Atkinson v Morrow & Anor

C J Strofield, Queensland Police Service Solicitor for the applicant

C W Lohe, Crown Solicitor for the second respondent

[1] MULLINS J: At the inquest into the death of Rodney Michael O'Sullivan being heard at Gladstone on 20 and 21 September 2004, the acting coroner (who is the first respondent to this application) decided that a statement of Acting Chief Superintendent Kummerow ("Kummerow") dated 13 August 2004 be admitted into evidence and that Kummerow be required to give evidence at the inquest into the cause and circumstances surrounding the death of Mr O'Sullivan. The applicant who is the Commissioner for Police seeks relief pursuant to s 30 of the Judicial Review Act 1991 ("JRA") to quash this decision of the first respondent or, alternatively, relief is sought pursuant to s 47 of the JRA to quash the decision. The Attorney-General has intervened in the application pursuant to s 51 of the JRA.

[2] It was common ground between the parties that for the purpose of this application the following statement summarised the relevant facts relating to Mr O'Sullivan:

"Mr O'Sullivan was last seen at Monto on the 28th of March 2003. Mr O'Sullivan had been acting an unusual manner. In particular, Mr O'Sullivan approached an employee of the BP Service Station at Monto. She asked if she could help him and Mr O'Sullivan indicated that there were a couple of fellows hiding in nearby bushes with a gun trained on him. The police were called and whilst they were in transit Mr O'Sullivan removed the pump from the bowser, activated the pump and discharged a small quantity of fuel onto the ground. The police then arrived. Mr O'Sullivan later indicated to the two attending police officers that no one had been chasing him but he wanted to attract the attention of the police in order to enlist their assistance to enable him to get out of Monto. There was no public transport available. He requested the police to drop him some distance from Monto (sic) a place called Mulgildie which was a well known stop where long haul trucks were known to stop and collect persons who wanted "lifts" to other areas of the state. Mr O'Sullivan appeared to the police officers who subsequently took him to Mulgildie, a drive of some 10-12 kms away, to be lucid and normal. After the police officers dropped him at this location. He was not seen alive again. His remains were found on the 21st of April 2003 in a sorghum paddock some 300 metres from where had had been left. It appears that from the evidence given at the inquest that only abnormality able to be ascertained on post mortem was a potentially fatal level of methamphetamine found in the liver. It was estimated that Mr O'Sullivan had died sometime between the 28th and 30th of March 2003."

[3] The police officers were Sergeant Giles and Senior Constable Robb.

[4] The State Coroner directed that "an inquest be held into the cause and circumstances of the death of Rodney Michael O'Sullivan, primarily to determine whether the police officers involved adequately discharged their duty of care to the deceased". The applicant was advised on behalf of the coroner at Gladstone by letter dated 23 July 2004 of the holding of the inquest for this purpose and that the coroner wished to summons a senior police officer to attend the inquest and "give evidence about Queensland Police Service's policy guidelines (or the like) for dealing with similar situations which confronted Sgt Giles and Senr Const Robb in Monto on 28 March 2003".

[5] As a result, Kummerow prepared the statement dated 13 August 2004 regarding Queensland Police Service policy and procedural issues associated with the situation that confronted the police officers in relation to their dealings with Mr O'Sullivan. Reference was made by Kummerow to the provisions in various manuals that regulate dealings by police with a person who may be suspected of suffering a mental illness or where there was concern for the mental wellbeing of a person and circumstances where police can transport members of the public in police vehicles and be responsive to reasonable demands of members of the community.

[6] At the outset of the inquest, the first respondent indicated that he did not consider himself bound by the letter dated 23 July 2004. The inquest proceeded in the usual manner with evidence being taken from witnesses who had seen or had dealings with Mr O'Sullivan on or around 28 March 2003 including the police officers. A submission was made on behalf of the applicant to the first respondent that Kummerow's statement had nothing to do with the circumstances of Mr O'Sullivan's death and that the statement was irrelevant evidence in the inquest. The first respondent ruled that Kummerow's statement was admissible and that he required Kummerow to give evidence on the basis that the evidence was relevant to the issue of how Mr O'Sullivan came to be at Mulgildie on the morning before it appears he died and that he wished to be informed about police procedures that applied in the particular circumstances that arose for the police officers in relation to Mr O'Sullivan.

[7] The inquest was adjourned before Kummerow gave evidence to enable this application to be made by the applicant.

[8] The applicant contends that the first respondent's ruling was in error because when he first made it, he made reference to Mr O'Sullivan being in the custody of the police, when Mr O'Sullivan was neither detained nor arrested by the police. The ruling was confirmed by the acting coroner after hearing the evidence of the police officers. The mere use of the word "custody" by the acting coroner did not itself in the circumstances make the ruling incorrect.

[9] As the death of Mr O'Sullivan occurred before 1 December 2003, the Coroners Act 1958 ("the Act") continues to apply: s 100 of the Coroners Act 2003.

[10] A coroner is given power to inquire whether death has occurred and into the cause of the death and the circumstances of the death of a person pursuant to s 7 of the Act:

(1) A coroner shall have jurisdiction to inquire and shall inquire forthwith whether the death has occurred and into the cause of the death and the circumstances of the death of a person where the coroner is informed that the person is dead and--

(a) in the coroner's opinion there is reasonable cause to suspect that the person--

(i) has died either a violent or unnatural death (but so that the meanings of the terms 'violent' and 'unnatural' shall not be affected by anything contained in subparagraphs (ii) to (ix));

(ii) has died a sudden death of which the cause is unknown;

(iii) has died in any circumstances of suspicion;

(iv) has died by drowning;

(v) has died while under an anaesthetic in the course of a medical, surgical, or dental operation or operation of a like nature;

(vi) has died but no certificate of a medical practitioner has been given as to the cause of death;

(vii) has died not having been attended by a medical practitioner at any period within 3 months immediately prior to the person's death;

(ix) has died in such circumstances as to require the cause of death or the circumstances of death or both to be ascertained or more clearly and definitely ascertained; or

(b) that the person has died within the State while detained in any prison or psychiatric hospital; or

(c) in the coroner's opinion the person has died within the State in such a place as to require that inquiry; or

(d) the Minister has directed the coroner to so inquire (the Minister being hereby empowered to so direct at any time when the Minister is of the opinion that the person has died in such a place or in such circumstances as to require such inquiry).

(2) However, a coroner shall not inquire or hold an inquest into the death of any patient who dies in any psychiatric hospital to which the coroner is an official visitor.

(3) Where under this Act a coroner inquires into any death, the coroner may from time to time make or cause to be made such inquiry, investigation, inspection, examination, and test, or any of these, as the coroner considers fit."

[11] Sections 7A and 7B of the Act provide:

The jurisdiction conferred by this Act to inquire and to hold an inquest shall exist in every case where a person has died within the State, whether the dead body of that person is within or outside the State, and, except where otherwise expressly provided, where a person has died outside the State and the dead body of that person is within the State.

(1) If as the result of a post-mortem examination, or otherwise as the result of the coroner's inquiry the coroner is of the opinion that--

(a) there is reasonable cause to suspect that the person--

(i) has died either a violent or an unnatural death; or

(ii) has died a sudden death of which the cause is unknown; or

(i) while detained in any prison or psychiatric hospital; or

(ii) in such a place as to require an inquest to be held; or

(c) the person has died in such circumstances as to require an inquest to be held; the coroner shall hold forthwith an inquest into the death of that person unless, in a case specified in paragraph (a) or (b) it is decided, pursuant to section 16, that the holding of an inquest is unnecessary.

(2) In any case in which pursuant to this Act the coroner may inquire into the death of any person, the coroner shall hold forthwith an inquest into the death of that person if so directed by the Minister.

(3) The Minister is hereby empowered to give at any time such a direction.

(4) The commissioner of the police service or an inspector of police or a person authorised by subsection (6) may, at any time, request the coroner to hold an inquest into the death of a person in any of the circumstances specified in subsection (1), but before so doing the coroner may require a statement in writing of the grounds for such request.

(5) If the coroner is of the opinion that such grounds do not warrant the holding of an inquest, the coroner may refuse to hold the inquest but in that event the coroner shall forthwith notify the chief executive in writing of such refusal and forward with such notification a copy of such grounds.

(6) The persons authorised to request a coroner to hold an inquest shall be the husband or wife, father, mother, sister, brother, son, daughter, or guardian of the deceased person concerned or any other person having, in the opinion of the coroner, a sufficient interest in the cause and circumstances of the deceased person's death."

[12] Section 24(1) of the Act prescribes the purpose of an inquest into a death held under the Act:

(1) Where an inquest into a death is held under this Act it shall be for the purpose of establishing so far as practicable--

(d) the persons (if any) to be charged with murder, manslaughter, the offence of dangerous driving of a motor vehicle causing death as set forth in the Criminal Code, section 328A, or any offence set forth in the Criminal Code, section 311.

(2) The coroner holding an inquest into a death shall also inquire of, and so far as practicable ascertain, the particulars for the time being required under the Registration of Births, Deaths and Marriages Act 1962, section 35, to be contained in the certificate referred to in that section."

[13] The admission of evidence is governed by s 34 of the Act:

(1) In any inquest the coroner may admit any evidence that the coroner thinks fit, whether or not the same is admissible in any other court, provided that no evidence shall be admitted by the coroner for the purposes of the inquest unless in the coroner's opinion the evidence is necessary for the purpose of establishing or assisting to establish any of the matters within the scope of such inquest.

(1A) In addition, but so that in every death inquest every medical witness may be asked to give evidence as to how in the medical witness's opinion the deceased came to his or her death, no evidence as to opinion upon any matter which would not be admissible in evidence in a court exercising civil or criminal jurisdiction shall be admitted by the coroner unless the coroner is of the opinion that in the special circumstances of the case it is necessary or expedient so to do.

(2) Without limiting the provisions of subsections (1) and (1A) nothing in this Act shall be taken to prevent in a death inquest any person who has made a post-mortem or other examination in compliance with a coroner's order under this Act of the body of the deceased from giving evidence as to the person's opinion upon any matter arising out of the examination, and as to how in the person's opinion the deceased came to his or her death.

(3) The coroner holding an inquest into a death shall, if the coroner's opinion there is any reasonable doubt as to the cause of death and it is possible to obtain such testimony, take the testimony of a medical practitioner thereon.

(4) Without derogating from any other provision of this Act, any person who has or who alleges or has alleged that the person has knowledge or information concerning any matter or thing relevant to an inquiry under section 10, or who the coroner has reason to believe has, or is alleging or has alleged that the person has such knowledge or information, shall be a competent and compellable witness at such an inquiry both as to such knowledge or information and as to the sources from which the person obtained same.

(5) A statement or disclosure made by any witness at an inquiry under section 109 in answer to any question put to the witness by or before the coroner shall not (except in proceedings in respect of contempt of a Coroner's Court or of an offence against the Criminal Code, sections 123 and 126 to 13010 respectively) be admissible in evidence against the witness in any civil or criminal proceedings."

[14] The findings that can be made by the coroner are governed by s 43 of the Act:

(1) After considering all the evidence before the coroner at the inquest the coroner shall give the coroner's finding in open court.

(2) Where the inquest concerns the death of any person, the finding shall set forth--

(i) who the deceased was;

(ii) when, where, and how the deceased came by his or her

death; and

(3) Where the inquest concerns a fire, the finding shall set forth--

(a) so far as has been proved the cause and origin of the fire; and

(4) Where the inquiry concerns a missing person the finding shall set forth--

(i) the cause and circumstances of the disappearance of such missing person; and

(ii) whether such missing person is alive or dead; and

(iii) if such missing person is alive or likely to be alive--the whereabouts of such missing person at the time of the inquiry; and

(5) The coroner shall not express any opinion on any matter outside the scope of the inquest except in a rider which, in the opinion of the coroner, is designed to prevent the recurrence of similar occurrences.

(5A) A rider shall not be or be deemed to be part of the coroner's finding but it may be recorded if the coroner thinks fit.

(6) No finding of the coroner may be framed in such a way as to appear to determine any question of civil liability or as to suggest that any particular person is found guilty of any indictable or simple offence."

[15] The applicant submits that the evidence of Kummerow is not evidence that is admissible under s 34 of the Act, as it is not necessary for the purpose of establishing or assisting to establish any of the matters within the scope of the inquest that are set out in s 24(1) of the Act. It is submitted that the evidence of Kummerow could have any relevance only to the matter set out in s 24(1)(c) of the Act of "when, where, and how the death occurred" and, more specifically, how the death occurred and that, on analysis, the evidence of Kummerow could not affect any finding of the coroner on how the death of Mr O'Sullivan occurred.

[16] Mr Rolls of Counsel on behalf of the applicant contends that the word "how" should be construed as meaning "by what means", so that the coroner was concerned only with the means by which the death occurred and not the circumstances in which the death occurred, relying on R v Coroner for North Humberside and Scunthorpe, Ex parte Jamieson [1995] QB 1, 24 ("Jamieson"). It is contended that even if a broader interpretation were given to "how", so that the coroner were permitted to consider the circumstances of the death, the subject matter of Kummerow's statement would still not be relevant.

[17] The respondent submits that the legislative scheme reflected in the Act gives a wide jurisdiction to inquire, but a confined power to make findings. Mr Hinson of Senior Counsel on behalf of the respondent submits that the English legislative scheme that was considered in Jamieson is narrower in scope than the Act and therefore Jamieson was not a reliable guide to the construction of particular provisions of the Act and refers to R (Middleton) v West Somerset Coroner [2004] UKHL 10; [2004] 2 AC 182, 200 [28] where the House of Lords characterised the Court of Appeal's interpretation in Jamieson of "how" as meaning "by what means" and not "by what means and in what circumstances" as narrow.

[18] It is submitted that the ambit of the evidence at the inquest must be broader than the findings which the coroner is constrained to make, because it is that broader inquiry which will assist the coroner in determining what findings are ultimately made. Mr Hinson points to the difficulty of predicting in advance whether a piece of evidence will support a finding that the coroner is empowered to make, until all the evidence is before the coroner.

[19] The respondent submits that Kummerow's statement is admissible under s 34(1) of the Act on the basis that it is necessary for the purpose of assisting to establish a matter within the scope of the inquest which is the circumstances of the death of Mr O'Sullivan.

[20] The holding of an inquest into the death of a person by a coroner has a long tradition, when account is taken of its English roots: see Jamieson at 11. It is a fact finding inquiry conducted by the coroner to ascertain the facts or matters relating to the death required by the relevant statutory provisions: see Jamieson at 23. An inquest into the death of a person involves the public interest: Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596, 603.

[21] Under the Act the coroner is given jurisdiction at two stages in relation to the death of a person. The first stage which is covered by s 7 of the Act is the inquiry and the second stage for which the jurisdiction is conferred in s 7B of the Act is the holding of an inquest.

[22] The inquiry is undertaken by the coroner to determine whether there should be an inquest. The subject matter of the inquiry that is set out in s 7(1) of the Act is "whether the death has occurred" and "the cause of the death and the circumstances of the death". The coroner is required to embark on such an inquiry where the coroner is informed that the person is dead and in the coroner's opinion there is reasonable cause to suspect that the person died in any of the circumstances that are described in paragraph (a) of s 7(1) of the Act. An inquiry also must be held where the coroner is informed the person is dead and any of paragraphs (b), (c) or (d) of s 7(1) of the Act apply. In the course of making the inquiry, the coroner is given wide power under s 7(3) of the Act to make or cause to be made such inquiry, investigation, inspection, examination and test as the coroner considers fit.

[23] If as a result of a post-mortem examination or as a result of the inquiry, the coroner has an opinion which accords with any of the circumstances provided for in s 7B(1) of the Act (such as there is reasonable cause to suspect that the person has died a violent or an unnatural death or a sudden death of which the cause is unknown or the person has died in such circumstances as to require an inquest to be held), the coroner must hold forthwith an inquest into the death of that person. Under s 7(2) of the Act the coroner must hold an inquest into the death of a person where otherwise the coroner had power to inquire into the death of that person, if so directed to hold the inquest by the Minister.

[24] The police or relatives of the deceased or a person having a sufficient interest in the cause and circumstances of the deceased's death may also request the coroner to hold an inquest into the death of the person in any of the circumstances specified in s 7(1) of the Act, but the coroner may refuse to do so, if the coroner is of the opinion that the grounds for the request do not warrant the holding of an inquest: see s 7(4), (5) and (6) of the Act.

[25] The inquest is a public hearing (subject to the powers of exclusion conferred on the coroner under s 30A of the Act) at which witnesses from whom evidence is sought in respect of the matters within the scope of the inquest are examined and cross-examined on oath.

[26] The coroner is specifically required under s 43(2) of the Act when publishing the findings of the inquest concerning the death of a person to commit for trial any person to be charged with any of the offences set out in s 24(1)(d) of the Act. Apart from the specific jurisdiction given to a coroner to commit for trial, s 43(6) of the Act prohibits the coroner from framing a finding in such a way as to appear to determine any question of civil liability or as to suggest that any particular person is found guilty of any indictable or simple offence. This prohibition makes it clear that the fact finding inquiry of the coroner should not be used for any ancillary purpose for which the coroner has no jurisdiction. The prohibition does not preclude the coroner from exploring facts for the purpose of making the findings required under s 43(2) of the Act which may also incidentally have a bearing on civil or criminal liability: see Jamieson at 24.

[27] Section 43(5) of the Act permits the coroner to express an opinion in a rider which is designed to prevent the recurrence of similar occurrences. Subject to the power to add a rider, s 43(5) of the Act prohibits the coroner from expressing an opinion on any matter outside the scope of the inquest. Section 43(5A) of the Act expressly states that a rider shall not be or be deemed to be part of the coroner's finding, but it may be recorded if the coroner thinks fit. The recognition that the coroner may express an opinion in a rider which is not part of the findings does not enlarge the scope of the inquest.

[28] The extent of the fact finding inquiry undertaken at the inquest is therefore limited by the statutory framework. That was illustrated in R v Randall, Ex parte The Salvation Army (Queensland) Property Trust (unreported, Full Court S Ct (Q), OS No 21 of 1983, 24 August 1983). It was found in that case that the coroner intended to widen the scope of the inquest into the death of the named person by accepting evidence covering matters of procedure of the Salvation Army (Queensland) Property Trust in the conduct of its rehabilitation centre, church services, and custody of patients' moneys and possessions. An order nisi was made absolute prohibiting the coroner from inquiring into the general treatment of patients at the rehabilitation centre, as it was not for the purpose of establishing so far as practicable in relation to the death of the named deceased any of the matters set out in s 24 of the Act.

[29] On the hearing of this application both parties referred to Queensland Fire and Rescue Authority v Hall [1998] 2 QdR 162. That was an application under s 43 of the JRA in relation to the decision of the coroner conducting an inquest pursuant to s 8 of the Act to allow questions to be asked about the training and experience of the persons involved in fighting the fire which was the subject of the inquest. In determining the scope of the coroner's power on an inquest under s 8 of the Act, Lee J compared the wording of s 8 with that of s 7 of the Act. The analysis of s 7 of the Act was undertaken in that case for the purpose of construing s 8 of the Act. That process was not intended to, and did not, determine the scope of an inquest into the death of a person held under s 7B of the Act. Lee J observed in relation to s 7 of the Act:

"It may be noted that s. 7 first refers to 'the cause of the death' itself as the ultimate focus of the inquiry, i.e., the death, but there is the added requirement of '... and the circumstances of the death'. The death is the actual event and the cause of it is the process of happening which brought the death about and is the cause of it, whereas 'the circumstances' obviously covers a much wider area of inquiry as the word itself conveys and as the various sections of the Act referred to indicate. Circumstance means 'time, place, manner, cause, occasion, etc, surroundings, of an act or event;': Concise Oxford Dictionary."

[30] Under s 34(1) of the Act Kummerow's evidence would be admissible only if it were necessary for the purpose of establishing or assisting to establish any of the matters within the scope of the inquest. That requires consideration of the matters that are within the scope of the inquest which is specified in s 24(1) of the Act. Under s 24(1) of the Act the inquest into a death is for the purpose of establishing the matters set out in that provision. Those matters correspond with the findings that the coroner is required to make under s 43(2) of the Act. It is a formula which sets out the ultimate facts that the coroner is seeking to find. That the scope of the inquest is for the purpose of establishing those matters does not limit the evidence to that which is directly relevant to those matters. It is obvious that it may be necessary for evidence of a broader nature to be adduced before the coroner for the purpose of assisting the coroner to reach a conclusion on the specific matters on which findings are required. That is also reflected by the wording of s 34(1) of the Act which contemplates that evidence is admissible which is not only necessary for the purpose of establishing any of the matters within the scope of the inquest, but extends to evidence which may assist in establishing any of those matters.

[31] For the purpose of the first stage of the jurisdiction exercised by the coroner in respect of the death of a person where the coroner makes the inquiry under s 7 of the Act, the coroner is specifically empowered to inquire into the circumstances of the death of the person, in addition to the cause of the death of the person. It would be an unusual approach to the construction of the Act to limit the construction of ss 24(1) and 34(1) of the Act to exclude evidence of the circumstances of the death from the inquest, even though information pertaining to the circumstances of the death had been considered by the coroner in deciding to hold the inquest. Evidence of the circumstances of the death would usually be relevant for the purpose of assisting the coroner in establishing the matters set out in s 24(1) of the Act.

[32] It is therefore not necessary to deal with the arguments on the construction of the word "how" in s 24(1)(c) of the Act. If it were necessary to do so, in the context of the Act which provides for the first stage inquiry undertaken by the coroner to be directed at the cause of death and the circumstances of death and giving weight to the important public purpose served by an inquest, the expression "how the death occurred" should not be given the unduly restrictive meaning of "by what means the death occurred", but should be given the broad construction for which the respondent contends of "by what means and in what circumstances the death occurred".

[33] There is no doubt that the letter dated 23 July 2004 which clearly proposed an inquest for a purpose that was outside the scope of the coroner's jurisdiction properly raised the concerns of the applicant. The manner in which the inquest was conducted by the first respondent displaced that letter. In view of the police officers' dealings with Mr O'Sullivan that led to his being taken to the place near where he was found dead at a later time, the procedures that applied to the conduct of the police in the particular circumstances of their dealings with Mr O'Sullivan may affect the coroner's consideration of the circumstances of the death of Mr O'Sullivan. The inquest has not yet been completed. I am not satisfied that it can be unreservedly concluded at this stage that the evidence of Kummerow has no relevance whatsoever for the purpose of assisting in establishing how Mr O'Sullivan died or the circumstances of his death. What weight, if any, that the first respondent ultimately places on any of Kummerow's evidence will be a matter for the first respondent.

[34] I am therefore not satisfied that the first respondent's ruling in relating to Kummerow's evidence was not authorised by the Act, was an improper exercise of the power conferred by the Act or amounted to jurisdictional error. The application should be dismissed. I will hear submissions from the parties on the question of costs.