Khan v Keown & Anor [2001] VSCA 137

"Detached reflection cannot be demanded in the presence of an uplifted knife."[1]

I doubt that either judge intended the passage as a statement of legal principle but I would, without reservation, believe that it expresses timeless wisdom and plain common sense.

8. On 23 September 1994, at certain premises in Fitzroy Street St. Kilda, Constable Gerard Keown shot and killed Colleen Richman. An inquest into the death was conducted by the Deputy Coroner in October-November 1995. On 23 January 1996 the Deputy Coroner (to whom I shall refer for convenience simply as "the coroner") published the Record of Investigation, setting out the matter in great detail. That Record of Investigation contained two paragraphs which have gained great significance in the proceedings that have followed.

"The evidence satisfies me that the circumstances existing immediately before the deceased was fatally shot by Constable Keown, necessitated him shooting her in self defence. This conclusion is based on the distance separating them, the manner in which she was moving toward him, with the minimal time it would take to cover the distance and the fact that she was approaching him with the hatchet upraised. Her actions at this time must be viewed in the context of her immediate past behaviour, which was observed by many witnesses and generally described as irrational, threatening and dangerous. Constable Keown was in part alerted to this behaviour through what he had been told and from his own observations. At the time he shot the deceased, Constable Keown was entitled to assume that he and Constable Robertson were in immediate danger of attack and in these circumstances he was justified in firing at her, in self-defence."

"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. c) Despite the concession made by Assistant Commissioner Shuey regarding the force training schedules lack of emphasis in dealing with the mentally ill, there is no basis upon which a finding of contribution can be made against the Victoria Police Force."

17. Under the Coroners Act 1985, as it stood at the time, s.19 (so far as relevant) was as follows:

"(1) A coroner investigating a death must find if possible- (a) the identity of the deceased; and (b) how death occurred; and (c) the cause of death; and (d) the particulars needed to register the death under the Births, Deaths and Marriages Registration Act 1996; and (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."

Section 59(1) allowed "any person" to apply to the Supreme Court for an order "that some or all of the findings of an inquest are void" and s.59(2) empowered the Supreme Court to declare that some or all of the findings of the inquest were void accordingly. If the court so declared, it might then order the State Coroner to hold a new inquest or to re-open the inquest and re-examine any finding. These provisions were qualified, however, by what followed:-

"(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."

24. The present appellant, the brother of the deceased Richman, was dissatisfied with some of the principal conclusions expressed by the coroner in the Record of Investigation, and in particular the conclusion in paragraph 51(b) that neither of the two police constables "contributed to the cause of death". Accordingly by an originating motion filed on 13 September 1996, Mr. Khan sought an order declaring under s.59 that certain findings of the coroner were void.

27. The matter came on for hearing in June 1997 before Hampel, J. and, although the originating motion named as defendant only the coroner, Constable Keown intervened by leave of a master. The originating motion set out 14 grounds for the relief sought, each alleging that one finding or another of the coroner was "against the evidence and the weight of the evidence" (the expression used in s.59(3)(d)). Ground 12 attacked the finding that the deceased contributed to her own death, but most of the other findings concerned the conduct of Constable Keown. There was nothing corresponding directly with paragraph 51(b) of the Record of Investigation, but at the hearing Hampel, J. gave leave to add the following ground:-

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

As his Honour recorded in his reasons for judgment, argument at the hearing was directed solely to that ground on the footing that the corollary of the impugned finding which it purported to identify was that Constable Keown "did not contribute to [the deceased's death] in that he was justified in shooting her in self-defence".

32. Judgment was delivered on 11 September 1997. Hampel, J. held that "the finding that Colleen Richman was the sole contributing cause of her death was against the evidence and the weight of the evidence". This followed, as the matter had been argued, from his Honour's' conclusion, after examining for himself the evidence before the coroner, that that evidence did not establish that Constable Keown had been acting in self defence. The only account of what happened at the time the fatal shots were fired was to be found in the policeman's own statement and, in the judge's view, the weight to be given to that statement was affected by some of the objective facts, such as the "the position of Ms Richman's body and the positioning of the spent cartridges". The judge was satisfied that on the evidence as whole "there was ample opportunity for Constable Keown to retreat into the courtyard, to maintain the position and not to fire unless and until there was imminent danger either to himself or to others" and that he "had every opportunity to take cover and not to fire".

35. On that basis the judge held that the finding should be declared void, "that Ms Richman contributed solely to her death" (the finding which had been added to the originating motion by amendment), the inquest re-opened and the finding in paragraph 51(b) re-examined. Obviously that finding, that neither Constable Keown nor Constable Robertson contributed to the cause of death, was seen as amounting to much the same thing as a finding that Ms Richman was the only one who contributed to her death. And both, it may be added, were treated as dependent upon whether constable Keown was or was not acting in self defence.

39. The error in the foregoing was exposed when Constable Keown appealed by leave to this court from the orders made by Hampel, J. On 1 May 1998 Ormiston, Callaway and Batt, JJ.A. allowed the appeal and remitted the matter for further hearing and determination in the Trial Division. Callaway, J.A., with whom the other members of the Court agreed, was of opinion that s.59, in authorising a challenge to the findings of the coroner, referred only to those important findings which were both authorised and required by s.19(1) and the finding in paragraph 51(b) was not a finding within s.19(1)(e), as was apparently assumed below. A conclusion about who did not contribute to the cause of death was not a finding about who did. Moreover, on the undisputed findings of the coroner, Constable Keown was plainly a person "who contributed to the cause of death" within the meaning of s.19(1)(e); for, when that expression was properly understood, it was enough that he had fired the shots which had killed Ms Richman. The question of contribution under s.19(1)(e) simply did not raise any question of self defence.

42. However, that did not mean (Callaway, J.A. said) that the finding that Constable Keown had acted in self defence was not a finding about how the deceased died, and so a finding within s.19(1)(b); and such a finding, like the finding that Ms Richman "ignored [the constable's] lawful directions and intentionally threatened him", was a finding which might be challenged under s.59. But that was not how the matter had been approached below and so the matter was remitted for further consideration in the Trial Division. As was noted in conclusion it would then be up to the judge undertaking the further hearing to determine "any application for further amendment ... and whether the record of investigation discloses a finding within the meaning of s.19(1) that [Mr. Khan] still desires to challenge".

46. In accordance with the orders made by the Court of Appeal on 1 May 1998, the originating motion of Mr. Khan returned to the Trial Division and was further heard in July 1999. Judgment was delivered on 17 December 1999 and a declaration was made under s.59, but it was made only in respect of the coroner's findings in paragraph 51 of the record of investigation, and only in these terms : "in so far as such findings do not identify Gerard Keown as a person who contributed to the cause of death of the deceased [they] are void". Again the coroner was ordered to re-open the inquest into the death of Ms Richman and to re-examine the findings contained in paragraph 51 of the record of investigation. Thus far the judgment gave expression to the opinion of the Court of Appeal that contrary to the findings in paragraph 51 Constable Keown was a person "who contributed to the cause of death" within the meaning of s.19(1)(e); but that was not now in dispute, given the interpretation placed upon s.19(1)(e) by this Court.

49. What was still in dispute was the finding made by the coroner that Constable Keown had been acting in self defence when he shot Ms Richman; but in that respect a declaration under s.59 was on this occasion refused. When the matter returned for further hearing, no application had been made by Mr. Khan for further amendment; as recorded in the reasons for judgment delivered on 17 December 1999, Mr. Khan "persisted with his challenge on the same grounds as those before the Court of Appeal". The first of those 15 grounds was this:-

"The finding that the circumstances existing immediately before the deceased was fatally shot by Constable Keown necessitated him shooting her in self defence is against the evidence and against the weight of evidence."

What followed were largely particulars of this, the first and main ground of attack. But the judge declined to make a declaration in this regard, not because of an opinion that the coroner had been justified in making the impugned finding but because it was not open to challenge under s.59. It was not, it was held, one of those findings required by s.19(1) and so it was not a finding to which s.59 had any application.

55. It is against that decision that Mr. Khan now appeals, contending that the view taken below was error. As I followed it, the appellant's argument, as put to us by Mr. Hore-Lacy, came down to the following steps: (1) the appellant was entitled to have considered by the judge under s.59 a finding of the coroner of how death occurred; (2) the coroner found that the deceased was shot by the constable acting in self-defence; (3) a finding in such terms was a finding of how death occurred; and (4) the judge wrongly failed to consider whether that finding was "against the evidence or the weight of the evidence" as described in s.59.

58. In my respectful opinion, all four steps are justified by the judgment delivered by this Court on 1 May 1998, on the first appeal. Thus, a finding how death occurred is expressly required by s.19(1)(b) and so s.59 extends to such a finding. Secondly, that the deceased was shot by Constable Keown is not in dispute and the coroner was plainly entitled to make that finding. It was submitted for Constable Keown that it was inappropriate for the coroner to have added the words "acting in self-defence" as that went beyond the ambit of what was authorised and required by s.19(1). Yet it is not in doubt that the coroner came to the conclusion that the deceased was shot by the constable while acting in self-defence and, as already mentioned, Callaway, J.A. was plainly of opinion that such a finding was within s.19(1)(b) and accordingly could be challenged under s.59.

61. If, as I think, the first three steps in the argument are correct, it follows that the fourth step, too, must be correct. Given the first three, it was error below for the judge not to consider whether the finding, that in shooting at Ms Richman the constable was acting in self defence, was "against the evidence or the weight of the evidence". That has been interpreted as meaning whether the finding in question was open on the evidence. Be that as it may, it is plain that the judge did not consider whether the finding about self-defence could be justified on the evidence and it is that about which the appellant now complains, and in my opinion complains with justification. There may be a question whether the coroner trespassed beyond the area permitted him by s.19 when, in paragraph 28 of the record of investigation, he found that circumstances "necessitated" the constable's shooting in self defence and that he was "justified" in firing at her; for, as Callaway, J.A. pointed out, the legal issue is for others to resolve, not the coroner. But in this respect I agree with Batt, J.A. that the coroner was in truth doing no more than finding the facts and it is his finding in that regard which may be reviewed by the court under s.59. I simply add that if, contrary to my view, the coroner's finding did incorporate impermissibly conclusions of law, then that purported finding might none the less still be reviewable under s.59, being the finding that was actually made as to how death occurred, flawed though it was.

65. It follows that the appeal must be allowed. Unfortunately that means that this matter must yet again be referred back to the Trial Division. I say unfortunately because the evidence was heard by the coroner in 1995 and it is now 2001. But the appellant is given the right by s.59 to have reviewed in this Court certain findings of the coroner and he is simply seeking to enforce that right. As I have said, the originating motion spelt out, as ground 1, the attack on the finding about self-defence and it is that finding which must now be reviewed under s.59 by a judge in the Trial Division. If, as I think, the other grounds taken are but particulars of the first, they will be exposed to review to the extent which is appropriate. (Of those further grounds, grounds 5, 9, 10, 11 and 12 were not pursued before us.) I stress however that, whether it is the ultimate conclusion under consideration or any of the other findings which lead towards that conclusion, the test is whether the fact in issue was open to be so found on the evidence before the coroner. Review under s.59 is limited: it is not an appeal by way of re-hearing.

68. Finally, if leave to appeal is needed in this matter, it has not yet been sought, but I would grant it nunc pro tunc in case it is necessary. I would allow the appeal,

set aside paragraphs 2 and 3 of the orders made on 17 December 1999 and direct that the matter be remitted to a judge of the Trial Division for hearing and determination according to law. The orders made on 17 December 1999 were that the State coroner re-open the inquest into the death of the deceased and re-examine the findings made in paragraph 51 of the record of investigation. As I see it, the question is whether those orders were too limited. It will be up to the judge in the Trial Division, when the matter is remitted, to determine whether the orders of 17 December 1999 should be expanded to include findings beyond those in paragraph 51. The appellant should have the costs of the appeal against the respondent Keown only, and that respondent a certificate under the Appeal Costs Act. While it was helpful on this occasion to have submissions about the statute on behalf of the second respondent, the coroner, there must be a question how far that participation should be carried hereafter.

73. The background and history of this matter until the time it was previously before the Court of Appeal are set out in the judgment of Callaway, J.A. in Keown v. Khan[2], as in the text of ss.19(1)[3], (2) and (3) and 59 of the Coroners Act 1985 ("the Act"). There is no need to repeat that material, though it will be necessary for this appeal to refer to certain passages in documents then in existence. In reading his Honour's reasons it is to be remembered that the then appellant is now the first respondent and the then first respondent is now the appellant. I shall refer to the parties by their present capacities.

76. The Court of Appeal set aside the orders of the original primary judge and remitted the appellant's originating motion for hearing by a judge of the Trial Division. On 12 February 1999 the High Court refused the appellant special leave to

appeal on the ground that there was insufficient reason to doubt the correctness of the decision of the Court of Appeal to warrant the grant of special leave.

80. The originating motion was thereafter heard by another judge of the Trial Division, who delivered judgment on 17 December 1999. By the authenticated order the court declared that:

"The findings of the Deputy Coroner pursuant to Section 19(1) of the Coroners Act 1985 contained in paragraph 51 of the Record of Investigation into the death of Colleen Richman, deceased, dated 23 January 1996 in so far as such findings do not identify Gerard Keown as a person who contributed to the cause of death of the deceased are void",

and ordered that the State Coroner re-open the inquest into the death of Ms Richman and that the State Coroner re-examine the findings made pursuant to s.19(1) contained in paragraph 51 above-mentioned.

85. The appellant has appealed against the decision of the judge on a number of grounds including that the judge erred in construing s.19(1)(b) of the Act; in characterising the findings of the Deputy Coroner made pursuant to s.19(1)(b) as "expressions of a view of the evidence or particular aspects of the evidence" and therefore as not susceptible to challenge under s.59 of the Act; and by determining that the Deputy Coroner properly found how the death of the deceased occurred, namely by the shooting of the deceased by the first respondent.

88. In paragraph 28 of the record of investigation, under the heading "The discharge of the firearm and shooting of Colleen Richman", the Deputy Coroner stated:

"The evidence satisfies me that the circumstances existing immediately before the deceased was fatally shot by Constable Keown, necessitated him shooting her in self defence. This conclusion is based on the distance separating them, the manner in which she was moving toward him, with the minimal time it would take to cover the distance and the fact that she was approaching him with the hatchet upraised. Her actions at this time must be viewed in the context of her immediate past behaviour.... At the time he shot the deceased, Constable Keown was entitled to assume that he and Constable Robertson were in immediate danger of attack and in these circumstances he was justified in firing at her, in self defence."

92. Of the 15 grounds in the originating motion, including that added by leave of the original primary judge, counsel for the appellant before us did not press grounds 5, 10, 11, 12, 14 or 15. The grounds remaining read:

1. The finding that the circumstances existing immediately before the deceased was fatally shot by Constable Keown necessitated him shooting her in self defence is against the evidence and against the weight of evidence. 2. The finding that at the time he shot the deceased Constable Keown was entitled to assume that he and Constable Robertson were in immediate danger of attack and in these circumstances he was justified in firing at her in self-defence is against the evidence and against the weight of the evidence. 3. The finding that Constable Keown had minimal time to defend himself from attack (paragraph 32 of the findings) is against the evidence and against the weight of the evidence. 4. The finding that Constable Keown believed he could not retreat quickly backwards in an attempt to avoid attack is against the evidence and against the weight of the evidence. ... 6. The finding that no realistic opportunity presented itself for Constable Keown to attempt to disarm the deceased is against the evidence and the weight of the evidence. 7. The finding that the only plausible inference to be drawn from Constable Keown's act of firing at the deceased was that her forward movement toward him was sufficiently more threatening than it had been on previous occasions when he hadn't fired, or when discharging the warning shot, as to create in his mind a belief that he would be killed unless he defended himself is against the evidence and against the weight of the evidence. 8. The finding that Constable Keown could not prevent the three shots in the back after the deceased had rotated with the first entry impact is against the evidence and against the weight of the evidence. 9. The finding that at the time the deceased was shot she was posing an immediate threat to Constable Keown which reasonably caused him to believe it was necessary to protect his life and in acting to do so he used no more force than was reasonably necessary is against the evidence and against the weight of the evidence. ... 13. The finding as to the order and effect of each of the bullets, specifically that the second of the series of five shots entered the area of the deceased's left breast and that the third and fourth shots in the series entered the posterior aspect of the right shoulder and right upper back respectively and that the final shot was to the left mid back, is against the evidence and against the weight of the evidence.

It became apparent during the course of the address for the appellant that what the appellant really wanted declared void was the finding specified in ground 1 and that the other grounds quoted above were particulars of that ground. This is "the real dispute" to which Callaway, J.A. referred[4]. Counsel did, however, say that, if he could not have the first finding declared void, he wanted the other, detailed, findings declared void.

97. I find it necessary to consider ground 1 only. So far as material to that ground, the judgment below proceeded as follows. The judge summarised "the formal findings" of the Deputy State Coroner, taking them all from paragraph 51 of the record of investigation, the presently relevant part of which is quoted in the judgment of Callaway, J.A.[5]. The judge then quoted extensively from his Honour's judgment, commencing with the following passage in it[6]:

"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."

What was held in the several passages quoted was summarised and the judge next turned to determine "whether the record of investigation ... discloses a finding within the meaning of s.19(1) of the Act." The judge summarised and identified (by reference to the relevant paragraphs of the record of investigation) "various matters of a conclusory nature said on behalf of the [appellant] to constitute `findings' for the purposes of s.19(1) ...". They included as (10):

"The circumstances existing immediately before Constable Keown shot the deceased `necessitated him shooting her in self-defence' (para.28)."

The judge then determined what were the findings required by the first four paragraphs of s.19(1) which the Deputy Coroner had in fact made. The presently material determination was:

"On the basis of the matters set out in the record of investigation I am satisfied that the Deputy Coroner has properly found how the death of the deceased occurred as required of him pursuant to s.19(1)(b) of the Act, namely, by the shooting of the deceased by Constable Keown."

The judge then turned to consider whether the record of investigation disclosed a finding as to the identity of any person who contributed to the cause of death, as required by s.19(1)(e). Having set out the grounds in the originating motion as earlier amended, the factors relied on by the appellant to demonstrate that findings alleged in those grounds ought to be set aside as being against the evidence and the weight of the evidence and the arguments of counsel for the first respondent, the judge concluded that there was not any basis to interfere with the findings of the Deputy Coroner being the formal findings under s.19(1), save those that ought to have been made under paragraph (e). The reason for the conclusion was stated as follows:

"On proper analysis I consider that each of the criticisms launched by the [appellant] against the alleged `findings' of the Deputy Coroner in the record of investigation are properly construed as challenges to that which was described by Callaway, J.A. ... as expressions of a view of the evidence or particular aspects of such evidence."

A little later the judge said that, applying the analysis of Callaway, J.A., it was "apparent that none of the grounds relied on by the [appellant] properly challenged the findings of the Deputy Coroner under ss.19(1) and 59 ..." The only matter that could properly be the subject of challenge with respect to the formal findings pursuant to s.19(1) was the failure of the Deputy Coroner to find the identity of Constable Keown as a person who contributed to the cause of death of the deceased, as the Court of Appeal decision showed he had done. The judge stated it was open to the Deputy Coroner to find that the deceased contributed to her own death, though it might be that the degree of contribution by the deceased was limited. It was also held that two grounds relating to contribution were not made out because what was alleged in one was not a finding and what was alleged in the other was not found.

108. Although quoting extensively, as I have said, from the judgment of Callaway, J.A., the judge unfortunately did not quote from or refer to paragraph [14] of his Honour's reasons, which, in my opinion, is determinative of this appeal. There, Callaway, J.A., having in paragraph [13] pointed out that the second respondent's conclusion that the first respondent did not contribute to the cause of death or that he acted in self-defence was not a finding as to the identity of any person who contributed to the cause of death within s.19(1)(e), stated:

"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 para.(b). In the present case, for example, the second respondent found that Ms Richman consciously ignored the appellant's lawful directions 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."[7]

112. That passage was concurred in by Ormiston, J.A. and me. Even if it did not give rise to an issue estoppel between the parties before the primary judge, it constituted one of the rationes decidendi of the decision of the Court of Appeal, for it was part of the answer on the point of substance that had been identified by Callaway, J.A., one limb of the point of substance being whether the second respondent's conclusion[8] that the first respondent acted in self-defence was capable of challenge under s.59. The answer given by the earlier decision was that the conclusion could not be challenged as being a finding made under paragraph (e) of s.19(1), but could be as a finding made under paragraph (b).

115. The position, then, is as follows. The appellant nominated in the first ground of his originating motion a conclusion of fact which the Court of Appeal held was a finding which had been made under paragraph (b) of s.19(1) and which could be challenged under s.59 of the Act. Mr. Woinarski's submission that the conclusion was merely a comment must be rejected. That finding had not been considered by the original primary judge, at least in the context of paragraph (b). The determination by the judge from whom this appeal is brought that the Deputy Coroner's finding pursuant to s.19(1)(b) that the death of the deceased occurred by the shooting of her by the first respondent, whilst correctly stating a finding that was made pursuant to paragraph (b), is incomplete at the least because it fails to include the finding that the first respondent shot her in self-defence. The primary judge was therefore in error in concluding that, save for grounds concerned with contribution, none of the grounds relied upon by the appellant properly challenged the findings of the Deputy Coroner under ss.19(1) and 59 and in the related conclusion that the criticisms launched by the appellant, so far at any rate as they were directed to the finding the subject of ground 1, were properly construed as challenges to expressions of a view of the evidence or particular aspects of it. The judge, having taken too narrow a view of what were the findings made under paragraph (b), erred in failing to consider, as was requisite, the question whether the finding identified in ground 1 was against the evidence and the weight of the evidence.

118. In order that that question may be decided, the originating motion must be remitted, once more, to the Trial Division.[9] It is unfortunate that the proceeding is not yet resolved when it is almost seven years since the death of Ms Richman and almost six years since the second respondent heard the evidence. But the appellant is entitled to have the issue which he placed at the forefront of his originating motion determined in accordance with the law. I point out that, for the finding relating to self-defence to be declared void as being against the evidence and the weight of the evidence, the appellant must satisfy the judge that it was perverse in the sense that it was a finding for which there was no evidence or that no reasonable coroner could make: Keown v. Khan[10] per Callaway, J.A., citing Young v. Paddle Bros. Pty. Ltd.[11], a passage approved by the Full Court in Taylor v. Armour & Co. Pty. Ltd.[12].

121. I mention one other point since no little argument was directed to it. It was a thesis of the decision in Keown v. Khan that under the Act coroners are not concerned with questions of law but with findings of fact. Thus Ormiston, J.A. said[13] that findings of coroners ought to eschew use of language which connotes legal conclusions as opposed to factual findings, and Callaway, J.A. observed[14] that he had consistently referred to "self-defence" rather than "lawful self-defence" or "justified" or "excusable" homicide and that a coroner was not concerned with questions of law of that kind. It was suggested in argument that the Deputy Coroner might have transgressed these precepts in his conclusions about self-defence in paragraphs 28 and 51 of the record of investigation. In so far as the suggestion relies upon the expression "lawful directions" in paragraph 51 it is disposed of by the observation about that expression made in the earlier case which I have already mentioned. In so far as it relies on the words "necessitated" and "justified" in paragraph 28, those words were, in my view, used in a factual sense, referring to practical necessity and justification, and not as legal concepts. No question arises, therefore, of "irregularity of proceedings" within s.59(3)(a) in relation to the finding concerning self-defence.

124. No party mentioned leave to appeal during argument, but, in so far as it is necessary, I would grant it retrospectively. The appeal must be allowed. I do not understand the appellant to be dissatisfied with the declaration and orders made by the primary judge. Rather, he seeks the addition of a declaration relating to a further finding and a corresponding widening of the second of the two orders made by the judge. But it would not be seemly for the two orders to stand and, as it were, be suspended while the matter were further heard in the Trial Division. This Court should, therefore, set aside those two orders and should order that the originating motion be remitted to a judge of the Trial Division and be further heard according to law. The first respondent should pay the appellant's costs of the appeal. The appellant informed the court that he did not seek costs against the second respondent and the second respondent informed it that he did not seek costs at all.

[1] Brown v. United States of America (1920) 256 U.S. 341 at 343; [1921] USSC 117; 65 Law Ed. 961 at 963 per Holmes, J., as cited by Dixon, C.J. in R. v. Howe [1958] HCA 38; (1958) 100 C.L.R. 448 at 463. Though the present case involves a hatchet rather than a knife, the precept is the more applicable inasmuch as a hatchet, if released, can acquire a momentum of its own.

[2] [1998] VSC 297; [1999] 1 V.R. 69.

[3] Paragraph (e) of s.19(1) was repealed by the Coroners (Amendment) Act 1999, but s.76(3) of the principal Act provides that s.19 as so amended applies only to investigations into deaths commenced after the commencement of s.10 of the 1999 Act, namely, 1 July 1999. So the amendment has no presently relevant effect.

[7] I have omitted the footnotes. In one of them his Honour pointed out that the expression "lawful directions" was merely descriptive of an uncontroversial fact.

[8] Identified by his Honour as appearing especially at paragraph 28 of the record of investigation. The use of the word "conclusion" in that paragraph is to be noted.

[9] Boyle v. Munro [1998] 4 V.R. 773 at 779.

[11] [1956] VicLawRp 6; [1956] V.L.R. 38 at 41 ("only if ... there is no reasonable view of the evidence that is consistent with" the finding challenged).

[12] [1962] VicRp 48; [1962] V.R. 346 at 351-352.