Khan v Keown

[1999] HCATrans 21

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M41 of 1998

B e t w e e n -

PHILIP KHAN

Applicant

and

GERARD KEOWN

First Respondent

HIS WORSHIP IAIN WEST (in his capacity as Deputy State Coroner)

Second Respondent

Application for special leave to appeal

GLEESON CJ
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 12 FEBRUARY 1999, AT 10.01 AM

Copyright in the High Court of Australia

MR D.F. HORE-LACY, QC:   May it please the Court, I appear with my learned friend, MR A.N. MURDOCH, for the applicant.  (instructed by the Victorian Aboriginal Legal Service)

MR W.B. ZICHY-WOINARSKI, QC:   May it please your Honours, I appear with my learned friend, MR A. HARGREAVES, on behalf of the first respondent, Keown.  (instructed buy Kenna Croxford & Co)

GLEESON CJ:   There is a certificate from the Deputy Registrar to the effect that she has been informed by a representative of the second respondent that the second respondent does not wish to be represented at the hearing of this matter and will abide the decision of the Court save as to costs.  Yes, Mr Hore-Lacy.

MR HORE-LACY:   If it please the Court, the Court of Appeal judgment in this matter has changed the role of the Coroner in this State and probably others to some extent in a number of significant ways.  We would say, first of all, as to the meaning of the word “contribution” set out in section 19(1)(e) of the Coroners Act which had previously been analysed by a number of Supreme Court judges, including Mr Justice Hedigan in Hallenstein’s Case, an analysis which had, as a matter of practice, been adopted by the coroners in this State.  That appears at the judgment in Hallenstein’s Case of Mr Justice Hedigan at page 16 and page 19.

If I could just take your Honours to page 16, at about point 5.  The judgment reads:

In my view it was not the intention of the legislation that the coroner should be so limited in his or her consideration of, and findings about, the contribution by a person or persons to the cause of death of a deceased person that the coroner had to be satisfied that an act or omission of that person was such as to create legal liability in the person, civil or criminal, before a finding of contribution to the cause of death could be made.

And at page 19, at the bottom of the page:

I believe, sufficient to leave the matter without further elaboration on the basis of the common sense determination of contribution, rather than the consideration of contribution as a philosophical or scientific abstraction.

GLEESON CJ:   Now, that seems to support the proposition that appears on the top of page 67 of the application book in the first two sentences, does it not?

MR HORE-LACY:   Yes, your Honour.  It goes on to say:

In most cases, the determination that there has been contribution to the cause of death is likely to involve legal liability or culpability; but it is not the intention of the Act that it must necessarily be so or pronounced to be such.  It is enough to say that, since it is not simply an exercise in the logical progression of events –

and this is the significant part, in our submission –

some element of departure from the reasonable standards of behaviour will ordinarily be thought to be required, and must be properly established.

As we have submitted before, that is the definition of “contribution” which has been adopted.  In one of the other cases, I think Blashki, it speaks of negligence but, certainly, there has been involved in this State, in the definition of “contribution”, some element at least, whether it be negligence or otherwise, of departure from acceptable standards.

Second, the role of the appeal court, set out in section 59 of the Coroners Act, has been restricted significantly.  In Hallenstein’s Case Justice Hedigan wrote, at page 13, the described state of satisfaction:

is not confined to errors of fact or law.  It is on the basis that it is necessary or desirable to do so.  This confers, on the relevant ground “consideration of evidence”, a very wide discretion, wider than customarily found on judicial review.

That has been the test which was adopted by Justice Southwell and also Justice Gobbo in Blashki’s Case and Gurvich’s Case.

Your Honours will have seen that what the Court of Appeal has done is restricted the power of appeal to perverse findings; what has been referred to as “perverse findings”, that is, where there was no evidence or no reasonable coroner could come to the decision that it did.  In our submission, as far as the threshold test is concerned, they are very important and quite dramatic changes to the operation of the Act and the conduct of the coroners.

Set out in the written submissions, section 59(3), that is the appeal provision, is reflected in the legislation of three other States or Territories:  Section 52 of the Western Australian Coroners Act, section 46 of the ACT Coroners Act, which is not identical but similar, and section 58 of the Tasmanian Coroners Act.  The first and third provisions, as far as appeal is concerned, is identical to the section 59 in the Victorian Act and section 46 of the ACT Act is very similar.

GLEESON CJ:   Could I take you back to page 67 of the application book which is the concluding paragraph in the judgment of Mr Justice Callaway.  What submissions do you make about the first three sentences on that page?

MR HORE-LACY:   Well, the first sentence is:

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 section 19(1)(e).

It had been considered by the cases that I have referred the Court to that, indeed, the question of contribution was a finding.  Mr Justice Callaway said that the finding that a person did not contribute was not a finding of contribution within the Act.  We would submit that that is too narrow a construction of the meaning of “contribution”.  What the second sentence means:

That assumption was false and the true construction of paragraph (e) is that he did so contribute. 

What his Honour was saying was that “contribution” had been understood as to meaning some degree of departure from acceptable standards.  The Coroner found that Constable Keown did not contribute inasmuch as that he did not depart from acceptable standards.  But his Honour, when saying, “That assumption was false and the true construction of paragraph (e) is that he did so contribute”, meaning within the definition of the Court of Appeal, he contributed because he shot Colleen Richman and so he contributed in a proximal way or a causative way which was in accordance with the interpretation of the Court of Appeal meaning of “contribution”.

GLEESON CJ:   Is your proposition that a person cannot blamelessly contribute to somebody else’s death?

MR HORE-LACY:   Within the meaning of the operation of the Act, that is correct, and that is how it has been interpreted in this State, with “contribution” involves some sort of departure of standards.  Indeed, the finding in this case was that Constable Keown did not contribute, applying that.  We would submit that in most cases contribution or contribution in a causative sense is dealt with by section 19(1)(c), that is, how and why the – however it is expressed - - -

GLEESON CJ:   Your proposition is that if the Coroner finds that somebody killed somebody else but did so without blame, the proper way to express that finding is to say he did not contribute to the death of the deceased?

MR HORE-LACY:   Yes, that is correct.  Considering the plain use of the language, it might seem a little strange, however, the way it has been interpreted, that has been the position.  But we would say even if that is wrong and even if that would or should involve a finding of contribution if there was no blame, that the essential function of the Coroner is, in fact, to look to that area.  We would say that if it is just a matter of recording who caused the death, and the date, and the circumstances, and the brief circumstances as described by the Court of Appeal, then the Coroner’s function would be reduced to a point where, really, it, in many cases, would have no function at all if, indeed, the bare circumstances surrounding the death were not in question.

GLEESON CJ:   Now, what do you say about the third sentence on page 67?

MR HORE-LACY:   “The real dispute lies elsewhere.”  Well, the real dispute his Honour is referring to is the circumstances surrounding the death.

GLEESON CJ:   Yes, but his Honour seems to be saying, as I understood him, that an attempt is being made to use technical questions of construction of the Act to provide a forum for litigation of a dispute that is, in reality, quite different.

MR HORE-LACY:   Yes.  Well, in my submission, he was not going that far because the interpretation of the authorities beforehand was that the essential findings could only be appealed against.  The finding of “contribution” was an essential finding.  Consequently, what happened when it went before the appellate court:  there were a number of separate and individual grounds of appeal against findings which we would say were encompassed, and his Honour was of the view that, really, the finding that there was no contribution or that Colleen Richman was the sole contributor was the real and only finding that should be impugned, and the case proceeding on that basis, but all the other elements were relevant.

Then, of course, when it gets to the Court of Appeal stage it is reversed a bit by saying “contribution” only relates to the proximal or immediate cause or causative considerations and the real argument lies elsewhere.  The reason your Honours may think is why this appeal has been brought because the matter has been sent back and if the appellate charge is restricted to making a decision as to whether or not there has been a perverse finding, that is extremely restrictive and it may be that the findings also become relevant but the finding of contribution is not a matter that can be gone into.  In our submission, this Court should decide, eventually, that “contribution” does involve some blame or at least the Coroner’s function involves some departure.

I wanted to take the Court to part of the Norris Report which this Act is based on, in particular, the part that his Honour Justice Callaway referred to in supporting ‑ ‑ ‑

McHUGH J:   It is not in your bundle of documents, is it?

MR HORE-LACY:   I am sorry, the Norris Report?  It should have been forwarded.  I have been told that copies have been handed up.  I am sorry, it is at page 62 of the application book, page 9 of the judgment of Justice Callaway.  Your Honours will see that report, that paragraph set out in support of the decision that, really, the Coroner’s verdict or decision is not to import blame and it is supported by the first respondent’s submission which is in paragraph 13, where it is said:

The Norris Report makes it clear that the function of a Coroner should not be to attribute blame but to carry out a public investigation where the process is transparent and the public can form its own opinions.

Now, we would submit that really is not the complete finding and observation of Sir John Norris.  If your Honours go to paragraph 153, page 114, you will see that paragraph replicated, but it goes on to read, in 154:

There is a danger in so limiting the coroner or jury. 

That is, the danger in limiting them to making a blameless finding.

If in relation to a death there appears on the evidence before the coroner to be an element of blame, and the coroner or jury is forbidden to say anything about it, persons interested or the public generally may feel that the coroner is not discharging his responsibilities.  The reasons which I have advanced for the limitations recommend may not be apparent to or perhaps comprehensible by some people.  It is in my opinion not possible to disregard this problem.  I agree with the solution suggested by the Brodrick Committee., viz, that if it appears to the coroner that there may have been some departure from proper standards which, if uncorrected might result in further danger to individuals, he should have the right to announce in public and in neutral terms that he is taken steps to have the circumstances of the death referred to an appropriate expert body or public authority for such inquiry and action as it may think fit.

Now, that has not been done in the Coroners Act at all.  That has not been adopted.

There is another recommendation which has been referred to and that is a recommendation at paragraph 123, page 91 and 92 in the Norris Report, that a coroner’s finding should not:

include any statement of legal responsibility or express any conclusion of law.

Now, that is similar to a recommendation as far as the criminal law is concerned.  But that has not been picked up as well.  So, it can only be assumed that Parliament did not intend those parts of the recommendations to be picked up.

Your Honours will see that it has picked it up in relation to the criminal responsibility in subparagraph (3).  That is:

A coroner must not include in a finding or comment any statement that a person is or may be guilty of an offence.

But it is silent as far as civil liability is concerned.

If “contribution” is restricted to the Court of Appeal meaning, the Court is entitled to ask what real purpose does the inquest serve.  The submission concerning public airing, being the main function of an inquest, ignores the factor that, first of all, in most inquests there are only a handful of people there.  Most inquests are not reported by the press and, as this Court will appreciate, even if they are the interests of the press is not always identical to a balanced and complete coverage of what happens at an inquest.

In relation to that point, I would just finally add this:  because the Court of Appeal has decided that “contribution” is not to import any

departure from standard or blame, and it has come to the conclusion that the identity of the person or people who caused the death can come under section 19(1)(b), “how death occurred”, then section 19(1)(e) is not necessary and should be repealed.  We would say that the argument the other way is much stronger, that Parliament would not have inserted that section unless it had a reason for inserting it.  In the circumstances, our submission is that the only reason can be the one advanced.  It must be assumed that it was there for some sort of purpose.

If I could go to ground 2:  the Court of Appeal decision that was intended in section 59(3)(d) of the Coroners Act was that only perverse findings may be set aside.  It is submitted that, one, the court was placing too much literal reliance in what was said at paragraph 164 of the Norris Report.

McHUGH J:   But there is another argument, is there not?  I mean, the words “against the evidence and the weight of the evidence” are words almost of technical meaning, were used in respect of jury verdicts for more than a century, were used in New South Wales until as recently as 1970, and they mean or they were always understood as meaning exactly what the Court of Appeal said at page 65 of its judgment.

MR HORE-LACY:   Yes, that is correct.  Our submission is that their Honours have interpreted that too literally.  When the Norris Report talks about blame being attributed - and, really, one wonders why it would not say we are going to get rid of blame so we do not have to worry about that sort of case, we would say that that case is illustrative, but when the Norris Report talks about appeals being against the evidence and the weight of evidence, that as your Honour has, with respect, quite correctly said, the Court of Appeal has picked up the test for criminal or civil jury verdicts, not where reasons are given, which Warrens v Coombes really applies to.  Also, it ignores the other parts of section 59.

GLEESON CJ:   Yes.  Thank you, Mr Hore-Lacy.  Mr Zichy-Woinarski.

MR ZICHY-WOINARSKI:   If your Honours please.  Your Honours, if we can deal with ground 1 first of all.  The Coroner, of course, at the time he made his findings, was obliged to have regard to the decision of Justice Hedigan, being a single judge of the Supreme Court.  We take issue with our learned friend as to support to be found in the earlier two cases that he has referred to. In Anderson v Blashki, Justice Gobbo dealt with the degree of satisfaction that was required to determine whether somebody had contributed to the cause of death.  The allegation there being a health professional had assaulted the deceased thereby causing or being part of the cause of the death, and he eventually determined on the Briginshaw v Briginshaw test. 

In the Health and Community Services v Gurvich Case, Justice Southwell was again considering the requisite standard or the degree of proof required to make a finding that health professionals, again, had breached their duty of care so far as the deceased was concerned, and again set it on the Briginshaw v Briginshaw test.

The only case that really assists our learned friend is the decision of Hedigan J and we submit that the decision of the Court of Appeal in this regard is correct and the decision of Hedigan J is incorrect.  One of the primary reasons why we say that is it is quite clear that the Court of Appeal had drawn to its attention the whole of the Norris Report and had regard to the Norris Report, which is something that is omitted in the reasoning of Justice Hedigan.

Now, if we can just then take the Court to the application book and, in particular, at page 63.  What the court determined was – and I am looking at line 9, that:

Section 19(1)(e) serves no purpose other than to ensure that that is  done.

Namely, that the identity of “any person who contributed to the cause of death” is identified.  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.  In other words, you have to identify those people who cause the death and any person who may have also helped cause or bring about the death in a true causation sense and, in that regard, we refer the Court, without saying any more, to the type of statement made in March v Stramare.

Now, the other thing that the court had to say that may be relevant about section 19(1)(e) is at page 64, and if I may just take the Court to the application book, at line 14, where Justice Callaway said:

It might well be thought that, as paragraph (e) adds nothing to paragraphs (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.

Again, really, they are saying there, with respect, and we say correctly, you have to identify those people who caused the death or contributed to the cause of death and if that is going to cause a problem because the Coroners Act now is not one of finding blame but one of finding the facts, then maybe consideration should be given to its repeal.

Now, more interestingly, perhaps, is that it is quite clear from the record of investigation which commences at the application book, page 1, and I am not going to take the Court to it.  The relevant paragraphs are referred to in our submission:  paragraphs 7, 17 and 28, for example, of the record of investigation.  It is quite clear that the Coroner found that the first respondent caused the death of the deceased.  Our learned friend, in his submission, himself says at the application book, page 77, paragraph 9, that the appropriate part of the Act for:

the identification of “any person” who contributed to the cause of death in a proximal sense” –

that must mean in a direct sense such as the way in which death occurred here –

is encompassed in s 19(1)(b) (“how death occurred”).

Your Honours have had your attention drawn to paragraph 153 of the Sir John Norris Report which commences at page 62.  May I just repeat the final lines that appear on page 62 and to the top of page 63 where Sir John Norris quotes from the Brodrick Committee:

there is a difference between a form of proceedings which affords to others the opportunity to judge an issue and one which appears to judge the issue itself.

Now, when one has regard to the second reading speech, which has been provided to your Honours, and, in particular at page 370 of the second reading speech, your Honours will see that at the bottom of page 370, in the second-last paragraph, the Attorney-General said:

In accordance with the recommendations of Sir John Norris, the powers and duties of coroners are specified in the Bill.  The common law rules affecting coroners are abolished, and coroners will have no functions, powers or duties other than those contained in the Bill.

In addition, the Government has removed an inconsistency in the function of a coroner, which was the power to commit for trial.  The coroner’s primary duty has become the findings of the cause of death.  In performing this function, the coroner has a role that is in essence inquisitorial, in that the coroner must discover all he or she

can about the circumstances surrounding the death.  It is inappropriate that the coroner should then be empowered to commit for trial –

in other words, the Coroner is a fact-finding exercise and that is the effect of limitation of his primary duty.  So far as paragraph 154 is concerned, the Coroner was given powers under section 19(2) of the Coroners Act to make:

comment on any matter connected with the death including public health or safety or the administration of justice.

And that really does cover, in our submission, paragraph 154 of the Sir John Norris report.

Your Honours, so far as ground 2 is concerned, it is our submission that what the Court of Appeal had to say at the bottom of page 65, lines 20, through to page 66, line 2, that effectively what it is is a review of a fact‑finding or a jury verdict, is absolutely correct both with the words and what was the intention and the reasoning behind the addition of that paragraph and the reasons for the addition of that paragraph are to be found in my learned friend’s submissions at application book, page 79, where he quotes at the bottom of the page paragraph 164, which sets out exactly that reason, that:

There is at least one case on the files of the Attorney-General’s Office in which a finding at an inquest attributing the blame for a fatal collision to a deceased driver appears on the depositions taken to be completely contrary to the weight of the evidence, though it could not be said there was no evidence on which the coroner could base his finding.

And on the Act, as it then stood, the Attorney-General took the view that he could not review or seek to have that decision reviewed.

Finally, your Honours, turning to ground 3, it is our submission that the word “finding” as used in section 19, as used in section 36 with respect to fires, as used in section 55 with respect to a coroner’s jury, must have the same meaning as the word has in section 59 and cannot have any extended meaning.  If the Court pleases.

GLEESON CJ:   Thank you.  Yes, Mr Hore-Lacy.

MR HORE-LACY:   Just two short matters, your Honour.  First of all, the provision relating to a jury entitle the jury to make, in section 55(1) – I will read the subsection:

A coroner holding an inquest with a jury must put to the jury questions about the matters which a coroner must find under section 19(1) or section 36(1).

In other words, he can put any matter that he or she chooses. 

The other point is this:  the second reading speech has been mentioned, and I will just go on to read the next paragraph to the paragraph that was read:

The traditional legal protections available to an accused in committal proceedings are simply not available in the coronial jurisdiction.  For these reasons coroners will no longer commit for trial.  This approach accords not only with the Norris recommendations, but also those of the Broderick committee in England.

There is no such observation concerning legal responsibility and at inquests people are entitled as of right, who may be compromised in any way, as to legal representation.  If I am wrong on that, certainly, with leave, evidence can be called by a person, submissions can be made.  When I say “evidence can be called”, a person can give evidence and witnesses can be called.  So, there is an entitlement in the civil sphere especially for there to be no unfairness in the Coroner’s function.  Thank you.

GLEESON CJ:   The Court is of the view that there is insufficient reason to doubt the correctness of the decision of the Court of Appeal to warrant the grant of special leave in this matter, and the application is refused.

MR ZICHY-WOINARSKI:   We would seek costs, your Honours.

GLEESON CJ:   Do you resist that, Mr Hore-Lacy?

MR HORE-LACY:   No, your Honour.

GLEESON CJ:   The applicant must pay the respondents’ costs of the application.

AT 10.33 AM THE MATTER WAS CONCLUDED