Christensen v Deputy State Coroner - [2021] QSC 38

SUPREME COURT OF QUEENSLAND

CITATION:

Christensen & Anor v Deputy State Coroner [2021] QSC 38

PARTIES:

JAYE CHRISTENSEN

(first applicant)
and
NEIL THOMAS DAVY AND HEATHER-BELLE DAVY
(second applicant)

v

THE DEPUTY STATE CORONER JANE BENTLEY
(respondent)
and

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND

(intervener)

FILE NO:

BS 11449 of 2020

DIVISION:

Trial Division

PROCEEDING:

Application for judicial review

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

4 March 2021

DELIVERED AT:

Brisbane

HEARING DATE:

12 February 2021

JUDGE:

Rafter AJ

ORDER:

The application for judicial review is dismissed.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND CONDUCT – REVIEW OF PARTICULAR DECISIONS – where the applicant seeks judicial review of a Coroner’s directions that a witness be excused from giving oral evidence – where the witness is suffering from post-traumatic stress disorder and giving oral evidence would adversely impact the witness’ mental state - where the witness is instead directed to provide sworn answers in writing – whether the Coroner’s directions are liable to be quashed or set aside because the Coroner did not have the power to make the directions

Coroners Act 2003 (Qld), s 3, s 28, s 34, s 35, s 36, s 37, s 39, s 45, s 46, s 48

Judicial Review Act 1991 (Qld), s 29(2), s 51(1)

Annetts v McCann (1990) 170 CLR 596, cited
Beale v O’Connell [2018] 1 Qd R 461, cited
Doomadgee v Clements [2006] 2 Qd R 352 cited
Hurley v Clements [2010] 1 Qd R 215, cited
Maksimovich v Walsh and the Attorney-General (1985) 4 NSWLR 318, cited
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, cited
Neumann v Hutton [2020] 3 QR 419, cited
R v South London Coroner; Ex parte Thompson (1982) 126 SJ 625, cited
The Queen v A2 (2019) 93 ALJR 1106, cited

Walter Mining Pty Ltd v Hennessey [2010] 1 Qd R 593, cited

COUNSEL:
M O Plunkett for the applicants
M T Hickey for the intervener, Attorney-General for the State of Queensland

The Deputy State Coroner was granted leave to abide the order of the Court and was excused from further attendance

SOLICITORS:

Fisher Dore Lawyers for the first applicant
Jasper Fogerty Lawyers for the second applicant
G R Cooper, Crown Solicitor for the Attorney-General

The Deputy State Coroner is conducting an inquest into the deaths of Corey Christensen and Thomas Davy at Alva Beach.
By this application for a statutory order of review, the applicants seek orders quashing or setting aside directions made by the Deputy State Coroner that a witness be excused from giving oral evidence; that any party wishing to ask questions of the witness submit those questions in writing; and that the witness respond by sworn statement. The applicants contend that the Deputy State Coroner did not have the power to make these directions. The first applicant is Mr Christensen’s wife. The second applicants are Mr Davy’s parents.
On 29 October 2020 the Attorney-General gave notice of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] QSC 38
Decision Date: 4 March 2021

CaseChat Overview and Summary

In the case of Christensen v Deputy State Coroner, the applicant sought judicial review of directions made by the Deputy State Coroner during an inquest into a death. The inquest involved a witness, Mr Webber, who was suffering from post-traumatic stress disorder (PTSD). The Deputy State Coroner directed Mr Webber to provide his sworn answers in writing instead of giving oral evidence, due to the potential adverse impact on Mr Webber's mental state. The applicant argued that the Coroner did not have the power to make such directions, as it restricted the applicant's right to cross-examine witnesses.

The court was required to determine whether the Deputy State Coroner had the power to make directions that Mr Webber provide sworn answers in writing. The argument focused on the statutory powers of the Coroner under the Coroners Act 2003. The court noted that the Act confers broad discretion upon the Coroners Court to give directions and make orders considered appropriate for the conduct of the inquest. The court also considered the nature of a coronial inquest as a fact-finding exercise, not a method of apportioning guilt, and that the Coroners Court is not bound by the rules of evidence.

The court concluded that the Coroners Act confers broad and unfettered discretion to the Coroners Court to inform itself in any way it considers appropriate, without being bound by the rules of evidence. The court held that the Deputy State Coroner had the power to make the directions in question, as it was within the scope of the broad discretion conferred by the Act. The court rejected the argument that the applicant's right to cross-examine witnesses should prevail over the broad discretion reserved to the Coroner. The court held that the directions were within the scope of the statutory powers of the Coroner, and therefore, the application for judicial review was dismissed.

Orders

Orders of the court

The application for judicial review is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Mr Hickey for the Attorney-General submitted that s 35(1) of the Act confers upon the Coroners Court a broad discretion to give directions and make orders that are considered appropriate for the conduct of the inquest. He submitted that the argument for the applicants provides no textual analysis of the Act, nor authority to support the proposition that their right to cross-examine witnesses should prevail over the broad discretion reserved to the Coroner. Mr Hickey submitted that by reserving broad and unfettered discretion to the Coroners Court to inform itself in any way that it considers appropriate, without being bound by the rules of evidence, the Act recognises the fact finding exercise engaged in by the Court. Consideration The issue is limited to whether the Deputy State Coroner had the power to make directions that Mr Webber provide sworn answers in writing. It was not argued that the decision itself was unreasonable or that the Deputy State Coroner failed to consider relevant evidence or took into account irrelevant evidence or that the reasons are inadequate. The issue depends upon the proper construction of the relevant provisions of the Act within their statutory context.[8] One of the objects of the Act is to establish procedures for investigations, including by holding inquests into particular deaths.[9] [8]The Queen v A2 (2019) 93 ALJR 1106 at 1116-1118 [31] – [37], 1136 [148]; Beale v O’Connell [2018] 1 Qd R 461 at 469 [37].[9]Coroners Act 2003, s 3(b). The nature of a coronial inquest has been explained by Lord Lane CJ in a frequently cited judgment in R v South London Coroner; Ex parte Thompson:[10]“Once again it should not be forgotten that an inquest is a fact finding exercise and not a method of apportioning guilt. The procedure and rules of evidence which are suitable for one are unsuitable for the other. In an inquest it should never be forgotten that there are no parties, there is no indictment, there is no prosecution, there is no defence, there is no trial, simply an attempt to establish facts. It is an inquisitorial process, a process of investigation quite unlike a trial where the prosecutor accuses and the accused defends, the judge holding the balance or the ring, whichever metaphor one chooses to use.”[10](1982) 126 SJ 625, 628 (per Lord Lane CJ); cited in Annetts v McCann (1990) 170 CLR 596 at 616 (per Toohey J); Hurley v Clements [2010] 1 Qd R 215 at 232 [26]; Neumann v Hutton [2020] 3 QR 419 at 426 [12]. The Coroners Court is a court of record and is constituted by a Coroner.[11] The common law, to the extent that it operated to impose a duty or confer a power on a Coroner of the Coroners Court, has no effect after the commencement of the Act.[12][11]Coroners Act 2003, s 64.[12]Coroners Act 2003, s 104. In particular, a Coroner investigating a death need not view the person’s body and a Coroners Court does not sit with a jury: s 104(2). The Coroners Court is not bound by the rules of evidence, and may inform itself in any way it considers appropriate.[13] A Coroner who is investigating a death must, if possible, find the identity of the deceased person, how the person died, when the person died, where the person died and in particular whether the person died in Queensland, and what caused the person to die.[14] A Coroner may, when appropriate, comment on anything connected with a death that relates to public health or safety, the administration of justice or ways to prevent deaths from happening in a similar manner.[15][13]Coroners Act 2003, s 37(1).[14]Coroners Act 2003, s 45(2).[15]Coroners Act 2003, s 46(1).

CITATION:	Christensen & Anor v Deputy State Coroner [2021] QSC 38
PARTIES:	JAYE CHRISTENSEN (first applicant) and NEIL THOMAS DAVY AND HEATHER-BELLE DAVY (second applicant) v THE DEPUTY STATE CORONER JANE BENTLEY (respondent) and ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (intervener)
FILE NO:	BS 11449 of 2020
DIVISION:	Trial Division
PROCEEDING:	Application for judicial review
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	4 March 2021
DELIVERED AT:	Brisbane
HEARING DATE:	12 February 2021
JUDGE:	Rafter AJ
ORDER:	The application for judicial review is dismissed.
CATCHWORDS:	ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND CONDUCT – REVIEW OF PARTICULAR DECISIONS – where the applicant seeks judicial review of a Coroner’s directions that a witness be excused from giving oral evidence – where the witness is suffering from post-traumatic stress disorder and giving oral evidence would adversely impact the witness’ mental state - where the witness is instead directed to provide sworn answers in writing – whether the Coroner’s directions are liable to be quashed or set aside because the Coroner did not have the power to make the directions Coroners Act 2003 (Qld), s 3, s 28, s 34, s 35, s 36, s 37, s 39, s 45, s 46, s 48 Judicial Review Act 1991 (Qld), s 29(2), s 51(1) Annetts v McCann (1990) 170 CLR 596, cited Beale v O’Connell [2018] 1 Qd R 461, cited Doomadgee v Clements [2006] 2 Qd R 352 cited Hurley v Clements [2010] 1 Qd R 215, cited Maksimovich v Walsh and the Attorney-General (1985) 4 NSWLR 318, cited Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, cited Neumann v Hutton [2020] 3 QR 419, cited R v South London Coroner; Ex parte Thompson (1982) 126 SJ 625, cited The Queen v A2 (2019) 93 ALJR 1106, cited Walter Mining Pty Ltd v Hennessey [2010] 1 Qd R 593, cited
COUNSEL:	M O Plunkett for the applicants M T Hickey for the intervener, Attorney-General for the State of Queensland The Deputy State Coroner was granted leave to abide the order of the Court and was excused from further attendance
SOLICITORS:	Fisher Dore Lawyers for the first applicant Jasper Fogerty Lawyers for the second applicant G R Cooper, Crown Solicitor for the Attorney-General