of submissions criticising the basis for the two impugned findings; and

(c) a report by Lyonswood Investigations and Forensic Group containing an accident crash analysis.

31 By Notice of Appeal dated 9 September 2015, Mr and Mrs Hecht appealed the decision of the State Coroner alleging that his Honour:

(a) erred in determining that the application made under s 77 of the Act did not satisfy the requirement under s 77(3)(a) of the Act because there were no new facts and circumstances;

(b) erred in determining that it was unnecessary for the purposes of the application to consider whether it was appropriate to re-open the investigation pursuant to s 77(3)(b) of the Act;

(d) erred in concluding that the impugned paragraphs of the Finding should not be set aside.

32 As I mentioned earlier, on 3 December 2015 the parties submitted a joint memorandum seeking an order that the Court set aside the State Coroner's decision on the basis that it was in the interests of justice to do so under s 87A of the Act. It also sought for the matter to be remitted to the Coroners Court to re-open the investigation.

33 On 10 December 2015, in a hearing before Mukhtar AsJ, consent orders were submitted to set aside the findings. His Honour declined to make the orders and referred the appeal to the Trial Division.

34 The Associate Justice was concerned as to whether an appeal could be brought under s 87A - the interests of justice point. His Honour noted in Other Matters in his orders of 10 December 2015:

It appears to the Court that s 87A is concerned only with a refusal to reopen an investigation into a death. In this case, the State Coroner refused the application to set aside certain findings. Any challenge to that refusal is on a question of law under s 87. It cannot truly be said that the State Coroner also refused to reopen an investigation into the death. It was not necessary for his Honour to even consider reopening an investigation because under s 77(2), having decided no finding should be set aside, it was not necessary to consider whether the investigation ought to be reopened.

35 With respect, I disagree with his Honour's analysis. Both ss 84 and 87A require, as a condition to an appeal of this type, a decision by the Coroners Court not to re-open the investigation. Whilst it is correct that the application under s 77 was to set aside the findings of the Coroner, as is apparent from his reasons, the State Coroner regarded the application as being made on a joint basis - i.e. to set aside the findings and to determine whether to re-open the investigation. His orders make this abundantly clear:

The findings not be set aside as I am not satisfied that there are new facts and circumstances and it is not appropriate to reopen the investigation pursuant to s 77(3) of the Coroners Act 2008.[1]

36 There is no scope to go beyond the clear terms of that order, which speaks for itself. The State Coroner declined to re-open the investigation and thus the pre-condition of both ss 84 and 87A (set out at [17] and [18] above) was satisfied.

37 Indeed, given the terms of s 77(3) (set out at [16] above) it seems clear that it is a precondition to any order being made under s 77(2) that a decision must be made by a coroner as to whether or not to re-open the investigation (as a matter of discretion) in addition to the coroner being satisfied as to the existence of new facts and circumstances - indeed, it may well be that the State Coroner proceeded on this basis notwithstanding that he ultimately rejected the application.

38 It is not necessary to consider this issue further. Whatever the position, I am satisfied that for the purpose of s 87A (and for that matter s 84) his Honour refused to re-open the investigation and that therefore an appeal by either the senior next of kin of the deceased (Mr Kisielis) or a person with sufficient interest (Mr and Mrs Hecht) was open under s 87A.

39 Mr and Mrs Hecht assert that there were new facts and circumstances which should have persuaded the State Coroner to set aside the findings, namely:

(a) submissions made by Mr and Mrs Hecht which had not been considered by the Coroner (a new circumstance);

(b) an expert opinion proffered about other potential explanations concerning the operation of the indicator lights (a new fact); and

(c) that the parents of Ms Kisielis were now contesting the finding made by Coroner Parkinson set out in paragraph [29(a)].

40 In my opinion, there are a number of considerations which dictate that the appeal be allowed under s 87A.

1. The first (and an anterior point) is whether the correct test was posed by the State Coroner in determining whether the provisions of s 77(2) as to new facts and circumstances were satisfied.

The new facts or circumstances must be such that a previously accepted fact, material to findings regarding the identity of the deceased, the cause of death and/or other pertinent circumstances surrounding the death under investigation, is so altered that the relative finding may be unsustainable.[2]

The reference cited by his Honour for this proposition is a decision of Randall AsJ in Mortimer v West (in his role as Deputy State Coroner).[3] However, that decision does not state the appropriate test; rather, it recites the test that was applied by the Deputy State Coroner at the coronial inquest under appeal.

1. Mr and Mrs Hecht argue that the expression 'new facts and circumstances' ought to be given a broad, common-sense definition, consistent with the Explanatory Memorandum for the Coroners Bill 2008:

The reference to new facts and circumstances encompasses facts and circumstances that are new to the investigation. These facts may have been known to people during the investigation, but they were not known to the coroner conducting the investigation.[4]

44 This argument should be accepted. With respect to both the Deputy State Coroner and the State Coroner (both of whom have great experience and understanding of the coronial processes), I cannot agree that the test applied by the State Coroner in determining this review under s 77(2) was appropriate.

45 There is no warrant for importing a condition referable to either sustainability or a material alteration of a previous understanding of the facts. The question, rather, is that posed by the words of the statute - whether there are new facts and circumstances and, if so, do they justify a reopening of the investigation. It is no more and no less than those two basic propositions.

46 Each case will, as Parliament noted, turn on its own facts and circumstances and it is not open to this Court or the Coroners Court to read into the provision of s 77(3) a test which the legislature has not imposed. This error, in my view, is enough to allow the appeal under s 87A.[5]

47 Second, the essence of the impugned findings of the coroner was that Mr Amungama used an indicator and that Ms Kisielis erred in deciding to overtake his vehicle. The untested evidence of Mr Amungama was found as a fact (rather than an assertion) by the Coroner. Moreover, a state of mind was attributed to the deceased - that she was trying to overtake and misjudged the distance.

48 There was no issue that notice of the potential of a finding adverse to Ms Kisielis had not been given to the senior next of kin (as defined under the Act), Mr Kisielis, or to Ms Kisielis' parents.

49 In these circumstances, notwithstanding that they were not a 'senior next of kin', the desire of Mr and Mrs Hecht to put submissions and adduce further evidence constituted a new circumstance. Given that neither they nor their son-in-law had been given the chance to do so previously, this was a 'circumstance' which justified such a course. The impugned findings related to the conduct of Mr and Mrs Hecht's daughter in contributing to her own death and the Hechts were patently interested in placing material before the Coroner. Moreover, the evidence they wished to rely upon (from the expert witness as to the operation of the indicator) went directly to the issue in respect of which they had not be given an opportunity to be heard on.

50 Given this situation, it is in the interest of justice on this appeal to set aside the impugned findings of the coroners.

51 Thirdly, and this is a corollary of the second point, I consider that there was a denial of procedural fairness at the initial stage in that the Coroner reached her findings without alerting (at a minimum), Mr Kisielis, as the senior next of kin, to the fact that there was a potential for an adverse finding and inviting submissions prior to delivering her ruling.

52 The Coroners Court is obliged under s 21 of the Act to provide the 'senior next of kin' with 'prescribed information'.

53 Regulation 10 sets out the prescribed information that 'must be provided by the Principal Registrar' to the senior next of kin. It includes the following:

(c) what the purpose of a coronial investigation is including -

(i) what a coroner must find, if possible;

(ii) that recommendations might be made by a coroner following a coronial investigation...

(iii) that the findings, comments and recommendations made following an inquest may be published on the Internet in accordance with the Act.

54 The evidence on this application (for good reason) did not descend into detail what had or had not been provided to Mr Kisielis under regulation 10. However, what is clear is that neither the regulations nor the Act endeavour to circumscribe the circumstances in which an opportunity should be afforded, at the least, to the senior next of kin to make submissions.

55 Mason J in the seminal decision of Kioa v West said as to procedural fairness and the "hearing rule":

It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to made against him and to be given an opportunity of replying to it.[6]

56 More directly to the point, in Annetts v McCann a coroner's obligation to afford procedural fairness to the next of kin was explored by the High Court in some depth. [7] The Annetts had to go to the High Court on two occasions in relation to the tragic death of their son, a jackaroo who died in remote Western Australia.[8] During the course of an inquest into the death of their son, Mr and Mrs Annetts wished to put submissions to the Coroner, Mr McCann SM. The Coroner denied Mr and Mrs Annetts the opportunity to do so relying upon certain provisions of the Coroners Act 1920 (WA).

57 The two relevant parts of the High Court's ruling are as follows:

It can now be taken as settled that, where a statute confers powers upon a public official to destroy, defeat or prejudice a person's rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment.[9]

58 Then critically as to the right of the parents to be heard and their consequential ability to make submissions to the Coroner the High Court said as follows:

The judgments in the Full Court appear to assume that the appellants had no right to be heard because nothing in the evidence suggested that anything adverse to them personally could emerge from the Coroner's finding or rider. But this assumption overlooks two matters. First, the appellants have been granted - and properly granted - representation at the Coronial Inquiry. The grant of representation did more than recognise the appellant's personal interest in the performance of the duties which the law imposes on the Coroner... It also created a legitimate expectation that the Coroner would not make any finding adverse to the interests which they represent without giving them the opportunity to be heard in opposition to that finding. Secondly, the interests which they represent include the protection of the reputation of their deceased son. It does not matter, except for the purposes of jurisprudential analysis, whether that interest is classified as the interest of the deceased or the interest of the appellants as parents for the deceased or both. Whichever analysis is adopted, the appellants have a common law right to be heard in opposition to any potential adverse finding in relation to themselves and the deceased unless by express terms or necessary implication the Act has excluded their common law right to be heard.[10]

59 So, in this case once the Coroner was aware that she may make an adverse finding against Ms Kisielis the obligation to provide an opportunity for Mr Kisielis to be heard was triggered. As I noted earlier, there is nothing in the Act or the regulations made under it (including regulation 10) which endeavours to circumscribe that obligation.

60 Procedural fairness is protean in nature and depends upon the circumstances of the hearing and the prospective decision. [11] Here, as Annetts demonstrates, there was a legitimate expectation on the part of Mr Kisielis that he would be given an opportunity to make submissions.

61 As I stated earlier, whilst I accept that Mr and Mrs Hecht are not the 'senior next of kin', as defined by s 3 of the Act, they had standing to bring the application under s 77 and to argue on appeal that their son-in-law (who is the relevant senior next of kin) should have been given notice of the potential adverse finding against his late wife. This is not an arid issue as it is highly likely that if notice had been given to Mr Kisielis then the Hechts would have filed submissions and further material as they did when they became aware of the Coroner's decision and sought review under s 77.

62 So, consistent with what was said in Annetts, where there was a potential for an adverse finding against Ms Kisielis then it was, in my view, a denial of procedural fairness, that such a finding could be made by the Coroner without giving the 'senior next of kin', as defined by the Act, an opportunity to make submissions concerning that putative finding.

63 The end result is that for these reasons I am satisfied that it is in the interests of justice that the appeal under s 87A against the State Coroner's decision not to re-open the inquest and to set aside the two impugned findings be allowed.

64 I am satisfied that the appeal is competent under ss 84 and 87A of the Act.

65 I am also satisfied that, pursuant to s 87A of the Act, it is in the interests of justice to set aside the two relevant findings.

66 Section 87(4) permits this Court to make 'any order it thinks appropriate'. Given the parties had agreed as to the form of order when before the Associate Justice, I determined to make orders generally consistent with the consent orders submitted in December 2015. Accordingly, I made the following orders:

(a) Pursuant to ss 87 and 87A of the Act, the determination that the State Coroner made on 12 August 2015 not to set aside the findings or to re-open the investigation into the death of Samantha Kisielis be set aside on the ground that it is desirable in the interests of justice to do so.

(b) Pursuant to s 87(4) of the Act, the following findings of the Coroner of 8 March 2013 be set aside: the second sentence of paragraph 4; the second and third sentences of paragraph 21.

[3] [2015] VSC 150.

[5] It would also have been open to allow this appeal under s 87.

[6] [1985] HCA 81; (1985) 159 CLR 550, 582.

[7] [1990] HCA 57; (1990) 170 CLR 596 ('Annetts').

[8] The second occasion was Annetts v Australian Stations Pty Ltd [2002] HCA 35; (2002) 211 CLR 317 which resulted in the seminal decision concerning the duty of care and psychiatric injury.

[9] Annetts [1990] HCA 57; (1990) 170 CLR 596, 598 (Mason CJ, Dean and McHugh JJ).

[11] Re Minister for Immigration and Multicultural Affairs; ex parte LAM (2003) 214 CLR 1, 16 [48] (McHugh and Gummow JJ).