Josephine Conway v Mary Jerram, Magistrate and NSW State Coroner & Anor

Josephine Conway v Mary Jerram, Magistrate and NSW State Coroner & Anor - [2010] NSWSC 371 - NSWSC 2010 case summary — Zoe

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Crash Investigation attended and enquiries still continuing." 9 There were statements dated 13 November 2003 which disclosed the identification of the body as that of M. 10 There was an interim report to the Coroner signed by Dr Szentmariay on 12 November 2003 recording that blood and tissue samples were taken for examination. There was a document signed by G.L Hansen on 25 November 2003 recording the results of tests done on blood and urine samples. No presence was detected in any of the samples of cannabinoids, opiates, amphetamines, benzodiazepines, methadone, cocaine, barbiturates or alcohol. 11 There was an Autopsy Report for the Coroner dated 28 June 2004. The author was Dr Szentmariay. After repeating the circumstances of the collision, extracted from police reports, Dr Szentmariay continued- "Postmortem examination revealed a large gaping laceration on the left side of the forehead with underlying fracture of the left frontal skull bone, with continuation of the fracture line backwards and to the right side forming a base of the skull fracture. Neuropathological examination revealed multiple foci of recent contusions in the brain (both frontal lobes, right parietal lobe, left temporal lobe, right occipital lobe). Haemorrhage was present in the corpus callosum (area connecting the hemispheres) and in the pons, these findings in characteristic locations indicate diffuse traumatic brain injury. Chest injuries included soft tissue haemorrhage in front of the heart, haemorrhage of both pulmonary radices, moderate bilateral blood aspiration. Blood was also present in the major bronchi. Posterior neck dissection failed to reveal fracture or joint separation of spine. No significant abdominal injuries were present. The left femur was fractured, multiple contusions were present over the upper and lower extremities and the abdomen. Multiple irregularity shaped scars, measuring up to 80mm in largest dimension were present on both upper extremities. There was no seat belt inflicted injury evident. Toxicological examination revealed no alcohol or drugs in her system." 12 Dr Szentmariay went on to set out his pathological findings. It is unnecessary to repeat them. There followed five pages in which the injuries suffered by M were dealt with in considerable detail. The external and internal examinations of the body were dealt with in the detail usual to a report of that kind. 13 The opinion of Dr Szentmariay was that the direct cause, the disease or condition directing leading to death, was head injury. Dr Szentmariay considered that there were no antecedent causes. 14 Ordinarily such reports, explaining, as is acknowledged to be the case, that the deceased person was a passenger in a car which was involved in a serious collision and received head injuries which were the direct cause of death, would be considered adequate to justify a reliable and satisfactory finding as to the manner and cause of death. That is the position the second defendant takes. However, the plaintiff's case is that an inquest is necessary in order to examine and understand events that took place in the life of M for a considerable number of months, even years, immediately before the night on which she died. Mr Hoy of Senior Counsel, for the plaintiff, submits that although the cause of death is established, the manner of death is not. The manner of death can only be ascertained at an inquest.

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(f) the child was the subject of a pre-natal report under section 25 and the birth mother of the child did not engage successfully with support services to eliminate, or minimise to the lowest level reasonably practical, the risk factors that gave rise to the report. " 18 Officers of the Department wrote a Risk of Harm report. A contemporary account reported that M had threatened to jump off the second floor balcony of the school building. She attempted to climb up the railing and was pulled back by one of her friends. When the reporter arrived at the scene M was lying on the cement of the balcony in a foetal position. M was attended to by experts and allowed to leave. The reporter considered that the problem related to M's mother being against her relationship with a young person, who may have been the one I have mentioned. M's mother was described as having been "extremely supportive" up to that time but as refusing to have M back at home because of attention seeking and behavioural problems. The problems had been going on for three years. The reporter described M as a "drama queen". 19 The principal problem was described as suicide risk. Secondary problems were homelessness, behaviour management difficulties and parent-adolescent conflict. 20 On 5 June 2002 M herself reported to the Department and a Risk of Harm report was made. She said that after the incident at school she had returned home and that her mother had told her off. She decided that she could not stay in the same house as her mother and told her so. She intended to stay, I think, with the family I have already mentioned. Her mother objected. She then proposed living with somebody else. Since then she had been living with various friends. She had contacted a number of refuges and needed a referral letter from the Department to gain entry to one of them. She was not prepared to tell officers of the Department where she was living. The problems were stated by the author of the report as being allegations of homelessness, conflict between M and her mother, depression and a request for assistance with accommodation and support. It was noted that there had been a "past suicide attempt" (emphasis added). 21 A further Risk of Harm report was written on 17 July 2002. It recorded that when the reporter saw M on 19 May (sic) 2002 she had on the inside of her wrist what was thought to be a self-inflicted cigarette burn. She was then living in a youth refuge. The report mentioned depressive symptoms and anti-depressant medication. 22 A further Risk of Harm report was written on 19 August 2002. The reporter recorded that M had left the youth house the previous Saturday 17 August 2002 to stay the night at her father's. She did not stay there, however, and had not returned to the youth house. The recorded concerns were for the safety, welfare and well-being of M. She was said to be at risk of physical abuse or ill treatment or of sexual abuse or ill treatment, though how those conclusions were arrived at was not stated. 23 The next Risk of Harm report was written on 5 September 2002. It recorded that M had returned to the youth house, having visited her father. She had "accepted consequences for her unsafe behaviour". 24 The next Risk of Harm report was written on 13 October 2002. M had left the refuge and said that she was going to the Gold Coast to live with a girlfriend. The address of that premises was not known. M's whereabouts were unknown. 25 An officer of the youth house at Byron Bay, where M had been staying, reported to the police that she was missing. 26 In June 2003 M moved to Sydney to stay with her grandmother. On 18 June 2003 a further Risk of Harm report was written. M had been evicted from a refuge at Sutherland. She had been staying at another refuge. Again the concerns seem to have been about her unwillingness to abide by the directions of those administering the several refuges she had stayed in and homelessness. Fears continued to be expressed about risk of harm, but there was no report of actual harm, whether physical or sexual, since the report of what appeared to be a cigarette burn. 27 The next Risk of Harm report was written on 14 August 2003. The concern was with the absence of secure accommodation. 28 On 23 August 2003 M was living at a cottage in Bondi. She became distressed and was screaming that she wanted to leave the refuge and kill herself. Ambulance officers and police were called. She violently resisted the efforts of those who tried to assist her. She had to be sedated. She was taken to St Vincent's Hospital. She was seen by a psychiatrist but released into the care of a youth worker at the cottage where she was residing. A further note stated that by 27 August M was much better and appeared to be fitting in well at the refuge. 29 On 27 September 2003 there was a further Risk of Harm report. The concern, as in the past, was homelessness. On 27 September M moved into a refuge at Parramatta. She had left by the 4th of October. 30 On 23 October 2003 there was a further Risk of Harm report. M got in touch with officers of the Department and told them that she had nowhere to live. They found emergency accommodation for her at Leichhardt. She remained there until 31 October. Later on she left that place and emergency accommodation was found for her at Central Railway. 31 On 29 October 2003 M was referred to the Mental Health Service for what were described as manic symptoms. 32 On the following day she was admitted by ambulance to Royal Prince Alfred Hospital with an infection of a foot injury. She refused to inform staff of her family details. She refused to stay in hospital overnight. 33 On 31 October 2003 she moved into an hotel at Broadway and on 7 November returned to a refuge at Glebe. She was evicted from that place and moved into oasis accommodation at Surry Hills. On 10 November she moved out of that place. 34 On 11 November 2003 M appears to have made attempts to obtain accommodation. She was invited by the young person who eventually drove the car to go to his house at Leichhardt. She did so.

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(3) The Supreme Court may make an order that an inquest be held if it is satisfied that it is necessary or desirable in the interests of justice. " 38 Having set out those sections, Tadgell JA continued- "No doubt s18(3) is to be understood to confer a jurisdiction upon the Supreme Court to override a decision taken under s18(1)(b). It would appear, however, to be a jurisdiction exercisable sparingly. The Supreme Court's jurisdiction to order an inquest to be held has existed in Victoria since the enactment of s10 of the Coroners Act 1911, a provision that was repeated in successive Coroners Acts until that of 1958. The section copied s6 of the United Kingdom Coroners Act 1887, now substantially re-enacted as s13 of the Coroners Act 1988. It is interesting that, in all the years since its first enactment, there does not appear to be any reported exercise of the jurisdiction following a refusal to hold an inquest. The United Kingdom section requires, as did the Victorian equivalent until 1958, that an application for the exercise of the Court's jurisdiction be made by or under the authority of a law officer. The present s18(3) contains no such limitation but it is to be noted that by s17(1)(e) the Attorney-General may apparently directly achieve what could previously have been achieved only by court order. Having regard to this and to the extended discretion given by the 1985 Act to a coroner, it may be expected that occasion for the Court's exercise of jurisdiction under s18(3) will be rare." 39 I do not take his Honour's remarks to be doing anything other than saying that in practice, because of the various ways in which an order or direction for an inquest might be obtained in Victoria, cases in which the Supreme Court makes such an order likely to be rare. I do not understand the Court to have been suggesting that where a court concludes that the interests of justice make it necessary or desirable to order an inquest, the Court should do other than give effect to that conclusion. I do not read the judgment as enjoining caution. In my view, this Court should not hesitate to order an inquest if, after considering the evidence, it concludes that the interests of justice make it necessary or desirable to do so. In Knight v FP Special Assets Limited (1992) 174 CLR 178 Gaudron J said At 205- "It is contrary to long-established principle and wholly inappropriate that the grant of power to a court (including the conferral of jurisdiction) should be construed as subject to a limitation not appearing in the words of that grant. Save for a qualification which I shall later mention, a grant of power should be construed in accordance with ordinary principles and, thus, the words used should be given their full meaning unless there is something to indicate to the contrary. Powers conferred on a court are powers which must be exercised judicially and in accordance with legal principle. This consideration leads to the qualification to which I earlier referred. The necessity for the power to be exercised judicially tends in favour of the most liberal construction, for it denies the validity of considerations which might limit a grant of power to some different body, including, for example, that the power might be exercised arbitrarily or capriciously or to work oppression or abuse."

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Manner of death 40 Mr Hoy, Senior Counsel for the plaintiff, accepts that it is neither necessary nor desirable to have an inquest to establish the identity of the deceased, the time and place of her death or the cause of her death. He submits that it is necessary to have an inquest, however, to establish the manner of her death. He submits that the word "manner" in the expression "manner and cause of death" should be construed liberally. 41 Neither "manner" nor "manner and cause" is defined in the Act. Mr Hoy drew the attention of the Court to a number of authorities dealing with the wide discretionary powers of the Court (which are not in doubt) but they are of no direct assistance in deciding what is meant in context by the word "manner". 42 There appears to be no reported case in New South Wales dealing with the meaning of the operative words. 43 The office of Coroner is an ancient one, founded in England in the twelfth century, that in which the common law came into being. Originally the duties of holders of the office were governed by the common law. Nowadays the several jurisdictions that have coroners have enacted statutes which, inter alia, prescribe their duties. Since the laws of all the States and Territories of Australia largely derive directly or indirectly from the laws of England, assistance may be gained from decisions of the courts of those jurisdictions. 44 The relevant law in England is set forth in the Coroners Act 1988 and the Coroners Rules 1984, promulgated under an Act of 1887. Section 11(5) of the 1988 Act is as follows- " (5) An inquisition- (a) shall be in writing under the hand of the coroner and, in the case of an inquest held with a jury, under the hands of the jurors who concur in the verdict; (b) shall set out, so far as such particulars have been proved (i) who the deceased was; and (ii) how, when and where the deceased came by his death; and (c) shall be in such form as the Lord Chancellor may by rules made by statutory instrument from time to time prescribe. " 45 Rule 36 (1) is as follows -

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(1) An inquest is a fact-finding inquiry conducted by a coroner, with or without a jury, to establish reliable answers to four important but limited factual questions. The first of these relates to the identity of the deceased, the second to the place of his death, the third to the time of death. In most cases these questions are not hard to answer but in a minority of cases the answer may be problematical. The fourth question, and that to which evidence and inquiry are most often and most closely directed, relates to how the deceased came by his death. Rule 36 requires that the proceedings and evidence shall be directed solely to ascertaining these matters and forbids any expression of opinion on any other matter. (2) Both in s 11(5)(b)(ii) of the 1988 Act and in r 36(1)(b) of the 1984 rules, 'how' is to be understood as meaning 'by what means'. It is noteworthy that the task is not to ascertain how the deceased died, which might raise general and far-reaching issues, but 'how … the deceased came by his death', a more limited question directed to the means by which the deceased came by his death. …" 47 However, in Regina (Middleton) v West Somerset Coroner [2004] 2 AC 182 the interpretation in R v H M Coroner for North Humberside and Scunthorpe was treated by Lord Bingham himself as being "narrow". 48 In Regina (Sacker) v West Yorkshire Coroner [2004] UKHL 11 the members of the House of Lords, after referring to R v H M Coroner for North Humberside and Scunthorpe, considered that the word "how" in s 11(5)(b)(ii) should be interpreted not as connoting "by what means" but as bearing the broader meaning "by what means and in what circumstances". The change of interpretation was required to honour international obligations under the European Convention for the Protection of Human Rights and Fundamental Freedoms as scheduled to the Human Rights Act 1988. That Convention does not bear upon this Court's consideration. However, I think the case persuasive, not least because of similar views expressed in Australian cases. 49 In Queensland, the relevant words of s 24(1)(c) Coroners Act 1958, now repealed, were, as in the English legislation "when, where and how the death occurred". Now, s 45(2) of the Coroners Act 2003 requires the coroner if possible to find (b) how the person died, and (e) what caused the person to die. 50 In Atkinson v Morrow [2005] QSC 92 Mullins J was considering the meaning of the phrase "how the death occurred" in the repealed Act. His Honour was of the opinion that it should be given the broad construction of "by what means and in what circumstances the death occurred": see [32]. An appeal to the Full Court was dismissed: Atkinson v Morrow [2006] 1 Qd R 397. 51 Section 25 of the Coroners Act 1996 of Western Australia is, relevantly in terms identical to those of the Victorian Act. In Re State Coroner; Ex parte Minister for Health [2009] WASCA 165 Buss JA, with whom the other members of the court agreed, expressed the opinion that the jurisdiction and obligation to find, if possible, how death occurred referred not only to the means or mechanism by which the death was suffered or inflicted but extended to the circumstances attending the death. A construction which entitled and required the coroner to find, if possible, by what means and in what circumstances the death occurred reflected the public interest. His Honour referred to the decision of the Queensland Court of Appeal in Atkinson v Morrow. 52 It seems to me in view of these authorities that the phrase "manner of death" should be given a broad construction so as to enable the coroner to consider by what means and in what circumstances the death occurred.

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Limits of the Coroner's jurisdiction 53 Nevertheless, in construing the expression "manner of death" in a broad way, the court must bear firmly in mind the limits to the coroner's jurisdiction. In 1826 Lord Bacon wrote this in his Maxims of the Law, Regula I- "It were infinite for the law to consider the causes of causes, and their impulsions one of another; therefore it contenteth itself with the immediate cause, and judgeth of acts by that, without looking to any further degree." 54 In Harmsworth v State Coroner [1989] VR 989 Nathan J was concerned about the limits of the Victorian Coroners jurisdiction to consider the circumstances of the death of a number of deceased persons, and particularly how death occurred. There had been a fire at a gaol in Victoria and a number of inmates had died. His Honour said this at 995-996- "The coroner's source of power of investigation arises from the particular death or fire. A coroner does not have general powers of enquiry or detection (see s15(1) and s17(1)). The enquiry must be relevant, in the legal sense to the death or fire, this brings into focus the concept of remoteness". Of course the prisoners would not have died, if they had not been in prison. The sociological factors which related to the causes of their imprisonment could not be remotely relevant. This can be tested by considering how wide, prolix and indeterminate the inquest might be if each of the many facets of the individual personalities, of all those involved were to be considered. A coroner would be confronted with a need to enquire into the personal peculiarities of all of the prisoners who barricaded themselves in. Both those who relented and those who did not. Whether for example, one group or person suborned others, and if so why and how. The personalities of all of the prison officers who interacted with all of the prisoners could also be investigated. Even the interaction of all of the other prisoners at any time in Jika with the deceased. Such an inquest would never end, but worse it could never arrive at the coherent, let alone concise, findings required by the Act, which are the causes of death, etc. Such an inquest could certainly provide material for much comment. Such discursive investigations are not envisaged nor empowered by the Act. They are not within jurisdictional power. Enquiries must be directed to specific ends. That is the making of the findings as required and set out in s19(1)."

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Resolution 61 Although I have some doubts about some of the assertions of fact incorporated in Mr Hoy's submissions, for example whether there was ever one attempt at suicide, let alone more than one, and whether in the absence of clear evidence, M was mentally ill, I am prepared for present purposes to regard all the claims made as established. The question remains whether the litany of matters relied on can bear upon the question that a coroner would have to ask, and if possible answer, at an inquest, namely, adopting the broad interpretation I have proposed, by what means and in what circumstances did the death of M occur. I have come to the conclusion that those matters cannot bear upon the question. They are in my opinion too remote and would be beyond the proper limits of the Coroner's jurisdiction. What, if anything, telephone records might reveal or lead to is speculative. It seems to me that the means by which and the circumstances in which the death of M occurred are explained by the circumstances set forth in the reports to the coroner made by the police officers and by the pathologist. To go any further back in time than the time at which M became a passenger in the motor vehicle driven by the young man would be to enter upon an inquiry that might never end. 62 Two further matters were relied on by Mr Hoy as justifying the wide-ranging inquiry sought. The first related to the wide power of the Coroner to make recommendations. Section 82 of the 2009 Act, relevantly is as follows- " (1) A coroner (whether or not there is a jury) or a jury may make such recommendations as the coroner or jury considers necessary or desirable to make in relation to any matter connected with the death, suspected death, fire or explosion with which an inquest or inquiry is concerned. (2) Without limiting subsection (1), the following are matters that can be the subject of a recommendation: (a) public health and safety, (b) that a matter be investigated or reviewed by a specified person or body. " 63 The power of a coroner to make recommendations about matters of public health and safety seems apt to enable the coroner to consider matters outside the scope of what may b e considered necessary to determine the manner and cause of death. However, the power cannot arise until there is an inquest and there cannot be an inquest unless the evidence justifies it. In my opinion it does not. 64 The second matter is this. Earlier in this judgment I mentioned briefly that there are circumstances in which the holding of an inquest is mandatory and I identified the only one relevant to this matter. 65 Until they were removed in 1993, the 1980 Act contained provisions that would have had a bearing upon matters like this one. At that time s 14B listed the cases in which an inquest was required to be held as including- "(1)(b) a case in which the death….is examinable only by the State Coroner or a Deputy State Coroner under s 13A or 13AB." 66 By s 13AB only the State Coroner or a Deputy State Coroner had jurisdiction to hold an inquest concerning the death of a person if it appeared that the person was or there was reason to suspect that the person was- "(b) a child in respect of whom a report was made under Part 2 of Chapter 3 of the Children and Young Persons (Care and Protection) Act 1998 within the period of 3 years immediately proceeding the child's death." 67 Mr Hoy submitted, and it may be accepted, that M was a person coming within the description of children contemplated by ss 13AB and 14B. Until the provisions were removed in 1993, therefore, it would have been obligatory to have an inquest. As I understood the argument, the Court ought for that reason to construe more favourably to the plaintiff the range of matters examinable in deciding the manner of death. 68 I do not accept that submission. Broad though its meaning may be, the manner of death, as I propose that it should be understood, does not seem to me to be likely to vary according to whether a deceased person is or is not a child about whom a report has been made to the Department. No doubt the Parliament has its reasons for insisting on inquests where persons answering particular descriptions have died, but it is not necessary to deal here with the classes of persons so affected or why the Parliament so insists. It is sufficient to say that there is no statutory insistence in the present case and that the question whether there should be an inquest is to be decided by the Court on the evidence. 69 In my opinion the plaintiff has not made out a case for an inquest. The Summons is dismissed. 70 The advocate for the Attorney General informed the Court that he does not ask for an order for costs. Accordingly, I make no order as to costs. **********

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