Administrative Law - Judicial review on grounds of ultra vires or defective exercise of powers - Unreasonableness - Claim that no logically probative material to support critical findings of fact. Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; (1948) 1 KB 223; Council of Civil Service Unions and Ors v Minister for the Civil Service (1985) 1 AC 374, applied.

Prerogative Writs - Mandamus, prohibition and certiorari - Writs and orders - Certiorari - In respect of what matters and to what tribunals - Particular matters and tribunals - Coronial inquiry - Coroner's jurisdiction to make an order for committal - Failure to apply correct test. Coroners Act 1957, s16(1). Ex parte Cousens; re Blacket and Anor (1947) 47 SR(NSW) 145, Ex parte Coffey; re Evans and Anor (1971) 1 NSWLR 434 and Connor v Sankey (1976) 2 NSWLR, not followed. Sankey v Whitlam (1979-1980) 142 CLR 1, Clayton v Ralphs and Manos (1987) 45 SASR 347, R v Murphy [1985] HCA 50; (1985) 59 ALJR 682, R v Grassby (1989) 15 NSWLR 109, Ainsworth and Anor v Criminal Justice Commission [1992] HCA 10; (1991-1992) 175 CLR 564, referred to.

UNDERWOOD J Joseph Gilewicz died on 16 July 1991 from injuries caused by a gunshot wound to the heart. The fatal shot was fired by 1/C Constable M C Fogarty, a member of the Special Operations Group of the Tasmania Police. A coronial hearing into this death commenced before Coroner Matterson on 18 March 1992 and concluded on 6 May 1992. The learned Coroner handed down his findings and reasons on 28 May 1992. No order of committal was made. The formal inquisition was:

"That the said Joseph Gilewicz died on the 16th day of July

1991 at Pelverata in the State of Tasmania from

exsanguination due to destruction of the left ventricle and

aorta by a rifle shot which wound was inflicted by an officer

of Tasmania Police Force, such officer acting in self

defence, and that the said Joseph Gilewicz was born in Poland

on the 1st day of September 1948, was 42 years of age, was a

Veterans' Affairs disability pensioner and was not attended

by a medical practitioner at the time of his death."

2. Among those who were heard by counsel at the coronial inquiry, was Christine Moles, the de facto wife of the deceased. She claims to be a person aggrieved by the findings of the learned Coroner and his decision not to commit 1/C Constable Fogarty for trial. On 2 April 1993 she obtained a general order calling upon the learned Coroner to show cause why a writ of certiorari should not issue to quash the inquisition into the death of the deceased and why a writ of melius inquirendum should not issue to order a further and better inquiry.

AN OUTLINE SKETCH OF THE EVENTS LEADING TO THE DEATH

3. This is taken from the findings of the learned Coroner. The deceased was almost 43 years old when he died. He was born in Poland in 1948. His mother was Polish and his father Czechoslovakian. With his family, the deceased migrated to Australia in March 1950. They settled in the Channel area, south of Hobart. When he was 20 the deceased was conscripted into the Army and served in Vietnam for a year. He lived with the prosecutrix for approximately 9 and a half years prior to his death and of this union there are two children. At the time of his death, they were living in a house set in isolated bush land at Hall's Track Road, Pelverata. A steep gravel driveway in the order of 50 metres long, leads up from Hall's Track Road to the house. Access to the front door of the house is from a small square wooden landing five steps above the ground. The edge of the landing directly opposite the front door is the only side fitted with a guard rail.

4. The prosecutrix described the deceased as "a complex man". She said that he was compassionate, loving and loyal and yet at times irrational and violent. He suffered from a lot of pain which was said to have been caused by his service in Vietnam. At the time of his death he was in receipt of a Veteran's Affairs disability pension, the grant of which was based on the deceased suffering from post traumatic disorder, dyshidrotic eczema with neurodermatitis oesophageal reflux and lumbar spondylosis. There was a great deal of evidence that at times, the deceased would act irrationally and threaten to do violence to others. Those threatened treated the threats seriously. The prosecutrix said that "her main concern was to ensure that he gained treatment for his post traumatic stress disorder" but her attempts were thwarted by the deceased's refusal or lack of desire to keep appointments with a psychiatrist.

5. The deceased owned a number of firearms and explosives and often fired guns and rifles on his property. During the time he and the prosecutrix lived together, there were a number of violent arguments between them which often ended with the prosecutrix leaving home for a day or so and taking the children with her. There was one such incident on Friday 12 July 1991. It arose over what the deceased described as the prosecutrix's betrayal of him by attempting to organise a consultation with a psychiatrist. In the evening the prosecutrix and the children left the home at Pelverata. She was afraid that the deceased might do her violence. She went to her sister-in-law's house that night and to a women's shelter the following night. It is unnecessary for present purposes to give a detailed account of events between Friday 12 July 1991 and the following Tuesday morning when the deceased met his death. Suffice to say that during this time the deceased made several journeys by taxi to and from the Dog House Hotel and other places. On some of those journeys he took a shotgun with him. On several occasions during this weekend he discharged firearms on his property. He was irate at times and acted irrationally. One night he slept with firearms in his bed. During this weekend there was some telephone contact between the deceased and the prosecutrix. They discussed meeting to talk things over, but no meeting took place. In the early evening of Monday 15 July 1991, the deceased started making a series of abusive and threatening phone calls. The first of these calls was to the prosecutrix's mother, Mrs Harris. In her affidavit she deposed that the deceased said to her:

"... I want my kids back tell Christine I want my kids back I

want them back in the next fucking fifteen minutes or I'm

going to waste you, Christine's father, her sister and her

brother. Christine the cunt she won't want to fuck with me.

I've got jelly all around the house."

6. Mrs Harris spoke to her husband who happened to be a police officer, and he reported the matter to an officer at the Kingston Police Station expressing to her his opinion that the deceased was "quite capable of carrying out his threats".

7. Within the hour the deceased again rang Mrs Harris. This time he said:

"Ring her and tell her I want my babies back. I'll fucking

get you all and that fucking cop husband of yours as well."

8. The conversation concluded with the deceased saying, "this is what you're all going to get ..." followed by what sounded like a muffled report of a shot being fired. Mrs Harris' husband then rang Hobart police and reported this call to Acting Inspector Hislop.

9. Minutes later the deceased rang the prosecutrix's father. The latter was aware of the two previous calls to Mrs Harris. On finding out that the prosecutrix was not with her father, the deceased said to him, "I'll get you" and then in terms that the prosecutrix's father described as "incoherent" spoke in derogatory terms of him, his son and his daughter. The prosecutrix's father reported this conversation to the police and immediately after he had done so, the deceased rang him again and simply said "I'm on my way".

10. There was consultation between several police officers, one of whom spoke to the deceased's psychiatrist. In result, Inspector Belbin went to the Kingston Police Station and took charge of the matter. Inspector Belbin knew the deceased and with respect to this said:

"I had considerable personal knowledge of the individual

concerned, of his recent behaviour, of his occasional use of

drugs, of his known mental problems, psychiatric problems,

supposedly as a result of his Vietnam experiences, and the

threats that he had made and the belief of the people who

were intimate with him that he intended - that he may carry

out those threats. ... I knew he was armed, I had reason to

believe he had explosives. It had been suggested to me by at

least one of the witnesses in the statements that I had to

hand that there may have been booby traps around the house,

and it was quite clearly, even with less information than

that, it was quite clearly not a situation that you could

send ill-equipped police to attend to."

11. Inspector Belbin decided it was appropriate to call out the Special Operations Group (SOG) whom he described as "a group of police officers from a variety of backgrounds of police stations who are appropriately trained in special tactics and weapon handling to handle situations that it wouldn't be proper or safe for untrained, or relatively untrained, uniform police to attend to." Authority to do this was given by Assistant Commissioner (Crime) Le Fevre.

12. Late in the evening of Monday 15 July 1991 thirteen police officers, all members of the SOG went to Hall's Track Road, Pelverata. An ambulance officer and a communications officer accompanied them. At the scene Inspector Priest was in charge. Overall control of the events rested with Inspector Belbin.

13. It is not necessary to set out all the events that occurred between the arrival of the members of the SOG and the time the fatal shot was discharged. During the night telephone contact was established between the deceased and a police officer trained as a hostage negotiator. Generally speaking, the deceased's attitude was that he did not want to be disturbed and that he was going to sleep. However, a decision was made to maintain regular telephone contact with him, I infer because the police were concerned that in the darkness, he might leave the house and travel overland to make good the telephone threats. At one stage the deceased was seen around his house with a torch and at another he came out and stood in the lighted doorway with a rifle in his hand. According to one witness he shouted:

"I know you're out there you fucking cunts. If you come near

me you're fucking dead. Fucking dead do you hear me, now

fuck off."

14. About 6.15 am, Inspector Priest issued an order to his men that they were only to fire their weapons if fired upon or if their lives were in immediate danger. According to evidence given by police officers, a light came on inside the deceased's house at about 7am and a few minutes later a single shot was heard from the vicinity of that house. A hostage negotiator made telephone contact. The deceased said:

"Listen cock, I'm staying on my land, that's why I'm up here

so I don't get annoyed by pricks like you, and I don't expect

to be, all right?"

15. In subsequent telephone conversations the deceased insisted that he was going outside, that it was his land and that he would go outside with a gun if he so desired for he was doing that which he always did namely, go for his morning shot. The deceased then left the house carrying a shotgun. Four shots were fired. The watching police lost sight of the deceased.

16. At this stage, two police officers were a short distance down Hall's Track Road from the entrance to the deceased's property in what was referred to in the evidence as the holding area. A little distance away in the bush were five other police officers. Messrs Dyson and Petrie were stationed along Hall's Track Road between the holding area and the entrance. Constables M C Fogarty and Paul were almost directly opposite the entrance on the other side of Hall's Track Road and lying down behind a small box. These last two officers were approximately sixty metres away downhill from and directly facing the front door of the house. They were the only two officers who could see the front door and consequently they were the only two officers able to give an eye witness account of the critical moments leading up to the discharge of the fatal shot. Both were armed with high powered sniper's rifles and at least one, 1/C Constable M C Fogarty, was watching the area through his telescopic sight. In his affidavit Senior Constable Paul said:

"I moved my position to observe the front of the residence

just prior to Gilewicz walking up the stairs. He then

stopped, facing the door and turned around with his back to

the door. Gilewicz then slowly scanned the area from left to

right. He then looked quickly over his right shoulder at 1/C

Constable Fogarty and I. After Gilewicz had observed us he

moved to his right facing us and in the same motion brought

the weapon to his right shoulder to a firing position. As

Gilewicz was moving to this position I shouted loudly and

quickly 'put the weapon down, put the weapon down'. As

Gilewicz had taken a complete firing position, I heard 1/C

Constable M C Fogarty fire his weapon. Simultaneously I

observed what appeared to be powder smoke from Gilewicz's

firearm. Immediately after 1/C Constable M C Fogarty fired

his weapon, I saw Gilewicz fall over the back of the balcony

of his residence."

"I observed him moving up onto the balcony. He stood facing

the door and I believed that he was returning back inside. I

could see that he had a weapon however, I was unable to see

what type. He then moved to his right with his back to the

door. He slowly scanned from left to right and started to

scan back to his left. He then quickly looked over his right

shoulder directly at us. He commenced to bring his firearm

up into a firing position and sharply spin to his right

towards us. Senior Constable Paul yelled 'put the weapon

down, put the weapon down'. Gilewicz continued to spin

towards us and I could see he had placed himself in a firing

position facing us with his firearm at his shoulder directly

pointing at us. I believed that he was just about to fire at

Senior Constable Paul and myself. I was then left with no

alternative and returned a single shot to the centre of his

body. Immediately after I fired the shot I heard a loud

groan and saw him fall off the rear of the balcony."

18. In their evidence, all the police officers who were at the scene said that they heard Senior Constable Paul twice call out to the deceased to put the gun down and almost immediately thereafter heard the discharge of 1/C Constable Fogarty's rifle. No police officer heard the discharge of the deceased's shotgun. With respect to this issue, 1/C Constable M C Fogarty did not claim that he either saw or heard the deceased discharge the shotgun at him. Senior Constable Paul said that simultaneously with hearing 1/C Constable Fogarty's rifle discharge he "observed what appeared to be powder smoke from Gilewicz's firearm" but he did not hear the sound of a shotgun discharge.

19. After the fatal shot had been fired, Messrs Dyson and Petrie approached the deceased whom they described as lying in a crouched position on the ground at the back of the porch with a shotgun lying fairly close to him and broken open. Mr Dyson felt for a pulse in the neck but detected none. Mr Dyson searched the deceased for explosives and weapons but found none. The shotgun was moved away from the deceased and the body was pulled out some little distance and handcuffed. Ambulance man McCall then checked the deceased and confirmed that he was dead.

20. The foregoing is only an outline sketch of the relevant events and no more than is necessary for an understanding of these reasons for judgment. Obviously, much detail has been omitted. The transcript of the proceedings at the coronial hearing exceeds 3,000 pages and more than 150 affidavits were read. CERTIORARI

21. The general order nisi for writs of certiorari and melious inquirendum specifies four discrete grounds for intervention:

1 Breach of the rules of natural justice.

2 Error of law in making two findings of fact that no

coroner, acting reasonably and properly instructed as to the

law, could have made.

3 Failure to exercise or exercise in accordance with law,

jurisdiction conferred on the coroner by the Coroners Act

1957, ss7(1), 12(1) and 16(1).

4 Error of law in refusing to make an order committing 1/C M

C Constable Fogarty for trial.

22. On the return of the general order nisi, the prosecutrix was bound by the grounds set out in that order (Rules of Court, O72, r5), absent an order to the contrary (O72, r6). No application was made to "allow the prosecut(rix) to rely on grounds different from or additional to the grounds stated in the general order" (r6).

"There was procedural unfairness and a breach of natural

justice in that the applicant or members of the public might

entertain a reasonable apprehension that the coroner might

not have brought an impartial and unprejudiced mind to the

conduct of the proceedings including in particular to the

determination of the question of whether he should accept the

evidence of Senior Constable Lawrence Huxley when the said

Senior Constable Huxley had been assisting the coroner as a

member of the coroner's investigative team and the coroner

had failed during the hearing to disclose the fact that the

said Senior Constable Huxley had been so assisting him."

24. Submissions were confined to the proposition that a reasonable apprehension of bias arises out of the learned coroner's failure to disclose to the prosecutrix's counsel that Senior Constable Lawrence Huxley was a member of his investigative team prior to the coroner accepting that witness' evidence in preference to the evidence given by another witness.

25. In support of this ground, affidavit and viva voce evidence was adduced. The following are my findings of fact:

26. The expression "coroner's investigative team" is probably taken from the following passage in the coroner's findings and reasons:

"Before closing I want to pay tribute to my investigating

team of Senior Sergeant Gyselman and Detective Senior

Constables Huxley and Wilkinson. Theirs was a long onerous

and thankless task. They took on a monumental work load

which they tackled with true professionalism. I trust their

service records will be noted with my commendation for a task

well performed."

27. However, the concept that a number of police officers formed a coronial investigation team was firmly entrenched within days of the fatal shooting. Within an hour of the deceased's death, Inspector John Johnston, officer in charge of the Criminal Investigation Branch at Hobart, despatched Detective Senior Sergeant Gyselman to the scene. Inspector Johnston instructed Sergeant Gyselman to organise a team of police officers to secure the scene, conduct ballistic and other scientific investigations, to secure and record exhibits and to take photographs and the like. Inspector John Johnston told Sergeant Gyselman that the Internal Investigation Unit would take charge of the investigation.

28. Detective Sergeant Gyselman took with him to the scene police officers Barber, Di Monda, Spinks, Stanwix, police photographer McMillan and Detective Senior Constable Huxley, the officer referred to in ground 1 of the order nisi. On arrival at the scene, Detective Sergeant Gyselman spoke to the officer in charge of the SOG, Inspector Priest. Mr Hanuszewicz, the police ballistics officer, arrived at the scene. Mr Hanuszewicz and the officers who had arrived with Sergeant Gyselman went about their tasks. Shortly after this Detective Inspector David Fleming arrived at the scene. Inspector Fleming was the head of the Tasmania Police "Internal Investigation Unit". The unit consisted of Inspector Fleming and one other officer. He told the learned coroner that within an hour or so of the shooting he was asked, or to use his word "tasked" by the Deputy Commissioner of Police to go to the scene and report back to him. On arrival he spoke to Detective Sergeant Gyselman and Inspector Priest. Inspector Fleming told Sergeant Gyselman that the investigation should be conducted by the Criminal Investigation Branch and Sergeant Gyselman said that it should be conducted by the Internal Investigation Unit. In result, no one was put in a position of authority over the investigation until 48 hours after the death. According to Inspector Fleming's evidence, the reason for this was that neither the Police Standing Orders nor the operating procedures of the SOG provided a procedure to be followed after a fatal shooting at the hands of a member of the SOG. Inspector Fleming agreed that this was something that had not previously been considered and it required decisions to be made after the incident. He told the learned coroner that this had now been corrected:

"If it happened today I would take charge of the inquiry

straight away. I would be able to pick my team of people and

that would include the forensic teams, etc. The whole lot.

They would be under my control until such time as the inquiry

concluded."

29. After nearly two days of discussions between senior police officers the confusion was resolved. The resolution was to appoint Detective Sergeant Gyselman the officer in charge of the investigation team. Initially, Inspector Henley was put in charge of supervising the investigation. A few days after Inspector Henley's appointment he was replaced by Inspector John Johnston. The Internal Investigation Unit was charged with the responsibility of "oversighting the adequacy of the investigation and the propriety of it."

30. I have been unable to find any direct evidence of the coroner, initially Mr (now Justice) Hannon and subsequently Mr Matterson, appointing anybody to act as his agent. In his affidavit Inspector John Johnston says with respect to this:

"Later as instructed by Detective Superintendent FIELDING, I

assumed control of an Investigation Team led by Detective

Senior Sergeant GYSELMAN. This team had responsibility for

the investigation both from a Coronial and Internal Affairs

aspect."

31. The following paragraph in Inspector Johnston's affidavit tends to indicate that the coroner was simply informed of the identity of the investigating officers. He deposed:

"The Coroner was advised at an early stage and from that time

the investigation was effectively under his direct control in

accordance with the provisions of the Coroners Act."

32. On arrival at the scene on the morning of the shooting, Detective Sergeant Gyselman appointed Senior Constable Huxley assistant exhibits officer. In evidence on the return of the order nisi, Mr Huxley described his role as that of liaison officer between the ballistics' officer, Mr Hanuszewicz and the exhibit's officer, Senior Constable Di Monda. He said that this job was to ensure that all the ballistic exhibits were numbered sequentially and recorded on an exhibit sheet. The same information was recorded by Mr Hanuszewicz in his note book. Although important, this job might be described as somewhat tedious and routine.

33. According to Senior Constable Huxley's evidence given on the return of the order nisi, he was appointed to form "part of the coronial investigation team in relation to the death of Mr Gilewicz." He said that appointment was made by Sergeant Gyselman on 18 July 1991. This was the same day that Inspector Johnston appointed Sergeant Gyselman officer in charge of the investigation. I find that apart from acting as exhibits liaison officer at the scene and perhaps taking a statement from an unimportant witness, Detective Senior Constable Huxley did nothing of significance in connection with any investigation into the death of the deceased prior to his appointment to the coronial investigation team.

34. No one would doubt that in a case such as this a coroner needs assistance. It is widely accepted that such assistance is ordinarily given by a serving police officer, usually one especially assigned to this duty. In this case one such officer would not have been sufficient. However, it was suggested by the Report of the Committee on Death Certification and Coroners (UK), 22 September 1971 - "the Brodrick Report" par 21.11, that the coroner's officers should not be serving police officers in the case of a death at the hands of police. This recommendation was made in order to keep a coronial inquiry into such a death free from suspicion. The wisdom of this observation is apparent from the circumstances of this case. Senior Constable Huxley disclosed in his evidence on the return of the order nisi, that for 2 or 3 years prior to the day before the fatal shooting, he and 1/C Constable M C Fogarty worked at the same suburban police station. They knew each other well. Senior Constable Huxley was only transferred from that station the day before the deceased met his death. In those circumstances Senior Constable Huxley's appointment as an assistant to the learned coroner seems quite inappropriate. There is nothing in the material before me to indicate whether the learned coroner was aware of that circumstance or not and it is unnecessary to pursue the matter further because the relationship between Senior Constable Huxley and 1/C Constable M C Fogarty prior to 16 July 1991 is not relied upon in any ground in the order nisi.

35. In his affidavit filed on the return of the general order nisi, Senior Constable Huxley said that his duties as a member of the investigative team were "general investigation tasks and clerical functions, including the collection of statements, witnessing of affidavits, the transport of persons connected with the inquiry, and other related matters". He said that amongst others he had contact with the deceased's de facto wife, members of her family and members of the family of the deceased. He did not interview and take statements from any member of the SOG. Senior Constable Huxley deposed, and I accept that he continued with this work until 6 October 1991 when the collection of statements and affidavits had been substantially completed. This was some five months before the commencement of the coronial hearing. Senior Constable Huxley's name appears on a number of affidavits taken pursuant to the Coroners Act, s38 as the person before whom those affidavits were sworn.

36. After 6 October 1991, Senior Constable Huxley returned to general CIB duties and had it not been for certain startling evidence given at the coronial hearing by Mr Hanuszewicz the ballistics officer, Senior Constable Huxley would not have given any evidence, affidavit or oral, and this ground would not have arisen.

37. By 7 April 1992 counsel assisting the coroner had adduced all the evidence he intended to adduce apart from an affidavit made by Mr Hanuszewicz. This officer swore an affidavit on 15 August 1991. On 7 April 1992 it was tendered in evidence at the coronial hearing. It deposed to Mr Hanuszewicz's observations and findings made at Pelverata on 16 July 1991 and to his later test firings of various weapons. In it, Mr Hanuszewicz deposed that he found one No 4 lead shot in a hole in a tree stump. The discharged cartridge taken from the shotgun lying in a broken open position next to the deceased's body was No 4 shot size and this stump was in the line of fire between the deceased and 1/C Constable Fogarty. No other piece of shot was found that could have come from the empty cartridge in the weapon held by the deceased at the time he was killed.

38. On 9 April 1992 Mr Hanuszewicz appeared as a witness at the coronial hearing. He said that shortly after he signed the affidavit he went off on sick leave. He was suffering from post traumatic stress disorder that he claimed was due in part to his service as a soldier in the Vietnam war and due in part to his service as a police officer. He said he was away for seven months and when he returned he was told that he would not be required as a witness at the coronial hearing. He told the learned coroner that his affidavit was incorrect insofar as it states that he found the piece of No 4 shot in a hole in the stump. He said in evidence that he found that piece of shot some distance away and he put it in the hole. He added that he did this because he was "enticed" or "induced" to do so by the officer in charge of the SOG, Inspector Priest. Mr Hanuszewicz explained to the coroner that he joined Inspector Priest and a number of other police officers at the stump and Inspector Priest said "Look we found some shot here". Inspector Priest then passed something to Mr Hanuszewicz who rolled it in his fingers and it broke up. Mr Hanuszewicz said "It's bird shit". In his evidence-in-chief Mr Hanuszewicz told the learned coroner:

"Again, (Inspector Priest) said, 'no', he said, 'that is

lead, isn't it?'. I said 'no, Inspector, that is not lead -

it's bird shit'. I said it again. And he said 'no, that is

lead' and I deduced from that that that's what he wanted me

to find there - lead."

39. Mr Hanuszewicz said that later he was by himself when he found the piece of No 4 shot and put it in the hole in the tree stump. He told the learned coroner, "all I was interested in was putting it there and causing a doubt as to whether a shot had been fired or not". Mr Hanuszewicz said that after he put the piece of shot in the hole he called the police photographer over to take a photograph of it.

40. Mr Hanuszewicz said that in all other respects his affidavit was correct but in his evidence he went on to detail a number of other allegations which were summarised by the learned coroner in his reasons and findings as follows:

"That Gilewicz had probably not fired his shotgun at Sierra 1

(Constable Paul) and Sierra 4 (1/C Constable M C Fogarty)

because he claimed Sierra 1 had asked him what would have

been seen if a shotgun was discharged towards him and that

Hanuszewicz, Sierra 1 and Senior Constable Pearce from

Ballistics Section had made a surreptitious visit to the T C

Simpson range at Pontville where a shotgun was discharged in

the direction of Sierra 1 to demonstrate the effect.

A claim that the shotgun of Mr Gilewicz could not have broken

open the way it was found at the scene, the inference being

that Mr Gilewicz would not have had same in a firing position

at the time Sierra 4 shot him.

The feeling that there was something strange about the scene

leaving him with the feeling that the shooting had not

occurred in the manner or the place claimed but, to use his

phrases, it had been 'a murder' or 'an execution'.

A further concern that all was not well when he was not

invited to be present during the autopsy.

An allegation that the police investigation after the

incident initially lacked leadership and was not performed in

the ordinarily accepted manner."

41. The learned coroner rejected all the allegations made by Mr Hanuszewicz, including the one that he had deliberately placed a piece of No 4 shot in a hole in the tree stump. That finding is not the subject of direct challenge in these proceedings, and although the evidence of Mr Hanuszewicz will require a little further consideration in connection with other grounds, it is unnecessary to consider it further for present purposes. It is the process that in part led to the learned coroner rejecting Mr Hanuszewicz's allegations that gives rise to ground 1 of the order nisi.

42. Mr Hanuszewicz told the learned coroner that his return to work after sick leave was limited to two days per week. He said that after his return he covertly tape recorded a number of conversations between him and other police officers which he claimed supported his allegations that the police had covered up the true facts surrounding the death of the deceased. Following that evidence from Mr Hanuszewicz, the coronial hearing was adjourned to enable transcripts of the tape recordings to be made and instructions taken.

43. As Senior Constable Huxley had been working with Mr Hanuszewicz on the day of the shooting, the former became a material witness. During the adjournment Senior Constable Huxley was interviewed by a senior police officer and a transcript of that interview was tendered in affidavit form on the resumption of the coronial hearing. Senior Constable Huxley also gave oral evidence. The critical substance of his evidence was that he joined Mr Hanuszewicz and other police officers at the tree stump. He said that he saw Mr Hanuszewicz examining the stump and pointing out what appeared to be a lead fragment on the side of the bark of the stump and also some other object, possibly a fragment in a hole in the stump. He said he believed that Mr Hanuszewicz said something about it might be a piece of grit. Senior Constable Huxley told the learned coroner that he heard no discussion between Inspector Priest and Mr Hanuszewicz like the one that Mr Hanuszewicz claimed induced him to later place the piece of No 4 shot in the hole. Senior Constable Huxley said that the group of officers then broke up and he and Mr Hanuszewicz started methodically photographing, collating and collecting ballistic exhibits starting at the body of the deceased. Senior Constable Huxley told the learned coroner that thereafter he was close by Mr Hanuszewicz for the rest of the time the latter was at the scene and that Mr Hanuszewicz did not go to the place where he claimed that he had found the piece of No 4 shot. Senior Constable Huxley said that he and Mr Hanuszewicz returned to the tree stump and Mr Hanuszewicz took the lead fragment from the side of the stump. He said he was unsure about what happened with respect to the object in the hole in the stump. He simply received the fragment or fragments from Mr Hanuszewicz and labelled it or them exhibit number 33.

44. Senior Constable Huxley was cross-examined by all counsel attending at the coronial inquiry. In his reasons and findings the learned coroner said the following with respect to the evidence given by Senior Constable Huxley:

"One further matter must be considered in assessing the

allegation of fabrication. Detective Senior Constable Huxley

advised in his affidavit (Exhibit P143) that he was assigned

that morning to accompany First Class Constable Hanuszewicz

to record all exhibits found by Hanuszewicz at the scene and

to co-ordinate the numbers attributed to each with the

designated Property Officer, Detective Senior Constable Di

Monda.

He said that Hanuszewicz was not briefed by Sunray but by

Detective Senior Sergeant Gyselman after which he

(Hanuszewicz) immediately went down the laneway to the stump

where there were a number of officers. Huxley went down a

short time later and heard the discussion about whether an

item was lead shot or grit. Soon after they returned to the

house and commenced a systematic search. They worked from

the inside and finally out into the open, arriving at the

stump where the lead fragment was then retrieved and

photographed and entered as Exhibit No 33. Huxley said that

at the time that article was retrieved Hanuszewicz had not

been in the area of the pig pen. They went there later

(p2909).

First Class Constable Hanuszewicz indicated during his

examination in chief (p2721) that he did not know Huxley.

This came as a surprise to Senior Huxley who advised Mr Avery

(p2914) that Hanuszewicz referred to him all day by his

Christian name of 'Laurie' and that he had been involved with

Hanuszewicz on a number of incidents over several years.

I do note Hanuszewicz admitted to Mr Melick (p2014) that he

had had more problems with his memory in the last twelve

months.

I am not satisfied that any incitement or inducement, as

known to law, was tendered to First Class Constable

Hanuszewicz to fabricate any evidence. My job here, as I

expressed earlier, is to establish facts. There is no

factual basis for the assertions of the witness and indeed,

on the evidence, I do not believe, particularly having regard

to the evidence of Senior Constable Huxley, there was any

opportunity for First Class Constable Hanuszewicz to obtain a

lead shot that he could have planted in any event. That

being so I cannot be satisfied that the assertion that he

fabricated any evidence has been established."

45. The prosecutrix's complaint is not that a member of the coroner's investigative team gave evidence at the coronial inquiry, but that the learned coroner did not disclose to her counsel that Senior Constable Huxley was a member of his investigative team. It was submitted that the failure to make that disclosure gives rise to a reasonable apprehension that the learned coroner "might not have brought an impartial and unprejudiced mind to the conduct of the proceedings including in particular to the determination of whether he should accept the evidence of Senior Constable Lawrence Huxley ..."

46. An attempt was made on the return of the order nisi to establish by evidence that counsel for the prosecutrix at the coronial hearing had reason to believe or ought to have been aware that Senior Constable Huxley was a member of the coroner's investigative team. Although his name appears on quite a number of affidavits as the attesting officer, and although counsel for the prosecutrix read those affidavits, I find that that fact did not give him reason to believe that the person who gave evidence in April 1992 was a member of the coroner's investigative team. Similarly, although it is true that a very attentive listener to the cross-examination of Senior Constable Huxley by counsel for Mr Hanuszewicz might have been alerted to the fact that the witness was a member of the coroner's investigative team, I find that in the circumstances it was not unreasonable for the prosecutrix's counsel to have not been so alerted.

47. When Senior Constable Huxley went into the witness box the prosecutrix knew that he was a member of the coroner's investigative team. She knew that because she had seen him on more than one occasion in the course of him taking statements from members of her family. However, she deposed in an affidavit that until he gave evidence, she did not realise that he had also been an investigating officer present at the scene immediately after the shooting. Her affidavit evidence was that she "felt it was wrong that he was appointed to the coroner's investigative team when he had been involved in that way". She said however that she did not speak to her counsel when Senior Constable Huxley gave evidence because she "just assumed that Mr Porter knew that Huxley was part of the investigative team" and "I did not know it was open to objection that the coroner was taking evidence from a member of his investigative team when the evidence contradicted a major witness." THE LAW

48. It was common ground that Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596 is authority for the proposition that the principles of natural justice applied to the coronial hearing. It was also common ground that application of the relevant principle of natural justice required the learned coroner to so conduct the hearing that there would not arise "a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it" per Livesey v New South Wales Bar Association [1983] HCA 17; (1982-1983) 151 CLR 288 at 294. See also R v Watson; ex p Armstrong [1976] HCA 39; (1976-1977) 136 CLR 248, R v Lusink; ex p Shaw (1981) 55 ALJR 12.

49. It is well established that what is required of a tribunal to avoid giving rise to a reasonable apprehension of bias depends on the nature and jurisdiction of the tribunal. See eg, R v Commonwealth Conciliation and Arbitration Commission and Ors; ex p Angliss Group (1969-1970) 122 CLR 546 at 552, Russell v Duke of Norfolk and Ors (1949) 1 All ER 109 at 118. In this case the tribunal is a coroner discharging common law and statutory duties. The nature and function of those duties was described by Lord Lane CJ in R v South London Coroner, ex p Thompson, The Times, July 9 1982 cited in Jervis on Coroners 10 edn at 6:

"Once again it should not be forgotten that an inquest is a

fact finding exercise and not a method of apportioning guilt.

The procedure and rules of evidence which are suitable for

one are unsuitable for the other. In an inquest it should

never be forgotten that there are no parties, there is no

indictment, there is no prosecution, there is no defence,

there is no trial, simply an attempt to establish fact. It

is an inquisitorial process, a process of investigation quite

unlike a trial where the prosecutor accuses and the accused

defends, the judge holding the balance or the ring, whichever

metaphor one chooses to use."

50. In the circumstances of a coronial inquiry, fair minded people or the hypothetical bystander, would not reasonably apprehend bias from the mere fact that there had been out of court contact between the coroner and a witness who later gave evidence. Indeed, the bystander would not be at all surprised to learn that there had been such contact having regard to the nature of the coronial process. In R v Carter and the Attorney-General; ex p Gray and McQuestin (Full Court) Serial No A90/1991 the court held that the apparent bias needs to be considered in the context in which it is claimed, and that the fair minded people referred to in the majority judgment of R v Watson would be aware that a large part of the Commissioner's duty involved investigation and inquiry. So it is in the case of a coronial inquiry. By contrast that bystander would not expect there to be any extra-curial contact between a tribunal such as a court and a witness, a party or representative of a party. In such a case, out of court contact per se might reasonably give rise to an apprehension of bias. Cf The City of St Kilda v Evindon Pty Ltd and Ors [1990] VicRp 67; (1990) VR 771.

51. Accepting those propositions, the submission put on behalf of the prosecutrix was that apprehension of bias arises out of the failure to disclose, not the fact of the contact but the relationship between the witness Huxley and the learned coroner. In cases where the claimed apparent bias is said to arise out of a pre-existing relationship between the tribunal and the witness, determination of whether a reasonable apprehension of bias arises depends upon the nature and extent of the relationship. See S and M Motor Repairs Pty Ltd v Caltex Oil (Aust) Pty Ltd (1988) 12 NSWLR 358. In Carter at 47, the Court said that the fair minded observer "is as well informed about the whole of the proceedings ... as is this Court." The New South Wales Court of Appeal considered the extent of the knowledge of the hypothetical bystander again in Najja v Haines (1991) 25 NSWLR 224. At 263 Rogers A-JA referred to the following words of Kirby P (in dissent) in S and M Motor Repairs Pty Ltd v Caltex Oil (Aust) Pty Ltd (supra) at 368:

"Insofar as such bias is said to arise from a relationship

between the parties, it is clearly relevant to know the

duration of that relationship, its intensity and nature and

the time that has elapsed between its large renewal and the

performance of the judicial function said to be affected by

it."

52. His Honour said that the majority view in that case was to the same effect viz, the reasonable bystander would want to have sufficient knowledge of the relevant facts before proceeding to judgment. Clarke JA adopted the same approach saying at 240 other facts when they came to light, might qualify the impact that might otherwise have flowed from the information "gleaned by the appellant".

53. Whether a reasonable apprehension of bias arises from the failure to disclose the prior relationship between the learned coroner and the witness before the former accepted the evidence of the latter over the evidence of Mr Hanuszewicz, must be considered on the basis that the fair minded person is aware of the nature and extent of the relationship as disclosed by the evidence given in these proceedings.

54. I accept Senior Constable Huxley's evidence that prior to 6 October 1991 when he concluded his investigative duties, there was contact between Senior Constable Huxley and the learned coroner on four occasions only and none thereafter until he gave evidence. On the first occasion he drove the coroner and counsel assisting him to the deceased's house at Pelverata. There the coroner met Inspector John Johnston and Senior Sergeant Gyselman. Throughout Senior Constable Huxley took no part in discussions with the coroner, acting only as the driver. On the second occasion Senior Constable Huxley spoke briefly with the learned coroner about the wishes of a witness and on the third occasion he simply accompanied a witness to the learned coroner's chambers and left after introducing him. The final occasion upon which Senior Constable Huxley had contact with the coroner was when he delivered two letters to the coroner at the request of Senior Sergeant Gyselman. Senior Constable Huxley waited while the coroner signed the letters and after a short discussion about the need to interview a witness in Western Australia, he left the coroner's chambers.

55. No apprehension of bias reasonably arises out of that relationship between the learned coroner and Senior Constable Huxley nor the failure to disclose the existence of that relationship to counsel for the prosecutrix. It was too brief, too formal and its nature was not such that would give the learned coroner any impression about the character of the witness whose evidence he later accepted. Senior Constable Huxley's duties at the scene of the shooting on 16 July 1991 were confined to recording exhibits found and collected by Mr Hanuszewicz. His subsequent role as a member of the so called coroner's investigative team was a subordinate one in that he played no part in the interview of key witnesses. His contact with the coroner ceased many months before he gave evidence. It was only the fortuitous circumstance that he happened to have been with Mr Hanuszewicz when the latter claimed that he placed a piece of shot in the tree stump, that made him a material witness. That he would become such a material witness was not known to anyone until Mr Hanuszewicz gave evidence on 9 April 1992, six months after Senior Constable Huxley had left the coroner's investigation team.

56. On behalf of the prosecutrix reliance was placed on the observation made by the coroner about the work of Senior Constable Huxley. That observation, set out earlier in these reasons was:

"Before closing I want to pay tribute to my investigating

team of Senior Sergeant Gyselman and Detective Senior

Constables Huxley and Wilkinson. Theirs was a long onerous

and thankless task. They took on a monumental work load

which they tackled with true professionalism. I trust their

service records will be noted with my commendation for a task

well performed."

57. It was submitted that in the circumstances the only conclusion reasonably open from that observation was that prior to Senior Constable Huxley giving evidence the learned coroner had formed a favourable view of him.

58. Of course, the learned coroner's remark has no place in his reasons for the inquisition. It is neither fact nor reasoning. This observation could perhaps be made with respect to other remarks made by the learned coroner some of which are couched in subjective emotional terms which only serve to inflame those who do not share his view of the outcome of the coronial inquiry. However, I accept the submission of counsel for the Attorney-General that the hypothetical bystander, informed to the extent that this Court is informed, could only construe the remark as a reference to the work of Senior Constable Huxley. It could not properly be construed as a reference to his character for the learned coroner had no material upon which to base an opinion of Senior Constable Huxley's character. More likely than not, the hypothetical informed bystander would infer from his knowledge of the relationship between the coroner and Senior Constable Huxley that the learned coroner had been informed by another, perhaps Sergeant Gyselman, of the work done by Senior Constable Huxley.

59. I hold that the learned coroner's remarks about Senior Constable Huxley's work, his relationship with the coroner prior to him giving evidence and the failure of the learned coroner to disclose the existence of that relationship to counsel for the prosecutrix does not, in all the circumstances of this case give rise to a reasonable apprehension of bias. Ground 1 is not made out.

GROUND 2 - ERROR OF LAW IN MAKING TWO FINDINGS OF FACT

"The Coroner erred in law in that his finding that Sierra 4

killed the deceased in self defence, that the killing was

accordingly justified and therefore no order of committal

would be made were not based on logically probative material

AND FURTHER no reasonable tribunal of fact could have made

such findings.

Particulars:

(a) The findings that the shotgun of the deceased discharged

at or about the instant of his death; and

(b) The finding that the deceased was standing in an upright

position aiming the shotgun at the police snipers at the time

he was shot;

were not based on logically probative material AND FURTHER no

reasonable tribunal of fact could have made such findings."

61. The inquisition is the decision in respect of which review is sought. As already noted, the learned coroner was obliged to comply with the rules of natural justice in the conduct of the hearing that led to the making of that decision: Annetts v McCann (supra). It is well established that if the decision was one which no reasonable coroner could have made on the material before him, certiorari will lie to quash that decision for error of law. See Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; (1948) 1 KB 223. The Wednesbury principle was described by Lord Diplock in Council of Civil Service Unions and Ors v Minister for the Civil Service (1985) 1 AC 374 at 410 as the "irrationality" principle. His Lordship said:

"By 'irrationality' I mean what can by now be succinctly

referred to as 'Wednesbury unreasonableness' (Associated

Provincial Picture Houses Ltd v Wednesbury Corporation (1948)

1 KB 223). It applies to a decision which is so outrageous

in its defiance of logic or of accepted moral standards that

no sensible person who had applied his mind to the question

to be decided could have arrived at it."

62. Of course, if there is no evidence to support a decision, certiorari will be ordered not only because the decision would thus be unreasonable, but also because a decision not based on evidence constitutes a denial of natural justice as well as an error of law. See Sinclair v Maryborough Mining Warden and Anor [1975] HCA 17; (1974-1975) 132 CLR 473.

63. Although it has been held that "(t)here is no error in law simply making a wrong finding of fact" per Brennan J in Waterford v The Commonwealth of Australia [1987] HCA 25; (1986-1987) 163 CLR 54 at 77, it has been held that a decision may be unreasonable where there has been error in the findings of fact critical to that decision. See GTE (Aust) Pty Ltd v Brown (1986) 14 FCR 309. In The Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1979-1980) 44 FLR 41 approval was expressed at 65-68 of Lord Diplock's statement in R v Deputy Industrial Injuries Commissioner; Ex parte Moore (1965) 1 QB 456 at 488 that the decision must be based on material "which tends logically to show the existence or non-existence of facts relevant to the issue to be determined..." But in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 Mason CJ sounded a caution against the extension of superior courts' supervisory jurisdiction of review by endorsing later statements made by the House of Lords at 358-359, that:

"(C)ourts exercising judicial review should leave the finding

of facts to the public body appointed for that purpose by the

legislature except where the public body act 'perversely':

see Reg v Hillingdon London Borough Council; ex parte

Puhlhofer [1986] UKHL 1; (1986) AC 484 at 510, 518; see eg Broadbridge v

Stammers (1987) 16 FCR 296 at 300-301; Apthorpe v

Repatriation Committee (1987) 77 ALR 42 at 53-54. In this

context, 'perversely' signifies acting without any probative

evidence:"

64. Application of this principle led the learned Chief Justice to conclude at 359-360 that the court may review a finding of fact on the basis the finding was one that no reasonable person would have made, provided such fact constituted the decision. His Honour said at 359, "(b)ut if the finding does not constitute a 'decision', it is beyond review independently of such a 'decision'." Brennan J agreed with the reasons for judgment of the Chief Justice. Deane J took the same view although he expressed it in slightly broader terms basing it upon the requirement to act judicially. He said at 367-368:

"... (i)t was necessary that any findings of fact made by the

tribunal, upon which a reviewable 'decision' was based, were

supported by some probative material which was properly

before the tribunal. If a finding of fact was not so

supported, a 'decision' which was based upon it was invalid."

65. Although the Bond case turned upon the provisions of the Administrative Decisions (Judicial Review) Act 1977, s5(1)(f) which provides a ground of review if "the decision involved an error of law, whether or not the error appears on the record of decision", it may be that the scope for review of findings of fact at common law is not as wide as might previously have been thought to be case.

66. However, all counsel were agreed on the return of the order nisi, that if this Court was of the opinion that the findings referred to in ground 2 were findings that no tribunal of fact could have reasonably made, the inquisition was liable to be quashed and the order nisi made absolute.

THE FINDING THAT THE SHOTGUN OF THE DECEASED DISCHARGED AT OR ABOUT THE INSTANT OF HIS DEATH

67. The learned coroner accepted Constable Paul's evidence that simultaneously with the discharge of 1/C Constable M C Fogarty's rifle he saw powder smoke "emanating from the barrel of Gilewicz's shotgun." He said:

"Certainly I am satisfied on all the evidence that Joseph

Gilewicz did not fire at the police before Sierra 4 (1/C

Constable M C Fogarty) pulled his trigger. While I accept

that Sierra 1 (Constable Paul) saw the shotgun discharge, I

am not satisfied that such discharge was the result of any

deliberate act on the part of the deceased. It is equally

consistent with having been caused as an involuntary action

arising from being struck by the bullet from the rifle fired

by Sierra 4, particularly when one recalls the purpose and

effect of the hollow-pointed ammunition."

68. Constable Paul said that he was lying next to 1/C Constable M C Fogarty on the side of Hall's Track Road opposite the entrance to the deceased's driveway. Uphill, approximately 50 metres away and more or less straight in front of them, was the front door of the deceased's house. Constable Paul said that he saw the deceased walk from the back of his house and up the steps onto the small landing outside the front door. He said that the deceased stopped, turned and scanned the area from left to right. Constable Paul said that the deceased then looked quickly over his right shoulder and appeared to see him and 1/C Constable M C Fogarty. Constable Paul described how at the same time as he appeared to see them, the deceased turned to face them and brought his weapon up to the firing position. At this moment Constable Paul twice shouted "put the weapon down".

69. All of that evidence was corroborated by 1/C Constable M C Fogarty. No other person was able to see the deceased at that time. However, other officers' evidence corroborated the evidence of Messrs Paul and M C Fogarty that the former twice called out "put the weapon down".

70. Constable Paul said that he heard 1/C Constable M C Fogarty fire his weapon and simultaneously, observed what appeared to be powder smoke from the deceased's weapon. 1/C Constable M C Fogarty did not see that nor did he claim that the deceased discharged his weapon prior to him firing the fatal shot. There was evidence before the coroner to the effect that on discharge, 1/C Constable M C Fogarty's rifle would have lifted up slightly and the telescopic sight and the haze from the discharge of the missile from his rifle, would have obscured his view of any smoke which might have come out of the end of the deceased's weapon.

71. The submission put on behalf of the prosecutrix was in effect, that no reasonable coroner would have accepted Constable Paul's evidence about seeing the smoke from the end of the deceased's gun and infer therefrom that it was discharged because of the following matters:

Despite a search in the line of fire, no wad from a cartridge

discharged by the deceased's weapon was found.

Despite a search in the line of fire, no shot from a

cartridge discharged by the deceased's weapon was found apart

from the one in the stump to which reference has already been

made.

No police officer heard the discharge of any weapon except

that of 1/C Constable M C Fogarty, notwithstanding that a

number of such officers were located a short distance away

from 1/C Constable M C Fogarty.

Constable Paul did not say to anyone at the scene that the

deceased had fired his gun.

Constable Paul made a surreptitious visit to the T C Simpson

firing range to see what could be observed when standing in

the line of fire of a shotgun.

The deceased's gun did not always fire when the trigger was

squeezed.

72. The ballistics opinion evidence that the deceased's gun did not always fire when the trigger was squeezed is not probative of the issue for it was to the effect that each time the trigger was squeezed it might or might not discharge the wad and the shot.

73. The undisputed evidence before the learned coroner was that a wad from a cartridge of the size and type found in the deceased's weapon, would travel about 35 metres. Any wind might deflect it from the line of fire. Mr Hanuszewicz said that he looked for the wad and found one in the line of fire. However, this later proved to have come from a cartridge of a different size from the one in the deceased's gun. The learned coroner did not refer to this evidence or rather, absence of evidence in his reasons. However, the probative value of the absence of a wad is considerably diminished when weighed with other evidence given by Mr Hanuszewicz. He said that close to the house he located 12 fired No 4 shotgun cartridges but despite a search over a radius of about 50 metres, he and Constable Di Monda only found three wads. The following passage is taken from Mr Hanuszewicz's cross-examination:

"Does that not suggest to you because of the nature of the

country that you weren't able to locate all of the exhibits

that may have been there? ... That might be a possibility,

yes.

I mean to do a really thorough job on a place like that you'd

literally need a hundred people fanned out and doing an emu

bob standing a metre apart and walk (sic) very closely

through the area? ... Yes, that's correct.

And you didn't have that sort of resources did you? ... No."

74. The same kind of observation can be made about the absence of No 4 shot except for the single piece in the stump that Mr Hanuszewicz said he planted there. Mr Hanuszewicz's evidence was that despite a search of the area he was unable to find any more than two pieces of shot; one was No 2 size and the other was No 4 size. The latter was the one he said he later put in the tree stump. Mr Hanuszewicz also said that apart from some oxidised shot holes (indicating age) in some galvanised iron on the animal shed, he found no sign of shot on the trees, the bushes, the stump, the pens or anywhere else.

75. The evidence before the learned coroner was to the effect that there were about 190 pieces of shot in each cartridge shell. Thus, there must have been over 2,000 pieces of shot discharged from the twelve empty cartridges found near the house. Mr Hanuszewicz was unable to locate any of them or any sign of them except for the single piece of No 4 shot that he said he found and later placed in the stump. Although the learned coroner did not refer to this evidence or absence of evidence either, it substantially diminishes the probative value of evidence that no piece or pieces of shot were found in the line of fire and the strength of the submission that therefore it is unlikely that the deceased discharged his gun either when he was hit by 1/C Constable M C Fogarty's bullet or just before.

76. A number of police officers gave evidence that they heard the discharge of 1/C Constable M C Fogarty's rifle. None of them said that they also heard the sound of a shotgun discharge. On behalf of the prosecutrix, Mr Porter submitted that this evidence is inconsistent with the finding of the learned coroner that the deceased discharged his gun either just before or at the moment he was hit. There was evidence that there is a difference between the sound of a shotgun discharge and the sound made by the discharge of the rifle that 1/C Constable M C Fogarty was using. Mr Porter pointed out that the angles and distances between each listener and the two weapons varied making it more likely that if the gun had discharged as found by the learned coroner, one or more of them would have heard it. I accept that it is unusual that no one heard the shotgun discharge although of course, that sound would have been made at the same time as the sound from 1/C Constable M C Fogarty's rifle. 1/C Constable Chambers described the latter in the following terms:

"Yes, it is an all engulfing sound, I wasn't wearing my

hearing protection at the time and the sound of that rifle

absolutely fills the air with sound."

77. It must not be forgotten that in these proceedings there "is no error of law simply in making a wrong finding of fact" per Brennan J in Waterford v The Commonwealth (supra) at 77. The impugned finding of fact must be one which defies logic or reason. It cannot be said that having regard to the engulfing sound of the sniper's rifle, acceptance of Constable Paul's direct evidence of shot gun discharge defies logic or reason. To put the issue another way, the evidence that a number of police officers did not hear a shotgun discharge, considered either alone or in conjunction with the other matters relied upon by Mr Porter, is not so overwhelming that the only reasonable conclusion open is that the gun was not fired and that Constable Paul's evidence should be rejected.

78. This proposition applies to the submission on behalf of the prosecutrix about the probative effect of evidence that Constable Paul did not tell anyone immediately after the event that he had seen the deceased's weapon discharge. Mr Porter also submitted that the evidence that most of the police officers at the scene could not recall when they were told that the deceased had been about to fire on Messrs Paul and M C Fogarty nor by whom, together with the other matters on which the prosecutrix relied on this ground, demonstrates that the impugned finding was one that was not reasonably open. I reject that submission. The matters canvassed are proper matters to put to the tribunal of fact but insufficient to ground a review of that tribunal's findings.

79. Finally, I turn to the evidence of Mr Hanuszewicz that is relied upon in support of this ground. Mr Hanuszewicz said that within days of the fatal shooting he and Senior Constable Pearce from Ballistics were in their office when they were approached by Constable Paul. He said that Constable Paul asked them what could be seen if a person was standing in the line of fire of a shotgun. He said they decided that they would test fire a shot gun to find out and that he, Pearce and Constable Paul went on a surreptitious visit to the T C Simpson range where a shotgun was discharged in the direction of Constable Paul. Senior Constable Pearce and Constable Paul denied that such a visit took place.

80. The submission was that the only reasonable finding open to the learned coroner was that these events did occur and it so damages the credit of Constable Paul that it, together with the other matters relied upon on this ground, means that it was not reasonably open to the learned coroner to accept the evidence of Constable Paul with respect to the shot gun discharge. If the first limb of the submission is correct there would be a great deal of substance in the second. However, I do not accept that the first limb is correct.

81. Mr Porter's submission relied upon a covert tape recording made on 27 February 1992 by Mr Hanuszewicz of a conversation between himself and Senior Constable Pearce. Early in that conversation Mr Hanuszewicz referred to the covert visit to the rifle range and Senior Constable Pearce denied any knowledge of it. He said, "I have no idea what you're talking about." However, a little later in the conversation Senior Constable Pearce gave a clear impression that he did know what Mr Hanuszewicz was talking about and that there had been such a visit to the rifle range.

82. After Mr Hanuszewicz had given this evidence Senior Constable Pearce made an affidavit and gave evidence. In both, he maintained his denial of any visit to the range and claimed that he agreed with Mr Hanuszewicz's suggestion to the contrary in order to "defuse him from this state he'd got himself into ... to put him at ease because ... I was under the impression that the man wasn't healthy mentally." With respect to this explanation the learned coroner said (87):

"Clearly the change in attitude from an unqualified denial to

an apparent acceptance of the visit to the range having taken

place has caused me a lot of consideration. Looked at in

isolation of any other evidence that could corroborate that a

visit to the range did not occur, the explanation on its face

given by Senior Constable Pearce appears, whilst not

necessarily totally improbable, not only unconvincing but

almost puerile. The fact that the explanation was repeated

over and over again during the course of his evidence does

not add to its weight."

83. Notwithstanding that observation, the learned coroner rejected Mr Hanuszewicz's account of the visit to the range. He did so because of the following evidence:

1 Although Mr Hanuszewicz was uncertain of the exact date of

the visit to the range, he said that it was within two weeks

of the shooting viz, during the month of July. Independent

evidence established that between 1 and 26 July 1991 Senior

Constable Pearce was not at the Ballistics Section. During

that period he was seconded to the Police Academy and as part

of that secondment spent several days on a field training

exercise at Port Arthur.

2 It was Mr Hanuszewicz's belief that the visit to the range

occurred on a Wednesday. The ranger at the T C Simpson range

filed an affidavit. Its contents were not subject to

challenge. In it he deposed that Wednesdays 17, 24 and 31

July 1991 were his "rest days". He deposed that on those

days the range was locked and no one had access without a

key. He went on that there were only two keys, one he kept

with him and one he kept at his house.

84. The learned coroner was entitled to weigh those two pieces of evidence against the apparently improbable explanation given by Senior Constable Pearce of his conversation with Mr Hanuszewicz. In result, it was open to him to find that there was no visit to the range as claimed by Mr Hanuszewicz.

THE FINDING THAT THE DECEASED WAS STANDING IN AN UPRIGHT POSITION AIMING THE SHOTGUN AT THE POLICE SNIPERS AT THE TIME HE WAS SHOT.

85. There is no such finding of fact. This was conceded by counsel for the prosecutrix. However, it was submitted that such a finding is to be inferred from the whole of the learned coroner's reasons.

86. I shall assume for present purposes that the claimed inference can be drawn, in the sense that the learned coroner accepted the evidence given by Messrs Paul and M C Fogarty that the deceased was standing on his landing when he looked to his right and appeared to see them. The submission on behalf of the prosecutrix is that proper regard to the following makes that implied finding of fact one that was not reasonably open to the learned coroner:

1 Dr Brain's evidence of the path of travel of the bullet

through the deceased's body.

2 The position in which the deceased's arms must have been if

he was upright with the gun held in the firing position.

87. Dr Brain, the forensic pathologist, described how the bullet travelled through the body stopping just short of making an exit wound. He described the latter point to be minimally lower than the entry point and thus the path of travel very slightly downwards assuming the body was upright when the bullet entered it. It was submitted that as the landing was some distance above 1/C Constable M C Fogarty's position, the fatal shot could not have entered the deceased's body in the circumstances described by Messrs Paul and M C Fogarty. Further, it was submitted that if the deceased had been standing with his gun held in the firing position, his left arm would have been extended in front of the point of entry of the fatal bullet. By reason of the following matters the submission that it was not reasonably open to the learned coroner to find that the deceased was standing up and about to fire at the time he was shot fails:

(a) There is no evidence that the deceased was standing up

perfectly straight at the critical time. It is reasonably

possible that if he was about to fire down hill he was

leaning forward.

(b) Marks on the ground indicated that the body had fallen

off the balcony.

(c) There was no evidence to suggest that the deceased was

anywhere other than on his balcony and inferentially standing

up, immediately prior to the infliction of the fatal wound.

(d) The overwhelming evidence that Constable Paul twice said,

"put the weapon down" just before the shot was fired, leads

to the inference that at the critical time the accused was

standing up with the weapon in or moving into the firing

position.

(e) Dr Brain accepted that the path of travel through the

body did not necessarily reflect the angle of entry. There

was room for approximately 15 degrees of difference between

the angle of travel at the point of entry and the angle of

travel through the body even assuming no acute deflection by

bone or other solid material inside the body.

(f) There was no evidence of the angle of fire.

(g) Holding the gun in the firing position did not

necessarily mean that the bullet could not have entered the

body without hitting the left arm.

88. The error of law alleged in ground 2 of the order nisi is not made out.

"(3) The Coroner failed to exercise his jurisdiction, or

erred in relation thereto, and/or erred in law in that to

discharge his functions as directed by the Coroners Act 1957,

ss7(1), 12(1) and 16(1) he was:

(a) required to take into account the question of whether the

deceased's shotgun was discharged at or about the instant of

his death but refused or failed to do so;

(b) required to determine the issue of the deceased's stance

and general position at the time he was shot but refused or

failed to do so BY VIRTUE of his refusal or failure to

address and take into account:

(i) the evidence of Dr Brain as to the angle and line of

fire;

(ii) the question of any improbability of the descriptions

of the movements of the deceased's body immediately after

he was shot;

and any inferences to be drawn therefrom.

(c) required to determine the time of death but refused or

failed to do so BY VIRTUE of his refusal or failure to

address and take into account:

(i) the evidence of Dr Brain and M McCall as to the time of

death, in conjunction with;

(ii) the evidence of W Stubbings, W Eldridge and M McCall

as to the timing and sequence of shots heard;

(d) required to address and take into account the question

of:

(i) the movement by police officers of the deceased's body

from where it had fallen;

(ii) the position and state of the gun in which it was

allegedly found immediately after the shooting;

and any inferences to be drawn therefrom, but refused or

failed to do so."

90. In essence, ground 3 alleges that error occurred by a failure to exercise jurisdiction at all or in accordance with law. On behalf of the prosecutrix, Mr Porter submitted that by failing to discuss the evidence and make findings with respect to the matters referred to in pars(a), (b) (c)(ii) and (d), and by failing to make findings with respect to the matters in par(c)(i) as part of the reasoning leading to the inquisition, the learned coroner failed to exercise jurisdiction conferred on him by the Coroners Act 1957, ss7(1), 12(1) and 16(1) either in accordance with law or at all. Relevantly, these provisions are as follows:

"7 (1) Subject to this Act, where a coroner is informed

that a person has died within the State and

(a) there is reasonable cause to suspect that that person has

died

(i) a violent or unnatural death;

...

the coroner has jurisdiction to inquire into, and shall

inquire into, the manner and cause of that person's death.

12 (1) Where an inquest is held into the death of a person,

the coroner or the jury, as the case may be, shall find, if

the evidence so allows

(a) who the deceased was; and

(b) how, when, and where the deceased came by his death.

...

16 (1) If in the opinion of the coroner the evidence taken

at an inquest touching a death ... is sufficient to put a

person on trial for murder ..., or raises a strong or

probable presumption that a person is guilty of (that)

offence, he shall order that person to be committed to take

his trial for the offence before the Supreme Court ..."

91. It was not suggested that there had been an insufficient inquiry or that there was fresh evidence. The prosecutrix's point was that by failing to deal with the issues raised by the matters set out in this ground, the jurisdiction had not been properly exercised and the inquisition should be quashed.

92. This Court has a supervisory jurisdiction over coronial inquiries. In Ex parte Routledge (1943) 60 WN(NSW) 184 Jordan CJ, with whose judgment the other members of the court concurred, said at 184:

"... a superior court has a supervisory jurisdiction over the

inquisition, which is exercisable if the court is satisfied

that the person acting as coroner had no jurisdiction, or if

the coroner misconducted himself, or for defects apparent on

the face of the inquisition, or if it appears that

insufficient inquiry was made, or that, since the inquiry,

facts have come to light which makes a further coronial

inquiry desirable."

93. In Ex parte the Attorney-General (1915) 15 NSWSR 355 the Chief Justice said at 357:

"But I think the principles applied in the English cases,

quite apart from the provisions of the English Coroners Act,

justify the court where it sees that for some reason or other

the result of a coronial inquiry already held has been

rendered nugatory through the absence of a sufficiently fully

inquiry, in interposing so that miscarriage of justice should

result through leaving the verdict intact."

94. In that case the court considered that the failure to hold a post mortem examination in a poisoning death was a ground for quashing the inquisition. The inquiry was insufficient. In Lang v Registrar-General of the State of Victoria [1950] VicLawRp 53; (1950) VLR 307 the court dismissed an appeal against an order quashing an inquisition on the grounds that it did not adequately describe the manner of death. Those cases were referred to by Crawford J in R v Smith; ex p S Mead A54/1975 in which case his Honour said that "... inquisitions by coroners, if not properly carried out, can be assailed."

95. No authority was cited for the proposition that an inquisition has not been properly held or held other than in accordance with law, because the coroner's reasons for the inquisition do not deal with every submission that was put to him or her. R v The Clerk of Assize of the Oxford Circuit (1897) 1 QB 370 and In the Matter of Culley 5 B and AD 230; [1833] EngR 133; 110 ER 777 are authority for the proposition that where the inquisition states facts that are inconsistent with the verdict or show no legal ground for it the inquisition should be quashed. In the former case Bruce J said at 373:

"It is quite true that the inquisition contains words which,

if they stood alone, would have been a good inquisition; but

those words cannot be separated from the words which precede

them, connected as they are by the important word

'therefore'. The inquisition professes to show the

particular facts under which the duty to fence or cause to be

fenced arose, and then says that because that duty was not

performed the defendants were guilty of a felonious act; but

it wholly omits to set out any facts from which such a duty

as that alleged would arise. Where an inquisition

condescends to particulars, and those particulars are

insufficient to disclose a legal duty, it may be quashed as

being bad on the face of it."

96. If a coroner gives reasons for his inquisition and decision to commit or not commit for trial, and those reasons only address matters peripheral to those decisions, or fail to deal with the fundamental issues touching and concerning those decisions, there may have been an insufficient inquiry. Accordingly if the evidence of the matters particularised in ground 3:

- is controversial and central to the inquisition or the

decision not to make an order of committal but not referred

to by the learned coroner;

- is overwhelmingly contrary to the principal findings of

fact upon which the inquisition or the decision not to make

an order of committal is based; or

- establishes that the inquisition or the decision not to

make an order of committal for trial is tainted with legal

error;

this Court should exercise its supervisory jurisdiction and

intervene.

97. The first factual matter arises out of the failure of the learned coroner to make a positive finding about whether the deceased fired his gun before he was shot or as he was shot. The learned coroner said:

"Whether or not Joseph Gilewicz fired his shotgun is

irrelevant to my contemplation of the action of Sierra 4 (1/C

Constable M C Fogarty) he has never suggested that the actual

act of firing ever formed any part of his contemplation to

shoot the deceased. He did not see or hear the shotgun

fire."

98. 1/C Constable M C Fogarty did not claim to have seen the deceased fire his gun at him. His evidence was that he fired the fatal shot because he believed that the deceased was about to fire at him and Constable Paul. The learned coroner was correct to observe that the deceased's discharge of his gun was not relevant for the purposes of the Criminal Code, s46. The only evidence of that discharge was given by Constable Paul. The learned coroner was entitled to accept that evidence but it was such that he was unable to determine the precise moment of discharge relative to the instant that 1/C Constable M C Fogarty fired his gun.

99. The second factual matter arises partly out of the evidence with which I have dealt already concerning the angle of entry of the fatal bullet and its path of travel through the body of the deceased and partly out of the evidence of Messrs Paul and Fogarty with respect to the movements of the deceased immediately after the bullet entered his body.

100. It was common ground that the lay of the land obscured the lower half of the deceased's body from the view of Messrs Paul and Fogarty while the deceased was standing on the landing. In his first affidavit, 1/C Constable M C Fogarty deposed that after firing the fatal shot, he saw the deceased "fall off the rear of the balcony". In his second affidavit he deposed "my first recollection is of a pair of boots falling down. I didn't actually see his body fall." In his evidence, Constable Paul said that as a result of the shot he saw the deceased "being propelled backwards" off the landing. Of course, the topography would have prevented 1/C Constable Fogarty from seeing the deceased's boots unless the shot turned him upside down in the air as he fell off the verandah. Although the learned coroner failed to deal with any of this evidence in his reasons, this failure does not vitiate the coronial hearing. In the context of all the evidence he received it was not critical to his decisions. Immediately after firing the fatal shot 1/C Constable Fogarty went into such a state of shock that he could not stand nor speak properly. It follows that the reliability of what he later said he saw immediately after the discharge of the fatal shot is questionable to say the least. The fundamental facts the coroner was entitled to find and did find were that the deceased was standing on his landing and that he was bringing his gun up to the firing position at the time he was killed. There was ample evidence of the position of the body immediately after the fatal shot was fired that the learned coroner could accept to make a finding that he was standing on the landing when the bullet hit him. There was no evidence to suggest that he was anywhere else at that time. The learned coroner's failure to refer in his reasons to this material and the evidence of the path of travel of the bullet through the body does not constitute an error of law.

101. The third factual matter concerns the time of death. The learned coroner found that the time of death was 7.54am. There was evidence to support that finding. There was other evidence that tended to show that the fatal shot had been fired 30 or so minutes earlier. With respect to this conflicting evidence, Mr Porter said to the learned coroner in his closing submission:

"In any event, I leave it on the basis that it may be a cause

for some concern as to the precise events leading up to his

death. Such questions arise out when were the shots fired?

(sic) Where was he when he fired them? And at what time did

he emerge from the house?"

102. The learned coroner discussed some of this evidence in making his finding. Counsel for the prosecutrix submitted with respect to this matter:

"(1) The learned coroner's discussion and finding appeared in

his written reasons after he had announced his formal

inquisition and therefore did not form part of the reasoning

process that led to its making.

(2) The learned coroner's failure to deal with all or

substantially all of the evidence concerning the time of

death constituted a failure to exercise his jurisdiction."

(1) There is no reason to suppose that the coroner's finding

with respect to the time of death was not in his mind when he

pronounced the formal inquisition. It appears in the written

reasons in chronological sequence with other events.

Although there was evidence from neighbours of the deceased

about the times they heard various shots, the submission that

the police evidence of the time of death was false involves

the proposition that a number of police witnesses lied on

oath about the time certain events occurred for some purpose

that was not identified to the learned coroner. Differences

between witnesses about the time events happened are a very

common feature of the curial process.

(2) There was no obligation on the learned coroner to deal

with every aspect of the evidence. The evidence of the

witnesses hearing shots at an earlier time than that given in

evidence by the police officers and the police records as

well as the coolness of the deceased's body to the touch of

the ambulance officer formed a small part of the total

evidence. Its nature was not such that the coroner's failure

to deal with it more fully than he did in his reasons

amounted to a constructive failure to exercise jurisdiction

as was submitted on behalf of the prosecutrix.

104. The fourth factual matter concerns the evidence of police officers moving the deceased's body from where it had fallen immediately after infliction of the fatal wound, and the position and state of the deceased's gun immediately after that time. Sergeants Petrie and Dyson told the learned coroner that they were the first two officers to approach the deceased after the fatal shot was fired. They described him as lying face downwards on the ground immediately below the verandah or landing. Sergeant Dyson said that he felt for a pulse but could feel none so he rolled the deceased over and tied both his hands behind his back. He then pulled the deceased a little way out from the house so he could be seen quite clearly. He told the learned coroner that he was concerned that the deceased might have been wired with explosives. To rebut criticism that he interfered with the scene following a fatal shooting, Sergeant Dyson told the learned coroner that safety was the primary aim of SOG officers in a situation such as the one in which they were then in. He said that apparently deceased persons had been known to make a last ditch attempt to seize and fire a weapon and that was why he pulled this deceased out from where he had fallen and handcuffed him. The learned coroner was told by Sergeant Petrie that the deceased's gun was lying on the ground within the reach of the deceased and broken open. Inside was a spent No 4 shotgun cartridge. To ensure that the deceased could not get the gun it was moved it out of his reach.

105. The ballistics evidence was that the gun could only be broken open by the trigger guard being pulled to the rear. In an affidavit tendered in evidence Senior Constable Schramm, ballistics expert, deposed:

"I examined the exhibit shotgun and found that if it was

allowed to drop under its own weight in such a manner that

the front of the trigger guard struck an external object the

weapon would open."

106. The learned coroner did not address any of these matters in his reasons but his failure to do so does not vitiate the coronial inquiry. An explanation, rational upon the face of it, was given for moving the deceased immediately after the fatal shot was fired. This matter was not of critical importance to the inquisition or the decision not to commit for trial. The evidence that the shotgun was broken open after the fatal shot was fired was an important matter because it related to the issue of whether the deceased appeared to be about to fire the gun at the time he was shot. If the gun was broken open at that time it is unlikely that he was holding it in the firing position and pointing it at the two police officers. The uncontradicted evidence of Mr Schramm provided an explanation for the gun being broken open during the course of a fall. It may be assumed that the learned coroner accepted that explanation, and consequently the evidence of the gun being open immediately after the fatal shot loses its significance. It follows that the learned coroner's failure to advert to that evidence does not amount to a constructive failure to exercise his jurisdiction.

GROUND 4 - ERROR OF LAW IN REFUSING TO MAKE AN ORDER OF COMMITTAL

"The Coroner failed to exercise his jurisdiction and/or erred

in law in that he based his decision not to make an order of

committal on an assessment of the whole of the evidence and a

determination of whether he was satisfied beyond reasonable

doubt as to the guilt of Sierra 4 (1/C Constable M C Fogarty)

rather than making a limited assessment of the available

evidence in order to determine whether or not a hypothetical

jury could be satisfied beyond reasonable doubt of the guilt

of Sierra 4."

109. With respect to this issue of self defence and the jurisdiction conferred by the Coroners Act, s16(1), the learned coroner said:

"The test to be applied as to whether the belief was both

honest and reasonable that he was acting in self defence is a

subjective one - that is that the authority hearing the

evidence should put themselves in the position of the

defendant to ascertain what he thought and the danger he

believed himself to be in. Whether in the circumstances as

he believed them to be the force he actually used was

reasonable is however an objective test - the test of the

reasonable man."

110. The opening words of the first sentence erroneously state the law of self defence. However, they are otiose to the paragraph and can be struck out. The rest of the passage correctly states the law.

111. Directing himself with respect to the nature and extent of his jurisdiction under s16(1) the learned coroner fell into error when he said:

"I am of the opinion I must make an assessment of the

evidence in order to determine whether or not to commit

Sierra 4 (1/C Constable M C Fogarty) for trial. This

decision has highlighted some of the important areas of the

evidence. Clearly I have only repeated a small portion of

the evidence that came from over one hundred and sixty

exhibits and 3,439 pages of transcript. My decision is not

based purely on what I have read out today but takes account

of all the evidence that has been given."

112. The learned coroner then assessed the evidence and concluded that the homicide was committed in self defence and was justified. He said:

"I believe that Sierra 4 (1/C Constable M C Fogarty) held an

honest and reasonable belief that he and his fellow sniper

were in immediate danger from the action of Joseph Gilewicz

raising a shotgun to a firing position and pointing it in

their direction. Under the circumstances I believe the force

he used to protect himself and Sierra 1 (Constable Paul) was

reasonable, albeit fatal. I accept he was acting in self

defence at the time and accordingly the shooting and killing

of Joseph Gilewicz was justified. I therefore decline to

make an order of committal."

113. That view of the evidence was an appropriate exercise of the jurisdiction conferred on the coroner by the Act, ss7(1) and 12(1), but the jurisdiction conferred by s16(1) is separate from that conferred by the other two subsections. Section 16(1) requires a coroner to consider if the evidence "is sufficient to put a person on trial for murder" or "raises a strong or probable presumption that a person is guilty of ... such offence."

114. At first blush, the provision of two tests for the exercise of one jurisdiction appears somewhat strange. The explanation lies in history. Prior to Act No 108 of 1974 the Justices Act 1959 also provided a "two tier test" for committing justices. Section 61 provided that if the evidence is "not sufficient" to put the defendant on trial he shall be discharged. Section 62 provided that if the evidence "is sufficient" or "raises a strong or probable presumption of the guilt" of the defendant he shall be committed to take his trial before the Supreme Court and in the meantime he shall be committed to gaol until trial or until (inter alia) he is admitted to bail. It seems that these different tests owe their origins to the Criminal Law Act (UK) 1826 which provided that in the case of a person against whom there was a strong or probable presumption of guilt, the order was committal to gaol pending trial. In the case of a person against whom there was "sufficient ground for judicial inquiry" into his or her guilt, the order was admission to bail. In Tasmania, as in most States of Australia there is now a single test for committing justices viz, whether the evidence is sufficient to put the defendant on trial. See Justices Act 1959, ss61 and 62.

115. However, the two tests remain in the Coroners Act, s16(1). They embody different standards. See Armah v Government of Ghana and Anor (1968) AC 192. These standards and the Armah case were discussed by the New South Wales Court of Appeal in Wentworth v Rogers and Weir (1984) 15 A Crim R 376. With respect to the strong or probable presumption of guilt test Glass JA effectively summarised the essence of Armah by saying at 383:

"Armah also determines the elements involved in the formation

of the opinion that the evidence raises a strong or probable

presumption of guilt. The magistrate is thereby directed to

'weigh the whole of the evidence put before him and decide

whether he - not a hypothetical jury - thinks it is probable

that the accused committed the offence', Armah (at 229 and at

253, 261)."

116. The relevant New South Wales legislation (the Justices Act 1902, s41(6)(b)) provided for both tests in terms indistinguishable for present purposes, from the Coroners Act (Tas) 1959, s16(1). The court held that the "sufficiency of evidence test" required the magistrate to consider whether, on the evidence, if believed, a reasonable jury could convict. This test involves no assessment of credit or weighing of the evidence by the magistrate: it is simply a question of whether, on the evidence presented, a reasonable jury could convict the defendant. See May v O'Sullivan [1955] HCA 38; (1955) 92 CLR 654 at 658.

117. In Wentworth, the court also held that if either test were satisfied then, pursuant to s41(6)(b) the magistrate's duty was to commit. The statutory obligation required a magistrate to determine whether a reasonable jury properly instructed on the law, could convict on the evidence presented and whether on his assessment of the evidence there was a strong or probable presumption of guilt. Glass JA illustrated the application of the two tests at 383 as follows:

"Further, I am satisfied that room exists for the application

of both tests having regard to the judicial construction

placed upon each of them. For example, a magistrate may

consider that the evidence is such that a jury accepting it

could properly convict although he, weighing it for himself,

does not consider that the defendant is probably guilty.

Conversely he could form the view the evidence is not capable

of generating satisfaction beyond reasonable doubt in the

minds of a reasonable jury although he, weighing it for

himself, is satisfied of guilt on the probabilities but not

beyond reasonable doubt."

118. Although I do not dissent from those views, in practical terms there will be few cases in which a magistrate will be satisfied that the defendant is probably guilty but there is insufficient evidence for a jury to convict. In an article, The Criteria Governing the Decision to Commit for Trial in Australia (1979) 3 Crim LJ, the author refers to the "yoking of two different types of criteria" (5) as simply confusing the issue. With respect this seems to be an appropriate comment. It is surprising that the Coroners Act, s16(1) was not amended at the same time as the Justices Act was amended to provide for one test namely, sufficiency of evidence.

119. However, for present purposes it is unnecessary to explore this matter further for clearly the learned coroner erred in that he did not consider whether the evidence was sufficient to put 1/C Constable M C Fogarty on trial.

120. Counsel for the respondents did not argue to the contrary but submitted that certiorari or other prerogative relief was not available to correct the error of law which tainted the decision not to make an order for committal for trial. The submission was put on two bases.

JUDICIAL REVIEW OF A DECISION NOT TO COMMIT FOR TRIAL

121. Counsel for the Attorney-General, Mr Proctor, submitted that the decision to make or not make an order of committal for trial was an executive act, not amenable to interference by prerogative writ. In Ex parte Cousens; re Blacket and Anor (1947) 47 SR(NSW) 145 at 146 Jordan CJ said with respect to the magistrates' function in committal proceedings:

"The latter function of magistrates is of an entirely

different nature. In relation to charges of offences which

they have no jurisdiction to try and dispose of, their

authority is not judicial; they do not determine whether the

accused is guilty or not guilty; they consider the evidence

adduced against him, and if they think that there is enough

to justify putting him upon his trial, they direct that he be

held, or bailed, for trial by a Court which has jurisdiction

to try him. This is essentially an executive and not a

judicial function; and although magistrates have been

exercising this authority for nearly 400 years, no instance

can be found of a superior Court having interfered with a

magistrate by certiorari or prohibition in his exercise of

this function: Cox v Coleridge (1822) 1 B and C 37."

122. The same court, differently constituted, followed Cousens in Ex parte Coffey; re Evans and Anor (1971) 1 NSWLR 434. In that case Herron CJ and Holmes JA cited with approval the passage from the judgment of the Chief Justice in Cousens that I have set out. However, in Whitlam v Sankey (1976) 2 NSWLR 570 Street CJ said that Coffey should be reconsidered, but Moffit P did not agree; perhaps not surprisingly as he was a member of the court in Coffey and there strongly supported the decision in Cousens. The other member of the court in Whitlam v Sankey Reynolds JA, agreed with Moffit P that Coffey and Cousens should not be reconsidered.

123. Whether committing magistrates are amenable to correction by prerogative writ was not an issue in Sankey v Whitlam and Ors (1979-1980) 142 CLR 1. However, Mason J (as he then was) took the opportunity to refer to what he described at 83 as the "long-standing controversy as to the availability of common law prohibition and certiorari to a magistrate hearing committal proceedings." His Honour went on to say:

"Supreme Courts in New South Wales and Victoria have held

that the writs do not lie (Ex parte Cousens; re Blacket

(1947) 47 SR(NSW) 145 at 147; Ex parte Lyndon; re Cooper

(1957) 57 SR(NSW) 626; Ex parte Donald; re McMurray (1969) 89

WN (Pt 1) (NSW) 462 at 466, 467; Ex parte Coffey; re Evans

(1971) 1 NSWLR 434 at 449, 457 458; Phelan v Allen (1970) VR

219. The Supreme Court of Queensland has taken a different

view (Reg v Schwarten; ex parte Wildschut (1965) Qd R 276),

as has the Supreme Court of Ontario (Reg v Botting (1966) 56

DLR (2d) 25. In this conflict of authority my preference is

for the view that prohibition will lie to a committing

magistrate to correct for want or excess of jurisdiction.

Although it has been said that committal proceedings are

ministerial (Ammann v Wegener [1972] HCA 58; (1972) 129 CLR 415 at 435-436),

it should now be recognised affirmatively that a magistrate

hearing committal proceedings has, within the meaning of

Atkin LJ's observations in R v Electricity Commissioners; ex

parte London Electricity Joint Committee Co (1924) Ltd (1924)

1 KB 171 at 205, authority to determine questions affecting

the rights of subjects and that he has a duty to act

judicially. It is his function to determine whether there is

a prima facie case against the defendant sufficient to

warrant his being put upon trial. That determination is one

which materially affects the defendant because it exposes him

to trial upon indictment and to a deprivation of his liberty

pending trial. There can be no doubt that in arriving at his

decision the magistrate is bound to act judicially in the

sense that he must observe certain standards of fairness

appropriate to be applied by a judicial officer."

124. In Wentworth v Rogers and Weir (supra) Huckley JA took the opportunity at 378 to express the view (obiter dictum) that Cousens was wrongly decided. Glass JA took the contrary view at 386 and the other member of the court expressed no view about the matter at all.

125. In Waterhouse v Gilmore and Ors (1988) 12 NSWLR 270 Hunt J expressed his obiter opinion at 275 that notwithstanding the opinions of Street CJ and Mason J (as he then was), the position in New South Wales was that a magistrate's decision whether or not to commit for trial is not reviewable by way of prerogative writ.

126. This is what the New South Wales Court of Appeal said about the issue in R v Grassby (1989) 15 NSWLR 109 at 118:

"In considering whether a magistrate does have the power to

stay committal proceedings permanently, it is important to

emphasise that the committal proceedings which the magistrate

conducts are themselves very different in both substance and

form to a trial upon indictment. They are administrative

rather than judicial in nature: Ex parte Cousens; re Blacket

(at 146-147; 228-229). They are essentially different to

summary proceedings heard by a magistrate in the Local Court,

which obviously enough are judicial in nature and in relation

to which there is no doubt that the magistrate does have

power to prevent an abuse of process; R v Hush; ex parte

Devanny [1932] HCA 64; (1932) 48 CLR 487 at 515. That distinction between

an administrative inquiry and a judicial proceeding has

continued to be maintained in relation to committal

proceedings ever since the decision in Cousens' case,

notwithstanding the dissenting views of Street CJ in Connor v

Sankey (1976) 2 NSWLR 570 at 580-592 and notwithstanding the

ultimately inconclusive views of Mason J in Sankey v Whitlam

(1978) 142 CLR 1 at 83-84 to the same effect: see, eg

Attorney-General (NSW) v Mirror Newspapers Ltd (1980) 1 NSWLR

374 at 385 and Wentworth v Rogers (1984) 2 NSWLR 422 at 434;

see also Ammann v Wegener [1972] HCA 58; (1972) 129 CLR 415 at 420, 435-436

and Spautz v Dempsey (1984) 1 NSWLR 449 at 454-459."

127. On appeal to the High Court, reported sub nom Grassby v R [1989] HCA 45; (1989-1990) 168 CLR 1, all the members of the court which included Mason CJ agreed with the reasons of Dawson J insofar as they are relevant to the present matter. Dawson J delivered an illuminating history of committal proceedings which commenced with the proposition that "it has consistently been held that committal proceedings do not constitute a judicial inquiry but are conducted in the exercise of an executive or ministerial function." Dawson J said that the explanation for that proposition is "largely to be found in history" and having traced that history, adhered to the proposition that the decision to commit for trial is an administrative act. But his Honour left uncertain the question whether by reason of this fact certiorari would not issue. He said at 15:

"As Gibbs J pointed out in Ammann v Wegener (1972) 129 CLR at

436, it does not follow that because a magistrate is not

exercising judicial functions he cannot be said to sit as a

court. It is common enough for courts which are not subject

to constitutional restraint to exercise administrative

functions. Moreover, whilst not required to make a judicial

decision, the magistrate was no doubt bound to act judicially

in arriving at a result, that is to say, he was bound to act

justly and fairly. There is controversy whether the

existence of that duty, coupled with the nature of the

function performed by the magistrate, is sufficient to

subject him to prohibition and the question must still be

regarded as undecided. In Sankey v Whitlam (1978) 142 CLR 1

at 83 Mason J thought that such a result did follow, but the

other members of the Court went no further than to affirm the

availability of declaratory relief in a proper case."

128. In R v Schwarten; ex parte Wildschut (1965) Qd R 276, the Full Court of Queensland made absolute an order nisi for prohibition against a magistrate with respect to the conduct of committal proceedings. In that case the respondent magistrate purported to continue committal proceedings that had been commenced by another magistrate. The proceedings were adjourned pending the application for an order nisi. The court observed that as the proceedings had not concluded, certain different events were all possible outcomes of the proceedings, only two of which were committal for trial and discharge. The other possible outcomes included the magistrate dealing with a minor offence established by the evidence given at the committal hearing. The judgment of the court noted that although committal proceedings were "purely ministerial if they were carried to their conclusion in committal or discharge" (283), but observed that in other respects it was difficult to state that the ministerial power did not merge in the judicial power and accordingly the order was made absolute. Cousens' case was not referred to but as I understand the judgment, it may be that had the impugned conduct been the decision to discharge or commit for trial, the order nisi might have been discharged.

129. In R v Nicholl and Anor (1973) 21 FLR 469, the Full Court of the Supreme Court of the Australian Capital Territory discussed the issue but left it an open question.

130. It appears that in Victoria it is still accepted that certiorari does not lie to quash a decision in committal proceedings to either commit or discharge a defendant. See Brygel v Stewart-Thornton [1992] VicRp 70; (1992) 2 VR 387 at 390. With respect to this question, J D Phillips J, said that this is the accepted position in Victoria following Cousens, Coffey and other cases to which I have referred. He went on at 391:

"For present purposes, there is no need to explore the

question and I simply proceed upon the footing that authority

dictates that certiorari is not available to the plaintiff

here in relation to the decision that he stand trial on the

charges preferred against him." See also Byrne v Baker

[1964] VicRp 57; (1964) VR 443, Phelan v Allen [1970] VicRp 28; (1970) VR 219.

131. In Western Australia there is authority that certiorari will lie to intervene in committal proceedings. See Re Harlock; ex parte Robinson (1980) WAR 260; R v Reilly (1990) 2 WAR 526. However, there appears to have been no discussion of principle in either case. Carter v Evans (No 2) (1990) 3 WAR 94 is a case in which declaratory relief was sought with respect to committal proceedings. Wallace J accepted that "the right to declaratory relief in the course of committal proceedings is not entirely denied" (97) and referred to Grassby and Sankey v Whitlam as authority for the proposition that committal proceedings are an executive or ministerial function.

132. In South Australia, the question was discussed but not decided in R v Kelly; ex parte Hoang Van Duong (1981) 28 SASR 271 at 272. In that case the Chief Justice referred to the observations of Mason J (as he then was) in Sankey v Whitlam (supra) and observed that if declaratory relief may be granted in an appropriate case in relation to committal proceedings, it would seem to be no more than a technicality to deny relief by way of certiorari. In R v Harry; ex parte Eastway (1985) 39 SASR 203 the Chief Justice again raised the question but did not find it necessary to decide it. The matter finally fell for resolution in Clayton v Ralphs and Manos (1987) 45 SASR 347. In this case the Full Court of the Supreme Court held that committal proceedings are in principle amenable to judicial review by the Supreme Court. Jacobs J referred to the New South Wales decisions to which I have already made reference, the observations of Street CJ in Connor v Sankey (supra) at 590 and the views of Mason J (as he then was) in Sankey v Whitlam (supra) at 83-84. With respect to the nature of committal proceedings Jacobs J referred to a passage in the judgment of the court in R v Murphy [1985] HCA 50; (1985) 59 ALJR 682 at 686-687 which, in my respectful opinion, clearly shows that the basis upon which Cousens and Coffey were decided is no longer good law viz:

"As we have already mentioned, it has been said that the

function of a court in deciding whether a person charged

should or should not be committed for trial is non judicial.

In Huddart, Parker and Co Pty Ltd v Moorehead Griffith CJ

went further and said (at 357) that the function did not

involve the exercise of judicial power. These statements do

not, we think, fully reflect the character of committal

proceedings. The hearing of committal proceedings in respect

of indictable offences by an inferior court is a function

which is sui generis. Traditionally committal proceedings

have been regarded as non judicial on the ground that they do

not result in a binding determination of rights. At the same

time they have a distinctive judicial character because they

are curial proceedings in which the magistrate or justices

constituting the court is or are bound to act judicially and

because they affect the interests of the person charged:

Sankey v Whitlam (1978) 142 CLR 1 at 83-84. The procedure

followed on the hearing of committal proceedings is similar

to that followed on the hearing of judicial proceedings: ...

subject to the provisions of applicable Bail Acts, the

ordinary consequence of an adverse determination of them is,

as their name implies, the commitment to prison of the

accused until the sittings of the court before which he is to

be tried ... even though they are properly to be regarded as

non judicial in character, committal proceedings themselves

traditionally constitute the first step in the curial

process, possibly culminating in the presentation of the

indictment and trial by jury. They have the closest, if not

an essential, connection with an actual exercise of judicial

power: see Ammann v Wegener at 437; Barton v The Queen (1980)

[1980] HCA 48; 147 CLR 75 at 99."

133. The foregoing survey of cases on the issue of whether committal proceedings are amenable to certiorari appears to lead to this result:

(1) In New South Wales, such proceedings are not controllable

by prerogative writ because they are a ministerial or

executive function. However, it may be noted that the issue

has not directly fallen for determination since 1976 and

since that time, the proposition that certiorari is not

available to control committal proceedings has been the

subject of judicial criticism deserving of the greatest

respect.

(2) Certiorari is available to control committal proceedings

in Queensland, South Australia and Western Australia but in

the last mentioned State this question does not appear to

have yet been the subject of close judicial scrutiny.

(3) Certiorari is not available in Victoria in which State

the authorities appear to have proceeded on the pre 1971 New

South Wales basis viz, committal proceedings are not an

executive function.

(4) There is no relevant authority in this State.

134. There has been a great deal of growth and development in administrative law since 1976. That growth and development has left untouched the proposition that committal proceedings, and hence coronial proceedings pursuant to the Coroners Act, s16(1), are not a judicial inquiry but an exercise of an executive or ministerial function. See Grassby v R (supra). In the exercise of the executive power the magistrate is bound to act judicially and comply with the rules of natural justice. See Grassby at 15; R v Murphy (supra). The obligation to comply with the rules of natural justice arises out of the nature of the power being exercised. See Mahon v Air New Zealand [1983] UKPC 29; (1984) AC 808. In Ainsworth and Anor v Criminal Justice Commission [1992] HCA 10; (1991-1992) 175 CLR 564 it was held that the determinative factor for intervention by way of judicial review was the nature of the proceedings and not the characterisation of those proceedings. Prerogative relief was denied in Testro Bros Proprietary Limited v Tait [1963] HCA 29; (1963-1964) 109 CLR 353 upon the basis that the nature of the proceedings were not judicial. In Ainsworth, this basis for denying prerogative relief was expressly eschewed. With respect to this issue Mason CJ, Dawson, Toohey and Gaudron JJ said in their joint judgment at 576-577:

"Thus, what is decisive is the nature of the power, not the

character of the proceeding which attends its exercise. That

is not to deny that provision may be made permitting or

requiring procedures which are wholly inconsistent with a

requirement of procedural fairness. However, Testro Bros was

not concerned with provisions of that kind, and thus, so far

as the decision in that case was based on the character of

the proceeding, it is inconsistent with the law as it has

developed since the decision in Schmidt v Secretary of State

for Home Affairs (1969) 2 Ch 149 and since the decision of

this Court in Kioa v West [1985] HCA 81; (1985) 159 CLR 550."

135. The characterisation of the proceedings, not the nature of the power formed the basis of the decision in Cousens and in my respectful opinion that basis is no longer in accord with modern authority and that case should not be applied in this State. With respect to the basis for the decision in Cousens the authors of General Principles of Administrative Law (3rd edn) write at 252:

"It seems to proceed on the basis that, even though the

rights of the accused are affected, the magistrate, in

hearkening to the evidence and deciding whether it affords a

prima facie case, is acting in an 'executive' rather than a

judicial manner. No clear reason has even been given for

this characterisation of the function and one would have

thought that this hoary piece of traditionalism would have

died a natural death in the light of the growth of a less

dogmatic and more sophisticated approach to the question of

the nature of governmental functions in general."

136. I would apply the passage from the judgment of the court in Murphy at 686-687 and hold that the executive or ministerial function of committal proceedings is no bar to the supervisory jurisdiction of this Court by way of prerogative writ. To the extent that Cousens, Coffey and Connor v Sankey hold otherwise, I would not follow them for the principle on which they rest is no longer in accordance with modern authority in my respectful opinion. The exercise of the jurisdiction conferred by the Act, s16(1) is one which is capable of affecting rights in the sense described by Dawson J in Grassby at 15. The learned coroner's exercise of this jurisdiction was in error by reason of his failure to direct himself properly with respect to the relevant law governing its exercise.

137. Even if a coronial decision not to make an order of committal for trial is amenable to judicial review by way of prerogative writ, Mr Proctor submitted that certiorari could not issue in this case even though the decision is tainted with legal error. The general order nisi upon which these proceedings are based calls upon the learned coroner to show cause why a writ of certiorari should not issue "to remove into this Court and quash the inquisition on the inquest into the death of Joseph Gilewicz." The learned coroner is not called upon to show cause why a writ of certiorari should not issue to remove into this Court and quash the determination not to make an order committing 1/C Constable M C Fogarty for trial. The "inquisition" is the result, verdict, or, as the learned coroner expressed it, the "formal finding" made upon the inquiry or inquest. That is the only decision in respect of which certiorari may issue on these proceedings if the appropriate grounds are made out. The jurisdiction conferred by the Coroners Act, s16(1) is quite separate from that conferred by the Act, ss7(1) and 12(1), even though both are exercised upon the whole of the evidence given at the inquest.

138. With respect to the inquisition, the grounds relied upon in the general order nisi for the issue of a writ of certiorari have not been established. With respect to the decision not to commit 1/C Constable M C Fogarty for trial, the general order nisi does not authorise the issue of a writ of certiorari to quash that decision, even though it is tainted with legal error.

139. In addition to seeking a writ of certiorari to quash the inquisition, the general order nisi calls upon the learned coroner to show cause why a writ of melius inquirendum should not issue "to order a further and better inquiry" upon the grounds (inter alia) that the learned coroner erred in law in his decision not to commit 1/C Constable M C Fogarty for trial (ground 4). Although it was not argued, this writ may be available to order a better inquiry into the question of whether an order of committal for trial should be made without first quashing the decision of the learned coroner not to make such order. However it is unnecessary to consider this further. Counsel for the prosecutrix said that he had specific instructions to the effect that the prosecutrix did not seek any further order consequential upon an order quashing the inquisition and/or the decision not to make an order of committal for trial. Three and a half years have now elapsed since the death of the deceased and two and half years have passed since the coroner made his decision. The evidence at the coronial hearing does not indicate a strong or probable presumption of guilt of murder. Quite apart from any exercise of the jurisdiction conferred by the Coroners Act, s16(1), the Director of Public Prosecutions has always had a discretion to prosecute 1/C Constable M C Fogarty if he thought it appropriate to do so. No such proceedings have been instituted. The order nisi is discharged.