Perre v Chivell

PERRE v CHIVELL
[2000] SASC 279

Nyland J

These proceedings arise out of a coronial inquiry held with respect to the death of Geoffrey Leigh Bowen, a sergeant of police. Sergeant Bowen lost his life on 2 March 1994, when an explosion occurred at the office of the National Crime Authority, situated in the Commonwealth Public Service Credit Union building, Waymouth Street, Adelaide, South Australia.
The jurisdiction of the coroner to conduct such an inquiry is contained in s 12 of the Coroners Act 1975, as amended (“the Act”). Section 12(1)(a) empowers the coroner to hold an inquest in order to ascertain the cause or circumstances of “the death of any person by violent, unusual or unknown cause”. The powers and obligations of the coroner and matters relevant to the proceedings are to be found within ss 13 to 28A inclusive of the Act. Those provisions include the following:

The coroner may, by summons, require attendance at the inquest of any person [s 16(1)(a)].

The coroner may require a person to answer any relevant questions [s 16(1)(e)].

A person is not obliged to answer a question if the coroner is satisfied that the answer would tend to incriminate that person [s 16(2)].

The inquest is to be held by the coroner without a jury [s 19].

A person with sufficient interest in the subject or result of the inquest is entitled to appear personally or by counsel and may examine and cross-examine any witness testifying in the inquest [s 21(1) and (2)].

The coroner must act according to equity, good conscience and substantial merits of the case without regard to technicalities and legal forms and is not bound by the rules of evidence but inform himself or herself on any matter in such manner as he or she thinks fit [s 22].

A coroner must, as soon as practicable, after the completion of an inquest give his or her finding by writing in the prescribed form setting out as far as has been ascertained the cause and circumstances of the event that was the subject of the inquest [s 25(1)]

A coroner must not proceed with an inquest where a person has been charged in criminal proceedings with causing the event that is, or is to be, the subject of an inquest, unless the Attorney-General directs the coroner to do so [s 26(1)]

A coroner holding an inquest must not in the inquest make any finding, or suggestion, or criminal or civil liability [s 26(3)].

Section 28A enables the Attorney-General, or a person who has a sufficient interest in the finding made at an inquest, to make an application to the Supreme Court, for an order that a coroner’s finding be set aside.
Section 28A(3) provides:
“(3).. A finding will not be set aside under this section unless the Supreme Court is of the opinion -
(a).... that the finding is against the evidence or the weight of the evidence adduced before the coroner; or
(b) that it is desirable that the finding be set aside -
(i).... because an irregularity has occurred in the proceedings or insufficient inquiry has been made; or
(ii) because of new evidence.”
Section 28A(4) provides:
“(4).. Where an application is made for an order setting aside a finding made at an inquest, the Supreme Court may (in addition to, or instead of, making such an order) -
(a)... order that the inquest be re-opened, or that a fresh inquest be held;
(b)... substitute any finding that appears justified;
(c)... make such incidental or ancillary orders as it considers necessary or desirable in the circumstances of the case.”
In this case, the coroner delivered his “finding” on 17 September 1999. This is recorded in a document numbering 96 pages. A table of contents at the beginning of the document under the heading “Findings” has the following main subject headings:
“1.     Introduction.
2.     Scope of inquest.
3.     Standard of proof.
4.     The events of 2 March 1994
5.     Cause of death.
6.     Security at the NCA Office.
7.     Background.
8.     The investigation.
9.     Information leading to the arrest of Domenic Perre.
10.     Allan Chamberlain’s credibility.
11.     Findings.”
In the preamble appearing on page 1, the coroner said:
“I, the said Coroner, do find that Geoffrey Leigh Bowen, aged 36 years, died at Adelaide on the 2nd day of March, 1994 as a result of haemorrhage due to blast injuries to the upper and lower limbs.”
He went on to say:
“I find that the circumstances of his death were as follows:- ...”
Thereafter follows a lengthy discussion of each of the topics referred to in the table of contents. Paragraph 11 of that document purports to record the coroner’s “Findings” in the following terms:
“11.1...... Having regard to my conclusions about Allan Chamberlain, and accepting the truthfulness of his evidence, as I have done, in my opinion the primary suspicion must be that Domenic Perre was responsible for the sending of the bomb to Sergeant Bowen at the NCA office in early March 1994. In summary, the evidence which points in this direction is as follows:
...(Thereafter appear 19 dot point references to the evidence which I do not for present purposes need to include.)
11.2...... I have given anxious consideration to the finding I should make in view of this evidence. I have paid close regard to the standard of proof required to make a finding in these circumstances, as described in Briginshaw and G v H (supra). I am particularly aware that some of the evidence before me might not be admissible in a criminal court. Some unfairness or illegality, which has not been ventilated in my court, may affect its admissibility. I can do nothing about that. The evidence is before me, and I have been as rigorous and selective in my consideration of it as the circumstances would allow.
11.3...... In the final analysis, however, the evidence, and the inferences that may be drawn from it, have not been answered by Mr Perre. In those circumstances the words of the High Court in Wessensteiner (supra) bear repeating:-
‘It is because doubts about the reliability of witnesses, or about references to be drawn from the evidence may be more readily discounted in the absence of contradictory evidence from a party who might be expected to give or call it.’
11.4........ In my opinion, however, the only reasonable inference to be drawn from the evidence is that Dominic (sic) Perre was responsible, in the sense that he constructed the bomb, and either posted it or arranged for someone else to post it on his behalf to Detective Sergeant Bowen.
11.5From all the evidence, I am unable to find whether Perre acted alone or in concert with another person or persons.
11.6........ Accordingly, I find, pursuant to Section 25(1) of the Coroners Act (1975), that the circumstances of the death of Detective Sergeant Geoffrey Leigh Bowen were that he died when he opened a parcel bomb, sent to him by Domenic Perre, and the bomb exploded in his hands.” (emphasis added)
In an application by summons dated 14 October 1999, Domenic Perre, as plaintiff (“Perre”), sought a review of the finding of the coroner. The review is pursuant to s 28A of the Act as amended and in the alternative by way of judicial review pursuant to Rule 98.01 of the Supreme Court Rules. The application was amended pursuant to leave granted by a master of the court on 12 November 1999. The orders sought in the amended summons are as follows:
“1.... In the nature of review seeking an order the Coroner’s findings be set aside pursuant to section 28A of the Coroner’s Act 1975 as amended, in that:
1.1 That the finding is against the weight of the evidence;
1.2.... That the finding be set aside because an irregularity has occurred in the proceeding.
In the alternative:
2..... A declaration that the Coroner is not permitted to make findings which are contrary to section 26(3) of the Coroner[s] Act 1975 as amended which holds that ‘a Coroner holding an inquest must not in the inquest make any finding or suggestion of criminal or civil liability’.
3..... In the nature of prohibition preventing the defendant whether by himself, his agents, servants or otherwise from releasing his findings.
4..... A declaration that the defendant unlawfully relied upon the High Court ruling in Weissensteiner to make his findings, notwithstanding that the plaintiff had exercised his privilege against self incrimination.
5..... Further relief is sought in the form of certiorari quashing the findings of the Honourable Coroner into the Inquest of the death of Geoffrey Leigh Bowen as they relate to Domenic Perre.”
On 19 June 2000, I gave leave to Jane Caroline Sutton (formerly known as Bowen), the widow of Geoffrey Bowen, to intervene and be heard at the hearing of the review. On the hearing of the review, Mr Caldicott appeared on behalf of Perre. Mr Illingworth appeared on behalf of the coroner, and Mrs Sutton was represented by Mr Quigley.
At the commencement of the hearing, Mr Caldicott indicated that he was abandoning the orders sought in paras 1.1 and 3 of the amended summons. This in effect left two matters for determination by this review. First, whether or not the coroner had acted ultra vires in that he had made findings or suggestions of criminal liability against Domenic Perre. Secondly, whether an irregularity had occurred by reason of the coroner’s reliance on the decision in Weisssensteiner v R (1993) 178 CLR 217 in reaching his conclusions. Those parts of the findings of the coroner which are the subject of complaint by Domenic Perre are those portions of para 11 appearing in bold (supra).
There was, however, an argument in the course of the hearing as to which part of the document produced by the coroner represented his finding(s) for the purposes of the application of s 26(3). Mr Illingworth submitted that the only finding made by the coroner, (and therefore subject to judicial review) as to the circumstances of Sergeant Bowen’s death was that appearing in para 11.6. The rest of the document, including paras 11.1 - 11.5 merely identified the evidentiary material taken at the inquest and the reasoning of the coroner which ultimately led to the finding in 11.6. In resolving this matter therefore I should only be concerned with the finding contained in para 11.6.
Section 25(1) of the Act requires the coroner to give “his or her finding by writing in the prescribed form, setting out as far as has been ascertained the cause and circumstances of the event that was the subject of inquest”. Section 28A is headed “Application to set aside findings made at inquest”. Section 28A(1) then empowers the Supreme Court on application by the Attorney-General or a person with sufficient interest in the finding to set aside “a coroner’s finding”. Section 28A(2) refers to “the coroner’s finding”. Section 28A(3) provides that “a finding will not be set aside ... unless ... the finding is against ... the weight of evidence ... or an irregularity has occurred”.
The document published by the coroner is lengthy and references to “findings” are liberally scattered throughout it. The document itself is published under the title “Finding of Inquest”. Much of that document consists of a resume of the evidence called before the coroner and includes some factual findings and findings as to credibility of witnesses, upon which the ultimate conclusion is based. Paragraph 11 is headed “Findings” but some parts of it are clearly not findings (eg 11.2) and the dot point references in 11.1 consist of a summary of evidentiary matters leading to the final conclusion in para 11.6.
Furthermore, the prohibition in s. 26(3) against a determination by the coroner of criminal or civil liability is not limited to a finding. It relates to “any finding or suggestion” to that effect. The shorter Oxford English dictionary defines “suggestion” (inter alia) as “an indication of the presence or existence (of something); a hint, an inkling”. This is discussed in more detail in para 58 (infra), but in my view, the fact that the word “suggestion” is used disjunctively indicates that Parliament intended strictly to curtail the power of the coroner to make any statement or comment which is determinative of civil or criminal liability.
In my opinion, therefore, it is appropriate to consider the argument presented on behalf of Perre with respect to each of the impugned statements in 11.1, 11.4, 11.5 and 11.6, as referred to in para 9 hereof and, if appropriate, apply the provisions of s 26(3) thereto.
I now turn to the two issues upon which Perre relies in seeking orders to set aside or quash the findings made by the coroner.

Coroners Act 1975 s 26

Section 26 of the Act currently provides as follows:
“(1).. A coroner must not proceed with an inquest where a person has been charged in criminal proceedings with causing the event that is, or is to be, the subject of an inquest, unless the Attorney-General directs the coroner to do so.
(2) (repealed)
(3).. A coroner holding an inquest must not in the inquest make any finding, or suggestion, of criminal or civil liability.”
In this case, the argument was directed to the issue of criminal liability, and I therefore confine my reasons to that issue. In considering this matter, it is helpful to have some regard to the legislative history of s 26. In so doing it is worth reflecting on the role of the coroner in the context of the historical development of that office.

History of the Coroner’s Criminal Jurisdiction

The office of the coroner dates back to the Middle Ages, with the first undoubted reference to “coroners” appearing in the Articles of Eyre in 1194. It is generally recognised that the Chief Justiciar of the time, Hubert Walter, created the office as a means of safeguarding the important revenue generated by the execution of justice. The role of the coroner was described as to “keep the pleas of the Crown” which essentially means that the coroner maintained records of all criminal matters. These records could then be used to determine the amount of money that the local community owed by way of fines.
Hence the office of the coroner was, from its beginning, closely associated with the administration of criminal law. Over time, the coroner came to perform many important functions in addition to keeping the rolls, including abjuration of the realm, private appeals and outlawry. However the primary interest of the coroner was then, as now, the investigation of violent or sudden deaths. The coroner travelled to the location of the corpse and would summon a jury of adult men from the four nearest townships. The jury would determine the cause of death, and, if a person was suspected of homicide, the jury named him and the coroner had power to commit him to gaol to await trial.
The coroner thus became the principal agent of investigation of crime, particularly homicide. In the early life of the coroner’s office, however, this investigation was less concerned with preventing future crime or punishing offenders than with collecting the valuable incidents which arose from deaths, such as fines (murdrum) and proceeds from the sale of the object which caused the death (deodands). It should be borne in mind that although the coroner investigated crimes and had the power of committal, he was not, in any sense, a judicial figure. Chapter 24 of the Magna Carta protected royal authority, stating “that no sheriff, constable, coroner or other of our bailiffs shall hold pleas of our crown”, meaning that they were not to be criminal judges.
Modern coronership developed in Britain and Australia from the mid-nineteenth century, one of the developments being an increase in the calling of medical evidence. The coroner’s office now is much different to its early form. Today the emphasis is upon making recommendations to help prevent injury and death as well as providing accurate statistical information as to causes of death. It is fair to say, however, that, throughout the evolution of modern coronership and coronial law, there has remained a tension between the coroners duties of investigation into death and its causes as opposed to the criminal prosecution of those who cause death. This tension is reflected in changes in legislation which have occurred in South Australia since the first partial codification of coronial law in 1850.
Two main areas of concern for legislators have been the power of the coroner to commit a person for trial and the power of the coroner to make a finding of criminal or civil liability. The power to commit a person for trial was first expressed in Act No 7 of 1850 (“To Regulate the Office of Coroner in South Australia”) which stated:
“XV.. And be it Enacted, That if any person shall be deemed guilty of having caused, or of having been accessory or instrumental to, the death of the deceased, such person, if present, shall be arrested and committed by the Coroner to safe custody, to be delivered over to the keeper of the nearest Gaol.”
The next consolidation of coronial law occurred in The Coroners Act 1884. Section 22 of that Act empowered the coroner to arrest and commit “[e]very person who, by an inquisition taken before any coroner, shall be indicted for murder or manslaughter, or as an accessory to murder before the fact, or with having wilfully set on fire any building or other property”.
Section 22 of the Coroners Act 1935, again gave the coroner the power to commit a person for trial. However, this act differed from those which preceded it as it contained specific provisions about the findings which had to be made by the coroner. Section 19 required the coroner to set forth who the deceased was; how, when, and where the deceased came by his death; and, under s 19(b)(iii), “if he came by his death by murder or manslaughter or negligent driving of a motor vehicle the persons, if any, found to have been guilty of that offence.” Thus the power to commit under s 22 related to any person who was charged with the commission of any offence by the coroner’s inquisition.
In the United Kingdom in 1936 a British Home Office interdepartmental committee on coroners (the “Wright Committee”) presented a report which recommended the retention of the office of the coroner, but advised that its powers should be limited to investigations of the circumstances surrounding a death. Questions of civil and criminal liability should not be considered, nor should there be power to commit for trial. The recommendations of the Wright Committee were not, however, adopted into legislation, probably due to the intervention of the second World War. As it happened, in South Australia in about 1952, the City Coroner made similar recommendations to those of the Wright Committee.
At that time, several arguments were made in favour of abolishing the coroner’s “criminal jurisdiction”. It was noted that the laws of evidence were not strictly observed in the coroner’s court, thus a coroner’s finding of guilt or a decision to commit a person for trial might be based on evidence which would not normally be admissible in a court of law. Furthermore, in a coroner’s court, a person could be placed in the position of being committed for trial, and in effect be declared guilty without having received any prior notice of any charge against him or her. These concerns led to the passing of the Coroners Act Amendment Act 1952 which removed s 19(b)(iii) of the Coroners Act 1935 (supra) and inserted a number of new provisions. These included s 20a which required the coroner to adjourn an inquest when a person was charged with an offence relating to the death in question, and s 20c which prohibited the coroner from committing any person for trial. Importantly, s 20b of this Act stated:
“20b.A coroner shall not make any finding upon an inquest that any person is guilty of any offence in connection with the fire or death which is the subject of the inquest.” (emphasis added)
The Coroners Act was further amended in 1969, but none of the amendments made at that time is relevant to the present discussion.
In 1975, the three preceding Acts were repealed by the Coroners Act 1975. Section 26(2) of this Act reinstated the coroner’s power to commit a person for trial. Section 26(3) was, however, then included substantially in its present form.

It is curious that the power to commit was at that time returned to the Coroner and there is little to be gleaned from the second reading speeches of the Legislative Council as to why that occurred. The only reason that appears (Hansard 12 March 1975, p 2809) is that it would be more convenient for the coroner to commit a person for trial when it is apparent, by the end of the inquest, that a charge should be made, rather than having to conduct committal proceedings covering the same grounds. It was suggested that, in any case, the coroner would rarely use such a power (at p 2810). It is also not clear from the debates why s 26(3) was worded so as to prohibit any finding, or suggestion, of criminal or civil liability rather than the previous version which simply prohibited a finding that a person is “guilty of any offence”.
All that the Attorney General (as he then was) the Hon L J King said, was as follows (Hansard 19 February 1975, p 2448):
“Clause 26 continues in operation, substantially, the present law in this State in that the coroner is not required or indeed permitted to make findings suggesting civil or criminal liability on the part of any person.”
Further amendments to s 26 occurred in 1981 and 1990. The Coroners Act Amendment Act 1981 repealed s 26(2), once again removing the coroner’s power to commit a person for trial. On this occasion, the Attorney General, the Hon K T Griffin said in the course of the second reading speech (Hansard 17 September 1981, p 973):
“Concern has been expressed about the power of a coroner to commit a person for trial at the conclusion of a coronial inquest. That power was included in 1975, but is now recognised to be inappropriate having regard to the procedures and methods of inquiry in a coronial inquest and those which apply in a normal preliminary examination. The Bill therefore proposes amendments which remove the power of a coroner to commit for trial.”
The prohibition against findings of criminal or civil liability in s 26(3) remained. Finally, the Coroners Act Amendment Act 1990 further amended s 26(3) by substituting the word “must” for “shall”. This amendment appears to have been directed at removing the use of the outdated word “shall” from this and other Statutes rather than strengthening the prohibition in the section and does not therefore assist in resolving the present issue.
Over the years therefore there have been changing views about the desirable extent of the coroner’s criminal jurisdiction. The debate tends to arise because “[d]eterminations of culpability are an inevitable corollary to the process in which findings of causation are made” (Halsbury’s Laws of Australia Vol 20, p 84). Nevertheless, the general trend has been towards restricting the coroner’s criminal jurisdiction so as to prohibit findings of guilt and the committal of persons for trial. The trend in South Australia has been largely mirrored by legislation in the other States and Territories of Australia.

Other legislation

For example, s 25(5) of the Coroners Act 1996 (Western Australia) provides:
“(5). A coroner must not frame a finding or comment in such a way as to appear to determine any question of civil liability or to suggest that any person is guilty of any offence.”
Section 22(3) of the Coroners Act 1980 (New South Wales) provides;
“(3)... Any record made under the provisions of subsection (1) or (2) shall not indicate or in any way suggest that an offence has been committed by any person.”
Section 43(6) of the Coroners Act 1958 (Queensland) provides:
“(6)... No finding of the coroner may be framed in such a way as to appear to determine any question of civil liability or as to suggest that any particular person is found guilty of any indictable or simple offence.”
Section 34(3) of the Coroners Act 1993 (Northern Territory) provides:
“(3)... A coroner shall not, in an investigation, include in a finding or comment a statement that a person is or may be guilty of an offence.”
Section 19(3) of the Coroners Act 1985 (Victoria) provides:
“(3). A coroner must not include in a finding or comment any statement that a person is or may be guilty of an offence.”
Section 45(3) of the Coroners Act 1995 (Tasmania) provides:
“(3). A coroner must not include in a finding or comment any statement that a person is or may be guilty of an offence.”
The Coroners Act 1997 (Australian Capital Territory) is in slightly different terms. Section 55 precludes the coroner from making a comment adverse to a person identifiable from the finding or report unless he or she has, prior to the making of the finding or report, taken all reasonable steps to give the person a copy of the proposed comment together with a written notice and an opportunity to make submissions with respect to it. Section 58 sets out the procedure to be followed by the coroner where he or she has reasonable grounds for believing, as a result of the evidence given at the inquest, that a person has committed an indictable offence.
It is important to note, however, that the Victorian and Tasmanian Acts (and also earlier ACT legislation) include a further provision which requires the coroner to find, if possible, the identity of any person who contributed to the cause of death.
The problem of reconciling the prohibition against making a finding or comment that a person may be guilty of an offence (s 19(3) of the Victorian Act) with the obligation to find, if possible, the identity of any person who contributed to the cause of death (s 19(1)(e) of the Victorian Act) has been the subject of some debate in Victoria and it is useful to consider that debate in determining the issues which arise in this case. As happened in South Australia, the coronial legislation in Victoria was the subject of review on a number of occasions. In Victoria, in 1958, the review was carried out by Sir John Norris QC (the Norris Report). Further reform took place in 1985 which resulted in the enactment of the present Victorian Act. Much of the Act is however based on the Norris Report. The Norris Report recommended (Norris, The Coroners Act 1958: A General Review (1980), Recommendation 30) “that the coroner should not make any statement of legal responsibility or express any conclusion of law” as Norris considered that the determination of legal responsibility did not assist the coroner’s primary function of establishing the cause of death.
Consistent with this recommendation the coroner’s power to commit for trial was removed from the Act. The Norris Report did not recommend the inclusion of a provision requiring the coroner to identify the person who had contributed to a death but suggested that if it was apparent from the facts that fault could be attributed to a person the coroner should publicly announce in neutral terms that the matter was being referred to the appropriate authority for further action. Nevertheless, Parliament thereafter included the requirement for the coroner to ascertain the identity of the contributor to the cause of death. The reason for this is unclear. Victor Harcourt, in an article entitled Contribution to Cause of Death in Journal of Law and Medicine, Vol 6, suggested this was a “policy decision” and postulated that “Parliament obviously did not accept that it was undesirable for a coroner to attribute blame in the findings or comments made provided a view was not expressed as to the criminal culpability of the contributor”.
The Supreme Court of Victoria considered the provisions of s 19(1)(e) of the Victorian Act in Chief Commissioner of Police v Hallenstein [1996] 2 VR 1. This case arose out of a coronial inquest into the death of a person shot by a police officer during an armed robbery. The coroner had found (inter alia) that the Victoria Police Force, through the agency of the police officer who fired the fatal shot, had contributed to the shooting and to the deceased’s cause of death.
It was argued on behalf of the plaintiff that an act or omission could not amount to contribution unless it gave rise to civil or criminal liability. The defendant argued that a finding of contribution necessarily involved a finding of a degree of blame on the part of the contributor but the legal concept of causation was not applicable to the coroner. Both arguments were rejected by the court.
Hedigan J said (at 16):
“In my view it was not the intention of the legislation that the coroner should be so limited in his or her consideration of, and findings about, the contribution by a person or persons to the cause of death of a deceased person that the coroner had to be satisfied that an act or omission of that person was such as to create legal liability in the person, civil or criminal, before a finding of contribution to the cause of death could be made. Notwithstanding that the power of comment was preserved, so as to enable the coroner to express opinions that do not amount to essential findings, the making and pronouncement of the s 19(1) findings is not only mandatory, if possible, but is of public significance and importance as being a statement by the appointed law officer of his conclusions as to how the death came about and who contributed to its occurrence and cause. The construction proposed on behalf of the Police Commissioner confines the concept of contribution to acts or omissions that create legal liability. This is unduly restrictive and inappropriate, having regard to the coroner’s function. Moreover, since the argument envisages the necessity to reach a state of satisfaction as to at least possible criminal liability, as well as civil liability, the interpretation proposed runs headlong into the prohibition imposed by s 19(3). A finding, as proposed, would imply that the person found to contribute may be guilty of an offence.
On the other hand, one might say the other extreme, the submission was put that the concept of contribution requires no more than the conclusion that there is ‘some degree of blame’ or ‘blame to some extent’. Whilst one is conscious of the difficulties of definition in this sphere, understanding is little advanced by this contention. The width of the proposition, if it can be so described, is such as to comprehend the most remote of influences, including the philosophy of violence containment as well as police culture, training and ideas, all of which attracted the coroner. Generally speaking, the law is cautious about unnecessary exposition of principle. The application of principle becomes dominated by facts. The issues of causation and contribution have bedevilled philosophers for centuries and have attracted consideration by superior courts in all jurisdictions and places for more than a century. The inclination to expound, in an authoritative way, the connection between human behaviour and consequences has proved seductive. The estimation of the nature and extent of this connection may be described as the evaluation of ‘contribution’. The law has also espoused minimalism in attempting definition of the causative or contributing effect of conduct. Nearly 50 years ago, a powerful High Court (Dixon CJ, Fullagar and Kitto JJ) described causation at 277 as ‘all ultimately a matter of common sense’ adding for good measure at 288 that ‘[i]n truth the conception in question is not susceptible of reduction to a satisfactory formula’: Fitzgerald v Penn (1954) 91 CLR 268.”
He went on to say (at 19-20):
“It is, I believe, sufficient to leave the matter without further elaboration on the basis of the common sense determination of contribution, rather than the consideration of contribution as a philosophical or scientific abstraction. In most cases, the determination that there has been contribution to the cause of death is likely to involve legal liability or culpability; but it is not the intention of the Act that it must necessarily be so or pronounced to be such. It is enough to say that, since it is not simply an exercise in the logical progression of events, some element of departure from the reasonable standards of behaviour will ordinarily be thought to be required, and must be properly established.”
Section 19(1)(e) was further considered by the Victorian Court of Appeal in Keown v Khan & Anor [1998] Vic SC 83 (unreported). In this case, there had been a coronial inquiry arising out of an incident in which a police officer, allegedly acting in self-defence, shot and killed a person who had threatened him with a hatchet. The coroner found that the deceased had contributed to her cause of death and exonerated the police officers involved in the matter. In discussing the finding that the police officer had acted in self-defence, Callaway J (with whom Ormiston and Batt JJ agreed) said:
“It will be noticed that I have consistently referred to ‘self-defence’ rather than ‘lawful self-defence’ or ‘justified’ or ‘excusable’ homicide. A coroner is not concerned with questions of law of that kind. Instead the coroner is to find the facts from which others may, if necessary, draw legal conclusions.
As paragraph 153 of the Norris Report said:
‘153.It is necessary to emphasise that if the coroner is no longer required to determine whether the cause of death was unlawful, and if so, who was guilty of the crime, the original purpose of the verdict, to indicate legal responsibility for the death, substantially disappears. If the coroner or jury is not to include any statement of legal responsibility or to express any conclusion of law on the matters he or the jury is required to determine as recommended in paragraph 125 above, this consequence is reinforced. The result is, as stated by the Brodrick Committee (para. 16.40):- “In future the function of an inquest should be simply to seek out and record as many of the facts concerning the death as public interest requires, without deducing from those facts any determination of blame.” The findings of the coroner or jury should in terms be findings of fact only. To quote the Brodrick Committee again:- “In many cases, perhaps the majority, the facts themselves will demonstrate quite clearly whether anyone bears any responsibility for the death; there is a difference between a form of proceedings which affords to others the opportunity to judge an issue and one which appears to judge the issue itself.” (ibid).’
The findings by a coroner as to how death occurred and the cause of death should, where that is possible, identify any person who contributed to the cause of death. Section 19(1)(e) serves no purpose other than to ensure that that is done. The reference to contribution to the cause of death reflects the commonplace truth that it is sufficient if a person's acts or omissions are a cause of a relevant event. Civil juries are, for example, regularly asked whether the negligence of the defendant was a cause of the plaintiff's injuries. The test of contribution is solely whether a person's conduct caused the death. It may have been the only cause or one of several causes. There are also cases where no one satisfies the description in s.19(1)(e), as in the case of a death solely from natural causes. In determining whether an act or omission is a cause or merely one of the background circumstances, that is to say a non-causal condition, it will sometimes be necessary to consider whether the act departed from a norm or standard or the omission was in breach of a recognized duty, but that is the only sense in which paragraph (e) mandates an inquiry into culpability. Adopting the principal recommendation of the Norris Report, Parliament expressly prohibited any statement that a person is or may be guilty of an offence. The reasons for that prohibition apply, with even greater force, to a finding of moral responsibility or some other form of blame: the proceeding is inquisitorial; the conclusion would be more indeterminate than a conclusion about legal responsibility; and there would be no prospect of a trial at which the person blamed might ultimately be vindicated by an acquittal.
It follows that a person who kills necessarily contributes to the cause of death and that that is none the less true where the killing is in lawful self-defence. A coroner is not concerned with the latter question but will ordinarily set out the relevant facts in the course of finding how death occurred and the cause of death. The facts will then speak for themselves, leaving readers of the record of investigation to make up their own minds about lawful self-defence or any similar issue. (That was the point made by Sir John Norris in paragraph 153 of his report.)” (footnotes omitted)
In reaching his decision, Callaway JA had regard to some of the English authorities on this topic. For example, in R v South London Coroner, Ex parte Thompson (1982) 126 SJ 625, 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 criminal trial ... The function of an inquest is to seek out and record as many of the facts concerning the death as [the] public interest requires.”
In Reg v Coroner for North Humberside and Scunthorpe, Ex parte Jamieson [1995] QB 1, Sir Thomas Bingham MR, in handing down the judgment of the court said (at 24):
“(5).. It may be accepted that in case of conflict the statutory duty to ascertain how the deceased came by his death must prevail over the prohibition in rule 42. But the scope for conflict is small. Rule 42 applies, and applies only, to the verdict. Plainly the coroner and the jury may explore facts bearing on criminal and civil liability. But the verdict may not appear to determine any question of criminal liability on the part of a named person nor any question of civil liability.
(6)There can be no objection to a verdict which incorporates a brief, neutral, factual statement: ‘the deceased was drowned when his sailing dinghy capsized in heavy seas’, ‘the deceased was killed when his car was run down by an express train on a level crossing’, ‘the deceased died from crush injuries sustained when gates were opened at Hillsborough Stadium’. But such verdict must be factual, expressing no judgment or opinion, and it is not the jury’s function to prepare detailed factual statements.”
It is clear therefore that the jurisdiction of the coroner is limited to making findings of fact. It is not his/her task to attribute or hint at blame. Can it be said, therefore, that in this case, the coroner exceeded his jurisdiction and thereby contravened the provisions of s 26(3) of the Act? I think it is likely that an ordinary member of the public, reading comments in the report, such as “Perre was responsible for sending the bomb”, “Perre was responsible in the sense that he constructed a bomb and either posted it or arranged for someone else to post it on his behalf”, and “Sergeant Bowen died when he opened the parcel bomb sent to him by Perre”, would conclude that Perre had committed the crime of murder.
There are, however, a number of essential elements which the Crown is required to prove beyond reasonable doubt before a person can be found guilty of the crime of murder. These include proof of an intention to kill or cause grievous bodily harm. The coroner has not however found that Perre had any such intention. He has simply recorded his findings as to the sequence of events which culminated in Sergeant Bowen’s death. For example, in an inquest concerned with the death of a pedestrian struck by a motor vehicle, such matters as the identity of the driver of the car, his/her level of intoxication by reason of alcohol or drugs, and the position of the car on the road, would all be relevant matters upon which the coroner could make findings of fact. A finding by the coroner that the driver of a car was affected by alcohol or drugs, or his/her motor vehicle was on the wrong side of the road, might lead to a subsequent determination of criminal or civil liability, but that consequence does not preclude the coroner from making the particular finding of fact.

In other words, the factual findings of themselves cannot be said to be findings of criminal or civil liability. A finding of criminal or civil liability requires the application of the relevant law to the facts in order to determine whether the essential elements of a given crime or civil obligation have been made out. It is not the coroner’s role to undertake this process, it is the role of the courts, and this is what s 26(3) was enacted to ensure.
As I have already mentioned, s 26(3) refers not only to findings of criminal or civil liability, but also any “suggestion” thereof. The addition of the word “suggestion” is liable to cause confusion as it might be argued that the mere finding of certain facts can, in cases such as the present, suggest or hint at criminal or civil liability and hence breach the section. This is due to the fact that certain acts, such as, in this case, sending a bomb, appear to have no possible legal justification. However, I do not think that s 26(3) should be read in such a way. The mere recital of relevant facts can not truly be said, of itself, to hint at criminal or civil liability. Even though some acts may not seem to be legally justifiable, they may often turn out to be just that. For example a shooting or stabbing will, in some circumstances, be justified as lawful self-defence. As I have stated, criminal or civil liability can only be determined through the application of the relevant law to the facts, and it is only the legal conclusions as to liability flowing from this process which are prohibited by s 26(3). Thus, the word “suggestion” in this section should properly be read as prohibiting the coroner from making statements such as “upon the evidence before me X may be guilty of murder” or “X may have an action in tort against Y” or statements such as “it appears that X shot Y without legal justification”. In other words, the term “suggestion” in s 26(3) prohibits speculation by the coroner as to criminal or civil liability. In the present case, the coroner has neither found nor suggested that Perre is criminally or civilly liable for his acts.
It is obvious that the facts of this case are unique. This has caused the delineation between a proper factual finding relating to the cause of death as opposed to a determination of criminal liability to become somewhat blurred. It would, however, lead to an absurd result if s 26(3) were to be read so strictly as to prevent the coroner from identifying a relevant factual matter surrounding a death, for example, the fact that a person died as a result of a collision with a car driven by X, or in the course of surgery, performed by Y. I have therefore concluded that the statement made by the coroner that “Perre sent the bomb” and the other statements which are the subject of criticism in these proceedings are relevant findings of fact which were reasonably open to the coroner on the evidence and they do not offend against the provisions of s 26(3). They should not therefore be set aside.

Application of Weissensteiner v R

The second ground upon which Perre seeks to set aside the findings of the coroner arises out of the reliance by the coroner on the decision of the High Court in Weissensteiner. Mr Caldicott submitted that the coroner in making his findings had misapplied that decision. This amounted to an irregularity in the proceedings which would justify an order that the findings be set aside in accordance with the provisions of s 28A.
The coroner required Perre to appear at the inquest pursuant to a summons issued pursuant to s 16(1)(e) of the Act. Perre was thereafter granted leave to be heard and was represented by counsel for most of the hearing. When being examined by counsel assisting the coroner, Perre declined to answer a large number of questions on the ground of self-incrimination. Perre did not call any evidence on his own behalf. He did, however, exercise his right to cross-examine witnesses, including the witness Allan Chamberlain. Some of the questions put to Chamberlain by Perre’s counsel were suggestive of inculpatory activity with respect to the sending and/or construction of the bomb.
In the course of discussing Chamberlain’s evidence and matters relevant to his credibility, the coroner said (in para 10.70):
“There is no evidence to justify a conclusion that Allan Chamberlain played any part in either the construction of, or the sending of the bomb to Sergeant Bowen at the NCA. Chamberlain has given lengthy statements to the police, he has had lengthy telephone conversations with Frank Carbone, some of which have been recorded without his knowledge, and he gave detailed evidence in court and was cross-examined at length by Mr Caldicott, counsel for Perre. Having regard to the totality of that evidence, which has not been contradicted by Perre, there is nothing upon which I could draw the conclusion that Chamberlain was involved. Perre’s refusal to give evidence in support of a number of allegations made by Mr Caldicott in cross-examination should not be regarded as evidence to the contrary of the allegations. However, it is clear that I am entitled to more readily accept the evidence of Chamberlain in view of that fact. In Weissensteiner v R (1993) 178 CLR 217 at 227 the High Court (Mason CJ, Deane and Dawson JJ) said:-
‘It has never really been doubted that when a party to litigation fails to accept an opportunity to place before the court evidence of facts within his or her knowledge which, if they existed or [sic], would explain or contradict the evidence against that party, the court may more readily accept that evidence. It is not just because uncontradicted evidence is easier or safer to accept than contradicted evidence. That is almost a truism. It is because doubts about the reliability of witnesses or about the inferences to be drawn from the evidence may be more readily discounted in the absence of contradictory evidence from a party who might be expected to give or call it.’”
When the coroner summarised his findings in para 11, he again referred to Weissensteiner and repeated the last sentence of the passage quoted above. Thereafter he set out his conclusions in paras 11.4, 11.5 and 11.6, which include the statement that “Perre was responsible in the sense that he constructed the bomb, and either posted it or arranged for someone else to post it on his behalf to Detective Sergeant Bowen.”
In considering the relevance of Weissensteiner, it is necessary to have regard to the facts of that case. Weissensteiner was a criminal prosecution for murder. The accused was charged with the murder of two persons and the theft of their boat. He had set off with them on a cruise in the boat. The other two persons were not seen again but the accused remained in possession of the boat. The case against the accused was circumstantial. There was a substantial body of evidence from which the jury might have concluded that the missing persons were dead and that the accused had not only stolen the boat but had been involved in their deaths. The accused did not give evidence. The prosecution case was that the guilt of the accused was to be inferred from the circumstances, particularly the unexplained disappearance of those whom it was alleged that the accused had murdered together with his possession of the boat and equipment which they owned and from which they had disappeared while on the voyage with him.
The High Court held (Mason CJ, Brennan, Deane, Dawson and Toohey JJ; Gaudron and McHugh JJ dissenting), that the trial judge had made no error by directing the jury that they could more safely draw the inferences which the prosecution alleged should be drawn when the accused elected not to give evidence of relevant facts which could be easily perceived to be in his knowledge.
The facts of Weissensteiner, however, were unusual. The unexplained disappearance of those whom it was alleged that the accused had murdered together with his possession of the boat and equipment belonging to them, and from which they had disappeared while on a voyage with him, clearly called for some explanation or contradiction from the accused. It was not the failure of the accused to give evidence which dictated the result, but rather his election not to give evidence of relevant facts which could easily be seen to be within his knowledge. It was not surprising that in those circumstances the normal process of reasoning dictated a finding of the guilt of the accused.
But, as was also said in Weissensteiner (Mason CJ, Deane and Dawson JJ) (at 228):
“Not every case calls for an explanation or contradiction in the form of evidence from the accused. There may be no facts peculiarly within the accused’s knowledge. Even if there are facts peculiarly within the accused’s knowledge the deficiencies in the prosecution case may be sufficient to account for the accused remaining silent and relying upon the burden of proof cast upon the prosecution. Much depends upon the circumstances of the particular case and a jury should not be invited to take into account the failure of the accused to give evidence unless that failure is clearly capable of assisting them in the evaluation of the evidence before them.”
In RPS v R 168 (2000) ALR 729, the High Court had occasion to discuss Weissensteiner. RPS was a criminal prosecution with respect to a number of sexual offences. The accused elected not to give evidence at his trial. The trial judge directed the jury that if they were satisfied that the accused could have given evidence from his own knowledge of the events about which the complainant had given evidence, they were entitled to conclude from his election not to deny or contradict her evidence, that the evidence of the accused would not have assisted him in the trial. The judge also said that the jury might treat the election of the accused not to put forward any such denial or contradiction as a circumstance which allowed the jury more readily to accept the evidence given by the witnesses for the Crown. The accused was found guilty of most of the counts against him. The High Court allowed the appeal. The court held that the directions given by the trial judge in respect to the election of the accused not to give evidence contravened s 20(2) of the Evidence Act 1995 (NSW). In so doing the court discussed the judge’s direction as to the significance to be attributed to the election by the accused not to give evidence. In their reasons, the judges re-affirmed what is usually described as the “right to silence”, and discussed the differing considerations which arise with respect to civil and criminal trials. After referring to the decisions in Jones v Dunkel (1959) 101 CLR 298 and R v Burdett (1820) 106 ER 873, the majority said (Gaudron ACJ, Gummow, Kirby and Hayne JJ) (at 737):
“[25].... It is necessary to keep at the forefront of consideration that the mode of reasoning which is described proceeds from the premise that the person who has not given evidence not only could shed light on the subject but also would ordinarily be expected to do so. ...
[26]In a civil trial there will very often be a reasonable expectation that a party would give or call relevant evidence. It will, therefore, be open in such a case to conclude that the failure of a party (or someone in that party’s camp) to give evidence leads rationally to an inference that the evidence of that party or witness would not help the party’s case and that:
‘where an inference is open from facts proved by direct evidence and the question is whether it should be drawn, the circumstance that the defendant disputing it might have proved the contrary had he chosen to give evidence is properly to be taken into account as a circumstance in favour of drawing the inference.’
[27].... By contrast, however, it will seldom, if ever, be reasonable to conclude that an accused in a criminal trial would be expected to give evidence. The most that can be said in criminal matters is that there are some cases in which evidence (or an explanation) contradicting an apparently damning inference to be drawn from proven facts could come only from the accused. In the absence of such evidence or explanation, the jury may more readily draw the conclusion which the prosecution seeks. As was said in Weissensteiner v The Queen :
‘[I]n a criminal trial, hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused.’ (emphasis added)
In a criminal trial, not only is an accused person not bound to give evidence, it is for the prosecution to prove its case beyond reasonable doubt. The observations by the court in Jones v Dunkel must not be applied in criminal cases without taking account of those considerations.” (footnotes omitted)
Callinan J in a separate but consenting judgment, said (at 756):
“The principles stated in Jones v Dunkel by their very nature presuppose that there is a need, or an occasion, for evidence to be called by a party, or an expectation that evidence could and should be called by a party. An accused person in criminal proceedings labours under no such need, occasion or expectation.”
McHugh J also delivered a separate judgment. He (together with Gaudron J) had been in dissent in Weissensteiner, but his discussion of the correct approach is helpful. He said (at 745-746):
“The ‘right to silence’ derives from the privilege against self-incrimination. That privilege is one of the bulwarks of liberty. History, and not only the history of totalitarian societies, shows that all too frequently those who have a right to obtain an answer soon believe that they have a right to the answer that they believe should be forthcoming. Because they hold that belief, often they do not hesitate to use physical and psychological means to obtain the answer they want. The privilege against self-incrimination helps to avoid this socially undesirable consequence. Nevertheless, as Professor Wigmore has pointed out:
‘In preserving the privilege ... we must resolve not to give it more than its due significance. We are to respect it rationally for its merits, not worship it blindly as a fetish.’
The privilege exists to protect the citizen against official oppression. We should not use it to bar ordinary processes of reasoning where they are applicable. The judgment of Windeyer J in Bridge v The Queen is authority for the proposition that the jury can consider the failure of the accused ‘to contradict on oath evidence that to his knowledge must be true or untrue’ because it ‘can logically be regarded as increasing the probability that it is true’. Weissensteiner supports the same proposition. It is true that the issue in Weissensteiner was ‘whether it is permissible for the trial judge to instruct the jury that inferences available to be drawn from facts proved by the Crown case can be drawn more safely when the accused elects not to give evidence on relevant facts which the jury perceives to be within his or her knowledge.’ But I can see no difference in logic or legal principle between more readily drawing an inference from silence and more readily treating evidence as reliable because of silence. But that said, I think it better to deal with the problem as Gaudron J and I suggested in Weissensteiner where we said:
‘In the context of the right to silence, it is important to bear in mind that it is the failure to provide an “explanation or answer ... as might be expected if the truth were consistent with innocence” ... which is of evidentiary significance and not the failure to give evidence as such. In many cases, an explanation can be offered without the giving of evidence ... Accordingly, directions should be given in terms of the unexplained facts, rather than in terms of the failure to give evidence or to meet the prosecution case generally or the failure to answer questions from investigating police ... And to avoid any possibility of the jury giving significance to the accused’s silence with respect to other matters, a direction, if one is to be given, should be precisely framed in terms of the particular facts which call for explanation in the sense indicated.’
Our judgment in that case was a dissenting one. What we said must be read in the light of the majority holding. But, subject to that qualification, I think that the above passage provides the most satisfactory reconciliation of the right to silence and legitimate processes of reasoning based on the lack of any denial or explanation from the accused in respect of facts which are not consistent with innocence and which are within his or her knowledge.” (footnotes omitted)
It is obvious from the discussion in RPS that the circumstances in which a Weissensteiner direction will be appropriate in a criminal matter will be fairly limited. It will arise where there are unexplained facts which are seen to be “peculiarly within the accused’s knowledge” and which would therefore require some explanation. This, however, was not such a case. Although the facts of this matter made the coronial inquest quasi criminal in its nature, Perre was not on trial. He was only one of many summonsed to give evidence about relevant matters concerning the death of Sergeant Bowen. This was an inquisitorial proceeding. The coroner was not bound by the rules of evidence and was entitled to exercise the extensive powers given to him by Statute to inform himself as he thought fit (s 22). This included the ability to hear and obtain evidence which would not necessarily be admissible in a criminal prosecution, hearsay evidence being an obvious example of such evidence. As part of his inquiry, the coroner was entitled to receive material without any obligation to disclose it to those appearing before him, and as I understand the matter, in this case some documentary material obtained by way of subpoena issued by the coroner was not disclosed to Perre or his legal advisers. There is no identification by the coroner in his reasons of any “facts peculiarly within [Perre’s] knowledge”, such as might have been appropriately answered by him in the proceedings. Perre was not given notice of any specific charges or allegations which called for, or raised, an expectation of a response. Perre, in any event, had a statutory entitlement [s 16(2)] to decline to answer any questions put to him on the ground of self-incrimination. That he exercised that right is not surprising as he had earlier been charged by the Director of Public Prosecutions with the murder of Sergeant Bowen. Furthermore, some of the questions put to him may have related to matters not necessarily relevant to the inquest, such as Perre’s possible implication in a cannabis plantation which had been located at Hidden Valley in the Northern Territory in 1993.
In my view, therefore, Weissensteiner was not relevant to these proceedings and it is difficult to perceive how it would ever arise in an inquiry of this kind. I do not believe, however, that the coroner’s apparent reliance on that decision resulted in an impermissible process of reasoning which caused him to fall into error such as to require this court to interfere. This was an extensive hearing which took place over a period of many months. The coroner heard evidence from a great number and variety of witnesses. He carefully analysed the evidence called before him and assessed the credibility of the various witnesses, some of whom he rejected as witnesses of truth. He was mindful “that some of the evidence ... might not be admissible in a criminal court. Some unfairness or illegality, which has not been ventilated ... may affect its admissibility” (para 11.2).
As part of his analysis of the evidence of the witness Chamberlain, the coroner had regard to matters put to Chamberlain by Mr Caldicott on Perre’s behalf in the course of a long and searching cross-examination. This included suggestions which sought to implicate Chamberlain in these events. Perre, however, did not give or call any evidence to support those suggestions. The coroner could only reach his conclusions on the evidence he heard or obtained in the course of his inquiry. Having considered that evidence and drawing appropriate inferences therefrom (which included the lack of any evidence to support suggestions made by Perre implicating Chamberlain), the coroner concluded that Chamberlain had not been involved. This was a finding clearly open to him on the evidence.

As I said in the course of argument, this was a case in which it was unnecessary for the coroner to resort to the legal principles espoused in Weissensteiner in order to reach his conclusion. The findings of fact made by the coroner were reasonably open on the evidence. I do not consider that the coroner’s reliance on Weissensteiner has led to any miscarriage or irregularity as would require this court to exercise its jurisdiction pursuant to s 28A.
The orders sought by the plaintiff in his summons dated 14 October 1999 (as amended) are refused.

[2000] SASC 279

24 August 2000