Hytch v O'Connell

Case [2018] QSC 75

SUPREME COURT OF QUEENSLAND

CITATION:

Hytch v O’Connell [2018] QSC 75

PARTIES:

ROBERT PAUL HYTCH

(applicant)

v
DAVID O’CONNELL
(respondent)
ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND

(intervener)

FILE NO:

BS No 8603 of 2016

DIVISION:

Trial Division

PROCEEDING:

Application for judicial review

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

18 April 2018

DELIVERED AT:

Brisbane

HEARING DATE:

19 March 2018

JUDGE:

Applegarth J

ORDER:

The application for judicial review is dismissed

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND CONDUCT – REVIEW OF PARTICULAR DECISIONS – APPLICATION FOR JUDICIAL REVIEW – where the applicant seeks a judicial review of a Coroner’s findings that the applicant killed a missing person, then secreted her body and later disposed of it – whether findings liable to be set aside because of a lack of probative evidence

STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – GENERAL APPROACHES TO INTERPRETATION – where the applicant contends that an inquest was heard and determined under the Coroners Act 2003 (Qld) when it should have been conducted in accordance with the Coroners Act 1958 (Qld) – where the issue turns on the meaning of “death” in s 100(4) of the Coroners Act 2003 (Qld) – whether “death” in that section should be read as “death or suspected death” or given its plain and ordinary meaning


Coroners Act 2003 (Qld) ss 3, 7, 11, 28, 45, 71, 100
Coroners Act 1958 (Qld) ss 7B, 41, 43
Judicial Review Act 1991 (Qld) ss 20(2)(e), 23(g).

Annetts v McCann (1990) 170 CLR 596 cited

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 cited

Beale v O’Connell [2017] QSC 127 cited
Bermingham v Corrective Services Commission of NSW (1988) 15 NSWLR 292 cited
Briginshaw v Briginshaw (1938) 60 CLR 336 cited
Cody v J H Nelson Pty Ltd (1947) 74 CLR 629 cited

Crime and Misconduct Commission v Swindells [2009] QSC 409 cited
Fox v Percy (2003) 214 CLR 118 cited
Griffith University v Tang (2005) 221 CLR 99 cited

Helton v Allen (1940) 63 CLR 691 cited

Hurley v Clements [2010] 1 Qd R 215 cited
Leahy v Barnes [2013] QSC 226 cited
Marshall v Watson (1972) 124 CLR 640 cited

Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 cited

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 cited

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 cited

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 cited
R v Atwell ex parte Julie [2002] 2 Qd R 367 cited
Rv Hytch [2000] QCA 315 cited
R v The Central Cane Prices Board ex parte Colonial Sugar Refining Company Ltd [1917] St R Qd 1 referred to

Thomas v Attorney-General, Minister for Justice and Minister for Training and Skills [2017] QSC 308 cited

Waterford v The Commonwealth (1987) 163 CLR 54 cited

Wright v The State Coroner [2016] QSC 305 cited

COUNSEL:

G R Rice QC and R W Haddrick for the applicant

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Details
AGLC
Hytch v O'Connell [2018] QSC 75
Case
[2018] QSC 75
Decision Date

CaseChat Overview and Summary

The case of Hytch v O'Connell involved an application for judicial review by the applicant, Hytch, challenging a Coroner's findings that he had killed a missing person, secreted her body, and later disposed of it. The applicant sought to have the findings set aside on the basis that there was a lack of probative evidence. Additionally, Hytch argued that the inquest was conducted under the wrong legislation, namely the Coroners Act 2003 (Qld), when it should have been conducted under the Coroners Act 1958 (Qld). The crux of the argument hinged on the interpretation of the term "death" in s 100(4) of the 2003 Act, specifically whether it should encompass a "suspected death" or be given its plain and ordinary meaning.

The court was tasked with determining whether the Coroner's findings were reviewable due to the alleged procedural error and whether the definition of "death" in s 100(4) should be interpreted to include a "suspected death". The court examined the legislative context, the extrinsic material, and the implications of adopting the applicant's interpretation. It considered whether the applicant had demonstrated that the Coroner's findings were liable to be set aside due to the lack of probative evidence and whether the inquest should have been conducted under the 1958 Act.

The court found that the extrinsic material did not support the applicant's contention that the term "death" in s 100(4) should be interpreted to include a "suspected death". It reasoned that such an interpretation would have significant and unintended consequences, expanding the obligations to report and the jurisdiction of a coroner. The court concluded that the word "death" should be given its ordinary meaning in the statutory context. This interpretation aligned with the purposes of the Act and ensured that the legislation operated effectively. Consequently, the court dismissed the application for judicial review, upholding the Coroner's findings and the application of the 2003 Act in conducting the inquest.

Orders

Orders of the court

The application for judicial review is dismissed

Background

Background to the litigation

In my view, the extrinsic material does not require the extended definition of “death” for which the application contends to be adopted. This extrinsic material certainly does not suggest that the legislature intended the word “death” in what became s 100(4) of the Act to have the extended meaning for which the applicant contends with its potential for contention and uncertainty over whether something was a “suspected death” or not. Application of the definition in s 100(4) to the facts of this case The applicant does not assert that Rachel Antonio is dead and that her actual death (as distinct from her suspected death) was reported to a police officer before the commencement of s 100 of the 2003 Act. The applicant’s argument that the inquest was heard and determined under the wrong Act depends upon acceptance of the interpretation of s 100(4) which I have rejected. For completeness, I should mention some factual matters as to whether the applicant’s argument would have prevailed, had I adopted the interpretation for which he contends. Rachel Antonio went missing on the night of 25 April 1998. Her mother reported her “missing” at about 9.20 am on 26 April 1998. There is no evidence that her actual death was reported to police. Instead, the report that she was missing prompted searches for her and a police investigation, in the course of which suspicion fell upon the applicant. None of this means, and the applicant does not contend, that her “death” was “reported” to a police officer or coroner before the commencement of the 2003 Act. Even if, in context, what was reported as a missing person case aroused suspicions and the suspicion of her possible death, the 1958 Act is not engaged when a police investigation becomes one into a suspected death. The first limb of the definition of “pre-commencement death” in the 2003 Act requires a “death” to be reported to a police officer, not for a death or suspected death to become the subject of a police investigation after someone is simply reported to be missing. If I had concluded that the word “death” in s 100(4) extends to a “suspected death”, the applicant has not proven that a “suspected death” was reported. In a case in which a party seeks to demonstrate the absence of power, and seeks to prove that a “suspected death” was reported to police so that, on his argument, the 1958 Act applies, the fact which is alleged to engage the 1958 Act must be proven. This proceeding has had a lengthy interlocutory course, having been filed in August 2016. The applicant asserts that “the disappearance and suspected death of Rachel was reported to police in Bowen soon after her disappearance in 1998.” However, this submission is not supported by evidence, and when this point was taken by the intervener in written submissions, the applicant’s submissions in reply did not address the point. The evidence before me indicates that Ms Antonio’s disappearance was reported to police and that thereafter the police conducted an investigation which led them to suspect that she was dead. This does not mean that either her death or her suspected death was “reported to police”. Therefore, if “pre-commencement death” in s 100(4) has the interpretation for which the applicant contends, there is an inadequate factual basis to conclude that Ms Antonio’s “suspected death” (as distinct from her disappearance) was “reported to a police officer or coroner” before the commencement of s 100 of the 2003 Act. Arguments about whether conduct of the inquest under the wrong Act would have resulted in invalidity

Evidence

Evidence Before The Court

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Decision

Reasons for decision

There may, of course, be cases in which an actual death is reported to a police officer or coroner before the commencement of s 100 of the 2003 Act, and in relation to which an inquest is held before the commencement date. Both limbs of the definition may be engaged in the same case. However, each limb has separate work to do if “death” is given its ordinary meaning. The intervener’s argument, however, that the second part of the definition would have no work to do if “death” if given the expanded meaning for which the applicant contends is not persuasive. If the word “death” was given its expanded meaning, then the second part of the limb would apply to a case in which an actual death or suspected death was not reported, but police and coronial inquiries in relation to a missing person led to an inquest which was held before the commencement of s 100 of the 2003 Act. Conclusion about the meaning of the word “death” in s 100(4) of the 2003 Act in its statutory context The word “death” in s 100(4) should be given its ordinary meaning, rather than the extended meaning contended for by the applicant so as to include a “suspected death”. In summary:1.The interpretation for which the applicant contends requires additional words to be read into legislation which is a particularly strong thing to do where reading those additional words would have significant, and apparently unintended, consequences. If the word “death” in the Act was interpreted to mean “death or suspected death” then the obligation to report contained in Part 2 of the Act would be significantly expanded, as would the ordinary jurisdiction of a coroner to investigate a “reportable death”. If, however, the word “death” in Part 2 of the Act has its ordinary meaning but, on the applicant’s case, an extended meaning in Part 3, then this means that “death” has a different meaning in different Parts of the 2003 Act, and the question remains as to whether it has its ordinary or an extended meaning in the definition in s 100 of “pre-commencement death”, which appears in Part 6. 2.Part 2 of the 2003 Act has a workable operation if “death” is given its ordinary meaning. It also is not necessary to give the word “death” an extended or strained meaning in order for Part 3 of the Act to operate in accordance with the purposes of the Act. The 2003 Act works if the word “death” is given its ordinary meaning in Part 2 and Part 3. Such an interpretation permits an actual death to be investigated in accordance with the processes established by the 2003 Act and for a “suspected death” to be investigated in accordance with ss 11(5) and (6) of the 2003 Act. 3.The interpretation for which the applicant contends cannot satisfactorily explain the appearance of the words “a death or suspected death” in s 45(2). If “death” included “suspected death”, the words “or suspected death” in s 45(2) would be unnecessary. The legislature chose not to use the words “a death or suspected death” in s 100(4), whereas it used those words in s 45. 4.Even if it be assumed that the word “death” in some of the sections contained in Part 3 has an extended meaning so as to include a “suspected death”, this does not necessarily determine the meaning of “death” in s 100: a transitional provision in a different part of the Act which has a different purpose. The definition in s 100(4) is workable if “death” is given its ordinary meaning. 5.Reading the words “suspected death” into the definition in s 100(4) would create uncertainty and unsatisfactory consequences. It is unlikely that the legislature intended this. It is more likely that it intended the word “death” in the definition “pre-commencement death” in s 100(4) to have its ordinary meaning, so as to avoid such consequences.

Ratio Decidendi

Legal Principle Established

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