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[2026] ACTSC 134
Supreme Court of the ACT
2026-05-08
Kelly AJ
Original judgment source is linked above.
Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: ND v Coroner’s Court of the Australian Capital Territory Citation: [2026] ACTSC 134 Hearing Dates: 17, 21 April, 1 May 2026 Decision Date: 8 May 2026 Before: Kelly AJ Decision: (1) The application filed by ND on 14 April 2026 is dismissed. (2) The interlocutory application filed by ND is dismissed. Catchwords: CIVIL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Coroners Court – Judicial review – Merits review – Where the applicant requested a second post-mortem examination Legislation Cited: Coroners Act 1997 (ACT), ss 13(1), 15(3), 17, 17A, 20, 23, 24, 34, 51, 52, 63, 64, Dictionary Court Procedures Act 2004 (ACT), s 27 Court Procedures Rules 2006, r 3566 Parties: ND (a pseudonym) (Applicant) Coroner’s Court of the Australian Capital Territory (Respondent) Attorney-General of the Australian Capital Territory (Intervenor) Representation: Counsel Self-represented (Applicant) K Musgrove (Intervenor) Solicitors Self-represented (Applicant) ACT Government Solicitors (Intervenor) File Number: SC 144 of 2026 KELLY AJ: Procedural History
ND, the applicant, filed an application in this court on 14 April 2026 seeking judicial review of decisions made by the Coroner, Mr Archer, and seeking other orders in the nature of prerogative relief.
The matter first came before me for a hearing on 17 April 2026. Ms Musgrove appeared for the Attorney-General of the ACT, who intervened in the proceeding pursuant to s 27 of the Court Procedures Act 2004 (ACT).
On that date, Ms Musgrove made submissions inviting the court to dismiss the application for judicial review on two bases. First, that there is no proper basis for the application, because the orders made in the Coroner’s Court do not affect the legal rights of the applicant, and second, because the applicant was, in effect, seeking merits review of the Coroner’s Court decisions made to date.
The intervenor did not object to the matter being adjourned for a short period of time on the basis that the applicant, who is unrepresented, needed further time to consider the submissions made at the hearing on 17 April. Accordingly, the matter was adjourned to 1 May 2026 for the applicant to consider his position and, if desired, to seek legal advice.
The matter came before me again on 21 April 2026, as the applicant filed an interlocutory application on 20 April seeking injunctive relief as a matter of urgency. The injunctive relief the applicant sought is as follows: 1. An order that the body of [the daughter] (born [date], died [date]), currently held at [funeral home], Canberra, be preserved and not cremated, buried or otherwise disposed of pending the determination of SC 144/2026 or further order of this Court. 2. An order directing [funeral home], Canberra … to continue holding the body of [the daughter] pending further orders of this Court. 3. An order that all physical evidence associated with the death of [the daughter] – including clothing, rope or ligature, biological samples, mobile phone and extracted data, autopsy photographs, and chain of custody records – be preserved and not destroyed or disposed of pending the determination of SC144/2026 or further order of this Court.
On 21 April 2026, Ms Musgrove attended as amicus curae. On that date, I refused to make any order other than to adjourn the hearing of the interlocutory application to be heard on the same date as the original application, being 1 May 2026.
In the meantime, both parties filed further written submissions, the applicant’s submissions being filed on 30 April 2026. Those submissions included a further affidavit from the applicant and further submissions seeking orders which go beyond the orders originally sought the application filed on 14 April 2026. The documents filed by the applicant only one day before the hearing consisted of over 150 pages, some of which were only faintly legible. I therefore gave the intervenor further time to supplement the oral submissions made on 1 May 2026.
In the material filed on 30 April 2026 and in his oral submissions on 1 May 2026, the applicant sought further orders as follows: Order 1: Preservation of the body of [the daughter] at [funeral home], Canberra, pending determination of this application or further order of this Court. Order 2: Preservation of all physical evidence including clothing, rope, biological samples, phone, exhibits and autopsy photographs. Order 3: Certiorari quashing the Coroner’s decision of 1 April 2026 refusing to order a further post-mortem examination. Order 4: Mandamus directing a further post-mortem examination by an independent pathologist, including internal examination of the neck, examination of the laryngeal structures, examination of the uterus, and a full toxicological re-analysis with biological source identification. Order 5: Mandamus directing reassignment of the coronial inquiry to an independent coroner. Order 6: Mandamus directing referral of the police investigation to an independent officer separate from Senior Constable Mitchell Mann. Order 7: Mandamus directing review by an independent Forensic Medical Officer of all post-mortem findings including the self-harm assertion, the asymmetric ligature pattern, the laryngeal prominence observation, and the physiological sequence of warmth and rigor mortis. Order 8: Order appointing an independent forensic linguist to compare [the daughter’s] verified SMS corpus the 3 August 2025 letter, and the 10:30 AM message of 15 March 2026, and to provide a report on authorship of the 10:30 AM message. Order 9: Mandamus directing full disclosure of all investigation reports, post-mortem reports, toxicology results including specific tests and body parts sampled, autopsy photographs taken before preparation of the body for viewing, FMO report, pregnancy and lung examination results, evidence seizure log, CM’s raw interview notes and audio recordings from 10 March 2026, chain of custody records for [the daughter’s] phone, and the identity of the sender of the 10:30 AM message and of the unidentified person at 10:54 AM on 15 March 2026. Order 10: Declaration that the Plaintiff as Senior Next-of-Kin was denied procedural fairness in the coronial process. Order 11: Declaration that the Plaintiff as Senior Next-of-Kin was not consulted about the objection to internal examination and that the absence of internal examination has compromised the reliability of the post-mortem findings. Order 12: Declaration that the Plaintiff as Senior Next-of-Kin has the right to access all investigation reports, FMO reports, autopsy photographs, toxicology results, and post-mortem reports obtained in the coronial inquiry. Order 13: An order directing return of all physical materials, exhibits, biological samples, clothing, the rope, the mobile telephone, and all evidence in custody to the Plaintiff as Senior Next-of-Kin within 14 days of final determination of all proceedings (including any appeal) and completion of all forensic examinations. Order 14: An explicit stay of any release of the body of [the daughter] for disposal, separate from the preservation order at Order 1, providing a specific procedural shield pending determination of this application and any appeal. Order 15: Leave to issue subpoenas for production of: (a) Telstra and Optus carrier records for the mobile telephone of [the daughter], and for the mobile telephone of the mother, for the period 1 January 2026 to 15 March 2026 inclusive – including all SMS/MMS message logs and delivery receipts (with timestamps and sender/recipient identifiers), all call detail records (incoming, outgoing, missed) with timestamps and cell-site information, all data session logs and IP allocation records, all voicemail delivery logs, all device custody or handover logs, all subscriber account notes and billing records, and any records of lawful access requests, preservation requests, or disclosures made to third parties; (b) Registry email timestamps and chain-of-custody records demonstrating when the police report was actually provided to the Plaintiff; (c) Forensic device extraction reports and complete chain-of-custody logs for [the daughter’s] mobile telephone covering the period from seizure on 15 March 2026 through to the date of these proceedings; (d) Pre-preparation autopsy photographs taken in clinical conditions before the body was prepared for viewing; (e) Records of any communications, instructions, or notes relating to or arising from the witness interview with Vanessa on 10 January 2026 that were transmitted to the mother, legal advisers, court officers, or third parties between 10 January 2026 and 15 March 2026, including any communications that bear on [the daughter] ceasing contact with the Plaintiff after 27 February 2026. Order 16: Costs reserved.
The applicant also sought an urgent order, in the event of this court dismissing his application, that the body of his daughter not be released for cremation or any other disposal pending the applicant’s filing and determination of any application for special leave to appeal to the High Court of Australia and that all physical evidence, forensic materials, biological samples, exhibits and investigative materials not be disposed of, destroyed or returned pending the conclusion of the appellate process.
At the hearing on 1 May 2026, the applicant made oral submissions submitting that his application is competent because it challenges a final refusal of the Coroner under s 23(1)(e) of the Coroners Act 1997 (ACT) (Coroners Act) to order a further post-mortem by another doctor. The applicant submitted that this was the jurisdictional error relied on for the relief sought.
The applicant also submitted that the Coroner failed to comply with other provisions of the Coroners Act, including s 20 of the Coroners Act.
Background Relevant to this Application
The relevant background was summarised in the written submissions of the intervenor filed on 22 April 2026. As those submissions accurately set out the facts and circumstances which gave rise to this application, it is convenient to substantially reproduce them here.
The applicant is the father of two daughters. There appear to have been protracted family law proceedings regarding the children. The full extent of the current family court orders are not before this court, although the applicant has indicated that both children were living with their mother at the relevant time.
In the early hours of 15 March 2026, the daughter was found hanging by a rope around her neck in the stairwell at the apartment complex where she resided with her mother and sister. The daughter was cut down and resuscitation attempts were commenced by civilians who initially located her. 000 was called and ACT Ambulance Service and ACT Fire and Rescue attended, and resuscitation attempts continued. At approximately 2:53am, police attended and observed resuscitation attempts. At 2:56am, resuscitation attempts ceased as the daughter could not be revived. All of this information is taken from the Police Coronial Report.
At approximately 3:55am, a Forensics Medical Officer attended the scene with AFP Forensics and Investigators. The daughter’s body was collected by the ACT Government-contracted funeral service provider.
A post-mortem examination was carried out on the daughter. On 18 March 2026, pursuant to s 15(3) of the Coroners Act, the Coroner authorised the release of the daughter’s body as he was then satisfied that there was no reason why the body should not be buried or cremated. The daughter’s body was collected by the funeral home and prepared for viewing.
On 31 March and 1 April 2026, the applicant wrote to the Coroner’s Court requesting a stay of cremation and second post-mortem examination.
On 1 April 2026, the Coroner wrote to the applicant setting out his determination, which effectively stated that a further post-mortem was not in the public interest or interests of justice as a thorough post-mortem examination had taken place and further examination was unlikely to yield further evidence. The Coroner’s letter set out the various considerations of the Coroner and the reasons for the decision, as the Coroner was required to do by s 23(2) of the Coroners Act, and informed the applicant he might apply to the Chief Coroner requesting a reconsideration of the decision.
On 1 April 2026, the applicant wrote to the Acting Chief Coroner and requested a review of the Coroner’s decision in accordance with s 24 of the Coroners Act.
The Acting Chief Coroner determined that the applicant, as father of the daughter, had sufficient interest in the inquiry into the daughter’s death and as such, requested the Coroner reconsider his decision.
On 2 April 2026, the applicant provided a ‘Statement of Systemic Institutional Failures’ to the Coroner. The daughter’s cremation, which had been scheduled for 2 April 2026, was halted at the insistence of the applicant.
By letter to the Acting Chief Coroner on 7 April 2026, the Coroner confirmed his decision not to order a further post-mortem examination and explained his reasons for that decision. The Coroner noted he had been provided with and considered the emails and affidavit of the applicant dated 2 April 2026. The Coroner also noted the matters raised by the applicant, and that those matters, along with any other evidence the applicant wishes to provide, can be considered by the Coroner in making the findings required under s 52 of the Coroners Act.
On 8 April 2026, the Acting Chief Coroner wrote to the applicant, informing him of the process undertaken and the reconsideration decision made by the Coroner, as well as annexing the Coroner’s letter dated 7 April 2026. The applicant was separately provided with a redacted copy of the Police Coronial Report on 10 April 2026.
At the present time, it is understood that the Coronial inquest process is ongoing and the Coroner has made no decision as to whether a hearing will be conducted under s 34 of the Coroners Act.
On 14 April 2026, the applicant filed the application for judicial review and other orders.
Discussion
It is evident from the voluminous amount of material filed by the applicant in this matter that his complaints that the Coroner has, thus far, wrongly refused to perform a number of statutory duties, failed to hand over certain documents he is required to, and has acted with bias, are based on the applicant’s misconceptions as to the proper role and function of a Coroner under the Coroners Act.
Many of the orders which the applicant seeks are in the nature of orders for certiorari, mandamus and declarations. As such, it is necessary for the applicant to establish either jurisdictional error, error on the face of the record, or that he has been afforded a lack of procedural fairness in respect of decisions made by the Coroner and as to which he has legal rights.
I have set out in full in [8] all of the orders which the applicant seeks. For the reasons which follow, I am of the view that the applicant has not established any proper basis to seek any of the orders set out in his application.
The applicant’s complaints about the Coroner’s decision of 1 April 2026 to refuse to order a further post-mortem examination are all based on a misconception as to the requirements set out in ss 23-24 of the Coroners Act, together with ss 17-17A and 20 of the Coroners Act. Those sections relevantly state: 17 Assistance to State and other Territory coroners (1) A coroner may exercise any of the coroner’s powers under this Act to assist a coroner of a State or another Territory in relation to a death in that State or other Territory. (2) If the Attorney-General requests, a coroner must exercise any of the coroner’s powers under this Act to assist a coroner of a State or another Territory in relation to a death in that State or other Territory. 17A Considerations before exercising function or making decision In exercising a function or making a decision in relation to an inquest, a coroner must have regard to the desirability of minimising the causing of distress or offence to people who, because of their cultural attitudes or spiritual beliefs, could reasonably be expected to be distressed or offended by the exercise of the function or decision. … 20 Dispensing with post-mortem examination (1) A coroner may dispense with a post-mortem examination of a body if the coroner, after considering any medical records or other information given to the coroner relating to the death, is satisfied that the manner and cause of death are sufficiently disclosed. (2) A coroner may dispense with a post-mortem examination of a body if, on the request of a member of the immediate family of the deceased or a representative of that person, the coroner is satisfied that the manner and cause of death are sufficiently disclosed. … 23 Consideration of immediate family (1) A coroner holding an inquest into a death (other than a death in care or death in custody) may, if requested to do so by a member of the immediate family of the deceased or a representative of that person, authorise— (a) the viewing of the body of the deceased by the member or a representative of that member; or (b) an inspection of the scene of the death by the member or a representative of that member; or (c) an inspection of the scene of an event which, in the opinion of the coroner, may have resulted in the death of the person; or (d) the member or a representative of that member to be present at any post-mortem examination conducted on the body; or (e) the same or another doctor to conduct a further post-mortem examination on the body. (2) If a coroner refuses to give an authorisation under subsection (1) on the ground that the coroner believes that it would not be in the public interest or the interests of justice to do so, the coroner must give to the person who made the request written notice of the refusal and an explanation for the refusal. (3) A notice under subsection (2) must include a statement that the person who made the request may apply to the Chief Coroner requesting that the coroner who made the decision reconsider the decision.
24 Reconsideration of decisions (1) Where— (a) a coroner refuses to give an authorisation under section 23 (1); and (b) the Chief Coroner receives a written application requesting that the coroner who refused to give the authorisation be requested to reconsider the decision; the Chief Coroner must, if satisfied that the applicant has sufficient interest in the decision, request the coroner to whom the application relates to reconsider the decision. (2) A request must set out the grounds on which the person relies. (3) The Chief Coroner must notify the applicant of any comments of a coroner in response to the request.
It is evident from the correspondence between the Coroner and the applicant that all of the requirements of those sections, so far as any of them were applicable, have been complied with. The emails and submissions of the applicant dated 2 April 2026 were considered during the reconsideration process and the Coroner acknowledged having done so.
With respect to the complaint that the Coroner has failed to comply with s 17 of the Coroners Act, that section refers to assistance which the ACT can provide to or seek from Coroners in other jurisdictions and has no application in the current circumstances.
It is section 13(1) of the Coroners Act which creates a positive obligation for the Coroner to hold an inquest if the relevant circumstances prescribed exist. It is plainly obvious that the Coroner is currently complying with this statutory obligation by undertaking the ongoing inquest. It is relevant to note that, at this stage, the inquest into the death of the daughter is still at a very early stage of proceedings.
As to the complaint that the Coroner has failed to comply with the requirements of s 20 of the Coroners Act, it is evident that Professor Duflou has already undertaken a post-mortem and, as a result, this section has no relevance either.
For present purposes, I note that ‘post-mortem examination’ is defined in the dictionary to the Coroners Act as follows: post-mortem examination means the inspection of the body to determine the cause of death and may, but need not, include dissection of the body
The applicant’s assertion that an internal neck examination is mandated in every case following a known or suspected hanging appears to have been made on the basis of guidelines said to have been issued by the Royal College of Pathologists in the United Kingdom. There is no evidence before me that these guidelines have any relevance to post-mortems conducted in the ACT. Given the definition of post-mortem above, it is plain to observe that no such requirement is mandated by the Coroners Act.
As to the complaints about the Coroner’s failure to comply with ss 23 and 24 of the Coroners Act, the Coroner’s decision not to order a further post-mortem was made in the exercise of the discretion available to the Coroner pursuant to s 23.
The emails and submissions made by the applicant on 2 April 2026 were obviously considered during the reconsideration process and were acknowledged by the Coroner as having been considered. Contrary to the applicant’s submissions, the requirements of ss 23 and 24 of the Coroners Act were complied with. In his letter dated 7 April 2026, the Coroner set out the reasons for decision. That letter was annexed to the material sent to the applicant by the Acting Chief Coroner on 8 April 2026. There was no lack of procedural fairness in making that decision. The applicant has not established that there was any error in the relevant sense in the exercise of the discretion which the Coroner had under s 23(1).
As to the complaints made by the applicant that s 51 of the Coroners Act grants him the right to access documents the Coroner intends to consider, s 51 relevantly provides: 51 Access to documents etc A coroner may make available to any person with sufficient interest in an inquest or inquiry— (a) any document or thing that is produced at, or the coroner intends to consider in relation to, an inquest or inquiry; and (b) any evidence relevant to the inquest or inquiry to which the coroner intends to have regard.
While s 51 provides the Coroner with a discretion to make available documents, evidence, or things relevant to an inquiry, there is no mandatory requirement to provide that material. This is particularly so in circumstances such as this where the inquest is still at a very early stage of proceedings.
The obligation in s 52 of the Coroners Act is upon the Coroner holding an inquest to determine, if possible, the manner and cause of death and, if appropriate, state whether the issues of public safety arise and/or make comments about matters of the administration of justice.
None of those provisions give the applicant any legal rights. In the same vein, there is no requirement at this stage of the inquest for the Coroner to make full written disclosure to the applicant of the complete unredacted police investigation report, including any preliminary and final versions, all toxicology results, all stomach content examination results, autopsy photographs, the FMO report or the full post-mortem report of Professor Duflou.
It is s 64 of the Coroners Act which requires the Coroner, on the request of a family member, to make available a copy of the findings. No findings have yet been made by the Coroner and, therefore, that section has no application at this stage and there can be no breach of the obligation under that section.
In relation to the many further complaints made by the applicant, I accept the intervenor’s submissions that those complaints are either premature or misconceived.
For example, there is no basis to make any order compelling the Coroner to consider the specific evidence and the applicant’s affidavit of 2 April 2026 because it is plain that the Coroner did so. There is no legislative requirement for the Coroner to reassign the inquiry to an independent Coroner as there has been no evidence to support any allegation of bias or apprehension of bias on the part of the Coroner. The police report has already been provided to the applicant and, in my view, there is no proper basis for directing the investigation by the police to an independent police officer other than Senior Constable Mann. Once again, it is obvious from the material provided that the chief police officer has already provided the assistance of a police officer under s 63 of the Coroners Act. However, absent of proof of bias or malpractice of which there is none, there is no proper basis to refer the matter to another police officer. Intervenor’s Submissions
Counsel for the intervenor has invited the court to dismiss this application for judicial review on the basis of r 3566 of the Court Procedures Rules 2006. That rule relevantly states: 3566 Judicial review—power of the court to stay or dismiss applications in certain circumstances (1) The court may, by order, stay or dismiss a judicial review application, or a claim for relief in a judicial review application, if the court considers that— (a) it would be inappropriate— (i) for the proceeding in relation to the application or claim to be continued; or (ii) to grant the application or claim (including, for an application for a statutory order of review, because the Judicial Review Act, section 8 (2) (b) (Effect of Act on other rights) applies); or (b) the application is incompetent; or (c) no reasonable basis for the application or claim is disclosed; or (d) the application or claim is frivolous or vexatious; or (e) the application or claim is an abuse of the court’s process. Note The registrar may also reject a document that is filed if it does not comply with these rules (see r 6140 (Rejecting documents—noncompliance with rules etc) or if it is an abuse of the court’s process or is frivolous or vexatious (see r 6142 (Rejecting documents— abuse of process etc)). (2) A power of the court under this rule may be exercised at any time in the relevant proceeding but, in relation to the power to dismiss an application, the court must try to ensure that any exercise of the power happens at the earliest appropriate time. (3) The court may make an order under this rule on application by a party to the proceeding or on its own initiative. Note Pt 6.2 (Applications in proceedings) applies to an application for an order. (4) The court may receive evidence on the hearing of an application for an order under this rule.
I accept that the legal principles applicable in relation to an application by way of judicial review and the further application for injunctive relief are as set out in the submissions of the intervenor filed on22 April 2026 at [17] – [42]. In applying those principles to my consideration of the material filed by the applicant, I have accepted most of the submissions made by the intervenor. I accept the submission that the applicant has not established that he has been denied any procedural fairness in the Coronial process. Part of the applicant’s basis for his claim that he was denied procedural fairness was that he, as the Senior Next-of-Kin, was not consulted about the objection to the internal examination recorded in the police investigation report. For the reasons I have already explained, s 51 of the Coroners Act does not confer on the applicant any rights, whether as senior next of kin or in any other capacity, and given the very early stage of the inquest process at this time much of that material has not yet been finalised. I also note that ‘Senior Next-of-Kin’ is not a title, role or term defined nor used in the Coroners Act.
Much of the further affidavit material which was filed by the applicant on 30 April 2026 is irrelevant to the application before me and does not assist the applicant’s application.
In these circumstances, I find that there is no reasonable basis for the application for judicial review and, as the respondent correctly submitted, the application is incompetent. Further, although the applicant continues to maintain that he is not seeking a review of the Coroner’s decisions on the merits, that is exactly what he is seeking.
It follows from this finding that there is no proper basis for the court to grant the injunctive relief sought by the applicant on the basis of his application dated 19 April 2026 as there is no serious question to be tried and the balance of convenience does not favour granting any relief.
I note, by way of reinforcement of that conclusion, that the Coroner’s certificate pursuant to s 15(3) was granted on 18 March 2026 and the body was released to the funeral home. The funeral home has prepared the body for viewing.
The applicant at no stage served notice on the other interested parties of the application for injunctive relief, namely the mother and sister. I have no evidence before me of whether they were ever served or what their attitudes towards these applications are. As the intervenor submitted, the emotional and psychological impact of these proceedings on the other family members is not known, but I infer that the mother must be aware of these proceedings in light of the fact that, notwithstanding the Coroner’s certificate, the body apparently remains in a funeral home somewhere.
There is no evidence before me as to what the current state of decomposition is with regard to the body. In these circumstances, as the Coroner himself noted on 1 April 2026, the body would be unlikely to provide further information relevant to the investigation and the lapse of time between then and only reinforces the Coroner’s conclusion on 23 April 2026.
The applicant’s stated intention to apply for special leave to the High Court of Australia does not shift the balance of convenience towards granting any injunction at this stage given the lapse of time between the release of the body and the fact that the state of decomposition is unknown.
I have reviewed the documents that the applicant purported to file on 7 May 2026. Though I note that this material has not been formally filed, I have reviewed it and it does not change my view on the matters set out above. In fact, that material only reinforces that these proceedings must be brought to an end and the family must be permitted to grieve the death of the daughter as they see fit.
Orders
I certify that the preceding fifty-five [55] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Acting Justice Kelly.
Associate: Date: 8 May 2026
ND
Coroner’s Court of the Australian Capital Territory