Innes & 2 ors v NSW Senior Deputy State Coroner; Commissioner of Police v NSW Senior Deputy State Coroner

15396/2007: P1: Stephen Innes P2: Benjamin Preston P3: Gail Symington PARTIES : D: Her Honour Senior Deputy State Coroner Milledge

15348/2007: P: Commissioner of Police D: Senior Deputy State Coroner for New South Wales

15396/2007: P1-P3: G. Craddock SC D: M.G. Sexton SC SG / B.K. Baker COUNSEL : 15348/2007: P: P. Biggins D: M.G. Sexton SC SG / B.K. Baker

15396/2007: P1-P3: Kenneth Madden (Walter Madden Jenkins) D: I V Knight (Crown Solicitor) SOLICITORS : 15348/2007: P: Alexander Kohn (Makinson & d'Apice Lawyers) D: I V Knight (Crown Solicitor)

LOWER COURT JUDICIAL OFFICER : New South Wales Senior Deputy State Coroner Magistrate Milledge LCM

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

015348/07 Commissioner of Police v Senior Deputy State Coroner for New South Wales;

015396/07 Stephen Innes & 2 Ors v New South Wales Senior Deputy State Coroner Magistrate J Milledge

JUDGMENT 1 ROTHMAN J: Ms Vanessa Hardy died in a car accident on 12 October 2003. She was a passenger in the car that immediately before the accident was being driven near Brewarrina by Mr Joseph Shillingsworth. Mr Shillingsworth lost control of the car while the police were pursuing him in another vehicle. 2 A coroner's inquest held into the death of Ms Hardy was terminated because her Honour Ms Milledge LCM, the Deputy State Coroner, came to the view that the evidence was capable of proving the guilt of Mr Shillingsworth and referred the matter to the Director of Public Prosecutions who charged Mr Shillingsworth. 3 Mr Shillingsworth pleaded guilty to certain offences arising from the accident and death, was sentenced and has now served his sentence. 4 The family of Ms Hardy, on 11 December 2006, through their solicitor, Mr Peter Bugden, of the Aboriginal Legal Service, wrote to her Honour the Deputy State Coroner, seeking, on behalf of the family, a further or fresh proceedings dealing with remaining issues. 5 On 20 July 2007 the parties to the original inquest were informed that the inquest would be "re-listed for further hearing" on 30 October 2007. On 11 October 2007, the matter was re-listed to hear objection to it proceeding. 6 The Commissioner of Police and three police officers seek orders the effect of which would be to stop the hearing occurring on 30 October 2007, or, it seems, at all. 7 While there is reference in the transcript to the letter from Mr Budgen being received at a time that the learned Deputy State Coroner was the Acting State Coroner (Transcript 11.10.07, page 2), it is unchallenged and/or conceded that no relevant step was taken by her Honour in that capacity. 8 Her Honour, most properly, submitted to any order of this Court (save as to costs) and the Attorney-General appeared as amicus curiae and as contradictor in the proceedings. The Legislation 9 The legislation, the Coroners Act 1980 (NSW), must be read as a whole. Relevant background provisions should be noted, including the definition of State Coroner and Deputy State Coroner (section 4A), the functions of the State Coroner (section 4D) and Deputy State Coroner (section 4F), and the jurisdiction and limitations to jurisdiction in section 8 of the Act. 10 However, the most relevant provisions are those contained in section 13A, section 19, section 20, section 23 and section 23A of the Act. They are in the following terms: "13A(1) A coroner who is the State Coroner or a Deputy State Coroner has jurisdiction to hold an inquest concerning the death or suspected death of a person if it appears to the coroner that the person has died or that there is reasonable cause to suspect that the person has died: (a) while in the custody of a police officer or in other lawful custody, or while escaping or attempting to escape from the custody of a police officer or other lawful custody, or (b) as a result of or in the course of police operations, or (c) while in, or temporarily absent from, a detention centre within the meaning of the Children (Detention Centres) Act 1987 , a correctional centre within the meaning of the Crimes (Administration of Sentences) Act 1999 or a lock-up, and of which the person was an inmate, or (d) while proceeding to an institution referred to in paragraph (c), for the purpose of being admitted as an inmate of the institution and while in the company of a police officer or other official charged with the person's care or custody. (2) If jurisdiction to hold an inquest arises under both this section and section 13, an inquest is not to be held except by the State Coroner or a Deputy State Coroner.

19(1) This section applies if: (a) before an inquest or inquiry commences or at any time during the course of an inquest or inquiry, it appears to the coroner that a person has been charged with an indictable offence, or (b) at any time during the course of an inquest or inquiry, the coroner is of the opinion that, having regard to all the evidence given up to that time: (i) the evidence is capable of satisfying a jury beyond reasonable doubt that a known person has committed an indictable offence, and (ii) there is a reasonable prospect that a jury would convict the known person of the indictable offence, and the indictable offence is one in which the question whether the person charged or the known person caused the death or suspected death or the fire or explosion is in issue. (1A) If this section applies to an inquest or inquiry as provided by subsection (1) (a), the coroner may commence the inquest or inquiry, or continue it if it has commenced, but only for the purpose of taking evidence to establish: (a) in the case of an inquest-the death, the identity of the deceased and the date and place of death, or (b) in the case of an inquiry-the date and place of the fire or explosion, and, after taking that evidence, or if that evidence has been taken, must terminate the inquest or inquiry and, if there is a jury, must discharge the jury. (1B) If this section applies to an inquest as provided by subsection (1) (b), the coroner may continue the inquest and: (a) record under section 22 (1) the findings of the coroner or, if there is a jury, the verdict of the jury, or (b) after taking evidence to establish the death, the identity of the deceased and the date and place of death-terminate the inquest and, if there is a jury, discharge the jury. (1C) If this section applies to an inquiry as provided by subsection (1) (b), the coroner may continue the inquiry and: (a) record under section 22 (2) the findings of the coroner or, if there is a jury, the verdict of the jury, or (b) after taking evidence to establish the date and place of the fire or explosion-terminate the inquiry and, if there is a jury, discharge the jury. (2) The coroner is required to forward to the Director of Public Prosecutions the depositions taken at an inquest or inquiry to which this section applies together with a statement that is signed by the coroner and specifies, in the case of an inquest or inquiry referred to in subsection (1) (b), the name of the known person, and the particulars of the offence, so referred to.

20(1) Notwithstanding that, under section 19 (1A), (1B) or (1C), a coroner decides not to commence, or terminates, an inquest concerning the death or suspected death of a person or an inquiry concerning a fire or explosion, an inquest or a fresh inquest concerning that death or suspected death, or an inquiry or a fresh inquiry concerning that fire or explosion, as the case may be, may subsequently be held under this Act, but shall not be held: (a) where a person has been charged with an indictable offence in which the question whether the person caused the death or suspected death or the fire or explosion is in issue (including where a person has been so charged after the coroner has terminated the inquest or inquiry after coming to the opinion referred to in section 19 (1) (b)), until: (i) the charge is finally dealt with on the committal of that person for trial for the offence to a sittings of the Supreme Court or the District Court or on the person's committal to either of those courts to be dealt with as provided in Division 5 of Part 2 of Chapter 3 of the Criminal Procedure Act 1986 , (ii) the Attorney-General or the Director of Public Prosecutions directs that no further proceedings be taken against that person in respect of the charge, or (iii) a Magistrate orders that the person be discharged from proceedings with respect to the offence, or (b) where the coroner has terminated the inquest or inquiry after coming to the opinion referred to in section 19 (1) (b) and neither the person named in the statement referred to in section 19 (2) nor any other person has been charged with an indictable offence in which the question whether the person so named or that other person caused the death or suspected death or the fire or explosion is in issue-until the Attorney-General or the Director of Public Prosecutions directs that no proceedings be taken against the person so named for the indictable offence particulars of which are set out in the statement. (2) For the purposes of subsection (1) (a) (i), a charge shall be deemed to be finally dealt with when no further appeal can be made in respect thereof without an extension of time being granted by the Court of Criminal Appeal or without special leave of the High Court of Australia.

23(1) Notwithstanding that an inquest concerning the death or suspected death of a person: (a) is terminated under section 21 (1) (a), or (b) is concluded and the coroner's findings are, or the jury's verdict recorded under section 22 is, that the person has not died or it is uncertain whether the person has died, a fresh inquest concerning the death or suspected death may subsequently be held under this Act. (2) Where the remains of a person are found in this State, an inquest concerning the death of the person may be held notwithstanding that an inquest concerning the suspected death of the person has been held.

23A(1) A fresh inquest or inquiry must be held into a death, suspected death, fire or explosion that was the subject of an inquest or inquiry that has been held if: (a) an application for the fresh inquest or inquiry is made under this section, and (b) on the basis of the application, the State Coroner is of the opinion that the discovery of new evidence or facts makes it necessary or desirable in the interests of justice to hold a fresh inquest or inquiry. (2) An application for a fresh inquest or inquiry may only be made by a police officer or by a person who was granted leave to appear or be represented at a previous inquest or inquiry into the death, suspected death, fire or explosion concerned. (3) The State Coroner can hold the fresh inquest or inquiry or can direct another coroner to hold it. (4) The findings on the fresh inquest or inquiry may be expressed to be in addition to or in substitution for the findings on any previous inquest or inquiry (even if the previous inquest or inquiry was a fresh inquest or inquiry held under this section). (5) This section does not limit or otherwise affect any other power of a coroner (including the State Coroner) to hold a fresh inquest or inquiry and does not interfere with the provisions of this Act with respect to the termination of inquests." The Decision of Her Honour 11 Her Honour purported to act under section 23A. Whatever the full effect of section 23A may be, to some of which I will later return, it is only the State Coroner that may exercise power under that provision or is required to act under that provision. At no relevant time did the learned Deputy State Coroner act in that capacity. Section 23A of the Act cannot be the source of the re-listing. 12 The Attorney-General, who appeared as contradictor, concedes that section 23A of the Act was not available as a source of the decision to "re-list" the matter. Nevertheless, the Attorney-General submits that section 20 of the Act authorises the proceeding on 30 October 2007 and following. He submits, in my view correctly, that the nomination of an incorrect source of power for an act does not invalidate the act, if another source of power is available and that source of power does not alter the task to be undertaken or the consequences of its exercise: VAW (Kurri Kurri) Pty Ltd v Scientific Committee [2003] NSWCA 297; R v Graham; ex parte Moore (1977) 138 CLR 164. Analysis of Power Conferred 13 The crucial question is the breadth of power, if any, reposed in her Honour by the terms of section 20 of the Act. It is necessary to determine its purpose and its place in the operation of the statute. 14 As can be seen from the provisions of section 13A, where a person dies in the course of a police operation, the State Coroner or a Deputy State Coroner is required to conduct an inquest. This was done in 2004-2005 by her Honour as Deputy State Coroner. 15 The inquest was terminated on 18 March 2005 because in accordance with the provisions of section 19(1)(b) of the Act, her Honour came to the view that the evidence before her was capable of satisfying a jury beyond reasonable doubt that a known person, Mr Shillingsworth, had committed an indictable offence and that there were reasonable prospects of conviction arising from the conduct that caused the death. 16 As earlier set out, such a finding significantly constrains the function of the coroner by limiting it to establishing that death occurred, the identity of the deceased and the date and place of death: see section 19(1A)(a); and the coroner must refer the matter to the DPP, as she did. 17 The termination and the constraining of the role precluded the coroner proceeding to make findings as to the manner and cause of the person's death (section 22(1)(c)) and recommendations in relation to any matter connected with the death in question (section 22A(1) of the Act). 18 Section 23A of the Act grants, as has been stated, a power to the State Coroner (and requires its exercise) to hold a fresh inquest if application is made for such by one of a number of designated persons, including, in this case, the family of the deceased if, on the basis of the application, the State Coroner were of the opinion that the discovery of new evidence or facts makes it necessary or desirable in the interests of justice to do so. 19 Without more, section 23A of the Act would, in this case, have no work to do. Section 19 precludes the commencement of an inquest (or its continuation) in the circumstances found to exist by her Honour on 18 March 2005. The provisions of section 19 are expressly not interfered with by the provisions of section 23A of the Act: see section 23A(5). Thus, leaving aside for present purposes the operation and effect of section 20, section 19 of the Act would prevail over the terms of section 23A and no further inquest could be held, assuming, as I do, that the requisite preconditions were otherwise satisfied. 20 I turn then to section 20 of the Act. Relevantly it provides that even though there is otherwise a prohibition on the commencement or continuation of any inquest, after the termination of the inquest of the kind effected here, a further inquest may be conducted provided, relevantly, that any charges arising have been finally dealt with. 21 There is no issue in these proceedings that the charges (or any charges) against Mr Shillingsworth have been finally dealt with and that section 20 operates. 22 During the course of argument I suggested that section 20 and section 23A of the Act had fundamentally different spheres of operation. That is not so. Section 20 operates to allow the State Coroner to exercise the function reposed in her by section 23A in relation to an inquest that has been terminated and may otherwise not be able to be commenced or re-commenced. 23 But section 20 goes further than section 23A of the Act. Whereas section 23A deals only with the holding of a fresh inquest where there has been a previous inquest, section 20 deals also with the commencement of an inquest in circumstances where none has previously been held. However, such an inquest would be commenced, subject to section 19 of the Act, under the provisions of section 13, section 13A and section 17 of the Act. 24 Moreover, section 20 does not deal with who would conduct such an inquest, how it would be re-agitated and who, if anybody would re-agitate it. In other words, section 20 overcomes the restrictions imposed by section 19 of the Act, subject to the satisfaction of the conditions prescribed in section 20. It is to other provisions of the Act that one must look in order to find the specific power to require the holding of a further inquest upon application of a party. 25 Section 23A is the specific power for the holding of a fresh inquest and overrides the provisions of section 20 of the Act to the extent that section 20 is a grant of power at all. In Saraswati v R (1991) 172 CLR 1, the High Court said: "In Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia , Gavan Duffy CJ and Dixon J said: 'When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power.' Their Honours went on to say: 'An affirmative grant of such a power, so qualified, appears necessarily to imply a negative. It involves a denial of a power to do the same thing in the same case free from the conditions and qualifications prescribed by the provision.' The principle that a statutory power, expressed in general form, is not to be construed so as to avoid any condition or limitation placed on the exercise of a specific power has been recognised in this Court on other occasions: see R v Wallis; Leon Fink Holdings Pty Ltd v Australian Film Commission . In Leon Fink , Mason J said: 'It is accepted that when a statute confers both a general power, not subject to limitations and qualifications, and a special power, subject to limitations and qualifications, the general power cannot be exercised to do that which is the subject of the special power.'" 26 If section 20 were a grant of power of the kind submitted by the Attorney-General, there would be no need for section 23A of the Act. While section 23A of the Act requires the holding of an inquest, as distinct from merely allowing it to be held, it does so only if the State Coroner takes the view that it is necessary or desirable in the interests of justice. It is inconceivable that the State Coroner would come to that view and not hold an inquest: see by analogy Finance Facilities Pty Ltd v Commissioner of Taxation (1971) 127 CLR 106. 27 On the other hand, section 20, if it were construed in the manner submitted by the Attorney-General, would avoid the necessity for the formation of opinion, would allow any coroner to hold the inquest, and would seem to allow it without any application and on the coroner's own motion. 28 A submission was made that the source of the power to reopen the inquiry was section 23 of the Coroners Act. This submission was put faintly and at one stage it seemed that this submission was abandoned. For similar reasons to the analysis of section 20 of the Act, this too cannot be a source of the power. The mere fact that the wrong provision of the Act was identified would not invalidate the conduct. But an exercise of power under section 23(1) of the Act is conditioned on one of two preconditions neither of which has been satisfied. Those preconditions relate either to a finding that a person has not died (under section 21(1)(a) of the Act) or to an uncertainty as to whether a person has died. Neither situation is relevant to this matter. 29 Further the general provisions of section 23(2) of the Act seem to relate to inquiries held after another inquiry that was held beyond the jurisdictional limits of this State. However, even if it were not so restricted, if section 23(2) were construed in the manner suggested, it would render otiose the specific restrictions in section 23A of the Act and allow any coroner to hold a further inquiry. In that way section 23 would thereby override the preconditions on a further inquiry imposed in section 23A of the Act. Like section 20, the terms of section 23 do not specify who can hold such an inquiry, only that an inquiry may be held. 30 An application for a further inquiry having been made, such application must be dealt with under section 23A of the Act and not by any means that would avoid those specific requirements. 31 The terms of section 23A(5) of the Act still have effect because section 20 may be utilised in conjunction with section 13 of the Act (and other sections), in circumstances described in section 19, which have caused the coroner not to commence the inquiry. Conclusion 32 Her Honour did not have the capacity to exercise any power conferred by section 23A of the Act. Further neither section 20 nor section 23 of the Act empowers her Honour to hold the inquest in the manner currently suggested and without any exercise of power under section 23A of the Act. 33 The above does not necessarily mean that an inquest into this matter cannot proceed on 30 October 2007. But, in order for an inquest to proceed on that date, there must be the formation of an opinion by the State Coroner, on the basis of the application of the family on 11 December 2006 or some other application by them or another party, that it is in the interests of justice for the inquest to be conducted. It is possible for such an exercise to be delegated by the State Coroner: see section 4E of the Act. If the State Coroner or her delegate is of the required opinion, then any coroner may conduct the inquest (section 23A(3)) on the basis of the previous evidence (section 33A of the Act). Any such inquest would not be the "re-listing" of the previous inquest but a fresh or further inquest. 34 I grant leave to the parties to approach on short notice and I direct the parties to confer on the form of orders, if any, appropriate to reflect these reasons. **********

29/10/2007 - case name cited incorrectly. - Paragraph(s) Coversheet & [12]. 22/11/2007 - [10] - altered to include section 23; [19] - "... the terms of section 20 and no further ..." altered to "... the terms of section 23A and no further ..."; [28]-[34] - addtional paragraphs [28]-[31] inserted. - Paragraph(s) 10, 19, 28-34

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