Annetts & Anor v McCann

[1990] HCATrans 171

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No PS of 1990

B e t w e e n -

SANDRA ANNETTS and LESLIE

ANNETT$

Applicants

and

DAVID McCANN - THE CORONER

OF WESTERN AUSTRALIA

First Respondent

SHERWIN PASTORAL COMPANY and

GILES LODER

Second Respondents

MASON CJ
BRENNAN J
DEANE J

TOOHEY J

McHUGH J

Annetts 1 9/8/90

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 9 AUGUST 1990, AT 12.26 PM

Copyright in the High Court of Australia

MR K.R. MURRAY, OC:  May it please Your Honours, I appear

for the appellant with my learned friend,

MR D.A. CAMPBELL. (instructed by

Daniel J. Brezniak)

MR J.R. MCKECHNIE, QC: If Your Honours please, with my

learned friend, MR J.D. ALLANSON, I seek leave to

intervene on behalf of the Attorney-General for

Western Australia. (instructed by the Crown

Solicitor for Western Australia)

MASON CJ:  The Registrar has been advised by Mr Brezniak,

who acts on behalf of the second-named respondent,

the Sherwin Pastoral Company, that it is its

intention not to appear in the matter. Yes,

Mr Murray?

MR MURRAY:  I hand Your Honour the summary. The appellate

raises, Your Honour, the important question of what

procedural fairness is required of the coroner in

the hearing of a coronial inquiry and, in

particular, whether the Western Australian coroner

is required to hear submissions from the parents of

two young boys who died in a remote part of Western

Australia whilst working on a series of stations in

the Kimberley region. ··

TOOHEY J: When you put the proposition that way, Mr Murray,

does that mean that you do not rely upon the

Coroners Act itself or that you rather seek to extract some proposition regarding procedural

fairness from the Act or that you rely upon some

general doctrine of natural justice?

MR MURRAY:  We certainly rely upon the Act, Your Honour, and from a general doctrine of natural justice.

We say, Your Honour, that when all of it is

read together it is abundantly clear that there is

a right, as part of the right to attend, et cetera,

under section 24, to make a relevant submission at

the end. Now, Your Honour, the issue, is the

opportunity to be heard dependent upon the exercise
of a terminal discretion of the coroner, he having

already under section 24 exercised a discretion as

to whether we are to be admitted, in the words of
the section, to "attend" or is it a right which
ordinarily would flow to a person given leave to

attend pursuant to section 24?

The section, Your Honour, is set out in the

judgment below, section 24, does not in terms give

a right to appear. It reads - section 24(1):

"At any inquest, any person who, in the

opinion of the coroner, has a sufficient

Annetta 2 9/8/90

inquest - interest in the subject or result of the

and then the description of the rights that follow

are set out. That is the area in which, we

respectfully submit, the Coroner does, as a

threshold matter, exercise his discretion as to

· whether or not he will admit a person to the series

of specific opportunities which are listed

thereafter. That he:

(a) may attend personally or by counsel; and

(b) may examine and cross-examine witnesses -

and so on. We respectfully submit, Your Honour,

that the interest or:

sufficient interest in the subject or result -

is a question of the Coroner under section 24(1)

and to that extent the rights of the person who is

so admitted flow from his decision at the very
beginning, in contrast to what we say is the

terminal decision of whether or not he has a

discretion to refuse to hear an address at the end
of what in this case is approximately 1000 pages of

transcript taken over a short number of hearing

days but a very long number of witnesses and a long

number of hours.

TOOHEY J:  Is it the length of the hearing that somehow

generates the right to address, or is it something

that just arises incidentally from the grant of a

right of appearance?

MR MURRAY:  The right to address, Your Honour, arises from

the rights of natural justice which, in these

circumstances, this quasi judicial proceeding, or

this administrative proceeding presided over by a

judicial officer, this inquiry, the right to

appear, we respectfully submit, flows from the

nature of the tribunal and it is added to and

supported by the provisions of section 24 itself.

The general principle is that the rules of

natural justice will give to a person who is not in
the strict sense a party but who has the right to

attend and be heard full rights to be involved in

the proceedings which would include, in this case,
the right to be heard at the end. It is a relevant

consideration as a matter of fact in this case that

the case was substantial, but nevertheless, our

submission will be that in all proceedings where a

person has to make a decision, and they are very

important decisions under the Western Australian

Coroners Act or all coroners in this country, that

Annetts 9/8/90

the decision-making process is assisted and

potentiated by the giving of the right to a hearing

to those who are before the tribunal at the bar

table.

MASON CJ: Are you contending for an unqualified right to

address?

MR MURRAY:  Yes, Your Honour.

MASON CJ: What, on any issue at all that might arise for

consideration?

MR MURRAY:  An unqualified right to make a relevant address.

The same right to make an address that all courts

grant to a person who is representing a party.

MASON CJ: Yes, but what do you mean by the word "relevant"?

Do you mean "relevant to an interests that your

clients had"?

MR MURRAY:  Yes, and relevant to the deliberations the

coroner has to make.

MASON CJ: What, you mean relevant to any matter that he may

take under consideration?

MR MURRAY:  Relevant to any matter which is properly before

him and which was properly part of his

jurisdiction: the fullest right to be heard; not

only a restricted right concerning matters that
might be within the purview of fact relating to the

people being represented by the individual, but to

the general spectrum of matters within the

jurisdiction.

MASON CJ: Are you suggesting that you had a right, for

example, to make a submission that certain people

should be committed for trial?

MR MURRAY: Certainly.

McHUGH J: You would not submit you could go outside what

you had a sufficient interest in, would you?

MR MURRAY:  Of course not. Your Honour, if I even said,

"The subject or result of the inquest", I could not go outside the subject of the inquest. I could not

outside the matters with which the Coroner could

lawfully concern himself. The Coroner is required

to find the manner and cause of death, the usual

things, he has got the. He has got the power to

make riders. In the Coroner's Act of Western
Australia there are additional considerations

concerning children. My client's offspring was a

child within the definition of the legislation and,

for example, there is another jurisdictional topic

Annetta 4 9/8/90

as to a death that occurs in a children's home or

some words like that.

Our submission is we have the right to make a

submission on any of those matters that are

legitimately relevant to the jurisdiction being

exercised by the Coroner. For example, we would

have the right, as Your Honour the Chief Justice
has heard from me, that X and Y should be charged

with certain criminal offences. That cannot be

made capriciously; it cannot be made irrelevantly; it cannot be made without foundation; and we would

immediately say that the right of the Coroner to

control his proceedings would prevent there being

anything developed which would be unreasonable or

contrary to the interests of the administration of

justice.

Just on that point, Your Honours, it is well

known to the judicial process that private citizens

have the right to lay an information for crime, for

example, and to conduct committal proceedings and

further to that the Criminal Code of Western

Australia and the code States provide for that in

the code and, indeed, in Western Australia, the

Code makes a fairly wide provision, Your Honour,

for a private citizen to - I have the sections here

in my notes, Your Honours, it is WA - the Code is

section 20 and the Queensland Code is section 686

which at least support the common law right of a

citizen to lay and conduct prosecutions on criminal

information and in Western Australia, perhaps, it

goes a little further than it does in other places.

BRENNAN J: At their peril, of course, Mr Murray.

MR MURRAY:  Of course, Your Honour, as would be, I suppose,

in the curial sense, if one were to make a

submission that X and Y should be committed or

should be charged with such an offence that is a

submission that you make, not in the sense of being

actual peril in the sense of being at risk of

defamation and so on but it is a matter that you

would make at your peril of being criticized or

contradicted or even told to desist.

Your Honour, it is a question of whether or

not the right to make a submission interferes with

the jurisdiction that is being exercised or whether
or not it, in fact, supports it, enhances it, and

we are submitting entirely the latter.

It would be a distortion we, with every

respect, submit to take just the question of the

possibility of an accusation of crime being made in the area of an address and say that that limits the

right for any person to make an address.

Annetts 5 9/8/90

Just to dwell on it for a brief moment, before

I go on, frequently - and this is the case that

occurred in Western Australia in the instant case -
the police not only are involved because of their

duties and not only are they involved because of

their investigations, but they appeared to assist.

There was no other authority assisting the Coroner

and we respectfully submit that that is a reminder

that there are circumstances in which someone

assisting, in a different sense, should be able to

be heard in the question of public law matters.

The purpose of an address is to protect the

interest of the person who has been permitted to

attend and we have satisfied the Coroner that we

have a sufficient interest in the subject, or

result, and therefore I respectfully submit that

the person who has been found to have that

sufficient interest has a wide-ranging legal right

to be heard in submission, or address, at the end.

TOOHEY J: But does that right derive from the Act or does

it derive from some other foundation? This is why

I am having difficulty with. I can understand a

submission that put, the Coroner's Act to one side,

You have a coronial proceeding, whatever the Act might say, unless it positively excludes an

address, procedural fairness requires that in

particular circumstances counsel should be given

the opportunity to address the coroner. But if
that is not what you are saying, and I do not think

it is, do you then seek to find within the Act

itself some right to be heard, as opposed to

invoking the exercise of a discretion to be heard.

MR MURRAY:  I have not made myself clear, Your Honour. I

say that the person who appears has been granted

the right to appear before the coroner, has the

right to address the coroner on matters relevant to

the coroner's jurisdiction. In this particular

instance that right, Your Honour, is supported by

the legislation.

That is what we say. We say that in this

country the coroner's jurisdiction is such, he

being a judge in a court of record, that the rights

which accrue to a person in those circumstances,

which flow from cases such as Tanos and the cases

that have followed it, make it absolutely clear

that in the absence of express legislative sections

to the contrary that right would include the right

to make a submission. And section 24 in no way

cuts that down. Section 24 is just a timely

reminder that at the time of the enactment of this

legislation in 1919-1920, the legislation intended

to grant wider than the view that people might have

held as to the right of people to come before the

coroner and participate.

Annetts 6 9/8/90

.It is wider, we respectfully submit, than the

discretion which was said to have been currently

and earlier being exercised by the coroner in

England because in England the discretion of the

coroner was not only to permit people to appear but

his discretion was to whether you could question or

cross-examine witnesses and, thirdly, his

discretion was to whether he would permit a party

to address him at the end. There are different

provisions as to whether or not a person in England

was permitted to address a coroner's jury.

Therefore, I say, that not only under the

common law, but also pursuant to the relevant

legislation, it is clear that the right to attend

should be read as the right to appear and that

clearly includes the right to be heard, and it is

not a matter of the interest issue being written

down. We say, as I have emphasized, that the

sufficient interest has been found by the Coroner

at his threshold determination and once he is

granted the right to attend our rights are

thereupon crystallized, and we say that that

invokes the principles of natural justice.

Whether or not we are a party is irrelevant

and that has been determined, we would respectfully

submit, by this Court in Lieschke's case and, for

example, at page 459 point 10 from the judgment of

Your Honour Justice Brennan, we say that interest

has been held in this Court to include reputation -

that goes back to Tanos, of course - the judgment

of Your Honour Justice Mason in Kioa's case at

page 582 point 9, in Kioa Your Honour
Justice .Brennan at page 618 point 9, and

Your Honour Justice Brennan, as I have said, in

Lieschke's case but also at page 458 point 4.

Your Honour, I do not for a moment suggest

that there is a discretion in the Coroner as to who

can attend, but once a person does attend, then he

has full rights which cannot be written down,

unless they are found to be written down by the

terms of the section or by some other consideration

which does not, in our respectful submission, exist

here.

BRENNAN J:  Mr Murray, I understand that the argument that

where there is to be an exercise of a statutory

power which is apt to affect an interest, then

there is a requirement that the exercise of the

power be attended by the according of natural

justice. Is that the way in which you put it here

under section 24?

MR MURRAY:  No, Your Honour. We put that this is more than

a statutory such as something determining

Annetts 9/8/90

immigration or deportation, or something

determining planning and environment considerations

or matters such as that. We say that the Coroner

is exercising part of the judicial - jurisdiction

is part of the judicial system, and the phrase used

in Halsbury, for example, is that the Coroner is a

judge and the Coroner's Court is a court of record.

We say that to go to the cases whereby this

Court has somewhat importantly changed or re- emphasized the law as far as statutory bodies are

concerned is to put an unnecessary set of

restrictions on, or to go to unnecessarily new

concepts of legitimate expectation and so on;

whereas, what we are espousing is a right that

exists because the Coroner's Court is a court. It

is a court that gives to people the rights that are

ordinarily expected of a court. It is a court that

is conducting an inquiry. They are not strictly

judicial proceedings. There are no parties. It

has been held, for example, in the New South Wales

Court of Appeal in the matter of

Bilbao v Farquhar - I will not say they had no

trouble, Your Honours, but they were able to grant

or to find for the relatives of a deceased person

sufficient interest not only to participate in the

coronial inquest, but to take prerogative

proceedings in the Court of Appeal in order in that

case to seek a new coroner's inquest.

BRENNAN J: What is the interest here which is protected by

natural justice? Is there any interest on which

you focus, or do you put it in some other way?

MR MURRAY:  Both, Your Honour. I say that the determination

of our interest was a threshold matter. However,

answering the question in the broad, I say that our

interest is in the subject or result. The subject

is the death of the boy and the result, of course,
is what recommendations, riders and considerations

flow from it.

We say also that we have an interest in

matters affecting the reputation of the deceased,

remembering that their employment and their

behaviour was under great scrutiny and, indeed, to

a major extent, our own reputation because we were

involved in speaking to and talking with the

employer's representatives in the time of the boys'
disappearance and during the search. Those are

matters which, we would respectfully submit, on

either view - either the statutory body view show

us having sufficient interest or on the view that

we are putting that it is an interest which is in

the subject-matter or result of the inquest to be

determined as a threshold matter and then follows

just as if it were judicial proceedings. And, we

Annetta 9/8/90

say that the right to appear, Your Honour, is, of

course, the right to be heard.

As an illustration of the way that parents and

children's legal rights have been considered,

Your Honour, Liesche, 162 CLR 447 at page 458,
Your Honour Mr Justice Brennan had these things to

say, picking up the sentence at page 457 -

Your Honour remembers that case being about

proceedings taken before a children's court's

magistrate where the children were to be charged in the incredible archaic terminology of the time with being neglected children. It is a different set of circumstances in one sense but appropriately

relevant in another.	Your Honour says this at the
bottom of page 457:

In general, the principles of natural justice must be applied however grievously the parents

or guardians may be suspected to have failed
in their duty to the child brought before the

Court. The right to be heard is the more important when the issues are grievous.

A bit further down, if Your Honours please:

There is a natural reciprocity between

the duty and authority of parents with respect

to the nurturing, control and protection of

their child and the child's rights and its

interests in being nurtured, controlled and

protected -

and I emphasize the next sentence:

The natural reciprocity between the interests

of parents and child means that both the

parents and the child have an interest in
proceedings leading to the exercise of a power

which is apt to affect the relationship

between them.

Analogous, we respectful! submit, to the rights of

a parent to appear before the Coroner investigating

the death of one or more of their children.

We do not however, Your Honour, restrict it to the parent/child relationship at all. We say that

the right - if I have answered Your Honour

Mr Justice Brennan's question - is broadly from the

common law and it is supported by the provisions of

section - - -

MASON CJ:  Was there any possibility, on the evidence, that

adverse findings could be made by the Coroner

against your clients?

MR MURRAY: Findings, Your Honour?

Annetta	9	9/8/90
MASON CJ: Yes.

MR MURRAY: His findings are restricted to the manner and

cause of death.

MASON CJ: But you were suggesting before that your clients

had an interest in terms of conversations that they

h~d with other people relating to investigations

into the deaths.

MR MURRAY:  It was concerning, Your Honour, the question of

reputation. That was the point I was endeavouring to make then and there. Findings of fact could be

made adverse to my clients.

MASON CJ:  On the evidence?

MR MURRAY:  On the evidence, Your Honour. It was said

during the evidence that my clients were interested

solely in getting the money that their boys had due
to them and that they were not really concerned -

and I do not think I am exaggerating this, this is

at least the topic, that their concern when they

telephoned the station was more about their cash

entitlement than their whereabouts.

TOOHEY J:  How could the Coroner possibly say anything about

that?

MR MURRAY:  Your Honour, as I said there was no finding that

could possibly - - -

TOOHEY J: Could it even have been the subject of comment by

the Coroner?

MR MURRAY:  Your Honour, why not? There is nothing to

restrict the Coroner in what he says at the end in

giving his reasons and it is frequently done that

comment is made about the evidence before him and

the conduct of those who have been involved. Just

as the boys' conduct was subject to lots of

evidence, Your Honour, as to whether they had, for

example, stolen a motor vehicle; whether somebody

had rolled that vehicle - I am not certain as to

the association between those two sets of facts;

whether they had deserted their post; whether they

were running away with a stolen vehicle. Those

were matters that were very much relevant to the

evidence given by some of those who were called

before the Coroner, Your Honour. The boys

themselves were the subject, in some of the

evidence, of significant criticism.

TOOHEY J: Well, you can understand that, perhaps, because

that may have had some bearing upon the cause of

death; in other words whether they left with the

vehicle that was stolen or whether the vehicle

Annetts 10 9/8/90

contained water and provisions. I mean, all those

sort of questions may, in the end, have had

something to do with the cause of death but it is

very hard to see how conversations that your

clients had post-death with somebody at the station

could have been regarded by the Coroner as relevant

even by way of comment.

MR MURRAY: Well, Your Honour, it certainly could not be the

subject of a finding but, nevertheless, it was

something even if one made the submission just as

it had fallen from Your Honour Mr Justice Toohey to

make sure that the Coroner did understand that it

formed no part of his consideration and should not

be addressed at all even in making a comment in his

reasons for his findings. But the other matters,

Your Honour, are quite extensive in that the

conduct, the working conditions and the treatment

of the two boys were matters to which great

attention was given and about which it is not

possible, reasonably, to assimilate, to consume the

evidence unless it is looked at from the point of
view of hearing a submission.

The law consistently says that the case is not

over, that the decision cannot be made until the
hearing is at an end and the hearing includes the
submissions. There is no reason of policy and

there is no reason of function that indicates why

the Coroner should not hear a submission. No one

is to be disadvantaged by the hearing of a

submission and nothing in the legislation says that

there is any restriction upon whether there should

be the h~aring of a submission. The only straw

that seems to be being grasped is the relationship

of some practice that is alleged to have occurred

in England and which has been recently enshrined in

rule 40 of the Coroners Rules, and that cannot have
any relevance at all to a procedural right in

Australia to fairness, what may have been put in the Coroners Rules in the United Kingdom in the

last 10 or 20 years. We may have gone our own way.

BRENNAN J:  Mr Murray, is there any case, apart from the

case arising from the Erebus disaster, which I

think is Mahon v Air New Zealand - is there any
other case that deals with natural justice to be be

extended by an authority holding and inquiry.

McHUGH J: Yes, Bread Manufacturers v Evans in this Court.

MR MURRAY:  Yes, in the High Court, if Your Honour pleases,

and - - -

McHUGH J: And that was in a context where the statute gave

counsel certain rights of hearing, if I remember

rightly - or the party's rights of hearing.

Annetts 11 9/8/90

MR MURRAY:  Maksimovich v Walsh, Your Honour, is a case -

thank you, Your Honour Mr Justice McHugh - in

(1985) 4 NSWLR. Maksimovich v Walsh, which is a

decision of the Court of Appeal, Mr Justice Kirby,

President, Mr Justice Samuels and Your Honour

Mr Justice McHugh, Justice of Appeal as you then

were and, Your Honour, it is relevant to the

question of the rules of natural justice applying

to the coroner. As I understand the position,

Your Honours, it is common ground between ourselves

and the Attorney General or Western Australia that
the rules of natural justice do apply to and bind
the Coroner. The only issue, Your Honour, is
whether the right to be heard is the subject of a

further discretion by the Coroner or whether it is

a legal right that flows from being admitted under

section 24(1).

And we say, that it is, the admission under section

24(1) that gives you the standing to be there and

thereafter you have the right to assist in every

way.

We, indeed, just having mentioned, Your Honour

Mahon v Air New Zealand, it is authority for the

proposition that it is a deni~l of natural justice,

or unlawful to refuse to have an address denied.

That is not on our list, Your Honour, (1984) AC,

Your Honour, and I will just give Your Honours the

page which supports what I have just said the Privy

Council's advice indicated. Whilst that is being turned up, Your Honour - and I will just give the

page - the purpose, as I have said, of you

attending is to protect the interests you have

persuaded the Coroner you have, and it is a far cry

from a right to be heard, for example, in a

tribunal determining whether you should be
deported, or the Victorian Police Commissioner,
such as O'Rourke v Miller, determining the rights
of a constable before he is dismissed by the

Victorian Police Commissioner, we say because the

proceedings are vitally different. That is at

bottom of 820, Your Honour, of Mahon v Air New Zealand, to which I just made reference.

We respectfully say that from Tanos on, this

aspect of it being part of the full rights is to be

found and section 24 just adds clarity to the fact

that that is the intention of and the legal effect

of the legislation with which the High Court is

dealing and if full rights, Your Honour - if I am

correct and that full rights are accorded to a

person by the Coroner when he finds they have

sufficient interest, no one suggests that those

rights exclude the right to address, and we

respectfully submit a denial of an opportunity to

address is unlawful and unreasonable and I point,

Your Honour, to various sections of the Act. For

Annetts 12 9/8/90

example, I take Your Honours just as I develop this

aspect of the submission to section 11(5) of the

West Australian Coroners Act which is in these terms.

Where an inquest is held touching the death or suspected death of an infant, the coroner or the jury, as the case may be, may inquire, not only into the immediate cause of death or the circumstances of the suspected death, but also

into all such circumstances as may throw light

upon the treatment and condition of the infant

before death or before the time when death is

suspected to have occurred and into such other

matters as, in the opinion of the coroner,

require investigation in the interests of

public justice.

If I might refer back, Your Honour, to the

question asked of me by Your Honour

Mr Justice Toohey, there is a lot more to the issue

of the treatment of the boys than would ordinarily

occur by the provisions of section 11(5) as well

and that is another matter in which -

DEANE J:  Mr Murray, what was it you just read out, I am

sorry, I - - -

MR MURRAY:  Section 11(5) of the Western Australian Coroners

Act, Your Honour.

DEANE J:  Section 11(5). Do not go back to it. I heard it

but I have not found it.

MR MURRAY:  Yes, that is what it was, Your Honour. And,

Your Honour, we therefore say that that is an example of a jurisdictional area relevant, in the words of section 24, to:

the subject or result of the inquest - upon which the parents must have the right to be
heard.	How could we possibly participate by being

present and having the rights of appearance if we

are unable to make submissions on all the

circumstances as may throw light upon the treatment

and condition of the infant before death.

Your Honours, it does not form part of the

submissions that I am making to refer to the facts

of this case but very, very briefly, as you will

see from the judgments below, these were two

teenage boys who were put out miles from anywhere

on their own to manage, respectively, two very

large gigantuan size stations and they were put out

on their own in circumstances which warrant

attention; without light, it is said - without

Annetts 13 9/8/90

adequate light; without refrigeration, it is said -

without adequate refrigeration; without

communictions - without adequate communications;

without supervisions;• without any proper attention

to their health and not wishing to put too fine a

point on it, Your Honours, it is Dickensien, it is

relevant of the song of the shirt to be listening
to the evidence.

Now, that is not part of my submission here but certainly, Your Honour, it would be a matter

that calls for comment in an address. The answer

given by the Coroner when he said, "I'm going to

exercise what I find is my discretion not to hear you" - the parties - "is because I've listened to

the cross-examination and I have got, as it were,

the gist of what you were saying."	I note the time,
Your Honour.

MASON CJ: Yes. Well, it would be convenient to adjourn

now, Mr Murray. We will resume at 2.15.

AT 1.01 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.17 PM:

MASON CJ: Yes, Mr Murray?

MR MURRAY:  May it please Your Honours. Your Honour, might

I take Your Honours to one or two further parts of

the Act. I have read Your Honour the provisions of

section 11(5) and I respectfully submit that there

is no satisfactory answer to a rhetorical question

such as, "What part of that jurisdiction, or what

part of the nature of the jurisdiction conferred by

that is harmed or interfered with by the right
which I support?".	I am referring Your Honour, of

course, to the line of authority which was

addressed in Lieschke, 162 CLR 447 and I wish to

direct Your Honours' attention to the lead judgment

at page 456 at about point 5:

The general principle which governs this case

is clearly established. It is stated by

Barwick CJ in Twist .••..

"The common law rule that a statutory

authority having power to affect the rights of

a person is bound to hear him before

exercising the power is both fundamental and

Annetts 14 9/8/90

universal ... But the legislature may displace

the rule -

and so on. The judgment goes on:

The principle governs the proceedings of

administrative agencies and, a fortiori, the

proceedings of the established courts.

I submit that the Coroner's Court is part of, one

of, the established courts and I am supported in

that by the authority of Halsbury. The judgment

refers to the joint judgment of Sir Owen Dixon and

Mr Justice Webb in Tanos. It goes on:

That is not to say that the content of the

principles of natural justice to be applied by

a court take no account of the nature of the jurisdiction to be exercised. The nature of

the proceedings, the powers to be exercised

and the prescribed rules of procedure may

affect the extent to which a plenary right to

be heard may be qualified, even in curial

proceedings -

reference is made to Ludeke Ex Parte Customs

Officers' Association:

Like the Chancery jurisdiction in wardship,

the jurisdiction of the Court under section 82
of the Act is to be exercised primarily for
the benefit of the child and the exercise of
that jurisdiction may require a determination

as to the person in whose care the child

should be.

A bit further down after the quote "In re K.

(Infants):

If an unqualified application of the principles of natural justice would frustrate

the purpose for which the jurisdiction is

conferred, the application of those principles

would have to be qualified: see Kioa v West.

In some custody proceedings, some

qualification of the principles of natural

justice may be necessary in order to ensure

paramountcy to the welfare of the child;

e.g., it may be necessary to keep a welfare

report confidential, as in In re K. and as provided for in s.89(3) of the Act. But a

desire to promote the welfare of the child

does not exclude application of the principles

of natural justice except so far as is

necessary to avoid frustration of the purpose

for which the jurisdiction is conferred.

Annetts 15 9/8/90

I respectfully submit, with respect, how could

under Section 11(5) of the Western Australian	a submission frustrate the jurisdiction conferred
Coroner's Act?

McHUGH J: But Mr Murray, is not your principal difficulty

this, that those cases are concerned with the

exercise of a power which will affect a person's

rights or legitimate expectations. Unless the

Coroner was going to make some finding that would

affect your client's interests, at common law you

would have no right to be heard.

Now, if you look at it in that context it may

be arguable that your only right to be heard at

common law is a right to be heard in respect of any

matter which may affect your client's interests

adversely, and that would include the children.

MR MURRAY:  Yes, that is my submission, Your Honour. And

indeed, for example, section 11(5) which I have

reached at the moment is an example of an area in

which my interests would be clearly concerned.

McHUGH J: But supposing the Coroner does not intend to make

any finding adverse to your client at all? At

common law you have no right to be heard, and these

cases do not assist you.

MR MURRAY: But, Your Honour, I do not know that he is not

going to make any such finding until the case is

over, and the cases - - -

McHUGH J: Then it may be a Mahon's case, that if the

Coroner was to make some finding which affected
your client's interests without hearing you, you

can have the coronial inquest quashed on common law

principle.

MR MURRAY:  Your Honour, I will certainly answer

Your Honour's question to me about my client's

interest because I respectfully submit that my

client's interests are concerned, for example, with	11(5). That is the outcome and the subject-matter.
I have the right, I respectfully submit, to
influence whatever he may decide to say, for
example, about 11(5). Otherwise, there is being
read into the provisions of the Coroner's Court
something which has to come from some straining of
the Act itself, or there is some new principle
being applied.

McHUGH J:  That is what I am putting to you, that the

common law will not help you because at the moment

you do not know whether or not there is going to be

any finding adverse to you. So that will not give

you a general right to make submissions. Therefore

Annetta 16 9/8/90

you have to find it in the Act and where is there

in section 24, or any other section, which gives

you that right to be heard generally?

MR MURRAY:  Well, Your Honour, I respectfully submit that

the common law does, with the greatest of respect,

assist me, Your Honour. I do have the right to be

heard once I am given the right to attend and

examine and cross-examine. My rights spelt out of

the statute to examine is presumably associated in

the traditional meaning of the word with my right

to provide evidence which, whether it comes through

the counsel assisting the Coroner, or whether it

comes from me, I examine.	Then I have the right to
cross-examine that witness.

McHUGH J: Well, a statute gives you that right, but it does

not in terms give you a right to address, unless
you get it out of the word "attend", which I

understand is your argument.

MR MURRAY:  But with respect, what the statute does in

relation to the time at which it was enacted, 1919

and 1920, was to provide for something which was

very different from the law against the background of which the legislation was being introduced. It provides something which is a matter of right, once

you have the right to attend, which was not

available as of right in the United Kingdom, for

example.

McHUGH J: Or in Australia, probably.

MR MURRAY:	Or perhaps in Western Australia, let me say.
McHUGH J:	You see, the theory would have been in 1920 that

a Coroners Act did not affect any existing legal

right, therefore the rules of natural justice did

not apply to it. Against that background,

section 24 can be seen as militating the position

by giving you certain limited rights and the

development of the common law since 1920 no doubt

would give you a right to be heard before any

adverse finding was made contrary to your client's
interests; but it is another question as to

whether, either under the Act or under the common law you have a general right to make submissions.

MR MURRAY:  Your Honour, the right to appear by counsel

seems to have been recognized at various points in

the history of the Coroner for several hundred

years and there is a case or cases - one of them I

cannot read because it appears to be in what I

suppose is Norman French - in which circumstances

where the necessity to hear people in proceedings

where felo de se was involved resulted, or failure to hear people - and I presume it is referring to,

Annetts 17 9/8/90

as I recall it - this is not authoritative - that

if someone died of their own hand the King had some

interest in the deceased's possessions, but the

case which I will refer Your Honours to if you

wish, or the name is on our list, is authority for

the proposition that if in the absence of hearing

counsel in circumstances such as that the superior

courts would set aside, in the parlance of today,

the Coroner's inquest.

I respectfully submit the common law does not

preclude, as of 1919, the right of someone to appear in the broadest sense in the Coroner's

Court. It may be that it was a matter associated

with discretions then, Your Honour, but my

submission is that the common law did not exclude

the right of peoples to appear. The whole history

of the Coroner one could go into if one had the

time and the intriguing legal history of it all and
the peer group and there being permanent and

temporary jurors and so on, it is all fascinating

but taking it as quickly as one can to the 20th

century, I would respectfully submit there is

nothing in the common law which indicates that

there was not a recognized right to appear; it was based upon discretion. It may have been based upon a discretion as to whether you would cross-examine

witnesses; it may have been based upon a

discretion as to whether you could make an address;

but the opportunity to do those things was not

unknown to the common law.

The law has moved since those days and rights

traditionally associated with the rights of

appearance at common law, the right to be heard,

have advanced a long way and this legislation gets

the benefit of it in my respectful submission.

People who get the right to attend get the benefit

of it. So the common law of today puts light upon

the meaning of section 24 and I respectfully submit

that if that finds some favour in the eyes of the

Court that my argument is sustained because then we

be heard in judicial proceedings or quasi-judicial	go to provisions such as, "What are the rights to
proceedings?", and there is no doubt that that
includes the right to be heard.

If my right to be heard is restricted to the

interest which I have established to the

satisfaction of the Coroner at the beginning under

section 24(1), so be it, because then my interest

coincides with the subject-matter and the likely

outcome of the Coroner's inquest. And it may well

be that my right to make an address relates to my

right to make an address relevant to the interests

and possible outcome of the Coroner. For example,

the Coroner is required to find out whether certain

Annetts 18 9/8/90

accidents resulted from breaches of legislation to

do with mines and factories - and I will take

Your Honours to that in just a moment - but he must

not make a finding tnat some person was guilty of a

criminal offence.

That is a matter that has attracted this

Court's attention recently in the ICAC of New South

Wales v Balog and whilst I do not propose to go to

that type of argument the important of the

is hear a submission to the effect that this indicates that so-and-so was driving on the wrong side of the road whilst his blood alcohol

distinction real and whilst on the one hand the therefore to

content was point .08 or he had his eyes shut", and

therefore the Attorney-General or the Director of

Public Prosecutions might well be concerned about

section 52A of the New South Wales Crimes Act,

culpable driving.

And I do not, Your Honour, find any discomfort

in the restriction of my right to be heard as a

right to protect my interest because when you look

at the provision for riders and the other

jurisdictional areas with which the Coroner is

clothed, it is very very extensive.

It may be one simple point and an illustration

will not help the argument, or it may be a case,

such as the one with which Your Honours are

dealing, where the most broad area was involved.

May I just go a little ahead of the stage at which

I am in my argument, Your Honour? But the question

of the adequacy of the search response in the arid
north-west; whether or not the police radio network

was adequate; whether or not the provisions of

money to the police officers on the ground - public
moneys - permitted an adequate immediate response;

whether the Aboriginals' communities living in the

Tanami Desert should or should not have been

involved, or should in future be involved; whether

or not the fact that there was no signposting, no

warning to people; now, these are matters,

Your Honour, that would be certainly involved in

the outcome, possibly, of the Coroner's inquest,

with which my clients are interested and vitally concerned because the purpose of the rider, with which the Coroner is under the common law and also

by this statute close, in part, is to prevent a

recurrence of this tragedy, or similar tragedies.

Are we not, I would respectfully submit,

entitled to have an interest. May I just take

Your Honours - again jumping away from the theme of

my intended sequence - to the way that the New

South Wales Court of Appeal, in Bilbao v Farquhar,

Annetts 19 9/8/90

addressed the question of whether, under the
appropriate New South Wales Act, the relatives of

the deceased had a sufficient interest to bring

prerogative writ proceedings in the Court of Appeal

to compel the Coroner, Mr Farquhar, to do certain

things and it, Your Honour, is reported - I think I

gave Your Honours the reference, (1974) 1 NSWLR.

I am responding to Your Honour

Mr Justice McHugh's question, with a view to saying how wide even the description of my right to address associated with my interest. There are three

judges: Mr Justice of Appeal Hardy has a few lines

at 379; Mr Justice of Appeal Hutley is at 379, and I

want to take Your Honours to Mr Justice Hutley

at 380, and section 165 of the then Common Law

Procedure Act, and Your Honour sees there at the top of page 380, not wishing to do other than bring

Your Honours to the part that I rely on, at point D:

The legal status of the Commissioner of Police

is still that he is a justice of the peace, as

well as a constable.

Could I just pause there, Your Honour, while I am

reminded of something that I should have given in
answer to Your Honours earlier.

On the question of, let me give a generic term, culpability, with the qualification to which

I have drawn attention that it is not available to

talk about the commission of an offence, as far as

culpability is concerned, it must include the broad

spectrum of who is responsible, including, where
necessary, an appropriate criticism of the conduct

of police officers, who, as I said earlier,

traditionally assist the coroner. I read on:

No doubt the party who applies for mandamus

must show that he has sufficient interest to

be protected and that there is no other

equally convenient remedy; but once this is

shown, the remedy of mandamus is available -

and so on.

The interest claimed here is not a

pecuniary one, as it is not suggested that the

applicant has suffered any pecuniary loss by

reason of the death of her brother. The

interest advanced is familial, and it seems to

me that, as the circumstances of his miserable death may reflect upon the family, she has the requisite standing to demand of the officer of the State of New South Wales charged with the

responsibility of investigating the

circumstances of this death that he carry out

Annetta 20 9/8/90

his duties, whatsoever they are. Subject to

the effect of s.37 of the Coroners Act, in my opinion, the plaintiff is a person personally interested in the performance of any duty

which the defendant -

that is the Coroner -

may have.

It may be one simple point and an illustration

will not help the argument, or it may be a case,

such as the one with which Your Honours are

dealing, where the most broad area was involved.

May I just go a little ahead of the stage at which

I am in my argument, Your Honour? But the question

of the adequacy of the search response in the arid
north-west; whether or not the police radio network

was adequate; whether or not the provisions of

money to the police officers on the ground - public

moneys - permitted an adequate immediate response;

whether the Aboriginals' communities living in the

Tanami Desert should or should not have been

involved, or should in future be involved; whether

or not the fact that there was no signposting, no

warning to people; now, these are matters,

Your Honour, that would be certainly involved in

the outcome, possibly, of the Coroner's inquest,

with which my clients are interested and vitally concerned because the purpose of the rider, with
which the Coroner is under the common law and also

by this statute close, in part, is to prevent a

recurrence of this tragedy, or similar tragedies.

Are·we not, I would respectfully submit,

entitled to have an interest. May I just take

Your Honours - again jumping away from the theme of

my intended sequence - to the way that the New

South Wales Court of Appeal, in Bilbao v Farquhar,

addressed the question of whether, under the

appropriate New South Wales Act, the relatives of

the deceased had a sufficient interest to bring

prerogative writ proceedings in the Court of Appeal

to compel the Coroner, Mr Farquhar, to do certain

things and it, Your Honour, is reported - I think I

gave Your Honours the reference, (1974) 1 NSWLR.

I am responding to Your Honour

Mr Justice McHugh's question, with a view to saying

how wide even the description of my right to address

associated with my interest. There are three

judges: Mr Justice of Appeal Hardy has a few lines

at 379; Mr Justice of Appeal Hutley is at 379, and I

want to take Your Honours to Mr Justice Hutley at 380, and section 165 of the then Common Law

Procedure Act, and Your Honour sees there at the top

Annetts 21 9/8/90

of page 380~ not wishing to do other than bring

Your Honours to the part that I rely on, at point D:

The legal status of the Commissioner of Police

is still that he is a justice of the peace, as

well as a constable.

Could I just pause there, Your Honour, while I am

reminded of something that I should have given in
answer to Your Honours earlier.

On the question of, let me give a generic term, culpability, with the qualification to which

I have drawn attention that it is not available to

talk about the commission of an offence, as far as

culpability is concerned, it must include the broad

spectrum of who is responsible, including, where

necessary, an appropriate criticism of the conduct

of police officers, who, as I said earlier,

traditionally assist the coroner. I read on:

No doubt the party who applies for mandamus

must show that he has sufficient interest to

be protected and that there is no other

equally convenient remedy; but once this is

shown, the remedy of mandamus is available -

and so on.

The interest claimed here is not a

pecuniary one, as it is not suggested that the

applicant has suffered any pecuniary loss by

reason of the death of her brother. The

interest advanced is familial, and it seems to

me ·that, as the circumstances of his miserable

death may reflect upon the family, she has the

requisite standing to demand of the officer of

the State of New South Wales charged with the

responsibility of investigating the

circumstances of this death that he carry out

his duties, whatsoever they are. Subject to

opinion, the plaintiff is a person personally	the effect of s.37 of the Coroners Act, in my	interested in the performance of any duty
which the defendant -

that is the Coroner -

may have.

Now, taking those words, Your Honour, and

applying them to the situation before the Court, I

respectfully submit, that the interest is, even if

one is against me on the argument I have put

forward about the effect of the threshold decision

under section 24(1), the interest is certainly a

wide interest and it could be that

Annetta 22 9/8/90

Mr Justice Hutley is putting it extremely widely

because he says the interest is familial or he is

putting it on a question of reputation. It is
difficult to determine exactly what. And

Mr Justice Bowen, in the same case, at page 385,

makes just the statement:

The first question which arises is

whether the plaintiff, Maria Jesus Bilbao, who

is the sister and nearest living relative of

the deceased has a sufficient interest to
entitle her to bring the proceedings. Having

regard to the terms and the scope of the

Coroners Act, I think that she does have a

sufficient interest.

She was presumably, Your Honour, admitted in the

light of what His Honour has said because of her

familial interest and perhaps also because of the question of, in the eyes of Mr Justice Bowen, the

outcome. Bilbao was a case where Mr Bilbao met his

death in the cells at the central police station in
the custody of the police. Some police officers

were later charged with murder as a result of, I think, the second inquest which was ordered as a

result of at least those proceedings or others.

Another case, Your Honour, to which I wish to

make reference, is Lisafa Holdings v

Commissioner of Police. It is a decision again of

the New South Wales Court of Appeal consisting of
the Chief Justice Sir Laurence Street, the

president Mr Justice Kirby and Your Honour

Mr Justice McHugh, as you then were. At page 22

there is a heading,"The right to be heard".

Your Honour, very briefly and by way of background,

the case involved a declaration under the New South

Wales Ga.ming and Betting Act and it is an extra

judicial or administrative tribunal type of case.

The right to a h~aring:

The right of a person to be heard before

he is affected in his person or property -

And the word "person" of course, Your Honour, go right back to Tanos and cases before it and involve

reputation -

or property by a judicial or executive act is

deeply entrenched in the common law.

Well now, Your Honour, if I could just pause there and answer Your Honour Mr Justice McHugh by saying,

if that only applies to statutory tribunals such as

the Gaming Commission of New South Wales it means

that there is a narrower right in a statutory

authority than there is under a quasi judicial

Annetts 23 9/8/90

ancient common law institution such as the Coroner,

and I am sure Your Honour does not mean that.

McHUGH J: Well, except in that case they were taking away a

person's business just on a notice without even

hearing him.

MR MURRAY:. But, Your Honour, that is merely a specific

example of a proprietary right, the right in rem.

There are many rights other than rights in rem.	It
is very easy when we are talking about our rights
to avoid, for example, an order for costs as was happening in Mahon v Air New Zealand or being put off the racecourse as happened in Wheatley's case, or the development application as in Twist v
Randwick Municipal Council and so on;

we are talking here, Your Honour, about rights such

as those which were addressed by the High Court in

Kioa and the case to which I have just referred

Your Honours about the child being charged in

Lieschke which are incorporeal but, nevertheless,

equally as important and perhaps more important

than some of the rights in rem which are easy to

assess.

Indeed, Tanos itself has a right to avoid

being declared as a disorderly house because one's
restaurant was selling liquor without a licence -
the Cedars of Lebanon restaurant that one of the

members of the Bench may recall. I do not mean the

restaurant; the case. If I could read on,

Your Honours:

So jealously have the courts guarded this

common law right that they insist that it can

only be abolished by the clearest indication

of legislative intent. An intention to

abolish the right will not be assumed.

Well, that has become fundamental law in this

community in the last 20 years and, I respectfully

submit, it cannot be narrowed to just statutory

tribunals. It would be a situation that I would

find extraordinary if the person subject to a

possible deportation order has a right to be heard

in order to put argument as to why he should not be
deported and a person who is before the Coroner
determining the circumstances, manner and facts
associated with the tragic death of their son does

not get a right to be heard.

I am sure the common law did not intend that

and in any event section 24 takes a giant step

forward and, if you apply this whole line of cases

to which I am making brief reference, I

respectfully submit that the rules of natural

justice in Australia make it absolutely clear

Annetts 24 9/8/90

unless it can be shown that it is against the

proper performance of the jurisdiction conferred for a right of address to be made. I respectfully

submit that the answer to any such submission is

that it ignores the realities and practicalities of

what the Coroner does.

Well, Your Honours, perhaps if I could assume

that	whilst I have been talking that Your Honours
have	at least glanced at page 22. If Your Honours
will	go to page 23E, point 5:
The right to be heard, like the duty to give
reasons, promotes better decision making.
Experience gained from adversarial litigation
teaches that one or more of the material facts
relied on by a claimant are often easily
demonstrated by his opponent to be incorrect
or misleading.

If I could stop there, Your Honour - and in similar words you could describe effectively the

weapon of cross-examination. However you describe

it it is designed to show that the evidence that

looks great in-chief is less than effective in

furtherance of your opponent's case. Cross-

examination is one of the rights given under

section 24.

As Sir Owen Dixon once reminded us:

" ... Experience of forensic contests should

confirm the truth of the common saying that

one story is good until another is told".

I am certain my learned friend on my right,

Your Honour, is about to make triumphant use of the

very same principle.

Knowledge that a claimant's assertions will be

examined by his opponent also induces the

claimant to take greater care in making Your Honours, if there were established by this assertions.

Court a right for those who are given, pursuant to the discretion, the right to appear before the Coroner in Western Australia that would illuminate the conduct of the proceedings.

MASON CJ: Yes, well, I do not think you need to labour all

this, Mr Murray. We are aware of the advantages

and perhaps some of the disadvantages of
cross-examination in the exercise of the right to

address. There is no need to go through that in

detail.

Annetta 25 9/8/90

MR MURRAY:  I was saying, Your Honour, and perhaps I did not

make it clear, that if there were a right to make

an address at the end, I was merely drawing the

analogy because we are giving the statutory right

to cross-examine. If there were a right to make an

address, it would be an illuminating feature rather

than a - - -

MASON CJ:  That may be obvious. I do not think you need to

stress that.

MR MURRAY: All right, Your Honour, thank you.

BRENNAN J: Mr Murray, if you were assured that the Coroner

was not proposing to make any finding adverse to

the interests which you represent, would it be

necessary to seek the right to address?

MR MURRAY:  Can I answer that this way, Your Honour? I

could only respond to that if I knew the spectrum

of interests with which I was legitimately

concerned. For example, if I was purely there to

ensure that my relative had not committed suicide
and I was very concerned for personal religious
reasons to have no such finding made and the

coroner said from the outset, "Look, Mr so and so,

certainly at the worst it'll be an open finding and

I'm inclined to think that it was natural causes or

whatever". Now, in those circumstances,

Your Honour, there would certainly be no need for

an address. That is almost a finding; it is really

a finding, an anticipation of a finding. Until

that situation is reached, the hearing is not at an

end.

BRENNAN J: But is not the proposition that one derives from

Air New Zealand v Mahon that no finding can be made

adverse to your interests without giving you an

opportunity to be heard?

MR MURRAY:  And, indeed, further than that, Your Honour, and

giving you some warning that such a finding is

likely to come.

BRENNAN J: That is right. Well now, if you are not being

heard, you are entitled to the benefit of that

rule. What else do you want?

MR MURRAY:  The correct rule is, that in Mahon v

Air New Zealand, those concerned with the adverse findings should never have had to go to the Privy

Council. It should have been that they should have

been told then and there at the time so they would

have had the right to be heard.

Mahon v Air New Zealand was not intended, I

respectfully submit, to establish the path to the

Privy Council. It was intended to establish

Annetta 26 9/8/90

guidance for administrative inquisitorial tribunals

that "you will let people be heard".

BRENNAN J: If you propose to make any finding adverse to

their interests.

MR MURRAY:  And, Your Honour, the circumstances that exist

~very day in every court are that we do not know

until it is over whether there is going to be any

adverse finding and, therefore, we do not know who

is going to win in - if I could put this without

incurring anyone's curial displeasure - its

equivalent, is it not, with the deepest of respect,

of saying, "Well, one party's going to win this

case so the other party needn't address."?

BRENNAN J: No, because there you have got a contest between

the rights and the liabilities of the parties. The

issues are defined and it is clear that a finding

has to be made relevant to those issues and any

finding, therefore, must affect the interests that

are at stake. Here, it is inquisitorial and the

only way in which interests may be affected is by

adversity in the findings that are made. Why then, should there be a right to address in circumstances

where there is no ground for apprehending that

there will be any adverse finding against the

interests which seek that right?

MR MURRAY:	Say for the sake of argument, Your Honour, in the instant case, we learned that the magistrate
intended to make no comment whatever about the
working conditions on the stations. That would be something inimical to the interests which I
represent. At least it should be addressed. Therefore I should have the right to explain to the
Coroner that he should address that matter. And
unless I know that he is going to do that I am
driven like the litigants were in
Mr Justice Mahon's case, Your Honour, to the superior courts. That is the last resort.
BRENNAN J: Well, without knowing all the details of the

lengthy evidence, one is not in a position perhaps

to identify what the legitimate interests are. But

the concern may be that if the right is as you

contend for it, that would give you a right to make

submissions on matters in which you have no

legitimate interest.

MR MURRAY: Well, Your Honour, my first submission is that I

have the right to participate within the terms of

section 24, and that matter is restricted to my

interest in the subject of the inquest or the

result. I am prepared. My submissions,

Your Honour, are not substantially harmed - indeed

perhaps they are not altered at all if I say that

Annetts 27 9/8/90

the right to address must relate to my interest in

examines, leaving aside the facts of the case	the subject or result of the inquest. If then one
before Your Honours, the sections which show the
multiplicity of circumstances in potential of the
Coroner, you then see what a wide-ranging
possibility it is.

My submissions will apply to all coronial

inquests in Western Australia and throughout

Australia irrespective of the type they are,

Your Honour. But my response to what Your Honour

puts to me is that it is impossible, I respectfully

submit, with every respect, to determine what my

interests are in the subject or the result until

the evidence is heard. Only then do we know just

what people have said, and what issues have arisen.

If Your Honour would permit me just for a moment to speak of the case on its facts, these

boys were the subject of evidence concerning their

activities and movements. Let me leave it at that;

and their very circumstances, their departing the

stations and so on. I have said perhaps enough

about that just to illustrate a heading of the

topic.

Now, there are several matters that could

arise. Did they die? They died of thirst. One

was shot. Did he shoot himself, or did his

colleague shoot him? They are the matters - one

died by a gunshot wound through his head, and the

manner and cause of death is one of the findings

that is to be made. But, what about the

circumstances of their work? What about the

search? What about the adequacy of the

infrastructure that exists in the north-west for

such things? They are matters that are concerned

with the subject-matter or result.

If, for example, we be.came concerned - let me

just use it, Your Honour, in answer to

Your Honour's question. It is purely academic.

The adequacy of the police radio net - now, no comment on the police radio net could affect Mr and

Mrs Annetta' personal interests as the mother of

this child except in two ways: one is - this is

academic, illustrative - it may have had an

influence upon the adequacy of the passage of

warning of their missing, or it may have had

influence on the adequacy of the subsequent search

over an enormous area of land.

Secondly, and importantly, they appear there

as citizens who are interested to see that remedial

action takes place. That is one of the fundamental

purposes of the coroner. They are interests which

Annetta 28 9/8/90

they are entitled to pursue under the common law or

under section 24. If the Coroner were to say,

"Mr Murray, I do not intend to criticize the air

search. It was perfectly adequate.", I might,

academically speaking, be constrained to say, "But,

Your Worship, what about the evidence of A, B, C?", and so on.

Your Honour, this may illustrate nothing but

my inadequacy but I would respectfully submit until

the case is over nobody knows what the extent of

the interests of those concerned in the subject or

result of the inquest are and it may be, in a

sense, cyclic, circular, one of the matters that has to take place before the case is over is the address. Turn the coin over, Your Honour, what

harm is done to the jurisdictional circumstances of

the Coroner by the making of an address.

MASON CJ: Mr Murray, could I ask you this question: did

you put to the Coroner that short of the

unqualified right to address for which you were

contending, that your client was entitled to have a right of address by you in relation to the prospect

of any adverse findings that might be made against

the deceased? Did you put that to the Coroner?

MR MURRAY:  In those words, Your Honour, no. I certainly

put to the Coroner that I was entitled to be heard

and we do have the transcript Your Honour but I

have not had time to read it - I only got it this

morning. Whether I said, Your Honour, that I had

the right to be dealing with adverse findings you

might make against my client, Your Honour, I cannot

give the Court any assurance that I said any words

that would have that effect. I may, Your Honour,

have said, "I am entitled to address you on my

interests.", I cannot remember. But the transcript

is here.

MASON CJ: Yes. The reason why I put that to you is that

when you read what the Coroner said at pages 8

and 9 of the reasons that he gave, it does not seem

that the Coroner has in mind the possibility that

he needs to give notice in relation to any

possibility of adverse findings which would entail

an opportunity to address in relation to such

proposed findings. But that may be by reason of

the nature of the submission that you put to him.

MR MURRAY:  I now see the importance, Your Honour - it was

recorded - of me informing the Court as to what the

submission was that I made. Your Honour, I know it

is not terribly helpful but the reasons His Worship

gave for not accepting a submission was it was the

practice of the Coroner and until the superior

courts told him that he had to hear a submission he

Annetta 29 9/8/90

did not intend to do so. That transcript is here.

Your Honour, my learned friend wishes to say

something on this aspect.	He has brought the
transcript over.

MR McKECHNIE:  If Your Honours please, in relation to what

Your Honour the Chief Justice was just quoting from, I discovered yesterday that what we put

forward as supplementary material was the expanded

reasons of His Worship not the actual reasons

delivered and therefore should be ignored by

Your Honours because immediately we discovered that

I went to the transcript so what His Worship has

done is expanded his reasons. The actual short form

of his reasons given I have available.

MASON CJ:. These are reasons more favourable to you, are

they?

MR McKECHNIE:  They are the real reasons, Your Honour. They

are not different but less expansive. They do not

go through ten copies of Jarvis.

TOOHEY J: What did the Full Court have before it,

Mr McKechnie?

MR MCKECHNIE: Nothing.

TOOHEY J: Obviously it had something but - - -

MR McKECHNIE:  It did not have the reasons of His Worship,

either that which was - - -

TOOHEY J: Either in short form or in the longer form?

MR McKECHNIE:  Yes. Your Honours or the transcript of what he did say That which was wrongly supplied to

but in case Your Honours find it of use I do

have - - -

MASON CJ:  We had better have the real - - -

MR McKECHNIE:  - - - what are the real reasons and I

apologize most profusely for the error.

Your Honour, could I just ask my junior to look at

that. I have just been given the last day of the
transcript. Your Honour, in answer to one of the

things that just fell from Your Honour

Mr Justice Toohey, at page 3 of the judgment of

Mr Justice Wallace there is reference to part of the transcript.

MR MURRAY:  Your Honour, on second reading, I think that may

be my memory of what was said rather than an

accurate transcript of what took place in the court

below which we now have.

Annetts 30 9/8/90

MASON CJ:	Yes.
MR MURRAY:	On this matter, Your Honour, at page 1022 of the transcript of the Coroner's proceedings
His Worship - and indeed those reasons start on page 1021 - His Worship addresses - obviously some
research has been done on the history of the
preceding period of time and on page 1022:

The history of the act in this state

appears to have been that there were no

provisions relating to interested parties

being represented before Coroners in this

State prior to the act of 1920 -

my comment on that would be under the Coroners Act

the common law had addressed the question of the

rights of people to appear -

and the terms of that act were almost, in

effect, a representation the same as the

present section 24. I think that it is

necessary to remember that a Coroner doesn't

act in response to parties who come before

him. It's the Coroner who initiates the

inquiry and conducts it. Persons interested

may appear and ask questions of the witnesses,

but they're not parties in the sense of
parties to litigation in criminal and civil
cases, and I continue to hold that view. I

believe I have a discretion and I exercise it,

not to permit addresses.

I am mindful, through the

cro~s-examination of witnesses by counsel for

the interested parties, of the lines that they

took. I shall review the evidence and I shall
give due weight to those matters as I think

fit. I agree that the relatives of each of

the deceased are persons who are interested in
the subject and, indeed, the result of the

inquest, but I don't believe them to be

been referred to in the cases that have been	parties to proceedings in the sense that has
put before me. One would hope that while
there may be representation for those persons
who are interested in the subject, the result
of the inquest, it is the role of the Coroner to remain the advocate of the deceased
himself, and I shall try to do that to the
best of my ability.
I have noted these matters particularly that counsel for the two boys have wished to
put to me.

Your Honour, I did not appear for the two -

Annetts 31 9/8/90

MASON CJ:	To what does that refer, Mr Murray? Does that refer to cross-examination, or does it refer to
submissions that you put in support of a right of address?
MR MURRAY:	The submissions that very morning, Your Honour. Your Honour, I only appeared for one; another
b~rrister appeared for the other:

I feel that I am able to embark on the task of

dealing with those matters without their

further assistance. I have derived, I think,

sufficient assistance from the cross-

examination. The only other matter is that

spoken of by Mr Murray as to the role of the

Coroner per se, as revealed by the events

connected with these deaths. All I can say

is that if it is sought to make those

submissions, then they should be made to the

Attorney-General.	I cannot guarantee when a
finding will be made.

We have, Your Honour, the transcript of what I did

in fact say. I said, Your Honour, at page 1009:

Your Worship, the law requires that you permit

submissions.	The area, as I respectfully
submit, is historic.	The practice has arisen

in Western Australia through a

misunderstanding of one, the effect of

section 7 of the Western Australian Coroner's

Act and two, the way the law has changed in

Austrlaia and the United Kingdom concerning the rules of justice which relate to inquiries.

Authority in the United Kingdom, indeed

in the Privy Council of the House of Lords

know that for example the High Court of

Australia and the Court of Appeal of New South

Wales unite in effect in saying that former

cases which have said that the inquiry

tribunal is not required to administer natural

justice have been overtaken.

The authorities specifically include

indicate that the Coroner is bound to

administer natural justice - - -

MASON CJ:	Well, we do not need a rehearsal of your argument, do we?
MR MURRAY:	No, Your Honour.
MASON CJ:	I would like to know what you did say that

resulted in the Coroner expressing this sentence,

"I have noted those matters particularly that

Annetta 32 9/8/90

counsel for the two boys have wished to put to me".

Now, can you ascertain from what you said on that

occasion anything that throws light on the content

of that sentence?

MR MURRAY: It seems, Your Honour, from my memory,

stimulated by a reading on my feet of the pages of

tbe transcript, that I made no submission of fact

at all, I endeavoured to persuade the magistrate

that he had the legal responsibility to hear

submissions. Your Honour, I am happy to put before

the Court - if my learned friend would - the

relevant pages of the inquest proceedings of

10 November 1988.

MASON CJ: Is that going to help us, really?

MR MURRAY:  Not really, Your Honour, unless we go further.

My junior and I both, at a quick reading, are of

the view that I did not make any submission as to

factual matters that morning but I intended to

address - or that he intended - nor did he mention
any findings that he intended to make. It appeared

to go forward purely on a principle of his view of the law, his legal rights and responsibilities; in

my view to the contrary.

BRENNAN J: What about the other counsel appearing for him?

MR MURRAY:  Your Honour, we have not looked and, again, my

memory, Your Honour - and I will have it checked as

quickly as I can - I do not think my colleague,

Mr Birmingham, did either. He had a slightly

different view about the right to an address to

mine.

TOOHEY J:  Do you mean the opposite view?

MR MURRAY:  No, Your Honour. I am a Western Australian in

one sense too but he was more of the traditional

view. He was more expecting the response than I

was. No, it was not the opposite view,

Your Honour, no. The practice is not universal,

Your Honour, in Australia for the rejection of

submissions although the legislation is quite

interestingly very similar.	New South Wales
addresses are invited.

Your Honour, if I could just go to the various

parts of the Act. Can I ask Your Honours just briefly to look at section 25 which relates to

deaths or accidents in mines; 25(1), the same type

of words are used for:

(1) A representative of the person

killed •.•.. and may examine any witness as to

Annetta 33 9/8/90

the cause of the accident, subject

nevertheless to the order of the coroner.

(2) The inspector shall, when practicable,
and the workmen's inspector may, be

present and may examine witnesses and elicit

evidence relative to the cause of death or to

the circumstances of the suspected death and,

if death is established beyond reasonable

doubt, the cause thereof, and to the issue

whether the accident was attributable to

negligence, or to any omission to comply with

the provisions of the

Mines Regulation Act 1946.

Your Honour, if the submissions that are contrary

to those that I am making are correct, neither the

representative nor the inspector under 25(1) or

25(2) would have the right to make any address and

I respectfully submit that far from being an

obstacle to the proper exercise of that

jurisdiction, the absence of address from those

people, for example, with exactly the same words as

to their representation, would be inimical to the

efficacy of the address.

Similarly, 26(4) about coal mines, 27(3) about

factories, and these sections not only give

jurisdiction, Your Honour, but give rights to

persons to attend and I respectfully submit that if the law is that unless you can spell out or extract the right from the Act that the law will not step

in and will not find the right, then my submissions

fail. However, Your Honour, my submission is, the

right to address is just that.

DEANE J:  Mr Murray, at page 11 of the book - which is at

page 8 of Mr Justice Wallace's judgment -

His Honour finds against you on a somewhat

restricted ground and I am looking at the sentence

immediately after the quote· in the middle of the

page beginning, "I am not prepared". What is your

understanding of what His Honour says there:

it is common ground that there is no

suggestion of any finding adverse to the

applicant's interest to be made.

MR MURRAY: Well, Your Honour, if I would be truthful,

Your Honour, I do not know.

DEANE J:  It depends partly on what is meant by "finding" I

suppose.

MR MURRAY:  Yes, Your Honour.

Annetts 34 9/8/90

McHUGH J: Also, partly on what is meant by applicant's

interests, whether it is - - -

MR MURRAY:  Yes, interests, or what is meant by rider; what

is meant by the other jurisdictional features,

Your Honour. The best I could do would be, I

really believe that His Honour Mr Justice Wallace

did not see my clients at risk in property - - -

MASON CJ:  He did not include, within the ambit of your

client's interest, perhaps, findings adverse to the

deceased.

MR MURRAY:  I think, Your Honour, it went further. I think

both Mr Justice Wallace and Mr Justice Kennedy -

and Mr Justice Kennedy speaks, in his judgment, of

the questions asked of me during the argument.	I
think they were talking about my living clients.

MASON CJ: Yes.

MR MURRAY:  They were challenging me to find a right in rem,

or a right in personam which related to Mr and

Mrs Annetta, and saying that their rights cannot be involved whatever happens, even though it is said

the Coroner decides nothing, whatever view you take

about the jurisdiction of the Coroner, Mr and

Mrs Annetts cannot be harmed in the property or

freedom sense, therefore they have insufficient

interest and therefore my application failed.

TOOHEY J: That does not quite tally, does it, Mr Murray,

with what Justice Kennedy says on page 27

when - - -?

MR MURRAY: Yes, the judgments, if - before I go the section

to which Your Honour has directed me - the

judgments proceed on very different bases.	I am
coming - - -

TOOHEY J: Yes, I appreciate that, but may both comments -

that is the comment of Mr Justice Wallace and the

comment of Mr Justice Kennedy - may both arise from

the same discussion that took place during the

hearing because, on page 27 Mr Justice Kennedy

says:

When counsel for the applicants was

pressed to identify the interest of the

applicants -

and he then goes on to indicate your response, but

that response would seem to suggest that you were

putting to the court more than, I might call the

narrow interest of the applicants - - -

MR MURRAY:  I was, Your Honour.

Annetts 35 9/8/90

TOOHEY J:  You were embracing the circumstances surrounding

the boys' death.

MR MURRAY:  I certainly was, Your Honour. I certainly put,

Your Honour, that their interests extended further

than any question of there being anything said adversely of them or any finding against their

property, and so on, but really what I meant to

say, if I did not make it clear a moment ago,

Your Honour, that both Mr Justice Wallace and

Mr Justice Kennedy seemed dissatisfied with my

submission, in the sense that I was unable to point

to something which.met with Their Honours'

definition of interest, or expectation. And,

Your Honour, nor do I for a moment suggest that

Mr Justice Kennedy has not done justice to my

response to the question in the Court. My case is

not that Mr and Mrs Annetts stand to lose anything,

or really gain anything, in the material sense, by

the outcome of the Coroner's inquest.

I will come, Your Honour, to a brief analysis

of the judgments, if I may, in a moment.	I was
taking Your Honours to 43(1), and this is,

Your Honour, just a fairly, I hope, succinct

overview of the legislation. 43 is headed

"Supplemental", and there are a number of things

there, including the fact that he no longer has to

use parchment, but at 43(l)(e):

A coroner holding an inquest upon the body of

any infant who has died whilst in the care or
charge of a person registered in respect of a

nursing home under the provisions of the State

Children Act 1907-1919, shall report to the

Attorney-General the cause of death, and shall

in such report make such remarks with respect

to the matter so to him see fit.

Now, in those circumstances, Your Honour,

again an illustration for argumentative purposes,

if the child had died in a registered nursing home,

and that is the subject of the inquest, if the

submissions contrary to mine are correct, there

would be no right of an address in order to assist

the Coroner in the report that he might make to the

Attorney-General and I respectfully submit that

that jurisdiction, Your Honour, in the words that

Your Honours Mr Justice Brennan used in the

passages which I read a moment or two ago, it is

not harmed, it is enhanced.

I am mindful of Your Honour the

Chief Justice's comment to me and I have referred

to section 43(l)(j), Your Honours, where the

Coroner cannot make a finding that anybody is

Annetta 36 9/8/90

guilty of crime. Perhaps 43, whilst I have got it

open, 4 3 ( 1 ) ( i ) :

The coroner shall not express any opinion on
any matter outside the scope of the inquest
except in a rider which, in the opinion of the
coroner is designed to and may, if given
effect to, prevent the recurrence of similar

occurrences.

And I have already, Your Honour, made my point

that that relates back to section 24 and what is

the subject or result of the inquest.	It must
include a rider:

A rider is not part of the decision or finding of the coroner but it may be recorded if the coroner thinks fit.

Now, there again, Your Honours, matters in respect

of which a person properly before the coroner

should have the right to make a submission.

But (j), the one to which I was going to:

A coroner shall not frame his decision or

finding in such a way as to appear to

determine any question of civil liability or

as to suggest that any person is found guilty

of an indictable or simple offence as defined

in section four of the Justices Act.

So he cannot determine civil liabilities or say

anyone is found guilty or has committed a criminal

offence and I drew Your Honour, in passing, the

comparison between the recent considerations by this Court in the mater of ICAC v Balog on that

type of legislation.

So therefore no submission, Your Honour, no

submission made by someone permitted to attend,

under section 24, could say that and that would be,

pe - perhaps further Your Honour

Mr Justice McHugh's submission to me would be a

limitation upon what one is permitted to make even

under a legally as of right available right to make

a submission.

Well, Your Honour, I talked earlier about

hearing the South Australian case of Ewens v Burke.

The decision of Mr Justice Walters supports the

proposition that I made there as does

Mr Justice McHugh's judgment in Lisafa Holdings

and, Your Honour, there is a brief mention in a New

South Wales Court of Appeal case called Dustings,

which is on our list of authorities. I do not wish

to take Your Honours to it. Mr Justice of Appeal

Walsh, at page 104 point 3, with whom Mr Justice

Annetta 37 9/8/90

Jacobs agrees - his agreement is recorded at page

106 - refers to the - once the right of natural

also to Lieschke at page 459 point 1, Mr Justice	justice, including a right to be heard, and I refer
Brennan and I have already given page 820 point 9,
Mahon v Air New Zealand.

Mr Justice Deane makes a comment at Kioa which

I will briefly refer to at page 633 point 5, of

that Your Honours. Page 633.5, Your Honour, of

Kioa, 159 CLR, 550, and the part to which I wish to

draw attention says:

Clearly enough, the mere circumstance that

there is no apparent likelihood that the

person directly affected could successfully

oppose the making of a deportation order

neither excludes nor renders otiose the
obligation of the administrative decision-

maker to observe the requirements of

procedural fairness. Indeed, the requirements

of procedural fairness may be of added

importance in such a case in that they ensure

an opportunity of raising for consideration

matters which are not already obvious.

On two basis, Your Honour, the usefulness of the submission and also the fact that it, in a way,

throws some light on what is an interest. We

cannot influence perhaps the findings into the

manner and cause of death and so on but all of the

other ancillary jurisdictional areas we can and
should have the right to make some reasonable

contribution.

Your Honour, the Coroner is a judge and his court is a court of record. Now, Halsbury in the

first edition, Your Honours, and unless

Your Honours wish me to I do not propose to do more

than mention these paragraphs which are listed on

the list of authorities. The first edition, at

paragraph 586 of the chapter on coroners and the

second edition, at paragraph 1024. So, the rights

of those admitted to attend, I therefore argue, are

rights associated with a court so all of the common

law rights and protections to a person with an

interest or an expectation before administrative
tribunals are, in my respectful submission, added

to in these circumstances both by the common law

and by the sections of the Act.	We say, therefore,
that the rights are greater.

Your Honour, the Act was proclaimed I think in 1919. It comes into effect in 1920 and volume I of

Halsbury which was published in 1909, in the

section on coroners at page 209, again the

reference to which I have made reference about it

Annetts 38 9/8/90

being a court of record of which the Coroner is the

Your Honour, which is also on our list which	judge. It refers to an old case in 1827,
relates back to powers of the Coroner which support
the submissions that I am making. Attendance of counsel is referred to by Halsbury, paragraph 587
at page 258 of volume VIII of the first edition:

It is the practice for coroners to allow counsel or solicitors representing parties who

may be interested in the inquest to be present

and to question witnesses either by way of

examination or cross-examination, but it

appears to be within the discretion of the

coroner to refuse such permission.

And the Garnett v Ferrand case in 1827 is quoted as

authority for that. It goes on in the first

edition:

It is not the practice of coroners to allow

counsel to make a speech to the jury.

And we have given, Your Honour, the list of the

second and third editions of-Halsbury and various

parts of Jervis on Coroners which support that

assessment which we say indicates that there was a

practice to permit counsel to attend and in some

circumstances there is comment reflecting a

discretionary opportunity to address noting, Your

Honour, that the New Zealand case is referred to

opposite 7(a) of the Coroners Act - and I will just

touch this very briefly, Your Honour - we

respectfully submit that the New Zealand Coroners reference has been made by the Western Australian legislature, as appears to be no equivalent to

section 4 of the Western Australian Act is in the

New Zealand Act and we say that is significant as evidence that the New Zealand legislation intended

to extend the rights of appearance.

If I could just, Your Honour, read on to the

record the comparisons with other legislation. In

and to examine and cross-examine, section 31; the

the Northern Territory Act it is the right to

appear personally or by counsel, section 32; the

South Australian, section 21; the Tasmanian Act is

section 20, the ACT Act is section 27; the New

South Wales Act is section 32 and in Victoria the

Act at section 45. All appear to be substantially

to the same effect.

Your Honour, the final matter that I intend to

address is the comments I wish to make as far as

the judgments are concerned. Mr Justice Wallace,

Annetta 39 9/8/90

at 7 point 17 relies upon section 7(a) and the

invocation of the English proceedings. We have

made our point that that does not apply to

procedural matters or procedural fairness. Mr

Justice Wallace appears to be influenced by a view

that he must apply strict compliance with section

24, which we say is incorrect, to the extent that correctly interpreted section 24 does not exclude

the common law, and so on. It gives a greater

right than the common law. The rules of natural

justice which do not always extend to, for example,

the right to cross-examine. And O'Rourke v Miller

which is on our list, Your Honours, is authority

for that proposition. And we say that the approach

taken by Mr Justice Wallace to the interpretation

of The Coroners Act, section 24, as being to be

read to limit his inquiry by strict compliance with

section 24 is an incorrect approach.

The Oxford dictionary supports the submission

we make about the meanings of the words

"authority", "jurisdiction" and "power" compared

with "procedure" and "procedural fairness".

Mr Justice Kennedy - we submit that the approach

that because the coroner only inquires and finds

facts and does not apportion guilt and so that his

proceedings require different procedure and rules
of evidence, that is, different rules of natural
justice to adversary litigation, we say, does not

take sufficient account of the rights under

section 24 or the extensive authority of the WA

Coroner re children, riders et cetera. Mr Justice

Kennedy's approach that the right sort must be

shown to.be required by interest, legitimate

expectation, so as to require an extension of

section 24, we respectfully submit, fails to take

account of (a) the rights already conferred by

section 24~ and (b) the common law function in

these circumstances.

The finding that the parents of deceased boys

have no relevant interest, privilege or legitimate

expectation takes insufficient count of the basis

for being admitted under section 24(1) which, as

Your Honours have heard me, perhaps repetitiously,

speaks for itself. They are my submissions,

Your Honour.

MASON CJ: Yes, thank you.

DEANE J:  Mr Murray, you said that one of the boys had been

shot, and there was a question whether he had taken

his own life or been shot by the other boy. That

was the extent of the shooting incident, was it?

MR MURRAY:  Certainly, Your Honour. The skeleton was found

with the bullet wound as I have described, and the

Annetts 40 9/8/90

evidence probably enables no decision to be made.

There are a few notes left. It was exhaustively

gone into, Your Honour.

DEANE J:  I see. Which boy was shot?

MR MURRAY:  Young Amos was shot, Your Honour. The

possibility is real that my client's son would have

put him out of his misery.

DEANE J: The other thing is, reading this document which

was before us, but we are told is a revised
version, it seems that the Coroner's approach was a
general one, that he would hear no addresses at all

except from somebody who was in jeopardy of being

committed for trial when he would hear submissions

on their behalf. Does that accord with your

understanding of the Coroner's approach?

MR MURRAY:  Your Honour, I have no recollection of him

directing, in my presence, our attention to his

having anything in his mind about anybody being
recommended for committal for trial.

DEANE J:	But the point of it would be that if that is so, what he is saying is that your clients would have no right to make any submissions on his approach
unless he intended to commit one or other of them
for trial on some offence?
MR MURRAY:	Nothing like that was said in my presence,

Your Honour. Nothing making the slightest

suggestion of that being a possibility.

McHUGH J:  Mr Justice Deane is putting to you that that is

the approach of the Coroner. I would have thought

you would be grabbing it with open hands because it

tends to indicate that the Coroner misconceived the

nature of his jurisdiction and he thought the right
to address was one of discretion and not of right

except in the exceptional case where somebody might

be committed for trial. Now, if that is what he

did see of his jurisdiction, arguably he is in

error.

MR MURRAY:  Your Honour, I am not quick enough to dissemble.

I have always got to tell the truth in such

circumstances. I do not remember anything like

that being said. Of course it is wrong. Of course

it is the incorrect approach.

DEANE J:  It may be a large question whether it is or not

but that seems to be the effect of what is said on

page 1 of the revised reasons.

MR MURRAY:  Your Honour, I do not even have that now. I

only have the transcript of what he actually did

Annetta 41 9/8/90

say which is at 1021 and 1022 and nothing like that appears at all. I did not hear anything like that.

I heard that it was "a tradition in WA to have no

addressed and I'm not going to hear any addresses

and that's it." Indeed, the way it was put by one

of my opponents, if there are any opponents in the

Coroner's Court, was, "Section 40 of the English

Rules is the beginning, the middle and the end and

that's all there is."

DEANE J:  You have answered my question, Mr Murray.

MASON CJ: Yes, Mr McKechnie.

MR McKECHNIE: If Your Honours please, could I take

Your Honours, arising it seems to us, substantially

the question of adverse interest, to the reasons.

Your Honours already had been referred to page 11 and the comment of His Honour Justice Wallace at

line 25, about the question of:

common ground, but there is no suggestion that

any finding adverse to the applicants'

interests to be made -

His Honour does not spell it out, in our submission, Justice Kennedy does at page 26 because	and what quite the interests were. Although page 26, having dealt in his judgment as to whether
there is a right to address spelt out of the Act
and concluding that there was not within section 24
for historical reasons, His Honour then went on to
say, "It may not be in the Act but do the rules of
natural justice require it either generally or in
this case?" and His Honour had no question - at the
top of page 26 - that:

It may readily be accepted that, in some

circumstances, natural justice will require

that counsel representing individuals before a

tribunal should be permitted not only to

cross-examine witnesses but also to address

the tribunal -

So that the Full Court is not denying that the

circumstances may arise where that right should be

extended to parties. His Honour then goes on

significantly to quote that portion of Lord Diplock

in Hahon's case which speaks of the wide interest

including in that term career or reputation and it

is important that His Honour having reminded

himself of the wide nature of interests then goes

to ask, as he says:

The critical question is whether, in the present case, the rules of natural justice

Annetts 42 9/8/90

require an extension of the rights expressly

conferred upon the applicants bys 24 of the
Act.

And it is then that His Honour approaches the question of what is the interest and His Honour

goes on:

the applicants had a very real concern in the

subject matter and result-of the present

inquest but there is nothing in the evidence
before this court to suggest that anything
adverse to them could conceivably emerge from
the inquest.

Their Honours did not even have the benefit of the reasons of His Worship, either in revised or

original form. Their Honours were, of course,

considering the writ of prohibition. I would not

dissent from the proposition that if there was to

be an adverse finding against the interests which

would include the reputation of a deceased that the

Coroner would be obliged to make known that

possibility before making his finding and to give

the party against whom he was considering such a

finding the opportunity to address.

DEANE J: That seems to be contrary to Their Honours'

approach though, is it not?

MR McKECHNIE:  I do not believe so, Your Honour. What

Their Honours were saying and what His Honour was

saying was that at this stage and on the evidence

there is nothing of that nature emerging.

DEANE J: But it could not be said, there is nothing in the

evidence before this Court to suggest that anything

adverse to them could conceivably emerge from the

inquest if by that His Honour was meaning anything

adverse to them or to their children because it is

obvious, I would have thought, to anybody with the

limited knowledge of this case that we have where

one boy has either killed himself or shot his

companion, where there is a suggestion that the

boys stole a motor vehicle, that there must be a

possibility.

MR McKECHNIE: That, as I understand it from my learned

friend who was counsel at the hearing of the writ,

was not before Their Honours.

MASON CJ: Was not?

MR McKECHNIE:	Was not before Their Honours; that fact. writ of prohibition was really confined, and Their	The
Honours have quoted that part of it. Certainly
Annetts	43	9/8/90

what was.not before Their Honours was the 1100-odd

pages of transcript or the various evidence.

BRENNAN J:  On what was the motion based? Was their an

affidavit?

MR McKECHNIE: There would have been an affidavit,

Your Honour, which we have but it has not been

included in the appeal book. The grounds for the

application appear at pages 1 and 2 and really
simply relate to the question of law that my friend

has argued today, particularly at page 2.

TOOHEY J: It seems to have been argued, Mr McKechnie, on

the basis that counsel for each of the boys - at

least for the boy in question - had an unqualified

right to address and I suppose, put that way, then

it is understandable that the judgments were

structured in the way that they were.

MR McKECHNIE:	Yes, you see, Your Honour, although it is now a ground of appeal to this Court in 2(f) there was
no ground for the writ that there was a
mis-exercise of discretion or that His Worship had
a discretion which he had wrongly exercised in
excluding.

BRENNAN J: But the question for us is whether the Full

Court was in error in the judgment which it

formed - - -

MR MCKECHNIE:  Yes.

BRENNAN J: - - - and that is a judgment which had to be

formed, I should have thought, on the affidavit.

MR McKECHNIE: That was the evidence before.

BRENNAN J: Yes.

TOOHEY J: Although, curiously, the order nisi speaks of a

notice of motion upon hearing counsel.	It does not
seem to follow the usual form of saying, "Upon

reading the affidavit of X, sworn such and such a

day" ..

MR McKECHNIE: Well, that form is no longer a form within

the Supreme Court Rules in Western Australia.

TOOHEY J: But does that imply that the supporting affidavit

is no longer necessary, Mr McKechnie, or that the

affidavit is required but it is not referred to in

the order?

MR McKECHNIE:	The affidavit is required but not referred to in the order. The affidavit which I have just been
handed does, in fact - the affidavit rather than

Annetta 44 9/8/90

the motion - does speak of a wrongful exercise of

discretion but put no facts other than those which

are recorded in the judgment, that is that the	hearing went on for a long time and had some
1100 pages.

MASON CJ·:  Can you arrange to provide us with copies of the

. affidavit?

MR McKECHNIE:  I will do so, forthwith.

DEANE J: Is there a transcript of the argument before the

Western Australian Full Court of the Supreme Court?

MR McKECHNIE: There no doubt is, Your Honour, and I could

provide that as well but I have not seen it.

DEANE J: Because, reading the judgments - even though this

is not said - I had got the impression that what

was primarily desired was to make an address

attacking somebody.	Now the case seems to have
turned towards making an address defending.	When I

say "primarily", the matters the Bench have raised

are concerned with making an address to defend

oneself before adverse findings are made against
interests in which one has a legitimate interest to
protect. Well now, if it is the latter I have
difficulty in understanding the judgments in the

supreme court. If it is the former, of course, the

context would be quite different .

MR MCKECHNIE:  I thought my friend this morning, in his

commencement, had left little doubt as to the

intended purpose for the address but the Crown is

concerned to approach the matter on this basis;

obviously it has an interest in the procedure

before the Coroner's Court and we would contend

that section 24 is limited in its terms to its

express terms that no right of address per se is

imported by its terms. It is only necessary to go

to the historical position and the English

position, as it were, as an aid to the

interpretation of the section, and for no other

purpose than that, but that clearly the coroner

must afford procedural fairness to persons and it

would be a legitimate expectation, as was

recognized here, in a family that they have some

rights - and that was recognized plainly. They

were given leave to attend to examine and cross-

examine evidence put before the Coroner.

DEANE J: But even assuming, just for the sake of the

question, that all you say is correct, none the

less, if one looks at page 1 of that document which

we apparently should not have, it is apparent to

me, unless I have been misreading it, that the

Coroner is saying he will not hear addresses on

Annetta 45 9/8/90

behalf of Mr Murray's clients regardless of whether

what he is going to say will damage the reputation

of their child. Now that, as you can see, would be

very difficult to justify.

MR McKECHNIE:  I would not attempt to justify it,

Your Honour, and it was not the reasons he gave - they are expanded reasons - but more

particularly for this Court, it is not, in my

respectful submission, the decision of the

Full Court either because the Full Court recognize

that if a person has an interest which is likely to

be affected adversely, there is a right to address.

The question may be - - -

DEANE J:  I follow what you say about that but I read

Justice Wallace and Justice Kennedy as referring to the interests of the applicants in a way that does

not include the reputation of their children.	Now,
I may be wrong about that.

MR McKECHNIE:  The reason why I would respectfully take

issue with Your Honour - and it was my fault

because I took myself off page 26 and I had only

half-way finished that - is that His Honour

Justice Kennedy, after reminding himself of that

passage in Mahon, which includes career or

reputation, then poses the critical question

whether, in this case, the rights require an

extension, then goes on and finds that:

there is nothing ..... to suggest that anything adverse to them could conceivably emerge from

the inquest -

on the evidence before them, and it was, I think,

at that point that the question was raised, "What

was the evidence before them?" and then he carries

over the page to a quotation which may or may not

be terribly helpful but then he continues at

line 20:

When counsel for the applicants was

pressed to identify the interest of the

applicants -

and then there follows the list. Now, that was the

interests of the applicants that were being

advanced that may, as it were, be adversely

affected. What His Honour concluded from those

interests was that, of course, they were interests

which required procedural fairness; there was no

real question about that. The question is the

extent and that is all this case is about, the

extent of fairness required to satisfy that

interest which as His Honour held, in our

Annetta 46 9/8/90

respectful submission, correctly was satisfied in

that:

all the available evidence has been put before

the coroner and thoroughly tested.

MASON CJ:	Mr McKechnie, could I interrupt you to ask you it you would provide us in due course with a copy
of the transcript of argument in the Full Court.
MR McKECHNIE:	Yes, Your Honour.
MASON CJ:	Apparently the argument was transcribed because

there is a quotation from a passage in the

transcript on page 6 of the application book.

MR McKECHNIE:  We do not have it, but we can obtain it, and

I will undertake to obtain it and forward it to

Your Honours.

MASON CJ: Yes, if you would.

MR McKECHNIE:  What His Honour goes on to say at page 28

is:

I should reiterate, however, that this is in

no respect to deny the grave concern which the

appl :_cants must feel for learning as much as

they possibly can concerning the circumstances

of their son's death; but they, or their

counsel, have now heard all the available

evidence and the result of the inquest will

add nothing to the knowledge which they now

have.

That really leads one to the central and short

question as to the nature of an inquest when considering the rules of natural justice and
considering particularly whether sufficient

procedural fairness has been extended to the

applicants in having them involved in the hearing

to the extent of examining and cross-examining

witnesses.

My friend has said that the Court is a court

of record, and of course it is, although, probably

for historical reasons because it once kept the

records and once was involved in tax collecting and

treasure trove, but that does not really answer the

question. The Coroner's functions under the Act

are, of course, inquisitorial, but also they are

limited.

My friend has referred to the passage and for

time I shall not repeat them. His jurisdiction to

inquire into a death arises under section 6.

Section 11 gives certain powers which are expanded.

Annetta 47 9/8/90

It is an expanded jurisdiction within section 11(5)

where there is an infant to inquire into matters of

public justice, but section 11(3) really delineates the very narrow finding that he needs to make which

is to prove who the deceased was and how, when and

where the deceased came by his death.

Now, that really is the very narrow finding,

as- I am sure Your Honours are all familiar.

Section 42, to which my friend has referred, gives

the Coroner power to add a rider which he may or may

not add, but the rider, by definition, is not part of the finding of the Coroner, which is not to say

that a rider may not in some circumstances adversely

affect the interests of people, of course, it may,

but it is not to decide criminal liability, nor

civil liability. Its primary function is to inquire

into the death and to then send off to the

Attorney-General under section 42 the finding and the depositions to be enrolled and recorded.

DEANE J:  How is "rider" construed? I mean, one normally

thinks of a rider·as being an additional single

qualifying sentence or something. Is it construed

that way or is it construed, for example,

encompassing 50 pages of -

MR McKECHNIE:	It is the judgment.
DEANE J:	I see.
MR McKECHNIE:	In earlier times in the way of arbitration,

Your Honours, one had the award and separate to that the reasons, and a rider may well be many

hundreds of pages setting out in great detail,

which is why I say that it may be capable in the

broad sense of affecting the rights of people who

are mentioned within it, but it cannot affect their

legal rights; but it comes back to the question of

the interest of the appellants and how that might

be satisfied.

The interests of the appellants, in our

respectful submission, are satisfied by being

present and participating in the inquest. The

rider is not a judgment. It is the Coroner's

opinion primarily for use by government, or

whatever, to remedy positions, and that is clearly

the case in the passages of section 26 to which my

friend referred, and other passages where the

Coroner may refer on depositions to professional

bodies if he thinks that they have an interest in

it.

But the primary purpose of the inquest is the gathering together, the inquiry, and it is that to

which the appellants have already been accorded

Annetts 48 9/8/90

procedural fairness. What they now seek, in our

submission, is two things: one is to make

submissions adverse to some other party and

secondly, to prevent findings adverse to their own

interests to be made and on the material before

Their Honours, in our respectful submission, there

was no error and Their Honours were correct in

holding that in the circumstances of this case the

Coroner, whose jurisdiction after all commences on

the discovery of the death - in this case the

inquest, I think, commenced on 10 December 1987, so

Your Honours can see we are a very long way away

from the matter. The argument before His Worship

was in November 1988. His jurisdiction may
commence, he may view the bodies, view the scenes,

well before any, as it were, party is present or

making submissions.

He then holds a formal inquest which is

primarily for his benefit in the sense of gathering

the information, but other people may participate

in order to put on public record the information

and that is why section 24 allows the appellants to

take part in that; but when that is all done and

that is all over it is a matter of his discretion,

somebody an opportunity to comment, but secondly it

firstly, if he is likely to make an adverse finding

is then a matter of his discretion whether or not

he would be assisted by the address of counsel.

TOOHEY J: Are you putting those as alternatives?

MR McKECHNIE:  No, Your Honour. They are two stages. He

may say, for instance. "This is a very complex

case". Although - - -

TOOHEY J: Are they two stages? That is what I am having a

little difficulty with. If it is apparent that the

interest of a person named during the inquest and
represented may be adversely affected by the

finding or, for that matter, by the rider, I took

it that you conceded a right deriving from the

right to procedural fairness to address the Coroner

in those circumstances. No element of discretion

is involved there. What is the discretion? Is it

simply a discretion of the Coroner if he thinks he

will be assisted?

MR MCKECHNIE: Yes, it is simply a procedural discretion.

TOOHEY J:  To invite counsel who has appeared before him at

the inquest to address him on particular matters?

MR MCKECHNIE:  Yes, it is simply that.

TOOHEY J: Where does the discretion derive from?

Annetta 49 9/8/90

MR McKECHNIE:  The discretion derives not, of course, from

the express words of the statute. In a sense it

derives from the rules of procedural fairness

although we have really categorized that as more an

entitlement and just in the right to regulate his

own procedure.

TOOHEY J: Yes, I understand.

McHUGH J: Mr McKechnie, the matter that is troubling me - I

am not sure that Mr Murray put his case this way

though - is this: reading the Magistrate's

original judgment and more than confirmed by the

supplementary papers, it is arguable that he

misconceived the nature of his jurisdiction and he

thought that the right to address was one of

discretion and not a right in certain

circumstances. When Mr Justice Deane was asking

Mr Murray about that he said that was never said

and one can understand that but the fact is that it

seems to be the Coroner's - the way he has

expressed himself. What do you say about that?

MR McKECHNIE:	I will give the easy answer first, if I may, Your Honour, and that is this is an appeal from the
decision of the Full Court; that was not before the
Full Court. His reasons were not before the Full
Court. They did not form part of the record.
McHUGH J:	The Full Court quoted part of his reasons.
MR McKECHNIE:	The Full Court, I think, quoted my friend

quoting part of his reasons.

McHUGH J: Yes, but they had been handed up, yes.

MR McKECHNIE:  I do not believe so, no. I believe - - -

TOOHEY J: It is a paraphrase, is it not?

MR McKECHNIE: Yes, I think my friend had a note.

TOOHEY J: Mr Murray gave -
MR McKECHNIE:	The quotation at page 6 is, I think, a

quotation from my friend and, in fact, that is the

way it appears within page 6. It also is

reflected - we have managed to have the affidavit

photocopies in the time, Your Honours, if I could

hand that up. I think it is reflected in

paragraph 6 of the affidavit.

MASON CJ: Thank you.

MR McKECHNIE: 

It is easy to say that His Worship may have

misconceived his role but that would have to be
seen against the submissions that His Honour was

Annetta 50 9/8/90

dealing with, one of which submission, as

Your Honours can see, was put that he was bound

entirely by the practice in England and if their

rules changed so did his and he was having to deal

with that sort of submission together with the

rather more elegant submission of my friend.

But, whether or not His Worship misconceived

the position, in our respectful submission, the

Full Court certainly did not and certainly the Full

Court did not in their judgment go so far. The

Full Court's decision, in the end, Your Honours, is

limited. It is a very limited one. It is limited

to the circumstances of this case - as they say -
time and again. "In the circumstances of this

case," to paraphrase, "procedural fairness was

afforded the appellants by not carrying on to allow

them an address", not laying down rules generally

for Coroner's courts and in that passage which I

quoted to Your Honours from Justice Kennedy at

page 26 they are obviously saying there will be

cases where the law requires a right of final
address. All, in the end, Their Honours are saying
is that, "On the material before us this is not one

of them."

It might be possible, going through all of the

transcript before His Worship, to come to the view

that the rights of some party, or the appellants, will be adversely affected and, in our respectful

submission, that point has not been reached. The

Coroner certainly has not expressed that view. I

would concede that if he were to come to that view

then he would have to if, in answer to Your Honour,

he were·to come to the view that the appellant's

son shot the other boy and that was a matter which

was adverse, or may well be a matter adverse, again

it depends on the circumstances, then he would have

to afford them the opportunity to comment on that

question, but that question, or any other question

where he was finding. Not certainly, as was

asserted this morning, a general right to comment

on the evidence to submit that somebody else should

be committed for trial for manslaughter. That is

why the identification of the interest which the

court attempted from my friend and it appears on

page 27, is so important. That right - - -

McHUGH J:	May not the terms of section 24 point to the nature of an interest to a party? If the
legislature has given a party the right to
cross-examine to suggest that somebody is guilty of an offence, why does that not define the nature of
their general interest in the proceedings?

MR McKECHNIE: Well, our respectful submission, Your Honour,

there are two stages: it is not a general right to

Annetts 51 9/8/90

appear and I do not take any point that, for

instance, in the New South Wales Act that says

"appear" here it says "attend". I do not make any

point to that but I would, with respect, adopt, to

answer the analysis by Justice Kennedy, that is

that the words appearing in the statute vary, there

is an inconsistency of approach to elicit evidence

at one point to examine and cross-examine, but no

where an overall right unconditionally to appear

and that is the reason, and the only reason, why it

is of significance to know the historic background

of the English rules because the English practice

is imported, but that was not such a right. In

other words, that the legislation did not intend

such a right at the time it was passing and that is

why we say in order to find a right of appearance

you must go to the common law and the rules of

procedural fairness.

BRENNAN J:	Mr McKechnie, do you appear for the Coroner?
MR McKECHNIE:	No, Your Honour, just about everything seems

to have gone wrong. Your Honours were not to be

supplied with the supplementary material and

Your Honours were, I thought, to be supplied with a letter from the Coroner which I thought was sent to

the Court.

MASON CJ:	Was that a submitting appearances?
MR McKECHNIE:	Yes, simply submitting to the jurisdiction of

the Court, of course. No, I appear for the

Attorney-General who has an overall supervisory

role in relation to the Coroners Act and,

generally, to advance the interests of justice as

the Attorney sees fit which is one reason why I do

not necessarily submit that His Worship, if that

was his view, was right. If Your Honours please,

unless there are any other matters, those would be

our submissions.

DEANE J:  Mr McKechnie, what if when we get the transcript

one were to reach the conclusion that the

application was put forward on the basis that the

Coroner had said he had a complete discretion about whether he would hear submissions, and in this case he was not going to hear any regardless and if one

also formed the view that when Their Honours were

referring to the interests of the applicants they

were not covering the reputations of the boys and,

on that basis, had dismissed the application in

that even if they thought the Coroner had

misdirected himself, no sufficient interests of the

applicants in the narrow sense they were seeing it,

had been identified. What would you suggest we

should do, apart possibly from revoking special

leave to appeal?

Annetts 52 9/8/90

MR McKECHNIE: Firstly, Your Honour, I draw comfort from the

decision rather than the argument, and I do not

mean that facetiously, but - - -

DEANE J: But that turns very much on what Their Honours

meant about "the interests of the applicants".

MR McKECHNIE: Well yes, although ·I would argue strongly

that Their Honours have identified what the

applicants meant and what they meant in that

passage I have quoted from Justice Kennedy. As to

the first aspect, Your Honour, again the decision

of Their Honours is not, as we read it, one that

says, well, the Coroner found he had a discretion

and he was right. He may, in fact, not be right in

that. If he finds that he has a complete

discretion he is not right.

DEANE J: Except, you see paragraph 5 of the affidavit on

which the Full Court was acting says that the

opportunity of making submissions was rejected on

the basis that -

it is not the present practise or past history

of coroners in this State to hear

submissions -

full stop, which accords rather well with

Mr Murray's strong words just before he sat down.

MR McKECHNIE:  And at page 6, Your Honour, in

Justice Wallace's judgment in the further indented

quotation which is a quotation from Mr Murray, puts

the same point, I think, or the conclusion.

His Honour goes on:

Their complaint now is that their Senior

Counsel has been deprived of the opportunity

of addressing the Coroner and to that extent

they have not been heard. They contend that

the Coroner is bound to extend to them

procedural fairness in permitting such an

address to occur, and that such procedural

fairness arises out of their entitlement to
natural justice.

So His Honour really, with respect, has come right to the point and reached a conclusion on that.

TOOHEY J: Part of the difficulty seems to be that the

matter was presented to the Full Court on a full

bodied basis, that there was a right, as it were
almost an unrestricted right and perhaps even

"almost" is an unnecessary qualification, and that

is reflected to some extent in the relief that is

sought from this Court; because what is sought is

an order absolute prohibiting the Coroner from

Annetts 53 9/8/90

delivering his findings and requiring him to hear

submissions from the appellant's counsel before

determining his findings, not to hear submissions

relating to the applicant's interests.

MR McKECHNIE: Well, as I understood my learned friend's

first and primary submission to Your Honours, it is

i~st that, that the right arises out of section 24,

and it is an absolute right; it is a right to

address completely, not simply a right limited to

any adverse finding that the threshold question

having been answered, that is that they were

accorded an interest to me there, the right to

address flows from that. That is I understand my

friend's submission; he will no doubt correct me,

and that is the submission with which, with respect

to him, we take issue.	We do not get it out of
section 24.	We see it as a limited right; limited

to the circumstances of which Mahon is as good an

example as any.

DEANE J: Can I delay you for just a final question? The

material before the Full Court does not include any

specific mention of the fact that the two deaths

occurred and involved the death by shooting of one

boy in circumstances which seem to indicate

killing, or suicide, by one or the other.	Now,
what if one were of the view that in those

particular circumstances the whole inquest

procedure must obviously involve the reputations of

the two boys and that in that context there must be

a very wide right of the parents to make

submissions to protect the reputations of their

children from the danger of adverse finding? Now,

is it significant that that material was not in

evidence before the Full Court?

MR McKECHNIE:  I would have thought it would be fatal, with

respect, Your Honour.

DEANE J: Except one cannot help feeling that - I must

confess I did not know about it but one cannot help

feeling that in the state where the inquest was

being conducted, and so on, it would almost have

been common knowledge, common discourse.

MR McKECHNIE:  There is no question that there was publicity

about the matter, but the matter before

Their Honours was encompassed within the

prohibition and the affidavit. Their Honours did

not looked beyond that. The material has been

asserted - I do not say wrongly asserted by my

friend - but there was no evidence before

Their Honours, and really to take that into account

now is saying to Your Honours, "Well, although this

evidence was not put before Their Honours, so

Their Honours' decision may have been right as it

Annetta 54 9/8/90

goes, now with this evidence it would turn out that

they would have reached a different conclusion."

DEANE J: Well then, just to safeguard possibilities, what

would you say if when we look at the transcript it

is apparent that those essential facts were treated

as in everybody's knowledge?

MR McKECHNIE:  To adapt to the present argument, if that

were the case, I would like, at least, to be

accorded the opportunity of written submissions

thereon, in other words, to be heard.

DEANE J: Well, that is a fair answer.

MASON CJ:  Mr McKechnie, do you want to say at this stage

anything about costs? Quite obviously, the last

few questions put to you indicate that there may be

difficulties about cost, depending on what order

the Court makes having regard to what emerges. It

may be too difficult for you to make any submission

about costs at this stage.

MR MCKECHNIE:  It is difficult at this stage without knowing

but, Your Honour, we do not come here as a party;

we really come here representing the Attorney in

the wider risk views. I would not seek costs and

would argue in due course against an order for

costs against the Attorney, but I do not seek

costs, if Your Honours please.

MASON CJ: Yes. Yes, Mr Murray?

MR MURRAY:  May it please Your Honours, I have now an

opportunity to have refreshed my memory from the

transcript which I have just, in the last few hours

and the first time I have ever read it since

10 November 1988, and I do not know whether

Your Honours propose to permit any reference to it

but I think I should say this: if Your Honours do

propose to refer to it, that sometimes, as a

you see Mr Birmingham, you should see Mr Murray,	logistic matter, from pages 10, 12 onward, where
because there is a mistake there. I continued my
submissions; my colleague had been heard.

TOOHEY J: But are you speaking now, Mr Murray, of the

transcript of the hearing before the Coroner?

MR MURRAY:  Yes, Your Honour. There was no transcript as I

recall it and I am subject - on all of this matter

concerning the Court of Appeal and the application

for an order nisi that we had no transcript because

it was done a day or two after the proceedings
finished before His Worship Mr Mccann. So,

Your Honour, I am speaking for the moment what I

now have to be the transcript of the proceedings

Annetta 55 9/8/90

before the Coroner. It relates to a question which

was asked by, I think, two members of the Bench

concerning something that the Coroner may or may

not have said and it relates also to what you do

have before you which are the two versions of the

Coroner's reasons.

BRENNAN.J:  The hearing was on 10 February 1989, the order

nisi in November 1988, is that right?

MR MURRAY:  Yes, Your Honour. I am sorry, Your Honour, I

did not hear the whole of Your Honour's question?

BRENNAN J:  The order nisi was on 11 November 1988 and the hearing before the Full Court was 10 February 1989?

MR MURRAY:  Your Honour has the advantage of me. The

hearing before the Coroner was on 10 November - if

Your Honours correct - - -

BRENNAN J:  No, the order nisi was on 11 November and the

heading on one of the judgments says that the

hearing before the Full Court was 10 February of

the following year.

MR MURRAY: That must be right, Your Honour. There was a

first instance judge which happened to be

Mr Justice Kennedy which we went immediately and he

referred the matter to the Full Court.

DEANE J: And it would seem that the evidence was not

supplemented in between. Or when I say, "it would

seem" - - -

MR MURRAY:  I now understand the thrust of what Your Honour

said to me earlier about whether or not there was a

transcript. I must withdraw that remark,

Your Honour, because certainly at the order nisi

proceedings I had no transcript. What we put on

affidavit was either taken from somebody reading it

back to us or our notes. Nevertheless, when

Your Honour does see, if Your Honours will see, the

transcript of what the Coroner did say I would

respectfully submit that we reasonably, accurately

quoted what the Magistrate in fact did say. That

can be found from pages 1021 in particular to 1022

where what he did say when he gave his reasons

refusing our application to be heard is, in fact,

recorded.

MASON CJ: They are the two pages we have.

MR MURRAY: Yes, Your Honour, well that is what he said.

BRENNAN J: What is proposed is that we should have a

transcript of the proceedings before the

Full Court.

Annetta	56	9/8/90
MR MURRAY:	I understand that, Your Honour.	I was unable to

get them, I tried and I was unable to get them for

the purpose of this hearing. I do not suggest that

they are not available or that we tried hard

enough.

Your Honour, all I wish to say is that at

page 1014 - and if Your Honour does not wish me to

say this, may I just say it, then it can be as if I

had not said it - the coroner says - and I think it

is probably in fairness that I should put this, but

he says to me - I am reading the literal words:

So far as any suggestion might be that if a

person were likely to be in jeopardy

because of my power under the other sections

and that person should be alerted to that

possibility, then I agree with you.

And I said:

Indeed, that means that he would be given a

chance to make a submission and call evidence
and that was developed a little while

thereafter.

McHUGH J: That is consistent with what is in those

supplementary reasons.

TOOHEY J: Could I just ask you this, Mr Murray? In

paragraph 7 of the affidavit of Mr Brezniak, it is

said that:

During the hearing -

that is the hearing of the inquest:

The Coroner stated at that time "it is not the practice of the Western Australian Coroner to

hear submissions or final addresses."

Does that statement appear either on page 1021 or
1022?

MR MURRAY:  Your Honour, that was said at Kununurra which is

months before the date of the hearing of 1021 but,

Your Honour, if I might just draw Your Honour's

attention to page 1020 and 1021:

The reasons are based largely on the present

practice and the past history of coroners in

England and in this state.

TOOHEY J: Yes, thank you.

Annetts 57 9/8/90

MR MURRAY:  And the remark about that Coroner in Western

Australia was made at Kununurra, Your Honour. I

have matters very briefly in reply, Your Honour.

We respectfully submit - and I just draw Your Honours'attention to the things that I said

during my opening but I do submit this as part of

my brief submissions in reply, that 11(3),

Your Honour, in the narrow finding, all of that has been, we respectfully submit, overtaken by modern

requirements of the Coroner's jurisdiction. The

broadening role, it fills a gap that is not

replaceable in the judicial system neither by royal

commissions or police tribunals. The Coroner's

Court fills a continuing gap and, I think, O'Shea's

case makes some reference to that, Your Honour.

The rider, Your Honour, is the comment and the

recommendation and the history of the rider is that the jury was permitted to make brief riders as part

of its jurisdiction to determine identity, manner

and cause of death. That has expanded dramatically
in the last 100 years where riders are on all sorts

of matters and as my learned friend has conceded

may well be 50 pages and matters of a whole

spectrum of things are directed to various parts of

the administration of our community.

Your Honour, the history of the matter, in

case Your Honours are troubled: it did commence on

8 December 1987 in Perth - I was not there and I
was not involved in the matter - it went to

Kununurra where there were two hearings each of

only a week during which, as I have said before,

due to the length of the hearing many many

witnesses and a total of many hundreds of pages of

transcript were required. It reconvened on

8 November 1988 and Your Hon9urs are seized of the

history of the matter since then.

To the best of my recollection and subject to correct by the transcript, Your Honour, and I say

this only in the sense of committing myself, the

background to this case was when the loss of these

boys was discovered, an enormous amount of

publicity in Western Australia, it was a cause

celebre of giant significance and the court case

attracted an extraordinary and even to experienced

people an astonishing amount of attention

throughout Australia.

I would respectfully submit that judicial

notice would have been a reasonable assumption to

all of the background matters associated with this

case. It was a very very publicly exposed event, including the Coroner's proceedings themselves.

Your Honour, I have made the application for the

order that I seek. It would fairly be described as

Annetts 58 9/8/90

the high ground of my submissions. Your Honours

have heard my response to questions that have come

from Your Honours, including Your Honour

Mr Justice McHugh as to what I have to say as

regard to submissions concerning interest and

Your Honours also know that I say that that

interest in this case extends extraordinarily

w~dely to almost the whole of the subject-matter of

the inquest and must necessarily do in almost all

inquests held that are of any importance at all.

They are my submissions, Your Honours.

MASON CJ:  Thank you, Mr Murray. The Court will consider

its decision in this case and will adjourn.

AT 4.16 PM THE MATTER WAS ADJOURNED SINE DIE

Annetta 59 9/8/90