Khan v West - [2002] VSC 227

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…

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 West

Details

AGLC: Khan v West [2002] VSC 227
Case: [2002] VSC 227
Decision Date: 13 June 2002

CaseChat Overview and Summary

In the case of Khan v West, the appellant sought a review of the findings of a coroner concerning the death of a deceased person. The primary issue was whether the coroner's findings were against the evidence and the weight of the evidence. The appellant argued that the coroner's conclusion that the deceased's cause of death was due to a stab wound was incorrect, and that the coroner failed to identify the person who contributed to causing the death. The respondent argued that the coroner's findings were correct and that the appellant had not established that they were against the evidence or against the weight of the evidence.

The court considered the proper test to be applied in reviewing the coroner's findings. The court noted that the test is not whether the court would have reached the same conclusion, but whether the findings are against the evidence or against the weight of the evidence. The court also noted that the failure of a person causing death to give oral evidence does not necessarily mean that their involvement in the death is not established. The court found that the coroner's findings were supported by the evidence and were not against the weight of the evidence.

The court rejected the appellant's argument that the coroner's findings were against the evidence. The court found that the evidence showed that the deceased died from a stab wound, and that the person who caused the stab wound was the person who contributed to causing the death. The court also found that the failure of the person causing death to give oral evidence did not affect the coroner's findings. The court held that the coroner's findings were correct and that the review application should be dismissed.

The court dismissed the appellant's application for review of the coroner's findings. The court found that the coroner's findings were supported by the evidence and were not against the weight of the evidence. The court also found that the failure of the person causing death to give oral evidence did not affect the coroner's findings. The court held that the review application was without merit and dismissed it with costs.

Orders