MATTER : An application pursuant to s 52 of the Coroners Act 1996 in respect of an inquest into the death of Daniel Paul Rolph by the State Coroner

Jurisdiction : CORONER'S COURT OF WESTERN AUSTRALIA

Coroners - Minister's application for declaration that findings are void - Whether impugned statements findings or comments - Whether impugned statements are findings of facts connected with the death but outside statutorily required findings - Representation of coroner desirable - Turns on own facts

Coroners Act 1996 (WA), s 21, s 25, s 52

Coroners Regulations 1997 (WA), Form 3

1 TEMPLEMAN J: The Minister for Health has applied under s 52 of the Coroners Act 1996 (WA) (the Act) for a declaration that what are said to be findings of a coronial inquest, should be declared void.

2 On 11 January 2007, at Floreat, Daniel Paul Rolph was shot and killed by a police officer whom he had attacked with a knife and who was attempting to apprehend him. At the time, Mr Rolph was suffering from a mental illness for which he had been treated in the public health system by Dr Patricia Margaret Shalala, a consultant psychiatrist.

3 In May and June 2008, the State Coroner conducted an inquest into Mr Rolph's death: and on 7 July 2008, the learned coroner published his report.

4 The report contained two passages, to which I will refer in due course, which the Minister for Health considers to be findings adverse to Dr Shalala, which the Minister seeks to have declared void under s 52(1) of the Act.

5 The application came before me on 16 October 2008. Having heard the submissions made by senior counsel for the Minister, I was not persuaded that the statements the subject of the application were 'findings' as that term is used in s 52 of the Act or that the statements were adverse to Dr Shalala. I therefore dismissed the application, with reasons to be delivered later.

6 I now publish my reasons for reaching that decision.

7 By s 22 of the Act, a coroner must hold an inquest if a death appears to be a Western Australian death and it appears that the death was caused, or contributed to, by any action of a member of the Police Force.

8 So far as relevant, s 25 of the Act provides as follows:

(1) A coroner investigating a death must find if possible -

(a) the identity of the deceased;

(b) how death occurred;

(c) the cause of death; and

(d) the particulars needed to register the death under the Births, Deaths and Marriages Registration Act 1998.

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

...

(5) A coroner must not frame a finding or comment in such a way as to appear to determine any question of civil liability or to suggest that any person is guilty of any offence.

9 It is clear from this provision that the Act draws a distinction between findings, which the coroner must make if possible, and comments, which the coroner may make on any matter connected with the death.

10 By s 27, the coroner is required to report annually to the Attorney General on the deaths which have been investigated in each year. In so doing, the coroner may make recommendations to the Attorney General on any matter 'connected with a death' which a coroner has investigated.

11 Section 52 of the Act provides:

(1) Any person may apply to the Supreme Court for an order that some or all of the findings of an inquest are void.

(2) The Supreme Court may declare that some or all of the findings of the inquest are void and may order the State Coroner -

(a) to hold a new inquest, or direct any coroner, other than the coroner who held the first inquest, to hold a new inquest; or

(b) to re-open (or direct another coroner to re-open) the inquest and re-examine any finding.

(3) The Supreme Court may only make an order if it is satisfied that -

(a) it is necessary or desirable because of fraud, consideration of evidence, failure to consider evidence, irregularity of proceedings or insufficiency of inquiry;

(b) there is a mistake in the record of the findings;

(c) it is desirable because of new facts or evidence; or

(d) the findings are against the evidence or the weight of the evidence.

12 It is clear that this section is directed only to 'findings'. This was so held by Murray J in Re Inquest into the Death of Romuald Todd Zak; Ex parte Zak [2006] WASC 186 where his Honour said:

In my view, the proper interpretation of s 52(3) is firstly that it is the 'findings' of the inquest which may be challenged by the application. In my opinion, those are the findings referred to in s 25(1) of the Act, distinguished from mere comment on matters not central to the Coroner's function [28].

13 The coroner published a report entitled 'Record of Investigation into Death'. That is the correct title, having regard to s 26(1) of the Act which requires a coroner (or the coroner's clerk) to keep a record of each investigation into a death 'in the prescribed form'.

14 By reg 6 of the Coroners Regulations 1997 (WA), a record of investigation into a death to be kept under s 26(1) of the Act is to be in the form of Form 3. That form requires the coroner to state his name, to name the person whose death has been investigated, to state the identity of the deceased person, the date and place of death, the cause of death and the circumstances in which the death occurred. These are the requirements of s 25(1) of the Act, the last mentioned being referable to s 25(1)(b). That is because the obligation to find, if possible, 'how death occurred' is an obligation to set out the circumstances in which death occurred: Atkinson v Morrow [2005] QCA 353 [13] - [14] (McPherson JA, with whom Cullinane and Jones JJ agreed).

15 The final section of the form makes provision for comments, in accordance with s 25(2).

16 The coroner followed that form in the present case, although he did not make any formal comments after setting out the circumstances in which Mr Rolph's death occurred.

17 The record of investigation into death commenced in the following way:

I, Alastair Neil Hope, State Coroner, having investigated the death of Daniel Paul ROLPH, with an Inquest held at Perth Coroners Court on 27-30 May and 3-6 June 2008 find that the identity of the deceased person was Daniel Paul ROLPH and that death occurred on 11 January 2007 at 20 Ferndale Street, Floreat as a result of Gunshot Wounds to the Chest in the following circumstances -

18 This part of the record therefore sets out the findings required to be made under s 25(1)(a)(c) and (d): the identity of the deceased, the cause of death, and the particulars needed to register the death, such as the time and place of death. These are matters which can be stated in a few words. That is not necessarily the case in relation to s 21(1)(b): how death occurred.

19 In anything other than the simplest cases, it will be necessary to determine the circumstances in which death occurred by reviewing the evidence adduced in the course of the relevant investigation. That is what the coroner did in the next sections of the record, in which he set out a comprehensive review of the evidence under a number of headings, and made three recommendations.

20 The coroner then set out his conclusions in the following terms (the numbering is mine):

1. On the afternoon of 11 January 2007 the deceased was at the Floreat skate park where he was seen to be behaving in a bizarre and worrying manner in the presence of children and other young persons. It would appear clear that his unusual behaviour at that time resulted from his long-standing and evolving mental illness and that at the time he was psychotic as a result of being non-compliant with his medication.
2. Police officers were called to attend and they followed the deceased as he drove away from the skate park and to his family home.
3. At the family home the deceased drove the vehicle he was driving through a fence at the end of a carport and entered the house where he obtained a large knife.
4. Police officers followed the deceased and he came towards them wielding the knife.
5. The first officer, Senior Constable Tindall, backed quickly away from the deceased out of the house and fell into a swimming pool in the backyard.
6. The deceased subsequently stabbed Constable Ferguson with the large knife. Constable Ferguson attempted to ward off the blow with his left arm but the knife still penetrated into the area of his left shoulder causing a deep wound.
7. Constable Ferguson fired four shots in relatively quick succession, at least two of the shots were fired within an extremely short period of time. The deceased appears to have collapsed almost immediately and two of the shots struck him as he was falling.
8. It is clear that in the context of the stabbing which had just occurred, Constable Ferguson shot the deceased in self defence.
9. Prior to the incident occurring I accept that the police officers concerned could not have anticipated that the deceased would respond to what until then was a very minor incident by arming himself with a knife and threatening the officers or even stabbing one of them. In respect of the shots which were fired, it is clear that they were fired so closely together in time that a distinction between the individual shots may be artificial and I accept the submission made by Mr Trowell QC in this context that it would be unfair to distinguish between them.
10. In that regard I accept the evidence of Constable Ferguson and conclude that it would not have been reasonable to expect him to have counted shots, particularly as the shots were fired while the deceased was less than a metre away from him, had already stabbed him once with a knife and had acted in such a manner as to cause Constable Ferguson to believe that he could be stabbed again.
11. It is particularly tragic that the deceased, a person of notoriously good disposition and bright personality, should have died in such circumstances behaving in a way which was so foreign to his behaviour when well.
12. The fact that the behaviour of the deceased immediately before his death was a product of illness is demonstrated by the following eloquent description of him by his brother, Jason Rolph -

'Well, as far as a brother goes, I probably couldn't ask for a better brother. It's quite upsetting to, you know, have him start life as the guy he was, very - you know, he was the number one guy down the beach. Everyone liked him, everyone wanted to be around him, and then when his illness came on he still - he was still that guy, you know, but things were different, but he said to me - I said to him once, "I wish you never had this," you know. "I don't know why you've got it," and he said, "I've got it, so no one else I know has to have it". He said, "I'm meant to be tough so I can deal" - and I thought that was a very honourable thing to say, but someone very special was killed that day, not just because he was my brother.'

1. I find that the deceased was shot in self-defence.

21 In my view, the conclusions include a concise summary of the coroner's findings as to how Mr Rolph died and are therefore, to that extent, his findings for the purposes of s 25 and s 52 of the Act. I exclude par 11, which is clearly a comment: as is, I think, the second sentence of par 9. The fact that the shots were fired in quick succession repeats par 7, but the final part is a comment: 'it would be unfair ...' I exclude par 12 also, which is largely a comment by Mr Rolph's brother.

22 The 'findings' set out in the coroner's conclusions are a distillation from his review of the evidence contained in the earlier part of the record. That review contained findings about matters connected with Mr Rolph's death. However, there are many such matters which, while relevant to the investigation, do not form part of the circumstances of his death.

23 The Act appears to be based on the Coroners Act 1985 (Vic), which is in similar terms. The form prescribed in that jurisdiction by the Coroners Regulations 1996 (Vic) is to the same effect as our Form 3.

24 In Keown v Khan [1996] 1 VR 69, Callaway JA, with whom Ormiston and Batt JJA agreed, said the form:

... encourages discursive records that make it difficult to separate the coroner's findings about the matters mentioned in s 19(1) [s 25(1)], especially para (b) [(b)], from his or her discussion of the evidence. It might be better to provide for a concise statement of the findings, ie the ultimate conclusions, made under each paragraph of s 19(1) [s 25(1)], followed by such discussion of the evidence as the coroner considers necessary in order to explain those findings and then any comments under s 19(2) [s 25(2)]. Such discussion is the equivalent of the reasons that a court gives for its decision, but just as it is only the decision of a court and not its reasons that may be the subject of appeal, so it is the findings and not the discussion of the evidence that may be declared void under s 59 [s 52] (78). (footnote omitted)

I have inserted in [ ], the equivalent provisions in the Act.

25 It is clear from this passage that findings of fact made in the course of a discussion about the evidence given in an investigation are not necessarily 'findings' for the purposes of (in this jurisdiction) s 25 and s 52 of the Act.

26 Against that background, I turn to consider the impugned statements.

27 In the section of the record dealing with the circumstances of Mr Rolph's death, the coroner included a section under the heading 'The Medical Treatment of the Deceased'. There, the coroner referred to Mr Rolph's 'long history of mental illness' and to the diagnosis of his illness and the prescribed treatment.

28 The coroner referred to the fact that Mr Rolph had been reviewed by Dr Shalala on 23 August 2006. The coroner said:

The notes reveal that Dr Shalala believed that ideally the deceased should continue with the depot medication [ie injections] and his management would be best facilitated with an ongoing community treatment order. The notes however record as follows -

'But given his moving interstate most appropriate plan is to provide Daniel with a letter to treating doctor and supply of oral meds'.

29 The coroner then referred to a letter prepared by Dr Shalala and addressed to 'Dear Colleague' which was apparently intended to be given to any medical practitioner who attended Mr Rolph while he was interstate.

30 The coroner then noted that while Mr Rolph was interstate, he was 'not compliant with his medications'.

With the benefit of hindsight it seems likely that if the approach suggested as being ideal by Dr Shalala at the time of his [sic, her] appointment at 23 August 2006, that he should be managed by depot medication and a community treatment order, had been the approach taken on his return from Queensland, it is most unlikely that the deceased would have been psychotic on 11 January 2007 and the events which resulted in his death would not have taken place.

...

In my view the deceased certainly suffered from a mental illness requiring treatment and a community treatment order could have been made in accordance with the requirements of the Mental Health Act 1996 requiring his medication compliance to be closely monitored or requiring him to receive depot medication.

32 In his outline of submissions, senior counsel for the Minister submitted that these two statements

are 'findings' rather than 'comments' because they relate to the cause of the Deceased's death, in that it has been found that the death was caused as a consequence of, or contributed to, by a failure by the Deceased's treating psychiatrists to make the Deceased an involuntary patient.

33 At the hearing, counsel submitted that the statement in the first of the passages set out above, that

the events which resulted in [Mr Rolph's] death would not have taken place

was 'a direct attribution of cause'. Counsel submitted that death followed a failure to take the identified steps.

34 I do not accept these submissions. The coroner's duty is to make findings as to the circumstances in which a death occurred: 'how death occurred'. In the statements set out above, the coroner was saying, in substance, that if the circumstances had been different, Mr Rolph would not have died. That is not to say how Mr Rolph's death occurred, but rather, how, in the coroner's opinion, his death might have been prevented.

35 Furthermore, I cannot see that the statements contain any criticism of Dr Shalala. To say that, with the benefit of hindsight, steps could have been taken which would have prevented death from occurring is not to say that such steps should have been taken. Hindsight is hardly a basis for attributing blame. Further, it will be recalled that s 25(5) of the Act prohibits a coroner from framing a finding or comment in such a way as to appear to determine any question of civil liability.

36 My conclusion that the impugned statements are not findings within the meaning of s 52 of the Act is sufficient to dispose of the application. However, there are two further matters I wish to mention.

37 The first is that I expressed the view during the hearing that the impugned statements were comments. That was apparently the view taken by the coroner, as appears from the submissions prepared by his counsel, who was given leave to appear in circumstances to which I shall refer below. However, at the hearing, my attention was not drawn to the Regulations, or to the form prescribed for recording investigations under s 26(1) of the Act. That being so, I was not aware that the prescribed form made provision for comments and that the coroner had not included anything in the record under that heading.

38 In these circumstances, I think it might equally well be said that the impugned statements should not be regarded as comments, but rather as findings of facts connected with the death which might properly be the subject of comment under s 25(2) of the Act, but which fall outside the findings required by s 25(1).

39 The second matter to which I wish to refer is the fact that the coroner appeared by counsel.

40 At a directions hearing which preceded the substantive hearing, counsel instructed by the coroner sought leave to appear. There being no objection to that course, I directed counsel for the coroner to confer with counsel for the Minister in order to clarify the role to be played by counsel for the coroner and the extent of the submissions which might properly be made.

41 In Chief Commissioner of Police v Hallenstein [1996] VicRp 51; [1996] 2 VR 1, 6, Hedigan J heard an application brought under a provision in almost identical terms to s 52 of the Act at which his Honour permitted counsel to appear on behalf of the coroner whose findings were called into question.

The appearance by [counsel] on behalf of the tribunal appealed against raises the issue as to whether or not such representation is legally appropriate. The High Court of Australia in R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13 at 35-6 considered, and deprecated, the representation by counsel of the tribunal appealed against, at least to advance substantive argument, on the basis that to do so impugned the tribunal's apparent impartiality if the matter went back after review or appeal. Subsequently in this court, these aspects were revisited: casecit Custom Credit Corporation Ltd v Lupi [1992] VicRp 8; [1992] 1 VR 99 (Appeal Division); Anderson v Blashki [1993] VicRp 60; [1993] 2 VR 89. In Lupi, O'Bryan J (with whom Murphy J agreed) referred to the counter-balancing desirability of the court being assisted by argument advanced against the arguments put in support of the case of the party appealing or reviewing the present case, as did Southwell J in Secretary for Department of Health and Community Services v Gurvich [1995] VicRp 44; [1995] 2 VR 69. I am of the opinion that no difficulty arises - on the contrary, benefits to the court are derived - in the advancing of argument for the coroner, because no application for a re-opening of this inquest, or for a fresh inquest, is made. See also the observations of Brennan J (as he then was) in Fagan v Crimes Compensation Tribunal [1982] HCA 49; (1982) 150 CLR 666 at 681-2.

43 I respectfully agree with the approach taken by Hedigan J. In my view, it assists this court (as it did in this case) to have submissions from the coroner directed towards the true construction and application of the Act. Different considerations would apply if an applicant sought to have a coroner hold a new inquest or re-open the previous inquest. However, no such relief was sought in the present case.