Plaintiff v First Defendant Second Defendant

Plaintiff v First Defendant Second Defendant - [2010] VSC 449 - VSC 2010 case summary — Zoe

[9]

Section 9 of the Act provides that the coronial system should operate in a fair and efficient manner.
The current proceedings arise out of an inquest into the death of Linda Stilwell.
The death of Linda Stilwell was a 'reportable death' within the meaning of s 4 of the Act. In the circumstances a coroner was obliged to investigate the death of Linda Stilwell (s 15) and to hold an inquest into her death (s 52(2)(a)).
The powers of a coroner conducting an inquest are set out in Division 2 of Part 5 of the Act (see ss 55 - 66). A coroner may -
- (a) summon a person to attend as a witness or to produce any document or other materials;[12]
- (b) inspect, copy and, subject to the Act and the rules, hold for a reasonable period anything produced at the inquest;
- (c) order a witness to answer questions;
- (d) exclude a person or class of person from an inquest;
- (e) give any other directions and do anything else the Coroner believes necessary.[13]
Section 57 deals with privilege in respect of self incrimination. The terms of the section are set out later in this judgment.
A coroner may also give a person leave to appear as an 'interested party' if the coroner is satisfied that the person has a sufficient interest in the inquest and it is appropriate for them to be an interested party.[14] The rights of 'interested parties' are set out in s 66. An interested party may examine or cross-examine witnesses and make submissions. An interested party may also make a submission to the coroner specifying who the party considers to be a relevant witness and the coroner may consider that submission and determine whether that witness should be called.
A coroner must conduct an inquest with as little formality and technicality as the interests of justice permit and in a way that, as far as practicable, makes the inquest comprehensible to interested parties and family members who are present.[15]
Section 62 provides that a coroner holding an inquest is not bound by the rules of evidence and "may be informed and conduct an inquest in any manner that the coroner reasonably thinks fit". Parts II, IIA and III of the Evidence (Miscellaneous Provisions) Act 1958 and (except as otherwise provided in the Act) the Evidence Act 2008 do not apply to the Coroners Court.[16]
The Act does not affect the law or practice relating to legal professional privilege.[17]
Section 64 provides that the coroner holding the inquest determines:
- (a) the witnesses to be called; and
- (b) the relevant issues for the purposes of the inquest.
Oral evidence provided at an inquest must be recorded in accordance with s 131 of the Evidence (Miscellaneous Provisions) Act 1958. Except as provided in ss 65(3), 65(4) and 65(6) of the Evidence Act 2008, a record of evidence provided to the Coroners Court is not evidence in any court of any fact asserted in it.[18] Subsections 65(3), 65(4) and 65(6) of the Evidence Act 2008 deal with the circumstances in which evidence of a previous representation can be admitted in a later civil or criminal proceeding.
Section 67 of the Act provides that a coroner investigating a death must find, if possible:
- (a) the identity of the deceased, and
- (b) the cause of death; and
- (c) the circumstances in which the death occurred (unless s 67(2) applies);[19] and
- (d) any other prescribed particulars

[18]

Dr David Leo Ranson:[26] is a medical practitioner practising as a specialist in forensic medicine and pathology. He is the Deputy Director of the Victorian Institute of Forensic Medicine. His evidence reviewed the available pathological and documentary material relating to the deaths of five children: Christine Sharrock (15 years old, body found at Wanda Beach Sydney 11 January 1965); Marianne Schmidt (15 years old, body found at Wanda Beach, Sydney 11 January 1965); Alan Redston (6 years old, body found at Curtin, ACT 28 September 1966); Simon Brook (3 years old, body found at Glebe, NSW 18 May 1968) and Yvonne Tuohy (12 years old, body found at Skye Beach, Warneet 20 July 1969). Dr Ranson was provided with autopsy reports, photographs and investigators' summaries in respect of each of these deaths. He was asked to identify similarities between the cases and to determine whether the injuries might have been inflicted by a right or left handed person and to deal with criminological issues regarding the age and sex of the victims and any characteristics of the offender or offenders. He found some similarities between cases 1, 2, 4 and 5 but noted that case 3 showed a number of differences.
Dr Jenny Dimitra Mouzos:[27] is a criminologist employed as a senior research analyst at the Australian Institute of Criminology ('AIC'). The AIC manages the National Homicide Monitoring Program which collects incident, victim and offender data on all homicides coming to police attention since 1 July 1998. Her evidence dealt with the 536 records involving the homicide of a child in Australia between 1 July 1989 and 30 June 2003 which involved any kind of mutilation. Dr Mouzos concluded: "I am of the opinion that child mutilation murder is an infrequent occurrence in Australia. During the said period there was an average of 1.4 child mutilation murders per year in Australia or an average rate of 0.3 per million children aged 0 to 6 years in Australia over the 14 - year period."[28]
Professor James Robert Ogloff:[29] is a clinical forensic psychologist. He was contacted by Victoria Police in respect of Mr Percy, who was a suspect in a number of unsolved homicides from Victoria, NSW, South Australia and the ACT. He was asked to provide a professional opinion about the likelihood that Mr Percy may be responsible for some or all of the crimes. At the commencement of his statement Professor Ogloff noted that:

[64]

Whether the departure from the requirements of s 57(3) in this case results in the invalidity of the Coroner's ruling is dependent upon the legislative purpose. Is the legislative purpose of s 57(3) to invalidate any act that fails to comply with those requirements?
The language used in s 57(3) is plainly relevant in deciding this question. Section 57 does not say, in terms, that a failure to comply with the requirements of s 57(3) renders the exercise of the Coroner's power under s 57 invalid. Subsection 57(3) provides that "the coroner is to inform the witness" of the matters specified. This may be contrasted with more emphatic language of s 57(2), "the coroner must determine", and s 57(5), "the coroner must cause the witness to be given a certificate".
The use of different language within the same section is telling. It would have been a simple matter to express s 57(3) in mandatory terms, but Parliament chose not to do so. This suggests that the direction to the Coroner in s 57(3) was not intended to be mandatory.[50]
The legislative context is also relevant. The stated intention of the Act is that the coronial system operate in a fair and efficient manner. Inquest proceedings are inquisitorial in nature and the Act provides that they are to be conducted with as little formality and technicality "as the interests of justice permit".
As to the interests of justice in this case, it is relevant to note that the witness (Mr Percy) was represented by counsel and, in the final result, the Coroner did not require the witness to give evidence. It is also apparent from a review of the transcript that Mr Percy's counsel was familiar with terms of s 57 and in particular the availability a certificate and the effect of such a certificate.[51] In particular, counsel's submissions made it clear that he was aware that a s 57 certificate provided both direct and derivative use immunity.[52]
The legislative context and the particular circumstances in this case do not point to the necessity of strict compliance with the requirements of s 57(3). I am not persuaded that the failure to comply with the requirements of s 57(3) invalidated the Coroner's ruling. For completeness I note that the interests of justice may have necessitated a different conclusion had the witness not been represented.
I now turn to the second basis for the Plaintiff's challenge to the second ruling.
The essence of the Plaintiff's contention was that it was not open to the Coroner to find that any evidence Mr Percy might give about the circumstances of Linda Stilwell's disappearance would be unreliable. It was submitted that the Coroner erred in having regard to psychiatric opinions about Mr Percy which were given around the time of Linda Stilwell's disappearance. It was argued that the Coroner should have had regard to more recent evidence about Mr Percy's memory and in particular he should have had regard to Professor Ogloff's evidence in respect of that issue.
Before turning to the particular points advanced on behalf of the Plaintiff I propose to set out the relevant context.
When the question of Mr Percy being called was first mooted the following exchange took place between the Coroner and Mr Higham, counsel for Mr Percy:

[93]

This proposition is supported by ample authority.[67]
The 'irrelevant consideration' which is said to have been taken into account by the Coroner was the reports of Drs Bartholomew and Ball. Two things may be said about this submission.
The first is that the submission is misconceived. A distinction may be drawn between a relevant consideration and the evidence which may be said to bear on that consideration.[68] The same conceptual distinction may be made in the context of an irrelevant consideration. Applying that proposition here, the consideration in question is the reliability of the evidence which Mr Percy might give. It is not suggested that in deciding whether to compel Mr Percy to give evidence the Coroner was precluded from considering the reliability of such evidence. The challenge is to the matters to which the Coroner had regard in considering the question of reliability. The reports of Drs Bartholomew and Ball amount to evidence which may bear on that consideration. The two reports do not constitute a 'consideration' (whether relevant or irrelevant), rather they are merely items of evidence.
Seen in this way it is not open to the Plaintiff to challenge the Coroner's reliance on the two reports.
The second point is that, if I am wrong about the distinction between a relevant consideration and mere items of evidence, I am not persuaded that the Coroner was precluded from having regard to the reports. The evidence in question goes to Mr Percy's state of mind at the time of the events with which the inquest was concerned. I am not persuaded that the Coroner was precluded from taking such matters into account.
As to the second limb of the Plaintiff's submission, that the Coroner failed to have regard to a 'relevant consideration', it must be shown that the Coroner failed to have regard to a matter which he was bound to consider. The 'relevant consideration' which the Coroner is said to have failed to take into account is Professor Ogloff's evidence. I am not persuaded that the Coroner erred in the manner contended, for two reasons.
The first reason is the same point made in respect of the reports of Drs Bartholomew and Ball. Professor Ogloff's report does not amount to a 'relevant consideration' in the context of jurisdictional error. It is an item of evidence that bears on a relevant consideration, it is not a relevant consideration in its own right.
The second point is that in the proceedings before the Coroner no party sought to rely on Professor Ogloff's evidence for the purpose of assessing the reliability of Mr Percy's evidence. I fail to see how the Coroner can be said to have erred in failing to consider evidence which no one sought to adduce.
For completeness I would note that even if the Plaintiff had established that the Coroner had made a jurisdictional error such as to provide a basis for certiorari, I would not have granted the remedy sought. Certiorari is a discretionary remedy.[69] Considerations which are relevant to the exercise of the discretion include the conduct of the applicant and the utility of the relief sought. As Ryan J put it in Shell's Self Service Pty Ltd v Deputy Commissioner of Taxation:[70]

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Judgment (149 paragraphs)

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Cases Cited (11)