Musumeci v Attorney General of NSW

[2002] NSWSC 425

CITATION:	Musumeci v Attorney General of NSW & Anor [2002] NSWSC 425
FILE NUMBER(S):	SC 10609/2002
HEARING DATE(S):	26 April, 2002
JUDGMENT DATE:	17 May 2002
PARTIES :	Andrew Musumeci - Plaintiff Attorney General of NSW - First Defendant Mr C Milovanovich - Second Defendant
JUDGMENT OF:	Hidden J at 1

COUNSEL :	B T Stratton, QC/B Vasic - Plaintiff P Johnson SC/A Naylor - First Defendant Submitting Appearance - Second Defendant
SOLICITORS:	Dominic David Stamfords - Plaintiff I V Knight - Crown Solicitor - First Defendant Submitting Appearance - Second Defendant
CATCHWORDS:	CORONER: inquest into death by shooting - plaintiff a suspect - granted leave to appear - whether entitled to all relevant material at early stage of inquest - when question of referral to DPP under S 19 arises
LEGISLATION CITED:	Coroners Act, 1980 Justices Act 1902
CASES CITED:	Maksimovich v Walsh (1985) 4 NSWLR 318 Attorney-General v Maksimovich (1985) 4 NSWLR 300 Annetts v McCann (1990) 170 CLR 596 Reg v South London Coroner; Ex parte Thompson (The Times, 9 July 1982) Mirror Newspapers Ltd v Waller [1985] 1 NSWLR 1 at 16 Fairfax Publications Pty Ltd v Abernethy [1999] NSWSC 820
DECISION:	See para 21

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HIDDEN J

Friday, 17 May, 2002

10609/2002 – Andrew MUSUMECI v Attorney-General of NSW & Anor

REASONS FOR JUDGMENT

1 HIS HONOUR: On 18 September, 1997 Ms Pauline Gillard was shot dead at her home in Balmain. On 4 March, 2002 Mr C Milovanovich, Deputy State Coroner, opened an inquest into her death.

2 On 19 February, 2002 the Clerk of the Coroner’s Court wrote to the plaintiff, Andrew Musumeci, informing him that he was to be called as a witness at the inquest and that it might be in his interests to seek legal advice. The letter drew his attention to s 19 of the Coroners Act, which sets out the procedure to be followed if a coroner is of the opinion that the evidence at an inquest is capable of establishing that a person has committed an indictable offence. It will be necessary to examine that provision later in these reasons. Attached to the letter was a brief of evidence containing some, but not all, of the material relating to the plaintiff.

3 There is evidence before the coroner to suggest that the shooting of Ms Gillard was a tragic mistake and that the intended victim was Ms Maria Gioia. At the time Ms Gioia was living in the Balmain area in a de facto relationship with Ms Gillard’s son, and they had earlier lived in a flat in the same building as Ms Gillard. Ms Gioia was married to Neil Gioia, although they had been separated for several years at the time of the shooting. They have a daughter, and there had been an ongoing dispute between them about Mr Gioia’s access to the child.

4 The plaintiff is Mr Gioia’s cousin. There is material before the coroner to suggest that Mr Gioia enlisted the plaintiff’s aid in having Ms Gioia killed and that the plaintiff approached another man, Joseph Agostino, for that purpose. Mr Agostino was charged with conspiracy to murder Ms Gioia but that charge was later withdrawn. Mr Agostino made an induced statement to police in which he alleged that he had been approached by the plaintiff to kill Ms Gioia. He claimed that he had not done so but had put the plaintiff in touch with another man who was prepared to kill her. It appears that investigating police have no clear evidence who it was who shot Ms Gillard, and at this stage no-one is charged in respect of the shooting.

5 Some evidence has already been given at the inquest. At the outset the coroner observed that there were certain parts of the “brief” which had not been provided “to all parties”, adding that he would determine whether that material should be made available if he had occasion to consider s 19 of the Coroners Act. In the course of the evidence of the police officer in charge of the investigation, it became apparent to counsel representing the plaintiff that the sergeant assisting the coroner and the coroner himself had material relating to the plaintiff which he did not have. That matter was the subject of some discussion and two further statements, including the induced statement of Joseph Agostino to which I have referred, were supplied to counsel for the plaintiff.

6 Counsel sought access to any other material touching upon his client but the coroner declined, acknowledging that “there may be certain prejudices associated with certain people of interest” but adding, “… because of the fact that any homicide is a continuing investigation there are tactical reasons why certain witnesses are being called and certain evidence is not being fully made available to all witnesses and that’s all I am prepared to say at this stage.” The coroner again pointed out that he was mindful of the provisions of s 19, recognising that procedural fairness would require the supply of all relevant material to any person against whom action under that section might be considered. In that event, he said, that person’s legal representatives would be given every opportunity to examine the whole of the material so as to prepare the cross-examination of witnesses and, if necessary, could have witnesses who had already given evidence recalled. However, he said, that point had not yet been reached.

7 By his reference to “tactical reasons” why some material was being withheld, I take the coroner to have meant that he believed that the supply of the material at that stage might prejudice the ongoing investigation of the death of Ms Gillard.

8 It is in the light of these developments that the plaintiff has instituted proceedings in this court against the Attorney General for New South Wales. The coroner has also been joined as a defendant and he has entered a submitting appearance. In an amended summons, the plaintiff seeks declarations that the coroner erred in law in refusing to allow his counsel access to all the material relating to him which is in the possession of the coroner and/or the sergeant assisting the coroner. Other relief sought in the amended summons is no longer pressed. It is apparent from what has already been supplied to the plaintiff that there is some material which he does not have. Senior counsel for the Attorney General, Mr Johnson SC, has informed me that there is further material bearing upon the plaintiff which also has not been made available to him. The inquest stands adjourned to 20 May, 2002 to await this Court’s decision.

9 It is convenient at this stage to set out relevant portions of s 19 of the Coroners Act:

“19(1) This section applies if:
(a) …
(b) at any time during the course of an inquest or inquiry, the coroner is of the opinion that, having regard to all the evidence given up to that time:
(i) the evidence is capable of satisfying a jury beyond reasonable doubt that a known person has committed an indictable offence, and
(ii) there is a reasonable prospect that a jury would convict the known person of the indictable offence,
and the indictable offence is one in which the question whether … the known person caused the death or suspected death or the fire or explosion is in issue.
(1A) …
(1B) If this section applies to an inquest as provided by subsection (1)(b), the coroner may continue the inquest and:
(a) record under section 22 (1) the findings of the coroner or, if there is a jury, the verdict of the jury, or
(b) after taking evidence to establish the death, the identity of the deceased and the date and place of death – terminate the inquest and, if there is a jury, discharge the jury.
(1C) …
(2) The coroner is required to forward to the Director of Public Prosecutions the depositions taken at an inquest or inquiry to which this section applies together with a statement that is signed by the coroner and specifies, in the case of an inquest or inquiry referred to in subsection (1)(b), the name of the known person, and the particulars of the offence, so referred to.”

10 The coroner in the present case is sitting without a jury. Section 22 of the Act requires him to record in writing his findings about the identity of the deceased, the date and place of her death and, unless the inquest is continued or terminated under s 19, the manner and cause of her death. The power of the coroner to grant the plaintiff leave to participate in the inquest and to be legally represented, as he has done, arises from s 32. Section 33 provides that the coroner is not bound by the rules of procedure and evidence applicable to proceedings before a court of law, although that section and s 33AA effectively preserve the plaintiff’s privilege against self-incrimination.

11 Notwithstanding s 33, it is well established by authority that the rules of procedural fairness apply to an inquest: Maksimovich v Walsh (1985) 4 NSWLR 318, per Kirby P at 327 and Samuels JA at 337. The question I must determine is what those rules require in the present case. In comprehensive written submissions Mr Johnson has referred to a number of authorities dealing with the application of the rules of procedural fairness to different types of proceedings, inquiries and investigations but, as the issue before me was crystallised in argument, it is unnecessary to refer to those cases. It is common ground that, before a coroner determines that there is sufficient evidence that a person has committed an indictable offence to warrant proceeding under s 19, that person has a right to be heard on the matter. Mr Johnson acknowledged that that would entitle the person to have access to all the relevant material before the coroner, to cross examine witnesses at the inquest (and, presumably, to produce further evidence), and to address the coroner. Where the parties are at issue is at what stage the duty of the coroner arises to make all relevant material available to that person.

12 Senior counsel for the plaintiff, Mr Stratton QC, submits that in the present case that duty has already arisen, because the material which is known already to be in the possession of the coroner is such as to require him to consider proceeding under s 19 in respect of the plaintiff. That was the stance adopted by counsel appearing for the plaintiff on the opening day of the inquest. At the completion of the evidence in chief of the officer in charge of the investigation, he argued that it was incumbent upon the coroner to turn his mind to s 19 in the light of the documentary material which had then been tendered. At that stage the sergeant assisting the coroner had not yet produced the statement of Joseph Agostino, but the lengthy statement of the officer in charge detailed the inquiries he had made and set out the nature of the plaintiff’s suspected involvement in the killing of Ms Gillard. However, the coroner responded that the appropriate time for him to consider s 19 was after all the witnesses had given their evidence.

13 Mr Stratton argues that the terms of s 19 require the coroner constantly to have regard to its requirements. This is said to arise from s 19(1)(b), which provides that the section applies if “at any time during the course of an inquest” the coroner forms the opinion that, “having regard to all the evidence given up to that time”, there is sufficient evidence to warrant a person being put on trial for an indictable offence. In written submissions Mr Stratton relies upon a passage in the judgment of McHugh JA in Attorney-General v Maksimovich (1985) 4 NSWLR 300 at 316:

“The Coroner is bound to terminate the inquiry “at any time” that he forms the opinion that the evidence establishes a prima facie case. … A prima facie case depends on nothing more than a judgment that the evidence, if accepted by the tribunal of fact, is capable in law of constituting the offence under examination: May v O’Sullivan (1955) 92 CLR 654. Once the evidence is capable of establishing a prima facie case the Coroners Act 1980, s 19, prevents any further evidence being called. The judgment may be formed during the evidence in chief of a witness or during his cross-examination and before the evidence is completed. Yet the proceedings must then be terminated.”

14 However, since that decision s 19 has been amended in two significant respects. McHugh JA was dealing with a section which required a coroner to terminate an inquest if, at any time during its course, he or she formed the opinion that the evidence established a prima facie case against a known person for an indictable offence. In that event, the coroner was obliged to refer the matter to the Attorney General (later the Director of Public Prosecutions) and could continue the inquest only for the limited purpose of establishing the identity of the deceased and the date and place of death. Relevant portions of the section as it then stood are to be found in the judgment of Kirby P in the same case at pp 309-10 (bearing in mind that the Maksimovich appeals were concerned with an inquiry into a fire, rather than an inquest).

15 By the Coroners (Miscellaneous Amendments) Act 1989, the section was amended to enable a coroner who considered that there was a prima facie case against a known person for an indictable offence to continue the inquest and to receive all the available evidence, although he or she could still only record findings as to the identity of the deceased and the date and place of death. The amendment was intended to remedy difficulties exposed in Attorney General v Maksimovich. In his second reading speech the then Attorney General explained s 19 as it stood, and the purpose of the amendment, as follows:

“Under the provisions of section 19, once a coroner is of the opinion that an indictable offence may have been committed, proceedings may continue only for the limited purpose of establishing the identity of the deceased and the date and place of death or, in the case of a fire, the date and place of the fire.
Once these matters are established the coroner must terminate proceedings and refer the matter to the Director of Public Prosecutions. In practice this will mean that if, after hearing the evidence of, say, two of six witnesses, the coroner is of the opinion that a prima facie case exists, the inquest or inquiry would not be able to receive the available evidence of the other four witnesses, nor would it be available to be presented to the Director of Public Prosecutions for consideration in relation to the possible laying of charges. This goes against the whole of the rhetoric of those who are concerned with the retention of committal proceedings. Clearly this is not in the best interests of a person against whom charges may be laid. The amendment to be made to section 19 will not effect a substantive change in policy. A coroner will not be permitted to make any findings beyond those which may already be made in circumstances where a charge has been laid or a prima facie case established. It will, however, permit a coroner to continue proceedings in which he or she has formed the opinion that a prima facie case for an indictable offence exists, and to take all available evidence before recording the permitted findings and referring the papers to the Director of Public Prosecutions. Though not extending the scope of the coronial system in any way, this amendment will allow both the coroner and the Director of Public Prosecutions to obtain a more comprehensive understanding of the circumstances surrounding a death or fire.”

16 Following that amendment, it remained the case that the requirements of the section were enlivened by the coroner’s opinion that there was a prima facie case against a person for an indictable offence. By the Crimes Legislation (Further Amendment) Act 1998, the section was further amended to provide for the test now enshrined in s 19(1)(b), that the evidence is capable of satisfying a jury beyond reasonable doubt that a known person has committed an indictable offence and there is a reasonable prospect that a jury would convict that person of that offence. This is the same as the test for committal for trial under s 41 of the Justices Act 1902.

17 The extract from the Attorney’s second reading speech for the 1989 amendment which I have quoted demonstrated the desirability of the coroner receiving all relevant evidence before terminating an inquest, even though he or she had found a prima facie case of the commission of an indictable offence established. The more is this so now that the section is invoked not by the finding of a bare prima facie case, but by the more expansive test to which I have referred. The section envisages that a coroner might terminate an inquest before the completion of the evidence if a point is reached at which he or she considers the conditions of subsection 1(b) to be satisfied, but it permits the coroner to receive the remainder of the evidence notwithstanding that fact. Clearly, it is now open to a coroner to defer any decision under the section until all the evidence is in.

18 On what I know of the evidence in the present case there may well be a prima facie case against the plaintiff, but whether it is such as to meet the test set out in s 19 1(b) is quite another matter. Questions of the credibility of witnesses may be important, and I can see every reason why the coroner should not consider any determination under the section until he has heard further evidence or, maybe, the whole of it. As he foreshadowed, should the matter arise, procedural fairness would be met by the provision of all relevant material to the plaintiff at some later stage, together with the opportunity for his counsel to have witnesses recalled, if necessary. I am mindful of the forensic disadvantage which the plaintiff might suffer from that course. In his written submissions Mr Stratton refers to the desirability of a cross-examiner being able to frame questions with knowledge of the entirety of the evidence and, in particular, being aware of what other evidence is available either to support or to contradict the testimony of the witness to whom the cross examination is directed. He adds that the process of recalling witnesses is “cumbersome, ineffective and unfair.”

19 These may be telling considerations in adversarial proceedings in a court of law, but an inquest cannot be characterised in that way. In Reg v South London Coroner; Ex parte Thompson (The Times, 9 July 1982) Lord Lane CJ said:

“Once again it should not be forgotten that an inquest is a fact finding exercise and not a method of apportioning guilt. The procedure and rules of evidence which are suitable for one are unsuitable for the other. In an inquest it should never be forgotten that there are no parties, there is no indictment, there is no prosecution, there is no defence, there is no trial, simply an attempt to establish facts. It is an inquisitorial process, a process of investigation quite unlike a trial where the prosecutor accuses and the accused defends, the judge holding the balance or the ring whichever metaphor one chooses to use.”

That passage has been cited in a number of Australian authorities: see, for example, Annetts v McCann (1990) 170 CLR 596, per Toohey J at 616.

20 Mr Stratton accepts that a person granted leave to appear at an inquest is not necessarily entitled at the outset to the whole of the brief which has been prepared for the coroner, although Mr Johnson, for his part, acknowledges that in many cases that would be done as it would facilitate the efficient conduct of the inquest. However, I accept Mr Johnson’s further submission that it is open to a coroner, in the interests of the integrity of the investigation of a death, to withhold material from such a person unless and until the rules of procedural fairness dictate its disclosure. To do so is consistent with what Hunt J (as he then was) described in Mirror Newspapers Ltd v Waller [1985] 1 NSWLR 1 at 16 as “the coroner’s residual investigatory function”. It is true that that function is not as prominent as it once was. In Fairfax Publications Pty Ltd v Abernethy [1999] NSWSC 820, Adams J observed (at para 8) that the Coroners Act “does not give the coroner any jurisdiction to conduct an investigation, as such.” However, his Honour added that, as an incident to the statutory jurisdiction to conduct an inquest, “there can be no doubt that the coroner has a power to investigate and to request others to make relevant investigations.” Indeed, one of the functions conferred upon the State Coroner by s 4D of the Act is to ensure that all deaths are properly investigated and s 17B enables the State Coroner to give directions to a coroner and to a member of the police force about investigations to be carried out for the purposes of an inquest.

21 It follows that I am not persuaded that the rules of procedural fairness require the disclosure to the plaintiff of all material relating to him at this stage of the inquest. The coroner has not been shown to have erred in law in adopting the course he has and, accordingly, the plaintiff’s summons must be dismissed. If necessary, I shall hear the parties on costs.

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Last Modified: 05/22/2002