X v Deputy State Coroner for New South Wales

Supreme Court of NSW|2001-02-09|Before: O'Keefe J, John J

BACKGROUND 2 On 2 December, 1997 there was a fire in bushland at Scotchsman's Hill, Lithgow. Two men died in that fire. An inquest into their deaths and an inquiry into the fire during which the deaths occurred was held under the Coroner's Act, 1980. 3 On 8 November, 1999 the Deputy Coroner, sitting without a jury, commenced taking evidence in the inquest into the death of the two men and into the fire in question. The hearing occupied a number of sitting days and extended over the course of some months. 4 On 31 August, 2000 the Deputy Coroner made findings as follows: "I make the formal findings in this matter: That Colin Arthur Eather and Edward Henry Hughes died on 2 December, 1997 at Lithgow Scotchman's Hill of thermal burns and smoke inhalation; and that further that on 2 December, 1997 an area of forest known as Scotchman's Hill, Lithgow was destroyed by fire. I terminate this inquest into the deaths of Colin Arthur Eather and Edward Henry Hughes. I also terminate the associate inquiry into the fire at Scotchman's Hill. This is pursuant to s.19 of the Coroner's Act and I refer the papers to the Director of Public Prosecutions. I do so as I am of the opinion, having regard to the evidence up to this time, and indeed I might say the submissions made, that the evidence is capable of satisfying a jury beyond reasonable doubt that a known person has committed an indictable offence and further that there is a reasonable prospect that a jury would convict." 5 Notwithstanding the termination of the inquest and inquiry, the Deputy Coroner later adjourned the further hearing until 7 November, 2000 for the purpose of taking submissions in relation to the making of recommendations pursuant to s.22A of the Coroner's Act, 1980. 6 On 7 November, 2000 counsel for the plaintiff submitted that in the circumstances which had transpired the Deputy Coroner had no jurisdiction to make recommendations pursuant to s.22A or at all and that she was functus officio. 7 In the course of the discussion between the Deputy Coroner and senior counsel for the plaintiff, the Deputy Coroner said : "I don't necessarily need anybody to make any submissions. It was really only a matter of courtesy that we are even here today because I can make these recommendations in Chambers and nobody would know about them other than the relevant Minister." 8 Senior counsel for the plaintiff then asked the Deputy Coroner to delay the making of any recommendations so as to enable the plaintiff to move the Supreme Court for appropriate orders. That posed no problem for the Deputy Coroner who indicated that: "I always invite people to challenge my ruling"

and a little later: "I keep inviting people to take me on, and nobody will." 9 The plaintiff did. 10 The Deputy Coroner was critical of the form of the Act describing it as "archaic" and "a difficult Act". She stated that: "at times it is hard to make convoluted reasons - one makes convoluted reasons to try and stretch a power into the Act"

She also said: "It may well be that you might be successful in challenging my public declaration of recommendations, but I don't really see how anyone could ever stop me making a private recommendation to the Minister."

and: "I could easily have not had anybody here today and made my recommendations in private and sent them off and I certainly believe I have jurisdiction to do that … it seems to me that it is mutually exclusive to make recommendations apart from a determination because my primary duty in any inquest really is that which is outlined in 22A(2) … as far as I am concerned there is no point in having any inquest unless you are looking for something to come out of it. I say that I have jurisdiction that I don't necessarily have to publicly announce my recommendations."

And a little later: "I accept without reservation that the inquest is terminated, but the recommendations are severed because they have no relevance to those matters which have been terminated " (bold added) 11 Although it is frequently regarded as sufficient in a proceeding against a public official for a declaration to be made, the expectation of the Court being that the public official will act in accordance with the law as declared by the Court, or even as stated in the course of the relevant judgment, (see for example Harmsworth v The State Coroner (1989) VR 989 at 999 per Nathan J) it would seem likely that it was because of the foregoing statements by the Deputy Coroner that the plaintiff has sought an order prohibiting her from making recommendations either overtly, or covertly in the manner stated by her.

APPLICABLE LAW 12 The office of Coroner has a very long history. In the preface to the First Edition of his monograph on Coroners (1829), Sir James Jervis says that "the office of Coroner is of great antiquity". Chaucer (c.1342-1400) refers to the office when he writes: "Lord and sire, Full often time was knight of the shire, A schreve had been, and a Coronour"

Halsbury dates the office from even earlier than Chaucer, at least as early as the beginning of the 13th century. (Halsbury's Laws of England, 4th Ed. vol 9 para 1001). Under the common law there were coroners long before the establishment of the Colony of New South Wales and the Nation of Australia and the law relating to the office and functions of coroners was part of our law from the very early times of the then Colony of New South Wales. 13 Under the common law the coroner's court was a court of record (Coke, 4 Inst p.277; Jervis op. cit. 8th Ed. 78). This has been continued under the legislation enacted to govern and regulate the office and functions of coroners in New South Wales (Coroner's Act s.22; Attorney General (NSW) v Mirror Newspapers Limited (1980) 1 NSWLR 374 at 381 per Moffitt P, Hope and Samuels JJA; Attorney General v Maksimovich (1985) 4 NSWLR 300 at 315 per Samuels JA). 14 The Coroner's Act, 1960 (No.2 of 1960) which replaced the Coroner's Act, 1912 was in turn repealed and replaced by the Coroner's Act, 1980 (No.27 of 1980). 15 Section 19 of the Coroner's Act, 1980 dealt with the procedure at an inquest or inquiry at which it appeared to the coroner that a person had already been charged with an indictable offence or that the evidence given at the inquest or inquiry established a prima facie case against any known person for an indictable offence. The form of that section is material since it was replaced by the section in force at the times relevant to the present proceedings. The original form of s.19 in the Coroner's Act, 1980 provided that: "19.(1) Where - (a) before an inquest or inquiry commences or at any time during the course of an inquest or inquiry, it appears to the coroner that a person has been charged with an indictable offence; or (b) at any time during the course of an inquest or inquiry the coroner is of opinion that the evidence given at the inquest or inquiry establishes a prima facie case against any known person for an indictable offence, and the indictable offence is one in which the question whether the person charged or the known person caused the death or suspected death or the fire is in issue, the coroner - (c) where he has not commenced the inquest or inquiry or has commenced it but - (i) in the case of an inquest concerning the death of a person, has not taken evidence as to his identity and the date and place of his death; (ii) in the case of an inquest concerning the suspected death of a person, has not taken evidence that establishes that he has died and as to his identity and the date and place of his death; or (iii) in the case of an inquiry, has not taken evidence as to the date and place of the fire, may commence or continue the inquest or inquiry but for the purpose only of taking that evidence and shall, upon doing so, terminate the inquest or inquiry; (d) where he has commenced the inquest or inquiry but decides not to continue it under paragraph (c), shall terminate the inquest or inquiry; or (e) where he has commenced the inquest or inquiry and has taken the evidence referred to in paragraph (c) relevant thereto, shall terminate the inquest or inquiry. and discharge the jury, if any. (2) Where, under subsection (1), a coroner terminates an inquest or inquiry after coming to the opinion that a prima facie case for an indictable offence has been established against a known person, he shall forward to the Attorney-General the depositions taken at the inquest or inquiry together with a statement signed by the coroner specifying the name of that person and particulars of the offence." 16 In 1989 the Coroner's Act, 1980 was amended in a number of respects (Act No. 237 of 1989). Most materially for the present proceedings, sub-paragraphs (c), (d) and (e) were omitted from s.19(1) and new sub-sections (1A), (1B), (1C) and (2) were inserted. As a result s.19 then provided: "19. Procedure at inquest or inquiry involving indictable offence (1) This section applies if: (a) before an inquest or inquiry commences or at any time during the course of an inquest or inquiry, it appears to the coroner that a person has been charged with an indictable offence, or (b) at any time during the course of an inquest or inquiry the coroner is of opinion that the evidence given at the inquest or inquiry establishes a prima facie case against any known person for an indictable offence, and the indictable offence is one in which the question whether the person charged or the known person caused the death or suspected death or the fire or explosion is in issue. (c)-(e) (Repealed) (1A) If this section applies to an inquest or inquiry as provided by subsection (1)(a), the coroner may commence the inquest or inquiry, or continue it if it has commenced, but only for the purpose of taking evidence to establish: (a) in the case of an inquest - the death, the identity of the deceased and the date and place of death, or (b) in the case of an inquiry - the date and place of the fire or explosion, and, after taking that evidence, or if that evidence has been taken, must terminate the inquest or inquiry and, if there is a jury, must discharge the jury. (1B) If this section applies to an inquest as provided by subsection (1)(b), the coroner may continue the inquest and: (a) record under section 22(1) the findings of the coroner or, if there is a jury, the verdict of the jury, or (b) after taking evidence to establish the death, the identity of the deceased and the date and place of death - terminate the inquest and, if there is a jury, discharge the jury. (1C) If this section applies to an inquiry as provided by subsection (1)(b), the coroner may continue the inquiry and: (a) record under section 22(2) the findings of the coroner or, if there is a jury, the verdict of the jury, or (b) after taking evidence to establish the date and place of the fire or explosion - terminate the inquiry and, if there is a jury, discharge the jury. (2) The coroner is required to forward to the Director of Public Prosecutions the depositions taken at an inquest or inquiry to which this section applies together with a statement that is signed by the coroner and specifies, in the case of an inquest or inquiry referred to in subsection (1)(b), the name of the known person, and the particulars of the offence, so referred to. (3) (Repealed)" 17 Section 19 was further amended by the Crimes Legislation Further Amendment Act, 1998 (No.149 of 1998) so as to substitute for the prima facie case test as originally specified in s.19(1)(b), a new test as follows: "(b). At any time during the course of an inquest or inquiry, the coroner is of opinion that, having regard to all the evidence given up to that time: (i) the evidence is capable of satisfying a jury beyond reasonable doubt that a known person has committed an indictable offence, and (ii) there is a reasonable prospect that a jury would convict the known person of the indictable offence," 18 Part 4 of the Coroner's Act ,1980 (the Act) as it stood at the time at which the Deputy Coroner made her findings and terminated the inquest and inquiry, and at all times since, made provision in relation to inquests and inquiries. 19 When an inquest or inquiry is to be held, the coroner is required to fix the time and place for its commencement and give appropriate notice to certain nominated persons, including any person who in the opinion of the coroner has a sufficient interest in the subject matter of the inquest or inquiry (s.17). 20 The primary mode of conduct of an inquest or inquiry contemplated by the Act is by a coroner sitting without a jury (s.18(1)). However, if the Minister or State Coroner so directs or if a relative of a person who has died or the secretary of any society or organisation of which that person was a member before his or her death so requests within the appropriate time, the inquest or inquiry is to be held before a coroner with a jury (s.18(2)). 21 Where the coroner decides not to commence, or terminates, an inquest or inquiry pursuant to s.19(1A), (1B) or (1C): "An inquest or a fresh inquest concerning that death or suspected death, or an inquiry or a fresh inquiry concerning that fire or explosion as the case maybe may subsequently be held under this Act"

but it is not to be held until the requirements of s.20(1)(a) or (b)) have been complied with. Those requirements are that the charge referred to or arising out of s.19(1A), (1B) or (1C) has been finally dealt with or the appropriate authority has directed that no further proceedings be taken against the person in question in respect of the charge or that such person has been discharged by an order of a justice or justices. 22 Section 22 of the Coroner's Act provides: " 22. Finding of coroner or verdict of jury to be recorded (1) The coroner holding an inquest concerning the death or suspected death of a person shall, at its conclusion or termination, record in writing his or her findings or, if there is a jury, the jury's verdict, as to whether the person died and, if so: (a) the person's identity, (b) the date and place of the person's death, and (c) except in the case of an inquest continued or terminated under section 19, the manner and cause of the person's death. (2) The coroner holding an inquiry concerning a fire or explosion shall, at its conclusion or termination, record in writing his or her findings or, in the case of an inquiry held before a jury, the jury's verdict: (a) except as provided in paragraph (b), as to the date and place and the circumstances of the fire or explosion. (b) in the case of an inquiry continued or terminated under section 19, as to the date and place of the fire or explosion. (3) Any record made under the provisions of subsection (1) and (2) shall not indicate or in any way suggest that an offence has been committed by any person. (4) Subsection (1) does not apply in respect of an inquest terminated under section 21." 23 Section 22 was included in the Act in 1980, but was amended in 1989 at the same time as the amendments were effect to s.19. It was further amended in 1993, as referred to below. 24 Notwithstanding that under the common law a coroner and a coroner's jury need do no more than make the findings or give the verdict in an inquest or an inquiry, a coroner and a coroner's jury could add a rider or recommendation to the findings made or verdict given. This was done at the time the findings were made or the verdict was given. (Jervis on Coroners 4th Ed., 1880 p.251). However, the addition formed no part of the verdict. It was mere surplusage (Jervis op. cit. 8th Ed, id; 8th Ed, 1946, p.110). This view of the law was accepted in R v Harding (1908) Crim App Rep 219. Darling J with whom Phillimore J agreed, said: "The coroner's jury find facts and a verdict is entered which is a conclusion from their finding … the rider attached to the coroner's verdict is not part of the verdict itself and has no legal effect" (supra at 225) 25 Although at common law such riders or recommendations were not part of the finding of the coroner or of the verdict of the jury, they could be recorded if their nature was concerned with avoiding a repetition of a like event or circumstance (Jervis op. cit. 8th Ed. p.110). 26 A provision was introduced into the Act in 1993 (Act No.79 of 1993) to give statutory recognition to the practice of coroners and coroner's juries adding riders or recommendations to their findings or verdicts. In his second reading speech the Minister for Justice states: "The legislation is presently silent on the question of recommendations attached to findings by coroners and coroner's juries. At common law such a practice is recognised … Nevertheless the Royal Commission into Aboriginal deaths in custody recommends that the common law position be given legislative endorsement … It is therefore proposed to insert a new section 22A, to allow coroners and coronial juries to attach to such findings such recommendations as are considered necessary in all the circumstances." (Hansard Vol. CCXXXVI p.1383) (bold added) 27 The provision then inserted was as follows: "22A Coroner or jury may make recommendations (1) A coroner (whether or not there is a jury) or a jury may make such recommendations as the coroner or jury considers necessary or desirable to make in relation to any matter connected with the death, suspected death, fire or explosion with which an inquest or inquiry is concerned. (2) Public health and safety are examples of matters that can be the subject of a recommendation. A recommendation that a matter be investigated or reviewed by a specified person or body is an example of a recommendation that can be made. (3) The record made under section 22 is to include any recommendations made by the coroner or jury. The record must not indicate or in any way suggest that an offence has been committed by any person." 28 Although s.22A endorses the common law practice of coroners and coroner's juries making recommendations arising out of the inquest which they were undertaking, it also effects a change to the common law in that it mandates that the record under s.22 include any recommendations made by the coroner or the jury. This means that recommendations are no longer "mere surplusage". 29 At the time s.22A was inserted Parliament also gave attention to s.22. The Act which inserted s.22A also amended s.22 by inserting the words "or explosion" after the word "fire" wherever occurring. Section 22A remains in the Act and was in effect at all times material to the present proceedings and to the inquest and inquiry out of which they arise. 30 Section 23 is informative. It provides that notwithstanding that an inquest is terminated under s.21 on a finding by the coroner or coroner's jury that a person has not died or it is uncertain whether the person has died, such finding or verdict must be recorded under s.22. In such circumstances "a fresh inquest concerning the death or suspected death may subsequently be held under this Act." 31 Section 23A provides that "a fresh inquest or inquiry must be held into a death, suspected death, fire or explosion that was the subject of an inquest or inquiry that has been held" if certain conditions are fulfilled.

THE PLAINTIFF'S ARGUMENT 32 The first argument on behalf of the plaintiff was that the amendment to s.19 made in 1989 did not really change the situation that had pertained prior to such amendment. The effect of the new provisions, s.19(1A), (1B) and (1C) was, so the argument ran, the same as that of the former s.19(1)(a), (b) and (c). Furthermore, the argument proceeded, the word "and" in s.19(1B) and 19(1C) really has the same effect as the words "but only for the purposes of" in s.19(1A). It was also contended that in the events which had transpired in the instant case, namely the termination of the inquest and inquiry by the Deputy Coroner on 31 August, 2000 and the making and recording of the requisite findings, the Deputy Coroner was functus officio on 7 November, 2000 and then had no power or jurisdiction to make recommendations under s.22A of the Act.

A. The 1989 Amendments to s.19 33 There is a threshold problem with the first argument of the plaintiff. If it be correct, then Parliament has acted for no purpose. A court will be loathe to conclude that Parliament has acted in vain. It is not a conclusion to which a court should come if it can find a sensible interpretation of the statutory enactments. There are also strong reasons to be found in the legislative history and the text of the section that militate against upholding the plaintiff's first submission. 34 As s.19 stood prior to its amendment in 1989, the same procedure was applicable to two categories of inquests or inquiries:

(a) those in which, either before their commencement or during their course, a person had been charged with an indictable offence;

(b) those during the course of which the coroner formed the opinion that the evidence established a prima facie case against any known person.

One rule applied to both categories. The rule was that the coroner could commence or continue the inquest " but for the purpose only of taking " evidence as to the occurrence of death, the identity of the deceased and the date and place of the death. In the case of an inquiry into a fire the coroner was restricted to taking evidence as to the date and place of the fire. Having taken the limited evidence provided for in s.19 (as it then stood), the coroner was required to " terminate the inquest or inquiry ". 35 The amendments of 1989 provide for different procedures for the different categories of cases depending upon the circumstances. If the circumstance is that, before the inquest or inquiry has commenced a person has been charged with an indictable offence, the coroner may commence or continue the inquest or inquiry "but only for the purpose of taking evidence to establish … the death, the identify of the deceased and the date and place of death" (in the case of an inquest) (bold added) and "the date and place of the fire or explosion" (in the case of an inquiry). The same procedure applies to inquests or inquiries in which a person is charged during the course of the hearing. After evidence limited to the matters referred to above has been taken, the coroner is required to terminate the inquest or inquiry and in the event that there is a jury, to the jury. This provision is very similar in its wording and identical in its effect to the provision in s.19(1) in its original form. However, the new provision applies to a more limited category of case than the original provision had, namely that category in which a charge has been preferred. 36 Section 19(1B) applies to inquests; s.19(1C) to inquiries. The critical wording of each such subsection is different from that of s.19(1A). Neither contains the words "but only for the purpose of taking evidence to establish". The word of conjunction between the introductory clauses and the action clauses of each of s.19(1B) and (1C) is "and". Section 19(1B) and s.19(1C) permit the coroner to continue the inquest and inquiry respectively, but each also confers a discretion on the coroner as to which of two courses the inquest or inquiry should take after the opinion provided for in s.19(1)(b) of the Act has been formed by the coroner. 37 The first course that may be taken is to record the findings of the coroner or verdict of the jury as the case may be under s.22(1). That alternative appears to be designed to allow the inquest or inquiry to proceed to its normal conclusion. Such a conclusion occurs when the findings are made, or the verdict is given, and recorded as required by s.22. 38 In an inquest or inquiry in which there is no jury and in which no question of the commission of an indictable offence arises, the coroner takes evidence and makes and records the findings required by s.22(1) or (2). That marks the end of the inquest or inquiry. That is its "conclusion". Where there is a jury the giving and the recording of the verdict of the jury marks the end of the inquest or inquiry. In each case the coroner or the coroner's jury, has then completed his or her or its function. The jury disperses, the coroner departs. Neither can resume the same inquest or inquiry. If the provisions of s.23 or s.23A are applicable a fresh inquest concerning the same death or a fresh inquiry concerning the same fire or explosion may be held, but such an inquest or inquiry is not a continuance of the former. It is as, the statute provides, "fresh". It is new; different. 39 The second course open to the coroner under ss.19(1B) and (1C) where the opinion referred to in s.19(1)(b) has been formed, is for the coroner, after taking evidence to establish the death, the identity of the deceased and the date and place of death (in the case of an inquest) or the date and place of the fire or explosion (in the case of an inquiry), to terminate the inquest or inquiry and, if there is a jury to discharge it. The adoption of that course still requires the findings or verdict, as the case may be, to be recorded in writing. It is the making of the findings or giving of the verdict and the recording in writing of such findings or verdict that mark the end of the inquest or inquiry. The word "terminate" in s.19(1A), (1B) and (1C) means what it says. The inquest is at an end. That meaning is the same in the Act as it now stands as it was in the Act in its original form in 1980. (Attorney General v Maksimovich (1985) 4 NSWLR 300 at 313). It is also the effect of the word "conclusion" in s.22. 40 The alternatives in ss.19(1B) and (1C) as discussed above appear to be those contemplated in the second reading speech of the Attorney General and in the Explanatory Note relating to the amending bill of 1989. The Attorney- General said: "The amendment to be made to section 19 will not effect a substantive change in policy. A coroner will not be permitted to make any findings beyond those which may already be made in circumstances where a charge has been laid or a prima facie case established. It will, however, permit a coroner to continue proceedings in which he or she has formed the opinion that a prima facie case for an indictable offence exists, and to take all available evidence before recording the permitted findings and referring the papers to the Director of Public Prosecutions." (Hansard vol. CCXI 28 November, 1989 p.13568) 41 The Explanatory Note relating to the 1989 bill refers to the objects of the bill as including: "(d) to confer on a coroner a discretion to terminate, or with certain safeguards, to continue, an inquest (into a death) or an inquiry (into a fire) where an indictable offence may be involved but no charge has been laid."

In that part of the Schedule to the Explanatory Note which relates to the amendments to s.19 it is stated: "The proposed amendments would confer a discretion on the coroner either to terminate or continue the inquest or inquiry." 42 The extrinsic material to which reference may be had in the interpretation of the Act (Interpretation Act, 1987 s.34) thus tends to confirm that the meaning of the relevant provisions as determined above is the meaning of the text as intended by Parliament. 43 In an inquest or inquiry in which no question under s.19 arises, the findings required are:

(a) the fact of death of a person; (b) the identity of the deceased; (c) the date and place of the person's death; and (d) the manner and cause of death. (s.22(1))

In relation inquiries into fires and explosions the findings required are the date, place and circumstances of the fire or explosion. (s.22(2)). 44 However, when an inquest or inquiry involves one of the situations contemplated by s.19 a limitation is imposed on the findings that a coroner may make and on the verdict a coroner's jury may give. 45 In an inquest, the findings or verdict are limited to the fact of death, the identity of the deceased and the date and place of the deceased's death. No finding as to the manner or cause of death is permitted. In an inquiry the findings are limited to the date and place of the fire or explosion. No finding as to the circumstances of the fire or explosion is permitted. Those limitations appear to have been imposed in order to protect civil rights by ensuring that no finding, verdict or record would or may suggest the commission of an indictable offence by a known person.

B. Insertion of s.22A 46 A question was raised in argument in the present case as to whether or not the insertion of s.22A in 1993 was intended to provide for yet a further matter which is to be included within the record, namely recommendations. 47 Reading the Act as it now stands, the form of ss.22(1)(c) and s.22(2) does not ex facie preclude the inclusion in any of the categories of recommendations made pursuant to s.22A in the record of the findings or of the verdict provided for in s.22(1). Prior to the insertion of s.22A, s.22(1) operated to exclude the recording of any findings other than the fact of death, the identity of the deceased and the date and place of death in any inquest to which s.19 applied. This is directed at ensuring that the record of findings in the coroner's court do not prejudice an accused or possible accused by public pre-trial adverse findings. It is achieved by limiting the ambit of the findings that can be recorded and is reinforced by an express prohibition in s.22(3). 48 The record under s.22 must include any recommendations made by the coroner or the coroner's jury. This is the effect of the compound verb "is to include" which is used in the section. (D.P.P. v Sinton [2000] NSWSC 473 (Supreme Court, unreported 31 May 2000). But the record "must not indicate or in any way suggest that an offence has been committed by any person"(s.22A(3)). Except for the substitution of the word "must" in s.22A(3) for the word "shall" that is used in s.22(3), the relevant wording of each subsection is identical. Both sub-sections are in furtherance of a policy of protecting from prejudice a person who has been or may be charged with an indictable offence, as contemplated by s.19. In those circumstances there is no reason in policy why the findings recorded under s.22 in situations to which s.19 applies should not include recommendations made pursuant to s.22A, provided that the statutory limitations are conformed to and that such recommendations are made at the appropriate time. As already stated, the actual words of the statute do not ex facie preclude the inclusion of recommendations in a situation to which s.19 applies.

C. Time for making recommendations 49 In the inquest and inquiry presently in question the Deputy Coroner on 31 August, 2000 in the New South Wales State Coroner's Court held in Katoomba said: "I MAKE THE FORMAL FINDINGS IN THIS MATTER".

and having done so (see paragraph 4 above) said: "I TERMINATE THE INQUEST INTO THE DEATHS OF COLIN ARTHUR EATHER AND EDWARD HENRY HUGHES. I ALSO TERMINATE THE ASSOCIATE INQUIRY INTO THE FIRE AT SCOTCHMAN'S HILL. THIS IS PURSUANT TO S.19 OF THE CORONERS ACT AND I REFER THE PAPERS TO THE DIRECTOR OF PUBLIC PROSECUTIONS." 50 However, despite having already terminated the inquest and inquiry, the Deputy Coroner proceed to adjourn them, at first suggesting that the adjournment might be the following day. In the event the adjournment was until 7 November, 2000 on which date the Deputy Coroner announced that she proposed to make recommendations. 51 In my opinion, the procedure then proposed by the Deputy Coroner does not accord with the requirements of the Act. 52 When a coroner forms the opinion referred to in s.19(1)(b) and elects to adopt the procedure referred to in s.19(1B)(b)) (in respect of an inquest) or (1C)(b) (in respect of an inquiry) the continuance of the inquest or inquiry is for the taking of evidence to establish the death, the identity of the deceased and the date and place of death (in the case of an inquest) or the date and place of the fire or explosion (in the case of an inquiry). The coroner is then required to terminate the inquest or inquiry and, if there is a jury, to discharge the jury. It only remains for the coroner to fulfil the duty to record the findings or verdict imposed by s.22. 53 Where there has been a termination of the inquiry or inquest, that duty must be complied with "at" such termination; i.e. the making and recording of the findings or the giving and recording of the verdict is to be contemporaneous with the termination. If recommendations are to be made they must be made at that time. 54 This conclusion as to the time at which the findings are to be made and recorded is supported by s.22A. First, the record must include any recommendations made (s.22A(3)). Second, the record must be made at the termination of the inquest or inquiry ("at its termination"). Third, s.22A(1) is so framed as to relate to an inquest or inquiry that is extant. The power conferred on the Coroner by s.22A(1) is conditioned. The recommendation(s) must:

(b) relate to a matter connected with the death, fire or explosion with which the inquest or inquiry " is concerned". It would not be competent for a coroner's jury or for that matter a coroner to make a recommendation in relation to a matter not connected with the inquest or inquiry in which the recommendation was made. To do so would be to hark back to a different death or fire with which a different inquest or inquiry had been concerned. As a practical matter, where there had been a coroner's jury, it would involve re-assembling the same jury. This may not be possible simply because of the effluxion of time. 55 It should be noted that the conclusion that the termination or conclusion as contemplated by s.22 marks the end of the inquest or inquiry is supported by s.23. If the "terminated" or "concluded" inquest was not at an end, there would be no need to make provision in the Act enabling a "fresh inquest" to be held. It would be competent to resume the former inquest. But the statute proceeds on a different assumption; an assumption that is in accordance with the common law. 56 In the course of address, counsel for the Attorney General submitted that there was no evidence that the findings of the Deputy Coroner had been recorded in writing as required by s.22(1) and that as a consequence the inquest and inquiry were still on foot. I disagree with this submission for a number of reasons. First, the copy document which is Annexure A to the affidavit of John Francis Joseph of 17 November, 2000 reproduces part of the record of the coroner's court. It is a formal typewritten statement of the findings made by the Deputy Coroner. It is a sufficient compliance with s.22 of the Act (Interpretation Act,1987 s.21). There is no provision in the Act requiring the record of the findings of the coroner or the verdict of the jury to be in any particular form, other than that it be in writing. Whilst the Act provides for the making of regulations with respect to "prescribing any forms to be used under this Act" (s.58(1)(c)), the regulations that have been made do not require any particular form to be used. Regulation 7 provides that the forms set out in Schedule 1 to the regulations "may be used for the purposes for which they are applicable". This provision is facultative or permissive, not mandatory. Second, even if this not be correct, the actual recording of the findings is an act that it is the duty of the Deputy Coroner to perform (s.22(1)). It was within her exclusive control, as was the referring to the papers to the Director of Public Prosecutions (s.19(2)). 57 In dealing with a public official such as the Deputy Coroner the law presumes that all acts required to be done by such an official have been done and done rightly and regularly. The maxim omnia praesumuntur rite et solenniter esse acta is appropriate to such circumstances. Where acts of an official nature are required to be done, the presumption in favour of their having been duly done applies "until the contrary is shown" (Davies v Pratt (1855) 139 ER 1039 at 1041; 17 CB 183 at 188). In that case Jervis CJ applied the maxim to an arbitrator who had been directed by an order of the court to undertake a particular course of action. A direction in a statute is in no less a position than an order of a court. 58 The presumption of regularity has been held to apply to the records of a court of justice. (Reed v Jackson (1801) 102 ER 137 at 138;1 East 355 at 357 per Lord Kenyon CJ). It applies to a court of record and the coroner's court is such a court.

GENERAL 59 The Deputy Coroner fell into error when she stated that her : "primary duty in any inquest really is that which is outlined in s.22A(2)". 60 The primary duty of a coroner conducting an inquest is to determine and record if a death has occurred and, if so, the identity of the deceased, the date and place of the death and the manner and cause of such death (s.22(1)). In conducting an inquiry the primary duty of the coroner is to determine and record the date, place and circumstances of the fire (or explosion) in question. They were the primary duties cast upon a coroner by the common law. They are the primary duties cast upon the coroner by s.22 of the Act. Such duties pre-dated the insertion of s.22A, which transformed recommendations that which were previously "mere surplusage" into part of the record. However, the section does not require the making of any recommendations. It merely permits them to be made. 61 In addition, her statement that the recommendations: "have no relevance to those matters which have been terminated"

appears to involve a misunderstanding of the nature of recommendations. Under both the common law and s.22A, a nexus between the recommendations and the inquest or inquiry out of which they arise is necessary. That there must be such a nexus under s.22A is clear, as emerges from the analysis above Furthermore, the same analysis shows that whatever the subject matter of the recommendation it must be linked to, i.e. "connected with", an inquest or inquiry which is extant, not one that is over because it has been terminated or concluded. 62 The comments by the Deputy Coroner in relation to the difficulties of the Act are in a somewhat different category. Whilst I do not agree that the Act is archaic, it is correct to say that its construction and application are not without problems. It has been amended in piecemeal fashion from time-to-time and could well be the subject of a comprehensive review by, for example, the Law Reform Commission of New South Wales.

CONCLUSION 63 In my opinion, the course adopted by the Deputy Coroner was defective in at least two respects. First, she included within her findings the manner and cause of death of Colin Arthur Eather and Edward Henry Hughes contrary to the express prohibitions in ss.22(1)(c) and 22(2) of the Act. Second, the proposal to make recommendations in the inquest and inquiry which had been terminated some months before is inconsistent with the requirements of s.22(1) of the Act. 64 On 7 November, 2000 the Deputy Coroner was functus officio (Regina v White (1860) 3 El and El 137 at 144; 121 ER 394 at 397; John Fairfax Publications Pty Limited v Abernathy[1999] NSWSC 820, 13 August, 1999, unreported per Adams J; Jervis op. cit. 10th Ed. p.245). She had no power or jurisdiction to make recommendations in the inquest and inquiry which she had terminated on 31 August, 2000. 65 The conclusion to which I have come is consonant with the conclusion reached by Adams J in John Fairfax Publications Pty Limited v Abernathy(supra) in which the findings required of the coroner by s.22(1) were incomplete in that, there being no cause for the application for s.19, the coroner had not yet found and recorded the manner and cause of death of the relevant person. As a consequence the inquest into the death of that person was incomplete. A resumption of the incomplete inquest was appropriate.

RELIEF 66 In my opinion, the plaintiff is entitled to a declaration of the general nature sought in the summons. Furthermore, having regard to the statements made by the Deputy Coroner (referred to in paragraph 10 above) and notwithstanding the fact that she has submitted to such order as the court may make (other than an order as to costs) and has undertaken not to take any steps to make any recommendations until the earlier of:

(ii) the determination by the Director of Public Prosecutions to file no bill of indictment arising out of the circumstances of the inquest and inquiry; or

(iii) the finalisation of any criminal proceedings brought by the Director of Public Prosecutions arising out of the subject inquest and inquiry,

I am of opinion that it is appropriate to make an order preventing the Deputy Coroner from proceeding further in the inquest and inquiry the subject of these proceedings. The declaration and order will not be in the precise form set out in the summons, but should reflect these reasons.

COSTS 67 The Deputy Coroner, filed a submitting appearance. That procedure is in accordance with convention and in such circumstances orders for costs are not usually made against the submitting party. 68 The Attorney General appeared as amicus curiae. The assistance given as a result of such appearance was considerable and valuable. It would be inappropriate to make an order for costs against the Attorney General in such circumstances. 69 As a result, I am of opinion that the appropriate order is that there should be no order as to costs. 70 I direct that short minutes of the final order be brought in on 12 February, 2001. 71 12 FEBRUARY 2001

I declare that the defendant, the Deputy Coroner for New South Wales, having found and recorded that Colin Arthur Eather and Edward Henry Hughes had died at Scotchman's Hill, Lithgow on 2 December, 1997, and that an area of forest known as Scotchman's Hill, Lithgow was destroyed by fire on such date and having terminated the inquest concerning such deaths and the inquiry concerning such fire on 31 August, 2000 had no jurisdiction on 7 November, 2000 to make recommendations in relation to any matter connected with such deaths or fire with which the inquest and inquiry so terminated had been concerned. 2. I order that the defendant, the Deputy Coroner for New South Wales, be restrained from making recommendations pursuant to s.22A of the Coroner's Act 1980 or otherwise in relation to any matter connected with the deaths of Colin Arthur Eather or Edward Henry Hughes at Scotchman's Hill, Lithgow on 2 December, 1997 or the fire at Scotchman's Hill, Lithgow on 2 December, 1997 with which the inquest and inquiry terminated by the defendant on 31 August, 2000 had been concerned. **********

Last Modified: 02/13/2001 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

(2001) 51 NSWLR 312 Reported Decision : [2001] NSWSC 46 [2001] ACL Rep 115 NSW 1

COUNSEL : Mr G Craddock - plaintiff Ms N Abadee - Attorney General (amicus curiae) For plaintiff: John J Joseph Lithgow SOLICITORS : For defendant and amicus curiae I V Knight Crown Solicitor Sydney CATCHWORDS : Coroners - Coroner's court - Termination of inquest and inquiry - Meaning of terminate - Findings - Verdict of jury - Record of findings or verdict - Presumption of regularity - Recommendations - Time at which recommendations are to be made - Power of coroner - Procedure in coroner's court - Alternative procedures - Discretion of coroner - Amicus curiae - Costs The Coroner's Act, 1960 (No.2 of 1960) LEGISLATION CITED : The Coroner's Act, 1980 (No.27 of 1980) Crimes Legislation Further Amendment Act, 1998 (No.149 of 1998) Interpretation Act, 1987 s.34 Harmsworth v The State Coroner (1989) VR 989 at 999 Attorney General (NSW) v Mirror Newspapers Limited (1980) 1 NSWLR 374 at 381 Attorney General v Maksimovich (1985) 4 NSWLR 300 at 315 R v Harding (1908) Crim App Rep 219 CASES CITED : DPP v Sinton [2000] NSWSC 473 (Supreme Court, unreported, 31 May 2000) Davies v Pratt (1855) 139 ER 1039 at 1041; 17 CB 183 at 188 Reed v Jackson (1801) 102 ER 137 at 138; 1 East 355 at 357 Regina v White (1860) 3 El & El 137 at 144; 121 ER 394 at 397 John Fairfax Publications Pty Limited v Abernathy [1999] NSWSC 820, 13 August, 1999, unreported DECISION : Declaration that Deputy State Coroner had no jurisdiction on 7 November, 2000 to make recommendations in relation to the inquest and inquiry terminated on 31 August, 2000; Order that the Deputy State Coroner be restrained from making recommendations in relation to any matter connected with the deaths or fire with which the terminated inquest and inquiry had been concerned; No order as to costs

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