Plaintiff v Defendant

2 Ms Chiotelis died on 17 May 2007 in a motor vehicle collision at Punt Road, Prahran. Ms Chiotelis was seated in the front passenger seat of the vehicle while her friend, Emre Basturk, who also died in the collision, was the driver of the vehicle.

3 On the night of 16 May 2007, Ms Chiotelis and Mr Basturk attended Sabrina Hassen's birthday dinner at a South Yarra restaurant followed by drinks at the Lotus Bar, also in South Yarra. Ms Chiotelis and Mr Basturk left the event together in Mr Basturk's vehicle sometime after midnight on 17 May 2007. Ms Hassen and another friend of Ms Chiotelis', Roxana Tcaciuc, arranged to meet Ms Chiotelis and Mr Basturk at Mr Basturk's house in St Kilda. At approximately 12.15am, as Mr Basturk was driving along Punt Road, he lost control of his vehicle and collided head on with a power pole. The high speed at which he was driving caused the vehicle to break up.

4 The first members of the emergency services to arrive at the scene of the accident were Senior Constable Asenjo and Constable Jo Bailey. They arrived at 12.42am and both observed, in their statements, that Mr Basturk was still breathing for about 2 to 3 minutes following their arrival. Another witness, Benjamin James also observed that Mr Basturk was breathing shortly after the collision. Senior Constable Asenjo says that he did not see Ms Chiotelis breathing and he formed the opinion that she was dead. The witness, Benjamin James says that he did not see Ms Chiotelis move and did not know if she was alive or dead. The Metropolitan Ambulance Service ("MAS") arrived at 12.45a.m and they ascertained that Ms Chiotelis was dead and reported as such in their Patient Care Report.

5 The vehicle was covered with sheets supplied by the MAS. Around the time the sheets were being pulled over, Ms Hassen and Ms Tcaciuc, who had suspected something amiss when Mr Basturk and Ms Chiotelis did not show up at their meeting place, arrived at the scene of the accident. By this time the MAS had departed. Ms Tcaciuc deposes that this was within 10 minutes of the accident occurring. The Plaintiff's case is mainly based on what occurs following Ms Hassen's arrival at the scene. In Ms Hassen's statement, she says that she 'saw Marie [Ms Chiotelis] move in her seat as [she] approached.' Ms Hassen said that she informed Senior Constable Asenjo that she saw Ms Chiotelis move, a conversation that Ms Tcaciuc says she was also a party to, but he did nothing.

6 Ms Hassen and Ms Tcaciuc remained at the scene of the accident for approximately 4 hours after they arrived. They say that they noticed the policemen lifting the white sheets covering Ms Chiotelis and Mr Basturk on a number of occasions. Both found this odd. Ms Tcaciuc also observed the policemen shining torches into the vehicle.

7 An autopsy was conducted the day following Ms Chiotlelis' death. The report states that the cause of death was head injuries, including fractures of the skull base and small areas of haemorrhage within the brain and brainstem. The reports states that these injuries are consistent with injuries sustained in a high speed motor vehicle accident.

8 On 19 May 2007, the Plaintiff met with Senior Constable Asenjo and Sergeant Dean Robinson. The Plaintiff says that he was told by the two policemen that Ms Chiotelis' neck broke, that she did not suffer and that she died instantly. He was also told by them that Mr Basturk was alive for approximately 40 minutes following the accident and that Mr Basturk suffered before he died. The Plaintiff's wife, Sophie Chrisanthopoulos, supports this version of events.

9 On 12 September 2008, the Plaintiff wrote to the Defendant requesting that an inquest be held into his daughter's death. A brief for inquest was prepared by Senior Constable Asenjo.

10 On 20 January 2009, the Principal Registrar of the Coroner's Court wrote to the Plaintiff advising him that his request for an inquest into his daughter's death had been refused by Coroner Hendtlass. The letter was in the following terms:

The Coroners Act 1985 requires the coroner to 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... I have now obtained all the information I require to fulfil my statutory obligations... In these circumstances, an inquest will not assist me any further in determining the facts surrounding Ms Chiotelis' death. Therefore, I have decided that it is not desirable or in the public interest to hold an Inquest as part of my investigation of Ms Chiotelis' death and I intend to complete her Investigation by way of a Chambers Finding.

11 On 27 February 2009, Coroner Hendtlass made chambers findings in relation to the death of Ms Chiotelis without holding an inquest. The Plaintiff was informed that the investigation into the death of his daughter had been completed.

12 On 10 March 2009, the Plaintiff commenced this proceeding by way of originating motion.

13 Two preliminary issues were raised by the Defendant. First, the Defendant submits that in Rouf v Johnstone,[1] Winneke P (Charles and Buchanan JJA agreeing) said that notice of an application under s 18 of the Act should be given to persons who are most affected by the application. Winneke P said that those persons were 'persons who effectively have been accused by the [person bringing the application] of being implicated in the death of the deceased.'[2] The material filed in support of the Plaintiff's application, the Defendant submits, raises matters concerning the conduct of the Victoria Police, the MAS and the conduct of Mr Basturk. Acting on Rouf v Johnstone,[3] the Defendant has notified Victoria Police, the MAS and Mr Basturk's family.[4] Victoria Police, the MAS and Mr Basturk's family have not participated in the proceeding.

14 Secondly, the Defendant has not made submissions on the merits of the order sought by the Plaintiff. The Defendant bases this approach on the High Court's findings in R v Australian Broadcasting Tribunal; Ex parte Hardiman,[5] that in cases involving tribunals, Defence submissions should be limited to the powers and procedures of the tribunal.[6] The principle was adopted in Boyce v Munro,[7] by Ormiston and Batt JJA, who said that the coroner could not make submissions on the merits of the application in view that an order for re-opening the inquest might be made.[8]

15 I now turn to the legislation and case law which applies to these proceedings. The relevant provisions of the Act in relation to these proceedings are ss 3, 15, 17, 18 and 19.

16 Section 15 of the Act gives the coroner jurisdiction to investigate deaths that are or may be 'reportable deaths'. Section 15(1) and (2) provides:

15 Jurisdiction of coroners to investigate a death

(1) A coroner has jurisdiction to investigate a death if it appears to the coroner that the death is or may be a reportable death.

(2) Unless section 15(2A) applies, a coroner to whom a death is reported must, if it appears to the coroner that the death is or may be a reportable death, investigate it or report it to the State Coroner.

Section 3(1) of the Act defines 'reportable death' -

reportable death means a death -

(a) where the body is in Victoria; or

(b) that occurred in Victoria; or

(c) the cause of which occurred in Victoria; or

(d) of a person who ordinarily resided in Victoria at the time of death - being a death -

(e) that appears to have been unexpected, unnatural or violent or to have resulted, directly or indirectly, from accident or injury; or

...

17 Section 17 of the Act provides:

17 Jurisdiction of coroner to hold inquest into a death

(1) A coroner who has jurisdiction to investigate a death must hold an inquest if the body is in Victoria or it appears to the coroner that the death, or the cause of death, occurred in Victoria and -

(a) the coroner suspects homicide; or

(b) the deceased was immediately before death a person held in care; or

(c) the identity of the deceased is not known; or

(d) the death occurred in prescribed circumstances; or

(e) the Attorney-General directs; or

(f) the State Coroner directs.

(2) A coroner who has jurisdiction to investigate a death may hold an inquest if the coroner believes it is desirable

...

18 Section 18(1) of the Act allows the coroner to hold an inquest into the death if requested to do so. The section also allows the coroner to refuse the request. Section 18 provides:

18 Application for inquest into death

(1) If a person asks a coroner to hold an inquest into a death which a coroner has jurisdiction to investigate, the coroner may -

(a) hold an inquest or ask another coroner to do so; or

(b) refuse the request and give reasons in writing for the refusal to the person and to the State Coroner within a reasonable time after receiving the request.

(2) If, after the expiry of 3 months from the date a person requests a coroner to hold an inquest into a death, the coroner has not -

(a) agreed to hold the inquest or asked another coroner to do so; or

(b) refused the request and given his or her reasons in writing to the person and the State Coroner -

the person may apply to the Supreme Court for an order that an inquest be held.

(3) The Supreme Court may make an order that an inquest be held if it is satisfied that it is necessary or desirable in the interests of justice.

19 Section 19 of the Act lists the findings the coroner must make (if possible) in an investigation:

19 Findings and comments of coroner

(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.

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

20 The Plaintiff seeks an order pursuant to ss 18(2) or 18(3) of the Act which requires me to consider whether such an order is 'necessary or desirable in the interests of justice.' There is some case law on the interpretation of ss 18(2) or 18(3). No test, however, has been laid down on their application, nor has there been a clear statement of what principles apply. The main cases that provide guidance are Clancy v West,[9] Rouf v Graeme Douglas Johnstone (Who is sued in his capacity as the State Coroner[10] and Domaszewicz v The State Coroner.[11] I will briefly summarise the relevant legal principles in those cases.

21 In Clancy v West[12] the Court of Appeal considered an appeal against a refusal by a judge of the Trial Division for an order to hold an inquest pursuant to s 18 of the Act. Tadgell JA (with whom Ormiston and Charles JJA agreed) considered the Norris Report, a report made in 1980 by Sir John Norris, a former judge of the Supreme Court, on the law relating to coroners which formed the basis of the law codified in the Coroners Act. Tadgell JA said that the Act did not require that an inquest be held in all cases in which the coroner had jurisdiction to hold one. His Honour said:

... it was notably recommended in the Norris Report that, save in cases where an inquest is made mandatory, a coroner should have an absolute discretion as to the manner of discharging the duty to investigate a reported death - whether by investigation short of a formal inquest, or by inquest. That recommendation was implemented by s 17(2).[13]

... s 17(2) plainly gives to a coroner who has jurisdiction to investigate a death a discretion not to hold an inquest if s 17(1) does not apply and the coroner believes it is not desirable to hold one. A more absolute discretion conferred upon a coroner to hold or not to hold an inquest in a case not falling within subs (1) of s 17 could scarcely be formulated.[14]

22 Tadgell JA found that the jurisdiction of the Supreme Court to order that an inquest be held was one which should be exercised 'sparingly'[15] and that the occasion for the court's exercise of jurisdiction under s 18(3) would be 'rare'.[16] His Honour also said that it was reasonable that the coroner:

... when deciding whether to hold an inquest, should consider the relative costs of holding one and doing without one, duly weighing the benefits (if any) which an inquest might produce against the disadvantages (if any) which investigation (or further investigation) short of an inquest might entail.[17]

23 In Rouf v Graeme Douglas Johnstone (Who is sued in his capacity as the State Coroner,[18] Warren J considered Clancy v West[19] with approval and said that when considering an application under s 18 of the Act, the Plaintiff's application must be subjected to the most severe scrutiny.[20] Her Honour was of the opinion that there would need to be 'compelling evidence' to warrant an intervention by the court under s 18(3).[21]

24 In Domaszewicz v The State Coroner,[22] Ashley J said that the coroner's functions, whether or not a reportable death leads to an investigation without inquest or to an investigation which culminates in an inquest, is to make findings.[23] His Honour also said:

The sense of s 18(2) is that an application to this court will address the circumstances extant at the time of the s 18(1) request. Those circumstances, no doubt, will have weighed in the refusal to hold an inquest. In the event that circumstances tending in favour of an inquest being held were later to emerge, I cannot see that it would subvert s 18(2) to read s 18(1) to permit a further request. That is not to say that s 18(1) would authorise a series of requests for an inquest made to different coroners in a period within which the known facts and evidence were the same. I wish to make it very clear that such a course would be impermissible.[24]

25 Ashley J concluded that there was nothing stopping more than one request being made under s 18(1) and there was nothing preventing the coroner from revisiting a matter, after determining not to hold an inquest. The coroner, it was held, should be authorised to consider and determine again whether an inquest should be held. Ashley J found that it was 'wrong to conclude that the jurisdiction to hold an inquest was thereby exhausted ...'.[25]

26 Based on the decisions above, the following principles apply in this case:

• The discretion of the coroner to decide whether or not to hold an inquest is wide and the jurisdiction of the court to order that an inquest be held under s 18 should be exercised sparingly and only where there is compelling evidence: Clancy v West[26] and Rouf v Graeme Douglas Johnstone (Who is sued in his capacity as the State Coroner.[27]

• The Plaintiff's application must be subjected to much scrutiny: Rouf v Graeme Douglas Johnstone (Who is sued in his capacity as the State Coroner).[28]

• The coroner's functions, whether or not a reportable death leads to an investigation without inquest or to an investigation which culminates in an inquest, is to make the findings specified in s 19 of the Act: Domaszewicz v The State Coroner.[29]

• The court, when considering an application under s 18, will consider the circumstances in existence at the time the s 18(1) request was made: Domaszewicz v The State Coroner.[30]

• If circumstances arise, following the refusal to hold an inquest, favouring the conduct of an inquest, the Plaintiff may make a further request for an inquest under s 18(1) based on the new information: Domaszewicz v The State Coroner.[31]

27 As discussed below, the highest the Plaintiff's puts his case is that under s 15, the coroner had jurisdiction to investigate the death as Ms Chiotelis' death was a reportable death under s 3(1). The Plaintiff does not suggest that the coroner was required to hold an inquest under s 17(1). Rather, the Plaintiff concedes that the decision whether or not to hold an inquest was within the coroner's discretion under s 17(2). The Plaintiff does not suggest that the coroner did not consider the request for an inquest made by the Plaintiff or that she failed to give reasons for her refusal of the request under s 18(1). The Plaintiff seeks an order under s 18(3) and relies on discrepancies in the evidence surrounding Mrs Chiotelis' death that warrant further investigation and that may indicate incompetence on the part of the attending police or the MAS officers or worse.

28 The Plaintiff says that the information put to the coroner was incomplete and the following matters were not brought to the coroner's attention:

• That Ms Hassen saw Ms Chiotelis move as she approached the vehicle. The statement contradicts the Police's observations that Ms Chiotelis had 'died instantly' and the MAS's statement that Ms Chiotelis was 'unable to be revived';[32]

• That Ms Hassen and Ms Tcaciuc saw the policemen checking under the white sheets where Ms Chiotelis and Mr Basturk were, behaviour which they believe is inconsistent with Ms Chiotelis and Mr Basturk being dead;

• That the policemen made inconsistent statements about the time of death of the victims. Their statements say that Ms Chiotelis died instantly and Mr Basturk died about 2 to 3 minutes after they arrived. The Plaintiff and his wife say, however, that the policemen told them that Mr Basturk had lived for around 40 minutes following the accident; [33]

• That the policemen's conduct at the scene indicated that they knew Mr Basturk's identity soon after the accident but they did not know the identity of Ms Chiotelis. The Plaintiff speculates that the police would have known, by checking Mr Basturk's car registration, that he was about to face drug trafficking charges in the Magistrates' Court.

29 It was put by Mr Finkelstein for the Plaintiff that these inconsistencies may indicate incompetence on the part of the MAS and Victoria Police, or even a wilful disregard by Victoria Police for the life of an alleged drug trafficker, Mr Basturk. Mr Finkelstein submits, as a hypothesis rather than an allegation, that the police did not really care whether the driver lived or died and that they should not have sent the ambulance away. He conceded that there was no evidence that the police did send the ambulance away, as opposed to the MAS officers leaving on their own volition after finding both occupants had died in the accident. [34]

I am saying that at some stage there was either incompetence on the part of the police or the ambulance service, and this is why they were served, or there was a deliberate disregard by the police as to the welfare of both occupants which, in my hypothesis, have tied to his involvement with drug trafficking charges that were to be heard later that month.[35]

31 He said it was very unusual for a statement not to be taken from the ambulance driver who attends the scene of a fatal collision and yet none was taken in this instance. He concedes that all his submissions pivot on the evidence of the witness, Ms Hassen. Mr Finkelstein conceded that the bar was set high for the court to order the coroner to hold an inquest. He said:

I cannot assist Your Honour as to the level of the test except to say that I would suggest, respectfully, that if Your Honour is made uncomfortable by anything that's been brought forward to the court today, and that might be the test where the matter should be sent back to the state coroner to conduct a full inquest.

Being in the nature of an investigative process that's the best way to get to the bottom of it and answer either or both of those hypotheses in the negative, put the matter to rest for my client, the plaintiff, some kind of end point to his tragic sorrow and for that of his family, his wife and son who have suffered with him.

.... So if the court now has material that satisfies the court that a coroner reasonably acting in discharge of his or her duties, ought to have opted for a full inquest, and that is all the court is asked to decide, not whether someone has been disreputable or incompetent or any other thing, just simply that the matter calls out for further investigation.

If the answer to that question is yes, then I would respectfully suggest that the order should be made, and if the answer is no, then I respectfully suggest the order should not be made and the matter should end here.[36]

32 I have set out Mr Finkelstein's submissions at some length to confirm that the court has had full regard to their import.

33 The following information was included in the inquest brief before the coroner, which she based her refusal on: First, that the police and the MAS had found that Ms Chiotelis was dead when they arrived. Second, that Ms Hassen saw Ms Chiotelis move.[37] Third, that Ms Hassen saw the policemen checking under the white sheets where Ms Chiotelis was. Those matters, however, were not specifically highlighted to the coroner in the inquest brief.

34 The coroner was not made aware that the police told the Plaintiff and his wife that Mr Basturk had survived for around 40 minutes, that Ms Tcaciuc also saw the policemen checking under the white sheets where Ms Chiotelis was and that both Ms Hassen and Ms Tcaciuc believed that this was odd behaviour, that Ms Tcaciuc saw the policemen shine torches into the cabin where Ms Chiotelis was and that Ms Tcaciuc was party to the conversation where Ms Hassen informed Senior Constable Asenjo that she saw the Deceased move.

35 The Defendant submits that the only matter of relevance to my decision is whether the coroner satisfied her statutory obligations under s 19 of the Act.[38] The Defendant further submits that whether or not the coroner knew of all the information outlined above is irrelevant because her responsibility was ultimately to fulfil her responsibilities under the Act.[39]

36 Nothing has been put before me to suggest that the coroner did not satisfy her obligations under s 19 of the Act, based on the facts in existence at the time, that is, the information then known to her and not the information which emerged following her refusal. She had a report from the MAS that Ms Chiotelis was dead when they arrived at the scene of the accident. Section 19(2) says that she may comment on any matter connected to the administration of justice. I do not think anything that was put before her would have caused her to feel the need to comment on the administration of justice, furthermore, there is no obligation on her part to do so.

37 The thrust of the Plaintiff's case relies on matters not put before the coroner. Whether her knowledge of those matters may lead her to hold an inquest is a matter within her discretion. In my view, it would be a rare case indeed for the Court to make an order that an inquest be held if the relevant matters said to justify an inquest had not been put before the coroner together with a request that she hold an inquest.

38 Mr Finkelstein contends that it is sufficient for the court to order an inquest if it is uncomfortable with the position.[40] By that I take him to mean that if the court finds that there are some inconsistencies and troublesome matters that may warrant further inquiry surrounding the death of the deceased, the court should order an inquest. In my opinion, such matters do not warrant the court exercising its powers under s 18(3), particularly where all these matters were not put to the coroner when the inquest was requested.

39 The Plaintiff also submits that if the material before the court satisfies the court that a coroner reasonably acting in discharge or his or her duties ought to have opted for a full inquest, then the court should order an inquest.[41] I am not satisfied that is the appropriate test in deciding whether to direct that an inquest be held. The Act gives the coroner a wide discretion. Tadgell JA described it as an 'absolute discretion'. It is sufficient for me to say that s 18(3) is not activated if the court seeks to put itself in the position of a coroner and ask whether the coroner ought to have opted for a full inquest. Such a test would undermine the discretion of the coroner. In any event, I do not need to finally resolve that issue as, critically in this case, the coroner did not have before her the material now relied on by the plaintiff.

40 I do not consider that in the circumstances of this matter it is necessary or desirable in the interests of justice to order an inquest. As indicated above, it is open to the Plaintiff to make another request under s 18(1) relying on the facts that were not put before the coroner previously and it is open to the coroner to decide whether to hold an inquest.

41 It should also be noted that s 19(1)(e) of the Act, which used to require the coroner to determine 'the identity of any person who contributed to the cause of death' was repealed in 1999 by the Coroners (Amendment) Act 1999.

42 I can readily understand the terrible grief the Plaintiff, his wife and son must feel for the tragic loss of their daughter and sister. Nevertheless, I am obliged not to grant the Plaintiff's application.

43 I will hear the parties on the question of costs.

I certify that this and the 13 preceding pages are a true copy of the reasons for Judgment of Robson J of the Supreme Court of Victoria delivered on 26 June 2009.

[1] [1999] VSCA 226.

[2] [1999] VSCA 226 at [9].

[3] [1999] VSCA 226.

[5] [1980] HCA 13; (1980) 144 CLR 13.

[6] [1980] HCA 13; (1980) 144 CLR 13 at 35-6.

[7] [1998] 4 VR 773.

[8] [1998] 4 VR 773 at 781.

[9] [1995] VICSC 207; [1996] 2 VR 647.

[10] [1999] VSC 396.

[11] [2004] VSC 528.

[12] [1995] VICSC 207; [1996] 2 VR 647.

[13] [1995] VICSC 207; [1996] 2 VR 647 at 652.

[14] [1995] VICSC 207; [1996] 2 VR 647 at 653.

[15] [1995] VICSC 207; [1996] 2 VR 647 at 653.

[16] [1995] VICSC 207; [1996] 2 VR 647 at 654.

[17] [1995] VICSC 207; [1996] 2 VR 647 at 655-6.

[18] [1999] VSC 396.

[19] [1995] VICSC 207; [1996] 2 VR 647.

[20] [1999] VSC 396 at [31].

[21] [1999] VSC 396 at [34].

[22] [2004] VR 237.

[23] [2004] VR 237 at 242.

[24] [2004] VR 237 at 246.

[25] [2004] VR 237 at 247.

[26] [1995] VICSC 207; [1996] 2 VR 647.

[27] [1999] VSC 396.

[28] [1999] VSC 396.

[29] [2004] VSC 528.

[30] [2004] VSC 528.

[31] [2004] VSC 528.