Khan v West
[2002] VSC 227
•13 June 2002
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. 7038 of 1996
| PHILLIP KHAN | Appellant |
| v. | |
| HIS WORSHIP IAIN WEST (In his capacity as Deputy State Coroner) | First Respondent |
| And | |
| GERARD KEOWN | Second Respondent |
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JUDGE: | OSBORN J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 23 AND 24 MAY 2002 | |
DATE OF JUDGMENT: | 13 JUNE 2002 | |
CASE MAY BE CITED AS: | KHAN v HIS WORSHIP IAIN WEST AND ANOR | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 227 | |
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CORONERS – Review of Coroner's findings – Whether findings against the evidence and against the weight of evidence – Proper test to be applied – Cause of death – Identity of person who contributed to cause of death – Failure of person causing death to give oral evidence – Coroners Act 1985, ss. 19, 59.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Dr. I. Freckleton | Victorian Aboriginal Legal Service Co-operative Ltd |
| For the Respondents | Mr. W.B. Woinarski QC and Mr. A. Hargreaves | Kenna Croxford & Co |
HIS HONOUR:
Introductory
This is the hearing of an appeal pursuant to s.59 of the Coroners Act 1985 ("the Act") with respect to the findings of an inquest into the death of Colleen Richman at St. Kilda on 23 September 1994. The applicant in the originating motion before me is the brother of the deceased.
The deceased died as a result of bullet wounds resulting from shots fired by a police officer who had been called to the scene as a result of the deceased's prior actions.
The critical issue in the appeal before me is whether it was open to the Deputy State Coroner to find in substance that the police officer killed the deceased in self-defence necessitated by the deceased's actions. That issue is raised by ground 1 of the originating motion which states:
"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 the evidence."
The appeal has had a long and difficult procedural history, which is detailed in the decision of Callaway JA in Keown v Khan and Another[1], and further by Batt JA in the subsequent Court of Appeal decision of Khan v Keown[2]. In summary the matter was first heard before Hampel J, whose decision was overturned by the Court of Appeal in Keown v Khan. Leave to appeal was refused by the High Court with respect to this decision. The matter was reheard by Warren J whose decision was in part upheld by the Court of Appeal in Khan v Keown but whose orders were set aside. It now comes before me for rehearing.
[1](1999) 1 VR 69
[2][2001] VSCA 137 (6 September 2001)
As a result of the sequence of hearings and appeals which has occurred, it is common ground before me that the appeal should be allowed to the extent that the original findings of the Coroner as to contribution should be set aside and a declaration made that "insofar as such findings do not identify Gerard Keown as a person who contributed to the cause of death of the deceased they are void."
The issue with respect to contribution arises pursuant to s.19(1)(e) of the Act which provided at the date of the inquest that a coroner investigating a death must find if possible:
"(e) the identity of any person who contributed to the cause of death."
This sub-section has since been repealed but by virtue of s.18 of the Coroner's (Amendment) Act 1999 the repeal only applies to investigations into deaths commenced after 1 July 1999.
The outstanding issue raised by ground 1 of the originating motion arises pursuant to s.19(1)(b) of the Act which provides a coroner investigating a death must find if possible:
"(b) how death occurred."
The applicant invites me to declare that the findings of the inquest as to how death occurred are void pursuant to s.59(2) of the Act on the basis set out in s.59(3)(d) of the Act namely:
"(d)the findings are against the evidence and the weight of the evidence."
In Keown v Khan Callaway JA encapsulated the manner in which this issue arises as follows:
"The same analysis does not apply to s.19(1)(b), at all events if the relevant conclusion is expressed not in terms of contribution but in terms of self-defence. A finding that the appellant killed Ms Richman in self-defence is a finding as to how her death occurred. I say 'a finding', because it will often be necessary for a Coroner to make more than one finding in order to discharge his or her obligations under para.(b). In the present case, for example, the second respondent found that Ms Richman consciously ignored the appellant's lawful directions and intentionally threatened him with a hatchet. That, too, was a finding as to how death occurred. That finding or the finding that the appellant acted in self-defence or both findings could, in my opinion be challenged under s.59.
It will be noticed that I have consistently referred to 'self-defence' rather than 'lawful self-defence' or 'justified' or 'excusable' homicide. A Coroner is not concerned with questions of law of that kind. Instead the Coroner is to find the facts from which others may, if necessary, draw legal conclusions. As para.153 of the Norris Report said:
'It is necessary to emphasise that if the Coroner is no longer required to determine whether the cause of death was unlawful, and if so, who was guilty of the crime, the original purpose of the verdict, to indicate legal responsibility for the death, substantially disappears. If the Coroner or jury is not to include any statement of legal responsibility or to express any conclusion of law on the matters he or the jury is required to determine as recommended in paragraph 125 above, this consequence is reinforced. The result is, as stated by the Broderick Committee (para.16.40): - 'In future the function of an inquest should be simply to seek out and record as many of the facts concerning the death as public interest requires, without deducing from those facts any determination of blame.' The findings of the Coroner or jury should in terms be findings of fact only. To quote the Broderick Committee:- 'In many cases, perhaps the majority, the facts themselves will demonstrate quite clearly whether anyone bears any responsibility for the death; 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'…[3]
[3]p.75
In Khan v Keown the Court of Appeal emphasises this passage in the judgment of Callaway JA and the necessity to resolve the issues raised by paragraph 1 of the originating motion (see Phillips JA at paragraph 12 and Batt JA at paragraphs 25-27). At paragraph 13 Phillips JA said:
"As I followed it, the appellant's argument, as put to us by Mr. Hore-Lacy, came down to the following steps: (1) the appellant was entitled to have considered by the judge under s.59 a finding of the coroner of how death occurred; (2) the coroner found that the deceased was shot by the constable acting in self-defence; (3) a finding in such terms was a finding of how death occurred; and (4) the judge wrongly failed to consider whether that finding was 'against the evidence or the weight of the evidence' as described in s.59.
In my respectful opinion, all four steps are justified by the judgment delivered by this Court on 1 May 1998, on the first appeal. Thus, a finding how death occurred is expressly required by s.19(1)(b) and so s.59 extends to such a finding. Secondly, that the deceased was shot by Constable Keown is not in dispute and the coroner was plainly entitled to make that finding. It was submitted for Constable Keown that it was inappropriate for the coroner to have added the words 'acting in self-defence' as that went beyond the ambit of what was authorised and required by s.19(1). Yet it is not in doubt that the coroner came to the conclusion that the deceased was shot by the constable while acting in self-defence and, as already mentioned, Callaway, J.A. was plainly of opinion that such a finding was within s.19(1)(b) and accordingly could be challenged under s.59.
If, as I think, the first three steps in the argument are correct, it follows that the fourth step, too, must be correct. Given the first three, it was error below for the judge not to consider whether the finding, that in shooting at Ms Richman the constable was acting in self defence, was 'against the evidence or the weight of the evidence'. That has been interpreted as meaning whether the finding in question was open on the evidence. Be that as it may, it is plain that the judge did not consider whether the finding about self-defence could be justified on the evidence and it is that about which the appellant now complains, and in my opinion complains with justification."
The Findings of Fact
The critical findings of fact which the appellant sought to impugn before me are those contained in paragraphs 28 and 51(a) of the Coroner's Record of Investigation:
"28.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 him with the hatchet upraised. Her actions at this time must be viewed in the context of her immediate past behaviour, which was observed by many witnesses and generally described as irrational, threatening and dangerous. Constable Keown was in part alerted to this behaviour through what he had been told and from his own observations. 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.
…
51.(a) Colleen Richman contributed to her cause of death by consciously ignoring the lawful directions of Constable Keown and intentionally threatening him with the hatchet she had in her possession. The evidence does not satisfy me that her actions were undertaken with the intention of committing suicide."
The Court of Appeal has given guidance as to the manner in which these findings are to be understood. In Khan v Keown Batt JA said at paragraph 29:
"I mention one other point since no little argument was directed to it. It was a thesis of the decision in Keown v. Khan that under the Act coroners are not concerned with questions of law but with findings of fact. Thus Ormiston, J.A. said that findings of coroners ought to eschew use of language which connotes legal conclusions as opposed to factual findings, and Callaway, J.A. observed that he had consistently referred to 'self-defence' rather than 'lawful self-defence' or 'justified' or 'excusable' homicide and that a coroner was not concerned with questions of law of that kind. It was suggested in argument that the Deputy Coroner might have transgressed these precepts in his conclusions about self-defence in paragraphs 28 and 51 of the record of investigation. In so far as the suggestion relies upon the expression 'lawful directions' in paragraph 51 it is disposed of by the observation about that expression made in the earlier case which I have already mentioned. In so far as it relies on the words 'necessitated' and 'justified' in paragraph 28, those words were, in my view, used in a factual sense, referring to practical necessity and justification, and not as legal concepts. No question arises, therefore, of 'irregularity of proceedings' within s.59(3)(a) in relation to the finding concerning self-defence."
Likewise at paragraph 15 Phillips JA said:
"There may be a question whether the coroner trespassed beyond the area permitted him by s.19 when, in paragraph 28 of the record of investigation, he found that circumstances 'necessitated' the constable's shooting in self defence and that he was 'justified' in firing at her; for, as Callaway, J.A. pointed out, the legal issue is for others to resolve, not the coroner. But in this respect I agree with Batt, J.A. that the coroner was in truth doing no more than finding the facts and it is his finding in that regard which may be reviewed by the court under s.59. I simply add that if, contrary to my view, the coroner's finding did incorporate impermissibly conclusions of law, then that purported finding might none the less still be reviewable under s.59, being the finding that was actually made as to how death occurred, flawed though it was."
Ormiston JA stated at paragraph 1:
"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.'
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."
The sense in which the findings in paragraph 28 are to be understood is clarified by the statement at paragraph 37 of the Record of Investigation:
"The evidence satisfies me, 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 then was reasonably necessary."
The sensitivity of findings of the type in issue was noted by Brennan J in Annetts v. McCann[4].
"It is difficult to envisage a case in which a coroner’s exercise of the mere power to hold an inquest is likely to affect adversely the interests of any person, but a coroner’s finding as to 'how, when and where the deceased came by his death' is plainly apt to affect adversely the interests of any person upon whom the finding would reflect unfavourably, even if that person is not committed for trial and the finding is not framed in such a way as to appear to determine any question of civil liability or guilt of an offence. The nature of the power to make findings that are unfavourable (whether such findings are incorporated into the written inquisition or into a rider) is such as to import the requirement to accord natural justice as a condition governing the exercise of that power. Prima facie, before a finding is made, it is incumbent on a coroner to accord natural justice to any person upon whose conduct the coroner’s finding may reflect unfavourably."
[4](1990) 170 CLR596
The Test to be Applied
In Keown v Khan Callaway JA set out the background to the relevant provisions of the Act. A critical matter in terms of the task I must undertake is the proper nature of an inquiry as to whether the findings of the Coroner are against the evidence and the weight of the evidence. At paragraph 9 Callaway JA stated:
"The present Coroners Act was enacted following a general review of the Coroners Act 1958 conducted by the Honourable Sir John Norris, Q.C. ('the Norris Report'). The Report's principal recommendation was that a coroner should no longer have power to commit a person for trial or to make any finding of legal responsibility. I use the expression 'legal responsibility' advisedly: it was intended that there should be no determination of criminal or civil liability and that even the references to negligence in s.414 of the Mines Act 1958 and s.50 of the Coal Mines Act 1958 should be deleted. Sir John's recommendation as to civil liability generally was not adopted, for ss.19(3), 36(3) and 55(6) prohibit only a statement that a person is or may be guilty of an offence; but the Mines Act and the Coal Mines Act were amended to delete the references to negligence, so that the substance of his recommendations was adopted, namely that an investigation, with or without an inquest, should be a purely factual inquiry. That may explain why error of law, as such, is not mentioned in s.59(3)."[5]
[5]p.72
Insofar as s.59(3)(d) is concerned Callaway JA further stated at paragraph 17:
"2. Section 59(3)(d) was included, on Sir John Norris's recommendation, because there was at least one case on the files of the Attorney-General's office in which a finding appeared to be 'completely contrary to the weight of the evidence, though it could not be said that there was no evidence on which the coroner could base his finding'. 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, i.e. 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, Gobbo, J. contrasted it by reference to Young v. Paddle Bros. Pty. Ltd."[6]
[6]p.77
In Khan v Keown Batt JA said at paragraph 28:
"I point out that, for the finding relating to self-defence to be declared void as being against the evidence and the weight of the evidence, the appellant must satisfy the judge that it was perverse in the sense that it was a finding for which there was no evidence or that no reasonable coroner could make: Keown v. Khan per Callaway, J.A., citing Young v. Paddle Bros. Pty. Ltd, a passage approved by the Full Court in Taylor v. Armour & Co. Pty. Ltd."[7]
[7]para.28
Phillips JA said at paragraph 16:
"I stress however that, whether it is the ultimate conclusion under consideration or any of the other findings which lead towards that conclusion, the test is whether the fact in issue was open to be so found on the evidence before the coroner. Review under s.59 is limited: it is not an appeal by way of re-hearing."[8]
[8]para.16
It may be observed that the intent of s.59(3)(d) as clarified by the Court of Appeal is not the wide view which was generally understood to prevail at the time the applicant instituted this appeal, and the grounds of the originating motion were formulated.
When the correct test is applied to ground 1 of the originating motion (which was the only ground pursued before me) the proceedings give rise to a relatively discreet question, namely: was it open to the Coroner to find on the evidence as he did that the circumstances existing immediately before the deceased was fatally shot by Constable Keown necessitated the shooting of the deceased in self-defence or was such finding perverse and/or one which no reasonable coroner could make?
The Background Facts
Dr. Freckleton who appeared for the applicant informed me at the outset of the hearing that there was no substantial dispute as to what he called the "subsidiary facts" in this matter. By this I understand him to mean the facts up until immediately prior to the shooting of the deceased.
The basic factual matrix forming the background to the Coroner's findings is set out in the introductory section to his report. I shall not quote it in full but the essential circumstances forming the context for his deliberations are set out in the first 11 paragraphs.
"1.On the morning of the 23rd September 1994, the deceased aged 42 years, attended Suite 5, 22-28 Fitzroy Street St Kilda, being premises occupied by the Hanover Welfare Services Centre and located on the north west corner of Fitzroy Street and Park Lane. Suite 5 is part of a two storey office block with central yard, access to which is via three walkway alcoves, one off Fitzroy Street, one off Park Lane and the other from the carpark at the rear of the complex. Within the alcove off Park Lane there is a stairwell providing access to offices on the first floor. Access to this stairwell, some of the offices and the central courtyard when entering from Park Lane is via a paved pathway between two small gardens to an open gate. The gate and its surround are constructed from steel bars, with the distance between the edge of the garden bed and the gate, being two metres. The alcove measures 6 metres from its entrance at the metal grille gate, to the eastern perimeter wall of the central courtyard. The Hanover Centre provides accommodation and support to women who find it difficult to deal with day to day social issues, with such assistance being given by social workers employed by the centre. The deceased was well known to staff at Hanover, she being a client of the centre and tenant, since early 1994, of a rooming house operated by them in Burnett Street St Kilda.
When the deceased attended the Hanover premises at approximately 10.30 am on the 23rd, four female staff members were present, one of whom was her support worker, Miss Joanne Lazzaro. The deceased attended in an intoxicated state and carrying a hatchet, which she had purchased from a local hardware shop on the 21st September. Since purchasing the hatchet she had been observed by a number of people to have it in her possession in different public places and while attending the Hanover Centre on the afternoon of 22nd of September.
2.At the time the deceased entered the Hanover Centre, Miss Lazzaro was on the phone to the deceased's treating psychiatrist, Dr Jane McKendrick, who had rung to enquire about the deceased having failed to attend her 10 o'clock appointment at the psychiatric outpatients clinic of St Vincent's Hospital. The deceased upon entering, stated that she needed to see her psychiatrist and as Dr McKendrick was still on the line, Miss Lazzaro gave her the phone, after unsuccessfully requesting that she hand over the hatchet. After a short conversation during which she agreed to go and see Dr McKendrick and discussion about her possession of the hatchet, the deceased threw the receiver down when told by Miss Lazzaro that if she wasn't prepared to hand over the hatchet, she would have to leave. Upon throwing the receiver down the deceased left the office, after which Miss Lazzaro locked the door. It was then agreed between Miss Lazzaro and Dr McKendrick that the police should be called and that this be done by Miss Lazzaro, while Dr McKendrick was to contact the Victorian Aboriginal Health Service.
3.Shortly before 11.00 am Miss Lazzaro telephoned the St Kilda Police Station and spoke to Constable David Cox who was performing reception duties that morning. As a result of this conversation, Constable Cox initiated a police response to the address via D24, resulting in patrol unit, St Kilda 207 being despatched at 10.56 am. Constables Gerard Keown and Sally Robertson, the officers manning St Kilda 207 were told by the D24 radio operator, that a female was 'going berserk' with a tomahawk at the women's refuge located at suite 5/22 Fitzroy Street, St Kilda.
The deceased's bizarre behaviour, which included making strange noises, was such that it caused concern to all who saw or heard her and resulted in a number of people calling the police. The following additional information was conveyed to St Kilda 207 by D24: '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.'
4.Upon arrival at the scene the police vehicle was parked in the rear carpark of the office complex, with the police entering the central courtyard via the walkway alcove in the northern wall. Police officers were armed with service issue revolvers, neither carried their long batons and Constable Robertson carried a hand held police portable radio. Many witnesses observed the arrival of the police, some of whom due to the deceased's bizarre behaviour, were afraid for her well-being, their own well-being and one expressed fear for the safety of the police. Although there was only one expressing such fear, she was in the best position to judge the degree of danger confronting police.
5.After entering the courtyard, witnesses gave directions to the police as to the location of the deceased, who was in the vicinity of the office door of the Hanover Centre, adjacent to a walkway alcove at the eastern side of the complex. The deceased who carried the hatchet in her right hand was facing the office door when first observed by Constable Keown, this door consisting of a wooden frame which divided its upper and lower glass panels. With his service revolver drawn and pointed at the deceased and while positioned within the walkway alcove, Constable Keown repeatedly called on her to put the hatchet down, while gesturing to her with his left hand held out in front of him and with the palm open towards her. The deceased did not drop the hatchet and began striking the office door with the back or blunt end of the hatchet's metal head, while asking that the door be opened to let her in.
6.Constable Robertson, who was to the rear of Constable Keown and with her service revolver drawn, was requested by him to call for assistance, which she did by telling the D24 operator, 'We need backup urgently'. During this request, the operator could hear loud screaming noises in the background, with him responding 'that backup was about 5 seconds away'. The deceased responded to Constable Keown's persistent demands by screaming and yelling and swearing at him. It appears that an attempt may have been made at some point during the confrontation to diffuse the standoff situation, by Constable Keown placing his revolver on the ground and that Constable Robertson may have similarly so acted. Constable Keown in his statement to investigating police described several occasions when the deceased took a quick step towards him, raising the hatchet before swinging it down as if she were going to throw it. These actions caused him to fear for his safety and resulted in him retreating and ducking down before further requesting her to drop the hatchet. In an attempt to resolve what Constable Keown described as a 'life threatening situation', he fired a single shot into the garden bed located behind the deceased and adjacent to the western footpath of Park Lane. Regrettably this action did not resolve the situation as the deceased continued to menace Constable Keown with the hatchet and ignore further requests to put it down. Constable Keown stated that the deceased yelled at him to 'Shoot me. Shoot me', before again taking a step forward and swinging the hatchet as she had done previously, causing him to retreat a bit further and again request her to put it down.
7.The following extract from Constable Keown's statement to investigating police, is his description of the final movements of the deceased, culminating in him firing his weapon at her:
'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 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. I fired these rounds as quickly as I could. I did not aim, they were just instinctive. 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.'
8.Constable Robertson had been positioned behind Constable Keown and to his right, as the width of the walkway alcove was not wide enough to enable them to stand abreast. While in this position and when looking east, she had a clear view of the deceased and her threatening movements however, she told investigating police that she did not see the movements of either party immediately before hearing a quick succession of gun shots, as she had turned facing into the southern perimeter courtyard wall, in order to transmit a radio message enquiring about back up.
9.Immediately following the shooting, ambulance assistance was urgently requested by Constable Robertson, resulting in the arrival of a MICA unit at 11.12 am. A physical examination of the deceased was conducted by the paramedics, which revealed that the deceased was not breathing, there was no pulse or heart sounds, her pupils were fully dilated and unresponsive to light and there was no electrical activity within the heart.
10.On the afternoon of the 23rd September, Forensic Pathologist Dr Shelley Robertson conducted an autopsy on the deceased and concluded that the cause of death was multiple gunshot injuries to the chest. Examination revealed the following separate gunshot injuries:
a)Gunshot injury entering through the left breast with the projectile track being from left to right, front to back with a downward angulation of approximately 45 degrees. This bullet lodged beneath the skin of the right mid back.
b)Gunshot injury entering through the posterior aspect of the right shoulder, with the projectile track not clearly determined due to fragmentation of the bullet, but with the core lodging beneath the skin at the front of the neck.
c)Gunshot injury entering through the right upper back with the projectile track being from right to left, back to slightly forward at approximately 20 degrees and in a plane parallel to the ground, with approximately 10 degrees downward angle. This bullet exited through the left upper chest.
d)Gunshot injury entering through the left mid back with the projectile track being from back to front with almost no left to right angulation and in a plane approximately parallel to the ground. This bullet existed through the left axilla.
It was said that it was not forensically possible to state the order in which these injuries were sustained, however it was the pathologist's opinion that each was capable of causing death either alone or in combination. These four injuries were described as 'distant gunshot injuries' indicating, in the pathological sense, that there was no muzzle to skin contact or near contact at the time of discharge.
Two further injuries were noted and described as superficial abrasions on the right upper chest wall and were said to be suggestive of a grazing impact, either directly with a projectile or indirectly by the projectile making contact with an item such as jewellery.
11.Subsequent toxicological analysis of body tissue showed a blood alcohol level of 0.3% together with levels of Fluoxetine, an antidepressant and traces of Diazepam and Oxazepam, both sedative/hypnotic drugs of the benzodiazepine class. None of these drugs were outside the range expected for normal therapeutic use and it could not be stated as to what degree the combination of drugs would depress the deceased's central nervous system."
After considering the expert evidence before him, the Coroner further concluded:
"17.After considering the evidence of the pathologist and the forensic evidence, relating to the deceased's clothing, location of fired bullets and cartridge cases and the general scene examination, I am satisfied that the six shots fired by Constable Keown occurred in the following order:
a)the first was a warning shot, fired in the direction of a garden bed behind the deceased, with the bullet ricocheting off the road surface of Park Lane and entering the rear off-side panel of a south bound Ford sedan;
b)The second passed through the left and right collars of the deceased's duffle coat and while doing so struck the metal brooch worn by the deceased, causing minor bruising in the chest area. This round continued and struck the handle of the hatchet held aloft by the deceased, before lodging beneath its metal head;
c)The third struck the deceased with an entry wound to the left breast area and was recovered at autopsy in the region below the right rib cage;
d)The fourth struck the deceased's back with an entry wound to the right upper shoulder area and was recovered at autopsy in the region of the front of the neck;
e)The fifth struck the deceased's back with an entry wound to the right lower shoulder area, passing through the body and exiting the left breast area, then striking the western wall of the building on the eastern side of Park Lane. The bullet was recovered from Park Lane;
f)The sixth struck the deceased's back with an entry wound to the left shoulder area, passing through the body and exiting in the left breast area adjacent to the left arm, then striking the western wall of the building on the eastern side of Park Lane. The bullet was recovered from Park Lane.
All six rounds had been fired from the alcove area and on a true compass bearing of a north easterly direction, although for the purposes of this finding I am treating Park Lane as running north, south and hence the shots are said to have been fired in an easterly direction."
He also noted:
"18.Enquiries into the deceased's background revealed a history of psychiatric problems and alcohol abuse, that had resulted in both voluntary and involuntary admission to various institutions over a fourteen year period, the last being in August 1994. She had previously expressed suicidal and homicidal thoughts and had attempted to take her life on numerous occasions by lacerating her wrists, hanging and overdosing on prescribed medication. Many of these actions, together with admissions to psychiatric services, were related to or precipitated by abuse of alcohol. The deceased had sought help from a variety of service agencies which, as a result of her Aboriginality, included the Victorian Aboriginal Health Service, the Koori In-patient Unit at Larundel, the Koori Mental Health Outpatient Unit at St Vincent's Hospital and Hanover Women's Centre, with whom she had regular contact, primarily through her support worker Joanne Lazzaro."
The Coroner went on to analyse four broad categories of issues:
(a) The events prior to the shooting;
(b) The discharge of the firearm;
(c)The adequacy of the training received by the two officers and their handling of the incident; and
(d) The subsequent investigation into the death.
The analysis of the events prior to the shooting led to the conclusion which appears at paragraph 21:
"21.… I am satisfied that in these circumstances, the actions of the police in confronting the deceased and persistently requesting that she put down the hatchet, were appropriate and that their actions in failing to wait for the backup that had been requested, should not be the basis for criticism."
The focus of the argument before me was directed to the findings of the Coroner with respect to the discharge of the firearm and shooting of the deceased. Although the ultimate findings in respect to these matters can be said to be summarised in paragraph 28 (which I have already quoted) the reasons are discursive and most relevantly continue through to paragraph 37. They provide as follows:
"29.In his statement to Detective Sergeant Ryan, Constable Keown said that the deceased's actions immediately prior to him firing the warning shot, created 'a life threatening situation' and immediately prior to firing the five shots at her, a belief that 'she's going to kill me'. I am mindful of the fact that Constable Keown's statement has not been tested by cross-examination, as he successfully claimed his right against self incrimination, however justification for the forming of his belief, is in part supported by the evidence of one of the office workers, Miss Alette Rennie. Shortly prior to the warning shot being fired, Miss Rennie was positioned on the balcony at the western end of the stairwell, where she was in a position to look down the stairwell and observe the deceased and Constable Keown. From her position she could see the deceased who was facing west and the top half from about waist high of Constable Keown's body, who was facing east. She estimated a distance of one and a half metres separated the two, but conceded she was 'not terribly good at judging distances'. Both were within the covered alcove area. Immediately before moving from her observation point and hearing a gun shot, Miss Rennie observed the deceased begin to move forward one and a bit steps fairly quickly and in a very aggressive manner with the hatchet raised. The reason Miss Rennie gave for moving away was that she believed the deceased was going to attack the officer with the hatchet, which she didn't want to see, she concluding that he and others were very lucky they had not been injured by her.
30.The relative position of Constable Keown, Constable Robertson and the deceased, together with their respective actions immediately prior to the five shots being fired at the deceased, appropriately occupied a great deal of the inquest hearing time. Regrettably, however, few findings of fact can be gleaned from this material. While the evidence satisfies me that there were witnesses who observed the deceased immediately prior to the five shots being fired and immediately thereafter, no witness apart from Constable Keown was in a position to say with precision what her or his position was, or movements were when she was shot. Only in part, are his observations at this time, corroborated by independent evidence.
31.There is no evidence that corroborates Constable Keown's statement of unfolding the deceased's legs from under her, after she had been shot and had fallen. Nevertheless I am satisfied that the deceased at the time she was shot, was standing approximately where she was subsequently photographed, this being in the entrance to the alcove. No forensic evidence puts her in a more westerly position than this point. On the basis of the spent cartridges being found in the vicinity of the base of the stairs, I am satisfied Constable Keown was positioned in close proximity to the first step when he reloaded. Although there is no forensic support for Constable Keown's statement that he backed out of the alcove prior to reloading, there is none that is inconsistent with it. The distance between the edge of the first step and the grilled gateway entrance to the alcove, is approximately five metres.
32.Although there is no independent corroboration of Constable Keown's position being further east than the first step at the time of firing and of his subsequent retreat before reloading, I am satisfied that even if the distance separating the two was as great as five metres, potentially, he had minimal time to defend himself from attack. Police training includes the instruction that a person armed with a knife can deliver a fatal thrust in an average of one and a half seconds, when approximately six metres from the victim and that when the weapon is longer than a knife, the elapse time and distance is reduced. I accept that Constable Keown believed his partner was to the rear of him, although while keeping the deceased under observation, he would not have known her exact position. In these circumstances he was entitled to believe he could not retreat quickly backwards in an attempt to avoid attack, as to do so may have meant stumbling over his partner. The deceased's degree of intoxication may have meant that the one and a half seconds average did not apply to her, nevertheless Constable Keown was entitled to assume a worst case scenario. No witness who had observed her actions that day, stated that her intoxication impeded her ability to move quickly. I am also satisfied that no realistic opportunity presented itself, for Constable Keown to attempt to disarm the deceased.
33.A major difficulty in this inquest, is determining what actions were performed by the deceased immediately before she was shot, this being necessary in order to determine whether it was reasonably open to Constable Keown to conclude that his life was under immediate threat at the time of shooting. Constable Keown's statement details his version of the events, however as he did not give evidence and his statement was not tested, it is necessary to consider what weight should be given to it. Counsel on behalf of the family members submitted that where there is no independent corroboration, no weight should be given to the contents. While there is forensic evidence of a bullet passing through the deceased's upper clothing before lodging in the hatchet handle, which satisfies me that it was raised at the time of shooting, no evidence corroborates Constable Keown's version of the speed at which he was being approached. However, as Constable Keown's statement is substantially corroborated by many witnesses to the surrounding events and is consistent with the forensic evidence, it deserves to be accepted as being substantially accurate and should not be ignored. Concern then arises over his description of her movement, which he describes in the following way: 'She then stepped forward again with her left foot … she also stepped off with her right foot, and started running towards me.' He later stated: 'She was running at me'. And further, 'She ran too quickly towards me …' In his conversation with Detective Senior Constable Hadley, on this issue he said, 'I kept telling her to put it down but she wouldn't. Finally she ran at me.'
34. The MacQuarie dictionary defines the verb 'to run' as:
1. to move quickly on foot, so as to go more rapidly than in walking (so that for an instant in each step, neither foot is on the ground);
2. to hurry;
3. to move easily or swiftly.
Although there was no opportunity to examine Constable Keown on his use of this word, its common usage would make it difficult to see how the deceased had either the time, space or momentum to 'run' at him. Whether he intended to use the word loosely or precisely cannot be determined, however, the only plausible inference to be drawn from his 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 hadn't fired, or when discharging the warning shot, as to create in his mind a belief that he would be killed unless he defended himself. This inference is drawn against a background of repeated requests to put the hatchet down, the calling for backup, the discharging of a warning shot and possible placing of his revolver on the ground, each of which is indicative of Constable Keown's self control and desire not to harm the deceased.
35.In his statement to Detective Sergeant Ryan, Constable Keown, after explaining that the deceased's actions were such that he thought she would kill him, went on to say:
'… I had the revolver pointed in her general direction and I fired the five remaining rounds instinctively at her body. I fired these rounds as quickly as I could. I did not aim, they were just instinctive.'
Police must only discharge their firearm when there is a reasonable belief that it is necessary to protect life or prevent serious injury. The force training philosophy is that in the event of attack in these circumstances, the officer is instructed to fire at the subject and continue to fire until the subject stops and the threat is neutralised. I am satisfied that the threat would be neutralised in the circumstances of this case at such time as it was obvious that the deceased was no longer in a position to inflict injury with her hatchet, with this occurring, either through dislodgement of the weapon from her possession or her falling to the ground. There is no evidence upon which a finding could be made, that the first bullet fired and which lodged in the hatchet handle, carried with it such force, as to dislodge the weapon from the deceased's possession.
36.Witnesses' evidence of the firing of these rounds, was that they occurred in quick succession, such that difficulty was experienced in determining the actual number discharged. Accordingly I am not satisfied that Constable Keown would have been in a position of appreciating the effect of each of these rounds, especially when facing the danger with which he was presented. One observation he said he was able to make however, and I accept its accuracy, was that a round striking her in the chest region 'seemed to spin her sideways to her left'. The evidence satisfies me that the second of the series of five shots entered the area of the deceased's left breast, with the impact turning or assisting in the further turning of the deceased to her left. I am further satisfied that the third and fourth shots in this series struck the body while it was upright, entering the posterior aspect of the right shoulder and right upper back respectively and further contributing to the turning action. The final shot was to the left mid back.
37.There is no doubt that these shots were rapidly discharged, with Constable Keown firing his rounds as quickly as he could and as witnesses were unable to accurately say how many were fired. Evidence was given of discharging six rounds from such a weapon in two to two and a half seconds, although it was not suggested that this was the weapon's fastest discharge capability. While there is merit in the general proposition of requiring accountability for each and every round fired; given the life threatening situation confronting Constable Keown, with minimal distance separating him and his assailant, the training of shooting until the threat is neutralised and the rapidity of firing, I am satisfied he could not prevent the three shots to the back, after the deceased had rotated with the first entry impact.
The evidence satisfies me, 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."
The applicant's case with respect to the Coroner's finding centred on the use the Coroner made of the statement of Constable Keown. Dr. Freckleton ultimately contended in particular that:
(a)the statement that the deceased ran towards the police officer immediately before the shooting was false and that this statement was so central to the account given by the police officer that no weight could be given to that account at all;
(b)the failure of Constable Keown to give oral evidence which could be tested before the Coroner led necessarily to the inference that little (or no) weight should be given to his statement, because it was critically concerned with matters solely within his knowledge; and
(c)I should adopt the reasoning of Hampel J with respect to the statement of Constable Keown, which reasoning Dr. Freckleton sought to adopt by way of submission.
In his written outline of submissions Dr. Freckleton stated:
"There is no credible evidence that Constable Keown or anyone else was in imminent danger. Rather, the evidence strongly suggests that an inexperienced police officer panicked, acted in an overly confrontational way, failed to retreat when that was the most prudent available course and fired, not in self-defence, but prematurely and unnecessarily."
In his final submission he stated:
"The combination of the fact the deceased was not running at the Constable, that he did not remove himself from the field of confrontation as would have been prudent, that on any view of things, as the coroner found, there were approximately five metres between him and the deceased when he fired the vital shots and that there is no evidence corroborating his flawed, unsworn account, not given in court, means that the Coroner's s.19(1)(b) finding was against the evidence and certainly against the weight of the evidence, being no more than speculation."
The Evidence as a Whole
The critical task of this Court is to consider whether it was open to the Coroner to find as he did on the evidence as a whole. Before addressing the specific submissions made by Dr. Freckleton I shall set out my view as to this fundamental question.
In my view it was open to the Coroner to make the ultimate findings of fact set out in paragraphs 28 and 51(a) of his report. I have reached this conclusion having regard to the following matters:
(a)The Coroner had before him the statement of Constable Keown which I will address further in response to specific submissions made by Dr. Freckleton, but which of itself made open findings that the deceased was shot in self-defence in circumstances of necessity;
(b)That statement was corroborated by the detailed evidence of a whole series of witnesses as to events leading up to the moment immediately before the shooting. It was further corroborated by forensic evidence as to significant matters of circumstantial detail. In this regard I note in particular the forensic evidence with respect to the damage to the hatchet, which corroborates the fact that the hatchet was raised at the time of shooting, and the evidence as to the wounds suffered by the deceased which might be said to directly corroborate the police officer's account of the sequence of the actual shooting;
(c)There was further and other evidence of persons who both knew the deceased well (within the Hanover Centre) and persons who did not know her at all, which establishes that she was behaving in a violent and aggressive manner prior to the shooting and that her behaviour was such as to terrify onlookers (see the evidence of Gallo, Gason, London, Broadway, Turulli, Rennie, McAlister, Castle, Jacks, Blanksby and Lazzaro);
(d)This evidence is in turn corroborated by the actions of a number of these witnesses who locked doors, hid, and made four separate requests for immediate police assistance leading to the instructions by D24 to Constables Keown and Robertson that a female was "going berserk" with a tomahawk at the women's refuge;
(e)This evidence was further corroborated by the extensive physical damage inflicted with the blade of the tomahawk to a bench in the courtyard of the premises and with the back of the head of the tomahawk to the door of the Hanover Centre;
(f)The continuation of aggressive behaviour is further corroborated by details such as the sound of a female screaming in the background when Constable Robertson rang for back up;
(g)The evidence as to the circumstances immediately prior to the shooting was also contextually relevant to and probative of the finding of the Coroner. The Coroner was entitled to conclude:
·the deceased did not respond to a series of requests to put down the hatchet;
·the deceased could be heard to confront the police officers;
·the deceased did not put down the hatchet or cease to confront the police following the firing of a warning shot;
·the deceased moved towards the police officers (and was within approximately five metres of Constable Keown);
·the shooting occurred in a confined area concentrating the confrontation between the deceased and the police;
·Constable Keown had Constable Robertson behind him when confronted by the deceased;
·Constable Keown had minimal time in which to defend himself from an attack;
(h)It was also open to the Coroner to form a view as to the probability of the deceased having attacked the police officer having regard to her blood alcohol level and her history (cf Re Knowles[9]):
·The blood alcohol reading of the deceased was 0.3% and the autopsy disclosed the presence of Fluoxetine, Diazepam and Oxazepam in her blood;
·The deceased had a history of psychiatric problems and alcohol abuse. She had previously expressed suicidal and homicidal thoughts and had attempted to take her life on a number of occasions by lacerating her wrists, hanging and overdosing on psychiatric medication. Many of these actions together with admissions to psychiatric services were related to or precipitated by abuse of alcohol;
·On one occasion the deceased had assaulted a doctor when confronted with police.
[9][1984] VR 751
The Coroner identified the witness Rennie as giving evidence of particular significance in corroborating the account of Constable Keown. In my view it was open for him to form this opinion. The evidence gave an account of events up until seconds prior to the shooting when the witness turned away because of fear as to what was about to happen to the police officer. I shall set out a portion of that evidence both because of its own content and because it reflects the tenor of the evidence generally from the independent witnesses. In answer to questions from Mr. Rapke, Ms. Rennie said at p.820 of the transcript:
" - - - I saw the lady with the axe begin to move forward with the axe raised and then I stepped back so I didn't see anything past that point.
In what manner did she move forward? - - - It was – it looked aggressive.
What speed did she move forward? - - - I only saw her take maybe one, one and a bit steps so it was fairly quick.
How did the policeman react to the forward movement of the woman with the axe? - - - Well I – he was no longer in my view then because I'd stepped back but that was when I heard a gunshot.
You've said the female was threatening the policeman; in what manner was she threatening him? - - - Well she had the axe raised and she was moving towards him and being aggressive in her movements."
At p.824 of the transcript in answer to questions from Mr. Hore-Lacy, Ms. Rennie said:
" - - - Then I saw her, she had the axe raised and I saw her move forward and then I stepped back and I didn't see anything. That's when I heard the gunshot.
You saw she had the axe raised – in line with the head or above her head, or in line with her shoulders, or how? - - - I couldn't be exact. It was raised.
When you said 'she came forward', it may have been – I think you said to my learned friend – one step or - - - one and a bit, but then I moved back so I didn't see her continue.
You saw her move, just put a foot forward and move towards him? - - - She took one definite step and then started to take another and that's when I moved.
Where did you go to then? - - - I was still on the verandah but I'd moved back and I could no longer see down the stairwell.
Where was he at this stage when she took the step forward? - - - I believe he was still in the same position in that sort of 6, 7, 8 area.
You went back in I think you said, at that stage? - - - I can't recall exactly when I went back in, but I was in and out.
After you saw her take that step forward, how long after that did you hear a shot? - - - I think it would have been very, very soon, a matter of seconds.
After you heard the shot, you said some time after that you heard other shots? - - - Very soon after that.
What was the time lapse between the first and the others? - - - There was a lot of confusion and I don't – I couldn't be exact, but it was – once again I'd say it'd be a matter of seconds."
I have not had the opportunity of assessing the manner in which the oral evidence was given to the Coroner. Nor have I had the full benefit of all the reference to illustrative material which enabled the Coroner to appreciate the full effect of such evidence (including a view of the scene of death). I am satisfied on the face of the transcript, however, that it was open to the Coroner to take the view which he did of the evidence of Ms. Rennie and to treat that evidence as strongly corroborative of the evidence of Constable Keown.
The Statement made by Constable Keown
It was submitted on behalf of the applicant that the proper evaluation of the statement made by Constable Keown was central to the Coroner's findings, because no person other than Constable Keown saw the conduct of the deceased immediately prior to his shooting of her.
It is appropriate to make some preliminary observations about Constable Keown's statement:
(a)Constable Keown was separated from other witnesses by senior police officers very shortly after the shooting. The statement was prepared and formally adopted on the day of the shooting;
(b)The statement was made in a form which rendered Constable Keown potentially liable to a charge of perjury if it were false;
(c)There was evidence that at the time of the making of the statement Constable Keown was still both disturbed and shocked. In these circumstances it might be thought that its language cannot be construed as strictly as a statute;
(d)The statement related to circumstances which might be thought to have afforded "little if any, opportunity for calm deliberation or detached reflection" (Zecevic v DPP[10]);
(e)The confrontation between Constable Keown and the deceased can be shown from independent sources to have lasted no more than two minutes 20 seconds. The account of all but the final moments of this confrontation is as I have already observed directly corroborated by a number of independent witnesses;
(f)Constable Keown's statement is consistent with the record of his statements at the scene immediately following the shooting;
(g)Constable Keown's account is both detailed and circumstantial. A number of the circumstances are corroborated by the forensic evidence produced after the statement was made;
(h)Section 44 of the Act provides that the Coroner is not bound by the rules of evidence. There can be no doubt that the Coroner was entitled to receive and consider the statement in evidence;
(i)The proper approach was to assess the statement in the light of the whole of the evidence and not in isolation.
[10](1987) 162 CLR 645 at 663 per Wilson Dawson and Toohey JJ
The statement is the subject of attack principally on the basis that Constable Keown asserts that immediately before the deceased died she was "running at me". Dr. Freckleton submitted that given the dimensions of the space in which the Constable and the deceased were located, and the position of the deceased after death, this must be regarded as a false statement. If it was so regarded it was a false statement as to a central fact which it was said in effect invalidates the account of Constable Keown.
The Coroner did not uncritically accept Constable Keown's statement (just as he did not uncritically accept that police procedures and systems were appropriate). He found that he could not determine whether the reference to running was the result of a loose or precise use of this verb. He concluded that the only plausible inference to be drawn with respect to the actions of the deceased with respect to Constable Keown was that "her forward movement toward him was sufficiently more threatening than it has been on previous occasions when he hadn't fired, or when discharging the warning shot, as to create in his mind a belief that he would be killed unless he defended himself." In my view this conclusion was open to the Coroner. The conclusion was criticised in part because the Coroner went on to say:
"This inference is drawn against a background of repeated requests to put the hatchet down, the calling for backup, the discharge of a warning shot and possible placing of his revolver on the ground, each of which is indicative of Constable Keown's self control and desire not to harm the deceased."
In my view it was open to the Coroner to have regard to the sequence of events prior to the shooting and in particular the consistency of Constable Keown's prior actions with his account of his ultimate actions. Further I find that when the Coroner's discursive reasons are read as a whole, he did not form a conclusion on this matter solely by reference to the evidence as to Constable Keown's own actions but also by reference to the independent witness' account of the deceased's actions particularly the account of Ms. Rennie (paragraph 29 of the Record of Investigation). He also had regard to the substantial corroboration of Constable Keown's statement by many witnesses and its consistency with the forensic evidence (paragraph 33 of the Record of Investigation).
It was further submitted that given the doubt as to the full accuracy of Constable Keown's statement, it should not have been accorded any weight because it was not tested in oral evidence before the Coroner. I accept that this fact potentially goes to the weight which should be accorded to the statement, but so did the Coroner (paragraph 33). It was for the Coroner to assess what weight should be given to the statement having regard to the evidence as a whole.
I do not accept that it follows from the fact that the statement dealt in part with an aspect of the matter which was subsequently shown to be peculiarly within the Constable's knowledge, that it must be inferred from his failure to give oral evidence thereafter that the statement was false. There is an obvious explanation for the Constable's failure to give evidence. After the death of the deceased Mr. Khan charged Constable Keown with murder and the evidence was that this charge was only withdrawn prior to the inquest for reasons of lack of funds. (As to the long-standing practice in Victoria with respect to witnesses at an inquest who may be implicated in serious crime, see R v Coroner; ex parte Alexander[11]).
[11][1982] VR 731
Dr. Freckleton placed reliance upon the decision of the High Court in Weissensteiner v The Queen[12]. In that case the prosecution alleged that the accused's guilt could be inferred from circumstances, particularly his setting out on a voyage with those whom it was alleged he had murdered, the unexplained disappearance of those persons, and his unexplained possession of their boat and personal possessions. The accused gave no evidence in court which would explain how or when he came to be in possession of the property of those whom it was alleged he had murdered or how and when he had parted company with them. Mason CJ, Deane and Dawson JJ stated at 227-228:
"It has never really been doubted that when a party to litigation fails to accept an opportunity to place before the court evidence of facts within his or her knowledge which, if they exist at all, would explain or contradict the evidence against that party, the court may more readily accept that evidence. It is not just because uncontradicted evidence is easier or safer to accept than contradicted evidence. That is almost a truism. It is because doubts about the reliability of witnesses or about the inferences to be drawn from the evidence may be more readily discounted in the absence of contradictory evidence from a party who might be expected to give or call it. In particular, in a criminal trial, hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused."
[12](1993) 178 CLR 217
The principles underlying Weissensteiner have been further elaborated in RPS v The Queen[13] and Azzopardi v The Queen[14].
[13]199 CLR 620
[14](2001) 75 ALJR 931
In my view the circumstances of the present case are not directly analogous to Weissensteiner and the evidentiary principle which underlies the decision has no direct application to this case. Furthermore, I agree with the observations of Nyland J in Perre v Chivell[15] that the inquisitorial proceedings before a coroner are materially different from a criminal prosecution in which a Weissensteiner direction may be appropriate.
[15][2000] SASR 282
Lastly, it was submitted to me that I should adopt the reasoning of Hampel J who first considered the statement of Constable Keown in this Court. I decline to do so for two reasons:
(a)It is in my view quite clear that Hampel J embarked on a broad assessment of the weight of the evidence reflecting the then understanding of s.59 of the Act. The nature of the evaluation made by him was thus fundamentally different from the one I am required to make; and
(b)The Court of Appeal has expressly doubted a critical aspect of Hampel J's reasons and enjoined me to reach my own conclusions.
Batt JA said in Keown v Khan:
"It has not been necessary, at least so far, for this Court to consider the correctness of the primary judge's analysis, whether factual or legal, of the matters in dispute between the appellant and the first respondent. A particular matter, raised by counsel for both respondents, which it has not been necessary to consider, is the use to which untested evidence (in the wide sense of the latter word) may be put. I am not to be taken as necessarily agreeing with his Honour's analysis. As his order is to be set aside, in the event that the originating motion should come to be re-heard in the Trial Division the judge will be completely unaffected by his Honour's analysis."[16]
[16](p.79)
Conclusion
For the above reasons I allow the appeal pursuant to s.59(3)(d) of the Act with respect to the Coroner's findings pursuant to s.19(1)(e) and I dismiss the appeal with respect to the Coroner's findings pursuant to s.19(1)(b). The Court will declare that the findings of the Coroner identifying only the deceased as contributing to the cause of death are void insofar as such findings do not identify Constable Keown as a person who contributed to the cause of death of the deceased. 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 law. I make the further observation that if the Deputy Coroner who considered the matter at first instance was available to make the findings I have directed that would be an appropriate course. I do not consider that the matter warrants determination by a different coroner.
I will hear counsel as to the question of costs.
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