Nona and Anor v Barnes and Anor

[2013] HCATrans 242

[2013] HCATrans 242

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B76 of 2012

B e t w e e n -

GEORGE NONA

First Applicant

LILY‑ANNIE AHMAT

Second Applicant

and

MICHAEL BARNES

First Respondent

ATTORNEY‑GENERAL FOR THE STATE OF QUEENSLAND

Second Respondent

Application for special leave to appeal

FRENCH CJ
GAGELER J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON FRIDAY, 11 OCTOBER 2013, AT 12.20 PM

Copyright in the High Court of Australia

MR P.J. DAVIS, SC:   If it pleases the Court, I appear with my learned friend, MR A.D. SCOTT, for the applicants.  (instructed by Bottoms English Lawyers)

MR DAVIS:   There is a submitting appearance for the first respondent. 

MR M.D. HINSON, QC:   If the Court pleases, I appear with my learned friend, MR S.A. McLEOD, for the second respondent.  (instructed by Crown Law (Qld))

FRENCH CJ:   Thank you, Mr Davis.

MR DAVIS:   Your Honours, there are two central issues raised by the application. The first is whether there was a reviewable decision made by the coroner, and the second is if there was a decision, does section 31 in Schedule 2 of the Judicial Review Act 1991 (Qld) operate so that no statement of reasons is required.

We can turn to the first matter first. This application can only succeed if the decision was a reviewable decision, we accept that, and that is only arguable if the formation of the reasonable suspicion under section 48 of the Coroners Act is itself a decision.  Can we take your Honours to that section?  Your Honours, before we make submissions about the section itself, we should make some submissions about the general structure of the Coroners Act.  The Coroners Act provides, in section 11, that deaths are to be investigated – not all deaths ‑ ‑ ‑

FRENCH CJ:   Now, this is in a combined list of materials, I think.  Which tab should we be looking at?

MR DAVIS:   Yes.  It is in document number 2 in the legislation.

FRENCH CJ:   Thank you.  This is the Coroners Act 2003?

MR DAVIS:   Yes, and I am sorry, there is not section 11 in the bundle, but section 11 provides that deaths are to be investigated, and then there is a set of considerations as to what types of deaths are to be investigated.  Then by section 45, which is in the bundle, there are coroners’ findings.  The coroner’s findings proscribed by section 45(2) effectively dictate the investigation in the sense that the coroner’s function is, if possible, to make the findings under 45(2), and therefore his or her investigation leads to that.

The next section, which is not in the bundle but it is 46, just deals with coroners’ comments, so the coroner may make comments about particular deaths so that policy effectively can be formed for any amendments to the law. Then 48 is the one in question in this appeal and it relates to “Reporting offences or misconduct”, and critically is section 48(2):

If, from information obtained while investigating a death, a coroner reasonably suspects a person has committed an offence, the coroner must give the information –

Now, we accept that the sending of information to the Director of Public Prosecutions does not relevantly affect the rights of the person suspected of committing the offence.  Similarly, perhaps obviously, the decision not to send the information to the Director of Public Prosecutions does not affect the rights of the persons who may possibly have been suspected of committing an offence.

FRENCH CJ:   Because there is no statutory consequence attaching to the transmission of that information?  The Director has no obligation to deal with it in a particular way?

MR DAVIS:   No, your Honour.  Under the Director of Public Prosecutions Act 1984, the Director has powers and also has general duties and there are objects of that Act. But beyond the general notion that the Director of Public Prosecutions is to fulfil his office properly, there is no specific provision which says that he must or must not do something with the information that is sent to him pursuant to section 48 of the Coroners Act.  Now, the Court of Appeal categorised the decision in a particular way and that can be seen at application book page 25, if it please your Honours.  If your Honours could please look at paragraphs [19] and [20], what the Court of Appeal determined was that the relevant decision:

was the decision to not send information to the Director of Public Prosecutions –

and that decision –

was made only when the omission to send the information was manifested as a decision in correspondence from the Coroner to the appellants’ solicitor.

Now, in our submission, when one looks at section 48, and remembering that section 48 sits in a part of the Coroners Act which deals with, in effect, the consequences of an investigation, so there are powers in the Act which deal with investigations and then there are findings section 45, comments 46, further comments 47 and then reporting 48.  So our submission is that the relevant decision is to form the suspicion.  What that then does is affect the legal rights of the coroner, or the legal obligations of the coroner, because once the coroner makes the decision, namely, the reasonable – forms the reasonable suspicion, he is then obliged to give the information to the Director of Public Prosecutions.

GAGELER J:   How do you distinguish this case from Bond’s Case?

MR DAVIS:   Well, in Bond there was a decision, and the decision was the formation of the appropriateness of Mr Bond to hold the licence, and then from there certain things followed.  So, in our submission, the real issue is whether the decision is only made once it is manifested in some way or whether the decision is made once the coroner forms a reasonable suspicion. 

Now, in our submission, the decision is the formation of the reasonable suspicion.  That then obliges him to then give the information to the Director of Public Prosecutions.  The latter which was sent by the coroner ultimately to the parties, we submit is just evidence of the making of the decision, and the decision is the formation of the reasonable suspicion.  Now, if that is so, then both limbs of Griffith University v Tang have been met because firstly, the relevant decision is authorised by the statute and secondly, legal rights have been affected, being the rights of the coroner, in that an obligation has arisen to provide the information to the Director of Public Prosecutions. 

The Court of Appeal dealt with this aspect at paragraphs [11] and [12] of the judgment. The point in the Court of Appeal was that there was no determination and therefore no decision because the coroner remained free to consider the question. Now, in our submission, that is an error because section 48 when properly construed, in our submission, means that the obligation to consider this issue, namely the reasonable suspicion, arises at the conclusion of the investigation.

We submit that as a matter of construction it must mean that because, firstly, that is consistent with the sections that precede it, the motion that the investigation completes and there is steps taken.  But also, it could not possibly be that the coroner could form a reasonable suspicion until he had heard all the evidence that he was going to hear in investigating the death, pursuant to section 11.  He could not, for instance, form a reasonable suspicion that a person had committed an offence if he knew that some further evidence was likely to come along which could bear upon that issue.

So it is not a case that the coroner as an open‑ended roving mission.   The coroner must investigate and the coroner must make findings and then do the other things under section 47 and 48.  There are a number of decisions which we will not take the Court to but we will simply mention them – they are dealt with in our outline – which are authority for the proposition that as a matter of law the finding of a jurisdictional fact, and we would submit that for all intents and purposes that is what the finding of the reasonable suspicion is. 

The finding of the jurisdictional fact which then gives rise to either an obligation or for that matter a discretion, can itself be a decision.  Minister for Immigration and Multicultural Affairs v Eshetu is in the bundle, Mayer and indeed, Griffith University v Tang and Bond are all authority for that proposition.  There are a number of decisions cited by our learned friends as authority for the proposition that there is no decision until there is an announcement or a manifestation of it.  Those cases are all in the bundle.  They are Attorney General (Cth) v Queensland, Evans v Friemann, Legal Aid Commission of Western Australia v Edwards.  We will take your Honours to Evans v Friemann which is at tab 10 of the joint bundle.

The statement of principle relied upon by our learned friends for the respondents is at page 233.  Now, that refers back to page 232 where there is a definition of “conduct engaged in for the purpose of making a decision”.  That is in section 3 of the Act, and then at page 233 in the third last paragraph, Acting Chief Justice Fox makes this remark - his Honour said:

The list in s. 3(2) seems to place emphasis on the manifestation, that is, on the conduct from which the making of a “decision” will be presumed.

That is the passage that is cited against us, but the very next line is:

In this sense the subsection could be said to be largely evidentiary in effect.

So the decision is made upon the formation of the relevant reasonable suspicion and what occurs thereafter is just evidence. That is all we wish to say on the first point. The second point is as to the construction of section 31 and item 1 in Schedule 2 of the Judicial Review Act.

FRENCH CJ:   Except that the notion of “relating to” has some elasticity about it.

MR DAVIS:   Yes, your Honour, yes, we accept that. Could we take your Honours to the schedule perhaps. All that section 31 does is to apply Part 4 to certain decisions and then Part 4 provides that reasons must be given if requested in relation to certain decisions. Schedule 2 is the list of

decisions where reasons are not required to be given. Item 1 in Schedule 2 is a little odd but:

Decisions relating to the administration of criminal justice, and, in particular –

and then there are a list of circumstances.  It is common ground that the term “decisions relating to the administration of criminal justice” is not limited or restricted in any way by the sub‑paragraphs that follow.  However, our submission is that the sub‑paragraphs are, indeed, limited by the words “decisions relating to the administration of criminal justice”.  They must be because otherwise item 1(d):

the production of documents or things –

et cetera, would not relate just to “decisions relating to the administration of criminal justice” and that must be what is intended.

FRENCH CJ:   Here you have a public officer who has undertaken an investigative process – that is the coronial inquiry – required if he or she forms the requisite state of mind about the commission of an offence to pass that information to the Director of Public Prosecutions in the case of an indictable offence, which can only be for the purpose of consideration for possible prosecution, can it not, or perhaps referral for further investigation by other authorities?

MR DAVIS:   We would concede that, your Honour, yes.

FRENCH CJ:   Well, the decision to pass the information to the DPP, how is that not a decision in relation to the investigation or prosecution of persons?

MR DAVIS:   Our submission is that the coroner plays no part in the investigation or prosecution of persons.  The question then is whether “in relation to” is wide enough in its terminology to catch the situation.  We submit that it is not and our submission is that the investigation or prosecution is something for the Director of Public Prosecution and the police.  It may or may not come to fruition.  It may be abandoned.  It is just simply a preliminary step which, in our submission, may lead to investigation or prosecution.  Your Honour, they are the submissions we wish to make orally.  We rely upon our written outline.

FRENCH CJ:   Yes, thank you very much, Mr Davis.  We will not need to trouble you, Mr Hinson.

The applicant, whose brother was among a number of people who drowned in a boating accident in the Torres Strait, sought reasons pursuant to the Judicial Review Act 1991 (Qld) for the coroner’s conclusion, notified to the applicant’s solicitors in 2011, that there was no basis on which he should refer information obtained during his investigation into the deaths of the applicant’s brother and others to the Director of Public Prosecutions. Section 48(2) of the Coroners Act 2003 (Qld) requires that if, from information obtained while investigating a death, the coroner reasonably suspects a person has committed an indictable offence the coroner must give the information to the Director of Public Prosecutions.

The Court of Appeal held that there had been no decision “under an enactment” for which reasons could be required and, if there were such a decision, it would be a decision relating to the administration of criminal justice within the meaning of Schedule 2, item 1 of the Judicial Review Act and therefore not a decision in respect of which reasons could be required.  It is sufficient to say that if, contrary to the primary conclusion of the Court of Appeal, either or both the coroner’s antecedent state of mind and refusal to refer information to the Director of Public Prosecutions were a decision under the Coroners Act, each was a decision relating to the administration of criminal justice within the meaning of item 1 in Schedule 2 to the Judicial Review Act.  For that reason, this is not a suitable vehicle for the grant of special leave.  Special leave will be refused with costs.

AT 12.41 PM THE MATTER WAS CONCLUDED