Nash v State Coroner of New South Wales - [2025] NSWSC 93 - NSWSC 2025 case summary — Zoe

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Nash v State Coroner of New South Wales

[2025] NSWSC 93

Supreme Court of NSW|2025-02-05|Before: Price AJ

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2025-02-05

Before

Price AJ

Catchwords

[2012] HCA 55 Country Energy v Deputy State Coroner Paul MacMahon [2010] NSWSC 943 Decker v State Coroner of NSW (1999) 46 NSWLR 415
(1915) 32 WN (NSW) 129 Herron v Attorney-General (NSW) (1987) 8 NSWLR 601
(1987) 28 A Crim R 353 Inquest into the death of Scott Russell Johnson (30 November 2017) Lacey v Attorney-General (Qld) (2011) 242 CLR 573
[1906] HCA 70 R (Maughan) v Oxfordshire Senior Coroner (Chief Coroner of England and Wales intervening) [2021] AC 454

Source

Original judgment source is linked above.

Catchwords

[2012] HCA 55 Country Energy v Deputy State Coroner Paul MacMahon [2010] NSWSC 943 Decker v State Coroner of NSW (1999) 46 NSWLR 415(1915) 32 WN (NSW) 129 Herron v Attorney-General (NSW) (1987) 8 NSWLR 601(1987) 28 A Crim R 353 Inquest into the death of Scott Russell Johnson (30 November 2017) Lacey v Attorney-General (Qld) (2011) 242 CLR 573[1906] HCA 70 R (Maughan) v Oxfordshire Senior Coroner (Chief Coroner of England and Wales intervening) [2021] AC 454[1955] HCA 39 SZTAL v Minister for Immigration & Border Protection (2017) 262 CLR 362

Judgment (19 paragraphs)

[1]

Southall v Cheshire County News Co Ltd (1912) 5 BWCC 251 Spiratos v Australasian United Steam Navigation Co Ltd (1955) 93 CLR 317; [1955] HCA 39 SZTAL v Minister for Immigration & Border Protection (2017) 262 CLR 362; [2017] HCA 34 Veitch v State Coroner [2008] WASC 187 Texts Cited: Ian Freckelton and David Ranson, Death Investigation and the Coroner's Inquest (1st ed, 2006, Oxford University Press) John Abernethy et al, Waller's Coronial Law and Practice in New South Wales (4th ed, 2010, LexisNexis) Paul Matthews, Jervis on Coroners (15th ed, 2024, Sweet & Maxwell) William Ramsay Smith, A Manual for Coroners: Being A Guide to Coronial Inquiries and Inquests in South Australia and Throughout Australasia and in England (1904, Hussey & Gillingham) Category: Principal judgment Parties: Peter Bernard Nash (Plaintiff) State Coroner of New South Wales (First Defendant) (submitting appearance) Attorney General of New South Wales (Second Defendant) Representation: Counsel: B Hart (Plaintiff) D Kell SC / J Davidson (Second Defendant)

[3]

JUDGMENT

HIS HONOUR: In the early morning of 15 April 1935, Mr Leslie Andrew Nash ("the deceased"), a serving police officer was found dead in Hurstville Police Station. The deceased's body was found by Constable Harvey on the bathroom floor with a gunshot wound to the head. A service revolver was located nearby. The deceased was buried the next day.
On 29 April 1935, a coronial inquest into the deceased's death was held ("the coronial inquest"). The Coroner found that the deceased died from "the effects of a bullet wound of the head, wilfully inflicted by himself, at the same place on the same day".
By amended summons filed on 2 September 2024, the plaintiff, Mr Peter Nash, a son of the deceased seeks an order pursuant to s 85 of the Coroners Act 2009 (NSW) ("the Coroners Act") for this Court to quash the findings of the Coroner and an order that a fresh inquest be held.
The Attorney General of New South Wales, the second defendant, opposes the orders sought by the plaintiff. The NSW Coroner, the first defendant, has filed a submitting appearance.
Although almost 90 years have elapsed since the deceased's death, that lapse of time is no bar to the proceedings as the Coroner has jurisdiction to hold a further inquest into the deceased's death as it "occurred within the last 100 years": s 19 of the Coroners Act.
Section 85 of the Coroners Act provides as follows: "85 Orders for fresh inquests or inquiries (cf Coroners Act 1980, s 47 (2)) The Supreme Court may, on the application of the Minister or any other person, make an order that an inquest or inquiry that has been (or that has purportedly been) held be quashed and that a new inquest or inquiry be held if the Court is satisfied that it is necessary or desirable to do so in the interests of justice because of: (a) fraud, or (b) the rejection of evidence, or (c) an irregularity of proceedings, or (d) an insufficiency of inquiry, or (e) the discovery of new evidence or facts, or (f) any other reason."
Despite the best endeavours of the parties, almost all of the documents and evidence relating to the coronial inquest have not been able to be retrieved. It appears that the relevant material may have been either lost or destroyed.

[7]

Newspaper articles annexed to Mr Kelly's affidavit

On 15 April 1935, the Armidale Express and New England General Advertiser reported that the deceased "who had been in ill health, had been told he would have to undergo a serious operation". The article appeared under the heading "strain of ill-health too great …".
The report of the deceased's ill-health also appeared in an article published in the News in Adelaide on 15 April 1935: "Nash, who had been in ill health and had been told he would have to undergo a serious operation, began duty at 5 am."
In that same article, it was further stated: "Today … [the deceased] was to have sat for an examination, which his inspector said he would have passed without the slightest difficulty."
In an article published in the Sydney Morning Herald on 16 April 1935, it was reported that the deceased was in ill-health and supposed to sit an examination: "Constable Leslie Andrew Nash, 38, was found dead in the bathroom at the Hurstville Police Station yesterday morning with a bullet wound in his head. A revolver was found nearby. Nash was to have sat for an examination yesterday morning and had been in ill-health for some time."
An article published in the Hurstville Propeller on 18 April 1935 stated that: "First-Class Constable Leslie Andrew Nash, station officer at the Hurstville Police Station, was found dead at the station early on Monday morning. Constable Nash commenced duty at 5 am. Constable Harvey left the station and when he returned Nash was missing. A search revealed his body in the bathroom attached to the station. Nash's service revolver was nearby."
In an article published in the Newcastle Morning Herald and Miners' Advocate on 30 April 1935, it was reported that the deceased was worried over a departmental examination: "Forgetting what he had been told at lectures, Constable Leslie Nash, 37, committed suicide at Hurstville Police Station on April 15. At the inquest today, Constable James Harvey said that Nash told him that he was worrying over a departmental examination that day, and had forgotten what he had been told."

[8]

Investigations by Cox Commercial Services

In July 2020, the plaintiff engaged the services of Mr Peter Cox from Cox Commercial Services ("CCS") to assist in investigating the deceased's death.
On 7 September 2020, CCS prepared a report ("CCS report") based on its investigations. In that report, Mr Cox opined that there were a number of "anomalies" in relation to the alleged suicide which were as follows: "1. After this unusual death; there was no post mortem … 2. The Deceased's body was released for burial which took place on 16 April 1935 ... one day after his death … 3. There is no evidence that any purposeful investigation was carried out into this death. 4. Our "research" reveals, Detectives were classified as a '"Branch'" in the NSW Police Force, in 1879. 5. Indeed in 1930, Detectives were transferred to various Divisions within the Metropolitan area of Sydney, so there may well have been Detectives Stationed at Hurstville. 6. Accordingly, why was there no investigation into the death of Constable … Leslie Andrew NASH ... 7. We have also researched GSR (GUNSHOT RESIDUE tests) - which in previous years, were used to examine the hands and clothing of a person of interest, to determine whether that person had fired a weapon recently. However, it has been confirmed, that GSR testing did not take place until the 1970''s or in Australia until about 2006 and in any case, was not considered '"reliable'". 8. It would be significant to establish (if possible) the make and model of the handgun issued to Constable … NASH. The Writer recalls in the 1940's many Police were issued with a semi-automatic pistol of … [Webley and Scott] brand. 9. We are aware from our knowledge that the … [Webley and Scott] (commonly referred to as the Wobly Scott) was considered unreliable, and its use by NSW Police was discontinued in about the 1950's. 10. Obviously, if the Deceased had been issued with a … [Webley and Scott] pistol, it may have malfunctioned, thus causing his accidental death. 11. Our research has failed to determine when the Forensic division of the Ballistic Section, was first established in the NSW Police Force. It is our view, if indeed the Ballistic Section did exist in 1935, Constable Nash's service pistol ought to have been examined by a [b]allistics expert … to determine whether perhaps it may have malfunctioned, resulting in the death."
Ultimately, Mr Cox's preliminary conclusions were: "… the finding by the Coroner in 1935, that Leslie Andrew Nash committed suicide, may be flawed because inadequate investigations were undertaken, which meant inadequate evidence was placed before the Coroner, to enable him to arrive at a proper decision."

[11]

Professor Duflou's report

Professor Duflou is a forensic pathologist who was engaged by the plaintiff to provide an opinion on the deceased's death.
On 16 December 2024, Professor Duflou prepared a report on the death of the deceased. Professor Duflou's opinion was formed by taking into account all evidence now placed before this Court. In his report, Professor Duflou addressed and provided responses to various questions. What follows are relevant parts of Professor Duflou's report.
Professor Duflou stated that coronial post-mortem examinations were conducted in NSW in 1935 at the time of the deceased's death: "… Yes. It is certainly the case that coronial autopsies, or postmortem examinations, were conducted in the 1930s in NSW. As an example, Linda Agostini, better known as the "Pyjama Girl" died of a gunshot wound to the head in August 1934, and an examination was done in that case which included an x-ray of the relevant part of the body to identify the nature of the injury. In that examination also, it was concluded the deceased had sustained eight blows to the head. There is no doubt also that autopsies were being conducted during this time and the value of the autopsy in death investigation was well known at this time. Typically, it can be expected that a combination of x-ray imaging and a formal postmortem examination of at least the affected part of the body be performed. The premises where autopsies were being conducted at this time was at the mortuary attached to the City Coroner's Court at the Rocks (presently a tourism information bureau), and although facilities even then were considered sub-standard, it was also the case that there was nothing which prevented conduct of autopsies there ..."
Professor Duflou reported that without a post-mortem examination other possible explanations for the death of the deceased such as accidental death, homicide or misadventure could not be conclusively ruled out: "The major means of determining manner of death (such as accident, homicide, misadventure, suicide, and natural causes) is by investigation of the circumstances surrounding a death … it is also the case that the autopsy can provide important pointers as to manner, with for example the location of gunshot wounds, an estimate of distance of muzzle to skin based on appearances of a wound, the directions in which the bullet/s travelled, and importantly retrieval of the bullet for further examination."
Professor Duflou opined that it was unlikely a post-mortem examination was performed on the deceased: "On balance it appears to me unlikely that a postmortem examination of the body was done in this case. Assuming even a modicum of investigation at the scene, it would be unlikely that the body of the deceased would have arrived in time for the autopsy "list" of the day, and especially if x-rays of the body had been done first (to assist in locating any bullets) this would inevitably delay the autopsy to the following day. Although a body is generally available for receipt by family (or more correctly, funeral directors) immediately after the autopsy, it would be unusual for the body to be buried immediately on receipt."
He also explained that there are: "… [N]o impediment for the forensic pathologist to generate a written report on the postmortem observations and any conclusions relating to cause of death at the time of completion of the examination, and without delay."
On the reliability of the Coroner's findings on the deceased's death, he stated that it was "a difficult question to answer, given the very limited information available".
Further, Professor Duflou considered that: "For example, if the gunshot wound was to the right temple and the deceased was right handed, and it had appearances which indicated the wound was sustained with contact of the muzzle of the weapon to the side of the head, and there was documentation which can be interpreted as a suicide note in the handwriting of the deceased at the scene, and say the door to the room where the deceased was found was locked from the inside, those would all individually and especially in combination point to a gunshot wound inflicted with suicidal intent. On the other hand, absence of one or many of these pointers towards suicide could lead to a conclusion which would make such a determination more uncertain or even impossible to make."
In relation to whether a ballistics examination should have been performed he observed that: "... linking the spent bullet to the putative weapon, identification of fingerprints on the weapon, and potentially detection of gunshot [sic] residue on the deceased's hands could all have assisted in determining circumstances surrounding the death."
Professor Duflou ultimately concluded that it was difficult to determine the true manner and cause of the deceased's death, stating that: "The provided information in this case is essentially of a police officer found dead in the bathroom of a police station with a gunshot wound to their head. No further detail is available, and under those circumstances it appears to me possible that the deceased self-inflicted and intentionally shot himself in the head, but there would be many other possibilities, including as examples a shooting accident, and actions of another person."

[12]

Evidence relating to the Coronial Inquest

NSW State Archives identified and retrieved three documents that related to the deceased's coronial inquest. A digital copy of these documents was annexed to the affidavit of Ms O'Rourke affirmed on 29 January 2025 and described as follows: "NRS-343-3-[3-959]-Register of Coroners' Inquests and Magisterial inquiries - Leslie Andrew Nash p148 entry 668a [marked as annexure "A"]; NRS-1783 Registers of inquests and inquiries [Sydney City Coroner] - [7/1467] - Leslie Andrew Nash - Z13 - page 372 [marked as annexure "B"]; and NRS-1788 Registers of bodies received [Sydney City Coroner] - Leslie Andrew Nash - Entry No. 573 - page 345 [marked as annexure "C"]."
Annexure A of Ms O'Rourke's affidavit is a handwritten document that records a register of inquests conducted during April 1935. The deceased is listed as entry number 8 and the verdict of the inquest is noted as "effect of a bullet wound in the head, wilfully self-inflicted". Of significance is that in the last column titled "whether post-mortem held", the response is written as "no".
Annexure B of Ms O'Rourke's affidavit is a handwritten ledger. In that document, it can be observed that "no autopsy" was conducted by "[Dr] Palmer" on the deceased.
Annexure C of Ms O'Rourke's affidavit is titled "Register of Bodies brought to the Sydney Morgue". The document contains a handwritten description of the deceased's death as follows: "Leslie Andrew Nash, constable first class attached to Hurstville Police Station was performing station duty from 5am till 1pm on this date. Constable Harvey who was driving P.D car, informed Constable Nash that he was going to look around the shops and would be back at 5.30 am. Nash gave Harvey [a quarter] and asked him to get a pound of butter. When Harvey returned at 5.30am he found Constable Nash lying on the bathroom floor with a wound over right eye, blood on his face and floor, and appeared to be dead. His service revolver with one empty shell in it and four live cartridges was found beside him. The body was conveyed by ambulance to Kogarah Hospital where life was pronounced extinct by Dr Balmain."

[13]

Plaintiff's submissions

The plaintiff contended that there were a number of anomalies surrounding the coronial inquest which raised doubt about the correctness of the coronial inquest finding. These anomalies were: 1. No post-mortem examination had been conducted; 2. The deceased's body was released for burial which took place the next day; 3. There is no evidence as to what part of the deceased's head the fatal injury had occurred; 4. The evidence placed before the coronial inquest has been lost or destroyed and unable to be retrieved; 5. The evidence suggesting the deceased was allegedly suffering from health issues has been vehemently denied by his family; 6. The deceased was a committed husband and father of five children and his wife was pregnant expecting their sixth child; 7. There is no evidence pointing to the exact type or model of the service revolver. Further, no ballistic examination had been performed to exclude the possibility of the firearm having a malfunction or accidental discharge which resulted in the deceased's death; 8. The findings were made prior to the decision of Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34, where it was held that the test for determining the civil standard of proof for a court is to be comfortably satisfied with the evidence in order to reach a correct and just conclusion; 9. The coronial inquest was conducted 14 days after the deceased's death and on this basis was insufficient to form a correct view of the death as being "wilfully inflicted"; and 10. The deceased was buried in a Catholic Cemetery against the prevailing conception at that time, which prevented a person who had committed suicide from being buried in consecrated ground.
The plaintiff submitted that pursuant to s 85(c) of the Coroners Act it can be demonstrated there was an irregularity of proceedings as a post-mortem examination had not been held. Further, the coronial inquest being held 14 days after the deceased's death in effect did not allow a "proper and fulsome investigation to be completed before the deceased's death". Hence the plaintiff argued that together with no post-mortem being conducted and it not being known whether a ballistic investigation was performed, an insufficiency of inquiry under s 85(d) of the Coroners Act had been established and relied on Ex parte The Attorney-General (1915) 15 SR (NSW) 355; (1915) 32 WN (NSW) 129 and R v HM Coroner for Inner North London, ex parte Cohen (1993) 158 JP 644.
Another submission was made that in accordance with s 85(e) of the Coroners Act the material contained in both the plaintiff's and Mr Kelly's affidavits collectively with Professor Duflou's report should be considered as "new evidence or facts" that was not before the Coroner at the coronial inquest referring to Country Energy v Deputy State Coroner Paul MacMahon [2010] NSWSC 943 at [48] (Schmidt J) ("Country Energy"). The plaintiff further contended that there was no evidence to refute any suggestion that it was possible the deceased's death may have been caused by a malfunction or accidental discharge of his service revolver. The plaintiff argued that this new evidence provides a sufficient basis for the Court to be satisfied in the interests of justice that a fresh inquest is required.
Finally, the plaintiff submitted that although there has been a lengthy delay since the original findings, it is in the interests of justice that the death of any serving police officer be appropriately investigated. The plaintiff further contended that the coronial findings have caused considerable stress and anguish to the deceased's children who had been advised that the deceased was not eligible to be listed on the NSW Police Honour role.

[14]

The second defendant's submissions

Senior Counsel for the second defendant submitted that even if no post-mortem was conducted in the absence of any surviving records relating to the coronial investigation and the coronial inquest held, it simply could not be assumed that the coronial investigation done at the time was inadequate or not proper. Furthermore, Senior Counsel argued as a practical matter, it was not even possible for this Court to know what it is effectively being asked to quash, because the only remaining available record is not even a primary record of the coronial inquest, but simply an entry handwritten in a ledger. Especially, given that the author is unknown and it has been provided without the context of the coronial inquest records as a whole, including the evidence to which the Coroner had regard when arriving at his conclusion.
Senior Counsel contended that reliance on Professor Duflou's expert report which opined that "autopsies were conducted in the 1930s" as set out above at [34], was an insufficient basis to establish an irregularity of proceedings under s 85(c) of the Coroners Act, particularly when one does not know what other evidence was placed before the Coroner.
When referring to the plaintiff's contended anomalies, Senior Counsel pointed out as to the third, fourth and seventh anomalies, it was just not possible to know whether the evidence before the Coroner included evidence of the head wound and ballistic examination of the service revolver. It was submitted that photographic evidence and other evidence relating to the deceased's head wound may have been available before the Coroner.
A further submission was made that there was no evidence that it was anomalous for the records of coronial proceedings which took place nearly 90 years ago to have been destroyed or be unavailable.
As to the plaintiff's fifth and sixth anomalies, Senior Counsel submitted that none of the material in the plaintiff's affidavit provided a basis to quash the coronial inquest findings. It was argued that the plaintiff's affidavit was merely suggesting dissatisfaction with the findings of an inquest which is an insufficient basis for making an order under s 85 of the Coroners Act. Reference was made to Country Energy at [40] (Schmidt J) and Mauceri v Deputy State Coroner [2017] NSWSC 545 at [127] (Bellew J).
When referring to the plaintiff's ninth anomaly, Senior Counsel submitted there was no evidence that in 1935, the conclusion of an inquest held 14 days after the deceased's death was "anomalous".
Senior Counsel further submitted that the NSW State Coroner had pointed out it would not be possible to make any evidence-based findings as to the manner of death of the deceased at a further inquest in the absence of any of the coronial inquest records and after the passage of almost 90 years. In other words, Senior Counsel contended that there is not even a remote possibility of any insufficiency of inquiry if it had occurred being able to be addressed or cured at a fresh inquest.
Senior Counsel submitted that in order to provide a basis for the exercise of the wide discretion under s 85 of the Coroners Act, the possibility of a different finding must be a real possibility and more than mere speculation citing Veitch v State Coroner [2008] WASC 187 at [43]-[44] (Beech J) ("Veitch"). It was argued that the present application raises a possibility of a different finding that is necessarily speculative by reason of the absence of contemporaneous records. Senior Counsel referred to Professor Duflou's conclusions above at [41] as supportive of the argument that it was possible on the current information to find that the deceased's death was self-inflicted. However, it was recognised that Professor Duflou's opinion also suggested it was reasonable to suppose there would be many other possibilities including "a shooting accident and actions of another person".
As to Detective Sergeant Warren's letter, Senior Counsel submitted that there was no basis upon which the Court could be satisfied that the deceased had used a Webley and Scott semi-automatic pistol. Senior Counsel emphasised that for the plaintiff to succeed there must exist a reputable body of evidence which if accepted, would indicate that the Coroner's findings as to the manner and cause of the deceased's death were erroneous referring to the principle articulated by McHugh JA at 617 in Herron v Attorney-General (NSW) (1987) 8 NSWLR 601; (1987) 28 A Crim R 353 ("Herron"). Senior Counsel argued that had not been demonstrated by the plaintiff.
In his final submission, Senior Counsel accepted that as a general matter, the interests of justice favoured a proper investigation of the death of a serving police officer. However, in the present case, it could not be found that there was an improper or inadequate investigation of the deceased's death when no records of the coronial inquest survived.

[16]

A short review of relevant case law

In order for this Court to exercise the discretion under s 85 of the Coroners Act, it should first consider in accordance with established principles of statutory interpretation the text of the provision having regard to its context and purpose: Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55 at [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ (as his Honour then was)); SZTAL v Minister for Immigration & Border Protection (2017) 262 CLR 362; [2017] HCA 34 at [14] (Kiefel CJ, Nettle and Gordon JJ).
It is apposite to set out the objects of the Coroners Act as provided under s 3: "The objects of this Act are as follows (a) to provide for the appointment of coronial officers, (b) to provide that Magistrates are coroners by virtue of office, (c) to enable coroners to investigate certain kinds of deaths or suspected deaths in order to determine the identities of the deceased persons, the times and dates of their deaths and the manner and cause of their deaths, (d) to enable coroners to investigate fires and explosions that destroy or damage property within the State in order to determine the causes and origins of (and in some cases, the general circumstances concerning) such fires and explosions, (e) to enable coroners to make recommendations in relation to matters in connection with an inquest or inquiry (including recommendations concerning public health and safety and the investigation or review of matters by persons or bodies), (f) to provide for certain kinds of deaths or suspected deaths to be reported and to prevent death certificates being issued in relation to certain reportable deaths, (g) to prohibit the disposal of human remains without appropriate authority."
In Herron, Kirby P (as his Honour then was) extensively considered the criteria to exercise this power and determined it involves a discretionary value judgment derived by reference to the phrase "in the interests of justice". His Honour analysed this phrase within the context of the predecessor provision to s 85 Coroners Act, then being s 47(2) of the Coroners Act 1980 (NSW) (now repealed) which provided as follows: "Where an inquest or inquiry has been, or purports to have been, held and the Supreme Court, upon an application made by, or under the authority of, the Minister or by any other person is satisfied that, by reason of fraud, rejection of evidence, irregularity of proceedings, insufficiency of inquiry, discovery of new facts or evidence, or otherwise, it is necessary or desirable in the interests of justice that the inquest or inquiry be quashed and a fresh inquest or inquiry be held, the Supreme Court may order that the first inquest or inquiry be quashed and that instead thereof a fresh inquest or inquiry be held."
His Honour concluded the phrase in the "interests of justice" favoured adopting a wide discretion stating at 613: "Those words "in the interests of justice" are plainly words of the widest possible reference. Indeed, there could scarcely be a wider judicial remit. They enliven a discretionary judgment for the reasons referred to by Mason and Deane JJ in Norbis [v Norbis (1986) 161 CLR 513; [1986] HCA 17]."
Kirby P's articulation of a wide discretionary power conferred under the now s 85 of the Coroners Act has been cited with approval in a number of decisions of this Court: Cecil v Attorney General of New South Wales [2012] NSWSC 1186 at [47] (Hidden J) ("Cecil"); Country Energy at [39] (Schmidt J).
McHugh JA's observations in Herron at 617 echoed a similar line of reasoning stating: "In an inquest the "interests" of a person involved remain subsidiary to the paramount public interest in ascertaining the truth about the manner and cause of the person's death."
His Honour further considered that: "In the forefront of matters to be considered in determining whether it is in the interests of justice to hold a fresh inquiry is the existence of a reputable body of evidence which, if accepted, would indicate that the original finding as to the manner and cause of death of [the deceased] was erroneous. The public interest requires that the finding as to the manner and cause of death of [the deceased], if it be an error, should be corrected."
Further, in Herron, Kirby P noted that other relevant considerations required by the "interests of justice" to be taken into account are that the "community and the relatives have an interest in having the circumstances of the deceased's death fill exposed and thoroughly re-evaluated". Also, McHugh JA noted at 616-617, the "paramount public interest in ascertaining the truth about the manner and cause of the person's death". A similar statement is found in Waller's Coronial Law and Practice in New South Wales (4th ed, 2010, LexisNexis) at [I.112] stating "[t]he wishes of the family, and potentially the wider community in appropriate cases, should be taken into account".
In Bilbao v Farquhar [1974] 1 NSWLR 377 at 388, Bowen JA observed that the purposes of an inquest included "the satisfaction of the legitimate concerns of relatives, the concern of the public in the proper administration of institutions, gaols and the care of persons in custody and the like".
In Cecil, Hidden J quashed the Coroner's finding that the deceased had committed suicide by jumping off the roof of his unit block and directed that a new inquest be held under s 85 of the Coroners Act. His Honour was persuaded by new evidence which raised doubts about the likelihood of the deceased being able to easily access the roof. Further, the deceased's injuries were not consistent with having jumped or fallen from the height of the roof. His Honour adopted the reasoning of McHugh JA in Herron and concluded at [60] that there was a "real possibility that the Coroner's finding as to the manner and cause of death was erroneous", and on this basis "a further inquiry is called for in the interests of justice".
In Country Energy, Schmidt J considered the scope of the nature of the discretion under s 85 of the Coroners Act and determined that a "mere dissatisfaction" with a conclusion reached at an inquest was not alone a sufficient basis for the discretion to be exercised. Her Honour stated at [40]: "Of course such a wide discretion must be exercised on a principled basis, having in mind the competing public interest considerations which arise, whenever an application for a fresh inquest is made. Mere dissatisfaction with a conclusion reached at an inquest, or even that a different conclusion than the one reached, might have been available on the evidence, or even on new evidence subsequently discovered, which supports evidence already before the Coroner in the earlier inquest, may not provide a sufficient basis for the discretion to be exercised. As McHugh J discussed [in Herron], what must be established is the real possibility that the original finding as to the manner and cause of death was erroneous, with the result that the inquest has failed to achieve what the Coroners Act envisages, namely that the manner and cause of death be determined."
Relevantly, Schmidt J based her Honour's reasoning on McHugh JA's observations in Herron at 617, that in order for the plaintiff to succeed, there must exist a "reputable body of evidence" which indicates "a real possibility" that the Coroner's finding as to the manner and cause of the deceased's death at the original inquest was erroneous.
In Bhattacharya v Hamilton [2000] NSWSC 102 ("Bhattacharya"), Dunford J quoting McHugh JA in Herron, considered it was necessary to determine whether there "is a reputable body of evidence, which, if accepted, would indicate that the originating finding as to the manner and cause of death was erroneous": Herron at 617. In Bhattacharya, the next of kin did not accept the cause of death determined by the Coroner but proceeded with a theory alleging a conspiracy to murder amongst medical staff and others. His Honour observed in relation to new evidence that it failed to meet the threshold of a reputable body of evidence and said at [63]-[64]: "There has not been one single piece of evidence produced at the hearing to suggest that the Coroner made any error in his finding. In particular, there is not a single piece of expert medical opinion suggesting that the diagnosis was incorrect, the treatment inappropriate or negligent, or that the deceased's death could have been induced or contributed to by some form of poison, as alleged by the plaintiff. The plaintiff, no doubt, felt and continues to feel his wife's death deeply, and it seems he continuous to clutch at straws in the hope that somewhere, somehow, something may turn up which might raise the possibility that his wife's death could have been avoided. But suspicion, suggestion, hope, fear and imagination are no substitute for evidence. There is simply no evidence to suggest that the Coroner's findings were wrong or to indicate that it is in the interests of justice that an inquest be held."
In Director-General Department of Community Services v Crombie (Supreme Court (NSW), Harrison M, 19 August 1998, unrep) ("Crombie"), Master Harrison considered whether it was necessary that a fresh inquest would likely lead to a different finding or verdict and said at 31-32: "It is not fundamental to the making of an order that a fresh inquiry would be likely to lead to a different finding or verdict. However, the court in considering the public interest, should consider the nature and extent of the defect, its bearing upon the outcome or probable outcome of the coronial inquiry and the likelihood of a fresh inquiry conducted without such a defect producing a different finding or verdict. In weighing the interest of justice it is relevant to consider whether any practical end is likely to be gained by ordering a fresh inquiry … The court does not look to mere technical deficiencies but if there is a real risk that justice had not been done, the court should order a new inquest."
In that case, her Honour was satisfied that it was necessary in the interests of justice that a fresh inquest be held irrespective of whether a fresh inquest would lead to a different finding. This turned largely on new evidence which had emerged since the original inquest leading to some doubt about the circumstances surrounding the manner and cause of the deceased's death.
In Veitch, Beech J at [43] expressed a similar line of reasoning to that of Master Harrison in Crombie and stated: "… [I]t is not necessary to establish that a different verdict will probably be arrived at on a second inquest. Rather, it will be sufficient if there is a possibility that the result of a second inquest will be different from the first. There must be something more than mere speculation …"
Further, his Honour said at [44] that the possibility of a different outcome must be a "real or realistic possibility, not merely a theoretical possibility".

[17]

Consideration

Almost 90 years ago the Coroner found that the deceased had died "from the effects of a bullet wound to the head, wilfully inflicted by himself". Speaking plainly, the Coroner at the conclusion of the coronial inquest returned a verdict of suicide. Suicide is the deliberate and intentional taking of one's own life.
Historically, suicide by a family member brought disgrace and shame to the family. A suicide finding had deleterious impacts on the family's reputation, including burial and financial consequences. Initially at common law, it was necessary for the body of a person who had died by way of suicide to be buried on the highway with a wooden stake through the heart: Ian Freckelton and David Ranson, Death Investigation and the Coroner's Inquest (1st ed, 2006, Oxford University Press) at 634.
Fortunately, this was abolished in 1823. However, burial consequences remained which the plaintiff made reference to in his affidavit. In 1935, the Catholic Church did not permit a suicide to be buried in consecrated grounds. Suicide remained a crime in NSW until it was abrogated by the enactment of s 31A of the Crimes Act 1900 (NSW) in 1983.
As a result of the historical background and the stigma attaching to suicide, the law developed a presumption against suicide. It should never be presumed, and must be based on evidence that the deceased intended to take his own life. As was observed in Jervis on Coroners (15th ed, 2024, Sweet & Maxwell) at [13-67] citing R (Maughan) v Oxfordshire Senior Coroner (Chief Coroner of England and Wales intervening) [2021] AC 454; [2020] UKSC 46 at [3] (Lady Arden with whom Lord Wilson agreed), two necessary elements were required to be proved before suicide can be found: "i) the deceased took his or her own life; and ii) it was done intentionally."
The necessity for there to be sufficient evidence to establish suicide has commonly been referred to in a line of English authorities. For instance, in Southall v Cheshire County News Co Ltd (1912) 5 BWCC 251 ("Southall"), the English Court of Appeal allowed the appeal and held that there was insufficient evidence to justify the finding of suicide by a County Court Judge. In this case, the body of the deceased was found in a canal 400 yards from his home. The County Court Judge found that a condition of traumatic neurasthenia resulting from an accident at work was the reason for the deceased committing suicide. Cozens-Hardy MR (with whom Fletcher Moulton and Buckley LJJ agreed) stated at 252-253: "Suicide is never to be presumed. In the next place there is no evidence of suicidal tendency … The [County Court] Judge seems to have thought it was more likely that the [deceased] committed suicide than anything else. The Judge is not entitled to act upon a surmise of that nature. It is not at all a case in which there are facts from which an inference may be drawn."
The passage quoted above from Southall was the principal authority referred to by Viscount Caldecote LCJ (with whom Croom-Johnson and Cassels JJ agreed) in R v Huntbach, ex parte Lockley [1944] KB 606 at 609-610, to quash a finding of suicide and order a fresh inquest in a case involving an employed miner who had complained that the work was too heavy for him and was later found dead inside a mine apparently overcome by firedamp. Viscount Caldecote LCJ explained at 608 that: "It is not probability, however, which determines verdicts, but proved facts, and, if facts which justify a specific verdict are not proved at an inquest, there is no alternative but to return an open verdict."
In R v HM Coroner for the City of London, ex parte Barber [1975] 3 All ER 538 ("ex parte Barber"), the deceased after consuming seven pints of beer had fallen from a roof of a three storey building to his death. The Coroner subsequently ruled that there was no other explanation other than suicide as railings on the roof would prevent accidental falls. The Divisional Court quashed the Coroner's recorded finding of suicide and held that suicide must be proved by the available evidence, it cannot be presumed merely because it was a likely explanation. The then Lord Chief Justice, Lord Widgery CJ (with whom Milmo and Wien JJ agreed) said at 540: "… [P]erhaps one of the most important rules that coroners should bear in mind in cases of this class, namely that suicide must never be presumed. If a person dies a violent death, the possibility of suicide may be there for all to see, but it must not be presumed merely because it seems on the face of it to be a likely explanation. Suicide must be proved by evidence, and if it is not proved by evidence, it is the duty of the coroner not to find suicide, but to find an open verdict. I approach this case, applying a stringent test, and asking myself whether on the evidence which was given in this case any reasonable coroner could have reached the conclusion that the proper answer was suicide."
The Lord Chief Justice considered that where suicide cannot be proved by the evidence and there exist real doubts as to the cause of the deceased's death, it is the duty of the Coroner to not find suicide but instead make an open finding. A finding of anything else will be unjust to the family of the deceased. The observations made by the Lord Chief Justice suggested that an open verdict should not be interpreted as indicating that a Coroner was not doing his or her job "properly". The Lord Chief Justice further stated at 540: "I would impress upon coroners that if they find themselves compelled to return an open verdict, that is not in any sense a reflection on them. It does not suggest that they are not doing their job properly or are insufficiently perceptive. There are many many cases where there is real doubt as to the cause of death and where an open verdict is right, and where anything else is unjust to the family of the deceased."
In R v Essex Coroner ex parte Hopper (High Court, Queen's Bench Division (UK), 13 May 1988, unrep), a young man was found dead evidently from a shotgun discharged close to his head. The Coroner came to the conclusion that as the shotgun could not be discharged accidentally the deceased must have committed suicide. The Divisional Court (Parker LJ and Pill J), quoted and applied Lord Widgery CJ's principles enunciated in ex parte Barber and quashed the verdict of suicide. Pill J concluded that: "The facts and circumstances in this case did not, in my judgment, point irresistibly to the existence of a suicidal intent. The possibility that the discharge of the gun was accidental could not be excluded as a reasonable possibility."
In the present case, the parties accept that if a fresh inquest is ordered, the only verdict available to the Coroner is an open verdict. An open verdict is of importance to the plaintiff and the descendants of the deceased as it removes the stigma of a suicide verdict.
The presumption against suicide was recognised in Australia well before 1935: Mutual Life Insurance Co of New York v Moss (1906) 4 CLR 311 at 318-319 (Griffith CJ); [1906] HCA 70. In more recent times, there has been some debate as to whether the presumption continues since suicide is no longer a criminal offence: American Home Assurance Company v King [2001] NSWCA 201 at [12]-[13] (Stein JA) cf Spiratos v Australasian United Steam Navigation Co Ltd (1955) 93 CLR 317 at 320 (Dixon CJ, Webb and Fullagar JJ); [1955] HCA 39. However, that debate is not relevant to the present case, and the relevant authorities at the time of the deceased's death firmly support the Coroner's obligation to have in mind the presumption against suicide when conducting the coronial inquest in 1935. A finding of suicide could only be made if there was sufficient evidence to prove the deceased took his own life and he did so intentionally.
The plaintiff's contention that there was an "irregularity of the proceedings" or an "insufficiency of inquiry" faces the formidable hurdle arising from the depositions before the Coroner not being located, notwithstanding the best efforts of the parties.
It appears that Constable Harvey who found the deceased's body gave evidence. It is likely the evidence was in similar terms to [45] above. It is appropriate to note that there is no mention in Constable Harvey's description when finding the deceased's body lying on the bathroom floor that a door had been locked or a suicide note was found. It is highly unlikely that Constable Harvey would have omitted these important factual matters if they had been present.
On the present state of the evidence before this Court, the empty shell in the service revolver and four live cartridges found beside the body, do not assist in identifying the exact make or model of the revolver. The new evidence of Detective Sergeant Warren concerning ballistics or firearm examination at [28] above is significant as it appears unlikely that there was evidence of a ballistics examination of the service revolver at the coronial inquest. Whilst the make and model of the service revolver cannot presently be identified, Detective Sergeant Warren's evidence about the unreliability of the Webley and Scott semi-automatic pistol demonstrates that the reliability of a police service weapon could not be assumed. Before a verdict of suicide could be found, there must be no reasonable possibility of the accidental discharge of the deceased's service revolver.
The reliability and accuracy of the newspaper reports purporting to provide evidence about the deceased's ill-health, a future operation and worry about departmental examinations are uncertain. What was actually said to the Coroner and by whom is not known. Limited weight can be given to these truncated newspaper reports. It appears there was some evidence before the Coroner which suggested that the deceased may have had a reason to take his own life.
On the other hand, the affidavit evidence of the plaintiff's conversations with his mother were not before the Coroner as these conversations took place some years after the coronial inquest. This "new" evidence contradicts the newspaper reports of ill-health and worries about undertaking a departmental examination. However, the plaintiff was also told by his mother of his father's concern about an upcoming criminal trial and a revolver that had been given to her for protection. The rules of evidence do not apply to coronial proceedings and the plaintiff's evidence is relevant: Coroners Act s 58. As observed by Adam J in Decker v State Coroner of NSW (1999) 46 NSWLR 415 at 421; [1999] NSWSC 369 (quoting Hunt J in Mirror Newspapers Ltd v Waller (1985) 1 NSWLR 1): "… the coroner is not bound to observe the rules of procedure and evidence applicable to proceedings before a court of law. The need for such a departure from the rules of procedure is obvious, because an inquest or an inquiry does not have parties, and there are no pleadings, charges or indictments which define the issue to be tried."
As the NSW State Coroner pointed out this evidence is not "direct evidence". Furthermore, these are conversations from a mother to a son anxious to hear about his father's death. This evidence is of marginal weight.
It is a troubling feature of this matter, that the deceased, who was described as a committed and loving husband would intentionally take his own life when his wife was pregnant expecting their sixth child. He would also leave his family without the financial support of his police salary.
An unusual aspect of Constable Harvey's account at [45] above is that the deceased asked him to get "a pound of butter". However, Constable Harvey had previously informed the deceased that "he was going to look around the shops", so it makes little sense that the request for the purchase of the butter was made to give the deceased the opportunity to kill himself.
Another troubling feature of the circumstances surrounding the deceased's death is the speed with which the deceased was buried. His body was released for burial within 12 hours. A post-mortem examination was not conducted.
In 1935, coronial inquests were governed by the Coroners Act 1912 (NSW). The Coroner had the discretion to order a post-mortem examination under s 12 of the Coroners Act 1912. In the present case, it is not known whether the Coroner was consulted before the release of the deceased's body and his burial the next day.
The importance of post-mortem examinations in cases of death by violence or where the cause of death is questionable has been recognised for many years. William Ramsay Smith, A Manual for Coroners: Being A Guide to Coronial Inquiries and Inquests in South Australia and Throughout Australasia and in England (1904, Hussey & Gillingham) at 24, quoted Instructions to Coroners, No. 15 - Victoria: "Where there is any reason to suspect that the death attended with violence or was unnatural, or the cause is obscure, a post-mortem examination should in no circumstances be omitted … [t]he objects of [a] post-mortem examination are to determine with precision the cause of death, and to ascertain whether or not any foreign agent was employed, and the mode in which the instrument used (if any) produced the effect."
The author had earlier stated at 24 that "It would be well if post-mortem examinations could be held in all cases in which the cause of death is questionable, indeed in every case of death by violence in which an inquest is held".
Professor Duflou in his report emphasised the importance of a post-mortem examination in determining whether a death was intended or accidental. As to an accidental death, Professor Duflou relevantly stated: "… Accidental wounds such as those caused during the cleaning of a weapon can be on any accessible part of the body, would generally be single shots, and without indication of contact or near-contact of the muzzle against the body at the time of the shooting. Exit wounds, if present, are of value also because they can provide information on trajectory, and the nature of the bullet."
Without a post-mortem examination of the deceased, the Coroner did not have the benefit of knowing whether there was an indication of contact or near contact of the muzzle of the deceased's service revolver against his body at the time he was shot.
This was a case where death was attended with violence and the cause of death, whether by the intentional or accidental discharge of the service revolver was obscure. The circumstances surrounding the death of the deceased, a serving police officer, required a post-mortem examination. The absence of a post-mortem examination, the unlikelihood of a ballistics examination of the firearm; the possible unreliability of that firearm; the lack of a suicide note; the deceased's family circumstances including the pregnancy of his wife and to a lesser extent the plaintiff's conversations with his mother when all considered in combination lead me to conclude that there is a real possibility that the Coroner's finding was erroneous. There is a real possibility that the evidence was insufficient to prove that the deceased intentionally took his own life. There is a real possibility that an open verdict should have been found as accidental death could neither be excluded nor found.
I am satisfied that the plaintiff has established the "insufficiency" of the coronial inquest in 1935: s 85(d) of the Coroners Act.
Other considerations are to be taken into account before concluding that it is "necessary or desirable" in the interests of justice to quash the Coroner's verdict and order a new inquest. The Coroner's verdict was reached almost 90 years ago and there is undoubtedly a public interest in not investigating verdicts of such antiquity. The principle of finality gains additional strength when many years have elapsed since the finding was made.
Another consideration is that the NSW State Coroner will not have the coronial inquest depositions and a fresh inquiry is likely to be limited to the material placed before this Court.
Despite its antiquity, this case is exceptional. There is clear evidence of the insufficiency of the coronial inquest.
A reasonable member of the public would without hesitation accept that it is in the interests of justice to overturn an erroneous finding that a serving police officer intentionally took his own life even though that event occurred long ago. Both the legitimate concerns of the descendants of the deceased and the interests of the public in ensuring that error is corrected outweighs the public interest in sustaining the finality of coronial proceedings. The limited material available does not alter the fact that the interests of justice requires a new inquest.
The second defendant's submission that it is not possible to know what the Court is effectively being asked to quash (see [50] above) has no merit. It is the finding of the Coroner on 29 April 1935 referred to at [2] above.

Nash v State Coroner of New South Wales

At a glance

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Catchwords

Judgment (19 paragraphs)

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Legislation Cited (4)

Cases Cited (24)