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 : SUPREME COURT OF WESTERN AUSTRALIA

Citation : RE THE STATE CORONER; EX PARTE THE MINISTER FOR HEALTH [2008] WASC 250

Coroners - Inquest - Application to review - The character of an inquest under the Coroners Act 1996 (WA) - The nature of a 'finding' within s 25(1) - The nature and ambit of the 'findings' which a Coroner must make, if possible, under s 25(1) - The character of an application to the Supreme Court under s 52(1) - Whether a 'finding' within s 25(1) is different from a 'finding' within s 52 - What an applicant under s 52(1) must establish in order to satisfy the Supreme Court that the Coroner's 'findings' are against the evidence or the weight of the evidence

Coroners - Inquest - Application to review - Whether impugned statements in a Coroner's Report were 'findings' within s 25(1) of the Coroners Act 1996 (WA) - Whether the impugned statements were critical of a psychiatrist who had treated the deceased - Whether the impugned statements were against the evidence, or the weight of the evidence, adduced at the inquest - Whether it was open to the Coroner to conclude that the criteria in s 26 of the Mental Health Act 1996 (WA) were satisfied in relation to the deceased when he last consulted with a psychiatrist - Whether the Coroner failed to accord the appellant procedural fairness before making the impugned statements

Coroners Act 1996 (WA), s 4, s 19(1), s 22(1), s 25, s 44, s 52

Mental Health Act 1996 (WA), s 5, s 26, s 43(2), s 67(1)

Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596

Atkinson v Morrow [2005] QCA 353; [2006] 1 Qd R 397

Atkinson v Morrow [2005] QSC 92

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Domaszewicz v The State Coroner [2004] VSC 528; (2004) 11 VR 237

Doomadgee v Clements [2005] QSC 357; [2006] 2 Qd R 352

Hurley v Clements [2009] QCA 167

Keown v Khan [1998] VSC 297; [1999] 1 VR 69

Khan v Keown [2001] VSCA 137

March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506

Mijatovic v Legal Practitioners Complaints Committee [2008] WASCA 115; (2008) 37 WAR 149

Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72

Plover v McIndoe [2000] VSC 475; (2000) 2 VR 385

R (Middleton) v West Somerset Coroner [2004] UKHL 10; [2004] 2 WLR 800

R (Sacker) v West Yorkshire Coroner [2004] UKHL 11; [2004] 1 WLR 796

R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13

R v Doogan; Ex parte Lucas-Smith [2005] ACTSC 74; (2005) 193 FLR 239

R v HM Coroner for North Humberside and Scunthorpe; Ex parte Jamieson [1995] QB 1

Re Inquest into the death of Romuald Todd Zak; Ex parte Zak [2006] WASC 186

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1

Saraf v Johns [2008] SASC 166; (2008) 101 SASR 87

Walter Mining Pty Ltd v Coroner Hennessey [2009] QSC 102

WRB Transport v Chivell [1998] SASC 7002; (1998) 201 LSJS 102

2 BUSS JA: On 11 January 2007, a police officer shot and killed Daniel Paul Rolph (the deceased) at Floreat. The deceased had attacked the police officer with a knife while the officer was attempting to apprehend him.

3 The deceased had a serious mental illness. In 1998 he had been diagnosed as suffering from bipolar affective disorder. His mental illness became progressively worse, and at the time of his death he had been developing more psychotic features suggestive of schizophrenia and, possibly, schizoaffective disorder. For some time before he was killed, the deceased had been treated in the Western Australian public health system by Dr Patricia Shalala, a consultant psychiatrist.

4 In May and June 2008, the State Coroner conducted an inquest into the deceased's death. On 7 July 2008, he published his report. The report contains two passages which the appellant contends are 'findings' within s 52 of the Coroners Act 1996 (WA) (the Act) that are adverse to Dr Shalala. After the Coroner published his report, the appellant made an application under s 52 of the Act for the alleged findings to be declared void.

5 The application was heard and determined by Templeman J. His Honour was not persuaded that the statements in question were 'findings' within s 52 of the Act. In any event, he was not persuaded that the statements were adverse to Dr Shalala. The application was therefore dismissed.

6 The appellant filed an appeal notice out of time in respect of the dismissal of the application. It sought an extension of time and, at the commencement of the hearing, this court granted an extension.

7 The jurisdiction of a coroner in Western Australia is statutory. Section 4 of the Act provides that a rule of the common law that, immediately before the commencement of s 4, would have operated to confer a power or impose a duty on a coroner or a coroner's court ceases to have effect on and after the commencement of the Act.

8 By s 19(1), a coroner has jurisdiction to investigate a death if it appears to the coroner that the death is or may be a 'reportable death'. The expression 'reportable death' is defined in s 3 to include, relevantly, a

death that occurred in Western Australia that appears to have been caused or contributed to by an action of a member of the Police Force.

9 Section 22(1) provides that a coroner who has jurisdiction to investigate a death must hold an inquest if the death appears to be a Western Australian death and, relevantly, it appears that the death was caused, or contributed to, by any action of a member of the Police Force. Also, by s 22(1), an inquest must be held if the deceased was immediately before death a person held in care; it appears that the death was caused, or contributed to, while the deceased was a person held in care; the Attorney General so directs; the State Coroner so directs; or the death occurred in prescribed circumstances.

10 Section 25 provides, relevantly:

(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.

11 Section 44 makes provision for 'interested persons' to appear, or be represented by a legal practitioner, at an inquest. It reads, relevantly:

(1) An interested person may appear, or be represented by an Australian legal practitioner (within the meaning of that term in the Legal Profession Act 2008 section 3), at an inquest and examine or cross-examine witnesses.

(2) Before a coroner makes any finding adverse to the interests of an interested person, that person must be given the opportunity to present submissions against the making of such a finding.

(3) There may be prescribed a list of persons who are interested persons for the purpose of this section, but such a list is not a conclusive list of interested persons.

12 Section 52 confers jurisdiction on the Supreme Court in relation to the 'findings' of an inquest. By s 52:

(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.

13 The words 'find' and 'finding' appear, relevantly, in s 25, s 44 and s 52, and the word 'comment' appears, relevantly, in s 25. None of the words is defined in the Act.

14 The Act is based on and largely reproduces the Coroners Act 1985 (Vic) (the Victorian Act). The Victorian Act was introduced after a general review of the Coroners Act 1958 (Vic) undertaken by the Honourable Sir John Norris QC.

The State Coroner's report in the present case

15 In his report, the State Coroner examined the medical treatment which the deceased had received before his death:

As indicated earlier in these reasons the deceased suffered from a long history of mental illness and had been diagnosed with Bipolar Affective Disorder from 1998. More recent reviews in late 2006 were suggestive of an evolving schizophrenic illness with a differential diagnosis of Schizoaffective Disorder.

The deceased had been admitted to Graylands Hospital as an involuntarily inpatient on a number of occasions and had been closely monitored in the community through the AVRO Clinic on community treatment orders on a number of occasions.

At the time of his death the deceased was prescribed medication in the form of Lithium Carbonate (a mood stabiliser) and Risperidone (an anti-psychotic medication).

It is clear from the toxicological evidence and from the evidence of his brother, Jason Rolph, that the deceased was not compliant with his medications at the time of his death and had not taken any of his medications for days and possibly weeks.

It was clear from the history of the deceased that when he did not take his medications his condition would deteriorate and on numerous occasions when this happened he had become involved in violent or inappropriate behaviour, necessitating his involuntary admission to hospital.

The deceased had previously been given Risperidone Consta by depot-medication (fortnightly injections) which was a measure for ensuring compliance with his medications.

On 17 August 2006 the notes of the AVRO Clinic reveal that the deceased indicated that he wanted to stop the depot injections. He refused an injection that day and stated that he wanted to move to the eastern states to pick fruit.

The deceased's brother, Jason Rolph, gave evidence that he believed that the deceased's depot medication had particularly unfortunate side effects which impacted dramatically on his quality of life and caused him to, for example, sleep 20 hours each day. While it is difficult to determine precisely what was causing these problems I have some reservations as to whether these were in fact side effects of depot Risperidone. It is possible that some of the deceased's problems which Jason Rolph believed were side effects were in fact attributable to the deceased's evolving condition.

The deceased was reviewed by Dr Shalala on 23 August 2006.

The notes reveal that Dr Shalala believed that ideally the deceased should continue with the depot medication 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'.

Dr Shalala prepared a letter addressed to 'Dear Colleague' which provided information relating to the deceased's condition. The letter recorded his longstanding diagnosis of Bipolar Affective Disorder and emphasised the crucial importance of the deceased continuing to take his medication and abstaining from using substances in order to minimise the risk of relapse. It further noted that the deceased had a history of physical aggression when unwell. The letter continued, 'Should there be evidence of deterioration in Daniel's mental state, then it is likely to be in the best interest of Daniel and the Community that he is treated with the assistance of the Mental Health Act. Furthermore, given that he has chosen not to continue with his depot Risperidone, we would suggest that an increase in his oral Risperidone be considered'.

It would appear that while interstate the deceased was not compliant with his medications and an AVRO Clinic note dated 20 November 2006 recorded that fact.

The last appointment at which the deceased was seen at the AVRO Clinic was on 13 December 2006 when he saw Dr Shalala. At that stage the notes state that he 'Claims to be compliant with meds although seemed vague about doses. Says his father has been administering his meds'.

In the context of the fact that the deceased was repeatedly non-compliant with his medication and was suffering from a serious and evolving psychiatric condition with a lack of insight into his illness and associated non-compliance with medication, the decision to cease the depot Risperidone appears, at least, questionable (Coroner's Report 45 - 49). (original emphasis)

16 The statements challenged by the appellant appear next in the Coroner's report. I have highlighted the impugned statements:

With the benefit of hindsight it seems likely that if the approach suggested as being ideal by Dr Shalala at the time of his 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.

This case has highlighted dangers associated with ongoing community management of such patients in circumstances where their medication compliance is not closely monitored.

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. His past history had clearly demonstrated that when non-compliant with his medications he was likely to become psychotic and it was only a matter of time until either he suffered serious harm himself or he inflicted such harm on others (Coroners Report 49 - 50). (emphasis added)

17 The learned primary judge referred to s 25(1)(b) of the Act and the State Coroner's duty to find, if possible, 'how death occurred'. He said the phrase 'how death occurred' required the Coroner, if possible, to set out the circumstances in which death occurred [14].

18 According to the learned primary judge, in the impugned statements the Coroner was saying, in substance, that if the circumstances had been different, the deceased would not have died [34]. His Honour added:

That is not to say how [the deceased's] death occurred, but rather, how, in the coroner's opinion, his death might have been prevented [34].

His Honour concluded that the impugned statements were not 'findings' within s 52 of the Act [36].

19 In any event, the learned primary judge said he '[could not see] that the statements contain any criticism of Dr Shalala' [35]. His Honour explained:

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 [35]. (original emphasis)

Issues relating to the proper construction of the Act

20 Several issues relating to the proper construction of the Act require attention in determining the appeal. It is convenient to consider them before turning to the grounds of appeal. The issues are:

(a) What is the character of an inquest under the Act?

(b) What is the nature of a 'finding' within s 25(1)?

(c) What are the nature and ambit of the 'findings' which a coroner must make, if possible, under each of pars (a), (b), (c) and (d) of s 25(1)?

(d) What is the character of an application to the Supreme Court under s 52(1)?

(e) Is a 'finding' within s 25(1) different from a 'finding' within s 52?

(f) What must an applicant under s 52(1) establish in order to satisfy the Supreme Court in terms of s 52(3)(d) that the 'findings' are against the evidence or the weight of the evidence?

What is the character of an inquest under the Act?

21 An inquest under the Act is inquisitorial. It is an inquiry conducted by the coroner and not a proceeding between parties. Interested parties who appear at the inquest are not bound as between themselves by the coroner's findings. The standard of proof applicable to the findings is the balance of probabilities as explained in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. See Plover v McIndoe [2000] VSC 475; (2000) 2 VR 385 [18] (Balmford J); Domaszewicz v The State Coroner [2004] VSC 528; (2004) 11 VR 237 [81] (Ashley J); Hurley v Clements [2009] QCA 167 [25] (McMurdo P, Keane & Fraser JJA).

22 In Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596, 616, Toohey J set out the following passage from the judgment of Lord Lane CJ in R v South London Coroner; Ex parte Thompson (the judgment being reported only, it appears, in The Times, 9 July 1982, but quoted in Matthews P, Foreman JC (eds) Jervis on the Office and Duties of Coroners (10th ed, 1986) 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 facts. 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.

23 The investigative powers conferred on a coroner by the Act are consistent with this character of an inquest. The rules of evidence do not apply (s 41). If the coroner reasonably believes it is necessary for the purpose of an inquest, he or she may summon a person to attend as a witness or to produce any document or other material; inspect, copy and keep for a reasonable period any thing produced at the inquest; order a witness to answer questions; order a witness to take an oath or affirmation to answer questions; and give any other directions and do anything else the coroner believes necessary (s 46(1)). See also Plover [19].

What is the nature of a 'finding' within s 25(1)?

24 Section 25(1) of the Act is central to the coroner's inquisitorial function. It confers on the coroner who is investigating a death the jurisdiction and obligation, if possible, to find the identity of the deceased (s 25(1)(a)); how death occurred (s 25(1)(b)); the cause of death (s 25(1)(c)); and the particulars needed to register the death under the Births, Deaths and Marriages Registration Act 1998 (WA) (s 25(1)(d)).

25 The provisions of s 25(1)(a) - (d) are, relevantly, identical to the provisions of s 19(1)(a) - (d) of the Victorian Act.

26 In Keown v Khan [1998] VSC 297; [1999] 1 VR 69, Callaway JA (Ormiston & Batt JJA agreeing) analysed s 19(1)(a) - (d) of the Victorian Act. He said that the 'findings' which a coroner must make, if possible, under s 19(1)(a) - (d) are 'ultimate findings'; that is, 'decisions' as to the identity of the deceased, how death occurred, the cause of death and the particulars needed to register the death [12]. Later in his reasons, Callaway JA made the following observations as to the manner in which a coroner should set out his or her 'findings' in the context of the coroner's 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), 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) (Compare Chief Commissioner of Police v Hallenstein at 7, 10 and 21). 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 [21].

The provisions of s 19(2) and s 59 of the Victorian Act are, relevantly, identical to the provisions of s 25(2) and s 52 respectively of the Act.

27 Callaway JA also noted that it may be necessary, in a particular case, for a coroner to make more than one 'finding' in order to discharge his or her obligation under s 19(1)(b); that is, the obligation to find, if possible, how death occurred [14]. This point may also be made in relation to a coroner's obligation under s 19(1)(c) to find, if possible, the cause of death. See also Hurley [23].

28 In my respectful opinion, the reasoning and conclusions of Callaway JA as to the nature of a 'finding' within s 19(1)(a) - (d) of the Victorian Act are applicable to s 25(1)(a) - (d) of the Act. The 'findings' which a coroner must make, if possible, under s 25(1)(a) - (d) are ultimate findings or decisions. See also Hurley [20] - [22].

What are the nature and ambit of the 'findings' which a coroner must make, if possible, under each of pars (a), (b), (c) and (d) of s 25(1)?

29 By s 25(1)(a) of the Act, a coroner investigating a death must find, if possible, 'the identity of the deceased'.

30 The area of inquiry is confined to the obtaining and analysis of evidence which will enable the coroner to make a finding of fact as to the deceased's identity. Ordinarily, this finding will be straightforward and not attended by any dispute or controversy. It may, of course, occasionally be difficult and rarely be impossible to make the requisite finding. In these circumstances, a painstaking investigation and an analysis of medical and scientific evidence may have to be undertaken.

31 Section 25(1)(b) of the Act requires the coroner to find, if possible, 'how death occurred'.

32 In Keown, Callaway JA said in relation to the word 'how' in s 19(1)(b) of the Victorian Act [16] fn (36):

The word 'how' means, or at least includes, 'by what means'; see the findings in Ex parte Lange set out above and compare Ex parte Jamieson at 24. (Quaere whether the non-technical language of s 19(1)(b) is wider than the corresponding English provisions.) See also Freckelton, 'Causation in Coronial Law', (1997) 4 JLM 289 at 290 - 1.

33 In R v HM Coroner for North Humberside and Scunthorpe; Ex parte Jamieson [1995] QB 1, the English Court of Appeal ruled on the meaning of the phrase 'how, when and where the deceased came by his death' in s 11(5)(b)(ii) of the Coroners Act 1988 (UK) and in r 36(1)(b) of the Coroners Rules 1984 (UK). Sir Thomas Bingham MR delivered the reasons of the court. His Lordship said that the word 'how' in the phrase in question was to be understood as meaning 'by what means', and that the task of the coroner or, in the case of an inquest held with a jury, the jury was not to ascertain how the deceased died, which might raise general and far-reaching issues, but 'how ... the deceased came by his death' (24). This was a more limited question directed to the means by which the deceased came by his death (24).

34 In R (Sacker) v West Yorkshire Coroner [2004] UKHL 11; [2004] 1 WLR 796, the House of Lords decided that the word 'how' in the statutory provision and rule considered in Jamieson should now be interpreted, not as connoting 'by what means', but as bearing the broader meaning 'by what means and in what circumstances' [27]. The rationale for this change of interpretation was the honouring of the international obligations of the United Kingdom under the European Convention for the Protection of Human Rights and Fundamental Freedoms, as scheduled to the Human Rights Act 1998 (UK). See also R (Middleton) v West Somerset Coroner [2004] UKHL 10; [2004] 2 WLR 800.

35 In Atkinson v Morrow [2005] QSC 92, an application was made to the Supreme Court of Queensland to quash a coroner's decision requiring a police officer to give evidence at an inquest. Mullins J dismissed the application. Although it was not essential to her decision, her Honour considered whether the phrase 'how the death occurred' in s 24(1)(c) of the Coroners Act 1958 (Qld) should be given a broad or narrow construction. By s 24(1)(c), where an inquest into a death is held under the Act, it is for the purpose of establishing, so far as practicable, 'when, where and how the death occurred'. Mullins J expressed this view:

It is therefore not necessary to deal with the arguments on the construction of the word 'how' in s 24(1)(c) of the Act. If it were necessary to do so, in the context of the Act which provides for the first stage inquiry undertaken by the coroner to be directed at the cause of death and the circumstances of death and giving weight to the important public purpose served by an inquest, the expression 'how the death occurred' should not be given the unduly restrictive meaning of 'by what means the death occurred', but should be given the broad construction for which the respondent contends of 'by what means and in what circumstances the death occurred' [32].

36 An appeal from the decision of Mullins J was dismissed. See Atkinson v Morrow [2005] QCA 353; [2006] 1 Qd R 397. In the Court of Appeal of Queensland, McPherson JA (Cullinane & Jones JJ agreeing) distinguished Jamieson and held that the jurisdiction and obligation of the coroner under s 24(1)(c) was not limited to an inquiry into the means by which the deceased came by his death. Rather, the coroner's jurisdiction and duty was to inquire into all the circumstances attending a death or which might have caused it. His Honour distinguished Jamieson and the statutory provision considered in that case by the English Court of Appeal:

In my opinion the distinction apparently made by the Court on this point in Jamieson's case ought not to be followed in relation to the meaning of the phrases 'how the death occurred' and 'how the deceased came by his or her death' in ss 24 and 43 of the Queensland Act. The ruling in Jamieson was strongly influenced by the recent history of the relevant legislation since 1977 in England, which for this purpose is sufficiently recounted, together with the reasons for it, in paras 1 - 09 and 1 - 10 of Jervis on Coroners (12th ed, 2002) as well as in Jamieson's case itself. In this respect the Queensland Act of 1958 embodies the earlier provisions of the Coroners Act 1887 in England, but not the much more recent changes in the statutory provisions or their philosophy that resulted in the Court of Appeal decision in 1995.

...

One of the major differences that now exists in the English statute law, as it has been since 1977, compared to the earlier English Act of 1887 and the Queensland Act of 1958 is that those Acts provided or provide for the committal for trial of persons to be charged with murder or manslaughter or other specified offences. See ss 24(1)(d) and 43(2)(b) of the Coroners Act 1958 in Queensland and s 4(3) of the English Act of 1887. In that respect the coroner's jury in England functioned as a grand jury indicting for trial. It was with the prime purpose of removing statutory provisions and powers like these that the English legislation was adopted in 1977: see Jervis on Coroners s1 - 10 (12th ed). This no doubt helps to explain why the Court of Appeal in Jamieson's case in 1995 did not think it relevant to consider decisions given before that time. As can be seen, however, they remain relevant in interpreting the Queensland Act of 1958. My conclusion is that on the first question on this appeal those decisions confirm that the acting coroner was correct in concluding here that it was part of his function in conducting the inquest into the death of Mr O'Sullivan to inquire into all the circumstances attending that death or which might have caused it. In deciding to do so, he did not exceed the jurisdiction conferred by s 24(1)(c), or potentially under s 43(2)(a)(ii), or otherwise under the Act. This conclusion accords with the decision of the learned judge below in refusing the application to review the acting coroner's decision in this matter [10], [14].

37 The Coroners Act 1958 (Qld), which was considered by Mullins J and the Court of Appeal of Queensland in Atkinson, was repealed and replaced by the Coroners Act 2003 (Qld). Like the Act, the Coroners Act 2003 (Qld) is based on and largely reproduces the Victorian Act.

38 By s 45(1) of the Coroners Act 2003 (Qld), a coroner who is investigating a suspected death must, if possible, find whether or not a death in fact happened. Section 45(2) is relevantly identical with s 25(1) of the Act and s 19(1) of the Victorian Act.

39 In Doomadgee v Clements [2005] QSC 357; [2006] 2 Qd R 352, Muir J held that the scope of the inquiry under s 45 of the 2003 Queensland Act is extensive, and is not confined to evidence directly relevant to the matters listed in s 45(2) [28]. His Honour cited in support of that proposition the decision of Mullins J in Atkinson. A similar observation was made by McMeekin J in Walter Mining Pty Ltd v Coroner Hennessey [2009] QSC 102 [22].

40 The dictionary meaning of the expression 'how death occurred' is in what way or manner or by what means the death happened or took place. See The Macquarie Dictionary (4th ed, 2005) 694; The Shorter Oxford English Dictionary (5th ed, 2002) 1279.

41 However, 'how death occurred' in s 25(1)(b) of the Act must be construed not merely by reference to its dictionary meaning, but also in the context of the other provisions of s 25(1) and the Act as a whole. For example, the Parliament plainly intended that a finding of 'how death occurred' within s 25(1)(b) would be different from a finding of 'the cause of death' within s 25(1)(c).

42 In my opinion, s 25(1)(b) confers on the coroner the jurisdiction and obligation to find, if possible, the manner in which the deceased happened to die. This does not refer only to the means or mechanism by which the death was suffered or inflicted. It extends to the circumstances attending the death. In my opinion, a construction of s 25(1)(b) which entitles and requires the coroner to find, if possible, by what means and in what circumstances the death occurred reflects the public interest which is protected and advanced by a coronial investigation (especially an investigation into deaths where one or more of the conditions in s 22(1) of the Act are satisfied). Also, this construction is consistent with the decision of the Court of Appeal of Queensland in Atkinson on a comparable statutory provision.

43 Section 25(1)(c) of the Act requires the coroner to find, if possible, 'the cause of death'.

44 The coroner, in finding, if possible, 'the cause of death', is not confined or restricted by concepts such as 'direct cause', 'direct or natural cause', 'proximate cause' or the 'real or effective cause'. Similarly, a coroner is not confined or restricted to a cause that was reasonably foreseeable. See WRB Transport v Chivell [1998] SASC 7002; (1998) 201 LSJS 102 [20] (Lander J, Mullighan J agreeing).

45 In WRB Transport, Lander J said, in the course of considering the coroner's jurisdiction under s 12 of the Coroners Act 1975 (SA) to ascertain 'the cause or circumstances of the ... death of any person ... ':

The Coroner ... has to carry out an inquiry into the facts surrounding the death of the deceased to determine what, as a matter of common sense, has been the cause of that person's death. The inquiry will not be limited to those facts which are immediately proximate in time to the deceased's death. Some of the events immediately proximate in time to the death of the deceased will be relevant to determine the cause of the death of the deceased. But there will be other facts less proximate in time which will be seen to operate, in some fact situations, as a cause of the death of the deceased. That is a factual inquiry which only has, as its boundaries, common sense [21].

His Honour added that the coroner's jurisdiction to determine the cause of a deceased's death is in addition to his or her jurisdiction to determine the circumstances of the deceased's death [22] - [25]. See also Saraf v Johns [2008] SASC 166; (2008) 101 SASR 87 [18] - [19] (Debelle J).

46 Section 25(1)(c) does not, however, authorise a coroner to undertake a roving Royal Commission for the purpose of inquiring into any possible causal connection, no matter how tenuous, between an act, omission or circumstance on the one hand and the death of the deceased on the other. See R v Doogan; Ex parte Lucas-Smith [2005] ACTSC 74; (2005) 193 FLR 239 [28] (Higgins CJ, Crispin & Bennett JJ).

47 It will be necessary, in each inquest, to delineate those acts, omissions and circumstances which are, at least potentially, to be characterised as causing or a cause of the death of the deceased. This is to be undertaken by applying ordinary common sense and experience to the facts of the particular case. See March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506, 515 (Mason CJ), 522 (Deane J); WRB Transport [21]; Saraf [18] - [19]; Doogan [29].

48 A statement that a particular act, omission or circumstance did not cause a deceased's death is not a finding as to 'the cause of death'. See Keown v Khan [13]; Hurley [23].

49 By s 25(1)(d) of the Act, the coroner must find, if possible, 'the particulars needed to register the death under the Births, Deaths and Marriages Registration Act 1998'. See, in relation to the relevant particulars, s 48 of that Act.

What is the character of an application to the Supreme Court under s 52(1)?

50 A proceeding in the Supreme Court pursuant to an application made under s 52(1) of the Act is not an appeal by way of re-hearing. It is a limited review in relation to some or all of the 'findings' of an inquest. By s 52(2), the Supreme Court may declare that some or all of the findings of an inquest are void and may order the State Coroner, relevantly, to hold a new inquest or to re-open the impugned inquest. The circumstances in which the Supreme Court may make an order under s 52(2) are specified in s 52(3). See Khan v Keown [2001] VSCA 137 [16] (Phillips JA, Ormiston JA agreeing).

Is a 'finding' within s 25(1) different from a 'finding' within s 52?

51 In Keown v Khan, Callaway JA held that the 'findings' referred to in s 59 of the Victorian Act (the equivalent of s 52 of the Act) are the same as the findings referred to in s 19(1) of the Victorian Act (the equivalent of s 25(1) of the Act). His Honour's reasoning on this point was as follows:

The view that the findings referred to in ss 19 and 59 are the same accords with the natural language of the statute and with authority (Anderson v Blashki at 92; Chief Commissioner of Police v Hallenstein [1996] VicRp 51; [1996] 2 VR 1 at 3) [12].

52 Section 25(1) of the Act states exhaustively the jurisdiction of a coroner in relation to the ultimate findings or decisions which a coroner investigating a death is entitled and obliged to make, if possible. The ultimate findings or decisions under s 25(1) circumscribe the matters connected with the death (including public health or safety or the administration of justice) in respect of which the coroner may comment under s 25(2) of the Act. That is, the coroner's role under s 25(2) is ancillary to his or her role under s 25(1). See Doomadgee [25]; Walter Mining [23]. The natural and ordinary meaning of s 25 and s 52 of the Act, read together, and the case law on relevantly identical provisions in Victoria and Queensland, indicate that the 'findings' referred to in s 52 are the same as the 'findings' within s 25(1). See also Re Inquest into the death of Romuald Todd Zak; Ex parte Zak [2006] WASC 186 [28] (Murray J). If a proposed 'finding' within s 25(1) is adverse to the interests of an interested person, the coroner must comply with, relevantly, s 44(2) before making the finding. If a 'finding' within s 25(1) is made by the coroner then any person may apply to the Supreme Court under s 52(1) of the Act for an order that the finding is void.

53 I also agree with Callaway JA's observation in Keown v Khan [12] that a coroner may make many findings 'in the sense that he or she takes a view of the evidence or particular aspects of it', but they are not the 'findings' referred to in s 25(1) and s 52. 'Findings' within s 25(1) and s 52 of the Act are limited to ultimate findings or decisions as to the identity of the deceased, how death occurred, the cause of death and the particulars needed to register the death.

What must an applicant under s 52(1) establish in order to satisfy the Supreme Court in terms of s 52(3)(d) that the 'findings' are against the evidence or the weight of the evidence?

54 In Keown v Khan, Callaway JA noted that s 59(3)(d) of the Victorian Act (the equivalent of s 52(3)(d) of the Act) was included on Sir John Norris's recommendation. The basis for the recommendation was the existence of at least one case on the files of the Attorney General's office in which a finding appeared to be 'completely contrary to the weight of the evidence, though it could not be said that there was no evidence on which the coroner could base his finding: Norris Report, para 164' [20]. Callaway JA then said:

The ground that the findings are against the evidence and the weight of the evidence has also been the subject of judicial criticism but, in my respectful opinion, the criticism proceeds on a misunderstanding. All that was intended was that perverse findings might be set aside, ie findings for which there was no evidence or that no reasonable coroner could make [20].

55 Similarly, in Khan v Keown, Batt JA (Ormiston JA agreeing) pointed out that for the coroner's finding in that case relating to self-defence to be declared void as being against the evidence and the weight of the evidence, the applicant had to establish that it was perverse in the sense that it was a finding for which there was no evidence or that no reasonable coroner could make [28].

56 In my respectful opinion, the reasoning and conclusions of Callaway JA state the task which confronts an applicant under s 52(1) of the Act who asserts in terms of s 52(3)(d) that the 'findings' of a coroner are against the evidence or the weight of the evidence.

57 The mere fact that the evidence at the inquest reasonably supported possible findings different from the coroner's findings is not sufficient to justify the setting aside of the coroner's findings if those findings are also reasonably supported by the evidence. See Hurley [33].

1. The primary judge erred in law in finding, at [38], that the impugned statements (as defined below) were findings of fact connected with the death which fall outside the findings required by section 25(1) of the Coroners Act 1996 ('the Act'). The primary judge should have found that the impugned statements were findings of fact relating to how the death occurred within the meaning of section 25(1) of the Act.
2. The primary judge erred in fact and in law in finding, at [33] - [34], that the Coroner's [statement] that 'the events which resulted in [the Deceased's] death would not have taken place' was not a determination of how the death occurred.
3. The primary judge erred in law in finding, at [34] - [35], that the impugned statements contained no criticism of Dr Shalala, and that the lack of criticism furthered the conclusion that the impugned statements did not relate to how death occurred.
4. The primary judge erred in fact in failing to find that the impugned statements were against the evidence, or the weight of evidence presented at the Inquest.

(a) The Coroner's assertion that Dr Shalala could have imposed a CTO on the Deceased, accepted by the primary judge at [35], was wholly unsupported by the evidence; and

(b) The primary judge's acceptance, at [34], that if a CTO had been imposed, the Deceased's death could have been prevented was wholly unsupported by the evidence.

1. The primary judge erred in fact and law, in failing to find that it was necessary and desirable that the impugned statements be declared void.

59 The term 'CTO' referred to in the particulars to ground 4 is an acronym for a 'community treatment order' of the kind provided for by div 3 of pt 3 of the Mental Health Act 1996 (WA).

60 It is convenient to consider grounds 1 and 2 together.

61 Grounds 1 and 2 assert, in essence, that the learned primary judge was in error in deciding that the statements in the State Coroner's report which are challenged by the appellant were not 'findings' within s 25(1) of the Act.

62 As I have mentioned, the coroner's jurisdiction and duty under s 25(1)(b) of the Act is to find, if possible, 'how death occurred' and this involves finding by what means and in what circumstances the death occurred. Also, the coroner's jurisdiction and duty under s 25(1)(c) is to find, if possible, 'the cause of death' and this involves a factual finding which is only circumscribed by the application of ordinary common sense and experience to the facts of the particular case. Further, the 'findings' within s 25(1) are ultimate findings or decisions, and it may be necessary, in a particular case, for the coroner to make more than one 'finding' in order to discharge his or her obligation under s 19(1)(b) or s 19(1)(c).

63 In the present case, the Coroner said that the deceased, at the time of his death, 'was psychotic as a result of being non-compliant with his medication' (Coroner's Report 52). The learned primary judge held, correctly in my respectful opinion, that this was a finding as to the circumstances in which the death occurred and, therefore, a 'finding' as to 'how death occurred' within s 25(1)(b).

64 In the first impugned statement, the Coroner said, relevantly, that if the deceased had been managed by depot medication and a community treatment order (CTO) on his return from Queensland, it was most unlikely that he would have been psychotic on 11 January 2007 (being the date of death), and the events which resulted in his death would not have taken place (Coroner's Report 49).

65 In the second impugned statement, the Coroner said, relevantly, that the deceased suffered from a mental illness requiring treatment, and a CTO could have been made 'requiring his medication compliance to be closely monitored or requiring him to receive depot medication' (Coroner's Report 50).

66 In my opinion, the first and second impugned statements, read together, constituted, in substance, an ultimate finding or a decision as to the circumstances in which the death occurred and, therefore, a 'finding' of 'how death occurred' within s 25(1)(b). In particular, the substance of the first and second statements was that the deceased was unlikely to have become psychotic, and the events which resulted in his death would not have taken place, if a CTO had been made on his return from Queensland, so that his compliance with his medication could be closely monitored, alternatively, he could be given depot medication.

67 I am satisfied that the learned primary judge was, with respect, in error in deciding that the impugned statements were not 'findings' within s 25(1).

68 Grounds 1 and 2 of the appeal have been made out.

69 Ground 3 asserts, in essence, that the learned primary judge was in error in deciding that the impugned statements were not critical of Dr Shalala even if, contrary to his Honour's view, those statements were 'findings' within s 25(1) of the Act.

70 If the first impugned statement is read in isolation from the second impugned statement and the balance of the paragraph in which the second statement appears, the introductory phrase 'With the benefit of hindsight' in the first statement suggests the Coroner was not being critical of the decision by Dr Shalala on 13 December 2006 not to make a CTO in respect of the deceased. In particular, it suggests the Coroner was not being critical of that decision because the phrase 'With the benefit of hindsight' connotes the occurrence of events between 13 December 2006 and 11 January 2007 that were crucial to the formation of the appropriate decision to make a CTO in respect of the deceased and to manage his treatment by closely monitoring his compliance with his medication, alternatively, by requiring him to receive depot medication.

71 However, there are two features of the first and second impugned statements which indicate the Coroner was in fact criticising Dr Shalala. In the first statement, he says that on 23 August 2006 Dr Shalala had suggested the appropriate course was to make a CTO in respect of the deceased and to manage his treatment by depot medication. In the second statement, he says that Dr Shalala could have made a CTO in respect of the deceased. When those two features of the statements are read together, as they must be, and in the context of the Coroner's report as a whole, a reasonable person would conclude the Coroner was asserting that Dr Shalala could, and should, have made a CTO on 13 December 2006 and, if such an order had been made, it is more likely than not that the deceased would not have been psychotic on 11 January 2007, and the events which resulted in his death would not have taken place.

73 Ground 4 asserts, in essence, that the learned primary judge erred in failing to decide that the impugned statements were against the evidence, or the weight of the evidence, adduced at the inquest.

74 It was contended, on behalf of the appellant, that the Coroner's assertion that Dr Shalala could have made a CTO in respect of the deceased, which was accepted by the learned primary judge [35], was unsupported by the evidence. Also, it was contended that the learned primary judge's acceptance, at [34], that if a CTO had been made, the deceased's death could have been prevented, was unsupported by the evidence.

75 Section 67(1) of the Mental Health Act reads:

A psychiatrist who has examined a person and believes, having regard to section 26, that the person should be made an involuntary patient may make a community treatment order in respect of the person.

76 Section 3 of the Mental Health Act provides that, unless the contrary intention appears:

(a) 'psychiatrist' means a medical practitioner whose name is contained in a register of psychiatrists prepared and maintained under s 17 by the Medical Board; and

(b) 'involuntary patient' means a person who is for the time being the subject of, relevantly, a CTO.

77 By s 26:

(1) A person should be an involuntary patient only if -

(a) the person has a mental illness requiring treatment;

(b) the treatment can be provided through detention in an authorised hospital or through a community treatment order and is required to be so provided in order -

(i) to protect the health or safety of that person or any other person;

(ii) to protect the person from self-inflicted harm of a kind described in subsection (2); or

(iii) to prevent the person doing serious damage to any property;

(c) the person has refused or, due to the nature of the mental illness, is unable to consent to the treatment; and

(d) the treatment cannot be adequately provided in a way that would involve less restriction of the freedom of choice and movement of the person than would result from the person being an involuntary patient.

(2) The kinds of self-inflicted harm from which a person may be protected by making the person an involuntary patient are -

(a) serious financial harm;

(b) lasting or irreparable harm to any important personal relationship resulting from damage to the reputation of the person among those with whom the person has such relationships; and

(c) serious damage to the reputation of the person.

78 The term 'mental illness' has the meaning given by s 4.

79 Section 43(2) of the Mental Health Act provides, relevantly and in essence, that a psychiatrist who has examined a person may, if he or she believes that, having regard to s 26, the person should be made an involuntary patient, make a CTO in respect of the person.

80 The objects of the Mental Health Act, as set out in s 5, include:

(a) to ensure that persons having a mental illness receive the best care and treatment with the least restriction of their freedom and the least interference with their rights and dignity;

(b) to ensure the proper protection of patients as well as the public; and

(c) to minimize the adverse effects of mental illness on family life.

81 Counsel for the appellant submitted in relation to the contention that the Coroner's assertion that Dr Shalala could have made a CTO in respect of the deceased, which was accepted by the learned primary judge [35], was unsupported by the evidence, in that:

(a) Of the witnesses at the inquest, only Dr Shalala was medically qualified and possessed the relevant psychiatric medical experience in relation to the requirements of s 26 of the Mental Health Act and the deceased's presentation to the Avro Clinic in August, November and December 2006. Neither Dr Stone nor Dr Wallman, who saw the deceased in November and December 2006 respectively, gave evidence at the inquest. Dr Shalala saw the deceased with Dr Wallman in August and December 2006.

(b) Dr Shalala said in evidence, in effect, that a CTO was not justified when she and Dr Wallman examined the deceased:

(i) on 23 August 2006, as his presentation did not justify involuntary treatment under s 43 of the Mental Health Act because he had agreed to continue treatment with oral medication; or

(ii) on 13 December 2006, because the deceased did not satisfy the statutory criteria set out in s 26 of the Mental Health Act.

(c) The deceased's brother, Jason Rolph, supported the conclusion that a CTO was not appropriate in December 2006. He gave evidence that at that time the deceased was willing to take medication orally and was not displaying signs of illness.

(d) Dr Wallman made an entry in the integrated progress notes (being part of the medical records relating to the deceased) dated 23 August 2006 which indicates that a CTO was not made at that time because the deceased intended to travel to Queensland with his brother.

(e) An entry in the integrated progress notes for 20 November 2006 indicates that on that date the deceased's father contacted the Avro Clinic by telephone and said the deceased had returned from Queensland and needed to be reviewed as soon as possible.

(f) As a result of that telephone call, on 20 November 2006 Dr Stone examined the deceased. It is apparent from the integrated progress notes that a CTO was not made at that time.

(g) An entry in the integrated progress notes for 13 December 2006 (being the date on which Dr Shalala and Dr Wallman examined the deceased) indicates that Dr Shalala and Dr Wallman did not form the belief that the deceased should be made an involuntary patient in accordance with the criteria in s 26 of the Mental Health Act.

(h) It is clear from the evidence of Dr Shalala and the inferences to be drawn from the integrated progress notes that the criteria in s 26 of the Mental Health Act were not satisfied in relation to the deceased at any material time. As a result, the treating psychiatrists could not make the deceased an involuntary patient.

(i) The learned primary judge erred in failing to find that the Coroner's assertion that a CTO could have been imposed with respect to the deceased was 'entirely against the evidence, and contrary to law', having regard to:

(i) the criteria under s 26 of the Mental Health Act;

(ii) Dr Shalala's evidence as to her and Dr Wallman's decision not to make the deceased an involuntary patient; and

(iii) the integrated progress notes dated 23 August 2006, 20 November 2006 and 13 December 2006, and the inferences to be drawn from them.

82 Counsel for the appellant then addressed the contention that the learned primary judge's acceptance, at [34], of the finding that if a CTO had been made the deceased's death could have been prevented, was unsupported by the evidence. Counsel submitted that the evidence at the inquest, in particular the evidence of Dr Shalala, revealed that non-compliance with the deceased's medication was not always a factor in precipitating a psychotic event, and that psychosis could result, even when the deceased was compliant with his medication, if he used cannabis. According to counsel, as the evidence at the inquest established that the deceased could have been psychotic even if a CTO had been imposed, the learned primary judge's acceptance of the finding that the deceased was psychotic due to non-compliance with his medication, and the implicit acceptance of the underlying assumption that the psychosis could 'most likely' have been prevented by medication, was unsound.

83 It was submitted on behalf of the appellant that the weight of the evidence at the inquest 'clearly establishes that the impugned statements cannot be supported and ought to be declared void'.

84 In my opinion, it was open to the State Coroner, on the evidence, to make the impugned statements. My reasons are these.

85 First, at all material times, the deceased had a serious mental illness. As I have mentioned, in 1998 he had been diagnosed as suffering from bipolar affective disorder. His mental illness became progressively worse, and at the time of his death he had been developing more psychotic features suggestive of schizophrenia and, possibly, schizoaffective disorder. He had been admitted to hospital involuntarily as a result of his mental illness on nine occasions. Also, he had been subject to a CTO on eight occasions, for a total period of approximately 42 months, between 20 September 2001 and 11 August 2006. At all material times, the deceased's mental illness required treatment. Between, relevantly, 13 December 2006 and 11 January 2007, his prescribed medication comprised an antipsychotic drug, Risperidone (2 mg in the morning and 4 mg at night) and a mood stabilising drug, lithium carbonate (500 mg in the morning and 1000 mg at night). See Dr Shalala's evidence at ts 497, 503 - 504, 522 - 523, 525 - 526, 532 - 534; Dr Shalala's report dated 21 May 2008; the deceased's medical file including the notes made as at June 1998, 19 December 2001, 20 November 2006, 13 December 2006.

86 Secondly, on 23 August 2006, the deceased was examined by Dr Shalala and Dr Wallman. Dr Wallman made notes of the consultation. These read, relevantly:

Doing well currently.

Denies any psychotic or mood Sr.

Doesn't like depot and wants to come off it, but denies s/e per se.

Compliant with oral meds

says he will continue to take these.

has put on some weight

walks regularly.

Planning to go to Eastern states w/ his brother Jason - next week. Intends to work there as a fruit-picker.

Presents as settled, appropriate, euthymic speech w, °FTD.

Limited content

Nil Psychotic

Insight - understands need for Rx but not fully accepting of illness

Imp: stable.

P - Dr Shalala believes that ideally (if Daniel was remaining in WA) his Mx would best be facilitated with ongoing depot + CTO.

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

It appears the crucial factor in the decision of the treating psychiatrists not to make a CTO in respect of the deceased on 23 August 2006 was his wish to travel to Queensland. This conclusion is supported by the following comment in a letter dated 23 August 2006 addressed to 'Dear Colleague' and signed by Dr Shalala and Dr Wallman:

In recent times, Daniel has been treated with a Community Treatment Order and depot medication, in addition to the oral medication he is prescribed, but his CTO recently expired on 11th August 2006, and following our review today 23rd August 2006, a further CTO was felt not to be indicated given Daniel's imminent interstate move. Daniel also is not keen to continue with depot medication, the last injection of his Risperidone Consta 50mg fortnightly having been given on the 18th August 2006.

On our review today, Daniel was well, with no evidence of affective or psychotic relapse. His insight was partial, as he appears not to fully accept the fact that he has a long-term mental illness but does believe that he needs ongoing medication (in oral form).

Also, Dr Shalala said in evidence at the inquest that 'other things being equal', as at the end of August 2006, if the deceased had been remaining in Western Australia she would have preferred to have made a CTO in respect of him and to have treated him with depot medication (ts 519).

87 Thirdly, there was evidence that the deceased's mental state deteriorated after 23 August 2006. The medical notes reveal that on 20 November 2006 the deceased's father telephoned the Avro Clinic. He said the deceased had returned from Queensland and he was concerned that the deceased may not be complying with his medication and may be showing 'signs of relapse'. He requested that the deceased be reviewed as soon as possible. On that date, Dr Stone examined the deceased as an emergency patient at the Avro Clinic. Dr Stone made these notes:

Rispendone ... Probably not taken for > 1/52

...

Pt is unaware of any problems

Thought Mild/Mod disorder with rather odd responses at times.

...

Insight None shown

Judgement Impaired.

Dr Stone also recorded that the deceased 'declines depot' and that his father had given a history of 'disorganisation, and odd responses' by the deceased. Accordingly, there was evidence that as at 20 November 2006 the deceased was probably not taking his medication, was refusing depot medication, was showing no insight and had impaired judgment.

88 Fourthly, on 13 December 2006, Dr Shalala and Dr Wallman examined the deceased. He reported feeling well. It was noted that the deceased had been educated in relation to the importance of complying with his medication and abstaining from the use of illicit substances. Significantly, it was also noted that the deceased claimed to be complying with his medication but 'seemed vague about doses', and that:

[N]oncompliance will result in CTO and depot Rx.

It was open to infer that, as at 13 December 2006, Dr Shalala and Dr Wallman were of the view that the criteria under s 26 of the Mental Health Act for making a CTO in respect of the deceased were satisfied apart from the question of his compliance with his medication. This inference was open on the basis of Dr Shalala's belief, as at 23 August 2006, that if the deceased was not travelling to Queensland then his treatment would best be facilitated by the making of a CTO and the administration of depot medication; the deterioration in his condition as at 20 November 2006; and the view of Dr Shalala, as at 13 December 2006, that if the deceased did not comply with his medication then a CTO would be made and depot medication given.

89 Fifthly, Dr Shalala gave evidence at the inquest on the issue of non-compliance by a person in the position of the deceased with a prescribed medication regime. The following exchanges occurred between counsel assisting the Coroner and Dr Shalala:

Ms Zempilas: But what about as a treating psychiatrist if someone is agreeing to treatment but you have very little faith that they are actually going to take that treatment?

Dr Shalala: The circumstances do occur, in which case if I had little faith in it I would initiate a CTO.

...

Ms Zempilas: But surely at that stage his history strongly suggested to you that it was not likely he would continue taking his medication quite willingly?

Dr Shalala: We have to always travel hopefully with patients like this. We can accept a lot of times there will be relapses, but then there will also be long periods in which people are compliant with the help of the family members (ts 519 - 520).

90 Sixthly, there was evidence to support the Coroner's statement that the deceased's history clearly demonstrated that, when he was not complying with his medication, he was likely to become psychotic, and it was only a matter of time until he suffered serious harm himself or he inflicted such harm on others. See the correspondence in the medical file at pages 199 - 200, 225, 227; the progress notes in the medical file at pages 59, 61 - 62, 67 - 68, 86 - 88, 99 - 102, 105 - 106; the evidence at ts 513, 523 - 527, 530 - 531.

91 Seventhly, it was a question of fact whether or not at the material time the deceased was likely to comply with his medication. This question could be determined by the Coroner. It was not a question which could only be answered by a psychiatrist or a person with medical qualifications. It was open to the Coroner to conclude, on the basis of the deceased's history, that as at 13 December 2006 the deceased lacked insight into his mental illness and was unlikely to be complying with his medication. There was ample evidence that on numerous previous occasions the deceased had not taken his medication and, for that reason, CTOs had previously been made in respect of him. See the correspondence in the medical file at pages 199, 202, 212, 213, 225, 227, 232; the progress notes in the medical file at pages 47 - 53, 57, 59 - 60, 63 - 64, 71 - 72, 76 - 78, 81 - 82, 91 - 92, 94, 97, 99, 106 - 107, 115 - 119, 123, 125 - 127; the evidence at ts 506 - 507, 513 - 521.

92 Eighthly, on the basis of the matters set out at [85] - [91] above, it was open to the Coroner to conclude that it was likely that if the deceased had been managed by depot medication and a CTO on his return from Queensland, it was most unlikely that he would have been psychotic on 11 January 2007, and the events which resulted in his death would not have taken place.

93 Ninthly, it is true there was evidence that non-compliance by the deceased with his medication was not always a factor in precipitating a psychotic event, and that psychosis could result if the deceased used cannabis, even though he was complying with his medication. However, there was evidence at the inquest that an analysis of the deceased's blood taken after his death indicated that, at the time of death, his blood did not contain any lithium carbonate or Risperidone. Dr Shalala accepted in evidence that in her experience the absence of any lithium carbonate or Risperidone in the deceased's blood indicated that he had not been taking his lithium for at least three to five days before his death and had not been taking his Risperidone for at least two days before his death (ts 525). There was also evidence at the inquest that the analysis of the deceased's blood indicated that, at the time of death, his blood did not contain any active constituent or trace of cannabis or other illicit drugs. It was open to the Coroner to conclude, on the basis of the absence of therapeutic and illicit drugs in the deceased's blood at the time of his death and Dr Shalala's evidence that the likely outcome of the deceased's failure to take his therapeutic drugs would be eventual manic and psychotic decomposition, that the most likely explanation for the deceased's behaviour on the date of his death was psychosis, precipitated by his failure to take his prescribed medication.

94 Tenthly, as regards the criteria in s 26 of the Mental Health Act, it was open to the Coroner to conclude that the criteria were satisfied, as at 13 December 2006, in relation to the deceased, in that:

(a) as at 13 December 2006 (being the date on which Dr Shalala and Dr Wallman examined the deceased), the deceased had a 'mental illness requiring treatment', within s 26(1)(a);

(b) on the Coroner's findings of fact (which I have held were open to him), the treatment which the deceased required as at 13 December 2006 was depot medication, for his mental illness;

(c) the depot medication could be provided through a CTO and was required to be provided, as at 13 December 2006, in order to protect the health of or safety of the deceased or other persons, within s 26(1)(b)(i);

(d) as at 13 December 2006, and on the basis of the deceased's dislike of depot medication, it could properly have been inferred that, if asked, he would have refused to consent to depot medication, within s 26(1)(c); and

(e) in the circumstances, the depot medication could not be adequately provided other than by making a CTO, within s 26(1)(d).

A conclusion that the criteria in s 26 were satisfied, as at 13 December 2006, was not at variance with the objects of the Mental Health Act, as set out in s 5. The Coroner was not bound by Dr Shalala's view that the criteria were not satisfied as at 13 December 2006. The critical point in dispute in relation to the satisfaction of those criteria as at the date in question was whether the deceased was unlikely to be complying with his medication. As I have mentioned, it was open to the Coroner to conclude that he was unlikely to have been complying. See [91] above.

95 In my opinion, the impugned statements were not perverse. They were not statements based on no evidence and they were not statements that no reasonable coroner could make.

97 Ground 5 asserts, in essence, that the learned primary judge was in error in failing to decide that it was necessary and desirable that the impugned statements be declared void. Although it is not apparent from ground 5 as drawn, the appellant contended in its written submissions, and maintained in oral argument, that the State Coroner had failed to accord the appellant procedural fairness before making the statements.

98 In Annetts, Brennan J observed that a coroner's finding as to 'how, when and where the deceased came by his death', within s 11(3)(b) of the Coroners Act 1920 (WA), was 'plainly apt to affect adversely the interests of any person upon whom the finding would reflect unfavourably', even if the finding was not framed so as to appear to determine any question of civil liability or guilt of an offence (608).

99 As I have mentioned, s 44(2) of the Act provides that before a coroner makes any adverse finding to the interests of an interested person, that person must be given the opportunity to present submissions against the making of such a finding. The coroner's obligation under s 44(2) depends on the proposed finding being characterised as 'adverse' to the interests of an interested person.

100 By contrast, the jurisdiction of the Supreme Court under s 52 of the Act does not depend on the finding or findings in question being characterised as 'adverse' to the person making the application, although plainly it would be relevant to the exercise of the court's discretion to grant relief under s 52 that the finding or findings in question were not adverse to the applicant.

101 By s 52(3), the Supreme Court may only make an order under s 52(2) if it is satisfied, relevantly, that it is necessary or desirable because of 'irregularity of proceedings'. That provision in s 52(3) would appear to include a denial of procedural fairness to the applicant for relief.

102 Counsel for the appellant said, in his oral submissions, that the 'practical adverse consequence' of the impugned statements, which the appellant sought to avoid by obtaining relief under s 52 of the Act, was damage to 'reputation'. Later in the argument, I sought to clarify with counsel this aspect of the appellant's case:

BUSS JA: ... Whose reputation were you referring to? Dr Shalala's reputation, the Minister for Health's or someone else's?

TANNIN, MR: Obviously our own.

BUSS JA: What do you mean by 'our own'?

TANNIN, MR: In the sense that the Minister for Health is responsible for the administration of health in this state. Those who are employed as Dr Shalala is employed are subject to his auspices as an employer. We have a mental health system which is designed to assist those who require help. It is designed not only to help those people, but those people affected by them which includes everybody in this community. It's important that the community has confidence and the highest standard is applied in that system of management and that those who look at that system and determine whether or not they might enter into it for assistance have confidence that it is properly administered, so I am talking about the reputation - not just the private reputation of Dr Shalala. I don't represent her

...

BUSS JA: The question was, whose reputation are you here to vindicate, which was the explanation you gave to the Chief Justice as to why this appeal from Templeman J's decision is being pursued.

TANNIN, MR: The determination affects how the treatment of this deceased man is to be construed, how it's viewed. The determination, we say, was against the evidence and it stands. It has, as I have indicated, the sting in terms of the private conduct of the doctor, but it has the sting in terms of the conduct of that doctor as an employee of the department which the Minister is responsible for. That's the answer to the question.

In this context we have a judgment that we apply to have overturned which narrows the concepts of what findings might be justiciable. It narrows, unnecessarily, in our submission, the appropriate scrutiny that should be applied by this court of section 52. It does not even address the constraints of section 25 in terms of the jurisdiction of the coroner. All of those are interests that we are here to protect that arise in the other grounds (appeal ts 50 - 51).

103 It appears from these tortuous responses to a straightforward question that:

(a) the appellant asserts that Dr Shalala's reputation was damaged by the impugned statements; and

(b) the impugned statements, and their damage to Dr Shalala's reputation, also reflected adversely on the appellant as her employer.

104 The Minister of State for the time being administering the Health Act 1911 (WA) is, for the purposes of that Act, a body corporate and is currently known by the designation 'The Minister for Health'. See s 8(1) of the Health Act. The appellant is this body corporate. The appellant is also responsible for the administration of the Mental Health Act. See s 7 of that Act.

105 Dr Shalala was not a party to the application before the learned primary judge. She is not a party to this appeal. The only person who has been a party to the proceedings in the Supreme Court or this court is the appellant.

106 Nicholas Anthony Egan, a senior assistant state solicitor with the State Solicitor's Office, appeared at the inquest. In an affidavit sworn 8 August 2008 in support of the appellant's application to the Supreme Court, he said he appeared at the inquest 'on behalf of the Department of Health'.

107 On 6 June 2008, in the course of the inquest, the following exchange occurred between the State Coroner and Mr Egan:

CORONER: Going back a step. It seems somewhat strange in the circumstances that back on 23 August 2006, Dr Shalala was of the view that he should really remain on depot medication and a community treatment order but because he was going interstate it seemed an appropriate plan to provide him with a letter and to move away from that step. If a community treatment order was appropriate, whether or not someone felt like going interstate doesn't necessarily appear to come within the criteria in the Mental Health Act, does it?

EGAN, MR: Your Honour, I accept that, at least based upon the notes but, your Honour, he was going interstate in conjunction with his brother. His brother Jason had in the past indicated that - or in the past presented with Daniel at the clinic and assisted in relation to the administration of his medication and had contacted the clinic from time to time in circumstances when the need arise [sic]. Your Honour, according to the notes for the presentation on 13 December 2006, Daniel was reported as feeling well currently. He claims to be compliant with his medication (ts 581).

108 This issue was pursued by Mr Egan after the inquest concluded and before the Coroner published his report. By letter dated 20 June 2008, Mr Egan wrote to the Office of the State Coroner, relevantly, as follows:

You may recall that on the last day of the Inquest the State Coroner indicated that there may be an issue in relation to whether or not the Deceased should have been made the subject of a Community Treatment Order when he was last seen at the Avro Clinic by Doctors Shalala and Wallman on 13 December 2006. I did, of course, make oral submissions in relation to that issue, but have nevertheless seen fit to provide the enclosed brief supplementary Written Submissions.

I also take this opportunity to suggest that if there be any doubt as to the correctness of the position as stated in my oral submissions and developed/reiterated in the enclosed Submissions, then it may be appropriate for the Inquest to be reconvened and an independent expert psychiatrist be called. In this regard, I confirm that I have spoken with Dr Rowan Davidson, the State's Chief Psychiatrist, who has indicated that he would be more than willing to attend and give such evidence. In the meantime, I would add that Dr Davidson has been provided with, and reviewed, a copy of the enclosed Submissions, and agrees with them.

In the circumstances, I would be grateful if you would draw both this letter and the enclosed Submissions to the attention of the State Coroner.

109 On 20 June 2008, Mr Egan arranged for the supplementary written submissions he had prepared to be filed with the Coroner. He said in par 1 of the submissions that the submissions were filed 'in response to a suggestion by the coroner on the last day of the Inquest into the death of [the deceased] that an issue may arise in relation to whether or not [the deceased] should have been made the subject of a Community Treatment Order when he was last seen at Avro Clinic by Doctors Shalala and Wallman on 13 December 2006'. Mr Egan then made detailed submissions as to, relevantly, why the criteria for making a CTO were not satisfied as at 13 December 2006 and why there was no basis for any adverse finding as a result of the deceased not having been made the subject of a CTO on 13 December 2006.

110 Before this court, counsel for the appellant submitted, relevantly:

(a) To the extent that there was any doubt as to the correctness of the appellant's submissions at the inquest and an adverse finding was contemplated against the Department and (or) Dr Shalala, the Coroner should have accepted Mr Egan's suggestion to re-convene the inquest so that the chief psychiatrist, Dr Rowan Davidson, could be called to give evidence.

(b) The Coroner should have informed the individual treating psychiatrists of the precise nature of the adverse finding made against each of them to enable the Department and the individual treating psychiatrists to address the Coroner on the proposed finding.

(c) In written submissions made on behalf of the Coroner to the learned primary judge, the Coroner had wrongly asserted that Dr Shalala, Dr Stone and Dr Wallman were not entitled to procedural fairness, by being heard in relation to proposed adverse findings against them, because they were not represented at the inquest.

(d) The Coroner failed properly to consider evidence at the inquest that was contrary to the impugned statements and gave no proper notice to the individual treating psychiatrists that they might be subject to findings adverse to their interests.

(e) The learned primary judge erred in failing to find that it was in the public interest and the interests of justice, and thereby necessary and desirable, for the impugned statements to be declared void.

111 Fairness is essentially a practical concept. It is not abstract in nature. The law of procedural fairness is concerned to avoid practical injustice. See Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 [37] (Gleeson CJ). The requirements of procedural fairness are flexible. Proceedings where procedural fairness must be accorded may be organised to ensure fairness having regard to the nature and circumstances of the particular proceeding, including the relevant facts, the statutory context, the matters in dispute, the circumstances of the particular parties whose interests may be affected, and the legal representation of parties before the relevant body or tribunal. See Mijatovic v Legal Practitioners Complaints Committee [2008] WASCA 115; (2008) 37 WAR 149 [56] (Buss JA).

112 As I have mentioned, the appellant was the only party to the proceedings before the learned primary judge and to this appeal. In particular, neither Dr Shalala nor any of the other treating psychiatrists was or is a party. The issue, therefore, in the context of ground 5, is whether the appellant was denied procedural fairness.

113 In my opinion, on the assumption (favourable to the appellant in relation to ground 5) that the impugned statements reflected adversely on the appellant either directly or indirectly as Dr Shalala's employer, the appellant was not denied procedural fairness. My reasons for that opinion are as follows.

114 First, Mr Egan, in appearing for the Department of Health at the inquest, was, at least in part, representing the interests of the appellant as the Minister of State responsible for administering the Department. Mr Egan assumed the responsibility of protecting the appellant's interests.

115 Secondly, the Coroner, in the exchange with Mr Egan that I have set out at [107] above, adequately raised with Mr Egan the substance of the adverse finding which was ultimately recorded in the impugned statements.

116 Thirdly, it is apparent from Mr Egan's letter dated 20 June 2008 and his supplementary written submissions to the Coroner that he understood the potential for an adverse finding being made in the terms ultimately recorded in the impugned statements.

117 Fourthly, Mr Egan did not at any time apply to the Coroner for the chief psychiatrist, Dr Davidson, to be called to give evidence. He merely made a 'suggestion'.

118 Fifthly, in any event, there is no evidence before this court from Dr Davidson as to the evidence he would have given at the inquest if he had been called as a witness.

119 Sixthly, in any event, I am not persuaded that if Dr Davidson had given evidence there was any reasonable prospect that it would not have remained open to the Coroner to make the impugned statements.

120 I should note, for completeness, that even though Dr Shalala was not a party to the proceedings before the learned primary judge or to this appeal, I am satisfied that she was not denied procedural fairness in relation to the impugned statements. My examination of that part of the transcript of the inquest which is before this court, and of Mr Egan's supplementary written submissions to the Coroner, indicates that Mr Egan assumed the responsibility of protecting the interests of Dr Shalala in addition to those of the appellant and the Department of Health. Counsel for the appellant accepted, before this court, that there was no relevant conflict between the appellant's interests and Dr Shalala's interests in the manner in which the inquest was conducted (appeal ts 50). Further, the other reasons I have advanced for rejecting counsel for the appellant's submissions that the appellant was denied procedural fairness apply, with necessary modifications, to Dr Shalala.

121 The submission made on behalf of the Coroner to the learned primary judge to the effect that Dr Shalala and the other treating psychiatrists were not entitled to procedural fairness because they were not represented at the inquest is fundamentally misconceived, but the making of that submission does not advance the appellant's case before this court. Section 44(2) of the Act requires the Coroner to give an interested person the opportunity to present submissions against the making of a proposed finding adverse to his or her interests. This requirement is not conditional on the interested person actually appearing or being represented at the inquest. It is unnecessary, in this appeal, to determine the content or ambit of the Coroner's obligation generally to accord procedural fairness.

122 Finally, in relation to ground 5, there is no basis for inferring or concluding that the Coroner failed properly to consider evidence at the inquest that was contrary to the impugned statements. Further, the learned primary judge did not err in failing to decide that it was in the public interest and the interests of justice, and thereby necessary and desirable, for the impugned statements to be declared void.

124 Grounds 1, 2 and 3 have been established but grounds 4 and 5 fail. Although the appellant has established that the learned primary judge, with respect, made some material errors, the errors do not affect the correctness of his decision to dismiss the application. The appellant's failure to make out either ground 4 or ground 5 requires that the appeal be dismissed.

The appearance of counsel for the State Coroner

125 The Coroner applied, by counsel, to make submissions in the appeal. There was no contradictor to the declaratory relief sought by the appellant. This court decided that it would hear from counsel for the Coroner, but only in relation to the proper construction of the Act and any procedural issues that might arise in the course of the argument or any decision that the court might make in the appeal. See R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13, 35 - 36 (Gibbs, Stephen, Mason, Aickin & Wilson JJ); Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 [12] (Gaudron & Gummow JJ).