Leahy v Barnes [2013] QSC 226

The applicant emphasises this was the first public disclosure of the Coroner of the fact of his private communications with members of the Leahy and Arnold families.

**[139] That disclosure apparently occurred when the Coroner and Detective Inspector Smith met with representatives of the Leahy family and a solicitor representing the Arnold family on 23 December 2010. The Coroner did not have a like meeting with the applicant or his legal representative.

[140] However, the Coroner did, on 1 December 2010, write to the applicant informing him of the convening of the inquest and inviting him to attend a meeting to discuss preliminary issues.[75] The address to which that correspondence had been directed was a West Australian address derived from earlier information but it was not Mr Leahy's current address and the correspondence was not received by him. An undated file note in the Coroner's file contains a notation that Kathleen Leahy, the applicant's daughter, who had been present at the meeting of 23 December 2010, "will call" the applicant.[76] Further, in a file note of the Office of the Coroner dated 17 December 2010 a note of a telephone conversation with Kathleen Leahy includes the hand written annotation "they are going to speak to Alan".[77]

[141] The Coroner's investigation team wrote to the applicant by correspondence on 17 June 2011 informing him of the re-opening of the inquest and the date and venue of a pre-inquest conference.[78] That correspondence was received by the applicant; however, the pre-inquest conference did not proceed as planned.

[142] The above chain of events does not suggest there was any attempt to shut the applicant out from the discussions with relatives of the deceased or their lawyers and from the disclosure of the Coroner's past connection with an aspect of the case when he was at the CJC. To the contrary, an attempt was made to write to the applicant. His daughter also apparently informed the Coroner's Office that the applicant would be spoken to.

[143] The real gravamen of the applicant's complaint is that there was a lack of conscientiousness in the Coroner's Office in ensuring the applicant was directly informed of the Coroner's disclosure and of the Coroner's invitation to meet him and discuss preliminary issues. The result - that the applicant was not informed of the Coroner's disclosure before ordering the inquest - was obviously a product of bureaucratic inefficiency rather than bias.

[144] A fair-minded lay observer would not apprehend from those circumstances that the Coroner was biased against the applicant and might decide the inquest other than on the legal and factual merits.

[145] For the reasons canvassed at [58]-[92] above in respect of the Coroner's dealing with the alleged lies of the applicant as evidence of guilt the decision to commit should be set aside.

[146] That decision does not disturb the Coroner's other findings. The inquest's effective overturning of the positive findings of past inquests that Ms Arnold took her own life and Ms Leahy's still stands.

[147] As to the sole component of the decision which has been interfered with - the decision to commit the applicant for trial - the parties agree no further substantive order other than setting it aside should be made. It is common ground that it is inappropriate to remit that issue back to the Office of the State Coroner. Whether proceedings should be instituted against any person in respect of the killings remains, as ever, a matter for the State's prosecuting authorities.

[148] It will be necessary to hear the parties as to costs.

1. The decision of the Coroner to commit the applicant for trial is set aside.

[3] Section 45(5) of the new Act specifically precludes a Coroner from finding a person is or may be guilty of an offence and s 48(2)(a) provides that the Coroner must inform the Director of Public Prosecutions if the Coroner reasonably suspects a person has committed an indictable offence.

[7] Inquest into the deaths of Julie-Anne Leahy and Vicki Arnold ("reasons") p 116.

[8] Metropolitan Coal Co of Sydney Ltd v Australian Coal and Shale Employees' Federation [1917] HCA 64; (1917) 24 CLR 85, 97, citing the Privy Council in Delhi and London Bank Ltd v Orchid LR 4 Ind App 127, 135.

[9] (2001) 209 CLR 57, 73.

[10] [1960] HCA 46; (1960) 103 CLR 368, 378.

[11] [1971] HCA 12; (1971) 127 CLR 106, 134-135.

[12] [1851] EngR 970; (1851) 11 CB 755 [138 ER 672].

[14] [1996] HCA 45; (1995-1996) 184 CLR 333, 345-346.

[15] [2007] HCA 3; (2007) 230 CLR 1, 17-18.

[17] [1990] HCA 56; (1990) 170 CLR 573.

[18] See R v Exall [1866] EngR 22; (1866) 4 F & F 922, 929 per Pollick CB.

[24] See Judicial Review Act 1991 (Qld) ss 20, 23.

[28] [1993] HCA 63; (1993) 178 CLR 193.

[29] (2000) 200 CLR 234.

[38] Inquest Ex B35.3 pp 35-36; Inquest Transcript 9-50.

[39] Reasons p 37, Inquest Ex B35.3 p 35; Inquest Transcript 9-50.

[40] Reasons p 37, Inquest Ex D2 p 17 (the word "proceeded" appears in this context in Inspector Kruger's report whereas the word "purchased" is used instead in the reasons).

[46] Lamb v Moss [1983] FCA 254; (1983) 76 FLR 296.

[47] See House v Defence Force Retirement & Death Benefits Authority [2011] FCAFC 72; (2011) 193 FCR 112.

[53] (1998) 194 CLR 286, 299.

[56] The intervener notes the Professor gave evidence in the County Court of Victoria in Stuart v Kirkland-Veenstra [2009] HCA 15; (2009) 237 CLR 215, 237.

[62] The applicant did not agitate in this application the issue of the admissibility of such evidence at a trial.

[66] Affidavit of Malcolm James Liston filed 30 May 2013 Ex MJL3.

[67] Affidavit of Malcolm James Liston filed 30 May 2013 Ex MJL4.

[68] [2000] HCA 63; (2000) 205 CLR 337, 344.

[72] British American Tobacco Australia Services Limited v Laurie (2011) 242 CLR 203, 305, 306, 329.

[74] British American Tobacco Australia Services Limited v Laurie (2011) 242 CLR 203, 305.

[75] Affidavit of Malcolm James Liston filed 2 August 2013 Ex MJL13.

[76] Affidavit of Malcolm James Liston filed 2 August 2013 Ex MJL12 p 32.

[77] Affidavit of Malcolm James Liston filed 2 August 2013 Ex MJL12.

[78] Affidavit of Malcolm James Liston filed 2 August 2013 Ex MJL14.