Domaszewicz v State Coroner [2004] VSC 528

Supreme Court of Victoria|2004-12-17|Before: Ashley J

Coroners - findings made without inquest - subsequent order that inquest he held - false basis for assumption of jurisdiction to hold inquest - whether alternative basis for assumption of jurisdiction existed - whether all conditions antecedent to exercise of jurisdiction on available basis satisfied - whether coroner required to make finding in respect of matter dealt with by now-repealed s. 19(1)(e), Coroners Act 1985 - whether risk, in substance, of double jeopardy.

Ms P. Tate SC, Solicitor-General with Mr C. M. Caleo

Jaidyn Leskie, a young child, disappeared on the night of 14 - 15 June 1997. The plaintiff, Greg Domaszewiez, was charged with his murder on 16 July that year. The child's body was found on 1 January 1998. The plaintiff was tried. On 4 December 1998 he was found not guilty. The child's father requested an inquest on 14 December 1998, and his mother made such a request on 21 October 1999. On 29 January 2002 a Deputy State Coroner (conveniently "the Deputy Coroner") appointed pursuant to the Coroners Act 1985 ("the Act") determined not to hold an inquest, and provided reasons.

The fact that the Deputy Coroner determined not to hold an inquest does not mean that he did not investigate Jaidyn Leskie's death. He did investigate, and he prepared a record of his investigation. Dated 22 May 2002, it set out certain findings. They were silent upon a number of questions - particularly, how death occurred. The following day the Registrar of the Coroner's Court wrote to the parents saying that the investigation was now concluded.

Thereafter, the child's father and his family and the child's mother made further requests that an inquest be held. The father and his family made a request for review, emphasising the breadth of the range of matters which needed investigation. The mother sought, by her solicitor, orders declaring the findings of the Deputy Coroner void and for a re-opening of the inquest. The solicitor referred to s. 59A of the Act.

Following communications between police officers and the State Coroner (conveniently, "the Coroner" except where the context shows otherwise), the Principal Registrar of the Coroner's Court advised the mother's solicitor on 21 July 2003 that the State Coroner had reviewed additional material, had granted the mother's application, and had ordered that an inquest be held.

The matter came before the Coroner on 26 September 2003. The plaintiff was represented. Senior counsel assisting referred to s. 59A of the Act. Immediately thereafter, in the absence of any objection, the Coroner made an order setting aside the findings of the Deputy Coroner. He did not order that an inquest be held - apparently because, as he considered it, he had already so ordered; that is, on or about 21 July 2003.

On 17 November 2003 an inquest into Jaidyn Leskie's death commenced in substance before the Coroner. It continued in fits and starts between that day and 27 February this year. Then it was adjourned sine die, the plaintiff by his counsel having objected to its continuance.

On 16 April this year the plaintiff made application, in effect, that the Coroner desist from the inquest.

On 7 May the Coroner rejected the application, though conceding that he had made an error in relying upon s. 59A of the Act to enliven the proceeding before him.

The Coroner analysed in his reasons other sources of power as would found a jurisdiction to conduct the inquest. He concluded that a source of power existed. He referred to ss. 7(d), 17(1)(f), 17(2) and 18. He evidenced a determination to proceed with the inquest. That led on to the proceeding presently before this Court, which in substance raises a contention that the Coroner did not have jurisdiction to conduct an investigation or hold the inquest, and which seeks in any event that the Court permanently stay the further hearing of the inquest on the ground that it was an abuse of process.

The burden of the plaintiff's argument concerning jurisdiction was that once a coroner had made determination under s. 17(3) of the Act, and/or once an investigation had culminated in findings[1] and the compilation of a record, the jurisdiction of a coroner was spent. The Coroner had no jurisdiction to thereafter commence an investigation; nor to order that an inquest be held, set aside the findings made, and conduct an inquest.

Counsel further argued that even if the Coroner had power to commence an investigation, he did not do so; and that if he had power to set aside the findings of the Deputy Coroner, and to hold an inquest, he had assumed jurisdiction upon a false basis. It could not now be corrected.

The burden of the abuse of power argument, which assumed that the Coroner had jurisdiction to conduct the inquest, was that for the Coroner to conduct an inquest which would lead to a finding that the plaintiff had contributed to the child's death would subject the plaintiff to a kind of double jeopardy. From the outset, it was contended, the inquest had been conducted on the footing that there was but one credible suspect in respect of the child's death - the plaintiff. This was the way that the matter had been opened by counsel assisting. No alternative suspect had been seriously advanced. The way in which the evidence had been called, even allowing for the liberties that attend a coronial inquest, showed an absolute determination to put anything forward that could implicate the plaintiff.

The Act draws a clear distinction between the investigation of "reportable deaths"[2] and the holding of inquests. That is so despite the definition of "investigation" in s. 3, explicable in that an inquest may be part of the investigative process.

Although the jurisdiction to investigate reportable deaths is in one instance cast in permissive language[3] the scheme of the Act is plainly that such deaths are to be investigated[4].

The jurisdiction of a coroner to hold an inquest is conditional upon a coroner having jurisdiction to investigate the death. Each of s. 17(1) and (2), which plainly confer such jurisdiction, refers to "a Coroner who has jurisdiction to investigate a death".

In the circumstances described by s. 17(1), a coroner must hold an inquest except if he or she makes a determination under s. 17(3). Section 17(2) addresses cases in which a coroner may but is not bound to conduct an inquest.

Section 17(3) empowers a coroner who has jurisdiction under s. 17(1) to determine in some circumstances not to hold, continue or recommence an inquest which would otherwise be mandatory. The sub-section was inserted by Act No 25 of 1995[5]. It was introduced in order to give a coroner the opportunity to determine that there should not be an inquest in a case in which, to take an obvious example, a person had been charged with the murder of the deceased and had been convicted or acquitted. Prior to the insertion of the sub-section there had been an obligation to hold an inquest in such a case by reason of s. 17(1). It was considered desirable to relieve coroners of the mandatory obligation of commencing or continuing inquests in circumstances such as I mentioned a moment ago.

Whether a reportable death leads to an investigation without inquest or to an investigation which culminates in an inquest, a coroner's functions are essentially the same. They include an obligation to make findings - except in a case where a determination has been made under s. 17(3) - about the matters specified in s. 19(1). If such a determination has been made, the coroner need only make findings about a specified matter if the coroner believes it is desirable.

There is specific provision in the Act for challenging the findings made at an inquest. Section 59 permits application to this Court for an order that all or some of the findings of an inquest are void. By sub-s. (2) the Court may order that a new inquest be held, or that the impugned inquest be re-opened. The circumstances in which such an order may be made are specified by sub-s. (3). Section 59A, applying to inquests concluded after 1 July 1999, permits application to the State Coroner for an order that all or some of the findings of an inquest are void. By sub-s. (2), if the State Coroner so orders, he may order that the inquest be re-opened. The grounds upon which the State Coroner may make a sub-s. (2) order are specified by sub-s. (3). They are more limited than the circumstances in which the Court may act under s. 59.[6]

In May this year, as I noted earlier, the Coroner perceived that he had made an error in relying upon s. 59A as the source of power whereby to have embarked upon the inquest which formally commenced in late September 2003. Counsel for the plaintiff and the Attorney General intervening[7] accepted before me that s. 59A had no application in the circumstances. Their common position was surely correct. It is clear that ss. 59 and 59A address findings made at inquests, and do not address findings made on investigation without inquest.[8] Note also the fact that the State Coroner's power under s. 59A(2) is to re-open, or direct another coroner to re-open, the inquest. What the State Coroner did in this case was to order that an inquest be held. Even if s.59A could otherwise have applied, such an order would not have been authorised.

The State Coroner having assumed a jurisdiction to hold an inquest in reliance upon a provision which did not give him such jurisdiction, the question to be answered is whether there was an unrecognised source of jurisdiction which will validate what he did. That embraces the question whether, because the Deputy Coroner had determined not to hold an inquest, and had made certain findings, which he recorded, the power of a coroner was exhausted. It also embraces an antecedent question raised by the plaintiff - that is, whether the Coroner commenced and/or conducted an investigation into the child's death.

The Coroner mentioned ss. 7(d), 17(1)(f), 17(2) and 18, in his "judgment" published on 5 May 2004, as avenues whereby a finding without inquest might be set aside and an inquest held if it was desirable. Considering them one by one, with particular reference to what the State Coroner actually did, I conclude that -

* First, s. 7(d) is not a source of jurisdiction. It simply describes a function, albeit an important function, of the State Coroner.

* Second, what happened here was incompatible with jurisdiction having arisen by operation of s. 17(1)(f). That sub-section makes it mandatory for a coroner to hold an inquest if it appears that the death or cause of death occurred in Victoria and the State Coroner so directs. The sub-section does not contemplate the State Coroner directing himself to hold an inquest; and in fact there is nothing to indicate that he did so.

* Third, this was not a death in respect of which the jurisdiction created by s. 17(2) could apply. The discretionary jurisdiction conferred upon a coroner by that sub-section to hold an inquest applies to cases which do not fall within sub-section (1).[9] It could not be suggested other than the Jaidyn Leskie's death fell within the circumstances mentioned in s. 17(1)(a).

* Fourth, extrapolating from what I have just said, I cannot accept, if a coroner determined under s. 17(3) not to hold an inquest into a death falling within s. 17(1), that the death could thereupon fit within s. 17(2).

* Fifth, s. 18(1) is not an independent source of jurisdiction to hold an inquest. It is, to the contrary, the sole means whereby an interested person may ask a coroner to hold an inquest into a death which the coroner has jurisdiction to investigate; and by which, if the coroner refuses, the person may apply to this Court for an order that an inquest be held.

Section 18 has potential application to deaths falling within each of s. 17(1) and (2). Obviously it is so in the case of s. 17(2). But it is also so in the case of s. 17(1) because of s. 17(3). Despite the mandatory language of s. 17(1), a coroner may determine not to hold an inquest in certain circumstances comprehended by that sub-section. Section 18 offers an opportunity for an interested person to seek an inquest in such a case. It obliges a coroner, if he exercises his power under s. 17(3) and determines that an inquest not be held,[10] to give reasons for his determination; and, it permits an unsuccessful applicant for an inquest to approach this Court.

What I have just said had application in this case. Requests were made that an inquest be held. The Deputy Coroner provided reasons why he had determined under s. 17(3) that an inquest not be held. His reasons[11] did not refer to the requests; but it seems clear to me, from the fact that reasons were provided, albeit belatedly, that the Deputy Coroner intended them to be a response to a 18(1) request.

This was, then, a death which fell within the language of s. 17(1)(a) and not otherwise.[12] The circumstance of the plaintiff's trial and acquittal made s. 17(3) relevant. Requests for an inquest were made under s. 18(1). The Deputy Coroner determined not to hold an inquest in reliance upon s. 17(3); and ultimately he provided reasons for so determining. Thereafter he completed his investigation without inquest, made findings and prepared a record. His findings did not address all of the matters mentioned in s. 19(1). It is unknown whether that reflected what the Deputy Coroner believed was desirable - vide s. 19(4) - or whether it reflected his inability to address all of those matters.

Further requests that an inquest be held were made to the Coroner (and to the Attorney General) after the Deputy Coroner had made his findings. In the case of the request made on the mother's behalf, reliance on s. 59A was misconceived. That misconception was built upon in two ways. First, police advice to the Coroner focussed upon s. 59A and an analysis of possible "new facts or evidence".[13] Second, the Coroner relied upon s. 59A to set aside the Deputy Coroner's findings and order that an inquest be held.

Pausing for a moment, the plaintiff pleaded that the Coroner had no jurisdiction to conduct an investigation after the Deputy Coroner had made a s. 17(3) determination, had made findings under s. 19(1), had decided not to make findings under s. 19(4), and where a record of findings had been made under s. 20.[14] The plaintiff further pleaded that the Coroner did not commence an investigation into the child's death and as a result did not have jurisdiction to conduct an inquest into the death.[15] I make these points:

* First, in my opinion there is no doubt that the Coroner did pursue an investigation. The police advice to which I referred a few moments ago was evidently an important element in that investigation. The fact that the investigation was pursued in the particular context of s. 59A does not deny the fact of the investigation. That puts paid as a matter of fact to the issue raised by paragraph 11A of the Grounds relied upon in the Amended Originating Motion. It is unnecessary to deal with the merits or otherwise of the issue as a matter of law.

* Second, the contention, in substance, that the Coroner had no jurisdiction to conduct an investigation was linked with the plaintiff's contention that his Honour had no jurisdiction to hold an inquest because the coroner's functions were exhausted once the Deputy Coroner had made a s. 17(3) determination, made findings under s. 19(1), decided not to make findings under s. 19(4), and recorded findings under s. 20. The plaintiff raised other objections to the Coroner's assumption of jurisdiction to hold an inquest; but a conclusion that the things done by the Deputy Coroner did not exhaust the Coroner's jurisdiction to hold an inquest would condemn to failure the plaintiff's contention that his Honour did not have jurisdiction to conduct an investigation. For that reason I will focus hereafter on the challenge to the jurisdiction of the Coroner to hold an inquest.

Had there been no determination by the Deputy Coroner under s. 17(3), no reasons given for refusal to hold an inquest, no findings under s. 19(1), and no preparation of a record under s. 20, it is clear that at least the request made by the child's father on 24 June 2002 would have constituted a s. 18(1) request which must have been addressed. The questions are, those things having happened, was there anything which could be the subject of a request, and was there anything left to address? They were not questions considered by the Coroner.

An inquest is not a proceeding inter parties. It is part of an investigative process which is concerned, inter alia, to set the public mind at rest where there are unanswered questions about a reportable death. That provides good reason, conceptually, why the investigative process should not be considered spent in the event that new facts emerge - even if at an antecedent time an investigation has been nominally closed upon facts then known. In "new facts," I include both matters certain and matters conjectural.

In this case, it seems to me, new facts or evidence arguably did emerge with the passage of time, some at least of which warranted further investigation. That is not to say that all of those matters were entirely unknown when the plaintiff stood his trial, or even when the Deputy Coroner made his findings. Nor is it to say that a coroner was obliged to, or should have, suspended common sense and relied upon some far-fetched notion to justify setting further investigation in train. But it is to say that issues of likely greater or lesser significance did emerge, and that information concerning known issues expanded or was refined, with the passage of time. Thus -

* The provenance of DNA material found on the child's clothing.

* The question how many teeth had erupted at the time of death (for it bore on the question when the child had died).

* The provenance of Benzhexol found in the child system, and the possible role of that drug as a cause of death.

* The content and reliability of alleged gaol confessions made by the plaintiff, and the significance of any communications by recipients of the alleged confessions to the police antecedently to statements being made by the recipients.

* The reliability of an alleged sighting of the plaintiff's vehicle in the vicinity of the place where the child's body was found at a time proximate to the child's disappearance.

* The significance, if any, of a sketch allegedly taken by the child's father from the home of the child's mother, and given by the father to a social worker.

* A variety of claims made in a book written about the child's death by a Robyn Bowles.

Let it be assumed, then, as I consider was arguably the case, that in the period from June 2002 there emerged some matters pertinent to child's death which merited investigation - particularly in the context that the child's death had understandably caused a good deal of public disquiet which arguably had not been put to rest by the plaintiff's trial and acquittal. According to the plaintiff's argument, neither the Coroner nor any other coroner could intervene in such circumstances. The work of a coroner was ended once findings without inquest had been made and a record compiled. There was no power to set such findings aside. Contrast the power to avoid findings made at an inquest conferred by ss. 59 and 59A. Nor was there power, the Deputy Coroner having determined under s. 17(3) that an inquest should not be held, for the Coroner or any coroner to subvert that determination by embarking upon an inquest. There is an interest in bringing finality to an investigation. Moreover, the parents had not taken advantage, as s. 18 permitted, of the Deputy Coroner's initial failure to respond to their requests for an inquest; or of his subsequent refusal to hold an inquest. It would set s. 18 at nought if repeated requests that an inquest be held could be made, rather than that application be made to this Court under s. 18(2).

There is no time limit on bringing an application under either of ss. 59 and 59A. Perhaps relief might be refused on discretionary grounds if there was a long elapse between findings being delivered after inquest and application being made under one or other section. But that would no doubt depend upon matters such as when and how new material had come to light. The short point is that ss. 59 and 59A do not give primacy to whatever desirability there may be in finalising an investigation. Rather, the circumstance that findings made after inquest are at risk of avoidance into the indefinite future, in the event inter alia that new facts or evidence emerge, is consistent with a coroner having a continuing investigative role in connection with a reportable death.

I turn to the submission for the plaintiff that the Act sets up a logical scheme which provided both for the child's parents addressing the refusal of the Deputy Coroner to hold an inquest and also for finality of investigation; and that it would set s. 18 at nought if, a coroner having refused to hold an inquest, a new request could be made to a different coroner - and so on until a coroner was found who would accede to the request, or until an unsuccessful request had been made to every coroner.

The parents could have brought a s. 18(2) application in circumstances where, three months having elapsed from their requests being made, the Deputy Coroner had neither agreed to hold an inquest[16] nor refused their requests. But that does not mean that the legislative scheme propounded by counsel was complete. If this Court had ordered that an inquest be held, the findings after inquest would have been challengeable in the circumstances mentioned in ss. 59 or 59A. But if this Court had not made such an order, and if the Deputy Coroner had made findings without inquest, exactly the same problem as now arises would have arisen.

Next, I do not agree with the proposition that s. 18 would be set at nought if a series of requests were permissible under that section. The sense of s. 18(2) is that an application to this Court will address the circumstances extant at the time of the section 18(1) request. Those circumstances, no doubt, will have weighed in the refusal to hold an inquest. In the event that circumstances tending in favour of an inquest being held were later to emerge, I cannot see that it would subvert s. 18(2) to read s 18(1) to permit a further request. That is not to say that s. 18(1) would authorise a series of requests for an inquest made to different coroners in a period within which the known facts and evidence were the same. I wish to make it very clear that such a course would be impermissible.

I go to the submission for the plaintiff that the Deputy Coroner's determination under s. 17(3) should be considered final and decisive. I do not agree with that submission. It seems to me to be rooted in the primacy of finality. Yet the scheme of the Act is either opposed to such a notion or at the least consistent with any desirability of finality being subject to a greater concern that pertinent circumstances relevant to a reportable death be investigated. If, in the particular circumstances which I described a moment ago, more than one request for an inquest may be made under s. 18(1), why should not a coroner be authorised to consider and determine again whether an inquest should be held. At least if a coroner has not made findings when the fresh request is made, I see no compelling reason why the coroner should not consider and determine that question afresh; rather the contrary.

Does it make a difference that, based upon facts then known, a coroner has made findings without inquest and prepared a record? In my opinion the answer is "no". A number of matters favour that conclusion.

First, coroners fulfil an important public function. It is of an investigative nature, quite unlike that which a Court undertakes in the ordinary course of things. Coroners do not adjudicate upon proceedings inter partes. Any findings which they make do not determine legal rights. The purpose of a coroner's investigation is to determine what happened. It would be inconsistent with that function for a coroner to be precluded from pursuing an investigation by findings made on material now arguably incomplete.

Second, coroners may make findings after investigation and without inquest; or after investigation and inquest. Where an inquest is held, a coroner acquires powers which travel well beyond those exercisable without inquest. So, for example, a coroner may conduct an inquest in any manner he reasonably thinks fit. He may summon witnesses and compel attendance and answers to questions. The rules of evidence do not apply. He may give such directions as he considers necessary - for example, that further investigation be undertaken. Further again, emphasising that an inquest is not a proceeding inter partes, though the evidence given at an inquest must be recorded, for the most part it cannot stand as evidence. The circumstances in which findings are made after inquest therefore differ markedly from the circumstances in which findings are made without inquest.

Third, when an inquest is held and findings made, the same are susceptible of being voided. It would be anomalous if findings were not susceptible of being voided in circumstances where a coroner's findings were not made after exercise of the substantial additional powers which a coroner possesses when an inquest is held.

Fourth, no inquest was held in this matter until, at earliest, 26 September 2003, on which day appearances were announced and the Coroner made an order setting aside the Deputy Coroner's findings. It can be said that a decision had been made in January 2002, in the circumstances then obtaining, that an inquest not be held. But that was not the same thing as holding an inquest. It seems to me that it would be wrong to conclude that the jurisdiction to hold an inquest was thereby exhausted - that is, assuming application of the common law doctrine that a power once exercised is spent. In the event that there was an apparently unexhausted jurisdiction to hold an inquest, there must be a power to make findings. To the extent that any proposed findings would conflict with findings made by the Deputy Coroner, a power must be implied to set the latter aside. Otherwise a jurisdiction regularly invoked would become unworkable.

Fifth, in what I have just said I implied that findings on investigation without inquest and findings after inquest will not necessarily diverge. That is surely so. Quite apart from the prospect that it will be so on the facts, bear in mind that if a s. 17(3) determination is made a coroner has a discretion whether to make findings about a matter specified in s. 19(1). A coroner who conducts an inquest, however, must make findings, if possible, in respect of each matter specified by s. 19(1).

Further, the fact that a more onerous obligation under s. 19(1) is cast upon a coroner who holds an inquest - an obligation which is to be undertaken in circumstances in which the coroner is confided more extensive powers - than is cast upon a coroner who makes a s. 17(3) determination suggests to me that findings made after inquest, to the extent that they conflict with any findings earlier made without inquest, should prevail. That may be achieved by implying a power to set aside the latter to the extent of any conflict.

Sixth, I referred earlier to the common law doctrine that a power once exercised is spent. I doubt that it applies in the case of the Act, at least in the present connection. It appears to me that s. 40(a) of the Interpretation of Legislation Act 1984 applies, no contrary intention appearing. In concluding that no contrary intention appears, I add, I have considered the legislation overall; and have not simply focussed upon a section or two.

Seventh, it is at least possible that it is necessary to imply a power to set aside findings made without inquest in another situation which might arise under the Act. So, if a s. 18 request was made and refused, a s. 18(3) application was then made and granted, and in the meantime the coroner had made findings, the order of this Court could only be given substantive effect if there was an ability to set aside those findings.

Eighth, insofar as the Act appears to contemplate finality of the investigative process, it appears to arise when findings are made after inquest. Even those findings may be voided; but at least in circumstances which are defined and involve an exercise of discretion.

Ninth, there is no reason in principle why a power should not be implied as would permit findings without inquest to be set aside so far as is necessary in order that findings after inquest should not conflict with the former.[17]

The Coroner assumed jurisdiction on a false basis. What is the consequence? According the Solicitor-General's submissions it was enough that there was, objectively viewed, a basis for the assumption of jurisdiction. Counsel for the plaintiff demurred. He submitted that the correct approach required identification of a relevant source of power[18] and here none had been identified. He submitted also that the Court should be slow to accept that another relevant source of power existed when that alternative source of power was not expressly provided for.[19]

The question is whether a relevant source of power to hold an inquest existed. That must be considered objectively, in the sense that it is a question of statutory interpretation and the application of the statute to the circumstances of the case objectively considered. In my opinion there was an available jurisdictional basis - via the interaction of ss. 17(1)(a) and 18(1) - which authorised the Coroner to hold an inquest into Jaidyn Leskie's death; and, so far as was necessary, to void contrary findings made by the Deputy Coroner.

A question then arises whether the source of jurisdiction for the Coroner to hold an inquest - that is, s. 17(1)(a) - gives rise to a problem because his Honour did not consider, in terms, whether under s. 17(3) he should determine not to hold an inquest. The question in some respects may involve a barren exercise; for in my opinion, if the Coroner did not properly invoke an available jurisdiction, he would not be precluded from now doing so and then exercising his powers so as to adopt as evidence before him the evidence hitherto given. Nonetheless, the question must be addressed.

Section 17(3), in a case to which s. 17(1) applies, gives a coroner who is satisfied of the presence of circumstances falling within s. 17(3)(a) or (b) a discretion to determine not to hold an inquest, to adjourn an inquest or not to recommence holding an inquest. The three aspects of the discretion reflect the fact that circumstances falling within paragraph (a) or (b) may arise at different times. Counsel for the plaintiff and the intervener in substance agreed that it is a condition precedent to the exercise of the jurisdiction conferred by s. 17(1)(a) that a coroner has given consideration to the subject-matter of s. 17(3) and - where an inquest has not already commenced - has not determined not to hold an inquest although being satisfied of the presence of paragraph (a) or (b) circumstances[20]

I see no reason not to accept that common position. It would be unsatisfactory to read s. 17(3) to mean that it was no more than a matter of personal choice whether a coroner gave consideration to its subject-matter in a pertinent case.

There being an alternative source of power to that wrongly relied upon by the coroner to found jurisdiction, the exercise of power may be held valid if all conditions antecedent to its valid exercise were satisfied - paraphrasing Heydon J in Eastman v Director of Public Prosecutions (ACT)[21] Section 17(3) having the operation which I have described, a question arises whether the coroner in substance addressed its subject-matter before ordering that an inquest be held.

There was disagreement between the parties as what must be addressed in the exercise of the discretion[22] According to the plaintiff's submission a coroner, upon being satisfied of circumstances falling within s. 17(3)(a) or (b), must consider -

"(a) whether or not all the relevant public issues relating to the death have been canvassed by the criminal law judicial process; (b) the probative value to a coroner of any material not admitted in the criminal law judicial process; (c) the findings that may lawfully be made following an investigation; (d) the emotional burden that holding an inquest would place on relatives and other participants; and (e) the efficient use of the resources available to the coronial service."

According to counsel's submission, that approach to interpretation of s. 17(3) was supported by the Second Reading Speech.[23] He submitted also that the fact of previous trial and acquittal must stand at the forefront in the exercise of a s. 17(3) discretion.

The Solicitor-General submitted, to the contrary, that upon being satisfied of circumstances fitting s. 17(3)(a) or (b) the exercise of the discretion rested simply upon the coroner concluding that it was desirable or undesirable in the circumstances of the case that an inquest be held. Exercise of the discretion should be equated with exercise of the discretion conferred by s. 17(2). The structure of s. 17(3) did not suggest that the fact of completion of the criminal law judicial process was a significant reason not to hold an inquest; for it applied in circumstances both of conviction and acquittal.

In my opinion the discretion vested in a coroner by s. 17(3) is not one in respect of which, by the application of relevant principles, particular matters must be considered. I consider that in its exercise a coroner could properly take into account the first, second, fourth and fifth matters which plaintiff's counsel identified; the third matter is more problematic. But the fact that it would be proper for a coroner to take certain matters into account does not convert them into matters which must be taken into account. The discretion, in my opinion, is a broad general one, to be considered in the context that a coroner is empowered to determine that an inquest not be held where otherwise it would be mandatory, criminal proceedings in connection with the death having been brought and concluded.

Beyond that, and with reference to the present case, it is necessary to remember that s. 17(3) is concerned, relevantly for present purposes - that is, an inquest not having been held - with the question whether an inquest which would otherwise be mandatory should be held after trial and acquittal. That is quite different from the question whether the findings of an inquest should be voided and an inquest reopened because of the existence of circumstances specified in s. 59A(3)(a) or (b). In the one case an inquest has never been commenced and the question is whether an exception should be made to a general provision that in particular circumstances an inquest is mandatory. In the other case the starting point is that an inquest has been held, and findings made. In the latter case, to emphasise the distinction, the inquest might have involved a s. 17(1) death in respect of which a coroner, having considered s. 17(3), had determined to proceed with an inquest.

The Solicitor-General submitted that the Coroner had in substance determined the presence of circumstances enlivening the s. 17(3) discretion. It was clear that he had been satisfied, when he decided to hold the inquest, that the plaintiff had been charged with and acquitted of the child's murder. He had evidently determined, exercising a discretion, that it was desirable to hold an inquest. He had considered, as a matter of fact - not that he was obliged to do so - the five matters identified by the plaintiff's counsel.

The Solicitor-General further submitted that the necessary framework for my determination of the pertinent question had relevantly been stated by Spigelman CJ in VAW (Kurri Kurri) Pty Ltd v Scientific Committee.[24]

Counsel for the plaintiff submitted that the coroner had not considered the key question - that is, whether an inquest should be held at all upon consideration of s. 17(3). The energies of the police advisers, and of his Honour, had been directed to ascertaining whether there were new facts or evidence for the purposes of s. 59A(3)(b). Further, when it became apparent to the Coroner that his assumption of jurisdiction reliant upon s. 59A had been mistaken, his Honour had identified other sources of jurisdiction which significantly did not include s. 17(1)(a); and which made no mention at all of s. 17(3). The Coroner, to the contrary, had said that -

"How the death occurred is not sufficiently described in Coroner West's findings, thereby leaving a number of question unanswered and, along with new evidence, an inquest was desirable."[25]

Plaintiff's counsel submitted also that the Deputy Coroner alone had addressed the question whether an inquest should be held having regard to s. 17(3).[26]

Upon the question of legal principle, counsel submitted that Friends of Merri Creek v Meakin,[27] noted by the Solicitor-General as a case raising somewhat similar circumstances, was not in point. There the decision-maker had not referred to a particular matter in her reasons for decision; but cross-examination satisfied the Court that she had been aware of the relevant consideration and had taken it into account. That was not this case. Counsel referred and relied upon a passage in the judgement of Black CJ in Mercantile Mutual Life Insurance Co Ltd v Australian Securities Commission.[28]

* Certainly knew that circumstances falling within s. 17(3)(a)(i) existed at the time when he decided to hold an inquest.

* Knew that the parents of the child were agitating for a inquest - from which he might reasonably have inferred that the their emotional burden was likely to be the greater if an inquest was not held.

* Had been informed that the plaintiff had said he would welcome an inquest.

* Had been provided with information of facts which had come to light, or knowledge of which had expanded or been refined, since the plaintiff had stood his trial.

* Must be taken to have known what would be the efficient use of the resources of the coronial system.

It was in that state of knowledge that the Coroner determined to hold - he did not speak of re-opening, though he should have done if s. 59A was in point - an inquest into the child's death.

When the Principal Registrar wrote to the solicitor for the child's mother on 21 July 2003 he said simply that -

"The State Coroner has reviewed the additional material supplied by police, and has granted your client's application and ordered that an inquest be held."[29]

It can be said that the Coroner had received requests that he hold an inquest, and that the circumstances were such as could have justified an exercise of discretion under s. 17(3) in favour of doing so. It might be argued that if the Coroner considered it desirable in the circumstances to exercise a discretion to void findings and reopen an inquest under s. 59A, it would follow that consideration of those circumstances in the context of an exercise of discretion under s. 17(1)(a) would yield the same outcome. It might also be argued that it would make no difference to the Coroner's jurisdiction whether the inquest was convened in reliance upon s. 17(1)(a) or s. 59A.

In my opinion, however, despite the fact that the discretions conferred by ss. 17(3) and 59A(2) are cast in general terms, it simply does not follow that the circumstances which are pertinent to and lead to the exercise of the one in a particular manner are circumstances which will be pertinent to and which will lead to the exercise of the other in the same manner. The starting points for the exercise of the discretions are profoundly different. Even if the same circumstances can be pertinent to the exercise of each of them, the significance of such circumstance will not necessarily be the same in the context of the two discretions. The focus of the exercise of discretion under s. 59A is likely to be narrower than will be involved in the exercise of the s. 17(3) discretion. The former is often likely to turn on the desirability of re-opening an inquest because of new facts or evidence, a matter involving consideration whether the new materials are such as might reasonably impugn the findings made. Much broader considerations are likely to be pertinent where a question arises whether a coroner should make an exception to an otherwise mandatory requirement than an inquest be held.

Moreover, it is not true to say, conceptually, that there will be a common consequence in the event of the exercise of the two discretions in favour of holding an inquest. In the case of a s. 17(3) determination, an inquest, as here, might not have been commenced before the exercise of the discretion. But in the case of a s. 59A(2) exercise of discretion the very starting point, by intention, is that an inquest has been held and findings made; and that there has been mistake in the record of the findings or else the emergence of new facts or evidence.

So, in the case of an inquest re-opened under s. 59A(2), there will already be a body of evidence before the coroner; and probably not only findings but explanatory reasons. In the case of an inquest initiated in consequence of an exercise of discretion under s. 17(3)[30], however, there is a clean slate. No question could arise, for example, of a witness being recalled and cross-examined about evidence previously given.

There is another potential distinction in the substance of the inquest which will follow an exercise of discretion under the two sections. Although it might be the case that the s. 59A inquest which is re-opened may be an inquest which was mandated by s. 17(1) and which was not the subject of a. 17(3) determination, often enough that will not be the case. On the other hand, in a case in which, in substance, a coroner determines under s. 17(3) not to except a s. 17(1) death from the requirement of an inquest, the fact that the criminal proceeding has concluded will mean, almost inevitably, that a committal or trial transcript will go into evidence. Such a consequence is not only likely to bear upon the substance of the inquest, it is a matter which might be relevant in a s. 17(3) exercise of discretion.

In my respectful opinion the judgment of Spigelman CJ in VAW is a valuable analysis of the circumstances in which an available head of power may be called upon to validate an exercise of power. His Honour was able to say that -

"In the present case no aspect of the procedure or of substance differed in any material respect depending upon whether the matter was commenced upon the initiative of the Committee or upon nomination by a third party ... the process of public inquiry, the conduct of investigations, ... the scope of relevant considerations, the substance of the tests to be applied and the consequences of the listing did not differ in any respect depending on the source of the initial trigger mechanism."[31]

That was a reference to the consequences of an exercise of power under alternative heads of power, of which one was available and one was not. It did not address the question whether all conditions antecedent to the valid exercise of the available head of power had been satisfied. In that connection, in my opinion, the passage in the judgment of Black CJ cited by plaintiff's counsel is in point.

In this case, applying the authorities, I could not conclude that the Coroner ever addressed circumstances which could have been pertinent to a s. 17(3) exercise of discretion in the quite distinctive context created by that sub-section. Whilst I might hazard a guess what he would have done, it is not for me to do so. Nor is it for me to undertake the discretionary function which the Coroner did not.

It follows from what I have just said that the Coroner's assumption of jurisdiction has not been validated in reliance upon an available head of power. I should add this : conceptually, as I have attempted to demonstrate, it cannot be said that no aspect of procedure or substance would differ in any material respect depending upon whether jurisdiction was founded upon s. 17(1)(a) or s. 59A. But in this case, because in fact there had been no earlier inquest, the mistaken assumption of jurisdiction under s. 59A and an assumption of jurisdiction under s. 17(1)(a) would not have produced any difference in procedure or substance in the ensuing inquest.[32]

Because it might be that the Coroner will assume an available jurisdiction, I should say something about the remaining matters which were argued.

Counsel for the plaintiff submitted that it was clear from the opening address of counsel assisting, from statements made by the investigating police officer attached to the State Coroner's office, from evidence led at the inquest that any finding made by the Coroner would inevitably be a finding that the plaintiff caused or contributed to the child's death. Such a finding, he submitted, would call into question the correctness of the acquittal. It would tend to overturn the verdict. It was unprecedented for a coroner to do such a thing. To permit this to happen would expose the plaintiff to a kind of double jeopardy. There should be no such exposure. The rule against double jeopardy protects an individual from oppression by the State and ensures public confidence in the administration of justice. There were compelling reasons both to prevent oppression and of public policy why the Court should grant a permanent stay of the inquest. It was the worse, counsel added, because the Coroner had subpoenaed the plaintiff to give evidence. It was inevitable that he would be cross-examined to suggest that the jury verdict was wrong.

Counsel cited, in connection with the rule against double jeopardy, Garrett v R,[33] Rogers v R,[34] R v Carroll,[35] Gill and Ors v Walton[36] and Walton v Gardiner and Ors.[37]

It was part of counsel's submission at the outset, I think, that s. 19(1)(e) of the Act compelled the coroner, if possible, to make a finding as to the identity of any person who contributed to the cause of death. But later he submitted that if s. 19(1)(e) had no application a coroner might still make a finding that a person caused or contributed to the death of the child.[38]

The Solicitor-General submitted that the plaintiff's double jeopardy argument lacked any solid foundation. The investigation commenced by the Coroner was a fresh investigation which began at earliest in June 2002. It followed, by operation of a transitional provision, that s. 19(1)(e) - which was repealed by Act No 7 of 1999 - had no application. The Coroner was not required, if possible, to make a finding as to the identity of any person who contributed to the cause of death.[39]

In any event, the Solicitor-General submitted -

* The abuse of process argument was premature in that there was no sufficient basis for concluding that the Coroner would make a non-mandatory finding of contribution.

* The abuse of process argument was misconceived in that Garrett, Rogers and Carroll concerned challenges to criminal prosecutions conducted subsequent to an acquittal or ruling favourable to the accused in an earlier criminal prosecution. That was not this case.

* The position of a person participating in an inquest cannot be equated with the position of a person being prosecuted in a criminal trial. The nature and object of an inquest is quite different to that which informs a criminal trial.

* Even if a non-mandatory finding of contribution was made, there could be no finding that a person was or might be guilty of an offence - vide s. 19(3). So the jury verdict could not be contradicted.

* Even if it was the case that the inquest was directed to the issue of fact determined by the jury, that alone would not constitute an abuse of process. Acquittal in a criminal trial does not preclude civil action against the accused arising out of the same facts.

* Neither does an acquittal inhibit disciplinary proceedings arising out of the same facts.

* The plaintiff is not in fact in jeopardy of criminal prosecutions.

* Whilst it is the case that an inquest is rarely held after acquittal, it is not unprecedented.

* First, it is apparent that the Coroner embarked upon the inquest, and conducted it, on the footing that he was required, if possible, to make findings about each of the matters specified by s. 19(1) before its amendment in 1999. [40]

* Second, whilst it is doubtful, I think that I should accept the Solicitor-General's submission that the Coroner commenced an investigation not earlier than June 2002, in which circumstances the Coroner was not under the mandatory obligation formerly imposed by s. 19(1)(e).

* Third, that does not mean, however, that a coroner may not find contribution. According to Callaway JA in Keown v Khan and anor[41]:

"The finding by a coroner as to how death occurred and the cause of death should, where that is possible, identify any person who contributed to the cause of death. Section 19(1)(e) serves no purpose other than to ensure that that is done."

* Fourth, the nature, object and outcome of an inquest is very substantially different to the nature, object and outcome of a criminal prosecution. The former - without being exhaustive - is investigative, inquisitorial and does not result in findings which bind participants inter partes. The standard of proof which applies is not the criminal standard.

* Fifth, s. 17(3) implicitly contemplates that an inquest may be held notwithstanding trial and acquittal. Such a proceeding may be desirable in a particular case, whether by reason of new facts, or in order to further explore the questions how death occurred and the cause of death, and in that context the question whether some person other than the acquitted person contributed to the cause of death.

* Sixth, s.19(3) give specific protection against a finding that a person has or may have committed an offence.

* Seventh, notwithstanding the fifth and sixth matters just mentioned, it ought be expected that rarely will an inquest be held after acquittal. There should be, I consider, the gravest consideration before a coroner embarks upon an inquest subsequent to acquittal if there is no cogent material pointing to an alternative suspect, or no clearly new and cogent facts or evidence. Counsel for the plaintiff submitted before the Coroner that the public interest and the interest of the public are not the same thing. I agree with the sentiment inherent in that submission.

* Eighth, even so, had the inquest been commenced in reliance upon an available source of power it would not have been appropriate, in my opinion, to permanently stay it as matters now stand. I agree with the Solicitor-General's submission that, all other things apart, such an application would be premature.

Counsel for the plaintiff sought to persuade me, by reference to the opening of senior counsel assisting, statements of the police officer assisting the Coroner and excerpts of evidence, that this was not simply a case in which there was a theoretical prospect of findings being made adverse to his client, it was a matter of near certainty. Hence the corresponding near certainty of double jeopardy.

The Solicitor-General challenged that submission. She pointed to a number of events in the course of the inquest which suggested, she submitted, that the Coroner had approached his task in an even-handed manner, pursuing his necessary investigation thoroughly, disposing of some issues as the inquest proceeded.

The competing submissions were not in truth as contradictory as they might appear. An examination of the transcript shows, as I perceive it, that the Solicitor-General's characterisation of the Coroner's conduct was apt. Indeed, it should be noted that counsel for the plaintiff raised no contention of bias - actual or apprehended - against the Coroner. But that is not to say that the burden of the evidence thus far adduced did not suggest some likelihood that the plaintiff would be implicated in the cause of the child's death.

I do not agree, however, with the submission made for the plaintiff that, in effect, the result of the inquest was shown to be a foregone conclusion at the time when it was halted. That is a significant reason why, in my opinion, the application to permanently stay the inquest (assuming that it had been commenced under an available head of power) was - all other things apart - premature.

* Ninth, assuming for the moment that a stay application could ever succeed, it does not follow that it must await findings by the Coroner. It should be expected, in the event that a fresh inquest was commenced under the available head of power, that the Coroner would give the plaintiff warning of any intention he formed of making findings adverse to the plaintiff. Such warning would give the plaintiff an opportunity of approaching this Court.

* Tenth, it is possible, making the assumption to which I referred a moment ago, that circumstances might arise antecedently to any warning being given in which the plaintiff might approach this Court and seek a permanent stay. I have in mind any attempt by the Coroner to compel the plaintiff, he being unwilling, to give evidence; or to permit certain questions, or require answers to certain questions.

* Eleventh, I should not want it to be thought that a stay application on the grounds of exposure to double jeopardy could ever succeed. As at present advised I consider that the burden of the Solicitor-General's submissions should be accepted. The fourth matter which I mentioned is but one aspect of those submissions.

The plaintiff has made out a case for relief, though not in all respects the relief which he sought. Relief should be granted notwithstanding that the proceeding was late-brought and that in some aspects it was essentially opportunistic.

Subject to anything that counsel wish to say, I will grant declarations and make orders in accordance with the following minutes:

* On or about 21 July 2003 by ordering that an inquest be held into the death of Jaidyn Leskie in the exercise of a discretion under s. 59A of the Coroners Act 1985.

* On or about 26 September 2003 by commencing to hold an inquest pursuant to the said exercise of discretion, and by setting aside findings made by the Deputy State Coroner West on 29 January 2002.

* In the period between 17 November 2003 and 27 February 2004 by continuing to hold the said inquest.

(b) Erred on 7 May 2004 by ruling that he had jurisdiction to continue the said inquest.

(c) Has jurisdiction to hold an inquest into the death of Jaidyn Leskie by virtue of s. 17(1)(a) of the Coroners Act 1985 in the event that, having considered s.17(3), he does not determine not to hold an inquest.

(d) Has implied power, so far as it may be necessary, to set aside any finding made by Deputy State Coroner West on 29 January 2002 in the event that he holds an inquest into the death of Jaidyn Leskie in the circumstances referred to in paragraph 1(c) hereof.

2. Order that the State Coroner be restrained from further proceeding with the hearing of the inquest commenced on 26 September 2003.

I certify that this and the 28 preceding pages are a true copy of the reasons for Judgment of Ashley J of the Supreme Court of Victoria delivered on 17 December 2004.

[1] Which must be recorded - see s. 20 of the Act.

[2] Defined in s. 3 of the Act.

[4] Section 15(2); see also the jurisdiction of the State Coroner set out in s. 7(c) and (d).

[5] And was amended by Act No. 7 of 1999.

[6] The content of "findings" in s. 59 was described in Keown v Khan and anor [1998] VSC 297; [1999] 1 VR 69 at [12]. The same meaning, presumably, attaches to "findings" where used in s. 59A.

[7] The State Coroner, the first defendant, in accordance with convention did not appear.

[8] Keown at [7]; see also Harmsworth v The State Coroner [1989] VicRp 87; [1989] VR 989 at 996-7.

[9] Clancy v West [1995] VICSC 207; [1996] 2 VR 647 at 651-2, 653.

[11] Exhibit MR 5 to the affidavit of Michael Rafter sworn 2 June 2004.

[12] I say nothing as to whether it could have been brought within the language of s. 17(1)(f) by the State Coroner giving the direction there mentioned.

[13] See the report of Senior Sergeant Read dated 27 August 2002, exhibit MR 11 to Mr Rafter's affidavit; and, though not overtly, the report of Detective Senior Sergeant Legg dated 20 June 2003, exhibit MR 14 to Mr Rafter's affidavit.

[14] Amended Originating Motion, Grounds, paragraphs 1, 3, 5, 8, 9, 10 and 11.

[15] Amended Originating Motion, Grounds, paragraph 11A.

[16] Or asked another coroner to do so.

[17] Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1 at 16-17 per Dawson J in the context of a committal proceeding in the Magistrates' Court. Upon this matter, see also a fragment in the judgment of Callaway JA in Boyce v Munro [1998] 4 VR 773 at 777.

[18] Citing Anthony Hordern & Sons Ltd v Amalgamated Clothing & Allied Trade Union of Australia [1932] HCA 9; (1932) 47 CLR 1 at 7.

[19] Citing Johns v Australian Securities Commission [1993] HCA 56; (1993) 178 CLR 408 at 418-420, 426.

[20] The corollary of that commonly adopted position is that if a coroner becomes satisfied of paragraph (a) or (b) circumstances during the course of an inquest, or at a time when an inquest has been adjourned, consideration whether to exercise a discretion in the manner respectively referred to in paragraphs (d) and (e) is a condition precedent to the coroner continuing or recommencing the inquest.

[22] See Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 39.

[23] Hansard, Assembly, 13 April 1995, p. 837.

[25] See Coroner's judgement, exhibit MR 24 to Mr Rafter's affidavit, at p. 6.

[26] He referred to the Deputy Coroner's letter which is exhibit MR 5 to Mr Rafter's affidavit at p 1.

[29] Exhibit MR 15 to Mr Rafter's affidavit.

[30] That is, not to determine that an inquest should not be held.

[32] In either event the trial transcript would have been introduced in the particular case.

[38] Citing Keown v Khan [1998] VSC 297; [1999] 1 VR 69 at 76.

[39] That position, the Solicitor-General noted, had had been adopted by counsel for the plaintiff in the course of the application before the Coroner to desist from continuing the inquest.

[40] See, for example, the opening of senior counsel assisting, Inquest T.5-6; and the Coroner's remarks at Inquest T.42.

At a glance

Court

Decision date

Before

Source

Judgment (177 paragraphs)

Parties

Cases Cited (12)