Commissioner of Police, New South Wales Police Force v Attorney General of New South Wales

[2025] NSWSC 1119

Supreme Court

New South Wales

Medium Neutral Citation:

Commissioner of Police, New South Wales Police Force v Attorney General of New South Wales [2025] NSWSC 1119

Hearing dates:

25 July 2025

Date of orders:

26 September 2025

Decision date:

26 September 2025

Jurisdiction:

Common Law - Administrative Law

Before:

McHugh JA

Decision:

The summons is dismissed.

Catchwords:

COURTS AND JUDGES — Judicial review — Coroners Court — Coroners Act 2009 (NSW), s 23 — Scope of coroner’s jurisdiction — Whether jurisdiction limited by common sense test of causation of death — Whether matters coroner indicated she would consider and decide could be characterised as “concerning the death”

Legislation Cited:

Coroners Act 1960 (NSW), ss 4, 11, 29

Coroners Act 1980 (NSW), ss 4, 13, 22A

Coroners Act 1985 (Vic) (as at 18 September 2009), ss 19, 59

Coroners Act1985 (Vic) (as at 9 March 1989), ss 19, 21

Coroners Act 1996 (WA) (as at 18 September 2009), ss 19, 22, 25, 52

Coroners Act 1997 (ACT) (as at 5 August 2005), ss 18, 52

Coroners Act 2009 (NSW), ss 3, 4, 10, 21, 23, 27, 49, 51, 78, 81, 82, 84, 85

Interpretation Act 1987 (NSW), s 34

Mental Health Act 2007 (NSW), s 22

Cases Cited:

Chief Commissioner of State Revenue v Uber Australia Pty Ltd [2025] NSWCA 172

Conway v Jerram [2011] NSWCA 319

Conway v Jerram (2010) 78 NSWLR 689; [2010] NSWSC 371

Decker v State Coroner of NSW (1999) 46 NSWLR 415; [1999] NSWSC 369

Harmsworth v State Coroner [1989] VR 989

Hurley v Clements [2010] 1 Qd R 215; [2009] QCA 167

Keown v Khan [1999] 1 VR 69

Lacey v Attorney-General (Qld) (2011) 242 CLR 573; [2011] HCA 10

March v E & MH Stramare Pty Ltd (1991) 171 CLR 506; [1991] HCA 12

Mirror Newspapers Ltd v Waller (1985) 1 NSWLR 1

Musumeci v Attorney General of New South Wales (2003) 57 NSWLR 193; [2003] NSWCA 77

R v Doogan; Ex parte Lucas-Smith (2005) 158 ACTR 1; [2005] ACTSC 74

RvKhazaal (2012) 246 CLR 601; [2012] HCA 26

Re State Coroner; Ex parte Minister for Health (2009) 38 WAR 553; [2009] WASCA 165

The Owners of the Ship “Shin Kobe Maru” v Empire Shipping Company Inc (1994) 181 CLR 404; [1994] HCA 54

WRB Transport v Chivell [1998] SASC 7002

X v Deputy State Coroner for New South Wales (2001) 51 NSWLR 312; [2001] NSWSC 46

Texts Cited:

Law Reform Commission, Report of the Law Reform Commission on the Coroners Act, 1960 (1975)

New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 20 February 1980

New South Wales Legislative Council, Parliamentary Debates (Hansard), 4 June 2009

NSW Law Reform Committee, The Law and Practice Relating to the Examination before Coroners or Committing Magistrates (1964)

P Herzfeld and T Prince, Interpretation (3rd ed, 2024, Lawbook Co)

Category:

Principal judgment

Parties:

Commissioner of Police, New South Wales Police Force (Plaintiff)
Attorney General of New South Wales (First Defendant)
State Coroner of New South Wales (Second Defendant, submitting appearance)
Vicki Shipley (Third Defendant)

Representation:

Counsel:
A Casselden SC; M Harker (Plaintiff)
D Kell SC; J Caldwell (First Defendant)
O Jones; L Dargan (Third Defendant)

Solicitors:
Office of the General Counsel, NSW Police Force (Plaintiff)
Crown Solicitor’s Office (First Defendant)
Aboriginal Legal Service (NSW/ACT) (Third Defendant)

File Number(s):

2025/00037767

Publication restriction:

Nil.

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 20 December 2022 Ms Tammy Shipley, an Aboriginal woman, died in custody in the Mum Shirl Unit of Silverwater Women’s Correctional Centre (SWCC). In those circumstances, s 23(1) of the Coroners Act 2009 (NSW) (the Act) confers jurisdiction on the State Coroner “to hold an inquest concerning the death”. Section 81(1)(c) of the Act confers power on the Coroner to make findings as to the “manner and cause of the person’s death”. Section 82(1) confers power to make “recommendations … in relation to any matter connected with the death”.

Ms Shipley had a history of mental health issues and drug use and had had many dealings with the NSW Police Force (NSWPF). On 9 December 2022, she was arrested for entering inclosed lands and shoplifting offences (the H76115633 offences). She was released with bail conditions, but later the same day was arrested a second time for similar offences and for breaching her bail conditions (the H91715522 offences). She was refused bail and was admitted into custody at Campbelltown Police Station. The custody management record (which was later sent to NSW Corrective Services (NSWCS)) indicated that she did not have a mental illness.

On 10 December 2022, after about 6 hours in NSWPF custody, Ms Shipley was transferred to Amber Laurel Correctional Centre where she was in the custody of NSWCS. On the same day, she appeared unrepresented before the Local Court and said that she did not want bail.

On 11 December 2022, Ms Shipley was transferred to SWCC where she displayed symptoms of psychosis. On 12 December 2022, she was deemed to be too mentally unwell to attend court.

On 14 December 2002, Ms Shipley appeared in the Local Court, again unrepresented, in relation to the H91715522 offences. The NSWPF facts sheet did not refer to Ms Shipley’s mental health or drug use history. The Magistrate finalised the H91715522 offences and advised Ms Shipley that she would need to return to court in relation to the H76115633 offences. The Magistrate stated “…as far as I’m concerned, that should mean you’ll be released.” However, contrary to the information on the NSWPF Criminal History Bail Report, which was located on the court file, Ms Shipley did not have bail on the charges for the H76115633 offences. She was not released.

Ms Shipley died at SWCC, ostensibly from complications arising from her mental illness, ten days after she had left the custody of NSWPF.

The plaintiff, the Commissioner of Police, NSWPF (the Commissioner) made an application to the Coroner asserting that she lacks jurisdiction to inquire into certain matters including the dealings Ms Shipley had with NSWPF prior to her death in the period between 9 and 14 December 2022. The Commissioner submitted that the jurisdiction conferred by s 23(1) is constrained by a principle of remoteness from the person’s death; that the test of remoteness was the March v E & MH Stramare Pty Ltd (1991) 171 CLR 506; [1991] HCA 12 test of common sense causation; and that applying that test, matters concerning the NSWPF were too remote from Ms Shipley’s death.

The Coroner refused the Commissioner’s application. By summons, the Commissioner sought judicial review.

McHugh JA held, dismissing the summons:

1. Within the limits of the s 23(1) jurisdiction, the scope of the inquest is a matter for the coroner. The conferral of jurisdiction carries with it a broad discretion to identify the specific issues to be pursued. However, the discretion must be exercised judicially and for the purpose of performing the coroner’s functions in holding an inquest: [38]-[40], [43]-[44].

   Conway v Jerram [2011] NSWCA 319, cited.

2. The s 23(1) jurisdiction includes the authority to decide the factual matters forming the basis of the s 81(1) findings or any ultimate s 82(1) recommendations. The coroner’s authority to decide also extends to issues that the coroner has identified in the proper exercise of discretion for the purpose of exercising the ss 81(1) or 82(1) powers: [45]-[48].

3. The Commissioner’s causal test of remoteness should not be accepted as the test of the limit of the s 23(1) jurisdiction. It is not required or justified by the text of the Act and is contrary to the Act’s purpose and legislative history. No authority requires the contrary conclusion: [51]-[120].

   Harmsworth v State Coroner [1989] VR 989; R v Doogan; Ex parte Lucas-Smith (2005) 158 ACTR 1; Re State Coroner; Ex parte Minister for Health (2009) 38 WAR 553; [2009] WASCA 165; Conway v Jerram (2010) 78 NSWLR 689; [2010] NSWSC 371; Conway v Jerram [2011] NSWCA 319, discussed.

   March v E & MH Stramare Pty Ltd (1991) 171 CLR 506; [1991] HCA 12, cited.

4. The words “an inquest concerning the death … of a person” in s 23(1) limit the jurisdiction conferred. They require a sufficient connection between the person’s death and the matters to be decided at the inquest. The connection may become so tenuous or remote that, to that extent, the inquest can no longer be fairly characterised as concerning the person’s death. The process of characterisation involves the application of common sense but does not involve a necessary test of causation: [121]-[122].

5. The matters which the Coroner has indicated that she proposes to pursue and decide in the course of the inquest bear a sufficiently close connection to Ms Shipley’s death that the inquest is fairly to be characterised as “concerning” her death. Those matters are within jurisdiction: [129]-[132].

JUDGMENT

1. On 20 December 2022 Ms Tammy Shipley, an Aboriginal woman, died in custody in the Mum Shirl Unit of Silverwater Women’s Correctional Centre (SWCC). In those circumstances, s 23(1) of the Coroners Act 2009 (NSW) (the Act or the NSW Act) confers jurisdiction on, relevantly, the State Coroner “to hold an inquest concerning the death” of Ms Shipley, and s 27(1)(b) requires that an inquest be held. The main issue on this well-argued application for judicial review is the criterion delimiting the outer boundary of the s 23(1) jurisdiction.

2. The plaintiff is the Commissioner of Police, NSW Police Force (the Commissioner). She contends that the State Coroner (the Coroner), who is the second defendant, lacks jurisdiction to inquire into certain matters including dealings Ms Shipley had with the New South Wales Police Force (NSWPF) prior to her death, in particular in the period between 9 and 14 December 2022.

3. The third defendant, Ms Vicki Shipley, is the mother and senior next of kin of Ms Tammy Shipley. Ms Vicki Shipley had been granted leave to appear at the inquest and made submissions to the Coroner. As a party in this Court she had the primary carriage of the argument resisting the relief sought in the summons.

4. The Attorney General of New South Wales was joined as the first defendant to the summons at a time when the only other defendant, the Coroner, had appropriately filed a submitting appearance save as to costs. The Attorney’s position is that he is not an interested party in, or otherwise involved with, the inquest, and does not advocate for a particular outcome in the judicial review application. However, the Attorney has not sought to be removed as a party as there are matters concerning the jurisdiction of the Coroners Court in respect of which the Attorney seeks to assist the Court. The Attorney’s submissions proceeded appropriately on that basis.

5. As the Commissioner’s challenge to jurisdiction fails, the summons must be dismissed.

Background

6. What follows is drawn from [10]-[51] of the Coroner’s carefully considered and comprehensive reasons for her decision given on 16 January 2025 (the Decision or D), which it is not necessary to repeat in full. The basic facts are largely uncontroversial, and there was no attempt to challenge the Coroner’s account of them on the summons in this Court. To the extent that any of these matters might be contested, I do not understand it to be disputed that there is sufficient reason to think that they might be established in the ordinary ways in the course of an inquest, which is enough for present purposes.

Ms Shipley’s mental health and her history of dealings with police

7. Ms Shipley, who was 47 years old, had a long history of mental health issues including admissions to hospitals. She had also had many dealings with the NSWPF, commencing in 1992 in relation to stealing and break and enter offences. Over the years she was charged with domestic related common assault, drug and shoplifting offences. Several of Ms Shipley’s offences were dealt with under mental health legislation which enabled the magistrate to divert matters away from the criminal justice system where a person was more appropriately dealt with in a mental health facility.

8. In 2016, Ms Shipley spent four months in custody for an offence of stalk/intimidate. During that time, the Justice Health and Forensic Mental Health Network (JHFMHN) noted her diagnoses of Schizoaffective Disorder and Bipolar Affective Disorder along with a history of cannabis, “Ice” and heroin use.

9. Over a period of approximately 25 years Ms Shipley also regularly came to the attention of the NSWPF as a victim of domestic violence.

10. Between January and November 2022, Ms Shipley came to the attention of NSWPF officers on four occasions. These included police detaining Ms Shipley under s 22 of the Mental Health Act 2007 (NSW) on 13 January 2022 and transporting her to Campbelltown Hospital Emergency Department where she was found to be “a mentally ill person”, and police voluntarily transporting Ms Shipley to Campbelltown Hospital Emergency Department after she presented to Macquarie Fields Police Station suffering hallucinations on 26 November 2022.

11. The details of what occurred between 9 and 14 December 2022 are important. The Coroner addressed those matters at D[12]-[20], which are reproduced in full below (omitting footnotes).

“12. On 9 December 2022:

a. Sometime in the morning, Ms Shipley attended Macquarie Fields Police Station and asked to be arrested as she claimed she had goods in custody.

b. At around 11:00am, Ms Shipley was arrested for enter inclosed lands and shoplifting offences at Target Glenquarie Centre. The goods stolen totalled $574 (‘H76115633 offences’). She was released with bail conditions ‘not to enter Glenquarie Shopping Centre’. The Facts Sheet for the charges stated: ‘Police not aware of any drug or mental health issues of the accused’.

c. In the afternoon, Ms Shipley re-attended Glenquarie Shopping Centre. She entered Woolworths and was again arrested for enter inclosed lands and shoplifting, as well as breach of bail on the offending from earlier that day. This time the goods stolen totalled $23.10 (‘H91715522 offences’). At the time of her arrest, when asked by NSWPF officers if she wanted to go to gaol Ms Shipley replied, ‘that would be nice’ and indicated to the arresting officers that she was going through a ‘detox’.

d. At 7:00pm, Ms Shipley was refused bail by an officer of the NSWPF and admitted into custody at Campbelltown Police Station. The custody management record (which was later sent by NSW Police to CSNSW and formed part of their records) indicates she did not have a mental illness, was not on medication and had no medical issues.

e. On 10 December 2022 at around 1:00am, after approximately six hours in NSWPF custody, Ms Shipley was transferred to Amber Laurel Correctional Centre (‘ALCC’). On the same day, she appeared before Parramatta Local Court. A transcript of the audio recording of those proceedings has been tendered in evidence and the aide memoire prepared for me (not challenged by any party) is Annexure A to this decision. It reveals that Ms Shipley told the Magistrate that she was representing herself and initially indicated that she was applying for bail. When the Magistrate indicated to the Sergeant appearing that she would ‘read the facts and records’ and the Sergeant stated that they would ‘hand those up’, Ms Shipley said: ‘Yeah no I don’t want bail’. Ms Shipley appeared in Court for a little over one minute and the learned Magistrate concluded by stating that: ‘In relation to the detention application I’ll simply mark it not challenged’.

13. It is apparent from the transcript that on 10 December 2022, there was no reference to Ms Shipley’s mental health history by the Court or prosecutor. The matter was stood over to Campbelltown on Monday 11 December 2022.

14. On 11 December 2022, Ms Shipley was transferred to Silverwater Women’s Correctional Centre (SWCC). That same day, she attempted to take her own life on two occasions and displayed symptoms of psychosis. Ms Shipley did not attend Court on that date.

15. On 12 December 2022, she was deemed by JHFMHN staff to be too mentally unwell to attend Court and a medical certificate for ‘non-attendance at Court’ was provided to the Court by JHFMHN.

16. On 13 December 2022, a remand warrant was issued for Ms Shipley to attend Campbelltown Local Court the following day in relation to the H91715522 offences.

17. The last date Ms Shipley appeared in any Court was 14 December 2022 and again a transcript of the audio recording of that appearance was prepared for me and circulated to the parties, and the aide memoire is attached to this decision at Annexure B. On that date:

a. Ms Shipley appeared before Campbelltown Local Court via audio-visual-link (‘AVL’). She was again unrepresented and entered a plea of guilty for the H91715522 offences.

b. The NSWPF Facts Sheet for the H91715522 offences located on the Court file did not refer to Ms Shipley’s mental health or drug use history.

c. The learned Magistrate fined Ms Shipley $100 for the enter inclosed lands offence and sentenced her to a Conditional Release Order for the shoplifting offence.

d. The H76115633 offences were not dealt with. The NSWPF Criminal History Bail Report printed at 8:37pm on 9 December 2022 and located on the Court file in relation to the H76115633 offences stated:

‘POLICE BAIL: BAIL CONDITIONAL

PLACE RESTRICTION

NOT TO ENTER THE GLENQUARIE SHOPPING CENTRE’ …;

and

‘NO BREACH BAIL ALTERNATIVES FOUND FOR CNI’

e. The Magistrate advised Ms Shipley she would need to return to Court in relation to the H76115633 offences in January 2023 and stated:

‘…as far as I’m concerned, that should mean you’ll be released’.

f. After her appearance, Ms Shipley reported to CSNSW staff at SWCC that she ‘got bail’ and would be going home. However, Ms Shipley was not released from custody as CSNSW Sentence Administration advised there were other charges pending to be heard in 2023 and she did not have bail on those.

18. It is clear that in fact, contrary to the information on the NSWPF Criminal History Bail Report printed at 8:37pm on 9 December 2022 and located on the Court file, as at 14 December Ms Shipley did not have bail on the charge numbered H76115633.

19. On 20 December 2022, 11 days after Ms Shipley was arrested by NSWPF officers and entered custody, she died in the MSU at SWCC, ostensibly from complications arising from her mental illness.

20. On 12 January 2023, Ms Shipley was convicted of the H76115633 offences and fined a total of $1,000, 23 days after her death.”

12. It should be noted that the Commissioner emphasises that Ms Shipley had been in the custody of New South Wales Corrective Services (NSWCS) from about 1 a.m. on 10 December 2022, after approximately six hours in NSWPF custody.

The Commissioner’s application challenging jurisdiction

13. The Coroner made preparations to hold the inquest concerning Ms Shipley’s death.

14. On 23 July 2024, the Crown Solicitor, assisting the Coroner, wrote to the Commissioner, stating that the Commissioner may have a sufficient interest in the subject matter of the inquest; identifying certain “issues emerging” that were relevant to the NSWPF; requesting certain policies or procedures of the NSWPF, including concerning engagement with persons who have a mental illness; and requesting a statement by a senior NSWPF officer. The Commissioner responded on 8 August 2024 that the Coroner had no jurisdiction to request the information sought or to conduct any inquiry in relation to the matters identified by the Coroner.

15. Correspondence ensued, and the identification by the Coroner of the issues which she proposed to consider in the course of the inquest (including the documents she sought), and by the Commissioner of the issues said to be beyond jurisdiction, evolved in ways that are not presently material.

16. On 3 September 2024, the Crown Solicitor’s Office received an application signed by the General Counsel, NSWPF (the Application). As recorded at D[29]:

“… The Application stated and sought the following:

1. That any examination or exploration by the State Coroner and/or Counsel Assisting into the appropriateness or otherwise of the NSW Police Force’s interactions with Ms Shipley including, but not limited to, her mental health, physical health, drug abuse, arrest, charging, bail determination and custody prior to her death is impermissible as it lacks jurisdictional power.

2. In respect of the letter to [the OGC] from the Crown Solicitor’s Office dated 16 August 2024:

a. the ‘request for policies and procedures’ be withdrawn on the basis that it is impermissible as it lacks jurisdictional power and a legitimate forensic purpose; and

b. the ‘request for a statement from a senior NSWPF officer’ addressing the nominated four areas be withdrawn on the basis that it is impermissible as it lacks jurisdictional power and a legitimate forensic purpose.

3. In respect of the letter of sufficient interest addressed to the Commissioner from the Crown Solicitor’s Office dated 23 July 2024:

a. the letter be withdrawn on the basis of a lack of jurisdictional power; and/or, alternatively

b. the issues said to be ‘emerging’, listed and numbered 1, 2, and 3 be removed from consideration in the Inquest on the basis of a lack of jurisdictional power; or, alternatively

c. the ‘Request for Policies’ be withdrawn on the basis that it lacks a legitimate forensic purpose and/or the State Coroner and/or Counsel Assisting lacks jurisdictional power to consider the nominated four areas; and

d. the ‘Request for Statement’ be withdrawn on the basis that it lacks a legitimate forensic purpose and/or the State Coroner and/or Counsel Assisting lacks jurisdictional power to consider the nominated four areas.”

17. On 12 September 2024, in written submissions as to jurisdiction, the Commissioner identified the orders that she submitted the Coroner should make (at D[32]):

“[50] The Court should order that:

[50.1] any investigation into:

i. the appropriateness of the NSW Police’s interactions with Ms Shipley;

ii. its institutional frameworks for dealing with persons suffering from mental illness; and

iii. any similar investigation into the NSW Police;

is excluded from the scope of the inquest into the death of Ms Tammy Michelle Shipley; and

[50.2] the request for documents and a witness statement made to the NSW Police on 16 August 2024 is withdrawn.”

18. The Coroner was unable to address the Application before the inquest was planned to commence on 16 September 2024. A regime was put in place to defer hearing the Application to the end of the inquest proceedings, which otherwise proceeded from 16 to 26 September 2024. After several rounds of written submissions, the Application was eventually heard on 17 October 2024.

19. On 16 January 2025 the Coroner dismissed the Application, saying at D[125] that she declined to make the orders sought by the Commissioner as set out at D[32].

20. As the arguments put to the Coroner are largely reflected in those advanced in this Court, it is unnecessary to address the way in which her Honour dealt with them in detail, save to note two matters.

21. First, it was common ground before the Coroner that the jurisdiction conferred by s 23(1) was limited by a principle of remoteness from the death of the person. The Commissioner submitted that the applicable test was the common sense test of causation as identified in March v E & MH Stramare Pty Ltd (1991) 171 CLR 506; [1991] HCA 12 (March v Stramare): at D[62]-[64]. In the application of that test, the Commissioner submitted that examination of the question whether Ms Shipley should have been in custody when she died would conflate a possible precondition to her death (i.e., satisfaction of the “but for” test) with the common sense test of causation (at D[65]), which the Commissioner submitted was not satisfied in the circumstances. That being so, examination of Ms Shipley’s interactions with the NSWPF would be beyond jurisdiction.

22. The Coroner did not accept the Commissioner’s submission. As her Honour said at D[57], s 81 of the Act requires findings as to the identity, date, place, manner and cause of the identified person’s death, and for those findings to be recorded in writing. As to the words “manner and cause of the person’s death” in s 81(1) of the Act, her Honour said that “manner of death” should not be too narrowly construed (at D[131]), and that in appropriate circumstances the exploration of the “manner” of death may go beyond exploration of causative matters: at D[134]. Her Honour accepted that the question was one of remoteness but said that it was not readily susceptible to definition: at D[131].

23. Her Honour also accepted the submission made by counsel assisting that it was within “a common sense test” and not beyond the scope of her jurisdiction to look at the circumstances in which Ms Shipley came to be in custody: at D[137].

24. Her Honour then said the following (footnotes omitted):

“138. On 20 December 2022, 11 days after Ms Shipley was arrested by NSWPF officers and entered custody, she died in the MSU at SWCC, ostensibly from complications arising from her mental illness. The institution of the NSWPF had information about Ms Shipley’s history of mental illness, including her recent mental ill health, and had recorded that information, although, for reasons I wish to inquire into, that may not have been known to the relevant officers who were involved in dealings with her on 9, 10 and 14 December 2022.

139. I am satisfied that an examination of the events that led to Ms Shipley’s arrest and imprisonment in December 2022, including her likely mental health condition at the time and examination of the appropriateness or otherwise of the NSWPF’s interactions with Ms Shipley (including on 9, 10 and 14 December) is within permissible scope of this inquest and as such within jurisdiction.

…

141. I accept that the interaction between members of the NSWPF concerning Ms Shipley are within my jurisdiction. Specifically, I accept that there are legitimate lines of inquiry in relation to:

a. First, with respect to the interaction between members of the NSWPF and Ms Shipley on 9 December 2022 when Ms Shipley came into custody. Although it is understandable that NSWPF officers dealing with her did not immediately recognise that she was mentally ill or mentally disordered, it is not clear to me why the custody records were marked as if she had no history of mental illness when the NSWPF as an institution had numerous and recent dealings with Ms Shipley where she was mentally ill, and her history of mental illness was well documented on NSWPF records.

b. Second, on 10 December 2022 when a police prosecutor appeared to assist the bail Court, the records handed to the Court by the police prosecutor do not refer to Ms Shipley’s mental health issues and there is no mention of that important fact in Court. Ms Shipley appeared in Court unrepresented and declined to apply for bail, in circumstances where she may have been too mentally ill to make any informed decision in relation to representing herself or applying for bail. I note that she was not bought before the Court on 11 December 2022 and received a medical certificate deeming her to be too mentally unfit to attend court on 12 December 2022.

c. Third, on 14 December 2022, Ms Shipley was again before the Court. Again, she represented herself and so did not have any advocate there to assist her, or to assist the Court on her behalf. An audio recording of her Court appearance reveals that Ms Shipley was able to inform the Court about some aspects of her mental ill health. The NSWPF Criminal History Bail Report stated that Ms Shipley had conditional bail on another matter (H76115633). The Magistrate then sentenced Ms Shipley for the offence before him and determined that as far as he was concerned, she would be released from custody, but his Honour did not know, and was not informed by the police prosecutor, that Ms Shipley no longer had bail on the offence under H76115633, a minor shoplifting charge. Contrary to the apparent intentions of the Magistrate presiding on 14 December 2022, Ms Shipley was further detained and died in custody 6 days later in circumstances where (according [to] the expert panel of psychiatrists) she could not get adequate treatment for her mental health condition and died as a result of it.

142. I also accept that there are matters related to the circumstances in which Ms Shipley came to be in custody that may be the subject of recommendations aimed at preventing the loss of life of others in a similar situation. Tragically, deaths in custody are all too common in the Coroners Court in this State, and Aboriginal people in particular continue to be overrepresented in the numbers of deaths. They are not just numbers to the families of loved ones grieving deeply for their loss and striving to understand if there are lessons to be learnt that might save other families from experiencing that grief. As Counsel Assisting said in her opening of this inquest:

‘[W]e recognise that this inquest is one of too many where the Coroner is tasked with investigating the death of an Aboriginal person in custody. Thirty years on from the Royal Commission into Aboriginal Deaths in Custody, Aboriginal people are still massively over-represented in prisons in New South Wales and around the country. And we know that it is a source of pain for [Ms Shipley]’s family and to many other Australians. It is important to understand why [Ms Shipley] was in custody …’”

25. Secondly, addressing a submission made on behalf of the Commissioner distinguishing an “investigatory stage” from the “curial phase”, her Honour said at D[146]: “it is the very nature of an inquiry that some issues emerge as the inquest/inquiry takes place.” Her Honour went on to say (footnotes omitted):

“149. … this case is an excellent example of the way in which some matters crystallise during the course of an inquest, while others assume less significance. It became increasingly evident to me that there may be real systems issues revealed by Ms Shipley’s appearances at Court on both 10 and 14 December 2022.

150. A review of the custodial records shows that Ms Shipley was extremely mentally unwell when she left NSWPF custody and entered into the custody of CSNSW on 9 December 2022, and she remained mentally unwell until her death 11 days later. Yet on 10 December 2022, a day after she was taken into police custody, she appeared in the bail court unrepresented in circumstances where it is [sic] appears on the face of the transcript that the Magistrate was not informed of her mental health issues. The police prosecutor present makes no mention of her mental health issues. On 14 December 2022, Ms Shipley herself told the Magistrate of some of her mental health troubles and he sentenced her in a way that he said would allow her to leave custody. It is obvious from the face of the record that his Honour believed she had bail on another minor shoplifting charge and could be released. Again, Ms Shipley was not legally represented by someone who could advocate on her behalf.

151. As Counsel Assisting has repeatedly sought to emphasise, inquests are not adversarial and the inquiries directed to the NSWPF are not aimed at criticising its members, but rather at identifying opportunities to improve the care of persons who come into the custody of the NSWPF or CSNSW.”

26. It should be noted that the Commissioner identified the matters which she said were beyond the Coroner’s jurisdiction in different terms at different times (to some extent reflecting developments in the focus of the Coroner’s attention). They included the matters referred to at par 1 of the Application and at par 50.1 of the Commissioner’s submissions quoted at D[32]. I also understood them to include, in this Court, the matters referred to at D[138]-[142] and D[150]. I have not found it necessary for present purposes to do more than to describe all of those matters as the Contested Issues.

The Commissioner’s summons seeking judicial review

27. The Commissioner filed a summons seeking judicial review of the Decision. Some of the grounds identified and the relief sought in the summons were not pressed. The Commissioner’s ultimate position was that the Decision should be set aside and remitted to the Coroner for reconsideration according to law. The Commissioner relied on the following grounds:

“1 The Second Defendant has no power as part of the inquest into the death of Ms Tammy Michelle Shipley to inquire into, and make findings or recommendations in respect of:

a. the appropriateness of the NSW Police Force’s interactions with Ms Shipley, including the conduct of NSW Police Prosecutors; and

b. the NSW Police Force’s institutional frameworks for dealing with persons suffering from mental illness;

in circumstances where each is too remote from the death of Ms Shipley 11 days after she entered custody under the care of NSW Corrective Services.

2 The Second Defendant, in determining the scope of the inquest to include the matters in Grounds 1(a) and (b), failed to apply a common sense test of causation, and in so doing applied the wrong test of jurisdiction.

…

4 The Second Defendant, in determining the scope of the inquest, misconstrued ‘manner of death’ in the Coroners Act 2009 to include the circumstances in which Ms Shipley came to be in custody, as opposed to the means, or alternatively, the circumstances, of Ms Shipley’s death.”

28. It was clear from the way in which the Commissioner put her argument that the test of what was “too remote from the death of Ms Shipley” (and thus the correct “test of jurisdiction”) for the purposes of Ground 1 was asserted to be the “common sense test of causation” referred to in Ground 2. It was also clear that the point of statutory construction raised in Ground 4 concerned the words “the manner and cause of the person’s death” in s 81(1)(c), and that that point was made in support of the asserted test identified in Ground 2.

29. The Commissioner proceeded on the footing that the success or failure of the summons turned ultimately on the test of remoteness. That is, that it was necessary to show that the Coroner had applied the wrong test in order to show a legal error constituting jurisdictional error.

Meaning of “jurisdiction” in s 23(1)

30. The Commissioner’s grounds of review use the terms “power” and “jurisdiction” without distinguishing between them; cf. Lacey v Attorney-General (Qld) (2011) 242 CLR 573; [2011] HCA 10 at [48] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ. It is convenient to say something at the outset about the meaning of the word “jurisdiction” in the context of coronial proceedings, and to identify some matters that must be within jurisdiction, before turning to consider whether the Commissioner’s causal test of remoteness correctly identifies the outer limit of the jurisdiction conferred.

31. The conferral of coronial jurisdiction should be understood in light of the close connection between the coroner’s investigative functions and the inquisitorial aspects of an inquest. Section 10(1) of the Act relevantly provides:

10   Functions of State Coroner and Deputy State Coroners

(1) The functions of the State Coroner are—

…

(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

…

32. The investigative aspect of the coronial function is supported by s 51(2), which provides: “A coroner may give a police officer directions concerning investigations to be carried out for the purposes of coronial proceedings or proposed coronial proceedings.”

33. In this case s 23(1) of the Act confers jurisdiction on the Coroner “to hold an inquest” into Ms Shipley’s death as follows:

23   Jurisdiction concerning deaths in custody or as a result of police operations

(1)  A senior coroner has jurisdiction to hold an inquest concerning the death or suspected death of a person if it appears to the coroner that the person has died (or that there is reasonable cause to suspect that the person has died)—

(a)  while in the custody of a police officer or in other lawful custody, or

(b)  while escaping, or attempting to escape, from the custody of a police officer or other lawful custody, or

(c)  as a result of police operations, or

(d)  while in, or temporarily absent from, any of the following institutions or places of which the person was an inmate—

(i)  a detention centre within the meaning of the Children (Detention Centres) Act 1987,

(ii)  a correctional centre within the meaning of the Crimes (Administration of Sentences) Act 1999,

(iii)  a lock-up, or

(e)  while proceeding to an institution or place referred to in paragraph (d), for the purpose of being admitted as an inmate of the institution or place and while in the company of a police officer or other official charged with the person’s care or custody.

(2)  In this section—

police operation means any activity engaged in by a police officer while exercising the functions of police officer other than an activity for the purpose of a search and rescue operation.

34. The extent of the conferral of jurisdiction is thus a question of construction of the words, “has jurisdiction to hold an inquest concerning the death … of a person”. Those words confer authority to perform the functions of a coroner holding such an inquest. For example, even in the absence of further provision in the Act, those functions would include receiving evidence for the purpose of the inquest.

35. The Commissioner’s Ground 1 asserts that the Coroner has “no power [i.e., no authority] … to inquire into, and make findings or recommendations in respect of” various subject matters. As will be seen, Ground 1 raises the extent of the Coroner’s authority to perform two distinct but closely related functions of a coroner “hold[ing] an inquest”: identifying the particular issues to be decided, and deciding the issues so identified.

36. The latter function accords with the primary legal meaning of the word “jurisdiction” when used in connection with a court: “authority to decide”. In the context of adversarial proceedings litigated in a court, jurisdiction is the authority to decide some controversy between the parties, who will in some way have identified the issues to be decided.

37. By contrast, while the Coroners Court is an inferior court of record (Mirror Newspapers Ltd v Waller (1985) 1 NSWLR 1 at 6 per Hunt J; Decker v State Coroner of NSW (1999) 46 NSWLR 415; [1999] NSWSC 369 at [6] per Adams J), the juristic nature of an inquest is not merely adversarial, and there are no parties. As was said in Musumeci v Attorney General of New South Wales (2003) 57 NSWLR 193; [2003] NSWCA 77 at [33] per Ipp JA (Beazley JA agreeing), an inquest is a hybrid process containing both adversarial and inquisitorial elements. Coroners nevertheless exercise judicial power, notwithstanding the executive nature of their functions, and the proceedings in the Coroners Court involve the administration of justice.

38. In the absence of issues defined by parties, and given the hybrid inquisitorial aspect of an inquest, one of the functions of a coroner holding an inquest is to identify the specific issues to be pursued (that is, the matters to be the subject of evidence and submissions and then decided). It was thus not disputed in this case that, within the limits of the coroner’s “jurisdiction to hold an inquest concerning the death … of a person”, the scope of the inquest is a matter for the coroner: Conway v Jerram [2011] NSWCA 319 (Conway CA) at [48] per Young JA. That is to say, subject to any express provision (such as the requirement to make the findings in s 81(1) discussed below, or the exclusion of certain matters by s 78), the conferral of “jurisdiction to hold an inquest” carries with it a broad discretion to identify the specific issues to be pursued at the inquest. Those issues may evolve as the investigation and the inquest itself proceed.

39. Relevantly for present purposes, the words “jurisdiction to hold an inquest” in s 23(1) thus mean not only the authority to decide matters arising at an inquest, but also the authority to determine, within the limits of the s 23(1) jurisdiction, which particular issues are to be decided.

34. However, the latter aspect of the coroner’s authority is not free-standing. Although the coroner’s discretion as to the scope of the inquest is broad, the discretion must be exercised judicially and for the purpose for which the discretion is conferred. As to the first point, among other things, the discretion cannot be exercised arbitrarily or capriciously. As to the second point, the coroner’s discretion to identify the particular issues to be pursued and decided at an inquest is incidental to performing the coroner’s functions (that is, exercising the coroner’s powers or performing the coroner’s duties) in holding an inquest. The coroner’s discretion to identify issues to pursue must be exercised for that purpose.

35. Two powers which the Act confers on a coroner were central to the argument on the summons about the outer limits of a coroner’s jurisdiction to hold an inquest concerning the death of a person. Sections 81 and 82 relevantly provide as follows.

81 Findings of coroner or jury verdict to be recorded

(1)    The coroner holding an inquest concerning the death or suspected death of a person must, at its conclusion or on its suspension, record in writing the coroner’s findings or, if there is a jury, the jury’s verdict, as to whether the person died and, if so—

(a)    the person’s identity, and

(b)    the date and place of the person’s death, and

(c)    in the case of an inquest that is being concluded—the manner and cause of the person’s death.

…

82 Coroner or jury may make recommendations

(1)    A coroner (whether or not there is a jury) or a jury may make such recommendations as the coroner or jury considers necessary or desirable to make in relation to any matter connected with the death, suspected death, fire or explosion with which an inquest or inquiry is concerned.

(2)    Without limiting subsection (1), the following are matters that can be the subject of a recommendation—

(a)    public health and safety,

(b)    that a matter be investigated or reviewed by a specified person or body.

(3) The record made under section 81 is to include any recommendations made by the coroner or jury. The record must not indicate or in any way suggest that an offence has been committed by any person.

(4)    The coroner is to ensure that a copy of a record that includes recommendations made under this section is provided, as soon as is reasonably practicable, to—

(a)    the State Coroner (unless the coroner is the State Coroner), and

(b)    any person or body to which a recommendation included in the record is directed, and

(c)    the Minister, and

(d)    any other Minister (if any) that administers legislation, or who is responsible for the person or body, to which a recommendation in the record relates.

42. It should be noted that the coroner “must” (i.e., has a duty to) exercise the power to make “findings … as to” the matters identified in s 81(1) (including as to “the manner and cause of the person’s death”). By contrast, s 82(1) confers a discretionary power to make recommendations “in relation to any matter connected with the death”. The potential width of the subject matters these provisions contemplate is discussed below.

43. For immediate purposes, it is important that ss 81(1) and 82(1) do no more than identify the object in view: to make findings in various categories or to make recommendations. As discussed above, within the limits of the s 23(1) jurisdiction, it falls to the coroner to identify the particular issues to be decided at the inquest for the purpose of exercising such powers. For example, the coroner has a discretion to identify the lines of enquiry to pursue, any competing hypotheses to consider, and any questions of primary fact to resolve with respect to the physiological “cause of the person’s death” in s 81(1)(c).

44. However, as noted above, the discretion to identify issues to pursue must be exercised judicially and only for the purpose of performing the coroner’s functions in holding the inquest. Again taking s 81(1)(c) as an example, one of the coroner’s powers is to make findings as to the “manner and cause of the person’s death”. Thus, where a mountaineer’s rope breaks and she falls to her death, it would plainly be for the purpose of exercising the s 81(1)(c) power for the coroner to identify as issues to pursue at the inquest the rated breaking strain of the climber’s rope, the conditions in which it had been kept and whether it had been tampered with. The same might not be true where the climber died of cardiac arrest before commencing her ascent.

45. It must follow from the conferral of the s 81(1) power — and I did not understand this to be disputed — that the s 23(1) conferral of “jurisdiction to hold an inquest” extends at least to authority to decide the factual matters forming the basis of the ultimate findings required by s 81(1). It must equally follow from the conferral of the s 82(1) power that the “jurisdiction to hold an inquest” also extends to authority to decide the factual matters forming the basis of any ultimate s 82(1) recommendation.

46. Moreover, within the limits of the jurisdiction to hold an inquest that s 23(1) confers on a coroner, the coroner’s authority to decide extends to issues that the coroner has identified in the proper exercise of discretion for the purpose of exercising the ss 81(1) or 82(1) powers.

47. For example, in light of a coronial investigation, the coroner might have identified several possible pathological processes as the potential “cause of the person’s death” for the purposes of s 81(1)(c). It might be necessary to consider a complex of expert medical evidence to decide which pathological process was the cause of death. The conferral of jurisdiction to hold an inquest in which the coroner is to decide the cause of death includes the authority to consider and make a decision upon the whole complex of evidence. Put another way, the conferral of jurisdiction authorising the coroner to decide that X was the cause of death necessarily confers authority to decide, as part of a process of reasoning by elimination, that Y and Z, two competing hypotheses, were not the cause of death.

48. Similarly, within the limits of the s 23(1) jurisdiction, the coroner has discretion to identify factual issues to be pursued and decided at an inquest for the purpose of exercising the discretion whether to make a s 82(1) recommendation. No doubt there may be a substantial overlap between the issues to be decided for the purpose of making s 81(1) findings (in particular, as to the “manner and cause of the person’s death”) and those to be decided for the purpose of making a s 82(1) recommendation “in relation to any matter connected with the death”. But the latter may extend to at least some matters beyond the former, particularly where the recommendation is directed to systemic issues (as to which, see further below). For example, new hospital procedures adopted after a person’s death might not themselves be within the “manner and cause” of death, but the fact and extent of the new procedures might well be relevant to whether or not to make a s 82(1) recommendation. Again, the jurisdiction s 23(1) confers to hold an inquest in which the coroner is given a discretion to make such recommendations includes the authority to decide factual matters that the coroner has properly identified as relevant to exercising the s 82(1) discretion.

49. As noted above, the Commissioner’s grounds of review use the terms “power” and “jurisdiction” interchangeably. It was, however, made clear that all three grounds are directed to establishing that, applying the Commissioner’s test of remoteness, the Contested Issues fall outside the limits of the Coroner’s jurisdiction conferred by s 23(1). The grounds are not directed to the availability or exercise of specific powers. Thus, although the Application had sought that the Coroner withdraw, e.g., the request for a statement, it was made clear that if, contrary to the Commissioner’s position, the Coroner had jurisdiction to pursue and decide the Contested Issues, the Commissioner did not suggest that the Coroner lacked power to make the request. (Such power was said to arise either by implication from the conferral of functions on the Coroner under s 10 of the Act, or pursuant to the directions power in s 49(1); it is unnecessary to decide.)

Consideration

50. The effect of the Commissioner’s Ground 1 is to assert that the Coroner has exceeded (or is proposing to exceed) her jurisdiction by pursuing and deciding issues said to be “too remote from the death of Ms Shipley”, namely, (a) the appropriateness of the NSWPF’s interactions with Ms Shipley and (b) the NSWPF’s institutional frameworks for dealing with persons suffering from mental illness. Read together, Grounds 2 and 4 assert that for this purpose the test of jurisdiction is what, as a matter of common sense, caused Ms Shipley’s death.

Grounds 2 and 4

51. It is convenient to address Grounds 2 and 4 before considering Ground 1. I have concluded that the Commissioner’s test of the outer limit of the coroner’s jurisdiction should not be accepted. It is not required or justified by the text of the Act and it is contrary to the Act’s purpose. It is convenient to address the Commissioner’s arguments by reference to the issues discussed below.

The statute

52. The scope of the authority to pursue and decide issues which s 23(1) confers on the coroner is a question of statutory construction. The starting and ending points are the text, read in context. It is appropriate to begin with the statute, before turning to the legislative history and the secondary materials. As no party ultimately suggested that any binding authority determined the particular question before the Court arising under the Act, discussion of the authorities on which the Commissioner relies, most of which concern other statutory regimes, may largely be deferred until after consideration of the terms of the statute.

53. The words of conferral in s 23(1) are “has jurisdiction to hold an inquest concerning the death or suspected death of a person”. The word “concerning” identifies a relationship between two subject matters. As with other relational terms, it is capable of capturing a potentially broad range of matters: see P Herzfeld and T Prince, Interpretation (3^rd ed, 2024, Lawbook Co) at [4.420]. “Concerning” may be apt to describe a more direct relationship, and therefore to capture a narrower class of matters than, for example, “relating to”. A synonym for “concerning”, and one which is not inapposite in this context, is “about”. However, the word must ultimately take its legal meaning from its context including the scope and object of the provision and the purpose it serves. The nature and closeness of the required relationship will generally depend on that context, including the purpose for which the relationship is being identified: cf. Chief Commissioner of State Revenue v Uber Australia Pty Ltd [2025] NSWCA 172 at [88] (relational term “under”). Moreover, as was pointed out in that case at [105], by reference to what French CJ said in R v Khazaal (2012) 246 CLR 601; [2012] HCA 26 at [31], “[g]enerally speaking it is not desirable, in construing relational terms, to go further than is necessary to determine their application in a particular case or class of cases. A more comprehensive approach may be confounded by subsequent cases.”

54. The definition of “inquest” in s 4(1) uses the same language as s 23(1): “inquest means an inquest concerning the death or suspected death of a person”. As a matter of text (as opposed to legislative history — see below) the definition takes the interpretation of the words “an inquest concerning” no further.

55. Section 23 itself gives no indication of the outer limits of the conferral, although the circumstances listed in paras (1)(a)-(e) suggest that the coroner’s authority to decide extends to matters in some way relating to those circumstances. It might be noted that other than s 23(1)(c) (“as a result of police operations”), none of the circumstances identified in s 23(1) requires even a reasonable suspicion of any causal connection between those circumstances and the death.

56. As noted above, by s 27(1), “An inquest concerning the death or suspected death of a person is required to be held in any of the following circumstances— … (b) if the jurisdiction to hold the inquest arises under section 23”. That provision repeats the language of “an inquest concerning” and, to that extent, takes the matter no further. But by requiring that an inquest be held when the jurisdiction arises under s 23(1), s 27(1) emphasises the significance of the circumstances in which the s 23 jurisdiction arises, being those in s 23(1)(a)-(e).

57. The general conferral of jurisdiction in s 21(1) of the Act again uses the same language (“has jurisdiction to hold an inquest concerning the death or suspected death of a person”) and takes the matter no further:

21   Inquests concerning deaths or suspected deaths

(1)  A coroner has jurisdiction to hold an inquest concerning the death or suspected death of a person if it appears to the coroner that—

(a)  the person’s death is (or there is reasonable cause to suspect that the person’s death is) a reportable death, or

(b)  a medical practitioner has not given (or there is reasonable cause to suspect that a medical practitioner has not given) a certificate as to the cause of death.

…

58. However, s 3 of the Act includes the following:

3 Objects of Act

The objects of this Act are as follows—

…

(c) to enable 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,

…

(e) to enable coroners to make recommendations in relation to matters in connection with an inquest or inquiry (including recommendations concerning public health and safety and the investigation or review of matters by persons or bodies),

… .

59. Four points should be noted. First, there is nothing in the language of s 3 suggesting that the object in par (e) is subordinate to or constrained by the object in par (c). Secondly, both objects are capable of informing the purpose of the conferral of jurisdiction to hold an inquest, which is part of the context relevant to construing the word “concerning” in s 23(1). Thirdly, the objects in s 3(c) and (e) foreshadow the powers conferred by ss 81(1) and 82(1), which are relevantly set out above. Fourthly, the words used are “recommendations in relation to matters in connection with an inquest”, which are arguably wider than the words in s 82(1) itself: “recommendations … in relation to any matter connected with the death”.

60. It was submitted on behalf of the Attorney General, and not disputed, that ss 81(1) and 82(1) both confer powers on the coroner, one difference being that a coroner “must” exercise the power in s 81(1), whereas a coroner has a discretion whether to exercise the power in s 82(1).

61. As explained above, the jurisdiction conferred by s 23(1) must extend at least to authority to decide factual matters forming the basis of the ultimate findings in s 81(1); the factual basis and the content of any s 82(1) recommendations; and any issues properly identified by the coroner for the purpose of exercising the power to make the ultimate s 81(1) findings or the discretion to make any s 82(1) recommendation.

62. The question in the present case is whether, as the Commissioner contends, the jurisdiction which s 23(1) confers on the coroner is constrained by a principle of remoteness, such that the coroner has no authority to enquire into and make findings or recommendations in respect of a matter unless there is (or might be), as a matter of common sense, a causal connection between the matter and the death.

63. The Commissioner’s argument focused on s 81(1)(c), which requires a finding as to “the manner and cause of the person’s death”. It was common ground that the word “cause” here means the physiological cause of death. Although different views might be held about whether the words “manner and cause” address two different concepts, or instead function as a composite phrase, it was not in dispute that these words extend beyond the physiological cause of death. Senior Counsel for the Commissioner acknowledged that these words have been construed to mean the circumstances surrounding the death. For example, in Conway v Jerram (2010) 78 NSWLR 689; [2010] NSWSC 371 at [52] (Conway SC), Barr AJ concluded that the phrase “manner of death” should be given “a broad construction so as to enable the coroner to consider by what means and in what circumstances the death occurred”. To the extent that Ground 4 contends for a narrower construction of the words “the manner and cause of the person’s death”, it must be rejected.

64. It may be noted that the circumstances surrounding a death are not confined to those which, as a matter of common sense, cause it. Let it be assumed that an elderly inmate, “temporarily absent from … a correctional centre” within the meaning of s 23(1)(d)(ii), dies of heart failure in a hospital. If the patient had been receiving the highest possible standard of medical care, the care provided could not sensibly be described as causing the death, as a matter of common sense. But the high standard of care provided would be a circumstance about which the coroner could make a s 81(1) finding as to the “manner” (or “manner and cause”) of death. The very fact that the medical care was not causative of the death might be a significant matter.

65. Since s 81(1)(c) itself is not limited to circumstances that are causal, it does not support the Commissioner’s causal test of the limit of jurisdiction. Nor do the other paragraphs of s 81(1). For example, where unidentified human remains are found, the matters that it may be necessary or appropriate to consider for the purpose of making a finding as to “the person’s identity” are potentially wide-ranging, and may have nothing to do with the cause of death. Similarly, where the inquest concerns the “suspected death of a person”, the matters relevant to determining “the date and place of the person’s death” may or may not bear a relationship to the cause of death.

66. The scope of the power to make recommendations in s 82(1) is also contrary to the Commissioner’s causational test of the limit of the jurisdiction conferred by s 23(1). The Commissioner submitted that the power in s 81(1) identifies the coroner’s primary functions at an inquest (to make certain findings), to which the function of making a s 82(1) recommendation is secondary or ancillary. It may be accepted that the s 81(1) functions are “primary”, in the sense that that description follows from the fact that s 81(1) is mandatory while s 82(1) is discretionary. But that description does not assist when considering the significance of s 82(1) for the purposes of construing the scope of the conferral of jurisdiction in s 23(1). Section 82(1) confers a power which is not in terms confined by the functions conferred by s 81(1). To the extent that the Commissioner submits that s 82(1) does not add to the analysis when construing the scope of the conferral of jurisdiction in s 23(1), the submission should be rejected. The oft-quoted statement in The Owners of the Ship “Shin Kobe Maru” v Empire Shipping Company Inc (1994) 181 CLR 404 at 421; [1994] HCA 54 bears repeating (footnotes omitted):

“It is quite inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words.”

67. Far from suggesting that s 82(1) is confined by reference to s 81(1), the language used in s 82(1) is “may make such recommendations as the coroner or jury considers necessary or desirable to make in relation to any matter connected with the death … with which an inquest or inquiry is concerned”.

1. “that the matters under investigation be concerned with or relevant to the assessment of the circumstances of the death”; or

2. “that the matter under investigation may potentially be characterised as part of the circumstances of the death”.

125. He said that the words “matters under investigation” were directed to capturing, in the present case, the actions of the police: at 28.32. Those words could be understood more generally to mean any factual question that a coroner was pursuing or proposing to decide.

126. Neither formulation finds a direct footing in the text of s 23(1) itself. Both refer to “the circumstances of the death”, which is not the statutory language, but rather a product of the interpretation of, in particular, s 81(1)(c). Also, although Mr Jones submitted that the two formulations were of similar effect, that may not necessarily be so. The second formulation (“part of the circumstances of the death”) goes to the process of fact-finding for the purpose of s 81(1)(c). Depending on the meaning of “assessment”, the first formulation (“relevant to the assessment of the circumstances of the death”) might go either to that same process of fact-finding for the purpose of s 81(1)(c), or perhaps to the question whether to make a recommendation for the purpose of s 82(1).

127. Nevertheless, it suffices for present purposes to say that to the extent that a factual matter came within either formulation, the inquest would most likely be fairly characterised as “concerning the death … of [the] person”, and so the particular matter would be within the coroner’s authority to decide. But the converse is not necessarily so. In other words, I do not consider either formulation to be a test of remoteness which, if not satisfied with respect to a particular issue, would necessarily result in the coroner’s lacking authority to decide the issue.

This case: Ground 1

128. Ground 1 in the summons is:

“The Second Defendant has no power as part of the inquest into the death of Ms Tammy Michelle Shipley to inquire into, and make findings or recommendations in respect of:

a. the appropriateness of the NSW Police Force’s interactions with Ms Shipley, including the conduct of NSW Police Prosecutors; and

b. the NSW Police Force’s institutional frameworks for dealing with persons suffering from mental illness;

in circumstances where each is too remote from the death of Ms Shipley 11 days after she entered custody under the care of NSW Corrective Services.”

129. The matters which the Coroner has indicated that she proposes to pursue and decide in the course of the inquest, referred to at D[138]-[142] and D[150], bear a sufficiently close connection to Ms Shipley’s death that the inquest would be fairly characterised as “concerning” her death. Those matters are within jurisdiction.

130. The mandatory s 81(1) findings include “the manner and cause of” Ms Shipley’s death. That extends to the circumstances surrounding her death. The Coroner said at D[150] that it appears that “Ms Shipley was extremely mentally unwell when she left NSWPF custody and entered into the custody of CSNSW on 9 December 2022, and she remained mentally unwell until her death 11 days later.” Her Honour said at D[138] that Ms Shipley “died in the MSU at SWCC, ostensibly from complications arising from her mental illness”. The Coroner also said at D[141(c)] that that occurred “in circumstances where (according [to] the expert panel of psychiatrists) she could not get adequate treatment for her mental health condition and died as a result of it.”

131. In light of those matters, the fact that Ms Shipley was in custody when she died is undoubtedly one of the circumstances surrounding her death. The circumstances in which Ms Shipley came to be, and to remain, in custody while mentally unwell in the days preceding her death, although approaching the limit of the matters that are within the Coroner’s s 23(1) authority to decide, bear a sufficient relation to her death that an inquest pursuing lines of enquiry into those circumstances in the limited manner the Coroner proposes is fairly to be characterised as an inquest concerning Ms Shipley’s death. The pursuit of the lines of enquiry referred to at D[138]-[142] and [150] would not be arbitrary or capricious. Nor is there a basis to conclude that the Coroner proposes to pursue those matters for a purpose other than the purpose of performing the Coroner’s functions in holding an inquest (such as exercising the s 81(1)(c) power to make findings as to the manner and cause of Ms Shipley’s death or the s 82(1) power to make a recommendation in relation to a matter connected with her death). Nor would pursuit of those matters in the limited manner the Coroner proposes otherwise mean that the inquest was not fairly characterised as “concerning” Ms Shipley’s death. The jurisdiction conferred on the Coroner by s 23(1) extends to authority to decide matters emerging from those lines of enquiry.

132. Ground 1(b) in the summons is to the effect that “the NSW Police Force’s institutional frameworks for dealing with persons suffering from mental illness” are beyond the Coroner’s jurisdiction. Expressed at that level of generality, the Commissioner’s contention has some force. If the Coroner were proposing a general investigation of that subject, untethered from the circumstances of Ms Shipley’s death, the inquest would cease to be one “concerning” her death. The same might be true of a general investigation, unlimited as to period or as to connection with her death, into “the NSW Police Force’s interactions with Ms Shipley” (Ground 1(a)). But I do not understand the Coroner to be proposing any such general investigations. Instead, I understand the Coroner to be proposing to examine the NSWPF’s dealings with Ms Shipley (including how she came to be and to remain in custody notwithstanding being mentally unwell) in the period 9 to 14 December 2022, and certain “policies or procedures” of the NSWPF insofar as they might have been specifically relevant to those dealings. Those matters are not so remote from Ms Shipley’s death as to exceed the Coroner’s jurisdiction. The inquest is still one “concerning” her death.

133. It follows that Ground 1 is also not made out.

Orders

134. In accordance with an agreement reached among the active parties, there should be no order as to costs.

135. None of the three grounds pressed in the summons is made out. The order of the Court is:

1. The summons is dismissed.

**********

Decision last updated: 26 September 2025