Commissioner of Police v No Respondent; Commissioner of Police v Coroners Court of South Australia
[2020] SASCFC 64
•1 July 2020
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Application for Judicial Review)
COMMISSIONER OF POLICE & ANOR v NO RESPONDENT; COMMISSIONER OF POLICE & ANOR v CORONERS COURT OF SOUTH AUSTRALIA
[2020] SASCFC 64
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Parker and The Honourable Justice Hughes)
1 July 2020
MAGISTRATES - CORONERS - INQUESTS AND INQUIRIES - OTHER MATTERS
MAGISTRATES - CORONERS - CORONERS, CORONIAL OFFICERS AND CORONER'S COURT - POWERS, DUTIES AND FUNCTIONS GENERALLY
ADMINISTRATIVE LAW - JUDICIAL REVIEW - REVIEWABLE DECISIONS AND CONDUCT
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - JURISDICTIONAL MATTERS
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - FAILURE TO OBSERVE STATUTORY PROCEDURE
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - PROCEDURAL FAIRNESS
ADMINISTRATIVE LAW - JUDICIAL REVIEW - STANDING TO INSTITUTE PROCEEDINGS - PARTICULAR CASES
ADMINISTRATIVE LAW - JUDICIAL REVIEW - POWERS OF COURTS UNDER JUDICIAL REVIEW LEGISLATION - DECLARATIONS
The Commissioner of Police and DA, a member of the South Australia Police Special Task and Rescue Group, lodged an appeal and filed an application for judicial review in respect of certain statements made by the Deputy State Coroner in the ‘Finding of Inquest’ following an inquest into the death of Alexander Kuskoff on 16 September 2015.
Mr Kuskoff was shot and killed by DA, at his home in Elwomple, in the course of police attempting to detain him to take him to a mental health facility. It was a death in custody.
The Commissioner and DA contended that, in relation to the appeal, the Deputy Coroner made certain findings that were erroneous and contrary to the evidence (grounds one to four). In addition, the appellants argued that the findings were made in a denial of procedural fairness to each appellant (ground five) and in circumstances where the rule in Browne v Dunn was not complied with (ground six). It was contended that the findings should be set aside and replaced with such other findings as the Full Court considered appropriate.
With respect to the judicial review, the Commissioner and DA sought declarations that certain findings/suggestions and a “discussion” on SA Police policy were beyond the jurisdiction of the Coroner’s Court and not authorised by law.
The intervenor contended that the Commissioner lacked standing to prosecute either the appeal or the judicial review proceedings. The intervenor contended that the Deputy Coroner’s findings were not erroneous or beyond power and that none of the impugned statements was amenable to appeal.
Held, dismissing the appeal and declining to grant declaratory relief,
1. In relation to the appeal (grounds one to four)
a) The impugned statements are not findings amenable to appeal (at [50]; [51]; [54]; [56]; [57]; [74]);
b) In any event, the impugned statements were consistent with the evidence and were open to the Deputy Coroner to make (at [74]).
2. In relation to the appeal (ground five)
a) DA was given ample opportunity to give evidence about his reflection between firing the shots (at [80]);
b) The Deputy Coroner’s statements do not reflect adversely on DA (at [82]).
3. In relation to the appeal (ground six)
a) The rules of evidence, including the rule in Browne v Dunn, do not apply in coronial proceedings (at [83]);
b) Neither appellant has established that any unfairness was perpetrated in respect of the opportunities afforded to DA (at [84]).
4. In relation to the judicial review application
a) the impugned statements do not amount, either separately or together, to a suggestion of liability on the part of DA so as to enliven s 25(3) of the Coroner’s Act 2003 (at [110]);
b) whether DA was adhering to a policy of extremity shooting is a circumstance of Mr Kuskoff’s death, and further, remarks about the reach of that policy are within the scope of those circumstances. The impugned statements were not made outside the scope of the Deputy Coroner’s power and declaratory relief should not be granted (at [125]).
5. In relation to standing to bring the judicial review proceedings
a) The Commissioner of Police does not have standing to bring the judicial review in respect of the Coroner’s statements allegedly implying DA’s liability (at [127]);
b) Neither the Commissioner of Police nor DA have standing to bring the judicial review in respect of the SA Police policy (at [128]).
Coroner's Act 2003 (SA) ss 13, 21, 24, 25, 27; Supreme Court Act 1935 (SA) s 31; Criminal Law Consolidation Act 1935 (SA) s 15, referred to.
Bell v Deputy Coroner of South Australia [2020] SASC 59; WRB Transport v Chivell (1998) 201 LSJS 102; Onuma v Coroner's Court of South Australia (2011) 111 SASR 382; Perre v Chivell (2000) 77 SASR 282, applied.
Saraf & Anor v Johns (2008) 101 SASR 87, distinguished.
Commissioner of Police v Coroner Court of South Australia; Commissioner of Police v Australian Lawyers Alliance Ltd (2018) 130 SASR 321; Browne v Dunn (1983) 6 R 67 HL; R v South London Coroner; Ex parte Thomson (The Times, 9 July 1982); Musumeci v Attorney-General of NSW & Anor [2003] NSWCA 77; Re inquest into the death of Romuald Todd Zak; Ex parte Zak [2006] WASC 186; Annetts v McCann (1990) 170 CLR 596; Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475; Jardein Pty Ltd v Stathakis [2007] FCAFC 148; Craig v State of South Australia (1995) 184 CLR 163; Australian Broadcasting Tribunal v Bond & Ors (1990) 170 CLR 321; Keown v Khan [1999] 1 VR 69; Ainsworth & Anor v Criminal Justice Commission (1992) 175 CLR 564, discussed.
Foote v Coroner's Court (2018) 181 ACTR 33; Marelic v Comcare [1993] FCA 599, considered.
WORDS AND PHRASES CONSIDERED/DEFINED
"cause or circumstances”, “findings”, “suggestions”, “prohibited suggestions”, “recommendations”, “criminal liability”, “civil liability"
COMMISSIONER OF POLICE & ANOR v NO RESPONDENT; COMMISSIONER OF POLICE & ANOR v CORONERS COURT OF SOUTH AUSTRALIA
[2020] SASCFC 64Full Court: Kourakis CJ, Parker and Hughes JJ
KOURAKIS CJ: I would dismiss the appeal and the application for judicial review for the reasons given by Hughes J.
PARKER J: I agree with the reasons of Hughes J. I would dismiss the appeal and the application for judicial review.
HUGHES J: Late in the evening of 16 September 2015, Alexander Kuskoff died of gunshot wounds after being shot by a member of the SA Police Special Task and Rescue Group (STAR Group). The shooting occurred on Mr Kuskoff’s rural property at Elwomple near Tailem Bend. He was psychiatrically disturbed at the time. Mr Kuskoff’s death was the culmination of attempts by police to detain him so that he might be taken to a mental health facility. In the day of Mr Kuskoff’s death, he had discharged a bolt action rifle 37 times and was known to be in possession of a significant number of guns, and ammunition. At the time of his death his property was surrounded by a police cordon. It was a death in custody.
At the inquest into the cause and circumstances of Mr Kuskoff’s death, it was not in dispute that after police attempts during the daylight hours of 16 September 2015 to enter Mr Kuskoff’s property, STAR Group officers were called to assist. Mr Kuskoff was making threats and behaving in a bizarre, hostile manner. The evidence would lead the Coroner to conclude that there was no prospect of Mr Kuskoff leaving the property willingly, or of his mental state stabilising if he were left alone.
The two officers key to bringing the situation to its conclusion were DA and AM who were at the rear of the property.[1] They had taken up positions approximately 140 meters from Mr Kuskoff’s house. The terrain did not provide much by way of protection. It was night and visibility was very low. There was no natural or ambient light. Mr Kuskoff was standing outside the back door of the house, occasionally discharging his firearm in different directions. DA and AM were armed and DA could see the outline of Mr Kuskoff’s silhouette through his firearm’s night-scope. AM’s firearm did not have a night-scope.
[1] Consistent with orders made in an earlier judicial review action during this inquest the STAR Group witnesses will be referred to by their initials: Commissioner of Police v Coroners Court of South Australia; Commissioner of Police v Australian Lawyers Alliance Ltd (2018) 130 SASR 321.
The versions of any witness statements and documents that are available to the public are to be redacted such that the names of STAR Group officers are replaced by their initials only.
A helicopter circled overhead. Mr Kuskoff fired several shots at the helicopter and then aimed his weapon parallel to the ground. He continued to shoot in what DA and AM thought to be an arc across the rear of the property. The shots came increasingly closer to DA and AM. They heard the crack of one particular shot and heard foliage move nearby. DA averted his eyes from the scope and looked towards AM and they had a brief whispered exchange regarding the proximity of the last shot. DA resumed his view through his scope. He could see a silhouette of Mr Kuskoff. He fired three times with short intervals between each shot and Mr Kuskoff was killed.
The Finding of Inquest
The inquest was held over 33 days and traversed a number of topics bearing on Mr Kuskoff’s mental health and his interactions with members of his family and various authorities in the months and days prior to his death. Expert evidence was given by the pathologist, Dr Gilbert, and Dr Naso, a psychiatrist who reviewed the evidence and gave an opinion as to Mr Kuskoff’s likely mental state in the hours prior to his death.
Family members of Mr Kuskoff appeared in the early stages of the inquest but withdrew part-way through. The Commissioner of Police and the SAPOL officers who interacted with Mr Kuskoff were all represented by Miss Nelson QC of counsel throughout the hearing and, with Mr McDonald, on this appeal.
Following the conclusion of the inquest, the Deputy Coroner published a document entitled Finding of Inquest. That document set out, over 100 pages, the Deputy Coroner’s findings, reasoning, conclusions and recommendations under the following headings:
1Introduction and reason for inquest
2Mr Kuskoff’s post-mortem examination
3The evidence of Dr Maria Naso – psychiatrist
4Mr Kuskoff’s dealings with the RSPCA
5Recent background to the events of 16 September 2015
6Further events on 15 September 2015 involving mental health services
7Early events of the evening of 16 September 2015
8The arrival of police
9Mr Kuskoff continues to make phone calls
10The involvement of STAR group
11Interviews that investigating police conducted with STAR Group officer AM
12Interviews that investigating police conducted with STAR Group officer DA
13The evidence of officer AM
14The evidence of officer DA (containing impugned statements at 14.31)
15The FLIR footage
16Independent perceptions of the final shots
17The ballistic evidence
18Discussion re the circumstances of Mr Kuskoff’s shooting (containing impugned statements at 18.10)
19Conclusions (containing impugned statements at 19.17)
20Recommendations (containing impugned statements at 20.4)
Whilst the inquest considered circumstances of Mr Kuskoff’s life and his interactions with his family and authorities, the focus of the appeal was upon the moments prior to Mr Kuskoff’s death and in particular what DA could see in the short period of time during which DA fired three times at Mr Kuskoff, and which of those shots incapacitated him.
The evidence of those circumstances was primarily drawn from the evidence of DA, who was found to be a witness of truth, and that of the pathologist, Dr Gilbert, who performed the autopsy and whose evidence was unchallenged. As to the cause of death, the Deputy Coroner stated,
The said Court finds that Alexander Peter Kuskoff aged 50 years, late of 43 Elwomple Road, Elwomple, South Australia died at Elwomple, South Australia on the 16th day of September 2015 as a result of gunshot wounds to chest and abdomen.[2]
[2] Finding of Inquest into the death of Alexander Peter Kuskoff, Deputy State Coroner Anthony Schapel (14 August 2019), p 1.
As to recommendations, there was only one. The Deputy Coroner said, under the heading ‘Recommendations’:
20.1Pursuant to section 25(2) of the Coroner’s Act 2003 I am empowered to make recommendations that in the opinion of the court might prevent, or reduce the likelihood of, a recurrence of an event similar to the event that was the subject of the Inquest.
20.2In my view there is limited scope in this inquest for the making of meaningful recommendations that might achieve the aims recited in the preceding paragraph. However, there are two general areas arising from the inquest that should be the subject of comment.
20.3Firstly, there is the issue involving the lack of liaison between mental health services and SAPOL on 15 and 16 September 2015.
….
In this current inquest I would encourage the Chief Executive of the Department of Health and the Commissioner of Police to discuss means by which the lack of appropriate liaison in the case of Mr Kuskoff might not be repeated and in particular to develop strategies to ensure that SAPOL are made aware of cases that might require its intervention. I recommend accordingly.
20.4The only other matter that requires discussion is the SAPOL policy of avoidance of extremity shooting. I have already referred to this earlier in these findings. The SAPOL policy is that if it is necessary to use a firearm to disable a human threat, the centre mass of the individual is the appropriate target. Clearly this is more likely to result in death or very serious injury as distinct from a situation where a limb is the target. The policy might well give rise to an appropriate and lawful defensive response appropriate in many cases. However, there may be occasions in which the shooting of a person with the torso as a target, with an accompanying intention to kill, will not be regarded as necessary and reasonable or be seen as a proportionate response to the threat posed by that person. Whether it is so will naturally depend on all of the circumstances confronting the particular officer. This should be borne in mind by police in the field.
Two Actions brought by the Appellants
The Commissioner of Police and DA brought a joint appeal and joint application for judicial review in respect of the Coroner’s Findings and Recommendations published on 14 August 2019. For convenience, they will be referred to as the appellants in respect of both actions. Neither the Deputy Coroner nor the Coroner’s Court appeared on the appeal. The Crown Solicitor arranged for Mr Mellor to intervene on behalf of the Attorney-General in the proceedings for the purpose of providing a contradictor, and Mr Robertson SC with Mr Douglas made written and oral submissions in fulfilment of that role.
In respect of the appeal, the appellants complain of seven impugned statements. Four grounds address the relationship of those statements to the evidence. Grounds five and six allege procedural error on the part of the Deputy Coroner with respect to the statements. The appellants say that the impugned findings are erroneous, unsupported by the evidence, inconsistent with other findings, made in denial of procedural fairness and in contravention of the rule in Browne v Dunn.[3]The appellants seek orders that the impugned findings be set aside and other findings substituted.
[3] (1983) 6 R 67 HL.
The judicial review was initially brought by the appellants as an avenue for relief in respect of certain other statements made under the heading “Recommendations” in the Finding of Inquest. The statements concerned a SAPOL policy position as to the course of action for an officer to follow when shooting a person in the course of duty, and was referred to by SAPOL as its directive on “extremity shooting”. The appellant sought declaratory relief in respect of the Deputy Coroner’s statements on this topic. The appellants subsequently extended the grounds of judicial review to seek declarations in respect of statements overlapping those that were the subject of the appeal.
It is convenient to deal with the appeal first.
The Appeal
The appeal was brought pursuant to s 27 of the Coroner’s Act 2003. It confers a right of appeal on “a person who has a sufficient interest in a finding made on an inquest.” It was not in dispute that, subject to the complained of statements being findings, both appellants had a sufficient interest in the matter to bring the appeal.
The appellants advanced six grounds of appeal. The first four, addressing impugned statements within the Finding of Inquest, may be considered together. Grounds five and six, directed at allegations of procedural error, are addressed thereafter.
Grounds 1-4: the impugned statements
The appellants’ grounds of appeal 1-4 identified seven statements or parts of statements in the Finding of Inquest which, collectively and separately, constitute the impugned statements. The impugned statements were portions of the following sentences. The appellants complained of the portions in bold and emphasised the italicised words:
1I do not believe that Mr Kuskoff still presented in a threatening manner after the first of DA’s shots: at [14.31] (the first impugned statement);
2Although I am uncertain as to what DA actually believed he saw of Mr Kuskoff after the first shot, it is possible that at the time he fired his second and third shots he mistakenly believed that he and AM were still under threat from Mr Kuskoff: at [19.17] (the second impugned statement);
3However it is possible that DA would not have been able to fully perceive what happened to Mr Kuskoff as a result of his first shot: at [18.10] (the third impugned statement);
4Although I am uncertain as to what DA actually believed he saw of Mr Kuskoff after the first shot, it is possible that at the time he fired his second and third shots he mistakenly believed that he and AM were still under threat from Mr Kuskoff: at [19.17] (the fourth impugned statement);
5That DA ought not to have fired the second and third shots: inferred from [18.10] and [19.17] (the fifth impugned statement);
6This naturally brings into question whether the second and third shots were objectively necessary and whether DA should have more carefully reflected on what the result of the first shot was before firing another: at [18.10] (the sixth impugned statement);
7I make allowances for the possibility that all three shots were rapidly fired in the agony of the moment, but I am unable to determine whether or not DA gave himself a sufficient opportunity to reflect on what his first shot had achieved before he fired his second and third shots: at [19.17] (the seventh impugned statement).
Of the seven impugned statements, the second and fourth are contained in the same sentence. The fifth is not a direct quotation from words used by the Deputy Coroner but said to be a finding drawn from [18.10] and [19.17] of the Finding of Inquest read together. It will be referred to as an impugned statement for convenience; it is in fact an impugned implication.
The appellants complained that the impugned statements were:
·erroneous (ground 1);
·unsupported by the evidence and/or not reasonably open on the evidence (ground 2);
·based in part on the Deputy Coroner’s reliance upon a particular expression used once by DA divorced from its context and the effect of his evidence as a whole (Findings at 12.17]) (ground 3);
·inconsistent with the Deputy Coroner’s finding that he found DA to be “a most impressive” witness who “answered questions in an apparently open and forthright manner” and gave answers that were “consistent, persuasive, had the ring of truth and was[sic] supported by objective evidence”, and whose evidence he “accepted” (Findings at [18.3]) (ground 4).
The Intervenor submitted that some of the impugned statements were not amenable to appeal on the basis that the scope of an appeal is limited to those parts of the Deputy Coroner’s Finding of Inquest that are “findings” within the contemplation of s 27 of the Coroner’s Act 2003 which confers the right of appeal. That foundational issue requires further consideration of the nature of the jurisdiction and functions of the coroner.
The Coroner’s jurisdiction and functions
Section 13 of the Coroner’s Act 2003 provides that the jurisdiction of the Coroner’s Court is to “hold inquests in order to ascertain the cause or circumstances of the events prescribed by or under this Act or any other Act.” The Court’s jurisdiction in this matter was enlivened by virtue of the fact that Mr Kuskoff’s death occurred whilst he was in custody: s 21(1). Section 25 of the Act sets out the Court’s obligations on completing an inquest. It provides:
25—Findings on inquests
(1)The Coroner's Court must, as soon as practicable after the completion of an inquest, give its findings in writing setting out as far as has been ascertained the cause and circumstances of the event that was the subject of the inquest.
(2)The Court may add to its findings any recommendation that might, in the opinion of the Court, prevent, or reduce the likelihood of, a recurrence of an event similar to the event that was the subject of the inquest.
(3)However, the Court must not make any finding, or suggestion, of criminal or civil liability.
(4)The Court must, as soon as practicable after the completion of the inquest, forward a copy of its findings and any recommendations—
(a) to the Attorney-General; and
(b) in the case of an inquest into a death in custody—…
(i)if the Court has added to its findings a recommendation directed to a Minister or other agency or instrumentality of the Crown—to each such Minister, agency or instrumentality of the Crown; and
(ii)to each person who appeared personally or by counsel at the inquest; and
(iii)to any other person who, in the opinion of the Court, has a sufficient interest in the matter.
(5)The Minister or the Minister responsible for the agency or other instrumentality of the Crown must, within 8 sitting days of the expiration of 6 months after receiving a copy of the findings and recommendations under subsection (4)(b)(i)—
(a) cause a report to be laid before each House of Parliament giving details of any action taken or proposed to be taken in consequence of those recommendations; and
(b) forward a copy of the report to the State Coroner.
An inquest is a process directed at ascertaining facts, upon which recommendations may then be formulated. The process was described by Lord Lane CJ in R v South London Coroner; Ex parte Thomson as follows:[4]
…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…
[4] The judgment is only reported in The Times 9 July 1982; quoted in Paul Matthews & John Foreman Jervis on the Office and Duties of Coroners 11th Edition at p 6.
More recently, the New South Wales Court of Appeal in Musumeci v Attorney General of NSW & Anor[5] described it as a ‘hybrid’ process, containing both adversarial and inquisitorial elements.[6] In conducting an inquest, the Court is not bound by the rules of evidence and may inform itself in any way it sees fit and must act according to equity and good conscience: s 24. Relevantly, in respect of understanding the nature of the appeal, it is a purposive activity bound in scope by the terms of s 25(1) of the Act. It was recently described by this Court in the following terms:[7]
The jurisdiction of the Court, in the case of an inquest into a death in custody, is conferred by a combination of sections 13 and 21(1)(a) of the Act, which are extracted above. They confer jurisdiction to hold an inquest in order to ascertain the cause or circumstances of the death. The reference to “circumstances” is broader than the reference to “cause”. The jurisdiction is conferred in purposive terms, that is to inquire for the purpose of determining the cause or circumstances of the death.
[5] [2003] NSWCA 77.
[6] [2003] NSWCA 77 at [33] (Ipp JA); Foote v Coroner’s Court (2018) 181 ACTR 33 at p 36 [16] (McWilliam AJ).
[7] Bell v Deputy Coroner of South Australia [2020] SASC 59 at p 115 [576] (Blue J).
The appellants’ case in relation to the impugned words
The appellants’ case is confined to the Deputy Coroner’s analysis of DA’s evidence about the events immediately prior to the discharge of his firearm, and the three shots that he fired that ultimately caused Mr Kuskoff’s death. DA gave a written statement and lengthy evidence at the inquest. The appellants’ focus was upon what DA heard and saw immediately prior to the first shot and between each of the three shots he fired. DA had Mr Kuskoff within the sight of his night-vision scope on his firearm. Mr Kuskoff was about 140 metres away. It was very dark. DA could only see a silhouette of Mr Kuskoff through the scope. Upon perceiving a shot from Mr Kuskoff disrupting foliage in the general direction of AM and himself, and confirming that with AM, he discharged his firearm at Mr Kuskoff. His evidence about what happened next was as follows, when questioned by Miss Nelson QC:[8]
Q: How many shots did you fire.
A: About three.
Q: Why three.
A: I’ve fired until I thought the threat wasn’t present any more. So the first shot he appeared to shrug, and I didn’t know whether he’d shrugged because a bullet had gone past him. I believe the threat was still there at that point; I fired again. I didn’t see any reaction, and then I fired again and I saw the figure and the silhouette go down to the ground, and at that point I still didn’t know whether any of my shots had actually hit Mr Kuskoff.
Q: Did you think there was still a threat.
A: As far as I was aware, there was still possibly a threat there. I didn’t know whether he had just laid down on the ground to try to get away, or was lying down to take another shot. So at that point I wasn’t aware whether the threat was still there or not.
[8] Transcript Coroner’s Court (19 July 2018), p 1562.
DA was questioned further by counsel assisting, Mr Harris QC, in relation to the “shrug”.[9]
[9] Transcript Coroner’s Court (20 July 2018), p 1625-1626.
Q: You say he appeared to shrug after the first one.
A: Yes.
Q: Did you ever see him, in the period of time, spin around.
A: No.
Q: So, the shrug could have been, to your mind, because the bullet had missed him or it hit him, and you couldn’t tell one way or the other.
A: I couldn’t tell.
Q: So you fired again and you didn’t see any reaction at all.
A: No.
Q: And the third one, you saw him go down to the ground.
A: Yes.
Q: Even at that stage you weren’t entirely sure whether or not he’d gone to the ground to avoid being hit.
A: Correct.
Q: So it might have been evasive action or you might have dropped him with a bullet that had hit him.
A: Yes.
Q: And you did that because you were needing to evaluate the effectiveness of each of those shots –
A: Yes.
Q: - to decide whether or not he was still posing a threat to you and AM or anybody else; correct.
A: Yes.
And later, DA and Mr Harris QC had the following exchange:[10]
[10] Transcript Coroner’s Court (20 July 2018), p 1627.
Q: And that he’s down, or you think he’s down.
A: Yes.
Q: So it would be right that at that stage it was still important for you because of the possibility that he might still pose a threat, to as best as you could, keep observations of him.
A: And that’s what I was doing, yep.
Q: So you could see him on the ground.
A: No, I couldn’t see him on the ground, … had the area in view.
Q: So he had been lost from your vision –
A: Yep.
Q: - because he was no longer vertical.
A: Yes.
And later:[11]
[11] Transcript Coroner’s Court (20 July 2018), p 1628-1629.
Q: You’ve described it as a shrug.
A: Yep.
Q: Might it be the case, because of the fact that you’re looking at silhouettes, that what you interpreted as a shrug, might have been him spinning around.
A: He could have spun around, yep.
Q: And as to whether or not he got to the location where he was ultimately found and resuscitation attempted, it’s possible, is it, that he might have crawled there and you couldn’t have seen it through the view that you had of your night scope.
A: Yeah, absolutely. He could have even spun and moved in that direction and I wouldn’t necessarily have known that he was moving.
Q: and perhaps I can follow up for that, just to be clear for the transcript, is that because you’re looking at silhouettes, you don’t necessarily get a depth of feel-
A: No.
Dr Gilbert was the other witness who gave evidence about Mr Kuskoff’s actions immediately prior to his death. He conducted the autopsy. He reconstructed Mr Kuskoff’s movements by interpreting the trajectory of the bullets and their impact upon Mr Kuskoff. Dr Gilbert’s tendered report stated:[12]
It appeared most likely in the described circumstances that the first shot that struck the deceased was that to the left forearm. The plane of injury to the torso from this shot was horizontal and centred approximately 117 cm above the deceased’s soles. The second shot then struck the deceased while he was facing away from the line of fire and bent forwards as indicated by the upward wound path. This positioning of the body could have been a response to the first shot (anticlockwise rotation of the trunk and bending towards) assuming the second shot followed the first after a short interval.
[12] Report of Dr Gilbert (19 November 2015) Exhibit C116, p 3 [3].
Neither DA at the time nor Dr Gilbert after the fact could say with certainty which of the two shots that hit Mr Kuskoff, was fired first. Dr Gilbert said, in response to questioning by counsel assisting, Ms Kereru:[13]
Q:Are you able to say with any certainty which bullet hit Mr Kuskoff first whether it be 1 or 2.
A: Not with any certainty but assuming the police account of events is accepted then I think in all likelihood it is 1 is the first and 2 is the second.
And later:[14]
A: Assuming that these shots have come from the same point of fire, I think it’s likely that the injury I’ve described as no 1 is probably the first and infliction of that shot has probably caused him to swing around anti-clockwise and possibly bend over as he’s sort of collapsing from the effects of that shot…”
[13] Transcript Coroner’s Court (29 March 2018), p 166.
[14] Transcript Coroner’s Court (29 March 2018), p 179.
Dr Gilbert also gave evidence as to which of the shots fired was likely to have had fatal effect. An exchange with Ms Kereru contained the following:[15]
[15] Transcript Coroner’s Court (29 March 2018), p 175-177.
Q: Now just coming to the internal injuries from the first bullet, you’ve already touched upon this in your evidence.
A: Yes.
Q: Did you consider that any of these internal injuries would have been fatal.
A: Untreated they’re potentially fatal, yes.
Q: Which ones in particular.
A: The main injury of concern here is the lacerations to the lower lobe of the left lung allowing air to escape from the lung into the chest cavity and therefore reducing function of the left lung, but more particularly haemorrhage from those lacerations, blood loss into the chest. There would also be blood loss associated with all the injuries to the skin, fractured ribs, muscle damage and all those kinds of things, but the most serious injury was the injury to the lung.
Q: And untreated, how quickly would you expect Mr Kuskoff to succumb from the injury to bullet no 1.
A: One can never be certain but it could be a matter of minutes to hours, I think this pattern of injury is potentially treatable if addressed quickly.
Q: You’ve given a range there, in terms from minutes to hours.
A: Yes, I’ve been very rough because I can’t be certain.
Q: That takes into account any underlying disease that the person has, doesn’t it.
A: Yes.
The Deputy Coroner found that DA was a witness of truth. His Honour said,[16]
…I have accepted the evidence of DA. DA was a most impressive witness. Mr Harris QC submitted to the Court that DA was an impressive witness who answered questions in an apparently open and forthright manner. I agree with that submission. It is also worth observing that answers DA gave in a most searching cross-examination were on the whole consistent, persuasive, had the ring of truth and was [sic] supported by the objective evidence.
[16] At paragraph [18.3].
Grounds 1 to 4 can be summarised as the appellants contending that, having found that DA was a witness of truth, the Deputy Coroner erred in that the impugned statements were inconsistent with DA’s unchallenged evidence regarding Mr Kuskoff’s movements after the first shot, and DA’s perception of the threat posed by Mr Kuskoff.
Only findings are amenable to appeal
The appellants advanced their case on the basis that each of the impugned statements is a finding amenable to appeal within the meaning of s 27 of the Act. The intervenor invited the Court to conclude that none of the impugned statements is a finding such as to enliven the right of appeal. Section 27 provides:
27—Appeals from findings made on inquests
(1)The Attorney-General or a person who has a sufficient interest in a finding made on an inquest may, subject to this section and in accordance with the rules of the appellate court, appeal to the Supreme Court against the finding.
(2)The appeal lies to the Supreme Court constituted of a single Judge (but the Judge may, if the Judge thinks fit, refer the appeal for hearing and determination by the Full Court).
(3)An application under subsection (1) must be made within one month after the findings on the inquest are given by the Coroner's Court.
(4)However, the Supreme Court may, in its discretion, extend the time fixed for making an application, even if the time for making the application has ended.
(5)On an appeal, the appellate court may, if the interests of justice so require, re-hear witnesses or receive fresh evidence.
(6)On the hearing of the appeal, the appellate court may exercise any one or more of the following powers:
(a) it may confirm or set aside the finding subject to the appeal;
(b) it may substitute a finding that appears justified by the evidence;
(c) it may order that the inquest be re-opened, or that a fresh inquest be held;
(d) it may make any other order (including an order for costs) that may be necessary or desirable in the circumstances.
(7)For the purposes of this section, a person has a sufficient interest in a finding made on an inquest if—
(a) the finding affects or may affect that person's pecuniary interests; or
(b) the finding reflects adversely on that person's competence in his or her trade, profession or occupation; or
(c) the person has, in the opinion of the Supreme Court, some other interest sufficient to ground an application under this section.
As s 27 evidently describes the entitlement to an appeal by reference to a “finding on an inquest”, the meaning of that term may be identified from the manner in which the term “finding” is used within the Coroner’s Act 2003, and in particular within s 25 which establishes the coroner’s functions. Section 25, set out in paragraph [23] above, signals that the content of a Finding of Inquest may contain statements in at least three categories: findings, recommendations and prohibited suggestions of criminal or civil liability. Section 25(3) recognises that the prohibited activity may involve a finding of criminal or civil liability, or a suggestion of such. Findings and suggestions are therefore distinct.
A finding is a statement regarding the cause or circumstances of death
Plainly, it is not the whole of the reasons, the conclusions and the recommendations, in a Finding of Inquest that constitute the “findings” notwithstanding that they are all encompassed under a document heading “Finding of Inquest”. Section 25 reveals that findings, recommendations and prohibited suggestions are mutually exclusive. But its context also reveals that a finding is confined to the jurisdictional scope of the coroner’s activity. A finding is a statement concerning the ascertainment of the cause and circumstances of the event that is the subject of the inquest.
‘Cause’ and ‘circumstances’ connote discrete aspects of the coronial activity as was observed in WRB Transport v Chivell.[17] Lander J (with whom both Prior and Mullighan JJ agreed) said with regard to the meaning of the word “cause” in this context:[18]
Clearly enough, the 'cause and the circumstances' must be two different things. If it was otherwise there would be no reason for Parliament to have included both words.
The cause of a person's death may be understood as the legal cause. In determining those events which may be said to give rise to the cause of the death, the Coroner is not limited by concepts such as 'direct cause', 'direct or natural cause', 'proximate cause' or the 'real or effective cause'. Nor is the Coroner limited to a cause which is reasonably foreseeable. The cause of a person's death in respect of the Coroner's jurisdiction is a question of fact which, like causation in the common law must be determined by applying common sense to the facts of each particular case; Mason CJ, March v E & M H Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 at 515.
The Coroner, therefore, has to carry out an inquiry into the facts surrounding the death of the deceased to determine what, as a matter of common sense, has been the cause of that person's death. The inquiry will not be limited to those facts which are immediately proximate in time to the deceased's death. Some of the events immediately proximate in time to the death of the deceased will be relevant to determine the cause of the death of the deceased. But there will be other facts less proximate in time which will be seen to operate, in some fact situations, as a cause of the death of the deceased. That is a factual inquiry which only has, as its boundaries, common sense.
[17] (1998) 201 LSJS 102 at p 106.
[18] WRB Transport v Chivell (1998) 201 LSJS 102 at p 106-107.
In respect of the task of determining ‘circumstances’ of a death, Lander J went on to say:[19]
Not only does the Coroner have jurisdiction to determine the cause of a deceased's death, he also has jurisdiction to determine the circumstances of the death of any person.
That jurisdiction must be in addition to the jurisdiction given to determine the cause of the death of the deceased.
There may be some circumstances surrounding the death of the deceased which, although not operating directly as a cause of the death of the deceased, are relevant for the coroner's inquiry.
Those circumstances might explain the origin of the causes of the death of the deceased or the interaction between a number of causes of death.
The circumstances surrounding the death of the deceased may be important, for the purpose of the coroner adding to his or her findings, recommendations which might prevent or reduce the likelihood of a recurrence of a death.
[19] WRB Transport v Chivell (1998) 201 LSJS 102 at p 107.
Lander J concluded:[20]
... the circumstances to be inquired into cover a much wider area of inquiry than the cause.
In my opinion, the jurisdiction given by the Act to the coroner is quite extensive. It is not limited, as suggested, to a particular inquiry into the direct cause of death of the deceased. The coroner has a jurisdiction and, indeed, an obligation to inquire into all facts which may have operated to cause the death of the deceased and as well to inquire into the wider circumstances surrounding the death of the deceased.
[20] WRB Transport v Chivell (1998) 201 LSJS 102 at p 108.
Findings are conclusory
In Onuma v Coroner’s Court of South Australia,[21] the Court was asked to consider various impugned statements made with respect to the performance of a doctor who performed surgery on two women who subsequently died. The doctor complained of the Coroner’s statement that “the Court experiences a measure of disquiet about the manner in which these surgeries were carried out.”
[21] (2011) 111 SASR 382 (‘Onuma’).
He further complained about the Coroner’s statements,[22]
This sense of unease is compounded by the fact that not only was Mrs Hillman dealt a significant injury during her surgery, the surgical attempt to rectify that injury failed. Both of these events are said to be uncommon. That her surgery should be characterised by both of these unfortunate circumstances leads one to legitimately question the competence of the medical practitioner concerned.”
[22] Onuma v Coroner’s Court of South Australia (2011) 111 SASR 382 at p 390 [47].
Kelly J said,[23]
The impugned comments are underlined. In essence each of grounds 3, 5, 6, 7 and 11.3 are complaints that there was no evidence or insufficient evidence to justify the making of the impugned comments.
In fairness to the appellant it should be pointed out that strictly speaking the comments in [10.3] do not amount to findings as to the appellant’s incompetence. The language used by the Deputy Coroner is quite ambiguous and really goes no further than to express a doubt which the Deputy Coroner entertained about the competence of the appellant. However, the impugned comments plainly have the capacity to reflect adversely on the appellant. In these circumstances the Solicitor-General very fairly conceded that this Court should proceed on the basis that the impugned comments are for the purposes of the appeal “findings”. In my view that concession was correct. For the purpose of determining this appeal I accept that the impugned comments in [10.3] should be characterised as findings.
[23] Onuma v Coroner’s Court of South Australia (2011) 111 SASR 382 at p 390-391 [48]-[49].
It is evident, and the Court noted, that the statements in Onuma were in fact not findings as they lacked the necessary conclusory quality. Nevertheless, in the absence of an objection, the Court was content to proceed to consider whether the statements were supported by the evidence.
A finding is not any statement about the cause of death or a circumstance thereof. A finding must be conclusory. Reasoning towards such factual statements as to cause or circumstance does not constitute findings.
That which is a statement that is less than conclusory, but related to cause or circumstances of death, may be included in a Finding of Inquest to demonstrate consideration of evidence. Such statements may signal the Deputy Coroner’s view that the evidence fell short of enabling a finding. Further, a statement that is not a statement of fact at all, but a question or the entertainment of a doubt, is unlikely to evince sufficient certainty to amount to a finding.
Narrower approach consistent with scheme and objects of the Act
The text of s 27 further supports an approach to “finding” that limits it to conclusory statements regarding the cause or a circumstance of the death. On appeal, the Court may confirm or set aside or substitute a finding. A broader construction of the term “finding” would require an appellate court to entertain appeals regarding conclusions as to factual matters beyond the cause or circumstances of death, or statements of a factual nature less than conclusory about any aspect of the evidence. Such a right of appeal would be wider than is available to parties to civil and criminal proceedings. It is entirely consistent with the purpose and remit of the coroner’s jurisdiction that the right of appeal be limited, but that parties and aggrieved persons have certain protections including that which is achieved through the prohibition in s 25(3). It may be concluded that no appeal lies with respect to the “totality” of the document produced from the inquest[24] but only the findings therein, such findings to be understood as being the conclusory statements regarding a cause or the circumstances of death.
[24] See WRB Transport v Chivell (1998) 201 LSJS 102.
No appeal will lie in respect of “mere comment” because such comments on matters not central to the Coroner’s function as described by the enabling statute do not constitute a finding. Such was the conclusion of Murray J of the Supreme Court of Western Australia in Re inquest into the death of Romuald Todd Zak; Ex parte Zak.[25] The Court was required to consider the scope of its power to re-open an inquest where it had been alleged that the original finding failed to take into account relevant evidence. The Court concluded that the power should be understood to be limited to a challenge to a finding as to the cause or a circumstance of death, being the scope of the coroner’s jurisdiction.
[25] [2006] WASC 186 at [28].
The impugned statements were not findings
Many statements contained within a Finding of Inquest will lack the characteristics of a finding for one or more reasons, including if the statement is not conclusory. The structure of the Finding of Inquest is not determinative of whether a statement is a finding or not, but the structure contains some signals as to the Deputy Coroner’s approach. Each needs to be considered in turn.
Whether Mr Kuskoff continued to present a threat (the first impugned statement)
The first impugned statement in [14.31] “I do not believe that Mr Kuskoff still presented in a threatening manner after the first of DA’s shots” occur in analysis of DA’s evidence, and not under the heading “Conclusions”, and is not prefaced by the words “I find”. These are signals that they are not findings. Nevertheless, irrespective of their location within the document, the words could amount to a finding if they have the necessary factual and conclusory character and pertain to a circumstance of Mr Kuskoff’s death or a cause of it. The combined use of the introductory words, “I do not believe…” and the location of the impugned words outside of the section headed “Conclusions” are more consistent with the Deputy Coroner setting out reasons towards a finding rather than a finding itself. The impugned statements in [14.31] are not findings.
Statements regarding what DA perceived (the second, third and fourth impugned statements)
There were three impugned statements on this topic. One was the Deputy Coroner was “uncertain as to what DA actually believed” (in [19.17]). The second was an acknowledgement that it was “possible” that DA would not have been able to “fully perceive” the effects of the first shot (in [18.10]) and the third was that it was possible that DA “mistakenly believed” that he and AM were still under threat (in [19.17]). These are clearly not findings. They lack the conclusory nature and are couched in terms that signal doubt and uncertainty.
However, the decisive factor is that the topic of what DA saw and what actually occurred as a result of the three shots is later addressed in a conclusory way in section 19 of the Finding of Inquest, which is headed “Conclusions”. The conclusory statements about this topic are at [19.17] as follows:
…I find that DA’s first shot struck Mr Kuskoff in the left arm and that the projectile passed through that arm in a fragmented form and entered Mr Kuskoff’s body. Mr Kuskoff was still holding the rifle at his shoulder and aiming it in the general direction of DA and AM’s location when he was struck by DA’s first shot. DA’s first shot did not immediately kill Mr Kuskoff, but it incapacitated him.
These statements, which are the findings on the topic, are not the subject of challenge by the appellants.
Statements regarding what DA ought to have done (fifth, sixth and seventh impugned statements)
The fifth impugned statement was the proposition that DA ought not to have fired the second and third shots. The appellants maintained that this proposition was the inference to be drawn from the Deputy Coroner’s statements in [18.10] and [19.17]. Whilst there must be some doubt as to whether an inference could ever constitute a finding, it is plain that the inference is not properly drawn from the paragraphs said to contain the premises. Those paragraphs raise questions and express doubts but fall well short of statements that could be said to lead to the inference that the Deputy Coroner found that DA ought not to have fired the second or third shots.
The sixth impugned statement poses a question as to whether the second or third shots were “objectively necessary” and whether DA should have “more carefully reflected” after the first shot before firing again. The statement describes an issue or question, the answer to which is relevant to the cause or circumstances of Mr Kuskoff’s death but which the Deputy Coroner ultimately concludes is not available to him on the evidence.
Whilst the statement comes under the heading “Conclusions”, it does not have the requisite characteristic of factual assertion to constitute findings.
The seventh impugned statement was contained in [19.17]. The Deputy Coroner stated that he was “unable to determine whether or not DA gave himself a sufficient opportunity to reflect on what his first shot had achieved”. This represented a statement about the sufficiency of evidence on a topic that the Deputy Coroner considered to have been raised by the other findings. It did not constitute a finding. Nor was it a failure to make a finding where a finding could and should have been made. It cannot be criticised as a “non-finding” because such a criticism can only properly be made where the evidence supports a finding. In this case, the Deputy Coroner considered that the evidence did not allow a conclusory statement.
In the sixth and seventh impugned statements, the Deputy Coroner deliberately declined to make a positive finding that DA had sufficient opportunity to discern the effect of the first shot, before shooting a second and third time. The deliberate announcement that a finding on that issue would not be made is best understood against the background of the request that was put by DA’s counsel at the inquest, and made again on this appeal, that the appropriate findings on the evidence were that:
· DA did not perceive and could not reasonably have perceived, that the deceased had gone down, or no longer presented a threat, after the first shot was fired, or that he had been incapacitated by the first shot fired by DA;
· DA reasonably apprehended that the deceased continued to present a threat to both him and DA at the time when he fired each of the second and third shots; and
· DA was justified in firing each of the first, second and third shots in that the firing of each of those shots was reasonably proportionate to the threat as DA reasonably perceived it to exist.
Undoubtedly those requests encouraged the Deputy Coroner to address the issue of DA’s perceptions notwithstanding that his conclusion was that he was unable to make positive findings about those perceptions.
What were the Deputy Coroner’s findings?
The contention that the seven impugned statements did not amount to findings is supported by reference to the findings that were in fact made. The Finding on Inquest contains numerous findings regarding the cause and circumstances of Mr Kuskoff’s death. Most are contained within s 19 of the Finding on Inquest. A primary finding, in [19.17], is that:
The first shot that DA had fired at Mr Kuskoff and which had struck him had caused Mr Kuskoff to turn around with the result that his back was presented to DA.
This finding regarding a circumstance of Mr Kuskoff’s death is drawn from the evidence of DA but more particularly from the evidence of Dr Gilbert. This statement was not the subject of any challenge by the appellants.
The Deputy Coroner also stated in [19.17]:
I find that the reality was that Mr Kuskoff had been incapacitated by the first gunshot wound such that he could not have presented and did not present any further threat to DA and AM. That is not to say, however, that DA perceived that to have been the case.
The first of these statements is a finding relating to a circumstance of Mr Kuskoff’s death. It is amenable to appeal but was not the subject of any challenge.
Impugned statements consistent with evidence in any event
I am not satisfied that the impugned statements were findings. However, for completeness I observe that the impugned statements were open to the Deputy Coroner to make to demonstrate the manner in which his Honour synthesised the evidence of DA and Dr Gilbert, as part of the reasoning process toward the findings made.
After the impugned statements at [19.17], the Deputy Coroner went on to state, later in that paragraph:
Although I am uncertain as to what DA actually believed he saw of Mr Kuskoff after the first shot, it is possible that at the time he fired his second and third shots he mistakenly believed that he and AM were still under threat from Mr Kuskoff. I make allowances for the possibility that all three shots were rapidly fired in the agony of the moment, but I am unable to determine whether or not DA gave himself a sufficient opportunity to reflect on what his first shot had achieved before he fired his second and third shots.
Insofar as this paragraph contains statements regarding DA’s state of mind, the statements do not amount to a conclusory statement regarding DA’s state of mind. If it had done, such a statement might have constituted a finding. However, the Deputy Coroner considered the evidence did not allow a conclusion on that. As the intervenor submitted, in light of Dr Gilbert’s evidence and the Deputy Coroner’s finding that Mr Kuskoff in fact did not present a threat after the first of the two shots that impacted his body, the Deputy Coroner gave DA the benefit of the doubt and made no finding as to DA’s knowledge of Mr Kuskoff’s incapacity.
Dr Gilbert’s report contains the following:[26]
The autopsy examination indicated that the deceased had been struck by two shots. One of these entered his left lower forearm and exited over the upper portion of the forearm with multiple fragments re-entering the body over the left lower lateral chest resulting in injuries to the ribs, spleen, colon, diaphragm and lower lobe of the left lung. Fragments of copper jacket were located in the left anterior and posterior chest wounds, around the splenic flexure and in the lower lobe of the left lung. Two exit wounds were noted over the left posterior chest. The overall alignment of the various components of this injury would be consistent with the deceased being shot while pointing a weapon in the direction of the STAR officer.
The other gunshot wound entered over the right lower back passing forwards, upwards and to the left resulting in damage to the posterior aspect of the right 12th rib, the right paravertebral muscles, the right kidney, the hepatic flexure of the colon, the right lobe of the liver and the posterior aspect of the sternum. The base of the projectile came to rest in the sternum. There were no associated exit wounds.
Both gunshot wounds would have resulted in substantial internal haemorrhage. The projectiles, by design, had fragmented extensively inside the body.
[26] Report of Dr Gilbert (19 November 2015) Exhibit C116, p 2 [2].
Dr Gilbert goes on to make the following crucial statement:[27]
It appeared most likely in the described circumstances that the first shot that struck the deceased was that to the left forearm. The plane of injury to the torso from this shot was horizontal and centred approximately 117 cm about the deceased’s soles. The second shot then struck the deceased while he was facing away from the line of fire and bent forwards as indicated by the upward wound path. This positioning of the body could have been a response to the first shot (anticlockwise rotation of the trunk and bending forwards) assuming the second shot followed the first after a short interval.
[27] Report of Dr Gilbert (19 November 2015) Exhibit C116, p 3 [3].
The Deputy Coroner made positive findings consistent with DA’s evidence to the extent that was corroborated by the evidence of Dr Gilbert. Where DA’s evidence was not supported by what was established by Dr Gilbert’s evidence, the Deputy Coroner declined to make findings that the incorrect beliefs that DA held were correct, or indeed that DA could be conclusively said to have held those incorrect beliefs.
The first and second impugned statements at [14.31] are consistent with Dr Gilbert’s evidence of Mr Kuskoff’s movements between the first and third shots fired by DA. They were open on the evidence to have been made by the Deputy Coroner.
It was not disputed that the manner in which Mr Kuskoff was presenting himself to DA, immediately before and during the firing of the three shots, is a circumstance of his death. It is a factual matter about which a finding or findings might be made.
The appellants submit that the impugned words in [18.10] are inconsistent with the account given by DA of what occurred following the first shot, and the finding that DA was a credible witness. DA’s evidence was that he perceived Mr Kuskoff to “shrug”. Dr Gilbert’s assessment was that the trajectory of one of the wounds was consistent with Mr Kuskoff having turned 180 degrees or thereabouts, upon being shot through the left arm into his body. That explained how a subsequent shot (either the second or the third[28]) entered his body through his back. It is evident, however, that DA acknowledged the possibility that the “shrug” represented Mr Kuskoff turning anti-clockwise in response to being hit by a bullet from DA’s firearm.
[28] The evidence was that one of the three shots did not hit Mr Kuskoff but hit a fence behind him.
The impugned statements in paragraph [19.17][29] amount to the failure to make a finding. A failure to make a finding can give rise to an appeal and the subject matter of this finding, DA’s state of mind at the time of each of the second and third shots, is a circumstance attending Mr Kuskoff’s death that would make such a finding appealable. However, the failure to make the finding sought by the appellants was in this case consistent with Dr Gilbert’s evidence and, as the intervenor submitted, gave DA the benefit of the doubt to the extent that DA’s evidence was inconsistent with that of Dr Gilbert.
[29] The second, fourth, fifth and seventh impugned statements.
Conclusion regarding appeal grounds one to four
Appeal grounds one to four inclusive fail because the statements in question are not findings for the purposes of s 27, and in any event were statements consistent with the evidence.
Procedural fairness – appeal ground five
The appellants submitted that it was a denial of procedural fairness to DA by the Deputy Coroner that he was not given the opportunity to respond to the conclusion that DA ought to have reflected longer before firing the second and third time.
It is well-established that conducting an inquest carries the obligation to afford procedural fairness to a person whose interests may be adversely affected by the findings. In Annetts v McCann,[30] an inquest was held to inquire into the circumstances of two young men who died in the outback after leaving a station at which they were working. The Coroner had declined to afford Mr Annetts’ parents an opportunity for a closing submission in circumstances in which it was to make a finding that reflected adversely on their reputations. The parents’ obtained a writ of prohibition and mandamus but it was discharged by the Full Court of the Supreme Court of Western Australia and the parents appealed to the High Court. Mason CJ, Deane and McHugh JJ found that “their legal entitlement is confined to making submissions in respect of matters which may be the subject of adverse findings against them personally or against the deceased.”[31] Brennan J (as he then was) said: [32]
. . . The nature of the power to make findings that are unfavourable (whether such findings are incorporated into the written inquisition or into a rider) is such as to import the requirement to accord natural justice as a condition governing the exercise of that power. Prima facie, before a finding is made, it is incumbent on a coroner to accord natural justice to any person upon whose conduct the coroner’s finding may reflect unfavourably.
Personal reputation has now been established as an interest which should not be damaged by an official finding after a statutory inquiry unless the person whose reputation is likely to be affected has had a full and fair opportunity to show why the finding should not be made.
[30] (1990) 170 CLR 596.
[31] Annetts v McCann (1990) 170 CLR 596 at p 601.
[32] Annetts v McCann (1990) 170 CLR 596 at p 608.
As is evident from Brennan J’s observations, what will determine whether the obligation has been discharged is referable to the potential for unfavourable findings. The content of the obligation differs when the proceedings have an inquisitorial character compared to those the focus of which is a specified allegation of wrong-doing. In Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation, Kitto J said of procedural fairness;[33]
As Tucker L.J. said in Russell v Duke of Norfolk in a passage approved by the Privy Council in University of Ceylon v Fernando, there are no words which are of universal application to every kind of inquiry and every kind of tribunal: “the requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with , and so forth”
[33] (1963) 113 CLR 475 at p 504.
In Musumeci v Attorney General of NSW & Anor [2003] NSWCA 77 the majority of the Court of Appeal considered that the discharge of the duty entailed the witness being shown the whole of the brief of evidence at the outset of the inquiry because the Coroner had already indicated to the witness that there was potential for the Coroner to make an adverse finding with respect to the witness’ contribution to the death of the person the subject of the inquest. However, Kelly J observed in Onuma[34] that the coroner was not required to anticipate his or her findings and recommendations and put them in a preliminary fashion to the witness, in circumstances in which the witness was on notice of the specific issue and was given an opportunity to adduce evidence and make submissions about it.
[34] (2011) 111 SASR 382 at p 399-400, [98]-[99].
There are several difficulties with the appellants’ submission that procedural fairness was not afforded to DA. Firstly, the Deputy Coroner did not reach the conclusion that DA ought to have reflected longer between his first and subsequent shots. His Honour said, at [18.10], that the question of DA’s reflection was a matter that was “naturally br[ought] into question”, and, at [19.17], that he was “unable to determine” whether DA gave himself sufficient opportunity to reflect.
Secondly, given DA’s evidence and notwithstanding that it was not part of the Deputy Coroner’s role to put any preliminary conclusions to DA, it is clear that there was also nothing to be gained by putting the observations that were ultimately made by the Deputy Coroner in those exact terms to DA. It could not have changed the course of the evidence, which was that DA fired three shots successively with only a short interval between each shot. The Deputy Coroner identified that where a person is shot multiple times, there will “naturally” be a question as to whether any shot fired after the first is thought to have been necessary or in fact necessary. On the evidence that was before him, the Deputy Coroner was unable to make a definitive conclusion about either. DA had been given ample opportunity to give evidence about the first issue, and had done so. The evidence of the second issue was beyond DA’s ability to say at the time because of the restricted visual conditions. Dr Gilbert’s evidence was informative on that issue.
DA gave a fulsome account of his knowledge of those circumstances, in a statement and then in his oral evidence. The Commissioner’s opportunity to address the Deputy Coroner more generally was provided through the Commissioner’s counsel’s closing address and submissions on the issues raised.
The Deputy Coroner’s statements do not reflect adversely upon DA. The Deputy Coroner found DA to be a witness of truth and did not make findings about DA where DA’s evidence had the potential for inconsistency with the other evidence that the Deputy Coroner found compelling, including that of Dr Gilbert. The fifth ground of appeal fails.
Rule in Browne v Dunn – appeal ground six
The appellants submitted that the rule in Browne v Dunn had not been adhered to. The rules of evidence do not apply in coronial proceedings. Those rules, and in particular the rule in Browne v Dunn, have been developed within the context of civil adversarial proceedings. In Jardein Pty Ltd v Stathakis, the Full Court of the Federal Court in a joint judgement explained the rule in the following way:[35]
[35] [2007] FCAFC 148 at [27]-[32] (North, Weinberg and Middleton JJ).
Where a party intends to contradict or challenge the testimony of an opposing party’s witness, the party is obliged to put that witness on notice that his or her account will be challenged: Browne v Dunn (1893) 6 R 67. This gives the witness an opportunity to respond to the allegations. The reason this is done is as a matter of basic fairness. See Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 per Hunt J.
Adherence to the rule in Browne v Dunn also gives the party calling the witness the chance to adduce supporting evidence which might not otherwise have been led.
Compliance with the rule requires only that the substance of the contrary version is put to the witness, and not every detail of the challenge: White Industries (Qld) Pty Ltd v Flower & Hart (a firm) (1998) 156 ALR 169 at 217 per Goldberg J.
In a civil case the consequences of a failure to observe the rule will vary. However, they will usually be related to the central object of the rule which is to secure fairness.
In Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219 Mahoney JA said (at 236–237):
"This kind of problem may arise at different times in the litigation. It may arise during the trial. Thus, where a party fails to cross-examine a witness at all or on a particular matter, it may be prudent for the trial judge at the time to draw the attention of counsel in an appropriate way to the effect this may have on the later conduct of the trial. It may be that the question arises at a later stage in the trial when counsel seeks to call evidence contradicting the witness or discrediting his evidence, or seeks to address upon the basis that the witness' evidence is untrue. The trial judge may then have to determine what course should be followed. Sometimes the interests of justice may be served by having the witness recalled for cross-examination. Sometimes the circumstances may be such that the only way in which justice can be achieved is by directing that, for example, it is not open to counsel, in address, to make such suggestion. What is to be done will depend, as I have said, upon the circumstances of the case."
A possible consequence of a breach of the rule may be that the party in breach will be prevented from suggesting that the witness’ testimony should be disbelieved. Another possible consequence will be the exclusion of evidence that challenges the witness’ account with respect to those matters upon which there was no cross-examination. A third possible consequence will be to permit the witness to be recalled so that the breach can be remedied. One thing is clear. The rule is not simply to be ignored.
The rule in Browne v Dunn expresses an obligation attaching to a party directed at ensuring fairness to the other party. As the nature of an inquest is different, the issue is properly addressed as an incident of the obligation to afford procedural fairness.[36] As such, the issue has already been addressed. Neither DA nor the Commissioner has established that any unfairness was perpetrated in respect of the opportunities afforded to DA to give his account of what occurred. The appellants’ sixth ground of appeal is not made out.
[36] Marelic v Comcare [1993] FCA 599 at [14].
Was there a suggestion of criminal liability?
The appellants’ grounds of appeal did not expressly allege that the impugned statements exceed jurisdiction insofar as they breached the prohibition against suggestions of criminal or civil liability. However, this aspect of the appellants’ case was argued in submissions both as a ground of appeal and of review.
The prohibition against suggestions of criminal or civil liability is set out in s 25(3) of the Coroner’s Act 2003 as follows:
25 – Findings on inquests
. . .
(3)However, the Court must not make any finding, or suggestion, of criminal or civil liability
Consistent with what has been said above regarding the taxonomy of statements in a Finding on Inquest, a suggestion of criminal or civil liability is necessarily not a finding, as that which is a mere suggestion does not have the characteristic of being conclusory. As Blue J put it in Bell v Deputy Coroner:[37]
Subsection 25(3) refers to a “finding” or “suggestion” of liability. A “finding” is a determination that a liability exists; a “suggestion” is a statement that a liability may exist.[38]
[37] [2020] SASC 59 at [525].
[38] Perre v Chivell [2000] SASC 279, (2000) 77 SASR 282 at [56]-[57] (Nyland J).
Accordingly, the appellants’ contentions regarding the suggestions of liability are properly raised only within the judicial review proceedings.
The appellants do not succeed on their appeal.
The Judicial Review
The appellants (the applicants in the judicial review) brought judicial review proceedings to challenge part of the Deputy Coroner’s discussion of the subject of “extremity shooting” in [20.4] of the Finding of Inquest under the heading “Recommendations”. Subsequently, the appellants were provided leave to amend their grounds to address the possibility that certain statements in the body of the documents might be found, contrary to their submissions, not to be amenable to appeal but amenable to judicial review.
The specific statements complained of in this regard were various statements identified in the appeal in sections 14, 18 and 19 of the Finding of Inquest. There is sufficient overlap between the cohort of statements said to be impugned findings, dealt with earlier in this decision, and those said to be prohibited suggestions, to continue to refer to them as “the impugned statements”.
The appellants contend that the impugned statements and the discussion about extremity shooting in paragraph [20.4] of the Finding of Inquest exceeded the Deputy Coroner’s jurisdiction. The appellants seek declaratory relief in respect of each. Relief in the nature of certiorari, originally raised in the statement of grounds, was not pursued at the hearing. The concession has some significance. Declaratory relief is available with respect to a broader range of conduct than is available if one of the prerogative writs is pursued. The intervenor invited the Court to find that the impugned statements – separately or together – lacked the quality of a decision necessary for judicial review to lie. However, the impugned statements are better characterised as being a matter entertained by the Deputy Coroner that was argued to be beyond jurisdiction, in one of the several senses referred to in Craig v State of South Australia:[39]
Jurisdictional error is at its most obvious where the inferior court purports to act wholly or partly outside the general area of its jurisdiction in the sense of entertaining a matter or making a decision or order of a kind which wholly or partly lies outside the theoretical limits of its functions and powers…(emphasis added)
[39] (1995) 184 CLR 163 at p 177 (Doyle CJ).
It is evident that the impugned words bear no resemblance to a decision as described by Mason CJ in Australian Broadcasting Tribunal v Bond & Ors :[40]
Nonetheless other considerations point to the word having a relatively limited field of operation. First, the reference in the definition in s. 3(1) to "a decision of an administrative character made ... under an enactment" indicates that a reviewable decision is a decision which a statute requires or authorizes rather than merely a step taken in the course of reasoning on the way to the making of the ultimate decision. Secondly, the examples of decision listed in the extended definition contained in s. 3(2) are also indicative of a decision having the character or quality of finality, an outcome reflecting something in the nature of a determination of an application, inquiry or dispute or, in the words of Deane J., "a determination effectively resolving an actual substantive issue". Thirdly, s. 3(3), in extending the concept of "decision" to include "the making of a report or recommendation before a decision is made in the exercise of a power", to that extent qualifies the characteristic of finality. Such a provision would have been unnecessary had the Parliament intended that "decision" comprehend every decision, or every substantive decision, made in the course of reaching a conclusive determination. Finally, s. 3(5) suggests that acts done preparatory to the making of a "decision" are not to be regarded as constituting "decisions" for, if they were, there would be little, if any, point in providing for judicial review of "conduct" as well as of a "decision".
[40] (1990) 170 CLR 321 at p 336.
However, for declaratory relief to be issued, this Court need only find that the impugned statements were beyond jurisdiction.[41]
Whether the impugned statements were beyond jurisdiction because they amounted to prohibited suggestions
[41] Supreme Court Act 1935 (SA), section 31.
It is convenient to deal first with the contention that the making of the impugned statements exceeded the Deputy Coroner’s jurisdiction. This contention was effectively an alternative to the primary submission, made on the appeal, that the impugned statements were findings amenable to appeal. The appellants’ submission on judicial review was that the impugned statements were prohibited suggestions for the purpose of s 25(3) of the Coroner’s Act 2003.
The appellants submitted that the impugned statements in the Finding of Inquest concerning the shots fired by DA, taken separately or together, were findings that suggested that DA may be criminally liable for Mr Kuskoff’s death. The suggestion was said to arise because the Deputy Coroner’s statements cast doubt upon the availability to DA of the defence of self-defence as set out in s 15(1) of the Criminal Law Consolidation Act 1935 (SA).
A suggestion is an example of a statement that lacks the attribute of being conclusory necessary for it to constitute a finding. Therefore, whilst a finding of liability gives rise to a right of appeal, a mere suggestion of liability, though prohibited by s 25(3), is not an appealable finding. Nor can a finding of fact itself constitute a suggestion of liability, though such a finding may be necessary for a conclusion regarding liability, as Nyland J stated in Perre v Chivell:[42]
…The mere recital of relevant facts cannot truly be said, of itself, to hint at criminal or civil liability. Even though some acts may not seem to be legally justifiable, they may often turn out to be just that. For example a shooting or stabbing will, in some circumstances, be justified as lawful self-defence. As I have stated, criminal or civil liability can only be determined through the application of the relevant law to the facts, and it is only the legal conclusions as to liability flowing from this process which are prohibited by s 26(3).
[42] (2000) 77 SASR 282 at p 295 [57].
Given that historically a coroner had the power to commit a person for trial it may seem anomalous that the modern scheme establishing the scope of the coroner’s function proscribes suggestions of liability. The prohibition against a suggestion of criminal or civil liability was established in SA in 1952 and represented a fundamental change in the role of the coroner limiting the coroner’s criminal jurisdiction. Nyland J set out the history of the coroner’s criminal jurisdiction in Perre v Chivell[43] prior to this fundamental change, and then described the history of s 26(3) of the 1975 Act. That provision was relevantly identical to that now contained in s 25(3) of the current Act. Her Honour said:[44]
[43] (2000) 77 SASR 282 at p 287-289 [21]–[28].
[44] Perre v Chivell (2000) 77 SASR 282 at p 289-290 [29]–[36].
At that time [1952], several arguments were made in favour of abolishing the coroner's "criminal jurisdiction". It was noted that the laws of evidence were not strictly observed in the coroner's court, thus a coroner's finding of guilt or a decision to commit a person for trial might be based on evidence which would not normally be admissible in a court of law. Furthermore, in a coroner's court, a person could be placed in the position of being committed for trial, and in effect be declared guilty without having received any prior notice of any charge against him or her. These concerns led to the passing of the Coroners Act Amendment Act 1952 which removed s 19(b)(iii) of the Coroners Act 1935(supra) and inserted a number of new provisions. These included s 20a which required the coroner to adjourn an inquest when a person was charged with an offence relating to the death in question, and s 20c which prohibited the coroner from committing any person for trial. Importantly, s 20b of this Act stated:
“20b. A coroner shall not make any finding upon an inquest that any person is guilty of any offence in connection with the fire or death which is the subject of the inquest." (emphasis added)
The Coroners Act was further amended in 1969, but none of the amendments made at that time is relevant to the present discussion.
In 1975, the three preceding Acts were repealed by the Coroners Act 1975. Section 26(2) of this Act reinstated the coroner's power to commit a person for trial. Section 26(3) was, however, then included substantially in its present form.
It is curious that the power to commit was at that time returned to the Coroner and there is little to be gleaned from the second reading speeches of the Legislative Council as to why that occurred. The only reason that appears (Hansard 12 March 1975, p 2809) is that it would be more convenient for the coroner to commit a person for trial when it is apparent, by the end of the inquest, that a charge should be made, rather than having to conduct committal proceedings covering the same grounds. It was suggested that, in any case, the coroner would rarely use such a power (at p 2810). It is also not clear from the debates why s 26(3) was worded so as to prohibit any finding, or suggestion, of criminal or civil liability rather than the previous version which simply prohibited a finding that a person is "guilty of any offence".
All that the Attorney General (as he then was) the Hon L J King said, was as follows (Hansard 19 February 1975, p 2448):
"Clause 26 continues in operation, substantially, the present law in this State in that the coroner is not required or indeed permitted to make findings suggesting civil or criminal liability on the part of any person."
Further amendments to s 26 occurred in 1981 and 1990. The Coroners Act Amendment Act 1981 repealed s 26(2), once again removing the coroner's power to commit a person for trial. On this occasion, the Attorney General, the Hon K T Griffin said in the course of the second reading speech (Hansard 17 September 1981, p 973):
"Concern has been expressed about the power of a coroner to commit a person for trial at the conclusion of a coronial inquest. That power was included in 1975, but is now recognised to be inappropriate having regard to the procedures and methods of inquiry in a coronial inquest and those which apply in a normal preliminary examination. The Bill therefore proposes amendments which remove the power of a coroner to commit for trial."
The prohibition against findings of criminal or civil liability in s 26(3) remained. Finally, the Coroners Act Amendment Act 1990 further amended s 26(3) by substituting the word "must" for "shall". This amendment appears to have been directed at removing the use of the outdated word "shall" from this and other Statutes rather than strengthening the prohibition in the section and does not therefore assist in resolving the present issue.
Over the years therefore there have been changing views about the desirable extent of the coroner's criminal jurisdiction. The debate tends to arise because "[d]eterminations of culpability are an inevitable corollary to the process in which findings of causation are made" (Halsbury's Laws of Australia Vol 20, p 84). Nevertheless, the general trend has been towards restricting the coroner's criminal jurisdiction so as to prohibit findings of guilt and the committal of persons for trial. The trend in South Australia has been largely mirrored by legislation in the other States and Territories of Australia.
What constitutes a suggestion of liability?
The prohibition is directed at liability which necessitates both the factual basis and the unlawful character of the facts to be suggested. Further, whilst a suggestion requires less than a finding it does not mean anything from which a conclusion may be inferred through further intermediary steps of reasoning or further factual findings. As Blue J stated in Bell v Deputy Coroner:[45]
Subsection 25(3) prohibits the Court making a finding or suggestion of “liability”: it does not prohibit the Court making findings of fact that comprise one or more elements that may give rise to liability without a conclusion that liability arises or may arise.[46] However, if the Court made a series of findings of fact which encompassed each and every element that gives rise to liability, that would probably be tantamount to a finding of liability even if the Court did not explicitly draw the final conclusion that liability exists.
[45] [2020] SASC 59 at [524]–[531].
[46] Perre v Chivell (2000) 77 SASR 282 at p 295-296 [54]-[57] (Nyland J).
In Keown v Khan[47] Callaway LJ (with whom Ormiston and Batt JJA agreed) said: [48]
It follows that a person who kills necessarily contributes to the cause of death and that that is none the less true where the killing is in lawful self-defence. A coroner is not concerned with the latter question but will ordinarily set out the relevant facts in the course of finding how death occurred and the cause of death. The facts will then speak for themselves, leaving readers of the record of investigation to make up their own minds about lawful self-defence or any similar issue.
[47] [1999] 1 VR 69.
[48] [1999] 1 VR 69 at [17] (Citations omitted).
The Deputy Coroner echoed this in his observation, at [1.18], the Court is “not precluded from making findings of fact and findings in relation to the state of mind of the officer who fired the fatal shot or shots at the time those shots were fired, from which findings the reader might independently conclude that a criminal offence has or has not been committed.” It engages the necessary application of the legal principles to the facts found to constitute a suggestion of liability, as described by Nyland J in Perre v Chivell as follows:[49]
A finding of criminal or civil liability requires the application of the relevant law to the facts in order to determine whether the essential elements of a given crime or civil obligation have been made out.
[49] (2000) 77 SASR 282 at p 295 [56].
The test is not whether liability may be inferred, which is an action of the reader, but whether it has been suggested, which is an action of the speaker. Contrary to the appellant’s submissions, the statements considered individually or by reference to their combined effect cannot, of themselves, amount to a suggestion of liability unless those statements contain or are the subject of an application of the law by the Deputy Coroner.
Did the complained of statements constitute suggestions of liability?
The first suggestion is said to have been made in [14.31] as follows:
. . . Mr Kuskoff was disabled by the first shot and the reality was that there was no need for a second or third shot. I do not believe that Mr Kuskoff still presented in a threatening manner after the first of DA’s shots.
This statement reflects an acceptance of Dr Gilbert’s evidence that after the first shot, Mr Kuskoff turned nearly 180 degrees after the bullet passed through his left arm and into his torso. Mr Kuskoff then had his back to DA, though DA’s evidence was that his belief was that Mr Kuskoff was still presenting to him and had not “gone down”. The Deputy Coroner’s statement of belief was not a statement that suggested that DA knew or could have known that, or indeed anything regarding DA at all. The first statement falls short of suggesting liability on the part of DA.
Two of three impugned suggestions in [18.10] are:
The first shot hit Mr Kuskoff in his arm and then penetrated his body and incapacitated him, such that ‘he was at that point rendered incapable of any further act of aggression”
and
I do not believe that [Mr Kuskoff] was simply standing there during DA’s second and third shots.
Similarly, these statements do not suggest civil or criminal liability on DA’s part. They are statements of fact, taken or inferred from Dr Gilbert’s evidence, as to what can be ascertained about what was occurring to Mr Kuskoff between the time of the first and third shots. There is no application of the law to them.
The third impugned suggestion in [18.10] is:
This naturally brings into question whether the second and third shots were objectively necessary and whether DA should have more carefully reflected on what the result of the first shot was before firing another.
This was also complained of as a finding and has been dealt with as such at paragraph [55] above. Framed as it was, the statement is properly characterised as raising two issues that have not, at that point in the Deputy Coroner’s reasoning, been resolved. The first is whether the second and third shots were objectively necessary. The use of the word “objectively” indicates that the issue to be resolved is separate and distinct from DA’s subjective view as to whether the second and third shots were necessary. The second issue raised is whether more careful reflection on DA’s part might have provided him with more information upon which to decide to shoot a second or third time. Neither of these issues suggests liability on DA’s part.
In [19.17] of the Finding of Inquest, the Deputy Coroner said that he was “unable to determine whether or not DA gave himself sufficient opportunity to reflect on what his first shot had achieved before he fired his second and third shots.” This statement, far from suggesting liability, constituted a direct expression of an inability to reach a conclusion. The decision to make such a statement may have arisen in response to the direct invitation by counsel for the appellants to make a finding or a statement that DA “was justified in firing each of the first, second and third shots in that the firing of each of those shots was reasonably proportionate to the threat as DA reasonably perceived it to exist.”
In my view, the impugned statements do not amount, either separately or together, to a suggestion of liability on the part of DA. Taking the statements together, it can be seen that the two areas of focus are, firstly, DA’s belief at the time of firing the second time as to the threat presenting to him and AM and, secondly, the period of time he allowed to elapse between firing the first and second shots.
As to the first of these issues, the statements fall short of assigning a belief to DA. This deliberate choice on the part of the Deputy Coroner did not meet the appellants’ request, made at the hearing, for a finding that was consistent with the defence of self-defence being made out. But nor did it entail a conclusion or even a suggestion that the defence was not made out. Rather, it signalled that the Deputy Coroner was not satisfied that he knew, on the evidence before him, what DA believed about the threat presented to him by Mr Kuskoff.
As to the second of the issues, the Deputy Coroner’s statement was that the firing of a second shot when the consequences of the first are not fully appreciated “naturally” raised the question of whether the second shot could be said to have been fired in circumstances of an enduring threat. The raising of that question does not amount to a suggestion that DA’s second shot was not proportionate to the threat such as to cast doubt upon whether DA has available to him the defence of self-defence if such an allegation were made. It did not suggest that he was liable either civilly or criminally for Mr Kuskoff’s death. Indeed, the making of “allowances” referred to in [19.17] demonstrates the Deputy Coroner’s acknowledgement of the gaps or inconsistencies in the evidence that mean that a conclusion is not available. Again, there is no attempt on the part of the Deputy Coroner to apply any legal obligation or prohibition to DA’s conduct.
Further, the Deputy Coroner’s statements must be understood against the backdrop of what was being submitted by the appellants at the inquest, and on appeal. The appellants submitted at the inquest that the appropriate findings were ones that approached an exoneration of DA from criminal liability. The appellants’ written submissions complained that the Deputy Coroner should have made statements to the effect that DA’s conduct was a lawful and reasonable and proportionate response to the threat that was genuinely and reasonably perceived.
Therefore, I would not make the declarations sought in respect of the impugned statements or any of them.
Extremity shooting
The appellants complained that the text in the Finding of Inquest at [20.4] concerning the SA Police policy in relation to the use of firearms and the targeting of the centre of seen body mass and extremity, exceeded the Deputy Coroner’s jurisdiction. The appellants submitted that the Deputy Coroner’s treatment of this topic did not constitute a recommendation and in particular was not a recommendation that might prevent or reduce the likelihood of an event similar to that which resulted in Mr Kuskoff’s death.
The Deputy Coroner’s words are set out at paragraph [12] of this decision.
The extremity shooting policy arose because the Deputy Coroner considered that the deliberate nature of the killing was a relevant circumstance of Mr Kuskoff’s death. At [1.18], the Deputy Coroner said:
It will become evident during the course of these findings that the act that resulted in Mr Kuskoff’s death was a deliberate one in the sense that the officer who fired the fatal shots deliberately did so with the intent that Mr Kuskoff be struck by the projectiles and in the realisation that Mr Kuskoff would probably suffer a fatal wound or wounds as a result. In essence DA’s explanation for so doing was self-defence and the defence of the other STAR officer AM whom he was with. I keep in mind the prohibition set out in section 25(3) of the Coroners Act 2003 that this Court must not make any finding or suggestion of criminal liability. That is not to say, however that this Court is precluded from making findings of fact in relation to the state of mind of the officer who fired the shot or shots at the time those shots were fired, from which findings the reader might independently conclude that a criminal offence has or has not been committed.
The Deputy Coroner proceeded to set out the law of self-defence in s 15 of the Criminal Law Consolidation Act 1935 and a mandatory SAPOL General Order to the effect that a policer may only use a firearm in certain circumstances. At [1.21], the Deputy Coroner said:
The evidence also revealed that there is in existence, and was at the time within which this inquest is concerned, a policy within SAPOL against the use of extremity shooting. Extremity shooting refers to aiming the firearm and firing at a limb of a person as distinct from firing at a person’s centre mass. In practical terms the centre mass would almost invariably be the person’s torso. Tendered to the court was documentation concerning the subject of extremity shooting. This material consisted of a number of memoranda promulgated and signed by senior police officers. The various memoranda which appear to be dated between 2005 and 2008 make it plain that extremity shooting is ‘not considered a tactical option’. One memorandum mandates the reinforcement of the fact that firearms procedures for general police officers do not include ‘extremity shooting’.
The Deputy Coroner went on to describe Dr Gilbert’s evidence as to what would have occurred if a bullet had struck Mr Kuskoff’s upper legs, or his lower legs. His Honour went on to say, at [2.27]:
In the event it has not been necessary to reach firm conclusions about these issues as I do not believe that if it was necessary for DA to have fired at Mr Kuskoff at all it would have been a realistic proposition for DA from a distance of 141 metres in the conditions that prevailed and using a sight that provided only limited vision to have aimed at anything other than the centre mass of Mr Kuskoff. And as seen earlier, aiming at the centre mass of the target was in any event SAPOL policy.
The appellants’ case was that the impugned words in [20.4] – whether characterised as a recommendation or not - were beyond the Deputy Coroner’s jurisdiction because they were not sufficiently related to a cause or circumstance of Mr Kuskoff’s death.
It can be seen from the manner in which the issues were raised and presented to the Deputy Coroner that the reasons for each action taken by DA were squarely within the circumstances of Mr Kuskoff’s death. They were considered and rejected by the Deputy Coroner as an inquiry into whether it was tenable to propose that DA might have tried to incapacitate Mr Kuskoff without fatally shooting him. That reasonably gave rise to consideration of the directives and advice given to SAPOL officers. The impugned words make no recommendation about SAPOL’s policy position but observe that it will not account for each and every situation in which an officer finds himself or herself in the field. It might be taken as a cautionary note, perhaps, that adherence to the policy is not a guarantee of the immunity from liability simply because it does not cover every situation.
Whether the impugned words in [20.4] can be said to amount to a recommendation is not immediately obvious. The words come under the heading “Recommendations” but that is not determinative. There is no further signal such as the Deputy Coroner used in the earlier paragraph which concludes with the words “I recommend accordingly”. The impugned words do not go so far. They merely signal that police in the field “bear in mind” that there may be occasions in which shooting the torso with an intention to kill may not “be regarded as” necessary and reasonable or a proportionate response to the threat posed by the person. This falls short of a recommendation within the meaning of s 25 of the Act.
The appellants did not seek to challenge the impugned statements in [20.4] by way of appeal against a recommendation. Such an approach was correct. In Saraf & Anor v Johns,[50] an appeal against a recommendation was allowed because of the relationship between a recommendation and a finding for which there was no evidence or that was not reasonably open on the evidence.[51] However, in Onuma the Court departed from the approach in Saraf insofar as the Court in Onuma rejected the contention that recommendations could be appealed. In my view, the more recent approach is to be preferred. The reasoning in Onuma has a strong grounding in the text of the Act and promotes the objects and purpose of the Act as a whole. By way of amplification of that reasoning, a recommendation neither authorises nor commands any action, nor can the overturning of a recommendation prohibit action on a recommendation. A recommendation that, for example, a regulatory body investigate the actions of a member of a profession does not compel or authorise that investigation. The overturning of such a recommendation does not preclude such an investigation commencing or concluding. A recommendation for legislative reform does not authorise the development of a Bill; no such authorisation is required. Nor can there be any guarantee that the Parliament will pass a Bill or effect the legislative change recommended by the Coroner. Nor would the overturning of such a recommendation have a direct effect on such a legislative process. The overturning of a recommendation is ineffectual and this tells against its treatment as a statement to which the rights of appeal attach. A recommendation may be acted upon or not, and as such no discernible consequence, such as is necessary to attract a right of challenge, attaches to it. In light of the way in which the impugned statements are cast as a discussion of an issue that arose, the better view is that they do not constitute a recommendation.
[50] (2008) 101 SASR 87 (‘Saraf’).
[51] (2008) 101 SASR 87 at p 96 [23].
Nevertheless, the Deputy Coroner’s statements were required to relate to the cause or circumstances of death. The cause and circumstances of Mr Kuskoff’s death have already been the subject of some consideration in the decision of this Court in Commissioner of Police v Coroners Court of South Australia; Commissioner of Police v Australian Lawyers Alliance Ltd.[52] In considering the Commissioner of Police’s appeal and judicial review in respect of various rulings made during the course of the inquest into Mr Kuskoff’s death, the Court said, [53]
. . . A coronial inquest does not provide for “accountability” otherwise than by making findings as to the causes and circumstances of a death. Of course those findings may lead to other forms of accountability…. It is important to understand in this context that the jurisdiction conferred by section 13 requires the holding of an inquest into a death in custody whether the cause and circumstances of that death are the result of the proper exercise of police or correctional powers or the result of the excessive, capricious or improper exercise of those powers.
[52] (2018) 130 SASR 321 (Blue, Stanley and Nicholson JJ).
[53] (2018) 130 SASR 321 at p 337 [50].
The impugned statements in [20.4] are properly characterised as relating to a circumstance of Mr Kuskoff’s death. Whether DA was adhering to a policy of extremity shooting is a circumstance of Mr Kuskoff’s death, and further, remarks about the reach of that policy are within the scope of those circumstances. The impugned statements were not made outside the scope of the Deputy Coroner’s power and I would not grant the application for declaratory relief.
Standing
The judicial review was commenced jointly by the Commissioner and DA. Standing is determined by reference to the particular claims made on the review. In respect of the statements allegedly implying liability about which the appellants complain on the judicial review, only DA’s interests are sufficiently engaged to afford standing. DA has a “real interest” and the issue is not hypothetical. The Deputy Coroner’s treatment of DA’s role in Mr Kuskoff’s death represents a legal controversy in the sense intended in Ainsworth & Anor v Criminal Justice Commission.[54] However, whether or not the Deputy Coroner has suggested DA to be criminally or civilly liable for his actions in the particular circumstances of Mr Kuskoff’s death does not sufficiently engage the Commissioner of Police’s interests. Whilst I have found that the Deputy Coroner did not suggest liability, it is evident that any liability that was potentially in question was that arising from DA’s decisions as to when to discharge his firearm. There was no proposition or theory advanced by any person during the inquest that the Commissioner of Police as DA’s commanding officer (in a hierarchical sense) was in control of DA’s actions in any direct sense.
[54] (1992) 175 CLR 564 at p 581-582.
I would not grant the Commissioner standing in relation to that aspect of the judicial review.
This second contention on the judicial review concerned the Deputy Coroner’s statements regarding extremity shooting in [20.4]. Had the extremity shooting policy resulted in a recommendation, the Commissioner of Police’s interests would likely have enlivened his standing in the matter. However, the mere observation by the Deputy Coroner, that the document provided to the Court containing a extremity shooting policy for officers did not provide officers with a guidance as to all decisions that they may face in the field, did not enliven the Commissioner’s standing. The statement was neither a finding, nor a recommendation, and it did not adversely affect the interests of any person. Neither DA nor the Commissioner of Police has standing in respect of that statement in the context of the Finding of Inquest.
Orders
I would dismiss the appeal and decline to make the orders sought in the application for judicial review.
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