Jean Marie Priest v Deputy State Coroner
[2010] VSC 449
•7 October 2010
| IN THE SUPREME COURT OF VICTORIA |
AT MELBOURNE
JUDICIAL REVIEW AND APPEALS LIST
No. 01023 of 2010
| JEAN MARIE PRIEST | Plaintiff |
| v | |
| IAIN WEST (IN HIS CAPACITY AS DEPUTY STATE CORONER OF VICTORIA) and DEREK PERCY | First Defendant Second Defendant |
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JUDGE: | Ross J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 August 2010 | |
DATE OF JUDGMENT: | 7 October 2010 | |
CASE MAY BE CITED AS: | Jean Marie Priest v Deputy State Coroner & Anor | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 449 | Revised 15 October 2010 |
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Judicial review – Coroners Act 2008 – challenge to two rulings – first ruling alleged failure to have regard to propensity evidence – no jurisdictional error – Coroner not bound to have regard to the consideration – second ruling – s 57 privilege in respect of self incrimination – no invalidity due to failure to comply with s 57(3) – Project Blue Sky (1998) 194 CLR 355 – alleged failure to have regard to relevant consideration and having regard to irrelevant considerations – no jurisdictional error – certiorari discretionary – decline to exercise the discretion having regard to the conduct of the proceeding before the Coroner and the utility of granting the relief sought – application for relief dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff For the First Defendant | Mr S. Gillespie – Jones No Appearance | Theo Magazis & Associates No Appearance |
| For the Second Defendant | Mr C. Fairfield | Frank Randle, Lawyer |
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HIS HONOUR:
Background
The Plaintiff is the mother of Linda Jane Stilwell. Linda disappeared from the vicinity of Luna Park St. Kilda, Victoria on 10 August 1968. She was 7 years of age.
On 8, 9, 10 and 11 December 2009 an inquest was held into Linda Stilwell’s disappearance, before Deputy State Coroner Iain West (‘the first Defendant’ or ‘the Coroner’).
On 11 December 2009 the first Defendant made a ruling in relation to the removal of eleven witness statements from the Inquest Brief due to their lack of relevance to the inquest (‘the first ruling’). On the same day the first Defendant made a ruling in relation to compelling Mr Derek Percy (‘Mr Percy’) to give evidence at the inquest (‘the second ruling’). The inquest was then adjourned to a date to be fixed to allow the Plaintiff to appeal the first Defendant’s two rulings.
The Plaintiff sought judicial review pursuant to r 56.02 of the Supreme Court (General Civil Procedure) Rules 2005 and relief in the nature of certiorari and mandamus.
I note at the outset that the case was argued on the basis that the Coroner was to be regarded as a ‘statutory tribunal’ for the purpose of determining whether he had made a jurisdictional error enlivening certiorari. Both parties submitted that this was so and relied on the judgment of Gillard J in Korp v Deputy State Coroner[1] in support of that proposition.
[1][2006] VSC 282 (Unreported, Gillard J, 4 August 2006) [23].
In Craig v the State of South Australia[2] the High Court recognised the difficulty in distinguishing between jurisdictional and non-jurisdictional errors, but maintained the distinction. The High Court also held that drawing such a distinction required a different application as between tribunals exercising governmental powers and inferior courts. In relation to an administrative tribunal the High Court said:
“If … an administrative tribunal falls into error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.”[3]
[2](1995) 184 CLR 163, 177-180 (Brennan, Deane, Toohey, Gaudron and McHugh JJ). Also see Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82, 141 [163] (Hayne J); Kirk v Industrial Relations Commission: Kirk Group Holdings Pty Ltd v Workcover Authority of New South Wales (Inspector Childs) [2010] HCA 1 (Unreported, French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ, 3 February 2010) [66] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
[3](1995) 184 CLR 163, 179 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).
By contrast the scope of jurisdictional error is narrower in respect of an inferior court whose ordinary jurisdiction encompasses authority to decide questions of law, as well as questions of fact, involved in matters which it has jurisdiction to determine:
“The identification of relevant issues, the formulation of relevant questions and the determination of what is and what is not relevant evidence are all routine steps in the discharge of that ordinary jurisdiction. Demonstrable mistake in the identification of such issues or the formulation of such questions will commonly involve error of law which … will not, however, ordinarily constitute jurisdictional error. Similarly, a failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question within jurisdiction or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely in determining such a question will not ordinarily involve jurisdictional error.”[4]
[4]Ibid.
In the circumstances of this particular matter the result does not turn on the characterisation of the Coroner’s office and so I have proceeded on the basis of the parties’ agreed characterisation. But by doing so I do not wish to be taken to be necessarily accepting the proposition that coroners are to be regarded as tribunals for the purpose of determining the scope of jurisdictional error. In that regard I note that Korp’s case was decided prior to the passage of the Coroners Act 2008 (‘the Act’) and that s 89 of that Act established ‘The Coroners Court of Victoria’.
Before turning to the two rulings I propose to set out the legislative context and the key provisions of the Act.
The Coroners Court
The Coroners Court of Victoria is established by the Act.[5] It is a specialist inquisitorial court.[6] The Coroners Court consists of the coroners and registrars of the Coroners Court.[7] A ‘coroner’ is defined to mean:
(a)the State Coroner;
(b)the Deputy State Coroner;
(c)a magistrate or acting magistrate assigned to be a coroner under s 93;
(d)a person appointed as an acting Coroner under s 94.[8]
[5]s 89(1) of the Coroners Act 2008 (Vic) (‘the Act’).
[6]ss 1(d) and 89(4) of the Act.
[7]s 99(2) of the Act.
[8]s 3(1) of the Act.
The State Coroner is a judge of the County Court and the other coroners are either magistrates or acting magistrates.[9] Acting Coroners are former judges or magistrates of the High Court, a court created by the commonwealth Parliament, or a Victorian Court or of a Court of another State or a Territory.[10]
[9]ss 91(2), 92(2) and 93(1) of the Act.
[10]s 94 of the Act.
The objectives set out in Part 2 of the Act are intended to give guidance in the administration and interpretation of the Act.[11] Section 8 sets out the factors to which a person should have regard, as far as possible in the circumstances, when exercising a function under the Act, as follows:
(a)that the death of a family member, friend or community member is distressing and distressed persons may require referral for professional support or other support;
(b)that unnecessary lengthy or protracted coronial investigations may exacerbate the distress of family, friends and others affected by the death;
(c)that different cultures have different beliefs and practices surrounding death that should, where appropriate, be respected;
(d)that family members affected by a death being investigated should, where appropriate, be kept informed of the particulars and progress of the investigation;
(e)that there is a need to balance the public interest in protecting a living or deceased person’s personal or health information with the public interest in the legitimate use of that information;
(f)the desirability of promoting public health and safety and the administration of justice.
[11]s 6 of the Act.
Section 9 of the Act provides that the coronial system should operate in a fair and efficient manner.
The current proceedings arise out of an inquest into the death of Linda Stilwell.
The death of Linda Stilwell was a ‘reportable death’ within the meaning of s 4 of the Act. In the circumstances a coroner was obliged to investigate the death of Linda Stilwell (s 15) and to hold an inquest into her death (s 52(2)(a)).
The powers of a coroner conducting an inquest are set out in Division 2 of Part 5 of the Act (see ss 55 - 66). A coroner may –
(a)summon a person to attend as a witness or to produce any document or other materials;[12]
(b)inspect, copy and, subject to the Act and the rules, hold for a reasonable period anything produced at the inquest;
(c)order a witness to answer questions;
(d)exclude a person or class of person from an inquest;
(e)give any other directions and do anything else the Coroner believes necessary.[13]
[12]A coroner may issue a warrant to arrest a person if the person was summonsed by the coroner under s 55 and failed to attend before the coroner or produce the documents or other material specified in the summons: s 59 of the Act.
[13]s 55(2) of the Act.
Section 57 deals with privilege in respect of self incrimination. The terms of the section are set out later in this judgment.
A coroner may also give a person leave to appear as an ‘interested party’ if the coroner is satisfied that the person has a sufficient interest in the inquest and it is appropriate for them to be an interested party.[14] The rights of ‘interested parties’ are set out in s 66. An interested party may examine or cross-examine witnesses and make submissions. An interested party may also make a submission to the coroner specifying who the party considers to be a relevant witness and the coroner may consider that submission and determine whether that witness should be called.
[14]s 56 of the Act.
A coroner must conduct an inquest with as little formality and technicality as the interests of justice permit and in a way that, as far as practicable, makes the inquest comprehensible to interested parties and family members who are present.[15]
[15]s 65 of the Act.
Section 62 provides that a coroner holding an inquest is not bound by the rules of evidence and “may be informed and conduct an inquest in any manner that the coroner reasonably thinks fit”. Parts II, IIA and III of the Evidence (Miscellaneous Provisions) Act 1958 and (except as otherwise provided in the Act) the Evidence Act 2008 do not apply to the Coroners Court.[16]
[16]The practical effect of s 62(3) seems limited to the preservation of legal professional privilege and the provisions of s 65(3), 65(4) and 65(6) of the Evidence Act 2008, see ss 58 and 63(2) of the Act.
The Act does not affect the law or practice relating to legal professional privilege.[17]
[17]s 58 of the Act.
Section 64 provides that the coroner holding the inquest determines:
(a)the witnesses to be called; and
(b)the relevant issues for the purposes of the inquest.
Oral evidence provided at an inquest must be recorded in accordance with s 131 of the Evidence (Miscellaneous Provisions) Act 1958. Except as provided in ss 65(3), 65(4) and 65(6) of the Evidence Act 2008, a record of evidence provided to the Coroners Court is not evidence in any court of any fact asserted in it.[18] Subsections 65(3), 65(4) and 65(6) of the Evidence Act 2008 deal with the circumstances in which evidence of a previous representation can be admitted in a later civil or criminal proceeding.
[18]s 63 of the Act.
Section 67 of the Act provides that a coroner investigating a death must find, if possible:
(a)the identity of the deceased, and
(b)the cause of death; and
(c)the circumstances in which the death occurred (unless s 67(2) applies);[19] and
(d)any other prescribed particulars
[19]ss 67(2) of the Act is not applicable to the circumstances in this case.
I now turn to consider the two rulings which are the subject of the application before me.
The First Ruling
In the first ruling the Coroner excluded eleven statements on the basis that he was not satisfied that there were relevant to the inquest into the death of Linda Stilwell.
Before turning to briefly summarise the statements in question it is important to understand the context in which these statements are said to be relevant.
The excluded statements related to the deaths of five other children, namely: Christine Sharrock and Marianne Schmidt (Wanda Beach, Sydney 11 January 1965); Alan Redston (Curtin, ACT 28 September 1966); Simon Brook (Glebe, NSW 18 May 1968) and Yvonne Tuohy (Warneet, Victoria 20 July 1969).
Mr Percy was tried for the murder of Yvonne Tuohy and acquitted on the ground of insanity on 2 April 1970. He has been detained since that time, initially at the Governor’s pleasure and later under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. The Plaintiff contended that the evidence in the excluded statements identified certain similarities between the deaths of these five children and, consequently, implicated Mr Percy in their deaths. The Plaintiff submitted that the evidence showed that Mr Percy had the propensity to abduct, torture and kill children and that such evidence is ‘plainly relevant’ to the determination of what happened to Linda Stilwell. This submission was put having regard to the Coroner’s interim finding that Mr Percy was in the St Kilda area on the day Linda Stilwell disappeared.[20] In these circumstances the Plaintiff submitted (at para 2.3, submissions of 23 April 2010):
“It is unlikely that she had met another child abductor and killer aside from Mr Percy at that time. The coroner should at least consider that improbability. The objective combination of circumstances is overwhelming. The “signature” is more than apparent from the schedules to this submission. The statements referred to in the motion ought not to have been excluded from consideration by the corner as they establish circumstantial evidence from which the identity of the killer could be inferred.”
[20]Transcript of Proceedings, Upon the Body of Linda Stilwell (Coroners Court, Coroner I.T. West, 8 December 2009 – 11 December 2009) page 148, lines 18-24 (‘Tn (2009)’).
As I have indicated the Coroner excluded the statements on the basis that he was not satisfied they were relevant to the inquest with which he was dealing:
“I cannot be satisfied … that there is sufficient similarity in the circumstances surrounding the deaths of Yvonne Tuohy and Simon Brook when related to the abduction of Linda Stilwell to make the statements previously referred to relevant to this inquest and, accordingly, the listed statements will be removed from the inquest brief and not tendered in evidence.”[21]
[21]Ibid 190 lines 15-21.
A copy of the first ruling set out at Attachment 1 to this judgment.
The Plaintiff no longer presses the admission of three of the excluded statements (those of Wayne Gordes; Brian Swan and Mark Travers).[22] A brief summary of the other excluded statements is set out below.
[22]Transcript of Proceedings, Jean Marie Priest v Iain West (in his capacity as Deputy State Coroner of Victoria) and Anor (Supreme Court of Victoria, Justice Ross, 30 August 2010) page 9 line 26 to page 11 line 2 (‘Tn (2010)’); and paragraph 3 of the Plaintiff’s written Submission in Reply (27 August 2010).
William John McDonagh:[23] is a former assistant cost accountant with Gillette Australia. Gillette was a major supplier of razors and blades to the Australian Defence Forces from 1966 until at least 1990. He commented on two photographs. Photograph 1 showed a Gillette stainless steel double edged razor blade with a quantity of packaging near the blade. He cannot say when the blade was manufactured and the markings on the blade did not indicate a specific market or client. He said: “[I]t is quite possible that this razor was supplied to the Australian Defence Forces”. Photograph 2 showed an empty Gillette blister pack. The pack was developed to prevent pilfering in supermarkets and other retail outlets. He said “[T]hese packs were also distributed to the Australian Defence Forces”.
[23]Victoria Police Inquest Brief, Case No. 1489/05 Linda Jane Stilwell, 8 December 2009, Statement of William John McDonagh, pages 154-156.
Roger Michael Adair:[24] was a former Manufacturing Director for Gillette Australia between 1960 and 1996. He also commented on the two photographs referred to in McDonagh’s statement. He said that from the markings on the razor blade in photograph 1 it was manufactured in Melbourne during the last quarter of 1967. He recalled that the Australian Defence Forces were a customer of Gillette during his period of employment but said:
“After manufacture, the blades were supplied to company inventory. The blades were then sold to any of the numerous customers of Gillette. Gillette supplied their products Australia wide to both retail outlets and government departments. There were no identifying marks on either the blade or packaging that indicated what customer purchased what blade. I cannot assist any further to identify the specific purchaser of this blade.”
In relation to photograph 2 he thought it “high (sic) likely that the blade and packaging depicted in photograph 1 came from the blister pack depicted in photograph 2.” Photographs 1 and 2 related to the murder of Simon Brook.[25] Mr Percy was a member of the Australian Navy in the late 1960’s.
[24]Victoria Police Inquest Brief, Case No. 1489/05 Linda Jane Stilwell, 8 December 2009, Statement of Roger Michael Adair, pages 157-159.
[25]Victoria Police Inquest Brief, Case No. 1489/05 Linda Jane Stilwell, 8 December 2009, Statement of Adam Barwick, pages 266-267.
Dr David Leo Ranson:[26] is a medical practitioner practising as a specialist in forensic medicine and pathology. He is the Deputy Director of the Victorian Institute of Forensic Medicine. His evidence reviewed the available pathological and documentary material relating to the deaths of five children: Christine Sharrock (15 years old, body found at Wanda Beach Sydney 11 January 1965); Marianne Schmidt (15 years old, body found at Wanda Beach, Sydney 11 January 1965); Alan Redston (6 years old, body found at Curtin, ACT 28 September 1966); Simon Brook (3 years old, body found at Glebe, NSW 18 May 1968) and Yvonne Tuohy (12 years old, body found at Skye Beach, Warneet 20 July 1969). Dr Ranson was provided with autopsy reports, photographs and investigators’ summaries in respect of each of these deaths. He was asked to identify similarities between the cases and to determine whether the injuries might have been inflicted by a right or left handed person and to deal with criminological issues regarding the age and sex of the victims and any characteristics of the offender or offenders. He found some similarities between cases 1, 2, 4 and 5 but noted that case 3 showed a number of differences.
[26]Victoria Police Inquest Brief, Case No. 1489/05 Linda Jane Stilwell, 8 December 2009, Statement of Dr David Leo Ranson, pages 169-208.
Dr Jenny Dimitra Mouzos:[27] is a criminologist employed as a senior research analyst at the Australian Institute of Criminology (‘AIC’). The AIC manages the National Homicide Monitoring Program which collects incident, victim and offender data on all homicides coming to police attention since 1 July 1998. Her evidence dealt with the 536 records involving the homicide of a child in Australia between 1 July 1989 and 30 June 2003 which involved any kind of mutilation. Dr Mouzos concluded: “I am of the opinion that child mutilation murder is an infrequent occurrence in Australia. During the said period there was an average of 1.4 child mutilation murders per year in Australia or an average rate of 0.3 per million children aged 0 to 6 years in Australia over the 14 - year period.”[28]
[27]Victoria Police Inquest Brief, Case No. 1489/05 Linda Jane Stilwell, 8 December 2009, Statement of Dr Jenny Dmitra Mouzos, pages 209-217.
[28]Ibid 215.
Professor James Robert Ogloff:[29] is a clinical forensic psychologist. He was contacted by Victoria Police in respect of Mr Percy, who was a suspect in a number of unsolved homicides from Victoria, NSW, South Australia and the ACT. He was asked to provide a professional opinion about the likelihood that Mr Percy may be responsible for some or all of the crimes. At the commencement of his statement Professor Ogloff noted that:
“… determining whether an individual committed an offence falls outside the expertise of clinical forensic psychology, per se. Nonetheless, based on the information available, it is possible to provide an opinion about the extent to which Mr Percy may have had the propensity to commit the offences in question and whether the specific offences may be consistent with what we know of Mr Percy’s criminal predilections.”[30]
[29]Victoria Police Inquest Brief, Case No. 1489/05 Linda Jane Stilwell, 8 December 2009, Statement of Professor James Robert Ogloff, pages 218-228.
[30]Ibid 218-219.
In relation to the murder of Ms Tuohy, Professor Ogloff said:
“It is, in my opinion, highly unusual as a first serious offence for one to carry out and complete a set of acts as complex as those performed against Ms Tuohy … This suggests to me that the attack and murder of Ms Tuohy was perhaps not the first such attack that occurred.”[31]
[31]Ibid 225-226.
Professor Ogloff concluded:
“… it is my opinion that from 1965 or 1966 until he was arrested for the murder of Yvonne Tuohy, Mr Percy had the propensity to commit acts similar to those for which he is now a suspect…”[32]
Professor Ogloff provided some specific comments in respect of the similarities between the various cases, but noted:
“I cannot comment upon the disappearance of the Beaumont children or Linda Stilwell given the lack of specific information about that matter.”[33]
[32]Ibid 226.
[33]Ibid 228.
Adam Barwick:[34] is a detective sergeant with the NSW Homicide Squad. He compared the circumstances of Simon Brook’s murder with that of Yvonne Tuohy and concluded that the similarities between the two murders “are striking”.[35]
[34]Victoria Police Inquest Brief, Case No. 1489/05 Linda Jane Stilwell, 8 December 2009, Statement of Adam Barwick, pages 243-285.
[35]Ibid 284.
Adrian Paterson:[36] is a detective sergeant and officer in charge of the Criminal Identification Squad of Victoria Police. He commented on the comparisons between Mr Percy and the ‘identikit’ images of a suspect in relation to the murders of Alan Redston and Simon Brook and concluded:
“From my experience in working with Facial Identification over the years, and being aware of the uses, limitations and the role of composite images in the identification process, I am of the opinion, that the two composite IDENTIKIT images are acceptable likeness to the person depicted in the actual photographs and a high probability that they are one in the same people.”[37]
[36]Victoria Police Inquest Brief, Case No. 1489/05 Linda Jane Stilwell, 8 December 2009, Statement of Adrian Paterson, pages 286-289.
[37]Ibid 288.
Debra Jane Bennett:[38] is the officer in charge Behavioural Analysis Unit, Homicide Squad Victoria Police. She reviewed the police material concerning the murders of five children: Christine Sharrock; Marianne Schmidt; Alan Redston; Simon Brook and Yvonne Tuohy and concluded:
“All of these homicides were sadistic. It is possible that the sexual homicides of Christine Sharrock and Marianne Schmidt are linked to the lust murders of Simon Brook and Yvonne Tuohy. It is also possible that due to inexperience and/or immaturity in the Christine Sharrock and Marianne Schmidt murders, or because of interruption or some other unknown variable that these murders were in fact lust murders. However there is insufficient behavioural evidence to link the Christine Sharrock and Marianne Schmidt murders to any of the other offences … neither am I able to link the murder of Alan Redston to any of the homicides.”[39]
[38]Victoria Police Inquest Brief, Case No. 1489/05 Linda Jane Stilwell, 8 December 2009, Statement of Debra Jane Bennett, pages 229-235.
[39]Ibid 234-235.
The Plaintiff submitted that in excluding these statements the Coroner failed to take into account a relevant consideration, namely evidence which related to the deaths of other children which could be relevant in determining the cause and circumstances of Linda Stilwell’s death. It was submitted that the Coroner failed to have regard to the “similar facts, past criminal conduct and propensity” in circumstances between the deaths, attempted abduction and disappearance of other children and the disappearance of Linda Stilwell. Counsel for the Plaintiff relied on the High Court’s judgment in Pfennig v R[40] as to the admissibility of the excluded statements and to the ‘Similar Fact Table’ set out in a schedule to his written submissions.
[40](1994) 182 CLR 461.
At paragraph 4 of the reply submissions counsel for the Plaintiff said:
“The statements above should be considered as a whole in examining the disappearance of Linda Stilwell. When the commonalities of each incident and the similarities are as strong and as striking they are in these instances it would be wrong and misleading to consider the one incident in isolation, namely, the facts and circumstances surrounding Linda Stilwell’s disappearance. It is when properly considered as ‘a whole’ that this evidence is most powerful and of great probative value. It is as a whole that it has been considered in the accompanying expert witness statements, such as those of Dr. Ogloff and Dr. Ranson.”
Counsel also noted that similar fact and propensity evidence was admitted in an inquest involving the death of an aboriginal man in 2004 while in custody in the watch-house cell at the Palm Island Police Station.[41]
[41]Doomadgee v Deputy State Coroner Clements [2006] 2 Qd R 352, [55] (Muir J).
The ground of failure to take into account a relevant consideration can only be made out if the decision maker failed to take into account a consideration which he or she is bound to take into account in making that decision. As Deane J observed in Sean Investments Pty Ltd v MacKellar:[42]
“In a case such as the present, where relevant considerations are not specified, it is largely for the decision-maker, in the light of matters placed before him by the parties, to determine which matters he regards as relevant and the comparative importance to be accorded to matters which he so regards. The ground of failure to take into account a relevant consideration will only be made good if it is shown that the decision-maker has failed to take into account a consideration which he was, in the circumstances, bound to take into account for there to be a valid exercise of the power to decide.”[43]
[42](1981) 38 ALR 363.
[43]Ibid 375.
The factors which a decision maker is bound to consider in making the decision is determined by construing the statute conferring the discretion, in this case the Act.
As Mason J (with whom Gibbs CJ and Dawson J agreed) said in Minister for Aboriginal Affairs v Peko-Wallsend Ltd:[44]
“… where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject-matter, scope and purpose of the Act.” [45]
[44](1985) 162 CLR 24.
[45]Ibid 40 and 55-56 (Brennan J with whom Deane J was in general agreement). See also Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492, 505 (Dixon J).
Section 67 of the Act relevantly provides that a coroner investigating a death must find, ‘if possible’:
(a) the identity of the deceased;
(b)the cause of death; and
(c)the circumstances in which the death occurred.
The Act gives coroners considerable latitude as to the manner in which an inquest is conducted. One of the objects of the Act is that the coronial system operate in “a fair and efficient manner”. In giving effect to that objective coroners have a wide discretion to determine the relevant issues for the purposes of an inquest. Section 64 provides that the coroner holding the inquest determines:
i) the witnesses to be called; and
ii)the relevant issues for the purposes of the inquest.
Section 62 provides that a coroner holding an inquest is not bound by the rules of evidence and “may be informed and conduct an inquest in any manner that the coroner reasonably thinks fit”. ‘Interested parties’ do not have a right to call witnesses. Such parties may make a submission to the coroner specifying who they consider to be a relevant witness. Section 66(1) provides that the coroner ‘may’ consider that submission and determine whether that witness should be called. Section 45(1) of the Interpretation of Legislation Act 1984 provides that where the word ‘may’ is used in conferring a power, that word shall be construed as meaning that the power so conferred may be exercised, or not, at discretion.
In my view the subject matter, scope and purposes of the Act do not support the Plaintiff’s contention that the Coroner was bound to have regard to the material in the excluded statements. The Coroner was inquiring into the death of Linda Stilwell and was not inquiring into any other deaths. None of the statements directly related to the disappearance of Linda Stilwell, who has not been found. It is unnecessary for me to canvass the similarities between the circumstances in Pfennig and those in this case. It is not a question of the admissibility of the evidence in question – the Coroner was not bound by the rules of evidence in any event – it is whether he was bound to take these matters into account.
I now turn to the challenge to the Coroner’s second ruling.
The Second Ruling
Mr Percy was called to give evidence by counsel assisting the Coroner. Through his counsel Mr Percy objected to giving evidence on the ground that such evidence may tend to prove he has committed a criminal offence. The Coroner ruled that he was satisfied that there were reasonable grounds for that objection.[46] If Mr Percy was compelled to give evidence a certificate must be given, providing the witness with both use and derivative use immunity in respect of the evidence.
[46]Tn (2009) 219. No challenge is made to this finding.
Counsel for Linda Stilwell’s family submitted that Mr Percy should be compelled to give evidence pursuant to s 57(4) of the Act as “the interests of justice” required it.
In dealing with counsels’ submission the Coroner accepted that:
Ø each case needs to be assessed on its merits;
Ø the factor of greatest significance in this case is the nature of the alleged offence, namely murder (the Coroner noted that the evidence to date would support a finding that Linda Stilwell was abducted and is deceased, having met her death by foul play); and
Ø the evidence, if given, would have the potential to explain a very serious unsolved crime.
The Coroner did not accept the submission that the likelihood of Mr Percy being prosecuted was “infinitesimal”.
The Coroner also had regard to the likelihood that Mr Percy’s evidence would be unreliable:
“In this case the abduction occurred over 40 years and at a time when Mr Percy may well have been of unsound mind, the mental illness he was subsequently found to suffer. I would not have a high level of confidence in these circumstances as to the reliability of the evidence given.”[47]
[47]Tn (2009) 219 line 32 – 220 line 5.
Having regard to all of these factors the Coroner was satisfied that it would not be in the interests of justice to grant a certificate and decided not to compel Mr Percy to give evidence. A copy of the Coroner’s ruling is set out at Attachment 2 to this judgment.
The Plaintiff submitted that the ruling was erroneous. Two bases are advanced in support of the Plaintiff’s contention:
(i)the matters referred to in s 57(3) of the Act were not expressly stated to the second defendant; and
(ii)it was not open to the Coroner to find that any evidence which Mr Percy might give about the circumstances of Linda Stilwell’s disappearance would be unreliable. In particular the Coroner should have had regard to Professor Ogloff’s opinion that Mr Percy has no difficulties with either his short or long term memory and that his reliance on having no memory of events is a mechanism he uses to attempt to avoid admitting events or even discussing them. Instead of relying on Professor Ogloff’s opinion the Coroner relied on opinions from 1970 which reported on Mr Percy’s psychiatric condition at the time of the reports affecting his recollection of events under enquiry.
It is convenient to deal with the s 57(3) point first. Section 57 is in the following terms:
(1) This section applies if a witness objects to giving evidence, or evidence on a particular matter, at an inquest on the ground that the evidence may tend to prove that the witness –
(a)has committed an offence against or arising under an Australian law or a law of a foreign country; or
(b)is liable to a civil penalty under an Australian law or a law of a foreign country.
(2) The coroner must determine whether or not there are reasonable grounds for the objection.
(3) If the coroner determines that there are reasonable grounds for the objection, the coroner is to inform the witness-
(a)that the witness need not give the evidence unless required by the coroner to do so under subsection (4); and
(b) that the coroner will give a certificate under this section if-
(i)the witness willingly gives the evidence without being required to do so under subsection (4); or
(ii)the witness gives the evidence after being required to do so under subsection (4); and
(c) of the effect of such a certificate.
(4) The coroner may require the witness to give evidence if the coroner is satisfied that-
(a)the evidence does not tend to prove that the witness has committed an offence against or arising under, or is liable to a civil penalty under, a law of a foreign country; and
(b) the interests of justice require that the witness give the evidence.
(5) If the witness either willingly gives the evidence without being required to do so under subsection (4), or gives it after being required to do so under that subsection, the coroner must cause the witness to be given a certificate under this section in respect of the evidence.
(6) The coroner is also to cause a witness to be given a certificate under this section if-
(a)the objection has been overruled; and
(b) after the evidence has been given, the coroner finds that there were reasonable grounds for the objection.
(7) In any proceeding in a court or before any person or body authorised by a law of this State, or by consent of parties, to hear, receive and examine evidence-
(a)evidence given by a person in respect of which a certificate under this section has been given; and
(b)any information, document or thing obtained as a direct or indirect consequence of the person having given evidence-
cannot be used against the person. However, this does not apply to a criminal proceeding in respect of the falsity of the evidence.
(8) Subsection (7) has effect despite any challenge, review, quashing or calling into question on any ground of the decision to give, or the validity of, the certificate concerned.
In this case the Coroner determined that there were reasonable grounds for the objection and so s 57(3) provides that the Coroner was then to inform the witness of the matters set out in s 57(3)(a),(b) and (c). It is common ground that the Coroner did not inform the witness of these matters. The question is whether the non-compliance with s 57(3) invalidated the Coroner’s decision.
The failure to comply with s 57(3) does not necessarily mean that the act was invalid. As the High Court said in Project Blue Sky Inc v Australian Broadcasting Authority[48]:
“An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue.” [citations omitted][49]
[48](1998) 194 CLR 355.
[49]Ibid 388-389 (McHugh, Gummow, Kirby and Hayne JJ).
Whether the departure from the requirements of s 57(3) in this case results in the invalidity of the Coroner’s ruling is dependent upon the legislative purpose. Is the legislative purpose of s 57(3) to invalidate any act that fails to comply with those requirements?
The language used in s 57(3) is plainly relevant in deciding this question. Section 57 does not say, in terms, that a failure to comply with the requirements of s 57(3) renders the exercise of the Coroner’s power under s 57 invalid. Subsection 57(3) provides that “the coroner is to inform the witness” of the matters specified. This may be contrasted with more emphatic language of s 57(2), “the coroner must determine”, and s 57(5), “the coroner must cause the witness to be given a certificate”.
The use of different language within the same section is telling. It would have been a simple matter to express s 57(3) in mandatory terms, but Parliament chose not to do so. This suggests that the direction to the Coroner in s 57(3) was not intended to be mandatory.[50]
[50] Scott v Commercial Hotel Merbein Pty Ltd [1930] VLR 25; Freeman v Medical Practitioners Board of Victoria [2000] VSC 547 (Unreported, Balmford J, 20 December 2000).
The legislative context is also relevant. The stated intention of the Act is that the coronial system operate in a fair and efficient manner. Inquest proceedings are inquisitorial in nature and the Act provides that they are to be conducted with as little formality and technicality “as the interests of justice permit”.
As to the interests of justice in this case, it is relevant to note that the witness (Mr Percy) was represented by counsel and, in the final result, the Coroner did not require the witness to give evidence. It is also apparent from a review of the transcript that Mr Percy’s counsel was familiar with terms of s 57 and in particular the availability a certificate and the effect of such a certificate.[51] In particular, counsel’s submissions made it clear that he was aware that a s 57 certificate provided both direct and derivative use immunity.[52]
[51]Tn (2009) 139 lines 2-6; 193 line 12 to p195 line 8; 197 line 3 to 204 line 16.
[52]Ibid 204 lines 9-16.
The legislative context and the particular circumstances in this case do not point to the necessity of strict compliance with the requirements of s 57(3). I am not persuaded that the failure to comply with the requirements of s 57(3) invalidated the Coroner’s ruling. For completeness I note that the interests of justice may have necessitated a different conclusion had the witness not been represented.
I now turn to the second basis for the Plaintiff’s challenge to the second ruling.
The essence of the Plaintiff’s contention was that it was not open to the Coroner to find that any evidence Mr Percy might give about the circumstances of Linda Stilwell’s disappearance would be unreliable. It was submitted that the Coroner erred in having regard to psychiatric opinions about Mr Percy which were given around the time of Linda Stilwell’s disappearance. It was argued that the Coroner should have had regard to more recent evidence about Mr Percy’s memory and in particular he should have had regard to Professor Ogloff’s evidence in respect of that issue.
Before turning to the particular points advanced on behalf of the Plaintiff I propose to set out the relevant context.
When the question of Mr Percy being called was first mooted the following exchange took place between the Coroner and Mr Higham, counsel for Mr Percy:
“The Coroner: Mr Higham, I can anticipate when Mr Percy is called that there may be applications made as to whether he gives evidence or not.
Mr Higham: Yes.
The Coroner: There may also be other applications made. As you’re aware now under the new Coroners Act there’s a possibility of giving a certificate.
Mr Higham: Yes, your Honour, a copy of which has been close to me for the last two days, I’m not sure about others and my learned friends.
The Coroner: I thought it might have been. Having anticipated those paths, there is an issue that I believe is relevant to the consideration of the merits of the certificate, one of which is the reliability of whatever evidence potentially can be given by a witness. I seem to recall that Mr Percy had an application in the Supreme Court recently regarding his current status.”[53]
[53]Ibid 138 line 29 to 139 line 14.
So at an early stage the Coroner was raising the reliability of any evidence Mr Percy might give as an issue bearing on whether he should be compelled to give evidence. The Coroner was also seeking material which would assist him to assess the reliability of Mr Percy’s evidence.
It then transpired that the psychiatric reports provided to the recent hearing about Mr Percy under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 to which the Coroner had alluded, were directed towards the basis of his treatment and his engagement with treatment. Those reports did not canvass the reliability of any evidence Mr Percy may give and so were not tendered.[54]
[54]Ibid 153 lines 12 - 31.
The debate resumed when counsel assisting the Coroner, Mr Tinney, sought to call Mr Percy.[55] Mr Higham then objected to Mr Percy giving evidence on the ground that any evidence given would tend to incriminate him. The Coroner was satisfied that there were reasonable grounds for a global objection on the basis that virtually any relevant question of Mr Percy, and the responses given to it, would have the potential to incriminate him.[56] Mr Higham then turned to s 57(4) and the question of whether “the interests of justice” required that Mr Percy give evidence.[57]
[55]Ibid 190 line 24 to 220 line 15.
[56]Ibid 196 lines 27 – 31.
[57]Ibid 197 line 17 to 204 line 16.
During the course of his submissions counsel for Mr Percy made reference to the reliability of any evidence that may be given by Mr Percy, in these terms:
“Your Honour is also minded to have regard to the reliability of any evidence that would be given. Your Honour, as I indicated, I think it was the day before yesterday but it may have been yesterday morning, there is no issue to the effect that Derek Percy today is not capable of giving evidence. I make that very very clear. But, Your Honour, he would be being asked to give evidence about events, things done, things said which occurred over 40 years ago…
And, Your Honour, the events of course happening 41 years ago in 1968 – August. He is being asked moreover - sorry let me pause there. Recollection over that period of time has its own inherent difficulties. All of us have worked in the courts and Your Honour will only be too familiar with it: the inherent difficulties of recollection and reliability and remembering incidences from many years ago. Some of course are etched on the mind, putting the other side.
But, Your Honour, of course at his trial for the killing of the young child Yvonne Tuohy he was found not guilty by reason of insanity. I’m aware that the trial transcript, Your Honour, is not in the brief. What we have that have been given to the parties were for some reason his Naval discharge. But, Your Honour, if I may be permitted to say this: it was the evidence of both psychiatrists called, that is to say Dr Ball and Dr Bartholomew… Insanity was the term, as Your Honour will be aware, that was used by the courts but both Dr Ball and Dr Bartholomew made it clear that psychiatry in 1969 and 1970 had moved on and we didn’t speak in terms of insanity, we identified illnesses.
So, Your Honour, whatever may be the view now – and I don’t trespass on that because there is no issue, as I’ve already said, Your Honour, it is his capacity to give evidence. In terms of his reliability he would be asked to recall events from a period when he was subjected to psychotic episodes. Further, defined by Dr Ball as losing as losing touch with reality and as well in mind being overcome.
In my submission, I ask Your Honour to take those into consideration when considering the worth, the value, the content, the quality, reliability of any evidence that can be given.”[58]
[58]Ibid 199 line 18 –201 line 17.
Mr Ashton, who with Ms McKinnon appeared on behalf of Linda Stilwell’s family, then addressed the question of Mr Percy being compelled to give evidence. In the course of those submissions Mr Ashton dealt with the reliability issue and in that context said:
“Your Honour … there is no evidence before the inquest at the present time as to Mr Percy’s psychiatric state of his psychiatric state as of 1968 or 1969. I understand that these are matters that were discussed at his trial and plainly I don’t seek to go behind the jury’s verdict that he was not guilty by reason of insanity but, in my submission, in order to assess the reliability of anything he might say one needs to be more specific than simply to say this person was found not guilty by reason of insanity 40 years ago therefore they won’t be reliable about any evidence they give about matters that occurred at that time.
If we reach a situation where Your Honour considers that unreliability can extend to the sorts of circumstances to which my learned friend has referred then I would seek that the interested parties have access at the very least to the psychological or psychiatric reports from the firs trial.”[59]
[59]Ibid 204 line 30 to 205 line 10 and 206 line 28 to 207 line 3.
The Coroner responded to Mr Ashton’s request to have access to the psychiatric reports from Mr Percy’s 1970 trial, as follows:
“Given that reliability is clearly an issue I’ve got to consider, and we’ve heard from Mr Higham and I’ve been assisted by what he has said, you certainly should have the opportunity to read those relevant parts of Dr Bartholomew’s and Dr Ball’s evidence”.[60]
[60]Ibid 210 line 31 to 211 line 4.
Mr Ashton was then provided with the reports of Drs Bartholomew and Ball[61] and made submissions in which he relied on extracts from those reports. In the course of those submissions Mr Ashton said:
“…the unreliability issue is only one of many factors Your Honour must take into account, in my submission, in determining whether the interests of justice require that Mr Percy give evidence…we’ve got the psychiatric reports…I think it is reasonable that Your Honour have regard to what those reports actually say.”[62]
[61]Ibid 214 lines 7 – 10.
[62]Ibid 217 lines 8 – 17.
It is apparent from this extract that in the proceedings before the Coroner, counsel for the Plaintiff accepted that the reliability of the evidence Mr Percy might give was relevant to the determination of whether the interests of justice required that Mr Percy give evidence. Further, counsel submitted that the Coroner should have regard to the reports of Drs Bartholomew and Ball in making his assessment about the reliability of the evidence Mr Percy might give.
The reports of Drs Bartholomew and Ball were then marked as exhibits 11 and 12, effectively at the request of counsel for the family of Linda Stilwell.[63] It is convenient to briefly canvass the evidence of Drs Bartholomew and Ball now, before turning to consider Professor Ogloff’s evidence.
[63]Ibid 217 lines 23 – 27.
Dr Bartholomew’s report stated, relevantly:
“The problem of his recollection of events both prior to and during his initial questioning by police is real… I see his initial “Amnesia” as being compounded of an unwillingness to admit to his deeds plus some degree of hysterical repression… I am of the opinion that he has suffered for a considerable time from a borderline psychotic state and that at the time of the killing …he did suffer from a disease of the mind: a psychotic state.”
Dr Ball’s report stated:
“He (Percy) gave a detailed description of the Saturday and Sunday events with much precision and multiple specific details; many of which I think must indicate real memory rather than assumptions based on other information available to him … In the depositions and from his own account an amnesia seems to have developed, from turning off the highway to Warneet…till later filling his car with petrol… This period of amnesia steadily shrank during the next 8 to 10 hours during which he remembered more and more details…
Mental State at the time of my examination:
The prisoner was neatly dressed in standard prison garb. He seemed intelligent and alert, and was cooperative at all times. No unusual mannerisms or other abnormal behaviour occurred. His memory for recent and remote events was intact, and he was orientated in every respect… I think the prisoner suffers from an abnormal personality with a grossly pathological, deviant sexual drive, which has been evident for about five years, possibly more… Whatever the causes may have been, the disorder was of such severity as to warrant the term psychotic being applied to it at the times when the murderous impulses were being expressed. For much of the rest of the period, when ruminating about such matters he could be considered to be borderline psychotic, particularly at the beginning of the abduction. In the initial stages he obviously was still to some extent in touch with reality… I do not consider him to be a normal man with normal inhibitions. Under a stressful sexual situation which admittedly he initiated, I think his abnormal sexual urges became unleashed, with emergence of any primitive, deep ‘unconscious’ urges which led to further disintegration and decompensation, with associated changes in awareness and increasing lack of control. The subsequent amnesia for the relevant longer period of time I would consider to be due to denial and repression of what had happened with the amnesia being of an hysterical nature. This amnesia was probably never complete – viz - varied hints in the depositions, and in any case was of only short duration.”
In his evidence Professor Ogloff said:
“Mr Percy frequently stated that he could not remember matters during his interview with police on 2/2/05. While it may be the case that he could not remember particular dates and details, of, for example, family holidays, it has been Mr Percy’s habit to state that he cannot remember when asked difficult questions pertaining to alleged offences and related events. This certainly occurred in my interviews with Mr Percy in 2002 and 2003. Other professionals have made similar observations in their reports, and as far back as 1969, when he was questioned by the police, Mr Percy has relied on a similar style of responding. For example, with respect to the incident where he was seen wearing women’s panties at the gorge, even at the time of the interviews with Drs. Ball and Bartholomew in the late 1960s and early 1970s, he denied having a memory for the event where he was found wearing female panties. This is the same for the interview with the police in February 2005. In my assessment, Mr Percy showed no difficulties with either short-term or long-term memory. In fact, he could remember precise details of many facts, both in recent times and from the distant past. Thus, it would appear that his reliance on having no memory of events is a mechanism he uses to attempt to avoid admitting to events or to even discussing them.”
It will be recalled that earlier in the proceedings before the Coroner he had excluded Professor Ogloff’s statement, among others. Mr Tinney, counsel assisting the Coroner, sought to have Professor Ogloff’s statement excluded on the basis that it was not relevant to the focus of the inquest.[64] Ms McKinnon, on behalf of Linda Stilwell’s family, submitted that the statement was relevant and should be admitted. The gravamen of Ms McKinnon’s argument was that Professor Ogloff’s statement dealt with the similarities between the death of Yvonne Tuohy and the deaths of a number of other children. It was submitted that Mr Percy was implicated in the other deaths and hence had a propensity to kill young children. Ms McKinnon characterised the evidence in question as similar fact evidence.[65] But, at no point did Ms McKinnon refer to that part of Professor Ogloff’s statement that dealt with Mr Percy’s memory.
[64]Ibid 2 line 30 – 3 line 11.
[65]Ibid 4 line 19 – 8 line 6.
It is important to appreciate at the outset that in the context of the debate below about whether Mr Percy should be compelled to give evidence no one sought to rely on Professor Ogloff’s evidence about Mr Percy’s memory. In particular, counsel for Linda Stilwell’s family (including the Plaintiff in these proceedings) made no reference at all to Professor Ogloff’s evidence in the course of her submissions about the reliability of any evidence Mr Percy might give.
The Coroner concluded that it would not be in the interests of justice to compel Mr Percy to give evidence. In reaching that conclusion the Coroner said:
“I accept the submission by Mr Ashton that each case needs to be assessed on its merits and in considering the view, the various factors relating in this case the one of greater significance is the nature of the alleged offence. The evidence to date would support a finding that Linda Stilwell was abducted and is deceased, having met her death by foul play. The nature of the alleged offence is murder.
I accept the evidence, if given, would have the potential to explain a very serious unsolved crime but I do not accept the submission that the likelihood of Mr Percy being prosecuted in infinitesimal. A further factor for consideration is the likelihood that the evidence will be unreliable. In this case the abduction occurred over 40 years ago and at a time when Mr Percy may well have been of unsound mind, the mental illness he was subsequently found to suffer. I would not have a high level of confidence in these circumstances as to the reliability of the evidence given.”
In this Court, counsel for the Plaintiff submitted that the Coroner erred in:
Ø having regard to an ‘irrelevant consideration’ (being the reports of Drs Bartholomew and Ball); and
Ø failing to have regard to a relevant consideration (being Professor Ogloff’s report).
To successfully challenge the Coroner’s decision on the ground that he had regard to an ‘irrelevant consideration’ the Plaintiff must establish that the Act precluded the Coroner from taking the consideration into account. As Aronson, Dyer and Groves put it:
“Not only must the consideration have been irrelevant, but the Act must have forbidden its consideration.”[66]
[66]Mark Aronson, Bruce Dyer and Matthew Groves, Judicial Review of Administrative Action (4th ed, 2009) [5.10].
This proposition is supported by ample authority.[67]
[67]For example see Neat Domestic Trading Pty Limited v AWB Limited (2003) 216 CLR 277, 288 (Gleeson CJ); Ballantyne v Workcover Authority of New South Wales [2007] NSWCA 239 (Unreported, Beazley, Ipp and Basten JJA, 11 November 2007) [113] (Basten JA) and Love v State of Victoria [2009] VSC 215 (Unreported, Cavanough J, 23 June 2009) [191].
The ‘irrelevant consideration’ which is said to have been taken into account by the Coroner was the reports of Drs Bartholomew and Ball. Two things may be said about this submission.
The first is that the submission is misconceived. A distinction may be drawn between a relevant consideration and the evidence which may be said to bear on that consideration.[68] The same conceptual distinction may be made in the context of an irrelevant consideration. Applying that proposition here, the consideration in question is the reliability of the evidence which Mr Percy might give. It is not suggested that in deciding whether to compel Mr Percy to give evidence the Coroner was precluded from considering the reliability of such evidence. The challenge is to the matters to which the Coroner had regard in considering the question of reliability. The reports of Drs Bartholomew and Ball amount to evidence which may bear on that consideration. The two reports do not constitute a ‘consideration’ (whether relevant or irrelevant), rather they are merely items of evidence.
[68]For example see Li Shi Ping v Minister for Immigration, Local Government and Ethnic Affairs (1994) 35 ALD 225, 236-237 (Carr J), and Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244, [42] (Allsop J).
Seen in this way it is not open to the Plaintiff to challenge the Coroner’s reliance on the two reports.
The second point is that, if I am wrong about the distinction between a relevant consideration and mere items of evidence, I am not persuaded that the Coroner was precluded from having regard to the reports. The evidence in question goes to Mr Percy’s state of mind at the time of the events with which the inquest was concerned. I am not persuaded that the Coroner was precluded from taking such matters into account.
As to the second limb of the Plaintiff’s submission, that the Coroner failed to have regard to a ‘relevant consideration’, it must be shown that the Coroner failed to have regard to a matter which he was bound to consider. The ‘relevant consideration’ which the Coroner is said to have failed to take into account is Professor Ogloff’s evidence. I am not persuaded that the Coroner erred in the manner contended, for two reasons.
The first reason is the same point made in respect of the reports of Drs Bartholomew and Ball. Professor Ogloff’s report does not amount to a ‘relevant consideration’ in the context of jurisdictional error. It is an item of evidence that bears on a relevant consideration, it is not a relevant consideration in its own right.
The second point is that in the proceedings before the Coroner no party sought to rely on Professor Ogloff’s evidence for the purpose of assessing the reliability of Mr Percy’s evidence. I fail to see how the Coroner can be said to have erred in failing to consider evidence which no one sought to adduce.
For completeness I would note that even if the Plaintiff had established that the Coroner had made a jurisdictional error such as to provide a basis for certiorari, I would not have granted the remedy sought. Certiorari is a discretionary remedy.[69] Considerations which are relevant to the exercise of the discretion include the conduct of the applicant and the utility of the relief sought. As Ryan J put it in Shell’s Self Service Pty Ltd v Deputy Commissioner of Taxation:[70]
“… this court should not automatically quash or set aside a decision upon finding that it has been vitiated by error or law. It is also necessary to have regard to the conduct of the applicant for review including any delay in bringing the proceedings or acquiescence in the decision-maker’s error. As well, it may be appropriate to examine whether, on further consideration, the decision-maker could reasonably come to some other decision more favourable to the applicant for review.”[71]
[69]Victoria Legal Aid v County Court of Victoria (2004) 9 VR 686.
[70](1989) 98 ALR 165; cited with approval by Nettle JA in Mann v Medical Practitioners Board of Victoria (2004) 21 VAR 429 [17].
[71]Ibid 179.
The Plaintiff’s conduct in the proceedings before the Coroner tells against the grant of the relief sought. The following points emerge from an examination of the proceedings below:
ii)Counsel for the Plaintiff accepted that the reliability of the evidence Mr Percy might give was relevant to the determination of whether the interests of justice required Mr Percy to give evidence.
iii)Counsel for the Plaintiff submitted that the Coroner should have regard to the reports of Drs Bartholomew and Ball in making his assessment about the reliability of the evidence Mr Percy might give.
iv)No one sought to rely on Professor Ogloff’s evidence about Mr Percy’s memory and counsel for the Plaintiff made no reference at all to Professor Ogloff’s evidence in the course of her submissions about the reliability of any evidence Mr Percy might give.
As to the utility of granting the relief sought, it is relevant to observe that the Coroner’s view as to the reliability of any evidence Mr Percy may give was but one of various factors he took into account. It is plain from the Coroner’s ruling that the factor of greatest significance is the nature of the alleged offence, that is, murder.[72] The Coroner’s approach in that regard also accords with authority.[73]
[72]In this regard the Coroner’s reasons reflected the submissions put on behalf of Mr Percy. At Tn (2009) 152 lines 29-31 Mr Higham said: ‘I don’t think the issue primarily for Your Honour will be his reliability, the issue will be the tendency to incriminate.’
[73]For example in Correll v Attorney General of New South Wales (2007) 180 ACrimR 212, 226 [42] (Bell J).
For the reasons given the application for relief is dismissed.
ATTACHMENT 1
FIRST RULING
Ms McKinnon, on behalf of the family, opposes the application made by counsel assisting that a number of statements presently on the inquest brief be removed due to lack of relevance to this inquest. Ms McKinnon relies on six grounds (one having been withdrawn) in support of her submission that the material remain on the inquest brief.
Firstly, she relies on a conversation following the arrest of Mr Percy for the death of – the killing of Yvonne Tuohy and that is a conversation between Mr Percy and Mr Anderson in which Mr Percy states words to the effect that “I really fucked up this time” and that that implies that he had done that sort of thing before. I see that as a long bow. It is one of interpretation possibility that could be given to that response by Mr Percy, however, I do not see it linking in any way to Linda Stilwell.
Secondly, the response again during the course of the conversation with Anderson I can’t remember. The reliance here is that this is neither – he is neither admitting nor denying and, accordingly, I do not see, I am afraid, that that submission – the fact that it’s neither an admission nor a denial assists me in determining whether these statements should be admitted or not.
The third point relates to the conversation and Simon Brook’s death that this occurred near a railway embankment, that Mr Percy is returning – has travelled through the area; he is returning alone, hence he has knowledge of the circumstances surrounding Simon’s death and has the opportunity and that he is alone in the vehicle on his return.
In respect of that submission I cannot exclude the possibility that there was publication of details. I have no knowledge one way or the other as to what may or may not have been published at the time of that death. I know from my own experience in Melbourne in the past there was a newspaper called Truth that many of you may well be aware of, they published extraordinary details of deaths in Melbourne before any hearings took place. The source of their information I do not know but they were able to obtain information and they published it. I do not know whether that sort of material could have been published in New South Wales and, again, I do not find that I can rely on that submission as a reason for admitting the statements.
Similarly, that argument applies to the fifth – I have jumped the fourth- but that similarly applies to the fifth submission in relation to publication of possible injuries to the deceased in those cases. I do not know again what was in the public arena at the time that may have afforded knowledge to Mr Percy.
Going back to the fourth submission, again that related to the death of Simon Brook, that he was there at the time and the response that I just can’t remember whether in fact when he was taken that step further “Did you kill him?”, “I can’t remember”, I don’t see- I cannot find any probative value in that response to again assist me in relation to the admission of these statement.
The mutilation submission, as I have indicated, has been withdrawn. What was the seventh and is not the sixth submission is relating to the attempted abduction of Read. Again, in respect to that, I do not find that the submission assists me in determining the admissibility or otherwise – or rather the relevance or otherwise of the listed that have been sought to be excluded.
Accordingly, I rule that I am satisfied that there is – I cannot be satisfied rather that there is sufficient similarity in the circumstances surrounding the deaths of Yvonne Tuohy and Simon Brook when related to the abduction of Linda Stilwell to make the statements previously referred to relevant to this inquest and, accordingly, the listed statements will be removed from the inquest brief and not tendered in evidence.[74]
[74]Tn (2009) 188 – 190.
ATTACHMENT 2
SECOND RULING
Mr Percy, having been called to give evidence by counsel assisting has through his counsel objected to giving evidence on the grounds that the evidence may tend to prove he has committed a criminal offence.
I previously ruled that I am satisfied that there are reasonable grounds for the objection.
Counsel appearing on behalf of the family (Mr Ashton) submits that Mr Percy should be compelled to give evidence pursuant to s.57 (4) of the Coroners Act 2008 as “the interest of justice” requires it. If the witness is compelled to give evidence a certificate would be given giving the witness both the use and derivative use immunity in respect of the evidence.
I accept the submission by Mr Ashton that each case needs to be assessed on its merits and in considering the view, the various factors relating in this case the one of greater significance is the nature of the alleged offence. The evidence to date would support a finding that Linda Stilwell was abducted and is deceased, having met her death by foul play. The nature of the alleged offence is murder.
I accept the evidence, if given, would have the potential to explain a very serious unsolved crime but I do not accept the submission that the likelihood of Mr Percy being prosecuted in infinitesimal. A further factor for consideration is the likelihood that the evidence will be unreliable. In this case the abduction occurred over 40 years ago and at a time when Mr Percy may well have been of unsound mind, the mental illness he was subsequently found to suffer. I would not have a high level of confidence in these circumstances as to the reliability of the evidence given.
In assessing the various factors I am satisfied it would not be in the interest of justice to grant a certificate. Whist I have enormous sympathy for the family who have waited a considerable time to hear from Mr Percy, as a matter of law it would be inappropriate for me to compel him to give evidence then give him a certificate granting him immunity in respect of that evidence. I so rule.”[75]
[75]Ibid 219 -220.
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CERTIFICATE
I certify that the 28 preceding pages are a true copy of the reasons for Judgment of Ross J of the Supreme Court of Victoria delivered on 7 October 2010.
DATED this seventh day of October 2010.
Associate to Justice Ross
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