Keown v Khan [1998] VSC 297; [1998] VICSC 83

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SC/SD VICTORIAN GOVERNMENT REPORTING SERVICE 9603 2404

ORMISTON, J.A.: I have had the privilege of reading in draft form the scholarly reasons of Callaway, J.A. for allowing this appeal. I agree in both his careful reasoning and his conclusions. I wish to add, however, lest there be any misunderstanding, that I should not be taken, either directly or indirectly, to be agreeing in the conclusions of the learned trial judge, whether on matters of fact or law. Those conclusions were based on misconceptions as to the nature of an application under s.59 to review the findings of an inquest and as to the findings which coroners are obliged or entitled to make pursuant to s.19 and the manner in which they ought to be expressed. Questions of law may not be raised under s.59 (except to the extent that they are explicitly permitted under any of the paragraphs of sub-s.(3)) and findings of coroners ought to eschew use of language which connotes legal conclusions as opposed to factual findings. Whether the first respondent as plaintiff wishes in those circumstances to pursue the application, if and when it be remitted, is a matter he will have to determine in the light of the Court's reasons.

I certify that this page is a true copy of the reasons for judgment of Ormiston, J.A. of the Court of Appeal (Ormiston, Callaway and Batt, JJ.A.) of the Supreme Court of Victoria delivered on 1 May 1998.

CALLAWAY, J.A.: On 23rd September 1994 the appellant, Constable Gerard Keown, shot and killed Colleen Richman. The Deputy State Coroner, who is the second respondent, investigated her death and held an inquest. In paragraph 51 of the record of investigation purportedly kept pursuant to s.20 of the Coroners Act 1985[1]

"51.a) Colleen Richman contributed to her cause of death by consciously ignoring the lawful directions of Constable Keown and intentionally threatening him with the hatchet she had in her possession. The evidence does not satisfy me that her actions were undertaken with the intention of committing suicide.

b) For the reasons previously stated, neither Constable Gerard Keown nor Constable Sally Robertson contributed to the cause of death."

Paragraph 51 appeared under the heading "Contribution". Other sub-paragraphs exonerated the Victoria Police Force, the Department of Health and Community Services and various health professionals. Constable Sally Robertson was the appellant's partner who attended with him at the scene of the incident which culminated in Ms Richman's death.

The first respondent is Ms Richman's brother. On 13th September 1996 he filed an originating motion seeking an order declaring some or all of the findings made by the second respondent in the inquest into his sister's death to be void. Fourteen findings were specified in the originating motion as grounds upon which the plaintiff relied, each of them being said to be against the evidence and the weight of the evidence. Finding no. 12 was that Ms Richman contributed to her own death. Most of the other findings concerned the appellant's conduct, but there was nothing directly corresponding with paragraph 51(b) of the record of investigation. At the hearing of the originating motion in June 1997 the learned trial judge gave leave to add the following ground:

"The finding that Colleen Richman was the sole contributing cause of her death was against the evidence and the weight of the evidence."

Argument at the hearing was directed solely to that ground on the footing that the corollary of the impugned finding to which it referred was that the appellant "did not contribute to [Ms Richman's death] in that he was justified in shooting her in self-defence".[2]

The hearing occupied three days and the decision was reserved.

On 11th September 1997 reasons for judgment were published. His Honour concluded that the evidence and process of reasoning from which the relevant inferences were drawn to support the finding "that Ms Richman contributed solely to her death" were not open to the second respondent. It was held that that finding should be declared void as being against the evidence and the weight of the evidence and that the appropriate course was to direct, pursuant to s.59(1)(b) of the Coroners Act, that the inquest be re-opened and the finding be re-examined by the State Coroner or at his direction by another coroner.[3]

The authenticated order was not as clear as the reasons for judgment, but it should be understood in the same sense. It is against that order that the present appeal is brought by leave granted on 26th September 1997.

Mr. Woinarski, Q.C., who appeared with Mr. Hargreaves for the appellant, took the threshold objections, first, that the second respondent did not find that Ms Richman was the sole contributing cause of her death and, secondly, if he did, that that was not a finding within the meaning of s.59 of the Coroners Act. That section provides:

"59. (1) Any person may apply to the Supreme Court for an order that some or all of the findings of an inquest are void.

(2) The Supreme Court may declare that some or all of the findings of the inquest are void and may order the State Coroner -

(a) to hold a new inquest, or direct any coroner, other than the coroner who held the first inquest, to hold a new inquest; or

(b) to re-open (or direct another coroner to re-open) the inquest and to re-examine any finding.

(3) The Supreme Court may only make an order if it is satisfied that -

(a) it is necessary or desirable because of fraud, consideration of evidence, failure to consider evidence, irregularity of proceedings or insufficiency of inquiry; or

(b) there is a mistake in the record of the findings; or

(c) it is desirable because of new facts or evidence; or

(d) the findings are against the evidence and the weight of the evidence."

It is convenient to put the threshold objections to one side for the moment and to concentrate attention on the point of substance, which is whether the second respondent's conclusion in paragraph 51(b) that the appellant did not contribute to the cause of death or his conclusion elsewhere in the record of investigation[4]

that the appellant acted in self-defence was capable of challenge under s.59.

A coroner has jurisdiction to investigate a death if it appears to the coroner that the death is or may be a reportable death.[5]

The investigation may be undertaken with or without an inquest. We were informed by Mr. Walters, who appeared for the second respondent,[6]

that in 1996-1997 there were 2,489 investigations of death of which only 174 involved an inquest. Section 59 applies only to the findings of an inquest . Section 19 applies to any investigation of death. Sub-sections (1), (2) and (3) of that section provide:

"19.(1) A coroner investigating a death must find if possible -

(d) the particulars needed to register the death under the Births, Deaths and Marriages Registration Act 1996;[7]

(e) the identity of any person who contributed to the cause of death.

(2) A coroner may comment on any matter connected with the death including public health or safety or the administration of justice.

(3) A coroner must not include in a finding or comment any statement that a person is or may be guilty of an offence."

In practice a coroner in this State no longer holds an inquest with a jury, but it is legally possible to do so.[8]

In such a case the coroner is required to put to the jury questions about the matters which a coroner must find under s.19(1).[9]

The jury are required to answer those questions so far as that is reasonably possible[10]

and their answers "have the same force and effect as if they had been found by a coroner".[11]

Where a coroner holds an inquest with a jury the coroner does not make any findings under s.19(1) but may still make comments under s.19(2).[12]

The jury may also comment on any matter connected with the death, including public health or safety or the administration of justice.[13]

Section 55(6) corresponds with s.19(3). It provides that a jury must not include in an answer or a comment any statement that a person is or may be guilty of an offence.

The present Coroners Act was enacted following a general review of the Coroners Act 1958 conducted by the Honourable Sir John Norris, Q.C. ("the Norris Report"). The Report's principal recommendation was that a coroner should no longer have power to commit a person for trial or to make any finding of legal responsibility. I use the expression "legal responsibility" advisedly: it was intended that there should be no determination of criminal or civil liability and that even the references to negligence in s.414 of the Mines Act 1958 and s.50 of the Coal Mines Act 1958 should be deleted.[14]

Sir John's recommendation as to civil liability generally was not adopted, for ss.19(3), 36(3) and 55(6) prohibit only a statement that a person is or may be guilty of an offence;[15]

but the Mines Act and the Coal Mines Act were amended to delete the references to negligence,[16]

so that the substance of his recommendations was adopted, namely that an investigation, with or without an inquest, should be a purely factual inquiry. That may explain why error of law, as such, is not mentioned in s.59(3).[17]

What then is meant by "the identity of any person who contributed to the cause of death" in s.19(1)(e)? Section 9(2)(a) and (b) of the Coroners Act 1958 required the coroner to give "his decision or finding"[18]

or the jury their verdict (as the case might be) and to certify it by an inquisition in writing. The inquisition was to set forth, so far as such particulars had been proved, "who the deceased was" and "how when and where the deceased came by his death". The Norris Report recommended that coroners should continue to have the duty of determining who the deceased was and how, when and where he came by his death. In addition it was proposed that they should determine the particulars required by the Registration of Births Deaths and Marriages Act for the time being in force.[19]

Those recommendations are reflected in s.19(1)(a), (b), (c) and (d).[20]

No recommendation was made corresponding with paragraph (e) and there is no indication in any of the extrinsic material to which we were referred as to why that paragraph was included. Section 28(1)(f) of the Coroners Act 1995 (Tas.) is identical with paragraph (e)[21]

and s.56(1)(d) of the Coroners Act 1956 (A.C.T.) is similar. Section 25(1) of the Coroners Act 1996 (W.A.), which is the same as s.19(1) of the Victorian Act in other respects, omits paragraph (e).[22]

The form of an inquisition at common law appears from the result of a magisterial inquiry[23]

set out in the judgment of Fullagar, J. in R. v. Registrar-General, Ex parte Lange[24]

"A magisterial inquiry on behalf of our Sovereign Lord the King taken at Yarra Doon in the Central Bailiwick of the State of Victoria this ninth day of August in the year of our Lord One thousand nine hundred and two before the undersigned John Keogh, Esquire, one of His Majesty's Justices of the Peace in and for the said Bailiwick, upon view of the body of Frederick Louis Christian Lange then and there lying dead. Having duly inquired when, where, how and by what means the said Frederick Louis Christian Lange came by his death, I say that the said Frederick Louis Christian Lange died at Yarra Doon in the said Bailiwick on the seventh day of August 1902 from gun shot wound in the head inflicted by the said Frederick Louis Christian Lange. As witness my hand this ninth day of August 1902."

Section 4 of the present Act provides that the rules of the common law that formerly conferred powers and imposed duties on coroners or coroners' courts no longer have effect,[25]

but the form of inquisition shows the antiquity of the topics of inquiry now found in s.19(1)(a), (b) and (c) as well as the brevity with which a coroner or a jury might deal with them.[26]

It also shows, as is in any event plain from the Western Australian provision, that paragraph (e) is unnecessary in order to make a finding as to the person or persons who caused the death: cf. the words "from gun shot wound in the head inflicted by the said Frederick Louis Christian Lange".

In the case of an inquest into a death conducted by a coroner without a jury, the "findings" referred to in s.59 are the same as the findings referred to in s.19(1). In the case of an inquest into a fire conducted by a coroner without a jury, they are the same as the findings referred to in s.36(1). Where an inquest, whether into a death or a fire, is conducted with a jury, the jury's answers have the same force and effect as if they had been found by a coroner and accordingly the "findings" referred to in s.59 are the same as the jury's answers.[27]

The view that the findings referred to in ss.19 and 59 are the same accords with the natural language of the statute and with authority.[28]

It implies that those findings are ultimate findings, that is to say decisions as to the identity of the deceased, how death occurred, the cause of death, the particulars needed to register the death and the identity of any person who contributed to the cause of death. That is why it is appropriate to treat them as having "force and effect"[29]

and as entities that are capable of being declared "void".[30]

A coroner may make many findings in the sense that he or she takes a view of the evidence or particular aspects of it, but they are not the "findings" referred to in ss.19(1) and 59. The latter are restricted to ultimate findings as to the identity of the deceased, how death occurred and so on.

The point of substance was earlier identified as whether the second respondent's conclusion that the appellant did not contribute to the cause of death or that he acted in self-defence was capable of challenge under s.59. In whichever of those two ways the conclusion is expressed, it is not a finding as to "the identity of any person who contributed to the cause of death". On the contrary, the statement in paragraph 51(b) of the record of investigation is a statement as to the identity of two persons who, in the second respondent's opinion, did not contribute to the cause of death. His conclusion about self-defence elsewhere in the record of investigation is in no better case so far as s.19(1)(e) is concerned. The matter may be tested by considering the position if the coroner had held the inquest with a jury and asked them to identify any person who contributed to the cause of death. An answer that the appellant did not contribute to the cause of death, or that he acted in self-defence, would have been non-responsive.

The same analysis does not apply to s.19(1)(b), at all events if the relevant conclusion is expressed not in terms of contribution but in terms of self-defence. A finding that the appellant killed Ms Richman in self-defence is a finding as to how her death occurred. I say "a finding", because it will often be necessary for a coroner to make more than one finding in order to discharge his or her obligations under paragraph (b).[31]

In the present case, for example, the second respondent found that Ms Richman consciously ignored the appellant's lawful directions[32]

and intentionally threatened him with a hatchet. That, too, was a finding as to how death occurred. That finding or the finding that the appellant acted in self-defence or both findings could, in my opinion, be challenged under s.59.[33]

It will be noticed that I have consistently referred to "self-defence" rather than "lawful self-defence" or "justified" or "excusable" homicide.[34]

A coroner is not concerned with questions of law of that kind. Instead the coroner is to find the facts from which others may, if necessary, draw legal conclusions.[35]

"153. It is necessary to emphasise that if the coroner is no longer required to determine whether the cause of death was unlawful, and if so, who was guilty of the crime, the original purpose of the verdict, to indicate legal responsibility for the death, substantially disappears. If the coroner or jury is not to include any statement of legal responsibility or to express any conclusion of law on the matters he or the jury is required to determine as recommended in paragraph 125 above, this consequence is reinforced. The result is, as stated by the Brodrick Committee (para. 16.40):- 'In future the function of an inquest should be simply to seek out and record as many of the facts concerning the death as public interest requires, without deducing from those facts any determination of blame.' The findings of the coroner or jury should in terms be findings of fact only. To quote the Brodrick Committee again:- 'In many cases, perhaps the majority, the facts themselves will demonstrate quite clearly whether anyone bears any responsibility for the death; there is a difference between a form of proceedings which affords to others the opportunity to judge an issue and one which appears to judge the issue itself.' (ibid)."

The findings by a coroner as to how death occurred[36]

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.[37]

The reference to contribution to the cause of death reflects the commonplace truth that it is sufficient if a person's acts or omissions are a cause of a relevant event.[38]

Civil juries are, for example, regularly asked whether the negligence of the defendant was a cause of the plaintiff's injuries. The test of contribution is solely whether a person's conduct caused the death. It may have been the only cause or one of several causes. There are also cases where no one satisfies the description in s.19(1)(e), as in the case of a death solely from natural causes. In determining whether an act or omission is a cause or merely one of the background circumstances, that is to say a non-causal condition, it will sometimes be necessary to consider whether the act departed from a norm or standard or the omission was in breach of a recognized duty,[39]

but that is the only sense in which paragraph (e) mandates an inquiry into culpability. Adopting the principal recommendation of the Norris Report, Parliament expressly prohibited any statement that a person is or may be guilty of an offence. The reasons for that prohibition apply, with even greater force, to a finding of moral responsibility or some other form of blame: the proceeding is inquisitorial; the conclusion would be more indeterminate than a conclusion about legal responsibility; and there would be no prospect of a trial at which the person blamed might ultimately be vindicated by an acquittal.[40]

It follows that a person who kills necessarily contributes to the cause of death and that that is none the less true where the killing is in lawful self-defence.[41]

A coroner is not concerned with the latter question but will ordinarily set out the relevant facts in the course of finding how death occurred and the cause of death. The facts will then speak for themselves, leaving readers of the record of investigation to make up their own minds about lawful self-defence or any similar issue. (That was the point made by Sir John Norris in paragraph 153 of his report.) It is of the first importance that, where a person's reputation is at stake, the relevant facts are clearly brought out. It might well be thought that, as paragraph (e) adds nothing to paragraphs (b) and (c) and a finding of contribution is likely to cause injustice if its significance is misunderstood, s.19(1) (e) should be repealed.[42]

Before turning to the disposition of the present appeal, I mention some other matters that were the subject of submissions:

1. The admittedly odd expression "consideration of evidence" in s.59(3)(a) has baffled distinguished judges.[43]

It does not mean that the Supreme Court may make an order if it is satisfied that it is necessary or desirable because of its consideration of the evidence. That topic is dealt with in s.59(3)(d) and the words "consideration of evidence" cannot refer to the Supreme Court, because they are immediately followed by the words "failure to consider evidence". It could not be suggested that the court may make an order if it is satisfied that it is necessary or desirable because of its own failure to consider evidence. What is meant is that an order may be made where the coroner considered evidence that should not have been considered or failed to consider evidence that should have been considered. The words "failure to consider evidence" replace "rejection of evidence" in the old s.10[44]

and it was thought appropriate to include their opposite.[45]

2. Section 59(3)(d) was included, on Sir John Norris's recommendation, because there was at least one case on the files of the Attorney-General's office in which a finding appeared to be "completely contrary to the weight of the evidence, though it could not be said that there was no evidence on which the coroner could base his finding".[46]

The ground that the findings are against the evidence and the weight of the evidence has also been the subject of judicial criticism but, in my respectful opinion, the criticism proceeds on a misunderstanding. All that was intended was that perverse findings might be set aside, i.e. findings for which there was no evidence or that no reasonable coroner could make. The scope of review is therefore the same as that with which, in Anderson v. Blashki,[47]

Gobbo, J. contrasted it by reference to Young v. Paddle Bros. Pty. Ltd.[48]

3. There is no longer an inquisition like the result of the magisterial inquiry set out in Ex parte Lange. Instead s.20 requires a coroner or the coroner's clerk to keep a record of each investigation into a death in the prescribed form. That requirement applies whether or not the investigation includes an inquest. The prescribed form (Form 1 in the Coroners Regulations 1986, now Form 1 in the Coroners Regulations 1996) encourages discursive records that make it difficult to separate the coroner's findings about the matters mentioned in s.19(1), especially paragraph (b), from his or her discussion of the evidence. It might be better to provide for a concise statement of the findings, i.e. the ultimate conclusions, made under each paragraph of s.19(1), followed by such discussion of the evidence as the coroner considers necessary in order to explain those findings and then any comments under s.19(2).[49]

Such discussion is the equivalent of the reasons that a court gives for its decision, but just as it is only the decision of a court and not its reasons that may be the subject of appeal, so it is the findings and not the discussion of the evidence that may be declared void under s.59. Section 19(3) does not expressly prohibit a statement that a person is or may be guilty of an offence if that statement appears neither in the findings required by s.19(1) nor in any comments under s.19(2), but any such statement in the course of discussing the evidence is impliedly prohibited.

The sole ground argued below was predicated on the assumption that the second respondent's conclusion that the appellant did not contribute to the cause of death was a finding under s.19(1)(e). That assumption was false and the true construction of paragraph (e) is that he did so contribute. The real dispute lies elsewhere. The appeal should therefore be allowed and the orders made below, except as to costs and liberty to apply, set aside. Subject to any further submissions that counsel may wish to make, I am disposed to think that the originating motion should be remitted to the Trial Division.[50]

It would then be for the judge to determine any application for further amendment that may be made and whether the record of investigation discloses a finding within the meaning of s.19(1) that the first respondent still desires to challenge.

I certify that this and the preceding 13 pages are a true copy of the reasons for judgment of Callaway, J.A. of the Court of Appeal (Ormiston, Callaway and Batt, JJ.A.) of the Supreme Court of Victoria delivered on 1st May 1998.

BATT, J.A.: I have had the considerable benefit of reading in draft the reasons for judgment of Callaway, J.A. I agree in them and in the orders proposed. The appellant should be afforded the opportunity of making submissions as to the course which this Court should now take.

It has not been necessary, at least so far, for this Court to consider the correctness of the primary judge's analysis, whether factual or legal, of the matters in dispute between the appellant and the first respondent. A particular matter, raised by counsel for both respondents, which it has not been necessary to consider is the use to which untested evidence (in the wide sense of the latter word) may be put. I am not to be taken as necessarily agreeing with his Honour's analysis. As his order is to be set aside, in the event that the originating motion should come to be re-heard in the Trial Division the judge will be completely unaffected by his Honour's analysis. Again, since the order is to be set aside, it has not been necessary to consider another matter raised by counsel for the second respondent, namely, the terms of the order under s.59(2)(b).

Finally, I desire to make some comments with regard to the record of investigation. There is no doubt that coroners may discuss the evidence and explain their findings. But I have the impression that at any rate in more contentious inquests coroners' reports have of late tended to be prolix. At least as a general rule, that is unnecessary. If the suggestion of Callaway, J.A., in which I join, for revision of the prescribed form of record is adopted, it should not, of course, be thought that the inclusion by the coroner of a statement by him or her in the "findings" section of the form or, conversely, in the "discussion" section necessarily forecloses the question whether the statement is or is not a finding within s.19(1)(b) or (c), though obviously it will be of significance on that question.

I certify that the preceding page is a true copy of the reasons for judgment of Batt, J.A. of the Court of Appeal (Ormiston, Callaway and Batt, JJ.A.) of the Supreme Court of Victoria delivered on 1 May 1998.

The record of investigation complies with paragraphs 1, 2 and 3 of the prescribed form and in substance with paragraphs 4 and 5; but, as mentioned later in this judgment, the prescribed form encourages a discursive record in which it is difficult to separate the findings from the coroner's discussion of the evidence.

[5] Coroners Act 1985, ss. 3 and 15(1).

[6] The appeal was originally listed for hearing on 3rd December 1997. The Court invited submissions from the second respondent concerning the meaning of s.19 of the Coroners Act 1985 and coronial procedure: cf. R. v. Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 C.L.R. 13 at p.36.

[7] At the time of the inquest into Ms Richman's death s.19(1)(d) referred to the Registration of Births Deaths and Marriages Act 1959.

[14] Norris Report, paras 112-125, 148-154 and 174-175 and recommendations 29, 30, 36, 38, 43 and 44.

[15] Sections 19(3) , 36(3) and 55(6) contemplate a statement that a particular person is or may be guilty of an offence. Compare r.42(a) of the Coroners Rules 1984 (Eng.) set out in R. v. H.M. Coroner for North Humberside and Scunthorpe, Ex parte Jamieson [1995] Q.B.1 at p.15 and the discussion thereof at p.24.

[16] Regulation 5 in the Coroners Regulations 1986 made a death a reportable death when it occurred "as the result of a negligent act or omission of any person". There is no corresponding provision in the Coroners Regulations 1996.

[17] Section 10 of the Coroners Act 1958 did not mention error of law either, but an inquisition might be quashed where the Court was satisfied that for any reason it was necessary or desirable in the interests of justice that another inquest should be held. Certiorari was also available: see R. v. Registrar-General, Ex parte Lange, fn. 24 below, at pp.50-52.

[18] Compare s.11(3) of the Coroners Act 1920 (W.A.), set out in the judgment of Toohey, J. in Annetts v. McCann [1990] HCA 57; (1990) 170 C.L.R. 596 at p.614, p.620 of that judgment and the reference thereto by Gobbo, J. in Anderson v. Blashki [1993] VicRp 60; [1993] 2 V.R. 89 at p.92.

[19] Norris Report, para. 65 and recommendation 10.

[20] I hesitate to say that they were adopted, because of the language of paras (b) and (c).

[21] The difference in lettering is explained by an express requirement, in s.28(1)(d), that the coroner find "when and where death occurred": cf. fn. 20 above.

[22] At the time Mr. Freckelton wrote the article referred to in fn. 36 below, the Tasmanian and Western Australian provisions had not come into force. They did so on 31st December 1996 and 7th April 1997 respectively.

[24] [1950] VicLawRp 12; [1950] V.L.R. 45 at p.46.

[25] As this judgment and previous judgments illustrate, the consequences of completely replacing the common law by legislation drafted in non-technical language are only gradually becoming apparent. See also Harmsworth v. State Coroner [1989] VicRp 87; [1989] V.R. 989.

[26] These findings were the subject of criticism in one respect: see pp.53-54 of the report. Historically, coroners gave their verdicts in forms that included unlawful homicide, lawful homicide, suicide and misadventure. See, for example, Selby, The Aftermath of Death (1992), pp.12-14. We were informed that, consistently with the scheme of the Coroners Act 1985, it is no longer the practice to do so.

[27] I shall say no more about inquests into fires and, except where it is necessary to refer to s.55, the remainder of this judgment will be concerned only with inquests into death conducted by a coroner without a jury.

[28] Anderson v. Blashki at p.92; Chief Commissioner of Police v. Hallenstein [1996] VicRp 51; [1996] 2 V.R. 1 at p.3.

[29] It will be recalled that s.55(3) provides that a jury's answers "have the same force and effect as if they had been found by a coroner".

[31] A finding under s.19(1)(e) is solely a finding as to identity. The points numbered 1 to 5 in Secretary to the Department of Health and Community Services v. Gurvich [1995] VicRp 44; [1995] 2 V.R. 69 at pp.70-71 were, at most, findings under s.19(1)(b) or (c). Only the opening words constituted findings under s.19(1)(e).

[32] The expression "lawful directions" was merely descriptive of an uncontroversial fact.

[33] Mr. Hore-Lacy, Q.C., who appeared with Miss Dixon for the first respondent, cautioned against any undue limitation of the scope of review under s.59. See also Norris Report, paras. 160 and 161.

[34] A verdict of "unlawful killing" would often inculpate a particular person by necessary implication, as would a discussion of evidence leading to a decision not to find that a person acted in lawful self-defence. As s.19(3) is part of the Act, no questions arise about inconsistency between statute and rules: cf. Jervis on the Office and Duties of Coroners (11th ed. 1993), paras 13-30 and 13-40.

[35] If the coroner believes (as opposed to finds) that an indictable offence has been committed, he or she must report to the Director of Public Prosecutions: see s.21(3) and also s.55(7).

[36] The word "how" means, or at least includes, "by what means": see the findings in Ex parte Lange set out above and compare Ex parte Jamieson at p.24. (Quaere whether the non-technical language of s.19(1)(b) is wider than the corresponding English provisions.) See also Freckelton, "Causation in Coronial Law" (1997) 4 J.L.M. 289 at pp.290-291.

[37] In s.19(3) "a person" does not include the deceased: see Militano v. State Coroner (Hayne, J., unreported, 18th December 1992). The better view is that "any person" in s.19(1)(e) may include the deceased, because para.(e) looks to the past rather than the future and is solely concerned with causation. If it were otherwise, a person who committed suicide would not have contributed to the cause of death.

[38] I do not accept Mr. Woinarski's submission that the person or persons primarily responsible should be identified under s.19(1)(b) and ancillary contributors to the cause of death under s.19(1)(e). It is a distinction that would sometimes be difficult to draw and it would mean that a murderer does not contribute to the cause of death, which would hardly accord with the Act's having been drafted in clear, comprehensible English: see the Attorney-General's second reading speeches in the Legislative Council (Hansard, 16th October 1985, p.372 and 23rd October 1985, pp.553-554). For similar reasons it would be wrong to adopt a literal reading and hold that two persons jointly responsible may contribute but one may not.

[39] Compare Secretary to the Department of Health and Community Services v. Gurvich at p.74.

[40] See and compare Chief Commissioner of Police v. Hallenstein at pp.15-20, where the implications of s.19(3) and the primacy of causation are also emphasized.

[41] If the person were tried for murder he would be acquitted, not because he did not cause the death but because he acted in lawful self-defence.

[42] There is no other Australian jurisdiction, apart from Tasmania and the Australian Capital Territory, that requires a separate finding of contribution. Ex parte Jamieson shows that in England contribution to the cause of death falls to be considered under the rubric "how ... the deceased came by his death".

[43] Anderson v. Blashki at p.92; Chief Commissioner of Police v. Hallenstein [1996] VicRp 51; [1996] 2 V.R. 1 at pp.12-13 and 21. In both those cases the expression was taken to mean the way in which the evidence was considered by the coroner, but the court was not referred to the relevant parts of the Norris Report. See fn. 45 below.

[44] The grounds for quashing an inquisition in s.10(1)(b) of the Coroners Act 1958 were "fraud rejection of evidence irregularity of proceedings insufficiency of inquiry or [that] for any reason it is necessary or desirable in the interests of justice that another inquest should be held". There may be more overlap between "failure to consider evidence" and "insufficiency of inquiry" than there was between "rejection of evidence" and "insufficiency of inquiry" in s.10.

[45] Norris Report, paras 138, 142, 143, 161 and recommendations 32 and 39. Sir John Norris had in mind the form of the evidence considered by a coroner, but "consideration of evidence" in s.59(3)(a) should not be so confined having regard to the broad terms of s.44.

[47] [1993] 2 V.R. at p.92. See also p.97. The wide view of s.59(3)(d) was accepted, without further examination, in Secretary to the Department of Health and Community Services v. Gurvich at p.73.

[48] [1956] VicLawRp 6; [1956] V.L.R. 38 at p.41. A coroner is to that extent equated with a jury, which is consistent both with the history of coronial inquiries and with s.55.

[49] Compare Chief Commissioner of Police v. Hallenstein at pp. 7, 10 and 21.

[50] Compare Boyce v. Munro (Court of Appeal, unreported, 2nd December 1997) at pp.12-13 and Bank of South Australia Ltd. v. Ferguson [1998] H.C.A. 12 at p.13.