Kahn v West
[1999] VSC 530
•17 December 1999
SUPREME COURT OF VICTORIA
CAUSES JURISDICTION Do not Send for Reporting Not Restricted
No. 7038 of 1995
| PHILIP KAHN | Plaintiff |
| v | |
| HIS WORSHIP IAIN WEST (in his capacity as Deputy State Coroner) and GERARD KEOWN | Defendant Intervening |
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JUDGE: | Warren J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 and 30 July 1999 | |
DATE OF JUDGMENT: | 17 December 1999 | |
CASE MAY BE CITED AS: | Kahn v West | |
MEDIA NEUTRAL CITATION: | [1999] VSC 530 | |
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Coroner's inquest – review of coroner's findings – cause of death –identity of person who contributed to cause of death – police shooting – whether findings subject to review – Coroner's Act 1985 (No. 10275) ss.19, 59.
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APPEARANCES: | Counsel | Solicitors |
For the Plaintiff | Dr I. Freckelton | Victorian Aboriginal Legal Service |
| For the Defendant | No appearance | |
| For the Intervener | Mr I.D. Hill QC with Mr A. Hargreaves | Kenna Croxford |
TABLE OF CONTENTS
CIRCUMSTANCES OF DEATH............................................................................................................................................ 2
THE RELEVANT STATUTORY PROVISIONS............................................................................................................... 6
THE PREVIOUS HISTORY OF THE PROCEEDING................................................................................................... 7
THE JUDGMENT OF THE COURT OF APPEAL.......................................................................................................... 7
THE FINDINGS......................................................................................................................................................................... 10
THE SUBMISSIONS ON BEHALF OF THE PLAINTIFFS........................................................................................ 17
CONSIDERATION OF THE "FINDINGS"..................................................................................................................... 19
HER HONOUR:
Colleen Richman ("the deceased") died in sad circumstances on 23 September 1994. Her death was, in the normal course, investigated by the Deputy Coroner and findings delivered. The plaintiff who is the brother of the deceased applied under s.59 of the Coroner's Act 1985 for an order that the findings of the Coroner were void.
Circumstances of death
The deceased was shot and killed by Constable Gerard Keown at Fitzroy Street, St. Kilda.
On the morning of 23 September 1994 the deceased attended the Hanover Welfare Services Centre ("the Centre") at Fitzroy Street, St. Kilda. The function of the centre was to provide accommodation and health support services to women in need. Prior to her death the deceased was a client at the centre and she lived in a rooming house operated by it, the deceased having had a history of alcoholism and psychiatric illness.
On the morning of her death the deceased arrived at the centre at approximately 10.30 a.m. in an intoxicated state and carrying a hatchet. She entered the centre office. At the time of the arrival of the deceased it was coincidental that an employee of the centre, Ms Lazzaro, was speaking on the telephone to the treating psychiatrist, Dr McKendrick, of the deceased. The psychiatrist had telephoned to enquire as to the failure of the deceased to attend an appointment the previous day. The deceased asked to speak to Dr McKendrick and she did. Immediately thereafter an altercation occurred between the deceased and Ms Lazzaro who endeavoured to persuade the deceased to surrender the hatchet. The deceased was informed that if she did not surrender the hatchet she would be required to leave the centre. The deceased walked out of the office section of the centre into a courtyard area still bearing the hatchet. Ms Lazzaro immediately locked the door upon the departure of the deceased and consulted Dr McKendrick by telephone. As a result the police were called to the scene.
A patrol unit in the St. Kilda area was dispatched by D24 at 10.56 a.m. to the centre. The unit consisted of Constable Keown and Constable Sally Robertson. Keown and Robertson were told very little by the D24 radio operator who despatched them to the scene about the circumstances of the deceased. They were told by the operator that a female "was going berserk" with a tomahawk. The operator also advised " … said to be one female … in the main courtyard of the building apparently she is swearing and going off. Has an axe and is chopping up seats in the courtyard at this stage".
Upon arrival at the scene the police parked abruptly and alighted from the police vehicle drawing their service revolvers. In addition, Robertson carried a hand held portable radio. The two police officers did not carry long batons.
The layout of the centre was important. It was a reasonably modern building consisting of various offices and rooms at two levels constructed around a small internal courtyard and garden. The upper level had a balcony overlooking the courtyard. Access to the courtyard was available through three entrance points via alcoves or walkways: one from Fitzroy Street, one from Park Lane and a third access point from a car park at the rear of the centre. The access from the rear car park was via a walkway approximately six metres in length. The rear walkway finished at one end at a metal grille gate opening to the car park at the rear. At the other end the walkway finished at the eastern perimeter wall of the courtyard. At the courtyard end of the walkway there was a stairway to the upper level of the centre.
The two police officers entered the courtyard via the walkway abutting the rear car park. A number of persons were present on the site within the rooms of the centre, including the office where the deceased spoke to Ms Lazzaro, and on the upstairs balcony. Some of these persons directed the police to the deceased. When Constable Keown first saw the deceased she was near the office door. The constable pointed his service revolver at the deceased and whilst positioned within the walkway called on the deceased to put the hatchet down a number of times. At the same time Constable Keown gestured to the deceased with his left hand held out in front of him and the palm open towards the deceased. The deceased disregarded his command to drop the hatchet and began attacking the office door with the blunt end of the metal head of the hatchet demanding that the office door be opened to allow her admission.
Constable Robertson stood behind Constable Keown with her revolver drawn. Constable Keown requested that she call for assistance. Constable Robertson did so by way of the hand held radio and informed the D24 operator "We need backup urgently". The operator was able to hear loud screaming noises in the background when contacted by Constable Robertson. The operator informed Constable Robertson that "backup was about five seconds away". Meanwhile Constable Keown persisted with his demands that the deceased put down the hatchet. The deceased responded by screaming, yelling and swearing at him. Constable Keown placed his revolver on the ground and it is unclear but possible that Constable Robertson did likewise. In a statement to police who investigated the matter Constable Keown described a number of occasions when the deceased took a quick step towards him raising the hatchet before swinging it down as if she was about to throw the hatchet. Constable Keown said in his statement that the behaviour of the deceased caused him to fear for his safety. Constable Keown believed the circumstances constituted a "life threatening situation". At some point he picked up his service revolver. Constable Keown fired a single shot into the garden bed located behind the deceased. The deceased ignored his request to put the hatchet down and continued to menace him. In his statement to police Constable Keown said that the deceased yelled at him to "Shoot me. Shoot me". The deceased took a step forward and swung the hatchet. This action by the deceased caused the constable to partially retreat. Constable Keown requested the deceased again to put the hatchet down. In his statement to investigating police Constable Keown described the final movements of the deceased before he fired his service revolver:
"She then stepped forward again with her left foot and had the axe raised, and I felt that she was going to do the same thing that she had done previously, except this time she also stepped off with her right foot, and started running towards me. I'm not sure exactly what I said, but I said something like 'Get back, drop the axe'. She was running at me. She came through the gateway to the alcove area directly at me with the axe in a raised position. I thought this is it, she's going to kill me, I had the revolver pointed in her general direction and I fired the five remaining rounds instinctively at her body. While I was firing she got to about a metre and a half to 2 metres away from me, and I could see one round hit her in the chest region, which seemed to spin her sideways to her left. She seemed to stop and then turn away from me. This all happened so quickly, and I was so scared at that time. I didn't know if she had the axe or not, so I backed out of the alcove into the courtyard, dumped the empty rounds, and reloaded using a speed loader. I tried to keep her in sight as I feared she would come at me again. As I was reloading I saw her drop to her knees and fall onto her back."
At the time the shots were fired Constable Robertson did not see the movements of either Constable Keown or the deceased as she had turned behind the courtyard wall to transmit a message over the police radio. Immediately after the shooting ambulance assistance was sought and provided. The deceased was observed to not be breathing or displaying any bodily responses. On the afternoon of the same day an autopsy was conducted on the deceased and the conclusion reached that the cause of death was multiple gunshot injuries to the chest. The pathologist identified four gunshot injuries described as "distant gunshot injuries" indicating that there was no near contact at the time of discharge of the revolver. Further, the pathologist was of the opinion that each of the injuries was capable of causing death either alone or in combination. Toxicological analysis of the deceased disclosed a blood alcohol level of 0.3% together with levels of Fluoxetine, an antidepressant, and traces of Diazepam and Oxazepam, sedative drugs.
After the holding of an inquest between 11 October to 3 November 1995 the Deputy State Coroner reported his findings on 23 January 1996. In summary, the formal findings were:
(1)The deceased contributed to her cause of death by "consciously ignoring the lawful directions of Constable Keown and intentionally threatening him with the hatchet".
(2)The deceased lacked suicidal intent.
(2)Neither Constable Keown nor Constable Robertson contributed to the cause of death of the deceased.
(3)There was no basis upon which a finding of contribution could be made against the Victoria Police Force.
(4)There was no evidence that the psychiatric management of the deceased in the period immediately preceding her death contributed to her death.
The relevant statutory provisions
Section 19(1) of the Coroner's Act at the relevant time provided:
"19. Findings and comments of coroner
(1) A coroner investigating a death must find if possible -
(a) the identity of the deceased; and
(b) how death occurred; and
(c) the cause of death; and
(d) the particulars needed to register the death under the Registration of Births Deaths and Marriages Act 1959; and
(e) the identity of any person who contributed to the cause of death."
Section 19(1)(e) was repealed by the Coroner's (Amendment) Act 1999.
Section 59 of the Coroner's Act provides:
"59. New inquests and re-opening of inquests
(1)Any person may apply to the Supreme Court for an order that some or all of the findings of an inquest are void.
(2)The Supreme Court may declare that some or all of the findings of the inquest are void and may order the State Coroner –
(a) to hold a new inquest, or direct any coroner, other than the coroner who held the first inquest, to hold a new inquest; or
(b) to re-open (or direct another coroner to re-open) the inquest and to re-examine any findings.
(3) The Supreme Court may only make an order if it is satisfied that –
(a) it is necessary or desirable because of fraud, consideration of evidence, failure to consider evidence, irregularity of proceedings or insufficiency of inquiry; or
(c) there is a mistake in the record of the findings; or
(d) it is desirable because of new facts or evidence; or
(e) the findings are against the evidence and the weight of the evidence."
The previous history of the proceeding
The proceeding was commenced by originating motion wherein the plaintiff recited various grounds relied upon in the application for an order that the findings of the Deputy Coroner were void. Each of the grounds specified findings of the Deputy Coroner in which it was asserted that the findings were against the evidence and the weight of the evidence. On an application to be joined as a party, the Master declined to join Constable Keown as a defendant. However, he was permitted to intervene in the proceedings. The originating motion came on for hearing before Hampel J in June 1997.
By orders made on 11 September 1997 Hampel J ordered that the finding of the coroner be declared void as being against the evidence and the weight of the evidence and directed pursuant to s.59(1)(b) of the Act that the inquest be re‑opened and the finding be re‑examined by the State Coroner. The learned judge delivered reasons for the orders. Constable Keown appealed against the orders of Hampel J. The Court of Appeal allowed the appeal and set aside the orders of Hampel J and remitted the originating motion for hearing by a judge of the Trial Division (see Keown v Kahn and Anor (1999) 1 VR 69). Hence, the matter comes before me.
The judgment of the Court of Appeal
At first instance Hampel J concluded that on the basis of the evidence and the process of reasoning of the Deputy Coroner the finding that the deceased contributed solely to her own death was not open. On appeal, Callaway JA (at 71), with whom Ormiston and Batt, JJ.A agreed, considered that the "point of substance" was whether the conclusion of the Deputy Coroner that Constable Keown did not contribute to the cause of death or the conclusion that the constable acted in self‑defence was capable of challenge under s.59 of the Act. Calaway JA observed (at 74):
"A coroner may make many findings in the sense that he or she takes a view of the evidence or particular aspects of it, but they are not the 'findings' referred to in ss.19(1) and 59. The latter are restricted to ultimate findings as to the identity of the deceased, how death occurred and so on.
The point of substance was earlier identified as whether the second respondent's [the Deputy Coroner] conclusion that the appellant [Constable Keown] did not contribute to the cause of death or that he acted in self-defence was capable of challenge under s.59. In whichever of those two ways the conclusion is expressed, it is not a finding as to 'the identity of any person who contributed to the cause of death'. On the contrary, the statement [of the Deputy Coroner] is a statement as to the identity of two persons who, in the second respondent's opinion, did not contribute to the cause of death. His conclusion about self-defence elsewhere in the record of investigation is in no better case so far as s.19(1)(e) is concerned. The matter may be tested by considering the position if the coroner had held the inquest with a jury and asked them to identify any person who contributed to the cause of death. An answer that the appellant did not contribute to the cause of death, or that he acted in self-defence, would have been non‑responsive."
Further (at 76) Callaway JA observed:
"The findings by a coroner as to how death occurred and the cause of death should, where that is possible, identify any person who contributed to the cause of death. Section 19(1)(e) serves no purpose other than to ensure that that is done. The reference to contribution to the cause of death reflects the commonplace truth that it is sufficient if a person's acts or omissions are a cause of a relevant event. Civil juries are, for example, regularly asked whether the negligence of the defendant was a cause of the plaintiff's injuries. The test of contribution is solely whether a person's conduct caused the death. It may have been the only cause or one of several causes. There are also cases where no one satisfies the description in s.19(1)(e), as in the case of a death solely from natural causes. In determining whether an act or omission is a cause or merely one of the background circumstances, that is to say a non‑causal condition, it will sometimes be necessary to consider whether the act departed from a norm or standard or the omission was in breach of a recognised duty, but that is the only sense in which para. (e) mandates an inquiry into culpability ... Parliament expressly prohibited any statement that a person is or may be guilty of an offence. The reasons for that prohibition apply, with even greater force, to a finding of moral responsibility or some other form of blame: the proceeding is inquisitorial; the conclusion would be more indeterminate than a conclusion about legal responsibility; and there would be no prospect of a trial at which the person blamed might ultimately be vindicated by an acquittal.
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 . It is of the first importance that, where a person's reputation is at stake, the relevant facts are clearly brought out. It might well be thought that, as para. (e) adds nothing to paras (b) and (c) and a finding of contribution is likely to cause injustice if its significance is misunderstood, s.19(1)(e) should be repealed."
Finally, (at 78) Callaway JA concluded:
"The sole ground argued below was predicated on the assumption that the second respondent's conclusion that the appellant did not contribute to the cause of death was a finding under s. 19(1)(e). That assumption was false and the true construction of para. (e) is that he did so contribute. The real dispute lies elsewhere. The appeal should therefore be allowed and the orders made below, except as to costs and liberty to apply, set aside. Subject to any further submissions that counsel may wish to make, I am disposed to think that the originating motion should be remitted to the Trial Division. It would then be for the judge to determine any application for further amendment that may be made and whether the record of investigation discloses a finding within the meaning of s. 19(1) that the first respondent still desires to challenge."
By way of obiter dictum (at 77) Callaway JA observed:
"The ground that the findings are against the evidence and the weight of the evidence has also been the subject of judicial criticism but, in my respectful opinion, the criticism proceeds on a misunderstanding. All that was intended was that perverse findings might be set aside, ie findings for which there was no evidence or that no reasonable coroner could make. The scope of review is therefore the same as that with which, in Anderson v Blashki (1993) 2 VR 89, 92, 97, Gobbo J contrasted it by reference to Young v Paddle Brothers Pty Ltd (1956) VLR 38, 41."
In summary, the Court of Appeal held:
(1)"Findings" for the purposes of ss.19(1) and 59 of the Coroner's Act are constituted by the matters of the identity of the deceased and so on (as set out in paragraphs (a) to (e) of s.19(1)).
(2)The test of contribution is solely whether the conduct of a person caused the relevant death (and may be the only cause or one of several causes).
(3)A person who kills necessarily contributes to the cause of death.
(4)The true construction of paragraph (e) of s.19(1) of the Act is that Constable Keown did contribute to the death of the deceased.
The findings
The grounds relied upon by the plaintiff are uniformly based upon the premise that various findings of the Deputy Coroner were against the evidence and the weight of the evidence. Turning to the task before me, I must determine whether the record of investigation of the Deputy Coroner discloses a finding within the meaning of s.19(1) of the Act. It is appropriate at the outset to consider the analysis and course of reasoning contained in the record of investigation and identify the findings, if any, of the Deputy Coroner.
An examination of the record of investigation reveals that at the outset it contains largely a description of the events leading up to and immediately after the death of the deceased and provided a general summary of the pathology and forensic evidence. Thereafter before reaching the ultimate findings the report contains various matters of a conclusiory nature said on behalf of the plaintiff to constitute "findings" for the purposes of s.19(1) of the Coroner's Act. Those matters may be summarised and identified (including references to relevant paragraphs of the record of investigation) as follows:
(1)Six shots were fired by Constable Keown, the first being a warning shot fired in the direction of a garden bed behind the deceased; the second shot striking the clothing and jewellery of the deceased and eventually lodging beneath the metal head of the hatchet held aloft by the deceased; the third and fourth shots entered the body of the deceased and were later recovered at autopsy; the fifth and sixth shots passed through the body of the deceased and were later recovered from the area described as 'Park Lane' (para. 17).
(2)Constables Keown and Robertson should have awaited the attendance of back-up assistance before confronting the deceased (para. 21).
(3)On the basis of the information provided to the police by D24 Constables Keown and Robertson were entitled to believe they were entering "an extremely dangerous and potentially life threatening situation" (para. 21).
(4)Constables Keown and Robertson were in a position to make their own assessment as to whether immediate action was required (para .21).
(5)The police were entitled to conclude that the office that was the subject of attack by the deceased was occupied and that the deceased was prepared to use the hatchet in an attempt to gain entry (para. 21).
(6)The actions of Constables Keown and Robertson in confronting the deceased and requesting that she put down the hatchet were appropriate (para. 21).
(7)There was a breakdown in communications between Ms Lazzaro and the St Kilda Police Station at the time of the initial report in that insufficient information was conveyed to the police (para. 22).
(8)The information provided by Ms Lazzaro to the St Kilda Police Station was insufficient to warrant a request for the attendance of a CAT Team (para. 25).
(9)The failure of the psychiatrist Dr McKendrick or Ms Lazzaro to request the attendance of a CAT team was not an omission that contributed to the death of the deceased (para. 26).
(10)The circumstances existing immediately before Constable Keown shot the deceased "necessitated him shooting her in self-defence" (para. 28).
(11)At the time Constable Keown shot the deceased he was entitled to assume that he and Constable Robertson were "in immediate danger of attack and in the circumstances he was justified in firing in self‑defence" (para. 28).
(12)The evidence should be accepted and relied upon of the witness, Ms Alette Rennie who was located on the balcony above the courtyard and who observed the deceased and Constable Keown. She estimated a distance of one and a half metres separation between them and immediately before hearing a gunshot observed the deceased to begin to move forward "one and a bit steps fairly quickly and in a very aggressive manner with the hatchet raised" (para. 29).
(13)Notwithstanding the evidence of Ms Rennie no-one other than Constable Keown was in a position to state the position of the deceased or her movements when she was shot (para. 30).
(14)The distance separating Constable Keown and the deceased at the time of the shooting may have been as much as five metres but notwithstanding such distance the constable had minimal time to defend himself from attack (para. 32).
(15)Constable Keown believed that his partner, Constable Robertson, was to the rear of him and was entitled to believe he could not retreat backwards quickly to avoid attack (para .32).
(16)Constable Keown was entitled to assume a "worst case scenario" (para. 32).
(17)There was no "realistic opportunity" for Constable Keown to attempt to disarm the deceased (para .32).
(18)Although Constable Keown did not give evidence during the inquest his statement to the investigating police was substantially corroborated by many witnesses and was consistent with forensic evidence and, therefore, deserved to be accepted as "being substantially accurate and should not be ignored" (para. 33).
(19)The forward movement of the deceased towards Constable Keown immediately before the shooting was more threatening than it had been on previous occasions such as to create a belief in the mind of the constable that "he would be killed unless he defended himself" (para. 34).
(20)There was no evidence to support a finding that the first bullet which lodged in the hatchet handle carried sufficient force such as to dislodge the weapon from the deceased (para. 35).
(21)Constable Keown was unable to prevent three shots to the back of the deceased after the deceased rotated with the impact of the first bullet that entered her body (para. 37).
(22)At the time of the shooting the deceased was posing an immediate threat to Constable Keown which "reasonably caused him to believe it was necessary to protect his life" and that he used no more force than was reasonably necessary (para. 37).
(23)The failure of the police to carry their long batons did not contribute to the cause of death (para. 38).
(24)Whilst the firing of the warning shot was dangerous it was done in the belief that there was an immediate danger (para. 39).
(25)There was not sufficient evidence to make a finding that either Constable Keown or Constable Robertson endangered the public by their actions (para. 40).
The Deputy Coroner proceeded to make a number of other observations concerning police procedure and investigations after the death of the deceased. He thereafter proceeded to state his formal findings as previously stated together with recommendations arising from the circumstances surrounding the death of the deceased.
Sub-section (1) of s.19 makes it mandatory for a coroner to find certain matters if possible: the identity of the deceased, how death occurred, the cause of death, formal registration particulars and the identity of any person who contributed to the cause of death. On the basis of the record of investigation of the Deputy Coroner I am satisfied that pursuant to s.19(1)(a) of the Act the identity of the deceased has been properly found, namely, Colleen Richman. On the basis of the matters set out in the record of investigation I am satisfied that the Deputy Coroner has properly found how the death of the deceased occurred as required of him pursuant to s.19(1)(b) of the Act, namely, by the shooting of the deceased by Constable Keown. Further, I am satisfied that the Deputy Coroner properly found the cause of death of the deceased pursuant to s.19(1)(c) of the Act, on the basis of the report of the pathologist to have been caused by the entry of the bullets fired by Constable Keown to the body of the deceased. In addition, on the face of the record of investigation it appears that I can be satisfied that the Deputy Coroner found the necessary formal particulars for the purposes of satisfying s.19(1)(d) of the Act. In any event these matters were not in controversy between the parties before me.
I turn now to consider whether the record of investigation discloses a finding as to the identity of any person who contributed to the cause of death.
As observed by Callaway JA in his reasons the Deputy Coroner did not find that Constable Keown or Constable Robertson contributed to the cause of death of the deceased, rather, the Deputy Coroner made a negative finding to the effect that they did not contribute to the cause of death. As the learned judge observed s.19(1)(e) of the Coroners' Act does not enable or require a coroner to make a negative finding that a person did not contribute to the cause of death, rather, a positive finding is required if appropriate as to the identity of any person who actually contributed to the cause of death.
Despite the suggestion of Callaway JA (at 78) that the plaintiff might consider whether the record of investigation disclosed a finding that the plaintiff wished to challenge, the plaintiff persisted with his challenge on the same grounds as those before the Court of Appeal.
The grounds relied upon by the plaintiff were:
1.The finding that the circumstances existing immediately before the deceased was fatally shot by Constable Keown necessitated him shooting her in self defence is against the evidence and against the weight of evidence.
2.The finding that at the time he shot the deceased Constable Keown was entitled to assume that he and Constable Robertson were in immediate danger of attack and in these circumstances he was justified in firing at her in self-defence is against the evidence and against the weight of the evidence.
3.The finding that Constable Keown had minimal time to defend himself from attack (paragraph 32 of the findings) is against the evidence and against the weight of the evidence.
4.The finding that Constable Keown believed he could not retreat quickly backwards in an attempt to avoid attack is against the evidence and against the weight of the evidence.
5.The finding that Constable Keown assumed a worse case scenario is against the evidence and against the weight of the evidence.
6.The finding that no realistic opportunity presented itself for Constable Keown to attempt to disarm the deceased is against the evidence and the weight of the evidence.
7.The finding that the only plausible inference to be drawn from Constable Keown's act of firing at the deceased was that her forward movement toward him was sufficiently more threatening than it had been on previous occasions when he had not fired, or when discharging the warning shot, as to create in his mind a belief that he would be killed unless he defended himself is against the evidence and against the weight of the evidence.
8.The finding that Constable Keown could not prevent the three shots in the back of the deceased after the impact of the first shot is against the evidence and against the weight of the evidence.
9.The finding that at the time the deceased was shot she was posing an immediate threat to Constable Keown which reasonably caused him to believe it was necessary to protect his life and in acting to do so he used no more force than was reasonably necessary is against the evidence and against the weight of the evidence.
10.The finding that the firing of a warning shot was justified in the circumstances is against the evidence and against the weight of the evidence.
11.The finding that the police response did not contribute to the deceased's death is against the evidence and against the weight of the evidence.
12.The finding that Colleen Richman contributed to her own death is against the evidence and against the weight of the evidence.
13.The finding as to the order and effect of each of the bullets, specifically that the second of the series of five shots entered the area of the deceased's left breast and that the third and fourth shots in the series entered the posterior aspect of the right shoulder and right upper back respectively and that the final shot was to the left mid back, is against the evidence and against the weight of the evidence.
14.The finding that there was insufficient evidence before the Inquest to determine the merit of Counsel's submission that only lip service was paid to guideline paragraph 3.4 of the Police Standing Operating Procedures with Internal Investigations having no input and only being informed from time to time of the progress of the investigation is against the evidence and the weight of the evidence.
15.The finding that Colleen Richman was the sole contributing cause of her death was against the evidence and the weight of the evidence.
Since the judgment of the Court of Appeal was delivered s.19(1)(e) was repealed by the Coroner's (Amendment) Act 1999. The amending Act came into operation on 1 July 1999. As consequence, at the time the matter came before me the statutory right under s.59 to apply to the Supreme Court for an order that some or all of the findings of an inquest are void insofar as such findings related to findings under s.19(1)(e) had been removed. Necessarily, the changes in the legislation raise the issue as to whether the amendment constitutes a substantive change affecting existing rights. I consider that prior to the amendment the plaintiff had a substantive right under s.59 to challenge a finding made or purported to be made under s.19(1)(e). The amending legislation did not operate retrospectively to remove the pre-existing right of the plaintiff under ss.19(1)(e) and 59 of the Act: Statutory Interpretation in Australia, Pearce & Geddes, 4th ed. p.243 ff; Maxwell v Murphy (1957) 96 CLR 261, 297. The plaintiff is entitled to pursue his pre-existing rights under s.59 with respect to findings made by the magistrate under paragraph (e) prior to its repeal. I observe that none of the parties raised this issue.
The submissions on behalf of the plaintiffs
It was submitted by Mr Freckelton on behalf of the plaintiff that there were a number of factors that demonstrated that the "findings" of the Deputy Coroner ought be set aside on the grounds that the said findings were against the evidence and against the weight of the evidence. The factors were:
(1)The refusal of Constable Keown and Constable Robertson to give evidence or participate in a video re-enactment of the scene during the inquest.
(2)The acceptance by the Deputy Coroner of the statements of Keown and Robertson to the investigating police notwithstanding the fact that they did not give evidence before the inquest.
(3)The non-calling before the Deputy Coroner of the investigating police to whom Keown and Robertson made statements.
(4)Alleged inconsistencies between the statements made by Constable Keown to the investigating police.
(5)The lack of evidence or satisfactory evidence of the events as transpired between Constable Keown and the deceased immediately prior to Keown discharging his revolver.
(6)The failure of the Deputy Coroner to consider other plausible explanations for the actions of Constable Keown including that he was untruthful in his statements to investigating police.
(7)The acceptance by the Deputy Coroner that Constable Keown would not have fired the shots at the deceased unless his life was threatened without the opportunity to test the belief of Constable Keown.
(8)The lack of evidence or sufficient evidence to support the conclusion that Constable Keown believed he was unable to retreat backwards away from the deceased immediately prior to the shooting.
(9)The failure of Constable Keown and Constable Robertson to utilise other measures to disarm the deceased such as long batons.
(10)The position of the deceased immediately after the shooting was inconsistent with the statement of Constable Keown that the deceased was coming towards him in a menacing manner such as to cause him to believe his life was threatened.
Mr I. Hill QC who appeared with his instructing solicitor Mr A. Hargreaves for Constable Keown submitted that it is only the findings made by the Deputy Coroner and not the discussion of the evidence that leads to such findings that may be declared void under s.59. I note that so much is apparent from the reasons of Callaway JA. It was submitted by Mr Hill, further, that all of the grounds relied on by the plaintiff, save ground 12, were concerned with matters that are properly characterised as discussions, even conclusions, of the evidence. Nevertheless, Mr Hill took me through the evidence before the Deputy Coroner on the basis that this court in determining an application under s.59(3)(d) is required to have regard to all the evidence: Anderson v Blashki (1993) 2 VR 89; The Secretary to the Department of Health and Community Services v Gurvich (1995) 2 VR 69. Mr Hill submitted, also, that it was not open to this court to interfere with the findings of the Deputy Coroner in any event merely because I might come to a different view on all the evidence. He submitted that I was only able to do so if the finding was not open on the evidence: Warren v Coombes (1979) 143 CLR 531; M. v The Queen (1994) 181 CLR 487. Furthermore, Mr Hill urged that I not interfere with the findings of the Deputy Coroner because he had the advantage of seeing and hearing the witnesses (and, I interpolate, the opportunity to inspect the scene and consider the evidence in context). It was submitted that I should be hesitant to interfere with the findings of the Deputy Coroner.
Consideration of the "findings"
Although I shall not mention them all I have taken account of each of the arguments of counsel and the cases cited. I largely agree with and accept the submissions made by Mr Hill. In having had the opportunity to consider the evidence before the Deputy Coroner I do not consider that there is any basis to interfere with the findings of the Deputy Coroner being the formal findings under s.19(1) of the Act save those that ought have been made under paragraph (e). On proper analysis I consider that each of the criticisms launched by the plaintiff against the alleged "findings" of the Deputy Coroner in the record of investigation are properly construed as challenges to that which was described by Callaway JA (at 74) as expressions of a view of the evidence or particular aspects of such evidence. The matters described and concluded by the Deputy Coroner throughout the record of investigation other than the formal matters under s.19(1)(a) – (e) are not the "findings" referred to in ss.19(1) and 59 of the Coroner's Act. It follows, therefore, that with one exception there is no basis upon which I ought interfere with the conclusions or findings of the Deputy Coroner throughout the record of investigation. The only matter that can properly be the subject of challenge with respect to the formal findings of the Coroner pursuant to s.19(1) of the Act is the failure of the Deputy Coroner to find the identity of Constable Keown as a person who contributed to the cause of death of the deceased. It was made abundantly clear in the judgment of Callaway JA that upon the true construction of paragraph (e) of s.19(1) of the Coroner's Act Constable Keown did contribute to the cause of death.
Applying the analysis of Callaway JA it is apparent that none of the grounds relied upon by the plaintiff properly challenge the findings of the Deputy Coroner under ss.19(1) and 59 of the Coroner's Act save for the grounds concerned with the finding under s.19(1)(e). The relevant grounds relied upon by the plaintiff with respect to s.19(1)(e) were that the police response did not contribute to the death (clause 11), that the deceased contributed to her own death (count 12) and that the deceased was the sole contributing cause of her death (ground 15).
Having taken the opportunity to consider the extensive material relied upon by the plaintiff I am satisfied that it was open to the Deputy Coroner to find that the deceased contributed to her own death. The Deputy Coroner was entitled to so find for the purposes of s.19(1)(e) of the Act on the basis of the conduct of the deceased immediately before the shooting both within and without the office of the centre, her demeanour and use of the hatchet in the area of the office doorway and the internal courtyard and her behaviour towards Constable Keown and Constable Robertson including her failure to follow the requests to put down the hatchet. It may be that the degree of contribution by the deceased was limited. The requirements of s.19(1)(e) do not impose an obligation upon the Deputy Coroner to ascertain and determine the degree of contribution of a person to the relevant death. It is sufficient that the Deputy Coroner made a finding that the deceased contributed to her own death. The only error I find is that the Deputy Coroner found that Constable Keown did not contribute to the death of the deceased. As stated forcefully by Callaway JA in the Court of Appeal the fact is that Constable Keown did contribute to the cause of death of the deceased by way of shooting her. It follows that the finding of the Deputy Coroner that the deceased was the only person identified as contributing to the cause of death was against the evidence and the weight of the evidence. Hence, ground 12 is made out on the basis that the finding was incomplete.
It is necessary to address ground 11 of the grounds relied upon by the plaintiff. Ground 11 challenges the finding that "the police response" did not contribute to the death of the deceased. I have taken the view that the reference to "the police response" is intended to include Constable Keown. The Deputy Coroner concluded that there was no basis upon which contribution could be found against "the Victoria Police Force". Doubtlessly the conclusion was addressed to the entire conduct and involvement of the Victoria Police Force in all the circumstances surrounding the death of the deceased. The conclusion as it presently stands is inaccurate as it excludes the contribution of Constable Keown. However, for the reasons already adverted to in the judgment of Callaway JA, the negative conclusion concerning the police response does not constitute a "finding" under s.19(1). Ground 11, therefore, is not made out. Ground 15 of the grounds challenges the alleged finding of the Deputy Coroner that the deceased was the sole contributing cause of her death. An examination of the record of investigation reveals that the Deputy Coroner made no such finding. Whilst the Deputy Coroner reached the finding wherein he identified only the deceased as contributing to her death such finding did not constitute a finding to the effect that she was the sole cause. Ground 15, therefore, is misconceived.
For the reasons stated I find that each of the grounds relied upon by the plaintiff save ground 12 is not made out. Insofar as ground 12 is made out it is appropriate that the matter be remitted to the Coroner with a direction that a finding be made pursuant to s.19(1)(e) of the Coroner's Act (prior to its amendment by the Coroner's (Amendment) Act 1999) that Constable Gerard Keown contributed to the death of the deceased. In so doing the Coroner ought make an appropriate finding in the record of investigation and thereafter, to re-visit the words of Callaway JA (at 76) "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". Insofar as the Coroner may consider it appropriate to make additional observations with respect to such findings I consider that that is a matter appropriate for the further determination and consideration by the Coroner and it is not appropriate for me to interfere with that process.
It follows that I will make a declaration pursuant to s.59(2) that the finding of the Coroner identifying only the deceased as contributing to the cause of death is void. Pursuant to s.59(3) I will order the Coroner to re-open the inquest into the death of Colleen Richman and re-examine the findings made pursuant to s.19(1)(e) of the Act in accordance with these reasons. I make the further observation that if the Deputy Coroner who considered the matter at first instance was available to make the finding I have directed that would be an appropriate course. I do not consider that the matter warrants determination by a different Coroner or Deputy Coroner.
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