| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 10741 of 2009
| SAMUEL WATSON CAHIR | Plaintiff |
| v | |
| AUDREY JAMIESON (in her capacity as Coroner) CHIEF COMMISSIONER OF POLICE LEADING SENIOR CONSTABLE JOHN HAWKINS JANET JOAN COOPER | First Defendant Second Defendant Third Defendant Fourth Defendant |
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JUDGE: | BEACH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 June 2010 | |
DATE OF JUDGMENT: | 25 June 2010 | |
CASE MAY BE CITED AS: | Cahir v Jamieson & Ors | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 285 | |
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CORONER’S – Inquest – Judicial review – Whether findings open – Whether findings should be quashed – Availability of certiorari – Appropriateness of declaratory relief – Occupational Health & Safety Act 1985, s 25 – Occupational Health & Safety Act 2004, s 25 – Coroners Act 1985, ss 19, 21 and 59 – Coroners Act 2008, ss 83 and 87 and Schedule 1.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr O.P. Holdenson QC with Mr C.J. Winneke | Minter Ellison |
| For the First Defendant | No appearance | |
| For the Second Defendant | Ms F.M. Ellis | Victorian Government Solicitor’s Office |
| For the Third Defendant | Mr P.J. Lawrie | Russell Kennedy |
| For the Fourth Defendant | Mr P.J. Matthews | Victoria Legal Aid |
HIS HONOUR:
Introduction
On 22 May 2004, Mr Gregory Ram Biggs was shot by a member of Victoria Police, Sergeant Samuel Watson Cahir. Mr Biggs died shortly thereafter.
Over seven days between 24 May and 1 June 2007, the first defendant, as Coroner, conducted an investigation into the death of Mr Biggs. The investigation was carried out pursuant to the provisions of the Coroners Act 1985 (“the 1985 Coroners Act”).
On 23 October 2009, the Coroner delivered the record of investigation into the death of Mr Biggs.[1] In the record of investigation, the Coroner stated:
“But the circumstances of Gregory Biggs’ death is also a poignant example of the tragic consequences when the Police rely too heavily on bravado and spontaneity at the expense of policy and procedure and their actual training in relation to dealing with mental illness and/or drug affected persons. The Police have an obligation to the public to implement strategies for preventing violence not creating it or inflaming an already violent situation.”
[1]Cf s 20 of the 1985 Coroners Act.
In the record of investigation, the Coroner also stated:
“I find and believe that Sergeant Cahir failed to take reasonable care for his own health and safety and/or the health and safety of L/S/C Hawkins when he removed himself from the police vehicle and confronted Mr Biggs and as such may have committed an indictable offence as defined and intended by s 25 Occupational Health and Safety Act 2004.
In the circumstances, pursuant to section 21(3) Coroners Act 1985 I am required to report my belief to the Director of Public Prosecutions.” (Emphasis in original).
Following the delivery of the record of investigation, Sergeant Cahir instituted three proceedings against the Coroner (first defendant), the Chief Commissioner of Police (second defendant), Leading Senior…
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- Cahir v Jamieson [2010] VSC 285
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- [2010] VSC 285
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CaseChat Overview and Summary
The primary legal issues before the court were whether the findings of the coroner were indeed open to being quashed and whether the remedy sought by the applicant was appropriate. The applicant argued that the coroner had erred in law, resulting in a finding that was not supported by the evidence, and that the coroner had failed to properly consider relevant evidence. The applicant also sought a declaration that the coroner's findings were quashed, along with an order for certiorari to review the coroner's decision. The court had to consider the relevant statutory provisions and the scope of its powers in reviewing the coroner's findings.
The court found that the findings of the coroner were indeed open to being quashed, as the coroner had made an error in law and had failed to properly consider relevant evidence. The court also found that the appropriate remedy in this case was not one of certiorari but rather declaratory relief, as the court did not have the power to quash the coroner's findings under the relevant statutory provisions. The court held that the appropriate remedy was to declare that the coroner's findings were quashed, and to order that the coroner reconsider the matter in light of the court's findings. The court also made an order for costs in favour of the applicant.
In light of the above, the court made a declaration that the findings of the coroner were quashed, and ordered that the coroner reconsider the matter in light of the court's findings. The court also ordered that costs be paid by the respondent to the applicant. The court held that the applicant was entitled to the relief sought, as the coroner's findings were indeed open to being quashed and the appropriate remedy was declaratory relief. The court also found that the respondent was liable for the costs of the application.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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