Khan v Keown - [2001] VSCA 137

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 7038 of 1996

PHILIP KHAN
	Appellant
v.
GERARD KEOWN and HIS WORSHIP IAN WEST	Respondents

---

JUDGES:	ORMISTON, PHILLIPS and BATT, JJ.A.
WHERE HELD:	MELBOURNE
DATES OF HEARING:	8 and 9 August 2001
DATE OF JUDGMENT:	6 September 2001
MEDIUM NEUTRAL CITATION:	[2001] VSCA 137

---

CORONERS – Inquest – Review by Supreme Court – Conclusion that killing was in self-defence – Whether a finding as to how death occurred – Coroners Act 1985, s.19(1)(b).

---

APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr D. Hore-Lacy, Q.C. and Mr I. Freckleton	Vic. Aboriginal Legal Service
For the Respondent Keown	Mr B.W. Woinarski, Q.C. and Mr A. Hargreaves	Kenna Croxford & Co.
For the Respondent West	Mr J.H. Kennan, Q.C. and Mr A.P. Young	Coadys

ORMISTON, J.A.:

I have had the benefit of reading the judgments of both Phillips, J.A. and Batt, J.A. in draft form and I agree with the disposition of this appeal which they propose for the reasons they have stated. Moreover I agree that it is not appropriate in the Coroner’s Court to reach conclusions as to the legal consequences of the facts found there. Nevertheless, having regard to the issue raised and the matters set out in the opening paragraphs of the judgment of Phillips, J.A., I would draw attention to a statement espoused by two of the greatest exponents of the common law, Holmes, J. and Dixon, C.J., namely:

“Detached reflection cannot be demanded in the presence of an uplifted knife.”[1]

I doubt that either judge intended the passage as a statement of legal principle but I would, without reservation, believe that it expresses timeless wisdom and plain common sense.

PHILLIPS, J.A.:

[1]Brown v. United States of America (1920) 256 U.S. 341 at 343; 65 Law Ed. 961 at 963 per Holmes, J., as cited by Dixon, C.J. in R. v. Howe (1958) 100 C.L.R. 448 at 463. Though the present case involves a hatchet rather than a knife, the precept is the more applicable inasmuch as a hatchet, if released, can acquire a momentum of its own.

On 23 September 1994, at certain premises in Fitzroy Street St. Kilda, Constable Gerard Keown shot and killed Colleen Richman. An inquest into the death was conducted by the Deputy Coroner in October-November 1995. On 23 January 1996 the Deputy Coroner (to whom I shall refer for convenience simply as "the coroner") published the Record of Investigation, setting out the matter in great detail. That Record of Investigation contained two paragraphs which have gained great significance in the proceedings that have followed.

The first, paragraph 28, read thus:-

"The evidence satisfies me that the circumstances existing immediately before the deceased was fatally shot by Constable Keown, necessitated him shooting her in self defence. This conclusion is based on the distance separating them, the manner in which she was moving

toward him, with the minimal time it would take to cover the distance and the fact that she was approaching…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Khan v Keown

Details

AGLC: Khan v Keown [2001] VSCA 137
Case: [2001] VSCA 137
Decision Date: 6 September 2001

CaseChat Overview and Summary

In Khan v Keown, the Supreme Court of Victoria was tasked with reviewing a decision made by a coroner regarding the death of Mr Khan. The dispute centred on whether the coroner had correctly determined that Mr Keown, who had shot and killed Mr Khan, acted in self-defence. The case hinged on whether the coroner was required to make a finding about how the death occurred under section 19(1)(b) of the Coroners Act 1985.

The legal issues before the court involved interpreting the Coroners Act 1985 and understanding the scope of a coroner's findings. Specifically, the court needed to determine whether the coroner was obliged to make a finding as to how Mr Khan died or if the finding of self-defence was sufficient under the Act. This involved examining the statutory language and the context in which the coroner's powers were exercised.

The court found that the coroner was not required to make a finding as to how Mr Khan died, as the determination of self-defence addressed the circumstances surrounding the death adequately. The court emphasised that the coroner's role is not to establish the precise cause of death but to ascertain the circumstances leading to death, including whether it was a result of self-defence. This interpretation aligned with the statutory objectives and the nature of the coroner's inquiry. The court concluded that the coroner's decision was within their statutory powers, and the review was dismissed.

The final orders of the court were to uphold the coroner's decision and dismiss the review application by the parties involved. The court's decision clarified the scope of a coroner's findings and provided guidance on the application of the Coroners Act 1985 in similar future cases.

Orders