Atkins v Attorney General of New South Wales

[2016] NSWSC 1412

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Atkins v Attorney General of New South Wales [2016] NSWSC 1412
Hearing dates:	5 September 2016
Decision date:	12 October 2016
Jurisdiction:	Common Law
Before:	McCallum J
Decision:	Proceedings dismissed
Catchwords:	ADMINISTRATIVE LAW – application for judicial review of decisions of the State Coroner and a Deputy State Coroner – factual issue as to the existence of the decision of the State Coroner of which review is sought – whether State Coroner directed that an inquest be held – whether decision entailed jurisdictional error – whether Deputy State Coroner misapprehended authority to require a person to give evidence   CORONIAL LAW – where coronial inquest suspended after plaintiff charged with murder in respect of the death with which the inquest was concerned – power to hold inquest after plaintiff acquitted of murder and manslaughter – whether State Coroner directed a coroner to hold the inquest – whether direction entailed jurisdictional error – whether coroner had jurisdiction to require the plaintiff to give evidence – whether coroner authorised to determine manner and cause of death in circumstance where the only person of interest in the investigation of the death had been acquitted of the murder of the deceased
Legislation Cited:	Coroners Act 1980 (NSW), s 19(1A) Coroners Act 2009 (NSW), ss 3, 6, 7, 10, 12, 13, 21, 22, 27, 29, 51, 55, 56, 65, 78, 79 Crimes (Appeal and Review) Act 2001 (NSW), ss 100, 109 Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2006 (NSW)
Cases Cited:	Coco v The Queen (2014) 253 CLR 455; [2014] HCA 20
Category:	Principal judgment
Parties:	Michael Atkins (plaintiff) Attorney General of New South Wales (first defendant) State Coroner of New South Wales (second defendant) E Truscott LCM (third defendant)
Representation:	Counsel: A Francis with C Wasley (plaintiff) D Kell SC with F Fernandez (defendants)   Solicitors: Marsdens Law Group (plaintiff) Crown Solicitor’s Office (defendants)
File Number(s):	2016/197360

Judgment

1. HER HONOUR: These proceedings raise an interesting question as to the coroner’s power in ongoing coronial proceedings to compel evidence from a person who has been acquitted of murder.

2. Matthew Leveson disappeared on 23 September 2007 when he was aged 20 years. His body has never been found. At the time of his disappearance, Mr Leveson was living in a de facto relationship with the plaintiff, Michael Atkins, who was then aged 44 years. So far as is known, Mr Atkins was the last person to see Mr Leveson alive. A coronial inquest concerning Mr Leveson’s death or suspected death, commenced in 2008, was suspended because Mr Atkins had been charged with Mr Leveson’s murder. The suspension of the inquest was mandatory in that circumstance. [1]

   1. Coroners Act 1980 (NSW), s 19 (that Act has since been repealed but the new Act contains the same requirement).

3. Mr Atkins was subsequently acquitted of Mr Leveson’s murder and of manslaughter.

4. In late 2015, Mr Atkins was served with a subpoena to give evidence as a witness in ongoing coronial proceedings concerning the death of Mr Leveson. He objected to giving evidence on the grounds of self-incrimination. On 20 May 2016, the coroner determined to require Mr Atkins to give evidence with the protection of a certificate under s 61 of the Coroners Act 2009 (NSW), the effect of which is that any evidence he gives (including any admissions he may make) and any evidence obtained as a consequence of his evidence would not be admissible against him in any further criminal proceedings. That unusual step was taken after careful deliberation by the coroner and with the support of police and most of Mr Leveson’s immediate family. In a thoughtful and thorough judgment, the coroner records (among other considerations) the family’s all-consuming need simply to learn what happened to Mr Leveson, even at the price of foreclosing any further criminal prosecution. More than anything else, Mr Leveson’s family wishes to bring his body home so that he might have the dignity and respect of a proper burial and they might have a place to visit and remember him.

5. By these proceedings, Mr Atkins seeks to impugn the coroner’s decision.

6. The application makes limited criticism of the reasoning of the decision itself, resting primarily on a convoluted series of propositions as to the manner in which the current inquest was convened. Specifically, Mr Atkins contends that there has been a misapprehension of jurisdiction on the part of the State Coroner (the second defendant) and that the coroner hearing the inquest (the third defendant) has in turn misapprehended her jurisdiction.

7. I am not persuaded of the correctness of either contention. The real issue raised by the application is whether the coroner has authority at this point to determine the manner and cause of Mr Leveson’s death. Mr Atkins accepts that there can be an inquest following a person’s acquittal of murder. He contends, however, that the inquest cannot, in that circumstance, be directed to the issue whether the acquitted person caused the death with which the inquest is concerned. [2]

   2. T15.4.

8. In my view, the coroner currently holding the inquest plainly has authority to do so. Her Honour’s authority to determine whether Mr Atkins caused Mr Leveson’s death is considered below. I am not persuaded that her Honour’s reasons for requiring Mr Atkins to give evidence entail error. My reasons for reaching those conclusions are as follows.

Circumstances in which the application is brought

9. Mr Leveson was last seen on CCTV footage leaving the ARQ nightclub with Mr Atkins shortly after 2am on the morning of Sunday 23 September 2007. He was reported missing the following Tuesday, 25 September 2007.

10. At about 2am on Thursday, 27 September 2007, police found Mr Leveson’s car at a reserve in Sutherland. The car was locked and there was no sign of Mr Leveson. Police searched the boot and found a receipt from Bunnings for the purchase of a mattock and gaffer tape. They went to Bunnings and reviewed CCTV footage which showed Mr Atkins purchasing a mattock and gaffer tape at midday on the 23rd of September (10 hours after he and Mr Leveson left the nightclub).

11. Mr Atkins was interviewed by police after they viewed that footage (on 27 September 2007). He gave an account that, after returning from the club on the Sunday morning, he and Mr Leveson went to bed and slept until 2pm that afternoon. Mr Atkins told police that, at about 8pm, he fell asleep on the couch and awoke to find that Mr Leveson was not at home. He said he assumed Mr Leveson had gone back to the ARQ nightclub, having been unhappy to leave the club “earlier than usual” the night before. Mr Atkins denied having gone to Bunnings. He later admitted to Mr Leveson’s parents that he had lied to the police about the mattock and gaffer tape.

12. Since that interview with police, Mr Atkins has exercised his right to silence.

13. Mr Atkins was charged with Mr Leveson’s murder almost a year later, on 5 August 2008. On the same date, a “report of death” was made to the coroner outlining the circumstances summarised above and coronial proceedings were commenced. The proceedings were allocated to Deputy State Coroner MacMahon (the title “DSC” is used to refer to individual Deputy State Coroners in the balance of this judgment).

14. At that time, coronial proceedings were governed by the Coroners Act 1980 (NSW) (now repealed). In the circumstance that Mr Atkins had already been charged with the murder of Mr Leveson, DSC MacMahon had no authority at that stage to determine the manner and cause of death. Section 19(1A) of the Act permitted the coroner to commence the inquest only for the purpose of taking evidence to establish the death, the identity of the deceased and the date and place of death. The section required the coroner, after taking evidence on those limited issues, to suspend the inquest. Section 22 of the same Act required the coroner, on suspension of the inquest, to record in writing his findings as to those limited issues. DSC MacMahon recorded his findings as follows:

“Pursuant to s 19(1A) I find that Matthew Leveson died on or about 23 September 2007 at Cronulla.

I find that a known person has been charged with an indictable offence to which s 19 applies.

I suspend the conduct of the inquest in accordance with s 19.”

15. Mr Atkins was tried for Mr Leveson’s murder before Hidden J with a jury between 21 August and 20 October 2009. He did not give evidence. On 20 October 2009, he was found not guilty by majority verdict. It appears to be common ground in the present application that Mr Atkins was acquitted of both murder and manslaughter. While the relevant material is not before me, I assume that is on the basis that manslaughter was left to the jury as an alternative verdict.

16. At common law, the double jeopardy rule would accordingly have precluded Mr Atkins’ being retried for either of those offences. However, that operation of the rule was expressly abrogated in 2006 by amendments to the Act now known as the Crimes (Appeal and Review) Act 2001 (NSW). [3] Pursuant to s 100(1) of that Act, the Court of Criminal Appeal has power to order that Mr Atkins be retried for Mr Leveson’s murder if satisfied that there is “fresh and compelling evidence” against him and that it is in the interests of justice for the order to be made. However, no police investigation can be carried out to obtain evidence for that purpose without the consent of the Director of Public Prosecutions. [4]

    3. Effected by the Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2006 (NSW).

    4. Crimes (Appeal and Review) Act, s 109(3).

17. On 1 September 2010, following Mr Atkins’ acquittal, DSC MacMahon had a conference with investigating police to discuss the status of the matter. After that meeting, the Registrar wrote to the Leveson family, saying:

His Honour advises that at this time, it is not appropriate to conduct a fresh inquest. His Honour has directed that the investigation of your son’s disappearance should continue. In the event of further evidence becoming available it will be considered and if appropriate, a fresh inquest may be conducted.

18. In mid-2014, police obtained the DPP’s consent under s 109(3) of the Crimes (Appeal and Review) Act to conduct an investigation into Mr Leveson’s death with a view to seeking Mr Atkins’ retrial. The investigation did not uncover evidence that would satisfy the “fresh and compelling evidence” test.

19. On 17 December 2014, the Leveson family wrote to the State Coroner requesting that an inquest be held. The letter gave an eloquent account of the family’s ongoing anguish and appealed to the State Coroner “to help us find out what happened to our son, our brother”. The family expressed the hope that an inquest would provide answers as to whether Mr Leveson is dead, how he died, where he died, when he died and who was responsible for his death. The letter concluded:

We believe the inquisitorial nature of an inquest as distinct from the adversarial nature of criminal courts might uncover additional evidence, which would perhaps result in an application for Atkins to be retried, or at the very least it would provide to us some formal findings as to what happened to Matt.

20. As DSC Truscott later explained, the prospect that Mr Atkins will be retried is now very slim; certainly, any evidence he gives under the protection of a s 61 certificate, being inadmissible against him, could not be considered as “fresh and compelling evidence” within the meaning of the Crimes (Appeal and Review) Act.

21. On 16 January 2015, the State Coroner made notes on the Coroner’s Court file requesting the registry to advise the family and police “that inquest will proceed before DSC MacMahon”. To DSC MacMahon, the State Coroner wrote:

“P MacM as this is a suspected death only I am of the view an inquest is mandatory under s 27(1)(c) but is probably desirable and available under s 79 in any event. I would be grateful if you would assume responsibility for the matter.”

22. Deputy State Coroner MacMahon was on leave when that note was made. He returned on 20 January 2015. Upon his return, he made the following notes on the Court file for the registry:

1. Please request Crown assistance in this matter for the resumed inquest.

2. Place in my March 2015 review.

23. Deputy State Coroner MacMahon retired from the role of coroner in late July 2015, moving to serve as a magistrate exercising different jurisdiction. On 21 July 2015, the State Coroner authorised DSC Truscott to hold an inquest.

24. On 18 November 2015, DSC Truscott ruled on an application by Channel Nine for access to material forming part of the Coroners Court file, publishing a written judgment (to which I will refer as the Channel Nine decision). The significance of that event for present purposes lies in the characterisation her Honour gave, in that judgment, to the earlier steps taken by DSC MacMahon and the State Coroner described above.

25. The inquest commenced before DSC Truscott on 7 December 2015. It sat for 17 days, taking evidence from 27 witnesses (8 police officers and 19 civilians). The evidence is recorded in 513 pages of transcript and includes 91 exhibits. The inquest is now complete, but for the evidence of Mr Atkins.

26. The inquest initially sat continuously from 7 December until 18 December 2015. On 17 December 2015, Mr Atkins was served with a subpoena to attend the inquest to give evidence in the week commencing 22 February 2016. Mr Atkins had by then foreshadowed that he would object to giving evidence. On 18 December 2015, the Crown Solicitor wrote to Mr Atkins’ lawyers to advise that DSC Truscott was giving “serious consideration” to issuing a certificate under s 61.

27. The hearing resumed on 18 February 2016 to determine whether Mr Atkins would take the objection, as had been foreshadowed on his behalf. Mr Atkins was called to the witness box by counsel assisting, sworn in and asked “Where is Matt’s body?” He objected to answering that and any further questions on the grounds that he may incriminate himself. Deputy State Coroner Truscott determined that there were reasonable grounds for the objection and indicated that she would grant Mr Atkins a certificate under s 61 if he willingly gave evidence. His counsel indicated on his behalf that he would not willingly give evidence.

28. The coroner then proceeded to take evidence from police and the Leveson family as to their attitude to the prospect of Mr Atkins being required to give evidence with the protection of a certificate. The evidence established that the family understood that the effect of the certificate would be that any information about Matthew Leveson’s death revealed in answers given by Mr Atkins could not be used to obtain an order for a retrial. As correctly observed in her Honour’s judgment at [100], the family’s wishes were not determinative as to whether the certificate should be granted. But the evidence given by the family gives a real and haunting illustration of the importance of the coroner’s jurisdiction. Mr Mark Leveson, Matthew’s father, gave evidence as follows:

Q. What you and all your family wish is to be able to lay Matt to rest with dignity, is that right?

A. Right now the best we can do is a tattoo on my right shoulder, which is Matt's tombstone. We have nothing more than that and that I see every day. So we certainly want to do more than that and have a formalised place where we can go and pay our respects to Matt.

Q. What's the effect on you and on your family not to have that formalised place where you can go and pay your respects to Matt?

A. Oh devastating. There's good days, there's bad days, but Matt's always there, always on your mind. And because we're all covered in tattoos that are dedicated to Matt, you'll always see reminders, you'll hear sounds, sense of smell, see certain things that will jog a memory, unexpectedly and so Matt's always there. We're always thinking of him and always wondering where he could be, where he’s been put, how he was killed. Why he was killed, where he was killed. We don’t ask, we know that, and that’s on our mind the whole time.

Q. In relation to that question about where was he killed?

A. Yes.

Q. And where is he buried, do you and your family still do things in relation to trying to find Matt's body?

A. Absolutely. We consider - we've been out - I'll give you a bit of background here. We go into the national park and which is a likely disposal site. I've downloaded information from the Bureau of Meteorology and we know that in the early hours of 24 September 2007 we had a 7/8 full moon night, very low cloud cover, no rain and low 20s, so quite a temperate night and a good night to be out in the bush. That, we feel, is the night Matt was disposed of, the night after he was killed and we used those conditions to go out looking, early hours of the morning, to see, to look at sites we can go and search later on. We did a recognizance there to see what sites are viable. We actually think like a killer. How would I dispose of a body? How would I hide my car? Where would I put a body? And we learnt very shortly after starting to look that you can't just guess sites, you've got to go and put some effort into this and look around because in the national park in night times, many roads and gates are locked, they're not accessible. They're okay by day but not of a night time. And often the ground we go and look at as well, you can't tell until you start digging, how good it is. Often the ground is rooted, there is tree roots all over the place. You can't access or penetrate the ground in a short time or a layer of rocks. We actually go and dig ourselves, we dig with a mattock ourselves to see what a mattock, find what we can do in the bush and then start at day time, after we've located a site we'll go back in the day and search for some detail and see what we can find in those spots. Now we're now, after this number of years, we're no longer looking for a mound, we're looking probably for a depression. The body will have decayed and rotted, bones will have cracked, soil will have settled and we are looking for now a depression in the ground. So we'd like to see actually a big bushfire go through the national park, it would make our job a lot easier. But we just look as much as we can and the chance of us finding Matt is probably one in a million, but not zero, so we'll keep looking. And that said too, we look at sites we can best think of. We're not infallible. We have friends and associates who have said, "Have you ever thought about so and so?", and we'll consider those sites, look at those. Some are viable, some are not, but we take on all advice and look at as much as we can. Even heading down the south coast. We could head down to see friends down south and just go right down the highway and think, "I wonder if Matt could be in there". It's just on your mind every time you pass through. I've even mentioned in the past, I travel for work and whenever I fly back into Sydney the plane goes over the national park, so you're looking down as well and you see, you look at spots there and think are they good spots or not good spots?   

29. Matthew Leveson’s mother and one brother share the father’s wish, above all, to know where Matthew’s body is; another brother chose not to give evidence in support of the coroner’s proposal, being less disposed to accept the prospect of immunity for any admission Mr Atkins might make.

30. On 20 May 2016, DSC Truscott ruled that Mr Atkins would be required to give evidence, publishing her reasons. I will refer to that decision as the s 61 decision.

31. After the publication of the s 61 decision, the inquest was adjourned to allow Mr Atkins to bring the present application. The inquest is scheduled to resume on 31 October 2016.

Decisions of which review is sought

32. It is unusual, in proceedings for judicial review, for there to be a dispute as to the existence of a decision under review. Unfortunately, there is such a dispute in the present case.

33. The further amended summons identifies two decisions of which judicial review is sought. First, Mr Atkins seeks review of a decision he contends was made by the State Coroner after he received the Leveson family’s letter requesting an inquest (Mr Atkins contends that the State Coroner directed DSC MacMahon to hold an inquest). The Attorney General disputes the characterisation put on those events by Mr Atkins. It is helpful to understand the context in which the dispute arises.

34. As already explained, DSC Truscott was not the coroner who commenced the inquest in 2008; that was DSC MacMahon, who has since moved to a different court. In each of her two published decisions (the Channel Nine decision in November 2015 and the s 61 decision in May 2016), DSC Truscott set out the history of the coronial proceedings, characterising certain steps taken before her involvement in the proceedings by reference to certain powers in the Coroners Act 2009. In particular, her Honour considered that:

1. on 1 September 2010, DSC MacMahon dispensed with the resumption of the inquest under s 79(1) of the Act;

2. on 16 January 2015, the State Coroner gave DSC MacMahon a direction pursuant to s 29 of the Act to hold an inquest.

35. Mr Atkins’ present application proceeds, perhaps not unreasonably, on the assumption that her Honour’s characterisation of those steps reflects the fact. He contends that the decision attributed to the State Coroner entailed a misapprehension of jurisdiction. The Attorney General contends that Mr Atkins’ application is misconceived in that respect. She submits that, contrary to the characterisation given to those events by DSC Truscott (adopted by Mr Atkins), the relevant steps were as follows:

1. on 1 September 2010, DSC MacMahon declined to exercise his power under s 79 to resume the inquest (pending further investigation), with the result that the inquest remained extant, suspended and able to be resumed at a later time;

2. on 16 January 2015, following the further investigation, the State Coroner expressed his views but made no direction;

3. on 20 January 2015, DSC MacMahon exercised his power under s 79 to resume the inquest.

36. The second decision of which review is sought is the s 61 decision made by DSC Truscott on 20 May 2016. The principal challenge to that decision is derivative; Mr Atkins contends that, the State Coroner having acted invalidly or else misapprehended his jurisdiction on 16 January 2015, DSC Truscott in turn misapprehended her jurisdiction. A critical aspect of the challenge to the second decision is the proposition that an inquest held pursuant to the putative direction of the State Coroner would be a new inquest subject to constraints that do not apply in the case of an inquest resumed after the completion of criminal proceedings.

37. Accordingly, before turning to the applicant’s grounds for review, it is necessary to resolve a factual contest as to what occurred on 16 January 2015 (which, in turn, requires consideration as to what occurred on 1 September 2010).

38. Unfortunately, the resolution of that dispute is complicated by the fact that the Coroner’s Court file is lost; it was last seen on 16 March 2016. Before the file was lost, the Coroners Court had provided the Crown Solicitor with certain documents from the file and those were in evidence before me. They include “action sheets” for the relevant periods (paper records) and entries on JusticeLink (the court’s electronic record system). However, an affidavit from the Registrar explains that the action sheets may not record all orders made by a coroner and that JusticeLink records can contain references that do not correspond to any entry on an action sheet. As I understood the position, it was in effect acknowledged by the Attorney General that, in the absence of the court file, neither the action sheets nor the JusticeLink records (nor a combination of the two) can be relied upon as a complete record of the proceedings.

39. The uncertainty is exacerbated by uncertainty as to the manner in which any order might have been recorded. At the time the State Coroner considered the Leveson family’s letter, the previous practice of the Coroners Court of making all case-management orders in open court had been revised, with the result that such orders are now often made in chambers. Accordingly, there is no transcript or sound recording to resolve the contest. If a direction was made in chambers, it ought to have been entered on JusticeLink but the Attorney General appears to accept that the absence of a JusticeLink entry is not determinative.

40. In the circumstances, it is not possible to be certain as to whether DSC Truscott’s characterisation of the steps taken on 1 September 2010 and 16 January 2015 reflects some additional record or information available to her Honour which is not before me or, rather, whether it reflects her Honour’s analysis of the same material as is available to me.

41. Before attempting to resolve those issues, it will be helpful first to give an overview of the coroner’s jurisdiction under the Coroners Act 2009.

The coroner’s jurisdiction

42. The Coroners Act 2009 contemplates the appointment of a single “State Coroner” and any number of “Deputy State Coroners”, in either case being persons who are magistrates. [5] The Act also allows the appointment of “coroners” and “assistant coroners”. [6] A coroner must be an Australian lawyer. [7] There is no specification as to the qualifications required for appointment as an assistant coroner.

    5. Coroners Act 2009, s 7.

    6. Coroners Act 2009, ss 12, 13.

    7. Coroners Act 2009, s 12(2).

43. The objects of the Act include enabling coroners to investigate certain kinds of deaths or suspected deaths in order to determine the identities of the deceased persons, the times and dates of their deaths and the manner and cause of their deaths. [8]

    8. Coroners Act 2009, s 3(c).

44. The State Coroner has a supervisory role in respect of such investigations. His [9] functions are set out in s 10(1) of the Act, as follows:

(1) The functions of the State Coroner are:

(a)    to oversee and co-ordinate coronial services in the State, and

(b)    to ensure that all deaths, suspected deaths, fires and explosions concerning which a coroner has jurisdiction to hold an inquest or inquiry are properly investigated, and

(c)    to ensure that an inquest or inquiry is held whenever it is required by this Act to be held or it is, in the State Coroner’s opinion, desirable that it be held, and

(d)    to issue guidelines to coroners to assist them in the exercise or performance of their functions, and

(e)    to exercise such other functions as are conferred or imposed on the State Coroner by or under this or any other Act.

9. The current State Coroner is a male.

45. The State Coroner has broad powers in support of those functions, as discussed below.

46. The functions of a Deputy State Coroner are to exercise any functions delegated to him or her by the State Coroner and to exercise such other functions as are conferred on a Deputy State Coroner under the Act. [10]

    10. Coroners Act 2009, s 10(3).

47. The Act contemplates the existence of “coronial proceedings” within which an inquest may or may not be held, depending on the circumstances. Coronial proceedings are inquisitorial more than adversarial. A coroner conducting coronial proceedings has a flexible range of powers adaptable to the different kinds of deaths that may be investigated, including viewing the deceased person’s remains[11] and taking possession of the remains (where there is jurisdiction to hold an inquest). [12] The State Coroner has power to give directions to a coroner concerning investigations to be carried out for the purposes of any coronial proceedings or proposed coronial proceedings; a coroner, in turn, has power to give directions to a police officer concerning investigations to be carried out for those purposes. [13]

    11. Coroners Act 2009, s 55.

    12. Coroners Act 2009, s 56.

    13. Coroners Act 2009, s 51.

48. As already noted, coronial proceedings do not always entail an inquest. The jurisdiction to hold an inquest is conferred by s 21 of the Act; it arises if the death is a “reportable death” or if a medical practitioner has not given a certificate as to the cause of death. The jurisdiction to hold an inquest concerning a “reportable death” is exclusive to the State Coroner and the Deputy State Coroners. [14] The term “reportable death” is defined to include circumstances where a person has died a violent or unnatural death, a sudden death the cause of which is unknown or has died under suspicious or unusual circumstances. [15] There is no doubt that the present inquest is concerned with a reportable death.

    14. Coroners Act 2009, ss 21, 22.

    15. Coroners Act 2009, s 6.

49. Under s 25 of the Act, a coroner who has jurisdiction to hold an inquest has authority to dispense with the inquest, unless the case falls into the category of cases in which an inquest is required to be held. Coronial proceedings may include proceedings to determine whether or not to hold an inquest. Section 26 requires a coroner to state written reasons for dispensing with an inquest if requested to do so in accordance with the section.

50. The Attorney General submits that the occasion for the exercise of the power to dispense with an inquest under s 25 (as opposed to the power to dispense with the resumption of an inquest under s 79(1)(b), considered below) arises before any inquest has been commenced; in other words, that the section is concerned with the issue whether to hold an inquest at all rather than with the fate of an inquest that has been commenced and suspended. On that basis, the Attorney General does not accept that, when DSC MacMahon declined to resume the inquest on 1 September 2010, his Honour was dispensing with the inquest in exercise of the authority under s 25.

51. The circumstances in which an inquest “is required to be held” are stated in ss 27 and 28. Section 27 provides:

(1)    An inquest concerning the death or suspected death of a person is required to be held in any of the following circumstances:

(a)    if it appears to the coroner concerned that the person died or might have died as a result of homicide (not including suicide),

(b)    if the jurisdiction to hold the inquest arises under section 23,

(c)   if it appears to the coroner concerned that:

(i)    it has not been sufficiently disclosed whether the person has died, or

(ii)    the person’s identity and the date and place of the person’s death have not been sufficiently disclosed,

(d) if it appears to the coroner concerned that the manner and cause of the person’s death have not been sufficiently disclosed (unless the case is one in which an inquest has been suspended or continued under section 78).

52. Section 27(1)(d) is important. The section makes plain that, in the case of an inquest that has been “suspended or continued under section 78”, the fact that manner and cause of death have not been sufficiently disclosed does not mean an inquest is “required to be held” (for the obvious reason that, in that event, the potential criminal proceedings take priority over the coronial proceedings). However, in referring specifically to s 78, the section implicitly contemplates that an inquest that has been suspended under that section but later resumed under s 79 (at a time when the prospect of conflict with any criminal proceedings no longer exists) may fall within the class of cases in which the coroner concerned might conclude that the manner and cause of the person’s death have not been sufficiently disclosed; in such a case, an inquest would be “required to be held” within the meaning of the section.

53. Section 28 of the Act provides:

An inquest is required to be held if the Minister or the State Coroner directs that it be held.

54. That section confers a wide power on the State Coroner in aid of his supervisory function under s 10(1)(c) of ensuring that an inquest is held if it is required under the Act or “desirable” in the opinion of the State Coroner. However, it has not been suggested that the State Coroner exercised that power in the present case.

55. The State Coroner’s supervisory function is further supported by s 29, which makes specific provision for him to review a decision of a coroner to dispense with an inquest, as follows:

(1)    If a coroner has dispensed with an inquest, the State Coroner may (after considering the coroner’s reasons for dispensing with the inquest and any other matters that the State Coroner considers relevant) direct a coroner to hold the inquest if the State Coroner is of the opinion that an inquest should nonetheless be held.

(2)    An inquest is to be held in accordance with the direction.

56. The wording of that section is important. The section provides that, if a coroner has dispensed with “an inquest”, the State Coroner may direct “a coroner” to hold “the inquest”. According to the ordinary meaning of those words, the inquest the State Coroner directs a coroner to hold (if he exercises his power under s 29) is the inquest that was dispensed with, not a separate, new inquest. Mr Atkins’ submissions assume otherwise.

57. The present case raises a number of issues concerning the application of s 29. First, as already explained, the parties are in dispute as to whether the State Coroner purported to exercise that power at all (that, in turn, raises an issue as to the proper characterisation of the step taken by DSC MacMahon on 1 September 2010). Secondly, assuming the State Coroner did exercise his power under s 29, there is a dispute as to whether he did so validly. Finally, assuming the State Coroner gave a valid direction under s 29, there is a dispute as to its effect (namely, whether the original inquest was resumed or a new inquest began).

58. As already noted, Mr Atkins contends that the State Coroner’s note dated 16 January 2015 in the action sheets records or otherwise reflects the position that, on that date, his Honour purported to give a direction to DSC MacMahon under s 29 to hold an inquest. Mr Atkins further contends that any such direction was vitiated by jurisdictional error because the State Coroner failed to have regard to the mandatory requirement under s 29(1) to consider DSC MacMahon’s reasons for dispensing with the inquest. [16] Separately, it was submitted that the decision entailed error because neither of the provisions referred to in the State Coroner’s note (s 27 and s 79) afforded a valid basis for ordering an inquest.

    16. Plaintiff’s amended written submissions filed 26 August 2016, paras 21-23.

59. Mr Atkins further contends (or assumes) that the effect of the putative direction given by the State Coroner was to commence a fresh or new inquest rather than to resume the inquest commenced by DSC MacMahon in 2008. The significance of that assumption is explained below.

60. The Attorney General contends that the State Coroner did not purport to exercise his power under s 29 to give a direction to DSC MacMahon, but merely raised matters as a result of which, on 20 January 2015, DSC MacMahon made his own determination to resume the inquest he had previously suspended, as allowed under s 79.

61. That submission is made in the context already explained that the Attorney General does not accept that DSC MacMahon made a decision on 1 September 2010 (under s 25 or otherwise) to dispense with the inquest. In the absence of such a decision by DSC MacMahon, according to the analysis contended for by the Attorney General, there would be no occasion for the exercise of the power under s 29 by the State Coroner. The Attorney General contends that, on 1 September 2010, DSC MacMahon simply declined (at that point) to exercise his power under s 79 of the Act to resume the suspended inquest and that it remained open to his Honour to do so at a later point. The Attorney points in that context to the fact that DSC MacMahon directed further investigation at that stage, which she submits is inconsistent with a decision dispensing with the inquest.

62. The ways in which coronial proceedings may be resolved are addressed in part 6.5 of the Act (sections 78 to 87). Section 78 addresses the obvious risk of overlap between coronial proceedings and criminal proceedings. Section 78(1) requires the coroner to suspend an inquest in a case where a person has been charged with an indictable offence that raises the issue whether the person caused the death with which the inquest is concerned or where the coroner forms the opinion, in the terms of s 78(1)(b), that:

(i)    the evidence is capable of satisfying a jury beyond reasonable doubt that a known person has committed an indictable offence, and

(ii)    there is a reasonable prospect that a jury would convict the known person of the indictable offence, and

(iii)    the indictable offence would raise the issue of whether the known person caused the death, suspected death, fire or explosion with which the inquest or inquiry is concerned.

63. Section 78(2) allows the coroner to commence or continue the inquest in such a case but only for the limited purpose of establishing the death, the identity of the deceased person and the date and place of death. The effect of that provision is to suspend any determination by a coroner as to the manner and cause of death.

64. Section 79 addresses the procedure following the suspension of an inquest under s 78. That section is important in the present case and it is necessary to set it out in full:

79 Procedure following suspension of inquest or inquiry

(1) Subject to subsections (2A), (3), (5) and (5A), a coroner who has suspended, or not commenced, an inquest or inquiry under section 78 may make an order:

(a)    that the inquest or inquiry is to resume or commence (as the case may be), or

(b)   to dispense with the resumption or holding of the inquest or inquiry.

(2)    An order under subsection (1) may be made on a coroner’s own motion or on the application of a person who has been granted leave to appear or to be represented at the inquest or inquiry.

(2A)    An order under subsection (1) that an inquest or inquiry be resumed may not be made unless the coroner has given the State Coroner written notice of:

(a)    the coroner’s intention to make the order, and

(b)    the day on which it is proposed to make the order (being a day that is no earlier than 14 days after the notice is given).

(3) If a person has been charged with an indictable offence in which the question of whether the person caused a death, suspected death, fire or explosion is in issue, an inquest or inquiry that has been suspended, or that has not commenced, under section 78 may not be resumed or commenced (as the case may be) until the charge is finally determined.

(4)    For the purposes of subsection (3), a charge is taken to be "finally determined" if:

(a)    the person has been discharged from proceedings with respect to the offence to which the charge relates, or

(b)    no further appeal can be made in proceedings in respect of the charge without an extension of time being granted, or

(c)    the Attorney General or the Director of Public Prosecutions directs that no further proceedings be taken against the person in respect of the charge.

(5) If the coroner has suspended an inquest or inquiry after forming the opinion referred to in section 78(1)(b) (and a person has not been charged as referred to in subsection (3) in relation to an indictable offence), the suspended inquest or inquiry may not be resumed until the Attorney General or the Director of Public Prosecutions advises that no proceedings will be taken against the known person (as referred to in section 78(1)(b)) in relation to the indictable offence.

(5A)   If the State Coroner considers that it is inappropriate for a suspended inquest or inquiry to be resumed, the State Coroner may, after consulting the coroner who suspended it, direct that the inquest or inquiry not be resumed.

(5B)    The State Coroner is not to give a direction under subsection (5A) to a coroner who is a Magistrate without the Chief Magistrate’s consent.

(6) If the coroner who suspended, or did not commence, an inquest or inquiry under section 78 is not available to resume, commence or dispense with the inquest or inquiry for any reason, the State Coroner or a coroner authorised by the State Coroner, may resume, commence or dispense with the inquest or inquiry in accordance with this section.

65. The Act contemplates the termination of an inquest (as opposed to its suspension or conclusion) where either the coroner or, where there is a jury, the jury, determines that the person whose death is the subject of the inquest has not died.

66. In the absence of a determination that the person did not die, the Act contemplates that an inquest, once commenced, will either continue until its conclusion or be suspended to avoid the prospect of clashing with potential criminal proceedings. In the latter case, the suspended inquest may be resumed but only if the conditions of the section are met. Alternatively, the resumption of the inquest may be dispensed with.

67. It is clear that s 79(1) confers authority, in the case of a suspended inquest, either to resume the inquest or to dispense with its resumption. What is less clear is whether the choice is binary or whether the coroner also has authority to decline to dispense with an inquest (in effect deciding to keep the inquest suspended for a further period of time). While arguments can be put for both propositions, I would think the better view is that the coroner does have authority to hold an inquest suspended. That is consistent with the coroner’s broad investigatory function, reflecting the social importance of resolution in the face of death.

68. Section 81 requires the coroner to record his or her findings when an inquest is either concluded or suspended. In the case of a suspended inquest, the coroner is to record his or her findings as to whether the person died and if so the person’s identity and the date and place of death. In the case of an inquest that has been concluded, the Coroner is also to record his or her findings as to the manner and cause of death. The Act thus contemplates that, if an inquest is suspended under s 78, there may never be any finding as to manner and cause of death. However, in order to conclude an inquest, the coroner is required to make such findings.

69. In summary, the Act contemplates that, so long as the coronial proceedings overlap with existing or potential criminal proceedings (or, as it was put in argument, so long as there is “jeopardy”), the authority to determine manner and cause of death remains suspended and those matters may never be determined in the coronial proceedings. Conversely, once that exposure is finally determined (one way or the other), the inquest may (and sometimes must) be resumed, whereupon the authority to make (and the duty to record) findings as to manner and cause of death is re-enlivened.

70. Finally, there are limited circumstances in which the Act contemplates the holding of more than one inquest into the same death, but none of those provisions is directed to the circumstance where an inquest has been suspended under s 78; they are directed rather to the case where a previous inquest was either terminated, concluded or vitiated by some feature. One is contained in s 83, which provides for a new inquest (defined as “a fresh inquest”) “even though the death or suspected death was previously the subject of another inquest”. The section defines circumstances in which a fresh inquest may be held and, separately, circumstances in which a fresh inquest must be held (the latter turning on the State Coroner’s formation of an opinion following the discovery of new evidence or facts).

71. The second is contained in s 85, which confers power on this Court to order that an inquest that has been held (or purportedly held) be quashed and that a new inquest be held if the Court is satisfied that it is necessary or desirable to do so in the interests of justice. Interestingly, the grounds on which an inquest might be quashed under that section include “an irregularity of proceedings”. Accordingly, it would appear to be the case that, even if the current inquest was not validly convened, the Court could, if persuaded it were desirable in the interests of justice, quash it and order a new inquest. In that event, the depositions taken at the previous inquest would be admissible in the new inquest: see s 64 of the Act.

72. The Act does not otherwise contemplate multiple inquests into the same death. It is the death or suspected death of a person that enlivens the Coroner’s jurisdiction and the determination of the matters identified in s 81 that brings it to conclusion.

73. As already explained, an aspect of Mr Atkins’ argument is the contention that the inquest the State Coroner directed DSC MacMahon to hold was a new inquest. He submits, accordingly, that DSC Truscott misapprehended her jurisdiction, mistaking it for an inquest that had been resumed under s 79 (on the premise that the charge against Mr Atkins had been finally determined) whereas Mr Atkins contends that, being a new inquest, it is governed by the constraints of s 78.

74. As an aspect of that contention, or perhaps separately, Mr Atkins submits that the charge against him is not “finally determined” within the meaning of s 79(4), with the result that the coroner has no authority to make findings as to the manner and cause of Mr Leveson’s death, as contemplated by s 81 of the Act.

75. The same submission was made to DSC Truscott, who gave careful consideration to the issue at [31]-[40] of the s 61 decision. I would respectfully share the conclusion reached by DSC Truscott that the criminal proceedings against Mr Atkins are “finally determined” within the meaning of s 79(4), for the reasons her Honour stated and the additional reasons stated below in the consideration of ground 4.

76. That is not to say that there is no protection for an acquitted person in a resumed inquest. It is clear enough that a resumed inquest continues to be governed by s 78; that is, if the coroner holding a resumed inquest were to form the opinion identified in s 78(1)(b), he or she would be obliged to suspend the inquest (again). However, as acknowledged by DSC Truscott in the s 61 decision, the evidence on the strength of which Mr Atkins has been acquitted would not now warrant the formation of such an opinion (since he has been acquitted). Her Honour expressly stated that she has not formed that opinion. [17]

    17. Section 61 decision at [41].

Determination as to what occurred on 1 September 2010

77. There is no JusticeLink entry for any order made on 1 September 2010 dispensing with the inquest or any note in the action sheets in the language of an order or direction made that date. The only relevant entry in Justicelink is a “free text” entry noting that a letter had been sent to the family “advising matter will still be investigated but will not be re-opened unless we receive further evidence”. On the same date, there is an entry stating “matter closed” but there are several other entries in the same terms followed by entries stating “file reopened”; those entries are clearly administrative and do not purport to record orders of the coroner.

78. The absence of any paper or electronic record of a decision dispensing with the inquest under s 79(1) is in itself a powerful basis for concluding that DSC MacMahon did not purport to exercise any power under s 79 on that date, determining rather to hold the matter under review.

79. However, in light of the fact that the Coroners Court file is lost and in deference to the contrary conclusion reached by DSC Truscott, it is appropriate to analyse the surrounding material. A note dated 1 September 2010 made by DSC MacMahon in the action sheet states:

Explained that there is no basis for reopening the inquest relating to the POI who has been found not guilty unless there were fresh evidence to be available that was not available at trial (such as the discovery of the body).

80. The note concludes (presumably for action by others):

There is no further action required in respect of this matter. The file can be put away. Please remove from callover list.

81. I accept, as submitted by the Attorney General, that the instruction to put the file away may be seen as an administrative act and is not determinative.

82. As already noted, the Registrar sent a letter to the Leveson family that date (repeated below for convenience):

His Honour advises that at this time, it is not appropriate to conduct a fresh inquest. His Honour has directed that the investigation of your son’s disappearance should continue. In the event of further evidence becoming available it will be considered and if appropriate, a fresh inquest may be conducted.

83. Mr Atkins’ submissions assert that the letter stands as DSC MacMahon’s written reasons, provided pursuant to s 26 of the Act, for a decision dispensing with the inquest. [18] I do not think it is appropriate to treat the letter as written reasons provided pursuant to that section. So far as the material before me reveals, no request was made for written reasons in accordance with the section. In any event, any reasons of the decision-maker would have to be given under his own hand.

    18. Plaintiff’s amended written submissions filed 26 August 2016, para 35.

84. In her judgment requiring Mr Atkins to give evidence, DSC Truscott wrote:[19]

“On 1 September 2010 the resumption of the inquest was dispensed with pursuant to s 79 of the Act and the case was referred to the NSW Police Unresolved Homicide Unit.”

19. Section 61 decision at [14]; her Honour had said the same thing in her earlier ruling on the application by Channel Nine, at [36].

85. In his written submissions, Mr Atkins adopts that characterisation with a subtle change in wording, contending that DSC MacMahon “dispensed with the first inquest” pursuant to s 79(1) of the Act (whereas DSC Truscott wrote that his Honour had dispensed with the resumption of the inquest). The Attorney General argues that the distinction is important. She contends that, in the circumstances that obtained on 1 September 2010 and on the proper construction of s 79(1), DSC MacMahon could only dispense with the resumption of the inquest and that his Honour could not dispense with the inquest (since it had already commenced). For convenience, s 79(1) is repeated below:

Subject to subsections (2A), (3), (5) and (5A), a coroner who has suspended, or not commenced, an inquest or inquiry under section 78 may make an order:

(a)    that the inquest or inquiry is to resume or commence (as the case may be), or

(b)   to dispense with the resumption or holding of the inquest or inquiry.

86. The Attorney General submits that, contextually, the authority to dispense with the resumption of the inquest arises in the case of an inquest that has been commenced but suspended whereas the authority to dispense with the holding of the inquest arises only in the case of an inquest that has not been commenced. The Attorney General contends that the exercise of the power to dispense with the resumption of an inquest does not bring the inquest to conclusion; it is a continuing power, the occasion for exercising which may arise more than once. I respectfully agree with that analysis.

87. A preliminary question, however, is whether DSC MacMahon did make a determination under s 79 that day to dispense with the resumption of the inquest. As noted on behalf of the Attorney General, the absence of any note of a decision in those terms in the action sheets is to be contrasted with his Honour’s careful note two years earlier when the inquest was suspended. In that context, the absence of any JusticeLink entry for such an order is significant.

88. The reference in the letter to the family to the prospect of a “fresh inquest” if further evidence became available suggests the existing inquest was regarded as having come to an end. However, as already explained, I do not think such a letter can be taken to be the written reasons for any decision.

89. On balance, I am not persuaded that DSC MacMahon did make a decision at that point to dispense with the resumption of the inquest. As already noted, the Attorney General submits that, if such a decision had been made, there would be no authority to make the direction his Honour made to police that further investigation be undertaken. Without determining the correctness of that submission, in my view the fact that his Honour directed further investigation is some indication of an intention that the inquest should remain suspended rather than being brought to an end. I am satisfied that, while declining to resume the inquest at that point, his Honour did not purport to exercise his power under s 79(1) to dispense with the resumption of the inquest, leaving it amenable to resumption at a later point pending the further investigation his Honour had directed.

90. Even if that is wrong, and his Honour is to be understood to have made a determination under s 79(1) to dispense with the resumption of the inquest, I do not think it necessarily follows that the inquest could not later be resumed (in circumstances where manner and cause of death had not been determined). In particular, a possible interpretation of s 29 is that the authority it confers on the State Coroner extends to reviewing a decision to dispense with the resumption of an inquest. However, that is a more difficult question and one which it is not necessary to decide in this case.

Determination as to what occurred on 16 January 2015

91. There is a measure of confusion in the material relied upon by Mr Atkins as to the reasons for the decision of which review is sought. The affidavit of Sharon Leigh Ramsden affirmed 13 July 2016 says:

The reasons for the decision of the State Coroner to direct that the inquest be held were not disclosed to the plaintiff or his solicitors until the copy of the record of those reasons was requested (at pages 51 to 81 of exhibit SR-1).

92. However, the reasons that appear at pages 51 to 81 of the exhibit are DSC Truscott’s reasons for granting the application by Channel Nine for the release of file material pursuant to s 65 of the Coroners Act. They do not purport to be reasons of the State Coroner for any direction under s 29 of the Act.

93. The decision of DSC Truscott does make reference to the (alleged) decision of the State Coroner, recording at [37]:

On 15 January 2015 (sic) State Coroner Barnes determined that the inquest should be resumed and made directions accordingly.

94. A footnote to that paragraph cites ss 29 and 79 of the Act, whereas the State Coroner’s note in the action sheets refers only to ss 27(1)(c) and 79 of the Act. Nowhere has the State Coroner himself referred to s 29. A possibility is that DSC Truscott mistook the reference to s 27 for a reference to s 29, but that is mere speculation on my part.

95. In the s 61 decision, DCS Truscott again attributed the resumption of the inquest to a direction given by the State Coroner under s 29 of the Coroners Act 2009, saying (at [66]):

Pursuant to s 29(1) of the Act, the State Coroner directed that this inquest be held. Accordingly, pursuant to s 29(2) this inquest is held pursuant to his direction.

96. In my respectful opinion, the remarks in each judgment record an assumption made by DSC Truscott which does not reflect the matters recorded by the State Coroner. It was of course entirely appropriate for her Honour to record her understanding as to the source of her jurisdiction to hold the inquest. However, it is significant that, for that purpose, it was not necessary for her Honour to determine any contest as to that issue. Her Honour had only to record what she understood to be reflected in the steps taken prior to her involvement in the case. Having concluded that DSC MacMahon had dispensed with the resumption of the inquest, it was logical for her Honour to conclude that the inquest was later resumed by direction of the State Coroner after his Honour reviewed that decision. However, I have concluded otherwise.

97. Of primary significance is the fact that there is no JusticeLink entry for 16 January 2015. Further, the notes made by the State Coroner do not reflect the formality that would be expected if he were to take the significant step of reviewing (and in effect overturning) a decision of one of his Deputy State Coroners. As submitted by the Attorney General, the language of the note is rather in the nature of the respectful expression of a view, in accordance with the State Coroner’s function to ensure that an inquest is held “whenever it is required by [the Act] to be held or it is, in the State Coroner’s opinion, desirable that it be held”. [20]

    20. Coroners Act 2009, s 10(1)(c).

98. For those reasons, I am satisfied that the juridical course the inquest took was as follows:

1. the inquest was commenced in 2008 but suspended, as required under s 19 of the Coroners Act 1980;

2. on 1 September 2010, DSC MacMahon reviewed the matter and declined to resume the inquest at that point, directing further investigation, with the result that the inquest remained suspended and extant;

3. on 16 January 2015, after the conclusion of the further investigation (which produced no significant further evidence), the State Coroner expressed the view to his Deputy State Coroner that an inquest was nonetheless probably required to be held and was desirable in any event;

4. on 20 January 2015, probably in deference to that view, DSC MacMahon exercised his power under s 79(1) to resume the suspended inquest. In the circumstance where it was the State Coroner who had suggested that the inquest be resumed, there was no utility in giving notice to the State Coroner, as would otherwise have been required under s 79(2A);

5. in July 2015, DSC MacMahon having become unavailable to hold the resumed inquest, the State Coroner authorised DSC Truscott to resume the inquest pursuant to s 79(6).

99. I turn to consider the relief sought against those findings.

Relief sought

100. The final orders sought by Mr Atkins are as follows:

An extension of time pursuant to Rule 59.10(2) of the Uniform Civil Procedure Rules 2005 (NSW) for commencing proceedings for judicial review of the decision of the second defendant, purportedly made under s 27(1)(c) and/or s 79 of the Coroners Act 2009 (NSW) namely, the direction made on about 16 January 2015 that the inquest be held (‘the first impugned decision’).

An order in the nature of certiorari pursuant to s. 69 of the Supreme Court Act 1970 (NSW) (‘the Act’) or, alternatively, a declaration pursuant to s 75 of the Act setting aside or declaring invalid the first impugned decision.

An order in the nature of prohibition pursuant to s 69 of the Act prohibiting the second defendant from purporting to resume the present inquest, or order a fresh inquest, by the operation of s 25 or 29 of the Coroners Act 2009 (NSW).

An order in the nature of certiorari pursuant to s 69 of the Act, or, alternatively, a declaration pursuant to s 75 of the Act setting aside or declaring invalid second impugned decision.

101. The relief sought does not appear to have kept up with the further amended summons in one respect; there was no suggestion in the submissions put to me that the State Coroner made a direction under s 27(1)(c), as suggested in the first prayer for relief set out above (relating to the first impugned decision). Section 27 states when an inquest is required to be held but is not a discrete source of power.

102. The Attorney General opposes the extension of time sought in respect of the first impugned decision. In my view, the delay is adequately explained. It was only upon receipt of the judgments of DSC Truscott that the potential significance of the step relied upon as the first impugned decision could be appreciated; even upon receipt of those judgments, the task of determining the juridical context in which the s 61 decision was made was complex. Having regard to the importance and complexity of the issues raised by the application, subject to what follows, I would have been satisfied that time should be extended.

101. However, in light of my conclusion that there was in fact no direction made under s 29 to hold an inquest, it makes no sense to grant the extension – there can be no application for review of a decision that was not made. For that reason alone, I have concluded that the application for an extension of time should be refused.

Grounds for review

104. Mr Atkins contends that the State Coroner’s decision made 16 January 2015 (the first decision) entailed jurisdictional error. It is contended on that basis that DSC Truscott in turn misapprehended her jurisdiction when she determined on 20 May 2016 to require Mr Atkins to give evidence (the second decision). As already noted, an aspect of the challenge to the second decision is the contention that, by force of the events that preceded it, the current inquest is not a resumed inquest (an inquest that has been suspended under s 78 and subsequently resumed under s 79) but a new, second inquest.

105. It follows from my conclusions above that, insofar as the application concerns the steps taken by the State Coroner on 16 January 2015, it is misconceived because no decision amenable to judicial review was made on that date.

106. I acknowledge that, where possible, a judge at first instance should endeavour to determine all issues raised by the pleadings against the risk of error in the finding that is determinative. It has proved difficult to undertake that task in the present case.

107. Grounds 1 and 2 in the further amended summons relate to the first decision. Ground 1 is:

In respect of the first decision, the second defendant erred in the conclusion that:

(a) the inquest was mandatory pursuant to s 27(1)(c) of the Coroner’s Act 2009;

(b) the inquest was “probably desirable and available under s 79 of the Coroner’s Act 2009 in any event”.

108. Ground 2 is:

The decision to order the second inquest was infected by a misapprehension of the limits of the Act.

109. With unfeigned respect to those representing Mr Atkins, the precise error alleged by ground 2 was not entirely clear and may have shifted during the proceedings as different interpretations emerged as to the proper characterisation to be placed on the various steps taken in the coronial proceedings discussed above.

110. Underlying the whole application are two assumptions which, in my view, are misconceived. The first is that the original inquest was dispensed with; the proposition being, implicitly, that the power under s 79(1) to resume it is spent. The second is that, in that circumstance, the State Coroner is to be understood to have directed that a new inquest be held, the argument being that, for various reasons, he mistook his authority to do so.

111. The Attorney General contends that there is and has only ever been one inquest. For the reasons already explained, I agree. Viewing the coronial proceedings through that prism, most of the contentions put on behalf of Mr Atkins fall away. In what follows, I have endeavoured to identify and determine such matters as are able to be determined on the assumption that my conclusion regarding the step taken by the State Coroner is wrong.

112. In his amended written submissions filed 26 August 2016, Mr Atkins put the argument concerning s 29 as follows: [21]

“the first decision reveals that the second defendant did not consider s 29 of the Act in ordering the new inquest nor did the second defendant have regard to what is mandatory by the operation of s 29(1) of the Act namely a consideration of the reasons of the Coroner who originally dispensed with the inquest before so ordering.

21. Plaintiff’s amended written submissions filed 26 August 2016, para 22.

113. By the time of the hearing, the Attorney General had filed her submissions dated (2 September 2016) arguing that no such decision was made on 16 January 2015. In that circumstance, it was not entirely clear at the hearing whether the argument set out above was maintained. There is a degree of artificiality in determining a ground said to be “revealed” by a decision I have determined was not made. The conclusion that there was no such decision is fortified by the very matters relied upon to impugn it.

114. Mr Atkins’ submission assumes the State Coroner’s note made 16 January 2016 constitutes the record of his Honour’s decision. It may be accepted that there is no reference in that note either to s 29 or to DSC MacMahon’s reasons. That is a further factor pointing to the likelihood that the State Coroner did not purport to exercise his power under s 29 (because he did not understand DSC MacMahon to have “dispensed with the inquest”, which is the event that enlivens the power under s 29).

115. In any event, assuming the State Coroner made a direction under s 29, I am not persuaded that the record (limited as it is) reveals error as contended. The State Coroner’s note sits within a chronological series of notes which include DSC MacMahon’s note recording his view that there was no basis for reopening the inquest unless fresh evidence was available. The last entry in 2010 records the fact that a letter was sent to the next of kin. The next note is dated 23 October 2014 where it is recorded that the files were returned for the purpose of considering a letter from the detective in charge of the investigation. There is then a note in the State Coroner’s handwriting dated 29 October 2014 recording a meeting with the detective in which the detective informed the State Coroner that the parents were “pushing for an inquest". The State Coroner advised the detective to tell the family to write to him “setting out what they believed it would achieve”.

116. As already noted, a letter from the family was sent on 24 December 2014; the next entry is the State Coroner’s note set out above.

117. Assuming DSC MacMahon dispensed with an inquest in 2010, there is no reason to think the State Coroner did not have regard to his reasons for doing so when he came to consider the family’s letter in January 2015. It is important in this context to bear in mind the State Coroner’s function to ensure that all deaths and suspected deaths are properly investigated[22] and to ensure that an inquest is held whenever it is required by the Act to be held or it is, in the State Coroner’s opinion, desirable that it be held. [23] One thing that is revealed by the State Coroner’s short note is that his Honour plainly turned his mind to each of those issues, recording a tentative view that an inquest was required to be held under s 27(1)(c) and a firmer view that it was desirable under s 79.

     22. Coroners Act 2009, s 10(1)(b).

     23. Coroners Act 2009, s 10(1)(c).

118. The only occasion for the State Coroner to turn his mind to those issues was the circumstance of DSC MacMahon having earlier reached a different conclusion (that there was no basis for reopening the inquest in the absence of fresh evidence). The State Coroner evidently concluded that, even without further evidence, there were issues that remained to be determined in the coronial proceedings. Whether that conclusion was expressed as a direction under s 29 or merely the views of a supervisor, it can scarcely have been reached without regard to what had gone before, including DSC MacMahon’s reasons for not resuming the inquest in 2010.

119. For those reasons, assuming (contrary to the conclusion I have reached) that the State Coroner did purport to give a direction under s 29(1), I am not persuaded that the record reveals he must have overlooked the mandatory consideration referred to in that section.

120. Turning to ground 1, Mr Atkins contends that the State Coroner’s “factual finding” that the inquest was mandatory pursuant to s 27(1)(c) was “not open”. It may be doubted whether the State Coroner made a factual finding based on s 27(1)(c). His reliance upon that provision was expressed in tentative terms. It hinged upon the characterisation of Mr Leveson’s death as a “suspected death”.

121. Mr Atkins submits that there was no basis for that characterisation of the inquest in circumstances where DSC MacMahon had found, in 2008, that Mr Leveson died at Cronulla. There may be force in that submission. There has already been a finding of death in this inquest. If (as the Attorney General contends) there is but one inquest, an interesting question may arise as to the authority of the incoming coroner to make a different finding (or indeed any finding) on that issue.

122. However, that is not the end of the matter. Section 27(1)(c) refers to another circumstance in which an inquest is “required to be held”, namely, where the person’s identity and the date and place of death have not been “sufficiently disclosed”. Although DSC MacMahon had made findings on that issue, they were made at the broadest level (“I find that Matthew Leveson died on or about 23 September 2007 at Cronulla”). It was arguably open to the State Coroner to reach the view that the date and place of Mr Leveson’s death, although the subject of earlier findings, had not been sufficiently disclosed. Certainly, the lack of certainty surrounding those issues was a focus of the family’s letter of 17 December 2014, which included the following remarks:

When the jury came back with the not guilty verdict our family was shattered. We still do not know what has happened to Mat. The trial has just left us more confused.

123. Accordingly, I would reject the submission that it was not open to the Coroner to reach the view that an inquest was required to be held. The State Coroner could equally have invoked s 27(1)(d) but does not appear to have turned his mind to that provision.

124. Separately, Mr Atkins submits that the decision entailed error in its reliance on s 79 of the Act. The basis for that contention was the further contention that s 79 has no application to a circumstance where an inquest has been dispensed with.

125. As already explained, I would accept the Attorney General’s submission that, on any view, DSC MacMahon did not dispense with the inquest; if anything, he dispensed with the resumption of the inquest. There is good reason to think that is not a “once and only” power.

126. Leaving that issue aside, the burden of Mr Atkins’ submission was that, once a Deputy State Coroner dispenses with an inquest, the inquest is concluded and the State Coroner has no authority to direct that it be held. It appeared further to be contended that only the coroner who suspends an inquest can exercise the power under s 79 to resume or dispense with it.

127. However, assuming (as Mr Atkins does) that DSC MacMahon dispensed with the inquest, that is exactly the circumstance to which s 29 is directed. In my view, s 29 is to be understood as being in the nature of a power of review by the State Coroner of a decision to dispense with an inquest. Importantly, s 29 makes plain that the direction of the State Coroner, if he exercises that power, will be to hold “the inquest”, that is, the very inquest a coroner has dispensed with. The authority of the State Coroner to revisit such a determination by a coroner serves his supervisory function to ensure that all deaths and suspected deaths are properly investigated.

128. In any event, in light of my conclusion that there was no direction given under the Act by the State Coroner, the application on that ground must be dismissed.

129. Grounds 3 and 4 relate to the decision of DSC Truscott to compel Mr Atkins to give evidence. Ground 3 is:

The third defendant has mistakenly asserted the existence of a jurisdiction to compel the plaintiff and accordingly the decision is invalid.

130. Ground 4, which is relied upon in the alternative, is:

The third defendant misapprehended the nature and limits of jurisdiction in:

(a) finding that the provisions of s 78(1) of the Act had no application for the second inquest;

(b) the determination that the plaintiff was required to give evidence pursuant to s 61 of the Act.

131. Ground 3 was expressly put as being based on the success of ground 1. [24] I accept that DSC Truscott proceeded on the assumption that she had jurisdiction to hold an inquest because the State Coroner had made a direction under s 29 of the Act. For the reasons explained above, I am satisfied that there was no such direction. However, I am satisfied that DSC MacMahon determined, on 20 January 2015, to resume the inquest he had previously suspended, as allowed under s 79(1) of the Act. Assuming his Honour had authority to resume the inquest at that point, it would follow that DSC Truscott had jurisdiction to hold the inquest. A mistaken assumption as to the source of that jurisdiction would not invalidate the inquest.

     24. Plaintiff’s amended written submissions filed 26 August 2016, para 67; 71-72.

132. Even if I am wrong about that, and the true position is that the inquest was resumed pursuant to a direction of the State Coroner under s 29 (as contended by Mr Atkins), I am not persuaded that the direction entailed jurisdictional error, for the reasons state above.

133. It follows that ground 3, as argued, must be rejected. There is one further issue that potentially arises in this context (but which I did not understand to be argued in support of ground 3), namely, Mr Atkins’ separate contention that there was no authority to resume the inquest in exercise of the power under s 79(1) because the charge against him is not “finally determined” within the meaning of s 79(4). That issue is considered in the discussion of ground 4 below.

134. Ground 4 raises the contention to which I have already referred that a new inquest is governed by a different procedure from that which governs a resumed inquest. For the reasons I have explained, I am of the view that there is, and has only ever been, one inquest. Subject to the question of whether the criminal proceedings are “finally determined” within the meaning of s 79(4), it follows that DSC Truscott is presently holding an inquest that has been duly resumed under s 79 and that her Honour has authority to determine the manner and cause of Mr Leveson’s death (albeit subject to the constraint in s 81(3) as to the content of the record of her findings).

135. As already noted, in her s 61 decision, DSC Truscott considered an argument that the criminal proceedings against Mr Atkins are not “finally determined” within the meaning of s 79(4). For convenience, that provision is repeated below:

For the purposes of subsection (3), a charge is taken to be "finally determined" if:

(a)   the person has been discharged from proceedings with respect to the offence to which the charge relates, or

(b)    no further appeal can be made in proceedings in respect of the charge without an extension of time being granted, or

(c)    the Attorney General or the Director of Public Prosecutions directs that no further proceedings be taken against the person in respect of the charge.

136. Mr Atkins argues that the term “discharged” refers only to a person discharged from committal proceedings and that, where a person has been acquitted after trial, the charge is not “finally determined”, meaning that there is no power to resume the inquest. Adopting the language of s 79(3), Mr Atkins submits that he is a person who “has been charged with an indictable offence” in which the question of whether he caused a death is in issue and that, accordingly, the inquest that has been suspended under section 78 may not be resumed until the charge is finally determined (which, on his analysis, will be never).

137. There is no logical reason why an acquitted person should enjoy greater protection under the Act than a person discharged at committal or a person against whom the Director has determined not to proceed. Mr Atkins relied on the fact that an acquitted person remains liable to a retrial under the Crimes (Appeal and Review) Act. But, leaving aside the case where a person has been convicted, the jeopardy is no less (and probably greater) in the other circumstances listed in the section.

138. Mr Atkins submitted that so fundamental a protection as that afforded by s 78 could not be abrogated without clear wording, citing the decision of the High Court in Coco v The Queen. [25] The recitation of that principle rings hollow when the wording of the section is clear enough to abrogate the same protection in the case of every other potential outcome of a criminal charge. In any event, in my view, the term “discharged” is as apt to describe how an accused person is dealt with at the conclusion of a trial (where there is an acquittal) as at the conclusion of committal proceedings (where the person is not committed for trial). It may be that it is a term of art of which I am ignorant but no authority was cited to support that proposition.

     25. (2014) 253 CLR 455; [2014] HCA 20.

139. For those reasons, I do not accept that DSC Truscott’s determination to require Mr Atkins to give evidence was decided “in the context of a misconceived statutory duty to determine manner and cause of death”, as contended by Mr Atkins. [26] On my understanding of the legislation, subject to the constraint imposed by s 81(3), her Honour has authority to determine those matters.

     26. Plaintiff’s amended written submissions filed 26 August 2016, para 84.

140. However, it does not follow that s 78 can have no application in the resumed inquest.

141. In her decision requiring Mr Atkins to give evidence, DSC Truscott notes that the inquest was resumed “in the absence of any new, let alone ‘fresh or compelling’, evidence after Mr Atkins was acquitted of the murder or manslaughter of Matthew Leveson.” On that basis, her Honour concluded that there is (presently) no basis to refer Mr Atkins to the prosecuting authorities.

142. That position could change, at least in theory. If Mr Atkins gives evidence as to the manner and cause of Mr Leveson’s death in terms suggesting the commission by him of an indictable offence which would raise the issue of whether he caused Mr Leveson’s death, the s 61 certificate would preclude the admission of that evidence in any retrial of Mr Atkins. If, however, such evidence were to emerge from a source other than Mr Atkins’ evidence at the inquest, s 78 would apply and could require DSC Truscott to suspend the inquest again. That protection remains, regardless of the fact that the inquest is a resumed inquest in which the same provision had previous application.

143. As already noted, Mr Atkins has submitted that an inquest resumed following a person’s acquittal of murder cannot be directed to the issue whether the acquitted person caused the death with which the inquest is concerned. I do not think that is correct. As noted by DSC Truscott in the s 61 decision, s 81(3) prohibits her Honour from making any record of her findings in terms that indicate or in any way suggest that an offence has been committed by any person. That provision is directed to the content of the record of the findings, not the object of the inquest.

144. In the present case, difficult questions may arise as to the findings that can be recorded. That will be an issue for the Deputy State Coroner’s careful management, depending on the evidence that is given. I am not persuaded that, at this stage of the inquest, it is beyond her Honour’s authority to investigate manner and cause of death.

145. In any event, no error has been demonstrated in DSC Truscott’s analysis of the position as it presently stands. Underlying Mr Atkins’ submissions is the assumption that, notwithstanding his acquittal of murder, Parliament must have intended that his right to silence remains so fundamental that the coronial proceedings must give way to it. The right to silence is of course important. But so is the coroner’s jurisdiction. The existence of the coroner’s power to grant a certificate under s 61 of the Coroners Act acknowledges the prospect that there will be cases in which a higher value will be placed on determining the manner and cause of a person’s death than on the prosecution of any criminal offence. No error has been established in DSC Truscott’s determination that this is such a case.

136. For those reasons, I make the following orders:

1. that the application for an extension of the time for commencing proceedings for judicial review in respect of the first impugned decision be refused;

2. that the proceedings be dismissed.

*****

Endnotes

Decision last updated: 12 October 2016