Mullaley v State Coroner of Western Australia - [2020] WASC 264

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   MULLALEY -v- STATE CORONER OF WESTERN AUSTRALIA [2020] WASC 264
CORAM:   LE MIERE J
HEARD:   20 APRIL 2020
DELIVERED          :   22 JULY 2020
FILE NO/S:   CIV 2565 of 2019
BETWEEN:   TAMICA MULLALEY
Plaintiff
AND
STATE CORONER OF WESTERN AUSTRALIA
Defendant

Catchwords:

Coroners - Coroner declined to hold inquest - Application to the court that an inquest be held - Coroners Act 1996 (WA) - Section 24 - Whether it is necessary or desirable in the interests of justice that an inquest be held - On the evidence before the court, it does not appear that the action of police officers contributed to the death

Coroners - Inquests - The function of an inquest - An inquest's function is to find facts around the death - An inquest's function is not to attribute criminal or civil liability or blame for the death beyond findings necessary for the finding of 'how death occurred'

Legislation:

Births, Deaths and Marriages Registration Act 1998 (WA)
Children and Community Services Act 2004 (WA)
Coroners Act 1920 (WA)
Coroners Act 1996 (WA)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff	:	Mr M D Howard SC & Mr A Crocker
Defendant	:	Ms F B Seaward & Mr T E Ledger

Solicitors:

Plaintiff	:	The National Justice Project
Defendant	:	State Solicitor for Western Australia

Case(s) referred to in decision(s):

Chief Commissioner of Police v Hallenstein [1996] 2 VR 1
Harmsworth v The State Coroner [1989] VR 989
Keown v Khan [1999] 1 VR 69
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
Re State Coroner; Ex parte The Minister for Health (2009) 38 WAR 553
Stuart v Kirkland‑Veenstra (2009) 237 CLR 215
The State of Western Australia v Bell [No 3] [2014] WASC 341
Veitch v The State Coroner [2008] WASC 187

LE MIERE J:

Summary

Charles Alan William Edward Derschow‑Mullaley, who I will call Charlie, was born on 18 May 2012. He was 10 months old when he was brought into the Fortescue Roadhouse on the afternoon of 20 March 2013 by Mervyn Kenneth Douglas Bell (Bell). Charlie had many injuries from the top of his head to the soles of his feet. He was declared dead shortly afterwards. After a trial before Justice McKechnie sitting without a jury, on 26 September 2014 Justice McKechnie found Bell guilty of having murdered and sexually assaulted Charlie.[1]
[1] The State of Western Australia v Bell [No 3] [2014] WASC 341.
The plaintiff, Tamica Mullaley, was Charlie's mother. She was in a de facto relationship with Bell. Bell was not Charlie's father. On the evening prior to Charlie's death, Bell had seriously assaulted Ms Mullaley in Broome where they lived. Bell left the scene before police arrived. Following an altercation, police arrested Ms Mullaley and took her to hospital. Charlie remained with friends of Ms Mullaley and Bell. Subsequently Bell returned and took Charlie.
At about midnight Ms Mullaley's father, Edward Mullaley, reported to police that Bell had taken Charlie and driven off with him and was going to kill Charlie. A police search failed to find Charlie. At about 1.00 pm on 20 March 2013 Bell presented with Charlie at the Fortescue Roadhouse. Charlie was pronounced dead later that day.
Coroner Potter investigated the death of Charlie without holding an inquest and published a record of investigation of death on 6 May 2015 (Record).
On 8 April 2019 the plaintiff, by her solicitors, requested that the coroner hold an inquest into the death of Charlie. On 20 August 2019 the State Coroner decided not to hold an inquest.
By originating motion the plaintiff has applied for an order that the coroner hold an inquest into the death of Charlie.
For the following reasons the application will be dismissed.

Bell assaults Ms Mullaley

There is no relevant controversy about the events of the early evening of 19 March 2013. They are conveniently described by Justice McKechnie in his reasons for judgment (Judgment) in which he found Bell guilty of murder and sexual assault of Charlie following the trial before his Honour without a jury.[2]
[2] The State of Western Australia v Bell [No 3] [2014] WASC 341 [165] ‑ [171].
In the late afternoon of 19 March 2013 Ms Mullaley and Bell visited his cousin, Gerald Lyndon. Mr Lyndon lived with his partner, Amey McKinlay at Unit 5, 28 Forrest Street, Broome (the Unit). Some alcohol was purchased. Ms Mullaley took Charlie with her. Ms Mullaley's other son was being babysat by her father, Mr Mullaley.
During the evening the two couples were socialising under the carport at Mr Lyndon's house. Mr Lyndon's sister, Shimona Hill, was also living there. At some stage in the evening Charlie was put down to sleep.
During the course of the evening an argument developed between Ms Mullaley and Bell. As a consequence, Ms Mullaley, who was intoxicated to a degree, and Ms McKinlay, walked with Charlie to the home of a friend, Whitney Hannivig‑Jones, in Guy Street, a short distance away. After a while Ms Mullaley and Ms McKinlay returned to Mr Lyndon's house. At some stage during the evening Bell and Mr Lyndon went off to buy some cannabis and had two cones together. During the evening Bell had also consumed alcohol.

The assault on Ms Mullaley

When Ms Mullaley returned to Mr Lyndon's house, Bell was still being nasty. Ms Mullaley was drunk and could not drive so she walked back to Ms Hannivig‑Jones' house in Guy Street to collect her pram. Ms Mullaley was walking to the Guy Street house when Bell hit her from behind and knocked her to the ground. Bell seriously assaulted Ms Mullaley. When Ms Mullaley fell to the ground, Bell continued bashing her and ripped all her clothes off. Bell took off leaving her naked and bleeding.
A neighbour, Ms Gilchrist, came running over. Ms Gilchrist gave Ms Mullaley a sheet to cover herself and then called Ms Mullaley's father, Mr Mullaley, and the police.
Ms Hill and Ms McKinlay approached and tried to give Charlie to Ms Mullaley. Ms Mullaley told them to take Charlie away because she did not want him to see her like that. Ms Hill took the baby back to the Unit.
Bell returned driving a Land Cruiser, driving towards Ms Mullaley. Ms Mullaley says that Bell tried to drive her over and she ran out of the path of the Land Cruiser. Bell told her to get in. She refused. Bell drove off.

Police arrive

First Class Constable Paul Moore was on uniformed patrol and inquiry duty in a police vehicle in company with Constable Julia Huxley. At 10.35 pm they were instructed to attend the junction of Dora and Guy Streets, Broome after reports of a fight. Whilst en route, Constable Moore was informed over the radio that there was a naked female at the scene and a vehicle had been doing burn outs.
What happened after Constables Moore and Huxley arrived at the scene is described in witness statements of Constable Moore, Constable Huxley and Ms Hill.
On arriving at the scene Constable Moore saw a parked vehicle under the carport and a number of people behind the vehicle.
Ms Gilchrist informed Constable Huxley and Constable Moore that she had found a naked female on her front lawn, and that the female was now wrapped in a sheet in the carport, and that she (Ms Gilchrist) had witnessed what she thought was a male assaulting the female and the male had driven off in a four wheel drive.
Ms Mullaley, who was wrapped in a white sheet, came out from the carport. Ms Mullaley had blood surrounding her right eye, was very distressed and on seeing the police she became very aggressive and verbally abusive. Constable Huxley and Constable Moore repeatedly told Ms Mullaley to calm down as they were trying to find out exactly what had happened. Ms Mullaley continued to yell abuse at the police.
As Constable Moore and Constable Huxley were trying to ascertain what had happened, a white Land Cruiser ute drove at fast speed onto the Guy Street property and parked next to the police vehicle. Mr Mullaley got out of the vehicle and walked towards the police. Constable Moore put his hand to Mr Mullaley's chest to stop him proceeding towards Ms Mullaley. Mr Mullaley replied: 'I'm her fucking father'. Constables Moore and Huxley stepped out of Mr Mullaley's way to allow him to speak to Ms Mullaley.
Mr Mullaley said that he wanted the police to arrest a specific person for assaulting Ms Mullaley. Neither Constable Moore nor Constable Huxley can remember the name of the person Mr Mullaley asked them to arrest. Constable Moore said to Mr Mullaley that he could not arrest anybody until he had spoken to Ms Mullaley first. Mr Mullaley said 'Oh fuck off, we'll deal with it ourselves'.
At that point Constable Huxley observed Mr Mullaley carrying a baby boy in his arms. Mr Mullaley started ushering Ms Mullaley to the driver's side of his ute. Constable Huxley, Constable Moore, Ms Mullaley and Mr Mullaley were between the police vehicle and Mr Mullaley's ute. Mr Mullaley had the baby on his hip and Ms Mullaley was standing behind Mr Mullaley.
Ms Mullaley called Constable Moore a 'bald headed cunt' and then Ms Mullaley spat at Constable Moore's face. The constables tried to arrest Ms Mullaley. Mr Mullaley stood in Constable Huxley's way stopping her from assisting Constable Moore to arrest Ms Mullaley. Mr Mullaley held the baby out to Constable Huxley and said: 'Take the baby. Take the baby'. Constable Huxley yelled at Mr Mullaley: 'Take the baby away, I'm going to help my partner'. Constable Huxley moved to assist Constable Moore. Ms Mullaley was screaming and waving her arms around to make it hard to get handcuffs on her. Mr Mullaley abused the police constables. He did not have the baby with him at that point. Constable Huxley told Mr Mullaley that Ms Mullaley was under arrest for assaulting a police officer.
More police units arrived. After a struggle involving the police officers, Ms Mullaley and Mr Mullaley, Constable Moore and Constable Carberry placed Ms Mullaley into the rear of one of the newly arrived police vehicles. Senior Constable Pearson and Constable Carberry conveyed Ms Mullaley to the hospital for assessment of her injuries and mental state. Mr Mullaley followed them in his vehicle.
After Mr Mullaley had attempted to give Charlie to Constable Huxley and Constable Huxley told Mr Mullaley to take the baby away, Ms McKinlay took Charlie from Mr Mullaley. Ms McKinlay and Ms Hill took Charlie back to the Unit and took him inside the house.

Bell takes Charlie

At about 11.00 pm, which was about 30 minutes after Ms Hill and Ms McKinlay had taken the baby back into the Unit and the police had left, Bell arrived. Ms Hill told Bell that she was looking after the baby until Mr Mullaley came back. Bell said that he would take the baby and drop him off to Mr Mullaley. Bell took the baby and drove off with him. Bell was driving the four wheel drive with the baby in his arms.
About an hour or so later Mr Mullaley came to the Unit. He asked where the baby was. Ms Hill told him that Bell had him. Mr Mullaley got angry. He then left in his vehicle.
At 12.14 am Ms Hill spoke to Bell. He said he had dropped Charlie off and to tell people that he was going to Perth but he was really going to Queensland.
Mr Mullaley returned to the Unit and apologised to Ms Hill for the way he had acted before. Mr Mullaley said to Ms Hill that Bell had called up before and said he was going to kill Charlie.
At about 12.30 am Ms Hill tried to call Bell and then sent him a text message. At about 1.00 am Bell called Ms Hill and said he had Charlie with him.

Mr Mullaley reports Charlie is missing

On the hearing of this application neither party referred in any detail to what happened after Bell took Charlie. Both parties were content to rely upon the summary of those events in the report of the Corruption and Crime Commission (CCC Report).[3] The CCC Report states the following events occurred after Mr Mullaley learned that Bell had taken Charlie.
[3] Corruption and Crime Commission, Report on the Response of WA Police to a Particular Incident of Domestic Violence on 19‑20 March 2013 (21 April 2016).
Mr Mullaley returned to the hospital, told the police officers that Bell had beaten up Ms Mullaley and taken the baby, and they needed to look for him. Constable Pearson said he discussed the issue with Mr Mullaley and communicated his concerns to the shift supervisor Acting Sergeant Connor. The CCC Report makes the following observation:
Sometime before 12.05 am Broome police were in possession of information that Ms Mullaley's partner had collected Charlie and had threatened to kill him. Broome police failed to obtain any further information about the circumstances of Bell taking Charlie from the home occupied by [Ms McKinlay] and [Ms Hill]. Neither [Ms McKinlay] nor [Ms Hill] were contacted by police in the early hours of 20 March 2013 in relation to Bell taking Charlie and his possible whereabouts. They were not contacted until about 10.00 am the next morning.
Why [Ms McKinlay] and [Ms Hill] were not contacted and interviewed before 10.00 am is unknown.[4]
[4] CCC Report [53].
Mr Mullaley went to the Broome police station a short time after midnight and requested a welfare check of Charlie. Acting Sergeant Connor said that a CAD[5] task was generated to action patrols in Broome to try and locate addresses where Bell and the child might be. However, the CAD task was not generated until 1.20 am.
[5] Computer‑aided dispatch.
At 12.09 am Mr Mullaley telephoned 000. He informed the operator, Senior Constable Donarski, that he had previously attended Broome police station and reported the matter. He explained he was driving around Broome looking for his daughter's partner who had taken her baby. He stated 'it's my 9 month old grandson and he has threatened to kill him'.[6] Senior Constable Donarski explained that she could not direct his call to the Broome police however she could 'put a job on'.[7] She said she would contact the sergeant in Broome. Senior Constable Donarski telephoned Broome police station and spoke to Constable Wright who was the CAD console operator for the shift. Senior Constable Donarski told Constable Wright that Mr Mullaley was extremely concerned for his grandson.[8]
[6] CCC Report [60].
[7] CCC Report [62].
[8] CCC Report [63].
A CAD task was created at 1.20 am. It read:
LOTBKF[9] for 1AFU696 ‑ beige coloured Land Cruiser wagon. Vehicle involved in possible DV incident on 19/3/2013 … please check on the welfare of any children on board.[10]
Unfortunately the identified registration plate for Mr Mullaley's vehicle, which had been taken by Bell, was not correct.
[9] Look out to be kept for.
[10] CCC Report [76].
At 2.14 am a CAD entry was made relating to a call from the Department of Child Protection and Family Support to Broome police station. Crisis Care (DCP) had contacted the police after being contacted by Mr Mullaley.[11] DCP requested a welfare check of Charlie. The CAD task type was amended from 'LOTBKF' to 'welfare check'.
[11] CCC Report [81].
From 3.03 am to 3.33 am Mr Mullaley attended the Broome police station and spoke to Constable Wright. Constable Wright said Mr Mullaley had difficulty identifying the vehicle being driven by Bell as he had multiple vehicles registered to him, due to his business, and they were all Toyota Land Cruisers. Mr Mullaley told Constable Wright: 'Bell is going to hurt the baby'.[12]
[12] CCC Report [85] ‑ [86].
At 4.15 am the CAD task was updated regarding a telephone call from Mr Mullaley. It stated that Mr Mullaley said that Bell had contacted him and they had a long and heartfelt conversation and Mullaley said he no longer had any welfare concerns for the child. Mr Mullaley said he could not recall the conversation with Bell that formed the basis of the 4.15 am CAD entry. He said he was not satisfied that Charlie was safe at any stage.[13]
[13] CCC Report [93].
At 5.45 am the vehicle being driven by Bell left the Pardoo roadhouse without paying for fuel. At 6.40 am staff from the Pardoo roadhouse contacted Karratha Police but provided an incorrect vehicle registration. Karratha Police conducted a search on the incorrect details and issued a LOTBKF in the Pilbara at 6.55 am. Despite Pardoo being close to the Kimberley/Pilbara border, this LOTBKF was not sent to the Kimberley.
At about 9.00 am Mr Mullaley again attended the Broome police station because Bell had not returned Charlie as previously arranged. The CAD indicates that sometime before 9.20 am Sergeant Withers, who was the day shift supervisor at Broome Police Station, tasked Constable Leonard to telephone roadhouses north and south of Broome. At 10.13 am a call was made from Broome Police Station to Roebuck Plains Roadhouse. Between 12.21 pm and 1.02 pm calls were made to a number of other roadhouses.
At 10.58 am Sergeant Withers telephoned the Police Operations Centre (POC) in relation to authorisation for triangulation. The call was answered by Inspector Davis. Sergeant Withers informed Inspector Davis that an 8‑month‑old child had been taken by its mother's current partner. He (Sergeant Withers) said Broome Police were treating the matter as a missing person, however, it may be 'scaled up to a possible child abduction'.[14] Inspector Davis queried whether there were any concerns that Bell may not look after the child. Sergeant Withers responded by explaining the circumstances of Charlie being handed to Bell by Ms Hill the previous night. Sergeant Withers told Inspector Davis the child's grandfather was informed that the child's mother has said Bell made threats to take and kill the child. Sergeant Withers explained that at that time they did not have a statement from the child's mother relating to the threats. Inspector Davis responded that on that basis there was nothing POC could do to assist. Inspector Davis explained that the legislation the POC operate under requires a serious and imminent threat to the child and they would require direct evidence of the threats.
[14] CCC Report [116].
Between 11.10 am and 12.28 pm the running sheet was updated and a record made of Ms Mullaley saying she was assaulted by Bell and she had spoken to Bell's cousin who told her Bell was heading to Mullewa.
At 12.57 pm a LOTBKF was broadcast to all districts by the Crime and Intelligence Coordination Unit (CICU).
At 1.55 pm Broome Police were informed Bell had taken a child into the Fortescue roadhouse and was performing CPR on the child. Charlie was dead by the time Bell brought him into the roadhouse.

Bell convicted of murder and sexual assault

Bell stood trial in August 2014. On 26 September 2014 he was convicted of murder and sexual assault and subsequently sentenced to a term of life imprisonment with a minimum of 27 years before parole. On 22 May 2015 Bell pleaded guilty to assaulting Ms Mullaley and was sentenced to 4 years 10 months' imprisonment concurrent with the life sentence. On 7 September 2015 Bell took his life in Casuarina prison.
Ms Mullaley was found guilty of assaulting police following a trial in September 2015. On 21 October 2015 the magistrate gave her a 12 months suspended sentence citing the need for the court to be merciful.
On 25 September 2015 Mr Mullaley was convicted of obstructing police officers and fined $300.

Police internal report

The CCC Report refers to a WA Police Internal Affairs Unit (IAU) investigation into the response by Broome Police to reports that Bell had abducted Charlie. Neither the material considered by that investigation nor its report or outcome is before the court. The CCC Report states that the Commission had access to the IAU investigation including statements and documents and access to other material.

ALSWA request investigation

On 14 May 2013 the Aboriginal Legal Services of Western Australia (ALSWA), on behalf of the Mullaley family, made a complaint to the CCC 'about the fashion in which the police in Broome treated the incidents leading to the death of baby Charles'. The ALSWA letter of complaint set out an outline of the events leading to the arrest of Ms Mullaley, Ms Mullaley being taken to the hospital and Mr Mullaley following the police and his daughter to the hospital. The letter then states:
Mr Mullaley left [Charlie] in the care of the women at the house in Guy Street and at that stage he was in no danger and was being cared for. Mr Mullaley's concern at the time was his daughter, Ms Mullaley, as he knew she would be extremely distressed and had been badly injured and was bleeding.

The letter then states that Mr Mullaley returned to the Unit where he was told that Bell had returned and taken Charlie. When he was told that Bell had taken Charlie, Mr Mullaley immediately thought there would be a problem and had serious concerns for the safety of Charlie. The letter sets out Mr Mullaley's efforts to get the police to search for Bell and Charlie and his own efforts to do so.
The letter expresses concerns about police inaction leading to the death of Charlie. It states:
No look out was kept for the Toyota Land Cruiser from the Broome police to the South Hedland police and then Roebourne and Karratha police;
Police had the opportunity to intercept the vehicle at either the Marble Bar turnoff or just outside Pt Hedland;
Had the police acted in a timely fashion instead of attending to matters such as the processing of Ms Mullaley for the charge of assaulting police, but instead had attended to locating and finding the deceased and Mr Bell, the death of baby Charles could have been avoided.
The letter goes on to complain that the Mullaley family have been harshly treated by the police. The letter concludes:
We request that this complaint against the police be investigated and acted upon as soon as possible. We're of the strong view that the death of baby Charles could have been avoided had the police acted in a professional manner.
We also believe that had the police acted professionally in attending to the aftermath of the incident where Ms Mullaley was badly injured, it would not have been necessary to charge either Ms Mullaley or her father with any offence.

CCC Report

The CCC Report was transmitted to the clerks of the Legislative Council and the Legislative Assembly on 21 April 2016. The report states that Bell seriously assaulted Ms Mullaley and then abducted Charlie. The report then says:
WA Police became involved in responding to a call from a witness to the assault. The responses are the subject of this report.
Whether a more rapid response may have saved Charlie is impossible to know but it's important to recognise that Bell alone was responsible for Charlie's fate.
The report refers to the WA Police internal investigation into the response by Broome Police and to reports that Bell had abducted Charlie. The report says that the Commission's review:
focused on the way WA Police officers on night shift in Broome on 19 ‑ 20 March 2013 handled both their initial interactions with Ms Mullaley, her father, Mr Edward Mullaley, and subsequent interactions over the course of the night and day which followed.
The report states:
Failures by individual officers on the night do not justify an opinion of serious misconduct. Collectively though they contributed to a delayed and ineffective response. An incident that began as a serious assault on Ms Mullaley by her de facto partner, Bell, ultimately became a search for a missing child that ended with tragic consequences.

Investigation of death by Coroner Potter

On 20 March 2013 District Coroner Potter received a notification of the death of Charlie. Coroner Potter proceeded to conduct an investigation into the death of Charlie without holding an Inquest. On 6 May 2015 Coroner Potter published the Record which set out his findings under s 25(1) of the Coroners Act 1996 (WA) (the Act) as follows:
(a)The identity of the deceased ‑ Charles Alan William Edward Derschow‑Mullaley.
(b)How death occurred ‑ death arose by way of unlawful homicide.
(c)The cause of death - unascertained.

Ms Mullaley requests inquest

On 8 April 2019 Ms Mullaley, by her solicitors, the National Justice Project (NJP), wrote to the State Coroner requesting that an inquest be held into the death of Charlie.
NJP referred to s 22(1)(b) of the Act which provides that a coroner must hold an inquest if it appears that the death was caused, or contributed to, by any action of a member of the Police Force. The letter states that members of the WA police force 'were in control and custody of the deceased in the hours before he was murdered' and that circumstance mandates an inquest. The NJP go on to say that an inquest would have broader utility beyond the immediate interest of Charlie's family. NJP submitted that there is scope for recommendations under s 25(2) of the Act particularly in relation to:
(a)the treatment of victims of gender based violence by the WA police force and in particular First Nations victims;
(b)the medical care of injured victims and those individuals who are charged by police who have injuries; and
(c)the care and safety of children at crime scenes, particularly at the scenes of domestic violence.

State Coroner decides not to hold inquest

Section 24 of the Act provides that if a person asks a coroner to hold an inquest into a death which a coroner has jurisdiction to investigate, the coroner may hold an inquest or refuse the request.
The State Coroner follows a standard procedure in considering any application for an inquest. The State Coroner requested the Principal Registrar of the Coroner's Court to arrange for counsel to provide advice on the matters raised in the NJP letter.
On 7 May 2019 Darren Jones, counsel assisting the Coroner, prepared a memorandum to the State Coroner regarding the application for an inquest. Mr Jones recommended:
1.An inquest is not mandatory pursuant to s 21(1)(b) in these circumstances because it is not reasonably apparent that the death was caused, or contributed to, by any action of a member of WA police.
2.It is not necessary or desirable in the interests of justice that an inquest should be held.
Coroner Potter reviewed the NJP letter and informed the State Coroner that he agreed with Mr Jones' advice that the circumstances of the death of Charlie did not invoke the mandatory inquest provisions of the Act. Coroner Potter said that having reviewed the material available to him, he considers that his findings would not be disturbed.
The State Coroner considered the material available to her including the NJP letter, Mr Jones' memorandum and Coroner Potter's letter. The State Coroner decided not to set aside Coroner Potter's finding. On 20 August 2019 Mr Jones wrote to NJP stating that the State Coroner had decided that the findings made by Coroner Potter will not be set aside and a public inquest will not be held. The State Coroner's reasons for this decision are:
1.An inquest is not mandated by the Act in this case. There is no reasonable appearance that any act or omission by any police officer who attended the scene of the assault on Ms Mullaley on 19 March 2013 caused or contributed to Charlie being murdered by Mr Bell on 20 March 2013. The evidence shows that Charlie was in the care of family members at the address and that there was no indication to police, or to any other person present, that Charlie was in any danger at the time, or that he would be in danger at a later time. At no stage did the police have custody or control of Charlie in any relevant sense.
2.There is no new information in your submissions, or in any of the other sources reviewed by Coroner Potter or the State Coroner, to suggest that any of the findings that were made in accordance with s 25(1) should be reconsidered or modified.
3.The findings made on 6 May 2015 are not set aside for the reasons above. Accordingly, an inquest cannot be held and so there is no utility in considering potential s 25(2) issues in this case.

Application to this court

Ms Mullaley has applied under s 24(2) of the Act to this court for orders:
1.The findings made by Coroner Potter on 6 May 2015 be set aside.
2.The decision made by the coroner on 26 August 2019 and notified to the plaintiff on 26 August 2019 be set aside.
3.The coroner is directed pursuant to Coroners Act s 24(3) to conduct an inquest into the death of Charles Derschow‑Mullaley.
Senior counsel for Ms Mullaley, Mr Howard SC, explained that the orders sought setting aside the findings of Coroner Potter and the State Coroner are sought consequential upon an order under s 24(3) of the Act that the coroner conduct an inquest. The plaintiff does not seek to set aside the findings of Coroner Potter or the State Coroner on any separate or independent ground.

Submissions of State Coroner

Counsel for the State Coroner, Ms Seaward, made written and oral submissions to assist the court. These submissions addressed the construction and interpretation of the Act and the evidence before the court. The State Coroner did not make any submissions on the merits of the application and whether the application should be granted or refused.
Ms Seaward described the findings of Coroner Potter made under s 25(1) and recorded in the Record in accordance with s 26(1) as administrative findings. Ms Seaward submitted that where findings have been made under s 25(1), any decision by the coroner under s 24(1) to hold an inquest will require the coroner to set aside those findings. Further, Ms Seaward submitted that any decision by the court under s 24(3) to order an inquest will also require the court to set aside the findings of Coroner Potter. Ms Seaward submitted that the power to set aside the administrative findings arises on the construction of s 24(1) and 24(3) as a consequential order upon the decision of the coroner or the court to hold or order that an inquest be held.

Outline of Coroners Act pt 4

Section 19 confers on a coroner jurisdiction to investigate a death if it appears to the coroner that the death is or may be a reportable death. Reportable death is defined in s 3 of the Act to be a Western Australian death falling within any of the 10 categories specified in the definition. The categories include a death:
(a)that appears to have been unexpected, unnatural or violent or to have resulted, directly or indirectly, from injury;
and
…
(g)that appears to have been caused or contributed to by any action of a member of the Police Force.
Section 22 is the source of a coroner's authority to conduct an inquest. A coroner is not obliged to conduct an inquest into all reportable deaths. A coroner must conduct an inquest if the death appears to be a Western Australian death falling within any of the six categories specified. The categories include:
…
(b)it appears that the death was caused, or contributed to, by any action of a member of the Police Force.
Coroner Potter investigated the death but did not hold an inquest. I infer therefore that it appeared to Coroner Potter that Charlie's death appeared to have been unexpected, unnatural or violent or to have resulted, directly or indirectly, from injury but it did not appear that the death was caused, or contributed to by any action of a member of the police force.
Section 24(1) provides for a person to apply for an inquest to be held. Any person may request that a coroner hold an inquest provided the coroner has jurisdiction to investigate the death. If the coroner refuses the request, a person may apply to the court for an order that an inquest be held. Section 24(3) provides that the court may make an order that an inquest be held 'if it is satisfied that it is necessary or desirable in the interests of justice'.
Section 25 is central to the function of the coroner in investigating a death, with or without an inquest. Section 25(1) confers on the coroner the jurisdiction and obligation, if possible, to find the identity of the deceased;[15] how death occurred;[16] the cause of death;[17] and the particulars needed to register the death under the Births, Deaths and Marriages Registration Act 1998 (WA).[18]
[15] Section 25(1)(a).
[16] Section 25(1)(b).
[17] Section 25(1)(c).
[18] Section 25(1)(d).
Section 26 requires a coroner to keep a record of each investigation into a death in the prescribed form. The prescribed form requires the coroner to record that they have investigated the death of a person and whether it was with or without holding an inquest. The coroner must then record the identity of the deceased person, the date and place of death, the cause of death and the circumstances in which the death occurred.

Ground 1 of the application

The first ground of the plaintiff's application is that the death of Charlie occurred in circumstances which mandate an inquest be held pursuant to s 22(1)(b) of the Act. The circumstance which mandates, that is, requires by law, that an inquest be held pursuant to s 22(1)(b) is that it appears that the death was caused or contributed to by any action of a member of the police force.
The plaintiff submits that the threshold which must be reached to engage s 22(1)(b) of the Act is that 'it appears' that the circumstance exists, and such a threshold is less demanding than the concept of being 'satisfied' of the existence of the circumstance. The plaintiff submits that whether or not it appears that the circumstance exists must be considered in the context of the time at which the provision operates within the Act. That is, it operates at an early stage of the investigation process rather than after the conduct of an inquest. The threshold operates as a gateway to further steps and actions and does not require a final conclusion to be reached.
I agree with those submissions but the threshold is a gateway to the coroner holding an inquest under s 22 of the Act, not a gateway to the court ordering an inquest under s 24 of the Act. Section 22(1) is directed to the coroner and governs the power of a coroner to hold an inquest. Section 22(1) does not govern the exercise of the power of the court under s 24. The test under s 24 is whether it is necessary or desirable in the interests of justice that an inquest be held.
In oral submissions senior counsel for the plaintiff, Mr Howard SC, submitted that if it appears the death was contributed to by any action of a member of the police force, then, absent any extraordinary circumstances, the court would find that it is necessary or desirable in the interests of justice to order an inquest be held. Mr Howard submitted that if on the material before the court there is a realistic possibility that the death was contributed to by a member of the police force, then it is necessary or desirable in the interests of justice that an inquest be held.
Mr Howard sought support for his submissions in the judgment of Justice Beech in Veitch v The State Coroner.[19] In Veitch the deceased, Mr Stenhouse, died in a car accident. The deceased was driving a vehicle which collided with a steel barrier and travelled down an embankment and into the river. The deceased died from his resulting injuries. The coroner inquired into the death and published his findings. The coroner found a raised cannabis level in the deceased's blood and that death arose by accident. The plaintiff requested an inquest into the death. The plaintiff stated that the accident was caused by a police patrol car which collided with the deceased's vehicle. The plaintiff alleged a cover up by WA police. The coroner considered the materials submitted by the plaintiff and declined to hold an inquest. The plaintiff applied to the court for an order that an inquest be held.
[19] Veitch v The State Coroner [2008] WASC 187.
Justice Beech referred to cases concerning the analogous s 14 of the repealed Coroners Act 1920 (WA) (the repealed Act). His Honour observed that it has been held that in an application under s 14 of the repealed Act, to satisfy a court that it is necessary or desirable in the interests of justice that another inquest should be held when one has already been held, it is not necessary to establish that a different verdict will probably be arrived at on a second inquest. It will be sufficient if there is a possibility that the result of a second inquest will be different from the first but there must be something more than mere speculation. Those cases establish that it is not necessary that the evidence relied on be fresh evidence. Justice Beech considered that the reference to the possibility of a different outcome should be read as a reference to a real or realistic possibility, not a merely theoretical possibility.[20] Further, his Honour said that the new evidence required must reach a 'threshold of some degree of cogency' and an assessment must be made as to whether the additional material is capable of bearing upon the verdict previously reached.[21]
[20] Veitch v The State Coroner [2008] WASC 187 [44].
[21] Veitch v The State Coroner [2008] WASC 187 [44].
Justice Beech considered that whether it appears that the death was caused or contributed to by any action of the police force was a relevant factor in the exercise of the court's discretion whether to order an inquest be held. It was in that context that Beech J said:
If I was satisfied that the new material now available gave rise to a realistic possibility that an inquest might conclude that Mr Stenhouse's death was caused or contributed to by a collision with a police car, I would order that an inquest be held. In those circumstances it would, in my opinion, be necessary or desirable in the interests of justice that an inquest be held.[22]
[22] Veitch v The State Coroner [2008] WASC 187 [63].
Justice Beech was not satisfied that the new affidavit material gave rise to a realistic possibility that an inquest might conclude that a police car was involved in Mr Stenhouse's death and declined to order that an inquest be held.
The circumstances in Veitch are very different from the circumstances of this case. The issue which the plaintiff agitated in Veitch, apart from the alleged police cover up, was a simple question of fact ‑ did a police car collide with the deceased's vehicle before it hit the steel barrier? That was a matter the coroner was bound to decide in making one of the findings s 25(1) requires the coroner to make ‑ 'how death occurred'. The basis of the plaintiff's application was new evidence supporting the plaintiff's contention that a police car collided with the deceased's car. One can readily understand the view of Beech J that if the new material gave rise to a realistic possibility that an inquest might conclude that a police car collided with the deceased's vehicle, and hence contributed to the death of the deceased, it would be necessary or desirable in the interests of justice that an inquest be held and there be a thorough investigation of the 'new evidence' and all of the circumstances leading to and subsequent to the accident.
This case is very different. The plaintiff has not produced any new evidence of what happened on 19 and 20 March 2013 which gives rise to a realistic possibility that a coroner might find the facts concerning 'how death occurred' to be different from those found by Coroner Potter. Rather, the plaintiff argues that the coroner should have, but did not, conclude that an action of a member of the police force contributed to the death.
In conducting the investigation into the death of Charlie, Coroner Potter had regard to the following documents in relation to the incident at Guy Street:
•the statements of Shimona Hill dated 20 March 2013 and 5 June 2013;
•Judgment of McKechnie J;[23] and
•P100 Form and Memorandum from Detective Sergeant Bradley (Major Crime) to Detective Inspector Pears (IOC Major Crime) dated 25 December 2014 (the Bradley Memorandum).
The only additional evidence adduced by the plaintiff is:
•statement of Constable Moore 20 March 2013;
•statement of Constable Huxley 20 March 2013.
The plaintiff has put other material before the court, including the CCC Report, but it does not add any evidence of what occurred when the police attended the Guy Street incident.
[23] The State of Western Australia v Bell [No 3] [2014] WASC 341.
The plaintiff's case is that the evidence before the court gives rise to a realistic possibility that after an inquest, a coroner would find that Charlie's death was contributed to by an act of a member of the police force. The 'act' is identified in the particulars of ground 1 of the application to be the act of 'not taking the 10 month old child into care and protection but rather leaving him at the scene of the incident in the care of Ms Hill and Ms McKinlay'.

The plaintiff submitted that the police officers had power under s 37 of the Children and Community Services Act 2004 (WA) (CCS Act) to take Charlie into care and protection. Section 37 of the CCS Act authorises a police officer to take a child into provisional protection and care if the officer suspects, on reasonable grounds, that there is an immediate and substantial risk to the child's wellbeing.
The particulars relied upon by the plaintiff in support of this ground assert that Charlie was present with his mother, that the police decided to leave Charlie in the care of two young female neighbours who were not related to the child and who were themselves vulnerable, and that the police refused the request by Mr Mullaley that the police take control of Charlie to keep him safe.
Those contentions are inconsistent with the evidence before the court. Charlie was not present with his mother when the police arrived. Ms Hill had taken Charlie inside the Unit. Ms Mullaley was about three houses away from the Unit.
There is no evidence that Ms Hill and Ms McKinlay were in any relevant sense vulnerable. The police did not decide to leave Charlie in their care. Ms Mullaley had left Charlie in their care. Charlie was in their care when the police arrived and after holding Charlie for a brief time, Mr Mullaley returned Charlie to their care.
Mr Mullaley did not request that the police take control of Charlie 'to keep him safe'. Ms McKinlay and Ms Hill had left the Unit with Charlie after the police officers had arrived. When Mr Mullaley arrived, Ms McKinlay gave Charlie to Mr Mullaley. When Constable Moore and Constable Huxley tried to arrest Ms Mullaley, Mr Mullaley moved between Ms Mullaley and Constable Moore and blocked Constable Moore from getting to Ms Mullaley. Mr Mullaley was holding Charlie. Constable Moore said: 'What are you doing, you've got a baby there, get out of my way'. Mr Mullaley held the baby out to Constable Huxley and said: 'Take the baby'. Constable Huxley shouted at him: 'Take the baby away, I'm going to help my partner'. Ms McKinlay then took the baby off Mr Mullaley. Ms Hill and Ms McKinlay took the baby back to the Unit.
The only risk to Charlie's safety or wellbeing during the incident arose from Mr Mullaley holding Charlie whilst he struggled with the police. That was resolved by Ms McKinlay taking the baby off Mr Mullaley and back to the Unit.
The plaintiff's case that the police contributed to the death of Charlie by failing to protect him from harm that was caused by Bell by exercising their power under CCS Act s 37, that is, to take Charlie into provisional protection and care, is not supported by the evidence. First, CCS Act s 37 confers a power on police but no duty to exercise the power.
Secondly, to establish that the police ought to have exercised the power it has to be shown that the police suspected, or ought to have suspected, at the time, the existence of an immediate and substantial risk to the wellbeing of Charlie. The evidence does not establish that. There is no evidence that the police officers who attended the scene after Ms Mullaley had been assaulted (the Guy Street incident) suspected that there was an immediate and substantial risk to Charlie's wellbeing, nor that they ought to have suspected that. The fact that Ms Mullaley had apparently been seriously assaulted by her de facto partner did not indicate an immediate and substantial risk to Charlie's wellbeing in the circumstance where Charlie was in the care of Ms McKinlay and Ms Hill when the police arrived and remained in their care. There was no suggestion at that time that Bell or anyone else had harmed or threatened to harm Charlie. The ALSWA letter to the CCC written on the instructions of Mr Mullaley's sister as a representative of the Mullaley family stated:
Mr Mullaley left the deceased in the care of the women at the house in Guy Street and at that stage he was in no danger and was being cared for.
Mr Howard referred to an extract from a document described as Western Australia Police Force Policy as at 8 March 2013 (Policy) which appears to contain policies relating to various situations. As I understand it the relevance of the Policy is said to be twofold. First, it is said that the failure of police officers to follow the policies and procedures is relevant to whether their omissions contributed to Charlie's death. Secondly, it is said that the adequacy of the policies and procedures is something a coroner might comment upon.
The principal provision of the Policy referred to by Mr Howard is JV‑1.2.3:
JV‑1.2.3 Children of Arrests Persons
A police officer involved in the arrest or detention of any person, including other juveniles, must ensure that adequate provision is made for the welfare of any dependent children in the care of the arrested person.
•Arrange care with relatives or friends nominated by the arrested person;
•Notify the local office of the Department for Child Protection for assistance if a responsible adult cannot be contacted; or
•Notify the Crisis Care Unit, Department for Child Protection on 9223 1111 or toll free 1800 199 008, where the local office is unattended.
•In extreme cases, consider a 'Care and Protection' application.
The evidence does not establish that any of the police officers who attended the Guy Street incident failed to comply with policy JV‑1.2.3. First, notwithstanding that Mr Howard says it should have been, it was not apparent to the police officers that Charlie was in the care of Ms Mullaley. More fundamentally, the policy provides that the police officers should arrange care with relatives or friends nominated by the arrested person. The obligation of the police officers, if any, was discharged by allowing Charlie to remain in the care of Ms McKinlay and Ms Hill. They were caring for Charlie when the police arrived and it appeared that if they were not his legal guardians, they were caring for him with the authority of his parent or guardian. Mr Mullaley who appeared to have some relationship with Charlie returned him to the care of Ms Hill and Ms McKinlay.
Mr Howard also referred to various provisions of the Policy relating to domestic violence. None of those provisions gives rise to any obligation to take Charlie into care and protection or any other relevant obligation, norm or standard breached by the police officers whilst they were attending the incident at Guy Street.
The most relevant policy relating to domestic violence is DV 1.1.7‑Children Exposed to Family and Domestic Violence. That policy provides that where a member becomes aware of a child who is being exposed to an act or acts of family and domestic violence they must consider the safety and wellbeing of that child. The policy provides that in considering the safety and wellbeing of the child, the member should take into account the presence of a suitable protective adult. If the member is of the opinion that the child does not have a suitable protective adult or is unsure of that adult's ability to be protective and the safety of the child is potentially at risk, then they must consider the need to issue a Police Order for the protection of the child at risk.
It was not apparent to the police officers that Charlie was being exposed to acts of family and domestic violence. Bell was not present when the police attended. Charlie was in the care of Ms Hill and Ms McKinlay and did not appear to have been exposed to Bell's assault upon Ms Mullaley. In any event, Charlie was returned to the care of Ms Hill and Ms McKinlay who appeared to be suitable protective adults. Mr Howard explained that the Police Order referred to in the policy is an order to take a child into provisional protection and care pursuant to CCS Act s 37. For the reasons which I have explained, the evidence does not establish that that power was enlivened or, if it was, that it ought to have been exercised.
Questions of causation often arise for the purpose of attributing responsibility to someone, for example, so as to blame them for something which has happened or to make them guilty of an offence or liable in damages. In such cases, the answer will depend upon the rule by which responsibility is attributed.
In Chief Commissioner of Police v Hallenstein,[24] Hedigan J applied the rule of responsibility propounded by the law of negligence as explained by the High Court in March v Stramare,[25] to answer the question of whether a person had contributed to the death of the deceased. In Re State Coroner; Ex parte The Minister for Health,[26] Buss JA, with whom Martin CJ and Miller JA agreed, cited March v Stramare as authority for the proposition that delineating acts and omissions which are to be characterised as causing the death for the purposes of s 25(1) of the Act, is to be undertaken by applying ordinary common sense and experience to the facts of the particular case.
[24] Chief Commissioner of Police v Hallenstein [1996] 2 VR 1.
[25] March v E & MH Stramare Pty Ltd (1991) 171 CLR 506.
[26] Re State Coroner; Ex parte The Minister for Health (2009) 38 WAR 553.
Coroner Potter found that the cause of death was unascertained.
'The cause of death' focuses on the medical cause(s) of death, not the legal responsibility for it, or the circumstances in which it occurred. To that extent it is quite different from the issue of causation that arises in criminal or civil litigation. The chain of causation involves matters that should be dealt with in findings of 'how death occurred'. It is in relation to that finding that the external factors that led to the medical cause of death are also to be described.
In Re State Coroner; Ex parte The Minister for Health, the Court of Appeal considered the nature and ambit of the findings which a coroner must make, if possible, under each of pars (a), (b), (c) and (d) of s 25(1) of the Act. In discussing the findings under s 25(1) Buss JA, with whom Martin CJ and Miller JA agreed, referred to the concept of causation only in relation to the finding of 'the cause of death' under s 25(1)(c) of the Act. His Honour said:
Section 25(1)(c) does not, however, authorise a coroner to undertake a roving Royal Commission for the purpose of inquiring into any possible causal connection, no matter how tenuous, between an act, omission or circumstance on the one hand and the death of the deceased on the other. See R v Doogan; Ex parte Lucas-Smith [2005] ACTSC 74; (2005) 193 FLR 239 [28] (Higgins CJ, Crispin & Bennett JJ).
It will be necessary, in each inquest, to delineate those acts, omissions and circumstances which are, at least potentially, to be characterised as causing or a cause of the death of the deceased. This is to be undertaken by applying ordinary common sense and experience to the facts of the particular case. See March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506, 515 (Mason CJ), 522 (Deane J); WRB Transport [21]; Saraf [18] ‑ [19]; Doogan [29] [46] ‑ [47].[27]
[27] Re State Coroner; Ex parte The Minister for Health (2009) 38 WAR 553, 566.
The plaintiff does not suggest that a coroner might make a different finding of the cause of death after an inquest. The plaintiff's contentions are concerned with the finding a coroner might make of 'how death occurred'.
'How death occurred' refers to the manner of death or mechanism of death and the context in which it occurred. In Re State Coroner; Ex parte The Minister for Health, Buss JA, with whom Martin CJ and Miller JA agreed, said that s 25(1)(b):
confers on the coroner the jurisdiction and obligation to find, if possible, the manner in which the deceased happened to die. This does not refer only to the means or mechanism by which the death was suffered or inflicted. It extends to the circumstances attending the death. In my opinion, a construction of s 25(1)(b) which entitles and requires the coroner to find, if possible, by what means and in what circumstances the death occurred reflects the public interest which is protected and advanced by a coronial investigation (especially an investigation into deaths where one or more of the conditions in s 22(1) of the Act are satisfied) [42].[28]
[28] Re State Coroner; Ex parte The Minister for Health (2009) 38 WAR 553, 565.
Coroner Potter made the following finding of 'how death occurred' including 'the circumstances attending the death':[29]
The deceased was the second child of Tamica Mullaley. Ms Mullaley was in a de facto relationship with Mervyn Bell. He was not the father of the deceased. They resided in Broome, Western Australia.
On 19 March 2013 Ms Mullaley and Mr Bell had a verbal and physical argument in Broome during which Ms Mullaley was assaulted by Mr Bell. At this time the deceased was being looked after by a family member, Shimoa Hill. After the incident with Ms Mullaley, Mr Bell took charge of the deceased from Ms Hill and drove away from Broome with him. At the time of Mr Bell leaving with the deceased, the deceased was healthy, well cared for and without injury.
On 20 March 2013 Mr Bell presented with the deceased at the Fortescue Roadhouse, Fortescue River, via Karratha. The deceased was unconscious and paramedics were called to attend. The deceased was transferred to Nickol Bay Hospital, Karratha by ambulance. Life was Certified Extinct at 4:30pm on 20 March 2013 by Doctor Anand S Deshmukia at Nickol Bay Hospital, Karratha.
A post‑mortem examination was conducted and was unable to determine the cause of death. The deceased had suffered severe internal and external injuries.
Between 18 August and 3 September 2014 Mervyn Bell stood trial in the Supreme Court of Western Australia sitting at Perth. On 26 September he was convicted of Murder. On 12 December 2014 Mr Bell was sentenced to life imprisonment, with a minimum of 27 years before being eligible for parole.
I find that death arose by way of Unlawful Homicide.
[29] Section 25(1)(b) confers on the coroner the jurisdiction and obligation to find, if possible, the manner in which the deceased happened to die … it extends to the circumstances attending the death Re State Coroner; Ex parte The Minister for Health (2009) 38 WAR 553 [42].
The plaintiff does not question the finding that the death arose by way of Unlawful Homicide or any of the coroner's findings of the circumstances attending the death, except that the plaintiff questions the description of Ms Hill as a family member.
If, by 'family member' the coroner meant a member of the nuclear family of Ms Mullaley and Charlie, that is wrong. However, it is doubtful that the coroner meant that. The coroner considered the Bradley Memorandum and the statement of Ms Hill. The Bradley Memorandum said that Charlie was placed temporarily in the care of a friend who was present at the Unit and that Bell returned to the Unit and took Charlie from this friend. Ms Hill's statement said that Bell is family, he was her second cousin and she knew Ms Mullaley because Ms Mullaley is Bell's partner. It is most likely that the coroner was referring, perhaps loosely or inaccurately, to the extended family relationship described by Ms Hill. In any event, I do not consider the discrepancy, if there be one, to be significant. When the police arrived Ms Hill was caring for Charlie, apparently with the authority of his mother. In the ALSWA letter the Mullaley family said that Mr Mullaley left the child in the care of the women at the house and at that stage he was in no danger and was being cared for.
A coroner is not to make findings of causation or contribution in relation to matters that are too remote.[30] An inquest cannot properly be an exercise in endless regression. As Deane J said in March v Stramare:
Thirdly, the mere fact that something constitutes an essential condition (in the 'but for' sense) of an occurrence does not mean that, for the purposes of ascribing responsibility or fault, it is properly to be seen as a 'cause' of that occurrence as a matter of either ordinary language or common sense. Thus, it could not, as a matter of ordinary language, be said that the fact that a person had a head was a 'cause' of his being decapitated by a negligently wielded sword notwithstanding that possession of a head is an essential precondition of decapitation.[31]
[30] See eg Harmsworth v The State Coroner [1989] VR 989; Chief Commissioner of Police v Hallenstein [1996] 2 VR 1; Keown v Khan [1999] 1 VR 69; Re State Coroner; Ex parte The Minister for Health (2009) 38 WAR 553.
[31] March v E & MH Stramare Pty Ltd (1991) 171 CLR 506, 523.
The extent of permissible regression cannot be easily identified. It will sometimes be necessary to delineate between an act or omission which is a cause from background circumstances which are non‑causal conditions, albeit necessary conditions in a strict counterfactual sense. The inquiry is limited by common sense notions of where a line has to be drawn in terms of remoteness of 'but for' regression.
The relevant act of the police officers was an omission ‑ the failure to protect the child from harm by taking the child into care and protection. Usually an omission without more, such as an obligation to act, an assumption of responsibility, commencing to exercise powers of intervention, or departure from a norm or standard,[32] is not considered to have caused harm even in cases where there is counterfactual dependence of the occurrence of that harm on that omission. Furthermore, an omission will not usually be held to be the cause of harm where another person intervenes to break the causal chain otherwise existing because of the counterfactual dependence between the harm and the earlier omission where the intervening person acts intentionally and culpably to bring about the harm.
[32] See Keown v Khan [1999] 1 VR 69 [16] (Callaway JA).
In deciding whether it appears that the action of police officers in failing to protect Charlie by taking him into protection and care contributed to his death, the court must decide whether it so appears on the basis of the material before the court.
Whether or not it appears that the action of police officers contributed to the death of Charlie is a conclusion based on primary facts about which there is no significant controversy. I find it does not appear that the action of police officers contributed to the death of Charlie.
The relevant action of the police officers was an omission ‑ the failure to protect the child from harm by taking him into care and protection. By arresting Ms Mullaley the police officers did not commence exercising their relevant powers of intervention.[33] The fact that the police officers exercised their power to arrest Ms Mullaley does not mean that they had commenced to exercise their powers in relation to the care and protection of Charlie. Furthermore, the police officers did not intervene in the care of Charlie. At no time when the police officers were at Guy Street was Charlie in the immediate care and protection of Ms Mullaley. I am not satisfied that the police officers' power to take Charlie into care and protection was enlivened. If the power was enlivened, the police officers had no obligation to exercise the power. The police officers did not assume responsibility for Charlie's care and protection and they did not intervene in relation to his care and protection. The police officers did not act contrary to any norm or standard such as the provisions of the Policy.
[33] See for example Stuart v Kirkland‑Veenstra (2009) 237 CLR 215.
On the evidence before the court, as a matter of ordinary common sense and experience as explained in March v Stramare, the failure of the police officers to take Charlie into care and protection cannot properly be regarded as contributing to the death of Charlie. The plaintiff has not demonstrated, or suggested, the likelihood of new evidence emerging in relation to what happened during the Guy Street incident. The plaintiff has not demonstrated that it appears that the action of police officers contributed to the death of Charlie.

Ground 2

Ground 2 is that the death of Charlie occurred in circumstances where it is desirable that an inquest be held pursuant to s 22(2) of the Act. Of course, the question for the court is not whether it is desirable that an inquest be held pursuant to s 22(2) but whether the court is satisfied that it is necessary or desirable in the interests of justice that an inquest be held.
In support of this ground the plaintiff says, by way of particulars, that the exact cause and circumstances surrounding the death of Charlie have not been ascertained. A number of points are made by the plaintiff in support of that particular. First, the Record has not considered the circumstances where Bell abducted Charlie, the unsuccessful requests for assistance made by Mr Mullaley to the police, nor the consequences of any delay by the police in commencing to search for the child.
The plaintiff's written and oral submissions contended that there has been no examination of the role of the police in leaving Charlie behind while taking his mother away in custody. The plaintiff's submissions are, in effect, that the matters referred to in this particular have been the subject of an investigation by the WA Police Internal Affairs Unit and the CCC, but there has been no investigation into the police officers leaving Charlie in the care of Ms McKinlay and Ms Hill and not taking him into care and protection. The matters referred to in this particular have been examined by the CCC which has released a comprehensive report on the matter. The plaintiff did not suggest that the CCC report is inaccurate or incomplete in any way except in relation to the failure of the police to take Charlie into care and protection when they attended the incident at Guy Street.
It is next said in support of this particular that the finding in the Record that Charlie was left by the police in the care of a blood relative, namely Ms Hill, is factually wrong. For the reasons I have stated earlier it is most likely that in referring to Ms Hill as a family member the coroner was referring, perhaps loosely or inaccurately, to the extended family relationship described by Ms Hill. In any event I do not consider the discrepancy, if there be one, to be significant.
Next it is said that the Record has not considered the circumstances of the death by reference to the conduct of the police, and whether such conduct was in accord with the Western Australian Police Handbook or Policy. In my opinion that is not a sufficient reason to conduct an inquest and in any event, as I have set out earlier in these reasons, the evidence does not establish that the police officers failed to comply with a policy set out in the Policy.
The second particular refers to the hours subsequent to the abduction of Charlie. As I have said earlier, these matters were the subject of investigation and a report by the CCC. There is no purpose in conducting an inquest to investigate those matters again. That was effectively conceded by senior counsel for the plaintiff in the course of the hearing of the application.
The third and fourth particulars may be considered together. The third is that it is desirable there be a consideration of any policies and procedures of the police which require police to ensure the security, safety and welfare of any child affected by an incident or located at the scene of a domestic violence attack. The fourth is that such a consideration would lead to important recommendations being made pursuant to s 25(2) of the Act in respect of:
(i)the establishment of, or the content of, or the training in respect of, or the implantation of such policies and procedures;
(ii)how police should ensure the care and safety of children at crime scenes, particularly those in the context of domestic violence;
(iii)ensuring that the best possible protection is provided to children and persons at risk of domestic violence;
(iv)the implementation of the protective provisions in the Children and Community Services Act 2004 (WA), particularly in the context of police attending incidents of domestic violence; and
(v)the treatment by police of indigenous families and victims in the context of domestic violence.
Section 25(2) provides that a coroner may comment on any matter connected with the death including public health or safety or the administration of justice. In Harmsworth v The State Coroner,[34] Nathan J stated:
The power to comment, arises as a consequence of the obligation to make findings: see s 19(2). It must be comment 'on any matter connected with the death'. The power to comment and also to make recommendations pursuant to s 21(2) are inextricably connected with, but not independent of the power to enquire into a death or fire for the purposes of making findings. They are not separate or distinct sources of power enabling a coroner to enquire for the sole dominant reasons of making comment or recommendation. It arises as a consequence of the exercise of a coroner's prime function, that is to make 'findings'.
[34] Harmsworth v The State Coroner [1989] VR 989, 996.
In Chief Commissioner of Police v Hallenstein, Hedigan J said that a coroner should not inquire into a death substantially to enable comments to be made.
The opportunity to consider the policies and procedures of the police which require police to ensure the security, safety and welfare of any child affected by an incident or located at the scene of a domestic violence attack is not a sufficient reason to order that an inquest be held. Furthermore, senior counsel for the plaintiff did not submit that the policies and procedures of the police were inadequate or needed review. Senior counsel's submissions were directed to whether or not the police officers who attended the incident at Guy Street had complied with the policies and procedures.

Inquest is not necessary or desirable in the interests of justice

Mr Howard emphasised that in order to satisfy the court that it is necessary or desirable in the interests of justice to order that an inquest be held, it is not necessary to establish that if an inquest is held the coroner would probably find that an act of members of the police force contributed to the death of Charlie. Mr Howard submitted it will be sufficient if there is a real possibility that the coroner would so find.
I have considered whether the evidence before the court establishes that it appears that an act of members of the police force contributed to the death of Charlie because that is the contention made in ground 1 of the application. I have found that it does not appear that an act of members of the police force contributed to the death of Charlie.
I am not satisfied that it is necessary or desirable in the interests of justice to order that an inquest be held.
First, an inquest is not likely to elicit new evidence. Charlie's death was investigated by the Major Crime Squad and was the subject of the trial of Bell for murder. Constables Moore and Huxley and Ms Hill gave statements in 2013 which are before the court. The other people who were present during the Guy Street incident - Ms Mullaley, Mr Mullaley, Mr Lyndon, Ms McKinlay, Ms Hannah Hannivig‑Jones and Ms Gilchrist - all gave evidence at the trial of Bell and, I assume, gave witness statements in 2013. It is apparent from the Judgment that they gave evidence of the events preceding Bell's assault of Ms Mullaley, of the assault, and of the police attendance at Guy Street. The response by the Broome Police into reports that Bell had abducted Charlie was the subject of a WA Police Internal Affairs Unit investigation. The response of the police to the report of Bell assaulting Ms Mullaley, to Bell taking Charlie, and the search for Charlie, are the subject of the CCC investigation and report. It is not likely that any new witnesses will be forthcoming or that any of those who have previously given statements of evidence will have an improved memory of what occurred more than seven years ago. It is not suggested that any relevant forensic evidence is likely to be forthcoming.
Secondly, an inquest is not likely to find new facts or clarify the facts around Charlie's death. Indeed, the plaintiff did not submit that an inquest might find new facts or clarify the facts set out in the Record and in the Judgment and CCC Report. The plaintiff seeks, in effect, for a coroner to evaluate whether those facts should lead to a characterisation of the police officers' conduct in not taking Charlie into care and protection as an act or omission which contributed to Charlie's death.
Thirdly, the function of an inquest is to find the facts around the death, not to attribute criminal or civil liability or blame for the death beyond findings necessary for the finding of 'how death occurred'. The plaintiff does not seek the finding of facts around the death, rather the plaintiff seeks, in effect, attribution of responsibility to the police officers for contributing to the death by not taking Charlie into care and protection.
Fourthly, it is not likely that a coroner would find that the failure of the police officers to protect Charlie by taking him into care and protection contributed to Charlie's death. The law does not generally hold the failure of a person to protect a second person from intentional harm caused by a third person to be causative of the harm. The police officers did not assume care of Charlie and did not, on the face of it, breach any obligation or depart from any norm or standard by not taking him into care and protection. It is not necessary for the plaintiff to establish that after an inquest a coroner would probably find that the act or omission of the police officers contributed to Charlie's death. However, the likelihood of such a finding is relevant. It is not sufficient that there is a theoretical possibility that such a finding might be made. In this case the likelihood of such a finding is not sufficient to justify the court to order than an inquest be held.
Fifthly, the facts, matters and circumstances which the plaintiff wishes a coroner to investigate at an inquest occupy about half an hour of the more than 15 hours from the time Bell assaulted Ms Mullaley to the time Bell took Charlie into the Fortescue Roadhouse and, even in relation to members of the police force, are but one of the many circumstances leading to the event of Charlie's death which might engage and occupy an inquest into the death.
Sixthly, whilst a number of events or conditions, one of which is police officers not taking Charlie into care and protection, may be hypothesised as necessary conditions leading to Charlie's death in the 'but for' sense, there is no doubt that Charlie's death was caused by injuries inflicted intentionally and culpably by Bell.[35]
[35] The CCC Report stated: 'It is important to recognise that Bell alone was responsible for Charlie's fate'.
Seventhly, that an inquest might give the coroner an opportunity to review relevant police policies and procedures and make recommendations in relation to such policies and procedures, is not a sufficient reason for ordering an inquest. The power under s 25(2) of the Act is not a freestanding power. The function of an inquest is to inquire into the death and make the s 25(1) findings. Any comments or recommendations made under s 25(2) of the Act are ancillary to that function.
Eighthly, an inquest will cause inconvenience to those required to give evidence about the Guy Street incident, and hurt and pain to some of them. Little purpose would be served by merely receiving written witness statements from 2013. The inquest would necessarily receive evidence from the witnesses to the Guy Street incident, or some of them. Further, each of the police officers who attended the scene of the Guy Street incident, and possibly the Commissioner of Police, would be entitled to be represented at the inquest having regard to the grounds on which the inquest is sought. That would involve substantial expense. That is not a sufficient reason for not ordering an inquest, but it is a further relevant consideration.
Ninthly, the death occurred more than seven years ago. It has been the subject of a coroner's investigation and the Record. It has been the subject of a Supreme Court trial for murder, a Police Internal Affairs Unit investigation, a CCC Report and consideration by the State Coroner whether an inquest should be held. Whilst finality itself is of lesser importance in coronial inquests than in court proceedings, it is nevertheless a relevant consideration.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
GG
Associate to the Honourable Justice Le Miere
22 JULY 2020